EXHIBIT 10.5
INDEMNITY AND
GUARANTY AGREEMENT
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(DLJ 1996-CF1)
(Loan No. 9690381)
THIS INDEMNITY AND GUARANTY AGREEMENT (this "Agreement"), made as of the
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___ day of _______, 1998, jointly and severally by BROOKDALE LIVING COMMUNITIES
OF CALIFORNIA, INC., a Delaware corporation ("Tenant") and BROOKDALE LIVING
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COMMUNITIES, INC., a Delaware corporation ("Parent"), each of whose address is
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00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx Xxxxxxxx, 00000 Attn: Xxxxxx X.
Xxxxxxxx, Xx. (Tenant and Parent being referred to herein collectively as
"Indemnitors" and individually as "Indemnitor"), in favor of LASALLE NATIONAL
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BANK, AS TRUSTEE FOR THE REGISTERED HOLDERS OF DLJ MORTGAGE ACCEPTANCE CORP.,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1996-CF1 ("Lender"), whose
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address is 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attn:
Xxxxx Xxxxxx; DLJ 1996-CF1; Loan No. 9690381.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Atrium Venture, a California limited partnership ("Original
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Borrower"), obtained a loan (the "Loan") in the principal amount of Eighteen
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Million Four Hundred Thousand and No/100 Dollars ($18,400,000) from Column
Financial, Inc., a Delaware corporation ("Original Lender"); and
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WHEREAS, the Loan is evidenced by a Promissory Note dated as of January 15,
1996 (the "Note"), executed by Original Borrower and payable to the order of
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Original Lender in the stated principal amount of Eighteen Million Four Hundred
Thousand and No/100 Dollars ($18,400,000) and is secured by a Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing dated as of January
15, 1996 (the "Deed of Trust") from Original Borrower, as trustor, to a trustee
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for the benefit of Original Lender, as beneficiary, encumbering Original
Borrower's interest in that certain real property situated in the County of
Santa Xxxxx, State of California, as more particularly described on EXHIBIT A
attached hereto and incorporated herein by this reference, together with the
buildings, structures and other improvements now or hereafter located thereon
(said real property, buildings, structures and other improvements being
hereinafter collectively referred to as the "Property") and by other documents
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and instruments (the Note, the Deed of Trust, the Assumption Agreement (as
hereinafter defined) and such other documents and instruments evidencing or
securing the Loan, as the same may from time to time be amended, consolidated,
renewed or replaced, being collectively referred to herein as the "Loan
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Documents"); and
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WHEREAS, Lender is the current owner and holder of the Loan; and
WHEREAS, The Atrium of San Xxxx LLC, a Delaware limited liability company
("New Borrower") desires to purchase the Property from Original Borrower and to
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assume all of Original Borrower's obligations under the Loan Documents; and
WHEREAS, New Borrower desires to lease the Property to Tenant pursuant to
that certain lease (the "Lease") of even date herewith between Tenant, as Lessee
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and New Borrower, as Lessor-Owner; and
WHEREAS, a sale of the Property to and the assumption of the Loan by a
third party and New Borrower entering into the Lease with Tenant without the
consent of Lender is prohibited by the terms of the Deed of Trust thereof; and
WHEREAS, as a condition to Lender's consenting to (i) New Borrower entering
into the Lease with Tenant; and (ii) the sale of the Property to New Borrower
and the assumption of the Loan by New Borrower in accordance with the terms of a
Note and Deed of Trust Assumption Agreement (the "Assumption Agreement") of even
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date herewith among Original Borrower, New Borrower and Lender (the "Requested
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Actions"), Lender has required that Indemnitors indemnify Lender from and
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against and guarantee payment to Lender of those items for which New Borrower is
personally liable and for which Lender has recourse against New Borrower under
the terms of the Loan Documents.
