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Exhibit 10.9
AMENDMENT NO. 2 TO LOAN AGREEMENT
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AGREEMENT, made as of the 29th day of January, 2001, 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
KEY CORPORATE CAPITAL INC. (successor-in-interest to KeyBank National
Association), a Michigan corporation, as 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 and the banks signatory thereto (the "EXISTING
BANKS") entered into a certain Loan Agreement dated as of March 28, 1997 (as
heretofore amended by a certain Amendment No. 1 to Loan Agreement dated as of
October 1, 1998, among the Borrowers, the Banks and the Agent, 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
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, extend the Revolving Credit Commitment Termination Date to March
31, 2003 and the Banks and the Agent are willing to amend the Original Loan
Agreement on the terms and conditions hereinafter set forth;
(D) Each of the Banks desire to change its Revolving Credit Commitment
to the amount set forth opposite its name on its signature page hereto and the
Borrowers desire to accept such changed Revolving Credit Commitment; 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;
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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 decreased amount of the
Revolving Credit Commitments of the Banks. 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.
ARTICLE 2. AMENDMENTS TO ORIGINAL LOAN AGREEMENT; SUBSTITUTED NOTES.
SECTION 2.1 The Original Loan Agreement is hereby amended as
follows:
(a) The definition of "Alternate Applicable Margin" appearing
in Article 1 is deleted in its entirety and the following is substituted
therefor:
"'Alternate Applicable Margin' - as at any date of
determination, with respect to LIBOR Loans, the applicable percentage
set forth below based upon the Ratings in effect on such date:
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Either of the following Ratings:
BBB+ or higher by S&P or Baa1 or higher 1.250%
by Xxxxx'x
Either of the following Ratings:
BBB by S&P or 1.325%
Baa2 by Xxxxx'x
Either of the following Ratings:
BBB- by S&P or 1.500%
Baa3 by Xxxxx'x
Either of the following Ratings:
BB+ by S&P or 1.875%
Ba1 by Xxxxx'x
Both of the following Ratings:
Lower than BB+ or no investment grade 2.200%
Rating by S&P and lower than Ba1 or no
investment grade Rating by Xxxxx'x
For purposes of the foregoing: (i) if the Ratings established by S&P
and Moodys shall fall within different levels, the Alternate Applicable
Margin shall be based upon the higher of the two ratings unless one of
the two ratings is two or more levels lower than the other, in which
case the Alternate Applicable Margin shall be determined by reference
to the lower of the two Ratings, and (ii) if any Rating shall be
changed (other than as a result of a change in the rating system of the
applicable Rating Agency), such change shall be effective as of the
date on which it is first announced by the Rating Agency making such
change. Each such change in the Alternate Applicable Margin shall apply
to all outstanding LIBOR Loans during the period commencing on the
effective date of such change and ending on the date immediately
preceding the effective date of the next such change. If the rating
system of any Rating Agency shall change, the parties hereto shall
negotiate in good faith to amend the references to specific ratings in
this definition to reflect such changed rating system."
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(b) The definition of "Applicable Margin" appearing in Article
1 is deleted in its entirety.
(c) The definition of "Borrowing Base" appearing in Article 1
is amended by deleting therefrom in its entirety clause (i) thereof and
substituting therefor the following clause (i):
"(i) (A) from January 29, 2001 through and including
February 28, 2001, 66 2/3% of Eligible Healthcare Assets,
(B) from March 1, 2001 through and including August 28,
2001, 63% of Eligible Healthcare Assets,
(C) from August 29, 2001 through and including February
28, 2002, 60% of Eligible Healthcare Assets,
(D) from March 1, 2002 through and including May 29, 2002,
58% of Eligible Healthcare Assets,
(E) from May 30, 2002 through and including November 29,
2002, 55% of Eligible Healthcare Assets,
(F) from November 30, 2002 through and including March 31,
2003, 52% of Eligible Healthcare Assets; and
(G) at any time, in the event that the Borrower does not
maintain an investment grade Rating from either S&P or Xxxxx'x, 50% of
Eligible Healthcare Assets,
in each case, plus"
(d) The definition of "Commitment Fee" appearing in Article 1
is deleted in its entirety.
(e) The definition of "Commitment Fee Percentage" appearing in
Article 1 is deleted in its entirety.
(f) The definition of "EBITDAR" appearing in Article 1 is
deleted in its entirety and the following is substituted therefor:
"'EBITDAR' - for any period, with respect to any
Facility, pre-tax net income PLUS Operator Interest Expense, Mortgage
Expense (but excluding therefrom any amounts relating to principal),
Lease Rental Expense, depreciation, amortization, management fees as
reported by the Operator less an imputed management fee equal to (x)
with respect to Long-Term Care Facilities, five (5%) percent of such
Facility's net revenues, and (y) with respect to all other Facilities,
three (3%) percent of such Facility's net revenues; provided, however,
that net income (or net loss) shall be computed without giving effect
to extraordinary losses or gains (all as determined in accordance with
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GAAP), and provided, further, EBITDAR may be further adjusted to
reflect other non-recurring items as mutually agreed upon by the
Borrowers, the Agent and the Syndication Agent (but in no event shall
the aggregate amount of all such adjustments exceed $20,000,000 over
the term of this Agreement), which adjustment(s) shall be set forth in
a footnote to the Borrowing Base Certificate (whether or not such
adjustments impact availability under the Borrowing Base) disclosing
the Facility(ies) impacted thereby, the adjustment(s) taken and the
Fixed Charge Coverage prior to such adjustment(s)."
