Xxxxx BalzerSusan Xxxxxx
AMENDED AND RESTATED
GUARANTY AND LIMITED INDEMNITY AGREEMENT
THIS AMENDED AND RESTATED GUARANTY AND LIMITED
INDEMNITY AGREEMENT (this "Guaranty") is made as of this
30th day of June,1998, by EMERITUS CORPORATION, a Washington
corporation, having an address at 0000 Xxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxx, Xxxxxxxxxx 00000 (the "Guarantor") to DEUTSCHE
BANK AG, a bank chartered under the laws of the Federal
Republic of Germany, acting by and through its New York
Branch, having an address at 31 West 52"d Street, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 ("Lender").
WITNESSETH:
WHEREAS, Emeritus Properties II, Inc., Emeritus Properties
V, Inc. and Emeritus Properties VII, Inc. (collectively, the
"Original Borrowers") entered into that certain Credit
Agreement with Lender, dated as of April 29,1998 (the
"Original Credit Agreement");
WHEREAS, pursuant to the Original Credit Agreement, Lender
made a loan to the Original Borrowers in the aggregate
principal amount of Fifty-Six Million Two Hundred Eighty-Six
Thousand and No/100 Dollars (the "Original Loan");
WHEREAS, the Original Loan was evidenced by those certain
promissory notes (collectively, the "Original Notes"), dated
as of April 29,1998 by the Original Borrowers and payable to
the order of Lender in the stated aggregate principal amount
of the original amount of the Original Loan are secured,
inter alia, by (1) those certain Mortgages, Open-End
Mortgages, Advance Money Mortgages, Trust Deeds, Deeds of
Trust, Trust Indentures; Assignments, Assignments of Rents,
Security Agreements, including Fixture Filings and Financing
Statements made by the Original Borrowers in favor of Lender
(collectively, the "Original Mortgages") and (2) those
certain Security Agreements from the Original Borrowers in
favor of Lender (collectively, the "Original Security
Agreements"); and
WHEREAS, as a condition of entering into the Original Credit
Agreement and making the Original Loan to the Original
Borrowers, Lender required the Guarantor to make that
certain Guaranty and Limited Indemnity, dated as of April
29,1998, in favor of Lender (the "Original Guaranty");
WHEREAS, the Original Borrowers and Emeritus Properties III,
Inc. (the "Additional Borrower") have requested that Lender
make a loan to the Additional Borrower in the amount of
SIXTEEN MILLION NINE HUNDRED FORTY-NINE THOUSAND AND NO/100
DOLLARS ($16,949,000.00)(the "Additional Loan");
WHEREAS, Lender is entering into that certain Amendment to
Credit Agreement and Restatement of Article IX with the
Original Borrowers and the Additional Borrower (the
Original Borrowers and the Additional Borrower are
collectively referred to herein as the "Borrowers") dated as
of the date hereof(the "Amendment"; the Original Credit
Agreement as amended by the Amendment is referred to herein
as the "Credit Agreement") pursuant to the terms and
conditions of which Lender is making the Additional Loan to
the Additional Borrower;
WHEREAS, the Additional Loan is evidenced by that certain
promissory note (the "Additional Note"), dated as of the
date hereof by the Additional Borrower and payable to the
order of Lender in the stated principal amount of the
original amount of the Additional Loan and shall be secured,
inter alia, by (1) those certain Mortgages, Open-End
Mortgages, Advance Money Mortgages, Trust Deeds, Deeds of
Trust, Trust Indentures, Assignments, Assignments of Rents,
Security Agreements, including Fixture Filings and Financing
Statements made by the Additional Borrower in favor of
Lender (collectively, the "Additional Mortgages") and (2)
that certain Security Agreement by the Additional Borrower
in favor of Lender (the "Additional Security Agreement");
WHEREAS, the Original Notes and the Additional Note are
collectively referred to herein as the "Note"; the Original
Loan and the Additional Loan are collectively referred to
herein as the "Loan"; the Original Mortgages and the
Additional Mortgages are collectively referred to herein as
the "Mortgage"; and the Original Security Agreements and the
Additional Security Agreement are collectively referred to
herein as the "Security Agreement". The Credit Agreement,
the Note, the Mortgage, the Security Agreement and the other
documents and instruments evidencing, securing or otherwise
related to the Loan, as the same may be from time to time
amended, consolidated, renewed or replaced, are collectively
referred to herein as the
"Loan Documents";
WHEREAS, as a condition to entering into the Amendment with
the Borrowers, Lender has required that the Guarantor
indemnify Lender from and against, and guarantee payment to
Lender of, certain Costs (as hereinafter defined) and the
Guaranteed Obligations (as hereinafter defined) relating to
the Loan as set forth herein;
WHEREAS, each of the Borrowers is a wholly-owned, either
directly or indirectly, subsidiary of the Guarantor, and the
Guarantor will derive substantial economic benefit from
Lender making the Loan to the Borrowers, and, therefore, the
Guarantor has agreed to indemnify Lender from and against
and guaranty payment to Lender of the Costs and the
Guaranteed Obligations relating to the Loan as set forth
herein.
