Exhibit 10.1
================================================================================
AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT FOR SUCH BANKS,
DEUTSCHE BANK SECURITIES INC.,
AS SYNDICATION AGENT
AND
UBS WARBURG LLC,
AS DOCUMENTATION AGENT
AUGUST 23, 2002
================================================================================
KEYBANK NATIONAL ASSOCIATION
AND
DEUTSCHE BANK SECURITIES INC.,
AS JOINT LEAD ARRANGERS AND JOINT BOOK MANAGERS
TABLE OF CONTENTS PAGE
Article 1. Definitions ............................................................ 1
Section 1.1 Defined Terms .................................................. 1
Section 1.2 GAAP ........................................................... 14
Article 2. Revolving Credit Commitments; Loans .................................... 14
Section 2.1 Loans .......................................................... 14
Section 2.2 Notices Relating to Loans ...................................... 15
Section 2.3 Disbursement of Loan Proceeds .................................. 15
Section 2.4 Notes .......................................................... 15
Section 2.5 Payment of Loans; Voluntary Changes in Commitment; Mandatory
Repayments ................................................... 16
Section 2.6 Interest ....................................................... 16
Section 2.7 Fees ........................................................... 18
Section 2.8 Use of Proceeds of Loans ....................................... 19
Section 2.9 Computations ................................................... 19
Section 2.10 Minimum Amounts of Borrowings, Conversions and Repayments ...... 19
Section 2.11 Time and Method of Payments .................................... 19
Section 2.12 Lending Offices ................................................ 20
Section 2.13 Several Obligations ............................................ 20
Section 2.14 Pro Rata Treatment Among Banks ................................. 20
Section 2.15 Non-Receipt of Funds by the Agent .............................. 20
Section 2.16 Sharing of Payments and Set-Off Among Banks .................... 20
Section 2.17 Conversion of Loans ............................................ 21
Section 2.18 Additional Costs; Capital Requirements ......................... 21
Section 2.19 Limitation on Types of Loans ................................... 23
Section 2.20 Illegality ..................................................... 23
Section 2.21 Certain Conversions pursuant to Sections 2.18 and 2.20 ..........24
Section 2.22 Indemnification ................................................ 24
Section 2.23 Extension of Revolving Credit Commitment Termination Date ...... 25
Article 3. Representations and Warranties ......................................... 25
Section 3.1 Organization ................................................... 25
Section 3.2 Power, Authority, Consents ..................................... 25
Section 3.3 No Violation of Law or Agreements .............................. 26
Section 3.4 Due Execution, Validity, Enforceability ........................ 26
Section 3.5 Title to Properties ............................................ 26
Section 3.6 Judgments, Actions, Proceedings ................................ 26
Section 3.7 No Defaults, Compliance With Laws .............................. 27
Section 3.8 Burdensome Documents ........................................... 27
Section 3.9 Financial Statements; Projections .............................. 27
Section 3.10 Tax Returns .................................................... 28
Section 3.11 Intangible Assets .............................................. 28
Section 3.12 Regulation U ................................................... 28
Section 3.13 Name Changes, Mergers, Acquisitions ............................ 28
Section 3.14 Full Disclosure ......................................... 28
Section 3.15 Licenses and Approvals .................................. 29
Section 3.16 ERISA ................................................... 29
Section 3.17 REIT Status ............................................. 29
Article 4. Conditions to the Loans ........................................... 29
Section 4.1 Conditions to Initial Loan(s) ........................... 29
Section 4.2 Conditions to Subsequent Loans .......................... 31
Article 5. Delivery of Financial Reports, Documents and Other Information .... 31
Section 5.1 Annual Financial Statements ............................. 31
Section 5.2 Quarterly Financial Statements .......................... 32
Section 5.3 Compliance Information .................................. 32
Section 5.4 No Default Certificate .................................. 32
Section 5.5 Certificate of Accountants .............................. 32
Section 5.6 Intentionally Omitted ................................... 33
Section 5.7 Business Plan and Projections ........................... 33
