EXHIBIT J
FORM OF SUBSIDIARY GUARANTY AGREEMENT
This GUARANTY AGREEMENT (this "Agreement") is made as of
this 8th day of September, 1994, by [___________________________],
a [________________] corporation (the "Guarantor"), ______________,
in favor of NATIONAL CITY BANK, a national banking association, as
Agent (together with its successors and assigns in such capacity,
the "Agent"), National City Center, 1900 East Ninth Street, Metro
Division, Cleveland, Ohio 44114, for the ratable benefit of itself
and the Banks (as defined below) from time to time parties to the
Credit Agreement (as such term is hereinafter defined).
RECITALS
To induce the Agent and the Banks to extend credit from
time to time to Health Care REIT, Inc. (the "Borrower"), including
particularly under an Amended and Restated Credit Agreement among
the Borrower, the Agent and the Banks, dated as of September 8,
1994 (said Agreement, as it may hereafter be amended or otherwise
modified from time to time, being the "Credit Agreement"), the
Guarantor hereby agrees as follows:
Section 1. Definitions. The terms defined in the
Credit Agreement and not otherwise defined herein are used herein
as therein defined. The following additional terms shall have the
meanings specified below:
"Adjusted Net Worth" shall mean, as of any date of
determination thereof, the excess of (i) the amount of the "present
fair saleable value" of the assets of the Guarantor as of the date
of such determination, over (ii) the amount of all liabilities of
the Guarantor, contingent or otherwise, as of the date of such
determination, as such terms are determined in accordance with
applicable federal and state laws governing determinations of the
insolvency of debtors. In determining the Adjusted Net Worth of
the Guarantor for purposes of calculating the Maximum Guaranteed
Amount for the Guarantor, the liabilities of such Guarantor to be
used in the determination pursuant to clause (ii) of the preceding
sentence shall in any event include any amounts guaranteed by the
Guarantor pursuant to clause (i) of the definition of Maximum
Guaranteed Amount.
"Maximum Guaranteed Amount" shall mean, as of any date of
determination thereof, the sum of (i) the aggregate amount of the
Loans, to the extent the proceeds thereof are used to make a
Valuable Transfer to the Guarantor plus (ii) the greater of (A)
ninety-five percent (95%) of the Adjusted Net Worth of the
Guarantor at the date of the execution of this Guaranty and (B)
ninety-five percent (95%) of the Adjusted Net Worth of the
Guarantor at the earlier of (I) the date of the commencement of a
case under Title 11 of the United States Code in which the
Guarantor is a debtor and (II) the date enforcement hereunder is
obtained.
"Guaranteed Obligations" has the meaning given that term
in Section 2 hereof.
"Valuable Transfer" shall mean (i) all loans, advances or
capital contributions made to the Guarantor with proceeds of the
Loans, (ii) all debt securities or other obligations of the
Guarantor acquired from the Guarantor or retired by such Guarantor
with proceeds of the Loans, (iii) the fair market value of all
property acquired with proceeds of the Loans and transferred,
absolutely and not as collateral, to the Guarantor, (iv) all equity
securities of the Guarantor acquired from the Guarantor with
proceeds of the Loans and (v) the value of any quantifiable
economic benefits not included in clauses (i) through (iv) above,
but includable in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors, accruing to
the Guarantor as a result of the Loans.
SECTION 2. Guaranty. The Guarantor hereby
unconditionally guarantees the punctual payment when due, whether
at stated maturity, by acceleration or otherwise, of all
obligations the Borrower may now or hereafter owe to the Agent or
the Banks or any thereof of every type and description, including,
but not limited to, the Borrower's Obligations (as defined in the
Credit Agreement) (all such obligations of the Borrower being
referred to herein as of the "Guaranteed Obligations") and agrees
to pay any and all expenses (including counsel fees and expenses)
incurred by the Agent or the Banks in enforcing any rights under
this Guaranty; provided, however, that, anything herein or in any
other document, instrument or agreement executed and delivered in
connection herewith to the contrary notwithstanding, the maximum
liability of the Guarantor hereunder shall in no event exceed the
Guarantor's Maximum Guaranteed Amount.
