EXHIBIT 10.5


 


GUARANTY AGREEMENT


 


This  GUARANTY AGREEMENT
(this “Guaranty”) is made as of the 15th day of November,
2007, by BEHRINGER HARVARD OPPORTUNITY REIT I, INC., a Maryland
corporation (singly or collectively, “Guarantor”), in favor of BANK OF
AMERICA, N.A., a national banking association (together with its successors and
assigns, “Administrative Agent”), as Administrative Agent on behalf of
itself and each lender from time to time made a party to the Loan Agreement
(collectively, the “Lenders”).


 


PRELIMINARY STATEMENTS


 


Administrative Agent, National City Bank, as Syndication Agent, the
Lenders and Chase Park Plaza Hotel, LLC, a Delaware limited liability company (“Borrower”),
have entered into, are entering into concurrently herewith, or contemplate
entering into, that certain Construction Loan Agreement dated of even date
herewith (herein called, as it may hereafter be modified, supplemented,
restated, extended, or renewed and in effect from time to time, the “Loan
Agreement”), which Loan Agreement sets forth the terms and conditions of a
loan (the “Loan”) to Borrower for the redevelopment of an existing hotel
currently known as the “Chase Park Plaza Hotel” located in St. Louis, Missouri,
as more particularly described in the Loan Agreement and identified therein as
the Land. The Loan is secured in part by the Deed of Trust as defined in
the Loan Agreement (herein called, as it may hereafter be modified,
supplemented, restated, extended or renewed and in effect from time to time,
the “Deed of Trust”).


 


A condition precedent to Lenders’ obligation to make the Loan to
Borrower is Guarantor’s execution and delivery to Lenders of this Guaranty.


 


The Loan is, or will be, evidenced by one or more Promissory Notes
issued by Borrower pursuant to the Loan Agreement, executed by Borrower and
payable to the order of each Lender, in the aggregate principal amount of
$86,200,000.00 (such notes, as they may hereafter be renewed, extended,
supplemented, increased or modified and in effect from time to time, and all other
notes given in substitution therefor in accordance with the Loan Agreement, or
in modification, renewal, or extension thereof, in whole or in part, is herein
called the “Note”).


 


Borrower and Swap Bank may from time to time enter into one or
more “Swap Transactions” as defined in the Deed of Trust.


 


Any capitalized term used and not defined in this Guaranty shall have
the meaning given to such term in the Loan Agreement. This Guaranty is one of
the Loan Documents described in the Loan Agreement.


 


STATEMENT OF AGREEMENTS


 


For good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, and as a material inducement to Lenders to extend
credit to Borrower, Guarantor hereby guarantees to Administrative Agent and the
Lenders the prompt and full payment and performance of the indebtedness and
obligations described below in this Guaranty (collectively 


 


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called the “Guaranteed
Obligations”), this Guaranty being upon the following terms and conditions:


 


1.                                       Guaranty of Payment.


 


(a)                                  Guarantor
hereby unconditionally and irrevocably guarantees to Lenders the punctual
payment when due, whether by lapse of time, by acceleration of, maturity, or
otherwise, of the following (collectively called, the “Indebtedness”):


 


(i)                                     Principal
Liability Amount; plus


 


(ii)                                  Accrued Interest
Amount; plus


 


(iii)                               Personal Liability
Amount; plus


 


(iv)                              Fees, late charges,
costs, expenses, indemnification indebtedness, and other sums of money now or
hereafter due and owing, arising out of or relating to the enforcement of this
Guaranty.


 


This Guaranty
covers the Indebtedness, whether presently outstanding or arising subsequent to
the date hereof, including all amounts advanced by Lenders in stages or
installments. The guaranty of Guarantor as set forth in this Section 1
is a continuing guaranty of payment and not a guaranty of collection. The
provisions of this Section do not limit, reduce or affect Guarantor’s
obligations with respect to the guaranty of performance in Section 2
below. Guarantor’s liability under this Guaranty shall not be reduced or
otherwise affected, except to the extent set forth in the next sentence, by any
amount applied against the Indebtedness as a result of the foreclosure or other
realization upon any of the security for the Note. To the extent Lenders
receive any payments under the Note or any proceeds from foreclosure of or
other realization upon of the security for the Note, such payments shall be
applied to that portion of the Obligations for which Guarantor has no personal
liability for payment, and then (and only after payment in full of the portion
of the Obligations for which Guarantor has no personal liability for payment)
be applied against the portion of the Obligations for whose payment Guarantor
is liable hereunder.


 


(b)                                 Unless
otherwise defined herein, the following capitalized terms when used in this
Guaranty shall have the respective meanings set forth below:


 


“1.35xDSC Performance Threshold” is
defined in the Loan Agreement.


 


“Accrued Interest Amount” means all
accrued and unpaid interest on the Indebtedness as of the Satisfaction Date.


 


“Administrative Agent’s NOI Confirmation
Letter” means a letter from Administrative Agent to Borrower confirming that
the required NOI performance levels have been obtained.


 


“Borrower’s NOI Certificate” is
defined in the Loan Agreement.


 


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“Conditions to Liability Reduction”
means that all of the following are true: (i) no event has occurred and is
continuing which would constitute a Default or a Potential Default under the
Loan Documents, (ii) Borrower has satisfied all of the conditions and
requirements for the final advance for the Improvements set forth in Section 5
of Exhibit “F” to the Loan Agreement, (iii) the City of St. Louis has
issued final certificates of occupancy (or their legal equivalent) for the
Improvements, and (iv) the NOI for the Property, verified by
Administrative Agent’s NOI Confirmation Letter after receipt of Borrower’s NOI
Certificate, based on the most recent twelve (12) calendar months, is not less
than the 1.35xDSC Performance Threshold based on same twelve (12) calendar
month period.


 


“Deemed Principal Balance” shall have
the meaning given such term in the Loan Agreement.


 


“Demand for Payment Notice” means a
writing from Administrative Agent to Guarantor setting forth all amounts owed
by Guarantor under this Guaranty as of a certain date.


 


“NOI” shall have the meaning given to
such term in the Loan Agreement.


 


“Personal Liability Amount” means all
damages, losses, costs and expenses suffered or incurred by Administrative
Agent and the Lenders as a result of (i) fraud by Borrower, Guarantor or
any employee of Borrower or Guarantor or any agent of Borrower or Guarantor if
acting for, on behalf of or under the direction of Borrower, Guarantor or any
employee or principal of Borrower or Guarantor; (ii) any untruth or
inaccuracy in any material respect, which untruth or inaccuracy was known to
Borrower when delivered, of any instrument or information delivered to
Administrative Agent or any Lender by or on behalf of Borrower as a condition
to or in connection with the execution of the Loan Agreement or to satisfy any
condition set forth in the Loan Agreement or in any Loan Document; (iii) any  representation or warranty of Borrower that
is knowingly untrue or inaccurate in any material respect or knowingly fails to
include any fact or information necessary to keep the information contained
therein from being materially misleading; (iv) the misapplication or
misuse by Borrower or anyone acting for or on behalf of Borrower of any
insurance proceeds or condemnation awards, or any Loan proceeds, contrary to
the terms of the Loan Agreement; (v) following written notice of a
Default, the failure of Borrower to apply all revenues, rents, issues,
accounts, profits, accounts receivable and income of Borrower arising from or
in connection with the Project to the normal operating expenses of the Project
(which expenses shall not include the payment of any legal fees unless first
approved in writing by Administrative Agent or expenses or overhead of
Borrower, any direct or indirect owner of Borrower, or Guarantor) and/or any
payments due under the Loan; (vi) the failure of Borrower to fully perform and
satisfy all of the obligations and liabilities of Borrower under Section 2.16
of the Loan Agreement or any indemnity in the Loan Agreement relating thereto; (vii) all
costs, expenses and fees including, but not limited to, court costs and
reasonable attorneys’ fees, costs and expenses, arising in connection with any
proceedings under Debtor Relief Laws applicable to Borrower or Guarantor; (viii) failure
of Borrower to pay all taxes and general and special assessments relating to
the Property; (ix) the 


 


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destruction, theft, damage, disappearance or other loss of any “stored
materials” (as defined in Exhibit “F” to the Loan Agreement) to the
extent that the Lenders have made advances of the Loan for such stored
materials and Borrower failed to comply with the requirements in the Loan
Agreement applicable to such stored materials; and (x) a casualty affecting any
of the Property to the extent such casualty was not covered by insurance
because Borrower failed to carry the insurance required by the Loan Documents
or because Borrower failed to pay in full the losses arising from such casualty
under any plan of self-insurance of Borrower. Clause (x) of the preceding
sentence includes all damages, losses, costs and expenses suffered or incurred
by Administrative Agent and Lenders as a result of the earthquake casualty loss
being in excess of Borrower’s earthquake insurance.


