As filed with the Securities and Exchange Commission on February 8, 1995
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): FEBRUARY 2, 1995
HEALTH CARE PROPERTY INVESTORS, INC.
(Exact name of registrant as specified in its charter)
MARYLAND 1-8895 33-0091377
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File No.) Identification No.)
10990 WILSHIRE BOULEVARD, SUITE 1200
LOS ANGELES, CALIFORNIA 90024
(Address of principal executive offices) (Zip Code)
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Registrant's telephone number, including area code (310) 473-1990
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An Exhibit Index is on page 4 of this report.
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Item 5. Other Events
On July 29, 1993, Health Care Property Investors, Inc. (the "Company")
filed with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3 (File No. 33-66676) (the "Registration
Statement") relating to the registration under the Securities Act of 1933,
as amended (the "Securities Act"), of an initial public offering price of up
to $200,000,000 of common stock, par value $1.00 per share (the "Common
Stock"), preferred stock, par value $1.00 per share, and unsecured debt
securities of the Company, which Registration Statement was declared
effective on August 19, 1993.
On February 2, 1995, the Company entered into a purchase agreement (the
"Purchase Agreement") with Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Alex. Brown & Sons Incorporated and Dean Witter
Reynolds Inc. (collectively, the "Underwriters") pursuant to which the
Company agreed to issue and sell and the Underwriters agreed, subject to
certain conditions, to purchase 1,500,000 shares of Common Stock of the
Company at a purchase price to the Underwriters of $27.48 per share and to
the public of $29.00 per share. The gross public offering price will be
$43,500,000 and the proceeds to the Company will be $41,220,000 (before
deducting expenses payable by the Company estimated at $300,000). The
Company also granted to the Underwriters an option to purchase all or any
part of up to an additional 225,000 shares solely to cover over-allotments,
if any. The Underwriters notified the Company on February 6, 1995 that they
will exercise the over-allotment option in full, which will increase the gross
public offering price to $50,025,000 and the proceeds to the Company to
$47,403,000 (before deducting expenses). The Purchase Agreement is attached
hereto as Exhibit 1.5. In addition, a Statement re: Computation of Ratio of
Earnings to Fixed Charges is attached hereto as Exhibit 12.2.
Item 7. Financial Statements and Exhibits
(c) Exhibits. The following Exhibits are filed as part of this Report
and as Exhibits to the Registration Statement (File No. 33-66676).
1.5 Purchase Agreement dated as of February 2, 1995 among the Company,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Alex. Brown & Sons Incorporated and Dean Witter Reynolds Inc.
10.37 Revolving Credit Agreement dated as of March 31, 1994 among the
Company, The Bank of New York, Wells Fargo Bank, Kredietbank N.V., The Long-
Term Credit Bank of Japan, Ltd., NationsBank of Texas, N.A., Bank of Hawaii
and Sanwa Bank California.
12.2 Statement re: Computation of Ratio of Earnings to Fixed Charges
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
HEALTH CARE PROPERTY INVESTORS, INC.
Date: February 8, 1995 By: /s/JAMES G. REYNOLDS
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Name: James G. Reynolds
Title: Executive Vice President and
Chief Financial Officer
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EXHIBIT INDEX
Exhibit Page No.
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1.5 Purchase Agreement dated as of February 2, 1995
among the Company, Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Alex.
Brown & Sons Incorporated and Dean Witter Reynolds.
10.37 Revolving Credit Agreement dated as of March 31, 1994
among the Company, The Bank of New York, Wells Fargo
Bank, Kredietbank N.V., The Long-Term Credit Bank of
Japan, Ltd., NationsBank of Texas, N.A.,Bank of Hawaii
and Sanwa Bank California.
12.2 Statement re: Computation of Ratio of Earnings to
Fixed Charges
<PAGE>
EXHIBIT 1.5
1,500,000 Shares
HEALTH CARE PROPERTY INVESTORS, INC.
(a Maryland corporation)
Common Stock
(Par Value $1.00 Per Share)
PURCHASE AGREEMENT
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February 2, 1995
MERRILL LYNCH & CO.
Merrill Lynch, Pierce Fenner & Smith
Incorporated
ALEX. BROWN & SONS INCORPORATED
DEAN WITTER REYNOLDS INC.
c/o MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
10900 Wilshire Boulevard
Los Angeles, California 90024
Dear Sirs:
Health Care Property Investors, Inc., a Maryland corporation (the
"Company"), confirms its agreement with Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch"), Alex. Brown & Sons Incorporated and Dean Witter
Reynolds Inc. (collectively, the "Underwriters"), with respect to the sale by
the Company and the purchase by the Underwriters, acting severally and not
jointly, of the respective numbers of shares of Common Stock, par value $1.00
per share, of the Company ("Common Stock") set forth in Schedule A hereto, and
with respect to the grant by the Company to the Underwriters, acting severally
and not jointly, of the option described in Section 2(b) hereof to purchase all
or any part of 225,000 additional shares of Common Stock to cover over-
allotments. The aforesaid 1,500,000 shares of Common Stock (the "Initial
Securities") to be purchased by the Underwriters and all or any part of the
shares of Common Stock subject to the option described in Section 2(b) hereof
(the "Option Securities") are collectively hereinafter called the "Securities".
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-66676) and a related
preliminary prospectus for the registration under the Securities Act of 1933, as
amended (the "1933 Act") of Common Stock, including the Securities, preferred
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stock, par value $1.00 per share, and debt securities (collectively, the
"Registered Securities"), which registration statement has been declared
effective by the Commission and copies of which have heretofore been
delivered to you. Such Registration Statement, in the form in which it was
declared effective, as amended through the date hereof, including all
documents incorporated or deemed to be incorporated by reference therein
through the date hereof, is hereinafter referred to as the "Registration
Statement". The Company proposes to file with the Commission pursuant to
Rule 424(b) of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") the Prospectus Supplement (as defined in Section
3(i) hereof) relating to the Securities and the prospectus dated February 2,
1995 (the "Base Prospectus") relating to the Registered Securities, and has
previously advised you of all further information (financial and other) with
respect to the Company set forth therein. The Base Prospectus together with
the Prospectus Supplement, in their respective forms on the date hereof
(being the forms in which they are to be filed with the Commission pursuant
to Rule 424(b) of the 1933 Act Regulations), including all documents
incorporated or deemed to be incorporated by reference therein through the
date hereof, are hereinafter referred to as the "Prospectus", except that if
any revised prospectus or prospectus supplement shall be provided to the
Underwriters by the Company for use in connection with the offering and sale of
the Securities which differs from the Prospectus (whether or not such revised
prospectus or prospectus supplement is required to be filed by the Company
pursuant to Rule 424(b) of the 1933 Act Regulations), the term "Prospectus"
shall refer to such revised prospectus or prospectus supplement, as the case may
be, from and after the time it is first provided to the Underwriters for such
use. Unless the context otherwise requires, all references in this Agreement to
documents, financial statements and schedules and other information which is
"contained", "included", "stated", "described in" or "referred to" in the
Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such documents, financial
statements and schedules and other information which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement or the Prospectus shall be deemed to
mean and include the filing of any document under the Securities Exchange Act of
1934 (the "1934 Act") after the date of this Agreement which is or is deemed to
be incorporated by reference in the Registration Statement or the Prospectus, as
the case may be.
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Underwriters deem advisable after this
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Agreement has been executed and delivered.
Section 1. Representations and Warranties. (a) The Company represents and
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warrants to each Underwriter as of the date hereof (such date being hereinafter
referred to as the "Representation Date") as follows:
(i) The Company meets the requirements for use of Form S-3 under
the 1933 Act and the 1933 Act Regulations. The Registration Statement and
the Base Prospectus, at the time the Registration Statement became
effective and as of the Representation Date, complied and comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations (including Rule 415(a) of the 1933 Act Regulations), and did
not and as of the Representation Date do not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus, at the Representation Date (unless the term "Prospectus" refers
to a prospectus which has been provided to the Underwriters by the Company
for use in connection with the offering of the Securities which differs
from the Prospectus filed with the Commission pursuant to Rule 424(b) of
the 1933 Act Regulations, in which case at the time it is first provided to
the Underwriters for such use) and at the Closing Time referred to in
Section 2 hereof, does not and will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the representations and
warranties in this subsection (i) shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in reliance
upon and in conformity with information furnished to the Company in writing
by any Underwriter through Merrill Lynch expressly for use in the
Registration Statement or the Prospectus or to that part of the
Registration Statement that constitutes the Statement of Eligibility and
Qualification of the Trustee under the Trust Indenture Act of 1939, as
amended (the "1939 Act") filed as an exhibit to the Registration Statement
(the "Form T-1").
(ii) The documents incorporated or deemed to be incorporated by
reference into the Prospectus pursuant to Item 12 of Form S-3 under the
1933 Act, at the time they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the requirements of
the 1934 Act and the rules and regulations of the Commission thereunder
(the "1934 Act Regulations"), and, when read together and with the other
information in the Prospectus, at the respective times the Registration
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Statement and any amendments thereto became effective, at the
Representation Date and at Closing Time, did not, do not and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(iii) The accountants who certified the financial statements and
supporting schedules included or incorporated by reference in the
Registration Statement are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(iv) The financial statements and any supporting schedules of the
Company and its consolidated subsidiaries included or incorporated by
reference in the Registration Statement and the Prospectus present fairly
the financial position of the Company and its consolidated subsidiaries as
at the dates indicated and the results of their operations for the periods
specified; and, except as otherwise stated in the Registration Statement,
said financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis; and the
supporting schedules included or incorporated by reference in the
Registration Statement present fairly the information required to be stated
therein; and the Company's ratios of earnings to fixed charges included in
the Base Prospectus under the caption "Ratio of Earnings to Fixed Charges"
and in Exhibit 12 to the Registration Statement have been calculated in
compliance with Item 503(d) of Regulation S-K of the Commission.
(v) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, (B) there have
been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its subsidiaries considered as
one enterprise, and (C) except for regular quarterly dividends on the
Common Stock, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
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(vi) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Maryland
with corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus; the Company is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify and be in good standing
would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise; and the Company
is in substantial compliance with all laws, ordinances and regulations of
each state in which it owns properties that are material to the properties
and business of the Company and its subsidiaries considered as one
enterprise in such state.
(vii) Each subsidiary of the Company which is a significant
subsidiary (each, a "Significant Subsidiary") as defined in Rule 405 of
Regulation C of the 1933 Act Regulations has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to
so qualify would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise;
and all of the issued and outstanding capital stock of each such subsidiary
has been duly authorized and validly issued, is fully paid and non-
assessable and, except for directors' qualifying shares, is owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
(viii) The Company has at all times operated in such manner as to
qualify as a "real estate investment trust" under the Internal Revenue Code
of 1986, as amended (the "Code"), and intends to continue to operate in
such manner.
(ix) The authorized capital stock of the Company is as set forth in
the Prospectus under "Capitalization" (except for subsequent issuances, if
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any, pursuant to reservations, agreements or employee benefit plans
referred to in the Prospectus); the shares of issued Common Stock have
been duly authorized and validly issued and are fully paid and
non-assessable; the Securities have been duly authorized for issuance
and sale to the Underwriters pursuant to this Agreement and, when issued
and delivered by the Company pursuant to this Agreement against payment
of the consideration set forth herein, will be validly issued and fully
paid and non-assessable; the Common Stock conforms to all statements
relating thereto contained in the Prospectus; the issuance of the
Securities is not subject to preemptive rights; and, after giving effect to
the sale of the Securities and the sale of any other of the Registered
Securities to be issued prior to the delivery of the Securities, the
aggregate amount of Registered Securities which have been issued and sold
by the Company will not exceed the aggregate amount of theretofore unsold
Registered Securities.
(x) Neither the Company nor any of its subsidiaries is in violation
of its charter or by-laws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which the Company or any of its subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or assets of the
Company or any of its subsidiaries is subject, which default might result
in a material adverse change in the condition, financial or otherwise, or
in the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise; and the execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated herein have been duly authorized by all necessary corporate
action and will not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation of
the provisions of the charter or by-laws of the Company or any applicable
law, administrative regulation or administrative or court order or decree.
(xi) There is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, now pending, or, to
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to the knowledge of the Company, threatened, against or affecting the
Company or any of its subsidiaries, which is required to be disclosed in
the Prospectus (other than as disclosed therein), or which might result
in any material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, or which
might materially and adversely affect the properties or assets thereof
or which might materially and adversely affect the consummation of this
Agreement; all pending legal or governmental proceedings to which the
Company or any of its subsidiaries is a party or of which any of their
respective property or assets is the subject which are not described in
the Prospectus, including ordinary routine litigation incidental to the
business, are, considered in the aggregate, not material; and there are
no contracts or documents of the Company or any of its subsidiaries
which are required to be filed as exhibits to the Registration Statement by
the 1933 Act or by the 1933 Act Regulations which have not been so filed.
(xii) No authorization, approval, order, decree or consent of any
court or governmental authority or agency is necessary in connection with
the offering, issuance or sale of the Securities hereunder, except such as
may be required under the 1933 Act or the 1933 Act Regulations or state
securities laws.
(xiii) This Agreement has been duly authorized, executed and
delivered by the Company and, upon execution and delivery by the
Underwriters, will be a valid and legally binding agreement of the Company.
(xiv) The Company and its subsidiaries have good title to all real
property or interests in real property described in the Prospectus as being
owned by it or any of them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or
such as do not materially adversely affect the value of such property and
interests and do not interfere with the use made and proposed to be made of
such property and interests by the Company and its subsidiaries; the
Company and its subsidiaries have obtained satisfactory confirmations
(consisting of policies of title insurance or commitments or binders
therefor or opinions of counsel based upon the examination of abstracts)
confirming, except as otherwise described in the Prospectus, (A) that the
Company and its subsidiaries have the foregoing title to such real property
and interests in real property, and (B) that the instruments securing the
Company's and its subsidiaries' real estate mortgage loans create valid
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liens upon the real properties described in such instruments enjoying
the priorities intended, subject only to exceptions to title which do
not materially adversely affect the value of such real properties and
interests in relation to the Company and its subsidiaries considered as
one enterprise; and all leases to which the Company is a lessee relating
to real property are valid and binding and no default exists or is
continuing thereunder, and the Company enjoys peaceful and undisturbed
possession under all such leases to which it is a party as lessee.
(xv) The Company is not required to be registered under the
Investment Company Act of 1940, as amended (the "1940 Act").
(xvi) The Company has complied with, and is and will be in
compliance with, the provisions of that certain Florida act relating to
disclosure of doing business with Cuba, codified as Section 517.075 of the
Florida statutes, and the rules and regulations thereunder (collectively,
the "Cuba Act") or is exempt therefrom.
(b) Any certificate signed by any officer of the Company and delivered
to the Underwriters or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
Section 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
$27.48 per share, the number of Initial Securities set forth in Schedule A
hereto opposite the name of such Underwriter, plus any additional number of
Securities which such Underwriter may become obligated to purchase pursuant to
the provisions of Section 10 hereof.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company hereby grants an option to the Underwriters, severally and not jointly,
to purchase up to an additional 225,000 shares of Common Stock at the price per
share set forth in paragraph (a) above. The option hereby granted will expire
30 days after the Representation Date, and may be exercised in whole or in part
from time to time only for the purpose of covering over-allotments which may be
made in connection with the offering and distribution of the Initial Securities
upon notice by the Underwriters to the Company setting forth the number of
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Option Securities as to which the Underwriters are then exercising the option
and the time, date and place of payment and delivery for such Option
Securities. Any such time and date of delivery (a "Date of Delivery") shall
be determined by the Underwriters, but shall not be later than seven full
business days after the exercise of said option, nor in any event prior to
Closing Time, as hereinafter defined, unless otherwise agreed upon by the
Underwriters and the Company. If the option is exercised as to all or any
portion of the Option Securities, each of the Underwriters, acting severally and
not jointly, will purchase that proportion of the total number of Option
Securities then being purchased which the number of Initial Securities set forth
in Schedule A opposite the name of such Underwriter bears to the total number of
Initial Securities, subject in each case to such adjustments as the Underwriters
in their discretion shall make to eliminate any sales or purchases of fractional
Securities.
(c) Payment of the purchase price for, and delivery of certificates
for, the Initial Securities shall be made at the office of Brown & Wood, 10900
Wilshire Boulevard, Los Angeles, California, or at such other place as shall be
agreed upon by the Underwriters and the Company, at 8:00 A.M., Los Angeles time,
on February 9, 1995 (unless postponed in accordance with the provisions of
Section 10 hereof), or such other time not later than ten business days after
such date as shall be agreed upon by the Underwriters and the Company (such time
and date of payment and delivery being herein called "Closing Time"). In
addition, in the event that any or all of the Option Securities are purchased by
the Underwriters, payment of the purchase price for and delivery of certificates
for such Option Securities shall be made at the above-mentioned office of Brown
& Wood, or at such other place as shall be mutually agreed upon by the
Underwriters and the Company, on each Date of Delivery as specified in the
notice from the Underwriters to the Company. Payment shall be made to the
Company by certified or official bank check or checks drawn in Los Angeles
Clearing House funds or similar next day funds payable to the order of the
Company, against delivery to the Underwriters of certificates for the Securities
to be purchased by them. Certificates for the Initial Securities and the Option
Securities shall be in such denominations and registered in such names as the
Underwriters may request in writing at least two business days before Closing
Time or the relevant Date of Delivery, as the case may be. It is understood
that each Underwriter other than Merrill Lynch has authorized Merrill Lynch, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Securities which it has agreed to purchase. Merrill
Lynch, individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the Securities
to be purchased by any Underwriter whose check has not been received by Closing
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Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder. The
certificates for the Initial Securities and the Option Securities, if any,
will be made available for examination and packaging by the Underwriters not
later than 10:00 A.M. on the last business day prior to Closing Time or the
relevant Date of Delivery, as the case may be.
Section 3. Covenants of the Company. The Company covenants with
------------------------
each Underwriter as follows:
(a) The Company will notify the Underwriters immediately, and confirm
the notice in writing, (i) of the effectiveness of any post-effective
amendment to the Registration Statement, (ii) of the mailing or the
delivery to the Commission for filing of the Prospectus or any amendment to
the Registration Statement or amendment or supplement to the Prospectus or
any document to be filed pursuant to the 1934 Act during any period when
the Prospectus is required to be delivered under the 1933 Act, (iii) of the
receipt of any comments or inquiries from the Commission relating to the
Registration Statement or Prospectus, (iv) of any request by the Commission
for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, (v) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceeding for that
purpose, and (vi) of the issuance by any state securities commission or
other regulatory authority of any order suspending the qualification or the
exemption from qualification of the Securities under state securities or
Blue Sky laws or the initiation of any proceedings for that purpose. The
Company will make every reasonable effort to prevent the issuance by the
Commission of any stop order and, if any such stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) The Company will give the Underwriters notice of its intention to
file or prepare any post-effective amendment to the Registration Statement
or any amendment or supplement to the Prospectus (including any revised
prospectus which the Company proposes for use by the Underwriters in
connection with the offering of the Securities that differs from the
prospectus filed with the Commission pursuant to Rule 424(b) of the 1933
Act Regulations, whether or not such revised prospectus is required to be
filed pursuant to Rule 424(b) of the 1933 Act Regulations), will furnish
the Underwriters with copies of any such amendment or supplement a
reasonable amount of time prior to such proposed filing or use, as the case
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may be, and will not file any such amendment or supplement or use any
such prospectus to which the Underwriters or counsel for the
Underwriters shall reasonably object.
