BROOKDALE LIVING COMMUNITIES OF CALIFORNIA - RC
MULTIFAMILY GUARANTY AGREEMENT
THIS MULTIFAMILY GUARANTY AGREEMENT (this "Brookdale California-RC
Guaranty") is made as of this 18th day of December, 1998 by Brookdale Living
Communities of Calif. - RC, Inc., a corporation (the "Guarantor"), to Xxxxxx
Financial Group, Inc., a corporation organized and existing under the laws of
the state of Minnesota (the "Lender").
RECITALS
x. Xxxxxxxx Business Trust, a Delaware business trust, (the "Borrower")
has requested that the Lender make a loan to the Borrower in the sum of Thirty
One Million Five Hundred Thousand Dollars ($31,500,000) (the "Loan"). The Loan
will be evidenced by that certain Multifamily Note from Borrower to Lender in
the original principal amount of the Loan of even date herewith (the "Note"),
the terms and conditions of the Loan being set forth in the Note, and will be
secured by the Multifamily Deed of Trust, Assignment of Rents, Security
Agreement and Fixture Filing executed by the Borrower for the benefit of Lender
(the "Borrower Security Instrument"). The Note, the Borrower Security Instrument
and any other such documents and agreements executed by the Borrower are herein
collectively referred to as the "Loan Documents")
B. As a condition precedent to making the Loan available to Borrower,
Lender has required that Guarantor guarantee payment and performance of
Borrower's obligations under the Note in a manner satisfactory to Lender.
Guarantor has offered, and Lender has agreed to accept, the execution and
delivery of this Brookdale Calif. - RC Guaranty and the obligations arising
hereunder to be secured pursuant to that certain Brookdale Living Communities of
Calif.-RC, Inc. Leasehold Multifamily Deed of Trust, Security Agreement and
Assignment of Rents and Fixture Filing of even date herewith from Guarantor for
the benefit of Lender (the "Brookdale Calif.-RC Security Instrument").
C. Borrower has agreed to acquire the Property described in the
Borrower Security Instrument with the proceeds of the Loan and to enter into an
Operating Lease with Guarantor as described in the Brookdale Calif. - RC
Security Instrument, as a result of which Guarantor will derive substantial
benefits from the Loan.
NOW, THEREFORE, in consideration of the above and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Guarantor agrees as follows:
1. Incorporation of Recitals. The recitals of fact as set forth above
are hereby agreed to be true and are incorporated into the body of this
Brookdale Calif. - RC Guaranty by reference.
2. Guaranty of Payment.
PAGE 1
2.1 Guarantor hereby unconditionally and irrevocably
guarantees to Lender the due and punctual performance and full and
prompt payment (and not merely the collectibility) of any and all of
the following (collectively hereinafter referred to as the
"Indebtedness"); PROVIDED, HOWEVER, that the Lender's right to collect
from Guarantor amounts due under the Note shall be contingent upon
Borrower's failure to pay such amounts when due under the Note (but in
no event shall the foregoing contingency affect the Lender's right to
enforce against the Guarantor or any other party to the Loan Documents,
any other obligation thereunder in accordance with the terms thereof);
2.1.1. the principal sum of the Loan and all interest
accruing thereon, and all other amounts, sums, indebtedness,
and charges payable under the Note or other Loan Documents,
including prepayment premiums, if any, and late charges, in
each case when due and payable, whether on any installment
payment date or at the stated or accelerated maturity of the
Loan, all in accordance with the provisions of the Note and
the other Loan Documents;
2.1.2. each and every other sum or charge which at
any time becomes due and payable in accordance with the
provisions of the Note or any of the other Loan Documents, or
both;
2.1.3. any and all additional advances made by Lender
necessary to protect or preserve the Property (as the same are
more completely defined and described in the Borrower Security
Instrument) or any other collateral in which a security
interest has been created by the Borrower Security Instrument,
or for taxes, assessments, or insurance premiums as provided
by the Borrower Security Instrument or for the performance of
any of Borrower's other obligations under the Borrower
Security Instrument or for any other purpose provided for
therein (whether or not Borrower remains the owner of the Land
at the time of such advances);
2.1.4. any and all future advances, if applicable, as
provided for by the Borrower Security Instrument; and
2.1.5. any and all losses, damages or expenses
incurred by Lender and arising out of any default by Borrower
or Guarantor or any other party, except Lender, in performing
any of their respective obligations under the Note, this
Brookdale Calif. - RC Guaranty, or any of the other Loan
Documents.
