FIRST AMENDMENT, CONSENT AND WAIVER TO CREDIT AGREEMENT
EXECUTION
VERSION
FIRST
AMENDMENT, CONSENT AND
WAIVER
TO
CREDIT AGREEMENT
FIRST
AMENDMENT, CONSENT AND WAIVER, dated as of October 10, 2007 (this
“Amendment”), to the AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
November 15, 2006 (as the same may be further amended, supplemented,
extended or restated, or otherwise modified from time to time, the “Credit
Agreement”), among BROOKDALE SENIOR LIVING INC., a Delaware corporation (the
“Borrower”), the several banks and other financial institutions or
entities from time to time parties to this Agreement (the “Lenders”),
XXXXXX BROTHERS INC. and CITIGROUP GLOBAL MARKETS INC., as joint lead arrangers
and joint bookrunners (in such capacity, the “Joint Lead Arrangers”),
XXXXXXX SACHS CREDIT PARTNERS L.P., LASALLE BANK NATIONAL ASSOCIATION and BANC
OF AMERICA SECURITIES LLC, as co-arrangers (in such capacity, the
“Co-Arrangers”), LASALLE BANK NATIONAL ASSOCIATION and BANK OF AMERICA,
N.A., as co-syndication agents (in such capacity, the “Co-Syndication
Agents”), XXXXXXX XXXXX CREDIT PARTNERS L.P. and CITICORP NORTH AMERICA,
INC., as co-documentation agents (in such capacity, the “Co-Documentation
Agents”) and XXXXXX COMMERCIAL PAPER INC., as administrative agent (in such
capacity, the “Administrative Agent”).
W
I T N E
S S E T H:
WHEREAS,
the Borrower has requested that the Lenders amend the Credit Agreement to
clarify that certain types of guarantees are excluded from the definition of
“Indebtedness”;
WHEREAS,
the Borrower has requested that the Lenders also amend the Credit Agreement
to
permit additional Investments among other amendments; and
WHEREAS,
the Lenders have agreed to amend the Credit Agreement solely upon the terms
and
conditions set forth herein;
NOW,
THEREFORE, in consideration of the premises and the agreements hereinafter
set
forth, the parties hereto hereby agree as follows:
1. Defined
Terms. Unless otherwise noted herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
2. Amendment
to Section 1.1 of the Credit Agreement (Defined Terms).
(a) Section 1.1
of the Credit Agreement is hereby amended by adding the following new defined
terms in the appropriate alphabetical order:
2
“Construction
Completion Obligation”: the obligation of any Subsidiary of the
Borrower to complete the construction of a community to be completed by such
Subsidiary.
“Effective
Termination Date”: as defined in Section 2.6.
“Entrance
Fee Refund”: the obligation of any Subsidiary to refund all or a
portion of any entrance fee paid by a resident of a community owned and/or
operated by a Subsidiary upon the termination of such resident’s occupancy,
including but not limited to such obligations structured through master trusts
or similar arrangements.
“First
Amendment”: the First Amendment to this Agreement, dated as of
October 10, 2007.
“First
Amendment Effective Date”: the “Amendment Effective Date” as
defined in the First Amendment.
“Operating
Deficits”: community expenses (including any debt service) of a
pre-stabilized and/or newly constructed community owned and/or operated by
a
Subsidiary to the extent they exceed the operating revenues at such
community.
(b) Section 1.1
of the Credit Agreement is hereby further amended by inserting at the end of
the
definition of “Capital Lease Obligations” the words “For the avoidance of doubt,
“Capital Lease Obligations” shall not include leases of operating assets which
are required to be classified and accounted for as a capital lease by
GAAP.
(c) Section 1.1
of the Credit Agreement is hereby further amended by deleting the last sentence
in the definition of “Indebtedness” and inserting the following at the end of
the definition:
“For
the
avoidance of doubt, “Indebtedness” shall not include any guarantee by the
Borrower or any of its Subsidiaries of obligations under, or relating to, any
operating lease, Construction Completion Obligation and Entrance Fees
Refund.”