Section 5.8 Quarterly Facility Reports .............................. 33
Section 5.9 Accountants' Reports .................................... 33
Section 5.10 Copies of Documents ..................................... 33
Section 5.11 Notices of Defaults ..................................... 34
Section 5.12 ERISA Notices and Requests .............................. 34
Section 5.13 Additional Information .................................. 34
Article 6. Affirmative Covenants ............................................. 34
Section 6.1 Books and Records ....................................... 35
Section 6.2 Inspections and Audits .................................. 35
Section 6.3 Maintenance and Repairs ................................. 35
Section 6.4 Continuance of Business ................................. 35
Section 6.5 Copies of Corporate Documents ........................... 35
Section 6.6 Perform Obligations ..................................... 35
Section 6.7 Notice of Litigation .................................... 36
Section 6.8 Insurance ............................................... 36
Section 6.9 Financial Covenants ..................................... 36
Section 6.10 Notice of Certain Events ................................ 37
Section 6.11 Comply with ERISA ....................................... 37
Section 6.12 Environmental Compliance ................................ 37
Section 6.13 Maintenance of REIT Status .............................. 37
Section 6.14 Operator Concentration .................................. 37
Article 7. Negative Covenants ................................................ 37
Section 7.1 Indebtedness ............................................ 38
Section 7.2 Liens ................................................... 38
Section 7.3 Guaranties .............................................. 39
Section 7.4 Mergers, Acquisitions ................................... 39
Section 7.5 Distributions ........................................... 39
Section 7.6 Changes in Structure .................................... 40
- ii -
Section 7.7 Disposition of Assets ..................................... 40
Section 7.8 Investments ............................................... 40
Section 7.9 Fiscal Year ............................................... 41
Section 7.10 ERISA Obligations ......................................... 42
Section 7.11 Capital Expenditures ...................................... 42
Section 7.12 Intentionally Omitted ..................................... 42
Section 7.13 Use of Cash ............................................... 42
Section 7.14 Transactions with Affiliates .............................. 42
Section 7.15 Hazardous Material ........................................ 42
Section 7.16 Construction Investments .................................. 43
Article 8. Events of Default ................................................... 43
Section 8.1 Payments .................................................. 43
Section 8.2 Certain Covenants ......................................... 43
Section 8.3 Other Covenants ........................................... 44
Section 8.4 Other Defaults ............................................ 44
Section 8.5 Representations and Warranties ............................ 44
Section 8.6 Bankruptcy ................................................ 44
Section 8.7 Judgments ................................................. 45
Section 8.8 ERISA ..................................................... 45
Section 8.9 Material Adverse Effect ................................... 45
Section 8.10 Ownership ................................................. 45
Section 8.11 REIT Status, Etc .......................................... 46
Section 8.12 Management ................................................ 46
Section 8.13 Environmental ............................................. 46
Section 8.14 Default by Operator ....................................... 46
Article 9. The Agent ........................................................... 46
Section 9.1 Appointment, Powers and Immunities ........................ 46
Section 9.2 Reliance by Agent ......................................... 47
Section 9.3 Events of Default ......................................... 47
Section 9.4 Rights as a Bank .......................................... 47
Section 9.5 Indemnification ........................................... 48
Section 9.6 Non-Reliance on Agent and other Banks ..................... 48
Section 9.7 Failure to Act ............................................ 48
Section 9.8 Resignation or Removal of Agent ........................... 49
Section 9.9 Sharing of Payments ....................................... 49
Article 10. Miscellaneous Provisions ........................................... 50
Section 10.1 Fees and Expenses; Indemnity .............................. 50
Section 10.2 Taxes ..................................................... 51
