Exhibit 10.22
GUARANTY OF AGREEMENT REGARDING LEASES
THIS GUARANTY OF AGREEMENT REGARDING LEASES (this "Guaranty") is made and
entered into to be effective as of October 20, 2004 (the "Effective Date"), by
ALTERRA HEALTHCARE CORPORATION, a Delaware corporation ("Guarantor"), in favor
of PSLT-ALS PROPERTIES HOLDINGS, LLC, a Delaware limited liability company
("PSLT-ALS Holdings").
RECITALS:
WHEREAS, as of the Effective Date, PSLT-ALS Holdings and ALS Properties
Holding Company, LLC, a Delaware limited liability company, as tenant ("ALS
Holdings"), have executed and entered into (i) that certain Agreement
Regarding Leases, and (ii) a certain Agreement Regarding ARL (the Agreement
Regarding Leases, as so modified, and as the same may be renewed, extended, or
further amended or modified from time to time, the "Agreement Regarding
Leases"), pertaining to the Facilities. Capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to such terms in the
Agreement Regarding Leases;
WHEREAS, Guarantor is a direct or indirect owner of 100% of the
beneficial ownership interest in ALS Holdings, and Guarantor will derive
substantial direct and indirect benefits from the transactions contemplated by
the Agreement Regarding Leases; and
WHEREAS, it is a condition to the entering into of the Agreement
Regarding Leases by PSLT-ALS Holdings that Guarantor shall have executed and
delivered this Guaranty.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged by Guarantor, and in order to induce PSLT-ALS Holdings to enter
into the Agreement Regarding Leases, Guarantor hereby agrees as follows:
Section 1. GUARANTY. Guarantor hereby unconditionally and irrevocably
guarantees (i) the full and prompt payment of all Alterra Rent Payments and
other sums required to be paid by ALS Holdings under the Agreement Regarding
Leases, (ii) the full and timely performance of all other terms, conditions,
covenants and obligations of ALS Holdings under the Agreement Regarding Leases
(as same may be amended, renewed, extended or modified), and (iii) any and all
expenses (including reasonable attorneys' fees and expenses) incurred by
PSLT-ALS Holdings in enforcing any rights under the Agreement Regarding Leases
or this Guaranty (such obligations, collectively, are referred to as the
"Guaranteed Obligations"). Guarantor agrees that this Guaranty is a guarantee
of payment and performance, not collection, and that Guarantor is primarily
liable and responsible for the payment and performance of the Guaranteed
Obligations. It is not necessary for PSLT-ALS Holdings, in order to enforce
payment and performance by Guarantor under this Guaranty, first or
contemporaneously to institute suit or exhaust remedies against ALS Holdings
or others liable for any of the Guaranteed Obligations or to enforce rights
against any collateral securing any of it. With the exception of the defense
of
prior payment, performance, or compliance by ALS Holdings or Guarantor of the
Guaranteed Obligations which Guarantor is called upon to pay, or the defense
that PSLT-ALS Holdings' claim against Guarantor hereunder is barred by the
applicable statute of limitations, all defenses of the law of guaranty or
suretyship, including, without limitation, substantive defenses and procedural
defenses, are waived and released by Guarantor to the extent permitted by law.
Except as provided in the preceding sentence, under no circumstances will the
liability of Guarantor under this Guaranty be terminated either with respect
to any period of time when the liability of ALS Holdings under the Agreement
Regarding Leases continues, or with respect to any circumstances as to which
the Guaranteed Obligations have not been fully discharged by payment,
performance or compliance.
