Freddie Mac Loan No. 981222048
EXCEPTIONS TO NON-RECOURSE GUARANTY
-----------------------------------
(CALIFORNIA)
This Exceptions to Non-Recourse Guaranty ("Guaranty") is entered into
as of December 18, 1999, by the undersigned person(s) (the "Guarantor" whether
one or more), for the benefit of XXXXXX FINANCIAL GROUP, INC., a Minnesota
corporation, and/or any subsequent holder of the Note (the "Lender").
RECITALS
A. THE WOODSIDE BUSINESS TRUST, a Delaware statutory business trust
(the "Borrower") has requested that Xxxxxx make a loan to Borrower in the amount
of $31,500,000.00 (the "Loan"). The Loan will be evidenced by a Multifamily Note
from Borrower to Lender dated as of the date of this Guaranty (the "Note"). The
Note will be secured by a Multifamily Mortgage, Deed of Trust, or Deed to Secure
Debt dated the same date as the Note, executed and delivered by the Borrower to
the Lender encumbering the real property described therein (the "Property").
B. BROOKDALE LIVING COMMUNITIES OF CALIFORNIA - RC, INC., a Delaware
corporation ("Brookdale California - RC") is leasing the Property from Borrower,
as lessor pursuant to the terms of a certain Lease dated December 18, 1998,
entered into by and between Borrower and Brookdale California - RC ("Operator
Lease") and as further security for repayment of the Loan, Brookdale California
- RC is executing and delivering to Lender its Multifamily Guaranty Agreement
dated as of the date hereof (" Multifamily Guaranty Agreement") and as security
for payment and performance of the Multifamily Guaranty Agreement, Brookdale
California - RC is executing and delivering to Lender a certain Multifamily Deed
of Trust, Assignment of Rents, Security Agreement and Fixture Filing dated as of
the date hereof (the "Security Instrument") encumbering the leasehold interest
in the Property created by the Operator Lease.
C. Guarantor will materially benefit from the Loan and as a condition
to making the Loan to Borrower, Lender requires that the Guarantor execute this
Guaranty.
NOW, THEREFORE, in order to induce Lender to make the Loan to Borrower,
and in consideration thereof, Xxxxxxxxx agrees as follows:
1. "Indebtedness" and other capitalized terms used but not defined in
this Guaranty shall have the meanings assigned to them in the Security
Instrument.
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2. Section 2 of the Guaranty is amended in its entirety to read as
follows: "Guarantor hereby absolutely, unconditionally and irrevocably
guarantees to Lender the full and prompt payment when due, whether at maturity
or earlier, by reason of acceleration or otherwise, and at all times thereafter,
and the full and prompt performance when due of all of the following:
(a) All amounts for which Brookdale California - RC is personally
liable under paragraphs 6 (c) through 6 (f) of the Security Instrument.
(b) The payment and performance of all of Brookdale California - RC's
obligations under Section 18 of the Security Instrument.
(c) The entire Indebtedness in the event that (i) Brookdale California
- RC voluntarily files for bankruptcy protection under the United
States Bankruptcy Code or voluntarily becomes subject to any
reorganization, receivership, insolvency proceeding or other similar
proceeding pursuant to any other federal or state law affecting debtor
and creditor rights, or (ii) any order for relief is entered against
Brookdale California - RC in any involuntary bankruptcy filing by any
creditor of Brookdale California - RC other than Lender pursuant to the
United States Bankruptcy Code or other federal or state law affecting
debtor and creditor rights.
(d) All costs and expenses, including reasonable fees and out-of-pocket
expenses of attorneys and expert witnesses, incurred by Xxxxxx in
enforcing its rights under this Guaranty."
For purposes of determining Guarantor's liability under this Guaranty, all
payments made by Brookdale California - RC with respect to the Indebtedness and
all amounts received by Lender from the enforcement of its rights under the
Security Instrument shall be applied first to the portion of the Indebtedness
for which neither Brookdale California - RC nor Guarantor has personal
liability.
3. The obligations of Guarantor under this Guaranty shall survive any
foreclosure proceeding, any foreclosure sale, any delivery of any deed in lieu
of foreclosure, and any release of record of the Security Instrument, and, in
addition, the obligations of Guarantor relating to Brookdale California - RC's
obligations under Section 18 of the Security Instrument shall survive any
repayment or discharge of the Indebtedness.
4. Guarantor's obligations under this Guaranty constitute an
unconditional guaranty of payment and not merely a guaranty of collection.