 


“Principal Liability Amount” means a
portion of the principal amount of the Loan including any amount advanced by
Lenders in payment of any of Borrower’s obligations under any Swap Transactions
equal to (i) from and after the date of this Guaranty to and until the
date on which the Conditions for Liability Reduction have been satisfied,
$43,100,000.00, and (ii) after the date on which the Conditions for
Liability Reduction have been satisfied, $21,550,000.00.


 


“Satisfaction Date” means the date, on
or after the Transfer Date, on which Guarantor pays to Administrative Agent,
for the ratable benefit of all Lenders, the Principal Liability Amount and all
other sums which are owed by Guarantor under Section 1 of this
Guaranty as of such date, as set forth in a Demand for Payment Notice (and to
the extent Administrative Agent has not delivered to Guarantor a Demand for
Payment Notice as of the Transfer Date, Administrative Agent shall issue such
notice within five Business Days following a written request from Guarantor).


 


“Target Monthly Amortization” shall
have the meaning given to such term in the Loan Agreement.


 


“Transfer Date” means the date, after
the occurrence of a Default, on which the Property is transferred as a result
of the foreclosure of the Mortgage (as defined in the Loan Agreement) or by
deed in lieu of foreclosure; provided, however, if after the
occurrence of a Default, Borrower tenders a deed in lieu of foreclosure, in a form acceptable
to Administrative Agent, and the Required Lenders refuse to accept such deed in
lieu of foreclosure, the Transfer Date shall be the date such deed is tendered
to Administrative Agent.


 


2.                                       Guaranty of Completion.  Guarantor additionally hereby unconditionally
and irrevocably guarantees to Administrative Agent and the Lenders the timely
performance of all obligations of Borrower under the Loan Documents regarding
the construction and completion of the Improvements, including without
limitation, the obligations to (i) construct the Improvements in
accordance with the Loan Agreement, Laws and with the Plans; (ii) to
complete the Improvements and cause the Improvements to be ready for occupancy,
including obtaining all certificates required by law or the Loan Agreement on
or before the Completion Date. If any of such obligations of Borrower are not
complied with, in any respect whatsoever, and without the necessity of any
notice from Administrative Agent or the Lenders to Guarantor, 


 


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Guarantor agrees
to (i) assume all responsibility for the completion of the Improvements
and, at Guarantor’s own cost and expense, cause the Improvements to be fully
completed in accordance with the Plans and the Loan Documents; (ii) pay
all bills in connection with the construction of the Improvements; and (iii) indemnify
and hold Administrative Agent and the Lenders harmless from any and all loss,
cost, liability or expense that Administrative Agent or the Lenders may suffer
by reason of any such non-compliance. So long as all of such obligations are
being performed by Borrower or Guarantor and no Default exists with respect to
the obligations of Borrower under the Loan Agreement relating to the
construction of the Improvements, Lenders will make the Loan proceeds available
under and subject to the terms of the Loan Agreement. After the occurrence of a
Default and without limiting the other rights and remedies of Administrative
Agent and the Lenders, if Administrative Agent, in its sole and absolute
discretion, is dissatisfied with the progress of construction by Borrower
and/or Guarantor, then Administrative Agent may, at its option with the consent
of the Required Lenders, without notice to Guarantor or anyone else, complete
the Improvements either before or after commencement of foreclosure proceedings
or before or after exercise by Administrative Agent on behalf of the Lenders of
any other right or remedy of the Lenders against Borrower or Guarantor, with
such changes or modifications in the Plans as Administrative Agent, on behalf
of the other Lenders, deems necessary and expend such sums as Administrative
Agent, in its sole and absolute discretion, deems necessary or advisable to
complete the Improvements, and Guarantor hereby waives any right to contest any
such expenditures by Administrative Agent. The amount of any and all
expenditures made by Administrative Agent for the foregoing purposes shall bear
interest from the date made until repaid to Administrative Agent, at the Past
Due Rate and, together with such interest, shall be due and payable by
Guarantor to Administrative Agent upon demand. Administrative Agent and the
Lenders do not have and shall never have any obligation to complete the
Improvements or take any such action. The obligations and liability of Guarantor
under this Section 2 shall not be limited or restricted by the
existence of (or any terms of) the guaranty of payment under Section 1.


 


3.                                       Primary Liability of Guarantor.


 


(a)                                  This
Guaranty is an absolute, irrevocable and unconditional guaranty of payment and
performance. Guarantor shall be liable for the payment and performance of the
Guaranteed Obligations as a primary obligor. This Guaranty shall be effective
as a waiver of, and Guarantor hereby expressly waives, any and all rights to
which Guarantor may otherwise have been entitled under any suretyship laws
in effect from time to time, including any right or privilege, whether existing
under statute, at law or in equity, to require Administrative Agent, on behalf
of the Lenders, to take prior recourse or proceedings against any collateral,
security or Person (hereinafter defined) whatsoever.


 


(b)                                 Guarantor
hereby agrees that in the event of (i) default by Borrower in payment or
performance of the Guaranteed Obligations, or any part thereof, when such
indebtedness or performance becomes due, either by its terms or as the result
of the exercise of any power to accelerate; (ii) the failure of Guarantor
to perform completely and satisfactorily the covenants, terms and
conditions of any of the Guaranteed Obligations; (iii) the death,
incompetency, dissolution or insolvency of Guarantor; (iv) the inability
of Guarantor to pay debts as they mature; (v) an assignment by Guarantor
for the benefit of creditors; (vi) the institution of any proceeding by or
against Guarantor in bankruptcy or for a reorganization or an 


 


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arrangement
with creditors, or for the appointment of a receiver, trustee or custodian for
any of them or for any of their respective properties; (vii) the
determination by Administrative Agent in good faith that a material adverse
change has occurred in the financial condition of Guarantor; (viii) the
entry of a judgment against Guarantor; (ix) a writ or order of attachment,
levy or garnishment is issued against Guarantor; (x) the falsity in any
material respect of, or any material omission in, any representation made to
Administrative Agent or the other Lenders by Guarantor; or (xi) any transfer of
assets of any Guarantor, without the Administrative Agent’s prior consent
(except for transfers of assets for estate planning purposes valued at less
than $50,000 per year per Guarantor, customary political and charitable
contributions, and transfers for which the Guarantor receives consideration
substantially equivalent to the fair market value of the transferred asset)
(individually and collectively an “Event of Default”); then upon the
occurrence of such Event of Default, the Guaranteed Obligations, for purposes
of this Guaranty, shall be deemed immediately due and payable at the election
of Administrative Agent (with the consent of the Required Lenders), and
Guarantor shall, on demand and without presentment, protest, notice of protest,
further notice of nonpayment or of dishonor, default or nonperformance, or
notice of acceleration or of intent to accelerate, or any other notice
whatsoever, without any notice having been given to Guarantor previous to such
demand of the acceptance by Administrative Agent of this Guaranty, and without
any notice having been given to Guarantor previous to such demand of the
creating or incurring of such indebtedness or of such obligation to perform,
all such notices being hereby waived by Guarantor, pay the amount due to
Administrative Agent and the Lenders or perform or observe the agreement,
covenant, term or condition, as the case may be, and pay all damages and
all costs and expenses that may arise in consequence of such Default
(including, without limitation, all attorneys’ fees and expenses, investigation
costs, court costs, and any and all other costs and expenses incurred by
Administrative Agent and the Lenders in connection with the collection and
enforcement of the Note or any other Loan Document), whether or not suit is
filed thereon, or whether at maturity or by acceleration, or whether before or
after maturity, or whether in connection with bankruptcy, insolvency or appeal.
It shall not be necessary for Administrative Agent, on behalf of the Lenders,
in order to enforce such payment or performance by Guarantor, first to
institute suit or pursue or exhaust any rights or remedies against Borrower or
others liable on such indebtedness or for such performance, or to enforce any
rights against any security that shall ever have been given to secure such
indebtedness or performance, or to join Borrower or any others liable for the
payment or performance of the Guaranteed Obligations or any part thereof
in any action to enforce this Guaranty, or to resort to any other means of
obtaining payment or performance of the Guaranteed Obligations; provided,
however, that nothing herein contained shall prevent Administrative
Agent or the Lenders from suing on the Note or foreclosing the Deed of Trust or
from exercising any other rights thereunder, and if such foreclosure or other
remedy is availed of, only the net proceeds therefrom, after deduction of all
charges and expenses of every kind and nature whatsoever, shall be applied in
reduction of the amount due on the Note and Deed of Trust, and Administrative
Agent and the Lenders shall not be required to institute or prosecute
proceedings to recover any deficiency as a condition of payment hereunder or
enforcement hereof. At any sale of the Property or other collateral given for
the Indebtedness or any part thereof, whether by foreclosure or otherwise,
any Lender may at its discretion purchase all or any part of the
Property or collateral so sold or offered for sale for its own account and may,
in payment of the amount bid therefor, deduct such amount from the balance due
it pursuant to the terms of the Note and Deed of Trust.


