Exhibit 99.4
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT ("GUARANTY") is made as of the _____ day of
April, 2005, by Guarantor (as hereinafter defined) for the benefit of Lender (as
hereinafter defined).
1. DEFINITIONS. As used in this Guaranty, the following terms shall
have the meanings indicated below:
(a) The term "LENDER" shall mean THE FROST NATIONAL BANK, a national
banking association, whose address for notice purposes is the following:
X.X. Xxx 0000, Xxx Xxxxxxx, Xxxxx 00000
Attn: XXXX XXXX
(b) The term "BORROWER" (whether one or more) shall mean the
following:
BEHRINGER HARVARD NORTHWEST HIGHWAY LP, a Texas limited partnership
(c) The term "GUARANTOR" shall mean BEHRINGER HARVARD SHORT-TERM
OPPORTUNITY FUND I LP, a Texas limited partnership, whose address for notice
purposes is the following:
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx 00000
(d) The term "GUARANTEED INDEBTEDNESS" shall mean (i) all
indebtedness, obligations and liabilities of Borrower to Lender of any kind or
character, now existing or hereafter arising, all principal indebtedness owing
by Borrower to Lender now existing or hereafter arising under or evidenced by
that one certain Promissory Note dated April ____, 2005, in the original
principal amount of $4,550,000.00, executed by Borrower and payable to the order
of Lender, (ii) all accrued but unpaid interest on any of the indebtedness
described in (i) above, (iii) all obligations of Borrower to Lender under any
documents evidencing, securing, governing and/or pertaining to all or any part
of the indebtedness described in (i) and (ii) above (collectively, the "LOAN
DOCUMENTS"), (iv) all costs and expenses incurred by Lender in connection with
the collection and administration of all or any part of the indebtedness and
obligations described in (i), (ii) and (iii) above or the protection or
preservation of, or realization upon, the collateral securing all or any part of
such indebtedness and obligations, including without limitation all reasonable
attorneys' fees, and (v) all renewals, extensions, modifications and
rearrangements of the indebtedness and obligations described in (i), (ii), (iii)
and (iv) above.
2. OBLIGATIONS. As an inducement to Lender to extend or continue to
extend credit and other financial accommodations to Borrower, Guarantor, for
value received, does hereby unconditionally and absolutely guarantee the prompt
and full payment and performance of the Guaranteed Indebtedness when due or
declared to be due and at all times thereafter.
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Exhibit 99.4
3. CHARACTER OF OBLIGATIONS.
(a) This is an absolute, continuing and unconditional guaranty of
payment and not of collection and if at any time or from time to time there is
no outstanding Guaranteed Indebtedness, the obligations of Guarantor with
respect to any and all Guaranteed Indebtedness incurred thereafter shall not be
affected. This Guaranty and the Guarantor's obligations hereunder are
irrevocable and, in the event of Guarantor's death, shall be binding upon
Guarantor's estate. All of the Guaranteed Indebtedness shall be conclusively
presumed to have been made or acquired in acceptance hereof. Guarantor shall be
liable, jointly and severally, with Borrower and any other guarantor of all or
any part of the Guaranteed Indebtedness.
(b) Lender may, at its sole discretion and without impairing its
rights hereunder, (i) apply any payments on the Guaranteed Indebtedness that
Lender receives from Borrower or any other source other than Guarantor to that
portion of the Guaranteed Indebtedness, if any, not guaranteed hereunder, and
(ii) apply any proceeds it receives as a result of the foreclosure or other
realization on any collateral for the Guaranteed Indebtedness to that portion,
if any, of the Guaranteed Indebtedness not guaranteed hereunder or to any other
indebtedness secured by such collateral.
(c) Guarantor agrees that its obligations hereunder shall not be
released, diminished, impaired, reduced or affected by the existence of any
other guaranty or the payment by any other guarantor of all or any part of the
Guaranteed Indebtedness and, in the event PARAGRAPH 2 above partially limits
Guarantor's obligations under this Guaranty, Guarantor's obligations hereunder
shall continue until Lender has received payment in full of the Guaranteed
Indebtedness; provided, however, that Lender shall apply all sums received from
any other guarantor(s) to the Guaranteed Indebtedness and other costs, expenses
and obligations of the other guarantor(s) in accordance with the agreement(s)
between Lender and such other guarantor(s).
(d) Guarantor's obligations hereunder shall not be released,
diminished, impaired, reduced or affected by, nor shall any provision contained
herein be deemed to be a limitation upon, the amount of credit which Lender may
extend to Borrower, the number of transactions between Lender and Borrower,
payments by Borrower to Lender or Lender's allocation of payments by Borrower.
