Exhibit 10.95


 


	
  

  	
   

  	
  Guaranty

  



 


THIS GUARANTY (this “Guaranty”) is made and entered into effective as of the 3rd
day of August 2007, by Behringer Harvard Opportunity REIT I, Inc., a Maryland
corporation (“Guarantor”) for the benefit of Comerica
Bank (“Lender”).


 


W I T N E S S E T H:


 


WHEREAS, FRISCO SQUARE
LAND, LTD., a Texas limited partnership (“Original Borrower”)
has executed and delivered to Lender:


 


(i)                                     that
certain Amended and Restated Loan Agreement dated effective as of the 10th day
of March, 2006, executed by and between Original Borrower and Lender, as
amended by that certain Modification And Extension Agreement (the “SLOC Modification”) dated effective as of March 10, 2007
executed by and between Original Borrower and Lender (as so amended, the “Loan Agreement”);


 


(ii)                                  that
certain Amended and Restated Promissory Note Eurodollar Rate-Single Payment
Note (the “Term Note”) dated March 10, 2006
executed by Original Borrower, and payable to the order of Lender, in the
maximum face amount of Twenty Six Million Six Hundred Sixty Four Thousand And
No/100 Dollars ($26,664,000.00),


 


(iii)                               that certain Note (the “SLOC Note”) dated effective March 10, 2006 executed by
Original Borrower, and payable to the order of Lender, as amended by the SLOC
Modification, in the maximum amount of One Million Five Hundred Thousand And
No/100 Dollars ($1,500,000.00) (the Term Note and SLOC Note are referred to
herein collectively as the “Notes”); and


 


(iv)                              that
certain Amended and Restated Deed of Trust, Security Agreement and Assignment
of Rents (the “Deed of Trust”) dated March 10,
2006 from Borrower to Melinda A. Chausse, Trustee, for the benefit of Lender,
securing the payment of the Notes, covering certain real and personal property
described therein and more particularly described on Exhibit A attached hereto
and made a part hereof (the “Original Mortgaged
Property”), and recorded under document number 20060314000340000,
Official Public Records, Collin County, Texas (the Loan Agreement, Deed of
Trust and all other documents executed by Borrower and/or any other party or
parties evidencing or securing or otherwise in connection with the loans
evidenced by the Term Note being herein collectively called the “Loan Documents”);


 


WHEREAS,
contemporaneously herewith, a portion of the Original Mortgaged Property has
been released from the lien of the Deed of Trust and Original Borrower has
conveyed the remainder of the Original Mortgaged Property (herein, the “Mortgaged Property”) to BHFS I, LLC, a Delaware limited
liability company (“Borrower”), and
assigned to Borrower of all of Original Borrower’s obligations under the Loan
Documents; and Borrower has assumed all of the obligations of Original Borrower,
as of 


 


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the date of the Assumption Agreement (as defined
below), under the Loan Documents, pursuant to and as modified by that certain
Assumption and Modification Agreement dated August 3, 2007 executed by and
among Lender, Original Borrower and Borrower (the “Assumption
Agreement”);


 


WHEREAS, pursuant to the
terms of the Assumption Agreement, the SLOC Note has been paid in full;


 


WHEREAS, the execution
and delivery of this Guaranty by Guarantor to Lender was a condition to Lender’s
consent to the conveyance of the Mortgaged Property to Borrower and the
modifications of the Loan Documents set forth in the Assumption Agreement;


 


NOW, THEREFORE, for and in consideration of the mutual
covenants contained herein and for other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Guarantor hereby agrees as
follows:


 


