Unassociated Document


    
 

    THIRD
AMENDMENT TO CREDIT AGREEMENT

    


    THIRD
AMENDMENT TO CREDIT AGREEMENT, dated as of October 24, 2008 (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 and the letter
agreement, dated September 18, 2008, 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”), LEHMAN
COMMERCIAL PAPER INC., as administrative agent under the Existing Credit
Agreement (in such capacity, the “Retiring Administrative
Agent”) and BANK OF AMERICA, N.A., as administrative agent under the
Amended Credit Agreement (defined below) (in such capacity, the “Successor Administrative
Agent”).

    


    W I T N E
S S E T H:

    


    WHEREAS,
the Borrower has requested that the Lenders amend the Credit Agreement as set
forth herein; 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
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.           Amendment to Section
1.1.  Section 1.1 of the Existing Credit Agreement is hereby
amended as follows:

    


    (a)           The
definition of “Bank of America” is hereby deleted in its entirety and replaced
with the following:

    


    “Bank of
America”:  Bank of America, N.A.

    


    (b)           The
definition of “Base Rate” is hereby deleted in its entirety and replaced with
the following:

    


    “Base
Rate”:  for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Effective Rate plus 1/2 of 1% and
(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.”  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 factors, 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 specified in the public announcement of such
change.

    


    (c)           The
definition of “BoA Fee Letter” is hereby deleted in its entirety and replaced
with the following:

    


    “BoA Fee
Letter”:  (i) prior to the Third Amendment Effective Date, the
Fee Letter, dated as of November 15, 2006, between Bank of America and the
Borrower and (ii)  on and after the Third Amendment Effective Date,
that certain letter agreement dated as of October 24, 2008 by and among Bank of
America, LaSalle and the Borrower.

    


    (d)           The
definition of “Eurodollar Base Rate” is hereby deleted in its entirety and
replaced with the following:

    


    “Eurodollar Base
Rate”:  means, for any Interest Period with respect to a
Eurodollar Loan, the rate per annum equal to the British Bankers Association
LIBOR Rate (“BBA
LIBOR”), as published by Reuters (or other commercially available source
providing quotations of BBA LIBOR as designated by the Administrative Agent from
time to time) at approximately 11:00 a.m., London time, two Business Days prior
to the commencement of such Interest Period, for Dollar deposits (for delivery
on the first day of such Interest Period) with a term equivalent to such
Interest Period.  If such rate is not available at such time for any
reason, then the “Eurodollar Base Rate” for such Interest Period shall be the
rate per annum determined by the Administrative Agent to be the rate at which
deposits in Dollars for delivery on the first day of such Interest Period in
same day funds in the approximate amount of the Eurodollar Loan being made,
continued or converted by Bank of America and with a term equivalent to such
Interest Period would be offered by Bank of America’s London Branch to major
banks in the London interbank eurodollar market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.

    


    (e)           The
definition of “Eurodollar Rate” is hereby amended by deleting the words
“(rounded upward to the nearest 1/100th of
1%)”.

    


    (f)           The
definition of “Federal Funds Effective Rate” is hereby deleted in its entirety
and replaced with the following:

    


    “Federal Funds Effective
Rate”:  means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if
such day is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate (rounded upward, if necessary, to a whole multiple
of 1/100 of 1%) charged to Bank of America on such day on such transactions as
determined by the Administrative Agent.


    
      
        
           

        

         


      

      
         


        
          

        

      

      
         


      

    

    
 

    (g)           The
definition of “Interest Payment Date” is hereby deleted in its entirety and
replaced with the following:

     

    “Interest Payment
Date”:  (a) as to any Base Rate Loan, the last Business
Day of each March, June, September and December to occur while such Loan is
outstanding and the final maturity date of such Loan, (b) as to any
Eurodollar Loan having an Interest Period of three months or shorter, the last
Business Day of such Interest Period, (c) as to any Eurodollar Loan having
an Interest Period longer than three months, each day that is three months, or a
whole multiple thereof, after the first day of such Interest Period and the last
Business Day of such Interest Period and (d) as to any Loan (other than any
Revolving Credit Loan that is a Base Rate Loan), the date of any repayment or
prepayment made in respect thereof.

