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EXHIBIT 10.52
OMNIBUS CONFIRMATION OF AND AMENDMENT TO SECURITY DOCUMENTS
THIS OMNIBUS CONFIRMATION OF AND AMENDMENT TO SECURITY DOCUMENTS (this
"Agreement") is made this 29th day of July, 1999, by SUNRISE ASSISTED LIVING,
INC., a Delaware corporation ("SALI"), SUNRISE ASSISTED LIVING INVESTMENTS, INC.
a Virginia corporation ("SALII"), SUNRISE DEVELOPMENT, INC., a Virginia
corporation ("SDI"), SUNRISE EAST ASSISTED LIVING LIMITED PARTNERSHIP, a
Virginia limited partnership ("SEAL"), SUNRISE SEAL, L.L.C., a Virginia limited
liability company ("Sunrise SEAL") and SUNRISE ASSISTED LIVING MANAGEMENT, INC.,
a Virginia corporation, formerly known as Sunrise Terrace, Inc. ("XXXXX") (SALI,
SALII, SDI, SEAL, Sunrise SEAL and XXXXX are collectively referred to herein as
the "Assignors") in favor of BANK OF AMERICA, N.A. d/b/a NATIONSBANK, N.A. ,
successor by merger to NationsBank, N.A., as the administrative agent
("Administrative Agent") for itself and for certain additional lenders
(collectively with the Administrative Agent, the "Lenders") who are or shall be
from time to time participating as lenders in a bank group pursuant to a Second
Amended and Restated Agency Agreement of even date herewith (as amended,
extended or substituted from time to time, the "Agency Agreement").
RECITALS
A. In connection with a credit facility (as modified, increased,
extended, restated or substituted from time to time, the "Credit Facility")
originally provided by the Administrative Agent and certain Lenders to SEAL in
the amount of $250,000,000, as evidenced by the Amended, Restated, Consolidated
and Increased Master Promissory Note made December 23, 1997 by SEAL to
Administrative Agent (as amended, restated or substituted from time to time, the
"Original Note"), as governed by the Amended and Restated Financing and Security
Agreement dated December 23, 1997 between SEAL and Administrative Agent (as
amended, restated or substituted from time to time, the "Existing Financing
Agreement"), and as further governed by the Amended and Restated Master
Construction Loan Agreement dated December 23, 1997 between SEAL and
Administrative Agent (as amended, restated or substituted from time to time, the
"Construction Agreement"), the Administrative Agent, was provided with the
following documents: (i) the Amended and Restated Pledge, Assignment and
Security Agreement made December 23, 1997 by XXXX and XXXXX in favor of the
Administrative Agent (as amended, confirmed, restated or substituted from time
to time, the "Pledge"); (ii) the Pledge, Assignment and Security Agreement made
December 30, 1998 by SDI in favor of the Administrative Agent (as amended,
confirmed, restated or substituted from time to time, the "SDI Pledge"); (iii)
the Amended and Restated Collateral Assignment of Licenses, Participation
Agreements and Resident Agreements made December 23, 1997 by SEAL for the
benefit of the Administrative Agent (as amended, confirmed, restated or
substituted from time to time, the "License Assignment"); (iv) the Amended and
Restated Collateral Assignment of Operating Agreements and Management Contracts
made December 23, 1997 by XXXX and XXXXX to the Administrative Agent (as
amended, confirmed, restated or substituted from time to time, the "Contract
Assignment"); and (v) the Management Fee Subordination Agreement made December
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23, 1997 by XXXX and XXXXX in favor of the Administrative Agent (as amended,
confirmed, restated or substituted from time to time, the "Fee Subordination")
(the Pledge, SDI Pledge, License Assignment, Contract Assignment and Fee
Subordination are collectively referred to as the "Security Documents").
B. As of December 30, 1998 Sunrise SEAL, was added as a borrower under
the Credit Facility pursuant to an amendment to the Original Note and the
Original Financing Agreement.