NOW, THEREFORE, in consideration of the premises and of the
covenants and agreements contained herein, the Guarantor and
Lender hereby agree that the Original Guaranty shall be and
hereby is amended and restated in its entirety as follows:
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1. Guaranteed Obligations.
(a) The Guarantor absolutely and unconditionally guarantees
to Lender the punctual and complete payment and performance
when due (whether at the stated maturity, by acceleration or
otherwise), of the principal of, and accrued and unpaid
interest on, each Loan made pursuant to the Credit
Agreement. (The obligations described in this clause (a) are
referred to herein as the "Guaranteed Obligations").
(b) Anything to the contrary provided in this Guaranty
notwithstanding, the liability of the Guarantor under clause
(a) above, shall not be reduced by any prepayment or
repayment of principal or any payment of interest, as the
case may be, due under any Note by or on behalf of the
Borrowers other than a payment pursuant to this Guaranty
following a written demand by Lender pursuant to subsection
1(c) hereof.
(c) If any Borrower shall fail to pay when due any required
payment of principal or interest on any Note, as the case
may be, Lender may, subject only to the express limitations
set forth in this Guaranty, call upon the Guarantor to pay
the unpaid amount. The Guarantor shall, upon demand,
immediately pay such unpaid amount to Lender.
2. Indemnification by the Guarantor. The Guarantor hereby
assumes liability for, guarantees payment to Lender of,
agrees to pay, protect, defend and save Lender harmless and
indemnify Lender from and against, any and all liabilities,
obligations, losses, damages, costs and expenses (including,
without limitation, reasonable attorneys' fees, costs and
disbursements, causes of action, suits, claims, losses
(including, without limitation, any diminution in the value
of the security afforded by the property mortgaged by each
of the Mortgages by reason of any of the following
occurrences), demands and judgments of any nature or
description whatsoever (collectively, "Costs")), which may
at any time be imposed upon
,incurred by or awarded against Lender resulting from:
a) any fraud or misrepresentation committed by the Borrowers
or any of their Affiliates; b) any intentional and
material breach of the Borrowers' covenants set forth in the
related Mortgage;
c) any action or inaction taken or omitted in bad faith by
the Borrowers or any of their Affiliates;
d) any interference by the Borrowers or any of their
Affiliates with Lender's exercise of its remedies under the
Loan Documents following an occurrence of an Event of
Default;
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e) any impairment by the Borrowers or any of their
Affiliates of the value of any material portion of the
Collateral for each Loan;
any failure of any Guaranteed Obligations to be the legal,
valid and binding obligations of the Borrowers enforceable
against the Borrowers in accordance with its terms, except
as enforcement may be limited by bankruptcy, insolvency or
other similar Laws affecting the rights of creditors
generally; or
(g) any failure of any Borrower to pay and perform any
Guaranteed Obligations in accordance with the terms of such
Guaranteed Obligations.
