EXHIBIT 10.101
$20,000,000.00
REVOLVING CREDIT AGREEMENT
(REVOLVING DEBT)
DECEMBER 23, 2002
BETWEEN
AL U.S. DEVELOPMENT VENTURE, LLC
AS BORROWER
AND
SUNRISE ASSISTED LIVING, INC.,
AS LENDER
REVOLVING CREDIT AGREEMENT
(REVOLVING DEBT)
THIS REVOLVING CREDIT AGREEMENT is made and entered into as of December 23, 2002
between (i) AL U.S. Development Venture, LLC, a Delaware limited liability
company, as Borrower, and (ii) Sunrise Assisted Living, Inc., a Delaware
corporation, as Lender.
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS. All capitalized terms used in this
Agreement which are not otherwise defined herein shall have the respective
meanings set forth in Appendix A hereto (the "Definitions Appendix"), and the
rules of construction and usage set forth in the Definitions Appendix shall be
applicable herein and therein. The Definitions Appendix is incorporated herein
by reference in its entirety and is a part of this Agreement to the same extent
as if it had been set forth in this Section 1.01 in full. Capitalized terms used
but not defined in this Agreement shall have the meanings set forth in the
Venture Agreement.
ARTICLE II
THE LOAN
SECTION 2.01 THE LOAN. Lender agrees, on the terms and
conditions set forth in this Agreement, to make a loan on a revolving basis (the
"Loan") to the Borrower in the maximum amount outstanding at any one time of
Twenty Million Dollars and 00/100 ($20,000,000.00), in order to provide Borrower
with funds that it will contribute to its indirect Subsidiaries, to be used by
such Subsidiaries in the development of the Projects. Sums borrowed and repaid
may be readvanced upon compliance with the terms and conditions of this
Agreement.
SECTION 2.02 FUNDING OF LOAN. Subject to the terms and
conditions set forth in this Agreement, Lender shall make advances of the Loan
to Borrower in immediately available funds within five (5) days after Lender's
receipt of a requisition for a loan advance complying with this Agreement;
provided, however, that Lender shall not be obligated to make more than two (2)
advances per month. Unless the Lender determines that any applicable condition
specified in Article III has not been satisfied, the Lender shall make the funds
available to the Borrower at the Lender's address as set forth on the signature
page to this Agreement.
SECTION 2.03 USE OF LOAN PROCEEDS. All Loan proceeds made
available to Borrower by Lender in accordance with this Agreement shall be made
available by Borrower to its Subsidiaries to fund costs associated with the
development of the Projects, as identified on Exhibit B attached hereto. Each
loan advance requisition delivered by Borrower to Lender shall identify the
Project for which the advance is being requested.
SECTION 2.04 NOTE: EVIDENCE OF LOAN. The Loan shall be evidenced
by a single, non-negotiable promissory note payable to Lender in an amount equal
to the Loan, in the form of the Note.
SECTION 2.05 INTEREST RATE. Interest shall accrue on the
outstanding principal amount of the Loan at the rate of ten percent (10%) per
annum.
SECTION 2.06 MATURITY OF LOAN. The principal amount of the Loan
together with accrued interest shall be due and payable on the Termination Date.
SECTION 2.07 LOAN REPAYMENT. The principal amount of the Loan,
together with any accrued interest, shall be repaid from the proceeds of the
construction loans for the Projects. To the extent that any existing Loan
balance exists with respect to a Project for costs for which the Borrower
receives construction loan proceeds, to the extent permitted by any lender, such
construction loan proceeds shall be applied to that portion of the Loan balance
advanced, incurred, or accrued in connection with such costs. In addition,
Borrower may, upon at least three (3) Business Days notice to the Lender, repay
the Loan, in whole, or in part in any amount, by paying the principal amount to
be repaid together with accrued interest thereon to the date of repayment.
SECTION 2.08 GENERAL PROVISIONS AS TO PAYMENTS. Notwithstanding
any Loan repayment Borrower may undertake or which may be required under Section
2.07 above, Borrower shall also make monthly payments of interest only on the
Loan not later than 12:00 Noon, prevailing U.S. Eastern Standard Time, on the
first (1st) day of each month, without set-off, counterclaim or other deduction,
in U.S. Dollars or other funds immediately available to the Lender at its
address. Whenever the payment of principal of, or interest on, the Loan shall be
due on a day which is not a Business Day, the date for payment thereof shall be
extended to the next succeeding Business Day unless such Business Day falls in
another calendar month, in which case the date for payment thereof shall be the
next preceding Business Day. If the date for payment of principal is extended by
operation of law or otherwise, interest thereon shall be payable for such
extended time.