(g) The definition of "D&P" appearing in Article 1 is deleted
in its entirety.
(h) The definition of "Eligible Healthcare Assets" is amended
by deleting clause (z) thereof in its entirety and substituting
therefor the following:
"(z) any individual Facility which is part of an
Operator's Pooled Facilities (regardless of the number of Facilities
comprising such Pooled Facilities) that is in a stage of development or
"fill-up" may be included as part of such Operator's Pooled Facilities
if (1) such Facility has received its certificate of occupancy, and (2)
such Facility has a Fixed Charge Coverage of not less than .70 to 1.00,
and for purposes of this clause (z) only, as at any date of computation
thereof, Fixed Charge Coverage shall be determined:
(i) During the period commencing on the date
of receipt of a certificate of occupancy (or if such Facility has been
transferred to a new Operator, the date of transfer, as applicable) for
such Facility through the last day of the fifteenth (15th) month
thereafter, based on the fiscal quarter immediately preceding such date
of determination;
(ii) As at the last day of the eighteenth
(18th) month following the date of receipt of a certificate of
occupancy or the date of transfer, as applicable, for such Facility,
based on the two fiscal quarters immediately preceding such date of
determination;
(iii) As at the last day of the twenty-first
(21st) month following the date of receipt of a certificate of
occupancy or the date of transfer, as applicable, for such Facility,
based on the three fiscal quarters immediately preceding such date of
determination; and
(iv) As at the last day of the twenty-fourth
(24th) month following the date of receipt of a certificate of
occupancy or the date of transfer, as applicable, for such Facility and
at all times thereafter, based on the four fiscal quarters immediately
preceding such date of determination.
Notwithstanding anything to the contrary contained in clauses (z)(i)
through (iv) above, in the event any Facility covered by this clause
(z) has a Fixed Charge Coverage of not less than .70 to 1.00 prior to
the last day of the fifteenth (15th) month following the date of
receipt of a certificate of occupancy or the date of transfer, as
applicable, for such Facility (the last day of any fiscal quarter in
which such ratio has been met for the first time with respect to such
Facility, is hereinafter referred to as a "COMPLIANCE DATE"), as
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at any date of determination thereof, Fixed Charge Coverage with
respect to such Facility shall be determined:
(i) As at the Compliance Date, based on the
fiscal quarter ending on the Compliance Date;
(ii) As at the last day of the third (3rd)
month following the Compliance Date, based on the two fiscal quarters
immediately preceding such date of determination;
(iii) As at the last day of the sixth (6th)
month following the Compliance Date, based on the three fiscal quarters
immediately preceding such date of determination; and
(iv) As at the last day of the ninth (9th)
month following the Compliance Date and at all times thereafter, based
on the four fiscal quarters immediately preceding such date of
determination.
The foregoing shall be applicable only to a single transfer of a
Facility that is in a stage of development or "fill-up" during the term
of this Agreement. In the event such a Facility is transferred more
than once during the term of this Agreement, the inclusion of such
Facility as an Eligible Healthcare Asset shall be determined without
regard to this clause (z)."
(i) The following new definition is inserted in Article 1 in
its appropriate alphabetic location as follows:
"'Facility Fee' - as defined in subsection 2.7(b) hereof.
(j) The following new definition is inserted in Article 1 in
its appropriate alphabetic location as follows:
"'Facility Fee Percentage' - as at the last day of
any fiscal quarter, the applicable percentage set forth below based
upon the Ratings in effect on such date:
Either of the following Ratings:
BBB+ or higher by S&P or Baa1 or higher 0.250%
by Xxxxx'x
Either of the following Ratings:
BBB by S&P or 0.300%
Baa2 by Xxxxx'x
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Either of the following Ratings:
BBB- by S&P or 0.375%
Baa3 by Xxxxx'x
Either of the following Ratings:
BB+ by S&P or 0.500%
Ba1 by Xxxxx'x
Both of the following Ratings:
Lower than BB+ or no investment grade 0.550%
Rating by S&P and lower than Ba1 or no
investment grade Rating by Xxxxx'x
For purposes of the foregoing: (i) if the Ratings established by S&P
and Xxxxx'x shall fall within different levels, the Facility Fee
Percentage shall be based upon the higher of the two ratings unless one
of the two ratings is two or more levels lower than the other, in which
case the Facility Fee Percentage shall be determined by reference to
the lower of the two Ratings, and (ii) if any Rating shall be changed
(other than as a result of a change in the rating system of the
applicable Rating Agency), such change shall be effective as of the
date on which it is first announced by the Rating Agency making such
change. Each such change with respect to the Borrowers shall apply at
any time during the period commencing on the effective date of such
change and ending on the date immediately preceding the effective date
of the next such change. If the rating system of any Rating Agency
shall change, the parties hereto shall negotiate in good faith to amend
the references to specific ratings in this definition to reflect such
changed rating system."
(k) The definition of "Fleet" appearing in Article 1 is
deleted in its entirety and the following is substituted therefor:
"'Fleet' - Fleet National Bank (successor by merger
to Fleet Bank, N.A.), a national banking association, in its capacity
as a Bank hereunder."
