GUARANTY OF COMPLETION
made by
BROOKDALE LIVING COMMUNITIES, INC.
as guarantor,
in favor of
NOMURA ASSET CAPITAL CORPORATION
Dated as of June __, 1998
GUARANTY OF COMPLETION
This GUARANTY OF COMPLETION (this "Guaranty"), dated as of June __,
1998, made by BROOKDALE LIVING COMMUNITIES, INC. , a Delaware corporation,
having an office at 00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000
("Guarantor"), in favor of NOMURA ASSET CAPITAL CORPORATION, a Delaware
corporation, having an office at Two World Financial Center, Building B, New
York, New York 10281 (together with its successors and assigns, "Lender").
R E C I T A L S:
A. Pursuant to that certain Loan Agreement dated as of the date
hereof (as the same may be amended, modified, supplemented or replaced from time
to time, the "Loan Agreement") by and among AH Texas Owner Limited Partnership,
an Ohio limited partnership ("Borrower"), BLC of Texas-II, L.P., a Delaware
limited partnership ("Manager"), and Lender, and also pursuant to that certain
Building Loan Agreement dated as of the date hereof between Borrower, Manager
and Lender (as the same may be amended, modified, supplemented or replaced from
time to time, the "Building Loan Agreement", and collectively with the Loan
Agreement, sometimes hereinafter referred to as the "Loan Agreements"), Lender
has agreed to make a loan (the "Loan") to Borrower in a maximum aggregate
principal amount of $24,250,000, subject to the terms and conditions of the Loan
Agreements;
B. As a condition to Xxxxxx's making the Loan, Xxxxxx is requiring
that Guarantor execute and deliver to Lender this Guaranty; and
C. Guarantor hereby acknowledges that Guarantor will
materially benefit from
Xxxxxx's agreeing to make the Loan;
NOW, THEREFORE, in consideration of the premises set forth herein and
as an inducement for and in consideration of the agreement of Lender to make the
Loan pursuant to the Loan Agreements, Guarantor hereby agrees, covenants,
represents and warrants to Lender as follows:
1. Definitions.
(a) All capitalized terms used and not defined herein shall have
the respective meanings given such terms in the Loan Agreements.
(b) The term "including" means including without limitation.
(c) "Guaranty Termination Date" means the date on which
Substantial Completion has occurred and all costs, expenses and liabilities
incurred in connection therewith (including, without limitation, for labor,
materials and services)
have been paid in full (except to
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the extent to be paid for from Retainage or other sums are then held or reserved
by Lender but not yet disbursed in accordance with the Building Loan Agreement).
2. Guaranty.
(a) Subject to Section 3 below, Guarantor hereby irrevocably,
absolutely and unconditionally guarantees to Lender the prompt and complete
observance, fulfillment and performance of all of the obligations of Borrower
and Manager under or pursuant to the Building Loan Agreement solely with respect
to (i) the construction of the Required Improvements, including, the obligations
of Borrower to construct, equip and complete the Required Improvements in
accordance with Section 7.1 of the Building Loan Agreement; and (ii) the payment
when due of all Costs in accordance with the Building Loan Agreement. The
obligations which are the subject of the guaranty referred to in this Section
2(a) are hereinafter collectively referred to as the "Guarantied Obligations".
(b) Subject to Section 3 below, without limiting the generality
of the provisions of Section 2(a), Guarantor hereby irrevocably, absolutely and
unconditionally guarantees to Lender that Borrower and Manager shall, in
accordance with the terms of the Building Loan Agreement, fully and punctually
pay and discharge (i) any and all costs, expenses and liabilities for or
incurred in connection with the Guarantied Obligations; (ii) all claims and
demands for labor, materials and services used or incurred in connection with
the Guarantied Obligations which are or may become due and payable, or, if
unpaid, are or may become Liens on the Property or any part thereof; and (iii)
any Liens in favor of any and all Persons furnishing materials, labor or
services for or in connection with the Guarantied Obligations such that the
Property shall be and remain free and clear of any and all liens other than
Permitted Encumbrances, subject, however, to Xxxxxxxx's and Manager's rights, if
any, set forth in the Building Loan Agreement with regard to the contesting of
Liens.
