SECOND AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.43
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this “Agreement”) is made as of the 31st
day of January, 2007 between SUNRISE SENIOR LIVING, INC. a Delaware corporation (the “Company”),
and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and Letter of Credit Issuer
(the “Administrative Agent”) for itself and certain additional lenders who are or shall be from
time to time participating as lenders pursuant to the Credit Agreement as hereinafter defined
(collectively with the Administrative Agent, the “Lenders”).
RECITALS
A. The Lenders have made a Credit Facility available to the Company in the maximum principal
sum at any one time outstanding of $250,000,000.
B. The Credit Facility is governed by a Credit Agreement dated December 2, 2005 as amended by
that certain First Amendment to Credit Agreement dated March 6, 2006 (as amended, modified,
substituted, extended and renewed from time to time the “Credit Agreement”) by and between the
Company and the Lenders.
C. The Credit Facility is guaranteed by the Guarantors pursuant to the terms of the Credit
Agreement.
D. The Company and the Lenders have agreed to (i) modify the delivery deadlines for certain
financial statements; (ii) add a covenant for provision of certain additional monthly financial
reports until the delivery of the delayed quarterly and annual financial statements; (iii) increase
the applicable interest rate of the Loan until delivery of the delayed financial statements; and
(iv) make such other changes to the Credit Agreement as are more particularly set forth herein.
E. As a condition precedent to the agreements referenced above, the Administrative Agent has
required that this Agreement be executed and delivered to the Administrative Agent on behalf of the
Lenders.
AGREEMENTS
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 Company, the Lenders and the Administrative Agent hereby agree as follows:
1. The above Recitals are a part of this Agreement. Unless otherwise expressly defined in
this Agreement, terms defined in the Credit Agreement shall have the same meaning under this
Agreement.
2. The Company represents and warrants to the Lender as follows:
(a) The Company has the power and authority to execute and deliver this Agreement and perform
its obligations hereunder;
(b) The Credit Agreement, as amended by this Agreement, and each of the other Loan Documents
remains in full force and effect, and each constitutes the valid and legally binding obligation of
Borrower, enforceable in accordance with its terms;
(c) All of the Company’s representations and warranties contained in the Credit Agreement and
the other Loan Documents are true and correct on and as of the date of the Company’s execution of
this Agreement with the exception of representations and warranties regarding financial statements
described in Section 6.5 of the Credit Agreement; and
(d) No Event of Default and no event which, with notice, lapse of time or both would
constitute an Event of Default, has occurred and is continuing under the Credit Agreement or the
other Loan Documents which has not been waived in writing by the Lender.
3. The Company hereby acknowledges and agrees that pursuant to the terms of Sections 7.1 and
7.2 of the Credit Agreement the Company is required to deliver to the Administrative Agent certain
quarterly and annual financial statements and certain Compliance Certificates within the time
period specified therein. The Company, the Administrative Agent and the Lenders hereby agree to
modify the delivery dates of: (a) all quarterly financial statements for 2006, (b) quarterly
financial statement for the quarter ending March 31, 2007, and (c) the annual financial statement
for the Company for the fiscal year ending December 31, 2006, as each such financial statement was
to be submitted to the SEC, and (d) the Compliance Certificates to be submitted to the
Administrative Agent with each such financial statement required pursuant to Section 7.2 of the
Credit Agreement (collectively, the “Outstanding Financial Reports”). The modification applies to
the quarterly statements for the fiscal quarters ending March 31, 2006, June 30, 2006, September
30, 2006, December 31, 2006 and March 31, 2007 and the annual statement for the fiscal year ended
December 31, 2006. As amended by this Agreement, the financial statements will be due no later
than June 30, 2007. The Company hereby further agrees that if such above-referenced quarterly and
annual financial statements are not complete by June 1, 2007, then on or before June 1, 2007, the
Company shall provide internally prepared financial statements for its fiscal year 2006, in form
and detail satisfactory to Administrative Agent.
4. The Company, the Administrative Agent and the Lenders hereby agree that commencing on
January 1, 2007 through the date of the delivery to the Administrative Agent of the Outstanding
Financial Reports the Borrowers shall pay interest on the Outstanding Amount at the Applicable Rate
provided as Pricing Level IV under the terms and conditions provided in the Credit Agreement.
