AMENDMENT NO. 1 TO CREDIT AGREEMENT
Exhibit 10.1
AMENDMENT NO. 1 TO CREDIT AGREEMENT
This AMENDMENT NO. 1 TO CREDIT AGREEMENT, dated as of May 13, 2011 (this “Amendment No. 1”),
is by and among HEALTHCARE TRUST OF AMERICA, INC., a Maryland corporation (the “Company”),
HEALTHCARE TRUST OF AMERICA HOLDINGS, LP, a Delaware limited partnership (the “Borrower”), the
Lenders party hereto, and Compass Bank, The Bank of Nova Scotia, Union Bank, N.A., and Sumitomo
Mitsui Banking Corporation (each, a “New Lender”, and, collectively, the “New Lenders”) and
JPMORGAN CHASE BANK, N.A., as administrative agent for the Lenders (the “Administrative Agent”).
Reference is made to that certain Credit Agreement, dated as of November 22, 2010 (the “Credit
Agreement”), by and among the Company, the Borrower, the Lenders referenced therein and the
Administrative Agent. Capitalized terms used herein without definition shall have the same meanings
as set forth in the Credit Agreement, as amended hereby.
RECITALS
WHEREAS, the Borrower has requested that the Lenders permit the aggregate Commitments to be
increased to $575,000,000, extend the Maturity Date, and make other amendments to the Credit
Agreement, and the Lenders are willing to make such changes;
WHEREAS, pursuant to Section 2.4 of the Credit Agreement, the Borrower has requested, and the
New Lenders, certain of the existing Lenders and the Administrative Agent have agreed, to increase
existing Commitments or provide new Commitments under the Credit Agreement; and
WHEREAS, each of the New Lenders wishes to be added as a “Lender” under the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT. As of the Amendment Effective Date (as defined in
Section 4 hereof), the Credit Agreement is hereby amended as follows:
1.1 Extension of Maturity Date. The definition of “Maturity Date” in Section 1.1 of
the Credit Agreement is restated in its entirety to read as follows:
“Maturity Date” means May 13, 2014; provided that the Borrower may, at its
option (which shall be binding on the Lenders), by written notice to the Administrative
Agent (which shall promptly notify each of the Lenders) given at least thirty (30) but no
more than sixty (60) days prior to the then Maturity Date, extend the Maturity Date for up
to one (1) year (to not later than May 13, 2015) so long as (A) no Default or Event of
Default shall have occurred and be continuing on the date of such written notice, (B) each
of the representations and warranties made by any Loan Party in or pursuant to the Loan
Documents shall be true and correct in all material respects on and as of the date of such
written notice as if made on and as of such date (unless (x) such representations and
warranties expressly relate to an earlier date, in which case such representations and
warranties shall be true and correct in all material respects as of such earlier date or (y)
such representations and warranties are qualified as to “materiality”, “Material Adverse
Effect” or similar language, in which case such representations and warranties shall be true
and correct in all respects taking into account such language), and (C) the Borrower pays an
aggregate extension fee equal to 0.25% of the then existing Commitments (to the
Administrative Agent for the ratable benefit of the Lenders).”
1.2 Definition of Restricted Payment. The definition of “Restricted Payment” in
Section 1.1 of the Credit Agreement is amended by inserting the words “, but excluding dividends
payable solely in additional shares of common stock of the Borrower” at the end of such definition.
1.3 Increase of Amount of Permitted Incremental Commitments. Section 2.4(a) of the
Credit Agreement is amended by deleting the amount “$225,000,000” set forth in each of the fourth
and eleventh lines thereof and substituting the amount “$300,000,000” in place thereof.
1.4 Amendment to Section 6.13(b). Section 6.13(b) of the Credit Agreement is amended
by restating such section in its entirety to read as follows:
“(b) Secured Leverage Ratio. Permit the ratio of Secured Indebtedness to
Total Asset Value as at the last day of any period of four consecutive fiscal
quarters of the Company to exceed 40%.”
1.5 Deletion of Section 6.13(h). Section 6.13(h) of the Credit Agreement is amended
by deleting such section in its entirety and substituting the following in place thereof:
“(h) [Reserved].”
