Exhibit 10.2
INSTRUMENT PREPARED BY:
Bryan L. Larson, Esq.
Fulbright & Jaworski L.L.P.
2200 Ross Avenue, Suite 2800
Dallas, Texas 75201
FIRST AMENDMENT TO
AMENDED AND RESTATED DEED OF TRUST, SECURITY AGREEMENT,
FINANCING STATEMENT AND ASSIGNMENT OF RENTAL
Dallas, Dallas County,
Texas
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STATE OF TEXAS
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KNOW ALL PERSONS BY THESE
PRESENTS:
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COUNTY OF DALLAS
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This amendment (“
Amendment ”) is executed to be effective as of the
day of September, 2008 by
BEHRINGER HARVARD MOCKINGBIRD COMMONS LLC, a Delaware limited
liability company (successor in interest by merger to Behringer
Harvard Mockingbird Commons, LP, a Texas limited partnership),
whose address is 15601 Dallas Parkway, Suite 600, Addison,
Texas 75001 (“ Grantor ”) and CREDIT UNION
LIQUIDITY SERVICES, LLC, a Texas limited liability company f/k/a
Texans Commercial Capital, LLC (“ Lender
”). All capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to them pursuant to the
Deed of Trust (as hereinafter defined).
RECITALS
A.
Grantor and
Lender entered into that certain Construction Loan Agreement dated
as of September 30, 2005 (the “ Loan Agreement
”), pursuant to which Lender loaned to Grantor up to the
principal sum of $34,047,458.00 (the “ Loan ”)
as further evidenced by one certain promissory note dated as of
September 30, 2005 (the “Note”) in the original
principal amount of $34,047,458.00 executed by Grantor and payable
to the order of Lender.
B.
As security for
the obligations of Grantor under the Loan Agreement and the Note,
Grantor executed and delivered to Lender, among other things,
(i) that certain Amended and Restated Deed of Trust, Security
Agreement, Financing Statement, and Assignment of Rental, dated
September 30, 2005, executed by Grantor to Joel B. Fox and/or
John C. O’Shea, as trustee for the benefit of Lender,
covering the property described therein and recorded
October 4, 2005 as Instrument No. 200503532798, Official
Records of Dallas County, Texas (the “ Deed of Trust
”) and (ii) that certain Absolute Assignment of Leases
and Rents from Grantor to Lender, dated September 30, 2005,
covering the property described therein and recorded as Instrument
No. 200503532799, Official Records of Dallas County, Texas
(the “ Assignment ”).
C.
Grantor and
Lender have agreed to amend the Deed of Trust as hereinafter set
forth.
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NOW, THEREFORE,
in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Grantor and Lender hereby agrees as
follows:
AGREEMENT
1.
Release
Price . Effective as of the
date first above written, the definition of “Release
Price” in Section 6.1 of the Deed of Trust is hereby
amended and restated in its entirety to read as
follows:
“
Release Price ” means (i) for a Residence that is
a Potential Leased Unit (as defined in the First Amendment to Note
and Construction Loan Agreement by and between Grantor and Lender),
the amount equal to $225 per gross square foot, and (ii) for
any other Residence, the amount equal to one hundred percent (100%)
of the Net Sales Proceeds but in no event less than $250 per gross
square foot.
2.
Release
Conditions . Effective as of the
date first above written, Section 6.2 of the Deed of Trust is
hereby amended and restated in its entirety to read as
follows:
Section 6.2
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Release
Conditions . Notwithstanding
anything to the contrary contained in this Deed of Trust or any of
the other Loan Documents, so long as no Event of Default or
Potential Default has occurred and is continuing, then Grantor
shall, upon a Permitted Sale of a Residence, be entitled to obtain
a partial release of said Residence from the lien of this Deed of
Trust upon satisfaction of the following terms and
conditions:
(a)
Grantor shall pay
to Beneficiary, in cash, th
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