(d) Section
1.1 of the Credit Agreement is hereby further amended by deleting the
definitions of “Consolidated Adjusted Debt”, “Consolidated Total Debt”, “LaSalle
L/C Termination Date” and “Revolving Credit Termination Date” and substituting
in lieu thereof the following new definitions in the appropriate alphabetical
order:
“Consolidated
Adjusted Debt”: at any date, an amount equal to (a) Funded
Debt of the Borrower and its Subsidiaries on such date, determined on a
consolidated basis in accordance with GAAP plus (b) the product of
Consolidated Lease Expense for the period of four consecutive fiscal quarters
most recently ended on or prior to such date multiplied by eight minus
(c) the amount of cash and Cash Equivalents held by the Borrower and its
Subsidiaries on such date (provided that, the amount deducted pursuant to
this clause (c) shall not exceed $80,000,000 on any date of
determination).
3
“Consolidated
Total Debt”: at any date, an amount equal to (x) without
duplication, the aggregate principal amount of all Indebtedness of the Borrower
and its Subsidiaries at such date, determined on a consolidated basis in
accordance with GAAP minus (y) the amount of cash and Cash
Equivalents held by the Borrower and its Subsidiaries on such date
(provided that, the amount deducted pursuant to this
clause (y) shall not exceed $80,000,000 on any date of
determination).
“LaSalle
L/C Termination Date”: November 15, 2008 or such later date as
extended pursuant to Section 2.6.
“Revolving
Credit Termination Date”: November 15, 2008 or such later date as
extended pursuant to Section 2.6.
3. Amendment
to Section 2.1 of the Credit Agreement (Revolving Credit
Commitments). Section 2.1(a) of the Credit Agreement is
hereby amended by deleting the proviso at the end of such Section in its
entirety and substituting in lieu thereof the following new
proviso:
“,
provided that, (i) no Revolving Credit Loan shall be made as a
Eurodollar Loan after the day that is one month prior to the Revolving Credit
Termination Date then in effect unless the Borrower has elected to extend such
Effective Termination Date pursuant to Section 2.6 and (ii) if the Revolving
Credit Termination Date has been extended in accordance with Section 2.6 hereof,
no Revolving Credit Loan shall be made as a Eurodollar Loan after the date
that
is one month prior to the Revolving Credit Termination Date then in
effect.”
4. Amendment
to Section 2.6 of the Credit Agreement (Extension of the Maturity
Date). Section 2.6 of the Credit Agreement is hereby amended
by deleting such Section in its entirety and substituting in lieu thereof the
following:
“2.6 Extension
of the Termination Dates. (a) During the period
commencing not more than 90 days prior to, and ending not less than 30 days
prior to, the Revolving Credit Termination Date and/or the LaSalle L/C
Termination Date, as applicable, then in effect (each, an “Effective
Termination Date”), the Borrower may request a three month extension of the
Revolving Credit Termination Date and/or the LaSalle L/C Termination Date by
delivering written notice (an “Extension Request Notice”) of such request
to the Administrative Agent, which the Administrative Agent shall distribute
promptly to the applicable Lenders, provided that, (i) the Borrower
may not submit more than two Extension Request Notices for each of the Revolving
Credit Facility or the LaSalle L/C Facility and (ii) the Borrower may
deliver an Extension Request Notice for the first such extension on or after
the
First Amendment Effective Date.