    


    (h)           The
definition of “L/C Fee Payment Date” is hereby deleted in its entirety and
replaced with the following:

    


    “L/C Fee Payment
Date”:  (x) with respect to the LaSalle L/C Facility,
(i) the last Business Day of each March, June, September and December
during the LaSalle L/C Commitment Period and the last Business Day of the
LaSalle L/C Commitment Period and (ii) if any LaSalle Letter of Credit has
been cash collateralized in accordance with Section 3.1, each date after
the last day of the LaSalle L/C Commitment Period specified by LaSalle to the
Borrower, and (y) with respect to the BoA L/C Facility, (i) the last
Business Day of each March, June, September and December during the Revolving
Credit Commitment Period and the last Business Day of the Revolving Credit
Commitment Period and (ii) if any BoA Letter of Credit has been cash
collateralized in accordance with Section 3A.1(b)(iii), each date after the
last day of the Revolving Credit Commitment Period specified by Bank of America
to the Borrower.

    


    (i)           The
definition of “Loan Documents” is hereby deleted in its entirety and replaced
with the following:

    


    “Loan
Documents”:  this Agreement, the Security Documents, the
LaSalle Letter of Credit Applications, the BoA Letter of Credit Applications,
the Notes and the BoA Fee Letter.

    


    (j)           The
following definitions are hereby added in appropriate alphabetical
order:

    


    “Control”:  the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise.  “Controlling” and “Controlled” have meanings correlative
thereto.  

    


    “Impacted
Lender”:  a Lender as to which (i) the applicable Issuing
Lender believes in good faith that such Lender has defaulted in fulfilling its
obligations under one or more other syndicated credit facilities or (ii) an
entity that Controls such Lender has been deemed insolvent or become subject to
a bankruptcy or other similar proceeding.

    


    “Third Amendment Effective
Date”:  October 24, 2008.


    
      
        
           

        

         


      

      
         


        
          

        

      

      
         


      

    

    
 

    (k)           The
following definitions are hereby deleted in their entirety:  “Swing
Line Commitment”, “Swing Line Lender”, “Swing Line Loans”, “Swing Line Note” and
“Swing Line Participation Amount”.

    


    3.           Amendment to Section
2.3.  Section 2.3 of the Existing Credit Agreement is hereby
deleted in its entirety and replaced with the following:

    


    2.3           [Intentionally
Deleted]

    


    4.           Amendment to Section
2.4.  Section 2.4 of the Existing Credit Agreement is hereby
deleted in its entirety and replaced with the following:

    


    2.4           [Intentionally
Deleted]

    


    5.           Amendment to Section
2.7.  Section 2.7 of the Existing Credit Agreement is hereby
deleted in its entirety and replaced with the following:

    


    2.7           Commitment Fees,
etc.   (a) The
Borrower agrees to pay to the Administrative Agent for the account of each
Revolving Credit Lender a commitment fee for the period from and including the
Closing Date to the last day of the Revolving Credit Commitment Period, computed
at the Revolving Loan Commitment Fee Rate on the daily amount of the Available
Revolving Credit Commitment of such Lender during the period for which payment
is made, payable quarterly in arrears on the last Business Day of each March,
June, September and December and on the Revolving Credit Termination Date,
commencing on the first of such dates to occur after the date
hereof.

    


    (b)           The
Borrower agrees to pay to LaSalle a commitment fee for the period from and
including the Closing Date to the last day of the LaSalle L/C Commitment Period,
computed at 0.25% per annum on the daily amount of the Available LaSalle L/C
Commitment during the period for which payment is made, payable quarterly in
arrears on the last Business Day of each March, June,
September and December and on the LaSalle L/C Termination Date, commencing on
the first of such dates to occur after the date hereof.

