Exhibit 10.1
Published CUSIP Number: $705,729,000 CREDIT AGREEMENT Dated as of October 5, 2006 among HEALTH CARE PROPERTY INVESTORS, INC., as Borrower THE GUARANTORS PARTY HERETO FROM TIME TO TIME, THE LENDERS PARTY HERETO FROM TIME TO TIME and BANK OF AMERICA, N.A., as Administrative Agent, and BANC OF AMERICA SECURITIES LLC and UBS SECURITIES LLC, as Joint Lead Arrangers and BANC OF AMERICA SECURITIES LLC, UBS SECURITIES LLC, J.P. MORGAN SECURITIES INC. and BARCLAYS CAPITAL, as Joint Bookrunners UBS SECURITIES LLC, as Syndication Agent JPMORGAN CHASE BANK, N.A., BARCLAYS BANK PLC, and WACHOVIA BANK, NATIONAL ASSOCIATION, as Co-Documentation Agents Cahill Gordon & Reindel LLP 80 Pine Street New York, New York 10005
TABLE OF CONTENTS
Section Page
ARTICLE I 1.01 1.02 1.03 1.04 1.05 ARTICLE II 2.01 2.02 2.03 2.04 2.05 2.06 2.07 2.08 2.09 2.10 2.11 2.12 2.13 2.14 2.15 2.16 ARTICLE III 3.01 3.02 3.03 3.04 3.05 3.06 3.07
DEFINITIONS AND ACCOUNTING TERMS Defined Terms Other Interpretive Provisions Accounting Terms Rounding Times of Day THE COMMITMENTS AND CREDIT EXTENSIONS Loans Borrowings, Conversions and Continuations of Loans [Intentionally Omitted] [Intentionally Omitted] [Intentionally Omitted] Prepayments Termination or Reduction of Commitments Repayment Interest Fees Computation of Interest and Fees Evidence of Debt Payments Generally; Administrative Agent’s Clawback Sharing of Payments by Lenders [Intentionally Omitted] [Intentionally Omitted] TAXES, YIELD PROTECTION AND ILLEGALITY Taxes Illegality Inability to Determine Rates Increased Costs; Reserves on Eurodollar Rate Loans Compensation for Losses Mitigation Obligations; Replacement of Lenders Survival
1 1 19 20 20 20 21 21 21 22 22 22 22 23 23 23 24 24 24 25 26 27 27 27 27 29 29 29 30 31 31 32 32 34 34 35 35 35 35 36 36 36
ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS 4.01 Conditions of Initial Credit Extension ARTICLE V 5.01 5.02 5.03 5.04 5.05 5.06 5.07 5.08 REPRESENTATIONS AND WARRANTIES Existence, Qualification and Power; Compliance with Laws Authorization; No Contravention Governmental Authorization; Other Consents Binding Effect Financial Statements; No Material Adverse Effect Litigation No Default Ownership of Property; Liens; Leases
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5.09 5.10 5.11 5.12 5.13 5.14 5.15 5.16 5.17 5.18 5.19 5.20 ARTICLE VI 6.01 6.02 6.03 6.04 6.05 6.06 6.07 6.08 6.09 6.10 6.11 6.12 6.13 6.14 ARTICLE VII 7.01 7.02 7.03 7.04 7.05 7.06 7.07 7.08 7.09 7.10 ARTICLE VIII 8.01 8.02 8.03 ARTICLE IX 9.01 9.02 9.03
Environmental Compliance Insurance Taxes ERISA Compliance Subsidiaries; Equity Interests; Subsidiary Guarantors Margin Regulations; Investment Company Act; REIT Status Disclosure Compliance with Laws Intellectual Property; Licenses, Etc. Use of Proceeds Taxpayer Identification Number Acquisition Documents AFFIRMATIVE COVENANTS Financial Statements Certificates; Other Information Notices Payment of Obligations Preservation of Existence, Etc. Maintenance of Properties Maintenance of Insurance Compliance with Laws Books and Records Inspection Rights Use of Proceeds REIT Status New Subsidiaries; Guarantees Employee Benefits NEGATIVE COVENANTS Liens Investments Indebtedness Fundamental Changes Dispositions Restricted Payments Change in Nature of Business Transactions with Affiliates Burdensome Agreements Financial Covenants EVENTS OF DEFAULT AND REMEDIES Events of Default Remedies Upon Event of Default Application of Funds ADMINISTRATIVE AGENT Appointment and Authority Rights as a Lender Exculpatory Provisions
37 37 37 37 38 38 39 39 39 39 40 40 40 40 41 42 43 43 44 44 44 44 44 45 45 45 45 46 46 46 47 47 47 47 47 48 48 48 49 49 51 51 52 52 52 52
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Section
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9.04 9.05 9.06 9.07 9.08 9.09 ARTICLE X 10.01 10.02 10.03 10.04 10.05 10.06 10.07 10.08 10.09 10.10 10.11 10.12 10.13 10.14 10.15 10.16 10.17 10.18 ARTICLE XI 11.01 11.02 11.03 11.04 11.05 11.06 11.07 SCHEDULES 2.01 5.13 10.02
Reliance by Administrative Agent Delegation of Duties Resignation of Administrative Agent Non-Reliance on Administrative Agent and Other Lenders No Other Duties, Etc. Administrative Agent May File Proofs of Claim MISCELLANEOUS Amendments, Etc. Notices; Effectiveness; Electronic Communication No Waiver; Cumulative Remedies Expenses; Indemnity; Damage Waiver Payments Set Aside Successors and Assigns Treatment of Certain Information; Confidentiality Right of Setoff Interest Rate Limitation Counterparts; Integration; Effectiveness Survival of Representations and Warranties Severability Replacement of Lenders Governing Law; Jurisdiction; Etc. Waiver of Jury Trial No Advisory or Fiduciary Responsibility USA Patriot Act Notice Delivery of Signature Page GUARANTY The Guaranty Obligations Unconditional Reinstatement Certain Additional Waivers Remedies Rights of Contribution Guarantee of Payment; Continuing Guarantee
53 53 53 54 54 54 55 55 56 57 57 59 59 62 63 63 64 64 64 64 65 66 66 67 67 67 67 67 68 69 69 69 69
