GUARANTY
THIS GUARANTY (
“Guaranty” ) is executed as of January 2,
2007 by NNN Realty Advisors, Inc., a Virginia corporation
(singularly and collectively referred to as
“Guarantor” ), for the benefit of LaSalle
Bank National Association , a national banking association, its
successors and assigns ( “Lender” ).
A. NNN Lenox Medical, LLC, a
Delaware limited liability company ( “Borrower”
), is indebted to Lender with respect to a loan (the
“Loan” ) pursuant to that certain Promissory
Note dated of even date herewith, payable to the order of Lender in
the original principal amount of $12,000,000.00 (together with all
renewals, modifications, increases and extensions thereof, the
“Note” ), which is secured by the liens and
security interests of a Deed of Trust, Security Agreement and
Fixture Filing, of even date herewith (the “Security
Instrument” ), and further evidenced, secured or governed
by the other Loan Documents (as defined in the Note). Capitalized
terms used in this Guaranty and not otherwise defined shall have
the meanings assigned in the Security Instrument.
B. Lender is not willing to make
the Loan, or otherwise extend credit, to Borrower unless Guarantor
unconditionally guarantees payment and performance to Lender of the
Guaranteed Obligations (as herein defined).
C. Guarantor will directly
benefit from Lender’s making the Loan to Borrower.
D. Subsequent to the closing of
the Loan, subject to the terms of Paragraph 15 of the
Security Instrument, Borrower may transfer undivided tenant in
common interests in the Property (provided, however, there may be
no more than thirty-five (35) tenants in common in the
aggregate), including Borrower, with the consent of Lender, as more
specifically set forth in one or more Loan Assumption, Ratification
and Consent Agreement(s) by and between Borrower, Guarantor, the
tenant(s) in common and Lender executed concurrently herewith or
subsequently hereafter.
NOW, THEREFORE, as an inducement to
Lender to make the Loan to Borrower thereunder, and to extend such
additional credit as Lender may from time to time agree to extend
under the Loan Documents, and for other good and valuable
consideration, the receipt and legal sufficiency of which are
hereby acknowledged, the parties do hereby agree as follows:
ARTICLE 1
NATURE AND SCOPE
OF GUARANTY
1.1 Guaranty of
Obligations . Guarantor hereby irrevocably and
unconditionally guarantees to Lender (and its successors and
assigns), jointly and severally, the payment and performance of the
Guaranteed Obligations as and when the same shall be due and
payable, whether by lapse of time, by acceleration of maturity or
otherwise. Guarantor hereby irrevocably and unconditionally
covenants and agrees that it is liable, jointly and severally, for
the Guaranteed Obligations as a primary obligor, and that each
Guarantor shall fully perform, jointly and severally, each and
every term and provision hereof.
1.2 Definition of Guaranteed
Obligations . As used herein, the term “Guaranteed
Obligations” shall mean the unpaid balance of the Loan
(as defined in the Note) in the event of (a) any fraud, willful
misconduct or material intentional misrepresentation by Borrower or
any Guarantor in connection with the Loan,
(b) Borrower’s failure to make the first scheduled
monthly payment due under the Note, (c) a breach of the terms
of Paragraphs 15 or 16 of the Security Instrument or (d) the
voluntary filing by Borrower, or the filing against Borrower by any
Guarantor or any affiliate of any Guarantor, or an involuntary
bankruptcy filing against Borrower in which Borrower or Guarantor
acts in collusion with the filing party with respect to the filing,
of any proceeding for relief under any federal or state bankruptcy,
insolvency or receivership laws or any assignment for the benefit
of creditors made by Borrower. In addition, the Guaranteed
Obligations shall also include and Guarantor shall also be liable
for, and shall indemnify, defend and hold Lender harmless from and
against, any and all loss, liability, damage, cost, expense, claim
or other obligation (including without limitation reasonable
attorney’s fees and costs of defense) incurred or suffered by
Lender and arising out of or in connection with the matters listed
in subparagraphs (i) through (vi) immediately below:
(i) any
waste of the Property caused by act(s) or omission(s) of Borrower,