NOW, THEREFORE, to induce Lender to consent to the Requested Actions and in
consideration of the foregoing premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Indemnitors hereby covenant and agree for the benefit of Lender, as follows:
1. INDEMNITY AND GUARANTY. Indemnitors hereby assume liability for, hereby
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guarantee payment to Lender of, hereby agree to pay, protect, defend and
save Lender harmless from and against, and hereby indemnify Lender from and
against any and all liabilities, obligations, losses, damages, costs and
expenses (including, without limitation, reasonable attorneys' fees),
causes of action, suits, claims, demands and judgments of any nature or
description whatsoever (collectively, "Costs") which may at any time be
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imposed upon, incurred by or awarded against Lender as a result of:
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(1) Proceeds paid under any insurance policies (or paid as a result of any
other claim or cause of action against any person or entity) by reason
of damage, loss or destruction to all or any portion of the Security
Property (as defined in the Note), to the full extent of such proceeds
not previously delivered to Lender, but which, under the terms of the
Loan Documents, should have been delivered to Lender;
(2) Proceeds or awards resulting from the condemnation or other taking in
lieu of condemnation of all or any portion of the Security Property,
or any of them, to the full extent of such proceeds or awards not
previously delivered to Lender, but which, under the terms of the Loan
Documents, should have been delivered to Lender;
(3) All tenant security deposits or other refundable deposits paid to or
held by New Borrower or Tenant or any other person or entity in
connection with leases or subleases of all or any portion of the
Security Property which are not applied in accordance with the terms
of the applicable lease, sublease or other agreement;
(4) Rent and other payments received by New Borrower or Tenant from
tenants or subtenants under leases of all or any portion of the
Security Property paid more than one month in advance (other than the
SELCO Basic Rent which is to be paid by Tenant on a quarterly basis
pursuant to the terms of the Lease);
(5) Rents, issues, profits and revenues of all or any portion of the
Security Property received from tenants or subtenants by New Borrower
or Tenant and applicable to a period after any notice of default from
Lender under the Loan Documents in the event of any default by New
Borrower thereunder which are not either applied to the ordinary and
necessary expenses (which expenses shall not include any Base or Basic
Rent or Rental (except for the Senior Loan Debt Service Rent) as such
terms are defined and used in the Lease) of owning and operating the
Security Property or paid to Lender;
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(6) Damage to all or any portion of the Security Property as a result of
the intentional misconduct or gross negligence of New Borrower or
Tenant or any of their respective principals, officers members or
general partners, or any agent or employee of such persons, or any
removal of all or any portion of the Security Property in violation of
the terms of the Loan Documents, to the full extent of the losses or
damages incurred by Lender on account of such damage or removal;
(7) Failure by New Borrower to pay any valid taxes, assessments,
mechanic's liens, materialmen's liens or other liens which could
create liens on any portion of the Security Property which would be
superior to the lien or security title of the Deed of Trust or the
other Loan Documents, to the full extent of the amount claimed by any
such lien claimant;
(8) All obligations and indemnities of New Borrower under the Loan
Documents relating to hazardous or toxic substances or compliance with
environmental laws and regulations to the full extent of any losses or
damages (including those resulting from diminution in value of any
Security Property) incurred by Lender as a result of the existence of
such hazardous or toxic substances or failure to comply with
environmental laws or regulations; and
(9) Fraud or material misrepresentation by New Borrower or Tenant or any
of their respective principals, members, officers or general partners,
any guarantor, any indemnitor or any agent, employee or other person
authorized or apparently authorized to make statements or
representations on behalf of New Borrower or Tenant, or any member,
principal, or officer of New Borrower or Tenant, or any guarantor or
any indemnitor, to the full extent of any losses, damages and expenses
of Lender on account thereof.
