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Exhibit 10.6
Loan No. 10032921
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this " Guaranty ") is executed
as of November 30, 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 KEYBANK NATIONAL ASSOCIATION , a
national association, having an office at 911 Main Street, Suite
1500, Kansas City, MO 64105 (together with its successors and/or
assignors " Lender ").
W I T N E S S E T H:
WHEREAS , pursuant to that certain Promissory Note, dated the
date hereof, executed by BEHRINGER HARVARD 945 EAST PACES FERRY
ROAD, LLC , a Delaware limited liability company ("
Borrower "), and payable to the order of Lender in the
original principal amount of EIGHTY-TWO MILLION and No/100 DOLLARS
($82,000,000.00) (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 Fee and Leasehold
Deed to Secure Debt 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, dated as of the date hereof, 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 1.01
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 1.02
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)
any fraud, willful misconduct or intentional material
misrepresentation by Borrower, Principal, Guarantor or any of their
respective Affiliates in connection with the Loan; or
(h)
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).
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(iii) In
addition, the Guaranteed Obligations shall also include the unpaid
balance of the Debt in the event of: (a) a voluntary breach or
default under Section 5.2.10 of the Loan Agreement, (b) Borrower or
Principal filing a voluntary petition under the Bankruptcy Code or
any other Federal or state bankruptcy or insolvency law; (c)
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; (d) 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 (e) Borrower or
Principal making an assignment for the benefit of
creditors.
Section 1.03
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 1.04
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 1.05
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.
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Section
1.06 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 1.07
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 1.08
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 1.09
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.
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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 (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 2.01
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 2.02
Adjustment . Any adjustment, indulgence,
forbearance or compromise that might be granted or given by Lender
to Borrower or any other guarantor.
Section 2.03
Condition of Borrower or Guarantor . The
insolvency, bankruptcy, arrangement, adjustment, composition,
liquidation, disability, dissolution or
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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 2.04
Invalidity of Guaranteed Obligations . The
invalidity, illegality or unenforceability of all or any part of
the Guaranteed Obligations, or any document or agreement executed
in connection with the Guaranteed Obligations, for any reason
whatsoever, including without limitation the fact that (i) the
Guaranteed Obligations, or any part thereof, e
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