FIRST AMENDMENT TO NOTE AND CONSTRUCTION LOAN AGREEMENTConstruction Loan Agreement |
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BEHRINGER HARVARD SHORT TERM OPPORTUNITY FUND I LP | BEHRINGER HARVARD MOCKINGBIRD COMMONS LLC | Behringer Harvard Mockingbird Commons, LP | CREDIT UNION LIQUIDITY SERVICES, LLC | TEXANS COMMERCIAL CAPITAL, LLC. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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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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