Attached files
| file | filename |
|---|---|
| 8-K - Behringer Harvard Short-Term Liquidating Trust | v164513_8k.htm |
| EX-10.5 - Behringer Harvard Short-Term Liquidating Trust | v164513_ex10-5.htm |
| EX-10.2 - Behringer Harvard Short-Term Liquidating Trust | v164513_ex10-2.htm |
| EX-10.1 - Behringer Harvard Short-Term Liquidating Trust | v164513_ex10-1.htm |
| EX-10.4 - Behringer Harvard Short-Term Liquidating Trust | v164513_ex10-4.htm |
Exhibit
10.3
SECOND
MODIFICATION AGREEMENT
THIS
SECOND MODIFICATION AGREEMENT (this “Agreement”) is entered into as
of October 1, 2009 (the “Effective Date”), by and
between Credit Union Liquidity Services, LLC, a Texas limited liability company
formerly known as Texans Commercial Capital, LLC (“Lender”) and Behringer Harvard
Mountain Village, LLC (“Borrower”), a Colorado limited
liability company. Behringer Harvard Short-Term Opportunity Fund I
LP, a Texas limited partnership (“Guarantor”), as a guarantor,
executes this Agreement to evidence its consent to and agreement with the terms
and provisions contained herein.
Recitals
A. On
September 29, 2006, Borrower, as maker, executed that certain Note (as amended,
the “Note”), payable to
Lender, as payee, in the original principal amount of Thirty-one Million Six
Hundred Fifty Thousand and No/100 Dollars ($31,650,000.00). The Note
evidences a loan (the “Loan”) made by Lender to
Borrower. Certain terms and provisions of the Loan are set forth in
that certain Construction Loan Agreement (as amended, the “Loan Agreement”), dated
as of September 29, 2006, by and between Borrower and Lender.
B. Payment
of the Note and the outstanding indebtedness evidenced by the Note are secured
by, among other things, the liens, security interests, terms and provisions
granted by that certain Deed of Trust, Security Agreement, Financing Statement,
and Assignment of Rental, dated as of September 29, 2006, executed and delivered
by Borrower, as grantor, unto the Public Trustee of San Miguel County, Colorado,
as trustee, for the benefit of Lender, as beneficiary, recorded October 12, 2006
as Instrument No. 387559 in the real property records in San Miguel County,
Colorado (the “Deed of
Trust”) covering that certain property described in Exhibit
A attached hereto and incorporated herein for all purposes, together with
all improvements, appurtenances, other properties (whether real or personal),
rights and interests described in and encumbered by the Deed of Trust (the
“Mortgaged
Property”).
C. Payment
of the Note and the outstanding indebtedness evidenced by the Note are further
secured by, among other things, the terms and provisions contained by that
certain Guaranty Agreement, dated September 29, 2006, executed by Guarantor, as
guarantor, for the benefit of Lender, as amended by that certain First Amendment
to Guaranty Agreement dated effective as of September 25, 2008 (together, the
“Guaranty”)
D. Lender
is currently the owner and holder of the right to receive payments due under the
Note and the outstanding indebtedness evidenced by the Note, and the owner of
the liens, security interests, terms, and provisions granted by the Deed of
Trust.
E. Borrower
and Lender entered into that certain First Modification Agreement dated as of
September 25, 2008 (the “First
Modification”), which amended certain provisions of the Note and Loan
Agreement.
F. This
Agreement, the Loan Agreement, the Deed of Trust, and any and all other
documents executed in connection therewith, or relating in any way thereto, each
as amended or modified from time to time, are referred to hereinafter either
individually or collectively as the “Loan Documents.”
CULS / Behringer Harvard Mountain
Village, LLC
Second
Modification Agreement
G. Lender
and Borrower desire to modify certain terms and provisions of the Loan Documents
as set forth herein.
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, Lender and Borrower
hereby agree as follows:
Agreements
1. Defined
Terms. All capitalized terms in this Agreement which are not
otherwise defined herein shall have the meaning ascribed to such terms in the
Loan Agreement.
2. Continuing
Validity. All of the Loan Documents (including, without
limitation, the Note), as modified hereby, continue to be in full force and
effect. All monies due and payable under the Note shall continue to
be due and payable in accordance with the terms of the Note, as modified
hereby. Nothing herein contained shall affect or impair the validity
or priority of the lien and security interests granted by the Deed of Trust or
under any of the other Loan Documents.
