Exhibit 10.9


 


GUARANTY OF RECOURSE OBLIGATIONS


 


This GUARANTY  OF RECOURSE OBLIGATIONS (this “Guaranty”)
is executed as of October 3, 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 MERRILL LYNCH MORTGAGE LENDING, INC., a Delaware
corporation, having an address at 4 World Financial Center, New York, New York 10080
(together with its successors and assigns, “Lender”),
in its capacity as the holder of the Note B (as herein defined) (Lender in such
capacity, “Note B Holder”).


 


W I T N E S S E T H:


 


WHEREAS, Borrower by that
certain Promissory Note A (together with all renewals, modifications,
substitutions and amendments thereof, the “Note A”) and
that certain Promissory Note B (together with all renewals, modifications,
substitutions and amendments thereof, the “Note B”), each dated the date hereof and given to
Lender (the Note A and the Note B, collectively, the “Note”), is indebted to Lender in the aggregate principal sum
of Two Hundred Twenty-Five Million and No/100 Dollars ($225,000,000.00)
advanced pursuant to that certain Loan Agreement of even date herewith between
Borrower and Lender (together
with all extensions, renewals, modifications, substitutions and amendments
thereof, the “Loan Agreement”), in lawful
money of the United States of America, with interest from the date thereof at
the rates set forth in the Note (the indebtedness evidenced by the Note shall
be referred to collectively as the “Loan”),
principal and interest to be payable in accordance with the terms and
conditions provided in the Note;


 


WHEREAS, Lender is not willing to make the Loan, or otherwise extend
credit, to Borrower unless Guarantor unconditionally guarantees payment and
performance to Note B Holder 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 Note B Holder 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 Note B Holder for which Borrower
shall be personally liable under the provisions of Section 11.22 of the
Loan Agreement (other than subsection (j) 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 Note B
Holder with respect to the Guaranteed Obligations. This Guaranty may be
enforced by Note B Holder and any subsequent holder of the Note B and shall not
be discharged by the assignment or negotiation of all or part of the Note B.


 


1.4                               Guaranteed
Obligations Not Reduced by Offset. The Guaranteed Obligations and the
liabilities and obligations of Guarantor to Note B Holder 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 Note B Holder 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 Note B Holder at Note
B Holder’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 Note B Holder (and
Guarantor hereby waives any rights which Guarantor may have to require Note B
Holder), 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
any portion thereof) or the Guaranteed Obligations or any other person, (ii) enforce
Note B Holder’s rights against any collateral which shall ever have been given
to secure the Loan (or any portion thereof), (iii) 


 


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enforce Note B Holder’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 Note B Holder against any collateral which shall ever
have been given to secure the Loan (or any portion thereof), or (vi) resort
to any other means of obtaining payment of the Guaranteed Obligations. Note B
Holder shall not be required to mitigate damages or take any other action to
reduce, collect or enforce the Guaranteed Obligations.


 


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 B, 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) Note B Holder’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 Note B Holder
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 Note B Holder, pay Note B Holder all costs and expenses
(including court costs and reasonable attorneys’ fees) incurred by Note B
Holder in the enforcement hereof or the preservation of Note B Holder’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, Note B Holder must rescind or restore
any payment or any part thereof received by Note B Holder in satisfaction of
the Guaranteed Obligations, any prior release or discharge from the terms of
this Guaranty given to Guarantor by Note B Holder 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 portion of the Debt
due to Note B Holder 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 Guarantor to the rights of Note B Holder), 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 


 


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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.


 


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 B, 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 Note B Holder 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 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 B, 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) 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 


 


4

















 


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 B, 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.


 


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 Note
B Holder 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 Note B Holder (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 B, the
Guaranteed Obligations and the liabilities and obligations of Guarantor to Note
B Holder hereunder shall not be reduced, discharged or released 


 


5





















 


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.


