AMENDMENT NO. 1 Dated as of March 27, 2012 to CREDIT AGREEMENT Dated as of March 11, 2011

EX-10.1 2 a12-8280_1ex10d1.htm EX-10.1

Exhibit 10.1

EXECUTION COPY

AMENDMENT NO. 1

Dated as of March 27, 2012

CREDIT AGREEMENT

Dated as of March 11, 2011

THIS AMENDMENT NO. 1 (this “Amendment”) is made as of March 27, 2012 by and among HCP, Inc., a Maryland corporation (the “Borrower”), the financial institutions listed on the signature pages hereof and Bank of America, N.A., as Administrative Agent (the “Administrative Agent’), under that certain Credit Agreement dated as of March 11, 2011 by and among the Borrower, the Lenders and the Administrative Agent (as amended, restated, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement”). Capitalized terms used herein and not otherwise defined herein shall have the respective meanings given to them in the Credit Agreement.

WHEREAS, the Borrower has requested that the Lenders and the Administrative Agent agree to an amendment to the Credit Agreement; and

WHEREAS, the Borrower, the Lenders party hereto and the Administrative Agent have so agreed on the terms and conditions set forth herein;

NOW, THEREFORE, in consideration of the premises set forth above, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrower, the Lenders party hereto and the Administrative Agent hereby agree to enter into this Amendment.

1. Amendment to the Credit Agreement. Effective as of the Amendment No. 1 Effective Date (as defined below), the parties hereto agree that the Credit Agreement is hereby amended as follows:

(a) The definition of “Applicable Rate” appearing in Section 1.01 of the Credit Agreement is amended to delete the pricing grid appearing therein and to replace such pricing grid with the following:

		Revolving Loans
Pricing Level	Debt Ratings	Applicable Rate for Eurocurrency Rate Loans and Letter of Credit Fees	Applicable Rate for Base Rate Loans
1	>A- / >A3	100 bps	0 bps

2	>BBB+ / >Baa1	107.5 bps	7.5 bps

3	>BBB / >Baa2	122.5 bps	22.5 bps

4	>BBB- / >Baa3	147.5 bps	32.5 bps

5	<BBB- / <Baa3 or non-rated	185 bps	85 bps

(b) The definition of “Consolidated Total Asset Value” appearing in Section 1.01 of the Credit Agreement is amended to add the proviso “; provided that, for purposes of calculating the Leverage Ratio, Consolidated Total Asset Value shall not include the aggregate amount of unrestricted cash and cash equivalents netted against Indebtedness of the Borrower and its Subsidiaries maturing in the immediately succeeding 24 months” to the end thereof.

(c) The definition of “Facility Fee Rate” appearing in Section 1.01 of the Credit Agreement is amended to delete the pricing grid appearing therein and to replace such pricing grid with the following:

Pricing Level		Facility Fee
1		15 bps
2		17.5 bps
3		22.5 bps
4		32.5 bps
5		45 bps

(d) The definition of “Revolving Maturity Date” appearing in Section 1.01 of the Credit Agreement is amended to delete the date “March 11, 2015” appearing therein and to replace such date with the date “March 11, 2016”.

(e) Section 1.01 of the Credit Agreement is amended to add the following definition thereto in the appropriate alphabetical order:

“Amendment No. 1 Effective Date” means March 27, 2012.

(f) Clause (d) of Section 2.15 of the Credit Agreement is amended to delete the percentage “0.30%” appearing therein and to replace such percentage with the percentage “0.15%”.

(g) Clause (e) of Section 7.10 of the Credit Agreement is amended to (i) delete the amount “$6,961,879,000” appearing therein and to replace such amount with the amount “$8,011,509,000” and (ii) delete the reference to “Closing Date” appearing therein and to replace such reference with “Amendment No. 1 Effective Date”.

(h) Schedule 2.01 to the Credit Agreement is hereby replaced in its entirety with the Schedule 2.01 attached hereto.

(i) Schedule 2.02 to the Credit Agreement is hereby replaced in its entirety with the Schedule 2.02 attached hereto.

2. Departing Lenders and New Lenders. The parties hereto hereby acknowledge and agree that:

(a) Each of Taiwan Business Bank, Los Angeles Branch, State Bank of India, First Commercial Bank, Los Angeles Branch, Bank of Taiwan, Los Angeles Branch, Cathay United Bank, Ltd., The Bank of East Asia, Limited, Los Angeles Branch, Hua Nan Commercial Bank, Ltd., New York Agency, Taipei Fubon Commercial Bank Co., Ltd., Mega International Commercial Bank Co., Ltd., Los Angeles Branch and Mega International Commercial Bank Co., Ltd., New York Branch (each a “Departing Lender” and collectively, the “Departing Lenders”) is entering into this Amendment solely to evidence its exit from the Credit Agreement and shall have absolutely no obligation hereunder. Upon the effectiveness hereof and the payment described in Section 2(c)(iii), each Departing Lender shall no longer (i) constitute a “Lender” for all purposes under the Loan Documents, (ii) be a party to the Credit Agreement or (iii) have any obligations under any of the Loan Documents, in each case, without further action required on the part of any Person;

