AMENDMENT TO CREDIT AGREEMENT
THIS AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made as of
November 23, 1998, by and among MEDITRUST CORPORATION (the "Borrower"), ▇▇▇▇▇▇
GUARANTY TRUST COMPANY OF NEW YORK, as Administrative Agent (the "Administrative
Agent"), BANKERS TRUST COMPANY, as Syndication Agent, BANKBOSTON, N.A., as
Co-Documentation Agent, FLEET NATIONAL BANK, as Co-Documentation Agent, and the
BANKS listed on the signature pages hereof.
W I T N E S S E T H:
--------------------
WHEREAS, the Borrower and the Banks have entered into the
Credit Agreement, dated as of July 17, 1998 (the "Credit Agreement"); and
WHEREAS, the parties desire to modify the Credit Agreement
upon the terms and conditions set forth herein.
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties do hereby
agree as follows:
1. Definitions. All capitalized terms not otherwise defined
herein shall have the meanings ascribed to them in the Credit Agreement.
2. Annual EBITDA. The definition of "Annual EBITDA" is hereby
deleted and the following substituted therefor:
"Annual EBITDA" means, measured as of the last day of each
calendar quarter, an amount derived from (i) total revenues as
determined in accordance with GAAP and reflected in the
combined
consolidated financial statements relating to the Borrower,
MOC and their Consolidated Subsidiaries or to the Borrower's
or MOC's direct or indirect interest in Minority Holdings for
the previous four consecutive calendar quarters including the
quarter then ended, on an accrual basis, less (ii) total
operating expenses and other expenses relating to the
Borrower, MOC and their Consolidated Subsidiaries and relating
to the Borrower's and MOC's direct or indirect interest in
Minority Holdings for such period (other than interest, taxes,
depreciation, amortization, and other non-cash items, as well
as nonrecurring, one-time cash charges, not to exceed
(together with those one-time cash charges set forth in clause
(iii) below), for the period commencing October 1, 1998,
$250,000,000 in the aggre gate), less (iii) total corporate
operating expenses (including general overhead expenses) and
other expenses of the Borrower, MOC, their Consolidated
Subsidiaries and such expenses relating to the Bor rower's and
MOC's direct or indirect interest in Minority Holdings (other
than interest, taxes, depreciation, amortization and other
non-cash items, as well as nonrecurring, one-time cash
charges, not to exceed (together with those one-time cash
charges set forth in clause (ii) above), for the period
commencing October 1, 1998, $250,000,000 in the aggregate),
for such period.
3. Applicable Margin. The definition of "Applicable Margin" is hereby
deleted and the following substituted therefor: "'Applicable Margin' means, with
respect to each Euro-Dollar Loan, 2.625%, and with respect to each Base Rate
Loan, 1.75%; provided, however, that if the Borrower, MOC and/or any of their
Subsidiaries shall fail to complete one or more offerings or private placements
of convertible preferred stock, common stock or other equity securities or
securities convertible into equity securities (collectively, "Securities"), in
an aggregate amount not less than $100,000,000 on or before February 1, 1999,
then, commenc ing as of February 1, 1999, the "Applicable Margin" shall be
increased by the
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Capital Markets Condition Spread until such time as Securities in an amount not
less than $100,000,000 shall have been issued. For purposes hereof, "Capital
Markets Condition Spread" means an amount equal to 0.25%."
4. Debt. The following clause "(E)" is hereby added to the definition of
"Debt: ", and (E) all repurchase and similar obligations of such Person." In
addition, the following sentence is hereby added to the end of the definition of
"Debt": "Notwithstanding anything contained herein to the contrary, Debt shall
not be deemed to include any amounts evidenced by the nonrecourse mortgage note
payable to ▇▇▇▇▇▇▇ ▇▇▇▇▇ International and secured by a mortgage or deed of
trust on the Santa ▇▇▇▇▇ Racetrack."
5. FEITS Agreement. The following definition is hereby added after the
definition of "Federal Reserve Board": "'FEITS Agreement' means the Purchase
Agreement, dated as of February 26, 1998, among the Borrower, MOC, ▇▇▇▇▇▇▇ ▇▇▇▇▇
International and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, as agent
for the account of ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, as amended by Amendment
Agreements, dated as July 16, 1998 and July 31, 1998, and all other agreements
executed in connection therewith (a true and complete copy of which has been
delivered by the Borrower to the Administrative Agent, the Syndication Agent and
the Co-Documentation Agents), as the same may be amended from time to time in
accordance with the provisions hereof."
