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EXHIBIT 10.5
$103,000,000
364-DAY REVOLVING CREDIT AGREEMENT
dated as of November 3, 1999
among
HEALTH CARE PROPERTY INVESTORS, INC.,
THE BANKS NAMED HEREIN
THE BANK OF NEW YORK
as Agent
and
BANK OF AMERICA, N.A. and WELLS FARGO BANK, N.A.
as Co-Documentation Agents
---------------------------------------------
FIRST UNION NATIONAL BANK
as Managing Agent
BNY CAPITAL MARKETS, INC.
as Lead Arranger and Book Manager
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TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS......................................................................................1
Section 1.1. Definitions...................................................................1
ARTICLE II. THE LOANS......................................................................................14
Section 2.1. Committed Loans..............................................................14
Section 2.2. Procedure for Committed Loans................................................14
Section 2.3. Committed Notes..............................................................15
Section 2.4. Cancellation or Reduction of the Commitment..................................15
Section 2.5. Negotiated Rate Loans........................................................15
Section 2.6. Procedure for Negotiated Rate Loans..........................................15
Section 2.7. Funding of Negotiated Rate Loans.............................................16
Section 2.8. Negotiated Rate Notes........................................................16
Section 2.9. Competitive Bid Loans........................................................17
Section 2.10. Procedure for Competitive Bid Loans..........................................17
Section 2.11. Funding of Competitive Bid Loans.............................................18
Section 2.12. Competitive Bid Notes........................................................19
Section 2.13. Certain Fees.................................................................19
Section 2.14. Optional Prepayment..........................................................20
ARTICLE III. INTEREST, METHOD OF PAYMENT, CONVERSION, ETC..................................................20
Section 3.1. Procedure for Interest Rate Determination....................................20
Section 3.2. Interest on ABR Loans and Competitive Bid Loans..............................21
Section 3.3. Interest on Eurodollar Loans.................................................21
Section 3.4. Conversion/Continuance.......................................................22
Section 3.5. Post Default Interest........................................................22
Section 3.6. Maximum Interest Rate........................................................22
ARTICLE IV. DISBURSEMENT AND PAYMENT.......................................................................23
Section 4.1. Pro Rata Treatment...........................................................23
Section 4.2. Method of Payment............................................................23
Section 4.3. Compensation for Losses......................................................23
Section 4.4. Withholding, Additional Costs and Capital Adequacy...........................24
Section 4.5. Unavailability...............................................................26
ARTICLE V. REPRESENTATIONS AND WARRANTIES..................................................................27
Section 5.1. Representations and Warranties...............................................27
ARTICLE VI. CONDITIONS OF LENDING..........................................................................33
Section 6.1. Conditions to the Availability of the Commitment.............................33
Section 6.2. Conditions to All Loans......................................................34
ARTICLE VII. COVENANTS.....................................................................................35
Section 7.1. Affirmative Covenants........................................................35
Section 7.2. Negative Covenants...........................................................38
Section 7.3. Financial Covenants..........................................................40
ARTICLE VIII. EVENTS OF DEFAULT............................................................................40
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Section 8.1. Events of Default............................................................40
ARTICLE IX. THE AGENT AND THE BANKS........................................................................42
Section 9.1. The Agency and Co-Agency.....................................................42
Section 9.2. The Agent's Duties...........................................................43
Section 9.3. Sharing of Payment and Expenses..............................................43
Section 9.4. The Agent's Liabilities......................................................44
Section 9.5. The Agent as a Bank..........................................................44
Section 9.6. Bank Credit Decision.........................................................44
Section 9.7. Indemnification..............................................................44
Section 9.8. Successor Agent..............................................................45
ARTICLE X. CONSENT TO JURISDICTION.........................................................................45
Section 10.1. Consent to Jurisdiction......................................................45
ARTICLE XI. MISCELLANEOUS..................................................................................46
Section 11.1. Applicable Law...............................................................46
Section 11.2. Set-off......................................................................46
Section 11.3. Expenses.....................................................................46
Section 11.4. Amendments...................................................................46
Section 11.5. Cumulative Rights and No Waiver..............................................47
Section 11.6. Notices......................................................................47
Section 11.7. Separability.................................................................47
Section 11.8. Assignments and Participations...............................................47
Section 11.9. Waiver of Jury Trial.........................................................49
Section 11.10. Confidentiality..............................................................49
Section 11.11. Indemnity....................................................................49
Section 11.12. Extension of Termination Dates; Removal of Banks; Substitutions of Banks.....49
Section 11.13. Increase of Commitments......................................................50
Section 11.14. Knowledge of the Company.....................................................51
Section 11.15. Execution in Counterparts....................................................51
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EXHIBITS AND SCHEDULES
EXHIBIT A Form of Conversion/Continuance Request
EXHIBIT B Form of Committed Loan Request
EXHIBIT C Form of Committed Note
EXHIBIT D Form of Negotiated Rate Confirmation
EXHIBIT E Form of Negotiated Rate Note
EXHIBIT F Form of Competitive Bid Request
EXHIBIT G Form of Competitive Bid
EXHIBIT H Form of Competitive Bid Note
EXHIBIT I Form of Opinion of Latham & Watkins
EXHIBIT J Form of Opinion of Ballard Spahr Andrews & Ingersoll, LLP
EXHIBIT K Form of Extension Letter
SCHEDULE 5.1(a) Subsidiaries and Joint Ventures of the Company
SCHEDULE 8.1(f) Indebtedness
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364-DAY REVOLVING CREDIT AGREEMENT
364-DAY REVOLVING CREDIT AGREEMENT, dated as of November 3, 1999
(this "Agreement"), among Health Care Property Investors, Inc., a Maryland
corporation (the "Company"), each of the banks identified on the signature pages
hereof (each, a "Bank" and, collectively, the "Banks"), The Bank of New York, as
Agent for the Banks (the "Agent"), and Bank of America, N.A. and Wells Fargo
Bank, N.A., as Co-Documentation Agents, with BNY Capital Markets, Inc., as Lead
Arranger and Book Manager:
W I T N E S S E T H:
WHEREAS, the Company has requested the Banks to lend up to
$103,000,000 to the Company on a revolving basis to refinance certain existing
indebtedness, to finance the acquisition of American Health Properties, Inc., a
Delaware corporation ("AHPI"), and for other general corporate purposes;
NOW, THEREFORE, the parties hereby agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.1. Definitions.
(a) Terms Generally. The definitions ascribed to terms in this
SECTION and elsewhere in this Agreement shall apply equally to both the singular
and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms.
The words "include", "includes" and "including" shall be deemed to be followed
by the phrase "without limitation". The words "hereby", "herein", "hereof",
"hereunder" and words of similar import refer to this Agreement as a whole
(including any exhibits and schedules hereto) and not merely to the specific
section, paragraph or clause in which such word appears. All references herein
to Articles, Sections, Exhibits and Schedules shall be deemed references to
Articles and Sections of, and Exhibits and Schedules to, this Agreement unless
the context shall otherwise require. Except as otherwise expressly provided
herein, (i) all references to "dollars" or "$" shall be deemed references to the
lawful money of the United States of America, and (ii) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or other modifications set forth
herein).
(b) Accounting Terms. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided, however, that,
for purposes of determining compliance with any covenant set forth in SECTION
7.2(a), 7.2(b), 7.2(c), 7.2(d) or 7.3 which requires financial computations, if
any such change in GAAP would have a material effect on such computations, then
such terms shall be construed in accordance with GAAP as in effect on the date
of this
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Agreement applied on a basis consistent with the construction thereof applied in
preparing the Company's audited financial statements referred to in SECTION
5.1(h). In the event there shall occur a change in GAAP which but for the
foregoing proviso would affect the computation used to determine compliance with
any covenant set forth in SECTION 7.2(a), 7.2(b), 7.2(c) or 7.3 which requires
financial computations, the Company and the Banks agree to negotiate in good
faith in an effort to agree upon an amendment to this Agreement that will permit
compliance with such covenant to be determined by reference to GAAP as so
changed while affording the Banks the protection afforded by such covenant prior
to such change (it being understood, however, that such covenant shall remain in
full force and effect in accordance with its existing terms pending the
execution by the Company and the Banks of any such amendment).
(c) Other Terms. The following terms shall have the meanings
ascribed to them below or in the Sections of this Agreement indicated below:
"ABR Loans" shall mean Committed Loans which bear interest at a
rate based upon the Base Rate and in the manner set forth in SECTION 3.2.
"Adverse Environmental Condition" shall mean any of the matters
referred to in clauses (i) or (ii) of the definition of Environmental Claim.
"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under direct or
indirect common control with such Person. A Person shall be deemed to control
another Person if such first Person possesses, directly or indirectly, the power
to direct or cause the direction of the management and policies of such other
Person, whether through ownership of stock, by contract or otherwise.
"Agent" shall have the meaning given to such term in the preamble
of this Agreement and shall also include any successor agent hereunder.
"Agreement" shall have the meaning given to such term in the
preamble.
"AHPI" shall have the meaning given to such term in the preamble.
"AHPI Merger Documents" shall mean the Agreement and Plan of
Merger, dated as of August 4, 1999, between the Company and AHPI, and each
agreement, instrument or other document executed or delivered in connection
therewith.
"Applicable Margin" shall mean the margin set forth in the
following chart applicable to the Pricing Level then in effect:
APPLICABLE
PRICING LEVEL MARGIN
------------- ----------
I 0.7250%
II 0.8125%
III 1.0500%
IV 1.1250%
V 1.2000%
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APPLICABLE
PRICING LEVEL MARGIN
------------- ----------
VI 1.5250%
Subject to clauses (i), (ii) and (iii) below, "Pricing Level I" shall be
applicable for so long as the rating of the Company's unsecured (non-credit
enhanced) senior long term debt ("Senior Debt Rating") is greater than or equal
to A by Standard & Poor's Ratings Services, a division of The McGraw Hill
Companies, Inc., or any successor thereto ("S&P"), or greater than or equal to
A2 by Moody's Investors Service, Inc., or any successor thereto ("Moody's");
"Pricing Level II" shall be applicable for so long as the Senior Debt Rating is
greater than or equal to A- by S&P or greater than or equal to A3 by Moody's and
Pricing Level I is not applicable; "Pricing Level III" shall be applicable for
so long as the Senior Debt Rating is greater than or equal to BBB+ by S&P or
greater than or equal to Baa1 by Moody's and neither Pricing Level I nor II is
applicable; "Pricing Level IV" shall be applicable for so long as the Senior
Debt Rating is greater than or equal to BBB by S&P or greater than or equal to
Baa2 by Moody's and none of Pricing Level I, II or III is applicable; "Pricing
Level V" shall be applicable for so long as the Senior Debt Rating is greater
than or equal to BBB- by S&P or greater than or equal to Baa3 by Moody's and
none of Pricing Level I, II, III or IV is applicable; and "Pricing Level VI"
shall be applicable for so long as none of Pricing Level I, II, III, IV or V is
applicable.
Notwithstanding the foregoing, (i) in the event of a split rating
as between S&P and Moody's by more than one equivalent rating level, then the
Pricing Level shall be determined by a rating that is one rating higher than the
lower of the two ratings; (ii) in the event that no Senior Debt Rating is made
available by S&P and Moody's and the Company's senior subordinated unsecured
debt rating is made available by S&P or Moody's, then for purposes of the
foregoing determinations the Senior Debt Rating shall be deemed to be one rating
higher than such subordinated unsecured debt rating (e.g., if such subordinated
unsecured debt rating by S&P is A-, then the Senior Debt Rating by S&P shall be
deemed to be A); and (iii) in the event that no Senior Debt Rating and no such
subordinated unsecured debt rating are made available by S&P and Moody's, then
Pricing Level VI above shall apply.
"Assignee" shall have the meaning given to such term in SECTION
11.8(c).
"Bank" shall have the meaning given to such term in the preamble
of this Agreement and shall also include any other financial institution which
pursuant to the provisions hereof becomes a party to this Agreement.
"Base LIBOR" shall mean, with respect to any Interest Period for
a Eurodollar Loan, the rate per annum determined by the Agent to be the
arithmetic mean (rounded to the nearest 1/16 of 1% or, if there is no nearest
1/16 of 1%, to the next higher 1/16 of 1%) of the respective rates of interest
communicated by the Reference Banks to the Agent as the rate at which U.S.
dollar deposits are offered to the Reference Banks by leading banks in the
London interbank deposits market at approximately 11:00 A.M., London time, on
the second full Business Day preceding the first day of such Interest Period in
an amount substantially equal to the respective Reference Amounts for a term
equal to such Interest Period.
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"Base Rate" shall mean a fluctuating interest rate per annum as
shall be in effect from time to time, which rate per annum shall on any day be
equal to the higher of:
(a) the rate of interest publicly announced by the Agent
from time to time as its prime commercial loan rate in effect on such
day; and
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there
is no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of 1%
per annum and (ii) the Federal Funds Rate.
"Borrowing Date" shall mean the date set forth in each Committed
Loan Request, Negotiated Rate Confirmation or Competitive Bid Request, as the
case may be, as the date upon which the Company desires to borrow Loans pursuant
to the terms of this Agreement.
"Business Day" shall mean (i) with respect to any ABR Loan, any
payment of the Facility Fee, any Negotiated Rate Loan or any Competitive Bid
Loan, any day except a Saturday, Sunday or other day on which commercial banks
in New York City or Los Angeles are authorized by law to close and (ii) with
respect to any Eurodollar Loan, any day on which commercial banks are open for
domestic and international business (including dealings in U.S. dollar deposits)
in London, New York City and Los Angeles.
"Capital Lease" shall mean, with respect to any Person, any
obligation of such Person to pay rent or other amounts under a lease with
respect to any property (whether real, personal or mixed) acquired or leased by
such Person that is required to be accounted for as a liability on a balance
sheet of such Person in accordance with GAAP.
"Capital Lease Obligations" shall mean the obligation of any
Person to pay rent or other amounts under a Capital Lease.
"Change of Control" shall mean (i) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person(s) and/or
group(s) (within the meaning of the Securities Exchange Act of 1934 and the
rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof) of shares representing 35% or more of the aggregate ordinary voting
power or economic interests represented by the issued and outstanding equity
securities of the Company on a fully diluted basis or (ii) during any period of
up to 24 consecutive months, commencing after the date hereof, individuals who
at the beginning of such 24-month period were directors of the Company (together
with any new directors whose election or nomination for election to the board of
directors of the Company was approved by 66% of the directors who were either in
office at the beginning of such period or whose election or nomination for
election to the board of directors of the Company was previously so approved)
shall cease for any reason (other than due to death or disability or, in
addition to the foregoing, in the case of directors in office on the date
hereof, retirement in the ordinary course or pursuant to contractual agreements
in effect on the date hereof) to constitute a majority of the board of directors
of the Company.
"Co-Documentation Agents" shall mean Bank of America, N.A. and
Wells Fargo Bank, N.A., and shall also include any successor co-documentation
agent(s) hereunder.
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"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commitment" of any Bank shall mean, in the case of each Bank,
(i) prior to such Bank's Termination Date, the amount set forth opposite such
Bank's name under the heading "Commitment" on the signature pages hereof, or set
forth in the assignment agreement executed by such Bank if it is not a Bank on
the date hereof, as such amount may be adjusted from time to time pursuant to
assignments of such Bank and as such amount may be reduced from time to time
pursuant to SECTION 2.4 or 11.12 or increased pursuant to SECTION 11.13 and (ii)
on or after such Bank's Termination Date, zero.
"Committed Loan Request" shall mean a request by the Company to
borrow Committed Loans pursuant to the terms hereof, which shall be
substantially in the form of EXHIBIT B and shall specify, with respect to such
requested Committed Loans, (i) the requested Borrowing Date, (ii) the aggregate
amount of Committed Loans which the Company desires to borrow on such date,
(iii) whether such requested Committed Loans are to bear interest as ABR Loans
or Eurodollar Loans and (iv) if the requested Committed Loans are to bear
interest as Eurodollar Loans, the requested term of the Interest Period
therefor.
"Committed Loans" shall mean, collectively, ABR Loans and
Eurodollar Loans made pursuant to SECTIONS 2.1 to 2.3 and outstanding hereunder
from time to time.
"Committed Notes" shall mean, collectively, the promissory notes
of the Company, each substantially in the form of EXHIBIT C.
"Company" shall have the meaning given to such term in the
preamble.
"Competitive Bid" shall mean an offer by a Bank to make a
Competitive Bid Loan pursuant to SECTIONS 2.9 to 2.12, substantially in the form
of EXHIBIT G.
"Competitive Bid Borrowing" shall mean a Competitive Bid Loan or
a group of Competitive Bid Loans made on the same date and as to which a single
term is in effect as specified in a Competitive Bid Request.
"Competitive Bid Loan" shall mean a Loan that is made pursuant to
SECTIONS 2.9 to 2.12 and outstanding hereunder.
"Competitive Bid Notes" shall mean, collectively, the promissory
notes of the Company, each substantially in the form of EXHIBIT H.
"Competitive Bid Rate" shall have the meaning given to such term
in SECTION 2.10(b).
"Competitive Bid Request" shall mean a request by the Company for
Competitive Bids pursuant to SECTIONS 2.9 to 2.12, substantially in the form of
EXHIBIT F.
"Compliance Date" shall mean each of the Effective Date, each
Borrowing Date, each Conversion/Continuance Date and the date of each delivery
by the Company of a certificate
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requiring the Company to certify as to the accuracy of the representations and
warranties contained in Article V.
"Consolidated Debt" shall mean Consolidated Total Liabilities
less (i) accounts payable and accrued expenses and (ii) minority interest in
joint ventures, each as set forth in the most recent financial statements
delivered to the Banks pursuant to this Agreement.
"Consolidated Funds from Operations" shall mean, for any period,
"Funds From Operations" or the similar item, determined on a consolidated basis
for the Company and the Subsidiaries, as shown on the most recent consolidated
statements of cash flows for the Company and the Subsidiaries which has been
delivered to the Agent pursuant to SECTION 7.1(a).
"Consolidated Interest Expense" shall mean, for any period, total
interest expense (including that attributable to Capital Leases in accordance
with GAAP) of the Company and the Subsidiaries, determined on a consolidated
basis, in accordance with GAAP with respect to all outstanding Indebtedness of
the Company and the Subsidiaries, including all net costs under Interest Rate
Protection Agreements.
"Consolidated Senior Debt" shall mean (i) the Loans and (ii) all
other Consolidated Debt unless by the terms of the instrument creating or
evidencing such other Consolidated Debt it is provided that such Consolidated
Debt is subordinated in right of payment to the Loans.
"Consolidated Stockholders' Equity" shall mean, for any period,
"Total Stockholders' Equity" or the similar item, determined on a consolidated
basis for the Company and the Subsidiaries, as shown on the most recent
consolidated balance sheet for the Company and the Subsidiaries which has been
delivered to the Agent pursuant to SECTION 7.1(a).
