TENTH AMENDMENT TO CREDIT AGREEMENT

EX-10.1 2 exhibit10point1.htm 10TH AMENDMENT TO THE CREDIT AGREEMENT exhibit10point1.htm -- Converted by SEC Publisher, created by BCL Technologies Inc., for SEC Filing

Exhibit 10.1

TENTH AMENDMENT TO CREDIT AGREEMENT

THIS TENTH AMENDMENT TO CREDIT AGREEMENT (this “Agreement”) is dated to be effective as of the 30^thday of December, 2008 (“Effective Date”) by and between BANK OF AMERICA, N.A., a national banking association, in its capacity as administrative agent (the “Administrative Agent”) for the “Lenders” that are parties to the “Credit Agreement” (as defined below; terms defined in the Credit Agreement shall have the same meanings in this Agreement) and in its capacity as Swingline Lender and L/C Issuer; each of the undersigned Lenders; SUNRISE SENIOR LIVING, INC., a Delaware corporation (the “Company”); certain Subsidiaries of the Company party to the Credit Agreement pursuant to Section 2.14 o f the Credit Agreement (together with the Company, collectively the “Borrowers” and each a “Borrower”) and each of the undersigned Guarantors. Hereafter, the Borrowers and the Guarantors are collectively referred to as the “Obligors”; and the Administrative Agent, the Lenders, the Swingline Lender and the L/C Issuer are collectively referred to as the “Credit Parties”, and the Obligors and the Credit Parties are collectively referred to as the “Parties”.

RECITALS

The Obligors are parties with the Credit Parties to a Credit Agreement dated December 2, 2005 as amended by the First Amendment To Credit Agreement dated March 6, 2006, the Second Amendment To Credit Agreement dated January 31, 2007, the Third Amendment To Credit Agreement dated June 27, 2001, the Fourth Amendment To Credit Agreement dated September 17, 2007, the Fifth Amendment To Credit Agreement dated January 31, 2008, the Sixth Amendment To Credit Agreement dated February 19, 2008, the Seventh Amendment To Credit Agreement dated March 13, 2008, the Eight Amendment To Credit Agreement dated July 23, 2008 and the Ninth Amendment (the “Ninth Amendment”) dated to be effective as of October 1, 2008 (collectively, as amended by this Agreement, and as further amended, modified, substituted, extended and renewed from time to time, the “Credit Agreement”).

The Obligors have requested the Credit Parties to modify certain of the provisions of the Credit Agreement.

The undersigned Parties have entered into this Agreement to provide for the requested modifications in accordance with the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the premises, the mutual agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

Section 1. Acknowledgment Of Obligations; Reaffirmation Of Obligations. The Obligors acknowledge that: (a) each of the Loan Documents is the valid and binding obligation of each of the Obligors that is a party thereto; (b) the Loan Documents are enforceable in accordance with all stated terms; and (c) the Obligors have no defenses, claims of offset, or counterclaims against the enforcement of the Loan Documents in accordance with all stated terms. Each Obligor hereby reaffirms and ratifies all of its respective duties and obligations under the Loan Documents to which it is a party.

Section 2. Advances of Loan Proceeds And Issuances of Letters of Credit. The Parties agree that notwithstanding anything to the contrary in the Loan Documents, the Lenders shall have no obligation prior to April 1, 2009 to advance any additional proceeds of the Loans to the Borrowers or to issue any new Letters of Credit for the accounts of any of the Obligors or their Subsidiaries. Thereafter, the obligations of the Lenders under the Credit Agreement to make any advances of proceeds of the

Loans or to issue any new Letters of Credit shall be subject to and conditioned upon the satisfaction in full of each of the following conditions precedent in addition to the satisfaction of all other conditions therefor required by the terms of the Credit Agreement: (a) each request by the Borrowers for any advances of proceeds of the Loans or for the issuance of any new Letters of Credit shall be accompanied by the Company’s written certification to the Credit Parties which shall (i) demonstrate to the satisfaction of the Lenders that no continuing Defaults or Events of Default exist as of the date of request, and (ii) contain computations that demonstrate to the satisfaction of the Lenders the compliance of the Obligors with the covenants contained in Section 7.14 of the Credit Agreement, with such compliance to be measured and tested through and as of the date of each of such requests (as opposed to quarterly); and (b) t he Obligors shall provide additional collateral to secure and support each of such requested advances of proceeds of the Loan or issuances of Letters of Credit that is acceptable in all respects to the Lenders in the sole and absolute discretion of the Lenders. The Obligors acknowledge that the Lenders shall have no obligation to disburse any proceeds of the Loans or to issue any new Letters of Credit during the pendency of any continuing Defaults or Events of Default.

