Exhibit 10.8


 


GUARANTY OF RECOURSE OBLIGATIONS


 


This GUARANTY  OF RECOURSE OBLIGATIONS (this “Guaranty”)
is executed as of January 30, 2006, by BEACON
CAPITAL STRATEGIC PARTNERS IV, L.P., a Delaware limited partnership (whether
one or more collectively referred to as “Guarantor”),
for the benefit of LEHMAN BROTHERS BANK FSB,
a federal stock savings bank having an address at 399 Park Avenue, 8th
Floor, New York, New York 10022 (“Lender”).


 


W I T N E S S E T H:


 


WHEREAS, pursuant to that
certain Promissory Note dated of even date herewith, executed by 200 SOUTH WACKER PROPERTY LLC, a Delaware limited liability
company (“Borrower”) and payable to the order of Lender
in the principal amount of Ninety-Five Million Five Hundred Thousand and No/100
Dollars ($95,500,000.00) (together with all renewals, modifications, increases
and extensions thereof, the “Note”),
Borrower has become indebted, and may from time to time be further indebted, to
Lender with respect to a loan (the “Loan”)
which is made pursuant to that certain Loan Agreement, dated of even date
herewith, between Borrower and Lender (the “Loan
Agreement”);


 


WHEREAS, 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 herein defined); and


 


WHEREAS, 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


 


1.1                               Guaranty
of Obligation. Guarantor (but not its members, partners, employees,
shareholders, agents, directors or officers) hereby 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 by lapse of time, by acceleration of maturity or otherwise. Guarantor
(but not its members, partners, employees, shareholders, agents, directors or
officers) hereby irrevocably and unconditionally covenants and agrees that it
is liable for the Guaranteed Obligations as a primary obligor.


 

















 


1.2                               Definition
of Guaranteed Obligations. As used herein, the term “Guaranteed Obligations” means the
obligations or liabilities of Borrower to Lender for which Borrower shall be
personally liable under the provisions of Section 11.22 of the Loan
Agreement (other than (A) the events described in subsection (c) thereof
with respect to environmental matters and (B) subsection (h) thereof).


 


1.3                               Nature
of Guaranty. This Guaranty is an irrevocable, absolute, continuing
guaranty of payment and performance and not a guaranty of collection. This
Guaranty may not be revoked by Guarantor and 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 fact that at any
time or 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.


 


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 of Borrower or any other party 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.


 


1.5                               Payment
By Guarantor. If all or any part of the Guaranteed Obligations shall
not be punctually paid when due (beyond any and all notice, grace or cure
periods), whether at demand, maturity, acceleration or otherwise, Guarantor
shall, within five (5) Business Days of 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.


 


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 the obligations of Guarantor hereunder, 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 or take any other action to reduce, collect or enforce the
Guaranteed Obligations.


 


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1.7                               Waivers.
Guarantor agrees to the provisions of the Loan Documents and 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, the
Mortgage, the Loan Agreement 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 an 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 (other that those specifically
required hereunder) 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.


 


1.8                               Payment
of Expenses. In the event that Guarantor should breach or fail to
timely perform any provisions of this Guaranty, Guarantor shall, immediately
upon 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.


 


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, 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.


 


1.10                        Waiver
of Subrogation, Reimbursement and Contribution. Notwithstanding
anything to the contrary contained in this Guaranty, until the Debt is paid in
full, Guarantor hereby unconditionally and irrevocably waives, releases and
abrogates any and all rights it may now or hereafter have under any agreement,
at law or in equity (including, without limitation, any law subrogating the
Guarantor to the rights of Lender), to assert any claim against or seek
contribution, indemnification or any other form of reimbursement from Borrower
or any collateral for any or all of the Guaranteed Obligations for any payment
made by Guarantor under or in connection with this Guaranty or otherwise.


 


1.11                        Borrower.
The term “Borrower” as used herein shall
include any new or successor corporation, association, partnership (general or
limited), limited liability company joint venture, 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.


 


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ARTICLE II


 


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) which Guarantor might otherwise
have as a result of or in connection with any of the following:


 


2.1                               Modifications.
Any renewal, extension, increase, modification, alteration or rearrangement
of the Note, the Mortgage, the Loan Agreement, the other Loan Documents or any
other document, instrument, contract or understanding between Borrower and
Lender or any other parties pertaining to the Loan or any failure of Lender to
notify Guarantor of any such action.


