Exhibit 10.65.4
GUARANTY
For a valuable consideration, receipt of which is hereby acknowledged, the
undersigned, EMERITUS CORPORATION, a Washington corporation (hereinafter called
"Guarantor"), absolutely, unconditionally and irrevocably guarantees (a) payment
to GUARANTY FEDERAL BANK, F.S.B., a federal savings bank (hereinafter called
"Creditor") at the address designated in the Note (as hereinafter defined) for
payment thereof or as such address may be changed as provided in the Note of all
indebtedness of EMERITUS PROPERTIES X, LLC, a Washington limited liability
company (hereinafter called "Debtor") to Creditor under the promissory note
dated of even date herewith, in the original principal amount of Five Million
Five Hundred Forty Thousand and No/ 100 Dollars ($5,540,000.00), payable to the
order of Creditor, and all modifications, renewals and extensions (including,
without limitation, compromises, accelerations or otherwise changing the rate of
interest) of and substitutions for said promissory note [said promissory note
and all modifications, renewals and extensions thereof (including, without
limitation, compromises, accelerations or otherwise changing the rate of
interest) and all substitutions therefor hereinafter called the "Note"],
together with all interest, attorneys' fees and collection costs provided in the
Note, and all indebtedness under and pursuant to the Deed of Trust (With
Security Agreement, Fixture Filing and Assignment of Leases and Rents)
(hereinafter called the "Deed of Trust") securing the payment of the Note, and
all other instruments evidencing, governing, securing or pertaining to such
indebtedness and obligations (all such indebtedness hereinafter called the
"Indebtedness"); (b) performance fully and promptly when due of all of the
covenants, agreements and other obligations undertaken by Debtor in respect of
(1) the Note and the Deed of Trust and all other instruments evidencing,
securing and/or relating to the loan evidenced by the Note, including without
limitation, the Loan Agreement of even date herewith between Debtor and Creditor
relating to the indebtedness evidenced by the Note (the "Loan Agreement") and
(2) the Hazardous Substances Remediation and Indemnification Agreement dated of
even date herewith made by Debtor in favor of Creditor (such covenants,
agreements and other obligations hereinafter called the "Obligations"); and (c)
payment of any and all costs, attorneys' fees and expenses incurred or expended
by Creditor in collecting any of the Indebtedness or due to any default in the
performance of the Obligations or in enforcing any right granted hereunder.
To the extent permitted by applicable law, Guarantor expressly waives
presentment for payment, demand, notice of demand and of dishonor and nonpayment
of the Indebtedness, notice of intention to accelerate the maturity of the
Indebtedness or any part thereof, notice of acceleration of the maturity of the
Indebtedness or any part thereof, notice of disposition of collateral, the
defense of impairment of collateral, the right to a commercially reasonable sale
of collateral, protest and notice of protest, diligence in collecting, and the
bringing of suit against any other party. Creditor shall be under no obligation
to notify Guarantor of its acceptance hereof or of any advances made or credit
extended on the faith hereof or the failure of Debtor to pay any of the
Indebtedness as it matures or any default in the performance of any of the
Obligations, or to use diligence in preserving the liability of any person on
the Indebtedness or the Obligations or in bringing suit to enforce
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collection of the Indebtedness or performance of the Obligations. To the extent
permitted by applicable law, Guarantor waives all defenses given to sureties or
guarantors at law or in equity other than the actual payment of the Indebtedness
and performance of the Obligations and all defenses based upon questions as to
the validity, legality or enforceability of the Indebtedness and/or the
Obligations and agrees that Guarantor shall be primarily liable hereunder.
Further, Guarantor, to the extent permitted by applicable law, waives any
defense based upon or arising out of a defense of Debtor or any other person to
recovery by Creditor of, or the unavailability to Creditor of, a deficiency
after nonjudicial sale of real or personal property, and any defense based upon
or arising out of RCW 61.24.100.