2.2 This Brookdale Calif. - RC Guaranty is an absolute,
primary, present, continuing and unconditional guaranty of payment and
not of collectibility and is in no way conditioned or contingent upon
any action or omission by Lender or upon any other action, occurrence,
or circumstance whatsoever other than the occurrence of an Event of
Default (as the same is more completely defined and described in the
Borrower Security Instrument). Upon an Event of Default, Guarantor
hereby agrees to cause any such payment of the Indebtedness to be made
to Lender at the address specified in Section 18 of this Brookdale
Calif. - RC Guaranty, such payment to include overdue interest or late
charges, if any, payable under the Note or the other Loan Documents.
PAGE 2
2.3 The obligation of Guarantor under this Brookdale Calif. -
RC Guaranty shall not be subject to any counterclaim, set-off,
deduction or defense based upon any claim Guarantor may have against
Borrower either hereunder or otherwise.
2.4 This Brookdale Calif. - RC Guaranty shall be continuing
and shall not be discharged, impaired or affected by (a) the power or
authority or lack thereof of Borrower to issue the Note, or to execute,
acknowledge or deliver the Note, or any other Loan Document; (b) the
regularity, validity or invalidity, or enforceability or
unenforceability of the Note, or any other Loan Document; (c) the
existence or non-existence of Borrower as a legal entity; (d) the
transfer by Borrower of all or any part of the property securing this
Brookdale Calif. - RC Guaranty or the Loan evidenced by the Note; or
(e) any right of set off, counterclaim or defense that Guarantor may or
might have to its respective undertakings, liabilities and obligations
hereunder; or (f) any other event or circumstance which might otherwise
constitute a legal or equitable discharge, release or defense of a
guaranty, each and every such defense to the fullest extent legally
permitted being hereby waived by Guarantor.
3. Benefit. This Brookdale Calif.- RC Guaranty may be assigned or
transferred in whole or in part by Lender, and the benefit of this Brookdale
Calif. - RC Guaranty shall automatically pass with a transfer or assignment of
any portion of the Note to any subsequent owner or holder. All references to
Lender herein shall be deemed to include any successors or assignees or any
subsequent owners or holders of the Note or any of them. This Brookdale Calif. -
RC Guaranty is also given for the benefit of any person claiming by, through or
under Lender, including any purchaser of the security given for the Loan or any
portion thereof at foreclosure or as a result of the exercise of any right or
remedy provided under the Note or the other Loan Documents as permitted by law.
4. Actions by Lender. No action which Lender may take or omit to take
in connection with the Note or the Loan Documents or with respect to the
administration of the Loan, shall release, discharge or in any way affect
Guarantor's obligations hereunder, or afford Guarantor any recourse against
Lender. By way of example, but not in limitation of the foregoing, Guarantor
hereby expressly agrees that Lender may, from time to time, and without notice
to Guarantor:
(a) amend, change or modify, in whole or in part, the Note or
any other Loan Document;
(b) increase the amount of the Loan or otherwise change the
terms of the Indebtedness or any part thereof, including the increase
or decrease of the rate of interest thereon;
(c) accelerate, change, extend or renew the time for any
payment under the Note or for the performance of any obligation under
the Note or the other Loan Documents;
(d) waive any terms, conditions or covenants of the Note or
any of the other Loan
PAGE 3
Documents, or grant any extension of time or forbearance for
performance of the same;
(e) compromise or settle any amount due or owing, or claimed
to be due or owing, under the Note;
(f) surrender, release, subordinate, or otherwise alter any or
all security for the repayment of the indebtedness evidenced by the
Note or accept additional or substituted security therefor;
(g) release, substitute or add any guarantor or any new
guarantors and/or endorsers;
(h) take any other action or not take any action, either of
which would otherwise constitute a legal or equitable discharge or
defense of a guarantor;
(i) assign or otherwise transfer the Note, the Borrower
Security Instrument or any of the other Loan Documents or any other
security documents;
(j) Consent to a sale, assignment or transfer of any or all of
the Mortgaged Property (as defined in the Borrower Security Instrument)
or any other property secured by the Loan Documents; and
(k) may advance any sum if Lender deems it necessary or
advisable to perform any term or covenant, or satisfy any condition,
set forth in the provisions of any of the Loan Documents in accordance
with the terms thereof.