3. Indemnification Procedures.
(a) If any action shall be brought against Lender based upon
any of the matters for which Lender is indemnified
hereunder, Lender shall notify the Guarantor in writing
thereof and the Guarantor shall promptly assume the defense
thereof, including, without limitation, the employment of
counsel reasonably acceptable to Lender and the negotiation
of any settlement; provided, however, that any failure of
Lender to notify the Guarantor of such matter shall not
impair or reduce the obligations of the Guarantor hereunder.
Lender shall have the right, at the expense of the Guarantor
(which expense shall be included in Costs), to employ
separate counsel in any such action and to participate in
the defense thereof. In the event the Guarantor shall fail
to discharge or undertake to defend Lender against any
claim, loss or liability for which Lender is indemnified
hereunder, such failure shall constitute an Event of Default
and Lender may, at its sole option and election, defend or
settle such claim, loss or liability. The liability of the
Guarantor to Lender hereunder shall be conclusively
established by such settlement, provided such settlement is
made in good faith, the amount of such liability to include
both the settlement consideration and the costs and
expenses, including, without limitation, attorneys' fees and
disbursements, incurred by Lender in effecting such
settlement. In such event, such settlement consideration,
costs and expenses shall be included in Costs and the
Guarantor shall pay the same as hereinafter provided.
Lender's good faith in any such settlement shall be
conclusively established if the settlement is made on the
advice of independent legal counsel for Lender.
(b) The Guarantor shall not, without the prior written
consent of Lender, (i) settle or compromise any action,
suit, proceeding or claim or consent to the entry of any
judgment that does not include as an unconditional term
thereof the delivery by the claimant or plaintiff to Lender
of a full and complete written release of Lender (in form,
scope and substance satisfactory to Lender in its sole
discretion) from all liability in respect of such action,
suit, proceeding or claim and a dismissal with prejudice of
such action, suit, proceeding or claim; or (ii) settle or
compromise any action, suit, proceeding or claim in any
manner that may adversely
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affect Lender or obligate Lender to pay any sum or perform
any obligation as determined by Lender in its sole
discretion.
(c) All Costs shall be immediately reimbursable to Lender
when and as incurred and, in the event of any litigation,
claim or other proceeding, without any requirement of
waiting for the ultimate outcome of such litigation, claim
or other proceeding, and the Guarantor shall pay to Lender
any and all Costs within ten (10) days after written notice
from Lender itemizing the amounts thereof incurred to the
date of such notice. In addition to any other remedy
available for the failure of the. Guarantor to periodically
pay such Costs, if not paid within said ten-day period,
shall bear interest at the Default Rate from the date
incurred until the date they are paid in full.
4. Reinstatement of Obligations. If at any time all or any
part of any payment made by the Guarantor or received by
Lender from the Guarantor under or with respect to this
Guaranty is or must be rescinded or returned for any reason
whatsoever (including but not limited to, the insolvency,
bankruptcy or reorganization of the Guarantor or the
Borrowers), then the obligations of the Guarantor hereunder
shall, to the extent of the payment rescinded or returned,
be deemed to have continued in existence notwithstanding
such previous payment made by the Guarantor, or receipt of
payment by Lender, and the obligations of the Guarantor
hereunder shall continue to be effective or be reinstated,
as the case may be, as to such payment, all as though such
previous payment by the Guarantor had never been made.
