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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 26, 1996
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Healthcare Realty Trust Incorporated
(Exact Name of Registrant as Specified in Its Charter)
Maryland 1-11852 62-1507028
(State or Other (Commission File (I.R.S. Employer
Jurisdiction of Number) Identification
Incorporation) Number)
3310 West End Avenue
Fourth Floor
Nashville, Tennessee 37203
(Address of Principal Executive Offices) (Zip Code)
615-269-8175
(Registrant's Telephone Number, including Area Code)
Not Applicable
(Former Name)
<PAGE>
Item 5. Other Events.
On December 26, 1996, Healthcare Realty Trust Incorporated (the Company)
entered into a Modified and Restated Credit Agreement with NationsBank, N.A.,
AmSouth Bank of Alabama, First Tennessee Bank National Association and The
Sumitomo Bank, Limited (the Amended Credit Facility). The Amended Credit
Facility modified, restated and replaced that certain Credit Agreement dated as
of August 3, 1994, as amended June 1, 1995 and April 23, 1996, by and among the
Company and such lenders (the Prior Credit Facility). Among other modifications,
the credit available to the Company was increased to $100 million under the
Amended Credit Facility, compared to $75 million under the Prior Credit
Facility. The Senior Credit Facility matures in December 1999, subject to two,
one-year extensions exercisable by the Company upon the terms of the Senior
Credit Facility. The Company's obligations under the Senior Credit Facility are
guaranteed by each of the subsidiaries of the Company.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits
Exhibit Index
Exhibit Number Document
10.1 Modified and Restated Credit Agreement, dated as of
December 26, 1996, by and among Healthcare Realty
Trust Incorporated and NationsBank, N.A., as agent.
10.2 Form of Subsidiary Guarantee.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
HEALTHCARE REALTY TRUST INCORPORATED
By: /s/ ROGER O. WEST
Roger O. West
Executive Vice President and General Counsel
Date: February 3, 1997
EXHIBIT 10.1
MODIFIED AND RESTATED CREDIT AGREEMENT
THIS MODIFIED AND RESTATED CREDIT AGREEMENT (the Credit Agreement), dated
as of December 26, 1996, is by and among HEALTHCARE REALTY TRUST INCORPORATED,
the banks listed on the signature pages hereof, and NATIONSBANK, N.A., as agent
for such banks, and modifies, restates and replaces that certain Credit
Agreement dated as of August 3, 1994, as amended June 1, 1995 and April 23,
1996, by and among such parties.
The parties hereto agree as follows:
ARTICLE I
DEFINITION
SECTION 1.01 Definitions. The following terms, as used herein, have the
following meanings:
Acquisition means any purchase or acquisition (including any such
transaction effected by way of merger, amalgamation or consolidation) by the
Borrower or any of its Subsidiaries subsequent to the date hereof, of any
business or part of a business, in any form, including, the acquisition of
assets or stock of any other Person.
Adjusted Eurodollar Rate means, for any Interest Period, a per annum
interest rate equal to the per annum rate obtained by dividing (a) the rate of
interest determined by the Agent to be the average (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the per annum rate at which Dollar deposits are offered to the
Eurodollar Reference Bank in the interbank euroccurrency market at 11:00 A.M.
Charlotte, North Carolina time two (2) Eurodollar Business Days before the first
day of such Interest Period in an amount substantially equal to the Eurodollar
Loan of the Eurodollar Reference Bank to which such Interest Period is to apply
and for a period of time equal to such Interest Period by (b) a percentage equal
to 100% minus the Adjusted Eurodollar Rate Reserve Percentage for such Interest
Period.
Adjusted Eurodollar Rate Reserve Percentage means, for any Interest Period,
the percentage applicable two (2) Eurodollar Business Days before the first day
of such Interest Period under regulations issued from time to time by the Board
of Governors of the Federal Reserve System (or any successor or any other
applicable authority) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other marginal
reserve requirement) for a member bank of the Federal Reserve System in New York
City with respect to liabilities or assets consisting of or including Eurodollar
Liabilities (or with respect to any other category of liabilities which includes
deposits by reference to which the interest rate on Adjusted Eurodollar Rate
Advances is determined).
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Administrative Questionnaire means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Agent and submitted to
the Agent duly completed by such Bank.
Affiliate means, with respect to any designated Person, (a) any officers or
directors of such Person or (b) any other Person (other than a Subsidiary of
such designated Person) that has a relationship with the designated Person
whereby either of such Persons directly or indirectly controls or is controlled
by or is under common control with the other of such Persons. The term control
means the possession, directly or indirectly, of the power, whether or not
exercised to direct or cause the direction of the management or policies of any
Person, whether through ownership of voting securities, by contract or
otherwise.
Agent means NationsBank, in its capacity as agent for the Banks hereunder,
and its successors in such capacity.
Applicable Fee Percentage shall mean on any date, the applicable percentage
set forth below based upon the ratings applicable on such date to any Long-Term
Debt of the Borrower then outstanding:
<TABLE>
<CAPTION>
UNUSED FEE
PERCENTAGE
<S> <C>
Category 1
A or higher by S&P or 0.1875%
A2 or higher by Moody's
or A or higher by Duff & Phelps
Category 2
Lower than A and equal to 0.20%
or higher than BBB+ by S&P
or lower than A2 and equal to
or higher than Baa1 by Moody's
or lower than A and equal to or
higher than BBB+ by Duff & Phelps
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Category 3
Lower than BBB+ and equal to 0.20%
or higher than BBB by S&P or
lower than Baa1 and equal to
or higher than Baa2 by Moody's or
lower than BBB+ and equal to
or higher than BBB by Duff & Phelps
Category 4
Lower than BBB and equal to 0.225%
or higher than BBB- by S&P or
lower than Baa2 and equal to
or higher than Baa3 by Moody's or
lower than BBB and equal to
or higher than BBB- by Duff & Phelps
Category 5
Lower than BBB- by S&P or 0.25%
lower than Baa3 by Moody's or
lower than BBB- by Duff & Phelps
</TABLE>
For purposes of the foregoing, (a) if no rating for any Long-Term Debt of
the Borrower shall be available from Moody's, S&P or Duff & Phelps, such rating
agency shall be deemed to have established a rating for the Long-Term Debt of
the Borrower which is one rating grade higher than the subordinated debt rating
grade of the Borrower, (b) if no rating for any Long-Term Debt or subordinated
debt of the Borrower shall be available from Moody's, S&P or Duff & Phelps, the
Applicable Fee Percentage shall be as set forth in Category 5, (c) if the
ratings established or deemed to have been established by Moody's, S&P and Duff
& Phelps shall fall within different categories, the Applicable Fee Percentage
shall be based upon the superior (or numerically lowest) Category unless such
differential is more than one Category in which case the Applicable Fee
Percentage shall be based upon the inferior (or numerically highest) Category
and (d) if any rating established or deemed to have been established by Moody's,
S&P or Duff & Phelps shall be changed (other than as a result of a change in the
rating system of Moody's, S&P or Duff & Phelps), such change shall be effective
as of the date on which such change is first announced by the rating agency
making such change. Each such change shall apply to all Base Rate Loans and
Eurodollar Loans that are outstanding at any time during the period commencing
on the effective date of such change and ending on the date immediately
preceding the effective date of the next such change. If the rating system of
Moody's, S&P or Duff & Phelps shall change prior to the Maturity Date, the
Borrower and the Banks shall negotiate in good faith to amend the references to
specific ratings in this definition to reflect such changed rating system.
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Applicable Lending Office means, with respect to any Bank, (a) in the case
of its Base Rate Loans, its Domestic Lending Office and (b) in the case of its
Eurodollar Loans, its Eurodollar Lending Office.
Applicable Margin shall mean on any date, with respect to Base Rate Loans
and Eurodollar Loans made to the Borrower, the applicable spread set forth below
based upon the ratings applicable on such date to any Long-Term Debt of the
Borrower then outstanding:
<TABLE>
<CAPTION>
BASE RATE EURODOLLAR LOAN
SPREAD SPREAD
Category 1
<S> <C>
A or higher by S&P or 0.0% 0.75%
A2 or higher by Moody's
or A or higher
by Duff & Phelps
Category 2
Lower than A and equal to 0.0% 0.875%
or higher than BBB+ by
S&P or lower than A2 and equal to
or higher than Baa1 by Moody's or
lower than A and equal to
or higher than BBB+ by Duff & Phelps
Category 3
Lower than BBB+ and equal to 0.0% 1.00%
or higher than BBB by S&P or
lower than Baa1 and equal to
or higher than Baa2 by Moody's or
lower than BBB+ and equal to
or higher than BBB by Duff & Phelps
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Category 4
Lower than BBB and equal to 0.0% 1.125%
or higher than BBB- by S&P or
lower than Baa2 and equal to
or higher than Baa3 by Moody's or
lower than BBB and equal to
or higher than BBB- by Duff & Phelps
Category 5
Lower than BBB- by S&P or 0.0% 1.25%
lower than Baa3 by Moody's or
lower than BBB- by Duff & Phelps
</TABLE>
For purposes of the foregoing, (a) if no rating for any Long-Term Debt of
the Borrower shall be available from Moody's, S&P or Duff & Phelps, such rating
agency shall be deemed to have established a rating for the Long-Term Debt of
the Borrower which is one rating grade higher than the subordinated debt rating
grade of the Borrower, (b) if no rating for any Long-Term Debt or subordinated
debt of the Borrower shall be available from Moody's, S&P or Duff & Phelps, the
Applicable Margin applicable to any Base Rate Loan or Eurodollar Loan shall be
as set forth in Category 5, (c) if the ratings established or deemed to have
been established by Moody's, S&P and Duff & Phelps shall fall within different
categories, the Applicable Margin applicable to any Base Rate Loan or Eurodollar
Loan shall be based upon the superior (or numerically lowest) Category unless
such differential is more than one Category in which case the Applicable Margin
applicable to any Base Rate Loan or Eurodollar Loan shall be based upon the
inferior (or numerically highest) Category and (d) if any rating established or
deemed to have been established by Moody's, S&P or Duff & Phelps shall be
changed (other than as a result of a change in the rating system of Moody's, S&P
or Duff & Phelps), such change shall be effective as of the date on which such
change is first announced by the rating agency making such change. Each such
change shall apply to all Base Rate Loans and Eurodollar Loans that are
outstanding at any time during the period commencing on the effective date of
such change and ending on the date immediately preceding the effective date of
the next such change. If the rating system of Moody's, S&P or Duff & Phelps
shall change prior to the Maturity Date, the Borrower and the Banks shall
negotiate in good faith to amend the references to specific ratings in this
definition to reflect such changed rating system.
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Asset Sale means any sale, lease or other disposition (including any such
transaction effected by way of merger, amalgamation or consolidation) by the
Borrower or any of its Subsidiaries or Specified Affiliates subsequent to the
date hereof of any asset (including stock), including without limitation any
Sale-Leaseback Transaction, whether or not involving a Capital Lease, but
excluding (a) any sale, lease or other disposition of real property in the
ordinary course of business of the Borrower or any of its Subsidiaries or
Specified Affiliates, (b) any sale, lease or other disposition of raw materials,
supplies or other nonfixed assets in the ordinary course of business, (c) any
sale, lease or other disposition of surplus, obsolete or worn out machinery,
equipment, molds or other manufacturing equipment in the ordinary course of
business to the extent that the aggregate book value of all of such assets sold,
leased or otherwise disposed of in a fiscal year does not exceed $250,000.00 (on
a non-cumulative basis), (d) any sale, lease or other disposition to the
Borrower or any Wholly-Owned Consolidated Subsidiary or Specified Affiliate of
the Borrower, (e) any sale or other disposition in the ordinary course of
business of readily marketable securities, (f) any disposition of cash not
prohibited hereunder, (g) any Securities Transaction, and (h) the issuance of
any shares of stock in any Specified Affiliate to any officer, director or
employee of the Borrower.
Assignee shall have the meaning given to such term in Section 9.06(c).
Bank means each bank listed on the signature pages hereof, each Assignee
which becomes a Bank pursuant to Section 9.06(c), and their respective
successors.
Base Rate means, for any day, the per annum interest rate equal to the
greater of the (a) Prime Rate or the (b) Federal Funds Rate plus 1/2%.
Base Rate Borrowing means a Borrowing consisting of Base Rate Loans.
Base Rate Loan means a Loan hereunder which bears interest at the Base Rate
plus the Applicable Margin pursuant to the applicable Notice of Borrowing or
Notice of Interest Rate Election or the provisions of Article VIII.
Benefit Arrangement means at any time an employee benefit plan within the
meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and
which is maintained or otherwise contributed to by any member of the ERISA
Group.
Borrower means Healthcare Realty Trust Incorporated, a corporation
organized and existing under the laws of the State of Maryland, and its
successors.
Borrowing means a borrowing under this Credit Agreement consisting of Loans
made to the Borrower by the Banks on a pro rata basis determined with reference
to each Bank's Commitment Percentage pursuant to Section 2.01.
Business Day means any day except a Saturday, Sunday or other day on which
commercial banks in Charlotte, North Carolina or New York, New York are
authorized or required by law to close.
Buy-Sell Agreement means a written agreement between the Borrower or any
Subsidiary, as purchaser, and one or more third parties, as seller, obligating
the Borrower or such Subsidiary, upon payment of a definitely determinable
price, to acquire the real property and improvements described therein without
contingency, except that the improvements are constructed in accordance with the
conditions set forth in the particular Buy-Sell Agreement.
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Capital Lease means a lease that would be capitalized on a balance sheet of
the lessee prepared in accordance with generally accepted accounting principles.
Capital Lease Indebtedness means indebtedness incurred pursuant to a
Capital Lease.
Closing Date means the date on which the conditions set forth in Article
III to the making of the initial Loan hereunder shall have been fulfilled and on
which such initial Loan shall have been made.
Code means the Internal Revenue Code of 1986, as amended from time to time,
or any successor statute.
Commitment means, with respect to each Bank, the amount set forth opposite
the name of such Bank under the heading Commitment on the signature pages
hereof, as such amount may be reduced from time to time pursuant to Section
2.06.
Commitment Percentage means, with respect to each Bank, the percentage that
such Bank's Commitment constitutes of the aggregate amount of the Commitments.
Consolidated Capital Expenditures means, for any period, the additions to
property, plant and equipment and other capital expenditures of the Borrower and
its Consolidated Subsidiaries for such period, as the same are or would be set
forth in a consolidated statement of cash flows of the Borrower and its
Consolidated Subsidiaries for such period.
Consolidated EBIT means, for any period, the sum of (a) the consolidated
net income of the Borrower and its Consolidated Subsidiaries for such period
plus (b) to the extent deducted in determining such consolidated net income,
Consolidated Interest Expense, plus (c) the amount of any consolidated income
taxes (or minus the amount of any consolidated tax benefits) of the Borrower and
its Consolidated Subsidiaries for such period.
Consolidated Funded Indebtedness means, without duplication, all
obligations, liabilities and indebtedness of the Borrower and its Subsidiaries
of the types described in subsections (a)-(f) of the definition of Debt.
Consolidated Interest Coverage Ratio means as of the last day of any
quarter of the Borrower, the ratio of (x) Consolidated EBIT to (y) Consolidated
Interest Expense.
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Consolidated Interest Expense means, for any period, the cash interest
expense and letter of credit fee expense of the Borrower and its Consolidated
Subsidiaries determined on a consolidated basis for such period.
Consolidated Senior Debt means all Consolidated Funded Indebtedness other
than any amount thereof the repayment of which has been subordinated to the
repayment of any other Consolidated Funded Indebtedness.
Consolidated Subsidiary means at any date any Subsidiary or other entity
the accounts of which would be consolidated with those of the Borrower in its
consolidated financial statements if such statements were prepared as of such
date. For purposes of this Credit Agreement, Specified Affiliates of the
Borrower shall be classified as Consolidated Subsidiaries.
Consolidated Tangible Net Worth means, at any time, consolidated
stockholders' equity of the Borrower and its Consolidated Subsidiaries
determined as of such time in accordance with generally accepted accounting
principles applied on a consistent basis, with no upward adjustments due to a
revaluation of assets, minus all Intangible Assets.
Consolidated Total Capital means, at any time, the sum of (a) Consolidated
Tangible Net Worth plus (b) Consolidated Funded Indebtedness.
Constitutional Documents in relation to any corporate Person means the
Certificate of Incorporation and By-Laws or other constitutional documents of
such corporate Person.
Credit Agreement shall have the meaning given to such term in the
introductory paragraph hereof.
Debt of any Person means at any date, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (c)
all unconditional obligations of such Person to pay (as opposed to a contingent
or conditional obligation of such Person to pay) the deferred purchase price of
property or services, except security deposits, sums retained to secure
performance, trade accounts payable and accrued expenses arising in the ordinary
course of business, (d) all Capitalized Lease Indebtedness, (e) all Debt of
others secured by a Lien on any asset of such Person, whether or not such Debt
is assumed by such Person (to the extent of the lesser of the amount of such
Debt and the book value of any assets subject to such Lien), (f) the maximum
amount of all letters of credit issued or acceptance facilities established for
the account of such Person and, without duplication, all drafts drawn thereunder
(other than letters of credit and acceptance facilities supporting other Debt of
such Person), (g) obligations under Interest Rate Protection Agreements, (h) all
indebtedness relating to or arising from any Securities Transactions, and (i)
all Debt of others Guaranteed by such Person (to the extent of the lesser of the
amount of such Debt Guaranteed or the amount of such Guarantee); provided,
however, Debt shall not include obligations under Buy-Sell Agreements.
