FIFTH AMENDMENT TO CREDIT AND SECURITY AGREEMENT
Exhibit
10.1
FIFTH
AMENDMENT TO CREDIT AND SECURITY AGREEMENT
THIS
FIFTH AMENDMENT TO CREDIT AND
SECURITY AGREEMENT (this “Amendment”) dated as of June 18, 2007 by and among
FIVE STAR QUALITY CARE, INC. (the “Borrower”), each of the parties identified as
“Guarantor” on the signature pages hereto (each a “Guarantor”), and WACHOVIA
BANK, NATIONAL ASSOCIATION, as Lender (the “Lender”).
WHEREAS,
the Borrower and the Lender
have entered into that certain Credit and Security Agreement dated as of
May 9, 2005 (as amended and in effect immediately prior to the date
hereof, the “Credit Agreement”); and
WHEREAS,
the Borrower and the Lender
desire to amend certain provisions of the Credit Agreement on the terms and
conditions contained herein.
NOW,
THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged
by
the parties hereto, the parties hereto hereby agree as follows:
Section 1. Specific
Amendments to Credit Agreement. The parties hereto agree that the
Credit Agreement is amended as follows:
(a) The
Credit Agreement is amended by restating in full the definition of “Termination
Date” contained Section 1.1 as follows:
“Termination Date” means May 8, 2009.
(b) The Credit
Agreement is further amended by amending and restating Section 2.15 in its
entirety as follows:
Section 2.15.
Increase of Commitment.
The
Borrower may request that the
Lender increase the amount of the Commitment to an amount not to exceed
$80,000,000 by delivering a written request to the Lender at least 60 days
but
not more than 30 days prior to the proposed effective date of such increase.
If
the Lender has not notified the Borrower regarding such requested increase
by
the date 15 days prior to the proposed effective date of the increase, then
the
Lender shall be deemed to have denied the requested increase. The
Borrower understands that this Section has been included in this Agreement
for
its convenience in requesting an increase of the amount of the Commitment and
the Borrower acknowledges that the Lender (a) has not promised (either
expressly or impliedly), and has no obligation or commitment whatsoever, to
agree to any such increase and (ii) may impose such
conditions
to any such increase as the Lender deems appropriate in its sole and absolute
discretion.
(c) The
Credit Agreement is amended by deleting Exhibit D thereto and substituting
in
its place Exhibit D attached hereto.
(d) The
“Commitment Amount” appearing on the Lender’s signature page to the Credit
Agreement is deleted and replaced by the “Commitment Amount” appearing on the
Lender’s signature page to this Amendment.
Section
2. Specific Amendment to Fee Letter. The parties
hereto agree that the second full paragraph of the second page of the Fee Letter
is amended and restated as follows:
The
term “Applicable Margin” means
1.25% with respect to LIBOR Loans and 0.25% with respect to Base Rate
Loans.
Section
3. Conditions
Precedent. The effectiveness of this Amendment is subject to
receipt by the Lender of each of the following, each in form and substance
satisfactory to the Lender:
(a) A
counterpart of this Amendment duly executed by the Borrower and each
Guarantor;
(b) Borrower
shall have paid the Fees payable under the Fee Letter payable with respect
to
extensions of the Termination Date pursuant to Section 2.11 of the Credit
Agreement;
(c) An
opinion of counsel to the Loan Parties addressed to the Lender;
(d) A
Note, executed by the borrower, in the form attached hereto as Exhibit D (the
“Restated Note”); and
(e) Such
other documents, instruments and agreements as the Lender may reasonably
request.
Section 4. Effectiveness.
Upon satisfaction of the conditions precedent contained in Section 3, this
Amendment shall be deemed to be effective as of the date hereof.
