Exhibit 10.10


 


One Financial Place


 


GUARANTY


 


THIS GUARANTY (“Guaranty”) is executed as of July 13, 2006,
by BEACON CAPITAL STRATEGIC PARTNERS IV, L.P. (hereinafter referred to as “Guarantor”),
for the benefit of WACHOVIA BANK, NATIONAL ASSOCIATION (“Lender”).


 


A.                                   ONE
FINANCIAL PLACE PROPERTY LLC, a Delaware limited liability company (“Borrower”)
is indebted to Lender with respect to a loan (“Loan”) pursuant to that
certain Promissory Note, dated of even date herewith, payable to the order of
Lender in the original principal amount of ONE HUNDRED EIGHTY-EIGHT MILLION SIX
HUNDRED THOUSAND AND NO/100 DOLLARS ($188,600,000.00) (together with all
renewals, replacements, modifications, increases and extensions thereof, the “Note”),
which is secured by the liens and security interests created by that certain
Mortgage, Security Agreement, Assignment of Rents and Fixture Filing of even
date herewith from Borrower to Lender (collectively, the “Security
Instrument”), and further evidenced, secured or governed by the other Loan
Documents (as defined in the Security Instrument); and


 


B.                                     Lender
is not willing to make the Loan, or otherwise extend credit, to Borrower unless
Guarantor unconditionally guarantees payment and performance to Lender of the
Guaranteed Obligations (as hereinafter defined); and


 


C.                                     Guarantor
is the owner of a direct or indirect interest in Borrower, and Guarantor will
directly benefit from Lender’s making the Loan to Borrower.


 


NOW, THEREFORE, as an inducement to Lender to make the Loan to
Borrower, and to extend such additional credit as Lender may from time to time
agree to extend under the Loan Documents, and for other good and valuable
consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the parties do hereby agree as follows:


 


ARTICLE I

NATURE AND SCOPE OF GUARANTY


 


Section 1.1                                      GUARANTY OF
OBLIGATION. Guarantor hereby absolutely, irrevocably and unconditionally
guarantees to Lender (and its successors and assigns) the payment and
performance of the Guaranteed Obligations as and when the same shall be due and
payable, whether upon demand by Lender or by lapse of time, by acceleration of
maturity or otherwise. Guarantor hereby absolutely, irrevocably and
unconditionally covenants and agrees that it is liable for the Guaranteed
Obligations as a primary obligor, and that Guarantor shall fully perform each
and every term and provision hereof.


 


Section 1.2                                      DEFINITION OF
GUARANTEED OBLIGATIONS. As used herein, the term “Guaranteed Obligations”
shall be deemed to include, and Guarantor shall be liable for, and shall
indemnify, defend and hold Lender and each other Indemnified Party harmless
from and against, any and all Losses (as hereinafter defined) actually incurred
or suffered by Lender or any other Indemnified Party arising out of or in
connection with the matters listed below:


 

















 


(a)                                  fraud
or intentional misrepresentation by Borrower, Guarantor or Affiliates of
Borrower or Guarantor in connection with the Security Instrument, the Note or
the other Loan Documents;


 


(b)                                 after
and during the continuance of an Event of Default, the failure of Borrower to
apply Rent to Property-related expenses or sums due Lender under the Loan
Documents;


 


(c)                                  the
misapplication or conversion by Borrower or any Affiliate thereof of any Loss
Proceeds or tenant security deposits;


 


(d)                                 any
arson or physical waste to or of the Property or physical damage to the
Property resulting from the intentional acts or intentional omissions of
Borrower or any Affiliate of Borrower;


 


(e)                                  Borrower’s
failure to materially comply with the provisions of Sections 2.02(g), 16.01
or 16.02, inclusive, of the Security Instrument;


 


(f)                                    the
exercise of any right or remedy under any federal, state or local forfeiture
laws resulting in the loss or impairment of the lien of the Security
Instrument, or the priority thereof, against the Property as a result of the
criminal acts or omissions of Borrower or Guarantor or any Affiliates thereof;


 


(g)                                 a
voluntary Transfer in violation of the provisions of Article IX of the
Security Instrument; or


 


(h)                                 (i) any
proceeding, action, petition or filing under the Bankruptcy Code, or any
similar state or federal law now or hereafter in effect relating to bankruptcy,
reorganization or insolvency, or the arrangement or adjustment of debts affecting
Borrower, shall be filed by Borrower, or (ii) Borrower or Guarantor or any
Affiliate of either of them shall collude to have such proceeding, action,
petition, or filing instituted against Borrower or shall otherwise institute
any proceeding for Borrower’s dissolution or liquidation.


