ENVIRONMENTAL INDEMNITY AGREEMENT
THIS ENVIRONMENTAL INDEMNITY AGREEMENT (this "Agreement"),
made as of June __, 1998, from BROOKDALE LIVING COMMUNITIES, INC., a Delaware
corporation. having an office at 00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxxx, Telefax Number (000) 000-0000
(the "Guarantor") to NOMURA ASSET CAPITAL CORPORATION, a Delaware corporation,
having an address 2 World Financial Center, Building B, New York, New York,
Attention: Xxxxxxx X. Xxxxxxx, Telefax Number: (000) 000-0000 (together with its
successors and assigns, "Lender").
RECITALS
WHEREAS, pursuant to a Loan Agreement dated as of the date
hereof between AH Texas Owner Limited Partnership, an Ohio limited partnership
("Borrower"), BLC of Texas-II, L.P., a Delaware limited partnership ("Manager"),
and Lender (as modified and supplemented and in effect from time to time, the
"Loan Agreement"), and a Building Loan Agreement between Borrower, Manager and
Lender (as modified and supplemented and in effect from time to time, the
"Building Loan Agreement," collectively with the Loan Agreement hereinafter
referred to as the "Loan Agreements") at the request of Borrower and Guarantor,
Lender has agreed to make a loan (the "Loan") to Borrower;
WHEREAS, Borrower and Manager are entering into a certain
management agreement dated the date herewith and a certain development agreement
dated the date herewith (collectively the "Management Agreement"), pursuant to
which Manager shall manage, operate and develop the Property;
WHEREAS, Lender is unwilling to make the Loan unless Guarantor
indemnifies Lender against certain liabilities arising under Environmental Laws
(as herein defined), relating to the property being financed in connection with
the Loan, which property consists of the fee simple interest in the land more
particularly described in the Mortgage and all buildings, structures and other
improvements now or hereafter situated on such land (the "Property"); and
WHEREAS, Borrower and Lender contemplate that Lender's
interest in and to the Loan or a portion thereof may be assigned by Lender in
connection with one or more Securitizations.
NOW, THEREFORE, in consideration of the making of the Loan by
Lender and the covenants, agreements, representations and warranties set forth
in this Agreement, the parties hereby covenant, agree, represent and warrant as
follows:
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1. Defined Terms. Unless the context otherwise requires,
capitalized terms used but not otherwise defined herein but defined in the Loan
Agreements shall have the meanings provided therefore in the Loan Agreements,
and the following terms shall have the following meanings:
"Borrower" has the meaning provided in the Recitals to this Agreement.
"Environmental Claim" means any written request for
information by a Governmental Authority, or any written notice, notification,
claim, administrative, regulatory or judicial action, suit, judgment, demand or
other written communication by any Person or Governmental Authority requiring,
alleging or asserting liability with respect to Borrower, Manager or the
Property, whether for damages, contribution, indemnification, cost recovery,
compensation, injunctive relief, investigatory, response, remedial or cleanup
costs, damages to natural resources, personal injuries, fines or penalties
arising out of, based on or resulting from (i) the presence, Use, Release or
threatened Release into the environment of any Hazardous Substance in violation
of any Environmental Law originating at or from, or otherwise affecting, the
Property, (ii) any fact, circumstance, condition or occurrence forming the basis
of any violation, or alleged violation, of any Environmental Law by Borrower,
Manager or otherwise affecting the Property or (iii) any alleged injury or
threat of injury to health, safety or the environment by Borrower, Manager or
otherwise affecting the Property arising from actions which are in violation of
Environmental Laws.
"Environmental Laws" means any and all applicable federal,
state, local and foreign laws, rules, regulations or municipal ordinances each
as amended from time to time, and any Permits, approvals, licenses,
registrations, filings and authorizations, in each case as in effect as of the
relevant date, relating to the environment, health or safety, and pertaining to
or imposing liability or standards of conduct concerning environmental
regulation, contamination or clean-up, including the Comprehensive Environmental
Response, Compensation and Liability Act, the Resource Conservation and Recovery
Act, the Emergency Planning and Community Right-to-Know Act of 1986, the
Hazardous Substances Transportation Act, the Solid Waste Disposal Act, the Clean
Water Act, the Clean Air Act, the Toxic Substance Control Act, the Safe Drinking
Water Act, the Occupational Safety and Health Act, any state super-lien and
environmental clean-up statutes and all amendments to and regulations in respect
of the foregoing laws.