(c) The Company will deliver to the Underwriters as many copies of the
manually executed Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith and documents
incorporated or deemed to be incorporated by reference therein) as the
Underwriters may reasonably request and will also deliver to each
Underwriter a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (including documents incorporated or
deemed to be incorporated by reference therein but without exhibits filed
therewith).
(d) The Company will furnish to each Underwriter, from time to time
during the period when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act, such number of copies of the Prospectus (as
amended or supplemented) as such Underwriter may reasonably request for the
purposes contemplated by the 1933 Act or the 1934 Act or the respective
applicable rules and regulations of the Commission thereunder.
(e) If any event shall occur as a result of which it is necessary, in
the opinion of counsel for the Underwriters or counsel for the Company, to
amend or supplement the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, the Company will forthwith amend or supplement
the Prospectus (in form and substance satisfactory to counsel for the
Underwriters) so that, as so amended or supplemented, the Prospectus will
not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances existing at the time it is delivered to a
purchaser, not misleading, and the Company will furnish to the Underwriters
a reasonable number of copies of such amendment or supplement.
(f) The Company will endeavor, in cooperation with the Underwriters,
to qualify the Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States
as the Underwriters may designate; provided, however, that the Company
shall not be obligated to file any general consent to service of process or
to qualify as a foreign corporation in any jurisdiction in which it is not
so qualified. In each jurisdiction in which the Securities shall have been
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so qualified, the Company will file such statements and reports as may be
required by laws of such jurisdiction to continue such qualification in
effect for as long as may be required for the distribution of the
Securities.
(g) The Company will make generally available to its security holders
as soon as practicable, but not later than 60 days after the close of the
period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 of the 1933 Act Regulations) covering the twelve
month period beginning not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in said Rule 158)
of the Registration Statement.
(h) The Company will use the net proceeds received by it from the sale
of the Securities in the manner specified in the Prospectus Supplement
under "Use of Proceeds".
(i) Immediately following the execution of this Agreement, the Company
will prepare a prospectus supplement, dated the date hereof (the
"Prospectus Supplement"), containing the terms of the Securities, the plan
of distribution thereof and such other information as may be required by
the 1933 Act or the 1933 Act Regulations or as the Underwriters and the
Company deem appropriate, and will file or transmit for filing with the
Commission in accordance with Rule 424(b) of the 1933 Act Regulations
copies of the Prospectus (including such Prospectus Supplement).
(j) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act, will file promptly all
documents required to be filed with the Commission pursuant to Section 13,
14 or 15 of the 1934 Act within the time periods required by the 1934 Act
and the 1934 Act Regulations.
Section 4. Payment of Expenses. The Company will pay all expenses
-------------------
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the preparation, issuance and delivery of
the certificates for the Securities to the Underwriters, (iii) the fees and
disbursements of the Company's counsel and accountants, (iv) the qualification
of the Securities under securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the reasonable fee and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of a Supplemental Blue Sky Survey, (v) the
printing and delivery to the Underwriters in quantities as hereinabove stated of
copies of the Registration Statement as originally filed and of each amendment
12
<PAGE>
thereto, of each preliminary prospectus and preliminary prospectus supplement
and of the Prospectus and Prospectus Supplement and any amendments or
supplements thereto, (vi) the printing and delivery to the Underwriters of
copies of a Supplemental Blue Sky Survey, and (vii) the fees and expenses
incurred in connection with the listing of the Securities on the New York
Stock Exchange.
If this Agreement is cancelled or terminated by the Underwriters in
accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the
Company shall reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fee and disbursements of counsel for the
Underwriters.
Section 5. Conditions of Underwriters' Obligations. The obligations of
---------------------------------------
the Underwriters hereunder are subject to the accuracy of the representations
and warranties of the Company herein contained, to the performance by the
Company of its obligations hereunder, and to the following further conditions:
(a) At Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission. The
Prospectus (including the Prospectus Supplement referred to in Section 3(i)
hereof) shall have been filed or transmitted for filing with the Commission
pursuant to Rule 424(b) of the 1933 Act Regulations within the prescribed
time period, and prior to Closing Time the Company shall have provided
evidence satisfactory to the Underwriters of such timely filing or
transmittal.
(b) At Closing Time the Underwriters shall have received:
(1) The favorable opinion, dated as of Closing Time, of Latham &
Watkins, counsel for the Company, in form and scope satisfactory to
counsel for the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Maryland.
(ii) The Company has corporate power and authority to
own, lease and operate its properties and to conduct its business
as described in the Prospectus.
13
<PAGE>
(iii) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if any,
pursuant to reservations, agreements, dividend reinvestment plans
or employee or director stock plans referred to in the
Prospectus), and the shares of issued and outstanding Common
Stock have been duly authorized and validly issued and are fully
paid and non-assessable.
(iv) The Securities have been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement
and, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth herein,
will be validly issued and fully paid and non-assessable; and the
issuance of such Securities is not subject to preemptive rights
under the Charter or Bylaws of the Company or the Maryland
General Corporation Law or, to the best of such counsel's
knowledge, otherwise.
(v) Each Significant Subsidiary of the Company has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Prospectus; all of the issued shares of capital
stock of each such subsidiary have been duly and validly
authorized and issued, and are fully paid and non-assessable and,
to the best of such counsel's knowledge, are owned by the
Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(vi) This Agreement has been duly authorized, executed
and delivered by the Company.
(vii) The Registration Statement is effective under the
1933 Act and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission.
14
<PAGE>
(viii) At the time the Registration Statement became
effective and at the Representation Date, the Registration
Statement (other than the financial statements and other
financial and statistical data and related schedules included or
incorporated by reference therein, the documents incorporated by
reference therein and the Form T-1, as to which no opinion need
be rendered) appeared on its face to comply as to form in all
material respects with the requirements of the 1933 Act and the
1933 Act Regulations.
(ix) Each document filed pursuant to the 1934 Act and
incorporated by reference in the Prospectus (other than the
financial statements and other financial and statistical data and
related schedules included or incorporated by reference therein,
as to which no opinion need be rendered), at the time they were
filed with the Commission appeared on its face to comply as to
form in all material respects with the requirements of the 1934
Act and the 1934 Act Regulations.
(x) The Common Stock conforms to the description thereof
contained in the Prospectus and the form of certificate used to
evidence the Securities is in due and proper form.
(xi) To the best of their knowledge, there are no legal
or governmental proceedings pending or threatened which are
required to be disclosed in the Prospectus.
(xii) No authorization, approval, consent, decree or
order of any court or governmental authority or agency is
required in connection with the sale of the Securities to the
Underwriters, except such as have been obtained or rendered, as
the case may be, or as may be required under the 1933 Act or the
1933 Act Regulations or state securities laws (including real
estate syndication laws).
(xiii) The execution and delivery of this Agreement and the
performance of the obligations of the Company under this
Agreement will not conflict with or result in a breach or
violation of any material term or provision of, or constitute a
default under, (i) that certain Indenture dated as of December 1,
1986 between the Company and The Bank of New York for 9 1/2%
15
<PAGE>
Senior Notes due December 1, 1996; (ii) that certain Indenture
dated as of February 15, 1988 between the Company and The Bank
of New York for 9 7/8% Senior Notes due February 15, 1998;
(iii) that certain Indenture dated as of April 1, 1989 between
the Company and The Bank of New York for Debt Securities; (iv)
that certain Amended and Restated Revolving Credit Agreement
dated as of December 15, 1991, between the Company and The
Bank of New York, NCNB National Bank of North Carolina,
Commerzbank AG, Bank of Hawaii and Kredietbank NV, and (v) any
other similar material debt instrument entered into by the
Company subsequent to the date hereof, nor will such action
result in any violation of the provisions of the charter or
by-laws of the Company or to the best of such counsel's
knowledge, result in any material violation of any statute or
any order, rule or regulation applicable to the Company of any
court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their
properties, except no opinion need be rendered under federal
securities laws except as expressly otherwise provided in this
Section 5(b)(1), and no opinion need be rendered under state
securities laws (including real estate syndication laws) or
any antifraud laws.
(xiv) The Company is not required to be registered under
the 1940 Act.
(2) The favorable opinion, dated as of Closing Time, of Latham &
Watkins, counsel for the Company, in form and substance satisfactory
to counsel for the Underwriters and subject to customary assumptions,
limitations and exceptions acceptable to counsel for the Underwriters,
to the effect that
(i) the Company was organized in conformity with the
requirements for qualification as a real estate investment trust
and its proposed method of operation will enable it to meet the
requirements for qualification and taxation as a real estate
investment trust under the Code; and
(ii) the information in the Prospectus Supplement under
the caption "Federal Income Tax Considerations", to the extent
that it constitutes matters of law, summaries of legal matters,
16
<PAGE>
documents or proceedings, or legal conclusions, has been reviewed
by them and is correct in all material respects.
(3) The favorable opinion, dated as of Closing Time, of Edward J.
Henning, Senior Legal Counsel and Corporate Secretary of the Company,
to the effect that:
(i) To the best of such counsel's knowledge and information,
the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which its ownership or leasing of its properties or the conduct
of its business requires such qualification, except where the
failure to so qualify would not have a material adverse effect on
the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(ii) To the best of such counsel's knowledge and
information, each subsidiary of the Company is duly qualified as
a foreign corporation to transact business and is in good
standing in each jurisdiction in which its ownership or lease of
substantial properties or the conduct of its business requires
such qualification, except where the failure to so qualify and be
in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(iii) To the best of such counsel's knowledge and
information, no material default exists in the due performance or
observance by the Company or any of its subsidiaries of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or
other instrument described or referred to in the Registration
Statement or filed as an exhibit thereto or incorporated by
reference therein which would have a material adverse effect on
the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
17
<PAGE>
(iv) To the best of such counsel's knowledge and
information, there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments or documents
required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by
reference as exhibits thereto and the descriptions thereof or
references thereto are correct.
(4) The favorable opinion, dated as of Closing Time, of Brown &
Wood, counsel for the Underwriters, with respect to the matters set
forth in (i), (iv), (vi), (vii), (viii) and (x) of subsection (b)(1)
of this Section.
(5) In giving their opinions required by subsections (b)(1) and
(b)(4), respectively, of this Section, Latham & Watkins and Brown &
Wood shall each additionally state that nothing has come to their
attention that caused them to believe that the Registration Statement,
at the time it became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus, at the Representation Date (unless
the term "Prospectus" refers to a prospectus which has been provided
to the Underwriters by the Company for use in connection with the
offering of the Securities which differs from the Prospectus on file
at the Commission at the Representation Date, in which case at the
time it is first provided to the Underwriters for such use) or at
Closing Time, included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. In giving their opinions, Latham & Watkins
and Brown & Wood may rely, to the extent recited therein, (A) as to
all matters of fact, upon certificates and written statements of
officers of the Company, (B) as to the qualification and good standing
of the Company to do business in any state or jurisdiction, upon
certificates of appropriate government officials and (C) as to matters
involving the laws of the State of Maryland, upon the opinion of
Ballard Spahr Andrews & Ingersoll, in form and scope satisfactory to
counsel for the Underwriters.
18
<PAGE>
(c) At Closing Time there shall not have been, since the date hereof
or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, and the Underwriters shall
have received a certificate of the President or a Vice President of the
Company and the chief financial or chief accounting officer of the Company,
dated as of Closing Time, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in Section
1 hereof are true and correct with the same force and effect as though
expressly made at and as of Closing Time, (iii) the Company has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been initiated or, to the best
knowledge and information of such officer, threatened by the Commission.
As used in this Section 5(c), the term "Prospectus" means the Prospectus in
the form first used to confirm sales of the Securities.
(d) At the time of execution of this Agreement, the Underwriters shall
have received from Arthur Andersen LLP a letter, dated such date, in form
and substance satisfactory to the Underwriters, and substantially in the
same form as the draft letter previously delivered to and approved by the
Underwriters.
(e) At Closing Time the Underwriters shall have received from Arthur
Andersen LLP a letter, dated as of Closing Time, to the effect that they
reaffirm the statements made in the letter furnished pursuant to subsection
(d) of this Section, except that the specified date referred to therein
shall be a date not more than five days prior to Closing Time.
(f) At Closing Time the Securities shall have been duly listed,
subject to notice of issuance, on the New York Stock Exchange.
(g) At Closing Time and each Date of Delivery, if any, counsel for the
Underwriters shall have been furnished with such documents and opinions as
they may reasonably require for the purpose of enabling them to pass upon
the issuance and sale of the Securities as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any
of the representations and warranties, or the fulfilllment of any of the
19
<PAGE>
conditions, herein contained; and all proceedings taken by the Company
in connection with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the
Underwriters and counsel for the Underwriters.
(h) In the event the Underwriters exercise their option provided in
Section 2 hereof to purchase all or any portion of the Option Securities,
the representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company hereunder shall be
true and correct as of each Date of Delivery, and the Underwriters shall
have received:
(1) The favorable opinion of Latham & Watkins, counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities and otherwise to the same effect as the opinion required by
Sections 5(b)(1) and 5(b)(5) hereof.
(2) The favorable opinion of Latham & Watkins, counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, reaffirming their opinion
delivered at Closing Time pursuant to Section 5(b)(2) hereof.
(3) The favorable opinion of Edward J. Henning, counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, reaffirming his opinion
delivered at Closing Time pursuant to Section 5(b)(3) hereof.
(4) The favorable opinion of Brown & Wood, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities and otherwise to the same effect as the opinion required by
Sections 5(b)(4) and 5(b)(5) hereof.
(5) A certificate of the President or a Vice President of the
Company and the chief financial or chief accounting officer of the
Company, dated such Date of Delivery, confirming that the certificate
delivered at Closing Time pursuant to Section 5(c) hereof remains true
and correct as of such Date of Delivery.
20
<PAGE>
(6) A letter from Arthur Andersen LLP, in form and substance
satisfactory to the Underwriters, dated such Date of Delivery,
substantially the same in scope and substance as the letter furnished
to the Underwriters pursuant to Section 5(e) hereof except that the
"specified date" in the letter furnished pursuant to this subsection
shall be a date not more than five days prior to such Date of
Delivery.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Underwriters by notifying the Company at any time at or prior to Closing Time,
and such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof.
Section 6. Indemnification. (a) The Company agrees to indemnify and hold
---------------
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or any omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus, any preliminary prospectus supplement or the Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and disbursements of
counsel chosen by Merrill Lynch), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
21
<PAGE>
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that (A) this indemnity agreement shall not apply to any
- -------- -------
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through Merrill Lynch expressly for use in the
Registration Statement (or any amendment thereto) or any preliminary prospectus,
preliminary prospectus supplement or the Prospectus (or any amendment or
supplement thereto), and (B) with respect to any untrue statement or omission or
alleged untrue statement or omission made in any preliminary prospectus or
preliminary prospectus supplement, this indemnity agreement shall not inure to
the benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter within the meaning of Section 15 of the 1933 Act) to the extent that
any such loss, liability, claim, damage or expense of such Underwriter or any
person controlling such Underwriter results from the fact that such Underwriter
sold Securities to a person to whom there was not sent or given by such
Underwriter or on such Underwriter's behalf at or prior to the written
confirmation of the sale of such Securities to such person, a copy of the
Prospectus (as then amended or supplemented), if required by law to have been so
delivered, and if the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such loss, liability, claim, damage or expense.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto) or any preliminary prospectus, preliminary prospectus
supplement or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with information furnished to the Company by
such Underwriter through Merrill Lynch expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus, preliminary
prospectus supplement or the Prospectus (or any amendment or supplement
thereto).
22
<PAGE>
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of any such
action. In no event shall the indemnifying parties be liable for the fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
Section 7. Contribution. In order to provide for just and equitable
------------
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with it terms, the Company and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and one or more of the Underwriters, as incurred, in
such proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the Prospectus Supplement bears to the initial public offering
price appearing thereon and the Company is responsible for the balance;
provided, however, that no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For
the purposes of this Section, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as such Underwriter and each director of the Company, each officer
of the Company who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act shall
have the same rights to contribution as the Company.
Section 8. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto
or thereto, shall remain operative and in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter or any controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Securities to the Underwriters.
23
<PAGE>
Section 9. Termination of Agreement. (a) The Underwriters may terminate
------------------------
this Agreement, by notice to the Company, at any time at or prior to Closing
Time (i) if there has been, since the date of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, (ii) if there has occurred any material adverse
change in the financial markets in the United States or any outbreak of
hostilities or other calamity or crisis the effect of which is such as to make
it, in the judgment of the Underwriters, impracticable to market the Securities
or enforce contracts for the sale of the Securities, or (iii) if trading in the
securities of the Company has been suspended by the Commission, or if trading
generally on either the American Stock Exchange or the New York Stock Exchange
has been suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by either of said
Exchanges or by order of the Commission or any other governmental authority, or
if a banking moratorium has been declared by either federal, New York or
California authorities. As used in this Section 9(a), the term "Prospectus"
means the Prospectus in the form first used to confirm sales of the Securities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof.
Section 10. Default by One or More of the Underwriters. If any Underwriter
------------------------------------------
shall fail at Closing Time to purchase the Securities which it or they are
obligated to purchase hereunder (the "Defaulted Securities"), the remaining
Underwriters (the "Non-Defaulting Underwriters") shall have the right, but not
the obligation, within 24 hours thereafter, to make arrangements to purchase
all, but not less than all, of the Defaulted Securities in such amounts as may
be agreed upon and upon the terms herein set forth; if, however, the Non-
Defaulting Underwriters shall have not completed such arrangements within such
24-hour period, then this Agreement shall terminate without liability on the
part of the Non-Defaulting Underwriters.
No action pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Non-Defaulting Underwriters or the Company shall have
the right to postpone Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
24
<PAGE>
or in any other documents or arrangements.
Section 11. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of written telecommunication. Notices to the
Underwriters shall be directed to them at Merrill Lynch at 10900 Wilshire
Boulevard, Los Angeles, California 90024, attention of James F. Flaherty III,
Managing Director, and notices to the Company shall be directed to it at 10990
Wilshire Boulevard, Suite 1200, Los Angeles, California 90024, attention of
Kenneth B. Roath, President and Chief Executive Officer, with a copy to Thomas
W. Dobson at Latham & Watkins, 633 West Fifth Street, Los Angeles, California
90071.
Section 12. Parties. This Agreement shall inure to the benefit of and be
-------
binding upon the Underwriters and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation other than the Underwriters
and the Company and their respective successors and the controlling persons and
the officers and directors referred to in Sections 6 and 7 hereof and their
heirs and legal representatives any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and said officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor merely by reason of such purchase.
Section 13. Governing Law and Time. This Agreement shall be governed by
----------------------
and construed in accordance with the laws of the State of California applicable
to agreements made and to be performed in such State. Unless stated otherwise,
all specified times of day refer to New York City time.
25
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters and the Company in accordance with its terms.
Very truly yours,
HEALTH CARE PROPERTY INVESTORS, INC.
By: /s/ Edward J. Henning
Name: Edward J. Henning
Title: Senior Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
ALEX. BROWN & SONS INCORPORATED
DEAN WITTER REYNOLDS INC.
By MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Catherine D. Rice
Name: Catherine D. Rice
Title: Director
26
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Number of
Initial
Underwriter Securities
----------- ----------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated ......................... 500,000
Alex. Brown & Sons Incorporated .................. 500,000
Dean Witter Reynolds Inc. ........................ 500,000
---------
Total 1,500,000
=========
</TABLE>
27
Exhibit 10.37
REVOLVING CREDIT AGREEMENT
dated as of March 31, 1994
among
HEALTH CARE PROPERTY INVESTORS, INC.