(l) The definition of "Ratings Agencies" appearing in Article
1 is deleted in its entirety and the following is substituted therefor:
"'Ratings Agencies' - Xxxxx'x and S&P."
(m) The phrase "the aggregate amount set forth opposite such
Bank's name on the signature pages hereof" appearing in the definition of the
term "Revolving Credit
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Commitment" in Article 1 of the Original Loan Agreement shall be deemed to
refer to the amounts set forth opposite each Bank's name on the signature
pages hereto.
(n) The definition of "Revolving Credit Commitment Termination
Date" appearing in Article 1 is amended by deleting the date "March 28, 2001"
therefrom and substituting therefor the date "March 31, 2003".
(o) 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
obligations of the Banks to make loans hereunder up to the aggregate
amount of One Hundred Fifty Million ($150,000,000) Dollars as such
amount may be increased in accordance with Section 2.23 hereof."
(p) Section 2.1 is amended by adding the following immediately
after the first sentence thereof:
"In addition to the foregoing, if, as at June 30, 2001 (as reflected in
the Borrowing Base Certificate due no later than August 29, 2001),
after giving effect to all outstanding Loans there exists less than
$17,500,000 of availability under the Borrowing Base, then from August
29, 2001 until May 30, 2002, the obligation of the Banks to make Loans
hereunder during such period shall also be subject to the demonstration
by the Borrowers that after giving effect to any requested Loan, there
shall be not less than $20,000,000 of availability under the Borrowing
Base. Compliance with the foregoing shall be evidenced by the delivery
to the Agent of a Borrowing Base Certificate(s)."
(q) Subsection 2.5(d) is amended by deleting the period at the
end of such subsection and inserting the following proviso:
"; PROVIDED, HOWEVER, that in the event that clause (i)(G) of the
definition of "Borrowing Base" becomes applicable, the Loans shall be
repaid within ninety (90) days of the date of such clause becoming
applicable in an amount which will cause the aggregate principal amount
of Loans outstanding not to exceed the Borrowing Base as so reduced."
(r) Subsection 2.6(a) is deleted in its entirety and the
following is substituted therefor:
"(a) The Borrowers shall pay to the Agent for the
account of each Bank interest on the unpaid principal amount of each
Loan made by such Bank for the period commencing on the date of such
Loan until such Loan shall be paid in full, at the following rates per
annum:
(i) During such periods that such Loan is a
Base Rate Loan, the Alternate Base Rate;
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(ii) During such periods that such Loan is a
LIBOR Loan, for each Interest Period relating thereto, the LIBOR Rate
for such Loan for such Interest Period PLUS the Alternate Applicable
Margin."
(s) Subsection 2.6(d) is amended by deleting the first
sentence thereof in its entirety and substituting therefor the following:
"(d) In addition to the interest accruing under
subsection (a) above, in the event the daily average amount of
outstanding Loans exceeds fifty (50%) percent of the Total Revolving
Credit Commitment during any fiscal quarter of HCRI (each, a "TEST
PERIOD"), the Borrowers shall pay additional interest on the daily
average amount of the Loans outstanding during such Test Period at a
rate per annum equal to one-eighth of one (.125%) percent."
(t) Subsection 2.7(b) is deleted in its entirety and the
following is substituted therefor:
"(b) The Borrowers shall pay to the Agent for the
account of the Banks, PRO RATA according to their respective
Commitments, a facility fee (the "FACILITY FEE") on the daily average
amount of such Bank's Commitment, for the period from the date hereof
to and including the earlier of (i) the date such Bank's Revolving
Credit Commitment is terminated, and (ii) the Revolving Credit
Commitment Termination Date, at the rate per annum equal to the
Facility Fee Percentage from time to time in effect on the amount of
the Total Revolving Credit Commitment. The accrued Facility Fee shall
be payable on the Quarterly Dates, and on the earlier of (i) the date
the Total Revolving Credit Commitment is terminated, or (ii) the
Revolving Credit Commitment Termination Date, and in the event the
Borrowers reduce the Total Revolving Credit Commitment as provided in
subsection 2.5(b) hereof, on the effective date of such reduction."
(u) Subsection 2.7(d) is deleted in its entirety and the
following is substituted therefor:
"(d) The Origination Fee, the Facility Fee, the
Agency Fee and the Arrangement Fee are hereinafter sometimes referred
to individually as a "FEE" and collectively as the "FEES".
(v) Subsection 2.8(f) is deleted in its entirety and the
following is substituted therefor:
"(f) for general working capital purposes for
day to day operations."
(w) A new Section 2.23 shall be added to Article 2 as follows:
"SECTION 2.23 INCREASE IN REVOLVING COMMITMENTS.
