EXHIBIT 10.1
AMENDMENT NUMBER SIX AND WAIVER TO CREDIT AGREEMENT
---------------------------------------------------
This AMENDMENT NUMBER SIX AND WAIVER TO CREDIT AGREEMENT, dated as of
August 15, 1997 (this "Amendment"), is entered into among NATIONWIDE HEALTH
PROPERTIES, INC., a Maryland corporation (the "Borrower"), the financial
institutions which are signatories to the Credit Agreement (each a "Bank" and,
collectively, the "Banks"), and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as agent
for the Banks thereunder (in such capacity, the "Agent").
WHEREAS, the Borrower has requested that the Banks amend certain
provisions of the Credit Agreement to provide for, among other things, the
revision of covenants in connection with the incurrence of indebtedness by the
Borrower.
WHEREAS, Borrower has informed Banks and Agent that Borrower intends
to enter into a transaction pursuant to which Borrower will acquire five (5)
facilities: a continuing care retirement community in Glendale, Wisconsin, a
continuing care retirement community in Waukesha, Wisconsin, an independent
living facility/assisted living facility in Menomonee Falls, Wisconsin, an
independent living facility in West Allis, Wisconsin, and a nursing home in
Duluth, Minnesota (the "Properties"), and lease the Properties to Laureate
Group, Inc. ("Laureate"), all as more particularly described in a memorandum
(the "Memorandum") from Xxxx Xxxxxx to Borrower's Board of Directors, dated June
12, 1997, a true and complete copy of which is attached hereto as Exhibit "A"
-----------
(the transaction substantially as described in the Memorandum is referred to
herein as the "Transaction");
WHEREAS, Borrower has requested that Banks and Agent waive Borrower's
compliance with certain covenants set forth in Section 9.4 of the Credit
-----------
Agreement in connection with the consummation of the Transaction; and
WHEREAS, subject to the terms and conditions contained herein, the
Banks are willing to amend such provisions of the Credit Agreement and to waive
Borrower's compliance with certain covenants set forth in Section 9.4 of the
-----------
Credit Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, conditions,
and provisions hereinafter set forth, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS FOR THIS AMENDMENT;
------------------------------
AMENDMENT OF ARTICLE I OF THE CREDIT AGREEMENT
----------------------------------------------
1.1 Definitions for this Amendment. Any and all initially
------------------------------
capitalized terms used herein shall have the meanings ascribed thereto in the
Credit Agreement unless specifically defined herein. For purposes of this
Amendment, the following initially capitalized terms shall have the following
meanings:
"Agent" shall have the meaning set forth in the introduction to this
-----
Amendment.
"Amendment" means this Amendment Number Six and Waiver to Credit
---------
Agreement among the Borrower, the Banks, and the Agent.
"Bank" and "Banks" shall have the respective meanings set forth in the
---- -----
introduction to this Amendment.
"Borrower" shall have the meaning set forth in the introduction to
--------
this Amendment.
"Credit Agreement" means that certain Credit Agreement, dated as of
----------------
May 20, 1993, among the Borrower, the Banks, and the Agent, as amended by
that certain Amendment Number One to Credit Agreement dated as of April 28,
1994, that certain Amendment Number Two to Credit Agreement dated as of
July 11, 1995, that certain Amendment Number Three to Credit Agreement
dated as of January 22, 1996, that certain Amendment Number Four and Waiver
to Credit Agreement dated as of December 10, 1996, and that certain
Amendment Number Five to Credit Agreement dated as of April 1, 1997.
1.2 Amendment of Section 1.1 of the Credit Agreement. Section 1.1 of
------------------------------------------------
the Credit Agreement is hereby amended by inserting the following defined terms:
"1997 Indenture" means that certain Indenture, dated as of August 19,
--------------
1997, from the Borrower to The Bank of New York, as Trustee, providing for
the issuance from time to time of unsecured and unsubordinated debentures,
notes or other evidences of indebtedness of the Borrower.
"1997 Indenture Indebtedness" means Indebtedness of the Borrower
---------------------------
incurred under or pursuant to the 1997 Indenture.
