1
EXHIBIT 10.10
AMENDMENT NO. 1 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (this "Amendment Agreement") is
made and entered into as of this 5th day of April, 1999, by and among HEALTH
CARE REIT, INC., a Delaware corporation having its chief executive office in
Toledo, Ohio ("HCN") and the following Subsidiaries of HCN: PENNSYLVANIA BCC
PROPERTIES, INC., HCN BCC HOLDINGS, INC., AND HCRI TEXAS PROPERTIES, LTD. (such
Subsidiaries and HCN collectively referred to as the "Borrowers" and
individually as a 'Borrower"), BANK UNITED, a federal savings bank organized and
existing under the laws of the United States of America ("Bank United"), in its
capacity as agent for the Lenders (as defined below) (in such capacity, the
"Agent"), and each of the Lenders executing and delivering a signature page
hereto.
W I T N E S S E T H:
WHEREAS, the Borrowers, the Agent and the lenders from time to time party
thereto (the "Lenders") have entered into that certain Credit Agreement dated as
of February 24, 1999, (as hereby amended, and as from time to time further
amended, modified, supplemented or restated, the "Agreement"), pursuant to which
the Lenders have made available to the Borrowers a Revolving Credit Facility;
and
WHEREAS, the Borrower has requested that the Agreement be amended to allow
for LIBOR Rate Loans having Interest Periods of two, three or six months in
addition to the one month Interest Periods currently permitted; and
WHEREAS, subject to the terms and conditions herein stated, the Agent and
the Lenders are willing to allow such additional Interest Period options be made
available to the Borrowers under the Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and the
fulfillment of the conditions set forth herein, and intending to be legally
bound, the parties hereto do hereby agree as follows:
1. Definitions. Capitalized terms used herein without definition shall have
the meaning set forth in the Agreement.
2. Amendments to Credit Agreement. Subject to the terms and conditions set
forth herein, the Credit Agreement is hereby amended as follows:
(a) The definition of "Interest Period" in Section 1. 1 of the
Agreement is amended in its entirety so that as amended it shall read as
follows:
"Interest Period" means, for each LIBOR Rate Loan, a period
commencing on the date such LIBOR Rate Loan is made or Converted or
Continued and ending, at the Borrowers' option, on the date one, two,
three or six
2
months thereafter as notified to the Agent by the Authorized
Representative in accordance with the terms hereof; provided that,
(i) if an Interest Period for a LIBOR Rate Loan would end on
a day which is not a Business Day, such Interest Period shall be
extended to the next Business Day (unless such extension would
cause the applicable Interest Period to end in the succeeding
calendar month, in which case such Interest Period shall end on
the next preceding Business Day); and
(ii) any Interest Period which begins on the last Business
Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of a
calendar month."
(b) The definition of "LIBOR Base Rate" in Section 1.1 of the
Agreement is amended in its entirety so that as amended it shall read as
follows:
"LIBOR Base Rate" means, with respect to any LIBOR Rate Loan, for
any Interest Period applicable thereto, the rate per annum (rounded
upwards, if necessary, to the nearest 1/16 of one percent) quoted by
the Reference Bank at approximately 11:00 a.m. London time (or as soon
thereafter as practicable) two (2) LIBOR Business Days prior to the
first day of such Interest Period as the rate at which the Reference
Bank is offered Dollar deposits in the London interbank market where
the LIBOR and foreign currency and exchange operations of the
Reference Bank are customarily conducted, having a term comparable to
such Interest Period and in an amount comparable to the principal
amount of the LIBOR Rate Loan to be made by the Lenders to which such
Interest Period relates."
(c) The second sentence of Section 3.2 of the Agreement is amended in
its entirety so that as amended it shall read as follows: "Each such notice
shall be effective upon receipt by the Agent, shall specify the amount of
the LIBOR Rate Loan affected and the duration of the Interest Period to be
applicable thereto."
(d) The second sentence of Section 3.3, of the Agreement is amended in
its entirety so that as amended it shall read as follows: "Interest on each
Loan shall be paid on the earlier of (a) in the case of any Prime Rate
Loan, monthly in arrears of the last Business Day of each month, commencing
on March 31, 1999, until the Revolving Credit Termination Date, at which
date as applicable the entire principal amount of and all accrued interest
on the Loans shall be paid in full, (b) in the case of any LIBOR Rate Loan,
on last day of the applicable Interest Period for such LIBOR Rate Loan and
if such Interest Period extends for more than three (3) months, at
intervals of three (3) months after the first day of such Interest Period,
and (c) upon payment in full of the related Loan; provided, however, that
if any Event of Default shall occur and be continuing, all
2
3
amounts outstanding hereunder shall bear interest thereafter until paid in
full at the Default Rate."