"Consolidated Total Assets" shall mean, at any date of
determination, "Total Assets" or the similar item, determined on a consolidated
basis for the Company and the Subsidiaries, as shown on the most recent
consolidated balance sheet for the Company and the Subsidiaries which has been
delivered to the Agent pursuant to SECTION 7.1(a).
"Consolidated Total Liabilities" shall mean, at any date of
determination, "Total Liabilities and Stockholders Equity" or the similar item,
determined on a consolidated basis for the Company and the Subsidiaries, as
shown on the most recent consolidated balance sheet for the Company and the
Subsidiaries which has been delivered to the Agent pursuant to SECTION 7.1(a),
less Consolidated Stockholders' Equity.
"Conversion/Continuance Date" shall mean the date on which a
conversion of interest rates on outstanding Committed Loans, pursuant to a
Conversion/Continuance Request, shall take effect.
"Conversion/Continuance Request" shall mean a request by the
Company to convert or continue the interest rate on all or portions of
outstanding Committed Loans pursuant to the terms hereof, which shall be
substantially in the form of EXHIBIT A and shall specify, with respect to such
outstanding Committed Loans, (i) the requested Conversion/Continuance Date,
which shall be not less than three Business Days after the date of such
Conversion/Continuance
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Request, (ii) the aggregate amount of the Committed Loans, from and after the
Conversion/Continuance Date, which are to bear interest as ABR Loans or
Eurodollar Loans and (iii) if any Committed Loans are Eurodollar Loans, the term
of the Interest Periods therefor, if any.
"Credit Documents" shall mean this Agreement and the Notes.
"Effective Date" shall have the meaning given to such term in
SECTION 6.1.
"Default" shall mean any event or circumstance which, with the
giving of notice or the passage of time, or both, would become an Event of
Default.
"Environmental Claim" shall mean any notice, request for
information, action, claim, order, proceeding, demand or direction (conditional
or otherwise) based on, relating to, or arising out of, (i) any violation of any
Environmental Law by the Company or any person acting on behalf of the Company,
or (ii) any liabilities under any Environmental Law arising out of or otherwise
in respect of any act, omission, event, condition or circumstance existing or
occurring in connection with the Company, including liabilities relating to the
release of Hazardous Substances (whether on-site or off-site), any claim by any
third party (including tort suits for personal or bodily injury, tangible or
intangible property damage, damage to the environment, nuisance and injunctive
relief), fines, penalties or restrictions, or the transportation, storage,
treatment or disposal of any Hazardous Substances.
"Environmental Law" shall mean (i) any federal, state, foreign
and local law, statute, ordinance, rule, regulation, code, license, permit,
authorization, approval, consent, legal doctrine, order, judgment, decree,
injunction, requirement or agreement with any governmental entity, (a) relating
to the protection, preservation or restoration of the environment, (including
air, water vapor, surface water, groundwater, drinking water supply, surface
land, subsurface land, plant and animal life or any other natural resource), or
to human health or safety, or (b) the exposure to, or the use, storage,
recycling, treatment, generation, transportation, processing, handling,
labeling, production, release or disposal of Hazardous Substances, in each case
as amended and as now or hereafter in effect. The term Environmental Law
includes the Federal Comprehensive Environmental Response Compensation and
Liability Act of 1980, the Superfund Amendments and Reauthorization Act, the
Federal Water Pollution Control Act of 1972, the Federal Clean Air Act, the
Federal Clean Water Act, the Federal Resource Conservation and Recovery Act of
1976 (including the Hazardous and Solid Waste Amendments thereto), the Federal
Solid Waste Disposal Act, the Federal Toxic Substances Control Act, the Federal
Insecticide, Fungicide and Rodenticide Act and the Federal Occupational Safety
and Health Act of 1970, each as amended and as now or hereafter in effect, and
(ii) any common law or equitable doctrine (including injunctive relief and tort
doctrines such as negligence, nuisance, trespass and strict liability) that may
impose liability or obligations for injuries or damages due to, or threatened as
a result of, the presence of or exposure to any Hazardous Substance.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
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"ERISA Affiliate" shall mean a corporation, partnership or other
entity which is considered one employer with the Company under Section 4001 of
ERISA or Section 414(b), (c) or (m) of the Code.
"Eurodollar Loans" shall mean Committed Loans which bear interest
at a rate based upon Base LIBOR and in the manner set forth in SECTION 3.3.
"Eurodollar Lending Office" shall have the meaning given to such
term in SECTION 3.3(d).
"Eurodollar Reserve Percentage" shall mean, for any day, that
percentage, expressed as a decimal, which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including any
marginal, supplemental or emergency reserve requirements) for a member bank of
the Federal Reserve System in New York City with deposits exceeding one billion
dollars in respect of eurocurrency funding liabilities. LIBOR shall be adjusted
automatically on and as of the effective date of any change in the Eurodollar
Reserve Percentage.
"Event of Default" shall have the meaning given to such term in
SECTION 8.1.
"Facility Fee" shall have the meaning given to such term in
SECTION 2.13(a).
"Facility Fee Rate" shall mean, with respect to any Facility Fee
payment, the facility fee rate set forth in the following chart applicable to
the Pricing Level (determined as set forth under "Applicable Margin" above) in
effect on the date on which such Facility Fee payment is due:
PRICING LEVEL FACILITY FEE
------------- ------------
I 0.1500%
II 0.1875%
III 0.2000%
IV 0.2500%
V 0.3000%
VI 0.3500%
"Federal Funds Rate" shall mean, for any day, the rate (rounded
to the nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%, to the next
higher 1/16 of 1%) on such day for Federal Funds as published in H.15(519), or
any successor publication, under the heading "Federal Funds (Effective)". In the
event that such rate or such publication is not published with respect to such
day, the Federal Funds Rate on such day shall be the "Federal Funds/Effective
Rate" as posted by the Federal Reserve Bank of New York for that day in its
publication "Composite Closing Quotations for U.S. Government Securities". The
Federal Funds Rate for Saturdays, Sundays and any other day on which the Federal
Reserve Bank of New York is closed shall be the Federal Funds Rate as in effect
for the next preceding day for which such rates are published or posted, as the
case may be.
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"GAAP" shall mean generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entities as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination.
"Guarantee" by any person shall mean any obligation, contingent
or otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
Person, (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or to purchase (or to advance or supply funds for
the purchase of) any security for the payment of such Indebtedness, (ii) to
purchase property, securities or services for the purpose of assuring the holder
of such Indebtedness of the payment of such Indebtedness, or (iii) to maintain
working capital, equity capital or other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness (and "Guaranteed", "Guaranteeing" and "Guarantor" shall have
meanings correlative to the foregoing).
"Governmental Authority" shall mean any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Hazardous Substance" shall mean any substance presently or
hereafter listed, defined, designated or classified as hazardous, toxic,
radioactive or dangerous, or otherwise regulated, under any Environmental Law,
whether by type or by quantity, including any substance containing any such
substance as a component. Hazardous Substance includes any toxic waste,
pollutant, contaminant, hazardous substance, toxic substance, hazardous waste,
special waste or petroleum or any derivative or by-product thereof, radon,
radioactive material, asbestos, asbestos containing material, urea formaldehyde
foam insulation, lead and polychlorinated biphenyl.
"Increasing Bank" shall have the meaning given to such term in
SECTION 11.13.
"Indebtedness" of any Person shall mean, without duplication, (i)
all indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services (including all obligations, contingent or
otherwise, of such Person in connection with letter of credit facilities,
bankers' acceptance facilities, Interest Rate Protection Agreements or other
similar facilities including currency swaps), other than indebtedness to trade
creditors and service providers incurred in the ordinary course of business,
(ii) all obligations of such Person evidenced by bonds, notes, debentures or
other similar instruments, (iii) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (iv) all Capital Lease Obligations of such Person,
(v) all Indebtedness referred to in clauses (i), (ii), (iii) or (iv) above
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in property
(including accounts and
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contract rights) owned by such Person, even though such Person has not assumed
or become liable for the payment of such Indebtedness, (vi) all preferred stock
issued by such Person which is redeemable prior to the full satisfaction of the
Company's obligations under the Credit Documents (including repayment in full of
the Loans and all interest accrued thereon), other than at the option of such
Person, valued at the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends and (vii) all Indebtedness of
others Guaranteed by such Person. For purposes of this Agreement, the amount of
any Indebtedness under clauses (iii) and (v) shall be the lesser of (a) the
principal amount of such Indebtedness and (b) the value of the property subject
to the Lien referred to therein.
"Indemnitee" shall have the meaning given to such term in SECTION
11.11.
"Initial Loan" shall mean the first Loan which is made pursuant
to the terms of this Agreement.
"Initial Transactions" shall mean the following transactions
consummated on or before the Effective Date: (i) the merger of AHPI into the
Company pursuant to the AHPI Merger Documents in effect on the Effective Date,
and (ii) the payment in full of all Indebtedness (together with all accrued and
unpaid interest, fees and other unpaid sums) under, and the cancellation or
termination of, each of the following documents (together with the cancellation
or termination of any and all Liens securing the same): (a) each of the Amended
and Restated $135,000,000 Revolving Credit Agreement and the Amended and
Restated $45,000,000 Revolving Credit Agreement, dated as of October 22, 1997,
among the Company, the banks named therein, and The Bank of New York, as agent,
(b) the Credit Agreement, dated as of December 23, 1993, among AHPI, the lenders
party thereto and Wells Fargo Bank, N.A., as administrative agent, and (c) all
agreements, instruments and other documents executed or delivered in connection
with any of the foregoing.
"Interest Period" shall mean each one, two, three or six-month
period, in the case of Eurodollar Loans; such period being the one selected by
the Company pursuant to SECTION 2.2 or 3.4 hereof and commencing on the date the
relevant loan is made or the last day of the current Interest Period, as the
case may be.
"Interest Rate Protection Agreements" shall mean any interest
rate swap agreement, interest rate cap agreement or similar arrangement used by
a Person to fix or cap a floating rate of interest on Indebtedness to a
negotiated maximum rate or amount.
"Lead Arranger and Book Manager" shall mean BNY Capital Markets,
Inc.
"Lien" shall mean, with respect to any asset, (i) any mortgage,
deed of trust, lien, pledge, encumbrance, charge or security interest in or on
such asset and (ii) the interest of a vendor or lessor under any conditional
sale agreement, capital lease or title retention agreement relating to such
asset.
"LIBOR" shall mean, with respect to any Interest Period, the rate
per annum (rounded to the nearest 1/16 of 1% or, if there is no nearest 1/16 of
1%, to the next higher 1/16 of 1%) determined pursuant to the following formula:
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Base LIBOR
-----------------------------------
LIBOR = (1 - Eurodollar Reserve Percentage)
"Loans" shall, collectively, mean the Committed Loans, the
Negotiated Rate Loans and the Competitive Bid Loans and, individually, any
Committed Loan, any Negotiated Rate Loan or any Competitive Bid Loan.
"Material Adverse Change" shall mean a material adverse change in
the business, properties, condition (financial or otherwise) or operations of
the Company and the Subsidiaries, taken as a whole, in each case determined on a
pro forma basis after giving effect to the Initial Transactions, from that
reflected in the financial statements referred to in SECTION 5.1(h)(iii).
"Material Adverse Effect" shall mean (i) any material adverse
effect on the business, properties, condition (financial or otherwise) or
operations of the Company and the Subsidiaries, taken as a whole, from and after
the date of any determination, (ii) any material adverse effect on the ability
of the Company to perform its obligations hereunder and under the other Credit
Documents, or (iii) any adverse effect on the legality, validity, binding effect
or enforceability of this Agreement or any other Credit Document.
"Negotiated Rate Borrowing" shall mean one or more Negotiated
Rate Loans made to the Company by one or more of the Banks and of which the
Agent is given notice by a Negotiated Rate Confirmation.
"Negotiated Rate Confirmation" shall mean the notice, in
substantially the form of EXHIBIT D, pertaining to a Negotiated Rate Loan, and
made pursuant to SECTION 2.6, duly completed and executed and personally
delivered or transmitted by facsimile to the Company.
"Negotiated Rate Funding Date" shall mean the date specified in
the Negotiated Rate Confirmation as the date of funding for the relevant
Negotiated Rate Borrowing.
"Negotiated Rate Loan" shall mean a Loan that is made pursuant to
SECTIONS 2.5 to 2.8.
"Negotiated Rate Notes" shall mean, collectively, the promissory
notes of the Company, each substantially in the form of EXHIBIT E.
"Notes" shall mean, collectively, the Committed Notes, the
Negotiated Rate Notes and the Competitive Bid Notes.
"Participant" shall have the meaning given to such term in
SECTION 11.8(b).
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
successor thereto.
"Permitted Encumbrances" shall mean (i) Liens for taxes not
delinquent or being contested in good faith and by appropriate proceedings and
for which adequate reserves (in accordance with GAAP) are being maintained, (ii)
deposits or pledges to secure obligations under workers' compensation, social
security or similar laws, or under unemployment insurance,
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(iii) deposits or pledges to secure bids, tenders, contracts (other than
contracts for the payment of money), leases, statutory obligations, surety and
appeal bonds and other obligations of like nature arising in the ordinary course
of business, (iv) mechanics', workers', materialmen's or other like Liens
arising in the ordinary course of business with respect to obligations which are
not due or which are being contested in good faith and (v) minor imperfections
of title on real estate, provided such imperfections do not render title
unmarketable.
"Person" shall mean any individual, sole proprietorship,
partnership, joint venture, trust, unincorporated organization, association,
corporation, institution, public benefit corporation, entity or government
(whether Federal, state, county, city, municipal or otherwise, including any
instrumentality, division, agency, body or department thereof).
"Plan" shall mean an employee benefit plan as defined in Section
3(3) of ERISA which is maintained or contributed to by the Company or an ERISA
Affiliate while such entity is an ERISA Affiliate.
"Prescribed Forms" shall mean such duly executed form(s) or
statement(s), and in such number of copies, which may, from time to time, be
prescribed by law and which, pursuant to applicable provisions of (i) an income
tax treaty between the United States and the country of residence of the Bank
providing the form(s) or statement(s), (ii) the Code, or (iii) any applicable
rule or regulation under the Code, permit the Company to make payments hereunder
for the account of such Bank free of deduction or withholding for income or
similar taxes.
"Pro Rata Share" shall mean, with respect to any Bank, the
proportion of such Bank's Commitment to the Total Commitment of all the Banks
or, if the Total Commitment shall have been canceled or reduced to zero or
expired, the proportion of such Bank's then outstanding Committed Loans to the
aggregate amount of Committed Loans then outstanding.
"Properties" shall have the meaning given to such term in SECTION
5.1(s).
"Reference Amount" shall mean, with respect to any Reference Bank
and Interest Period, (i) if that Reference Bank is a Bank, the amount of that
Bank's Eurodollar Loan scheduled to be outstanding during that Interest Period
or (ii) if that Reference Bank is not a Bank, the amount scheduled to be
outstanding during that Interest Period of the Eurodollar Loan of the office or
affiliate of that Reference Bank that is a Bank, in either case, (a) without
taking into account any reduction in the amount of any Bank's Loan through any
assignment or transfer and (b) rounded up to the nearest integral multiple of
$1,000,000.
"Reference Bank" shall mean each of The Bank of New York, Bank of
America, N.A. and Wells Fargo Bank, N.A.
"Required Banks" shall mean, at any date, Banks having at least
51% of the Total Commitment or, if the Total Commitment has been canceled or
terminated, holding Notes evidencing at least 51% of the aggregate unpaid
principal amount of the Loans.
"Single-Employer Plan" shall mean any Plan that is a
single-employer plan as defined in Section 4001(a)(15) of ERISA which is subject
to the provisions of Title IV of ERISA.
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"Subsidiary" shall mean any Person of which or in which the
Company and its other Subsidiaries own directly or indirectly 50% or more of:
(a) the combined voting power of all classes of stock having
general voting power under ordinary circumstances to elect a majority of
the board of directors of such Person, if it is a corporation,
(b) the capital interest or profits interest of such Person,
if it is a partnership, joint venture or similar entity, or
(c) the beneficial interest of such Person, if it is a
trust, association or other unincorporated organization;
provided, however, that "Subsidiary" shall not include any such entity that the
Company does not control. For the purposes of this paragraph, the term "control"
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a person, whether through
the ownership of voting equity interests, by contract or otherwise.
"Successor Bank" shall have the meaning given to such term in
SECTION 11.12(c).
"Taxes" shall have the meaning given to such term in SECTION
4.4(a).
"Terminating Bank" shall have the meaning given to such term in
SECTION 11.12(c).
"Termination Date" shall mean, with respect to any Bank, the
earlier to occur of (i) the three hundred and sixty-fourth day after the date of
this Agreement or such later date as may be agreed to by such Bank pursuant to
SECTION 11.12 and (ii) the date on which the obligations of such Bank to make
loans hereunder shall terminate pursuant to SECTION 8.1 or the Commitments shall
be reduced to zero pursuant to SECTION 2.4.
"Total Commitment" shall mean the aggregate Commitment of all the
Banks.
"Unmatured Surviving Obligations" shall mean, as of any date, any
obligations under this Agreement which are contingent and unliquidated and not
then due and payable on such date and which pursuant to the provisions of this
Agreement survive termination of this Agreement.
"Utilization Fee" shall have the meaning given to such term in
SECTION 2.13(b).
"Wholly-Owned Subsidiary" shall mean any Subsidiary all the
equity interests of which (other than directors' qualifying shares, if a
corporation) at the time are owned directly or indirectly by the Company and/or
one or more Wholly-Owned Subsidiaries of the Company.
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ARTICLE II.
THE LOANS
Section 2.1. Committed Loans. Prior to the Termination Date, and subject
to the terms and conditions of this Agreement, upon the request of the Company,
and upon the satisfaction by the Company or the waiver by each of the Banks of
each of the conditions contained in SECTION 6.2, each of the Banks, severally
and not jointly with the other Banks, agrees to make one or more Committed Loans
to the Company from time to time in an aggregate principal amount at any one
time outstanding not to exceed its Commitment; provided, however, that the sum
of (i) the aggregate principal amount of outstanding Committed Loans, (ii) the
aggregate principal amount of outstanding Negotiated Rate Loans and (iii) the
aggregate principal amount of outstanding Competitive Bid Loans may not exceed
the Total Commitment.
Section 2.2. Procedure for Committed Loans. (a) The Company may borrow
Committed Loans by delivering a written Committed Loan Request to the Agent (i)
at or before 11:00 a.m., New York City time, on the requested Borrowing Date
therefor, in the case of ABR Loans, or (ii) at or before 12:00 noon, New York
City time, on the date not less than three Business Days prior to the requested
Borrowing Date therefor, in the case of Eurodollar Loans. Committed Loans shall
be in the minimum aggregate amount of $1,000,000 or in integral multiples of
$100,000 in excess thereof.
