EXHIBIT 99.4
================================================================================
GUARANTY OF RECOURSE OBLIGATIONS
made by
Behringer Harvard REIT I, Inc.
as guarantor,
in favor of
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
Dated as of April 21, 2005
GUARANTY OF RECOURSE OBLIGATIONS
This GUARANTY (this "GUARANTY"), dated as of April 21, 2005, made by
BEHRINGER HARVARD REIT I, INC., a Maryland corporation, having an address at
00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 ("GUARANTOR"), in favor of
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., a Delaware corporation (together
with its successors and assigns, hereinafter referred to as "LENDER"), having an
address at 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000.
R E C I T A L S:
A. Pursuant to that certain Loan Agreement dated as of the date
hereof (as the same may be amended, modified, supplemented or replaced from time
to time, the "LOAN AGREEMENT") between BEHRINGER HARVARD UTAH AVENUE LP
("BORROWER") and Lender, Lender has agreed to make a loan (the "LOAN") to
Borrower in the principal amount of $20,000,000, subject to the terms and
conditions of the Loan Agreement;
B. As a condition to Lender's making the Loan, Lender is requiring
that Guarantor execute and deliver to Lender this Guaranty; and
C. Guarantor hereby acknowledges that it will materially benefit
from Lender's agreeing to make the Loan;
NOW, THEREFORE, in consideration of the premises set forth herein and as
an inducement for and in consideration of the agreement of Lender to make the
Loan pursuant to the Loan Agreement, Guarantor hereby agrees, covenants,
represents and warrants to Lender as follows:
1. DEFINITIONS.
(a) All capitalized terms used and not defined herein shall
have the respective meanings given such terms in the Loan Agreement.
(b) The term "GUARANTEED OBLIGATIONS" means (i) Borrower's
Recourse Liabilities and (ii) from and after the date that any Springing
Recourse Event occurs, payment of all the Debt as and when the same is due in
accordance with the Loan Documents (and whether accrued prior to, on or after
such date).
2. GUARANTY.
(a) Guarantor hereby irrevocably, absolutely and
unconditionally guarantees to Lender the full, prompt and complete payment when
due of the Guaranteed Obligations.
(b) All sums payable to Lender under this Guaranty shall be
payable on demand and without reduction for any offset, claim, counterclaim or
defense.
(c) Guarantor hereby agrees to indemnify, defend and save
harmless Lender from and against any and all costs, losses, liabilities, claims,
causes of action, expenses and damages, including reasonable attorneys' fees and
disbursements, which Lender may suffer or which otherwise may arise by reason of
Borrower's failure to pay any of the Guaranteed Obligations when due,
irrespective of whether such costs, losses, liabilities, claims, causes of
action, expenses or damages are incurred by Lender prior or subsequent to (i)
Lender's declaring the Principal, interest and other sums evidenced or secured
by the Loan Documents to be due and payable, (ii) the commencement or completion
of a judicial or non-judicial foreclosure of the Mortgage or (iii) the
conveyance of all or any portion of the Property by deed-in-lieu of foreclosure.
(d) Guarantor agrees that no portion of any sums applied
(other than sums received from Guarantor in full or partial satisfaction of its
obligations hereunder), from time to time, in reduction of the Debt shall be
deemed to have been applied in reduction of the Guaranteed Obligations until
such time as the Debt has been paid in full, or Guarantor shall have made the
full payment required hereunder, it being the intention hereof that the
Guaranteed Obligations shall be the last portion of the Debt to be deemed
satisfied.
3. REPRESENTATIONS AND WARRANTIES. Guarantor hereby represents and
warrants to Lender as follows (which representations and warranties shall be
given as of the date hereof and shall survive the execution and delivery of this
Guaranty):
(a) ORGANIZATION, AUTHORITY AND EXECUTION. Guarantor is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Maryland, and has all necessary power and authority to own its
properties and to conduct its business as presently conducted or proposed to be
conducted and to enter into and perform this Guaranty and all other agreements
and instruments to be executed by it in connection herewith. This Guaranty has
been duly executed and delivered by Guarantor.
(b) ENFORCEABILITY. This Guaranty constitutes a legal, valid
and binding obligation of Guarantor, enforceable against Guarantor in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally.