(e) Exhibit D in the form attached to the Agreement is hereby deleted
and the form of Exhibit D attached hereto is substituted in lieu thereof.
(f) Exhibit E in the form attached to the Agreement is hereby deleted
and the form of Exhibit E attached hereto is substituted in lieu thereof.
3. Representations and Warranties. In order to induce the Agent and the
Lenders to enter into this Agreement, the Borrowers jointly and severally
represent and warrant to the Agent and the Lenders as follows:
(a) The representations and warranties made in Article VII of the
Credit Agreement are true and correct in all material respects on and as of
the date hereof, except to the extent that such representations and
warranties expressly relate to an earlier date and except that if any
financial statements have been delivered by the Borrowers to the Agent and
the Lenders pursuant to Section 8.1 of the Credit Agreement, the financial
statements referred to in Section 7.11(a) of the Credit Agreement shall be
deemed to be those financial statements most recently delivered to the
Agent and the Lenders pursuant to Section 8.1 of the Credit Agreement;
(b) There has been no material adverse change in the condition,
financial or otherwise, of HCN and its Subsidiaries, taken as a whole,
since the date of the most recent financial reports received by the Agent
and the Lenders under Section 7.11(a) or Section 8.1(a) of the Credit
Agreement, as applicable, other than changes in the ordinary course of
business;
(c) The business and properties of HCN and its Subsidiaries, taken as
a whole, are not, and since the date of the most recent financial reports
received by the Agent and the Lenders under Section 7.11(a) or Section
8.1(a) of the Credit Agreement as applicable, have not been, adversely
affected in any substantial way as the result of any fire, explosion,
earthquake, accident, strike, lockout, combination of workers, flood,
embargo, riot, activities of armed forces, war or acts of God or the public
enemy, or cancellation or loss of any major contracts; and
(d) No event has occurred and is continuing which constitutes, and no
condition exists which upon the consummation of the transaction
contemplated hereby would constitute, a Default or an Event of Default on
the part of any Borrower under the Credit Agreement.
4. Conditions To Effectiveness. The effectiveness of this Amendment
Agreement is subject to the conditions that the Agent shall have received four
(4) counterparts of this Amendment Agreement duly executed by each Borrower and
each Lender.
3
4
5. Expenses. In accordance with Section 12.5 of the Agreement, the
Borrowers agree to pay all out-of-pocket expenses incurred by the Agent
(including, without limitation, reasonable attorneys' fees and disbursements) in
connection with the negotiation, preparation, execution and delivery of this
Amendment Agreement.
6. Entire Agreement. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, conditions, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as in this Amendment Agreement otherwise expressly stated, no representations,
warranties or commitments, express or implied, have been made by any other party
to the other with respect to the subject matter of this Amendment Agreement.
None of the terms or conditions of this Amendment Agreement may be changed,
modified, waived or canceled orally or otherwise, except as provided in the
Agreement.
7. Full Force and Effect of Agreement. Except as hereby specifically
amended, modified or supplemented, the Agreement and all of the other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
8. Governing Law. This Amendment Agreement shall in all respects be
governed by, and construed in accordance with, the laws of the State of Texas.
9. Enforceability. Should any one or more of the provisions of this
Amendment Agreement be determined to be illegal or unenforceable as to one or
more of the parties hereto, all other provisions nevertheless shall remain
effective and binding on the parties hereto.
10. Counterparts. This Amendment Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument.
11. Credit Agreement. All references in any of the Loan Documents to the
Agreement, or any other term defined to be the Agreement, shall mean the
Agreement as amended hereby.
12. Successors and Assigns. This Amendment Agreement shall be binding upon
and inure to the benefit of each of the Borrowers, each of the Lenders and the
Agent and their respective successors, assigns and legal representatives;
provided, however, that no Borrower, without the prior consent of the Agent and
each of the Lenders, may assign any rights, powers, duties or obligations
hereunder.
4
5
IN WITNESS HEREOF, each of the undersigned have duly executed this
instrument by their respective duly authorized officers as of the day and year
first above written.
BORROWERS:
HEALTH CARE REIT, INC.
WITNESS:
By: ___________________________________
Name: _________________________________
Title: ________________________________
PENNSYLVANIA BCC PROPERTIES, INC.
WITNESS:
By: ___________________________________
Name: _________________________________
Title: ________________________________
HCN BCC HOLDINGS, INC. WITNESS:
WITNESS:
By: ___________________________________
Name: _________________________________
Title: ________________________________
HCRI TEXAS PROPERTIES, LTD., a limited
partnership, by its general partner:
HEALTH CARE REIT, INC.