Notwithstanding the foregoing or any other provision of this
Agreement to the contrary, payments of interest shall be required to be made
only if and to the extent that Borrower has sufficient Gross Revenues or
Proceeds from Capital Transactions available to pay such interest in accordance
with the provisions of Sections 3.2(h), 5.3.1 and 5.3.2 of the Venture
Agreement; and payments of principal shall be required to be made only if and to
the extent that Borrower has sufficient Proceeds from Capital Transactions
available to pay such principal in accordance with the provisions of Sections
5.3.1 and 5.3.2 of the Venture Agreement. To the extent that such Gross Revenues
or Proceeds from Capital Transactions are insufficient to pay interest under the
Loan on a current basis, as set forth in this paragraph, any such interest shall
accrue.
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SECTION 2.09 COMPUTATION OF INTEREST. Interest on the Loan shall
be computed on the basis of a year of 365 days and paid for the actual number of
days elapsed.
ARTICLE III
CONDITIONS
SECTION 3.01 CONDITIONS TO CLOSING. The obligation of the Lender
to make the Loan on the Closing Date is subject to the satisfaction of the
following conditions unless waived in writing by Lender:
(a) Effectiveness. This Agreement shall become effective in
accordance with Section 7.07.
(b) Note. On or prior to the Closing Date, the Lender shall have
received the duly executed original Note.
(c) Adverse Change, etc. On the Closing Date, nothing shall have
occurred (and the Lender shall not have become aware of any facts or conditions
not previously known) which the Lender shall determine has, or could reasonably
be expected to have, a Material Adverse Effect.
(d) Borrower's Certificate. The Lender shall have received a
certificate dated the Closing Date signed by the Borrower stating that (x) on
the Closing Date and after giving effect to the Loan being made on the Closing
Date, no Default or Event of Default shall have occurred or be continuing and
(y) to the best knowledge and belief of the Borrower, the representations and
warranties of the Borrower contained in this Agreement are true and correct on
and as of the Closing Date.
(e) Company Proceedings. On the Closing Date, the Borrower shall
have delivered to the Lender (i) a copy of the Borrower's articles of
organization and operating agreement (or analogous governing documents), as
amended; (ii) a certificate by the appropriate governmental authority dated as
of a recent date, as to the existence of the Borrower as a duly organized
company; (iii) a certificate of the Borrower, dated the Closing Date and
certifying (A) that Borrower's articles of organization, as referenced by the
certificate furnished pursuant to clause (ii) above, have not been amended since
the date of such certification, (B) as to the absence of dissolution or
liquidation proceedings by or against the Borrower, (C) that attached thereto is
a true and complete copy of the articles of organization and operating agreement
of the Borrower as in effect on the date of such certification and all other
times relevant to the transactions contemplated hereby, (D) that attached
thereto is a true, correct and complete copy of resolutions adopted by the
members of the Borrower authorizing the execution, delivery and performance of
this Agreement and the Note and each other document delivered in connection
herewith or therewith and that said resolutions have not been amended and are in
full force and effect on the date of such certificate, and (E) as to the
incumbency and specimen signatures of
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the Officers of the Borrower executing this Agreement and the Note or any other
document delivered in connection herewith or therewith.
All company and legal proceedings and instruments and agreements
relating to the transactions contemplated by this Agreement or in any other
document delivered in connection therewith shall be satisfactory in form and
substance to the Lender and its counsel, and the Lender shall have received all
information and copies of all documents and papers, including records of company
proceedings, governmental approvals, good standing certificates and bring-down
telegrams, if any, which the Lender reasonably may have requested in connection
therewith, such documents and papers, where appropriate, to be certified by
proper company or Governmental Authorities.
(f) Representations and Warranties. All representations and
warranties made by Borrower hereunder shall be true and correct in all material
respects.
Lender acknowledges receipt of all of the foregoing materials and
certificates, and acknowledges that the same are satisfactory to Lender as of
the Closing Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01 BORROWER'S EXISTENCE AND POWER. The Borrower is a
limited liability company duly formed and validly existing under the laws of the
State of Delaware and has all company powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted. To the extent required by law, Borrower is duly
qualified to do business in the jurisdictions where the Projects are located.
SECTION 4.02 BORROWER'S AND GOVERNMENTAL AUTHORIZATION; NO
CONTRAVENTION. The execution, delivery and performance by the Borrower of this
Agreement and the Note are within the company powers of the Borrower, have been
duly authorized by all necessary company action, to Borrower's knowledge,
require no action by or in respect of, or filing with, any governmental body,
agency or official (except for any such action or filing as shall have been
taken or made and that is in full force and effect from and after the Closing
Date) and, to Borrower's knowledge, do not contravene, or constitute (with or
without the giving of notice or lapse of time or both) a default under, any
provision of applicable law or of the articles of organization and operating
agreement (or analogous organizational documents) of the Borrower or of any
agreement, judgment, injunction, order, decree or other instrument binding upon
or affecting the Borrower or result in the creation or imposition of any Lien on
any asset of the Borrower.