3. Confirmation
of Loan Balances. Borrower hereby acknowledges, agrees, and
represents that:
(a) as
of the Effective Date, the outstanding principal balance of the Loan is
$8,797,576.51;
(b) as
of the Effective Date, the total amount spent by Borrower (including Loan
proceeds) to complete construction of the Improvements and perform all other
matters contemplated by the Plans and the Approved Budget is $26,917,879.68;
and
(c) as
of the Effective Date, $1,998,158.29 remains in the Interest
Reserve.
4. Amendment
of Certain Definitions and Provisions.
(a) The
definition of "Permitted Indebtedness" in Section 1.01 of the Loan Agreement is
hereby revised in its entirety to read as follows:
"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) trade Indebtedness incurred in the ordinary course of
business of operations and maintenance of the Property in an amount not to
exceed $300,000.00, which is not past due, (e) unsecured loans made by owners
(directly or indirectly) of interests in Borrower or Affiliates of such owners,
and (f) that certain Second Lien Deed of Trust given by Borrower for the benefit
of Lender dated October 1, 2009 as additional security for a loan from Lender to
Borrower’s affiliate, Behringer Harvard Mockingbird Commons, LLC.
CULS /
Behringer Harvard Mountain Village, LLC
Second
Modification Agreement
2
(b) The
definition of "Permitted Liens" in Section 1.01 of the Loan Agreement is hereby
revised in its entirety to read as follows:
"Permitted Liens"
means (a) the Permitted Exceptions, (b) Liens for taxes, assessments or
governmental charges or levies not yet due or which Borrower is actively
contesting in good faith by appropriate proceedings and in conformance with
Sections 4.10
and 4.11
hereof, (c) Liens for any other propose which Borrower is actively contesting in
good faith by appropriate proceedings and in conformance with Section 4.11 hereof,
(d) Liens in favor of Lender as contemplated by this Loan Agreement, and
(e) that certain Second Lien Deed of Trust given by Borrower for the
benefit of Lender dated October 1, 2009 as additional security for a loan from
Lender to Borrower’s affiliate, Behringer Harvard Mockingbird Commons,
LLC.
(c) The
following is hereby added as new clause (r) in Article VII of the Loan
Agreement:
(r) Guarantor
shall fail to strictly comply with Section 5(e) of the Guaranty, as
amended.
5. Acknowledgments
by Borrower and Guarantor.
(a) Except
as otherwise specified herein, the terms and provisions hereof shall in no
manner impair, limit, restrict, or otherwise affect the obligations of Borrower
or any third party to Lender, as evidenced by the Loan
Documents. Borrower and Guarantor hereby acknowledge, agree, and
represent that:
(i) To
the best knowledge of Borrower, Borrower is not in default under the Note, the
Deed of Trust, or any other Loan Documents after giving effect to the terms of
this Agreement;
(ii) Borrower
has no defenses, counter-claims, or offsets to the Note, Deed of Trust, or any
other Loan Documents, as modified herein;
(iii) Borrower
waives any and all defenses, counter-claims, or offsets to the enforcement of
the Note, Deed of Trust, or any other Loan Documents, as modified, renewed, and
extended herein, whether known or unknown;
(iv) The
Note, Deed of Trust, and other Loan Documents, as modified, renewed, and
extended herein, are in full force and effect.
(v) Borrower
and Guarantor have the power and requisite authority to execute, deliver, and
perform their obligations hereunder and under the Loan Documents, and are duly
authorized, and have taken all necessary action to authorize such person or
entity to execute, deliver and perform this Agreement and the Loan Documents and
will continue to be duly authorized to perform their obligations under this
Agreement and the Loan Documents.
CULS /
Behringer Harvard Mountain Village, LLC
Second
Modification Agreement
3
(vi) The
representations and warranties contained in the Loan Documents are true and
correct representations and warranties of Borrower, Guarantor, and third parties
making same, as the case may be, and are hereby remade to Lender as of the
Effective Date, subject to those matters set forth on Exhibit
B attached hereto and incorporated herein by this reference;
(vii) There
are no Leases in existence with respect to the Property or any portion
thereof;
(viii) Except
as set forth on Exhibit
B attached hereto, no Liens, whether choate or inchoate, encumber the
Property except Permitted Liens.