The provisions of this Brookdale Calif. - RC Guaranty shall extend and
be applicable to all renewals, amendments, extensions and modifications of the
Note or the other Loan Documents, and all references to the Note or any other
Loan Document shall be deemed to include any renewal, extension, amendment or
modification thereof.
5. Waivers. Guarantor hereby waives presentment, protest and demand,
notice of protest, demand and dishonor and non-payment of the Note and any
installment of principal and/or interest and/or any other sum due thereunder,
and notice of acceptance of this Brookdale Calif. - RC Guaranty.
Guarantor's liability and obligations hereunder shall in no way be
affected by any forbearance, waiver, consent, indulgence or other action or
inaction which Lender may hereafter accord, grant, or take with respect to
Borrower or by any exercise or non-exercise of any right, remedy, power or
privilege under or in respect of this Brookdale Calif. - RC Guaranty or any
other such instrument, or by any impairment, modification, release or limitation
of liability of Borrower or its estate in bankruptcy, or of any remedy for the
enforcement of such liability, resulting from the operation of any present or
future provision of the Federal Bankruptcy Act or other statute, or from the
decision of any court, or by any other circumstance which might otherwise
constitute a legal or
PAGE 4
equitable discharge or defense of a guarantor.
Guarantor hereby unconditionally to the fullest extent permitted by
law: (a) except for notices provided for in the Guaranty and the Brookdale
Security Instrument, waives notice of any matter relating to Borrower or the
Property or any other property securing the Loan or this Brookdale Calif. - RC
Guaranty or any other information regarding any matter which indicates that the
risk that Guarantor may be required to perform hereunder has or may be
increased, and agrees to assume full responsibility for being and keeping
informed of all such matters; (b) except for notices provided for in the Loan
Documents, waives all notices which may be required by statute, rule or law or
otherwise to preserve any rights of any holder of the Note against Guarantor;
and (c) waives notice of any requirement of diligence on the part of any holder
of the Note.
6. Independent Obligation. The obligations of any one or more Guarantor
hereunder are independent of the obligations of Borrower or of any other
guarantor.
7. Lender's Remedies; Guarantor's Waivers. Lender may, at its option
and to the fullest extent permitted by law, upon an Event of Default (as defined
in the Borrower Security Instrument) (a) proceed directly and at once, without
notice to Guarantor of such Event of Default, against Guarantor singly,
successively, concurrently or jointly to collect and recover the full amount of
the Indebtedness guaranteed hereby or any portion thereof without proceeding
against Borrower or any other person, or endorser, surety or guarantor, or
foreclosing upon, selling, or otherwise disposing of, or enforcing, or
collecting or applying any property, real or personal, Lender may then have as
security for the Note, and without enforcing or proceeding under any other
guaranty; or (b) exercise the rights and remedies granted to Lender in the
Borrower Security Instrument, or other Loan Documents. Guarantor expressly
waives any right to plead or assert any election of remedies if Lender should
sell the Property under the power of sale provisions contained in the Borrower
Security Instrument. Guarantor also waives any right to require or compel Lender
to (i) proceed against Borrower or any other guarantor; (ii) proceed against or
exhaust any security held by Borrower or Grantor; (iii) proceed pursuant to the
Note or any Loan Document or with respect to the real or personal property
securing the Note or this Brookdale Calif. - RC Guaranty before pursuing its
remedies under any other agreement or instrument; and (iv) pursue any other
remedy in Lender's power whatsoever. Until the full amount of the Indebtedness
guaranteed hereby has been paid in full, even though such Indebtedness is or may
be in excess of Guarantor's liability hereunder, Guarantor shall have no right
to subrogation, and waives any right to enforce any remedy which Lender now has
or may hereafter have against Borrower, and waives any benefit of, and any right
to participate in, any security now or hereafter held by Lender.
