UNCONDITIONAL AND CONTINUING GUARANTY
EXHIBIT 10.2
UNCONDITIONAL AND CONTINUING GUARANTY
THIS GUARANTY is made effective as of September 12, 2006 (the “Effective Date”) by WINDROSE
MEDICAL PROPERTIES TRUST, a Maryland real estate investment trust (“Guarantor”), in favor of HEALTH
CARE REIT, INC., a corporation organized under the laws of the State of Delaware (“Lender”).
R E C I T A L S
A. Lender is extending to Windrose Medical Properties, L.P., a limited partnership organized
under the laws of the State of Virginia (“Borrower”), a loan in an amount of $125,000,000.00
(“Loan”), subject to adjustments in the amount as set forth in the Loan Documents. The Loan is
evidenced by a promissory note made by Borrower in favor of Lender dated this date (“Note”) and is
made pursuant to the terms of a Loan Agreement between Lender and Borrower (“Loan Agreement”).
B. In order to extend the Loan to Borrower, Lender requires that this guaranty be provided by
Guarantor. Guarantor is the parent of Borrower and has determined that Guarantor will benefit from
the Loan to Borrower and has agreed to provide this guaranty to Lender.
C. As used herein, “Loan Documents” means the Loan Agreement, Note, and all other documents
and agreements made in connection with the Loan, as amended, modified, renewed or extended from
time to time. “Credit” means all principal, interest, charges, expenses and all other amounts
payable by Borrower to Lender pursuant to the Loan Documents. “Security” includes all guaranties
of any Credit, all interests in real or personal property securing the payment of any Credit or any
guaranties of any Credit, and all other agreements, rights, or interests insuring or guaranteeing
payment of any Credit. “Loan Obligations” means all of the covenants, obligations and liabilities
of Borrower under the Loan Documents, including the payment of the Credit when due.
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Lender and Guarantor
agree as follows:
1. Guaranty. Guarantor unconditionally guarantees the prompt payment when due of the
Credit and shall indemnify Lender and hold Lender harmless from any costs and expenses in any way
arising out of Borrower’s failure to repay the Credit according to its terms.
2. Warranties.
(a) Capacity. Guarantor is a real estate investment trust duly organized, validly
existing and in good standing under the laws of the State of Maryland. Guarantor warrants that
Guarantor has taken all necessary company action to incur the obligations of this guaranty and to
execute, deliver and perform this guaranty.
(b) Contracts. Guarantor warrants that there is no existing indenture, contract, or
agreement to which Guarantor is a party, no articles or other organizational document of Guarantor,
and no provision of any law, administrative regulation, court order, or consent decree, that would
be contravened by the execution, delivery, or performance of this guaranty.
(c) Inducement to Lender; Waivers. Guarantor [1] acknowledges that Lender would not
have extended the Credit to Borrower and will not continue to extend Credit to Borrower but for
this guaranty; [2] warrants that Guarantor has given this guaranty to induce Lender to extend and
to continue to extend Credit to Borrower; [3] agrees that Lender may rely on this guaranty in
extending future Credit to Borrower without notice to Guarantor; [4] warrants that Guarantor has
received good and valuable consideration for this guaranty; [5] waives acceptance of this guaranty;
[6] warrants that Guarantor has not given this guaranty in reliance upon the existence of any
Security; [7] acknowledges receipt of notice of all Credit extended before this date; [8] waives
notice of any Credit extended after this date; [9] waives, to the extent permitted by law, protest
and any other notice of failure to pay the Credit or to perform any agreement relating to any
Credit or Security; [10] acknowledges that Guarantor has read this guaranty, the Note, and all
other documents in connection with the Loan; and [11] acknowledges that Guarantor understands and
agrees to Guarantor’s obligations under this guaranty.