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6. Guaranty. The definition "Guarantor Subsidiary" is hereby deleted and
all references thereto in the Credit Agreement and the other Loan Documents are
hereby deemed to be deleted. In addition, the definition of "Guaranty" is hereby
amended by substituting the phrase "all Consolidated Subsidiaries of the
Borrower and/or MOC that are required to deliver a Guaranty pursuant to Section
5.22 hereof" for the phrase "a Guarantor Subsidiary".
7. Loan Documents. The definition of "Loan Documents"" is hereby deleted
and the following substituted therefor:
"Loan Documents" means this Agreement, the Notes, any
Guaranty, the Letter(s) of Credit, the Letter of Credit
Documents, the Pledges, the Subordination Agreement and any
related documents.
8. Net Offering Proceeds. The definition of "Net Offering Proceeds"" is
hereby deleted and the following substituted therefor:
"Net Offering Proceeds" means all cash received by the
Borrower or MOC as a result of the sale and/or issuance of (x)
common stock, preferred stock, partnership interests, limited
liability company interests, or other ownership or equity
interests in the Borrower or MOC (or evidence of indebtedness
of the Borrower or MOC con vertible into any of the
foregoing), or (y) debt securities or any other debt
instruments, whether or not securities, including, without
limitation, notes and loan agreements with banks, life
insurance companies and all other lenders, less, in either
case, customary costs and discounts of issuance paid by the
Borrower or MOC, as the case may be, and exclusive of any cash
proceeds received in connection with the settlement of the
Forward Equity Issuance Transaction, dated as of February 26,
1998 with ▇▇▇▇▇▇▇ ▇▇▇▇▇ International.
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9. Permitted Liens. The following clause is hereby added to the end of the
definition of "Permitted Liens": ", and (i) Liens created pursuant to the
Pledges".
10. Pledges. The following definition is hereby added after the definition
of "Plan":
"Pledges" means, collectively, the Equity Interest Pledge
and Secu rity Agreement, the Mortgage Loan Pledge and
Security Agreement, and the Intercompany Debt Pledge and
Security Agreement, all dated as of November 23, 1998, by
the Borrower, MOC and certain of their Subsidiaries, for the
benefit of the Administrative Agent, on behalf of the Banks,
as well as for the benefit of the trustee(s) of the
bondholders (the "Bondholders") more particularly set forth
on Schedule 9 hereto.
11. Subordination Agreement. The following definition is hereby added to
the Credit Agreement following the definition of "Solvent": "Subordination
Agreement" means the Subordination Agreement, dated as of the date hereof, by
the Borrower, Meditrust Finance Corporation and Meditrust Mortgage Invest ments,
Inc., for the benefit of the Administrative Agent, on behalf of the Banks and
the Bondholders.
12. Unsecured Debt Ratio. The definition of "Unsecured Debt Ratio" is
hereby amended by adding the following: "For purposes of this definition, 'Unse
cured Debt of the Borrower, MOC and their Consolidated Subsidiaries' shall be
deemed to include the Obligations, as well as all other Debt that is secured by
the Pledges."
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13. Facility Fee. Section 2.8(a) of the Credit Agreement is hereby deleted,
and the following substituted therefor:
Facility Fee. During the Term, the Borrower shall pay to the
Administrative Agent for the account of the Banks ratably in
propor tion to their respective Commitments, a facility fee on
the daily average Commitments in any given quarter at a
percentage per annum equal to 0.375%.
The facility fee with respect to Tranche A Loans shall be
payable quarterly, in arrears, on each January 1, April 1,
July 1, and Octo ber 1, as well as on the applicable Maturity
Date, during the Term and any extensions thereof. The facility
fee with respect to Tranche B Loans, Tranche C Loans and
Tranche D Loans shall be payable on the last day of each
Interest Period and, if such Interest Period is longer than
three months, at intervals of three months after the first day
thereof, i.e. simultaneously with the payment of interest in
accordance with the provisions of Section 2.7.
14. Financial Covenants. Section 5.8 of the Credit Agreement is hereby
amended as follows:
(a) Section 5.8(a) of the Credit Agreement is hereby deleted and the
following substituted therefor:
(a) Total Liabilities to Total Fair Market Value. As of the last day
of each calendar quarter, the Total Debt Ratio will not be greater
than (i) 62.5% from October 1, 1998 through ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) 60%
from April 1, 1999 through September 30, 1999, (iii) 57.5% from
October 1, 1999 through the final Maturity Date, and (iv)
notwithstanding the provisions of clauses (i), (ii), or (iii) to the
contrary, from and after the Conversion Date, 60%.
