FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT Dated as of November 15, 2006 by and among SENIOR HOUSING PROPERTIES TRUST, as Borrower WACHOVIA CAPITAL MARKETS, LLC, as Lead Arranger WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative...
Exhibit
10.1
FIRST
AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Dated
as
of November 15, 2006
by
and
among
as Borrower
WACHOVIA
CAPITAL MARKETS, LLC,
as Lead
Arranger
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as Administrative
Agent,
Each
of
ING
REAL
ESTATE FINANCE (USA) LLC
and
CITIZENS
BANK OF MASSACHUSETTS,
as
Co-Syndication Agents,
Each
of
ROYAL
BANK OF CANADA
and
CALYON
NEW YORK BRANCH,
as
Co-Documentation Agents,
and
THE
FINANCIAL INSTITUTIONS PARTY HERETO
AND
THEIR
ASSIGNEES UNDER SECTION 12.5 as
Lenders
FIRST
AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS
FIRST
AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) dated as
of November 15, 2006 by and among SENIOR HOUSING PROPERTIES TRUST (the
“Borrower”), each of the financial institutions a party hereto (the “Lenders”),
and WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent (the “Agent”).
WHEREAS,
the Borrower, the Lenders and the Agent have entered into that certain Amended
and Restated Credit Agreement dated as of July 29, 2005 (as in effect
immediately prior to the date hereof, the “Credit Agreement”); and
WHEREAS,
the Borrower, the Lenders and the Agent desire to amend certain provisions
of
the Credit Agreement on the terms and conditions contained herein.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged by the parties hereto, the parties hereto hereby
agree as follows:
Section 1.
Specific
Amendments to Credit Agreement.
The
parties hereto agree that the Credit Agreement is amended as
follows:
(a) The
Credit Agreement is amended by restating in full the definitions of
“Capitalization Rate” and “Termination Date” contained in Section 1.1. thereof
as follows:
“Capitalization
Rate”
means
9.00%.
“Termination
Date”
means
December 31, 2010.
(b) The
Credit Agreement is amended by restating Section 3.6.(d) thereof in its
entirety as follows:
(d) Extension
Fees.
If,
pursuant to Section 2.15., the Termination Date is extended, the Borrower agrees
to pay to the Agent for the account of each Lender an extension fee equal to
0.15% of each such Lender’s Commitment at the time of such extension. Payment of
such fees shall be a condition precedent to the effectiveness of any such
extension.
(c) The
Credit Agreement is amended by restating Section 9.1.(a) thereof in its
entirety as follows:
(a) Leverage
Ratio.
The
ratio of (i) Total Indebtedness to (ii) Total Asset Value, to exceed
0.60 to 1.00 at any time.
(d) The
Credit Agreement is amended by restating Section 9.1.(c) thereof in its
entirety as follows:
(c) Secured
Indebtedness.
The
ratio of (i) Secured Indebtedness of the Borrower and its Subsidiaries to
(ii) Total Asset Value, to be greater than 0.30 to 1.00 at any
time.
(e) The
Credit Agreement is amended by restating Section 9.1.(d) thereof in its
entirety as follows:
(d) Unencumbered
Leverage Ratio.
The
ratio of (i) Unencumbered Asset Value to (ii) Unsecured Indebtedness
of the Borrower and its Subsidiaries, to be less than 1.67 to 1.00 at any
time.
(f) The
Credit Agreement is amended by restating Section 9.1.(g) thereof in its
entirety as follows:
(g) Floating
Rate Debt. The
aggregate principal amount of all outstanding Floating Rate Debt to exceed,
at
any time, the greater of (i) 40% of Total Asset Value and (ii) the
aggregate amount of the Commitments.
(g) Schedule
1.1.(a) to the Credit Agreement is hereby superseded and replaced by Schedule
1.1.(a) attached to this Amendment.
