GUARANTY OF COMPLETION
made by
BROOKDALE LIVING COMMUNITIES, INC.
as guarantor,
in favor of
BANC ONE CAPITAL PARTNERS IV, LTD.
Dated as of June 17, 1998
GUARANTY OF COMPLETION
This GUARANTY OF COMPLETION (this "Guaranty"), dated as of June
17, 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 BANC ONE CAPITAL PARTNERS IV, LTD., an Ohio limited
liability company, having an address at 000 Xxxx Xxx Xxxxxx, Xxxxxxxx, Xxxx
00000, Attention: Xxxx X. Xxxxx (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 between AH Michigan Subordinated, LLC, an
Ohio limited liability company ("Borrower") and Lender, Lender has agreed to
make a loan (the "Loan") to Borrower in the original principal amount of
$11,000,776, subject to the terms and conditions of the Loan Agreement;
B. As a condition to Lender's making the Loan, Lender is
requiring that Guarantor execute and deliver to Lender this Guaranty; and
C. Guarantor hereby acknowledges that Guarantor will materially
benefit from Lender'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 Agreement, 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 Agreement.
(b) The term "including" means including without limitation.
(c) "Building Loan Agreement" has the meaning set forth in the Senior Loan
Documents.
(d) "Governmental Authorities" has the meaning set forth in the Senior Loan
Documents.
(e) "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 the
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extent to be paid for from Retainage or other sums are then held or reserved by
Senior Lender but not yet disbursed in accordance with the Building Loan
Agreement).
(f) "Liens" has the meaning set forth in the Senior Loan Documents.
(g) "Owner" means AH Michigan Owner Limited Partnership, an Ohio limited
partnership.
(h) "Permitted Encumbrances" has the meaning set forth in the Senior Loan
Documents.
(i) "Person" has the meaning set forth in the Senior Loan Documents.
(j) "Plans" has the meaning set forth in the Senior Loan Documents.
(k) "Property" has the meaning set forth in the Senior Loan Documents.
(l) "Retainage" has the meaning set forth in the Senior Loan Documents.
(m) "Senior Lender" means Nomura Asset Capital Corporation, and its
successors and assigns.
(n) "Senior Loan" shall mean the loan from Senior Lender to Owner for the
acquisition, development and construction of the Project, in an amount of up to
$26,625,000.
(o) "Senior Loan Documents" shall mean the loan documents evidencing or
securing the Senior Loan.
(p) "Substantial Completion" has the meaning set forth in the Senior Loan
Documents.
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 the Borrower pursuant
to Section 6.1(n) of the 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 shall cause Owner and
Manager, in accordance with the terms of the Building Loan Agreement, to 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
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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 Owner's and Manager's rights, if
any, set forth in the Building Loan Agreement with regard to the contesting of
Liens.
(c) If Borrower 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 Lender, reimburse Lender for all sums paid and all costs,
expenses or liabilities incurred by Lender in connection therewith. All
such sums shall be 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 the Borrower's failure to fulfill its obligations under
the 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 Lender's declaring the
principal, interest and other sums evidenced or secured by the Loan Documents to
be due and payable.
(e) Guarantor hereby agrees that, notwithstanding any provisions to the
contrary in any Loan Document limiting the recourse of Lender to collateral
encumbered by the Loan Documents, or limiting the rights of Lender to obtain a
deficiency judgment against Borrower, 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) shall terminate on the Guaranty
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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 Liens referred to therein, whether asserted before or after
the Guaranty Termination Date.
3. Intentionally Omitted.
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):
(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.
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(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 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 Lender, 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, Guarantor, or any other Person or any action to
enforce the same, any failure or delay in the enforcement of the obligations of
Borrower 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, or any other Person at any time. 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
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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, or any other Person, any right to require a
proceeding first against Borrower, or any other Person, or to exhaust any
security for the performance of the Guarantied Obligations or any other
obligations of Borrower, 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 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,
Guarantor or any other Person;
(ii) any failure by Lender or any other Person, whether or not without
fault on its part, to perform or comply with any of the terms of the 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
Owner, Manager, or the Property or any interest therein;
(iv) the conveyance to Senior Lender, any Affiliate of Senior Lender
or Senior Lender's nominee of the Property or any interest therein by a
deed-in-lieu of foreclosure;
(v) the release of Borrower, 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.
(c) Except as otherwise specifically provided in this Guaranty, Guarantor
hereby expressly and irrevocably waives all defenses in an action brought by
Lender 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) Lender may deal with Borrower in the same manner and as freely as if
this Guaranty did not exist and shall be entitled, among other things, to grant
Borrower, or any other Person such extension or extensions of time to perform
any act or acts as may be deemed
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advisable by Lender, at any time and from time to time, without terminating,
affecting or impairing the validity of this Guaranty or the Guarantied
Obligations.