    


    (c)           The
Borrower agrees to pay to the Administrative Agent the fees in the amounts and
on the dates from time to time agreed to in writing by the Borrower and the
Administrative Agent.

    


    6.           Amendment to Section
3A.1(d)(v).  Section 3A.1(d)(v) of the Existing Credit
Agreement is hereby deleted in its entirety and replaced with the
following:

    


    (v)           a
default of any Revolving Credit Lender’s obligations to fund under
Section 3A.3(c) exists or any Revolving Credit Lender is at such time a
Defaulting Lender or an Impacted Lender, unless Bank of America has entered into
arrangements satisfactory to Bank of America with the Borrower or such Lender to
eliminate Bank of America’s risk with respect to such Lender.

    


    7.           Amendment to Section
7.3.  Section 7.3 of the Existing Credit Agreement is hereby
amended by adding a new clause (n) to the end thereof which shall read as
follows:


    
      
        
           

        

         


      

      
         


        
          

        

      

      
         


      

    

    
 

    (n)           Liens,
if any, in favor of an Issuing Lender to cash collateralize or otherwise secure
the obligations of a Defaulting Lender or an Impacted Lender to fund risk
participations hereunder.

    


    8.           Amendment to Section
9.9.  Section 9.9 of the Existing Credit Agreement is hereby
amended by adding the following language to the end thereof:

    


    Any
resignation by Bank of America as Administrative Agent pursuant to this Section
9.9 shall also constitute its resignation as an Issuing Lender.  Upon
the acceptance of a successor’s appointment as Administrative Agent hereunder,
(i) such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring Issuing Lender (unless the
Borrower, the Administrative Agent and another Lender agree that such other
Lender shall serve in such capacity),(ii) the retiring Issuing Lender shall be
discharged from any and all of its future duties and obligations hereunder or
under the other Loan Documents, and (iii) the successor Issuing Lender shall
issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangements
satisfactory to the retiring Issuing Lender to effectively assume the
obligations of the retiring Issuing Lender with respect to such Letters of
Credit.

    


    In
the event that Administrative Agent is a Defaulting Lender, the Borrower (with
the approval of the Required Lenders) or the Required Lenders (with the approval
of the Borrower, which approval shall not be unreasonably
withheld)  shall have the right to remove and replace the
Administrative Agent, whereupon
such successor agent shall succeed to the rights, powers and duties of the
Administrative Agent, and the term “Administrative
Agent” shall mean such
successor agent effective upon such appointment and approval, and the former
Administrative Agent’s rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans.  After the removal and replacement of any
Administrative Agent, the provisions of this Section 9 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan
Documents.

    


    9.           Amendment to Section
10.2.  Section 10.2 of the Existing Credit Agreement is hereby
amended by deleting the notice information for the Administrative Agent and
replacing it with the following:

    


    
      	
               
      

            	
              The
      Administrative Agent:

            


    

    


    
      	
               
      

            	
              Administrative Agent’s
      Office

            


    

    
      	
               
      

            	
              (for
      payments and Requests for Extensions of
Credit):

            


    

    Bank
of America, N.A.

    101
N. Tryon Street

    Mail
Code: NC1-001-04-39

    Charlotte,
North Carolina 28255

    Attention:  Elizabeth
Garver

    Telephone:  704-386-8451

    Telecopier:  704-409-0004

    Electronic
Mail:  elizabeth.garver@bankofamerica.com

    


    Payment
instructions:


    
      
        
           

        

         


      

      
         


        
          

        

      

      
         


      

    

    
 

    ABA#
026009593

    Account
No.:  1366212250600

    Account
Name:  Corporate Credit Services

    Ref:  Brookdale
Senior Living

    


    Other Notices as
Administrative Agent:

    Bank
of America, N.A.