(b) Section 5.8(b) of the Credit Agreement is hereby deleted and the
following substituted therefor:
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(b) Total Debt to Annual EBITDA. As of the last day of each calendar
quarter, the ratio of (i) the sum, without duplication, of (x) the
Debt of the Borrower, MOC and their Consolidated Subsidiaries, and (y)
the Borrower's and MOC's pro rata share of the Debt of any Minority
Holdings of the Borrower or MOC to (ii) Annual EBITDA, will not be
more than (A) 5.5:1 commencing as of Octo ber 1, 1998 through ▇▇▇▇▇
▇▇, ▇▇▇▇, (▇) 5.25:1 from April 1, 1999 through September 30, 1999,
(C) 5.0:1 from October 1, 1999 through December 31, 1999, and (D)
4.75:1 thereafter. For pur poses of this clause (b), prior to June 30,
1999, Annual EBITDA shall be calculated on an annualized basis,
commencing as of the quarter ending September 30, 1998, and from and
after July 1, 1999, Annual EBITDA shall be calculated based upon the
Annual EBITDA for the preceding four quarters.
(c) Section 5.8(e) of the Credit Agreement is hereby deleted and the
following substituted therefor:
(c) Unsecured Debt Ratio. As of the last day of each calendar quarter,
the Unsecured Debt Ratio will not be less than (A) 0.87:1 commencing
as of October 1, 1998 through ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇) 0.90:1 from April 1,
1999 through June 30, 1999, (C) 0.95:1 from July 1, 1999 through
September 30, 1999, and (D) 1.0:1 thereafter.
(d) Section 5.8(g) of the Credit Agreement is hereby deleted and the
following substituted therefor:
(d) Minimum Consolidated Tangible Net Worth. The Consolidated Tangible
Net Worth will at no time be less than the sum of (i) $2,000,000,000,
(ii) 75% of all Net Offering Proceeds set forth in clause (x) of the
definition thereof, and (iii) in the case of convertible Debt in
existence as of the Closing Date, upon conversion of any such Debt to
an equity interest in the Borrower or MOC, 75% of the principal amount
of such Debt so converted.
(e) Section 5.8(h) of the Credit Agreement is hereby deleted and the
following substituted therefor:
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(e) Limitation on Secured Debt. Secured Debt of the Borrower, MOC and
their Consolidated Subsidiaries shall at no time exceed ten percent
(10%) of Total Fair Market Value, exclusive of any Mort gages
delivered in connection with the Security Conversion, the Pledges, any
mortgage delivered to ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, encumbering the
Santa ▇▇▇▇▇ Racetrack to secure the Borrower's obligations under the
FEITS Agreement, or any intercompany debt otherwise permitted
hereunder.
15. Restriction on Fundamental Changes; Operation and Control. Section
5.9(a) of the Credit Agreement is hereby deleted and the following substituted
therefor:
(a) None of the Borrower, MOC or any Subsidiary shall (i)enter into
any merger or consolidation (not including mergers and ▇▇▇▇▇▇▇ dations
with each other), unless the Borrower, MOC or such Subsid iary, as the
case may be, is the surviving entity, or (ii) except in the case of a
Subsidiary of either the Borrower or MOC (unless the same shall
constitute a substantial part of the Borrower's or MOC's business or
property), liquidate, wind-up or dissolve (or suffer any liquidation
or dissolution), discontinue its business or convey, lease, sell,
transfer or otherwise dispose of (except in each case to another
Subsidiary), in one transaction or series of transactions, any substan
tial part of its business or property, or (iii) sell or transfer all
or any substantial part, to one Person or a group of related Persons
(other than a Consolidated Subsidiary of the Borrower or MOC), (A) the
ownership, financing or operation of the Healthcare Properties, or (B)
the ownership, financing or operation of the Hotel Properties (it
being understood that such a transfer to a Consolidated Subsidiary and
the subsequent dividending out of the stock thereof, or any other form
of "spin-off" transaction shall be deemed to be a transfer for
purposes hereof), without the prior written consent of the Banks in
their sole discretion.
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16. Use of Proceeds. Section 5.16 of the Credit Agreement is hereby amended
by deleting the second sentence thereof and substituting the following therefor:
The Borrower may also use the proceeds of the Tranche A Loans to repay
its obligations under the FEITS Agreement, but only to the extent that
the Borrower shall have previously repaid the Tranche A Loans, in
accordance with the provisions of Section 2.10(b), with the Net Cash
Proceeds from the sale of the Santa ▇▇▇▇▇ Racetrack (including
associated artwork).
