Exhibit 99.4
GUARANTY AGREEMENT
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(BEHRINGER HARVARD SHORT-TERM OPPORTUNITY FUND I LP)
WHEREAS, DALLAS CITY BANK ("Lender") has agreed to make a loan (the
"Loan") in the original principal amount of $2,000,000.00 to BHDGI, LTD., a
Texas limited partnership ("Borrower"); and
WHEREAS, Lender has conditioned its obligation to make the Loan in part
upon obtaining from BEHRINGER HARVARD SHORT-TERM OPPORTUNITY FUND I LP, a Texas
limited partnership ("Guarantor") this Guaranty Agreement ("Agreement");
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the undersigned, GUARANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY GUARANTEES TO LENDER THE PROMPT PAYMENT AND PERFORMANCE OF THE
GUARANTEED INDEBTEDNESS (hereinafter defined), this Agreement being upon the
following terms:
1. The term "Guaranteed Indebtedness", as used herein means THE
OBLIGATIONS, INDEBTEDNESS AND LIABILITIES OF BORROWER UNDER THAT CERTAIN
PROMISSORY NOTE DATED OF EVEN DATE HEREWITH IN THE PRINCIPAL AMOUNT OF
$2,000,000.00, SIGNED BY BORROWER AND PAYABLE TO THE ORDER OF LENDER and all
interest accruing thereon and all attorney's fees and other expenses incurred in
the enforcement or collection thereof and any renewal, modification, extension
or increase thereof.
2. This instrument shall be an absolute, continuing, irrevocable
and unconditional guaranty of payment and performance and not a guaranty of
collection, and Guarantor shall remain liable on the obligations hereunder until
the payment and performance in full of the Guaranteed Indebtedness.
3. If Guarantor becomes liable for any indebtedness owing by
Borrower to Lender by endorsement or otherwise, other than under this Agreement,
such liability shall not be in any manner impaired or affected hereby, and the
rights of Lender hereunder shall be cumulative of any and all other rights that
Lender may ever have against Guarantor. The exercise by Lender of any right or
remedy hereunder or under any other instrument, or at law or in equity, shall
not preclude the concurrent or subsequent exercise of any other right or remedy.
4. In the event of default by Borrower in payment or performance of
the Guaranteed Indebtedness, or any part thereof, when such Guaranteed
Indebtedness becomes due, whether by its terms, by acceleration, or otherwise,
Guarantor shall promptly pay the amount due thereon to Lender without notice or
demand in lawful money of the United States and it shall not be necessary for
Lender, in order to enforce such payment by Guarantor, first to institute suit
or exhaust its remedies against Borrower or others liable on such Guaranteed
Indebtedness, or to enforce any rights against any collateral which shall ever
have been given to secure such Guaranteed Indebtedness.
5. Guarantor hereby agrees that his obligations under this
Agreement shall not be released, diminished, impaired, reduced or affected by
the occurrence of any reason or event, including, without limitation, one or
more of the following events, whether or not with notice to or the consent of
Guarantor:
a. The taking or accepting of collateral as security for
any or all of the Guaranteed Indebtedness or the release, surrender,
exchange or subordination of any collateral now or hereafter securing
any or all of the Guaranteed Indebtedness;
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b. Any release of liability of the Borrower, or the release
of any other person obligated to pay the Guaranteed Indebtedness from
liability for any or all of the Guaranteed Indebtedness;
c. Any disability of Borrower or Guarantor, or the
dissolution, insolvency or bankruptcy of Borrower or any party at any
time liable for the payment of any or all of the Guaranteed
Indebtedness;
d. Any renewal, extension, modification, waiver, amendment
or rearrangement of any or all of the Guaranteed Indebtedness or any
instrument, document or agreement evidencing, securing or otherwise
relating to any or all of the Guaranteed Indebtedness;
e. Any adjustment, indulgence, forbearance, waiver or
compromise that may be granted or given by Lender to Borrower or any
other party ever liable for any or all of the Guaranteed Indebtedness;
f. Any neglect, delay, omission, failure or refusal of
Lender to take or prosecute any action for the collection of any of the
Guaranteed Indebtedness or to foreclose or take or prosecute any action
in connection with any instrument, document or agreement evidencing,
securing or otherwise relating to any or all of the Guaranteed
Indebtedness;
g. The unenforceability or invalidity of any or all of the
Guaranteed Indebtedness or any other instrument, document or agreement
evidencing, securing or otherwise relating to any or all of the
Guaranteed Indebtedness;
h. Any payment by Borrower or any party at any time liable
for the payment of any or all of the Guaranteed Indebtedness to Lender
is held to constitute a preference under the bankruptcy laws or if for
any other reason Lender is required to refund such payment or pay the
amount thereof to someone else;
i. The settlement or compromise of any of the Guaranteed
Indebtedness;
j. The failure of Lender to perfect or continue any
security interest or lien securing any or all of the Guaranteed
Indebtedness;
k. The failure of Lender to preserve, protect, maintain or
insure any collateral securing any or all of the Guaranteed
Indebtedness;
l. The failure of Lender to sell any collateral securing
any or all of the Guaranteed Indebtedness in a commercially reasonable
manner or as otherwise required by law; or
m. Any other circumstance which might otherwise constitute
a defense available to, or discharge of, Borrower or Guarantor.
