Exhibit 99.4
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "GUARANTY") is made as of the 1st day of
September, by BEHRINGER HARVARD 250/290 XXXXXXXXX XX, a Texas limited
partnership ("GUARANTOR"), in favor of BANK OF AMERICA, N.A., a national banking
association (together with its successors and assigns, "ADMINISTRATIVE AGENT"),
as Administrative Agent on behalf of itself and the other Lenders (collectively,
"LENDERS") now or hereafter made a party to the Credit Agreement (defined
below).
PRELIMINARY STATEMENTS
Administrative Agent, the Lenders, and Behringer Harvard Short-Term
Operating Fund I LP, a Texas limited partnership ("BORROWER") and Guarantor,
among others, have entered into, are entering into concurrently herewith, or
contemplate entering into, that certain Credit Agreement of even date herewith
(herein called, as it may hereafter be modified, supplemented, restated,
extended, or renewed and in effect from time to time, the "CREDIT AGREEMENT"),
which Credit Agreement sets forth the terms and conditions of a line of
revolving credit facility (the "LOAN").
A condition precedent to Lenders' obligation to make the Loan to
Borrower is Guarantor's execution and delivery to Lenders of this Guaranty.
Any capitalized term used and not defined in this Guaranty shall have
the meaning given to such term in the Credit Agreement. This Guaranty is one of
the Loan Documents described in the Credit Agreement.
STATEMENT OF AGREEMENTS
For good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, and as a material inducement to Lenders to extend
credit to Borrower, Guarantor hereby guarantees to Administrative Agent and the
other Lenders the prompt and full payment of the indebtedness and obligations
described below in this Guaranty (collectively called the "GUARANTEED
OBLIGATIONS"), this Guaranty being upon the following terms and conditions:
1. GUARANTY OF PAYMENT. Guarantor hereby unconditionally and
irrevocably guarantees to Administrative Agent and the other Lenders the
punctual payment when due, whether by lapse of time, by acceleration of
maturity, or otherwise, of all principal, interest (including interest accruing
after the commencement of any bankruptcy or insolvency proceeding by or against
Borrower, whether or not allowed in such proceeding), fees, late charges, costs,
expenses, indemnification indebtedness, and other sums of money now or hereafter
due and owing, or which Borrower is obligated to pay, pursuant to (a) the terms
of any Note, the Credit Agreement, any LC Agreement, any application, agreement,
note or other document executed and delivered in connection with any Swap
Transaction or any other Loan Documents, and any indemnifications contained in
the Loan Documents, now or hereafter existing, and (b) all renewals, extensions,
refinancings, modifications, supplements or amendments of such indebtedness, or
any of the Loan Documents, or any part thereof (the indebtedness described in
clauses (a) and (b) above in this SECTION 1 is herein collectively called
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the "INDEBTEDNESS"). This Guaranty covers the Indebtedness, whether presently
outstanding or arising subsequent to the date hereof, including all amounts
advanced by Lenders in stages or installments. The guaranty of Guarantor as set
forth in this SECTION 1 is a continuing guaranty of payment and not a guaranty
of collection.
2. LIABILITY OF GUARANTOR.
(a) This Guaranty is an absolute, irrevocable and
unconditional guaranty of payment. Guarantor shall be liable for the payment of
the Guaranteed Obligations as a primary obligor. This Guaranty shall be
effective as a waiver of, and Guarantor hereby expressly waives, any and all
rights and privileges to which Guarantor may otherwise have been entitled under
any suretyship laws in effect from time to time, whether existing under statute,
at law or in equity, to require Administrative Agent, on behalf of the Lenders,
to take prior recourse or proceedings against any collateral, security or Person
(hereinafter defined) whatsoever.
(b) Guarantor hereby agrees that the occurrence of any one
or more of the following events or circumstances shall constitute a default
(herein, "EVENT OF DEFAULT") under this Guaranty:
(i) a Default (as defined in the Credit Agreement)
by Borrower or any other Loan Party in payment of the Guaranteed
Obligations, or any part thereof, when such indebtedness becomes due
(subject to any applicable grace period), either by its terms or as the
result of the exercise of any power to accelerate; or
(ii) the failure of Guarantor (subject to any
applicable grace period) to (A) pay timely, completely and
satisfactorily any of the Guaranteed Obligations or (B) perform timely
any of the covenants, terms and conditions of this Guaranty or any other
Loan Documents applicable to Guarantor; or
(iii) if Guarantor: (1) (A) executes an assignment for
the benefit of creditors, or takes any action in furtherance thereof; or
(B) admits in writing its inability to pay, or fails to pay, its debts
generally as they become due; or (C) as a debtor, files a petition,
case, proceeding or other action pursuant to, or voluntarily seeks the
benefit or benefits of and Debtor Relief Laws, or takes any action in
furtherance thereof; or (D) seeks the appointment of a receiver,
trustee, custodian or liquidator of any significant portion of its
property; or (2) suffers the filing of a petition, case, proceeding or
other action against it as a debtor under any Debtor Relief Laws or
seeking appointment of a receiver, trustee, custodian or liquidator of
any significant portion of its property, and (A) admits, acquiesces in
or fails to contest diligently the material allegations thereof, or (B)
the petition, case, proceeding or other action results in entry of any
order for relief or order granting relief sought against it, or (C) in a
proceeding under Debtor Relief Laws, the case is converted from one
chapter to another, or (D) fails to have the petition, case, proceeding
or other action permanently dismissed or discharged on or before the
earlier of trial thereon or one hundred twenty (120) days next following
the date of its filing; or (3) conceals, removes, or permits to be
concealed or removed, any part of its property, with intent to hinder,
delay or defraud its creditors or any of them, or makes or suffers a
transfer of any of its property which is fraudulent under any
bankruptcy, fraudulent
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conveyance or similar law; or suffers or permits, while insolvent, any
creditor to obtain a lien (other than as described in subparagraph (4)
below) upon any of its property through legal proceedings which are not
vacated and such lien discharged prior to enforcement thereof and in any
event within sixty (60) days from the date thereof; or (4) fails to have
discharged within a period of ten (10) days any attachment,
sequestration, or similar writ levied upon its property; or (5) fails to
pay within thirty (30) days any final (unappealable) money judgment
against it; or
(iv) the falsity in any material respect of, or any
material omission in, any representation made to Lender by Guarantor
under this Guaranty or any other Loan Document to which Guarantor is a
party.
