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EXHIBIT 10.31.1
AMENDED, RESTATED, CONSOLIDATED
AND INCREASED MASTER PROMISSORY NOTE
THIS AMENDED, RESTATED, CONSOLIDATED AND INCREASED MASTER PROMISSORY
NOTE is made this 23rd, day of December, 1997, by SUNRISE EAST ASSISTED LIVING
LIMITED PARTNERSHIP, a limited partnership organized and existing under the
laws of the Commonwealth of Virginia (the "Borrower") and NATIONSBANK, N.A. as
agent (the "Agent") for itself and for certain additional lenders (collectively
with the Agent, the "Lenders") who are participating in a bank group pursuant
to an Amended and Restated Agency Agreement of even date herewith (as amended,
restated or substituted from time to time, the "Agency Agreement").
RECITALS
A. 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 as hereinafter
described. The assisted or independent living facilities for which Facility
Loans were obtained is
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referred to herein by its location and word "Facility."
C. The Borrower obtained a construction/interim loan for the
Franconia Facility evidenced by a Note dated June 13, 1996 in the maximum
principal sum of $7,940,400 (the "Franconia Note") which is secured by, among
other things a Credit Line Deed of Trust, Assignment and Security Agreement
also dated June 13, 1996 (the "Franconia Deed of Trust") in favor of trustees
designated by the Agent and recorded in the Land Records of Fairfax County,
Virginia in Deed Book 9749, Page 1562. A principal balance of $100,000 remains
outstanding under the Franconia Note.
D. The Borrower obtained a construction/interim loan for the
Granite Run Facility evidenced by a Note dated June 13, 1996 in the maximum
principal sum of $7,688,000 (the "Granite Run Note") which is secured by, among
other things an Open-End Mortgage, Assignment and Security Agreement also dated
June 13, 1996 (the "Granite Run Deed of Trust") and recorded in the Land
Records of Delaware County, Pennsylvania in Volume 1500, Page 1704 and
re-recorded in Volume 1526, Page 977. A principal balance of $100,000 remains
outstanding under the Granite Run Note.
E. The Borrower obtained a construction/interim loan for the
Abington Assisted Living Facility evidenced by a Note dated June 13, 1996 in
the maximum principal sum of $8,995,000 (the "Abington Assisted Note") which is
secured by, among other things an Open-End Mortgage, Assignment and Security
Agreement also dated June 13, 1996 (the "Abington Deed of Trust") and recorded
in the Land Records of Montgomery County, Pennsylvania in Deed Book 7783, Page
849. A principal balance of $100,000 remains outstanding under the Abington
Assisted Note.
F. The Borrower obtained a construction/interim loan for the
Abington Independent Living Facility evidenced by a Note dated June 13, 1996 in
the maximum principal sum of $4,430,000 (the "Abington Independent Note") which
is also secured by, among other things the Abington Deed of Trust. A principal
balance of $100,000 remains outstanding under the Abington Independent Note.
The Loans evidenced by the Abington Assisted Note and the Abington Independent
Note are treated as one Loan.
G. The Borrower obtained a construction/interim loan for the
Morris Plains Facility evidenced by a Note dated September 5, 1996 in the
maximum principal sum of $7,993,000 (the "Morris Plains Note") which is secured
by, among other things a Mortgage, Assignment and Security Agreement also dated
September 5, 1996 (the "Morris Plains Deed of Trust") and recorded in the Land
Records of Morris County, New Jersey in Deed Book 6632, Page 58. A principal
balance of $100,000 remains outstanding under the Morris Plains Note.
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H. The Borrower obtained a construction/interim loan for the
Wayne Facility evidenced by a Note dated September 5, 1996 in the maximum
principal sum of $8,020,000 (the "Wayne Note") which is secured by, among other
things a Mortgage, Assignment and Security Agreement also dated September 5,
1996 (the "Wayne Deed of Trust") and recorded in the Land Records of Passaic
County, New Jersey in Mortgage Book 0-164, Page 17. A principal balance of
$100,000 remains outstanding under the Wayne Note.
I. The Borrower obtained a loan for the Old Tappan Facility
evidenced by a Note dated September 5, 1996 in the maximum principal sum of
$8,300,000 (the "Old Tappan Note") which is secured by, among other things a
Mortgage, Assignment and Security Agreement also dated September 5, 1996 (the
"Old Tappan Deed of Trust") and recorded in the Land Records of Bergen County,
New Jersey in Mortgage Book 9272, Page 700. A principal balance of $100,000
remains outstanding under the Old Tappan Note.
