AMENDMENT NO. 1 TO CREDIT AGREEMENT
Exhibit 10.2.1
AMENDMENT NO. 1 TO CREDIT AGREEMENT
This Amendment No. 1 to Credit Agreement (this “Amendment No. 1”), dated as of March 22, 2011,
is executed and delivered by and among AVIV FINANCING IV, L.L.C., a Delaware limited liability
company (“Parent Borrower”), each of the subsidiaries of the Parent Borrower identified on the
signature pages hereto, the (collectively, with the Parent Borrower, the “Borrowers”), AVIV REIT,
INC. (the “REIT Guarantor”) , AVIV HEALTHCARE PROPERTIES LIMITED PARTNERSHIP (the “LP Guarantor”),
AVIV HEALTHCARE PROPERTIES OPERATING PARTNERSHIP I, L.P. (the “OP Guarantor”), each of the other
guarantors identified on the signature pages hereto (collectively, with the REIT Guarantor, the LP
Guarantor and the OP Guarantor, “Guarantors” and together with the Borrowers, the “Credit
Parties”), the Lenders party hereto, and Bank of America, N.A., as administrative agent (the
“Administrative Agent”). Capitalized terms used herein but not otherwise defined herein shall have
the meanings ascribed to those terms in the Credit Agreement as defined below.
RECITALS
A. The Credit Parties, the Lenders and the Administrative Agent are parties to that certain
Credit Agreement dated as of February 4, 2011 (the “Original Credit Agreement”).
B. From and after the date hereof, the Credit Parties, the Lenders and the Administrative
Agent desire to amend the terms and provisions of the Original Credit Agreement as provided herein,
and the Original Credit Agreement as amended by this Amendment No. 1, and as may be hereafter
further supplemented, amended, modified or restated from time to time, shall be referred to
collectively as the “Credit Agreement”.
NOW, THEREFORE, in consideration of the premises herein contained, and for other good and
valuable consideration (the receipt, sufficiency and adequacy of which are hereby acknowledged),
the parties hereto (intending to be legally bound) hereby agree as follows:
1. Incorporation. The foregoing preamble and recitals are hereby incorporated herein
by this reference thereto.
2. Amendments.
(a) The definitions of “Borrowing Base Amount” and “Consolidated Leverage Ratio” contained in
Section 1.01 of the Existing Credit Agreement are hereby amended in their entirety to read
as follows:
“Borrowing Base Amount” means, (a) with respect to any date prior to the delivery of
the first Borrowing Base Certificate, $20,000,000, and (b) at any time thereafter, an amount equal
to the lesser of: (i) the Aggregate Mortgageability Amount as of such date for the Borrowing Base
Assets and (ii) the Aggregate Collateral Value Amount as of such date for the Borrowing Base
Assets.
“Consolidated Leverage Ratio” means, (a) as of any date of determination on or prior
to June 30, 2011 the ratio of (x) Consolidated Funded Debt minus the aggregate amount of
unrestricted cash on deposit held in accounts in the name of any Consolidated Party as of such date
to (y) Adjusted Consolidated EBITDA for the most recently completed four (4) fiscal
quarters, and (b) as of any date of determination thereafter, the ratio of (x) Consolidated Funded
Debt to (y) Adjusted Consolidated EBITDA for the most recently completed four (4) fiscal quarters.
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(b) Section 4.02(k) of the Existing Credit Agreement is hereby amended in
its entirety to read as follows:
(k) [Reserved].
3. Conditions Precedent. The amendments contained in Sections 2 hereof are
subject to, and contingent upon, the prior or contemporaneous satisfaction of the following
conditions precedent:
(a) The Credit Parties, the Administrative Agent and the Required Lenders shall have
executed and delivered to each other this Amendment No. 1; and
(b) Copies of the resolutions or written consent of the Credit Parties authorizing or
ratifying the execution, delivery and performance by the Credit Parties of this Amendment
No. 1.
4. Reference to and Effect on the Original Credit Agreement.
(a) Except as expressly provided herein, the Original Credit Agreement and all of the
Credit Documents shall remain unmodified and continue in full force and effect and are
hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this Amendment No. 1 shall not
operate as a waiver of: (i) any right, power or remedy of the Administrative Agent or any
Lender under the Original Credit Agreement or any of the Credit Documents, or (ii) any
Default or Event of Default under the Original Credit Agreement.