Section 2. GUARANTY ABSOLUTE. Guarantor guarantees that the Guaranteed
Obligations will be paid and performed strictly in accordance with the terms
of the Agreement Regarding Leases. The liability and responsibilities of
Guarantor under this Guaranty shall be absolute and unconditional, shall not
be subject to any counterclaim, setoff, or deduction and shall not be
released, discharged, affected or impaired by (i) any change in the time,
manner, or place of payment or performance of any of the Guaranteed
Obligations, or any other amendment or waiver of, or any consent to or
departure from, or termination of, the Agreement Regarding Leases or any of
the Property Leases, (ii) any release or discharge of ALS Holdings or any
Alterra Lessee in any bankruptcy, receivership or other similar proceedings,
(iii) the impairment, limitation or modification of the liability of ALS
Holdings or the estate of ALS Holdings in bankruptcy or any Alterra Lessee or
the estate of any Alterra Lessee in bankruptcy, or of any remedy for the
enforcement of ALS Holdings' liability under the Agreement Regarding Leases,
resulting from the operation of any present or future provisions of any
bankruptcy code or other statute or from the decision in any court, the
rejection or disaffirmance of the Agreement Regarding Leases in any such
proceedings, or the assignment or transfer of the Agreement Regarding Leases
by ALS Holdings, (iv) any failure, omission or delay on the part of PSLT-ALS
Holdings to enforce, assert or exercise any right, power or remedy conferred
on or available to PSLT-ALS Holdings in or by the Agreement Regarding Leases
or this Guaranty, or any action on the part of PSLT-ALS Holdings granting
indulgence or extension in any form whatsoever or any invalidity, irregularity
or unenforceability as to ALS Holdings of all or any part of the Guaranteed
Obligations or any security therefor, (v) the waiver by PSLT-ALS Holdings of
the performance or observance by ALS Holdings or Guarantor of any of the
agreements, covenants, terms or conditions contained in the Agreement
Regarding Leases or this Guaranty, (vi) any merger, consolidation,
reorganization or similar transaction involving ALS Holdings even if ALS
Holdings ceases to exist as a result of (and is not the surviving party in)
such transaction, (vii) the inability of PSLT-ALS Holdings or ALS Holdings to
enforce any provision of the Agreement Regarding Leases for any reason, (viii)
any change in the corporate relationship between ALS Holdings and Guarantor or
any termination of such relationship, (ix) any change in the ownership of all
or any part of the membership interests in ALS Holdings, (x) the inability of
ALS Holdings to perform, or the release of ALS Holdings or Guarantor from the
performance of, any obligation, agreement, covenant, term or condition under
the Agreement Regarding Leases or this Guaranty by reason of any law,
regulation or decree, now or hereafter in effect, or (xi) any disability or
other defense of ALS Holdings. PSLT-ALS Holdings and ALS Holdings, without
notice to or consent by Guarantor, may at any time or times enter into such
modifications, extensions, amendments, or other covenants with respect to the
Agreement Regarding Leases as they may deem appropriate and Guarantor shall
not be released thereby, but shall continue to be
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fully liable for the payment and performance of all liabilities, obligations
and duties of ALS Holdings under the Agreement Regarding Leases as so
modified, extended or amended.
Section 3. REINSTATEMENT. Guarantor further agrees that, if at any time
all or any part of any payment applied to any of the Guaranteed Obligations is
or must be rescinded or returned for any reason whatsoever (including, without
limitation, the insolvency, bankruptcy or reorganization of Guarantor), such
Guaranteed Obligations shall, for the purposes of this Guaranty, to the extent
that such payment is or must be rescinded or returned, be deemed to have
continued in existence, notwithstanding such application, and this Guaranty
shall continue to be effective or be reinstated, as the case may be, as to
such Guaranteed Obligations, all as though such application had not been made.
Section 4. CERTAIN ACTIONS. PSLT-ALS Holdings may, from time to time, at
its discretion and without notice to Guarantor, take any or all of the
following actions: (a) retain or obtain the primary or secondary obligation of
any obligor or obligors, in addition to Guarantor, with respect to any of the
Guaranteed Obligations; (b) extend or renew for one or more periods
(regardless of whether longer than the original period), or release or
compromise any obligation of Guarantor hereunder or any obligation of any
nature of any other obligor (including, without limitation, ALS Holdings) with
respect to any of the Guaranteed Obligations; or (c) release or fail to
perfect any lien upon or security interest in, or impair, surrender, release
or permit any substitution or exchange for, all or any part of any property
securing any of the Guaranteed Obligations or any obligation hereunder, or
extend or renew for one or more periods (regardless of whether longer than the
original period) or release or compromise any obligations of any nature of any
obligor with respect to any such property.
