Exhibit 10.5
FIRST AMENDMENT TO DEED OF TRUST,
SECURITY AGREEMENT, FINANCING STATEMENT, AND ASSIGNMENT OF
RENTAL
THIS FIRST AMENDMENT TO DEED OF
TRUST, SECURITY AGREEMENT, FINANCING STATEMENT, AND ASSIGNMENT OF
RENTAL (this “ Amendment ”) is entered into as
of this day of
,
2008, by and between Credit Union Liquidity Services, LLC, a Texas
limited liability company (formerly known as Texans Commercial
Capital, LLC, a Texas limited liability company) (“
Lender ”), and Behringer Harvard Mountain Village, LLC
(“ Borrower ”), a Colorado limited liability
company.
Recitals
A.
Borrower and Lender have executed
that certain Construction Loan Agreement dated as of
September 29, 2006 (“ 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) (the “ Loan ”). The Loan is
evidenced by a Note (“ 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 as of September 29, 2006 recorded as Instrument
No. 387559, in the real property records in San Miguel County,
Colorado (the “ Deed of Trust ”) encumbering,
inter alia , the real property of which is more particularly
described on Exhibit A attached hereto and incorporated
herein by this reference. Simultaneously with the execution
hereof, Borrower and Lender entered into a First Modification
Agreement (“ Modification Agreement ”) to modify
certain terms and conditions of the Loan. (The Note, the Loan
Agreement, the Deed of Trust, the Modification Agreement, and all
other documents that evidence and secure the Loan, as modified from
time to time, collectively are referred to as the “ Loan
Documents ”.)
B.
Borrower and Lender now propose to
modify certain of the terms and provisions of the Deed of
Trust.
NOW, THEREFORE, for and in
consideration of the premises and the mutual covenants and
agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower and Lender hereby agree as
follows:
Agreements
1.
Defined Terms
. All capitalized terms in
this Amendment which are not otherwise defined herein shall have
the meaning ascribed to such terms in the Deed of Trust.
2.
Amendment of Certain
Definitions and Provisions .
(a)
The references to October 1,
2009 and October 1, 2010 appearing in the definition of
“Note” in Section 1.1 of th