(ix) There
is no Construction Contract other than that certain Standard Form of Agreement
Between Owner and Contractor dated as of November 8, 2006 by and between
Borrower and RJM Homes, L.P.;
(x) No
Plans regarding the Improvements or the Mortgaged Property have been prepared by
any Person other than the vendors listed on Exhibit F to the First Modification;
true and correct copies of all such Plans have been provided to
Lender;
(xi) Borrower
contracted with Hunt & Joiner, San
Juan, Given & Associates, and Meeks Design Group to provide certain work and
Plans with regard to the Property; such work and Plans have been completed in
their entirety and paid for by Borrower, and said Plans are the sole property of
Borrower; and
(xii) All
references to “Borrower” or “Maker” in the Note (regardless of whether such
terms are capitalized) are references to Borrower.
(b) To
the extent Borrower has any claims, offsets, defenses, or counterclaims against
Lender or the repayment of all or a portion of the Loan, whether known or
unknown, fixed or contingent, the same are hereby forever irrevocably waived and
released in their entirety.
6. Lender's
Representations.
(a) As
of the Effective Date, Borrower is not in default under Article VII(a) of
the Loan Agreement and to Lender’s current actual knowledge, Borrower is
not in default under any other provision in Article VII of the Loan
Agreement. As used in this section, the words “Lender’s current
actual knowledge” mean and refer to the current actual knowledge of
Lender's sole portfolio manager with stewardship over the Loan as of the
Effective Date, not in his individual capacity but
solely in his capacity as an officer of Lender, limited to his current
consciousness, without any due diligence, inquiry, or investigation of any kind
or duty of inquiry or investigation and not including any constructive, imputed,
or implied knowledge.
(b) Lender
has the power and requisite authority to execute, deliver, and perform its
obligations hereunder and is duly authorized, and has taken all necessary action
to authorize the Person executing this Agreement, to execute and deliver this
Agreement.
CULS /
Behringer Harvard Mountain Village, LLC
Second
Modification Agreement
4
7. Financial
Statements and Reports. In addition to the Financial
Statements required by Section 4.01 of the Loan Agreement (and elsewhere in the
Loan Documents), Borrower shall cause the following to be delivered to
Lender: Within forty-five (45) days after the end of each Quarterly
Period, statements evidencing, in a manner reasonably satisfactory to Lender,
that Guarantor is in compliance with the Net Worth Covenant in Section 5(e) of
the Guaranty.
8. Joinder
of Guarantor. Contemporaneously with the execution and
delivery hereof, Borrower shall cause Guarantor to execute and deliver to Lender
that certain Second Amendment to Guaranty Agreement in the form of Exhibit C
attached hereto and incorporated herein by reference.
9. No Waiver
of Remedies. Except as may be expressly set forth herein,
nothing contained in this Agreement shall prejudice, act as, or be deemed to be
a waiver of any right or remedy available to Lender by reason of the occurrence
or existence of any fact, circumstance, or event constituting a default under
the Note or the other Loan Documents.
10. Release. Effective
as of the Effective Date, and in consideration for this Amendment and all
documents executed herewith, Borrower and Guarantor agree as
follows:
(a) For
the time period existing on and prior to the Effective Date and relating
exclusively to the Loan Documents and the loan memorialized therein, Borrower
and Guarantor fully and finally release and discharge Lender (and its officers,
directors, shareholders, representatives, employees, agents and attorneys) of
and from any and all defaults, potential defaults occurring on or prior to the
Effective Date, claims, damages or causes of action to, of or for the benefit
(whether directly or indirectly) of, Borrower or Guarantor, at law or in equity,
known or unknown, contingent or otherwise, whether asserted or unasserted,
whether statutory, in contract or in tort, as well as any other kind or
character of action now held, owned or possessed (whether directly or
indirectly) by Borrower or Guarantor on account of, arising out of, related to
or concerning, whether directly or indirectly, proximately or remotely, the Loan
Documents and accruing prior to the Effective Date (collectively, the “Released
Claims”);
(b) In
addition to the release set forth above, and not in limitation thereof, Borrower
and Guarantor each agree that it or he will never prosecute, or voluntarily
(unless required by law) aid in the prosecution of, any of the Released Claims,
whether by claim, counterclaim or otherwise. Borrower and Guarantor
agree that compulsory counterclaims shall not be deemed to fall within the
“unless required by law” proviso in the foregoing sentence.