 


For purposes of this Guaranty, the term “Losses” includes any
and all claims, suits, liabilities (including, without limitation, strict
liabilities), actions, proceedings, obligations, debts, damages, losses, costs,
expenses, fines, penalties, charges, fees, expenses, judgments, awards, amounts
paid in settlement, foreseeable and of whatever kind or nature (including but
not limited to reasonable attorneys’ fees and other costs of defense), actually
suffered or incurred by Lender in connection with the Loan but shall not
include any consequential damages.


 


Section 1.3                                      NATURE OF
GUARANTY. This Guaranty is an irrevocable, absolute, continuing guaranty of
payment and performance and is not a guaranty of collection. This Guaranty
shall continue to be effective with respect to any Guaranteed Obligations
arising or created after any attempted revocation by Guarantor and after (if
Guarantor is a natural Person) Guarantor’s death (in which event this Guaranty
shall be binding upon Guarantor’s estate and Guarantor’s legal representatives
and heirs). The obligations of Guarantor under this Guaranty shall survive any
foreclosure proceeding, any foreclosure sale and delivery of any deed in lieu
of foreclosure, and any release of record of the Security Instrument. The fact
that at any time or


 


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from time to
time the Guaranteed Obligations may be increased or reduced shall not release
or discharge the obligation of Guarantor to Lender with respect to the
Guaranteed Obligations. This Guaranty may be enforced by Lender and any
subsequent holder of the Note and shall not be discharged by the assignment or
negotiation of all or part of the Note.


 


Section 1.4                                      GUARANTEED
OBLIGATIONS NOT REDUCED BY OFFSET. The Guaranteed Obligations and the
liabilities and obligations of Guarantor to Lender hereunder shall not be
reduced, discharged or released because or by reason of any existing or future
offset, claim or defense (other than the defense of performance) of Borrower,
or any other Person, against Lender or against payment of the Guaranteed
Obligations, whether such offset, claim or defense arises in connection with
the Guaranteed Obligations (or the transactions creating the Guaranteed
Obligations) or otherwise.


 


Section 1.5                                      PAYMENT BY
GUARANTOR. If all or any part of the Guaranteed Obligations shall not be
punctually paid when due, whether at maturity or earlier by acceleration or
otherwise, but subject to any applicable notice and cure periods provided to
Borrower with respect thereto under any of the Loan Documents, Guarantor shall,
immediately upon demand by Lender, and without presentment, protest, notice of
protest, notice of non-payment, notice of intention to accelerate the maturity,
notice of acceleration of the maturity, or any other notice whatsoever, pay in
lawful money of the United States of America, the amount due on the Guaranteed
Obligations to Lender at Lender’s address as set forth herein. Such demand(s)
may be made at any time coincident with or after the time for payment of all or
part of the Guaranteed Obligations, and may be made from time to time with
respect to the same or different items of Guaranteed Obligations. Such demand
shall be deemed made, given and received in accordance with the notice
provisions hereof.


 


Section 1.6                                      NO DUTY TO
PURSUE OTHERS. It shall not be necessary for Lender (and Guarantor hereby
waives any rights which Guarantor may have to require Lender), in order to
enforce this Guaranty against Guarantor, first to (i) institute suit or
exhaust its remedies against Borrower or others liable on the Loan or the
Guaranteed Obligations or any other Person, (ii) enforce Lender’s rights
against any collateral which shall ever have been given to secure the Loan, (iii) enforce
Lender’s rights against any other guarantors of the Guaranteed Obligations, (iv) join
Borrower or any others liable on the Guaranteed Obligations in any action
seeking to enforce this Guaranty, (v) exhaust any remedies available to
Lender against any collateral which shall ever have been given to secure the
Loan, or (vi) resort to any other means of obtaining payment of the
Guaranteed Obligations. Lender shall not be required to mitigate damages
(unless required by law) or take any other action to reduce, collect or enforce
the Guaranteed Obligations.


