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GUARANTY OF COMPLETION
made by
BROOKDALE LIVING COMMUNITIES, INC.
as guarantor,
in favor of
BATTERY PARK CITY AUTHORITY
Effective as of February 28, 1999
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GUARANTY OF COMPLETION
This GUARANTY OF COMPLETION (this "Guaranty"), effective as of
February 28, 1999, made by BROOKDALE LIVING COMMUNITIES, INC., a Delaware
corporation ("Guarantor"), in favor of BATTERY PARK CITY AUTHORITY, a body
corporate and politic constituting a public benefit corporation of the State of
New York (together with its successors and assigns, "BPCA").
R E C I T A L S:
A. Pursuant to that certain Ground Lease (undated) (the
"Lease") by and between Brookdale Living Communities of New York-BPC, Inc., a
Delaware corporation and wholly owned subsidiary of Guarantor, as lessee
("Operator"), and BPCA, as lessor, BPCA has agreed to lease the land commonly
known as 000 Xxxxx Xxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the "Land") to Operator or
its permitted assignee subject to the satisfaction of the conditions contained
in that certain Agreement Regarding Lease and Escrow dated July 14, 1998 (the
"Original Escrow Agreement")by and among BPCA, Operator and Windels, Marx,
Davies & Ives, as escrowee, as amended by those certain letter agreements dated
as of September 30, 1998, December 29, 1998, and February 28, 1999 (as amended,
the "Escrow Agreement").
B. As a condition to BPCA's allowing Operator to construct the
Buildings (as defined in the Lease) on the Land prior to satisfying the
condition contained in Section 3(ii)(w) of the Original Escrow Agreement, BPCA
is requiring that Guarantor execute and deliver to BPCA this Guaranty.
NOW, THEREFORE, in consideration of the premises set forth
herein and as an inducement for and in consideration of the agreement of BPCA to
allow Operator to construct the Buildings on the Land prior to satisfying the
condition contained in Section 3(ii)(w) of the Original Escrow Agreement,
Guarantor hereby agrees and covenants to BPCA as follows:
1. Definitions.
(a) All capitalized terms used and not defined herein
shall have the respective meanings given such terms in the Lease.
(b) The term "including" means including without
limitation.
(c) "Guaranty Termination Date" means the earlier of:
(i) the date on which Substantial Completion of the Buildings has occurred and
all costs, expenses and liabilities incurred in connection therewith (including,
without limitation, for labor, materials and services) have been paid in full
(except to the extent to be paid for from retainage), or (ii) the date upon
which Guarantor has satisfied the condition contained in Section 3(ii)(w) of the
Escrow Agreement, or (iii) the date on which BPCA draws on the Pre-Lease Letter
of Credit (as such term is defined in that certain letter agreement, dated as of
February 28, 1999, between BPCA and Operator).
2. Guaranty.
(a) Subject to the terms and conditions contained
herein, Guarantor hereby irrevocably, absolutely and unconditionally guarantees
to BPCA the completion of the Buildings by Operator in accordance with that
certain letter agreement, dated as of February 28, 1999, between BPCA and
Operator. The obligations which are the subject of the guaranty referred to in
this Section 2(a) are hereinafter collectively referred to as the "Guarantied
Obligations".
(b) Subject to the terms and conditions contained
herein, Guarantor hereby irrevocably, absolutely and unconditionally guarantees
to BPCA that Operator shall, in accordance with the terms of the Lease, fully
and punctually pay and discharge (i) any and all costs, expenses and liabilities
for or incurred in connection with the Guarantied Obligations; (ii) all claims
and demands for labor, materials and services used or incurred in connection
with the Guarantied Obligations which are or may become due and payable, or, if
unpaid, are or may become liens on the Premises or any part thereof; and (iii)
any liens in favor of any and all Persons furnishing materials, labor or
services for or in connection with the Guarantied Obligations such that the
Premises shall be and remain free and clear of any and all liens other than the
Title Matters, subject, however, to Operator's rights, if any, set forth in the
Lease with regard to the contesting of liens and obtaining a Mortgage.