5. Guaranty Absolute. The Credit Agreement shall
conclusively be deemed to have been entered into by Lender
and the Loan funded in reliance upon this Guaranty and all
dealings and Loan Documents executed hereafter between the
Borrowers and Lender shall likewise be conclusively presumed
to have been undertaken or consummated in reliance upon this
Guaranty. This Guaranty shall, subject to the terms hereof,
be construed as a continuing, absolute and unconditional
guaranty of payment. The liability of the Guarantor under
this Guaranty shall be absolute and unconditional
irrespective of.. (a) any lack of genuineness, regularity,
legality, validity or enforceability of any of the Loan
Documents, (b) any change in the time, manner or place of
payment of any amount payable under any of the Loan
Documents, or in any other term of any of the Loan
Documents, including, but not limited to, any increase or
decrease in the rate of interest thereon, or any other
amendment or waiver or consent to departure from any of the
Loan Documents including, without limiting the generality of
the foregoing, the waiver of any default thereunder or the
making of any arrangement with, or the accepting of any
compromise or settlement from, the Borrowers or any other
person or entity liable in respect of any amount payable
under any of the Loan Documents, (c) any exchange, release
or non-perfection of any collateral, or any release or
amendment or waiver of or consent to departure from any
other guaranty securing any part of the indebtedness of the
Loans, (d) any act, omission, circumstance or occurrence
that might otherwise vary the risk of the Guarantor or any
of them or be deemed a legal or equitable discharge of the
Guarantor or which might otherwise constitute a defense
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available to Borrowers or the Guarantor or (e) any dealings
or transactions between Lender or the Borrowers or any other
person or entity liable in respect of the indebtedness of
the Loan.
Without limiting the generality of the foregoing and subject
to the terms hereof, the Guarantor's liability under this
Guaranty shall, subject to the terms hereof, be absolute and
unconditional irrespective of any right of set-off or
counterclaim which the Borrowers or the Guarantor may from
time to time have in respect of any moneys or liabilities
owing by, or any claims against, Lender and the Guarantor
irrevocably waive any defense or claim based upon any such
right of set-off or counterclaim. This Guaranty shall
continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the indebtedness of
any of the Loans is rescinded or must otherwise be returned
by Lender upon the insolvency, bankruptcy or reorganization
of the Borrowers or otherwise, all as though such payment
had not been made.
6. Waiver. The Guarantor hereby waives protest, promptness,
diligence, notice of acceptance, demand for payment and
notice of default or non-payment in respect of the Credit
Agreement and any of the Loan Documents and waives all other
notices of every kind and description with respect to any of
the Loans now or hereafter provided by any statute or rule
of law. The Guarantor hereby waives any requirement that
Lender protect, secure, perfect or insure any security
interest or lien or any property subject thereto or exhaust
any right or take any action against Borrowers, against the
Guarantor hereunder or the against Guarantor or any other
person, entity or any collateral. The Guarantor hereby
waives, to the fullest extent permitted by applicable law,
the benefit of any statute of limitations which may affect
its liability hereunder or the enforcement hereof. Any
payment by the Borrowers or other circumstance that operates
to toll any statute of limitations as to the Borrowers shall
operate to toll the statute of limitations as to the
Guarantor. In addition, the Guarantor agrees to the waivers
set forth in Addendum A hereto, which is incorporated herein
by reference, mutadis mutandis, with the same force and
effect as if herein fully set forth.
7. Nature of Guaranty. This Guaranty is a guaranty of
payment and performance and not of collection, is continuing
in nature and applies to all Guaranteed Obligations, whether
existing now or in the future, including (a) interest and
other Guaranteed Obligations arising or accruing after
bankruptcy of any Loan Party or any sale or other
disposition of any Collateral, and (b) any Guaranteed
Obligations that survive repayment of the Loan. This
Guaranty and any Security for this Guaranty shall continue
to be effective or be reinstated, as the case may be, if at
any time any payment or performance of any Guaranteed
Obligations is rescinded or must otherwise be returned by
Lender or any other person upon the bankruptcy, insolvency
or reorganization of any Loan Party or otherwise, all as
though such payment or performance had not occurred. The
Guarantor shall have no authority to revoke this Guaranty,
but if any such revocation shall be deemed to have occurred
by operation of law or otherwise, the provisions of this
Guaranty shall continue to apply notwithstanding such
revocation.
