Exhibit 10.1
THIRTEENTH AMENDMENT TO CREDIT
AGREEMENT
THIS THIRTEENTH AMENDMENT TO CREDIT
AGREEMENT (this “Amendment”) is dated to be effective
as of the 19 th day of October, 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 Amendment) 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, 2007,
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 Ninth
Amendment To Credit Agreement dated to be effective as of October
1, 2008 (the “Ninth Amendment”), the Tenth Amendment To
Credit Agreement dated to be effective as of December 30, 2008, the
Eleventh Amendment To Credit Agreement dated to be effective as of
March 20, 2009 (the “Eleventh Amendment”), and the
Twelfth Amendment To Credit Agreement dated to be effective as of
April 28, 2009 (the “Twelfth Amendment”) (collectively,
as amended by this Amendment, and as further amended, modified,
substituted, extended and renewed from time to time, the
“Credit Agreement”).
The Obligors have requested the
Credit Parties to amend and modify certain of the provisions of the
Credit Agreement. The undersigned Parties have entered into this
Amendment to provide for the requested modifications in accordance
with the terms and conditions set forth in this Amendment. The
undersigned Lenders collectively hold one hundred percent (100%) of
the Aggregate Commitments.
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 And 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; (c) the Obligors have no defenses, claims of
offset, or counterclaims against the enforcement of the Loan
Documents in accordance with all stated terms; and (d) the Total
Outstandings as of the Effective Date are Ninety-One Million Nine
Hundred Seventy Five Thousand Five Hundred Sixty Nine Dollars and
Sixty Seven Cents ($91,975,569.67). Each Obligor hereby reaffirms
and ratifies all of its respective
duties and
obligations under the Credit Agreement and the other Loan Documents
to which it is a party, as amended and modified by the terms of
this Amendment.
Section
2. No Further Advances of Loan Proceeds And No
Further Issuances of Letters of Credit . The Parties agree that notwithstanding any
provisions to the contrary in the Credit Agreement or in any other
Loan Documents, the Lenders and the L/C Issuer shall have no
obligation during the remaining term of the Credit Agreement to
advance any 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. The Loans shall be paid and satisfied in full
on or before the Maturity Date. The Credit Parties agree to renew
the existing Letters of Credit which are scheduled on Exhibit A
attached to this Amendment in accordance with the stated annual
renewal provisions thereof, provided that: (a) the expiry dates of
such Letters of Credit as renewed will not be extended for more
than one year beyond any existing expiry dates; (b) the face
amounts of such Letters of Credit are not increased; (c) to the
extent that the expiry dates of any of such Letters of Credit as
extended are beyond the Letter of Credit Expiration Date, the
Borrower shall, on or before the Letter of Credit Expiration Date,
Cash Collateralize such Letters of Credit and all L/C Obligations
arising therefrom; and (d) there are no continuing Events of
Default as of the date of any renewal.
Section
3. Permanent Reductions Of Commitments.
The maximum permitted amount of
Aggregate Commitments and the maximum permitted aggregate
Outstanding Amount and the maximum permitted amount of Total
Outstandings shall be permanently reduced from time to time by all
amounts paid to the Agent for the accounts of the Lenders from: (a)
the cash proceeds of the Approved Dispositions; (b) the cash
proceeds of any “Federal Refunds,” as such term is
defined in the Eleventh Amendment; (c) the cash components of the
“Mandatory Events” (as defined below); and (d) any
other cash principal repayments received from time to time by the
Agent for the accounts of the Lenders. The respective Commitments
of the Lenders shall be permanently reduced on each date of the
receipt of any such cash proceeds on a pro rata
basis to
reflect proportionately among the Lenders the application of such
cash payments to the Loans. The Lenders shall have no obligation to
reinstate their Commitments after any such reductions or to
readvance to the Borrower as proceeds of the Loans any sums which
have been repaid upon the Loans.
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. Addition of Definition of “Additional
Pledges .” The
following definition is added to the Credit Agreement:
“ Additional Pledges
” has the meaning specified in Section 2.7 of this
Agreement.
Section
4.2. Addition Of Definition Of “BLC
Transaction .” The
following definition is added to the Credit Agreement:
“
BLC Transaction ” means the purchase and sale
transaction between BLC Acquisitions, Inc. and certain Subsidiaries
and Affiliates of the Company provided for in a Purchase And Sale
Agreement dated as of October 7, 2009, as amended.
Section
4.3. Amendment Of Definition Of “Cash
Balance .” The
existing definition of “Cash Balance” is amended and
restated as follows:
“ Cash Balance
”
means the aggregate amount of unrestricted cash of the Company and
of Sunrise Senior Living Management, Inc. on deposit with the
Administrative Agent. For the avoidance of doubt, cash deposits
contained in any escrow, pledged, hypothecated, assigned or
restricted accounts shall not be included in the calculation of the
Cash Balance.
Section
4.4. Addition Of Definition Of “Mandatory
Events .” The
following definition is added to the Credit Agreement:
“ Mandatory Events ” has the
meaning specified in Section 2.7 of this Agreement.
