EXHIBIT 10.7
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GUARANTY OF RECOURSE OBLIGATIONS
made by
BEHRINGER HARVARD HOLDINGS, LLC
And
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
as guarantors,
in favor of
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
Dated as of August 9, 2004
GUARANTY OF RECOURSE OBLIGATIONS
This GUARANTY (this "GUARANTY"), dated as of August 9, 2004, made by
BEHRINGER HARVARD HOLDINGS, LLC, a Delaware limited liability company
("BEHRINGER FUNDS"), having an address at Behringer Harvard Holdings, LLC, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, an
individual ("BEHRINGER"), having an address at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, (each, a "GUARANTOR" and collectively,
"GUARANTORS"), 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 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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 COLORADO BUILDING H,
LLC ("BORROWER"), and those borrowers listed on Schedule 1 attached hereto and
Lender, Lender has agreed to make a loan (the "LOAN") to Borrower in the maximum
principal amount of up to $28,000,000, subject to the terms and conditions of
the Loan Agreement;
B. As a condition to Lender's making the Loan, Lender is requiring
that Guarantors execute and deliver to Lender this Guaranty; and
C. Each 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, each 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
BEHRINGER HARVARD COLORADO BUILDING H, LLC and any other Borrower Controlled by
Guarantor is liable pursuant to Section 10.1(b) of the Loan Agreement.
2. GUARANTY.
(a) Subject to the provisions of Sections 17 below, each
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, each
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) Each 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 Guarantors 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. Each 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 Funds
is a limited liability company duly organized, validly existing and in good
standing under the laws of the State of Delaware, 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 each
Guarantor.
(b) ENFORCEABILITY. This Guaranty constitutes a legal, valid
and binding obligation of each Guarantor, enforceable against each 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.
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(c) NO VIOLATION. The execution, delivery and performance by
Guarantors of their 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 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 each 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 such Guarantor or the
ability of such 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 Guarantors of
this Guaranty have been obtained and each Guarantor agrees that all Consents
required in connection with the carrying out or performance of any of such
Guarantor's obligations under this Guaranty will be obtained when required.
(f) FINANCIAL STATEMENTS AND OTHER INFORMATION. All
financial statements of Guarantors heretofore delivered to Lender are true and
correct in all material respects and fairly present the financial condition of
Guarantors 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 a 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. Each 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 FUNDS shall deliver to Lender,
(a) within 120 days after the end of each fiscal year of BEHRINGER FUNDS, a
complete copy
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of BEHRINGER FUNDS' annual financial statements, (b) if requested by Lender,
within 60 days after the end of each fiscal quarter of BEHRINGER FUNDS,
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 BEHRINGER FUNDS 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 FUNDS as Lender may reasonably
request. BEHRINGER shall deliver to Lender, (a) within 120 days after the end of
each fiscal year of BEHRINGER, a certificate indicating BEHRINGER's net worth
(accompanied by backup satisfactory to Lender) and (b) 20 days after request by
Lender, such other financial information with respect to BEHRINGER as Lender may
reasonably request.
5. UNCONDITIONAL CHARACTER OF OBLIGATIONS OF GUARANTORS.
(a) The obligations of Guarantors 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 Guarantors 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 any 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 thereof,
Borrower or any other Person. THIS GUARANTY IS A GUARANTY OF PAYMENT AND
PERFORMANCE AND NOT MERELY A GUARANTY OF COLLECTION. Each Guarantor waives
diligence, notice of acceptance of this Guaranty, filing of claims with any
court, any proceeding to enforce any provision of any other Loan Document,
against such Guarantor, Borrower or any other Person, any right to require a
proceeding first against Borrower or any other Person, or to exhaust any
security (including, without limitation, the Property) for the performance of
the Guaranteed Obligations or any other obligations of Borrower or any other
Person, or any protest, presentment, notice of default or other notice or demand
whatsoever (except to the extent expressly provided to the contrary in this
Guaranty).
