GUARANTY OF COMPLETION
made by
BROOKDALE LIVING COMMUNITIES, INC.
as guarantor,
in favor of
BANC ONE CAPITAL PARTNERS IV, LTD.
Dated as of June 17, 1998
GUARANTY OF COMPLETION
This GUARANTY OF COMPLETION (this "Guaranty"), dated as of June 17,
1998, made by BROOKDALE LIVING COMMUNITIES, INC. , a Delaware corporation,
having an office at 00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000
("Guarantor"), in favor of BANC ONE CAPITAL PARTNERS IV, LTD., an Ohio limited
liability company, having an address at 000 Xxxx Xxx Xxxxxx, Xxxxxxxx, Xxxx
00000, Attention: Xxxx X. Xxxxx (together with its successors and assigns,
"Lender").
R E C I T A L S:
A. Pursuant to that certain Loan Agreement dated as of the date
hereof (as the same may be amended, modified, supplemented or replaced from time
to time, the "Loan Agreement") by and between AH Michigan Subordinated, LLC, an
Ohio limited liability company ("Borrower") and Lender, Lender has agreed to
make a loan (the "Loan") to Borrower in the original principal amount of
$11,000,776, subject to the terms and conditions of the Loan Agreement;
B. As a condition to Lender's making the Loan, Lender is requiring
that Guarantor execute and deliver to Lender this Guaranty; and
C. Guarantor hereby acknowledges that Guarantor will
materially benefit from
Lender's agreeing to make the Loan;
NOW, THEREFORE, in consideration of the premises set forth herein and
as an inducement for and in consideration of the agreement of Lender to make the
Loan pursuant to the Loan Agreement, Guarantor hereby agrees, covenants,
represents and warrants to Lender as follows:
1. Definitions.
(a) All capitalized terms used and not defined herein shall have
the respective meanings given such terms in the Loan Agreement.
(b) The term "including" means including without limitation.
(c) "Building Loan Agreement" has the meaning set forth in the
Senior Loan Documents.
(d) "Governmental Authorities" has the meaning set forth in the
Senior Loan Documents.
(e) "Guaranty Termination Date" means the date on which
Substantial Completion has occurred and all costs, expenses and liabilities
incurred in connection therewith (including, without limitation, for labor,
materials and services)
have been paid in full (except to the
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extent to be paid for from Retainage or other sums are then held or reserved by
Senior Lender but not yet disbursed in accordance with the Building Loan
Agreement).
(f) "Liens" has the meaning set forth in the Senior Loan
Documents.
(g) "Owner" means AH Michigan Owner Limited
Partnership, an Ohio
limited partnership.
(h) "Permitted Encumbrances" has the meaning set forth in the
Senior Loan Documents.
(i) "Person" has the meaning set forth in the Senior Loan
Documents.
(j) "Plans" has the meaning set forth in the Senior Loan
Documents.
(k) "Property" has the meaning set forth in the Senior Loan
Documents.
(l) "Retainage" has the meaning set forth in the Senior Loan
Documents.
(m) "Senior Lender" means Nomura Asset Capital
Corporation, and its
successors and assigns.
(n) "Senior Loan" shall mean the loan from Senior Lender to
Owner for the acquisition, development and construction of the Project, in
an amount of up to $26,625,000.
(o) "Senior Loan Documents" shall mean the loan documents
evidencing or securing the Senior Loan.
(p) "Substantial Completion" has the meaning set forth in the
Senior Loan Documents.
2. Guaranty.
(a) Subject to Section 3 below, Guarantor hereby irrevocably,
absolutely and unconditionally guarantees to Lender the prompt and complete
observance, fulfillment and performance of all of the obligations of the
Borrower pursuant to Section 6.1(n) of the Loan Agreement. The obligations which
are the subject of the guaranty referred to in this Section 2(a) are hereinafter
collectively referred to as the "Guarantied Obligations".