1.6 Revolving Commitment. The aggregate Commitments are increased to $575,000,000.
1.7 Commitments. Schedule 2.1 to the Credit Agreement is hereby deleted in
its entirety and Schedule 2.1 to this Amendment No. 1 is substituted in place thereof.
1.8 New Lenders. Compass Bank hereby agrees to provide a new Commitment in the amount
of fifty million dollars ($50,000,000). The Bank of Nova Scotia hereby agrees to provide a new
Commitment in the amount of forty-five million dollars ($45,000,000). Union Bank hereby agrees to
provide a new Commitment in the amount of forty million dollars ($40,000,000). Sumitomo Mitsui
Banking Corporation hereby agrees to provide a new Commitment in the amount of thirty-five million
($35,000,000). From and after the date hereof, each of the New Lenders shall be deemed to be a
Lender for all purposes of the Credit Agreement, and each reference to the Lenders in the Credit
Agreement shall be deemed to include each of the New Lenders. Each of the New Lenders hereby
covenants and agrees to become a party to any of the other Loan Documents as the Administrative
Agent may reasonably request. Each of the New Lenders appoints JPMorgan Chase Bank, N.A. as the
Administrative
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Agent and authorizes the Administrative Agent to take such action on its behalf and to
exercise such powers under the Credit Agreement and the other Loan Documents as are delegated to
the Administrative Agent by the terms thereof, together with such powers as are reasonably
incidental thereto. Each of JPMorgan Chase Bank, N.A., Xxxxx Fargo Bank, N.A., Deutsche Bank AG
New York Branch, U.S. Bank National Association, Capital One, N.A., and Regions Bank confirms the
increase of its Commitment as set forth in Schedule 2.1 attached to this Amendment No. 1.
1.9 Request and Waiver under Section 2.4 of Credit Agreement. This Amendment No. 1 is
and shall be deemed to be for all purposes of the Credit Agreement the first and the complete
exercise by the Borrower of its rights under Section 2.4 of the Credit Agreement (as amended
hereby) to request an increase of the Commitments. From and after the effectiveness of this
Amendment No. 1, the Borrower shall have no further rights to increase the Commitments under
Section 2.4 of the Credit Agreement.
1.10 Representations, Warranties and Agreements of New Lender. Each of the New
Lenders (a) represents and warrants that (i) it has full power and authority, and has taken all
action necessary, to execute and deliver this Amendment No. 1 and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the
requirements to be an assignee under Section 9.4 of the Credit Agreement (subject to such consents,
if any, as may be required thereunder), (iii) from and after the Amendment Effective Date, it shall
be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of its
Commitment, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the
Credit Agreement, and has received or has been accorded the opportunity to receive copies of the
most recent financial statements delivered pursuant to Section 5.1 of the Credit Agreement, as
applicable, and such other documents and information as it deems appropriate to make its own credit
analysis and decision to enter into this Amendment No. 1, (v) it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and decision to enter into
this Amendment No. 1, and (vi) if it is a Foreign Lender, any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement has been delivered to the
Administrative Agent; and (b) agrees that (i) it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be performed by it as a
Lender.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE BORROWER AND THE COMPANY
In order to induce the New Lenders and Administrative Agent to enter into this Amendment No.
1, the Borrower and the Company each represents and warrants to each New Lender and Administrative
Agent that the following statements are true, correct and complete:
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(i) each of the Borrower and the Company has the power and authority, and the legal right, to
make, deliver and perform its obligations under the Credit Agreement as amended by this Amendment
No. 1 (the “Amended Agreement”);
(ii) each of the Borrower and the Company has taken all necessary organizational action to
authorize the execution, delivery and performance of this Amendment No. 1;
(iii) no consent or authorization of, filing with, notice to or other act by or in respect of,
any Governmental Authority or any other Person is required in connection with the execution,
delivery, performance, validity or enforceability of this Amendment No. 1, except consents,
authorizations, filings and notices which have been obtained or made and are in full force and
effect;
(iv) the execution, delivery and performance of this Amendment No. 1 will not violate any
Requirement of Law or any Contractual Obligation of any Group Member, except for any such violation
which could not reasonably be expected to have a Material Adverse Effect, and will not result in,
or require, the creation or imposition of any Lien on any of their respective properties or
revenues pursuant to any Requirement of Law or any such Contractual Obligation.