(b) Each
extension of each of the Revolving Credit Termination Date and the LaSalle
L/C
Termination Date shall become automatically effective on the applicable
Effective Termination Date subject to the satisfaction of the following
conditions precedent:
4
(i) with
respect to each extension of the Revolving Credit Termination Date, the Borrower
shall pay to the Administrative Agent, for distribution to each Revolving Credit
Lender which holds a Revolving Credit Commitment on the applicable Effective
Termination Date, a one-time fee in an amount equal to 0.1875% of the Revolving
Credit Commitment of such Lender on such date (or, if the Revolving Credit
Commitments have been terminated, the aggregate principal amount of the
Revolving Credit Loans then outstanding);
(ii) with
respect to each extension of the LaSalle L/C Termination Date, the Borrower
shall pay to the Administrative Agent, for distribution to LaSalle, a one-time
fee in an amount equal to 0.1875% of the LaSalle L/C Commitment on the
applicable Effective Termination Date (or, if the LaSalle L/C Commitment has
been terminated, the aggregate amount of LaSalle L/C Obligations on such date);
and
(iii) no
Default or Event of Default shall have occurred and be continuing either on
the
date that the Borrower has delivered to the Administrative Agent the request
to
extend the Revolving Credit Termination Date and/or the LaSalle L/C Termination
Date, or on the applicable Effective Termination Date in effect immediately
prior to giving effect to such extension.”
5. Amendment
to Section 2.11 of the Credit Agreement (Conversion and Continuation
Options). Section 2.11(a) of the Credit Agreement is hereby
amended by deleting the second sentence thereof in its entirety and substituting
in lieu thereof the following:
“The
Borrower may elect from time to time to convert Base Rate Loans to Eurodollar
Loans by giving the Administrative Agent at least three Business Days’ prior
irrevocable notice of such election (which notice shall specify the length
of
the initial Interest Period therefor), provided that no Base Rate Loan
under a particular Facility may be converted into a Eurodollar Loan (i) when
any
Event of Default has occurred and is continuing and the Administrative Agent
has, or the Required Lenders have, determined in its or their sole discretion
not to permit such conversions or (ii) after the date that is one month prior
to
the Revolving Credit Termination Date then in effect unless the Borrower has
elected to extend the Revolving Credit Termination Date pursuant to Section
2.6
and, if the Revolving Credit Termination Date has been extended in accordance
with Section 2.6 hereof, no Revolving Credit Loan shall be made as a Eurodollar
Loan after the date that is one month prior to the Revolving Credit Termination
Date then in effect.”
6. Amendment
to Section 6.11 of the Credit Agreement (Additional Collateral,
etc.). Section 6.11 of the Credit Agreement is hereby
amended by inserting immediately following the words “created or acquired in
connection with an Acquisition” the words “with a purchase price exceeding
$10,000,000”.
5
7. Amendment
to Section 7.1 of the Credit Agreement (Financial Condition
Covenants). Section 7.1(a) of the Credit Agreement is hereby
amended by deleting the table set forth in such Section in its entirety and
substituting in lieu thereof the following new table:
Fiscal
Quarter
|
Consolidated
Leverage
Ratio
|
FQ4
2006 through FQ2 2008
|
7.25
to 1.00
|
FQ3
2008 through FQ4 2008
|
7.00
to 1.00
|
FQ1
2009 and each fiscal quarter thereafter
|
6.75
to 1.00
|
8. Amendments
to Section 7.2 of the Credit Agreement (Limitation on
Indebtedness).