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5. The Company, the Administrative Agent and the Lenders hereby agree that commencing with
reports for operations during the month of December, 2006 through the date of the delivery to the
Administrative Agent of the Outstanding Financial Reports, the Company shall deliver, within
forty-five (45) days after the end of each month, internally prepared operating data that reflects
revenue, expense, margin, average daily rate and occupancy for only such Senior Living Facilities,
on an aggregate basis, in which the Company or its affiliates have an ownership interest and which
operated in both the current month and the corresponding month of the previous fiscal year in
comparative form for both periods fairly presenting the financial condition of such Senior Living
Facility.
6. The Company, the Administrative Agent and the Lenders hereby agree that the Company shall
pay to the Administrative Agent for the account of each Lender that executes this Agreement, in
accordance with its Applicable Percentage, a fee equal to five (5) basis points.
7. Except as specifically set forth herein, the terms, provisions and covenants of the Credit
Agreement, including, but not limited to, all financial covenants and definitions related thereto,
are hereby ratified and confirmed and remain in full force and effect.
8. This Agreement may be executed in any number of duplicate originals or counterparts, each
of such duplicate originals or counterparts shall be deemed to be an original and all taken
together shall constitute but one and the same instrument.
9. By their signatures below, the Guarantors consent to the transactions contemplated by and
the agreements made by the Company under this Agreement and ratify, confirm and reissue their
guaranty as set forth in the Credit Agreement.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered under seal by their duly authorized representatives as of the date and year first written
above.
| COMPANY: SUNRISE SENIOR LIVING, INC. |
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| By: | /s/ Xxxx X. Xxxxx | (Seal) | ||
| Xxxx X. Xxxxx | ||||
| Treasurer | ||||
| GUARANTORS: SUNRISE SENIOR LIVING MANAGEMENT, INC. |
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| By: | /s/ Xxxx X. Xxxxx | (Seal) | ||
| Xxxx X. Xxxxx | ||||
| Vice President | ||||
| SUNRISE SENIOR LIVING INVESTMENTS, INC. |
||||
| By: | /s/ Xxxx X. Xxxxx | (Seal) | ||
| Xxxx X. Xxxxx | ||||
| Vice President | ||||
| SUNRISE DEVELOPMENT, INC. |
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| By: | /s/ Xxxx X. Xxxxx | (Seal) | ||
| Xxxx X. Xxxxx | ||||
| Vice President | ||||
| SUNRISE SENIOR LIVING SERVICES, INC. |
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| By: | /s/ Xxxx X. Xxxxx | (Seal) | ||
| Xxxx X. Xxxxx | ||||
| Vice President | ||||
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| BANK OF AMERICA, N.A., as Administrative Agent |
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| By: | /s/ Ronaldo Naval | (Seal) | ||
| Name: | Ronaldo Naval | |||
| Title: | Vice Presdident | |||
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| BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing Line
Lender |
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| By: | /s/ Xxxxxxx X. Xxxxxxx | (Seal) | ||
| Xxxxxxx X. Xxxxxxx | ||||
| Senior Vice President | ||||
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| WACHOVIA BANK, NATIONAL ASSOCIATION, as a Lender |
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| By: | /s/ Xxxxx X. Xxxxxxxx III | |||
| Xxxxx X. Xxxxxxxx III | ||||
| Senior Vice President | ||||
S-4
| LASALLE BANK NATIONAL ASSOCIATION, as a Lender |
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| By: | /s/ Xxx X. Xxxxxxxxx | |||
| Xxx X. Xxxxxxxxx | ||||
| First Vice President | ||||
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| HSBC BANK USA, N.A., as a Lender |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Xxxxxxx X. Xxxxx | ||||
| Vice President | ||||
S-6
| MANUFACTURERS AND TRADERS TRUST COMPANY, as a Lender |
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| By: | /s/ Xxxxxx X. X’Xxxxx | |||
| Xxxxxx X. X’Xxxxx | ||||
| Vice President | ||||
S-7
| PNC BANK, NATIONAL ASSOCIATION, as a Lender |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Xxxxxxx X. Xxxxx | ||||
| Senior Vice President | ||||
S-8
| CHEVY CHASE BANK, F.S.B., as a Lender |
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| By: | /s/ Xxxxx-Xxxxxxxxx X. Xxx | |||
| Xxxxx-Xxxxxxxxx X. Xxx | ||||
| Assistant Vice President | ||||
S-9
| FARMERS & MECHANICS BANK, as a Lender |
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| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Xxxxxxx X. Xxxxxxxx | ||||
| Senior Vice President | ||||
S-10
| FIRST HORIZON BANK a division of FIRST TENNESSEE
BANK, N.A., as a Lender |
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| By: | /s/ Xxxxxxx X. Rub | |||
| Xxxxxxx X. Rub | ||||
| Vice President | ||||
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