(v) this Amendment No. 1 and the Amended Agreement have been duly executed and delivered by
the Borrower and the Company and are the legal, valid and binding obligations of Borrower and the
Company, enforceable against the Borrower and the Company in accordance with their respective
terms, except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally
and by general equitable principles (whether enforcement is sought by proceedings in equity or at
law);
(vi) the representations and warranties of the Borrower and the Company contained in Section 3
of the Credit Agreement are and will be true and correct in all material respects on and as of the
date hereof and the Amendment Effective Date to the same extent as though made on and as of such
dates, except to the extent such representations and warranties specifically relate to an earlier
date, in which case they were true and correct in all material respects on and as of such earlier
date; and
(vii) no event has occurred and is continuing or will result from the consummation of the
transactions contemplated by this Amendment No. 1 that would constitute a Default or Event of
Default.
SECTION 3. ACKNOWLEDGEMENT AND CONSENT
Each Guarantor has read this Amendment No. 1 and consents to the terms hereof and further
hereby confirms and agrees that, notwithstanding the effectiveness of this Amendment No. 1, the
obligations of such Guarantor under each of the Loan Documents to which such Guarantor is a party
shall not be impaired and each of the Loan Documents to which such Guarantor is a party is, and
shall continue to be, in full force and effect and is hereby confirmed and ratified in all
respects.
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Each of the Company, the Borrower and the Subsidiary Guarantors hereby acknowledges and agrees
that the Guarantied Obligations under, and as defined in, the Guaranty, dated as of November 22,
2010, by and among the Company, Borrower, the Subsidiary Guarantors and the Administrative Agent
(the “Guaranty”) will include all Obligations under, and as defined in, the Credit Agreement (as
amended hereby).
Each Guarantor acknowledges and agrees that (i) notwithstanding the conditions to
effectiveness set forth in this Amendment No. 1, such Guarantor is not required by the terms of the
Credit Agreement or any other Loan Document to consent to the amendments to the Credit Agreement
effected pursuant to this Amendment No. 1 and (ii) nothing in the Credit Agreement, this Amendment
No. 1 or any other Loan Document shall be deemed to require the consent of such Guarantor to any
future amendments to the Credit Agreement.
SECTION 4. CONDITIONS TO EFFECTIVENESS
Except as set forth below, Section 1 of this Amendment No. 1 shall become effective only upon
the satisfaction of the following conditions precedent (the date of satisfaction of such conditions
being referred to as the “Amendment Effective Date”):
A. The Borrower, the Company, the other Guarantors, the Administrative Agent, each of the
Lenders, and each of the New Lenders shall have indicated their consent hereto by the execution and
delivery of the signature pages hereof to the Administrative Agent.
B. The Administrative Agent shall have received a secretary’s certificate of the Company and
the Borrower (i) either confirming that there have been no changes to its organizational documents
since November 22, 2010, or if there have been changes to the Company’s or the Borrower’s
organizational documents since such date, certifying as to such changes, and (ii) certifying as to
resolutions and incumbency of officers with respect to this Amendment No. 1 and the transactions
contemplated hereby.
C. The New Lenders and the Administrative Agent shall have received all reasonable
out-of-pocket costs and expenses for which invoices have been presented (including the reasonable
fees and expenses of legal counsel for which the Borrower agrees it is responsible pursuant to
Section 9.3 of the Credit Agreement), incurred in connection with this Amendment No. 1.
D. Execution and delivery to the Administrative Agent by the Borrower of Notes in favor of
the New Lenders and replacement Notes in favor of the Lenders that are increasing their
Commitments, in each case in the amounts of their respective Commitments set forth on Schedule
2.1 attached hereto.