11. Interest
Limitation. The terms and provisions of Section 9.15 of the
Loan Agreement are incorporated herein by this reference.
12. No
Novation. Borrower acknowledges and agrees that this Agreement
will not be considered a novation of account or a new contract but that all
rights, titles, powers, liens, security interests, and estates created by the
Deed of Trust securing the Note constitute valid and subsisting liens and
security interests against the Mortgaged Property.
CULS /
Behringer Harvard Mountain Village, LLC
Second
Modification Agreement
5
13. Costs and
Expenses. Contemporaneously with the execution and delivery
hereof, Borrower shall pay, or cause to be paid, Lender's costs and expenses
incident to the preparation and execution hereof and the consummation of the
transaction contemplated hereby, including, but not limited to, recording fees,
title insurance policy or endorsement premiums or other charges of Title
Company, and reasonable fees and expenses of legal counsel to
Lender. To the extent not prohibited by applicable law, Borrower will
pay all costs and expenses and reimburse Lender for any and all expenditures of
every character incurred or expended from time to time during the existence of
any default hereunder or under the Loan Documents, in connection with Lender's
evaluating, monitoring, administering, and protecting the Property, and
creating, perfecting, and realizing upon Lender's security interest in its liens
upon the Property, and all costs and expenses, including, without limitation,
all appraisal fees, consulting fees, filing fees, taxes, brokerage fees and
commissions, fees incident to any security interest lien and other title
searches and reports, escrow fees, attorney's fees, legal expenses, court costs,
costs incurred in connection with liquidation or sale of the Property, and all
other professional fees incurred in connection therewith. Any amount
to be paid under this Section by Borrower to Lender, to the extent not
prohibited by applicable law, shall bear interest from the date of demand at the
Maximum Rate.
14. Conditions
Precedent. It shall be a condition to the effectiveness of
this Agreement that, on or before the execution hereof by Lender, (a) no Event
of Default or Potential Default shall have occurred and be continuing, and (b)
Borrower shall have paid Lender the fees and expenses referred to in Section 13
above.
15. Additional
Documentation. From time to time, Borrower shall execute or
procure and deliver to Lender such other and further documents and instruments
evidencing, securing, or pertaining to the Loan or the Loan Documents as shall
be reasonably requested by Lender so as to evidence or effect the terms and
provisions hereof. Simultaneously with the execution of this
Agreement, Borrower shall cause to be delivered to Lender an opinion of counsel,
satisfactory to Lender as to form, substance, and rendering attorney, opining to
(i) the validity and enforceability of this Agreement and the terms and
provisions hereof, and any other agreement executed in connection with the
transaction contemplated hereby, (ii) the authority of Borrower and any
constituents of Borrower, to execute, deliver and perform its or their
respective obligations under the Loan Documents, as hereby modified, and (iii)
such other matters as reasonably requested by Lender.
16. Effectiveness
of the Loan Documents. Except as expressly modified by the
terms and provisions hereof, each of the terms and provisions of the Loan
Documents are hereby ratified and shall remain in full force and effect;
provided, however, that any reference in any of the Loan Documents to the Loan,
the terms of the Loan, any defined terms, or to any of the other Loan Documents
shall be deemed, from and after the Effective Date, to refer to the Loan, the
terms of the Loan, defined terms, and to such other Loan Documents, as modified
hereby.
17. Governing
Law. THE TERMS AND PROVISIONS HEREOF SALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
CULS /
Behringer Harvard Mountain Village, LLC
Second
Modification Agreement
6
18. Waiver of
Jury Trial. BORROWER, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, HEREBY KNOWINGLY, INTENTIONALLY, IRREVOCABLY,
UNCONDITIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL,
WAIVES, RELINQUISHES AND FOREVER FORGOES THE RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THIS
AGREEMENT OR THE LOAN DOCUMENTS OR ANY CONDUCT, ACT OR OMISSION OF BORROWER OR
LENDER, OR ANY OF THEIR DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES,
AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH BORROWER OR LENDER, IN
EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE.
19. Time. Time
is of the essence in the performance of the covenants contained herein and in
the Loan Documents.
