UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE
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THIS UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE (this "Guaranty") is
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made as of the 31st day of December, 2003, and is effective as of January 1,
2004, by EMERITUS CORPORATION, a Washington corporation ("Guarantor"), in favor
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of LASALLE BANK NATIONAL ASSOCIATION, FORMERLY KNOWN AS LASALLE NATIONAL BANK,
AS TRUSTEE FOR GMAC COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES
1998-C2 ("Lender").
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ARTICLE I - BACKGROUND AND AGREEMENT
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1.01 Background. On or about July 30, 1998, GMAC Commercial Mortgage
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Inc., a California corporation ("Original Lender"), made a $25,000,000 loan to
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ALS Financing Corporation, a Kansas corporation ("ALS"; and said loan is
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hereinafter referred to as the "Loan"), which Loan is evidenced by, among other
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things, that certain Loan Agreement, dated as of July 30, 1998, between Original
Lender and ALS (the "Loan Agreement") and that certain Promissory Note, dated
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July 30, 1998, and made by ALS payable to the order of Original Lender in the
stated principal amount of $25,000,000.00 (the "Note"). The Loan is further
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evidenced and secured by, among other things, five (5) security instruments
executed by ALS in favor of Original Lender (collectively, the "Security
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Instruments"; and the Loan Agreement, the Note, and the Security Instruments,
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together with any and all other documents and instruments evidencing or securing
the Loan are hereinafter referred to collectively as the "Original Loan
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Documents"), encumbering five (5) separate facilities operated as assisted
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living facilities and located in the States of California, Kansas, and Colorado
(all such real and personal property, both tangible and intangible, together
with all improvements, appurtenances, rights, and interests described in and
encumbered by the Security Instruments, are hereinafter referred collectively as
the "Properties"). The Loan was subsequently assigned by Original Lender to
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Lender, and Lender is now the owner and holder of the Loan and the Original Loan
Documents. Lender has been asked to consent to the transfer of the Properties
to Emeritus Properties XVI, Inc., a Nevada corporation ("Borrower"), and to the
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assumption by Borrower of the obligations of ALS under the Loan and certain of
the Original Loan Documents, and Lender has agreed to consent to the transfer of
the Properties and to the assumption of the Loan, on and subject to the terms
and conditions set forth in that certain Loan Assumption Agreement, dated as of
even date herewith, by and among Lender, Borrower, Guarantor, ALS and Alterra
Healthcare Corporation, a Delaware corporation (the "Assumption Agreement"; and
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the documents and instruments assumed by Borrower pursuant to the Assumption
Agreement being collectively the "Assumed Loan Documents"). As a condition
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precedent to Lender's execution and delivery of the Assumption Agreement, Lender
requires that Guarantor enter into this Guaranty, that Borrower and Guarantor
enter into that certain Environmental Indemnity Agreement, of even date herewith
(the "Environmental Indemnity Agreement"), and that Borrower consent to the
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filing by Lender of certain UCC-1 financing statements (the "UCCs"; and this
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Guaranty, the Environmental Indemnity Agreement, the Assumption Agreement, the
Assumed Loan Documents, the UCCs and any and all other documents and instruments
executed and delivered in favor of Lender by Borrower and/or Guarantor as
contemplated by the Assumption Agreement being hereinafter collectively referred
to as the "Loan Documents"). Guarantor acknowledges and agrees that substantial
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benefit will inure to Guarantor as a result of the Assumption Agreement and that
the execution, delivery, and acceptance by Lender of the Assumption Agreement
will be to the direct interest and advantage of Guarantor.
1.02 Statement of Agreement. For and in consideration of the sum of
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$10.00 and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged by Guarantor, and for the purpose of seeking to induce
Lender to enter into the Assumption Agreement, Guarantor does hereby make the
following guarantees to and agreements with Lender.
ARTICLE II - GUARANTEES
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2.01 Guaranty of Payment. Guarantor does hereby unconditionally guarantee
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to Lender the full and prompt payment of the Note when due, whether at scheduled
maturity, by acceleration, or otherwise, with such interest as may accrue
thereon and such prepayment premiums and other charges as may be due in
connection therewith, either before or after maturity thereof.