(c) If either Borrower or Manager does not perform the
Guarantied Obligations as provided in paragraphs (a) and (b) of this Section 2,
then upon receipt of demand
from Lender:
(i) subject to Section 3 hereof, Guarantor shall, if
requested by Lender (which request Lender may make or not make in its sole
discretion), perform and complete the Guarantied Obligations or cause the
Guarantied Obligations to be performed and completed, in accordance with
the requirements of the Building Loan Agreement; and
(ii) if Guarantor fails to perform the Guarantied Obligations
in accordance with this Guaranty (whether or not requested to do so
pursuant to subsection (c)(i) above) then, to the extent that Lender shall
(A) cause any Guarantied Obligations to be performed, (B) pay any costs,
expenses or liabilities in connection with the Guarantied Obligations, or
(c) cause any Lien, claim or demand to be released or paid or bonded,
Guarantor shall, upon demand by Xxxxxx, reimburse Lender for all sums paid
and all costs, expenses or liabilities incurred by Lender in connection
therewith. All such sums shall be
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payable by Guarantor to Lender on demand and without
reduction for any offset, claim,
counterclaim or defense.
(d) Guarantor hereby agrees to indemnify, defend and save
harmless Lender from and against any and all costs, losses, liabilities, claims,
causes of action, expenses and damages, including, without limitation,
reasonable attorneys' fees and disbursements, which Lender may suffer or which
otherwise may arise by reason of Borrower's or Manager's failure to fulfill its
obligations under the Building Loan Agreement with respect to the Guarantied
Obligations, irrespective of whether such costs, losses, liabilities, claims,
causes of action, expenses or damages are incurred by Lender prior or subsequent
to (i) Xxxxxx's declaring the principal, Interest and other sums evidenced or
secured by the Loan Documents to be due and payable, (ii) the commencement or
completion of a judicial or non-judicial foreclosure of the Mortgage or (iii)
the conveyance of all or any portion of the Property by deed-in-lieu of
foreclosure.
(e) Guarantor hereby agrees that, notwithstanding any provisions
to the contrary in any Loan Document limiting the recourse of Lender to property
encumbered by the Security Documents, or limiting the rights of Lender to obtain
a deficiency judgment against Borrower, any Borrower Owner, Manager, or any
Manager Owner, Guarantor shall be fully and personally liable with respect to
the covenants, representations, warranties, guaranties, agreements and
indemnities of Guarantor under this Guaranty.
(f) Notwithstanding anything to the contrary contained herein or
in any other Loan Documents, and subject to the provisions of Section 6(i), all
of Guarantor's obligations under this Guaranty (including the Guarantied
Obligations hereunder) shall terminate on the Guaranty Termination Date,
provided that Guarantor's obligations under clauses (ii) and (iii) of Section
2(b) above relating to labor, materials and services provided, furnished or
performed at or to the Property shall continue with respect to any claims,
demands and Xxxxx referred to therein, whether asserted before or after the
Guaranty Termination Date.
3. Guarantor's Use of Loan Proceeds. If Lender requires Guarantor to
complete or cause the completion of the Guarantied Obligations as provided in
clause (i) of Section 2(c) hereof, provided Guarantor is proceeding in good
faith and with due diligence to so complete the Guarantied Obligations, and
provided that no Default beyond any applicable grace period shall have occurred
and be continuing under this Guaranty, Lender shall advance the proceeds of the
Initial Loan in accordance with, and upon Guarantor's compliance with the terms
of, the Building Loan Agreement, as such terms apply to the Guaranteed
Obligations, in the same manner as though Guarantor were Borrower or Manager
thereunder, but subject to the prior right of any applicable bonding company to
such proceeds.
4. Representations and Warranties. Guarantor hereby represents and
warrants to Lender as follows (which representations and warranties shall be
given as of the date hereof and shall survive the execution and delivery of this
Guaranty):
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(a) Organization, Authority and Execution. Guarantor is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, and has all necessary power and authority to own its
properties and to conduct its business as presently conducted or proposed to be
conducted and to enter into and perform this Guaranty and all other agreements
and instruments to be executed by it in connection herewith. This Guaranty has
been duly executed and delivered by Guarantor.
(b) Enforceability. This Guaranty constitutes a legal, valid and
binding obligation of Guarantor, enforceable against Guarantor in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally.