This is a guaranty of payment and performance and not of collection. The
liability of Indemnitors under this Agreement shall be direct and immediate and
not conditional or contingent upon the pursuit of any remedies against New
Borrower or any other person (including, without limitation, other guarantors,
if any), nor against the collateral for the Loan. Indemnitors waive any right
to require that an action be brought against New Borrower or any
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other person or to require that resort be had to any collateral for the Loan or
to any balance of any deposit account or credit on the books of Lender in favor
of Borrower or any other person. In the event, on account of the Bankruptcy
Reform Act of 1978, as amended, or any other debtor relief law (whether
statutory, common law, case law or otherwise) of any jurisdiction whatsoever,
now or hereafter in effect, which may be or become applicable, New Borrower
shall be relieved of or fail to incur any debt, obligation or liability as
provided in the Loan Documents, Indemnitors shall nevertheless be fully liable
therefor to the full extent that New Borrower was liable therefor, or that
Indemnitors are liable therefor as set forth in this Indemnity. In the event of
a default under the Loan Documents which is not cured within any applicable
grace or cure period, Lender shall have the right to enforce its rights, powers
and remedies (including, without limitation, foreclosure of all or any portion
of the collateral for the Loan) thereunder or hereunder, in any order, and all
rights, powers and remedies available to Lender in such event shall be non-
exclusive and cumulative of all other rights, powers and remedies provided
thereunder or hereunder or by law or in equity. If the indebtedness and
obligations guaranteed hereby are partially paid or discharged by reason of the
exercise of any of the remedies available to Lender, this Agreement shall
nevertheless remain in full force and effect, and Indemnitors shall remain
liable for all remaining indebtedness and obligations guaranteed hereby, even
though any rights which Indemnitors may have against New Borrower may be
destroyed or diminished by the exercise of any such remedy.
2. INDEMNIFICATION PROCEDURES.
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(1) If any action shall be brought against Lender based upon any of the
matters for which Lender is indemnified hereunder, Lender shall notify
Indemnitors in writing thereof and Indemnitors shall promptly assume
the defense thereof, including, without limitation, the employment of
counsel acceptable to Lender and the negotiation of any settlement;
provided, however, that any failure of Lender to notify Indemnitors of
such matter shall not impair or reduce the obligations of Indemnitors
hereunder. Lender shall have the right, at the expense of Indemnitors
(which expense shall be included in Costs), to employ separate counsel
in any such action and to participate in the defense thereof. In the
event Indemnitors shall fail to discharge or undertake to defend
Lender against any claim, loss or liability for which Lender is
indemnified
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hereunder, Lender may, at its sole option and election, defend or
settle such claim, loss or liability. The liability of Indemnitors to
Lender hereunder shall be conclusively established by such settlement,
provided such settlement is made in good faith, the amount of such
liability to include both the settlement consideration and the costs
and expenses, including, without limitation, reasonable attorneys'
fees and disbursements, incurred by Lender in effecting such
settlement. In such event, such settlement consideration, costs and
expenses shall be included in Costs and Indemnitors shall pay the same
as hereinafter provided. Lender's good faith in any such settlement
shall be conclusively established if the settlement is made on the
advice of independent legal counsel for Lender.
(2) Indemnitors shall not, without the prior written consent of Lender:
(i) settle or compromise any action, suit, proceeding or claim or
consent to the entry of any judgment in respect of the matters set
forth in paragraphs 1(a) through 1(i), inclusive, hereof that does not
include as an unconditional term thereof the delivery by the claimant
or plaintiff to Lender of a full and complete written release of
Lender (in form, scope and substance satisfactory to Lender in its
sole discretion) from all liability in respect of such action, suit,
proceeding or claim and a dismissal with prejudice of such action,
suit, proceeding or claim; or (ii) settle or compromise any action,
suit, proceeding or claim in respect of the matters set forth in
paragraphs 1(a) through 1(i), inclusive, hereof in any manner that may
adversely affect Lender or obligate Lender to pay any sum or perform
any obligation as determined by Lender in its sole discretion.
(3) All Costs shall be immediately reimbursable to Lender when and as
incurred and, in the event of any litigation, claim or other
proceeding, without any requirement of waiting for the ultimate
outcome of such litigation, claim or other proceeding, and Indemnitors
shall pay to Lender any and all Costs within ten (10) days after
written notice from Lender itemizing the amounts thereof incurred to
the date of such notice. In addition to any other remedy available for
the failure of Indemnitors to periodically pay such Costs, such Costs,
if not paid
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within said ten day period, shall bear interest at the Default
Interest Rate (as defined in the Note).