2.02 Guaranty of Performance. Guarantor does hereby unconditionally guarantee
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to Lender the full and prompt payment and performance of any and all obligations
whatsoever of Borrower and all other parties to Lender under the terms of any of
the Loan Documents and all notes (including, without limitation, the Note), loan
agreements (including, without limitation, the Loan Agreement), deeds to secure
debt, mortgages, and deeds of trust (including, without limitation, the Security
Instruments), security agreements, and the other documents and instruments
executed and delivered in connection with or as security for the Loan and the
Loan Documents, whether such obligations now exist or arise hereafter.
2.03 Guarantor Obligations. Guarantor does hereby agree that if the Note is
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not paid by Borrower in accordance with its terms for any reason whatsoever, or
if any and all sums which are now or may hereafter become due from Borrower to
Lender under the Loan Documents are not paid by Borrower in accordance with
their terms as and when due or within any applicable cure period for any reason
whatsoever, Guarantor will immediately make such payments. Guarantor further
agrees to pay Lender all expenses (including, without limitation, reasonable
attorneys' fees) paid or incurred by Lender in endeavoring to collect all or any
portion of the indebtedness evidenced by the Note, to enforce any other
obligations guaranteed hereby, or to enforce this Guaranty.
2.04 Loan Documents. The provisions of this Guaranty shall extend and be
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applicable to all renewals, replacements, amendments, extensions, consolidations
and modifications of the Loan Documents, and any and all references herein to
the Loan Documents or any of them shall be deemed to include any such renewals,
replacements, amendments, extensions, consolidations, or modifications thereof.
ARTICLE III - AGREEMENTS AND WARRANTIES
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3.01 Consents. Guarantor hereby consents and agrees that Lender may at
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any time, and from time to time, without notice to or further consent from
Guarantor, either with or without consideration: (a) release and surrender any
property (whether real or personal), rights, estates, and interests now or at
any time hereafter securing the payment of the Note and/or the other obligations
of Borrower under the Loan Documents, whether held by Lender or by any person or
entity on Lender's behalf or for Lender's account (the "Collateral"); (b)
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substitute for any Collateral held by or on behalf of Lender other collateral of
like kind, or of any kind; (c) make over-advances or increase the amount of the
Loan; (d) agree to modify the terms of any one or more of the Loan Documents;
(e) extend or renew the Note for any period; (f) grant releases, compromises,
and indulgences with respect to any one or more of the Loan Documents and to any
persons or entities now or hereafter liable thereunder or hereunder; (g) release
any other guarantor or endorser of or other person or entity liable upon the
Note or any other of the Loan Documents; or (h) take or fail to take any action
of any type whatsoever. No such action which Lender shall take or fail to take
in connection with the Loan Documents or any Collateral, nor any course of
dealing with Borrower or any other person, shall limit, impair, or release
Guarantor's obligations hereunder, affect this Guaranty in any way, or afford
Guarantor any recourse against Lender. Nothing contained in this Section 3.01
shall be construed to require Lender to take or refrain from taking any action
referred to herein.
3.02 Waiver and Subordination. Until the obligations of Borrower to Lender
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have been paid in full, Guarantor hereby expressly waives any right of
contribution from or indemnity against Borrower, whether at law or in equity,
arising from any payments made by Guarantor pursuant to the terms of this
Guaranty, and Guarantor acknowledges that Guarantor has no right whatsoever to
proceed against Borrower for reimbursement of any such payments. In connection
with the foregoing, until the obligations of Borrower to Lender have been paid
in full, Guarantor expressly waives any and all rights of subrogation to Lender
against Borrower, and Guarantor hereby waives any rights to enforce any remedy
which Lender may have against Borrower and any rights to participate in any
Collateral. In addition to and without in any way limiting the foregoing or any
terms or provisions of the Loan Documents requiring Borrower to be a special
purpose entity and limiting the permissible scope of indebtedness Borrower may
incur, Guarantor hereby subordinates any and all indebtedness of Borrower now or
hereafter owed to Guarantor to all indebtedness of Borrower to Lender and agrees
with Lender that, at any time from and after and during the continuance of an
Event of Default under the Loan Documents, Guarantor shall not demand or accept
any payment of principal or interest from Borrower, shall not claim any offset
or other reduction of Guarantor's obligations hereunder because of any such
indebtedness, and shall not take any action to obtain any of the Collateral.