(b) Each of Royal Bank of Canada, City National Bank, Comerica Bank and Taiwan Cooperative Bank, Los Angeles Branch (each a “New Lender” and collectively, the “New Lenders”) is entering into this Amendment and the Credit Agreement as a new Lender thereunder. Upon the effectiveness hereof and the execution hereof by each New Lender, such New Lender shall constitute a “Lender” for all purposes under the Loan Documents; and

(c) upon the effectiveness hereof: (i) the Administrative Agent shall be entitled to make or take such reallocations, sales, assignments or other relevant actions in respect of each Lender’s Revolving Loans, participations in Letters of Credit, participations in Swingline Loans and Alternative Currency Loan Credit Exposure, if any, under the Credit Agreement as it deems necessary to reflect the rights and obligations of the Lenders (including the Departing Lenders and the New Lenders) under the Credit Agreement as amended hereby, (ii) each Departing Lender’s “Revolving Commitment” under the Credit Agreement shall be terminated, (iii) each Departing Lender shall have received payment in full in immediately available funds of all of its outstanding Revolving Loans, funded participations in Letters of Credit, funded participations in Swingline Loans and Alternative Currency Loan Credit Exposure, all interest thereon and all other amounts payable to it under the Credit Agreement, (iv) each Departing Lender shall not be a Lender hereunder as evidenced by its execution and delivery of its signature page hereto and (v) the defined term “Lenders” in the Credit Agreement shall exclude the Departing Lenders; provided, however, that, as described in Section 3.07 of the Credit Agreement, each Departing Lender shall continue to have the benefit of Article III of the Credit Agreement. The Borrower hereby agrees to compensate each Lender (including each Departing Lender) for any and all losses, costs and expenses incurred by such Lender in connection with the sale and assignment of any Eurocurrency Rate Loans and the reallocation described in clause (i) above, in each case on the terms and in the manner set forth in Section 3.05 of the Credit Agreement.

3. Conditions of Effectiveness. The effectiveness of this Amendment (the “Amendment No. 1 Effective Date”) is subject to the conditions precedent that:

(a) the Administrative Agent shall have received counterparts of this Amendment duly executed by the Borrower, the Lenders (including the Departing Lenders), the New Lenders and the Administrative Agent;

(b) the Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer authorized to act as a Responsible Officer in connection with this Amendment and the Loan Documents;

(c) the Administrative Agent shall have received such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in its state of organization and in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;

(d) the Administrative Agent shall have received favorable opinions of Skadden, Arps, Slate Meagher & Flom LLP and Ballard Spahr LLP, counsels to the Borrower, addressed to the Administrative Agent and each Lender;

(e) the Administrative Agent shall have received a certificate signed by a Responsible Officer certifying (A) that the conditions specified in Section 4.02 of the Credit Agreement have been satisfied; (B) the current Debt Ratings; and (C) that, as of the date of the last financial statements delivered pursuant to the Credit Agreement, the Borrower was in pro forma compliance with the financial covenants contained in Section 7.10 of the Credit Agreement;

(f) the Administrative Agent shall have received payment of all fees and expenses (including fees and expenses of counsel for the Administrative Agent) due and payable in connection with this Amendment; and

(g) each Departing Lender shall have received substantially concurrently with the Amendment No. 1 Effective Date the payment owing to it as described in Section 2(c)(iii) above.

4. Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as follows:

(a) This Amendment and the Credit Agreement as modified hereby constitute legal, valid and binding obligations of the Borrower and are enforceable against the Borrower in accordance with their terms.

(b) As of the date hereof and after giving effect to the terms of this Amendment, (i) no Default has occurred and is continuing, and (ii) the representations and warranties of the Borrower set forth in Article V of the Credit Agreement or in any other Loan Document are true and correct in all material respects on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement are deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement.

5. Reference to and Effect on the Credit Agreement.

(a) Upon the effectiveness hereof, each reference to the Credit Agreement in the Credit Agreement or any other Loan Document shall mean and be a reference to the Credit Agreement as amended hereby.

(b) Each Loan Document and all other documents, instruments and agreements executed and/or delivered in connection therewith shall remain in full force and effect and are hereby ratified and confirmed. Upon the effectiveness hereof, this Amendment shall for all purposes constitute a Loan Document.

(c) Except with respect to the subject matter hereof, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Administrative Agent or the Lenders, nor constitute a waiver of any provision of the Credit Agreement, the other Loan Documents or any other documents, instruments and agreements executed and/or delivered in connection therewith.

6. Governing Law. This Amendment shall be construed in accordance with and governed by the law of the State of New York.

7. Headings. Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.

8. Counterparts. This Amendment may be executed by one or more of the parties hereto on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Signatures delivered by facsimile or PDF shall have the same force and effect as manual signatures delivered in person.

[Signature Pages Follow]

IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and year first above written.

HCP, INC.,
as the Borrower


By:	/s/ Timothy M. Schoen
	Name:	Timothy M. Schoen
	Title:	Executive Vice President — Chief Financial Officer