3. REINSTATEMENT OF OBLIGATIONS. If at any time all or any part of any
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payment made by Indemnitors or received by Lender from Indemnitors under or
with respect to this Agreement is or must be rescinded or returned for any
reason whatsoever (including, but not limited to, the insolvency,
bankruptcy or reorganization of either Indemnitor), then the obligations of
Indemnitors hereunder shall, to the extent of the payment rescinded or
returned, be deemed to have continued in existence, notwithstanding such
previous payment made by Indemnitors, or receipt of payment by Lender, and
the obligations of Indemnitors hereunder shall continue to be effective or
be reinstated, as the case may be, as to such payment, all as though such
previous payment by Indemnitors had never been made.
4. WAIVERS BY INDEMNITORS. To the extent permitted by law, Indemnitors hereby
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waive and agree not to assert or take advantage of and shall not be
released or exonerated as a result of (including any release or exoneration
that might occur under California Civil Code Section 2809, 2810, 2819,
2822, 2845, 2848, 2849 or 2850):
(1) Any right to require Lender to proceed against New Borrower or any
other indemnitor or guarantor or any other person or to proceed
against or exhaust any security held by Lender at any time or to
pursue any other remedy in Lender's power or under any other agreement
before proceeding against Indemnitors hereunder;
(2) The defense of the statute of limitations in any action hereunder;
(3) Any defense that may arise by reason of the incapacity, lack of
authority, death or disability of any other person or persons or the
failure of Lender to file or enforce a claim against the estate (in
administration, bankruptcy or any other proceeding) of any other
person or persons;
(4) Demand, presentment for payment, notice of nonpayment, protest, notice
of protest and all other notices of any
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kind, or the lack of any thereof, including, without limiting the
generality of the foregoing, notice of the existence, creation or
incurring of any new or additional indebtedness or obligation or of
any action or nonaction on the part of New Borrower, Lender, any
endorser or creditor of New Borrower or of either Indemnitor or on the
part of any other person whomsoever under this or any other instrument
in connection with any obligation or evidence of indebtedness held by
Lender;
(5) All rights and defenses arising out of an election of remedies by
Lender, even though that election of remedies, such as a nonjudicial
foreclosure with respect to security for a guaranteed obligation, has
destroyed an Indemnitors' rights of subrogation and reimbursement
against New Borrower by the operation of Section 580d of the
California Code of Civil Procedure or otherwise;
(6) Any right or claim of right to cause a marshaling of the assets of any
Indemnitor;
(7) Any principle or provision of law, statutory or otherwise, which is or
might be in conflict with the terms and provisions of this Agreement;
(8) Any duty on the part of Lender to disclose to Indemnitors any facts
Lender may now or hereafter know about New Borrower or the Security
Property, regardless of whether Lender has reason to believe that any
such facts materially increase the risk beyond that which Indemnitors
intend to assume or has reason to believe that such facts are unknown
to Indemnitors or has a reasonable opportunity to communicate such
facts to Indemnitors, it being understood and agreed that Indemnitors
are fully responsible for being and keeping informed of the financial
condition of New Borrower, of the condition of the Security Property
and of any and all circumstances bearing on the risk that liability
may be incurred by Indemnitors hereunder;
(9) Any lack of notice of disposition or of manner of disposition of any
collateral for the Loan;
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(10) Any invalidity, irregularity or unenforceability, in whole or in part,
of any one or more of the Loan Documents;
(11) Any lack of commercial reasonableness in dealing with the collateral
for the Loan;
(12) Any deficiencies in the collateral for the Loan or any deficiency in
the ability of Lender to collect or to obtain performance from any
persons or entities now or hereafter liable for the payment and
performance of any obligation hereby guaranteed;
(13) An assertion or claim that the automatic stay provided by 11 U.S. C.
