GUARANTY OF NON-RECOURSE CARVE-OUTS
GUARANTY OF NON-RECOURSE CARVE-OUTS
| Date: | September 16, 2010 |
|
| Borrower: | G&E XX XXXX XX Pocatello MOB, LLC, a Delaware limited liability company |
|
| Guarantor: | Xxxxx & Xxxxx Healthcare REIT II, Inc., a Maryland corporation |
|
| Guarantor’s Notice Address: | ||
0000 X. Xxxxxx Xxxxxx, Xxxxx 000 Xxxxx Xxx, XX 00000 Attn: Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxxxx |
||
| Lender: | Sun Life Assurance Company of Canada, a Canadian corporation, together with other holders from time to time of the Note (as herein defined). |
|
| Lender’s Notice Address: | ||
c/o Sun Life Assurance Company of Canada One Sun Life Executive Park Wellesley Hills, Massachusetts 02481 Attention: Mortgage Investments Group |
||
| State: Idaho | ||
| Note: | a Promissory Note from Borrower to Lender, of even date herewith, in the principal amount of $8,000,000.00, and all replacements, substitutions, modifications, renewals and extensions thereof. |
|
| Property: | a leasehold interest in the land, improvements and personal property located at 000 Xxxxxxxx Xxx, Xxxxxxxx X, Xxxxxxxxx, Xxxxx. |
|
| Mortgage: | a certain Leasehold Deed of Trust, Security Agreement and Fixture Filing from Borrower to Lender encumbering the Property, of even date herewith, and all modifications or amendments thereto or extensions thereof. |
|
1. Definition of Terms. As used herein, the terms defined above shall have the meanings given above and any capitalized terms not defined herein shall have the meanings given them in the Mortgage.
2. Guaranty. Guarantor acknowledges that because of Guarantor’s relationship to Xxxxxxxx, Guarantor will substantially benefit from the making of the loan from Lender to Borrower evidenced by the Note. For this and other valuable consideration, Guarantor hereby assumes liability for, hereby agrees to pay, and hereby guarantees payment to Lender of, all claims, demands, liabilities, losses, damages, judgments, penalties, costs and expenses, including, without limitation, reasonable attorney’s fees and disbursements (collectively, “Damages and Expenses”), which may be imposed upon, asserted against or incurred or paid by Xxxxxx by reason of, on account of or in connection with, any of the following:
(a) all Damages and Expenses incurred by Lender due to any of the following: (i) security deposits of tenants of the Property (not previously applied to remedy tenant defaults or previously returned to tenants in accordance with the express provisions of their leases) which have not been paid over to Lender; (ii) any rents prepaid by any tenant of the Property more than one (1) month in advance; (iii) any insurance proceeds or condemnation awards received by Xxxxxxxx and not applied according to the terms of the Mortgage; (iv) accepting Lease termination payments without Xxxxxx’s prior written consent and direction as to use; (v) repairs to the Property resulting from a casualty not reimbursed by insurance, to the extent insurance coverage for such repairs was required by the Loan Documents; (vi) fraud, material misrepresentation or bad faith on the part of Borrower; (vii) any event or circumstance for which Borrower is obligated to indemnify Lender under the provisions of the Mortgage respecting Hazardous Substances, Contamination or Clean-Up; (viii) waste of the Property by Borrower; (ix) Borrower’s failure to pay real estate taxes or other assessments against the Property; (x) Borrower’s failure to comply with the Americans with Disabilities Act of 1990, as amended, or (xi) if the ground lessee (the “Ground Lessee”) under that certain Ground Lease disclosed by that certain Memorandum of Ground Lease recorded in Bannock County, Idaho on March 1, 1983 as Instrument Nos. 703253 and 703254 and amended by Amendment recorded in Bannock County, Idaho on December 10, 1996 as Instrument No. 96020658 blocks access over the portion of North Loop Road crossing over said Ground Lessee’s leased parcel between Hospital Way and the Property; and
(b) all rents, issues and profits from the Property collected by Borrower after an Event of Default has occurred and is continuing or after an event or circumstance has occurred and is continuing which with the passage of time or the giving of notice, or both, would constitute an Event of Default, unless such rents, issues and profits are applied to the normal operating expenses of the Property or to the debt secured by the Mortgage.