E. Delivery to the Administrative Agent by Xxx, Castle & Xxxxxxxxx LLP, as counsel to the
Borrower, of an opinion addressed to the Lenders, the New Lenders and the Administrative Agent in
form and substance reasonably satisfactory to the Administrative Agent.
F. Payment by the Borrower of any agreed upon compensation to the Lenders as provided in
Section 2.4 of the Credit Agreement arising out of the addition of each of the New
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Lenders as a “Lender” under the Credit Agreement, the increases of the Commitments and any
resulting reallocation of the Loans.
G. The conditions set forth in Section 4.2 of the Credit Agreement shall have been satisfied
and the Administrative Agent shall have received a certificate dated the Amendment Effective Date
and executed by a Responsible Officer of the Borrower that such conditions have been satisfied and
that the Borrower shall be in pro forma compliance with the covenants set forth in Section 6.13 of
the Credit Agreement after giving effect to the incremental Commitments, the Loans, if any, to be
made thereunder on the Amendment Effective Date and the application of the proceeds, if any,
therefrom as if made and applied on such date and after giving effect to this Amendment No. 1.
SECTION 5. MISCELLANEOUS
A. Reference to and Effect on the Credit Agreement and the Other Loan Documents.
(i) On and after the effective date of this Amendment No. 1, each reference in the Credit
Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring to
the Credit Agreement and each reference in the other Loan Documents to the “Credit Agreement”,
“thereunder”, “thereof” or words of like import referring to the Credit Agreement shall mean and be
a reference to the Credit Agreement as amended hereby.
(ii) Except as specifically amended by this Amendment No. 1, the Credit Agreement and the
other Loan Documents shall remain in full force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment No. 1 shall not, except as
expressly provided herein, constitute a waiver of any provision of, or operate as a waiver of any
right, power or remedy of the Administrative Agent or any Lender under the Credit Agreement or any
of the other Loan Documents.
B. Headings. Section and subsection headings in this Amendment No. 1 are included herein for
convenience of reference only and shall not constitute a part of this Amendment No. 1 for any other
purpose or be given any substantive effect.
C. Applicable Law. THIS AMENDMENT NO. 1 AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
D. Counterparts; Effectiveness. This Amendment No. 1 may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts together shall
constitute but one and the same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages are physically
attached to the same document. This Amendment No. 1 (other than the provisions of Section 1
hereof, the effectiveness of which is governed by Section 4 hereof) shall become
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effective upon the execution of a counterpart hereof by the Company, Borrower and the New
Lenders and receipt by Borrower and Administrative Agent of written or telephonic notification of
such execution and authorization of delivery thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be duly executed
and delivered by their respective officers thereunto duly authorized as of the date first written
above.
| COMPANY: | HEALTHCARE TRUST OF AMERICA, INC. | |||||
| By: | /s/ Xxxxxx X. Xxxxxx
|
|||||