(a) A
counterpart of this Amendment duly executed by the Borrower and each of the
Lenders;
(b) An
Acknowledgment substantially in the form of Exhibit A attached hereto, executed
by each Guarantor (the “Guarantor Acknowledgement”);
(c) An
opinion of counsel to the Loan Parties addressed to the Agent and the Lenders
covering such matters as the Agent may reasonably request;
(d) Evidence
that all fees due and payable to the Lenders, and all fees and expenses payable
to the Agent, in connection with this Amendment have been paid; and
(e) Such
other documents, instruments and agreements as the Agent may reasonably
request.
Section 3.
Representations.
The
Borrower represents and warrants to the Agent and the Lenders that:
(a) Authorization.
The
Borrower has the right and power, and has taken all necessary action to
authorize it, to execute and deliver this Amendment and to perform its
obligations hereunder and under the Credit Agreement, as amended by this
Amendment, in accordance with their respective terms. This Amendment has been
duly executed and delivered by a duly authorized officer of the Borrower and
each of this Amendment and the Credit Agreement, as amended by this Amendment,
is a legal, valid and binding obligation of the Borrower enforceable against
the
Borrower in accordance with its respective terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws
affecting creditors rights generally and (ii) the availability of equitable
remedies may be limited by equitable principles of general
applicability.
(b) Compliance
with Laws, etc.
The
execution and delivery by the Borrower of this Amendment and the performance
by
the Borrower of this Amendment and the Credit Agreement, as amended by this
Amendment, in accordance with their respective terms, do not and will not,
by
the passage of time, the giving of notice or otherwise: (i) require any
Government Approvals or violate any Applicable Laws (including Environmental
Laws) relating to the Borrower or any other Loan Party; (ii) conflict with,
result in a breach of or constitute a default under the organizational documents
of the Borrower or any other Loan Party, or any indenture, agreement or other
instrument to which the Borrower or any other Loan Party is a party or by which
it or any of its respective properties may be bound; or (iii) result in or
require the creation or imposition of any Lien upon or with respect to any
property now owned or hereafter acquired by the Borrower or any other Loan
Party.
(c) No
Default.
No
Default or Event of Default has occurred and is continuing as of the date hereof
or will exist immediately after giving effect to this Amendment.
Section 4.
Reaffirmation
of Representations by Borrower.
The
Borrower hereby repeats and reaffirms all representations and warranties made
by
the Borrower and the other Loan Parties to the Agent and the Lenders in the
Credit Agreement and the other Loan Documents to which it is a party on and
as
of the date hereof with the same force and effect as if such representations
and
warranties were set forth in this Amendment in full.
Section 5.
Joinder
and Representations of New Lenders.
The
parties hereto agree as follows:
(a) Upon
the
effectiveness of this Amendment, each Lender and such Lender’s respective
Commitment is as set forth on Exhibit B attached hereto.
(b) Each
Lender that was not party to the Credit Agreement immediately prior to giving
effect to this Amendment (a “New Lender”) (i) represents and warrants to
the Agent, the Lenders and the Borrower that it is (A) legally authorized
to enter into this Amendment and to become a Lender under the Credit Agreement
and (B) an “accredited investor” (as such term is used in Regulation D
of the Securities Act); (ii) confirms that it has received a copy of the
Credit Agreement, together with copies of the most recent financial statements
delivered pursuant
thereto
and such other documents and information (including without limitation the
Loan
Documents) as such New Lender has deemed appropriate to make its own credit
analysis and decision to become a Lender; (iii) appoints and authorizes the
Agent to take such action as contractual representative on such New Lender’s
behalf and to exercise such powers under the Credit Agreement and the other
Loan
Documents as are delegated to the Agent by the terms thereof, together with
such
powers as are reasonably incidental thereto; and (iv) acknowledges and agrees
that it will become a party to and shall be bound by the Credit Agreement and
the other Loan Documents to which the other Lenders are a party as of the date
hereof and will perform in accordance therewith all of the obligations which
are
required to be performed by it as if such New Lender were an original Lender
under and signatory to the Credit Agreement.