 


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(c)                                  Suit
may be brought or demand may be made against Borrower or against all
parties who have signed this Guaranty or any other guaranty covering all or any
part of the Guaranteed Obligations, or against any one or more of them,
separately or together, without impairing the rights of Administrative Agent
and the Lenders against any party hereto. Any time that Administrative Agent,
on behalf of the Lenders, is entitled to exercise its rights or remedies
hereunder, it may in its discretion elect to demand payment and/or
performance. If Administrative Agent, on behalf of the Lenders, elects to
demand performance, it shall at all times thereafter have the right to demand
payment until all of the Guaranteed Obligations have been paid and performed in
full. If Administrative Agent, on behalf of the Lenders, elects to demand
payment, it shall at all times thereafter have the right to demand performance
until all of the Guaranteed Obligations have been paid and performed in full.


 


4.                                       Certain Agreements and Waivers by Guarantor.


 


(a)                                  Guarantor
hereby agrees that neither Lenders’ rights or remedies nor Guarantor’s obligations
under the terms of this Guaranty shall be released, diminished, impaired,
reduced or affected by any one or more of the following events, actions, facts,
circumstances or rights, and the liability of Guarantor under this Guaranty
shall be absolute and unconditional irrespective of:


 


(i)                                     any limitation of
liability or recourse in any other Loan Document or arising under any law;


 


(ii)                                  any claim or defense
that this Guaranty was made without consideration or is not supported by
adequate consideration;


 


(iii)                               the taking or accepting
of any other security or guaranty for, or right of recourse with respect to,
any or all of the Guaranteed Obligations;


 


(iv)                              any homestead exemption
or any other exemption under applicable law;


 


(v)                                 any release,
surrender, abandonment, exchange, alteration, sale or other disposition,
subordination, deterioration, waste, failure to protect or preserve,
impairment, or loss of, or any failure to create or perfect any lien or
security interest with respect to, or any other dealings with, any collateral
or security at any time existing or purported, believed or expected to exist in
connection with any or all of the Guaranteed Obligations, including any
impairment of Guarantor’s recourse against any Person or collateral;


 


(vi)                              whether express or by
operation of law, any partial release of the liability of Guarantor hereunder,
or if one or more other guaranties are now or hereafter obtained by the Lenders
covering all or any part of the Guaranteed Obligations, any complete or
partial release of any one or more of such guarantors under any such other
guaranty, or any complete or partial release of Borrower or any other party
liable, directly or indirectly, for the payment or performance of any or all of
the Guaranteed Obligations;


 


(vii)                           the death, insolvency,
bankruptcy, disability, dissolution, liquidation, termination, receivership,
reorganization, merger, consolidation, change of form, 


 


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structure or ownership, sale of all assets, or lack of corporate,
partnership or other power of Borrower or any other party at any time liable
for the payment or performance of any or all of the Guaranteed Obligations;


 


(viii)                        either with or without notice
to or consent of Guarantor: any renewal, extension, modification, supplement,
subordination or rearrangement of the terms of any or all of the Guaranteed
Obligations and/or any of the Loan Documents, including, without limitation,
material alterations of the terms of payment (including changes in maturity
date(s) and interest rate(s)) or performance (including changes in the Plans
and other terms or aspects of construction of the Improvements) or any other
terms thereof, or any waiver, termination, or release of, or consent to
departure from, any of the Loan Documents or any other guaranty of any or all
of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or
compromise that may be granted from time to time by Administrative Agent,
on behalf of the other Lenders, to Borrower, Guarantor, and/or any other Person
at any time liable for the payment or performance of any or all of the
Guaranteed Obligations;


 


(ix)                                any neglect, lack of
diligence, delay, omission, failure, or refusal of Administrative Agent, on behalf
of the Lenders, to take or prosecute (or in taking or prosecuting) any action
for the collection or enforcement of any of the Guaranteed Obligations, or to
foreclose or take or prosecute any action to foreclose (or in foreclosing or
taking or prosecuting any action to foreclose) upon any security therefor, or
to exercise (or in exercising) any other right or power with respect to any
security therefor, or to take or prosecute (or in taking or prosecuting) any
action in connection with any Loan Document, or any failure to sell or
otherwise dispose of in a commercially reasonable manner any collateral
securing any or all of the Guaranteed Obligations;


 


(x)                                   any failure of
Administrative Agent, on behalf of the Lenders, to notify Guarantor of any
creation, renewal, extension, rearrangement, modification, supplement,
subordination, or assignment of the Guaranteed Obligations or any part thereof,
or of any Loan Document, or of any release of or change in any security, or of
any other action taken or refrained from being taken by Administrative Agent,
on behalf of the Lenders, against Borrower or any security or other recourse,
or of any new agreement between Administrative Agent, for the Lenders, and
Borrower, it being understood that unless otherwise expressly provided for in
this Guaranty, the Lenders shall not be required to give Guarantor any notice
of any kind under any circumstances with respect to or in connection with the
Guaranteed Obligations, any and all rights to notice Guarantor may have
otherwise had being hereby waived by Guarantor, and the Guarantor shall be
responsible for obtaining for itself information regarding the Borrower,
including, but not limited to, any changes in the business or financial
condition of the Borrower, and the Guarantor acknowledges and agrees that the
Administrative Agent and the Lenders shall have no duty to notify the Guarantor
of any information which the Administrative Agent and the Lenders may have
concerning Borrower.


 


(xi)                                if for any reason any
Lender is required to refund any payment by Borrower to any other party liable
for the payment or performance of any or all of the Guaranteed Obligations or
pay the amount thereof to someone else;


 


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(xii)                             the making of advances by
Administrative Agent, on behalf of the Lenders, to protect the interest of the
Lenders in the Property, preserve the value of the Property, or for the purpose
of performing any term or covenant contained in any of the Loan Documents;


 


(xiii)                          the existence of any claim,
counterclaim, set-off or other right that Guarantor may at any time have
against Borrower, Administrative Agent, any Lender, or any other Person,
whether or not arising in connection with this Guaranty, the Note, the Loan
Agreement, or any other Loan Document;


 


(xiv)                         the unenforceability of all or
any part of the Guaranteed Obligations against Borrower, whether because
the Guaranteed Obligations exceed the amount permitted by law or violate any
usury law, or because the act of creating the Guaranteed Obligations, or any part thereof,
is ultra vires, or because the officers or Persons creating the
Guaranteed Obligations acted in excess of their authority, or because of a lack
of validity or enforceability of or defect or deficiency in any of the Loan
Documents, or because Borrower has any valid defense, claim or offset with
respect thereto, or because Borrower’s obligation ceases to exist by operation
of law, or because of any other reason or circumstance, 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 (and regardless of any joinder of Borrower or any other party in
any action to obtain payment or performance of any or all of the Guaranteed
Obligations); or


 


(xv)                            any order, ruling or plan
of reorganization emanating from proceedings under Title 11 of the United
States Code with respect to Borrower or any other Person, including any
extension, reduction, composition, or other alteration of the Guaranteed
Obligations, whether or not consented to by Administrative Agent and the
Lenders.