(c) NO VIOLATION. The execution, delivery and performance by
Guarantor of its obligations under this Guaranty has been duly authorized by all
necessary action, and do not and will not violate any law, regulation, order,
writ, injunction or decree of any court or governmental body, agency or other
instrumentality applicable to Guarantor, or result in a breach of any of the
terms, conditions or provisions of, or constitute a default under, or result in
the creation or imposition of any mortgage, lien, charge or encumbrance of any
nature whatsoever upon any of the assets of Guarantor pursuant to the terms of
Guarantor's articles of organization, or any mortgage, indenture, agreement or
instrument to which Guarantor is a party or by which it or any of its properties
is bound. Guarantor is not in default under any other guaranty which it has
provided to Lender.
3
(d) NO LITIGATION. There are no actions, suits or
proceedings at law or at equity, pending or, to Guarantor's best knowledge,
threatened against or affecting Guarantor or which involve or might involve the
validity or enforceability of this Guaranty or which might materially adversely
affect the financial condition of Guarantor or the ability of Guarantor to
perform any of its obligations under this Guaranty. Guarantor is not in default
beyond any applicable grace or cure period with respect to any order, writ,
injunction, decree or demand of any Governmental Authority which might
materially adversely affect the financial condition of Guarantor or the ability
of Guarantor to perform any of its obligations under this Guaranty.
(e) CONSENTS. All consents, approvals, orders or
authorizations of, or registrations, declarations or filings with, all
Governmental Authorities (collectively, the "CONSENTS") that are required in
connection with the valid execution, delivery and performance by Guarantor of
this Guaranty have been obtained and Guarantor agrees that all Consents required
in connection with the carrying out or performance of any of Guarantor's
obligations under this Guaranty will be obtained when required.
(f) FINANCIAL STATEMENTS AND OTHER INFORMATION. All
financial statements of Guarantor heretofore delivered to Lender are true and
correct in all material respects and fairly present the financial condition of
Guarantor as of the respective dates thereof, and no materially adverse change
has occurred in the financial conditions reflected therein since the respective
dates thereof. None of the aforesaid financial statements or any certificate or
statement furnished to Lender by or on behalf of Guarantor in connection with
the transactions contemplated hereby, and none of the representations and
warranties in this Guaranty contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
contained therein or herein not misleading. Guarantor is not insolvent within
the meaning of the United States Bankruptcy Code or any other applicable law,
code or regulation and the execution, delivery and performance of this Guaranty
will not render Guarantor insolvent.
(g) CONSIDERATION. Guarantor is the owner, directly or
indirectly, of legal and beneficial equity interests in Borrower, and as such
will materially benefit from the making of the Loan.
4. FINANCIAL STATEMENTS. Guarantor shall deliver to Lender, (a)
within 120 days after the end of each fiscal year of Guarantor, a complete copy
of Guarantor's annual financial statements, (b) if requested by Lender, within
60 days after the end of each fiscal quarter of Guarantor, financial statements
(including a balance sheet as of the end of such fiscal quarter and a statement
of income and expense for such fiscal quarter) certified by Guarantor and in
form, content, level of detail and scope reasonably satisfactory to Lender, and
(c) 20 days after request by Lender, such other financial information with
respect to Guarantor as Lender may reasonably request.
