GUARANTY AND LIMITED INDEMNITY AGREEMENT
from
EMERITUS CORPORATION as Guarantor,
and
DEUTSCHE BANK AG,
NEW YORK BRANCH
as Lender
Dated as of April 29,1998
GUARANTY AND LIMITED INDEMNITY AGREEMENT
THIS GUARANTY AND LIMITED INDEMNITY AGREEMENT (this "Guaranty"),
made as of the 29th day of April,1998, by EMERITUS CORPORATION, a
Washington corporation, having an address at 0000 Xxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 9812 I (the "Guarantor"), in favor
of 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 00 Xxxx 00xx Xxxxxx, 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
"Borrowers") concurrently herewith are obtaining a loan in the
aggregate principal amount of Fifty-Six Million Two Hundred Eighty
Six Thousand and 00/100 Dollars ($56,286,000.00) (the "Loan") from
Lender pursuant to the terms and conditions of that certain Credit
Agreement, dated of even date hereof, between the Borrowers and
Lender (the "Credit Agreement"; capitalized terms not otherwise
defined herein shall have the meaning ascribed to such term in the
Credit Agreement);
WHEREAS, the Loan is evidenced by those certain promissory notes
(collectively, the "Note"), dated of even date hereof by the
Borrowers and payable to the order of Lender in the stated
aggregate principal amount of the original amount of the 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 Borrowers in favor of Lender (collectively,
the "Mortgage") and (2) those certain Security Agreements from the
Borrowers in favor Lender (collectively, 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 each Loan, as the
same may from time to time be amended, extended, consolidated,
renewed or replaced are collectively referred to herein as the
"Loan Documents"; and
WHEREAS, as a condition to entering into the Credit Agreement 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; and
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.
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NOW, THEREFORE, to induce Lender to extend the Loan to the
Borrowers and in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Guarantor hereby covenants
and agrees for the benefit of Lender, as follows:
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;
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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;
e) any impairment by the Borrowers or any of their Affiliates of
the value of any material portion of the Collateral for each
Loan;
f) 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,
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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
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. GUARANTV 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
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legal or equitable discharge of the Guarantor or which might
otherwise constitute a defense 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 of the
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 Lerider 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, aIl
such rights being hereby expressly reserved.
13. RIGHTS CUMULATIVE: PAVMENTS. 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 ARISING 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
obseivance 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 Lender's improper recording or
filing thereof or to otherwise perfect, protect, secure or insure
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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 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 I 1 U.S.C. 1 OS 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, 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.
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20. GOVERNING LAW. This Guaranty shall be governed by, and
construed in accordance with, the laws of the State of New York.
2I. 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.
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
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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.
* * *
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IT WITNESS WHEREOF, the Guarantor has executed this Guaranty as a
sealed instrument as of the day and year 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.
EMERITUS CORPORATION,
a Washington corporation
By : /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Assistant Secretary
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