covenants described in Section 9(c)
of the Guaranty and (iii) make such other changes to the Guaranty as are more
particularly set forth herein.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, receipt of which is hereby acknowledged, Guarantor and Lender
agree as follows:
1.
GUARANTOR AND LENDER 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.
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 ENTITY OF WHICH A MAJORITY OF THE
SHARES OF SECURITIES OR OTHER INTERESTS HAVING ORDINARY VOTING POWER FOR THE
ELECTION OF DIRECTORS OR OTHER GOVERNING BODY (OTHER THAN SECURITIES OR
INTERESTS HAVING SUCH POWER ONLY BY REASON OF THE HAPPENING OF A CONTINGENCY)
ARE AT THE TIME EITHER DIRECTLY OR INDIRECTLY OWNER BY GUARANTOR OR OTHERWISE
BENEFICIALLY OWNED BY GUARANTOR THROUGH ONE OR MORE INTERMEDIARIES, OR GUARANTOR
HAS THE DIRECT POWER, OR INDIRECT POWER THROUGH ONE OR MORE INTERMEDIARIES, TO
VOTE SUCH SHARES OR INTERESTS."
3.
GUARANTOR HEREBY ACKNOWLEDGES AND AGREES THAT, PURSUANT TO
THE TERMS OF SECTION 9(C) OF THE GUARANTY, PRIOR TO THE DATE OF THIS AGREEMENT,
GUARANTOR WAS REQUIRED TO COMPLY WITH CERTAIN FINANCIAL COVENANTS MORE
PARTICULARLY