Exhibit 10.1
ELEVENTH AMENDMENT TO CREDIT
AGREEMENT
THIS ELEVENTH AMENDMENT TO CREDIT AGREEMENT
(this “Agreement”) is dated to be effective as of the
20 th day of March, 2009 (“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 of 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 Eighth
Amendment To Credit Agreement dated July 23, 2008 (the
“Eighth Amendment”), the Ninth Amendment To Credit
Agreement dated to be effective as of October 1, 2008 and the Tenth
Amendment To Credit Agreement dated to be effective as of December
30, 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 executed and delivered a Security
Agreement dated March 13, 2008 (“Security Agreement”)
for the benefit of the Credit Parties pursuant to which the
Obligors granted to the Credit Parties as security for the
“Obligations”, as such term is defined in the Security
Agreement, a continuing security interest in the
“Collateral”, as such term is defined in the Security
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 and to provide the
Parties with an additional period of time to negotiate the terms of
a Twelfth Amendment to the Credit Agreement (“Twelfth
Amendment”) with the desired objective of reaching mutual
agreement to the terms of such Twelfth Amendment that would
comprehensively address any remaining issues between the Parties
with respect to the Credit Agreement through the Credit
Agreement’s current stated Maturity Date of December 2, 2009
and the obtaining of the execution and delivery by all necessary
Parties of such Twelfth Amendment prior to the close of business on
April 30, 2009.
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 and the L/C Issuer shall have no obligation prior to May 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 and the L/C Issuer under the Credit
Agreement during the Availability Period 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 being tested quarterly as may
otherwise be required by the terms of the Credit Agreement); and
(b) the Obligors shall provide additional collateral to secure and
support each of such requested advances of proceeds of the Loans 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 and the L/C Issuer 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. The Credit Parties agree
to renew the existing Letters of Credit which are scheduled on
Schedule 2 attached to this Agreement in accordance with the stated
annual renewal provisions thereof, provided that the expiry dates
of any of such Letters of Credit as renewed will not be extended
for more than one year beyond the existing expiry dates.
Section
3.
Compliance with Section
7.14 . The Credit Parties
acknowledge and agree that notwithstanding anything to the contrary
in the Credit Agreement, for the period commencing on December 30,
2008 and ending on April 29, 2009, the Borrower shall not be
required to comply with the covenants contained in Section 7.14 of
the Credit Agreement. Commencing on April 30, 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
May 1, 2009 for the period ending on April 30, 2009 (as opposed to
being tested quarterly as may otherwise be required by the terms of
the Credit Agreement).
Section
4.
Aggregate Commitments.
The maximum permitted amount of
Aggregate Commitments is hereby permanently reduced from the
present maximum permitted amount of One Hundred Sixty Million
Dollars ($160,000,000) (as established by the Eighth Amendment) to
that amount that is equal to the Total Outstandings measured as of
the Effective Date. Thereafter, the maximum permitted amount of
Aggregate Commitments shall be permanently reduced from time to
time by any amounts paid to the Agent for the accounts of the
Lenders from the net cash proceeds of Approved
Dispositions or from the cash proceeds of
“Federal Refunds”, as such term is defined below in
Section 7 of this Agreement. The respective Applicable Percentages
and Commitments of the Lenders shall be permanently reduced on the
Effective Date and on each other date of a permanent reduction to
the Aggregate Commitments on a pro rata basis to reflect
proportionately among the Lenders each permanent reduction in the
maximum permitted amount of Aggregate Commitments.
Section
5.
Amendment And Modification Of
Credit Agreement . The
Credit Agreement is hereby amended and modified as of the Effective
Date as follows:
Section
5.1. Liens . For the period commencing on December 30, 2008
and ending on May 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 May 1, 2009, other
than (x) Liens approved by the Required Lenders, (y) Liens securing
the Obligations, and (z) any consensual Liens securing the
contemplated financings (“Contemplated Financings”) of
the properties scheduled on Exhibit 8.1. (h) 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 excepting only assignments of management
agreements that have been approved by the Required Lenders in
writing.”
Section 5.2.
Indebtedness
. For the period commencing on
December 30, 2008 and ending on May 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