"Environmental Reports" means the environmental audit reports,
with respect to the Property, delivered to Lender prior to the date hereof and
in connection with the Loan, and any amendments or supplements thereto delivered
to Lender prior to the date hereof.
"Guarantor" has the meaning provided in the first paragraph of this
Agreement.
"Hazardous Substance" means, collectively, (i) any petroleum
or petroleum products or waste oils, explosives, radioactive materials,
asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls ("PCBs"),
lead in drinking water, and lead based paint, the
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presence, generation, use, transportation, storage or disposal of or exposure to
which (x) is regulated or could lead to liability under any Environmental Law or
(y) is subject to notice or reporting requirements under any Environmental Law,
(ii) any chemicals or other materials or substances which are now or hereafter
become defined as or included in the definition of "hazardous substances,"
"hazardous wastes," "hazardous materials," "extremely hazardous wastes,"
"restricted hazardous wastes," "toxic substances," "toxic pollutants,"
"contaminants," "pollutants" or words of similar import under any Environmental
Law and (iii) any other chemical or any other material or substance, exposure to
which is now or hereafter prohibited, limited or regulated under any
Environmental Law.
"Lender" has the meaning provided in the first paragraph of this Agreement.
"Loan" has the meaning provided in the Recitals to this Agreement.
"Loan Agreement" has the meaning provided in the Recitals to this
Agreement.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, estate, trust, unincorporated association,
or any other entity, any federal, state, county or municipal government or any
bureau, department or agency thereof and any fiduciary acting in such capacity
on behalf of any of the foregoing.
"Release" means, with respect to any Hazardous Substances, any
release, threatened release, spill, emission, leaking, pumping, injection,
deposit, disposal, discharge, dispersal, leaching or migration into the indoor
or outdoor environment, including, without limitation, the movement of Hazardous
Substances through ambient air, soil, surface water, ground water, wetlands,
land or subsurface strata.
"Remedial Work" means any investigation, site monitoring,
containment, cleanup, removal, restoration or other work of any kind reasonably
necessary or required under an applicable Environmental Law.
"Use" means, with respect to any Hazardous Substance, the
generation, manufacture, processing, distribution, handling, use, treatment,
recycling or storage of such Hazardous Substance in violation of Environmental
Laws or transportation to or from the property of such Person of such Hazardous
Substance in violation of Environmental Laws.
2. Indemnification.
(a) Subject to the limitations set forth in Sections 14 and 17
hereof, Guarantor agrees to indemnify, reimburse, defend (with counsel
satisfactory to Lender in Lender's sole discretion), and hold harmless Lender
for, from and against all demands, claims, actions or causes of action,
assessments, losses, damages, liabilities, costs and expenses, including,
without limitation, interest, penalties, consequential damages, reasonable
attorneys' fees, reasonable
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disbursements and expenses, and reasonable consultants' fees, disbursements and
expenses, including costs of Remedial Work (collectively "Losses"), asserted
against, resulting to, imposed on, or incurred by Lender, directly or indirectly
in connection with any of the following:
i) events, circumstances, or conditions which are alleged to, or do, form
the basis for an Environmental Claim;
ii) the presence, Use or Release of Hazardous Substances at,
on, in, under or from the Property, which presence, use or release
requires or could reasonably require Remedial Work;
iii) any Environmental Claim against any Person whose
liability for such Environmental Claim Guarantor has or may have
assumed or retained either contractually or by operation of law;
iv) the breach of any representation, warranty or covenant set
forth in Section 4.1.31, Section 4.2.31, Section 5.1.10, Section 5.2.10, and
clauses (viii) through (xi) of Section 5.18, of the Loan Agreement; or
v) any failure of Guarantor to fulfill each and every
obligation undertaken pursuant to this Agreement.
(b) The indemnity provided in this Agreement shall not be
included in any exculpation of Guarantor, Manager, or Borrower from personal
liability provided in the Loan Agreement or in any of the other Loan Documents.