Upon the occurrence and during the continuation of such Event of Default, the
Guaranteed Obligations, for purposes of this Guaranty, shall be deemed
immediately due and payable at the election of Administrative Agent, and
Guarantor shall, on demand and without presentment, protest, notice of protest,
further notice of nonpayment or of dishonor, default or nonperformance, or
notice of acceleration or of intent to accelerate, or any other notice
whatsoever, without any notice having been given to Guarantor previous to such
demand of the acceptance by Administrative Agent of this Guaranty, and without
any notice having been given to Guarantor previous to such demand of the
creating or incurring of such indebtedness, all such notices being hereby waived
by Guarantor, pay all of the Indebtedness, or perform or observe the agreement,
covenant, term or condition then to be performed by Guarantor, as the case may
be, and pay all damages and all costs and expenses that may arise in consequence
of such Event of Default (including, without limitation, reasonable attorneys'
fees and expenses, investigation costs, court costs, and any and all other costs
and expenses reasonably incurred by Administrative Agent and the Lenders in
connection with the collection and enforcement of this Guaranty, the Loan or any
other Loan Document), whether or not suit is filed thereon, or whether at
maturity or by acceleration, or whether before or after maturity, or whether in
connection with bankruptcy, insolvency or appeal. It shall not be necessary for
Administrative Agent, on behalf of the Lenders, in order to enforce such payment
by Guarantor, first to institute suit or pursue or exhaust any rights or
remedies against Borrower or others liable on such indebtedness, or to enforce
any rights against any security that shall ever have been given to secure such
indebtedness, or to join Borrower or any others liable for the payment of the
Guaranteed Obligations or any part thereof in any action to enforce this
Guaranty, or to resort to any other means of obtaining payment of the Guaranteed
Obligations; PROVIDED, HOWEVER, that nothing herein contained shall prevent
Administrative Agent, on behalf of the Lenders, from suing on the Loan or
foreclosing any Mortgage or from exercising any other rights thereunder, and if
such foreclosure or other remedy is availed of, only the net proceeds therefrom,
after deduction of all charges and expenses of every kind and nature whatsoever,
shall be applied in reduction of the amount due on the Loan and any Mortgage,
and Administrative Agent and the Lenders shall not be required to institute or
prosecute proceedings to recover any deficiency as a condition of payment
hereunder or enforcement hereof. At any sale of any Property or other collateral
given for the Indebtedness or any part thereof, whether by foreclosure or
otherwise, any Lender may at its discretion purchase all or any part of any
Property or other such collateral so sold or offered for sale for its own
account and may, in payment of the amount bid therefor, deduct such amount from
the balance due it pursuant to the terms of the Credit Agreement and the other
Loan Documents.
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(c) Suit may be brought or demand may be made against
Borrower or against all parties who have signed this Guaranty or any other
guaranty covering all or any part of the Guaranteed Obligations, or against any
one or more of them, separately or together, without impairing the rights of
Administrative Agent and the other Lenders against any party hereto. Any time
that Administrative Agent, on behalf of the Lenders, is entitled to exercise its
rights or remedies hereunder, it may in its discretion elect to demand payment.
3. CERTAIN AGREEMENTS AND WAIVERS BY GUARANTOR.
(a) Guarantor hereby agrees that neither Lenders' rights or
remedies nor Guarantor's obligations under the terms of this Guaranty shall be
released, diminished, impaired, reduced or affected by any one or more of the
following events, actions, facts, circumstances or rights, and the liability of
Guarantor under this Guaranty shall be absolute and unconditional irrespective
of:
(i) any limitation of liability or recourse in any
other Loan Document or arising under any law;
(ii) any claim or defense that this Guaranty was made
without consideration or is not supported by adequate consideration;
(iii) the taking or accepting of any other security or
guaranty for, or right of recourse with respect to, any or all of the
Guaranteed Obligations;
(iv) any homestead exemption or any other exemption
under applicable law;
(v) any release, surrender, abandonment, exchange,
alteration, sale or other disposition, subordination, deterioration,
waste, failure to protect or preserve, impairment, or loss of, or any
failure to create or perfect any lien or security interest with respect
to, or any other dealings with, any collateral or security at any time
existing or purported, believed or expected to exist in connection with
any or all of the Guaranteed Obligations, including any impairment of
Guarantor's recourse against any Person or collateral;
(vi) whether express or by operation of law, any
partial release of the liability of Guarantor hereunder, or if one or
more other guaranties are now or hereafter obtained by Lenders covering
all or any part of the Guaranteed Obligations, any complete or partial
release of any one or more of such guarantors under any such other
guaranty, or any complete or partial release of Borrower or any other
party liable, directly or indirectly, for the payment of any or all of
the Guaranteed Obligations;
(vii) the death, insolvency, bankruptcy, disability,
dissolution, liquidation, termination, receivership, reorganization,
merger, consolidation, change of form, structure or ownership, sale of
all assets, or lack of corporate, partnership or other power of Borrower
or any other party at any time liable for the payment of any or all of
the Guaranteed Obligations;
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(viii) either with or without notice to or consent of
Guarantor: any renewal, extension, modification, supplement,
subordination or rearrangement of the terms of any or all of the
Guaranteed Obligations and/or any of the Loan Documents, including,
without limitation, material alterations of the terms of payment
(including changes in maturity date(s) and interest rate(s)) or any
other terms thereof, or any waiver, termination, or release of, or
consent to departure from, any of the Loan Documents or any other
guaranty of any or all of the Guaranteed Obligations, or any adjustment,
indulgence, forbearance, or compromise that may be granted from time to
time by Administrative Agent, on behalf of the Lenders, to Borrower,
Guarantor, and/or any other Person at any time liable for the payment of
any or all of the Guaranteed Obligations;
(ix) any neglect, lack of diligence, delay, omission,
failure, or refusal of Administrative Agent, on behalf of the Lenders,
to take or prosecute (or in taking or prosecuting) any action for the
collection or enforcement of any of the Guaranteed Obligations, or to
foreclose or take or prosecute any action to foreclose (or in
foreclosing or taking or prosecuting any action to foreclose) upon any
security therefor, or to exercise (or in exercising) any other right or
power with respect to any security therefor, or to take or prosecute (or
in taking or prosecuting) any action in connection with any Loan
Document, or any failure to sell or otherwise dispose of in a
commercially reasonable manner any collateral securing any or all of the
Guaranteed Obligations;
(x) any failure of Administrative Agent, on behalf
of the Lenders, to notify Guarantor of any creation, renewal, extension,
rearrangement, modification, supplement, subordination, or assignment of
the Guaranteed Obligations or any part thereof, or of any Loan Document,
or of any release of or change in any security, or of any other action
taken or refrained from being taken by Administrative Agent, on behalf
of the Lenders, against Borrower or any security or other recourse, or
of any new agreement between Lenders and Borrower, it being understood
that Lenders shall not be required to give Guarantor any notice of any
kind under any circumstances with respect to or in connection with the
Guaranteed Obligations, any and all rights to notice Guarantor may have
otherwise had being hereby waived by Guarantor, and the Guarantor shall
be responsible for obtaining for itself information regarding the
Borrower, including, but not limited to, any changes in the business or
financial condition of the Borrower, and the Guarantor acknowledges and
agrees that the Administrative Agent and the other Lenders shall have no
duty to notify the Guarantor of any information which the Administrative
Agent and the other Lenders may have concerning the Borrower.