3.03 Waiver of Defenses. Guarantor hereby waives and agrees not to assert or
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take advantage of any defense based upon: (a) any incapacity, lack of authority,
death, or disability of Guarantor or any other person or entity; (b) any failure
of Lender to commence an action against Borrower or any other person or entity
(including, without limitation, other guarantors, if any) or to file or enforce
a claim against the estate (either in administration, bankruptcy, or any other
proceeding) of Borrower or any other person or entity, whether or not demand is
made upon Lender to file or enforce such claim; (c) any failure of Lender to
give notice of the existence, creation, or incurring of any new or additional
indebtedness or other obligation or of any action or non-action on the part of
any other person or entity in connection with the Loan Documents or any
obligation hereby guaranteed; (d) any failure on the part of Lender to ascertain
the extent or nature of the Collateral or any insurance or other rights with
respect thereto, or the liability of any party liable for the Loan Documents or
the obligations evidenced or secured thereby, or any failure on the part of
Lender to disclose to Guarantor any facts Lender may now or hereafter know
regarding Borrower, the Collateral, or such other parties; (e) any lack of
acceptance or notice of acceptance of this Guaranty by Lender; (f) any lack of
presentment, demand, protest, or notice of demand, protest, dishonor, or
non-payment with respect to any indebtedness or obligations under any of the
Loan Documents; (g) any lack of notice of disposition or of manner of
disposition of any Collateral; (h) any lack of other notices to which Guarantor
might otherwise be entitled; (i) failure to properly record any document or any
other lack of due diligence by Lender in creating or perfecting a security
interest in or collection, protection, or realization upon any Collateral or in
obtaining reimbursement or performance from any person or entity now or
hereafter liable for the Loan Documents or any obligation secured thereby; (j)
any invalidity, irregularity, or unenforceability, in whole or in part, of any
one or more of the Loan Documents; (k) the inaccuracy of any representation or
other provision contained in any Loan Document;
(l) any sale or assignment of the Loan Documents, in whole or in part; (m) any
sale or assignment by Borrower of the Collateral, or any portion thereof,
whether or not consented to by Lender; (n) any lack of commercial reasonableness
in dealing with Collateral; (o) any deficiencies in the Collateral or any
deficiency in the ability of Lender to collect or obtain performance from any
persons or entities now or hereafter liable for the payment or performance of
any obligation hereby guaranteed; (p) an assertion or claim that the automatic
stay provided by 11 U.S.C. 362 (arising upon the voluntary or involuntary
bankruptcy proceeding of Borrower), or any other stay provided under any other
debtor relief law (whether statutory, common law, case law, or otherwise) of any
jurisdiction whatsoever, now or hereafter in effect, which may be or become
applicable, shall operate or be interpreted to stay, interdict, condition,
reduce, or inhibit the ability of Lender to enforce any of its rights, whether
now or hereafter acquired, which Lender may have against Guarantor or the
Collateral; (q) any modifications of the Loan Documents or any obligation of
Borrower relating to the Loan by operation of law or by action of any court,
whether pursuant to the Bankruptcy Reform Act of 1978, as amended, or any other
debtor relief law (whether statutory, common law, case law, or otherwise) of any
jurisdiction whatsoever, now or hereafter in effect, or otherwise; and (r) any
action, occurrence, event, or matter consented to by Guarantor under Section
3.01 hereof, under any other provision hereof, or otherwise.