Section 5. Representations. The
Borrower represents and warrants to the Lender that:
(a) Authorization. The
Borrower has the right and power, and has taken all necessary action to
authorize it, to execute and deliver this Amendment and the Restated Note and
to
perform its obligations hereunder and under the Credit Agreement and the Fee
Letter, each as amended by this Amendment, in accordance with their respective
terms. This Amendment and the Restated Note have been duly executed
and delivered by a duly authorized officer of the Borrower and this Amendment,
the Restated Note, the Credit Agreement and the Fee Letter, each as amended
by
this Amendment, is a legal, valid and binding obligation of the
Borrower
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enforceable
against the Borrower in accordance with its respective terms except as (i)
the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws
affecting creditors rights generally and (ii) the availability of equitable
remedies may be limited by equitable principles of general
applicability.
(b) Compliance
with Laws, etc. The execution and delivery by the Borrower of
this Amendment and the Restated Note and the performance by the Borrower of
this
Amendment, the Credit Agreement and the Fee Letter, each as amended by this
Amendment and the Restated Note, in accordance with their respective terms,
do
not and will not, by the passage of time, the giving of notice or
otherwise: (i) require any Governmental Approval or violate any
Applicable Law relating to any Loan Party; (ii) conflict with, result in a
breach of or constitute a default under the organizational documents of any
Loan
Party, or any indenture, agreement or other instrument to which any Loan Party
is a party or by which it or any of its respective properties may be bound;
or
(iii) result in or require the creation or imposition of any Lien upon or
with respect to any property now owned or hereafter acquired by any Loan
Party.
(c) No
Default. No Default or Event of Default has occurred and is
continuing as of the date hereof nor will exist immediately after giving effect
to this Amendment.
Section 6. Reaffirmation
of
Representations by Borrower. The Borrower hereby repeats and
reaffirms all representations and warranties made by the Borrower to the Lender
in the Credit Agreement and the other Loan Documents to which it is a party
on
and as of the date hereof and after giving effect to this Amendment with the
same force and effect as if such representations and warranties were set forth
in this Amendment in full.
Section 7. Reaffirmation
of
Guaranty by Guarantors. Each Guarantor hereby reaffirms its
continuing obligations to the Lender under Article XII of the Credit
Agreement and agrees that the transactions contemplated by this Amendment
(including, without limitation, the Borrower’s execution and delivery of the
Restated Note) shall not in any way affect the validity and enforceability
of
its obligations under Article XII of the Credit Agreement, or reduce,
impair or discharge the obligations of such Guarantor thereunder.
Section 8. Certain
References. Each reference to the Credit Agreement and the Fee
Letter in any of the Loan Documents shall be deemed to be a reference to the
Credit Agreement and the Fee Letter, as applicable, as amended by this
Amendment, and each reference to the Note shall be deemed to be a reference
to
the Restated Note.
Section 9. Expenses. The
Borrower shall reimburse the Lender upon demand for all costs and expenses
(including attorneys’ fees) incurred by the Lender in connection with the
preparation, negotiation and execution of this Amendment, the Restated Note
and
the other agreements and documents executed and delivered in connection
herewith.
Section 10. Benefits. This
Amendment shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns.
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Section 11. GOVERNING
LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 12. Effect. Except
as expressly herein amended, the terms and conditions of the Credit Agreement,
the Fee Letter and the other Loan Documents remain in full force and
effect. The amendments contained herein shall be deemed to have
prospective application only, unless otherwise specifically stated
herein.
Section 13. Counterparts. This
Amendment may be executed in any number of counterparts, each of which shall
be
deemed to be an original and shall be binding upon all parties, their successors
and assigns.
Section 14. Definitions. All
capitalized terms not otherwise defined herein are used herein with the
respective definitions given them in the Credit Agreement.
[Signatures
on Next Page]
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IN
WITNESS WHEREOF, the parties hereto
have caused this Fifth Amendment to Credit and Security Agreement to be executed
as of the date first above written.
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THE
BORROWER:
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FIVE
STAR QUALITY CARE, INC.
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By: /s/
Xxxxx X Xxxxxx Xx.
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Name:
Xxxxx X. Xxxxxx
Xx.