Section 5. WAIVER. To the extent permitted by applicable law, Guarantor
hereby expressly waives: (i) notice of the acceptance of this Guaranty, (ii)
except as otherwise provided in the Agreement Regarding Leases or this
Guaranty, notice of the existence or creation or non-payment of all or any of
the Guaranteed Obligations, (iii) presentment, demand, notice of dishonor,
protest and all other notices whatsoever except as otherwise provided in the
Agreement Regarding Leases or this Guaranty, and (iv) all diligence in
collection or protection of or realization upon the Guaranteed Obligations or
any part thereof, any obligation hereunder, or any security for or guaranty of
any of the foregoing.
Section 6. WAIVER OF SUBROGATION. Guarantor hereby waives all rights of
subrogation which it may at any time otherwise have as a result of this
Guaranty to the claims of PSLT-ALS Holdings against ALS Holdings and all
contractual, statutory or common law rights of reimbursement, contribution or
indemnity from ALS Holdings which it may at any time otherwise have as a
result of this Guaranty prior to final payment and satisfaction of the
Guaranteed Obligations.
Section 7. MISCELLANEOUS.
7.1 Amendments, Etc. No amendment or waiver of any provision of this
Guaranty nor consent to any departure by Guarantor therefrom shall be
effective unless the same shall be in writing and signed by PSLT-ALS Holdings.
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7.2 Addresses for Notices. All notices hereunder shall be in writing,
personally delivered, delivered by overnight courier service, sent by
facsimile transmission (with confirmation of receipt), or sent by certified
mail, return receipt requested, addressed as follows, or to such other address
as shall be designated by Guarantor or PSLT-ALS Holdings in written notice to
the other party:
If to ALS Holdings: ALS Properties Holding Company, LLC
c/o Alterra Healthcare Corporation
0000 X. Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Alterra Healthcare Corporation
c/o Alterra Healthcare Corporation
0000 X. Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and to: Xxxxxx & Hardin LLP
000 Xxxxxxxxx Xxxxxx
0000 Xxxxxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Guarantor: Alterra Healthcare Corporation
c/o Alterra Healthcare Corporation
0000 X. Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Xxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx
0000 Xxxxxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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If to PSLT-ALS Holdings: PSLT-ALS Properties Holdings, LLC
c/o Provident Senior Living Trust
000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Sidley Xxxxxx Xxxxx & Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
7.3 No Waiver; Remedies. No failure on the part of PSLT-ALS Holdings to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right
hereunder preclude any other or further exercise thereof or the exercise of
any other right. The remedies herein provided are cumulative and not exclusive
of any other remedies available at law or equity.
7.4 Continuing Guaranty; Transfer of Interest. This Guaranty shall create
a continuing guaranty and will (i) remain in full force and effect until
payment and performance in full and satisfaction of the Guaranteed
Obligations, (ii) be binding upon Guarantor and its successors and assigns,
and (iii) inure, together with the rights and remedies of PSLT-ALS Holdings
hereunder, to the benefit of PSLT-ALS Holdings and its successors, as
permitted under the Agreement Regarding Leases. Without limiting the
generality of the foregoing clause, if and when PSLT-ALS Holdings assigns or
otherwise transfers any interest held by it under the Agreement Regarding
Leases to any other person, that other person shall thereupon become vested
with all the benefits held by PSLT-ALS Holdings under this Guaranty.
Section 8. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 9. INDUCEMENT TO LANDLORD. Guarantor acknowledges and agrees that
the execution and delivery of this Guaranty by Guarantor to PSLT-ALS Holdings
has served as a material inducement to PSLT-ALS Holdings to execute and
deliver the Agreement Regarding Leases, and Guarantor further acknowledges and
agrees that but for the execution and delivery of this Guaranty by Guarantor,
PSLT-ALS Holdings would not have executed and delivered the Agreement
Regarding Leases.