    Agency
Management

    1455
Market Street

    Mail
Code: CA5-701-05-19

    San
Francisco, CA  94103

    Attention:  Kevin
Ahart

    Telephone:  415-436-2750

    Telecopier:  415-503-5000

    Electronic
Mail: kevin.ahart@bankofamerica.com

    


    10.           Amendment to Section
10.7(a).  Section 10.7(a) of the Existing Credit Agreement is
hereby deleted in its entirety and replaced with the following:

    


    10.7  Adjustments;
Set-off.    (a)
Except to the extent that this Agreement provides for payments to be allocated
to a particular Lender or to the Lenders under a particular Facility, if any
Lender (a “Benefitted
Lender”) shall at any time receive any payment of all or part of the
Obligations owing to it or receive any collateral in respect thereof (excluding
any amounts received by an Issuing Lender to secure the obligations of a
Defaulting Lender or an Impacted Lender to fund risk participations hereunder)
(whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 8(f) or otherwise), in a
greater proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender’s Obligations, such Benefitted
Lender shall purchase for cash from the other Lenders a participating interest
in such portion of each such other Lender’s Obligations, or shall provide such
other Lenders with the benefits of any such collateral, as shall be necessary to
cause such Benefitted Lender to share the excess payment or benefits of such
collateral ratably with each of the Lenders; provided, however, that if all
or any portion of such excess payment or benefits is thereafter recovered from
such Benefitted Lender, such purchase shall be rescinded, and the purchase price
and benefits returned, to the extent of such recovery, but without
interest.

    


    11.           Addition of New Section
10.19.  A new Section 10.19 is hereby added at the end of
Section 10 of the Existing Credit Agreement which shall read as
follows:

    


    10.19  Replacement of
Lenders.  If
(a) any Lender requests compensation under Section 2.17 or 2.20, (b) any Lender
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.18, (c) any Lender
is a Defaulting Lender or (d) any Lender (other than Bank of America) fails to
consent to any proposed amendment, modification, termination, waiver or consent
with respect to any provision hereof or of any other Loan Document that requires
the unanimous approval of all of the Lenders, the approval of all of the Lenders
affected thereby or the approval of a class of Lenders, in each case in
accordance with the terms of Section 10.1, then the Borrower may, at its sole
expense and effort, upon notice to such Lender and the Administrative Agent,
require such Lender to assign and delegate, without recourse (in accordance with
and subject to the restrictions contained 


    
      
        
           

        

         


      

      
         


        
          

        

      

      
         


      

    

     

     

    in,
and consents required by, Section 10.6), all of its interests, rights and
obligations under this Agreement and the related Loan Documents to an assignee
that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment), provided that:

    


    (a)           the
Borrower shall have paid to the Administrative Agent the registration and
processing fee specified in Section
10.6(e);

    


    (b)           such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and advances with respect to the Letters of Credit,
accrued interest thereon, accrued fees and all other amounts payable to it
hereunder and under the other Loan Documents from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts);

    


    (c)           in
the case of any such assignment resulting from a claim for compensation under
Section 2.17 or 2.20 or payments required to be made pursuant to Section 2.18,
such assignment will result in a reduction in such compensation or payments
thereafter;

    


    (d)           such
assignment does not conflict with applicable Laws; and

    


    (e)           in
the case of any such assignment resulting from an amendment, waiver or consent
not approved by the assigning Lender, (i) the consent of the Required Lenders
shall have been obtained with respect to such amendment, waiver or consent and
(ii) the assignee has agreed to approve such amendment, waiver or
consent.

    


    A
Lender shall not be required to make any such assignment or delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrower to require such assignment and delegation cease to
apply.

    


    12.           Omnibus Amendment to Delete
Swing Line.  It is the intention of the parties hereto that the
swing line subfacility be removed as of the Third Amendment Effective
Date.  In order to effectuate the removal of the swing line
subfacility, all references in the Existing Credit Agreement and the other Loan
Documents to “Swing Line Commitment”, “Swing Line Lender”, “Swing Line Loans”,
“Swing Line Note” and “Swing Line Participation Amount” are hereby deleted and
the sentences where such terms are used are hereby modified as appropriate to
read as they would with the concept of the swing line subfacility
removed.