5. Costs, Expenses and Taxes. Without limiting the obligation of the Credit Parties
to reimburse the Administrative Agent and each Lender for costs, fees, disbursements and expenses
incurred by the Administrative Agent and each Lender as specified in the Credit Agreement, the
Credit Parties agree to pay on demand all reasonable costs, fees, disbursements and expenses of the
Administrative Agent in connection with the preparation, execution and delivery of this Amendment
No. 1 and the other agreements, instruments and documents contemplated hereby, including, without
limitation, reasonable attorneys’ fees and out-of-pocket expenses.
6. Representations and Warranties of the Credit Parties. Each Credit Party hereby
represents and warrants to the Administrative Agent and each Lender that on and as of the date
hereof and after giving effect to this Amendment No. 1:
(a) Each Credit Party has the requisite power and authority to execute, deliver and
perform its obligations under this Amendment No. 1. This Amendment No. 1 has been duly
authorized by all necessary action of each Credit Party. This Amendment No. 1 constitutes
the legal, valid and binding obligation of each Credit Party, enforceable against such
Credit Party in accordance with its terms, subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar law affecting creditors’ rights
generally and general principles of equity;
(b) Each Credit Party’s representations set forth in the Credit Agreement and in the
Credit Documents are true, correct and complete on and as of the date hereof,
except
for any representation made as of an earlier date, which representation shall remain
true and correct as of such earlier date; and
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(c) No Default or Event of Default has occurred and is continuing.
7. Release. In further consideration of Administrative Agent’s and each Lender’s
execution of this Amendment No. 1, the Credit Parties (each on behalf of itself and each of their
respective officers, members, managers, partners, directors, shareholders, affiliates, successors
and assigns) hereby forever remises, releases, acquits, satisfies and forever discharges the
Administrative Agent and each of the Lenders and their respective successors, assigns, affiliates,
officers, employees, directors, agents and attorneys from any and all claims, demands, liabilities,
disputes, damages, suits, controversies, penalties, fees, costs, expenses, actions and causes of
action (whether at law or in equity), other than for the Administrative Agent’s or any Lender’s
gross negligence or willful misconduct. The Credit Parties acknowledge that the Administrative
Agent is specifically relying upon the representations, warranties and agreements contained herein
and that such representations, warranties and agreements constitute a material inducement to the
Administrative Agent in entering into this Amendment No. 1.
8. Reference to Credit Agreement; No Waiver.
(a) Upon the effectiveness of this Amendment No. 1, each reference in the Credit
Agreement to “this Credit Agreement,” “this Agreement”, “hereunder,” “hereof,” “herein” or
words of like import shall mean and be a reference to the Credit Agreement as amended
hereby. The term “Credit Documents” as defined in Section 1.01 of the Credit Agreement
shall include (in addition to the Credit Documents described in the Credit Agreement) this
Amendment No. 1 and any other agreements, instruments or other documents executed in
connection herewith.
(b) The Administrative Agent’s and any Lender’s failure, at any time or times
hereafter, to require strict performance by the Credit Parties of any provision or term of
the Credit Agreement, this Amendment No. 1 or the other Credit Documents shall not waive,
affect or diminish any right of the Administrative Agent or any Lender hereafter to demand
strict compliance and performance herewith or therewith. Any suspension or waiver by the
Administrative Agent or any Lender of a breach of this Amendment No. 1 or any Event of
Default under the Credit Agreement shall not, except as expressly set forth herein,
suspend, waive or affect any other breach of this Amendment No. 1 or any Event of Default
under the Credit Agreement, whether the same is prior or subsequent thereto and whether of
the same or of a different kind or character. None of the undertakings, agreements,
warranties, covenants and representations of the Credit Parties contained in this
Amendment No. 1, shall be deemed to have been suspended or waived by the Administrative
Agent and any Lender unless such suspension or waiver is: (i) in writing and signed by the
Administrative Agent and such Lender, and (ii) delivered to the Credit Parties. In no
event shall the Administrative Agent’s and each Lender’s execution and delivery of this
Amendment No. 1 establish a course of dealing among the Administrative Agent, each Lender,
the Credit Parties or any other obligor or in any other way obligate the Administrative
Agent or each Lender to hereafter provide any amendments or waivers with respect to the
Credit Agreement. The terms and provisions of this Amendment No. 1 shall be limited
precisely as written and shall not be deemed: (A) to be a consent to a modification
(except as expressly provided herein) or waiver of any other term or condition of the
Credit Agreement or of any other Loan Document, or (B) to prejudice any right or remedy
that the Administrative Agent or any Lender may now have under or in connection with the
Credit Agreement or any of the other Credit Documents.
