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REPAYMENT GUARANTY
THIS
REPAYMENT GUARANTY (this “ Guaranty
”) is made as of June 24, 2008, by GRUBB & ELLIS
HEALTHCARE REIT, INC. , a Maryland corporation (“
Guarantor ”) in favor of WACHOVIA FINANCIAL
SERVICES, INC., a North Carolina corporation, in its capacity
as administrative agent (in such capacity, “
Agent ”) for the lenders (each, a “
Lender ,” and collectively, the "
Lenders ”) from time to time a party to the
Loan Agreement (described below).
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 (the "
Loan Agreement ”) between G&E Healthcare
REIT 5995 Plaza Drive, LLC, a Delaware limited liability company,
G&E Healthcare REIT Epler Parke Building B, LLC, a Delaware
limited liability company, G&E Healthcare REIT Academy, LLC, a
Delaware limited liability company, G&E Healthcare REIT
Nutfield Professional Center, LLC, a Delaware limited liability
company, and G&E Healthcare REIT Medical Portfolio 2, LLC, a
Delaware limited liability company (collectively, "
Borrower ”), Agent and the Lenders.
2. In
order to induce Lenders to extend to Borrower a loan in the
principal amount of Fifty Million Three Hundred Twenty-One Thousand
Five Hundred Dollars ($50,321,500.00) (the " Loan
”), which shall be evidenced by the “Notes”
described in the Loan Agreement, in the aggregate principal amount
of the Loan (the “ Notes ”), Guarantor
hereby unconditionally and irrevocably guarantees to Agent and the
Lenders, and to their successors, endorsees and/or assigns, the
full and prompt payment of (a) the principal sum of the Notes
in accordance with their terms when due, by acceleration or
otherwise, together with all interest accrued thereon, when due
under the terms of the Notes, and any and all other sums of money
that become owing by Borrower to Lenders and/or Agent under the
Notes, Loan Agreement or any other “Loan Document” as
such term is defined in the Loan Agreement (which Notes, 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 .”
3. In
accordance with California Civil Code (“ CC
”) Section 2856:
(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
by reason of CC Sections 2787 to 2855, inclusive, 2899 and
3433 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,
including, without limitation, California Code of Civil Procedure
(“ CCP ”) Sections 580a, 580b, 580d
or 726; 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) Agent
and/or Lenders may collect from Guarantor without first foreclosing
on any real or personal property collateral pledged by
Borrower;
(ii) If
Agent and/or Lenders foreclose on any real property collateral
pledged by Borrower (or any third party):
(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; and
(B) Agent
and/or Lenders may collect from Guarantor even if Agent and/or
Lenders, by foreclosing on any real property collateral, have
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. These rights and defenses include, but are not limited
to, any rights or defenses based upon CCP Sections 580a, 580b,
580d, or 726; and
(c) Guarantor waives all rights and defenses arising out of an
election of remedies by Agent and/or Lenders, 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 by the operation of CCP Section 580d or otherwise,
and even though that election of remedies by Agent and/or Lenders
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 Agent and Lenders that
Guarantor has a financial interest in Borrower or is otherwise
affiliated with Borrower. In that regard, Guarantor agrees that
Lenders’ 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 Agent and/or Lenders, 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) Agent’s and/or Lenders’ 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 Agent
and/or Lenders 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 Swap
Contracts. Without limiting the generality of the foregoing,
Guarantor hereby waives the rights and benefits under CC
Section 2819, and agrees that by doing so Guarantor’s
liability shall continue even if Agent and/or Lenders alter any
obligations under the Loan Documents or the Swap Contracts in any
respect or Agent’s and/or Lenders’ 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 Notes have been paid in full
and until all Guaranteed Obligations owing to Agent and Lenders
have been satisfied, and shall not be reduced by virtue of any
payment by Borrower of any amount due under the Notes or under any
of the Loan Documents or Swap Contracts or by Agent’s and/or
Lenders’ recourse to any collateral or security.
(c) Guarantor represents and warrants to Agent and Lenders
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 Agent and Lenders.
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 Agent and/or
Lenders may pursue, with or without notice to Borrower, in the
event of default under the Notes or other Loan Documents or Swap
Contracts. So long as any of the Guaranteed Obligations remains
unsatisfied or owing to Agent and/or Lenders, 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 Notes 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 Agent and/or Lenders of
any remedies which they now have or may hereafter have with respect
thereto under the Loan Documents or Swap Contracts, at law, in
equity or otherwise. Guarantor hereby waives any and all benefits
and defenses under CC Section 2810 and agrees that by doing so
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. Guarantor hereby waives any and all
benefits and defenses under CC Section 2809 and agrees that by
doing so 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, Agent’s or Lenders’ 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 Agent and/or
Lenders, 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 Agent and Lenders may enforce this Guaranty
upon the occurrence of an event of default (or “Event of
Default”) under the Notes, Loan Agreement or any other Loan
Document or Swap Contract (as event of default is described
therein), notwithstanding the existence of any dispute between
Borrower, Agent and/or Lenders with respect to the existence of
said event of default or performance of the Guaranteed Obligations
or any counterclaim, set-off or other claim which Borrower may
allege against Agent and/or Lenders with respect thereto. Moreover,
Guarantor agrees that Guarantor’s obligations shall not be
affected by any circumstances which constitute a legal or equitable
discharge of a guarantor or surety.
7. Guarantor agrees that Agent and Lenders may enforce this
Guaranty without the necessity of resorting to or exhausting any
security or collateral (including, without limitation, pursuant to
a judicial or nonjudicial foreclosure) and without the necessity of
proceeding against Borrower or any other guarantor. Guarantor
hereby waives any and all benefits under CC Sections 2845,
2849 and 2850, including, without limitation, the right to require
Agent and/or Lenders to proceed against Borrower, to proceed
against any other guarantor, to foreclose any lien on any real or
personal property, to exercise any right or remedy under the Loan
Documents and Swap Contracts, to draw upon any letter of credit
issued in connection herewith, or to pursue any other remedy or to
enforce any other right.
8. (a) Guarantor agrees that nothing contained herein
shall prevent Agent and/or Lenders from suing on the Notes or from
exercising any rights available to it under the Notes or under any
of the other Loan Documents or Swap Contracts and that the exercise
of any of the aforesaid rights will not constitute a legal or
equitable discharge of Guarantor. Guarantor understands that the
exercise by Agent and/or Lenders of certain rights and remedies now
or hereafter contained in the Swap Contracts and Loan Documents
(such as a nonjudicial foreclosure of a mortgage or deed of trust)
may affect or eliminate Guarantor’s right of subrogation
against Borrower and that Guarantor may therefore incur a partially
or totally non-reimbursable liability hereunder; nevertheless,
Guarantor hereby authorizes and empowers Agent and/or Lenders to
exercise, in their sole discretion, any rights and remedies, or any
combination thereof, which may then be available to Agent and/or
Lenders, since it is the intent and purpose of Guarantor that the
obligations hereunder are absolute, independent and unconditional
under any and all circumstances. Guarantor expressly waives any
defense (which defense, if Guarantor had not given this waiver,
Guarantor might otherwise have) to a judgment against Guarantor by
reason of a nonjudicial foreclosure sale. Without limiting the
generality of the foregoing, if the Guaranteed Obligations are at
any time secured by real property, Guara
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