5. UNCONDITIONAL CHARACTER OF OBLIGATIONS OF GUARANTOR.
(a) The obligations of Guarantor hereunder shall be
irrevocable, absolute and unconditional, irrespective of the validity,
regularity or enforceability, in whole or in part, of the other Loan Documents
or any provision thereof, or the absence of any action to
4
enforce the same, any waiver or consent with respect to any provision thereof,
the recovery of any judgment against Borrower, Guarantor or any other Person or
any action to enforce the same, any failure or delay in the enforcement of the
obligations of Borrower under the other Loan Documents or Guarantor under this
Guaranty, or any setoff, counterclaim, and irrespective of any other
circumstances which might otherwise limit recourse against Guarantor by Lender
or constitute a legal or equitable discharge or defense of a guarantor or
surety. Lender may enforce the obligations of Guarantor under this Guaranty by a
proceeding at law, in equity or otherwise, independent of any loan foreclosure
or similar proceeding or any deficiency action against Borrower or any other
Person at any time, either before or after an action against the Property or any
part thereof, Borrower or any other Person. THIS GUARANTY IS A GUARANTY OF
PAYMENT AND PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTION. Guarantor
waives diligence, notice of acceptance of this Guaranty, filing of claims with
any court, any proceeding to enforce any provision of any other Loan Document,
against Guarantor, Borrower or any other Person, any right to require a
proceeding first against Borrower or any other Person, or to exhaust any
security (including, without limitation, the Property) for the performance of
the Guaranteed Obligations or any other obligations of Borrower or any other
Person, or any protest, presentment, notice of default or other notice or demand
whatsoever (except to the extent expressly provided to the contrary in this
Guaranty).
(b) The obligations of Guarantor under this Guaranty, and
the rights of Lender to enforce the same by proceedings, whether by action at
law, suit in equity or otherwise, shall not be in any way affected by any of the
following:
(i) any insolvency, bankruptcy, liquidation,
reorganization, readjustment, composition, dissolution, receivership,
conservatorship, winding up or other similar proceeding involving or affecting
Borrower, the Property or any part thereof, Guarantor or any other Person;
(ii) any failure by Lender or any other Person,
whether or not without fault on its part, to perform or comply with any of the
terms of the Loan Agreement, or any other Loan Documents, or any document or
instrument relating thereto;
(iii) the sale, transfer or conveyance of the Property
or any interest therein to any Person, whether now or hereafter having or
acquiring an interest in the Property or any interest therein and whether or not
pursuant to any foreclosure, trustee sale or similar proceeding against Borrower
or the Property or any interest therein;
(iv) the conveyance to Lender, any Affiliate of
Lender or Lender's nominee of the Property or any interest therein by a
deed-in-lieu of foreclosure;
(v) the release of Borrower or any other Person from
the performance or observance of any of the agreements, covenants, terms or
conditions contained in any of the Loan Documents by operation of law or
otherwise; or
(vi) the release in whole or in part of any
collateral for any or all Guaranteed Obligations or for the Loan or any portion
thereof.
5
(c) Except as otherwise specifically provided in this
Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an
action brought by Lender to enforce this Guaranty based on claims of waiver,
release, surrender, alteration or compromise and all setoffs, reductions, or
impairments, whether arising hereunder or otherwise.
(d) Lender may deal with Borrower and Affiliates of Borrower
in the same manner and as freely as if this Guaranty did not exist and shall be
entitled, among other things, to grant Borrower or any other Person such
extension or extensions of time to perform any act or acts as may be deemed
advisable by Lender, at any time and from time to time, without terminating,
affecting or impairing the validity of this Guaranty or the obligations of
Guarantor hereunder.
(e) No compromise, alteration, amendment, modification,
extension, renewal, release or other change of, or waiver, consent, delay,
omission, failure to act or other action with respect to, any liability or
obligation under or with respect to, or of any of the terms, covenants or
conditions of, the Loan Documents shall in any way alter, impair or affect any
of the obligations of Guarantor hereunder, and Guarantor agrees that if any Loan
Document are modified with Lender's consent, the Guaranteed Obligations shall
automatically be deemed modified to include such modifications.
(f) Lender may proceed to protect and enforce any or all of
its rights under this Guaranty by suit in equity or action at law, whether for
the specific performance of any covenants or agreements contained in this
Guaranty or otherwise, or to take any action authorized or permitted under
applicable law, and shall be entitled to require and enforce the performance of
all acts and things required to be performed hereunder by Guarantor. Each and
every remedy of Lender shall, to the extent permitted by law, be cumulative and
shall be in addition to any other remedy given hereunder or now or hereafter
existing at law or in equity.
(g) No waiver shall be deemed to have been made by Lender of
any rights hereunder unless the same shall be in writing and signed by Lender,
and any such waiver shall be a waiver only with respect to the specific matter
involved and shall in no way impair the rights of Lender or the obligations of
Guarantor to Lender in any other respect or at any other time.
