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EXHIBIT 10.31.9
AMENDED AND RESTATED MASTER
GUARANTY OF PAYMENT AGREEMENT
THIS AMENDED AND RESTATED MASTER GUARANTY OF PAYMENT AGREEMENT (this
"Agreement") is made this 23rd day of December, 1997, by SUNRISE ASSISTED
LIVING, INC., a Delaware corporation (the "Guarantor") for the benefit of
NATIONSBANK, N.A., as agent ("Agent") for itself and for certain additional
lenders (collectively with the Agent, the "Lenders") who are or shall be from
time to time participating as lenders in a bank group pursuant to the Amended
and Restated Agency Agreement of even date herewith (as amended, restated or
substituted from time to time, the "Agency Agreement").
RECITALS
A. SUNRISE EAST ASSISTED LIVING LIMITED PARTNERSHIP, a Virginia
limited partnership (the "Borrower"), obtained from the Agent and certain other
lenders (collectively, the "Original Lenders") a credit facility in the maximum
principal sum of $90,000,000 (the "Original Credit Facility") which was a
non-revolving line of credit pursuant to which the Borrower could obtain
certain construction/interim loans (each a "Facility Loan;" collectively, the
"Facility Loans") for assisted living facilities and independent living
facilities. The Original Credit Facility has been evidenced by a Master
Promissory Note dated June 13, 1996 as amended pursuant to a First Amendment to
Master Promissory Note dated September 5, 1996 and by a Second Amendment to
Master Promissory Note dated March 31, 1997 (collectively, the "Master Note").
B. In connection with the making of each Facility Loan, the
Borrower executed a promissory note in the maximum principal sum of each
Facility Loan (each a "Facility Note" and collectively, the "Facility Notes").
Availability under the Master Note was reduced by the principal sum of each
Facility Note. As of the date hereof, seven (7) Facility Loans have been made
under the Original Credit Facility evidenced by eight (8) Notes.
C. The Borrower has applied to the Lenders to increase the
maximum principal sum of the Original Credit Facility to $250,000,000 or such
greater amount as the Lenders may from time to time commit to lend pursuant to
the Agency Agreement (such increased and modified credit facility being
hereinafter referred to as the "Credit Facility" or the "Loan") and to provide
that the Credit Facility will be revolving. Advances or readvances are to be
made pursuant to, and secured by, the provisions of that certain Amended and
Restated Financing and Security
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Agreement dated the same date as this Agreement by and between the Agent and
the Borrower (as amended, restated or substituted from time to time, the
"Financing Agreement") and that certain Amended and Restated Master
Construction Loan Agreement dated the same as this Agreement by and between the
Agent and the Borrower (as amended, restated or substituted from time to time,
the "Construction Agreement").
D. The Loan is evidenced by that certain Amended, Restated,
Consolidated and Increased Master Promissory Note of even date herewith payable
by the Borrower to Agent on behalf of the Lenders (as amended, restated,
renewed or substituted from time to time, the "Note").
E. The Guarantor has requested the Lenders to enter into the
Financing Agreement with the Borrower and to make the Loan to the Borrower
pursuant thereto.
F. The Note, the Deeds of Trust (as defined in the Financing
Agreement), this Agreement, the Financing Agreement, the Construction Agreement
(as defined in the Financing Agreement), and all other documents evidencing or
securing the Loan are hereinafter referred to collectively as the "Financing
Documents."
G. The Lenders have required, as a condition to the making of the
Loan, that the Guarantor execute and deliver this Agreement to the Agent.
E. All defined terms used in this Agreement and not defined
herein shall have the meaning given to such terms in the Financing Agreement.
NOW, THEREFORE, in order to induce the Lenders to make the Loans to
the Borrower, the Guarantor covenants and agrees with the Lenders as follows:
ARTICLE 1
THE GUARANTY
SECTION 1.1 Recitals. The Recitals set forth above are
incorporated into this Agreement by reference.