J. The Borrower obtained a loan for the Westfield Facility
evidenced by a Note dated May 12, 1997 in the maximum principal sum of
$8,388,000 (the "Westfield Note") which is secured by, among other things a
Mortgage, Assignment and Security Agreement also dated May 12, 1997 (the
"Westfield Deed of Trust") and recorded in the Land Records of Union County,
New Jersey in Deed Book 6259, Page 141. A principal balance of $100,000
remains outstanding under the Westfield Note.
K. 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 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").
L. The Borrower and the Lenders have agreed to (1) the
consolidation of the indebtedness evidenced by the Facility Notes with the
Master Note which will continue to be secured by, among other things, the
Franconia Deed of Trust, the Granite Run Deed of Trust, the Abington Deed of
Trust, the Morris Plains Deed of
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Trust, the Wayne Deed of Trust, the Old Tappan Deed of Trust and the Westfield
Deed of Trust, (collectively, the "Existing Deeds of Trust") and (2)
modification of the terms or repayment of the indebtedness evidenced by the
Master Note and the Facility Notes.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Agent and the Borrower covenant and agree as follows:
1. The above Recitals are incorporated herein by reference.
2. The Facility Notes are hereby consolidated with the Master
Note and the Master Note is hereby amended and restated in its entirety as
follows:
$250,000,000 December 23, 1997
FOR VALUE RECEIVED, SUNRISE EAST ASSISTED LIVING LIMITED PARTNERSHIP,
a Virginia limited partnership (the "Borrower"), promises to pay to the order
of NATIONSBANK, N.A., its successors and assigns (the "Agent") as agent for
itself and the other lenders who are or shall be from time to time
participating as lenders (collectively with the Agent, the "Lenders") hereunder
pursuant to the Amended and Restated Agency Agreement of even date herewith (as
amended, restated or substituted from time to time the "Agency Agreement"), the
maximum principal sum of TWO HUNDRED FIFTY MILLION AND NO/100 DOLLARS
($250,000,000) (the "Principal Sum") or such greater amount as the Lenders may
from time commit to lend pursuant hereto and to the Agency Agreement, or so
much thereof as may be advanced or readvanced to or for the account of the
Borrower pursuant to the terms and conditions of the Financing Agreement (as
hereinafter defined) and the Construction Agreement (as hereinafter defined),
together with interest thereon at the rate or rates hereinafter provided. All
defined terms not otherwise defined herein shall have the meaning set forth in
the Financing Agreement or the Construction Agreement.
1. Interest. Interest on portions of the outstanding Principal
Sum shall accrue and be payable for periods of thirty (30) days each or periods
of seven (7) days each (each a "Eurodollar Period") at a fixed rate equal to
the Eurodollar Rate (as defined in the Financing Agreement), which rate shall
be
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adjusted for any Federal Reserve Board reserve requirements imposed upon the
Agent or any of the Lenders from time to time plus that certain number of basis
points per annum applicable pursuant to the conditions set forth below. The
Eurodollar Rate determined pursuant to the preceding sentence shall be in
effect to the end of the applicable Eurodollar Period. Interest payable
hereunder shall also be subject to the conditions set forth in Section 2.4 of
the Financing Agreement.
No more than six (6) different Eurodollar Periods may be in effect at any one
time provided that not more than one (1) Eurodollar Period may be a seven day
Eurodollar Period. Interest shall be computed for the actual number of days
which have elapsed from the date of each advance of a portion of the Principal
Sum calculated on the basis of a 365-day year.
PRE-CONDITIONS RATE
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(a) if the aggregate Asset Value Eurodollar Rate
(as defined in the Financing plus 150 basis
Agreement) of the Facilities points
on which liens are granted in
in favor of the Lenders as
Optional Collateral (if any)
is less than $50,000,000, the
rate shall be as follows.
(b) If the aggregate Asset Value Eurodollar Rate
of the Facilities on which plus 125 basis
liens are granted in favor of points
the Lenders as Optional
Collateral is greater than or
equal to $50,000,000 but less
than $100,000,000, the rate
shall be as follows:
(c) If the aggregate Asset Value Eurodollar Rate
of the Facilities on which plus 100 basis
liens are granted in favor of points
the Lenders as Optional
Collateral is equal to or
greater than $100,000,000,
the rate shall be as follows:
2. Payments and Maturity. (a) Interest only on the outstanding
principal balance of the Loan shall be due and payable on the fifteenth (15th)
day of the first (1st) month following the Credit Facility Closing (as
hereinafter defined) and on the fifteenth (15th) day of each and every month
thereafter for a total of thirty-six (36) consecutive months unless otherwise
extended pursuant to the terms of the Financing
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Agreement; and
(b) Principal sums repaid prior to the Maturity Date may
be reborrowed pursuant to the terms of the Financing Documents.