    


    13.           Change in Name of Alterra
Healthcare Corporation.  Notwithstanding anything to the
contrary contained in the Loan Documents, the Borrower shall have the right to
change the name of Alterra Heathcare Corporation to “Brookdale Senior Living
Communities, Inc.” or such other name acceptable to the Borrower provided that,
prior to the effective date of such name change, the Borrower shall have
delivered to the Administrative Agent a replacement Guarantee and Pledge
Agreement or Pledge Agreement Supplement effective to maintain or create in
favor of the Administrative Agent, for the benefit of the Secured Parties, a
legal, valid and enforceable security interest in 49% of the common stock of
such entity.


    
      
        
           

        

         


      

      
         


        
          

        

      

      
         


      

    

    
 

    14.           Conditions to
Effectiveness.  This Amendment shall become effective upon the
date (the “Third
Amendment Effective Date”) on which all of the conditions set forth in
this Section have been satisfied.

    


    (a)           Execution of Counterparts of
Amendment.  The Successor Administrative Agent shall have
received counterparts of this Amendment, which collectively shall have been duly
executed on behalf of each of the parties hereto.

    


    (b)           Acknowledgment and
Consent.  The Successor Administrative Agent shall have
received an Acknowledgment and Consent, substantially in the form of Exhibit A hereto (an
“Acknowledgment and
Consent”), duly executed and delivered by the Borrower and each
Subsidiary Guarantor.

    


    (c)           Lender
Consent.  The Successor Administrative Agent shall have
received a Lender Consent Letter, substantially in the form of Exhibit B hereto (a
“Lender
Consent”), duly executed and delivered by the Required
Lenders.

    


    (d)           Financing
Statements.  The Successor Administrative Agent shall have
received UCC-1 and UCC-3 financing statements for each appropriate jurisdiction
as is necessary, in the Successor Administrative Agent’s reasonable discretion,
to perfect the Successor Administrative Agent’s security interest in the
Collateral or to assign the security interest in the Collateral from the
Retiring Administrative Agent to the Successor Administrative
Agent.

     

    (e)           Stock
Certificates.  The Successor Administrative Agent shall have
received (i) from the Retiring Administrative Agent all stock certificates
representing the shares of Capital Stock pledged pursuant to the Guarantee and
Pledge Agreement, together with an undated stock power for each such certificate
executed in blank by a duly authorized officer of the pledgor thereof, and (ii)
an acknowledgment agreement duly executed by any issuer of Capital Stock pledged
pursuant to the Guarantee and Pledge Agreement that is not itself a party to the
Guarantee and Pledge Agreement in form and substance satisfactory to the
Successor Administrative Agent.

     

    (f)           Evidence of Resignation of
Retiring Administrative Agent.  The Successor Administrative
Agent shall have received evidence that the Retiring Administrative Agent has
effectively resigned in accordance with the terms of the Existing Credit
Agreement, which evidence shall be satisfactory to the Successor Administrative
Agent in its sole discretion.

    


    (g)           Receipt of
Register.  The Successor Administrative Agent shall have
received from the Retiring Administrative Agent a copy of the Register
reflecting the names of the Lenders, their Commitments and the outstanding
amount of all Obligations.

    


    (h)           Payment of
Fees.  The Successor Administrative Agent shall have received
the fees set forth in the Fee Letter (as defined in the Amended Credit
Agreement) and reasonable fees, disbursements and other charges of counsel to
the Successor Administrative Agent.

    


    (i)           Administrative Details
Forms.  The Successor Administrative Agent shall have received
from each Lender an Administrative Details Reply Form in form and substance
satisfactory to the Successor Administrative Agent.

    



    
      
        
           

        

         


      

      
         


        
          

        

      

      
         


      

    


     

    
      (j)           Incumbency
Certificate.  The Successor
Administrative Agent shall have received from the Borrower a certificate of
incumbency dated as of the Third Amendment
Effective Date.