Nothing herein shall prohibit Lender from exercising its rights against
Guarantor, any other guarantor, endorser, or surety, the security, if any, for
the Loan, and Borrower simultaneously, jointly and/or severally.
Neither the declaration of an Event of Default nor the exercise of any
remedies against Borrower, nor the sale, enforcement or realization of any
security for the repayment of the indebtedness evidenced by the Note shall in
any way affect Guarantor's obligations hereunder, even though any rights which
Guarantor may have against Borrower or others may be destroyed,
PAGE 5
diminished or otherwise affected by such action.
8. Bankruptcy or Insolvency/Subordination. If at any time any payment,
or portion thereof, made by, or for the account of Guarantor on account of any
of the Indebtedness is set aside by any court or trustee having jurisdiction as
a voidable preference or fraudulent conveyance or must otherwise be restored or
returned by Lender to Guarantor under any insolvency, bankruptcy or other
federal and/or state laws or as a result of, any dissolution, liquidation or
reorganization of Borrower or upon, or as a result of any dissolution,
liquidation or reorganization of Borrower or upon, or as a result of, the
appointment of any receiver, intervenor or conservator of, or trustee or similar
officer for, Borrower or any substantial part of its properties or assets,
Guarantor hereby agrees that this Brookdale Calif. - RC Guaranty shall continue
and remain in full force and effect or be reinstated, as the case may be, all as
though such payment(s) had not been made.
Guarantor hereby subordinates any and all indebtedness of Borrower now
or hereafter owed to Guarantor, to all indebtedness of Borrower to Lender and
shall not claim any offset or other reduction of any of Guarantor's obligations
hereunder because of such indebtedness and shall not take any action which will
in any way impair Lender's ability to receive full payment of the Note and other
sums guaranteed hereunder. Notwithstanding anything contained herein to the
contrary, Guarantor shall remain liable to Lender for any and all Indebtedness
paid by any person or entity, including Guarantor, which is later set aside for
any reason, including a finding by any federal or state bankruptcy court having
jurisdiction that any such payment by any person or entity, including Guarantor,
was a preferential transfer.
9. Lender's Waivers. Lender shall not by any act or omission or
commission be deemed to release Guarantor or to waive any of its rights or
remedies hereunder or under the Note or any other Loan Document unless such
waiver be in writing and signed by Lender, and then only to the extent
specifically set forth therein; a waiver on one event shall not be construed as
continuing or as a bar to or waiver of such right or remedy on a subsequent
event.
10. Delegation. Guarantor's obligations hereunder shall not be assigned
or delegated.
11. Statute of Limitations. To the extent permitted by law, Guarantor
expressly waives the defense of the statute of limitations in any action to
enforce this Brookdale Calif. - RC Guaranty.
12. Costs of Enforcement. Guarantor shall pay all expenses and costs,
including fees and out-of-pocket expenses of attorneys and expert witnesses and
costs of investigation, incurred by Lender as a result of any default under this
Brookdale Calif. - RC Guaranty or the Loan or in connection with efforts to
collect any amount due under this Brookdale Calif. - RC Guaranty or the other
Loan Documents, including those incurred in post-judgment collection efforts and
in any bankruptcy proceeding (including any action for relief from the automatic
stay of any bankruptcy proceeding) or judicial or non-judicial foreclosure
proceeding. Any reference to "attorney fees" in this document includes but is
not limited to both the fees, charges and costs incurred by Lender
PAGE 6
through its retention of outside legal counsel and the allocable fees, costs and
charges for services rendered by Lender's in-house counsel. Any reference to
"attorney fees" shall also include but not be limited to those attorneys or
legal fees, costs and charges incurred by Lender in the collection of any
indebtedness, including, without limitation, the Indebtedness, the enforcement
of any obligations hereunder, the protection of the Security, the foreclosure of
the Borrower Security Instrument, the sale of the Security, the defense of
actions arising hereunder and the collection, protection or set off of any claim
the Lender may have in a proceeding under Xxxxx 00, Xxxxxx Xxxxxx Code.
