Exhibit 10.107
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Agreement") is made this 19th day of
February, 2002, by ARV ASSISTED LIVING, INC., a Delaware corporation
("Guarantor"), to and for the benefit of RED MORTGAGE CAPITAL, INC., an Ohio
corporation ("Lender").
R E C I T A L S
WHEREAS, Lender has previously made a loan (the "Loan") to Retirement Inns
III, LLC, a Delaware limited liability company ("Borrower"), in the principal
sum of Eight Million Two Hundred Nine Thousand Nine Hundred Dollars ($8,209,900)
evidenced by that certain Multifamily Note dated June 27, 1999, issued by
Borrower to the order of Lender (the "Original Note"), as amended by that
certain First Amendment to Multifamily Note dated December 28, 2000 between
Borrower and Lender (the "First Amendment to Note" and together with the
Original Note, the "Existing Note"), as further amended by that certain Second
Amendment to Multifamily Note dated as of even date herewith between Borrower
and Lender (the "Second Amendment to Note") (the Original Note, as amended by
the First Amendment to Note and the Second Amendment to Note, is herein called
the "Note"), secured in part, by that certain Multifamily Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing dated as of June 27,
1999 by the Borrower for the benefit of Lender (the "Original Deed of Trust"),
recorded among the Official Records of Ventura County, California (the "Land
Records") on June 28, 1999 as Instrument No. 99-122405, as amended by that
certain Amendment to Multifamily Deed of Trust, Assignment of Rents, Security
Agreement and Fixture Filing dated as of August 31, 1999 between Borrower and
Lender (the "First Amendment to Deed of Trust"), recorded among the Land Records
on September 10, 1999 as Instrument No. 99-173435, as affected by that certain
Confirmatory Assignment of Multifamily Deed of Trust, Assignment of Rents,
Security Agreement and Fixture Filing dated as of December 12, 2000, effective
as of October 2, 2000, by Banc One Capital Funding Corporation, an Ohio
corporation to Provident Mortgage Capital, Inc., now known as Red Mortgage
Capital, Inc. (the "Confirmatory Assignment", and together with the Original
Deed of Trust and the First Amendment to Deed of Trust, the "Existing Deed of
Trust"), recorded among the Land Records on January 31, 2001 as Instrument No.
2001-0018605-00, as further amended by that certain Second Amendment to
Multifamily Deed of Trust, Assignment of Rents, Security Agreement and Fixture
Filing dated as of even date herewith between Borrower and Lender (the "Second
Amendment to Deed of Trust"), recorded among the Land Records simultaneously
with the execution of this Agreement (the Existing Deed of Trust, as amended by
the Second Amendment to Deed of Trust, is herein called the "Deed of Trust");
and
WHEREAS, Borrower has requested and Lender has agreed pursuant to the terms
and conditions of that certain Master Modification Agreement dated as of the
date
hereof by and among the Borrower, the Lender and the Guarantor (the
"Modification Agreement") to (i) increase the principal sum of the Loan to
$11,980,000 (the "Increase"), (ii) extend the Maturity Date (as defined in the
Existing Note) of the Loan to July 1, 2003 (the "Extension") and (iii) change
the interest rate of the Loan to 8.50% (the "Rate Change"); and
WHEREAS, Guarantor is the parent company of Borrower and has obtained
material benefits from the Loan and will obtain material benefits from the Loan
as increased, extended and otherwise amended pursuant to the Modification
Agreement; and
WHEREAS, Lender has required that Guarantor guaranty a portion of the Loan
pursuant to the terms of this Agreement as a condition to agreeing to the
Increase, the Extension and the Rate Change, and entering into the Modification
Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual entry of the
Modification Agreement by the parties thereto, the Increase, the Extension, the
Rate Change and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Guarantor and Lender hereby agree
as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
SECTION 1.1. Definitions. All capitalized terms which are not specifically
defined in this Agreement shall have the meanings assigned to such terms in the
Deed of Trust. In addition, the terms defined in the Preamble and Recitals
hereto and elsewhere herein shall have the respective meanings specified therein
or elsewhere herein, and the following terms shall have the following meanings:
"ARVP III" means American Retirement Villas Properties III, L.P., a
California limited partnership.