(d) No Reliance on Information from Lender. Guarantor [1] warrants that Guarantor has
not relied on any information about the Borrower, the Security, or any guarantor of the Credit
provided directly or indirectly by Lender; [2] warrants that Guarantor is familiar with Borrower,
Borrower’s affairs, and the Security; [3] warrants that Guarantor has had ample opportunity to
investigate Borrower, Borrower’s affairs, the Security, and the effect that the Credit will have;
[4] warrants that Guarantor has been provided all information concerning Borrower, Borrower’s
affairs, and the Security that Guarantor has requested; [5] warrants that Guarantor has had
adequate opportunity to seek and evaluate professional advice concerning Borrower, the Security,
and this guaranty from advisors of Guarantor’s choosing, including financial and legal advice; and
[6] agrees that Guarantor shall not rely on any information provided by Lender about Borrower or
the Security, including any other guarantor. Guarantor shall continue to investigate and evaluate
Borrower and the Security independently throughout the term of this guaranty, and Lender has no
obligation to provide Guarantor any information about the Borrower or the Security.
(e) No Insolvency. On the date of the Guarantor’s entering into this guaranty and
after giving effect to all indebtedness of the Guarantor, [1] the Guarantor will be able to pay
Guarantor’s obligations as they become due and payable; [2] the present fair saleable value of the
Guarantor’s assets exceeds the amount that will be required to pay Guarantor’s probable liability
on its obligations as the same become absolute and mature; [3] the sum of the Guarantor’s property
at a fair valuation exceeds Guarantor’s indebtedness; and [4] the Guarantor will have sufficient
capital to engage in Guarantor’s businesses. The proceeds of the Credit constitute fair
consideration and reasonably equivalent value for this guaranty.
3. Waivers. Without notice to or consent of Guarantor and to the extent permitted by
law, Lender may do or refrain from doing anything affecting any Credit or any Security including
the following: [a] granting or not granting any indulgences to anyone liable
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for payment of the Credit or any Security; [b] failing to get or to perfect any Security; [c]
failing to get an enforceable agreement to repay the Credit; [d] releasing any Security or anyone
or any property from liability for payment of the Credit; [e] changing any agreement relating to
the Credit or any Security including, without limitation, any change in the schedule or manner for
the payment of any Credit and any increase or decrease in the rate of interest payable thereon; [f]
extending the time for payment of the Credit including extending the time beyond the term of the
Note; [g] exercising any right or remedy, including, without limitation, taking a deed in lieu of
foreclosure; [h] applying any funds received from Borrower, Guarantor or any other party and any
funds realized from any Security in such manner and in such order or priority as Lender elects in
its sole discretion; and [i] delaying in enforcing or failing to enforce any rights to payment of
the Credit or rights against any Security. In the event that Lender forecloses or otherwise
realizes on any Security for repayment of the Credit, Guarantor agrees that the purchase price at
any judicial or nonjudicial sale of the Security paid by Lender or any other party shall be
conclusive evidence of the value of the Security and Lender shall have an absolute right to obtain
a deficiency judgment against Guarantor of all amounts due in excess of such purchase price, even
though any rights which Guarantor may have against others might be destroyed or diminished by the
exercise of any such remedy by Lender. Guarantor waives, to the extent permitted by law, the right
to contest the value of the Security through appraisals or otherwise, and waives any defense to a
deficiency judgment that Guarantor may have pursuant to any statute or other applicable law.
4. Defects in Security, Etc. Guarantor’s liability under this guaranty shall not be
affected by [a] any default in any document concerning any Credit or Security when accepted by
Lender or arising any time thereafter; [b] the unenforceability of or defect in any Security or
document relating to any Credit; [c] any decline in the value of any Security; [d] Lender’s failure
to obtain any Security or to perfect Lender’s security interest therein; or [e] the death,
incompetence, insolvency, dissolution, liquidation, or winding up of affairs of Borrower,
Guarantor, or anyone liable for any Security or the start of insolvency proceedings by or against
any such person or entity.
5. Waiver of Surety’s Defenses. TO THE EXTENT PERMITTED BY LAW, GUARANTOR WAIVES ALL
SURETYSHIP AND OTHER SIMILAR DEFENSES.