SECTION 4.03 BINDING EFFECT. This Agreement constitutes a valid
and binding agreement of the Borrower, and the Note, when executed and delivered
in accordance with this
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Agreement, will constitute a valid and binding obligation of the Borrower, in
each case enforceable against the Borrower in accordance with its terms except
in each case as such enforceability may be limited by (i) bankruptcy, insolvency
or similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
SECTION 4.04 VIOLATIONS OF LAW. To Borrower's knowledge,
Borrower is not in violation of any applicable statute, rule, regulation,
ordinance or order of any Governmental Authority, the violation of which might
have a Material Adverse Effect.
SECTION 4.05 REGULATORY RESTRICTIONS ON BORROWING. To Borrower's
knowledge, Borrower is not subject to any regulatory scheme which restricts its
ability to incur debt or limits its ability to consummate the transactions
contemplated hereby.
SECTION 4.06 NO BURDENSOME RESTRICTIONS. To Borrower's
knowledge, no contract, lease, agreement or other instrument to which the
Borrower is a party or by which any of its property is bound or affected, no
charge, corporate restriction, judgment decree or order and no provision of
Applicable Law or governmental regulation has had or can reasonably be expected
to have a Material Adverse Effect.
SECTION 4.07 SOLVENCY. After giving effect to the execution and
delivery of this Agreement and the Note, the consummation of the transactions
contemplated hereby and thereby and the making of the Loan hereunder, Borrower
is Solvent.
SECTION 4.08 NO DEFAULT. To Borrower's knowledge, Borrower is
not in default with respect to (a) any note, indenture, loan agreement mortgage,
lease, deed or other similar agreement relating to Indebtedness to which
Borrower is a party or by which Borrower is bound or (b) any other instrument,
document or agreement to which Borrower is a party or by which Borrower or any
of its properties are bound, the default of which would or could reasonably be
expected to have a Material Adverse Effect.
SECTION 4.09 BROKER'S OR FINDER'S FEES. To Borrower's knowledge,
no broker's or finder's fees or commissions have been incurred or will be
payable by the Borrower to any Person in connection with the transactions
contemplated by this Agreement.
SECTION 4.10 USE OF PROCEEDS. The proceeds of the Loan made
under this Agreement will be used by the Borrower to pay for the cost of
developing and constructing the Projects and costs incidental to the foregoing.
SECTION 4.11 CONDITIONS PRECEDENT TO ADVANCES. Lender's
obligation to make an advance of Loan proceeds shall be subject to satisfaction
of the following conditions precedent, in Lender's reasonable judgment:
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(a) Receipt of a requisition from Borrower, in a form reasonably
satisfactory to Lender, setting forth the amount of the Loan advance requested.
(b) Receipt of evidence satisfactory to Lender that Borrower's
intended uses of the proceeds will not contravene any term of this Agreement.
(c) Receipt of evidence satisfactory to Lender that previous
advances were applied to pay the costs described in the previous requisitions.
Lender acknowledges that Sunrise Assisted Living Investments,
Inc. ("SALII"), a Related Party of Lender, is a Member of Borrower, and,
accordingly, agrees that Borrower shall not be in breach of any representation
or warranty set forth in this Article IV if SALII knew or should have known that
such representation or warranty was untrue or misleading in any way and further
agrees that any such knowledge shall not be imputed to Borrower.
ARTICLE V
BORROWER'S COVENANTS
The Borrower agrees that, so long as any amount payable
hereunder or under the Note remains unpaid:
SECTION 5.01 REPORTING REQUIREMENTS. Upon Lender's request,
Borrower shall deliver or cause to be delivered to the Lender such financial
statements as are routinely prepared by Borrower for its Members. Borrower shall
also provide such additional information regarding the condition, results of
operations, properties, assets, business or prospects of the Borrower as the
Lender may reasonably request.
SECTION 5.02 NOTIFICATIONS TO THE LENDER. Borrower shall notify
the Lender in writing within ten (10) Business Days: (a) upon occurrence
thereof, of any Default or Event of Default hereunder, (b) upon occurrence
thereof, of any event or condition which could have a Material Adverse Effect;
and (c) upon the occurrence thereof, of Borrower's default under (i) any note,
indenture, loan agreement, mortgage, lease, deed or other similar agreement
relating to any indebtedness of Borrower, including, without limitation, the
Loan Documents, or (ii) any other instrument, document or agreement to which
Borrower is a party or by which Borrower or any of its properties is bound, the
default of which could have a Material Adverse Effect.
SECTION 5.03 ENVIRONMENTAL MATTERS. Borrower shall comply with
all Environmental Laws and, in the event of any "release" or "threatened
release" of any Hazardous Substance onto, at or under the property of the
Borrower which requires or may require notification, response, assessment,
investigation or remedial action pursuant to any Environmental Law, notify the
Lender, and proceed with due diligence and, at the cost and expense of the
Borrower, to respond appropriately, in accordance with all requirements of the
Environmental Laws.