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Title:
Treasurer, Chief
Financial Officer and Assistant Secretary
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THE
LENDER:
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WACHOVIA
BANK, NATIONAL ASSOCIATION
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By: /s/
Xxxx Xxxxxxx
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Name:
Xxxx
Xxxxxxx
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Title:
Vice
President
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Commitment
Amount:
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$40,000,000
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[Signatures
Continued on Next Page]
[Signature
Page to Fifth Amendment to Credit and Security Agreement
with
Five Star Quality Care, Inc.]
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THE
GUARANTORS:
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ALLIANCE
PHARMACY SERVICES, LLC
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FIVE
STAR QUALITY CARE-CA, INC.
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FIVE
STAR QUALITY CARE-IA, INC.
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FIVE
STAR QUALITY CARE-NE, INC.
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THE
HEARTLANDS RETIREMENT COMMUNITY – ELLICOTT CITY I, INC.
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FIVE
STAR QUALITY CARE-AZ, LLC
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FIVE
STAR QUALITY CARE-CA, LLC
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FIVE
STAR QUALITY CARE-COLORADO, LLC
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FIVE
STAR QUALITY CARE-CT, LLC
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FIVE
STAR QUALITY CARE-GA, LLC
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FIVE
STAR QUALITY CARE-IA, LLC
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FIVE
STAR QUALITY CARE-MO, LLC
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FIVE
STAR QUALITY CARE-NE, LLC
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FIVE
STAR QUALITY CARE-WI, LLC
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FIVE
STAR QUALITY CARE-WY, LLC
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FIVE
STAR QUALITY CARE-FL, LLC
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FIVE
STAR QUALITY CARE-KS, LLC
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FIVE
STAR QUALITY CARE-MD, LLC
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FIVE
STAR QUALITY CARE-NC, LLC
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FIVE
STAR QUALITY CARE-VA, LLC
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FS
LAFAYETTE TENANT TRUST
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FS
LEISURE PARK TENANT TRUST
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FS
LEXINGTON TENANT TRUST
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FS
TENANT POOL I TRUST
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FS
TENANT POOL II TRUST
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FS
TENANT POOL III TRUST
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FS
TENANT POOL IV TRUST
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MORNINGSIDE
OF BELMONT, LLC
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MORNINGSIDE
OF GALLATIN, LLC
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MORNINGSIDE
OF SPRINGFIELD, LLC
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FSQC
FUNDING CO., LLC
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FIVE
STAR QUALITY CARE-CA II, LLC
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FIVE
STAR QUALITY CARE TRUST
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FS
TENANT HOLDING COMPANY TRUST
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By: /s/
Xxxxx X Xxxxxx Xx.
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Name: Xxxxx X. Xxxxxx Xx.
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Title: Treasurer, Chief Financial Officer and Assistant
Secretary
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[Signatures
Continued on Next Page]
[Signature
Page to Fifth Amendment to Credit and Security Agreement
with
Five Star Quality Care, Inc.]
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THE
GUARANTORS (cont.):
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MORNINGSIDE
OF BELLGRADE, RICHMOND, LLC
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MORNINGSIDE
OF CHARLOTTESVILLE, LLC
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MORNINGSIDE
OF NEWPORT NEWS, LLC
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MORNINGSIDE
OF XXXXXXXX-XXXXXXXX, LLC
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By: LIFETRUST
AMERICA, INC., its Member
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By: /s/
Xxxxx X Xxxxxx Xx.
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Name: Xxxxx X. Xxxxxx Xx.
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Title: Treasurer, Chief Financial Officer and Assistant
Secretary
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MORNINGSIDE
OF ALABAMA, L.P.
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MORNINGSIDE
OF XXXXXXXX, X.X.
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MORNINGSIDE
OF ATHENS, LIMITED PARTNERSHIP
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MORNINGSIDE
OF COLUMBUS, L.P.
