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EXHIBIT
10.1
MODIFICATION
AGREEMENT
THIS MODIFICATION AGREEMENT,
dated as of March 30, 2007 (this “ Modification
Agreement ”), of that certain Credit Agreement referenced
below is by and among Ventas Realty, Limited Partnership (the
“ Borrower ”), the Guarantors, the undersigned
Lenders, and Bank of America, N.A., as administrative agent (the
“ Administrative Agent ”), the Issuing Bank and
the Swingline Lender. Capitalized terms used but not otherwise
defined herein have the meanings provided in the Credit
Agreement.
WITNESSETH
WHEREAS, a revolving credit
facility was established in favor of the Borrower pursuant to the
terms of that certain Credit and Guaranty Agreement, dated as of
April 26, 2006 (as amended, restated, extended, supplemented,
renewed, replaced or otherwise modified from time to time, the
“ Credit Agreement ”), by and among the
Borrower, the Guarantors, the Lenders, and the Administrative
Agent;
WHEREAS, the Borrower has
requested that the Total Revolving Committed Amount be increased by
$100 million from $500 million to $600 million; and
WHEREAS, certain of the
Revolving Lenders have agreed to increase their Revolving
Commitments pursuant to Section 2.1(d) of the Credit
Agreement, as shown on Schedule 1.1 attached hereto, on the
terms and conditions set forth herein.
NOW, THEREFORE, IN
CONSIDERATION of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Increase in Revolving
Commitments . Each of the Revolving Lenders party to this
Modification Agreement severally agrees to provide additional
Revolving Commitments, if any, under the Credit Agreement as set
forth on Schedule 1.1 attached hereto. After giving effect
to such additional Revolving Commitments, the Revolving Commitment
Percentage of each Lender shall be revised as set forth on
Schedule 1.1 attached hereto. Schedule 1.1 to the Credit
Agreement is hereby replaced with Schedule 1.1 attached
hereto.
2. Increase in LOC
Committed Amount . Concurrently with the increase in the Total
Revolving Committed Amount pursuant to this Modification Agreement,
the LOC Committed Amount is hereby increased proportionately in
accordance with Section 2.1(d)(ix) of the Credit Agreement
such that the LOC Committed Amount equals $90 million.
3. Power and Authority
. Each of the Revolving Lenders party to this Modification
Agreement hereby represents and warrants that it has full power and
authority, and has taken all action necessary, to execute and
deliver this Modification Agreement and to consummate the
transactions contemplated hereby.
4. Conditions
Precedent . This Modification Agreement shall be effective
immediately upon the satisfaction in full or waiver by the
Administrative Agent and the Revolving Lenders providing additional
Revolving Commitments hereunder of the following conditions
precedent:
(a) Executed Modification
Agreement . The Administrative Agent shall have received
executed counterparts of this Modification Agreement, which, when
taken together, bear the signatures of the Administrative Agent,
the Credit Parties and the Revolving Lenders providing additional
Revolving Commitments hereunder.
(b) Secretary’s
Certificate . The Administrative Agent shall have received a
certificate of the Secretary or Authorized Officer of each Credit
Party, dated as of the date hereof, and certifying, respectively,
(i) that the Organizational Documents of such Credit Party
previously delivered to the Administrative Agent have not been
amended, supplemented or otherwise modified and are currently in
full force and effect, except as noted therein (in which case a
complete copy of such Organizational Documents, including any
amendments thereto shall be attached to such certificate),
(ii) (A) that attached thereto is a true and complete
copy of resolutions adopted by Ventas’ Board of Directors
authorizing the increase in the Total Revolving Committed Amount
contemplated in this Modification Agreement, the Guaranty of all
borrowings under the Credit Agreement (after giving effect to the
increase in the Total Revolving Committed Amount and the LOC
Committed Amount as evidenced by this Modification Agreement) by
Ventas and the other Guarantors and the execution and delivery
hereof, and further certifying that such resolutions have not been
amended, rescinded or supplemented and are currently in effect and
(B) that attached thereto is a true and complete copy of
resolutions adopted by the Board of Directors, Board of Managers or
Board of Trustees, as applicable, of each Guarantor (other than
those Guarantors whose resolutions are certified pursuant to
clause (A) above), or each entity acting on behalf of
such Guarantors, as applicable, authorizing the Guaranty of all
borrowings under the Credit Agreement (after giving effect to the
increase in the Total Revolving Committed Amount and the LOC
Committed Amount as evidenced by this Modification Agreement) by
each such Guarantor to which such resolutions respectively relate
and the execution and delivery hereof, and further certifying that
such resolutions have not been amended, rescinded or supplemented
and are currently in effect and (iii) as to the incumbency and
specimen signature of each officer of Ventas and each other Credit
Party, or each entity acting on behalf of such Credit Party,
executing this Modification Agreement or any other document
delivered in connection herewith on behalf of Ventas or on behalf
of Ventas, as the Borrower’s general partner, on behalf of
the Borrower (such certificate to contain a certification by
another officer of Ventas as to the incumbency and signature of the
officer signing the certificate referred to in this subsection
(b) ).