(b) Subject to Section 3 below, without limiting the generality
of the provisions of Section 2(a), Guarantor hereby irrevocably, absolutely and
unconditionally guarantees to Lender that Borrower shall cause Owner and
Manager, in accordance with the terms of the Building Loan Agreement, to fully
and punctually pay and discharge (i) any and all costs, expenses and liabilities
for or incurred in connection with the Guarantied Obligations; (ii) all claims
and
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demands for labor, materials and services used or incurred in connection with
the Guarantied Obligations which are or may become due and payable, or, if
unpaid, are or may become Liens on the Property or any part thereof; and (iii)
any Liens in favor of any and all Persons furnishing materials, labor or
services for or in connection with the Guarantied Obligations such that the
Property shall be and remain free and clear of any and all liens other than
Permitted Encumbrances, subject, however, to Owner's and Manager's rights, if
any, set forth in the Building Loan Agreement with regard to the contesting of
Liens.
(c) If Borrower does not perform the Guarantied Obligations as
provided in paragraphs (a) and (b) of this Section 2, then upon receipt of
demand from Lender:
(i) subject to Section 3 hereof, Guarantor shall, if
requested by Lender (which request Lender may make or not make in its sole
discretion), perform and complete the Guarantied Obligations or cause the
Guarantied Obligations to be performed and completed, in accordance with
the requirements of the Building Loan Agreement; and
(ii) if Guarantor fails to perform the Guarantied Obligations
in accordance with this Guaranty (whether or not requested to do so
pursuant to subsection (c)(i) above) then, to the extent that Lender shall
(A) cause any Guarantied Obligations to be performed, (B) pay any costs,
expenses or liabilities in connection with the Guarantied Obligations, or
(c) cause any Lien, claim or demand to be released or paid or bonded,
Guarantor shall, upon demand by Lender, reimburse Lender for all sums paid
and all costs, expenses or liabilities incurred by Lender in connection
therewith. All such sums shall be payable by Guarantor to Lender on demand
and without reduction for any offset, claim, counterclaim or defense.
(d) Guarantor hereby agrees to indemnify, defend and save
harmless Lender from and against any and all costs, losses, liabilities, claims,
causes of action, expenses and damages, including, without limitation,
reasonable attorneys' fees and disbursements, which Lender may suffer or which
otherwise may arise by reason of the Borrower's failure to fulfill its
obligations under the Loan Agreement with respect to the Guarantied Obligations,
irrespective of whether such costs, losses, liabilities, claims, causes of
action, expenses or damages are incurred by Lender prior or subsequent to
Lender's declaring the principal, interest and other sums evidenced or secured
by the Loan Documents to be due and payable.
(e) Guarantor hereby agrees that, notwithstanding any provisions
to the contrary in any Loan Document limiting the recourse of Lender to
collateral encumbered by the Loan Documents, or limiting the rights of Lender to
obtain a deficiency judgment against Borrower, Guarantor shall be fully and
personally liable with respect to the covenants, representations, warranties,
guaranties, agreements and indemnities of Guarantor under this Guaranty.
(f) Notwithstanding anything to the contrary contained herein or
in any other Loan Documents, and subject to the provisions of Section 6(i), all
of Guarantor's obligations under this Guaranty (including the Guarantied
Obligations) shall terminate on the Guaranty
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Termination Date, provided that Guarantor's obligations under clauses (ii) and
(iii) of Section 2(b) above relating to labor, materials and services provided,
furnished or performed at or to the Property shall continue with respect to any
claims, demands and Liens referred to therein, whether asserted before or after
the Guaranty Termination Date.
3. Intentionally Omitted.
4. Representations and Warranties. Guarantor hereby represents and
warrants to Lender as follows (which representations and warranties shall be
given as of the date hereof and shall survive the execution and delivery of this
Guaranty):
(a) Organization, Authority and Execution. Guarantor is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, and has all necessary power and authority to own its
properties and to conduct its business as presently conducted or proposed to be
conducted and to enter into and perform this Guaranty and all other agreements
and instruments to be executed by it in connection herewith. This Guaranty has
been duly executed and delivered by Guarantor.
(b) Enforceability. This Guaranty constitutes a legal, valid and
binding obligation of Guarantor, enforceable against Guarantor in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally.
