UNCONDITIONAL GUARANTY OF PAYMENT
AND PERFORMANCE
FOR AND IN
CONSIDERATION OF the sum of Ten and 00/100 Dollars ($10.00) and
other good and valuable consideration paid or delivered to the
undersigned HINES REAL ESTATE INVESTMENT TRUST, INC., a Maryland
corporation (hereinafter referred to as “Guarantor”),
the receipt and sufficiency whereof are hereby acknowledged by
Guarantor, and for the purpose of seeking to induce KEYBANK
NATIONAL ASSOCIATION, as agent (“Agent”) for itself and
the other lenders (the “Lenders”) which may become
parties to a certain Credit Agreement dated September 9, 2005
(the “Credit Agreement”) to extend credit or otherwise
provide financial accommodations to Hines REIT Properties, L.P.
(hereinafter referred to as “Borrower”), which
extension of credit and provision of financial accommodations will
be to the direct interest, advantage and benefit of Guarantor.
Capitalized terms used herein but not otherwise defined herein
shall have the meanings assigned to such terms in the Credit
Agreement. Guarantor does hereby absolutely, unconditionally and
irrevocably guaranty to Agent the complete payment and performance
of the following Borrower Obligations:
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(a)
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the
full and prompt payment when due, whether by acceleration or
otherwise, either before or after maturity thereof, in accordance
with the terms of the Credit Agreement, of those outstanding Notes
made by Borrower to the order of each Lender in the aggregate
principal amount equal to the then outstanding aggregate principal
amount of the Loans (which amount shall not exceed the Maximum Loan
Amount in the aggregate) together with interest as provided in the
Credit Agreement, together with any renewals, modifications,
consolidations, restatements and extensions thereof; and
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(b)
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the
full and prompt payment and performance of all of the other
Borrower Obligations of Borrower to Agent and the Lenders under the
terms of the Credit Agreement, the Environmental Indemnity, the
Pledge Agreement and each other Credit Document to which Borrower
is a party.
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1.
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Agreement to Pay and Perform; Costs
of Collection . Guarantor does hereby agree that
if any Note is not paid by Borrower in accordance with its terms,
or if any and all sums which are now or may hereafter become due
from Borrower to Agent and/or the Lenders under the Credit
Documents are not paid by Borrower in accordance with their terms,
or if any and all other Borrower Obligations are not performed by
Borrower in accordance with their terms, Guarantor will immediately
make such payments and perform such Borrower Obligations. Guarantor
further agrees to pay Agent and/or the Lenders on demand all costs
and expenses (including court costs and reasonable attorneys’
fees and disbursements) paid or incurred by Agent and/or the
Lenders in endeavoring to collect the Borrower Obligations, to
enforce any of the Borrower Obligations, or any portion thereof, or
to enforce this Guaranty, and until paid to Agent and/or the
Lenders,
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such sums shall bear interest at the
Default Rate unless collection from Guarantor of interest at such
rate would be contrary to applicable law, in which event such sums
shall bear interest at the highest rate which may be collected from
Guarantor under applicable law. Any payment or other performance of
the Borrower Obligations by Guarantor under this Guaranty shall
result in, (i) with respect to any payments made, a
corresponding reduction in the amount of Borrower Obligations, and
(ii) with respect to any performance other than payments made,
Borrower being deemed to have fulfilled such
performance.
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2.
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Rights of Agent and/or the Lenders
to Deal with Collateral, Borrower and Other Persons
. Guarantor hereby
consents and agrees that Agent and/or the Lenders may at any time,
and from time to time, without thereby releasing Guarantor from any
liability hereunder and without notice to or further consent from
Guarantor, either with or without consideration: (i) release
or surrender any Collateral, lien or other security of any kind or
nature whatsoever held by it or by any Person on its behalf or for
its account, securing any of the Borrower Obligations;
(ii) substitute for any Collateral so held by it, other
collateral of any kind; (iii) modify the terms of any Credit
Document except to the extent the consent of Borrower is required
to make any such modifications; (iv) extend or renew the Note
for any period except to the extent the consent of Borrower is
required to make any such modifications; (v) grant releases,
compromises and indulgences with respect to any Credit Document and
to any Persons now or hereafter liable thereunder or hereunder;
(vi) release any other guarantor, surety, endorser or
accommodation party of any Credit Document; or (vii) take or
fail to take any action of any type whatsoever under this Guaranty
or any Credit Document. No such action which Agent and/or the
Lenders shall take or fail to take in connection with any Credit
Document, or any Collateral securing the payment of the Borrower
Obligations to Agent and/or the Lenders or for the performance of
any of the Borrower Obligations or other undertakings of Borrower,
nor any course of dealing with Borrower or any other Person, shall
release Guarantor’s obligations hereunder, affect this
Guaranty in any way or afford Guarantor any recourse against Agent
and/or the Lenders. The provisions of this Guaranty shall extend
and be applicable to all renewals, amendments, extensions,
consolidations, restatements and modifications of any Credit
Document, and any and all references herein to any Credit Document
shall be deemed to include any such renewals, extensions,
amendments, consolidations, restatements or modifications
thereof.
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3.
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No Contest with Agent/Lender;
Subordination . So long as any Borrower
Obligation remains unpaid or undischarged, Guarantor will not, by
paying any sum recoverable hereunder (whether or not demanded by
Agent and/or the Lenders) or by any means or on any other ground,
claim any set-off or counterclaim against Borrower in respect of
any liability of Borrower to Guarantor or, in proceedings under
federal bankruptcy law or insolvency proceedings of any nature,
prove in competition with Agent and/or the Lenders in respect of
any payment hereunder or be entitled to have the benefit of any
counterclaim or proof
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of claim or
dividend or payment by or on behalf of Borrower or the benefit of
any other security for any Borrower Obligation which, now or
hereafter, Agent and/or the Lenders may hold or in which it may
have any share. Guarantor hereby subordinates any and all
indebtedness of Borrower now or hereafter owed to Guarantor to all
of the Borrower Obligations, and agrees with Agent and/or the
Lenders that during the existence of an Event of Default
(a) Guarantor shall not demand or accept any payment from
Borrower on account of such indebtedness, (b) Guarantor shall
not claim any offset or other reduction of Guarantor’s
obligations hereunder because of any such indebtedness, and
(c) Guarantor shall not take any action to obtain any interest
in any of the Collateral because of any such
indebtedness.
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4.
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Waiver of Defenses
. Guarantor hereby
agrees that its obligations hereunder shall not be affected or
impaired by, and hereby waives and agrees not to assert or take
advantage of any defense based on:
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(a)
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any
statute of limitations in any action hereunder or for the
collection, payment or performance of any of the Borrower
Obligations;
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(b)
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the
incapacity or lack of authority of Borrower or any other Person,
the death or disability of Borrower or Guarantor or any other
Person, or the failure of Agent and/or the Lenders to file or
enforce a claim against the estate (either in administration,
bankruptcy or in
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