PLEDGE AGREEMENT
THIS AGREEMENT is made and entered into as of this 16th day of March, 2004,
by EMERITUS CORPORATION, a Washington corporation ("Borrower") for the benefit
of U.S. BANK NATIONAL ASSOCIATION ("U.S. Bank").
RECITALS:
A. Concurrently with the execution hereof, Borrower and U.S. Bank have
entered into that certain credit agreement (collectively referred to, together
with all renewals, amendments, modifications and restatements thereto, as the
"Credit Agreement") whereby U.S. Bank has agreed to extend certain credit
facilities to Borrower.
B. To induce U.S. Bank to enter into the Credit Agreement, Borrower desires
to assign and pledge to U.S. Bank and to grant to U.S. Bank a security interest
in and to the Pledged Assets (hereafter defined) to secure the Secured
Obligations (hereafter defined).
NOW, THEREFORE, in consideration of the premises and to induce U.S. Bank to
enter into the Credit Agreement and to extend credit to Borrower pursuant to the
Credit Agreement, Borrower agrees as follows:
1. DEFINITIONS, ETC.
1.1 Terms Defined
Unless otherwise defined herein, terms defined in the Credit Agreement
shall have such meanings when used herein. For the purposes of this Agreement,
the following terms shall have the following meanings:
"Company" means Senior Healthcare Partners, LLC, a Colorado limited liability
company.
"Event of Default" means the occurrence of any default or event of default under
the Credit Agreement or any other Loan Document.
"Operating Agreement" means that certain the Amended and Restated Operating
Agreement of Senior Healthcare Partners, LLC dated as of January 1, 2000
(together with all amendments, modifications, supplements, and exhibits
thereto).
"Pledged Assets" means the Pledged Membership Interest and from and after the
sale of the Scottsdale Property, if applicable, the Pledged Note.
"Pledged Membership Interest" means (a) all of Borrower's present and future
right, title and interest in its membership and ownership interest in the
Company, (b) Borrower's general intangibles arising out of or related to
Borrower's ownership interests in the Company, (c) the rights, powers, and
obligations associated with Borrower's ownership interest in the Company under
the Operating Agreement or otherwise, (d) profits, dividends, distributions, and
all other rights to payment of Borrower arising out of or related to Borrower's
ownership interest in the Company, whether in cash, in kind, or in any other
form, and during its continuance and upon its dissolution, and (e) all of the
proceeds of the foregoing in every form, including without limitation, cash,
accounts, general intangibles, instruments, investment property and financial
assets.
"Pledged Note" means (a) all of Borrower's present and future right, title and
interest, if any, in any promissory note made by the purchaser of the Scottsdale
Property and payable to the order of Borrower, the possession of which note
shall be delivered to U.S. Bank in the event of the receipt thereof by Borrower,
as well as all amendments, replacements and renewals thereof, (b) Borrower's
general intangibles arising out of or related to such promissory note, (c) the
rights, powers, and obligations associated with Borrower's ownership interest
such promissory note, (d) profits, dividends, distributions, and all other
rights to payment of Borrower arising out of or related to Borrower's ownership
interest in such promissory note, whether in cash, in kind, or in any other
form, and (e) all of the proceeds of the foregoing in every form, including
without limitation, cash, accounts, general intangibles, instruments, investment
property and financial assets.
"Secured Obligations" means (a) all past, present and future indebtedness and
obligations of Borrower to U.S. Bank now existing or hereafter created under the
Credit Agreement or the other Loan Documents, including any refinancings,
renewals or extensions of, or substitutions thereof; (b) all liabilities and
obligations of Borrower hereunder; (c) all costs, expenses and liabilities,
including, without limitation, reasonable attorneys' fees, which may be incurred
or advances which may be made by U.S. Bank in any way in connection with any of
the obligations of Borrower and any security therefor.
1.2 Incorporation of Recitals and Exhibits
The foregoing recitals are incorporated into this Agreement by reference.
All references to "Exhibits" contained herein are references to exhibits
attached hereto, the terms of which are made a part hereof for all purposes.
