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REPAYMENT GUARANTY
THIS
REPAYMENT GUARANTY (this “ Guaranty
”) is made as of December 5, 2007, by NNN
HEALTHCARE/OFFICE REIT, INC., a Maryland corporation (“
Guarantor ”) in favor of WACHOVIA FINANCIAL
SERVICES, INC., a North Carolina corporation (“
Lender ”).
1. Except as otherwise provided in this Guaranty,
initially capitalized terms used in this Guaranty without
definition are defined in that certain Loan Agreement of even date
herewith by and between NNN Healthcare/Office REIT Kokomo Medical
Office Park, LLC, a Delaware limited liability company (“
Borrower ”) and Lender (the “ Loan
Agreement ”).
2. In order to induce Lender to extend to Borrower a
loan (whether acting on behalf of itself or any estate created by
the commencement of a case under Title 11 United States Code
or any successor statute thereto (the “ Bankruptcy
Code ”) or any other insolvency, bankruptcy,
reorganization or liquidation proceeding, or by any trustee under
the Bankruptcy Code, liquidator, sequestrator or receiver of
Borrower or Borrower’s property or similar Person duly
appointed pursuant to any law generally governing any insolvency,
bankruptcy, reorganization, liquidation, receivership or like
proceeding) in the sum of $8,300,000.00 (the “
Loan ”), evidenced by a secured promissory note
(“ Note ”), in the aggregate principal
amount of $8,300,000.00, each now or hereafter executed by Borrower
and payable to the order of Lender, Guarantor hereby
unconditionally and irrevocably guarantees to Lender and to its
successors, endorsees and/or assigns, the full and prompt payment
of (a) the principal sum of the Note in accordance with its
terms when due, by acceleration or otherwise, together with all
interest accrued thereon, when due under the terms of the Note, and
any and all other sums of money that become owing by Borrower to
Lender under the Note, Loan Agreement or any other “Loan
Document” as such term is defined in the Loan Agreement
(which Note, Loan Agreement and other “Loan Documents”
are also collectively referred to herein as the “ Loan
Documents ”) and (b) any and all sums owing
under any “Swap Contract” as such term is defined in
the Loan Agreement (“ Swap Contract ”).
The obligations guaranteed pursuant to this Section 2 are
hereinafter referred to as the “ Guaranteed
Obligations .”
Notwithstanding the foregoing, Guarantor’s obligations
hereunder shall in no event exceed an amount equal to $2,075,000.00
of the principal amount of the Loan outstanding on the date the
Notes become due and payable in full, whether at maturity or by
acceleration or otherwise (the " Guaranteed Principal
Amount ”), plus 100% of (a) all interest
owing on the Loan; (b) attorneys’ fees and collection
costs and all other sums other than principal owing on the Loan;
and (c) any deficiency, loss or damage actually suffered by
Lender because of: (1) Borrower’s commission of a
criminal act; (2) the failure to comply with provisions of the
Loan Documents prohibiting the sale, transfer or encumbrance of the
Project; (3) the misapplication by Borrower of any funds
derived from the Project, including security deposits, insurance
proceeds, condemnation awards, rental income or other income
arising with respect to the Project; (4) Borrower’s
commission of waste; (5) Borrower’s removal of
collateral from the Project without replacement,
(6) Borrower’s violation of law; (7) failure to pay
real property taxes, assessments or other charges which would
create liens on any portion of the Project; (8) losses,
expense or liability relating to the presence of hazardous or toxic
materials on the Project; (9) the fraud or intentional
misrepresentation by Borrower made in or in connection with the
Loan Documents or the Loan; (10) Borrower’s voluntary
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 not dismissed within
180 days; (11) any involuntary filing against Borrower of
any proceeding for relief under any federal or state bankruptcy,
insolvency or receivership laws or any assignment for the benefit
of creditors, but only if such involuntary filing was made by
Borrower or an Affiliate of Borrower, or at the instigation or in
collusion or acquiescence with Borrower or an Affiliate of
Borrower; (12) Borrower’s interference with
Lender’s enforcement proceedings (other than in good faith by
reason of a legitimate defense); (13) Borrower’s failure
to maintain required insurance; (14) Borrower’s
collection of rent more than one month in advance; (15) any
amount owing to Lender under indemnity provisions that relate to
liabilities to third parties resulting from acts or omissions of
Borrower, contractors or such other third parties with whom
Borrower has dealt, and/or from the ownership, occupancy or use of
the Project; or (16) any amounts necessary to ensure lien-free
completion of any tenant improvements which Borrower is obligated
to construct under any leases. Guarantor’s obligations shall
not be affected, impaired, lessened or released by loans, credits
or other financial accommodations now existing or hereafter
advanced by Lender to Borrower in excess of the Guaranteed
Principal Amount. In no event shall the Guaranteed Principal Amount
be reduced as a result of (a) Lender’s foreclosure or
acceptance of a deed in lieu of foreclosure with respect to any
collateral securing the Loan, or (b) Guarantor’s payment
of the Loan or any portion thereof prior to the date when the
entire Loan becomes due and payable in full, whether at maturity or
by acceleration or otherwise. The agreement of Lender to the
foregoing limitation on Guarantor’s liability shall in no way
be deemed to limit or restrict the right of Lender to apply any
sums paid by Guarantor to any portion of the Loan.