(c) Good Standing
Certificates . The Administrative Agent shall have received
certificates of good standing or the equivalent for each of the
Borrower and Ventas, Inc. from its respective jurisdiction of
organization or formation certified as of a recent date by the
appropriate Governmental Authority.
(d) Legal Opinions .
The Administrative Agent shall have received the written opinions
of (i) T. Richard Riney, internal general counsel to the
Credit Parties, with respect to the authorization, execution and
delivery of this Modification Agreement and (ii) Barack
Ferrazzano Kirschbaum Perlman & Nagelberg LLP, counsel to
the Credit Parties, with respect to enforceability of this
Modification Agreement, assuming that the substantive laws of the
States of Illinois and New York are identical and certain other
matters, each dated as of the date hereof and addressed to the
Administrative Agent, the Issuing Bank, the Swingline Lender and
the Lenders, which opinions shall be in form and substance
reasonably satisfactory to the Administrative Agent and to
Moore & Van Allen PLLC, counsel to the Administrative
Agent.
(e) Fees and Expenses
. The Borrower shall have paid all upfront and/or arrangement fees,
if any, in respect of the new Revolving Commitments so
established.
2
For purposes of determining
compliance with the conditions specified in this
Section 4 , each of the Revolving Lenders that has
signed this Modification Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each
document or other matter required hereunder to be consented to or
approved by or acceptable or satisfactory to a Lender, unless the
Administrative Agent shall have received written notice from such
Lender prior to the effectiveness of this Modification Agreement
specifying its objection thereto.
5. Effectiveness of
Agreement . Upon effectiveness of this Modification Agreement,
all references to the Credit Agreement in each of the Fundamental
Documents shall hereafter mean the Credit Agreement as modified by
this Modification Agreement. Except as specifically modified or
amended hereby or otherwise agreed in writing, the Credit Agreement
and the other Fundamental Documents (including, in each case,
schedules and exhibits thereto) are hereby ratified and confirmed
and shall remain in full force and effect according to its
terms.
6. Representations and
Warranties; Defaults . The Credit Parties, jointly and
severally, affirm the following:
(a) the execution, delivery
and performance of this Modification Agreement have been duly
authorized by all necessary action on the part of each such Credit
Party;
(b) the representations and
warranties set forth in Article IV of the Credit Agreement and the
other Fundamental Documents are true and correct in all material
respects on and as of the date hereof (except to the extent such
representations and warranties expressly relate to an earlier
date); and
(c) no Default or Event of
Default has occurred and is continuing, nor shall any such event
occur by reason of entering into this Modification
Agreement.
7. Guarantor
Acknowledgment . Each Guarantor hereby (a) acknowledges
and consents to all of the terms and conditions of this
Modification Agreement, (b) reaffirms that, jointly and
severally together with the other Guarantors, it guarantees the
prompt payment and performance of their obligations as provided in
Article IX of the Credit Agreement and (c) acknowledges and
agrees that the such obligations will include any Obligations with
respect to or resulting from the increase in the Total Revolving
Committed Amount as provided hereunder.
8. Counterparts . This
Modification Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9. Fees and Expenses .
The Borrower shall pay all reasonable out-of-pocket fees and
expenses of the Administrative Agent (including reasonable
attorneys’ fees and expenses of Moore & Van Allen,
PLLC, arrangement and syndication expenses, but excluding fees for
internal counsel) in connection with the preparation, execution and
delivery of this Modification Agreement.