As of August 3, 2007, Guarantor, for value received,
unconditionally and absolutely guarantees to Lender, payment when due, whether
by stated maturity, demand, acceleration or otherwise, of all existing and
future indebtedness (“Indebtedness”)
to Lender of Borrower but only to the extent that amounts become payable after
the date hereof. Indebtedness includes without limit any and all obligations or
liabilities of Borrower to Lender, whether absolute or contingent, direct or
indirect, voluntary or involuntary, liquidated or unliquidated, joint or
several, known or unknown, originally payable to Lender or to a third party and
subsequently acquired by Lender including, without limitation, late charges, loan
fees or charges and overdraft indebtedness; any and all indebtedness,
obligations or liabilities for which Borrower would otherwise be liable to Lender
were it not for the invalidity, irregularity or unenforceability of them by
reason of any bankruptcy, insolvency or other law or order of any kind, or for
any other reason; any and all amendments, modifications, renewals and/or
extensions of any of the above; and all costs of collecting Indebtedness,
including, without limit, attorneys’ fees. Any reference in this Guaranty to
attorneys’ fees shall be deemed a reference to reasonable fees, charges, costs
and expenses of counsel and paralegals, whether inside or outside counsel is
used, and whether or not a suit or action is instituted, and to court costs if
a suit or action is instituted, and whether attorneys’ fees or court costs are
incurred at the trial court level, on appeal, in a bankruptcy, administrative
or probate proceeding or otherwise. All costs shall be payable immediately by Guarantor
when incurred by Lender, without demand, and until paid shall bear interest at
the highest per annum rate applicable to any of the Indebtedness, but not in
excess of the maximum rate permitted by law.


 


1.                                      LIMITED
GUARANTY:  The total obligation of Guarantor
under this Guaranty is LIMITED. Notwithstanding anything herein to the
contrary, the liability of Guarantor for the outstanding principal of the Term
Note shall not exceed $14,780,695.90 of the principal outstanding thereunder at
any time; and this obligation (irrespective of the limitation above) shall
include, IN ADDITION TO any limited amount of principal guaranteed, all
interest and all costs incurred by Lender in collection efforts against the
Borrower and/or Guarantor or otherwise incurred by Lender in any way relating
to the Indebtedness, or this Guaranty, including without limit reasonable
attorneys’ fees. Guarantor agrees that (a) this limitation shall not be a
limitation on the amount of Borrower’s Indebtedness to Lender; (b) any payments
by Guarantor shall not reduce the maximum liability of Guarantor under this
Guaranty unless written notice to that effect is actually received by Lender
at, or prior to, the time of the payment; and (c) the liability of Guarantor to
Lender shall at all times be deemed to be the aggregate liability of Guarantor
under this Guaranty 


 


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and
any other guaranties previously or subsequently given to the Bank by Guarantor
and not expressly revoked, modified or invalidated in writing.


 


2.                                      NATURE
OF GUARANTY:  This is a continuing guaranty
of payment and not of collection and remains effective whether the Indebtedness
is from time to time reduced and later increased or entirely extinguished and
later reincurred. Guarantor delivers this Guaranty based solely on Guarantor’s
independent investigation of (or decision not to investigate) the financial condition
of Borrower and Guarantor are not relying on any information furnished by Lender.
Guarantor assumes full responsibility for obtaining any further information
concerning Borrower’s financial condition, the status of the Indebtedness or
any other matter which Guarantor may deem necessary or appropriate now or later.
Guarantor knowingly accepts the full range of risk encompassed in this
Guaranty, which risk includes, without limit, the possibility that Borrower may
incur Indebtedness to Lender after the financial condition of Borrower, or Borrower’s
ability to pay debts as they mature, has deteriorated.


 


3.                                      APPLICATION
OF PAYMENTS:  Guarantor authorizes Lender,
either before or after termination of this Guaranty, without notice to or
demand on Guarantor and without affecting any of Guarantor’s liability under
this Guaranty, from time to time to: (a) apply any security and direct the
order or manner of sale; and (b) apply payments received by Lender from
Borrower to any indebtedness of Borrower to Lender, in such order as Lender
shall determine in its sole discretion, whether or not this indebtedness is
covered by this Guaranty, and Guarantor waives any provision of law regarding
application of payments which specifies otherwise. Guarantor agrees to provide
to Lender copies of Guarantor’s financial statements upon request.