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Default means any condition or event which constitutes an Event of Default
or which with the giving of notice or lapse of time or both would, unless cured
or waived, become an Event of Default.
Dollars and $ means lawful money of the United States of America.
Dollar Amount means, in relation to any Debt denominated in Dollars, the
amount of such Debt.
Domestic Lending Office means, as to each Bank, its office located at its
address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending office by
notice to the Borrower and the Agent.
Environmental Laws means any and all federal, state, local and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, grants, licenses, agreements or other governmental restrictions
including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act, the Superfund Amendments and Reauthorization
Act, the Resource Conservation and Recovery Act, the Toxic Substances Control
Act, the Clean Air Act and the Clean Water Act relating to the environment or to
emissions, discharges or releases of pollutants, contaminants, petroleum or
petroleum products, chemicals or industrial, toxic or hazardous substances or
wastes into the environment (including, without limitation, ambient air, surface
water, ground water or land) or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, petroleum or petroleum products, chemicals
or industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
ERISA means the Employment Retirement Income Security Act of 1974, as
amended, or any successor statute.
ERISA Group means the Borrower and all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated as a single
employer under Section 414 of the Code.
Eurodollar Borrowing means any Borrowing consisting of Eurodollar Loans.
Eurodollar Business Day means any Business Day on which the Agent and the
Eurodollar Reference Bank are open for international business (including
dealings in Dollar deposits) in London. Eurodollar Lending Office means, as to
each Bank, its office, branch or affiliate located at its address set forth in
its Administrative Questionnaire (or identified in its Administrative
Questionnaire as its Eurodollar Lending Office) or such other office, branch or
affiliate of such Bank as it may hereafter designate as its Eurodollar Lending
Office by notice to the Agent.
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Eurodollar Loan means a Loan which bears interest at the Adjusted
Eurodollar Rate plus the Applicable Margin pursuant to the applicable Notice of
Borrowing or Notice of Interest Rate Election.
Eurodollar Reference Bank means NationsBank.
Event of Acceleration means any of the events or conditions set forth in
Sections 6.01(g) or (h) with respect to the Borrower.
Event of Default has the meaning set forth in Section 6.01.
Federal Funds Rate means, for any day, the rate per annum (rounded upward
to the nearest 1/100th of 1% per annum, if such average is not such a multiple)
equal to the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers on such date, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day, provided that (a) if such day is
not a Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published on such next
succeeding Business Day, the Federal Funds Rate for such date shall be the
average rate quoted to NationsBank on such date on such transactions as
determined by the Agent.
Financing Documents means the Credit Agreement, the Notes and the
Subsidiaries Guarantees, in each case as amended and in effect from time to
time.
Foreign Government means any government other than that of the United
States of America or any political subdivision thereof.
Foreign Person means (a) any Foreign Government, (b) any agency of a
Foreign Government, (c) any form of business enterprise organized under the laws
of any country other than the United States of America or its possessions or any
political subdivision thereof or (d) any form of business enterprise owned or
controlled by any of the Persons described in clauses (a), (b) or (c) of this
definition.
Funds From Operations means the Borrower's net income (loss), excluding
gains (losses) from restructuring of indebtedness and sales of property, plus
depreciation and amortization, and after adjustments for unconsolidated
partnerships and joint ventures. Adjustments for unconsolidated partnerships and
joint ventures are to be calculated to reflect Funds From Operations on the same
basis.
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Government means the federal government of the United States of America or
any agency thereof.
Group or Group of Loans means at any time a group of Loans consisting of
(a) all Base Rate Loans at such time or (b) all Eurodollar Loans having the same
Interest Period at such time; provided that, if a Loan of any particular Bank is
converted to or made as a Base Rate Loan pursuant to Sections 8.02 or 8.04, such
Loan shall be included in the same Group or Groups of Loans from time to time as
if it had not been so converted or made as a Base Rate Loan.
Guarantee by any Person means any obligation, contingent or otherwise, of
such Person directly or indirectly guaranteeing any Debt or other obligation of
any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (a) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt or other obligation (whether by virtue of partnership arrangements, by
agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or (b)
entered into for the purpose of assuring in any other manner the obligee of such
Debt or other obligation of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part); provided that the term
Guarantee shall not include endorsement for collection or deposit in the or
course of business.
Hazardous Substance means any toxic or hazardous substance, including
petroleum and its derivatives presently regulated under the Environmental Laws.
Intangible Assets shall mean, as of the date of any determination thereof,
the total amount of all assets of the Borrower and its Subsidiaries consisting
of goodwill patents, trade names, trademarks, copyrights, franchises,
experimental expense, organization expense, unamortized debt discount and
expense, deferred assets (other than prepaid insurance and prepaid taxes), the
excess of cost of shares acquired over book value of related assets and such
other assets as are properly classified as intangible assets in accordance with
generally accepted accounting principles.
Interest Period means, with respect to each Eurodollar Loan, a period
commencing on the date of Borrowing specified in the applicable Notice of
Borrowing or on the date specified in the applicable Notice of Interest Rate
Election and ending, one, two, three or six months thereafter, as the Borrower
may elect in the applicable Notice; provided that:
(i) any Interest Period which would otherwise end on a day which is not a
Eurodollar Business Day shall be extended to the next succeeding Eurodollar
Business Day unless such Eurodollar Business Day falls in another
calendar month, in which case such Interest Period shall end on the
next preceding Eurodollar Business Day.,
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(ii) any Interest Period which begins on the last Eurodollar 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 Eurodollar Business Day of a calendar month;
and
(iii) any Interest Period with respect to a Loan that would otherwise
extend beyond the Maturity Date shall end on the Maturity Date.
Interest Rate Protection Agreement means interest rate swap agreement or
interest rate future, option, cap, collar or other hedging arrangements.
Investment means any investment in any Person, whether by means of share
purchase, capital contribution, loan, time deposit, warrant, option or
otherwise.
Investment Policy means the Borrower's investment policy currently in
effect as of the date hereof and as previously disclosed in writing to the
Banks, and as amended from time to time by Borrower with the approval of
Majority Banks, which approval shall not be unreasonably delayed, it being
agreed and understood that in the event Agent does not notify in writing within
ten (10) days following the date of Agent's receipt of Borrower's request for
approval of an amendment to the Investment Policy that the Majority Banks have
disapproved the requested amendment, the Majority Banks shall be deemed to have
approved the amended investment Policy.
Liens means, with respect to any asset, any mortgage, lien, pledge, charge,
security interest or encumbrance of any kind in respect of such asset. For the
purposes of this Credit Agreement, the Borrower or any Subsidiary of the
Borrower shall be deemed to own subject to a Lien any asset which it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sales agreement, capital lease or other title retention agreement
relating to such asset.
Loan means a Eurodollar Loan or a Base Rate Loan and Loans means Eurodollar
Loans or Base Rate Loans or any combination of the foregoing.
Long-Term Debt shall mean, at any time, any publicly-held senior unsecured
debt obligations outstanding at such time with a maturity more than one (1) year
after the date of any determination hereunder.
Majority Banks means Banks having 66 2/3% of the aggregate amount of the
Commitments or, if the Commitments shall have been terminated, holding Notes
evidencing 66 2/3% of the aggregate unpaid principal amount of the Loans.
Margin Stock has the meaning assigned to such term in Regulation U or
Regulation G (to the extent applicable).
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Material Plan means a Plan or Plans having aggregate Unfunded Liabilities
in excess of $1,000,000.
Material Subsidiary means the Subsidiaries listed on Schedule 1.01 attached
hereto and any Subsidiary which subsequent to the Closing Date owns assets
(including stock) having an aggregate market value in excess of $2,500,000.
Maturity Date shall have the meaning given to such term in Section 2.04(a)
hereof.
Moody's means Moody's Investor Services, Inc.
Multiemployer Plan means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five (5) plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five (5) year period.
NationsBank means NationsBank of Georgia, N.A., a national banking
association.
Net Sale Proceeds means, with respect to any Asset Sale, (a) the cash
proceeds received by the Borrower or any of its Subsidiaries, minus (b) the sum
of (i) fees and expenses incurred by the Borrower or such Subsidiary in
connection with such Asset Sale, (ii) cash or incremental taxes payable by the
Borrower or such Subsidiary as a result of and in connection with such Asset
Sale, (iii) any Debt secured by a Lien on any assets subject to such Asset Sale
and required to be repaid in connection with such Asset Sale and (iv) any
portion of such proceeds payable to any holder (other than the Borrower or any
of its Subsidiaries or any of its Affiliates) of any direct or indirect minority
interest in such assets.
Notes means the promissory notes of the Borrower evidencing the obligations
of the Borrower to repay the Loans, in the form of Exhibit A, as the same may be
amended, supplemented or otherwise modified from time to time.
Notice of Borrowing has the meaning given to such term in Section 2.02(a).
Notice of Interest Rate Election has the meaning given to such term in
Section 2.08(a).
Obligor means the Borrower and any of its Subsidiaries from time to time
party to any Financing Document, and their respective successors.
Parent means, with respect to any Bank, any Person as to which such Bank is
a Subsidiary.
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Participant means a bank or other institution which assumes, in
accordance with Section 9.06(b), a participating interest with respect to the
Loans, the Notes and this Credit Agreement.
PBGC means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
Person means an individual a corporation, a partnership, an association, a
trust or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
Plan means at any time an employee pension benefit plan as defined in
Subsection 3(2) of ERISA (other than a Multiemployer Plan) which is covered by
Title IV of ERISA or subject to the minimum funding standards under Section 412
of the Code and either (a) is maintained, or contributed to, by any member of
the ERISA Group for employees of any member of the ERISA Group or (b) has at any
time within the preceding five (5) years been maintained or contributed to, by
any Person which was at such time a member of the ERISA Group for employees of
any Person which was at such time a member of the ERISA Group.
Prime Rate means the rate of interest publicly announced by NationsBank in
Atlanta, Georgia from time to time as its prime rate, which shall not
necessarily be the best or lowest rate of interest offered by NationsBank.
Quarterly Period means a three month period ending on the last Business Day
of each March, June, September and December.
Regulation G means Regulation G of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
Regulation T means Regulation T of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
Regulation U means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
Regulation X means Regulation X of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
Release has the meaning given to such term in Section 4.06(a) hereof.
Sale-Leaseback Transaction means any arrangement with any Person providing
for the leasing by the Borrower or any of its Subsidiaries of any property that
(or of any property similar to and used for substantially the same purposes as
any other property that) has been or is to be sold, assigned, transferred or
otherwise disposed of by the Borrower or any of its Subsidiaries to such Person
with the intention of entering into such lease.
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Securities Transaction means any purchase or other acquisition (including
any such transaction effected by way of partnership formation, upreit, merger,
amalgamation or consolidation) by the Borrower or any of its Subsidiaries
subsequent to the date hereof of any real estate asset or any entity which has
as its principal assets, real estate, through which Borrower or any of its
Subsidiaries issue consideration comprised principally of its respective stock
or securities, including, without limitation, common stock, preferred stock,
bonds, and hybrid securities.
S&P means Standard & Poor's Corporation.
Solvent means, with respect to any person on a particular date, that on
such date (a) the fair value of the property of such Person is greater than the
total amount of liabilities, including, without limitation, contingent
liabilities, of such Person, (b) the present fair saleable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (c) such Person is able to realize upon its assets and pay its debts
and other liabilities, contingent obligations and other commitments as they
mature, (d) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person's ability to pay as such debts and
liabilities mature, and (e) such Person is not engaged in a business or a
transaction, and is not about to engage in a business or a transaction, for
which such Person's property would constitute unreasonably small capital after
giving due consideration to the prevailing practice in the industry in which
such Person is engaged. In computing the amount of contingent liabilities at any
time, it is intended that such liabilities wig be computed at the amount which,
in light of all the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability.
Specified Affiliate means any corporation, association or other business
entity formed for the purpose of earning income not qualified as rents from real
property under applicable provisions of the Code, in which the Borrower owns
substantially all of the economic interest but less than 10% of the voting
interests, and the remaining economic and voting interests are subject to
restrictions requiring that ownership of such interests be held by officers,
directors or employees of the Borrower.
Subsidiaries Guarantee means the Subsidiaries Guarantee to be executed and
delivered by each of the Material Subsidiaries, substantially in the form of
Exhibit B as the same may be amended, supplemented or otherwise modified from
time to time.
Subsidiary means, with respect to any Person, any corporation or other
entity of which securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other persons performing
similar functions are at such time directly or indirectly owned by such Person.
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UCC means, with respect to any jurisdiction, the Uniform Commercial Code as
then in effect in that jurisdiction.
Unfunded Liabilities means, with respect to any Plan at any time, the
amount (if any) by which (a) the present value of all benefits under such Plan
exceeds (b) the fair market value of all Plan assets allocable to such benefits
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
Unused Fee shall have the meaning given to such term in Section 2.13(a).
Wholly-Owned Consolidated Subsidiary means, with respect to any Person, any
Consolidated Subsidiary of such Person all of the shares of capital stock or
other ownership interests of which (except directors' qualifying shares) are at
the time directly or indirectly owned by such Person.
SECTION 1.02 Accounting Terms. Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements and certificates required
to be delivered hereunder shall be prepared in accordance with generally
accepted accounting principles in effect as of the Closing Date consistently
applied; provided that, if the Borrower notifies the Agent that the Borrower
wishes to amend any covenant in Article V to eliminate the effect of any change
in generally accepted accounting principles on the operation of such covenant
(or if the Agent notifies the Borrower that the Majority Banks wish to amend
Article V for such purpose), then the Borrower's compliance with such covenant
shall be determined on the basis of generally accepted accounting principals in
effect immediately before the relevant change in generally accepted accounting
principles became effective, until either such notice is withdrawn or such
covenant is amended in a manner satisfactory to the Borrower and the Majority
Banks.
SECTION 1.03 Other Definitional Provisions. References to Articles,
Sections subsections, Schedules and Exhibits shall be to Articles, Sections,
subsections, Schedules and Exhibits, respectively, of this Credit Agreement
unless otherwise specifically provided. Any of the terms defined in Section 1.01
or referred to in Section 1.02 may, unless the context otherwise requires, be
used in the singular or the plural depending on the reference. In this Credit
Agreement, the word including means including without limitation and the word
includes means includes without limitation. Terms defined in this Credit
Agreement and used, but not otherwise defined in the Exhibits and Schedules,
shall have the meaning ascribed to such terms in this Credit Agreement
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ARTICLE II
THE LOANS
SECTION 2.01 Loans. Each Bank severally agrees, on the terms and conditions
set forth in this Credit Agreement (including the conditions set forth in
Section 3.02 hereof) and in reliance on the representations and warranties set
forth herein, to make Loans to the Borrower pursuant to this Section 2.01 from
time to time and including the Closing Date to but not including the Maturity
Date in amounts such that the aggregate principal amount of such Loans by such
Bank at any one time outstanding shall not exceed the Commitment of such Bank.
Within the foregoing limits, the Borrower may borrow under this Section 2.01,
prepay Loans and reborrow pursuant to this Section 2.01. Each Borrowing under
this Section 2.01 which consists of Eurodollar Loans shall be in an aggregate
principal amount of $500,000.00 or, at the election of Borrower, any larger
multiple of $100,000.00 and shall be made from the several Banks ratably in
proportion to their respective Commitments. Each Borrowing under this Section
2.01 which consists of Base Rate Loans shall be in an aggregate principal amount
of $500,000.00 or, at the election of Borrower, any larger multiple of
$100,000.00 and shall be made from the several Banks ratably in proportion to
their respective Commitments.
SECTION 2.02 Method of Borrowing.
(a) The Borrower shall give the Agent and each Bank notice (a Notice of
Borrowing) not later than (i) 11:00 A.M. (Charlotte, North Carolina time) on the
date of each Base Rate Borrowing and (ii) 11:00 A.M. (Charlotte, North Carolina
time) on the third (3rd) Eurodollar Business Day before each Eurodollar
Borrowing, specifying:
(i) the amount of the proposed Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day in the case
of a Base Rate Borrowing or a Eurodollar Business Day in the case
of a Eurodollar Borrowing;
(iii) whether the Loans comprising such Borrowing are to be Base Rate
Loans or Eurodollar Loans, or a combination thereof, and
(iv) in the case of a Eurodollar Borrowing, the duration of the initial
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
(b) Upon receipt of a Notice of Borrowing, the Agent shall promptly notify
each Bank of the contents thereof and of such Banks ratable share of such
Borrowing and such Notice of Borrowing shall not thereafter be revocable by the
Borrower.
(c) Not later than (i) 2:00 P.M., (Charlotte, North Carolina time) on the
date of each Base Rate Borrowing, and (ii) 11:00 A.M. (Charlotte, North Carolina
time) on the date of each Eurodollar Borrowing, each Bank shall make available
its ratable share of such Borrowing, in federal or other funds immediately
available in Charlotte, North Carolina, to the Agent at its address specified in
or pursuant to Section 9.01. Unless any applicable condition specified in
Article III has not been satisfied, the Agent will make the funds so received
from the Banks available to the Borrower at an account of the Borrower with the
Agent immediately after being made available to the Agent at the Agent's
aforesaid address in immediately available funds.
