<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(MARK ONE)
[X] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934. For the quarterly period ended September 30, 1998.
OR
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934.For the transition period from ..... to .......
Commission file number 1-8895
-------------------------------------------------------------------------------
HEALTH CARE PROPERTY INVESTORS, INC.
(Exact name of registrant as specified in its charter)
-------------------------------------------------------------------------------
Maryland 33-0091377
(State or other jurisdiction of (I.R.S. Employer
incorporation of organization) Identification No.)
4675 MacArthur Court, Suite 900
Newport Beach, California 92660
(Address of principal executive offices)
(949) 221-0600
(Registrant's telephone number, including area code)
----------------------
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days: Yes [X] No[ ]
As of November 12, 1998 there were 30,986,736 shares of $1.00 par
value common stock outstanding.
<PAGE> 1
HEALTH CARE PROPERTY INVESTORS, INC.
INDEX
PART I. FINANCIAL INFORMATION
PAGE NO.
Item 1. Financial Statements:
Condensed Consolidated Balance Sheets
September 30, 1998 and December 31, 1997 . . . . . . . . . . . . 2
Condensed Consolidated Statements of Income
Nine Months and Three Months Ended September 30, 1998 and 1997 . 3
Condensed Consolidated Statements of Cash Flows
Nine Months Ended September 30, 1998 and 1997. . . . . . . . . . 4
Notes to Condensed Consolidated Financial Statements . . . . . . 5
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations. . . . . . . . . . 11
PART II. OTHER INFORMATION
Signatures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
<PAGE> 2
HEALTH CARE PROPERTY INVESTORS, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(Unaudited)
(Amounts in thousands)
<TABLE>
<CAPTION>
September 30, December 31,
1998 1997
--------------- ---------------
<S> <C> <C>
Assets
Real Estate Investments
Buildings and Improvements $ 983,284 $ 837,857
Accumulated Depreciation (188,796) (170,502)
---------- ----------
794,488 667,355
Construction in Progress 19,517 19,627
Land 131,112 99,520
---------- ----------
945,117 786,502
Loans Receivable 145,471 125,381
Investments in and Advances to Joint Ventures 50,377 14,241
Other Assets 15,300 10,756
Cash and Cash Equivalents 83,027 4,084
---------- ----------
Total Assets $1,239,292 $ 940,964
========== ==========
Liabilities and Stockholders' Equity
Bank Notes Payable $ --- $ 66,900
Senior Notes Payable 471,020 275,023
Convertible Subordinated Notes Payable 100,000 100,000
Mortgage Notes Payable 14,910 10,935
Accounts Payable, Accrued Liabilities and Deferred Income 39,661 23,492
Minority Interests in Joint Ventures 20,830 22,345
Stockholders' Equity:
Preferred Stock 187,847 57,810
Common Stock 30,972 30,216
Additional Paid-In Capital 432,972 408,924
Cumulative Net Income 504,860 444,759
Cumulative Dividends (563,780) (499,440)
---------- ---------
Total Stockholders' Equity 592,871 442,269
---------- ----------
Total Liabilities and Stockholders' Equity $1,239,292 $ 940,964
========== ==========
</TABLE>
See accompanying Notes to Condensed Consolidated Financial Statements and
Management's Discussion and Analysis of Financial Condition and Results of
Operations.
<PAGE> 3
HEALTH CARE PROPERTY INVESTORS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(Unaudited)
(Amounts in thousands, except per share amounts)
<TABLE>
<CAPTION>
Three Months Nine Months
Ended September 30, Ended September 30,
--------------------------- ---------------------------
1998 1997 1998 1997
------------ ----------- ------------ -----------
<S> <C> <C> <C> <C>
Revenue
Base Rental Income $ 30,075 $ 23,567 $ 83,647 $ 68,337
Additional Rental and Interest Income 5,483 5,208 16,339 15,821
Interest and Other Income 6,608 3,532 16,462 10,767
--------- --------- --------- ---------
42,166 32,307 116,448 94,925
--------- --------- --------- ---------
Expense
Interest Expense 10,291 7,447 26,727 21,407
Depreciation/Non Cash Charges 8,366 6,521 23,750 19,056
Facility Operating Expenses 1,466 --- 3,211 ---
Other Expenses 2,488 1,875 6,292 5,511
--------- --------- --------- ---------
22,611 15,843 59,980 45,974
--------- --------- --------- ---------
Income From Operations 19,555 16,464 56,468 48,951
Minority Interests (889) (845) (3,109) (2,866)
Gain on Sale of Real Estate Properties 6,230 --- 6,742 2,047
--------- --------- --------- ---------
Net Income $ 24,896 $ 15,619 $ 60,101 $ 48,132
Dividends to Preferred Stockholders (2,060) (66) (4,422) (66)
--------- --------- --------- ---------
Net Income Applicable to Common Shares $ 22,836 $ 15,553 $ 55,679 $ 48,066
========= ========= ========= =========
Basic Earnings Per Common Share $ 0.74 $ 0.54 $ 1.82 $ 1.67
========= ========= ========= =========
Diluted Earnings Per Common Share $ 0.72 $ 0.54 $ 1.81 $ 1.66
========= ========= ========= =========
Weighted Average Shares
Outstanding - Basic 30,965 28,721 30,666 28,711
========= ========= ========= =========
Weighted Average Shares
Outstanding - Diluted 33,869 28,940 33,601 28,895
========= ========= ========= =========
</TABLE>
See accompanying Notes to Condensed Consolidated Financial Statements and
Management's Discussion and Analysis of Financial Condition and Results of
Operations.
<PAGE> 4
HEALTH CARE PROPERTY INVESTORS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
(Amounts in thousands)
<TABLE>
<CAPTION>
Nine Months
Ended September 30,
---------------------------
1998 1997
------------ ------------
<S> <C> <C>
Cash Flows From Operating Activities:
Net Income $ 60,101 $ 48,132
Adjustments to Reconcile Net Income to Net
Cash Provided by Operating Activities:
Real Estate Depreciation 21,403 16,664
Non Cash Charges 2,301 2,392
Joint Venture Adjustments 233 (552)
Gain on Sale of Real Estate Properties (6,742) (2,047)
Changes in:
Operating Assets (1,974) (1,550)
Operating Liabilities 14,973 4,400
-------- --------
Net Cash Provided By Operating Activities 90,295 67,439
======== ========
Cash Flows From Investing Activities:
Acquisition of Real Estate (185,594) (96,456)
Assumption of Debt on Acquisition of Real Estate 5,065 ---
Proceeds from Sale of Real Estate Properties 11,703 8,624
Advances to Joint Ventures/Partnerships (36,583) ---
Other Investments and Loans (21,248) 1,084
-------- --------
Net Cash Used In Investing Activities (226,657) (86,748)
======== ========
Cash Flows From Financing Activities:
Net (Decrease) Increase in Bank Notes Payable (66,900) 7,400
Repayment of Senior Notes Payable (22,500) (12,500)
Issuance of Senior Notes Payable 218,154 19,876
Cash Proceeds from Issuing Preferred Stock 130,037 57,810
Cash Proceeds from Issuing Common Stock 23,566 416
Decrease in Minority Interests (1,000) ---
Periodic Payments on Mortgages (761) (722)
Dividends Paid (64,340) (52,548)
Other Financing Activities (951) (214)
-------- --------
Net Cash Provided By Financing Activities 215,305 19,518
======== ========
Net Increase In Cash And Cash Equivalents 78,943 209
Cash And Cash Equivalents, Beginning Of Period 4,084 2,811
--------- --------
Cash And Cash Equivalents, End Of Period $ 83,027 $ 3,020
========= ========
</TABLE>
See accompanying Notes to Condensed Consolidated Financial Statements and
Management's Discussion and Analysis of Financial Condition and Results of
Operations.
<PAGE> 5
HEALTH CARE PROPERTY INVESTORS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
September 30, 1998
(Unaudited)
(1) SIGNIFICANT ACCOUNTING POLICIES
We, the management of Health Care Property Investors, Inc., believe that the
unaudited financial information contained in this report reflects all
adjustments that are necessary to state fairly the financial position, the
results of operations, and cash flows of the Company. The Company is defined as
Health Care Property Investors, Inc. and its affiliated subsidiaries and joint
ventures. We presume that users of this interim financial information have read
or have access to the audited financial statements and Management's Discussion
and Analysis of Financial Condition and Results of Operations for the preceding
fiscal year ended December 31, 1997. Therefore, notes to the financial
statements and other disclosures that would repeat the disclosures contained in
our most recent annual report to security holders have been omitted. This
interim financial information does not necessarily represent a full year's
operations for various reasons including acquisitions, changes in rents and
interest rates, and the timing of debt and equity financings.
Facility Operations:
During 1997 and 1998, we purchased 90 - 100 percent ownership interests in nine
medical office buildings ("MOBs") that are operated by independent property
management companies on our behalf. We lease these facilities to multiple
tenants under gross or triple net leases. Any income relating to these
properties, other than rental income, is recorded as facility operating revenue
and is included in Interest and Other Income. Expenses related to the operation
of these facilities are recorded as Facility Operating Expenses.
Reclassifications:
We have made reclassifications, where necessary, for comparative financial
statement presentations.
(2) MAJOR OPERATORS
Listed below are the Company's major operators and the percentage of annualized
revenue from these operators and their subsidiaries. Each of these operators is
subject to the informational filing requirements of the Securities Exchange Act
of 1934, as amended, and accordingly file periodic financial statements on Form
10-K and 10-Q with the Securities and Exchange Commission. We obtained all of
the financial and other information discussed below from these filings or from
other publicly available information.
<PAGE> 6
<TABLE>
<CAPTION>
Percentage of
Annualized Annualized
Operators Revenue Total Revenue
- ------------ ------------- -----------------
(in thousands)
<S> <C> <C>
HealthSouth Corporation $ 12,134 7%
Vencor, Inc. ("New Vencor") 11,949 7
Emeritus Corporation 11,164 7
Centennial Healthcare Corporation 8,917 5
Columbia/HCA Healthcare Corp. 8,214 5
Tenet Healthcare Corporation ("Tenet") 7,762 5
</TABLE>
On May 1, 1998, Vencor, Inc. ("Old Vencor") completed a spinoff transaction
pursuant to which it became two publicly held entities-Ventas, Inc. ("Ventas"),
a real estate company which intends to qualify as a REIT, and New Vencor, a
healthcare company. New Vencor currently leases 40 of the Company's properties,
of which 17 are leased to various sublessees. Both Ventas and New Vencor are
responsible for payments due under the New Vencor leases and substantially all
of the New Vencor leases are guaranteed by Tenet.
Based upon public reports, Old Vencor's revenue and net income for the year
ended December 31, 1997 were approximately $3.1 billion and $130.9 million,
respectively; Old Vencor's total assets and stockholders' equity as of December
31, 1997 were approximately $3.3 billion and $905.4 million, respectively.
Based upon a recent press release issued by New Vencor, for the three months
ended September 30, 1998, New Vencor had revenue of approximately $718.1 million
and a net loss, excluding non-recurring transactions, of approximately $1.1
million. For the nine months ended September 30, 1998, New Vencor had revenue
of approximately $2.3 billion and a net loss (including an extraordinary loss
of $77.9 million) of approximately $44.9 million.
Based upon a recent press release issued by Ventas, Ventas' revenue, income from
operations and net income for the three months ended September 30, 1998 were
approximately $56.2 million, $13.0 million and $12.9 million, respectively. As
of September 30, 1998, Ventas had total assets of $960.0 million and a
stockholders' deficit of $24.2 million.
Tenet leases and those guaranteed by Tenet represented approximately 16% of the
Company's total annualized revenue as of September 30, 1998. During 1998, 14 of
the New Vencor leases that were guaranteed by Tenet expired. All of the related
properties have been re-leased, have agreements to re-lease in place with other
operators, or have other agreements in principle and will no longer be
guaranteed by Tenet.
Based upon a recent press release issued by Emeritus, for the three months ended
September 30, 1998, Emeritus had revenue of approximately $39.0 million and a
net loss of approximately $7.1 million. For the nine months ended September 30,
1998, Emeritus had revenue of $110.8 million and a net loss of $25.0 million.
Based upon public reports, as of June 30, 1998, Emeritus had total assets of
$212.0 million and a stockholders' deficit of $26.9 million.
<PAGE> 7
(3) GAIN ON SALE OF REAL ESTATE
The Company sold three facilities and a partnership interest in another
facility during the third quarter, resulting in a gain of $6,230,000.
In addition, three financing leases and a mortgage loan receivable
were paid off.
(4) ISSUANCE OF PREFERRED STOCK
On September 4, 1998, the Company issued 5,385,000 shares of 8.70% Series B
Cumulative Redeemable Preferred Stock which generated net proceeds of
$130,000,000 (net of underwriters' discount and other offering expenses).
Dividends on the Preferred Stock are payable quarterly in arrears in March,
June, September and December, commencing with the quarter ending September 30,
1998. The Preferred Stock is not redeemable prior to September 30, 2003, after
which date the Preferred Stock may be redeemable at par ($25 per share or
$134,625,000 in the aggregate) any time for cash at the option of the Company.
The Preferred Stock has no stated maturity, will not be subject to any sinking
fund or mandatory redemption and is not convertible into any other securities of
the Company. The proceeds were used to pay off short-term bank debt. The
remainder was invested in short-term investments pending future acquisition and
development activity.
(5) STOCKHOLDERS' EQUITY
The following tabulation is a summary of the activity for the Stockholders'
Equity account for the nine months ended September 30, 1998 (amounts in
thousands):
<TABLE>
<CAPTION>
Preferred Stock Common Stock
----------------- ---------------------------------
Par Additional Total
Number of Number of Value Paid-In Cumulative Cumulative Stockholders'
Shares Amount Shares Amount Capital Net Income Dividends Equity
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance,
December 31, 1997 2,400 $57,810 30,216 $30,216 $408,924 $444,759 $(499,440) $442,269
Issuance of Preferred Stock, Net 5,385 130,037 130,037
Issuance of Common Stock, Net 756 756 24,048 24,804
Net Income 60,101 60,101
Dividends Paid - Preferred Shares (4,422) (4,422)
Dividends Paid - Common Shares (59,918) (59,918)
- -----------------------------------------------------------------------------------------------------------------------------------
Balance,
September 30, 1998 7,785 $187,847 30,972 $30,972 $432,972 $504,860 $(563,780) $592,871
===================================================================================================================================
</TABLE>
(6) EARNINGS PER COMMON SHARE
The Company adopted Statement of Financial Accountings Standards No. 128,
Earnings Per Share, effective December 15, 1997. As a result, both basic and
diluted earnings per common share are presented for each of the quarters and
nine months ended September 30, 1998 and 1997. In prior years, only basic
earnings per common share was disclosed. Basic earnings per common share is
computed by dividing net income applicable to common shares by the weighted
average number of shares of common stock outstanding during the period. Diluted
earnings per common share is calculated including the effect of dilutive
securities. Options to purchase shares of common stock that had an exercise
price in excess of the average market price of the common stock during the
period were not included because they are not dilutive. The convertible debt
was included only in those periods when the effect on earnings per common share
was dilutive.
<PAGE> 8
(Amounts in thousands except per share amounts)
<TABLE>
<CAPTION>
For the Three Months Ended For the Nine Months Ended
---------------------------- ------------------------------
Per Share Per Share
September 30, 1998 Income Shares Amount Income Shares Amount
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Basic Earnings Per Common Share:
Net Income Applicable to Common Shares $ 22,836 30,965 $ 0.74 $ 55,679 30,666 $ 1.82
====== ======
Dilutive Options --- 142 --- 172
Interest and Amortization applicable to
Convertible Debt 1,599 2,645 4,798 2,645
Non Managing Member Units 77 117 230 118 ---
------- ------- ------- ------
Diluted Earnings Per Common Share:
Net Income Applicable to Common
Shares Plus Assumed Conversions $ 24,512 33,869 $ 0.72 $ 60,707 33,601 $ 1.81
====== ======
</TABLE>
<TABLE>
<CAPTION>
For the Three Months Ended For the Nine Months Ended
---------------------------- ------------------------------
Per Share Per Share
September 30, 1997 Income Shares Amount Income Shares Amount
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Basic Earnings Per Common Share:
Net Income Applicable to Common Shares $ 15,553 28,721 $ 0.54 $ 48,066 28,711 $ 1.67
====== =======
Dilutive Options --- 219 --- 184
------- ------- ------- -------
Diluted Earnings Per Common Share:
Net Income Applicable to Common
Shares Plus Assumed Conversions $ 15,553 28,940 $ 0.54 $ 48,066 28,895 $ 1.66
====== ======
</TABLE>
(7) FUNDS FROM OPERATIONS
We are required to report information about our operations on the basis that we
use internally to measure performance under Statement of Financial Accounting
Standards No. 131, Disclosures about Segments of an Enterprise, effective
beginning in 1998.
We believe that Funds From Operations ("FFO") is our most important supplemental
measure of operating performance. Because the historical cost accounting
convention used for real estate assets requires straight-line depreciation
(except on land) such accounting presentation implies that the value of real
estate assets diminishes predictably over time. Since real estate values
instead have historically risen and fallen with market conditions, presentations
of operating results for a real estate investment trust that uses historical
cost accounting for depreciation could be less informative. The term FFO was
designed by the real estate investment trust industry to address this problem.
The Company adopted the definition of FFO prescribed by the National Association
of Real Estate Investment Trusts ("NAREIT"). FFO is defined as net income
applicable to common shares (computed in accordance with generally accepted
accounting principles), excluding gains (or losses) from debt restructuring and
sales of property, plus real estate depreciation and real estate related
amortization, and after adjustments for unconsolidated partnerships and joint
ventures. Adjustments for unconsolidated partnerships and joint ventures are
calculated to reflect FFO on the same basis.
FFO does not represent cash generated from operating activities in accordance
with generally accepted accounting principles, is not necessarily indicative of
cash available to fund cash needs and should not be considered as an alternative
to net income. FFO, as defined by the Company, may not be comparable to
similarly entitled items reported by other real estate investment trusts that do
not define it exactly as the NAREIT definition.
<PAGE> 9
Below are summaries of the calculation of FFO and FFO per share of common stock
(all amounts in thousands except per share amounts):
<TABLE>
<CAPTION>
Three Months Nine Months
Ended September 30, Ended September 30,
--------------------------- ---------------------------
1998 1997 1998 1997
------------ ----------- ------------ -----------
<S> <C> <C> <C> <C>
Net Income Applicable to Common Shares $ 22,836 $ 15,553 $ 55,679 $ 48,066
Real Estate Depreciation and Amortization 7,512 5,692 21,403 16,664
Joint Venture Adjustments 189 (168) 233 (552)
Gain on Sale of Real Estate Properties (6,230) --- (6,742) (2,047)
--------- --------- --------- --------
Funds From Operations $ 24,307 $ 21,077 $ 70,573 $ 62,131
========= ========= ========= ========
</TABLE>
<TABLE>
<CAPTION>
For the Three Months Ended For the Nine Months Ended
---------------------------- ------------------------------
Per Share Per Share
September 30, 1998 FFO Shares Amount FFO Shares Amount
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Basic Funds From Operations per Share: $ 24,307 30,965 $ 0.78 $ 70,573 30,666 $ 2.30
====== ======
Interest and Amortization applicable to
Convertible Debt 1,599 2,645 4,798 2,645
Dilutive Options --- 142 --- 172
Non Managing Member Units 77 117 230 118
------- ------- -------- -------
Diluted Funds From Operations per
Share: $ 25,983 33,869 $ 0.77 $ 75,601 33,601 $ 2.25
====== ======
September 30, 1997
- --------------------------------------
Basic Funds From Operations per Share: $ 21,077 28,721 $ 0.73 $ 62,131 28,711 $ 2.16
====== ======
Interest and Amortization applicable to
Convertible Debt 1,599 2,645 4,798 2,645
Dilutive Options --- 219 --- 184
------- ------- ------- -------
Diluted Funds From Operations per
Share: $ 22,676 31,585 $ 0.72 $ 66,929 31,540 $ 2.12
====== ======
</TABLE>
(8) COMMITMENTS
As of November 2, 1998, the Company has acquired real estate properties and has
outstanding commitments to fund development of facilities on those properties of
approximately $84,000,000.
