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LIMITED RECOURSE GUARANTY

Guarantee Agreement

LIMITED RECOURSE GUARANTY | Document Parties: BEHRINGER HARVARD OPPORTUNITY REIT I, INC. | Cypress Equities LLC | iStar Financial Inc | Royal Island Bahamas Ltd You are currently viewing:
This Guarantee Agreement involves

BEHRINGER HARVARD OPPORTUNITY REIT I, INC. | Cypress Equities LLC | iStar Financial Inc | Royal Island Bahamas Ltd

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Title: LIMITED RECOURSE GUARANTY
Governing Law: Texas     Date: 12/28/2007

LIMITED RECOURSE GUARANTY, Parties: behringer harvard opportunity reit i  inc. , cypress equities llc , istar financial inc , royal island bahamas ltd
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EXHIBIT 10.5

 

LIMITED RECOURSE GUARANTY

 

                                THIS LIMITED RECOURSE GUARANTY (this “ Guaranty ”), made as of December 20, 2007, by CYPRESS EQUITIES I, LP, a Texas limited partnership, having an address at 15601 Dallas Parkway, Suite 400, Addison, Texas 75001, Attention:  Rick Bower (“ Guarantor ”) in favor of BEHRINGER HARVARD RI LENDER, LLC, a Delaware limited liability company (“ Behringer ”).

 

WITNESSETH:

 

 

WHEREAS, Royal Island Bahamas Ltd., a Bahamian company (“ RIBL ”), Royal Island Golf Club Bahamas Ltd., a

Bahamian company, and RIBL US Borrower LLC, a Delaware limited liability company (collectively, “ Borrower ”) have entered into that certain Credit Agreement, dated as of December 20, 2007 (as amended, amended and restated, extended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), by and among, Borrower, the Lenders from time to time party thereto, and iStar Financial Inc., a Maryland corporation, as agent for the Lenders from time to time party thereto.  Except as otherwise defined herein, capitalized terms used but not defined herein have the meanings given such terms in the Credit Agreement;

 

WHEREAS, the Loans are secured by, among other things, the RIBL’s interest in the Real Property Collateral as evidenced by that certain Debenture dated of even date herewith, executed in connection with the Credit Agreement (the “ Mortgage ”);

 

WHEREAS, Guarantor will derive significant financial benefits from the making of the Loan;

 

WHEREAS, as a condition precedent to the making of the Loans, Guarantor has agreed to deliver to Behringer this Guaranty; and

 

WHEREAS, Behringer has declined to be one of the Lenders unless this Guaranty is duly executed by Guarantor and delivered to Behringer.

 

NOW, THEREFORE, in consideration for, and as an inducement to, Behringer being one of the Lenders, and for Ten Dollars ($10) and other good and valuable consideration the legal sufficiency of which and receipt thereof are hereby acknowledged, and notwithstanding any provision to the contrary contained in the Loan Documents, including without limitation, any “non-recourse” provision, Behringer and Guarantor do hereby agree as follows:

 

1.             Guarantor, on behalf of itself and its successors and assigns (collectively, “ Successors ”) does hereby absolutely, unconditionally, irrevocably and personally:

 

(i) guaranty to Behringer the full and punctual payment of the “Guaranteed Amount” (as hereinafter defined) to Lender by Guarantor upon the maturity of the Loan or upon any earlier acceleration of the Loan.  For purposes herein, “ Guaranteed Amount ” shall mean, collectively, (a) fifty percent (50.0%) of the principal amount funded under

 

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Tranche B, less any principal payments made on Tranche B, together with (b) all accrued and unpaid interest on Tranche B, together with (c) the sum of all Development Fees (as defined in the Services Agreement) previously paid to Guarantor under that certain Development Services Agreement, between RIBL and Guarantor, dated May 2, 2007 (the “ Services Agreement ”); and

 

(ii) agrees to reimburse Behringer for, and hold Behringer harmless from and against, any and all costs and expenses (including reasonable attorneys’ fees) incurred, suffered or sustained by Behringer and/or its successors and assigns to enforce this Guaranty not later than ten (10) days following Guarantor’s receipt of a Payment Demand (defined below) (the obligations of Guarantor under clause (i) and this clause (ii) being referred to hereinafter, collectively, as “ Guarantor’s Obligation ”).
 

Any demand for payment under this Guaranty (a “ Payment Demand ”) shall be in writing, shall specify the amount of the Guarantor’s Obligation as of the date of the Payment Demand, and shall provide in reasonable detail the calculation of the amount of the Guarantor’s Obligation.  Upon payment in full of the Guarantor’s Obligation within ten (10) days following Guarantor’s receipt of the Payment Demand, Guarantor shall have no further liability under this Guaranty.