3. Primary and Continuing Nature of Guaranty. The liability of Guarantor hereunder is present, absolute, unconditional, continuing, primary, direct and independent of the obligations guaranteed hereby. Lender shall not be required to pursue any other remedies before invoking the benefits of this Guaranty, including, without limitation, its remedies under the Note, the Mortgage and the other Loan Documents. The liability of Guarantor shall remain and continue in full force and effect notwithstanding:
(a) the nonliability of Borrower for any reason whatsoever for the payment and performance of all or any part of the obligations guaranteed hereby;
(b) the voluntary or involuntary liquidation, dissolution, sale of all or substantially all of the property described in the Mortgage and the other Loan Documents, marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or any similar proceeding affecting Borrower or any of its assets;
(c) the release of Borrower from the observance of any of the agreements, covenants, terms or conditions contained in the Note, the Mortgage and the other Loan Documents by operation of law; and
(d) any defenses or rights of set-off or counter claims which Borrower may have or assert.
4. Representations and Warranties. Guarantor represents and warrants that the following are true, correct and complete as of the date hereof:
(a) Each and every warranty and representation made by Borrower in the Note, the Mortgage and the other Loan Documents is, to the best of Guarantor’s knowledge, true, correct and complete.
(b) This Guaranty constitutes a legal, valid and binding obligation of Guarantor, and is fully enforceable in accordance with its terms.
(c) Neither the execution nor delivery of this Guaranty nor fulfillment of nor compliance with the terms and provisions hereof will conflict with, or result in a breach of the terms, conditions or provisions of, or constitute a default under or result in a creation of any lien, charge or encumbrance upon any property or assets of Guarantor under any agreement or instrument to which Guarantor is now a party or by which Guarantor may be bound.
(d) Neither Guarantor, nor Borrower, nor any beneficial owner of the Property is a Related Party of Lender. “Related Party” means an officer, director, employee, significant shareholder, or such person’s spouse or minor child.
5. Financial Statements. Guarantor shall furnish Lender, immediately upon demand by Xxxxxx, with the most recent quarterly financial statements detailing the income, assets and liabilities of Guarantor as filed with the U.S. Securities and Exchange Commission.
6. Waivers by Guarantor. Guarantor hereby waives:
(a) any right to require Lender to: (i) proceed against Borrower; (ii) proceed against, exhaust or participate in any security held by Lender for the payment and performance of the obligations guaranteed hereby; or (iii) pursue any other remedy Lender has or to which Lender may be entitled;
(b) any right of subrogation Guarantor has, or to which Guarantor may be entitled, in and to the benefit of any security which Lender may at any time hold in connection with the obligations guaranteed hereby until such obligations have been paid and performed in full;
(c) notice of the acceptance of this Guaranty and presentment, demand, protest and notice of protest, nonpayment, default or dishonor of the obligations guaranteed hereby or any renewal or extension thereof; and
(d) diligence on the part of Lender in the collection of the monetary sums included in the obligations guaranteed hereby, notice of the failure of Borrower to pay or perform all or any of such obligations in a timely manner, and diligence on the part of Lender in preserving the liability of any person on any of such obligations.
7. No Waiver by Xxxxxx. No failure, omission or delay on the part of Lender in exercising any rights hereunder or in taking any action to collect or enforce payment or performance of the obligations guaranteed hereby or in enforcing observance or performance of any agreement, covenant, term or condition to be performed or observed under the Note, the Mortgage or the other Loan Documents, either against Borrower or any other person liable therefore shall operate as a waiver of any such right or in any manner prejudice the rights of Lender against Guarantor.