C. Certain Eligible Properties owned by Sunrise Riverside Assisted
Living, L.P., Sunrise Huntcliff Assisted Living Limited Partnership, Sunrise
Sterling Canyon Assisted Living Limited Partnership, Sunrise Paramus Assisted
Living Limited Partnership, Sunrise Fairfield Assisted Living, L.P., Sunrise
Bellevue Assisted Living Limited Partnership, Sunrise Oakland Assisted Living
Limited Partnership, Sunrise Walnut Creek Assisted Living Limited Partnership,
and Sunrise Decatur Assisted Living Limited Partnership (collectively, the "SEAL
Affiliates") have been included in the Borrowing Base under the Credit Facility,
and the SEAL Affiliates have guaranteed the Credit Facility but have not been
added as borrowers under the Credit Facility.
D. The Lenders have agreed to increase the Credit Facility to
$400,000,000 pursuant to the Second Amended, Restated and Increased Master
Promissory Note of even date herewith from SEAL, Sunrise SEAL and the SEAL
Affiliates to the Administrative Agent (as amended, restated, or substituted
from time to time, the "Note") and the Second Amended and Restated Financing and
Security Agreement of even date herewith by and among SEAL, Sunrise SEAL, the
SEAL Affiliates and the Administrative Agent (as amended, restated or
substituted from time to time, the "Financing Agreement").
E. In connection with the increase to the Credit Facility, (i) the SEAL
Affiliates, and (ii) every other entity which hereafter grants a lien to the
Administrative Agent on behalf of the Lenders on an Eligible Project and related
Collateral as collateral for the Credit Facility and enters into a Joinder
Agreement pursuant to the Financing Agreement (collectively, the "Additional
SEAL Affiliates") are to be added as borrowers under the Credit Facility.
F. The term "Borrowers" shall mean individually or collectively, SEAL,
Sunrise SEAL, the SEAL Affiliates and the Additional SEAL Affiliates.
G. Any capitalized term not otherwise defined in this Agreement shall
have the meaning provided for such term in the Financing Agreement.
NOW, THEREFORE, in consideration of and as a material inducement to, the
Lenders to modify the terms of the Credit Facility and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, effective as of the date hereof, the Assignor xxxxxx agrees as
follows:
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1. The Recitals are hereby incorporated by reference and made a part of
this Agreement.
2. The Assignors hereby acknowledge, approve, ratify and confirm that the
Security Documents will continue to apply to the Credit Facility, and agree that
the Administrative Agent's action in requiring the Assignors' consent by virtue
of this Agreement, to the modification and increase of the Credit Facility shall
not constitute a waiver of the Administrative Agent's or Lenders' right pursuant
to the terms of the Security Documents or any of the other Financing Documents
to renew, extend, increase the principal amount or otherwise modify the Credit
Facility or the Financing Documents without the Assignors' prior consent and
without affecting the Assignors' liability therefore.
3. The Assignos acknowledge and agree that:
(a) The Administrative Agent and the other Lenders have acted in good
faith and have conducted themselves in a commercially reasonable manner in their
relationship with the Borrower and the Assignors in connection with the Security
Documents and the Financing Documents and the Assignors hereby waive and release
any claims to the contrary.
(b) The Security Documents are valid and binding, and are enforceable
obligations of the Assignors, subject, however, to applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
creditors' rights generally and the exercise of judicial discretion in
accordance with general principals of equity.