its agents, affiliates, officers and employees; or the removal or
disposal of any portion of the Property after an Event of Default
under the Loan Documents to the extent such Property is not
replaced by Borrower with like property of equivalent value,
function and design;
(ii) the
misapplication, misappropriation or conversion of: (A) any
rents, security deposits, proceeds or other funds; (B) any
insurance proceeds paid by reason of any loss, damage or
destruction to the Property and not used by Borrower for
restoration or repair of the Property when and as permitted by the
Loan Documents; and/or (C) any awards or amounts received in
connection with the condemnation of all or any portion of the
Property and not used by Borrower for restoration or repair of the
Property when and as permitted by the Loan Documents;
(iii) Borrower’s failure to deliver any security
deposits collected with respect to the Property to Lender or any
other party entitled to receive such security deposits under the
Loan Documents following an Event of Default; and any rents
(including advanced or prepaid rents), issues, profits, accounts or
other amounts generated by or related to the Property attributable
to, or accruing after an Event of Default, which amounts were
collected by Borrower or any other party on its behalf or for its
benefit and not turned over to the Lender or used to pay
unaffiliated third parties for reasonable and customary operating
expenses and capital expenditures for the Property, taxes and
insurance premiums with respect to the Property or any other
amounts permitted or required to be paid under the Loan Documents
with respect to the Property;
(iv) the
breach of the obligations set forth in that certain Hazardous
Substances Indemnification Agreement from Borrower and Guarantor to
Lender of even date herewith, as hereinafter amended, if at all;
and
(v) the
filing by Borrower, its members, managers, managing members or vice
presidents of any action to partition any portion of the Property
and any action to compel any sale thereof.
1.3 Nature of Guaranty
. This Guaranty is an irrevocable, absolute, continuing guaranty of
payment and performance, is joint and several and is not a guaranty
of collection. This Guaranty may not be revoked by Guarantor and
shall continue to be effective with respect to any Guaranteed
Obligations arising or created after any attempted revocation by
Guarantor and after (if Guarantor is a natural person)
Guarantor’s death (in which event this Guaranty shall be
binding upon Guarantor’s estate and Guarantor’s legal
representatives and heirs). The fact that at any time or from time
to time the Guaranteed Obligations may be increased or reduced
shall not release or discharge the obligation of Guarantor to
Lender with respect to Guaranteed Obligations. This Guaranty may be
enforced by Lender and any subsequent holder of the Note and shall
not be discharged by the assignment or negotiation of all or part
of the Note.
1.4 Guaranteed Obligations Not
Reduced by Offset . The Guaranteed Obligations and the
liabilities and obligations of Guarantor to Lender hereunder, shall
not be reduced, discharged or released because or by reason of any
existing or future offset, claim or defense of Borrower, or any
other party, against Lender or against payment of the Guaranteed
Obligations, whether such offset, claim or defense arises in
connection with the Guaranteed Obligations (or the transactions
creating the Guaranteed Obligations) or otherwise.
1.5 Payment by
Guarantor . If all or any part of the Guaranteed
Obligations shall not be punctually paid when due, whether at
maturity or earlier by acceleration or otherwise, Guarantor shall,
immediately upon demand by Lender, and without presentment,
protest, notice of protest, notice of non-payment, notice of
intention to accelerate the maturity, notice of acceleration of the
maturity, or any other notice whatsoever, pay in lawful money of
the United States of America, the amount due on the Guaranteed
Obligations to Lender at Lender’s address as set forth
herein. Such demand(s) may be made at any time coincident with or
after the time for payment of all or part of the Guaranteed
Obligations, and may be made from time to time with respect to the
same or different items of Guaranteed Obligations. Such demand
shall be deemed made, given and received in accordance with the
notice provisions hereof.