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MORNINGSIDE
OF XXXXXX, LIMITED PARTNERSHIP
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MORNINGSIDE
OF DECATUR, L.P.
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MORNINGSIDE
OF XXXXX, LIMITED PARTNERSHIP
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MORNINGSIDE
OF XXXXXXXXX, X.X.
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MORNINGSIDE
OF KENTUCKY, LIMITED PARTNERSHIP
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By:LIFETRUST
AMERICA, INC., its General Partner
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By: /s/
Xxxxx X Xxxxxx Xx.
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Name: Xxxxx X. Xxxxxx Xx.
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Title: Treasurer, Chief Financial Officer and Assistant
Secretary
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EXHIBIT
D
FORM
OF
AMENDED AND RESTATED NOTE
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$40,000,000.00
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June
___, 2007
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FOR
VALUE RECEIVED, the undersigned,
FIVE STAR QUALITY CARE, INC., a corporation formed under the laws of the State
of Maryland (the “Borrower”), hereby promises to pay to the order of Wachovia
Bank, National Association (the “Lender”), One Wachovia Center, 000 Xxxxx
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, or at such other address as
may
be specified in writing by the Lender to the Borrower, the principal sum of
FORTY MILLION AND NO/100 DOLLARS ($40,000,000.00) (or such lesser amount as
shall equal the aggregate unpaid principal amount of Loans under the Credit
Agreement (as herein defined)), on the dates and in the principal amounts
provided in the Credit Agreement, and to pay interest on the unpaid principal
amount owing hereunder, at the rates and on the dates provided in the Credit
Agreement.
The
date, amount of each Loan, and each
payment made on account of the principal thereof, shall be recorded by the
Lender on its books and, prior to any transfer of this Note, endorsed by the
Lender on the schedule attached hereto or any continuation thereof, provided
that the failure of the Lender to make any such recordation or endorsement
shall
not affect the obligations of the Borrower to make a payment when due of any
amount owing under the Credit Agreement or hereunder in respect of the
Loans.
This
Note is the Note referred to in
the Credit and Security Agreement dated as of May 9, 2005 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among the Borrower, the Subsidiaries of the Borrower from
time to time party to the Credit Agreement as Guarantors, and the
Lender. Capitalized terms used herein, and not otherwise defined
herein, have their respective meanings given them in the Credit
Agreement.
The
Credit Agreement provides for the
acceleration of the maturity of this Note upon the occurrence of certain events
and for prepayments of Loans upon the terms and conditions specified
therein.
Except
as permitted by Section 13.5.(d)
of the Credit Agreement, this Note may not be assigned by the Lender to any
other Person.
THIS
NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
The
Borrower hereby waives presentment
for payment, demand, notice of demand, notice of non-payment, protest, notice
of
protest and all other similar notices.
D-1
Time
is
of the essence for this Note.
This
Note
amends and restates the terms of that certain Note dated May 9, 2005 in the
original principal amount of $25,000,000, executed and delivered by
Borrower and payable to the order of Lender. THIS NOTE IS NOT
INTENDED TO BE, AND SHALL NOT BE CONSTRUED TO BE, A NOVATION OF ANY OF THE
OBLIGATIONS OWING UNDER OR IN CONNECTION WITH SUCH OTHER NOTE.
[Signature
on Next Page]
D-2
IN
WITNESS WHEREOF, the undersigned has executed and delivered this Note under
seal
as of the date first written above.
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FIVE
STAR QUALITY CARE, INC.
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By:
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Name:
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Title:
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D-3
SCHEDULE
OF LOANS
This
Note evidences Loans made under
the within-described Credit Agreement to the Borrower, on the dates, in the
principal amounts, bearing interest at the rates and maturing on the dates
set
forth below, subject to the payments and prepayments of principal set forth
below:
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Date
of
Loan
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Principal
Amount
of
Loan
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Interest
Rate
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Amount
Paid
or
Prepaid
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Unpaid
Principal
Amount
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Notation
Made
By
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D-4