(xi) if for any reason any Lender is required to
refund any payment by Borrower to any other party liable for the payment
of any or all of the Guaranteed Obligations or pay the amount thereof to
someone else;
(xii) the making of advances by Administrative Agent
to protect its interest in any collateral, preserve the value of any
collateral or for the purpose of performing any term or covenant
contained in any of the Loan Documents;
(xiii) the existence of any claim, counterclaim,
set-off or other right that Guarantor may at any time have against
Borrower, Administrative Agent, any Lender, or
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any other Person, whether or not arising in connection with this
Guaranty, any Note, the Credit Agreement, or any other Loan Document;
(xiv) the unenforceability of all or any part of the
Guaranteed Obligations against Borrower, whether because the Guaranteed
Obligations exceed the amount permitted by law or violate any usury law,
or because the act of creating the Guaranteed Obligations, or any part
thereof, is ultra xxxxx, or because the officers or Persons creating the
Guaranteed Obligations acted in excess of their authority, or because of
a lack of validity or enforceability of or defect or deficiency in any
of the Loan Documents, or because Borrower has any valid defense, claim
or offset with respect thereto, or because Borrower's obligation ceases
to exist by operation of law, or because of any other reason or
circumstance, it being agreed that Guarantor shall remain liable hereon
regardless of whether Borrower or any other Person be found not liable
on the Guaranteed Obligations, or any part thereof, for any reason (and
regardless of any joinder of Borrower or any other party in any action
to obtain payment of any or all of the Guaranteed Obligations); or
(xv) any order, ruling or plan of reorganization
emanating from proceedings under Title 11 of the United States Code with
respect to Borrower or any other Person, including any extension,
reduction, composition, or other alteration of the Guaranteed
Obligations, whether or not consented to by Administrative Agent and the
other Lenders.
(b) In the event any payment by Borrower or any other Person
to any Lender is held to constitute a preference, fraudulent transfer or other
voidable payment under any bankruptcy, insolvency or similar law, or if for any
other reason any Lender is required to refund such payment or pay the amount
thereof to any other party, such payment by Borrower or any other party to any
Lender shall not constitute a release of Guarantor from any liability hereunder,
and this Guaranty shall continue to be effective or shall be reinstated
(notwithstanding any prior release, surrender or discharge by Lenders of this
Guaranty or of Guarantor), as the case may be, with respect to, and this
Guaranty shall apply to, any and all amounts so refunded by any such Lender or
paid by any such Lender to another Person (which amounts shall constitute part
of the Guaranteed Obligations), and any interest paid by any such Lender and any
reasonable attorneys' fees, costs and expenses paid or incurred by any such
Lender in connection with any such event. It is the intent of Guarantor and
Lenders that the obligations and liabilities of Guarantor hereunder are absolute
and unconditional under any and all circumstances and that until the Guaranteed
Obligations are fully and finally paid, and not subject to refund or
disgorgement, the obligations and liabilities of Guarantor hereunder shall not
be discharged or released, in whole or in part, by any act or occurrence that
might, but for the provisions of this Guaranty, be deemed a legal or equitable
discharge or release of a guarantor. Administrative Agent, on behalf of the
Lenders, shall be entitled to continue to hold this Guaranty in its possession
for a period of one year from the date the Guaranteed Obligations are paid in
full and for so long thereafter as may be necessary to enforce any obligation of
Guarantor hereunder and/or to exercise any right or remedy of Lenders hereunder.
(c) If acceleration of the time for payment of any amount
payable by Borrower under any Note, the Credit Agreement, or any other Loan
Document is stayed or
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delayed by any law or tribunal, all such amounts shall nonetheless be payable by
Guarantor on demand by Administrative Agent, on behalf of the Lenders.
(d) This Guaranty may not be changed orally and no
obligation of the Guarantor can be released or waived by Administrative Agent,
on behalf of the Lenders, except by a signed writing by an authorized officer of
Administrative Agent. Guarantor hereby waives any rights it might have under
C.R.S. xx.xx. 00-00-000 and 103.