(c) No Violation. The execution, delivery and
performance by Guarantor
of the Guarantied Obligations has been duly authorized by all
necessary action, and do not and will
not violate any law, regulation, order, writ, injunction or decree of any court
or governmental body, agency or other instrumentality applicable to Guarantor in
effect on the date hereof, or result in a breach of any of the terms, conditions
or provisions of, or constitute a default under, or result in the creation or
imposition of any mortgage, Lien, charge or encumbrance of any nature whatsoever
upon any of the assets of Guarantor pursuant to the terms of Guarantor's
certificate of incorporation or by-laws, or any mortgage, indenture, agreement
or instrument to which Guarantor is a party or by which it or any of its
properties is bound. Guarantor is not in default under any other guaranty which
it has provided to Lender.
(d) No Litigation. There are no actions, suits or proceedings at
law or at equity, pending or, to Guarantor's best knowledge, threatened against
or affecting Guarantor or which involve the validity or enforceability of this
Guaranty or with respect to which an adverse decision would materially adversely
affect the financial condition of Guarantor or the ability of Guarantor to
perform any of the Guarantied Obligations. Guarantor is not in default beyond
any applicable grace or cure period with respect to any order, writ, injunction,
decree or demand of any Governmental Authority which would materially adversely
affect the financial condition of Guarantor or the ability of Guarantor to
perform any of its obligations under this Guaranty.
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(e) Consents. All consents, approvals, orders or authorizations
of, or registrations, declarations or filings with, all Governmental Authorities
(collectively, the "Consents") that are required in connection with the valid
execution, delivery and performance by Guarantor of this Guaranty have been
obtained or will be obtained when required.
(f) Financial Statements and Other Information. All financial
statements of Guarantor heretofore delivered to Lender are true and correct in
all material respects and fairly present the financial condition of Guarantor as
of the respective dates thereof, and no materially adverse change has occurred
in the financial conditions reflected therein since the respective dates
thereof. None of the aforesaid financial statements or any certificate or
statement furnished to Lender by or on behalf of Guarantor in connection with
the transactions contemplated hereby, and none of the representations and
warranties in this Guaranty contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
contained therein or herein not misleading. Guarantor is not insolvent within
the meaning of the United States Bankruptcy Code or any other in any material
respect applicable law, code or regulation, and the execution, delivery and
performance of this Guaranty will not render Guarantor insolvent.
(g) Consideration. Guarantor is receiving fair consideration in
return for giving this Guaranty.
5. Financial Statements. Guarantor shall deliver to Lender, (a)
within one hundred twenty (120) days after the end of each fiscal year of
Guarantor, a complete copy of Guarantor's annual financial statements audited by
a "big six" accounting firm or another independent certified public accountant
reasonably acceptable to Lender, (b) within forty-five (45) days after the end
of each fiscal quarter of Guarantor, financial statements (including a balance
sheet as of the end of such fiscal quarter and a statement of income and expense
for such fiscal quarter) certified by the Chief Financial Officer or President
of Guarantor and in form, content, level of detail and scope reasonably
satisfactory to Lender, and (c) thirty (30) days after request by Lender, such
other financial information with respect to Guarantor as Lender may reasonably
request. Guarantor's obligation to deliver this information to Lender shall
terminate on the Guaranty Termination Date.
6. Unconditional Character of Obligations of
Guarantor.
(a) Subject to Section 3 above, the obligations of Guarantor
hereunder shall be irrevocable, absolute and unconditional, irrespective of the
validity, regularity or enforceability, in whole or in part, of the other Loan
Documents or any provision thereof, or the absence of any action to enforce the
same, any waiver or consent with respect to any provision thereof, the recovery
of any judgment against Borrower, Guarantor, or any other Person or any action
to enforce the same, any failure or delay in the enforcement of the obligations
of Borrower under the other Loan Documents or Guarantor under this Guaranty, or
any setoff, counterclaim, and irrespective of any other circumstances which
might otherwise limit recourse against Guarantor by Lender or constitute a legal
or equitable discharge or defense of a guarantor or surety. Lender may enforce
the obligations of Guarantor under this Guaranty by a proceeding at law, in
equity or otherwise, independent of any foreclosure or similar proceeding or any
deficiency action against Borrower, or any other Person at any time. This
Guaranty is a guaranty of payment and performance and not a guaranty of
collection. Except as otherwise provided herein or in any of the other Loan
Documents or the Intercreditor Agreement, and to the extent permitted by law,
Guarantor waives
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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,
or any other Person, or to exhaust
any security for the performance of the Guarantied Obligations or any other
obligations of Borrower, or any other Person, or any protest, presentment,
notice of default or other notice or demand whatsoever (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 2(f)
above.