(c) No Violation. The execution, delivery and performance by
Guarantor of the Guarantied Obligations has been duly authorized by all
necessary action, and do not and will not violate any law, regulation, order,
writ, injunction or decree of any court or governmental body, agency or other
instrumentality applicable to Guarantor in effect on the date hereof, or result
in a breach of any of the terms, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of any mortgage, Lien,
charge or encumbrance of any nature whatsoever upon any of the assets of
Guarantor pursuant to the terms of Guarantor's certificate of incorporation or
by-laws, or any mortgage, indenture, agreement or instrument to which Guarantor
is a party or by which it or any of its properties is bound. Guarantor is not in
default under any other guaranty which it has provided to Lender.
(d) No Litigation. There are no actions, suits or proceedings at
law or at equity, pending or, to Guarantor's best knowledge, threatened against
or affecting Guarantor or which involve the validity or enforceability of this
Guaranty or with respect to which an adverse decision would materially adversely
affect the financial condition of Guarantor or the ability of Guarantor to
perform any of the Guarantied Obligations. Guarantor is not in default beyond
any applicable grace or cure period with respect to any order, writ, injunction,
decree or demand of any Governmental Authority which would materially adversely
affect the financial condition of Guarantor or the ability of Guarantor to
perform any of its obligations under this Guaranty.
(e) Consents. All consents, approvals, orders or authorizations
of, or registrations, declarations or filings with, all Governmental Authorities
(collectively, the "Consents") that are required in connection with the valid
execution, delivery and performance by Guarantor of this Guaranty have been
obtained or will be obtained when required.
(f) Financial Statements and Other Information. All financial
statements of Guarantor heretofore delivered to Lender are true and correct in
all material respects and fairly present the financial condition of Guarantor as
of the respective dates thereof, and no materially adverse change has occurred
in the financial conditions reflected therein since the respective dates
thereof. None of the aforesaid financial statements or any certificate or
statement furnished to Lender by or on behalf of Guarantor in connection with
the transactions contemplated hereby, and none of the representations and
warranties in this Guaranty contains any untrue statement of a
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material fact or omits to state a material fact necessary in order to make the
statements contained therein or herein not misleading. Guarantor is not
insolvent within the meaning of the United States Bankruptcy Code or any other
in any material respect applicable law, code or regulation, and the execution,
delivery and performance of this Guaranty will not render Guarantor insolvent.
(g) Consideration. Guarantor is receiving fair consideration in
return for giving this Guaranty.
5. Financial Statements. Guarantor shall deliver to Lender, (a)
within one hundred twenty (120) days after the end of each fiscal year of
Guarantor, a complete copy of Guarantor's annual financial statements audited by
a "big six" accounting firm or another independent certified public accountant
reasonably acceptable to Lender, (b) within forty-five (45) days after the end
of each fiscal quarter of Guarantor, financial statements (including a balance
sheet as of the end of such fiscal quarter and a statement of income and expense
for such fiscal quarter) certified by the Chief Financial Officer or President
of Guarantor and in form, content, level of detail and scope reasonably
satisfactory to Lender, and (c) thirty (30) days after request by Xxxxxx, such
other financial information with respect to Guarantor as Lender may reasonably
request. Guarantor's obligation to deliver this information to Lender shall
terminate on the Guaranty Termination Date.
6. Unconditional Character of Obligations of Guarantor.
(a) Subject to Section 3 above, the obligations of Guarantor
hereunder shall be irrevocable, absolute and unconditional, irrespective of the
validity, regularity or enforceability, in whole or in part, of the other Loan
Documents or any provision thereof, or the absence of any action to enforce the
same, any waiver or consent with respect to any provision thereof, the recovery
of any judgment against Borrower, Manager, Guarantor or any other Person or any
action to enforce the same, any failure or delay in the enforcement of the
obligations of Borrower or Manager under the other Loan Documents or Guarantor
under this Guaranty, or any setoff, counterclaim, and irrespective of any other
circumstances which might otherwise limit recourse against Guarantor by Lender
or constitute a legal or equitable discharge or defense of a guarantor or
surety. Lender may enforce the obligations of Guarantor under this Guaranty by a
proceeding at law, in equity or otherwise, independent of any foreclosure or
similar proceeding or any deficiency action against Borrower, Manager, or any
other Person at any time, either before or after an action against the Property
or any part thereof, Borrower, Manager, or any other Person. This Guaranty is a
guaranty of payment and performance and not a guaranty of collection. Except as
otherwise provided herein or in any of the other Loan Documents or the
Intercreditor Agreement, and to the extent permitted by law, Guarantor waives
diligence, notice of acceptance of this Guaranty, filing of claims with any
court, any proceeding to enforce any provision of any other Loan Document,
against Guarantor, Borrower, Manager, or any other Person, any right to require
a proceeding first against Borrower, Manager or any other Person, or to exhaust
any security (including, without limitation, the Property) for the performance
of the Guarantied Obligations or any other obligations of Borrower, Manager or
any other Person, or any protest, presentment, notice of default or other notice
or demand whatsoever (except to the extent expressly provided to the
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contrary in this Guaranty or elsewhere in the Loan Documents), and Guarantor
hereby covenants and agrees that Guarantor shall not be discharged of its
obligations hereunder except as set forth in
Section 2(f) above.
