Exhibit 10.6
Loan No. 502858632
GUARANTY
AGREEMENT
THIS GUARANTY
AGREEMENT (this
“Guaranty” ) is executed as of December
, 2006, by BEHRINGER HARVARD REIT I, INC.,
a Maryland corporation, having an address c/o Behringer Harvard
Funds, 15601 Dallas Parkway, Suite 600, Addison, Texas 75001
(whether one or more collectively referred to as
“Guarantor” ), for the benefit of WACHOVIA
BANK, NATIONAL ASSOCIATION , a banking association chartered
under the laws of the United States of America, having an office at
Wachovia Bank, National Association, Commercial Real Estate
Services, 8739 Research Drive URP 4, NC 1075, Charlotte, North
Carolina 28262 ( “Lender”
).
W I T N E S S E T H:
WHEREAS , pursuant to that certain Promissory Note,
dated of even date herewith, executed by BEHRINGER HARVARD
ELDRIDGE PLACE LP , a Delaware limited partnership (“
Borrower ”), and payable to the order of Lender in the
original principal amount of Seventy-Five Million and No/100
Dollars ($75,000,000) (as the same may hereafter be amended,
restated, renewed, supplemented, replaced, extended or otherwise
modified from time to time, the “ Note ”),
Borrower has become indebted, and may from time to time be further
indebted, to Lender with respect to a loan (the “ Loan
”) which is secured by the lien and security interest of that
certain Mortgage and Security Agreement, dated as of the date
hereof, made by Borrower for the benefit of Lender (as the same may
hereafter be amended, restated, renewed, supplemented, replaced,
extended or otherwise modified from time to time, the “
Security Instrument ”), and is further evidenced by
that certain Loan Agreement, of even date herewith between Borrower
and Lender (as the same may hereinafter be amended, modified,
restated, renewed or replaced the “ Loan Agreement
”) and further evidenced, secured or governed by such other
instruments and documents executed in connection with the Loan
(together with the Note, the Loan Agreement and the Security
Instrument are hereinafter collectively referred to as the “
Loan Documents ”); and
WHEREAS , Lender is not willing to make the Loan, or
otherwise extend credit, to Borrower unless Guarantor
unconditionally guarantees payment and performance to Lender of the
Guaranteed Obligations (as herein defined); and
WHEREAS , Guarantor is the owner of a direct or indirect
interest in Borrower, and Guarantor will directly benefit from
Lender’s making the Loan to Borrower.
NOW, THEREFORE
, as an inducement to Lender to make
the Loan to Borrower, and to extend such additional credit as
Lender may from time to time agree to extend under the Loan
Documents, and for other good and valuable consideration, the
receipt and legal sufficiency of which are hereby acknowledged, the
parties do hereby agree as follows:
ARTICLE I
NATURE AND SCOPE OF
GUARANTY
Section
1.1
GUARANTY OF OBLIGATION . Guarantor hereby irrevocably and
unconditionally guarantees to Lender and its successors and assigns
the payment and performance of the Guaranteed Obligations as and
when the same shall be due and payable, whether by lapse of time,
by acceleration of maturity or otherwise. Guarantor hereby
irrevocably and unconditionally covenants and agrees that it is
liable for the Guaranteed Obligations as a primary
obligor.
Section
1.2
Definition of Guaranteed Obligations .
As used herein, the term
“ Guaranteed Obligations ” shall (i) mean each
of the obligations of Borrower under the Environmental Indemnity,
including without limitation the indemnification provisions
contained therein, and (ii) be deemed to include, and Guarantor
shall also be liable for, and shall indemnify, defend and hold
Lender harmless from and against, any and all Losses (as
hereinafter defined) incurred or suffered by Lender and arising out
of or in connection with the matters listed below:
(a)
the misapplication or misappropriation of Rents;
(b)
the misapplication or misappropriation of Insurance Proceeds or
Awards;
(c)
Borrower’s failure to return or to reimburse Lender for all
Personal Property (other than Personal Property not material to the
operation or value of the affected Individual Property) taken from
the Property by or on behalf of Borrower and not replaced with
Personal Property of the same utility and of the same or greater
value;
(d)
any act of actual waste or arson by Borrower, any principal,
affiliate, general partner or member thereof or by
Guarantor;
(e)
any fees or commissions paid by Borrower to any principal,
affiliate, general partner or member of Borrower or any Guarantor
in violation of the terms of this Guaranty, the other Loan
Documents;
(f)
Borrower’s failure to comply with the provisions of
Section 9.4 of the Security Instrument;
(g)
so long as Borrower is not required to make payments into the Tax
and Insurance Escrow Fund pursuant to Section 7.2 of the
Loan Agreement, Borrower’s failure to pay all Taxes, prior to
delinquency or the imposition of penalties and interest due
thereon, pursuant to the Loan Agreement;
(h)
any fraud, willful misconduct or intentional material
misrepresentation by Borrower, Principal, Guarantor or any of their
respective Affiliates in connection with the Loan; or
(i)
any breach or default of any material provision of Section
4.1.30 of the Loan Agreement (other than breaches of the
requirements set forth in clauses (xii) or (xxiii) of the
definition of Special Purpose Entity).
