EX-10.71.12
UNCONDITIONAL PAYMENT
GUARANTY
THIS
UNCONDITIONAL PAYMENT GUARANTY (
“Guaranty” ) dated October 17, 2008, is
given by EMERITUS CORPORATION, a Washington corporation (
“Guarantor” ) to and for the benefit of
KEYBANK NATIONAL ASSOCIATION, a national banking association, its
successors and assigns ( “Lender”
).
Recitals
A. On
or about the date hereof, EMERITOL DOWLEN OAKS LLC, a Delaware
limited liability company, and EMERITOL SADDLERIDGE LODGE LLC, a
Delaware limited liability company, and EMERITOL SEVILLE ESTATES
LLC, a Delaware limited liability company (individually and
collectively, “Borrower” ) and Lender
entered into that certain Loan Agreement ( “Loan
Agreement” ) whereby Lender agreed to make a loan
(the “Loan” ) available to Borrower in
the amount of SEVENTEEN MILLION, FIVE HUNDRED NINETY FIVE THOUSAND
and NO/100 DOLLARS ($17,595,000.00) to finance the Facilities
described in the Loan Agreement. Capitalized terms used
and not otherwise defined herein shall have the meanings given to
them in the Loan Agreement.
B. In
connection with the Loan, Borrower has executed and delivered the
Note in favor of Lender of even date herewith in the amount of the
Loan, payment of which is secured by the Mortgages encumbering the
Facilities located in the State of Texas and the other Loan
Documents.
C. Guarantor
will derive material financial benefit from the Loan evidenced and
secured by the Note, the Mortgages and the other Loan
Documents.
D. Lender
has relied on the statements and agreements contained herein in
agreeing to make the Loan. The execution and delivery of
this Guaranty by Guarantor is a condition precedent to the making
of the Loan by Lender.
Agreements
NOW, THEREFORE,
intending to be legally bound, Guarantor, in consideration of the
matters described in the foregoing Recitals, which Recitals are
incorporated herein and made a part hereof, and for other good and
valuable consideration the receipt and sufficiency of which are
acknowledged, hereby covenants and agrees for the benefit of Lender
and its respective successors, endorsees, transferees, participants
and assigns as follows:
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Guarantor
absolutely, unconditionally and irrevocably guarantees:
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The full and
prompt payment of the principal of and interest on the Note when
due, whether at stated maturity, upon acceleration or otherwise,
and at all times thereafter, and the full and prompt payment of all
sums which
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may now be or
may hereafter become due and owing under the Note, the Loan
Agreement and the other Loan Documents;
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The prompt,
full and complete performance of all of Borrower’s
obligations under each and every covenant contained in the Loan
Documents; and
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The payment of
all amounts payable by Borrower under any Interest Rate Agreement
entered into between Lender and Borrower with respect to the
Loan.
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All amounts
due, debts, liabilities and payment obligations described in this
Section 1 shall be hereinafter collectively referred to
as the “Indebtedness .
”
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If there is an
Event of Default under the Loan Documents, Guarantor agrees, on
written demand by Lender or the holder of the Note, to pay the
Indebtedness regardless of any defense, right of set-off or claims
which Borrower or Guarantor may have against Lender or the holder
of the Note.
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All of the
remedies set forth herein and/or provided for in any of the Loan
Documents or at law or equity shall be equally available to Lender,
and the choice by Lender of one such alternative over another shall
not be subject to question or challenge by Guarantor or any other
person, nor shall any such choice be asserted as a defense, setoff,
or failure to mitigate damages in any action, proceeding, or
counteraction by Lender to recover or seeking any other remedy
under this Guaranty, nor shall such choice preclude Lender from
subsequently electing to exercise a different
remedy. The parties have agreed to the alternative
remedies provided herein in part because they recognize that the
choice of remedies in the event of a default hereunder will
necessarily be and should properly be a matter of good faith
business judgment, which the passage of time and events may or may
not prove to have been the best choice to maximize recovery by
Lender at the lowest cost to Borrower and/or
Guarantor. It is the intention of the parties that such
good faith choice by Lender be given conclusive effect regardless
of such subsequent developments.