2. PLEDGE AND CREATION OF SECURITY INTEREST
2.1 Pledge and Grant of Security Interest
As security for the full, prompt and complete payment and performance by
Borrower of each of the Secured Obligations, Borrower hereby pledges, assigns,
hypothecates, transfers and delivers to U.S. Bank the Pledged Assets or so much
thereof as may from time to time be held by Borrower, it being understood and
agreed that as of the date hereof the sale of the Scottsdale Property has not
occurred and accordingly Borrower is not the holder of the Pledged Note, but
that it is the intent of the parties that if, and upon the sale of the
Scottsdale Property by Borrower and the delivery of the Pledged Note to
Borrower, the same shall be included in the Pledged Assets without the need for
further action or execution of further documents by Borrower or by U.S. Bank.
Borrower further grants to U.S. Bank a security interest under the Uniform
Commercial Code of the state of Washington, as amended, in and to the Pledged
Assets.
2.2 Voting Rights
Unless and until an Event of Default shall have occurred, Borrower shall be
permitted to exercise all voting, corporate, consensual and other rights with
respect to the Pledged Membership Interest, provided, however, that no vote
shall be cast or corporate right exercised or other action taken which, in U.S.
Bank's reasonable judgment, would impair the Pledged Membership Interest or
which would be inconsistent with or result in any violation of any provision of
this Agreement, or the other Loan Documents.
3. REPRESENTATIONS AND WARRANTIES
Borrower hereby represents and warrants that:
3.1 No Approvals
No consent, license, permit, approval or authorization of, or filing with,
or notice or report to, or registration, filing or declaration with, any Person
(including, without limitation, any governmental authority or creditors of
Borrower), by Borrower is required in connection with the execution, delivery,
performance, validity or enforceability by or against Borrower of this Agreement
other than those consents, licenses, permits, approvals, authorizations,
filings, registrations or declarations which have been received or made by
Borrower prior to the execution of this Agreement.
3.2 Enforceability
This Agreement has been duly executed and delivered by Borrower and
constitutes a legal, valid and binding obligation of the Borrower enforceable
against Borrower in accordance with its terms, except as such enforceability may
be limited by creditors rights laws and general principles of equity.
3.3 Other Agreements
The execution, delivery and performance of this Agreement do not and will
not violate any requirement of law or any contractual obligation applicable to
or binding upon Borrower.
3.4 Litigation
No litigation, arbitration, investigation or proceeding of or before any
arbitrator or governmental authority is pending or, to the best knowledge of
Borrower, threatened with respect to this Agreement or any of the transactions
contemplated hereby.
3.5 Ownership; Title
(a) Borrower is the record, legal and beneficial owner of, and has good
and marketable title to, the Pledged Membership Interest and if and upon a
closing of the sale of the Scottsdale Property will be the record, legal and
beneficial owner of, and will have good and marketable title to the Pledged
Note. As of the date of this Agreement, Borrower holds 29.5 percent of the
membership interests of the Company.
(b) Borrower will, at its own expense, defend U.S. Bank's right, title and
security interest in and to the Pledged Assets or so much thereof as may from
time to time be pledged to U.S. Bank in accordance with the terms hereof against
the claims of any Person.
3.6 No Encumbrances
Borrower represents that all of the Pledged Assets are, or as of the date
on which Borrower acquires title thereto, in the case of the Pledged Note, will
be, owned by the Borrower free of any pledge, mortgage, hypothecation, lien,
charge, encumbrance or security interest in such shares or the proceeds thereof,
except for that granted hereunder.
3.7 First Priority Lien
The lien against the Pledged Assets granted pursuant to this Agreement
constitutes, or upon and at the time of Borrower's acquisition of title thereto,
in the case of the Pledged Note, will constitute, a valid, perfected first
priority lien on the Pledged Assets, enforceable as such against all creditors
of the Borrower and any Persons purporting to purchase any of the Pledged Assets
from Borrower.
3.8 Investment Company
Borrower is not an "investment company" or a company "controlled" by an
"investment company" (as each of the quoted terms is defined or used in the
Investment Company Act of 1940, as amended).
3.9 Continuing Representations
Borrower agrees that the foregoing representations and warranties shall be
deemed to have been made by Borrower on the date of each borrowing by Borrower
from U.S. Bank on and as of such date as though made hereunder on and as of such
date.
4. COVENANTS
Borrower covenants and agrees with U.S. Bank that, from and after the date
of this Agreement until the Secured Obligations are paid in full:
4.1 Endorsement and Delivery
(a) In the event of the sale of the Scottsdale Property and the
delivery to Borrower of the Pledged Note, Borrower shall deliver physical
possession of the original Pledged Note to U.S. Bank, endorsed as follows: "Pay
to the order of U.S. Bank National Association."