Creditor, without authorization from or notice to Guarantor and without
impairing, modifying, changing, releasing, limiting or affecting the liability
of Guarantor hereunder, may from time to time at its discretion and with or
without valuable consideration, alter, compromise, accelerate, renew, extend or
change the time or manner for the payment of any or all of the Indebtedness,
increase or reduce the rate of interest thereon, take and surrender security,
exchange security by way of substitution, or in any way it deems necessary take,
accept, withdraw, subordinate; alter, amend, modify or eliminate security, add
or release or discharge endorsers, guarantors, or other obligors, make changes
of any sort whatever in the terms of payment of the Indebtedness, in the
Obligations or in the manner of doing business with Debtor, or settle or
compromise with Debtor or any other person or persons liable on the Indebtedness
or the Obligations on such terms as it may see fit, and may apply all moneys
received from the Debtor or others, or from any security held (whether held
under a security instrument or not), in such manner upon the Indebtedness
(whether then due or not) as it may determine to be in its best interest,
without in any way being required to marshal securities or assets or to apply
all or any part of such moneys upon any particular part of the Indebtedness. It
is specifically agreed that Creditor is not required to retain, hold, protect,
exercise due care with respect thereto, perfect security interests in or
otherwise assure or safeguard any security for the Indebtedness; no failure by
Creditor to do any of the foregoing and no exercise or nonexercise by Creditor
of any other right or remedy of Creditor shall in any way affect any of
Guarantor's obligations hereunder or any security furnished by Guarantor or give
Guarantor any recourse against Creditor.
The liability of Guarantor hereunder shall not be modified, changed, released,
limited or impaired in any manner whatsoever on account of any or all of the
following: (a) the incapacity, death, disability, dissolution or termination of
Guarantor, Debtor, Creditor or any other person or entity; (b) the failure by
Creditor to file or enforce a claim against the estate (either in
administration, bankruptcy or other proceeding) of Debtor or any other person or
entity; (c) recovery from Debtor or any other person or entity becomes barred by
any statute of limitations or is otherwise prevented; (d) any defenses (except
payment of the Indebtedness and performance of the Obligations), set-offs or
counterclaims which may be available to Debtor or any other person or entity;
(e) any transfer or transfers of any of the property covered by the Deed of
Trust or any other instrument securing the payment of the Note; (f) any release
of Debtor, any co-Guarantor or any other person (other than Guarantor) primarily
or secondarily liable for the payment of the Indebtedness or the performance of
the Obligations or any part thereof; (g) any modifications, extensions,
amendments, consents,
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releases or waivers with respect to the Note, the Deed of Trust, any other
instrument now or hereafter securing the payment of the Note, or this Guaranty;
(h) any failure of Creditor to give any notice to Guarantor of any default under
the Note, the Deed of Trust, any other instrument securing the payment of the
Note, or this Guaranty (except to the extent any such notice is required
pursuant to the Guaranty or is required by applicable law and cannot validly be
waived by Guarantor); (i) Guarantor is or becomes liable for any indebtedness
giving by Debtor to Creditor other than under this Guaranty; or (j) any
impairment, modification, change, release or limitation of the liability of, or
stay of actions or lien enforcement proceedings against, Debtor, its property,
or its estate in bankruptcy resulting from the operation of any present or
future provision o t-the Federal Bankruptcy Code (hereinafter called the
"Bankruptcy Code") or other similar Federal or state statute, or from the
decision of any court.
Except for any requirements of applicable law that cannot validly be waived by
Guarantor, Creditor shall not be required to pursue any other remedies before
invoking the benefits of the guaranties contained herein, and specifically it
shall not be required to make demand upon or institute suit or otherwise pursue
its remedies against Debtor or any surety other than Guarantor or to proceed
against or give credit for any security now or hereafter existing for the
payment of any of the Indebtedness. Creditor may maintain an action on this
Guaranty without joining Debtor therein and without bringing a separate action
against Debtor.
If for any reason whatsoever other than payment and performance (including but
not limited to ultra xxxxx, lack of authority, illegality, force majeure, act of
God or impossibility) the Indebtedness or the Obligations cannot be enforced
against Debtor, such unenforceability shall in no manner affect the liability of
Guarantor hereunder and Guarantor shall be liable hereunder notwithstanding that
Debtor may not be liable for such Indebtedness or such Obligations and to the
same extent as Guarantor would have been liable if such Indebtedness or
Obligations had been enforceable against Debtor.
