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Exhibit 10.2
SECOND AMENDED AND RESTATED GUARANTY
THIS SECOND AMENDED AND RESTATED GUARANTY ("Guaranty") made as of
this
30th day of September, 2005, by WINDROSE
MEDICAL PROPERTIES TRUST, a Maryland
real estate investment trust ("Guarantor"),
to and for the benefit of THE
HUNTINGTON NATIONAL BANK, a national
banking association, as agent for the
Lenders (as defined in the Credit Agreement
defined below) (The Huntington
National Bank, in its capacity as agent for
the Lenders being referred to herein
as "Agent").
R E C I T A L S
A. Concurrently herewith, Windrose Medical Properties, L.P., a
Virginia
limited partnership (the "Borrower"), and
The Huntington National Bank,
individually, and as agent, entered into
that certain Second Amended and
Restated Secured Revolving Credit Agreement
(the "Credit Agreement"), whereby
Lenders agreed to make certain credit
facilities available to Borrower in the
maximum amount at any time outstanding not
to exceed the aggregate sum of
Sixty-Three Million Dollars ($63,000,000)
(collectively, the "Loan").
Capitalized terms used and not otherwise
defined herein shall have the meanings
given to them in the Credit Agreement.
B. Guarantor will derive material financial benefit from the
Loan.
C. Lenders have relied on the statements and agreements
contained
herein in agreeing to make the Loan. The
execution and delivery of this Guaranty
by Guarantor is a condition precedent to
the making of the Loan by Lenders.
AGREEMENTS
NOW, THEREFORE, intending to be legally bound, Guarantor, in
consideration of the matters described in
the foregoing Recitals, which Recitals
are incorporated herein and made a part
hereof, and for other good and valuable
consideration the receipt and sufficiency
of which are acknowledged, hereby
covenants and agrees for the benefit of
Agent and its respective successors,
endorsees, transferees, participants and
assigns as follows:
1. Guarantor absolutely, unconditionally and irrevocably
guarantees:
(a) the full and prompt payment of the principal of and
interest on the Notes and Facility 3 Note when due, whether at
stated
maturity, upon acceleration or otherwise, and at all times
thereafter,
and the full and prompt payment of all sums which may now be or
may
hereafter become due and owing under the Notes, the Facility 3
Note,
the Credit Agreement and the other Loan Documents;
(b) the prompt, full and complete performance of all of
Borrower's obligations under each and every covenant contained in
the
Loan
Documents; and
(c) the full and prompt payment of any Enforcement Costs (as
hereinafter defined in Section 6 hereof).
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All amounts due, debts, liabilities and
payment obligations described in
subsections (a) and (b) of this Section 1
shall be hereinafter collectively
referred to as the "Indebtedness."
2. In the event of any failure by Borrower in the payment of
the
Indebtedness, after the expiration of any
applicable cure or grace period,
Guarantor agrees, on demand by Agent, to
pay the Indebtedness regardless of any
defense, right of set-off or claims which
Borrower or Guarantor may have against
Agent or any Lender or the holder of the
Notes or the Facility 3 Note and
without relief from valuation and
appraisement laws.
All of the remedies set forth herein and/or provided for in any of
the
Loan Documents or at law or equity shall be
equally available to Agent, and the
choice by Agent of one such alternative
over another shall not be subject to
question or challenge by Guarantor or any
other person, nor shall any such
choice be asserted as a defense, setoff, or
failure to mitigate damages in any
action, proceeding, or counteraction by
Agent to recover or seeking any other
remedy under this Guaranty, nor shall such
choice preclude Agent from
subsequently electing to exercise a
different remedy. The parties have agreed to
the alternative remedies provided herein in
part because they recognize that the
choice of remedies in the event of a
default hereunder will necessarily be and
should properly be a matter of good faith
business judgment, which the passage
of time and events may or may not prove to
have been the best choice to maximize
recovery by Agent on behalf the Lenders at
the lowest cost to Borrower and/or
Guarantor. It is the intention of the
parties that such good faith choice by
Agent be given conclusive effect regardless
of such subsequent developments.