5. The obligations of Guarantor under this Guaranty shall be performed
without demand by Lender and shall be unconditional irrespective of the
genuineness, validity, regularity or enforceability of the Note, the Security
Instrument, or any other Loan Document, and without
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regard to any other circumstance which might otherwise constitute a legal or
equitable discharge of a surety or a guarantor. Guarantor hereby waives any and
all benefits and defenses under California Civil Code Section 2810 and agrees
that by doing so Guarantor shall be liable even if Brookdale California - RC had
no liability at the time of execution of the Note, the Security Instrument or
any other Loan Document, or thereafter ceases to be liable. Guarantor hereby
waives any and all benefits and defenses under California Civil Code Section
2809 and agrees that by doing so Guarantor's liability may be larger in amount
and more burdensome than that of Brookdale California - RC. Guarantor hereby
waives the benefit of all principles or provisions of law, statutory or
otherwise, which are or might be in conflict with the terms of this Guaranty and
agrees that Guarantor's obligations shall not be affected by any circumstances,
whether or not referred to in this Guaranty, which might otherwise constitute a
legal or equitable discharge of a surety or a guarantor. Guarantor hereby waives
the benefits of any right of discharge under any and all statutes or other laws
relating to guarantors or sureties and any other rights of sureties and
guarantors thereunder. Without limiting the generality of the foregoing,
Guarantor hereby waives, to the fullest extent permitted by law, diligence in
collecting the Indebtedness, presentment, demand for payment, protest, all
notices with respect to the Note, the Security Instrument and this Guaranty
which may be required by statute, rule of law or otherwise to preserve Lender's
rights against Guarantor under this Guaranty, including, but not limited to,
notice of acceptance, notice of any amendment of the Loan Documents, notice of
the occurrence of any default or Event of Default, notice of intent to
accelerate, notice of acceleration, notice of dishonor, notice of foreclosure,
notice of protest, and notice of the incurring by Brookdale California - RC of
any obligation or indebtedness. Guarantor also waives, to the fullest extent
permitted by law, all rights to require Lender to (a) proceed against Brookdale
California - RC or any other guarantor of Brookdale California - RC's payment or
performance with respect to the Indebtedness (an "Other Guarantor") (b) if
Brookdale California - RC or any Other Guarantor is a partnership, proceed
against any general partner of Brookdale California - RC or the Other Guarantor,
(c) proceed against or exhaust any collateral held by Xxxxxx to secure the
repayment of the Indebtedness, or (d) pursue any other remedy it may now or
hereafter have against Brookdale California - RC, or, if Brookdale California -
RC is a partnership, any general partner of Brookdale California - RC, including
any and all benefits under California Civil Code Sections 2845, 2849 and 2850.
6. Guarantor understands that the exercise by Xxxxxx of certain rights
and remedies contained in the Security Instrument (such as a nonjudicial
foreclosure sale) may affect or eliminate Guarantor's right of subrogation
against Brookdale California - RC and that Guarantor may therefore incur a
partially or totally nonreimburseable liability under this Guaranty.
Nevertheless, Guarantor hereby authorizes and empowers Lender to exercise, in
its sole and absolute discretion, any right or remedy, or any combination
thereof, which may then be available, since it is the intent and purpose of
Guarantor that the obligations under this Guaranty shall be absolute,
independent and unconditional under any and all circumstances. Guarantor
expressly waives any defense (which defense, if Guarantor had not given this
waiver, Guarantor might otherwise have) to a judgment against Guarantor by
reason of a nonjudicial foreclosure.
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Without limiting the generality of the foregoing, Guarantor hereby expressly
waives any and all benefits under (i) California Code of Civil Procedure Section
580a (which Section, if Guarantor had not given this waiver, would otherwise
limit Guarantor's liability after a nonjudicial foreclosure sale to the
difference between the obligations of Guarantor under this Guaranty and the fair
market value of the property or interests sold a such nonjudicial foreclosure
sale), (ii) California Code of Civil Procedure Sections 580b and 580d (which
Sections, if Guarantor had not given this waiver, would otherwise limit Lender's
right to recover a deficiency judgment with respect to purchase money
obligations and after a nonjudicial foreclosure sale, respectively), and (iii)
California Code of Civil Procedure Section 726 (which Section, if Guarantor had
not given this waiver, among other things, would otherwise require Lender to
exhaust all of its security before a personal judgment could be obtained for a
deficiency). Notwithstanding any foreclosure of the lien of the Security
Instrument, whether by the exercise of the power of sale contained in the
Security Instrument, by an action for judicial foreclosure or by Xxxxxx's
acceptance of a deed in lieu of foreclosure, Guarantor shall remain bound under
this Guaranty.
