Exhibit 10.106


 


GUARANTY
AGREEMENT


 


August
3, 2007


 


TO:
FIRST NATIONAL BANK OF OMAHA


 


Reference is hereby made to:
(i) that certain Building Loan Agreement (the “F1-10 Loan Agreement”),
dated as of November 5, 2002, between Frisco Square B1-7, F1-10, Ltd., a Texas
limited partnership (“Original Borrower”) and First National Bank of
Omaha (“Lender”) as modified by that certain Modification Agreement of
Building Loan Agreements, Promissory Notes and Deeds of Trust and Security
Agreements, dated as of June 8, 2004 (the “First Modification Agreement”),
and as further modified by that certain Second Modification Agreement of
Building Loan Agreements and Promissory Notes, dated as of July 7, 2005 (the “Second
Modification Agreement”), pursuant to which Lender agreed to make available
to Original Borrower a construction loan (the “F1-10 Loan”) represented
by that certain Amended and Restated Promissory Note (the “F1-10 Note”)
made and executed by Original Borrower and payable to the order of Lender in
the principal amount of Eight Million Four Hundred Six Thousand and No/100ths
Dollars ($8,406,000.00) dated July 7, 2005; and (ii) that certain Building Loan
Agreement (the “B1-7 Loan Agreement”, and together with the F1-10 Loan
Agreement, the “Loan Agreements”), dated as of November 5, 2002, between
Original Borrower and Lender, as modified by the First Modification Agreement
and as further modified by the Second Modification Agreement, pursuant to which
Lender agreed to make available to Original Borrower a construction loan (the “B1-7
Loan,” and together with the F1-10 Loan, the “Loans”) represented by
that certain Amended and Restated Promissory Note (the “B1-7 Note,” and
together with the F1-10 Note, the “Notes”) made and executed by Original
Borrower and payable to the order of Lender in the principal amount of Five
Hundred Thirty-Three Thousand Seven Hundred Twenty-Four and 77/100ths Dollars
($533,724.77), dated June 8, 2004.


 


The undersigned, Behringer
Harvard Opportunity REIT I, Inc., a Maryland corporation (“Guarantor”),
hereby requests Lender to consent to the assumption of the Loans by BHFS II,
LLC, a Delaware limited liability company  (“Successor
Borrower,” and together with Original Borrower, the “Borrower”) on
the terms and conditions set forth in that certain Third Loan Modification and
Assumption Agreement, dated as of the date hereof, among Original Borrower,
Successor Borrower and Lender (the “Third Modification Agreement”), and
in consideration thereof, Guarantor hereby guarantees and promises and agrees to
make prompt payment to Lender, as they severally mature, of all moneys paid by
Lender for the use or account of Borrower and of all Notes, acceptances and
other paper which have been or may be discounted for, or at the request of,
Borrower, whether made, drawn, accepted, endorsed or not endorsed by Borrower,
and whether endorsed with or without recourse, and of any and all other
obligations, of every kind and character, now due or which may hereafter become
due from Borrower to Lender with respect to the Loans, howsoever created,
arising or evidenced, and also of any and all renewals or extensions of any of
the foregoing (all herein called “Liabilities”) regardless of any
collateral now held by Lender, or which Lender may hereafter acquire, as
security for any or all of the Liabilities; provided, however,
that the liability of the Guarantor hereunder shall be limited to an amount
equal to the product of: (a) 70%; and (b) the total Liabilities.


 


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Guarantor acknowledges that it
is an affiliate of Successor Borrower and that Guarantor will receive a direct
and substantial benefit from the transactions described in the Third
Modification Agreement. Guarantor agrees that the making of the Loans by Lender
to Borrower constitutes adequate consideration and reasonably equivalent value
to Guarantor in exchange for the execution and delivery of this Guaranty by
Guarantor.


 


It is understood that
extensions of time of payment or modifications or renewals of any of the
Liabilities shall not in any way impair the liability of Guarantor to Lender.


 


When any of the Liabilities
shall become and remain due and unpaid, Guarantor will, upon demand, pay to
Lender the amount due thereon.


 


In the event any property of
Guarantor of any kind is now, or at any time hereafter shall be, in the
possession of Lender, including, but without limitation, any deposit or credit
balance or other indebtedness credited by or due from Lender to Guarantor (“Guaranty
Collateral”), Guarantor hereby pledges to and grants to Lender a security
interest in and to all such Guaranty Collateral.


 


Upon the failure of Guarantor
to pay any of the Liabilities as agreed and which are hereby guaranteed, Lender
shall then have all of the rights and remedies of a secured party under the
Uniform Commercial Code of Texas, including without limitation, the right to
sell or otherwise dispose of, from time to time, any or all of the Guaranty
Collateral. Unless the Guaranty Collateral is of a type to decline speedily in
value or is of a type commonly sold on a recognized market, Lender shall send
Guarantor reasonable notice of the time and place of any public sale or of the
date after which any private sale or other disposition is to be made. The
requirement of such notice shall be met if such notice is mailed, postage
prepaid, to Guarantor at the last address for Guarantor shown on Lender’s
records, at least thirty (30) days before the time of sale or other disposition.
After deducting all costs and expenses of every kind, Lender may apply the
residue of the proceeds of any sale or sales of Guaranty Collateral to pay any
Liabilities and/or any amounts owing hereunder in such order or preference as
Lender may determine.


