Exhibit 10.4
GUARANTY
made by
BEHRINGER HARVARD REIT I, INC.
as Guarantor,
in favor of
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
Dated as of June 2, 2006
GUARANTY
This GUARANTY (this "Guaranty"), dated as of June 2, 2006, made by BEHRINGER
HARVARD REIT I, INC. a Maryland corporation ("Behringer REIT"), having an
address at Behringer Harvard Holdings, LLC, 15601 Dallas Parkway, Suite 600,
Addison, Texas 75001, (Behringer REIT is sometimes herein referred to as the
"Guarantor"), in favor of GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., a Delaware
corporation, (together with its successors and assigns, hereinafter referred to
as "Lender"), having an address at 600 Steamboat Road, Greenwich, Connecticut
06830.
R E C I T A L S:
A.
PURSUANT TO THAT CERTAIN LOAN AGREEMENT DATED AS OF THE DATE
HEREOF (AS THE SAME MAY BE AMENDED, MODIFIED, SUPPLEMENTED OR REPLACED FROM TIME
TO TIME, THE "LOAN AGREEMENT") BETWEEN BEHRINGER HARVARD SOUTH RIVERSIDE, LLC, A
DELAWARE LIMITED LIABILITY COMPANY (THE "BORROWER") AND LENDER, LENDER HAS
AGREED TO MAKE A LOAN (THE "LOAN") TO BORROWER IN THE MAXIMUM PRINCIPAL AMOUNT
OF $202,000,000.00, SUBJECT TO THE TERMS AND CONDITIONS OF THE LOAN AGREEMENT;
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 Loan Agreement, 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 LOAN AGREEMENT.
(B)
THE TERM "GUARANTEED OBLIGATIONS" MEANS (I) BORROWER'S RECOURSE
LIABILITIES (THE "RECOURSE LIABILITY GUARANTEED OBLIGATIONS"), (II) IN ADDITION
TO AND WITHOUT LIMITING THE OBLIGATIONS OF GUARANTOR UNDER THIS GUARANTY WITH
RESPECT TO THE RECOURSE LIABILITY GUARANTEED OBLIGATIONS, PAYMENT AND
PERFORMANCE IN FULL OF (A) THE REQUIRED REPAIRS, (B) ALL TAXES AND INSURANCE
PREMIUMS, (C) ALL CAPITAL EXPENSES AND WORK RELATING THERETO, AND (D) ALL
APPROVED LEASING EXPENSES WITH RESPECT TO LEASES HEREAFTER EXECUTED AND ALL WORK
RELATING THERETO, AND (III) FROM AND AFTER THE DATE THAT ANY SPRINGING RECOURSE
EVENT OCCURS, PAYMENT OF THE ENTIRE UNPAID BALANCE OF THE DEBT (AND WHETHER
ACCRUED PRIOR TO, ON OR AFTER SUCH DATE).
(C)
THE TERM "GUARANTY LIMIT AMOUNT" SHALL MEAN, AS OF ANY DATE OF
DETERMINATION, THE SUM, AS OF SUCH DATE AFTER GIVING EFFECT TO ANY ADJUSTMENTS
THERETO MADE PURSUANT TO THE LOAN AGREEMENT, OF (I) THE ROLLOVER RESERVE OFFSET
AMOUNT, PLUS (II) THE REQUIRED REPAIRS RESERVE OFFSET AMOUNT, PLUS (III) THE TAX
AND INSURANCE RESERVE OFFSET AMOUNT, PLUS (IV) THE CAPITAL RESERVE OFFSET
AMOUNT. THE GUARANTY LIMIT AMOUNT AS OF THE DATE HEREOF IS $16,767,547.
GUARANTOR AND LENDER HEREBY ACKNOWLEDGE AND AGREE THAT THE RESPECTIVE AMOUNTS OF
THE ROLLOVER RESERVE OFFSET AMOUNT, THE REQUIRED REPAIRS RESERVE