The Company is also committed to acquire approximately $268,000,000 of existing
health care real estate. The Company expects that a significant portion of these
commitments will be funded; however, experience suggests that some committed
transactions will not close. The letters of intent representing such commitments
permit either party to elect not to go forward with the transaction under
various circumstances. We may not close committed transactions for various
reasons including unsatisfied pre-closing conditions, competitive financing
sources, final negotiation differences or the operator's inability to obtain
required internal or governmental approvals.
<PAGE> 10
(9) NEW PRONOUNCEMENTS
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 133, Accounting for Derivative Instruments
and Hedging Activities. The Statement establishes accounting and reporting
standards requiring that every derivative instrument (including certain
derivative instruments embedded in other contracts) be recorded in the balance
sheet as either an asset or liability measured at its fair value. The Statement
requires that changes in the derivative's fair value be recognized currently in
earnings unless specific hedge accounting criteria are met. Statement 133 is
effective for fiscal years beginning after June 15, 1999, although earlier
implementation is allowed.
We have not yet quantified the impacts of adopting Statement 133 on our
financial statements and have not determined the timing of or method of our
adoption of Statement 133. However, the effect is not expected to be material.
During May 1998, the Emerging Issues Task Force (EITF) Issue No. 98-9,
Accounting for Contingent Rent in Interim Financial Periods, was released. The
issue as it relates to the Company is how we as a lessor should account for
contingent rental income during interim periods that is based on future
specified targets within our fiscal year. In other words, if the target revenue
on which contingent rents are based has not yet been achieved for the current
year, the contingent rent should not be recognized. Recognition would be
allowed once the specified target is reached.
Because the vast majority of our contingent rents are based on quarterly
revenues, we feel that our current policy of recognizing additional rent on a
quarterly basis is proper. Therefore the effect of adopting EITF 98-9 is not
material to our financial condition or results of operations.
(10) SUBSEQUENT EVENTS
On October 20, 1998 the Board of Directors declared a quarterly dividend of
$0.67 per common share payable on November 20, 1998, to shareholders of record
on the close of business on November 3, 1998.
The Board of Directors also declared a cash dividend of $0.492188 per share on
its Series A cumulative preferred stock and $0.54375 per share on its Series B
cumulative preferred stock. These dividends will be paid on December 31, 1998
to shareholders of record as of the close of business on December 15, 1998.
<PAGE> 11
HEALTH CARE PROPERTY INVESTORS, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
GENERAL
The Company is in the business of acquiring health care facilities that we lease
on a long-term basis to health care providers. On a more limited basis, we have
provided mortgage financing on health care facilities. As of September 30, 1998,
the Company's portfolio of properties, including equity investments, consisted
of 302 facilities located in 42 states. These facilities are comprised of 145
long-term care facilities, 83 congregate care and assisted living facilities, 39
physician group practice clinics, 21 medical office buildings, seven acute care
hospitals, six freestanding rehabilitation facilities and one psychiatric care
facility. The gross acquisition price of the properties, which includes joint
venture acquisitions, was approximately $1,343,000,000 at September 30, 1998.
We have commitments to purchase and construct health care facilities totaling
approximately $352,000,000 for funding during 1998 and 1999. We expect that a
significant portion of these commitments will be funded but that a portion may
not be funded (see Note (8) to the Condensed Consolidated Financial
Statements).
RESULTS OF OPERATIONS
Net Income applicable to common shares for the three and nine months ended
September 30, 1998 totaled $22,836,000 and $55,679,000 or $0.72 and $1.81 of
diluted earnings per share on revenue of $42,166,000 and $116,448,000,
respectively. This compares to $15,553,000 and $48,066,000 or $.54 and $1.66 of
diluted earnings per share on revenue of $32,307,000 and $94,925,000,
respectively, for the same periods in 1997. Net Income for the three and nine
months ended September 30, 1998 included a $6,230,000 and $6,742,000, or $0.18
and $0.20 per diluted share, gain on the sale of real estate properties. Net
Income for the nine months ended September 30, 1997 included a $2,047,000 or
$0.07 per diluted share gain on the sale of real estate properties.
Base Rental Income for the three and nine months ended September 30, 1998
increased by $6,508,000 and $15,310,000 to $30,075,000 and $83,647,000 as
compared to the same period in the prior year. The majority of the increase in
Base Rental Income was generated by new investments of approximately
$250,000,000 and $262,000,000 made during 1998 and 1997. Interest and Other
Income for the three and nine months ended September 30, 1998 increased
$3,076,000 and $5,695,000 to $6,608,000 and $16,462,000. The increase was
primarily from growth in the lending portfolio and from an increase in income
from the operations of nine medical office buildings purchased during 1997
and 1998. There were $1,466,000 and $3,211,000 in related Facility Operating
Expenses during the three and nine months ended September 30, 1998.
Interest Expense for the three and nine months ended September 30, 1998
increased by $2,844,000 and $5,320,000. The increase is primarily the result
of an increase in short-term borrowings used to fund the acquisitions made
during 1998 and interest related to the MOPPRS senior debt issuance during
June 1998. The increase in Depreciation/Non Cash Charges for the three and
nine months ended September 30, 1998 of $1,845,000 and $4,694,000 to $8,366,000
and $23,750,000 is the direct result of the new investments made during 1997
and 1998.
<PAGE> 12
We believe that Funds From Operations ("FFO") is an important
supplemental measure of operating performance. (See Note (7) to the Condensed
Consolidated Financial Statements.)
FFO for the three and nine months ended September 30, 1998 increased $3,230,000
and $8,442,000 to $24,307,000 and $70,573,000, respectively. The increase is
attributable to increases in Base Rental Income and Interest and Other Income,
as offset by increases in Interest Expense and Facility Operating Expenses,
which are discussed above.
FFO does not represent cash generated from operating activities in accordance
with generally accepted accounting principles, is not necessarily indicative of
cash available to fund cash needs and should not be considered as an alternative
to net income. FFO, as we defined it, may not be comparable to similarly
entitled items reported by other real estate investment trusts that do not use
the NAREIT definition.
LIQUIDITY AND CAPITAL RESOURCES
The Company has financed acquisitions through the sale of common and preferred
stock, issuance of long-term debt, assumption of mortgage debt, use of short-
term bank lines and through internally generated cash flows. Facilities under
construction are generally financed by means of cash on hand or short-term
borrowings under our existing bank lines. At the completion of construction and
commencement of the lease, short-term borrowings used in the construction phase
are generally refinanced with new long-term debt, including Medium Term Notes
("MTNs"), or with equity offerings.
MTN FINANCINGS
- ---------------
The following table summarizes the MTN financing activities during 1997 and
1998:
<TABLE>
<CAPTION>
Amount
Date Maturity Coupon Rate Issued/(Redeemed)
---------------------------------------------------------------------
<S> <C> <C> <C>
March 1997 10 years 7.30% $ 10,000,000
April 1997 10 years 7.62% 10,000,000
September 1997 --- 10.20% - 10.30% (12,500,000)
February 1998 --- 9.88% (10,000,000)
March 1998 5 years 6.66% 20,000,000
April 1998 --- 9.48% (1,000,000)
May 1998 --- 9.44%- 9.62% (6,500,000)
July 1998 --- 9.70% (5,000,000)
</TABLE>
SENIOR DEBT OFFERINGS
- ---------------------
During June 1998, the Company issued $200 million of 6.875% MandatOry Par Put
Remarketed Securities ("MOPPRS") due June 8, 2015 which are subject to mandatory
tender on June 8, 2005. We received total proceeds of approximately
$203,000,000 (including the present value of a put option associated with the
debt) which was used to repay borrowings under our revolving lines of credit.
The weighted average cost of the debt including the amortization of the option
and offering expenses is 6.77%. The MOPPRS are senior, unsecured obligations of
the Company.
<PAGE> 13
EQUITY OFFERINGS
- ----------------
During the past year, we have completed four equity offerings. On September 26,
1997, we issued $60,000,000, 7-7/8% Series A Cumulative Redeemable Preferred
Stock. During December 1997 we raised $55,000,000 of equity in a common stock
offering of 1,437,500 shares at $38.3125 per share. During April 1998, we sold
698,752 shares of common stock in a common stock offering at $33.2217 per share.
On September 4, 1998 we issued $135,000,000, 8.70% Series B Cumulative
Redeemable Preferred Stock. We used the net proceeds of $57,810,000,
$51,935,000, $23,000,000 and $130,000,000 from the respective equity offerings
to pay down or pay off short-term borrowings under the Company's revolving lines
of credit. We invested any excess funds in short-term investments until they
were needed for acquisitions or development.
At September 30, 1998, stockholders' equity totaled $592,871,000 and the debt to
equity ratio was 0.99 to 1.00. For the nine months ended September 30, 1998,
FFO (before interest expense) covered Interest Expense 3.64 to 1.00.
AVAILABLE FINANCING SOURCES
- ---------------------------
During June 1998, the Company registered $600,000,000 of debt and equity
securities under a shelf registration statement filed with the Securities and
Exchange Commission. As of September 30, 1998 we had $518,280,000 remaining on
shelf filings for future financings. Of that amount, we had approximately
$202,905,000 available under our MTN senior debt programs. These amounts may be
issued from time to time in the future based on Company needs and then existing
market conditions. On September 30, 1998 we renegotiated our lines of credit
with a group of seven banks. We have two revolving lines of credit, one for
$135,000,000 that expires on September 30, 2003 and one for $45,000,000 that
expires on September 30, 1999. As of September 30, 1998, the Company had all
$180,000,000 available on these lines of credit. Since 1986 the debt rating
agencies have rated our Senior Notes and Convertible Subordinated Notes
investment grade. Current ratings are as follows:
Moody's Standard & Poor's Duff & Phelps
--------------------------------------------------
Senior Notes Baa1 BBB+ A-
Convertible
Subordinated Notes Baa2 BBB BBB+
Since inception in May 1985, the Company has recorded approximately $664,786,000
in cumulative FFO. Of this amount, we have distributed a total of $558,111,000
to stockholders as dividends on common stock. We have retained the balance of
$106,675,000 and used it as an additional source of capital.
At September 30, 1998, the Company held approximately $41,000,000 in irrevocable
letters of credit from commercial banks to secure the obligations of many
lessees' lease and borrowers' loan obligations. We may draw upon the letters of
credit if there are any defaults under the leases and/or loans. Amounts
available under letters of credit could change based upon facility operating
conditions and other factors and such changes may be material.
<PAGE> 14
We paid the third quarter 1998 dividend of $0.66 per common share or $20,436,000
in the aggregate on August 20, 1998. Total dividends paid during the nine
months ended September 30, 1998, as a percentage of FFO was 85%. The Company
declared a fourth quarter dividend of $0.67 per common share or approximately
$20,752,000 in the aggregate, payable on November 20, 1998.
FACILITY ROLLOVERS
- -------------------
The Company has concluded a significant number of "facility rollover"
transactions in 1995, 1996, 1997 and 1998 on properties that have been under
long-term leases and mortgages. "Facility rollover" transactions principally
include lease renewals and renegotiations, exchanges, sales of properties,
and, to a lesser extent, payoffs on mortgage receivables.
<TABLE>
<CAPTION>
Annualized
Increase/(Decrease)
Year In FFO
- ----- -------------------
<S> <C> <C>
1995 Completed 20 facility rollovers including the sale
of ten facilities with concurrent "seller financing"
for a gain of $23,550,000. $ 900,000
1996 Completed 20 facility rollovers including the sale
of nine facilities in Missouri and the exchange of
the Dallas Rehabilitation Institute for the HealthSouth
Sunrise Rehabilitation Hospital in Fort Lauderdale,
Florida. (1,200,000)
1997 Completed 12 facility rollovers. (1,600,000)
1998 Completed or agreed to complete 37 facility rollovers
including the sale of ten facilities and the payoff of
three mortgage loans. (2,100,000)
</TABLE>
Through December 31, 2000, we have 29 more facilities that are subject to lease
expiration, mortgage maturities or purchase options (which management believes
may be exercised). These facilities currently represent approximately 13% of
annualized revenues.
During 1997, the Company reached agreement with Tenet (the holder of
substantially all the option rights of the New Vencor leases) and with
Beverly Enterprises, Inc. ("Beverly") whereby they agreed to waive renewal
and purchase options, and related rights of first refusal, on up to 57
facilities. As part of these agreements, we have the right to continue to
own the facilities. Leases on 27 of those 57 facilities had expiration
dates through December 31, 2000. We have increased rents on six of the
facilities with leases that have already expired during 1998, and believe
we will be able to increase rents on other facilities whose lease terms
expire through 2001. However, there can be no assurance that we will be
able to realize any increased rents on future rollovers. The Company has
completed certain facility rollovers earlier than the scheduled lease
expirations or mortgage maturities and will continue to pursue such
opportunities where it is advantageous to do so.
We believe that the Company's liquidity and sources of capital are adequate to
finance its operations as well as its future investments in additional
facilities.
<PAGE> 15
YEAR 2000 ISSUE
The Year 2000 issue is the result of widely used computer programs that
identified the year by two digits, rather than by four. It is believed that
continued use of these programs may result in widespread computer-generated
malfunctions and miscalculations beginning in the year 2000, when the digits
"00" are interpreted as "1900." Those miscalculations could cause disruption of
operations including the temporary inability to process transactions such as
invoices for payment. Those computer programs that identify the year based on
all four digits are considered "Year 2000 compliant."
We believe that we do not have significant exposure to Year 2000 issues with
respect to our own accounting and information systems or with respect to
embedded chips in elevators, security systems or other electronic systems
located within our corporate offices. We have been working with our computer
consultants to test and continually upgrade our management information systems
and we have reasonable assurance from our vendors and outside computer
consultants that our financial and other information systems are Year 2000
compliant. The cost to bring our management information systems into Year 2000
compliance has not been material. Any disruption in services at our corporate
offices due to failure of embedded chips within our office is not expected to
have a material adverse effect on our operations.
Because we believe our own accounting and information systems are substantially
Year 2000 compliant, we do not feel there will be material disruption to our
transaction processing on January 1, 2000. However, if our primary lessees and
mortgagors are not Year 2000 compliant, or if they face disruptions in their
cash flows due to Year 2000 issues, we could face significant temporary
disruptions in our cash flows after that date. These disruptions could be
exacerbated if the commercial banks that process our cash receipts and
disbursements and our lending institutions are not Year 2000 compliant.
To address this concern, during the second quarter of 1998, we commenced a
survey of our investment banks, commercial banks, primary lessees and mortgagors
and major vendors ("Material Third Parties") in order to assess what
preparations each has made to deal with the Year 2000 issue with respect to both
information technology and embedded microprocessors. In addition we asked each
respondent to inform us about their exposure to third party vendors, customers
and payors who may not be Year 2000 compliant. Through this process we have
been informed by most of those surveyed that they believe that they have
computer systems that are or will be Year 2000 compliant by the end of 1999.
All continue to assess their own exposure to the issue. However neither we nor
our lessees and mortgagors can be assured that the federal and state
governments, upon which they rely for Medicare and Medicaid revenue, will be in
compliance in a timely manner. The General Accounting Office has reported that
the Health Care Financing Administration ("HCFA"), which runs Medicare, is
behind schedule in taking steps to deal with the Year 2000 issue and that it is
highly unlikely that all of the Medicare systems will be compliant in time to
ensure the delivery of uninterrupted benefits and services into the year 2000.
We do not know at this time whether there will in fact be a disruption of
Medicare or Medicaid reimbursements to our lessees and mortgagors and we are
therefore unable to determine at this time whether the Year 2000 issue will have
a material adverse effect on the Company or its future operations.
We are in the process of assessing our exposure to failures of embedded
microprocessors in elevators, electrical systems, security systems and the
breakdown of other non-information technology due to the Year 2000 issue at a
number of our properties. Under a significant portion of our leases,
the Company is not responsible for the cost to repair such items and is
indemnified by the tenants for losses caused by their operations on the
property. For the Medical Office Buildings where the Company may be responsible
for repairing such items, we do not believe that the costs of repair will be
material to the Company and any such costs will be expensed as incurred.
<PAGE> 16
The Company's exposure to the Year 2000 issue depends primarily on the readiness
of our Material Third Parties who, in turn, are dependent upon suppliers, payors
and other external parties, all of which is outside the Company's control. Many
respondents to our survey indicated that they are in the process of developing
contingency plans to cope with disruptions in their business as a result of the
Year 2000 issue. We will continue to seek information from these Material Third
Parties regarding theirs and as we develop more information, we will determine
what contingency plan may be available to the Company.
Readers are cautioned that most of the statements contained in the "Year 2000
Issue" paragraphs are forward looking and should be read in conjunction with the
Company's disclosures under the heading "CAUTIONARY LANGUAGE REGARDING FORWARD
LOOKING STATEMENTS" set forth below.
CAUTIONARY LANGUAGE REGARDING FORWARD LOOKING STATEMENTS
Statements in this Quarterly Report on Form 10-Q that are not historical factual
statements are "forward looking statements" within the meaning of the Private
Securities Litigation Reform Act of 1995. The statements include, among other
things, statements regarding the intent, belief or expectations of the Company
and its officers and can be identified by the use of terminology such as "may",
"will", "expect", "believe", "intend", "plan", "estimate", "should" and other
comparable terms or the negative thereof. In addition, the Company, through its
senior management, from time to time makes forward looking oral and written
public statements concerning the Company's expected future operations and other
developments. Shareholders and investors are cautioned that, while forward
looking statements reflect the Company's good faith beliefs and best judgment
based upon current information, they are not guarantees of future performance
and are subject to known and unknown risks and uncertainties. Actual results
may differ materially from the expectations contained in the forward looking
statements as a result of various factors. Such factors include (i)
legislative, regulatory, or other changes in the healthcare industry at the
local, state or federal level which increase the costs of or otherwise affect
the operations of the Company's lessees; (ii) changes in the reimbursement
available to the Company's lessees and mortgagors by governmental or private
payors, including changes in Medicare and Medicaid payment levels and the
availability and cost of third party insurance coverage; (iii) competition for
lessees and mortgagors, including with respect to new leases and mortgages and
the renewal or roll-over of existing leases; (iv) competition for the
acquisition and financing of health care facilities; (v) the ability of the
Company's lessees and mortgagors to operate the Company's properties in a manner
sufficient to maintain or increase revenues and to generate sufficient income to
make rent and loan payments; and, (vi) changes in national or regional economic
conditions, including changes in interest rates and the availability and cost of
capital to the Company and (vii) the general uncertainty inherent in the Year
2000 issue, particularly the uncertainty of the Year 2000 readiness of third
parties who are material to the Company's business, such as public or private
healthcare reimbursers, over whom the Company has no control with the result
that the Company cannot ensure its ability to timely and cost-effectively avert
or resolve problems associated with the Year 2000 issue that may affect its
operations and business.
<PAGE> 17
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
a) Exhibits:
27 Financial Data Schedule
10.1 Amended and Restated $45,000,000 Revolving Credit
Agreement dated as of October 22, 1997 and amended and
restated as of September 30, 1998 among Health Care Property
Investors, Inc., the banks named herein and The Bank of New
York and BNY Capital Markets, Inc.