(a) Section 7.2(c)
of the Credit Agreement is hereby amended by deleting clause (i) of such
Section in its entirety and substituting in lieu thereof the following new
clause (i):
“(i) assumed
by the Borrower and its Subsidiaries in connection with any Acquisition;
provided that, at the time of the assumption of such Capital Lease
Obligations, a certificate of a Responsible Officer shall have been delivered
to
the Administrative Agent, which shall include a computation demonstrating Pro
Forma Compliance with the financial covenants contained in Section 7.1
after giving effect to such Capital Lease Obligations if either (x) the
aggregate amount of such Capital Lease Obligations assumed by the Borrower
and
its Subsidiaries in connection with such Acquisition exceeds $1,000,000 or
(y) the aggregate amount of such Capital Lease Obligations assumed by the
Borrower and its Subsidiaries in connection with Acquisitions since the Closing
Date exceeds $25,000,000 at any one time outstanding; and provided
further that, such Capital Lease Obligations existed at the time of
such Acquisition and were not created in connection therewith or in
contemplation thereof, or”
(b) Section 7.2(e)
of the Credit Agreement is hereby amended by deleting clause (vi) of such
Section in its entirety and substituting in lieu thereof the following new
clause (vi):
“(vi) obligations
of any Subsidiary in an aggregate amount not exceeding (A) $150,000,000 at
any
one time outstanding to the extent not otherwise permitted by
Section 7.2(d) or clauses (i), (ii), (iii), (iv) or (v) of this
Section 7.2(e) minus (B) the amount of Investments made in
accordance with Section 7.7(j)(iii);”
(c) Section 7.2(f)
of the Credit Agreement is hereby amended by deleting the words following
“provided further that” and substituting in lieu thereof the
following:
“after
giving effect to such additional Indebtedness, (i) the Borrower shall be in
Pro Forma Compliance with the financial covenants contained in Section 7.1
hereof and (ii) no Event of Default shall exist. For such
Indebtedness exceeding $100,000,000
6
individually,
at the time of or prior to the incurrence of such Indebtedness, the Borrower
shall deliver to the Administrative Agent a pro forma Compliance
Certificate certifying (and including computations in reasonable detail) that,
after giving effect to such additional Indebtedness, the requirements in
clauses (i) and (ii) of this Section 7.2(f) have been
met. For the purposes of this Section 7.2, pledges of Hedge
Agreements and posting of letters of credit in lieu of reserves shall not
constitute credit support;”
(d) Section 7.2(h)
of the Credit Agreement is hereby amended by deleting such Section in its
entirety and substituting in lieu thereof the following:
“(h) Indebtedness
(excluding any Recourse Indebtedness except to the extent such Recourse
Indebtedness does not exceed $75,000,000 in the aggregate outstanding at any
one
time) assumed by the Borrower or any Subsidiary in connection with any
Acquisition; provided that, such Indebtedness existed at the time of such
Acquisition and was not created in connection therewith or in contemplation
thereof; and provided further that, after giving effect to such
additional Indebtedness, (i) the Borrower shall be in Pro Forma Compliance
with the financial covenants contained in Section 7.1 hereof and
(ii) no Event of Default shall exist. For such Indebtedness
exceeding $100,000,000 individually, at the time of or prior to the incurrence
of such Indebtedness, the Borrower shall deliver to the Administrative Agent
a
pro forma Compliance Certificate certifying (and including
computations in reasonable detail) that, after giving effect to such additional
Indebtedness, the requirements in clauses (i) and (ii) of this
Section 7.2(h) have been met;”
(e) Section 7.2(i)
of the Credit Agreement is hereby amended by deleting such Section in its
entirety and substituting in lieu thereof the following:
“(i) Indebtedness
of a Non-Recourse Subsidiary Borrower secured solely by the Capital Stock of
the
Non-Recourse Subsidiary Borrower or any other Non-Recourse Subsidiary Borrower;
provided that, after giving effect to such additional Indebtedness,
(i) the Borrower shall be in Pro Forma Compliance with the financial
covenants contained in Section 7.1 hereof and (ii) no Event of Default
shall exist; and provided further that, if such Indebtedness
exceeds $25,000,000 individually, at the time of or prior to the incurrence
of
such Indebtedness, the Borrower shall deliver to the Administrative Agent a
pro forma Compliance Certificate certifying (and including
computations in reasonable detail) that, after giving effect to such additional
Indebtedness, the requirements in clauses (i) and (ii) of this
Section 7.2(i) have been met;”
9. Amendment
to Section 7.6 of the Credit Agreement (Limitation on Restricted
Payments). Section 7.6(c) of the Credit Agreement is hereby
amended by deleting such Section in its entirety and substituting in lieu
thereof the following:
“(c) the
Borrower may pay dividends to the holders of its Capital Stock, provided
that, after giving effect to such Restricted Payment, (i) the Borrower
shall be in Pro Forma Compliance with the financial covenants contained in
Section 7.1 hereof and (ii) no Event of Default shall exist; and
provided further that, if the amount of such Restricted Payment
exceeds an amount equal to 112% of the immediately prior Restricted
7
Payment,
at the time of or prior to such Restricted Payment, the Borrower shall deliver
to the Administrative Agent a pro forma Compliance Certificate
certifying (and including computations in reasonable detail) that, after giving
effect to such Restricted Payment, the requirements in clauses (i) and (ii)
of this Section 7.6(c) have been met;”
10. Amendments
to Section 7.7 of the Credit Agreement (Limitation on
Investments).