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8. Obligations Independent. The obligations of the Guarantor
under this Guaranty are independent of the obligations of
any other Loan Party under the Loan Documents (such
obligations of any other Loan Party, including the
Borrowers' obligations in respect of the Guaranteed
Obligations, being referred to in this Guaranty as the
"Other Obligations") and any security, and the
enforceability of any security for this Guaranty is likewise
independent of any such Other Obligations and any other
security. Lender may bring action against the Guarantor and
otherwise enforce this Guaranty without bringing action
against any other Loan Party or joining any other Loan Party
in any action against the Guarantor, and otherwise
independently of any other remedy at law or in equity that
may be available to Lender at any time with respect to any
Other Obligations or security. The Guarantor waives any
right to require Lender at any time to proceed against any
other Loan Party, or otherwise enforce, proceed against or
exhaust any Other Obligations or pursue any other remedy in
Lender's power.
9. Full Recourse. Notwithstanding any provisions of any
other Loan Document to the contrary, all of the terms and
provisions of this Guaranty are recourse obligations of the
Guarantor and not restricted by any limitation on personal
liability.
10. Survival. To the fullest extent permitted by law, this
Guaranty shall be deemed to be continuing in nature and
shall remain in full force and effect and shall survive the
exercise of any remedy by Lender under the Credit Agreement
or any ofthe other Loan Documents, including, without
limitation, any foreclosure or deed in lieu thereof, even
if, as a part of such remedy, the Loan is paid or satisfied
in full.
11. Waiver of Subrogation. Until such time as the Loan is
paid in full, the Guarantor hereby irrevocably waives all
rights of subrogation and any other claims that they may now
or hereafter acquire against the Borrowers or any insider
that arise from the existence, payment, performance or
enforcement of the Guarantor's obligations under this
Guaranty, including, without limitation, any right of
reimbursement, exoneration, contribution or indemnification
and any right to participate in any claim or remedy of
Lender against the Borrowers or any insider, whether or not
such claim, remedy or right arises in equity or under
contract, statute or common law, including, without
limitation, the right to take or receive from the Borrowers
or any insider, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or
security on account of such claim, remedy or right. If any
amount shall be paid to the Guarantor in violation of the
foregoing at any time prior to the indefeasible cash payment
of the Loan, such amount shall be held in trust for the
benefit of Lender and shall forthwith be paid to Lender to
be credited and applied to all amounts payable under this
Guaranty or to be held as collateral for any amounts payable
under this Guaranty thereafter arising. The Guarantor
acknowledges that they have and will receive direct and
indirect benefits from the financing arrangements
contemplated by the Loan Documents and that the waiver set
forth in this Section 11 is knowingly made in contemplation
of such benefits.
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12. Reservation of Rights. Nothing contained in this
Guaranty shall prevent or in any way diminish or interfere
with any rights or remedies, including, without limitation,
the right to contribution, which Lender may have against the
Borrowers, the Guarantor or any other party under the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (codified at Title 42 U.S.C. 9601 et
sea.), as it may be amended from time to time, or any other
applicable federal, state or local laws, all such rights
being hereby expressly reserved.
13. Rights Cumulative; Payments. Lender's rights under this
Guaranty shall be in addition to all rights of Lender under
the Credit Agreement and the other Loan Documents. TO THE
EXTENT THAT PAYMENTS ARE MADE HEREUNDER BY THE GUARANTOR
WITH RESPECT TO OBLIGATIONS AND LIABILITIES FOR WHICH THE
BORROWERS ARE NOT LIABLE UNDER THE NOTE, THE MORTGAGE, THE
CREDIT AGREEMENT OR THE OTHER LOAN DOCUMENTS, SUCH PAYMENTS
MADE BY THE GUARANTOR UNDER THIS GUARANTY SHALL NOT REDUCE
IN ANY RESPECT SUCH BORROWER'S OBLIGATIONS AND LIABILITIES
UNDER THE NOTE, THE MORTGAGE, THE CREDIT AGREEMENT OR THE
OTHER LOAN DOCUMENTS, AND TO THE EXTENT THAT PAYMENTS ARE
MADE HEREUNDER BY THE GUARANTOR WITH RESPECT TO OBLIGATIONS
AND LIABILITIES FOR WHICH SUCH BORROWER IS LIABLE UNDER THE
NOTE, THE MORTGAGE, THE CREDIT AGREEMENT OR THE OTHER LOAN
DOCUMENTS, SUCH PAYMENTS SHALL BE APPLIED FIRST TO THOSE
OBLIGATIONS AND LIABILITIES ARISl NG UNDER THE NOTE, THE
MORTGAGE AND THE OTHER LOAN DOCUMENTS WITH RESPECT TO WHICH
SUCH BORROWER IS NOT PERSONALLY LIABLE.
