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EXHIBIT 10.2
UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE
FOR AND IN
CONSIDERATION OF the sum of Ten and No/100 Dollars ($10.00) and
other good and valuable consideration paid
or delivered to the undersigned
WINDROSE MEDICAL PROPERTIES TRUST, a
Maryland real estate investment trust (the
"Guarantor"), the receipt and sufficiency
whereof are hereby acknowledged by
Guarantor, and for the purpose of seeking
to induce KEYBANK NATIONAL
ASSOCIATION, a national banking association
(hereinafter referred to as
"Lender," which term shall also include
each other lender which may now or
hereafter become party to the "Credit
Agreement" (as hereinafter defined) and
shall also include any such individual
lender acting as agent for all of the
lenders), to extend credit or otherwise
provide financial accommodations to
WINDROSE MEDICAL PROPERTIES, L.P., a
Virginia limited partnership ("Borrower"),
which extension of credit and provision of
financial accommodations, Guarantor
acknowledges will be to the direct
interest, advantage and benefit of Guarantor
because of their mutual dependence upon
each other in the conduct of their
business as an integrated operation,
Guarantor does hereby, jointly and
severally, absolutely, unconditionally and
irrevocably guarantee to Lender:
(a) the full and prompt payment when due, whether by acceleration
or
otherwise, either before or after maturity
thereof, of those certain Notes dated
December 6, 2005, made by Borrower to the
order of KeyBank National Association
and the other Banks that are parties to the
"Credit Agreement" (as hereinafter
defined) as of the date hereof in the
aggregate principal face amount of Twenty
Million and No/100 Dollars
($20,000,000.00), together with interest as provided
in the Notes, together with any
replacements, supplements, renewals,
modifications, consolidations, restatements
and extensions thereof; and
(b) the full and prompt payment when due, whether by acceleration
or
otherwise, either before or after maturity
thereof, of each other note as may be
issued under that certain Bridge Loan
Agreement dated as of December 6, 2005
(herein referred to as the "Credit
Agreement"), among Borrower, the Guarantor,
KeyBank National Association, for itself
and as Agent, and the other Banks which
may become a party thereto, together with
interest as provided in each such
note, together with any replacements,
supplements, renewals, modifications,
consolidations, restatements and extensions
thereof (the Notes described in
subparagraph (a), above, and each of the
notes described in this subparagraph
(b) are hereinafter referred to
collectively as the "Note"); and
(c) the full and prompt payment and performance of all obligations
of
Borrower to Lender under the terms of the
Credit Agreement, together with any
replacements, supplements, renewals,
modifications, consolidations, restatements
and extensions thereof; and
(d) the full and prompt payment and performance of any and all
other
obligations of Borrower to Lender under the
other Loan Documents.
All terms used
herein and not otherwise defined herein shall have the
meanings set forth in the Credit
Agreement.
1. Agreement to
Pay and Perform; Costs of Collection. Guarantor does hereby
agree that if the Note is not paid by
Borrower in accordance with its terms, or
if any and all sums which are now or may
hereafter become due from Borrower to
Lender under the Loan Documents are not
paid by Borrower in accordance with the
terms of the Loan Documents, or if
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any and all other obligations of Borrower
to Lender under the Note and the other
Loan Documents are not performed by
Borrower in accordance with their terms,
Guarantor will immediately upon demand from
Agent make such payments and perform
such obligations. Guarantor further agrees
to pay Lender on demand from Agent
all reasonable costs and expenses
(including court costs and reasonable
attorneys' fees and disbursements) paid or
incurred by Lender in endeavoring to
collect the indebtedness guaranteed hereby,
to enforce any of the other
obligations of Borrower guaranteed hereby,
or any portion thereof, or to enforce
this Guaranty, and until paid to Lender,
such sums shall bear interest at the
default rate set forth in the Credit
Agreement unless collection from Guarantor
of interest at such rate would be contrary
to applicable law, in which event
such sums shall bear interest at the
highest rate which may be collected from
Guarantor under applicable law. This is a
continuing guaranty of all amounts
advanced to Borrower under the Notes and
the Credit Agreement and all other
Obligations, whether advanced or incurred
on or subsequent to the date hereof.
2. Reinstatement
of Refunded Payments. If, for any reason, any payment to
any Lender of any of the obligations
guaranteed hereunder is required to be
refunded by such Lender to Borrower, or
paid or turned over to any other person,
including, without limitation, by reason of
the operation of bankruptcy,
reorganization, receivership or insolvency
laws or similar laws of general
application relating to creditors' rights
and remedies now or hereafter enacted,
Guarantor agrees to pay the amount so
required to be refunded, paid or turned
over (the "Turnover Payment"), the
obligations of Guarantor shall not be treated
as having been discharged by the original
payment to such Lender giving rise to
the Turnover Payment, and this Guaranty
shall be treated as having remained in
full force and effect for any such Turnover
Payment so made by such Lender, as
well as for any amounts not theretofore
paid to such Lender on account of such
obligations.
3. Rights of
Lender to Deal with Collateral, Borrower and Other Persons.