Attorneys fees provided for hereunder shall accrue whether or not Lender has
provided notice of an Event of Default or of an intention to exercise its
remedies for such Event of Default.
13. Governing Law and Consent to Jurisdiction. Guarantor agrees that
any controversy arising under or in relation to this Brookdale Calif. - RC
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 Brookdale Calif. - RC Guaranty, the Note, the Borrower 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.
14. 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.
15. Invalidity of Particular Provisions. If any term or provision of
this Brookdale Calif. - RC Guaranty shall be determined to be illegal or
unenforceable, all other terms and provisions hereof shall nevertheless remain
effective and shall be enforced to the fullest extent permitted by law.
16. Headings. The headings used herein are for purposes of convenience
only and should not be used in construing the provisions hereof.
17. Subrogation. In the event that Guarantor shall perform any
obligation or pay any or all of the Loan, any right of subrogation it may have
shall be suspended and shall not be effective until all of the obligations and
the Loan to Lender on the part of Borrower shall be fully discharged to Lender's
satisfaction.
18. Notices. Any notice, demand, request, statement or consent made
hereunder shall
PAGE 7
be in writing, signed by the party giving such notice, request, demand,
statement, or consent, and shall be deemed to have been properly given when
either delivered personally, delivered to a reputable overnight delivery service
providing a receipt or deposited in the United States mail, postage prepaid and
registered or certified return receipt requested, at the address set forth
below, or at such other address within the continental United States of America
as may theretofore have been designated in writing. The effective date of any
notice given as aforesaid shall be the date of personal service, one (1)
Business Day (as defined in the Borrower Security Instrument) after delivery to
such overnight delivery service, or three (3) Business Days after being
deposited in the United States mail, whichever is applicable. For purposes
hereof, the addresses are as follows:
If to Lender: Xxxxxx Financial Group, Inc.
0000 Xxxxxxxxxx Xxxxxx Xxxx, #000X
Xx. Xxxx, Xxxxxxxxx 00000
Attn: Mortgage servicing
to Guarantor: Brookdale Living Communities of California -RC, Inc.
c/o Brookdale Living Communities, Inc
000 X. Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000\
Attn.: Xxxxxx X. Xxxxxxxx, Xx.
With a copy to: Brookdale Living Communities of California -RC, Inc.
c/o Brookdale Living Communities, Inc
000 X. Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxxx X. Xxxxxx
19. No Exoneration. The initiation of foreclosure proceedings by Lender
or the exercise of any other rights or remedies by Lender under the Borrower
Security Instrument or the other Loan Documents (exclusive of the right to elect
not to enforce this Brookdale Calif. - RC Guaranty as provided herein) shall not
exonerate Guarantor in any respect and notwithstanding such action by Lender,
Guarantor shall remain fully responsible to perform under the terms of this
Brookdale Calif. - RC Guaranty.
20. Subordination. Any lien or charge on the Property or any other
property now or
PAGE 8
hereafter securing this Brookdale Calif. - RC Guaranty or the Loan and all
rights therein and thereto or on or in the revenue and income to be realized
therefrom which Guarantor may now have or may in the future obtain as security
for any loans or advances to Borrower shall be and are expressly subordinate to
the lien or charge of the Borrower Security Instrument and the other Loan
Documents; and any indebtedness of Borrower to Guarantor, if Lender so requests,
shall be collected, enforced and received by Guarantor, as trustee for Lender,
and be paid over to Lender on account of the Indebtedness but without reducing
or affecting in any manner the liability of Guarantor under the provisions of
this Brookdale Calif. - RC Guaranty.