(b) Upon receipt of any Committed Loan Request from the Company,
the Agent shall forthwith give notice to each Bank of the substance thereof. Not
later than 2:00 p.m., New York City time, on the Borrowing Date specified in
such Committed Loan Request, each Bank shall make available to the Agent in
immediately available funds at the office of the Agent at its address set forth
on the signature pages hereof, such Bank's Pro Rata Share of the requested
Committed Loans.
(c) Upon receipt by the Agent of all such funds, the Agent shall
disburse to the Company on the requested Borrowing Date the Committed Loans
requested in such Committed Loan Request. The Agent may, but shall not be
required to, advance on behalf of any Bank such Bank's Pro Rata Share of the
Committed Loans on a Borrowing Date unless such Bank shall have notified the
Agent prior to such Borrowing Date that it does not intend to make available its
Pro Rata Share of such Committed Loans on such date. If the Agent makes such
advance, the Agent shall be entitled to recover such amount on demand from the
Bank on whose behalf such advance was made, and if such Bank does not pay the
Agent the amount of such advance on demand, the Company shall promptly repay
such amount to the Agent. Until such amount is repaid to the Agent by such Bank
or the Company, such advance shall be deemed for all purposes to be a Loan made
by the Agent. The Agent shall be entitled to recover from the Bank or the
Company, as the case may be, interest on the amount advanced by it for each day
from the Borrowing Date therefor until repaid to the Agent, at a rate per annum
equal to (i) in the case of the Bank, (1) the Federal Funds Rate, for the
five-day period beginning on the Borrowing Date, and (2) the applicable rate on
the Loans made on the Borrowing Date, for the period beginning on the sixth day
after the Borrowing Date, and (ii) in the case of the Company, the applicable
rate on the Loans made on the Borrowing Date.
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(d) In lieu of delivering the written notice described above, the
Company may give the Agent telephonic notice of any request for borrowing by the
time required under this SECTION; provided that such telephonic notice shall be
confirmed by delivery of a written Committed Loan Request to the Agent by no
later than 3:00 p.m., New York City time, on the date of such telephonic notice.
Section 2.3. Committed Notes. The Company's obligation to repay the
Committed Loans shall be evidenced by Committed Notes, one such Committed Note
payable to the order of each Bank. The Committed Note of each Bank shall (i) be
in the principal amount of such Bank's Commitment, (ii) be dated the date of the
initial Committed Loan and (iii) be stated to mature on the Termination Date as
such date may be extended hereunder and bear interest from its date until
maturity on the principal balance (from time to time outstanding thereunder)
payable at the rates and in the manner provided herein. Each Bank is authorized
to indicate upon the grid attached to its Committed Note all Committed Loans
made by it pursuant to this Agreement, interest elections and payments of
principal and interest thereon. Such notations shall be presumptive as to the
aggregate unpaid principal amount of all Committed Loans made by such Bank, and
interest due thereon, but the failure by any Bank to make such notations or the
inaccuracy or incompleteness of any such notations shall not affect the
obligations of the Company hereunder or under the Committed Notes.
Section 2.4. Cancellation or Reduction of the Commitment. The Company
shall have the right, upon not less than three Business Days' written notice to
the Agent and upon payment of the Facility Fees accrued through the date of such
cancellation or reduction, with respect to the amount of the cancellation or
reduction, to cancel the Total Commitment in full or to reduce the amount
thereof; provided, however, that the Total Commitment may not be canceled so
long as any Loan remains outstanding; and provided, further, that the amount of
any partial reduction in the Total Commitment shall not exceed the remainder of
(i) the Total Commitment on such date minus (ii) the aggregate outstanding
principal amount of all Committed Loans, Negotiated Rate Loans and Competitive
Bid Loans on such date. Partial reductions of the Total Commitment shall be in
the amount of $5,000,000 or in integral multiples of $1,000,000 in excess
thereof (or, if the aggregate outstanding amount of all Loans is less than
$5,000,000, then all of such lesser amount). All such cancellations or
reductions shall be permanent.
Section 2.5. Negotiated Rate Loans. On the terms and subject to the
conditions of this Agreement, each Bank, severally and for itself alone, may
(but is not obligated to) make one or more Negotiated Rate Loans to the Company
from time to time on or after the Effective Date and prior to such Bank's
Termination Date in amounts determined as indicated in the Negotiated Rate
Confirmation and for a term that, for each Negotiated Rate Loan, is not less
than one day nor more than 270 days from the date of funding of such Negotiated
Rate Loan as provided in SECTION 2.7; provided that the aggregate principal
amount of all outstanding Loans shall not at any time exceed the then Total
Commitment.
Section 2.6. Procedure for Negotiated Rate Loans. The Company may, from
time to time, approach one or more of the Banks to determine whether such Bank
or Banks will make one or more Negotiated Rate Loans. The Company and any Bank
or Banks shall, if each of them in their sole discretion elects to do so, agree
to enter into one or more Negotiated Rate Loans as part of such proposed
Negotiated Rate Borrowing on mutually agreed-upon terms and notify the
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Agent by delivering a written Negotiated Rate Confirmation from the Company and
the Bank or Banks proposing to make Negotiated Rate Loans before 12:30 p.m. (New
York City time) on the date of the funding of such Negotiated Rate Loan, which
shall be a Business Day (the "Negotiated Rate Funding Date"). Such Negotiated
Rate Confirmation shall specify the amount of each Negotiated Rate Loan that
such Bank or Banks will make as part of such proposed Negotiated Rate Borrowing
(which amounts may, subject to the proviso in SECTION 2.5, exceed each such
Bank's Commitment), the Negotiated Rate Funding Date, the date or dates of
maturity thereof, which date or dates may not occur after the Termination Date,
the rate or rates of interest applicable thereto and all other terms thereof.
Each Negotiated Rate Loan shall be made pursuant to a Negotiated Rate
Confirmation. In lieu of delivering the written Negotiated Rate Confirmation
described above, the Company may give the Agent telephonic notice of any
Negotiated Rate Borrowing by the time required under this clause (a), provided
that such telephonic notice shall be confirmed by delivery of a written
Negotiated Rate Confirmation to the Agent by no later than 2:00 p.m., New York
City time, on the date of such telephonic notice.
Section 2.7. Funding of Negotiated Rate Loans. No later than 2:00 p.m.
(New York City time) on the Negotiated Rate Funding Date, each Bank will make
available to the Agent in dollars and immediately available funds at the office
of the Agent at its address set forth on the signature pages hereof the
Negotiated Rate Loan, if any, to be made by such Bank as part of the Negotiated
Rate Borrowing to be made on such date in the manner provided above. Upon
receipt by the Agent of all such funds, the Agent shall disburse to the Company
on such date such Negotiated Rate Loan in like funds at the Company's account
specified in the relevant Negotiated Rate Confirmation. The Agent may, but shall
not be required to, advance on behalf of any Bank such Bank's Negotiated Rate
Loan on a Borrowing Date unless such Bank shall have notified the Agent prior to
such Borrowing Date that it does not intend to make available such Negotiated
Rate Loan on such date. If the Agent makes such advance, the Agent shall be
entitled to recover such amount on demand from the Bank on whose behalf such
advance was made, and if such Bank does not pay the Agent the amount of such
advance on demand, the Company shall promptly repay such amount to the Agent.
Until such amount is repaid to the Agent by such Bank or the Company, such
advance shall be deemed for all purposes to be a Negotiated Rate Loan made by
the Agent. The Agent shall be entitled to recover from the Bank or the Company,
as the case may be, interest on the amount advanced by it for each day from the
Borrowing Date therefor until repaid to the Agent, at a rate per annum equal to
(i) in the case of the Bank, (1) the Federal Funds Rate, for the five-day period
beginning on the Borrowing Date, and (2) the applicable rate on the Loans made
on the Borrowing Date, for the period beginning on the sixth day after the
Borrowing Date, and (ii) in the case of the Company, the applicable rate on the
Loans made on the Borrowing Date.
Section 2.8. Negotiated Rate Notes. The Negotiated Rate Loans of each
Bank shall be evidenced by a Negotiated Rate Note payable to the order of each
Bank. The Negotiated Rate Note of each Bank shall (i) be in the principal amount
of $103,000,000, or such amount less than $103,000,000 as the Company and such
Bank may agree, (ii) be dated not later than the date of the initial Negotiated
Rate Confirmation relating to a Negotiated Rate Loan made by such Bank and (iii)
be stated to mature on the Termination Date as such date may be extended
hereunder and bear interest from its date until maturity on the principal
balance (from time to time outstanding thereunder) payable at the rates and in
the manner provided herein and in the applicable Negotiated Rate Confirmations.
Each Bank is authorized to indicate upon the grid
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attached to its Negotiated Rate Note all Negotiated Rate Loans made by it
pursuant to this Agreement, interest elections and payments of principal and
interest thereon. Such notations shall be presumptive as to the aggregate unpaid
principal amount of all Negotiated Rate Loans made by such Bank, and interest
due thereon, but the failure by any Bank to make such notations or the
inaccuracy or incompleteness of any such notations shall not affect the
obligations of the Company hereunder or under the Negotiated Rate Notes.
Section 2.9. Competitive Bid Loans. On the terms and subject to the
conditions of this Agreement, from time to time on or after the Effective Date
and prior to the Termination Date, the Company may (but is not obligated to)
make requests for Competitive Bids for Competitive Bid Loans and may (but is not
obligated to) accept Competitive Bids and borrow Competitive Bid Loans for a
term that, for each Competitive Bid Loan, is not less than seven days nor more
than 270 days from the Borrowing Date of such Competitive Bid Loan; provided
that the aggregate principal amount of all outstanding Loans shall not at any
time exceed the then Total Commitment.
Section 2.10. Procedure for Competitive Bid Loans.
(a) Competitive Bid Requests. To request Competitive Bids, the
Company shall deliver a written Competitive Bid Request to the Agent not later
than 1:00 p.m., New York City time, on the date not less than one Business Day
prior to the Borrowing Date of the proposed Competitive Bid Borrowing; provided
that (i) the Company may not submit more than one Competitive Bid Request on the
same day and (ii) in lieu of delivering the written Competitive Bid Request
described above, the Company may give the Agent telephonic notice of any request
for Competitive Bids by the time required under this clause (a), provided,
further, that such telephonic notice shall be confirmed by delivery of a written
Competitive Bid Request to the Agent by no later than 3:00 p.m., New York City
time, on the date of such telephonic notice. Each such Competitive Bid Request
shall specify the aggregate amount of the requested Competitive Bid Borrowing,
the proposed Borrowing Date of such Competitive Bid Borrowing, which shall be a
Business Day, the date of maturity of the Competitive Bid Loans that are
requested to be made as part of such Competitive Bid Borrowing, which date shall
be a Business Day occurring on or before the Termination Date, and the Company's
account to which funds are to be disbursed. Promptly following receipt of a
Competitive Bid Request in accordance with this SECTION, the Agent shall notify
the Banks of the details thereof by facsimile, inviting the Banks to submit
Competitive Bids.
(b) Competitive Bids. Each Bank may in its sole and absolute
discretion make one or more Competitive Bids to the Company in response to a
Competitive Bid Request. Each Competitive Bid by a Bank must be substantially in
the form of EXHIBIT G and must be received by the Agent by facsimile not later
than 11:30 a.m., New York City time, on the proposed Borrowing Date of such
Competitive Bid Borrowing. Competitive Bids that do not conform substantially to
the form of EXHIBIT G may be rejected by the Agent, and the Agent shall notify
the applicable Bank as promptly as practicable. Each Competitive Bid shall
specify (i) the principal amount (which shall be the amount of $5,000,000 or in
integral multiples of $1,000,000 in excess thereof and which may equal the
entire principal amount of the Competitive Bid Borrowing requested by the
Company) of the Competitive Bid Loan or Loans that the Bank is willing to make,
(ii) the rate of interest (the "Competitive Bid Rate") at which the Bank is
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prepared to make such Loan (expressed as a percentage rate per annum in the form
of a decimal to no more than four decimal places) and (iii) the term applicable
to each such Competitive Bid Loan and the date of maturity of such Competitive
Bid Loan.
(c) Acceptance/Rejections of Competitive Bids. The Agent shall
promptly notify the Company by facsimile of the Competitive Bid Rate and the
principal amount specified in each Competitive Bid and the identity of the Bank
that shall have made such Competitive Bid. Subject only to the provisions of
this paragraph, the Company may in its sole and absolute discretion accept or
reject any Competitive Bid. The Company shall notify the Agent by telephone,
confirmed by facsimile in a form approved by the Agent, whether and to what
extent it has decided to accept or reject each Competitive Bid not later than
12:30 p.m., New York City time, on the proposed Borrowing Date of the
Competitive Bid Borrowing; provided that (i) the failure of the Company to give
such notice shall be deemed to be a rejection of each Competitive Bid, (ii) the
Company shall not accept a Competitive Bid made at a particular Competitive Bid
Rate if the Company rejects a Competitive Bid made at a lower Competitive Bid
Rate, (iii) the aggregate amount of the Competitive Bids accepted by the Company
shall not exceed the aggregate amount of the requested Competitive Bid Borrowing
specified in the related Competitive Bid Request, (iv) to the extent necessary
to comply with clause (iii) above, the Company may accept Competitive Bids at
the same Competitive Bid Rate in part, which acceptance, in the case of multiple
Competitive Bids at such Competitive Bid Rate, shall be made pro rata in
accordance with the amount of each Competitive Bid and (v) except pursuant to
clause (iv) above, no Competitive Bid shall be accepted for a Competitive Bid
Loan unless such Competitive Bid Loan is in the amount of $5,000,000 or in
integral multiples of $1,000,000 in excess thereof; provided, further, that if a
Competitive Bid Loan must be in an amount less than $5,000,000 because of the
provisions of clause (iv) above, such Competitive Bid Loan may be for an amount
of $1,000,000 or any integral multiple in excess thereof, and in calculating the
pro rata allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (iv) the amounts shall be
rounded to integral multiples of $1,000,000 in a manner determined by the
Company. A notice given by the Company pursuant to this paragraph shall be
irrevocable.
(d) Competitive Bid Confirmation. The Agent shall promptly notify
each bidding Bank by facsimile whether or not its Competitive Bid has been
accepted (and, if so, the amount and Competitive Bid Rate so accepted), and each
successful bidder will thereupon become bound, on the terms and subject to the
conditions of this Agreement, to make the Competitive Bid Loan in respect of
which its Competitive Bid has been accepted.
(e) Competitive Bids by the Agent. If the Agent shall elect to
submit a Competitive Bid in its capacity as a Bank, it shall submit such
Competitive Bid directly to the Company at least one quarter of an hour earlier
than the time by which the other Banks are required to submit their Competitive
Bids to the Agent pursuant to paragraph (b) of this SECTION.
Section 2.11. Funding of Competitive Bid Loans. No later than 2:00 p.m.,
New York City time, on the relevant Borrowing Date, each Bank will make
available to the Agent in dollars and immediately available funds at the office
of the Agent at its address set forth on the signature pages hereof, each
Competitive Bid Loan, if any, to be made by such Bank as part of the Competitive
Bid Borrowing to be made on such date in the manner provided above. Upon
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receipt by the Agent of all such funds, the Agent shall disburse to the Company
on such date such Competitive Bid Loan in like funds at the Company's account
specified in the relevant Competitive Bid Request. The Agent may, but shall not
be required to, advance on behalf of any Bank such Bank's Competitive Bid Loan
on a Borrowing Date unless such Bank shall have notified the Agent prior to such
Borrowing Date that it does not intend to make available such Competitive Bid
Loan on such date. If the Agent makes such advance, the Agent shall be entitled
to recover such amount on demand from the Bank on whose behalf such advance was
made, and if such Bank does not pay the Agent the amount of such advance on
demand, the Company shall promptly repay such amount to the Agent. Until such
amount is repaid to the Agent by such Bank or the Company, such advance shall be
deemed for all purposes to be a Competitive Bid Loan made by the Agent. The
Agent shall be entitled to recover from the Bank or the Company, as the case may
be, interest on the amount advanced by it for each day from the Borrowing Date
therefor until repaid to the Agent, at a rate per annum equal to (i) in the case
of the Bank, (1) the Federal Funds Rate, for the five-day period beginning on
the Borrowing Date, and (2) the applicable rate on the Loans made on the
Borrowing Date, for the period beginning on the sixth day after the Borrowing
Date, and (ii) in the case of the Company, the applicable rate on the Loans made
on the Borrowing Date.
Section 2.12. Competitive Bid Notes. The Competitive Bid Loans of each
Bank shall be evidenced by a Competitive Bid Note payable to the order of each
Bank. The Competitive Bid Note of each Bank shall (i) be in the principal amount
of $103,000,000, (ii) be dated not later than the date of the initial
Competitive Bid Loan made by such Bank and (iii) be stated to mature on the
Termination Date as such date may be extended hereunder and bear interest from
its date until maturity on the principal balance (from time to time outstanding
thereunder) payable at the rates and in the manner provided herein. Each Bank is
authorized to indicate upon the grid attached to its Competitive Bid Note all
Competitive Bid Loans made by it pursuant to this Agreement, interest elections
and payments of principal and interest thereon. Such notations shall be
presumptive as to the aggregate unpaid principal amount of all Competitive Bid
Loans made by such Bank, and interest due thereon, but the failure by any Bank
to make such notations or the inaccuracy or incompleteness of any such notations
shall not affect the obligations of the Company hereunder or under the
Competitive Bid Notes.
Section 2.13. Certain Fees. (a) The Company shall pay to the Agent for
the pro rata account of the Banks during the period from and including the
Effective Date through but excluding the Termination Date a fee (the "Facility
Fee") equal to the Facility Fee Rate per annum (on the basis of a 360-day year
for the actual number of days involved) on the daily average amount of the Total
Commitment during the quarter with respect to which such Facility Fee is being
paid. Such fee shall be payable in arrears on the last day of each calendar
quarter, commencing on the first such date after the Effective Date, on any date
that the Total Commitment is canceled or reduced pursuant to SECTION 2.4 (but
only with respect to the amount of such cancellation or reduction) and on the
Termination Date.
(b) The Company shall pay to the Agent for the pro rata account
of the Banks during the period from and including the Effective Date through but
excluding the Termination Date a fee (the "Utilization Fee") equal to (i) 0.125%
per annum (on the basis of a 360-day year for the actual number of days
involved) on the daily amount during such period of the sum of (1) the aggregate
unpaid principal amount of all Committed Loans plus (2) the aggregate unpaid
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principal amount of all committed loans and the maximum amount available to be
drawn under all issued and outstanding letters of credit (together with the
aggregate amount of all payments made by the issuing bank thereunder that have
not yet been reimbursed by or on behalf of the Company), in each case under the
Revolving Credit Agreement, dated as of November 3, 1999, among the Borrower,
the banks named therein and The Bank of New York, as agent and issuing bank,
provided that such sum is greater than 50% of the sum of the Total Commitments
on such day and the total commitments to make committed or similar loans under
such Revolving Credit Agreement on such day, multiplied by (ii) a fraction, the
numerator of which is the aggregate unpaid principal amount on such day of all
Committed Loans and the denominator of which is the sum of items (1) and (2)
above. Such fee shall be payable in arrears on the last day of each calendar
quarter, commencing on the first such date after the date hereof, and on the
Termination Date.