4. The Assignors hereby release, acquit, and forever discharge the
Administrative Agent and Lenders, their officers, employees and agents from any
and all claims that the Administrative Agent or Lenders are in any way
responsible for the current condition or deterioration of the Borrowers'
business operations and/or financial condition, and from any and all claims that
the Administrative Agent or Lenders breached any agreement to loan money to the
Borrowers to fund any of the Borrowers' operations at any time. The Assignors
further agree that from and after the date hereof, they will not assert in any
legal proceedings that any deterioration of the business operations or financial
condition of the Borrowers as of the date of this Agreement was caused by any
breach or wrongful act of the Administrative Agent or Lenders. Without limiting
the generality of the following, the Assignors acknowledge that they are
personally benefiting from the extension of the Credit Facility and hereby waive
any claim that the Administrative Agent or Lenders violated the Equal Credit
Opportunity Act (15 U.S.C. Section 1691 et seq.) in connection with the Credit
Facility, the Note or any other obligation or security for any obligation which
is the subject thereof. The Assignors represent and warrant that they have no
claims, actions, causes of action, defenses, counterclaims or setoffs of any
kind or nature (collectively, "Claims") which they can assert against the
Administrative Agent or Lenders in connection with the making, closing,
administration, collection, and/or enforcement by the Administrative Agent or
Lenders of the Security Documents or any of the Financing Documents. IN THE
EVENT THAT THE ASSIGNORS HAVE ANY CLAIMS WHICH THEY NOW OR HEREAFTER MAY ASSERT
AGAINST THE ADMINISTRATIVE AGENT OR LENDERS IN CONNECTION WITH THE MAKING,
CLOSING, ADMINISTRATION, COLLECTION
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AND/OR THE ENFORCEMENT BY THE ADMINISTRATIVE AGENT OR THE LENDERS OF THE
SECURITY DOCUMENTS OR ANY OF THE FINANCING DOCUMENTS AT OR PRIOR TO THE DATE
HEREOF, THEN BY EXECUTING THIS AGREEMENT, THE ASSIGNORS FOREVER IRREVOCABLY
WAIVE AND RELINQUISH SUCH CLAIMS.
5. THE ASSIGNORS REPRESENT AND WARRANT THAT THEY ARE REPRESENTED BY
COUNSEL OF THEIR CHOICE WHO HAVE REVIEWED THIS AGREEMENT AND ADVISED ASSIGNORS
OF ITS CONTENTS AND MEANING OR HAVE BEEN URGED BY THE ADMINISTRATIVE AGENT TO
RETAIN COUNSEL AND HAVE ELECTED NOT TO DO SO. THE ASSIGNORS FURTHER REPRESENT
AND WARRANT THAT THEY ARE SIGNING THIS AGREEMENT VOLUNTARILY AND WITH FULL
UNDERSTANDING OF ITS CONTENTS AND MEANING.
6. This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Virginia.
IN WITNESS WHEREOF, the Assignors have caused this Agreement to be duly
executed as an instrument under seal effective as of the day and year first
written above.
WITNESS: SUNRISE ASSISTED LIVING, INC.
------------------------ By: /s/ Xxxxx X. Xxxxxx (SEAL)
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Xxxxx X. Xxxxxx
President
----------------------- By: /s/ Xxxxxx X. Xxxxxx (SEAL)
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Xxxxxx X. Xxxxxx
Executive Vice President
WITNESS: SUNRISE ASSISTED LIVING INVESTMENTS, INC.
----------------------- By:/s/ Xxxxx X. Xxxx (SEAL)
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Xxxxx X. Xxxx
Vice President
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WITNESS: SUNRISE DEVELOPMENT, INC.
----------------------- By:/s/ Xxxxx X. Xxxx (SEAL)
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Xxxxx X. Xxxx
Vice President
WITNESS: SUNRISE EAST ASSISTED LIVING
LIMITED PARTNERSHIP
------------------------ By: Sunrise Assisted Living Investments, Inc.
it general partner
By:/s/ Xxxxx X. Xxxx (SEAL)
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Xxxxx X. Xxxx
Vice President
SUNRISE SEAL, L.L.C.
By: Sunrise Development, Inc.
Managing Member
By: /s/ Xxxxx X. Xxxx (SEAL)
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Xxxxx X. Xxxx
Vice President
WITNESS: SUNRISE ASSISTED LIVING MANAGEMENT,
INC.
------------------------ By: /s/ Xxxxx X. Xxxx (SEAL)
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Xxxxx X. Xxxx
Vice President
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