10.2 Amended and Restated $135,000,000 Revolving Credit
Agreement dated as of October 22, 1997 and amended and
restated as of September 30, 1998 among Health Care Property
Investors, Inc., the banks named herein and The Bank of New
York and BNY Capital Markets, Inc.
b) Reports on Form 8-K:
On July 21, 1998, the Company filed a Report on Form 8-K with the
Securities and Exchange Commission ("SEC") regarding exhibits required
to be filed related to the issuance of $200,000,000 of 6.875%
MandatOry Par Put Remarketed Securities due June 8, 2015 (the
"MOPPRS"). The exhibits filed were the June 3, 1998 Purchase
Agreement, an Officer's Certificate pursuant to Section 301 of the
Indenture dated as of September 1, 1993 between the Company and The
Bank of New York, as Trustee, establishing the series of securities;
the MOPPRS note; and an opinion re tax matters.
On August 27, 1998, the Company filed a Report on Form 8-K/A which
contained the required consent from Arthur Andersen LLP not previously
included in the June 17, 1998 8-K which related to the acquisition of
nine long-term care facilities and 33 clinics in 11 separate
transactions at an aggregate purchase price of approximately
$99,800,000.
On September 29, 1998, the Company filed a Report on Form 8-K with the
SEC regarding the following: the distribution agreement with Merrill
Lynch et al pursuant to which the Company agreed to sell up to
$150,000,000 Medium-Term Notes, Series D; the purchase agreement with
Merrill Lynch et al pursuant to which the Company agreed to sell up to
5,750,000 shares of 8.70% series B cumulative redeemable preferred
stock; and the September 9, 1998 press release announcing the issuance
of the Series B preferred shares.
<PAGE> 18
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 thereunto duly authorized.
Date: November 12, 1998 HEALTH CARE PROPERTY INVESTORS, INC.
(REGISTRANT)
/s/ James G. Reynolds
---------------------------
James G. Reynolds
Executive Vice President
and Chief Financial Officer
(Principal Financial Officer)
/s/ Devasis Ghose
---------------------------
Devasis Ghose
Senior Vice President-Finance
and Treasurer
(Principal Accounting Officer)
Exhibit 10.1
AMENDED AND RESTATED
$45,000,000
REVOLVING CREDIT AGREEMENT
dated as of October 22, 1997
and amended and restated as of September 30, 1998
among
HEALTH CARE PROPERTY INVESTORS, INC.,
THE BANKS NAMED HEREIN
AND
THE BANK OF NEW YORK
as Agent
AND
BNY CAPITAL MARKETS, INC.
As Lead Arranger
TABLE OF CONTENTS
RECITALS 1
ARTICLE I
DEFINITIONS
Section 1.01. Definitions 1
ARTICLE II
THE LOANS
Section 2.01. Committed Loans 17
Section 2.02. Procedure for Committed Loans 17
Section 2.03. Committed Notes 18
Section 2.04. Cancellation or Reduction of the Commitment 18
Section 2.05. Money Market Loans 19
Section 2.06. Procedure for Money Market Loans 19
Section 2.07. Funding of Money Market Loans 20
Section 2.08. Money Market Notes 21
Section 2.09. Certain Fees 21
Section 2.10. Optional Prepayment 22
ARTICLE III
INTEREST, METHOD OF PAYMENT, CONVERSION, ETC.
Section 3.01. Procedure for Interest Rate Determination 22
Section 3.02. Interest on ABR Loans 22
Section 3.03. Interest on Eurodollar Loans 23
Section 3.04. Conversion/Continuance 24
Section 3.05. Post Default Interest 24
Section 3.06. Maximum Interest Rate 25
ARTICLE IV
DISBURSEMENT AND PAYMENT
Section 4.01. Pro Rata Treatment 25
Section 4.02. Method of Payment 25
Section 4.03. Compensation for Losses 26
Section 4.04. Withholding, Reserves and Additional Costs 27
Section 4.05. Unavailability 30
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.01. Representations and Warranties 31
ARTICLE VI
CONDITIONS OF LENDING
Section 6.01. Conditions to the Availability of
the Commitment 38
Section 6.02. Conditions to All Loans 40
ARTICLE VII
COVENANTS
Section 7.01. Affirmative Covenants 41
Section 7.02. Negative Covenants 44
Section 7.03. Financial Covenants 47
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.01. Events of Default 48
ARTICLE IX
THE AGENT AND THE BANKS
Section 9.01. The Agency and Co-Agency 51
Section 9.02. The Agent's Duties 51
Section 9.03. Sharing of Payment and Expenses 52
Section 9.04. The Agent's Liabilities 53
Section 9.05. The Agent as a Bank 53
Section 9.06. Bank Credit Decision 53
Section 9.07. Indemnification 54
Section 9.08. Successor Agent 54
ARTICLE X
CONSENT TO JURISDICTION; JUDGMENT CURRENCY
Section 10.01. Consent to Jurisdiction 55
ARTICLE XI
MISCELLANEOUS
Section 11.01. APPLICABLE LAW 56
Section 11.02. Set-off 56
Section 11.03. Expenses 56
Section 11.04. Amendments 56
Section 11.05. Cumulative Rights and No Waiver 57
Section 11.06. Notices 57
Section 11.07. Separability 58
Section 11.08. Assignments and Participations 58
Section 11.09. WAIVER OF JURY TRIAL 60
Section 11.10. Confidentiality 60
Section 11.11. Indemnity 61
Section 11.12. Extension of Termination Dates;
Removal of Banks; Substitutions of Banks 61
Section 11.13. Knowledge of the Company 63
Section 11.14. Execution in Counterparts 63
TESTIMONIUM 57
SIGNATURES 57
EXHIBITS AND SCHEDULES
EXHIBIT A Form of Conversion/Continuance Request
EXHIBIT B Form of Committed Loan Request
EXHIBIT C Form of Money Market Notice
EXHIBIT D Form of Money Market Confirmation
EXHIBIT E Form of Committed Note
EXHIBIT F Form of Money Market Note
EXHIBIT G Form of Opinion of Latham & Watkins LLP
EXHIBIT H Form of Opinion of Ballard, Spahr, Andrews & Ingersoll
EXHIBIT I Form of Extension Letter
SCHEDULE 5.01(a) Subsidiaries and Joint Ventures of the Company
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT, dated as of
October 22, 1997 and amended and restated as of September 30, 1998 (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, N.A., successor by merger to
NationsBank of Texas, N.A. ("NationsBank"), as Co-Agent, and BNY Capital
Markets, Inc., as Lead Arranger:
W I T N E S S E T H:
WHEREAS, the Company has requested the Banks to lend up to $45,000,000
to the Company on a revolving basis for general corporate purposes; and
WHEREAS, the Company wishes to amend and restate its current credit
facility under the $50,000,000 Revolving Credit Agreement, dated as of October
22, 1997, among the Company, the banks named therein, and the Agent and Co-
Agent;
NOW, THEREFORE, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.
(a) Terms Generally. The definitions ascribed to terms in this
Section 1.01 and elsewhere in this Agreement shall apply equally to both the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be deemed
to be followed by the phrase "without limitation". The words "hereby",
"herein", "hereof", "hereunder" and words of similar import refer to this
Agreement as a whole (including any exhibits and schedules hereto) and not
merely to the specific section, paragraph or clause in which such word appears.
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, all references to "dollars" or "$" 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 Committed Loans which bear interest at a rate
based upon the Base Rate and in the manner set forth in Section 3.02.
"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(h).
"Agent" shall have the meaning given to such term in the preamble of
this Agreement and shall also include any successor agent hereunder.
"Agreement" shall have the meaning given to such term in the preamble.
"Applicable Margin" shall mean the margin set forth in the following
chart applicable to the Pricing Level then in effect:
Pricing Level Applicable Margin
------------- -----------------
I 0.3000%
II 0.3500%
III 0.4500%
IV 0.5625%
V 0.8500%
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
and Pricing Level I is not applicable; "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 and neither Pricing Level I nor II
is applicable; "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 and neither Pricing Level I, II nor III is applicable; and
"Pricing Level V" shall be applicable for so long as neither Pricing Level I,
II, III nor IV is applicable.
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.
("Fitch") and Duff & Phelps Inc. ("D&P" and, collectively with S&P, Moody's and
Fitch, the "Rating Agencies") then has or have a publicly available Senior Debt
Rating or Ratings for the Company, then the pricing level shall be determined by
either (i) the higher of the ratings of S&P and Moody's if either Fitch or D&P
have a rating corresponding to such higher rating of S&P or Moody's, or (ii) the
lower of the ratings of S&P and Moody's if neither Fitch nor D&P have a rating
corresponding to the higher 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 Committed Loan
Request or Money Market Notice, as the case may be, 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, any
payment of the Facility Fee or any Money Market Loan for which another meaning
for such term is not specified in the Money Market Notice, 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 international
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 obligation of any Person to
pay rent or other amounts under a Capital Lease.
"Co-Agent" shall mean NationsBank, N.A. and shall also include any
successor co-agent hereunder.
"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 2.04 and (ii) after such Bank's Termination Date,
zero.
"Committed 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.
"Committed Loans" shall mean, collectively, ABR Loans and Eurodollar
Loans made pursuant to Section 2.01 to 2.03 and outstanding hereunder from time
to time.
"Committed Notes" shall mean, collectively, the promissory notes of
the Company, each substantially in the form of Exhibit E.
"Compliance Date" shall mean each of the date of this Agreement, each
Borrowing Date, each Conversion/Continuance 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, as
amended, supplemented or otherwise modified from time to time.
"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 Act, the federal Toxic
Substances Control Act, the Federal Insecticide, Fungicide and Rodenticide Act
and 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 Committed 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
2.09(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 0.0750%
II 0.1000%
III 0.1500%
IV 0.1875%
V 0.2750%
"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 pronounce
ments 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 other
wise, 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 condi
tional 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.
"Lead Arranger" shall mean BNY Capital Markets, Inc.
"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)
"Loans" shall, collectively, mean the Committed Loans and the Money
Market Loans and, individually, any Committed Loan or any Money Market Loan.
"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, 1997.
"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 Funding Date" shall mean the date specified in the Money
Market Notice as the date of funding for such Money Market Borrowing.
"Money Market Borrowing" shall mean one or more Money Market Loans
made to the Company by one or more of the Banks and of which the Agent is given
notice by a Money Market Notice.
"Money Market Confirmation" shall mean the notice, in substantially
the form of Exhibit D, pertaining to a Money Market Loan, and made pursuant to
Section 2.06(b), duly completed and executed and personally delivered or
transmitted by facsimile to the Company.
"Money Market Loan" shall mean a Loan that is made pursuant to
Sections 2.05 to 2.08.
"Money Market Notes" shall mean, collectively, the promissory notes of
the Company, each substantially in the form of Exhibit F.
"Money Market Notice" shall mean the notice made pursuant to
Section 2.06(a), duly completed and executed by the Company and the Banks
proposing to make Money Market Loans and personally delivered or transmitted to
the Agent.
"Notes" shall mean, collectively, the Committed Notes and the Money
Market Notes.
"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 canceled or reduced to $0 or expired, the
proportion of such Bank's then outstanding Committed Loans to the aggregate
amount of Committed 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 canceled 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 three hundred and sixty-fourth day after the date of the
amendment and restatement of this Agreement or such later date as may be agreed
to by such Bank pursuant to Section 11.12 and (ii) the date on which the
obligations of such Bank to make loans hereunder shall terminate pursuant to
Section 8.01 or the Commitments shall be reduced to zero pursuant to
Section 2.04.
"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. Committed 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 Committed 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) the aggregate principal amount of outstanding
Committed Loans and (ii) the aggregate principal amount of outstanding Money
Market Loans may not exceed the Total Commitment.
Section 2.02. Procedure for Committed Loans . (a) The Company may
borrow Committed Loans by delivering a written Committed 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. Committed 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 Committed 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 City time, on the Borrowing Date specified in
such Committed 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
Committed 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 Committed Loans requested in such Committed 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 Committed 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 Committed 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. Committed Notes . The Company's obligation to repay
the Committed Loans shall be evidenced by Committed Notes, one such Committed
Note payable to the order of each Bank. The Committed Note of each Bank shall
(i) be in the principal amount of such Bank's Commitment, (ii) be dated the date
of the initial Committed 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 Committed Note all
Committed 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 Committed 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 Committed Notes.
Section 2.04. Cancellation or Reduction of the Commitment . The
Company shall have the right, upon not less than three 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 Committed Loans and Money Market Loans on such
date. Partial reductions of the Total Commitment shall be in the amount of
$5,000,000 or in integral multiples of $1,000,000 in excess thereof (or, if the
aggregate outstanding amount of Loans is less than $5,000,000, then all of such
lesser amount). All such cancellations or reductions shall be permanent.
Section 2.05. Money Market Loans . On the terms and subject to the
conditions of this Agreement, each Bank, severally and for itself alone, may
(but is not obligated to) make one or more Money Market Loans to the Company
from time to time on or after the date hereof and prior to such Bank's
Termination Date in amounts determined as indicated in the Money Market Notice
and for a term that, for each Money Market Loan, is not more than 270 days from
the date of funding of such Money Market Loan as provided in Section 2.07;
provided that the aggregate principal amount of all outstanding Loans shall not
at any time exceed the then Total Commitment.
Section 2.06. Procedure for Money Market Loans .
(a) Money Market Notice. The Company may, from time to time, approach
one or more of the Banks to determine whether such Bank or Banks will make one
or more Money Market Loans. The Company and any Bank or Banks shall, if each of
them in their sole discretion elects to do so, agree to enter into one or more
Money Market Loans as part of such proposed Money Market Borrowing on mutually
agreed-upon terms and notify the Agent by telephone, confirmed in writing by a
Money Market Notice, in the form of Exhibit C hereto, from the Company and the
Bank or Banks proposing to make Money Market Loans before 9:30 a.m. (Los Angeles
time) on the date of the funding of such Money Market Loan (the "Money Market
Funding Date"). Such Money Market Notice shall specify the amount of each Money
Market Loan that such Bank or Banks will make as part of such proposed Money
Market Borrowing (which amounts may, subject to the proviso in Section 2.05,
exceed each such Bank's Commitment), the Money Market Funding Date and the date
or dates of maturity thereof. At any time until 11:30 a.m., Los Angeles time,
on the Money Market Funding Date, the Agent may, but shall be under no
affirmative obligation to, notify any of the Banks proposing to make Money
Market Loans pursuant to such Money Market Notice or the Company that, taking
into consideration any other outstanding Committed Loan Request or Money Market
Notice, such Money Market Borrowing is or may, upon or after funding thereof, be
in excess of borrowing permitted by or otherwise be contrary to this Agreement
and, upon such notice from the Agent, if any, such Money Market Borrowing shall
be canceled and each of the Money Market Notice and the Money Market
Confirmation or Confirmations relating thereto shall be deemed withdrawn and
shall be of no effect.
(b) Money Market Confirmation. Each Money Market Loan shall be made
pursuant to a Money Market Confirmation in substantially the form of Exhibit D,
completed and transmitted from the Bank making such Money Market Loan to the
Company by facsimile or other method reasonably calculated to result in receipt
by the Company before funding. Upon funding of the loan, the Company shall be
bound by the terms specified in such Money Market Confirmation, which shall
include the information required to be set forth in the Money Market Notice as
well as the rate or rates of interest applicable to such Money Market Loan and
all other terms of such Money Market Loan, provided, that such Money Market
Confirmation may provide that certain specified terms of this Agreement
pertaining to ABR Loans or Eurodollar Loans are to apply to such Money Market
Borrowing.
(c) Reliance. The Agent may rely and act upon notice given by
telephone or in writing by individuals reasonably believed by the Agent to be
those designated to the Agent by the Company or by any Bank in writing from time
to time, without waiting for receipt of the Money Market Notice, and the Company
hereby agrees to indemnify and hold harmless the Agent from and against any and
all losses, costs, expenses, damages, claims, actions or other proceedings
relating to such reliance.
Section 2.07. Funding of Money Market Loans . No earlier than the
time specified in Section 2.06(a) for the Agent to give notice concerning
cancellation of the Money Market Borrowing (unless the Agent shall have earlier
informed each Bank making a Money Market Loan on such Money Market Funding Date
that it intends to give no such notice) and no later than 1:00 p.m. (Los Angeles
time) on the Money Market Funding Date, each Bank will make available the Money
Market Loan, if any, to be made by such Bank as part of the Money Market
Borrowing requested to be made on such date in the manner provided below. All
amounts shall be made available to the Company in Dollars and immediately
available funds at the Company's account specified in the relevant Notice of
Money Market Borrowing.
Section 2.08. Money Market Notes . The Money Market Loans of each
Bank shall be evidenced by a Money Market Note payable to the order of each
Bank. The Money Market Note of each Bank shall (i) be in the principal amount
of $45,000,000, or such amount less than $45,000,000 as the Company and such
Bank may agree,(ii) be dated not later than the date of the initial Money Market
Notice relating to a Money Market Loan made by such Bank 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 in
the applicable Money Market Confirmations. Each Bank is authorized to indicate
upon the grid attached to its Money Market Note all Money Market 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 Money Market 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 Money Market Notes.
Section 2.09. Certain Fees. (a) The Company shall pay to the Agent
for the pro rata 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 for the actual
number of days involved) 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 of the amendment and
restatement hereof, on any date that the Total Commitment is canceled or reduced
pursuant to Section 2.04 (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 (i) on the
date of the amendment and restatement hereof, a structuring fee, and (ii) on the
date of the amendment and restatement hereof and each anniversary thereafter, an
administrative fee, each pursuant to the letter, dated September 22, 1998 (the
"Fee Letter"), between the Company and the Agent or as may hereafter be agreed
to between the Agent and the Company.
(c) The Company shall pay to the Agent for the account of the several
Banks upfront fees based upon the Commitment of each Bank as such upfront fees
are described in the Fee Letter.
Section 2.10. Optional Prepayment . The Company shall have the
right, on not less than three Business Days' written notice to the Agent in the
case of Eurodollar Loans, on not less than one Business Day's written notice to
the Agent in the case of ABR Loans, or such other written notice as may be
agreed to by the Company and the Bank making such Money Market Loan in the case
of Money Market 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 $250,000 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 or,
in the case of Money Market Loans, such other compensation as may be agreed to
by the Company and the Bank making such Money Market Loan. 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 Committed Loan Request or in a
Conversion/Continuance Request that the Committed Loans (or portions thereof)
bear interest as Eurodollar Loans, the Committed Loans shall bear interest as
ABR Loans.
(b) Each Money Market Loan shall bear interest at the rate per annum
and subject to change or adjustment, if any, as agreed to by the Company and the
Bank making such Money Market Loan and as set forth in a Money Market
Confirmation.
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 ABR
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 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 Eurodollar 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 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 Committed Loans (and any Money Market Loans
allowing the option described in this Section 3.04), 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/Continuance 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 Committed 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.
(d) To the extent agreed to by the Company and any Bank making a Money
Market Loan, such Money Market Loan may be continued as a Money Market Loan.
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 thereon 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; with respect to Eurodollar
Loans, the rate of interest applicable to each such Eurodollar Loan; and, with
respect to Money Market Loans, the agreed-upon rate of interest applicable to
such Money Market Loan, changing as and when said rate shall change if such rate
shall be subject to change. 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 Committed 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 . (a) All payments of principal and
interest on Money Market Loans and under Money Market Notes shall be made
without set-off (i) to each of the Banks entitled thereto, for its account, or
(ii) if an Event of Default has occurred and is continuing, to the Agent for the
account of the Banks entitled thereto, in each case, in lawful money of the
United States and in immediately available funds at the office of such Bank
specified in the relevant Money Market Confirmation, provided that the Company
shall give the Agent notice, confirmed by the relevant Bank, of all payments or
prepayments of principal upon any Money Market Loans made directly to any Bank
on the same business day on which such payments are made.