6. Guarantor represents and warrants to Lender as follows:
a. Guarantor has the power and authority to execute,
deliver and perform his obligations under this Agreement and this
Agreement constitutes the legal, valid and binding obligation of
Guarantor, enforceable against Guarantor in accordance with its terms,
except as
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limited by bankruptcy, insolvency or other laws of general application
relating to the enforcement of creditor's rights.
b. The execution, delivery and performance by Guarantor of
this Agreement does not and will not violate any law or any order of any
court, governmental authority or arbitrator and does not and will not
conflict with, result in a breach of or constitute a default under, or
result in the imposition of any lien upon any assets of Guarantor
pursuant to the provisions of any indenture, mortgage, deed of trust,
security agreement, franchise, permit, license or other instrument or
agreement to which Guarantor or his property is bound.
c. No authorization, approval or consent of, and no filing
or registration with, any court, governmental authority or third party
is necessary for the execution, delivery or performance by Guarantor of
this Agreement or the validity or enforceability thereof.
d. The value of the consideration received and to be
received by Guarantor as a result of executing and delivering this
Agreement is reasonably worth at least as much as the liability and
obligation of Guarantor hereunder, and such liability and obligation has
benefited or may reasonably be expected to benefit Guarantor directly or
indirectly.
7. Guarantor covenants and agrees that, as long as the Guaranteed
Indebtedness or any part thereof is outstanding:
a. Guarantor shall furnish to Lender the financial
statements of Guarantor as required by the Loan Agreement executed by
Borrower, Guarantor and Lender in connection with the Loan.
b. Guarantor will furnish promptly to Lender written notice
of the occurrence of any default of which Guarantor has actual knowledge
under this Agreement or under the Guaranteed Indebtedness.
c. Guarantor will furnish promptly to Lender such
additional information concerning Guarantor as Lender may reasonably
request.
d. Guarantor will obtain at any time and from time to time,
if applicable, all authorizations, licenses, consents or approvals as
shall now or hereafter be necessary or desirable under all applicable
laws or regulations or otherwise in connection with the execution,
delivery and performance of this Agreement and will promptly furnish
copies thereof to Lender.
8. Lender shall have the right to set off and apply against this
Agreement or the Guaranteed Indebtedness or both, without notice to Guarantor,
any and all deposits (general or special, time or demand, provisional or final)
or other sums at any time credited by or owing from Lender to Guarantor, whether
or not the Guaranteed Indebtedness is then due and irrespective of whether or
not Lender shall have made any demand under this Agreement. As security for this
Agreement and the Guaranteed Indebtedness, Guarantor hereby grants Lender a
security interest in all money, instruments and other property of Guarantor now
or hereafter held by Lender, including, without limitation, property held in
safekeeping. In addition to Lender's right of setoff and as further security for
this Agreement and the Guaranteed Indebtedness, Guarantor hereby grants Lender a
security interest in all deposits (general or special, time or demand,
provisional or final) and all other accounts of Guarantor now or hereafter on
deposit with or held by Lender and all other sums at any time credited by or
owing from Lender to Guarantor. The rights and remedies of Lender hereunder are
in addition to other rights and remedies (including, without limitation, other
rights of setoff) which Lender may have.
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9. In the event any property securing the Guaranteed Indebtedness
is foreclosed upon in any manner, and a deficiency is created as a result of the
purchase price at such foreclosure sale, Guarantor does hereby irrevocably waive
all rights to claim any offset against the deficiency as provided in Section
51.003, 51.004 and 51.005 of the Texas Property Code, as amended.
