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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 th day 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 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 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) the
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."
2
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 shall 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 th
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