(b) All other payments by the Company hereunder and under the
Committed 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 2.10 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) Eurodollar Loans or Money Market
Loans bearing interest on the basis of a similar variable interbank rate 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, or (v) the Eurodollar Loans or Money Market Loans bearing interest on
the basis of a similar variable interbank rate 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 Money Market Loans, as the case may be, 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 of the amendment and
restatement 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 of the amendment and restatement hereof but not effective
until after the date of the amendment and restatement 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 addi
tional 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 practical, 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 automati
cally 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 Committed Loan Request or Conversion/Continuance 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, regulation, 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, 1997, 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) The unaudited consolidated balance sheets of the Company and its
Subsidiaries as of March 31, 1998, and June 30, 1998, together with unaudited
and consolidated statements of income for the three month and six month periods
then ended and the unaudited statements of cash flows for the three months and
six months, respectively, then ended, 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, subject to the omission or curtailment
of footnotes. As of the date hereof, there are no material liabilities, direct
or indirect, fixed or contingent, of the Company and any of its Subsidiaries as
of the dates of such balance sheets which are not reflected therein or in the
notes thereto.
(iii) There has been no Material Adverse Change.
(iv) Since December 31, 1997, there has not occurred any fact, event or
condition which could have a Material Adverse Effect.
(i) Taxes. The Company and each of its Subsidiaries 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 pur
chasing or carrying, any "margin stock" as defined in 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, 1997, 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 incorpor
ation, 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 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, or liability under, 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.
(u) Year 2000. The Company and its Subsidiaries have reviewed the
effect of the Year 2000 Issue on the computer software, hardware and firmware
systems and equipment containing embedded microchips used by the Company and its
Subsidiaries in the conduct of their businesses. The Company and its
Subsidiaries are undertaking reasonable efforts to assess the efforts of its
investment banks, commercial banks, primary lessees and major vendors to deal
with the Year 2000 Issue. The costs to the Company and its Subsidiaries of any
reprogramming required as a result of the Year 2000 Issue to permit the proper
functioning of the systems and equipment of the Company and its Subsidiaries and
the proper processing of data and the testing of such reprogramming are not
reasonably expected to result in an Event of Default or to have a Material
Adverse Effect on the business, properties, condition (financial or otherwise)
or operations of the Company and its Subsidiaries, taken as a whole. The term
"Year 2000 Issue" means the failure of computer software, hardware and firmware
systems and equipment containing embedded computer chips to properly receive,
transmit, process, manipulate, store, retrieve, retransmit or in any other way
utilize data and information due to the occurrence of the year 2000 or the
inclusion of dates on or after January 1, 2000.
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 from the date of the amendment and restatement hereof
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 Amended and
Restated 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
Committed Notes in the principal amounts equal to each such Bank's Commitment,
and Money Market Notes in the principal amounts equal to the Total Commitment,
each 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) with respect to the States
of Maryland, California and Texas.
(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 of the amendment and restatement
hereof, of Latham & Watkins, special counsel for the Company, in substantially
the form of Exhibit G, and of Ballard, Spahr, Andrews & Ingersoll, special
Maryland counsel for the Company, in substantially the form of Exhibit H.
(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 of the amendment and
restatement hereof, pursuant to the Fee Letter.
(i) Certain Fees and Expenses. The Agent shall have received (i)
those certain fees that are payable as described in Section 2.09 hereof and
(ii) those fees and expenses of counsel to the Agent and the Lead Arranger, as
described in Section 12.03 hereof, that have been incurred up to the date of
amendment and restatement hereof and of which the Agent has given the Company
notice.
Section 6.02. Conditions to All Loans . The obligations 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 (upon such satisfaction or written waiver each
Bank will give a written confirmation of the same to the Company on request):
(a) Committed Loan Request/Money Market Notice. (1) For each
Committed Loan, the Agent shall have received a Committed Loan Request in
substantially the form of Exhibit B. (2) For each Money Market Borrowing, the
Agent shall have received a Money Market Notice in substantially the form of
Exhibit C and the Company shall have acknowledged a Money Market Confirmation in
substantially the form of Exhibit D.
(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, 1997 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 Claims 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 com
munication 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.
(l) Year 2000 Covenant. The Company shall take, and shall cause each
of its Subsidiaries to take, all necessary action to complete in all material
respects by September 30, 1999, the reprogramming of computer software, hardware
and firmware systems and equipment containing embedded microchips owned or
operated by or for the Company and its Subsidiaries required as a result of the
Year 2000 Issue to permit the proper functioning of such computer systems and
other equipment and the testing of such systems and equipment, as so
reprogrammed, other than action for which the failure to complete would not have
a Material Adverse Effect on the business, properties, condition (financial or
otherwise) or operations of the Company and its Subsidiaries, taken as a whole.
At the request of the Agent, the Company shall provide, and shall cause each of
its Subsidiaries to provide, to the Agent reasonable assurance of compliance
with the preceding sentence.
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)(ii),
does not exceed 30% 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 30% of Consolidated Total Assets.
(b) Subsidiary Indebtedness. Permit any Subsidiary to create, incur,
assume or suffer to exist any Indebtedness, except (i) Indebtedness to the
Company or any other Subsidiary, or (ii) 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 30% 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) (exclusive of Liens to secure
Indebtedness pursuant to Section 7.02(b)(i)) shall not exceed 30% 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 not 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 ICBA Bank Analysis 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.
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 $300,000,000.
(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 Funds from 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 Committed Note or Money Market 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.
In the case of any payment allocable to more than one party hereto that are made
with respect to obligations pursuant to this Agreement or any Note incurred
prior to the date of the amendment and restatement hereof, such payments shall
be apportioned, as applicable and to the extent that such payment is
attributable to the period prior to the date of the amendment and restatement
hereof, according to each such party's Commitment or other rights hereunder as
they existed prior to such date.
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 CT
Corporation System, Inc., with offices on the date hereof at 1633 Broadway, New
York, New York 10019, 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 fees and expenses of the Agent and the Lead Arranger
(including the reasonable out-of-pocket fees and expenses of Sullivan &
Cromwell, as counsel to the Agent and the Lead Arranger) in connection with the
preparation and negotiation of this Agreement and the other Credit Documents,
any amendments, supplements or modifications hereto or thereto, in each case
whether or not the transactions contemplated hereby or thereby are consummated
and in connection with the consummation of the transactions contemplated hereby
or thereby (ii) all reasonable out-of-pocket fees and expenses incurred by the
Agent and any Bank, including reasonable out-of pocket 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 fees and expenses of the Agent
and the Lead Arranger, including reasonable out-of-pocket 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 Sections 2.02 or 2.06 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
MacArthur Court
9th Floor
Newport Beach, California 92660
Telecopy: (9494) 221-0607
Attention: Treasurer
with copies to:
Latham & Watkins
633 West Fifth Street
Suite 4000
Los Angeles, California 90071
Telecopy: (213) 891-8763
Attention: Glen B. Collyer
If to the Agent, at its address as indicated on the signature pages
hereof, with a copy to:
Sullivan & Cromwell
1888 Century Park East, 21st Floor
Los Angeles, California 90067-1725
Telecopy: (310) 712-8800
Attention: Alison S. 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 $3,000,000; 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 trans
ferred, 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, affiliates, 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) The Company may at its option, request all the
Banks then party to this Agreement to extend their scheduled Termination Dates
by 364 calendar days by means of a letter in substantially the form of Exhibit
I, addressed to each such Bank and the Agent. Not later than 30 days after
receipt of the request to extend the Termination Dates, each such Bank electing
(in its sole discretion) so to extend its scheduled Termination Date shall
execute and deliver 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 by 364 calendar days so as to fall in October
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: /s/ Devasis Ghose
Name: Devasis Ghose
Title: Senior Vice President
THE BANK OF NEW YORK,
as Agent for the Banks
By: /s/ Rebecca K. Levine
Name: Rebecca K. Levine
Title: Vice President
Address for Notices:
One Wall Street
18th Floor
New York, NY 10286
Attn: Kalyani Bose
Fax: (212) 635-6365
With a copy to:
The Bank of New York
10990 Wilshire Boulevard
Suite 1125
Los Angeles, CA 90024
Attn: Lisa Y. Brown
Fax: (310) 996-8667
<PAGE>
Commitment: $11,875,000 THE BANK OF NEW YORK
as a Bank
By: /s/ Rebecca K. Levine
Name: Rebecca K. Levine
Title: Vice President
Address for Notices:
One Wall Street
18th Floor
New York, NY 10286
Attn: Kalyani Bose
Fax: (212) 635-6365
With a copy to:
The Bank of New York
10990 Wilshire Boulevard
Suite 1125
Los Angeles, CA 90024
Attn: Lisa Y. Brown
Fax: (310) 996-8667
Eurodollar Lending Office:
One Wall Street
18th Floor
New York, NY 10286
Attn: Kalyani Bose
Fax: (212) 635-6365
<PAGE>
Commitment: $3,750,000 THE SUMITOMO BANK, LIMITED
as a Bank
By: /s/ Goro Hirai
Name: Goro Hirai
Title: Joint General Manager
Address for Notices:
777 South Figueroa Street, Suite 2600
Los Angeles, CA 90017
Attn: Peter Byun/Gail Motonaga
Fax: (213) 623-6832
With a copy to:
Attn:
Fax:
Eurodollar Lending Office:
777 S. Figueroa Street, Suite 2600
Los Angeles, CA 90017
Attn: Miriam Delgado
Fax: (213) 623-6832
<PAGE>
Commitment: $3,750,000 BANK OF MONTREAL
as a Bank
By: /s/ Kanu Modi
Name: Kanu Modi
Title: Director
Address for Notices:
Attn:
Fax:
With a copy to:
Attn:
Fax:
Eurodollar Lending Office:
Attn:
Fax:
<PAGE>
Commitment: $5,000,000 KBC BANK, N.V.
as a Bank
By: /s/ Robert Snauffer
Name: Robert Snauffer
Title: First Vice President
By: /s/ Michael V. Curran
Name: Michael V. Curran
Title: Vice President
Address for Notices:
125 West 55th Street
New York, NY 10019
Attn:
Fax:
With a copy to:
Attn:
Fax:
Eurodollar Lending Office:
KBC Bank N.V. - Grand Cayman Branch
125 West 55th Street
New York, NY 10019
Attn:
Fax:
<PAGE>
Commitment: $6,250,000 WELLS FARGO BANK
as a Bank
By: /s/ Charles C. Warner
Name: Charles C. Warner
Title: Vice President
Address for Notices:
201 Third Street, 8th Floor
San Francisco, CA 94103
Attn: Loan Accounting/Syndications
Fax: (415) 975-6770
With a copy to:
333 South Grand Avenue, 3rd Floor
Los Angeles, CA 90071
Attn: Charles C. Warner
Fax: (213) 687-3501
Eurodollar Lending Office:
201 Third Street, 8th Floor
San Francisco, CA 94103
Attn:
Fax:
<PAGE>
Commitment: $3,750,000 Bank of Hawaii
as a Bank
By: /s/ David L. Ward
Name: David L. Ward
Title: Officer
Address for Notices:
P.O. Box 2715
Honolulu, HI 96803-2715
949 Kamokila Blvd
2nd Floor, West Wing
Kapolai, HI 96707
Attn: Donna Arakawa
Fax: (808) 693-1672
With a copy to:
Attn:
Fax:
Eurodollar Lending Office:
Same as above
Attn: Donna Arakawa
Fax: (808) 693-1672
<PAGE>
Commitment: $10,625,000
NATIONSBANK, N.A. (formerly
known as NATIONSBANK OF TEXAS)
as a Bank
By: /s/ F. Scott Singhoff
Name: F. Scott Singhoff
Title: Senior Vice
President
Address for Notices:
NationsBank, N.A.
101 N. Tryon St.
15th Floor
Charlotte, N.C. 28255
Attn: Mathew Menz
Fax: 704/386-8694
With a copy to:
NationsBank, N.A.
700 Louisiana Street
8th Floor
Houston, Texas 77002
Attn: F. Scott Singhoff
Fax: 713/247-6719
Eurodollar Lending Office:
NationaBank, N.A.
101 N. Tryon St.
15th Floor
Charlotte, N.C. 28255
Attn: Mathew Menz
Fax: 704/386-8694
<PAGE>
EXHIBIT A
FORM OF CONVERSION/CONTINUANCE REQUEST
[Dated as provided
in Section 3.04]
The Bank of New York
c/o The Bank of New York Representative Office
10990 Wilshire Boulevard, Suite 1700
Los Angeles, California 90024
Attn: ____________________
Health Care Property Investors, Inc. (the "Company") hereby gives
notice of its intention to [convert/continue] [$___________] [the entire
outstanding amount] of its [ABR Loans] [Eurodollar Loans] with an Interest
Period of ____ days and ending on __________, ____] [to/as] [ABR Loans]
[Eurodollar Loans], pursuant to the Amended and Restated $45,000,000 Revolving
Credit Agreement, dated as of October 22, 1997, and as amended and restated as
of September 30, 1998, among the Company, the Banks, The Bank of New York, as
Agent and NationsBank of Texas, N.A., as Co-Agent(as amended, supplemented or
otherwise modified from time to time, the "Agreement"), such
[conversion/continuance] to be effective as of ___________, ____. [The Interest
Period for the Eurodollar Loans shall be _____ days.]
Unless otherwise defined herein, capitalized terms used herein shall
have the respective meanings specified in the Agreement.
HEALTH CARE PROPERTY
INVESTORS, INC.
By:_______________________
Name:
Title:
<PAGE>
EXHIBIT B
FORM OF COMMITTED LOAN REQUEST
[Dated as provided
in Section 2.02]
The Bank of New York
c/o Bank of New York Representative Office
10990 Wilshire Boulevard, Suite 1700
Los Angeles, California 90024
Attn: ____________________
Health Care Property Investors, Inc. (the "Company") hereby gives
notice of its intention to borrow $____________ of Loans on _________, ____
pursuant to the Amended and Restated $45,000,000 Revolving Credit Agreement,
dated as of October 22, 1997, and as amended and restated as of September 30,
1998, among the Company, the Banks, The Bank of New York, as Agent and
NationsBank of Texas, N.A., as Co-Agent (as amended, supplemented or otherwise
modified from time to time, the "Agreement").
The Company hereby confirms that the amounts of Loans and Money Market
Loans outstanding on the date hereof is as follows:
Total Commitment $__________
Outstanding Committed Loans $__________
Outstanding Money Market Loans $__________
Availability $__________
The Company also hereby confirms that each of the representations and
warranties (other than the representations and warranties that speak as of a
specific date) contained in Article V of the Agreement is true and correct on
the date hereof and, after giving effect to this borrowing, will be true and
correct on the proposed borrowing date as though such representation or warranty
had originally been made on such dates. No Default or Event of Default has
occurred and is continuing, nor will any such event occur as a result of this
borrowing.
Unless otherwise defined herein, capitalized terms used herein shall
have the respective meanings specified in the Agreement.
HEALTH CARE PROPERTY
INVESTORS, INC.
By:_______________________
Name:
Title:
<PAGE>
EXHIBIT C
FORM OF MONEY MARKET NOTICE
[Dated as provided
in Section 2.06(a)]
The Bank of New York, as Agent
c/o Bank of New York Representative Office
10990 Wilshire Boulevard, Suite 1700
Los Angeles, California 90024
Attn: ____________________
Pursuant to the Amended and Restated $45,000,000 Revolving Credit
Agreement, dated as of October 22, 1997, and as amended and restated as of
September 30, 1998, among Health Care Property Investors, Inc. (the "Company"),
the banks named therein, The Bank of New York, as Agent, and NationsBank of
Texas, N.A., as Co-Agent (as amended, supplemented or otherwise modified from
time to time, the "Agreement"), the Company and the banks named below hereby
give notice of their agreement to complete a Money Market Borrowing consisting
of the Money Market Loans described below.
Money Market Funding Date:
[Duplicate for each Money Market Loan:]
Bank:
Principal Amount:
Maturity:
Aggregate Principal Amount:
The Company also hereby confirms, for the benefit of the Agent and the
Bank making such Money Market Loan, if such bank so requires, that each of the
representations and warranties (other than the representations and warranties
that speak as of a specific date) contained in Article V of the Agreement is
true and correct on the date hereof and, after giving effect to this borrowing,
will be true and correct on the proposed borrowing date as though such
representation or warranty had originally been made on such dates. No Default
or Event of Default has occurred and is continuing, nor will any such event
occur as a result of this borrowing.
Unless otherwise defined herein, capitalized terms used herein shall
have the respective meanings specified in the Agreement.
HEALTH CARE PROPERTY
INVESTORS, INC.
By:_______________________
Name:
Title:
<PAGE>
Exhibit D
Form of Money Market Confirmation
[Date]
Health Care Property Investors, Inc.
10990 Wilshire Boulevard
Suite 1200
Los Angeles, California 90024
Attention:____________
Ladies and Gentlemen:
This instrument constitutes a Money Market Confirmation under, and as
defined by, the Amended and Restated $45,000,000 Revolving Credit Agreement,
dated as of October 22, 1997 and as amended and restated as of September 30,
1998 (as amended, modified or supplemented, the "Credit Agreement") among Health
Care Property Investors, Inc. (the "Company"), The Bank of New York, in its
individual corporate capacity and as Agent, and certain financial institutions
referred to therein. Terms not otherwise expressly set forth herein shall have
the meanings set forth in the Credit Agreement.
The undersigned Bank hereby confirms to the Company that the Bank has
agreed to make, and the Company has agreed to accept, [a] Money Market Loan[s]
as follows:
.
[Money Market Loan no. ___*]
(a) Principal Amount:
(b) Funding Date:
(c) Loan Period (not to exceed 270 days):
(d) Interest Rate:
By acknowledgment of this Confirmation and acceptance of funds
pursuant to the Money Market Loan, the Company confirms that [(i) each of the
representations and warranties (other than the representations and warranties
that speak as of a specific date) contained in Article V of the Agreement is
true and correct on the date hereof and, after giving effect to this borrowing,
will be true and correct on the proposed borrowing date as though such
representation or warranty had originally been made on such dates and (ii)] no
Default or Event of Default has occurred and is continuing, nor will any such
event occur as a result of this borrowing.
[NAME OF BANK]
By: __________________________
Name:
Title:
Acknowledged and accepted:
HEALTH CARE PROPERTY INVESTORS, INC.
By: __________________________
Name:
Title:
<PAGE>
EXHIBIT E
FORM OF COMMITTED NOTE
$__________ ___________, 1998
HEALTH CARE PROPERTY INVESTORS, INC., a Maryland corporation (the
"Company"), for value received, hereby promises to pay on the Termination Date
to the order of (the "Bank"), at the office of The Bank of
New York, as Agent, at One Wall Street, 22nd Floor, New York, New York 10286, in
lawful money of the United States, the principal sum of $__________, or if less,
the aggregate unpaid principal amount of all Committed Loans made by the Bank to
the Company pursuant to the Agreement (hereinafter defined), without relief from
valuation and appraisement laws.
This Note shall bear interest, and such interest shall be payable, as
set forth in the Agreement for ABR Loans and Eurodollar Loans. Upon the
occurrence and during the continuation of an Event of Default, this Note shall
bear interest at the default rate pursuant to Section 3.05 of the Agreement.
Except as otherwise provided in the Agreement, with respect to
Eurodollar Loans, if interest or principal on the Loan evidenced by this Note
becomes due and payable on a day which is not a Business Day, the maturity
thereof shall be extended to the next succeeding Business Day, and interest
shall be payable thereon at the rate herein specified during such extension.
