which have occurred under those
certain financial covenants described in Section 9(c) of the Guaranty for the
fiscal year ending December 31, 2009 (iii) revise the financial covenants
described in Section 9(c) of the Guaranty and (iv) make such other changes to
the Guaranty as are more particularly set forth herein.
G.
As a condition precedent to the agreements referenced above,
Agent has required this Agreement be executed and delivered to Agent on behalf
of Lenders.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, receipt of which is hereby acknowledged, Guarantor, Agent and
Lenders agree as follows:
1.
GUARANTOR, AGENT AND LENDERS AGREE THAT THE RECITALS ABOVE
ARE A PART OF THIS AGREEMENT.
UNLESS OTHERWISE EXPRESSLY DEFINED IN THIS
AGREEMENT, TERMS DEFINED IN THE LOAN AGREEMENT SHALL HAVE THE SAME MEANING UNDER
THIS AGREEMENT.
2.
GUARANTOR, AGENT AND LENDERS HEREBY ACKNOWLEDGE AND AGREE
THAT FROM AND AFTER THE DATE HEREOF, THE MAXIMUM PRINCIPAL AMOUNT OF THE LOAN
SHALL BE TWENTY-FOUR MILLION FIVE HUNDRED THIRTY-EIGHT THOUSAND DOLLARS
($24,538,000).
ALL REFERENCES CONTAINED IN THE GUARANTY TO "THIRTY MILLION
DOLLARS" SHALL BE READ AS "TWENTY-FOUR MILLION FIVE HUNDRED THIRTY-EIGHT
THOUSAND DOLLARS" AND ALL REFERENCES TO THE AMOUNT "$30,000,000" SHALL BE READ
AS "$24,538,000".
3.
THE GUARANTY IS HEREBY AMENDED AS FOLLOWS:
(A)
SECTION 9(C) (COVENANTS) OF THE GUARANTY IS HEREBY AMENDED
AND RESTATED IN ITS ENTIRETY AS FOLLOWS:
"(C)
GUARANTOR HEREBY COVENANTS AND AGREES THAT IT WILL COMPLY WITH (I) THE
FOLLOWING FINANCIAL COVENANTS CONTAINED IN THE SUNRISE SENIOR FINANCING
AGREEMENT (AS DEFINED IN THE LOAN AGREEMENT) PROVIDED THAT LENDER HEREBY AGREES
THAT IT WILL CONSENT TO ANY WAIVER OR MODIFICATION OF SUCH COVENANTS TO WHICH
THE SUNRISE BANK GROUP (AS DEFINED IN THE LOAN AGREEMENT) CONSENTS SO LONG AS
LENDER IS A MEMBER OF THE SUNRISE BANK GROUP AND GUARANTOR, BORROWER AND LENDER
SHALL NEGOTIATE REPLACEMENT COVENANTS ACCEPTABLE TO LENDER IF LENDER CEASES TO
BE A MEMBER OF THE SUNRISE BANK GROUP:
(I)
CASH BALANCE.
GUARANTOR AND SSLMI (AS DEFINED IN THE LOAN
AGREEMENT) SHALL MAINTAIN, TESTED AS OF THE LAST DAY OF EACH CALENDAR MONTH, A
CASH BALANCE OF NOT LESS THAN TEN MILLION AND NO/100 DOLLARS ($10,000,000.00).
A VIOLATION OF THIS REQUIREMENT FOR ANY MONTH MAY BE CURED WITHIN FIFTEEN (15)
DAYS OF THE LAST DAY OF SUCH MONTH AND SHALL NOT CONSTITUTE AN EVENT OF DEFAULT
UNLESS NOT CURED BY SUCH DAY.
GUARANTOR AND ITS SUBSIDIARIES SHALL MAINTAIN
SUBSTANTIALLY ALL OF THEIR UNRESTRICTED DOMESTIC CASH IN ACCOUNTS WITH BANK OF
AMERICA, N.A., A NATIONAL BANKING ASSOCIATION.
THE FOLLOWING DEFINITIONS SHALL APPLY TO THIS SECTION 9(C):
"CASH BALANCE" MEANS THE AGGREGATE AMOUNT OF UNRESTRICTED CASH OF GUARANTOR AND
SSLMI ON DEPOSIT WITH BANK OF AMERICA, N.A., A NATIONAL BANKING ASSOCIATION.
FOR THE AVOIDANCE OF DOUBT, CASH DEPOSITS CONTAINED IN ANY ESCROW, PLEDGED,
HYPOTHECATED, ASSIGNED OR RESTRICTED ACCOUNTS SHALL NOT BE INCLUDED IN THE
CALCULATION OF CASH BALANCE."
"SUBSIDIARY" OF GUARANTOR MEANS A CORPORATION, PARTNERSHIP, JOINT VENTURE,
LIMITED LIABILITY COMPANY OR OTHER BUSINESS