21. Successors and Assigns. All undertakings, covenants and agreements
in this Brookdale Calif. - RC Guaranty contained shall bind the successors and
assigns of Guarantor, including any corporation with or into which Guarantor may
be consolidated or merged or to which Guarantor may sell or otherwise dispose of
its properties substantially as an entirety.
22. Termination. Subject to the terms of the next Section, this
Brookdale Calif. - RC Guaranty shall remain in full force and effect, without
abatement, until the Indebtedness (as defined in the Borrower Security
Instrument) is paid in full and upon such payment in full of the Indebtedness,
this Brookdale Calif. - RC Guaranty shall terminate.
23. Scope of Liability. The terms and provisions of Section 6 (Limits
on Personal Liability) of the Brookdale Calif. - RC Security Instrument are
hereby incorporated by reference herein.
24. Joint and Several Liability. Subject to the provisions of Section
24 hereinabove, if there is more than one Guarantor, each Guarantor hereby
acknowledges and agrees that each and every one of Guarantor's obligations under
this Brookdale Calif. - RC Guaranty is and shall be joint and several and Lender
may obtain satisfaction of Guarantor's obligations from any one or more of
Guarantor independently, successively, simultaneously or concurrently.
25. Amendment. This Brookdale Calif. - RC Guaranty may be amended or
supplemented by and only by an instrument executed and delivered by the Grantor
and Lender.
26. Time of essence. Time shall be of the essence with respect to the
intent, meaning and construction of each and every provision of this Brookdale
Calif. - RC Guaranty.
27. Construction. As used herein,
(a) the term "person" means a natural person, a trustees, a
corporation, a partnership and any other form of legal entity;
(b) all references made (i) in the neuter, masculine or
feminine gender shall be deemed to have been made in all such genders;
(ii) in the singular or plural number shall be deemed to have been
made, respectively, in the plural or singular number as well; (iii) to
any Section,
PAGE 9
subsection, paragraph or subparagraph shall, unless therein expressly
indicated to the contrary, be deemed to have been made to such Section,
subsection, paragraph or subparagraph of this Brookdale Calif. - RC
Guaranty; and (iv) to Guarantor, Lender or Borrower shall be deemed to
refer to each person hereinabove so named, and their respective heirs,
personal representatives, successors and assigns.
28. Complete Understanding. This Brookdale Calif - RC Guaranty
represents the complete understanding between the parties hereto as to the
subject matter hereof, and supersedes all prior negotiations, representation,
warranties, statements or agreements, either written or oral, between or among
the parties hereto as to the same.
ATTACHED EXHIBIT. The following Exhibit is attached to this Brookdale
Calif - RC Guaranty:
|_X_| Exhibit A Modifications to Brookdale Calif - RC Guaranty]
PAGE 10
IN WITNESS WHEREOF, this Brookdale Calif - RC Guaranty has been
executed under seal as of the day and year first above written.
WITNESS: GUARANTOR:
-------------------------------, a
-------------------------------
-------------------------------- By:----------------------------------(SEAL)
Name:
Title:
PAGE 11
Exhibit A
The following additional provisions shall apply to this Brookdale Living
Communities of Calif.-RC Guaranty:
1. Guarantor hereby waives any and all benefits and defenses under Calif. Civil
Code Section 2810 and agrees that by doing so Guarantor shall be liable even if
Borrower had no liability at the time of execution of the Note, Brookdale
Calif-RC Security Instrument or any other Loan Document, or thereafter ceases to
be liable. Guarantor hereby waives any and all benefits and defenses under
Calif. Civil Code Section 2809 and agrees that by doing so Guarantor's liability
may be larger in amount and more burdensome than that of Borrower. 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 Brookdale
Calif.-RC Guaranty and agrees that Guarantor's obligations shall not be affected
by any circumstances, whether or not referred to in this Brookdale Calif.-RC
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 Brookdale Calif.-RC Guaranty which may be required by statute, rule of
law or otherwise to preserve Lender's rights against Guarantor under this
Brookdale Calif.-RC Guaranty, including, but 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
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, including any and all benefits
under California Civil Code Sections 2845, 2849 and 2850.