(h) At the option of Lender, Guarantor may be joined in any
action or proceeding commenced by Lender against Borrower in connection with or
based upon any other Loan Documents and recovery may be had against Guarantor in
such action or proceeding or in any independent action or proceeding against
Guarantor to the extent of Guarantor's liability hereunder, without any
requirement that Lender first assert, prosecute or exhaust any remedy or claim
against Borrower or any other Person, or any security for the obligations of
Borrower or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be
effective or shall be reinstated, as the case may be, if at any time any payment
is made by Borrower or Guarantor to Lender and such payment is rescinded or must
otherwise be returned by Lender (as determined by Lender in its sole and
absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization,
readjustment, composition, dissolution, receivership,
6
conservatorship, winding up or other similar proceeding involving or affecting
Borrower or Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become
obligated to pay any sums under this Guaranty or in connection with the
Guaranteed Obligations or in the event that for any reason whatsoever Borrower
or any subsequent owner of the Property or any part thereof is now, or shall
hereafter become, indebted to Guarantor, Guarantor agrees that (i) the amount of
such sums and of such indebtedness and all interest thereon shall at all times
be subordinate as to lien, the time of payment and in all other respects to all
sums, including principal and interest and other amounts, at any time owed to
Lender under the Loan Documents, and (ii) Guarantor shall not be entitled to
enforce or receive payment thereof until all principal, interest and other sums
due pursuant to the Loan Documents have been paid in full. Nothing herein
contained is intended or shall be construed to give Guarantor any right of
subrogation in or under the Loan Documents or any right to participate in any
way therein, or in the right, title or interest of Lender in or to any
collateral for the Loan, notwithstanding any payments made by Guarantor under
this Guaranty, until the actual and irrevocable receipt by Lender of payment in
full of all principal, interest and other sums due with respect to the Loan or
otherwise payable under the Loan Documents. If any amount shall be paid to
Guarantor on account of such subrogation rights at any time when any such sums
due and owing to Lender shall not have been fully paid, such amount shall be
paid by Guarantor to Lender for credit and application against such sums due and
owing to Lender.
(k) Guarantor's obligations hereunder shall survive a
foreclosure, deed-in-lieu of foreclosure or similar proceeding involving the
Property and the exercise by Lender of any of all of its remedies pursuant to
the Loan Documents.
6. COVENANTS.
(a) As used in this Section 6, the following terms shall
have the respective meanings set forth below:
(i) "GAAP" shall mean generally accepted accounting
principles, consistently applied.
(ii) "LIQUID ASSETS" shall mean assets in the form of
cash, cash equivalents, obligations of (or fully guaranteed as to principal and
interest by) the United States or any agency or instrumentality thereof
(provided the full faith and credit of the United States supports such
obligation or guarantee), certificates of deposit issued by a commercial bank
having net assets of not less than $500 million, securities listed and traded on
a recognized stock exchange or traded over the counter and listed in the
National Association of Securities Dealers Automatic Quotations, or liquid debt
instruments that have a readily ascertainable value and are regularly traded in
a recognized financial market.
(iii) "NET WORTH" shall mean, as of a given date, (x)
the total assets of Guarantor as of such date less (y) Guarantor's total
liabilities as of such date, determined in accordance with GAAP.
7
(b) Guarantor shall not, at any time while a default in the
payment of the Guaranteed Obligations has occurred and is continuing, either (i)
enter into or effectuate any transaction with any Affiliate which would reduce
the Net Worth of Guarantor, including the payment of any dividend or
distribution to a shareholder, or the redemption, retirement, purchase or other
acquisition for consideration of any stock in Guarantor or (ii) sell, pledge,
mortgage or otherwise transfer to any Person any of Guarantor's assets, or any
interest therein, except for fair value.
7. ENTIRE AGREEMENT/AMENDMENTS. This instrument represents the
entire agreement between the parties with respect to the subject matter hereof.
The terms of this Guaranty shall not be waived, altered, modified, amended,
supplemented or terminated in any manner whatsoever except by written instrument
signed by Lender and Guarantor.
8. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon
Guarantor, and Guarantor's estate, heirs, personal representatives, successors
and assigns, may not be assigned or delegated by Guarantor and shall inure to
the benefit of Lender and its successors and assigns.