4. SUBORDINATION. If, for any reason whatsoever, Borrower is now or
hereafter becomes indebted to Guarantor:
(a) such indebtedness and all interest thereon and all
liens, security interests and rights now or hereafter existing with respect to
property of Borrower securing such indebtedness shall, at all times, be
subordinate in all respects to the Guaranteed Obligations and to all liens,
security interests and rights now or hereafter existing to secure the Guaranteed
Obligations;
(b) Guarantor shall not be entitled to enforce or receive
payment, directly or indirectly, of any such indebtedness of Borrower to
Guarantor until the Guaranteed Obligations have been fully and finally paid;
(c) Guarantor hereby assigns and grants to Administrative
Agent, on behalf of the Lenders, a security interest in all such indebtedness
and security therefor, if any, of Borrower to Guarantor now existing or
hereafter arising, including any dividends and payments pursuant to debtor
relief or insolvency proceedings referred to below. In the event of
receivership, bankruptcy, reorganization, arrangement or other debtor relief or
insolvency proceedings involving Borrower as debtor, Administrative Agent, on
behalf of the Lenders, shall have the right to prove its claim in any such
proceeding so as to establish its rights hereunder and shall have the right to
receive directly from the receiver, trustee or other custodian (whether or not a
Default shall have occurred or be continuing under any of the Loan Documents),
dividends and payments that are payable upon any obligation of Borrower to
Guarantor now existing or hereafter arising, and to have all benefits of any
security therefor, until the Guaranteed Obligations have been fully and finally
paid. If, notwithstanding the foregoing provisions, Guarantor should receive any
payment, claim or distribution that is prohibited as provided above in this
SECTION 4, Guarantor shall pay the same to Administrative Agent, on behalf of
the Lenders, immediately, Guarantor hereby agreeing that it shall receive the
payment, claim or distribution in trust for Administrative Agent, on behalf of
the Lenders, and shall have absolutely no dominion over the same except to pay
it immediately to Administrative Agent; and
(d) Guarantor shall promptly upon request of Administrative
Agent from time to time execute such documents and perform such acts as
Administrative Agent may require to evidence and perfect its interest and to
permit or facilitate exercise of its rights under this SECTION 4, including, but
not limited to, execution and delivery of financing statements, proofs of claim,
further assignments and security agreements, and delivery to Administrative
Agent of any promissory notes or other instruments evidencing indebtedness of
Borrower to Guarantor. All promissory notes, accounts receivable ledgers or
other evidences, now or hereafter held by Guarantor, of obligations of Borrower
to Guarantor shall contain a specific written notice thereon
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that the indebtedness evidenced thereby is subordinated under and is subject to
the terms of this Guaranty.
5. OTHER LIABILITY OF GUARANTOR OR BORROWER. If Guarantor is or
becomes liable, by endorsement or otherwise, for any indebtedness owing by
Borrower to Lenders other than under this Guaranty, such liability shall not be
in any manner impaired or affected hereby, and the rights of Lenders hereunder
shall be cumulative of any and all other rights that Lenders may have against
Guarantor. If Borrower is or becomes indebted to Lenders for any indebtedness
other than or in excess of the Indebtedness for which Guarantor is liable under
this Guaranty, any payment received or recovery realized upon such other
indebtedness of Borrower to Lenders may, except to the extent paid by Guarantor
on the Indebtedness or specifically required by law or agreement of
Administrative Agent to be applied to the Indebtedness, in Administrative
Agent's sole discretion, be applied upon indebtedness of Borrower to Lenders
other than the Indebtedness. This Guaranty is independent of (and shall not be
limited by) any other guaranty now existing or hereafter given. Further,
Guarantor's liability under this Guaranty is in addition to any and all other
liability Guarantor may have in any other capacity, including without
limitation, its capacity as a general partner.
6. SUCCESSORS AND ASSIGNS. This Guaranty is for the benefit of
Administrative Agent and other Lenders and their successors and assigns, and in
the event of an assignment of the Guaranteed Obligations, or any part thereof,
the rights and benefits hereunder, to the extent applicable to the Guaranteed
Obligations so assigned, may be transferred with such Guaranteed Obligations.
Guarantor waives notice of any transfer or assignment of the Guaranteed
Obligations, or any part thereof, and agrees that failure to give notice of any
such transfer or assignment will not affect the liabilities of Guarantor
hereunder.
7. BINDING EFFECT. This Guaranty is binding not only on Guarantor,
but also on Guarantor's successors and assigns. If this Guaranty is signed by
more than one Person, then all of the obligations of Guarantor arising hereunder
shall be jointly and severally binding on each of the undersigned, and their
respective heirs, personal representatives, successors and assigns, and the term
"GUARANTOR" shall mean all of such Persons and each of them individually.
8. GOVERNING LAW; FORUM; CONSENT TO JURISDICTION. This Guaranty is
an agreement executed under seal. The validity, enforcement, and interpretation
of this Guaranty, shall for all purposes be governed by and construed in
accordance with the laws of the State of Texas and applicable United States
federal law, and is intended to be performed in accordance with, and only to the
extent permitted by, such laws. If any Guarantor is a corporation, the
designation "(SEAL)" on this Guaranty shall be effective as the affixing of such
Guarantor's corporate seal physically to this Guaranty. All obligations of
Guarantor hereunder are payable at the place or places where the Guaranteed
Obligations are payable. Guarantor hereby irrevocably submits generally and
unconditionally for Guarantor and in respect of Guarantor's property to the
nonexclusive jurisdiction of any state court, or any United States federal
court, sitting in Dallas County, Texas, over any suit, action or proceeding
arising out of or relating to this Guaranty or the Guaranteed Obligations.