Section 6.
Certain
References.
Each
reference to the Credit Agreement in any of the Loan Documents shall be deemed
to be a reference to the Credit Agreement as amended by this Amendment.
Section 7.
Expenses.
The
Borrower shall reimburse the Agent upon demand for all costs and expenses
(including attorneys’ fees) incurred by the Agent in connection with the
preparation, negotiation and execution of this Amendment and the other
agreements and documents executed and delivered in connection
herewith.
Section 8.
Benefits.
This
Amendment shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns.
Section 9.
GOVERNING
LAW.
THIS
AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.
Section 10.
Effect.
Except
as expressly herein amended, the terms and conditions of the Credit Agreement
and the other Loan Documents remain in full force and effect. The amendments
contained herein shall be deemed to have prospective application only, unless
otherwise specifically stated herein.
Section 11.
Counterparts.
This
Amendment may be executed in any number of counterparts, each of which shall
be
deemed to be an original and shall be binding upon all parties, their successors
and assigns.
Section 12.
Definitions.
All
capitalized terms not otherwise defined herein are used herein with the
respective definitions given them in the Credit Agreement.
[Signatures
on Next Page]
IN
WITNESS WHEREOF, the parties hereto have caused this First Amendment to Amended
and Restated Credit Agreement to be executed as of the date first above
written.
THE
BORROWER:
By:
/s/
Xxxx X. Xxxxxxx
Name:
Xxxx X. Xxxxxxx
Title: Treasurer
and Chief Financial Officer
THE
AGENT
AND THE LENDERS:
WACHOVIA
BANK, NATIONAL ASSOCIATION,
individually
and as Agent
By: /s/
Xxxxx X. Xxxxxxxx
Name: Xxxxx
X.
Xxxxxxxx
Title:
Managing
Director
CITIZENS
BANK OF MASSACHUSETTS
By:
/s/
Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx
X.
Xxxxxxxxx
Title: Senior Vice President
ING
REAL
ESTATE FINANCE (USA) LLC
By:
/s/
Xxxxxxxxxxx X. Xxxxxxxxx
Name: Xxxxxxxxxxx
X. Xxxxxxxxx
Title: Vice
President
[Signatures
Continued on Next Page]
[Signature
Page to First Amendment to Amended and Restated
Credit
Agreement with Senior Housing Properties Trust]
CALYON
NEW YORK BRANCH
By:
/s/
Xxxxxx X. Xxxxxxxx
Name: Xxxxxx
X.
Xxxxxxxx
Title: Managing Director
By:
/s/
Xxxxx Xxxxxx
Name: Xxxxx
Xxxxxx
Title: Managing Director
ROYAL
BANK OF CANADA
By:
/s/
Xxx XxXxxx
Name: Xxx
XxXxxx
Title: Authorized Signatory
TD
BANKNORTH, N.A.
By:
/s/
Xxxxx Xxxxxxxxxx
Name: Xxxxx
Xxxxxxxxxx
Title: Senior Vice-President
[Signatures
Continued on Next Page]
[Signature
Page to First Amendment to Amended and Restated
Credit
Agreement with Senior Housing Properties Trust]
UBS
LOAN
FINANCE LLC
By:
/s/
Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Director
By:
/s/
Xxxx Xxxx
Name: Xxxx Xxxx
Title: Associate Director
XXXXX
FARGO BANK, NATIONAL ASSOCIATION
By:
/s/
Xxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxx
X. Xxxxxx
Title: Vice
President
MEGA
INTERNATIONAL COMMERCIAL BANK
CO.,
LTD., NEW YORK BRANCH
By:
/s/
Nae-Xxx Lung
Name: Nae-Xxx
Lung
Title: SVP & General Manager
MEGA
INTERNATIONAL COMMERCIAL BANK
CO.,
LTD., LOS ANGELES BRANCH
By:
/s/
Xxxxxxx X. Xxxxx
Name: Xxxxxxx
X. Xxxxx
Title: VP & Deputy GM
[Signatures
Continued on Next Page]
[Signature
Page to First Amendment to Amended and Restated
Credit
Agreement with Senior Housing Properties Trust]
CHINATRUST
COMMERCIAL BANK, LTD.