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SECTION 2.03 Notes.
(a) The Loans of each Bank shall be evidenced by one Note payable to the
order of such Bank for the account of its Applicable Lending Office in an amount
equal to the aggregate unpaid principal amount of such Bank's Loan.
(b) Upon receipt of each Bank's Note pursuant to Section 3.01(b), the Agent
shall forward such Note to such Bank via overnight courier service. Each Bank
shall record on its Note the date, amount and maturity of each Loan made by it
and the date and amount of each payment of principal made by the Borrower with
respect thereto, and prior to any transfer of its Note shall endorse on the
schedule forming a part thereof appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding; provided that the
failure of any Bank to make any such recordation or endorsement shall not affect
the obligations of the Borrower hereunder or under such Note. Each Bank is
hereby irrevocably authorized by the Borrower so to endorse its Note and to
attach to and make a part of its Note a continuation of any such schedule as and
when required.
SECTION 2.04 Scheduled Termination of Commitments; Maturity of Loans.
(a) The Commitments shall terminate on December 30, 1999 (the Maturity
Date) and any Loans then outstanding (together with accrued interest thereon)
and all accrued fees and other amounts payable hereunder (including all amounts
payable under Section 2.10) shall be due and payable in full on such date;
provided, however, that within ninety (90) days before the first and second
anniversary of the Closing Date, upon the request of the Borrower and with the
consent of all of the Banks, the current Maturity Date may be extended for an
additional one (1) year period. Each repayment pursuant to this Section 2.04(a)
shall be made together with accrued interest to the date of payment, and shall
be applied ratably to payment of the Loans of the several Banks in proportion to
the aggregate outstanding principal amounts of their Loans.
(b) Within the foregoing limits of this Section 2.04, each required payment
or prepayment shall be applied to the outstanding Group or Groups of Loans as
the Borrower may designate to the Agent not less than five (5) Business Days or
five (5) Eurodollar Business Days, as the case may be, prior to the date
required for such payment or prepayment or failing such designation by the
Borrower, as the Agent may specify by notice to the Borrower and the Banks.
SECTION 2.05 Interest Rates.
(a) Each Base Rate Loan shall bear interest on the outstanding principal
amount thereof, for each day from the date such Loan is made until it becomes
due, at a rate equal to the Base Rate for such day plus the Applicable Margin.
Such interest shall be payable quarterly in arrears on the last day of each
Quarterly Period and on each date a Base Rate Loan is converted to a Eurodollar
Loan. Any overdue principal of or interest on any Base Rate Loan shall bear
interest, payable on demand, for each day until paid at a rate per annum equal
to the sum of 2.000% plus the rate otherwise applicable to Base Rate Loans for
such day.
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(b) Each Eurodollar Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto, at a rate equal to
the Adjusted Eurodollar Rate for such Interest Period plus the Applicable
Margin. Such interest shall be payable for each Interest Period on the last day
thereof and, if such Interest Period is longer than 3 months, at intervals of 3
months after the first day thereof. Any overdue principal of or interest on any
Eurodollar Loan shall bear interest, payable on demand for each day until paid
at a rate per annum equal to the sum of 2.000% plus (i) for each day during any
Interest Period applicable to such Eurodollar Loan, the rate applicable to such
Eurodollar Loan for such day, and (ii) for each day after the end of such
Interest Period, the sum of 2.000% plus the rate applicable to Base Rate Loans
for such day.
(c) The Agent shall determine each interest rate applicable to the Loans
hereunder. The Agent shall give prompt notice to the Borrower and the Banks by
facsimile, telex or cable of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
(d) The Eurodollar Reference Bank agrees to use its best efforts to furnish
quotations to the Agent as contemplated by this Section 2.05. If the Eurodollar
Reference Bank does not a timely quotation, the provisions of Section 8.01 shall
apply.
SECTION 2.06 Optional Termination or Reduction of Commitment. The Borrower
may at any time, upon at least three (3) Business Days' written notice to the
Agent, terminate the Commitments in whole or reduce the Commitments in part up
to the amount by which the Commitments exceed the aggregate principal amount of
the Loans; provided, however, any such partial reduction shall be in a minimum
amount of $5,000,000.00 (or such lesser aggregate amount of the Commitments as
may then be in effect) or any larger multiple of $1,000,000.00, provided
further, any such reduction shall be made ratably among the Banks.
SECTION 2.07 Prepayments.
(a) Optional Prepayments.
(i) The Borrower may, upon written notice delivered to the Agent not
later than 2:00 P.M. (Charlotte, North Carolina time) on the first
Business Day prior to the date of such prepayment, prepay a Group of
Base Rate Loans in whole at any time, or from time to time in part in
amounts aggregating $500,000.00 or any larger multiple of $100,000.00
by paying (in Dollars) the principal amount to be prepaid together with
accrued interest thereon to the date of prepayment.Each such optional
prepayment shall be applied to prepay ratably the Base Rate Loans
of the several Banks included in such Group.
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(ii) The Borrower may, upon at least three (3) Eurodollar
Business Days' notice to the Agent, prepay a Group of Eurodollar Loans
in whole at any time, or from time to time in part in amounts
aggregating $500,000.00 or any larger multiple of $100,000.00, by
paying the principal amount to be prepaid together with accrued
interest thereon to the date of prepayment, as designated by Borrower
pursuant to Section 2.04(b); provided that the Borrower shall reimburse
each Bank for any loss or expense incurred by it as a result of any
such prepayment in accordance with Section 2.10. Each such
optional prepayment shall be applied to prepay ratably the Loans of
the several Banks included in such Group.
(iii) Upon receipt of a notice of prepayment pursuant to this Section,
the Agent shall promptly notify each Bank of the contents thereof
and of such Bank's ratable share of such prepayment and such notice
shall not thereafter be revocable by the Borrower.
(b) Mandatory Prepayments.
i) Mandatory Prepayments from Asset Sales. Within five (5)
Business Days (or such longer period of time agreed to by the Banks) of
each receipt by the Borrower or any of its Subsidiaries or Specified
Affiliates of any Net Sale Proceeds from any Asset Sale, the Borrower
shall prepay, or cause such Subsidiary or Specified Affiliate to prepay
on behalf of the Borrower, to the Agent for the account of the Banks an
amount equal to 100% of all Net Sale Proceeds from all such Asset
Sales. Prepayments pursuant to this subsection (b)(i) shall be applied
to prepay the Loans, together with interest accrued thereon to the date
of prepayment; provided, however, that in the event of any such
prepayment of a Eurodollar Loan other than on the last day of the
Interest Period therefor, the Borrower shall be obligated to reimburse
the Banks in respect thereof pursuant to Section 2.10.
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(ii) Mandatory Prepayment from the Proceeds of Equity
Contributions or the Issuance of Stock. Within five (5) Business Days
(or such longer period of time agreed to by the Banks) of each date on
which the Borrower or any of its Subsidiaries receives cash proceeds
from any equity contributions or cash proceeds from the issuance of
stock, the Borrower shall pay, or shall cause any such Subsidiary to
pay, such cash proceeds less any actual out of pocket expenses, fees
and other sums paid or incurred by Borrower or its Subsidiary in
connection therewith, to the Agent for the ratable account of the
Banks; provided however, that this provision shall not apply to any
Dividend Reinvestment Plan or any successor or similar plan of the
Borrower. Prepayments pursuant to this subsection (b)(ii) shall be
applied to prepay the Loans, together with interest accrued thereon to
the date of prepayment, as designated by Borrower pursuant to Section
2.04(b); provided, however, that in the event of any such prepayment of
a Eurodollar Loan other than on the last day of the Interest Period
therefor, the Borrower shall be obligated to reimburse the Banks in
respect thereof pursuant to Section 2.10.
(iii) Mandatory Prepayment from the Proceeds of Debt.
Within five (5) Business Days (or such longer period of time agreed to
by the Banks) of each date on which the Borrower or any of its
Subsidiaries receives cash proceeds from the issuance of any Debt, the
Borrower shall pay, or shall cause any such Subsidiary to pay, such
cash proceeds, less any actual out of pocket expenses, fees and other
sums paid or incurred by Borrower or such Subsidiary in connection
therewith, to the Agent for the ratable account of the Banks.
Prepayments pursuant to this subsection (b)(iii) shall be applied to
prepay the Loans, together with interest accrued thereon to the date of
prepayment, as designated by Borrower pursuant to Section 2.04(b);
provided, however, that in the event of any such prepayment of a
Eurodollar Loan other than on the last day of the Interest Period
therefor, the Borrower shall be obligated to reimburse the Banks in
respect thereof pursuant to Section 2.10.
(iv) Notice of Mandatory Prepayment. The Borrower shall notify the
Agent of any prepayment pursuant to this Section 2.07 at least two (2)
Business Days prior to the date on which such prepayment is
required to be made; provided, however, that the failure to give such
notice shall not affect the obligation of the Borrower to make such
prepayment on such date.
SECTION 2.08 Method of Electing Interest Rates.
(a) The Loans included in each Borrowing shall bear interest initially at
the type of rate specified by the Borrower in the applicable Notice of
Borrowing.Thereafter, the Borrower may from time to time elect to change or
continue the type of interest rate borne by each Group of Loans (subject in each
case to the provisions of Article VIII), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect to
convert such Loans to Eurodollar Loans as of any Eurodollar Business
Day; and
(ii) if such Loans are Eurodollar Loans, the Borrower may elect to
convert such Loans to Base Rate Loans or elect to continue such Loans
as Eurodollar Loans for an additional Interest Period, in each case
effective on the last day of the then current Interest Period
applicable to such Loans;
provided, that the Borrower may not elect to continue any Eurodollar Loan or
convert any Loan into a Eurodollar Loan after the occurrence and during the
continuation of a Default. Each such election shall be made by delivering a
notice (a Notice of Interest Rate Election) to the Agent no later than 11:00
A.M. (Charlotte, North Carolina time) (x) if the relevant Loans are to be
converted to Base Rate Loans, the second Business Day before such conversion or
continuation is to be effective and (y) if the relevant Loans are to be
converted to Eurodollar Loans or continued as Eurodollar Loans for an additional
Interest Period, the third Eurodollar Business Day before such conversion or
continuation is to be effective. A Notice of Interest Rate Election may, if it
so specifies, apply to only a portion of the aggregate principal amount of the
relevant Group of Loans; provided that (i) such portion is allocated ratably
among the Loans comprising such Group and (ii) the portion to which such Notice
applies, and the remaining portion to which it does not apply, are each at least
$500,000.00 and no more than one of such portions is other than a multiple of
$100,000.00.
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(b) Each Notice of Interest Rate Election shall specify: (i) the Group of
Loans (or portion thereof) to which such notice applies;
(ii) the date on which the conversion or continuation selected in such
notice is to be effective, which shall comply with subsection
(a) above;
(iii) if the Loans comprising such Group are to be converted, the
new type of Loans and, if such new Loans are Eurodollar Loans, the
duration of the initial Interest Period applicable thereto; and
(iv) if such Loans are to be continued as Eurodollar Loans for an
additional Interest Period, the duration of such additional
Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period. No more than 4
Groups of Loans shall be outstanding at any one time.
(c) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to Section 2.08(a) above, the Agent shall promptly notify each
Bank of the contents thereof and such notice shall not thereafter be revocable
by the Borrower. If the Borrower fails to deliver a timely Notice of Interest
Rate Election to the Agent for any Group of Eurodollar Loans, such Loans shall
be converted into Base Rate Loans on the last day of the then current Interest
Period applicable thereto.
SECTION 2.09 General Provisions as to Payments.
(a) The Borrower shall make each payment of principal of, and interest on,
the Loans and of fees hereunder, not later than 3:00 p.m. (Charlotte, North
Carolina time) on the date when due, in federal or other funds immediately
available in Charlotte, North Carolina, to the Agent at its address referred to
in Section 9.01 and any of such payments received after 3:00 p.m. on the
required due date shall be deemed to have been paid by the Borrower on the next
succeeding Business Day. Any such payment with respect to a Loan shall be made
in Dollars. The Agent will promptly distribute to each Bank its ratable share of
each such payment received by the Agent for the account of the Banks. Whenever
any payment of principal of, or interest on, the Base Rate Loans or of fees
shall be due on a day which is not a Business Day, the date for payment thereof
shall be extended to the next succeeding Business Day. Whenever any payment of
principal of, or interest on, the Eurodollar Loans shall be due on a day which
is not a Eurodollar Business Day, the date for payment thereof shall be extended
to the next succeeding Eurodollar Business Day unless such Eurodollar Business
Day falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Eurodollar Business Day. If the date for any payment
of principal is extended by operation of law or otherwise, interest thereon
shall be payable for such extended time.
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(b) Unless the Agent shall have received notice from the Borrower prior
to the date on which any payment is due to the Banks hereunder that the Borrower
will not make such payment in full, the Agent may assume that the Borrower has
made such payments in full to the Agent, on such date and the Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent that
the Borrower shall not have so made such payments, each Bank shall repay to the
Agent forthwith on demand such amount distributed to such Bank together with
interest thereon, for each day from the date such amount is distributed to such
Bank until the date such Bank repays such amount to the Agent, at the Federal
Funds Rate.
SECTION 2.10 Funding Losses. If the Borrower makes any payments of
principal with respect to any Eurodollar Loan or any Eurodollar Loan a converted
to is converted to another type of Loan (pursuant to Articles II, VI, VIII, or
otherwise) on any day other than the last day of an Interest Period applicable
thereto, or if the Borrower fails to borrow or prepay any Eurodollar Loans after
notice has been given to any Bank in accordance with the terms hereof, the
Borrower shall reimburse each applicable Bank on demand for any resulting
reasonable out of pocket loss or expense incurred by it (or any existing
Participant in the related Loan, provided that the amount collected by a Bank
and its Participant shall not exceed the amount which the Bank would have been
entitled to collect absent such participation), including (without limitation)
any such loss incurred in obtaining, liquidating or employing deposits from
third parties to fund or maintain such Loan or proposed Loan, but excluding loss
of margin for the period after any such payment or conversion or failure to
borrow or prepay, provided that such Bank shall have delivered to the Borrower
(with a copy to the Agent) a certificate prior to requesting reimbursement
setting forth in reasonable detail its calculation of the amount of such loss or
expense, which certificate shall be conclusive in the absence of manifest error.
NOTWITHSTANDING THE FOREGOING PROVISIONS OF THIS SECTION 2.10 TO THE CONTRARY,
THE TERM LOSS SHALL NOT INCLUDE AND BORROWER SHALL NOT BE RESPONSIBLE FOR THE
PAYMENT OF ANY LOST PROFITS (IN EXCESS OF THE AMOUNTS OTHERWISE PAYABLE BY
BORROWER HEREUNDER AS A PART OF THE ADJUSTED EURODOLLAR RATE) OR ANY
CONSEQUENTIAL, SPECULATIVE, PUNITIVE OR OTHER DAMAGES.
SECTION 2.11 Computation of Interest and Fees. All interest and fees
hereunder shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
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SECTION 2.12 Withholding Tax Exemption. At least five (5) Business Days
prior to the first date on which interest or fees are payable hereunder for the
account of any Bank, each Bank that is not incorporated under the laws of the
United States of America or a state thereof agrees that it will deliver to the
Borrower and the Agent two duly and properly completed copies of United States
Internal Revenue Service Form 1001 or 4224 (or any successor form, in either
case), certifying in either case that such Bank is entitled to receive payments
under this Credit Agreement and the Notes without deduction or withholding of
any United States federal income taxes. Each Bank which so delivers a Form 1001
or 4224 (or any successor form, in either case) further undertakes to deliver to
the Borrower and the Agent two (2) additional copies of such form (or a
successor form) on or before the date that such form expires or becomes obsolete
or after the occurrence of any event requiring a change in the most recent form
so delivered by it, and such amendments thereto or extensions or renewals
thereof as may be reasonably requested by the Borrower or the Agent, in each
case certifying that such Bank is entitled to receive payments under this Credit
Agreement and the Notes without deduction or withholding of any United States
federal income taxes, unless an event (including without limitation any change
in treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Bank from duly completing and delivering any such
form with respect to it and such Bank advises the Borrower and the Agent that it
is not capable of receiving payments without any deductions or withholding of
United States federal income tax, in which case such Bank shall have appropriate
amounts withheld pursuant to applicable law. Notwithstanding any provision
contained in this Credit Agreement to the contrary, if Borrower, on advice of
counsel, reasonably believes that Borrower should withhold an amount with
respect to any Bank on account of any applicable Government requirement,
Borrower shall be entitled to withhold such sum in accordance with the
applicable Government requirement. If Borrower fails to withhold an amount with
respect to any Bank which Borrower should have withheld under any applicable
Government requirement, such Bank shall indemnity and hold Borrower harmless
from and against all costs, liabilities, expenses (including reasonable
attorneys fees), penalties and interest incurred by or asserted against Borrower
in connection therewith.
SECTION 2.13 Fees.
(a) Unused Fee. From and after the Closing Date, the Borrower agrees to pay
the Agent for the ratable benefit of the Banks an unused fee for each calendar
quarter, prorated for partial quarters, in an amount equal to the Applicable Fee
Percentage multiplied by the average daily unused amount of the Commitments (the
Unused Fee). The Unused Fee shall be payable quarterly in arrears on the last
day of each Quarterly Period commencing March 31, 1997. The Agent shall
distribute the Unused Fee to the Banks pro rata in accordance with the
respective Commitments of the Banks.
