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Exhibit 10.2
Xxxxxxx Mac Loan No.: 002680246
EXCEPTIONS TO NON-RECOURSE GUARANTY
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(MULTISTATE)
This Exceptions to Non-Recourse Guaranty ("GUARANTY") is entered
into as of May 20, 1999, by the undersigned person(s) (the "GUARANTOR" whether
one or more), for the benefit of GMAC COMMERCIAL MORTGAGE CORPORATION, a
California corporation, and/or any subsequent holder of the Note (the "LENDER").
RECITALS
A. SUNRISE HAVERFORD ASSISTED LIVING, L.L.C., a Pennsylvania limited
liability company (the "BORROWER") has requested that Lender make a loan to
Borrower in the amount of $8,850,000.00 (the "LOAN"). The Loan will be evidenced
by a Multifamily Note from Borrower to Lender dated as of the date of this
Guaranty (the "NOTE"). The Note will be secured by a Multifamily Mortgage, Deed
of Trust, or Deed to Secure Debt dated the same date as the Note (the "SECURITY
INSTRUMENT"), encumbering the real property described in the Security Instrument
(the "PROPERTY").
B. As a condition to making the Loan to Borrower, Lender requires
that the Guarantor execute this Guaranty.
NOW, THEREFORE, in order to induce Lender to make the Loan to
Borrower, and in consideration thereof, Guarantor agrees as follows:
1. "Indebtedness" and other capitalized terms used but not defined
in this Guaranty shall have the meanings assigned to them in the Security
Instrument.
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:
(a) All amounts for which Borrower is personally liable
under Paragraphs 9(c) through 9(f) of the Note.
(b) The payment and performance of all of Borrower's
obligations under Section 18 of the Security Instrument.
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(c) The entire Indebtedness, in the event that (i) Borrower
voluntarily files for bankruptcy protection under the
United States Bankruptcy Code or voluntarily becomes
subject to any reorganization, receivership, insolvency
proceeding or other similar proceeding pursuant to any
other federal or state law affecting debtor and creditor
rights, or (ii) an order for relief is entered against
Borrower in any involuntary bankruptcy filing by any
creditor of Borrower (other than Lender) pursuant to the
United States Bankruptcy Code or other federal or state
law affecting debtor and creditor rights.
(d) 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 Borrower with respect to the Indebtedness and all amounts
received by Lender from the enforcement of its rights under the Security
Instrument shall be applied first to the portion of the Indebtedness for which
neither Borrower nor Guarantor has personal liability.
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 the Security Instrument, and,
in addition, the obligations of Guarantor relating to Borrower's obligations
under Section 18 of the Security Instrument shall survive any repayment or
discharge of the Indebtedness.
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 the Note, the
Security Instrument, or any other Loan Document, and without regard to any other
circumstance which might otherwise constitute a legal or equitable discharge of
a surety or a guarantor. 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 Note
and this Guaranty which may be required by statute, rule of law or otherwise to
preserve Lender's rights against Guarantor under this Guaranty, including, but
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not limited to, notice of acceptance, notice of any amendment of the Loan
Documents, notice of the occurrence of any default or Event of 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, all rights to require Lender to (a) proceed against Borrower
or any other guarantor of Borrower's payment or performance with respect to the
Indebtedness (an "OTHER GUARANTOR") (b) if Borrower or any Other Guarantor is a
partnership, proceed against any general partner of Borrower or the Other
Guarantor, (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 Borrower, or, if Borrower is a partnership, any
general partner of Borrower.
6. At any time or from time to time and any number of times, without
notice to Guarantor and without affecting the liability of Guarantor, (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 Borrower's performance of or compliance with any covenant or agreement
contained in the Note, the Security Instrument 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 Security Instrument, or any
other Loan Document; (d) the Note, the Security Instrument, or any other Loan
Document may be modified or amended by Lender and 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.
