Exhibit 10.1
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AMENDMENT NO. 2 TO
AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND CERTAIN OF ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT FOR SUCH BANKS,
DEUTSCHE BANK SECURITIES INC.,
AS SYNDICATION AGENT
AND
UBS SECURITIES LLC
(AS SUCCESSOR-IN-INTEREST TO UBS WARBURG LLC),
AS DOCUMENTATION AGENT
AUGUST 26, 2003
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KEYBANK NATIONAL ASSOCIATION
AND
DEUTSCHE BANK SECURITIES INC.,
AS JOINT LEAD ARRANGERS AND JOINT BOOK MANAGERS
AMENDMENT NO. 2 TO AMENDED AND RESTATED LOAN AGREEMENT
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AGREEMENT (this "AMENDMENT NO. 2"), made as of the 26th day of August,
2003, by and among:
HEALTH CARE REIT, INC., a Delaware corporation, and each of the
other entities listed on Exhibit 1 annexed hereto (individually, a "BORROWER"
and collectively, THE "BORROWERS");
The Banks that have executed the signature pages hereto (individually,
a "BANK" and, collectively, the "BANKS"); and
KEYBANK NATIONAL ASSOCIATION, a national banking association, as
Administrative Agent for the Banks (in such capacity, together with its
successors in such capacity, the "AGENT").
W I T N E S S E T H:
WHEREAS:
(A) The Borrowers, the Agent, Deutsche Bank Securities Inc., as
Syndication Agent, UBS Warburg LLC, as Documentation Agent and the banks
signatory thereto entered into a certain Amended and Restated Loan Agreement
dated August 23, 2002, as amended by Amendment No. 1 to Amended and Restated
Loan Agreement dated as of May 15, 2003 (as so amended, the "ORIGINAL LOAN
AGREEMENT"; the Original Loan Agreement, as amended hereby, and as it may
hereafter be further amended, modified or supplemented, is hereinafter referred
to as the "LOAN AGREEMENT");
(B) The Borrowers wish to amend certain covenants contained in the
Original Loan Agreement and the Banks and the Agent are willing to amend the
Original Loan Agreement on the terms and conditions hereinafter set forth; and
(C) All capitalized terms used herein which are not otherwise defined
herein shall have the respective meanings ascribed thereto in the Original Loan
Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1. AMENDMENTS TO ORIGINAL LOAN AGREEMENT.
SECTION 1.1 The Original Loan Agreement is hereby amended as
follows:
(a) The definition of "Funded Indebtedness" appearing in Article 1
is deleted in its entirety and the following is substituted therefor:
"'Funded Indebtedness' - as of any date of determination
thereof, (i) all Indebtedness of any Person, determined in accordance with
GAAP, which by its terms matures more than one year after the date of
calculation, and any such Indebtedness maturing within one year from such
date which is
renewable or extendable at the option of the obligor to a date more than
one year from such date, including, in any event, the Revolving Credit
Loans, and (ii) the current portion of all such Indebtedness."
(b) Subsection 6.9(a) is deleted in its entirety and the following
is substituted therefor:
"(a) A ratio of Funded Indebtedness to the sum of (x) Tangible
Net Worth, plus (y) Funded Indebtedness (the "LEVERAGE RATIO") of not
more than 0.60:1.00."
(c) Subsection 6.9(d) is deleted in its entirety and the
following is substituted therefor:
"(d) A ratio of Unencumbered Assets to unsecured Indebtedness of
not less than 1.95:1.00."
(d) Subsection 7.1(f) is deleted in its entirety and the following
is substituted therefor:
"(f) In addition to the Indebtedness otherwise permitted under
this Section 7.1, Indebtedness secured by Liens provided that
immediately after giving effect to the incurrence of such
Indebtedness: the total outstanding amount of such Indebtedness of
HCRI, on a consolidated basis, plus the total outstanding amount of
Indebtedness permitted under subsection 7.1(c), does not exceed thirty
(30%) percent of Consolidated Total Assets, and, provided further, the
total outstanding amount of any such Indebtedness which is on a
recourse basis to HCRI or any of its Subsidiaries, plus the total
outstanding amount of Indebtedness permitted under subsection 7.1(c),
does not exceed fifteen (15%) percent of Consolidated Total Assets;
and"
SECTION 1.2 (a) All references in the Original Loan Agreement and
the other Loan Documents to the "Loan Agreement", and also in the case of the
Original Loan Agreement to "this Agreement", shall be deemed to refer to the
Original Loan Agreement, as amended hereby.