(b) The obligations of Guarantors under this Guaranty, and
the rights of Lender to enforce the same by proceedings, whether by action at
law, suit in equity or otherwise, shall not be in any way affected by any of the
following:
(i) any insolvency, bankruptcy, liquidation,
reorganization, readjustment, composition, dissolution, receivership,
conservatorship, winding up or other similar proceeding involving or
affecting Borrower, the Property or any part thereof, a Guarantor or any
other Person;
(ii) any failure by Lender or any other Person,
whether or not without fault on its part, to perform or comply with any
of the terms of the Loan
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Agreement, or any other Loan Documents, or any document or instrument
relating thereto;
(iii) the sale, transfer or conveyance of the Property
or any interest therein to any Person, whether now or hereafter having
or acquiring an interest in the Property or any interest therein and
whether or not pursuant to any foreclosure, trustee sale or similar
proceeding against Borrower or the Property or any interest therein;
(iv) the conveyance to Lender, any Affiliate of
Lender or Lender's nominee of the Property or any interest therein by a
deed-in-lieu of foreclosure;
(v) the release of Borrower or any other Person from
the performance or observance of any of the agreements, covenants, terms
or conditions contained in any of the Loan Documents by operation of law
or otherwise;
(vi) the release in whole or in part of any
collateral for any or all Guaranteed Obligations or for the Loan or any
portion thereof; or
(vii) the transfer to and assumption by any Person of
any tenancy in common interest in the Property pursuant to Section
5.26.2 of the Loan Agreement (whether prior to, contemporaneous herewith
or subsequent hereto), and the execution and delivery of any other
guaranty of recourse obligations by any other guarantor in accordance
with the terms thereof.
(c) Except as otherwise specifically provided in this
Guaranty, each Guarantor hereby expressly and irrevocably waives all defenses in
an action brought by Lender to enforce this Guaranty based on claims of waiver,
release, surrender, alteration or compromise and all setoffs, reductions, or
impairments, whether arising hereunder or otherwise.
(d) Lender may deal with Borrower and Affiliates of Borrower
in the same manner and as freely as if this Guaranty did not exist and shall be
entitled, among other things, to grant Borrower or any other Person such
extension or extensions of time to perform any act or acts as may be deemed
advisable by Lender, at any time and from time to time, without terminating,
affecting or impairing the validity of this Guaranty or the obligations of
Guarantors hereunder.
(e) No compromise, alteration, amendment, modification,
extension, renewal, release or other change of, or waiver, consent, delay,
omission, failure to act or other action with respect to, any liability or
obligation under or with respect to, or of any of the terms, covenants or
conditions of, the Loan Documents shall in any way alter, impair or affect any
of the obligations of Guarantors hereunder, and Guarantors agree that if any
Loan Document are modified with Lender's consent, the Guaranteed Obligations
shall automatically be deemed modified to include such modifications.
(f) Lender may proceed to protect and enforce any or all of
its rights under this Guaranty by suit in equity or action at law, whether for
the specific performance of any covenants or agreements contained in this
Guaranty or otherwise, or to take any action authorized or permitted under
applicable law, and shall be entitled to require and enforce the
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performance of all acts and things required to be performed hereunder by
Guarantors. Each and every remedy of Lender shall, to the extent permitted by
law, be cumulative and shall be in addition to any other remedy given hereunder
or now or hereafter existing at law or in equity.
(g) No waiver shall be deemed to have been made by Lender of
any rights hereunder unless the same shall be in writing and signed by Lender,
and any such waiver shall be a waiver only with respect to the specific matter
involved and shall in no way impair the rights of Lender or the obligations of
Guarantors to Lender in any other respect or at any other time.
(h) At the option of Lender, any Guarantor may be joined in
any action or proceeding commenced by Lender against Borrower in connection with
or based upon any other Loan Documents and recovery may be had against any
Guarantor in such action or proceeding or in any independent action or
proceeding against such Guarantor to the extent of such Guarantor's liability
hereunder, without any requirement that Lender first assert, prosecute or
exhaust any remedy or claim against Borrower or any other Person, or any
security for the obligations of Borrower or any other Person.
(i) Guarantors agree that this Guaranty shall continue to be
effective or shall be reinstated, as the case may be, if at any time any payment
is made by Borrower or a Guarantor to Lender and such payment is rescinded or
must otherwise be returned by Lender (as determined by Lender in its sole and
absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization,
readjustment, composition, dissolution, receivership, conservatorship, winding
up or other similar proceeding involving or affecting Borrower or a Guarantor,
all as though such payment had not been made.
