Exhibit 10.77
GUARANTY AND SURETYSHIP AGREEMENT
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THIS GUARANTY AND SURETYSHIP AGREEMENT (as modified and
supplemented and in effect from time to time, this "Guaranty") is executed and
delivered as of this day of November, 1997 by BROOKDALE LIVING COMMUNITIES OF
CONNECTICUT, INC., a Delaware corporation having an address of c/o Brookdale
Living Communities, Inc. at 00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000, Attention: Xxxx X. Xxxxxxx, Telefax Number (000) 000-0000 (the
"Guarantor"), in favor of NOMURA ASSET CAPITAL CORPORATION, a Delaware
corporation, with offices at 2 World Xxxxxxxxx Xxxxxx, Xxxxxxxx X, Xxx Xxxx, Xxx
Xxxx 00000-0000, Attention: Xxxxxxx X. Xxxxxxx, Telefax Number (000) 000-0000
(together with its successors and assigns, "Lender"), to secure certain
obligations of THE GABLES BUSINESS TRUST, a Delaware business trust, with an
address of c/o Wilmington Trust Company, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000-0000, Attention: Corporate Trust Administrator, Telefax Number
(000) 000-0000 (the "Borrower").
BACKGROUND
A. Lender is lending to Borrower Eighteen Million Five Hundred
Thousand Dollars ($18,500,000) (the "Loan"). The Loan is evidenced by a Loan
Agreement by and among Lender, Borrower, and Guarantor, dated as of the date
hereof (as modified and supplemented and in effect from time to time, the "Loan
Agreement"), a Promissory Note of even date herewith, and certain other
collateral documents, all dated of even date herewith. Capitalized terms when
used herein without definition shall have the same meaning as defined in the
Loan Agreement.
B. Borrower and Guarantor are entering into a certain operator
lease dated the date herewith (the "Operator Lease"), pursuant to which
Guarantor shall lease, manage and operate the Property.
C. In order to induce Lender to make the Loan, the Guarantor
has agreed to execute and deliver this Guaranty to Lender. As security for the
performance of its obligations under this Guaranty and under the Loan Agreement,
the Guarantor has executed that certain Leasehold Mortgage, Assignment of Rents,
Security Agreement and Fixture Filing of even date herewith (as modified and
supplemented and in effect from time to time, the "Leasehold Mortgage"),
pursuant to which the Guarantor has pledged to Lender the Collateral (as defined
in the Leasehold Mortgage), that certain Assignment of Leases and Rents of even
date herewith (as modified and supplemented and in effect from time to time, the
"Assignment of Leases") pursuant to which the Guarantor has pledged to Lender
the Leases and Rents (as defined in the Assignment of Leases). and that certain
Assignment of Agreements Affecting Real Estate of even date herewith (as
modified and supplemented and in effect from time to time, the
"Assignment") pursuant to which the Guarantor has pledged to Lender the
Additional Collateral (as defined in the Assignment).
AGREEMENTS
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In consideration of the premises recited above, and intending
to be legally bound hereby, the Guarantor, hereby agrees:
1. Obligations. The following guarantees and obligations
(together, the "Obligations") are undertaken by Guarantor:
(a) Guarantor hereby unconditionally, absolutely
and irrevocably guarantees and becomes surety to Lender for the prompt payment
of the entire amount of the Indebtedness in strict accordance with the terms of
the Loan Agreement. The obligations of Guarantor constitute a guarantee of
payment and not merely of collection, are absolute and unconditional under all
circumstances and shall not in any event be discharged, impaired, or otherwise
affected except by payment to Lender. Guarantor agrees that it will upon notice
from Lender that any Event of Default has occurred under the Note or under any
Loan Document, pay directly to Lender all of the then outstanding Indebtedness.
Guarantor further agrees that any payment required hereunder will be made to
Lender regardless of whether such sums have become due by reason of the maturity
of the Note, acceleration of the Indebtedness or otherwise. The proceeds of any
amounts paid pursuant to this Guaranty will be applied in such order and in such
manner as Lender may elect in its sole discretion.