3.04 Liability of Guarantor. This is a guaranty of payment and performance and
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not of collection. The liability of Guarantor hereunder shall be joint and
several with any other guarantors of the obligations guaranteed hereby. The
liability of Guarantor under this Guaranty shall be direct and immediate and not
conditional or contingent upon the pursuit of any remedies against Borrower or
any other person (including, without limitation, other guarantors, if any), nor
against the Collateral. Guarantor waives any right to require that an action be
brought against Borrower or any other person or to require that resort be had to
any Collateral or to any balance of any deposit account or credit on the books
of Lender in favor of Borrower or any other person. In the event that, on
account of the Bankruptcy Reform Act of 1978, as amended, or any other debtor
relief law (whether statutory, common law, case law, or otherwise) of any
jurisdiction whatsoever, now or hereafter in effect, which may be or become
applicable, Borrower shall be relieved of or fail to incur any debt, obligation,
or liability as provided in the Loan Documents, Guarantor shall nevertheless be
fully liable therefor. In the event of a default under the Loan Documents,
Lender shall have the right to enforce its rights, powers, and remedies
(including, without limitation, foreclosure of all or any portion of the
Collateral) thereunder or hereunder, in any order, and all rights, powers, and
remedies available to Lender in such event shall be non-exclusive and cumulative
of all other rights, powers, and remedies provided thereunder or hereunder or by
law or in equity. If the indebtedness and obligations guaranteed hereby are
partially paid or discharged by reason of the exercise of any of the remedies
available to Lender, this Guaranty shall nevertheless remain in full force and
effect, and Guarantor shall remain liable for all remaining indebtedness and
obligations guaranteed hereby, even though any rights which Guarantor may have
against Borrower may be destroyed or diminished by the exercise of any such
remedy; and if the indebtedness and obligations guaranteed hereby are otherwise
partially paid or discharged for any reason, including voluntary payment or
prepayment, application of insurance proceeds or condemnation awards, additional
financing, or refinancing, or sale of the Collateral or a portion thereof, with
or without the consent or cooperation of Lender, this Guaranty shall
nevertheless remain in full force and effect, and Guarantor shall remain liable
for all remaining indebtedness and obligations guaranteed hereby. Guarantor
covenants and agrees that, upon the commencement of a voluntary or involuntary
bankruptcy proceeding by or against Borrower, Guarantor shall not seek or cause
Borrower or any other person or entity to seek a supplemental stay or other
relief, whether injunctive or otherwise, pursuant to 11 U.S.C. 105 or any
other provision of the Bankruptcy Reform Act of 1978, as amended, or any other
debtor relief law (whether statutory, common law, case law, or otherwise) of any
jurisdiction whatsoever, now or hereafter in effect, which may be or become
applicable, to stay, interdict, condition, reduce, or inhibit the ability of
Lender to enforce any rights of Lender against Guarantor or the Collateral by
virtue of this Guaranty or otherwise. No exculpatory or similar provision of
the Loan Documents which limits, or relieves Borrower or any other person or
entity from, any personal or direct liability of Borrower under the Loan
Documents shall limit or relieve Guarantor from any such liability, it being the
intention of the parties hereto that Guarantor be liable for all obligations of
the Borrower under any provision of the Loan Documents notwithstanding any such
exculpatory or similar provision. The obligations of Guarantor and the rights
of Lender hereunder are in addition to the obligations of Guarantor and the
rights of Lender under any other guaranty or indemnity agreement given by
Guarantor to Lender in connection with the Loan, and payments made under one
guaranty or indemnity agreement shall not reduce the liabilities and obligations
of Guarantor under any other guaranty or indemnity agreement.
3.05 Security Interest and Setoff. Without implying any waiver by Lender of
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any rights or remedies (including, without limitation, any right of setoff) to
which Lender may be entitled, Guarantor hereby grants to Lender, as security for
the liabilities and obligations of Guarantor hereunder, a lien upon, security
title to, and a security interest in all of Guarantor's balances, credits,
deposits, accounts, instruments, items, moneys, or other property of every kind
and description now or hereafter in the possession or control of or otherwise
with Lender for any reason, including all dividends and distributions thereon or
other rights in connection therewith. Lender may, without demand or notice of
any kind, at any time, or from time to time, and without exercising any rights
or remedies against Borrower, any other person or the Collateral, when any
amount shall be due and payable hereunder by Guarantor, exercise any remedy
available under law, including the appropriation and application toward the
payment of such amount, and in such order of application as Lender may from time
to time elect, any such balances, credits, deposits, accounts, instruments,
items, moneys, or other property of Guarantor. The proceeds of any such
disposition may be applied to reasonable attorneys' fees and other expenses
incurred by Lender. Guarantor hereby designates, appoints, and empowers Lender
irrevocably as its attorney-in-fact, at Guarantor's cost and expense, to do in
the name of Guarantor any and all actions which Lender may deem necessary or
advisable to carry out the terms hereof upon the failure, refusal, or inability
of Guarantor to do so and to transfer to Lender's name or any third party's name
any property of Guarantor as to which Lender desires to exercise its rights and
remedies hereunder.