Nothing in this Agreement shall be deemed to deprive Lender of any rights or
remedies provided to it elsewhere in this Agreement or in the other Loan
Documents or otherwise available to it under law. GUARANTOR WAIVES AND RELEASES
LENDER FROM ANY RIGHTS OR DEFENSES GUARANTOR MAY HAVE UNDER COMMON LAW OR
ENVIRONMENTAL LAWS FOR LIABILITY ARISING FROM OR RESULTING FROM THE PRESENCE,
USE OR RELEASE OF HAZARDOUS SUBSTANCES EXCEPT TO THE EXTENT DIRECTLY CAUSED BY
THE GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT OF LENDER. IT IS EXPRESSLY
ACKNOWLEDGED AND AGREED BY THE GUARANTOR THAT THE INDEMNITY CONTAINED IN THIS
SECTION PROTECTS LENDER FROM THE CONSEQUENCES OF LENDER'S ACTS OR OMISSIONS,
INCLUDING, WITHOUT LIMITATION, THE NEGLIGENT ACTS OR OMISSIONS OF LENDER, TO THE
EXTENT PROVIDED BY LAW; PROVIDED, HOWEVER, THAT NOTHING CONTAINED HEREIN SHALL
BE DEEMED TO RELIEVE LENDER FROM LIABILITY DUE TO ITS GROSS NEGLIGENCE.
(c) With respect to those matters for which Guarantor has
agreed to indemnify Lender hereunder, and to the maximum extent permitted by
applicable law, Guarantor waives and releases Lender from any rights or defenses
Guarantor may have under common law or Environmental Laws for liability arising
from or resulting from the presence, Use or Release of
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Hazardous Substances except to the extent directly caused by the fraud, gross
negligence or willful misconduct of Lender.
3. Payment. All payments due to Lender under this Agreement
shall be payable to Lender within ten (10) days after written demand therefor,
and shall bear interest at the Default Rate from the date such payment is due
until the date of payment.
4. Governing Law.
(a) The parties agree that the State of Texas has a
substantial relationship to the parties and to the underlying transaction
embodied hereby, and in all respects, including, without limitation, matters of
construction, validity and performance, this Agreement and the obligations
arising hereunder shall be governed by, and construed in accordance with, the
laws of the State of Texas applicable to contracts made and performed in such
State and any applicable law of the United States of America. To the fullest
extent permitted by law, Guarantor hereby unconditionally and irrevocably waives
any claim to assert that the law of any other jurisdiction governs this
Agreement, and this Agreement shall be governed by and construed in accordance
with the laws of the State of Texas.
(b) Any legal suit, action or proceeding against Lender or
Guarantor arising out of or relating to this Agreement shall be instituted in
any federal or state court in New York, New York, pursuant to ss. 5-1402 of the
New York General Obligations Law, and Guarantor waives any objection which it
may now or hereafter have to the laying of venue of any such suit, action or
proceeding, and Guarantor hereby irrevocably submits to the jurisdiction of any
such court in any suit, action or proceeding. Guarantor does hereby designate
and appoint CT Corporation Systems, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as
its authorized agent to accept and acknowledge on its behalf service of any and
all process which may be served in any such suit, action or proceeding in any
federal or state court in New York, New York, and agrees that service of process
upon said agent at said address (or at such other office in New York, New York
as such agent shall designate in writing in accordance with the terms hereof)
with a copy of same to Guarantor in the manner hereinafter described and written
notice of said service of Guarantor mailed or delivered to Guarantor in the
manner provided herein shall be deemed in every respect effective service of
process upon Guarantor in any such suit, action or proceeding in the State of
New York. Guarantor (i) shall give prompt notice to Lender of any changed
address of its authorized agent hereunder, (ii) may at any time and from time to
time designate a substitute authorized agent with an office in New York, New
York (which office shall be designated as the address for service of process),
and (iii) shall promptly designate such a substitute if its authorized agent
ceases to have an office in New York, New York or is dissolved without leaving a
successor.
5. Modification, Waiver in Writing. No modification,
amendment, extension, discharge, termination or waiver of any provision of this
Agreement or consent to any departure by Guarantor therefrom, shall in any event
be effective unless the same shall be in a writing
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signed by the party against whom enforcement is sought, and then such waiver or
consent shall be effective only in the specific instance, and for the purpose,
for which given. Except as otherwise expressly provided herein, no notice to or
demand on Guarantor shall entitle Guarantor to any other or future notice or
demand in the same, similar or other circumstances.