17. Subsidiaries Guaranty. Section 5.22 is hereby deleted and the follow
ing substituted therefor:
Section 5.22. Guaranties, Pledges and Subordination Agreements. The
Borrower, simultaneously herewith, shall cause MOC, as well as each of
the Borrower's and MOC's Consolidated Subsidiaries (other than, in the
case of the Borrower, those Subsidiaries set forth on Schedule 5.22
attached hereto, consisting of those Persons whose assets are
currently contemplated to be sold to HealthSouth Corpora tion
(provided, however, if such sale is not consummated on or before
February 15, 1999, the Borrower promptly shall cause each such
Subsidiary to deliver a Guaranty and a Pledge), and, in the case of
MOC, MOC Healthcare Company, The Santa ▇▇▇▇▇ Companies, Inc. and its
Subsidiaries, Meditrust Acquisition Company and Meditrust Operating
LLC) and, in the case of the Borrower and MOC, any Subsidiaries
holding only liquor licenses, to execute and deliver to the
Administrative Agent, for the benefit of the Banks, a Guaranty and the
Pledges. In addition, within twenty (20) Domestic Business Days' after
the creation of any Subsidiary or Minority Holding, the Borrower
shall, or shall cause MOC to, cause any such Subsidiary to execute and
deliver to the Administrative Agent, for the benefit of the Banks, a
Guaranty and the applicable parent(s) of such Subsidiary or Minority
Holding, to execute and deliver to the Administrative Agent, for the
benefit of the Banks and the trustee(s) for the benefit of the
Bondholders, the applicable Pledge. The
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Banks hereby acknowledge and agree that, provided that no Event of
Default shall have occurred and be continuing, the Borrower and MOC
shall have the right to sell, or cause to be sold, the assets or stock
of, or other ownership interests in, any such Subsidiary or Minority
Holding, and to accept prepayment or repayment of any Healthcare
Mortgage or intercompany loan, free and clear of the Lien of the
applicable Pledge, provided further that sale, prepayment or repayment
shall otherwise be in accordance with the provisions of the Credit
Agreement, including, without limitation, Sections 2.10 and 5.21. In
addition, the Banks further acknowledge and agree that, provided no
Event of Default shall have occurred and be continuing, the Borrower
and MOC shall have the right to transfer assets, stock and other
ownership interests among their respective Subsidiaries and Minority
Holdings, to form additional Subsidiaries and Minority Holdings, to
merge Subsidiaries with each other or their parent entities, and to
dissolve Subsidiaries that no longer hold any assets, provided,
however, that at all times the Administrative Agent shall hold, for
the benefit of the Banks and the Bondholders, a perfected first
priority Lien on the stock, partnership, membership or other ownership
interests in all existing Subsidiaries and Minority Hold ings of the
Borrower and MOC (except as specifically set forth above).
(b) The Borrower, simultaneously herewith, shall cause MOC, as well as
each of the Borrower's and MOC's applicable Consolidated Subsidiaries
that are the holders of any intercompany debt to execute and deliver
to the Administrative Agent, for the benefit of the Banks and
Bondholders, a Subordination Agreement. In addition, if at any time
during the term of the Loans, any other Subsidiary shall be come the
holder of any debt, the obligor of which is the Borrower, MOC or any
Subsidiary or either, then such Subsidiary shall imme diately execute
and deliver to the Administrative Agent, for the benefit of the Banks
and Bondholders, together with the applicable Pledge, a Subordination
Agreement.
18. Additional Covenants. (a) The following Section 5.23 is hereby added to
the Credit Agreement:
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Section 5.23. The FEITS Agreement. The Borrower shall not amend the
FEITS Agreement as in effect as of today (the "Current FEITS
Agreement") in any way that would result in (i) any addi tional cash
payments to ▇▇▇▇▇▇▇ ▇▇▇▇▇ International or any of its affiliates, (ii)
an increase in the Spread (as defined in the Current FEITS Agreement),
(iii) the granting of any additional mortgage collateral, or (iv)
convert any obligations of the Borrower under the Current FEITS
Agreement into "Debt" or other recourse contractual obligation. If an
Event of Default shall have occurred and be contin uing, the Borrower
shall not amend or modify the Current FEITS Agreement in any way. In
addition, in no event shall any preferred stock issued by the
Borrower, MOC, or any Subsidiary in connec tion with the settlement of
the FEITS Agreement include a put option prior to July 17, 2003. The
Borrower will use its best efforts to settle the FEITS Agreement in
accordance with the provisions hereof on or before November 30, 1998.
(b) The following Section 5.24 is hereby added to the Credit Agreement:
Section 5.24. Repurchase of Securities. The Borrower shall not, and
shall not permit MOC or any of their Consolidated Subsidiaries to
repurchase any of their stock or prepay any of the junior securi ties,
other than in connection with the settlement of the FEITS Agreement,
as contemplated by Section 5.23 hereof.