SECTION 3. Guaranty Absolute. The Guarantor guarantees
that the Guaranteed Obligations will be paid strictly in accordance
with the terms of the Credit Agreement and the Related Writings,
regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the
rights of the Agent or the Banks with respect thereto. The
liability of the Guarantor under this Guaranty shall be absolute
and unconditional irrespective of:
(i) any lack of validity or enforceability of the Credit
Agreement, the Notes, the Collateral Documents, the Related
Writings, or any other agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Guaranteed Obligations,
or any other amendment or waiver of or any consent to departure
from the Credit Agreement, the Notes, the Collateral Documents, the
Related Writings, or any other agreement or instrument relating
thereto;
(iii) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Guaranteed
Obligations;
(iv) failure by the Agent or the Banks to take any steps to
perfect and maintain its or their security interest in, or preserve
its or their rights to, any security or collateral for the
Guaranteed Obligations;
(v) the Agent's or any Bank's election in any proceeding
instituted under Chapter 11 of Title 11 of the United States Code
(11 U.S.C. Section 101 et seq.) (the "Bankruptcy Code"), or the
application of Section 1111(b)(2) of the Bankruptcy Code;
(vi) any borrowing or grant of a security interest under
Section 364 of the Bankruptcy Code; or
(vii) any other circumstance that might otherwise constitute
a defense available to, or a discharge of, the Borrower or any
guarantor.
This Guaranty shall continue to be effective or be reinstated, as
the case may be, if at any time any payment of any of the
Guaranteed Obligations is rescinded or must otherwise be returned
by the Agent or any Bank upon the insolvency, bankruptcy or
reorganization of the Borrower or otherwise, all as though such
payment had not been made.
SECTION 4. Waiver. The Guarantor hereby waives
promptness, diligence, notice of acceptance and any other notice
with respect to any of the Guaranteed Obligations and this Guaranty
and any requirement that the Agent or any Bank protect, secure,
perfect or insure any security interest or lien or any property
subject thereto or exhaust any right or take any action against the
Borrower or any other person or entity or any collateral.
SECTION 5. Subrogation. The Guarantor shall have no
right of subrogation, reimbursement or contribution and hereby
waives any right to enforce any remedy which the Agent or any of
the Banks now has or may hereafter have against the Borrower, any
endorser or any other guarantor, of all or any part of the
Guaranteed Obligations, and the Guarantor hereby waives any benefit
of, and any right to participate in, any security or collateral
given to the Agent or any Bank to secure payment of the Guaranteed
Obligations or any other liability of the Borrower to the Agent or
the Banks. The Guarantor also waives all setoffs and counterclaims
and all presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor,
and notices of acceptance of this Guaranty. The Guarantor further
waives all notices of the existence, creation or incurring of new
or additional indebtedness, arising either from additional loans
extended to the Borrower or otherwise, and also waives all notices
that the principal amount, or any portion thereof, and/or any
interest on any instrument or document evidencing all or any part
of the Guaranteed Obligations is due, notices of any and all
proceedings to collect from the maker, any endorser or any other
guarantor of all or any part of the Guaranteed Obligations, or from
anyone else, and, to the extent permitted by law, notices of
exchange, sale, surrender or other handling of any security or
other collateral given to the Agent or the Banks to secure payment
of the Guaranteed Obligations.
SECTION 6. Representations and Warranties. The
Guarantor hereby represents and warrants that (i) the Guarantor is
a corporation duly organized and existing in good standing and has
full power and authority to make and deliver this Guaranty; (ii)
the execution, delivery and performance of this Guaranty by the
Guarantor have been duly authorized by all necessary action of its
directors and shareholders and do not and will not violate the
provisions of, or constitute a default under, any presently
applicable law or its articles of incorporation or code of
regulations or any agreement presently binding on it; (iii) this
Guaranty has been duly executed and delivered by the authorized
officers of the Guarantor and constitutes its lawful, binding and
legally enforceable obligation (subject to the United States
Bankruptcy Code and other similar laws generally affecting the
enforcement of creditors' rights); and (iv) the authorization,
execution, delivery and performance of this Guaranty do not require
notification to, registration with, or consent or approval by, any
federal, state or local regulatory body or administrative agency.