9. APPLICABLE LAW AND CONSENT TO JURISDICTION. This Guaranty shall
be governed by, and construed in accordance with, the substantive laws of the
State of New York. Guarantor irrevocably (a) agrees that any suit, action or
other legal proceeding arising out of or relating to this Guaranty may be
brought in a court of record in the City and County of New York or in the Courts
of the United States of America located in the Southern District of New York,
(b) consents to the jurisdiction of each such court in any such suit, action or
proceeding and (c) waives any objection which it may have to the laying of venue
of any such suit, action or proceeding in any of such courts and any claim that
any such suit, action or proceeding has been brought in an inconvenient forum.
Guarantor irrevocably consents to the service of any and all process in any such
suit, action or proceeding by service of copies of such process to Guarantor at
its address provided in Section 14 hereof. Nothing in this Section 9, however,
shall affect the right of Lender to serve legal process in any other manner
permitted by law or affect the right of Lender to bring any suit, action or
proceeding against Guarantor or its property in the courts of any other
jurisdictions.
10. SECTION HEADINGS. The headings of the sections and paragraphs of
this Guaranty have been inserted for convenience of reference only and shall in
no way define, modify, limit or amplify any of the terms or provisions hereof.
11. SEVERABILITY. Any provision of this Guaranty which may be
determined by any competent authority to be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, Guarantor hereby
waives any provision of law which renders any provision hereof prohibited or
unenforceable in any respect.
8
12. WAIVER OF TRIAL BY JURY. GUARANTOR HEREBY WAIVES THE RIGHT OF
TRIAL BY JURY IN ANY LITIGATION, ACTION OR PROCEEDING ARISING HEREUNDER OR IN
CONNECTION THEREWITH.
13. OTHER GUARANTIES. The obligations of Guarantor hereunder are
separate and distinct from, and in addition to, the obligations of Guarantor now
or hereafter arising under any other Guaranties, pursuant to which Guarantor has
guaranteed payment and performance of certain other obligations of Borrower
described therein.
14. NOTICES. All notices, consents, approvals and requests required
or permitted hereunder (a "Notice") shall be given in writing and shall be
effective for all purposes if either hand delivered with receipt acknowledged,
or by a nationally recognized overnight delivery service (such as Federal
Express), or by certified or registered United States mail, return receipt
requested, postage prepaid, or by facsimile and confirmed by facsimile answer
back, in each case addressed as follows (or to such other address or Person as a
party shall designate from time to time by notice to the other party): If to
Lender: Greenwich Capital Financial Products, Inc., 000 Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention: Mortgage Loan Department, Telecopier
(000) 000-0000 and to Greenwich Capital Financial Products, Inc., 000 Xxxxxxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention: Legal Department, Telecopier
(000) 000-0000, with a copy to: Xxxx Xxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxxx Xxxxxxx, Esq., Telecopier: (000) 000-0000; if to
Guarantor: 00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, Attention:
Xxxxxx X. Xxxxxxx, III, Telecopier: (000) 000-0000. A notice shall be deemed to
have been given: in the case of hand delivery, at the time of delivery; in the
case of registered or certified mail, when delivered or the first attempted
delivery on a Business Day; or in the case of overnight delivery, upon the first
attempted delivery on a Business Day.
15. GUARANTOR'S RECEIPT OF LOAN DOCUMENTS. Guarantor by its
execution hereof acknowledges receipt of true copies of all of the Loan
Documents, the terms and conditions of which are hereby incorporated herein by
reference.
16. INTEREST; EXPENSES.
(a) If Guarantor fails to pay all or any sums due hereunder
upon demand by Lender, the amount of such sums payable by Guarantor to Lender
shall bear interest from the date of demand until paid at the Default Rate in
effect from time to time.
(b) Guarantor hereby agrees to pay all costs, charges and
expenses, including reasonable attorneys' fees and disbursements, that may be
incurred by Lender in enforcing the covenants, agreements, obligations and
liabilities of Guarantor under this Guaranty.
9
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date
first above written.
BEHRINGER HARVARD REIT I, INC., a
Maryland corporation
By:
_________________________________
Name: Xxxxxx X. Xxxxxxx, III
Title: Executive Vice President