THE BANKS NAMED HEREIN
AND
THE BANK OF NEW YORK
as Agent
<PAGE>
TABLE OF CONTENTS
Page
----
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
THE LOANS
Section 2.01. The Loans . . . . . . . . . . . . . . . . . . . . . 15
Section 2.02. Procedure for Loans . . . . . . . . . . . . . . . . 16
Section 2.03. Notes . . . . . . . . . . . . . . . . . . . . . . . 17
Section 2.04. Certain Fees. . . . . . . . . . . . . . . . . . . . 17
Section 2.05. Cancellation or Reduction of the Commitment . . . . 17
Section 2.06. Optional Prepayment . . . . . . . . . . . . . . . . 18
ARTICLE III
INTEREST, METHOD OF PAYMENT, CONVERSION, ETC.
Section 3.01. Procedure for Interest Rate Determination . . . . . 18
Section 3.02. Interest on ABR Loans . . . . . . . . . . . . . . . 18
Section 3.03. Interest on Eurodollar Loans. . . . . . . . . . . . 19
Section 3.04. Conversion/Continuance. . . . . . . . . . . . . . . 20
Section 3.05. Post Default Interest . . . . . . . . . . . . . . . 20
Section 3.06. Maximum Interest Rate . . . . . . . . . . . . . . . 20
ARTICLE IV
DISBURSEMENT AND PAYMENT
Section 4.01. Pro Rata Treatment. . . . . . . . . . . . . . . . . 21
Section 4.02. Method of Payment . . . . . . . . . . . . . . . . . 21
Section 4.03. Compensation for Losses . . . . . . . . . . . . . . 21
Section 4.04. Withholding, Reserves and Additional Costs. . . . . 22
Section 4.05. Unavailability. . . . . . . . . . . . . . . . . . . 25
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.01. Representations and Warranties . . . . . . . . . . .26
ARTICLE VI
CONDITIONS OF LENDING
Section 6.01. Conditions to the Availability of the Commitment. . 33
Section 6.02. Conditions to All Loans . . . . . . . . . . . . . . 34
ARTICLE VII
COVENANTS
Section 7.01. Affirmative Covenants . . . . . . . . . . . . . . . 35
Section 7.02. Negative Covenants. . . . . . . . . . . . . . . . . 39
Section 7.03. Financial Covenants . . . . . . . . . . . . . . . . 42
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.01. Events of Default . . . . . . . . . . . . . . . . . 42
ARTICLE IX
THE AGENT AND THE BANKS
Section 9.01. The Agency and Co-Agency. . . . . . . . . . . . . . 45
Section 9.02. The Agent's Duties. . . . . . . . . . . . . . . . . 46
Section 9.03. Sharing of Payment and Expenses . . . . . . . . . . 46
Section 9.04. The Agent's Liabilities . . . . . . . . . . . . . . 47
Section 9.05. The Agent as a Bank . . . . . . . . . . . . . . . . 47
Section 9.06. Bank Credit Decision. . . . . . . . . . . . . . . . 47
Section 9.07. Indemnification . . . . . . . . . . . . . . . . . . 48
Section 9.08. Successor Agent . . . . . . . . . . . . . . . . . . 48
ARTICLE X
CONSENT TO JURISDICTION; JUDGMENT CURRENCY
Section 10.01. Consent to Jurisdiction . . . . . . . . . . . . . 49
ARTICLE XI
MISCELLANEOUS
Section 11.01. APPLICABLE LAW . . . . . . . . . . . . . . . . . . 50
Section 11.02. Set-off. . . . . . . . . . . . . . . . . . . . . . 50
Section 11.03. Expenses . . . . . . . . . . . . . . . . . . . . . 50
Section 11.04. Amendments . . . . . . . . . . . . . . . . . . . . 50
Section 11.05. Cumulative Rights and No Waiver. . . . . . . . . . 51
Section 11.06. Notices. . . . . . . . . . . . . . . . . . . . . . 51
Section 11.07. Separability . . . . . . . . . . . . . . . . . . . 52
Section 11.08. Assignments and Participations . . . . . . . . . . 52
Section 11.09. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . 54
Section 11.10. Confidentiality. . . . . . . . . . . . . . . . . . 54
Section 11.11. Indemnity. . . . . . . . . . . . . . . . . . . . . 54
Section 11.12. Extension of Termination Dates; Removal
of Banks; Substitutions of Banks . . . . . . . . . 55
Section 11.13. Knowledge of the Company . . . . . . . . . . . . . 56
Section 11.14. Execution in Counterparts. . . . . . . . . . . . . 57
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SIGNATURES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
<PAGE>
EXHIBITS AND SCHEDULES
EXHIBIT A Form of Conversion Request
EXHIBIT B Form of Loan Request
EXHIBIT C Form of Note
EXHIBIT D Form of Opinion of Latham & Watkins
EXHIBIT E Form of Opinion of Semmes, Bowen & Semmes
SCHEDULE 5.01(a) Subsidiaries and Joint Ventures of the Company
<PAGE>
REVOLVING CREDIT AGREEMENT
REVOLVING CREDIT AGREEMENT, dated as of March 31, 1994 (this "Agreement"),
among Health Care Property Investors, Inc., a Maryland corporation (the
"Company"), each of the banks identified on the signature pages hereof (each,
a "Bank" and, collectively, the "Banks"), The Bank of New York, as Agent for
the Banks (the "Agent"), and NationsBank of Texas, N.A. ("NationsBank"), as Co-
Agent.
W I T N E S S E T H:
WHEREAS, the Company has requested the Banks to lend up to $100,000,000
to the Company on a revolving basis for general corporate purposes; and
WHEREAS, the Company wishes to replace its current $80,000,000 self-
agented credit facility with the facility contemplated hereunder;
NOW, THEREFORE, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.
(a) Terms Generally. The definitions ascribed to terms in this Section
1.01 and elsewhere in this Agreement shall apply equally to both the singular
and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms.
The words "include", "includes" and "including" shall be deemed to be followed
by the phrase "without limitation". The words "hereby", "herein", "hereof",
"hereunder" and words of similar import refer to this Agreement as a whole
(including any exhibits and schedules hereto) and not merely to the specific
section, paragraph or clause in which such word appears. All references herein
to Articles, Sections, Exhibits and Schedules shall be deemed references to
Articles and Sections of, and Exhibits and Schedules to, this Agreement unless
the context shall otherwise require. Except as otherwise expressly provided
herein, all references to "dollars" or "$" shall be deemed references to the
lawful money of the United States of America.
(b) Accounting Terms. Except as otherwise expressly provided herein, all
terms of an accounting or financial nature shall be construed in accordance
with GAAP, as in effect from time to time; provided, however, that, for
purposes of determining compliance with any covenant set forth in Sections
7.02(a), 7.02(b), 7.02(c), 7.02(d) or 7.03 which requires financial
computations, if any such change in GAAP would have a material effect on such
computations then such terms shall be construed in accordance with GAAP as in
effect on the date of this Agreement applied on a basis consistent with the
construction thereof applied in preparing the Company's audited financial
statements referred to in Section 5.01(h). In the event there shall occur a
change in GAAP which but for the foregoing proviso would affect the computation
used to determine compliance with any covenant set forth in Sections 7.02(a),
7.02(b), 7.02(c) or 7.03 which requires financial computations, the Company and
the Banks agree to negotiate in good faith in an effort to agree upon an
amendment to this Agreement that will permit compliance with such covenant to
be determined by reference to GAAP as so changed while affording the Banks the
protection afforded by such covenant prior to such change (it being understood,
however, that such covenant shall remain in full force and effect in accordance
with its existing terms pending the execution by the Company and the Banks of
any such amendment).
(c) Other Terms. The following terms shall have the meanings ascribed
to them below or in the Sections of this Agreement indicated below:
"ABR Loans" shall mean Loans which bear interest at a rate based upon the
Base Rate and in the manner set forth in Section 3.02.
"Administrative Fee" shall have the meaning ascribed to such term in
Section 2.04(b).
"Adverse Environmental Condition" shall mean any of the matters referred
to in clauses (i) or (ii) of the definition of Environmental Claim.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with such Person. A Person shall be deemed to control another
Person if such first Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of such other
Person, whether through ownership of stock, by contract or otherwise.
"Agency Fee" shall have the meaning ascribed to such term in Section
6.01(i).
"Agent" shall have the meaning given to such term in the preamble of this
Agreement and shall also include any successor agent hereunder.
"Applicable Margin" shall mean the margin set forth in the following chart
applicable to the Pricing Level then in effect:
Applicable Margin
-----------------
Pricing Level ABR Loans Eurodollar Loans
- ------------- --------- ----------------
I 0.00% 0.3125%
II 0.00% 0.4250%
III 0.00% 0.5000%
IV 0.00% 0.7000%
V 0.50% 1.5000%
Subject to (I), (II) and (III) below, "Pricing Level I" shall be applicable for
so long as the rating of the Company's unsecured senior debt ("Senior Debt
Rating") is greater than or equal to A by Standard & Poor's Corporation ("S&P")
and greater than or equal to A2 by Moody's Investors Service, Inc. ("Moody's");
"Pricing Level II" shall be applicable for so long as the Senior Debt Rating
is greater than or equal to A- by S&P and greater than or equal to A3 by
Moody's; "Pricing Level III" shall be applicable for so long as the Senior Debt
Rating is greater than or equal to BBB+ by S&P and greater than or equal to
Baa1 by Moody's; "Pricing Level IV" shall be applicable for so long as the
Senior Debt Rating is greater than or equal to BBB- by S&P and greater than or
equal to Baa3 by Moody's; "Pricing Level V" shall be applicable for so long as
the Senior Debt Rating is less than BBB- by S&P and Baa3 by Moody's.
Notwithstanding the foregoing, (I) in the event of a split rating as
between S&P and Moody's, and one or more of Fitch Investors Service, Inc. and
Duff & Phelps Inc. (collectively with S&P and Moody's, "Rating Agencies") then
has or have a publicly available Senior Debt Rating or Ratings, then the
pricing level will be determined by the Senior Debt Rating published by the
majority, if any, of such Rating Agencies; provided that such majority must
include one of S&P or Moody's; and provided, further, that if neither the
rating of S&P nor the rating of Moody's is in such majority or there is no such
majority, then the pricing level shall be determined by the lower of the
ratings of S&P and Moody's; (II) in the event that no Senior Debt Rating is
made publicly available by S&P or Moody's and the Company's senior subordinated
unsecured debt rating ("Subordinated Debt Rating") is made publicly available
by S&P or Moody's, then for purposes of the foregoing determinations the Senior
Debt Rating shall be deemed to be equal to the Subordinated Debt Rating plus
one level (e.g., if S&P's Subordinated Debt Rating is A-, then S&P's Senior
Debt Rating shall be deemed to be A); and (III) in the event that no Senior
Debt Rating and no Subordinated Debt Rating are made available by S&P or
Moody's, then Pricing Level V above shall apply.
"Bank" shall have the meaning given to such term in the preamble of this
Agreement and shall also include any other financial institution which pursuant
to the provisions hereof becomes a party to this Agreement.
"Base LIBOR" shall mean, with respect to any Interest Period for a
Eurodollar Loan, the rate per annum determined by the Agent to be the
arithmetic mean (rounded to the nearest 1/16 of 1% or, if there is no nearest
1/16 of 1%, to the next higher 1/16 of 1%) of the respective rates of interest
communicated by the Reference Banks to the Agent as the rate at which U.S.
dollar deposits are offered to the Reference Banks by leading banks in the
London interbank deposits market at approximately 11:00 A.M., London time, on
the second full Business Day preceding the first day of such Interest Period
in an amount substantially equal to the respective Reference Amounts for a term
equal to such Interest Period.
"Base Rate" shall mean a fluctuating interest rate per annum as shall be
in effect from time to time, which rate per annum shall on any day be equal to
the higher of:
(a) the rate of interest publicly announced by the Agent from time to
time as its prime commercial loan rate in effect on such day; and
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there is no nearest
1/4 of 1%, to the next higher 1/4 of 1% of (i) 1/2 of 1% per annum and (ii) the
Federal Funds Rate.
"Borrowing Date" shall mean the date set forth in each Loan Request as the
date upon which the Company desires to borrow Loans pursuant to the terms of
this Agreement.
"Business Day" shall mean (i) with respect to any ABR Loan or any payment
of the Facility Fee, any day except a Saturday, Sunday or other day on which
commercial banks in New York City or Los Angeles are authorized by law to close
and (ii) with respect to any Eurodollar Loan, any day on which commercial banks
are open for domestic and inter-national business (including dealings in U.S.
dollar deposits) in London, New York City and Los Angeles.
"Capital Lease" shall mean, with respect to any Person, any obligation of
such Person to pay rent or other amounts under a lease with respect to any
property (whether real, personal or mixed) acquired or leased by such Person
that is required to be accounted for as a liability on a balance sheet of such
Person in accordance with GAAP.
"Capital Lease Obligations" shall mean the obliga-tion of any Person to
pay rent or other amounts under a Capital Lease.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commitment" of any Bank shall mean, in the case of each Bank (i) prior
to any such Bank's Termination Date, the amount set forth opposite such Bank's
name under the heading "Commitment" on the signature pages hereof, or set forth
in the assignment agreement executed by such Bank if it is not a Bank on the
date hereof, as such amount may be adjusted from time to time pursuant to
assignments of such Bank and as such amount may be reduced from time to time
pursuant to Section 2.05 and (ii) after such Bank's Termination Date, zero.
"Compliance Date" shall mean each of the date of this Agreement, each
Borrowing Date, each Conversion Date and the date of each delivery by the
Company of a certificate requiring the Company to certify as to the accuracy
of the representations and warranties contained in Article V.
"Consolidated Debt" shall mean Consolidated Total Liabilities less (i)
accounts payable and accrued expenses and (ii) minority interest in joint
ventures, each as set forth in the most recent financial statements delivered
to the Banks pursuant to this Agreement.
"Consolidated Depreciation/Non-Cash Charges" shall mean, at any date of
determination, "Depreciation/Non-Cash Charges" or the similar item, determined
on a consolidated basis for the Company and its subsidiaries, as shown on the
most recent consolidated statement of income for the Company and its
Subsidiaries which has been delivered to the Agent pursuant to Section 7.01(a).
"Consolidated Funds from Operations" shall mean, for any period, "Funds
From Operations" or the similar item, determined on a consolidated basis for
the Company and its subsidiaries, as shown on the most recent consolidated
statements of cash flows for the Company and its subsidiaries which has been
delivered to the Agent pursuant to Section 7.01(a).
"Consolidated Interest Expense" shall mean, for any period, total interest
expense (including that attributable to Capital Leases in accordance with GAAP)
of the Company and its subsidiaries, determined on a consolidated basis, in
accordance with GAAP with respect to all outstanding Indebtedness of the
Company and its subsidiaries, including all net costs under Interest Rate
Protection Agreements.
"Consolidated Net Income" shall mean, for any period, "Net Income" or the
similar item, determined on a consolidated basis for the Company and its
subsidiaries, as shown on the most recent consolidated statement of income for
the Company and its Subsidiaries which has been delivered to the Agent pursuant
to Section 7.01(a).
"Consolidated Senior Debt" shall mean (i) the Loans and (ii) all other
Consolidated Debt unless by the terms of the instrument creating or evidencing
such other Consolidated Debt it is provided that such Consolidated Debt is
subordinated in right of payment to the Loans.
"Consolidated Stockholders' Equity" shall mean, for any period, "Total
Stockholders' Equity" or the similar item, determined on a consolidated basis
for the Company and its subsidiaries, as shown on the most recent consolidated
balance sheet for the Company and its subsidiaries which has been delivered to
the Agent pursuant to Section 7.01(a).
"Consolidated Total Assets" shall mean, at any date of determination,
"Total Assets" or the similar item, determined on a consolidated basis for the
Company and its subsidiaries, as shown on the most recent consolidated balance
sheet for the Company and its subsidiaries which has been delivered to the
Agent pursuant to Section 7.01(a).
"Consolidated Total Liabilities" shall mean, at any date of determination,
"Total Liabilities and Stockholders Equity" or the similar item, determined on
a consolidated basis for the Company and its subsidiaries, as shown on the most
recent consolidated balance sheet for the Company and its subsidiaries which
has been delivered to the Agent pursuant to Section 7.01(a), less Consolidated
Stockholders Equity.
"Conversion/Continuance Date" shall mean the date on which a conversion
of interest rates on outstanding Loans, pursuant to a Conversion/Continuance
Request, shall take effect.
"Conversion/Continuance Request" shall mean a request by the Company to
convert or continue the interest rate on all or portions of outstanding Loans
pursuant to the terms hereof, which shall be substantially in the form of
Exhibit A and shall specify, with respect to such outstanding Loans, (i) the
requested Conversion/Continuance Date, which shall be not less than three
Business Days after the date of such Conversion/Continuance Request, (ii) the
aggregate amount of the Loans, from and after the Conversion/Continuance Date,
which are to bear interest as ABR Loans or Eurodollar Loans and (iii) if any
Loans are Eurodollar Loans, the term of the Interest Periods therefor, if any.
"Credit Documents" shall mean this Agreement and the Notes.
"Default" shall mean any event or circumstance which, with the giving of
notice or the passage of time, or both, would become an Event of Default.
"Environmental Claim" shall mean any notice, request for information,
action, claim, order, proceeding, demand or direction (conditional or
otherwise) based on, relating to or arising out of (i) any violation of any
Environmental Law by the Company or any person acting on behalf of the Company,
or (ii) any liabilities under any Environmental Law arising out of or otherwise
in respect of any act, omission, event, condition or circumstance existing or
occurring in connection with the Company, including without limitation
liabilities relating to the release of hazardous substances (whether on-site
or off-site), any claim by any third party (including, without limitation, tort
suits for personal or bodily injury, tangible or intangible property damage,
damage to the environment, nuisance and injunctive relief), fines, penalties
or restrictions, or the transportation, storage, treatment or disposal of any
Hazardous Substances.
"Environmental Law" means (i) any federal, state, foreign and local law,
statute, ordinance, rule, regulation, code, license, permit, authorization,
approval, consent, legal doctrine, order, judgment, decree, injunction,
requirement or agreement with any governmental entity, (x) relating to the
protection, preservation or restoration of the environment, (including, without
limitation, air, water vapor, surface water, groundwater, drinking water
supply, surface land, subsurface land, plant and animal life or any other
natural resource), or to human health or safety, or (y) the exposure to, or the
use, storage, recycling, treatment, generation, transportation, processing,
handling, labeling, production, release or disposal of Hazardous Substances,
in each case as amended and as now or hereafter in effect. The term
Environmental Law includes, without limitation, the federal Comprehensive
Environmental Response Compensation and Liability Act of 1980, the Superfund
Amendments and Reauthorization Act, the federal Water Pollution Control Act of
1972, the federal Clean Air Act, the federal Clean Water Act, the federal
Resource Conservation and Recovery Act of 1976 (including the Hazardous and
Solid Waste Amendments thereto), the federal Solid Waste Disposal and the
federal Toxic Substances Control Act, the Federal Insecticide, Fungicide and
Rodenticide Act, the Federal Occupational Safety and Health Act of 1970, each
as amended and as now or hereafter in effect, and (ii) any common law or
equitable doctrine (including, without limitation, injunctive relief and tort
doctrines such as negligence, nuisance, trespass and strict liability) that may
impose liability or obligations for injuries or damages due to, or threatened
as a result of, the presence of or exposure to any Hazardous Substance.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate" shall mean a corporation, partnership or other entity
which is considered one employer with the Company under Section 4001 of ERISA
or Section 414(b), (c) or (m) of the Code.