(b) The Original Loan Agreement and the other Loan Documents shall
each be deemed amended and supplemented hereby to the extent necessary, if any,
to give effect to the provisions of this Agreement.
ARTICLE 2. REPRESENTATIONS AND WARRANTIES.
(a) The Borrowers hereby confirm, reaffirm and restate to each of
the Banks and the Agent all of the representations and warranties set forth in
Article 3 of the Original Loan Agreement as if such representations and
warranties were made as of the date hereof, except for changes in the ordinary
course of business which, either singly or in the aggregate, would not have a
Material Adverse Effect.
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(b) (i) The execution, delivery and performance by each Borrower
of this Amendment No. 2 are within its organizational powers and have been duly
authorized by all necessary action (corporate or otherwise) on the part of each
Borrower, (ii) this Amendment No. 2 is the legal, valid and binding obligation
of each Borrower, enforceable against each Borrower in accordance with its
respective terms, and (iii) the execution, delivery and performance by each
Borrower of this Amendment No. 2 does not: (A) contravene the terms of any
Borrower's organizational documents, (B) conflict with or result in a breach or
contravention of, or the creation of any lien under, any document evidencing any
contractual obligation to which any Borrower is a party or any order,
injunction, writ or decree to which any Borrower or its property is subject, or
(C) violate any requirement of law.
ARTICLE 3. CONDITIONS TO EFFECTIVENESS OF THIS AGREEMENT.
This Amendment No. 2 shall become effective on the date of the
fulfillment (to the satisfaction of the Agent) of the following conditions
precedent:
(a) This Amendment No. 2 shall have been executed and delivered
to the Agent by a duly authorized representative of the Borrowers, the
Agent and the Required Banks.
(b) The Borrowers shall pay to the Agents all fees payable to the
Banks in connection with this Amendment No. 2.
(c) All legal matters incident hereto shall be satisfactory to
the Agent and its counsel.
ARTICLE 4. MISCELLANEOUS.
SECTION 4.1 Article 10 of the Original Loan Agreement. The
miscellaneous provisions under Article 10 of the Original Loan Agreement,
together with the definition of all terms used therein, and all other sections
of the Original Loan Agreement to which Article 10 refers are hereby
incorporated by reference as if the provisions thereof were set forth in full
herein, except that (i) the term "Loan Agreement" shall be deemed to refer,
respectively, to the Original Loan Agreement, as amended by this Amendment No.
2, (ii) the term "this Agreement" shall be deemed to refer to this Amendment No.
2; and (iii) the terms "hereunder" and "hereto" shall be deemed to refer to this
Amendment No. 2.
SECTION 4.2 Amendment Fee. In the event that the Required Banks
execute and deliver this Amendment No. 2, the Borrowers shall pay to the Agent
for the benefit of each Bank that executes and delivers this Amendment No. 2 no
later than 5:00 p.m. on Tuesday, August 26, 2003 (the "AMENDMENT FEE DATE"), a
non-refundable amendment fee equal to the product of (a) 0.125% (i.e., 12.5
basis points) multiplied by (b) the Revolving Credit Commitment of such Bank as
of the Amendment Fee Date.
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SECTION 4.3 Continued Effectiveness. Except as amended hereby, the
Original Loan Agreement and the other Loan Documents are hereby ratified and
confirmed in all respects and shall remain in full force and effect in
accordance with their respective terms.
SECTION 4.4 Counterparts. This Amendment No. 2 may be executed by
the parties hereto in one or more counterparts, each of which shall be an
original and all of which shall constitute one and the same agreement.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2
to be duly executed on the date first above written.
HEALTH CARE REIT, INC.
HCRI PENNSYLVANIA PROPERTIES, INC.
HCRI TEXAS PROPERTIES, INC.
HCRI TEXAS PROPERTIES, LTD.