(S)362 (arising upon the voluntary or involuntary bankruptcy
proceeding of New Borrower) or any other stay provided under any other
debtor relief law (whether statutory, common law, case law or
otherwise) of any jurisdiction whatsoever, now or hereafter in effect,
which may be or become applicable, shall operate or be interpreted to
stay, interdict, condition, reduce or inhibit the ability of Lender to
enforce any of its rights, whether now or hereafter required, which
Lender may have against any Indemnitor or the collateral for the Loan;
(14) Any modifications of the Loan Documents or any obligation of New
Borrower relating to the Loan by operation of law or by action of any
court, whether pursuant to the Bankruptcy Reform Act of 1978, as
amended, or any other debtor relief law (whether statutory, common
law, case law or otherwise) of any jurisdiction whatsoever, now or
hereafter in effect, or otherwise; and
(15) Any action, occurrence, event or matter consented to by Indemnitors
under Section 5(h) hereof, under any other provision hereof, or
otherwise.
5. GENERAL PROVISIONS.
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(1) Fully Recourse. All of the terms and provisions of this Agreement are
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recourse obligations of Indemnitors and not restricted by any
limitation on personal liability.
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(2) Unsecured Obligations. Indemnitors hereby acknowledge that Lender's
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appraisal of the Security Property is such that Lender is not willing
to accept the consequences of the inclusion of Indemnitors' indemnity
set forth herein among the obligations secured by the Deed of Trust
and the other Loan Documents and that Lender would not make the Loan
but for the unsecured personal liability undertaken by Indemnitors
herein.
(3) Survival. This Agreement shall be deemed to be continuing in nature
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and shall remain in full force and effect and shall survive the
exercise of any remedy by Lender under the Deed of Trust or any of the
other Loan Documents, including, without limitation, any foreclosure
or deed in lieu thereof, even if, as a part of such remedy, the Loan
is paid or satisfied in full.
(4) No Subrogation; No Recourse Against Lender. Notwithstanding the
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satisfaction by any Indemnitor of any liability hereunder, Indemnitors
shall not have any right of subrogation (including any rights arising
under California Civil Code Sections 2848 and 2849), contribution,
reimbursement (including any rights arising under California Civil
Code Section 2847), performance (including any rights arising under
California Civil Code Section 2846), or indemnity whatsoever or any
right of recourse to or with respect to New Borrower or the assets or
property of New Borrower or to any collateral for the Loan. In
connection with the foregoing, Indemnitors expressly waive any and all
rights of subrogation of Lender against New Borrower, and Indemnitors
hereby waive any rights to enforce any remedy which Lender may have
against New Borrower and any right to participate in any collateral
for the Loan. The parties included in Indemnitors recognize that,
pursuant to Section 580d of the California Code of Civil Procedure,
Lender's realization through non-judicial foreclosure upon any real
property constituting security for New Borrower's obligations under
the Loan Documents could terminate any right of Lender to recover a
deficiency judgment against New Borrower, thereby terminating
subrogation rights which such parties otherwise might have against New
Borrower. In the absence of an adequate waiver, such a termination of
subrogation rights could create a defense to enforcement of this
Agreement against such parties.
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Indemnitors hereby unconditionally and irrevocably waive any such
defense. In addition to and without in any way limiting the foregoing,
Indemnitors hereby subordinate any and all indebtedness of New
Borrower now or hereafter owed to any Indemnitor to all indebtedness
of New Borrower to Lender, and agrees with Lender that Indemnitors
shall not demand or accept any payment of principal or interest from
New Borrower, shall not claim any offset or other reduction of
Indemnitors' obligations hereunder because of any such indebtedness
and shall not take any action to obtain any of the collateral from the
Loan. Further, except in the event of Lender's gross negligence or
willful misconduct, Indemnitors shall not have any right of recourse
against Lender by reason of any action Lender may take or omit to take
under the provisions of this Agreement or under the provisions of any
of the Loan Documents.