Section 10.3 Payments .................................................. 52
Section 10.4 Survival of Agreements and Representations; Construction .. 52
Section 10.5 Lien on and Set-off of Deposits ........................... 52
Section 10.6 Modifications, Consents and Waivers; Entire Agreement ..... 53
Section 10.7 Remedies Cumulative; Counterclaims ........................ 53
Section 10.8 Further Assurances ........................................ 53
- iii -
Section 10.9 Notices .................................................... 54
Section 10.10 Counterparts ............................................... 55
Section 10.11 Severability ............................................... 55
Section 10.12 Binding Effect; No Assignment or Delegation by Borrowers ... 55
Section 10.13 Assignments and Participations by Banks .................... 56
Section 10.14 Delivery of Tax Forms ...................................... 58
Section 10.15 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF
TRIAL BY JURY .............................................. 58
Section 10.16 Syndication Agent and Documentation Agent .................. 59
SCHEDULE 3.1 ................................................................ 1
SCHEDULE 7.1 ................................................................ 18
EXHIBITS
--------
1 List of Borrowers
A Form of Note
B Form of Assignment and Acceptance
C Form of Compliance Certificate
SCHEDULES
---------
3.1 States of Incorporation and Qualification, and Capitalization
of Borrowers and Subsidiaries
3.2 Consents, Waivers, Approvals; Violation of Agreements
3.6 Judgments, Actions, Proceedings
3.7 Defaults; Compliance with Laws, Regulations, Agreements
3.8 Burdensome Documents
3.13 Name Changes, Mergers, Acquisitions
3.16 Employee Benefit Plans
5.8 Form of Quarterly Facility Report
7.1 Permitted Indebtedness and Guarantees
7.2 Permitted Security Interests, Liens and Encumbrances
7.11 Permitted Capital Expenditures
- iv -
AMENDED AND RESTATED LOAN AGREEMENT
-----------------------------------
AGREEMENT , made this 23rd day of August, 2002, by and among:
HEALTH CARE REIT, INC. , a Delaware corporation and each of the other
entities listed on Exhibit 1 annexed hereto (individually, a "BORROWER" and
collectively, the "BORROWERS");
The Banks that have executed the signature pages hereto (individually,
a "BANK" and collectively, the "BANKS"); and
KEYBANK NATIONAL ASSOCIATION , a national banking association, as
Administrative Agent for the Banks (in such capacity, together with its
successors in such capacity, the "AGENT");
W I T N E S S E T H:
--------------------
WHEREAS , the Borrowers entered into a Loan Agreement dated as of March
28, 1997 (as amended from time to time, the "EXISTING LOAN AGREEMENT") with the
financial institutions from time to time party thereto (collectively, the
"ORIGINAL LENDERS") and the Agent pursuant to which the Original Lenders made
certain loans to the Borrowers; and
WHEREAS , the Borrowers desire to amend and restate the Existing Loan
Agreement, in the form hereof, and the Banks party hereto are willing to so
amend and restate the Existing Loan Agreement, in order to, among other things,
provide for a joint and several revolving credit facility from the Banks to the
Borrowers in the aggregate principal amount of up to One Hundred Seventy-Five
Million ($175,000,000) Dollars on the terms and conditions hereinafter set
forth;
NOW, THEREFORE , in consideration of the premises and the mutual
covenants contained herein, the parties hereto agree to amend and restate the
Existing Loan Agreement in its entirety as follows:
ARTICLE 1. DEFINITIONS.
SECTION 1.1 DEFINED TERMS.
As used in this Agreement, the following terms shall have the following
meanings:
"ADDITIONAL COSTS" - as defined in subsection 2.18(b) hereof.
"AFFECTED LOANS" - as defined in Section 2.21 hereof.
"AFFECTED TYPE" - as defined in Section 2.21 hereof.
"AFFILIATE" - as to any Person, any other Person that directly or
indirectly controls, or is under common control with, or is controlled by, such
Person. As used in this definition, "control" (including, with its correlative
meanings, "controlled by" and "under common control with") shall mean
possession, directly or indirectly, of power to direct or cause the direction of
management or policies (whether through ownership of securities or partnership
or other ownership interests, by contract or otherwise), provided that , in any
event: (a) any Person that owns directly or indirectly ten (10%) percent or more
of the securities having ordinary voting power for the election of directors or
other governing body of a corporation or ten (10%) percent or more of the
partnership or other ownership interests of any other Person (other than as a
limited partner of such other Person) will be deemed to control such corporation
or other Person; and (b) each ten (10%) percent or more shareholder, each
director and executive officer of any Borrower shall be deemed to be an
Affiliate of such Borrower.