(c) The following Section 5.25 is hereby added to the Credit Agreement:
Section 5.25. Healthcare Investments. In the event that the Borrower,
MOC or any of their Subsidiaries makes any payment to ▇▇▇▇▇▇▇ ▇▇▇▇▇
International or any of its Affiliates (collectively, "▇▇▇▇▇▇▇ ▇▇▇▇▇")
pursuant to Sections 4.2(ii) or 4.3 of the Settlement Agreement, dated
as of November 11, 1998, which constitutes part of the FEITS
Agreement, or as a Black-out Period Extension Fee (as defined in the
Amendment to Purchase Agreement, dated as of November 11, 1998, which
constitutes a part of the FEITS Agreement) (the "▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
Payments"), then for the period from January 1, 1999 through December
31, 1999, the Borrower and/or MOC shall not, and shall not permit any
of their Subsidiaries to grant mortgage loans secured by Healthcare
Proper-
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ties or acquire Healthcare Properties under transactions that are not
committed to as of November 23, 1998 (by contract, commitment, lease
or otherwise) (the "Healthcare Investments"), the amount of which
shall exceed $125,000,000 in the aggregate, less any ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ Payments (the "Healthcare Investment Cap"). Notwithstanding the
foregoing, however, (i) if the Borrower, MOC and/or their Subsidiaries
complete one or more offerings or private place ments of Securities of
not less than $100,000,000, the Healthcare Investment Cap shall be
equal to $125,000,000, and (ii) this Section 5.25 shall be of no
further force or effect at such time as the Bor rower, MOC and/or
their Subsidiaries shall have completed one or more offerings or
private placements of Securities equal to not less than the sum of
$100,000,000 and the ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Payments actually made. For
purposes of the foregoing, (a) Healthcare Invest ments shall not
include refinancings, substitutions of properties or the like, to the
extent that such transactions do not constitute the investment of
additional funds, and (b) the ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Payments shall be
reduced by the amount of Net Cash Proceeds attributable to the sale of
the Santa ▇▇▇▇▇ Artwork.
19. Events of Default. The following Section 6.1(p) is hereby added to the
Credit Agreement:
(p) the filing group under Section 13(d) of the Securities Exchange
Act of 1934, as amended, consisting of the Bass Brothers interests,
▇▇▇▇▇▇ & Co., and their affiliates do not maintain ownership of at
least 10 million shares of common stock of the Borrower through
December 31, 1999 (unless a reduction is required to maintain the
Borrower's status as a REIT).
20. Effective Date. This Amendment shall become effective when each of the
following conditions is satisfied (or waived by the Required Banks) (the date
such conditions are satisfied or waived being deemed the "Effective Date"):
(a) the Borrower shall have executed and delivered to the Adminis
trative Agent a duly executed original of this Amendment;
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(b) the Required Banks shall have executed and delivered to the
Administrative Agent a duly executed original of this Amendment;
(c) MOC shall have executed and delivered to the Administrative Agent
a duly executed original of the Confirmation of Guaranty;
(d) each of the Guarantors (as defined in the Guaranty) shall have
executed and delivered to the Administrative Agent a duly executed
original of the Guaranty;
(e) each of the parties thereto shall have executed and delivered to
the Administrative Agent duly executed originals of each of the
Pledges;
(f) each of the Affiliated Lenders (as defined in the Subordination
Agreement) shall have executed and delivered to the Administrative
Agent a duly executed original of the Subordination Agreement;
(g) Meditrust Mortgage Investments, Inc. shall have delivered to the
Administrative Agent all original executed notes evidencing the
Healthcare Mortgages, endorsed in blank, executed assignments in blank
of the Healthcare Mortgages and related recorded documents, in
recordable form, executed assignments in blank of all unrecorded
documents executed in connection with the Healthcare Mortgages,
together with UCC-3 Financing Statements, in blank;
(h) the Borrower and Meditrust Mortgage Investments, Inc. shall have
delivered to the Administrative Agent all original executed
Intercompany Notes (as defined in the Subordination Agreement),
endorsed in blank;
(i) the Pledgors (as defined in the Equity Interests Pledge and Secu
rity Agreement) shall have delivered to the Administrative Agent all
original stock certificates in connection with pledges thereunder of
interests in corporations, together with executed stock powers, in
blank;
(j) each of the pledgors under the Pledges shall have executed and
delivered to the Administrative Agent UCC-1 Financing Statements;
(k) the Administrative Agent shall have received an opinion of ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ & Fish, LLP and ▇▇▇▇▇▇▇, Procter & ▇▇▇▇ LLP, counsel for the
Borrower, MOC and the other parties (the "Other Parties") to the
Pledges, the Guaranty and the Subordination Agreement (other than the
Administrative Agent), acceptable to the Administrative Agent, the
Banks and their counsel;
(l) the Administrative Agent shall have received all documents the
