|
EXHIBIT 99.4
================================================================================
GUARANTY OF RECOURSE OBLIGATIONS
made by
Behringer Harvard REIT I, Inc.
as guarantor,
in favor of
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
Dated as of April 21, 2005
<PAGE>
GUARANTY OF RECOURSE OBLIGATIONS
This GUARANTY (this "GUARANTY"), dated as of April 21, 2005,
made by
BEHRINGER HARVARD REIT I, INC., a Maryland corporation, having
an address at
15601 Dallas Parkway, Suite 600, Addison, Texas 75001
("GUARANTOR"), in favor of
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., a Delaware
corporation (together
with its successors and assigns, hereinafter referred to as
"LENDER"), having an
address at 600 Steamboat Road, Greenwich, Connecticut 06830.
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 BEHRINGER HARVARD UTAH
AVENUE LP
("BORROWER") and Lender, Lender has agreed to make a loan (the
"LOAN") to
Borrower in the principal amount of $20,000,000, 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) Borrower's
Recourse Liabilities and (ii) from and after the date that any
Springing
Recourse Event occurs, payment of all the Debt as and when the
same is due in
accordance with the Loan Documents (and whether accrued prior
to, on or after
such date).
2. GUARANTY.
(a) Guarantor hereby irrevocably, absolutely and
unconditionally guarantees to Lender the full, prompt and
complete payment when
due of the Guaranteed Obligations.
<PAGE>
(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) 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 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. Guarantor 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 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 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 Guarantor pursuant
to the terms of
Guarantor's articles of organization, or any mortgage,
indenture, agreement or
instrument to which Guarantor is a party or by which it or any
of its properties
is bound. Guarantor is not in default under any other guaranty
which it has
provided to Lender.
3
<PAGE>
(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 Guarantor or which involve or
might involve the
validity or enforceability of this Guaranty or which might
materially adversely
affect the financial condition of Guarantor or the ability of
Guarantor to
perform any of its obligations under this Guaranty. Guarantor is
not 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. Guarantor is not
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 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. Guarantor shall deliver to Lender,
(a)
within 120 days after the end of each fiscal year of Guarantor,
a complete copy
of Guarantor's annual financial statements, (b) if requested by
Lender, within
60 days after the end of each fiscal quarter of Guarantor,
financial statements
(including a balance sheet as of the end of such fiscal quarter
and a statement
of income and expense for such fiscal quarter) certified by
Guarantor 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 Guarantor 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
4
<PAGE>
enforce the same, any waiver or consent with respect to any
provision thereof,
the recovery of any judgment against Borrower, 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
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 Borrower
or any other
Person at any time, either before or after an action against the
Property or any
part
| 