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SECTION 5.04 PAYMENT OF OBLIGATIONS. Borrower shall pay and
discharge, as the same shall become due and payable, (i) all its respective
obligations and liabilities, including all claims or demands of materialmen,
mechanics, carriers, warehousemen, landlords and other like persons which, in
any such case, if unpaid, might by law give rise to a Lien upon any of its
properties or assets and (ii) all lawful taxes, assessments and charges or
levies made upon its properties or assets, by any governmental body, agency or
official except where any of the items in clause (i) or (ii) of this Section may
be diligently contested in good faith by appropriate proceedings and the
Borrower shall have set aside on its books, if required under generally accepted
accounting principles, appropriate reserves with respect to any such items.
SECTION 5.05 OTHER INDEBTEDNESS. Borrower shall maintain all of
its Indebtedness in whatsoever manner incurred, including, but not limited to,
Indebtedness for borrowed money or for services or goods purchased, in a current
status.
SECTION 5.06 MAINTENANCE OF PROPERTY. The Borrower shall keep
all property useful and necessary in its business in good working order and
condition, subject to ordinary wear and tear.
SECTION 5.07 INSURANCE. Borrower shall:
(a) Keep all of its property insured by insurance companies (i)
acceptable to the Lender; and (ii) licensed to do business in all jurisdictions
in which the Borrower does business, against loss or damage by fire or other
risk usually insured against under extended coverage endorsement and theft,
burglary, and pilferage, together with such other hazards as the Lender may
reasonably from time to time request, in amounts satisfactory to the Lender;
(b) Maintain at all times liability insurance coverage against
such risks and in such amounts as are customarily maintained by others in
similar businesses, such insurance to be carried by insurance companies (i)
acceptable to the Lender and (ii) licensed to do business where Borrower
conducts its business; and,
(c) Deliver certificates of insurance for such policy or
policies to the Lender, containing endorsements, in form satisfactory to the
Lender, providing that such insurance shall not be cancelable, except upon
thirty (30) days prior written notice to the Lender. In the event of any
termination or notice of non-payment by any insurer with respect to any policy
or any lapse in the coverage thereunder, the Borrower shall use its best efforts
to cause such insurer to give prompt written notice to the Lender of the
occurrence of such termination, nonpayment or lapse.
SECTION 5.08 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE.
The Borrower shall continue to engage in business of the same general type as
now conducted by the Borrower, and will preserve, renew and keep in full force
and effect its company existence and its rights, privileges and franchises
necessary or desirable in the normal conduct of business.
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SECTION 5.09 COMPLIANCE WITH LAWS. The Borrower shall comply
with all applicable laws, ordinances, rules, regulations, and requirements of
governmental authorities except (i) where the necessity of compliance therewith
is contested in good faith by appropriate proceedings or (ii) where
noncompliance could not reasonably be expected to have a Material Adverse
Effect.
SECTION 5.10 ACCOUNTING; INSPECTION OF PROPERTY. BOOKS AND
RECORDS. The Borrower shall keep proper books of record and account in which
full true and correct entries in conformity with generally accepted accounting
principles shall be made of all dealings and transactions in relation to its
business and activities, will maintain its fiscal reporting periods on the
present basis and will permit representatives of the Lender to visit and inspect
any of its properties, to examine and make copies from any of its books and
records and to discuss its affairs, finances and accounts with its manager,
employees and independent public accountants, all at such reasonable times and
as often as may reasonably be desired.
SECTION. 5.11 RESTRICTION ON LIENS. The Borrower shall not
create, incur, assume or suffer to exist any Lien of any kind on any of its
assets except for the Permitted Lien.
SECTION 5.12 CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. The
Borrower shall not (i) consolidate or merge with or into any other Person or
(ii) sell, lease or otherwise transfer, directly or indirectly, all or
substantially all of the assets of the Borrower to any other Person or Persons
except for affiliates of Borrower.
SECTION 5.13 INDEPENDENCE OF COVENANTS. All covenants contained
herein shall be given independent effect.
SECTION 5.14 TAX RETURNS. Borrower shall file all tax returns
and other reports that Borrower is required by law to file, maintain adequate
reserves for the payment of all taxes, assessments, governmental charges and
levies imposed upon its income, or its profits, or upon any property belonging
to it, and pay and discharge all such taxes, assessments, governmental charges
and levies prior to the date on which penalties attach thereto, except where the
same may be contested in good faith by appropriate proceedings and for which
adequate reserves have been established.
SECTION 5.15 COMPLIANCE WITH ORGANIZATIONAL DOCUMENTS. Borrower
shall comply with its articles of organization and operating agreement (or
analogous governing documents).
SECTION 5.16 BUSINESS ACTIVITIES. Borrower shall not engage in
any activities other than the development and construction of the Projects and
activities incidental to such development and construction.
