|
Northmeadow Medical Center
GUARANTY
THIS
GUARANTY AGREEMENT (“Guaranty”), made as of
November 20, 2007, from NNN HEALTHCARE/OFFICE REIT, INC., a
Maryland corporation (collectively, “Guarantor”), with
the mailing address of 1551 N. Tustin Avenue, Suite 300, Santa
Ana, CA 92705, Attn: Shannon Johnson, to EQUITRUST LIFE INSURANCE
COMPANY, an Iowa corporation (“Lender”), with an office
at 5400 University Avenue, West Des Moines, Iowa 50266.
W I T N E S S E T
H:
WHEREAS , Lender proposes to lend to NNN HEALTHCARE/OFFICE
REIT NORTHMEADOW, LLC, a Georgia limited liability company
(“Borrower”), the sum of $8,000,000.00 (herein called
the “Loan”); and.
WHEREAS , the proceeds from the Loan are to be applied
toward the acquisition or the refinancing of improved real property
located in Fulton County, Georgia; and
WHEREAS , in order to induce Lender to make the Loan,
Borrower has agreed to procure and deliver and Guarantor has agreed
to give, this Guaranty; and
WHEREAS , Lender has refused to make the Loan unless this
Guaranty is executed by Guarantor and delivered to Lender; and
WHEREAS , Guarantor has a financial interest in Borrower and
will receive benefits from Lender making the Loan to Borrower.
NOW,
THEREFORE , in consideration of the above premises and other
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and in order to induce Lender to make the
Loan, Guarantor, jointly and severally, hereby covenants and agrees
with Lender as follows:
Section 1. The following terms shall have the following
meanings:
| |
(a) |
|
“Assignment” shall mean the Absolute Assignment of
Leases, Rents and Income dated this same date by Borrower for the
benefit of Lender; |
| |
(b) |
|
“Indebtedness” shall mean the principal of and
interest on the Note and all other amounts, payments and premiums
(including, without limitation, amounts of the Prepayment Premium)
due under the Note and all other indebtedness of Borrower to Lender
under and/or secured by the Loan Documents; |
| |
(c) |
|
“Loan Documents” shall mean the Security Deed and
the Assignment, and all other documents, now or hereafter securing
payment of the Indebtedness. |
| |
(d) |
|
“Security Deed” shall mean that certain Deed to
Secure Debt, Security Agreement and Financing Statement with
Absolute Assignment of Rents and Leases dated as of the date hereof
by Borrower for the benefit of Lender, securing payment of the
Note; |
| |
(e) |
|
“Note” shall mean that certain Secured Installment
Note dated as of the date hereof to be made by Borrower, payable to
Lender in the amount of $8,000,000.00; |
Section 2. Guarantor represents and warrants:
| |
(a) |
|
Guarantor is a Maryland corporation. |
| |
(b) |
|
This Guaranty is made in furtherance of the business of the
Borrower and is necessary and desirable to promote and further the
business of the Guarantor and the undertaking by the Guarantor of
its obligations hereunder will result in direct financial benefits
to Guarantor. |
| |
(c) |
|
Guarantor has established adequate means of obtaining financial
and other information pertaining to the business, operations and
condition (financial and otherwise) of Borrower and its properties
on a continuing basis and that Guarantor is now and will in the
future remain fully familiar with the business, operations and
condition (financial and otherwise) of Borrower and its
properties. |
| |
(d) |
|
Guarantor has reviewed and approved each of the Loan Documents
and is fully familiar with the transaction contemplated by the Loan
Documents and that it will in the future remain fully familiar with
such transaction and with any new Loan Documents and the
transactions contemplated by such Loan Documents. |
| |
(e) |
|
Guarantor is not in default under any provision of the laws of
the State of its organization or under its Bylaws. |
| |
(d) |
|
Guarantor has the necessary power under said laws and under its
Bylaws to make the agreements on its part herein contained. |
| |
(e) |
|
Guarantor has been authorized to enter into and to perform this
Guaranty by all necessary and proper action and that neither the
execution and delivery of this Guaranty, the consummation of the
transactions contemplated hereby nor the fulfillment of or
compliance with the terms or conditions of this Guaranty conflict
with or result in a breach of the terms, conditions or provisions
of any restriction or provision of its Bylaws or any agreement or
instrument to which it is a party or by which it may be bound. |
Section 3. Guarantor, jointly and severally, hereby
absolutely, irrevocably and unconditionally guarantees to Lender
the due and punctual payment of the obligations set forth in
Section 6 below as and when the same shall become due and
payable whether by lapse of time, by acceleration of maturity or
otherwise.
Section 4. The Note and Loan Documents are hereby made a part
of this Guaranty by reference thereto with the same force and
effect as if fully set forth herein.
Section 5. This Guaranty shall be a continuing guaranty, shall
be binding upon the Guarantor and shall remain in full force and
effect, and shall not be discharged, impaired or affected by:
(a) the existence or continuance of any obligation on the part
of the Borrower on or with respect to the Indebtedness, or under
the Note or the Loan Documents; (b) the power or authority of
the Borrower to issue the Note or to execute, acknowledge or
deliver the Note or the Loan Documents; (c) the validity or
invalidity of the Note or the Loan Documents; (d) any defense
whatsoever that the Borrower may or might have to the payment of
the Indebtedness or to the performance or observance of any of the
terms, provisions, covenants and agreements contained in the Note
or the Loan Documents; (e) any limitation or exculpation of
liability on the part of the Borrower; (f) the existence or
continuance of the Borrower as a legal entity or the incapacity,
death, disability, dissolution or termination of Guarantor or any
other person or entity; (g) the transfer by the Borrower of
all or any part of the premises referred to in the Security Deed to
any other corporation, person or entity; (h) any sale, pledge,
surrender, indulgence, alteration, substitution, exchange, change
in, modification or other disposition of any of the Indebtedness,
or any of the obligations of the Borrower under the Note or the
Loan Documents, all of which the Lender is hereby expressly
authorized to make from time to time without notice to the
Guarantor or to anyone; or (i) any defense (other than the
payment of the obligations set forth in Section 6 below in
accordance with its terms) that the Guarantor may or might have to
its undertakings, liabilities and obligations hereunder, each and
every such defense being hereby waived by the Guarantor. It is
understood and agreed that this Guaranty, and the undertakings,
liabilities and obligations of the Guarantor hereunder, shall not
be affected, discharged, impaired or varied by any act, omission or
circumstance whatsoever (whether or not specifically enumerated
above) except the due and punctual payment of the obligations set
forth in Section 6 below, and then only to the extent
thereof.
Section 6. Guarantor agrees that immediately upon the failure
of the Borrower to pay the obligations set forth below as and when
the same shall become due and payable whether by lapse of time, by
acceleration of maturity or otherwise, and written demand by
Lender, Guarantor shall pay to Lender the obligations set forth
below as if the same constituted the direct and primary obligation
of Guarantor. This Guaranty is an absolute guaranty of payment and
not of collection, and Len
|
