Exhibit 10.7
THIRD AMENDMENT TO CREDIT
AGREEMENT
THIS THIRD AMENDMENT TO CREDIT
AGREEMENT (this “ Third Amendment ”), dated
effective as of October 30, 2008, is entered into by and among BANK
OF AMERICA, N.A., a national banking association, as Administrative
Agent for itself and on behalf of the Lenders (herein so called)
now or hereafter made a party to the Credit Agreement referenced
below (in such capacity, “ Administrative Agent
”), BEHRINGER HARVARD SHORT-TERM OPPORTUNITY FUND I LP, a
Texas limited partnership (“ Borrower ”), and
BEHRINGER HARVARD 250/290 CARPENTER LP, a Texas limited partnership
(“ Subsidiary Guarantor ”), who agree as
follows:
BACKGROUND
A.
Borrower, Subsidiary Guarantor, and Administrative Agent have
executed that certain Credit Agreement dated as of September 1,
2005, as amended by the First Amendment to Credit Agreement (the
“ First Amendment ”) dated as of June 30,
2006 and further amended by the Second Amendment to Credit
Agreement (the “ Second Amendment ”) dated as of
August 30, 2008 (as so amended, the “ Credit Agreement
”). Pursuant to the terms of the Credit Agreement,
Borrower has executed and delivered to Bank of America, N.A., as a
Lender, a certain Promissory Note dated September 1, 2005, in the
original principal amount of $11,250,000.00, made payable to the
order of Bank of America, N.A. (as amended by the First Amendment
and the Second Amendment, the “ Note
”).
B.
Subsidiary Guarantor also executed and delivered to Administrative
Agent that certain Guaranty Agreement dated as of September 1, 2005
(as amended by the First Amendment and Second Amendment, the
“ Guaranty ”). The obligations of
Subsidiary Guarantor arising under the Guaranty are secured by,
among other things, that certain Deed of Trust, Assignment of Rents
and Leases, Security Agreement, Fixture Filing and Financing
Statement dated September 1, 2005, executed by Borrower for the
benefit of Administrative Agent, on behalf of the Lenders, recorded
as Instrument No. 2005-174 01724 in the Real Property Records of
Dallas County, Texas (as amended, the “ Deed of Trust
”).
C.
The Credit Agreement, the Note, the Guaranty, the Deed of Trust,
and all other documents or instruments executed in connection
therewith are hereinafter referred to, collectively, as the “
Loan Documents ”. All capitalized terms herein
shall have the meanings set forth in the Credit Agreement, unless
otherwise defined herein.
D.
The maturity date of the Loan is October 30, 2008 and
Borrower and Subsidiary Guarantor have requested that
Administrative Agent and the Lenders agree to extend the maturity
date of the Loan for a period of ten (10) months.
NOW, THEREFORE, in consideration of
the covenants, conditions and agreements hereinafter set forth, and
for other good and valuable consideration, the receipt and adequacy
of which are all hereby acknowledged, Borrower, Administrative
Agent and Subsidiary Guarantor covenant and agree as
follows:
THIRD AMENDMENT TO CREDIT
AGREEMENT
1
1.
EXTENSION OF MATURITY DATE . Hereinafter, the term
“Maturity Date” and all other references to the
maturity date of the Loan, in the Note and the other Loan Documents
shall mean August 30, 2009. The unpaid principal balance of
the Loan, together with all accrued but unpaid interest thereon,
shall be due and payable on the Maturity Date, as extended hereby.
Borrower hereby renews, but does not extinguish, the Note and the
liens, security interests and assignments created and evidenced by
the Deed of Trust and the other Loan Documents, and all of the Loan
Documents are hereby renewed and modified by extending the maturity
date thereof as set forth above. The extension evidenced by
this Agreement shall constitute the exercise of Borrower’s
extension option pursuant to Section 1.5 of the Credit Agreement,
notwithstanding that the terms of such extension option have not
been satisfied. Borrower and Administrative Agent hereby
acknowledge that, from and after the date of this Agreement,
Borrower shall have no further right or option to extend the
Maturity Date.
2.
FEES AND EXPENSES . Simultaneously with the execution
of this Agreement, Borrower shall (i) pay to Administrative Agent
all costs and expenses incurred by Administrative Agent in respect
of the preparation and recordation of this Agreement; and (ii) pay
to Administrative Agent, for the ratable benefit of the Lenders,
the sum of $70,312.50 (the “ Extension Fee ”),
representing the extension fee payable by Borrower to the Lenders
in connection with the extension of the Maturity Date of the
Loan. Borrower acknowledges and agrees that the Extension Fee
is a bona fide fee and is intended as reasonable compensation to
the Lenders for agreeing to extend the Maturity Date of the
Loan.
3.
AMENDMENTS TO CREDIT AGREEMENT .