1.6 No Duty to Pursue
Others . It shall not be necessary for Lender (and
Guarantor hereby waives any rights which Guarantor may have to
require Lender), in order to enforce such payment by Guarantor,
first to (a) institute suit or exhaust its remedies against
Borrower or others liable on the Loan or the Guaranteed Obligations
or any other person, (b) enforce or exhaust any of
Lender’s rights or remedies against any collateral which
shall ever have been given to secure the Loan, (c) enforce
Lender’s rights or remedies available to Lender against any
other guarantors of the Guaranteed Obligations, (d) join
Borrower or any others liable on the Guaranteed Obligations in any
action seeking to enforce this Guaranty, or (e) resort to any
other means of obtaining payment of the Guaranteed Obligations.
Lender shall not be required to mitigate damages or take any other
action to reduce, collect or enforce the Guaranteed
Obligations.
1.7 Waivers . Guarantor
agrees to the provisions of the Loan Documents, and hereby waives
notice of (a) any loans or advances made by Lender to
Borrower, (b) acceptance of this Guaranty, (c) any
amendment or extension of the Note or of any other Loan Documents,
(d) the execution and delivery by Borrower and Lender of any
other loan or credit agreement or of Borrower’s execution and
delivery of any promissory notes or other documents arising under
the Loan Documents or in connection with the Property, (e) the
occurrence of any breach by Borrower or default,
(f) Lender’s transfer or disposition of the Guaranteed
Obligations, or any part thereof, (g) sale or foreclosure (or
posting or advertising for sale or foreclosure) of any collateral
for the Guaranteed Obligations to the extent permitted by law,
(h) protest, proof of non-payment or default by Borrower, or
(i) any other action at any time taken or omitted by Lender,
and, generally, all demands and notices of every kind in connection
with this Guaranty, the Loan Documents, any documents or agreements
evidencing, securing or relating to any of the Guaranteed
Obligations and the obligations hereby guaranteed.
1.8 Payment of Expenses
. In the event that Guarantor should breach or fail to timely
perform any provisions of this Guaranty, Guarantor shall,
immediately upon demand by Lender, pay Lender all costs and
expenses (including court costs and reasonable attorneys’
fees) incurred by Lender in the enforcement hereof or the
preservation of Lender’s rights hereunder. The covenant
contained in this paragraph shall survive the payment and
performance of the Guaranteed Obligations.
1.9 Effect of
Bankruptcy . In the event that, pursuant to any insolvency,
bankruptcy, reorganization, receivership or other debtor relief
law, or any judgment, order or decision thereunder, Lender must
rescind or restore any payment, or any part thereof, received by
Lender in satisfaction of the Guaranteed Obligations, as set forth
herein, any prior release or discharge from the terms of this
Guaranty given to Guarantor by Lender shall be without effect, and
this Guaranty shall remain in full force and effect. It is the
intention of Borrower and Guarantor that Guarantor’s
obligations hereunder shall not be discharged except by
Guarantor’s performance of such obligations and then only to
the extent of such performance.
1.10 Deferment of Rights of
Subrogation, Reimbursement and Contribution .
(a) Notwithstanding any payment or payments made by any
Guarantor hereunder, no Guarantor will assert or exercise any right
of Lender or of such Guarantor against Borrower to recover the
amount of any payment made by such Guarantor to Lender by way of
subrogation, reimbursement, contribution, indemnity, or otherwise
arising by contract or operation of law, and such Guarantor shall
not have any right of recourse to or any claim against assets or
property of Borrower, whether or not the obligations of Borrower
have been satisfied, all of such rights being herein expressly
waived by such Guarantor. Each Guarantor agrees not to seek
contribution or indemnity or other recourse from any other
guarantor so long as the Loan is outstanding. If any amount shall
nevertheless be paid to a Guarantor by Borrower or another
Guarantor prior to payment in full of the Obligations (hereinafter
defined), such amount shall be held in trust for the benefit of
Lender and shall forthwith be paid to Lender to be credited and
applied to the Obligations, whether matured or unmatured. The
provisions of this paragraph shall survive the termination of this
Guaranty, and any satisfaction and discharge of Borrower by virtue
of any payment, court order or any applicable law.
