SECOND AMENDMENT TO GUARANTY AGREEMENT
Exhibit
10.4
SECOND AMENDMENT TO GUARANTY
AGREEMENT
This
SECOND AMENDMENT TO GUARANTY AGREEMENT ("Amendment") is entered into
effective as of October 1, 2009 (the "Effective Date"), by and
between Behringer Harvard Short-Term Opportunity Fund I LP, a Texas limited
partnership ("Guarantor"), as guarantor, and
Credit Union Liquidity Services, LLC, a Texas limited liability company
(formerly known as Texans Commercial Capital, LLC, a Texas limited liability
company) ("Lender"), as
lender.
RECITALS
A. Behringer
Harvard Mountain Village, LLC, a Colorado limited liability company ("Borrower"), and Lender have
executed that certain Construction Loan Agreement dated as of September 29, 2006
(as amended and/or modified, the "Loan Agreement") with respect
to a loan in the original principal amount of Thirty-one Million Six Hundred
Fifty Thousand and No/100 Dollars ($31,650,000.00) (the "Loan"). The Loan is
evidenced by a Note (as amended and/or modified, the "Note") from Borrower to
Lender, dated as of September 29, 2006, in the amount of the
Loan. The Note and Loan are secured by a Deed of Trust, Security
Agreement, Financing Statement, and Assignment of Rental dated of even date with
the Note (as amended and/or modified, if applicable, the "Security Instrument")
encumbering the Mortgaged Property described in the Security
Instrument. Guarantor guaranteed the payment of certain amounts under
the Loan Documents under the terms of a Guaranty Agreement dated as of September
29, 2006 (as amended, the "Guaranty").
B. Borrower
and Lender entered into that certain First Modification Agreement dated as of
September 25, 2008 (the "First
Modification"), and in connection therewith, among other things, (i)
Guarantor executed and delivered to Lender that certain First Amendment to
Guaranty Agreement (the "First
Amendment to Guaranty") dated as of September 25, 2008, and
(ii) Borrower executed and delivered to Lender that certain First Amendment
to Deed of Trust, Security Agreement, Financing Statement, and Assignment of
Rental (the "First Amendment to
DOT"), dated September 25, 2008, filed October 1, 2008 as Reception No.
404057 in the Official Public Records of San Xxxxxx County,
Colorado.
C. The
Note, the Loan Agreement, the Security Instrument, and all other documents that
evidence and secure the Loan, as the same may have been amended and/or modified
in writing, are collectively referred to as the "Loan Documents".
D. Borrower
and Lender have agreed to make certain changes to the Loan Documents and desire
to enter into a Second Modification Agreement of even date herewith (the "Second Modification") to
document such changes
E. As
a condition precedent to Lender entering into the Second Modification, Lender
requires that the Guarantor execute this Amendment.
CULS /
Behringer Harvard Mountain Village, LLC
Second
Amendment to Guaranty Agreement
NOW,
THEREFORE, in order to induce Lender to execute the Second Modification, and for
good and valuable consideration, the receipt of which is hereby acknowledged,
Guarantor agrees as follows:
1. Reaffirmation. Guarantor
hereby (a) ratifies and reaffirms the terms and conditions of the Guaranty; (b)
acknowledges that the Guaranty remains in full force and effect without any
exoneration; (c) agrees that the Loan Documents, as the same are modified in
connection with the Second Modification, will continue to be guaranteed by the
Guarantor as and to the full extent provided in the Guaranty; (d) acknowledges
that there are no claims or offsets against, or defenses or counterclaims to,
the terms and provisions of and the obligations created and evidenced by the
Guaranty, and to the extent any such claims exist, whether known or unknown,
Guarantor hereby irrevocably waives same; and (e) certifies that the
representations and warranties contained in the Guaranty are true and correct
representations and warranties of Guarantor, and hereby remakes to Lender such
representations and warranties as of the date hereof.
2. Liquidity
Requirement. The Liquidity Requirement (and reporting
obligations related thereto) set forth in Sections 2 and 3 of the First
Modification are hereby deleted in their entirety. Lender hereby
waives any prior failure to comply with such Liquidity Requirement.
3. Net Worth
Covenant. As of the Effective Date, the following covenant is
hereby added as new Section 5(e) of the Guaranty:
(e) Net Worth
Covenant. Guarantor shall, so long as its obligations under
this Guaranty continue, at all times maintain a Tangible Net Worth of not less
than Twenty-Five Million and No/100 US Dollars
($25,000,000.00). “Tangible Net Worth” means, as
of any date, the Net Worth of Guarantor plus Affiliate Debt
(if any) minus
all assets of Guarantor which would be classified as intangible assets under
GAAP, including but not limited to goodwill (whether representing the excess
cost over book value of assets acquired or otherwise), patents, trademarks,
trade names, copyrights, franchises, deferred charges, and capitalized servicing
rights minus
all indebtedness owing to Guarantor from (i) affiliates of Guarantor, and (ii)
shareholders, members, officers or partners of Guarantor. “Net Worth” of Guarantor
means, as of any date, an amount equal to all assets of Guarantor minus Guarantor’s
liabilities, each as determined by GAAP. “Affiliate Debt” means
indebtedness of Guarantor to (i) affiliates of Guarantor, or (ii) shareholders,
members, officers or partners of Guarantor or owners of direct or indirect
interests in partners of Guarantor (including specifically, without limitation,
Behringer Harvard Holdings, LLC, a Delaware limited liability
company). Additionally, Guarantor shall, within forty-five (45) days
after the end of each Quarterly Period (as that term is defined in the Loan
Agreement), deliver to Lender statements evidencing, in a manner reasonably
satisfactory to Lender, that Guarantor is in compliance with the Tangible Net
Worth covenant set forth herein. Time is of the essence in the
performance of Guarantor’s obligations under this Guaranty.