(a) Section 7.7(f)
of the Credit Agreement is hereby amended by deleting such Section in its
entirety and substituting in lieu thereof the following:
“(f) Acquisitions
that are consistent with, and otherwise in connection with, those businesses
in
which the Borrower and its Subsidiaries are engaged on the date hereof and/or
that are reasonably related thereto, including, without limitation, any advance,
any loan or extension of credit made by the Borrower and its Subsidiaries to
the
seller on an interim basis in connection with any such Acquisition on account
or
in lieu of the consideration for such Acquisition pursuant to the terms of
an
acquisition agreement among the Borrower and/or the relevant Subsidiary and
the
seller; provided that, after giving effect to such Investment,
(i) the Borrower shall be in Pro Forma Compliance with the financial
covenants of Section 7.1 hereof and (ii) no Event of Default shall
exist; and provided further that, if such Investment exceeds
$125,000,000 individually, at the time of or prior to the consummation of such
Acquisition, the Borrower shall deliver to the Administrative Agent a pro
forma Compliance Certificate certifying (and including computations
in reasonable detail) that, after giving effect to such Investment, the
requirements in clauses (i) and (ii) of this Section 7.7(f) have been
met;”
(b) Section 7.7
of the Credit Agreement is hereby further amended by (i) deleting “and” at
the end of Section 7.7(g), (ii) deleting “.” at the end of
Section 7.7(h) and inserting “;” in lieu thereof and (iii) inserting
the following new sections in the appropriate alphabetical order:
“(i) (i)
agreements by the Borrower and the Subsidiary Guarantors to make Investments
in
any Subsidiary to the extent of any Operating Deficits, (ii) Guarantee
Obligations by the Borrower and the Subsidiary Guarantors of Entrance Fee
Refunds and (iii) Investments consisting of customary completion guarantees
provided by the Borrower and the Subsidiary Guarantors of Construction
Completion Obligations in connection with Indebtedness permitted by
Sections 7.2(f) and (g), provided that, the aggregate amount of
payments made pursuant to such agreements, Guarantee Obligations and completion
guarantees shall not exceed $40,000,000 during the term of this
Agreement;
(j) the
Borrower or any Subsidiary of the Borrower may make advances, loans, extensions
of credit or capital contributions to any Subsidiary of the Borrower (i) to
fund Acquisitions contemplated by Section 7.7(f), (ii) to pay
operating expenses, debt service, lease payments, capital expenditures and
any
other expenses incurred by such Subsidiary in the ordinary course of business
and (iii) in an aggregate amount not exceeding (A) $150,000,000 during
the term of this Agreement in connection with
8
expanding existing assets or engaging in de novo development activity of such Subsidiary minus (B) the aggregate amount of Guarantee Obligations outstanding in accordance with Section 7.2(e)(vi); provided that, in each case, if any such Investment is made in a new Subsidiary, the Borrower shall comply with the requirements of Section 6.11; and
(k) any
other Investment by the Borrower or any of its Subsidiaries not otherwise
permitted under this Section 7.7 not exceeding $5,000,000 individually or
$25,000,000 in the aggregate at any one time outstanding.”
