EXHIBIT 99.6
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GUARANTY OF RECOURSE OBLIGATIONS
made by
Behringer Harvard REIT I, Inc.
as guarantor,
in favor of
CITIGROUP GLOBAL MARKETS REALTY CORP.
Dated as
of January __, 2006
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GUARANTY OF RECOURSE OBLIGATIONS
This GUARANTY (this "GUARANTY"), dated as of January __, 2006, made
by
BEHRINGER HARVARD REIT I, INC. a Maryland corporation ("BEHRINGER
REIT"), having
an address at Behringer Harvard Holdings, LLC, 15601 Dallas
Parkway, Suite 600,
Addison, Texas 75001, ("GUARANTOR"), in favor of CITIGROUP GLOBAL
MARKETS REALTY
CORP., a New York corporation (together with its successors and
assigns,
hereinafter referred to as "LENDER"), having an address at 388
Greenwich Street,
Floor 11, New York, New York 10013.
R E C I T A L S:
A. Pursuant
to that certain Loan Agreement dated as of the date
hereof (as the same may be amended, modified, supplemented or
replaced from time
to time, the "LOAN AGREEMENT") between Woodcrest Road Associates,
L.P., a
Pennsylvania limited partnership ("BEHRINGER LP") and Woodcrest
Road Urban
Renewal, LLC, a New Jersey limited liability company ("BEHRINGER
LLC")
(Behringer LP and Behringer LLC, individually and collectively, as
the context
requires, such determination to be made by Lender in the manner set
forth in
Section 1.4 of the Loan Agreement, the "BORROWER") and Lender,
Lender has agreed
to make a loan (the "LOAN") to Borrower in the maximum principal
amount of up to
$50,400,000, subject to the terms and conditions of the Loan
Agreement;
B. As a
condition to Lender's making the Loan, Lender is requiring
that Guarantor execute and deliver to Lender this Guaranty; and
C. Guarantor
hereby acknowledges that it will materially benefit
from Lender's agreeing to make the Loan;
NOW, THEREFORE, in consideration of the premises set forth herein
and as
an inducement for and in consideration of the agreement of Lender
to make the
Loan pursuant to the Loan Agreement, Guarantor hereby agrees,
covenants,
represents and warrants to Lender as follows:
1.
DEFINITIONS.
(a)
All capitalized terms used and not defined herein shall
have the respective meanings given such terms in the Loan
Agreement.
(b)
The term "GUARANTEED OBLIGATIONS" means (i) subject to
the provisions of Sections 17 below, Borrower's Recourse
Liabilities (the
"RECOURSE LIABILITY GUARANTEED OBLIGATIONS"), and (ii) from and
after the date
that any Springing Recourse Event occurs, subject to the provisions
of Sections
17 below, payment of the Guaranteed Amount (and whether accrued
prior to, on or
after such date) (the "SPRINGING RECOURSE GUARANTEED
OBLIGATIONS").
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(c)
The term "GUARANTEED AMOUNT" means the amount for which
Borrower is liable pursuant to Section 10.1(b) of the Loan
Agreement.
2.
GUARANTY.
(a)
Subject to the provisions of Sections 17 below,
Guarantor hereby irrevocably, absolutely and unconditionally
guarantees to
Lender the full, prompt and complete payment when due of the
Guaranteed
Obligations.
(b)
All sums payable to Lender under this Guaranty shall be
payable on demand and without reduction for any offset, claim,
counterclaim or
defense.
(c)
Subject to the provisions of Sections 17 below,
Guarantor hereby agrees to indemnify, defend and save harmless
Lender from and
against any and all costs, losses, liabilities, claims, causes of
action,
expenses and damages, including reasonable attorneys' fees and
disbursements,
which Lender may suffer or which otherwise may arise by reason of
Borrower's
failure to pay any of the Guaranteed Obligations when due,
irrespective of
whether such costs, losses, liabilities, claims, causes of action,
expenses or
damages are incurred by Lender prior or subsequent to (i) Lender's
declaring the
Principal, interest and other sums evidenced or secured by the Loan
Documents to
be due and payable, (ii) the commencement or completion of a
judicial or
non-judicial foreclosure of the Mortgage or (iii) the conveyance of
all or any
portion of the Property by deed-in-lieu of foreclosure.
(d)
Guarantor agrees that no portion of any sums applied
(other than sums received from Guarantor in full or partial
satisfaction of its
obligations hereunder), from time to time, in reduction of the Debt
shall be
deemed to have been applied in reduction of the Guaranteed
Obligations until
such time as the Debt has been paid in full, or Guarantor shall
have made the
full payment required hereunder, it being the intention hereof that
the
Guaranteed Obligations shall be the last portion of the Debt to be
deemed
satisfied.
3.
REPRESENTATIONS AND WARRANTIES. Guarantor hereby represents and
warrants (as to itself) to Lender as follows (which representations
and
warranties shall be given as of the date hereof and shall survive
the execution
and delivery of this Guaranty):
(a)
ORGANIZATION, AUTHORITY AND EXECUTION. Behringer REIT is
a corporation duly organized, validly existing and in good standing
under the
laws of the State of Maryland, and has all necessary power and
authority to own
its properties and to conduct its business as presently conducted
or proposed to
be conducted and to enter into and perform this Guaranty and all
other
agreements and instruments to be executed by it in connection
herewith. This
Guaranty has been duly executed and delivered by Guarantor.