SECTION 1.2 Guaranty. The Guarantor hereby unconditionally and
irrevocably guarantees to the Lenders:
(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
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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 Borrower to the Lenders, 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 1.3 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 agrees that the Lenders may, in
their 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 Loans or to the subordination of any lien or security interest therein;
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(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 Borrower shall then be in default;
(g) make future advances to the Borrower 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 Borrower as if this
Agreement were not in effect; and
(j) effect any release, compromise or settlement with any
of the Guarantor or any other guarantor.
Section 1.4 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 Borrower,
the Lenders and/or any other guarantor and shall not be conditional or
contingent upon pursuit or enforcement by the Lenders of any remedies it may
have against the Borrower 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 Lenders shall not
be required to make any demand upon the Borrower, or to sell the Collateral or
otherwise pursue, enforce or exhaust their remedies against the Borrower 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 Borrower or
in separate actions or proceedings, as often as the Lenders 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 Borrower 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 Borrower 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
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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 Borrower, any other guarantor
or any obligor under any of the Financing Documents, that may result from any
such proceedings.
Section 1.5 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;
(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
Lenders' 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 Borrower;
(h) any act or omission of the Lenders (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 1.6 Reimbursement for Expenses. In the event the Lenders
shall commence any action or proceeding for the enforcement of this Agreement,
then the Guarantor will reimburse the Lenders, promptly upon demand, for any
and all reasonable expenses incurred by the Lenders in connection with such
action or proceeding including, without limitation, reasonable
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attorneys' fees together with interest thereon at the Post-Default Rate.
Section 1.7 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 Agent, 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 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
3.1.3 hereof which default shall remain unremedied for ten (10) days after
written notice thereof to the Guarantor by the Agent.
(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
Agent, 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 bank-
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ruptcy, 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.
(h) Unless adequately insured in the reasonable opinion
of the Agent, 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
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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 Agent, 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 Agent.
(m) If the Guarantor transfers any of its assets in
violation of Section 3.3 hereof.
(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.
Section 1.8 Rescission of Election to Accelerate. In the event
the Agent 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 Agent; provided,
however, that the acceptance of a partial payment on account of the Note shall
not alone effect or rescind such election.
Section 1.9 Subordination; Subrogation. In the event the
Guarantor shall advance any sums to the Borrower, or in the event the Borrower
has 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 Agent or the Guarantor in trust for the Lenders and shall be
paid over to the Lenders on account of the Obligations without impairing or
releasing the obligations of the Guarantor hereunder.
Without the prior written consent of the Agent, 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 Lenders 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
Agent. The Guarantor shall assign, transfer, hypothecate or
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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
Borrower 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 Agent 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 Agent 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 Lenders 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 Lenders or in the names of the Guarantor or otherwise, as the
Lenders may deem necessary or advisable to carry out the provisions of this
Agreement. The Guarantor hereby agrees to execute and deliver to the Agent
such powers of attorney, assignments, endorsements or other instruments as may
be requested by the Agent in order to enable the Lenders 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 Lenders 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 Agent, the Guarantor shall endorse, assign and deliver to the
Agent 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 Borrower, or any other guarantor, then the Guarantor irrevocably
and absolutely waives any and all rights of contribution, indemnification,
reimbursement or any similar rights against the Borrower 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
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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 Borrower, or any such
guarantor, by reason of the existence of this Agreement in the event that the
Borrower or any such guarantor, becomes a debtor in any proceeding under the
United States Bankruptcy Code. This waiver is given to induce the Lenders to
make the Loans to the Borrower.