Section 10. INTENTIONALLY DELETED.
Section 11. INTENTIONALLY DELETED.
Section 12. SUBMISSION TO JURISDICTION. Guarantor hereby irrevocably
submits to the non-exclusive jurisdiction of any State or Federal court
located in Xxx Xxxx
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Xxxxxx, Xxx Xxxx Xxxxx over any action, suit or proceeding to enforce or
defend any right under this Guaranty or otherwise arising from or relating to
this Guaranty, and Guarantor irrevocably agrees that all claims in respect of
any such action, suit or proceeding may be heard and determined in such court.
Guarantor hereby irrevocably waives, to the fullest extent that it may
effectively do so, the defense of an inconvenient forum or venue to the
maintenance of any such action, suit or proceeding. Guarantor hereby agrees
that a final, non-appealable judgment in any such action, suit or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
Section 13. WAIVER OF JURY TRIAL. Guarantor hereby waives, to the fullest
extent permitted by applicable law, any right to a trial by jury in any
action, suit or proceeding to enforce or defend any rights under this Guaranty
or any other transaction document or any amendment, instrument, document or
agreement delivered or which may in the future be delivered in connection
herewith or arising from or relating to any relationship existing in
connection with this guaranty, and agrees, to the fullest extent permitted by
applicable law, that any such action, suit or proceeding shall be tried before
a court and not before a jury.
Section 14. COOPERATION, FURTHER ASSURANCES. Guarantor covenants, and
agrees to sign, execute and deliver or cause to be signed, executed and
delivered and to do or make, or to cause to be done or make, upon the written
request of PSLT-ALS Holdings, any and all agreements, instruments, papers,
deeds, acts or things, supplemental, confirming or otherwise, as may be
reasonably required by PSLT-ALS Holdings for the purpose of, or in connection
with, the transaction contemplated hereby. Upon full and final payment and
performance of the Guaranteed Obligations, PSLT-ALS Holdings agrees to execute
a release for the benefit of Guarantor, in form and content reasonably
satisfactory to PSLT-ALS Holdings. Notwithstanding anything to the contrary
contained herein, this Guaranty shall survive for a period of twenty four (24)
months after the expiration or earlier termination of the Agreement Regarding
Leases, and Guarantor shall be liable to PSLT-ALS Holdings hereunder for any
Guaranteed Obligations which arise during such period and relate to matters
which (i) occurred during the term of the Agreement Regarding Leases or (ii)
ALS Holdings is otherwise required to indemnify PSLT-ALS Holdings against
pursuant to the terms of the Agreement Regarding Leases.
Section 15. INTENTIONALLY DELETED.
Section 16. Delivery of Financial Information. Guarantor hereby agrees to
cause ALS Holdings to deliver the financial information of Guarantor required
to be delivered to PSLT-ALS Holdings pursuant to Paragraph 9(d) of the
Agreement Regarding Leases and further agrees that any such financial
information of Guarantor so delivered may, without the prior consent of, or
notice to, Guarantor, be disclosed in offering memoranda or prospectuses, or
similar publications in connection with syndications, private placements or
public offerings of PSLT-ALS Holdings' (or PSLT-ALS Holdings' direct or
indirect Parent's) securities or interests, and any other reporting
requirements under applicable federal and state laws, including those of any
successor to PSLT-ALS Holdings. Guarantor agrees to provide such other
reasonable information necessary to facilitate a private placement or a public
offering or to satisfy the SEC or regulatory disclosure requirements.
Guarantor agrees to cause its independent accountants, at PSLT-ALS Holdings'
cost, to consent to the inclusion of their audit report issued with respect to
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such financial statements in any registration statement or other filing under
federal and state laws and to provide the underwriters participating in any
offering of securities or interests of PSLT-ALS Holdings (or PSLT-ALS
Holdings' direct or indirect Parent) with a standard accountant's "comfort"
letter with regard to the financial information of Guarantor included or
incorporated by reference into any prospectus or other offering document.