14. No Limitation on Liability. The Guarantor hereby
consents and agrees that
Lender may at any time and from time to time without further
consent from the Guarantor do any of the following events,
and the liability of the Guarantor under this Guaranty shall
be unconditional and absolute and shall in no way be
impaired or limited by any of the following events, whether
occurring with or without notice to the Guarantor or with or
without consideration: (i) any extensions of time for
performance required by any of the Loan Documents or
otherwise granted by Lender or extension or renewal of the
Note; (ii) any sale, assignment or foreclosure of the Note,
Mortgage or any of the other Loan Documents or any sale or
transfer of the property referenced in such Loan Documents;
(iii) any change in the composition of any Borrower,
including, without limitation, the withdrawal or removal of
the Guarantor from any current or future position of
ownership, management or control of such Borrower; (iv) the
accuracy or inaccuracy of the representations and warranties
made by the Guarantor herein or by the Borrowers in any of
the Loan Documents; (v) the release of any Borrower or of
any other person or entity from performance or observance of
any of the agreements, covenants, terms or conditions
contained in any of the Loan Documents by operation of law,
Lender's voluntary act or otherwise; (vi) the release or
substitution in whole or in part of any security for any of
the Loan; (vii) Lender's failure to record any of the
Mortgages or to file any financing statement (or
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Lender's improper recording or filing thereof or to
otherwise perfect, protect, secure or insure any lien or
security interest given as security for the Loan; (viii) the
modification of the terms of any one or more of the Loan
Documents; or (ix) the taking or failure to take any action
of any type whatsoever. No such action which Lender shall
take or fail to take in connection with any of the Loan
Documents or any collateral for the Loan, nor any course or
dealing with the Borrowers or any other person, shall limit,
impair or release the Guarantor's obligations hereunder,
affect this Guaranty in any way or afford the Guarantor any
recourse against Lender. Nothing contained in this Section
shall be construed to require Lender to take or refrain from
taking any action referred to herein.
15. Enforcement. This Guaranty is subject to enforcement at
law or in equity, including actions for damages or specific
performance.
16. Attorneys' Fees. In the event it is necessary for Lender
to retain the services of an attorney or any other
consultants in order to enforce this Guaranty, or any
portion thereof, the Guarantor agrees to pay to Lender any
and all costs and expenses, including, without limitation,
reasonable attorneys' fees, costs and disbursements,
incurred by Lender as a result thereof and such costs, fees
and expenses shall be included in Costs.
17. Successive Actions. A separate right of action hereunder
shall arise each time Lender acquires knowledge of any
matter indemnified or guaranteed by the Guarantor under this
Guaranty. Separate and successive actions may be brought
hereunder to enforce any of the provisions hereof at any
time and from time to time. No action hereunder shall
preclude any subsequent action, and the Guarantor hereby
waives and covenants not to assert any defense in the nature
of splitting of causes of action or merger of judgments.
18. Reliance. Lender would not enter into the Credit
Agreement without the Guarantor entering into this Guaranty.
Accordingly, the Guarantor intentionally and unconditionally
enters into the covenants and agreements as set forth above
and understands that, in reliance upon and in consideration
of such covenants and agreements, the Credit Agreement shall
be executed and, as part and parcel thereof, specific
monetary and other obligations have been, are being and
shall be entered into which would not be made or entered
into but for such reliance.