 


(b)                                 In
the event any payment by Borrower or any other Person to any Lender is held to
constitute a preference, fraudulent transfer or other voidable payment under
any bankruptcy, insolvency or similar law, or if for any other reason any
Lender is required to refund such payment or pay the amount thereof to any
other party, such payment by Borrower or any other party to any Lender shall
not constitute a release of Guarantor from any liability hereunder, and this
Guaranty shall continue to be effective or shall be reinstated (notwithstanding
any prior release, surrender or discharge by the Lenders of this Guaranty or of
Guarantor), as the case may be, with respect to, and this Guaranty shall
apply to, any and all amounts so refunded by any such Lender or paid by any
such Lender to another Person (which amounts shall constitute part of the
Guaranteed Obligations), and any interest paid by any such Lender and any
attorneys’ fees, costs and expenses paid or incurred by Lender in connection
with any such event. It is the intent of Guarantor and the Lenders that the
obligations and liabilities of Guarantor hereunder are absolute and
unconditional under any and all circumstances and that until the Guaranteed
Obligations are fully and finally paid and performed, and not subject to refund
or disgorgement, the obligations and liabilities of Guarantor hereunder shall
not be discharged or released, in whole or in part, by any act or occurrence
that might, but for the provisions of this Guaranty, be deemed a legal or
equitable discharge or release of a guarantor. Administrative Agent, on behalf
of the Lenders, shall be entitled to continue to hold this Guaranty in its
possession for the longer 


 


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of (i) the
period after which any performance of obligations under the Loan Agreement
shall accrue, or (ii) a period of one year from the date the Guaranteed
Obligations are paid and performed in full and for so long thereafter as may be
necessary to enforce any obligation of Guarantor hereunder and/or to exercise
any right or remedy of the Lenders hereunder.


 


(c)                                  If
acceleration of the time for payment of any amount payable by Borrower under
the Note, the Loan Agreement, or any other Loan Document that constitutes any
of the Guaranteed Obligations is stayed or delayed by any law or tribunal, all
such amounts shall nonetheless be payable by Guarantor on demand by
Administrative Agent, on behalf of the Lenders.


 


5.                                       Reserved.


 


6.                                       Subordination.  If, for any reason whatsoever, Borrower is now
or hereafter becomes indebted to Guarantor:


 


(a)                                  such
indebtedness and all interest thereon and all liens, security interests and
rights now or hereafter existing with respect to property of Borrower securing
such indebtedness shall, at all times, be subordinate in all respects to the
Guaranteed Obligations and to all liens, security interests and rights now or
hereafter existing to secure the Guaranteed Obligations;


 


(b)                                 Guarantor
shall not be entitled to enforce or receive payment, directly or indirectly, of
any such indebtedness of Borrower to Guarantor (other than trade payables or
other customary expenses incurred in the ordinary course of business) until the
Guaranteed Obligations have been fully and finally paid and performed;


 


(c)                                  Guarantor
hereby assigns and grants to Administrative Agent, on behalf of the Lenders, a
security interest in all such indebtedness and security therefor, if any, of
Borrower to Guarantor now existing or hereafter arising, including any
dividends and payments pursuant to debtor relief or insolvency proceedings
referred to below. In the event of receivership, bankruptcy, reorganization,
arrangement or other debtor relief or insolvency proceedings involving Borrower
as debtor, Administrative Agent, on behalf of the Lenders, shall have the right
to prove its claim in any such proceeding so as to establish its rights
hereunder and shall have the right to receive directly from the receiver,
trustee or other custodian (whether or not a Default shall have occurred or be
continuing under any of the Loan Documents), dividends and payments that are
payable upon any obligation of Borrower to Guarantor now existing or hereafter
arising, and to have all benefits of any security therefor, until the
Guaranteed Obligations have been fully and finally paid and performed. If,
notwithstanding the foregoing provisions, Guarantor should receive any payment,
claim or distribution that is prohibited as provided above in this Section 6,
Guarantor shall pay the same to Administrative Agent, on behalf of the Lenders,
immediately, Guarantor hereby agreeing that it shall receive the payment, claim
or distribution in trust for Administrative Agent, on behalf of the Lenders,
and shall have absolutely no dominion over the same except to pay it
immediately to Administrative Agent; and


 


(d)                                 Guarantor
shall promptly upon request of Administrative Agent from time to time execute
such documents and perform such acts as Administrative Agent may require
to 


 


GUARANTY AGREEMENT -
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evidence and
perfect its interest and to permit or facilitate exercise of its rights under
this Section 6, including, but not limited to, execution and
delivery of financing statements, proofs of claim, further assignments and
security agreements, and delivery to Administrative Agent of any promissory
notes or other instruments evidencing indebtedness of Borrower to Guarantor. All
promissory notes, accounts receivable ledgers or other evidences, now or
hereafter held by Guarantor, of obligations of Borrower to Guarantor shall
contain a specific written notice thereon that the indebtedness evidenced
thereby is subordinated under and is subject to the terms of this Guaranty.


 


7.                                       Other Liability of Guarantor or Borrower.
 If Guarantor is or becomes liable, by
endorsement or otherwise, for any indebtedness owing by Borrower to
Administrative Agent and the Lenders other than under this Guaranty, such
liability shall not be in any manner impaired or affected hereby, and the
rights of Administrative Agent and the Lenders hereunder shall be cumulative of
any and all other rights that Administrative Agent and the Lenders may have
against Guarantor. If Borrower is or becomes indebted to Lenders for any
indebtedness other than or in excess of the Indebtedness for which Guarantor is
liable under this Guaranty, any payment received or recovery realized upon such
other indebtedness of Borrower to Lenders may, except to the extent paid by
Guarantor on the Indebtedness or specifically required by law or agreement of
Administrative Agent to be applied to the Indebtedness, in Administrative Agent’s
sole discretion, be applied upon indebtedness of Borrower to Lenders other than
the Indebtedness. This Guaranty is independent of (and shall not be limited by)
any other guaranty now existing or hereafter given. Further, Guarantor’s
liability under this Guaranty is in addition to any and all other liability
Guarantor may have in any other capacity, including without limitation,
its capacity as a general partner.


 


8.                                       Lenders’ Assigns.  This Guaranty is for the benefit of Administrative
Agent and the Lenders and their successors and assigns, and in the event of an
assignment of the Guaranteed Obligations, or any part thereof, the rights
and benefits hereunder, to the extent applicable to the Guaranteed Obligations
so assigned, may be transferred with such Guaranteed Obligations. Guarantor
waives notice of any transfer or assignment of the Guaranteed Obligations, or
any part thereof, and agrees that failure to give notice of any such
transfer or assignment will not affect the liabilities of Guarantor hereunder.


 


9.                                       Binding Effect.  This Guaranty is binding not only on
Guarantor, but also on Guarantor’s successors and assigns. Upon the death of
Guarantor, if Guarantor is a natural person, this Guaranty shall continue
against Guarantor’s estate as to all of the Guaranteed Obligations, including
that portion incurred or arising after the death of Guarantor and shall be
provable in full against Guarantor’s estate, whether or not the Guaranteed
Obligations are then due and payable. If this Guaranty is signed by more than
one Person, then all of the obligations of Guarantor arising hereunder shall be
jointly and severally binding on each of the undersigned, and their respective
heirs, personal representatives, successors and assigns, and the term “Guarantor”
shall mean all of such Persons and each of them individually.