(e) Without further authorization from or notice to Guarantor,
Lender may compromise, accelerate, or otherwise alter the time or manner for the
payment of the Guaranteed Indebtedness, increase or reduce the rate of interest
thereon, or release or add any one or more guarantors or endorsers, or allow
substitution of or withdrawal of collateral or other security and release
collateral and other security or subordinate the same.
4. REPRESENTATIONS AND WARRANTIES. Guarantor hereby represents and
warrants the following to Lender:
(a) This Guaranty may reasonably be expected to benefit, directly or
indirectly, Guarantor, and (i) if Guarantor is a corporation, the Board of
Directors of Guarantor has determined that this Guaranty may reasonably be
expected to benefit, directly or indirectly, Guarantor, or (ii) if Guarantor is
a partnership, the requisite number of its partners have determined that this
Guaranty may reasonably be expected to benefit, directly or indirectly,
Guarantor; and
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Exhibit 99.4
(b) Guarantor is familiar with, and has independently reviewed the
books and records regarding, the financial condition of Borrower and is familiar
with the value of any and all collateral intended to be security for the payment
of all or any part of the Guaranteed Indebtedness; provided, however, Guarantor
is not relying on such financial condition or collateral as an inducement to
enter into this Guaranty; and
(c) Guarantor has adequate means to obtain from Borrower on a
continuing basis information concerning the financial condition of Borrower and
Guarantor is not relying on Lender to provide such information to Guarantor
either now or in the future; and
(d) Guarantor has the power and authority to execute, deliver and
perform this Guaranty and any other agreements executed by Guarantor
contemporaneously herewith, and the execution, delivery and performance of this
Guaranty and any other agreements executed by Guarantor contemporaneously
herewith do not and will not violate (i) any agreement or instrument to which
Guarantor is a party, (ii) any law, rule, regulation or order of any
governmental authority to which Guarantor is subject, or (iii) its articles or
certificate of incorporation or bylaws, if Guarantor is a corporation, or its
partnership agreement, if Guarantor is a partnership; and
(e) Neither Lender nor any other party has made any representation,
warranty or statement to Guarantor in order to induce Guarantor to execute this
Guaranty; and
(f) The financial statements and other financial information
regarding Guarantor heretofore and hereafter delivered to Lender are and shall
be true and correct in all material respects and fairly present the financial
position of Guarantor as of the dates thereof, and no material adverse change
has occurred in the financial condition of Guarantor reflected in the financial
statements and other financial information regarding Guarantor heretofore
delivered to Lender since the date of the last statement thereof; and
(g) As of the date hereof, and after giving effect to this Guaranty
and the obligations evidenced hereby, (i) Guarantor is and will be solvent, (ii)
the fair saleable value of Guarantor's assets exceeds and will continue to
exceed its liabilities (both fixed and contingent), (iii) Guarantor is and will
continue to be able to pay its debts as they mature, and (iv) if Guarantor is
not an individual, Guarantor has and will continue to have sufficient capital to
carry on its business and all businesses in which it is about to engage.
5. COVENANTS. Guarantor hereby covenants and agrees with Lender as
follows:
(a) Guarantor shall not, so long as its obligations under this
Guaranty continue, transfer or pledge any material portion of its assets for
less than full and adequate consideration; and
(b) Guarantor shall promptly furnish to Lender at any time and from
time to time such financial statements and other financial information of
Guarantor as the Lender may require, in form and substance satisfactory to
Lender; and
(c) Guarantor shall comply with all terms and provisions of the Loan
Documents that apply to Guarantor; and
(d) Guarantor shall promptly inform Lender of (i) any litigation or
governmental investigation against Guarantor or affecting any security for all
or any part of the Guaranteed Indebtedness or this Guaranty which, if determined
adversely, might have a material adverse effect upon the financial condition of
Guarantor or upon such security or might cause a default
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Exhibit 99.4
under any of the Loan Documents, (ii) any claim or controversy which might
become the subject of such litigation or governmental investigation, and (iii)
any material adverse change in the financial condition of Guarantor.
6. CONSENT AND WAIVER.
(a) Guarantor waives (i) promptness, diligence and notice of
acceptance of this Guaranty and notice of the incurring of any obligation,
indebtedness or liability to which this Guaranty applies or may apply and waives
presentment for payment, notice of nonpayment, protest, demand, notice of
protest, notice of intent to accelerate, notice of acceleration, notice of
dishonor, diligence in enforcement and indulgences of every kind, and (ii) the
taking of any other action by Lender, including without limitation giving any
notice of default or any other notice to, or making any demand on, Borrower, any
other guarantor of all or any part of the Guaranteed Indebtedness or any other
party.