| Title: Chief Financial Officer | ||||||
| BORROWER: | HEALTHCARE TRUST OF AMERICA HOLDINGS, LP | |||||
| By: | Healthcare Trust of America, Inc., its General Partner | |||||
| By: | /s/ Xxxxxx X. Xxxxxx
|
|||||
| Title: Chief Financial Officer | ||||||
| SUBSIDIARY GUARANTORS | ||
(FOR PURPOSES OF |
||
SECTION 3):
|
HTA — SKYLYN, LLC | |
| HTA — SUGAR LAND, LLC | ||
| HTA — LOCH RAVEN, LLC | ||
| HTA — CORSICANA, LLC | ||
| HTA — FORT XXXXX, LLC | ||
| HTA — SAN XXXXXX, LLC | ||
| HTA — MOUNTAIN PLAINS-TX, LLC | ||
| HTA — WISCONSIN MOB PORTFOLIO, LLC | ||
| HTA — TRIUMPH, LLC | ||
| HTA — 2750 MONROE, LLC | ||
| HTA — LIMA, LLC | ||
| HTA — CAMP CREEK, LLC | ||
| HTA — AMARILLO HOSPITAL, LLC | ||
| HTA — XXXXXX, LLC | ||
| HTA — EAST XXXXXX, LLC | ||
| HTA — TUCSON MEDICAL OFFICE, LLC | ||
| HTA — XXXXXX PARK PLACE, LLC | ||
| HTA — ST. XXXX PHYSICIAN CENTER, LLC | ||
| HTA — MEDICAL PORTFOLIO 4, LLC | ||
| HTA — FORT ROAD MEDICAL, LLC | ||
| HTA — LIBERTY FALLS MEDICAL PLAZA, LLC | ||
| HTA — VISTA PROFESSIONAL CENTER, LLC | ||
| HTA — OKLAHOMA CITY, LLC | ||
| HTA — POUGHKEEPSIE, LLC | ||
| HTA — SAN XXXXXX, LLC | ||
| HTA — MEDICAL PORTFOLIO 4 — PARMA, LLC | ||
| HTA — E FLORIDA LTC, LLC | ||
| By: Healthcare Trust of America Holdings, LP, the sole member of each of the above Subsidiary Guarantors |
| By: | Healthcare Trust of America, Inc., its general partner |
|||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||||
| Name: | ||||||||
| Title: | Chief Financial Officer | |||||||
LENDERS:
| X.X. XXXXXX CHASE BANK, N.A., as Administrative Agent |
||||
| By: | /s/ Xxxxxxx X. Xxx | |||
| Name: | Xxxxxxx X. Xxx | |||
| Title: | Vice President | |||
| DEUTSCHE BANK AG NEW YORK BRANCH | ||||||
| By | /s/ Xxxxxxxxx X. Xxxxx | |||||
| Name: | ||||||
| Title: | Managing Director | |||||
| By | /s/ Xxxx X. Xxx | |||||
| Name: | ||||||
| Title: | Vice President | |||||
| XXXXX FARGO BANK, N.A. | ||||||
| By Name: |
/s/ Xxxxxxx Xxxx
|
|||||
| Title: | Assistance Vice President | |||||
| FIFTH THIRD BANK, an Ohio banking corporation | ||||||
| By Name: |
/s/ Xxxxxxx X. Xxxxxx
|
|||||
| Title: | VP | |||||
| U.S. BANK NATIONAL ASSOCIATION | ||||||
| By: Name: |
/s/ Xxxx Xxxxxx
|
|||||
| Title: | Vice President | |||||
| CAPITAL ONE, N.A. | ||||||
| By Name: |
/s/ Xxxxxxxxx X. Xxxxxxx
|
|||||
| Title: | Vice President | |||||
| REGIONS BANK | ||||||
| By Name: |
/s/ Xxxx Xxxxx
|
|||||
| Title: | SVP | |||||
| COMPASS BANK, as New Lender | ||||||
| By: |
/s/ Xxxxx Xxxx
|
|||||
| Title: Senior Vice President | ||||||
| THE BANK OF NOVA SCOTIA, as New Lender | ||||||
| By: |
/s/ Xxxxxxxx X. Xxxxxxx
|
|||||
| Title: Director | ||||||
| UNION BANK, N.A., as New Lender |
||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Assistant Vice President | |||
| SUMITOMO MITSUI BANKING CORPORATION, as New Lender |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Senior Vice President | |||
SCHEDULE 2.1
Commitments
| Lender Name | Commitment Amount | |||
JPMorgan Chase Bank, N.A. |
$ | 75,000,000 | ||
Xxxxx Fargo Bank, N.A. |
$ | 65,000,000 | ||
Deutsche Bank AG New York Branch |
$ | 65,000,000 | ||
U.S. Bank National Association |
$ | 60,000,000 | ||
Capital One, N.A. |
$ | 50,000,000 | ||
Regions Bank |
$ | 50,000,000 | ||
Compass Bank |
$ | 50,000,000 | ||
The Bank of Nova Scotia |
$ | 45,000,000 | ||
Fifth Third Bank, an Ohio banking corporation |
$ | 40,000,000 | ||
Union Bank, N.A. |
$ | 40,000,000 | ||
Sumitomo Mitsui Banking Corporation |
$ | 35,000,000 | ||
TOTAL: |
$ | 575,000,000 | ||