 


Section 1.7                                      WAIVERS. Guarantor
agrees to the provisions of the Loan Documents, and, except with respect to
notices which Guarantor is specifically entitled to receive hereunder or
Borrower is specifically entitled to receive under any of the Loan Documents,
hereby waives notice of (i) any loans or advances made by Lender to
Borrower, (ii) acceptance of this Guaranty, (iii) any amendment or
extension of the Note or of any other Loan Documents, (iv) the execution
and delivery by Borrower and Lender of any other loan or credit agreement or of
Borrower’s execution and delivery of any promissory notes or other documents
arising under the Loan Documents or in connection with the Property, (v) the
occurrence of any breach by Borrower or


 


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Event of
Default, (vi) Lender’s transfer or disposition of the Guaranteed
Obligations, or any part thereof, (vii) sale or foreclosure (or posting or
advertising for sale or foreclosure) of any collateral for the Guaranteed
Obligations, (viii) protest, proof of non-payment or default by Borrower,
or (ix) any other action at any time taken or omitted by Lender, and,
generally, all demands and notices of every kind in connection with this
Guaranty, the Loan Documents, any documents or agreements evidencing, securing
or relating to any of the Guaranteed Obligations and the obligations hereby
guaranteed. Lender agrees that it shall provide Guarantor with written notice
of any claim or demand which Lender has determined could give rise to payment
and performance of the Guaranteed Obligations under this Guaranty. Such notice
shall be given promptly after Lender becomes aware of facts that render the
guaranty herein applicable and shall specify, to Lender’s knowledge, the facts
giving rise to the alleged claim and the amount, to the extent determinable, of
liability for which a claim under this Guaranty is asserted. Lender and
Guarantor each agrees that it will not settle or otherwise compromise any such
action, suit or proceeding brought by a third party (i.e., not Lender,
Borrower, Guarantor or any Affiliate of any of them) without the written
consent of the other party, which consent shall not be unreasonably withheld or
delayed; provided, however, that Guarantor shall have the right to settle or
otherwise compromise any such action, suit or proceeding brought by a third
party without the prior consent of Lender so long as any such settlement or
compromise does not create any obligation on the part of Lender or adversely
affect the rights of Lender under the Loan Documents, and provided further,
however, if an Event of Default has occurred and is continuing, the provisions
of this sentence shall not apply to Lender.


 


Section 1.8                                      PAYMENT OF EXPENSES.
In the event that Guarantor should breach or fail to timely perform any
provisions of this Guaranty, Guarantor shall, within ten (10) Business
Days of demand by Lender, pay Lender all costs and expenses (including court
costs and reasonable attorneys’ fees) incurred by Lender in the enforcement
hereof or the preservation of Lender’s rights hereunder. The covenant contained
in this Section shall survive the payment and performance of the
Guaranteed Obligations.


 


Section 1.9                                      EFFECT OF
BANKRUPTCY. In the event that, pursuant to any insolvency, bankruptcy,
reorganization, receivership or other debtor relief law, or any judgment, order
or decision thereunder, Lender must rescind or restore any payment, or any part
thereof, received by Lender in satisfaction of the Guaranteed Obligations, as
set forth herein, any prior release or discharge from the terms of this
Guaranty given to Guarantor by Lender shall be without effect, and this
Guaranty shall remain in full force and effect. It is the intention of Borrower
and Guarantor that Guarantor’s obligations hereunder shall not be discharged
except by Guarantor’s performance of such obligations and then only to the
extent of such performance.


 


Section 1.10                                DEFERRAL OF RIGHTS
OF SUBROGATION, REIMBURSEMENT AND CONTRIBUTION.


 


(a)                                  Notwithstanding
any payment or payments made by Guarantor hereunder, unless and until payment
in full of the Debt (and including interest accruing on the Note after the
commencement of a proceeding by or against Borrower under the Bankruptcy Code,
which interest the parties agree shall remain a claim that is prior and
superior to any claim of Guarantor notwithstanding any contrary practice,
custom or ruling in cases under the Bankruptcy Code), (i) Guarantor will
not assert or exercise any right of Lender or of Guarantor against Borrower to


 


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recover the
amount of any payment made by Guarantor to Lender by way of subrogation,
reimbursement, contribution, indemnity, or otherwise arising by contract or
operation of law, and Guarantor shall not have any right of recourse to or any
claim against assets or property of Borrower; and (ii) Guarantor agrees
not to seek contribution or indemnity or other recourse from any other
guarantor.