(b) Lender shall have the right to require Guarantor to
pay, comply with and satisfy its obligations and liabilities under this Guaranty
and shall have the right to proceed immediately against Guarantor with respect
thereto, without being required to bring any proceeding or take any action of
any kind against Borrower or any other guarantor or any other person, entity or
property prior thereto, the liability of Guarantor hereunder being independent
of and separate from the liability of Borrower, any other guarantors and persons
and the availability of other collateral security for the Note and the Loan
Documents.
2. Cancellation. This Guaranty and all obligations and
liabilities of Guarantor hereunder will be cancelled when the Indebtedness has
been paid in full or has been totally defeased as provided in the Loan
Agreement; provided, however, that this Guaranty shall be reinstated and remain
in full force and effect for so long as such payment may be voided or rescinded
in bankruptcy proceedings as a preference or for any other reason.
3. Costs and Fees. Guarantor hereby agrees that if it does not
satisfy its obligations under this Guaranty in accordance with the terms hereof,
the same shall be considered an Event of Default hereunder and Lender shall have
the right, in addition to the other rights described in this Guaranty, to
collect from Guarantor all costs, fees and expenses (including reasonable
attorneys' fees) incurred by Lender in connection with the enforcement of this
Guaranty against Guarantor, as well as interest thereon at the Default Rate set
forth in the
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Note, from and after the date any Event of Default occurs and is continuing
through the date of payment.
4. Bankruptcy of Borrower or Guarantor. The obligations of
Guarantor under this Guaranty shall not be discharged, impaired or otherwise
affected by the insolvency, bankruptcy, liquidation, readjustment, composition,
dissolution or other similar proceeding involving or affecting Borrower or
Guarantor, proceedings affecting the ownership of any of the above through
merger, consolidation or otherwise, inconsistent orders in or claims by parties
to any such proceedings or other release of obligations by operation of law.
5. Agreements and Waivers. Guarantor hereby:
(a) agrees that its obligations hereunder shall not be
released or otherwise affected by any agreement, amendment, release, suspension,
compromise, forbearance, indulgence, waiver, extension, renewal, supplement or
modification of any of the Loan Documents, or any other obligations of Borrower
to Lender, provided, however, the Loan Documents may only be amended in
accordance with the terms of the Loan Agreement;
(b) consents that Lender may, without affecting the
liability of Guarantor under this Guaranty, (i) exchange, release or surrender
any property pledged by or on behalf of Borrower or any other guarantor of any
liabilities of Borrower to Lender, (ii) renew or change, with and subject to the
consent of Borrower and Operator, the terms of any of Borrower's liabilities to
Lender, or (iii) waive any of Lender's rights or remedies against Borrower or
any other guarantor of any obligations of Borrower;
(c) Intentionally omitted;
(d) agrees that its liability under this Guaranty shall be
in addition to that stated in any other guaranty that may be hereafter given by
the undersigned and shall not be reduced or affected by any payment made under
any such guaranty;
(e) agrees that any failure or delay by Lender to exercise
any right under this Guaranty or under any other guaranty or with respect to any
of the Loan Documents or otherwise with respect to the Indebtedness shall not be
construed as a waiver of the right to exercise the same or any other right
hereunder at any time and from time to time thereafter;
(f) Intentionally deleted;
(g) agrees that Lender shall have, as security for the
undertakings under this Guaranty, a lien upon, a security interest in and right
of set-off against the Collateral (as defined in the Leasehold Mortgage), the
Mortgaged Property (as defined in the Leasehold Mortgage) and the Additional
Collateral (as defined in the Assignment);
(h) agrees that Lender shall not, under any circumstances,
be required
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to exhaust remedies or proceed against Borrower, other sureties, parties, or any
other security for the Indebtedness before proceeding under this Guaranty
against the Guarantor;
(i) agrees that under no circumstances (other than total
defeasance of the Loan in accordance with the Loan Agreement or payment in full
of the Loan) shall it become subrogated to the claims or liens of Lender against
Borrower or any other guarantor and that all amounts due to Lender under the
Loan Documents shall have priority over any amounts, whether or not related to
the Loan Documents, payable now or hereafter from Borrower to Guarantor;
(j) agrees that the obligations undertaken in this
Guaranty shall not be affected by the lack of validity or enforceability of any
Loan Document, any change in the time, manner or place of payment or in any