(b) In the event that there are issued to Borrower any certificates
evidencing any of the Pledged Membership Interest, Borrower shall immediately
deliver physical possession of such certificates to U.S. Bank so that U.S.
Bank's security interest may be properly perfected by possession, and shall
deliver with each such certificate an executed assignment separate from
certificate in a form designated by U.S. Bank.
4.2 No Other Liens
Borrower will not create or permit the existence of any lien or security
interest other than that hereby created on the Pledged Assets without the
written consent of U.S. Bank.
4.3 Duty With Respect to Payments; Distributions
(a) If Borrower shall, as a result of Borrower's ownership of the
Pledged Membership Interest, become entitled to receive or shall receive any
stock certificate (including, without limitation, any certificate representing a
stock dividend or a distribution in connection with any reclassification,
increase or reduction of capital or any certificate issued in connection with
any reorganization), option or rights, whether in addition to, in substitution
of, as a conversion of, or in exchange for the Pledged Membership Interest, or
otherwise in respect thereof, Borrower shall accept the same as U.S. Bank's
agent, hold the same in trust for U.S. Bank and deliver the same forthwith to
U.S. Bank in the exact form received, duly endorsed by Borrower to U.S. Bank, if
required, together with an undated stock power covering such certificate duly
executed in blank and with, if U.S. Bank so requests, signature guaranteed, to
be held by U.S. Bank hereunder as collateral security for the Secured
Obligations. Any sums paid upon or in respect of any of the Pledged Membership
Interest upon the liquidation or dissolution of the Company shall be paid over
to U.S. Bank to be held by it hereunder as collateral security for the Secured
Obligations, and in case any distribution of capital shall be made on or in
respect of the Pledged Membership Interest or any property shall be distributed
upon or with respect to the Pledged Membership Interest pursuant to the
recapitalization or reclassification of the capital of the Company or pursuant
to the reorganization thereof, the property so distributed shall be delivered to
U.S. Bank to be held by it, subject to the terms hereof, as collateral security
for the Secured Obligations. If any sums of money or property so paid or
distributed in respect of the Pledged Membership Interest shall be received by
Borrower, Borrower shall, until such money or property is paid or delivered to
U.S. Bank, hold such money or property in trust for U.S. Bank, segregated from
other funds of Borrower, as collateral security for the Secured Obligations.
Notwithstanding the foregoing, prior to the occurrence and continuance of an
Event of Default, Borrower shall be entitled to receive and retain any
distributions made to the members of the Company in the ordinary course of its
business.
4.4 Sale or Encumbrance
Without the prior written consent of U.S. Bank, Borrower will not (a) sell,
assign, transfer, exchange or otherwise dispose of, or grant any option with
respect to, the Pledged Assets, or (b) create, incur or permit to exist any lien
or option in favor of, or any claim of any Person with respect to, any of the
Pledged Assets, or any interest therein, except for the lien provided for by
this Agreement. Borrower will defend the right, title and interest of U.S. Bank
in and to the Pledged Assets against the claims and demands of all Persons
whomsoever other than Persons making a claim as a result of the acts or
omissions of U.S. Bank.
4.5 Further Assurances
At any time and from time to time, upon the written request of U.S. Bank,
and at the sole expense of Borrower, Borrower will promptly and duly execute and
deliver such further instruments and documents and take such further actions as
U.S. Bank may reasonably request for the purposes of obtaining or preserving the
full benefits of this Agreement and of the rights and powers herein granted.
If, in addition to the Pledged Note, any amount payable under or in connection
with the Pledged Assets shall be or become evidenced by any promissory note,
other instrument or chattel paper, such note, instrument or chattel paper shall
be immediately delivered to U.S. Bank duly endorsed in a manner satisfactory to
U.S. Bank to be held as collateral pursuant to this Agreement.
4.6 Indemnification
Borrower agrees to pay, and to save U.S. Bank harmless from, any and all
liabilities with respect to, or resulting from any delay in paying, any and all
stamp, excise, sales or other taxes (except for the tax imposed on the overall
net income of U.S. Bank) which may be payable or determined to be payable with
respect to any of the Pledged Assets or in connection with any of the
transactions contemplated by this Agreement.
4.7 Private Sale
Borrower recognizes that U.S. Bank may be unable to effect a public sale of
any or all of the Pledged Assets, and may be compelled to resort to one or more
private sales thereof. Borrower acknowledges and agrees that any such private
sale may result in prices and other terms less favorable to U.S. Bank than if
such sale were a public sale and, notwithstanding such circumstances, agrees
that any such private sale shall not be deemed to have been made in a
commercially unreasonable manner merely because it was a private sale.