"At any time and from time to time, the Borrowers
may, at their sole expense and effort and after consulting with the
Agent, request : (i) one or more Banks to increase (in the sole and
absolute discretion of each such Bank) the amount of their
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respective Revolving Credit Commitments, and/or (ii) one or more other
lending institutions acceptable to the Agent to become "Banks" and
extend Revolving Credit Commitments hereunder. To request an increase
pursuant to this Section 2.23, the Borrowers shall submit to the Agent
a written increase request signed by the Borrowers and in form approved
by the Agent, which shall be irrevocable. Each such increase request
shall specify, as the case may be: (A) each such existing Bank and the
amount of the proposed increase in the amount of its Revolving Credit
Commitment, or (B) the proposed new Bank and the Revolving Credit
Commitment for such new Bank. Promptly following receipt of such an
increase request, the Agent shall advise each existing Bank of the
details thereof. Each proposed Bank specified in such increase request
may, in its sole and absolute discretion, unconditionally agree, at any
time prior to the 30th day following the date thereof, to: (x) if such
proposed Bank is an existing Bank, the proposed increase in the amount
of its Revolving Credit Commitment specified therein, and (y) if such
proposed Bank is a new Bank, be and become a "Bank" hereunder having a
Revolving Credit Commitment equal to the amount set forth in such
increase request. To so agree, each such proposed Bank shall deliver to
the Agent and the Borrowers a written agreement in a form approved by
the Agent and signed by such proposed Bank. If one or more of such
proposed Banks shall have so agreed, then, on the 35th day following
the date of such increase request, the Revolving Credit Commitment of
each such proposed Bank that is an existing Bank shall be increased by
the applicable amount specified in such increase request and each such
proposed Bank that is a new Bank shall become a "Bank" hereunder having
a Revolving Credit Commitment equal to the amount set forth in such
increase request, provided that (i) at the time thereof and immediately
after giving effect thereto, no Default shall have occurred and be
continuing, (ii) immediately after giving effect thereto, the aggregate
amount of all increases of the Total Revolving Credit Commitments made
under this Section 2.23 shall not exceed $25,000,000, (iii) the
increase of the Total Revolving Credit Commitments specified in such
increase request shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $5,000,000 and (iv) the Agent
shall have received the prior written consent (which consent shall not
be unreasonably withheld) of the Required Banks. Simultaneously with
each increase of the Revolving Credit Commitments under this Section
2.23, each increasing Bank and each New Bank shall, to the extent
necessary, purchase from each other existing Bank, and each other
existing Bank shall sell to each increasing Bank or new Bank, 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 interests, rights and obligations under this Agreement and
its Loans of the other existing Banks to the extent necessary so that,
immediately after giving effect to such increase, the outstanding
Revolving Loans shall be held by the Banks ratably in accordance with
their Revolving Credit Commitments, provided that each such assignor
Bank shall have received (to the extent of the interests, rights and
obligations assigned) payment of the outstanding principal amount of
its Loans, accrued interest thereon, accrued fees, 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)."
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(x) Section 5.6 is amended by deleting in its entirety
therefrom the reference to "45 days" and substituting therefor "60 days".
(y) Subsection 5.8(a) is amended by deleting in its entirety
therefrom the reference to "45 days" and substituting therefor "75 days".
(z) Section 5.13 is deleted in its entirety and the following
is substituted therefor:
"SECTION 5.13 ADDITIONAL INFORMATION.
Such other material additional information regarding
the business, affairs and condition of the Borrowers as Key or Fleet
may from time to time request, including, without limitation, as soon
as available but in any event not less than forty-five (45) days after
the end of each fiscal quarter of HCRI, schedules, in form and
substance satisfactory to the Agent, with respect to HCRI on a
consolidated basis, of recorded liabilities, unfunded commitments,
contingent liabilities and other similar material items, in each case,
covering such quarter."
(aa) Section 6.2 is amended by adding the following sentence
at the end thereof:
"Notwithstanding the foregoing, the Borrowers agree that the Agent
shall be permitted to conduct or cause to be conducted an annual field
audit at the Borrowers' expense."
(bb) Subsections 6.9(b) and (c) are deleted in their entirety
and the following is substituted therefor:
"(b) Tangible Net Worth of not less than
$625,000,000, plus 100% of the Net Issuance Proceeds received by HCRI
(or any of its Subsidiaries) in connection with the issuance of any
equity interest in HCRI (or any of its Subsidiaries) other than any
such equity interests issued in connection with any dividend
reinvestment program(s).
(c) Interest Coverage of not less than 250%."
(cc) Section 6.16 is deleted in its entirety and the following
is substituted therefor:
"SECTION 6.16 OPERATOR CONCENTRATION.
Ensure that not more than ten (10%) percent of the
Borrowers' Investments are maintained with a single Operator (including
any Affiliates of such Operator); notwithstanding the foregoing, the
Borrowers may maintain Investments with no more than two Operators
(including any Affiliates thereof) in excess of ten (10%) percent of
the Borrowers' Investments provided that the Borrowers' Investment in
such Operators (x) individually does not exceed twenty (20%) percent of
the Borrowers' Investments, and (y) together does not exceed thirty
(30%) percent of the Borrowers' Investments."
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(dd) 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 ten
(10%) percent of HCRI's consolidated Tangible Net Worth as of the end
of the most recently completed fiscal quarter of HCRI; and"
(ee) Subsection 7.2(c) is deleted in its entirety and the
following is substituted therefor:
"(c) Liens securing Indebtedness created after the
date hereof and permitted under subsection 7.1(f) hereof; and"
(ff) Section 7.16 is deleted in its entirety and the following
is substituted therefor:
"SECTION 7.16 CONSTRUCTION INVESTMENTS.