(j) In the event that any Guarantor shall advance or become
obligated to pay any sums under this Guaranty or in connection with the
Guaranteed Obligations or in the event that for any reason whatsoever Borrower
or any subsequent owner of the Property or any part thereof is now, or shall
hereafter become, indebted to a Guarantor, such Guarantor agrees that (i) the
amount of such sums and of such indebtedness and all interest thereon shall at
all times be subordinate as to lien, the time of payment and in all other
respects to all sums, including principal and interest and other amounts, at any
time owed to Lender under the Loan Documents, and (ii) such Guarantor shall not
be entitled to enforce or receive payment thereof until all principal, Interest
and other sums due pursuant to the Loan Documents have been paid in full.
Nothing herein contained is intended or shall be construed to give any Guarantor
any right of subrogation in or under the Loan Documents or any right to
participate in any way therein, or in the right, title or interest of Lender in
or to any collateral for the Loan, notwithstanding any payments made by a
Guarantor under this Guaranty, until the actual and irrevocable receipt by
Lender of payment in full of all principal, Interest and other sums due with
respect to the Loan or otherwise payable under the Loan Documents. If any amount
shall be paid to a Guarantor on account of such subrogation rights at any time
when any such sums due and owing to Lender shall not have been fully paid, such
amount shall be paid by such Guarantor to Lender for credit and application
against such sums due and owing to Lender.
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(k) Guarantors' obligations hereunder shall survive a
foreclosure, deed-in-lieu of foreclosure or similar proceeding involving the
Property and the exercise by Lender of any of all of its remedies pursuant to
the Loan Documents.
6. COVENANTS.
(a) As used in this Section 6, the following terms shall
have the respective meanings set forth below:
(i) "GAAP" shall mean generally accepted accounting
principles, consistently applied.
(ii) "LIQUID ASSETS" shall mean assets in the form of
cash, cash equivalents, obligations of (or fully guaranteed as to
principal and interest by) the United States or any agency or
instrumentality thereof (provided the full faith and credit of the
United States supports such obligation or guarantee), certificates of
deposit issued by a commercial bank having net assets of not less than
$500 million, securities listed and traded on a recognized stock
exchange or traded over the counter and listed in the National
Association of Securities Dealers Automatic Quotations, or liquid debt
instruments that have a readily ascertainable value and are regularly
traded in a recognized financial market.
(iii) "NET WORTH" shall mean, as of a given date, (x)
the total assets of a Guarantor as of such date less (y) such
Guarantor's total liabilities as of such date, determined in accordance
with GAAP.
(b) No Guarantor shall, at any time while a default in the
payment of the Guaranteed Obligations has occurred and is continuing, either (i)
enter into or effectuate any transaction with any Affiliate which would reduce
the Net Worth of such Guarantor, including the payment of any dividend or
distribution to a shareholder, or the redemption, retirement, purchase or other
acquisition for consideration of any stock in such Guarantor or (ii) sell,
pledge, mortgage or otherwise transfer to any Person any of such Guarantor's
assets, or any interest therein, except for fair value.
7. ENTIRE AGREEMENT/AMENDMENTS. This instrument represents the
entire agreement between the parties with respect to the subject matter hereof.
The terms of this Guaranty shall not be waived, altered, modified, amended,
supplemented or terminated in any manner whatsoever except by written instrument
signed by Lender and Guarantors.
8. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon each
Guarantor, and such Guarantor's estate, heirs, personal representatives,
successors and assigns, may not be assigned or delegated by any Guarantor and
shall inure to the benefit of Lender and its successors and assigns.
9. APPLICABLE LAW AND CONSENT TO JURISDICTION. This Guaranty shall
be governed by, and construed in accordance with, the substantive laws of the
State of New York. Each Guarantor irrevocably (a) agrees that any suit, action
or other legal proceeding arising out of or relating to this Guaranty may be
brought in a court of record in the City and County of New
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York or in the Courts of the United States of America located in the Southern
District of New York, (b) consents to the jurisdiction of each such court in any
such suit, action or proceeding and (c) waives any objection which it may have
to the laying of venue of any such suit, action or proceeding in any of such
courts and any claim that any such suit, action or proceeding has been brought
in an inconvenient forum. Each Guarantor irrevocably consents to the service of
any and all process in any such suit, action or proceeding by service of copies
of such process to such Guarantor at its address provided in Section 14 hereof.
Nothing in this Section 9, however, shall affect the right of Lender to serve
legal process in any other manner permitted by law or affect the right of Lender
to bring any suit, action or proceeding against any Guarantor or its property in
the courts of any other jurisdictions.