(5) Reservation of Rights. Nothing contained in this Agreement shall
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prevent or in any way diminish or interfere with any rights or
remedies, including, without limitation, the right to contribution,
which Lender may have against New Borrower, Any Indemnitor or any
other party under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (codified at Title 42 U.S.C.
(S)9601 et seq.), as it may be amended from time to time, or any other
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applicable federal, state or local laws, all such rights being hereby
expressly reserved.
(6) Financial Statements. Each Indemnitor hereby agrees, as a material
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inducement to Lender to grant its consent as contemplated hereby, to
furnish to Lender promptly upon demand by Lender current and dated
financial statements detailing the assets and liabilities of
Indemnitor certified by Indemnitor, in form and substance acceptable
to Lender. Each Indemnitor hereby warrants and represents unto Lender
that any and all balance sheets, net worth statements and other
financial data which have heretofore been given or may hereafter be
given to Lender with respect to said Indemnitor did or will at the
time of such delivery fairly and accurately present the financial
condition of said Indemnitor.
(7) Rights Cumulative; Payments. Lender's rights under this Agreement
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shall be in addition to all rights of Lender
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under the Note, the Deed of Trust and the other Loan Documents.
(8) No Limitation on Liability. Indemnitors hereby consent and agree that
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Lender may at any time and from time to time without further consent
from Indemnitors do any of the following events, and the liability of
Indemnitors under this Agreement shall be unconditional and absolute
and shall in no way be impaired or limited by any of the following
events, whether occurring with or without notice to Indemnitors or
with or without consideration: (i) any extensions of time for
performance required by any of the Loan Documents or extension or
renewal of the Note; (ii) any sale, assignment or foreclosure of the
Note, the Deed of Trust or any of the other Loan Documents or any sale
or transfer of the Security Property; (iii) any change in the
composition of New Borrower, Parent or Tenant, including, without
limitation, the withdrawal or removal of Indemnitors from any current
or future position of ownership, management or control of Borrower,
Tenant or Parent; (iv) the accuracy or inaccuracy of the
representations and warranties made by Indemnitors herein or by New
Borrower or Tenant in any of the Loan Documents or the Assumption
Agreement; (v) the release of New Borrower or of any other person or
entity from performance or observance of any of the agreements,
covenants, terms or conditions contained in any of the Loan Documents
by operation of law, Lender's voluntary act or otherwise; (vi) the
release of Tenant or of any other person or entity from performance or
observance of any of the agreements, covenants, terms or conditions
contained in the Lease by operation of law or otherwise; (vii) the
release, substitution or subordination in whole or in part of any
security for the Loan; (viii) Lender's failure to record the
Assumption Agreement or to file any financing statement (or Lender's
improper recording or filing of the Deed of Trust) or to otherwise
perfect, protect, secure or insure any lien or security interest given
as security for the Loan; (ix) the modification of the terms of any
one or more of the Loan Documents; or (x) the taking or failure to
take any action of any type whatsoever. No such action which Lender
shall take or fail to take in connection with the Loan Documents or
any collateral for the Loan, the Lease, nor any course or
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dealing with New Borrower, Tenant, Parent, or any other person, shall
limit, impair or release Indemnitors' obligations hereunder, affect
this Agreement in any way or afford Indemnitors any recourse against
Lender. Nothing contained in this Section shall be construed to
require Lender to take or refrain from taking any action referred to
herein.
(9) Entire Agreement; Amendment; Severability. This Agreement contains
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the entire agreement between the parties respecting the matters herein
set forth and supersedes all prior agreements, whether written or
oral, between the parties respecting such matters. Any amendments or
modifications hereto, in order to be effective, shall be in writing
and executed by the parties hereto. A determination that any
provision of this Agreement is unenforceable or invalid shall not
affect the enforceability or validity of any other provision, and any
determination that the application of any provision of this Agreement
to any person or circumstance is illegal or unenforceable shall not
affect the enforceability or validity of such provision as it may
apply to any other persons or circumstances.