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Guarantor does
hereby (a) waive notice of acceptance of this Guaranty by
Lender and any and all notices and demands of every kind which may
be required to be given by any statute, rule or law, other than
notices specifically required under the Loan Documents or this
Guaranty, (b) agree to refrain from asserting, until after
repayment in full of the Loan, any defense, right of set-off or
other claim which Guarantor may have against Borrower (c) waive any
defense, right of set-off or other claim which Guarantor or
Borrower may have against Lender, or the holder of the Note, (d)
waive any and all rights Guarantor may have under any
anti-deficiency statute or other similar protections,
(e) waive presentment for payment, demand for payment, notice
of nonpayment or dishonor, protest and notice of protest, diligence
in collection and any and all formalities which otherwise might be
legally required to charge Guarantor with liability, and
(f) waive any failure by Lender to inform Guarantor of any
facts Lender may now or hereafter know about Borrower, the
Facilities, the Loan, or the transactions contemplated by the
Loan
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Agreement, it
being understood and agreed that Lender has no duty so to inform
and that Guarantor is fully responsible for being and remaining
informed by Borrower of all circumstances bearing on the risk of
nonperformance of Borrower’s obligations. Credit
may be granted or continued from time to time by Lender to Borrower
without notice to or authorization from Guarantor, regardless of
the financial or other condition of Borrower at the time of any
such grant or continuation. Lender shall have no
obligation to disclose or discuss with Guarantor its assessment of
the financial condition of Borrower. Guarantor
acknowledges that no representations of any kind whatsoever have
been made by Lender. No modification or waiver of any of
the provisions of this Guaranty shall be binding upon Lender except
as expressly set forth in a writing duly signed and delivered by
Lender.
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Guarantor
further agrees that Guarantor’s liability as guarantor shall
in not be impaired or affected by any renewals or extensions which
may be made from time to time, with or without the knowledge or
consent of Guarantor of the time for payment of interest or
principal under the Note or by any forbearance or delay in
collecting interest or principal under the Note, or by any waiver
by Lender under the Loan Agreement, Mortgages or any other Loan
Documents, or by Lender’s failure or election not to pursue
any other remedies it may have against Borrower or Guarantor, or by
any change or modification in the Note, Loan Agreement, Mortgages
or any other Loan Document, or by the acceptance by Lender of any
additional security or any increase, substitution or change
therein, or by the release by Lender of any security or any
withdrawal thereof or decrease therein, or by the application of
payments received from any source to the payment of any obligation
other than the Indebtedness even though Lender might lawfully have
elected to apply such payments to any part or all of the
Indebtedness, it being the intent hereof that, subject to
Lender’s compliance with the terms of this Guaranty,
Guarantor shall remain liable for the payment of the Indebtedness,
until the Indebtedness has been paid in full, notwithstanding any
act or thing which might otherwise operate as a legal or equitable
discharge of a surety. Guarantor further understands and
agrees that Lender may at any time enter into agreements with
Borrower to amend and modify the Note, Loan Agreement, Mortgages or
other Loan Documents, and may waive or release any provision or
provisions of the Note, Loan Agreement, Mortgages and other Loan
Documents or any thereof, and, with reference to such instruments,
may make and enter into any such agreement or agreements as Lender
and Borrower may deem proper and desirable, without in any manner
impairing or affecting this Guaranty or any of Lender’s
rights hereunder or Guarantor’s obligations
hereunder.
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This is an
absolute, present and continuing guaranty of payment and not of
collection. Guarantor agrees that this Guaranty may be
enforced by Lender without the necessity at any time of resorting
to or exhausting any other security or collateral given in
connection herewith or with the Note, Loan Agreement, Mortgages or
any of the other Loan Documents through foreclosure or sale
proceedings, as the case may be, under the Mortgages or otherwise,
or resorting to any other guaranties, and Guarantor hereby waives
any right to require Lender to
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join Borrower
in any action brought hereunder or to commence any action against
or obtain any judgment against Borrower or to pursue any other
remedy or enforce any other right. Guarantor further
agrees that nothing contained herein or otherwise shall prevent
Lender from pursuing concurrently or successively all rights and
remedies available to it at law and/or in equity or under the Note,
Loan Agreement, Mortgages or any other Loan Documents, and the
exercise of any of its rights or the completion of any of its
remedies shall not constitute a discharge of Guarantor’s
obligations hereunder, it being the purpose and intent of Guarantor
that the obligations of Guarantor to Lender hereunder shall be
absolute, independent and unconditional under any and all
circumstances whatsoever. None of Guarantor’s
obligations under this Guaranty or any remedy for the enforcement
thereof shall be impaired, modified, changed or released in any
manner whatsoever by any impairment, modification, change, release
or limitation
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