Section 1.10 Mandatory Arbitration. Any controversy or claim
between or among the parties hereto including but not limited to those arising
out of or relating to this Guaranty or any related agreements or instruments,
including any claim based on or arising from an alleged tort, shall be
determined by binding arbitration in accordance with the Federal Arbitration
Act (or if not applicable, the applicable state law), as promulgated from time
to time by the Rules of Practice and Procedure for the Arbitration of
Commercial Disputes of Judicial Arbitration and Mediation Services, Inc.,
predecessor in interest to Endispute, Inc., doing business as
"J.A.M.S./Endispute" and the "Special Rules" set forth below. In the event of
any inconsistency, the Special Rules shall control. Judgment upon any
arbitration award may be entered in any court having jurisdiction. Any party
to this Guaranty may bring an action, including a summary or expedited
proceeding, to compel arbitration of any controversy or claim to which this
agreement applies in any court having jurisdiction over such action. The
foregoing notwithstanding, in a claim pertaining to a Deed of Trust or
Collateral located in a state with "one-action" rule which might limit to
Lenders' remedies, the Agent shall have the right in its sole discretion to
restrict the application of this arbitration provision to the extent that it
would otherwise result in a limitation on the Lenders' remedies in such state.
(i) Special Rules. The arbitration shall be conducted in Fairfax
County, Virginia and administered by J.A.M.S./Endispute who will appoint an
arbitrator pursuant to its rules of practice and procedure; if
J.A.M.S./Endispute is unable or legally precluded from administering the
arbitration, then the American Arbitration Association will serve. All
arbitration hearings will be commenced within ninety (90) calendar days of the
demand for arbitration; further, the arbitrator shall only, upon a showing of
cause, be permitted to extend the commencement of such hearing for up to an
additional sixty (60) calendar days.
(ii) Reservations of Rights. Nothing in this Guaranty shall be
deemed to (i) limit the applicability of any otherwise applicable statutes of
limitation or repose and any waivers contained in this Guaranty; or (ii) be a
waiver by the Agent or the Lenders of the protection afforded to it by 12
U.S.C. Sec. 91 or any substantially equivalent state law; or (iii) limit the
right of Lender (A) to exercise self help remedies such as (but
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not limited to) setoff, or (B) to foreclose against any real or personal
property collateral, or (C) to obtain from a court provisional or ancillary
remedies such as (but not limited to) injunctive relief or the appointment of a
receiver. The Lenders may exercise such self help rights, foreclose upon such
property, or obtain such provisional or ancillary remedies before, during or
after the pendency of any arbitration proceeding brought pursuant to this
Guaranty. At the Agent or the Lenders' option, foreclosure under a deed of
trust or mortgage may be accomplished by any of the following: the exercise of
a power of sale under the deed of trust or mortgage, or by judicial sale under
the deed of trust or mortgage, or by judicial foreclosure. Neither the
exercise of self help remedies nor the institution or maintenance of an action
for foreclosure or provisional or ancillary remedies shall constitute a waiver
of the right of any party, including the claimant in any such action, to
arbitrate the merits of the controversy or claim occasioning resort to such
remedies. Notwithstanding the foregoing, in the event that the Lender
exercises such self help remedies or other actions, the Guarantor has not
waived any of its rights to seek legal or equitable relief to defend against
the Agent's or Lenders' exercise of such self help remedies or other actions.
No provision in the Financing Documents regarding submission to jurisdiction
and/or venue in any court is intended or shall be construed to be in derogation
of the provisions in any Financing Document for arbitration of any controversy
or claim.
(iii) Confidentiality. Any arbitration proceeding, award, findings
of fact, conclusions of law, or other information concerning such arbitration
matters shall be held in confidence by the parties and shall not be disclosed
except to each party's employees or agents as shall be reasonably necessary for
such party to conduct its business; provided, however, that either party may
disclose such information for auditing purposes by independent certified
accounts, for complying with applicable governmental laws, regulations or court
orders, or that is or becomes part of the public domain through no breach of
this Agreement.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
SECTION 2.1 The Guarantor represents and warrants to the Lenders
as follows:
2.1.1 Good Standing. The Guarantor (a) is duly
organized, existing and in good standing under the laws of the jurisdiction of
its organization, (b) has the power to own its property and to carry on its
business as now being conducted, and (c) is duly qualified to do business and
is in good standing
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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, 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
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prospective, of the Guarantor.
2.1.6 Financial Condition. The financial
statements of the Guarantor dated December 31, 1996, 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 which 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 Lenders. The
representations and warranties contained in this Section shall also cover
financial statements furnished from time to time to the Agent pursuant to
Section 0 of this Agreement.