8. Subordination. Guarantor hereby agrees that any claim for repayment it may have with respect to any amount it advances or becomes obligated to advance because of this Guaranty shall be at all times subordinate to the claims of Lender under the Note, the Mortgage and the other Loan Documents in all respects, including, without limitation, priority of lien and time of payment.
9. Multiple Guarantors. If there is more than one Guarantor:
(a) the obligations, covenants, warranties and representations of each Guarantor shall be joint and several;
(b) the granting of a written release of liability hereunder of less than all of the Guarantors shall be effective with respect to the liability hereunder only of those specifically so released, but shall in no way affect the liability hereunder of any Guarantor not so released; and
(c) each Guarantor waives any right to require Lender to proceed against any other Guarantor. Any prior or subsequent guaranty to Lender shall not be deemed to be in lieu of or to supersede or terminate this Guaranty but shall be construed as an additional or supplementary guaranty unless otherwise expressly provided therein.
10. General.
(a) Costs and Expenses. Guarantor shall pay all reasonable attorneys’ fees, costs and expenses incurred by Xxxxxx in the enforcement of this Guaranty.
(b) Governing Law. This Guaranty shall be enforced and construed in accordance with the laws of the State and Guarantor waives the right to be sued elsewhere.
(c) Successors and Assigns. If Guarantor is a natural person or persons, this Guaranty shall not be discharged or in any way affected by the death of Guarantor (or any one of them if Guarantor consists of more than one natural person). This Guaranty shall be binding upon Xxxxxxxxx and the heirs, successors and legal representatives of Guarantor, and shall inure to the benefit of Xxxxxx and the successors, assigns and legal representatives of Xxxxxx. Guarantor may not assign its rights or delegate its duties under this Guaranty. The transfer or assignment by Xxxxxx of the Note shall operate as a transfer or assignment to the transferee or assignee of this Guaranty and all rights and privileges hereunder.
(d) Cumulative Remedies. All of Lender’s rights, remedies and recourse under the Note, the Mortgage and the other Loan Documents, or this Guaranty, are non-exclusive, separate and cumulative and may be pursued separately, successively or concurrently, and the exercise of any one of more of them shall in no way limit or prejudice any other legal or equitable right, remedy or recourse to which Lender may be entitled.
(e) Gender and Number. Whenever the context so requires the masculine gender shall include the feminine and/or neuter and the singular number shall include the plural and conversely in each case.
(f) Modification. No provision hereof shall be modified or limited except by a written agreement expressly referring hereto and to the provision so modified or limited and signed by Guarantor and Lender, nor shall this Guaranty be modified or limited by course of conduct, usage or trade, or by the law of merchants.
(g) Severability. In case any one or more of the provisions contained in this Guaranty shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Guaranty shall be construed as if such invalid, illegal or unenforceable provision has never been contained herein.
(h) Notices. Any notice, request, demand or other communication required or permitted under this Guaranty (unless otherwise expressly provided therein) shall be given in writing by delivering the same in person to the intended addressee, by overnight courier service with guaranteed next day delivery or by certified United States Mail postage prepaid sent to the intended addressee at the applicable Notice Address or to such different address as either Guarantor or Lender shall have designated by written notice to the other sent in accordance herewith. Such notices shall be deemed given when received or, if earlier, in the case of delivery by courier service with guaranteed next day delivery, the next day or the day designated for delivery, or in the case of delivery by certified United States Mail, 2 days after deposit therein. No notice to or demand on Guarantor in any case shall of itself entitle Guarantor to any other or further notice or demand in similar or other circumstances.
(i) Survival. This Guaranty and the obligations of Guarantor hereunder shall survive the discharge of the Mortgage, whether through full payment of the Note, foreclosure, deed in lieu of foreclosure or otherwise.
[Signature of Guarantor Appears on the Following Page]
IN WITNESS WHEREOF, this Guaranty has been executed and delivered as of the date first above written.
GUARANTOR:
Xxxxx & Xxxxx Healthcare REIT II, Inc., a
Maryland corporation
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: President and Chief Operating Officer