"ARVP III Pledge Agreement" means that certain American Retirement Villas
Properties III, L.P. Partnership Interest Pledge Agreement dated as of the date
hereof by Guarantor to and for the benefit of Lender.
"Cash Collateral Agreement" means that certain Cash Collateral Pledge
Agreement dated as of the date hereof by Borrower for the benefit of Lender.
"Collateral" means (a) (i) the partnership unit certificates of ARV PIII
and SGRV now owned or in the future acquired by Guarantor, (ii) any (if any)
certificates representing or evidencing the partnership units of ARVP III and
SGRV owned by Guarantor, (iii) any and all other property which may be delivered
to or held by Lender pursuant to the provisions of the ARV PIII Pledge Agreement
and the SGRV Pledge Agreement, and (iv) subject to the provisions of the ARV
PIII Pledge Agreement and the SGRV Pledge Agreement, all payments of principal
or interest, distributions, dividends,
cash, income, profits instruments, securities and other property from time to
time received, receivable or otherwise distributed in respect of, in exchange
for or upon conversion of, the partnership units of ARV PIII and SGRV owned by
Guarantor, and (v) subject to the provisions of the ARV PIII Pledge Agreement
and the SGRV Pledge Agreement, any and all voting and other rights, powers and
privileges accruing or incidental to an owner of the partnership units of ARV
PIII or SGRV and the other property referred to in clauses (i) through (iv); and
(b) all cash and non-cash proceeds and products of the portion of the Collateral
described in clause (a) above.
"Enforcement Costs" means any and all funds, costs, expenses and charges of
any nature whatsoever (including, without limitation, attorney's fees and
expenses) advanced, paid or incurred by or on behalf of Lender under or in
connection with the administration or enforcement of this Agreement, including,
without limitation, (a) the compliance of Guarantor with any covenant, warranty,
representation or agreement of Guarantor made in or pursuant to this Agreement
or any of the other Loan Documents, and (b) the exercise, preservation,
maintenance, protection, operation, management, enforcement, collection, sale or
other disposition of, or realization upon, this Agreement, all or any part of
the Collateral and the rights and remedies of Lender hereunder, under applicable
law and otherwise.
"Event of Default" has the meaning set forth in Article V.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof and any entity or person exercising applicable
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, administration, official, service or other
instrumentality of the United States of America, of any state within the United
States of America, of any territory or possession of the United States of
America, of the District of Columbia, of any municipality within the United
States of America, or of any other governmental entity.
"Lien" means any interest in property securing any obligation owed to, or a
claim by, a Person other than the owner of the property, whether such interest
is based on the common law, statute or contract, and including but not limited
to the lien, encumbrance, pledge, or security interest arising from a deed of
trust, mortgage, encumbrance, pledge, security agreement, conditional sale or
trust receipt or a lease, consignment or bailment for security purposes.
"Loan Documents" shall have the meaning set forth in the Modification
Agreement.
"Obligations" means collectively and includes (i) all present and future
liabilities and obligations of any kind and nature whatsoever of Borrower to
Lender both now existing and hereafter arising under, as a result of, on account
of, or in connection with, the Loan, (ii) the Note and any extensions, renewals
or replacements thereof, amendments thereto and restatements or modifications
thereof made at any time or from time to time hereafter, and/or (iii) the other
Loan Documents, including, without
limitation, future advances, principal, interest, indemnities, fees, late
charges, enforcement costs and other costs and expenses, whether direct,
contingent joint, several, joint and several, matured or unmatured, and (iv) any
other financing or other financial arrangement provided by Lender to Borrower.
In addition, Obligations shall include all Enforcement Costs hereunder.
"Person" or "person" means and includes an individual, a company, a
corporation, a partnership, a joint venture, a trust, an unincorporated
association, a Governmental Authority or any other entity.
"SGRV" means San Gabriel Retirement Villa, L.P., a California limited
partnership.
"SGRV Pledge Agreement" means that certain San Gabriel Retirement Villa
Partnership Interest Pledge Agreement dated as of the date hereof by Guarantor
to and for the benefit of Lender.
"UCC" means the Uniform Commercial Code as in effect in the State of
California.