 

2.             This is an irrevocable, absolute, continuing guaranty of payment and performance.  It is agreed that the obligations of Guarantor hereunder shall be primary and this Guaranty shall be enforceable against Guarantor and its Successors without the necessity for any suit or proceeding of any kind or nature whatsoever brought by Behringer against Borrower or its successors or assigns or any other party under the Credit Agreement or against any security for the payment of Guarantor’s Obligation and without the necessity of any notice of non-payment or non-observance or of any notice of acceptance of this Guaranty or of any notice of demand to which Guarantor might otherwise be entitled hereunder (including, without limitation, diligence, presentment, notice of maturity, extension of time, protest, notice of dishonor or default, change in nature or form of Guarantor’s Obligation, acceptance of further security, release of further security, imposition or agreement arrived at as to the amount of or the terms of Guarantor’s Obligation), all of which Guarantor hereby expressly waives.  Guarantor hereby expressly agrees that the validity of this Guaranty and the obligations of Guarantor hereunder shall in no way be terminated, affected, diminished, modified or impaired by reason of the assertion of or the failure to assert by Behringer, Agent or Lender against Borrower, or its successors or assigns, any of the rights or remedies reserved to Behringer, Agent or Lender pursuant to the provisions of the Credit Agreement, the Tranche B Note, the Mortgage or any other Loan Documents.

 

3.             Guarantor waives, and covenants and agrees that it will not at any time insist upon, plead or in any manner whatsoever claim or take the benefit or advantage of, any and all appraisal, valuation, stay, extension, marshaling-of-assets or redemption laws, or right of homestead or exemption, whether now or at any time hereafter in force, that may delay, prevent or otherwise affect the performance by Guarantor of its obligations under, or the enforcement by Behringer of, this Guaranty.  Guarantor further covenants and agrees not to set up or claim any defense, counterclaim, cross-claim, offset, set-off, right of recoupment, or other objection of any kind to any action, suit or proceeding in law, equity or otherwise, or to any demand or claim that

 

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may be instituted or made by Behringer hereunder other than the defense of the actual timely performance of Guarantor’s Obligations hereunder.  Guarantor represents, warrants and agrees that, as of the date hereof, its obligations under this Guaranty are not subject to any counterclaims, cross-claims, rights of recoupment, offsets or affirmative or other defenses of any kind against Behringer.

 

4.             Guarantor agrees that any notice or directive given at any time by Guarantor to Behringer that is inconsistent with any waiver contained in this Guaranty shall be void and may be ignored by Behringer, and, in addition, may not be pleaded or introduced as evidence in any litigation relating to this Guaranty for the reason that such pleading or introduction would be at variance with the written terms of this Guaranty, unless Behringer has specifically agreed otherwise in a writing, signed by a duly authorized officer.  Guarantor specifically acknowledges and agrees that the foregoing waivers are of the essence of the Loan transaction and that, but for this Guaranty and such waivers, Behringer would not make the Loan.

 

5.             This Guaranty shall be a continuing guaranty for so long as the Obligations remain outstanding and except for modifications, waivers and releases of liabilities of Guarantor hereunder expressly granted in a written instrument which is in accordance with Section 22 hereof, the liability of Guarantor hereunder shall in no way be terminated, affected, modified, impaired or diminished (to the extent permitted by law) by reason of the happening, from time to time, of any of the following, although without notice or the further consent of Guarantor:

 

(a)           any assignment, amendment, modification or waiver of or change in any of the terms, covenants, conditions or provisions of the Credit Agreement, the Note, the Mortgage or any of the other Loan Documents or the invalidity or unenforceability of any of the foregoing; or

 

(b)           any extension of time that may be granted by Behringer, Guarantor or the Successors; or

 

(c)           any action that Behringer, Agent, Lenders, or Guarantor may take or fail to take under or in respect of any of the Loan Documents or by reason of any waiver of, or failure to enforce any of the rights, remedies, powers or privileges available to Behringer under this Guaranty or available to Behringer, Agent or Lenders at law, equity or otherwise, or any action on the part of Behringer, Agent or Lenders granting indulgence or extension in any form whatsoever; or

 

(d)           any dealing, transaction, matter or thing occurring between Behringer, Agent, Lenders, Guarantor or the Successors; or

 

(e)           any sale, exchange, release, or other disposition of any property pledged, mortgaged or conveyed, or any property in which Behringer, Agent or Lenders have been granted a lien or security interest to secure any indebtedness of Guarantor to Behringer,

 

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Agent or Lenders pursuant to the Credit Agreement; or

 

(f)            any release of any person or entity who may be liable in any manner for the payment and collection of any amounts owed by Guarantor to Behringer, Agent or Lenders; or

 

(g)           any Event of Default, whether or not Behringer, Agent or Lenders have exercised any of its rights and remedies as set forth in the Credit Agreement or the Mortgage upon the happening of any such Event of Default; or

 

(h)           Guarantor’s voluntary or involuntary liquidation, dissolution, sale of all or substantially all of its assets and liabilities, appointment of a trustee, receiver, liquidator, sequestrator or conservator for all or any part of Guarantor’s assets, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment, or the commencement of other similar proceedings affecting Guarantor or any of the assets of it; or

 

(i)            any change in or termination of the ownership interest of Guarantor (whether direct or indirect) in Borrower; or

 

(j)            any conveyance of all or any portion of the Real Property Collateral, whether or not pursuant to a foreclosure sale, a deed in lieu of foreclosure, a transfer through bankruptcy, or otherwise.

 

6.             The liability of Guarantor hereunder shall be reinstated and revived, and the rights of the Behringer shall continue, with respect to any amount at any time paid on account of the Gu








 
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