(b) The Guarantied Obligations, and the rights of Lender to
enforce the same by proceedings, whether by action at law, suit in equity or
otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation,
reorganization, readjustment, composition, dissolution, receivership,
conservatorship, winding up or other similar proceeding involving or
affecting Borrower, Manager, the Property or any part thereof, Guarantor
or any other Person;
(ii) any failure by Xxxxxx (except, however, a failure by
Xxxxxx to fund advances in accordance with Section 3 hereof) or any other
Person, whether or not without fault on its part, to perform or comply
with any of the terms of either Loan Agreement, or any other Loan
Documents, or any document or instrument relating thereto;
(iii) the sale, transfer or conveyance of the Property or any
interest therein to any Person, whether now or hereafter having or
acquiring an interest in the Property or any interest therein and whether
or not pursuant to any foreclosure, trustee sale or similar proceeding
against Borrower, Manager, or the Property or any interest therein;
(iv) the conveyance to Lender, any Affiliate of Lender or
Xxxxxx's nominee of the Property or any interest therein by a
deed-in-lieu of foreclosure;
(v) the release of Borrower, Manager, or any other Person
from the performance or observance of any of the agreements, covenants,
terms or conditions contained in any of the Loan Documents by operation of
law or otherwise; or
(vi) the release in whole or in part of any security for the
Guarantied Obligations or the Loan, including the Property and the
Collateral.
(c) Except as otherwise specifically provided in this Guaranty,
Guarantor hereby expressly and irrevocably waives all defenses in an action
brought by Xxxxxx to enforce this Guaranty based on claims of waiver, release,
surrender, alteration, compromise or equitable discharge and all setoffs,
reductions, or impairments, whether arising hereunder or otherwise.
(d) Subject to the Intercreditor Agreement, Lender may deal with
Borrower, Manager, and Affiliates of Borrower or Manager in the same manner and
as freely as if this Guaranty did not exist and shall be entitled, among other
things, to grant Borrower, Manager or any other Person such extension or
extensions of time to perform any act or acts as may be deemed advisable by
Xxxxxx, at any time and from time to time, without terminating, affecting or
impairing the validity of this Guaranty or the Guarantied Obligations.
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(e) No compromise, alteration, amendment, modification,
extension, indulgence, renewal, release or other change of, or waiver,
suspension, consent, compromise, delay, omission, failure to act, forbearance or
other action with respect to, any liability or obligation under or with respect
to, or of any of the terms, covenants or conditions of, the Loan Documents or
any amendment, modification or other change of the Plans or any legal
requirement shall in any way alter, impair or affect any of the Guarantied
Obligations or Xxxxxx's rights hereunder, and Guarantor agrees that if any Loan
Document or the Plans are modified with Xxxxxx's consent, the Guarantied
Obligations shall automatically be deemed modified to include such modifications
without the necessity of notice to Guarantor except as may otherwise be required
under the Loan Agreement.
(f) Lender may proceed to protect and enforce any or all of its
rights under this Guaranty by suit in equity or action at law, whether for the
specific performance of any covenants or agreements contained in this Guaranty
or otherwise, or to take any action authorized or permitted under applicable
law, and shall be entitled to require and enforce the performance of all acts
and things required to be performed hereunder by Guarantor. Each and every
remedy of Lender shall, to the extent permitted by law, be cumulative and shall
be in addition to any other remedy given hereunder or now or hereafter existing
at law or in equity. No single exercise of Xxxxxx's power to bring any action or
institute any proceeding shall be deemed to exhaust such power, but such power
shall continue undiminished and may be exercised from time to time as often as
Lender may elect until the earlier of the Guaranty Termination Date or the date
that all the Guarantied Obligations have been satisfied. 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, Manager, or any other Person or otherwise with respect to the
Guarantied Obligations.
