Exhibit 10.3
GUARANTY
AGREEMENT
This GUARANTY
AGREEMENT (this “ Guaranty ”) is made as of
the day of
September, 2007, by BEHRINGER HARVARD SHORT-TERM OPPORTUNITY FUND I
LP, a Texas limited partnership (singly or collectively, “
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 each lender from time
to time made a party to the Loan Agreement (collectively, the
“ Lenders ”).
PRELIMINARY
STATEMENTS
Administrative
Agent, the Lenders, and Behringer Harvard Mockingbird Commons, LLC,
a Delaware limited liability company (“ Borrower
”), have entered into, are entering into concurrently
herewith, or contemplate entering into, that certain Loan Agreement
dated 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 “ Loan Agreement
”), which Loan Agreement sets forth the terms and conditions
of a loan (the “ Loan ”) to Borrower for the
refinance and additional funds for an existing hotel currently
known as the “Hotel Palomar” located in Dallas, Texas,
as more particularly described in the Loan Agreement and identified
therein as the Land. The Loan is secured in part by the Deed
of Trust as defined in the Loan Agreement (herein called, as it may
hereafter be modified, supplemented, restated, extended or renewed
and in effect from time to time, the “ Deed of Trust
”.
A condition
precedent to Lenders’ obligation to make the Loan to Borrower
is Guarantor’s execution and delivery to Lenders of this
Guaranty.
The Loan is, or
will be, evidenced by that certain Deed of Trust Note of even date
with the Loan Agreement, executed by Borrower and payable to the
order of Bank of America, N.A. in the principal face amount of
$42,000,000.00 (such note, as it may hereafter be renewed,
extended, supplemented, increased or modified and in effect from
time to time, and all other notes given in substitution therefor in
accordance with the Loan Agreement, or in modification, renewal, or
extension thereof, in whole or in part, is herein called the
“ Note ”).
Borrower and
Lenders may from time to time enter into one or more “
Swap Transactions ” as defined in the Deed of
Trust.
Any capitalized
term used and not defined in this Guaranty shall have the meaning
given to such term in the Loan Agreement. This Guaranty is
one of the Loan Documents described in the Loan
Agreement.
STATEMENT OF
AGREEMENTS
For good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and as a material inducement to Administrative
Agent and the other Lenders to extend credit to Borrower, Guarantor
hereby guarantees to Administrative Agent and the other Lenders the
prompt and full payment and performance of the indebtedness and
obligations
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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 the
Note, the Deed of Trust, 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 the “ Indebtedness
”). This Guaranty covers only the Guaranteed
Obligations and Guarantor shall not be liable for any indebtedness
other than the Guaranteed Obligations. The guaranty of
Guarantor as set forth in this Section 1 is a continuing
guaranty of payment and not a guaranty of collection.
Notwithstanding any contrary provision, if (but only if) all of the
Conditions to Liability Reduction (as defined below) are satisfied,
Guarantor’s liability shall be reduced to twenty-five percent
(25%) of the payment of principal. Administrative
Agent’s and other Lenders’ agreement to the foregoing
limitations on Guarantor’s liability shall in no way be
deemed to limit or restrict Administrative Agent’s and other
Lenders’ right to apply any sums paid by Guarantor to any
portion of the Loan. Upon the written request of Guarantor,
Administrative Agent will advise Guarantor in writing as to whether
the Conditions to Liability Reduction have been satisfied.
The provisions of this Section 1 do not limit, reduce or
affect Guarantor’s obligations with respect to the guaranty
of payment in this Section 1 (other than the amount of
principal payment) or the guaranty of performance in Section
2 below. Guarantor’s liability under this Guaranty
shall not be reduced or otherwise affected, except to the extent
set forth in the next sentence, by any amount applied against the
Indebtedness as a result of the foreclosure or other realization
upon any of the security for the Note. To the extent Lenders
receive any payments under the Note or any proceeds from
foreclosure of or other realization upon of the security for the
Note, such payments shall be applied to that portion of the
Obligations for which Guarantor has no personal liability for
payment, and then (and only after payment in full of the portion of
the Obligations for which Guarantor has no personal liability for
payment) be applied against the portion of the Obligations for
whose payment Guarantor is liable hereunder.
Unless otherwise
defined herein, the following capitalized terms when used in this
Guaranty shall have the respective meanings set forth
below:
“ Administrative Agent’s NOI
Confirmation Letter ” means a letter from Administrative
Agent to Borrower confirming that the required NOI performance
levels have been obtained.
“ Conditions to Liability
Reduction ” means that all of the following are true: (i)
no event has occurred and is continuing which would constitute a
Default or a Potential Default, (ii) Borrower shall have paid off
the loan with Texans Commercial Capital, LLC
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secured, as of the date hereof, by the adjacent
residential condominium project (the “ Residential
Project ”) and there shall be no other liens on
Borrower’s interest in the Residential Project, securing
obligations for borrowed money (but excluding the Residential Units
subject to the Deed of Trust), and (iii) Administrative
Agent’s NOI Confirmation Letter confirms that the NOI for the
immediately preceding twelve calendar months shall equal or exceed
140% of the Target Monthly Amortization for the immediately
preceding twelve calendar months.
“ Deemed Principal Balance ”
shall have the meaning given such term in the Loan
Agreement.
“ NOI ” shall have the
meaning given to such term in the Loan Agreement.
“ Target Monthly Amortization
” shall have the meaning given to such term in the Loan
Agreement.
2.