ARTICLE 2
AMENDMENT OF CERTAIN PROVISIONS
-------------------------------
OF THE CREDIT AGREEMENT
-----------------------
2.1 Amendment of Section 4.3(b) of the Credit Agreement. Section
---------------------------------------------------
4.3(b) of the Credit Agreement is amended by deleting clause (i) therefrom in
its entirety and substituting therefor the following clause:
(i) If the Borrower shall create or incur Indenture Indebtedness, 1996
Indenture Indebtedness or 1997 Indenture Indebtedness or, with the prior
written consent of the Majority Banks, shall create, incur or assume
Indebtedness pursuant to Sections 9.4(a)(v) or 9.4(a)(vii), the Borrower
---------------------------------
shall pay to the Agent as a prepayment in whole or ratably in part of the
outstanding amount of the Loans, an amount equal to the Net Cash
Proceeds received by the Borrower from such Indebtedness as created,
incurred or assumed (to the extent of the amount of the Loans then
outstanding).
2.2 Amendment of Section 8.1 of the Credit Agreement. Section 8.1 of
------------------------------------------------
the Credit Agreement is amended by inserting the following new subsection (u)
immediately
-2-
following subsection (t) thereof:
(u) Compliance with Securities Laws. Each of the Borrower and its
-------------------------------
Subsidiaries is in compliance in all material respects with all applicable
federal and state securities laws, rules, regulations and orders of any
Governmental Authority with respect to the 0000 Xxxxxxxxx and the
Indebtedness issued and to be issued pursuant to the 1997 Indenture.
2.3 Amendment of Section 9.1(b) of the Credit Agreement. Section
---------------------------------------------------
9.1(b) of the Credit Agreement is amended by deleting clause (xi) therefrom in
its entirety and substituting therefor the following clause:
(xi) as soon as reasonably practical and, in any event, not less
than two days prior to the consummation thereof, written notice of (A) the
proposed incurrence or issuance of Indenture Indebtedness, 1996 Indenture
Indebtedness or 1997 Indenture Indebtedness or (B) any proposed supplement
or amendment to the Indenture, the 1996 Indenture or the 0000 Xxxxxxxxx;
and
2.4 Amendment of Section 9.2 of the Credit Agreement. Section 9.2 of
------------------------------------------------
the Credit Agreement is amended by deleting subsection (a) therefrom in its
entirety and substituting therefor the following subsection:
(a) Leverage Ratio. The Borrower will not permit the ratio of
--------------
Consolidated Total Liabilities to Consolidated Tangible Net Worth to be
greater than 1.3 to 1.0;
2.5 Amendment of Section 9.4(a) of the Credit Agreement. Section
---------------------------------------------------
9.4(a) of the Credit Agreement is amended by deleting the "." at the end of
clause (xi) thereof and inserting in place thereof "; and" and by inserting
immediately thereafter the following new clause (xii):
(xii) 1997 Indenture Indebtedness; provided, however, that: (a)
-------- -------
the maximum aggregate principal amount of 1997 Indenture Indebtedness at
any time outstanding shall not exceed $300,000,000; (b) without the prior
written consent of the Majority Banks, no regularly scheduled principal
payment on any 1997 Indenture Indebtedness shall be required prior to the
fifth (5th) anniversary of the issuance of the debenture, note or other
evidence of indebtedness evidencing such 1997 Indenture Indebtedness
(without regard to the effect of the acceleration provisions set forth in
Section 502 of the 1997 Indenture); (c) all 1997 Indenture Indebtedness
shall be unsecured; (d) in connection with the incurrence or issuance of
any 1997 Indenture Indebtedness, no covenant (financial or otherwise) shall
be imposed upon, or agreed to by, the Borrower that is more restrictive (in
the judgment of the Majority Banks) than the covenants set forth in this
Agreement; and (e) prior to the effectiveness thereof, the Majority Banks
shall have approved, in their sole discretion, each supplement or amendment
to the 1997 Indenture.
-3-
ARTICLE 3
WAIVERS OF CERTAIN PROVISIONS
-----------------------------
OF THE CREDIT AGREEMENT
-----------------------
3.1 Waiver of Section 9.4(a)(ix) of the Credit Agreement. Banks
----------------------------------------------------
hereby agree to waive compliance by Borrower and its Subsidiaries with
subsection (a)(ix) of Section 9.4 of the Credit Agreement in connection with the
consummation of the Transaction to the extent the Transaction includes the
assumption of Indebtedness in an amount not to exceed $53,004,800 which is
secured by Liens upon the Properties.