SECTION 1.2. Rules of Construction. Unless otherwise defined herein and
unless the context otherwise requires, all terms used herein which are defined
by the UCC shall have the same meanings assigned to them by the UCC unless and
to the extent varied by this Agreement. The words "hereof", "herein", and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement, and section, subsection, schedule, and exhibit references are
references to sections or subsections of, or schedules or exhibits to, as the
case may be, this Agreement unless otherwise specified. As used herein, the
singular number shall include the plural, the plural the singular, and the use
of the masculine, feminine or neuter gender shall include all genders, as the
context may require.
ARTICLE II
THE GUARANTY
SECTION 2.1. The Guaranty. Guarantor absolutely, unconditionally and
irrevocably guarantees to Lender the due and punctual payment in full (and not
merely the collectibility) of the Obligations; provided, however, that absent
fraud or willful misconduct on behalf of Guarantor, Lender's sole right of
recourse against Guarantor shall be against the Collateral in an amount not to
exceed $1,000,000. The guaranty of Guarantor under this Agreement is a guaranty
of payment and performance and not merely of collection or enforceability and
shall remain in full force and effect until all of the Obligations are
indefeasibly paid in full. Guarantor agrees that:
(a) The obligations of Guarantor under this Agreement shall be
performed without demand by Lender and shall be unconditional
irrespective of the genuineness, validity, regularity or
enforceability of the Note, or any other Loan Document, and
without regard to any other circumstance which might otherwise
constitute a legal or equitable discharge of a surety or a
guarantor. Guarantor hereby waives any and all benefits and
defenses under California Civil Code Section 2810 and agrees that
by doing so Guarantor shall be liable even if Borrower had no
liability at the time of execution of the Note or any other Loan
Document, or thereafter ceases to be liable. Guarantor hereby
waives any and all benefits and defenses under California Civil
Code Section 2809 and agrees that by doing so Guarantor's
liability may be larger in amount and more burdensome than that
of Borrower. Guarantor hereby waives the benefit of all
principles or provisions of law, statutory or otherwise, which
are or might be in conflict with the terms of this Agreement and
agrees that Guarantor's obligations shall not be affected by any
circumstances, whether or not referred to in this Agreement,
which might otherwise constitute a legal or equitable discharge
of a surety or a guarantor. Guarantor hereby waives the benefits
of any right of discharge under any and all statutes or other
laws relating to guarantors or sureties and any other rights of
sureties and guarantors thereunder. Without limiting the
generality of the foregoing, Guarantor hereby waives, to the
fullest extent permitted by law, diligence in collecting the
Obligations, presentment, demand for payment, protest, all
notices with respect to the Note and this Agreement which may be
required by statute, rule of law or otherwise to preserve
Lender's rights against Guarantor under this Agreement, including
notice of acceptance, notice of any amendment of the Loan
Documents, notice of the occurrence of any default or Event of
Default, notice of intent to accelerate, notice of acceleration,
notice of dishonor, notice of foreclosure, notice of protest, and
notice of the incurring by Borrower of any obligation or
indebtedness. Guarantor also waives, to the fullest extent
permitted by law, all rights to require Lender to (i) proceed
against Borrower, (ii) if Borrower is a partnership, proceed
against any general partner of Borrower, (iii) proceed against or
exhaust any collateral held by Lender to secure the repayment of
the Obligations, or (iv) pursue any other remedy it may now or
hereafter have against Borrower, or, if Borrower is a
partnership, any general partner of Borrower, including any and
all benefits under California Civil Code Sections 2845, 2849 and
2850.
(b) Guarantor understands that the exercise by Lender of certain
rights and remedies afforded Lender in other Loan Documents may
affect or eliminate Guarantor's right of subrogation against
Borrower and that Guarantor may therefore incur a partially or
totally nonreimbursable liability under this Agreement.
Nevertheless, Guarantor hereby authorizes and empowers Lender to
exercise, in its sole and absolute discretion, any
right or remedy, or any combination thereof, which may then be
available, since it is the intent and purpose of Guarantor
that the obligations under this Agreement shall be absolute,
independent and unconditional under any and all circumstances.
