EXHIBIT 10.5
FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST AMENDMENT TO CREDIT AGREEMENT (this "Agreement") dated
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as of January 31, 2003, among NATIONWIDE HEALTH PROPERTIES, INC. (the
"Borrower") and JPMORGAN CHASE BANK, as administrative agent (in such capacity,
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together with its successors in such capacity, the "Administrative Agent").
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RECITALS:
A. The Borrower, the Administrative Agent and certain lenders
(the "Lenders") are parties to a Credit Agreement dated as of November 8, 2002
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(said Credit Agreement, as the same may be amended, modified and supplemented
and in effect from time to time, being herein called the "Credit Agreement";
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and, except as otherwise herein expressly provided, all capitalized terms used
herein shall have the meaning assigned to such terms in the Credit Agreement),
which Credit Agreement provides, among other things, for Loans to be made by the
Lenders to the Borrowers in an aggregate principal amount not exceeding
$150,000,000.
B. The parties hereto desire, among other things, to amend the
definition of Total Liabilities.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
Section 1. Amendment of Credit Agreement. Effective as of the
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date hereof, the definition of "Total Liabilities" in Section 1.01 of
the Credit Agreement shall be deemed amended by inserting the following
sentence at the end of such definition:
"Notwithstanding anything to the contrary in this definition,
accounts payable and accrued expenses arising in the ordinary
course of business shall not be included in the computation of
Indebtedness and other liabilities of the Consolidated
Entities or any Joint Venture in which a Consolidated Entity
owns a direct or indirect Equity Interest."
Section 2. Borrower's Representations. The Borrower hereby
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represents and warrants to the Administrative Agent and the Lenders, as follows:
(a) Each of the representations and warranties of the Borrower
contained or incorporated in the Credit Agreement, as amended by this Agreement
or any of the other Loan Documents, are true and correct in all material
respects on and as of the date hereof (except if any such representation or
warranty is expressly stated to have been made as of a specific date, then as of
such specific date);
(b) As of the date hereof and immediately after giving effect
to this Agreement and the actions contemplated hereby, no Default or Event of
Default has occurred and is continuing; and
(c) The Borrower has all necessary corporate power and
authority to execute, deliver and perform its obligations under this Agreement;
the Borrower has been duly authorized by all necessary corporate action on their
part; and this Agreement has been duly and validly executed and delivered by the
Borrower and constitutes each Borrower's legal, valid and binding obligation,
enforceable in accordance with its respective terms, except as such
enforceability may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium or similar laws of general applicability affecting the enforcement of
creditors' rights and (ii) the application of general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
Section 3. Ratification. Except as modified herein, all of the
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Loan Documents are hereby ratified and confirmed on behalf of the parties hereto
and thereto.
Section 4. Miscellaneous.
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(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(b) Amendments, Etc. The terms of this Agreement may be
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waived, modified and amended only by an instrument in writing duly executed by
the Borrower and the Administrative Agent (with any required consent of the
Lenders pursuant to the Credit Agreement). Any such waiver, modification or
amendment shall be binding upon the Borrower, the Administrative Agent, each
Lender and each holder of any of the Notes.
(c) Successors and Assigns. This Agreement shall be binding
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upon and inure to the benefit of the respective successors and assigns of the
Borrower, the Administrative Agent, the Lenders and any holder of any of the
Notes.
(d) Captions. The captions and section headings appearing
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herein are included solely for convenience of reference and are not intended to
affect the interpretation of any provision of this Agreement.
(e) Counterparts. This Agreement may be executed in any number
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of counterparts, all of which taken together shall constitute one and the same
instrument and either of the parties hereto may execute this Agreement by
signing any such counterpart. Delivery of an executed signature page of this
Agreement by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof.
(f) Severability. If any provision hereof is invalid and
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unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Administrative
Agent and the Lenders in order to carry out the intentions of the parties hereto
as nearly as may be possible and (ii) the invalidity or unenforceability of any
provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
(g) Agent's Authority. The Administrative Agent is hereby
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entering into this Agreement on behalf of, and with the consent of, the Required
Lenders, in accordance with Section 9.02(b) of the Credit Agreement.
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
BORROWER:
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NATIONWIDE HEALTH PROPERTIES, INC.,
a Maryland corporation, as Borrower
By: /s/ XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
Title: Senior Vice President and
Chief Financial Officer
ADMINISTRATIVE AGENT:
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JPMORGAN CHASE BANK, as Administrative Agent
By: /s/ XXXX X. MIX
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Name: Xxxx X. Mix
Title: Vice President