 


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


 


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 party 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.


 


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 exceeds 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, the Mortgage, the Loan Agreement 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) the
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, the Mortgage, the Loan Agreement or any
of the other Loan Documents have been forged or otherwise are 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.


 


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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 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 party, 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.


 


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.


 


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.


 


2.8                               Care
and Diligence. The failure of Lender or any other party 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 or (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.


 


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.


 


2.10                        Offset.           The Note, the
Guaranteed Obligations and the liabilities and obligations of the Guarantor to
Lender hereunder shall not be reduced, discharged or released because of or by
reason of any existing or future right of offset, claim or defense of Borrower
against Lender, or any other party, or against payment of the Guaranteed
Obligations, whether such right of offset, claim or defense arises in
connection with the Guaranteed Obligations (or the transactions creating the
Guaranteed Obligations) or otherwise.


 


2.11                        Merger.
The reorganization, merger or consolidation of Borrower into or with any
other Person.


 


5

















 


2.12                        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.


 


2.13                        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 contemplated or
uncontemplated, 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 III


 


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:


 


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.


 


3.2                               Familiarity
and Reliance. Guarantor is familiar with, and has independently reviewed
books and records regarding, the financial condition of the 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; however,
Guarantor is not relying on such financial condition or the collateral as an
inducement to enter into this Guaranty.


 


3.3                               No
Representation By Lender. Neither Lender nor any other party has made
any representation, warranty or statement to Guarantor in order to induce the
Guarantor to execute this Guaranty.


 


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 and has and will have assets which, fairly valued, exceed its
obligations, liabilities (including contingent liabilities) and debts, and has
and will have property and assets sufficient to satisfy and repay its
obligations and liabilities.


 


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, charge, lien, or any contract, agreement or
other instrument to which Guarantor is a party or which may be 


 


6

















 


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.


 


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


 


ARTICLE IV


 


SUBORDINATION OF CERTAIN
INDEBTEDNESS


 


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 be 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. 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. After the occurrence and during the
continuance of an Event of Default or the occurrence and during the continuance
of a payment default which would, with the giving of notice or the passage of
time, or both, constitute an Event of Default, Guarantor shall not receive or
collect, directly or indirectly, from Borrower any amount upon the Guarantor
Claims.


 


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 against the Guaranteed Obligations, any dividend or payment
which is otherwise payable to Guarantor and which, as between Borrower and
Guarantor, shall constitute a credit against 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 proportion
of the Guaranteed Obligations which would have been unpaid if Lender had not
received dividends or payments upon the Guarantor Claims.


 


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 


 


7

















 


distributions so received except to pay them promptly to Lender, and
Guarantor covenants promptly to pay the same to Lender.


 


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


 


ARTICLE V


 


MISCELLANEOUS


 


5.1                               Waiver.
No failure to exercise, and no delay in exercising, on the part of Lender,
any right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right. The rights of Lender hereunder shall be in
addition to all other rights provided by law. No modification or waiver of any
provision of this Guaranty, nor consent to departure therefrom, shall be
effective unless in writing and no such consent or waiver shall extend beyond
the particular case and purpose involved. No notice or demand given in any case
shall constitute a waiver of the right to take other action in the same,
similar or other instances without such notice or demand.


 


5.2                               Notices.    All notices given hereunder
shall be in writing and shall be either hand delivered or mailed, by registered
or certified U.S. mail, Return Receipt Requested, first class postage prepaid,
to the parties at their respective addresses below or at such other address for
any party as such party may designate by notice to the other parties hereto:


 


	
  If to Lender:

  	
  Lehman Brothers
  Bank FSB

  1000 West Street, Suite 200

  Wilmington, Delaware 19801

  Attention: Charles Manna

  Facsimile No. (646) 758-4071

  
	
   

  	
   

  
	
  with a copy to:

  	
  Lehman Brothers
  Holdings Inc.

  399 Park Avenue, 8th Floor

  New York, New York 10022

  Attention: Charles Manna

  Facsimile No. (646) 758-4071

  



 


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  with a copy to:

  	
  Cadwalader, Wickersham & Taft LLP

  One World Financial Center

  New York, New York 10281

  Attention: Fredric L. Altschuler, Esq.