In addition, the Guaranteed
Obligations shall also include the unpaid balance of the Debt in
the event of: (i) a voluntary breach or default under
Section 5.2.10 of the Loan Agreement, (ii) Borrower or
Principal filing a voluntary petition under the Bankruptcy Code or
any other Federal or state bankruptcy or insolvency law;
(iii) Borrower or Principal filing an answer consenting to or
otherwise acquiescing in or joining in any involuntary petition
filed against it, by any other Person under the Bankruptcy Code or
any other Federal or state bankruptcy or insolvency law, or
soliciting or causing to be solicited petitioning creditors for any
involuntary petition from any Person; (iv) Borrower or
Principal consenting to or acquiescing in or joining in an
application for the appointment of a custodian, receiver, trustee,
or examiner for Borrower, Principal or any portion of the Property;
or (v) Borrower or Principal making an assignment for the
benefit of creditors.
Section
1.3
Nature of Guaranty . This Guaranty is an irrevocable,
absolute, continuing guaranty of payment and performance and not a
guaranty of collection. This Guaranty may not be revoked by
Guarantor and shall continue to be effective with respect to any
Guaranteed Obligations arising or created after any attempted
revocation by Guarantor and after (if Guarantor is a natural
person) Guarantor’s death (in which event this Guaranty shall
be binding upon Guarantor’s estate and Guarantor’s
legal representatives and heirs). The fact that at any time
or from time to time the Guaranteed Obligations may be increased or
reduced shall not release or discharge the obligation of Guarantor
to Lender with respect to the Guaranteed Obligations. This
Guaranty may be enforced by Lender and any subsequent holder of the
Note and shall not be discharged by the assignment or negotiation
of all or part of the Note.
Section
1.4
Guaranteed Obligations Not Reduced by Offset .
The Guaranteed Obligations
and the liabilities and obligations of Guarantor to Lender
hereunder, shall not be reduced, discharged or released because or
by reason of any existing or future offset, claim or defense of
Borrower, or any other party, against Lender or against payment of
the Guaranteed Obligations, whether such offset, claim or defense
arises in connection with the Guaranteed Obligations (or the
transactions creating the Guaranteed Obligations) or
otherwise.
Section
1.5
Payment By Guarantor . If all or any part of the Guaranteed
Obligations shall not be punctually paid when due, whether at
demand, maturity, acceleration or otherwise, Guarantor shall,
immediately upon demand by Lender, and without presentment,
protest, notice of protest, notice of non-payment, notice of
intention to accelerate the maturity, notice of acceleration of the
maturity, or any other notice whatsoever, pay in lawful money of
the United States of America, the amount due on the Guaranteed
Obligations to Lender at Lender’s address as set forth
herein. Such demand(s) may be made at any time coincident
with or after the time for payment of all or part of the Guaranteed
Obligations, and may be made from time to time with respect to the
same or different items of Guaranteed Obligations. Such
demand shall be deemed made, given and received in accordance with
the notice provisions hereof.
Section
1.6
No Duty To Pursue Others . It shall not be necessary for Lender (and
Guarantor hereby waives any rights which Guarantor may have to
require Lender), in order
to enforce the obligations of
Guarantor hereunder, first to (i) institute suit or exhaust
its remedies against Borrower or others liable on the Loan or the
Guaranteed Obligations or any other person, (ii) enforce
Lender’s rights against any collateral which shall ever have
been given to secure the Loan, (iii) enforce Lender’s
rights against any other guarantors of the Guaranteed Obligations,
(iv) join Borrower or any others liable on the Guaranteed
Obligations in any action seeking to enforce this Guaranty,
(v) exhaust any remedies available to Lender against any
collateral which shall ever have been given to secure the Loan, or
(vi) resort to any other means of obtaining payment of the
Guaranteed Obligations. Lender shall not be required to mitigate
damages or take any other action to reduce, collect or enforce the
Guaranteed Obligations.
Section
1.7
Waivers .