7. If more than one person executes this Guaranty, the obligations
of those persons under this Guaranty shall be joint and several. Lender, in its
sole and absolute discretion, may (a) bring suit against Guarantor, or any one
or more of the persons constituting Guarantor, and any Other Guarantor, jointly
and severally, or against any one or more of them; (b) compromise or settle with
any one or more of the persons constituting Guarantor for such consideration as
Lender may deem proper; (c) release one or more of the persons constituting
Guarantor, or any Other Guarantor, from liability; and (d) otherwise deal with
Guarantor and any Other Guarantor, or any one or more of them, in any manner,
and no such action shall impair the rights of Lender to collect from Guarantor
any amount guaranteed by Guarantor under this Guaranty. Nothing contained in
this paragraph shall in any way affect or impair the rights or obligations of
Guarantor with respect to any Other Guarantor.
8. Any indebtedness of Borrower held by Guarantor now or in the
future is and shall be subordinated to the Indebtedness and any such
indebtedness of 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.
9. Guarantor shall have no right of, and hereby waives any claim
for, subrogation or
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reimbursement against Borrower or any general partner of Borrower by reason of
any payment by Guarantor under this Guaranty, whether such right or claim arises
at law or in equity or under any contract or statute, until the Indebtedness has
been paid in full and there has expired the maximum possible period thereafter
during which any payment made by Borrower to Lender with respect to the
Indebtedness could be deemed a preference under the United States Bankruptcy
Code.
10. If any payment by 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 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.
11. Guarantor shall from time to time, upon request by Lender,
deliver to Lender such financial statements as Lender may reasonably require.
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 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. Guarantor agrees that any controversy arising under or in
relation to this Guaranty shall be litigated exclusively in the jurisdiction
where the Land is located (the "PROPERTY JURISDICTION"). The state and federal
courts and authorities with jurisdiction in the Property Jurisdiction shall have
exclusive jurisdiction over all controversies which shall arise under or in
relation to this Guaranty, the Note, the Security Instrument or any other Loan
Document. Guarantor irrevocably consents to service, jurisdiction, and venue of
such courts for any such litigation and waives any other venue to which it might
be entitled by virtue of domicile, habitual residence or otherwise.
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15. GUARANTOR AND LENDER EACH (A) AGREES 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.
ATTACHED EXHIBIT. The following Exhibit is attached to this
Guaranty:
|__| Exhibit A Modifications to Guaranty
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IN WITNESS WHEREOF, Guarantor has signed and delivered this Guaranty
or has caused this Guaranty to be signed and delivered by its duly authorized
representative.
GUARANTOR:
SUNRISE ASSISTED LIVING, INC., a Delaware
corporation
By:____/s/ Xxxxxx X. Newell_________(Seal)
Xxxxxx X. Xxxxxx
Executive Vice President and Assistant
Secretary
By:____/s/ Xxxxx X. Faeder_____________(Seal)
Xxxxx X. Xxxxxx
President
Address: __Sunrise Assisted Living
__0000 Xxx Xxxxxxx, Xxxxx 000
__Fairfax, VA 22031_________
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STATE OF ____Virginia__________ :
: ss:
COUNTY OF __Fairfax___________ :
ON THIS _10th day of May, 1999, before me, the undersigned officer,
personally appeared Xxxxxx X. Xxxxxx, who acknowledged himself to be the
Executive Vice President and Assistant Secretary of SUNRISE ASSISTED LIVING,
INC., a Delaware corporation, and that he as such Executive Vice President and
Assistant Secretary, being authorized to do so, executed the foregoing
instrument for the purposes therein contained by signing the name of the
foregoing corporation by himself as such Executive Vice President and Assistant
Secretary.
____/s/ Xxxxx X. Timoner__________________
Notary Public
My Commission Expires:
8/31/99
STATE OF __Virginia___________:
: ss:
COUNTY OF _Farifax____________ :
ON THIS 10th day of May, 1999, before me, the undersigned officer,
personally appeared Xxxxx X. Xxxxxx, who acknowledged himself to be the
President of SUNRISE ASSISTED LIVING, INC., a Delaware corporation, and that he
as such President, being authorized to do so, executed the foregoing instrument
for the purposes therein contained by signing the name of the foregoing
corporation by himself as such President.
___/s/ Xxxxx X. Timoner___________________
Notary Public
My Commission Expires:
8/31/99
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