(g) No waiver shall be deemed to have been made by Lender of any
rights hereunder unless the same shall be in writing and signed by Xxxxxx, and
any such waiver shall be a waiver only with respect to the specific matter
involved and shall in no way impair the rights of Lender or the obligations of
Guarantor to Lender in any other respect or at any other time.
(h) At the option of Lender, Guarantor may be joined in any
action or proceeding commenced by Lender against Borrower or Manager in
connection with or based upon any other Loan Documents and recovery may be had
against Guarantor in such action or proceeding or in any independent action or
proceeding against Guarantor only to the extent of Guarantor's liability
hereunder, without any requirement that Lender first assert, prosecute or
exhaust any remedy or claim against Borrower, Manager or any other Person, or
any security for the obligations of Borrower, Manager, or any other Person.
(i) Guarantor agrees that this Guaranty shall continue to be
effective or shall be reinstated, as the case may be, if at any time any payment
is made by Borrower, Manager or Guarantor to Lender and such payment is
rescinded or must otherwise be returned by Lender (as determined by Xxxxxx in
its sole and absolute discretion) upon insolvency, bankruptcy, liquidation,
reorganization, readjustment, composition, dissolution, receivership,
conservatorship, winding up
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or other similar proceeding involving or affecting Borrower, Manager, or
Guarantor, all as though such payment had not been made.
(j) In the event that Guarantor shall advance or become
obligated to pay any sums under this Guaranty or in connection with the
Guarantied Obligations or if Borrower, Manager, or any subsequent owner of the
Property or any part thereof is now, or shall hereafter become, indebted to
Guarantor, Guarantor agrees that (i) the amount of such sums and of such
indebtedness and all interest thereon shall at all times be subordinate as to
lien, the time of payment and in all other respects to all sums, including
principal and interest and other amounts, at any time owed to Lender under the
Loan Documents, and (ii) Guarantor shall not be entitled to enforce or receive
payment thereof until all principal, Interest and other sums due pursuant to the
Loan Documents have been paid in full. Nothing herein contained is intended or
shall be construed to give Guarantor any right of subrogation in or under the
Loan Documents or any right to participate in any way therein, or in the right,
title or interest of Lender in or to any collateral for the Loan,
notwithstanding any payments made by Guarantor under this Guaranty, until the
actual and irrevocable receipt by Lender of payment in full of all Principal,
Interest and other sums due with respect to the Loan or otherwise payable under
the Loan Documents.
For so long as the Loan is outstanding, Guarantor hereby expressly waives
any and all of said rights of subrogation, reimbursement, indemnity and
recourse. Guarantor shall not be deemed a "creditor" of the Borrower with
respect to the Guarantied Obligations as said term "creditor" is defined in the
United States Bankruptcy Code, as amended. If any amount shall be paid to
Guarantor on account of such subrogation rights at any time when any such sums
due and owing to Lender shall not have been fully paid, such amount shall be
paid by Guarantor to Lender for credit and application against such sums due and
owing to Lender. Notwithstanding the foregoing, Guarantor shall have the right
to be reimbursed by Borrower for any of Guarantor's out-of-pocket costs or fees
pursuant to the Management Agreement or the Development Agreement provided there
is no Event of Default.
(k) Subject to Section 2(f) hereof, the Guarantied Obligations shall
survive a foreclosure, deed-in-lieu of foreclosure or similar proceeding
involving the Property and the exercise by Lender of any of all of its remedies
pursuant to the Loan Documents.
7. Covenant. Guarantor shall perform and observe the financial
covenants, terms and provisions of Section 6 of the Guaranty of Payment from
Guarantor to Lender dated the date hereof, which Section 6 is hereby
incorporated by reference
herein.
8. Entire Agreement/Amendments. This instrument represents the entire
agreement between the parties with respect to the subject matter hereof. The
terms of this Guaranty shall not be waived, altered, modified, amended,
supplemented or terminated in any manner whatsoever except by written instrument
signed by Xxxxxx and Guarantor.
9. Successors and Assigns. This Guaranty shall be binding upon
Guarantor, and Guarantor's successors and assigns, may not be assigned or
delegated by Guarantor and shall inure to the benefit of Lender and its
successors and assigns.