"Eurodollar Loans" shall mean Loans which bear interest at a rate based
upon Base LIBOR and in the manner set forth in Section 3.03.
"Eurodollar Reserve Percentage" shall mean for any day, that percentage,
expressed as a decimal, which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including any marginal,
supplemental or emergency reserve requirements) for a member bank of the
Federal Reserve System in New York City with deposits exceeding one billion
dollars in respect of eurocurrency funding liabilities. LIBOR shall be
adjusted automatically on and as of the effective date of any change in the
Eurodollar Reserve Percentage.
"Event of Default" shall mean any of the events described in Section 8.01.
"Facility Fee" shall have the meaning ascribed to such term in Section
2.04(a).
"Facility Fee Rate" with respect to any Facility Fee payment shall mean
the facility fee rate set forth in the following chart applicable to the
Pricing Level (determined as set forth under "Applicable Margin" above) in
effect on the date on which such Facility Fee payment is due:
Pricing Level Facility Fee
------------- ------------
I 0.1875%
II 0.2000%
III 0.2500%
IV 0.3000%
V 0.5000%
"Federal Funds Rate" for any day shall mean the rate (rounded to the
nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%, to the next higher
1/16 of 1%) on such day for Federal Funds as published in H.15(519), or any
successor publication, under the heading "Federal Funds (Effective)". In the
event that such rate or such publication is not published with respect to such
day the Federal Funds Rate on such day shall be the "Federal Funds/Effective
Rate" as posted by the Federal Reserve Bank of New York for that day in its
publication "Composite Closing Quotations for U.S. Government Securities". The
Federal Funds Rate for Saturdays, Sundays and any other day on which the
Federal Reserve Bank of New York is closed shall be the Federal Funds Rate as
in effect for the next preceding day for which such rates are published or
posted, as the case may be.
"GAAP" shall mean generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entities as may be approved by a significant segment
of the accounting profession, which are applicable to the circumstances as of
the date of determination.
"Guarantee" by any person shall mean any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other Person (the "primary obligor") in
any manner, whether directly or indirectly, and including any obligation of
such Person, (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such
Indebtedness, (ii) to purchase property, securities or services for the purpose
of assuring the holder of such Indebtedness of the payment of such
Indebtedness, or (iii) to maintain working capital, equity capital or other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness (and "Guaranteed",
"Guaranteeing" and "Guarantor" shall have meanings correlative to the
foregoing).
"Governmental Authority" shall mean any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Hazardous Substance" means any substance presently or hereafter listed,
defined, designated or classified as hazardous, toxic, radioactive or
dangerous, or otherwise regulated, under any Environmental Law, whether by type
or by quantity, including any substance containing any such substance as a
component. Hazardous Substance includes, without limitation, any toxic waste,
pollutant, contaminant, hazardous substance, toxic substance, hazardous waste,
special waste or petroleum or any derivative or by-product thereof, radon,
radioactive material, asbestos, asbestos containing material, urea formaldehyde
foam insulation, lead and polychlorinated biphenyl.
"Indebtedness" of any Person shall mean, without duplication, (a) all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services (including all obligations, contingent or
otherwise, of such Person in connection with letter of credit facilities,
bankers' acceptance facilities, Interest Rate Protection Agreements or other
similar facilities including currency swaps) other than indebtedness to trade
creditors and service providers incurred in the ordinary course of business,
(b) all obligations of such Person evidenced by bonds, notes, debentures or
other similar instruments, (c) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (d) all Capital Lease Obligations of such Person,
(e) all Indebtedness referred to in clauses (a), (b), (c) or (d) above secured
by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in property
(including accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such Indebtedness,
(f) all preferred stock issued by such Person which is redeemable, prior to the
full satisfaction of the Company's obligations under the Credit Documents
(including repayment in full of the Loans and all interest accrued thereon),
other than at the option of such Person, valued at the greater of its voluntary
or involuntary liquidation preference plus accrued and unpaid dividends and (g)
all Indebtedness of others Guaranteed by such Person. For purposes of this
Agreement, the amount of any Indebtedness under clauses (c) and (e) shall be
the lesser of (x) the principal amount of such Indebtedness and (y) the value
of the property subject to the Lien referred to therein.
"Initial Loan" shall mean the first Loan which is made pursuant to the
terms hereof.
"Interest Period" shall mean each one, two, three or six-month period, in
the case of Eurodollar Loans; such period being the one selected by the Company
pursuant to Sections 2.02 or 3.04 hereof and commencing on the date the
relevant loan is made or the last day of the current Interest Period, as the
case may be.
"Interest Rate Protection Agreements" shall mean any interest rate swap
agreement, interest rate cap agreement or similar arrangement used by a Person
to fix or cap a floating rate of interest on Indebtedness to a negotiated
maximum rate or amount.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset and (b) the interest of a vendor or lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset.
"LIBOR" shall mean with respect to any Interest Period the rate per annum
(rounded to the nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%, to
the next higher 1/16 of 1%) determined pursuant to the following formula:
Base LIBOR
-----------------------------------
LIBOR = (1 - Eurodollar Reserve Percentage)
"Loan Request" shall mean a request by the Company to borrow Loans
pursuant to the terms hereof, which shall be substantially in the form of
Exhibit B and shall specify, with respect to such requested Loans, (i) the
requested Borrowing Date, (ii) the aggregate amount of Loans which the Company
desires to borrow on such date, (iii) whether such requested Loans are to bear
interest as ABR Loans or Eurodollar Loans, and (iv) if the requested Loans are
to bear interest as Eurodollar Loans the requested term of the Interest Period
therefor.
"Loans" shall mean, collectively, ABR Loans and Eurodollar Loans
outstanding hereunder from time to time.
"Material Adverse Change" shall mean a material adverse change in the
business, properties, condition (financial or otherwise) or operations of the
Company and its Subsidiaries, taken as a whole since December 31, 1993.
"Material Adverse Effect" shall mean (i) any material adverse effect on
the business, properties, condition (financial or otherwise) or operations of
the Company and its Subsidiaries taken as a whole, from and after the date of
any determination, (ii) any material adverse effect on the ability of the
Company to perform its obligations hereunder and under the Credit Documents,
or (iii) any adverse effect on the legality, validity, binding effect or
enforceability of this Agreement or any other Credit Document.
"Money Market Loan" shall mean all borrowed money, whether or not
evidenced by any bonds, notes, debentures or other similar instruments,
obtained directly or indirectly by the Company or any Subsidiary from any
commercial bank or other financial institution, including amounts borrowed
pursuant to any line of credit, but excluding the Loans.
"Notes" shall mean, collectively, the promissory notes of the Company,
each substantially in the form of Exhibit C.
"Participant" shall have the meaning ascribed to such term in Section
11.08(b).
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
successor thereto.
"Permitted Encumbrances" shall mean (i) Liens for taxes not delinquent or
being contested in good faith and by appropriate proceedings and for which
adequate reserves (in accordance with GAAP) are being maintained, (ii) deposits
or pledges to secure obligations under workers' compensation, social security
or similar laws, or under unemployment insurance, (iii) deposits or pledges to
secure bids, tenders, contracts (other than contracts for the payment of
money), leases, statutory obligations, surety and appeal bonds and other
obligations of like nature arising in the ordinary course of business, (iv)
mechanics', workers', materialmen's or other like Liens arising in the ordinary
course of business with respect to obligations which are not due or which are
being contested in good faith and (v) minor imperfections of title on real
estate, provided such imperfections do not render title unmarketable.
"Person" shall mean any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated organization, association, corporation,
institution, public benefit corporation, entity or government (whether Federal,
state, county, city, municipal or otherwise, including any instrumentality,
division, agency, body or department thereof).
"Plan" shall mean an employee benefit plan as defined in Section 3(3) of
ERISA which is maintained or contributed to by the Company or an ERISA
Affiliate while such entity is an ERISA Affiliate.
"Prescribed Forms" shall mean such duly executed form(s) or statement(s),
and in such number of copies, which may, from time to time, be prescribed by
law and which, pursuant to applicable provisions of (a) an income tax treaty
between the United States and the country of residence of the Bank providing
the form(s) or statement(s), (b) the Code, or (c) any applicable rule or
regulation under the Code, permit the Company to make payments hereunder for
the account of such Bank free of deduction or withholding for income or similar
taxes.
"Pro Rata Share" shall mean, with respect to any Bank, the proportion of
such Bank's Commitment to the Total Commitment of all the Banks or, if the
Total Commitment shall have been cancelled or reduced to $0 or expired, the
proportion of such Bank's then outstanding Loans to the aggregate amount of
Loans then outstanding.
"Reference Amount", with respect to any Reference Bank and Interest
Period, shall mean (a) if that Reference Bank is a Bank, the amount of that
Bank's Eurodollar Loan scheduled to be outstanding during that Interest Period,
or (b) if that Reference Bank is not a Bank, the amount scheduled to be
outstanding during that Interest Period of the Eurodollar Loan of the office
or affiliate of that Reference Bank that is a Bank, in each case, (i) without
taking into account any reduction in the amount of any Bank's Loan through any
assignment or transfer and (ii) rounded up to the nearest integral multiple of
$1,000,000.
"Reference Bank" shall mean each of The Bank of New York, NationsBank, and
Wells Fargo Bank, N.A.
"Required Banks" shall mean at any date Banks having at least 51% of the
Total Commitment or, if the Total Commitment has been cancelled or terminated,
holding Notes evidencing at least 51% of the aggregate unpaid principal amount
of the Loans.
"Single-Employer Plan" shall mean any Plan that is a single-employer plan
as defined in Section 4001(a)(15) of ERISA which is subject to the provisions
of Title IV of ERISA.
"Subsidiary" shall mean any Person of which or in which the Company and
its other Subsidiaries own directly or indirectly 50% or more of:
(a) the combined voting power of all classes of stock having general
voting power under ordinary circumstances to elect a majority of the board of
directors of such Person, if it is a corporation,
(b) the capital interest or profits interest of such Person, if it is a
partnership, joint venture or similar entity, or
(c) the beneficial interest of such Person, if it is a trust, association
or other unincorporated organization; provided, however, that "Subsidiary"
shall not include any such entity that the Company does not control. For the
purposes of this paragraph, the term "control" shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a person, whether through the ownership of voting
equity interests, by contract or otherwise.
"Taxes" shall have the meaning ascribed to such term in Section 4.04(a).
"Termination Date" shall mean, with respect to any Bank, the earliest to
occur of (i) the third anniversary of the date of this Agreement or such later
date as may be agreed to by such Bank pursuant to Section 11.12, (ii) the date
on which the obligations of the Banks to make loans hereunder shall terminate
pursuant to Section 8.01 or the Commitments shall be reduced to zero pursuant
to Section 2.05, and (iii) the date specified as such Bank's Termination Date
pursuant to Section 11.12, or, if in any case (other than clause (ii) above)
such day is not a Business Day, the next succeeding Business Day; in all cases,
subject to the provisions of Section 11.12(d).
"Total Commitment" shall mean the aggregate Commitment of all the Banks.
"Unmatured Surviving Obligations" shall mean, as of any date, any
obligations under this Agreement which are contingent and unliquidated and not
then due and payable on such date and which pursuant to the provisions of this
Agreement survive termination of this Agreement.
"Wholly owned Subsidiary" shall mean any Subsidiary all the equity
interests of which (other than directors' qualifying shares, if a corporation)
at the time are owned directly or indirectly by the Company and/or one or more
Wholly owned Subsidiaries of the Company.
ARTICLE II
THE LOANS
Section 2.01. The Loans. Prior to the Termination Date, and subject to
the terms and conditions of this Agreement, upon the request of the Company,
and upon the satisfaction by the Company or the waiver by each of the Banks of
each of the conditions precedent contained in Section 6.02, each of the Banks,
severally and not jointly with the other Banks, agrees to make one or more
Loans to the Company from time to time in an aggregate principal amount at any
one time outstanding not to exceed its Commitment; provided, however, that the
sum of (i) aggregate outstanding Loans and (ii) aggregate outstanding Money
Market Loans, may not exceed the Total Commitment.
Section 2.02. Procedure for Loans. (a) The Company may borrow Loans by
delivering a written Loan Request to the Agent on or before 12:00 P.M., New
York City time, on the requested Borrowing Date therefor, in the case of ABR
Loans, or on the date not less than three Business Days prior to the requested
Borrowing Date therefor, in the case of Eurodollar Loans. Loans shall be in
the minimum aggregate amount of $1,000,000 or in integral multiples of $100,000
in excess thereof.
(b) Upon receipt of any Loan Request from the Company, the Agent shall
forthwith give notice to each Bank of the substance thereof. Not later than
2:00 P.M., New York time, on the Borrowing Date specified in such Loan Request,
each Bank shall make available to the Agent in immediately available funds at
the office of the Agent at its address set forth on the signature pages hereof,
such Bank's Pro Rata Share of the requested Loans.
(c) Upon receipt by the Agent of all such funds and satisfaction by the
Company or waiver by each of the Banks of each of the conditions precedent
contained in Section 6.02, the Agent shall disburse to the Company on the
requested Borrowing Date the Loans requested in such Loan Request. The Agent
may, but shall not be required to, advance on behalf of any Bank such Bank's
Pro Rata Share of the Loans on a Borrowing Date unless such Bank shall have
notified the Agent prior to such Borrowing Date that it does not intend to make
available its Pro Rata Share of such Loans on such date. If the Agent makes
such advance, the Agent shall be entitled to recover such amount on demand from
the Bank on whose behalf such advance was made, and if such Bank does not pay
the Agent the amount of such advance on demand, the Company shall promptly
repay such amount to the Agent. Until such amount is repaid to the Agent by
such Bank or the Company, such advance shall be deemed for all purposes to be
a Loan made by the Agent. The Agent shall be entitled to recover from the Bank
or the Company, as the case may be, interest on the amount advanced by it for
each day from the Borrowing Date therefor until repaid to the Agent, at a rate
per annum equal to (i) the Federal Funds Rate, for the five-day period
beginning on the Borrowing Date, and (ii) the applicable rate on the Loans made
on the Borrowing Date for the period beginning on the sixth day after the
Borrowing Date.
(d) In lieu of delivering the written notice described above, the Company
may give the Agent telephonic notice of any request for borrowing by the time
required under this Section 2.02; provided that such telephonic notice shall
be confirmed by delivery of a written notice to the Agent by no later than 4:00
P.M., New York City time, on the date of such telephonic notice.
Section 2.03. Notes. The Company's obligation to repay the Loans shall
be evidenced by Notes, one such Note payable to the order of each Bank. The
Note of each Bank shall (i) be in the principal amount of such Bank's
Commitment, (ii) be dated the date of the initial Loan and (iii) be stated to
mature on the Termination Date as such date may be extended hereunder and bear
interest from its date until maturity on the principal balance (from time to
time outstanding thereunder) payable at the rates and in the manner provided
herein. Each Bank is authorized to indicate upon the grid attached to its Note
all Loans made by it pursuant to this Agreement, interest elections and
payments of principal and interest thereon. Such notations shall be
presumptive as to the aggregate unpaid principal amount of all Loans made by
such Bank, and interest due thereon, but the failure by any Bank to make such
notations or the inaccuracy or incompleteness of any such notations shall not
affect the obligations of the Company hereunder or under the Notes.
Section 2.04. Certain Fees. (a) The Company shall pay to the Agent for
the account of the Banks a fee (the "Facility Fee") equal to the Facility Fee
Rate per annum (on the basis of a 360-day year consisting of twelve 30-day
months) on the daily average amount of the Total Commitment during the quarter
with respect to which such Facility Fee is being paid. Such fee shall be
payable in arrears on the last day of each calendar quarter, commencing on the
first such date after the date hereof, on any date that the Total Commitment
is cancelled or reduced pursuant to Section 2.05 (but only with respect to the
amount of such cancellation or reduction) and on the Termination Date.
(b) The Company shall pay to the Agent for its account an administrative
fee (the "Administrative Fee") pursuant to a letter agreement, dated the date
hereof, between the Company and the Agent or as may hereafter be agreed to
between the Agent and the Company.
Section 2.05. Cancellation or Reduction of the Commitment. The Company
shall have the right, upon not less than two Business Days' written notice to
the Agent and upon payment of the Facility Fees accrued through the date of
such cancellation or reduction, with respect to the amount of the cancellation
or reduction, to cancel the Total Commitment in full or to reduce the amount
thereof; provided, however, that the Total Commitment may not be canceled so
long as any Loan remains outstanding; and provided, further, that the amount
of any partial reduction in the Total Commitment shall not exceed the remainder
of (i) the Total Commitment on such date minus (ii) the aggregate outstanding
principal amount of Loans and Money Market Loans on such date. Partial
reductions of the Total Commitment shall be in the amount of $1,000,000 or in
integral multiples of $100,000 in excess thereof (or, if the aggregate
outstanding amount of Loans is less than $1,000,000, then all of such lesser
amount). All such cancellations or reductions shall be permanent.
Section 2.06. Optional Prepayment. The Company shall have the right, on
not less than two Business Days' written notice to the Agent in the case of
Eurodollar Loans, and not less than one Business Day's written notice to the
Agent in the case of ABR Loans, to prepay Loans bearing interest on the same
basis and having the same Interest Periods, if any, in whole or in part,
without premium or penalty, in the aggregate principal amount of $1,000,000 or
in integral multiples of $100,000 in excess thereof (or, if the outstanding
aggregate amount of such Loan is less than $1,000,000, then all of such lesser
amount), together with accrued interest on the principal being prepaid to the
date of prepayment and, in the case of Eurodollar Loans, the amounts required
by Section 4.03. Subject to the terms and conditions hereof, prepaid Loans may
be reborrowed.
ARTICLE III
INTEREST, METHOD OF PAYMENT, CONVERSION, ETC.
Section 3.01. Procedure for Interest Rate Determination. (a) Unless the
Company shall request in a Loan Request or in a Conversion Request that the
Loans (or portions thereof) bear interest as Eurodollar Loans, the Loans shall
bear interest as ABR Loans.
Section 3.02. Interest on ABR Loans. Each ABR Loan shall bear interest
from the date of such ABR Loan until maturity thereof or until such Loan is
repaid, or the beginning of any relevant Interest Period, as the case may be,
payable in arrears on the last day of each calendar quarter of each year,
commencing with the first such date after the date hereof, and on the date such
ABR Loan is repaid, at a rate per annum (on the basis of a 365- or 366-day year
for the actual number of days involved in the case of ABR Loans which accrue
interest based upon the Prime Rate and on the basis of a 360-day year for the
actual number of days involved in the case of ABR Loans which accrue interest
based upon the Federal Funds Rate) equal to the sum of (i) the Applicable
Margin with respect to ABR Loans and (ii) the Base Rate in effect from time to
time, which rate shall change as and when said Base Rate shall change.
Section 3.03. Interest on Eurodollar Loans. (a) Each Eurodollar Loan
shall bear interest from the date of such Loan until maturity thereof or until
such Loan is repaid, payable in arrears, with respect to Interest Periods of
three months or less, on the last day of such Interest Period, and with respect
to Interest Periods longer than three months, on the day which is three months
after the commencement of such Interest Period and on the last day of such
Interest Period, at a rate per annum (on the basis of a 360-day year for the
actual number of days involved), determined by the Agent with respect to each
Interest Period with respect to Eurodollar Loans, equal to the sum of (i) the
Applicable Margin with respect to Eurodollar Loans and (ii) LIBOR.