3. Guarantor does hereby (a) waive notice of acceptance of this
Guaranty by Agent and Lenders and any and
all notices and demands of every kind
which may be required to be given, or which
Guarantor may be entitled to
receive, by any statute, rule or law, (b)
agree to refrain from asserting, until
after repayment in full of the Loan, any
defense, right of set-off or other
claim which Guarantor may have against
Borrower (c) waive any defense, right of
set-off or other claim which Guarantor or
Borrower may have against Agent or any
Lender, or the holder of the Notes or the
Facility 3 Note, (d) waive any and all
rights Guarantor may have under any
anti-deficiency statute or other similar
protections, (e) waive presentment for
payment, demand for payment, notice of
nonpayment or dishonor, notice of
nonperformance, protest and notice of protest,
diligence in collection, diligence in
protection or realization upon the
Indebtedness or any security therefore, and
any and all formalities which
otherwise might be legally required to
charge Guarantor with liability, (f)
waive all defenses other than performance
by Agent required under the Loan
Documents, legal or equitable or otherwise
available to Guarantor as a guarantor
or surety, and (g) waive any failure by
Agent or any Lender to inform Guarantor
of any facts Agent or any Lender may now or
hereafter know about Borrower, the
Project, the Loan, or the transactions
contemplated by the Credit Agreement, it
being understood and agreed that Agent and
the Lenders have no duty so to inform
and that Guarantor is fully responsible for
being and remaining informed by
Borrower of all circumstances bearing on
the risk of nonperformance of
Borrower's obligations. Credit may be
granted or continued from time to time by
Lenders to Borrower without notice to or
authorization from Guarantor,
regardless of the financial or other
condition of Borrower at the time of any
such grant or continuation. Agent and
Lenders shall have no obligation to
disclose or discuss with Guarantor Agent's
or Lenders' assessment of the
financial condition of Borrower. Guarantor
acknowledges that no representations
of any kind whatsoever have been made by
Agent or any Lender. No
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modification or waiver of any of the
provisions of this Guaranty shall be
binding upon Agent or Lenders except as
expressly set forth in a writing duly
signed and delivered by Agent.
4. Guarantor further agrees that Guarantor's liability hereunder
as
guarantor shall not be impaired, affected,
released or discharged by any
renewals or extensions which may be made
from time to time, with or without the
knowledge or consent of Guarantor, of the
time for payment of interest or
principal under the Notes or the Facility 3
Note, or by any forbearance or delay
in collecting interest or principal under
the Notes or the Facility 3 Note, or
by any waiver by Agent under the Credit
Agreement, Mortgages or any other Loan
Document, or by Agent's or Lenders' failure
or election not to pursue any other
remedies it may have against Borrower or
Guarantor or any other guarantor of the
Indebtedness or any other security for the
Indebtedness, or by reason of the
incapacity, lack of authority or disability
of any other guarantor of the
Indebtedness or the failure of Agent or any
Lender to file or enforce a claim
against the estate of any other guarantor
of the Indebtedness or the failure of
any other guarantor to execute its
guaranty, or by reason of the fact that any
of the collateral for the Indebtedness may
be in default at the time of
acceptance thereby by Agent or any Lender
or later, or by reason of the fact
that a valid lien in any of the collateral
for the Indebtedness may not be
conveyed to or created in favor of Agent or
Lenders or by reason of the fact
that the collateral may be subject to
equities or defenses or claims in favor of
others or may be invalid or defective in
any way, or by reason of the fact that
any of the Indebtedness may be invalid for
any reason whatsoever, or by reason
of the fact that the value of any of the
collateral for the Indebtedness or the
financial condition of Borrower or any
obligor under or other guarantor of any
of the collateral for the Indebtedness may
not have been correctly estimated or
may have changed or may hereafter change or
by reason of any deterioration,
waste or loss by fire, theft or otherwise,
or by any change or modification in
Indebtedness, the Notes, the Facility 3
Note, the Credit Agreement, the
Mortgages or any other Loan Document, or by
the acceptance by Agent or any
Lender of any additional security or any
increase, substitution or change
therein, or by the release by Agent or any
Lender of any security or any
withdrawal thereof or decrease therein, or
by the application of payments
received from any source to the payment of
any obligation other than the
Indebtedness even though Agent or Lenders
might lawfully have elected to apply
such payments to any part or all of the
Indebtedness, it being the intent hereof
that, subject to Agent's compliance with
the terms of this Guaranty, Guarantor
shall remain liable for the payment of the
Indebtedness, until the Indebtedness
has been paid in full, notwithstanding any
act or thing which might otherwise
operate as a legal or equitable discharge
of a guarantor or surety. Guarantor
further understands and agrees that Agent
or Lenders may at any time enter into
agreements with Borrower to amend and
modify the Notes, the Facility 3 Note, the
Credit Agreement, the Mortgages or any
other Loan Document, and may waive or
release any provision or provisions of the
Notes, the Facility 3 Note, the
Credit Agreement, the Mortgages and other
Loan Documents or any thereof, and,
with reference to such instruments, may
make and enter into any such agreement
or agreements as Agent or Lenders and
Borrower may deem proper and desirable,
without in any manner impairing or
affecting this Guaranty or any of Agent's or
Lender's rights hereunder or Guarantor's
obligations hereunder.
5. This is an absolute, present and continuing guaranty of payment
and
not of collection. Guarantor agrees that
this Guaranty may be enforced by Agent
without the necessity at any time of
resorting to or exhausting any other
security or collateral given in connection
herewith or with the Notes, the
Facility 3 Note, the Credit Agreement, the
Mortgages or any of
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the other Loan Documents through
foreclosure or sale proceedings, as the case
may be, under the Mortgages or otherwise,
or resorting to any other guaranties,
and Guarantor hereby waives any right to
re