SECTION 7. Authorization. The Agent and each Bank are
hereby authorized, without notice or demand and without affecting
the liability of the Guarantor hereunder, from time to time, to (i)
renew, extend, accelerate or otherwise change the time for payment
of, or other terms relating to, the Guaranteed Obligations, or
otherwise modify, amend or change the terms of the Notes, any other
promissory note or other agreement, document or instrument now or
hereafter executed by the Borrower and delivered to the Agent or
any of the Banks; (ii) accept partial payments on the Guaranteed
Obligations; (iii) take and hold security or collateral for the
payment of this Guaranty, any other guarantees of the Guaranteed
Obligations or other liabilities of the Borrower and the Guaranteed
Obligations guaranteed hereby or thereby, and exchange, enforce,
waive and release any such security or collateral; (iv) apply such
security or collateral and direct the order or manner of sale
thereof as in its discretion it may determine; and (v) settle,
release, compromise, collect or otherwise liquidate the Guaranteed
Obligations and any security or collateral therefor in any manner,
without affecting or impairing the obligations of the Guarantor
hereunder.
At any time upon the occurrence and during the
continuation of an Event of Default, the Agent may, in its sole
discretion, without notice to the Guarantor and regardless of the
acceptance of any security or collateral for the payment hereof,
appropriate and apply toward the payment of the Guaranteed
Obligations (i) any indebtedness due or to become due from the
Agent or any of the Banks to the Guarantor, and (ii) any moneys,
credits or other property belonging to the Guarantor, at any time
held by or coming into the possession of the Agent or any of the
Banks.
SECTION 8. Amendments, Etc. No amendment or waiver of
any provisions of this Guaranty nor consent to any departure by the
Guarantor therefrom shall in any event be effective unless the same
shall be in writing and signed by the Agent and the Majority Banks,
and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given. No
release or termination of this Guaranty shall be effected unless
the same shall be in writing and executed by the Agent and each of
the Banks.
SECTION 9. No Waiver; Remedies. No failure on the part
of the Agent or any Bank to exercise, and no delay in exercising,
any right hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any right hereunder preclude any
other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 10. Right of Set-off. Upon the occurrence and
during the continuance of any Event of Default, each Bank is hereby
authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing by such Bank to
or for the credit or the account of the Guarantor against any and
all of the obligations of the Guarantor now or hereafter existing
under this Guaranty, irrespective of whether or not such Bank shall
have made any demand under this Guaranty and although such
obligations may be contingent and unmatured. Each Bank agrees
promptly to notify the Guarantor after any such set-off and
application made by such Bank, provided that the failure to give
such notice shall not affect the validity of such set-off and
application. The rights of each Bank under this Section 10 are in
addition to other rights and remedies (including, without
limitation, other rights of set-off) which such Bank may have.
SECTION 11. Continuing Guaranty; Transfer of Revolving
Note. This Guaranty is a continuing guaranty and shall (i) remain
in full force and effect until the Guaranteed Obligations are paid
in full and each Bank's Revolving Credit Commitment is terminated,
and shall continue in effect thereafter until this Guaranty is
revoked prospectively as to future transactions by written notice
to that effect actually received by the Agent (but such notice
shall not be effective as to any Guaranteed Obligations or the
Revolving Credit Commitment outstanding at that time, any
additional interest, premiums or fees to become payable with
respect thereto or any renewals, extensions, or refinancings of the
same), (ii) be binding upon the Guarantor, its successors and
assigns, and (iii) inure to the benefit of and be enforceable by
the Agent and each Bank and their successors, transferees and
assigns. Without limiting the generality of the foregoing clause
(iii), each Bank may assign or otherwise transfer the Notes to any
other person or entity in accordance with the provisions of Article
8 of the Credit Agreement, and such other person or entity shall
thereupon become vested with all the rights in respect thereof
granted to such Bank herein or otherwise.