7. In accordance with Section 2856 of the California Civil Code,
Guarantor also waives any right or defense based upon an election of remedies by
Xxxxxx, even though such election (e.g., nonjudicial foreclosure with respect to
any collateral held by Lender to secure repayment of the Indebtedness) destroys
or otherwise impairs the subrogation rights of Guarantor or the right of
Guarantor (after payment of the obligations guaranteed by Guarantor under this
Guaranty) to proceed against Brookdale California - RC for reimbursement, or
both, by operation of Section 580d of the Code of Civil Procedure or otherwise.
8. In accordance with Section 2856 of the California Civil Code,
Guarantor waives any and all other rights and defenses available to Guarantor by
reason of Sections 2787 through 2855, inclusive, of the California Civil Code,
including any and all rights or defenses Guarantor may have by reason of
protection afforded to Brookdale California - RC with respect to any of the
obligations of Guarantor under this Guaranty pursuant to the antideficiency or
other laws of the State of California limiting or discharging Brookdale
California - RC's Indebtedness, including Sections 580a, 580b, 580d, and 726 of
the California Code of Civil Procedure.
9. In accordance with Section 2856 of the California Civil Code,
Guarantor agrees to withhold the exercise of any and all subrogation and
reimbursement rights against Brookdale California - RC, against any other
person, and against any collateral or security for the Indebtedness, including
any such rights pursuant to Sections 2847 and 2848 of the California Civil Code,
until the Indebtedness has been indefeasibly paid and satisfied in full, all
obligations owed to Lender under the Loan Documents have been fully performed,
and Lender has released, transferred or disposed of all of its right, title and
interest in such collateral or security.
10. At any time or from time to time and any number of times, without
notice to Guarantor and without affecting the liability of Guarantor, (a) the
time for payment of the principal of or interest on the Indebtedness may be
extended or the Indebtedness may be renewed
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in whole or in part; (b) the time for Brookdale California - RC's performance of
or compliance with any covenant or agreement contained in the Note, the Security
Instrument or any other Loan Document, whether presently existing or hereinafter
entered into, may be extended or such performance or compliance may be waived;
(c) the maturity of the Indebtedness may be accelerated as provided in the Note,
the Security Instrument, or any other Loan Document; (d) the Note, the Security
Instrument, or any other Loan Document may be modified or amended by Lender and
Brookdale California - RC in any respect, including, but not limited to, an
increase in the principal amount; and (e) any security for the Indebtedness may
be modified, exchanged, surrendered or otherwise dealt with or additional
security may be pledged or mortgaged for the Indebtedness.
11. If more than one person executes this Guaranty, the obligations of
those persons under this Guaranty shall be joint and several. Lender, in its
sole and absolute discretion, may (a) bring suit against Guarantor, or any one
or more of the persons constituting Guarantor, and any Other Guarantor, jointly
and severally, or against any one or more of them; (b) compromise or settle with
any one or more of the persons constituting Guarantor for such consideration as
Lender may deem proper; (c) release one or more of the persons constituting
Guarantor, or any Other Guarantor, from liability; and (d) otherwise deal with
Guarantor and any Other Guarantor, or any one or more of them, in any manner,
and no such action shall impair the rights of Lender to collect from Guarantor
any amount guaranteed by Guarantor under this Guaranty. Nothing contained in
this paragraph shall in any way affect or impair the rights or obligations of
Guarantor with respect to any Other Guarantor.
12. Any indebtedness of Brookdale California - RC held by Guarantor now
or in the future is and shall be subordinated to the Indebtedness and any such
indebtedness of Brookdale California - RC shall be collected, enforced and
received by Guarantor, as trustee for Lender, but without reducing or affecting
in any manner the liability of Guarantor under the other provisions of this
Guaranty.
13. Guarantor shall have no right of, and hereby waives any claim for,
subrogation or reimbursement against Brookdale California - RC or any general
partner of Brookdale California - RC by reason of any payment by Guarantor under
this Guaranty, whether such right or claim arises at law or in equity or under
any contract or statute, until the Indebtedness has been paid in full and there
has expired the maximum possible period thereafter during which any payment made
by Brookdale California - RC to Lender with respect to the Indebtedness could be
deemed a preference under the United States Bankruptcy Code.
