Exhibit 10.1
AMENDMENT NO. 1
THIS AMENDMENT NO. 1 dated as of June 10, 2003 (this "Amendment") to the
Credit Agreement referenced below is by and among VENTAS REALTY, LIMITED
PARTNERSHIP, a Delaware limited partnership (the "Borrower"), VENTAS, INC., a
Delaware corporation ("Ventas") and certain subsidiaries of Ventas identified
herein (together with Ventas, the "Guarantors") and BANK OF AMERICA, N.A., as
Administrative Agent for the Lenders. Capitalized terms used but not otherwise
defined herein shall have the meanings provided in the Credit Agreement.
W I T N E S S E T H
WHEREAS, a $350 million revolving credit and term loan facility has been
established in favor of the Borrower pursuant to the terms of that Second
Amended and Restated Credit, Security and Guaranty Agreement dated as of April
17, 2002 (as amended and modified, the "Credit Agreement") among the Borrower,
the Guarantors, the Lenders and the Administrative Agent;
WHEREAS, the Borrower has requested certain modifications to the terms of
the Credit Agreement; and
WHEREAS, the requisite Lenders have agreed to the requested modifications
on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
SECTION 1 Amendments to the Credit Agreement. The Credit Agreement is
hereby amended in the following respects:
1.1 Section 1.1 - Definitions. The definition of "Consolidated Adjusted
Net Worth" in Section 1.1 is amended to read as follows:
"Consolidated Adjusted Net Worth" shall mean, as of any date, for
Ventas and its Consolidated Subsidiaries on a consolidated basis, the sum
of (i) consolidated shareholders' equity or net worth as of such day as
determined in accordance with GAAP plus (ii) accumulated depreciation
determined in accordance with GAAP, but excluding, for purposes hereof, the
unrealized gain or loss on interest rate xxxxxx or other interest rate
derivatives reported on the Ventas Consolidated Balance Sheet as
accumulated other comprehensive income (loss).
1.2 Section 3.30 - Reportable Transactions. A new Section 3.30 is added to
read as follows:
Section 3.30 Reportable Transactions.
The Credit Parties do not intend to treat any of the Loans, the
Letters of Credit or any related transaction as a "reportable transaction"
(within the meaning of Treasury Regulation Section 1.6011-4). In the event
a Credit Party determines that it will take any action inconsistent with
such intention, it will promptly notify the Administrative Agent thereof.
If a Credit Party so notifies the Administrative Agent, any Lender may
treat its Loans (and its Participation Interests in Letters of Credit and
Swingline Loans) as subject to Treasury Regulation Section 301.6112-1, and
such Lender will maintain any lists and other records required thereby.
1.3 Section 5.1 - Reports. Subsection (o) of Section 5.1 is relettered as
subsection (p), and a new subsection (o) is added to read as follows:
(o) Promptly after any Credit Party has notified the Administrative
Agent of its intention to treat any of the Loans, the Letters of Credit or
any related transaction as a "reportable transaction" (within the meaning
of Treasury Regulation Section 1.6011-4), a duly completed copy of IRS Form
8886 or any successor form thereto; and
1.4 Section 12.17 - Confidentiality. A new sentence is added at the end of
Section 12.17 to read as follows:
Notwithstanding anything herein to the contrary, the Administrative Agent
and each Lender may disclose to any and all Persons, without limitation of
any kind (other than limitations provided by Applicable Law), any
information with respect to the "tax treatment" and "tax structure" (in
each case, within the meaning of Treasury Regulation Section 1.6011-4) of
the transactions contemplated hereby and all materials of any kind
(including opinions or other tax analyses) that are provided to the
Administrative Agent or any Lender relating to such tax treatment and tax
structure; provided that with respect to any document or similar item that
contains information concerning the tax treatment or tax structure of the
transaction as well as other confidential information, this sentence shall
only apply to such portions of the document or similar item that relate to
the tax treatment or tax structure of the Loans, the Letters of Credit and
the transactions contemplated hereby.
SECTION 2 Conditions Precedent.
2.1 This Amendment shall be effective immediately upon receipt by the
Administrative Agent, in form and substance satisfactory to the Administrative
Agent, of each of the following:
(a) Counterparts of this Amendment duly executed by each of the Credit
Parties and, at the direction of the Required Lenders, the Administrative
Agent; and
(b) Consents to this Amendment duly executed by the Required Lenders
directing the Administrative Agent to enter this Amendment on their behalf.
SECTION 3 Miscellaneous.
3.1 The Credit Parties hereby affirm that, after giving effect to this
Amendment, the representations and warranties set forth in the Credit Agreement
and the other Credit Documents are true and correct in all material respects as
of the date hereof (except those which expressly relate to an earlier period).
3.2 Except as modified hereby, all of the terms and provisions of the
Credit Agreement and the other Credit Documents (including schedules and
exhibits thereto) shall remain in full force and effect.
3.3 The Borrower agrees to pay all reasonable costs and expenses of the
Administrative Agent in connection with the preparation, execution and delivery
of this Amendment, including the reasonable fees and expenses of Xxxxx & Xxx
Xxxxx, PLLC.
3.4 This Amendment may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original, and it shall
not be necessary in making proof of this Amendment to produce or account for
more than one such counterpart. Delivery by any party hereto of an executed
counterpart of this Amendment by facsimile shall be effective as such party's
original
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executed counterpart and shall constitute a representation that such party's
original executed counterpart will be delivered promptly.
3.5 This Amendment shall be deemed to be a contract made under, and for
all purposes shall be construed in accordance with, the laws of the State of New
York.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Amendment to be duly executed and delivered as of the date first above
written.
BORROWER: VENTAS REALTY, LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Ventas, Inc., its General Partner
By: /s/ T. Xxxxxxx Xxxxx
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Name: T. Xxxxxxx Xxxxx
Title: Executive Vice President and
General Counsel
GUARANTORS: VENTAS, INC., a Delaware corporation
By: /s/ T. Xxxxxxx Xxxxx
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Name: T. Xxxxxxx Xxxxx
Title: Executive Vice President and
General Counsel
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A., as Administrative Agent,
at the direction and on behalf of the Lenders
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Principal