9. Counterparts; Facsimile. This Amendment No. 1 may be executed in any number of
counterparts and by the different parties hereto on separate counterparts and each such counterpart
shall be deemed to be an original, but all such counterparts shall together constitute but one
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and the same Amendment No. 1 Receipt of an executed signature page to this Amendment No.
1 by facsimile or other electronic transmission shall constitute for all purposes effective
delivery thereof. Electronic records of this executed Amendment No. 1 maintained by the Lenders
shall be deemed to be originals.
10. GOVERNING LAW. THIS AMENDMENT NO. 1 SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the undersigned have caused this Amendment No. 1 to Credit Agreement to be
duly executed and delivered as of the date first above written.
PARENT BORROWER
| AVIV FINANCING IV, L.L.C., a Delaware limited liability company |
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| By: | AVIV HEALTHCARE PROPERTIES OPERATING PARTNERSHIP I, L.P., | |||
| a Delaware limited partnership, | ||||
| its sole member | ||||
| By: | AVIV HEALTHCARE PROPERTIES LIMITED PARTNERSHIP, | |||
| a Delaware limited partnership, | ||||
| its general partner | ||||
| By: | AVIV REIT, INC., | |||
| a Maryland corporation, | ||||
| its general partner | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Its: | President and Chief Executive Officer | |||
Aviv Financing IV, L.L.C.
Signature Page to Amendment
March 2011
Signature Page to Amendment
March 2011
SUBSIDIARY BORROWERS
| XXXXXX NH PROPERTY, L.L.C., a Delaware limited liability company, CASA/SIERRA CALIFORNIA ASSOCIATES, L.L.C., a Delaware limited liability company, KINGS VILLE TEXAS, L.L.C., a Delaware limited liability company, MISSOURI ASSOCIATES, L.L.C., a Delaware limited liability company, MONTANA ASSOCIATES, L.L.C., an Illinois limited liability company, ORANGE, L.L.C., an Illinois limited liability company, POMONA VISTA L.L.C., an Illinois limited liability company, RICHLAND WASHINGTON, L.L.C., a Delaware limited liability company, XXXX XXXXXXX PARK PROPERTY L.L.C., an Illinois limited liability company, WATAUGA ASSOCIATES, L.L.C., an Illinois limited liability company |
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| By: | AVIV FINANCING IV, L.L.C., | |||
| a Delaware limited liability company, | ||||
| their sole member | ||||
| By: | AVIV HEALTHCARE PROPERTIES OPERATING PARTNERSHIP I, L.P., | |||
| a Delaware limited partnership, | ||||
| its sole member | ||||
| By: | AVIV HEALTHCARE PROPERTIES LIMITED PARTNERSHIP, | |||
| a Delaware limited partnership, | ||||
| its general partner | ||||
| By: | AVIV REIT, INC., | |||
| a Maryland corporation, | ||||
| its general partner | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Its: | President and Chief Executive Officer | |||
Aviv Financing IV, L.L.C.
Signature Page to Amendment
March 2011
Signature Page to Amendment
March 2011
REIT GUARANTOR
| AVIV REIT, INC., a Maryland corporation |
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| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Its: | President and Chief Executive Officer | |||
LP GUARANTOR
| AVIV HEALTHCARE PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership |
||||
| By: | AVIV REIT, INC., | |||
| a Maryland corporation, | ||||
| its general partner | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Its: | President and Chief Executive Officer | |||
OP GUARANTOR
| AVIV HEALTHCARE PROPERTIES OPERATING PARTNERSHIP I, L.P., a Delaware limited partnership |
||||
| By: | AVIV HEALTHCARE PROPERTIES LIMITED PARTNERSHIP, | |||
| a Delaware limited partnership, | ||||
| its general partner | ||||
| By: | AVIV REIT, INC., | |||
| a Maryland corporation, | ||||
| its general partner | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Its: | President and Chief Executive Officer | |||
Aviv Financing IV, L.L.C.