(c) The outstanding principal balance of the Loan and all
accrued and unpaid interest thereon shall be due and owing at the Maturity
Date.
(d) The Loan shall mature and the entire principal
balance of the Loan, together with all accrued and unpaid interest thereon,
shall be due and payable on the date (the "Maturity Date") referred to in the
Financing Agreement as the Revolving Credit Termination Date.
The fact that the balance hereunder may be reduced to zero from time
to time pursuant to the Financing Agreement will not affect the continuing
validity of this Note or the Financing Agreement, and the balance may be
increased to the Principal Sum after any such reduction to zero.
3. Default Interest. Upon the occurrence of an Event of Default
(as hereinafter defined), the unpaid Principal Sum shall bear interest
thereafter until such Event of Default is cured at a rate which is at all times
equal to three percent (3%) per annum in excess of the rate or rates of
interest otherwise payable hereunder.
4. Late Charges. In the event that any payment due hereunder is
not received by the Agent within fifteen (15) days of the date such payment is
due (inclusive of the date when due), the Borrower shall pay to the Agent on
demand a late charge equal to four percent (4%) of such payment.
5. Application and Place of Payments. Unless an Event of Default
(as hereinafter defined) has occurred, all payments made on account of this
Note, including prepayments, shall be applied first to the payment of any
prepayment penalty due under Section 4.5 of the Financing Agreement, second to
any late charge then due hereunder, third to the payment of accrued and unpaid
interest then due hereunder, and the remainder, if any, shall be applied to the
unpaid Principal Sum. The application of payments after an Event of Default
shall be determined by the Agent. All payments on account of this Note shall
be paid in lawful money of the United States of America in immediately
available funds during regular business hours of the Agent at its principal
office in Baltimore, Maryland or at such other times and places as the Agent
may at any time and from time to time designate in writing to the Borrower.
Any payment received after 1:00 p.m. (Baltimore Time) shall be deemed to have
been received on the
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next Banking Day.
6. Prepayment. The Borrower shall have the right to prepay the
Principal Sum in full or in part, at any time and from time to time in
accordance with Section 4.5 of the Financing Agreement. Sums repaid may be
reborrowed.
7. Financing Agreement and Other Financing Documents. This Note
is the Note described in the Amended and Restated Financing and Security
Agreement of even date herewith executed by and between the Borrower and the
Agent (as amended or otherwise modified from time to time, the "Financing
Agreement"). The term "Financing Documents" as used in this Note shall mean
collectively this Note, the Financing Agreement, the Master Construction Loan
Agreement of even date herewith (the "Construction Agreement"), the Amended and
Restated Master Guaranty of Payment Agreement of even date herewith, the Master
Guaranty of Performance of even date herewith, the Existing Deeds of Trust, any
other Deeds of Trust (as defined in the Construction Agreement), the Security
Documents (as defined in the Financing Agreement) and any other instrument,
agreement, or document previously, simultaneously, or hereafter executed and
delivered by the Borrower and/or any other person, singularly or jointly with
any other person, evidencing, securing, guaranteeing, or in connection with the
Credit Facility or the Loan.
8. Security. This Note is secured by, among other things,
certain deeds of trust or mortgages (each as amended, restated or substituted
from time to time, a "Deed of Trust" collectively, the "Deeds of Trust"),
covering that real estate owned by the Borrower or one or more of the
Borrower's subsidiaries and the improvements thereon more particularly
described in the Deeds of Trust identified on any Borrowing Base Report or
listing of Optional Collateral and all other property, real and personal, more
particularly described in the Existing Deeds of Trust or any other Deeds of
Trust (collectively, the "Property").
9. Events of Default. The occurrence of any one or more of the
following events shall constitute an event of default (individually, an "Event
of Default" and collectively, the "Events of Default") under the terms of this
Note:
(a) The failure of the Borrower to pay to the Agent when
due any and all amounts payable by the Borrower to the Lenders under the terms
hereunder and such failure continues for five (5) calendar days after notice
thereof by the Agent, except with regard to payment of amounts due at maturity
for which no notice or cure period shall be required to be given and except for
a Borrowing Base Deficiency (as defined in the Financing Agreement) which shall
be payable as provided in the Financing Agreement; or
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(b) The occurrence of a Default or an Event of Default
(as those terms are defined in the Financing Agreement) under the terms and
conditions of any of the other Financing Documents, which Default or Event of
Default remains uncured beyond any applicable grace and/or cure period provided
therefor.