  Facsimile No. (212) 504-6666

  
	
   

  	
   

  
	
  If to Guarantor:

  	
  Beacon Capital
  Strategic Partners IV, L.P.

  c/o Beacon Capital Partners, LLC

  One Federal Street

  Boston, Massachusetts 02110

  Attention: General Counsel

  Facsimile No. (617) 457-0499

  
	
   

  	
   

  
	
  with a copy to:

  	
  Goulston &
  Storrs

  400 Atlantic Avenue

  Boston, Massachusetts 02110

  Attention: Robert J. Mack, Esq.

  Facsimile No. (617) 574-6595

  



 


5.3                               Governing
Law. This Guaranty shall be governed by and construed in accordance
with the laws of the State of New York and the applicable laws of the United
States of America. Any legal suit, action or proceeding against Lender or
Guarantor arising out of or relating to this Guaranty may at Lender’s option be
instituted in any Federal or State court in the City of New York, County of New
York, pursuant to Section 5-1402 of the New York General Obligations Law
and Guarantor waives any objections which it may now or hereafter have based on
venue and/or forum non conveniens of any such suit, action or proceeding, and
Guarantor hereby irrevocably submits to the jurisdiction of any such court in
any suit, action or proceeding. Guarantor does hereby designate and appoint:


 


GOULSTON & STORRS,
PC

750 THIRD AVENUE, 22ND FLOOR

NEW YORK, NEW YORK 10017


 


as its authorized agent to accept and acknowledge on
its behalf service of any and all process which may be served in any such suit,
action or proceeding in any Federal or State court in New York, New York, and
agrees that service of process upon said agent at said address and written
notice of said service mailed or delivered to Guarantor in the manner provided
herein shall be deemed in every respect effective service of process upon
Guarantor in any such suit, action or proceeding in the State of New York.


 


5.4                               Invalid
Provisions. If any provision of this Guaranty is held to be illegal,
invalid, or unenforceable under present or future laws effective during the
term of this Guaranty, such provision shall be fully severable and this
Guaranty shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of this Guaranty, and the remaining
provisions of this Guaranty shall remain in full force and effect and shall not
be affected by the illegal, invalid or unenforceable provision or by its
severance from this Guaranty, 


 


9

















 


unless such continued effectiveness of this Guaranty, as modified,
would be contrary to the basic understandings and intentions of the parties as
expressed herein.


 


5.5                               Amendments.
This Guaranty may be amended only by an instrument in writing executed by
the party or an authorized representative of the party against whom such
amendment is sought to be enforced.


 


5.6                               Parties
Bound; Assignment; Joint and Several. 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. If Guarantor consists of more than one person
or party, the obligations and liabilities of each such person or party shall be
joint and several.


 


5.7                               Headings.
Section headings are for convenience of reference only and shall in no
way affect the interpretation of this Guaranty.


 


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.


 


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
of, or on behalf of, each party, or that the signature of all persons required
to bind any 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, each of
the parties hereto. Any signature page to any counterpart may be detached
from such counterpart without impairing the legal effect of the signatures
thereon and thereafter attached to another counterpart identical thereto except
having attached to it additional signature pages.


 


5.10                        Rights
and Remedies. If Guarantor becomes liable for any indebtedness owing by
Borrower to Lender, by endorsement or otherwise, other than under this
Guaranty, such liability shall not be in any manner impaired or affected hereby
and the rights of Lender hereunder shall be cumulative of any and all other
rights that Lender may ever have against Guarantor. The exercise by Lender of
any right or remedy hereunder or under any other instrument, or at law or in
equity, shall not preclude the concurrent or subsequent exercise of any other
right or remedy.


 


5.11                        Other
Defined Terms. Any capitalized term utilized herein shall have the
meaning as specified in the Loan Agreement, unless such term is otherwise
specifically defined herein.


