Exhibit 99.4
GUARANTY
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by BEHRINGER HARVARD SHORT-TERM OPPORTUNITY FUND I
LP, a Texas limited partnership ("Guarantor"), and for the purpose of inducing
AMERICAN NATIONAL BANK OF TEXAS or its successors or assigns ("Holder") to make
a loan (the "Loan Transaction"), to BEHRINGER HARVARD MOCKINGBIRD COMMONS LP, a
Texas limited partnership ("Borrower"), and recognizing that Guarantor has
benefited or shall benefit, directly or indirectly, from the Loan Transaction,
that the Loan Transaction is in the best interests of Guarantor, and that but
for this Guaranty (herein so called) the Loan Transaction could not be
consummated, Guarantor hereby absolutely and unconditionally guarantees to
Holder the prompt payment when due of the following (collectively, the
"Guaranteed Indebtedness"): (a) the Indebtedness and Obligations (as such terms
are defined in that certain Deed of Trust, Assignment of Leases and Rents,
Security Agreement and Fixture Filing (the "Deed of Trust") of even date
herewith, executed by Xxxxxxxx) including, without limitation, the indebtedness,
obligations and liabilities evidenced by or arising under that certain
Promissory Note (as such has been or may hereafter be amended, supplemented,
modified, renewed, extended and/or restated from time to time, herein called the
"Note"), of even date herewith, executed by Xxxxxxxx, payable to the order of
Holder, in the stated principal amount of Thirty-Six Million Two Hundred
Eighteen Thousand and No/100 Dollars ($36,218,000.00) (the "Loan"); and (b) any
and all renewals or extensions of all or any part of the indebtedness,
obligations, and liabilities described or referred to in Subsection (a)
preceding, together with all costs, expenses, and attorneys' fees incurred in
the enforcement or collection thereof.
1. BORROWER. As used throughout this Guaranty, the term "Borrower"
shall include, without limitation, Borrower, Borrower as a debtor-in-possession,
and any receiver, trustee, liquidator, conservator, custodian, or similar party
hereafter appointed for Borrower or all or substantially all of its assets
pursuant to any liquidation, conservatorship, bankruptcy, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor
relief law from time to time in effect affecting the rights of creditors
generally (collectively, "Debtor Relief Laws").
2. PRIMARY LIABILITY. Guarantor shall be liable as a primary
obligor for the payment and performance of the Guaranteed Indebtedness. This
Guaranty shall be an absolute and continuing guaranty, and the circumstance that
at any time or from time to time the Guaranteed Indebtedness may be paid in full
shall not affect the obligation of Guarantor with respect to the Guaranteed
Indebtedness of Borrower to Holder thereafter incurred.
3. PAYMENT. In the event of default by Borrower in payment of the
Guaranteed Indebtedness, or any part thereof, when such indebtedness becomes
due, either by its terms or as the result of the exercise of any power to
accelerate, Guarantor shall, on demand and without further notice of dishonor,
without any notice having been given to Guarantor previous to such demand of the
acceptance by Holder of this Guaranty, and without any notice having been given
to Guarantor previous to such demand of the creating or incurring of the
Guaranteed Indebtedness, pay the amount due thereon to Holder. All amounts
becoming payable by Guarantor to Holder under this Guaranty shall be payable at
Holder's address set forth in Paragraph 10 hereof. The payment by Guarantor of
any amount pursuant to this Guaranty shall not in anywise entitle Guarantor to
any right, title or
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interest (whether by way of subrogation or otherwise) in any of the Guaranteed
Indebtedness or any proceeds thereof; Guarantor hereby waiving any and all of
such rights, including, without limitation, any rights of subrogation.
4. WAIVER OF NOTICE. Guarantor specifically waives any notice of
acceptance of this Guaranty by Holder and of the creation, advancement,
existence, extension, renewal, modification, consolidation, or rearrangement
from time to time of the Guaranteed Indebtedness, or increase from time to time
in the principal amount thereof, or increase or reduction from time to time of
the rate of interest thereon, or any indulgence from time to time with respect
to the Guaranteed Indebtedness, or any part thereof. Guarantor additionally
waives grace, demand, protest, presentment and notice of demand, protest,
presentment and dishonor with respect to the Guaranteed Indebtedness, notice of
intent to accelerate, notice of acceleration and notice of disposition of
collateral and waives notice of the amount of the Guaranteed Indebtedness
outstanding at any time, and agrees that the maturity of the Guaranteed
Indebtedness, or any part thereof, may be accelerated, extended, modified,
amended or renewed from time to time, or any other indulgence may be granted
with respect thereto by Xxxxxx without notice to or further consent by
Guarantor, at any time or times.