Guarantor absolutely and unconditionally covenants and agrees that in the event
that Debtor does not or is unable so to pay the Indebtedness or perform the
Obligations for any reason, including, without limitation, liquidation,
dissolution, receivership, conservatorship, insolvency, bankruptcy, assignment
for the benefit of creditors, sale of all or substantially all assets,
reorganization, arrangement, composition, or readjustment of, or other similar
proceedings affecting the status, composition, identity, existence, assets or
obligations of Debtor, or the disaffirmance or termination of any of the
Indebtedness or Obligations in or as a result of any such proceeding, Guarantor
shall pay the Indebtedness and perform the Obligations and no such occurrence
shall in any way affect Guarantor's obligations hereunder.
Should the status of Debtor change, this Guaranty shall continue and also cover
the lndebtedness and Obligations of Debtor under the nev status according to
the terms hereof.
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In the event any payment by Debtor to Creditor is held to constitute a
preference under the bankruptcy laws, or if for any other reason Creditor is
required to refund such payment or pay the amount thereof to any other party,
such payment by Debtor to Creditor shall not constitute a release of Guarantor
from any liability hereunder, but Guarantor agrees to pay such amount to
Creditor upon demand and this Guaranty shall continue to be effective or shall
be reinstated, as the case may be, to the extent of any such payment or
payments.
Except for any requirements of applicable law that cannot validly be waived by
Guarantor, Guarantor agrees that it shall not have (a) the right to the benefit
of, or to direct the application of, any security held by Creditor (including
the property covered by the Deed of Trust and any other instrument securing the
payment of the Note), any right to enforce any remedy which Creditor now has or
hereafter may have against Debtor, or any right to participate in any security
now or hereafter held by Creditor, or (b) any defense arising out of the
absence, impairment or loss of any right of reimbursement or subrogation or
other right or remedy of Guarantor against Debtor or against any security
resulting from the exercise or election of any remedies by Creditor (including
the exercise of the power of sale under the Deed of Trust), or any defense
arising by reason of any disability or other defense of Debtor or by reason of
the cessation, from any cause, of the liability of Debtor.
The payment by Guarantor of any amount pursuant to this Guaranty shall not in
any way entitle Guarantor to any right, title or interest (whether by way of
subrogation or otherwise) in and to any of the Indebtedness or any proceeds
thereof, or any security therefor, unless and until the full amount owing to
Creditor on the Indebtedness has been fully paid, but when the same has been
fully paid Guarantor shall be subrogated as to any payments made by it to the
rights of Creditor as against Debtor and/or any endorsers, sureties or other
guarantors.
Guarantor expressly subordinates its rights to payment of any indebtedness owing
from Debtor to Guarantor, whether now existing or arising at any time in the
future, to the prior right of Creditor to receive or require payment in full of
the Indebtedness and until payment in full of the Indebtedness (and including
interest accruing on the Note after any petition under the Bankruptcy Code,
which post-petition interest Guarantor agrees shall remain a claim that is prior
and superior to any claim of Guarantor notwithstanding any contrary practice,
custom or ruling in proceedings under the Bankruptcy Code generally), Guarantor
agrees not to accept any payment or satisfaction of any kind of indebtedness of
Debtor to Guarantor or any security for such indebtedness. If Guarantor should
receive any such payment, satisfaction or security for any indebtedness of
Debtor to Guarantor, Guarantor agrees forthwith to deliver the same to Creditor
in the form received, endorsed or assigned as may be appropriate for application
on account of, or as security for, the Indebtedness and until so delivered,
agrees to hold the same in trust for Creditor.
Notwithstanding anything to the apparent contrary contained herein, Guarantor
does not herein expressly or impliedly waive or release any rights of
subrogation that Guarantor may have against Debtor (except as same are expressly
subordinated as provided herein), rights of contribution that Guarantor may have
against any other guarantor of, or other person secondarily liable for, the
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payment of the Indebtedness or performance of the Obligations or rights of
reimbursement that Guarantor may have as against Debtor (except as same may be
limited herein).