(b) Upfront Fee. The Borrower agrees to pay each Bank an upfront fee on the
Closing Date in an amount agreed to by the Borrower and such Bank.
(c) Agent's Fees. The Borrower agrees to pay the Agent such fees as may be
agreed upon by the Agent and the Borrower from time to time.
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ARTICLE III
CONDITIONS
SECTION 3.01 Conditions to Initial Loans. The obligation of each Bank to
make its initial Loan hereunder is subject to the satisfaction of such of the
following conditions in all material respects on or prior to the Closing Date as
shall not have been expressly waived in accordance with Section 9.05:
(a) The Agent shall have received counterparts hereof signed by each of the
parties hereto (or, in the case of any party (other than the Borrower) as to
which an executed counterpart shall not have been received, receipt by the Agent
in form satisfactory to it of telegraphic, facsimile, telex or other written
confirmation from such party of execution of a counterpart hereof by such
party); provided, however, in any event, the Agent shall distribute to each Bank
promptly after the Closing Date an original Credit Agreement executed by the
Borrower, the Banks and the Agent;
(b) The Agent shall have received a duly executed Note for the account of
each Bank, comply with Section 2.03;
(c) The Agent shall have received the duly executed Subsidiaries
Guarantees;
(d) The Agent and each Bank shall have received legal opinions of counsel
to the Borrower, substantially to the effect of Exhibit C hereto;
(e) The Agent shall have received all documents it may reasonably request
relating to the existence of the Borrower and each Obligor, the corporate
authority for and the validity of each of the Financing Documents, and any other
matters relevant hereto, all in form and substance satisfactory to the Agent;
(f) The Agent shall receive the applicable Notice of Borrowing relating to
such Loan;
(g) No Default shall have occurred and be continuing immediately before the
making of such Loan and no Default shall exist immediately thereafter;
(h) The representations and warranties of the Borrower made in or pursuant
to the Financing Documents to which it is a party shall be true in all material
respects as of the date of the making of such Loan;
(i) The proceeds of the Loans will be extended in compliance with all
applicable governmental laws and regulations (including without limitation
Regulations U, G, T and X);
(j) The Agent shall have received a certificate of the Borrower, signed on
behalf of Borrower by the Borrower's chief executive officer or chief financial
officer, confirming to the knowledge of such officer that no Default is
continuing, the solvency of the Borrower and satisfaction in all material
respects of all other conditions precedent to the initial borrowing hereunder;
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(k) The Agent and the Banks shall have been paid all fees due and payable
pursuant to Sections 2.13(b) and (c) hereof,
(l) No litigation shall be pending or to the knowledge of Borrower
threatened against Borrower or its Material Subsidiaries which would be likely
to materially and adversely affect the assets, operations, business or
condition, financial or otherwise, of the Borrower and its Material
Subsidiaries, or which could reasonably be expected to affect materially and
adversely the ability of the Borrower to fulfill its obligations hereunder; and
(m) There shall not have occurred or become known any material adverse
change with respect to the condition (financial or otherwise), operations,
business or assets of the Borrower and its Subsidiaries taken as a whole, since
December 31, 1993.
The certificates and opinions referred to in this Section shall be dated
not earlier than the date hereof and not later than the date of such initial
Loans.
SECTION 3.02 Conditions to Loans. The obligation of any Bank to make any
Loan subsequent to the initial Loan is subject to the satisfaction of such of
the following conditions on or prior to the proposed date of the making of such
Loan:
(a) The Agent shall receive the applicable Notice of Borrowing relating to
such loan pursuant to Section 2.02(a) hereof;
(b) No Default shall have occurred and be continuing immediately before the
making of such Loan and no Default shall exist immediately thereafter;
(c) The representations and warranties of the Borrower made in or pursuant
to the Financing Documents to which it is a party shall be true in all material
respects on and as of the date of such Borrowing; and
(d) Immediately following the making of such Loan the sum of the
outstanding principal balance of the Loans shall not exceed the Commitments.
The making of such Loan hereunder shall be deemed to be a representation
and warranty by the Borrower on the date thereof as to the facts specified in
clauses (b), (c) and (d) of this Section.
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ARTICLE IV
EPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01 Corporate Existence and Power. The Borrower and each of its
Subsidiaries is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and has all
corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
SECTION 4.02 Corporate and Governmental Authorization;No Contravention. The
execution and delivery by the Obligors of the Financing Documents and the
performance by the Obligors of their respective obligations thereunder are
within the corporate power of the Obligors, have been duly authorized by all
necessary corporate action, require no action by or in respect of, or filing
with, any governmental body, agency or official (except for any such action or
filing that has been taken and is in full force and effect) and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the Constitutional Documents of any Obligor or of any material
agreement, judgment, injunction, order, decree or other material instrument
binding upon any Obligor or result in the creation or imposition of any Lien on
any asset of any Obligor other than Liens created pursuant to the Financing
Documents.
SECTION 4.03 Binding Effect. The Financing Documents constitute valid and
binding agreements of the Obligors enforceable against the Obligors in
accordance with their terms.
SECTION 4.04 Litigation. Except as set forth on Schedule 4.04 attached
hereto, there is no action, suit or proceeding pending against, or to the
knowledge of the Borrower threatened against or affecting, the Borrower or any
of its Subsidiaries before any court or arbitrator or any governmental body,
agency or official in which there is a reasonable possibility of an adverse
decision which would materially adversely affect the business or the
consolidated results of operations of the Borrower and its Subsidiaries, or
which in any manner draws into question the validity of any Financing Document.
SECTION 4.05 Compliance with ERISA. Except as set forth on Schedule 4.05
attached hereto, each member of the ERISA Group has fulfilled its obligations in
all material aspects under the minimum funding standards of ERISA and the Code
with respect to each Plan and is in compliance in all material respects with the
presently applicable provisions of ERISA and the Code with respect to each Plan.
Except as previously disclosed to the Banks in writing prior to the date hereof,
no member of the ERISA Group has (i) sought a waiver of the minimum funding
standard under Section 412 of the Code in respect of any Plan, (ii) failed to
make any contribution or payment to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement, or made any amendment to any Plan or Benefit
Arrangement, which in either event has resulted or could reasonably be expected
to result in the imposition of a Lien or the posting of a bond or other security
under ERISA or the Code or (iii) incurred any liability under Title IV of ERISA
other than a liability to the PBGC for premiums or similar items under Section
4007 of ERISA.
SECTION 4.06 Environmental Matters. Except as set forth on Schedule 4.06
hereto:
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(a) No written notice, notification, demand, request for information,
citation, summons, complaint or order has been received by the Borrower and to
the knowledge of the Borrower, no penalty has been assessed and no investigation
or review is pending or threatened by any governmental or other entity, (i) with
respect to any alleged violation of any Environmental Laws in connection with
the conduct of the Borrower and relating to a Hazardous Substance or (ii) with
respect to any alleged failure to have any permit, certificate, license,
approval, registration or authorization required in connection with the conduct
of the Borrower relating to a Hazardous Substance or (iii) with respect to any
generation, treatment, storage, recycling, transportation, disposal or release
(including a release as defined in 42 U.S.C Section 9601(22)) (Release) of any
Hazardous Substance used by the Borrower, which alleged violation, alleged
failure to have any required permit, certificate, license, approval, or
registration, or generation, treatment, storage, recycling, transportation,
disposal or release, individually or in the aggregate, is reasonably likely to
result in liability to the Borrower in excess of $1,000,000.00.
(b) (i) To the Borrower's knowledge, there has been no Release of a
Hazardous Substance at, on or under any property used by the Borrower or for
which the Borrower or any of its Subsidiaries would be liable, which Release,
individually, is reasonably likely to result in liability to the Borrower in
excess of $1,000,000.00; (ii) to the Borrower's knowledge, neither the Borrower
nor any of its Subsidiaries has, other than as a generator or in a manner not
regulated or prohibited under the Environmental Laws, stored or treated any
hazardous waste (as defined in 42 U.S.C Section 6903(5)) on any property used by
the Borrower or for which the Borrower or any of its Subsidiaries would be
liable, except for such storage or treatment which individually or in the
aggregate is not reasonably likely to result in liability to the Borrower or any
of its Subsidiaries in excess of $1,000,000.00; and (iii) to the Borrower's
knowledge no polychlorinated biphenyl (PCB) in concentrations greater than 50
parts per million, friable asbestos, or underground storage tank (in use or
abandoned) is at any property used by the Borrower or for which the Borrower or
any of its Subsidiaries would be liable, except for such PCBS, friable asbestos
or underground storage tanks that are not reasonably likely, individually or in
the aggregate, to result in liability to the Borrower or any of its Subsidiaries
in excess of $1,000,000.00.
(c) To the knowledge of the Borrower, neither the Borrower nor any of its
Subsidiaries has transported or arranged for the transportation (directly or
indirectly) of any Hazardous Substance to any location which is listed under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended (CERCLA), on the Comprehensive Environmental Response, Compensation and
Liability Information System, as amended (CERCLIS), or on any similar state list
or which is the subject of any federal state or local enforcement action or
other investigation which may lead to claims for clean-up costs, remedial work,
damages to natural resources or for personal injury claims, including, but not
limited to, claims under CERCLA, that are reasonably likely, individually or in
the aggregate, to result in liability to the Borrower or any of its Subsidiaries
in excess of $1,000,000.00.
(d) No written notification of a Release of a Hazardous Substance has been
filed by or on behalf of the Borrower or any of its Subsidiaries, which
individually or in combination with other such Releases, is reasonably likely to
result in liability for the Borrower or any of its Subsidiaries in excess of
$1,000,000.00.
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(e) There have been no environmental audits or similar investigations
conducted by or which are in the possession of the Borrower or any of its
Subsidiaries in relation to any property used by the Borrower or for which the
Borrower or any of its Subsidiaries would be liable, which identify one or more
environmental liabilities of the Borrower or any of its Subsidiaries which are
reasonably likely to exceed $1,000,000.00 individually or in the aggregate.
SECTION 4.07 Subsidiaries. Set forth on Schedule 4.07 hereto is a complete
and accurate list of all of the Subsidiaries of the Borrower, showing as to each
such Subsidiary the jurisdiction of its organization, the number of shares of
each class of capital stock or other equity interests outstanding and the
percentage of the outstanding shares of each such class owned (directly or
indirectly) by the Borrower or any other Subsidiary of the Borrower and the
number of shares covered by all outstanding options, warrants, rights of
conversion or purchase, and similar rights. All of the outstanding capital stock
or other equity interests of all of such Subsidiaries identified in such
Schedule 4.07 as being owned by the Borrower or any of its Subsidiaries has been
validly issued, is fully paid and nonassessable and is owned directly or
indirectly by the Borrower or any of its Subsidiaries, as the case may be, free
and clear of all Liens other than a Lien described in and permitted by Section
5.07 hereof. Each corporate Subsidiary of the Borrower is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
SECTION 4.08 Not an Investment Company. Neither the Borrower nor any of its
Subsidiaries is an investment company within the meaning of the Investment
Company Act of 1940, as amended.
SECTION 4.09 Margin Stock. No proceeds of any Loan will be used to purchase
or carry any Margin Stock or to extend credit to others for the purpose of
purchasing or carrying any Margin Stock in violation of Regulations U, G, T or
X.
SECTION 4.10 Compliance With Laws. Except as set forth on Schedule 4.10
attached hereto and made a part hereof or as previously disclosed in writing to
the Banks prior to the date hereof, to the Borrower's knowledge, the Borrower
and each of its Subsidiaries is in compliance in all material respects with all
applicable laws, rules and regulations, and is not in violation of, or in
default under, any term or provision of any charter, bylaw, mortgage, indenture,
agreement, instrument, statute, rule, regulation, judgment, decree, order, writ
or injunction applicable to it, except for any such noncompliance, violation,
default or failure to comply which would not be reasonably expected,
individually or in the aggregate, to have a material adverse effect on the
business, financial position or results of operations of the Borrower or any of
its Subsidiaries, or on the ability of the Borrower or any of its Subsidiaries
to perform its obligations under the Financing Documents.
SECTION 4.11 Absence of Liens. There are no liens of any nature whatsoever
on any properties or assets of the Borrower or any of its Subsidiaries, except
as otherwise permitted under Section 5.07 hereof.
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SECTION 4.12 Debt. Other than as set forth on Schedule 4.12 hereto, there
is no material Debt of the Borrower and its Subsidiaries outstanding as of the
date hereof (except for Debt incurred in the ordinary course of business of
Borrower or its Subsidiaries).
SECTION 4.13 Contingent Liabilities. As of the Closing Date, other than as
set on Schedule 4.13 there are no material contingent liabilities (other than
contingent liabilities that constitute Debt and material contingent liabilities
arising out of customary indemnifications given by the Borrower or its
Subsidiaries to its officers and directors, its underwriters or its lenders) of
the Borrower or its Subsidiaries as of the date hereof.
SECTION 4.14 Investments. Set forth on Schedule 4.14 is a complete and
accurate list, in all material respects, as of the date hereof of all
investments by the Borrower or any of its Subsidiaries in any Person, other than
investments by the Borrower or any of its Subsidiaries in a Subsidiary.
SECTION 4.15 Solvency. Each Obligor is Solvent after giving effect to the
transactions contemplated by the Financing Documents.
SECTION 4.16 Taxes. The Borrower and its Subsidiaries have filed, or caused
to be flied, all material tax returns (federal, state, local and foreign)
required to be filed and paid all amounts of taxes shown thereon to be due
(including interest and penalties) and have paid all other taxes, fees,
assessments and other governmental charges owing by them, except for such taxes
(i) which are not yet delinquent or (ii) as are being contested in good faith
and by proper proceedings, and against which adequate reserves are being
maintained in accordance with generally accepted accounting principles. The
Borrower is not aware of any proposed material tax assessments against it or any
of its Subsidiaries.
SECTION 4.17 REIT Status. The Borrower is taxed as a real estate investment
trust within the meaning of Section 856 (a) of the Code.
SECTION 4.18 Specified Affiliates. Except as set forth on Schedule 1.01,
there are no Specified Affiliates as of the date hereof.
ARTICLE V
COVENANTS
The Borrower hereby covenants and agrees that until the Loans, together
with interest, fees and other obligations hereunder, have been paid in full and
the Commitments hereunder shall have terminated, the Borrower shall, and shall
cause its Subsidiaries to, perform and comply with the following covenants:
SECTION 5.01 Information. The Borrower will deliver to Agent:
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(a) as soon as available and in any event within ninety (90) days after the
end of each fiscal year of the Borrower, a consolidated and consolidating
balance sheet of the Borrower and its Subsidiaries as of the end of such fiscal
year and the related consolidated and consolidating statements of income and
consolidated statement of cash flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal year, and, with
respect to such financial information for the Borrower, such consolidated
statements shall be audited statements by Ernst & Young or other independent
public accountants of nationally recognized standing and containing an
unqualified opinion of such accountants;
(b) as soon as available and in any event within forty-five (45) days after
the end of each of the first three (3) fiscal quarters of each fiscal year of
the Borrower, a consolidated and consolidating balance sheet of the Borrower and
its Subsidiaries as of the end of such quarter and the related consolidated and
consolidating statements of income and consolidated statement of cash flows for
such quarter and for the portion of the Borrower's fiscal year ended at the end
of such quarter, setting forth in each case in comparative form the figures for
the corresponding quarter and the corresponding portion of the previous fiscal
year, all certified (subject to normal year-end adjustments) as to fairness of
presentation, generally accepted accounting principles and consistency by the
chief financial officer of the Borrower;
(c) simultaneously with the delivery of each set of financial statements
referred to in subsections (a) and (b) of this Section, a certificate of
Borrower, signed on behalf of Borrower by the chief financial officer of the
Borrower (i) stating whether, to such officer's knowledge, there exists on the
date of such certificate any Default and, if any Default then exists, setting
forth the details thereof and the action that the Borrower is taking or proposes
to take with respect thereto, (ii) stating whether, since the date of the most
recent financial statements previously delivered pursuant to subsection (a) or
(b) of this Section, there has been a change in the generally accepted
accounting principles applied in preparing the financial statements then being
delivered from those applied in preparing the most recent audited financial
statements so delivered which is material to the financial statements then being
delivered, (iii) stating how much of the outstanding principal balance of the
Loans as of the end of the applicable fiscal quarter has been used for the
general corporate purposes of the Borrower and its Subsidiaries, (iv) furnishing
calculations demonstrating the compliance by the Borrower of the covenants
contained in Sections 5.18, 5.19 and 5.20 hereof, and (v) attaching management's
summary of the results contained in such financial statements;
(d) simultaneously with the delivery of each set of financial statements
referred to in clause (a) above, a statement (addressed to the Agent for the
benefit of the Banks) of the firm of independent public accountants which
reported on such statements whether anything has come to their attention to
cause them to believe that any Default existed on the date of such statements;
(e) within five (5) Business Days after any officer obtains knowledge of
any Default, if such Default is then continuing, a certificate of Borrower,
signed on behalf of Borrower by the chief financial officer of the Borrower,
setting forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
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(f) promptly upon the mailing thereof to the shareholders of the Borrower
generally, copies of all financial statements, reports and proxy statements so
mailed;
(g) promptly upon the filing thereof, copies of all registration statements
(other than the exhibits thereto and any registration statements on Form S-8 or
its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their equivalents)
which the Borrower shall have filed with the Securities and Exchange Commission;
(h) if and when any member of the ERISA Group (i) gives or is required to
give notice to the PBGC of any reportable event (as defined in Section 4043 of
ERISA) with respect to any Plan which might constitute grounds for a termination
of such Plan under Title IV of ERISA, or knows that the plan administrator of
any Plan has given or is required to give notice of any such reportable event, a
copy of the notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal liability with
respect to any Multiemployer Plan under Title IV of ERISA or notice that any
Multiemployer Plan is in reorganization, is not Solvent or has been terminated,
a copy of such notice; (iii) receives notice from the PBGC under Title IV of
ERISA of its intent to terminate, impose liability (other than for premiums
under Section 4007 of ERISA) in respect of, or appoint a trustee to administer
any Plan, a copy of such notice; (iv) applies for a waiver of the minimum
funding standard under Section 412 of the Code, a copy of such application; (v)
gives notice of intent to terminate any Plan under Section 4041(c) of ERISA, a
copy of such notice and other information filed with the PBGC; (vi) gives notice
of withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) except as previously disclosed to the Banks in writing prior to
the date hereof, fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could result
in the imposition of a lien or the posting of a bond or other security under
ERISA or the Code, a certificate of Borrower, signed on behalf of Borrower by
the chief financial officer, the chief accounting officer or the treasurer of
the Borrower, setting forth details as to such occurrence and the action, if
any, which the Borrower or any applicable member of the ERISA Group is required
or proposes;
(i) as soon as possible after any officer of the Borrower obtains knowledge
of the commencement of, or of a material threat of the commencement of, an
action, suit or proceeding against the Borrower or any of its Subsidiaries
before any court or arbitrator or any governmental body, agency or official in
which there is a reasonable likelihood of an adverse decision which would after
the application of applicable insurance materially and adversely affect the
business, financial position or results of operations of the Borrower and its
Consolidated Subsidiaries, in each case considered as a whole, or which in any
manner questions the validity of any Financing Document, a written report
informing the Banks in reasonable detail of the nature of such pending or
threatened action, suit or proceeding;
(j) from time to time such additional information regarding the financial
position or business of the Borrower and its Subsidiaries, as the Agent or any
Bank may reasonably request; and
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(k) simultaneously with the delivery of each set of statements referred to
in clauses (a) and (b) above, a detailed listing of all current Buy-Sell
Agreements, setting forth the parties, the facility to be acquired and the
purchase price, together with a statement of all Buy-Sell Agreements that have
been consummated since the date of the last statement.