(b) The Guarantied Obligations, and the rights of Lender to
enforce the same by proceedings, whether by action at law, suit in equity or
otherwise, shall not be in any way affected by any of the following:
(i) any insolvency, bankruptcy, liquidation,
reorganization, readjustment, composition, dissolution, receivership,
conservatorship, winding up or other similar proceeding involving or
affecting Borrower, Guarantor or any other Person;
(ii) any failure by Lender or any other Person, whether or
not without fault on its part, to perform or comply with any of the terms
of the Loan Agreement, or any other Loan Documents, or any document or
instrument relating thereto;
(iii) the sale, transfer or conveyance of the Property or any
interest therein to any Person, whether now or hereafter having or
acquiring an interest in the Property or any interest therein and whether
or not pursuant to any foreclosure, trustee sale or similar proceeding
against Owner, Manager, or the Property or any interest therein;
(iv) the conveyance to Senior Lender, any Affiliate of Senior
Lender or Senior Lender's nominee of the Property or any
interest therein by a deed-in-lieu
of foreclosure;
(v) the release of Borrower, or any other Person from the
performance or observance of any of the agreements, covenants, terms or
conditions contained in any of the Loan Documents by operation of law or
otherwise; or
(vi) the release in whole or in part of any security for the
Guarantied Obligations or the Loan.
(c) Except as otherwise specifically provided in this Guaranty,
Guarantor hereby expressly and irrevocably waives all defenses in an action
brought by Lender to enforce this Guaranty based on claims of waiver, release,
surrender, alteration, compromise or equitable discharge and all setoffs,
reductions, or impairments, whether arising hereunder or otherwise.
(d) Lender may deal with Borrower in the same manner and as
freely as if this Guaranty did not exist and shall be entitled, among other
things, to grant Borrower, or any other Person such extension or extensions of
time to perform any act or acts as may be deemed
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advisable by Lender, at any time and from time to time, without terminating,
affecting or impairing the validity of this Guaranty or the Guarantied
Obligations.
(e) No compromise, alteration, amendment, modification,
extension, indulgence, renewal, release or other change of, or waiver,
suspension, consent, compromise, delay, omission, failure to act, forbearance or
other action with respect to, any liability or obligation under or with respect
to, or of any of the terms, covenants or conditions of, the Loan Documents or
any amendment, modification or other change of the Plans or any legal
requirement shall in any way alter, impair or affect any of the Guarantied
Obligations or Lender's rights hereunder, and Guarantor agrees that if any Loan
Document or the Plans are modified with Lender's consent, the Guarantied
Obligations shall automatically be deemed modified to include such modifications
without the necessity of notice to Guarantor except as may otherwise be required
under the Loan Agreement.
(f) Lender may proceed to protect and enforce any or all of its
rights under this Guaranty by suit in equity or action at law, whether for the
specific performance of any covenants or agreements contained in this Guaranty
or otherwise, or to take any action authorized or permitted under applicable
law, and shall be entitled to require and enforce the performance of all acts
and things required to be performed hereunder by Guarantor. Each and every
remedy of Lender shall, to the extent permitted by law, be cumulative and shall
be in addition to any other remedy given hereunder or now or hereafter existing
at law or in equity. No single exercise of Lender's power to bring any action or
institute any proceeding shall be deemed to exhaust such power, but such power
shall continue undiminished and may be exercised from time to time as often as
Lender may elect until the earlier of the Guaranty Termination Date or the date
that all the Guarantied Obligations have been satisfied. Lender shall be under
no obligation to take any action and shall not be liable for any action taken or
any failure to take action or any delay in taking action against Guarantor,
Borrower or any other Person or otherwise with respect to the Guarantied
Obligations.