5. RIGHTS AND REMEDIES
5.1 Remedies
Upon the occurrence and during the continuance of an Event of Default, U.S.
Bank may exercise, in addition to all other rights and remedies granted in this
Agreement and in any other instrument or agreement securing, evidencing or
relating to the Secured Obligations, all rights and remedies of a secured party
under the Uniform Commercial Code of the state of Washington. Without limiting
the generality of the foregoing, upon the occurrence and during the continuance
of an Event of Default, U.S. Bank without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by the Credit Agreement, any of the other Loan Documents or by law or
referred to below) to or upon Borrower or any other Person (all and each of
which demands, defenses, advertisements and notices are hereby waived to the
extent not prohibited by law), may in such circumstances forthwith collect,
receive, appropriate and realize upon the Pledged Assets, or any part thereof,
and/or may forthwith sell, assign, give an option or options to purchase or
otherwise dispose of and deliver the Pledged Assets or any part thereof (or
contract to do any of the foregoing), in one or more parcels at public or
private sale or sales, in the over-the-counter market, at any exchange broker's
board or at U.S. Bank's offices or elsewhere upon such terms and conditions as
it may deem advisable and at such prices as it may deem best, for cash or on
credit or for future delivery without assumption of any credit risk. U.S. Bank
shall have the right upon any such public sale or sales and, to the extent
permitted by law, upon any such private sale or sales to purchase the whole or
any part of the Pledged Assets so sold, free and clear of any right or equity of
redemption in Borrower, which right or equity is hereby waived or released to
the extent not prohibited by law. U.S. Bank shall apply the net proceeds of any
such collection, recovery, receipt, appropriation, realization or sale, after
deducting all reasonable costs and expenses of every kind incurred therein or
incidental to the care or safekeeping of any of the Pledged Assets or in any way
relating to the Pledged Assets or the rights of U.S. Bank hereunder, including,
without limitation, reasonable attorneys' fees and disbursements to the payment
in whole or in part of the Secured Obligations in such order as U.S. Bank may
elect, and only after such application and after the payment by U.S. Bank of any
other amount required by any provision of law, need U.S. Bank account for the
surplus, if any, to Borrower.
5.2 Rights re Pledge Assets
If an Event of Default shall occur: (a) U.S. Bank shall have the right to
receive any and all cash including cash dividends paid in respect of the Pledged
Assets and make application thereof to the Secured Obligations in such order as
it may determine and, subject to the provisions of Section 16.2 of the Operating
Agreement as in effect as of the date of this Agreement, (b) if and to the
extent not previously done, the Pledged Assets shall be registered in the name
of U.S. Bank or its nominee, and U.S. Bank or its nominee may thereafter
exercise (i) all voting, corporate, consensual and other rights pertaining to
the Pledged Assets and (ii) any and all rights of conversion, exchange,
subscription and any other rights, privileges or options pertaining to the
Pledged Assets as if it were the absolute owner thereof (including, without
limitation, in the case of the Pledged Membership Interest, the right to
exchange at its discretion any and all of the Pledged Membership Interest upon
the merger, consolidation, reorganization, recapitalization or other fundamental
change in the corporate structure of the Company, or upon the exercise by
Borrower or U.S. Bank of any right, privilege or option pertaining to such
Pledged Assets, and in connection therewith, the right to deposit and deliver
any and all of the Pledged Membership Interest with any committee, depositary,
transfer agent, registrar or other designated agency upon such terms and
conditions as it may determine), all without liability except to account for
property actually received by it, but U.S. Bank shall have no duty to exercise
any such right, privilege or option and shall not be responsible for any failure
to do so or delay in so doing absent gross negligence or willful misconduct.
5.3 Right to Proceed Against Pledged Assets
The rights of U.S. Bank hereunder shall not be conditioned or contingent
upon the pursuit by U.S. Bank of any right or remedy against Borrower or against
any other Person which may be or become liable in respect of all or any part of
the Secured Obligations or against any other collateral therefor, guarantee
thereof or right of offset with respect thereto. Absent gross negligence or
willful misconduct, U.S. Bank shall not be liable for any failure to demand,
collect or realize upon all or any part of the Pledged Assets or for any delay
in doing so, nor shall it be under any obligation to sell or otherwise dispose
of any Pledged Assets upon the request of the Borrower or any other Person or to
take any other action whatsoever with regard to the Pledged Assets or any part
thereof except that U.S. Bank shall be required to exercise reasonable care with
respect to the safe keeping of collateral in its possession.
5.4 Notice of Sale, Etc.
To the extent permitted by applicable law and absent gross negligence or
willful misconduct, Borrower waives all claims, damages and demands it may
acquire against U.S. Bank arising out of the exercise by U.S. Bank of any of its
rights hereunder. If any notice of a proposed sale or other disposition of
Pledged Assets shall be required by law, such notice shall be deemed reasonable
and proper if given at least ten business days before such sale or other
disposition. To the extent not prohibited by applicable law, Borrower further
waives and agrees not to assert any rights or privileges which it may acquire
under applicable law.
6. GENERAL PROVISIONS
6.1 Limitation on Duties Regarding Pledged Assets
U.S. Bank's sole duty with respect to the custody, safekeeping and physical
preservation of the Pledged Assets in its possession, shall be to deal with such
Pledged Assets in the same manner as the U.S. Bank deals with similar securities
and property for its own account. Absent gross negligence or willful
misconduct, neither U.S. Bank nor any of its respective directors, officers,
employees or agents shall be liable for failure to demand, collect or realize
upon any of the Pledged Assets or for any delay in doing so or shall be under
any obligation to sell or otherwise dispose of any Pledged Assets upon the
request of Borrower or otherwise.
6.2 Waivers by Borrower
Except for notices specifically required by the Credit Agreement or the
other Loan Documents, including this Agreement, Borrower hereby (a) waives
notice of any advances made by U.S. Bank or pursuant to any extension, renewal
or modification thereof; (b) waives, with respect to the Secured Obligations,
grace, demand, presentment, notice of dishonor and protest; (c) agrees that U.S.
Bank, before proceeding against Borrower under this Agreement, shall not be
bound to exhaust its recourse or take any action against any person or entity,
or to proceed against any collateral or against any particular collateral, but
U.S. Bank may make such demands and take such actions as it deems advisable; (d)
agrees that U.S. Bank, without affecting the liability of Borrower under this
Agreement, may with or without notice or consideration release any Person or
entity liable for the Secured Obligations or any collateral for the Secured
Obligations; and (e) waives, with respect to the Secured Obligations, any
defense based upon any change in the name, location, composition or structure of
Borrower, or any change in the type of business conducted by Borrower, or any
other change in the identity of legal status of Borrower.
6.3 Expenses Incurred by U.S. Bank
U.S. Bank is not required to, but may at its option, pay any tax or other
charge or expense payable by Borrower and any filing or recording fees, if the
same are not paid by Borrower when due or within any applicable grace or cure
period, and any amounts so paid shall be repayable by Borrower upon demand.
Borrower will also repay upon demand all of U.S. Bank's reasonable expenses
incurred in collecting, conserving or protecting the Pledged Assets. All such
sums shall bear interest at the default rate as provided in the Credit Agreement
from the date of U.S. Bank's payment until Borrower's repayment. All such sums
and interest thereon shall be secured by the security interest granted herein.
The rights granted by this Section 6.3 are not a waiver of any other rights of
U.S. Bank arising from breach of any of Borrower's covenants.
6.4 Nonwaivers
This Agreement shall not be qualified or supplemented by course of dealing.
No waiver, modification, termination or discharge by U.S. Bank of any of the
terms or conditions hereof shall be effective unless in writing signed by U.S.
Bank. No waiver or indulgence by U.S. Bank as to any required performance by
Borrower shall constitute a waiver as to any subsequent required performance or
other obligations of Borrower hereunder.
6.5 Attorneys' Fees, Costs
Borrower agrees to pay to U.S. Bank any and all costs and expenses,
including reasonable attorneys' fees, incurred by U.S. Bank in protecting or
enforcing its rights under the terms of this Agreement, including challenges or
claims by Borrower or any other person, whether or not a lawsuit is commenced
except to the extent the same arise from or assert gross negligence or willful
misconduct by U.S. Bank. Attorneys' fees shall include services rendered at
arbitration, trial and any appeal therefrom as well as services rendered
subsequent to judgment and obtaining execution thereon and in any bankruptcy
proceeding of Borrower. If paid by U.S. Bank, the fees, costs and expenses
shall bear interest at the then applicable rate as provided in the Credit
Agreement from the date paid by U.S. Bank until paid in full by Borrower.