For purposes of the foregoing:
(i) during any period when generally accepted accounting principles or
related auditing standards requires that a Specified Affiliate of the
Borrower be accounted for as a Subsidiary for purposes of the
consolidated financial statements of the Borrower and its Subsidiaries,
the term Subsidiary shall include a Specified Affiliate of the Borrower
for purposes of paragraphs (a) and (b) above; and
(ii) during any period when generally accepted accounting
principles or related auditing standards does not require that a
Specified Affiliate of the Borrower be accounted for as a Subsidiary
for purposes of the consolidated financial statements of the Borrower
and its Subsidiaries, the terms Subsidiary shall not include a
Specified Affiliate of the Borrower for purposes of paragraphs (a) and
(b) above and, if the Borrower shall have any Specified Affiliates
during any period covered by the financial statements delivered
pursuant to paragraphs (a) or (b) above, the Borrower shall deliver (A)
financial statements of the character specified in paragraphs (a) and
(b) above for such Specified Affiliates within the time periods set
forth in paragraphs (a) and (b) above, and (B) on a combined basis,
financial statements of the character specified in paragraphs (a) and
(b) above for the Borrower, its Subsidiaries and such Specified
Affiliates accompanied by the opinions and certificates specified in
paragraphs (b) and (c) above within the time periods set forth in
paragraphs (a), (b) and (c) above.
SECTION 5.02 Payment of Obligations. The Borrower will pay and discharge,
and will cause each of its Subsidiaries to pay and discharge, at or before
maturity, or prior to expiration of applicable notice, grace and curative
periods, all their respective material obligations and liabilities, including,
without limitation, tax liabilities, except where the same may be contested in
good faith by appropriate proceedings, and will maintain, and will cause each of
its Subsidiaries to maintain, in accordance with generally accepted accounting
principles, appropriate reserves for the accrual of any of the same.
SECTION 5.03 Maintenance of Property; Insurance.
(a) The Borrower will keep, and will cause each of its Subsidiaries to
keep, or will in the ordinary course of business cause the tenants of respective
properties to keep, all property materially useful and necessary in its business
in good working order and condition, ordinary wear and tear excepted.
(b) The Borrower will maintain, and will cause each of its Subsidiaries to
maintain, with financially sound and responsible insurance companies, insurance
on all their respective properties in at least such amounts and against such
risks (and with such risk retention) as are usually insured against in the same
general area by companies of established repute engaged in the same or a similar
business, and will furnish to the Banks, upon request from the Agent,
information presented in reasonable detail as to the insurance so carried. The
insurance described in this Section 5.03 may be carried by the tenants under the
respective tenant leases of such properties in lieu of by Borrower or its
Subsidiaries.
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SECTION 5.04 Conduct of Business and Maintenance of Existence. Except as
contemplated otherwise by the Investment Policy, the Borrower will continue, and
will cause each Subsidiary to continue, to engage in business of the same
general type as now conducted by the Borrower and each of its Subsidiaries, and
will preserve, renew and keep in full force and effect, and will cause each of
its Subsidiaries to preserve, renew and keep in full force and effect their
respective corporate existences and, except for any such rights, privileges and
franchises the failure to preserve which would not in the aggregate have a
material adverse effect on the Borrower and its Subsidiaries or the ability of
the Borrower or any Subsidiary to perform any of their respective obligations
under any Financing Document, their respective rights, privileges and franchises
necessary or desirable in the normal conduct of business; provided that nothing
in this Section 5.04 shall prohibit (a) the merger of a Subsidiary of the
Borrower into the Borrower or the merger or consolidation of any Subsidiary of
the Borrower with or into another Person if the corporation surviving such
consolidation or merger is a Wholly-Owned Consolidated Subsidiary of the
Borrower and if, in each case, after giving effect thereto, no Default shall
have occurred and be continuing or (b) the termination of the corporate
existence of any Subsidiary of the Borrower or the discontinuation of any line
of business of the Borrower or any of its Subsidiaries if the Borrower in good
faith determines that such termination is in the best interest of the Borrower
or such Subsidiary, as the case may be, and is not materially disadvantageous to
the Banks.
SECTION 5.05 Compliance with Laws. The Borrower will comply, and cause each
of its Subsidiaries to comply, in all material respects with all applicable
laws, ordinances, rules, regulations, and requirements of governmental
authorities (including, without limitation, Environmental Laws and ERISA and the
rules and regulations thereunder) the failure to comply with which would have a
material adverse effect on the Borrower and its Subsidiaries or their ability to
perform any of its obligations under any Financing Document, except where the
necessity of compliance therewith is contested in good faith by appropriate
proceedings.
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SECTION 5.06 Inspection of Property, Books and Records. The Borrower will
keep, and will cause each of its Subsidiaries to keep, proper books of record
and account in which full, true and correct entries shall be made of all
material dealings and transactions in relation to its business and activities;
and, except to the extent prohibited by applicable law, rule, regulations or
orders, will permit, and will cause each of its Subsidiaries to permit,
representatives of any Bank at such Bank's expense (which expense shall not be
subject to reimbursement by Borrower hereunder) to visit and inspect any of
their respective properties (subject to the rights of tenants in possession
thereof and to any limitations on the inspection rights of Borrower in
connection therewith), to examine and make abstracts from any of their
respective books and records and to discuss their respective affairs, finances
and accounts with their respective officers, employees and independent public
accountants, upon reasonable prior written notice to Borrower, all at such
reasonable times and as often as may reasonably be desired.
SECTION 5.07 Negative Pledge. The Borrower will not nor will it permit any
of its Subsidiaries to create, assume or suffer to exist any lien on any asset
now owned or hereafter acquired by it, except:
(a) (i) Liens existing on the date of this Credit Agreement securing Debt
outstanding on such date and identified on Schedule 5.07 and (ii) Liens created
by and existing under the Financing Documents;
(b) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's, statutory banker's or other like Liens arising in the ordinary
course of business and which are not overdue for a period of more than thirty
(30) days or which are being contested in good faith by appropriate proceedings;
(c) Liens for taxes, assessments or other governmental charges not yet due
or which are being contested in good faith and by appropriate proceedings;
(d) Liens imposed by law on pledges or deposits in connection with
workmen's compensation, unemployment insurance and other social security
legislation which do not interfere with or adversely affect in any material
respect the or conduct of the business of the Borrower or any of its
Subsidiaries;
(e) deposits to secure the performance of bids, tenders, trade or
government contracts (other than for borrowed money), leases, licenses,
statutory obligations, surety bonds (other than in relation to judgments),
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(f) easements, rights-of-way, zoning and similar restrictions and other
encumbrances or title defects incurred, or leases or subleases granted to others
which are in existence as of the date hereof, or if not in existence as of the
date hereof, do not interfere with or adversely affect in any material respect
the ordinary conduct of the business of the Borrower or any of its Subsidiaries;
(g) Liens securing reimbursement obligations with respect to trade letters
of credit issued in the ordinary course of business; provided that such Liens
only attach to the assets being acquired with the proceeds of such letters of
credit;
(h) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien, to the extent such Lien is permitted
by any of the foregoing clauses of this Section; provided that such Debt is not
increased and is not secured by any additional assets;
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(i) Liens on properties securing security deposits of tenants, provided
that the aggregate amount of such security deposits secured by such Liens shall
not exceed 5% of Consolidated Total Capital at any time outstanding;
(j) Liens not otherwise permitted by the foregoing clauses of this Section
securing Debt in an amount no greater than $1,000,000.00 at any time
outstanding;
(k) Liens securing Debt in an aggregate amount not to exceed $25,000,000.00
(i) encumbering assets directly or indirectly purchased by Borrower or any
Subsidiary in any transaction relating to or arising from a Buy-Sell Agreement
or Securities Transaction or other transaction after the date hereof; or (ii)
encumbering real property acquired by Borrower or any Subsidiary after the date
hereof; provided, however, any Lien on any of such assets or real property shall
only secure the Debt assumed or taken subject to in connection with the
acquisition thereof; and
(l) Liens securing Debt of any Subsidiary or Specified Affiliate to the
Borrower.
SECTION 5.08 Consolidations, Mergers and Sales of Assets.
(a) The Borrower will not, nor will it permit any of its Subsidiaries to,
consolidate or merge with or into any other Person except as permitted in
accordance with Section 5.04.
(b) The Borrower will not, nor will it permit any of its Subsidiaries to,
make any Asset Sale except the sale of any asset listed in Schedule 5.08 hereof,
unless in connection with such Asset Sale, Borrower or such Subsidiary makes
provision for the Mandatory Prepayments described in Section 2.07.
SECTION 5.09 Creation of Subsidiaries. The Borrower will not, nor will it
permit any of its Subsidiaries to, create any Subsidiary except for the creation
of a wholly owned Subsidiary of the Borrower or a Specified Affiliate provided
that (i) such Subsidiary or Specified Affiliate is organized under the laws of a
jurisdiction within the United States of America, (ii) such Specified Affiliate
and such Subsidiary, if such Subsidiary is a Material Subsidiary, executes at
the time of its creation a guaranty in favor of the Banks in the form of Exhibit
B attached hereto, and (iii) no Default exists immediately prior to or after the
creation of such Subsidiary or Specified Affiliate.
SECTION 5.10 [lntentionally Omitted].
SECTION 5.11 Transactions with Affiliates. The Borrower will not and will
not permit any Subsidiary to enter into directly or indirectly any material
transaction or material group of related transactions (including without
limitation the purchase, lease, sale or exchange of properties of any kind or
the rendering of any service) with any Affiliate (other than the Borrower, any
Wholly-Owned Subsidiary or Specified Affiliate), except in the ordinary course
and pursuant to the reasonable requirements of the Borrower's or such
Subsidiary's business and upon fair and reasonable terms no less favorable to
the Borrower or such Subsidiary than would be obtainable in a comparable
arm's-length transaction with a Person not an Affiliate.
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SECTION 5.12 Use of Proceeds. The proceeds of the Loans will be used (i) to
finance the acquisition of healthcare real estate properties by the Borrower and
its Subsidiaries and (ii) to finance the general corporate purposes of the
Borrower and its Subsidiaries; provided, however, no more than $10,000,000.00 of
the proceeds of the Loans at any one time outstanding shall be used for the
general corporate purposes of the Borrower and its Subsidiaries.
SECTION 5.13 Constitutional Documents. Subject to changes, including any
dissolutions permitted pursuant to this Credit Agreement: (i) the Borrower will
not, nor will it permit any of its Subsidiaries to, amend its Constitutional
Documents in any manner which could materially adversely affect the rights of
the Banks under the Financing Documents or their ability to enforce the same;
and (ii) the Borrower will not amend its Constitutional Documents in a manner
which would permit a single shareholder (as determined for purposes hereof
pursuant to the attribution provisions of Section 544 of the Code as modified by
Section 856 of the Code) to own more than thirty percent (30%) of the
outstanding stock in Borrower.
SECTION 5.14 Investments. The Borrower shall not make, nor shall it permit
any of its Subsidiaries to make, any Investment in any other Person except for
Investments made in accordance Borrowers Investment Policy, except that the
Borrower may make and own Investments in (i) marketable direct obligations
issued or unconditionally guaranteed by the Government or issued by any agency
thereof and backed by the full faith and credit of the United States of America,
in each case maturing within one (1) year from the date of acquisition thereof,
(ii) marketable direct 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 (1) year from the date of
acquisition thereof and, at the time of acquisition, having the highest rating
obtainable from either S&P or Moody's, (iii) commercial paper maturing no more
than one (1) year from the date of creation thereof and, at the time of
acquisition, having a rating in one of the two highest rating categories of S&P
or Moody's, (iv) certificates of deposit, bankers acceptances or time deposits
maturing within one (1) year from the date of acquisition thereof issued by any
of the Banks, (v) certificates of deposit or bankers acceptances maturing within
one (1) year from the date of acquisition thereof or time deposits maturing
within thirty (30) days from the date of acquisition thereof issued by other
commercial banks organized under the laws of the United States of America or any
state thereof or the District of Columbia, each having shareholders' equity of
not less than $600,000,000, or (vi) repurchase agreements with commercial banks
or with securities dealers, in any case fully secured as to principal and
interests by obligations described in clauses (i)-(v) of this Section.
SECTION 5.15 Prepayments of Debt. The Borrower shall not, nor shall it
permit any of its Subsidiaries to, prepay, redeem, defease (whether actually or
in substance) or purchase in any manner (or deposit or set aside funds for the
purpose of any of the foregoing), make any payment in respect of principal of,
or make any payment in respect of interest on, or permit any of its Subsidiaries
to prepay, redeem, or purchase in an manner, make any payment in respect of
principal of, or make any payment in respect of interest on, any Debt of the
Borrower or any of its Subsidiaries except for (i) payments of principal
interest or other sums required in accordance with the terms of the instruments
governing such Debt, (ii) payments with respect to Debt under this Credit
Agreement or any of the Financing Documents, (iii) payments with respect to Debt
assumed or taken subject to in connection with any Securities Transaction or
asset purchase after the date hereof, and (iv) payments with respect to Debt of
any Subsidiary to the Borrower.
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SECTION 5.16 Capital Expenditures. The Borrower shall not, nor shall it
permit any of its Subsidiaries to, make any capital expenditures in an aggregate
amount in excess of $2,500,000.00 per fiscal year; provided, however (i) capital
expenditures incurred to acquire, expand or improve facilities shall not be
deemed to be capital expenditures for purposes of the foregoing requirement, and
(ii) capital expenditures required pursuant to any lease or other contract shall
not be deemed to be capital expenditures for purposes of the foregoing
requirement.
SECTION 5.17 Repurchase, Retirement or Redemption of Capital Stock;
Dividends. The Borrower will not, nor will it permit any of its Subsidiaries
(other than its wholly-owned Subsidiaries or the Specified Affiliates) to,
repurchase, retire or redeem any of its capital stock. The Borrower will not pay
dividends on any of its stock in any fiscal year in excess of ninety five
percent (95%) of Funds From Operations for such fiscal year.
SECTION 5.18 Ratio of Consolidated Funded Indebtedness to Consolidated
Total Capital. The Borrower will not permit its ratio of Consolidated Funded
Indebtedness to Consolidated Total Capital to exceed (i) .45 to 1.0 as of the
last day of the fiscal quarter ending December 31, 1996, (ii) .45 to 1.0 as of
the last day of the fiscal quarter ending March 31, 1997 (or .40 to 1.0 as of
the last day of such fiscal quarter if the Borrower has issued additional equity
of at least $50,000,000 prior to March 31, 1997) and (iii) .40 to 1.0 as of the
last day of each fiscal quarter ending thereafter.