 


4.                                      SECURITY:  Guarantor pledges, assigns and grants to Lender
a security interest in and lien upon and the right of setoff as to any and all
property of Guarantor now or later in the possession of Lender. Guarantor
further assigns to Lender as collateral for the obligations of Guarantor under
this Guaranty all claims of any nature that Guarantor now or later has (have)
against Borrower (other than any claim under a deed of trust or mortgage
covering California real property) with full right on the part of Lender, in
its own name or in the name of Guarantor, to collect and enforce these claims. Guarantor
agrees that no security now or later held by Lender for the payment of any
Indebtedness, whether from Borrower, any guarantor, or otherwise, and whether
in the nature of a security interest, pledge, lien, assignment, setoff, suretyship,
guaranty, indemnity, insurance or otherwise, shall affect in any manner the
unconditional obligation of Guarantor under this Guaranty, and Lender, in its
sole discretion, without notice to Guarantor, may release, exchange, enforce
and otherwise deal with any security without affecting in any manner the
unconditional obligation of Guarantor under this Guaranty. Guarantor acknowledges
and agrees that Lender has no obligation to acquire or perfect any lien on or
security interest in any asset(s), whether realty or personalty, to secure
payment of the Indebtedness, and Guarantor is not relying upon any asset(s) in
which Lender has or may have a lien or security interest for payment of the
Indebtedness.


 


5.                                      OTHER
GUARANTORS:  If any Indebtedness is
guaranteed by two or more guarantors, the obligation of Guarantor shall be
several and also joint, each with all and also each with any one or more of the
others, and may be enforced at the option of Lender against each severally, any
two or more jointly, or some severally and some jointly. Lender, in its sole
discretion, may release any one or more of the guarantors for any consideration
which it deems adequate, and may fail or elect not to prove a claim against the
estate of any bankrupt, insolvent, incompetent or deceased guarantor; and after
that, without notice to any guarantor, Lender may extend or renew any or all 


 


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Indebtedness
and may permit Borrower to incur additional Indebtedness, without affecting in
any manner the unconditional obligation of the remaining guarantors. Guarantor
acknowledges that the effectiveness of this Guaranty is not conditioned on any
or all of the Indebtedness being guaranteed by anyone else.


 


6.                                      TERMINATION:  Any of Guarantor may terminate their
obligation under this Guaranty as to future Indebtedness (except as provided
below) by (and only by) delivering written notice of termination to an officer
of Lender and receiving from an officer of Lender written acknowledgement of delivery;
provided, however, the termination shall not be effective until the opening of
business on the fifth (5th) day (“effective date”)
following written acknowledgement of delivery. Any termination shall not affect
in any way the unconditional obligations of the remaining guarantors, whether
or not the termination is known to the remaining guarantors. Any termination
shall not affect in any way the unconditional obligations of the terminating
guarantor as to any Indebtedness existing at the effective date of termination
or any Indebtedness created after that pursuant to any commitment or agreement
of Lender or pursuant to any Borrower loan with Lender existing at the
effective date of termination (whether advances or readvances by Lender after
the effective date of termination are optional or obligatory), or any
modifications, extensions or renewals of any of this Indebtedness, whether in
whole or in part, and as to all of this Indebtedness and modifications,
extensions or renewals of it, this Guaranty shall continue effective until the
same shall have been fully paid. Lender has no duty to give notice of termination
by any guarantor to any remaining guarantors. Guarantor shall indemnify Lender
against all claims, damages, costs and expenses, INCLUDING ANY CLAIMS, DAMAGES, COSTS AND EXPENSES RESULTING FROM LENDER’S
OWN NEGLIGENCE, except and to the extent (but only to the extent)
caused by Lender’s gross negligence or willful misconduct, including, without
limit, attorneys’ fees, incurred by Lender in connection with any suit, claim
or action against Lender arising out of any modification or termination of a
Borrower loan or any refusal by Lender to extend additional credit in
connection with the termination of this Guaranty.


 


7.                                      REINSTATEMENT:  Notwithstanding any prior revocation,
termination, surrender or discharge of this Guaranty (or of any lien, pledge or
security interest securing this Guaranty) in whole or in part, the
effectiveness of this Guaranty, and of all liens, pledges and security
interests securing this Guaranty, shall automatically continue or be reinstated
in the event that any payment received or credit given by Lender in respect of
the Indebtedness is returned, disgorged or rescinded under any applicable state
or federal law, including, without limitation, laws pertaining to bankruptcy or
insolvency, in which case this Guaranty, and all liens, pledges and security
interests securing this Guaranty, shall be enforceable against Guarantor as if
the returned, disgorged or rescinded payment or credit had not been received or
given by Lender, and whether or not Lender relied upon this payment or credit
or changed its position as a consequence of it. In the event of continuation or
reinstatement of this Guaranty and the liens, pledges and security interests
securing it, Guarantor agrees upon demand by Lender, to execute and deliver to Lender
those documents which Lender determines are appropriate to further evidence (in
the public records or otherwise) this continuation or reinstatement, although
the failure of Guarantor to do so shall not affect in any way the reinstatement
or continuation. If Guarantor does not execute and deliver to Lender upon
demand such documents, Lender and each Lender officer is irrevocably appointed
(which appointment is coupled with an interest) the true and lawful attorney of
Guarantor (with full power of substitution) to execute and deliver such
documents in the name and on behalf of Guarantor.