10. SECTION HEADINGS. The headings of the sections and paragraphs of
this Guaranty have been inserted for convenience of reference only and shall in
no way define, modify, limit or amplify any of the terms or provisions hereof.
11. SEVERABILITY. Any provision of this Guaranty which may be
determined by any competent authority to be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, each Guarantor
hereby waives any provision of law which renders any provision hereof prohibited
or unenforceable in any respect.
12. WAIVER OF TRIAL BY JURY. EACH GUARANTOR HEREBY WAIVES THE RIGHT
OF TRIAL BY JURY IN ANY LITIGATION, ACTION OR PROCEEDING ARISING HEREUNDER OR IN
CONNECTION THEREWITH.
13. OTHER GUARANTIES. This Guaranty is in addition to any and all
other guaranties relating to the Debt or any portion thereof. Subject to the
provisions of Section 17 below, to the extent a Guarantor may become liable
under this Guaranty and one or more other guarantors may become liable under the
terms of any other guaranty made in favor of Lender with respect to the Debt,
Lender shall be entitled to exercise any and all of its remedies against
Guarantors under this Guaranty as well any and all of its remedies against any
one or more guarantors under such other guaranties jointly and severally.
14. NOTICES. All notices, consents, approvals and requests required
or permitted hereunder (a "NOTICE") shall be given in writing and shall be
effective for all purposes if either hand delivered with receipt acknowledged,
or by a nationally recognized overnight delivery service (such as Federal
Express), or by certified or registered United States mail, return receipt
requested, postage prepaid, or by facsimile and confirmed by facsimile answer
back, in each case addressed as follows (or to such other address or Person as a
party shall designate from time to time by notice to the other party): If to
Lender: Greenwich Capital Financial Products, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Mortgage Loan Department, Telecopier
(▇▇▇) ▇▇▇-▇▇▇▇ and to Greenwich Capital Financial Products, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Legal Department, Telecopier
(▇▇▇) ▇▇▇-▇▇▇▇, with a copy to: ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇; if to
Guarantor: ▇▇▇▇ ▇▇▇▇▇
▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Legal
Counsel, Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇, and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇. A notice shall be deemed to
have been given: in the case of hand delivery, at the time of delivery; in the
case of registered or certified mail, when delivered or the first attempted
delivery on a Business Day; or in the case of overnight delivery, upon the first
attempted delivery on a Business Day.
15. GUARANTOR'S RECEIPT OF LOAN DOCUMENTS. Each Guarantor by its
execution hereof acknowledges receipt of true copies of all of the Loan
Documents, the terms and conditions of which are hereby incorporated herein by
reference.
16. INTEREST; EXPENSES.
(a) If Guarantors fail to pay all or any sums due hereunder
upon demand by Lender, the amount of such sums payable by Guarantors to Lender
shall bear interest from the date of demand until paid at the Default Rate in
effect from time to time.
(b) Each Guarantor hereby agrees to pay all costs, charges
and expenses, including reasonable attorneys' fees and disbursements, that may
be incurred by Lender in enforcing the covenants, agreements, obligations and
liabilities of Guarantors under this Guaranty.
17. LIMITATION ON LIABILITY. Notwithstanding anything to the
contrary contained herein or in any other Loan Document, it is expressly
understood and agreed that no Guarantor hereunder shall be liable for any
Recourse Liability Guaranteed Obligation or any Springing Recourse Guaranteed
Obligation, which in either case is the obligation of Borrower (pursuant to
Section 10.1 of the Loan Agreement) other than BEHRINGER HARVARD COLORADO
BUILDING H, LLC.
18. JOINT AND SEVERAL OBLIGATIONS. Each Guarantor shall have joint
and several liability for the obligations of Guarantors hereunder.
19. COUNTERPARTS. This Guaranty may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, each Guarantor has executed this Guaranty as of the
date first above written.
BEHRINGER HARVARD HOLDINGS, LLC
By:
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Name:
Title:
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, individually
SCHEDULE 1
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List of Initial TIC Borrowers
TIC Colorado Building 2, LLC
TIC Colorado Building 3, LLC
TIC Colorado Building 4, LLC
TIC Colorado Building 5, LLC
TIC Colorado Building 6, LLC
TIC Colorado Building 7, LLC
TIC Colorado Building 8, LLC
TIC Colorado Building 10, LLC