GUARANTEE
MODIFICATION AGREEMENT
GUARANTEE MODIFICATION AGREEMENT (this
"AGREEMENT") dated as of the 28th day of
September, 1995, by and among DANIBL R. HATY, an
individual having an address c/o Columbia Pacific
Management, Inc., 0000 Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxxxx 00000 ("GUARANTOR" ) and
NOMURA ASBBT CAPITAL CORPORATION (as assignee from
Health Care Asset Trust ("HCAT")), a Delaware
corporation, at its principal place of business at
2 World Xxxxxxxxx Xxxxxx, Xxxxxxxx X, Xxx Xxxx,
Xxx Xxxx 00000-0000 ( "LENDER" ).
WITNESSETH:
WHEREAS, HCAT has heretofore made a loan (the
"LOAN") to Emeritus Corporation (formerly known as
Assisted Living of America, Inc. and referred to
herein as the "BORROWER") in an amount of
$3,300,000 with respect to an assisted living
facility located at 0000 Xxxxx x0xx Xxxxx,
Xxxxxxx, Xxxxxxx (the "TRUST PROPERTY" );
WHEREAS, the Loan has been previously
assigned by HCAT to Lender ;
WHEREAS, Lender and Borrower have agreed to
amend the terms of the Loan pursuant to the terms
of those certain Amended and Restated Note (the
"AMENDED NOTE") and Deed of Trust Modification
Agreement, both dated of even date herewith,
together with certain other documents and
certificates related thereto (all of the foregoing
documents being collectively, the "MODIFICATION
AGREEMENTS") among Borrower and Lender.
WHEREAS, Guarantor has heretofore executed
and delivered to HCAT that certain Guarantee
Agreement dated as of June 6, 1994 in connection
with the Loan (the "GUARANTEE") which has been
assigned by HCAT to Lender.
WHEREAS, as an inducement to Lender to
consummate such modification of the Loan,
Guarantor has agreed to enter into this Agreement.
NOW, THREFORE, in consideration of the
premises and for other good and valuable
consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree
as follows:
Section l. MODIFICNTION OF GUARANTY. The
Guarantee is hereby modified as follows:
(a) The term "Note" as used in the Guarantee
is modified to mean the Amended Note and the term
"Loan Documents" as used in the Guarantee is
modified to mean the Loan Documents (as defined in
the Amended Note), including the Modification
Agreements.
Section 2. GUARANTOR CONSENT. Guarantor
hereby consents to the modifications and other
transactions contemplated by the Modification
Agreements and waives any defense to his
obligations under the Guarantee based upon or
arising out of the Modification Agreements.
Section 3. REAFFIRMATION OF GUARNATEE.
(a) The Guarantee, as modified hereby, is
ratified and confirmed in its entirety, and all of
Guarantor's agreements, covenants warranties and
representations contained therein are hereby
ratified and confirmed as if set forth fully
herein on the date hereof.
(b) Guarantor hereby represents and warrants
to Lender that the Guarantee, as modified hereby,
is in full force and effect, and that there exist
no offset, counterclaim or defenses to the
obligations of Guarantor under the Guarantee, as
modified hereby.
Section 4. MISCELLANEOUS.
(a) This Agreement shall be binding upon the
parties hereto and their respective successors,
assign, heirs and legal representatives.
(b) This Agreement may not be modified or
discharged orally, nor may any waiver or consent
be given orally, and every such modification,
discharge, waiver or consent shall be in writing
and signed by the person against which enforcement
hereof is sought.
(c) THIS AGREEMENT SHALL BE GOVERNED BY THE
LAWS OF THE STATE IN WHICH THE TRUST PROPERTY IS
LOCATED.
IN WITNESS WHEREOF, this Agreement has been
duly executed by each of the parties hereto.
/s/ Xxxxxx X. Xxxx
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XXXXXX X. XXXX, Guarantor
/s/ Xxxxx Xxxxxxx
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XXXXX XXXXXXX, Vice President
This is to certify that this Agreement was
executed in my presence on September 22, 1995 by
Xxxxxx X. Xxxx, whose signature appears above in
the capacity indicated.
/s/ Xxxxxxxxx X. Xxxxxxx
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Notary Public
My commission expires:
March 30, 1999
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This is to certify that this Agreement was
executed in my presence on September 27, 1995 by
Xxxxx Xxxxxxx, whose signature appears above in
the capacity indicated.
/s/ Xxxxxx Xxxxxxxx
-
--------------------------------
Notary Public
My commission expires:
January 30, 1997
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