The
indebtedness guaranteed by Guarantor hereunder shall be deemed to
be the last indebtedness which remains outstanding under the Loan
Documents after the application of payments received from Borrower
and the application of proceeds received from the foreclosure of
the Mortgage and other liquidation of any collateral for the Loan
(subject to the above limitations on the maximum amount of
principal indebtedness guaranteed hereby), and Guarantor may not
claim or contend so long as any such indebtedness remains
outstanding that any payments received by Lender from Borrower or
otherwise, or proceeds received by Lender on the liquidation of the
Project, shall have reduced or discharged Guarantor’s
liability or obligations hereunder. Nothing contained in this
paragraph shall be deemed to (i) limit or otherwise impair any
of the waivers or agreements of Guarantor contained in this
Guaranty or (ii) require Lender to proceed against Borrower,
any collateral or any other Guarantor before proceeding against any
particular Guarantor (any such requirement having been specifically
waived).
3.
(a) Guarantor waives any and all rights of
subrogation, reimbursement, indemnification and contribution, and
any other rights and defenses that are or may become available to
Guarantor, including, without limitation, any and all rights or
defenses Guarantor may have by reason of protection afforded to the
principal with respect to any of the Guaranteed Obligations or to
any other guarantor of any of the Guaranteed Obligations with
respect to such guarantor’s obligations under its guaranty,
in either case, pursuant to the antideficiency or other laws of
this state limiting or discharging the principal’s
indebtedness or such other guarantor’s obligations; and
(b) Guarantor waives all rights and defenses that
Guarantor may have because Borrower’s debt is secured by real
property. This means, among other things:
(i)
Lender may collect from Guarantor without first foreclosing on any
real or personal property collateral pledged by Borrower;
(ii) If
Lender forecloses on any real property collateral pledged by
Borrower:
(A) The
amount of the debt may be reduced only by the price for which that
collateral is sold at the foreclosure sale, even if the collateral
is worth more than the sale price;
(B)
Lender may collect from Guarantor even if the Lender, by
foreclosing on the real property collateral, has destroyed any
right Guarantor may have to collect from Borrower.
This is an
unconditional and irrevocable waiver of any rights and defenses
Guarantor may have because Borrower’s debt is secured by real
property; and
(c) Guarantor waives all rights and defenses arising
out of an election of remedies by Lender, even though that election
of remedies, such as a nonjudicial foreclosure with respect to
security for the Guaranteed Obligations, has destroyed
Guarantor’s rights of subrogation and reimbursement against
Borrower, and even though that election of remedies by Lender has
destroyed Guarantor’s rights of contribution against another
guarantor of any of the Guaranteed Obligations.
No other provision of this
Guaranty shall be construed as limiting the generality of any of
the covenants and waivers set forth in this Section 3.