14. If any payment by Brookdale California - RC is held to constitute a
preference under any applicable bankruptcy, insolvency, or similar laws, or if
for any other reason Lender is required to refund any sums to Brookdale
California - RC, such refund shall not constitute a release of any liability of
Guarantor under this Guaranty. It is the intention of Xxxxxx and
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Guarantor that Guarantor's obligations under this Guaranty shall not be
discharged except by Guarantor's performance of such obligations and then only
to the extent of such performance.
15. Guarantor shall from time to time, upon request by Xxxxxx, deliver
to Lender such financial statements as Lender may reasonably require.
16. Lender may assign its rights under this Guaranty in whole or in
part and upon any such assignment, all the terms and provisions of this Guaranty
shall inure to the benefit of such assignee to the extent so assigned. The terms
used to designate any of the parties herein shall be deemed to include the
heirs, legal representatives, successors and assigns of such parties; and the
term "Lender" shall include, in addition to Lender, any lawful owner, holder or
pledgee of the Note.
17. This Guaranty and the other Loan Documents represent the final
agreement between the parties and may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreements. There are no unwritten oral
agreements between the parties. All prior or contemporaneous agreements,
understandings, representations, and statements, oral or written, are merged
into this Guaranty and the other Loan Documents. Guarantor acknowledges that it
has received copies of the Note and all other Loan Documents. Neither this
Guaranty nor any of its provisions may be waived, modified, amended, discharged,
or terminated except by an agreement in writing signed by the party against
which the enforcement of the waiver, modification, amendment, discharge, or
termination is sought, and then only to the extent set forth in that agreement.
18. Guarantor agrees that any controversy arising under or in relation
to this Guaranty shall be litigated exclusively in the jurisdiction where the
Land is located (the "Property Jurisdiction"). The state and federal courts and
authorities with jurisdiction in the Property Jurisdiction shall have exclusive
jurisdiction over all controversies which shall arise under or in relation to
this Guaranty, the Note, the Security Instrument or any other Loan Document.
Guarantor irrevocably consents to service, jurisdiction, and venue of such
courts for any such litigation and waives any other venue to which it might be
entitled by virtue of domicile, habitual residence or otherwise.
19. XXXXXXXXX AND XXXXXX EACH (A) AGREES NOT TO ELECT A TRIAL BY JURY
WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS GUARANTY OR THE RELATIONSHIP
BETWEEN THE PARTIES AS GUARANTOR AND XXXXXX THAT IS TRIABLE OF RIGHT BY A JURY
AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE TO THE
EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO
TRIAL BY JURY IS SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND VOLUNTARILY WITH
THE BENEFIT OF COMPETENT LEGAL COUNSEL.
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20. Any notice, demand, request, statement or consent made hereunder
shall be in writing, signed by the party giving such notice, request, demand,
statement, or consent, and shall be deemed to have been properly given when
either delivered personally, delivered to a reputable overnight delivery service
providing a receipt or deposited in the United States mail, postage prepaid and
registered or certified return receipt requested, at the address set forth
below, or at such other address within the continental United States of America
as may theretofore have been designated in writing. The effective date of any
notice given as aforesaid shall be the date of personal service, one (1)
Business Day (as defined in the Security Instrumnet) after delivery to such
overnight delivery service, or three (3) Business Days after being deposited in
the United States mail, whichever is applicable. For purposes hereof, the
addresses are as follows:
If to Lender: Xxxxxx Financial Group, Inc.
0000 Xxxxxxxxxx Xxxxxx Xxxx, #000X
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Mortgage Servicing
If to Guarantor: Brookdale Living Communities, Inc.
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
With a copy to: Brookdale Living Communities, Inc.
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
ATTACHED EXHIBIT. The following Exhibit is attached to this Guaranty:
Exhibit A Modifications to Guaranty
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IN WITNESS WHEREOF, Xxxxxxxxx has signed and delivered this Guaranty or
has caused this Guaranty to be signed and delivered by its duly authorized
representative.
BROOKDALE LIVING COMMUNITIES, INC.
a Delaware corporation
By: ----------------------------------
Its: ----------------------------------
STATE OF ------------)
)
COUNTY OF -----------)
On December ---, 1998, before me, -----------------------, personally
appeared ---------------------, the --------------------- of Brookdale Living
Communities Inc., a Delaware corporation, personally know to me (or proved to me
on the basis of satisfactory evidence) to be the person whose name is subscribed
to the within instrument and acknowledged to me that he/she executed same in the
authorized capacity, and that his/her signature on the instrument the person, or
the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
-----------------------------------------
Notary Public
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