Permit the outstanding principal amount, accrued
interest on and related fees in connection with its Construction
Investments to exceed an amount equal to ten (10%) percent of the
Borrowers' consolidated Investments in Healthcare Assets; provided, the
Borrowers shall not make a Construction Investment for a Facility
unless (i) there is included in the terms thereof an agreement for the
conversion of the Borrower(s) interests in the Facility upon the
completion thereof into full ownership or a mortgage interest, and (ii)
if a mortgage interest, the Borrower(s) shall retain a first Lien on
such Facility."
(gg) Section 10.6 is amended by deleting the second
parenthetical appearing in clause (ii) thereof in its entirety and substituting
therefor the following:
"(other than Section 8.1 and Section 8.4 hereof)"
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
(hereinafter referred to individually as a "Substituted Note" and collectively
as the "Substituted Notes"). Each of the Banks shall, upon the execution and
delivery by the Borrowers of its applicable Substituted Note as herein provided,
xxxx 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
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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. 2,
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 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. 2.
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.
(i) 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, 7.1, 7.2 and 7.11 to the Original Loan Agreement are each hereby
amended and restated in their entirety as set forth on Schedules 3.6, 7.1, 7.2
and 7.11 annexed hereto.
(b) (i) The execution, delivery and performance by each
Borrower of this Amendment No. 2 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. 2
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. 2 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. 2 to Loan Agreement shall become effective
on the date of the fulfillment (to the satisfaction of the Agent) of the
following conditions precedent:
13
14
(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 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 all fees provided
for in the fee letter dated November 21, 2000.
(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. 2, 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 corporate action taken by each of
the Borrowers to authorize the execution, delivery and performance of this
Amendment No. 2, 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 Certificate of Incorporation and
By-laws 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 certificates of incorporation or
certificates of limited partnership, as the case may be, of each of the
Additional Borrowers, certified by the Secretary of State of their respective
states of organization;
(iv) The by-laws of each of the corporate Additional
Borrowers, certified by their respective secretaries;
(v) 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
(vi) 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
14
15
herein, except that (i) the terms "Loan Agreement" and "Note(s)" shall be deemed
to refer, respectively, to the Original Loan Agreement, as amended hereby and
the Substituted Note(s), (ii) the term "this Agreement" shall be deemed to refer
to this Agreement; and (iii) the terms "hereunder" and "hereto" shall be deemed
to refer to this Agreement.
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 Agreement 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]
15
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the date first above written.
HEALTH CARE REIT, INC.
HCRI PENNSYLVANIA PROPERTIES, INC.
HCRI OVERLOOK GREEN, 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 HEALTH CARE REIT, INC.
ITS MEMBER
HCRI SOUTHERN INVESTMENTS I, INC.
HCRI TENNESSEE PROPERTIES, INC.
PENNSYLVANIA BCC PROPERTIES, INC.
BY /S/ XXXXXX X. XXXXXXX, CHAIRMAN, CEO & PRESIDENT
----------------------------------------------------
TITLE
XXXXXX X. XXXXXXX, as Chief Executive Officer of all of the
aforementioned entities, has executed this Amendment No. 2 to 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 Loan Agreement
separately for each of the above named entities.
16
17
REVOLVING CREDIT COMMITMENT:
----------------------------
$25,714,285.71 KEY CORPORATE CAPITAL INC.,
AS AGENT AND AS A BANK
BY /S/ XXXXXX X. XXXX, SVP
--------------------------------------------------
TITLE
Lending Office for Base Rate Loans and LIBOR Loans:
Key Corporate Capital Inc.
000 Xxxxxx Xxxxxx, XX:XX-00-00-0000
Xxxxxxxxx, Xxxx 00000
Attention: Healthcare Administrative
Assistant
Address for Notices:
Key Corporate Capital Inc.
000 Xxxxxx Xxxxxx, XX:XX-00-00-0000
Xxxxxxxxx, Xxxx 00000
Attention: Xx. Xxxxxx Xxxx
Telecopier: (000) 000-0000
Health Care REIT, Inc.
Signature Page to Amendment No. 2 to Loan Agreement
18
REVOLVING CREDIT COMMITMENT:
----------------------------
$25,714,285.71 FLEET NATIONAL BANK
AS SYNDICATION AGENT AND AS A BANK
BY /S/ XXXXXXXXX X. XXXXXXX, VICE PRESIDENT
-----------------------------------------------
TITLE
Lending Office for Base Rate Loans and LIBOR Loans:
Fleet National Bank
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxxxx X. Xxxxxxx
Address for Notices:
Fleet National Bank
1185 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxxxx X. Xxxxxxx
Telecopier: (000) 000-0000
Health Care REIT, Inc.
Signature Page to Amendment No. 2 to Loan Agreement
19
REVOLVING CREDIT COMMITMENT:
----------------------------
$12,857,142.86 XXXXXX TRUST AND SAVINGS BANK
BY /S/ XXXXXX XXXXXXX, VICE PRESIDENT
--------------------------------------------------
TITLE
Lending Office for Base Rate Loans and LIBOR
Loans:
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx XxXxxxx
Address for Notices:
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx XxXxxxx
Telecopier: (000) 000-0000
Health Care REIT, Inc.
Signature Page to Amendment No. 2 to Loan Agreement
20
REVOLVING CREDIT COMMITMENT:
----------------------------
$12,857,142.86 COMERICA BANK
BY /S/ XXXXX XXXXX, ASSISTANT VICE PRESIDENT
-------------------------------------------------
TITLE
Lending Office for Base Rate Loans and LIBOR Loans:
Comerica Bank
Comerica Tower at Detroit Center
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Address for Notices:
Comerica Bank
Comerica Tower at Detroit Center
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telecopier: (000) 000-0000
Health Care REIT, Inc.