(c) If Operator does not perform the Guarantied
Obligations as provided in paragraphs (a) and (b) of this Section 2, then upon
receipt of a written demand from BPCA:
(i) Guarantor shall, upon receipt of a written
demand by BPCA, promptly perform and complete the Guarantied Obligations or
cause the Guarantied Obligations to be performed and completed, in accordance
with the requirements of that certain letter agreement, dated as of February 28,
1999, between BPCA and Operator; and
(ii) if Guarantor fails to perform the Guarantied
Obligations in accordance with this Guaranty, then, to the extent that BPCA
shall (A) cause any Guarantied Obligations to be performed, (B) pay any costs,
expenses or liabilities in connection with the Guarantied Obligations, or (c)
cause any lien, claim or demand to be released or paid or bonded, Guarantor
shall, upon demand by BPCA, reimburse BPCA for all sums paid and all costs,
expenses or liabilities incurred by BPCA in connection therewith. All such sums
shall be payable by Guarantor to BPCA on demand.
(d) Notwithstanding anything to the contrary contained
herein or in any other document, and subject to the provisions of Section 4(i)
below, all of Guarantor's obligations under this Guaranty (including the
Guarantied Obligations hereunder) shall terminate on the Guaranty Termination
Date, provided that Guarantor's obligations under clauses (ii) and (iii) of
Section 2(b) above relating to labor, materials and services provided, furnished
or performed at or to the Premises shall continue with respect to any claims,
demands and liens referred to therein, whether asserted before or after the
Guaranty Termination Date.
(e) Notwithstanding anything to the contrary contained
herein, BPCA shall be free to elect any remedy contemplated by the provisions of
the Escrow Agreement without regard to any other rights or remedies set forth
herein.
3. Representations and Warranties. Guarantor hereby represents
and warrants to BPCA as follows (which representations and warranties shall be
given as of the date hereof and shall survive the execution and delivery of this
Guaranty):
(a) Organization, Authority and Execution. Guarantor is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware, and has all necessary power and authority to own
its properties and to conduct its business as presently conducted or proposed to
be conducted and to enter into and perform this Guaranty and all other
agreements and instruments to be executed by it in connection herewith. This
Guaranty has been duly executed and delivered by Guarantor.
(b) Enforceability. This Guaranty constitutes a legal,
valid and binding obligation of Guarantor, enforceable against Guarantor in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally.
(c) No Violation. The execution, delivery and
performance by Guarantor of the Guarantied Obligations has been duly authorized
by all necessary action, and do not and will not violate any law, regulation,
order, writ, injunction or decree of any court or governmental body, agency or
other instrumentality applicable to Guarantor in effect on the date hereof, or
result in a breach of any of the terms, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of any
mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the
assets of Guarantor pursuant to the terms of Guarantor's certificate of
incorporation or by-laws, or any mortgage, indenture, agreement or instrument to
which Guarantor is a party or by which it or any of its properties is bound.
(d) No Litigation. There are no actions, suits or
proceedings at law or at equity, pending or, to Guarantor's best knowledge,
threatened against or affecting Guarantor or which involve the validity or
enforceability of this Guaranty or with respect to which an adverse decision is
reasonably likely which would materially adversely affect the financial
condition of Guarantor or the ability of Guarantor to perform any of the
Guarantied Obligations. Guarantor is not in default beyond any applicable grace
or cure period with respect to any order, writ, injunction, decree or demand of
any Governmental Authority which would materially adversely affect the financial
condition of Guarantor or the ability of Guarantor to perform any of its
obligations under this Guaranty.
(e) Consents. All consents, approvals, orders or
authorizations of, or registrations, declarations or filings with, all
Governmental Authorities that are required in connection with the valid
execution, delivery and performance by Guarantor of this Guaranty have been
obtained or will be obtained when required.
4. Unconditional Character of Obligations of Guarantor.
(a) Subject to Section 2(d) above, the obligations of
Guarantor hereunder shall be irrevocable, absolute and unconditional. This
Guaranty is a guaranty of performance and not a guaranty of collection.