(b) Guarantor waives any rights Guarantor has under, or any
requirements imposed by, Chapter 34 of the Texas Business and Commerce Code, as
in effect on the date of this Guaranty or as it may be amended from time to
time.
(c) Lender may at any time, without the consent of or notice to
Guarantor, without incurring responsibility to Guarantor and without impairing,
releasing, reducing or affecting the obligations of Guarantor hereunder: (i)
change the manner, place or terms of payment of all or any part of the
Guaranteed Indebtedness, or renew, extend, modify, rearrange or alter all or any
part of the Guaranteed Indebtedness; (ii) change the interest rate accruing on
any of the Guaranteed Indebtedness (including, without limitation, any periodic
change in such interest rate that occurs because such Guaranteed Indebtedness
accrues interest at a variable rate which may fluctuate from time to time);
(iii) sell, exchange, release, surrender, subordinate, realize upon or otherwise
deal with in any manner and in any order any collateral for all or any part of
the Guaranteed Indebtedness or this Guaranty or setoff against all or any part
of the Guaranteed Indebtedness; (iv) neglect, delay, omit, fail or refuse to
take or prosecute any action for the collection of all or any part of the
Guaranteed Indebtedness or this Guaranty or to take or prosecute any action in
connection with any of the Loan Documents; (v) exercise or refrain from
exercising any rights against Borrower or others, or otherwise act or refrain
from acting; (vi) settle or compromise all or any part of the Guaranteed
Indebtedness and subordinate the payment of all or any part of the Guaranteed
Indebtedness to the payment of any obligations, indebtedness or liabilities
which may be due or become due to Lender or others; (vii) apply any deposit
balance, fund, payment, collections through process of law or otherwise or other
collateral of Borrower to the satisfaction and liquidation of the indebtedness
or obligations of Borrower to Lender not guaranteed under this Guaranty; and
(viii) apply any sums paid to Lender by Guarantor, Borrower or others to the
Guaranteed Indebtedness in such order and manner as Lender, in its sole
discretion, may determine.
(d) Should Lender seek to enforce the obligations of Guarantor
hereunder by action in any court or otherwise, Guarantor waives any requirement,
substantive or procedural, that (i) Lender first enforce any rights or remedies
against Borrower or any other person or entity liable to Lender for all or any
part of the Guaranteed Indebtedness, including without limitation that a
judgment first be rendered against Borrower or any other person or entity, or
that Borrower or any other person or entity should be joined in such cause, or
(ii) Lender first enforce rights against any collateral which shall ever have
been given to secure all or any part of the Guaranteed Indebtedness or this
Guaranty. Such waiver shall be without prejudice to Lender's right, at its
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Exhibit 99.4
option, to proceed against Borrower or any other person or entity, whether by
separate action or by joinder.
(e) In addition to any other waivers, agreements and covenants of
Guarantor set forth herein, Guarantor hereby further waives and releases all
claims, causes of action, defenses and offsets for any act or omission of
Lender, its directors, officers, employees, representatives or agents in
connection with Lender's administration of the Guaranteed Indebtedness, except
for Lender's willful misconduct and gross negligence.
7. OBLIGATIONS NOT IMPAIRED.
(a) Guarantor agrees that its obligations hereunder shall not be
released, diminished, impaired, reduced or affected by the occurrence of any one
or more of the following events: (i) the death, disability or lack of corporate
power of Borrower, Guarantor (except as provided in PARAGRAPH 10 herein) or any
other guarantor of all or any part of the Guaranteed Indebtedness, (ii) any
receivership, insolvency, bankruptcy or other proceedings affecting Borrower,
Guarantor or any other guarantor of all or any part of the Guaranteed
Indebtedness, or any of their respective property; (iii) the partial or total
release or discharge of Borrower or any other guarantor of all or any part of
the Guaranteed Indebtedness, or any other person or entity from the performance
of any obligation contained in any instrument or agreement evidencing, governing
or securing all or any part of the Guaranteed Indebtedness, whether occurring by
reason of law or otherwise; (iv) the taking or accepting of any collateral for
all or any part of the Guaranteed Indebtedness or this Guaranty; (v) the taking
or accepting of any other guaranty for all or any part of the Guaranteed
Indebtedness; (vi) any failure by Lender to acquire, perfect or continue any
lien or security interest on collateral securing all or any part of the
Guaranteed Indebtedness or this Guaranty; (vii) the impairment of any collateral
securing all or any part of the Guaranteed Indebtedness or this Guaranty; (viii)
any failure by Lender to sell any collateral securing all or any part of the
Guaranteed Indebtedness or this Guaranty in a commercially reasonable manner or
as otherwise required by law; (ix) any invalidity or unenforceability of or
defect or deficiency in any of the Loan Documents; or (x) any other circumstance
which might otherwise constitute a defense available to, or discharge of,
Borrower or any other guarantor of all or any part of the Guaranteed
Indebtedness.