ARTICLE VI
DEFAULTS
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SECTION 6.01 EVENTS OF DEFAULT. An Event of Default shall have
occurred and be continuing if:
(i) Borrower fails to pay when due any principal of the Loan or
fails to pay any interest on the Loan (in each case, subject to the
second paragraph of Section 2.08), any fee or any other amount payable
hereunder or under the Note for ten (10) days following written notice
thereof;
(ii) Borrower shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it
or any substantial part of its property, or shall consent to any such
case or other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail generally to pay
its debts as they become due, or shall take any company or corporate
action to authorize any of the foregoing; or,
(iii) an involuntary case or other proceeding shall be commenced
against the Borrower seeking liquidation, reorganization or other relief
with respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other similar official
of it or any substantial part of its property, and such involuntary case
or other proceeding shall remain undismissed and unstayed for a period
of 120 days.
In the case of (i) above, and in such event, while such event is
continuing, the Lender may by notice to the Borrower terminate the Loan and it
shall thereupon terminate, and the Loan, together with accrued interest and
accrued and unpaid fees thereon, shall thereupon become immediately due and
payable without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrower. In the case of (ii) or (iii) above,
without any notice to the Borrower or any other act by the Lender, the Loan
shall thereupon terminate and the Loan (together with accrued interest and
accrued and unpaid fees thereon) shall become immediately due and payable
without presentment demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower.
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ARTICLE VII
MISCELLANEOUS
SECTION 7.01 NOTICES. Unless otherwise specified herein, all
notices, requests and other communications to a party hereunder shall be in
writing (including bank wire, facsimile transmission or similar writing) and
shall be given to the Borrower or the Lender, at their respective addresses or
facsimile numbers set forth on the signature pages hereof. Each such notice,
request or other communication shall be effective (i) if given by facsimile
transmission, when transmitted to the facsimile number specified in this Section
and confirmation of receipt is received, (ii) if given by mail, 48 hours after
such communication is deposited in the mails, certified mail, return receipt
requested, with appropriate first class postage prepaid, addressed to the Lender
or (iii) if given by any other means, when delivered to the Lender's address
specified on the signature page. Rejection or refusal to accept, or the
inability to deliver because of a changed address of which no notice was given
shall not affect the validity of notice given in accordance with this Section.
SECTION 7.02 NO WAIVERS. No failure by the Lender to exercise,
no course of dealing with respect to, and no delay in exercising any right,
power or privilege hereunder or under the Note shall operate as a waiver thereof
nor shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies provided herein shall be cumulative and not exclusive of any
rights or remedies provided by law.
SECTION 7.03 EXPENSES; INDEMNIFICATION.
(a) Expenses. Each party shall pay its own expenses incurred in
connection with the Loan, except that if an Event of Default occurs, Borrower
shall pay all out-of-pocket expenses incurred by the Lender, including (without
duplication) the fees and disbursements of outside counsel, in connection with
such Event of Default and collection, bankruptcy, insolvency and other
enforcement proceedings resulting therefrom.
(b) Indemnity in Respect of Loan Documents. Except to the extent
caused by the act or omission of Lender or SALII, Borrower agrees to indemnify
the Lender, its Affiliates and the respective directors, officers, trustees,
agents and employees of the foregoing (each an "Indemnitee") and hold each
Indemnitee harmless from and against any and all liabilities, losses, damages,
costs and expenses of any kind, including, without limitation, the reasonable
fees and disbursements of counsel, which may be incurred by such Indemnitee in
connection with any investigative, administrative or judicial proceeding
(whether or not such Indemnitee shall be designated a party thereto) brought or
threatened relating to or arising out of this Agreement or any actual or
proposed use of proceeds of the Loan hereunder.
(c) Indemnity in Respect of Environmental Liabilities. Except to
the extent caused by the act or omission of Lender or SALII, Borrower hereby
indemnifies the Lender from and against, and agrees to hold the Lender harmless
from, any and all liabilities, losses, damages,
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costs and expenses of any kind (including without limitation reasonable expenses
of investigation by engineers, environmental consultants and similar technical
personnel and reasonable fees and disbursements of counsel) of the Lender
arising out of, in respect of or in connection with any and all Environmental
Liabilities. Without limiting the generality of the foregoing, the Borrower
hereby waives all rights for contribution or any other rights of recovery with
respect to liabilities, losses, damages, costs and expenses arising under or
related to Environmental Laws that it might have by statute or otherwise against
the Lender.
SECTION 7.04 AMENDMENTS AND WAIVERS. Any provision of this
Agreement or the Note may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed by the Borrower and the Lender.
SECTION 7.05 SUCCESSORS AND ASSIGNS. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, provided that neither Lender nor
Borrower may assign or otherwise transfer any of its rights under this Agreement
without the prior written consent of the other.