(c) The Company shall pay to each of the Agent and the Banks, for
its account, fees payable in the amounts and at the times separately agreed upon
between the Company and the Agent or such Bank, as the case may be.
Section 2.14. Optional Prepayment. The Company shall have the right, on
not less than three Business Days' written notice to the Agent, in the case of
Eurodollar Loans, and on not less than one Business Day's written notice to the
Agent, in the case of ABR Loans, Negotiated Rate Loans and Competitive Bid
Loans, to prepay Loans that, in the case of all Loans other than Negotiated Rate
Loans, bear interest on the same basis and having the same Interest Periods, if
any, or terms, as the case may be, in whole or in part, without premium or
penalty, in the aggregate principal amount of $1,000,000 or in integral
multiples of $250,000 in excess thereof (or, if the unpaid principal amount of
such Loan is less than $1,000,000, then all of such lesser amount), together
with accrued interest on the principal being prepaid to the date of prepayment,
the amounts required by SECTION 4.3 and, in the case of Negotiated Rate Loans,
such other compensation as may be agreed to by the Company and the Bank making
such Negotiated Rate Loan and as to which the Company and such Bank shall have
promptly notified the Agent; provided that the Company shall not have the right
to prepay any Negotiated Rate Loan or any Competitive Bid Loan without the prior
written consent of the Bank making such Negotiated Rate Loan or such Competitive
Bid Loan, as the case may be. Subject to the terms and conditions hereof,
prepaid Loans may be reborrowed.
ARTICLE III.
INTEREST, METHOD OF PAYMENT, CONVERSION, ETC.
Section 3.1. Procedure for Interest Rate Determination. (a) Unless the
Company shall request in a Committed Loan Request or in a Conversion/Continuance
Request that the Committed Loans (or portions thereof) bear interest as
Eurodollar Loans, the Committed Loans shall bear interest as ABR Loans.
(b) Each Negotiated Rate Loan shall bear interest at the rate per
annum and subject to change or adjustment, if any, as agreed to by the Company
and the Bank making such Negotiated Rate Loan and as set forth in a Negotiated
Rate Confirmation.
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(c) Each Competitive Bid Loan shall bear interest at the
Competitive Bid Rate applicable to such Competitive Bid Loan.
Section 3.2. Interest on ABR Loans and Competitive Bid Loans. (a)
Interest on ABR Loans. Each ABR Loan shall bear interest from the date of such
ABR Loan until maturity thereof or until such ABR Loan is repaid, or the
beginning of any relevant Interest Period, as the case may be, payable in
arrears on the last day of each calendar quarter of each year, commencing with
the first such date after the date hereof, and on the date such ABR Loan is
repaid, at a rate per annum (on the basis of a 365- or 366-day year for the
actual number of days involved in the case of ABR Loans which accrue interest
based upon the Prime Rate and on the basis of a 360-day year for the actual
number of days involved in the case of ABR Loans which accrue interest based
upon the Federal Funds Rate) equal to the Base Rate in effect from time to time,
which rate shall change as and when said Base Rate shall change.
(b) Interest on Competitive Bid Loans. Each Competitive Bid Loan
shall bear interest from the date of such Competitive Bid Loan until maturity
thereof or until such Competitive Bid Loan is repaid, payable in arrears, with
respect to a term of 90 days or less, on the maturity date of such Competitive
Bid Loan, and with respect to a term of more than 90 days, on the day which is
90 days after the date of such Competitive Bid Loan and the last day of each
subsequent 90-day period thereafter or, if sooner, the maturity date of such
Competitive Bid Loan, at a rate per annum (on the basis of a 360-day year for
the actual number of days involved) equal to the Competitive Bid Rate applicable
to such Competitive Bid Loan.
Section 3.3. Interest on Eurodollar Loans. (a) Each Eurodollar Loan shall
bear interest from the date of such Eurodollar Loan until maturity thereof or
until such Loan is repaid, payable in arrears, with respect to Interest Periods
of three months or less, on the last day of such Interest Period, and with
respect to Interest Periods longer than three months, on the day which is three
months after the commencement of such Interest Period, and on the last day of
such Interest Period, at a rate per annum (on the basis of a 360-day year for
the actual number of days involved), determined by the Agent with respect to
each Interest Period with respect to Eurodollar Loans, equal to the sum of (i)
the Applicable Margin and (ii) LIBOR.
(b) The Interest Period for each Eurodollar Loan shall be
selected by the Company at least three Business Days prior to the beginning of
such Interest Period. If the Company fails to notify the Agent of the Interest
Period for a subsequent Eurodollar Loan at least three Business Days prior to
the last day of the then current Interest Period of an outstanding Eurodollar
Loan, then such outstanding Eurodollar Loan shall become an ABR Loan at the end
of such current Interest Period.
(c) Notwithstanding the foregoing: (i) if any Interest Period for
a Eurodollar Loan would otherwise end on a day which is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless the
result of such extension would be to carry such Interest Period into another
calendar month, in which event such Interest Period shall end on the immediately
preceding Business Day; (ii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Business Day
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of a calendar month; and (iii) no Interest Period for a Eurodollar Loan may
extend beyond the Termination Date.
(d) Eurodollar Loans shall be made by each Bank from its branch
or affiliate identified as its Eurodollar Lending Office on the signature page
hereto, or such other branch or affiliate (with respect to such Bank, its
"Eurodollar Lending Office") as it may hereafter designate to the Company and
the Agent as its Eurodollar Lending Office. A Bank shall not change its
Eurodollar Lending Office designation if it, at the time of the making of such
change, increases the amounts that would have been payable by the Company to
such Bank under this Agreement in the absence of such a change.
Section 3.4. Conversion/Continuance. (a) The Company may request, by
delivery to the Agent of a written Conversion/Continuance Request not less than
three Business Days prior to a requested Conversion/Continuance Date, that all
or portions of the outstanding Committed Loans, in the aggregate amount of
$1,000,000 or in integral multiples of $100,000 in excess thereof (or, if the
aggregate amount of outstanding Loans is less than $1,000,000, then all such
lesser amount), to bear interest from and after the Conversion/Continuance Date
as either ABR Loans or Eurodollar Loans.
(b) Upon receipt of any such Conversion/Continuance Request from
the Company, the Agent shall forthwith give notice to each Bank of the substance
thereof. Effective on such Conversion/Continuance Date and upon payment by the
Company of the amounts, if any, required by SECTION 4.3, the Committed Loans or
portions thereof as to which the Conversion/Continuance Request was made shall
commence to accrue interest as set forth in this ARTICLE for the interest rate
selected by the Company.
(c) In lieu of delivering the above described notice, the Company
may give the Agent telephonic notice hereunder by the required time under this
SECTION; provided that such telephonic notice shall be confirmed by delivery of
a written notice to the Agent by no later than 4:00 p.m., New York City time,
the date of such telephonic notice.
Section 3.5. Post Default Interest. Upon the occurrence and during the
continuation of an Event of Default, all Loans and any unpaid installment of
interest thereon shall bear interest at a rate per annum (on the basis of a
360-day year for the actual number of days involved) equal to the sum of (i) 2%
and (ii) with respect to ABR Loans, the rate of interest then applicable to ABR
Loans, changing as and when said rate shall change; with respect to Eurodollar
Loans, the rate of interest applicable to each such Eurodollar Loan; with
respect to Competitive Bid Loans, the Competitive Bid Rate applicable to each
such Competitive Bid Loan; and, with respect to Negotiated Rate Loans, the
agreed-upon rate of interest applicable to each such Negotiated Rate Loan,
changing as and when said rate shall change if such rate shall be subject to
change. Interest payable pursuant to this SECTION shall be payable on demand.
Section 3.6. Maximum Interest Rate. (a) Nothing in this Agreement or the
Notes shall require the Company to pay interest at a rate exceeding the maximum
rate permitted by applicable law. Neither this SECTION nor SECTION 11.1 is
intended to limit the rate of interest payable for the account of any Bank to
the maximum rate permitted by the laws of the State of
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New York (or any other applicable law) if a higher rate is permitted with
respect to such Bank by supervening provisions of U.S. Federal law.
(b) If the amount of interest payable for the account of any Bank
on any interest payment date in respect of the immediately preceding interest
computation period, computed pursuant to this ARTICLE, would exceed the maximum
amount permitted by applicable law to be charged by such Bank, the amount of
interest payable for its account on such interest payment date shall
automatically be reduced to such maximum permissible amount.
ARTICLE IV.
DISBURSEMENT AND PAYMENT
Section 4.1. Pro Rata Treatment. Each payment of the Facility Fee and the
Utilization Fee and each reduction of the Total Commitment shall be apportioned
among the Banks in proportion to each Bank's Pro Rata Share. Except as provided
in SECTION 4.4 or 4.5, the Committed Notes or portions thereof as to which a
Conversion/Continuance Request has been made pursuant to SECTION 3.4 shall at
all times bear interest on the same basis (as ABR Loans and Eurodollar Loans),
and the Interest Periods applicable thereto, if any, shall be of the same
duration.
Section 4.2. Method of Payment. All payments by the Company hereunder and
under the Committed Notes, the Negotiated Rate Notes and the Competitive Bid
Notes shall be made to the Agent, for its account or for the account of the Bank
or Banks entitled thereto, as the case may be, in lawful money of the United
States and in immediately available funds at the office of the Agent on the date
when due without set-off, counterclaim or other deduction.
Section 4.3. Compensation for Losses.
(a) Compensation. In the event that (i) the Company makes a
prepayment under SECTION 2.14 on a day other than the last day of the Interest
Period for the amount so prepaid, in the case of Eurodollar Loans, or the
scheduled maturity date of the amount so prepaid, in the case of Negotiated Rate
Loans or Competitive Bid Loans, (ii) a Conversion/Continuance Date selected
pursuant to SECTION 3.4 falls on a day other than the last day of the Interest
Period for the amount as to which a conversion is made, (iii) the Company
revokes any notice given under SECTION 2.2 requesting Eurodollar Loans, (iv)
Eurodollar Loans are converted into ABR Loans pursuant to SECTION 4.5 on a day
other than the last day of the Interest Period for the Eurodollar Loans so
converted, (v) Eurodollar Loans, Negotiated Rate Loans or Competitive Bid Loans
shall be declared to be due and payable prior to the scheduled maturity thereof
pursuant to SECTION 8.1, or (vi) the Company shall fail to borrow any
Competitive Bid Loan after accepting the Competitive Bid to make such
Competitive Bid Loan or shall fail to borrow any Negotiated Rate Loan after
delivering the Negotiated Rate Confirmation for such Negotiated Rate Loan in
accordance with SECTION 2.6, the Company shall pay to the Agent for the account
of each Bank promptly after demand by such Bank (with notice to the Agent) an
amount which will compensate such Bank for any costs and losses incurred by such
Bank as a result of such prepayment, revocation of notice, conversion,
declaration or failure to borrow in respect of funds obtained for the purpose of
making or maintaining such Bank's
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Eurodollar Loans, Negotiated Rate Loans or Competitive Bid Loans, as the case
may be, or any part thereof. Such compensation shall include an amount equal to
the excess, if any, of (i) the amount of interest which would have accrued on
the amount so paid or prepaid, declared due and payable, converted, or not
borrowed, for the period from the date of such payment or prepayment or
declaration or conversion or failure to borrow to the last day of the relevant
Interest Period or scheduled maturity date, as the case may be, (or, in the case
of a failure to borrow, the Interest Period that would have commenced on the
date of such failure to borrow or the maturity date that would have been
scheduled for the relevant Negotiated Rate Loan or Competitive Bid Loan, as the
case may be) in each case at the applicable rate of interest for the relevant
Loan provided for herein (excluding, however, the Applicable Margin included
therein) over (ii) the amount of interest (as reasonably determined by such
Bank) which would have accrued to such Bank on such amount by placing such
amount on deposit for a comparable period with leading banks in the London
interbank market, in the case of Eurodollar Loans, or the rate of interest (as
reasonably determined by such Bank) which would have been quoted by such Bank
with respect to such amount for a comparable period, in all other cases.
(b) Certificate, Etc. Each Bank shall promptly notify the
Company, with a copy to the Agent, upon becoming aware that the Company may be
required to make any payment pursuant to this SECTION. When requesting payment
pursuant to this SECTION, each Bank shall provide to the Company, with a copy to
the Agent, a certificate, signed by an officer of such Bank, setting forth the
amount required to be paid by the Company to such Bank and the computations made
by such Bank to determine such amount. In the absence of manifest error, such
certificate shall be conclusive and binding on the Company as to the amount so
required to be paid by the Company to such Bank.
(c) Participants. Subject to SECTION 11.8(e), each Participant
shall be deemed a "Bank" for the purposes of this SECTION.
Section 4.4. Withholding, Additional Costs and Capital Adequacy
(a) Withholding. To the extent permitted by law, all payments
under this Agreement and under the Notes (including payments of principal and
interest) shall be payable to each Bank free and clear of any and all present
and future taxes, levies, imposts, duties, deductions, withholdings, fees,
liabilities and similar charges (collectively, the "Taxes"); provided that
"Taxes" shall not include taxes imposed on or measured by the overall net income
of any Bank by the United States of America or any political subdivision or
taxing authority thereof or therein, or taxes on or measured by the overall net
income of any foreign office, branch or subsidiary of such Bank by any foreign
country or subdivision thereof in which such office, branch or subsidiary is
doing business. If any Taxes are required to be withheld or deducted from any
amount payable under this Agreement or any Note, then the amount payable under
this Agreement or such Note shall be increased to the amount which, after
deduction from such increased amount of all Taxes required to be withheld or
deducted therefrom, will yield to such Bank the amount stated to be payable
under this Agreement or such Note. The Company shall execute and deliver to any
Bank upon its request such further instruments as may be necessary or desirable
to give full force and effect to any such increase, including a new Note of the
Company to be issued in exchange for any Note theretofore issued. If any of the
Taxes specified in this SECTION are paid by any Bank, the Company shall, not
later than 10 days after
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demand of such Bank (with a copy to the Agent), make payment to the Agent for
the account of such Bank to reimburse such Bank for such payments, together with
any interest, penalties and expenses incurred in connection therewith, plus
interest thereon commencing 10 days after such demand at a rate per annum (based
on a 360-day year for the actual number of days involved) equal to the sum of 2%
and the interest rate then applicable to ABR Loans, changing as and when such
rate shall change, from the date such payment or payments are made by such Bank
to the date of reimbursement by the Company; provided, however, that the Company
shall not be required to indemnify any Bank or Participant for penalties and
expenses that result from the gross negligence or willful misconduct of such
Bank or Participant. The Company shall deliver to the Agent certificates or
other valid vouchers for all Taxes or other charges deducted from or paid with
respect to payments made by the Company hereunder. Notwithstanding the
foregoing, the Company shall be entitled, to the extent it is required to do so
by law, to deduct or withhold (and shall not be required to make payments as
otherwise required in this SECTION on account of such deductions or
withholdings) income or other similar taxes imposed by the United States of
America from interest, fees or other amounts payable hereunder for the account
of any Bank other than a Bank (i) who is a U.S. Person for U.S. Federal income
tax purposes or (ii) who has the Prescribed Forms on file with the Company for
the applicable year to the extent deduction or withholding of such taxes is not
required as a result of such filing of such Prescribed Forms; provided that if
the Company shall so deduct or withhold any such taxes, it shall provide a
statement to the Agent and such Bank, setting forth the amount of such taxes so
deducted or withheld, the applicable rate and any other information or
documentation which such Bank may reasonably request for assisting such Bank to
obtain any allowable credits or deductions for the taxes so deducted or withheld
in the jurisdiction or jurisdictions in which such Bank is subject to tax.
(b) Additional Costs. If, after the date hereof, any change in
any law or regulation or in the interpretation thereof by any court or
administrative or governmental authority charged with the administration thereof
or the enactment of any law or regulation shall either (i) impose, modify or
deem applicable any reserve, special deposit or similar requirement against the
Banks' Commitments or the Loans or (ii) impose on any Bank any other condition
regarding this Agreement, the Notes, its Commitment or the Loans and the result
of any event referred to in subclause (i) or (ii) of this clause (b) shall be to
increase the cost to any Bank of maintaining its Commitment or the Loans (which
increase in cost shall be calculated in accordance with each Bank's reasonable
averaging and attribution methods) by an amount which any such Bank deems to be
material, then, upon written demand by such Bank (with a copy to the Agent), the
Company shall pay to the Agent for the account of such Bank within 10 days of
such written demand an amount equal to such increase in cost; provided that in
respect of any Loan, no such compensation shall be payable to the extent that,
in the reasonable opinion of such Bank, the interest rate on the Loans has been
adjusted to account for such increased cost. Such amount shall bear interest,
commencing 10 days after receipt by the Company of such demand until payment in
full thereof, at a rate per annum (based on a 360-day year, for the actual
number of days involved) equal to the sum of 2% and the interest rate then
applicable to ABR Loans, changing as and when such rate shall change.
(c) Capital Adequacy. If any Bank shall have determined that the
adoption of any applicable law, rule, regulation or guideline regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental
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authority, central bank or comparable agency charged with the interpretation or
administration thereof (including any such adoption or change made prior to the
date hereof but not effective until after the date hereof), or compliance by any
Bank with any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on capital
for any such Bank or any corporation controlling such Bank as a consequence of
its obligations under this Agreement to a level below that which such Bank or
such corporation could have achieved but for such adoption, change or compliance
(taking into consideration such Bank's or such corporation's policies with
respect to capital adequacy), then from time to time, not later than 10 days
after written demand by such Bank (with a copy to the Agent), the Company shall
pay to the Agent for the account of such Bank such additional amount or amounts
as will compensate such Bank or such corporation for such reduction, plus
interest thereon commencing 10 days after receipt by the Company of such written
demand at a rate per annum (based on a 360-day year, for the actual number of
days involved) equal to the sum of 2% and the interest rate then applicable to
ABR Loans, changing as and when such rate shall change, from the date of such
demand by such Bank to the date of payment by the Company.
(d) Lending Office Designations. Before giving any notice to the
Company pursuant to this SECTION, each Bank shall, if possible, designate a
different lending office if such designation will avoid the need for giving such
notice and will not, in the judgment of such Bank, be otherwise disadvantageous
to such Bank.
