INVESTIGATION PENDING OR,
TO THE BEST OF GUARANTOR'S KNOWLEDGE, THREATENED AGAINST OR AFFECTING GUARANTOR
AT LAW, IN EQUITY, IN ADMIRALTY OR BEFORE ANY ARBITRATOR OR ANY GOVERNMENTAL
DEPARTMENT, COMMISSION, BOARD, BUREAU, AGENCY OR INSTRUMENTALITY (DOMESTIC OR
FOREIGN) THAT COULD REASONABLY BE EXPECTED TO RESULT IN ANY MATERIAL ADVERSE
EFFECT IN THE PROPERTY, ASSETS OR CONDITION (FINANCIAL OR OTHERWISE) OF
GUARANTOR OR IN ABILITY OF GUARANTOR TO PERFORM ITS OBLIGATIONS UNDER THIS
GUARANTY.
(I)
GUARANTOR HAS HERETOFORE DELIVERED TO BEHRINGER, AT BEHRINGER'S
REQUEST, [UNAUDITED] BALANCE SHEETS AND RELATED STATEMENTS OF INCOME, EQUITY AND
CASH FLOWS FOR THE YEAR ENDING [JUNE 30, 2007].
ALL SUCH STATEMENTS WERE
PREPARED ON A GAAP BASIS AND FAIRLY PRESENT, IN ALL MATERIAL RESPECTS, THE
FINANCIAL POSITION OF THE GUARANTOR AS OF [JUNE 30, 2007], SUBJECT, IN THE CASE
OF ANY SUCH UNAUDITED FINANCIAL STATEMENTS, TO CHANGES RESULTING FROM AUDIT AND
NORMAL YEAR END ADJUSTMENTS AND THE ABSENCE OF FOOTNOTE DISCLOSURE REQUIRED IN
ACCORDANCE WITH GAAP.
EXCEPT AS REFLECTED IN SUCH FINANCIAL STATEMENTS,
GUARANTOR DOES NOT HAVE ANY CONTINGENT OBLIGATION, CONTINGENT LIABILITY OR
LIABILITY FOR TAXES, LONG TERM LEASE OR UNUSUAL FORWARD OR LONG TERM COMMITMENT
THAT IS REQUIRED TO BE REFLECTED IN SUCH FINANCIAL STATEMENTS IN ACCORDANCE WITH
GAAP THAT IS NOT SO REFLECTED.
10.
GUARANTOR AND BEHRINGER ACKNOWLEDGE AND AGREE THAT THIS GUARANTY
IS A GUARANTY OF PAYMENT AND PERFORMANCE AND NOT OF COLLECTION AND ENFORCEMENT
IN RESPECT OF ANY OF GUARANTOR'S OBLIGATION.
11.
TO THE EXTENT PERMITTED TO ASSIGN ITS RIGHTS AND OBLIGATIONS UNDER
THE CREDIT AGREEMENT PURSUANT TO THE CREDIT AGREEMENT, BEHRINGER MAY FREELY
ASSIGN ANY OR ALL OF ITS RIGHTS UNDER THIS GUARANTY, PROVIDED THAT NO SUCH
ASSIGNMENT SHALL INCREASE GUARANTOR'S OBLIGATIONS OR DIMINISH ITS RIGHTS
HEREUNDER.
EXCEPT AS MAY BE PERMITTED UNDER THE CREDIT AGREEMENT, GUARANTOR
SHALL NOT ASSIGN ANY OF ITS OBLIGATIONS UNDER THIS GUARANTY WITHOUT THE PRIOR
CONSENT OF THE BEHRINGER.
12.
THE REPRESENTATIONS, WARRANTIES AND OBLIGATIONS OF GUARANTOR SET
FORTH IN THIS GUARANTY SHALL SURVIVE UNTIL THIS GUARANTY SHALL TERMINATE IN
ACCORDANCE WITH THE TERMS HEREOF.
6
13.
THIS GUARANTY CONTAINS THE ENTIRE AGREEMENT BETWEEN THE PARTIES
HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR
AGREEMENTS RELATING TO SUCH SUBJECT MATTER AND MAY NOT BE MODIFIED, AMENDED,
SUPPLEMENTED OR DISCHARGED EXCEPT BY A WRITTEN AGREEMENT SIGNED BY GUARANTOR AND
BEHRINGER.
THIS GUARANTY ALSO MAY BE DISCHARGED BY FULL PERFORMANCE OF
GUARANTOR'S OBLIGATION IN ACCORDANCE WITH THE TERMS HEREOF.
14.
IF ALL OR ANY PORTION OF ANY PROVISION CONTAINED IN THIS GUARANTY
SHALL BE DETERMINED TO BE INVALID, ILLEGAL OR UNENFORCEABLE IN ANY RESPECT FOR
ANY REASON, SUCH PROVISION OR PORTION THEREOF SHALL BE DEEMED STRICKEN AND
SEVERED FROM THIS GUARANTY AND THE REMAINING PROVISION AND PORTIONS THEREOF
SHALL CONTINUE IN FULL FORCE AND EFFECT.
15.
ALL NOTICES, CONSENTS, APPROVALS AND REQUESTS REQUIRED OR
PERMITTED HEREUNDER SHALL BE GIVEN IN THE MANNER PROVIDED IN SECTION 9.7 OF THE
CREDIT AGREEMENT TO BEHRINGER AT THE FOLLOWING ADDRESS: 15601 DALLAS PARKWAY,
SUITE 600, ADDISON, TEXAS 75001