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JUNIOR MEZZANINE COMPLETION GUARANTY
This Junior 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 ”).
A. SW 108 Wagon Wheel JM LLC, a Delaware limited liability company (the “ Borrower ”) has requested that Lender make a loan to Borrower in the amount of Two Million Seven Hundred Seventy-Five Thousand Eight Hundred Seventy-Two Dollars ($2,775,872) (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 SW 109 Wagon Wheel SM LLC, 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 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.
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