 


Before proceeding hereunder
against Guarantor, resort need not be made by Lender to (i) any other
security for any or all of the Liabilities whether pledged by Borrower or by
any other person in connection with the Liabilities or (ii) the Guaranty
Collateral (collectively, the “Collateral”), nor need Lender exhaust any
remedy against Borrower, nor against any other endorser, surety or guarantor
(including Guarantor) of the Liabilities.


 


Notice of the making, renewing
or extending time of payment of any of the Liabilities, and of demand, protest,
and notice of nonpayment thereof, and notice of acceptance hereof, are
expressly waived. No substitution, release, surrender or impairment (including
but not limited to failure to perfect a security interest in any Collateral) of
any Collateral, nor the substitution, release or death of any other party
liable for the payment of any Liabilities, shall affect the liability of
Guarantor to Lender. Guarantor waives all errors and omissions in connection
with Lender’s administration of the Liabilities and Collateral. A waiver by
Lender of any right or remedy on any one or more occasions shall not be
construed as a bar to or a waiver of any such


 


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right
or remedy on future occasions. Guarantor expressly waives any changes in the
terms of the Liabilities, including interest rate and term.


 


Guarantor will pay on demand
all out of pocket costs of collection, legal expenses, and reasonable attorneys’
fees incurred or paid by Lender in collecting and/or enforcing this Guaranty
and the Guaranty Collateral, unless prohibited by applicable law.


 


Upon payment of any Liabilities
by Guarantor, Guarantor shall be subrogated to the rights of Lender against
Borrower to the extent of the payment made; provided, however, Guarantor hereby
postpones and subordinates its right of subrogation until all Liabilities have
been paid in full. Guarantor further agrees that if a voluntary or involuntary
petition in bankruptcy is filed by or against Borrower, and Guarantor is
determined to be an insider of Borrower under applicable bankruptcy law, then
in such event Guarantor forever waives any right of subrogation against
Borrower on account of payment made pursuant to this Guaranty.


 


Guarantor agrees that, if at
any time all or any part of any payment previously applied by Lender on any of
the Liabilities must be returned by Lender for any reason, whether by court
order, administrative order, or settlement, Guarantor shall remain liable for
the full amount returned (except to the extent limited herein) as if such
amount had never been received by Lender, notwithstanding any termination of
this Guaranty or the cancellation of any agreement evidencing the Liabilities.


 


Guarantor agrees to provide to
Lender upon request: (i) its annual financial statement, certified by
Guarantor; (ii) its annual federal tax return; and (iii) from time to time,
such further information regarding the financial condition, business and/or
properties of Guarantor as Lender may reasonably request.


 


This Guaranty shall remain
fully enforceable irrespective of any defense which the Borrower may assert on
the Liabilities, including, but not limited to, failure of consideration or
statute of frauds.


 


Guarantor has unconditionally
delivered this Guaranty to Lender and failure to sign this or any other
guaranty by any other person shall not discharge the liability of Guarantor
under this Guaranty.


 


Any notices to be provided to
Guarantor under the Loan Documents shall be sent to:  Harvard Opportunity REIT I, Inc., 15601
Dallas Parkway, Suite 600, Addison, Texas 75001, Attn: Chief Legal Officer.


 


GUARANTOR HEREBY WAIVES THE
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS
GUARANTY.


 


This Guaranty shall be governed
by, and construed in accordance with, the laws of the State of Texas, shall
inure to the benefit of Lender, its successors and assigns, and shall be
binding upon Guarantor and the successors and assigns of Guarantor.


 


Lender hereby represents to
Guarantor that: (a) upon the satisfaction of the conditions set forth in
Section 7 of the Third Modification Agreement, any acceleration of the maturity
of the


 


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F1-10
Note due solely to the occurrence of the Specified Defaults (as defined in the
Third Modification Agreement) will be waived; (b) other than the Specified
Defaults which shall be waived by Lender upon the satisfaction of the
conditions set forth in Section 7 of the Third Modification Agreement, to the
knowledge of the Lender, no event or condition which, with the giving of
notice, the lapse of time, or both, would constitute an Event of Default has
occurred and is continuing; and (c) after giving effect to the satisfaction of
the conditions set forth in Section 7 of the Third Modification Agreement, to
the knowledge of Lender, no amount is currently due under this Guaranty.


 


	
   

  	
  Behringer Harvard Opportunity
  REIT I, Inc.

  
	
   

  	
  a Maryland corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Gerald J. Reihsen, III

  
	
   

  	
  Name:
  

  	
   Gerald
  J. Reihsen, III

  
	
   

  	
  Title:

  	
   Executive Vice President – Corporate

  
	
   

  	
   

  	
  Development
  & Legal and Secretary

  
				



 


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