(e) Certificate, Etc. Each Bank shall promptly notify the
Company, with a copy to the Agent, upon becoming aware that the Company may be
required to make any payment pursuant to this SECTION. When requesting payment
pursuant to this SECTION, each Bank shall provide to the Company, with a copy to
the Agent, a certificate, signed by an officer of such Bank, setting forth the
amount required to be paid by the Company to such Bank and the computations made
by such Bank to determine such amount. Determinations and allocations by such
Bank for purposes of this SECTION shall be conclusive, provided that such
determinations and allocations are made on a reasonable basis and are
mathematically accurate. Allocations shall not be deemed reasonable unless made
ratably, to the extent practical, to all of the affected Bank's or controlling
corporation's assets, commitments, activities or other relevant aspects of such
Bank's or controlling corporation's business. In the absence of manifest error,
such certificate shall be conclusive and binding on the Company as to the amount
so required to be paid by the Company to such Bank.
(f) Participants. Subject to SECTION 11.8(e), each Participant
shall be deemed a "Bank" for the purposes of this SECTION.
Section 4.5. Unavailability. If at any time any Bank shall have
determined in good faith (which determination shall be conclusive) that the
making or maintenance of all or any part of such Bank's Eurodollar Loans has
been made impracticable or unlawful because of compliance by such Bank in good
faith with any law or guideline or interpretation or administration thereof by
any official body charged with the interpretation or administration thereof or
with any request or directive of such body (whether or not having the effect of
law), because U.S. dollar deposits in the amount and requested maturity of such
Eurodollar Loans are not available to the Bank in the London Eurodollar
interbank market, or because of any other
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reason, then the Agent, upon notification to it of such determination by such
Bank, shall forthwith advise the other Banks and the Company thereof. Upon such
date as shall be specified in such notice and until such time as the Agent, upon
notification to it by such Bank, shall notify the Company and the other Banks
that the circumstances specified by it in such notice no longer apply, (i)
notwithstanding any other provision of this Agreement, such Eurodollar Loans
shall automatically and without requirement of notice by the Company be
converted to ABR Loans and (ii) the obligation of only such Bank to allow
borrowing, elections and renewals of Eurodollar Loans shall be suspended, and,
if the Company shall request in a Committed Loan Request or
Conversion/Continuance Request that such Bank make a Eurodollar Loan, the loan
requested to be made by such Bank shall instead be made as an ABR Loan.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Section 5.1. Representations and Warranties. As of each Compliance Date,
the Company represents and warrants to the Banks that:
(a) Subsidiaries. On the Effective Date, the Company has no
Subsidiaries and is a participant in no joint ventures other than as listed on
SCHEDULE 5.1(a).
(b) Good Standing and Power. The Company is duly organized and
validly existing and in good standing under the laws of the State of Maryland;
and the Company has the power to own its property and to carry on its business
as now being conducted and is duly qualified to do business and is in good
standing in each jurisdiction in which the character of the properties owned or
leased by it therein or in which the transaction of its business makes such
qualification necessary, except where the failure to be so qualified or to be in
good standing, individually or in the aggregate, would not have a Material
Adverse Effect. Each of the corporate Subsidiaries are corporations, each duly
organized and validly existing under the laws of the jurisdiction of its
incorporation; each other Subsidiary is an entity duly organized and validly
existing under the laws of the jurisdiction of its organization; and each
Subsidiary has the power to own its property and to carry on its business as now
being conducted and is duly qualified to do business and is in good standing in
each jurisdiction in which the character of the properties owned or leased by it
therein or in which the transaction of its business makes such qualification
necessary, except where the failure to be so organized, existing, qualified, or
to be in good standing, individually or in the aggregate, would not have a
Material Adverse Effect.
(c) Corporate Authority. The Company has full corporate power and
authority to execute, deliver and perform its obligations under each of the
Credit Documents, to make the borrowings contemplated hereby, and to execute and
deliver the Notes and to incur the obligations provided for herein and therein,
all of which have been duly authorized by all proper and necessary corporate
action. No consent or approval of stockholders is required as a condition to the
validity or performance by the Company of its obligations under any of the
Credit Documents.
(d) Authorizations. All authorizations, consents, approvals,
registrations, notices, exemptions and licenses with or from Governmental
Authorities and other Persons
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which are necessary for the borrowings hereunder, the execution and delivery of
the Credit Documents, the performance by the Company of its obligations
hereunder and thereunder have been effected or obtained and are in full force
and effect.
(e) Binding Agreements. This Agreement constitutes, and the
Notes, when executed and delivered pursuant hereto for value received will
constitute, the valid and legally binding obligations of the Company enforceable
in accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
(f) Litigation. There are no proceedings pending or, so far as
the officers of the Company know, proceedings or investigations threatened
before any court or arbitrator or before or by any Governmental Authority which,
in any one case or in the aggregate, if determined adversely to the interests of
the Company or any of the Subsidiaries, would have a Material Adverse Effect or
relates to any Credit Document or the lending transactions contemplated hereby
and by the other Credit Documents.
(g) No Conflicts. There is no statute, regulation, rule, order
or judgment, and no provision of any material agreement or instrument binding on
the Company or any of the Subsidiaries, or affecting their respective properties
and no provision of the certificate of incorporation, by-laws, governing
partnership agreement or other organizational document of the Company or any of
the Subsidiaries, which would prohibit, conflict with or in any way prevent the
execution, delivery, or performance of the terms of the Credit Documents or the
lending transactions contemplated hereby and by the other Credit Documents, or
the incurrence of the obligations provided for in the Credit Documents, or
result in or require the creation or imposition of any Lien on any of the
Company's or the Subsidiaries' properties as a consequence of the execution,
delivery and performance of any Credit Document or the lending transactions
contemplated hereby and by the other Credit Documents.
(h) Financial Condition. (i) The consolidated balance sheet of
the Company and the Subsidiaries as of December 31, 1998, together with
consolidated statements of income, stockholders' equity and cash flows for the
fiscal year then ended, certified by Arthur Andersen & Co., heretofore delivered
to the Agent and the Banks, fairly present the consolidated financial condition
of the Company and the Subsidiaries and the results of their operations as of
the dates and for the periods referred to and have been prepared in accordance
with GAAP consistently applied throughout the periods involved. As of the
Effective Date, there are no material liabilities, direct or indirect, fixed or
contingent, of the Company or any of the Subsidiaries as of the dates of such
balance sheet which are not reflected therein or in the notes thereto.
(ii) The unaudited consolidated balance sheets of the
Company and the Subsidiaries as of March 31, 1999 and June 30, 1999,
together with unaudited and consolidated statements of income for the
three month and six month periods then ended and the unaudited statements
of cash flows for the three months and six months, respectively, then
ended, heretofore delivered to the Agent and the Banks, fairly present
the consolidated financial condition of the Company and the Subsidiaries
and the results of their operations as of the dates and for the periods
referred to and have been prepared in accordance with GAAP consistently
applied throughout the periods involved, subject
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to the omission or curtailment of footnotes. As of the Effective Date,
there are no material liabilities, direct or indirect, fixed or
contingent, of the Company and any of the Subsidiaries as of the dates of
such balance sheets which are not reflected therein or in the notes
thereto.
(iii) The unaudited pro forma combined balance sheets of
the Company as of June 30, 1999, together with the unaudited pro forma
combined statements of income of the Company for the related periods
ending June 30, 1999, in each case after giving effect to the Initial
Transactions, heretofore delivered to the Agent and the Banks, fairly
present the pro forma consolidated financial condition of the Company and
the Subsidiaries and the results of their operations as of the dates and
for the periods referred to (in each case after giving effect to the
Initial Transactions). As of the Effective Date, there are no material
liabilities, direct or indirect, fixed or contingent, of the Company and
any of the Subsidiaries as of the dates of such financial statements
which are not reflected therein or in the notes thereto.
(iv) Since June 30, 1999, there has been no Material
Adverse Change.
(v) Since June 30, 1999, there has not occurred any
fact, event or condition which could have a Material Adverse Effect from
that reflected in the pro forma financial statements referred to in
clause (iii) above.
(i) Taxes. Each of the Company and the Subsidiaries has filed or
caused to be filed all tax returns which are required to be filed and has paid
all taxes required to be shown to be due and payable on said returns or on any
assessment made against it or any of its property and all other taxes,
assessments, fees, liabilities, penalties or other charges imposed on it or any
of its property by any Governmental Authority, except for any taxes,
assessments, fees, liabilities, penalties or other charges (1) which are being
contested in good faith and for which adequate reserves (in accordance with
GAAP) have been established or (2) of which the failure to file or pay would
not, individually or in the aggregate, be material and adverse to the Company
and the Subsidiaries, taken as a whole.
(j) Use of Proceeds. The proceeds of the Loans will be used by
the Company to consummate the Initial Transactions and for other general
corporate purposes.
(k) Margin Regulations. No part of the proceeds of any Loan will
be used to purchase or carry, or to reduce or retire or refinance any credit
incurred to purchase or carry, or extend credit to others for the purpose of
purchasing or carrying, any "margin stock" as defined in Regulation U of the
Board of Governors of the Federal Reserve System.
(l) No Material Misstatements. All written information relating
to the Company and the Subsidiaries heretofore delivered by the Company and the
Subsidiaries to the Agent or any Bank in connection with the Credit Documents is
complete and correct in all material respects for the purposes for which such
information was delivered.
(m) Title to Properties; Possession Under Leases. The Company
and the Subsidiaries each have good and marketable title to, or valid leasehold
interests in, all properties and assets reflected on the consolidated balance
sheet of the Company as of December 31, 1998,
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referred to in SECTION 5.1(h), except for (i) such properties and assets as have
been disposed of in the ordinary course of business or as would have been
permitted by this Agreement if then in effect since the date of such financial
statements, (ii) minor defects in title that do not interfere with the ability
of the Company or any of such Subsidiaries to conduct its business as now
conducted and (iii) such other items as would not, individually or in the
aggregate, be material and adverse to the Company and the Subsidiaries, taken as
a whole. All such assets and properties are free and clear of all Liens, except
Liens permitted pursuant to this Agreement.
(n) Leases. Except as could not, in any one case individually or
all cases in the aggregate, have a Material Adverse Effect, (i) there are no
renewal or extension options applicable to any lease to which the Company or any
Subsidiary is a party; (ii) to the Company's knowledge, no condition exists
which, with the giving of notice or the passage of time, or both, would permit
any lessee to cancel its obligations under any lease to which the Company or any
Subsidiary is a party; (iii) the Company has received no notice that any lessee
intends to cease operations at any leased property prior to the expiration of
the term of the applicable lease (other than temporarily due to casualty,
remodeling, renovation or any similar cause); and (iv) to the Company's
knowledge, none of the lessees or their sub-lessees, if any, under any of the
leases to which the Company or any Subsidiary is a party is the subject of any
bankruptcy, reorganizations, insolvency or similar proceeding.
(o) Conduct of Business. At the Effective Date, the Company and
the Subsidiaries hold all authorizations, consents, approvals, registrations,
franchises, licenses and permits with or from Governmental Authorities and other
Persons as are required or necessary for them to own their properties and
conduct their business as now conducted, except for any authorizations,
consents, approvals, registrations, franchises, licenses and permits, of which
the failure to hold would not, individually or in the aggregate, be material and
adverse to the Company and the Subsidiaries, taken as a whole.
(p) Compliance with Laws and Charter Documents. Neither the
Company nor any Subsidiary thereof is in violation of (a) any law, statute,
rule, regulation or order of any Governmental Authority (including Environmental
Laws) applicable to it or its properties or assets or (b) its certificate of
incorporation, by-laws, governing partnership agreement or other organizational
document, except for any such violation as would not, individually or in the
aggregate, be material and adverse to the Company and the Subsidiaries, taken as
a whole.
(q) ERISA. (i) Neither the Company nor any ERISA Affiliate has
engaged in a non-exempt prohibited transaction (as defined in Section 4975 of
the Code or Section 406 of ERISA).
(ii) Except those items that would not, individually or
in the aggregate, be material and adverse to the Company and the
Subsidiaries, taken as a whole, no Single-Employer Plan had an
accumulated funding deficiency, whether or not waived, as of the last day
of the most recent fiscal year of such Plan ended prior to the Effective
Date and neither the Company nor any ERISA Affiliate is (1) required to
give security to any Single-Employer Plan pursuant to Section 401(a)(29)
of the Code or Section 307 of ERISA, or (2) subject to a lien in favor of
such a Plan under Section 302(f) of ERISA.
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(iii) Except those items that would not, individually or
in the aggregate, be material to the Company and the Subsidiaries, taken
as a whole, no liability under Section 4062, 4063, 4064 or 4069 of ERISA
has been or is expected by the Company to be incurred by the Company or
any ERISA Affiliate with respect to any Single-Employer Plan and neither
the Company nor any ERISA Affiliate has incurred or expects to incur any
withdrawal liability with respect to any Plan which is a multiemployer
plan (as defined in Section 4001(a)(3) of ERISA).
(iv) Except those items that would not, individually or
in the aggregate, be material to the Company and the Subsidiaries, taken
as a whole, under each Single-Employer Plan, as of the last day of the
most recent plan year ended prior to the Effective Date, the actuarially
determined present value of all benefit liabilities (as determined on the
basis of the actuarial assumptions contained in the Plan's most recent
actuarial valuation) did not exceed the fair market value of the asset of
such Plan by more than $1,000,000, and there has been no material change
in the financial condition of the Plan since the last day of the most
recent plan year.
(v) Insofar as the representations and warranties of
the Company and its ERISA Affiliates contained in clauses (i) and (ii)
above relate to any Plan which is a multiemployer plan, such
representations and warranties are made to the best knowledge of the
Company and its ERISA Affiliates. As used in this SECTION, (1)
"accumulated funding deficiency" shall have the meaning assigned to such
term in Section 412 of the Code and Section 302 of ERISA; (2)
"multiemployer plan" and "plan year" shall have the respective meanings
assigned to such terms in Section 3 of ERISA; (3) "benefit liabilities"
shall have the meaning assigned to such term in Section 4001 of ERISA;
(4) "taxable period" shall have the meaning assigned to such term in
Section 4975 of the Code; and (5) "withdrawal liability" shall have the
meaning assigned to such term in Part 1 of Subtitle E of Title IV of
ERISA.
(r) Not an Investment Company. Neither the Company nor any of
the Subsidiaries is or, after giving effect to the transactions contemplated
hereby will be, an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
(s) Environmental Matters. Except as could not, individually or
in the aggregate, have a Material Adverse Effect, (i) the businesses as
presently or formerly engaged in by the Company and the Subsidiaries are and
have been conducted in compliance in all material respects with all applicable
Environmental Laws, including having required permits, licenses and other
approvals and authorizations, during the time the Company and the Subsidiaries
engaged in such businesses, (ii) the properties presently or formerly owned or
operated by the Company and the Subsidiaries (including soil, groundwater or
surface water on, under or adjacent to the properties, and buildings thereon)
(the "Properties") do not, to the Company's knowledge, contain any Hazardous
Substance in violation of applicable Environmental Law (provided, however, that
with respect to Properties formerly owned or operated by the Company or any
Subsidiary, such representation is limited to the period the Company or such
Subsidiary owned or operated such Properties), (iii) the Company has not
received any notices, demand letters or request for information from any
Federal, state, local or foreign governmental entity or any third
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party indicating that the Company may be in violation of any Environmental Law
in connection with the ownership or operation of the Company's businesses, (iv)
there are no civil, criminal or administrative actions, suits, demands, claims,
hearings, investigations or proceedings pending or, to the Company's knowledge,
threatened against the Company or any Subsidiary with respect to the Company or
any Subsidiary or the Properties relating to any violation, or alleged
violation, of, or liability under, any Environmental Law, (v) no reports have
been filed, or, to the Company's knowledge, are required to be filed, by the
Company or any Subsidiary concerning the release of any Hazardous Substance or
the threatened or actual violation of any Environmental Law on or at the
Properties, (vi) to the Company's knowledge, no Hazardous Substance has been
disposed of, transferred, released or transported from any of the Properties
during the time such Property was owned or operated by the Company or the
Subsidiaries in violation of applicable Environmental Law as in effect at the
time of said activities, (vii) there have been no environmental investigations,
studies, audits, tests, reviews or other analyses conducted by or which are in
the possession of the Company relating to the Company or any Subsidiary or the
Properties which have not been delivered to the Banks prior to the Effective
Date, (viii) there are no underground storage tanks on, in or under any of the
Properties and no underground storage tanks have been closed or removed from any
Properties which are or have been in the ownership of the Company or any
Subsidiary (provided, however, that with respect to Properties formerly owned or
operated by the Company or any Subsidiary, the representations in this clause
(viii) are limited to the period the Company owned or operated such Properties),
(ix) there is no friable asbestos present in any Property presently owned or
operated by the Company or any Subsidiary, and no asbestos has been removed from
any Property while such Property was owned or operated by the Company, (x) none
of the Properties has been used at any time by the Company or any Subsidiary as
a sanitary landfill or hazardous waste disposal site and (xi) neither the
Company nor any Subsidiary has incurred, and, to the Company's knowledge, none
of the Properties are presently subject to, any material liabilities (fixed or
contingent) relating to any suit, settlement, court order, administrative order,
judgment or claim asserted or arising under any Environmental Law.
(t) Insurance. All of the properties (other than properties
leased to other Persons) and operations of the Company and the Subsidiaries of a
character usually insured by companies of established reputation engaged in the
same or a similar business similarly situated are adequately insured, by
financially sound and reputable insurers, against loss or damage of the kinds
and in amounts customarily insured against by such Persons, and the Company and
the Subsidiaries carry, with such insurers in customary amounts, such other
insurance as is usually carried by companies of established reputation engaged
in the same or a similar business similarly situated.
(u) Year 2000. The Company and each of the Subsidiaries have
taken all necessary action to complete in all material respects the
reprogramming of computer software, hardware and firmware systems and equipment
containing embedded microchips owned or operated by or for the Company and the
Subsidiaries required as a result of the Year 2000 Issue to permit the proper
functioning of such computer systems and other equipment and the testing of such
systems and equipment, as so reprogrammed, other than action for which the
failure to complete would not have a Material Adverse Effect. The Company and
the Subsidiaries are undertaking reasonable efforts to assess the efforts of its
investment banks, commercial banks, primary lessees and major vendors to deal
with the Year 2000 Issue. The costs to the Company
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and the Subsidiaries of any reprogramming required as a result of the Year 2000
Issue to permit the proper functioning of the systems and equipment of the
Company and the Subsidiaries and the proper processing of data and the testing
of such reprogramming are not reasonably expected to result in an Event of
Default or to have a Material Adverse Effect on the business, properties,
condition (financial or otherwise) or operations of the Company and the
Subsidiaries, taken as a whole. The "Year 2000 Issue" shall mean the failure of
computer software, hardware and firmware systems and equipment containing
embedded computer chips to properly receive, transmit, process, manipulate,
store, retrieve, retransmit or in any other way utilize data and information due
to the occurrence of the year 2000 or the inclusion of dates on or after January
1, 2000.