 


(b)                                 Until
payment in full of the Debt (and including interest accruing on the Note after
the commencement of a proceeding by or against Borrower under the Bankruptcy
Code, which interest the parties agree shall remain a claim that is prior and
superior to any claim of Guarantor notwithstanding any contrary practice,
custom or ruling in cases under the Bankruptcy Code), Guarantor agrees not to
accept any payment or satisfaction of any kind of indebtedness of Borrower to
Guarantor and hereby assigns such indebtedness to Lender, including the right
to file proof of claim and to vote thereon in connection with any such
proceeding under the Bankruptcy Code, including the right to vote on any plan
of reorganization. If any amount of the type more particularly described in the
first sentence of this Section 1.10(b) shall nevertheless be paid to
Guarantor by Borrower or another guarantor prior to payment in full of all sums
owed to Lender under the Loan Documents (the “Obligations”), such amount
shall be held in trust for the benefit of Lender and shall forthwith be paid to
Lender to be credited and applied to the Guaranteed Obligations, whether
matured or unmatured.


 


(c)                                  The
provisions of this Section 1.10 shall survive the termination of this
Guaranty, and any satisfaction and discharge of Borrower by virtue of any
payment, court order or any applicable law.


 


Section 1.11                                “BORROWER”. The
term “Borrower” as used herein shall include any new or successor
corporation, association, partnership (general or limited), joint venture, limited
liability company, trust or other individual or organization formed as a result
of any merger, reorganization, sale, transfer, devise, gift or bequest of
Borrower or any interest in Borrower.


 


ARTICLE 2

EVENTS AND CIRCUMSTANCES NOT REDUCING OR DISCHARGING

GUARANTOR’S OBLIGATIONS


 


Guarantor hereby consents and agrees to each of the following, and
agrees that Guarantor’s obligations under this Guaranty shall not be released,
diminished, impaired, reduced or adversely affected by any of the following,
and waives any common law, equitable, statutory or other rights (including
without limitation rights to notice, other than notices which Guarantor is
specifically entitled to receive hereunder or which Borrower is entitled to
receive under the Loan Documents) which Guarantor might otherwise have as a
result of or in connection with any of the following:


 


Section 2.1                                      MODIFICATIONS.
Any renewal, extension, increase, modification, alteration or rearrangement of
all or any part of the Guaranteed Obligations, Note, Loan Documents, or other
document, instrument, contract or understanding between Borrower and


 


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Lender, or any
other parties, pertaining to the Guaranteed Obligations or any failure of
Lender to notify Guarantor of any such action.


 


Section 2.2                                      ADJUSTMENT.
Any adjustment, indulgence, forbearance or compromise that might be granted or
given by Lender to Borrower or Guarantor.


 


Section 2.3                                      CONDITION OF
BORROWER OR GUARANTOR. The insolvency, bankruptcy, arrangement, adjustment,
composition, liquidation, disability, dissolution or lack of power of Borrower,
Guarantor or any other Person at any time liable for the payment of all or part
of the Guaranteed Obligations; or any dissolution of Borrower or Guarantor, or
any sale, lease or transfer of any or all of the assets of Borrower or
Guarantor, or any changes in the shareholders, partners or members of Borrower
or Guarantor; or any reorganization of Borrower or Guarantor.


 


Section 2.4                                      INVALIDITY OF
GUARANTEED OBLIGATIONS. The invalidity, illegality or unenforceability of
all or any part of the Guaranteed Obligations, or any document or agreement
executed in connection with the Guaranteed Obligations, for any reason
whatsoever, including without limitation the fact that (i) the Guaranteed
Obligations, or any part thereof, exceed the amount permitted by law, (ii) the
act of creating the Guaranteed Obligations, or any part thereof, is ultra
vires, (iii) the officers or representatives executing the Note or the
other Loan Documents or otherwise creating the Guaranteed Obligations acted in
excess of their authority, (iv) the Guaranteed Obligations violate
applicable usury laws, (v) Borrower has valid defenses, claims or offsets
(whether at law, in equity or by agreement) which render the Guaranteed
Obligations wholly or partially uncollectible from Borrower, (vi) the
creation, performance or repayment of the Guaranteed Obligations (or the
execution, delivery and performance of any document or instrument representing
part of the Guaranteed Obligations or executed in connection with the
Guaranteed Obligations, or given to secure the repayment of the Guaranteed
Obligations) is illegal, uncollectible or unenforceable, or (vii) the Note
or any of the other Loan Documents has been forged or otherwise is irregular or
not genuine or authentic, it being agreed that Guarantor shall remain liable
hereon regardless of whether Borrower or any other Person be found not liable
on the Guaranteed Obligations or any part thereof for any reason.