Signature Page to Amendment No. 2 to Loan Agreement
21
REVOLVING CREDIT COMMITMENT:
----------------------------
$21,428,571.43 BANK OF AMERICA
BY /S/ XXXXXXX XXXX, PRINCIPAL
------------------------------------------------
TITLE
Lending Office for Base Rate Loans and LIBOR Loans:
Bank of America
000 Xxxxx X. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxx
Address for Notices:
Bank of America
000 Xxxxx X. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxx
Telecopier: (000) 000-0000
Health Care REIT, Inc.
Signature Page to Amendment No. 2 to Loan Agreement
22
REVOLVING CREDIT COMMITMENT:
----------------------------
$21,428,571.43 BANK ONE, N.A.
BY /S/ XXX X. XXXXXX, FIRST VICE PRESIDENT
------------------------------------------------
TITLE
Lending Office for Base Rate Loans and LIBOR Loans:
Bank One, N.A.
600 Superior
Xxxxxxxxx, Xxxx 00000
Attention: Commercial Loan Operations
Address for Notices:
Bank One, N.A.
Commercial Banking
600 Superior
Xxxxxxxxx, Xxxx 00000
Attention: Xx. Xxx Xxxxxx
Telecopier: (000) 000-0000
Health Care REIT, Inc.
Signature Page to Amendment No. 2 to Loan Agreement
23
REVOLVING CREDIT COMMITMENT:
----------------------------
$12,857,142.86 NATIONAL CITY BANK
BY /S/ XXXXXXX X. BOX, VICE PRESIDENT
--------------------------------------------
TITLE
Lending Office for Base Rate Loans and LIBOR Loans:
National City Bank
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
Attention: Xx. Xxxxxxx Box
Address for Notices:
National City Bank
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
Attention: Xx. Xxxxxxx Box
Telecopier: (000) 000-0000
Health Care REIT, Inc.
Signature Page to Amendment No. 2 to Loan Agreement
24
REVOLVING CREDIT COMMITMENT:
----------------------------
$8,571,428.57 MANUFACTURERS AND TRADERS TRUST COMPANY
BY /S/ XXXXXXX XXXXXXXXX, ASSISTANT VICE PRESIDENT
------------------------------------------------
TITLE
Lending Office for Base Rate Loans and LIBOR Loans:
M & T Center
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxx Xxxx 00000-0000
Attention: Mr. C. Xxxxxxx Xxxxxxxxx
Address for Notices:
M & T Center
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxx Xxxx 00000-0000
Attention: Xx. Xxxxxxx Xxxxxxxxx
Telecopier: (000) 000-0000
Health Care REIT, Inc.
Signature Page to Amendment No. 2 to Loan Agreement
25
REVOLVING CREDIT COMMITMENT:
----------------------------
$8,571,428.57 KBC N.V.
BY /S/ XXXXXXXXX X. XXXXXXXX, VICE PRESIDENT
----------------------------------------------
TITLE
BY /S/ XXXXXX XXXXXXXX, FIRST VICE PRESIDENT
----------------------------------------------
TITLE
Lending Office for Base Rate Loans and LIBOR Loans:
KBC N.V.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx XxXxxxxx
Address for Notices:
KBC N.V.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx XxXxxxxx
Telecopier: (000) 000-0000
Health Care REIT, Inc.
Signature Page to Amendment No. 2 to Loan Agreement
26
EXHIBIT 1
TO AMENDMENT NO. 2 TO LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEY CORPORATE CAPITAL INC., 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 Overlook Green, Inc. Pennsylvania
HCRI Texas Properties, Inc. Delaware
HCRI Texas Properties, Ltd. Texas
HCRI Louisiana Properties, L.P. Delaware
Health Care REIT International, Inc.. Delaware
HCN Atlantic GP, Inc. Delaware
HCN Atlantic LP, Inc. Delaware
HCRI Nevada Properties, Inc. Nevada
ADDITIONAL BORROWERS
--------------------
NAME OF ADDITIONAL BORROWER STATE OF ORGANIZATION
--------------------------- ---------------------
HCN BCC Holdings, Inc. Delaware
HCRI Holdings Trust Massachusetts
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 North Carolina Properties, LLC Delaware
HCRI Southern Investments I, Inc. Delaware
HCRI Tennessee Properties, Inc. Delaware
Pennsylvania BCC Properties, Inc. Pennsylvania
27
ADDENDUM TO SCHEDULE 3.1
TO LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEY CORPORATE CAPITAL INC., AS AGENT
------------------------------------
STATES OF ORGANIZATION AND QUALIFICATION,
AND CAPITALIZATION OF ADDITIONAL BORROWERS
------------------------------------------
HCN BCC HOLDINGS, INC.
----------------------
(i) State of Incorporation:
Delaware
(ii) Capitalization:
$1,000.00 (initial)
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
Ohio, Tennessee
(v) Subsidiaries:
None
HCRI HOLDINGS TRUST
-------------------
(i) State of Incorporation:
Massachusetts
(ii) Capitalization:
N/A
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
None
28
HCRI INDIANA PROPERTIES, INC.