Payment of costs and expenses, including attorneys' fees, shall be secured by
the security interest herein granted.
6.6 Sale and Assignment by U.S. Bank
U.S. Bank may assign or transfer the whole or any part of the Secured
Obligations, and may transfer therewith as collateral security the whole or any
part of the Pledged Assets; and all obligations, rights, powers and privileges
herein provided shall inure to the benefit of the assignee and shall bind the
heirs, executors, administrators, successors or assigns of the parties hereto.
6.7 Governing Law
This Agreement and the Secured Obligations are subject to the laws of the
State of Washington and are to be construed in accordance therewith.
6.8 Consent to Jurisdiction, Service and Venue
For the purpose of performance of the obligations under or otherwise in
connection herewith, Borrower hereby consents to the jurisdiction and venue of
the courts of the state of Washington or of any federal court located in such
state, including, but not limited to, the Superior Court of Washington for King
County and the United States District Court for the Western District of
Washington. Borrower hereby waives the right to contest the jurisdiction and
venue of courts located in King County, Washington, on the ground of
inconvenience or otherwise and waives any right to bring any action or
proceeding against U.S. Bank in any court outside King County, Washington. The
provisions of this section do not limit or otherwise affect the right of U.S.
Bank to institute and conduct action in any other appropriate manner,
jurisdiction or court.
6.9 Jury Waiver
EACH OF BORROWER AND U.S. BANK HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF
ANY CLAIM ARISING OUT OF THE CREDIT AGREEMENT, THIS AGREEMENT, OR ANY OTHER LOAN
DOCUMENTS, WHETHER NOW OR HEREAFTER ARISING AND WHETHER SOUNDING IN CONTRACT,
TORT OR OTHERWISE, AND EACH HEREBY CONSENTS AND AGREES THAT ANY SUCH CLAIM SHALL
BE DECIDED BY TRIAL WITHOUT A JURY AND THAT EITHER PARTY MAY FILE AN ORIGINAL
COUNTERPART OR COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
WAIVER AND AGREEMENT CONTAINED HEREIN.
6.10 Powers Coupled with an Interest
All authorizations and agencies herein contained with respect to the
Pledged Assets are irrevocable and powers coupled with an interest.
6.11 Severability
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
6.12 Irrevocable Authorization and Instruction to Company
Borrower hereby authorizes and instructs the Company and the maker of the
Pledged Noted, if applicable, to comply with any instruction received by it from
U.S. Bank in writing that (a) states that all or any portion of the Secured
Obligations has been declared or has become due and payable in accordance with
the terms of the Credit Agreement and remains unpaid and (b) is otherwise in
accordance with the terms of this Agreement, without any other or further
instructions from Borrower, and Borrower agrees that the Company shall be fully
protected in so complying.
6.14 Notices
All notices, consents, demands, approvals and communications hereunder
shall be deemed to have been duly given, made or served, if given, made or
served pursuant to and in accordance with Section 9.1 of the Credit Agreement
and shall be deemed received upon actual receipt or refusal of receipt thereof
as set forth in Section 9.1 of the Credit Agreement.
6.15 Entire Agreement
This Agreement, together with the Credit Agreement and the other Loan
Documents, sets forth all the promises, covenants, agreements, conditions and
understandings between the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied oral or written,
with respect thereto, except as contained or referred to herein. This Agreement
may not be amended, orally, but only by an instrument in writing signed by the
parties hereto.
6.16 Counterparts
This Agreement may be executed in one or more counterparts, each of which
shall constitute an original Agreement, but all of which together shall
constitute one and the same instrument.
NOTICE: THIS AGREEMENT RESULTS IN YOUR WAIVER OF CERTAIN LEGAL RIGHTS AND
DEFENSES, INCLUDING ANY DEFENSE BASED ON U.S. BANK'S ELECTION OF REMEDIES. IT
IS RECOMMENDED THAT YOU CONSULT YOUR OWN ATTORNEY BEFORE ENTERING INTO THIS
AGREEMENT.
EMERITUS CORPORATION
By /s/ Willam M. Shorten
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Name: William M. Shorten
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Title: Director of Real Estate Finance
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U.S. BANK NATIONAL ASSOCIATION
By /s/ Ken Refvem
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Name: Ken Refvem
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Title: Vice President
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