(10) DAYS FOLLOWING GUARANTOR'S
RECEIPT OF A PAYMENT DEMAND (DEFINED BELOW) (THE OBLIGATIONS OF GUARANTOR UNDER
CLAUSE (I) AND THIS CLAUSE (II) BEING REFERRED TO HEREINAFTER, COLLECTIVELY, AS
"GUARANTOR'S OBLIGATION").
Any demand for payment under this Guaranty (a "Payment Demand") shall be in
writing, shall specify the amount of the Guarantor's Obligation as of the date
of the Payment Demand, and shall provide in reasonable detail the calculation of
the amount of the Guarantor's Obligation.
Upon payment in full of the
Guarantor's Obligation within ten (10) days following Guarantor's receipt of the
Payment Demand, Guarantor shall have no further liability under this Guaranty.
2.
THIS IS AN IRREVOCABLE, ABSOLUTE, CONTINUING GUARANTY OF PAYMENT
AND PERFORMANCE.
IT IS AGREED THAT THE OBLIGATIONS OF GUARANTOR HEREUNDER SHALL
BE PRIMARY AND THIS GUARANTY SHALL BE ENFORCEABLE AGAINST GUARANTOR AND ITS
SUCCESSORS WITHOUT THE NECESSITY FOR ANY SUIT OR PROCEEDING OF ANY KIND OR
NATURE WHATSOEVER BROUGHT BY BEHRINGER AGAINST BORROWER OR ITS SUCCESSORS OR
ASSIGNS OR ANY OTHER PARTY UNDER THE CREDIT AGREEMENT OR AGAINST ANY SECURITY
FOR THE PAYMENT OF GUARANTOR'S OBLIGATION AND WITHOUT THE NECESSITY OF ANY
NOTICE OF NON-PAYMENT OR NON-OBSERVANCE OR OF ANY NOTICE OF ACCEPTANCE OF THIS
GUARANTY OR OF ANY NOTICE OF DEMAND TO WHICH GUARANTOR MIGHT OTHERWISE BE
ENTITLED HEREUNDER (INCLUDING, WITHOUT LIMITATION, DILIGENCE, PRESENTMENT,
NOTICE OF MATURITY, EXTENSION OF TIME, PROTEST, NOTICE OF DISHONOR OR DEFAULT,
CHANGE IN NATURE OR FORM OF GUARANTOR'S OBLIGATION, ACCEPTANCE OF FURTHER
SECURITY, RELEASE OF FURTHER SECURITY, IMPOSITION OR AGREEMENT ARRIVED AT AS TO
THE AMOUNT OF OR THE TERMS OF GUARANTOR'S OBLIGATION), ALL OF WHICH GUARANTOR
HEREBY EXPRESSLY WAIVES.
GUARANTOR HEREBY EXPRESSLY AGREES THAT THE VALIDITY OF
THIS GUARANTY AND THE OBLIGATIONS OF GUARANTOR HEREUNDER SHALL IN NO WAY BE
TERMINATED, AFFECTED, DIMINISHED, MODIFIED OR IMPAIRED BY REASON OF THE
ASSERTION OF OR THE FAILURE TO ASSERT BY BEHRINGER, AGENT OR LENDER AGAINST
BORROWER, OR ITS SUCCESSORS OR ASSIGNS, ANY OF THE RIGHTS OR REMEDIES RESERVED
TO BEHRINGER, AGENT OR LENDER PURSUANT TO THE PROVISIONS OF THE CREDIT
AGREEMENT, THE TRANCHE B NOTE, THE MORTGAGE OR ANY OTHER LOAN DOCUMENTS.
3.
GUARANTOR WAIVES, AND COVENANTS AND AGREES THAT IT WILL NOT AT
ANY TIME INSIST UPON, PLEAD OR IN ANY MANNER WHATSOEVER CLAIM OR TAKE THE
BENEFIT OR ADVANTAGE OF, ANY AND ALL APPRAISAL, VALUATION, STAY, EXTENSION,
MARSHALING-OF-ASSETS OR REDEMPTION LAWS, OR RIGHT OF HOMESTEAD OR EXEMPTION,
WHETHER NOW OR AT ANY TIME HEREAFTER IN FORCE, THAT MAY DELAY, PREVENT OR
OTHERWISE AFFECT THE PERFORMANCE BY GUARANTOR OF ITS OBLIGATIONS UNDER, OR THE
ENFORCEMENT BY BEHRINGER OF, THIS GUARANTY.
GUARANTOR FURTHER COVENANTS AND
AGREES NOT TO SET UP OR CLAIM ANY DEFENSE, COUNTERCLAIM, CROSS-CLAIM, OFFSET,
SET-OFF, RIGHT OF RECOUPMENT, OR OTHER OBJECTION OF ANY KIND TO ANY ACTION, SUIT
OR PROCEEDING IN LAW, EQUITY OR OTHERWISE, OR TO ANY DEMAND OR CLAIM THAT
2
MAY BE INSTITUTED OR MADE BY BEHRINGER HEREUNDER OTHER THAN THE DEFENSE OF THE
ACTUAL TIMELY PERFORMANCE OF GUARANTOR'S OBLIGATIONS HEREUNDER.
GUARANTOR
REPRESENTS, WARRANTS