2.1.7 Full Disclosure. The financial statements
referred to in Section 0 of this Agreement, 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 Lenders 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 Borrower 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 Loans and the incurring of any
Obligations.
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ARTICLE 3
COVENANTS
SECTION 3.1 The Guarantor hereby covenants and agrees as follows:
3.1.1 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 Lenders to
realize upon, the Collateral.
3.1.2 Further Assurances. The Guarantor will make,
execute, acknowledge and deliver all and every such further acts and assurances
as the Lenders shall from time to time require for confirming or carrying out
the intentions or facilitating the performance of the terms of this Agreement.
3.1.3 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 Lenders and their
duly authorized agents, attorneys and accountants to inspect, examine, and copy
its records and books of account at all reasonable times; (c) (i) as soon as
available, but in no event more than one hundred twenty (120) days after the
close of the Guarantor's fiscal years, provide the Agent with copies of (1) the
Guarantor's consolidated financial statements for the year in question, in form
and detail satisfactory to the Agent, prepared in accordance with generally
accepted accounting principles, consistently applied, and audited by an
independent certified public accountant satisfactory to the Agent, which
financial statements shall include a balance sheet as of the end of such fiscal
year, (2) the related statements of operations and retained earnings and cash
statements for such fiscal year in a format acceptable to the Agent, and (3) an
unqualified letter or opinion of the independent accountant, (ii) as soon as
available, but in no event more than forty-five (45) days after the end of the
Guarantor's fiscal quarters, provide the Agent 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 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) as soon as
available but in no event more than thirty (30) days after the
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date of filing, provide the Agent 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 Agent copies of each 10K or 10Q reports 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
Agent such other information with respect to the financial statements of the
Guarantor as the Lenders may from time to time require; and (f) 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 NationsBank, N.A.
(the "Bank") as agent for the Lenders set forth in the Amended
and Restated Agency Agreement dated December ___, 1997 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".
3.1.4 Estoppel Certificates. Within ten (10) days
following any request of the Agent so to do, the Guarantor will furnish the
Agent and such other persons as the Agent 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 3.2 Financial Covenants. Guarantor hereby covenants and
agrees that, until the Loans and all of the other Obligations have been paid
and performed in full, it will:
(a) Minimum Tangible Net Worth. Maintain, on a
consolidated basis with all subsidiaries, at all times during the term of the
Loan measured quarterly beginning with the quarter ending September 30, 1997, a
minimum Tangible Net Worth of not less than the sum of a $175,202,000 as of
June 30, 1997 plus 75% of the Guarantor's net income (if positive) for each
subsequent quarter plus 85% of the net proceeds to the Guarantor of any equity
capital transaction received during such quarter.
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"Tangible Net Worth" means, at any time, the sum at such time of Net Worth (as
defined by GAAP) less the total of (aa) all assets which would be classified as
intangible assets under GAAP, including goodwill, trademarks, trademark
applications, trade names, service marks, patent applications and licenses, and
deferred charges, (bb) any revaluation or other write-up in book value of
assets subsequent to the date of the most recent financial statements delivered
to the Agent, (cc) the amount of all loans and advances to, or investments in,
any person or entity, excluding cash equivalents and deposit accounts
maintained by the Guarantor with any financial institution; certain mortgage
revenue bonds issued by the Bucks County, Pennsylvania Industrial Development
Authority and investments of less than $2,500,000 individually (not to exceed
$10,000,000 in the aggregate), and (dd) advances or loans made to or
receivables from any unconsolidated affiliates of which the Guarantor owns less
than fifty percent (50%) or any stockholder of the Guarantor or any affiliate.
(b) Minimum Liquidity. Maintain at all times, on an
individual basis (i.e. parent company only), Minimum Liquid Assets (as defined
in the Financing Agreement) at all times of the greater of $25,000,000 or
ninety (90) days of Debt Service (as defined in the Financing Agreement) on all
of the Guarantor's direct and contingent liabilities.
