Attached files

file filename
8-K - Behringer Harvard Short-Term Liquidating Trustv164513_8k.htm
EX-10.5 - Behringer Harvard Short-Term Liquidating Trustv164513_ex10-5.htm
EX-10.2 - Behringer Harvard Short-Term Liquidating Trustv164513_ex10-2.htm
EX-10.1 - Behringer Harvard Short-Term Liquidating Trustv164513_ex10-1.htm
EX-10.3 - Behringer Harvard Short-Term Liquidating Trustv164513_ex10-3.htm

Exhibit 10.4          

SECOND AMENDMENT TO GUARANTY AGREEMENT

This SECOND AMENDMENT TO GUARANTY AGREEMENT ("Amendment") is entered into effective as of October 1, 2009 (the "Effective Date"), 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 (as amended and/or modified, the "Loan Agreement") with respect to a loan in the original principal amount of Thirty-one Million Six Hundred Fifty Thousand and No/100 Dollars ($31,650,000.00) (the "Loan").  The Loan is evidenced by a Note (as amended and/or modified, the "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 (as amended and/or modified, if applicable, the "Security Instrument") encumbering the Mortgaged Property described in the Security Instrument.  Guarantor guaranteed the payment of certain amounts under the Loan Documents under the terms of a Guaranty Agreement dated as of September 29, 2006 (as amended, the "Guaranty").
 
B.           Borrower and Lender entered into that certain First Modification Agreement dated as of September 25, 2008 (the "First Modification"), and in connection therewith, among other things, (i) Guarantor executed and delivered to Lender that certain First Amendment to Guaranty Agreement (the "First Amendment to Guaranty") dated as of September 25, 2008, and (ii) Borrower executed and delivered to Lender that certain First Amendment to Deed of Trust, Security Agreement, Financing Statement, and Assignment of Rental (the "First Amendment to DOT"), dated September 25, 2008, filed October 1, 2008 as Reception No. 404057 in the Official Public Records of San Miguel County, Colorado.
 
C.           The Note, the Loan Agreement, the Security Instrument, and all other documents that evidence and secure the Loan, as the same may have been amended and/or modified in writing, are collectively referred to as the "Loan Documents".
 
D.           Borrower and Lender have agreed to make certain changes to the Loan Documents and desire to enter into a Second Modification Agreement of even date herewith (the "Second Modification") to document such changes
 
E.           As a condition precedent to Lender entering into the Second Modification, Lender requires that the Guarantor execute this Amendment.

CULS / Behringer Harvard Mountain Village, LLC
Second Amendment to Guaranty Agreement

 
 

 

NOW, THEREFORE, in order to induce Lender to execute the Second Modification, and for good and valuable consideration, the receipt of which is hereby acknowledged, 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 are modified in connection with the Second 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 claims or offsets against, or defenses or counterclaims to, the terms and provisions of and the obligations created and evidenced by the Guaranty, and to the extent any such claims exist, whether known or unknown, Guarantor hereby irrevocably waives same; and (e) certifies that the representations and warranties contained in the Guaranty are true and correct representations and warranties of Guarantor, and hereby remakes to Lender such representations and warranties as of the date hereof.
 
2.           Liquidity Requirement.  The Liquidity Requirement (and reporting obligations related thereto) set forth in Sections 2 and 3 of the First Modification are hereby deleted in their entirety.  Lender hereby waives any prior failure to comply with such Liquidity Requirement.
 
3.           Net Worth Covenant.  As of the Effective Date, the following covenant is hereby added as new Section 5(e) of the Guaranty:
 