(10) Governing Law; Binding Effect; Waiver of Acceptance. This Agreement
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shall be governed by and construed in accordance with the laws of the
State of California, except to the extent that the applicability of
any of such laws may now or hereafter be preempted by Federal law, in
which case such Federal law shall so govern and be controlling. This
Agreement shall bind each Indemnitor and the heirs, personal
representatives, successors and assigns of each Indemnitor and shall
inure to the benefit of Lender and the officers, directors,
shareholders, servicers, agents and employees of Lender and their
respective heirs, successors and assigns. Notwithstanding the
foregoing, Indemnitors shall not assign any of their respective rights
or obligations under this Agreement without the prior written consent
of Lender, which consent may be withheld by Lender in its sole
discretion. Each Indemnitor hereby waives any acceptance of this
Agreement by Lender, and this Agreement shall immediately be binding
upon Indemnitors.
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(11) Notice. All notices, demands, requests or other communications to be
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sent by one party to the other hereunder or required by law shall be
in writing and shall be deemed to have been validly given or served by
delivery of the same in person to the intended addressee, or by
depositing the same with Federal Express or another reputable private
courier service for next business day delivery to the intended
addressee at its address set forth on the first page of this Agreement
or at such other address as may be designated by such party as herein
provided, or by depositing the same in the United States mail, postage
prepaid, registered or certified mail, return receipt requested,
addressed to the intended addressee at its address set forth on the
first page of this Agreement or at such other address as may be
designated by such party as herein provided. All notices, demands and
requests shall be effective upon such personal delivery, or one (1)
business day after being deposited with the private courier service,
or two (2) business days after being deposited in the United States
mail as required above. Rejection or other refusal to accept or the
inability to deliver because of changed address of which no notice was
given as herein required shall be deemed to be receipt of the notice,
demand or request sent. By giving to the other party hereto at least
fifteen (15) days' prior written notice thereof in accordance with the
provisions hereof, the parties hereto shall have the right from time
to time to change their respective addresses and each shall have the
right to specify as its address any other address within the United
States of America.
(12) No Waiver; Time of Essence; Business Day. The failure of any party
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hereto to enforce any right or remedy hereunder, or to promptly
enforce any such right or remedy, shall not constitute a waiver
thereof nor give rise to any estoppel against such party nor excuse
any of the parties hereto from their respective obligations hereunder.
Any waiver of such right or remedy must be in writing and signed by
the party to be bound. This Agreement is subject to enforcement at
law or in equity, including actions for damages or specific
performance. Time is of the essence hereof. The term "business day"
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as used herein shall mean a weekday, Monday through Friday, except a
legal holiday or a day on which banking
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institutions in New York, New York are authorized by law to be closed.
(13) Captions for Convenience. The captions and headings of the sections
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and paragraphs of this Agreement are for convenience of reference only
and shall not be construed in interpreting the provisions hereof.
(14) Attorneys' Fees. In the event it is necessary for Lender to retain
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the services of an attorney or any other consultants in order to
enforce this Agreement, or any portion thereof, Indemnitors agree to
pay to Lender any and all costs and expenses, including, without
limitation, reasonable attorneys' fees, incurred by Lender as a result
thereof and such costs, fees and expenses shall be included in Costs.
(15) Successive Actions. A separate right of action hereunder shall arise
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each time Lender acquires knowledge of any matter indemnified or
guaranteed by Indemnitors under this Agreement. Separate and
successive actions may be brought hereunder to enforce any of the
provisions hereof at any time and from time to time. No action
hereunder shall preclude any subsequent action, and Indemnitors hereby
waive and covenant not to assert any defense in the nature of
splitting of causes of action or merger of judgments.
(16) Reliance. Lender would not grant its consent to the Requested Actions
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without this Agreement. Accordingly, Indemnitor intentionally and
unconditionally enters into the covenants and agreements as set forth
above and understands that, in reliance upon and in consideration of
such covenants and agreements, Lender has agreed to give its consent
to the Requested Actions and, as part and parcel thereof, specific
monetary and other obligations have been, are being and shall be
entered into which would not be made or entered into but for such
reliance.