3.06 Application of Payments. Guarantor hereby authorizes Lender, without
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notice to Guarantor, to apply all payments and credits received from Borrower or
from Guarantor or realized from any security to the indebtedness, obligations,
and undertakings of Borrower (whether or not the same are the subject of this
Guaranty) in such manner and in such priority as Lender in its sole judgment
shall determine.
3.07 Financial Statements. Guarantor acknowledges that the Loan Documents
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require that Borrower provide or cause to be provided to Lender certain
financial statements of Guarantor. Guarantor hereby agrees to provide to Lender
all such financial statements in such form and at such times as is required
under the provisions of the Loan Documents.
3.08 Warranties. Guarantor warrants and represents (a) that the execution and
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delivery of this Guaranty do not violate or constitute a breach of any agreement
to which Guarantor is a party or any applicable laws, and (b) that there is no
litigation, claim, action, or proceeding, pending or threatened against
Guarantor which would adversely affect the financial condition of Guarantor or
the ability of Guarantor to fulfill all obligations of Guarantor hereunder, and
(c) that all financial statements heretofore delivered by Guarantor to Lender
are true and correct in all respects as of the date thereof, and no material
change has occurred in the financial condition of Guarantor since the date
thereof.
3.09 Condition of Borrower. Guarantor warrants and represents that Guarantor
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is fully aware of the financial condition of Borrower and is executing and
delivering this Guaranty based solely upon Guarantor's own independent
investigation of all matters pertinent hereto; that Guarantor is not relying in
any manner upon any representation or statement of Lender. Guarantor warrants,
represents, and agrees that Guarantor is in a position to obtain, and Guarantor
hereby assumes full responsibility for obtaining, any additional information
concerning the financial condition of Borrower and any other matter pertinent
hereto; and that Guarantor is not relying upon Lender to furnish, and shall have
no right to require Lender to obtain or disclose, any information with respect
to the indebtedness or obligations guaranteed hereby, the financial condition or
character of Borrower, or the ability of Borrower to pay the indebtedness or
perform the obligations guaranteed hereby, the existence of any collateral or
security for any or all of such indebtedness or obligations, the existence or
nonexistence of any other guaranties of all or any part of such indebtedness or
obligations, any actions or non-action on the part of Lender, Borrower, or any
other person or entity, or any other matter, fact, or occurrence whatsoever. By
executing this Guaranty, Guarantor acknowledges and knowingly accepts the full
range of risks encompassed within a contract of guaranty.
ARTICLE IV - GENERAL CONDITIONS
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4.01 Service of Process. Guarantor hereby (a) submits to personal
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jurisdiction in the State of Kansas for the enforcement of this Guaranty, and
(b) waives any and all rights under the law of any state to object to
jurisdiction within the State of Kansas for the purposes of litigation to
enforce this Guaranty. Nothing contained herein, however, shall prevent Lender
from bringing any action or exercising any rights against any security or
against Guarantor personally, or against any property of Guarantor, within any
other state. Initiating such proceeding or taking such action in any other
state shall in no event constitute a waiver of the agreement contained herein
that the law of the State of Kansas shall govern the rights and obligations of
Guarantor and Lender hereunder or of the submission herein made by Guarantor to
personal jurisdiction within the State of Kansas. The aforesaid means of
obtaining personal jurisdiction is not intended to be exclusive but is
cumulative and in addition to all other means of obtaining personal jurisdiction
now or hereafter provided by the law of the State of Kansas.
4.02 Waiver of Rights. Guarantor hereby waives and renounces, to the
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fullest extent permitted by law, all rights to the benefits of any statute of
limitations and any moratorium, reinstatement, marshalling, forbearance,
valuation, stay, extension, redemption, appraisement, exemption and homestead
law or principle of law now or hereafter provided by the Constitution and laws
of the United States of America and of each state thereof, both as to itself and
in and to all of its property, real and personal, against the enforcement and
collection of the obligations evidenced by this Guaranty.