Administrative Agent may reasonably request relating to the exis-
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tence of the Borrower, MOC, and the Other Parties, the authority for
and the validity of this Amendment, the Pledges, the Subordina tion
Agreement and the other documents executed in connection therewith,
and any other matters relevant hereto, all in form and substance
reasonably satisfactory to the Administrative Agent. Such
documentation shall include, without limitation, the certificate of
incorporation and by-laws (or other organizational documents) of the
Borrower, MOC, and the Other Parties, as amended, modified or
supplemented prior to the Effective Date, each certified to be true,
correct and complete by an officer of the Borrower, MOC or the Other
Parties, as of a date not more than ten (10) days prior to the
Effective Date, together with a good standing certificate from the
Secretary of State (or the equivalent thereof) of the State of ▇▇▇▇
▇▇▇▇ with respect to the Borrower and MOC and from the applicable
Secretary of State with respect to each of the Other Parties, each to
be dated not more than ten (10) days prior to the Closing Date;
(m) the Administrative Agent shall have received all certificates,
agreements and other documents and papers referred to in this
Amendment, unless otherwise specified, in sufficient counterparts,
satisfactory in form and substance to the Administrative Agent in its
reasonable discretion;
(n) the Administrative Agent shall have received UCC-1 searches,
ordered by the Borrower, with respect to the Borrower, MOC and each of
the Other Parties that are parties to the Pledges;
(o) the Borrower, MOC and each of the Other Parties shall have taken
all actions required to authorize the execution and delivery of this
Amendment, the Pledges, the Subordination Agreement, the Guaranty, the
Confirmation of Guaranty and the other documents executed in
connection herewith and the performance thereof by the Borrower, MOC
and the Other Parties;
(p) the Administrative Agent shall have received, for its and all
other Banks' account, a fee equal to 0.125% of the Commitments, and
the reasonable fees and expenses accrued through the Effective Date of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP;
(q) the representations and warranties of the Borrower contained in
the Credit Agreement shall be true and correct in all material re
spects on and as of the Effective Date; and
(r) receipt by the Administrative Agent and the Banks of a certifi
cate of an officer of the Borrower certifying that the Borrower is in
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compliance with all covenants of the Borrower contained in the Credit
Agreement, including, without limitation, the requirements of Section
5.8, as of the Effective Date.
21. Post-Closing. Notwithstanding anything contained herein to the
contrary, on or before December 14, 1998, the Borrower shall deliver to the
Administrative Agent, (i) a complete table of contents of the mortgage loan
files with respect to all the Healthcare Mortgages, (ii) recording information
(which may be in the form of copies of the applicable pages of the mortgagee
title insurance policies) with respect to each Healthcare Mortgage, (iii)
executed amendments to any of the Subsidiary Operating Agreements set forth on
Schedule 3 to the Equity Interest Pledge and Security Agreement, so as to permit
the pledge pursuant thereto, as well as any transfer, whether by foreclosure or
otherwise, pursuant thereto, provided, however, that with respect to those
amendments to Subsidiary Operating Agreements that require the consent of a
Person that is not an Affiliate of the Borrower or MOC, the Borrower and/or MOC
shall only be required to use reasonable, good faith efforts to deliver the
same, and (iv) copies of the Subsidiary Operating Agreements and other
documents, if any, set forth on Schedule 4 to the Equity Interest Pledge and
Security Agreement. In addition, at any time during the continuance of an Event
of Default, upon request by the Administrative Agent, the Borrower promptly
shall deliver to the Administrative Agent copies of the entire Healthcare
Mortgages loan files.
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22. Entire Agreement. This Amendment constitutes the entire and final
agreement among the parties hereto with respect to the subject matter hereof and
there are no other agreements, understandings, undertakings, representations or
warranties among the parties hereto with respect to the subject matter hereof
except as set forth herein.
23. Governing Law. This Amendment shall be governed by, and con strued in
accordance with, the law of the State of New York.
24. Counterparts. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
agree ment, and any of the parties hereto may execute this Amendment by signing
any such counterpart.
25. Headings, Etc. Section or other headings contained in this Amendment
are for reference purposes only and shall not in any way affect the meaning or
interpretation of this Amendment.
26. No Further Modifications. Except as modified herein, all of the terms
and conditions of the Credit Agreement, as modified hereby shall remain in full
force and effect and, as modified hereby, the Borrower confirms and ratifies all
of the terms, covenants and conditions of the Credit Agreement in all respects.