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10. Applicable Law and Consent to Jurisdiction. This Guaranty was
partially negotiated in the State of New York, and accepted by Xxxxxx in the
State of New York, which State the parties agree has a substantial relationship
to the parties and to the underlying transaction embodied hereby, and in all
respects, this Guaranty shall be governed by, and construed in accordance with,
the substantive laws of the State of New York. Guarantor irrevocably (a) agrees
that any suit, action or other legal proceeding arising out of or relating to
this Guaranty may be brought in a court of record in the City and County of New
York or in the Courts of the United States of America located in the Southern
District of New York, (b) consents to the jurisdiction of each such court in any
such suit, action or proceeding and (c) waives any objection which it may have
to the laying of venue of any such suit, action or proceeding in any of such
courts and any claim that any such suit, action or proceeding has been brought
in an inconvenient forum. Guarantor irrevocably consents to the service of any
and all process in any such suit, action or proceeding by service of copies of
such process to Guarantor at its address provided in Section 15 hereof. Nothing
in this Section 10, however, shall affect the right of Lender to serve legal
process in any other manner permitted by law or affect the right of Lender to
bring any suit, action or proceeding against Guarantor or its property in the
courts of any other jurisdictions.
11. Section Headings. The headings of the sections and paragraphs of
this Guaranty have been inserted for convenience of reference only and shall in
no way define, modify, limit or amplify any of the terms or provisions hereof.
12. Severability. Any provision of this Guaranty which may be
determined by any competent authority to be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, Guarantor hereby
waives any provision of law which renders any provision hereof prohibited or
unenforceable in any respect.
13. WAIVER OF TRIAL BY JURY. XXXXXXXXX AND XXXXXX XXXXXX AGREE NOT TO ELECT
A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVE ANY RIGHT TO
TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER
EXIST WITH REGARD TO THIS GUARANTY, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION
ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN
KNOWINGLY AND VOLUNTARILY BY XXXXXXXXX AND XXXXXX, AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY
JURY WOULD OTHERWISE ACCRUE. EACH PARTY IS HEREBY AUTHORIZED TO FILE A COPY OF
THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY THE
OTHER.
14. Other Guaranties. The obligations of Guarantor hereunder are separate
and distinct from, and in addition to, the obligations of Guarantor now or
hereafter arising under one or
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more other guaranties, pursuant to which Guarantor has guaranteed the payment
and performance of certain other obligations of Xxxxxxxx described therein.
15. Notices. All notices, demands, requests, consents, approvals or
other communications (collectively called "Notices") required or permitted to be
given hereunder to Lender or Guarantor or which are given to Lender or Guarantor
with respect to this Guaranty shall be in writing and shall be (a) sent by
United States registered or certified mail, return receipt requested, postage
prepaid, addressed as set forth below, (b) sent by a national overnight courier
or delivery service or (c) personally delivered with receipt acknowledged to
such address, or in either case, to such other address(es) as the party in
question shall have specified most recently by like Notice.
If to Lender, to:
Nomura Asset Capital Corporation
2 World Financial Center, Building B
New York, New York 10281
Attn: Xxxxx Xxxx and Xxxxxx XxXxxx
with a copy to:
Dechert Price & Xxxxxx
00 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attn: Xxxx X. Xxxxxxxx, Esq.
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If to Guarantor, to:
Brookdale Living Communities, Inc.
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Xx.
with a copy to:
Brookdale Living Communities, Inc.
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
with a copy to:
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq.
Notices which are given in the manner aforesaid shall be deemed to have been
given or served for all purposes hereunder (i) on the date on which such notice
shall have been personally delivered as aforesaid, (ii) on the date of delivery
by overnight carrier or mail as evidenced by the return receipt therefor, or
(iii) on the date of failure to deliver by reason of refusal to accept delivery
or changed address of which no Notice was given.
16. Guarantor's Receipt of Loan Documents. Guarantor by its execution
hereof acknowledges receipt of true copies of all of the Loan Documents.
17. Interest; Expenses.
(a) If Guarantor fails to pay all or any sums due hereunder upon
demand by Xxxxxx, the amount of such sums payable by Guarantor to Lender shall
bear interest from the date of demand until paid at the Default Rate in effect
from time to time.
(b) Guarantor hereby agrees to pay all costs, charges and
expenses, including, without limitation, reasonable attorneys' fees and
disbursements, that may be incurred by Xxxxxx in enforcing the covenants,
agreements, obligations and liabilities of Guarantor under this Guaranty.