Guarantor expressly waives any defense (which defense, if
Guarantor had not given this waiver, Guarantor might otherwise
have) to a judgment against Guarantor by reason of a
nonjudicial foreclosure. Without limiting the generality of
the foregoing, Guarantor hereby expressly waives any and all
benefits under (i) California Code of Civil Procedure Section
580a (which Section, if Guarantor had not given this waiver,
would otherwise limit Guarantor's liability after a
nonjudicial foreclosure sale to the difference between the
obligations of Guarantor under this Agreement and the fair
market value of the property or interests sold at such
nonjudicial foreclosure sale), (ii) California Code of Civil
Procedure Sections 580b and 580d (which Sections, if Guarantor
had not given this waiver, would otherwise limit Lender's
right to recover a deficiency judgment with respect to
purchase money obligations and after a nonjudicial foreclosure
sale, respectively), and (iii) California Code of Civil
Procedure Section 726 (which Section, if Guarantor had not
given this waiver, among other things, would otherwise require
Lender to exhaust all of its security before a personal
judgment could be obtained for a deficiency). Notwithstanding
any foreclosure of the lien of the ARV PIII Pledge Agreement
or the SGRV Pledge Agreement, whether by the exercise of the
power of sale contained in the ARV PIII Pledge Agreement or
the SGRV Pledge Agreement or by an action for judicial
foreclosure, Guarantor shall remain bound under this
Agreement.
(c) In accordance with California Civil Code Section 2856,
Guarantor also waives any right or defense based upon an
election of remedies by Lender, even though such election
(e.g., nonjudicial foreclosure with respect to any collateral
held by Lender to secure repayment of the Obligations)
destroys or otherwise impairs the subrogation rights of
Guarantor or the right of Guarantor (after payment of the
obligations guaranteed by Guarantor under this Agreement) to
proceed against Borrower for reimbursement, or both, by
operation of California Code of Civil Procedure Section 580d
or otherwise.
(d) In accordance with California Civil Code Section 2856,
Guarantor waives any and all other rights and defenses
available to Guarantor by reason of California Civil Code
Sections 2787 through 2855, inclusive, including any and all
rights or defenses Guarantor may have by reason of protection
afforded to Borrower with respect to any of the obligations of
Guarantor under this Agreement pursuant to the antideficiency
or other laws of the State of California limiting or
discharging Borrower's Obligations, including California Code
of Civil Procedure Sections 580a, 580b, 580d, and 726.
(e) In accordance with California Civil Code Section 2856,
Guarantor agrees to withhold the exercise of any and all
subrogation and reimbursement rights against Borrower,
against any other person, and against any collateral or
security for the Obligations, including any such rights
pursuant to California Civil Code Sections 2847 and 2848,
until the Obligations have been indefeasibly paid and
satisfied in full, all obligations owed to Lender under the
Loan Documents have been fully performed, and Lender has
released, transferred or disposed of all of its right, title
and interest in such collateral or security.
(f) At any time or from time to time and any number of
times, without notice to Guarantor and without affecting the
liability of Guarantor, (i) the time for payment of the
principal of or interest on the Obligations may be extended
or the Obligations may be renewed in whole or in part; (ii)
the time for Borrower's performance of or compliance with
any covenant or agreement contained in the Note or any other
Loan Document, whether presently existing or hereinafter
entered into, may be extended or such performance or
compliance may be waived; (iii) the maturity of the
Obligations may be accelerated as provided in the Note or
any other Loan Document; (iv) the Note or any other Loan
Document may be modified or amended by Lender and Borrower
in any respect, including an increase in the principal
amount; and (v) any security for the Obligations may be
modified, exchanged, surrendered or otherwise dealt with or
additional security may be pledged or mortgaged for the
Obligations.
(g) If more than one person executes this Agreement, the
obligations of those persons under this Agreement shall be
joint and several. Lender, in its discretion, may (i) bring
suit against Guarantor, or any one or more of the persons
constituting Guarantor, jointly and severally, or against
any one or more of them; (ii) compromise or settle with any
one or more of the persons constituting Guarantor, or any
other obligor of the Obligations, including Borrower, for
such consideration as Lender may deem proper; (iii) release
one or more of the persons constituting Guarantor, or any
other obligor of the Obligations, including Borrower, from
liability; and (iv) otherwise deal with Guarantor and any
other obligor of the obligations, including Borrower, or any
one or more of them, in any manner, and no such action shall
impair the rights of Lender to collect from Guarantor any
amount guaranteed by Guarantor under this Agreement. Nothing
contained in this paragraph shall in any way affect or
impair the rights or obligations of Guarantor with respect
to any other obligor of the Obligations.