6. Delay Not a Waiver. Neither any failure nor any delay on
the part of Lender in insisting upon strict performance of any term, condition,
covenant or agreement or exercising any right, power, remedy or privilege
hereunder, shall operate as or constitute a waiver thereof, nor shall a single
or partial exercise thereof preclude any other future exercise, or the exercise
of any other right, power, remedy or privilege. In particular, and not by way of
limitation, by accepting payment after the due date of any amount payable under
this Agreement, Lender shall not be deemed to have waived any right either to
require prompt payment when due of all other amounts due under this Agreement,
or to declare a default for failure to effect prompt payment of any such other
amount.
7. Notices. All notices, consents, approvals and requests
required or permitted hereunder shall be given in writing and shall be effective
for all purposes if hand delivered or sent by (a) hand delivery, with proof of
attempted delivery, (b) certified or registered United States mail, postage
prepaid, (c) expedited prepaid delivery service, either commercial or United
States Postal Service, with proof of attempted delivery, or (d) by telecopier
(with answerback acknowledged) provided that such telecopied notice must also be
delivered by one of the means set forth in (a), (b) or (c) above, addressed if
to Lender at its address set forth on the first page hereof, and if to Guarantor
at its designated address set forth on the first page hereof, or at such other
address and Person as shall be designated from time to time by any party hereto,
as the case may be, in a written notice to the other parties hereto in the
manner provided for in this Section 7. A copy of all notices, consents,
approvals and requests directed to Lender shall be delivered concurrently to
each of the following: Xxxx X. Xxxxxxxx, Esquire, Dechert Price & Xxxxxx, 00
Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000-0000, Telefax Number
860/524- 3930; Nomura Asset Capital Corporation, Two World Xxxxxxxxx Xxxxxx,
Xxxxxxxx X, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Xxxxxxx X. Xxxxxxx,
Telefax Number (000) 000-0000; Nomura Asset Capital Corporation, Two World
Xxxxxxxxx Xxxxxx, Xxxxxxxx X, Xxx Xxxx, XX 00000-0000, Attention Xxxxxx XxXxxx,
Telefax Number (000) 000-0000; and Nomura Asset Capital Corporation, Two World
Xxxxxxxxx Xxxxxx, Xxxxxxxx X, Xxx Xxxx, XX 00000-0000, Attention: Xxxxx Xxxx,
Telefax Number (000) 000-0000. A copy of all notices, consents, approvals and
requests directed to Guarantor shall be delivered concurrently to each of the
following: Brookdale Living Communities, Inc., 00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxxx, Xx., Telefax Number
(000) 000-0000; Brookdale Living Communities, Inc., 00 Xxxx Xxxxxx Xxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxx, Esquire, Telefax
Number (000) 000-0000; Brookdale Living Communities, Inc., 00 Xxxx Xxxxxx Xxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxx, Esquire,
Telefax Number (000) 000-0000; and Xxxxx X. Xxxxxx, Esq., Winston & Xxxxxx, 00
Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Telefax Number (000) 000-0000. A
notice shall be deemed to have been given: (a) in the case of hand delivery, at
the time of
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delivery; (b) in the case of registered or certified mail, when delivered or the
first attempted delivery on a Business Day; (c) in the case of expedited prepaid
delivery upon the first attempted delivery on a Business Day; or (d) in the case
of telecopier, upon receipt of answerback confirmation received prior to 5:00
p.m. local time on a Business Day or if confirmation received thereafter on the
next succeeding Business Day, provided that such telecopied notice was also
delivered as required in this Section 7. A party receiving a notice which does
not comply with the technical requirements for notice under this Section 7 may
elect to waive any deficiencies and treat the notice as having been properly
given.
8. Trial by Jury. EACH OF GUARANTOR AND LENDER, TO THE FULLEST
EXTENT THAT IT MAY LAWFULLY DO SO, WAIVES TRIAL BY JURY IN ANY ACTION OR
PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANY TORT ACTION, BROUGHT BY ANY PARTY
HERETO WITH RESPECT TO THIS AGREEMENT.
9. Assignment. Lender shall have the right to assign this
Agreement and the obligations hereunder to any Person who is from time to time
the owner of the Loan, but not otherwise. The parties hereto acknowledge that
following the execution and delivery of this Agreement, Lender expects to sell,
transfer and assign this Agreement, the Loan Agreements, the Note, the Mortgage
and the other Loan Documents to a trustee and a servicer in connection with one
or more Securitizations. All references to "Lender" hereunder shall be deemed to
include the successors and assigns of Lender, including any trustee or servicer.
10. Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
11. Heading and Recitals. The information set forth in the
heading and recitals hereof are hereby incorporated herein as a part of this
Agreement with the same effect as if set forth in the body hereof.
12. Counterparts. This Agreement may be executed in any number
of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument.
13. Estoppel Certificates. Guarantor and Lender each hereby
agree at any time and from time to time upon not less than fifteen (15) days
prior written notice by Guarantor or Lender to execute, acknowledge and deliver
to the party specified in such notice, a statement, in writing, certifying that
this Agreement is unmodified and in full force and effect (or if there have been
modifications, that the same, as modified, is in full force and effect and
stating the modifications hereto), and stating whether or not, to the best
knowledge of such certifying party, there exists any matter giving rise to a
claim under Section 2, and, if so, specifying each such matter;
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provided, however, that it shall be a condition precedent to Lender's obligation
to deliver the statement pursuant to this Section 13, that Lender shall have
received, together with Guarantor's request for such statement, an officer's
certificate signed by an authorized officer of Guarantor stating that to the
best of Guarantor's knowledge, no matter which could give rise to a claim under
Section 2 exists as of the date of such certificate (or specifying each such
matter).
14. Survival. Subject to Sections 17 and 18 hereof, this
Agreement shall survive (in perpetuity) the closing and disbursement of the
funds evidenced by the Note, payment of the Note, payment and performance of the
Loan Obligations (as such term is defined in the Mortgage), any release,
reconveyance, discharge or foreclosure of the Mortgage, conveyance by deed in
lieu of foreclosure, transfer, and any subsequent conveyance of the Property.
Notwithstanding the foregoing, Guarantor shall not indemnify Lender with respect
to any Losses incurred in connection with, or as a direct result of, any or all
of the matters described above in Section 2(a)(i) through 2(a)(iv) to the extent
that Guarantor can establish directly and solely that such Losses result from
Hazardous Substances being placed on, above or under the Property (a) by the
affirmative act or gross negligence of Lender or any employees, agents or
bailees of Lender; or (b) subsequent to (i) Lender taking fee title to the
Property pursuant to the Mortgage; or (ii) a foreclosure by Lender; or (iii)
acceptance by Lender or any designee of a deed-in-lieu of foreclosure with
respect to the Property. 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 proceeding involving or affecting Borrower or Guarantor, all
as though such payment had not been made.
15. Time of the Essence. Time is of the essence with respect
to each and every covenant, agreement and obligation of Guarantor under this
Agreement.
16. Liability. The liability of Guarantor under this Agreement
shall in no way be limited or impaired by (a) any amendment or modification of
the Loan Documents made in accordance therewith, (b) any extensions of time for
performance required by any of the Loan Documents, or (c) the release or
substitution in whole or in part, of any security for the Note or other evidence
of debt issued pursuant to the Loan Documents; and in any of such cases, whether
with or without notice to Guarantor and with or without consideration.
17. Waiver of One Action Rule; Cross-Collateralization.
(a) The Loan has been made by Lender pursuant to the Master
Financing Facility Agreement. The Master Financing Facility Agreement
contemplates that one or more Other Loans made to Other Borrowers pursuant to
the Master Financing Facility Agreement will, at Lender's election, be cross
collateralized and cross defaulted with the Loan and with each other, subject to
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Section (b) below. In such event, such Other Loans will be secured by the
Property and the Collateral, and the Loan will be secured by the Other
Properties and Other Collateral serving as primary security for such Other
Loans, subject to Section (b) below.
(b) Without limitation to any other right or remedy provided
to Lender in the Loan Agreements or this Guaranty or any of the other Loan
Documents, Guarantor covenants and agrees that upon the occurrence of an Event
of Default and during the continuance thereof (i) Lender shall have the right to
pursue all of its rights and remedies with respect to the Loan or the Other
Loans in one proceeding, or separately and independently in separate proceedings
which it, as Lender, in its discretion, shall determine from time to time, (ii)
Lender is not required to either xxxxxxxx assets, sell the Property, the
Collateral, or any Other Property, or to enforce or realize upon any Other
Non-Recourse Guaranty, in any inverse order of alienation, or be subjected to
any "one action" or "election of remedies" or "anti-deficiency" law or rule
which may prevent Lender from bringing any claim, including any claim for
deficiency, against Guarantor, before or after Lender's commencement or
completion of any foreclosure action either judicially or by power of sale, and
(iii) the exercise by Lender of any remedies against the Property, the
Collateral, any Other Property, or any Other Non-Recourse Guaranty will not
impede Lender from subsequently or simultaneously exercising remedies against
the Property, the Collateral, any Other Property, or any Other Non-Recourse
Guaranty.
