Unassociated Document


    FIFTH
AMENDMENT TO CREDIT AGREEMENT

    


    FIFTH
AMENDMENT TO CREDIT AGREEMENT, dated as of February 4, 2009 (this “Amendment”), to the
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November 15, 2006 (as amended
by the First Amendment, Consent and Waiver dated as of October 10, 2007, the
Second Amendment to Credit Agreement dated as of May 12, 2008, the letter
agreement dated September 18, 2008, the Third Amendment to Credit Agreement
dated as of October 24, 2008 and the Fourth Amendment to Credit Agreement dated
as of January 14, 2009, collectively, the “Existing Credit
Agreement”), among BROOKDALE SENIOR LIVING INC., a Delaware corporation
(the “Borrower”), the
several banks and other financial institutions or entities parties to the
Existing Credit Agreement (the “Lenders”), LEHMAN
BROTHERS INC. and CITIGROUP GLOBAL MARKETS INC., as joint lead arrangers and
joint bookrunners (in such capacity, the “Joint Lead
Arrangers”), GOLDMAN 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”), GOLDMAN
SACHS CREDIT PARTNERS L.P. and CITICORP NORTH AMERICA, INC., as co-documentation
agents (in such capacity, the “Co-Documentation
Agents”), and BANK OF
AMERICA, N.A., as administrative agent under the Existing Credit Agreement (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 Existing Credit Agreement
as set forth herein; and

    


    WHEREAS,
the Lenders have agreed to amend the Existing 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
Existing Credit Agreement and used herein shall have the meanings given to them
in the Existing Credit Agreement.  The term “Amended Credit Agreement”
means the Existing Credit Agreement, as amended hereby.

    


    2.           
Amendments to Section
7.1.  Section 7.1 of the Existing Credit Agreement is hereby
amended as follows:

    


    (a)           Section
7.1(b) of the Existing 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

                          Adjusted
      Leverage

                          Ratio

                        

                      
	
                        FQ4
      2006 through FQ2 2007

                      	 	
                        8.75
      to 1.00

                      
	
                        FQ3
      2007 through FQ4 2007

                      	 	
                        8.25
      to 1.00

                      
	
                        FQ1
      2008 and each fiscal quarter thereafter

                      	 	
                        8.00
      to 1.00

                      


              

            

          

        

      

       

    

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

     

    (b)           Section
7.1(c) of the Existing 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

                        Fixed
      Charge

                        Coverage
      Ratio

                      

                    
	
                      FQ4
      2006 through FQ2 2007

                    	 	
                      1.20
      to 1.00

                    
	
                      FQ3
      2007 through FQ4 2007

                    	 	
                      1.25
      to 1.00

                    
	
                      FQ1
      2008 and each fiscal quarter thereafter

                    	 	
                      1.30
      to 1.00

                    


            

          

        

      

    

    


    


    3.           Conditions to
Effectiveness.  This Amendment shall become effective as of
December 31, 2008 on the date on which all of the conditions set forth in this
Section have been satisfied (the “Fifth Amendment Effective
Date”).

    


    (a)           Execution of Counterparts of
Amendment.  The Administrative Agent shall have received
counterparts of this Amendment, which collectively shall have been duly executed
on behalf of the Borrower, each Subsidiary Guarantor, the Administrative Agent
and the Required Lenders.

    


    4.           Representations and
Warranties.  The
Borrower hereby represents and warrants to the Administrative Agent and each
Lender that as of the Fifth 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.

    


    (b)           Each
Loan Party has taken all necessary corporate or other action to authorize the
execution, delivery and performance of this Amendment.  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 this
Amendment, or the execution, delivery, performance, validity or enforceability
of this Amendment, except consents, authorizations, filings and notices which
have been obtained or made and are in full force and effect.  This
Amendment has been duly executed and delivered on behalf of each Loan Party that
is a party hereto.  This Amendment and 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).

    


    (c)           The
execution, delivery and performance of this Amendment 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 Fifth Amendment Effective Date as if made on and as of such date,
unless such representation or warranty 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

     

    is
qualified by “materiality” or “Material Adverse Effect” or similar language, in
which case, such representation or warranty is true and correct in all respects
as of the Fifth Amendment Effective Date (except that, in either case, any
representation or warranty which by its terms is made as of an earlier date
shall be true and correct 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 Fifth 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.

    


    5.           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).

    


    6.           Limited
Effect.  Except as expressly provided hereby, all of the terms
and provisions of the Existing 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 Existing
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.

    


    7.           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.

    


    8.           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.  Delivery of an executed signature page of this Amendment
by facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof.

    


    9.           Binding
Effect.  The execution and delivery of this Amendment 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).

    


    10.           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.

    


    11.           Reaffirmation of Guaranty
and Pledge.  The Borrower and each Subsidiary Guarantor hereby
(a) consents to the transactions contemplated by this 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 this
Amendment.

    
 

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    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.

    


    
      
        
          	
                  BORROWER:

                	 
      	
                  BROOKDALE
      SENIOR LIVING INC.