(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 Lender's rights
hereunder, and Guarantor agrees that if any Loan Document or the Plans are
modified with Lender'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 Lender'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 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 Lender, 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 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, or any other Person, or any security for the obligations of
Borrower, 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, or Guarantor to Lender and such payment is rescinded or must otherwise
be returned by Lender (as determined by Lender in its sole and absolute
discretion) upon insolvency, bankruptcy, liquidation, reorganization,
readjustment, composition, dissolution, receivership, conservatorship, winding
up or other similar
7
proceeding involving or affecting Borrower or Guarantor, all as though such
payment had not been made.
(j) For so long as the Loan is outstanding, Guarantor hereby expressly
waives any and all of its rights of subrogation, reimbursement, indemnity and
recourse against Borrower and/or Owner. 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, the Guarantor and its affiliates shall have the right to be
reimbursed by Owner in accordance with the terms and conditions of the
Management Agreement and the Development Agreement for their out-of-pocket costs
or fees pursuant thereto unless at the time of such payment there exists an
Event of Default under the Loan Agreement. Anything herein to the contrary,
notwithstanding, the provisions of this Section 6(j) do not create any
obligation on the part of the Owner to the Lender.
(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 Senior Lender of any of all of its
remedies pursuant to the Senior Loan Documents.
7. Intentionally Omitted.
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 Lender 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.
10. Applicable Law, Waiver of Jury Trial, Consent to Venue.
(a) This Guaranty was partially negotiated in the State of Ohio, and
accepted by Lender in the State of Ohio, 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 Ohio.
(b) THE GUARANTOR AND THE LENDER, AFTER CONSULTING OR HAVING HAD THE
OPPORTUNITY TO CONSULT WITH COUNSEL, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY RELATED INSTRUMENT OR AGREEMENT, OR ANY OF
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, OR ANY
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COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
THE GUARANTOR OR THE LENDER. THE GUARANTOR AND THE LENDER SHALL NOT SEEK TO
CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY ACTION IN WHICH A JURY TRIAL HAS
BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT
BEEN WAIVED UNLESS FAILURE TO SO CONSOLIDATE WOULD RESULT IN A MANDATORY LOSS OF
SUCH CLAIM. IN THE EVENT OF A DISPUTE UNDER THIS AGREEMENT, THE GUARANTOR AND
THE LENDER HEREBY AGREE THAT EXCLUSIVE JURISDICTION AND VENUE LIES IN A COURT OF
COMPETENT JURISDICTION IN FRANKLIN COUNTY, OHIO. THESE PROVISIONS SHALL NOT BE
DEEMED TO HAVE BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY THE GUARANTOR OR
THE LENDER EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY SAME.
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. Intentionally Omitted.
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 more other guaranties, pursuant to which
Guarantor has guaranteed the payment and performance of certain other
obligations of Borrower 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.
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If to Lender, to:
Banc One Capital Partners IV, Ltd.
000 Xxxx Xxx Xxxxxx
00xx Xxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxx
with a copy to:
Banc One Capital Markets, Inc.
000 Xxxx Xxx Xxxxxx
00xx Xxxxx
Xxxxxxxx, Xxxx 00000
Attention: Legal Department
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.
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17. Interest; Expenses.
(a) If Guarantor fails to pay all or any sums due hereunder upon
demand by Lender, 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 Lender in enforcing the covenants,
agreements, obligations and liabilities of Guarantor under this Guaranty.
18. Intentionally Omitted.
19. Intentionally Omitted.
20. Intentionally Omitted.
21. Intercreditor Agreement.
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND ALL RIGHTS AND
REMEDIES OF LENDER WITH RESPECT TO THE LOAN, THE GUARANTIED OBLIGATIONS OR ANY
COLLATERAL THEREFOR ARE EACH AND ALL SUBJECT TO THE TERMS AND CONDITIONS OF THE
INTERCREDITOR AGREEMENT.
[Remainder of page intentionally left blank; signature page follows.]
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IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date
first above written.
BROOKDALE LIVING COMMUNITIES,
INC., a Delaware corporation
By:
Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: Executive Vice President
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AGREED AND ACKNOWLEDGED
ONLY FOR SECTION 10(b)
BANC ONE CAPITAL PARTNERS IV, LTD.
By: BOCP Holdings Corporation, its Manager
By: ______________________________________
Name: Xxxxxxx X. Xxxx
Title: Authorized Signer
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