16
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
BORROWER: MEDITRUST CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
17
BANKS:
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK, as a
Bank and as Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
18
BANKERS TRUST COMPANY, as a Bank
and as Syndication Agent
By: /s/ G. ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: G. ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
19
FLEET NATIONAL BANK, as a Bank and as
Co-Documentation Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
20
BANKBOSTON, N.A., as a Bank and as Co-
Documentation Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
21
NATIONSBANK, N.A., as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
22
VIA BANQUE, as a Bank
By:___________________________________
Name:
Title:
▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇, as a Bank
By:___________________________________
Name:
Title:
24
PARIBAS CAPITAL FUNDING LLC, as a
Bank
By:___________________________________
Name:
Title:
25
THE TRAVELERS INSURANCE COMPANY,
as a Bank
By:___________________________________
Name:
Title:
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇▇▇), INC., as a
Bank
By:___________________________________
Name:
Title:
27
CANADIAN IMPERIAL BANK OF COM
MERCE, as a Bank
By:___________________________________
Name:
Title:
28
ML CLO XIX STERLING (CAYMAN) LTD.
By: Sterling Asset Manager, LLC, as
its Investment Advisor
By:_______________________________
Name:
Title:
29
▇▇▇▇▇▇▇ ▇▇▇▇▇ GLOBAL INVESTMENT
SERIES: INCOME STRATEGIES PORTFOLIO
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management LP,
as Investment Advisor
By:_______________________________
Name:
Title:
30
▇▇▇▇▇▇▇ ▇▇▇▇▇ PRIME RATE PORTFOLIO
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management LP,
as Investment Advisor
By:_______________________________
Name:
Title:
31
▇▇▇▇▇▇▇ ▇▇▇▇▇ DEBT STRATEGIES
PORTFOLIO
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset management LP,
as Investment Advisor
By:_______________________________
Name:
Title:
32
MERRILL, LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇ INC.
By:___________________________________
Name:
Title:
33
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL
SENIOR FLOATING RATE FUND
By:___________________________________
Name:
Title:
34
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL
SENIOR INCOME TRUST
By:___________________________________
Name:
Title:
35
AERIES FINANCE LTD.
By:___________________________________
Name:
Title:
36
CERES FINANCE LTD.
By:___________________________________
Name:
Title:
37
STRATA FUNDING LTD.
By:___________________________________
Name:
Title:
38
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING,
INC.
By:___________________________________
Name:
Title:
39
CREDITANSTALT CORPORATE FINANCE
INC.
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
40
BANK ONE, ARIZONA, NA
By:___________________________________
Name:
Title:
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇- ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇, ▇▇▇ ▇▇▇▇ BRANCH
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
42
CAPTIVA FINANCE LTD.
By:___________________________________
Name:
Title:
43
CAPTIVA II FINANCE LTD.
By:___________________________________
Name:
Title:
▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
By:___________________________________
Name:
Title:
45
DLJ CAPITAL FUNDING, INC.
By:___________________________________
Name:
Title:
46
DRESDNER KLEINWORT ▇▇▇▇▇▇
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ BRANCH
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
By:___________________________________
Name:
Title:
49
KEY CORPORATE CAPITAL INC.
By:___________________________________
Name:
Title:
50
KZH III LLC
By:___________________________________
Name:
Title:
51
KZH SHOSHONE LLC
By:___________________________________
Name:
Title:
52
KZH STERLING LLC
By:___________________________________
Name:
Title:
53
▇▇▇▇▇▇ SYNDICATED LOAN FUNDING
TRUST
BY: ▇▇▇▇▇▇ COMMERCIAL PAPER
INC., NOT IN ITS INDIVIDUAL
CAPACITY BUT SOLELY AS ASSET
MANAGER
By:_______________________________
Name:
Title:
54
ML CBO IV (CAYMAN) LTD.
By: Highland Capital Management, L.P.,
as Collateral Manager
By:_______________________________
Name:
Title:
55
MOUNTAIN CLO TRUST
By:___________________________________
Name:
Title:
56
OXFORD STRATEGIC INCOME FUND
By: ▇▇▇▇▇ ▇▇▇▇▇ Management
as Investment Advisor
By:_______________________________
Name:
Title:
57
▇▇▇ CAPITAL FUNDING L.P.
By: Highland Capital Management, as
Collateral Agent
By:_______________________________
Name:
Title:
58
PAMCO CAYMAN LTD.
By: Highland Capital Management, as
Collateral Manager
By:_______________________________
Name:
Title:
59
SENIOR DEBT PORTFOLIO
By: Boston Management and Research
as Investment Advisor
By:_____________________________
Name:
Title:
60
▇▇▇▇▇▇▇▇▇▇ BANK & TRUST COMPANY
By:___________________________________
Name:
Title:
61
SCHEDULE 9
----------
SECURITIES
1. 7.4% Senior Notes due 2005, under Indenture, dated as of September 15,
1995, between La Quinta Inns, Inc. and U.S. Trust Company of Texas, N.A.