(b) This Guaranty shall continue to be effective or be reinstated,
as the case may be, if at any time any payment of all or any part of the
Guaranteed Indebtedness is rescinded or must otherwise be returned by Lender
upon the insolvency, bankruptcy or reorganization of Borrower, Guarantor, any
other guarantor of all or any part of the Guaranteed Indebtedness, or otherwise,
all as though such payment had not been made.
(c) In the event Borrower is a corporation, joint stock association
or partnership, or is hereafter incorporated, none of the following shall affect
Guarantor's liability hereunder: (i) the unenforceability of all or any part of
the Guaranteed Indebtedness against Borrower by reason of the fact that the
Guaranteed Indebtedness exceeds the amount permitted by law; (ii) the act of
creating all or any part of the Guaranteed Indebtedness is ultra xxxxx; or (iii)
the officers or partners creating all or any part of the Guaranteed Indebtedness
acted in excess of their authority. Guarantor hereby acknowledges that
withdrawal from, or termination of, any ownership interest in Borrower now or
hereafter owned or held by Guarantor shall not alter, affect or in any way limit
the obligations of Guarantor hereunder.
8. ACTIONS AGAINST GUARANTOR. In the event of a default in the
payment or performance of all or any part of the Guaranteed Indebtedness when
such Guaranteed Indebtedness becomes due, whether by its terms, by acceleration
or otherwise, Guarantor shall, without notice or demand,
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Exhibit 99.4
promptly pay the amount due thereon to Lender, in lawful money of the United
States, at Lender's address set forth in SUBPARAGRAPH 1(A) above. One or more
successive or concurrent actions may be brought against Guarantor, either in the
same action in which Borrower is sued or in separate actions, as often as Lender
deems advisable. The exercise by Lender of any right or remedy under this
Guaranty or under any other agreement or instrument, at law, in equity or
otherwise, shall not preclude concurrent or subsequent exercise of any other
right or remedy. The books and records of Lender shall be admissible as evidence
in any action or proceeding involving this Guaranty and shall be PRIMA FACIE
evidence of the payments made on, and the outstanding balance of, the Guaranteed
Indebtedness.
9. PAYMENT BY GUARANTOR. Whenever Guarantor pays any sum which is
or may become due under this Guaranty, written notice must be delivered to
Lender contemporaneously with such payment. Such notice shall be effective for
purposes of this paragraph when contemporaneously with such payment Lender
receives such notice either by: (a) personal delivery to the address and
designated department of Lender identified in SUBPARAGRAPH 1(A) above, or (b)
United States mail, certified or registered, return receipt requested, postage
prepaid, addressed to Lender at the address shown in SUBPARAGRAPH 1(A) above. In
the absence of such notice to Lender by Guarantor in compliance with the
provisions hereof, any sum received by Lender on account of the Guaranteed
Indebtedness shall be conclusively deemed paid by Borrower.
10. DEATH OF GUARANTOR. In the event of the death of Guarantor, the
obligations of the deceased Guarantor under this Guaranty shall continue as an
obligation against his estate as to (a) all of the Guaranteed Indebtedness that
is outstanding on the date of Guarantor's death, and any renewals or extensions
thereof, and (b) all loans, advances and other extensions of credit made to or
for the account of Borrower on or after the date of Guarantor's death pursuant
to an obligation of Lender under a commitment or agreement described in
SUBPARAGRAPH 1(D) above and made to or with Borrower prior to the date of
Guarantor's death. The terms and conditions of this Guaranty, including without
limitation the consents and waivers set forth in PARAGRAPH 6 hereof, shall
remain in effect with respect to the Guaranteed Indebtedness described in the
preceding sentence in the same manner as if Guarantor had not died.