This Note is one of the Committed Notes referred to in the Amended and
Restated Revolving Credit Agreement, dated as of October 22, 1997 and as amended
and restated as of August __, 1998 (as amended, supplemented or otherwise
modified from time to time, the "Agreement"), among the Company, the Banks, The
Bank of New York, as Agent, and NationsBank of Texas, N.A. as Co-Agent, and is
subject to prepayment in whole or in part and its maturity is subject to
acceleration upon the terms provided in the Agreement. Unless otherwise defined
herein, capitalized terms used herein shall have the respective meanings
specified in the Agreement.
The Bank is hereby authorized to record on the schedule annexed
hereto, and any continuation sheets which the Bank may attach hereto, (i) the
date and amount of each Committed Loan made by the Bank, (ii) the character
thereof as an ABR Loan, a Eurodollar Loan or a combination thereof, (iii) the
interest rate (without regard to the Applicable Margin and Interest Period (if
any) applicable to each Eurodollar Loan), and (iv) the date and amount of each
conversion of, and each payment or prepayment of principal of, any such
Committed Loan. No failure to record or any error in so recording shall affect
the obligation of the Company to repay the Committed Loans, together with
interest thereon, as provided in the Agreement, and the outstanding principal
balance of the Committed Loans made by the Lender as set forth in such schedule
shall be presumed correct absent manifest error.
This Note shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York.
All Committed Loans made by the Bank to the Company pursuant to the
Agreement and all payments of principal hereof and interest thereon may be
indicated by the Bank upon the grid attached hereto which is a part of this
Note. Such notations shall be presumptive as to the aggregate unpaid principal
amount of and interest on all Loans made by the Bank pursuant to the Agreement.
HEALTH CARE PROPERTY
INVESTORS, INC.
By:_______________________
Name:
Title:
<PAGE>
Loan and Payments of Principal and Interest
<TABLE>
<CAPTION>
Interest Interest Name of
Method Period (if Amount of Unpaid Amount of Person
Amount (ABR or Eurodollar Principal Principal Interest Making
Date of Loan Eurodollar Loan) Paid Balance Paid Notation
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT F
FORM OF MONEY MARKET NOTE
$____________ ___________, 1998
HEALTH CARE PROPERTY INVESTORS, INC., a Maryland corporation (the
"Company"), for value received, hereby promises to pay on the Termination Date
to the order of (the "Bank"), at the office of the
Bank, located at ____________________________________, in lawful money of the
United States, the principal sum of $45,000,000, or if less, the aggregate
unpaid principal amount of all Money Market Loans made by the Bank to the
Company pursuant to the Agreement (hereinafter defined), without relief from
valuation and appraisement laws.
This Note shall bear interest, and such interest shall be payable, as
set forth in the Money Market Confirmations given by the Bank to the Company
pursuant to the Agreement. Upon the occurrence and during the continuation of
an Event of Default, this Note shall bear interest at the default rate pursuant
to Section 3.05 of the Agreement.
Except as otherwise provided in the Agreement, if interest or
principal on the Loan evidenced by this Note becomes due and payable on a day
which is not a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day, and interest shall be payable thereon at the rate
herein specified during such extension.
This Note is one of the Money Market Notes referred to in the Amended
and Restated $45,000,000 Revolving Credit Agreement, dated as of October 22,
1997, and as amended and restated as of September 30, 1998 (as amended,
supplemented or otherwise modified from time to time, the "Agreement"), among
the Company, the Banks, The Bank of New York, as Agent, and NationsBank of
Texas, N.A., as Co-Agent, and is subject to prepayment in whole or in part and
its maturity is subject to acceleration upon the terms provided in the
Agreement. Unless otherwise defined herein, capitalized terms used herein shall
have the respective meanings specified in the Agreement.
The Bank is hereby authorized to record on the schedule annexed
hereto, and any continuation sheets which the Bank may attach hereto, (i) the
date and amount of each Money Market Loan made by the Bank, (ii) loan period of
such Money Market Loan, (iii) the characterization of the Money Market Loan,
including any election to compute amounts payable on such Money Market Loan by
reference to amounts payable on an ABR Loan or a Eurodollar Loan under the
Agreement, (iv) the interest rate (without regard to the Applicable Margin and
Interest Period (if any) applicable to any Money Market Loan), and (v) the date
and amount of each payment or prepayment of principal of and (to the extent
permitted pursuant to applicable Money Market Confirmations) each conversion of,
any such Money Market Loan. No failure to record or any error in so recording
shall affect the obligation of the Company to repay the Money Market Loans,
together with interest thereon, as provided in the Agreement, and the
outstanding principal balance of the Money Market Loans made by the Lender as
set forth in such schedule shall be presumed correct absent manifest error.
This Note shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York.
All Money Market Loans made by the Bank to the Company pursuant to the
Agreement and all payments of principal hereof and interest thereon may be
indicated by the Bank upon the grid attached hereto which is a part of this
Note. Such notations shall be presumptive as to the aggregate unpaid principal
amount of and interest on all Money Market Loans made by the Bank pursuant to
the Agreement.
HEALTH CARE PROPERTY
INVESTORS, INC.
By:_______________________
Name:
Title:
<PAGE>
Loan and Payments of Principal and Interest
<TABLE>
<CAPTION>
Name of
Amount of Unpaid Amount of Person
Loan Amount Interest Interest Interest Principal Principal Interest Making
Date Period of Loan Method Rate Period Paid Balance Paid Notation
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT G
Form of Opinion of Latham & Watkins LLP
EXHIBIT H
Form of Opinion of Ballard, Spahr, Andrews & Ingersoll
EXHIBIT I
Form of Extension Letter
__________, ____
The Bank of New York, as Agent
c/o Bank of New York Representative Office
10990 Wilshire Boulevard, Suite 1700
Los Angeles, California 90024
[Names and addresses of other Banks]
Reference is made to the Amended and Restated $45,000,000 Revolving
Credit Agreement, dated as of October 22, 1997 and as amended and restated as of
September 30, 1998 (as amended, supplemented or otherwise modified from time to
time, the "Agreement"), among Health Care Property Investors, Inc. (the
"Company"), the banks named therein, The Bank of New York, as Agent, and
NationsBank of Texas, N.A. as Co-Agent. Terms herein not otherwise defined
shall have the meanings set forth in the Agreement.
Pursuant to Section 11.12 of the Agreement, the Company hereby
requests all the Banks then party to this Agreement to extend their scheduled
Termination Dates by 364 calendar days.
The Company confirms (i) that each of the representations and
warranties (other than the representations and warranties that speak as of a
specific date) contained in Article V of the Agreement is true and correct on
the date hereof and, after giving effect to this extension, will be true and
correct on the date upon which the extension will be effective as though such
representation or warranty had originally been made on such dates and (ii) no
Default or Event of Default has occurred and is continuing, nor will any such
event occur as a result of this extension.
Very truly yours,
HEALTH CARE PROPERTY
INVESTORS, INC.
By:_______________________
Name:
Title:
_______________________________
1T of C is auto-generated. Please mark any additional headings.
*Duplicate as necessary for Banks making more than one Money Market Loan
pursuant to a Money Market Borrowing.
Exhibit 10.2
AMENDED AND RESTATED
$135,000,000
REVOLVING CREDIT AGREEMENT
dated as of October 22, 1997
and amended and restated as of September 30, 1998
among
HEALTH CARE PROPERTY INVESTORS, INC.
THE BANKS NAMED HEREIN
AND
THE BANK OF NEW YORK
as Agent and Issuing Bank
AND
BNY CAPITAL MARKETS, INC.
As Lead Arranger
<PAGE>
TABLE OF CONTENTS
Page
RECITALS 1
ARTICLE I
DEFINITIONS
Section 1.01. Definitions 1
ARTICLE II
THE LOANS
Section 2.01. Committed Loans 18
Section 2.02. Procedure for Committed Loans 19
Section 2.03. Committed Notes 20
Section 2.04. Cancellation or Reduction of the Commitment 20
Section 2.05. Money Market Loans 21
Section 2.06. Procedure for Money Market Loans 21
Section 2.07. Funding of Money Market Loans 22
Section 2.08. Money Market Notes 23
Section 2.09. Certain Fees 23
Section 2.10. Optional Prepayment 24
ARTICLE III
LETTERS OF CREDIT
Section 3.01. Letters of Credit 24
ARTICLE IV
INTEREST, METHOD OF PAYMENT, CONVERSION, ETC.
Section 4.01. Procedure for Interest Rate Determination 30
Section 4.02. Interest on ABR Loans 30
Section 4.03. Interest on Eurodollar Loans 31
Section 4.04. Conversion/Continuance 32
Section 4.05. Post Default Interest 33
Section 4.06. Maximum Interest Rate 33
ARTICLE V
DISBURSEMENT AND PAYMENT
Section 5.01. Pro Rata Treatment 33
Section 5.02. Method of Payment 34
Section 5.03. Compensation for Losses 34
Section 5.04. Withholding, Reserves and Additional Costs 35
Section 5.05. Unavailability 39
Section 5.06. Additional Costs in Respect of
Letters of Credit 39
Section 5.07. Commercial Practices in
Respect of Letters of Credit 40
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.01. Representations and Warranties 41
ARTICLE VII
CONDITIONS OF LENDING
Section 7.01. Conditions to the Availability
of the Commitment 49
Section 7.02. Conditions to All Loans 51
ARTICLE VIII
COVENANTS
Section 8.01. Affirmative Covenants 52
Section 8.02. Negative Covenants 56
Section 8.03. Financial Covenants 59
ARTICLE IX
EVENTS OF DEFAULT
Section 9.01. Events of Default 59
ARTICLE X
THE AGENT AND THE BANKS
Section 10.01. The Agency and Co-Agency 63
Section 10.02. The Agent's Duties 63
Section 10.03. Sharing of Payment and Expenses 64
Section 10.04. The Agent's Liabilities 65
Section 10.05. The Agent as a Bank 65
Section 10.06. Bank Credit Decision 65
Section 10.07. Indemnification 66
Section 10.08. Successor Agent 66
ARTICLE XI
CONSENT TO JURISDICTION; JUDGMENT CURRENCY
Section 11.01. Consent to Jurisdiction 67
ARTICLE XII
MISCELLANEOUS
Section 12.01. APPLICABLE LAW 68
Section 12.02. Set-off 68
Section 12.03. Expenses 68
Section 12.04. Amendments 69
Section 12.05. Cumulative Rights and No Waiver 69
Section 12.06. Notices 69
Section 12.07. Separability 70
Section 12.08. Assignments and Participations 71
Section 12.09. WAIVER OF JURY TRIAL 72
Section 12.10. Confidentiality 73
Section 12.11. Indemnity 73
Section 12.12. Extension of Termination Dates;
Removal of Banks;
Substitutions of Banks 74
Section 12.13. Knowledge of the Company 75
Section 12.14. Execution in Counterparts 75
TESTIMONIUM 57
SIGNATURES 57
EXHIBITS AND SCHEDULES
EXHIBIT A Form of Conversion/Continuance Request
EXHIBIT B Form of Committed Loan Request
EXHIBIT C Form of Money Market Notice
EXHIBIT D Form of Money Market Confirmation
EXHIBIT E Form of Letter of Credit Notice
EXHIBIT E Form of Committed Note
EXHIBIT E Form of Money Market Note
EXHIBIT H Form of Opinion of Latham & Watkins LLP
EXHIBIT I Form of Opinion of Ballard, Spahr, Andrews &
Ingersoll
EXHIBIT J Form of Extension Letter
SCHEDULE 5.01(a) Subsidiaries and Joint Ventures of the Company
<PAGE>
AMENDED AND RESTATED
$135,000,000 REVOLVING CREDIT AGREEMENT
AMENDED AND RESTATED $135,000,000 REVOLVING CREDIT AGREEMENT, dated as
of October 22, 1997 and amended and restated as of September 30, 1998 (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 as the Issuing Bank for Letters of Credit (the
"Issuing Bank"), NationsBank, N.A., successor by merger to NationsBank of Texas,
N.A. ("NationsBank"), as Co-Agent, and BNY Capital Markets, Inc., as Lead
Arranger:
W I T N E S S E T H:
WHEREAS, the Company has requested the Banks to lend up to
$135,000,000 to the Company on a revolving basis for general corporate purposes;
and
WHEREAS, the Company wishes to amend and restate its current credit
facility under the Revolving Credit Agreement, dated as of October 22, 1997,
among the Company, the banks named therein, and the Agent, to provide for, among
other things, the issuance of letters of credit in an amount up to $50,000,000.
NOW, THEREFORE, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
(a) Terms Generally. The definitions ascribed to terms in this
Section 1.01 and elsewhere in this Agreement shall apply equally to both the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be deemed
to be followed by the phrase "without limitation". The words "hereby",
"herein", "hereof", "hereunder" and words of similar import refer to this
Agreement as a whole (including any exhibits and schedules hereto) and not
merely to the specific section, paragraph or clause in which such word appears.
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, all references to "dollars" or "$" 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 8.02(a), 8.02(b),
8.02(c), 8.02(d) or 8.03 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
6.01(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 8.02(a), 8.02(b), 8.02(c) or 8.03 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 Committed Loans which bear interest at a rate
based upon the Base Rate and in the manner set forth in Section 4.02.
"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
7.01(h).
"Agent" shall have the meaning given to such term in the preamble of
this Agreement and shall also include any successor agent hereunder.
"Agreement" shall have the meaning given to such term in the preamble.
"Applicable Margin" shall mean the margin set forth in the following
chart applicable to the Pricing Level then in effect:
Pricing Level Applicable Margin
------------- -----------------
I 0.2500%
II 0.3000%
III 0.4000%
IV 0.5000%
V 0.7500%
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
and Pricing Level I is not applicable; "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 and neither Pricing Level I nor II
is applicable; "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 and neither Pricing Level I, II nor III is applicable; and
"Pricing Level V" shall be applicable for so long as neither Pricing Level I,
II, III nor IV is applicable.
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.
("Fitch") and Duff & Phelps Inc. ("D&P" and, collectively with S&P, Moody's and
Fitch, the "Rating Agencies") then has or have a publicly available Senior Debt
Rating or Ratings for the Company, then the pricing level shall be determined by
either (i) the higher of the ratings of S&P and Moody's if either Fitch or D&P
have a rating corresponding to such higher rating of S&P or Moody's, or (ii) the
lower of the ratings of S&P and Moody's if neither Fitch nor D&P have a rating
corresponding to the higher 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 Committed Loan
Request or Money Market Notice, as the case may be, 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, any Letter
of Credit, any payment of the Facility Fee or any Money Market Loan for which
another meaning for such term is not specified in the Money Market Notice, 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
international 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 obligation of any Person to
pay rent or other amounts under a Capital Lease.
"Co-Agent" shall mean NationsBank and shall also include any successor
co-agent hereunder.
"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 2.04 and (ii) after such Bank's Termination Date,
zero.
"Committed 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.
"Committed Loans" shall mean, collectively, ABR Loans and Eurodollar
Loans made pursuant to Section 2.01 to 2.03 and outstanding hereunder from time
to time.
"Committed Notes" shall mean, collectively, the promissory notes of
the Company, each substantially in the form of Exhibit F.
"Compliance Date" shall mean each of the date of this Agreement, each
Borrowing Date, each Conversion/Continuance 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 VI.
"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 8.01(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 8.01(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 8.01(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 8.01(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 8.01(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 8.01(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, the Notes, and the
Letters of Credit, as amended, supplemented or otherwise modified from time to
time.
"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 Act, the federal Toxic
Substances Control Act, the Federal Insecticide, Fungicide and Rodenticide Act
and 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 Committed Loans which bear interest at a
rate based upon Base LIBOR and in the manner set forth in Section 4.03.
"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
9.01.
"Facility Fee" shall have the meaning ascribed to such term in Section
2.09(a).
"Face Amount" of any Letter of Credit means, at any time, the maximum
amount available to be drawn under such Letter of Credit at such time (assuming
compliance at such time with all conditions to drawing).
"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 0.1250%
II 0.1500%
III 0.2000%
IV 0.2500%
V 0.3750%
"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.
"Fronting Fee" shall have the meaning ascribed to such term in Section
3.01(j) hereof.
"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 pronounce
ments 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 other
wise, 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 condi
tional 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 4.04 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.
"Issuing Bank" shall mean The Bank of New York, or any successor to
the duties, obligations and rights of The Bank of New York, in its capacity as
issuer of Letters of Credit hereunder.
"Lead Arranger" shall mean BNY Capital Markets, Inc.
"Letter of Credit" shall have the meaning ascribed to such term in
Section 3.01 hereof.
"Letter of Credit Commitment" shall have the meaning ascribed to such
term in Section 3.01(a) hereof.
"Letter of Credit Fee" shall have the meaning ascribed to such term in
Section 3.01(i) hereof.
"Letter of Credit Notice" shall have the meaning ascribed to such term
in Section 3.01(c) hereof.
"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)
"Loans" shall, collectively, mean the Committed Loans and the Money
Market Loans and, individually, any Committed Loan or any Money Market Loan.
"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, 1997.
"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 Funding Date" shall mean the date specified in the Money
Market Notice as the date of funding for such Money Market Borrowing.
"Money Market Borrowing" shall mean one or more Money Market Loans
made to the Company by one or more of the Banks and of which the Agent is given
notice by a Money Market Notice.
"Money Market Confirmation" shall mean the notice, in substantially
the form of Exhibit D, pertaining to a Money Market Loan, and made pursuant to
Section 2.06(b), duly completed and executed and personally delivered or
transmitted by facsimile to the Company.
"Money Market Loan" shall mean a Loan that is made pursuant to
Sections 2.05 to 2.08.
"Money Market Notes" shall mean, collectively, the promissory notes of
the Company, each substantially in the form of Exhibit G.
"Money Market Notice" shall mean the notice made pursuant to
Section 2.06(a), duly completed and executed by the Company and the Banks
proposing to make Money Market Loans and personally delivered or transmitted to
the Agent.
"Notes" shall mean, collectively, the Committed Notes and the Money
Market Notes.
"Participant" shall have the meaning ascribed to such term in Section
12.08(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 canceled or reduced to $0 or expired, the
proportion of such Bank's then outstanding Committed Loans to the aggregate
amount of Committed 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.
"Reimbursement Obligations" shall mean, collectively, the obligations
of the Company in respect of Letters of Credit then outstanding under
Section 3.01(g) to reimburse the Issuing Bank in respect of any drawing under a
Letter of Credit.
"Required Banks" shall mean at any date Banks having at least 51% of
the Total Commitment or, if the Total Commitment has been canceled 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
5.04(a).
"Termination Date" shall mean, with respect to any Bank, the earliest
to occur of (i) the fifth anniversary of the date of the amendment and
restatement of this Agreement or such later date as may be agreed to by such
Bank pursuant to Section 12.12 and (ii) the date on which the obligations of
such Bank to make loans hereunder shall terminate pursuant to Section 9.01 or
the Commitments shall be reduced to zero pursuant to Section 2.04.
"Total Commitment" shall mean the aggregate Commitment of all the
Banks.
"UCP" shall mean the Uniform Customs and Practices for Documentary
Credits (1993 Revisions), International Chamber of Commerce Publication No. 500,
as the same may be amended and in effect from time to time.
"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. Committed 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 7.02, each of the
Banks, severally and not jointly with the other Banks, agrees to make one or
more Committed 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) the aggregate principal amount of outstanding
Committed Loans, (ii) the aggregate principal amount of outstanding Money Market
Loans and (iii) the aggregate Face Amount of issued and outstanding Letters of
Credit may not exceed the Total Commitment.