It is the intent of Guarantor and Creditor in the execution and acceptance of
this Guaranty to contract in strict compliance with applicable usury law. In
furtherance thereof, Guarantor and Creditor stipulate and agree that none of the
terms and provisions contained in this Guaranty, or in any other instrument now
or hereafter executed in connection herewith, shall ever be construed to create
a contract to pay for the use, forbearance or detention of money, interest at a
rate in excess of the maximum interest rate permitted to be charged by
applicable law; Guarantor shall never be obligated or required to pay interest
on the Indebtedness at a rate in excess of the maximum interest that may be
lawfully charged under applicable law; and that the provisions of this paragraph
shall control over all other provisions of this Guaranty, and any other
instruments now or hereafter executed in connection herewith or any other oral
or written agreement which may be in apparent conflict herewith. Creditor
expressly disavows any intention to charge or collect excessive unearned
interest or finance charges in the event the maturity of the Indebtedness is
accelerated. If the maturity of the Note shall be accelerated for any reason or
if the principal of the Note is paid prior to the end of the term of the Note,
and as a result thereof the interest received from Guarantor for the actual
period of existence of the loan evidenced by the Note exceeds the amount of
interest at the applicable maximum lawful rate under applicable law, Creditor
shall, at its option, either refund to Guarantor the amount of such excess or
credit the amount of such excess against the principal balance of the Note then
outstanding and thereby shall render inapplicable any and all penalties of any
kind provided by applicable law as a result of such excess interest. In the
event that Creditor shall contract for, char5e or receive any amount or amounts
and/or any other thing of value from Guarantor which are determined to
constitute interest which would increase the effective interest rate on the
Indebtedness to a rate in excess of that permitted to be charged by applicable
law, all such amounts determined to constitute interest in excess of the lawful
rate shall, upon such determination, at the option of Creditor, be either
immediately returned to Guarantor or credited against the principal balance of
the Note then outstanding, in which event any and all penalties of any kind
under applicable law as a result of such excess interest shall be inapplicable.
By execution of this Guaranty, Guarantor acknowledges that Guarantor believes
the Indebtedness to be non-usurious and agrees that if, at any time, Guarantor
should have reason to believe that the Indebtedness is in fact usurious,
Guarantor will give Creditor notice of such condition and Guarantor agrees that
Creditor shall have ninety (90) days in which to make appropriate refund or
other adjustment in order to correct such condition it in fact such exists. The
term "applicable law" as used in this paragraph shall mean the laws of the State
of Texas or the laws of the United States, whichever laws allow the greater rate
of interest, as such laws now exist or may be changed or amended or come into
effect in the future.
Guarantor hereby represents, warrants and covenants to and with Creditor as
follows: (a) Guarantor is solvent, is not bankrupt and has no outstanding liens,
garnishments, bankruptcies or court actions which could render guarantor
insolvent or bankrupt, and there has not been filed by or against Guarantor a
petition in bankruptcy or a petition or answer seeking an assignment for the
benefit of creditors, the appointment of a receiver, trustee, custodian or
liquidator with respect to
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Guarantor or any substantial portion of Guarantor's property, reorganization,
arrangement, rearrangement, composition, extension, liquidation or dissolution
or similar relief under the Bankruptcy Code or any state law; (b) all reports,
financial statements and other financial and other data which have been or may
hereafter be furnished by Guarantor to Creditor in connection with this Guaranty
are or shall be true and correct in all material respects and do not and will
not omit to state any fact or circumstance necessary to make the statements
contained therein not misleading and do or shall fairly represent the financial
condition of Guarantor as of the dates and the results of Guarantor's operations
for the periods for which the same are furnished, and no material adverse change
has occurred since the dates of such reports, statements and other data in the
financial condition of Guarantor; (c) the execution, delivery and performance of
this Guaranty do not contravene, result in the breach of or constitute a default
under any mortgage, deed of trust, lease, promissory note, loan agreement or
other contract or agreement to which Guarantor is a party or by which Guarantor
or any of its properties may be bound or affected and do not violate or
contravene any law, order, decree, rule or regulation to which Guarantor is
subject; (d) there are no judicial or administrative actions, suits or
proceedings pending or, to the best of Guarantor's knowledge, threatened against
or affecting Guarantor or involving the validity, enforceability or priority of
this Guaranty; (e) Guarantor is duly incorporated and legally existing under the
laws of the state of its incorporation; ( this Guaranty constitutes the legal,
valid and binding obligation of Guarantor enforceable in accordance with its
terms; and (g) the execution and delivery of, and performance under, this
Guaranty are within Guarantor's powers and have been duly authorized by all
requisite action and are not in contravention of the powers of Guarantor's
charter, by-laws or other corporate papers.