10. Remedies. Upon the occurrence of an Event of Default, at the
option of the Lenders, all amounts payable by the Borrower to the Lenders under
the terms hereof shall immediately become due and payable by the Borrower to
the Lenders without notice to the Borrower or any other person, and the Lenders
shall have all of the rights, powers, and remedies available under the terms of
this Note, any of the other Financing Documents and all applicable laws. The
Borrower and all endorsers, guarantors, and other parties who may now or in the
future be primarily or secondarily liable for the payment of the indebtedness
under the Loan hereby severally waive presentment, protest and demand, notice
of protest, notice of demand and of dishonor and non-payment of this Note and
expressly agree that this Note or any payment hereunder may be extended from
time to time without in any way affecting the liability of the Borrower,
guarantors and endorsers. The Borrower and all endorsers, guarantors, and
other parties who may now or in the future be liable for payment of the
Obligations hereby acknowledge that all advances under the Loan will be made
under and will be evidenced by this Note.
11. 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 Note 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 Note 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.
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(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 Note shall
be deemed to (i) limit the applicability of any otherwise applicable statutes
of limitation or repose and any waivers contained in this Note; or (ii) be a
waiver by Agent 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 the Agent or
the Lenders (A) to exercise self help remedies such as (but 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 Agent
or 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 Note.
At the Agent's 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 Agent or the Lenders
exercise such self help remedies or other actions, the Borrower has not waived
any of its rights to seek legal or equitable relief to defend against the
Agent's or the 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
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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 public accountants,
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 Note.
12. Consent to Jurisdiction. The Borrower 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 Note. The Borrower irrevocably waives, to the fullest extent permitted by
law, any objection that the Borrower may now or hereafter have to the 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 Borrower and may be enforced in any court in which the Borrower is
subject to jurisdiction by a suit upon such judgment provided that service of
process is effected upon the Borrower as provided in this Note or as otherwise
permitted by applicable law.
13. Service of Process. (a) The Borrower hereby irrevocably
designates and appoints Wayne G. Tatusko, Esquire of Watt, Tieder & Hoffar,
7929 Westpark Drive, McLean, Virginia 22102, as the Borrower's authorized agent
to accept and acknowledge on the Borrower's behalf service of any and all
process that may be served in any suit, action, or proceeding instituted in
connection with this Note in any state or federal court sitting in the
Commonwealth of Virginia. If such agent shall cease so to act, the Borrower
shall irrevocably designate and appoint without delay another such agent in the
Commonwealth of Virginia satisfactory to the Lenders and shall promptly deliver
to the Agent evidence in writing of such agent's acceptance of such appointment
and its agreement that such appointment shall be irrevocable.
(b) The Borrower hereby consents to process being served
in any suit, action, or proceeding instituted in connection with this Note by
(i) the mailing of a copy thereof by certified mail, postage prepaid, return
receipt requested, to the Borrower and (ii) serving a copy thereof upon the
agent hereinabove designated and appointed by the Borrower as the Borrower's
agent for service of process. The Borrower irrevocably agrees that such
service shall be deemed to be service of process upon the Borrower in any such
suit, action, or proceeding. Nothing in this Note shall affect the right of
the Lenders to serve process in any manner otherwise permitted by law and
nothing in this Note
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will limit the right of the Lenders otherwise to bring proceedings against the
Borrower in the courts of any jurisdiction or jurisdictions.
14. WAIVER OF TRIAL BY JURY. THE BORROWER AND THE LENDERS HEREBY
WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING NOT REQUIRED TO BE ARBITRATED
PURSUANT TO THE TERMS HEREOF TO WHICH THE BORROWER AND THE LENDERS, OR ANY OF
THEM, MAY BE PARTIES, ARISING OUT OF OR IN ANY WAY PERTAINING TO (A) THIS NOTE,
(B) THE OTHER FINANCING DOCUMENTS OR (C) ANY OF THE PROPERTY. IT IS AGREED AND
UNDERSTOOD THAT 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 NOTE. THIS WAIVER IS KNOWINGLY, WILLINGLY
AND VOLUNTARILY MADE BY THE BORROWER, AND THE BORROWER HEREBY REPRESENTS 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 BORROWER FURTHER REPRESENTS THAT IT HAS BEEN REPRESENTED IN THE
SIGNING OF THIS NOTE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL
COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO
DISCUSS THIS WAIVER WITH COUNSEL.
15. Expenses. The Borrower promises to pay to the Agent on demand
by the Agent all costs and expenses incurred by the Lenders in connection with
the collection and enforcement of this Note, including, without limitation, all
reasonable attorneys' fees and expenses and all court costs.