Guarantor agrees to the provisions of the Loan Documents, and
hereby waives notice of (i) any loans or advances made by
Lender to Borrower, (ii) acceptance of this Guaranty,
(iii) any amendment or extension of the Note, the Security
Instrument, the Loan Agreement or of any other Loan Documents,
(iv) the execution and delivery by Borrower and Lender of any
other loan or credit agreement or of Borrower’s execution and
delivery of any promissory notes or other documents arising under
the Loan Documents or in connection with the Property, (v) the
occurrence of any breach by Borrower or an Event of Default,
(vi) Lender’s transfer or disposition of the Guaranteed
Obligations, or any part thereof, (vii) sale or foreclosure
(or posting or advertising for sale or foreclosure) of any
collateral for the Guaranteed Obligations, (viii) protest,
proof of non-payment or default by Borrower, or (ix) any other
action at any time taken or omitted by Lender, and, generally, all
demands and notices of every kind in connection with this Guaranty,
the Loan Documents, any documents or agreements evidencing,
securing or relating to any of the Guaranteed Obligations and the
obligations hereby guaranteed.
Section
1.8
Payment of Expenses . In the event that Guarantor should breach
or fail to timely perform any provisions of this Guaranty,
Guarantor shall, immediately upon demand by Lender, pay Lender all
costs and expenses (including court costs and attorneys’
fees) incurred by Lender in the enforcement hereof or the
preservation of Lender’s rights hereunder. The covenant
contained in this Section shall survive the payment and performance
of the Guaranteed Obligations.
Section
1.9
Effect of Bankruptcy . In the event that, pursuant to any
insolvency, bankruptcy, reorganization, receivership or other
debtor relief law, or any judgment, order or decision thereunder,
Lender must rescind or restore any payment, or any part thereof,
received by Lender in satisfaction of the Guaranteed Obligations,
as set forth herein, any prior release or discharge from the terms
of this Guaranty given to Guarantor by Lender shall be without
effect, and this Guaranty shall remain in full force and effect. It
is the intention of Borrower and Guarantor that Guarantor’s
obligations hereunder shall not be discharged except by
Guarantor’s performance of such obligations and then only to
the extent of such performance.
Section
1.10 Waiver of
Subrogation, Reimbursement and Contribution .
Guarantor hereby unconditionally
and irrevocably waives, releases and abrogates any and all rights
it may now or hereafter have under any agreement, at law or in
equity (including, without limitation, any law subrogating the
Guarantor to the rights of Lender), to assert any claim against or
seek contribution, indemnification or any other form of
reimbursement from Borrower or any other party liable for payment
of any or all of the Guaranteed Obligations for any payment
made
by Guarantor under or in connection
with this Guaranty or otherwise; provided, however, that
notwithstanding anything to the contrary contained herein,
Guarantor shall have and be entitled to all (a) all rights of
subrogation otherwise provided by applicable law in respect of any
payment it may make or be obligated to make under this Guaranty and
(b) all claims it would have against Borrower or any other party
and to assert and enforce same, in each case on and after, but at
no time prior to, the date which is 91 days after the date on which
all sums owed to Lender under this Guaranty and the other the Loan
Documents have been paid in full.
Section
1.11
Borrower .
The term “Borrower” as used herein shall include
any new or successor corporation, association, partnership (general
or limited), limited liability company, joint venture, trust or
other individual or organization formed as a result of any merger,
reorganization, sale, transfer, devise, gift or bequest of Borrower
or any interest in Borrower.
ARTICLE II
EVENTS AND CIRCUMSTANCES NOT
REDUCING
OR DISCHARGING GUARANTOR’S OBLIGATIONS
Guarantor hereby consents and agrees
to each of the following, and agrees that Guarantor’s
obligations under this Guaranty shall not be released, diminished,
impaired, reduced or adversely affected by any of the following,
and waives any common law, equitable, statutory or other rights
(including without limitation rights to notice) which Guarantor
might otherwise have as a result of or in connection with any of
the following:
Section
2.1
Modifications . Any renewal, extension, increase,
modification, alteration or rearrangement of all or any part of the
Guaranteed Obligations, the Note, the Security Instrument, the Loan
Agreement, the other Loan Documents, or any other document,
instrument, contract or understanding between Borrower and Lender,
or any other parties, pertaining to the Guaranteed Obligations or
any failure of Lender to notify Guarantor of any such
action.
Section
2.2
Adjustment . Any adjustment, indulgence, forbearance
or compromise that might be granted or given by Lender to Borrower
or any other guarantor.
Section
2.3
Condition of Borrower or Guarantor . The insolvency, bankruptcy, arrangement,
adjustment, composition, liquidation, disability, dissolution or
lack of power of Borrower, Guarantor or any other party at any time
liable for the payment of all or part of the Guaranteed
Obligations; or any dissolution of Borrower or Guarantor, or any
sale, lease or transfer of any or all of the assets of Borrower or
Guarantor, or any changes in the shareholders, partners or members
of Borrower or Guarantor; or any reorganization of Borrower or
Guarantor.
Section
2.4
Invalidity of Guaranteed Obligations .
The invalidity,
illegali