2. Guarantor understands that the exercise by Lender of certain rights
and remedies contained in the Borrower Security Instrument (such as a
nonjudicial foreclosure sale) may affect or eliminate Guarantor's right of
subrogation against Borrower and that Guarantor may therefore incur a partially
or totally nonreimburseable liability under this Brookdale Calif.-RC Guaranty.
Nevertheless, Guarantor hereby authorizes and empowers Lender to exercise, in
its sole and absolute discretion, any right or remedy, or any combination
thereof, which may then be available, since it is the intent and purpose of
Guarantor that the obligations under this Brookdale
PAGE 12
Calif.-RC Guaranty shall be absolute, independent and unconditional under any
and all circumstances. Guarantor expressly waives any defense (which defense, if
Guarantor had not given this waiver, Guarantor might otherwise have) to a
judgment against Guarantor by reason of a nonjudicial foreclosure. Without
limiting the generality of the foregoing, Guarantor hereby expressly waives any
and all benefits under (i) California Code of Civil Procedure Section 580a
(which Section, if Guarantor had not given this waiver, would otherwise limit
Guarantor's liability after a nonjudicial foreclosure sale to the difference
between the obligations of Guarantor under this Brookdale Calif.-RC Guaranty and
the fair market value of the property or interests sold a such nonjudicial
foreclosure sale), (ii) California Code of Civil Procedure Sections 580b and
580d (which Sections, if Guarantor had not given this waiver, would otherwise
limit Lender's right to recover a deficiency judgment with respect to purchase
money obligations and after a nonjudicial foreclosure sale, respectively), and
(iii) California Code of Civil Procedure Section 726 (which Section, if
Guarantor had not given this waiver, among other things, would otherwise require
Lender to exhaust all of its security before a personal judgment could be
obtained for a deficiency). Notwithstanding any foreclosure of the lien of the
Brookdale Calif.-RC Security Instrument or the Borrower Security Instrument,
whether by the exercise of the power of sale contained in the Brookdale
Calif.-RC Security Instrument or the Borrower Security Instrument, by an action
for judicial foreclosure or by Lender's acceptance of a deed in lieu of
foreclosure, Guarantor shall remain bound under this Brookdale Calif.-RC
Guaranty.
3. In accordance with Section 2856 of the California Civil Code,
Guarantor also waives any right or defense based upon an election of remedies by
Lender, even though such election (e.g., nonjudicial foreclosure with respect to
any collateral held by Lender to secure repayment of the Indebtedness) destroys
or otherwise impairs the subrogation rights of Guarantor or the right of
Guarantor (after payment of the obligations guaranteed by Guarantor under this
Brookdale Calif.-RC Guaranty) to proceed against Borrower for reimbursement, or
both, by operation of Section 580d of the Code of Civil Procedure or otherwise.
4. In accordance with Section 2856 of the California Civil Code,
Guarantor waives any and all other rights and defenses available to Guarantor by
reason of Sections 2787 through 2855, inclusive, of the California Civil Code,
including any and all rights or defenses Guarantor may have by reason of
protection afforded to Borrower with respect to any of the obligations of
Guarantor under this Brookdale Calif.-RC Guaranty pursuant to the antideficiency
or other laws of the State of California limiting or discharging Borrower's
Indebtedness, including Sections 580a, 580b, 580d, and 726 of the California
Code of Civil Procedure.
5. In accordance with Section 2856 of the California Civil Code,
Guarantor agrees to withhold the exercise of any and all subrogation and
reimbursement rights against Borrower, against any other person, and against any
collateral or security for the Indebtedness, including any such rights pursuant
to Sections 2847 and 2848 of the California Civil Code, until the Indebtedness
has been indefeasibly paid and satisfied in full, all obligations owed to Lender
under the Loan Documents have been fully performed, and Lender has released,
transferred or
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disposed of all of its right, title and interest in such collateral or security.
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