11. Conditions
to Effectiveness. This Amendment shall become effective upon the
date (the “Amendment Effective Date”) on which the Administrative Agent
shall have received:
(a) This
Amendment, executed and delivered by a duly authorized officer of the Borrower
and the Administrative Agent.
(b) An
Acknowledgment and Consent, substantially in the form of Exhibit A hereto
(an “Acknowledgment and Consent”), duly executed and delivered by each
Grantor.
(c) A
Lender
Consent Letter, substantially in the form of Exhibit B (a “Lender
Consent Letter”), duly executed and delivered by the Required
Lenders.
12. Representations
and Warranties. The Borrower hereby represents and warrants to
the Administrative Agent and each Lender that as of the Amendment Effective
Date
(before and after giving effect to this Amendment):
(a) Each
Loan
Party has the requisite power and authority to make, deliver and perform this
Amendment and the Acknowledgment and Consent (collectively, the “Amendment
Documents” to which it is a party.
(b) Each
Loan
Party has taken all necessary corporate or other action to authorize the
execution, delivery and performance of the Amendment Documents to which it
is a
party. No consent or authorization of, filing with, notice to or
other act by or in respect of, any Governmental Authority or any other Person
is
required in connection with the Amendment Documents, or the execution, delivery,
performance, validity or enforceability of this Amendment or the other Amendment
Documents, except (i) consents, authorizations, filings and notices which
have been obtained or made and are in full force and effect and (ii) the
filings contemplated by Section 4.19 of the Credit
Agreement. Each Amendment Document has been duly executed and
delivered on behalf of each Loan Party that is a party thereto. Each
Amendment Document and the Credit Agreement, as amended hereby (the “Amended
Credit Agreement”) constitutes a legal, valid and binding obligation of each
Loan Party that is a party thereto, enforceable against each such Loan Party
in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the
enforcement of creditors’ rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
9
(c) The
execution, delivery and performance of the Amendment Documents will not violate
any Requirement of Law or any Contractual Obligation of the Borrower or any
of
its Subsidiaries and will not result in, or require, the creation or imposition
of any Lien on any of their respective properties or revenues pursuant to any
Requirement of Law or any such Contractual Obligation (other than the Liens
created by the Security Documents).
(d) Each
of
the representations and warranties made by any Loan Party herein or in or
pursuant to the Loan Documents is true and correct in all material respects
on
and as of the Amendment Effective Date as if made on and as of such date (except
that any representation or warranty which by its terms is made as of an earlier
date shall be true and correct in all material respects as of such earlier
date).
(e) The
Borrower and the other Loan Parties have performed in all material respects
all
agreements and satisfied all conditions which this Amendment and the other
Loan
Documents provide shall be performed or satisfied by the Borrower or the other
Loan Parties on or before the Amendment Effective Date.
(f) After
giving effect to this Amendment, no Default or Event of Default has occurred
and
is continuing, or will result from the consummation of the transactions
contemplated by this Amendment.
13. Payment
of Expenses. The Borrower agrees to pay or reimburse the
Administrative Agent for all of its reasonable out-of-pocket costs and expenses
incurred in connection with this Amendment, any other documents prepared in
connection herewith and the transactions contemplated hereby, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
14. Limited
Effect. Except as expressly provided hereby, all of the terms and
provisions of the Credit Agreement and the other Loan Documents are and shall
remain in full force and effect. The amendments contained herein
shall not be construed as a waiver or amendment of any other provision of the
Credit Agreement or the other Loan Documents or for any purpose except as
expressly set forth herein or a consent to any further or future action on
the
part of the Borrower that would require the waiver or consent of the
Administrative Agent or the Lenders.