(e)           Net Worth Covenant.  Guarantor shall, so long as its obligations under this Guaranty continue, at all times maintain a Tangible Net Worth of not less than Twenty-Five Million and No/100 US Dollars ($25,000,000.00).  “Tangible Net Worth” means, as of any date, the Net Worth of Guarantor plus Affiliate Debt (if any) minus all assets of Guarantor which would be classified as intangible assets under GAAP, including but not limited to goodwill (whether representing the excess cost over book value of assets acquired or otherwise), patents, trademarks, trade names, copyrights, franchises, deferred charges, and capitalized servicing rights minus all indebtedness owing to Guarantor from (i) affiliates of Guarantor, and (ii) shareholders, members, officers or partners of Guarantor.  “Net Worth” of Guarantor means, as of any date, an amount equal to all assets of Guarantor minus Guarantor’s liabilities, each as determined by GAAP.  “Affiliate Debt” means indebtedness of Guarantor to (i) affiliates of Guarantor, or (ii) shareholders, members, officers or partners of Guarantor or owners of direct or indirect interests in partners of Guarantor (including specifically, without limitation, Behringer Harvard Holdings, LLC, a Delaware limited liability company).  Additionally, Guarantor shall, within forty-five (45) days after the end of each Quarterly Period (as that term is defined in the Loan Agreement), deliver to Lender statements evidencing, in a manner reasonably satisfactory to Lender, that Guarantor is in compliance with the Tangible Net Worth covenant set forth herein.  Time is of the essence in the performance of Guarantor’s obligations under this Guaranty.
 
CULS / Behringer Harvard Mountain Village, LLC
Second Amendment to Guaranty Agreement

 
2

 

4.           Distributions and Dividends.  As of the Effective Date, the following covenant is hereby added as new Section 5(f) of the Guaranty:
 
(f)           Distributions and Dividends.  Guarantor shall not, so long as its obligations under this Guaranty continue, make or allow to be made any Distributions or Dividends at any time.  “Distributions” means, with respect to Guarantor, the payment of any return on income or proceeds on or with respect to any partner’s, shareholder’s, member’s or other owner’s investment and/or capital or other contribution to or account with respect to Guarantor (whether by cash or other property), or the purchase of any ownership interest in Guarantor, or any income or proceeds therefrom.  “Dividends” means, with respect to Guarantor, dividends (whether by cash, property or preferred stock) or other distributions of capital stock or partnership interests, or the redemption or acquisition of stock or any partnership interest unless made contemporaneously from the net proceeds of the sale of such stock or partnership interest to an unaffiliated third party.
 
5.           Waiver of Right to Jury Trial.  GUARANTOR, 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 GUARANTY OR ANY CONDUCT, ACT OR OMISSION OF GUARANTOR OR LENDER, OR ANY OF THEIR DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH GUARANTOR OR LENDER, IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
 
6.           Liability.  Without limiting the generality of Section 1 above, the provisions of Section 24 of the Guaranty are hereby specifically confirmed and shall remain in full force and effect.
 
[Signature Pages Follow]
 
CULS / Behringer Harvard Mountain Village, LLC
Second Amendment to Guaranty Agreement

 
3

 
 
IN WITNESS WHEREOF, Guarantor and Lender have signed and delivered this Amendment to be effective as of the Effective Date.
 
GUARANTOR:
 
BEHRINGER HARVARD SHORT-TERM OPPORTUNITY FUND I LP,
a Texas limited partnership
 
By:
Behringer Harvard Advisors II LP,
 
a Texas limited partnership,
 
its general partner
       
 
By:
Harvard Property Trust, LLC,
   
a Delaware limited liability company,
   
its general partner
       
   
By:
  
   
Name:  Gerald J. Reihsen, III
   
Title:  Secretary

STATE OF TEXAS
§
 
§
COUNTY OF DALLAS
§

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.

  
Notary Public

CULS / Behringer Harvard Mountain Village, LLC
Second Amendment to Guaranty Agreement

 
4

 
 
IN WITNESS WHEREOF, Guarantor and Lender have signed and delivered this Amendment to be effective as of the Effective Date.
 
LENDER:
 
CREDIT UNION LIQUIDITY SERVICES, LLC, a Texas limited liability company
(formerly known as Texans Commercial Capital)
 
By:
  
Name:  Bill Henderson
Title:  Treasurer of the Board of Managers

STATE OF TEXAS
§
 
§
COUNTY OF DALLAS
§

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.

  
Notary Public

CULS / Behringer Harvard Mountain Village, LLC
Second Amendment to Guaranty Agreement

 
5