 


10.                                 Governing Law; Forum; Consent to Jurisdiction.  The validity, enforcement, and
interpretation of this Guaranty, shall for all purposes be governed by and
construed in accordance with the laws of the State of Texas and applicable
United States federal law, and is intended to be performed in accordance with,
and only to the extent permitted by, such laws. All 


 


GUARANTY AGREEMENT -
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obligations of
Guarantor hereunder are payable and performable at the place or places where
the Guaranteed Obligations are payable and performable. Guarantor hereby
irrevocably submits generally and unconditionally for Guarantor and in respect
of Guarantor’s property to the nonexclusive jurisdiction of any state court, or
any United States federal court, sitting in the state specified in the first
sentence of this Section and to the jurisdiction of any state or United
States federal court sitting in the state in which any of the Land is located,
over any suit, action or proceeding arising out of or relating to this Guaranty
or the Guaranteed Obligations. Guarantor hereby irrevocably waives, to the
fullest extent permitted by law, any objection that Guarantor may now or
hereafter have to the laying of venue in any such court and any claim that any
such court is an inconvenient forum. Final judgment in any such suit, action or
proceeding brought in any such court shall be conclusive and binding upon
Guarantor and may be enforced in any court in which Guarantor is subject
to jurisdiction. Guarantor hereby agrees and consents that, in addition to any
methods of service of process provided for under applicable law, all service of
process in any such suit, action or proceeding in any state court, or any
United States federal court, sitting in the state specified in the first
sentence of this Section may be made by certified or registered mail,
return receipt requested, directed to Guarantor at the address set forth at the
end of this Guaranty, or at a subsequent address of which Administrative Agent
receives actual notice from Guarantor in accordance with the notice provisions
hereof, and service so made shall be complete five (5) days after the same
shall have been so mailed. Nothing herein shall affect the right of
Administrative Agent to serve process in any manner permitted by law or limit
the right of Administrative Agent, on behalf of the Lenders, to bring
proceedings against Guarantor in any other court or jurisdiction. Guarantor
hereby releases, to the extent permitted by applicable law, all errors and all
rights of exemption, appeal, stay of execution, inquisition, and other rights
to which the Guarantor may otherwise be entitled under the laws of the
United States of America or any State or possession of the United States of
America now in force or which may hereinafter be enacted. The authority
and power to appear for and enter judgment against the Guarantor shall not be
exhausted by one or more exercises thereof or by any imperfect exercise thereof
and shall not be extinguished by any judgment entered pursuant thereto. Such
authority may be exercised on one or more occasions or from time to time
in the same or different jurisdiction as often as the Administrative Agent
shall deem necessary and desirable.


 


11.                                 Invalidity of Certain Provisions.  If any provision of this Guaranty or the
application thereof to any Person or circumstance shall, for any reason and to
any extent, be declared to be invalid or unenforceable, neither the remaining
provisions of this Guaranty nor the application of such provision to any other
Person or circumstance shall be affected thereby, and the remaining provisions
of this Guaranty, or the applicability of such provision to other Persons or
circumstances, as applicable, shall remain in effect and be enforceable to the
maximum extent permitted by applicable law.


 


12.                                 Attorneys’ Fees and Costs of Collection.
 Guarantor shall pay on demand all
attorneys’ fees and all other costs and expenses incurred by Administrative
Agent, on behalf of the Lenders, in the enforcement of or preservation of the
Lenders’ rights under this Guaranty including, without limitation, all
attorneys’ fees and expenses, investigation costs, and all court costs, whether
or not suit is filed hereon, or whether at maturity or by acceleration, or
whether before or after maturity, or whether in connection with bankruptcy,
insolvency or appeal, or whether in connection with the collection and
enforcement of this Guaranty against any other Guarantor, if there be more than
one. Guarantor agrees to pay interest on any expenses or other 


 


GUARANTY AGREEMENT -
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sums due to
Administrative Agent under this Section 12 that are not paid when
due, at a rate per annum equal to the Past Due Rate. Guarantor’s obligations
and liabilities under this Section 12 shall survive any payment or
discharge in full of the Guaranteed Obligations.


 


13.                                 Payments.  All sums payable under this Guaranty shall be
paid in lawful money of the United States of America that at the time of
payment is legal tender for the payment of public and private debts.


 


14.                                 Controlling Agreement.  It is not the intention of Administrative
Agent, the Lenders or Guarantor to obligate Guarantor to pay interest in excess
of that lawfully permitted to be paid by Guarantor under applicable law. Should
it be determined that any portion of the Guaranteed Obligations or any other
amount payable by Guarantor under this Guaranty constitutes interest in excess
of the maximum amount of interest that Guarantor, in Guarantor’s capacity as
guarantor, may lawfully be required to pay under applicable law, the
obligation of Guarantor to pay such interest shall automatically be limited to
the payment thereof in the maximum amount so permitted under applicable law. The
provisions of this Section 14 shall override and control all other
provisions of this Guaranty and of any other agreement between Guarantor,
Administrative Agent, and the Lenders.


 


15.                                 Representations, Warranties, and Covenants of
Guarantor.  Guarantor
hereby represents, warrants, and covenants to Administrative Agent and the
Lenders that (a) Guarantor owns, directly or indirectly, an interest in
Borrower and will derive a material and substantial benefit, directly or
indirectly, from the making of the Loan to Borrower and from the making of this
Guaranty by Guarantor; (b) this Guaranty is duly authorized and valid, and
is binding upon and enforceable against Guarantor; (c) Guarantor is not,
and the execution, delivery and performance by Guarantor of this Guaranty will
not cause Guarantor to be, in violation of any law or in default (or at risk of
acceleration of indebtedness) under any agreement or restriction by which
Guarantor is bound or affected; (d) Guarantor is duly organized, validly
existing, and in good standing under the laws of the state of its organization
and has full power and authority to enter into and perform this Guaranty; (e) Guarantor
will indemnify Administrative Agent and the Lenders from any loss, cost or
expense as a result of any representation or warranty of the Guarantor being
false, incorrect, incomplete or misleading in any material respect; (f) there
is no litigation pending or, to the knowledge of Guarantor, threatened before
or by any tribunal against or affecting Guarantor; (g) all financial
statements and information regarding Guarantor heretofore furnished to
Administrative Agent by Guarantor do, and all financial statements and such
information hereafter furnished to Administrative Agent by Guarantor will,
fairly and accurately present the condition (financial or otherwise) of
Guarantor as of their dates and the results of Guarantor’s operations for the
periods therein specified, and, since the date of the most recent financial
statements of Guarantor heretofore furnished to Administrative Agent, no
material adverse change has occurred in the financial condition of Guarantor,
nor, except as heretofore disclosed in writing to Administrative Agent, has
Guarantor incurred any material liability, direct or indirect, fixed or
contingent except liabilities incurred in the ordinary course of business; (h) after
giving effect to this Guaranty, Guarantor is solvent, is not engaged or about
to engage in business or a transaction for which the property of Guarantor is
an unreasonably small capital, and does not intend to incur or believe that it
will incur debts that will be beyond its ability to pay as such debts mature; (i) neither
Administrative Agent nor the Lenders have any duty at any time to investigate
or inform Guarantor of the financial or business condition or 


 


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affairs of
Borrower or any change therein, and Guarantor will keep fully apprised of  Borrower’s financial and business condition;
(j) Guarantor acknowledges and agrees that Guarantor may be required to
pay and perform the Guaranteed Obligations in full without assistance or
support from Borrower or any other Person; and (k) Guarantor has read and fully
understands the provisions contained in the Note, the Loan Agreement, the Deed
of Trust, and the other Loan Documents. Guarantor’s representations, warranties
and covenants are a material inducement to Administrative Agent and the Lenders
to enter into the other Loan Documents and shall survive the execution hereof
and any bankruptcy, foreclosure, transfer of security or other event affecting
Borrower, Guarantor, any other party, or any security for all or any part of
the Guaranteed Obligations.


 


16.                                 Notices.  All notices, requests, consents, demands and
other communications required or which any party desires to give hereunder or
under any other Loan Document shall be in writing and, unless otherwise specifically
provided in such other Loan Document, shall be deemed sufficiently given or
furnished if delivered by personal delivery, by courier, or by registered or
certified United States mail, postage prepaid, addressed to the party to whom
directed at the addresses specified in this Guaranty (unless changed by similar
notice in writing given by the particular party whose address is to be changed)
or by facsimile with a confirmatory duplicate copy sent by first class United
States mail), addressed to the party to whom directed or by electronic mail
address, at the addresses set forth at the end of this Agreement or to
Administrative Agent or the Lenders at the addresses specified for notices in
the Loan Agreement (unless changed by similar notice in writing given by the
particular party whose address is to be changed). Any such notice or
communication shall be deemed to have been given either at the time of personal
delivery or, in the case of courier or mail, as of the date of first attempted
delivery at the address and in the manner provided herein, or, in the case of
facsimile, upon receipt; provided that, service of a notice required by any
applicable statute shall be considered complete when the requirements of that
statute are met. Notwithstanding the foregoing, no notice of change of address
shall be effective except upon actual receipt. This Section shall not be
construed in any way to affect or impair any waiver of notice or demand
provided in this Guaranty or in any Loan Document or to require giving of
notice or demand to or upon any Person in any situation or for any reason.