"AGENCY FEE" - as defined in subsection 2.7(c) hereof.
"ALTERNATE BASE RATE" - for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16th of 1%) equal to the greater of (a) the
Base Rate in effect on such day, and (b) 0.5% plus the Federal Funds Rate in
effect on such day.
"APPLICABLE MARGIN" - as at any date of determination, with
respect to LIBOR Loans, the applicable percentage per annum set forth below
based upon the Ratings in effect on such date:
Rating Level Applicable Margin for
LIBOR Loans
Level 1
-------
A-/A3 or above 0.85%
Level 2
-------
BBB+/Baa1 1.00%
Level 3
-------
BBB/Baa2 1.20%
Level 4
-------
BBB-/Baa3 1.30%
Level 5
-------
Lower than Level 4 or 1.50%
No Rating
For purposes of the foregoing: (i) if the Ratings established by S&P and Moodys
shall fall within different levels, the Applicable Margin shall be based upon
the higher of the two Ratings unless one of the two Ratings is two or more
levels lower than the other, in which case the Applicable Margin shall be
determined by reference to the level that is one above the lower Rating, and
(ii) if any Rating shall be changed (other than as a result of a change in the
rating system of the applicable Rating Agency), such change shall be effective
as of the date on which it is first announced by the Rating Agency making such
change. Each such change in the Applicable Margin shall apply to all outstanding
LIBOR Loans during the period commencing on the effective date of such change
and ending on the date immediately preceding the effective date of the next such
change. If the rating system of any Rating Agency shall change, the parties
- 2 -
hereto shall negotiate in good faith to amend the references to specific ratings
in this definition to reflect such changed rating system.
"APPRAISAL" - an appraisal providing an assessment of the fair
market value of a Property (whether appraised on a stand-alone basis or "in
bulk" together with similar Properties) which is independently and impartially
prepared by an MAI appraiser having substantial experience in the appraisal of
health care facilities and conforming to Uniform Standards of Professional
Appraisal Practice adopted by the Appraisal Standards Board of the Appraisal
Foundation.
"APPRAISED VALUE" - with respect to any Facility, the value of
such Facility reflected in the most recent Appraisal prepared with respect to
such Facility.
"ARRANGEMENT FEE" - as defined in subsection 2.7(c) hereof.
"ASSESSMENT RATE" - at any time, the rate (rounded upwards, if
necessary, to the nearest 1/100 of one (1%) percent) then charged by the Federal
Deposit Insurance Corporation (or any successor) to the Reference Bank for
deposit insurance for Dollar time deposits with the Reference Bank at the
Principal Office as determined by the Reference Bank.
"ASSIGNMENT AND ACCEPTANCE" - an agreement in the form of Exhibit
B hereto.
"BASE RATE" - the interest rate established from time to time by
Key as its base rate at the Principal Office. Notwithstanding the foregoing, the
Borrowers acknowledge that Key may regularly make domestic commercial loans at
rates of interest less than the rate of interest referred to in the preceding
sentence. Each change in any interest rate provided for herein based upon the
Base Rate resulting from a change in the Base Rate shall take effect at the time
of such change in the Base Rate.
"BASE RATE LOANS" - Loans that bear interest at a rate based upon
the Alternate Base Rate. "Borrowing Notice" - as defined in Section 2.2 hereof.
"Business Day" - any day other than Saturday, Sunday or any other day on which
commercial banks in the States of Ohio or New York are authorized or required to
close under the laws of such States.