5. RIGHTS OF HOLDER.
a. Guarantor agrees that no release of Borrower, any
co-guarantor, or of any other person primarily or secondarily liable on
the Guaranteed Indebtedness, or any part thereof shall in any manner
impair, diminish or affect the liability of Guarantor or the rights of
Holder hereunder.
b. Guarantor specifically agrees that it shall not be
necessary or required, and that Guarantor shall not be entitled to
require, that Holder file suit or proceed to obtain or assert a claim
for personal judgment against Borrower for the Guaranteed Indebtedness,
or make any effort at collection of the Guaranteed Indebtedness from
Borrower, or foreclose against or seek to realize upon any security or
collateral now or hereafter existing for the Guaranteed Indebtedness, or
file suit or proceed to obtain or assert a claim for personal judgment
against any other party (whether maker, guarantor, endorser or surety)
liable for the Guaranteed Indebtedness, or make any effort at collection
of the Guaranteed Indebtedness from any such other party, or exercise or
assert any other right or remedy to which Holder is or may be entitled
in connection with the Guaranteed Indebtedness or any security or
collateral or other guaranty therefor, or assert or file any claim
against the assets or estate of Borrower or any other guarantor or other
person liable for the Guaranteed Indebtedness, or any part thereof,
before or as a condition of enforcing the liability of Guarantor under
this Guaranty or requiring payment of the Guaranteed Indebtedness by
Guarantor hereunder, or at any time thereafter.
c. If any or all of the Guaranteed Indebtedness are now or
hereafter secured in whole or in part, Guarantor agrees that Holder may,
from time to time, at its discretion, and with or without valuable
consideration, allow substitution, withdrawal, release, surrender,
exchange, subordination, deterioration, waste, loss or other impairment
of all or any part of such security or collateral, without notice to or
consent by Guarantor, and without in anywise impairing, diminishing or
releasing the liability of Guarantor hereunder.
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d. No delay or omission or lack of diligence or care in
exercising any right or power with respect to the Guaranteed
Indebtedness or any security or collateral therefor (including without
limitation the failure of Holder to perfect a security interest therein)
or guaranty thereof or under this Guaranty shall in any manner impair,
diminish or affect the liability of Guarantor or the rights of Holder
hereunder. Guarantor expressly waives any right to the benefit of or to
require or control application of any security or collateral or the
proceeds of any security or collateral now existing or hereafter
obtained by Holder as security for the Guaranteed Indebtedness, or any
part thereof. Holder agrees that any monies or payments at any time
received by Holder under this Guaranty shall be applied as follows:
first, to the payment of all costs, attorneys' fees and expenses
incurred or expended by Xxxxxx in collecting any of the Guaranteed
Indebtedness; second, to that portion of the Guaranteed Indebtedness
constituting interest and; third, to that portion of the Guaranteed
Indebtedness constituting principal on the Note.
e. Guarantor's liability hereunder shall in no manner be
affected, reduced, impaired or released by reason of any renewal,
extension, modification, consolidation, or rearrangement of or any other
indulgence, forbearance or compromise with respect to the Guaranteed
Indebtedness, or any part thereof; or increase in the principal amount
thereof; or increase or reduction of the rate of interest thereon.
f. Guarantor absolutely and unconditionally covenants and
agrees that if all or any part of the Guaranteed Indebtedness (or any
instrument or agreement made or executed in connection therewith) is for
any reason found to be invalid, illegal, unenforceable, uncollectible or
legally impossible, for any reason whatsoever (including, without
limiting the generality of the foregoing, upon the grounds that the
payment and/or performance of the Guaranteed Indebtedness is ultra xxxxx
or otherwise without authority, may violate applicable usury laws, is
subject to valid defenses, claims or offsets of Borrower, or any
instrument evidencing any of the Guaranteed Indebtedness is forged or
otherwise irregular); then in any such case Guarantor shall pay and
perform the Guaranteed Indebtedness as herein provided and that no such
occurrence shall in any way diminish or otherwise affect Guarantor's
obligations hereunder.
g. Xxxxxxxxx agrees, to the full extent it may legally do
so, that suit may be brought against Guarantor with or without making
Borrower a party to such suit (as Holder may elect).
6. CHANGE IN COMPOSITION. Should the status, composition, structure
or name of Borrower change, this Guaranty shall continue and also cover the
indebtedness and Guaranteed Indebtedness of Borrower under the new status,
composition, structure or name according to the terms hereof.
7. LIABILITY IN THE EVENT OF PREFERENCE. In the event any payment
of Borrower to Holder is held to constitute a preference under any Debtor Relief
Laws, such payment by Borrower to Holder shall not constitute a release of
Guarantor from any liability hereunder, but Guarantor
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agrees to pay such amount to Holder upon demand and this Guaranty shall continue
to be effective or shall be reinstated, as the case may be, to the extent of any
such payment or payments.