Guarantor hereby irrevocably waives, to the fullest extent permitted by law, any
objection that Guarantor may now or hereafter have to the laying of venue in any
such court and any claim that any such court is an inconvenient forum. Final
judgment in any such suit, action or proceeding brought in any such court shall
be conclusive and binding upon
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Guarantor and may be enforced in any court in which Guarantor is subject to
jurisdiction. Guarantor hereby agrees and consents that, in addition to any
methods of service of process provided for under applicable law, all service of
process in any such suit, action or proceeding in any state court, or any United
States federal court, sitting in the state specified in the first sentence of
this Section may be made by certified or registered mail, return receipt
requested, directed to Guarantor at the address set forth at the end of this
Guaranty, or at a subsequent address of which Administrative Agent receives
actual notice from Guarantor in accordance with the notice provisions hereof,
and service so made shall be complete five (5) days after the same shall have
been so mailed. Nothing herein shall affect the right of Administrative Agent to
serve process in any manner permitted by law or limit the right of
Administrative Agent, on behalf of the other Lenders, to bring proceedings
against Guarantor in any other court or jurisdiction. Guarantor hereby releases,
to the extent permitted by applicable law, all errors and all rights of
exemption, appeal, stay of execution, inquisition, and other rights to which the
Guarantor may otherwise be entitled under the laws of the United States of
America or any State or possession of the United States of America now in force
or which may hereinafter be enacted. The authority and power to appear for and
enter judgment against the Guarantor shall not be exhausted by one or more
exercises thereof or by any imperfect exercise thereof and shall not be
extinguished by any judgment entered pursuant thereto. Such authority may be
exercised on one or more occasions or from time to time in the same or different
jurisdiction as often as the Administrative Agent shall deem necessary and
desirable.
9. INVALIDITY OF CERTAIN PROVISIONS. If any provision of this
Guaranty or the application thereof to any Person or circumstance shall, for any
reason and to any extent, be declared to be invalid or unenforceable, neither
the remaining provisions of this Guaranty nor the application of such provision
to any other Person or circumstance shall be affected thereby, and the remaining
provisions of this Guaranty, or the applicability of such provision to other
Persons or circumstances, as applicable, shall remain in effect and be
enforceable to the maximum extent permitted by applicable law.
10. ATTORNEYS' FEES AND COSTS OF COLLECTION. Guarantor shall pay on
demand all attorneys' fees and all other costs and expenses incurred by
Administrative Agent, on behalf of the other Lenders, in the enforcement of or
preservation of Lenders' rights under this Guaranty including, without
limitation, all reasonable attorneys' fees and expenses, investigation costs,
and all court costs, whether or not suit is filed hereon, or whether at maturity
or by acceleration, or whether before or after maturity, or whether in
connection with bankruptcy, insolvency or appeal, or whether in connection with
the collection and enforcement of this Guaranty against any other Guarantor, if
there be more than one. Guarantor agrees to pay interest on any expenses or
other sums due to Administrative Agent under this SECTION 10 that are not paid
within ten (10) days after the same became due, at a rate per annum equal to the
Past Due Rate. Guarantor's obligations and liabilities under this SECTION 10
shall survive any payment or discharge in full of the Guaranteed Obligations.
11. PAYMENTS. All sums payable under this Guaranty shall be paid in
lawful money of the United States of America that at the time of payment is
legal tender for the payment of public and private debts.
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12. CONTROLLING AGREEMENT. It is not the intention of Lenders or
Guarantor to obligate Guarantor to pay interest in excess of that lawfully
permitted to be paid by Guarantor under applicable law. Should it be determined
that any portion of the Guaranteed Obligations or any other amount payable by
Guarantor under this Guaranty constitutes interest in excess of the maximum
amount of interest that Guarantor, in Guarantor's capacity as guarantor, may
lawfully be required to pay under applicable law, the obligation of Guarantor to
pay such interest shall automatically be limited to the payment thereof in the
maximum amount so permitted under applicable law. The provisions of this SECTION
12 shall override and control all other provisions of this Guaranty and of any
other agreement between Guarantor and Administrative Agent, on behalf of the
Lenders.
13. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF GUARANTOR.
Guarantor hereby represents, warrants, and covenants to Administrative Agent and
the other Lenders that (a) Guarantor is wholly owned by Borrower and Guarantor
will derive a material and substantial benefit, directly or indirectly, from the
making of the Loan to Borrower and from the making of this Guaranty by
Guarantor; (b) this Guaranty is duly authorized and valid, and is binding upon
and enforceable against Guarantor; (c) Guarantor is not, and the execution,
delivery and performance by Guarantor of this Guaranty will not cause Guarantor
to be, in violation of or in default with respect to any law or in default (or
subject to acceleration of indebtedness) under any agreement or restriction by
which Guarantor is bound or affected; (d) Guarantor is duly organized, validly
existing, and in good standing under the laws of the state of its organization
and has full limited partnership power and authority to enter into and perform
this Guaranty; (e) there is no litigation pending or, to the knowledge of
Guarantor, threatened before or by any tribunal against or affecting Guarantor
that is reasonably likely to have a Material Adverse Effect; (f) all financial
statements and information heretofore furnished to Administrative Agent by
Guarantor do, and all financial statements and information hereafter furnished
to Administrative Agent by Guarantor will, present, in all material respects,
the financial condition of Guarantor as of their dates and the results of
Guarantor's operations for the periods therein specified, and, since the date of
the most recent financial statements of Guarantor heretofore furnished to
Administrative Agent, no material adverse change has occurred in the financial
condition of Guarantor, nor, except as heretofore disclosed in writing to
Administrative Agent, has Guarantor incurred any material liability, direct or
indirect, fixed or contingent; (g) after giving effect to this Guaranty,
Guarantor is solvent, is not engaged or about to engage in business or a
transaction for which the property of Guarantor is an unreasonably small
capital, and does not intend to incur or believe that it will incur debts that
will be beyond its ability to pay as such debts mature; (h) Lenders have no duty
at any time to investigate or inform Guarantor of the financial or business
condition or affairs of Borrower or any change therein, and Guarantor will keep
fully apprised of Borrower's financial and business condition; (i) Guarantor
acknowledges and agrees that Guarantor may be required to pay the Guaranteed
Obligations in full without assistance or support from Borrower or any other
Person; and (j) Guarantor has read and fully understands the provisions
contained in the Note, the Credit Agreement and the other Loan Documents.
Guarantor's representations, warranties and covenants are a material inducement
to Lenders to enter into the other Loan Documents and shall survive the
execution hereof and any bankruptcy, foreclosure, transfer of security or other
event affecting Borrower, Guarantor, any other party, or any security for all or
any part of the Guaranteed Obligations.