Section 3. Compliance with Section 7.14. The Credit Parties agree that notwithstanding anything to the contrary in the Credit Agreement, for the period commencing and including the Effective Date and ending on March 30, 2009, the Borrower shall not be required to comply with the covenants contained in Section 7.14 of the Credit Agreement. Commencing on March 31, 2009, the Borrower shall comply with each of the covenants contained in Section 7.14, and such compliance shall be measured and tested for compliance on March 31, 2009 for the period ending on March 31, 2009.

Section 4. Amendment And Modification Of Credit Agreement. The Credit Agreement is hereby amended and modified as of the Effective Date as follows:

Section 4.1. Amendment of Definition of “Applicable Rate”. The existing definition of “Applicable Rate” is hereby deleted in its entirety and replaced with the following definition:

“Applicable Rate” means four hundred seventy-five (475) basis points for Eurodollar Rate Loans and three hundred twenty-five (325) basis points for Base Rate Loans.”

Section 4.2. Amendment of Definition of “Base Rate”. The existing definition of “Base Rate” is hereby deleted in its entirety and replaced with the following definition:

“Base Rate” means for any day a fluctuating rate per annum equal to the greatest of: (a) the Federal Funds Rate plus ½ of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate,” or (c) the one-month Eurocurrency Rate plus 1½ %. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other facts, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specific in the public announcement of such change.”

Section 4.3. Additional Defined Terms. The following definitions of “Disposition” or “Dispose” are hereby added to the Credit Agreement:

“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person.”

Section 4.4. Deletion of Section 3.3(d) of Credit Agreement. Subsection (d) of Section 3.3 of the Credit Agreement is hereby deleted.

Section 4.5. Liens. For the period commencing on the Effective Date and ending on April 1, 2009, the following subsection (h) shall be added to Section 8.1 (Liens) of the Credit Agreement:

“(h) Notwithstanding subsections (a) through (e) above and notwithstanding any other provision of this Credit Agreement to the contrary, there shall be: (A) no additional pledges of assets of the Company and its Subsidiaries and no additional consensual Liens against any assets of the Company and its Subsidiaries prior to April 1, 2009, other than any consensual Liens securing the contemplated financings (“Contemplated Financings”) of the properties scheduled on Exhibit 8.1. (f) which consensual Liens may only be Liens against the specific project assets being financed by the Contemplated Financing; and (B) no assignments of management agreements.”

Section 4.6. Indebtedness. For the period commencing on the Effective Date and ending on April 1, 2009, the following subsection (c) shall be added to Section 8.3 (Indebtedness) of the Credit Agreement:

“(c) Notwithstanding subsections (a) and (b) above and notwithstanding any other provision of this Credit Agreement to the contrary, the Company and its Subsidiaries shall not incur any additional Indebtedness for borrowed monies except: (A) Indebtedness existing as of December 30, 2008 may have its maturities extended or such existing Indebtedness may be refinanced if any such refinancing does not materially increase the principal amount of such existing Indebtedness; (B) unsecured Indebtedness for borrowed monies that is (i) subordinated in right of payment to the repayment of the Obligations in accordance with written agreements acceptable to the Administrative Agent, and (ii) does not exceed Five Million Dollars ($5,000,000.00) in aggregate amount; and (C) the Contemplated Financings, as scheduled on Exhibit 8.1(f) . Neither the Company nor any of its Subsidiaries sha ll enter into any guarantys after the Effective Date other than guarantys provided solely in connection with the financing of the Burlingame transaction (as scheduled as a Contemplated Financing on Exhibit 8.1(f)) .