 


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8.                                      WAIVERS:  Guarantor, to the extent not expressly
prohibited by applicable law, waives any right to require Lender to: (a)
proceed against any person or property; (b) give notice of the terms, time and
place of any public or private sale of personal property security held from Borrower
or any other person, or otherwise comply with the provisions of Sections  9-611 or 9-621 of the Texas or other
applicable Uniform Commercial Code, as the same may be amended, revised or
replaced from time to time; or (c) pursue any other remedy in Lender’s power. Guarantor
waives notice of acceptance of this Guaranty and presentment, demand, protest,
notice of protest, dishonor, notice of dishonor, notice of default, notice of
intent to accelerate or demand payment or notice of acceleration of any Indebtedness,
any and all other notices to which Guarantor might otherwise be entitled, and
diligence in collecting any Indebtedness, and all rights of a guarantor under
Rule 31, Texas Rules of Civil Procedure, Chapter 34 of the Texas Business and
Commerce Code, or Section 17.001 of the Texas Civil Practice and Remedies Code,
and agree that Lender may, once or any number of times, modify the terms of any
Indebtedness, compromise, extend, increase, accelerate, renew or forbear to
enforce payment of any or all Indebtedness, or permit Borrower to incur
additional Indebtedness, all without notice to Guarantor and without affecting
in any manner the unconditional obligation of Guarantor under this Guaranty.


 


Guarantor
unconditionally and irrevocably waives each and every defense and setoff of any
nature which, under principles of guaranty or otherwise, would operate to
impair or diminish in any way the obligation of Guarantor under this Guaranty,
and acknowledge that each such waiver is by this reference incorporated into
each security agreement, collateral assignment, pledge and/or other document
from Guarantor now or later securing this Guaranty and/or the Indebtedness, and
acknowledge that as of the date of this Guaranty no such defense or setoff
exists.


 


9.                                      WAIVER
OF SUBROGATION:  Guarantor waives any
and all rights (whether by subrogation, indemnity, reimbursement, or otherwise)
to recover from Borrower any amounts paid by Guarantor pursuant to this
Guaranty until the Indebtedness has been paid in full.


 


10.                               SALE/ASSIGNMENT:  Guarantor acknowledges that Lender has the
right to sell, assign, transfer, negotiate, or grant participations in all or
any part of the Indebtedness and any related obligations, including, without
limit, this Guaranty, without notice to Guarantor and that Lender may disclose
any documents and information which Lender now has or later acquires relating to
Guarantor or to Borrower or the Indebtedness in connection with such sale,
assignment, transfer, negotiation, or grant. Guarantor agrees that Lender may
provide information relating to this Guaranty or relating to Guarantor to Lender’s
parent, affiliates, subsidiaries and service providers.


 


11.                               GENERAL:  This Guaranty constitutes the entire
agreement of Guarantor and Lender with respect to the subject matter of this
Guaranty. No waiver, consent, modification or change of the terms of this
Guaranty shall bind any of Guarantor or Lender unless in writing and signed by
the waiving party or an authorized officer of the waiving party, and then this
waiver, consent, modification or change shall be effective only in the specific
instance and for the specific purpose given. This Guaranty shall inure to the
benefit of Lender and its successors and assigns and shall be binding on
Guarantor and Guarantor’s successors and assigns including, without limit, any
debtor in possession or trustee in bankruptcy for any of Guarantor. Guarantor
has knowingly and voluntarily entered into this Guaranty in good faith for the
purpose of inducing Lender to extend credit or make other financial
accommodations to Borrower. If any provision of this Guaranty is unenforceable
in whole or in part for any reason, the remaining provisions shall continue to
be effective. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN 


 


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ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO CONFLICT OF
LAWS PRINCIPLES.


