Exhibit 10.2
INSTRUMENT PREPARED BY:
Bryan L. Larson, Esq.
Fulbright & Jaworski L.L.P.
2200 Ross Avenue, Suite 2800
Dallas, Texas 75201
FIRST AMENDMENT TO
AMENDED AND RESTATED DEED OF TRUST, SECURITY AGREEMENT,
FINANCING STATEMENT AND ASSIGNMENT OF RENTAL
Dallas, Dallas County, Texas
STATE OF TEXAS
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KNOW ALL PERSONS BY THESE PRESENTS:
COUNTY OF DALLAS
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This amendment ("Amendment") is executed to be effective as of the
day of
September, 2008 by 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), whose address is 15601
Dallas Parkway, Suite 600, Addison, Texas 75001 ("Grantor") and CREDIT UNION
LIQUIDITY SERVICES, LLC, a Texas limited liability company f/k/a Texans
Commercial Capital, LLC ("Lender").
All capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to them pursuant to the Deed
of Trust (as hereinafter defined).
RECITALS
A.
GRANTOR AND LENDER ENTERED INTO THAT CERTAIN CONSTRUCTION LOAN
AGREEMENT DATED AS OF SEPTEMBER 30, 2005 (THE "LOAN AGREEMENT"), PURSUANT TO
WHICH LENDER LOANED TO GRANTOR UP TO THE PRINCIPAL SUM OF $34,047,458.00 (THE
"LOAN") AS FURTHER EVIDENCED BY ONE CERTAIN PROMISSORY NOTE DATED AS OF
SEPTEMBER 30, 2005 (THE "NOTE") IN THE ORIGINAL PRINCIPAL AMOUNT OF
$34,047,458.00 EXECUTED BY GRANTOR AND PAYABLE TO THE ORDER OF LENDER.
B.
AS SECURITY FOR THE OBLIGATIONS OF GRANTOR UNDER THE LOAN
AGREEMENT AND THE NOTE, GRANTOR 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 GRANTOR 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 GRANTOR 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").
C.
GRANTOR AND LENDER HAVE AGREED TO AMEND THE DEED OF TRUST AS
HEREINAFTER SET FORTH.
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NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING AND FOR OTHER GOOD AND
VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY
ACKNOWLEDGED, GRANTOR AND LENDER HEREBY AGREES AS FOLLOWS:
AGREEMENT
1.
RELEASE PRICE.
EFFECTIVE AS OF THE DATE FIRST ABOVE WRITTEN, THE
DEFINITION OF "RELEASE PRICE" IN SECTION 6.1 OF THE DEED OF TRUST IS HEREBY
AMENDED AND RESTATED IN ITS ENTIRETY TO READ AS FOLLOWS:
"RELEASE PRICE" MEANS (I) FOR A RESIDENCE THAT IS A POTENTIAL LEASED UNIT (AS
DEFINED IN THE FIRST AMENDMENT TO NOTE AND CONSTRUCTION LOAN AGREEMENT BY AND
BETWEEN GRANTOR AND LENDER), THE AMOUNT EQUAL TO $225 PER GROSS SQUARE FOOT, AND
(II) FOR ANY OTHER RESIDENCE, THE AMOUNT EQUAL TO ONE HUNDRED PERCENT (100%) OF
THE NET SALES PROCEEDS BUT IN NO EVENT LESS THAN $250 PER GROSS SQUARE