       

    

    15.           Resignation and Appointment
of Administrative Agent.  Lehman Commercial Paper Inc.
delivered notice to the Lenders on October 10 of its intention to resign as
Administrative Agent under the Loan Documents (including, without limitation,
the Existing Credit Agreement).  Bank of America, N.A. desires, as of
the Third Amendment Effective Date, to be appointed as the Administrative Agent
under the Loan Documents as amended hereby.  The Borrower, the
Grantors and the Required Lenders by their execution below, their execution of
an Acknowledgment and Consent or their execution of a Lender Consent, as
applicable, hereby waive the ten day notice required by the terms of the
Existing Credit Agreement and appoint and approve the appointment of Bank of
America, N.A., and the resignation of Lehman Commercial Paper Inc. as the
Administrative Agent under the Loan Documents (including, without limitation,
the Existing Credit Agreement) as of the Third Amendment Effective
Date.  The Required Lenders hereby authorize Bank of America, N.A. to
act as Administrative Agent under the Amended Credit Agreement and the Loan
Documents in accordance with Section 9 of the Credit Agreement.

    


    16.           Release.  The
Borrower, each other Grantor and each Lender hereby release, acquit and forever
discharge Bank of America, N.A., and all officers, directors, agents, employees,
successors and assigns of Bank of America, N.A., from any and all liabilities,
claims, demands, actions or causes of action of any kind or nature (if there be
any), whether absolute or contingent, disputed or undisputed, at law or in
equity, or known or unknown, that any of them may have or ever have had against
Bank of America, N.A. arising under or in connection with any of the Loan
Documents as a result of the actions or inaction of Lehman Commercial Paper Inc.
in its capacity as the Retiring Administrative Agent or Swing Line
Lender.

    


    17.           Representations and
Warranties.  The
Borrower hereby represents and warrants to the Administrative Agent and each
Lender that as of the Third 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 consents, authorizations, filings and notices which have been
obtained or made and are in full force and effect.  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 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 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 Third 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 Third
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 Third 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.

    


    18.           Payment of
Expenses.  The Borrower agrees to pay or reimburse the Retiring
Administrative Agent and the Successor 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), including all costs incurred in connection
with the transfer of the agency function and the Collateral from the Retiring
Administrative Agent to the Successor Administrative Agent.

    


    19.           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.

    


    20.           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.

    


    21.           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 Successor Administrative Agent. Delivery of an
executed signature page of this Agreement or of a Lender Consent Letter by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof.

     

    

      
        
          
             

          

           


        

        
           


          
            

          

        

        
           


        

      

    

    
 

    
      22.           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).

    

     

    23.           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.

    


    [remainder
of page intentionally left blank]


    
      
        
           

        

         


      

      
         


        
          

        

      

      
         


      

    

    
 

    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.

    


    
      	 
      	
              BROOKDALE
      SENIOR LIVING INC.

            
	 
      	 
      	 
      
	 
      	
              By:

            	
              /s/
      T. Andrew Smith

            	 
      
	 
      	 
      	
              Name:

            	
              T.
      Andrew Smith

            	 
      
	 
      	 
      	
              Title:

            	
              Executive
      Vice President

            	 
      


    

    


    


    


    
      	 
      	
              BANK
      OF AMERICA, N.A., as Successor

            
	 
      	
              Administrative
      Agent

            
	 
      	 
      	 
      
	 
      	
              By:

            	
              /s/
      Zubin R. Shroff

            	 
      
	 
      	 
      	
              Name:

            	
              Zubin
      R. Shroff

            	 
      
	 
      	 
      	
              Title:

            	
              Vice
      President

            	 
      


    

    


    


    


    
      	 
      	
              BANK
      OF AMERICA, N.A., as a Lender

            
	 
      	 
      	 
      
	 
      	
              By:

            	
              /s/
      Zubin R. Shroff

            	 
      
