EX-10.1 8 l02861aexv10w1.txt EX-10.1 AMEND #2 TO AMENDED AND RESTATED LOAN AGMT Exhibit 10.1 -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- 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 -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- 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 ------------------------------------------------------ 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. 2 (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. 3 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] 4 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 ------------------------------------------------ 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 ------------------------------------- Name: F. Donald Kelly III Title: Vice President KEYBANK NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT By: /s/ F. Donald Kelly III ------------------------------------- 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 ---------------------------------------- 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 ------------------------------------- Name: Kevin Wagley ----------------------------- Title: Principal ----------------------------- 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 ------------------------------------- Name: Jan E. Petrik ----------------------------- Title: First Vice President ----------------------------- 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 ------------------------------------- Name: Patricia O'Kicki ----------------------------- Title: Director ----------------------------- By: /s/ Luke Goldsworthy ------------------------------------- Name: Luke Goldsworthy ----------------------------- Title: Associate Director ----------------------------- Banking Products Services, US ----------------------------- 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 ------------------------------------- Name: Dawn M. Morgulec ----------------------------- Title: Account Officer ----------------------------- 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 -------------------------------------- LIST OF BORROWERS ----------------- NAME OF 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 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