4.03 Communications. Unless and except as otherwise specifically provided
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herein, any and all notices, elections, approvals, consents, demands, requests,
and responses thereto ("Communications") permitted or required to be given under
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this Guaranty shall be in writing, signed by or on behalf of the party giving
the same, and shall be delivered to the parties in the manner provided in the
Loan Agreement to the addresses set forth hereinbelow:
LaSalle Bank National Association, formerly known as LaSalle National Bank, as
trustee for GMAC Commercial Mortgage Pass-Through Certificates, Series 1998-C2
c/o GMAC Commercial Mortgage Corporation
▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ Long & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and, if given to Guarantor, must be addressed as follows, subject to change as
provided hereinabove:
Emeritus Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
The ▇▇▇▇▇▇▇▇▇ Group PLLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
4.04 Irrevocability and Revival. This Guaranty shall be irrevocable by
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Guarantor and shall remain in effect until all indebtedness guaranteed hereby
has been completely repaid and until all obligations and undertakings of
Borrower under, by reason of, or pursuant to the Loan Documents have been
completely performed, including obligations which survive repayment of the Loan
or realization upon the Collateral. This Guaranty shall continue to be
effective or be revived and reinstated, as the case may be, in the event that
any payment received by Lender of any of the indebtedness guaranteed hereby is
avoided, returned or rescinded by reason of any present or future federal, state
or other law or regulation relating to bankruptcy, insolvency, or other relief
of debtors or for any other reason.
4.05 Limit of Validity. If from any circumstances whatsoever fulfillment of
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any provisions of this Guaranty, at the time performance of such provision shall
be due, shall involve transcending the limit of validity presently prescribed by
any applicable usury statute or any other applicable law with regard to
obligations of like character and amount, then ipso facto the obligation to be
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fulfilled shall be reduced to the limit of such validity, so that in no event
shall any exaction be possible under this Guaranty that is in excess of the
current limit of such validity, but such obligation shall be fulfilled to the
limit of such validity. The provisions of this section shall control every
other provision of this Guaranty.
4.06 Applicable Law. This Guaranty shall be interpreted, construed and
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enforced according to the substantive law of the State of Kansas without giving
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effect to its principles of choice of law or conflicts of law.
4.07 Miscellaneous. Time is of the essence with respect to all obligations of
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Guarantor hereunder. This Guaranty may not be changed orally, and no obligation
of Guarantor can be released or waived by Lender or any officer or agent of
Lender, except by a writing signed by a duly authorized officer of Lender. The
provisions of this Guaranty shall be binding upon Guarantor and the heirs,
executors, legal representatives, successors, successors-in-title, and assigns
of Guarantor and shall inure to the benefit of Lender, the heirs, executors,
legal representatives, successors, successors-in-title, and assigns of Lender.
This Guaranty shall in no event be impaired by any change which may arise by
reason of the death of Borrower or Guarantor, if individuals, or by reason of
the dissolution of Borrower or Guarantor, if Borrower or Guarantor is a
corporation or partnership. Guarantor has executed this Guaranty individually
and not as a partner of Borrower or any other guarantor. This Guaranty is
assignable by Lender, and any full or partial assignment hereof by Lender shall
operate to vest in the assignee all rights and powers herein conferred upon and
granted to Lender and so assigned by Lender. Guarantor expressly waives notice
of transfer or assignment of this Guaranty and acknowledges that the failure by
Lender to give any such notice shall not affect the liabilities of Guarantor
hereunder. Notwithstanding the foregoing, Guarantor shall not assign any of its
rights or obligations under this Guaranty. All personal pronouns used herein,
whether used in the masculine, feminine, or neuter gender, shall include all
other genders; and the singular shall include the plural and vice versa. Titles
of articles and sections are for convenience only and in no way define, limit,
amplify, or describe the scope or intent of any provisions hereof. If Guarantor
is a partnership, all of the provisions hereof referring to Guarantor shall be
construed to apply to each of the general partners of Guarantor and of any and
all further tiers of general partners in the structure of Guarantor. This
Guaranty contains the entire agreement between Guarantor and Lender relating to
the guarantying of the Loan by Guarantor and supersedes entirely any and all
prior written or oral agreements with respect thereto; and Guarantor and Lender
acknowledge that there are no contemporaneous oral agreements with respect to
the subject matter hereof.
4.08 Environmental Indemnity. The obligations of Guarantor hereunder are in
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addition to any and all obligations of Guarantor under that certain
Environmental Indemnity Agreement, of even date herewith, by Borrower and
Guarantor in favor of Lender.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Guarantor has executed this Guaranty under seal as of
the date first above written.
EMERITUS CORPORATION, a Washington corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President