 


Section 2.5                                      RELEASE OF
OBLIGORS. Any full or partial release of the liability of Borrower on the
Guaranteed Obligations, or any part thereof, or of any co-guarantors, or any
other Person or entity now or hereafter liable, whether directly or indirectly,
jointly, severally, or jointly and severally, to pay, perform, guarantee or
assure the payment of the Guaranteed Obligations, or any part thereof, it being
recognized, acknowledged and agreed by Guarantor that Guarantor may be required
to pay the Guaranteed Obligations in full without assistance or support of any
other Person, and Guarantor has not been induced to enter into this Guaranty on
the basis of a contemplation, belief, understanding or agreement that other
parties will be liable to pay or perform the Guaranteed Obligations, or that
Lender will look to other parties to pay or perform the Guaranteed Obligations.


 


Section 2.6                                      OTHER
COLLATERAL. The taking or accepting of any other security, collateral or
guaranty, or other assurance of payment, for all or any part of the Guaranteed
Obligations.


 


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Section 2.7                                      RELEASE OF
COLLATERAL. Any release, surrender, exchange, subordination, deterioration,
waste, loss or impairment (including without limitation negligent, willful,
unreasonable or unjustifiable impairment) of any collateral, property or
security at any time existing in connection with, or assuring or securing
payment of, all or any part of the Guaranteed Obligations.


 


Section 2.8                                      CARE AND
DILIGENCE. The failure of Lender or any other Person to exercise diligence
or reasonable care in the preservation, protection, enforcement, sale or other
handling or treatment of all or any part of any collateral, property or
security, including but not limited to any neglect, delay, omission, failure or
refusal of Lender (i) to take or prosecute any action for the collection
of any of the Guaranteed Obligations, (ii) to foreclose, or initiate any
action to foreclose, or, once commenced, prosecute to completion any action to
foreclose upon any security therefor, or (iii) to take or prosecute any
action in connection with any instrument or agreement evidencing or securing
all or any part of the Guaranteed Obligations.


 


Section 2.9                                      UNENFORCEABILITY.
The fact that any collateral, security, security interest or lien contemplated
or intended to be given, created or granted as security for the repayment of
the Guaranteed Obligations, or any part thereof, shall not be properly
perfected or created, or shall prove to be unenforceable or subordinate to any
other security interest or lien, it being recognized and agreed by Guarantor
that Guarantor is not entering into this Guaranty in reliance on, or in
contemplation of the benefits of, the validity, enforceability, collectibility or
value of any of the collateral for the Guaranteed Obligations.


 


Section 2.10                                MERGER. The
reorganization, merger or consolidation of Borrower into or with any other
corporation or entity.


 


Section 2.11                                PREFERENCE. Any
payment by Borrower to Lender is held to constitute a preference under
bankruptcy laws, or for any reason Lender is required to refund such payment or
pay such amount to Borrower or someone else.


 


Section 2.12                                OTHER ACTIONS TAKEN
OR OMITTED. Any other action taken or omitted to be taken with respect to
the Loan Documents, the Guaranteed Obligations, or the security and collateral
therefor, whether or not such action or omission prejudices Guarantor or
increases the likelihood that Guarantor will be required to pay the Guaranteed
Obligations pursuant to the terms hereof, it is the unambiguous and unequivocal
intention of Guarantor that Guarantor shall be obligated to pay the Guaranteed
Obligations when due, notwithstanding any occurrence, circumstance, event,
action, or omission whatsoever, whether or not contemplated, and whether or not
otherwise or particularly described herein, which obligation shall be deemed
satisfied only upon the full and final payment and satisfaction of the
Guaranteed Obligations.


 


ARTICLE 3

REPRESENTATIONS AND WARRANTIES


 


To induce Lender to enter into the Loan Documents and extend credit to
Borrower, Guarantor represents and warrants to Lender as follows:


 


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Section 3.1                                      BENEFIT. Guarantor
is an Affiliate of Borrower, is the owner of a direct or indirect interest in
Borrower, and has received, or will receive, direct or indirect benefit from
the making of this Guaranty with respect to the Guaranteed Obligations.