(17) SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
------------------------------------------------
(1) INDEMNITORS, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY
KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE
ADVICE OF COMPETENT COUNSEL, (A)
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SUBMIT TO PERSONAL JURISDICTION IN THE STATE OF CALIFORNIA OVER
ANY SUIT, ACTION OR PROCEEDING BY ANY PERSON ARISING FROM OR
RELATING TO THIS AGREEMENT, (B) AGREE THAT ANY SUCH ACTION, SUIT
OR PROCEEDING MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION SITTING IN SANTA XXXXX COUNTY, CALIFORNIA,
(C) SUBMIT TO THE JURISDICTION OF SUCH COURTS, AND, (D) TO THE
FULLEST EXTENT PERMITTED BY LAW, AGREE THAT NEITHER OF THEM WILL
BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM (BUT
NOTHING HEREIN SHALL AFFECT THE RIGHT OF LENDER TO BRING ANY
ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM). INDEMNITORS
FURTHER CONSENT AND AGREE TO SERVICE OF ANY SUMMONS, COMPLAINT OR
OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY
REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO THE
INDEMNITORS AT THE ADDRESS FOR NOTICES DESCRIBED IN SECTION 5(k)
HEREOF, AND CONSENT AND AGREE THAT SUCH SERVICE SHALL CONSTITUTE
IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN
SHALL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN
ANY OTHER MANNER PERMITTED BY LAW).
(2) LENDER AND INDEMNITORS, TO THE FULL EXTENT PERMITTED BY LAW,
HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON
THE ADVICE OF COMPETENT COUNSEL, WAIVE, RELINQUISH AND FOREVER
FORGO THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING
BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THIS
AGREEMENT OR ANY CONDUCT, ACT OR OMISSION OF LENDER OR
INDEMNITORS, OR ANY OF THEIR DIRECTORS, OFFICERS, PARTNERS,
MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS
AFFILIATED WITH LENDER OR INDEMNITORS, IN EACH OF THE FOREGOING
CASES, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
(18) Waiver by Indemnitors. Indemnitors covenant and agree that, upon the
---------------------
commencement of a voluntary or involuntary bankruptcy proceeding by or
against New Borrower, Indemnitors shall not seek or cause New Borrower
or any other person or entity to seek a supplemental stay or other
relief, whether injunctive or otherwise, pursuant to 11 U. S. C. (S)
105 or any other provision of the
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Bankruptcy Reform Act of 1978, as amended, or any other debtor relief
law, (whether statutory, common law, case law or otherwise) of any
jurisdiction whatsoever, now or hereafter in effect, which may be or
become applicable, to stay, interdict, condition, reduce or inhibit
the ability of Lender to enforce any rights of Lender against
Indemnitors or the collateral for the Loan by virtue of this Agreement
or otherwise.
(19) Joint and Several Liability. Notwithstanding anything to the contrary
---------------------------
herein, the representations, warranties, covenants and agreements made
by each of Indemnitors herein; and the liability of each of
Indemnitors hereunder, is joint and several.
(20) Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be effective only upon delivery and
thereafter shall be deemed an original, and all of which shall be
taken to be one and the same instrument, for the same effect as if all
parties hereto had signed the same signature page. Any signature page
of this Agreement may be detached from any counterpart of this
Agreement without impairing the legal effect of any signatures thereon
and may be attached to another counterpart of this Agreement identical
in form hereto but having attached to it one or more additional
signature pages.
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IN WITNESS WHEREOF, Indemnitors have executed this Agreement as of the day
and year first above written.
TENANT:
BROOKDALE LIVING COMMUNITIES OF
CALIFORNIA, INC., a Delaware corporation
By: _________________________________
Name: _________________________________
Title: _________________________________
PARENT:
BROOKDALE LIVING COMMUNITIES, INC.,
a Delaware corporation
By: _________________________________
Name: _________________________________
Title: _________________________________
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