(b)
ENFORCEABILITY. This Guaranty constitutes a legal, valid
and binding obligation of Guarantor, enforceable against Guarantor
in accordance
with its terms, except as enforceability may be limited by
applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the
enforcement of creditors' rights generally.
(c)
NO VIOLATION. The execution, delivery and performance by
Guarantor of its obligations under this Guaranty has been duly
authorized by all
necessary
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action, and do not and will not violate any law, regulation, order,
writ,
injunction or decree of any court or governmental body, agency or
other
instrumentality applicable to a Guarantor, or result in a breach of
any of the
terms, conditions or provisions of, or constitute a default under,
or result in
the creation or imposition of any mortgage, lien, charge or
encumbrance of any
nature whatsoever upon any of the assets of a Guarantor pursuant to
the terms of
a Guarantor's articles of organization, or any mortgage, indenture,
agreement or
instrument to which a Guarantor is a party or by which it or any of
its
properties is bound. No Guarantor is in default under any other
guaranty which
it has provided to Lender.
(d)
NO LITIGATION. There are no actions, suits or
proceedings at law or at equity, pending or, to Guarantor's best
knowledge,
threatened against or affecting a Guarantor or which involve or
might involve
the validity or enforceability of this Guaranty or which might
materially
adversely affect the financial condition of a Guarantor or the
ability of a
Guarantor to perform any of its obligations under this Guaranty. No
Guarantor is
in default beyond any applicable grace or cure period with respect
to any order,
writ, injunction, decree or demand of any Governmental Authority
which might
materially adversely affect the financial condition of Guarantor or
the ability
of Guarantor to perform any of its obligations under this
Guaranty.
(e)
CONSENTS. All consents, approvals, orders or
authorizations of, or registrations, declarations or filings with,
all
Governmental Authorities (collectively, the "CONSENTS") that are
required in
connection with the valid execution, delivery and performance by
Guarantor of
this Guaranty have been obtained and Guarantor agrees that all
Consents required
in connection with the carrying out or performance of any of
Guarantor's
obligations under this Guaranty will be obtained when required.
(f)
FINANCIAL STATEMENTS AND OTHER INFORMATION. All
financial statements of Guarantor heretofore delivered to Lender
are true and
correct in all material respects and fairly present the financial
condition of
Guarantor as of the respective dates thereof, and no materially
adverse change
has occurred in the financial conditions reflected therein since
the respective
dates thereof. None of the aforesaid financial statements or any
certificate or
statement furnished to Lender by or on behalf of Guarantor in
connection with
the transactions contemplated hereby, and none of the
representations and
warranties in this Guaranty contains any untrue statement of a
material fact or
omits to state a material fact necessary in order to make the
statements
contained therein or herein not misleading. No Guarantor is
insolvent within the
meaning of the United States Bankruptcy Code or any other
applicable law, code
or regulation and the execution, delivery and performance of this
Guaranty will
not render any Guarantor insolvent.
(g)
CONSIDERATION. Guarantor is the owner, directly or
indirectly, of legal and beneficial equity interests in Borrower,
and as such
will materially benefit from the making of the Loan.
4. FINANCIAL
STATEMENTS. BEHRINGER REIT shall deliver to Lender,
(a) within 120 days after the end of each fiscal year of BEHRINGER
REIT, a
complete copy of BEHRINGER REIT's annual financial statements, (b)
if requested
by Lender, within 60 days after the end of each fiscal quarter of
BEHRINGER
REIT, financial statements (including a balance sheet as of the end
of such
fiscal quarter and a statement of income and expense for such
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fiscal quarter) certified by BEHRINGER REIT and in form, content,
level of
detail and scope reasonably satisfactory to Lender, and (c) 20 days
after
request by Lender, such other financial information with respect to
BEHRINGER
REIT as Lender may reasonably request.
5.
UNCONDITIONAL CHARACTER OF OBLIGATIONS OF GUARANTOR.
(a)
The obligations of Guarantor hereunder shall be
irrevocable, absolute and unconditional, irrespective of the
validity,
regularity or enforceability, in whole or in part, of the other
Loan Documents
or any provision thereof, or the absence of any action to enforce
the same, any
waiver or consent with respect to any provision thereof, the
recovery of any
judgment against Borrower, a Guarantor or any other Person or any
action to
enforce the same, any failure or delay in the enforcement of the
obligations of
Borrower under the other Loan Documents or Guarantor under this
Guaranty, or any
setoff, counterclaim, and irrespective of any other circumstances
which might
otherwise limit recourse against a Guarantor by Lender or
constitute a legal or
equitable discharge or defense of a guarantor or surety. Lender may
enforce the
obligations of Guarantor under this Guaranty by a proceeding at
law, in equity
or otherwise, independent of any loan foreclosure or similar
proceeding or any
deficiency action against Borro