Section 2.02 Procedure for Committed Loans . The Company may
borrow Committed Loans by delivering a written Committed 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. Committed 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 Committed 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 City time, on the Borrowing Date specified in such
Committed 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
Committed 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 7.02, the Agent shall disburse to the Company on the
requested Borrowing Date the Committed Loans requested in such Committed 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 Committed 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 Committed 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. Committed Notes . The Company's obligation to repay
the Committed Loans shall be evidenced by Committed Notes, one such Committed
Note payable to the order of each Bank. The Committed Note of each Bank shall
(i) be in the principal amount of such Bank's Commitment, (ii) be dated the date
of the initial Committed 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 Committed Note all
Committed 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 Committed 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 Committed Notes.
Section 2.04. Cancellation or Reduction of the Commitment . The
Company shall have the right, upon not less than three 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 or Letter of Credit remains outstanding; and
provided, further, that the amount of any partial reduction in the Total Commit
ment shall not exceed the remainder of (i) the Total Commitment on such date
minus (ii) the aggregate outstanding principal amount of Committed Loans and
Money Market Loans on such date. Partial reductions of the Total Commitment
shall be in the amount of $5,000,000 or in integral multiples of $1,000,000 in
excess thereof (or, if the aggregate outstanding amount of Loans is less than
$5,000,000, then all of such lesser amount). All such cancellations or
reductions shall be permanent.
Section 2.05. Money Market Loans . On the terms and subject to the
conditions of this Agreement, each Bank, severally and for itself alone, may
(but is not obligated to) make one or more Money Market Loans to the Company
from time to time on or after the date hereof and prior to such Bank's
Termination Date in amounts determined as indicated in the Money Market Notice
and for a term that, for each Money Market Loan, is not more than 270 days from
the date of funding of such Money Market Loan as provided in Section 2.07;
provided, however, that the sum of (i) the aggregate principal amount of
outstanding Committed Loans, (ii) the aggregate principal amount of outstanding
Money Market Loans and (iii) the aggregate Face Amount of issued and outstanding
Letters of Credit may not at any time exceed the Total Commitment.
Section 2.06. Procedure for Money Market Loans .
(a) Money Market Notice. The Company may, from time to time, approach one
or more of the Banks to determine whether such Bank or Banks will make one or
more Money Market Loans. The Company and any Bank or Banks shall, if each of
them in their sole discretion elects to do so, agree to enter into one or more
Money Market Loans as part of such proposed Money Market Borrowing on mutually
agreed-upon terms and notify the Agent by telephone, confirmed in writing by a
Money Market Notice, in the form of Exhibit C hereto, from the Company and the
Bank or Banks proposing to make Money Market Loans before 9:30 a.m. (Los Angeles
time) on the date of the funding of such Money Market Loan (the "Money Market
Funding Date"). Such Money Market Notice shall specify the amount of each Money
Market Loan that such Bank or Banks will make as part of such proposed Money
Market Borrowing (which amounts may, subject to the proviso in Section 2.05,
exceed each such Bank's Commitment), the Money Market Funding Date and the date
or dates of maturity thereof. At any time until 11:30 a.m., Los Angeles time,
on the Money Market Funding Date, the Agent may, but shall be under no
affirmative obligation to, notify any of the Banks proposing to make Money
Market Loans pursuant to such Money Market Notice or the Company that, taking
into consideration any other outstanding Committed Loan Request or Money Market
Notice, such Money Market Borrowing is or may, upon or after funding thereof, be
in excess of borrowing permitted by or otherwise be contrary to this Agreement
and, upon such notice from the Agent, if any, such Money Market Borrowing shall
be canceled and each of the Money Market Notice and the Money Market
Confirmation or Confirmations relating thereto shall be deemed withdrawn and
shall be of no effect.
(b) Money Market Confirmation. Each Money Market Loan shall be made
pursuant to a Money Market Confirmation in substantially the form of Exhibit D,
completed and transmitted from the Bank making such Money Market Loan to the
Company by facsimile or other method reasonably calculated to result in receipt
by the Company before funding. Upon funding of the loan, the Company shall be
bound by the terms specified in such Money Market Confirmation, which shall
include the information required to be set forth in the Money Market Notice as
well as the rate or rates of interest applicable to such Money Market Loan and
all other terms of such Money Market Loan, provided, that such Money Market
Confirmation may provide that certain specified terms of this Agreement
pertaining to ABR Loans or Eurodollar Loans are to apply to such Money Market
Borrowing.
(c) Reliance. The Agent may rely and act upon notice given by telephone
or in writing by individuals reasonably believed by the Agent to be those
designated to the Agent by the Company or by any Bank in writing from time to
time, without waiting for receipt of the Money Market Notice, and the Company
hereby agrees to indemnify and hold harmless the Agent from and against any and
all losses, costs, expenses, damages, claims, actions or other proceedings
relating to such reliance.
Section 2.07. Funding of Money Market Loans . No earlier than the
time specified in Section 2.06(a) for the Agent to give notice concerning
cancellation of the Money Market Borrowing (unless the Agent shall have earlier
informed each Bank making a Money Market Loan on such Money Market Funding Date
that it intends to give no such notice) and no later than 1:00 p.m. (Los Angeles
time) on the Money Market Funding Date, each Bank will make available the Money
Market Loan, if any, to be made by such Bank as part of the Money Market
Borrowing requested to be made on such date in the manner provided below. All
amounts shall be made available to the Company in Dollars and immediately
available funds at the Company's account specified in the relevant Notice of
Money Market Borrowing.
Section 2.08. Money Market Notes . The Money Market Loans of each
Bank shall be evidenced by a Money Market Note payable to the order of each
Bank. The Money Market Note of each Bank shall (i) be in the principal amount
of $135,000,000, or such amount less than $135,000,000 as the Company and such
Bank may agree,(ii) be dated not later than the date of the initial Money Market
Notice relating to a Money Market Loan made by such Bank 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 in
the applicable Money Market Confirmations. Each Bank is authorized to indicate
upon the grid attached to its Money Market Note all Money Market 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 Money Market 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 Money Market Notes.
Section 2.09. Certain Fees. The Company shall pay to the Agent for
the pro rata 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 for the actual
number of days involved) 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 of the amendment and
restatement hereof, on any date that the Total Commitment is canceled or reduced
pursuant to Section 2.04 (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 (i) on the date of
the amendment and restatement hereof, a structuring fee, and (ii) on the date of
the amendment and restatement hereof and each anniversary thereafter, an
administrative fee, each pursuant to the letter, dated September 22, 1998 (the
"Fee Letter"), between the Company and the Agent or as may hereafter be agreed
to between the Agent and the Company.
(c) The Company shall pay to the Agent for the account of the several
Banks upfront fees based upon the Commitment of each Bank as such upfront fees
are described in the Fee Letter.
Section 2.10. Optional Prepayment . The Company shall have the
right, on not less than three Business Days' written notice to the Agent in the
case of Eurodollar Loans, on not less than one Business Day's written notice to
the Agent in the case of ABR Loans, or such other written notice as may be
agreed to by the Company and the Bank making such Money Market Loan in the case
of Money Market 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 $250,000 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 5.03 or,
in the case of Money Market Loans, such other compensation as may be agreed to
by the Company and the Bank making such Money Market Loan. Subject to the terms
and conditions hereof, prepaid Loans may be reborrowed.
ARTICLE III
LETTERS OF CREDIT
Section 3.01. Letters of Credit. Subject to the terms and conditions
hereof, the Issuing Bank shall issue letters of credit (each, a "Letter of
Credit") for the account of the Company.
(a) The Letter of Credit Commitment at any time shall be equal to the
lesser of (x) $50,000,000 and (y) the difference between the Total Commitment
less the aggregate outstanding principal amount of Loans on such date.
(b) The Letters of Credit (A) shall have an aggregate Face Amount not in
excess of the Letter of Credit Commitment, (B) may, at the sole option of the
Issuing Bank, be renewable if so requested by the Company using the form for
such request then in general use by the Issuing Bank, and (C) shall have an
expiration date no later than the earlier of (i) 365 days after the date of
issuance thereof and (ii) five business days prior to the Termination Date.
(c) The Company shall, no later than 2:00 P.M. New York City time on the
day three business days (or such lesser period to which the Issuing Bank may
agree in writing) before the date on which issuance of a Letter of Credit is
desired, give the Agent written notice substantially in the form of Exhibit E
(effective upon receipt) (a "Letter of Credit Notice") specifying the date on
which each Letter of Credit is to be issued, the requested expiration date
thereof and the stated amount thereof, and attaching a proposed form of such
letter of credit accompanied by a completed form of application for issuance of
a letter of credit, using such standard form as shall then be in general use by
the Issuing Bank. Upon receipt of such notice, the Agent shall notify each Bank
of the contents thereof.
(d) Upon the date of issuance of each Letter of Credit, the Issuing Bank
shall be deemed, without further action by any party hereto, to have sold to
each Bank, and each Bank hereby irrevocably agrees to purchase and each Bank
shall be deemed, without further action by any party hereto, to have purchased
from the Issuing Bank, an undivided and continuing participation in such Letter
of Credit, in accordance with such Bank's Pro Rata Share.
(e) Upon receipt from the beneficiary of any Letter of Credit of any
demand for payment under such Letter of Credit, the Issuing Bank shall promptly
notify the Company as to the amount paid or to be paid as a result of such
demand and the respective payment date.
(f) Each Bank shall, upon request by the Issuing Bank, remit to the
Issuing Bank, through the Agent, such Bank's share (as determined in accordance
with Section 3.01(d) above) of the payment made by the Issuing Bank together
with interest thereon for each day from the day of demand through the day of
payment at a rate equal to the Federal Funds Rate, changing as and when said
rate shall change, plus, for each day from the day three business days after
such demand through the day of payment, two percent. If the Issuing Bank shall
have made such request to any Bank prior to 1:00 P.M. New York City time on a
Business Day, such payment shall be made by each Bank no later than 4:00 P.M.
New York City time on such Business Day, otherwise such payment shall be made no
later than 4:00 P.M. New York City time on the next Business Day.
(g) The Company shall, not later than 12:00 noon New York time on the date
of payment of each drawing, reimburse the Issuing Bank, through the Agent, for
any amounts paid by the Issuing Bank under any Letter of Credit. The Issuing
Bank shall promptly remit to each Bank, through the Agent, such Bank's share (as
determined in accordance with Section 3.01(d) above) of any payment received by
the Issuing Bank to the extent that such Bank has reimbursed the Issuing Bank in
accordance with clause (f) of this Section 3.01. To the extent that the Company
does not reimburse the Issuing Bank, by means of payment pursuant to this
paragraph (g) or by means of Loans issued pursuant to paragraph (h) of this
Section 3.01, for any payment by the Issuing Bank under any Letter of Credit on
the date of such payment, such amounts not reimbursed shall accrue interest,
payable on demand, at the rate per annum (on the basis of a 365-day year for the
actual number of days involved) equal to the sum of (i) 2% per annum and (ii)
the rate of interest then applicable to ABR Loans, changing as and when said
rate shall change.
(h) The Company may request that the Banks make a Committed Loan in order
to pay its Reimbursement Obligation in respect of any payment of each drawing
under any Letter of Credit. To the extent that the Company has not otherwise
paid such Reimbursement Obligation on the date of any such drawing, the Company
shall be deemed to have given a timely notice of request for Loans to be made on
such day as ABR Loans in an aggregate amount of such Reimbursement Obligation;
such Loans, if made consistently with the provisions of this Agreement, shall be
deemed to have been made on the date of such drawing. On the day that Loans are
to be made in order to pay such Reimbursement Obligation, each Bank shall,
subject to and in accordance with the terms and conditions of this Agreement
(including satisfaction of the conditions set forth in Article VII hereof), make
a Loan, the proceeds of which shall be applied to such Reimbursement Obligation;
provided, however, that such Loan may be in amounts less than the minimum
aggregate principal amount or in amounts other than in multiples of $100,000 in
excess thereof as required by Section 2.02(a); and provided further that, with
respect to such Loan, such Bank shall be required to make available to the
Issuing Bank under Section 2.02(b) only an amount equal to the difference, if
any, between the amount of such Loan and the amount remitted through the Agent
to the Issuing Bank pursuant to Section 3.01(f). Nothing in this paragraph (h)
shall limit each Bank's irrevocable obligations with respect to participations
in each Letter of Credit pursuant to this Section 3.01.
(i) The Company shall pay to the Agent for the account of each Bank a
letter of credit fee (the "Letter of Credit Fee") on such Bank's share (as
determined in accordance with Section 3.01(d) above) of each Letter of Credit in
the daily average undrawn Face Amount of such Letter of Credit for the period
from and including the date of issuance thereof to and including the date of
expiration or termination thereof at a rate per annum equal to the Applicable
Margin, such fee to be paid quarterly in arrears on the 1st day of each March,
June, September and December, and on the date of expiration of such Letter of
Credit; provided that if any such day is not a Business Day, such fee shall be
payable on the next preceding Business Day.
(j) The Company shall pay to the Issuing Bank for the sole account of the
Issuing Bank a letter of credit fronting fee (the "Fronting Fee"), based on the
aggregate daily average undrawn Face Amount of Letters of Credit outstanding
from time to time, pursuant to the Fee Letter, such Fronting Fee to be paid
quarterly in arrears on the last day of each March, June, September and
December; provided that if any such day is not a Business Day, such fee shall be
payable on the next preceding Business Day. The Company shall also pay such
other fees with respect to issuance, amendment, advising and like services by
the Issuing Bank as are generally charged to its customers by the Issuing Bank
for such services at the time such service is performed.
(k) The obligations of the Company under this Section 3.01 shall be
unconditional and irrevocable and shall be paid strictly in accordance with the
terms of this Agreement under all circumstances, including circumstances such
as: (a) any lack of validity or enforceability of any Letter of Credit or any
other Credit Document; (b) the existence of any claim, set off, defense or other
right that the Company or any other Person may have at any time against any
beneficiary or transferee of any Letter of Credit (or any Persons for whom any
such beneficiary or transferee may be acting), the Issuing Bank, any Bank or any
other Person, whether in connection with this Agreement, the transactions
contemplated hereby or any unrelated transaction; (c) any draft, certificate,
statement or other document presented under any Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect of any statement
therein being untrue or inaccurate in any respect; (d) payment to the
beneficiary of such Letter of Credit by the Issuing Bank under any Letter of
Credit against presentation of a draft or certificate that does not comply with
the terms of such Letter of Credit, or payment to the beneficiary of such Letter
of Credit by the Issuing Bank under the Letter of Credit in any other
circumstances in which conditions to payment are not met, except any such
payment resulting solely from the gross negligence or willful misconduct of such
Issuing Bank; or (e) any other event, condition or circumstance whatever,
whether or not similar to any of the foregoing. The Company bears the risk of,
and neither the Issuing Bank, any of its directors, officers, employees or
agents, nor any Bank, shall be liable or responsible for, any of the foregoing
matters, the use that may be made of any Letter of Credit or acts or omissions
of the beneficiary or any transferee in connection therewith.
(l) On each day during the period commencing with the issuance by the
Issuing Bank of any Letter of Credit and until such Letter of Credit shall have
expired or been terminated, the Commitment of each Bank shall be deemed to be
utilized for all purposes hereof (including Section 2.04) in an amount equal to
such Bank's share (as determined in accordance with Section 3.01(d) above) of
the then undrawn Face Amount of such Letter of Credit; provided, however, that
for the purpose of determining whether any requested Loan or Letter of Credit
would exceed the Total Commitment if made, on each day during the period
commencing with the giving of notice by the Company to the Issuing Bank of a
requested Letter of Credit pursuant to Section 3.01(c), the Commitment of each
Bank shall be deemed to be utilized in an amount equal to such Bank's Commitment
with respect to the then undrawn Face Amount of such Letter of Credit.
(m) The issuance by the Issuing Bank of each Letter of Credit shall, in
addition to the conditions precedent set forth in Article VII, be subject to the
conditions precedent that such Letter of Credit shall be in such form as shall
be satisfactory to the Issuing Bank in its reasonable discretion and that the
Company shall have executed and delivered such other instruments and agreements
relating to such Letter of Credit as the Issuing Bank shall have reasonably
requested.
(n) If, at any time, after the Issuing Bank has made payment on a demand
under a Letter of Credit and has received from any Bank such Bank's share of
such payment, and the Issuing Bank receives any payment or makes any application
of funds on account of the Company's Reimbursement Obligations under such Letter
of Credit arising from such payment, the Issuing Bank will pay to the Agent, for
the account of such Bank, such Bank's share (as determined in accordance with
Section 3.01(d) above) of such payment.
(o) If any amount received by the Issuing Bank on account of any Letter of
Credit Reimbursement Obligation shall be avoided, rescinded or otherwise
returned or paid over by the Issuing Bank for any reason at any time, whether
before or after the termination of this Agreement (or the Issuing Bank believes
in good faith that such avoidance, rescission, return or payment is required,
whether or not such matter has been adjudicated), each Bank shall, promptly upon
notice from the Issuing Bank, pay over to the Agent for the account of the
Issuing Bank its share (as determined in accordance with Section 3.01(d) above)
of such amount, together with its Pro Rata Share of any interest or penalties
payable with respect thereto.
(p) In the event that the obligations of any Bank to make Loans or of the
Issuing Bank to issue Letters of Credit terminates upon the occurrence of an
event of default or otherwise, upon such termination, the Company shall, prior
to the Termination Date, either (i) cause all Letters of Credit to be returned
to the Issuing Bank for cancellation or (ii) deposit with the Issuing Bank an
amount of cash equal to the Face Amount of all Letters of Credit not so returned
to the Issuing Bank upon such termination. The Issuing Bank shall hold funds so
deposited for the ratable benefit of the Banks as collateral against the
obligation of the Banks to pay such Letters of Credit in the event of any draw
with respect hereto. The Issuing Bank shall return to the Company any amounts
deposited with it pursuant to this Section 3.01(p) promptly upon the expiration
or cancellation of each Letter of Credit with respect to which such funds were
deposited.
(q) Notwithstanding any other provision hereof, each Bank hereby agrees
that its obligation to participate in each Letter of Credit issued in accordance
herewith, its obligation to make the payments specified in this Section 3.01,
and the right of the Issuing Bank to receive such payments in the manner
specified therein, are each absolute, irrevocable and unconditional and shall
not be affected by any event, condition or circumstance whatsoever. The failure
of any Bank to make any such payment shall not relieve any other Bank of its
funding obligation hereunder on the date due, but no Bank shall be responsible
for the failure of any other Bank to meet its funding obligations hereunder.
ARTICLE IV
INTEREST, METHOD OF PAYMENT, CONVERSION, ETC.
Section 4.01. Procedure for Interest Rate Determination. Unless
the Company shall request in a Committed Loan Request or in a
Conversion/Continuance Request that the Committed Loans (or portions thereof)
bear interest as Eurodollar Loans, the Committed Loans shall bear interest as
ABR Loans.
(b) Each Money Market Loan shall bear interest at the rate per annum and
subject to change or adjustment, if any, as agreed to by the Company and the
Bank making such Money Market Loan and as set forth in a Money Market
Confirmation.
Section 4.02. Interest on ABR Loans . Each ABR Loan shall bear
interest from the date of such ABR Loan until maturity thereof or until such ABR
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 Base Rate in effect
from time to time, which rate shall change as and when said Base Rate shall
change.
Section 4.03. Interest on Eurodollar Loans . Each Eurodollar Loan
shall bear interest from the date of such Eurodollar 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 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 4.04. Conversion/Continuance. 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 Committed Loans (and any Money Market Loans
allowing the option described in this Section 4.04), 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/Continuance 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 Committed Loans or
portions thereof as to which the Conversion/Continuance Request was made shall
commence to accrue interest as set forth in this Article IV 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
4.04; 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.
