Exhibit 10.7
AMENDMENT NUMBER TWO TO
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AMENDED AND RESTATED CREDIT AGREEMENT
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This AMENDMENT NUMBER TWO TO AMENDED AND RESTATED CREDIT
AGREEMENT, dated as of May 22, 2001 (this "Amendment"), is entered into among
NATIONWIDE HEALTH PROPERTIES, INC., a Maryland corporation (the "Borrower"), the
Banks, and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as agent for the Banks (in
such capacity, the "Agent").
WHEREAS, Borrower is a party to that certain Amended and
Restated Credit Agreement, dated as of July 27, 1999, as amended by that certain
Amendment Number One to Amended and Restated Credit Agreement, dated as of May
15, 2000 (as amended, restated, supplemented or otherwise modified, the "Credit
Agreement"), with the financial institutions listed on the signature pages
thereto (each, a "Bank", and collectively, the "Banks"), and Agent.
WHEREAS, the Borrower has requested that the Banks consent to
a proposed investment in a joint venture as set forth herein.
WHEREAS, subject to the terms and conditions contained herein,
the Banks signatory hereto are willing to consent to this proposed investment.
NOW, THEREFORE, in consideration of the mutual covenants,
conditions, and provisions hereinafter set forth, the parties hereto agree as
follows:
I. 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.
II. AMENDMENT to CREDIT AGREEMENT
The definition of "Net Real Property Assets" contained in
Section 1.1 of the Credit Agreement hereby is hereby deleted in its entirety.
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III. CONSENT TO THE PROPOSED INVESTMENT
Section 9.4(f) of the Credit Agreement, among other things,
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restricts the ability of Borrower or any of its Subsidiaries to purchase or
otherwise acquire the capital stock, assets, obligations or other securities of
or any interest in any Person, or otherwise extend any credit to or make any
additional investments in any Person. Borrower has requested that Agent and the
Banks consent to a series of investments by the Borrower in a joint venture (the
"Joint Venture") to be formed by Borrower and one or more entities affiliated
with X.X.
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Xxxxxx Company, Inc., and to be managed solely by the Borrower, in an aggregate
amount not to exceed $16,250,000, which funds shall be used by the Joint Venture
solely to acquire Healthcare Properties or to invest in mortgage loans (other
than construction loans) on Healthcare Properties (the "Designated Investment").
The provisions of Section 9.4(f) of the Credit Agreement
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notwithstanding, Agent and the Banks consent to the transactions contemplated by
the Designated Investment and waive any Default or Event of Default that may
have otherwise been occasioned solely by the consummation of the Designated
Investment.
Borrower hereby represents and warrants that the execution,
delivery, and performance of this Amendment are within its corporate powers,
have been duly authorized by all necessary corporate action, and are not in
contravention of any law, rule, or regulation, or any order, judgment, decree,
writ, injunction, or award of any arbitrator, court, or governmental authority,
or of the terms of its charter or bylaws, or of any contract or undertaking to
which it is a party or by which any of its properties may be bound or affected.
The waivers and consents contained in this Section III are
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limited to the specifics hereof and the terms and conditions described above,
shall not apply with respect to any facts or occurrences other than those on
which the same are based, shall not excuse future non-compliance with the Credit
Agreement, and, except as expressly set forth herein, shall not operate as a
waiver or an amendment of any right, power or remedy of the Agent or the Banks,
nor as a consent to any further or other matter, under the Loan Documents.
IV. COVENANTS
Borrower covenants and agrees with Agent and the Banks as
follows:
A. On or before a date which is thirty (30) days after
the formation of the Joint Venture, Borrower will
provide Agent with such information as Agent shall
require in its sole discretion concerning the
identity and ownership of the Joint Venture; and
B. Borrower shall not fail, as of any date of
determination, to be the sole manager of the Joint
Venture, without Agent's prior written consent.
The failure of Borrower to comply with the covenants set forth
in this Section IV shall constitute an Event of Default under the Credit
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Agreement.
V. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS AMENDMENT
The satisfaction of each of the following shall constitute
conditions precedent to the effectiveness of this Amendment and each and every
provision hereof:
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A. The representations and warranties in the Credit
Agreement and the other Loan Documents shall be true
and correct in all respects on and as of the date
hereof, as though made on such date (except to the
extent that such representations and warranties
relate solely to an earlier date);
B. No Default or Event of Default shall have occurred
and be continuing on the date hereof or as of the
date of the effectiveness of this Amendment; and
C. No injunction, writ, restraining order, or other
order of any nature prohibiting, directly or
indirectly, the consummation of the transactions
contemplated herein shall have been issued and
remain in force by any Governmental Authority
against the Borrower, Agent or the Banks.
VI. MISCELLANEOUS
A. Loan Documents. This Amendment shall be one of
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the Loan Documents.
B. Execution. This Amendment may be executed in any
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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
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.
C. Effectiveness. This Amendment shall be effective
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only after one or more counterparts hereof shall have been
executed by the Borrower, all the Banks, and the Agent, and
shall have been delivered to the Agent, and subject to the
satisfaction of the conditions precedent set forth in
Section V herein.
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D. No Other Amendment. Except as expressly amended
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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.
E. Governing Law. This Amendment shall be governed by,
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and construed and enforced in accordance with, the laws of the
State of California.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and delivered as of the date first above written.
NATIONWIDE HEALTH PROPERTIES, INC.
By: ____________________________
Title: ______________________
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
in its individual capacity and as Agent
By: ____________________________
Title: ______________________
BANK OF AMERICA, N.A., formerly known as
NationsBank, N.A.
By: ____________________________
Title: _____________________
THE BANK OF NEW YORK
By: ____________________________
Title: ______________________
KBC BANK N.V.
By: ____________________________
Title: _____________________
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CITY NATIONAL BANK
By: ____________________________
Title: _____________________
By: ____________________________
Title: _____________________
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