Exhibit 10.3
PAYMENT GUARANTY
made by
BEHRINGER HARVARD OPPORTUNITY REIT I, INC.,
as guarantor,
in favor of
CITIGROUP GLOBAL MARKETS REALTY CORP.
Dated as of May 2, 2007
PAYMENT GUARANTY
This GUARANTY (this "Guaranty"), dated as of May 2, 2007, made by BEHRINGER
HARVARD OPPORTUNITY REIT I, INC., a Maryland corporation ("Behringer REIT"),
having an address at Behringer Harvard Holdings, LLC, 15601 Dallas Parkway,
Suite 600, Addison, Texas 75001, ("Guarantor"), in favor of CITIGROUP GLOBAL
MARKETS REALTY CORP., a New York corporation (together with its successors and
assigns, hereinafter referred to as "Lender"), having an address at 388
Greenwich Street, Floor 11, New York, New York
10013.
R E C I T A L S:
A.
Pursuant to that certain Promissory Note dated as of
the date hereof (as the same may be amended, modified, supplemented or replaced
from time to time, the "Note") between BEHRINGER HARVARD SANTA CLARA LP
("Borrower") and Lender, Lender has agreed to make a loan (the "Loan") to
Borrower in the maximum principal amount of up to $52,115,000.00 or so much
thereof as may be advanced from time to time;
B.
As a condition to Lender's making the Loan, Lender is
requiring that Guarantor execute and deliver to Lender this Guaranty; and
C.
Guarantor hereby acknowledges that it will materially
benefit from Lender's agreeing to make the Loan;
NOW, THEREFORE, in consideration of the premises set forth herein and as an
inducement for and in consideration of the agreement of Lender to make the Loan
pursuant to the Note, Guarantor hereby agrees, covenants, represents and
warrants to Lender as follows:
1.
DEFINITIONS.
(A)
ALL CAPITALIZED TERMS USED AND NOT DEFINED
HEREIN SHALL HAVE THE RESPECTIVE MEANINGS GIVEN SUCH TERMS IN THE NOTE.
(B)
THE TERM "GUARANTEED OBLIGATIONS" MEANS (I) THE
REPAYMENT OF THE DEBT (AS DEFINED IN THE NOTE) AND (II) ALL OF BORROWER'S
OBLIGATIONS UNDER THE NOTE AND THE FEE LETTER (AS DEFINED IN THE NOTE).
2.
GUARANTY.
(A)
GUARANTOR HEREBY IRREVOCABLY, ABSOLUTELY AND
UNCONDITIONALLY GUARANTEES TO LENDER THE FULL, PROMPT AND COMPLETE PAYMENT WHEN
DUE OF THE GUARANTEED OBLIGATIONS.
(B)
ALL SUMS PAYABLE TO LENDER UNDER THIS GUARANTY
SHALL BE PAYABLE ON DEMAND AND WITHOUT REDUCTION FOR ANY OFFSET, CLAIM,
COUNTERCLAIM OR DEFENSE.
(C)
GUARANTOR HEREBY AGREES TO INDEMNIFY, DEFEND AND
SAVE HARMLESS LENDER FROM AND AGAINST ANY AND ALL COSTS, LOSSES, LIABILITIES,
CLAIMS, CAUSES OF ACTION, EXPENSES
AND DAMAGES, INCLUDING REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS, WHICH
LENDER MAY SUFFER OR WHICH OTHERWISE MAY ARISE BY REASON OF BORROWER'S FAILURE
TO PAY ANY OF THE GUARANTEED OBLIGATIONS WHEN DUE, IRRESPECTIVE OF WHETHER SUCH
COSTS, LOSSES, LIABILITIES, CLAIMS, CAUSES OF ACTION, EXPENSES OR DAMAGES ARE
INCURRED BY LENDER PRIOR OR SUBSEQUENT TO LENDER'S DECLARING THE PRINCIPAL,
INTEREST AND OTHER SUMS EVIDENCED BY THE NOTE OR THE FEE LETTER TO BE DUE AND
PAYABLE.
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