 


Section 3.2                                      FAMILIARITY
AND RELIANCE. Guarantor is familiar with, and has independently reviewed
books and records regarding, the financial condition of Borrower and is
familiar with the value of any and all collateral intended to be created as
security for the payment of the Note or Guaranteed Obligations; provided,
however, Guarantor is not relying on such financial condition or the collateral
as an inducement to enter into this Guaranty.


 


Section 3.3                                      NO
REPRESENTATION BY LENDER. Neither Lender nor any other Person has made any
representation, warranty or statement to Guarantor in order to induce Guarantor
to execute this Guaranty.


 


Section 3.4                                      GUARANTOR’S
FINANCIAL CONDITION. As of the date hereof, and after giving effect to this
Guaranty and the contingent obligation evidenced hereby, Guarantor is, and will
be, Solvent.


 


Section 3.5                                      LEGALITY. The
execution, delivery and performance by Guarantor of this Guaranty and the
consummation of the transactions contemplated hereunder do not, and will not,
contravene or conflict with any law, statute or regulation whatsoever to which
Guarantor is subject or constitute a default (or an event which with notice or
lapse of time or both would constitute a default) under, or result in the
breach of, any indenture, mortgage, deed of trust, charge, lien, or any
contract, agreement or other instrument to which Guarantor is a party or which
may be applicable to Guarantor. This Guaranty is a legal and binding obligation
of Guarantor and is enforceable in accordance with its terms, except as limited
by bankruptcy, insolvency or other laws of general application relating to the
enforcement of creditors’ rights.


 


Section 3.6                                      SURVIVAL. All
representations and warranties made by Guarantor herein shall survive the
execution hereof.


 


Section 3.7                                      REVIEW OF
DOCUMENTS. Guarantor has examined the Note and all of the Loan Documents.


 


Section 3.8                                      LITIGATION.
Except as otherwise disclosed to Lender, there are no proceedings pending or,
so far as Guarantor knows, threatened before any court or administrative agency
which, if decided adversely to Guarantor, would materially adversely affect the
financial condition of Guarantor or the authority of Guarantor to enter into,
or the validity or enforceability of, this Guaranty.


 


Section 3.9                                      TAX RETURNS.
Guarantor has filed all required federal, state and local tax returns and has
paid all taxes as shown on such returns as they have become due. No claims have
been assessed and are unpaid with respect to such taxes.


 


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ARTICLE 4

SUBORDINATION OF CERTAIN INDEBTEDNESS


 


Section 4.1                                      SUBORDINATION
OF ALL GUARANTOR CLAIMS. As used herein, the term “Guarantor Claims”
shall mean all debts and liabilities of Borrower to Guarantor, whether such
debts and liabilities now exist or are hereafter incurred or arise, or whether
the obligations of Borrower thereon are direct, contingent, primary, secondary,
several, joint and several, or otherwise, and irrespective of whether such
debts or liabilities be evidenced by note, contract, open account, or
otherwise, and irrespective of the Person or Persons in whose favor such debts
or liabilities may, at their inception, have been, or may hereafter be created,
or the manner in which they have been or may hereafter be acquired by Guarantor.
To the extent the provisions of Section 1.10 hereof are
unenforceable, the Guarantor Claims shall include, without limitation, all
rights and claims of Guarantor against Borrower (arising as a result of
subrogation or otherwise) as a result of Guarantor’s payment of all or a
portion of the Guaranteed Obligations. Upon the occurrence and during the
continuance of an Event of Default, Guarantor shall not receive or collect,
directly or indirectly, from Borrower any amount upon the Guarantor Claims.


 


Section 4.2                                      CLAIMS IN
BANKRUPTCY. In the event of receivership, bankruptcy, reorganization,
arrangement, debtor’s relief, or other insolvency proceedings involving
Guarantor as debtor, Lender shall have the right to prove its claim in any such
proceeding so as to establish its rights hereunder and receive directly from
the receiver, trustee or other court custodian dividends and payments which
would otherwise be payable upon Guarantor Claims. Guarantor hereby assigns such
dividends and payments to Lender. Should Lender receive, for application upon
the Guaranteed Obligations, any such dividend or payment which is otherwise
payable to Guarantor, and which, as between Borrower and Guarantor, shall
constitute a credit upon the Guarantor Claims, then upon payment to Lender in
full of the Guaranteed Obligations, Guarantor shall become subrogated to the
rights of Lender to the extent that such payments to Lender on the Guarantor
Claims have contributed toward the liquidation of the Guaranteed Obligations,
and such subrogation shall be with respect to that portion of the Guaranteed
Obligations which would have been unpaid if Lender had not received dividends
or payments upon the Guarantor Claims.