Guarantor hereby consents and agrees that
Lender may at any time, and from time
to time, without thereby releasing
Guarantor from any liability hereunder and
without notice to or further consent from
Guarantor, either with or without
consideration: release or surrender any
lien or other security of any kind or
nature whatsoever held by Lender or by any
person, firm or corporation on
Lender's behalf or for Lender's account
(including Agent), securing any
indebtedness or liability hereby
guaranteed; substitute for any collateral so
held by Lender, other collateral of like
kind, or of any kind; modify the terms
of the Note or the other Loan Documents;
extend or renew the Note for any
period; grant releases, compromises and
indulgences with respect to the Note or
the other Loan Documents and to any persons
or entities now or hereafter liable
thereunder or hereunder; release any other
Guarantor, surety, endorser or
accommodation party of the Note or any
other Loan Documents; or take or fail to
take any action of any type whatsoever. No
such action which Lender shall take
or fail to take in connection with the Note
or the other Loan Documents, or any
of them, or any security for the payment of
the indebtedness of Borrower to
Lender or for the performance of any
obligations or undertakings of Borrower,
nor any course of dealing with Borrower or
any other person, shall release
Guarantor's obligations hereunder, affect
this Guaranty in any way or afford
Guarantor any recourse against Lender. The
provisions of this Guaranty shall
extend and be applicable to all
replacements, supplements, renewals, amendments,
extensions, consolidations, restatements
and modifications of the Note and the
other Loan Documents, and any and all
references herein to the Note and the
other Loan Documents shall be deemed to
include any such replacements,
supplements, renewals, extensions,
amendments, consolidations, restatements or
modifications thereof. Without limiting
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the generality of the foregoing, Guarantor
acknowledges the terms of Section
18.3 of the Credit Agreement and agrees
that this Guaranty shall extend and be
applicable to each new or replacement Note
delivered by Borrower pursuant
thereto.
4. No Contest
with Lender; Subordination. So long as any obligation hereby
guaranteed remains unpaid or undischarged,
Guarantor will not, by paying any sum
recoverable hereunder (whether or not
demanded by Lender) or by any means or on
any other ground, claim any set-off or
counterclaim against Borrower in respect
of any liability of Guarantor to Borrower
or, in proceedings under federal
bankruptcy law or insolvency proceedings of
any nature, prove in competition
with Lender in respect of any payment
hereunder or be entitled to have the
benefit of any counterclaim or proof of
claim or dividend or payment by or on
behalf of Borrower or the benefit of any
other security for any obligation
hereby guaranteed which, now or hereafter,
Lender may hold or in which Lender
may have any share. Guarantor hereby
expressly waives any right of contribution
from or indemnity against Borrower, whether
at law or in equity, arising from
any payments made by Guarantor pursuant to
the terms of this Guaranty, and
Guarantor acknowledges that Guarantor has
no right whatsoever to proceed against
Borrower for reimbursement of any such
payments. In connection with the
foregoing, Guarantor expressly waives any
and all rights of subrogation to
Lender against Borrower, and Guarantor
hereby waives any rights to enforce any
remedy which Lender may have against
Borrower and any rights to participate in
any collateral for Borrower's obligations
under the Loan Documents. Guarantor
hereby subordinates any and all
indebtedness of Borrower now or hereafter owed
to Guarantor to all indebtedness of
Borrower to Lender, and agrees with Lender
that (a) Guarantor shall not demand or
accept any payment from Borrower on
account of such indebtedness; provided
that, without modifying any limitations
on Indebtedness in the Credit Agreement,
Guarantor shall be entitled to receive,
retain and distribute payments of
indebtedness made from Borrower to Guarantor
so long as no Default or Event of Default
shall exist at the time of such
payment and no Default or Event of Default
shall occur as a result of any such
payment, (b) Guarantor shall not claim any
offset or other reduction of
Guarantor's obligations hereunder because
of any such indebtedness, and (c)
Guarantor shall not take any action to
obtain any interest in any of the
security described in and encumbered by the
Loan Documents, if any, or any other
assets of Borrower or any other guarantor
or surety of the Obligations because
of any such indebtedness; provided,
however, that, if Agent so requests during
the continuance of an Event of Default,
such indebtedness shall be collected,
enforced and received by Guarantor as
trustee for Lender and be paid over to
Agent for the benefit of Lender on account
of the indebtedness of Borrower to
Lender, but without reducing or affecting
in any manner the liability of
Guarantor under the other provisions of
this Guaranty except to the extent the
principal amount of such outstanding
indebtedness shall have been reduced by
such payment by Guarantor over to Agent on
account of the indebtedness of
Borrower to Lender guaranteed hereby.
5. Waiver of
Defenses. Guarantor hereby agrees that its obligations
hereunder shall not be affected or impaired
by, and hereby waives and agrees not
to assert or take advantage of any defense
based on:
(a) (i) any change in the amount, interest rate or due date or
other
term of any of the obligations hereby
guaranteed, (ii) any change in the time,
place or manner of payment of all or any
portion of the obligations hereby
guaranteed, (iii) any amendment or waiver
of, or consent to the departure from
or other indulgence with respect to, the
Credit Agreement, any other Loan
Document, or any other document or
instrument evidencing or relating to any
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obligations hereby guaranteed, or (iv) any
waiver, renewal, extension, addition,
or supplement to, or deletion from, or any
other action or inaction under or in
respect of, the Credit Agreement, any of
the other Loan Documents, or any other
documents, instruments or agreements
relating to the obligations hereby
guaranteed or any other instrument or
agreement referred to therein or
evidencing any obligations hereby
guaranteed or any assignment or transfer of
any of the foregoing;
(b) any statute of limitations in any action hereunder or for
the
collection of the Note or for the payment
or performance of a