(b) The Interest Period for each Eurodollar Loan shall be selected by the
Company at least three Business Days prior to the beginning of such Interest
Period. If the Company fails to notify the Agent of the Interest Period for
a subsequent Eurodollar Loan at least three Business Days prior to the last day
of the then current Interest Period of an outstanding Eurodollar Loan, then
such outstanding Eurodollar Loan shall become an ABR Loan at the end of such
current Interest Period.
(c) Notwithstanding the foregoing: (i) if any Interest Period for a
Eurodollar Loan would otherwise end on a day which is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless
the result of such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period shall end on the
immediately preceding Business Day; (ii) any Interest Period that begins on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and (iii) no
Interest Period for a Eurodollar Loan may extend beyond the Termination Date.
(d) Eurodollar Loans shall be made by each Bank from its branch or
affiliate identified as its Eurodollar Lending Office on the signature page
hereto, or such other branch or affiliate as it may hereafter designate to the
Company and the Agent as its Eurodollar Lending Office. A Bank shall not
change its Eurodollar Lending Office designation if it, at the time of the
making of such change, increases the amounts that would have been payable by
the Company to such Bank under this Agreement in the absence of such a change.
Section 3.04. Conversion/Continuance . (a) The Company may request, by
delivery to the Agent of a written Conversion/Continuance Request not less than
three Business Days prior to a requested Conversion/Continuance Date, that all
or portions of the outstanding Loans, in the aggregate amount of $1,000,000 or
in integral multiples of $100,000 in excess thereof (or, if the aggregate
amount of outstanding Loans is less than $1,000,000, then all such lesser
amount), to bear interest from and after the Conversion Date as either ABR
Loans or Eurodollar Loans.
(b) Upon receipt of any such Conversion/Continuance Request from the
Company, the Agent shall forthwith give notice to each Bank of the substance
thereof. Effective on such Conversion/Continuance Date and upon payment by the
Company of the amounts, if any, required by Section 4.03, the Loans or portions
thereof as to which the Conversion/Continuance Request was made shall commence
to accrue interest as set forth in this Article III for the interest rate
selected by the Company.
(c) In lieu of delivering the above described notice, the Company may
give the Agent telephonic notice hereunder by the required time under this
Section 3.04; provided that such telephonic notice shall be confirmed by
delivery of a written notice to the Agent by no later than 4:00 P.M., New York
City time, the date of such telephonic notice.
Section 3.05. Post Default Interest. Upon the occurrence and during the
continuation of an Event of Default, all Loans and any unpaid installment of
interest shall bear interest at a rate per annum (on the basis of a 360-day
year for the actual number of days involved) equal to the sum of (i) 2% and
(ii) with respect to ABR Loans, the rate of interest then applicable to ABR
Loans, changing as and when said rate shall change, and, with respect to
Eurodollar Loans, the rate of interest applicable to each such Eurodollar Loan.
Interest payable pursuant to this Section 3.05 shall be payable on demand.
Section 3.06. Maximum Interest Rate. (a) Nothing in this Agreement or
the Notes shall require the Company to pay interest at a rate exceeding the
maximum rate permitted by applicable law. Neither this Section nor Section
11.01 is intended to limit the rate of interest payable for the account of any
Bank to the maximum rate permitted by the laws of the State of New York (or any
other applicable law) if a higher rate is permitted with respect to such Bank
by supervening provisions of U.S. Federal law.
(b) If the amount of interest payable for the account of any Bank on any
interest payment date in respect of the immediately preceding interest
computation period, computed pursuant to this Article III, would exceed the
maximum amount permitted by applicable law to be charged by such Bank, the
amount of interest payable for its account on such interest payment date shall
automatically be reduced to such maximum permissible amount.
ARTICLE IV
DISBURSEMENT AND PAYMENT
Section 4.01. Pro Rata Treatment. Each payment of the Facility Fee and
each reduction of the Total Commitment shall be apportioned among the Banks in
proportion to each Bank's Pro Rata Share. Except as provided in Section 4.04
or 4.05, the Notes or portions thereof as to which a Conversion/Continuance
Request has been made pursuant to Section 3.04 hereof shall at all times bear
interest on the same basis (as ABR Loans and Eurodollar Loans) and the Interest
Periods applicable thereto, if any, shall be of the same duration.
Section 4.02. Method of Payment. All payments by the Company hereunder
and under the Notes shall be made without set-off or counterclaim to the Agent,
for its account or for the account of the Bank or Banks entitled thereto, as
the case may be, in lawful money of the United States and in immediately
available funds at the office of the Agent on the date when due.
Section 4.03. Compensation for Losses. (a) Compensation. In the event
that (i) the Company makes a prepayment under Section 2.06 on a day other than
the last day of the Interest Period for the amount so prepaid, (ii) a
Conversion/Continuance Date selected pursuant to Section 3.04 falls on a day
other than the last day of the Interest Period for the amount as to which a
conversion is made, (iii) the Company revokes any notice given under Section
2.02 requesting Eurodollar Loans, (iv) the Loans or portions thereof are
converted into ABR Loans pursuant to Section 4.05 on a day other than the
last day of the Interest Period for the Eurodollar Loans so converted, (v) or
the Eurodollar Loans shall be declared to be due and payable prior to the
scheduled maturity thereof pursuant to Section 8.01, the Company shall pay to
each Bank promptly after its demand an amount which will compensate such Bank
for any costs and losses incurred by such Bank as a result of such
prepayment, conversion, declaration or revocation of notice in respect of
funds obtained for the purpose of making or maintaining such Bank's
Eurodollar Loans, or any part thereof. Such compensation shall include an
amount equal to the excess, if any, of (i) the amount of interest which would
have accrued on the amount so paid or prepaid, or not borrowed or converted,
for the period from the date of such payment or prepayment or conversion or
failure to borrow to the last day of such Interest Period (or, in the case of
a failure to borrow, the Interest Period that would have commenced on the date
of such failure to borrow) in each case at the applicable rate of interest for
such Loan provided for herein (excluding, however, the Applicable Margin
included therein) over (ii) the amount of interest (as reasonably determined
by such Bank) which would have accrued to such Bank on such amount by placing
such amount on deposit for a comparable period with leading banks in the London
interbank market.
(b) Certificate, Etc. Each Bank shall promptly notify the Company, with
a copy to the Agent, upon becoming aware that the Company may be required to
make any payment pursuant to this Section 4.03. When requesting payment
pursuant to this Section 4.03, each Bank shall provide to the Company, with a
copy to the Agent, a certificate, signed by an officer of such Bank, setting
forth the amount required to be paid by the Company to such Bank and the
computations made by such Bank to determine such amount. In the absence of
manifest error, such certificate shall be conclusive and binding on the Company
as to the amount so required to be paid by the Company to such Bank.
(c) Participants. Subject to Section 11.08(e), each Participant shall
be deemed a "Bank" for the purposes of this Section 4.03.
Section 4.04. Withholding, Reserves and Additional Costs. (a)
Withholding. To the extent permitted by law, all payments under this Agreement
and under the Notes (including payments of principal and interest) shall be
payable to each Bank free and clear of any and all present and future taxes,
levies, imposts, duties, deductions, withholdings, fees, liabilities and
similar charges (collectively, the "Taxes"); provided that "Taxes" shall not
include taxes imposed on or measured by the overall net income of any Bank by
the United States of America or any political subdivision or taxing authority
thereof or therein, or taxes on or measured by the overall net income of any
foreign office, branch or subsidiary of such Bank by any foreign country or
subdivision thereof in which such office, branch or subsidiary is doing
business. If any Taxes are required to be withheld or deducted from any amount
payable under this Agreement or any Note, then the amount payable under this
Agreement or such Note shall be increased to the amount which, after deduction
from such increased amount of all Taxes required to be withheld or deducted
therefrom, will yield to such Bank the amount stated to be payable under this
Agreement or such Note. The Company shall execute and deliver to any Bank upon
its request such further instruments as may be necessary or desirable to give
full force and effect to any such increase, including a new Note of the Company
to be issued in exchange for any Note theretofore issued. If any of the Taxes
specified in this Section 4.04(a) are paid by any Bank, the Company shall, not
later than 10 days after demand of such Bank, reimburse such Bank for such
payments, together with any interest, penalties and expenses incurred in
connection therewith, plus interest thereon commencing 10 days after such
demand at a rate per annum (based on a 360-day year for the actual number of
days involved) equal to the sum of 2% and the interest rate then applicable to
ABR Loans, changing as and when such rate shall change, from the date such
payment or payments are made by such Bank to the date of reimbursement by the
Company; provided, however, that the Company shall not be required to indemnify
any Bank or Participant for penalties and expenses that result from the gross
negligence or willful misconduct of such Bank or Participant. The Company
shall deliver to the Agent certificates or other valid vouchers for all Taxes
or other charges deducted from or paid with respect to payments made by the
Company hereunder. Notwithstanding the foregoing, the Company shall be
entitled, to the extent it is required to do so by law, to deduct or withhold
(and shall not be required to make payments as otherwise required in this
Section on account of such deductions or withholdings) income or other similar
taxes imposed by the United States of America from interest, fees or other
amounts payable hereunder for the account of any Bank other than a Bank (i) who
is a U.S. Person for U.S. Federal income tax purposes or (ii) who has the
Prescribed Forms on file with the Company for the applicable year to the extent
deduction or withholding of such taxes is not required as a result of such
filing of such Prescribed Forms; provided that if the Company shall so deduct
or withhold any such taxes, it shall provide a statement to the Agent and such
Bank, setting forth the amount of such taxes so deducted or withheld, the
applicable rate and any other information or documentation which such Bank may
reasonably request for assisting such Bank to obtain any allowable credits or
deductions for the taxes so deducted or withheld in the jurisdiction or
jurisdictions in which such Bank is subject to tax.
(b) Additional Costs. (i) If after the date hereof, any change in any
law or regulation or in the interpretation thereof by any court or
administrative or governmental authority charged with the administration
thereof or the enactment of any law or regulation shall either (1) impose,
modify or deem applicable any reserve, special deposit or similar requirement
against the Banks' Commitments or the Loans or (2) impose on any Bank any other
condition regarding this Agreement, its Commitment or the Loans and the result
of any event referred to in clause (1) or (2) of this clause (b) shall be to
increase the cost to any Bank of maintaining its Commitment or the Loans (which
increase in cost shall be calculated in accordance with each Bank's reasonable
averaging and attribution methods) by an amount which any such Bank deems to
be material, then, upon written demand by such Bank, the Company shall pay to
such Bank within 10 days of such written demand an amount equal to such
increase in cost; provided that in respect of any Loan, no such compensation
shall be payable to the extent that, in the reasonable opinion of such Bank,
the interest rate on the Loans has been adjusted to account for such increased
cost. Such amount shall bear interest, commencing 10 days after receipt by the
Company of such demand until payment in full thereof, at a rate per annum
(based on a 360-day year, for the actual number of days involved) equal to the
sum of 2% and the interest rate then applicable to ABR Loans, changing as and
when such rate shall change.
(ii) If any Bank shall have determined that the adoption of any
applicable law, rule, regulation or guideline regarding capital adequacy, or
any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof (including any such
adoption or change made prior to the date hereof but not effective until after
the date hereof), or compliance by any Bank with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on capital for any such Bank or any corporation
controlling such Bank as a consequence of its obligations under this Agreement
to a level below that which such Bank or such corporation could have achieved
but for such adoption, change or compliance (taking into consideration such
Bank's or such corporation's policies with respect to capital adequacy), then
from time to time, not later than 10 days after written demand by such Bank,
the Company shall pay to such Bank such additional amount or amounts as will
compensate such Bank for such reduction, plus interest thereon commencing 10
days after receipt by the Company of such written demand at a rate per annum
(based on a 360-day year, for the actual number of days involved) equal to the
sum of 2% and the interest rate then applicable to ABR Loans, changing as and
when such rate shall change, from the date of such demand by such Bank to the
date of payment by the Company.
(c) Lending Office Designations. Before giving any notice to the Company
pursuant to this Section 4.04, each Bank shall, if possible, designate a
different lending office if such designation will avoid the need for giving
such notice and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank.
(d) Certificate, Etc. Each Bank shall promptly notify the Company, with
a copy to the Agent, upon becoming aware that the Company may be required to
make any payment pursuant to this Section 4.04. When requesting payment
pursuant to this Section 4.04, each Bank shall provide to the Company, with a
copy to the Agent, a certificate, signed by an officer of such Bank, setting
forth the amount required to be paid by the Company to such Bank and the
computations made by such Bank to determine such amount. Determinations and
allocations by such Bank for purposes of this Section 4.04 shall be conclusive,
provided that such determinations and allocations are made on a reasonable
basis and are mathematically accurate. Allocations shall not be deemed
reasonable unless made ratably, to the extent practicable, to all of the
affected Bank's assets, commitments, activities or other relevant aspects of
such Bank's business. In the absence of manifest error, such certificate shall
be conclusive and binding on the Company as to the amount so required to be
paid by the Company to such Bank.
(e) Participants. Subject to Section 11.08(e), each Participant shall
be deemed a "Bank" for the purposes of this Section 4.04.
Section 4.05. Unavailability. If at any time any Bank shall have
determined in good faith (which determination shall be conclusive) that the
making or maintenance of all or any part of such Bank's Eurodollar Loans has
been made impracticable or unlawful because of compliance by such Bank in good
faith with any law or guideline or interpretation or administration thereof by
any official body charged with the interpretation or administration thereof or
with any request or directive of such body (whether or not having the effect
of law), because U.S. dollar deposits in the amount and requested maturity of
such Eurodollar Loans are not available to the Bank in the London Eurodollar
interbank market, or because of any other reason, then the Agent, upon
notification to it of such determination by such Bank, shall forthwith advise
the other Banks and the Company thereof. Upon such date as shall be specified
in such notice and until such time as the Agent, upon notification to it by
such Bank, shall notify the Company and the other Banks that the circumstances
specified by it in such notice no longer apply, (i) notwithstanding any other
provision of this Agreement, such Eurodollar Loans of such Bank shall
automatically and without requirement of notice by the Company be converted to
ABR Loans and (ii) the obligation of only such Bank to allow borrowing,
elections and renewals of Eurodollar Loans shall be suspended, and, if the
Company shall request in a Loan Request or Conversion Request that such Bank
make a Eurodollar Loan, the loan requested to be made by such Bank shall
instead be made as an ABR Loan.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.01. Representations and Warranties. As of each Compliance
Date, the Company represents and warrants to the Banks that:
(a) Subsidiaries. At the date hereof, the Company has no Subsidiaries
and is a participant in no joint ventures other than as listed on Schedule
5.01(a).
(b) Good Standing and Power. The Company is duly organized and validly
existing and in good standing under the laws of the State of Maryland; and the
Company has the power to own its property and to carry on its business as now
being conducted and is duly qualified to do business and is in good standing
in each jurisdiction in which the character of the properties owned or leased
by it therein or in which the transaction of its business makes such
qualification necessary, except where the failure to be so qualified or to be
in good standing, individually or in the aggregate, would not have a Material
Adverse Effect. Each of the corporate Subsidiaries of the Company are
corporations, each duly organized and validly existing, under the laws of the
jurisdiction of its incorporation; each other Subsidiary is an entity duly
organized and validly existing under the laws of the jurisdiction of its
organization; and each Subsidiary has the power to own its property and to
carry on its business as now being conducted and is duly qualified to do
business and is in good standing in each jurisdiction in which the character
of the properties owned or leased by it therein or in which the transaction of
its business makes such qualification necessary, except where the failure to
be so organized, existing, qualified, or to be in good standing, individually
or in the aggregate, would not have a Material Adverse Effect.
(c) Corporate Authority. The Company has full corporate power and
authority to execute, deliver and perform its obligations under each of the
Credit Documents, to make the borrowings contemplated hereby, and to execute
and deliver the Notes and to incur the obligations provided for herein and
therein, all of which have been duly authorized by all proper and necessary
corporate action. No consent or approval of stockholders is required as a
condition to the validity or performance by the Company of its obligations
under any of the Credit Documents.
(d) Authorizations. All authorizations, consents, approvals,
registrations, notices, exemptions and licenses with or from Governmental
Authorities and other Persons which are necessary for the borrowing hereunder,
the execution and delivery of the Credit Documents, the performance by the
Company of its obligations hereunder and thereunder have been effected or
obtained and are in full force and effect.
(e) Binding Agreements. This Agreement constitutes, and the Notes, when
executed and delivered pursuant hereto for value received will constitute, the
valid and legally binding obligations of the Company enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles.
(f) Litigation. There are no proceedings pending or, so far as the
officers of the Company know, proceedings or investigations threatened before
any court or arbitrator or before or by any Governmental Authority which, in
any one case or in the aggregate, if determined adversely to the interests of
the Company or any of its Subsidiaries, would have a Material Adverse Effect
or relates to any Credit Document or the lending transactions contemplated
hereby and thereby.
(g) No Conflicts. There is no statute, regula-tion, rule, order or
judgment, and no provision of any material agreement or instrument binding on
the Company or any of its Subsidiaries, or affecting their respective
properties and no provision of the certificate of incorporation, by-laws,
governing partnership agreement or other organizational document of the Company
or any of its Subsidiaries, which would prohibit, conflict with or in any way
prevent the execution, delivery, or performance of the terms of the Credit
Documents or the incurrence of the obligations provided for herein and therein,
or result in or require the creation or imposition of any Lien on any of the
Company's or its Subsidiaries' properties as a consequence of the execution,
delivery and performance of any Credit Document or the lending transactions
contemplated hereby and thereby.
(h) Financial Condition. (i) The consolidated balance sheet of the
Company and its Subsidiaries as of December 31, 1993, together with
consolidated statements of income, stockholders' equity and cash flows for the
fiscal year then ended, certified by Arthur Andersen & Co., heretofore
delivered to the Agent and the Banks, fairly present the consolidated financial
condition of the Company and its Subsidiaries and the results of their
operations as of the dates and for the periods referred to and have been
prepared in accordance with GAAP consistently applied throughout the periods
involved. As of the date hereof, there are no material liabilities, direct or
indirect, fixed or contingent, of the Company or any of its Subsidiaries as of
the dates of such balance sheet which are not reflected therein or in the notes
thereto.
(ii) There has been no Material Adverse Change.
(iii) Since December 31, 1993, there has not occurred any fact, event or
condition which could have a Material Adverse Effect.
(i) Taxes. The Company and each of its Subsid-iaries has filed or caused
to be filed all tax returns which are required to be filed and has paid all
taxes required to be shown to be due and payable on said returns or on any
assessment made against it or any of its property and all other taxes,
assessments, fees, liabilities, penalties or other charges imposed on it or any
of its property by any Governmental Authority, except for any taxes,
assessments, fees, liabilities, penalties or other charges (x) which are being
contested in good faith and for which adequate reserves (in accordance with
GAAP) have been established or (y) of which the failure to file or pay would
not, individually or in the aggregate, be material and adverse to the Company
and its Subsidiaries taken as a whole.
(j) Use of Proceeds. The proceeds of the Loans will be used by the
Company for general corporate purposes.
(k) Margin Regulations. No part of the proceeds of any Loan will be used
to purchase or carry, or to reduce or retire or refinance any credit incurred
to purchase or carry, or extend credit to others for the purpose of purchasing
or carrying, any "margin stock" as defined in Regulation G or Regulation U of
the Board of Governors of the Federal Reserve System.
(l) No Material Misstatements. All written information relating to the
Company and its Subsidiaries heretofore delivered by the Company and its
Subsidiaries to the Agent or any Bank in connection with the Credit Documents
is complete and correct in all material respects for the purposes for which
such information was delivered.