(h) Any indebtedness of Borrower held by Guarantor now or in
the future is and shall be subordinated to the Obligations
and any such indebtedness of Borrower shall be collected,
enforced and received by
Guarantor, as trustee for Lender, but without reducing or
affecting in any manner the liability of Guarantor under the
other provisions of this Agreement.
(i) Guarantor shall have no right of, and hereby waives any
claim for, subrogation or reimbursement against Borrower or
any general partner of Borrower by reason of any payment by
Guarantor under this Agreement, whether such right or claim
arises at law or in equity or under any contract or statute,
until the Obligations have been paid in full and there has
expired the maximum possible period thereafter during which
any payment made by Borrower to Lender with respect to the
Obligations could be deemed a preference under the United
States Bankruptcy Code.
(j) If any payment by Borrower is held to constitute a
preference under any applicable bankruptcy, insolvency, or
similar laws, or if for any other reason Lender is required to
refund any sums to Borrower, such refund shall not constitute
a release of any liability of Guarantor under this Agreement.
It is the intention of Lender and Guarantor that Guarantor's
obligations under this Agreement shall not be discharged
except by Guarantor's performance of such obligations and then
only to the extent of such performance.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Guarantor represents and warrants to Lender that the following statements
are true, correct and complete:
SECTION 3.1. Authority. Guarantor has full power and authority to guaranty
the Obligations of Borrower under the Note and to execute, deliver and perform
the obligations of Guarantor in accordance with the terms of this Agreement
without the consent or approval of any Person other than any consent or approval
which has been obtained.
SECTION 3.2. Review of Documents; Financial Statements; Taxes Etc. (a)
Guarantor has or has had an opportunity to examine the Loan Documents existing
on the date hereof, (b) Guarantor has a direct or indirect financial interest in
Borrower and the Loan to Borrower by the Lender will result in financial
benefits to the Guarantor, (c) the most recent financial statements of Guarantor
heretofore furnished to the Lender correctly and accurately present the
financial condition of Guarantor as of the date of such financial statement in
all material respects, and no material adverse change in the financial condition
of Guarantor has occurred since the date of such financial statement, (d)
Guarantor has filed, or has obtained extensions for the filing of, all federal,
state and local tax returns required to be filed by Guarantor, and has paid all
taxes shown as due on such returns, and (e) this Agreement constitutes the valid
and binding obligation of Guarantor enforceable in accordance with its terms.
SECTION 3.3. Survival. All representations and warranties contained in or
made under or in connection with this Agreement (a) shall survive the execution,
delivery and performance of this Agreement, and (b) shall be true, correct and
complete at all times during which any of the Obligations (or commitments
therefor) are outstanding with the same effect as if such representations and
warranties had been made at such times.
ARTICLE IV
COVENANTS
SECTION 4.1. Further Assurances. Guarantor covenants and agrees with Lender
that Guarantor shall, from time to time, at its expense, execute, deliver,
acknowledge and cause to be duly filed, recorded or registered, if applicable,
any other certificate, agreement, statement, instrument or other document and
take any other action that from time to time may be necessary or desirable, or
that Lender may reasonably request, in order to create, grant, convey, confirm,
preserve, validate or better assure to Lender the rights intended to be granted,
now or in the future, to Lender under this Agreement and the other Loan
Documents.
ARTICLE V
DEFAULT
The occurrence of any one or more of the following events shall constitute
a default under the provisions of this Agreement, and the term "Event of
Default" means, whenever it is used in this Agreement, any one or more of the
following events:
SECTION 5.1. Payment of Obligations. If any of the Obligations are not paid
as and when due and payable in accordance with the provisions of this Agreement,
the Note, and/or any of the other Loan Documents after giving effect to any
applicable grace or cure periods, if any;
SECTION 5.2. Perform, etc. Other Provisions of This Agreement and other
Loan Documents. The failure of Guarantor to perform, observe or comply with any
of the provisions of this Agreement not otherwise covered by other subsections
of this Section 5 or any of the other Loan Documents, and such failure is not
cured to the satisfaction of Lender within a period of thirty (30) days after
the date of written notice thereof by Lender to Guarantor (or, whenever such a
failure is such that it cannot be cured within thirty (30) days after Guarantor
is given notice thereof, then within sixty (60) days from the date after
Guarantor is given notice thereof if, in the sole but reasonable discretion of
Lender, Guarantor is taking appropriate corrective action to cure the failure
and such failure will not impair the ability of Guarantor to perform its
obligations under this Agreement and the other Loan Documents or otherwise
adversely affects Lender's security in or right to the Collateral).