(g) No waiver shall be deemed to have been made by Lender of any
rights hereunder unless the same shall be in writing and signed by Lender, and
any such waiver shall be a waiver only with respect to the specific matter
involved and shall in no way impair the rights of Lender or the obligations of
Guarantor to Lender in any other respect or at any other time.
(h) At the option of Lender, Guarantor may be joined in any
action or proceeding commenced by Lender against Borrower in connection with or
based upon any other Loan Documents and recovery may be had against Guarantor in
such action or proceeding or in any independent action or proceeding against
Guarantor only to the extent of Guarantor's liability hereunder, without any
requirement that Lender first assert, prosecute or exhaust any remedy or claim
against Borrower, or any other Person, or any security for the obligations of
Borrower, or any other Person.
(i) 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
7
proceeding involving or affecting Borrower or Guarantor, all as though such
payment had not been made.
(j) For so long as the Loan is outstanding, Guarantor hereby
expressly waives any and all of its rights of subrogation, reimbursement,
indemnity and recourse against Borrower and/or Owner. Guarantor shall not be
deemed a "creditor" of the Borrower with respect to the Guarantied Obligations
as said term "creditor" is defined in the United States Bankruptcy Code, as
amended. If any amount shall be paid to Guarantor on account of such subrogation
rights at any time when any such sums due and owing to Lender shall not have
been fully paid, such amount shall be paid by Guarantor to Lender for credit and
application against such sums due and owing to Lender. Notwithstanding the
foregoing, the Guarantor and its affiliates shall have the right to be
reimbursed by Owner in accordance with the terms and conditions of the
Management Agreement and the Development Agreement for their out-of-pocket costs
or fees pursuant thereto unless at the time of such payment there exists an
Event of Default under the Loan Agreement. Anything herein to the contrary,
notwithstanding, the provisions of this Section 6(j) do not create any
obligation on the part of the Owner to the Lender.
(k) Subject to Section 2(f) hereof, the Guarantied Obligations
shall survive a foreclosure, deed-in-lieu of foreclosure or similar proceeding
involving the Property and the exercise by Senior Lender of any of all of its
remedies pursuant
to the Senior Loan Documents.
7. Intentionally Omitted.
8. Entire Agreement/Amendments. This instrument represents the entire
agreement between the parties with respect to the subject matter hereof. The
terms of this Guaranty shall not be waived, altered, modified, amended,
supplemented or terminated in any manner whatsoever except by written instrument
signed by Lender and Guarantor.
9. Successors and Assigns. This Guaranty shall be binding upon
Guarantor, and Guarantor's successors and assigns, may not be assigned or
delegated by Guarantor and shall inure to the benefit of Lender and its
successors and assigns.
10. Applicable Law, Waiver of Jury Trial, Consent to
Venue.
(a) This Guaranty was partially negotiated in the State of
Ohio, and accepted by Lender in the State of Ohio, which State the parties agree
has a substantial relationship to the parties and to the underlying transaction
embodied hereby, and in all respects, this Guaranty shall be governed by, and
construed in accordance with, the substantive laws of the State of Ohio.
(b) THE GUARANTOR AND THE LENDER, AFTER CONSULTING OR HAVING
HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY RELATED INSTRUMENT OR
AGREEMENT, OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, OR ANY
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COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
THE GUARANTOR OR THE LENDER. THE GUARANTOR AND THE LENDER SHALL NOT SEEK TO
CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY ACTION IN WHICH A JURY TRIAL HAS
BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT
BEEN WAIVED UNLESS FAILURE TO SO CONSOLIDATE WOULD RESULT IN A MANDATORY LOSS OF
SUCH CLAIM. IN THE EVENT OF A DISPUTE UNDER THIS AGREEMENT, THE GUARANTOR AND
THE LENDER HEREBY AGREE THAT EXCLUSIVE JURISDICTION AND VENUE LIES IN A COURT OF
COMPETENT JURISDICTION IN FRANKLIN COUNTY, OHIO. THESE PROVISIONS SHALL NOT BE
DEEMED TO HAVE BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY THE GUARANTOR OR
THE LENDER EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY SAME.