(v) AHPI Merger Documents. As of the Effective Date, all the
representations, warranties and certifications contained in each AHPI Merger
Document shall be true and correct in all material respects with the same effect
as though such representations, warranties and certifications had been made on
the Effective Date.
ARTICLE VI.
CONDITIONS OF LENDING
Section 6.1. Conditions to the Availability of the Commitment. The
obligations of each Bank hereunder are subject to, and the Banks' Commitments
shall not become available from the date hereof until the date (the "Effective
Date") on which, each of the following conditions shall have been satisfied or
waived in accordance with SECTION 11.4, and upon such satisfaction or waiver
each Bank will give a written confirmation of the same to the Company on
request:
(a) Credit Agreement. The Agent shall have received this
Agreement duly executed and delivered by each of the Banks and the Company.
(b) Notes. The Agent on behalf of each Bank shall have received
Committed Notes in maximum stated principal amounts equal to each such Bank's
Commitment, and Negotiated Rate Notes and Competitive Bid Notes in maximum
stated principal amounts equal to the Total Commitment, each duly executed and
delivered by the Company.
(c) Good Standing Certificates. The Agent on behalf of the Banks
shall have received from the Company copies of good standing certificates, dated
within a reasonable period of time prior to the Effective Date, confirming the
Company's representation as to good standing in SECTION 5.1(b) with respect to
the States of Maryland and California.
(d) Secretary's Certificate. The Agent on behalf of the Banks
shall have received from the Company a certificate from the Secretary or
Assistant Secretary of the Company, dated as of the Effective Date, (i)
certifying the incumbency of the officers executing the Credit Documents and all
related documentation, (ii) attaching and certifying the resolutions of the
Board of Directors of the Company relating to the execution, delivery and
performance of this Agreement, and (iii) attaching and certifying the Articles
of Incorporation and By-laws of the Company.
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(e) Opinion of Company Counsel. The Agent shall have received a
favorable written opinion, dated the Effective Date, of Latham & Watkins,
special counsel for the Company, in substantially the form of EXHIBIT I, and of
Ballard Spahr Andrews & Ingersoll, LLP, special Maryland counsel for the
Company, in substantially the form of EXHIBIT J.
(f) Initial Transactions. The Agent on behalf of the Banks shall
have received from the Company (i) a certificate from an authorized executive
officer of the Company, dated as of the Effective Date, certifying that,
substantially simultaneous with the Initial Loan, each of the Initial
Transactions shall have been consummated, and attaching a true, complete and
correct copy of each AHPI Merger Document, which shall be in form and substance
reasonably satisfactory to the Agent and the Banks, and (ii) other evidence
reasonably satisfactory to the Agent that the transactions described in clause
(ii) of the definition of "Initial Transactions" shall have been consummated.
(g) Other Documents. The Agent shall have received such other
certificates and documents as the Agent and the Banks reasonably may require.
(h) Litigation. There shall not be pending or threatened any
action or proceeding before any court or administrative agency relating to any
Credit Document, any AHPI Merger Document, the Initial Transactions or the other
lending transactions contemplated by the Credit Documents which, in the judgment
of the Agent or any Bank, could materially impair the ability of the Company to
perform its obligations under the Credit Documents or the AHPI Merger Documents.
(i) Certain Fees and Expenses. The Agent shall have received (i)
those certain fees that are payable as described in SECTION 2.13 and (ii) those
fees and expenses of counsel to the Agent and the Lead Arranger and Book
Manager, as described in SECTION 11.3, that have been incurred up to the date
hereof and of which the Agent has given the Company notice.
Notwithstanding the foregoing, the obligations of each Bank hereunder shall not
become effective, and the Banks' Commitments shall not become available, unless
each of the foregoing conditions is satisfied or waived in writing by each of
the Banks at or prior to 3:00 p.m., New York City time, on November 30, 1999
(and, in the event such conditions are not so satisfied or waived, all of the
Commitments shall terminate at such time).
Section 6.2. Conditions to All Loans. The obligations of each Bank in
connection with each Loan (including the Initial Loan) are subject to the
conditions that, on the date of each such Loan and after giving effect thereto,
each of the following conditions shall have been satisfied or waived in
accordance with SECTION 11.4, and upon such satisfaction or written waiver each
Bank will give a written confirmation of the same to the Company on request:
(a) Committed Loan Request/Negotiated Rate
Confirmation/Competitive Bid Request. (i) For each Committed Loan, the Agent
shall have received a Committed Loan Request in substantially the form of
EXHIBIT B. (ii) For each Negotiated Rate Borrowing, the Agent shall have
received a Negotiated Rate Confirmation in substantially the form of EXHIBIT D.
(iii) For each Competitive Bid Loan, the Agent shall have received a Competitive
Bid Request
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in substantially the form of EXHIBIT F and such other documents required to be
provided or executed by the Company pursuant to SECTIONS 2.9 to 2.12.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing, and the Agent shall have received from the Company a
certificate to that effect signed by an authorized officer of the Company.
(c) Representations and Warranties; Covenants. The
representations and warranties contained in ARTICLE V (other than
representations and warranties that speak as of a specific date) shall be true
and correct with the same effect as though such representations and warranties
had been made at the time of such Loan, and the Agent shall have received from
the Company a certificate to that effect signed by an authorized officer of the
Company.
ARTICLE VII.
COVENANTS
Section 7.1. Affirmative Covenants. Until the Termination Date, and
thereafter until payment in full of the Notes and performance of all other
obligations of the Company hereunder (other than Unmatured Surviving
Obligations), the Company will:
(a) Financial Statements; Compliance Certificates. Furnish to the
Agent and to each Bank (i) as soon as available, but in no event more than 60
days following the end of each fiscal quarter, copies of all consolidated
quarterly balance sheets, income statements and other financial statements and
reports of the Company and the Subsidiaries, prepared in a format and in scope
consistent with the financial statements and reports of the Company referenced
in SECTION 5.1(h), (ii) as soon as available, but in no event more than 105 days
following the end of each fiscal year, a copy of the annual consolidated audit
report and financial statements relating to the Company and the Subsidiaries,
certified by Arthur Andersen & Co., one of the other "Big Five" accounting firms
or another independent certified public accountant reasonably satisfactory to
the Agent, prepared in a format and in scope consistent with the December 31,
1998 financial statements and reports of the Company referenced in SECTION
5.1(h), (iii) as soon as available, but in no event later than 60 days following
the end of each fiscal year, an annual forecast for the then-current fiscal
year, prepared in a manner and in the form of the forecast provided on the date
of this Agreement or in such other form as is reasonably acceptable to the Agent
and the Required Banks, (iv) together with each of the financial statements
delivered pursuant to clauses (i) and (ii) of clause (a), a certificate of the
Chief Financial Officer of the Company stating whether as of the last date of
such financial statements any event or circumstance exists which constitutes a
Default or Event of Default and, if so, stating the facts with respect thereto,
together with calculations, where applicable, which establish the Company's (and
where applicable, each of the Company's Subsidiaries') compliance therewith, (v)
promptly upon receipt thereof, copies of any reports and management letters
submitted to the Company or any of the Subsidiaries or their accountants in
connection with any annual or interim audit of the books of the Company or the
Subsidiaries, together with the responses thereto, if any, and (vi) such
additional information, reports or statements as the Agent and the Banks from
time to time may reasonably request.
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(b) Taxes. Pay and discharge, and cause each of the Subsidiaries
to pay and discharge, all taxes, assessments and governmental charges upon it,
its income and its properties prior to the date on which penalties are attached
thereto, (i) unless and to the extent that (1) such taxes, assessments and
governmental charges shall be contested in good faith and by appropriate
proceedings by the Company or such Subsidiary, as the case may be, (2) adequate
reserves (in accordance with GAAP) are maintained by the Company or such
Subsidiary, as the case may be, with respect thereto, and (3) any failure to pay
and discharge such taxes, assessments and governmental charges could not have a
Material Adverse Effect or (ii) unless and to the extent that any failure to pay
and discharge such taxes, individually or in the aggregate, would not be
material and adverse to the Company and the Subsidiaries, taken as a whole.
(c) Corporate Existence. Except as permitted by SECTION 7.2(d) or
(e), maintain, and cause each of the Subsidiaries to maintain, its existence in
good standing and qualify and remain qualified to do business in each
jurisdiction in which the character of the properties owned or leased by it
therein or in which the transaction of its business is such that the failure to
maintain such existence or to qualify would have a Material Adverse Effect.
(d) Maintenance of Records. Will maintain, and will cause each of
the Subsidiaries to maintain, complete and accurate books and records in which
full and correct entries in conformity with GAAP shall be made of all dealings
and transactions in its respective business and activities.
(e) Inspection. Permit, and cause each of the Subsidiaries to
permit, the Agent and the Banks to have one or more of their officers and
employees, or any other Person designated by the Agent or the Banks, visit and
inspect any of the properties of the Company and the Subsidiaries (upon
reasonable request and notice and in accordance with the agreement, if any,
relating to any such property) and to examine the minute books, books of account
and other records of the Company and the Subsidiaries and make copies thereof or
extracts therefrom, and discuss its affairs, finances and accounts with its
officers and, at the request of the Agent or the Banks, with the Company's
independent accountants, during normal business hours and at such other
reasonable times and as often as the Agent or the Banks reasonably may desire.
(f) Conduct of Business. Engage in as its principal business
investing in health care related facilities in the United States.
(g) Notification of Defaults and Adverse Developments. Notify the
Agent (i) promptly, and in any event not later than five Business Days after the
discovery by any officer of the Company, of the occurrence of any Default or
Event of Default; (ii) promptly, and in any event not later than five Business
Days after the discovery by any officer of the Company, of the occurrence of a
Material Adverse Change; (iii) promptly, and in any event not later than ten
Business Days after the discovery by any officer of the Company, of any material
litigation or proceedings that are instituted or (to the knowledge of any
officer of the Company) threatened against the Company or the Subsidiaries or
any of their respective assets and (iv) promptly, and in any event not later
than five Business Days after the discovery by any officer of the Company, of
the occurrence of each and every event which would be an event of default (or an
event which with the giving of notice or lapse of time or both would be an event
of default) under any Indebtedness of the Company or any of the Subsidiaries in
a principal amount in excess of
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$5,000,000, such notice to include the names and addresses of the holders of
such Indebtedness and the amount thereof. Upon receipt of any such notice of
default or adverse development, the Agent shall forthwith give notice to each
Bank of the details thereof.
(h) Notice of ERISA Events. Within 10 days after the Company or
any ERISA Affiliates knows that any of the events described in the succeeding
two sentences have occurred and such occurrence or occurrences, individually or
in the aggregate, could be material and adverse to the Company and the
Subsidiaries, taken as a whole, the Company shall furnish to the Agent a
statement signed by a senior officer of the Company describing such event in
reasonable detail and the action, if any, proposed to be taken with respect
thereto. The events referred to in the preceding sentence are, with respect to
any Single-Employer Plan: (i) any reportable event described in Section 4043 of
ERISA, other than a reportable event for which the 30-day notice requirement has
been waived by the PBGC; (ii) the filing with any affected party as such term is
defined in Section 4001 of ERISA of a notice of intent to terminate the Plan;
(iii) receipt of notice of an application by the PBGC to institute proceedings
to terminate the Plan pursuant to Section 4042 of ERISA; (iv) withdrawal from or
termination of the Plan during a plan year for which the Company or any ERISA
Affiliate is or would be subject to liability under Sections 4063 or 4064 of
ERISA; (v) cessation of operations by the Company or any ERISA Affiliate at a
facility under the circumstances described in Section 4062(e) of ERISA; (vi)
adoption of an amendment to a Plan which is a Single-Employer Plan which would
require security to be given to the Plan pursuant to Section 401(a)(29) of the
Code or Section 307 of ERISA; and (vii) failure by the Company or any ERISA
Affiliate to make payment to a Single-Employer Plan which would give rise to a
lien in favor of the Plan under Section 302(f) of ERISA. Such events shall also
include receipt of notice of withdrawal liability pursuant to Section 4202 of
ERISA.
(i) Environmental Matters. (i) Comply, and cause the Subsidiaries
to comply, in all material respects with all applicable Environmental Laws, (ii)
notify the Agent promptly after receiving notice or becoming aware of any
Adverse Environmental Condition or Environmental Claims that could have a
Material Adverse Effect, and (iii) promptly forward to Agent a copy of any
Environmental Claim, order, notice, permit, application, or any other
communication or report received by Company or any of the Subsidiaries in
connection with any such matters as they may affect such premises, if material.
(j) Insurance on Leased Properties. Use its, and cause the
Subsidiaries to use their, commercially reasonable best efforts to ensure that
each lessee of a property owned in whole or in part, directly or indirectly, by
the Company or any Subsidiary, and each mortgagor of a property on which the
Company or any Subsidiary holds a mortgage, has, and until the Termination Date
will keep, in place adequate insurance which names the Company or such
Subsidiary as a loss payee. For the purposes of the preceding sentence "adequate
insurance" shall mean insurance, with financially sound and reputable insurers
in such amounts and insuring against such risks as are customarily maintained by
similar businesses.
(k) Further Assurances. The Company agrees to do all acts and
things, as may be required by law or as, in the reasonable judgment of the
Agent, may be necessary or advisable to carry out the intent and purpose of this
Agreement.
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(l) Year 2000 Covenant. The Company shall provide, and shall
cause each of the Subsidiaries to provide, reasonable assurance of compliance
with the representations and warranties contained in SECTION 5.1(u) to the Agent
at its request or the request of the Required Lenders (and, in the case of any
such request by the Required Lenders, the Agent shall provide a copy thereof to
each Bank).
Section 7.2. Negative Covenants. Until the Termination Date, and
thereafter until payment in full of the Notes and performance of all other
obligations of the Company hereunder (other than Unmatured Surviving
Obligations), the Company will not:
(a) Secured Indebtedness. Create, incur, assume or suffer to
exist any Indebtedness of the Company secured by mortgages, encumbrances or
other Liens, except Indebtedness secured by mortgages, encumbrances or other
Liens which, together with the Indebtedness of the Subsidiaries permitted under
SECTION 7.2(b)(iii), does not exceed 30% of Consolidated Total Assets, provided,
however, that the amount of any such secured Indebtedness that is used to repay
unsecured Indebtedness of the Company and the Subsidiaries (other than
Indebtedness to the Banks hereunder) shall not exceed 30% of Consolidated Total
Assets.
(b) Subsidiary Indebtedness. Permit any Subsidiary to create,
incur, assume or suffer to exist any Indebtedness, except (i) any Indebtedness
described in clause (ii) of the definition of "Initial Transactions", provided
that such Indebtedness is paid in full substantially simultaneous with the
Initial Loan, (ii) Indebtedness to the Company or any other Subsidiary, or (iii)
Indebtedness which, together with outstanding Indebtedness of the Company
permitted under SECTION 7.2(a) and all outstanding Indebtedness of other
Subsidiaries, does not exceed 30% of Consolidated Total Assets.
(c) Mortgages and Pledges. Create, incur, assume or suffer to
exist, or permit any of the Subsidiaries to create, incur, assume or suffer to
exist, any Lien of any kind upon or in any of its property or assets, whether
now owned or hereafter acquired, other than (i) Permitted Encumbrances and (ii)
Liens granted in order to secure Indebtedness permitted under SECTION 7.2(a) or
7.2(b); provided, however, that the aggregate value of property subject to Liens
granted pursuant to clause (ii) (exclusive of Liens to secure Indebtedness
pursuant to SECTION 7.2(b)(ii)) shall not exceed 30% of Total Consolidated
Assets.
(d) Merger, Consolidation or Acquisition of Assets. Enter into
any merger or consolidation or acquire all or substantially all of the assets of
any person, firm, joint venture or corporation (other than as contemplated by
the definition of "Initial Transactions"), or permit any Subsidiary so to do,
except that: (i) a Wholly-Owned Subsidiary may be merged or consolidated with
one or more other Wholly-Owned Subsidiaries or into the Company; (ii) the
Company or any Subsidiary may merge, consolidate or acquire assets in the
ordinary course of its business; (iii) the Company may be merged or consolidated
with other entities so long as: (1) the Company is the surviving corporation of
such merger or consolidation; (2) at the time of such merger or consolidation
and immediately after giving effect thereto, no Default or Event of Default
shall have occurred and be continuing; and (3) the surviving corporation is
engaged substantially in the same line of business as the Company; and (iv) the
Company or any Subsidiary may acquire any interest in any person, firm, joint
venture or corporation so long as: (1) the amount of the total consideration
(including any Indebtedness or liabilities incurred or assumed in connection
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therewith) paid in connection with such acquisition is not greater than 15% of
Consolidated Stockholders' Equity; (2) the acquired entity is engaged in
substantially the same line of business as the Company; and (3) at the time of
such acquisition and immediately after giving effect thereto, no Default or
Event of Default shall have occurred and be continuing.
(e) Sales of Assets. Sell, lease or otherwise dispose of all or
any substantial part of its assets, or permit any Subsidiary so to do.
(f) Loans and Investments. Purchase or acquire the obligations or
stock of, or any other interest in, or make loans or advances to, any Person
(other than as contemplated by the definition of "Initial Transactions"), or
permit any Subsidiary so to do, except (i) securities issued or fully guaranteed
or insured by the United States Government or any agency thereof and backed by
the full faith and credit of the United States having a maturity of not more
than one year from the date of acquisition thereof; (ii) marketable obligations
issued by any state of the United States of America or any political subdivision
of any such state or any public instrumentality thereof maturing within one year
of the date of acquisition thereof and, at the time of acquisition, rated at
least A by S&P or A2 by Moody's; (iii) repurchase agreements, tax exempt
investments, certificates of deposit, time deposits, Eurodollar time deposits or
bankers' acceptances issued by (1) any Bank, (2) any United States commercial
bank having combined capital and surplus of not less than $100,000,000 and
having commercial paper rated at least A-1 by S&P or P-1 by Moody's or (3) any
other bank having an ICBA Bank Analysis of B or better; (iv) certificates of
deposit in an amount less than or equal to $100,000 in the aggregate issued by
any other bank insured by the Federal Deposit Insurance Corporation; (v)
commercial paper or bankers' acceptances of an issuer rated at least A-1 by S&P
or P-1 by Moody's; (vi) money market funds invested in one or more of (i)
through (v) above; (vii) loans to and investments by the Company in any
Subsidiary or loans from any Subsidiary to the Company; and (viii) any such
loans or investments made in the ordinary course of the Company's or a
Subsidiary's business.
(g) Transactions with Affiliates. Enter into any transactions,
including the purchase, sale or exchange of property or the rendering of any
service, with any Affiliate, or permit any Subsidiary so to do, except in the
ordinary course of, and pursuant to the reasonable requirements of, its business
and upon fair and reasonable terms no less favorable to the Company or such
Subsidiary, as the case may be, than could be obtained in an arm's length
transaction with a person not an Affiliate.