 


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 Note B Holder 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 Borrower and
is familiar with the value of any and all collateral intended to be created as
security for the payment of the Note B or the 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 Note B Holder. Neither Note B Holder 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, 


 


6





















 


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 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, Note B Holder 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 Note B Holder. Should Note B
Holder 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 Note B Holder in full of the Guaranteed
Obligations, Guarantor shall become subrogated to the rights of Note B Holder
to the extent that such payments to Note B Holder on the Guarantor Claims have
contributed toward the liquidation of the Guaranteed Obligations, and such
subrogation shall be with respect 


 


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to that proportion of the Guaranteed Obligations which would have been
unpaid if Note B Holder 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 Note B Holder 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 Note B Holder, and
Guarantor covenants promptly to pay the same to Note B Holder.


 


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 Note B Holder
presently exist or are hereafter created or attach. Without the prior written
consent of Note B Holder, 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 Note B
Holder, 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 Note B Holder
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 Note B

  Holder:

  	
  c/o Merrill Lynch &
  Co., Inc.

  4 World Financial Center

  New York, New York 10080

  Attn: Robert Spinna

  



 


8

















 


	
   

  	
  Facsimile No. (212)
  449-7684

  
	
   

  	
   

  
	
  with a copy to:

  	
  Cadwalader, Wickersham &
  Taft LLP

  One World Financial Center

  New York, New York 10281

  Attention: Alan Lawrence, 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, 26th Floor

  Boston, Massachusetts 02110

  Attention: General Counsel

  Facsimile No. (617) 457-0499

  
	
   

  	
   

  
	
  with a copy to:

  	
  Goulston & Storrs, PC

  400 Atlantic Avenue

  Boston, Massachusetts 02110

  Attention: Robert J. Mack, Esq.

  Facsimile No. (617) 574-7613

  



 


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 Note B Holder
or Guarantor arising out of or relating to this Guaranty may at Note B Holder’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

ATTN: MARC B. HELLER


 


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 


 


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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, 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 Note B Holder, 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 Note B Holder, 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 Note B Holder hereunder shall be cumulative of any and all
other rights that Note B Holder may ever have against Guarantor. The exercise
by Note B Holder 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 NOTE B
HOLDER WITH RESPECT TO GUARANTOR’S GUARANTY OF THE GUARANTEED OBLIGATIONS AND 


 


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SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE
SUBJECT MATTER HEREOF. THIS GUARANTY IS INTENDED BY GUARANTOR AND NOTE B HOLDER
AS A FINAL AND COMPLETE EXPRESSION OF THE TERMS OF THE GUARANTY, AND NO COURSE
OF DEALING BETWEEN GUARANTOR AND NOTE B HOLDER, 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 NOTE B HOLDER.


 


5.13                        Waiver
of Right To Trial By Jury. GUARANTOR AND NOTE B HOLDER 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 B, 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 NOTE B HOLDER, 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 NOTE B HOLDER ARE
HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS
CONCLUSIVE EVIDENCE OF THIS WAIVER BY GUARANTOR AND NOTE B HOLDER.


 


5.14                        Cooperation.
Guarantor acknowledges that Note B Holder and its successors and assigns may (i) sell
this Guaranty, the Note B and the other Loan Documents to one or more investors
as a whole loan, (ii) participate the portion of the Loan secured by this
Guaranty to one or more investors, (iii) deposit this Guaranty, the Note B
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 portion of the Loan secured by this Guaranty (or any 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 Note B
Holder in effecting any such Secondary Market Transaction and shall reasonably
cooperate to satisfy the market standards to which Note B Holder 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 Note B Holder
may reasonably request in connection with such Secondary Market Transaction. In
addition, Guarantor shall make available to Note B Holder all information
concerning its business and operations that Note B Holder may reasonably
request, provided that, other than with respect to any financial statements of
Guarantor, Note B Holder shall keep confidential any information that Guarantor
deems in good faith to be of a confidential nature. Note B Holder shall be
permitted to share all such information with the investment banking firms,
Rating Agencies, accounting firms, law firms 


 


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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 Note B Holder may ultimately be
incorporated into the offering documents for the Secondary Market Transaction
and thus various investors may also see some or all of the information. Note B
Holder 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. Note B Holder 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. Note B Holder 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 Partners
  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:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Nancy J. Broderick

  Managing Director