Guarantor will deliver to Creditor within ninety (90) days after the close of
each fiscal year of Guarantor: (a) a statement of condition or balance sheet of
Guarantor as at the end of such fiscal year; (b) an annual operating statement
showing in reasonable detail all income and expenses of Guarantor for such
fiscal year; (c) a cash flow statement showing in reasonable detail all cash
flow of Guarantor for such fiscal year; and (d) a projected cash flow statement
showing in reasonable detail all projected cash flow for the then current fiscal
year. All of the foregoing shall be in scope and detail satisfactory to Creditor
and any or all of the foregoing shall be furnished quarterly, in addition to
annually, upon request of Creditor. The statements in (a), (b) and (c) above
shall be certified as to accuracy by an independent certified public accountant
or, with the consent of Creditor, by a representative of Guarantor acceptable to
Creditor. The statement described in (d) above shall contain a representation or
certification in form satisfactory to Creditor from a representative of
Guarantor acceptable to Creditor.
Where two or more persons or entities have executed this Guaranty, unless the
context clearly indicates otherwise, all references herein to "Guarantor" shall
mean the Guarantors hereunder or either or any of them. All of the obligations
and liability of said guarantors hereunder shall be joint and several. Suit may
be brought against said guarantors, jointly and severally, or against any one or
more of them, less than all, without impairing the rights of Creditor against
the other or others of said guarantors; and Creditor may compound with any one
or more of said guarantors for such sums or sum as it may see fit and/or release
such of said guarantors from all further liability to Creditor
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for such indebtedness without impairing the right of Creditor to demand and
collect the balance of such indebtedness from the other or others of said
guarantors not so compounded with or released; but it is agreed among said
guarantors themselves, however, that such compounding and release shall in
nowise impair the rights of said guarantors as among themselves.
The rights of Creditor are cumulative and shall not be exhausted by its exercise
of any of its rights hereunder or otherwise against Guarantor or by any number
of successive actions until and unless all Indebtedness has been paid, all
Obligations have been performed and each of the obligations of Guarantor
hereunder has been performed. The existence of this Guaranty shall not in any
way diminish or discharge the rights of Creditor under any prior or future
guaranty agreement executed by Guarantor.
All property of Guarantor now or hereafter in the possession or custody of or in
transit to Creditor for any purpose, including safekeeping, collection or
pledge, for the account of Guarantor, or as to which Guarantor may have any
right or power, shall be held by Creditor subject to a lien and security
interest in favor of Creditor to secure payment and performance of all
obligations and liabilities of Guarantor to Creditor hereunder. The balance of
every account of Guarantor with, and each claim_ of Guarantor against, Creditor
existing from time to time shall be subject to a lien and subject to set-off
against any and all liabilities of Guarantor to Creditor, and Creditor may, at
any time and from time to time at its option and without notice, appropriate and
apply toward the payment of any such liabilities the balance of each such
account or claim of Guarantor against Creditor.