                
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      	
                  By:

                	
                  /s/
      T. Andrew Smith

                	 
      
	 
      	 
      	 
      	
                  Name:

                	
                  T.
      Andrew Smith

                
	 
      	 
      	 
      	
                  Title:

                	
                  Executive
      Vice President

                


        

      

    

    


    


    
      
        	
                SUBSIDIARY
      GUARANTORS:

              	 
      	
                BROOKDALE
      LIVING COMMUNITIES, INC.

              
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      	
                By:

              	
                /s/
      T. Andrew Smith

              	 
      
	 
      	 
      	 
      	
                Name:

              	
                T.
      Andrew Smith

              
	 
      	 
      	 
      	
                Title:

              	
                Executive
      Vice President

              


      

    

    


    


    
      	 
      	 
      	
              AMERICAN
      RETIREMENT CORPORATION

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      	
              By:

            	
              /s/
      T. Andrew Smith

            	 
      
	 
      	 
      	 
      	
              Name:

            	
              T.
      Andrew Smith

            
	 
      	 
      	 
      	
              Title:

            	
              Executive
      Vice President

            


    

    


    


    
      	 
      	 
      	
              FEBC-ALT
      INVESTORS LLC

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      	
              By:

            	
              /s/
      T. Andrew Smith

            	 
      
	 
      	 
      	 
      	
              Name:

            	
              T.
      Andrew Smith

            
	 
      	 
      	 
      	
              Title:

            	
              Executive
      Vice President

            


    

    


    


    
      	 
      	 
      	
              FEBC-ALT
      HOLDINGS INC.

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      	
              By:

            	
              /s/
      T. Andrew Smith

            	 
      
	 
      	 
      	 
      	
              Name:

            	
              T.
      Andrew Smith

            
	 
      	 
      	 
      	
              Title:

            	
              Executive
      Vice President

            


    

    


    


    
      	 
      	 
      	
              ALTERRA
      HEALTHCARE CORPORATION

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      	
              By:

            	
              /s/
      T. Andrew Smith

            	 
      
	 
      	 
      	 
      	
              Name:

            	
              T.
      Andrew Smith

            
	 
      	 
      	 
      	
              Title:

            	
              Executive
      Vice President

            


    

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    

    
 

    
      
        
          	
                  ADMINISTRATIVE AGENT

                	 
      	 
      
	
                  AND
      LENDERS:

                	 
      	
                  BANK
      OF AMERICA, N.A., as Administrative Agent

                
	 
      	 
      	
                  and
      as a Lender

                
	 
      	 
      	 
      
	 
      	 
      	 
      	
                  By:

                	
                  /s/
      Zubin R. Shroff

                	 
      
	 
      	 
      	 
      	
                  Name:

                	
                  Zubin
      R. Shroff

                
	 
      	 
      	 
      	
                  Title:

                	
                  Vice
      President

                


        

      

    

    


    



    
      
         


      

      
         


        
          

        

      

      
         


      

    

    
 

    
      
        
          	 
      	 
      	 
      
	 
      	 
      	
                  FORTRESS
      CREDIT OPPORTUNITIES I LP,

                	 
      
	 
      	 
      	
                  as
      a Lender

                
	 	 	 	 
	 
      	 
      	
                  By:

                	
                  Fortress
      Credit Opportunities I GP LLC

                
	 
      	 
      	 
      
	 
      	 
      	 
      	
                  By:

                	
                  /s/
      Constantine M. Dakolias

                	 
      
	 
      	 
      	 
      	
                  Name:

                	
                  Constantine
      M. Dakolias

                
	 
      	 
      	 
      	
                  Title:

                	
                  President

                


        

      

    

    


    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

     

    


    
      
        
          	 
      	 
      	 
      
	 
      	 
      	
                  FORTRESS
      CREDIT FUNDING III LP,

                	 
      
	 
      	 
      	
                  as
      a Lender

                
	 	 	 	 
	 
      	 
      	
                  By:

                	
                  Fortress
      Credit Funding III GP LLC

                
	 
      	 
      	 
      
	 
      	 
      	 
      	
                  By:

                	
                  /s/
      Constantine M. Dakolias

                	 
      
	 
      	 
      	 
      	
                  Name:

                	
                  Constantine
      M. Dakolias

                
	 
      	 
      	 
      	
                  Title:

                	
                  President

                


        

      

    

    


    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    
 

    
      
        
          	 
      	 
      	 
      
	 
      	 
      	
                  FORTRESS
      CREDIT FUNDING I LP,

                	 
      
	 
      	 
      	
                  as
      a Lender

                
	 	 	 	 
	 
      	 
      	
                  By:

                	
                  Fortress
      Credit Funding I GP LLC

                
	 
      	 
      	 
      
	 
      	 
      	 
      	
                  By:

                	
                  /s/
      Constantine M. Dakolias

                	 
      
	 
      	 
      	 
      	
                  Name:

                	
                  Constantine
      M. Dakolias

                
	 
      	 
      	 
      	
                  Title:

                	
                  President