6. Unconditional Obligation. If Borrower fails to pay all or any part of any Credit
when due after expiration of any applicable grace, notice or cure period, Guarantor shall
immediately pay to Lender all amounts then due and payable in connection with any Credit,
regardless of whether or not Lender first pursues Borrower or exhausts any of its rights or
remedies against Borrower, any other Guarantor, others, or other Security. Guarantor shall not
have any right of subrogation to the rights of Lender against any of the assets of Borrower or any
other guarantor of the Loan until after indefeasible payment in full of the Credit.
7. Continuing Obligation. This guaranty shall extend and be applicable to all
renewals, amendments, extensions, consolidations, modifications, increases and reductions of the
Loan Documents and the Credit. Guarantor’s liability under this guaranty shall not be reduced or
cancelled by any such action and shall be deemed modified in accordance with the terms of such
action, whether or not Guarantor has notice of such action.
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8. Subsequent Guaranties. No subsequent guaranty to Lender by Guarantor shall
supersede or terminate this guaranty, but shall be an additional guaranty unless otherwise stated
therein and, if Guarantor has given a previous guaranty to Lender, this guaranty shall be in
addition to the previous guaranty.
9. Successors, Etc. This guaranty shall be binding upon not only Guarantor but also
Guarantor’s heirs, administrators, personal representatives, successors and assigns and shall inure
to the benefit of Lender and its successors and assigns.
10. Termination; Revocation. Subject to reinstatement pursuant to §12 this guaranty
shall automatically terminate on the date on which all of the Credit is repaid in full. No
revocation of this guaranty or any substitute guaranty by Guarantor shall be effective until all of
the Credit has been repaid in full.
11. Survival. The obligations of the Guarantor under this guaranty will continue to
be effective or shall be reinstated, as the case might be, if at any time any payment from Borrower
of any sum due to the Lender is rescinded or must otherwise be restored or returned by the Lender
on the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Borrower or as a
result of the appointment of a custodian, conservator, receiver, trustee or other officer with
similar powers with respect to the Borrower or any part of the Borrower’s property or otherwise.
If an event permitting the acceleration of the maturity of the Loan has occurred and is continuing
and such acceleration is at such time prevented by reason of the pendency against the Borrower of a
proceeding under any bankruptcy or insolvency law, Guarantor agrees that, for the purposes of this
guaranty and the obligations of Guarantor under this guaranty, the maturity of the Loan will be
deemed to have been accelerated with the same effect as if the Lender had accelerated the same in
accordance with the terms of the Loan Documents and Guarantor will immediately pay the unpaid
balance of the Credit.
12. Governing Law. This guaranty shall be governed by and construed in accordance
with the internal laws of the State of Ohio, without giving effect to the conflict of laws rules
thereof.
13. Number; Gender. Where appropriate, the number of any word in this guaranty shall
include both singular and plural, the gender of any word shall be masculine, feminine, or neuter.
14. Enforceability. If any provision of this guaranty or the application thereof to
anyone or any circumstance shall be adjudged invalid or unenforceable to any extent, the
application of the remainder of the provision to the party or circumstance, the application of the
provision to other parties or circumstances, and the application of the remainder of this guaranty
shall not be affected thereby. Each provision of this guaranty shall be valid and enforceable to
the fullest extent permitted by law.
15. No Waivers by Lender. No forbearance by Lender in exercising any right under this
guaranty, any Credit, or any Security shall operate as a waiver thereof; no forbearance in
exercising any right under this guaranty, any Credit, or any Security on any one or more occasions
shall operate as a waiver of such right on any other occasion; and no single or partial
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exercise of any right under this guaranty, any Credit, or any Security shall preclude any
other or further exercise thereof or the exercise of any other right, power, or privilege.
Lender’s rights under this guaranty are cumulative and not exclusive of any rights or remedies that
Lender may otherwise have.
