Exhibit 10.1
FIRST AMENDMENT TO
NOTE AND CONSTRUCTION LOAN AGREEMENT
This FIRST AMENDMENT TO NOTE AND
CONSTRUCTION LOAN AGREEMENT (this “ Amendment
” ) is made as of September 24, 2008 (the “
Amendment Effective Date ” ) by and between
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) (
“ Borrower ” ), and CREDIT UNION
LIQUIDITY SERVICES, LLC, a Texas limited liability company f/k/a
TEXANS COMMERCIAL CAPITAL, LLC ( “ Lender
” ).
WHEREAS, Borrower and Lender entered
into that certain Construction Loan Agreement dated as of
September 30, 2005, pursuant to which Lender loaned to
Borrower (the “ Loan ”) up to the
principal sum of $34,047,458.00 (the “ Loan
Agreement ”) as further evidenced by one certain
promissory note dated as of September 30, 2005 in the original
principal amount of $34,047,458.00, executed by Borrower and
payable to the order of Lender (the “ Note
”); and
WHEREAS, as security for the
obligations of Borrower under the Loan Agreement and the Note,
Borrower 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 Borrower 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 Borrower 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
”); and
WHEREAS, the Loan Agreement, Note,
Deed of Trust and any and all other documents evidencing and/or
securing the indebtedness described in the Note, as same may have
been previously amended, are referred to collectively as the
“ Loan Documents ” ); and
WHEREAS, in connection with the
Loan, Behringer Harvard Mockingbird Commons GP, LLC, a Texas
limited liability company, and Behringer Harvard Short Term
Opportunity Fund I, LP, a Texas limited partnership (each a “
Guarantor ” and collectively the “
Guarantors ”) entered into those certain
Guaranty Agreements dated as of September 30, 2005;
and
WHEREAS, the original Maturity Date
of the Note was October 1, 2007; and
WHEREAS, pursuant to
Section 4(b) of the Note, Borrower previously extended
the Maturity Date to October 1, 2008; and
WHEREAS, Borrower and Lender have
agreed to make certain changes to the Loan Documents, and desire to
enter into this Amendment to document such changes;
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NOW THEREFORE, for valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, Borrower and Lender agree as follows:
1.
Defined
Terms . Each capitalized term
used but not defined herein has the meaning assigned to such term
in the Loan Agreement or the other Loan Documents.
2.
Minimum Sale
Price . The following new
Section 5.18 is hereby added to the Loan
Agreement:
5.18.
Minimum Sale
Price . Borrower shall not
sell a residential condominium unit on the Property for an amount
less than $200.00 per gross square foot without the prior written
consent of Lender (which consent may be withheld by Lender in its
sole and absolute discretion).
3.
Mandatory
Principal Reduction Payments . As a condition
precedent to the effectiveness of the amendments in Sections 4
through 11 below, Borrower shall, on the Amendment Effective Date,
make a principal prepayment to Lender by wire transfer in the
amount of $5,000,000.00. Borrower’s failure to make
such payment on or before five (5) days after the Amendment
Effective Date shall constitute an immediate Event of Default under
the Note and Loan Agreement, and in such event Lender may, at
Lender’s option, accelerate the Loan without notice or demand
of any kind, all of which are specifically waived by Borrower,
including, without limitation, demand, notice of intent to
accelerate, and notice of acceleration. Borrower shall not be
entitled to notice of failure to make the above payment. For
avoidance of doubt, the amendments in Sections 4 through 11 below
shall be effective only upon Lender’s receipt of the entire
$5,000,000.00 principal reduction in accordance with the terms of
this Section 3.
4.
First
Amendment to Deed of Trust . Concurrently with the
execution of this Amendment, Borrower shall execute and deliver to
Lender a First Amendment to Amended and Restated Deed of Trust,
Security Agreement, Financing Statement and Assignment of Rental
(the “ First
Amendment to Deed of Trust ”). It is
expressly understood and agreed by Borrower and Lender that the
First Amendment to Deed of Trust shall not be effective (and shall
not be recorded) until Borrower has paid to Lender all of the
principal reduction payments totaling $5,000,000.00 required by
Section 3 above. Upon such occurrence, Lender shall
complete the date in the first line of the First Amendment to Deed
of Trust and record the document in the real property records of
Dallas County, Texas.