Section
4.5. Amendment Of Definition Of “Maturity
Date .” The
existing definition of “Maturity Date” is amended and
restated in its entirety as the following definition:
“ Maturity Date ” means December 2,
2010.
Section
4.6. Modification Of Definition Of
“Subsidiary .” The existing definition of
“Subsidiary” is amended and restated in its entirety as
the following definition:
“ Subsidiary ” of a Person
means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares
of securities or other interests having ordinary voting power for
the election of directors or other governing body (other than
securities or interests having such power only by reason of the
happening of a contingency) are at the time either directly or
indirectly owned by such Person or otherwise beneficially owned by
such Person through one or more intermediaries, or such Person has
the direct power, or indirect power through one or more
intermediaries, to vote such shares or interests.”
Section
4.7. Addition Of Definition Of “Sweet 16
Communities .” The
following definition is added to the Credit Agreement:
“ Sweet 16 Communities ”
means collectively the assisted living communities located at the
following locations: Colorado Springs, West Hartford, Augusta, Fall
Creek, Fort Wayne, Willow Lake, Ann Arbor, South Charlotte,
Albuquerque, Englewood, Kenwood, Oakwood, Wooster, Monroeville,
Virginia Beach Estates and Fairfax
Section
4.8. Addition of Subsections 2.7(c) ( Mandatory
Events ) and 2.7(d) ( Payments ) . Section 2.7 ( Repayment Of Loans ) of
the Credit Agreement is amended by adding the following subsections
(c) and (d):
(c)
Mandatory Events . The following
events (collectively, “Mandatory Events”) shall occur
on or before the following dates:
(i)
Immediately upon the closing of the BLC Transaction, the
Administrative Agent shall receive for the ratable benefit of the
Lenders at the time of the closing of the BLC Transaction the
following: (A) a Twenty Five Million
Dollar ($25,000,000) cash principal
repayment of the Loans which shall result in a permanent reduction
of the Commitments in such amount, and (B) any one of the following
(x) the receipt by the Administrative Agent for cancellation of
original Letters Of Credit issued by the L/C Issuer in an aggregate
face amount of not less than Three Million Six Hundred Fifty Nine
Thousand One Hundred Seventy Eight Dollars and Thirty-Two Cents
($3,659,178.32) without any drafts having been presented against
such Letters Of Credit, (y) the Borrowers shall have made
arrangements satisfactory to the L/C Issuer for the subsequent
return and cancellation of such Letters Of Credit, or, (z) the
Borrowers shall have paid to the Administrative Agent for the
ratable benefit of the Lenders the sum of Three Million Six Hundred
Fifty Nine Thousand One Hundred Seventy Eight Dollars and
Thirty-Two Cents ($3,659,178.32) as a principal repayment of the
Loans which shall result in a permanent reduction of the
Commitments in such amount; or
(ii)
In the event that the BLC Transaction has not closed by June 30,
2010, the Administrative Agent shall receive for the ratable
accounts of the Lenders on July 1, 2010 either: (A) an additional
cash repayment of principal and permanent reduction in Commitments
in an amount of not less than Twenty Five Million Dollars
($25,000,000) and either the return to the Administrative Agent of
Letter(s) Of Credit issued by the L/C Issuer in an aggregate face
amount of at least Three Million Six Hundred Fifty Nine Thousand
One Hundred Seventy Eight Dollars and Thirty Two Cents
($3,659,178.32) (without any drafts having been presented thereon)
or in lieu of such return, an additional cash payment of principal
in the amount of Three Million Six Hundred Fifty Nine Thousand One
Hundred Seventy Eight Dollars and Thirty Two Cents ($3,659,178.32),
in either case, each being an additional permanent reduction in
Commitments; or (B) an additional Five Million Dollar
($5,000,000) cash repayment of principal and permanent reduction in
Commitments plus a One Million Dollar ($1,000,000) extension
fee, plus the following (collectively, the “Additional
Pledges”): (x) subordinate perfected mortgage liens against
the properties of the Sweet 16 Communities junior in lien priority
only to existing mortgages, or
(y) if any required consents from
the existing mortgagees holding mortgage liens against the Sweet 16
Communities cannot be obtained to the granting of such subordinate
mortgage liens, a perfected first priority pledge of and security
interest in one hundred percent (100%) of the equity interests of
the entities owning the Sweet 16 Communities together with all
necessary consents thereto.
(d)
Payments . The Borrowers
shall pay to the Administrative Agent for the ratable benefit of
the Lenders on the first business day of each of June, 2010,
August, 2010, and October, 2010, principal payments in the amount
of One Million Five Hundred Thousand
Dollars ($1,500,000) each, provided
that the Cash Balance measured as of the last day of the
immediately preceding month is not less than Thirty Million Dollars
($30,000,000), which principal payments shall result in a permanent
reduction in the Commitments.
Section
4.9. Additional Reporting Requirements
. Section 7.2(i) ( Certificates;
Other Information ) of the Credit
Agreement is amended and restated as follows:
(i) on or before
December 31, 2009, cash flow projections, an analysis of projected
liquidity and a projected profit and loss forecast for the Company
and its Subsidiaries through the Maturity Date (together