SECTION 5.19 Consolidated Tangible Net Worth. The Borrower shall maintain
Consolidated Tangible Net Worth at all times of at least $200,000,000.00;
provided, however, such amount shall be increased by an amount equal to (a)
ninety-five percent (95%) of the net proceeds received by the Borrower on
account of any additional equity offerings made subsequent to the Closing Date;
and (b) ninety-five percent (95%) of the net proceeds received by the Borrower
on account of any Securities Transaction completed subsequent to the Closing
Date.
SECTION 5.20 Consolidated Interest Coverage Ratio. The Borrower will
maintain a ratio of Consolidated EBIT to Consolidated Interest Expense of not
less than 3.0 to 1.0 as of the last day of each fiscal quarter (computed for the
four (4) quarterly periods then ending).
SECTION 5.21 Material Subsidiaries. The Borrower will give the Agent prompt
notice of any Subsidiary of the Borrower which to the Borrower's knowledge
becomes a Material Subsidiary subsequent to the Closing Date and will take the
following steps with respect to each such Material Subsidiary: (i) the Borrower
will cause each such Material Subsidiary to execute a guaranty in favor of the
Banks in the form of Exhibit B attached hereto and (ii) the Borrower will pay
all reasonable costs and expenses incurred in connection with the requirements
set forth in this Section 5.21. The Borrower will satisfy the foregoing
requirements within thirty (30) days after any Subsidiary becomes a Material
Subsidiary.
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SECTION 5.22 Specified Affiliates. The Borrower will take the following
steps with respect to each Specified Affiliate: (i) the Borrower will cause each
Specified Affiliate to execute a guaranty in favor of the Banks in the form of
Exhibit B attached hereto and (ii) the Borrower will pay all reasonable costs
and expenses incurred in connection with the requirements set forth in this
Section 5.22. The Borrower will satisfy the foregoing requirements within thirty
(30) days after the creation of any Specified Affiliate.
SECTION 5.23 REIT Status. The Borrower will meet the requirements of
Section 857(a) of the Code and regulations thereunder.
SECTION 5.24 Leases. The Borrower will not modify or amend any lease where
the Borrower is the lessor thereunder if such modification or amendment would
have a material adverse effect on the Borrower.
SECTION 5.25 Buy-Sell Agreements. The Borrower shall not, nor permit any of
its Subsidiaries to, enter Buy-Sell Agreements creating obligations in excess of
$25,000,000 in the aggregate at any one time outstanding.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01 Events of Default. The occurrence of any of the following
events shall constitute an event of default hereunder (individually, an Event of
Default and collectively the Events of Default):
(a) The Borrower shall fail to pay (i) when due any principal of any Loan
or (ii) within five (5) days after the same shall become due, any interest on
any Loan or any fees or any other amount payable hereunder;
(b) The Borrower shall fail to observe or perform any covenant contained in
Section 5.01 hereof for thirty (30) days after written notice of such failure
shall have been given to the Borrower by the Agent or any Bank;
(c) Any Obligor shall fail to observe or perform any covenant or agreement
contained in any Financing Document (other than those covered by clause (a), (b)
or (c) above) for thirty (30) days after written notice of such failure shall
have been given to the Borrower by the Agent or any Bank;
(d) Any representation, warranty, certification or statement made or deemed
made by any Obligor in any Financing Document or in any certificate, financial
statement or other document delivered pursuant thereto shall prove to have been
incorrect in any material respect when made (or deemed made) and such
representation, warranty, certification or statement shall remain incorrect for
thirty (30) days after written notice of such failure shall have been given to
the Borrower by the Agent or any Bank;
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(e) The Borrower or any of its Subsidiaries shall fail to make any payment
in respect of any Debt in an aggregate amount in excess of $2,500,000 when due
or within any applicable grace period;
(f) Any event or condition shall occur which results in the acceleration of
the maturity of any Debt of Borrower or any Subsidiary in an aggregate amount in
excess of $2,500,000.00 or enables the holder of such Debt or any Person acting
on such holder's behalf to accelerate the maturity thereof;
(g) The Borrower or any of its Material Subsidiaries shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due, or shall take any corporate action to authorize any of the
foregoing;
(h) An involuntary case or other proceeding shall be commenced against the
Borrower or any of its Material Subsidiaries seeking liquidation, reorganization
or other relief with respect to it or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of thirty (30) days; or an
order for relief shall be entered against the Borrower or any of its Material
Subsidiaries under the federal bankruptcy laws as now or hereafter in effect;
(i) The Borrower or any Material Subsidiary shall admit in writing its
inability to pay its debts as and when they fall due;
(j) Except as previously disclosed to the Banks in writing prior to the
date hereof: any member of the ERISA Group shall fail to pay when due an amount
or amounts aggregating in excess of $500,000.00 which it shall have become
liable to pay under Title IV of ERISA; or notice of intent to terminate any Plan
which is then a Material Plan shall be filed under Title IV of ERISA by any
member of the ERISA Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to
terminate, to impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or to cause a trustee to be appointed to administer any
Plan which is then a Material Plan; or a condition shall exist by reason of
which the PBGC would be entitled to obtain a decree adjudicating that any Plan
which is then a Material Plan must be terminated; or there shall occur a
complete or partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could cause one or more members of the ERISA Group to incur a current payment
obligation, that is, an obligation or series of obligations payable within
twelve (12) months, in excess of $500,000.00;
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(k) An uninsured judgment or order for the payment of money in excess of
$500,000.00 shall be rendered against the Borrower or any of its Subsidiaries
and such judgment or order shall continue unsatisfied and unstayed for a period
of thirty (30) days;
(l) (i) The voting interests in any Specified Affiliate shall be held by a
Person other than a director, officer or employee of the Borrower, (ii) the
Borrower shall fail to own substantially all of the economic interest in any
Specified Affiliate and the remainder of such economic interest shall be held by
a Person other than directors, officers and/or employees or (iii) a Specified
Affiliate shall engage in any of the actions or activities that are limited or
restricted by Article 5 hereof.
then, and in every such event, the Agent shall during the continuance of such
Event of Default (i) if requested by the Majority Banks, by notice to the
Borrower terminate the Commitments, (ii) if requested by the Majority Banks, by
notice to the Borrower declare the Notes (together with accrued interest
thereon) and all other amounts payable by the Borrower hereunder to be, and such
Notes and amounts shall thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower, and (iii) take such other actions as are directed
by the Majority Banks; provided that in the case of any Event of Acceleration,
without any notice to any Obligor or any other act by the Agent or any Bank, the
Commitments shall thereupon terminate and the Notes (together with accrued
interest thereon) shall become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower. Subject to the request or direction of the Majority Banks as
provided above, Agent shall have the exclusive right to enforce the remedies
available under this Credit Agreement during the continuance of any Event of
Default hereunder. No Bank, acting alone, or with the other Banks, shall have
the right to enforce such remedies.
ARTICLE VII
THE AGENT
SECTION 7.01 Appointment and Authorization. Each Bank appoints the Agent to
act as its agent in connection herewith and each of the other Financing
Documents.
SECTION 7.02 Agents and Affiliates. NationsBank shall have the same rights
and powers under this Credit Agreement as any other Bank and may exercise or
refrain from exercising the same as though it were not the Agent, and
NationsBank and each of its affiliates may accept deposits from, lend money to,
and generally engage in any kind of business with the Borrower, any of its
Subsidiaries and any of its or their respective Affiliates as if it were not the
Agent.
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SECTION 7.03 Action by Agent. The obligations of the Agent under the
Financing Documents are only those expressly set forth herein with respect to
it. Without limiting the generality of the foregoing the Agent shall not be
required to take any action with respect to any Default or Event of Default,
except as expressly provided in Article VI.
SECTION 7.04 Consultation with Experts. The Agent may consult with legal
counsel (who may be counsel for the Borrower), independent public accountants
and other experts selected by the Agent and shall not be liable for any action
taken or omitted to be taken by the Agent in good faith in accordance with the
advice of such counsel, accountants or experts.
SECTION 7.05 Liability of Agent. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
not taken by it in connection with the Financing Documents (a) with the consent
or at the request of the Majority Banks; or (b) in the absence of gross
negligence or misconduct of the Agent. Neither the Agent nor any of its
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into or verify (i) any statement, warranty or
representation made in connection with any Financing Document; (ii) the
performance or observance of any of the covenants or agreements of the Borrower,
(iii) the satisfaction of any condition specified in Article III, except receipt
of items required to be delivered to the Agent; or (iv) the validity,
effectiveness or genuineness of any Financing Document or any other instrument
or writing furnished in connection therewith. The Agent shall not incur any
liability by acting in reliance upon any notice, consent, certificate, statement
or other writing (which may be a bank wire, facsimile, telex or similar writing)
believed by it to be genuine or to be signed by the proper party or parties.
SECTION 7.06 Indemnification. Each Bank shall, ratably in accordance with
its Commitment, indemnify the Agent (to the extent not reimbursed by the
Borrower) against any cost, expense (including reasonable counsel fees and
disbursements), claim, demand, action, loss or liability (except such as result
from the Agent's gross negligence or willful misconduct) that the Agent may
suffer or incur in connection with the Financing Documents or any action taken
or omitted by the Agent thereunder.
SECTION 7.07 Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Credit Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agent or
any other Bank, and 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 any action under the Financing Documents.
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SECTION 7.08 Successor Agent. The Agent may resign at any time by giving
thirty (30) days prior written notice thereof to the Banks and the Borrower. The
Majority Banks may remove the Agent at any time by giving thirty (30) days prior
written notice to the Agent, the other Banks and the Borrower. Upon any such
resignation or removal of the Agent, the Majority Banks shall have the right to
appoint a successor Agent, with the consent of the Borrower (which consent shall
not unreasonably be withheld, but which may in any event be withheld if (a) such
proposed successor Agent fails to deliver evidence reasonably satisfactory to
the Borrower that such proposed successor Agent is not a Foreign Person, (b) the
Borrower in good faith concludes that the appointment of such proposed successor
Agent could result in a violation of any law, rule, guideline or regulation, or
a violation of, revocation of, failure to renew or modification of any order,
facility security clearance or permit or (c) the credit standing of the proposed
successor Agent is lower than that of the preceding Agent); provided, however,
such consent of the Borrower shall not be required upon the occurrence and
during the continuance of an Event of Default. If no successor Agent shall have
been so appointed by the Majority Banks, and shall have accepted such
appointment, within thirty (30) days after the retiring Agent gives notice of
resignation, then the retiring Agent may, on behalf of the Banks and with the
consent of the Borrower (which consent shall not be unreasonably withheld except
as aforesaid), appoint a successor Agent, which shall have core capital of at
least $500,000,000. Upon the acceptance of its appointment as Agent hereunder by
a successor Agent the retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent. In the event of
any successor agent to NationsBank, (i) all references herein to NationsBank
shall be deemed to refer to such successor agent and (ii) all references to
Charlotte, North Carolina shall be deemed to mean the city in which the
successor Agent's headquarters is located.
SECTION 7.09 Agent's Fee. The Borrower shall pay to the Agent for its own
account fees in the amounts and at the time previously agreed upon in writing
between the Borrower and the Agent.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01 Basis for Determining Interest Rate Inadequate or Unfair. If
on or prior to the first day of any Interest Period for any Eurodollar Loan:
(a) the Agent is advised by the Eurodollar Reference Bank that deposits in
Dollars (in the applicable amounts) are not being offered to the Eurodollar
Reference Bank in the relevant market for such Interest Period, or
(b) the Majority Banks advise the Agent that the Adjusted Eurodollar Rate
as determined by the Agent will not adequately and fairly reflect the cost to
such Banks of funding their Eurodollar Loans for such Interest Period, the Agent
shall forthwith give notice thereof to the Borrower and the Banks, whereupon
until the Agent notifies the Borrower that the circumstances giving rise to such
suspension no longer exist, (i) the obligations of the Banks to make new
Eurodollar Loans or to convert outstanding Loans into Eurodollar Loans shall be
suspended and (ii) each outstanding Eurodollar Loan, as the case may be, shall
be converted into a Base Rate Loan on the last day of the then current Interest
Period applicable thereto. Unless the Borrower notifies the Agent at least one
(1) Business Day before the date of any Eurodollar Borrowing for which a Notice
of Borrowing has previously been given that it elects not to borrow on such
date, such Borrowing shall instead be made as a Base Rate Borrowing.
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SECTION 8.02 Illegality. If, on or after the date of this Credit Agreement,
the adoption of any applicable law, rule or regulation, 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 or compliance by any Bank (or its
Eurodollar Lending Office) with any request or directive (whether or not having
the force of law) of any such authority, central bank or comparable agency shall
make it unlawful or impossible for any Bank (or its Eurodollar Lending Office)
to make, maintain or fund its Eurodollar Loans and such Bank shall so notify the
Agent, the Agent shall forthwith give notice thereof to the other Banks and the
Borrower, whereupon until such Bank notifies the Borrower and the Agent that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Bank to make new Eurodollar Loans, or to convert outstanding Loans into
Eurodollar Loans, shall be suspended. Before giving any notice to the Agent
pursuant to this Section, such Bank shall designate a different Eurodollar
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. If such notice is given, each Eurodollar Loan of such Bank then
outstanding shall be converted to a Base Rate Loan either (a) on the last day of
the then current Interest Period applicable to such Eurodollar Loan if such Bank
may lawfully continue to maintain and fund such Loan to such day or (b)
immediately if such Bank shall determine that it may not lawfully continue to
maintain and fund such Loan to such day.
SECTION 8.03 Increased Cost and Reduced Return.
(a) If on or after the date hereof, the adoption of any applicable law,
rule or regulation, 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, or
compliance by any Bank (or its Eurodollar Lending Office) with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency:
(i) shall subject any Bank (or its Applicable Lending Office) to any
tax, duty or other charge with respect to its Eurodollar Loans, or its
obligation to make Eurodollar Loans, or shall change the basis of
taxation of payments to any Bank (or its Eurodollar Lending Office) of
the principal of or interest on its Eurodollar Loans or any other
amounts due under this Credit Agreement in respect of its
Eurodollar Loans or its obligation to make Eurodollar Loans (except for
changes in the rate of tax imposed on, or contemplated with respect to,
the income of such Bank or its Eurodollar Lending Office or changes
generally affecting the manner in which the income of such Bank or its
Applicable Lending Office is subjected to taxation, by the jurisdiction
in which such Bank's principal executive office or Eurodollar Lending
Office is located or the jurisdiction under the laws of which such Bank
is organized); or
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(ii) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding with respect to any Eurodollar Loan any such
requirement included in an applicable Eurodollar Reserve Percentage)
against assets of, deposits with or for the account of, or credit
extended by,any Bank (or its Applicable Lending Office) or shall impose
on any Bank (or its Applicable Lending Office) or on the United States
market for certificates of deposit or the London interbank market any
other condition affecting its Eurodollar Loans, its Note or its
obligation to make Eurodollar Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Eurodollar Lending Office) of making or maintaining any Eurodollar Loan, or
to reduce the amount of any sum received or receivable by such Bank (or its
Eurodollar Lending Office) under this Credit Agreement or under its Note with
respect thereto, by an amount deemed by such Bank to be material (except to the
extent that such increased cost or reduction of a sum received or receivable is
attributable to such Bank's failure to perform any of its obligations under
Section 2.12 or is otherwise attributable to any act or action of such Bank
other than the loaning of funds under this Credit Agreement), then, within
fifteen (15) days after demand by such Bank (with a copy to the Agent)
accompanied by a certificate setting forth in reasonable detail its calculation
of such increased cost or reduction, the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such increased
cost or reduction.
(b) If any Bank shall have determined that, after the date hereof, the
adoption or change of any applicable law, rule, guideline or regulation
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 or 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
of such Bank (or its Parent) as a consequence of such Bank's obligations
hereunder to a level below that which such Bank (or its Parent) could have
achieved but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by an amount deemed
by such Bank to be material then from time to time, within fifteen (15) days
after demand by such Bank (with a copy to the Agent) accompanied by a
certificate setting forth in reasonable detail its calculation of such
reduction, the Borrower shall pay such Bank such additional amount or amounts as
will compensate such Bank (or its Parent) for such reduction.
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(c) Each Bank will promptly notify the Borrower and the Agent of any event
of which it has knowledge, occurring after the date hereof, which will entitle
such Bank to compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section and setting forth in reasonable detail
its calculation of the additional amount or amounts to be paid to it hereunder
shall be conclusive in the absence of manifest error. In determining such
amount, such Bank may use any reasonable averaging and attribution methods.
Failure on the part of any Bank to demand compensation under subsection (a) or
(b) with respect to any period shall not constitute a waiver of such Bank's
right to demand compensation with respect to such period or any other period;
provided, however, that no Bank shall be entitled to compensation for the period
which is more than thirty (30) days prior to the date the Borrower receives the
certificate described in this subsection (c) via facsimile. Each Bank agrees
that it will send the certificate described above via facsimile to insure
immediate receipt by the Borrower.