 


Section 4.3                                      PAYMENTS HELD
IN TRUST. In the event that, notwithstanding anything to the contrary in
this Guaranty, Guarantor should receive any funds, payment, claim or
distribution which is prohibited by this Guaranty, Guarantor agrees to hold in
trust for Lender an amount equal to the amount of all funds, payments, claims
or distributions so received, and agrees that it shall have absolutely no
dominion over the amount of such funds, payments, claims or distributions so
received except to pay them promptly to Lender, and Guarantor covenants
promptly to pay the same to Lender.


 


Section 4.4                                      LIENS
SUBORDINATE. Guarantor agrees that any liens, security interests, judgment
liens, charges or other encumbrances upon Borrower’s assets securing payment of
the Guarantor Claims shall be and remain inferior and subordinate to any liens,
security interests, judgment liens, charges or other encumbrances upon Borrower’s
assets securing payment of the Guaranteed Obligations, regardless of whether
such encumbrances in favor of Guarantor or Lender presently exist or are
hereafter created or attach. Without the prior written consent of Lender,
Guarantor shall not (i) exercise or enforce any creditor’s right it may
have against Borrower, or (ii) foreclose, repossess, sequester or
otherwise take steps or institute any action or proceedings (judicial or
otherwise, including without limitation the commencement of, or joinder in, any
liquidation, bankruptcy, rearrangement, debtor’s relief or insolvency
proceeding) to


 


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enforce any
liens, mortgages, deeds of trust, security interests, collateral rights,
judgments or other encumbrances on assets of Borrower held by Guarantor.


 


ARTICLE 5

MISCELLANEOUS


 


Section 5.1                                      NO WAIVER;
REMEDIES CUMULATIVE. No failure or delay on the part of Lender in
exercising any right, remedy, power or privilege hereunder or under the other
Loan Documents and no course of dealing between Guarantor and Lender shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder or under the other Loan Documents
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege hereunder or thereunder. The rights and
remedies provided herein and in the other Loan Documents are cumulative and not
exclusive of any rights or remedies provided by law. The giving of notice to or
demand on Guarantor, which notice or demand is not required hereunder or under
the other Loan Documents (except as otherwise provided herein or therein),
shall not entitle Guarantor to any other or further notice or demand in similar
or other circumstances or constitute a waiver of the rights, remedies, powers
or privileges of Lender in any circumstances not requiring notice or demand.


 


Section 5.2                                      NOTICES. All
notices, requests and other communications to any party hereunder or under the
Note shall be given in the manner set forth in Article XI of the Security
Instrument, and to each addressee at the address set forth below:


 


Guarantor:                                                                                                                                        Beacon
Capital Strategic Partners IV, L.P.

c/o Beacon Capital Partners, LLC

One Federal Street

Boston, Massachusetts 02110

Attn:  General Counsel

Facsimile No.:  (617) 457-0499


 


With a copy to:                                                                                                             Goulston &
Storrs, P.C.

400 Atlantic Avenue

Boston, Massachusetts 02110 

Attn:   Robert J. Mack, Esq.

Facsimile No.:   (617) 574-7613


 


Lender:                                                                                                                                                        Wachovia
Bank, National Association

Commercial Real Estate Services 

8739 Research Drive URP 4 

NC 1075 

Charlotte, North Carolina 28262

Facsimile No.:  (704) 715-0056


 


With a copy to:                                                                                                             Proskauer
Rose LLP

1585 Broadway




10

















 


New York, New York  10036 

Attn:   David J. Weinberger, Esq.

Facsimile No.:   (212) 969-2900


 


or such other
address as Guarantor or Lender shall hereafter specify by not less than ten (10) days
prior written notice as provided herein; provided, however, that
notwithstanding any provision of this Section to the contrary, such notice
of change of address shall be deemed given only upon actual receipt thereof. Rejection
or other refusal to accept or the inability to deliver because of changed
addresses of which no notice was given as herein required shall be deemed to be
receipt of the notice, demand, statement, request or consent.


 


Section 5.3                                      GOVERNING LAW;
JURISDICTION. This Guaranty shall be governed by and construed in
accordance with the laws of the State of Illinois and the applicable laws of
the United States of America. Guarantor hereby irrevocably submits to the
jurisdiction of any court of competent jurisdiction located in the State of
Illinois in connection with any proceeding arising out of or relating to this
Guaranty.