10. Prepayment of Loans;
Break-Funding Costs . The Borrower shall make such prepayments
and adjustments on the Revolving Loans outstanding on the date that
the increase in the Revolving Commitments hereunder becomes
effective (including payment of any amounts owing under
Section 3.5 of the Credit Agreement) as necessary to give
effect to the revised Revolving Commitment Percentages and
Revolving Commitments pursuant to this Modification
Agreement.
3
11. Governing Law .
This Modification Agreement shall be governed by, and construed in
accordance with, the law of the State of New York applicable to
agreements made and to be performed entirely within such state;
provided that the Administrative Agent and each Lender shall retain
all rights arising under federal law.
[SIGNATURES ON FOLLOWING
PAGES]
4
IN WITNESS WHEREOF, each of
the parties hereto has caused a counterpart of this Modification
Agreement to be duly executed and delivered as of the date first
above written.
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| BORROWER: |
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VENTAS REALTY, LIMITED PARTNERSHIP |
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By: |
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Ventas,
Inc., its General Partner |
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By: |
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/s/ T. Richard
Riney
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Name: |
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T.
Richard Riney |
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Title: |
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Executive
Vice President, Chief Administrative Officer, General Counsel and
Corporate Secretary |
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| GUARANTORS: |
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VENTAS, INC. |
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By: |
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/s/ T. Richard
Riney
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Name: |
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T.
Richard Riney |
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Title |
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Executive
Vice President, Chief Administrative Officer, General Counsel and
Corporate Secretary |
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VENTAS CAPITAL CORPORATION |
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By: |
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/s/ T. Richard
Riney
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Name: |
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T.
Richard Riney |
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Title: |
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Executive
Vice President, Chief Administrative Officer, General Counsel and
Corporate Secretary |
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VENTAS LP REALTY, L.L.C. |
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By: |
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Ventas,
Inc., its Sole Member |
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By: |
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/s/ T. Richard
Riney
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Name: |
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T.
Richard Riney |
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Title: |
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Executive
Vice President, Chief Administrative Officer, General Counsel and
Corporate Secretary |
MODIFICATION
AGREEMENT
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| VENTAS TRS, LLC |
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| By: |
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Ventas
Realty, Limited Partnership, its Sole Member |
| By: |
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Ventas,
Inc., its General Partner |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Executive
Vice President, Chief Administrative Officer, General Counsel and
Corporate Secretary |
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| VENTAS HEALTHCARE PROPERTIES, INC. |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Executive
Vice President, General Counsel and Corporate Secretary |
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| VENTAS MANAGEMENT, LLC |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Executive
Vice President, General Counsel and Corporate Secretary |
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| VENTAS FRAMINGHAM, LLC |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Executive
Vice President, General Counsel and Corporate Secretary |
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| VENTAS SUN LLC |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Executive
Vice President, General Counsel and Corporate Secretary |
MODIFICATION
AGREEMENT
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| VENTAS CAL SUN LLC |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Executive
Vice President, General Counsel and Corporate Secretary |
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| VENTAS PROVIDENT, LLC |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Executive
Vice President, General Counsel and Corporate Secretary |
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| ELDERTRUST |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Trustee
and Secretary |
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| ELDER TRUST OPERATING LIMITED PARTNERSHIP |
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| By: |
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ElderTrust,
its General Partner |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Trustee
and Secretary |
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| ET CAPITAL CORP. |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Secretary |
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| ET SUB-BERKSHIRE LIMITED PARTNERSHIP |
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| By: |
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ET
Berkshire, LLC, its General Partner |
| By: |
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ElderTrust
Operating Limited Partnership, its Sole Member |
| By: |
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ElderTrust,
its General Partner |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Trustee
and Secretary |
MODIFICATION
AGREEMENT
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| ET BERKSHIRE, LLC |
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| By: |
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ElderTrust
Operating Limited Partnership, its Sole Member |
| By: |
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ElderTrust,
its General Partner |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Trustee
and Secretary |
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| CABOT ALF, L.L.C. |
| By: |
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ElderTrust
Operating Limited |
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Partnership,
its Sole Member |
| By: |
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ElderTrust,
its General Partner |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Trustee
and Secretary |
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| CLEVELAND ALF, L.L.C. |
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| By: |
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ElderTrust
Operating Limited |
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Partnership,
its Sole Member |
| By: |
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ElderTrust,
its General Partner |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Trustee
and Secretary |
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| ET SUB-HERITAGE WOODS, L.L.C. |
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| By: |