SECTION 12. Addresses for Notices. All notices and
other communications provided for hereunder shall be in writing
(including telecopy, telegraphic, telex or cable communication) and
mailed, telecopied, telegraphed, telexed, cabled or delivered, if
to the Guarantor, at its address shown below its signature hereto;
and if to the Agent or any Bank, at its address specified in the
Credit Agreement, or as to each party at such other address as
shall be designated by such party in a written notice to the other
party. All such notices and other communications shall, when
mailed, telecopied, telegraphed, telexed or cabled, be effective
when deposited in the mails, telecopied, delivered to the telegraph
company, confirmed by telex answerback or delivered to the cable
company, respectively.
SECTION 13. Solvency. The Guarantor is solvent (as
defined in the Credit Agreement). The Guarantor does not believe
that final judgments, if any, against the Guarantor in actions for
money damages presently pending will be rendered at a time when, or
in an amount such that, the Guarantor will be unable to satisfy any
such judgments promptly in accordance with their terms (taking into
account the maximum reasonable amount of such judgments in any such
actions and the earliest reasonable time at which such judgments
might be rendered). The cash flow of the Guarantor, after taking
into account all other anticipated uses of the cash of the
Guarantor (including the payments on or in respect of debt referred
to in this Section 13), will at all times be sufficient to pay all
such judgments promptly in accordance with their terms.
SECTION 14. Waiver of Jury Trial. THE PARTIES
ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY THAT MAY ARISE UNDER
THIS GUARANTY, THE CREDIT AGREEMENT, THE COLLATERAL DOCUMENTS OR
THE RELATED WRITINGS WOULD INVOLVE DIFFICULT AND COMPLEX ISSUES AND
THEREFORE AGREE THAT ANY LAW SUIT GROWING OUT OF OR INCIDENTAL TO
ANY SUCH CONTROVERSY WILL BE TRIED IN A COURT OF COMPETENT
JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
SECTION 15. Jurisdiction; Venue; Inconvenient Forum.
(a) Jurisdiction. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY OHIO STATE COURT
OR FEDERAL COURT OF THE UNITED STATED OF AMERICA SITTING IN
CUYAHOGA COUNTY, OHIO, AND ANY APPELLATE COURT FROM ANY THEREOF, IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
GUARANTY, THE CREDIT AGREEMENT, THE COLLATERAL DOCUMENTS (AS
DEFINED IN THE CREDIT AGREEMENT) OR ANY RELATED WRITING (AS DEFINED
IN THE CREDIT AGREEMENT), OR FOR RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH OHIO
STATE OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT.
EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN
OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY RIGHT
THAT ANY PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING
RELATING TO THIS GUARANTY, THE CREDIT AGREEMENT, ANY COLLATERAL
DOCUMENT OR ANY RELATED WRITING IN THE COURTS OF ANY JURISDICTION.
(b) Venue; Inconvenient Forum. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST
EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY,
THE CREDIT AGREEMENT, ANY COLLATERAL DOCUMENT OR ANY OTHER RELATED
WRITING IN ANY OHIO STATE OR FEDERAL COURT SITTING IN CUYAHOGA
COUNTY, OHIO. EACH OF THE PARTIES HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT
FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT. THE GUARANTOR CONFIRMS THAT THE FOREGOING WAIVERS ARE
INFORMED AND FREELY MADE.
SECTION 16. Governing Law. This Guaranty shall be
governed by, and construed in accordance with, the laws of the
State of Ohio.
IN WITNESS WHEREOF, the Guarantor has caused this
Guaranty to be executed as of the date first above written.
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By:-----------------------------
Its:----------------------------
Address:
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