3.2 Waiver of Section 9.4(b) of the Credit Agreement. Banks hereby
------------------------------------------------
agree to waive compliance by Borrower and its Subsidiaries with Section 9.4(b)
of the Credit Agreement in connection with the consummation of the Transaction
to the extent the Transaction includes the assumption of Liens upon the
Properties securing Indebtedness in an amount not to exceed $53,004,800.
3.3 Waiver of Section 9.4(d) of the Credit Agreement. Banks hereby
------------------------------------------------
agree to waive compliance by Borrower and its Subsidiaries with Section 9.4(d)
of the Credit Agreement in connection with the consummation of the Transaction
to the extent the Transaction constitutes a merger with, or an acquisition of
all or substantially all of the assets of, any Person.
3.4 Waiver of Section 9.4(f)(iii)(A) of the Credit Agreement. Banks
--------------------------------------------------------
hereby agree to waive compliance by Borrower and its Subsidiaries with
subsection (f)(iii)(A) of Section 9.4 of the Credit Agreement in connection with
the consummation of the Transaction to the extent the Transaction includes the
purchase of the Properties for a consideration which exceeds $30,000,000;
provided, however, that such purchase consideration shall not exceed $96,000,000
-------- -------
(including assumption of Indebtedness but exclusive of Borrower's transaction
expenses).
3.5 Waiver of Section 9.4(f)(iii)(B) of the Credit Agreement. Banks
--------------------------------------------------------
hereby agree that, for purposes of the computation from time to time of
compliance by Borrower and its Subsidiaries with subsection (f)(iii)(B) of
Section 9.4 of the Credit Agreement during the current fiscal year only, the
purchase consideration payable in connection with the consummation of the
Transaction shall be excluded from the $200,000,000 limitation set forth in such
subsection; provided, however, that such purchase consideration shall not exceed
-------- -------
$96,000,000 (including assumption of Indebtedness but exclusive of Borrower's
transaction expenses).
ARTICLE 4
MISCELLANEOUS
-------------
4.1 Loan Documents. This Amendment shall be one of the Loan
--------------
Documents.
4.2 Execution. This Amendment may be executed in any number of
---------
counterparts, each of which when so executed and delivered shall be deemed an
original. All of such counterparts shall constitute but one and the same
instrument. Delivery of an executed counterpart of the signature pages of this
Amendment by telecopier shall be equally effective as
-4-
delivery of a manually executed counterpart. Any party delivering an executed
counterpart of the signature pages of this Amendment by telecopier shall
thereafter also promptly deliver a manually executed counterpart, but the
failure to deliver such manually executed counterpart shall not affect the
validity, enforceability, and binding effect of this Amendment.
4.3 Effectiveness. This Amendment shall be effective as of the date
-------------
first written above, when (a) one or more counterparts hereof shall have been
executed by the Borrower, the Banks, and the Agent and shall have been delivered
to the Agent and (b) the Borrower shall have delivered to the Banks and the
Agent an executed copy of the 1997 Indenture.
4.4 No Other Amendment. Except as expressly amended hereby, the
------------------
Credit Agreement shall remain unchanged and in full force and effect. To the
extent any terms or provisions of this Amendment conflict with those of the
Credit Agreement, the terms and provisions of this Amendment shall control.
This Amendment shall be deemed a part of and is hereby incorporated in the
Credit Agreement.
4.5 Governing Law. This Amendment shall be governed by, and
-------------
construed and enforced in accordance with, the laws of the State of California.
[SIGNATURE PAGE FOLLOWS]
-5-
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed and
delivered as of the date first above written.
XXXXX FARGO BANK, NATIONAL SANWA BANK CALIFORNIA
ASSOCIATION, in its individual
capacity and as Agent
By By
---------------------------- ----------------------------------
Title: Vice President Title:
----------------------------
THE SUMITOMO BANK, LIMITED BHF-BANK AKTIENGESELLSCHAFT
By By
---------------------------- ----------------------------------
Title: Title:
---------------------- ----------------------------
By By
---------------------------- ----------------------------------
Title: Title:
---------------------- ----------------------------
THE BANK OF NEW YORK
By
----------------------------
Title:
-----------------------
NATIONWIDE HEALTH PROPERTIES, INC.
By
-----------------------------
Title:
------------------------