Section 4.7. Dispositions. For the period commencing on the Effective Date and ending on April 1, 2009, the following subsection (i) shall be added to Section 8.5 (Dispositions) of the Credit Agreement:

“(i) Notwithstanding subsections (a) through (h) above and notwithstanding any other provision of this Credit Agreement to the contrary, there shall be no Dispositions of real estate, improvements or material assets other than the contemplated sales transactions (“Contemplated Sales Transactions”) of the properties scheduled on Exhibit 8.5. (i), provided that: (A) each Contemplated Sales Transaction shall be for fair market value, (B) each Contemplated Sales Transaction shall be on “arms-length” terms with independent third parties which are not affiliated with the Borrower or any of its Subsidiaries, (C) the aggregate net sales proceeds for the Contemplated Sales Transactions shall not exceed Twenty Million Dollars ($20,000,000.00) (which amount shall include the net sales proceeds that have been received or which may be received by the Obligors from the sales of item 1 and item 5 under the heading “Operating

Communities” and item 11 under the heading “Land/Shut Down Communities” of Exhibit 8.5(i) in the approximate aggregate amount of Eight Million Dollars ($8,000,000.00)), and (D) no Contemplated Sales Transaction shall cause a violation of any of the provisions in this Section 8.5 other than Section 8.5(g)(ii) .”

Section 4.9. Cross-Defaults. The following shall be added to the end of Section 9.1. (e) (Cross-Default) of the Credit Agreement:

“ . . . for the period commencing on December 30, 2008 and ending on March 30, 2009, and notwithstanding anything herein to the contrary, to the extent that either (A) any events of default occur under any of the facilities scheduled on Exhibit 9.1. (e) as a result of a cross-default provision or other provision that relates back solely to this Agreement or as a result of non-compliance with a financial covenant or (B) any events of default occur under a credit facility primarily secured by property or improvements not located in North America, any such event of default will not trigger the cross-default provisions of this Section 9.1. (e) unless the applicable creditor commences exercising its default remedies, at which time the provisions of Section 9.1(e) shall control and apply and the Credit Parties shall have all rights and remedies as a result thereof provided by the terms of this Agreement.”

Section 5. Amendment And Modification Of Ninth Amendment. Section 7 of the Ninth Amendment is hereby deleted in its entirety.

Section 6. Principal Repayments. The Company shall make the following principal repayments upon the Loans: (a) Four Hundred Thousand Dollars ($400,000.00) in aggregate amount shall be paid by the Company to the Administrative Agent for the ratable benefit of the Lenders upon the execution and delivery of this Agreement by the Administrative Agent and the Required Lenders; and (b) One Million One Hundred Thousand Dollars ($1,100,000.00) shall be paid by the Company to the Administrative Agent for the ratable benefit of the Lenders on or before January 23, 2009. The failure of the Company to pay such One Million One Hundred Thousand Dollars ($1,100,000.00) principal payment on or before January 23, 2009 shall co nstitute an immediate Event of Default under the Credit Agreement without any further notice or demand from the Credit Parties.

Section 7. Modification Fee. Upon the execution and delivery of this Agreement by the Company, the Administrative Agent and the Required Lenders, the Company shall pay for the accounts of the Lenders that execute this Agreement, a modification fee in the aggregate amount of Four Hundred Thousand Dollars ($400,000.00) which shall be pro rated between such Lenders in accordance with their respective Applicable Percentages.

Section 8. Obligors’ Representations And Warranties. As an inducement to the Credit Parties to enter into this Agreement and to agree to the requested waiver and to the modifications provided for herein, each of the Obligors makes the following representations and warranties to the Credit Parties and acknowledges the justifiable reliance of the Credit Parties thereon:

Section 8.1. Authority And Good Standing. Each Obligor: (a) has the power to enter into this Agreement and any related documents and to perform all of its obligations hereunder and thereunder; (b) has duly authorized the entry into and performance of this Agreement and all related documents; and (c) is in good standing in the state of its organization and is qualified to do business and is in good standing in all other states in which it transacts business.