11. Section Headings. The headings of the sections and paragraphs of
this Guaranty have been inserted for convenience of reference only and shall in
no way define, modify, limit or amplify any of the terms or provisions hereof.
12. Severability. Any provision of this Guaranty which may be
determined by any competent authority to be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, Guarantor hereby
waives any provision of law which renders any provision hereof prohibited or
unenforceable in any respect.
13. Intentionally Omitted.
14. Other Guaranties. The obligations of Guarantor hereunder are
separate and distinct from, and in addition to, the obligations of Guarantor now
or hereafter arising under one or more other guaranties, pursuant to which
Guarantor has guaranteed the payment and performance of certain other
obligations of Borrower described therein.
15. Notices. All notices, demands, requests, consents, approvals or
other communications (collectively called "Notices") required or permitted to be
given hereunder to Lender or Guarantor or which are given to Lender or Guarantor
with respect to this Guaranty shall be in writing and shall be (a) sent by
United States registered or certified mail, return receipt requested, postage
prepaid, addressed as set forth below, (b) sent by a national overnight courier
or delivery service or (c) personally delivered with receipt acknowledged to
such address, or in either case, to such other address(es) as the party in
question shall have specified most recently by like Notice.
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If to Lender, to:
Banc One Capital Partners IV, Ltd.
000 Xxxx Xxx Xxxxxx
00xx Xxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxx
with a copy to:
Banc One Capital Markets, Inc.
000 Xxxx Xxx Xxxxxx
00xx Xxxxx
Xxxxxxxx, Xxxx 00000
Attention: Legal Department
If to Guarantor, to:
Brookdale Living Communities, Inc.
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Xx.
with a copy to:
Brookdale Living Communities, Inc.
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
with a copy to:
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq.
Notices which are given in the manner aforesaid shall be deemed to have been
given or served for all purposes hereunder (i) on the date on which such notice
shall have been personally delivered as aforesaid, (ii) on the date of delivery
by overnight carrier or mail as evidenced by the return receipt therefor, or
(iii) on the date of failure to deliver by reason of refusal to accept delivery
or changed address of which no Notice was given.
16. Guarantor's Receipt of Loan Documents. Guarantor by its execution
hereof acknowledges receipt of true copies of all of the Loan Documents.
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17. Interest; Expenses.
(a) If Guarantor fails to pay all or any sums due hereunder upon
demand by Lender, the amount of such sums payable by Guarantor to Lender shall
bear interest from the date of demand until paid at the Default Rate in effect
from time to time.
(b) Guarantor hereby agrees to pay all costs, charges and
expenses, including, without limitation, reasonable attorneys' fees and
disbursements, that may be incurred by Lender in enforcing the covenants,
agreements, obligations and liabilities of Guarantor under this Guaranty.
18. Intentionally Omitted.
19. Intentionally Omitted.
20. Intentionally Omitted.
21. Intercreditor Agreement.
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
AND
ALL RIGHTS AND REMEDIES OF LENDER WITH RESPECT TO THE LOAN, THE
GUARANTIED OBLIGATIONS OR ANY COLLATERAL THEREFOR ARE EACH
AND
ALL SUBJECT TO THE TERMS AND CONDITIONS OF THE INTERCREDITOR
AGREEMENT.
[Remainder of page intentionally left blank; signature page
follows.]
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IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the
date first above written.
BROOKDALE LIVING COMMUNITIES,
INC., a Delaware corporation
By:
Name: Xxxxxx X.
Xxxxxxxx, Xx.
Title: Executive Vice
President
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AGREED AND ACKNOWLEDGED
ONLY FOR SECTION 10(b)
BANC ONE CAPITAL PARTNERS IV, LTD.
By: BOCP Holdings Corporation, its Manager
By: ______________________________________
Name: Xxxxxxx X. Xxxx
Title: Authorized Signer
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