THIRD AMENDED AND RESTATED
GUARANTY
THIS THIRD AMENDED
AND RESTATED GUARANTY (“ Guaranty ”) made as of
the 19th day of September, 2006, 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
”).
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 Third 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 Fifty-Three Million Dollars
($53,000,000) (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.
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
the LOC Facility 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 LOC Facility
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).
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 LOC Facility 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 LOC Facility 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 LOC
Facility Note, or by any forbearance or delay in collecting
interest or principal under the Notes or the LOC Facility 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 LOC Facility 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 LOC
Facility Note, the Credit Agreement, the Mortgages or any other
Loan Document, and may waive or release any provision or provisions
of the Notes, the LOC Facility 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 LOC Facility Note, the Credit
Agreement, the Mortgages or any
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of the other
Loan Documents through foreclosure or sale proceedings, as the case
may be, under the Mortgages or otherwise, or res
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