19. Waiver by the Guarantor. The Guarantor covenants and
agrees that, upon the commencement of a voluntary or
involuntary bankruptcy proceeding by or against the
Borrowers, the Guarantor shall not seek or cause the
Borrowers or any other person or entity to seek a
supplemental stay or other relief, whether injunctive or
otherwise, pursuant to 11 U.S.C. Section 105 or any other
provision of the Bankruptcy Reform Act of 1978, as amended,
or any other debtor relief law, (whether statutory, common
law, case law or otherwise) of any jurisdiction whatsoever,
now or hereafter in effect, which may be or become
applicable, to stay, interdict,
9
condition, reduce or inhibit the ability of Lender to
enforce any rights of Lender against the Guarantor or the
collateral for the Loan by virtue of this Guaranty or
otherwise.
20. Governing Law. This Guaranty shall be governed by, and
construed in accordance with, the laws of the State of New
York.
21. Remedies. The obligations of the Guarantor under this
Guaranty are independent of the respective Borrowers'
obligations under the Loan Documents, and a separate action
or actions may be brought and prosecuted against the
Guarantor to enforce this Guaranty, irrespective of whether
any action is brought against the Borrowers or whether the
Borrowers are joined in any such action or actions. Any one
or more successive and/or concurrent actions may be brought
hereon against the Guarantor either in the same action, if
any, brought against the Borrowers or in separate actions,
as often as Lender, in its sole discretion, may deem
advisable.
22. Certified Statement. The Guarantor and the Lender each
agree that they will, at any time and from time to time,
within ten (10) days following the reasonable request of the
other, execute and deliver to the other a statement
certifying that this Guaranty is unmodified and in full
force and effect (or if modified, that the same is in full
force and effect as modified and stating such
modifications).
23. Separate Guaranty. The Guarantor agrees that they shall,
at the request of Lender, promptly execute, acknowledge and
deliver a specific guaranty for the Loan, which guaranty
shall be in the same form and nature as this Guaranty.
24. Notices. All notices and other communications which may
be or are desired to be given hereunder shall be in writing
and, if to the Guarantor, sent by recognized overnight
courier or by certified or registered mail, postage prepaid,
return receipt requested, or delivered to it, addressed to
it at the address first set forth above and if to Lender,
mailed or delivered as provided in Section 10.02 of the
Credit Agreement, or as to each party at such other address
as shall be designated by such party in a written notice to
each other party complying as to delivery with the terms of
this Section. All such communications shall be deemed to be
given (i) if hand delivered or sent by overnight courier, on
the day received, or (ii) if mailed, on the third (3rd)
Business Day following deposit thereof in the U.S. Mail.
25. Continuing Agreement; Successors and Assigns. This
Guaranty is a continuing obligation of the Guarantor and
shall (i) remain in full force and effect until the payment
in full of the Loan and all amounts payable under this
Guaranty, (ii) be binding upon the Guarantor and their
respective successors and assigns and (iii) inure to the
benefit of and be enforceable by Lender and its successors,
transferees and assigns or by any person to whom Lender's
interest in the Loan Documents may be assigned.
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26. Certain Notices. Lender shall endeavor to give notice to
the Guarantor of any amendment or modification of the Loan
Documents; provided, however, that failure to provide any
such notice shall in no manner adversely affect the rights
and remedies of Lender hereunder and under the Loan
Documents or in any manner limit the waivers made by the
Guarantor under Section 6.
27. Waivers and Amendments. No supplement to, modification
or amendment of, or waiver, consent or approval under, any
provision of this Guaranty shall be effective unless in
writing and signed by Lender, and any waiver, consent or
approval shall be effective only in the specific instance
and for the specific purpose for which given.
28. Waiver of Jury Trial. Lender and the Guarantor waive
trial by jury in any action or other proceeding (including
counterclaims), whether at law or equity, brought by Lender
or the Guarantor against the other on matters arising out of
or in any way related to or connected with this Guaranty,
the other Loan Documents, the Loan or any transaction
contemplated by, or the relationship between Lender and the
Guarantor or any other Loan Party or any action or inaction
by any party under, any of the Loan Documents.
