Exhibit 10.4
FIRST AMENDMENT TO GUARANTY
AGREEMENT
This FIRST AMENDMENT TO GUARANTY
AGREEMENT (“ Amendment ”) is entered into to be
effective as of
,
2008, 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 (“ 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 of even date with the Note (the “ Security Instrument ”) encumbering the
Mortgaged Property described in the Security Instrument. (The
Note, the Loan Agreement, the Security Instrument, and all other
documents that evidence and secure the Loan collectively are
referred to as the “ Loan Documents ”.) Guarantor
guaranteed the payment of certain amounts under the Loan Documents
under the terms of a Guaranty Agreement dated as of
September 29, 2006 (the “ Guaranty ”).
B.
Borrower and
Lender have agreed to enter into a First Modification Agreement to
modify certain terms and conditions of the Loan (the “
Modification ”).
C.
As a condition of
agreeing to the Modification, Lender requires that the Guarantor
execute this Amendment.
NOW, THEREFORE, in order to induce
Lender to execute the Modification, and in consideration thereof,
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 may be modified in connection with the
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 (or irrevocably waives any)
claims or offsets against, or defenses or counterclaims to, the
terms and provisions of and the obligations created and evidenced
by th
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