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14. NOTICES. All notices, requests, consents, demands and other
communications required or which any party desires to give hereunder or under
any other Loan Document shall be in writing and, unless otherwise specifically
provided in such other Loan Document, shall be deemed sufficiently given or
furnished if delivered by personal delivery, by courier, or by registered or
certified United States mail, postage prepaid, addressed to the party to whom
directed at the addresses specified in this Guaranty (unless changed by similar
notice in writing given by the particular party whose address is to be changed)
or by telegram, telex, or facsimile. Any such notice or communication shall be
deemed to have been given either at the time of personal delivery or, in the
case of courier or mail, as of the date of first attempted delivery at the
address and in the manner provided herein, or, in the case of telegram, telex or
facsimile, upon receipt; provided that, service of a notice required by any
applicable statute shall be considered complete when the requirements of that
statute are met. Notwithstanding the foregoing, no notice of change of address
shall be effective except upon actual receipt. This Section shall not be
construed in any way to affect or impair any waiver of notice or demand provided
in this Guaranty or in any Loan Document or to require giving of notice or
demand to or upon any Person in any situation or for any reason.
15. CUMULATIVE RIGHTS. The exercise by Administrative Agent, on
behalf of the Lenders, of any right or remedy hereunder or under any other Loan
Document, or at law or in equity, shall not preclude the concurrent or
subsequent exercise of any other right or remedy. Administrative Agent, on
behalf of the Lenders, shall have all rights, remedies and recourses afforded to
Lenders by reason of this Guaranty or any other Loan Document or by law or
equity or otherwise, and the same (a) shall be cumulative and concurrent, (b)
may be pursued separately, successively or concurrently against Guarantor or
others obligated for the Guaranteed Obligations, or any part thereof, or against
any one or more of them, or against any security or otherwise, at the sole and
absolute discretion of Administrative Agent, on behalf of the Lenders, (c) may
be exercised as often as occasion therefor shall arise, it being agreed by
Guarantor that the exercise of, discontinuance of the exercise of or failure to
exercise any of such rights, remedies, or recourses shall in no event be
construed as a waiver or release thereof or of any other right, remedy, or
recourse, and (d) are intended to be, and shall be, nonexclusive. No waiver of
any default on the part of Guarantor or of any breach of any of the provisions
of this Guaranty or of any other document shall be considered a waiver of any
other or subsequent default or breach, and no delay or omission in exercising or
enforcing the rights and powers granted herein or in any other document shall be
construed as a waiver of such rights and powers, and no exercise or enforcement
of any rights or powers hereunder or under any other document shall be held to
exhaust such rights and powers, and every such right and power may be exercised
from time to time. The granting of any consent, approval or waiver by
Administrative Agent, on behalf of the Lenders, shall be limited to the specific
instance and purpose therefor and shall not constitute consent or approval in
any other instance or for any other purpose. No notice to or demand on Guarantor
in any case shall of itself entitle Guarantor to any other or further notice or
demand in similar or other circumstances. No provision of this Guaranty or any
right, remedy or recourse of Lenders with respect hereto, or any default or
breach, can be waived, nor can this Guaranty or Guarantor be released or
discharged in any way or to any extent, except specifically in each case by a
writing intended for that purpose (and which refers specifically to this
Guaranty) executed, and delivered to Guarantor, by Administrative Agent, on
behalf of the Lenders.
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16. TERM OF GUARANTY. This Guaranty shall continue in effect until
all the Guaranteed Obligations are fully and finally paid and discharged, except
that, and notwithstanding any return of this Guaranty to Guarantor, this
Guaranty shall continue in effect (i) with respect to any of the Guaranteed
Obligations that survive the full and final payment of the indebtedness
evidenced by the Credit Agreement and other Loan Documents, (ii) with respect to
all obligations and liabilities of Guarantor under SECTION 10 and (iii) as
provided in SECTION 3(B).
17. FINANCIAL STATEMENTS. Guarantor shall provide or cause to be
provided to Administrative Agent such financial information and reports as may
be required by the terms of the Credit Agreement.
18. DISCLOSURE OF INFORMATION. Subject to the terms of the Credit
Agreement, Lenders may sell or offer to sell the Loan or interests in the Loan
to one or more assignees or participants and may disclose to any such assignee
or participant or prospective assignee or participant, to Lenders' affiliates,
to any regulatory body having jurisdiction over Lenders and to any other parties
as necessary or appropriate in any Lender's reasonable judgment, any information
Lenders now have or hereafter obtain pertaining to the Guaranteed Obligations,
this Guaranty, or Guarantor, including, without limitation, information
regarding any security for the Guaranteed Obligations or for this Guaranty,
credit or other information on Guarantor, Borrower, and/or any other party
liable, directly or indirectly, for any part of the Guaranteed Obligations.
19. RIGHT OF SET-OFF. Upon the occurrence and during the continuance
of any Default, however defined, in the payment when due of any of the
Guaranteed Obligations, each Lender is hereby authorized at any time and from
time to time with prior notice to and the consent of Administrative Agent, to
the fullest extent permitted by applicable law, without notice to any Person
(any such notice being expressly waived by Guarantor to the fullest extent
permitted by applicable law), to set off and apply any and all deposits, funds,
or assets at any time held and other indebtedness at any time owing by such
Lender to or for the credit or the account of Guarantor against any and all of
the obligations of Guarantor now or hereafter existing under this Guaranty,
whether or not such Lender shall have made any demand under this Guaranty or
exercised any other right or remedy hereunder. Such Lender will promptly notify
Guarantor after any such set-off and application made by such Lender, provided
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of Lenders under this SECTION 19 are in
addition to the other rights and remedies (including other rights of set-off)
that Administrative Agent may have, on behalf of all Lenders, and every right of
setoff and lien shall continue in full force and effect until such right of
setoff or lien is specifically waived or released by an instrument in writing
executed by Administrative Agent.