Signature Page to Amendment
March 2011
Signature Page to Amendment
March 2011
OTHER GUARANTORS
| AVIV HEALTHCARE CAPITAL CORPORATION, a Delaware corporation |
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| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Its: | President and Chief Executive Officer | |||
| AVIV OP LIMITED PARTNER, L.L.C., a Delaware limited liability company |
||||
| By: | AVIV HEALTHCARE PROPERTIES LIMITED PARTNERSHIP, | |||
| a Delaware limited partnership, | ||||
| its sole member | ||||
| By: | AVIV REIT, INC., | |||
| a Maryland corporation, | ||||
| its general partner | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Its: | President and Chief Executive Officer | |||
| AVIV ASSET MANAGEMENT, L.L.C., a Delaware limited liability company |
||||
| By: | AVIV HEALTHCARE PROPERTIES LIMITED PARTNERSHIP, | |||
| a Delaware limited partnership, | ||||
| its sole member | ||||
| By: | AVIV REIT, INC., | |||
| a Maryland corporation, | ||||
| its general partner | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Its: | President and Chief Executive Officer | |||
Aviv Financing IV, L.L.C.
Signature Page to Amendment
March 2011
Signature Page to Amendment
March 2011
| AVIV FINANCING II, L.L.C., a Delaware limited liability company |
||||
| By: | AVIV HEALTHCARE PROPERTIES OPERATING PARTNERSHIP I, L.P., | |||
| a Delaware limited partnership, | ||||
| its sole member | ||||
| By: | AVIV HEALTHCARE PROPERTIES LIMITED PARTNERSHIP, | |||
| a Delaware limited partnership, | ||||
| its general partner | ||||
| By: | AVIV REIT, INC., | |||
| a Maryland corporation, | ||||
| its general partner | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Its: | President and Chief Executive Officer | |||
| AVIV FINANCING III, L.L.C., a Delaware limited liability company |
||||
| By: | AVIV HEALTHCARE PROPERTIES OPERATING PARTNERSHIP I, L.P., | |||
| a Delaware limited partnership, | ||||
| its sole member | ||||
| By: | AVIV HEALTHCARE PROPERTIES LIMITED PARTNERSHIP, | |||
| a Delaware limited partnership, | ||||
| its general partner | ||||
| By: | AVIV REIT, INC., | |||
| a Maryland corporation, | ||||
| its general partner | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Its: | President and Chief Executive Officer | |||
Aviv Financing IV, L.L.C.
Signature Page to Amendment
March 2011
Signature Page to Amendment
March 2011
| AVIV FINANCING V, L.L.C., a Delaware limited liability company |
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| By: | AVIV HEALTHCARE PROPERTIES OPERATING PARTNERSHIP I, L.P., | |||
| a Delaware limited partnership, | ||||
| its sole member | ||||
| By: | AVIV HEALTHCARE PROPERTIES LIMITED PARTNERSHIP, | |||
| a Delaware limited partnership, | ||||
| its general partner | ||||
| By: | AVIV REIT, INC., | |||
| a Maryland corporation, | ||||
| its general partner | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Its: | President and Chief Executive Officer | |||
Aviv Financing IV, L.L.C.
Signature Page to Amendment
March 2011
Signature Page to Amendment
March 2011
| ARKANSAS AVIV, L.L.C., a Delaware limited liability company, AVIV FOOTHILLS, L.L.C., a Delaware limited liability company, BELLEVILLE ILLINOIS, L.L.C., a Delaware limited liability company, BELLINGHAM II ASSOCIATES, L.L.C., a Delaware limited liability company, CAMAS ASSOCIATES, L.L.C., a Delaware limited liability company, CHATHAM AVIV, L.L.C., a Delaware limited liability company, CLARKSTON CARE, L.L.C., a Delaware limited liability company, COLONIAL MADISON ASSOCIATES, L.L.C., a Delaware limited liability company, CR AVIV, L.L.C., a Delaware limited liability company, EFFINGHAM ASSOCIATES, L.L.C., an Illinois limited liability company, ELITE MATTOON, L.L.C., a Delaware limited liability company, ELITE YORKVILLE, L.L.C., a Delaware limited liability company, FOUNTAIN ASSOCIATES, L.L.C., a Delaware limited liability company, FOUR FOUNTAINS AVIV, L.L.C., a Delaware limited liability company |
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| By: | AVIV FINANCING II, L.L.C., | |||
| a Delaware limited liability company, | ||||
| their sole member | ||||
| By: | AVIV HEALTHCARE PROPERTIES OPERATING PARTNERSHIP I, L.P., | |||
| a Delaware limited partnership, | ||||
| its sole member | ||||
| By: | AVIV HEALTHCARE PROPERTIES LIMITED PARTNERSHIP, | |||
| a Delaware limited partnership, | ||||
| its general partner | ||||
| By: | AVIV REIT, INC., | |||
| a Maryland corporation, | ||||
| its general partner | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Its: | President and Chief Executive Officer | |||
Aviv Financing IV, L.L.C.