SECTION 5.3. Performance of Provisions of the other Loan Documents. If an
Event of Default (as defined in the Deed of Trust) occurs, or subject to
applicable notice and cure periods provided therein, if Borrower or Guarantor,
as applicable, fails to perform, observe, or comply with any of the provisions
of the Note or any of the other Loan Documents.
SECTION 5.4. Representations and Warranties. If any representation or
warranty contained herein or any statement or representation made in any
certificate or other information at any time given by or on behalf of Guarantor
or Borrower or furnished in connection with this Agreement or any of the other
Loan Documents shall prove to be false or incorrect in any material respect on
the date as of which made;
SECTION 5.5. Liquidation, Termination, Dissolution, etc. If Guarantor,
SGRV, ARV PIII or Borrower shall liquidate, dissolve or terminate its existence,
or if, without the prior written consent of Lender, any change occurs in the
ownership or control of Guarantor, Borrower, SGRV or ARV PIII;
SECTION 5.6. Inability to Pay Debts. If Guarantor, Borrower, SGRV or ARV
PIII admits in writing or in sworn testimony the inability to pay its debts as
they mature or shall make any assignment for the benefit of any of its
creditors;
SECTION 5.7. Bankruptcy. If proceedings in bankruptcy, or for
reorganization of Guarantor, Borrower, SGRV or ARV PIII, or for the readjustment
of any debts of Guarantor, Borrower, SGRV or ARV PIII, under the Bankruptcy
Code, as amended, or any part thereof, or under any other applicable laws,
whether state or federal, for the relief of debtors, now or hereafter existing,
shall be commenced against or by Guarantor, Borrower, SGRV or ARV PIII
(provided, however, that with respect to any such proceedings not instituted by
Guarantor, Borrower, SGRV or ARV PIII, such proceedings will not be an Event of
Default if discharged within ninety (90) days of their commencement);
SECTION 5.8. Receiver. A receiver or trustee shall be appointed for
Guarantor, Borrower, SGRV or ARV PIII or for any substantial part of the assets
of Guarantor, Borrower, SGRV or ARV PIII, or any proceedings shall be instituted
for the dissolution or the full or partial liquidation of the Guarantor,
Borrower, SGRV or ARV PIII (provided, however, that with respect to any such
appointments not requested or instituted by Guarantor, Borrower, SGRV or ARV
PIII, such appointment or proceedings will not be an Event of Default if such
receiver or trustee is discharged within ninety (90) days of his or her
appointment and/or such proceedings are discharged within ninety (90) days of
their commencement).
ARTICLE VI
RIGHTS AND REMEDIES
SECTION 6.1. Rights and Remedies. Upon the occurrence of an Event of
Default under the provisions of this Agreement, an amount equal to the lesser of
(i) total of the Obligations then outstanding (whether matured or unmatured and
regardless of whether any portion of such Obligations are then due and payable
by Borrower), or (ii) $1,000,000 (absent fraud or willful misconduct, in which
event the total amount of the Obligations then outstanding as set forth in
clause (i) above), shall immediately and automatically be due and payable by
Guarantor to Lender, without further action by, or notice of any kind from,
Lender unless expressly provided for herein, and Lender may at any time and from
time to time thereafter exercise any powers, rights and remedies available to
Lender under the provisions of this Agreement, the other Loan Documents and
applicable laws to liquidate the Collateral, all such powers, rights and
remedies being cumulative and enforceable alternatively, successively or
concurrently. Each and every Event of Default hereunder shall give rise to a
separate cause of action hereunder, and separate actions may be brought
hereunder as each cause of action arises.
SECTION 6.2. Application. The proceeds of any payment for the payment of
all or any part of the Obligations coming into Lender's possession may be held,
segregated, or applied by Lender to any of the Obligations, whether matured or
unmatured, in such order and manner as Lender may determine in its sole
discretion.