Section 8.2. No Violations. The execution, delivery, and performance of this Agreement by the Obligors will not immediately, or with the passage of time, the giving of notice, or both: (a) violate any laws or result in a default under any contract, agreement, or instrument to which any Obligor is a party or by which any Obligor or any properties of any Obligor are bound; or (b) result in the creation or imposition of any security interest in, or lien or encumbrance upon, any of the assets of the Obligors.

Section 8.3. Accuracy Of Information. All information and data submitted by or on behalf of the Obligors in connection with this Agreement and the transactions contemplated herein, is true, accurate and complete in all material respects as of the date made and contains no knowingly false, incomplete or misleading statements.

Section 8.4. Pending Proceedings. There are no actions, suits or proceedings pending against any of the Obligors, the adverse determination of which would be likely to have a Material Adverse Effect other than the proceedings itemized on Schedule 8.4 attached hereto.

Section 8.5. Judgments. No judgments have been entered against any of the Obligors which when aggregated with all judgments against all Obligors exceed the Threshold Amount.

Section 8.6. Events of Default. The Obligors have no actual knowledge of any continuing events of default (other than of financial covenant defaults) under any credit facilities which as of the Effective Date would result in a cross-default under Section 9.1(e) of the Credit Agreement other than matters disclosed by the Obligors in writing to the Lenders.

Section 9. No Other Modifications Of Loan Documents. The Obligors acknowledge that except as specifically stated in this Agreement, the Loan Documents shall not be deemed to have been amended, modified or changed in any respect, and shall continue to be enforceable against the parties thereto in accordance with all stated terms.

Section 10. Further Assurances. Each Obligor agrees to execute and deliver to the Administrative Agent such other and further documents as may, from time to time, be reasonably requested by the Administrative Agent in order to execute or enforce the terms and conditions of this Agreement or any of the Loan Documents. Without limitation to the foregoing, each of the Obligors shall take such actions as are necessary to compel each of the “Loan Parties” to the Security Agreement dated March 13, 2008 (“Security Agreement”) to provide such information, execute such documents, and to provide the Administrative Agent for itself and the Lenders with perfected and continuing security interests and p ledges into the “Collateral” (as defined in the Security Agreement). The Obligors shall promptly provide the Administrative Agent with such information concerning the Collateral as may be requested by the Administrative Agent from time to time.

Section 11. No Novation; No Refinance. It is the intent of each of the parties that nothing contained in this Agreement shall be deemed to effect or accomplish or otherwise constitute a novation of any of the agreements between the parties or of any of the obligations owed by any of the Obligors to the Credit Parties or to be a refinance of any of the Obligations. Except as expressly provided for in this Agreement, nothing contained herein shall be deemed to extinguish, terminate or impair any of the duties or obligations owed by any of the Obligors to the Credit Parties. Each of the Obligors reaffirms and ratifies all Liens previously granted by it to the Credit Parties in accordance with the Loan Documents.< /font>

Section 12. Waiver. No failure or delay by the Credit Parties in the exercise or enforcement of any of their rights under any Loan Document shall be a waiver of such right or remedy nor shall a

single or partial exercise or enforcement thereof preclude any other or further exercise or enforcement thereof or the exercise or enforcement of any other right or remedy. The Credit Parties may at any time or from time to time waive all or any rights under this Agreement or any of the Loan Documents, but any such waiver must be specific and in writing and no such waiver, shall constitute, unless specifically so expressed by the Administrative Agent on behalf of the Credit Parties in writing, a future waiver of performance or exact performance by the Obligors. No notice to or demand upon any Obligor in any instance shall entitle any Obligor to any other or further notice or demand in the same, similar or other circumstance.

Section 13. Obligations Unconditional. The obligations of the Obligors set forth in this Agreement and as required by the terms of the Loan Documents are absolute and unconditional, and are independent of any defense or rights of set-off, recoupment or counterclaim which any of the Obligors might have or ever had against any of the Credit Parties. Each of the Obligors agrees that all payments required hereunder and/or by the Loan Documents shall be made free of any deductions and without abatement, diminution or set-off.

