FORECLOSURE.
(D)
GUARANTOR AGREES THAT NO PORTION OF ANY SUMS
APPLIED (OTHER THAN SUMS RECEIVED FROM GUARANTOR IN FULL OR PARTIAL SATISFACTION
OF ITS OBLIGATIONS HEREUNDER), FROM TIME TO TIME, IN REDUCTION OF THE DEBT SHALL
BE DEEMED TO HAVE BEEN APPLIED IN REDUCTION OF THE GUARANTEED OBLIGATIONS UNTIL
SUCH TIME AS THE DEBT HAS BEEN PAID IN FULL, OR GUARANTOR SHALL HAVE MADE THE
FULL PAYMENT REQUIRED HEREUNDER, IT BEING THE INTENTION HEREOF THAT THE
GUARANTEED OBLIGATIONS SHALL BE THE LAST PORTION OF THE DEBT TO BE DEEMED
SATISFIED.
3.
REPRESENTATIONS AND WARRANTIES.
GUARANTOR HEREBY REPRESENTS AND WARRANTS (AS TO ITSELF) TO LENDER AS FOLLOWS
(WHICH REPRESENTATIONS AND WARRANTIES SHALL BE GIVEN AS OF THE DATE HEREOF AND
SHALL SURVIVE THE EXECUTION AND DELIVERY OF THIS GUARANTY):
(A)
ORGANIZATION, AUTHORITY AND EXECUTION.
BEHRINGER REIT IS A CORPORATION DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD
STANDING UNDER THE LAWS OF THE STATE OF MARYLAND, AND HAS ALL NECESSARY POWER
AND AUTHORITY TO OWN ITS PROPERTIES AND TO CONDUCT ITS BUSINESS AS PRESENTLY
CONDUCTED OR PROPOSED TO BE CONDUCTED AND TO ENTER INTO AND PERFORM THIS
GUARANTY AND ALL OTHER AGREEMENTS AND INSTRUMENTS TO BE EXECUTED BY IT IN
CONNECTION HEREWITH.
THIS GUARANTY HAS BEEN DULY EXECUTED AND DELIVERED BY
GUARANTOR.
(B)
ENFORCEABILITY.
THIS GUARANTY CONSTITUTES A
LEGAL, VALID AND BINDING OBLIGATION OF GUARANTOR, ENFORCEABLE AGAINST GUARANTOR
IN ACCORDANCE WITH ITS TERMS, EXCEPT AS ENFORCEABILITY MAY BE LIMITED BY
APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR SIMILAR LAWS
AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY.
(C)
NO VIOLATION.
THE EXECUTION, DELIVERY AND
PERFORMANCE BY
GUARANTOR OF ITS OBLIGATIONS UNDER THIS GUARANTY HAS BEEN DULY
AUTHORIZED BY ALL NECESSARY ACTION, AND DO NOT AND WILL NOT VIOLATE ANY LAW,
REGULATION, ORDER, WRIT, INJUNCTION OR DECREE OF ANY COURT OR GOVERNMENTAL BODY,
AGENCY OR OTHER INSTRUMENTALITY APPLICABLE TO A GUARANTOR, OR RESULT IN A BREACH
OF ANY OF THE TERMS, CONDITIONS OR PROVISIONS OF, OR CONSTITUTE A DEFAULT UNDER,
OR RESULT IN THE CREATION OR IMPOSITION OF ANY MORTGAGE, LIEN, CHARGE OR
ENCUMBRANCE OF ANY NATURE WHATSOEVER UPON ANY OF THE ASSETS OF A GUARANTOR
PURSUANT TO THE TERMS OF A GUARANTOR'S ARTICLES OF ORGANIZATION, OR ANY
MORTGAGE, INDENTURE, AGREEMENT OR INSTRUMENT TO WHICH A GUARANTOR IS A PARTY OR
BY WHICH IT OR ANY OF ITS PROPERTIES IS BOUND.
NO GUARANTOR IS IN DEFAULT UNDER
ANY OTHER GUARANTY WHICH IT HAS PROVIDED TO LENDER.
(D)
NO LITIGATION.
THERE ARE NO ACTIONS, SUITS
OR PROCEEDINGS AT LAW OR AT EQUITY, PENDING OR, TO GUARANTOR'S BEST KNOWLEDGE,
THREATENED AGAINST OR AFFECTING A GUARANTOR
2
OR WHICH INVOLVE OR MIGHT INVOLVE THE VALIDITY OR ENFORCEABILITY OF THIS
GUARANTY OR WHICH MIGHT MATERIALLY ADVERSELY AFFECT THE FINANCIAL CONDITION OF A
GUARANTOR OR THE ABILITY OF A GUARANTOR TO PERFORM ANY OF ITS OBLIGATIONS UNDER
THIS GUARANTY.
NO GUARANTOR IS IN DEFAULT BEYOND ANY APPLICABLE GRACE OR CURE
PERIOD WITH RESPECT TO ANY ORDER, WRIT, INJUNCTION, DECREE OR DEMAND OF ANY
GOVERNMENTAL AUTHORITY WHICH MIGHT MATERIALLY ADVERSELY