 


17.                                 Cumulative Rights.  The exercise by Administrative Agent, on
behalf of the Lenders, of any right or remedy hereunder or under any other Loan
Document, or at law or in equity, shall not preclude the concurrent or
subsequent exercise of any other right or remedy. Administrative Agent, on
behalf of the Lenders, shall have all rights, remedies and recourses afforded
to the Lenders by reason of this Guaranty or any other Loan Document or by law
or equity or otherwise, and the same (a) shall be cumulative and
concurrent, (b) may be pursued separately, successively or
concurrently against Guarantor or others obligated for the Guaranteed
Obligations, or any part thereof, or against any one or more of them, or
against any security or otherwise, at the sole and absolute discretion of
Administrative Agent, on behalf of the Lenders, (c) may be exercised
as often as occasion therefor shall arise, it being agreed by Guarantor that
the exercise of, discontinuance of the exercise of or failure to exercise any
of such rights, remedies, or recourses shall in no event be construed as a
waiver or release thereof or of any other right, remedy, or recourse, and (d) are
intended to be, and shall be, nonexclusive. No waiver of any default on the part of
Guarantor or of any breach of any of the provisions of this Guaranty or of any
other document shall be considered a waiver of any other or subsequent 


 


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default or
breach, and no delay or omission in exercising or enforcing the rights and
powers granted herein or in any other document shall be construed as a waiver
of such rights and powers, and no exercise or enforcement of any rights or
powers hereunder or under any other document shall be held to exhaust such
rights and powers, and every such right and power may be exercised from
time to time. The granting of any consent, approval or waiver by Administrative
Agent, on behalf of the Lenders, shall be limited to the specific instance and
purpose therefor and shall not constitute consent or approval in any other
instance or for any other purpose. No notice to or demand on Guarantor in any
case shall of itself entitle Guarantor to any other or further notice or demand
in similar or other circumstances. No provision of this Guaranty or any right,
remedy or recourse of Administrative Agent and the Lenders with respect hereto,
or any default or breach, can be waived, nor can this Guaranty or Guarantor be
released or discharged in any way or to any extent, except specifically in each
case by a writing intended for that purpose (and which refers specifically to
this Guaranty) executed, and delivered to Guarantor, by Administrative Agent, on
behalf of the Lenders.


 


18.                                 Term of Guaranty.  This Guaranty shall continue in effect until
all the Guaranteed Obligations are fully and finally paid, performed and
discharged, except that, and notwithstanding any return of this Guaranty to
Guarantor, this Guaranty shall continue in effect (i) with respect to any
of the Guaranteed Obligations that survive the full and final payment of the
indebtedness evidenced by the Note, (ii) with respect to all obligations
and liabilities of Guarantor under Section 12 and (iii) as
provided in Section 4(b).


 


19.                                 Financial Statements.


 


(a)                                  As
used in this Section, “Financial Statements” means a balance sheet,
income statement, statements of cash flow and amount and sources of contingent
liabilities, a reconciliation of changes in equity and liquidity verification,
and, unless Administrative Agent otherwise consents, consolidated statements if
the reporting party is a holding company or a parent of a subsidiary entity. Each
party for whom Financial Statements are required is a “reporting party” and a
specified period to which the required Financial Statements relate is a “reporting
period”.


 


(b)                                 Guarantor
shall provide or cause to be provided to Administrative Agent the following:


 


(i)                                     within one hundred
twenty (120) days after the close of each fiscal year of Guarantor  annual, audited Financial Statements of
Guarantor;


 


(ii)                                  within seventy-five
(75) days after the close of each quarter of each fiscal year of Guarantor
quarterly, unaudited Financial Statements of Guarantor;


 


(iii)                               within thirty (30) days
after the end of each calendar quarter (i.e., each March 31, June 30,
September 30 and December 31) of each calendar year during the term
of the Loan, a Compliance Certificate for Guarantor, executed by any executive
level officer of Guarantor, in the form of that attached hereto as Exhibit A
(“Compliance Certificate”) evidencing Guarantor’s compliance (or
non-compliance, as applicable) with the covenants in this Section 19;
and


 


GUARANTY AGREEMENT -
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(iv)                              from time to time
promptly after Administrative Agent’s request, such additional information,
reports and statements regarding the business operations and financial
condition of each reporting party as Administrative Agent may reasonably
request.


 


All Financial Statements shall be in form and detail satisfactory
to Administrative Agent in its good faith business judgment and shall contain
or be attached to the signed and dated written certification of the reporting
party in form satisfactory to Administrative Agent to certify that the
Financial Statements have been prepared in accordance with GAAP and are
furnished to Administrative Agent in connection with the extension of credit by
Administrative Agent and the Lenders, and constitute a true and correct
statement of the reporting party’s financial position. Administrative Agent
agrees that the Financial Statements of Guarantor delivered to Administrative
Agent in satisfaction of the conditions to closing and funding of the Loan are
satisfactory as to form, detail and accounting principles used therein and
Financial Statements to be provided in satisfaction of the requirements of this
Guaranty shall be satisfactory to Administrative Agent as to form, detail and
accounting principles if consistent with such Financial Statements. All
certifications and signatures on behalf of corporations, partnerships or other
entities shall be by an authorized representative of the entity satisfactory to
Administrative Agent in its good faith business judgment. Except as provided in
Section 19(b) above, all Financial Statements shall be audited
or certified, as required by Administrative Agent, without any qualification or
exception not acceptable to Administrative Agent in its good faith business
judgment, by Travis, Wolff & Company, L.L.P. or another independent
certified public accountants acceptable to Administrative Agent, and shall
contain all reports and disclosures required by generally accepted accounting
principles for a fair presentation. All assets shown on the Financial
Statements provided by Guarantor, unless clearly designated to the contrary
shall, be conclusively deemed to be free and clear of any exemption or any
claim of exemption of Guarantor at the date of the Financial Statements and at
all times thereafter. Acceptance of any Financial Statement by Administrative
Agent, whether or not in the form prescribed herein, shall be relied upon
by Administrative Agent and the Lenders in the administration, enforcement, and
extension of the Guaranteed Obligations.


 


(c)                                  Guarantor
covenants and agrees with Administrative Agent and the Lenders that it will
comply with the following:


 


(i)                                     Guarantor will
maintain, as of each Test Date during the term of the Loan, Liquid Assets of at
least $5,000,000.00;


 


(ii)                                  Guarantor will
maintain, as of each Test Date during the term of the Loan, a Tangible Net
Worth of not less than $242,000,000.00;


 


(iii)                               As of each Test Date
during the term of the Loan, the ratio (expressed as a percentage) of (A) all
Liabilities of Guarantor for the calendar quarter ending on such Test Date, to (B) all
assets of Guarantor determined in accordance with GAAP for the calendar quarter
ending on the same Test Date, shall not be greater than seventy-five percent
(75%).


 


GUARANTY AGREEMENT -
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(d)                                 For
purposes of this Section 19, the following capitalized terms have
the meanings set forth below:


 


“GAAP” means generally accepted accounting principles in the
United States set forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or
such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the
circumstances as of the date of determination, consistently applied.


 


“Liabilities” means, as to Guarantor, without duplication, all
indebtedness, liabilities and obligations of Guarantor, whether matured or
unmatured, liquidated or unliquidated, primary or secondary, direct or
indirect, absolute, fixed or contingent, and whether or not required to be
considered pursuant to GAAP.


 


“Liquid Assets” means the sum of the total assets of Guarantor
that are cash, cash equivalents, accounts and other highly liquid investments
that are not pledged, hypothecated, subject to rights of offset or otherwise
restricted.


 


“Tangible Net Worth” shall mean the excess of total assets over
total liabilities (contingent or otherwise, including without limitation,
declared and unpaid distributions to partners of Guarantor) determined in
accordance with GAAP; excluding, however, all assets that are
classified under GAAP as intangible, including, without limitation, goodwill,
licenses, patents, trademarks, trade names, copyrights and franchises.


