IS EXPRESSLY AGREED THAT INDEBTEDNESS INCURRED BY BORROWER IN THE
PAST AND CONSISTENT WITH THE ABOVE SHALL BE PERMITTED INDEBTEDNESS.
9.
HEDGING AGREEMENTS.
THE FOLLOWING NEW DEFINITION OF "HEDGING
AGREEMENTS" IS HEREBY ADDED TO SECTION 1.01 OF THE LOAN AGREEMENT:
"HEDGING ARRANGEMENT" MEANS A HEDGE, CALL, SWAP, COLLAR, FLOOR, CAP, OPTION,
FORWARD SALE OR PURCHASE OR OTHER CONTRACT OR SIMILAR ARRANGEMENT (INCLUDING ANY
OBLIGATIONS TO PURCHASE OR SELL ANY COMMODITY OR SECURITY AT A FUTURE DATE FOR A
SPECIFIC PRICE) WHICH IS ENTERED INTO TO REDUCE OR ELIMINATE OR OTHERWISE
PROTECT AGAINST THE RISK OF FLUCTUATIONS IN PRICES OR RATES, INCLUDING INTEREST
RATES, FOREIGN EXCHANGE RATES, COMMODITY PRICES AND SECURITIES PRICES.
10.
LIMITATION ON HEDGING.
THE FOLLOWING NEGATIVE COVENANT IS HEREBY
ADDED TO THE LOAN AGREEMENT AS SECTION 5.18:
5.18.
LIMITATION ON HEDGING.
THE BORROWER SHALL NOT (A) PURCHASE,
ASSUME, OR HOLD A SPECULATIVE POSITION IN ANY COMMODITIES MARKET OR FUTURES
MARKET OR ENTER INTO ANY HEDGING ARRANGEMENT FOR SPECULATIVE PURPOSES; OR (B) BE
PARTY TO OR OTHERWISE ENTER INTO ANY HEDGING ARRANGEMENT WHICH (I) IS ENTERED
INTO FOR REASONS OTHER THAN AS A PART OF ITS NORMAL BUSINESS OPERATIONS AS A
RISK MANAGEMENT STRATEGY AND/OR HEDGE AGAINST CHANGES RESULTING FROM MARKET
CONDITIONS RELATED TO THE BORROWER'S FINANCINGS AND OPERATIONS, OR
(II) OBLIGATES THE BORROWER TO ANY MARGIN CALL REQUIREMENTS.
11.
PREPAYMENT.
SECTION 2.07(A) OF THE LOAN AGREEMENT IS HEREBY
REVISED IN ITS ENTIRETY TO READ AS FOLLOWS:
(A)
AT ANY TIME AND FROM TIME TO TIME BORROWER MAY, UPON FIVE
(5) BUSINESS DAYS' WRITTEN NOTICE TO LENDER, PREPAY THE PRINCIPAL OF THE LOAN
THEN OUTSTANDING, IN WHOLE OR IN PART, WITHOUT PENALTY OR PREMIUM; PROVIDED,
HOWEVER, THAT EACH PREPAYMENT OF LESS THAN THE FULL OUTSTANDING PRINCIPAL
BALANCE OF THE LOAN SHALL BE IN AN AMOUNT EQUAL TO AT LEAST ONE HUNDRED THOUSAND
DOLLARS ($100,000.00) AND INTEGRAL MULTIPLES THEREOF.
12.
REPRESENTATIONS AND WARRANTIES.
AS OF THE AMENDMENT EFFECTIVE
DATE, THE FOLLOWING SPECIFIC PROVISIONS IN ARTICLE III OF THE LOAN AGREEMENT ARE
HEREBY AMENDED AND RESTATED IN THEIR ENTIRETY TO READ AS FOLLOWS:
4
3.01(A)
BORROWER.
BORROWER IS A LIMITED LIABILITY COMPANY DULY FORMED,
VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE STATE OF DELAWARE
AND IN ACCORDANCE WITH THE ORGANIZATIONAL DOCUMENTS OF BORROWER.
BORROWER IS
DULY AUTHORIZED TO CONDUCT BUSINESS IN TEXAS AND IN EACH OTHER JURISDICTION, IF
ANY, IN WHICH THE NATURE OF ITS PROPERTIES, ASSETS OR ACTIVITIES REQUIRE SUCH
AUTHORIZATION.
EXCEPT AS DISCLOSED IN WRITING TO LENDER, NO MEMBER OF BORROWER
HAS TRANSFERRED, ASSIGNED, PLEDGED OR MORTGAGED ITS INTEREST IN BORROWER OR ANY
PROFITS OR PROCEEDS THEREFROM.
3.01(B)
GUARANTORS.
BEHRINGER HARVARD MOCKINGBIRD COMMONS GP, LLC IS A
LIMITED LIABILITY COMPANY DULY FORMED, VALIDLY EXISTING AND IN GOOD STANDING
UNDER THE LAWS OF THE STATE OF TEXAS AND IN ACCORDANCE WITH ITS ORGANIZATIONAL
DOCUMENTS.
EACH OTHER GUARANTOR IS DULY FORMED, VALIDLY EXISTING AND IN GOOD
STANDING UNDER THE LAWS OF THE STATE OF ITS FORMATION AND IN ACCORDANCE WITH THE
ORGANIZATIONAL DOCUMENTS OF SUCH PERSON.