EXHIBIT 4.15
EXCEPTIONS TO NON-RECOURSE GUARANTY
This EXCEPTIONS TO NON-RECOURSE GUARANTY (this "Guaranty") is entered
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into as of December 12, 2001, by VENTAS, INC., a Delaware corporation (the
"Guarantor"), for the benefit of XXXXXXX XXXXX MORTGAGE LENDING, INC., a
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Delaware corporation (together with its successors and assigns, the "Lender").
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RECITALS
A. Ventas Finance I, LLC, a Delaware limited liability company
("Borrower") has requested and Lender has agreed to make a loan in the principal
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amount of $225,000,000 (the "Loan"), pursuant to a Loan and Security Agreement,
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dated of even date herewith (as amended, modified or restated, the "Loan
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Agreement"), between the Borrower and Lender, which Loan will be evidenced by a
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Promissory Note, dated of even date herewith (as amended, modified, renewed or
restated, and any replacement notes therefor, collectively, the "Note"), from
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the Borrower to Lender and secured by, among other things, certain
Mortgages/Deeds of Trust/Deeds to Secure Debt, Assignments of Leases and Rents,
Security Agreements and Fixture Filings, dated of even date herewith (as
amended, modified, restated, spread or consolidated, collectively, the
"Instruments"), covering the respective properties more particularly described
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in the Instruments (the "Properties"). As used herein, the term "Loan Documents"
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shall mean the Loan Agreement, the Note, the Instruments, and any other
documents or instruments given by the Borrower or others and accepted by Lender
for the purposes of evidencing, securing, or guaranteeing the Loan, each as
amended or modified from time to time. Capitalized terms used but not otherwise
defined herein shall have the respective meanings given thereto in the Loan
Agreement.
B. Guarantor will derive substantial benefits from Lender's making the
Loan to Borrower.
C. As a condition to making the Loan to the Borrower, Lender requires
that Guarantor execute this Guaranty.
NOW, THEREFORE, in order to induce Lender to make the Loan to the
Borrower, and in consideration thereof, Guarantor agrees as follows:
1. As used herein, the term "Indebtedness" shall mean all obligations
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evidenced by the Note or secured by the Instruments.
2. Guarantor hereby absolutely, unconditionally and irrevocably
guarantees to Lender the full and prompt payment when due, whether at maturity
or earlier, by reason of acceleration or otherwise, and at all times thereafter,
and the full and prompt performance when due, of all of the following
(collectively, the "Guaranteed Obligations"):
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(a) All amounts for which the Guarantor is personally liable under
Sections 12.2(i)-(iv), inclusive, (vi), (ix) and (x) of the Loan
Agreement; and
(b) All costs and expenses, including reasonable fees and out of pocket
expenses of attorneys and expert witnesses, incurred by Lender in
enforcing its rights under this Guaranty.
For purposes of determining Guarantor's liability under this Guaranty, all
payments made by the Borrower with respect to the Indebtedness and all amounts
received by Lender from the enforcement of its rights under the Instruments
shall be applied first to the portion of the Indebtedness for which neither the
Borrower nor Guarantor has personal liability.
Guarantor hereby promises to pay and perform, as and when due (whether by
acceleration, at maturity, or otherwise) and at all times thereafter, each and
all of the items and obligations which are stated to be guaranteed hereunder but
which are obligations for which Guarantor is primarily liable or are not
obligations of others. Guarantor hereby agrees that any such sums shall accrue
interest at the Default Rate until paid if not paid as and when due and that
such sums, together with any accrued interest thereon, shall become a part of
Guarantor's obligations hereunder.
3. The obligations of Guarantor under this Guaranty shall survive any
foreclosure proceeding, any foreclosure sale, any delivery of any deed in lieu
of foreclosure, and any release of record of any Instrument.
4. Guarantor's obligations under this Guaranty constitute an
unconditional guaranty of payment and not merely a guaranty of collection.