 


“Test Date” shall mean, the last date of each calendar quarter
(i.e., every December 31st, March 31st, June 30th and September 30th)
during the term of the Loan.


 


20.                                 Disclosure of Information.  Lenders may sell or offer to sell the
Loan or interests in the Loan to one or more assignees or participants and may disclose
to any such assignee or participant or prospective assignee or participant, to
Lenders’ affiliates, to any regulatory body having jurisdiction over Lenders
and to any other parties as necessary or appropriate in any Lender’s reasonable
judgment, any information Lenders now have or hereafter obtain pertaining to
the Guaranteed Obligations, this Guaranty, or Guarantor, including, without
limitation, information regarding any security for the Guaranteed Obligations
or for this Guaranty, credit or other information on Guarantor, Borrower,
and/or any other party liable, directly or indirectly, for any part of the
Guaranteed Obligations. Any disclosures by Lenders or Administrative Agent
pursuant to this Section 20 shall be made in compliance with the
provisions of Section 6.6 of the Loan Agreement.


 


21.                                 Right of Set-Off.  Upon the occurrence and during the continuance
of any Default, however defined, in the payment or performance when due of any
of the Guaranteed Obligations, each Lender is hereby authorized at any time and
from time to time with prior notice to and consent of Administrative Agent, to
the fullest extent permitted by applicable law, without notice to any Person
(any such notice being expressly waived by Guarantor to the fullest extent
permitted by applicable law), to set off and apply any and all deposits, funds,
or assets at any time held and other indebtedness at any time owing by such
Lender to or for the credit or the 


 


GUARANTY AGREEMENT -
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account of
Guarantor against any and all of the obligations of Guarantor now or hereafter
existing under this Guaranty that are then due and payable. Such Lender will
promptly notify Guarantor after any such set-off and application made by such
Lender, provided that the failure to give such notice shall not affect the validity
of such set-off and application. The rights of Lenders under this Section 21
are in addition to the other rights and remedies (including other rights of set-off)
that Administrative Agent may have, on behalf of all Lenders, and every
right of setoff and lien shall continue in full force and effect until such
right of setoff or lien is specifically waived or released by an instrument in
writing executed by Administrative Agent.


 


22.                                 Subrogation.  Notwithstanding anything to the contrary
contained herein, Guarantor shall not have any right of subrogation in or under
any of the Loan Documents or to participate in any way therein, or in any
right, title or interest in and to any security or right of recourse for the
Indebtedness or any right to reimbursement, exoneration, contribution,
indemnification or any similar rights against any party liable for the
Indebtedness, until the Indebtedness has been fully paid. This waiver is given
to induce Lenders to make the Loan to Borrower.


 


23.                                 Further Assurances.  Guarantor at Guarantor’s expense will promptly
execute and deliver to Administrative Agent upon Administrative Agent’s request
all such other and further documents, agreements, and instruments in compliance
with or accomplishment of the agreements of Guarantor under this Guaranty.


 


24.                                 No Fiduciary Relationship.  The relationship between Administrative Agent
and the Lenders, on the one hand, and Guarantor, on the other hand, is solely
that of lender and guarantor. Administrative Agent and the Lenders have no
fiduciary or other special relationship with or duty to Guarantor and none is
created hereby or may be inferred from any course of dealing or act or
omission of Administrative Agent or Lender.


 


25.                                 Interpretation.  If this Guaranty is signed by more than one
Person as “Guarantor”, then the term “Guarantor” as used in this Guaranty shall
refer to all such Persons, jointly and severally, and all promises, agreements,
covenants, waivers, consents, representations, warranties and other provisions
in this Guaranty are made by and shall be binding upon each and every such
Person, jointly and severally and Administrative Agent, on behalf of all
Lenders, may pursue any Guarantor hereunder without being required (i) to
pursue any other Guarantor hereunder or (ii) pursue rights and remedies
under the Deed of Trust and/or applicable law with respect to the Property or
any other Loan Documents. The term “Administrative Agent” shall be deemed to
include any subsequent administrative agent appointed under the Loan Agreement.
Whenever the context of any provisions hereof shall require it, words in the
singular shall include the plural, words in the plural shall include the
singular, and pronouns of any gender shall include the other gender. Captions
and headings in the Loan Documents are for convenience only and shall not
affect the construction of the Loan Documents. All references in this Guaranty
to Schedules, Articles, Sections, Subsections, paragraphs and subparagraphs
refer to the respective subdivisions of this Guaranty, unless such reference
specifically identifies another document. The terms “herein”, “hereof”, “hereto”,
“hereunder” and similar terms refer to this Guaranty and not to any particular Section or
subsection of this Guaranty. The terms “include” and “including” shall be
interpreted as if followed by the words “without limitation”. All references in
this Guaranty to sums 


 


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denominated in
dollars or with the symbol “$” refer to the lawful currency of the United
States of America, unless such reference specifically identifies another
currency. For purposes of this Guaranty, “Person” or “Persons” shall include
firms, associations, partnerships (including limited partnerships), joint
ventures, trusts, corporations, limited liability companies, and other legal
entities, including governmental bodies, agencies, or instrumentalities, as
well as natural persons.


 


26.                                 Time of Essence.  Time shall be of the essence in this Guaranty
with respect to all of Guarantor’s obligations hereunder.


 


27.                                 Counterparts.  This Guaranty may be executed in multiple
counterparts, each of which, for all purposes, shall be deemed an original, and
all of which taken together shall constitute but one and the same agreement.


 


28.                                 Entire Agreement.  This Guaranty embodies the entire agreement
between Administrative Agent, the Lenders and Guarantor with respect to the
guaranty by Guarantor of the Guaranteed Obligations. This Guaranty supersedes
all prior agreements and understandings, if any, with respect to the guaranty
by Guarantor of the Guaranteed Obligations. No condition or conditions
precedent to the effectiveness of this Guaranty exist. This Guaranty shall be
effective upon execution by Guarantor and delivery to Administrative Agent. This
Guaranty may not be modified, amended or superseded except in a writing
signed by Administrative Agent, on behalf of the Lenders, and Guarantor
referencing this Guaranty by its date and specifically identifying the portions
hereof that are to be modified, amended or superseded.


 


29.                                 Dispute Resolution.


 


(a)                                  Arbitration.
Except to the extent expressly provided below, any controversy, claim or
dispute between or among the parties hereto, including any such controversy,
claim or dispute arising out of or relating to (i) this Guaranty, (ii) any
other Loan Document, (iii) any related agreements or instruments, or (iv) the
transaction contemplated herein or therein (including any claim based on or
arising from an alleged personal injury or business tort) (collectively, a “Dispute”),
shall, upon the request of either party, be determined by binding arbitration
in accordance with the Federal Arbitration Act, Title 9, United States Code (or
if not applicable, the applicable state law), the then current rules for
arbitration of financial services disputes of the American Arbitration
Association, or any successor thereof (“AAA”), and the “Special Rules”
set forth below. In the event of any inconsistency, the Special Rules shall
control. The filing of a court action is not intended to constitute a waiver of
the right of Guarantor or Lenders, including the suing party, thereafter to
require submittal of the Dispute to arbitration. Any party to this Guaranty may bring
an action, including a summary or expedited proceeding, to compel arbitration
of any Dispute in any court having jurisdiction over such action. For the
purposes of this Dispute Resolution Section only, the terms “party” and “parties”
shall include any parent corporation, subsidiary or affiliate of Lenders
involved in the servicing, management or administration of any obligation
described in or evidenced by this Guaranty, together with the officers,
employees, successors and assigns of each of the foregoing.


 


(b)                                 Special
Rules.


 


(i)                                     The arbitration
shall be conducted in the City of Dallas, Texas.