(c) Notification of Certain Events. Promptly notify the
Agent upon obtaining knowledge of the occurrence of any of the following:
(i) any Event of Default under the Financing
Documents;
(ii) 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;
(iii) 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);
(iv) (A) 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 Borrower, the
Guarantor or the Management
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Company (as defined in the Financing Agreement), or (B) 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 Borrower, 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 (C)
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 (D) 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; and
(v) any other development in the business or affairs
of the Guarantor or the Management Company which may be a Material Adverse
Change; and
(vi) any actual contingent liability or a
potential contingent liability threatened or noticed in a written communication
of the Borrower of $1,000,000 or more,
in each case described in (i) through (vi) above, such notification shall
describe in detail satisfactory to the Agent the nature thereof and, in the
case of notification under this clause (iii), 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 Agent 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 3.3 Negative Covenants. Until the Credit Facility is
terminated and the Loans and the other Obligations have been paid or performed
in full, the Guarantor will not, without the prior written consent of the
Agent:
(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
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consent of the Agent 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) Sale of Assets. Sell, lease, or otherwise dispose
of any substantial portion of its assets (except for customary political and
charitable contributions and assets disposed of in the ordinary course of
business) unless such disposition is in exchange for not less than fair market
value and does not result in either a Material Adverse Change or a breach of
any covenant under the Credit Facility.
(c) 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.
(d) 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, (1) 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 (2) 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 Agent 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.
(e) ERISA Compliance. (A) 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;
(B) 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; (C) engage in or permit any Commonly Controlled Entity to engage in any
Prohibited Transaction; (D) incur or permit any Commonly Controlled Entity to
incur any Accumulated Funding Deficiency, whether or not
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waived, in connection with any Plan; (E) 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; (F) fail to notify the Agent that notice has been received of a
"termination" (as defined in ERISA) of any Multiemployer Plan to which the
Guarantor or any Commonly Controlled Entity has an obligation to contribute;
(G) incur or permit any Commonly Controlled Entity to incur a "complete
withdrawal" or "partial withdrawal" (as defined in ERISA) from any
Multiemployer Plan to which the Guarantor or any Commonly Controlled Entity has
an obligation to contribute; or (H) fail to notify the Agent that notice has
been received from the administrator of any Multiemployer 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).
(f) Amendments; Terminations. Amend or terminate or agree to
amend or terminate any License, participation agreement, the Management
Agreement, by the Guarantor with the Borrower or except in the ordinary course
of business, any other operating agreements which may be entered into by
Guarantor with respect to the Facility, or consent to or waive any material
provisions thereof.
ARTICLE 4
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 Xxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Sunrise Assisted Living, Inc.
0000 Xxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
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Sunrise Assisted Living, Inc.
0000 Xxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx
With a Courtesy Copy to:
Xxxxx X. Xxxxxxx, Esquire
Watt, Xxxxxx & Xxxxxx
0000 Xxxxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Agent: NationsBank, N.A.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
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.
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 Agent 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 Lenders and no act or failure to act from
time to time on the part of the Lenders 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 Agent 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.
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(d) no failure or delay by the Lenders 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 Lenders 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
Lenders 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 Lenders 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 Lenders 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 Lenders may:
(a) proceed against the Guarantor with or without
proceeding against the Borrower 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;
(d) without reducing or impairing the obligations of the
Guarantor and without notice thereof: 4.3.0(d)(i) fail to perfect the Lien in
any or all Collateral or to release any or all the Collateral or to accept
substitute Collateral, 4.3.0(d)(ii) approve the making of advances under the
Loans under the Loan Agreement, 4.3.0(d)(iii) waive any provision of this
Agreement or the other Financing Documents, 4.3.0(d)(iv) exercise
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or fail to exercise rights of set-off or other rights, or 4.3.0(d)(v) 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
Lenders, 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 Lenders. The Lenders may, without
notice to, or consent of, the Guarantor, sell, assign or transfer to or
participate with any Person or Persons all or any part of the Obligations, and
each such Person or Persons shall have the right to enforce the provisions of
this Agreement and any of the other Financing Documents as fully as the
Lenders, provided that the Lenders 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, the Lenders 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 Lenders, such Lender shall give notice to Borrower of such
transaction either before or after the transaction has occurred as such Lender
shall determine; however, such Lender shall give notice to the Borrower in
advance of any such transaction with a non-affiliate.