20. SUBROGATION. Notwithstanding anything to the contrary contained
herein, Guarantor shall not have any right of subrogation in or under any of the
Loan Documents or to participate in any way therein, or in any right, title or
interest in and to any security or right of recourse for the Indebtedness or any
right to reimbursement, exoneration, contribution, indemnification or any
similar rights, until the Indebtedness has been fully and finally paid. This
waiver is given to induce Lenders to make the Loan to Borrower.
21. FURTHER ASSURANCES. Guarantor at Guarantor's expense will
promptly execute and deliver to Administrative Agent upon Administrative Agent's
reasonable request all such other
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and further documents, agreements, and instruments in compliance with or
accomplishment of the agreements of Guarantor under this Guaranty.
22. NO FIDUCIARY RELATIONSHIP. The relationship between Lenders and
Guarantor is solely that of lender and guarantor. Lenders have no fiduciary or
other special relationship with or duty to Guarantor and none is created hereby
or may be inferred from any course of dealing or act or omission of any Lender.
23. INTERPRETATION. If this Guaranty is signed by more than one
Person as "Guarantor", then the term "Guarantor" as used in this Guaranty shall
refer to all such Persons, jointly and severally, and all promises, agreements,
covenants, waivers, consents, representations, warranties and other provisions
in this Guaranty are made by and shall be binding upon each and every such
Person, jointly and severally and Administrative Agent, on behalf of all
Lenders, may pursue any Guarantor hereunder without being required (i) to pursue
any other Guarantor hereunder or (ii) pursue rights and remedies under any
Mortgage and/or applicable law with respect to any Property or any other Loan
Documents. The term "Administrative Agent" shall be deemed to include any
subsequent administrative agent appointed under the Credit Agreement. Whenever
the context of any provisions hereof shall require it, words in the singular
shall include the plural, words in the plural shall include the singular, and
pronouns of any gender shall include the other gender. Captions and headings in
the Loan Documents are for convenience only and shall not affect the
construction of the Loan Documents. All references in this Guaranty to
Schedules, Articles, Sections, Subsections, paragraphs and subparagraphs refer
to the respective subdivisions of this Guaranty, unless such reference
specifically identifies another document. The terms "herein", "hereof",
"hereto", "hereunder" and similar terms refer to this Guaranty and not to any
particular Section or subsection of this Guaranty. The terms "include" and
"including" shall be interpreted as if followed by the words "without
limitation". All references in this Guaranty to sums denominated in dollars or
with the symbol "$" refer to the lawful currency of the United States of
America, unless such reference specifically identifies another currency. For
purposes of this Guaranty, "Person" or "Persons" shall include firms,
associations, partnerships (including limited partnerships), joint ventures,
trusts, corporations, limited liability companies, and other legal entities,
including governmental bodies, agencies, or instrumentalities, as well as
natural persons.
24. TIME OF ESSENCE. Time shall be of the essence in this Guaranty
with respect to all of Guarantor's obligations hereunder.
25. COUNTERPARTS. This Guaranty may be executed in multiple
counterparts, each of which, for all purposes, shall be deemed an original, and
all of which taken together shall constitute but one and the same agreement.
26. ENTIRE AGREEMENT. This Guaranty embodies the entire agreement
between Lenders and Guarantor with respect to the guaranty by Guarantor of the
Guaranteed Obligations. This Guaranty supersedes all prior agreements and
understandings, if any, with respect to the guaranty by Guarantor of the
Guaranteed Obligations. No condition or conditions precedent to the
effectiveness of this Guaranty exist. This Guaranty shall be effective upon
execution by Guarantor and delivery to Administrative Agent. This Guaranty may
not be modified, amended or superseded except in a writing signed by
Administrative Agent, on behalf of the Lenders, and
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Guarantor referencing this Guaranty by its date and specifically identifying the
portions hereof that are to be modified, amended or superseded.
27. DISPUTE RESOLUTION.
(a) ARBITRATION. Except to the extent expressly provided
below, any controversy, claim or dispute between or among the parties hereto,
including any such controversy, claim or dispute arising out of or relating to
(i) this Guaranty, (ii) any other Loan Document, (iii) any related agreements or
instruments, or (iv) the transaction contemplated herein or therein (including
any claim based on or arising from an alleged personal injury or business tort)
(collectively, a "DISPUTE"), shall, upon the request of either party, be
determined by binding arbitration in accordance with the Federal Arbitration
Act, Xxxxx 0, Xxxxxx Xxxxxx Code (or if not applicable, the applicable state
law), the applicable rules for arbitration of disputes of JAMS LLC, a Delaware
limited liability company, or any successor thereof ("JAMS"), and the "Special
Rules" set forth below. In the event of any inconsistency, the Special Rules
shall control. The filing of a court action is not intended to constitute a
waiver of the right of Guarantor or Lenders, including the suing party,
thereafter to require submittal of the Dispute to arbitration. Any party to this
Guaranty may bring an action, including a summary or expedited proceeding, to
compel arbitration of any Dispute in any court having jurisdiction over such
action. For the purposes of this dispute resolution provision only, the terms
"party" and "parties" shall include any parent corporation, subsidiary or
affiliate of Administrative Agent involved in the servicing, management or
administration of any obligation described in or evidenced by this Guaranty,
together with the officers, employees, successors and assigns of each of the
foregoing.
(b) SPECIAL RULES.
(i) The arbitration shall be conducted in Dallas,
Texas.
(ii) The arbitration shall be administered by JAMS,
who will appoint an arbitrator; if JAMS is unable to administer or
legally precluded from administering the arbitration, then the American
Arbitration Association will serve. All Disputes shall be determined by
one arbitrator; however, if the amount in controversy in a Dispute
exceeds One Million Dollars ($1,000,000), upon the request of any party,
the Dispute shall be decided by three arbitrators (for purposes of this
Guaranty, referred to collectively as the "arbitrator").
(iii) All arbitration hearings will be commenced
within ninety (90) days of the demand for arbitration and completed
within ninety (90) days from the date of commencement; provided,
however, that upon a showing of good cause, the arbitrator shall be
permitted to extend the commencement of such hearing for up to an
additional sixty (60) days.