(d) To the extent agreed to by the Company and any Bank making a Money
Market Loan, such Money Market Loan may be continued as a Money Market Loan.
Section 4.05. Post Default Interest . Upon the occurrence and during
the continuation of an Event of Default, all Loans and any unpaid installment of
interest thereon 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; with respect to Eurodollar
Loans, the rate of interest applicable to each such Eurodollar Loan; and, with
respect to Money Market Loans, the agreed-upon rate of interest applicable to
such Money Market Loan, changing as and when said rate shall change if such rate
shall be subject to change. Interest payable pursuant to this Section 4.05
shall be payable on demand.
Section 4.06. Maximum Interest Rate. 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
12.01 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 IV, 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 V
DISBURSEMENT AND PAYMENT
Section 5.01. 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 5.04 or
5.05, the Committed Notes or portions thereof as to which a
Conversion/Continuance Request has been made pursuant to Section 4.04 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 5.02. Method of Payment . All payments of principal and
interest on Money Market Loans and under Money Market Notes shall be made
without set-off or counterclaim (i) to each of the Banks entitled thereto, for
its account, or (ii) if an Event of Default has occurred and is continuing, to
the Agent for the account of the Banks entitled thereto, in each case, in lawful
money of the United States and in immediately available funds at the office of
such Bank specified in the relevant Money Market Confirmation provided, that the
Company shall give the Agent notice, confirmed by the relevant Bank, of all
payments or prepayments of principal upon any Money Market Loans made directly
to any Bank on the same business day on which such payments are made.
(b) All other payments by the Company hereunder and under the Committed
Notes or in connection with Letters of Credit 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 5.03. Compensation for Losses . Compensation. In the
event that (i) the Company makes a prepayment under Section 2.10 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 4.04 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) Eurodollar Loans or Money Market
Loans bearing interest on the basis of a similar variable interbank rate or
portions thereof are converted into ABR Loans pursuant to Section 5.05 on a day
other than the last day of the Interest Period for the Eurodollar Loans so
converted, or (v) the Eurodollar Loans or Money Market Loans bearing interest on
the basis of a similar variable interbank rate shall be declared to be due and
payable prior to the scheduled maturity thereof pursuant to Section 9.01, 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 Money Market Loans, as the case may be, 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 5.03. When requesting payment pursuant to
this Section 5.03, 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 12.08(e), each Participant shall be
deemed a "Bank" for the purposes of this Section 5.03.
Section 5.04. Withholding, Reserves and Additional Costs.
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 Sec
tion 5.04(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 withhol
dings) 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 of the amendment and
restatement 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 of the amendment and restatement hereof but not effective
until after the date of the amendment and restatement 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 addi
tional 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 5.04, 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 5.04. When requesting payment pursuant to
this Section 5.04, 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 5.04 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 practical, to all the affected Bank's assets,
commitments, activities and 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 12.08(e), each Participant shall be
deemed a "Bank" for the purposes of this Section 5.04.
Section 5.05. 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 automati
cally 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 Committed Loan Request or Conversion/Continuance 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.
Section 5.06. Additional Costs in Respect of Letters of Credit .
Except in the case of increased cost attributable to the imposition of taxes as
to which the Company's liability is governed by Section 5.04(a), if as a result
of any change after the date of the amendment and restatement hereof in
applicable law or regulation or in the interpretation thereof by any
Governmental Authority there shall be imposed, modified or deemed applicable any
reserve, special deposit, capital adequacy requirement or other requirements
against or with respect to or measured by reference to Letters of Credit issued
or to be issued by the Issuing Bank hereunder and the result shall be to
increase the cost to the Issuing Bank of issuing or maintaining any Letter of
Credit hereunder, or reduce any amount receivable by the Issuing Bank hereunder
in respect of any Letter of Credit (which increase in cost, or reduction in
amount receivable, shall be the result of the Issuing Bank's reasonable
allocation of the aggregate of such increases or reductions resulting from such
event), the Company shall, upon demand by the Issuing Bank, pay to the Issuing
Bank within 10 days of such written demand such additional amounts as the
Issuing Bank from time to time specifies as necessary to compensate the Issuing
Bank for such increased costs or reductions in amounts receivable.
(b) Certificate, Etc. The Issuing 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 5.06. When requesting payment
pursuant to this Section 5.06, the Issuing Bank shall provide to the Company,
with a copy to the Agent, a certificate, signed by an officer of the Issuing
Bank, setting forth the amount required to be paid by the Company to the Issuing
Bank and the computations made by the issuing Bank to determine such amount.
Determinations and allocations by the Issuing Bank for purposes of this Section
5.06 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 practical, to all
the Issuing Bank's assets, commitments, activities and other relevant aspects of
the Issuing 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 the Issuing Bank. Notwithstanding anything to the
contrary contained herein, the Company shall not be required to make any payment
to the Issuing Bank pursuant to this Section 5.06 with respect to costs,
reductions or other amounts relating to any time which is greater than 30 days
prior to the Issuing Bank's request therefor.
Section 5.07. Commercial Practices in Respect of Letters of Credit .
Without affecting any rights the Banks may have under applicable law (including
under the UCP), the Company agrees that none of the Banks, the Issuing Bank or
the Agent nor any of their respective officers or directors shall be liable or
responsible for, and the obligations of the Company to the Banks, the Issuing
Bank, and the Agent hereunder shall not in any manner be affected by: (i) the
use that may be made of any Letter of Credit or the proceeds thereof by the
beneficiary thereof or any other Person; (ii) the validity, sufficiency or
genuineness of documents other than the Issuing Bank Letters of Credit, or of
any endorsement(s) thereon, even if such documents should, in fact, prove to be
in any or all respects invalid, insufficient, fraudulent or forged; or (iii) any
other circumstances whatsoever in making or failing to make payment under any
Letter of Credit; provided that the foregoing shall not operate to bar a claim
against a Bank or the Issuing Bank to the extent, but only to the extent, of any
direct, as opposed to consequential, damages suffered by the Company that are
caused by such Bank's or Issuing Bank's willful misconduct or gross negligence
in determining whether documents presented under any Letter of Credit complied
with the terms of such Letter of Credit or such Bank's or Issuing Bank's failure
to pay under such Letter of Credit after the presentation to it of documents
strictly complying with the terms and conditions of such Letter of Credit. In
furtherance and not in limitation of the foregoing, any Bank or the Issuing Bank
may accept documents that appear on their face to be in order without
responsibility for further investigation.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.01. 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 6.01(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, regulation, 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, 1997, 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) The unaudited consolidated balance sheets of the Company and its
Subsidiaries as of March 31, 1998, and June 30, 1998, together with unaudited
and consolidated statements of income for the three month and six month periods
then ended and the unaudited statements of cash flows for the three months and
six months, respectively, then ended, 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, subject to the omission or curtailment
of footnotes. As of the date hereof, there are no material liabilities, direct
or indirect, fixed or contingent, of the Company and any of its Subsidiaries as
of the dates of such balance sheets which are not reflected therein or in the
notes thereto.
(iii) There has been no Material Adverse Change.
(iv) Since December 31, 1997, there has not occurred any fact, event or
condition which could have a Material Adverse Effect.
(i) Taxes. The Company and each of its Subsidiaries 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 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, 1997, referred to in Section 6.01(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 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, or liability under, 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.
(u) Year 2000. The Company and its Subsidiaries have reviewed the
effect of the Year 2000 Issue on the computer software, hardware and firmware
systems and equipment containing embedded microchips used by the Company and its
Subsidiaries in the conduct of their businesses. The Company and its
Subsidiaries are undertaking reasonable efforts to assess the efforts of its
investment banks, commercial banks, primary lessees and major vendors to deal
with the Year 2000 Issue. The costs to the Company and its Subsidiaries of any
reprogramming required as a result of the Year 2000 Issue to permit the proper
functioning of the systems and equipment of the Company and its Subsidiaries and
the proper processing of data and the testing of such reprogramming are not
reasonably expected to result in an Event of Default or to have a Material
Adverse Effect on the business, properties, condition (financial or otherwise)
or operations of the Company and its Subsidiaries, taken as a whole. The term
"Year 2000 Issue" means the failure of computer software, hardware and firmware
systems and equipment containing embedded computer chips to properly receive,
transmit, process, manipulate, store, retrieve, retransmit or in any other way
utilize data and information due to the occurrence of the year 2000 or the
inclusion of dates on or after January 1, 2000.
ARTICLE VII
CONDITIONS OF LENDING
Section 7.01. Conditions to the Availability of the Commitment. The
obligations of each Bank and the Issuing Bank hereunder are subject to, and the
Banks' Commitment shall not become available from the date of the Amendment and
Restatement hereof 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 Amended and
Restated 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 Committed
Notes in the principal amounts equal to each such Bank's Commitment, and Money
Market Notes in the principal amounts equal to the Total Commitment, each 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 6.01(b) with respect to the States
of Maryland[,] California and [other states, to be determined upon consultation
with the Company and counsel].
(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 of the amendment and restatement hereof, of
Latham & Watkins, special counsel for the Company, in substantially the form of
Exhibit H, and of Ballard, Spahr, Andrews & Ingersoll, special Maryland counsel
for the Company, in substantially the form of Exhibit I.
(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 of the amendment and restatement
hereof, pursuant to the Fee Letter.
(i) Certain Fees and Expenses. The Agent shall have received (i)
those certain fees that are payable as described in Section 2.09 hereof and (ii)
those fees and expenses of counsel to the Agent and the Lead Arranger, as
described in Section 12.03 hereof, that have been incurred up to the date of
amendment and restatement hereof and of which the Agent has given the Company
notice.
Section 7.02. Conditions to All Loans. The obligations (i) of each
Bank in connection with each Loan (including the Initial Loan) and (ii) of the
Issuing Bank in connection with each Letter of Credit are subject to the
conditions precedent that, on the date of each such Loan and issuance of each
Letter of Credit and after giving effect thereto, each of the following
conditions precedent shall have been satisfied or waived in writing by each Bank
(upon such satisfaction or written waiver each Bank will give a written
confirmation of the same to the Company on request):
(a) Requests. (1) For each Committed Loan, the Agent shall have received
a Committed Loan Request in substantially the form of Exhibit B. (2) For each
Money Market Borrowing, the Agent shall have received a Money Market Notice in
substantially the form of Exhibit C and the Company shall have acknowledged a
Money Market Confirmation in substantially the form of Exhibit D. (3) For each
Letter of Credit, the Agent and Issuing Bank shall have received a Letter of
Credit Notice in substantially the form of Exhibit E.
(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 VI (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 or Letter of Credit, and the Agent shall have received from the Company a
certificate to that effect signed by an authorized officer of the Company.
(d) Fee. For each Letter of Credit, the Issuing Bank shall have received
the Fronting Fee.
ARTICLE VIII
COVENANTS
Section 8.01. 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 6.01(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,
1997 financial statements and reports of the Company referenced in
Section 6.01(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 8.01(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 8.02(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 Claims 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 com
munication 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.
(l) Year 2000 Covenant. The Company shall take, and shall cause each
of its Subsidiaries to take, all necessary action to complete in all material
respects by September 30, 1999, the reprogramming of computer software, hardware
and firmware systems and equipment containing embedded microchips owned or
operated by or for the Company and its Subsidiaries required as a result of the
Year 2000 Issue to permit the proper functioning of such computer systems and
other equipment and the testing of such systems and equipment, as so
reprogrammed, other than action for which the failure to complete would not have
a Material Adverse Effect on the business, properties, condition (financial or
otherwise) or operations of the Company and its Subsidiaries, taken as a whole.
At the request of the Agent, the Company shall provide, and shall cause each of
its Subsidiaries to provide, to the Agent reasonable assurance of compliance
with the preceding sentence.
Section 8.02. 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 8.02(b)(ii), does
not exceed 30% 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 30% of Consolidated Total Assets.
(b) Subsidiary Indebtedness. Permit any Subsidiary to create, incur,
assume or suffer to exist any Indebtedness, except (i) Indebtedness to the
Company or any other Subsidiary, or (ii) Indebtedness which, together with
outstanding Indebtedness of the Company permitted under Section 8.02(a) and all
outstanding Indebtedness of other Subsidiaries, does not exceed 30% 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 8.02(a) or
Section 8.02(b); provided, however, that the aggregate value of property subject
to Liens granted pursuant to clause (ii) (exclusive of Liens to secure
Indebtedness pursuant to Section 8.02(b)(i)) shall not exceed 30% 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 8.01(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 not 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 ICBA Bank Analysis 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 8.02(d) or with the dissolution of any
Subsidiary or (y) a sale in accordance with Section 8.02(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.
Section 8.03. 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 $300,000,000.
(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 Funds from 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 IX
EVENTS OF DEFAULT
Section 9.01. 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 Committed Note, Money Market Note or Reimbursement Obligation with
respect to any Letter of Credit 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 8.01(g) or in Section
8.03; 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 and of the Issuing Bank to
issue any further Letters of Credit 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 9.01(g) or (h), the Notes shall become immediately due and payable and
the obligation of the Banks to make any further Loans and of the Issuing Bank to
issue any further Letters of Credit 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 X
THE AGENT AND THE BANKS
Section 10.01. The Agency and Co-Agency. 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 10.02. 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 10.03. 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.
In the case of any payment allocable to more than one party hereto that are made
with respect to obligations pursuant to this Agreement or any Note incurred
prior to the date of the amendment and restatement hereof, such payments shall
be apportioned, as applicable and to the extent that such payment is
attributable to the period prior to the date of the amendment and restatement
hereof, according to each such party's Commitment or other rights hereunder as
they existed prior to such date.
Section 10.04. 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 10.05. 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 10.06. 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 10.07. 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 10.08. 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 X 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 XI
CONSENT TO JURISDICTION; JUDGMENT CURRENCY
Section 11.01. 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 CT Corporation
System, Inc., with offices on the date hereof at 1633 Broadway, New York, New
York 10019, 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 inconven
ient 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 XII
MISCELLANEOUS
Section 12.01. 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 12.02. Set-off. Each Bank and the Issuing 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 12.03. Expenses. The Company agrees to pay (i) all reasonable
out-of-pocket fees and expenses of the Agent and the Lead Arranger (including
the reasonable out-of-pocket fees and expenses of Sullivan & Cromwell, as
counsel to the Agent and the Lead Arranger) in connection with the preparation
and negotiation of this Agreement and the other Credit Documents, any
amendments, supplements or modifications hereto or thereto, in each case whether
or not the transactions contemplated hereby or thereby are consummated and in
connection with the consummation of the transactions contemplated hereby or
thereby (ii) all reasonable out-of-pocket fees and expenses incurred by the
Agent, the Issuing Bank and any Bank, including reasonable out-of pocket 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 fees and
expenses of the Agent and the Lead Arranger, including reasonable out-of-pocket
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 12.04. 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 or the Issuing Bank are affected thereby, by the Agent or
the Issuing Bank, respectively); 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 4.05) or any fees hereunder, (iii) except as otherwise provided in
Section 12.12, 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 12.12, 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 V or of this Section 12.04.
Section 12.05. Cumulative Rights and No Waiver . Each and every
right granted to the Agent, the Issuing Bank 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, the Issuing Bank 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, the Issuing Bank
or any Bank of any right preclude any other or future exercise thereof or the
exercise of any other right.
Section 12.06. 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 Sections 2.02 or 2.06 will not be
effective until received by the Agent.
A communication, demand or notice given pursuant to this Section 12.06
shall be addressed:
If to the Company, at
MacArthur Court
9th Floor
Newport Beach, California 92660
Telecopy: (714) 221-0607
Attention: Treasurer
with copies to:
Latham & Watkins
633 West Fifth Street
Suite 4000
Los Angeles, California 90071
Telecopy: (213) 891-8763
Attention: Glen B. Collyer
If to the Agent or the Issuing Bank, at its address as indicated on
the signature pages hereof, with a copy to:
Sullivan & Cromwell
1888 Century Park East
21st Floor
Los Angeles, California 90067-1725
Telecopy: (310) 712-8800
Attention: Alison S. 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 12.07. 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 12.08. Assignments and Participations. This Agreement
shall be binding upon and inure to the benefit of the Company, the Issuing Bank
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 12.04 without the consent of the Participant. Subject to
Section 12.08(e), the Company agrees that each Participant shall be entitled to
the benefits of Sections 5.03, 5.04 and 12.04 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 5.03 or 5.04 than
such Bank would have been entitled to receive with respect to the rights trans
ferred, unless such transfer is made with the Company's prior written consent or
by reason of the provisions of Section 5.04 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 5.03, Section 5.04 or Section 12.04 than such Bank would
have been entitled to receive if it had not granted a participation to such
Participant.
Section 12.09. WAIVER OF JURY TRIAL . THE COMPANY, THE AGENT, THE
ISSUING BANK 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 12.10. 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,
affiliates, legal counsel, accountants, or designated agents), or where required
by law.
Section 12.11. Indemnity. The Company agrees to indemnify the Agent,
the Issuing Bank 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 consum
mation 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 12.11 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 12.11 shall be payable in immediately available funds
upon written demand therefor.
Section 12.12. Extension of Termination Dates; Removal of Banks;
Substitutions of Banks . 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 in substantially the form of Exhibit J,
addressed to each such Bank and the Agent. Not later than 30 days after receipt
of the request to extend the Termination Dates, each such Bank electing (in its
sole discretion) so to extend its scheduled Termination Date shall execute and
deliver 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 October 1 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 12.13. 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 12.14. 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: /S/ Devasis Ghose
Name: Devasis Ghose
Title: Senior Vice President
THE BANK OF NEW YORK,
as Agent for the Banks
By: /s/ Rebecca K. Levine
Name: Rebecca K. Levine
Title: Vice President
Address for Notices:
One Wall Street
18th Floor
New York, NY 10286
Attn: Kalyani Bose
Fax: (212) 635-6365
With a copy to:
The Bank of New York
10990 Wilshire Boulevard
Suite 1125
Los Angeles, CA 90024
Attn: Lisa Y. Brown, VP
Fax: (310) 996-8667
<PAGE>
Commitment: $35,625,000 THE BANK OF NEW YORK
as the Issuing Bank and
as a Bank
By: /s/ Rebecca K. Levine
Name: Rebecca K. Levine
Title: Vice President
Address for Notices:
One Wall Street
18th Floor
New York, NY 10286
Attn: Kalyani Bose
Fax: (212) 635-6365
With a copy to:
The Bank of New York
10990 Wilshire Boulevard
Suite 1125
Los Angeles, CA 90024
Attn: Lisa Y. Brown, VP
Fax: (310) 996-8667
Eurodollar Lending Office:
One Wall Street
18th Floor
New York, NY 10286
Attn: Kalyani Bose
Fax: (212) 635-6365
<PAGE>
Commitment: $11,250,000 THE SUMITOMO BANK, LIMITED
as a Bank
By: /s/ Goro Hirai
Name: Goro Hirai
Title: Joint General Manager
Address for Notices:
777 South Figueroa Street, Suite 2600
Los Angeles, CA 90017
Attn: Peter Byun/Gail Motonaga
Fax: (213) 623-6832
With a copy to:
Attn:
Fax:
Eurodollar Lending Office:
777 South Figueroa Street, Suite 2600
Los Angeles, CA 90017
Attn: Miriam Delgado
Fax: (213) 623-6832
<PAGE>
Commitment: $11,250,000 BANK OF MONTREAL
as a Bank
By: /s/ Kanu Modo
Name: Kanu Modo
Title: Director
Address for Notices:
Attn:
Fax:
With a copy to:
Attn:
Fax:
Eurodollar Lending Office:
Attn:
Fax:
<PAGE>
Commitment: $15,000,000 KBC BANK, N.V.
as a Bank
By: /s/ Robert Snauffer
Name: Robert Snauffer
Title: First Vice President
By: /s/ Michael V. Curran
Name: Michael V. Curran
Title: Vice President
Address for Notices:
125 West 55th Street
New York, NY 10019
Attn:
Fax:
With a copy to:
Attn:
Fax:
Eurodollar Lending Office:
KBC Bank N.V. - Grand Cayman Branch
125 West 55th Street
New York, NY 10019
Attn: Linda Resuma
Fax: (212) 958-5580
<PAGE>
Commitment: $18,750,000 WELLS FARGO BANK
as a Bank
By: /s/ Charles C. Warner
Name: Charles C. Warner
Title: Vice President
Address for Notices:
201 Third Street, 8th Floor
San Francisco, CA 94103
Attn: Loan Accounting/Syndications
Fax: (415) 975-6770
With a copy to:
333 South Grand Avenue, 3rd Floor
Los Angeles, CA 90071
Attn: Charles C. Warner
Fax: (213) 687-3501
Eurodollar Lending Office:
201 Third Street, 8th Floor
San Francisco, CA 94103
Attn: Loan Accounting/Syndications
Fax: (415) 975-6770
<PAGE>
Commitment: $11,250,000 BANK OF HAWAII
as a Bank
By: /s/ David L. Ward
Name: David L. Ward
Title: Officer
Address for Notices:
Mailing P.O. Box 2715
Honolulu, HI 96803-2715
Delivery 949 Kamokila Blvd
2nd Floor, West Wing
Kapolei, HI 96707
Attn: Donna Arakawa
Fax: (808) 693-1672
With a copy to:
Attn:
Fax:
Eurodollar Lending Office:
Same as above
Attn: Donna Arakawa
Fax: (808) 693-1672
<PAGE>
Commitment: $31,875,000 NATIONSBANK, N.A. (formerly known as
NATIONSBANK OF TEXAS)
as a Bank
By: /s/ F. Scott Singhoff
Name: F. Scott Singhoff
Title:Senior Vice President
Address for Notices:
NationsBank, N.A.