29. Restatement. It is the intent of the parties hereto that
for the purposes of Chapter 295, Section 12, Washington Laws
of 1998, this Guaranty shall be deemed to have been executed
on the date first set forth herein, and the deficiency
rights in Chapter 295, Section 12, Washington Laws of 1998
shall apply to this Guaranty.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers
thereunto duly authorized, as of the date first above
written.
PLEASE BE ADVISED THAT ORAL
AGREEMENTS OR ORAL COMMITMENTS TO
LOAN MONEY, EXTEND CREDIT OR FORBEAR FROM ENFORCING
REPAYMENT
OF A DEBT ARE NOT ENFORCEABLE UNDER
WASHINGTON LAW.
GUARANTOR:
EMERITUS CORPORATION, a Washington corporation
By: /s/: Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President
LENDER: DEUTSCHE BANK AG,
NEW YORK BRANCH
By: /s/: Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Attorney-In-Fact
By: /s/: Xxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxx X. Xxxxxxxx
Title : Attorney-In-Fact
ADDENDUM A
CALIFORMA GUARANTY ADDENDUM
(a) The Guarantor hereby waives (i) any right to require
Lender to (A) proceed against the principal debtor, or (B)
proceed against or exhaust any security held from the
principal debtor; (ii) to the fullest extent permitted by
law, all rights and benefits under Section 2809 of the
California Civil Code purporting to reduce a guarantor's
obligations in proportion to the principal obligation; (iii)
to the fullest extent permitted by law, all rights and
benefits under (A) Section 580a of the California Code of
Civil Procedure purporting to limit the amount of any
deficiency judgment which might be recoverable following the
occurrence of a trustee's sale under a deed of trust and any
right to a fair value hearing or any fair value limitation
or other limitation on liability or a deficiency based upon
the fair value of any collateral after a non-judicial
foreclosure of the applicable security instrument, (B)
Section 580b of the California Code of Civil Procedure
stating that no deficiency may be recovered on a real
property purchase money obligation, (C) Section 580d of the
California Code of Civil Procedure stating that no
deficiency may be recovered on a note secured by a deed of
trust on real property in case such real property is sold
under the power of sale contained in such deed of trust, and
(D) Section 726 of the California Code of Civil Procedure
stating that there may be but one form of action on an
indebtedness secured by real property, if such sections, or
any of them, have any application hereto or any application
to the Guarantor; (iv) all rights and benefits which might
otherwise be available to the undersigned under California
Civil Code Sections 2810, 2819, 2839, 2845, 2849, 2850,
2899, and 3433; and (v) any rights arising under Section
359.5 of the California Code of Civil Procedure.
(b) In addition, the Guarantor hereby waives all rights and
defenses that the Guarantor may have because the principal
debtor's obligations are secured by real property. This
means, among other things: (i) Lender may collect from the
Guarantor without first foreclosing on all real or personal
property collateral pledged by principal debtor; (ii) if
Lender forecloses on any real property collateral pledged by
the principal debtor: (a) the amount of the debt may be
reduced only by the price for which that collateral is sold
at the foreclosure sale, even if the collateral is worth
more than the sale price, and/or (b) Lender may collect from
the Guarantor even if Lender, by foreclosing on the real
property collateral, has destroyed any right the Guarantor
may have to collect from the principal debtor. This is an
unconditional and irrevocable waiver of any rights and
defenses the Guarantor may have because the principal
debtor's debt is secured by real property. These rights and
defenses include, but are not limited to, any rights or
defenses based upon Section 580a, 580b, 580d, or 726 of the
California Code of Civil Procedure. The Guarantor hereby
waives all rights and defenses arising out of an election of
remedies by Lender, even though that election of remedies,
such as a non-judicial foreclosure with respect to security
for a guaranteed obligation, has destroyed the Guarantor's
rights of subrogation and reimbursement against the
principal by the operation of Section 580d of the California
Code of Civil Procedure or otherwise.