 


Section 5.4                                      INVALID
PROVISIONS. If any provision of this Guaranty is held to be invalid,
illegal or unenforceable in any respect, this Guaranty shall be construed
without such provision.


 


Section 5.5                                      AMENDMENTS.
The terms of this Guaranty, together with the terms of the other Loan
Documents, constitute the entire understanding and agreement of the parties
hereto and supersede all prior agreements, understandings and negotiations
between Guarantor and Lender with respect to the Guaranteed Obligations. This
Guaranty, and any provisions hereof, may not be modified, amended, waived,
extended, changed, discharged or terminated orally or by any act on the part of
Guarantor or Lender, but only by an agreement in writing signed by the party
against whom enforcement of any modification, amendment, waiver, extension,
change, discharge or termination is sought.


 


Section 5.6                                      PARTIES BOUND;
ASSIGNMENT. This Guaranty
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors, assigns and legal representatives; provided, however,
that Guarantor may not, without the prior written consent of Lender, assign any
of its rights, powers, duties or obligations hereunder.


 


Section 5.7                                      HEADINGS;
CONSTRUCTION OF DOCUMENTS; DEFINITIONS. The headings and captions of
various sections of this Guaranty are for convenience of reference only and are
not to be construed as defining or limiting, in any way, the scope or intent of
the provisions hereof. Guarantor acknowledges that it was represented by
competent counsel in connection with the negotiation and drafting of this
Guaranty and the other Loan Documents and that neither this Guaranty nor the
other Loan Documents shall be subject to the principle of construing the meaning
against the Person who drafted same. All capitalized terms not otherwise
defined herein shall have the meanings set forth in the Security Instrument.


 


Section 5.8                                      RECITALS. The
recital and introductory paragraphs hereof are a part hereof, form a basis for
this Guaranty and shall be considered prima facie evidence of the facts
and documents referred to therein.


 


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Section 5.9                                      COUNTERPARTS.
To facilitate execution, this Guaranty may be executed in as many counterparts
as may be convenient or required. It shall not be necessary that the signature
or acknowledgment of, or on behalf of, each party, or that the signature of all
Persons required to bind any party, or the acknowledgment of such party, appear
on each counterpart. All counterparts shall collectively constitute a single
instrument. It shall not be necessary in making proof of this Guaranty to
produce or account for more than a single counterpart containing the respective
signatures of, or on behalf of, and the respective acknowledgments of, each of
the parties hereto. Any signature or acknowledgment page to any
counterpart may be detached from such counterpart without impairing the legal
effect of the signatures or acknowledgments thereon and thereafter attached to
another counterpart identical thereto except having attached to it additional
signature or acknowledgment pages.


 


Section 5.10                                CUMULATIVE RIGHTS.
The rights of Lender under this Guaranty shall be separate, distinct and
cumulative and none shall be given effect to the exclusion of the others. No
act of Lender shall be construed as an election to proceed under any one
provision herein to the exclusion of any other provision. Lender shall not be
limited exclusively to the rights and remedies herein stated but shall be
entitled, subject to the terms of this Guaranty, to every right and remedy now
or hereafter afforded by law.


 


Section 5.11                                WAIVER OF RIGHT TO
TRIAL BY JURY. EACH OF GUARANTOR AND LENDER WAIVES TRIAL BY JURY IN ANY
ACTION OR PROCEEDING BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER OR IN ANY
COUNTERCLAIM ASSERTED BY GUARANTOR OR BY LENDER OR ITS AGENTS, OR IN ANY
MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS GUARANTY,
THE DEBT OR THE GUARANTEED OBLIGATIONS.


 


*****


 


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IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty as of the
day and year first above written.


 


	
   

  	
  BEACON
  CAPITAL STRATEGIC PARTNERS IV, L.P.,

  
	
   

  	
  a Delaware
  limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  BCP Strategic
  Partners IV, L.P., a Delaware

  
	
   

  	
   

  	
  limited
  partnership, its general partner

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  BCP
  Strategic Partners IV GP, LLC, a Delaware limited

  
	
   

  	
   

  	
  liability
  company, its general partner

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Beacon
  Capital Partners, LLC, a Delaware

  limited liability company, its member

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Nancy J.
  Broderick

  
	
   

  	
   

  	
  Managing
  Director