5. The obligations of Guarantor under this Guaranty shall be performed
without demand by Lender and shall be unconditional irrespective of the
genuineness, validity, regularity or enforceability of any of the Loan
Documents, and without regard to any other circumstance which might otherwise
constitute a legal or equitable discharge of a surety or a guarantor. Guarantor
shall be liable even if the Borrower had no liability at the time of execution
of the Loan Documents, or thereafter ceases to be liable. Guarantor hereby
waives the benefit of all principles or provisions of law, statutory or
otherwise, which are or might be in conflict with the terms of this Guaranty and
agrees that Guarantor's obligations shall not be affected by any circumstances,
whether or not referred to in this Guaranty, which might otherwise constitute a
legal or equitable discharge of a surety or a guarantor. Guarantor hereby waives
the benefits of any right of discharge under any and all statutes or other laws
relating to guarantors or sureties and any other rights of sureties and
guarantors thereunder. Without limiting the generality of the foregoing,
Guarantor hereby waives, to the fullest extent permitted by law, diligence in
collecting the Indebtedness, presentment, demand for payment, protest, all
notices with respect to the Loan Agreement, the Note, this Guaranty, or any
other Loan Document which may be required by statute, rule of law or otherwise
to preserve Lender's rights against Guarantor under this Guaranty, including,
but not limited to, notice of acceptance, notice of any amendment of the Loan
Documents, notice of the occurrence of any default, notice of intent to
accelerate, notice of acceleration, notice of dishonor, notice of foreclosure,
notice of protest, and notice of the incurring by Borrower of any obligation or
indebtedness. Guarantor also waives, to the fullest extent permitted by law,
following an Event of Default, all rights to require Lender to (a) proceed
against any the Borrower or any other guarantor of the Borrower's payment or
performance with respect to the Indebtedness (an "Other Guarantor"), (b) if the
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Borrower or any Other Guarantor is a partnership, proceed against any general
partner of the Borrower or the Other Guarantor,
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(c) proceed against or exhaust any collateral held by Lender to secure the
repayment of the Indebtedness, or (d) pursue any other remedy it may now or
hereafter have against the Borrower, or if the Borrower is a partnership, any
general partner of the Borrower.
6. Guarantor understands that the exercise by Lender of certain rights and
remedies contained in the Instruments (such as a nonjudicial foreclosure sale)
may affect or eliminate Guarantor's right of subrogation against the Borrower
and that Guarantor may therefore incur a partially or totally nonreimbursable
liability under this Guaranty. Nevertheless, Guarantor hereby authorizes and
empowers Lender to exercise, in its sole and absolute discretion, any right or
remedy, or any combination thereof, which may then be available, since it is the
intent and purpose of Guarantor that its obligations under this Guaranty shall
be absolute, independent and unconditional under any and all circumstances.
Guarantor expressly waives any defense (which defense, if Guarantor had not
given this waiver, Guarantor might otherwise have) to a judgment against
Guarantor by reason of a judicial or nonjudicial foreclosure. Without limiting
the generality of the foregoing, Guarantor hereby expressly waives any and all
benefits under any applicable law which, if Guarantor had not given this waiver,
(a) would otherwise limit Guarantor's liability after a foreclosure sale to the
difference between the obligations of Guarantor under this Guaranty and the fair
market value of the property or interests sold at such nonjudicial foreclosure
sale, (b) would otherwise limit Lender's right to recover a deficiency judgment
after a foreclosure sale, and (c) would otherwise require Lender to exhaust all
of its security before a personal judgment could be obtained for a deficiency.
Notwithstanding any foreclosure of the lien of any Instrument, whether by the
exercise of the power of sale contained in any Instrument, by an action for
judicial foreclosure or by Lender's acceptance of a deed in lieu of foreclosure,
Guarantor shall remain bound under this Guaranty. Guarantor waives all rights
and defenses that Guarantor may have because Borrower's obligations are secured
by real property. This means, among other things:
(i) Lender may collect from Guarantor without first foreclosing on any
real or personal property collateral pledged by the Borrower or others; and
(ii) If Lender forecloses on any real property collateral pledged by
the Borrower or others: (x) the amount of the debt may be reduced only by the
price for which that collateral is sold at the foreclosure sale, even if the
collateral is worth more than the sale price; and (y) Lender may collect from
Guarantor even if Lender, by foreclosing on the real property collateral, has
destroyed any right Guarantor may have to collect from the Borrower.
This is an unconditional and irrevocable waiver of any rights and defenses that
Guarantor may have because the Borrower's obligations are secured by real
property.
7. Guarantor also waives any right or defense based upon an election of
remedies by Lender, even though such election (e.g., nonjudicial foreclosure
with respect to any collateral held by Lender to secure repayment of the
Indebtedness) destroys or otherwise impairs the subrogation rights of Guarantor
or the right of Guarantor (after payment of the obligations guaranteed by
Guarantor under this Guaranty) to proceed against the Borrower for
reimbursement, or both.
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8. Guarantor shall have no right to assert or exercise, or attempt to
assert or exercise, and hereby waives any right to assert or attempt to assert
any claim for, subrogation, reimbursement, indemnification, and contribution
against Borrower and against any general partner, member or other constituent of
Borrower, and against any other person or any collateral or security for the
Indebtedness, until the Indebtedness has been indefeasibly paid and satisfied in
full, and there has expired the maximum possible period thereafter during which
any payment made by the Borrower or others to Lender with respect to the
Indebtedness could be deemed a preference under the United States Bankruptcy
Code.