(m) Title to Properties; Possession Under Leases. The Company and its
Subsidiaries each have good and marketable title to, or valid leasehold
interests in, all properties and assets reflected on the consolidated balance
sheet of the Company as of December 31, 1993, referred to in Section 5.01(h),
except for (x) such properties and assets as have been disposed of in the
ordinary course of business or as would have been permitted by this Agreement
if then in effect since the date of such financial statements, (y) minor
defects in title that do not interfere with the ability of the Company or any
of such Subsidiaries to conduct its business as now conducted and (z) such
other items as would not, individually or in the aggregate, be material and
adverse to the Company and its Subsidiaries taken as a whole. All such assets
and properties are free and clear of all Liens, except Liens permitted pursuant
to this Agreement.
(n) Leases. Except as could not, in any one case individually or all
cases in the aggregate, have a Material Adverse Effect, (i) there are no
renewal or extension options applicable to any lease to which the Company or
any Subsidiary is a party; (ii) to the Company's knowledge, no condition exists
which, with the giving of notice or the passage of time, or both, would permit
any lessee to cancel its obligations under any lease to which the Company or
any Subsidiary is a party; (iii) the Company has received no notice that any
lessee intends to cease operations at any leased property prior to the
expiration of the term of the applicable lease (other than temporarily due to
casualty, remodeling, renovation or any similar cause); and (iv) to the
Company's knowledge, none of the lessees or their sub-lessees, if any, under
any of the leases to which the Company or any Subsidiary is a party is the
subject of any bankruptcy, reorganizations, insolvency or similar proceeding.
(o) Conduct of Business. At the date hereof, the Company and its
Subsidiaries hold all authorizations, consents, approvals, registrations,
franchises, licenses and permits, with or from Governmental Authorities and
other Persons as are required or necessary for them to own their properties and
conduct their business as now conducted, except for any authorizations,
consents, approvals, registrations, franchises, licenses and permits, of which
the failure to hold would not, individually or in the aggregate, be material
and adverse to the Company and its Subsidiaries taken as a whole.
(p) Compliance with Laws and Charter Documents. Neither the Company nor
any Subsidiary thereof is in violation of (a) any law, statute, rule,
regulation or order of any Governmental Authority (including Environmental
Laws) applicable to it or its properties or assets or (b) its certificate of
incorporation, by-laws, governing partnership agreement or other organizational
document, except for any such violation as would not, individually or in the
aggregate, be material and adverse to the Company and its Subsidiaries taken
as a whole.
(q) ERISA. (i) Neither the Company nor any ERISA Affiliate has engaged
in a non-exempt prohibited transaction (as defined in Section 4975 of the Code
or Section 406 of ERISA).
(ii) Except those items that would not, individually or in the aggregate,
be material and adverse to the Company and its Subsidiaries taken as a whole,
no Single-Employer Plan had an accumulated funding deficiency, whether or not
waived, as of the last day of the most recent fiscal year of such Plan ended
prior to the date hereof and neither the Company nor any ERISA Affiliate is (A)
required to give security to any Single-Employer Plan pursuant to Section
401(a)(29) of the Code or Section 307 of ERISA, or (B) subject to a lien in
favor of such a Plan under Section 302(f) of ERISA.
(iii) Except those items that would not, individually or in the
aggregate, be material to the Company and its Subsidiaries taken as a whole,
no liability under Sections 4062, 4063, 4064 OR 4069 of ERISA has been or is
expected by the Company to be incurred by the Company or any ERISA Affiliate
with respect to any Single-Employer Plan and neither the Company nor any ERISA
Affiliate has incurred or expects to incur any withdrawal liability with
respect to any Plan which is a multiemployer plan (as defined in Section
4001(a)(3) of ERISA).
(iv) Except those items that would not, individually or in the aggregate,
be material to the Company and its Subsidiaries taken as a whole, under each
Single-Employer Plan, as of the last day of the most recent plan year ended
prior to the date hereof, the actuarially determined present value of all
benefit liabilities (as determined on the basis of the actuarial assumptions
contained in the Plan's most recent actuarial valuation) did not exceed the
fair market value of the asset of such Plan by more than $1,000,000, and there
has been no material change in the financial condition of the Plan since the
last day of the most recent plan year.
(v) Insofar as the representations and warranties of the Company and its
ERISA Affiliates contained in clauses (i) and (ii) above relate to any Plan
which is a multiemployer plan, such representations and warranties are made to
the best knowledge of the Company and its ERISA Affiliates. As used in this
Section, (A) "accumulated funding deficiency" shall have the meaning assigned
to such term in Section 412 of the Code and Section 302 of ERISA; (ii)
"multiemployer plan" and "plan year" shall have the respective meanings
assigned to such terms in Section 3 of ERISA; (C) "benefit liabilities" shall
have the meaning assigned to such term in Section 4001 of ERISA; (D) "taxable
period" shall have the meaning assigned to such term in Section 4975 of the
Code; and (E) "withdrawal liability" shall have the meaning assigned to such
term in Part 1 of Subtitle E of Title IV of ERISA.
(r) Not an Investment Company. Neither the Company nor any of its
Subsidiaries is or, after giving effect to the transactions contemplated hereby
will be an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
(s) Environmental Matters. Except as could not, individually or in the
aggregate, have a Material Adverse Effect, (i) the businesses as presently or
formerly engaged in by the Company and its Subsidiaries are and have been
conducted in compliance in all material respects with all applicable
Environmental Laws, including, without limitation, having required permits,
licenses and other approvals and authorizations, during the time the Company
and its Subsidiaries engaged in such businesses, (ii) the properties presently
or formerly owned or operated by the Company and its Subsidiaries (including,
without limitation, soil, groundwater or surface water on, under or adjacent
to the properties, and buildings thereon) (the "Properties) do not, to the
Company's knowledge, contain any Hazardous Substance in violation of applicable
Environmental Law (provided, however, that with respect to Properties formerly
owned or operated by the Company or any Subsidiary, such representation is
limited to the period the Company or such Subsidiary owned or operated such
Properties), (iii) the Company has not received any notices, demand letters or
request for information from any Federal, state, local or foreign governmental
entity or any third party indicating that the Company may be in violation of,
or liable under, any Environmental Law in connection with the ownership or
operation of the Company's businesses, (iv) there are no civil, criminal or
administrative actions, suits, demands, claims, hearings, investigations or
proceedings pending or, to the Company's knowledge, threatened against the
Company or any Subsidiary with respect to the Company or any Subsidiary or the
Properties relating to any violation, or alleged violation, of any
Environmental Law, (v) no reports have been filed, or, to the Company's
knowledge, are required to be filed, by the Company or any Subsidiary
concerning the release of any Hazardous Substance or the threatened or actual
violation of any Environmental Law on or at the Properties, (vi) to the
Company's knowledge, no Hazardous Substance has been disposed of, transferred,
released or transported from any of the Properties during the time such
Property was owned or operated by the Company or its Subsidiaries in violation
of applicable Environmental Law as in effect at the time of said activities,
(vii) there have been no environmental investigations, studies, audits, tests,
reviews or other analyses conducted by or which are in the possession of the
Company relating to the Company or any Subsidiary or the Properties which have
not been delivered to the Banks prior to the date hereof, (viii) there are no
underground storage tanks on, in or under any of the Properties and no
underground storage tanks have been closed or removed from any Properties which
are or have been in the ownership of the Company or any Subsidiary (provided,
however, that with respect to Properties formerly owned or operated by the
Company or any Subsidiary, the representations in this subsection (viii) are
limited to the period the Company owned or operated such Properties), (ix)
there is no friable asbestos present in any Property presently owned or
operated by the Company or any Subsidiary, and no asbestos has been removed
from any Property while such Property was owned or operated by the Company, (x)
none of the Properties has been used at any time by the Company or any
Subsidiary as a sanitary landfill or hazardous waste disposal site and (xi)
neither the Company nor any Subsidiary has incurred, and, to the Company's
knowledge, none of the Properties are presently subject to, any material
liabilities (fixed or contingent) relating to any suit, settlement, court
order, administrative order, judgment or claim asserted or arising under any
Environmental Law.
(t) Insurance. All of the properties (other than properties leased to
other Persons) and operations of the Company and its Subsidiaries of a
character usually insured by companies of established reputation engaged in the
same or a similar business similarly situated are adequately insured, by
financially sound and reputable insurers, against loss or damage of the kinds
and in amounts customarily insured against by such Persons, and the Company and
its Subsidiaries carry, with such insurers in customary amounts, such other
insurance as is usually carried by companies of established reputation engaged
in the same or a similar business similarly situated.
ARTICLE VI
CONDITIONS OF LENDING
Section 6.01. Conditions to the Availability of the Commitment. The
obligations of each Bank hereunder are subject to, and the Banks' Commitment
shall not become available until the date on which, each of the following
conditions precedent shall have been satisfied or waived in writing by each of
the Banks, and upon such satisfaction or waiver each Bank will give a written
confirmation of the same to the Company on request:
(a) Credit Agreement. The Agent shall have received this Agreement duly
executed and delivered by each of the Banks and the Company.
(b) Notes. The Agent on behalf of each Bank shall have received Notes
in the principal amounts of each such Bank's Commitment, duly executed and
delivered by the Company.
(c) Good Standing Certificates. The Agent on behalf of the Banks shall
have received from the Company copies of good standing certificates, dated
within five (5) days prior to the date hereof, confirming the Company's
representation as to good standing in Section 5.01(b).
(d) Secretary's Certificate. The Agent on behalf of the Banks shall have
received from the Company a certificate from the Secretary or Assistant
Secretary of the Company, dated as of the date hereof, (i) certifying the
incumbency of the officers executing the Credit Documents and all related
documentation, (ii) attaching and certifying the resolutions of the Board of
Directors of the Company relating to the execution, delivery and performance
of this Agreement, and (iii) attaching and certifying the Articles of
Incorporation and By-laws of the Company.
(e) Opinion of Company Counsel. The Agent shall have received a
favorable written opinion, dated the date hereof, of Latham & Watkins, special
counsel for the Company, in substantially the form of Exhibit D, and of Semmes,
Bowen & Semmes, special Maryland counsel for the Company, in substantially the
form of Exhibit E.
(f) Other Documents. The Agent shall have received such other
certificates and documents as the Agent and the Banks reasonably may require.
(g) Litigation. There shall not be pending or threatened any action or
proceeding before any court or administrative agency relating to the lending
transactions contemplated by this Agreement or any Note which, in the judgment
of the Agent or any Bank, could materially impair the ability of the Company
to perform its obligations hereunder or thereunder.
(h) Agency Fee. The Agent shall have received an Agency Fee (the "Agency
Fee"), which is due and payable on the date hereof pursuant to a letter
agreement, dated the date hereof, between the Company and the Agent.
(i) Termination of Prior Revolving Credit Agreement. Evidence
satisfactory to the Agent that the Amended and Restated Credit Agreement, dated
as of December 15, 1991, among the Company and the Banks party thereto, shall
have been terminated and be of no further force and effect and any and all
amounts outstanding thereunder or otherwise payable pursuant thereto shall have
been paid.
Section 6.02. Conditions to All Loans. The obli-gations of each Bank in
connection with each Loan (including the Initial Loan) are subject to the
conditions precedent that, on the date of each such Loan and after giving
effect thereto, each of the following conditions precedent shall have been
satisfied or waived in writing by each Bank, and upon such satisfaction or
waiver each Bank will give a written confirmation of the same to the Company
on request:
(a) Loan Request. For each Loan, the Agent shall have received a Loan
Request in substantially the form of Exhibit B.
(b) No Default. No Default or Event of Default shall have occurred and
be continuing, and the Agent shall have received from the Company a certificate
to that effect signed by an authorized officer of the Company.
(c) Representations and Warranties; Covenants. The representations and
warranties contained in Article V (other than representations and warranties
that speak as of a specific date) shall be true and correct with the same
effect as though such representations and warranties had been made at the time
of such Loan, and the Agent shall have received from the Company a certificate
to that effect signed by an authorized officer of the Company.
ARTICLE VII
COVENANTS
Section 7.01. Affirmative Covenants. Until the Termination Date, and
thereafter until payment in full of the Notes and all reimbursement obligations
and performance of all other obligations of the Company hereunder (other than
Unmatured Surviving Obligations), the Company will:
(a) Financial Statements; Compliance Certificates. Furnish to the Agent
and to each Bank (i) as soon as available, but in no event more than 60 days
following the end of each fiscal quarter, copies of all consolidated quarterly
balance sheets, income statements and other financial statements and reports
of the Company and its Subsidiaries, prepared in a format and in scope
consistent with the financial statements and reports of the Company referenced
in Section 5.01(h), (ii) as soon as available, but in no event more than 105
days following the end of each fiscal year, a copy of the annual consolidated
audit report and financial statements relating to the Company and its
Subsidiaries, certified by Arthur Andersen & Co., one of the other "Big Six"
accounting firms or another independent certified public accountant reasonably
satisfactory to the Agent, prepared in a format and in scope consistent with
the December 31, 1993 financial statements and reports of the Company
referenced in Section 5.01(h), (iii) as soon as available, but in no event
later than 60 days following the end of each fiscal year, an annual forecast
for the then-current fiscal year, prepared in a manner and in the form of the
forecast provided on the date of this Agreement or in such other form as is
reasonably acceptable to the Agent and the Required Banks, (iv) together with
each of the financial statements delivered pursuant to clauses (i) and (ii) of
this Section 7.01(a), a certificate of the Chief Financial Officer of the
Company stating whether as of the last date of such financial statements any
event or circumstance exists which constitutes a Default or Event of Default
and, if so, stating the facts with respect thereto, together with calculations,
where applicable, which establish the Company's (and where applicable, each of
the Company's Subsidiaries') compliance therewith, (v) promptly upon receipt
thereof, copies of any reports and management letters submitted to the Company
or any of its Subsidiaries or their accountants in connection with any annual
or interim audit of the books of the Company or its Subsidiaries, together with
the responses thereto, if any, and (vi) such additional information, reports
or statements as the Agent and the Banks from time to time may reasonably
request.
(b) Taxes. Pay and discharge, and cause each of its Subsidiaries to pay
and discharge, all taxes, assessments and governmental charges upon it, its
income and its properties prior to the date on which penalties are attached
thereto, (i) unless and to the extent that (x) such taxes, assessments and
governmental charges shall be contested in good faith and by appropriate
proceedings by the Company or such Subsidiary, as the case may be, (y) adequate
reserves (in accordance with GAAP) are maintained by the Company or such
Subsidiary, as the case may be, with respect thereto, and (z) any failure to
pay and discharge such taxes, assessments and governmental charges could not
have a Material Adverse Effect or (ii) unless and to the extent that any
failure to pay and discharge such taxes, individually or in the aggregate,
would not be material and adverse to the Company and its Subsidiaries taken as
a whole.
(c) Corporate Existence. Except as permitted by Section 7.02(d) or (e),
maintain, and cause each of its Subsidiaries to maintain, its existence in good
standing and qualify and remain qualified to do business in each jurisdiction
in which the character of the properties owned or leased by it therein or in
which the transaction of its business is such that the failure to maintain such
existence or to qualify would have a Material Adverse Effect.
(d) Maintenance of Records. Will maintain, and will cause each of its
Subsidiaries to maintain, complete and accurate books and records in which full
and correct entries in conformity with GAAP shall be made of all dealings and
transactions in its respective business and activities.
(e) Inspection. Permit, and cause each of its Subsidiaries to permit,
the Agent and the Banks to have one or more of their officers and employees,
or any other Person designated by the Agent or the Banks, visit and inspect any
of the properties of the Company and its Subsidiaries (upon reasonable request
and notice and in accordance with the agreement, if any, relating to any such
property) and to examine the minute books, books of account and other records
of the Company and its Subsidiaries and make copies thereof or extracts
therefrom, and discuss its affairs, finances and accounts with its officers
and, at the request of the Agent or the Banks, with the Company's independent
accountants, during normal business hours and at such other reasonable times
and as often as the Agent or the Banks reasonably may desire.
(f) Conduct of Business. Engage in as its principal business investing
in health care related facilities in the United States.
(g) Notification of Defaults and Adverse Developments. Notify the Agent
(i) promptly, and in any event not later than five Business Days after the
discovery by any officer of the Company of the occurrence of any Default or
Event of Default; (ii) promptly, and in any event not later than five Business
Days after the discovery by any officer of the Company of the occurrence of a
Material Adverse Change; (iii) promptly, and in any event not later than ten
Business Days after the discovery by any officer of the Company of any material
litigation or proceedings that are instituted or (to the knowledge of any
officer of the Company) threatened against the Company or its Subsidiaries or
any of their respective assets and (iv) promptly, and in any event not later
than five Business Days after the discovery by any officer of the Company of
the occurrence of each and every event which would be an event of default (or
an event which with the giving of notice or lapse of time or both would be an
event of default) under any Indebtedness of the Company or any of its
Subsidiaries in a principal amount in excess of $5,000,000, such notice to
include the names and addresses of the holders of such Indebtedness and the
amount thereof. Upon receipt of any such notice of default or adverse
development, the Agent shall forthwith give notice to each Bank of the details
thereof.
(h) Notice of ERISA Events. Within 10 days after the Company or any
ERISA Affiliates knows that any of the events described in the succeeding two
sentences have occurred and such occurrence or occurrences, individually or in
the aggregate, could be material and adverse to the Company and its
Subsidiaries taken as a whole, the Company shall furnish to the Agent a
statement signed by a senior officer of the Company describing such event in
reasonable detail and the action, if any, proposed to be taken with respect
thereto. The events referred to in the preceding sentence are, with respect
to any Single-Employer Plan: (i) any reportable event described in Section
4043 of ERISA, other than a reportable event for which the 30-day notice
requirement has been waived by the PBGC; (ii) the filing with any affected
party as such term is defined in Section 4001 of ERISA of a notice of intent
to terminate the Plan; (iii) receipt of notice of an application by the PBGC
to institute proceedings to terminate the Plan pursuant to Section 4042 of
ERISA; (iv) withdrawal from or termination of the Plan during a plan year for
which the Company or any ERISA Affiliate is or would be subject to liability
under Sections 4063 or 4064 of ERISA; (v) cessation of operations by the
Company or any ERISA Affiliate at a facility under the circumstances described
in Section 4062(e) of ERISA; (vi) adoption of an amendment to a Plan which is
a Single-Employer Plan which would require security to be given to the Plan
pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA; and (vii)
failure by the Company or any ERISA Affiliate to make payment to a Single-
Employer Plan which would give rise to a lien in favor of the Plan under
Section 302(f) of ERISA. Such events shall also include receipt of notice of
withdrawal liability pursuant to Section 4202 of ERISA.
(i) Environmental Matters. (i) Comply, and cause its Subsidiaries to
comply, in all material respects with all applicable Environmental Laws, (ii)
notify the Agent promptly after receiving notice or becoming aware of any
Adverse Environmental Condition or Environmental Claim that could have a
Material Adverse Effect, and (iii) promptly forward to Agent a copy of any
Environmental Claim, order, notice, permit, application, or any other
communication or report received by Company or any of its Subsidiaries in
connection with any such matters as they may affect such premises, if material.
(j) Insurance on Leased Properties. Use its, and cause its Subsidiaries
to use their, commercially reasonable best efforts to ensure that each lessee
of a property owned in whole or in part, directly or indirectly, by the Company
or any Subsidiary, and each mortgagor of a property on which the Company or any
Subsidiary holds a mortgage, has, and until the Termination Date will keep, in
place adequate insurance which names the Company or such Subsidiary as a loss
payee. For the purposes of the preceding sentence "adequate insurance" shall
mean insurance, with financially sound and reputable insurers in such amounts
and insuring against such risks as are customarily maintained by similar
businesses.