Signature Page to Amendment
March 2011
Signature Page to Amendment
March 2011
| GILTEX CARE, L.L.C., a Delaware limited liability company, HHM AVIV, L.L.C., a Delaware limited liability company, HIDDEN ACRES PROPERTY, L.L.C., a Delaware limited liability company, IDAHO ASSOCIATES, L.L.C., an Illinois limited liability company, KARAN ASSOCIATES TWO, L.L.C., a Delaware limited liability company, KB NORTHWEST ASSOCIATES, L.L.C., a Delaware limited liability company, MANSFIELD AVIV, L.L.C., a Delaware limited liability company, MINNESOTA ASSOCIATES, L.L.C., a Delaware limited liability company, MONTEREY PARK LEASEHOLD MORTGAGE, L.L.C., a Delaware limited liability company, NORTHRIDGE ARKANSAS, L.L.C., a Delaware limited liability company, NORWALK ALF PROPERTY, L.L.C., a Delaware limited liability company, OAKLAND NURSING HOMES, L.L.C., a Delaware limited liability company, OCTOBER ASSOCIATES, L.L.C., a Delaware limited liability company, XXXXX ASSOCIATES, L.L.C., a Delaware limited liability company, OHIO AVIV, L.L.C., a Delaware limited liability company |
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| By: | AVIV FINANCING II, L.L.C., | |||
| a Delaware limited liability company, | ||||
| their sole member | ||||
| By: | AVIV HEALTHCARE PROPERTIES OPERATING PARTNERSHIP I, L.P., | |||
| a Delaware limited partnership, | ||||
| its sole member | ||||
| By: | AVIV HEALTHCARE PROPERTIES LIMITED PARTNERSHIP, | |||
| a Delaware limited partnership, | ||||
| its general partner | ||||
| By: | AVIV REIT, INC., | |||
| a Maryland corporation, | ||||
| its general partner | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Its: | President and Chief Executive Officer | |||
Aviv Financing IV, L.L.C.
Signature Page to Amendment
March 2011
Signature Page to Amendment
March 2011
| OREGON ASSOCIATES, L.L.C., a Delaware limited liability company, PRESCOTT ARKANSAS, L.L.C., a Delaware limited liability company, SALEM ASSOCIATES, L.L.C., a Delaware limited liability company, SAN XXXX NH PROPERTY, L.L.C., a Delaware limited liability company, SANTA FE MISSOURI ASSOCIATES, L.L.C., an Illinois limited liability company, XXXXXX AVIV, L.L.C., a Delaware limited liability company, SKAGIT AVIV, L.L.C., a Delaware limited liability company, SOUTHEAST MISSOURI PROPERTIES, L.L.C., a Delaware limited liability company, STAR CITY ARKANSAS, L.L.C., a Delaware limited liability company, SUN-MESA PROPERTIES, L.L.C., an Illinois limited liability company, WELLINGTON LEASEHOLD, L.L.C., a Delaware limited liability company, WEST PEARL STREET, L.L.C., a Delaware limited liability company, WOODLAND ARKANSAS, L.L.C., a Delaware limited liability company, XION, L.L.C., an Illinois limited liability company |
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| By: | AVIV FINANCING II, L.L.C., | |||
| a Delaware limited liability company, | ||||
| their sole member | ||||
| By: | AVIV HEALTHCARE PROPERTIES OPERATING PARTNERSHIP I, L.P., | |||
| a Delaware limited partnership, | ||||
| its sole member | ||||
| By: | AVIV HEALTHCARE PROPERTIES LIMITED PARTNERSHIP, | |||
| a Delaware limited partnership, | ||||
| its general partner | ||||
| By: | AVIV REIT, INC., | |||
| a Maryland corporation, | ||||
| its general partner | ||||
By:
|
/s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Its: | President and Chief Executive Officer | |||
Aviv Financing IV, L.L.C.
Signature Page to Amendment
March 2011
Signature Page to Amendment
March 2011
| LENDERS: | BANK OF AMERICA, N.A., as Administrative Agent |
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| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Director | |||
| BANK OF AMERICA, N.A., as L/C Issuer, Swing Line Lender and as a Lender |
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| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Director | |||
Aviv Financing IV, L.L.C.
Signature Page to Amendment
March 2011
Signature Page to Amendment
March 2011