Guaranty of Performance . Guarantor additionally
hereby unconditionally and irrevocably guarantees to Administrative
Agent and the other Lenders the timely performance of all other
obligations of Borrower under all of the Loan Documents, including,
without limiting the generality of the foregoing, that Borrower
will duly and punctually perform and observe all other terms,
covenants, and conditions of the Note, the Deed of Trust, the Loan
Agreement or any other Loan Document, or any Swap Transaction
whether according to the present terms thereof, at any earlier or
accelerated date or dates as provided therein, or pursuant to any
extension of time or to any change or changes in the terms,
covenants, or conditions thereof now or hereafter made or
granted. The obligations and liability of Guarantor under
this Section 2 shall not be limited or restricted by the
existence of (or any terms of) the guaranty of payment under
Section 1 .
3.
Primary Liability of
Guarantor .
(a)
This Guaranty is an absolute, irrevocable and unconditional
guaranty of payment and performance. Guarantor shall be
liable for the payment and performance 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 to which Guarantor may otherwise have been
entitled under any suretyship laws in effect from time to time,
including any right or privilege, 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 in the event of (i) default by
Borrower in payment or performance of the Guaranteed Obligations,
or any part thereof, when such indebtedness or performance becomes
due, either by its terms or as the result of the exercise of any
power to accelerate; (ii) the failure of Guarantor to perform
completely and satisfactorily the covenants, terms and conditions
of any of the Guaranteed Obligations; (iii) the death,
incompetency, dissolution or insolvency of Guarantor; (iv) the
inability of Guarantor to pay debts as they mature; (v) an
assignment by Guarantor for the benefit of creditors; (vi) the
institution of any proceeding by or against Guarantor in bankruptcy
or for a reorganization or an arrangement with
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creditors, or for the
appointment of a receiver, trustee or custodian for any of them or
for any of their respective properties; (vii) the determination by
Administrative Agent in good faith that a material adverse change
has occurred in the financial condition of Guarantor; (viii) the
entry of a judgment against Guarantor; (ix) a writ or order of
attachment, levy or garnishment is issued against Guarantor; (x)
the falsity in any material respect of, or any material omission
in, any representation made to Administrative Agent or the other
Lenders by Guarantor; (xi) the failure of Guarantor to comply with
the financial covenants contained in Section 18(c) hereof;
and (xii) any transfer of assets of any Guarantor, without the
Administrative Agent’s prior consent (except for transfers of
assets for estate planning purposes valued at less than $50,000 per
year per Guarantor, customary political and charitable
contributions, and transfers for which the Guarantor receives
consideration substantially equivalent to the fair market value of
the transferred asset) (individually and collectively an “
Event of Default ”); then upon the occurrence 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 or of such obligation to perform, all such
notices being hereby waived by Guarantor, pay the amount due to
Administrative Agent or perform or observe the agreement, covenant,
term or condition, 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, all attorneys’ fees
and expenses, investigation costs, court costs, and any and all
other costs and expenses incurred by Administrative Agent and the
Lenders in connection with the collection and enforcement of the
Note 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 or performance by Guarantor, first to institute suit
or pursue or exhaust any rights or remedies against Borrower or
others liable on such indebtedness or for such performance, or to
enforce any rights against any security that shall ever have been
given to secure such indebtedness or performance, or to join
Borrower or any others liable for the payment or performance 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
or performance of the Guaranteed Obligations; provided, however,
that nothing herein contained shall prevent Administrative Agent or
the other Lenders from suing on the Note or foreclosing the Deed of
Trust 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 Note and Deed of Trust, 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 the Property
or other collateral given for the Indebtedness or any part thereof,
whether by foreclosure or otherwise, Administrative Agent may at
its discretion purchase all or any part of the Property or
collateral so sold or offered for sale for its own account and may,
in payment of
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the amount bid
therefor, deduct such amount from the balance due it pursuant to
the terms of the Note and Deed of Trust.
(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 and/or performance. If Administrative Agent, on
behalf of the Lenders, elects to demand performance, it shall at
all times thereafter have the right to demand payment until all of
the Guaranteed Obligations have been paid and performed in
full. If Administrative Agent, on behalf of the Lenders,
elects to demand payment, it shall at all times thereafter have the
right to demand performance until all of the Guaranteed Obligations
have been paid and performed in full.
4.
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 or
performance of any or all of the Guaranteed Obligations;
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(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 or
performance of any or all of the Guaranteed Obligations;
(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 performance 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
other Lenders, to Borrower, Guarantor, and/or any other Person at
any time liable for the payment or performance 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
Lender and Borrower, it being understood that unless otherwise
expressly provided for in this Guaranty, 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.
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(xi)
if for any reason any Lender is required to refund any payment by
Borrower to any other party liable for the payment or performance
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 the Property, preserve the value of the Property 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 any other Person, whether or
not arising in connection with this Guaranty, the Note, the Loan
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 vires , 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 or performance 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 attorneys’ fees, costs and expenses paid or incurred
by 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 performed, 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
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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 the longer
of (i) the period after which any performance of obligations under
the Loan Agreement shall accrue, or (ii) a period of one year from
the date the Guaranteed Obligations are paid and performed 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 the Note, the Loan Agreement, or any other Loan
Document that constitutes any of the Guaranteed Obligations is
stayed or 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.
5.
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 (other than trade payables or other customary expenses
incurred in the ordinary course of business) until the Guaranteed
Obligations have been fully and finally paid and
performed;
(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 and performed. If,
notwithstanding the foregoing provisions, Guarantor should receive
any payment, claim or distribution that is prohibited as provided
above in this Section 5 , 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
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and perfect its
interest and to permit or facilitate exercise of its rights under
this Section 5 , 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 that the indebtedness
evidenced thereby is subordinated under and is subject to the terms
of this Guaranty.
6.
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.
7.
Lenders’ Assigns
. This Guaranty is for the benefit of Administrative Agent
and the