(c) Intentionally deleted.
(d) It is understood and agreed by the parties hereto that
upon the satisfaction, termination, or expiration of the indemnification
provided in this Guaranty, no subsequent default under the Other Loans shall
operate to revive or otherwise reinstate the Guaranty, other than as
specifically set forth in Section 14 herein.
18. Notwithstanding anything to the contrary contained herein,
upon the sale of the Property by Borrower to an unrelated third party purchaser,
this Guaranty and the indemnity obligations provided hereunder shall terminate,
except to the extent any such obligations exist and remain unpaid or otherwise
unsatisfied; provided, however, that if subsequent to any such sale, Losses are
incurred as set forth in Section 2(a) and it is proven that such Losses occurred
as a result of actions or omissions of Borrower, Manager, or Guarantor, then the
indemnification provided herein shall continue to be effective or shall be
reinstated, as the case may be.
19. Except as otherwise provided herein and to the extent
permitted by law, Guarantor waives diligence, notice of acceptance of this
Guaranty, filing of claims with any court, any proceeding to enforce any
provision of any other Loan Document, against Guarantor, Borrower or any other
Person, any right to require a proceeding first against Borrower, Guarantor, or
any other Person, or to exhaust any security (including, without limitation, the
Property) for the performance of any obligations of Borrower or any other
Person, or any protest, presentment, notice of default or other notice or demand
whatsoever, including but not limited to any and all suretyship defenses and
defenses in the nature thereof such as the benefits of the provisions of
Vernon's Texas Codes
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Annotated, Civil Practices and Remedies, ss. 17.001, Vernon's Texas Codes
Annotated Business & Commerce Code ss. 34.02 and Texas Rules of Civil Procedure,
Rule 31, (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 18 above.
20. No Usury. Guarantor and Lender intend at all times to
comply with applicable state law or applicable United States federal law (to the
extent that it permits Lender to contract for, charge, take, reserve or receive
a greater amount of interest than under state law). If the applicable law (state
or federal) would render usurious any amount called for under this Agreement, or
contracted for, charged, taken, reserved or received with respect to the
indemnification hereunder, or if Lender's exercise of the option to accelerate
the maturity of the indemnification hereunder, or any prepayment by Guarantor
results in Guarantor having paid any interest in excess of that permitted by
applicable law, then it is Guarantor's and Lender's express intent that all
excess amounts theretofore collected by Lender shall be credited against the
unpaid obligations (or, if the obligations have been or would thereby be paid in
full, refunded to Guarantor), and the provisions of this Agreement immediately
be deemed reformed and the amounts thereafter collectible thereunder reduced,
without the necessity of the execution of any new document, so as to comply with
the applicable law, but so as to permit the recovery of the fullest amount
otherwise called for thereunder. All sums paid or agreed to be paid to Lender
for the use, forbearance or detention of this Agreement shall, to the extent
permitted by applicable law, be amortized, prorated, allocated, and spread
throughout the full stated term of this Agreement until payment in full so that
the rate or amount of interest on account of the obligations does not exceed the
maximum lawful rate from time to time in effect and applicable to the
obligations for so loan as the obligations are outstanding. Notwithstanding
anything to the contrary contained in this Agreement, it is not the intention of
Lender to accelerate the maturity of any interest that has not accrued at the
time of such acceleration or to collect unearned interest at the time of such
acceleration.
[Signature on the following page]
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IN WITNESS WHEREOF, the Guarantor has caused this
Environmental Guaranty Indemnity Agreement to be duly executed by its duly
authorized representative, all as of the day and year first above written.
GUARANTOR:
BROOKDALE LIVING COMMUNITIES, INC.,
a Delaware corporation
By: ________________________________
Xxxxxx X. Xxxxxxxx, Xx.
Executive Vice President
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AGREED AND ACKNOWLEDGED
ONLY FOR SECTION 8
NOMURA ASSET CAPITAL CORPORATION
By: ______________________________________
Xxxxxx Xxxxx
Director
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