Any notice or communication required or permitted hereunder shall be given in
writing, sent by (a) personal delivery, or (b) expedited delivery service with
proof of delivery, or (c) United States mail, postage prepaid, registered or
certified mail, or (d) prepaid telegram, telex or telecopy, sent to the intended
addressee at the address shown below, or to such other address or to the
attention of such other person as hereafter shall be designated in writing by
the applicable party sent in accordance herewith. Any such notice or
communication shall be deemed to have been given and received either at the time
of personal delivery or, in the case of delivery service or mail, as of the date
of first attempted delivery at the address and in the manner provided herein, or
in the case of telegram, telex or telecopy, upon receipt.
THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF GUARANTOR HEREUNDER SHALL IN ALL
RESPECTS BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF TEXAS (VITHOUT GIVING EFFECT TO TEXAS' PRINCIPLES OF CONFLICTS
OF LAW) AND THE LAW OF THE UNITED STATES APPLICABLE TO TRANSACTIONS IN SUCH
STATE. GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF
ANY TEXAS OR FEDERAL COURT SITTING IN DALLAS, TEXAS OVER ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OF THE LOAN
DOCUMENTS AND GUARANTOR HEREBY AGREES AND CONSENTS THAT IN ADDITION TO ANY
METHODS OF SERVICE OF PROCESS PROVIDED FOR UNDER
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APPLICABLE LAW ALL SERVICE OF PROCESS IN ANY SUCH SUIT ACTION OR PROCEEDING ANY
TEXAS OR FEDERAL COURT SITTING IN DALLAS, TEXAS MAY BE MADE BY CERTIFIED OR
REGISTERED MAIL, RETURN RECEIPT XXXXXXXXX DIRECTED TO GUARANTOR AT THE ADDRESS
OF GUARANTOR FOR THE GIVING OF NOTICES HEREUNDER AND SERVICE SO MADE SHALL BE
CONIPLETE FIVE 5 DAYS AFTER THE SAME SHALL HAVE BEEN SO MAILED.
Guarantor hereby expressly and unconditionally waives, in connection with any
suit, action or proceeding brought by Creditor in connection with this Guaranty
or any of the loan documents, any and every right it may have to (i) injunctive
relief, (ii) a trial by jury, (iii) interpose any counterclaim therein (other
than a compulsory counterclaim) and (iv) have the same consolidated with any
other or separate suit, action or proceeding. Nothing herein contained shall
prevent or prohibit Guarantor from instituting or maintaining a separate action
against Creditor with respect to any asserted claim.
This Guaranty may be executed in any number of counterparts with the same effect
as if all parties hereto had signed the same document. All such counterparts
shall be construed together and shall constitute one instrument, but in making
proof hereof it shall only be necessary to produce one such counterpart.
This Guaranty may only be modified, waived, altered or amended by written
instrument or instruments executed by the party against which enforcement of
said action is asserted. Any alleged modification, waiver, alteration or
amendment which is not so documented shall not be effective as to any party.
The terms, provisions, covenants and conditions hereof shall be binding upon
Guarantor and the heirs, devisees, representatives, successors and assigns of
Guarantor and shall inure to the benefit of Creditor and all transferees, credit
participants, successors, assignees and/or endorsees of Creditor. Within this
Guaranty, words of any gender shall be held and construed to include any other
gender and words in the singular number shall be held and construed to include
the plural, unless the context otherwise requires. A determination that any
provision of this Guaranty is unenforceable or invalid shall not affect the
enforceability or validity of any other provision and any determination that the
application of any provision of this Guaranty to any person or circumstance is
illegal or unenforceable shall not affect the enforceability or validity of such
provision as it may apply to any other persons or circumstances.
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR
FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW.
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EXECUTED as of the 28th day of December,1998.
EMERITUS CORPORATION, a Washington corporation
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President of Finance
The address of Guarantor is:
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
The address of Creditor is:
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Commercial Real Estate Lending Division
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THE STATE OF WASHINGTON
COUNTY OF KING
This instrument was acknowledged before me on December 28th 1998, by Xxxxx X.
Xxxxx, Vice President of Finance of Emeritus Corporation, a Washington
corporation, on behalf of said corporation.
/s/ Xxxxxx Xxx
------------------------------------
Notary Public, State of Washington
Xxxxxx Xxx
(printed name)
My Commission Expires: 01-05-02
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