SECTION 8.04 Base Rate Loans Substituted for Affected Eurodollar Loans. If
(i) the obligation of any Bank to make or maintain Eurodollar Loans has been
suspended pursuant to Section 8.02 or (ii) any Bank has demanded compensation
under Section 8.03 and the Borrower shall by at least five (5) Eurodollar
Business Days' prior notice to such Bank through the Agent have elected that the
provisions of this Section shall apply to such Bank, then, unless and until such
Bank notifies the Borrower that the circumstances giving rise to such suspension
or demand for compensation no longer apply:
(a) all Loans which would otherwise be made by such Bank as (or continued
as or converted into) Eurodollar Loans shall instead be Base Rate Loans (on
which interest and principal shall be payable contemporaneously with the related
Eurodollar Loans of the other Banks), and
(b) after each of its Eurodollar Loans has been repaid (or converted to a
Base Rate Loan), all payments of principal which would otherwise be applied to
repay such Eurodollar Loans shall be applied to repay its Base Rate Loans
instead.
If such Bank notifies the Borrower that the circumstances giving rise to such
notice no longer apply, unless Borrower elects otherwise, the principal amount
of each such Base Rate Loan shall be converted into a Eurodollar Loan on the
first day of the next succeeding Interest Period applicable to the related
Eurodollar Loan of the other Banks.
SECTION 8.05 Substitution of Bank. If (i) the obligation of any Bank to
make Eurodollar Loans has been suspended pursuant to Section 8.02 or (ii) any
Bank has demanded compensation under Section 8.03, the Borrower shall have the
right, with the assistance of the Agent, to seek a substitute bank or banks
reasonably satisfactory to the Agent and the Borrower (which may be one or more
of the Banks) to purchase the Note of such Bank and the interest of such Bank in
the Unused Fees and to assume the Commitment of such Bank for a purchase price
equal to all amounts payable to such Bank hereunder and under the Note, and the
Borrower, the Agent, such Bank and such substitute bank or banks shall execute
and deliver an appropriately completed Assignment and Assumption Agreement
pursuant to Section 9.06(c) hereof to effect the assignment of rights to and
assumption of obligations by such substitute bank or banks.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including bank wire, telex, facsimile
transmission or similar writing) and shall be given to such party: (a) at its
address, facsimile number or telex number set forth on the signature pages
hereof (b) at such other address, facsimile number or telex number as such party
may hereafter specify for the purpose of notice to the Agent and the Borrower.
Each such notice, request or other communication shall be effective (i) if given
by telex, when such telex is transmitted to the telex number specified in or
pursuant to this Section and the appropriate answerback is received, (ii) if
given by mail, 72 hours after such communication is deposited in the mails with
first class postage prepaid, addressed as aforesaid or (iii) if given by any
other means, when delivered at the address specified in or pursuant to this
Section; provided that notices to the Agent or the Borrower or any Bank under
Article II or Article VIII shall not be effective until received.
SECTION 9.02 No Waivers. No failure or delay by the Agent or any Bank in
exercising any right, power or privilege hereunder or under any Note shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.03 Expenses.
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses of the
Agent associated with the preparation and due diligence of the Loans, including
reasonable fees and disbursements of special counsel for the Agent (but
excluding administration and syndication costs), in connection with any waiver
or consent requested by Borrower hereunder or any amendment hereof requested by
Borrower or any Default hereunder, any waiver or consent hereunder or any
amendment hereof or any Default or alleged Default hereunder and (ii) if an
Event of Default occurs, all reasonable out-of-pocket expenses incurred by the
Agent and each Bank, including reasonable fees and disbursements of counsel in
connection with such Event of Default and collection, bankruptcy, insolvency and
other enforcement proceedings resulting therefrom. The Borrower shall also pay
up to $2,500.00 of the attorneys' fees of First Tennessee Bank National
Association and AmSouth Bank of Alabama incurred in connection with the closing
of the transactions contemplated hereby.
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(b) The Borrower shall indemnify and defend the Agent and each other Bank
and their respective directors, officers, agents, employees, Subsidiaries and
Affiliates (the Indemnified Parties) from, and hold each of them harmless
against any and all losses, liabilities, claims, damages or expenses incurred by
any of them arising out of, by reason of or in connection with this Credit
Agreement (but excluding any such losses, liabilities, claims, damages or
expenses incurred by reason of (i) the gross negligence, willful misconduct or
breach of this Credit Agreement by the indemnitee, and/or (ii) any claim made by
Agent or any Bank against the other), including, but without limitation, amounts
paid in settlement, court costs, and fees and disbursements of no more than one
separate law firm acting as counsel for any or all of the parties indemnified
hereunder, in each case incurred in connection with any such investigation,
litigation or other proceedings; provided, that the Indemnified Parties shall be
entitled to reimbursement of the expenses of more than one separate law firm if
the Indemnified Parties, in their reasonable discretion, determine that a single
law firm would not be able to adequately represent the interests of the
Indemnified Parties in a matter. Notwithstanding the foregoing provisions of
this paragraph to the contrary, each Indemnified Party shall use its best
efforts to mitigate any losses, liabilities, claims, damages or expenses as to
which it is entitled to seek indemnity pursuant to the provisions hereof.
SECTION 9.04 Sharing of Set-Offs. Each Bank agrees that if it shall, by
exercising any right of set-off or counterclaim or otherwise, receive payment of
a proportion of the aggregate amount of principal and interest due with respect
to any Note held by it which is greater than the proportion received by any
other Bank in respect of the aggregate amount of principal and interest due with
respect to any Note held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such participation in the Notes
held by the other Banks, and such other adjustments shall be made, as may be
required so that all such payments of principal and interest with respect to the
Notes held by the Banks shall be shared by the Banks pro rata. The Borrower
agrees, to the fullest extent it may effectively do so under applicable law,
that any holder of a participation in a Note, whether or not acquired pursuant
to the foregoing arrangements, may exercise rights of set-off or counterclaim
and other rights with respect to such participation as fully as if such holder
of a participation were a direct creditor of the Borrower in the amount of such
participation.
SECTION 9.O5 Amendments and Waivers. Any provision of this Credit Agreement
or any of the other Financing Documents may be modified, amended or waived if,
but only if, such modification, amendment or waiver is in writing and is signed
by the Borrower and the Majority Banks (and, if the rights or duties of the
Agent are affected thereby, by the Agent); provided that no such modification,
amendment or waiver shall, unless signed by all the Banks, (a) increase the
Commitment of any Bank or subject any Bank to any additional obligation, (b)
reduce the principal of or rate of interest on any Loan or any fees or other
amounts payable to any Bank hereunder, (c) postpone the date fixed for any
scheduled payment of principal of or interest on any Loan or any fees hereunder
or for any scheduled reduction or termination of any Commitment, (d) change the
percentage 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 Credit
Agreement or (e) release all or substantially all of the Subsidiaries
Guarantees.
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SECTION 9.06 Successors and Assigns.
(a) The provisions of this Credit Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns, except that the Borrower may not assign or otherwise transfer any of
its rights or obligations under this Credit Agreement without the prior written
consent of all the Banks, and no Bank may assign or otherwise transfer any of
its rights or obligations under this Credit Agreement except in compliance with
this Section 9.06.
(b) Any Bank at any time may, upon prior notice to the Borrower, grant to
one or more banks or other institutions (each a Participant) participating
interests in its Commitment or any or all of its Loans. In the event of any such
grant by a Bank of a participating interest to a Participant, whether or not
upon notice to the Borrower and the Agent, such Bank shall remain responsible
for the performance of its obligations hereunder, and the Borrower and the Agent
shall continue to deal solely and directly with such Bank in connection with
such Bank's rights and obligations under this Credit 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 Borrower hereunder including, without limitation, the right
to approve any amendment, modification or waiver of any provision of the
Financing Documents; provided that such participation agreement may provide that
such Bank will not agree to any modification, amendment or waiver of this Credit
Agreement described in clause (a), (b) or (c) of Section 9.05, without the
consent of the Participant. An assignment or other transfer which is not
permitted by subsection (c) or (d) below shall be given effect for purposes of
this Credit Agreement only to the extent of a participating interest granted in
accordance with this subsection (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 (such portion to
comprise a portion of a Commitment in an aggregate amount of not less than
$5,000,000) of all of its rights and obligations under this Credit Agreement and
the Notes, and such Assignee shall assume such rights and obligations, pursuant
to an Assignment and Assumption Agreement in substantially the form of Exhibit D
hereto executed by such Assignee and such transferor Bank, with (and subject to)
the subscribed consent of the Borrower and the Agent which consent shall not be
unreasonably withheld. Upon execution and delivery of such investment and
payment by such Assignee to such transferor Bank of an amount equal to the
purchase price agreed between such transferor Bank and such Assignee, such
Assignee shall be a Bank party to this Credit 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 Borrower
shall make appropriate arrangements so that, if required, a new Note is issued
to the Assignee. In connection with any such assignment the transferor Bank
shall pay to the Agent an administrative fee for processing such assignment in
the amount of $2,500. If the Assignee is not incorporated under the laws of the
United States of America or a state thereof it shall, prior to the first date on
which interest or fees are payable hereunder for its account, deliver to the
Borrower and the Agent certification as to exemption from deduction or
withholding of any United States federal income taxes in accordance with Section
2.12.
(d) Any Bank may at any time assign all or any portion of its rights under
this Credit Agreement and its Notes to a Federal Reserve Bank. No such
assignment shall release the transferor Bank from its obligations hereunder.
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(e) The Borrower agrees that each Participant shall to the extent provided
in its participation agreement, be entitled to the benefits of Section 8.03 and
2.11 with respect to its participating interest; provided that no Participant or
other transferee of any Bank's rights shall be entitled to receive any greater
payment under Section 8.03 or 2.10 (whether individually or in aggregate with
any such payments received by such Bank) than such Bank would have been entitled
to receive with respect to the rights transferred if such rights had not been
transferred.
(f) Borrower shall not be required to pay any costs or expenses in
connection with any participation, assignment or transfer described in this
Section 9.06. No such participation or, except as provided in Section 9.06(c)
above with respect to an assignment which is consented to by Borrower,
assignment or transfer shall release any Bank from liability for its obligations
hereunder.
SECTION 9.07 Collateral. Each of the Banks represents to the Borrower, the
Agent and each of the other Banks that it in good faith is not relying upon any
Margin Stock (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in the Financing Documents.
SECTION 9.08 Governing Law; Submission to Jurisdiction. This Credit
Agreement and each Note shall be governed by and construed in accordance with
the laws of the State of North Carolina. The Borrower, Agent and each Bank
hereby submits to the nonexclusive jurisdiction of the United States District
Court of the Western District of North Carolina and of any North Carolina State
court sitting in Charlotte for purposes of all legal proceedings arising out of
or relating to this Credit Agreement or the transactions contemplated hereby.
The Borrower, Agent and each Bank irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of the venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in an inconvenient
forum.
SECTION 9.09 Counterparts; Integration; Effectiveness. This Credit
Agreement may be signed in any number of counterparts, each of which shall be an
original with the same effect as if the signatures thereto and hereto were upon
the same instrument. This Credit Agreement constitutes the entire agreement and
understanding among the parties hereto and supersedes any and all prior
agreements and understandings, oral or written, relating to the subject matter
hereof. This Credit Agreement shall become effective when the Agent shall have
received counterparts hereof signed by all of the parties hereto.
SECTION 9.10 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE AGENT AND EACH
BANK HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT, ANY FINANCING
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
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IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
HEALTHCARE REALTY TRUST
INCORPORATED
By:___________________________
Name:____________________
Title:___________________
Address:
3310 West End Avenue
Suite 400
Nashville, Tennessee 37203
Attn: Vice President Finance
Facsimile No.: (615) 269-8122
Telephone No.: (615) 269-8175
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NATIONSBANK, N.A., in its capacity as Agent and
in its individual capacity
as a Bank
By:___________________________
Name:____________________
Title:___________________
Commitment: $35,000,000.00
Percentage: 35%
Address:
One NationsBank Plaza
Fifth Floor
Nashville, Tennessee 37239
Attn: Ashley Crabtree
Facsimile No.: (615) 749-4112
Telephone No.: (615) 749-3469
AMSOUTH BANK OF ALABAMA
By:___________________________
Name:____________________
Title:___________________
Commitment: $35,000,000.00
Percentage: 35%
Address:
1900 Fifth Avenue North, Seventh Floor
Birmingham, Alabama 35203
Attn: William Page Barnes
Facsimile No.: (205) 326-4790
Telephone No.: (205) 326-4081
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FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By:___________________________
Name:____________________
Title:___________________
Commitment: $15,000,000.00
Percentage: 15%
Address:
511 Union Street
Nashville, Tennessee 37219
Attn: Lynn Spencer
Facsimile No.: (615) 734-6148
Telephone No.: (615) 734-6300
THE SUMITOMO BANK, LIMITED
By:___________________________
Name:____________________
Title:___________________
By:___________________________
Name:____________________
Title:___________________
Commitment: $15,000,000.00
Percentage: 15%
Address:
305 Peachtree Street, Suite 4420
Atlanta, Georgia 30308
Attn: Diane Rhoades
Facsimile No.: (404) 523-7983
Telephone No.: (404) 524-6544
53
EXHIBIT 10.2
GUARANTEE
THIS GUARANTEE, dated as of December 26, 1996 (the Guarantee), is given by
HR OF TEXAS, INC., a Maryland corporation; HRT OF ALABAMA, INC., an Alabama
corporation; HRT OF TENNESSEE, INC., a Tennessee corporation; HRT OF VIRGINIA,
INC., a Virginia corporation; HRT OF ROANOKE, INC., a Virginia corporation; HRT
OF FLORIDA, INC., a Florida corporation; HEALTHCARE REALTY MANAGEMENT, INC., a
Maryland corporation; DURHAM MEDICAL OFFICE BUILDING, INC., a Texas corporation;
HR ASSETS, INC., a Texas corporation; HR FUNDING, INC., a Texas corporation; and
HR CAPITAL, INC., a Texas corporation (hereinafter referred to collectively as
the Guarantors or individually as a Guarantor); in favor of
NATIONSBANK, N.A., a national banking association, in its capacity as agent
(in 20such capacity, hereinafter referred to as the Agent) for the various banks
from time to time parties to that certain Modified and Restated Credit Agreement
dated as of the date hereof (such Modified and Restated Credit Agreement as the
same may be modified or amended from time to time being hereinafter referred to
as the Credit Agreement) among Healthcare Realty Trust Incorporated, the Agent
and the Banks (capitalized terms used but not otherwise defined herein shall
have the meanings provided in the Credit Agreement);for the benefit of
HEALTHCARE REALTY TRUST INCORPORATED, a Maryland corporation (the Borrower).
RECITALS:
1. Pursuant to the Credit Agreement, the Banks have agreed, subject to
certain terms and conditions, to make available loans and letters of credit to
the Borrower.
2. Each of the Guarantors is a Material Subsidiary or Specified Affiliate
of the Borrower (as such terms are defined in the Credit Agreement).
3. As a condition precedent to executing the Credit Agreement, the Banks
have required, among other things, each of the Guarantors to guarantee all of
the Borrower's obligations arising under the Credit Agreement and the other
Financing Documents referred to therein.
NOW, THEREFORE, for and in consideration of the execution and delivery by
the Banks of the Credit Agreement, and other good and valuable consideration,
receipt whereof is hereby acknowledged, the Guarantors hereby agree as follows:
GUARANTEE - Page 1
<PAGE>
1. Guarantee of Payment. The Guarantors hereby irrevocably and
unconditionally guarantee, jointly and severally, to the Agent and the Banks the
prompt payment, when due, by acceleration or otherwise, of the Indebtedness. For
the purposes hereof Indebtedness means all indebtedness, obligations and
liabilities of the Borrower under (i) the Credit Agreement, (ii) any Note or
Notes issued by the Borrower pursuant to the Credit Agreement or (iii) any other
of the Financing Documents to which the Borrower is a party, whether such
Indebtedness is now existing or hereafter arising, due or to become due, direct
or indirect, absolute or contingent, and howsoever evidenced, held or acquired,
as such Indebtedness may be modified, extended, renewed or replaced from time to
time. The guaranty of the Guarantors as set forth in this section is a guaranty
of payment and not of collection.
Notwithstanding any provision to the contrary contained herein or in any
other of the Financing Documents, the obligations of each Guarantor hereunder
shall be limited to an aggregate amount equal to the largest amount that would
not render its obligations hereunder subject to avoidance under Section 548 of
the United States Bankruptcy Code or any comparable provisions of any applicable
state law.
2. Release of Collateral, Parties Liable, etc. Each of the Guarantors
agrees that the whole or any part of the security now or hereafter held for the
Indebtedness may be exchanged, compromised, released or surrendered from time to
time; that neither the Agent nor the Banks shall have any obligation to protect,
perfect, secure or insure any Liens now or hereafter held for the Indebtedness
or the properties subject thereto; that the time or place of payment of the
Indebtedness may be changed or extended, in whole or in part, to a time certain
or otherwise, and may be renewed or accelerated, in whole or in part; that the
Borrower may be granted indulgences generally; that any provisions of the
Financing Documents or any other documents executed in connection with this
transaction, may be modified, amended or waived; that any party liable for the
payment of the Indebtedness may be granted indulgences or released; and that any
deposit balance for the credit of the Borrower or any other party liable for the
payment of the Indebtedness or liable upon any security therefor may be
released, in whole or in part, at, before and/or after the stated, extended or
accelerated maturity of the Indebtedness, all without notice to or further
assent by the Guarantors, who shall remain bound thereon, notwithstanding any
such exchange, compromise, surrender, extension, renewal, acceleration,
modification, indulgence or release.