(b) The Guarantied Obligations, and the rights of BPCA
to enforce the same by proceedings, whether by action at law, suit in equity or
otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation,
reorganization, readjustment, composition, dissolution, receivership,
conservatorship, winding up or other similar proceeding involving or affecting
Operator or Guarantor;
(ii) the sale, transfer or conveyance of the
Premises or any interest therein to any Person, whether now or hereafter having
or acquiring an interest in the Premises or any interest therein and whether or
not pursuant to any foreclosure, trustee sale or similar proceeding against
Operator, or the Premises or any interest therein;
(iii) the release of Operator from the performance
or observance of any of the agreements, covenants, terms or conditions contained
in the Lease or the Escrow Agreement by operation of law or otherwise; or
(iv) any remedy elected by BPCA under the terms of
the Escrow Agreement.
(c) Except as otherwise specifically provided in this
Guaranty, Guarantor hereby expressly and irrevocably waives all defenses in an
action brought by BPCA arising hereunder to enforce this Guaranty based on
claims of waiver, release, surrender, alteration, compromise or equitable
discharge.
(d) BPCA may deal with Operator, and affiliates of
Operator in the same manner and as freely as if this Guaranty did not exist and
shall be entitled, among other things, to grant Operator or any other Person
such extension or extensions of time to perform any act or acts as may be deemed
advisable by BPCA, at any time and from time to time, without terminating,
affecting or impairing the validity of this Guaranty or the Guarantied
Obligations.
(e) No compromise, alteration, amendment, modification,
extension, indulgence, renewal, release or other change of, or waiver,
suspension, consent, compromise, delay, omission, failure to act, forbearance or
other action with respect to, any liability or obligation under or with respect
to, or of any of the terms, covenants or conditions of, the Lease shall in any
way alter, impair or affect any of the Guarantied Obligations or BPCA's rights
hereunder, and Guarantor agrees that if any provisions in Article 11 of the
Lease relating to the construction of the Buildings are modified with BPCA's
consent, the Guarantied Obligations shall automatically be deemed modified
to include such modifications without the necessity of notice to Guarantor
except as may otherwise be required under the Lease.
(f) BPCA may proceed to protect and enforce any or all
of its rights under this Guaranty by suit in equity or action at law, whether
for the specific performance of any covenants or agreements contained in this
Guaranty or otherwise, or to take any action authorized or permitted under
applicable law, and shall be entitled to require and enforce the performance of
all acts and things required to be performed hereunder by Guarantor. Each and
every remedy of BPCA shall, to the extent permitted by law, be cumulative and
shall be in addition to any other remedy given hereunder or under the Escrow
Agreement or now or hereafter existing at law or in equity. No single exercise
of BPCA's power to bring any action or institute any proceeding shall be deemed
to exhaust such power, but such power shall continue undiminished and may be
exercised from time to time as often as BPCA may elect until the earlier of the
Guaranty Termination Date or the date that all the Guarantied Obligations have
been satisfied. BPCA shall be under no obligation to take any action and shall
not be liable for any action taken or any failure to take action or any delay in
taking action against Guarantor, Operator, or any other Person or otherwise with
respect to the Guarantied Obligations.
(g) No waiver shall be deemed to have been made by BPCA
of any rights hereunder unless the same shall be in writing and signed by BPCA,
and any such waiver shall be a waiver only with respect to the specific matter
involved and shall in no way impair the rights of BPCA or the obligations of
Guarantor to BPCA in any other respect or at any other time.
(h) At the option of BPCA, Guarantor may be joined in
any action or proceeding commenced by BPCA against Operator in connection with
or based upon the Guaranteed Obligations and recovery may be had against
Guarantor in such action or proceeding or in any independent action or
proceeding against Guarantor, but only to the extent of Guarantor's liability
hereunder, without any requirement that BPCA first assert, prosecute or exhaust
any remedy or claim against Operator or any other Person, or any security for
the obligations of Operator, or any other Person.
(i) Guarantor agrees that this Guaranty shall continue
to be effective or shall be reinstated, as the case may be, if at any time any
payment is made by Operator or Guarantor to BPCA with respect to the Guaranteed
Obligations and such payment is rescinded or must otherwise be returned by BPCA
(as determined by BPCA in its reasonable discretion) upon insolvency,
bankruptcy, liquidation, reorganization, readjustment, composition, dissolution,
receivership, conservatorship, winding up or other similar proceeding involving
or affecting Guarantor, all as though such payment had not been made.