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ElderTrust
Operating Limited Partnership, its Sole Member |
| By: |
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ElderTrust,
its General Partner |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Trustee
and Secretary |
MODIFICATION
AGREEMENT
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| ET SUB-HIGHGATE, L.P. |
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| By: |
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ET GENPAR,
L.L.C., its General Partner |
| By: |
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ElderTrust
Operating Limited |
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Partnership,
its Sole Member |
| By: |
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ElderTrust,
its General Partner |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Trustee
and Secretary |
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| ET GENPAR, L.L.C. |
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| By: |
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ElderTrust
Operating Limited |
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Partnership,
its Sole Member |
| By: |
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ElderTrust,
its General Partner |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Trustee
and Secretary |
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| ET SUB-LACEY I, L.L.C. |
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| By: |
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ElderTrust
Operating Limited Partnership, its Sole Member |
| By: |
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ElderTrust,
its General Partner |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Trustee
and Secretary |
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| ET SUB-LEHIGH LIMITED PARTNERSHIP |
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| By: |
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ET Lehigh,
LLC, its General Partner |
| By: |
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ElderTrust
Operating Limited |
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Partnership,
its Sole Member |
| By: |
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ElderTrust,
its General Partner |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Trustee
and Secretary |
MODIFICATION
AGREEMENT
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| ET LEHIGH, LLC |
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| By: |
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ElderTrust
Operating Limited |
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Partnership,
its Sole Member |
| By: |
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ElderTrust,
its General Partner |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Trustee
and Secretary |
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| ET SUB-LOPATCONG, L.L.C. |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Secretary |
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| ET SUB-PENNSBURG MANOR LIMITED PARTNERSHIP, L.L.P. |
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| By: |
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ET Pennsburg
Finance, L.L.C., its General Partner |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Secretary |
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| ET PENNSBURG FINANCE, L.L.C. |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Secretary |
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| ET SUB-PHILLIPSBURG I, L.L.C. |
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| By: |
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ElderTrust
Operating Limited |
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Partnership,
its Sole Member |
| By: |
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ElderTrust,
its General Partner |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Trustee
and Secretary |
MODIFICATION
AGREEMENT
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| ET SUB-PLEASANT VIEW, L.L.C. |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Secretary |
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| ET SUB-RITTENHOUSE LIMITED PARTNERSHIP, L.L.P. |
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| By: |
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ET GENPAR,
L.L.C., its General Partner |
| By: |
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ElderTrust
Operating Limited |
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Partnership,
its Sole Member |
| By: |
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ElderTrust,
its General Partner |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Trustee
and Secretary |
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| ET SUB-RIVERVIEW RIDGE LIMITED PARTNERSHIP, L.L.P. |
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| By: |
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ET GENPAR,
L.L.C., its General Partner |
| By: |
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ElderTrust
Operating Limited |
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Partnership,
its Sole Member |
| By: |
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ElderTrust,
its General Partner |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Trustee
and Secretary |
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| ET SUB-SANATOGA LIMITED PARTNERSHIP |
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| By: |
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ET Sanatoga,
LLC, its General Partner |
| By: |
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ElderTrust
Operating Limited |
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Partnership,
its Sole Member |
| By: |
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ElderTrust,
its General Partner |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Trustee
and Secretary |
MODIFICATION
AGREEMENT
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| ET SANATOGA, LLC |
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| By: |
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ElderTrust
Operating Limited |
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Partnership,
its Sole Member |
| By: |
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ElderTrust,
its General Partner |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Trustee
and Secretary |
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| ET SUB-SMOB, L.L.C. |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Secretary |
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| VERNON ALF, L.L.C. |
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| By: |
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ElderTrust
Operating Limited |
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Partnership,
its Sole Member |
| By: |
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ElderTrust,
its General Partner |
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| By: |
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/s/ T. Richard
Riney
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| Name: |
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T.
Richard Riney |
| Title: |
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Trustee
and Secretary |
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| ET SUB-WILLOWBROOK LIMITED PARTNERSHIP, L.L.P. |
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| By: |
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ET GENPAR,
L.L.C., its General Partner |
| By: |
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ElderTrust
Operating Limited |
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Partnership,
its Sole Member |
| By: |
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ElderTrust,
its General Partner |
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