By:
/s/
Xxxxxxx Xx
Name: Xxxxxxx
Xx
Title: Vice President & Acting General Manager
COMERICA
BANK
By:
/s/
Xxxxx X. Xxxxxxxxx
Name: Xxxxx
X.
Xxxxxxxxx
Title: Vice President
XXXXXXX
XXXXX CAPITAL CORPORATION
By:
/s/
Xxxx X. Xxxxxxx
Name: Xxxx
X.
Xxxxxxx
Title: Vice
President
UNITED
OVERSEAS BANK LIMITED,
LOS
ANGELES AGENCY
By:
/s/
Xxxxx Xxxx
Name: Xxxxx
Xxxx
Title: FVP & General Manager
[Signatures
Continued on Next Page]
[Signature
Page to First Amendment to Amended and Restated
Credit
Agreement with Senior Housing Properties Trust]
BANK
OF
COMMUNICATIONS CO., LTD.,
NEW
YORK
BRANCH
By:
/s/
Hong Tu
Name: Hong Tu
Title: General Manager
CHEVY
CHASE BANK, FSB
By:
/s/
Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Vice President
XXXXXX
XXXXXXX BANK
By:
/s/
Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Authorized Signatory
XXXXX
XXX
COMMERCIAL BANK, LTD.,
NEW
YORK
BRANCH
By:
/s/
Xxx X.X. Xxxx
Name: Xxx X.X. Xxxx
Title: V.P. & General Manager
SCHEDULE
1.1(a)
Pricing
Tables
Table I
-- Investment Grade Pricing
|
Level
|
Borrower’s
Credit Rating
(S&P/Xxxxx’x
(other))
|
Applicable
Margin for LIBOR Loans
|
Applicable
Margin for Base Rate Loans
|
Facility
Fee
|
|
1
|
Higher
than BBB+/Baa1 (or equivalent)
|
0.50%
|
0.0%
|
0.125%
|
|
2
|
BBB+/Baa1
(or equivalent)
|
0.55%
|
0.0%
|
0.15%
|
|
3
|
BBB/Baa2
(or equivalent)
|
0.65%
|
0.0%
|
0.20%
|
|
4
|
BBB-/Baa3
(or equivalent)
|
0.80%
|
0.0%
|
0.20%
|
Table II
-- Non-Investment Grade Pricing
|
Level
|
Ratio
of Total Indebtedness to Total Asset Value
|
Applicable
Margin for LIBOR Loans
|
Applicable
Margin for Base Rate Loans
|
Facility
Fee
|
|
1
|
<
0.40
|
0.80%
|
0.0%
|
0.20%
|
|
2
|
>
0.40 but < 0.50
|
0.925%
|
0.0%
|
0.225%
|
|
3
|
>
0.50
|
1.05%
|
0.0%
|
0.25%
|
EXHIBIT
A
FORM
OF
GUARANTOR ACKNOWLEDGEMENT
THIS
GUARANTOR ACKNOWLEDGEMENT dated as of ___________ ___, 2006 (this
“Acknowledgment”) executed by each of the undersigned (the “Guarantors”) in
favor of WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent (the “Agent”) and each
“Lender” a party to the Credit Agreement referred to below (the
“Lenders”).