BY HEALTH CARE REIT, INC.,
ITS GENERAL PARTNER
HCRI NEVADA PROPERTIES, INC.
HCRI LOUISIANA PROPERTIES, L.P.
BY HCRI SOUTHERN INVESTMENTS I, INC.,
ITS GENERAL PARTNER
HEALTH CARE REIT INTERNATIONAL, INC.
HCN ATLANTIC GP, INC.
HCN ATLANTIC LP, INC.
HCN BCC HOLDINGS, INC.
HCRI INDIANA PROPERTIES, INC.
HCRI INDIANA PROPERTIES, LLC
BY HEALTH CARE REIT, INC.,
ITS MEMBER
HCRI LIMITED HOLDINGS, INC.
HCRI MASSACHUSETTS PROPERTIES, INC.
HCRI MASSACHUSETTS PROPERTIES TRUST
BY HCRI MASSACHUSETTS PROPERTIES, INC.
ITS TRUSTEE
HCRI HOLDINGS TRUST
BY HCRI MASSACHUSETTS PROPERTIES, INC.
ITS TRUSTEE
HCRI NORTH CAROLINA PROPERTIES, LLC
BY NORTH CAROLINA PROPERTIES I, INC.
ITS MEMBER
HCRI SOUTHERN INVESTMENTS I, INC.
HCRI TENNESSEE PROPERTIES, INC.
PENNSYLVANIA BCC PROPERTIES, INC.
HCRI KENTUCKY PROPERTIES, LLC
BY HEALTH CARE REIT, INC.
ITS MEMBER
HCRI MASSACHUSETTS PROPERTIES TRUST II
BY HCRI MASSACHUSETTS PROPERTIES, INC.
ITS TRUSTEE
HCRI SATYR HILL, LLC
BY HEALTH CARE REIT, INC., AS THE MEMBER OF
HCRI MARYLAND PROPERTIES, LLC
ITS MEMBER
HCRI FRIENDSHIP, LLC
BY HEALTH CARE REIT, INC., AS THE MEMBER OF
HCRI MARYLAND PROPERTIES, LLC
ITS MEMBER
HCRI ST. CHARLES, LLC
BY HEALTH CARE REIT, INC., AS THE MEMBER OF
HCRI MARYLAND PROPERTIES, LLC
ITS MEMBER
[BORROWERS CONTINUED ON FOLLOWING PAGE]
HCRI MARYLAND PROPERTIES, LLC
BY HEALTH CARE REIT, INC.
ITS MEMBER
HCRI LAUREL, LLC
BY HEALTH CARE REIT, INC., AS THE MEMBER OF
HCRI MARYLAND PROPERTIES, LLC
ITS MEMBER
HCRI NORTH CAROLINA PROPERTIES I, INC.
HCRI NORTH CAROLINA PROPERTIES III, LP
BY HCRI NORTH CAROLINA PROPERTIES II, INC.
ITS GENERAL PARTNER
HCRI NORTH CAROLINA PROPERTIES II, INC.
HCRI WISCONSIN PROPERTIES, LLC
BY HEALTH CARE REIT, INC.
ITS MEMBER
HCRI MISSISSIPPI PROPERTIES, INC.
HCRI ILLINOIS PROPERTIES, LLC
BY HEALTH CARE REIT, INC.
ITS MEMBER
HCRI MISSOURI PROPERTIES, LLC
BY HEALTH CARE REIT, INC.
ITS MEMBER
HCRI SURGICAL PROPERTIES, LLC
BY HEALTH CARE REIT, INC.
ITS MEMBER
HCRI TUCSON PROPERTIES, INC.
BY /S/ GEORGE L. CHAPMAN
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CHIEF EXECUTIVE OFFICER
GEORGE L. CHAPMAN, as Chief Executive Officer of all of the
aforementioned entities, has executed this Amendment No. 2 to Amended and
Restated Loan Agreement and intending that all entities above named are bound
and are to be bound by the one signature as if he had executed this Amendment
No. 2 to Amended and Restated Loan Agreement separately for each of the above
named entities.
Health Care REIT, Inc.
Signature Page to Amendment No. 2 to Amended and Restated Loan Agreement
Dated as of August 26, 2003
KEY CORPORATE CAPITAL INC.,
AS A BANK
By: /s/ F. Donald Kelly III
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Name: F. Donald Kelly III
Title: Vice President
KEYBANK NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT
By: /s/ F. Donald Kelly III
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Name: F. Donald Kelly III
Title: Vice President
Health Care REIT, Inc.
Signature Page to Amendment No. 2 to Amended and Restated Loan Agreement
Dated as of August 26, 2003
DEUTSCHE BANK TRUST COMPANY
AMERICAS
By:/s/ Mary Kay Coyle
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Name: Mary Kay Coyle
Title: Managing Director
Health Care REIT, Inc.
Signature Page to Amendment No. 2 to Amended and Restated Loan Agreement
Dated as of August 26, 2003
BANK OF AMERICA, N.A.
By: /s/ Kevin Wagley
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Name: Kevin Wagley
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Title: Principal
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Health Care REIT, Inc.
Signature Page to Amendment No. 2 to Amended and Restated Loan Agreement
Dated as of August 26, 2003
BANK ONE, N.A.
By: /s/ Jan E. Petrik
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Name: Jan E. Petrik
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Title: First Vice President
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Health Care REIT, Inc.
Signature Page to Amendment No. 2 to Amended and Restated Loan Agreement
Dated as of August 26, 2003
UBS AG, CAYMAN ISLANDS BRANCH
By: /s/ Patricia O'Kicki
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Name: Patricia O'Kicki
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Title: Director
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By: /s/ Luke Goldsworthy
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Name: Luke Goldsworthy
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Title: Associate Director
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Banking Products Services, US
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Health Care REIT, Inc.
Signature Page to Amendment No. 2 to Amended and Restated Loan Agreement
Dated as of August 26, 2003
COMERICA BANK
By: /s/ Dawn M. Morgulec
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Name: Dawn M. Morgulec
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Title: Account Officer
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Health Care REIT, Inc.
Signature Page to Amendment No. 2 to Amended and Restated Loan Agreement
Dated as of August 26, 2003
EXHIBIT 1
TO AMENDMENT NO. 2 TO AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC. AND CERTAIN OF ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION, AS AGENT
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LIST OF BORROWERS
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NAME OF BORROWER STATE OF ORGANIZATION
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Health Care REIT, Inc. Delaware
HCRI Pennsylvania Properties, Inc. Pennsylvania
HCRI Texas Properties, Inc. Delaware
HCRI Texas Properties, Ltd. Texas
HCRI Nevada Properties, Inc. Nevada
HCRI Louisiana Properties, L.P. Delaware
Health Care REIT International, Inc. Delaware
HCN Atlantic GP, Inc. Delaware
HCN Atlantic LP, Inc. Delaware
HCN BCC Holdings, Inc. Delaware
HCRI Indiana Properties, Inc. Delaware
HCRI Indiana Properties, LLC Indiana
HCRI Limited Holdings, Inc. Delaware
HCRI Massachusetts Properties Trust Massachusetts
HCRI Massachusetts Properties, Inc. Delaware
HCRI Holdings Trust Massachusetts
HCRI North Carolina Properties, LLC Delaware
HCRI Southern Investments I, Inc. Delaware
HCRI Tennessee Properties, Inc. Delaware
Pennsylvania BCC Properties, Inc. Pennsylvania
HCRI Kentucky Properties, LLC Kentucky
HCRI Massachusetts Properties II Massachusetts
HCRI Satyr Hill, LLC Virginia
HCRI Friendship, LLC Virginia
HCRI St. Charles, LLC Virginia
HCRI Maryland Properties, LLC Maryland
HCRI Laurel, LLC Maryland
HCRI North Carolina Properties I, Inc. North Carolina
HCRI North Carolina Properties III, LP North Carolina
HCRI North Carolina Properties II, Inc. North Carolina
HCRI Wisconsin Properties, LLC Wisconsin
HCRI Mississippi Properties, Inc. Mississippi
HCRI Illinois Properties, LLC Delaware
HCRI Missouri Properties, LLC Delaware
HCRI Surgical Properties, LLC Ohio
HCRI Tucson Properties, Inc. Delaware