Section 14. Reimbursement Of Expenses Of Administrative Agent. The Obligors agree to reimburse to the Administrative Agent promptly upon receipt of an invoice therefor, all reasonable expenses incurred by the Administrative Agent in connection with the negotiation and preparation of this Agreement and all other expenses incurred by the Administrative Agent as of that date in connection with the consummation of the transactions and matters described herein and as otherwise incurred by the Administrative Agent in the administration of the Loans, including without limitation all reasonable attorneys’ fees and reasonable consultant’s fees incurred by the Administrative Agent. Thereafter, the Obligors sha ll promptly reimburse the Administrative Agent upon the request of the Administrative Agent for all reasonable expenses incurred by the Administrative Agent in connection with the administration of the Loans and the Loan Documents.

Section 15. Enforceability. This Agreement shall inure to the benefit of and be enforceable against each of the parties and their respective successors and assigns.

Section 16. Time. Time is of the essence of this Agreement.

Section 17. Choice Of Law; Consent To Jurisdiction; Agreement As To Venue. This Agreement shall be construed, performed and enforced and its validity and enforceability determined in accordance with the Laws of the Commonwealth of Virginia (excluding, however, conflict of laws principles). Each of the Parties consents to the non-exclusive jurisdiction of the courts of the Commonwealth of Virginia sitting in Fairfax County and of the United States District Court for the Eastern District of Virginia, if a basis for federal jurisdiction exists. Each of the Parties waives any right to object to the maintenance of a suit in either of such courts on the basis of improper venue or inconvenience of forum.

Section 18. RELEASE. IN ORDER TO INDUCE THE CREDIT PARTIES TO ENTER INTO THIS AGREEMENT, EACH OF THE OBLIGORS FOREVER RELEASES AND DISCHARGES EACH OF THE CREDIT PARTIES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS, AND AGENTS (COLLECTIVELY, THE “RELEASED PARTIES”) FROM ANY AND ALL CLAIMS, CAUSES OF ACTION, SUITS AND DAMAGES (INCLUDING CLAIMS FOR ATTORNEYS’ FEES AND COSTS) WHICH ANY OF THE OBLIGORS, JOINTLY OR SEVERALLY, EVER HAD OR MAY NOW HAVE AGAINST ANY OF THE RELEASED PARTIES FOR ANY CLAIMS ARISING OUT OF OR RELATED IN ANY WAY TO THE OBLIGATIONS, THE LOAN DOCUMENTS, THIS AGREEMENT OR

THE ADMINISTRATION THEREOF, WHETHER KNOWN OR UNKNOWN, INCLUDING BUT NOT LIMITED TO ANY AND ALL CLAIMS BASED UPON OR RELYING ON ANY ALLEGATIONS OR ASSERTIONS OF DURESS, ILLEGALITY, UNCONSCIONABILITY, BAD FAITH, BREACH OF CONTRACT, REGULATORY VIOLATIONS, NEGLIGENCE, MISCONDUCT, OR ANY OTHER TORT, CONTRACT OR REGULATORY CLAIM OF ANY KIND OR NATURE. THIS RELEASE IS INTENDED TO BE FINAL AND IRREVOCABLE AND IS NOT SUBJECT TO THE SATISFACTION OF ANY CONDITIONS OF ANY KIND.

Section 19. Waiver Of Jury Trial. Each of the Parties agrees that any suit, action, or proceeding, whether claim or counterclaim, brought or instituted by it or by any of its successors or assigns, on or with respect to this Agreement, the Obligations (or the administration thereof), or any of the other Loan Documents, or which in any way, directly or indirectly relates thereto, shall be tried by a court and not by a jury. EACH OF THE PARTIES TO THIS AGREEMENT EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION, OR PROCEEDING.

Section 20. Counterparts And Delivery. This Agreement may be executed and delivered in counterparts, and shall be fully enforceable against each signatory that executes this Agreement, even if all indicated signatories do not actually execute this Agreement. This Agreement, and the signatures to this Agreement, may be delivered by electronic transmission.

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