8. BANKRUPTCY. Should Guarantor become insolvent, or fail to pay
Guarantor's debts generally as they become due, or voluntarily seek, consent to,
or acquiesce in the benefit or benefits of any Debtor Relief Law, or become a
party to (or be made the subject of) any proceeding provided for by any Debtor
Relief Law, other than as a creditor or claimant, that could suspend or
otherwise adversely affect the rights of Holder granted hereunder, then, in any
such event, the Guaranteed Indebtedness shall be, as between such Guarantor and
Holder, a fully matured, due, and payable obligation of Guarantor to Holder
(without regard to whether Borrower is then in default under the Note or whether
the Guaranteed Indebtedness, or any part thereof, is then due and owing by
Borrower to Holder), payable in full by Guarantor to Holder upon demand, which,
for purposes of Section 502(c) of the Bankruptcy Code of the United States, as
amended, shall be the estimated amount owing in respect of the contingent claim
created hereunder.
9. ACTIONS AGAINST GUARANTORS. The Guarantor agrees that Holder, in
its discretion, may (i) bring suit against the Guarantor and any other guarantor
of the Guaranteed Indebtedness or against any one or more of them, (ii) compound
or settle with any one or more of the guarantors of the Guaranteed Indebtedness
for such consideration as the Holder may deem proper, (iii) release one or more
of the guarantors of all or any part of the Guaranteed Indebtedness from
liability thereunder, and (iv) otherwise deal with the Guarantor and any other
guarantors of the Guaranteed Indebtedness, or any one or more of them, in any
manner whatsoever; and that no such action shall impair the rights of the Holder
to collect the Guaranteed Indebtedness from the Guarantor. Nothing contained in
this paragraph shall in any way affect or impair the rights or obligations of
the Guarantor with respect to any other guarantor of all or any part of the
Guaranteed Indebtedness.
10. NOTICES. Any notice required or permitted to be given under this
Guaranty shall be in writing and shall be mailed by certified mail, postage
prepaid, return receipt requested, or sent by overnight air courier service, or
personally delivered to a representative of the receiving party, or sent by
telecopy (provided an identical notice is also sent simultaneously by mail,
overnight courier, or personal delivery as otherwise provided in this Paragraph
10). All such communications shall be mailed, sent or delivered, addressed to
the party for whom it is intended at its address set forth below.
If to Guarantor: Behringer Harvard Short-Term Opportunity Fund I LP
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Chief Legal Officer
-------------------
Facsimile No.: (000) 000-0000
--------------
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with a copy to: Xxxxxx & Xxxxxxx, L.L.P.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile No.: 214.373-8768
If to Holder: American National Bank of Texas
0000 Xxxx Xxxxx Xxxxxxx, Xxxxx X
Xxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxxx
Facsimile No.: 214.863.6410
with a copy to: Cherry, Xxxxxxxx & Xxxxxx, LLP
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxx, Esq.
Facsimile No.: 214/265-7008
Any communication so addressed and mailed shall be deemed to be given on the
earliest of (1) when actually delivered, (2) on the first (1st) Business Day (as
defined in the Note) after deposit with an overnight air courier service, or (3)
on the third (3rd) Business Day after deposit in the United States mail, postage
prepaid, in each case to the address of the intended addressee, and any
communication so delivered in person shall be deemed to be given when receipted
for by, or actually received by Holder or Guarantor, as the case may be, or (4)
if given by telecopy, when transmitted to the party's telecopy number specified
above and confirmation of complete receipt is received by the transmitting party
during normal business hours or on the next Business Day if not confirmed during
normal business hours, and an identical notice is also sent simultaneously by
mail, overnight courier, or personal delivery as otherwise provided in this
Paragraph 10. Either party may designate a change of address by written notice
to the other by giving at least ten (10) days prior written notice of such
change of address.
11. RIGHTS OF HOLDER CUMULATIVE. The rights of Holder hereunder are
cumulative and shall not be exhausted by its exercise of any of its rights
hereunder, under any prior guaranty or otherwise against Guarantor or by any
number of successive actions until and unless all indebtedness constituting the
Guaranteed Indebtedness has been paid.
12. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA.
13. ENTIRE AGREEMENT. Guarantor acknowledges and agrees that this
Guaranty accurately represents and contains the entire agreement between
Guarantor and Holder with respect to the subject matter hereof, that Guarantor
is not relying in the execution of this Guaranty, on any representations
(whether written or oral) made by or on behalf of Holder except as expressly set
forth in this Guaranty, and that any and all prior statements and/or
representations made by or on behalf of Holder to Guarantor (whether written or
oral) in connection with the subject matter hereof are
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merged herein. This Guaranty shall not be waived, altered, modified or amended
as to any of its terms or provisions except in writing duly signed by Xxxxxx and
Guarantor.