9. At any time or from time to time, without notice to Guarantor and
without affecting the liability of Guarantor for the Guaranteed Obligations, (a)
the time for payment of the principal of or interest on the Indebtedness may be
extended or the Indebtedness may be renewed in whole or in part; (b) the time
for the Borrower's performance of or compliance with any covenant or agreement
contained in the Note, the Loan Agreement, the Instruments or any other Loan
Document, whether presently existing or hereinafter entered into, may be
extended or such performance or compliance may be waived; (c) the maturity of
the Indebtedness may be accelerated as provided in the Note, the Loan Agreement,
the Instruments, or any other Loan Document; (d) the Note, the Loan Agreement,
the Instruments, or any other Loan Document may be modified or amended by Lender
and the Borrower in any respect, including, but not limited to, an increase in
the principal amount; and (e) any security for the Indebtedness may be modified,
exchanged, surrendered or otherwise dealt with or additional security may be
pledged or mortgaged for the Indebtedness.
10. Any indebtedness of the Borrower held by Guarantor now or in the
future is and shall be subordinated to the Indebtedness and any such
indebtedness of the Borrower shall be collected, enforced and received by
Guarantor, as trustee for Lender, but without reducing or affecting in any
manner the liability of Guarantor under the other provisions of this Guaranty.
11. If any payment by the Borrower is held to constitute a preference
under any applicable bankruptcy, insolvency, or similar laws, or if for any
other reason Lender is required to refund any sums to the Borrower, such refund
shall not constitute a release of any liability of Guarantor under this
Guaranty. It is the intention of Lender and Guarantor that Guarantor's
obligations under this Guaranty shall not be discharged except by Guarantor's
performance of such obligations and then only to the extent of such performance.
12. Lender may assign its rights under this Guaranty in whole or in part
and upon any such assignment, all the terms and provisions of this Guaranty
shall inure to the benefit of such assignee to the extent so assigned. The terms
used to designate any of the parties herein shall be deemed to include the
heirs, legal representatives, successors and assigns of such parties; and the
term "Lender" shall include, in addition to Lender, any lawful owner, holder or
pledgee of the Note.
13. This Guaranty and the other Loan Documents represent the final
agreement between the parties and may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreements. There are no unwritten oral
agreements between the parties. All prior or contemporaneous agreements,
understandings, representations, and statements, oral or written, are merged
into this Guaranty and the other Loan Documents. Guarantor acknowledges
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that it has received copies of the Note and all other Loan Documents.
Neither this Guaranty nor any of its provisions may be waived, modified,
amended, discharged, or terminated except by an agreement in writing signed by
the party against which the enforcement of the waiver, modification, amendment,
discharge, or termination is sought, and then only to the extent set forth in
that agreement.
14. THIS GUARANTY SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES.
15. This Guaranty has been duly authorized, executed and delivered by
Guarantor and constitutes the valid and binding obligation of Guarantor,
enforceable against Guarantor in accordance with its terms. No approval,
consent, order or authorization of any governmental authority and no
designation, registration, declaration or filing with any governmental authority
is required in connection with the execution and delivery of this Guaranty by
Guarantor. Guarantor has no defense or offset to the enforcement of this
Guaranty. The execution and delivery of this Guaranty will not violate or
contravene in any way the articles of incorporation or bylaws or partnership
agreement, articles of organization or operating agreement, as the case may be,
of Guarantor or any indenture, agreement or instrument to which Guarantor is a
party or by which it or its property may be bound, or be in conflict with,
result in a breach of or constitute a default under any such indenture,
agreement or other instrument, result in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever upon any of the property or
assets of Guarantor, except as contemplated by the provisions of the Loan
Documents, and no action or approval with respect thereto by any third person is
required.
16. GUARANTOR AND LENDER EACH (A) AGREE NOT TO ELECT A TRIAL BY JURY WITH
RESPECT TO ANY ISSUE ARISING OUT OF THIS GUARANTY OR THE RELATIONSHIP BETWEEN
THE PARTIES AS GUARANTOR AND LENDER THAT IS TRIABLE OF RIGHT BY A JURY AND (B)
WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE TO THE EXTENT THAT
ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY
JURY IS SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND VOLUNTARILY WITH THE
BENEFIT OF COMPETENT LEGAL COUNSEL.
17. This Guaranty shall not be secured by the Properties, the Loan
Documents, or any other collateral of any nature which is security for the
Obligations. Without limitation, this Section 17 has priority over any provision
in this Guaranty or any of the other Loan Documents which states or implies that
this Guaranty is so secured.
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IN WITNESS WHEREOF, Guarantor has executed and delivered this Guaranty
as of the date first written above.
GUARANTOR:
VENTAS, INC.
a Delaware corporation
By: /s/ T. Xxxxxxx Xxxxx
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Name: T. Xxxxxxx Xxxxx
Title: Executive Vice President
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