10. All present and future indebtedness of Borrower to Guarantor is
hereby subordinated to the Guaranteed Indebtedness and is hereby assigned to
Lender as security for the Guaranteed Indebtedness. If any sums shall be paid to
Guarantor on account of such indebtedness, such sums shall be held in trust by
Guarantor for the benefit of Lender and shall forthwith be paid to Lender
without affecting the liability of Guarantor under this Agreement. Upon the
request of Lender, Guarantor shall execute, deliver and endorse to Lender such
documents and instruments as Lender deems necessary or appropriate to perfect,
preserve and enforce its rights hereunder.
11. The guaranty of Guarantor hereunder and those of any other
guarantor or guarantors who may have guaranteed or who may hereafter guarantee
any indebtedness of Borrower are and will be joint and several, and Lender may
release any one or more of the guarantors at any time or settle with any one or
more at any time without affecting the continuing liability of the remaining
guarantors. Guarantor acknowledges that this Agreement is in effect and binding
on Guarantor without regard to whether it is signed by any other person or
persons and agree that as to Guarantor it shall continue in full force and
effect notwithstanding the death or release by agreement or by operation of law
of or the extension of time to, any other guarantors.
12. No amendment or waiver of any provision of this Agreement nor
consent to any departure by the Guarantor therefrom shall in any event be
effective unless the same shall be in writing and signed by Lender. No failure
on the part of Lender to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.
13. This Agreement is for the benefit of Lender and its successors
and assigns, and in the event of an assignment of the Guaranteed Indebtedness,
or any part thereof, the rights and benefits hereunder, to the extent applicable
to the indebtedness so assigned, may be transferred with such indebtedness. This
Agreement is binding not only on Guarantor but on Guarantor's heirs and personal
representatives.
14. Guarantor recognizes that Lender is relying upon this Agreement
and the undertakings of Guarantor hereunder in making the Loan to Borrower and
further recognize that the execution and delivery of this Agreement is a
material inducement to Lender in entering into this Agreement. Guarantor has
unconditionally delivered this Agreement to Lender and the failure to sign any
other guaranty by any other person shall not discharge the liability of
Guarantor hereunder.
15. This Agreement is executed and delivered as an incident to a
lending transaction negotiated, consummated and performable in DALLAS, DALLAS
COUNTY, TEXAS, and shall be governed by and construed in accordance with the
laws of the State of Texas.
16. Guarantor shall pay on demand all reasonable attorney's fees and
all other costs and expenses incurred by Lender in connection with the
preparation, administration, enforcement or collection of this Agreement.
17. Guarantor hereby waives promptness, diligence, demand of
payment, notice of acceptance of this Agreement, notice of intent to demand,
notice of intent to accelerate, notice of acceleration, presentment,
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notice of protest, notice of dishonor, notice of the incurring by Borrower of
additional indebtedness, and all other notices and demands with respect to the
Guaranteed Indebtedness and this Agreement.
18. This Agreement is intended by Guarantor as a final and complete
expression of the terms of the Agreement, no course of dealings between
Guarantor and Lender, no uses of trade and no parole or extrinsic evidence of
any nature shall be used to supplement or modify any term hereof. No condition
to the full effectiveness of this Agreement exists.
19. Notwithstanding anything contained herein to the contrary, the
obligations and liabilities of Guarantor hereunder shall be enforceable only
against Guarantor. No officer, director, shareholder, or partner of Guarantor
shall be held to any personal liability for the payment of the Guaranteed
Indebtedness, unless such person or entity has misrepresented to Lender his or
its authority to legally bind Guarantor to its obligations hereunder.
Executed as of September 29, 2005.
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:_________________________________
Xxxxxx Xxxxxx, President
THE STATE OF TEXAS ss.
ss.
COUNTY OF __________ ss.
Before me ________________________ (Notary printed name) on this day
personally appeared Xxxxxx Xxxxxx, President of Harvard Property Trust, LLC, a
Delaware limited liability company, the General Partner of Behringer Harvard
Advisors II LP, a Texas limited partnership, the General Partner of Behringer
Harvard Short-Term Opportunity Fund I LP, a Texas limited partnership, known to
me or proved to me to be the person whose name is subscribed to the foregoing
instrument and acknowledged to me that he executed the same for the purposes and
consideration therein expressed and in the capacity stated.
Given under my hand and seal of office this ______ day of ____________,
2005.
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Notary Public, State of Texas
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