Guarantor also agrees to make available to any underwriter participating in an
offering of PSLT-ALS Holdings' (or PSLT-ALS Holdings' direct or indirect
Parent's) securities or interests, and any attorney, accountant or other agent
or representative retained by an underwriter (an "Inspector"), all financial
and other records and pertinent corporate documents of Guarantor as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause Guarantor's directors, officers and employees to
supply all information requested by any such Inspector in connection with such
offering. Upon request of PSLT-ALS Holdings, Guarantor shall notify PSLT-ALS
Holdings of any necessary corrections to information PSLT-ALS Holdings
proposes to publish within a reasonable period of time (not to exceed three
(3) Business Days) after being informed thereof by PSLT-ALS Holdings.
Section 17. INDEMNITY.
17.1 Indemnity. Guarantor shall indemnify, defend, protect and hold
harmless PSLT-ALS Holdings, its Affiliates, its direct and indirect Parent,
directors, employees, agents and each Person, if any, who controls PSLT-ALS
Holdings or any such Affiliate within the meaning of Section 15 of the
Securities Act of 1933 or Section 20 of the Securities Exchange Act of 1934,
and any placement agent or underwriter with respect to any syndication,
private placement or public offering, from and against all Losses (defined
below) that any Indemnified Party (defined below) may at any time suffer or
incur in connection with or relating to any Third Party Claim (defined below)
that arises out of or is based upon any untrue statement of any material fact
contained in any information or documents furnished by Guarantor, ALS
Holdings, the Alterra Lessees or their respective Affiliates pursuant to
Section 16 hereof or the Agreement Regarding Leases or any Property Lease, as
applicable, or arising out of, or which are based upon, the omission or
alleged omission to state therein a material fact required to be stated in
such information or necessary in order to make the statements in such
information not materially misleading. Any and all of such Losses shall become
part of the Guaranteed Obligations for which Guarantor is liable hereunder.
Any claim for indemnification under this Section 17 shall be subject to the
provisions and procedures set forth in this Section 17. Guarantor shall not
have any indemnification obligations under this Section 17 with respect to
financial statements delivered to PSLT-ALS Holdings following the date that
PSLT-ALS Holdings or PSLT-ALS Holdings' direct or indirect Parent no longer
separately includes, or incorporates by reference, Guarantor's financial
information in its public filings. PSLT-ALS Holdings and/or its direct or
indirect Parent will continue to separately include, or incorporate by
reference, Guarantor's financial statements in its public filings until such
time as PSLT-ALS Holdings' and/or its direct or indirect Parent's attorneys
and accountants reasonably determine that such separate inclusion or
incorporation by reference of Guarantor's financial information in its public
filings is no longer necessary.
17.2 Notification of Third Party Claims. (a) A Person that may be
entitled to be indemnified under this Section 17 (the "Indemnified Party"),
shall promptly notify the party or parties liable for such indemnification
(the "Indemnifying Party") in writing of any pending or
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threatened claim or demand by a third party, including any Governmental
Authority, that the Indemnified Party has determined has given or could
reasonably give rise to a right of indemnification under this Section 17
(including a pending or threatened claim or demand asserted by a third party,
including any Governmental Authority, against the Indemnified Party, such
claim being a "Third Party Claim"), describing in reasonable detail the facts
and circumstances with respect to the subject matter of such claim or demand;
provided, however, that the failure to provide such notice shall not release
the Indemnifying Party from any of its obligations under this Section 17
except to the extent the Indemnifying Party is actually prejudiced by such
failure.