other term in respect of any of the Indebtedness or any other amendment or
waiver or a consent to or any departure from the Loan Documents, provided,
however, any amendments to the Loan Documents shall be done in accordance with
the Loan Agreement;
(k) agrees it will neither take or cause to be taken any
action, or permit any inaction, which will violate or cause a default under any
of the Loan Documents;
(l) waives the right to marshalling of Borrower's assets
or any stay of execution and the benefit of all exemption laws, to the extent
permitted by law, other protection granted by law to guarantors, now or
hereafter in effect with respect to any action or proceeding brought by Lender
against it;
(m) agrees that no single exercise of the power to bring
any action or institute any proceeding shall be deemed to exhaust such power,
but such power shall continue undiminished and may be exercised from time to
time as often as Lender may elect until all of Guarantor's liabilities and
obligations hereunder have been satisfied;
(n) agrees that its liability under this Guaranty shall in
no way be released or otherwise affected by the commencement, existence or
completion of any proceeding against Borrower, any other guarantors or any other
person or entity or otherwise with respect to the collection of the
Indebtedness; and Lender shall be under no obligation to take any action and
shall not be liable for any action taken or any failure to take action or any
delay in taking action against Guarantor, Borrower or any other person or entity
or otherwise with respect to the Indebtedness;
(o) waives, to the maximum extent permitted by applicable
law, any notice of (i) Lender's intention to act in reliance of this Guaranty,
(ii) any presentment, demand, protest or notice of dishonor, nonpayment or other
default with respect to the Indebtedness other than as required under the Loan
Documents, if any, and (iii) the commencement or prosecution of any enforcement
proceeding against Borrower or any other guarantor or any other person or entity
with respect to the Indebtedness or otherwise;
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(p) represents and acknowledges that the indebtedness
evidenced by the Note is and will be of direct benefit, interest and advantage
to it; and
(q) irrevocably waives all claims of waiver, release,
surrender, alteration or compromise and all defenses, set-offs, counterclaims,
recoupments, reductions, limitations or impairments and any other available
defense at law or in equity.
6. Intentionally Omitted.
7. Governing Law. (a) This Guaranty was negotiated in New
York, and made by Guarantor and accepted by Lender in the State of New York,
which State the parties agree has a substantial relationship to the parties and
to the underlying transaction embodied hereby, and in all respects, including,
without limitation, matters of construction, validity and performance, this
Guaranty and the obligations arising hereunder shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
contracts made and performed in such State and any applicable law of the United
States of America. To the fullest extent permitted by law, Guarantor hereby
unconditionally and irrevocably waives any claim to assert that the law of any
other jurisdiction governs this Guaranty, and this Guaranty shall be governed by
and construed in accordance with the laws of the State of New York pursuant to
(S)5-1401 of the New York General Obligations Law.
(b) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST GUARANTOR
ARISING OUT OF OR RELATING TO THIS GUARANTY SHALL BE INSTITUTED IN ANY FEDERAL
OR STATE COURT IN NEW YORK, NEW YORK, PURSUANT TO (S)5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW AND GUARANTOR WAIVES ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING,
AND GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT
IN ANY SUIT, ACTION OR PROCEEDING. GUARANTOR DOES HEREBY DESIGNATE AND APPOINT
CT CORPORATION SYSTEMS, 0000 XXXXXXXX, XXX XXXX, XXX XXXX 00000, AS ITS
AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND ALL
PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY
FEDERAL OR STATE COURT AND AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT
SAID ADDRESS (OR AT SUCH OTHER OFFICE AS MAY BE DESIGNATED BY GUARANTOR FROM
TIME TO TIME IN ACCORDANCE WITH THE TERMS HEREOF) WITH A COPY TO GUARANTOR AT
ITS PRINCIPAL EXECUTIVE OFFICES, ATTENTION: GENERAL COUNSEL AND WRITTEN NOTICE
OF SAID SERVICE OF GUARANTOR MAILED OR DELIVERED TO GUARANTOR IN THE MANNER
PROVIDED HEREIN SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS
UPON GUARANTOR, IN ANY SUCH SUIT, ACTION OR PROCEEDING. GUARANTOR (I) SHALL GIVE
PROMPT NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT
HEREUNDER, (II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE
AUTHORIZED AGENT
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(WHICH OFFICE SHALL BE DESIGNATED AS THE ADDRESS FOR SERVICE OF PROCESS), AND
(III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES
TO HAVE AN OFFICE OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.