5. Entire Agreement/Amendments. This instrument represents the
entire agreement between the parties with respect to the subject matter hereof.
The terms of this Guaranty shall not be waived, altered, modified, amended,
supplemented or terminated in any manner whatsoever except by written instrument
signed by BPCA and Guarantor.
6. Successors and Assigns. This Guaranty shall be binding
upon Guarantor, and Guarantor's successors and assigns, may not be assigned or
delegated by Guarantor and shall inure to the benefit of BPCA and its successors
and assigns.
7. Applicable Law and Consent to Jurisdiction. This Guaranty
was partially negotiated in the State of New York, and accepted by BPCA in the
State of New York, which State the parties agree has a substantial relationship
to the parties and to the underlying transaction embodied hereby, and in all
respects, this Guaranty shall be governed by, and construed in accordance with,
the substantive laws of the State of New York. Guarantor irrevocably (a) agrees
that any suit, action or other legal proceeding arising out of or relating to
this Guaranty may be brought in a court of record in the City and County of New
York or in the Courts of the United States of America located in the Southern
District of New York, (b) consents to the jurisdiction of each such court in any
such suit, action or proceeding and (c) waives any objection which it may have
to the laying of venue of any such suit, action or proceeding in any of such
courts and any claim that any such suit, action or proceeding has been brought
in an inconvenient forum. Guarantor irrevocably consents to the service of any
and all process in any such suit, action or proceeding by service of copies of
such process to Guarantor at its address provided in Section 10 hereof. Nothing
in this Section 7, however, shall affect the right of BPCA to serve legal
process in any other manner permitted by law or affect the right of BPCA to
bring any suit, action or proceeding against Guarantor in the courts of any
other jurisdictions.
8. Section Headings. The headings of the sections and
paragraphs of this Guaranty have been inserted for convenience of reference only
and shall in no way define, modify, limit or amplify any of the terms or
provisions hereof.
9. Severability. Any provision of this Guaranty which may be
determined by any competent authority to be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, Guarantor hereby
waives any provision of law which renders any provision hereof prohibited or
unenforceable in any respect.
10. Notices. All notices, demands, requests, consents,
approvals or other communications (collectively called "Notices") required or
permitted to be given hereunder to BPCA or Guarantor or which are given to BPCA
or Guarantor with respect to this Guaranty shall be in writing and shall be (a)
sent by United States registered or certified mail, return receipt requested,
postage prepaid, addressed as set forth below, (b) sent by a national overnight
courier or delivery service or (c) personally delivered with receipt
acknowledged to such address, or in either case, to such other address(es) as
the party in question shall have specified most recently by like Notice.
If to BPCA, to:
Battery Park City Authority
Xxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: President
with a copy to:
Battery Park City Authority
Xxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxx Xxxxxx, Esq.
If to Guarantor, to:
Brookdale Living Communities, Inc.
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Xx.
with a copy to:
Brookdale Living Communities, Inc.
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Notices which are given in the manner aforesaid shall be deemed to have been
given or served for all purposes hereunder (i) on the date on which such notice
shall have been personally delivered as aforesaid, (ii) on the date of delivery
by overnight carrier or mail as evidenced by the return receipt therefor, or
(iii) on the date of failure to deliver by reason of refusal to accept delivery
or changed address of which no Notice was given.
11. Expenses. Guarantor hereby agrees to pay all costs, charges
and expenses, including, without limitation, reasonable attorneys' fees and
disbursements, that may be incurred by BPCA in enforcing the covenants,
agreements, obligations and liabilities of Guarantor under this Guaranty.
[Remainder of page intentionally left blank; signature page follows.]
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of
the date first above written.
BROOKDALE LIVING COMMUNITIES, INC.,
a Delaware Corporation
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
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Xxxxxx X. Xxxxxxxx, Xx.
Executive Vice President
AGREED AND ACKNOWLEDGED:
BATTERY PARK CITY AUTHORITY
By: /s/ Xxxxxxxx Xxxx
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