 


5.12                        Entirety.
THIS GUARANTY EMBODIES THE FINAL, ENTIRE AGREEMENT OF GUARANTOR AND LENDER WITH
RESPECT TO GUARANTOR’S GUARANTY OF THE GUARANTEED OBLIGATIONS AND SUPERSEDES
ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS,
WHETHER WRITTEN OR ORAL, 


 


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RELATING TO THE SUBJECT MATTER HEREOF. THIS
GUARANTY IS INTENDED BY GUARANTOR AND LENDER AS A FINAL AND COMPLETE EXPRESSION
OF THE TERMS OF THE GUARANTY, AND NO COURSE OF DEALING BETWEEN GUARANTOR AND
LENDER, NO COURSE OF PERFORMANCE, NO TRADE PRACTICES, AND NO EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSIC
EVIDENCE OF ANY NATURE SHALL BE USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY
ANY TERM OF THIS GUARANTY AGREEMENT. THERE ARE NO ORAL AGREEMENTS BETWEEN
GUARANTOR AND LENDER.


 


5.13                        Waiver
of Right To Trial By Jury. GUARANTOR AND LENDER HEREBY AGREE NOT TO ELECT A
TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVE ANY RIGHT TO
TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER
EXIST WITH REGARD TO THIS GUARANTY, THE NOTE, THE MORTGAGE, THE LOAN AGREEMENT,
OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING
IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN
KNOWINGLY AND VOLUNTARILY BY GUARANTOR AND LENDER, AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY
JURY WOULD OTHERWISE ACCRUE. GUARANTOR AND LENDER ARE HEREBY AUTHORIZED TO FILE
A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS
WAIVER BY GUARANTOR AND LENDER.


 


5.14                        Cooperation.
Guarantor acknowledges that Lender and its successors and assigns may (i) sell
this Guaranty, the Note and other Loan Documents to one or more investors as a
whole loan, (ii) participate the Loan secured by this Guaranty to one or
more investors, (iii) deposit this Guaranty, the Note and other Loan
Documents with a trust, which trust may sell certificates to investors
evidencing an ownership interest in the trust assets, or (iv) otherwise
sell the Loan or interest therein to investors (the transactions referred to in
clauses (i) through (iv) are hereinafter each referred to as “Secondary Market Transaction”). Guarantor
shall reasonably cooperate with Lender in effecting any such Secondary Market
Transaction and shall reasonably cooperate to satisfy the market standards to
which Lender customarily adheres or which may be reasonably required in the
marketplace or by the Rating Agencies in connection with any Secondary Market
Transaction. Guarantor shall provide such information and documents relating to
Guarantor as Lender may reasonably request in connection with such Secondary
Market Transaction. In addition, Guarantor shall make available to Lender all
information concerning its business and operations that Lender may reasonably
request, provided that, other than with respect to any financial statements of
Guarantor, Lender shall keep confidential any information that Guarantor deems
in good faith to be of a confidential nature. Lender shall be permitted to
share all such information with the investment banking firms, Rating Agencies,
accounting firms, law firms and other third-party advisory firms involved with
the Loan and the Loan Documents or the applicable Secondary Market Transaction.
It is understood that the information provided by Guarantor to Lender may
ultimately be incorporated into the offering documents for the Secondary Market
Transaction and thus various investors may also see some 


 


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or all of the information. Lender and all of the aforesaid third-party
advisors and professional firms shall be entitled to rely on the information
supplied by, or on behalf of, Guarantor in the form as provided by Guarantor,
provided, however, Guarantor shall not be liable for any false information or
failure to disclose a material fact unless such disclosure or failure to
disclose was fraudulent or grossly negligent. Lender may publicize the existence
of the Loan in connection with its marketing for a Secondary Market Transaction
or otherwise as part of its business development. Lender shall reimburse
Guarantor for all reasonable third party fees (including reasonable fees and
disbursements of Guarantor’s attorneys) actually incurred by Guarantor pursuant
to this Section 5.14.


 


5.15                        Reinstatement
in Certain Circumstances. If at any time any payment on account of any
Guaranteed Obligation is rescinded or must be otherwise restored or returned
upon the insolvency, bankruptcy or reorganization of the Borrower or otherwise,
the Guarantor’s obligations hereunder with respect to such payment shall be
reinstated as though such payment has been due but not made at such time.


 


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EXECUTED as of the day and year first above written.


 


	
  GUARANTOR:

  
	
   

  
	
  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 IV GP,
  LLC, a Delaware limited

  liability company, its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Beacon Capital
  Partners, LLC, a Delaware

  limited liability company, its Sole Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
   

  	
  Title: