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EXHIBIT 10.9
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GUARANTY OF PAYMENT AGREEMENT
THIS GUARANTY OF PAYMENT AGREEMENT (this "Agreement") is made this 30th
day of April, 2001, by SUNRISE ASSISTED LIVING, INC., a Delaware corporation
(the "Guarantor") for the benefit of BANK OF AMERICA, N.A., a national banking
association (the "Lender").
RECITALS
A. Sunrise Baton Rouge Assisted Living, L.L.C., a Louisiana limited
liability company, Sunrise Bloomingdale Assisted Living, L.L.C., an Illinois
limited liability company, Sunrise Farmington Hills Assisted Living, L.L.C., a
Michigan limited liability company, Sunrise New Orleans Assisted Living, L.L.C.,
a Louisiana limited liability company, Sunrise Oakland Assisted Living Limited
Partnership, a California limited partnership, Sunrise Riverside Assisted
Living, L.P., a California limited partnership and Sunrise Wilton Assisted
Living, L.L.C., a Connecticut limited liability company (the "Borrowers") have
applied to the Lender for a revolving credit facility in the maximum principal
amount of $36,000,000 (the "Loan") to be used by the Borrowers to repay a
portion of an existing $400,000,000 revolving credit facility and for general
corporate purposes. The Loan is to be advanced pursuant to the terms of a
Financing and Security Agreement of even date herewith by and between the
Borrowers and the Lender (as amended, modified, restated, substituted, extended
and renewed at any time and from time to time, the "Financing Agreement").
B. All defined terms used in this Agreement and not defined herein
shall have the meaning given to such terms in the Financing Agreement.
C. The Guarantor has requested that the Lender enter into the Financing
Agreement with the Borrowers and make the credit facilities described in the
Financing Agreement available to the Borrowers.
D. The Lender has required, as a condition to entering into the
Financing Agreement, that the Guarantor execute this Agreement to secure the
payment and performance of all obligations of the Borrowers arising out of, or
in connection with, the Loan.
NOW, THEREFORE, in order to induce the Lender to make the Loan to the
Borrowers, the Guarantor covenants and agrees with the Lender as follows:
ARTICLE I
THE GUARANTY
Section 1.1 Guaranty.
The Guarantor hereby unconditionally and irrevocably guarantees to the
Lender:
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(a) the due and punctual payment in full (and not merely the
collectibility) of the principal of the Note and the interest thereon, in each
case when due and payable, whether on any installment payment date or at the
stated or accelerated maturity, all according to the terms of the Note and the
other Financing Documents;
(b) the due and punctual payment in full (and not merely the
collectibility) of all Obligations and other sums and charges which may at any
time be due and payable in accordance with, or secured by, the Note or any of
the other Financing Documents;
(c) the due and punctual performance of all of the other
terms, covenants and conditions contained in the Financing Documents; and
(d) all indebtedness, obligations and liabilities of any kind
and nature of the Borrowers to the Lender, whether now existing or hereafter
created or arising, direct or indirect, matured or unmatured, and whether
absolute or contingent, joint, several or joint and several, and howsoever
owned, held or acquired.
Section 1.2 Guaranty Unconditional.
The obligations and liabilities of the Guarantor under this Agreement
shall be absolute and unconditional, irrespective of the genuineness, validity,
priority, regularity or enforceability of the Note or any of the Financing
Documents or any other circumstance which might otherwise constitute a legal or
equitable discharge of a surety or guarantor. The Guarantor expressly accepts
the terms and conditions of the Note and the other Financing Documents. The
Guarantor expressly agrees that the Lender may, in its sole and absolute
discretion, without notice to or further assent of the Guarantor and without in
any way releasing, affecting or in any way impairing the obligations and
liabilities of the Guarantor hereunder:
(a) waive compliance with, or any defaults under, or grant any
other indulgences under or with respect to any of the Financing
Documents;
(b) modify, amend, change or terminate any provisions of any
of the Financing Documents;
(c) grant extensions or renewals of or with respect to the
Note or any of the other Financing Documents;
(d) effect any release, subordination, compromise or
settlement in connection with the Note or any of the other Financing
Documents;
(e) agree to the substitution, exchange, release or other
disposition of the Collateral or any part thereof, or any other
collateral for the Loan or to the subordination of any lien or security
interest therein;
(f) make advances for the purpose of performing any term,
provision or covenant contained in the Note or any of the other
Financing Documents with respect to which the Borrowers shall then be
in default;
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(g) make future advances to the Borrowers pursuant to the
Financing Agreement or any of the other Financing Documents;
(h) assign, pledge, hypothecate or otherwise transfer the
Note, any of the other Financing Documents or this Agreement or any
interest therein;
(i) deal in all respects with the Borrowers as if this
Agreement were not in effect; and
(j) effect any release, compromise or settlement with any
other guarantor.
Section 1.3 Guaranty Primary.
The obligations and liabilities of the Guarantor under this Agreement
shall be primary, direct and immediate, shall not be subject to any
counterclaim, recoupment, set off, reduction or defense based upon any claim
that the Guarantor may have against the Borrowers, the Lender and/or any other
guarantor and shall not be conditional or contingent upon pursuit or enforcement
by the Lender of any remedies it may have against the Borrowers with respect to
the Note or any of the other Financing Documents, whether pursuant to the terms
thereof or by operation of law. Without limiting the generality of the
foregoing, the Lender shall not be required to make any demand upon the
Borrowers, or to sell the Collateral or otherwise pursue, enforce or exhaust
their remedies against the Borrowers or the Collateral either before,
concurrently with or after pursuing or enforcing their rights and remedies
hereunder. Any one or more successive or concurrent actions or proceedings may
be brought against the Guarantor under this Agreement, either in the same
action, if any, brought against the Borrowers or in separate actions or
proceedings, as often as the Lender may deem expedient or advisable. Without
limiting the foregoing, it is specifically understood that any modification,
limitation or discharge of any of the liabilities or obligations of the
Borrowers or any other obligor under any of the Financing Documents, arising out
of, or by virtue of, any bankruptcy, arrangement, reorganization or similar
proceeding for relief of debtors under federal or state law initiated by or
against the Borrowers or the Guarantor or any obligor under any of the Financing
Documents shall not modify, limit, lessen, reduce, impair, discharge, or
otherwise affect the liability of the Guarantor hereunder in any manner
whatsoever, and this Agreement shall remain and continue in full force and
effect. It is the intent and purpose of this Agreement that the Guarantor shall
and does hereby waive all rights and benefits which might accrue to any other
guarantor by reason of any such proceeding, and the Guarantor agrees that it
shall be liable for the full amount of the obligations and liabilities under
this Agreement, regardless of, and irrespective to, any modification, limitation
or discharge of the liability of the Borrowers, any other guarantor or any
obligor under any of the Financing Documents, that may result from any such
proceedings.
Section 1.4 Certain Waivers by the Guarantor.
The Guarantor hereby unconditionally, irrevocably and expressly waives:
(a) presentment and demand for payment of the principal of or
interest on the Note and protest of non-payment;
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(b) notice of acceptance of this Agreement and of presentment,
demand and protest thereof;
(c) notice of any default hereunder or under the Note or any
of the other Financing Documents and notice of all indulgences;
(d) notice of any increase in the amount of any portion of or
all of the indebtedness guaranteed by this Agreement;
(e) demand for observance, performance or enforcement of any
of the terms or provisions of this Agreement, the Note or any of the
other Financing Documents;
(f) all errors and omissions in connection with the Lender's
administration of all indebtedness guaranteed by this Agreement, except
errors and omissions resulting from acts of bad faith;
(g) any right or claim of right to cause a marshalling of the
assets of the Borrowers;
(h) any act or omission of the Lender (except acts or
omissions in bad faith) which changes the scope of the Guarantor's risk
hereunder; and
(i) all other notices and demands otherwise required by law
which the Guarantor may lawfully waive.
Section 1.5 Reimbursement for Expenses.
In the event the Lender shall commence any action or proceeding for the
enforcement of this Agreement, then the Guarantor will reimburse the Lender,
promptly upon demand, for any and all reasonable expenses incurred by the Lender
in connection with such action or proceeding including, without limitation,
reasonable attorneys' fees together with interest thereon at the Post-Default
Rate.
Section 1.6 Events of Default.
The occurrence of any one or more of the following events shall
constitute an "Event of Default" under the provisions of this Agreement
(individually, an "Event of Default" and collectively, the "Events of Default"):
(a) The failure of the Guarantor to pay and/or perform any of
the Obligations as and when due and payable in accordance with the provisions of
this Agreement and such failure continues for five (5) calendar days after
written notice thereof to the Guarantor by the Lender, except with regard to
payment of amounts due at maturity, whether by acceleration or otherwise, for
which no notice or cure period shall be required to be given.
(b) Any representation or warranty made in this Agreement or
in any report, statement, schedule, certificate, opinion (including any opinion
of counsel for the Guarantor), financial statement or other document furnished
in connection with this Agreement, shall prove
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to have been false or misleading when made (or, if applicable, when reaffirmed)
in any material respect.
(c) The failure of the Guarantor to comply with Section 3.3
(Financial Records) which default shall remain unremedied for ten (10) days
after written notice thereof to the Guarantor by the Lender.
(d) The failure of the Guarantor to perform, observe or comply
with any covenant, condition or agreement contained in this Agreement other than
as set forth in this Section, which default shall remain unremedied for thirty
(30) days after written notice thereof to the Guarantor by the Lender, unless
the nature of the failure is such that (a) it cannot be cured within the thirty
(30) day period, and (b) the Guarantor institutes corrective action within the
thirty (30) day period and (c) the Guarantor diligently pursues such action and
completes the cure within ninety (90) days.
(e) A default shall occur under any of the other Financing
Documents and such default is not cured within any applicable grace period
provided therein.
(f) The Guarantor shall (i) apply for or consent to the
appointment of a receiver, trustee or liquidator of itself or any of its
property, (ii) admit in writing its inability to pay its debts as they mature,
(iii) make a general assignment for the benefit of creditors, (iv) be
adjudicated a bankrupt or insolvent, (v) file a voluntary petition in bankruptcy
or a petition or an answer seeking or consenting to reorganization or an
arrangement with creditors or to take advantage of any bankruptcy,
reorganization, insolvency, readjustment of debt, dissolution or liquidation law
or statute, or an answer admitting the material allegations of a petition filed
against it in any proceeding under any such law, or take corporate action for
the purposes of effecting any of the foregoing, or (vi) by any act indicate its
consent to, approval of or acquiescence in any such proceeding or the
appointment of any receiver of or trustee for any of its property, or suffer any
such receivership, trusteeship or proceeding to continue undischarged for a
period of sixty (60) days, or (vii) by any act indicate its consent to, approval
of or acquiescence in any order, judgment or decree by any court of competent
jurisdiction or any Governmental Authority enjoining or otherwise prohibiting
the operation of a material portion of the Guarantor's business or the use or
disposition of a material portion of the Guarantor's assets.
(g) (i) An order for relief shall be entered in any
involuntary case brought against the Guarantor under the Bankruptcy Code, or
(ii) any such case shall be commenced against the Guarantor and shall not be
dismissed within sixty (60) days after the filing of the petition, or (iii) an
order, judgment or decree under any other Law is entered by any court of
competent jurisdiction or by any other Governmental Authority on the application
of a Governmental Authority or of a Person other than the Guarantor (A)
adjudicating the Guarantor bankrupt or insolvent, or (B) appointing a receiver,
trustee or liquidator of the Guarantor, or of a material portion of the
Guarantor's assets, or (C) enjoining, prohibiting or otherwise limiting the
operation of a material portion of the Guarantor's businesses or the use or
disposition of a material portion of the Guarantor's assets, and such order,
judgment or decree continues unstayed and in effect for a period of thirty (30)
days from the date entered.
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(h) Unless adequately insured in the reasonable opinion of the
Lender, the entry of a final judgment for the payment of money involving more
than $1,000,000 against the Guarantor, and the failure by the Guarantor to
discharge the same, or cause it to be discharged, within thirty (30) days from
the date of the order, decree or process under which or pursuant to which such
judgment was entered, or to secure a stay of execution pending appeal of such
judgment.
(i) Default which continues beyond any applicable grace period
shall be made under any obligation of or guaranteed by the Guarantor equal to or
greater than $1,000,000, if the effect of such default is to accelerate the
maturity of such obligation or to permit the holder or obligee thereof to cause
such obligation to become due prior to its stated maturity.
(j) Default shall be made under any obligation equal to or
greater than $1,000,000 of a consolidated Affiliate, which is otherwise
non-recourse to the Guarantor, if the holder or obligee of such obligation has
commenced action on any of the remedies available to it under the obligation.
(k) If the Lender, in its reasonable discretion, determines in
good faith that a Material Adverse Change has occurred in the financial
condition of the Guarantor.
(l) If the Guarantor shall liquidate, dissolve or terminate
its existence or any change occurs in the management or control of the Guarantor
without the prior written consent of the Lender.
(m) If the Guarantor transfers any of its assets in violation
of Section 3.6 (Negative Covenants).
(n) Any execution or attachment shall be levied against any
collateral for this Agreement, or any part thereof, and such execution or
attachment shall not be set aside, discharged or stayed within thirty (30) days
after the same shall have been levied.
(o) A Default or Event of Default (each as defined in the
documents evidencing and securing the Master Credit Facility) shall exist.
Section 1.7 Rescission of Election to Accelerate.
In the event the Lender shall elect to accelerate the maturity of the
Note as to the Guarantor pursuant to the provisions of this Agreement, such
election may be rescinded by written acknowledgment to that effect by the
Lender; provided, however, that the acceptance of a partial payment on account
of the Note shall not alone effect or rescind such election.
Section 1.8 Subordination; Subrogation.
In the event the Guarantor shall advance any sums to the Borrowers, or
in the event the Borrowers have heretofore or shall hereafter become indebted to
the Guarantor before the Obligations have been paid in full, all such advances
and indebtedness shall be subordinate in all respects to the Obligations (the
"Guarantor Subordinated Debt"). Any payment to the Guarantor after the
occurrence of an Event of Default on account of the Guarantor Subordinated Debt
shall be collected and received by the Lender or the Guarantor in trust for the
Lender and shall be paid
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over to the Lender on account of the Obligations without impairing or releasing
the obligations of the Guarantor hereunder.
Without the prior written consent of the Lender, the Guarantor shall
not ask, demand, receive, accept, xxx for, set off, collect or enforce the
Guarantor Subordinated Debt or any collateral and security therefor. The
Guarantor represents and warrants to the Lender that the Guarantor Subordinated
Debt is unsecured and agrees not to receive or accept any collateral or security
therefor without the prior written permission of the Lender. The Guarantor shall
assign, transfer, hypothecate or dispose of the Guarantor Subordinated Debt
while this Agreement is in effect. In the event of any sale, receivership,
insolvency or bankruptcy proceeding, or assignment for the benefit of creditors,
or any proceeding by or against the Borrowers for any relief under any
bankruptcy or insolvency law or other laws relating to the relief of debtors,
readjustment of indebtedness, reorganizations, compositions or extensions, then
and in any such event any payment or distribution of any kind or character,
either in cash, securities or other property, which shall be payable or
deliverable upon, or with respect to, all or any part of the Guarantor
Subordinated Debt or otherwise shall be paid or delivered directly to the Lender
for application to the obligations and liabilities of the Guarantor under this
Agreement (whether due or not due and in such order and manner as the Lender may
determine in the exercise of its sole discretion) until the obligations of the
Guarantor hereunder shall have been fully paid and satisfied. The Guarantor
hereby irrevocably authorizes and empowers the Lender to demand, xxx for,
collect and receive every such payment or distribution on account of the
Guarantor Subordinated Debt and give acquittance therefor and to file claims and
take such other proceedings in the name of the Lender or in the names of the
Guarantor or otherwise, as the Lender may deem necessary or advisable to carry
out the provisions of this Agreement. The Guarantor hereby agrees to execute and
deliver to the Lender such powers of attorney, assignments, endorsements or
other instruments as may be requested by the Lender in order to enable the
Lender to enforce any and all claims upon, or with respect to, the Guarantor
Subordinated Debt, and to collect and receive any and all payments or
distributions which may be payable or deliverable at any time upon or with
respect thereto.
So as to secure the performance by the Guarantor of the provisions of
this Agreement, the Guarantor assigns, pledges and grants to the Lender a
security interest in, and lien on, the Guarantor Subordinated Debt, all proceeds
thereof and all and any security and collateral therefor. Upon the request of
the Lender, the Guarantor shall endorse, assign and deliver to the Lender all
notes, instruments and agreements evidencing, securing, guarantying or made in
connection with the Guarantor Subordinated Debt.
Notwithstanding any provision contained in this Agreement to the
contrary, if the Guarantor is or at any time becomes an "insider" (as defined
from time to time in Section 101 of the United States Bankruptcy Code) with
respect to the Borrowers, or any other guarantor, then the Guarantor irrevocably
and absolutely waives any and all rights of contribution, indemnification,
reimbursement, subrogation or any similar rights against the Borrowers and/or
any such guarantor, with respect to this Guaranty (including any right of
subrogation) whether such rights arise under an express or implied contract or
by operation of law. It is the intention of the Guarantor that it shall not be
deemed to be a "creditor" (as defined in Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx
Bankruptcy Code) of the Borrowers, or any such guarantor, by reason of the
existence of this Agreement in the event that the Borrowers or any such
guarantor, becomes a
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debtor in any proceeding under the United States Bankruptcy Code. This waiver is
given to induce the Lender to make the Loan to the Borrowers.
Section 1.9 Mandatory Arbitration.
(a) This paragraph concerns the resolution of any
controversies or claims between the Guarantor and the Lender, whether arising in
contract, tort or by statute, including but not limited to controversies or
claims that arise out of or relate to: (i) this Agreement (including any
renewals, extensions or modifications); or (ii) any document related to this
Agreement; (collectively a "Claim").
(b) At the request of the Guarantor or the Lender, any Claim
shall be resolved by binding arbitration in accordance with the Federal
Arbitration Act (Title 9, U. S. Code) (the "Act"). The Act will apply even
though this Agreement provides that it is governed by the law of a specified
state.
(c) Arbitration proceedings will be determined in accordance
with the Act, the rules and procedures for the arbitration of financial services
disputes of J.A.M.S./Endispute or any successor thereof ("J.A.M.S."), and the
terms of this paragraph. In the event of any inconsistency, the terms of this
paragraph shall control.
(d) The arbitration shall be administered by J.A.M.S. and
conducted in any U. S. state where real or tangible personal property collateral
for this credit is located or if there is no such collateral, in the
Commonwealth of Virginia. All Claims shall be determined by one arbitrator;
however, if Claims exceed $5,000,000, upon the request of any party, the Claims
shall be decided by three arbitrators. All arbitration hearings shall commence
within 90 days of the demand for arbitration and close within 90 days of
commencement and the award of the arbitrator(s) shall be issued within 30 days
of the close of the hearing. However, the arbitrator(s), upon a showing of good
cause, may extend the commencement of the hearing for up to an additional 60
days. The arbitrator(s) shall provide a concise written statement of reasons for
the award. The arbitration award may be submitted to any court having
jurisdiction to be confirmed and enforced.
(e) The arbitrator(s) will have the authority to decide
whether any Claim is barred by the statute of limitations and, if so, to dismiss
the arbitration on that basis. For purposes of the application of the statute of
limitations, the service on J.A.M.S. under applicable J.A.M.S. rules of a notice
of Claim is the equivalent of the filing of a lawsuit. Any dispute concerning
this arbitration provision or whether a Claim is arbitrable shall be determined
by the arbitrator(s). The arbitrator(s) shall have the power to award legal fees
pursuant to the terms of this Agreement.
(f) This paragraph does not limit the right of the Guarantor
or the Lender to: (i) exercise self-help remedies, such as but not limited to,
setoff; (ii) initiate judicial or non-judicial foreclosure against any real or
personal property collateral; (iii) exercise any judicial or power of sale
rights, or (iv) act in a court of law to obtain an interim remedy, such as but
not limited to, injunctive relief, writ of possession or appointment of a
receiver, or additional or supplementary remedies.
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(g) By agreeing to binding arbitration, the parties
irrevocably and voluntarily waive any right they may have to a trial by jury in
respect of any Claim. Furthermore, without intending in any way to limit this
Agreement to arbitrate, to the extent any Claim is not arbitrated, the parties
irrevocably and voluntarily waive any right they may have to a trial by jury in
respect of such Claim. This provision is a material inducement for the parties
entering into this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties.
The Guarantor represents and warrants to the Lender as follows:
2.1.1 Good Standing.
The Guarantor (i) is duly organized, existing and in good
standing under the laws of the jurisdiction of its organization, (ii) has the
power to own its property and to carry on its business as now being conducted,
and (iii) is duly qualified to do business and is in good standing in each
jurisdiction in which the character of the properties owned by it therein or in
which the transaction of its business makes such qualification necessary.
2.1.2 Power and Authority.
The Guarantor has full power and authority to execute and
deliver this Agreement and the other Financing Documents to which it is a party
and to incur and perform the Obligations whether under this Agreement, the other
Financing Documents or otherwise, all of which have been duly authorized by all
proper and necessary action. No consent or approval of shareholders, members, or
any creditors of the Guarantor, and no consent, approval, filing or registration
with or notice to any Governmental Authority on the part of the Guarantor, is
required as a condition to the execution, delivery, validity or enforceability
of this Agreement or the other Financing Documents or the performance by the
Guarantor of the Obligations.
2.1.3 Binding Agreements.
This Agreement and the other Financing Documents executed and
delivered by the Guarantor have been properly executed and delivered and
constitute the valid and legally binding obligations of the Guarantor and are
fully enforceable against the Guarantor in accordance with their respective
terms, subject to (a) bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally, (b) general principles of
equity (regardless of whether such principles of equity are asserted in an
action or proceeding at law or in equity) or the discretion of the court before
which any action or proceeding may be brought and (c) other applicable laws
which may limit the enforceability of certain of the remedial or procedural
provisions contained in this Agreement.
2.1.4 Compliance with Laws.
The Guarantor is not in violation of any applicable Laws
(including, without limitation, any Laws relating to employment practices, to
environmental, occupational and health standards and controls) or order, writ,
injunction, decree or demand of any court,
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arbitrator, or any Governmental Authority affecting the Guarantor or any of its
properties, the violation of which, considered in the aggregate, could
materially adversely affect the business, operations or properties of the
Guarantor.
2.1.5 Litigation.
There are no proceedings, actions or investigations pending
or, so far as the Guarantor knows, threatened before or by any court, arbitrator
or any Governmental Authority which, in any one case or in the aggregate, if
determined adversely to the interests of the Guarantor, would have a material
adverse effect on the business, properties, condition (financial or otherwise)
or operations, present or prospective, of the Guarantor.
2.1.6 Financial Condition.
The financial statements of the Guarantor dated December 31,
2000 are complete and correct and fairly present the financial position of the
Guarantor and the results of its operations and transactions in its surplus
accounts as of the date and for the period referred to and have been prepared in
accordance with GAAP applied on a consistent basis throughout the period
involved. There are no liabilities, direct or indirect, fixed or contingent, of
the Guarantor as of the date of such financial statements that are not reflected
therein or in the notes thereto. There has been no Material Adverse Change in
the financial condition or operations of the Guarantor since the date of such
financial statements and to the Guarantor's knowledge no such Material Adverse
Change is pending or threatened. The Guarantor has not guaranteed the
obligations of, or made any investment in or advances to, any Person, except as
disclosed in such financial statements or as otherwise disclosed in writing to
the Lender. The representations and warranties contained in this Section shall
also cover financial statements furnished from time to time to the Lender
pursuant to Section 3.3 (Financial Records).
2.1.7 Full Disclosure.
The financial statements referred to in Section 2.1.6
(Financial Condition), the Financing Documents (including, without limitation,
this Agreement), and the statements, reports or certificates furnished by the
Guarantor in connection with the Financing Documents (a) do not contain any
untrue statement of a material fact and (b) when taken in their entirety, do not
omit any material fact necessary to make the statements contained therein not
misleading. There is no fact known to the Guarantor which the Guarantor has not
disclosed to the Lender in writing prior to the date of this Agreement which
constitutes a Material Adverse Change with respect to the Guarantor or in the
future could, in the reasonable opinion of the Guarantor, constitute a Material
Adverse Change with respect to the Guarantor.
2.1.8 Financial Interest.
The Guarantor has a financial interest in the Borrowers and
will derive a benefit from the Loan.
Section 2.2 Survival; Updates of Representations and Warranties.
All representations and warranties contained in or made under or in
connection with this Agreement and the other Financing Documents shall survive
the Closing Date, the making of any advance under the Loan and the incurring of
any Obligations.
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ARTICLE III
COVENANTS
The Guarantor hereby covenants and agrees as follows:
Section 3.1 Existence.
The Guarantor shall maintain its existence in good standing in the
jurisdiction in which it is organized and in each other jurisdiction where it is
required to register or qualify to do business if the failure to do so in such
other jurisdiction might have a material adverse effect on the ability of the
Guarantor to perform the Obligations, on the conduct of the Guarantor's
operations, on the Guarantor's financial condition, or on the value of, or the
ability of the Lender to realize upon, the Collateral.
Section 3.2 Further Assurances.
The Guarantor will make, execute, acknowledge and deliver all and every
such further acts and assurances as the Lender shall from time to time require
for confirming or carrying out the intentions or facilitating the performance of
the terms of this Agreement.
Section 3.3 Financial Records - Inspection.
The Guarantor will:
(a) maintain or cause to be maintained full, complete,
accurate and adequate records and books of account in accordance with generally
accepted accounting principles consistently applied;
(b) permit the Lender and their duly authorized agents,
attorneys and accountants to inspect, examine, and copy its records and books of
account at all reasonable times;
(c) as soon as available, but in no event more than
(i) one hundred twenty (120) days after the close of the
Guarantor's fiscal years, provide the Lender with copies of (A) the
Guarantor's consolidated financial statements for the year in question,
in form and detail satisfactory to the Lender, prepared in accordance
with generally accepted accounting principles, consistently applied,
and audited by an independent certified public accountant satisfactory
to the Lender, which financial statements shall include a balance sheet
as of the end of such fiscal year, (B) the related statements of
operations and retained earnings and cash statements for such fiscal
year in a format acceptable to the Lender and updated annual
projections, and (C) an unqualified letter or opinion of the
independent accountant;
(ii) forty-five (45) days after the end of the Guarantor's
fiscal quarters, provide the Lender with copies of internally prepared
consolidated and consolidating financial statements of the Guarantor on
a year-to-date basis and as of the close of such period which financial
statements shall include a balance
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sheet and income and expense statements for the Guarantor for such
period, each certified as to accuracy by the chief financial officer of
Guarantor; and
(iii) thirty (30) days after the date of filing, provide the
Lender with copies of the federal and state income tax returns for
Guarantor for the year in question as well as any requests for
extensions, schedules and exhibits filed in connection therewith;
(d) the Guarantor shall provide to the Lender copies of each
10K or 10Q report as soon as possible, but in no event more than thirty (30)
days after filing such report with the Securities and Exchange Commission;
(e) promptly deliver to the Lender such other information with
respect to the financial statements of the Guarantor as the Lender may from time
to time require; and
(f) insure that all required financial statements shall be
accompanied by a certificate of compliance with the financial covenants set
forth in this Agreement (and shall include the Guarantor's computation of such
covenants) signed by the Guarantor's Chief Financial Officer and a
representation whether or not there has occurred a Default or Event of Default
under the Financing Documents and, if so, stating the facts with respect
thereto. All financial statements will include the following certification:
"The undersigned as ____________ of ____________ certifies
that the financial information contained in the financial statement
dated __________, is true and complete as of this date. This statement
is provided to Bank of America, N.A. (the "Bank") as the Lender set
forth in the Loan Agreement dated April __, 2001, as amended, restated
or substituted from time to time for the purpose of obtaining credit or
in fulfillment of the terms and conditions of credit already provided.
Accordingly, it is intended that the Bank may rely on this
information".
Section 3.4 Estoppel Certificates.
Within ten (10) days following any request of the Lender so to do, the
Guarantor will furnish the Lender and such other persons as the Lender may
direct with a written certificate, duly acknowledged stating in detail whether
or not any credits, offsets or defenses exist with respect to this Agreement.
Section 3.5 Affirmative Covenants.
Guarantor hereby covenants and agrees that, until the Loan and all of
the other Obligations have been paid and performed in full, it will promptly
notify the Lender upon obtaining knowledge of the occurrence of any of the
following:
(a) any Event of Default under the Financing Documents;
(b) any event, development or circumstance whereby the
financial statements furnished under the Financing Documents fail in
any material respect to present fairly, in accordance with GAAP, the
financial condition and operational results of the Guarantor;
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(c) any judicial, administrative or arbitral proceeding
pending against the Guarantor in any judicial or administrative
proceeding known by the Guarantor to have been threatened in a written
communication against it which, if adversely decided, could materially
adversely affect its financial condition or operations (present or
prospective);
(d) (i) the revocation, suspension, probation, restriction,
limitation or refusal to renew, or the pending, revocation, suspension,
probation, restriction, limitation, or refusal to renew, of any License
(as defined in the Financing Agreement) held by the Borrowers, the
Guarantor or the Management Company (as defined in the Financing
Agreement), or (ii) the decertification, revocation, suspension,
probation, restriction, limitation, or refusal to renew, or the
pending, decertification, revocation, suspension, probation,
restriction, limitation, or refusal to renew any participation or
eligibility in any third party payor program in which the Borrowers,
the Guarantor or Management Company elects to participate which exceeds
10% of the gross revenue of a Facility, including, without limitation,
Medicare, Medicaid, or private insurer, or any accreditation of the
Guarantor or Management Company, or (iii) the issuance or pending
issuance of any License for a period of less than twelve (12) months,
as a consequence of sanctions imposed by any governmental authority, or
(iv) the assessment or pending assessment, of any civil or criminal
penalties by any government authority, any third party payor or any
accreditation organization or Person, if any, which could materially
adversely affect the financial condition or operations of the Guarantor
or the Management Company;
(e) any other development in the business or affairs of the
Guarantor or the Management Company which may be a Material Adverse
Change; and
(f) any actual contingent liability or a potential contingent
liability threatened or noticed in a written communication of the
Borrowers of $1,000,000 or more,
in each case described in (a) through (f) above, such notification shall
describe in detail satisfactory to the Lender the nature thereof and, in the
case of notification under clause (d), the action the Guarantor or the
Management Company proposes to take with respect thereto or a statement that the
Guarantor or the Management Company intends to take no action and an explanation
of the reasons for such inaction. In addition, the Guarantor or the Management
Company will furnish to the Lender immediately after receipt thereof copies of
all administrative notices material to the Guarantor's or the Management
Company's business and operation of any Facility and all responses by or on
behalf of the Guarantor or the Management Company with respect to such
administrative notices.
Section 3.6 Negative Covenants.
Until the Credit Facility is terminated and the Loan and the other
Obligations have been paid or performed in full, the Guarantor will not, without
the prior written consent of the Lender:
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(a) Mergers or Acquisitions. Enter into any merger or
consolidation or amalgamation, wind up or dissolve itself (or suffer any
liquidation or dissolution), or acquire all or substantially all of the assets
of any person, firm, joint venture or corporation. The foregoing
notwithstanding, the consent of the Lender shall not be required for any merger
or consolidation or acquisition of the Guarantor pursuant to which the Guarantor
retains its corporate identity and Xxxx X. Xxxxxxxx or Xxxxxx X. Xxxxxxxx
remains the Chairman of the Board and Chief Executive Officer with
responsibility for managing the businesses of the Guarantor and which does not
result in either a Material Adverse Change or a breach of any covenant under the
Credit Facility.
(b) Subsidiaries. Except for the purpose of acquiring real
property to construct an assisted living facility or acquiring an existing
assisted living facility, create or otherwise acquire any subsidiaries if such
creation or acquisition will result in a Material Adverse Change.
(c) Additional Stock and Transfers of Stock. The Guarantor may
issue or grant options or rights to purchase its capital stock and there shall
be no limitations on the right of shareholders of the Guarantor to pledge,
assign, transfer or encumber any of their stock in the Guarantor provided, (i)
the Guarantor is an entity whose common equity is registered under an applicable
Federal Securities Act and is traded on a National Securities Exchange or NASDAQ
national market, and (ii) either Xxxx X. Xxxxxxxx or Xxxxxx X. Xxxxxxxx is the
Chief Executive Officer and Chairman of the Board with responsibility for
managing the businesses of the Guarantor; and provided, that, the Guarantor
shall provide written notice to Lender of transfers of stock in the Guarantor
under such circumstances and in such manner as the Guarantor is required to give
notice thereof to the Securities Exchange Commission.