SECTION 7.06 GOVERNING LAW; SUBMISSION TO JURISDICTION: This
agreement and the note shall be governed by and construed in accordance with the
laws of the Commonwealth of Virginia. Each of the parties hereto hereby submits
to the nonexclusive jurisdiction of the United States District Court for the
Eastern District of Virginia and of any Virginia state court for purposes of all
legal proceedings arising out of or relating to this agreement or the
transactions contemplated hereby. Each of the parties hereto irrevocably waives,
to the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such proceeding brought in such
a court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum.
SECTION 7.07 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This
Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument. This Agreement and the Note constitute the entire agreement
and understanding among the parties hereto and supersede any and all prior
agreements and understandings, oral or written, relating to the subject matter
hereof. This Agreement shall become effective upon receipt by the Lender of
counterparts hereof signed by each of the parties hereto (or, in the case of any
party as to which an executed counterpart shall not have been received, receipt
by the Lender in form satisfactory to it of telegraphic, facsimile or other
written confirmation from such party of execution of a counterpart hereof by
such party).
SECTION 7.08 WAIVER OF JURY TRIAL. THE BORROWER AND THE LENDER
EACH HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
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SECTION 7.09 CONFIDENTIALITY. The Lender agrees to hold all
non-public information obtained pursuant to the requirements of this Agreement
in accordance with its customary procedure for handling confidential information
of this nature, provided that nothing herein shall prevent the Lender from
disclosing such information (i) to any other Person if reasonably incidental to
the administration of the Loan, (ii) upon the order of any court or
administrative agency, (iii) upon the request or demand of any regulatory agency
or authority, (iv) which had been publicly disclosed other than as a result of a
disclosure by the Lender prohibited by this Agreement, (v) in connection with
any litigation to which the Lender may be a party, (vi) to the extent necessary
in connection with the exercise of any remedy hereunder, and (vii) to Lender's
legal counsel and independent auditors.
SECTION 7.10 NOTICES. All notices, demands, consents, approvals,
and requests given by either party to the other hereunder shall be in writing
and shall be sent by hand delivery, by a nationally recognized overnight
courier, or by registered or certified mail, postage prepaid, return receipt
requested, to the parties at the following addresses:
Borrower: AL U.S. Development Venture, LLC
▇/▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
World Trade Center
Two ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Asset Manager -- AEW Senior Housing Company, LLC
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to: AEW Capital Management, L.P.
World Trade Center, Two ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ and (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Copy To: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esquire
▇▇▇▇ and ▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
12
Lender : Sunrise Assisted Living, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Legal Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esquire
Watt, Tieder, Hoffar & ▇▇▇▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address and to the attention of such other person as either
party may from time to time designate in writing. Notices properly given as
described above shall be effective upon receipt. Refusal to accept delivery
shall constitute receipt.
[The signature page follows]
13
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
BORROWER:
AL U.S. DEVELOPMENT VENTURE, LLC
By: Sunrise Assisted Living Investments, Inc., its
Managing Member
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------
Title: Vice President
--------------
By: AEW Senior Housing Company, LLC, a member
By: Seaport Senior Housing Management, LLC,
its Managing Member
By: /s/▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
Title: Vice President
--------------
LENDER:
SUNRISE ASSISTED LIVING, INC., a Delaware
corporation
By: /s/Christian ▇.▇. ▇▇▇▇▇▇
------------------------
Name: Christian ▇.▇. ▇▇▇▇▇▇
---------------------
Title: Executive Vice President
------------------------
Appendix A Definitions and Usage
Exhibit A Form of Note
Exhibit B List of Projects
Exhibit C List of Subsidiaries
14
APPENDIX A
DEFINITIONS APPENDIX
The definitions set forth in this Definitions Appendix are
incorporated by reference into the Revolving Credit Agreement dated December __,
2002 between AL U.S. Development Venture, LLC, as Borrower, and Sunrise Assisted
Living, Inc., as Lender (as the same may be amended, modified or supplemented
from time to time, the "Agreement"). Reference in this Definitions Appendix to
"this Agreement," "hereof," "thereof," "hereunder" and to any Article or Section
shall be interpreted to mean this Agreement and the referenced Article or
Section, including this Definitions Appendix.
DEFINITIONS
"Affiliate" means with respect to any person or entity (a
"Person"), (i) any Person who directly or indirectly through one or more
intermediaries controls, is controlled by or is under common control with a
Person or (ii) any Person of which a Person is the beneficial owner of a
twenty-five percent (25%) or greater interest or (iii) any Person who acquires
all or substantially all of the assets of a Person. A Person shall be deemed to
control another Person if such Person, directly or indirectly, has the power to
direct the management, operations or business of such Person. The term
"beneficial owner" is to be determined in accordance with Rule 13d-3 under the
Securities Exchange Act of 1934.
"Agreement" means this Revolving Credit Agreement, as it may be
amended, modified or supplemented from time to time.