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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 Lenders and their respective 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
Lenders of the Loans 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 Agent'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 Agent with such
acknowledgments and agreements as the Agent 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 Lenders, 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 Lenders 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 Lenders 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.
SECTION 4.9 Applicable Law. As a material inducement to the
Lenders 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 Borrower, one or
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more of the Financing Documents may be executed elsewhere. The Lenders
acknowledge, 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 any of the Lenders other than the relationship of
guarantor and lenders and the Guarantor and the Lenders shall not be considered
partners or co-venturers for any purpose. The terms and provisions of this
Agreement are for the benefit of the Lenders and their respective 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 Lenders have no obligation to make any advance of any Loans for the benefit
of the Guarantor; the Guarantor has no beneficial interest in the proceeds of
the Loans 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 Loans or whether
the Lenders waive 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 Lenders and the Borrower relating to the Loans. Neither the
Lenders, the Borrower 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 this Agreement. The Guarantor irrevocably waives, to the fullest
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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 0 hereof 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 (i) shall be deemed in every respect to be
effective service of process upon it in any such suit, action, or proceeding
and (ii) 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 Lenders to serve process in any manner otherwise
permitted by law or limit the right of the Lenders 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
LENDERS 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 LENDERS, OR ANY 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 Lenders, and the Guarantor and the Lenders 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 Lenders 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
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waiver with counsel.
SECTION 4.17 Liability of the Lenders. The Guarantor hereby
agrees that the Lenders shall not be chargeable for any negligence, mistake,
act or omission of any accountant, examiner, agency or attorney employed by the
Lenders in making examinations, investigations or collections, or otherwise in
perfecting, 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 Borrower
or by accepting or approving anything required to be observed, performed or
fulfilled by the Borrower or to be given to the Lenders pursuant to this
Agreement or any of the other Financing Documents, the Lenders 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
Lenders.
SECTION 4.18 Reinstatement. If at any time any payment, or
portion thereof, made by, or for the account of, the Borrower 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 Lenders to the Borrower 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
Borrower or upon, or as a result of, the appointment of any receiver,
intervenor or conservator of, or trustee, or similar officer for, the Borrower
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 Lenders 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
Lenders and the Guarantor further agrees 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 Agent, and
failure to sign this or any other guarantee by any other person shall not
discharge the liability of the Guarantor hereunder.
26
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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.
_/s/ Xxxxx X. Tatusko___ By: _/s/ Xxxxx X. Faeder____(SEAL)
-------------------- -------------------
Xxxxx X. Xxxxxx
President and Chief Financial Officer
_/s/ Xxxxx X. Tatusko___ By: _/s/ Xxxxxx X. Newell___(SEAL)
-------------------- --------------------
Xxxxxx X. Xxxxxx
Executive Vice President
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STATE/COMMONWEALTH OF VIRGINIA,
COUNTY/CITY OF _Fairfax_, TO WIT:
I HEREBY CERTIFY, that on this 23rd day of December, 1997, before me,
the undersigned Notary Public of said Commonwealth, personally appeared Xxxxx
X. Xxxxxx who acknowledged himself to be the President and Chief Financial
Officer 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 and Chief Financial Officer.
WITNESS my hand and Notarial Seal.
_/s/ Xxxx X. Washington____
----------------------
Notary Public
My Commission Expires:
STATE/COMMONWEALTH OF VIRGINIA,
COUNTY/CITY OF _Fairfax_, TO WIT:
I HEREBY CERTIFY, that on this 23rd day of December, 1997, before me,
the undersigned Notary Public of said Commonwealth, personally appeared Xxxxxx
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.
_/s/ Xxxx X. Washington_____
----------------------
Notary Public
My Commission Expires:
