Exhibit 10.1
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AMENDMENT NO. 1 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 WARBURG LLC,
AS DOCUMENTATION AGENT
MAY 15, 2003
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KEYBANK NATIONAL ASSOCIATION
AND
DEUTSCHE BANK SECURITIES INC.,
AS JOINT LEAD ARRANGERS AND JOINT BOOK MANAGERS
AMENDMENT NO. 1 TO AMENDED AND RESTATED LOAN AGREEMENT
AGREEMENT (this "AMENDMENT NO. 1"), made as of the 15th day of May,
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 "Original Borrowers" set forth on Exhibit 1 annexed hereto
(the "ORIGINAL 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 (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) Pursuant to subsection 7.8(b) of the Original Loan Agreement,
HCRI is required to cause each newly-created Subsidiary to become a party to the
Loan Agreement and in connection therewith, the Original Borrowers desire that
each such newly-created Subsidiary listed on Exhibit 1 under the caption
"ADDITIONAL BORROWERS" be added as a "Borrower" under the Loan Agreement;
(C) The Borrowers wish to amend the Original Loan Agreement to,
among other things, (i) increase the Total Revolving Credit Commitment, and (ii)
extend the Revolving Credit Commitment Termination Date, and the Banks and the
Agent are willing to amend the Original Loan Agreement on the terms and
conditions hereinafter set forth;
(D) Certain of the Banks desire to increase their respective
Revolving Credit Commitment to the amount set forth opposite their name on their
respective signature page hereto and the Borrowers desire to accept such
increased Revolving Credit Commitments; and
(E) 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. CHANGE IN REVOLVING CREDIT COMMITMENTS; ADDITIONAL
BORROWERS.
SECTION 1.1 REVOLVING CREDIT COMMITMENTS. From and after
the date hereof, for purposes of the Loan Agreement, the Revolving Credit
Commitment of each Bank shall be the amount set forth opposite such Bank's name
on the signature pages hereto under the caption "Revolving Credit Commitment" as
such amount may be increased or reduced pursuant to the terms of the Loan
Agreement, and such amount (if changed) shall supersede and be deemed to amend
the amount of its respective Revolving Credit Commitment as set forth opposite
its name on the signature pages to the Original Loan Agreement.
SECTION 1.2 ADJUSTMENT OF OUTSTANDING LOANS. If any
Loans are outstanding under the Original Loan Agreement on the date hereof, the
Banks shall on the date hereof, at the direction of the Agent, make appropriate
adjustments among themselves in order to insure that the amount (and type) of
the Loans outstanding to the Borrowers from each Bank under the Loan Agreement
(as of the date hereof) are proportionate to the aggregate amount of all of the
Revolving Credit Commitments, after giving effect to the increased amount of the
Revolving Credit Commitments of certain of the Banks hereunder. The Borrowers
agree and consent to the terms of this Section 1.2.
SECTION 1.3 ASSUMPTION BY ADDITIONAL BORROWERS. The
Additional Borrowers hereby: (i) agree to be a party to the Original Loan
Agreement as amended hereby; (ii) assume, on a joint and several basis with the
Original Borrowers, all of the Obligations of a "Borrower" under the Loan
Agreement; (iii) agree to be bound as a "Borrower" by all of the terms of the
Loan Agreement and to perform and discharge all of the obligations of a Borrower
contained in or arising under the terms of the Loan Agreement; and (iv) agree
that the terms "Borrower(s)" and "Loan Party(ies)" are deemed to include each of
the Additional Borrowers.
SECTION 1.4 RELEASE OF CERTAIN ORIGINAL BORROWERS. From
and after the date hereof, each of HCRI Broadview, Inc., HCRI Westlake, Inc.,
HCRI Beachwood, Inc. and HCRI Westmoreland, Inc. (i) shall no longer be bound as
a "Borrower" under the Loan Agreement, (ii) each such entity is hereby released
and discharged from all of the obligations of a "Borrower" contained in and
arising under the terms of the Loan Agreement and the other Loan Documents to
which each is a party, and (iii) none of the foregoing entities may receive the
benefit, directly or indirectly, of any of the proceeds of the Loans under the
Loan Agreement.
ARTICLE 2. AMENDMENTS TO ORIGINAL LOAN AGREEMENT; SUBSTITUTED NOTES.
SECTION 2.1 The Original Loan Agreement is hereby
amended as follows:
(a) The second "WHEREAS" clause appearing on page one of
the Original Loan Agreement is amended by deleting the amount "One Hundred
Seventy-Five Million ($175,000,000) Dollars" appearing therein and substituting
therefor the amount "Two Hundred Twenty-Five Million ($225,000,000) Dollars".
2
(b) The phrase "the aggregate amount set forth opposite
such Bank's name on the signature pages hereof under the caption 'Revolving
Credit Commitment'" appearing in the definition of the term "Revolving Credit
Commitment" in Article 1 shall be deemed to refer to the amount set forth
opposite each Bank's name on the signature pages hereto.
(c) The definition of "Revolving Credit Commitment
Termination Date" appearing in Article 1 is deleted in its entirety and the
following is substituted therefor:
"'Revolving Credit Commitment Termination
Date' - initially, May 15, 2006, or any later date established in
accordance with Section 2.23 hereof."
(d) The definition of "Total Revolving Credit Commitment"
appearing in Article 1 is deleted in its entirety and the following is
substituted therefor:
"'Total Revolving Credit Commitment' - the aggregate
obligation of the Banks to make Loans hereunder up to the aggregate
amount of Two Hundred Twenty-Five Million ($225,000,000) Dollars."
(e) Subsection 2.4(a) is deleted in its entirety and the
following is substituted therefor:
"(a) The Loans made by each Bank shall
be evidenced by a single joint and several promissory note of the
Borrowers in substantially the form of Exhibit A annexed to Amendment
No. 1 to Amended and Restated Loan Agreement dated as of May 15, 2003
("AMENDMENT NO. 1") by and among the Borrowers, the Agent and the Banks
party thereto (each, a "SUBSTITUTED NOTE" and, collectively, the
"SUBSTITUTED NOTES"). Each Substituted Note shall be dated the date of
Amendment No. 1, shall be payable to the order of such Bank in a
principal amount equal to such Bank's Revolving Credit Commitment as in
effect on the date of Amendment No. 1, and shall otherwise be duly
completed. The Substituted Notes shall be payable as provided in
Sections 2.1 and 2.5 hereof."
(f) Section 2.23 is amended by deleting the first
sentence thereof in its entirety and substituting therefor the following:
"Subject to the following provisions, the Borrowers
shall have the option to extend the Revolving Credit Commitment Termination Date
to May 15, 2007."
(g) A new Section 2.24 is added reading as follows:
"SECTION 2.24 INCREASE IN TOTAL REVOLVING CREDIT
COMMITMENT.
"(a) The Borrowers may one time, at their sole
expense and effort and after consulting with the Agent, request: (i)
one or more Banks acceptable to the Agent to increase (in the sole and
absolute discretion of each such Bank) the amount of their respective
Revolving Credit Commitments, and/or (ii) one or more other lending
institutions acceptable to the Agent (each, a "NEW
3
LENDER") to become "Banks" and extend Revolving Credit Commitments
hereunder (each such existing Bank and each New Lender being referred
to as a "PROPOSED LENDER"). To request an increase pursuant to this
Section 2.24 (the "COMMITMENT INCREASE"), the Borrowers shall submit to
the Agent a written increase request signed by the Borrowers and in
form approved by the Agent (the "INCREASE REQUEST"), which shall
specify, as the case may be: (A) each such existing Bank and the amount
of the proposed increase to its Revolving Credit Commitment, or (B) the
proposed Revolving Credit Commitment for each New Lender. Promptly
following receipt of the Increase Request, the Agent shall advise each
Proposed Lender of the details thereof.
(b) If one or more Proposed Lender(s) shall have
unconditionally agreed to such Increase Request in a writing delivered
to the Borrowers and the Agent at any time prior to the 30th day
following the date of the delivery to such Proposed Lenders(s) of the
Increase Request (each such Proposed Lender being hereinafter referred
to as an "INCREMENTAL LENDER"), then: (x) each such Incremental Lender
which shall then be an existing Bank shall have its Revolving Credit
Commitment increased by the amount set forth in the Increase Request,
and (y) each such Incremental Lender which shall then be a New Lender
shall be and become a "Bank" hereunder having a Revolving Credit
Commitment equal to the amount set forth in such Increase Request,
provided, however, that (1) immediately before and after giving effect
thereto, no Default shall or would exist, (2) each such Incremental
Lender shall have executed and delivered to the Agent a supplement to
this Agreement providing for its increased Revolving Credit Commitment
or its Revolving Credit Commitment, as applicable, in form approved by
the Agent, (3) immediately after giving effect thereto, the aggregate
amount of the Total Revolving Credit Commitment shall not exceed
$300,000,000, (4) the increase of the Total Revolving Credit Commitment
specified in the Increase Request shall be in an aggregate amount that
is an integral multiple of $1,000,000 and not less than $5,000,000, (5)
the Revolving Credit Commitment extended by each Incremental Lender
which is a New Lender shall be in a minimum amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof, and (6) the
Commitment Increase shall not be permitted hereunder unless consummated
on or prior to December 31, 2003.
(c) Simultaneously with the Commitment Increase
under this Section 2.24, each Incremental Lender shall, to the extent
necessary, purchase from each other existing Bank, and each other
existing Bank shall sell to each Incremental Lender, in each case at
par and without representation, warranty, or recourse (in accordance
with and subject to the restrictions contained in Section 10.13), such
principal amount of Loans of such other existing Bank(s), together with
all accrued and unpaid interest thereon, as will result, after giving
effect to such transaction, in each Bank's pro rata share of Loans
outstanding being equal to such Lender's pro rata share of the Total
Revolving Credit Commitment, provided that each such assignor Bank
shall have received (to the extent of the interests, rights and
obligations assigned) payment then due and owing of the outstanding
principal amount of its Loans, accrued interest thereon, accrued fees,
4
commissions and all other amounts payable to it under the Loan
Documents from the applicable assignee Banks (to the extent of such
outstanding principal and accrued interest, fees and commissions) or
the Borrowers (in the case of all other amounts)."
SECTION 2.2 In order to evidence the Loans, as amended
hereby, the Borrowers shall execute and deliver to each Bank, simultaneously
with the execution and delivery hereof, a substituted promissory note payable to
the order of such Bank in substantially the form of Exhibit A annexed hereto
(each a "SUBSTITUTED NOTE" and collectively the "SUBSTITUTED NOTES"). Each of
the Banks shall, upon the execution and delivery by the Borrowers of its
applicable Substituted Note as herein provided, mark the Note delivered to it in
connection with the Original Loan Agreement "Replaced by Substituted Note" and
return it to the Borrowers.
SECTION 2.3 (a) All references in the Original Loan
Agreement or any other Loan Document to the "Revolving Credit Commitment(s)",
the "Note(s)" and the "Loan Documents" shall be deemed to refer respectively, to
the Revolving Credit Commitment(s) as amended hereby, the Substituted Note(s)
and the Loan Documents as defined in the Original Loan Agreement together with,
and as amended by this Amendment No. 1, the Substituted Notes and all
agreements, documents and instruments delivered pursuant thereto or in
connection therewith.
(b) 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.
(c) All references in the Substituted Notes to
the "Revolving Credit Commitment Termination Date" shall be deemed to refer to
the Revolving Credit Commitment Termination Date as defined in this Amendment
No. 1.
SECTION 2.4 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 3. REPRESENTATIONS AND WARRANTIES.
(a) (i) 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.
(ii) Schedule 3.1 to the Original Loan Agreement
is hereby amended as set forth in the Addendum to Schedule 3.1 annexed hereto.
Schedules 3.6 and 3.16 to the Original Loan Agreement are hereby deleted in
their entirety and Schedules 3.6 and 3.16 annexed hereto are substituted
therefor.
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(b) (i) The execution, delivery and performance by
each Borrower of this Amendment No. 1 and the Substituted Notes 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. 1
and the Substituted Notes are 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. 1 and the Substituted Notes do 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 4. CONDITIONS TO EFFECTIVENESS OF THIS AGREEMENT.
This Amendment No. 1 shall become effective on the date of the
fulfillment (to the satisfaction of the Agent) of the following conditions
precedent:
(a) This Amendment No. 1 shall have been executed and
delivered to the Agent by a duly authorized representative of the Borrowers, the
Agent and each Bank.
(b) The Borrowers shall have executed and delivered to
each of the Banks its Substituted Note.
(c) The Borrowers shall pay to the Agents (i) all fees
provided for in the fee letter dated April 14, 2003, and (ii) all other fees
payable to the Banks in connection with this Amendment No. 1.
(d) The Agent shall have received a Compliance
Certificate from the Borrowers dated the date hereof and the matters certified
therein, including, without limitation, that after giving effect to the terms
and conditions of this Amendment No. 1, no Default or Event of Default shall
exist, shall be true.
(e) The Agent shall have received copies of the
following:
(i) Copies of all action, corporate or
otherwise, taken by each of the Borrowers to authorize the execution, delivery
and performance of this Amendment No. 1, the Substituted Notes and the
transactions contemplated hereby, certified by its Secretary;
(ii) A certificate from the Secretary of each
Original Borrower to the effect that its organizational documents delivered to
the Agent pursuant to the Original Loan Agreement have not been amended since
the date of such delivery and that each such document is in full force and
effect and is true and correct as of the date hereof;
(iii) The organizational documents of the
Additional Borrowers, certified by the Secretary of State of their respective
states of organization;
6
(iv) Good standing certificates as of a recent
date, with respect to each of the Additional Borrowers from the Secretary of
State of their respective states of incorporation and each state in which each
of them is qualified to do business; and
(v) An incumbency certificate (with specimen
signatures) with respect to each of the Borrowers.
(f) All legal matters incident hereto shall be
satisfactory to the Agent and its counsel.
ARTICLE 5. MISCELLANEOUS.
SECTION 5.1 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 terms "Loan Agreement" and "Note(s)" shall be deemed
to refer, respectively, to the Original Loan Agreement, as amended by this
Amendment No. 1 and the Substituted Note(s), (ii) the term "this Agreement"
shall be deemed to refer to this Amendment No. 1; and (iii) the terms
"hereunder" and "hereto" shall be deemed to refer to this Amendment No. 1.
SECTION 5.2 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 5.3 COUNTERPARTS. This Amendment No. 1 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. 1
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
--------------------------------------------------
CHIEF EXECUTIVE OFFICER
GEORGE L. CHAPMAN, as Chief Executive Officer of all of the
aforementioned entities, has executed this Amendment No. 1 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. 1 to Amended and Restated Loan Agreement separately for each of the above
named entities.
Health Care REIT, Inc.
Signature Page to Amendment No. 1 to Amended and Restated Loan Agreement
Dated as of May 15, 2003
REVOLVING CREDIT COMMITMENT:
$52,500,000 KEY CORPORATE CAPITAL INC.,
AS A BANK
PRO RATA SHARE OF AGGREGATE By: /s/ F. Donald Kelly III
REVOLVING CREDIT COMMITMENTS: ------------------------------------------
Name: F. Donald Kelly III
Title: Vice President
23.333333333%
KEYBANK NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT
By: /s/ F. Donald Kelly III
------------------------------------------
Name: F. Donald Kelly III
Title: Vice President
Lending Office for Base Rate Loans
and LIBOR Loans:
Key Corporate Capital Inc.
127 Public Square, MC:OH-01-27-0605
Cleveland, Ohio 44114
Attention: Healthcare Administrative Assistant
Address for Notices:
Key Corporate Capital Inc.
127 Public Square, MC:OH-01-27-0605
Cleveland, Ohio 44114
Attention: Mr. F. Donald Kelly III
Telecopier: (216) 689-5970
Health Care REIT, Inc.
Signature Page to Amendment No. 1 to Amended and Restated Loan Agreement
Dated as of May 15, 2003
REVOLVING CREDIT COMMITMENT:
$52,500,000 DEUTSCHE BANK TRUST COMPANY
AMERICAS
PRO RATA SHARE OF AGGREGATE By: /s/ Diane F. Rolfe
REVOLVING CREDIT COMMITMENTS: ------------------------------------------
Name: Diane F. Rolfe
Title: Vice President
23.333333333%
Lending Office for Base Rate Loans
and LIBOR Loans:
Deutsche Bank Trust Company Americas
31 West 52nd Street
New York, New York 10019
Attention: Diane F. Rolfe
Vice President
Address for Notices:
Deutsche Bank Trust Company Americas
90 Hudson Street
Jersey City, New Jersey 07302
Attention: Roy Castrmonte
Telecopier: (201) 593-2310
Health Care REIT, Inc.
Signature Page to Amendment No. 1 to Amended and Restated Loan Agreement
Dated as of May 15, 2003
REVOLVING CREDIT COMMITMENT:
$40,000,000 BANK OF AMERICA, N.A.
PRO RATA SHARE OF AGGREGATE By: /s/ Kevin Wagley
REVOLVING CREDIT COMMITMENTS: ------------------------------------------
Name: Kevin Wagley
Title: Principal
17.777777778%
Lending Office for Base Rate Loans
and LIBOR Loans:
Bank of America, N.A.
1850 Gateway Boulevard
CA4-706-05-11
Concord, California 94520-32282
Ref: Credit Services, Health Care REIT
Attention: Lynne Famularcano
Address for Notices:
Bank of America, N.A.
1850 Gateway Boulevard
CA4-706-05-11
Concord, California 94520-32282
Ref: Credit Services, Health Care REIT
Attention: Lynne Famularcano
Telecopier: (888) 969-9232
Health Care REIT, Inc.
Signature Page to Amendment No. 1 to Amended and Restated Loan Agreement
Dated as of May 15, 2003
REVOLVING CREDIT COMMITMENT:
$25,000,000 BANK ONE, N.A.
PRO RATA SHARE OF AGGREGATE By: /s/ Jan E. Petrik
REVOLVING CREDIT COMMITMENTS: ------------------------------------------
Name: Jan E. Petrik
Title: First Vice President
11.111111111%
Lending Office for Base Rate Loans
and LIBOR Loans:
Bank One, N.A.
600 Superior
Cleveland, Ohio 44114
Attention: Commercial Loan Operations
Address for Notices:
Bank One, N.A.
Commercial Banking
600 Superior
Cleveland, Ohio 44114
Attention: Ms. Jan Petrik
Telecopier: (216) 781-4567
Health Care REIT, Inc.
Signature Page to Amendment No. 1 to Amended and Restated Loan Agreement
Dated as of May 15, 2003
REVOLVING CREDIT COMMITMENT:
$40,000,000 UBS AG, CAYMAN ISLANDS BRANCH
PRO RATA SHARE OF AGGREGATE By: /s/ Wilfred V. Saint
REVOLVING CREDIT COMMITMENTS: ------------------------------------------
Name: Wilfred V. Saint
17.777777778% Title: Associate Director
Banking Products
Services, US
By: /s/ Patricia O'Kicki
------------------------------------------
Name: Patricia O'Kicki
Title: Director
Lending Office for Base Rate Loans
and LIBOR Loans:
UBS AG, Cayman Islands Branch
c/o UBS AG, Stamford Branch
677 Washington Boulevard
Stamford, Connecticut 06901
Attention: Sailoz Sikka
Address for Notices:
UBS Warburg LLC
677 Washington Boulevard
Stamford, Connecticut 06901
Attention: Sailoz Sikka
Telecopier: (203) 719-3888
Health Care REIT, Inc.
Signature Page to Amendment No. 1 to Amended and Restated Loan Agreement
Dated as of May 15, 2003
REVOLVING CREDIT COMMITMENT:
$15,000,000 COMERICA BANK
PRO RATA SHARE OF AGGREGATE By: /s/ Alicia R. Thornwell-Autry
REVOLVING CREDIT COMMITMENTS: ------------------------------------------
Name: Alicia R. Thornwell-Autry
6.666666667% Title: Assistant Vice President
Lending Office for Base Rate Loans
and LIBOR Loans:
Comerica Bank
Comerica Tower at Detroit Center
500 Woodward Avenue
Detroit, Michigan 48226
Attention: Dawn Morgulec
Address for Notices:
Comerica Bank
Comerica Tower at Detroit Center
500 Woodward Avenue
Detroit, Michigan 48226
Attention: Dawn Morgulec
Telecopier: (313) 222-3420
Health Care REIT, Inc.
Signature Page to Amendment No. 1 to Amended and Restated Loan Agreement
Dated as of May 15, 2003
EXHIBIT 1
TO AMENDMENT NO. 1 TO AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC. AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION, AS AGENT
LIST OF BORROWERS
ORIGINAL BORROWERS
NAME OF ORIGINAL BORROWER STATE OF ORGANIZATION
- ------------------------- ---------------------
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 Broadview, Inc.* Ohio
HCRI Westlake, Inc.* Ohio
HCRI Beachwood, Inc.* Ohio
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 Westmoreland, Inc.* Delaware
HCRI Mississippi Properties, Inc. Mississippi
ADDITIONAL BORROWERS
NAME OF ADDITIONAL BORROWER STATE OF ORGANIZATION
- --------------------------- ---------------------
HCRI Illinois Properties, LLC Delaware
HCRI Missouri Properties, LLC Delaware
HCRI Surgical Properties, LLC Ohio
HCRI Tucson Properties, Inc. Delaware
* Released as a "Borrower" pursuant to the terms of Section 1.4 of this
Amendment No. 1.
ADDENDUM TO SCHEDULE 3.1 TO
AMENDMENT NO. 1 TO AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC. AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION, AS AGENT
STATES OF ORGANIZATION AND QUALIFICATION,
AND CAPITALIZATION OF ADDITIONAL BORROWERS
HCRI ILLINOIS PROPERTIES, LLC
(i) State of Organization: Delaware
(ii) Capitalization: N/A
(iii) Business: Investments in health care facilities
(iv) States of Qualification: Illinois
(v) Subsidiaries: None
HCRI MISSOURI PROPERTIES, LLC
(i) State of Organization: Delaware
(ii) Capitalization: N/A
(iii) Business: Investments in health care facilities
(iv) States of Qualification: Missouri
(v) Subsidiaries: None
HCRI SURGICAL PROPERTIES, LLC
(i) State of Organization: Ohio
(ii) Capitalization: N/A
(iii) Business: Investments in health care facilities
(iv) States of Qualification: None
(v) Subsidiaries: None
HCRI TUCSON PROPERTIES, INC.
(i) State of Incorporation: Delaware
(ii) Capitalization: Authorized Common Stock - 100 shares
Issued Common Stock - 100 shares
(iii) Business: Investments in health care facilities
(iv) States of Qualification: Arizona
(v) Subsidiaries: None
SCHEDULE 3.6
TO
AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION, AS ADMINISTATIVE AGENT
JUDGMENTS, ACTIONS, PROCEEDINGS
- - Harry Young - HCRI has been named as a defendant in a suit in the Third
Judicial Circuit, Madison County, Illinois in a case captioned Harry
Young, Special Administrator of the Estate of Hazel Young vs. Cathedral
Rock of West Granite City, Inc., d/b/a The Colonnades, et al., Case No.
01-L-1441. The Complaint alleges negligence and breaches of duty of
care concerning care and treatment of a resident by a Tenant in the
Tenant's facility. The Tenant is providing indemnification and a
defense to HCRI. HCRI is being defended in this matter by Peter Krane,
Esq., Armstrong Teasdale LLP, One Metropolitan Square, Suite 2600, St.
Louis, MO 63102-2740. HCRI has moved to dismiss the Complaint because
HCRI does not provide any care or treatment and did not owe a duty to
the resident. HCRI believes plaintiffs' claims as to HCRI are meritless
and HCRI will vigorously defend the suit.
- - Carl Rutherford - HCRI has been named as a defendant in a suit in the
Circuit Court for Roane County, Tennessee in a case captioned Carl
Rutherford, as Administrator of the Estate of Mary Reid, Deceased vs.
Royal Care of Harriman, Inc., aka Harriman Care & Rehabilitation
Center, et al., Docket No. 12684. The Complaint alleges negligence and
breaches of duty of care concerning care and treatment of a resident by
a Tenant in the Tenant's facility. The Tenant is providing
indemnification and a defense to HCRI. The HCRI is being defended in
this matter by Richard C. May, Esq. and Loring Justice, Esq., Whelchel,
May & Associates, P.O. Box 11407, Knoxville, TN 37939-1407. HCRI
believes plaintiffs' claims as to HCRI are meritless and HCRI will
vigorously defend the suit.
- - Janace Ogle - HCRI has been named as a defendant in a suit in the
Circuit Court for Sevier County, Tennessee in a case captioned Janace
F. Ogle bnf Vicki Suttles vs. HQM of Pigeon Forge, LLC dba Pigeon Forge
Care & Rehabilitation Center, et al., Docket No. 2002-0741. The
Complaint alleges negligence and breaches of duty of care concerning
care and treatment of a resident by a Tenant in the Tenant's facility.
The Tenant is providing indemnification and a defense to HCRI. HCRI is
being defended in this matter by Richard C. May, Esq. and Loring
Justice, Esq., Whelchel, May & Associates, P.O. Box 11407, Knoxville,
TN 37939-1407. HCRI believes plaintiffs' claims as to HCRI are
meritless and HCRI will vigorously defend the suit.
- - Sylvia Perkins - HCRI has been named as a defendant in a suit in the
Superior Court of the Commonwealth of Massachusetts in a case captioned
Sylvia Ure Tietjen-Perkins vs. Daniel J. Kane, et al., Case No.
02-1776-B. The Complaint alleges negligence and breaches of duty of
care concerning care and treatment of a resident by a Tenant in the
Tenant's facility. The Tenant is providing indemnification and a
defense to HCRI. HCRI is being defended in this
matter by Peter McCormick, Esq., Law Office of Peter Feeherry, 25 New
Chardon Street, Boston, MA 02114. HCRI believes plaintiffs' claims as
to HCRI are meritless and HCRI will vigorously defend the suit.
- - Royal Care Litigation - HCRI has been named as a defendant in six
separate suits filed in State Court in Tennessee filed by a seller of
six facilities against HCRI and several other defendants. Each of the
suits was filed in the Circuit Court for Bradley County, Tennessee on
October 25, 2002 (Docket No. V02-923; Docket No. V02-920; Docket No.
V02-939; Docket No. V02-921; Docket No. V02-922; and Docket No.
V02-926). The Tenant is providing indemnity and a defense to HCRI. The
plaintiff and Tenant have allowed all defendants to have extensions of
time to answer the complaints because the plaintiffs and Tenant are
attempting to negotiate a settlement of the dispute. HCRI believes
plaintiffs' claims as to HCRI are meritless and HCRI will vigorously
defend each of the suits.
- - Windmoor - HCRI has been notified that it and other parties are the
subject of a federal "qui tam" whistleblower lawsuit filed by an
undisclosed relator in the Middle District of Florida, Tampa Division,
under the federal False Claims Act, which claim relates to the
appropriateness of Medicare reimbursement in the amount of
approximately $2.6M resulting from the sale of two facilities in 1997.
Possible penalties under the False Claims Act include treble damages.
The action was filed under seal, which is the normal procedure for such
"qui tam" cases, and further information is unavailable at this time.
The United States Attorney's office is investigating the allegations,
and has not made a decision whether the United States will join in the
action. HCRI's attorneys are working with the federal government
representatives to give them the information necessary to assess the
allegations. It is HCRI's belief that the payments were appropriate and
that the allegations are baseless. HCRI intends to fully defend against
these claims.
SCHEDULE 3.16
TO
AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
EMPLOYEE BENEFIT PLANS
Health Care REIT, Inc. retirement and trust (401(k)) plan
Health Care REIT, Inc. money purchase pension plan (merged into the
retirement plan effective September 30, 2002)
Health Care REIT, Inc. supplemental executive retirement plan
Health Care REIT, Inc. group insurance benefit plan
EXHIBIT A
TO AMENDMENT NO. 1 TO AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC. AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION, AS AGENT
FORM OF SUBSTITUTED NOTE
$____________ DATED: MAY 15, 2003
FOR VALUE RECEIVED, each of the undersigned (collectively, the
"BORROWERS"), hereby jointly and severally promises to pay to the order of
___________________________ (the "BANK") on the Revolving Credit Commitment
Termination Date, the principal sum of _____________________ ($__________)
Dollars, or such lesser amount as shall be equal to the aggregate unpaid
principal amount of the Loans outstanding on the close of business on the
Revolving Credit Commitment Termination Date made by the Bank to the Borrowers;
and to pay interest on the unpaid principal amount of each Loan from the date
thereof at the rates per annum and for the periods set forth in or established
by the Agreement and calculated as provided therein.
All indebtedness outstanding under this Substituted Note shall
bear interest (computed in the same manner as interest on this Substituted Note
prior to the relevant due date) at the applicable Post-Default Rate for all
periods when an Event of Default has occurred and is continuing, commencing on
the occurrence of such Event of Default until such Event of Default has been
cured or waived as acknowledged in writing by the Agent, and all of such
interest shall be payable on demand.
Anything herein to the contrary notwithstanding, the
obligation of the Borrowers to make payments of interest shall be subject to the
limitation that payments of interest shall not be required to be made to the
Bank to the extent that the Bank's receipt thereof would not be permissible
under the law or laws applicable to the Bank limiting rates of interest which
may be charged or collected by the Bank. Any such payments of interest which are
not made as a result of the limitation referred to in the preceding sentence
shall be made by the Borrowers to the Bank on the earliest interest payment date
or dates on which the receipt thereof would be permissible under the laws
applicable to the Bank limiting rates of interest which may be charged or
collected by the Bank.
Payments of both principal and interest on this Substituted
Note are to be made to the office of KeyBank National Association, as Agent, at
127 Public Square, Cleveland, Ohio 44114-1306 or such other place as the holder
hereof shall designate to the Borrowers in writing, in lawful money of the
United States of America in immediately available funds.
This Substituted Note is one of the Substituted Notes referred
to in, and is entitled to the benefits of, the Amended and Restated Loan
Agreement dated August 23, 2002, as amended by Amendment No. 1 to Amended and
Restated Loan Agreement dated of even date herewith by and among the Borrowers,
the Banks signatory thereto (including the Bank) and the Agent (as so amended
and as it may be further amended, modified or supplemented from time to time,
the "AGREEMENT"). This Substituted Note supersedes and is given in substitution
for the Note dated August 23, 2002 made by the Borrowers to the order of the
Bank in the original principal amount of $___________ but does not constitute a
novation, extinguishment or termination of the obligations evidenced thereby.
Capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed thereto in the Agreement.
The Bank is hereby authorized by the Borrowers to record on
the schedule to this Substituted Note (or on a supplemental schedule thereto)
the amount of each Loan made by the Bank to the Borrowers and the amount of each
payment or repayment of principal of such Loans received by the Bank, it being
understood, however, that failure to make any such notation shall not affect the
rights of the Bank or the obligations of the Borrowers hereunder in respect of
this Substituted Note. The Bank may, at its option, record such matters in its
internal records rather than on such schedule.
Upon the occurrence of any Event of Default, the principal
amount and accrued interest on this Substituted Note may be declared due and
payable in the manner and with the effect provided in the Loan Agreement.
The Borrowers shall pay costs and expenses of collection,
including, without limitation, attorneys' fees and disbursements in the event
that any action, suit or proceeding is brought by the holder hereof to collect
this Substituted Note.
THIS SUBSTITUTED NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
ITS RULES PERTAINING TO CONFLICTS OF LAWS.
[Signatures on Following Page]
2
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
HCRI MARYLAND PROPERTIES, LLC
BY HEALTH CARE REIT, INC.
ITS MEMBER
[BORROWERS CONTINUED ON FOLLOWING PAGE]
3
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 _________________________________________
CHIEF EXECUTIVE OFFICER
GEORGE L. CHAPMAN, as Chief Executive Officer of all of the
aforementioned entities, has executed this Substituted Note intending that all
entities above named are bound and are to be bound by the one signature as if he
had executed this Substituted Note separately for each of the above named
entities.
4
SCHEDULE A
PRINCIPAL PAYMENTS
Substituted Note dated May 15, 2003
payable to the order of
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Interest Period
(if other than a
Principal Base Rate Amount Unpaid
Amount of Loan) and of Principal Principal Notation
Date Loan Interest Rate Repaid Balance Made By
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