Commitments and Applicable Percentages Subsidiaries; Other Equity Investments Administrative Agent’s Office; Certain Addresses for Notices
EXHIBITS Form of A Bridge Loan Notice B Note C Compliance Certificate D Assignment and Assumption E [Reserved] F Opinion Matters G Joinder Agreement
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CREDIT AGREEMENT This CREDIT AGREEMENT, dated as of October 5, 2006 (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), among HEALTH CARE PROPERTY INVESTORS, INC., a Maryland corporation (the “Borrower”), the Subsidiary Guarantors party hereto from time to time (such term and each other capitalized term used but not defined herein having the meaning given to it in Article I), the lending institutions party hereto from time to time (each, a “Lender” and collectively, the “Lenders”), BANK OF AMERICA, N.A., as Administrative Agent, BANC OF AMERICA SECURITIES LLC, as Joint Lead Arranger and Joint Bookrunner, UBS SECURITIES LLC, as Joint Lead Arranger, Joint Bookrunner and Syndication Agent, J.P. MORGAN SECURITIES INC., as Joint Bookrunner, BARCLAYS CAPITAL, as Joint Bookrunner, JPMORGAN CHASE BANK, N.A., as Co-Documentation Agent, BARCLAYS BANK PLC, as Co-Documentation Agent, and WACHOVIA BANK, NATIONAL ASSOCIATION, as Co-Documentation Agent. WHEREAS, the Borrower has entered into an agreement and plan of merger (the “CNL Merger Agreement”), dated as of May 1, 2006, with CNL Retirement Properties, Inc., a Maryland corporation (“CNL”), and Ocean Acquisition 1, Inc., a Maryland corporation and a wholly owned subsidiary of the Borrower (the “CNL Merger Sub”), pursuant to which at the closing of the transactions contemplated by the CNL Merger Agreement, CNL shall merge with and into the CNL Merger Sub, and the CNL Merger Sub shall be the surviving entity, and the Borrower (or an affiliate of the Borrower) shall acquire all outstanding equity interests of CNL (the “CNL Merger”). WHEREAS, the Borrower has entered into an agreement and plan of merger (the “Advisor Merger Agreement”), dated as of May 1, 2006, with CNL Retirement Corp., a Florida corporation (the “Advisor”), and Ocean Acquisition 2 LLC, a Florida limited liability company and a wholly owned subsidiary of the Borrower (the “Advisor Purchaser”), pursuant to which at the closing of the transactions contemplated by the Advisor Merger Agreement, the Advisor shall merge with and into the Advisor Purchaser (the “Advisor Merger”) and the Advisor Purchaser shall be the surviving entity. WHEREAS, the Borrower has requested that the Lenders provide a bridge loan facility, and the Lenders are willing to do so on the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows: ARTICLE I DEFINITIONS AND ACCOUNTING TERMS 1.01 Defined Terms.
As used in this Agreement, the following terms shall have the meanings set forth below: “Acquired Business” means CNL and the Advisor and their Subsidiaries. “Acquisition Agreements” means, collectively, the CNL Merger Agreement and the Advisor Merger Agreement. “Acquisition Documents” shall mean the collective reference to the CNL Merger Agreement, the Advisor Merger Agreement and each amendment or supplement thereto and each other agreement entered into in connection therewith relating to the Acquisitions.
“Acquisitions” means, collectively, the CNL Merger and the Advisor Merger. “Administrative Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent. “Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account as the Administrative Agent may from time to time notify to the Borrower and the Lenders. “Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent. “Advisor” has the meaning specified in the second recital to this Agreement. “Advisor Merger” has the meaning specified in the second recital to this Agreement. “Advisor Merger Agreement” has the meaning specified in the second recital to this Agreement. “Advisor Purchaser” has the meaning specified in the second recital to this Agreement. “Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. “Agents” means the Administrative Agent, the Arrangers, the Bookrunners, the Syndication Agent and the Documentation Agents. “Aggregate Commitments” means the Commitments of all Lenders. The Aggregate Commitments on the Closing Date are $705,729,000. “Agreement” means this Credit Agreement. “Applicable Percentage” means, for each Lender at any time, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of such Lender’s Commitment at such time and the denominator of which is the amount of the Aggregate Commitments at such time. The initial Applicable Percentages of each Lender are set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable. “Applicable Rate” means, for Loans pursuant to this Agreement, from time to time, the number of basis points per annum set forth in the following table based upon the Debt Rating as set forth below:
Pricing Level Applicable Rate for Eurodollar Rate Loans Applicable Rate for Base Rate Loans
Debt Ratings
1 2 3 4
A- from S&P/ A3 from Moody’s BBB+ from S&P/ Baa1 from Moody’s BBB from S&P/ Baa2 from Moody’s BBB- from S&P/ Baa3 from Moody’s
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