(k) Further Assurances. The Company agrees to do all acts and things,
as may be required by law or as, in the reasonable judgement of the Agent, may
be necessary or advisable to carry out the intent and purpose of this
Agreement.
Section 7.02. Negative Covenants. Until the Termination Date, and
thereafter until payment in full of the Notes and all reimbursement obligations
and performance of all other obligations of the Company hereunder (other than
Unmatured Surviving Obligations), the Company will not:
(a) Secured Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness of the Company secured by mortgages, encumbrances or Liens, except
Indebtedness secured by mortgages, encumbrances or Liens which, together with
the Indebtedness of the Subsidiaries permitted under Section 7.02(b), does not
exceed 40% of Consolidated Total Assets, provided, however, that the amount of
any such secured Indebtedness that is used to repay unsecured Indebtedness of
the Company and its Subsidiaries (other than Indebtedness to the Banks
hereunder) shall not exceed 20% of Consolidated Total Assets.
(b) Subsidiary Indebtedness. Permit any Subsidiary to create, incur,
assume or suffer to exist any Indebtedness, except Indebtedness which, together
with outstanding Indebtedness of the Company permitted under Section 7.02(a)
and all outstanding Indebtedness of other Subsidiaries, does not exceed 40% of
Consolidated Total Assets.
(c) Mortgages and Pledges. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to exist, any
Lien of any kind upon or in any of its property or assets, whether now owned
or hereafter acquired, other than (i) Permitted Encumbrances and (ii) Liens
granted in order to secure Indebtedness permitted under Section 7.02(a) or
Section 7.02(b); provided, however, that the aggregate value of property
subject to Liens granted pursuant to clause (ii) shall not exceed 40% of Total
Consolidated Assets.
(d) Merger, Consolidation or Acquisition of Assets. Enter into any
merger or consolidation or acquire all or substantially all of the assets of
any person, firm, joint venture or corporation, or permit any Subsidiary so to
do, except that: (i) a Wholly owned Subsidiary may be merged or consolidated
with one or more other Wholly owned Subsidiaries or into the Company; (ii) the
Company or any Subsidiary may merge, consolidate or acquire assets in the
ordinary course of its business; (iii) the Company may be merged or
consolidated with other entities so long as: (A) the Company is the surviving
corporation of such merger or consolidation; (B) at the time of such merger or
consolidation and immediately after giving effect thereto, no Default or Event
of Default shall have occurred and be continuing; and (C) the surviving
corporation is engaged substantially in the same line of business as the
Company; and (iv) the Company or any Subsidiary may acquire any interest in any
person, firm, joint venture or corporation so long as (A) the amount of the
total consideration (including any Indebtedness or liabilities incurred or
assumed in connection therewith) paid in connection with such merger or
consolidation of such acquired interest is not greater than 10% of Consolidated
Stockholders' Equity, determined according to the last financial statements
delivered pursuant to Section 7.01(a) and (B) the acquired entity is engaged
in substantially the same line of business as the Company.
(e) Sales of Assets. Sell, lease or otherwise dispose of all or any
substantial part of its assets, or permit any Subsidiary so to do, other than
in the ordinary course of the Company's business or as otherwise expressly
permitted hereunder.
(f) Loans and Investments. Purchase or acquire the obligations or stock
of, or any other interest in, or make loans or advances to, any Person, or
permit any Subsidiary so to do, except (i) securities issued or fully
guaranteed or insured by the United States Government or any agency thereof and
backed by the full faith and credit of the United States having a maturity of
not more than one year from the date of acquisition; (ii) marketable
obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof
maturing within one year of the date of acquisition thereof and, at the time
of acquisition, rated at least A by S&P or A by Moody's; (iii) repurchase
agreements, tax exempt investments, certificates of deposit, time deposits,
Eurodollar time deposits or bankers' acceptances issued by (x) any Bank, (y)
any United States commercial bank having combined capital and surplus of note
less than $100,000,000 and having commercial paper rated at least A-1 by S&P
or P-1 by Moody's or [(z) any other Bank having an IBCA Bank Analysis rating
of B or better]; (iv) certificates of deposit in an amount less than or equal
to $100,000 in the aggregate issued by any other bank insured by the Federal
Deposit Insurance Corporation; (v) commercial paper or bankers' acceptances of
an issuer rated at least A-1 by S&P or P-1 by Moody's; (vi) money market funds
invested in one or more of (i) through (v) above; (vii) loans to and
investments by the Company in any Subsidiary or loans from any Subsidiary to
the Company; and (viii) any such loans or investments made in the ordinary
course of the Company's or a Subsidiary's business.
(g) Transactions with Affiliates. Enter into any transactions, including
without limitation, the purchase, sale or exchange of property or the rendering
of any service, with any Affiliate, or permit any Subsidiary so to do, except
in the ordinary course of and pursuant to the reasonable requirements of its
business and upon fair and reasonable terms no less favorable to the Company
or such Subsidiary, as the case may be, than could be obtained in an arm's
length transaction with a person not an Affiliate.
(h) Stock and Equity Interests of Subsidiaries. Sell or otherwise
dispose of any shares of capital stock or other equity interests of any
Subsidiary (except (x) in connection with a merger or consolidation of a Wholly
owned Subsidiary permitted by Section 7.02(d) or with the dissolution of any
Subsidiary or (y) a sale in accordance with Section 7.02(e) of any equity
interest in any Subsidiary that is not material to the Company and its
Subsidiaries taken as a whole) or permit any Subsidiary to issue any additional
shares of its capital stock or other equity interests except pro rata to its
stockholders or equity holders.
(i) Environmental Matters. Violate any Environmental Law or incur any
liabilities under any Environmental Law, except to the extent that any such
violation or incurrence could not have a Material Adverse Effect.
(j) Loans and Money Market Loans. Incur or suffer to remain outstanding,
or permit the Subsidiaries to incur or suffer to remain outstanding at any
time, Loans plus Money Market Loans in an aggregate amount in excess of
$100,000,000.
Section 7.03. Financial Covenants. Until the Termination Date, and
thereafter until payment in full of the Notes and all reimbursement obligations
and performance of all other obligations of the Company hereunder (other than
Unmatured Surviving Obligations),
(a) Consolidated Stockholders' Equity. The Company will maintain
Consolidated Stockholders' Equity of not less than $200,000,000.
(b) Consolidated Senior Debt to Consolidated Stockholders' Equity Ratio.
The Company will maintain a ratio of Consolidated Senior Debt to Consolidated
Stockholders' Equity of not greater than 1.50:1.00.
(c) Consolidated Debt to Consolidated Stockholders' Equity Ratio. The
Company will maintain a ratio of Consolidated Debt to Consolidated
Stockholders' Equity of not greater than 2.00:1.00.
(d) Interest Coverage Ratio. The Company will not permit the ratio of
(i) the sum of Consolidated Fundsfrom Operations and Consolidated Interest
Expense to (ii) Consolidated Interest Expense for the four quarter period
ending on the last day of each fiscal quarter to be less than 2.25:1.00.
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.01. Events of Default. If one or more of the following events
(each, an "Event of Default") shall occur:
(a) Default shall be made in the payment of any installment of principal
of any Note when due and payable, whether at maturity, by notice of intention
to prepay or otherwise; or default shall be made in the payment of any
installment of interest upon any Note when due and payable, and such default
shall have continued for five days; or
(b) Default shall be made in the payment of the Facility Fee or any
other fee or amount payable hereunder when due and payable and such default
shall have continued for five days; or
(c) Default shall be made in the due observance or performance of
any term, covenant, or agreement contained in Section 7.01(g) or in Section
7.03; or
(d) Default shall be made in the due observance or performance of
any other term, covenant or agreement contained in this Agreement, and such
default shall have continued unremedied for a period of 30 days after any
officer of the Company becomes aware, or should have become aware, of such
default; or
(e) Any representation or warranty made or deemed made by the
Company herein or any statement or representation made in any certificate or
report delivered by or on behalf of the Company in connection herewith or in
connection with any Note shall prove to have been false or misleading in any
material respect when made; or
(f) Any obligation (other than its obligation hereunder) of the
Company or any of its Subsidiaries for the payment of Indebtedness in excess
of $5,000,000 is not paid when due or within any grace period for the payment
therefor or becomes or is declared to be due and payable prior to the expressed
maturity thereof, or there shall have occurred an event which, with the giving
of notice or lapse of time, or both, would cause any such obligation to become,
or allow any such obligation to be declared to be, due and payable; or
(g) An involuntary case or other proceeding shall be commenced
against the Company or any Subsidiary seeking liquidation, reorganization or
other relief with respect to it or its debts under any applicable Federal or
State bankruptcy, insolvency, reorganization or similar law now or hereafter
in effect or seeking the appointment of a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of it or any substantial
part of its property, and such involuntary case or other proceeding shall
remain undismissed and unstayed, or an order or decree approving or ordering
any of the foregoing shall be entered and continued unstayed and in effect, in
any such event, for a period of 60 days; or
(h) The commencement by the Company or any of its Subsidiaries of
a voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or the consent
by any of them to the entry of a decree or order for relief in respect of the
Company or any of its Subsidiaries in an involuntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against any of them, or the filing by any of them of a petition or
answer or consent seeking reorganization or relief under any applicable Federal
or State law, or the consent by any of them to the filing of such petition or
to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the Company
or any of its Subsidiaries or any substantial part of their respective
property, or the making by any of them of an assignment for the benefit of
creditors, or the admission by any of them in writing of inability to pay their
debts generally as they become due, or the taking of corporate action by the
Company or any of its Subsidiaries in furtherance of any such action; or
(i) One or more judgments against the Company or any of its
Subsidiaries or attachments against its property, which in the aggregate exceed
$5,000,000, or the operation or result of which could be to interfere
materially and adversely with the conduct of the business of the Company or any
of its Subsidiaries, remain unpaid, unstayed on appeal, undischarged, unbonded,
or undismissed for a period of 60 days; or
(j) With respect to any Single-Employer Plan, any of the following
shall occur: (A) the filing with any affected party as such term is defined
in Section 4001 of ERISA of a notice of intent to terminate the Plan, or
receipt of notice of an application by the PBGC to institute proceedings to
terminate the Plan pursuant to Section 4042 of ERISA; in each case, if the
amount of unfunded benefit liabilities, as such term is defined in Section
4001(a)(18) of ERISA, of the Plan as of the date such event occurs is more than
$5,000,000, (B) the Company or any ERISA Affiliate incurs liability under
Sections 4062(e), 4063 or 4064 of ERISA in an amount in excess of $5,000,000,
(C) an amendment is adopted to the Plan which would require security to be
given to the Plan pursuant to Section 401(a)(29) of the Code or Section 307
of ERISA in an amount in excess of $5,000,000, or (D) the Company or any ERISA
Affiliate fails to make a payment to the Plan which would give rise to a lien
in favor of the Plan under Section 302(f) of ERISA in an amount in excess of
$5,000,000; or
(k) Any court or governmental or regulatory authority shall have
enacted, issued, promulgated, enforced or entered any statute, rule,
regulation, judgment, decree, injunction or other order (whether temporary,
preliminary or permanent) which is in effect and which prohibits, enjoins or
otherwise restricts in a manner that would have a Material Adverse Effect on
any of the lending transactions contemplated under the Credit Documents; or
(l) The Company fails to maintain its status as a "real estate
investment trust", as such term is defined in the Code; then (i) upon the
happening of any of the foregoing Events of Default, the obligation of the
Banks to make any further Loans under this Agreement shall terminate upon
declaration to that effect delivered by the Agent or the Required Banks to the
Company and (ii) upon the happening of any of the foregoing Events of Default
which shall be continuing, the Notes shall become and be immediately due and
payable upon declaration to that effect delivered by the Agent or the Required
Banks to the Company; provided that upon the happening of any event specified
in Section 8.01(g) or (h), the Notes shall become immediately due and payable
and the obligation of the Banks to make any further Loans hereunder shall
terminate without declaration or other notice to the Company. The Company
expressly waives any presentment, demand, protest or other notice of any kind.
ARTICLE IX
THE AGENT AND THE BANKS
Section 9.01. The Agency and Co-Agency. (a) Each Bank appoints The Bank
of New York as its Agent hereunder and irrevocably authorizes the Agent to take
such action on its behalf and to exercise such powers hereunder as are
specifically delegated to the Agent by the terms hereof, together with such
powers as are reasonably incidental hereto, and the Agent hereby accepts such
appointment subject to the terms hereof. The relationship between the Agent
and the Banks shall be that of agent and principal only and nothing herein
shall be construed to constitute the Agent a trustee for any Bank nor to impose
on the Agent duties or obligations other than those expressly provided for
herein.
(b) Each Bank appoints NationsBank as the Co-Agent hereunder and the
Co-Agent hereby accepts such appointment subject to the terms hereof. The Co-
Agent, as such, shall have no duties or obligations whatsoever under this
Agreement or any Loan Document or any other document or any matter related
hereto or thereto, but shall nevertheless be entitled to all of the indemnities
and other protection afforded to the Administrative Agent under this Article
IX.
Section 9.02. The Agent's Duties. The Agent shall promptly forward to
each Bank copies, or notify each Bank as to the contents, of all notices and
other communications received from the Company pursuant to the terms of this
Agreement and the Notes and, in the event that the Company fails to pay when
due the principal of or interest on any Loan, the Agent shall promptly give
notice thereof to the Banks. As to any other matter not expressly provided for
herein or therein, the Agent shall have no duty to act or refrain from acting
with respect to the Company, except upon the instructions of the Required
Banks. The Agent shall not be bound by any waiver, amendment, supplement, or
modification of this Agreement or any Note which affects its duties hereunder
and thereunder, unless it shall have given its prior written consent thereto.
The Agent shall have no duty to ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants or agreements binding on
the Company pursuant to this Agreement or any Note nor shall it be deemed to
have knowledge of the occurrence of any Default or Event of Default (other than
a failure of the Company to pay when due the principal or interest on any
Loan), unless it shall have received written notice from the Company or a Bank
specifying such Default or Event of Default and stating that such notice is a
"Notice of Default".
Section 9.03. Sharing of Payment and Expenses. All funds for the account
of the Banks received by the Agent in respect of payments made by the Company
pursuant to, or from any Person on account of, this Agreement or any Note shall
be distributed forthwith by the Agent among the Banks, in like currency and
funds as received, ratably in proportion to their respective interests therein.
In the event that any Bank shall receive from the Company or any other source
any payment of, on account of, or for or under this Agreement or any Note
(whether received pursuant to the exercise of any right of set-off, banker's
lien, realization upon any security held for or appropriated to such obligation
or otherwise as permitted by law) other than in proportion to its Pro Rata
Share, then such Bank shall purchase from each other Bank so much of its
interest in obligations of the Company as shall be necessary in order that each
Bank shall share such payment with each of the other Banks in proportion to
each Bank's Pro Rata Share; provided that no Bank shall purchase any interest
of any Bank that does not, to the extent that it may lawfully do so, set-off
against the balance of any deposit accounts maintained with it the obligations
due to it under this Agreement. In the event that any purchasing Bank shall
be required to return any excess payment received by it, the purchase shall be
rescinded and the purchase price restored to the extent of such return, but
without interest.
Section 9.04. The Agent's Liabilities. Each of the Banks and the Company
agrees that (i) neither the Agent in such capacity nor any of its officers or
employees shall be liable for any action taken or omitted to be taken by any
of them hereunder except for its or their own gross negligence or wilful
misconduct, (ii) neither the Agent in such capacity nor any of its officers or
employees shall be liable for any action taken or omitted to be taken by any
of them in good faith in reliance upon the advice of counsel, independent
public accountants or other experts selected by the Agent, and (iii) the Agent
in such capacity shall be entitled to rely upon any notice, consent,
certificate, statement or other document (including any telegram, cable, telex,
facsimile or telephone transmission) believed by it to be genuine and correct
and to have been signed and/or sent by the proper Persons.
Section 9.05. The Agent as a Bank. The Agent shall have the same rights
and powers hereunder as any other Bank and may exercise the same as though it
were not the Agent, and the terms "Bank" or "Banks", unless the context
otherwise indicated, include the Agent in its individual capacity. The Agent
may, without any liability to account, maintain deposits or credit balances
for, invest in, lend money to and generally engage in any kind of banking
business with the Company or any Subsidiary or affiliate of the Company as if
it were any other Bank and without any duty to account therefor to the other
Banks.
Section 9.06. Bank Credit Decision. Neither the Agent nor any of its
officers or employees has any responsibility for, gives any guaranty in respect
of, nor makes any representation to the Banks as to, (i) the condition,
financial or otherwise, of the Company or any Subsidiary thereof or the truth
of any representation or warranty given or made herein or in any other Credit
Document, or in connection herewith or therewith or (ii) the validity,
execution, sufficiency, effectiveness, construction, adequacy, enforceability
or value of this Agreement or any other Credit Document or any other document
or instrument related hereto or thereto. Except as specifically provided
herein and in the other Credit Documents to which the Agent is a party, the
Agent shall have no duty or responsibility, either initially or on a continuing
basis, to provide any Bank with any credit or other information with respect
to the operations, business, property, condition or creditworthiness of the
Company or any of its Subsidiaries, whether such information comes into the
Agent's possession on or before the date hereof or at any time thereafter.
Each Bank acknowledges that it has, independently and without reliance upon the
Agent or any other Bank, based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Bank also acknowledges that it will independently and
without reliance upon the Agent or any other Bank, 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 this Agreement or any
Note.
Section 9.07. Indemnification. Each Bank agrees (which agreement shall
survive payment of the Loans and the Notes) to indemnify the Agent, to the
extent not reimbursed by the Company, ratably in accordance with their
respective Commitments, from and against any and all liabilities, obligations,
losses, claims, damages, penalties, actions, judgments, suits, costs, expenses
or disbursements of any kind or nature whatsoever which may be imposed on,
incurred by, or asserted against the Agent in any way relating to or arising
out of this Agreement or any other Credit Document, or any action taken or
omitted to be taken by the Agent hereunder or thereunder; provided that no Bank
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the gross negligence or wilful misconduct of the Agent or any
of its officers or employees. Without limiting the foregoing, each Bank agrees
to reimburse the Agent promptly upon demand for its ratable share of any out-
of-pocket expenses (including counsel fees) incurred by the Agent in such
capacity in connection with the preparation, execution or enforcement of, or
legal advice in respect of rights or responsibilities under, this Agreement or
any Note or any amendments or supplements hereto or thereto, to the extent that
the Agent is not reimbursed for such expenses by the Company.