(d) ERISA Compliance. (i) Restate or amend any Plan
established and maintained by the Guarantor or any Commonly Controlled Entity
and subject to the requirements of ERISA, in a manner designed to disqualify
such Plan and its related trusts under the applicable requirements of the Code;
(ii) permit any officer of the Guarantor or any Commonly Controlled Entity to
materially adversely affect the qualified tax-exempt status of any Plan or
related trusts of the Guarantor or any Commonly Controlled Entity under the
Code; (iii) engage in or permit any Commonly Controlled Entity to engage in any
Prohibited Transaction; (iv) incur or permit any Commonly Controlled Entity to
incur any Accumulated Funding Deficiency, whether or not waived, in connection
with any Plan; (v) take or permit any Commonly Controlled Entity to take any
action or fail to take any action which causes a termination of any Plan in a
manner which could result in the imposition of a lien on the property of the
Guarantor or any Commonly Controlled Entity pursuant to Section 4068 of ERISA;
(vi) fail to notify the Lender that notice has been received of a "termination"
(as defined in ERISA) of any Multi-employer Plan to which the Guarantor or any
Commonly Controlled Entity has an obligation to contribute; (vii) incur or
permit any Commonly Controlled Entity to incur a "complete withdrawal" or
"partial withdrawal" (as defined in ERISA) from any Multi-employer Plan to which
the Guarantor or any Commonly Controlled Entity has an obligation to contribute;
or (viii) fail to notify the Lender that notice has been received from the
administrator of any Multi-employer Plan to which the Guarantor or any Commonly
Controlled Entity has an obligation to contribute that any such Plan will be
placed in "reorganization" (as defined in ERISA).
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(e) Amendments; Terminations. Amend or terminate or agree to
amend or terminate any License, participation agreement, the Management
Agreement with any of the Borrowers or, except in the ordinary course of
business, any other operating agreements which may be entered into by Guarantor
with respect to a Facility, or consent to or waive any material provisions
thereof.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Notices.
All notices, requests and demands to or upon the parties to this
Agreement shall be in writing and shall be deemed to have been given or made
when delivered by hand on a Business Day, or three (3) days after the date when
deposited in the mail, postage prepaid by registered or certified mail, return
receipt requested, or when sent by overnight courier, on the Business Day next
following the day on which the notice is delivered to such overnight courier,
addressed as follows:
Guarantor: Sunrise Assisted Living, Inc.
0000 Xxxxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Sunrise Assisted Living, Inc.
0000 Xxxxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Sunrise Assisted Living, Inc.
0000 Xxxxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx
With a Courtesy
Copy to: Xxxxx X. Xxxxxxx, Esquire
Watt, Tieder, Hoffar & Xxxxxxxxxx
0000 Xxxxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Lender: Bank of America, N.A
0000 Xxxxxxxxx Xxxxx
0xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
By written notice, each party to this Agreement may change the address to which
notice is given to that party, provided that such changed notice shall include a
street address to which notices may be delivered by overnight courier in the
ordinary course on any Business Day.
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Section 4.2 Amendments; Waivers.
This Agreement may not be amended, modified, or changed in any respect
except by an agreement in writing signed by the Lender and the Guarantor. No
waiver of any provision of this Agreement, nor consent to any departure by the
Guarantor therefrom, shall in any event be effective unless the same shall be in
writing. No course of dealing between the Guarantor and the Lender and no act or
failure to act from time to time on the part of the Lender shall constitute a
waiver, amendment or modification of any provision of this Agreement or any
right or remedy under this Agreement or under applicable Laws.
Without implying any limitation on the foregoing:
(a) Any waiver or consent shall be effective only in the
specific instance, for the terms and purpose for which given, subject
to such conditions as the Lender may specify in any such instrument.
(b) No waiver of any Default or Event of Default shall extend
to any subsequent or other Default or Event of Default, or impair any
right consequent thereto.
(c) No notice to or demand on the Guarantor in any case shall
entitle the Guarantor to any other or further notice or demand in the
same, similar or other circumstance.
(d) No failure or delay by the Lender to insist upon the
strict performance of any term, condition, covenant or agreement of
this Agreement or of any of the other Financing Documents, or to
exercise any right, power or remedy consequent upon a breach thereof,
shall constitute a waiver, amendment or modification of any such term,
condition, covenant or agreement or of any such breach or preclude the
Lender from exercising any such right, power or remedy at any time or
times.
(e) By accepting payment after the due date of any amount
payable under this Agreement or under any of the other Financing
Documents, the 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 Financing Documents, or to declare
a default for failure to effect such prompt payment of any such other
amount.
Section 4.3 Cumulative Remedies.
The rights, powers and remedies provided in this Agreement and in the
other Financing Documents are cumulative, may be exercised concurrently or
separately, may be exercised from time to time and in such order as the Lender
shall determine and are in addition to, and not exclusive of, rights, powers and
remedies provided by existing or future applicable Laws. In order to entitle the
Lender to exercise any remedy reserved to them in this Agreement, it shall not
be necessary to give any notice, other than such notice as may be expressly
required in this Agreement. Without limiting the generality of the foregoing,
the Lender may:
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(a) proceed against the Guarantor with or without proceeding
against the Borrowers and any other guarantor or any other Person who
may be liable for all or any part of the Obligations;
(b) proceed against the Guarantor with or without proceeding
under any of the other Financing Documents or against any Collateral or
other collateral and security for all or any part of the Obligations;
(c) without reducing or impairing the obligation of the
Guarantor and without notice, release or compromise with any other
Person liable for all or any part of the Obligations under the
Financing Documents or otherwise; and
(d) without reducing or impairing the obligations of the
Guarantor and without notice thereof: (a) fail to perfect the Lien in
any or all Collateral or to release any or all the Collateral or to
accept substitute Collateral, (b) approve the making of advances under
the Loan under the Loan Agreement, (c) waive any provision of this
Agreement or the other Financing Documents, (d) exercise or fail to
exercise rights of set-off or other rights, or (e) accept partial
payments or extend from time to time the maturity of all or any part of
the Obligations.
Section 4.4 Severability.
In case one or more provisions, or part thereof, contained in this
Agreement or in the other Financing Documents shall be invalid, illegal or
unenforceable in any respect under any Law, then without need for any further
agreement, notice or action:
(a) the validity, legality and enforceability of the remaining
provisions shall remain effective and binding on the parties thereto
and shall not be affected or impaired thereby;
(b) the obligation to be fulfilled shall be reduced to the
limit of such validity;
(c) if such provision or part thereof pertains to repayment of
the Obligations, then, at the sole and absolute discretion of the
Lender, all of the Obligations shall become immediately due and
payable; and
(d) if the affected provision or part thereof does not pertain
to repayment of the Obligations, but operates or would prospectively
operate to invalidate this Agreement in whole or in part, then such
provision or part thereof only shall be void, and the remainder of this
Agreement shall remain operative and in full force and effect.