WHEREAS,
Senior Housing Properties Trust (the “Borrower”), the Lenders, the Agent and
certain other parties have entered into that certain Amended and Restated Credit
Agreement dated as of July 29, 2005 (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”);
WHEREAS,
each of the Guarantors is a party to that certain Guaranty dated as of July
29,
2005 (as amended, restated, supplemented or otherwise modified from time to
time, the “Guaranty”) pursuant to which they guarantied, among other things, the
Borrower’s obligations under the Credit Agreement on the terms and conditions
contained in the Guaranty;
WHEREAS,
the Borrower, the Agent and the Lenders are to enter into a First Amendment
to
Amended and Restated Credit Agreement dated as of the date hereof (the
“Amendment”), to amend the terms of the Credit Agreement on the terms and
conditions contained therein; and
WHEREAS,
it is a condition precedent to the effectiveness of the Amendment that the
Guarantors execute and deliver this Acknowledgement.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged by the parties hereto, the parties hereto agree
as
follows:
Section
1. Reaffirmation.
Each
Guarantor hereby reaffirms its continuing obligations to the Agent and the
Lenders under the Guaranty and agrees that the transactions contemplated by
the
Amendment shall not in any way affect the validity and enforceability of the
Guaranty, or reduce, impair or discharge the obligations of such Guarantor
thereunder.
Section
2. Governing
Law.
THIS
ACKNOWLEDGEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS
OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.
Section 3.
Counterparts.
This
Acknowledgement may be executed in any number of counterparts, each of which
shall be deemed to be an original and shall be binding upon all parties, their
successors and assigns.
IN
WITNESS WHEREOF, each Guarantor has duly executed and delivered this
Acknowledgement as of the date and year first written above.
CCC
ALPHA
INVESTMENTS TRUST
CCC
DELAWARE TRUST
CCC
FINANCING I TRUST
CCC
FINANCING LIMITED, L.P.
By:
CCC
Retirement Trust, its General Partner
CCC
INVESTMENTS I, L.L.C.
CCC
LEISURE PARK CORPORATION
CCC
OHIO
HEALTHCARE TRUST
CCC
PUEBLO NORTE TRUST
CCC
RETIREMENT COMMUNITIES II, L.P.
By:
Crestline Ventures, LLC, its General Partner
CCC
RETIREMENT PARTNERS TRUST
CCC
RETIREMENT TRUST
CCC
SENIOR LIVING CORPORATION
CCCP
SENIOR LIVING LLC
CCDE
SENIOR LIVING LLC
CCFL
SENIOR LIVING LLC
CCOP
SENIOR LIVING LLC
CCSL
SENIOR LIVING LLC
CRESTLINE
VENTURES LLC
CSL
GROUP, INC.
ELLICOTT
CITY LAND I, LLC
ELLICOTT
CITY LAND II, LLC
HRES1
PROPERTIES TRUST
HRES2
PROPERTIES TRUST
LTJ
SENIOR COMMUNITIES LLC
MSD
POOL
1 LLC
MSD
POOL
2 LLC
PANTHER
GENPAR TRUST
PANTHER
HOLDINGS LEVEL I L.P.
By:
Panther GenPar Trust, its General Partner
SHOPCO-SD,
LLC
SNH
ALT
LEASED PROPERTIES TRUST
SNH/CSL
PROPERTIES TRUST
SNH
CHS
PROPERTIES TRUST
SNH/LTA
PROPERTIES GA LLC
SNH/LTA
PROPERTIES TRUST
SNH
NS
PROPERTIES TRUST
SNH
KNIGHT PROPERTIES TRUST
SPTGEN
PROPERTIES TRUST
SPTIHS
PROPERTIES TRUST
SPT-MICHIGAN
TRUST
SPTMISC
PROPERTIES TRUST
SPTMNR
PROPERTIES TRUST
SPTMRT
PROPERTIES TRUST
SPTSUN
II
PROPERTIES TRUST
By:
____________________
Xxxx
X.
Xxxxxxx
Treasurer
The
following exhibit has been omitted and will be supplementally furnished to
the
Securities and Exchange Commission upon request:
EXHIBIT
B
— Lender Commitments