(h) Stock and Equity Interests of Subsidiaries. Sell or otherwise
dispose of any shares of capital stock or other equity interests of any
Subsidiary (except (i) in connection with a merger or consolidation of a
Wholly-Owned Subsidiary permitted by SECTION 7.2(d) or with the dissolution of
any Subsidiary or (ii) a sale in accordance with SECTION 7.2(e) of any equity
interest in any Subsidiary that is not material to the Company and the
Subsidiaries, taken as a whole) or permit any Subsidiary to issue any additional
shares of its capital stock or other equity interests except pro rata to its
stockholders or equity holders.
(i) Environmental Matters. Violate any Environmental Law or incur
any liabilities under any Environmental Law, except to the extent that any such
violation or incurrence could not have a Material Adverse Effect.
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Section 7.3. Financial Covenants. Until the Termination Date, and
thereafter until payment in full of the Notes and performance of all other
obligations of the Company hereunder (other than Unmatured Surviving
Obligations):
(a) Consolidated Stockholders' Equity. The Company will maintain
Consolidated Stockholders' Equity of not less than the higher of (i)
$850,000,000 and (ii) 80% of Consolidated Stockholders' Equity calculated on a
pro forma basis at the time of, and immediately after giving effect to, the
consummation of the acquisition described in clause (i) of the definition of
"Initial Transactions".
(b) Consolidated Senior Debt to Consolidated Stockholders'
Equity Ratio. The Company will maintain a ratio of Consolidated Senior Debt to
Consolidated Stockholders' Equity of not greater than 1.50:1.00.
(c) Consolidated Debt to Consolidated Stockholders' Equity
Ratio. The Company will maintain a ratio of Consolidated Debt to Consolidated
Stockholders' Equity of not greater than 1.75:1.00.
(d) Interest Coverage Ratio. The Company will not permit the
ratio of (i) the sum of Consolidated Funds from Operations and Consolidated
Interest Expense to (ii) Consolidated Interest Expense, in each case for the
four quarter period ending on the last day of each fiscal quarter, to be less
than 2.25:1.00.
ARTICLE VIII.
EVENTS OF DEFAULT
Section 8.1. Events of Default. If one or more of the following events
(each, an "Event of Default") shall occur:
(a) Default shall be made in the payment of any installment of
principal of any Committed Note, or Negotiated Rate Note or Competitive Bid Note
when due and payable, whether at maturity, by notice of intention to prepay or
otherwise; or default shall be made in the payment of any installment of
interest upon any Note when due and payable, and such default shall have
continued for five days; or
(b) Default shall be made in the payment of the Facility Fee,
the Utilization Fee or any other fee or amount payable hereunder when due and
payable and such default shall have continued for five days; or
(c) Default shall be made in the due observance or performance
of any term, covenant, or agreement contained in SECTION 7.1(g), 7.2(d), 7.2(e)
or 7.3; or
(d) Default shall be made in the due observance or performance
of any other term, covenant or agreement contained in this Agreement, and such
default shall have continued unremedied for a period of 30 days after any
officer of the Company becomes aware, or should have become aware, of such
default; or
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(e) Any representation or warranty made or deemed made by the
Company herein or any statement or representation made in any certificate or
report delivered by or on behalf of the Company in connection herewith or in
connection with any Note shall prove to have been false or misleading in any
material respect when made; or
(f) Any obligation (other than its obligation hereunder) of the
Company or any of the Subsidiaries for the payment of Indebtedness in excess of
$5,000,000 (i) is not paid when due or within any grace period for the payment
therefor, or (ii) becomes or is declared to be due and payable prior to the
expressed maturity thereof, or (iii) there shall have occurred an event which,
with the giving of notice or lapse of time, or both, would cause any such
obligation to become, or allow any such obligation to be declared to be, due and
payable, except that, solely for purposes of this clause (iii), for a period of
60 days after the date hereof, no default with respect to any Indebtedness
listed on SCHEDULE 8.1(f) resulting from the merger of AHPI into the Company
shall constitute a Default or Event of Default; or
(g) An involuntary case or other proceeding shall be commenced
against the Company or any Subsidiary seeking liquidation, reorganization or
other relief with respect to it or its debts under any applicable Federal or
state bankruptcy, insolvency, reorganization or similar law now or hereafter in
effect or seeking the appointment of a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of it or any substantial
part of its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed, or an order or decree approving or ordering any of the
foregoing shall be entered and continued unstayed and in effect, in any such
event, for a period of 60 days; or
(h) The commencement by the Company or any of the Subsidiaries
of a voluntary case or proceeding under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the consent by any
of them to the entry of a decree or order for relief in respect of the Company
or any of the Subsidiaries in an involuntary case or proceeding under any
applicable Federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against any of them, or the filing by any of them of a petition or
answer or consent seeking reorganization or relief under any applicable Federal
or state law, or the consent by any of them to the filing of such petition or to
the appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the Company or any of the
Subsidiaries or any substantial part of their respective property, or the making
by any of them of an assignment for the benefit of creditors, or the admission
by any of them in writing of inability to pay their debts generally as they
become due, or the taking of corporate action by the Company or any of the
Subsidiaries in furtherance of any such action; or
(i) One or more judgments against the Company or any of the
Subsidiaries or attachments against its property, which in the aggregate exceed
$5,000,000, or the operation or result of which could be to interfere materially
and adversely with the conduct of the business of the Company or any of the
Subsidiaries, remain unpaid, unstayed on appeal, undischarged, unbonded, or
undismissed for a period of 60 days; or
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(j) With respect to any Single-Employer Plan, any of the
following shall occur: (1) the filing with any affected party as such term is
defined in Section 4001 of ERISA of a notice of intent to terminate the Plan, or
receipt of notice of an application by the PBGC to institute proceedings to
terminate the Plan pursuant to Section 4042 of ERISA; in each case, if the
amount of unfunded benefit liabilities, as such term is defined in Section
4001(a)(18) of ERISA, of the Plan as of the date such event occurs is more than
$5,000,000; (2) the Company or any ERISA Affiliate incurs liability under
Sections 4062(e), 4063 or 4064 of ERISA in an amount in excess of $5,000,000;(3)
an amendment is adopted to the Plan which would require security to be given to
the Plan pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA in
an amount in excess of $5,000,000; or (4) the Company or any ERISA Affiliate
fails to make a payment to the Plan which would give rise to a lien in favor of
the Plan under Section 302(f) of ERISA in an amount in excess of $5,000,000; or
(k) Any court or governmental or regulatory authority shall have
enacted, issued, promulgated, enforced or entered any statute, rule, regulation,
judgment, decree, injunction or other order (whether temporary, preliminary or
permanent) which is in effect and which prohibits, enjoins or otherwise
restricts in a manner that would have a Material Adverse Effect on any of the
transactions contemplated under the Credit Documents; or
(l) The Company fails to maintain its status as a "real estate
investment trust", as such term is defined in the Code; or
(m) A Change of Control shall have occurred;
then (i) upon the happening of any of the foregoing Events of Default, the
obligation of the Banks to make any further Loans under this Agreement shall
terminate upon declaration to that effect delivered by the Agent or the Required
Banks to the Company and (ii) upon the happening of any of the foregoing Events
of Default which shall be continuing, the Notes shall become and be immediately
due and payable upon declaration to that effect delivered by the Agent or the
Required Banks to the Company; provided that upon the happening of any event
specified in SECTION 8.1(g) or 8.1(h), the Notes shall become immediately due
and payable and the obligation of the Banks to make any further Loans hereunder
shall terminate without declaration or other notice to the Company. The Company
expressly waives any presentment, demand, protest or other notice of any kind.
ARTICLE IX.
THE AGENT AND THE BANKS
Section 9.1. The Agency and Co-Documentation Agency. (a) Each Bank
appoints The Bank of New York as its Agent hereunder and irrevocably authorizes
the Agent to take such action on its behalf and to exercise such powers
hereunder as are specifically delegated to the Agent by the terms hereof,
together with such powers as are reasonably incidental hereto, and the Agent
hereby accepts such appointment subject to the terms hereof. The relationship
between the Agent and the Banks shall be that of agent and principal only and
nothing herein shall be construed to constitute the Agent a trustee for any Bank
nor to impose on the Agent duties or obligations other than those expressly
provided for herein.
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(b) Each Bank appoints each of Bank of America, N.A. and Wells
Fargo Bank, N.A. as a Co-Documentation Agent hereunder, and each
Co-Documentation Agent hereby accepts such appointment subject to the terms
hereof. Each Co-Documentation Agent, as such, shall have no duties or
obligations whatsoever under this Agreement or any Loan Document or any other
document or any matter related hereto or thereto, but shall nevertheless be
entitled to all of the indemnities and other protection afforded to the
Administrative Agent under this Article.
Section 9.2. The Agent's Duties. The Agent shall promptly forward to each
Bank copies, or notify each Bank as to the contents, of all notices and other
communications received from the Company pursuant to the terms of this Agreement
and the Notes and, in the event that the Company fails to pay when due the
principal of or interest on any Loan, the Agent shall promptly give notice
thereof to the Banks. As to any other matter not expressly provided for herein
or therein, the Agent shall have no duty to act or refrain from acting with
respect to the Company, except upon the instructions of the Required Banks. The
Agent shall not be bound by any waiver, amendment, supplement, or modification
of this Agreement or any Note which affects its duties hereunder and thereunder,
unless it shall have given its prior written consent thereto. The Agent shall
have no duty to ascertain or inquire as to the performance or observance of any
of the terms, conditions, covenants or agreements binding on the Company
pursuant to this Agreement or any Note nor shall it be deemed to have knowledge
of the occurrence of any Default or Event of Default (other than a failure of
the Company to pay when due the principal or interest on any Loan), unless it
shall have received written notice from the Company or a Bank specifying such
Default or Event of Default and stating that such notice is a "Notice of
Default", and promptly after its receipt of any such written notice, the Agent
shall give the Company and each Bank a copy thereof.
Section 9.3. Sharing of Payment and Expenses. All funds for the account
of the Banks received by the Agent in respect of payments made by the Company
pursuant to, or from any Person on account of, this Agreement or any Note shall
be distributed forthwith by the Agent among the Banks, in like currency and
funds as received, ratably in proportion to their respective interests therein.
In the event that any Bank shall receive from the Company or any other source
any payment of, on account of, or for or under this Agreement or any Note
(whether received pursuant to the exercise of any right of set-off, banker's
lien, realization upon any security held for or appropriated to such obligation
or otherwise as permitted by law) other than in proportion to its Pro Rata
Share, then such Bank shall purchase from each other Bank so much of its
interest in obligations of the Company as shall be necessary in order that each
Bank shall share such payment with each of the other Banks in proportion to each
Bank's Pro Rata Share; provided that no Bank shall purchase any interest of any
Bank that does not, to the extent that it may lawfully do so, set-off against
the balance of any deposit accounts maintained with it the obligations due to it
under this Agreement. In the event that any purchasing Bank shall be required to
return any excess payment received by it, the purchase shall be rescinded and
the purchase price restored to the extent of such return, but without interest.
In the case of any payment allocable to more than one party hereto that are made
with respect to obligations pursuant to this Agreement or any Note incurred
prior to the date hereof, such payments shall be apportioned, as applicable and
to the extent that such payment is attributable to the period prior to the date
hereof, according to each such party's Commitment or other rights hereunder as
they existed prior to such date.
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Section 9.4. The Agent's Liabilities. Each of the Banks and the Company
agrees that (i) neither the Agent in such capacity nor any of its officers or
employees shall be liable for any action taken or omitted to be taken by any of
them hereunder except for its or their own gross negligence or willful
misconduct, (ii) neither the Agent in such capacity nor any of its officers or
employees shall be liable for any action taken or omitted to be taken by any of
them in good faith in reliance upon the advice of counsel, independent public
accountants or other experts selected by the Agent, (iii) the Agent in such
capacity shall be entitled to rely upon any notice, consent, certificate,
statement or other document (including any telegram, cable, telex, facsimile or
telephone transmission) believed by it to be genuine and correct and to have
been signed and/or sent by the proper Persons, and (iv) the Agent in such
capacity shall be entitled to rely upon any statement made to it orally or by
telephone and believed by it to have been made by the proper Persons.
Section 9.5. The Agent as a Bank. The Agent shall have the same rights
and powers hereunder as any other Bank and may exercise the same as though it
were not the Agent, and the terms "Bank" or "Banks", unless the context
otherwise indicated, include the Agent in its individual capacity. The Agent
may, without any liability to account, maintain deposits or credit balances for,
invest in, lend money to and generally engage in any kind of banking business
with the Company or any Subsidiary or affiliate of the Company as if it were any
other Bank and without any duty to account therefor to the other Banks.
Section 9.6. Bank Credit Decision. Neither the Agent nor any of its
officers or employees has any responsibility for, gives any guaranty in respect
of, nor makes any representation to the Banks as to, (i) the condition,
financial or otherwise, of the Company or any Subsidiary thereof or the truth of
any representation or warranty given or made herein or in any other Credit
Document, or in connection herewith or therewith, or (ii) the validity,
execution, sufficiency, effectiveness, construction, adequacy, enforceability or
value of this Agreement or any other Credit Document or any other document or
instrument related hereto or thereto. Except as specifically provided herein and
in the other Credit Documents to which the Agent is a party, the Agent shall
have no duty or responsibility, either initially or on a continuing basis, to
provide any Bank with any credit or other information with respect to the
operations, business, property, condition or creditworthiness of the Company or
any of the Subsidiaries, whether such information comes into the Agent's
possession on or before the date hereof or at any time thereafter. Each Bank
acknowledges that it has, independently and without reliance upon the Agent or
any other Bank, based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Bank also acknowledges that it will independently and without
reliance upon the Agent or any other Bank, based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement or any
Note.
Section 9.7. Indemnification. Each Bank agrees (which agreement shall
survive payment of the Loans and the Notes) to indemnify the Agent, to the
extent not reimbursed by the Company, ratably in accordance with their
respective Commitments, from and against any and all liabilities, obligations,
losses, claims, damages, penalties, actions, judgments, suits, costs, expenses
or disbursements of any kind or nature whatsoever which may be imposed on,
incurred by, or asserted against the Agent in any way relating to or arising out
of this Agreement or any
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other Credit Document, or any action taken or omitted to be taken by the Agent
hereunder or thereunder; provided that no Bank shall be liable for any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the gross
negligence or willful misconduct of the Agent or any of its officers or
employees. Without limiting the foregoing, each Bank agrees to reimburse the
Agent promptly upon demand for its ratable share of any out-of-pocket expenses
(including counsel fees) incurred by the Agent in such capacity in connection
with the preparation, execution or enforcement of, or legal advice in respect of
rights or responsibilities under, this Agreement or any Note or any amendments
or supplements hereto or thereto, to the extent that the Agent is not reimbursed
for such expenses by the Company.
Section 9.8. Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Banks and the Company. Upon any such resignation,
the Required Banks shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Banks and shall
have accepted such appointment within 30 days after the resigning Agent's giving
of notice of resignation, or the Required Banks' giving notice of removal, as
the case may be, the resigning Agent may, on behalf of the Banks, appoint a
successor Agent, which shall be a commercial bank organized under the laws of
the United States of America or of any State thereof and having a combined
capital and surplus of at least $250,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the resigned or removed Agent, and the resigned or removed Agent
shall be discharged from its duties and obligations under this Agreement. After
any Agent's resignation hereunder as Agent, the provisions of this ARTICLE shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent under this Agreement.
ARTICLE X.
CONSENT TO JURISDICTION
Section 10.1. Consent to Jurisdiction. The Company hereby irrevocably
submits to the non-exclusive jurisdiction of the State of New York for the
purpose of any suit, action, proceeding or judgment relating to or arising out
of this Agreement and each Note. The Company hereby appoints CT Corporation
System, Inc., with offices on the date hereof at 1633 Broadway, New York, New
York 10019, as its authorized agent on whom process may be served in any action
which may be instituted against it by the Agent or the Banks in any state or
federal court in the Borough of Manhattan, The City of New York, arising out of
or relating to any Loan or this Agreement and each Note. Service of process upon
such authorized agent and written notice of such service to the Company shall be
deemed in every respect effective service of process upon the Company, and the
Company hereby irrevocably consents to the jurisdiction of any such court in any
such action and to the laying of venue in the Borough of Manhattan, The City of
New York. The Company hereby irrevocably waives any objection to the laying of
the venue of any such suit, action or proceeding brought in the aforesaid courts
and hereby irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum.
Notwithstanding the foregoing, nothing herein shall in any way affect the right
of the Agent or any Bank to bring any action arising out of or relating
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to the Loans or this Agreement and each Note in any competent court elsewhere
having jurisdiction over the Company or its property.
ARTICLE XI.
MISCELLANEOUS
SECTION 11.1. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, UNITED
STATES OF AMERICA.
Section 11.2. Set-off. Each Bank is authorized to set-off and apply any
and all deposits at any time held by such Bank against obligations of the
Company under the Credit Documents.
Section 11.3. Expenses. The Company agrees to pay (i) all reasonable
out-of-pocket fees and expenses of the Agent and the Lead Arranger and Book
Manager (including the reasonable out-of-pocket fees and expenses of Bryan Cave
LLP, as counsel to the Agent and the Lead Arranger and Book Manager) in
connection with the preparation and negotiation of this Agreement and the other
Credit Documents, any amendments, supplements or modifications hereto or
thereto, in each case whether or not the transactions contemplated hereby or
thereby are consummated and in connection with the consummation of the
transactions contemplated hereby or thereby (ii) all reasonable out-of-pocket
fees and expenses incurred by the Agent and any Bank, including reasonable
out-of pocket fees and disbursements of counsel, in connection with the
execution, administration and enforcement of any provisions of this Agreement,
the Notes or any amendment or supplement hereto or thereto and (iii) all
reasonable out-of-pocket fees and expenses of the Agent and the Lead Arranger
and Book Manager, including reasonable out-of-pocket fees and disbursements of
counsel, in connection with the syndication of the Loans. The Company shall pay
any transfer taxes, documentary taxes, assessments or charges made by any
Governmental Authority by reason of the execution and delivery of this Agreement
or the Notes.
Section 11.4. Amendments. Any provision of this Agreement or the Notes
may be amended or waived if, but only if, such amendment or waiver is in writing
and is signed by the Company and the Required Banks (and, if the rights or
duties of the Agent are affected thereby, by the Agent); provided that no such
amendment, waiver or modification shall, unless signed by all the Banks, (i)
except as otherwise provided in SECTIONS 2.4, 11.12 and 11.13, increase or
decrease the Commitment of any Bank, subject any Bank to any additional
obligation or change the several nature or the obligations of each Bank, (ii)
reduce the principal of or rate of interest on any Loan (other than interest
payable pursuant to SECTION 3.5) or any fees hereunder, (iii) except as
otherwise provided in SECTION 11.12, postpone the date fixed for any payment of
principal of or interest on any Loan or any fees hereunder or for any reduction
or termination of any Commitment, (iv) except as otherwise may result from
actions taken in accordance with SECTION 11.12, change the percentage of any of
the Commitments or of the aggregate unpaid principal amount of the Notes, or the
number of Banks, which shall be required for the Banks or any of them to take
any action under this SECTION or any other provision of this Agreement, or (v)
amend or waive the provisions of ARTICLE IV or of this SECTION.