15. Governing
Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
16. Counterparts. This
Amendment may be executed in any number of counterparts, all of which taken
together shall constitute one and the same agreement, and any of the parties
hereto may execute this Amendment by signing any such counterpart. A
set of the copies of this Amendment and the Lender Consent Letters signed by
all
the parties shall be lodged with the Administrative
Agent. Delivery
of an executed signature page of this
10
Agreement or of a Lender Consent Letter by facsimile transmission shall be effective as delivery of a manually executed counterpart hereof.
17. Binding
Effect. The execution and delivery of the Lender Consent Letter
by any Lender shall be binding upon each of its successors and assigns
(including assignees of its Loans in whole or in part prior to effectiveness
hereof).
18. Headings,
etc. Section or other headings contained in this Amendment are
for reference purposes only and shall not in any way affect the meaning or
interpretation of this Amendment.
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
By:
|
/s/
Xxxxxx Xxxxx
|
||||
Name:
|
Xxxxxx
Xxxxx
|
||||
Title:
|
EVP
|
||||
XXXXXX
COMMERCIAL PAPER INC.,
|
|||||
as
Administrative Agent
|
|||||
By:
|
/s/
Xxxxx Xxxxxx
|
||||
Name:
|
Xxxxx
Xxxxxx
|
||||
Title:
|
Authorized
Signatory
|
[Signature
Page to First Amendment to the Credit
Agreement]
EXHIBIT
A
to
FIRST
AMENDMENT
ACKNOWLEDGMENT
AND CONSENT
Reference
is made to the FIRST AMENDMENT, CONSENT AND WAIVER, dated as of October 10,
2007
(as the same may be further amended, supplemented, extended or restated or
otherwise modified from time to time, the “Amendment”), to the AMENDED
AND RESTATED CREDIT AGREEMENT, dated as of November 15, 2006 (as the same
may be further amended, supplemented, extended or restated, or otherwise
modified from time to time, the “Credit Agreement”), among BROOKDALE
SENIOR LIVING INC., a Delaware corporation (the “Borrower”), the several
banks and other financial institutions or entities from time to time parties
to
this Agreement (the “Lenders”), XXXXXX BROTHERS INC. and CITIGROUP GLOBAL
MARKETS INC., as joint lead arrangers and joint bookrunners (in such capacity,
the “Joint Lead Arrangers”), XXXXXXX XXXXX CREDIT PARTNERS L.P., LASALLE
BANK NATIONAL ASSOCIATION and BANC OF AMERICA SECURITIES LLC, as co-arrangers
(in such capacity, the “Co-Arrangers”), LASALLE BANK NATIONAL ASSOCIATION
and BANK OF AMERICA, N.A., as co-syndication agents (in such capacity, the
“Co-Syndication Agents”), XXXXXXX SACHS CREDIT PARTNERS L.P. and CITICORP
NORTH AMERICA, INC., as co-documentation agents (in such capacity, the
“Co-Documentation Agents”) and XXXXXX COMMERCIAL PAPER INC., as
administrative agent (in such capacity, the “Administrative
Agent”). Unless otherwise defined herein, capitalized terms used
herein and defined in the Credit Agreement are used herein as therein
defined.
Each
of
the undersigned parties to the Amended and Restated Guarantee and Pledge
Agreement, dated as of November 15, 2006 (the “Guarantee and Pledge
Agreement”) hereby (a) consents to the transactions contemplated by the
Amendment and (b) acknowledges and agrees that the guarantees and grants of
security interests made by such party contained in the Guarantee and Pledge
Agreement are, and shall remain, in full force and effect after giving effect
to
the Amendment.
IN
WITNESS WHEREOF, the parties hereto have caused this Acknowledgement and Consent
to be duly executed and delivered by their respective proper and duly authorized
officers as of October 10, 2007.