(b) Upon receipt of a notice of a claim for indemnity from an Indemnified
Party pursuant to Section 17.2(a), and subject to Section 17.2(d), the
Indemnifying Party may, by notice to the Indemnified Party delivered within
ten (10) Business Days of the receipt of notice of such claim, assume the
defense and control of any Third Party Claim but shall allow the Indemnified
Party a reasonable opportunity to participate in the defense of such Third
Party Claim with its own counsel and at its own expense. The Indemnified Party
may take any actions reasonably necessary to defend such Third Party Claim
prior to the time that it receives a notice from the Indemnifying Party as
contemplated by the preceding sentence. The Indemnifying Party shall select
counsel, contractors and consultants of recognized standing and competence. To
the extent the principal remedy sought in any Third Party Claim is equitable
relief, the Indemnifying Party shall consult with the Indemnified Party as to
the selection of counsel to defend such Third Party Claim. Each Indemnified
Party, shall, and shall cause each of its Affiliates and Representatives to,
cooperate in good faith with the Indemnifying Party in the defense of any
Third Party Claim. The Indemnifying Party shall not be authorized to consent
to a settlement of, or the entry of any judgment arising from, any Third Party
Claim, without the consent of any Indemnified Party, provided that the
Indemnified Party shall not withhold its consent if such settlement or
judgment involves solely the payment of money without any finding or admission
of any violation of any Law (defined below) or admission of any wrongdoing and
the Indemnifying Party shall (i) pay or cause to be paid all amounts arising
out of such settlement or judgment concurrently with the effectiveness of such
settlement and (ii) obtain, as a condition of any settlement or judgment, a
complete and unconditional release of each relevant Indemnified Party from any
and all liability in respect of such Third Party Claim.
(c) If an Indemnified Party determines in good faith that it is
reasonably likely that a Third Party Claim would materially adversely affect
it other than as a result of monetary damages for which it would be entitled
to indemnification under this Agreement (including with respect to remediation
of any environmental matters), the Indemnified Party may, by notice to the
Indemnifying Party, assume the exclusive right to defend, compromise or settle
such Third Party Claim with its own counsel and at its own expense; provided,
however, that the Indemnifying Party will not be bound by any determination of
a Third Party Claim so defended or any compromise or settlement effected
without its written consent.
(d) Notwithstanding the foregoing, no Indemnifying Party shall have any
liability under this Section 17 for any Losses arising out of or relating to
any Third Party Claim that is settled or compromised by an Indemnified Party
without the consent of such Indemnifying Party (which consent shall not be
unreasonably withheld or delayed).
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17.3 Payment; Interest on Payment. If any Third Party Claim shall have
been finally determined (including if any Action (defined below) for
indemnification under this Section 17 shall have been finally determined), the
amount of such final determination shall be paid to the Indemnified Party, on
demand in immediately available funds. A Third Party Claim or Action and the
liability for and amount of Losses, shall be deemed to be "finally determined"
for purposes of this Section 17 when the parties to such Third Party Claim or
Action have so determined by mutual agreement or, if disputed, when a final
non-appealable Governmental Order (defined below) with respect thereto shall
have been entered. Any amounts not paid when due pursuant to this Section 17
shall bear interest from the date thereof until the date paid at a rate equal
to the rate publicly announced from time to time by Citibank, N.A. as its
prime or base rate. Nothing in this Section 17 shall operate to bar an
Indemnified Party from seeking and (where appropriate) obtaining interest on
any claim to the extent ordered by a court adjudicating any Action brought by
the Indemnified Party against an Indemnifying Party.
17.4 Additional Indemnification Provisions. (a) The parties hereto agree,
for themselves and on behalf of any of their respective Related Parties and
Representatives, that, with respect to each indemnification obligation in this
Section 17, (i) all Losses shall be net of any Eligible Insurance Proceeds (as
defined below) and (ii) in no event shall the Indemnifying Party have
liability to the Indemnified Party for any punitive, incidental, special,
indirect or consequential damages, except to the extent that the Indemnified
Party pays punitive, incidental, special, indirect or consequential damages to
a third party in respect of a Third Party Claim.
(b) Any amount payable by an Indemnifying Party pursuant to this
Section 17 shall be paid promptly and payment shall not be delayed pending any
determination of Eligible Insurance Proceeds or Retained Insurance Proceeds
(as defined below). In any case where an Indemnified Party recovers from a
third Person, any amount in respect of any Loss for which such Indemnified
Party has actually been reimbursed by an Indemnifying Party pursuant to this
Section 17 (other than Retained Insurance Proceeds), such Indemnified Party
shall promptly pay over to the Indemnifying Party the amount so recovered
(after deducting therefrom the amount of expenses incurred by it in procuring
such recovery), but not in excess of the sum of (i) any amount previously paid
by the Indemnifying Party to or on behalf of the Indemnified Party in respect
of such Loss and (ii) any amount expended by the Indemnifying Party in
pursuing or defending any claim arising out of such matter.