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Section 11.5. Cumulative Rights and No Waiver. Each and every right
granted to the Agent and the Banks hereunder or under any other document
delivered hereunder or in connection herewith, or allowed them by law or equity,
shall be cumulative and may be exercised from time to time. No failure on the
part of the Agent or any Bank to exercise, and no delay in exercising, any right
will operate as a waiver thereof, nor will any single or partial exercise by the
Agent or any Bank of any right preclude any other or future exercise thereof or
the exercise of any other right.
Section 11.6. Notices. Any communication, demand or notice to be given
hereunder or with respect to the Notes will be duly given when delivered in
writing or by telecopy to a party at its address as indicated below, except that
notices from the Company pursuant to SECTION 2.2, 2.6, 2.10 OR 11.12 will not be
effective until received by the Agent. A communication, demand or notice given
pursuant to this SECTION shall be addressed: if to the Agent or any Bank, at its
address as indicated on the signature pages hereof, and if to the Company, at
4675 MacArthur Court, Suite 900
Newport Beach, California 92660
Telecopy: (714) 221-0607
Attention: Treasurer
with copies to:
Latham & Watkins
633 West Fifth Street, Suite 4000
Los Angeles, California 90071
Telecopy: (213) 891-8763
Attention: Glen B. Collyer.
Unless otherwise provided to the contrary herein, any notice which is required
to be given in writing pursuant to the terms of this Agreement may be given by
telex, telecopy or facsimile transmission.
Section 11.7. Separability. In case any one or more of the provisions
contained in this Agreement shall be invalid, illegal or unenforceable in any
respect under any law, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
Section 11.8. Assignments and Participations. (a) This Agreement shall be
binding upon and inure to the benefit of the Company and the Banks and their
respective successors and assigns, except that the Company may not assign any of
its rights hereunder without the prior written consent of the Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each, a "Participant") participating interests in its Commitment
or any or all of its Loans. Each Bank agrees to give to the Company, with a copy
to the Agent, prior written notice of any grant of a participating interest
hereunder, which notice shall include the name of the Participant and the amount
of the interest being granted. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to the
Company and the Agent,
47
52
such Bank shall remain responsible for the performance of its obligations
hereunder, and the Company and the Agent shall continue to deal solely and
directly with such Bank in connection with such Bank's rights and obligations
under this Agreement. Any agreement pursuant to which any Bank may grant such a
participating interest shall provide that such Bank shall retain the sole right
and responsibility to enforce the obligations of the Company hereunder including
the right to approve any amendment, modification or waiver of any provision of
this Agreement; provided that such participation agreement may provide that such
Bank will not agree to any modification, amendment or waiver of this Agreement
described in clauses (i) through (v), inclusive, of SECTION 11.4 without the
consent of the Participant. Subject to SECTION 11.8(e), the Company agrees that
each Participant shall be entitled to the benefits of SECTIONS 4.3, 4.4 and
11.3(ii) with respect to its participating interest. An assignment or other
transfer which is not permitted by clause (c) below shall be given effect for
purposes of this Agreement only to the extent of a participating interest
granted in accordance with this clause (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each, an "Assignee") all, or a proportionate part of all, of its
rights and obligations under this Agreement and the Notes, and such Assignee
shall assume such rights and obligations, pursuant to an instrument executed by
such Assignee and such transferor Bank, with (and subject to) the signed consent
of the Company and the Agent (which consent shall not be unreasonably withheld);
provided, however, any such assignment shall be in the minimum aggregate amount
of $10,000,000; provided, further, that the foregoing consent requirement shall
not be applicable (i) in the case of, and this subsection (c) shall not
restrict, an assignment or other transfer by any Bank to an affiliate of such
Bank or to a Federal Reserve Bank or (ii) if any event specified in SECTION
8.1(a), 8.1(g), 8.1(h), 8.1(l) or 8.1(m) has occurred and is continuing. Upon
(1) execution and delivery of such an instrument, (2) payment by such Assignee
to such transferor Bank of an amount equal to the purchase price agreed between
such transferor Bank and such Assignee and (3) payment by the transferee Bank or
transferor Bank to the Agent of an administrative fee in the amount of $3,500,
such Assignee shall be a Bank party to this Agreement and shall have all the
rights and obligations of a Bank with a Commitment as set forth in such
instrument of assumption, and the transferor Bank shall be released from its
obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Bank, the Agent and the Company
shall make appropriate arrangements so that, if required, new Notes are issued
to the Assignee.
(d) No Assignee, Participant or other transferee of any Bank's
rights shall be entitled to receive any greater payment under SECTION 4.3 or 4.4
than such Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Company's prior written
consent or by reason of the provisions of SECTION 4.4 requiring such Bank to
designate a different lending office under certain circumstances or at a time
when the circumstances giving rise to such payment did not exist.
(e) No Participant of any Bank shall be entitled to receive any
greater payment under SECTION 4.3, 4.4 or 11.3(ii) than such Bank would have
been entitled to receive if it had not granted a participation to such
Participant.
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53
SECTION 11.9. WAIVER OF JURY TRIAL. THE COMPANY, THE AGENT AND EACH OF
THE BANKS HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS
AGREEMENT, THE NOTES OR THE RELATIONSHIPS ESTABLISHED HEREUNDER.
Section 11.10. Confidentiality. Except as may be required to enforce the
rights and duties established hereunder, the parties hereto shall preserve in a
confidential manner all information received from the other pursuant to this
Agreement, the Notes and the transactions contemplated hereunder and thereunder,
and shall not disclose such information except to those persons with which a
confidential relationship is maintained (including regulators, affiliates, legal
counsel, accountants, or designated agents), or where required by law.
Section 11.11. Indemnity. The Company agrees to indemnify the Agent and
each of the Banks and their respective directors, officers, employees and agents
(each such person being called an "Indemnitee") against, and to hold each
Indemnitee harmless from, any and all losses, claims, damages and liabilities of
any party other than the Company and related expenses, including reasonable
counsel fees and expenses incurred by or asserted against any Indemnitee arising
out of, in any way connected with, or as a result of (i) the execution or
delivery of this Agreement or any Note or any agreement or instrument
contemplated hereby or thereby, the performance by the parties thereto of their
respective obligations hereunder or thereunder or the consummation of the
transactions and the other transactions contemplated hereby or thereby, (ii) the
use of the proceeds of the Loans or (iii) any claim, litigation, investigation,
or proceeding relating to any of the foregoing, whether or not any Indemnitee is
a party thereto and notwithstanding that any claim, proceeding, investigation or
litigation relating to any such losses, claims, damages, liabilities or expenses
is or was brought by a shareholder, creditor, employee or officer of the
Company; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or willful
misconduct of any Indemnitee. The provisions of this SECTION shall remain
operative and in full force and effect regardless of the expiration of the term
of this Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the reduction or cancellation of the Commitment,
the invalidity or unenforceability of any term or provision of this Agreement or
any Note, or any investigation made by or on behalf of the Banks. All amounts
due under this SECTION shall be payable in immediately available funds upon
written demand therefor.
Section 11.12. Extension of Termination Dates; Removal of Banks;
Substitutions of Banks. (a) The Company may at its option, request all the Banks
then party to this Agreement to extend their scheduled Termination Dates by 364
calendar days by means of a letter, in substantially the form of EXHIBIT K,
delivered to each such Bank and the Agent not earlier than 60 days prior to such
scheduled Termination Dates. Not later than 30 days after receipt of the request
to extend the Termination Dates, each such Bank electing (in its sole
discretion) so to extend its scheduled Termination Date shall execute and
deliver counterparts of such letter to the Company and the Agent, whereupon
(unless Banks with an aggregate percentage of the Total Commitment in excess of
25% decline to extend their respective scheduled Termination Dates, in
49
54
which event the Agent shall notify all the Banks thereof) such Bank's scheduled
Termination Date shall be extended by 364 calendar days so as to fall in October
of the year immediately succeeding such Bank's then-current scheduled
Termination Date. Any Bank failing to respond to the extension request letter
shall be deemed to have declined to extend such Bank's scheduled Termination
Date.
(b) With respect to any Bank which has declined to extend such
Bank's scheduled Termination Date, the Company may (unless Banks with an
aggregate percentage of the Total Commitment in excess of 25% have declined to
extend their respective scheduled Termination Dates), in its discretion, upon
not less than 30 days' prior written notice to the Agent and each Bank, remove
such Bank as a party hereto. Each such notice shall specify the date of such
removal (which shall be a Business Day), which shall thereupon become the
scheduled Termination Date for such Bank.
(c) In the event that any Bank does not extend its scheduled
Termination Date pursuant to subsection (a) above, whether or not it is the
subject of a notice of removal pursuant to subsection (b) above, then, at any
time prior to the Termination Date for such Bank (a "Terminating Bank"), the
Company may, at its option, arrange to have one or more other financial
institutions acceptable to the Agent (which may be a Bank or Banks and each of
which shall herein be called a "Successor Bank") succeed to all or a percentage
of the Terminating Bank's outstanding Loans, if any, and rights under this
Agreement and assume all or a like percentage (as the case may be) of such
Terminating Bank's Commitment and other obligations hereunder, as if (i) in the
case of any Terminating Bank that is not the subject of a notice of removal
pursuant to subsection (b) above, such Successor Bank had extended its scheduled
Termination Date pursuant to such subsection (a) and (ii) in the case of any
Terminating Bank that is the subject of a notice of removal pursuant to
subsection (b) above, no such notice of removal had been given by the Company.
Such succession and assumption shall be effected by means of one or more
agreements supplemental to this Agreement among the Terminating Bank, the
Successor Bank, the Company and the Agent. On and as of the effective date of
each such supplemental agreement, each Successor Bank party thereto shall be and
become a Bank for all purposes of this Agreement (to the same extent as any
other Bank hereunder) and shall be bound by and entitled to the benefits of this
Agreement in the same manner as any other Bank.
(d) On the Termination Date for any Terminating Bank, such
Terminating Bank's Commitment shall terminate and, except to the extent assigned
pursuant to subsection (c) above, the Company shall pay in full all of such
Terminating Bank's Loans and all other amounts payable to such Bank hereunder,
including any amounts payable pursuant to SECTIONS 4.3, 4.4, 11.3 and 11.11 on
account of such payment.
(e) To the extent that all or a portion of any Terminating Bank's
obligations are not assumed pursuant to subsection (c) above, the Total
Commitment shall be reduced on the applicable Termination Date and each Bank's
percentage of the reduced Total Commitment shall be revised pro rata to reflect
such Terminating Bank's absence.
Section 11.13. Increase of Commitments. At any time and from time to
time, the Company may, at its option, arrange for one or more Banks or one or
more other financial institutions acceptable to the Agent (an "Increasing Bank")
to increase their respective
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55
Commitments (or, in the case of such other financial institutions, extend new
Commitments hereunder) in an aggregate amount not to exceed $13,292,000. Such
increase or extension shall be effected by means of one or more agreements or
other documents supplemental to this Agreement among the Increasing Banks, the
Company and the Agent. In the event that immediately after giving effect to such
increase or extension Committed Loans shall then be outstanding, then
simultaneously with such increase or extension the Banks (including the
Increasing Banks) shall, subject to the terms and conditions of this Agreement,
make new Committed Loans in accordance with their respective Commitments
(immediately after giving effect to such increase or extension) as shall be
necessary to pay in full such outstanding Committed Loans, provided that (i) the
making of such new Committed Loans and the payment in full of such outstanding
Committed Loans shall be deemed to have been made simultaneously and shall be
effected in a manner reasonably determined by the Agent through means of one or
more advances and/or payments made directly among the Banks on a netted basis
through the Agent and (ii) upon the consummation thereof, the Banks, the Agent
and the Company shall make appropriate arrangements so that, if required, new
Notes are issued to the Banks. On and as of the effective date of each such
increase or extension, each Increasing Bank shall be and become a Bank for all
purposes of this Agreement (to the same extent as any other Bank hereunder) and
shall be bound by and entitled to the benefits of this Agreement in the same
manner as any other Bank.
Section 11.14. Knowledge of the Company. As used in this Agreement,
knowledge of the Company shall mean to the best of any officer's knowledge,
after a reasonable investigation.
Section 11.15. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all the counterparts shall together constitute one and the same instrument.
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56
HEALTH CARE 364-DAY CREDIT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
HEALTH CARE PROPERTY
INVESTORS, INC.
By:
---------------------------
Name: Devasis Ghose
Title: Senior Vice President
THE BANK OF NEW YORK,
as Agent for the Banks
By:
---------------------------
Name:
Title:
Address for Notices:
The Bank of New York
One Wall Street, 18th Floor
New York, NY 10286
Attn:Kalyani Bose
Fax: (212) 635-6365
With a copy to:
The Bank of New York
10990 Wilshire Boulevard, Suite 1125
Los Angeles, CA 90024
Attn:Rebecca K. Levine
Fax: (310) 996-8667
57
HEALTH CARE 364-DAY CREDIT AGREEMENT
Commitment: $19,935,484 THE BANK OF NEW YORK,
as a Bank
By:
---------------------------------
Name:
Title:
Address for Notices:
The Bank of New York
One Wall Street, 18th Floor
New York, NY 10286
Attn: Kalyani Bose
Fax: (212) 635-6365
With a copy to:
The Bank of New York
10990 Wilshire Boulevard, Suite 1125
Los Angeles, CA 90024
Attn: Rebecca K. Levine
Fax: (310) 996-8667
Eurodollar Lending Office:
The Bank of New York
One Wall Street, 18th Floor
New York, NY 10286
Attn: Kalyani Bose
Fax: (212) 635-6365
58
HEALTH CARE 364-DAY CREDIT AGREEMENT
Commitment: $18,274,194 BANK OF AMERICA, N.A.,
as a Bank
By:
---------------------------------
Name:
Title:
Address for Notices:
Bank of America, N.A.
One Independence Center
101 N. Tryon Street, 15th Floor
Charlotte, NC 28255
Attn: Mathew Menz
Fax: (704) 409-0083
With a copy to:
Bank of America, N.A.
700 Louisiana Street, 8th Floor
Houston, TX 77002
Attn: Scott Singhoff
Fax: (713) 247-6719
Eurodollar Lending Office:
Bank of America, N.A.
One Independence Center
101 N. Tryon Street, 15th Floor
Charlotte, NC 28255
Attn: Mathew Menz
Fax: (704) 409-0083
59
HEALTH CARE 364-DAY CREDIT AGREEMENT
Commitment: $18,274,194 WELLS FARGO BANK, N.A.,
as a Bank
By:
---------------------------------
Name:
Title:
Address for Notices:
Wells Fargo Bank, N.A.
Los Angeles Regional Commercial
Banking Office
333 South Grand Avenue, 3rd Floor
Los Angeles, CA 90071
Attn: Charles Warner
Fax: (213) 687-3501
Eurodollar Lending Office:
Wells Fargo Bank, N.A.
Los Angeles Regional Commercial
Banking Office
333 South Grand Avenue, 3rd Floor
Los Angeles, CA 90071
Attn: Charles Warner
Fax: (213) 687-3501
60
HEALTH CARE 364-DAY CREDIT AGREEMENT
Commitment: $18,274,194 FIRST UNION NATIONAL BANK,
as a Bank
By:
---------------------------------
Name:
Title:
Address for Notices:
First Union Bank National Bank
One First Union Center
301 South College Street, TW5
Charlotte, NC 28288-0735
Attn: Valerie Cline
Fax: (704) 383-9144
Eurodollar Lending Office:
First Union Bank National Bank
One First Union Center
301 South College Street, TW5
Charlotte, NC 28288-0735
Attn: Valerie Cline
Fax: (704) 383-9144
61
HEALTH CARE 364-DAY CREDIT AGREEMENT
Commitment: $4,983,871 BANK OF HAWAII,
as a Bank
By:
---------------------------------
Name:
Title:
Address for Notices:
Bank of Hawaii
130 Merchant Street
Honolulu, HI 96813-6000
Attn: Scott Nahame
Fax: (808) 537-8301
Eurodollar Lending Office:
Bank of Hawaii
949 Kamokila Boulevard
Kapolei, HI 96706
Attn: Donna Arakawa
Fax: (808) 693-1672
62
HEALTH CARE 364-DAY CREDIT AGREEMENT
Commitment: $3,322,581 CITY NATIONAL BANK,
as a Bank
By:
---------------------------------
Name:
Title:
Address for Notices:
City National Bank
400 North Roxbury Drive, 3rd. Floor
Beverly Hills, CA 90210
Attn: Randall F. Watsek
Fax: (310) 888-6564
Eurodollar Lending Office:
City National Bank
831 South Douglas Street, Suite 100
El Segundo, CA 90245
Attn: Pamela Terry
Fax: (310) 297-8171
63
HEALTH CARE 364-DAY CREDIT AGREEMENT
Commitment: $6,645,161 KBC BANK N.V.,
as a Bank
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
Address for Notices:
KBC BANK N.V.
125 West 55th Street,
10th Floor
New York, NY 10019
Attn: Michael Curran
Fax: (212) 541-0784
With a copy to:
KBC BANK N.V.
515 South Figueroa, Suite 1920
Los Angeles, CA 90071
Attn: Barbara Readick
Fax: (213) 629-5801
Eurodollar Lending Office:
KBC BANK N.V.
125 West 55th Street
10th Floor
Ne w York, NY 10019
Attn: Michael Curran
Fax: (212) 541-0784
64
HEALTH CARE 364-DAY CREDIT AGREEMENT
Commitment: $8,306,452 SOCIETE GENERALE,
as a Bank
By:
---------------------------------
Name:
Title:
Address for Notices:
SOCIETE GENERALE
2029 Century Park East, 2900
Los Angeles, CA 90067
Attn: Richard Bernal
Fax: (310) 551-1537
Eurodollar Lending Office:
SOCIETE GENERALE
2001 Ross Avenue, Suite 4800
Dallas, TX 75201
Attn: Lia Guerra
Fax: (214) 979-0171
65
HEALTH CARE 364-DAY CREDIT AGREEMENT
Commitment: $4,983,871 CREDIT LYONNAIS NEW YORK BRANCH,
as a Bank
By:
---------------------------------
Name:
Title:
Address for Notices:
Credit Lyonnais
1301 Avenue of the Americas
New York, NY 10019
Attn: Henry Reukauf
Fax: (212) 261-3440
Eurodollar Lending Office:
Credit Lyonnais
1301 Avenue of the Americas
New York, NY 10019
Attn: Henry Reukauf
Fax: (212) 261-3440