 


GUARANTY AGREEMENT -
Page 19


 

















 


(ii)                                  The arbitration shall
be administered by AAA, who will appoint an arbitrator; if AAA is unwilling or
unable to administer or legally precluded from administering the arbitration or
if AAA is unwilling or unable to enforce or legally precluded from enforcing
any and all provisions of this Dispute Resolution Section, then any party to
this Guaranty may substitute, without the necessity of the agreement of
consent of the other party or parties, another arbitration organization that
has similar procedures to AAA but that will observe and enforce any and all
provisions of this Dispute Resolution Section. All Disputes shall be determined
by one arbitrator; however, if the amount in controversy in a Dispute exceeds
Five Million Dollars ($5,000,000), upon the request of any party, the Dispute
shall be decided by three arbitrators (for purposes of this Guaranty, referred
to collectively as the “arbitrator”).


 


(iii)                               All arbitration hearings
will be commenced within ninety (90) days of the demand for arbitration and
completed within ninety (90) days from the date of commencement; provided,
however, that upon a showing of good cause, the arbitrator shall be permitted
to extend the commencement of such hearing for up to an additional sixty (60)
days.


 


(iv)                              The judgment and the
award, if any, of the arbitrator shall be issued within thirty (30) days of the
close of the hearing. The arbitrator shall provide a concise written statement
setting forth the reasons for the judgment and for the award, if any. The
arbitration award, if any, may be submitted to any court having
jurisdiction to be confirmed and enforced, and such confirmation and
enforcement shall not be subject to arbitration.


 


(v)                                 The arbitrator will
give effect to statutes of limitations and any waivers thereof in determining
the disposition of any Dispute and may dismiss one or more claims in the
arbitration on the basis that such claim or claims is or are barred. For
purposes of the application of the statute of limitations, the service on AAA
under applicable AAA rules of a notice of Dispute is the equivalent of the
filing of a lawsuit.


 


(vi)                              Any dispute concerning this
Dispute Resolution Section, including any such dispute as to the validity or
enforceability of this provision, or whether a Dispute is arbitrable, shall be
determined by the arbitrator; provided, however, that the arbitrator shall not
be permitted to vary the express provisions of the Special Rules or the
Reservation of Rights in subsection (c) below.


 


(vii)                           The arbitrator shall have
the power to award legal fees and costs pursuant to the terms of this Guaranty.


 


(viii)                        The arbitration will take place
on an individual basis without reference to, resort to, or consideration of any
form of class or class action.


 


(c)                                  Reservations
of Rights. Nothing in this Guaranty shall be deemed to (i) limit the
applicability of any otherwise applicable statutes of limitation and any
waivers contained in this Guaranty, or (ii) apply to or limit the right of
Administrative Agent, on behalf of the Lenders, or any Lender, (A) to
exercise self help remedies such as (but not limited to) 


 


GUARANTY AGREEMENT -
Page 20


 

















 


setoff, or (B) to
foreclose judicially or nonjudicially against any real or personal property
collateral, or to exercise judicial or nonjudicial power of sale rights,  (C) to obtain from a court provisional
or ancillary remedies such as (but not limited to) injunctive relief, writ of
possession, prejudgment attachment, or the appointment of a receiver , or (D) to
pursue rights against a party to this Guaranty in a third-party proceeding in
any action brought against Administrative Agent or any Lender in a state,
federal or international court, tribunal or hearing body (including actions in
specialty courts, such as bankruptcy and patent courts). Administrative Agent,
on behalf of the Lenders, may exercise the rights set forth in clauses (A) through
(D), inclusive, and Lenders may exercise the right of setoff, before,
during or after the pendency of any arbitration proceeding brought pursuant to
this Guaranty. Neither the exercise of self help remedies nor the institution
or maintenance of an action for foreclosure or provisional or ancillary
remedies shall constitute a waiver of the right of any party, including the
claimant in any such action, to arbitrate the merits of the Dispute occasioning
resort to such remedies. No provision in the Loan Documents regarding
submission to jurisdiction and/or venue in any court is intended or shall be
construed to be in derogation of the provisions in any Loan Document for
arbitration of any Dispute.


 


(d)                                 Conflicting
Provisions for Dispute Resolution. If there is any conflict between the
terms, conditions and provisions of this Section and those of any other
provision or agreement for arbitration or dispute resolution, the terms,
conditions and provisions of this Section shall prevail as to any Dispute
arising out of or relating to (i) this Guaranty, (ii) any other Loan
Document, (iii) any related agreements or instruments, or (iv) the
transaction contemplated herein or therein (including any claim based on or
arising from an alleged personal injury or business tort). In any other
situation, if the resolution of a given Dispute is specifically governed by
another provision or agreement for arbitration or dispute resolution, the other
provision or agreement shall prevail with respect to said Dispute.


 


(e)                                  Jury
Trial Waiver in Arbitration. By agreeing to this Section, the parties
irrevocably and voluntarily waive any right they may have to a trial by
jury in respect of any Dispute.


 


30.                                 WAIVER OF JURY TRIAL.  WITHOUT
INTENDING IN ANY WAY TO LIMIT THE PARTIES’ AGREEMENT TO ARBITRATE ANY “DISPUTE”
(FOR PURPOSES OF THIS SECTION, AS DEFINED ABOVE) AS SET FORTH IN THIS GUARANTY,
TO THE EXTENT ANY “DISPUTE” IS NOT SUBMITTED TO ARBITRATION OR IS DEEMED BY THE
ARBITRATOR OR BY ANY COURT WITH JURISDICTION TO BE NOT ARBITRABLE OR NOT
REQUIRED TO BE ARBITRATED, GUARANTOR AND ADMINISTRATIVE AGENT, ON BEHALF OF ALL
LENDERS, WAIVE TRIAL BY JURY IN RESPECT OF ANY SUCH “DISPUTE” AND ANY ACTION ON
SUCH “DISPUTE.”  THIS WAIVER IS
KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY GUARANTOR AND ADMINISTRATIVE
AGENT, ON BEHALF OF ALL LENDERS, AND GUARANTOR AND ADMINISTRATIVE AGENT HEREBY
REPRESENT THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY
PERSON OR ENTITY ACTING FOR OR ON BEHALF OF ADMINISTRATIVE AGENT OR LENDERS TO
INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS
EFFECT. THIS PROVISION IS A MATERIAL 


 


GUARANTY AGREEMENT -
Page 21


 

















 


INDUCEMENT
FOR THE PARTIES ENTERING INTO THE LOAN DOCUMENTS. GUARANTOR AND ADMINISTRATIVE
AGENT ARE EACH HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY
PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER OF JURY TRIAL. GUARANTOR
FURTHER REPRESENTS AND WARRANTS THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF
THIS GUARANTY AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, OR
HAS HAD THE OPPORTUNITY TO BE REPRESENTED BY INDEPENDENT LEGAL COUNSEL SELECTED
OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER
WITH COUNSEL.


 


31.                                 Credit Verification.  Each legal entity and individual obligated on
this Guaranty, whether as a Guarantor, a general partner of a Guarantor or in
any other capacity, hereby authorizes Administrative Agent and each Lender to
check any credit references, verify his/her employment and obtain credit
reports from credit reporting agencies of Administrative Agent’s and such
Lender’s choice in connection with any monitoring, collection or future
transaction concerning the Loan, including any modification, extension or
renewal of the Loan. Also in connection with any such monitoring, collection or
future transaction, Administrative Agent and each Lender is hereby authorized
to check credit references, verify employment and obtain a third party credit
report for the spouse of any married person obligated on this Guaranty, if such
person lives in a community property state.


 


THE LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.


 


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GUARANTY AGREEMENT -
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IN WITNESS WHEREOF, Guarantor duly executed this Guaranty under seal as
of the date first written above.


 


	
  Address of
  Guarantor:

  	
  GUARANTOR:

  
	
   

  	
   

  
	
  Behringer
  Harvard Opportunity

  	
  BEHRINGER
  HARVARD OPPORTUNITY

  
	
  REIT I, Inc.

  	
  REIT I, INC.,
  a Maryland corporation

  
	
  15601 Dallas
  Parkway, Suite 600

  	
   

  
	
  Dallas, TX
  75001

  	
   

  
	
  Attention:
  Gerald J. Reihsen, III

  	
  By:

  	
  /s/ Gerald
  J. Reihsen, III

  	
   

  
	
   

  	
  Name:

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
  Title:

  	
  Executive
  Vice President - Corporate

  
	
   

  	
   

  	
  Development &
  Legal and Secretary

  
					



 


 


GUARANTY
AGREEMENT - Signature Page