2. 7.25% Senior Notes due 2004, under Indenture, dated as of September 15,
1995, between La Quinta Inns, Inc. and U.S. Trust Company of Texas, N.A.
3. Medium term Notes due from 9 Months to 30 Months, under Indenture, dated as
of September 15, 1995, between La Quinta Inns, Inc. and U.S. Trust Company
of Texas, N.A.
4. 7.375% Notes due July 15, 2000 pursuant to the First Supplemental Inden
ture, dated as of July 26, 1995, to Indenture, dated as of July 26, 1995,
between Meditrust and Fleet National Bank, as trustee, as supplemented by
the Eighth Supplemental Indenture, dated as of November 5, 1997, between
Meditrust Corporation, formerly known as Santa ▇▇▇▇▇ Realty Enterprises,
Inc. (successor by merger to Meditrust), and State Street Bank and Trust
Company (successor trustee to Fleet National Bank).
5. 7.60% Notes due July 15, 2001 pursuant to the First Supplemental Indenture,
dated as of July 26, 1995, to Indenture, dated as of July 26, 1995, between
Meditrust and Fleet National Bank, as trustee, as supplemented by the
Eighth Supplemental Indenture, dated as of November 5, 1997, between
Meditrust Corporation, formerly known as Santa ▇▇▇▇▇ Realty Enterprises,
Inc. (succes sor by merger to Meditrust), and State Street Bank and Trust
Company (successor trustee to Fleet National Bank).
6. 8.54% Convertible Senior Notes due July 1, 2000 pursuant to the Second
Supplemental Indenture, dated as of July 28, 1995, to Indenture, dated as
of July 26, 1995, between Meditrust and Fleet National Bank, as trustee, as
supplemented by the Eighth Supplemental Indenture, dated as of November 5,
1997, between Meditrust Corporation, formerly known as Santa ▇▇▇▇▇ Realty
Enterprises, Inc. (successor by merger to Meditrust), and State Street Bank
and Trust Company (successor trustee to Fleet National Bank).
7. 8.56% Convertible Senior Notes due July 1, 2002 pursuant to the Second
Supplemental Indenture, dated as of July 28, 1995, to Indenture, dated as
of July 26, 1995, between Meditrust and Fleet National Bank, as trustee, as
supplemented by the Eighth Supplemental Indenture, dated as of November 5,
1997, between Meditrust Corporation, formerly known as Santa ▇▇▇▇▇
62
Realty Enterprises, Inc. (successor by merger to Meditrust), and State
Street Bank and Trust Company (successor trustee to Fleet National Bank).
8. Medium-Term Notes due from 9 Months to 30 Years from Date of Issue,
pursuant to the Third Supplemental Indenture, dated as of August 10, 1995,
to Indenture, dated as of July 26, 1995, between Meditrust and Fleet
National Bank, as trustee, as supplemented by the Eighth Supplemental
Indenture, dated as of November 5, 1997, between Meditrust Corporation,
formerly known as Santa ▇▇▇▇▇ Realty Enterprises, Inc. (successor by merger
to Meditrust), and State Street Bank and Trust Company (successor trustee
to Fleet National Bank).
9. 7.82% Notes due September 10, 2026, pursuant to the Fourth Supplemental
Indenture, dated as of September 10, 1996, to Indenture, dated as of July
26, 1995, between Meditrust and Fleet National Bank, as trustee, as supple
mented by the Eighth Supplemental Indenture, dated as of November 5, 1997,
between Meditrust Corporation, formerly known as Santa ▇▇▇▇▇ Realty
Enterprises, Inc. (successor by merger to Meditrust), and State Street Bank
and Trust Company (successor trustee to Fleet National Bank).
10. 7% Notes due August 15, 2007, pursuant to the Fifth Supplemental Inden
ture, dated as of August 12, 1997, to Indenture, dated as of July 26, 1995,
between Meditrust and Fleet National Bank, as trustee, as supplemented by
the Eighth Supplemental Indenture, dated as of November 5, 1997, between
Meditrust Corporation, formerly known as Santa ▇▇▇▇▇ Realty Enterprises,
Inc. (successor by merger to Meditrust), and State Street Bank and Trust
Company (successor trustee to Fleet National Bank).
63
SCHEDULE 5.22
-------------
EXCLUDED SUBSIDIARIES
Northeast Arkansas Rehabilitation Limited Partnership
Topeka Associates Limited Partnership
Northern Louisiana Associates Limited Partnership
Acadian Healthcare Associates Limited Partnership
Harco Associates Limited Partnership
Fort Worth Rehabilitation Limited Partnership