(b) Notwithstanding the provisions of
Subparagraph 1.10(a) , each Guarantor shall have and be
entitled to (i) all rights of subrogation otherwise provided
by applicable law in respect of any payment it may make or be
obligated to make under this Guaranty and (ii) all claims it
would have against Borrower in the absence of
Subparagraph 1.10(a) and to assert and enforce same, in
each case on and after, but at no time prior to, the date (the
“Subrogation Trigger Date” ) which is ninety-one
(91) days after the date on which all sums owed to Lender
under the Loan Documents (the “Obligations” )
have been paid in full, if and only if (x) no Event of Default
of the type described in Paragraph 20(f) of the
Security Instrument with respect to any other Guarantor has existed
at any time on and after the date of this Guaranty to and including
the Subrogation Trigger Date and (y) the existence of each
Guarantor’s rights under this
Subparagraph 1.10(b) would not make such Guarantor a
creditor (as defined in the Code, as such term is hereinafter
defined) of Borrower or any other Guarantor in any insolvency,
bankruptcy, reorganization or similar proceeding commenced on or
prior to the Subrogation Trigger Date.
1.11 Bankruptcy Code
Waiver . It is the intention of the parties that Guarantor
shall not be deemed to be a “creditor” or
“creditors” (as defined in Section 101 of the
Bankruptcy Code) of Borrower, or any such guarantor, by reason of
the existence of this Guaranty, in the event that Borrower or any
such guarantor, becomes a debtor in any proceeding under the
Bankruptcy Code, and in connection herewith, Guarantor hereby
waives any such right as a “creditor” under the
Bankruptcy Code. This waiver is given to induce Lender to make the
Loan evidenced by the Note to Borrower. After the Loan is paid in
full and there shall be no obligations or liabilities under this
Guaranty outstanding, this waiver shall be deemed to be
terminated.
1.12 “ Borrower
.” The term “Borrower” as used herein
shall include any new or successor corporation, association,
partnership (general or limited), joint venture, trust or other
individual or organization formed as a result of any merger,
reorganization, sale, transfer, devise, gift or bequest of Borrower
or any interest in Borrower.
ARTICLE 2
EVENTS AND
CIRCUMSTANCES NOT REDUCING
OR DISCHARGING
GUARANTOR’S OBLIGATIONS
Guarantor hereby consents and agrees
to each of the following, and agrees that Guarantor’s
obligations under this Guaranty shall not be released, diminished,
impaired, reduced or adversely affected by any of the following,
and waives any common law, equitable, statutory or other rights
(including without limitation rights to notice) which Guarantor
might otherwise have as a result of or in connection with any of
the following:
2.1 Modifications . Any
renewal, extension, increase, modification, alteration or
rearrangement of all or any part of the Guaranteed Obligations,
Note, Loan Documents, or other document, instrument, contract or
understanding between Borrower and Lender, or any other parties,
pertaining to the Guaranteed Obligations or any failure of Lender
to notify Guarantor of any such action.
2.2 Adjustment . Any
adjustment, indulgence, forbearance or compromise that might be
granted or given by Lender to Borrower or any Guarantor.
2.3 Condition of Borrower or
Guarantor . The insolvency, bankruptcy, arrangement,
adjustment, composition, liquidation, disability, dissolution or
lack of power of Borrower, Guarantor or any other party at any time
liable for the payment of all or part of the Guaranteed
Obligations; or any dissolution of Borrower or Guarantor, or any
sale, lease or transfer of any or all of the assets of Borrower or
Guarantor, or any changes in the shareholders, partners or members
of Borrower or Guarantor; or any reorganization of Borrower or
Guarantor.
2.4 Invalidity of Guaranteed
Obligations . The invalidity, illegality or
unenforceability of all or any part of the Guaranteed Obligations,
or any document or agreement executed in connection with the
Guaranteed Obligations, for any reason whatsoever, including
without limitation the fact that