Section 4.5 Assignments by Lender.
The Lender may, without notice to, or consent of, the Guarantor, sell,
assign or transfer to or participate with any Person or Persons, including a
Federal Reserve Bank, all or any part of the Obligations and the rights under
this Agreement and the Note, and each such Person or Persons shall have the
right to enforce the provisions of this Agreement and any of the other
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Financing Documents as fully as the Lender, provided that the Lender shall
continue to have the unimpaired right to enforce the provisions of this
Agreement and any of the other Financing Documents as to so much of the
Obligations that such Lender has not sold, assigned or transferred. In
connection with the foregoing and provided the Lender has requested that the
same shall be treated as confidential material, the Lender shall have the right
to disclose to any such actual or potential purchaser, assignee, transferee or
participant all financial records, information, reports, financial statements
and documents obtained in connection with this Agreement and any of the other
Financing Documents or otherwise. In connection with any sale, assignment,
transfer or participation to a Person who is an affiliate or successor of the
Lender, Lender shall give notice to Borrowers of such transaction either before
or after the transaction has occurred as Lender shall determine; however, Lender
shall give notice to the Borrowers in advance of any such transaction with a
non-affiliate.
Section 4.6 Successors and Assigns.
This Agreement shall be binding upon the Guarantor and its respective
successors and assigns, and shall inure to the benefit of the Lender and its
successors and assigns.
Section 4.7 Continuing Agreements.
All covenants, agreements, representations and warranties made by the
Guarantor in this Agreement and in any certificate delivered pursuant hereto
shall survive the making by the Lender of the Loan and the execution and
delivery of the Note, shall be binding upon the Guarantor regardless of how long
before or after the date hereof any of the Obligations were or are incurred, and
shall continue in full force and effect so long as any of the Obligations are
outstanding and unpaid. From time to time upon the Lender's request, and as a
condition of the release of any one or more of the Security Documents, the
Guarantor and other Persons obligated with respect to the Obligations shall
provide the Lender with such acknowledgments and agreements as the Lender may
require to the effect that there exists no defenses, rights of setoff or
recoupment, claims, counterclaims, actions or causes of action of any kind or
nature whatsoever against the Lender, their respective agents and others, or to
the extent there are, the same are waived and released.
Section 4.8 Enforcement Costs.
The Guarantor agrees to pay to the Lender on demand all Enforcement
Costs, together with interest thereon from the date incurred or advanced until
paid in full at a per annum rate of interest equal at all times to the
Post-Default Rate. Enforcement Costs shall be immediately due and payable at the
time advanced or incurred, whichever is earlier. Without implying any limitation
on the foregoing, the Guarantor agrees, as part of the Enforcement Costs, to pay
upon demand any and all stamp and other Taxes and fees payable or determined to
be payable in connection with the execution and delivery of this Agreement and
to save the Lender harmless from and against any and all liabilities with
respect to or resulting from any delay in paying or omission to pay any Taxes or
fees referred to in this Section. The provisions of this Section shall survive
the execution and delivery of this Agreement, the repayment of the other
Obligations and shall survive the termination of this Agreement.
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Section 4.9 Applicable Law.
As a material inducement to the Lender to enter into this Agreement,
the Guarantor acknowledges and agrees that the Financing Documents, including,
this Agreement, shall be governed by the Laws of the Commonwealth of Virginia as
if each of the Financing Documents and this Agreement had each been executed,
delivered, administered and performed solely within the Commonwealth of Virginia
even though for the convenience and at the request of the Borrowers, one or more
of the Financing Documents may be executed elsewhere. The Lender acknowledges,
however, that remedies under certain of the Financing Documents which relate to
property outside the Commonwealth of Virginia may be subject to the laws of the
state in which the property is located.
Section 4.10 Duplicate Originals and Counterparts.
This Agreement may be executed in any number of duplicate originals or
counterparts, each of such duplicate originals or counterparts shall be deemed
to be an original and all taken together shall constitute but one and the same
instrument.
Section 4.11 Headings.
The headings in this Agreement are included herein for convenience
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 4.12 No Partnership - Third Parties.
Nothing contained in this Agreement shall be construed in a manner to
create any relationship between the Guarantor and the Lender other than the
relationship of guarantor and Lender and the Guarantor and the Lender shall not
be considered a partner or co-venturer for any purpose. The terms and provisions
of this Agreement are for the benefit of the Lender and its successors, assigns,
endorsees and transferees and all persons claiming under or through it and no
other person shall have any right or cause of action on account thereof. The
Lender has no obligation to make any advance of the Loan for the benefit of the
Guarantor; the Guarantor has no beneficial interest in the proceeds of the Loan
or rights or claims under the Financing Agreement or any of the other Financing
Documents. The obligations and liabilities of the Guarantor shall in no manner
be affected by the actual use of the proceeds of the Loan or whether the Lender
waives any or all of the conditions to advances set forth in the Financing
Agreement.
Section 4.13 Entire Agreement.
The Financing Documents shall completely and fully supersede all prior
agreements, both written and oral, between the Lender and the Borrowers relating
to the Loan. Neither the Lender, the Borrowers nor the Guarantor shall hereafter
have any rights under such prior agreements but shall look solely to the
Financing Documents for definition and determination of all of their respective
rights, liabilities and responsibilities relating to the Obligations.
Section 4.14 Consent to Jurisdiction.
The Guarantor irrevocably submits to the jurisdiction of any state or
federal court sitting in the Commonwealth of Virginia over any suit, action, or
proceeding arising out of or relating to
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this Agreement. The Guarantor irrevocably waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to laying the
venue of any such suit, action, or proceeding brought in any such court and any
claim that any such suit, action, or proceeding brought in any such court has
been brought in an inconvenient forum. Final judgment in any such suit, action,
or proceeding brought in any such court shall be conclusive and binding upon the
Guarantor and may be enforced in any court to the jurisdiction of which the
Guarantor is subject, by a suit upon such judgment provided that service of
process is effected upon the Guarantor in a manner specified in this Agreement
or as otherwise permitted by applicable law.
Section 4.15 Service of Process.