-----------------------------
(i) State of Incorporation:
Delaware
(ii) Capitalization:
$1,000.00 (initial)
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
None
HCRI INDIANA PROPERTIES, LLC
----------------------------
(i) State of Incorporation:
Indiana
(ii) Capitalization:
N/A
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
None
HCRI LIMITED HOLDINGS, INC.
---------------------------
(i) State of Incorporation:
Delaware
(ii) Capitalization:
$1,000.00 (initial)
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
None
29
HCRI MASSACHUSETTS PROPERTIES, INC.
-----------------------------------
(i) State of Incorporation:
Delaware
(ii) Capitalization:
$1,000.00 (initial)
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
None
HCRI MASSACHUSETTS PROPERTIES TRUST
-----------------------------------
(i) State of Incorporation:
Massachusetts
(ii) Capitalization:
N/A
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
None
HCRI NORTH CAROLINA PROPERTIES, LLC
-----------------------------------
(i) State of Incorporation:
Delaware
(ii) Capitalization:
N/A
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
North Carolina
(v) Subsidiaries:
None
30
HCRI SOUTHERN INVESTMENTS I, INC.
---------------------------------
(i) State of Incorporation:
Delaware
(ii) Capitalization:
$1,000.00 (initial)
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
None
HCRI TENNESSEE PROPERTIES, INC.
-------------------------------
(i) State of Incorporation:
Delaware
(ii) Capitalization:
$1,000.00 (initial)
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
None
PENNSYLVANIA BCC PROPERTIES, INC.
---------------------------------
(i) State of Incorporation:
Pennsylvania
(ii) Capitalization:
$1,000.00 (initial)
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
None
31
SCHEDULE 3.6
TO LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEY CORPORATE CAPITAL INC., AS AGENT
------------------------------------
JUDGMENTS, ACTIONS, PROCEEDINGS
-------------------------------
1. JUST LIKE HOME. In February 1999, the Company commenced the
following actions against Just Like Home, Inc. and a related entity: (1) Health
Care REIT, Inc. vs. Just Like Home, Inc., Circuit Court of the Twelfth Judicial
Circuit, Volusia County, Florida, Case No. 99-10221-CIDL, Division-01; (2)
Health Care REIT, Inc. vs. Just Like Home, Inc., Circuit Court of the Fifth
Judicial Circuit, Lake County, Florida, Case No. 99-435CA, Division-5; (3)
Health Care REIT, Inc. vs. JLH Series I, Inc., Circuit Court of the Twelfth
Judicial Circuit, Lake County, Florida, Case No. CA 99-706; (4) Health Care
REIT, Inc. vs. Just Like Home, Inc., Circuit Court of the Twelfth Judicial
Circuit, Polk County, Florida, Case No. 00-0000-0 (Lake Wales); (5) Health Care
REIT, Inc. vs. Just Like Home, Inc., Circuit Court of the Twelfth Judicial
Circuit, Polk County, Florida, Case No. 99-0593 (Xxxxxx City); (6) Health Care
REIT, Inc. vs. Just Like Home, Inc., Circuit Court of the Twelfth Judicial
Circuit, Manatee County, Florida, Case No. 00-0000000. In the above actions, the
Company was seeking to remove the Tenants from the various facilities and
seeking money damages. In a related case, the Contractor for two of the Just
Like Home facilities, KDA, Inc., commenced the following two actions against
Just Like Home, Inc. and the Company: (1) KDA, Inc. vs. Just Like Homes, Inc.,
et al., Circuit Court of the Tenth Judicial Circuit, Polk County, Civil
Division, Case No. GC-G-98-3272; and (2) KDA, Inc. vs. Just Like Homes, Inc., et
al., Circuit Court of the Tenth Judicial Circuit, Polk County, Civil Division,
Case No. GC-G-98-3289. In June 1999, all the parties entered into settlement
agreements of all the above cases. As part of the settlements, the terms of the
various Leases have been shortened and the Tenants are to make Lease payments to
the Company and additional payments to the Contractor. Technically, the cases
remain pending to allow the Company to obtain an immediate order of eviction if
the Tenant defaults and to allow the Contractor to continue its action if the
Tenant defaults. The total amount presently owed to the Contractor is
approximately $176,000.00.
2. HERMITAGE. On November 1, 2000, Xxxxxxxxxx Manor Convalescent
Hospital ("Xxxxxxxxxx Manor") filed a bankruptcy petition under 11 U.S.C. in the
United States Bankruptcy Court for the Northern District of California, Case No.
00-12538. On October 31, 2000, Hermitage Health Care ("Hermitage") filed a
Chapter 11 bankruptcy petition under 11 U.S.C. in the United States Bankruptcy
Court for the Northern District of California, Case No. 00-12535. Xxxxxxxxxx
Manor is the Tenant in one facility and Hermitage is a Guarantor of the
Xxxxxxxxxx Manor Lease.
3. VENCOR. On September 13, 1999, Vencor, Inc. ("Vencor") and numerous
related entities filed separate Chapter 11 bankruptcy petitions under Title 11
of the United States Code in the United States Bankruptcy Court for the District
of Delaware, Case No. 99-3199 through 99-3327. The primary case is Case No.
99-3199. Vencor is a Tenant of three facilities.