16. Fees and Expenses. Guarantor shall pay to Lender all reasonable costs and
expenses incurred by Lender in administering the Loan and the Security, enforcing or protecting
Lender’s rights in connection with any Credit, Security or this guaranty and in collecting payment
on any Credit or this guaranty, whether or not an Event of Default (as defined in the Note) has
actually occurred or has been declared and thereafter cured, including, but not limited to, [a]
reasonable attorney’s fees and paralegal fees; [b] the fees and expenses of any litigation,
administrative, bankruptcy, insolvency, receivership or any other similar proceeding; [c] court
costs; [d] the expenses of Lender, its employees, agents, and witnesses in preparing for litigation
and for lodging, travel, and attendance at pretrial hearings, depositions, and trials; and [e]
consulting fees and expenses incurred by Lender in connection with any litigation.
17. Notices. Any notices required or desired to be given under this guaranty shall be
in writing and shall be delivered in the manner set forth in the Note, and if to Lender, delivered
to Lender at Xxx XxxXxxx, Xxxxx 0000, X.X. Xxx 0000, Xxxxxx, Xxxx 00000-0000 and if to a
Guarantor, to the address set forth opposite such Guarantor’s signature, or to such other address
as Lender or any Guarantor may hereafter give written notice thereof. All notices shall be
effective upon the earlier of actual receipt or three days after deposit in the U.S. mail or one
business day after deposit with the overnight courier.
18. Amendment. This guaranty may not be amended except in a writing signed by
Guarantor and Lender. All references to this guaranty, whether in this guaranty or any other
document or instrument, shall be deemed to incorporate all amendments, modifications, renewals and
extensions of this guaranty and all substitutions therefor made after the date hereof.
19. Counterparts. This guaranty may be executed in multiple counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
instrument.
20. JURISDICTION AND VENUE. GUARANTOR IRREVOCABLY SUBMITS AND CONSENTS TO THE
NONEXCLUSIVE JURISDICTION AND VENUE OF ANY STATE OR FEDERAL COURT HAVING JURISDICTION OVER XXXXX
COUNTY, OHIO OR ANY COUNTY IN WHICH PROPERTY THAT IS SUBJECT TO THE MORTGAGE IS LOCATED, FOR
ADJUDICATION OF ALL MATTERS IN CONTROVERSY UNDER THIS GUARANTY, AND WAIVES ANY OBJECTIONS TO SUCH
JURISDICTION AND VENUE AND CONSENTS TO FULL FAITH AND CREDIT BEING GIVEN TO ANY DECISION OF SUCH
COURTS BY ANY OTHER XXXXX XX XXXXXXX XXXXX XX XXX XXXXXX XXXXXX OF AMERICA. GUARANTOR SHALL NOT
ATTEMPT TO LITIGATE ANY MATTERS IN CONTROVERSY UNDER THIS GUARANTY BEFORE ANY COURT OR TRIBUNAL
OTHER THAN BEFORE A STATE OR FEDERAL COURT HAVING JURISDICTION OVER XXXXX COUNTY, OHIO. GUARANTOR
WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON GUARANTOR AND CONSENTS THAT ALL SUCH SERVICE OF
PROCESS UPON THE
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GUARANTOR BE MADE BY REGISTERED OR CERTIFIED MAIL DIRECTED TO GUARANTOR AT THE ADDRESS SET
FORTH BELOW AND SHALL BE DEEMED TO BE COMPLETED FIVE DAYS AFTER POSTED.
21. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY LAW, GUARANTOR HEREBY
WAIVES KNOWINGLY AND VOLUNTARILY THE RIGHT TO A JURY TRIAL IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Guarantor executes and delivers to Lender this Unconditional and
Continuing Guaranty effective as of the Effective Date.
| Address: | WINDROSE MEDICAL PROPERTIES TRUST | |||||||||
0000 Xxxxxxxx Xxxxx, Xxxxx 000 |
||||||||||
Xxxxxxxxxxxx, Xxxxxxx, 00000 |
||||||||||
| By: | /s/ Xxxx X. Klipsch | |||||||||
| Title: | Chairman and Chief Executive Officer | |||||||||
| Tax I.D. No. | 00-0000000 | |||||||||
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