Section 9.08. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Banks and the Company. Upon any such
resignation, the Required Banks shall have the right to appoint a successor
Agent. If no successor Agent shall have been so appointed by the Required
Banks and shall have accepted such appointment within 30 days after the
resigning Agent's giving of notice of resignation, or the Required Banks'
giving notice of removal, as the case may be, the resigning Agent may, on
behalf of the Banks, appoint a successor Agent, which shall be a commercial
bank organized under the laws of the United States of America or of any State
thereof and having a combined capital and surplus of at least $250,000,000.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the resigned or removed Agent, and the
resigned or removed Agent shall be discharged from its duties and obligations
under this Agreement. After any Agent's resignation hereunder as Agent, the
provisions of this Article IX shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
ARTICLE X
CONSENT TO JURISDICTION; JUDGMENT CURRENCY
Section 10.01. Consent to Jurisdiction. The Company hereby irrevocably
submits to the non-exclusive jurisdiction of the State of New York for the
purpose of any suit, action, proceeding or judgment relating to or arising out
of this Agreement and each Note. The Company hereby appoints Prentiss-Hall
Corporation System, Inc., with offices on the date hereof at 15 Columbus
Circle, New York, New York 10023, as its authorized agent on whom process may
be served in any action which may be instituted against it by the Agent or the
Banks in any state or federal court in the Borough of Manhattan, The City of
New York, arising out of or relating to any Loan or this Agreement and each
Note. Service of process upon such authorized agent and written notice of such
service to the Company shall be deemed in every respect effective service of
process upon the Company, and the Company hereby irrevocably consents to the
jurisdiction of any such court in any such action and to the laying of venue
in the Borough of Manhattan, The City of New York. The Company hereby
irrevocably waives any objection to the laying of the venue of any such suit,
action or proceeding brought in the aforesaid courts and hereby irrevocably
waives any claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum. Notwithstanding the
foregoing, nothing herein shall in any way affect the right of the Agent or any
Bank to bring any action arising out of or relating to the Loans or this
Agreement and each Note in any competent court elsewhere having jurisdiction
over the Company or its property.
ARTICLE XI
MISCELLANEOUS
Section 11.01. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, UNITED
STATES OF AMERICA.
Section 11.02. Set-off. Each Bank is authorized to set off and apply any
and all deposits at any time held by such Bank against obligations of the
Company under the Credit Documents.
Section 11.03. Expenses. The Company agrees to pay (i) all reasonable
out-of-pocket expenses of the Agent (including the reasonable fees and expenses
of Sullivan & Cromwell, as counsel to the Agent) in connection with the
preparation of this Agreement and the other Credit Documents and any
amendments, supplements or modifications hereto or thereto, (ii) all reasonable
out-of-pocket expenses incurred by the Agent and any Bank, including reasonable
fees and disbursements of counsel, in connection with the execution,
administration and enforcement of any provisions of this Agreement, the Notes
or any amendment or supplement hereto or thereto and (iii) all reasonable out-
of-pocket expenses of the Agent, including reasonable fees and disbursements
of counsel, in connection with the syndication of the Loans. The Company shall
pay any transfer taxes, documentary taxes, assessments or charges made by any
Governmental Authority by reason of the execution and delivery of this
Agreement or the Notes.
Section 11.04. Amendments. Any provision of this Agreement or the Notes
may be amended or waived if, but only if, such amendment or waiver is in
writing and is signed by the Company and the Required Banks (and, if the rights
or duties of the Agent are affected thereby, by the Agent); provided that no
such amendment, waiver or modification shall, unless signed by all the Banks,
(i) increase or decrease the Commitment of any Bank, subject any Bank to any
additional obligation or change the several nature or the obligations of each
Bank, (ii) reduce the principal of or rate of interest on any Loan (other than
interest payable pursuant to Section 3.05) or any fees hereunder, (iii) except
as otherwise provided in Section 11.12, postpone the date fixed for any payment
of principal of or interest on any Loan or any fees hereunder or for any
reduction or termination of any Commitment, (iv) except as otherwise may result
from actions taken in accordance with Section 11.12, change the percentage of
any of the Commitments or of the aggregate unpaid principal amount of the
Notes, or the number of Banks, which shall be required for the Banks or any of
them to take any action under this Section or any other provision of this
Agreement, or (v) amend or waive the provisions of Article IV or of this
Section 11.04.
Section 11.05. Cumulative Rights and No Waiver. Each and every right
granted to the Agent and the Banks hereunder or under any other document
delivered hereunder or in connection herewith, or allowed them by law or
equity, shall be cumulative and may be exercised from time to time. No failure
on the part of the Agent or any Bank to exercise, and no delay in exercising,
any right will operate as a waiver thereof, nor will any single or partial
exercise by the Agent or any Bank of any right preclude any other or future
exercise thereof or the exercise of any other right.
Section 11.06. Notices. Any communication, demand or notice to be given
hereunder or with respect to the Notes will be duly given when delivered in
writing or by telecopy to a party at its address as indicated below, except
that notices from the Company pursuant to Section 2.02 will not be effective
until received by the Agent.
A communication, demand or notice given pursuant to this Section 11.06
shall be addressed:
If to the Company, at
10990 Wilshire Boulevard
Suite 1200
Los Angeles, California 90024
Telecopy: (310) 444-7817
Attention: Treasurer
with copies to:
Latham & Watkins
633 West Fifth Street
Suite 4000
Los Angeles, California 90071
Attention: Glen B. Collyer/David H. Vena
If to the Agent, at its address as indicated on the signature pages
hereof, with a copy to:
Sullivan & Cromwell
444 South Flower Street
Los Angeles, California 90071
Telecopy: (213) 683-0457
Attention: Alison Ressler
If to any Bank, at its address as indicated on the signature pages hereof.
Unless otherwise provided to the contrary herein, any notice which is
required to be given in writing pursuant to the terms of this Agreement may be
given by telex, telecopy or facsimile transmission.
Section 11.07. Separability. In case any one or more of the provisions
contained in this Agreement shall be invalid, illegal or unenforceable in any
respect under any law, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
Section 11.08. Assignments and Participations. (a) This Agreement shall
be binding upon and inure to the benefit of the Company and the Banks and their
respective successors and assigns, except that the Company may not assign any
of its rights hereunder without the prior written consent of the Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment
or any or all of its Loans. Each Bank agrees to give to the Company, with a
copy to the Agent, prior written notice of any grant of a participating
interest hereunder, which notice shall include the name of the Participant and
the amount of the interest being granted. In the event of any such grant by
a Bank of a participating interest to a Participant, whether or not upon notice
to the Company and the Agent, such Bank shall remain responsible for the
performance of its obligations hereunder, and the Company and the Agent shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement. Any agreement pursuant to
which any Bank may grant such a participating interest shall provide that such
Bank shall retain the sole right and responsibility to enforce the obligations
of the Company hereunder including the right to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
participation agreement may provide that such Bank will not agree to any
modification, amendment or waiver of this Agreement described in clauses (i)
through (vi), inclusive, of Section 11.04 without the consent of the
Participant. Subject to Section 11.08(e), the Company agrees that each
Participant shall be entitled to the benefits of Sections 4.03, 4.04 and 11.04
with respect to its participating interest. An assignment or other transfer
which is not permitted by clause (c) below shall be given effect for purposes
of this Agreement only to the extent of a participating interest granted in
accordance with this clause (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part of all, of its
rights and obligations under this Agreement and the Notes, and such Assignee
shall assume such rights and obligations, pursuant to an instrument executed
by such Assignee and such transferor Bank, with (and subject to) the signed
consent of the Company and the Agent (which consent shall not be unreasonably
withheld); provided, however, any such assignment shall be in the minimum
aggregate amount of $10,000,000; provided, further, that the foregoing consent
requirement shall not be applicable in the case of, and this subsection (c)
shall not restrict, an assignment or other transfer by any Bank to an affiliate
of such Bank or to a Federal Reserve Bank. Upon (i) execution and delivery of
such an instrument, (ii) payment by such Assignee to such transferor Bank of
an amount equal to the purchase price agreed between such transferor Bank and
such Assignee and (iii) payment by the transferee Bank or transferor Bank to
the Agent of an administrative fee in the amount of $1,500, such Assignee shall
be a Bank party to this Agreement and shall have all the rights and obligations
of a Bank with a Commitment as set forth in such instrument of assumption, and
the transferor Bank shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party shall be
required. Upon the consummation of any assignment pursuant to this subsection
(c), the transferor Bank, the Agent and the Company shall make appropriate
arrangements so that, if required, new Notes are issued to the Assignee.
(d) No Assignee, Participant or other transferee of any Bank's rights
shall be entitled to receive any greater payment under Section 4.03 or 4.04
than such Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Company's prior written
consent or by reason of the provisions of Section 4.04 requiring such Bank to
designate a different lending office under certain circumstances or at a time
when the circumstances giving rise to such payment did not exist.
(e) No Participant of any Bank shall be entitled to receive any greater
payment under Section 4.03, Section 4.04 or Section 11.04 than such Bank would
have been entitled to receive if it had not granted a participation to such
Participant.
Section 11.09. WAIVER OF JURY TRIAL. THE COMPANY, THE AGENT AND EACH OF
THE BANKS HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS
AGREEMENT, THE NOTES OR THE RELATIONSHIPS ESTABLISHED HEREUNDER.
Section 11.10. Confidentiality. Except as may be required to enforce the
rights and duties established hereunder, the parties hereto shall preserve in
a confidential manner all information received from the other pursuant to this
Agreement, the Notes and the transactions contemplated hereunder and
thereunder, and shall not disclose such information except to those persons
with which a confidential relationship is maintained (including regulators,
legal counsel, accountants, or designated agents), or where required by law.
Section 11.11. Indemnity. The Company agrees to indemnify the Agent and
each of the Banks and their respective directors, officers, employees and
agents (each such person being called an "Indemnitee") against, and to hold
each Indemnitee harmless from, any and all losses, claims, damages and
liabilities of any party other than the Company and related expenses, including
reasonable counsel fees and expenses incurred by or asserted against any
Indemnitee arising out of, in any way connected with, or as a result of (i) the
execution or delivery of this Agreement or any Note or any agreement or
instrument contemplated hereby or thereby, the performance by the parties
thereto of their respective obligations hereunder or thereunder or the
consummation of the transactions and the other transactions contemplated hereby
or thereby, (ii) the use of the proceeds of the Loans or (iii) any claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto and notwithstanding that any
claim, proceeding, investigation or litigation relating to any such losses,
claims, damages, liabilities or expenses is or was brought by a shareholder,
creditor, employee or officer of the Company; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted
from the gross negligence or wilful misconduct of any Indemnitee.
The provisions of this Section 11.11 shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement,
the consummation of the transactions contemplated hereby, the repayment of any
of the Loans, the reduction or cancellation of the Commitment, the invalidity
or unenforceability of any term or provision of this Agreement or any Note, or
any investigation made by or on behalf of the Banks. All amounts due under
this Section 11.11 shall be payable in immediately available funds upon written
demand therefor.
Section 11.12. Extension of Termination Dates; Removal of Banks;
Substitutions of Banks. (a) In order to provide for a facility with a term of
three years from the date of this Agreement and any extension thereof pursuant
to this Section 11.12, not later than January 31, 1995 and not later than each
subsequent January 31 thereafter, the Company may, at its option, request all
the Banks then party to this Agreement to extend their scheduled Termination
Dates by one calendar year by means of a letter, addressed to each such Bank
and the Agent. Each such Bank electing (in its sole discretion) so to extend
its scheduled Termination Date shall execute and deliver prior to the February
28 following such request counterparts of such letter to the Company and the
Agent, whereupon (unless Banks with an aggregate percentage of the Total
Commitment in excess of 25% decline to extend their respective scheduled
Termination Dates, in which event the Agent shall notify all the Banks
thereof), such Bank's scheduled Termination Date shall be extended to March 31
of the year immediately succeeding such Bank's then-current scheduled
Termination Date.
(b) With respect to any Bank which has declined to extend such Bank's
scheduled Termination Date and Banks with an aggregate percentage of the Total
Commitment not in excess of 25% have not declined to extend their respective
Termination Dates, the Company may in its discretion, upon not less than 30
days' prior written notice to the Agent and each Bank, remove such Bank as a
party hereto. Each such notice shall specify the date of such removal (which
shall be a Business Day), which shall thereupon become the scheduled
Termination Date for such Bank.
(c) In the event that any Bank does not extend its scheduled Termination
Date pursuant to subsection (a) above or is the subject of a notice of removal
pursuant to subsection (b) above, then, at any time prior to the
Termination Date for such Bank (a "Terminating Bank"), the Company may, at its
option, arrange to have one or more other financial institutions acceptable to
the Agent (which may be a Bank or Banks and each of which shall herein be
called a "Successor Bank") succeed to all or a percentage of the Terminating
Bank's outstanding Loans, if any, and rights under this Agreement and assume
all or a like percentage (as the case may be) of such Terminating Bank's
Commitment and other obligations hereunder, as if (i) in the case of any Bank
electing not to extend its scheduled Termination Date pursuant to subsection
(a) above, such Successor Bank had extended its scheduled Termination Date
pursuant to such subsection (a) and (ii) in the case of any Bank that is the
subject of a notice of removal pursuant to subsection (b) above, no such notice
of removal had been given by the Company. Such succession and assumption shall
be effected by means of one or more agreements supplemental to this Agreement
among the Terminating Bank, the Successor Bank, the Company and the Agent. On
and as of the effective date of each such supplemental agreement, each
Successor Bank party thereto shall be and become a Bank for all purposes of
this Agreement and to the same extent as any other Bank hereunder and shall be
bound by and entitled to the benefits of this Agreement in the same manner as
any other Bank.
(d) On the Termination Date for any Terminating Bank, such Terminating
Bank's Commitment shall terminate and, except to the extent assigned pursuant
to subsection (c) above, the Company shall pay in full all of such Terminating
Bank's Loans and all other amounts payable to such Bank hereunder, including
any amounts payable pursuant to Section 4.3 on account of such payment.
(e) To the extent that all or a portion of any Terminating Bank's
obligations are not assumed pursuant to subsection (c) above, the Total
Commitment shall be reduced on the applicable Termination Date and each Bank's
percentage of the reduced Total Commitment shall be revised pro rata to reflect
such Terminating Bank's absence.
Section 11.13. Knowledge of the Company. As used in this Agreement,
knowledge of the Company shall mean to the best of any officer's knowledge,
after a reasonable investigation.
Section 11.14. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all the counterparts shall together constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
HEALTH CARE PROPERTY
INVESTORS, INC.
By:___________________________
Name: James G. Reynolds
Title: Senior Vice
President and Chief
Financial Officer
THE BANK OF NEW YORK,
as Agent for the Banks
By:___________________________
Name: Lisa Y. Brown
Title: Vice President
Address for Notices:
One Wall Street
18th Floor
New York, NY 10286
Attn: Kalyani Bose
Agency Function
Administration
Fax: (212) 635-6365
With a copy to:
The Bank of New York
10990 Wilshire Boulevard
Suite 1700
Los Angeles, CA 90024
Attn: Lisa Y. Brown
Vice President
Fax: (310) 996-8667
Commitment: $25,000,000 THE BANK OF NEW YORK
as a Bank
By:___________________________
Name: Lisa Y. Brown
Title: Vice President
Address for Notices:
One Wall Street
18th Floor
New York, NY 10286
Attn: Kalyani Bose
Agency Function
Administration
Fax: (212) 635-6365
With a copy to:
The Bank of New York
10990 Wilshire Boulevard
Suite 1700
Los Angeles, CA 90024
Attn: Lisa Y. Brown
Vice President
Fax: (310) 996-8667
Eurodollar Lending Office:
One Wall Street
18th Floor
New York, NY 10286
Attn:
Fax:
Commitment: $10,000,000 WELLS FARGO BANK
By:___________________________
Name:
Title:
Address for Notices:
Wells Fargo Bank
420 Montgomery Street
San Francisco, CA 94163
Attn: Brian McDonald
Fax: (415) 421-1352
Eurodollar Lending Office:
Wells Fargo Bank
420 Montgomery Street
San Francisco, CA 94163
Attn: Marilyn Jones
Fax: (415) 989-4319
<PAGE>
Commitment: $10,000,000 KREDIETBANK, N.V.
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
Address for Notices:
125 West 55th Street
10th Floor
New York, NY 10019
Attn: Robert Snauffer
Fax: (212) 956-5580
With a copy to:
550 S. Hope Street, #1775
Los Angeles, CA 90071
Attn: Roxanne Cheng
Vice President
Fax: (212) 687-3885
Eurodollar Lending Office:
550 S. Hope Street, #1775
Los Angeles, CA 90071
Attn: Roxanne Cheng
Vice President
Fax: (212) 687-3885
Commitment: $10,000,000 THE LONG-TERM CREDIT BANK
OF JAPAN, LTD., Los Angeles
Agency
By:___________________________
Name:
Title:
By:__________________________
Name:
Title:
Address for Notices:
444 S. Flower Street
Suite 3700
Los Angeles, CA 90071
Attn: Mr. Takaomi Tomioka
Vice President
Fax: (213) 622-6908
Eurodollar Lending Office:
444 S. Flower Street
Suite 3700
Los Angeles, CA 90071
Attn: Ms. Kris Carey
Jennifer Ngo
Loan Administration
Fax: (213) 626-1067
Commitment: $20,000,000 NATIONSBANK OF TEXAS, N.A.
By:___________________________
Name:
Title:
Address for Notices:
444 S. Flower Street
Suite 1500
Los Angeles, CA 90071
Attn: Pamela Randell
Fax: (213) 624-5815
Eurodollar Lending Office:
901 Main Street
67th Floor
Dallas, TX 95202
Attn: Kay Hibbs
Fax: (214) 508-0944
<PAGE>
Commitment: $15,000,000 BANK OF HAWAII
By:___________________________
Name:
Title:
Address for Notices:
130 Merchant Street
20th Floor
Honolulu, HI 96813
Attn: Ms. Cindy L. Davis
Fax: (808) 537-8301
Eurodollar Lending Office:
130 Merchant Street
20th Floor
Honolulu, HI 96813
Attn: Ms. Cindy L. Davis
Fax: (808) 537-8301
<PAGE>
Commitment: $10,000,000 SANWA BANK CALIFORNIA
By:___________________________
Name: Del Lorimar
Title: Vice President
Address for Notices:
Sanwa Bank California
Sanwa Bank Plaza
601 S. Figueroa Street
8th Floor
Los Angeles, CA 90071
Attn: Mr. Del Lorimar
Vice President
Fax: (213) 896-7090
Eurodollar Lending Office:
Sanwa Bank California
Sanwa Bank Plaza
601 S. Figueroa Street
8th Floor
Los Angeles, CA 90071
Attn: Mr. Del Lorimar
Vice President
Fax: (213) 896-7090
<PAGE>
Schedule 5.01(a)
Subsidiaries and Joint Ventures of the Company
<TABLE>
HEALTH CARE PROPERTY INVESTORS, INC. Exhibit 12.2
RATIO OF EARNINGS TO FIXED CHARGES
(Amounts in thousands, except ratios)
<CAPTION>
Nine Month
Period
Ended
Year ended Decemeber 31, Sept. 30,
---------------------------------------------------- ---------
1989 1990 1991 1992 1993 1994
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Fixed Charges:
Interest Expense 19,642 17,520 20,838 19,780 19,728 15,058
Capitalized Interest 1,790 1,359 22 163 931 214
Pro-Rata Share of Unconsolidated
Partnerships' Fixed Charges 1,897 1,927 1,909 1,679 1,207 1,018
Amortization of Debt Expense and Discount 248 273 285 290 667 163
Portion of Rental Expense
Representative of the Interest Factor 88 98 96 98 104 68
------- ------- ------- ------- ------- -------
Total 23,665 21,177 23,150 22,010 22,637 16,521
======= ======= ======= ======= ======= =======
Earnings:
Income from Operations 17,052 26,897 30,073 39,031 47,506 36,877
Add Back Fixed Charges 23,665 21,177 23,150 22,010 22,637 16,521
Less Capitalized Interest (1,790) (1,359) (22) (163) (931) (214)
------- ------- ------- ------- ------- -------
38,927 46,715 53,201 60,878 69,212 53,184
======= ======= ======= ======= ======= =======
Ratio of Earnings to Fixed Charges 1.64 2.21 2.30 2.77 3.06 3.22
======= ======= ======= ======= ======= =======
</TABLE>