18. Intentionally deleted.
19. Intentionally deleted.
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20. Incorporation by Reference. Unless specifically provided otherwise
herein, the rules of construction and other applicable provisions of Article X
of the Loan Agreement and Article IX of the Building Loan Agreement shall be
incorporated by reference into this Guaranty.
21. Waiver of One Action Rule; Cross Collateralization. (a) The Loan
has been made by Lender pursuant to the Master Financing Facility Agreement. The
Master Financing Facility Agreement contemplates that one or more Other Loans
made to Other Borrowers pursuant to the Master Financing Facility Agreement
will, at Lender's election, be cross collateralized and cross defaulted with the
Loan and with each other subject to the limitations set forth in (b) below. In
such event, such Other Loans will be secured by the Property and the Collateral,
and the Loan will be secured by the Other Properties and Other Collateral
serving as primary security for such Other Loans, subject to the limitations set
forth in (b) below.
(b) Without limitation to any other right or remedy provided to
Lender in the Loan Agreements or this Guaranty or any of the other Loan
Documents, Guarantor covenants and agrees that upon the occurrence of an Event
of Default and during the continuance thereof (i) Lender shall have the right to
pursue all of its rights and remedies with respect to the Loan or the Other
Loans in one proceeding, or separately and independently in separate proceedings
which it, as Lender, in its discretion, shall determine from time to time, (ii)
Lender is not required to either xxxxxxxx assets, sell the Property, the
Collateral, or any Other Property, or to enforce or realize upon any Other
Non-Recourse Guaranty, in any inverse order of alienation, or be subjected to
any "one action" or "election of remedies" law or rule, and (iii) the exercise
by Lender of any remedies against the Property, the Collateral, any Other
Property, or any Other Non-Recourse Guaranty will not impede Lender from
subsequently or simultaneously exercising remedies against the Property, the
Collateral, any Other Property, or any Other Non-Recourse Guaranty
(c) Intentionally deleted.
(d) It is understood and agreed by the parties hereto that upon
the satisfaction, termination, or expiration of the Guarantied Obligations, no
subsequent default under the Other Loans shall operate to revive or otherwise
reinstate the Guaranty, other than as specifically set forth in Section 6(i)
herein.
22. No Usury. Guarantor and Lender intend at all times to comply with
applicable state law or applicable United States federal law (to the extent that
it permits Lender to contract for, charge, take, reserve or receive a greater
amount of interest than under state law). If the applicable law (state or
federal) is ever judicially interpreted so as to render usurious any amount
called for under this Guaranty, or contracted for, charged, taken, reserved or
received with respect to the Guarantied Obligations, or if Xxxxxx's exercise of
the option to accelerate the maturity of the Guarantied Obligations or any
prepayment by Guarantor results in Guarantor having paid any interest in excess
of that permitted by applicable law, then it is Guarantor's and Xxxxxx's express
intent that all excess amounts theretofore collected by Xxxxxx shall be credited
against the unpaid Guarantied Obligations (or, if the Guarantied Obligations
have been or would thereby be paid in full, refunded to Guarantor), and the
provisions of the Guaranty immediately be deemed reformed
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and the amounts thereafter collectible thereunder reduced, without the necessity
of the execution of any new document, so as to comply with the applicable law,
but so as to permit the recovery of the fullest amount otherwise called for
thereunder. All sums paid or agreed to be paid to Lender for the use,
forbearance or detention of the Guaranty shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread throughout the
full stated term of the Guaranty until payment in full so that the rate or
amount of interest on account of the Guarantied Obligations does not exceed the
maximum lawful rate from time to time in effect and applicable to the Guarantied
Obligations for so long as the Guarantied Obligations are outstanding.
Notwithstanding anything to the contrary contained in this Guaranty, it is not
the intention of Lender to accelerate the maturity of any interest that has not
accrued at the time of such acceleration or to collect unearned interest at the
time of such acceleration.
[Remainder of page intentionally left blank; signature page
follows.]
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IN WITNESS WHEREOF, Xxxxxxxxx has executed this Guaranty as of the
date first above written.
BROOKDALE LIVING COMMUNITIES,
INC.,
a Delaware Corporation
By:
Xxxxxx X. Xxxxxxxx, Xx.
Executive Vice President
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AGREED AND ACKNOWLEDGED
ONLY FOR SECTION 13
NOMURA ASSET CAPITAL CORPORATION
By: ______________________________________
Xxxxxx Xxxxx
Director
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