20. Binding
Agreement. This Agreement shall be binding upon the heirs,
executors, administrators, personal representatives, successors, and assigns of
the parties hereto; provided, however, the foregoing shall not be deemed or
construed to (i) permit, sanction, authorize, or condone the assignment of all
or any part of the Mortgaged Property or any of Borrower's rights, titles, or
interests in and to the Mortgaged Property, except as expressly authorized in
the Loan Documents, or (ii) confer any right, title, benefit, cause of action,
or remedy upon any person or entity not a party hereto, which such party would
not or did not otherwise possess.
21. Headings. The
section headings are inserted for convenience of reference only and shall in no
way alter, amend, define, or be used in the construction or interpretation of
the text of such section.
22. Construction. Whenever
the context hereof so requires, reference to the singular shall include the
plural and likewise, the plural shall include the singular; words denoting
gender shall be construed to mean the masculine, feminine, or neuter, as
appropriate; and specific enumeration shall not exclude the general, but shall
be construed as cumulative of the general recitation. In the event of
any conflict between the terms and conditions of this Agreement and the other
Loan Documents, the terms and conditions of this Agreement shall
govern. Unless otherwise indicated, any reference in this Agreement
to a Section or Exhibit shall be a reference to such Section herein or Exhibit
hereto.
23. Severability. If
any clause or provision of this Agreement is or should ever be held to be
illegal, invalid, or unenforceable under any present or future law applicable to
the terms hereof, then and in that event, it is the intention of the parties
hereto that the remainder of this Agreement shall not be affected thereby, and
that in lieu of each such clause or provision of this Agreement that is illegal,
invalid, or unenforceable, such clause or provision shall be judicially
construed and interpreted to be as similar in substance and content to such
illegal, invalid or unenforceable clause or provision, as the context thereof
would reasonably suggest, so as to thereafter be legal, valid, and
enforceable.
24. Counterparts. To
facilitate execution, this Agreement may be executed in as many counterparts by
original or facsimile or email transmission as may be convenient or
required. It shall not be necessary that the signature and
acknowledgment of, or on behalf of, each party, or that the signature and
acknowledgment of all persons required to bind any party, appear on each
counterpart. All counterparts shall collectively constitute a single
instrument. It shall not be necessary in making proof of this
Agreement to produce or account for more than a single counterpart containing
the respective signatures and acknowledgment of, or on behalf of, each of the
parties hereto.
CULS /
Behringer Harvard Mountain Village, LLC
Second
Modification Agreement
7
25. Amendment. The
terms and conditions of this Agreement may not be modified, altered, or
otherwise amended except by an instrument in writing executed by Borrower and
Lender.
26. No Oral
Agreements. In consideration of the modification of the Loan
as provided herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto (i) agree
that each party's execution of this Agreement constitutes an acknowledgment that
such party has read and understands this Agreement, and that it is intended to
be part of and is incorporated by reference into each of the Loan Documents;
(ii) acknowledges receipt of the following Notice, and (iii) to the extent
allowed by law, agrees to be bound by the terms of this Agreement and the
Notice:
NOTICE: THIS
DOCUMENT AND ALL OTHER DOCUMENTS RELATING TO THIS LOAN CONSTITUTE A WRITTEN LOAN
AGREEMENT WHICH REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT
BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[Signature Pages
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CULS /
Behringer Harvard Mountain Village, LLC
Second
Modification Agreement
8
Exhibit
10.3
IN
WITNESS WHEREOF, Borrower and Lender have caused this Agreement to be duly
executed by their duly authorized officers, to be effective as of the date first
above written.
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BORROWER:
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BEHRINGER
HARVARD MOUNTAIN
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VILLAGE, LLC, a Colorado
limited liability
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company
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By:
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Name: Gerald
J. Reihsen, III
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Title: Executive
Vice President-Corporate Development & Legal and
Secretary
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STATE
OF TEXAS
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§
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§
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COUNTY
OF DALLAS
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§
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On this
_____ day of October 2009, before me, the undersigned Notary Public in and for
the State of Texas, personally appeared Gerald J. Reihsen, III to me personally
known who being by me duly sworn did say that he is the Executive Vice
President-Corporate Development & Legal and Secretary of Behringer Harvard
Mountain Village, LLC, a Colorado limited liability company, executing the
foregoing instrument, that the instrument was signed on behalf of Behringer
Harvard Mountain Village, LLC by authority, and said Gerald J. Reihsen, III
acknowledged the execution of the instrument to be the voluntary act and deed of
Behringer Harvard Mountain Village, LLC.