SECTION 6.3. No Waiver, etc. No failure or delay by Lender to
insist upon the strict performance of any term, condition, covenant or agreement
of this Agreement or of the other Loan Documents, or to exercise any right,
power or remedy consequent upon a breach thereof, shall constitute a waiver of
any such term, condition, covenant or agreement or of any such breach, or
preclude Lender from exercising any such right, power or remedy at any later
time or times. By accepting payment after the due date of any amount payable
under this Agreement or under any of the other Loan Documents, Lender shall not
be deemed to waive the right either to require prompt payment when due of all
other amounts payable under this Agreement or under any of the other Loan
Documents, or to declare a default for failure to effect such prompt payment of
any such other amount. The payment by Guarantor, or any other Person and the
acceptance by Lender or any other amount due and payable under the provisions of
this Agreement or the other Loan Documents at any time during which a default or
Event of Default exists shall not in any way or manner be construed as a waiver
of such default or Event of Default by Lender or preclude Lender from exercising
any right of power or remedy consequent upon such default or Event of Default.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. Course of Dealing; Amendment. No course of dealing between
Lender and Guarantor shall be effective to amend, modify or change any provision
of this Agreement or the other Loan Documents. Lender shall have the right at
all times to enforce the provisions of this Agreement and the other Loan
Documents in strict accordance with the provisions hereof and thereof,
notwithstanding any conduct or custom on the part of Lender in refraining from
so doing at any time or times. The failure of Lender at any time or times to
enforce its rights under such provisions, strictly in accordance with the same,
shall not be construed as having created a custom in any way or manner contrary
to specific provisions of this Agreement or the other Loan Documents or as
having in any way or manner modified or waived the same. This Agreement may not
be amended, modified, or changed in any respect except by an agreement in
writing signed by Lender and Guarantor.
SECTION 7.2. Waiver of Default. Lender may, at any time and from time to
time, execute and deliver to Guarantor a written instrument waiving, on such
terms and conditions as Lender may specify in such written instrument, any of
the requirements of this Agreement or any Event of Default or default and its
consequences, provided, that any such waiver shall be for such period and
subject to such conditions as shall be specified in any such instrument. In the
case of any such waiver, Guarantor and Lender shall be restored to their former
positions prior to such Event of Default or default and shall have the same
rights as they had hereunder. No such waiver shall extend to any subsequent or
other Event of Default or default, or impair any right consequent thereto and
shall be effective only in the specific instance and for the specific purpose
for which given.
SECTION 7.3. Guaranty Absolute. All rights and remedies of Lender hereunder
and under applicable laws, the guaranty and all agreements and obligations of
Guarantor hereunder shall be absolute and unconditional irrespective of, and
shall not be released, discharged, impaired or affected by (a) any lack of
validity or enforceability of the Note, or any of the other Loan Documents, (b)
any change in the amount of any or all of the Obligations or any change in the
time, manner or place of payment of any or all of the Obligations or any change
of any other provision or term of any or all of the Obligations, (c) any
amendment to, or modification or waiver of, consent to, or departure from, any
of the provisions of any of the Loan Documents, (d) any exchange, substitution,
release, addition or non-perfection of any collateral and security for any of
the Obligations, (e) the release of, in whole or in part, any Person, including,
without limitation, Borrower or Guarantor, obligated or liable for the payment
of all or any part of the Obligations or any attempt, pursuit, enforcement or
exhaustion of any rights or remedies Lender may have against any such Person or
against any collateral and security for any or all of the Obligations, (f) the
failure, omission, lack of diligence or delay by Lender to exercise or enforce
any rights and remedies it may have under any of the Loan Documents or
applicable laws, and (g) any other event or circumstance which might otherwise
constitute a legal or equitable discharge, release or defense of Guarantor or of
the Collateral.
SECTION 7.4. Notices. All notices, requests and demands to or upon the
parties to this Agreement shall be deemed to have been given or made when
delivered by hand, or when deposited in the mail, postage prepaid by registered
or certified mail, return receipt requested, or, in the case of telegraphic
notice, when delivered to the telegraphic company and when properly transmitted,
addressed as provided under the Deed of Trust (the address of the Guarantor
shall for all notice purposes be the same as the Borrower's address set forth in
the Deed of Trust).