CULS /
Behringer Harvard Mountain Village, LLC
Second
Amendment to Guaranty Agreement
2
4. Distributions and
Dividends. As of the Effective Date, the following covenant is
hereby added as new Section 5(f) of the Guaranty:
(f) Distributions and
Dividends. Guarantor shall not, so long as its obligations
under this Guaranty continue, make or allow to be made any Distributions or
Dividends at any time. “Distributions” means, with
respect to Guarantor, the payment of any return on income or proceeds on or with
respect to any partner’s, shareholder’s, member’s or other owner’s investment
and/or capital or other contribution to or account with respect to Guarantor
(whether by cash or other property), or the purchase of any ownership interest
in Guarantor, or any income or proceeds therefrom. “Dividends” means, with respect
to Guarantor, dividends (whether by cash, property or preferred stock) or other
distributions of capital stock or partnership interests, or the redemption or
acquisition of stock or any partnership interest unless made contemporaneously
from the net proceeds of the sale of such stock or partnership interest to an
unaffiliated third party.
5. Waiver
of Right to Jury Trial. GUARANTOR, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, HEREBY KNOWINGLY, INTENTIONALLY, IRREVOCABLY, UNCONDITIONALLY
AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVES,
RELINQUISHES AND FOREVER FORGOES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THIS GUARANTY
OR ANY CONDUCT, ACT OR OMISSION OF GUARANTOR OR LENDER, OR ANY OF THEIR
DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY
OTHER PERSONS AFFILIATED WITH GUARANTOR OR LENDER, IN EACH OF THE FOREGOING
CASES, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
6. Liability. Without
limiting the generality of Section 1 above, the provisions of Section 24 of the
Guaranty are hereby specifically confirmed and shall remain in full force and
effect.
[Signature Pages
Follow]
CULS /
Behringer Harvard Mountain Village, LLC
Second
Amendment to Guaranty Agreement
3
IN WITNESS WHEREOF, Guarantor
and Lender have signed and delivered this Amendment to be effective as of the
Effective Date.
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GUARANTOR:
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BEHRINGER
HARVARD SHORT-TERM OPPORTUNITY FUND I LP,
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a
Texas limited partnership
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By:
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Behringer
Harvard Advisors II LP,
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a
Texas limited partnership,
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its
general partner
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By:
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Harvard
Property Trust, LLC,
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a
Delaware limited liability company,
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its
general partner
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By:
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Name: Xxxxxx
X. Xxxxxxx, III
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Title: Secretary
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STATE
OF TEXAS
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§
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§
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COUNTY
OF DALLAS
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§
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On this
___ day of October 2009, before me, the undersigned Notary Public in and for the
State of Texas, personally appeared Xxxxxx X. Xxxxxxx, III to me personally
known, who being by me duly sworn did say that he is the Secretary of Harvard
Property Trust, LLC, in its capacity as the general partner of Behringer Harvard
Advisors II LP, a Texas limited partnership, in its capacity as the general
partner of Behringer Harvard Short-Term Opportunity Fund I LP, a Texas limited
partnership, executing the foregoing instrument, that the instrument was signed
on behalf of the limited partnership by authority of the limited partnership;
and said Xxxxxx X. Xxxxxxx, III acknowledged the execution of the instrument to
be the voluntary act and deed of the limited partnership.
Witness
my hand and official seal.
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Notary
Public
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CULS /
Behringer Harvard Mountain Village, LLC
Second
Amendment to Guaranty Agreement
4
IN WITNESS WHEREOF, Guarantor
and Lender have signed and delivered this Amendment to be effective as of the
Effective Date.
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LENDER:
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CREDIT UNION LIQUIDITY
SERVICES, LLC, a Texas limited liability company
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(formerly
known as Texans Commercial Capital)
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By:
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Name: Xxxx
Xxxxxxxxx
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Title: Treasurer
of the Board of
Managers
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STATE
OF TEXAS
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§
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COUNTY
OF DALLAS
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§
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On this
_____ day of October 2009, before me, the undersigned Notary Public in and for
the State of Texas, personally appeared Xxxx Xxxxxxxxx to me personally known
who being by me duly sworn did say that he is the Treasurer of the Board of
Managers of Credit Union Liquidity Services, LLC, a Texas limited liability
company, executing the foregoing instrument, that the instrument was signed on
behalf of the limited liability company by authority of the limited liability
company; and said Xxxx Xxxxxxxxx acknowledged the execution of the instrument to
be the voluntary act and deed of the limited liability company.
Witness
my hand and official seal.
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Notary
Public
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CULS /
Behringer Harvard Mountain Village, LLC
Second
Amendment to Guaranty Agreement
5
