Exhibit 10.7
SENIOR MEZZANINE COMPLETION
GUARANTY
This Senior Mezzanine Completion
Guaranty (“ Guaranty ”) is entered into as of
September 29, 2006, jointly and severally by CFP Residential L.P.,
a Texas limited partnership, Kenneth Valach, an individual, J.
Ronald Terwilliger, an individual and Bruce Hart, an individual
(collectively, the “ Guarantor ”) for the
benefit of Behringer Harvard Alexan Nevada, LLC, a Delaware limited
liability company, and/or any subsequent holder of the Note (the
“ Lender ”).
RECITALS
A.
SW 109 Wagon Wheel SM LLC, a
Delaware limited liability company (the “ Borrower
”) has requested that Lender make a loan to Borrower in the
amount of Six Million Nine Hundred Thousand Dollars ($6,900,000)
(the “ Loan ”). The Loan will be evidenced by a
Promissory Note from Borrower to Lender dated as of the date of
this Guaranty (the “ Note ”). The Note will be
secured by a Pledge and Security Agreement dated the same date as
the Note made by Borrower in favor of Lender (the “
Security Instrument ”).
B.
The Loan is being made to finance
the purchase by SW 106 Wagon Wheel Holdings LLC, a Delaware limited
liability company (“Property Owner”), which is a
wholly-owned subsidiary of Borrower, of certain real property (the
“Property”), as more particularly described in the Loan
Agreement dated as of the date of this Guaranty between Borrower
and Lender (the “Loan Agreement”) and to facilitate the
construction of a 213 unit apartment project on the Property to be
known as the Alexan at Nevada State Drive (the
“Project).
C.
The Project is to be constructed in
accordance with, and pursuant to the terms and conditions and
requirements of, the Loan Agreement and other Loan
Documents.
D.
As a condition to making the Loan to
Borrower, Lender requires that the Guarantor execute this Guaranty.
Guarantor has an economic interest in Borrower or will otherwise
obtain a material financial benefit from the Loan.
NOW, THEREFORE, in order to induce
Lender to make the Loan to Borrower, and in consideration thereof,
the Guarantor hereby agrees, unconditionally and irrevocably as
follows:
1.
Defined Terms
. “ Indebtedness
” and other capitalized terms used but not defined in this
Guaranty shall have the meanings assigned to them in the Loan
Agreement.
2.
Guaranty .
a)
Guarantor hereby guarantees to
Lender, upon written demand by Lender, at Lender’s option and
in its sole discretion, that Guarantor will (i) complete the
Project substantially in accordance with the plans and
specifications for the Project, as modified from time to time as
allowed by the Loan Agreement (the “ Plans and
Specifications ”) and in accordance with the terms and
conditions of the Loan Agreement and other Loan Documents if, for
any reason, or under any contingency, Property Owner shall abandon
construction of the Project or shall fail to complete the Project
within the construction time set forth in the Loan Agreement and
Loan
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Documents and (ii) pay all cost
overruns for construction of the Project to the extent Borrower or
Property Owner fails to do so; provided that Lender shall reimburse
Guarantor for all costs incurred by Guarantor in completing the
Project (provided that such completion costs are included in the
Project Budget (as defined below) to the extent such costs do not
constitute cost overruns. In the preceding sentence, “cost
overruns” means costs of constructing the Project that, in
the aggregate, exceed the amount provided in the budget attached
hereto as Exhibit “A” (the “ Project
Budget ”). All amounts reimbursed to Guarantor by Lender
in accordance with this Section 2(a) shall correspondingly increase
the amount of Loan to Borrower and shall be payable by Borrower to
Lender in accordance with the terms of the Loan Agreement. The
Project will be deemed substantially completed in accordance with
the Plans and Specifications upon the issuance of the final
certificate of occupancy, the issuance of a certificate of
substantial completion from the Property Owner’s architect,
receipt of a contractor’s release and the receipt of lien
waivers or similar evidence of payment from the general contractor
and all major subcontractors ( i.e. , subcontractors whose
contract amount exceeds $100,000) to Lender’s reasonable
satisfaction, provided, however, that if Senior Lender shall deem
the Project substantially complete then Lender shall deem the
Project substantially complete (“ Completion
”).
b)
Without limiting the rights and
remedies of Lender, if after the occurrence of an Event of Default
and after Lender has so requested, Guarantor does not proceed with
and diligently prosecute Completion of the Project in accordance
with the Loan Agreement, then Lender may, at its option, without
notice to Guarantor or anyone else, complete the Project either
before or after commencement of foreclosure proceedings, and either
on or before the exercise of any other right or remedy of Lender
against Borrower or Guarantor, with such changes to the Plans and
Specifications that Lender deems necessary or advisable to complete
the Project and Guarantor waives any right to contest such
necessary expenditures. The amount of any and all expenditures made
by Lender for the foregoing purposes, to the extent they exceed the
unexpended portion of the Project Budget shall bear interest from
the date made until repaid to Lender, at a rate per annum equal to
the interest rate provided for in the Note and, together with such
interest, shall be due and payable by Guarantor to Lender upon
demand. Lender does not have and shall never have any obligation to
complete the Project or take such action.
c)
In addition to the foregoing, and
notwithstanding anything to the contrary set forth herein or in any
of the Loan Documents, Guarantor hereby further guarantees to
Lender the full and prompt payment of all principal, interest and
other amounts due and owing by Borrower under the Note, the
Security Instrument and any other Loan Document from and after the
filing of a voluntary bankruptcy or insolvency proceeding of
Property Owner, or Borrower prior to Completion.
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3.
Survival . The obligations of Guarantor under this
Guaranty shall survive any foreclosure proceeding, any foreclosure
sale, any delivery of any deed in lieu of foreclosure, and any
release of record of the Security Instrument.
4.
Guaranty of Performance and
Payment .
Guarantor’s performance and payment obligations under this
Guaranty constitute a guaranty of performance and payment and not
merely a guaranty of collection.
5.
Present, Unconditional and
Irrevocable Guaranty; Waivers . The obligations of Guarantor under this
Guaranty shall be performed without demand by Lender, other than as
provided herein and shall be present, unconditional, absolute and
irrevocable irrespective of the genuineness, validity, regularity
or enforceability of the Note, the Security Instrument, or any
other Loan Document, and without regard to any other circumstance
which might otherwise constitute a legal or equitable discharge of
a surety or a guarantor. This Guaranty shall