	 
      	 
      	
              Name:

            	
              Zubin
      R. Shroff

            	 
      
	 
      	 
      	
              Title:

            	
              Vice
      President

            	 
      


    

    


    



    
      
        
          Signature
Page to Third Amendment to the Credit Agreement

        

         


      

      
         


        
          

        

      

      
         


        
          EXHIBIT A
to

          THIRD AMENDMENT


        

      

    


    


    ACKNOWLEDGMENT
AND CONSENT

    


    Reference
is made to the THIRD AMENDMENT TO CREDIT AGREEMENT, dated as of October 24, 2008
(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 amended
by the First Amendment, Consent and Waiver dated as of October 10, 2007 and the
Second Amendment to Credit Agreement date as of May 12, 2008 and as the same may
be further amended, supplemented, extended or restated, or otherwise modified
from time to time, the “Existing 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 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”), LEHMAN COMMERCIAL PAPER INC., as administrative agent prior to
the effectiveness of the Amendment and BANK OF AMERICA, N.A., as administrative
agent following the effectiveness of the Amendment.  Unless otherwise
defined herein, capitalized terms used herein and defined in the Existing 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 24, 2008.

    


    
      	 
      	
              BROOKDALE
      SENIOR LIVING INC.

            
	 
      	 
      	 
      
	 
      	
              By:

            	
              /s/
      T. Andrew Smith

            	 
      
	 
      	 
      	
              Name:

            	
              T.
      Andrew Smith

            	 
      
	 
      	 
      	
              Title:

            	
              Executive
      Vice President

            	 
      


    

    


    


    
      	 
      	
              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

            	 
      


    

    


    



    
      
        
           

          Signature
Page to Acknowledgment and Consent

        

         


      

      
         


        
          

        

      

      
         


        
          EXHIBIT B
to

          THIRD AMENDMENT


        

      

    


     

    
      LENDER
CONSENT LETTER

    

    BROOKDALE
SENIOR LIVING INC.

    CREDIT
AGREEMENT

    DATED AS
OF NOVEMBER 15, 2006

    


    


    To:          Bank
of America, N.A.

     101
N. Tryon Street

     Mail
Code: NC1-001-04-39

     Charlotte,
North Carolina 28255

    


    


    Ladies
and Gentlemen:

    


    Reference
is made 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 and the Second Amendment to Credit Agreement date as of May 12, 2008
and as the same may be further amended, supplemented, extended or restated, or
otherwise modified from time to time, the “Existing 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 the Existing Credit Agreement (the “Lenders”), LEHMAN
BROTHERS INC. and CITIGROUP GLOBAL MARKETS INC., as advisors, 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”), LEHMAN
COMMERCIAL PAPER INC., as administrative agent prior to the effectiveness of the
Amendment (defined below) and BANK OF AMERICA, N.A., as administrative agent
following the effectiveness of the Amendment.  Unless otherwise
defined herein, capitalized terms used herein and defined in the Existing Credit
Agreement are used herein as therein defined.

    


    The
Borrower has requested that the Required Lenders consent to amend the provisions
of the Existing Credit Agreement solely on the terms described in the Third
Amendment to Credit Agreement, dated as of October 24, 2008, 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 Existing Credit Agreement, the undersigned Lender hereby
consents to the execution by the Administrative Agent of the
Amendment.


    
      
        
           

        

         


      

      
         


        
          

        

      

      
         


      

    


    
      	 
      	
              Very
      truly yours,

            
	 
      	 
      
	 
      	 
      
	 
      	 
      	 
      
	 
      	
              (NAME
      OF LENDER)

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              By:

            	 
      	 
      
	 
      	 
      	
              Name:

            	 
      	 
      
	 
      	 
      	
              Title:

            	 
      	 
      
	
              Dated:  October
      ___, 2008

            	 
      	 
      	 
      	 
      


    

    


    


     

     

     

     

     

    
      Signature
Page to Lender Consent Letter