SECTION 7.5. Enforcement Costs. Guarantor shall pay to Lender upon demand
all Enforcement Costs. Enforcement Costs shall be included in the Obligations
secured hereby.
SECTION 7.6. Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(a) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of Lender in order to
carry out the intentions of the parties hereto as nearly as may be possible, (b)
the invalidity or unenforceability of any provision hereof in any jurisdiction
shall not affect the validity or enforceability of such provision in any other
jurisdiction, and (c) the parties hereto shall endeavor, in good faith,
negotiations to replace the invalid or unenforceable provisions with valid and
enforceable provisions, the economic effect of which comes as close as possible
to that of the invalid or unenforceable provisions.
SECTION 7.7. Assignment. Lender may, without prior notice to, or consent
of, Guarantor, sell, assign or transfer to any Person or Persons all or any part
of the Obligations, and in the event of any such assignment and rights and
remedies of Lender hereunder shall extend to, and vest in, any such assignee or
assignees who shall have the right to enforce the provisions of this Agreement
as fully as Lender, provided that Lender shall continue to have the unimpaired
right to enforce the provisions of this Agreement as to so much of
the Obligations that it has not sold, assigned or transferred. Guarantor will
fully cooperate with Lender in connection with any such assignment and will
execute and deliver such consents and acceptances to any such assignment and
amendments to this Agreement in order to effect any such assignment (including,
without limitation, the appointment of Lender as agent for itself and all
assignees).
SECTION 7.8. Survival. All representations, warranties and covenants
contained among the provisions of this Agreement shall survive the execution and
delivery of this Agreement and all other Loan Documents.
SECTION 7.9. Binding Effect. This Agreement shall be binding upon and inure
to the benefit of Guarantor and Lender and their respective personal
representatives, successors and assigns, except that Guarantor shall not have
the right to assign their rights hereunder or any interest herein without the
prior written consent of Lender.
SECTION 7.10. Continuing Agreement. This Agreement shall be continuing and
binding on Guarantor regardless of how long before or after the date hereof any
of the Obligations were or are incurred. This Agreement shall terminate when all
of the Obligations have been indefeasibly paid in full and no commitments
therefor are outstanding.
SECTION 7.11. Applicable Law. This Agreement and the rights and obligations
of the parties hereunder shall be construed and interpreted in accordance with
the laws of the State of California, both in interpretation and performance.
SECTION 7.12. Exhibits and Schedules. Any exhibits and schedules attached
to this Agreement are an integral part hereof and are hereby incorporated herein
and included in the term "this Agreement."
SECTION 7.13. Headings. Article, Section, paragraph, and clause headings in
this Agreement are included herein for convenience of reference only, shall not
constitute a part of this Agreement for any other purpose, and shall not be
deemed to affect the meaning or construction of any of the provisions hereof.
SECTION 7.14. Jurisdiction and Venue. Guarantor agrees that any controversy
arising under or in relation to this Agreement shall be litigated exclusively in
Ventura County, California (the "the Jurisdiction"). The state and federal
courts and authorities with jurisdiction in the Jurisdiction shall have
exclusive jurisdiction over all controversies which shall arise under or in
relation to this Agreement, the Note or any other Loan Document. Guarantor
irrevocably consents to service, jurisdiction, and venue of such courts for any
such litigation and waives any other venue to which it might be entitled by
virtue of domicile, habitual residence, or otherwise.
SECTION 7.15. WAIVER OF JURY TRIAL. GUARANTOR AND LENDER EACH (A) AGREES
NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS
AGREEMENT OR THE RELATIONSHIP BETWEEN THE PARTIES AS GUARANTOR AND LENDER THAT
IS TRIABLE OF RIGHT BY A JURY AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY WITH
RESPECT TO SUCH ISSUE TO THE EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE
FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY EACH PARTY,
KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL.
IN WITNESS WHEREOF, Guarantor has executed and delivered this Agreement
under its seal as of the day and year first written above.
ATTEST: ARV ASSISTED LIVING, INC.,
a Delaware corporation
_____________________ By: /s/ Abdo H. Khoury
(SEAL) -------------------------------
Name: Abdo H. Khoury
Title: President