Witness
my hand and official seal.
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Notary
Public
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Borrower’s Signature
Page CULS / Behringer Harvard Mountain Village,
LLC
Second
Modification Agreement
Exhibit
10.3
Behringer
Harvard Short-Term Opportunity Fund I LP, a Texas limited partnership, executes
this Agreement to evidence its consent to, and agreement with, the terms and
provisions contained herein.
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GUARANTOR:
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BEHRINGER
HARVARD SHORT-TERM OPPORTUNITY FUND I LP,
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a
Texas limited partnership
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By:
Behringer Harvard Advisors II LP,
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a
Texas limited partnership,
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its
general partner
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By:
Harvard Property Trust, LLC,
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a
Delaware limited liability company,
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its
general partner
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By:
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Name: Gerald
J. Reihsen, III
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Title: Secretary
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STATE
OF TEXAS
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§
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§
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COUNTY
OF DALLAS
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§
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On this
___ day of October 2009, before me, the undersigned Notary Public in and for the
State of Texas, personally appeared Gerald J. Reihsen, III to me personally
known, who being by me duly sworn did say that he is the Secretary of Harvard
Property Trust, LLC, in its capacity as the general partner of Behringer Harvard
Advisors II LP, a Texas limited partnership, in its capacity as the general
partner of Behringer Harvard Short-Term Opportunity Fund I LP, a Texas limited
partnership, executing the foregoing instrument, that the instrument was signed
on behalf of the limited partnership by authority of the limited partnership;
and said Gerald J. Reihsen, III acknowledged the execution of the instrument to
be the voluntary act and deed of the limited partnership.
Witness
my hand and official seal.
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Notary
Public
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Guarantor’s
Signature Page
CULS /
Behringer Harvard Mountain Village, LLC
Second
Modification Agreement
Exhibit
10.3
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LENDER:
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CREDIT UNION LIQUIDITY
SERVICES,
LLC, a Texas limited
liability company
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By:
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Name: Bill
Henderson
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Title: Treasurer
of the Board of
Managers
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STATE
OF TEXAS
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§
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§
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COUNTY
OF DALLAS
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§
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On this
_____ day of October 2009, before me, the undersigned Notary Public in and for
the State of Texas, personally appeared Bill Henderson to me personally known
who being by me duly sworn did say that he is the Treasurer of the Board of
Managers of Credit Union Liquidity Services, LLC, a Texas limited liability
company, executing the foregoing instrument, that the instrument was signed on
behalf of the limited liability company by authority of the limited liability
company; and said Bill Henderson acknowledged the execution of the instrument to
be the voluntary act and deed of the limited liability company.
Witness
my hand and official seal.
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Notary
Public
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Lender’s
Signature Page
CULS /
Behringer Harvard Mountain Village, LLC
Second
Modification Agreement
Exhibit
10.3
EXHIBIT
A
The
Mortgaged Property
LOT
SS165AB-R,
Town of
Mountain Village, Colorado,
A Replat
of Lots SS165-A and SS165-B,
According
to the plat recorded November 22, 2006 in Plat Book 1 at page 3759 as Reception
No. 388573.
TOGETHER
WITH the Road Access Easement Agreement, recorded May 17, 2006 at Reception No.
384207, as amended by that certain First Amendment recorded January 22, 2009 at
Reception No. 405488; Subject to the terms, conditions, provisions and
obligations contained therein;
LESS AND
EXCEPT all rights to minerals and oil, gas or other hydrocarbons located on, in
or under the subject property, without any right of surface entry for
exploration, development or extraction, as reserved to The Telluride Company in
Deed recorded in Book 494 at page 22 and in Book 515 at page 626;
COUNTY OF
SAN MIGUEL
STATE OF
COLORADO
Exhibit
A
CULS /
Behringer Harvard Mountain Village, LLC
Second
Modification Agreement
Exhibit
10.3
EXHIBIT
B
Exceptions
to Certain Representations and Warranties
None.
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Exhibit
B – Page 1
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CULS
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Second
Modification Agreement
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