101 N. Tryon St.
15th Floor
Charlotte, N.C. 28255
Attn: Mathew Menz
Fax: 704/386-8694
With a copy to:
NationsBank, N.A.
700 Louisiana Street
8th Floor
Houston, Texas 77002
Attn: F. Scott Singhoff
Fax: 713/247-6719
Eurodollar Lending Office:
NationsBank, N.A.
101 N. Tryon St.
15th Floor
Charlotte, N.C. 28255
Attn: Mathew Menz
Fax: 704/386-8694
<PAGE>
EXHIBIT A
FORM OF CONVERSION/CONTINUANCE REQUEST
[Dated as provided
in Section 4.04]
The Bank of New York
c/o The Bank of New York Representative Office
10990 Wilshire Boulevard, Suite 1700
Los Angeles, California 90024
Attn: ____________________
Health Care Property Investors, Inc. (the "Company") hereby gives
notice of its intention to [convert/continue] [$___________] [the entire
outstanding amount] of its [ABR Loans] [Eurodollar Loans] with an Interest
Period of ____ days and ending on __________, ____] [to/as] [ABR Loans]
[Eurodollar Loans], pursuant to the Amended and Restated Revolving Credit
Agreement, dated as of October 22, 1997, and as amended and restated as of
September __, 1998, among the Company, the Banks, The Bank of New York, as Agent
and NationsBank of Texas, N.A., as Co-Agent(as amended, supplemented or
otherwise modified from time to time, the "Agreement"), such
[conversion/continuance] to be effective as of ___________, ____. [The Interest
Period for the Eurodollar Loans shall be _____ days.]
Unless otherwise defined herein, capitalized terms used herein shall
have the respective meanings specified in the Agreement.
HEALTH CARE PROPERTY
INVESTORS, INC.
By:_______________________
Name:
Title:
<PAGE>
EXHIBIT B
FORM OF COMMITTED LOAN REQUEST
[Dated as provided
in Section 2.02]
The Bank of New York
c/o Bank of New York Representative Office
10990 Wilshire Boulevard, Suite 1700
Los Angeles, California 90024
Attn: ____________________
Health Care Property Investors, Inc. (the "Company") hereby gives
notice of its intention to borrow $____________ of Loans on _________, ____
pursuant to the Amended and Restated Revolving Credit Agreement, dated as of
October 22, 1997, and as amended and restated as of September __, 1998, among
the Company, the Banks, The Bank of New York, as Agent and NationsBank of Texas,
N.A., as Co-Agent (as amended, supplemented or otherwise modified from time to
time, the "Agreement").
The Company hereby confirms that the amounts of Loans and Money Market
Loans outstanding on the date hereof is as follows:
Total Commitment $__________
Outstanding Committed Loans $__________
Outstanding Money Market Loans $__________
Availability $__________
The Company also hereby confirms that each of the representations and
warranties (other than the representations and warranties that speak as of a
specific date) contained in Article VI of the Agreement is true and correct on
the date hereof and, after giving effect to this borrowing, will be true and
correct on the proposed borrowing date as though such representation or warranty
had originally been made on such dates. No Default or Event of Default has
occurred and is continuing, nor will any such event occur as a result of this
borrowing.
Unless otherwise defined herein, capitalized terms used herein shall
have the respective meanings specified in the Agreement.
HEALTH CARE PROPERTY
INVESTORS, INC.
By:
Name: Devasis Ghose
Title:Senior Vice President
<PAGE>
EXHIBIT C
FORM OF MONEY MARKET NOTICE
[Dated as provided
in Section 2.06(a)]
The Bank of New York, as Agent
c/o Bank of New York Representative Office
10990 Wilshire Boulevard, Suite 1700
Los Angeles, California 90024
Attn: ____________________
Pursuant to the Amended and Restated Revolving Credit Agreement, dated
as of October 22, 1997, and as amended and restated as of September __, 1998,
among Health Care Property Investors, Inc. (the "Company"), the banks named
therein, The Bank of New York, as Agent, and NationsBank of Texas, N.A., as Co-
Agent (as amended, supplemented or otherwise modified from time to time, the
"Agreement"), the Company and the banks named below hereby give notice of their
agreement to complete a Money Market Borrowing consisting of the Money Market
Loans described below.
Money Market Funding Date:
[Duplicate for each Money Market Loan:]
Bank:
Principal Amount:
Maturity:
Aggregate Principal Amount:
The Company also hereby confirms, for the benefit of the Agent and the
Bank making such Money Market Loan, if such bank so requires, that each of the
representations and warranties (other than the representations and warranties
that speak as of a specific date) contained in Article VI of the Agreement is
true and correct on the date hereof and, after giving effect to this borrowing,
will be true and correct on the proposed borrowing date as though such
representation or warranty had originally been made on such dates. No Default
or Event of Default has occurred and is continuing, nor will any such event
occur as a result of this borrowing.
Unless otherwise defined herein, capitalized terms used herein shall
have the respective meanings specified in the Agreement.
HEALTH CARE PROPERTY INVESTORS,INC.
By:
Name:
Title:
<PAGE>
Exhibit D
Form of Money Market Confirmation
[Date]
Health Care Property Investors, Inc.
10990 Wilshire Boulevard
Suite 1200
Los Angeles, California 90024
Attention:____________
Ladies and Gentlemen:
This instrument constitutes a Money Market Confirmation under, and as
defined by, the Amended and Restated Revolving Credit Agreement, dated as of
October 22, 1997 and as amended and restated as of September __, 1998 (as
amended, modified or supplemented, the "Credit Agreement"), among Health Care
Property Investors, Inc. (the "Company"), The Bank of New York, in its
individual corporate capacity and as Agent, and certain financial institutions
referred to therein. Terms not otherwise expressly set forth herein shall have
the meanings set forth in the Credit Agreement.
The undersigned Bank hereby confirms to the Company that the Bank has
agreed to make, and the Company has agreed to accept, [a] Money Market Loan[s]
as follows:
.
[Money Market Loan no. ___*]
(a) Principal Amount:
(b) Funding Date:
(c) Loan Period (not to exceed 270 days):
(d) Interest Rate:
By acknowledgement of this Confirmation and acceptance of funds
pursuant to the Money Market Loan, the Company confirms that [(i) each of the
representations and warranties (other than the representations and warranties
that speak as of a specific date) contained in Article VI of the Agreement is
true and correct on the date hereof and, after giving effect to this borrowing,
will be true and correct on the proposed borrowing date as though such
representation or warranty had originally been made on such dates and (ii)] no
Default or Event of Default has occurred and is continuing, nor will any such
event occur as a result of this borrowing.
[NAME OF BANK]
By: __________________________
Name:
Title:
Acknowledged and accepted:
HEALTH CARE PROPERTY INVESTORS, INC.
By: __________________________
Name:
Title:
<PAGE>
EXHIBIT E
FORM OF NOTICE OF REQUEST FOR SYNDICATED LETTER OF CREDIT
[Dated as provided
in Section 3.01]
The Bank of New York, as Agent
10990 Wilshire Boulevard
Suite 1700
Los Angeles, California 90024
Attn: _____________
Dear Sirs:
Reference is hereby made to the Amended and Restated Revolving Credit
Agreement, dated as of October 22, 1998, and amended and restated as of
September __, 1998, among Health Care Property Investors, Inc. (the "Company"),
the Banks, the Agent and the Issuing Bank (as amended, supplemented or otherwise
modified from time to time, the "Agreement"). Capitalized terms used herein and
not otherwise defined shall have the respective meanings ascribed to such terms
in the Agreement.
Pursuant to Section 3.01(c) of the Agreement, the Company hereby gives
notice of a proposed issuance of a Letter of Credit and in that connection sets
forth below the terms on which such Syndicated Letter of Credit is requested to
be issued:
(A) Requested Date of Issuance _______________
(B) Requested Expiration Date _______________
(C) Requested Stated Amount _______________
Attached is a proposed form of such Letter of Credit, accompanied by a
completed form of application for issuance of a letter of credit, using your
current standard form, and a description of the nature of the transactions
proposed to be supported by the requested Letter of Credit.
The Company hereby confirms that each of the representations and
warranties of the Company, other than those that speak as of a specified date,
set forth in Article VI of the Agreement is true and correct in all material
respects on the date hereof and, after giving effect to this borrowing, will be
true and correct in all material respects on the proposed borrowing date as
though such representation or warranty had originally been made on such dates.
The Company has complied and is now in compliance with all the terms, covenants
and conditions of the Agreement which are binding on it and, after giving effect
to this borrowing, will be in such compliance. No Default or Event of Default
has occurred and is continuing, nor will any such event occur as a result of
this borrowing.
HEALTH CARE PROPERTY
INVESTORS, INC.
By:______________________
Name:
Title:
<PAGE>
EXHIBIT F
FORM OF COMMITTED NOTE
$__________ ___________, 1998
HEALTH CARE PROPERTY INVESTORS, INC., a Maryland corporation (the
"Company"), for value received, hereby promises to pay on the Termination Date
to the order of (the "Bank"), at the office of The Bank of
New York, as Agent, at One Wall Street, 22nd Floor, New York, New York 10286, in
lawful money of the United States, the principal sum of $__________, or if less,
the aggregate unpaid principal amount of all Committed Loans made by the Bank to
the Company pursuant to the Agreement (hereinafter defined), without relief from
valuation and appraisement laws.
This Note shall bear interest, and such interest shall be payable, as
set forth in the Agreement for ABR Loans and Eurodollar Loans. Upon the
occurrence and during the continuation of an Event of Default, this Note shall
bear interest at the default rate pursuant to Section 4.05 of the Agreement.
Except as otherwise provided in the Agreement, with respect to
Eurodollar Loans, if interest or principal on the Loan evidenced by this Note
becomes due and payable on a day which is not a Business Day, the maturity
thereof shall be extended to the next succeeding Business Day, and interest
shall be payable thereon at the rate herein specified during such extension.
This Note is one of the Committed Notes referred to in the Amended and
Restated $135,000,000 Revolving Credit Agreement, dated as of October 22, 1997
and as amended and restated as of September 30, 1998 (as amended, supplemented
or otherwise modified from time to time, the "Agreement"), among the Company,
the Banks, The Bank of New York, as Agent, and NationsBank of Texas, N.A. as Co-
Agent, and is subject to prepayment in whole or in part and its maturity is
subject to acceleration upon the terms provided in the Agreement. Unless
otherwise defined herein, capitalized terms used herein shall have the
respective meanings specified in the Agreement.
The Bank is hereby authorized to record on the schedule annexed
hereto, and any continuation sheets which the Bank may attach hereto, (i) the
date and amount of each Committed Loan made by the Bank, (ii) the character
thereof as an ABR Loan, a Eurodollar Loan or a combination thereof, (iii) the
interest rate (without regard to the Applicable Margin and Interest Period (if
any) applicable to each Eurodollar Loan), and (iv) the date and amount of each
conversion of, and each payment or prepayment of principal of, any such
Committed Loan. No failure to record or any error in so recording shall affect
the obligation of the Company to repay the Committed Loans, together with
interest thereon, as provided in the Agreement, and the outstanding principal
balance of the Committed Loans made by the Lender as set forth in such schedule
shall be presumed correct absent manifest error.
This Note shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York.
All Committed Loans made by the Bank to the Company pursuant to the
Agreement and all payments of principal hereof and interest thereon may be
indicated by the Bank upon the grid attached hereto which is a part of this
Note. Such notations shall be presumptive as to the aggregate unpaid principal
amount of and interest on all Loans made by the Bank pursuant to the Agreement.
HEALTH CARE PROPERTY
INVESTORS, INC.
By:_______________________
Name:
Title:
<PAGE>
Loan and Payments of Principal and Interest
<TABLE>
<CAPTION>
Interest Interest Name of
Method Period (if Amount of Unpaid Amount of Person
Amount (ABR or (Eurodollar Principal Principal Interest Making
Date of Loan Eurodollar Loan) Paid Balance Paid Notation
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT G
FORM OF MONEY MARKET NOTE
$____________ ___________, 1998
HEALTH CARE PROPERTY INVESTORS, INC., a Maryland corporation (the
"Company"), for value received, hereby promises to pay on the Termination Date
to the order of
(the "Bank"), at the office of the Bank, located at
____________________________________, in lawful money of the United States, the
principal sum of $135,000,000, or if less, the aggregate unpaid principal amount
of all Money Market Loans made by the Bank to the Company pursuant to the
Agreement (hereinafter defined), without relief from valuation and appraisement
laws.
This Note shall bear interest, and such interest shall be payable, as
set forth in the Money Market Confirmations given by the Bank to the Company
pursuant to the Agreement. Upon the occurrence and during the continuation of
an Event of Default, this Note shall bear interest at the default rate pursuant
to Section 4.05 of the Agreement.
Except as otherwise provided in the Agreement, if interest or
principal on the Loan evidenced by this Note becomes due and payable on a day
which is not a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day, and interest shall be payable thereon at the rate
herein specified during such extension.
This Note is one of the Money Market Notes referred to in the Amended
and Restated $135,000,000 Revolving Credit Agreement, dated as of October 22,
1997, and as amended and restated as of September 30, 1998 (as amended,
supplemented or otherwise modified from time to time, the "Agreement"), among
the Company, the Banks, The Bank of New York, as Agent, and NationsBank of
Texas, N.A., as Co-Agent, and is subject to prepayment in whole or in part and
its maturity is subject to acceleration upon the terms provided in the
Agreement. Unless otherwise defined herein, capitalized terms used herein shall
have the respective meanings specified in the Agreement.
The Bank is hereby authorized to record on the schedule annexed
hereto, and any continuation sheets which the Bank may attach hereto, (i) the
date and amount of each Money Market Loan made by the Bank, (ii) loan period of
such Money Market Loan, (iii) the characterization of the Money Market Loan,
including any election to compute amounts payable on such Money Market Loan by
reference to amounts payable on an ABR Loan or a Eurodollar Loan under the
Agreement, (iv) the interest rate (without regard to the Applicable Margin and
Interest Period (if any) applicable to any Money Market Loan), and (v) the date
and amount of each payment or prepayment of principal of and (to the extent
permitted pursuant to applicable Money Market Confirmations) each conversion of,
any such Money Market Loan. No failure to record or any error in so recording
shall affect the obligation of the Company to repay the Money Market Loans,
together with interest thereon, as provided in the Agreement, and the
outstanding principal balance of the Money Market Loans made by the Lender as
set forth in such schedule shall be presumed correct absent manifest error.
This Note shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York.
All Money Market Loans made by the Bank to the Company pursuant to the
Agreement and all payments of principal hereof and interest thereon may be
indicated by the Bank upon the grid attached hereto which is a part of this
Note. Such notations shall be presumptive as to the aggregate unpaid principal
amount of and interest on all Money Market Loans made by the Bank pursuant to
the Agreement.
HEALTH CARE PROPERTY
INVESTORS, INC.
By:_______________________
Name:
Title:
<PAGE>
Loan and Payments of Principal and Interest
<TABLE>
<CAPTION>
Name of
Amount of Unpaid Amount of Person
Loan Amount Interest Interest Interest Principal Principal Interest Making
Date Period of Loan Method Rate Period Paid Balance Paid Notation
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT H
Form of Opinion of Latham & Watkins LLP
EXHIBIT I
Form of Opinion of Ballard, Spahr, Andrews & Ingersoll
<PAGE>
EXHIBIT J
Form of Extension Letter
__________, ____
The Bank of New York, as Agent
c/o Bank of New York Representative Office
10990 Wilshire Boulevard, Suite 1700
Los Angeles, California 90024
[Names and addresses of other Banks]
Reference is made to the Amended and Restated Revolving Credit
Agreement, dated as of October 22, 1997 and as amended and restated as of
September __, 1998 (as amended, supplemented or otherwise modified from time to
time, the "Agreement"), among Health Care Property Investors, Inc. (the
"Company"), the banks named therein, The Bank of New York, as Agent, and
NationsBank of Texas, N.A. as Co-Agent. Terms herein not otherwise defined
shall have the meanings set forth in the Agreement.
Pursuant to Section 12.12 of the Agreement, the Company hereby
requests all the Banks then party to this Agreement to extend their scheduled
Termination Dates by one calendar year.
The Company confirms (i) that each of the representations and
warranties (other than the representations and warranties that speak as of a
specific date) contained in Article VI of the Agreement is true and correct on
the date hereof and, after giving effect to this extension, will be true and
correct on the date upon which the extension will be effective as though such
representation or warranty had originally been made on such dates and (ii) no
Default or Event of Default has occurred and is continuing, nor will any such
event occur as a result of this extension.
Very truly yours,
HEALTH CARE PROPERTY
INVESTORS, INC.
By:_______________________
Name:
Title:
_______________________________
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE FORM
10-Q FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1998 AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<CIK> 0000765880
<NAME> HEALTH CARE PROPERTY INVESTORS, INC.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> SEP-30-1998
<CASH> 83,027
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 1,133,913
<DEPRECIATION> 188,796
<TOTAL-ASSETS> 1,239,292
<CURRENT-LIABILITIES> 0
<BONDS> 585,930
0
187,847
<COMMON> 30,972
<OTHER-SE> 374,052
<TOTAL-LIABILITY-AND-EQUITY> 1,239,292
<SALES> 0
<TOTAL-REVENUES> 116,448
<CGS> 0
<TOTAL-COSTS> 26,859
<OTHER-EXPENSES> 9,503
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 26,727
<INCOME-PRETAX> 60,101
<INCOME-TAX> 0
<INCOME-CONTINUING> 60,101
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 60,101
<EPS-PRIMARY> 1.82
<EPS-DILUTED> 1.81
</TABLE>