14. ASSIGNMENT. This Guaranty is intended for and shall inure to the
benefit of Holder and each and every other person who shall from time to time be
or become the owner or holder of any of the Guaranteed Indebtedness, and each
and every reference herein to "Holder" shall also include and refer to each and
every successor or assignee of Holder at any time holding or owning any part of
or interest in any part of the Guaranteed Indebtedness. This Guaranty shall be
transferable by Xxxxxx, it being understood and stipulated that upon the
assignment or transfer by Xxxxxx of any of the Guaranteed Indebtedness (or any
part thereof or interest therein thus transferred or assigned by Xxxxxx), such
transferee shall also, unless provided otherwise by Holder in its assignment,
have and may exercise all the rights granted to Holder under this Guaranty to
the extent of the part of or interest in the Guaranteed Indebtedness thus
assigned or transferred to said person. Guarantor expressly waives notice of
transfer or assignment of the Guaranteed Indebtedness, or any part thereof, or
of the rights of Holder hereunder.
15. SEVERABILITY. A determination that any provision of this
Guaranty is unenforceable or invalid shall not affect the enforceability or
validity of any other provision.
16. MULTIPLE COUNTERPARTS. This Guaranty has been executed in a
number of identical counterparts, each of which shall be deemed an original for
all purposes and all of which constitute, collectively, one Guaranty, but in
making proof of this Guaranty, it shall not be necessary to produce or account
for more than one counterpart.
17. WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
GUARANTOR AND HOLDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE
RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS GUARANTY, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTION OF EITHER PARTY OR
ANY EXERCISE BY ANY PARTY OF THEIR RESPECTIVE RIGHTS HEREUNDER OR IN ANY WAY
RELATING TO THE LOAN TRANSACTION (INCLUDING ANY ACTION TO RESCIND OR CANCEL THIS
GUARANTY, AND ANY CLAIM OR DEFENSE ASSERTING THAT THIS GUARANTY WAS FRAUDULENTLY
INDUCED OR IS OTHERWISE VOID OR VOIDABLE). THIS WAIVER IS A MATERIAL INDUCEMENT
FOR HOLDER TO ENTER INTO THE LOAN TRANSACTION.
18. WAIVER OF ENFORCEMENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
GUARANTOR WAIVES ALL RIGHTS, REMEDIES, CLAIMS AND DEFENSES BASED UPON OR RELATED
TO SECTIONS 51.003, 51.004 AND 51.005 OF THE TEXAS PROPERTY CODE, TO THE EXTENT
THE SAME PERTAINS OR MAY PERTAIN TO ANY ENFORCEMENT OF THIS GUARANTY.
19. FINANCIAL STATEMENTS AND TAX RETURNS. Guarantor hereby
acknowledges and agrees that to the extent that any of the following are not
readily available to the public either through a filing with and disclosure to
or in the Securities Exchange Commission, other
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governmental agency or other public publication (whether written or in
electronic format) to provide (a) Financial Statements (as defined in the Loan
Agreement) to Holder as soon as available, but in no event later than twenty
(20) days after the end of each calendar year during the period of time that the
Loan is outstanding, together with any other financial information relating to
such Guarantor that is reasonably requested by Xxxxxx, and (b) a copy of such
Guarantor's annual tax return for the preceding calendar year, as soon as
available, but in no event later than October 15 of each calendar year.
20. EXCULPATED PARTIES. Notwithstanding anything to the contrary
contained in this Guaranty, any obligation or liability of Guarantor hereunder
shall be enforceable only against, and payable only out of, the property of
Guarantor, and in no event shall any officer, director, shareholder, partner,
beneficiary, agent, advisor or employee of Guarantor be held to any personal
liability whatsoever or be liable for any of the obligations of Guarantor, nor
shall the property of any such persons be subject to the payment of any such
obligations. Without limiting the generality of the preceding sentence, no
general partner in Guarantor shall have any liability for the obligations of
Guarantor under this Guaranty.
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EXECUTED effective as of the 30th day of September, 2005.
GUARANTOR:
BEHRINGER HARVARD SHORT-TERM OPPORTUNITY
FUND I LP
By: Behringer Harvard Advisors II LP
Its General Partner
By: Harvard Property Trust, LLC
Its General Partner
By:______________________________
Name: Xxxxxx X. Xxxxxxx, III
Title: Executive Vice President
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