3. Waiver of Rights. Each of the Guarantors expressly waives: (a) notice of
acceptance of this Guarantee by the Agent and the Banks and of all extensions of
credit to the Borrower by the Agent or any Bank; (b) presentment and demand for
payment of any of the Indebtedness; (c) protest and notice of dishonor or of
default to such Guarantor or to any other party with respect to the Indebtedness
or with respect to any security therefor; (d) notice of the Agent or any Bank
obtaining, amending, substituting for, releasing, waiving or modifying any
security interest, liens, or the encumbrances now or hereafter securing the
Indebtedness, or the Agent's or any Bank's subordinating, compromising,
discharging or releasing such security interests, liens or encumbrances: (e) all
other notices to which such Guarantor might otherwise be entitled; (f) demand
for payment under this Guarantee; and (g) any right to assert against the Agent
or any Bank, as a defense, counterclaim, set-off, or cross-claim any defense
(legal or equitable), set-off, counterclaim or claim which such Guarantor may
now or hereafter have against the Agent or any Bank or the Borrower, but such
waiver shall not prevent such Guarantor from asserting against the Agent or any
Bank in a separate action, any claim, action, cause of action, or demand that
such Guarantor might have, whether or not arising out of this Guarantee.
GUARANTEE - Page 2
<PAGE>
4. Primary Liability of Guarantors. Each of the Guarantors agrees that this
Guarantee may be enforced by the Agent and the Banks without the necessity at
any time of resorting to or exhausting any other security or collateral and
without the necessity at any time of having recourse to the Notes or any
collateral now or hereafter securing the Indebtedness or otherwise, and each of
the Guarantors hereby waives the right to require the Agent and the Banks to
proceed against the Borrower or any other person (including a co-guarantor) or
to require the Agent and the Banks to pursue any other remedy or enforce any
other right. Without limiting the generality of the foregoing, each of the
Guarantors hereby specifically waives, to the extent permitted by applicable
law, the benefits of North Carolina General Statutes Sections 26-7 through 26-9,
inclusive. In addition, each of the Guarantors hereby waives and renounces any
and all rights it has or may have for subrogation, indemnity, reimbursement or
contribution against the Borrower for amounts paid under this Guarantee. This
waiver is expressly intended to prevent the existence of any claim in respect of
such subrogation, indemnity, reimbursement or contribution by a Guarantor
against the estate of the Borrower within the meaning of Section 101 of the
United States Bankruptcy Code, and to prevent such Guarantor from being deemed a
creditor of the Borrower in respect of such subrogation, indemnity,
reimbursement or contribution within the meaning of Section 547(b) of the United
States Bankruptcy Code in the event of a subsequent case involving the Borrower.
Each of the Guarantors further agrees that nothing contained herein shall
prevent the Agent or the Banks from suing on the Notes or foreclosing its
security interest in or lien on any collateral now or hereafter securing the
Indebtedness or from exercising any other rights available to the Agent or the
Banks under the Notes, or any other instrument of security if neither the
Borrower nor the Guarantors timely performs the obligations of the Borrower
thereunder, and the exercise of any of the aforesaid rights and the completion
of any foreclosure proceedings shall not constitute a discharge of any
Guarantor's obligations hereunder; it being the purpose and intent of each of
the Guarantors that such Guarantor's obligations hereunder shall be absolute,
independent and unconditional under any and all circumstances. Neither the
Guarantors' obligations under this Guarantee nor any remedy for the enforcement
thereof shall be impaired, modified, changed or released in any manner
whatsoever by an impairment, modification, change, release or limitation of the
liability of the Borrower, by reason of the Borrower's bankruptcy or insolvency
or by reason of the invalidity or unenforceability of all or any portion of the
Indebtedness. Each of the Guarantors acknowledges that the term Indebtedness as
used herein includes any payments made by the Borrower to the Agent or any Bank
and subsequently recovered by the Borrower or a trustee for the Borrower
pursuant to the Borrower's bankruptcy or insolvency and that the guaranty of
each of the Guarantors hereunder shall be reinstated to the extent of such
recovery.
5. Attorneys' Fees and Costs of Collection. If at any time or times after
the occurrence of an Event of Default the Agent or the Banks employ counsel to
pursue collection, to intervene, to sue for enforcement of the terms hereof or
of the Notes, or to file a petition, complaint, answer, motion or other pleading
in any suit or proceeding relating to this Guarantee or the Notes, then in such
event, all of the reasonable attorneys' fees relating thereto shall be an
additional liability of the Guarantors to the Agent and the Banks hereunder,
payable on demand.
GUARANTEE - Page 3
<PAGE>
6. Security Interests and Setoff. As security for such Guarantor's
obligations hereunder, each Guarantor agrees that in the event such Guarantor
fails to pay its obligations hereunder when due and payable under this
Guarantee, (a) any of such Guarantor's assets of any kind, nature or description
(including, without limitation, deposit accounts) in the possession, control or
custody of the Agent or any Bank may, without prior notice (but promptly
confirmed in writing by the Agent or such Bank, as applicable, to such
Guarantor, provided that failure to provide such written confirmation will not
affect the liabilities of such Guarantor hereunder) to such Guarantor, be
reduced to cash or the like and applied by the Agent or such Bank in reduction
or payment of such Guarantor's obligations hereunder; and (b) the Agent and each
Bank shall have the right, immediately and without further action by them, to
set off pro tanto against the Indebtedness all money owed by the Agent or such
Bank in any capacity to such Guarantor, whether or not due, and the Agent or
such Bank shall be deemed to have made a charge against any such money
immediately upon the occurrence of such obligation becoming due even though such
charge is made or entered on the books of the Agent or such Bank subsequent
thereto.
7. Term of Guarantee; Warranties. This Guarantee shall continue in full
force and effect until the Indebtedness is fully and indefeasibly paid,
performed and discharged. This Guarantee covers the Indebtedness whether
presently outstanding or arising subsequent to the date hereof including all
amounts advanced by the Agent or any Bank in stages or installments. Each
Guarantor warrants and represents to the Agent (i) that such Guarantor is a
corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation, (ii) that such Guarantor has all
corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted, (iii)
that the execution and delivery by such Guarantor of this Guarantee and the
other Financing Documents to which it is a party and the performance by such
Guarantor of its obligations hereunder and thereunder are within the corporate
power of such Guarantor, have been duly authorized by all necessary corporate
action, require no action by or in respect of, or filing with, any governmental
body, agency or official (except for any such action or filing that has been
taken and is in full force and effect) and do not contravene, or constitute a
default under, any provision of applicable law or regulation or of the
certificate of incorporation or bylaws (or other constitutional documents) of
such Guarantor or of any material agreement, judgment, injunction, order,
decree, or other material instrument binding upon such Guarantor or result in
the creation or imposition (other than pursuant to the Financing Documents) of
any Lien on any asset of such Guarantor and (iv) that this Guarantee and the
other Financing Documents to which such Guarantor is a party constitute valid
and binding agreements of such Guarantor and, when executed and delivered will
constitute valid and binding obligations of such Guarantor.
8. Further Representations and Warranties. Each Guarantor agrees that the
Agent and the Banks will have no obligation to investigate the financial
condition or affairs of the Borrower for the benefit of such Guarantor nor to
advise such Guarantor of any fact respecting, or any change in, the financial
condition or affairs of the Borrower which might come to the knowledge of the
Agent or any Bank at any time, whether or not the Agent or any Bank knows or
believes or has reason to know or believe that any such fact or change is
unknown to such Guarantor or might (or does) materially increase the risk of
such Guarantor as guarantor or might (or would) affect the willingness of such
Guarantor to continue as guarantor with respect to the Indebtedness.
GUARANTEE - Page 4
<PAGE>
9. Additional Liability of Guarantors. If any Guarantor is or becomes
liable for any indebtedness owing by the Borrower to the Agent or any Bank by
endorsement or otherwise other than under this Guarantee, such liability shall
not be in any manner impaired or reduced hereby but shall have all and the same
force and effect it would have had if this Guarantee had not existed and such
Guarantor's liability hereunder shall not be in any manner impaired or reduced
thereby.
10. Cumulative Rights. All rights of the Agent and the Banks hereunder or
otherwise arising under any documents executed in connection with or as security
for the Indebtedness are separate and cumulative and may be pursued separately,
successively or concurrently, or not pursued, without affecting or limiting any
other right of the Agent or any Bank and without affecting or impairing the
liability of the Guarantors.
11. Usury. Notwithstanding any other provisions herein contained, no
provision of this Guarantee shall require or permit the collection from any
Guarantor of interest in excess of the maximum rate or amount that such
Guarantor may be required or permitted to pay pursuant to any applicable law. In
the event any such interest is collected, it shall be applied in reduction of
the Guarantor's obligations hereunder, and the remainder of such excess
collected shall be returned to the Guarantors once such obligations have been
fully satisfied.
12. The Agent. In acting under or by virtue of this Security Agreement, the
Agent shall be entitled to all the rights, authority, privileges and immunities
provided in Article VII of the Credit Agreement, all of which provisions are
incorporated by reference herein with the same force and effect as if set forth
herein. The Agent hereby disclaims any representation or warranty to the Banks
concerning the perfection of the security interest granted hereunder or the
value of the Collateral. Each of the Guarantors hereby releases the Agent from
any liability for any act or omission relating to this Guarantee, except such as
may result from the Agent's gross negligence or willful misconduct.
13. Successors and Assigns. This Guarantee shall be binding on and
enforceable against each Guarantor and its successors and assigns. This
Guarantee is intended for and shall inure to the benefit of the Agent and each
Bank and each and every person who shall from time to time be or become the
owner or holder of any of the Indebtedness, and each and every reference herein
to Agent or Bank shall include and refer to each and every successor or assignee
of the Agent or any Bank at any time holding or owning any part of or interest
in any part of the Indebtedness. This Guarantee shall be transferable and
negotiable with the same force and effect, and to the same extent, that the
Indebtedness is transferable and negotiable, it being understood and stipulated
that upon assignment or transfer by the Agent or any Bank of any of the
Indebtedness the legal holder or owner of the Indebtedness (or a part thereof or
interest therein thus transferred or assigned by the Agent or any Bank) shall
(except as otherwise stipulated by the Agent or any such Bank in its assignment)
have and may exercise all of the rights granted to the Agent or such Bank under
this Guarantee to the extent of that part of or interest in the Indebtedness
thus assigned or transferred to said person. Each Guarantor expressly waives
notice of transfer or assignment of the Indebtedness, or any part thereof, or of
the rights of the Agent or any Bank hereunder. Failure to give notice will not
affect the liabilities of the Guarantors hereunder.
GUARANTEE - Page 5
<PAGE>
14. Application of Payments. The Agent and each Bank shall apply any
payments received pursuant to this Guarantee as follows: first, to all costs and
expenses of the Agent (including without limitation reasonable attorneys' fees
and expenses) incurred in connection with the implementation and/or enforcement
of this Guarantee and/or any of the other Financing Documents; second, to all
costs and expenses of the Banks (including without limitation reasonable
attorneys' fees and expenses) incurred in connection with the implementation
and/or enforcement of this Guarantee and/or any of the other Financing
Documents; third, to the principal amount of the Indebtedness (including without
limitation to the cash collateralization term of the available undrawn amount of
outstanding Letters of Credit); fourth, to such of the Indebtedness consisting
of accrued but unpaid interest and fees; fifth to all other amounts payable with
respect to the Indebtedness; and sixth, to the payment of the surplus, if any,
to whoever may be lawfully entitled to receive such surplus.
15. Modifications. This Guarantee and the provisions hereof may be changed,
discharged or terminated only by an instrument in writing signed by each of the
Guarantors affected thereby and the Agent.
16. Discharge and Release. In the event that (i) any Guarantor is sold as
contemplated by Section 2.08(b)(ii) of the Credit Agreement, (ii) this Guarantee
or any portion hereof is released as contemplated by Section 9.05(f) of the
Credit Agreement or (iii) the indebtedness shall have been paid in full and the
obligations of the Banks to extend credit to the Borrower under the Credit
Agreement shall have terminated, the Agent, on behalf of the Banks, shall
discharge and release the relevant Guarantor(s) from all of its obligations
under this Guarantee. Upon any such release and discharge, the Agent, on behalf
of the Banks, will execute and deliver to the relevant Guarantor(s) such
documents as such Guarantor(s) shall reasonably request to evidence such
discharge and release.
17. Notices. All communications provided for herein shall be in writing
(including bank wire, telex, facsimile transmission or similar writing) and
shall be given to such party (a) at its address, facsimile number or telex
number shown below or (b) at such other address, facsimile number or telex
number as such party may hereafter specify for the purpose by notice to the
other party hereto:
if to any Guarantor:
c/o Healthcare Realty Trust Incorporated
3310 West End Avenue
Suite 400
Nashville, Tennessee 37203
Attention: Vice President Finance
Fax No.: (615) 269-8122
GUARANTEE - Page 6
<PAGE>
if to the Agent:
NationsBank, N.A.
One NationsBank Plaza
Fifth Floor
Nashville, Tennessee 37239
Attention: Ashley Crabtree
Fax No.: (615) 749-4112
Each such notice, request or other communication shall be effective (i) if given
by telex, when such telex is transmitted to the telex number specified in or
pursuant to this Section and the appropriate answerback is received, (ii) if
given by mail, 72 hours after such communication is deposited in the mails with
first class postage prepaid, addressed as aforesaid or (iii) if given by any
other means, when delivered at the address specified in or pursuant to this
Section.
18. Severability. In the event that any provision hereof shall be deemed to
be invalid by reason of the operation of any law or by reason of the
interpretation placed thereon by any court, this Guarantee shall be construed as
not containing such provision, but only as to such jurisdictions where such law
or interpretation is operative, and the invalidity of such provision shall not
affect the validity of any remaining provision hereof, and any and all other
provisions hereof which are otherwise lawful and valid shall remain in full
force and effect.
19. Applicable Law; Consent to Jurisdiction and Venue; Waiver of Jury
Trial. THIS GUARANTEE AND THE OTHER FINANCING DOCUMENTS AND ALL MATTERS RELATING
THERETO SHALL, EXCEPT TO THE EXTENT OTHERWISE REQUIRED BY APPlICABLE LAW, BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NORTH CAROLINA WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES. EACH OF
THE GUARANTORS HEREBY SUBMITS TO THE JURISDICTION AND VENUE OF THE STATE AND
FEDERAL COURTS OF NORTH CAROLINA AND AGREES THAT THE AGENT AND THE BANKS MAY, AT
THEIR OPTION, ENFORCE THEIR RESPECTIVE RIGHTS HEREUNDER AND UNDER THE OTHER
FINANCING DOCUMENTS IN SUCH COURTS. EACH OF THE GUARANTORS HEREBY IRREVOCABLY
WAIVES THE DEFENSE OF AN INCONVENIENT FORUM FOR MAINTENANCE OF ANY ACTION OR
PROCEEDING BY THE AGENT OR THE BANKS IN SUCH COURTS. EACH OF THE GUARANTORS AND
THE AGENT (ON BEHALF OF ITSELF AND THE BANKS) HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF
OR RELATING TO THIS GUARANTEE OR ANY OTHER OF THE FINANCING DOCUMENTS OR ANY OF
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
20. Headings. The headings in this instrument are for convenience of
reference only and shall not limit or otherwise affect the meaning of any
provisions hereof.
GUARANTEE - Page 7
<PAGE>
21. Counterparts.This Guarantee may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each
constituting an original, but all together one and the same instrument.
22. Rights of the Majority Banks. All rights of the Agent hereunder,if not
exercised by the Agent, may be exercised by the Majority Banks.
IN WITNESS WHEREOF, each of the Guarantors has caused this Guarantee to be
duly executed as of the date first above written.
HR OF TEXAS, INC.,
a Maryland corporation
By:___________________________
Timothy G. Wallace,
Vice President
HRT OF ALABAMA, INC.,
an Alabama corporation
By:___________________________
Timothy G. Wallace,
Vice President
HRT OF TENNESSEE, INC.,
a Tennessee corporation
By:___________________________
Timothy G. Wallace,
Vice President
HRT OF VIRGINIA, INC.,
a Virginia corporation
By:___________________________
Timothy G. Wallace,
Vice President
GUARANTEE - Page 8
<PAGE>
HRT OF ROANOKE, INC.,
a Virginia corporation
By:___________________________
Timothy G. Wallace,
Vice President
HRT OF FLORIDA, INC.,
a Florida corporation
By:___________________________
Timothy G. Wallace,
Vice President
HEALTHCARE REALTY MANAGEMENT,
INC., a Maryland corporation
By:___________________________
Timothy G. Wallace,
Vice President
DURHAM MEDICAL OFFICE BUILDING,
INC., a Texas corporation
By:___________________________
Timothy G. Wallace,
Vice President
HR FUNDING, INC.,
a Texas corporation
By:___________________________
Timothy G. Wallace,
Vice President
GUARANTEE - Page 9
<PAGE>
HR ASSETS, INC.,
a Texas corporation
By:___________________________
Timothy G. Wallace,
Vice President
HR CAPITAL, INC.,
a Texas corporation
By:___________________________
Timothy G. Wallace,
Vice President
GUARANTEE - Page 10