By:
|
/s/
Xxxxxx Xxxxx
|
||||
Name:
|
Xxxxxx
Xxxxx
|
||||
Title:
|
EVP
|
BROOKDALE
LIVING COMMUNITIES, INC.
|
|||||
By:
|
/s/
Xxxxxx Xxxxx
|
||||
Name:
|
Xxxxxx
Xxxxx
|
||||
Title:
|
EVP
|
AMERICAN
RETIREMENT CORPORATION
|
|||||
By:
|
/s/
Xxxxxx Xxxxx
|
||||
Name:
|
Xxxxxx
Xxxxx
|
||||
Title:
|
EVP
|
FEBC-ALT
INVESTORS LLC
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By:
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/s/
Xxxxxx Xxxxx
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Name:
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Xxxxxx
Xxxxx
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Title:
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EVP
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FEBC-ALT
HOLDINGS INC.
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By:
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/s/
Xxxxxx Xxxxx
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Name:
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Xxxxxx
Xxxxx
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Title:
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EVP
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[Signature
Page to Acknowledgment and
Consent]
ALTERRA
HEALTHCARE CORPORATION
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By:
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/s/
Xxxxxx Xxxxx
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Name:
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Xxxxxx
Xxxxx
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Title:
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EVP
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[Signature
Page to Acknowledgment and
Consent]
EXHIBIT
B
to
FIRST
AMENDMENT
LENDER
CONSENT LETTER
CREDIT
AGREEMENT
DATED
AS
OF NOVEMBER 15, 2006
To: Xxxxxx
Commercial Paper Inc.,
as
Administrative
Agent
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: Xxxxx
Xxxxxx
Ladies
and Gentlemen:
Reference
is made to the AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
November 15, 2006 (as the same may be further amended, supplemented,
extended or restated, or otherwise modified from time to time, the “Credit
Agreement”), among BROOKDALE SENIOR LIVING INC., a Delaware corporation (the
“Borrower”), the several banks and other financial institutions or
entities from time to time parties to this Agreement (the “Lenders”),
XXXXXX BROTHERS INC. and CITIGROUP GLOBAL MARKETS INC., as advisors, joint
lead
arrangers and joint bookrunners (in such capacity, the “Joint Lead
Arrangers”), XXXXXXX XXXXX CREDIT PARTNERS L.P., LASALLE BANK NATIONAL
ASSOCIATION and BANC OF AMERICA SECURITIES LLC, as co-arrangers (in such
capacity, the “Co-Arrangers”), LASALLE BANK NATIONAL ASSOCIATION and BANK
OF AMERICA, N.A., as co-syndication agents (in such capacity, the
“Co-Syndication Agents”), XXXXXXX SACHS CREDIT PARTNERS L.P. and CITICORP
NORTH AMERICA, INC., as co-documentation agents (in such capacity, the
“Co-Documentation Agents”) and XXXXXX COMMERCIAL PAPER INC., as
administrative agent (in such capacity, the “Administrative
Agent”). Unless otherwise defined herein, capitalized terms used
herein and defined in the Credit Agreement are used herein as therein
defined.
The
Borrower has requested that the Required Lenders consent to amend the provisions
of the Credit Agreement solely on the terms described in the First Amendment,
Consent and Waiver to Credit Agreement, dated as of October 10, 2007,
substantially in the form delivered to the undersigned Lender on or prior to
the
date hereof (the “Amendment”).
Pursuant
to Section 10.1 of the Credit Agreement, the undersigned Lender hereby
consents to the execution by the Administrative Agent of the
Amendment.
Very
truly yours,
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(NAME OF LENDER) | |||||
By:
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Name:
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Title:
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Dated: October __, 2007 |
[Signature
Page to Lender Consent
Letter]
Accepted
and agreed:
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XXXXXX COMMERCIAL PAPER INC., | |||
as Administrative Agent | |||
By:
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Name:
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Title:
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Authorized
Signatory
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[Signature
Page to Lender Consent Letter]