16. Notices. Any notice, request, or demand to or upon the
Borrower or the Lenders shall be deemed to have been properly given or made
when delivered in accordance with Section 11.1 of the Financing Agreement.
17. Miscellaneous. Each right, power, and remedy of the Lenders
as provided for in this Note or any of the other Financing Documents, or now or
hereafter existing under any applicable law or otherwise shall be cumulative
and concurrent and shall be in addition to every other right, power, or remedy
provided for in this Note or any of the other Financing Documents or now or
hereafter existing under any applicable law, and the exercise or beginning of
the exercise by the Lenders of any one or more of such rights, powers, or
remedies shall not preclude the simultaneous or later exercise by the Lenders
of any or all such other rights, powers, or remedies. No failure or delay by
the Lenders to insist upon the strict performance of any term, condition,
covenant, or agreement of this Note or any of the other Financing Documents, or
to exercise any right, power, or remedy consequent upon a breach thereof, shall
constitute a waiver of any such term, condition, covenant, or agreement or of
any such breach, or preclude the Lenders from exercising any such
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right, power, or remedy at a later time or times. By accepting payment after
the due date of any amount payable hereunder, the Lenders shall not be deemed
to waive the right either to require prompt payment when due of all other
amounts payable under the terms hereof or to declare an Event of Default for
the failure to effect such prompt payment of any such other amount. No course
of dealing or conduct shall be effective to amend, modify, waive, release, or
change any provisions of this Note.
18. Partial Invalidity. In the event any provision of this Note
(or any part of any provision) is held by a court of competent jurisdiction to
be invalid, illegal, or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other provision (or
remaining part of the affected provision) of this Note; but this Note shall be
construed as if such invalid, illegal, or unenforceable provision (or part
thereof) had not been contained in this Note, but only to the extent it is
invalid, illegal, or unenforceable.
19. Captions. The captions herein set forth are for convenience
only and shall not be deemed to define, limit, or describe the scope or intent
of this Note.
20. Governing Law. The provisions of this Note shall be
construed, interpreted and enforced in accordance with the laws of the
Commonwealth of Virginia as the same may be in effect from time to time.
3. It is expressly understood and agreed that the indebtedness
evidenced by the Master Note and the Facility Notes has not been extinguished
or discharged hereby and is consolidated herein. The Borrower and/or the Agent
agree that the execution of this Note is not intended and shall not cause or
result in a novation with regard to the Master Note or the Notes.
4. This Note may be executed in one or more counterparts each of
which shall constitute an original for all purposes; provided, however, that
all such counterparts shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, the Borrower and the Agent have caused this
Amended, Restated, Consolidated and Increased Master Promissory Note to be
executed, under seal, by their duly authorized representatives, as of the date
first written above.
WITNESS OR ATTEST: SUNRISE EAST ASSISTED LIVING LIMITED
PARTNERSHIP,
a Virginia limited partnership
By: Sunrise Assisted Living
Investments, Inc., general partner
/s/ Wayne G. Tatusko By:/s/ James S. Pope (SEAL)
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James S. Pope
Vice President
WITNESS: NATIONSBANK, N.A., as Agent for itself
and the Other Lenders
/s/ Wayne G. Tatusko By: /s/ Robert J. Montanari (SEAL)
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Robert J. Montanari
Vice President
STATE/COMMONWEALTH OF VIRGINIA,
CITY/COUNTY OF Fairfax, TO WIT:
I, Dawn A. Washington , a Notary Public in and for the jurisdiction
aforesaid, do hereby certify that James S. Pope as Vice President of Sunrise
Assisted Living Investments, Inc., a Virginia corporation, the general partner
of Sunrise East Assisted Living Limited Partnership, a Virginia limited
partnership, who executed the foregoing instrument, personally appeared before
me and acknowledged said Instrument to be his act and deed that he executed
said Instrument for the purposes therein contained.
WITNESS my hand and Notarial Seal.
/s/ Dawn A. Washington
--------------------------
Notary Public
My Commission Expires:
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STATE/COMMONWEALTH OF VIRGINIA,
CITY/COUNTY OF Fairfax, TO WIT:
I, Dawn A. Washington, a Notary Public in and for the jurisdiction
aforesaid, do hereby certify that Robert J. Montanari, a Vice President of
NationsBank, N.A., who executed the foregoing instrument, personally appeared
before me and acknowledged said Instrument to be his act and deed that he
executed said Instrument for the purposes therein contained.
WITNESS my hand and Notarial Seal.
/s/ Dawn A. Washington
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Notary Public
My Commission Expires:
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