THE PARTIES HERETO AGREE THAT THE VALIDITY,
INTERPRETATION, ENFORCEMENT AND EFFECT OF THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF SOUTH CAROLINA AND
THE PARTIES HERETO SUBMIT (AND WAIVE ALL RIGHTS TO OBJECT) TO NON-EXCLUSIVE
PERSONAL JURISDICTION IN THE STATE OF SOUTH CAROLINA FOR THE ENFORCEMENT OF ANY
AND ALL OBLIGATIONS UNDER THE LOAN DOCUMENTS EXCEPT THAT IF ANY SUCH ACTION OR
PROCEEDING ARISES UNDER THE CONSTITUTION, LAWS OR TREATIES OF THE UNITED STATES
OF AMERICA, OR IF THERE IS A DIVERSITY OF CITIZENSHIP BETWEEN THE PARTIES
THERETO, SO THAT IT IS TO BE BROUGHT IN A UNITED STATES DISTRICT COURT, IT SHALL
BE BROUGHT IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH
CAROLINA IN WHICH ANY FACILITY IS LOCATED OR ANY SUCCESSOR FEDERAL COURT HAVING
ORIGINAL JURISDICTION.
8.13
WAIVER OF JURY TRIAL. BORROWER AND LENDER HEREBY WAIVE ANY RIGHT THAT
EITHER OR BOTH MAY HAVE TO A TRIAL BY JURY ON ANY CLAIM, COUNTERCLAIM, SETOFF,
DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING OUT OF OR IN ANY WAY RELATED TO
THIS AGREEMENT OR THE LOAN, OR (B) IN ANY WAY CONNECTED WITH OR PERTAINING OR
RELATED TO OR INCIDENTAL TO ANY DEALINGS OF LENDER AND/OR BORROWER WITH RESPECT
TO THE LOAN DOCUMENTS OR IN CONNECTION WITH THIS AGREEMENT OR THE EXERCISE OF
EITHER PARTY'S RIGHTS AND REMEDIES UNDER THIS AGREEMENT OR OTHERWISE OR THE
CONDUCT OR THE RELATIONSHIP OF THE PARTIES HERETO, IN ALL OF THE FOREGOING CASES
WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER SOUNDING IN CONTRACT, TORT
OR OTHERWISE. BORROWER AGREES THAT LENDER MAY FILE A COPY OF THIS AGREEMENT WITH
ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY, AND BARGAINED AGREEMENT
OF BORROWER IRREVOCABLY TO WAIVE ITS RIGHTS TO TRIAL BY JURY AS AN INDUCEMENT TO
LENDER TO MAKE THE LOAN, AND THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
ANY DISPUTE OR CONTROVERSY WHATSOEVER (WHETHER OR NOT MODIFIED HEREIN) BETWEEN
BORROWER AND LENDER SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION
BY A JUDGE SITTING WITHOUT A JURY.
42
BORROWER:
EMERI-SKY SC LLC,
a Delaware limited liability company
By:
EMERITUS CORPORATION,
a Washington corporation
Its Manager
By: /s/ Eric Mendelsohn
Eric Mendelsohn
Its: Director of Real Estate and Legal Affairs
EMERIVILLE SC LLC,
a Delaware limited liability company
By:
EMERITUS CORPORATION,
a Washington corporation
Its Manager
By: /s/ Eric Mendelsohn
Eric Mendelsohn
Its: Director of Real Estate and Legal Affairs
EMERIPARK SC LLC,
a Delaware limited liability company
By:
EMERITUS CORPORATION,
a Washington corporation
Its Manager
By: /s/ Eric Mendelsohn
Eric Mendelsohn
Its: Director of Real Estate and Legal Affairs
43
LENDER:
WITNESS: CAPMARK BANK, a Utah industrial bank
/s/ Lori K. Goobby
By: s/ Malana C. Bryant
(SEAL)
Lori K. Goobby
Name: Malana C. Bryant
[Print Name]
Title: Authorized Signer
44
EXHIBIT "A"
LEGAL DESCRIPTION
45
EXHIBIT "B"
BORROWER'S PRINCIPAL PLACES OF BUSINESS
AND CHIEF EXECUTIVE OFFICE
3131 Elliott Avenue, Suite 500
Seattle,