The Guarantor hereby consents to process being served in any suit,
action, or proceeding instituted in connection with this Agreement by (a) the
mailing of a copy thereof by certified mail, postage prepaid, return receipt
requested, to it at its address designated in Section 4.1 (Notices) and (b)
serving a copy thereof upon Xxxxx X. Xxxxxxx, Esquire, 0000 Xxxxxxxx Xxxxx,
XxXxxx, Xxxxxxxx 00000, the agent hereby designated and appointed as its agent
for service of process. The Guarantor irrevocably agrees that such service (a)
shall be deemed in every respect to be effective service of process upon it in
any such suit, action, or proceeding and (b) shall, to the fullest extent
permitted by law, be taken and held to be valid personal service upon the
Guarantor. Nothing in this Section shall affect the right of the Lender to serve
process in any manner otherwise permitted by law or limit the right of the
Lender otherwise to bring proceedings against the Guarantor in the courts of any
other jurisdiction or jurisdictions.
Section 4.16 WAIVER OF TRIAL BY JURY.
THE GUARANTOR AND THE LENDER HEREBY JOINTLY AND SEVERALLY WAIVE TRIAL
BY JURY IN ANY ACTION OR PROCEEDING NOT REQUIRED TO BE ARBITRATED PURSUANT TO
THE TERMS HEREOF TO WHICH THE GUARANTOR AND THE LENDER, OR EITHER OF THEM, MAY
BE PARTIES, ARISING OUT OF OR IN ANY WAY PERTAINING TO (A) THIS AGREEMENT, (B)
ANY OF THE FINANCING DOCUMENTS, OR (C) THE COLLATERAL. THIS WAIVER CONSTITUTES A
WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL PARTIES TO SUCH ACTIONS OR
PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO ARE NOT PARTIES TO THIS
AGREEMENT.
This waiver is knowingly, willingly and voluntarily made by the
Guarantor and the Lender, and the Guarantor and the Lender hereby represent that
no representations of fact or opinion have been made by any individual to induce
this waiver of trial by jury or to in any way modify or nullify its effect. The
Guarantor and the Lender further represent that they have been represented in
the signing of this Agreement and in the making of this waiver by independent
legal counsel, selected of their own free will, and that they have had the
opportunity to discuss this waiver with counsel.
Section 4.17 Liability of the Lender.
The Guarantor hereby agrees that the Lender shall not be chargeable for
any negligence, mistake, act or omission of any accountant, examiner, agency or
attorney employed by the Lender in making examinations, investigations or
collections, or otherwise in perfecting,
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maintaining, protecting or realizing upon any lien or security interest or any
other interest in the Collateral or other security for the Obligations.
By inspecting the Collateral or any other properties of the Borrowers
or by accepting or approving anything required to be observed, performed or
fulfilled by the Borrowers or to be given to the Lender pursuant to this
Agreement or any of the other Financing Documents, the Lender shall not be
deemed to have warranted or represented the condition, sufficiency, legality,
effectiveness or legal effect of the same, and such acceptance or approval shall
not constitute any warranty or representation with respect thereto by the
Lender.
Section 4.18 Reinstatement.
If at any time any payment, or portion thereof, made by, or for the
account of, the Borrowers or the Guarantor on account of any of the obligations
and liabilities arising hereunder or under any of the Financing Documents is set
aside by any court or trustee having jurisdiction as a voidable preference or
fraudulent conveyance or must otherwise be restored or returned by the Lender to
the Borrowers or to the Guarantor under any insolvency, bankruptcy or other
federal and/or state laws or as a result of any dissolution, liquidation or
reorganization of the Borrowers or upon, or as a result of, the appointment of
any receiver, intervenor or conservator of, or trustee, or similar officer for,
the Borrowers or any substantial part of its properties or assets, the Guarantor
hereby agrees that this Agreement shall continue and remain in full force and
effect or be reinstated, as the case may be, all as though such payment(s) had
not been made.
Section 4.19 Complete and Final Expression of Agreement.
This Agreement is intended by the Lender and the Guarantor to be a
complete, exclusive and final expression of the agreements contained herein. No
course of dealing, course of performance or trade usage, and no parol evidence
of any nature, shall be used to supplement or modify any terms of this
Agreement. The Lender and the Guarantor further agree that there are no
conditions to the full effectiveness of this Agreement, unless otherwise
expressly stated herein. The Guarantor has unconditionally delivered this
Agreement to the Lender, and failure to sign this or any other guarantee by any
other person shall not discharge the liability of the Guarantor hereunder.
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WITNESS the signature and seal of the Guarantor as of the day and year
first above written.
WITNESS OR ATTEST: SUNRISE ASSISTED LIVING, INC.
By: /s/ Xxxxxx X. Xxxxxx (SEAL)
------------------------- -----------------------------------
Xxxxxx X. Xxxxxx
President
By: /s/ Christian X. X. Xxxxxx (SEAL)
------------------------- -----------------------------------
Christian X. X. Xxxxxx
Executive Vice President
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COMMONWEALTH OF VIRGINIA, COUNTY OF ______________, TO WIT:
I HEREBY CERTIFY, that on this ____ day of April, 2001, before me, the
undersigned Notary Public of said Commonwealth, personally appeared Xxxxxx X.
Xxxxxx who acknowledged himself to be the President of Sunrise Assisted Living,
Inc., known to me (or satisfactorily proven) to be the person whose name is
subscribed to the within instrument, and acknowledged that he executed the same
for the purposes therein contained as the duly authorized officer of said
corporation by signing the name of the corporation by himself as President.
WITNESS my hand and Notarial Seal.
------------------------------
Notary Public
My Commission Expires:
COMMONWEALTH OF VIRGINIA, COUNTY OF ______________, TO WIT:
I HEREBY CERTIFY, that on this ___ day of April, 2001, before me, the
undersigned Notary Public of said Commonwealth, personally appeared Christian X.
X. Xxxxxx who acknowledged himself to be the Executive Vice President of Sunrise
Assisted Living, Inc., known to me (or satisfactorily proven) to be the person
whose name is subscribed to the within instrument, and acknowledged that he
executed the same for the purposes therein contained as the duly authorized
officer of said corporation by signing the name of the corporation by himself as
Executive Vice President.
WITNESS my hand and Notarial Seal.
------------------------------
Notary Public
My Commission Expires:
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COMMONWEALTH OF VIRGINIA, COUNTY OF ______________, TO WIT:
I HEREBY CERTIFY, that on this ___ day of April, 2001, before me, the
undersigned Notary Public of said Commonwealth, personally appeared
________________, who acknowledged him/herself to be the ______________ of Bank
of America, N.A., known to me (or satisfactorily proven) to be the person whose
name is subscribed to the within instrument, and acknowledged that s/he executed
the same for the purposes therein contained as the ______________ of said bank
by signing the name of the bank by him/herself as ______________.
WITNESS my hand and Notarial Seal.
------------------------------
Notary Public
My Commission Expires:
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