5.
Leasing
. Without
limiting the general prohibition against leasing any portion of the
Residential Condominium or the Future Development Area Unit
contained in Section 4.04 of the Loan Agreement, Lender agrees
that Borrower may by written notice to Lender designate up to five
(5) residential condominium units (or more, if approved in
writing in advance by Lender in its sole discretion) as units which
Borrower desires to lease, and Lender agrees that Borrower shall be
permitted to lease such units provided that (i) Lender shall
have approved in writing (in its reasonable discretion) the
specific unit to be leased (each a “ Potential Leased Unit ”), (ii) so long
as Borrower or any subsidiary or affiliate of Borrower owns such
unit, the terms of any such lease shall be normal and customary for
similar units in Dallas, Texas, and (iii) Lender shall
have
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received from Borrower the
Release Price for such Potential Leased Unit pursuant to
Article VI of the Deed of Trust.
6.
Extension of
Maturity Date . The definition of
“Maturity Date” in Section 2 of the Note is hereby
revised in its entirety to read as follows:
“
Maturity Date ” means October 1, 2009, as such
date may be extended pursuant to Section 4(b) of this
Note.
7.
Modification
of Extension Option .
Section 4(b) of the Note is hereby revised in its
entirety to read as follows:
(b)
Notwithstanding
anything to the contrary contained herein, so long as no Event of
Default or Potential Default has occurred and is continuing, Lender
shall, upon satisfaction of all of the following conditions, extend
the Maturity Date until October 1, 2010:
(i)
Maker shall
deliver a written request for such extension to Lender on or before
a date which is more than thirty (30) days but not more than ninety
(90) days prior to October 1, 2009;
(ii)
Maker shall,
during the period from and after September 16, 2008 and on or
before October 1, 2009 (and specifically excluding any
principal prepayments required to be made before September 16,
2008), make principal reduction payments totaling $5,000,000.00,
either through sales of condominium units and release of such units
pursuant to Article VI of the Deed of Trust or through cash
payments. It is expressly understood and agreed by Maker that
any principal reduction payment received in connection with a
partial release of the Future Development Area Unit pursuant to
Section 6.3 of the Deed of Trust shall not be included in
determining if Maker has made the required $5,000,000.00 principal
reduction, except to the extent that such paydown on account of the
release of the Future Development Area Unit exceeds $3,020,000.00;
and
(iii)
Lender shall have
received from an appraiser mutually acceptable to Lender and
Borrower (it being agreed that CBRE, Cushman Wakefield, and
Integra, or any successor entities to such companies, are approved)
an Appraisal of the Mortgaged Property (as defined in the Deed of
Trust) then remaining subject to the lien of the Deed of Trust
dated as of a date no more than 90 days prior to October 1,
2009, and the appraised value of such Mortgaged Property as
determined by such Appraisal is not less than the quotient of
(x) the outstanding principal balance of the Obligations on
October 1, 2009, divided by (y) seventy-five percent
(75%).
8.
Permitted
Indebtedness . The definition of
“Permitted Indebtedness” in Section 1.01 of the
Loan Agreement is hereby revised in its entirety to read as
follows:
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“
Permitted Indebtedness ” means (a) the Loan;
(b) property taxes and insurance premiums accrued but not
delinquent; (c) Indebtedness for items permitted under the
Approved Budget for which no Advance has yet been made for payment
and which is not past due; (d) the ANB Construction Loan (and
any refinancings thereof); (e) Debt arising under any Hedging
Arrangement between Borrower and a swap counterparty permitted
under Section 5.18; (f) unsecured trade Indebtedness
incurred in the ordinary course of business of operation and
maintenance of the Aggregate Property, which is not past due; and
(g) unsecured loans made by owners (directly or indirectly) of
interests in Borrower or Affiliates of such owners. It is
expressly agreed that Indebtedness incurred by Borrower in the past
and consistent with the above shall be Permitted
Indebtedness.
9.
Hedging
Agreements . The following new
definition of “Hedging Agreements” is hereby added to
Section 1.01 of the Loan Agreement:
“Hedging
Arrangement” means a hedge, call, swap, collar, floor, cap,
option, forward sale or purchase or other contract or similar
arrangement (including any obligations to purchase or sell any
commodity or security at a future date for a specific price) which
is entered into to reduce or e
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