(c) All payments required to be made by an Indemnifying Party under
this Section 17 to any Indemnified Party shall be without set-off,
counterclaim or deduction of any kind.
(d) If any portion of Losses to be reimbursed by the Indemnifying
Party may be covered, in whole or in part, by third-party insurance coverage
(each, an "Insurance Policy"), the Indemnified Party shall promptly give
notice thereof to the Indemnifying Party (a "Notice of Insurance"). If the
Indemnifying Party so requests within 30 days after receipt of a Notice of
Insurance, the Indemnified Party shall use its commercially reasonable efforts
to collect the maximum amount of insurance proceeds thereunder, in which event
(i) all such proceeds actually received, net of costs reasonably incurred by
the Indemnified Party in seeking such collection, shall be considered
"Eligible Insurance Proceeds" and (ii) the Indemnifying Party shall reimburse
the Indemnified Party for all reasonable costs incurred in connection with
such
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collection and the amount of any prospective or retroactive increase in
premiums actually paid by the Indemnified Party under the Insurance Policy (as
such increased premiums are incurred) directly related to the payment of
Eligible Insurance Proceeds for such Loss for three years following the next
renewal of such Insurance Policy. If the Indemnifying Party does not request
that the Indemnified Party seek coverage of any portion of such Loss under the
Insurance Policy within 30 days after receipt of a Notice of Insurance, (i)
any proceeds that the Indemnified Party may receive thereunder shall be
considered "Retained Insurance Proceeds" and (ii) the Indemnifying Party shall
have no liability for any premium increases thereunder relating to the
collection of such Retained Insurance Proceeds.
(e) If the indemnification provided for in this Section 17 is
unavailable or insufficient to hold harmless an Indemnified Party, then each
Indemnifying Party shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses in such proportion as is
appropriate to reflect the relative fault of Guarantor, on the one hand, and
PSLT-ALS Holdings, on the other hand, in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue statement of a material fact or the
omission to state a material fact relates to information supplied by PSLT-ALS
Holdings, on the one hand, or by Guarantor, on the other hand, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission.
(f) Notwithstanding anything to the contrary in this Section 17, to
the extent that the Indemnified Party or an Affiliate realizes an actual Tax
(as defined below) benefit as a result of the event giving rise to the
indemnity payment hereunder (such as, by way of example but not limitation, a
Tax savings resulting from the payment of an indemnified amount that is
deductible by the Indemnified Party, in a case in which the indemnity payment
itself does not give rise to gross income for Tax purposes), the Indemnified
Party shall promptly rebate to the Indemnifying Party the amount of such Tax
benefit.
17.5 Mitigation of Losses. Each of the parties agrees to take all
reasonable steps to mitigate their respective Losses upon and after becoming
aware of any event or condition which would reasonably be expected to give
rise to any Losses that are indemnifiable hereunder. The Indemnifying Party
shall not be liable for Losses hereunder to the extent that such Losses
resulted solely from the Indemnified Party's failure to mitigate its Losses in
accordance with the preceding sentence.