"Applicable Law" means all provisions of statutes, rules,
regulations and orders of any Governmental Authority applicable to a Person, and
all orders and decrees of all courts and arbitrators in proceedings or actions
in which the Person in question is a party.
"Borrower" means AL U.S. Development Venture, LLC, a limited
liability company organized under the laws of the Sate of Delaware.
"Business Day" shall mean a day on which banks are not required
or authorized to close in Fairfax County, Virginia, U.S.A.
"Closing Date" means the date hereof.
"Default" means the occurrence of any event or condition which,
after satisfaction of any requirement for the giving of notice or the lapse of
time, or both, would become an Event of Default.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions grants,
15
franchises, licenses, agreements or other governmental restrictions relating to
the environment or to emissions, discharges or releases of pollutants,
contaminants, petroleum or petroleum products, chemicals or industrial, toxic or
hazardous substances or wastes into the environment including, without
limitation, ambient air, surface water, ground water, or land, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants, petroleum or
petroleum products, chemicals or industrial, toxic or hazardous substances or
wastes or the clean-up or other remediation thereof.
"Event of Default" means any of the events or conditions
described in Section 6.01.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof and any agency, department or other
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to any government.
"Hazardous Substances" means any toxic, radioactive, caustic or
otherwise hazardous substance, including petroleum, its derivatives, by-products
and other hydrocarbons, or any substance having any constituent elements
displaying any of the foregoing characteristics.
"Indebtedness" means, as applied to any Person or entity, (a)
all indebtedness, obligations or other liabilities of such Person (i) for
borrowed money or evidenced by debt securities, debentures, acceptances, notes
or other similar instruments, and any accrued interest, fees and charges
relating thereto; (ii) under profit payment agreements or similar agreements; or
(iii) to pay the deferred purchase price of property or services, except
unsecured accounts payable and accrued expenses arising in the ordinary course
of business which are less than 60 days past due; (b) all indebtedness,
obligations or other liabilities of such Person or others secured by a Lien on
any property of such Person, whether or not such indebtedness, obligations or
liabilities are assumed by such Person, all as of such time; (c) indebtedness of
others Guaranteed by such Person.
"Lender" means Sunrise Assisted Living, Inc., in its capacity as
Lender, and its successors and assigns.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset. For the purposes of this Agreement, the Borrower shall be deemed to own
subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement or other
title retention agreement relating to such asset.
"Loan" has the meaning set forth in Section 2.01.
"Loan Documents" means this Agreement, the Note, the other
instruments, documents or agreements executed by Borrower pursuant to Section
3.01, any certificates issued by any Governmental Authority with respect to the
formation and organization of the Borrower,
16
and all other instruments, documents and agreements now or hereafter executed
and/or delivered by Borrower in connection herewith, or any one, more, or all of
the foregoing, as the context shall require, and "Loan Document" shall mean any
one of the Loan Documents.
"Material Adverse Effect" means any event or condition which,
alone or when taken with other events or conditions occurring or existing
concurrently therewith (a) has or is reasonably expected to have a material
adverse effect on the business, operations, condition (financial or otherwise),
assets, liabilities, prospects, or properties of the Borrower; (b) has or is
reasonably expected to have any material adverse effect on the validity or
enforceability of this Agreement or any Loan Document, (c) materially impairs or
is reasonably expected to materially impair the ability of Borrower to pay and
perform under this Agreement; or (d) materially impairs or is reasonably
expected to materially impair the ability of the Lender to enforce its rights
under this Agreement.
"Note" means promissory note of the Borrower, substantially in
the form of Exhibit A hereto, evidencing the obligation of the Borrower to repay
the Loan.
"Permitted Lien" means the Lien securing that certain loan to be
obtained by Borrower (initially) for the construction and (ultimately) the
permanent financing of the Projects, which loan shall be in an amount not to
exceed seventy-five percent (75%) of the then current fair market value of said
Projects. This Loan shall be subordinate thereto.
"Person" means and includes any individual, sole proprietorship,
partnership, joint venture, limited liability company, trust, unincorporated
organization, association, corporation, institution, entity, party or government
(whether national, federal, state, county, city, municipal, or otherwise,
including, without limitation, any instrumentality, division, agency, body or
department thereof).
"Project" or "Projects" means the land and the assisted living
or independent living facilities to be constructed thereon described on Exhibit
B.
"Quarterly Period" means each period beginning with the first
day of a calendar quarter (or in the case of the first Quarterly Period during
the term of the Loan, the Closing Date) and ending on the last day of such
calendar quarter.
"Solvent" means, as to any Person or entity, that such Person or
entity (a) has capital sufficient to carry on its business and transactions and
all business and transactions in which it is about to engage, (b) is able to pay
its debts as they mature and (c) owns property whose fair salable value is
greater than the amount required to pay its debts (including contingent
obligations).
"Subsidiary" means any entity listed on Exhibit C.