 


12.                               HEADINGS:  Headings in this Guaranty are included for
the convenience of reference only and shall not constitute a part of this
Guaranty for any purpose.


 


13.                               COVENANTS
OF GUARANTOR:


 


(a)                                  The
following terms shall have the meanings set forth below:


 


“Debt” shall
mean, as of any applicable date of determination thereof, all items of
indebtedness, obligation or liability of Guarantor whether matured or
unmatured, liquidated or unliquidated, direct or indirect, absolute or
contingent, joint or several, that should be classified as liabilities in
accordance with GAAP.


 


“Debt-to-Asset Ratio”
shall mean, in respect of Guarantor and as of any applicable date of
determination thereof, the ratio of (i) the Debt of Guarantor at such time to
(ii) the net book value of all assets of Guarantor after all appropriate
deductions in accordance with GAAP (including, without limitation, reserves for
doubtful receivables, obsolescence, depreciation and amortization) at such
time.


 


“GAAP” shall
mean generally accepted accounting principles consistently applied.


 


“Net Worth”
shall mean, with respect to Guarantor, and as to any applicable date of
determination, the excess of (i) the net book value of all assets of Guarantor
after all appropriate deductions in accordance with GAAP (including, without
limitation, reserves for doubtful receivables, obsolescence, depreciation and
amortization), over (ii) all Debt of Guarantor at such time.


 


(b)                                 Until all Indebtedness is fully and finally
paid and discharged and all agreements and obligations, if any, of Lender to
extend credit or make other financial accommodations to Borrower are terminated
(including, without limitation, any credit facility made available by Lender to
Borrower even if loans or advances thereunder shall be optional or
non-obligatory), Guarantor covenants and agrees that Guarantor (i) shall
maintain a Net Worth at all times of no less than Fifty Million Dollars ($50,000,000);
and (ii) shall maintain a Debt-to-Asset Ratio at all times of not more than
0.65:1.


 


14.                               COUNTERPARTS.
This Guaranty may be executed in
any number of counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which
when taken together shall constitute a single agreement.


 


15.                               JURY
TRIAL WAIVER:  GUARANTOR AND LENDER, BY
ACCEPTANCE OF THIS GUARANTY, ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A
CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH PARTY, AFTER CONSULTING (OR
HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR CHOICE, KNOWINGLY
AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT WAIVES ANY RIGHT TO TRIAL BY JURY
IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN
ANY WAY RELATED TO, THIS GUARANTY OR THE INDEBTEDNESS.


 


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16.                               THIS
WRITTEN LOAN AGREEMENT (AS DEFINED BY SECTION 26.02 OF THE TEXAS BUSINESS AND
COMMERCE CODE) REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT
BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN OR ORAL AGREEMENTS BETWEEN
THE PARTIES.


 


IN WITNESS WHEREOF, Guarantor
has signed and delivered this Guaranty the day and year first written above.


 


 


	
   

  	
  BEHRINGER
  HARVARD OPPORTUNITY REIT I, INC.

  
	
   

  	
  a Maryland
  corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald J.
  Reihsen, III

  	
   

  
	
   

  	
   

  	
  Gerald J. Reihsen, III

  
	
   

  	
   

  	
  Executive Vice President – Corporate Development

  
	
   

  	
   

  	
  & Legal and Secretary

  



 


 


	
  STATE OF TEXAS

  	
  §

  
	
   

  	
  §

  
	
  COUNTY OF DALLAS

  	
  §

  



 


 


This
instrument was acknowledged before me on August 2, 2007 by Gerald J. Reihsen,
III, the Executive Vice President – Corporate Development & Legal and
Secretary BEHRINGER HARVARD OPPORTUNITY REIT I, INC., a Maryland corporation, on behalf of said
corporation.


 


	
   

  	
   /s/ Catherine E. Mea

  	
   

  
	
   

  	
  Notary Public, State of
  Texas

  
	
   

  	
   

  
	
   

  	
  My Commission Expires:

  	
  7/26/08

  	
   

  
	
   

  	
   

  
	
   

  	
  Printed Name of Notary:

  	
  Catherine E. Mea

  	
   

  
					



 


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