3.1
Definitions . Except with respect to terms that are defined
in this Amendment or terms used in the Credit Agreement that are
redefined in this Amendment, capitalized terms used in this
Amendment shall have the meaning given such terms in the Credit
Agreement. Commencing on the date of this Amendment, (i) the terms
“Cash,” “Cash Equivalents,” and
“Tangible Net Worth” are hereby deleted from the Credit
Agreement, and (ii) the following capitalized terms shall have the
meaning set forth below when used in the Credit Agreement, and to
the extent such capitalized terms are also defined in the Credit
Agreement, such definitions are amended by this
Amendment:
“ Assets ” means,
with respect to any Person and without duplication, (1) all real
property, together with all buildings and improvements located on
such real property, owned in whole or in part by such Person, (2)
all fixtures, personal property and equipment owned by such Person,
and (3) all Liquid Assets of such Person; provided ,
however , that (i) the value of real property wholly owned
by such Person shall be determined based upon the fair value of
such real property, as set forth in a Current Appraisal of such
real property, (ii) the value of real property owned, in part, by
such Person shall be determined based upon the fair value of such
real property, as set forth in a Current Appraisal of such real
property, multiplied by such Person’s partial
ownership interest (expressed as a percentage of the total
ownership interests in such real property), and (iii) the value of
Equity Investments in another Person shall be the fair value of
such Equity Investment (based upon a Current Appraisal of such
Equity Investment or,
THIRD AMENDMENT TO CREDIT
AGREEMENT
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alternatively, if no Current
Appraisal of such Equity Investment is available, then based upon
the fair value, without duplication and as set forth in a Current
Appraisal, of all real property owned indirectly through such
Equity Investment, multiplied by such Person’s
percentage ownership interest (expressed as a percentage of the
Equity Interests owned in such other Person to the total Equity
Interests issued by such other Person). Borrower covenants and
agrees with Administrative Agent that, for purposes of determining
the value of the real property Assets of Borrower, Borrower shall
obtain and deliver to Administrative Agent Current Appraisals with
respect to all real property owned by Borrower, directly or
indirectly and in whole or in part, once every twelve (12) months;
provided , however , that if as of any Test Date,
Borrower has failed to deliver to Administrative Agent a Current
Appraisal for any such real property, then the value of such real
property shall be determined by Administrative Agent in its sole
discretion based upon Administrative Agent’s assessment of
relevant information readily available to Administrative Agent
regarding such real property.
“ Attributable
Indebtedness ” means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that
would appear on a balance sheet of such Person prepared as of such
date in accordance with GAAP, and (b) in respect of any Synthetic
Lease Obligation, the capitalized amount of the remaining lease
payments under the relevant lease that would appear on a balance
sheet of such Person prepared as of such date in accordance with
GAAP if such lease were accounted for as a capital
lease.
“ Base Rate ”
means, on any day, a simple rate per annum equal to the LIBOR Daily
Rate.
“ Base Rate Principal
” means LIBOR Daily Rate Principal.
“ BBA LIBOR Daily Rate
” means a fluctuating rate of interest per annum equal to the
British Bankers Association LIBOR Rate (“ BBA LIBOR
”), as published by Reuters (or other commercially available
source providing quotations of BBA LIBOR as selected by
Administrative Agent from time to time) as determined for each
Business Day at approximately 11:00 a.m. London time, two (2)
Business Days prior to the date in question, for U.S. dollar
deposits (for delivery on the first day of such interest period)
with a one month term, as adjusted from time to time in
Administrative Agent’s sole discretion for reserve
requirements, deposit insurance assessment rates and other
regulatory costs. If such rate is not available at such time
for any reason, then the rate will be determined by such alternate
method as reasonably selected by Administrative Agent.
“ Current Appraisal
” means, as to any real property or Equity Investment owned
by a Person, an “as is” appraisal (or update to a prior
“as is” appraisal) of such real property or Equity
Investment, as applicable, prepared by CB Richard
THIRD AMENDMENT TO CREDIT
AGREEMENT
3
Ellis, Integra Realty Resources,
Inc., Cushman & Wakefield Inc., or any other nationally
recognized appraisal firm acceptable to Administrative Agent, in
form and content reasonably satisfactory to Administrative Agent,
and bearing a date no more than twelve (12) months prior to the
applicable Test Date.
“ Equity Interests
” means, with respect to any Person and without duplication,
all of the shares of capital stock of (or other ownership or profit
interests in) such Person, all of the warrants, options or other
rights for the purchase or acquisition from such Person of shares
of capital stock of (or other ownership or profit interests in)
such Person, all of the securities convertible into or exchangeable
for shares of capital stock of (or other ownership or profit
interests in) such Person or warrants, rights or options for the
purchase or acquisition from such Person of such shares (or such
other interests), and all of the other ownership or profit
interests in such Person (including partnership, member or trust
interests therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests are
outstanding on any date of determination.
“ Equity Investment
” means, as to any Person, any direct or indirect acquisition
or investment by such Person, whether by means of (a) the purchase
or other acquisition of capital stock or other securities of
another Person, and (b) a loan, advance or capital contribution to,
Guarantee or assumption of debt of, or purchase or other
acquisition of any other debt or equity participation or interest
in, another Person, including any partnership or joint venture
interest in such other Person and any arrangement pursuant to which
the investor Guarantees any Liabilities of such other
Person.
“ GAAP ” means
generally accepted accounting principles in the United States set
forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board or such other principles as may be
approved by a significant segment of the accounting profession in
the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
“ Guarantee ”
means, as to any Person and without duplication, (a) any
obligation, contingent or otherwise, of such Person guaranteeing or
having the economic effect of guaranteeing any Liabilities or other
obligation payable or performable by another Person (the
“primary obligor”) in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or
indirect, (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Liabilities or other obligation,
(ii) to purchase or lease property, securities or services for the
purpose of assuring the obligee in respect of such Liabilities or
other obligation of the payment or performance of such Liabilities
or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or
level of income or cash flow of the
THIRD AMENDMENT TO CREDIT
AGREEMENT
4
primary obligor so as to enable the
primary obligor to pay such Liabilities or other obligation, or
(iv) entered into for the purpose of assuring in any other manner
the obligee in respect of such Liabilities or other obligation of
the payment or performance thereof or to protect such obligee
against loss in respect thereof (in whole or in part), or (b) any
Lien on any assets of such Person securing any Liabilities or other
obligation of any other Person, whether or not such Liabilities or
other obligation is assumed by such Person (or any right,
contingent or otherwise, of any holder of such Liabilities to
obtain any such Lien). The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount
of the related primary obligation, or portion thereof, in respect
of which such Guarantee is made