17
"Tax" means and includes any present or future tax, levy, cost
or charge of any nature imposed by any government or any authority or political
subdivision thereof, excluding taxes on or measured by the net income of the
Lender imposed by any jurisdiction in which the principal office of the Lender
is located.
"Termination Date" means the date which is eight (8) years from
the Closing Date.
"United States" means the United States of America, including
the States and the District of Columbia, but excluding its territories and
possessions.
"Venture Agreement" means the Limited Liability Company
Agreement of Borrower, of even date herewith.
18
USAGE
The following rules of construction and usage shall be
applicable to any instrument that is governed by this Appendix:
(i) All terms defined in this Appendix shall have the defined
meanings when used in any instrument governed hereby and in any certificate or
other document made or delivered pursuant thereto unless otherwise defined
therein.
(ii) The words "hereof," "herein," "hereunder" and words of
similar import when used in an instrument refer to such instrument as a whole
and not to any particular provision or subdivision thereof, references in any
instrument to "Article," "Section" or another subdivision or to an attachment
are, unless the context otherwise requires, to an article, section or
subdivision of or an attachment to such instrument; and the term "including"
means "including without limitation."
(iii) The definitions contained in this Appendix are equally
applicable to both the singular and plural forms of such terms and to the
masculine as well as to the feminine and neuter genders of such terms.
(iv) Any agreement, instrument or statute defined or referred to
below or in any agreement or instrument that is governed by this Appendix means
such agreement or instrument or statute as from time to time amended, modified
or supplemented, including (in the case of agreements or instruments) by waiver
or consent and (in the case of statutes) by succession of comparable successor
statutes and includes (in the case of agreements or instruments) references to
all attachments thereto and instruments incorporated therein. References to a
Person are also to its permitted successors and assigns.
19
EXHIBIT A
FORM OF NOTE
NON-NEGOTIABLE
FAIRFAX COUNTY, VIRGINIA PROMISSORY NOTE $20,000,000.00
DECEMBER __, 2002
For value received, AL U.S. Development Venture, LLC (the
"Borrower"), promises to pay to Sunrise Assisted Living, Inc. (the "Lender"), so
much of the principal amount of the Loan as is advanced by the Lender to the
Borrower pursuant to the Revolving Credit Agreement referred to below as
provided for in the Revolving Credit Agreement. The Borrower promises to pay
interest on the unpaid principal amount of such Loan on the dates and at the
rate or rates provided for in the Revolving Credit Agreement, subject to
Borrower's right to accrue such payments set forth in the Revolving Credit
Agreement. All such payments of principal and interest shall be made in lawful
money of the United States in immediately available funds at the office of the
Lender, in accordance with the terms and provisions of the Revolving Credit
Agreement.
Advances of the Loan made by the Lender and all repayments of
the principal thereof shall be recorded by the Lender and, if the Lender so
elects in connection with any transfer or enforcement hereof, appropriate
notations to evidence the foregoing information with respect to the Loan shall
be endorsed by the Lender on the schedule attached to and made a part hereof,
provided that the failure of the Lender to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Revolving Credit Agreement.
This Note is referred to in the Revolving Credit Agreement dated
December __, 2002 between the Borrower and Lender. Terms defined in the
Revolving Credit Agreement are used herein with the same meanings. Reference is
made to the Revolving Credit Agreement for provisions for the optional
prepayment hereof and the acceleration of the maturity hereof.
------------------------------------
By:
---------------------------------
By:
--------------------------
Name:
Title:
20
LOAN AND PAYMENTS OF PRINCIPAL
---------------------------------------------------------------------------------------------------
Amount of Type Amount of Principal Notation Made By
Date Loan Repaid
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
21
EXHIBIT B
List of Projects
Sunrise of ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Sunrise of Boulder
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Sunrise of Huntington Beach
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Sunrise of La Jolla
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Sunrise of LaPalma
▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Sunrise of ▇▇▇▇▇▇ Square
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Sunrise of Sacramento
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Sunrise of Seal Beach
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Sunrise of ▇▇▇▇▇▇▇ Road
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Sunrise of Studio City
▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
22
EXHIBIT C
List of Subsidiaries
AL U.S./Bonita Senior Housing, L.P., a California limited partnership
Boulder Assisted Living, L.L.C., a Delaware limited liability company
AL U.S./Huntington Beach Senior Housing, L.P., a California limited partnership
AL U.S./La Jolla Senior Housing, L.P., a California limited partnership
AL U.S./La Palma Senior Housing, L.P., a California limited partnership
Newtown Square Assisted Living, L.L.C., a Delaware limited liability company
AL U.S./Sacramento Senior Housing, L.P., a California limited partnership
AL U.S./Seal Beach Senior Housing, L.P., a California limited partnership
AL U.S./Studio City Senior Housing, L.P., a California limited partnership
Wilmington Assisted Living, L.L.C., a Delaware limited liability company
23