11. NOTICE OF SALE. In the event that Guarantor is entitled to
receive any notice under the Uniform Commercial Code, as it exists in the state
governing any such notice, of the sale or other disposition of any collateral
securing all or any part of the Guaranteed Indebtedness or this Guaranty,
reasonable notice shall be deemed given when such notice is deposited in the
United States mail, postage prepaid, at the address for Guarantor set forth in
SUBPARAGRAPH 1(C) above, five (5) days prior to the date any public sale, or
after which any private sale, of any such collateral is to be held; PROVIDED,
HOWEVER, that notice given in any other reasonable manner or at any other
reasonable time shall be sufficient.
12. WAIVER BY LENDER. No delay on the part of Lender in exercising
any right hereunder or failure to exercise the same shall operate as a waiver of
such right. In no event shall any waiver of the provisions of this Guaranty be
effective unless the same be in writing and signed by an officer of Lender, and
then only in the specific instance and for the purpose given.
13. SUCCESSORS AND ASSIGNS. This Guaranty is for the benefit of
Lender, its successors and assigns. This Guaranty is binding upon Guarantor and
Guarantor's heirs, executors, administrators, personal representatives and
successors, including without limitation any person or entity obligated by
operation of law upon the reorganization, merger, consolidation or other change
in the organizational structure of Guarantor.
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Exhibit 99.4
14. COSTS AND EXPENSES. Guarantor shall pay on demand by Lender all
costs and expenses, including without limitation all reasonable attorneys' fees,
incurred by Lender in connection with the preparation, administration,
enforcement and/or collection of this Guaranty. This covenant shall survive the
payment of the Guaranteed Indebtedness.
15. SEVERABILITY. If any provision of this Guaranty is held by a
court of competent jurisdiction to be illegal, invalid or unenforceable under
present or future laws, such provision shall be fully severable, shall not
impair or invalidate the remainder of this Guaranty and the effect thereof shall
be confined to the provision held to be illegal, invalid or unenforceable.
16. NO OBLIGATION. Nothing contained herein shall be construed as an
obligation on the part of Lender to extend or continue to extend credit to
Borrower.
17. AMENDMENT. No modification or amendment of any provision of this
Guaranty, nor consent to any departure by Guarantor therefrom, shall be
effective unless the same shall be in writing and signed by an officer of
Lender, and then shall be effective only in the specific instance and for the
purpose for which given.
18. CUMULATIVE RIGHTS. All rights and remedies of Lender hereunder
are cumulative of each other and of every other right or remedy which Lender may
otherwise have at law or in equity or under any instrument or agreement, and the
exercise of one or more of such rights or remedies shall not prejudice or impair
the concurrent or subsequent exercise of any other rights or remedies.
19. GOVERNING LAW, VENUE. This Guaranty is intended to be performed
in the State of Texas. Except to the extent that the laws of the United States
may apply to the terms hereof, the substantive laws of the State of Texas shall
govern the validity, construction, enforcement and interpretation of this
Guaranty. In the event of a dispute involving this Guaranty or any other
instruments executed in connection herewith, the undersigned irrevocably agrees
that venue for such dispute shall lie in any court of competent jurisdiction in
Bexar County, Texas.
20. COMPLIANCE WITH APPLICABLE USURY LAWS. Notwithstanding any other
provision of this Guaranty or of any instrument or agreement evidencing,
governing or securing all or any part of the Guaranteed Indebtedness, Guarantor
and Lender by its acceptance hereof agree that Guarantor shall never be required
or obligated to pay interest in excess of the maximum non-usurious interest rate
as may be authorized by applicable law for the written contracts which
constitute the Guaranteed Indebtedness. It is the intention of Guarantor and
Lender to conform strictly to the applicable laws which limit interest rates,
and any of the aforesaid contracts for interest, if and to the extent payable by
Guarantor, shall be held to be subject to reduction to the maximum non-usurious
interest rate allowed under said law.
21. GENDER. Within this Guaranty, words of any gender shall be held
and construed to include the other gender.
22. CAPTIONS. The headings in this Guaranty are for convenience only
and shall not define or limit the provisions hereof.
23. IRREVOCABILITY. Guarantor understands and agrees that this
Guaranty is irrevocable.
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Exhibit 99.4
EXECUTED as of the date first above written.
GUARANTOR:
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BEHRINGER HARVARD SHORT-TERM OPPORTUNITY FUND I LP, A TEXAS
LIMITED PARTNERSHIP
BY: ________________________________________
XXXXXX X. XXXXXXXXX, ITS GENERAL PARTNER
AND 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: _____________________________________________
NAME: __________________________________________
TITLE: __________________________________________
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