(iv) The judgment and the award, if any, of the
arbitrator shall be issued with thirty (30) days of the close of the
hearing. The arbitrator shall provide a concise written statement
setting forth the reasons for the judgment and for the award, if any.
The arbitration award, if any, may be submitted to any court having
jurisdiction to
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be confirmed and enforced, and such confirmation and enforcement shall
not be subject to arbitration.
(v) The arbitrator will have the authority to decide
whether any Dispute is barred by the statute of limitations and, if so,
to dismiss the arbitration on that basis. For purposes of the
application of the statute of limitations, the service on JAMS under
applicable JAMS rules of a notice of Disputes is the equivalent of the
filing of a lawsuit.
(vi) Any dispute concerning this arbitration
provision, including any such dispute as to the validity or
enforceability of this provision, or whether a Dispute is arbitrable,
shall be determined by the arbitrator.
(vii) The arbitrator shall have the power to award
legal fees and costs pursuant to the terms of this Guaranty.
(c) RESERVATIONS OF RIGHTS. Nothing in this Guaranty shall
be deemed to (i) limit the applicability of any otherwise applicable statutes of
limitation and any waivers contained in this Guaranty, (ii) apply to or limit
the right of Administrative Agent, on behalf of the Lenders, (A) to exercise
self help remedies such as (but not limited to) setoff, or (B) to foreclose
judicially or nonjudicially against any real or personal property collateral, or
to exercise judicial or nonjudicial power of sale rights, (C) to obtain from a
court provisional or ancillary remedies such as (but not limited to) injunctive
relief, writ of possession, prejudgment attachment, or the appointment of a
receiver, or (D) to pursue rights against a party to this Guaranty in a
third-party proceeding in any action brought against any Lender in a state,
federal or international court, tribunal or hearing body (including actions in
specialty courts, such as bankruptcy and patent courts), or (iii) limit the
right of Guarantor to obtain from a court provisional or ancillary remedies
(such as but not limited to injunctive relief), which right may be exercised by
Guarantor before or during the pendency of any arbitration proceeding brought
pursuant to this Guaranty. Administrative Agent, on behalf of the Lenders, may
exercise the rights set forth in clauses (A) through (D), inclusive, before,
during or after the pendency of any arbitration proceeding brought pursuant to
this Guaranty. Neither the exercise of self help remedies nor the institution or
maintenance of an action for foreclosure or provisional or ancillary remedies
shall constitute a waiver of the right of any party, including the claimant in
any such action, to arbitrate the merits of the Dispute occasioning resort to
such remedies. No provision in the Loan Documents regarding submission to
jurisdiction and/or venue in any court is intended or shall be construed to be
in derogation of the provisions in any Loan Document for arbitration of any
Dispute.
(d) CONFLICTING PROVISIONS FOR DISPUTE RESOLUTION. If there
is any conflict between the terms, conditions and provisions of this Section and
those of any other provision or agreement for arbitration or dispute resolution,
the terms, conditions and provisions of this Section shall prevail as to any
Dispute arising out of or relating to (i) this Guaranty, (ii) any other Loan
Document, (iii) any related agreements or instruments, or (iv) the transaction
contemplated herein or therein (including any claim based on or arising from an
alleged personal injury or business tort). In any other situation, if the
resolution of a given Dispute is specifically governed by another provision or
15
agreement for arbitration or dispute resolution, the other provision or
agreement shall prevail with respect to said Dispute.
(e) JURY TRIAL WAIVER IN ARBITRATION. By agreeing to this
Section, the parties irrevocably and voluntarily waive any right they may have
to a trial by jury in respect of any Dispute.
28. WAIVER OF JURY TRIAL. WITHOUT INTENDING IN ANY WAY TO LIMIT THE
PARTIES' AGREEMENT TO ARBITRATE ANY "DISPUTE" (FOR PURPOSES OF THIS SECTION, AS
DEFINED ABOVE) AS SET FORTH IN THIS GUARANTY, TO THE EXTENT ANY "DISPUTE" IS NOT
SUBMITTED TO ARBITRATION OR IS DEEMED BY THE ARBITRATOR OR BY ANY COURT WITH
JURISDICTION TO BE NOT ARBITRABLE OR NOT REQUIRED TO BE ARBITRATED, GUARANTOR
AND ADMINISTRATIVE AGENT, ON BEHALF OF ALL LENDERS, WAIVE TRIAL BY JURY IN
RESPECT OF ANY SUCH "DISPUTE" AND ANY ACTION ON SUCH "DISPUTE." THIS WAIVER IS
KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY GUARANTOR AND ADMINISTRATIVE AGENT,
ON BEHALF OF ALL LENDERS, AND GUARANTOR AND ADMINISTRATIVE AGENT HEREBY
REPRESENT THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY
PERSON OR ENTITY TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY
OR NULLIFY ITS EFFECT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES
ENTERING INTO THE LOAN DOCUMENTS. GUARANTOR AND ADMINISTRATIVE AGENT ARE EACH
HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE
EVIDENCE OF THIS WAIVER OF JURY TRIAL. GUARANTOR FURTHER REPRESENTS AND WARRANTS
THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS GUARANTY AND IN THE MAKING
OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, OR HAS HAD THE OPPORTUNITY TO BE
REPRESENTED BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT
IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
THE LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
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IN WITNESS WHEREOF, Guarantor duly executed this Guaranty under seal as
of the date first written above.
Address of Guarantor: GUARANTOR:
c/o Behringer Harvard Funds BEHRINGER HARVARD 250/290 XXXXXXXXX XX,
00000 Xxxxxx Xxxxxxx, Xxxxx 000 a Texas limited partnership
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, III By: BEHRINGER HARVARD 250/290
XXXXXXXXX XX, LLC, a Texas
limited liability company, its
sole general partner
By: _____________________________
Name: Xxxxxx X. Xxxxxxx, III
Title: Secretary
ADDRESS OF ADMINISTRATIVE AGENT:
Bank of America, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Real Estate Loan Administration
Fax No.: 214/000-0000
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