17.6 No Recourse to Parent Entities. PSLT-ALS Holdings and its
existing and future Affiliates (collectively, the "Releasing Parties") do
hereby absolutely release and discharge each of (i) FEBC-ALT Investors LLC,
Emeritus Corporation, NW Select LLC, their respective existing and future
Affiliates (other than Guarantor and its Subsidiaries) and their respective
existing and future officers and directors and (ii) the existing and future
officers and directors of Guarantor and its Subsidiaries (collectively, the
"Releasees") from any and all Losses which any of the Releasing Parties ever
had or now has or have or hereafter can, shall or may have, for, upon or by
reason of any matter, cause or thing whatsoever to the extent arising from, in
connection with, related to or as a result of (a) the matters addressed in
this Section 17, and (b) any action or inaction of any of the Releasees
relating to or associated with the foregoing, in each case, relating to any
period from the beginning of the world to the end of time, regardless of
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when brought; provided, however, such release and discharge shall not release
or discharge (i) any Releasee from any Losses to the extent arising from, in
connection with, related to or as a result of any fraud, gross negligence or
willful misconduct by or on behalf of such Releasee, or (ii) Guarantor, ALS
Holdings, the Alterra Lessees or any of their respective successors and
assigns from their respective obligations under this Guaranty, the Agreement
Regarding Leases, the Property Leases, the Lease Guaranties (as defined in the
Property Leases) and any and all of the other documents or agreements entered
into with respect to any of the foregoing documents.
17.7 Definitions. For purposes of this Section 17, the following terms
shall have the meanings set forth below:
"Action" means any civil, criminal or administrative action, suit,
demand, claim, arbitration, hearing, litigation, dispute or other proceeding
or investigation by or before any Governmental Authority or arbitrator.
"Code" means the United States Internal Revenue Code of 1986, as
amended.
"Governmental Authority" means any United States federal, state or
local or any supra-national or non-U.S. government, political subdivision,
governmental, regulatory or administrative authority, instrumentality, agency,
body or commission, self-regulatory organization or any court, tribunal, or
judicial or arbitral body.
"Governmental Order" means any order, writ, judgment, injunction,
decree, stipulation, determination or award entered by or with any
Governmental Authority.
"Law" means any U.S. federal, state, local or non-U.S. statute, law,
ordinance, regulation, rule, code, order or other requirement or rule of law.
"Losses" means, without duplication, all losses, damages, costs,
expenses, liabilities, obligations and claims of any kind (including any
Action brought by any Governmental Authority or Person), including reasonable
attorneys' fees and costs of investigation.
"Representative" of a Person means the directors, officers,
stockholders, partners, members, employees, trustees, counsel, controlling
persons (if any), representatives and agents of such Person, and each of the
heirs, executors, successors and permitted assigns of any of the foregoing.
"Tax" or "Taxes" means (i) any federal, state, local or foreign net
income, gross income, gross receipts, windfall profit, severance, property,
production, sales, use, license, excise, franchise, employment, payroll,
withholding, alternative or add-on minimum, ad valorem, value-added, transfer
(including real estate transfer taxes), stamp, or environmental tax (including
taxes under Code Section 59A), or any other tax, custom, duty, governmental
fee or other like assessment or charge of any kind whatsoever, together with
any interest or penalty, addition to tax or additional amount imposed by any
Governmental Authority; and (ii) any liability of PSLT-ALS Holdings or any
Provident Lessor for the payment of amounts with respect to payments of a type
described in clause (i) as a result of being a member of an affiliated,
consolidated, combined or unitary group, or as a result of any obligation of
PSLT-ALS
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Holdings or any Provident Lessor under any Tax sharing arrangement or Tax
indemnity arrangement.
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Guarantor has caused this Guaranty to be effective as of the
Effective Date.
GUARANTOR:
ALTERRA HEALTHCARE CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer and Vice President
ACKNOWLEDGMENT
STATE OF _____________ )
) SS
COUNTY OF ___________ )
On this ___ day of October, 2004, before me, the undersigned
officer, personally appeared ____________________________, personally known to
me, or proved to me on the basis of satisfactory evidence, and who
acknowledged that he/she is the _________________ of ALTERRA HEALTHCARE
CORPORATION, a Delaware corporation, and that as such officer, being duly
authorized to do so pursuant to the company's bylaws or a resolution of its
board of directors, executed, subscribed and acknowledged the foregoing
instrument for the purposes therein contained, by signing the name of the
company by himself in his authorized capacity as such officer, as his free and
voluntary act and deed and the free and voluntary act and deed of the company.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
----------------------------
[NOTARIAL SEAL] Notary Public
My Commission Expires:
-----------------------------