4. Guarantor represents and warrants to Lender that
Guarantor has a financial interest in Borrower or is otherwise
affiliated with Borrower. In that regard, Guarantor agrees that
Lender’s agreement to make the Loan to Borrower is of
substantial and material benefit to Guarantor and further agrees as
follows:
(a) Guarantor shall continue to be liable under this
Guaranty and the provisions hereof will remain in full force and
effect notwithstanding (i) any modification, agreement or
stipulation between Borrower and Lender or their respective
successors and assigns, with respect to the Loan Documents or the
Swap Contracts or the obligations encompassed thereby, including,
without limitation, the Guaranteed Obligations,
(ii) Lender’s waiver of or failure to enforce any of the
terms, covenants or conditions contained in the Loan Documents or
the Swap Contracts or in any modification thereof, (iii) any
discharge or release of Borrower or any other guarantor from any
liability with respect to the Guaranteed Obligations, (iv) any
discharge, release, exchange or subordination of any real or
personal property then held by Lender as security for the
performance of the Guaranteed Obligations, (v) any additional
security taken for the Guaranteed Obligations, whether real or
personal property, (vi) any foreclosure or other realization
on any security for the Guaranteed Obligations, regardless of the
effect upon Guarantor’s subrogation, contribution or
reimbursement rights against Borrower or any other guarantor,
(vii) any additional loans or financial accommodations to
Borrower or (viii) the manner or order by which payments are
applied to principal, interest or other obligations under the Loan
Documents and the Swap Contracts. Without limiting the generality
of the foregoing, Guarantor hereby agrees that Guarantor’s
liability shall continue even if Lender alters any obligations
under the Loan Documents or the Swap Contracts in any respect or
Lender’s remedies or rights against Borrower are in any way
impaired or suspended without Guarantor’s consent.
(b) Guarantor’s liability under this Guaranty
shall continue until all sums due under the Note have been paid in
full and until all Guaranteed Obligations to Lender have been
satisfied, and shall not be reduced by virtue of any payment by
Borrower of any amount due under the Note or under any of the Loan
Documents or Swap Contracts or Lender’s recourse to any
collateral or security.
(c) Guarantor represents and warrants to Lender that
Guarantor now has and will continue to have full and complete
access to any and all information concerning the transactions
contemplated by the Loan Documents or Swap Contracts or referred to
therein, the value of the assets owned or to be acquired by
Borrower, Borrower’s financial status and its ability to pay
and perform the Guaranteed Obligations owed to Lender. Guarantor
further represents and warrants that Guarantor has reviewed and
approved copies of the Loan Documents and Swap Contracts and is
fully informed of the remedies Lender may pursue, with or without
notice to Borrower, in the event of default under the Note or other
Loan Documents or Swap Contracts. So long as any of the Guaranteed
Obligations remains unsatisfied or owing to Lender, Guarantor shall
keep fully informed as to all aspects of Borrower’s financial
condition and the performance of the Guaranteed Obligations.
(d) Guarantor acknowledges and agrees that Guarantor
may be required to perform the Guaranteed Obligations in accordance
with the terms hereof notwithstanding the fact that the Loan has
fully matured, that the outstanding principal balance thereof is
fully due and payable and that Borrower is in default of its
obligation to pay the full amount due under the Note on the
maturity thereof.
5. The liability of Guarantor under this Guaranty is a
guaranty of payment and performance and not of collectibility, and
is not conditioned or contingent upon the genuineness, validity,
regularity or enforceability of the Loan Documents, Swap Contracts
or other instruments relating to the creation or performance of the
Guaranteed Obligations or the pursuit by Lender of any remedies
which any now has or may hereafter have with respect thereto under
the Loan Documents or Swap Contracts, at law, in equity or
otherwise. Guarantor hereby agrees that Guarantor shall be liable
even if Borrower had no liability at the time of execution of any
of the Loan Documents or Swap Contracts or thereafter ceases to be
liable, and Guarantor’s liability may be larger in amount and
more burdensome than that of Borrower. Guarantor’s liability
hereunder shall not be limited or affected in any way by any
impairment or any diminution or loss of value of any security or
collateral for the Loan, whether caused by hazardous substances or
otherwise, Lender’s failure to perfect a security interest in
such security or collateral or any disability or other defense of
Borrower or any other guarantor.
6. Guarantor hereby waives to the extent permitted by
law: (i) all notices to Guarantor, to Borrower, or to any
other Person, including without limitation notices of the
acceptance of this Guaranty or the creation, renewal, extension,
modification, accrual of any of the Guaranteed Obligations owed to
Lender, enforcement of any right or remedy with respect thereto and
notice of any other matters relating thereto; (ii) diligence
and demand of payment, presentment, protest, dishonor and notice of
dishonor; (iii) any statute of limitations affecting
Guarantor’s liability hereunder or the enforcement thereof;
and (iv) all principles or provisions of law which conflict
with the terms of this Guaranty. Guarantor further agrees that
Lender may enforce this Guaranty upon the occurrenc
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