WITNESS:
By: ___________________________________
Name: _________________________________
Title: ________________________________
BANK UNITED, as Agent for the Lenders
WITNESS:
By: ___________________________________
Name: _________________________________
Title: ________________________________
5
6
BANK UNITED, as. Lender
WITNESS:
By: ___________________________________
Name: _________________________________
Title: ________________________________
6
7
EXHIBIT D
Form of Borrowing Notice
To: Bank United
0000 Xxxxxxxxx Xxxxxxx, Xxx. 0000
Xxxxxxx XX 00000-0000
Attention: Mr. Will Xxxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 0000000
Reference is made to the Credit Agreement dated as of February 24, 1999 (as
the same may be amended, supplemented or restated from time to time, the "Credit
Agreement") among Health Care REIT, Inc., a Delaware corporation ("HCN"), and
certain Subsidiaries of HCN designated as Borrowers therein (HCN and such
Subsidiaries being collectively referred to as the "Borrowers") the Lenders (as
defined in the Agreement) and Bank United, as Agent for the Lenders ("Agent").
Terms defined in the Credit Agreement are used herein with the same meaning.
The Borrowers, through their undersigned Authorized Representative, hereby
give notice to the Agent that Loans of the type and amount set forth below be
made on the date indicated:
Type of Loan Interest Aggregate
(check one) Period(1) Amount(2) Date of Loan(3)
------------ --------- --------- ---------------
Revolving Loan
Prime Rate Loan N/A _________ _______________
LIBOR Rate Loan ________ _________ _______________
----------
(1) For any LIBOR Rate Loan, one, two, three or six months.
(2) Must be $3,000,000 or if greater an integral multiple of $500,000.
(3) At least three (3) LIBOR Business Days later if a LIBOR Rate Loan.
The Borrowers hereby request that the proceeds of Loans described in this
Borrowing Notice be made available as follows:
Name of recipient (must be a Borrower): _______________________________________
Transmittal Instructions: _____________________________________________________
-----------------------------------------------------------------------------
The undersigned hereby certifies that:
1. No Default or Event of Default exists either now or after giving effect
to the borrowing described herein;
7
8
2. All the representations and warranties set forth in Article VII of the
Agreement and in the Loan Documents (other dm those expressly stated to refer to
a particular date) are true and correct as of the date hereof except that the
reference to the financial statements in Section 7.11(a) of the Agreement are to
those financial statements most recently delivered to you pursuant to Section
8.1 of the Agreement (it being understood that any financial statements
delivered pursuant to Section 8.1(b) have not been certified by independent
public accountants); and
3. A true and correct Borrowing Base Certificate dated as of the date
hereof has been executed by the Borrowers and delivered to the Agent; and
4. All conditions contained in the Agreement to the making of any Loan
requested hereby have been met or satisfied in full.
HEALTH CARE REIT, INC.
PENNSYLVANIA BCC PROPERTIES, INC.
HCN BCC HOLDINGS, INC.
HCRI TEXAS PROPERTIES, LTD.
[OTHER BORROWERS]
BY: ____________________________________
Authorized Representative
8
9
EXHIBIT E
Form of Interest Rate Selection Notice
To: Bank United
0000 Xxxxxxxxx Xxxxxxx, Xxx. 0000
Xxxxxxx XX 00000-0000
Attention: Mr. Will Xxxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Reference is made to the Credit Agreement dated as of February 24, 1999 (as
the same may be amended, supplemented or restated from time to time, the "Credit
Agreement") among Health Care REIT, Inc., a Delaware corporation ("HCN"), and
certain Subsidiaries of HCN designated as Borrowers therein (HCN and such
Subsidiaries being collectively referred to as the "Borrowers") the Lenders (as
defined in the Agreement) and Bank United, as Agent for the Lenders ("Agent").
Terms defined in the Credit Agreement are used herein with the same meaning.
The Borrowers, through their Authorized Representative, hereby give notice
to the Agent of the following selection of a type of Loan and Interest Period:
Type of Loan Interest Aggregate
(check one) Period(1) Amount(2) Date of Loan(3)
-------------- --------- --------- ---------------
Revolving Loan
Prime Rate Loan N/A _________ _______________
LIBOR Rate Loan _________ _________ _______________
-------------
(1) For any LIBOR Rate Loan, one, two, three or six months.
(2) Must be $3,000,000 or if greater an integral multiple of $500,000.
(3) At least three (3) LIBOR Business Days later if a LIBOR Rate Loan.
HEALTH CARE REIT, INC.
PENNSYLVANIA BCC PROPERTIES, MC.
HCN BCC HOLDINGS, INC.
HCRI TEXAS PROPERTIES, LTD.
[OTHER BORROWERS]
BY: ____________________________________
Authorized Representative
DATE: __________________________________
9