8. Modification, Waiver in Writing. No modification,
amendment, extension, discharge, termination or waiver of any provision of this
Guaranty, or consent to any departure by the Guarantor therefrom, shall in any
event be effective unless the same shall be in a writing signed by Guarantor and
Lender, and then such waiver or consent shall be effective only in the specific
instance, and for the purpose, for which given. Except as otherwise expressly
provided herein, no notice to or demand on the Guarantor shall entitle the
Guarantor to any other or future notice or demand in the same, similar or other
circumstances.
9. Delay Not a Waiver. Neither any failure nor any delay on
the part of Lender in insisting upon strict performance of any term, condition,
covenant or agreement, or exercising any right, power, remedy or privilege
hereunder, or any other instrument given as security therefor, shall operate as
or constitute a waiver thereof, nor shall a single or partial exercise thereof
preclude any other future exercise, or the exercise of any other right, power,
remedy or privilege.
10. Notices. All notices, requests, demands, directions and
other communications which may or are required to be given, served or sent by
the Guarantor or the Lender to the other shall be given, served or sent as
provided in the Loan Agreement and shall be effective in accordance with the
terms of the Loan Agreement provided that notices to Guarantor shall be sent to
the address set forth for the Guarantor in the first paragraph of this Guaranty
with copies delivered concurrently to each of the following: Brookdale Living
Communities of Connecticut, Inc., 00 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxxx X. Xxxxxxxx, Xx., Telefax Number (000) 000-0000; Brookdale
Living Communities of Connecticut, Inc., 00 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx
00000, Attention: Xxxxxx X. Xxxxxx, Esquire, Telefax Number (000) 000-0000; and
Xxxxx X. Xxxxxxxxxx, III, Esquire, Murtha, Cullina, Xxxxxxx and Xxxxxx, 000
Xxxxxx Xxxxxx, XxxxXxxxx X, Xxxxxxxx, Xxxxxxxxxxx 00000, Telefax Number (860)
240-6150.
11. TRIAL BY JURY. THE GUARANTOR AND LENDER, TO THE FULLEST
EXTENT THAT THEY MAY LAWFULLY DO SO, HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR
PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANY TORT ACTION, BROUGHT BY ANY PARTY
HERETO WITH RESPECT TO THIS GUARANTY.
12. Headings. The Section headings in this Guaranty are
included herein for convenience of reference only and shall not constitute a
part of this Guaranty for any other purpose.
13. Assignment. Lender shall have the right to assign in whole
or in part this
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Guaranty and the obligations hereunder to any Person, including, without
limitation, to a trustee or servicer before or after a Securitization.
14. Severability. Wherever possible, each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
15. Waiver of Counterclaim. Guarantor hereby waives the right
to assert a counterclaim, other than compulsory counterclaim, in any action or
proceeding brought against it by Lender or its agents.
16. Exculpation. This Guaranty is and shall be subject to the
exculpation provisions of Section 8.14 of the Loan Agreement.
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IN WITNESS WHEREOF, Guarantor has executed and delivered this
Guaranty the date first written above.
BROOKDALE LIVING COMMUNITIES OF
CONNECTICUT, INC., a Delaware corporation
By:
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Name:
Title:
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