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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 Obligati
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