4. XXXXXX XXXXXX - ALBANY, NY FACILITY. On June 7, 2000, Xxxxxx Xxxxxx
filed suit against the Tenant and the Company in the County of Xxxxxx Supreme
Court, State of New York, Case No. 2000-1242. Xx. Xxxxxx was an employee of a
sub-contractor working at the facility and he suffered injuries from a fall off
a ladder. He is seeking $2 million dollars in damages but a preliminary
investigation indicates that he only injured his knee in the fall. Insurance is
in place and is providing the defense.
5. MERRILLVILLE, INDIANA. Litigation involving injuries to Xxxxxxxx
Xxxxxxx, incurred during a wanderer episode from the Summerville Facility on or
before October 10, 2000. Tenant has not yet been served but has received
information that a lawsuit has been filed naming Summerville as well as Balanced
Care at Merrillville, Inc., d/b/a Outlook Pointe at Merrillville as defendants.
Tenant will move immediately to be dismissed from the lawsuit on the basis that
the incident occurred prior to Tenant's involvement with the Facility. Tenant
also will demand indemnification from Summerville and Landlord in connection
with any costs, expenses or liabilities incurred in connection with the pending
litigation.
32
SCHEDULE 7.1
TO LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEY CORPORATE CAPITAL INC., AS AGENT
------------------------------------
PERMITTED INDEBTEDNESS
----------------------
I. LINES OF CREDIT
---------------
Total
Available
---------
Key/Fleet Revolving Line of Credit $150,000,000
Capital Bank, NA 25,000,000
------------
$175,000,000
II. EXISTING SECURED DEBT
---------------------
Investment Amount of
Operator Facility Balance Liens/Indebtedness
-------- ------- ---------- -----------------
Various (Bank United pool) Various $142,791,154 $ 60,000,000
Southern Assisted Living, Inc. Bluffton, SC 5,634,679 4,000,000
Horizon Healthcare Corp. San Antonio, TX 866,452 866,452
------------
$ 64,866,452
III. EXISTING OTHER UNSECURED DEBT
-----------------------------
1993 Series Senior Notes $ 15,000,000
1996 Series Senior Notes 30,000,000
1997 Series Senior Notes 60,000,000
1998 Series Senior Notes 100,000,000
1999 Series Senior Notes 50,000,000
------------
$255,000,000
IV. EXISTING CONTINGENT OBLIGATIONS
-------------------------------
Operator Facility Amount of Guaranty
-------- -------- ------------------
Kingston Health Care Naperville, IL $ 4,055,000
Village Management Rockford, IL 4,390,000
ASA Development Tucson, AZ 3,500,000
-----------
$11,945,000
33
SCHEDULE 7.2
TO LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEY CORPORATE CAPITAL INC., AS AGENT
------------------------------------
PERMITTED SECURITY INTERESTS, LIENS AND ENCUMBRANCES
----------------------------------------------------
EXISTING LIENS
--------------
Investment Amount of
Operator Facility Balance Liens/Indebtedness
-------- -------- ------- ------------------
Various (Bank United pool) Various $142,791,154 $ 60,000,000
Southern Assisted Living, Inc. Bluffton, SC 5,634,679 4,000,000
Horizon Healthcare Corp. San Antonio, TX 866,452 866,452
------------
$ 64,866,452
34
SCHEDULE 7.11
TO LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEY CORPORATE CAPITAL INC., AS AGENT
------------------------------------
PERMITTED CAPITAL EXPENDITURES
------------------------------
None
35
EXHIBIT A
TO AMENDMENT NO. 2 TO LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEY CORPORATE CAPITAL INC., AS AGENT
------------------------------------
FORM OF SUBSTITUTED NOTE
------------------------
$____________ DATED: JANUARY 29, 2001
FOR VALUE RECEIVED, each of the undersigned (collectively, the
"BORROWERS"), hereby jointly and severally promises to pay to the order of
___________________________ (the "BANK") on the Revolving Credit Commitment
Termination Date, the principal sum of _____________________ ($__________)
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 Key Corporate Capital Inc., as Agent, at
000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000-0000 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.
36
This Substituted Note is one of the Substituted Notes referred
to in, and is entitled to the benefits of, the Loan Agreement dated as of March
28, 1997, as amended by Amendment No. 1 to Loan Agreement dated as of October 1,
1998 and Amendment No. 2 to 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 further amended, modified or supplemented from time
to time, the "AGREEMENT"). This Substituted Note supersedes and is given in
substitution for the [Note] [Replacement Note] dated [March 28, 1997] [October
1, 1998] 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
37
HEALTH CARE REIT, INC.
HCRI PENNSYLVANIA PROPERTIES, INC.
HCRI OVERLOOK GREEN, 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 HEALTH CARE REIT, INC.
ITS MEMBER
HCRI SOUTHERN INVESTMENTS I, INC.
HCRI TENNESSEE PROPERTIES, INC.
PENNSYLVANIA BCC PROPERTIES, INC.
BY________________________________________
XXXXXX X. XXXXXXX, 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.
3
38
SCHEDULE A
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PRINCIPAL PAYMENTS
Substituted Note dated January 29, 2001
payable to the order of
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Interest Period
(if other than a Amount Unpaid
Principal Base Rate Loan) and of Principal Principal Notation
Date Amount of Loan Interest Rate Repaid Balance Made By
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