"CAPITAL EXPENDITURES" - for any period, the aggregate amount of
all payments made or to be made during such period by any Person directly or
indirectly for the purpose of acquiring, constructing or maintaining fixed
assets, real property or equipment that, in accordance with GAAP, would be added
as a debit to the fixed asset account of such Person, including, without
limitation, all amounts paid or payable during such period with respect to
Capitalized Lease Obligations and interest that are required to be capitalized
in accordance with GAAP.
"CAPITALIZED LEASE" - any lease, the obligations to pay rent or
other amounts under which constitute Capitalized Lease Obligations.
- 3 -
"CAPITALIZED LEASE OBLIGATIONS" - as to any Person, the
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) real and/or personal property which
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"CASH" - as to any Person, such Person's cash and cash
equivalents, as defined in accordance with GAAP consistently applied.
"CERCLA" - the Comprehensive Environmental Response Compensation
and Liability Act of 1980, 42 U.S.C.ss.9601, et seq.
"CODE" - the Internal Revenue Code of 1986, as it may be amended
from time to time, and the regulations promulgated thereunder.
"COMPLIANCE CERTIFICATE" - a certificate in the form of Exhibit C
annexed hereto, executed by the chief executive officer or chief financial
officer of HCRI to the effect that: (a) as of the effective date of the
certificate, no Default or Event of Default under this Agreement exists or would
exist after giving effect to the action intended to be taken by the Borrowers as
described in such certificate, including, without limitation, that the covenants
set forth in Section 6.9 hereof would not be breached after giving effect to
such action, together with a calculation in reasonable detail, and in form and
substance satisfactory to the Agent, of such compliance, and (b) the
representations and warranties contained in Article 3 hereof are true and with
the same effect as though such representations and warranties were made on the
date of such certificate, except for changes in the ordinary course of business
none of which, either singly or in the aggregate, have had a Material Adverse
Effect.
"CONSOLIDATED TOTAL ASSETS" - on any date, the consolidated total
assets of HCRI and its Subsidiaries, as such amount would appear on a
consolidated balance sheet of HCRI prepared as of such date in accordance with
GAAP.
"CONSTRUCTION INVESTMENTS" - financing extended by HCRI with
respect to a Facility which is under construction i.e., has not received a
certificate of occupancy and the Borrower(s) conditions for conversion to
permanent financing for the Facility have not been satisfied.
"CONTROLLED GROUP" - all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with HCRI, are treated as a single employer under
Section 414(b), 414(c) or 414(m) of the Code and Section 4001(a)(2) of ERISA.
"CREDIT PERIOD" - the period commencing on the date of this
Agreement and ending on the Revolving Credit Commitment Termination Date.
"DBSI" - Deutsche Bank Securities Inc., a Delaware corporation.
"DEBT INSTRUMENT" - as defined in subsection 8.4(a) hereof.
- 4 -
"DEFAULT" - an event which with notice or lapse of time, or both,
would constitute an Event of Default.
"DISPOSITION" - the sale, lease, conveyance, transfer or other
disposition of any Facility (whether in one or a series of transactions),
including accounts and notes receivable (with or without recourse) and
sale-leaseback transactions.
"DOLLARS" and "$" - lawful money of the United States of America.
"EBITDA" - for any period, with respect to HCRI on a consolidated
basis, determined in accordance with GAAP, the sum of net income (or net loss)
for such period plus, the sum of all amounts treated as expenses for: (a)
interest, (b) depreciation, (c) amortization, and (d) all accrued taxes on or
measured by income to the extent included in the determination of such net
income (or net loss); provided, however, that net income (or net loss) shall be
computed without giving effect to extraordinary losses or gains.
"ELIGIBLE ASSIGNEE" - a commercial bank or other financial
institution having a combined capital and surplus of at least One Hundred
Million ($100,000,000) Dollars.
"EMPLOYEE BENEFIT PLAN" - any employee benefit plan within the
meaning of Section 3(3) of ERISA which is subject to ERISA and (a) is maintained
for employees of HCRI, or (b) with respect to which any Loan Party has any
liability.
"ENVIRONMENTAL LAWS AND REGULATIONS" - all federal, state and
local environmental laws, regulations, ordinances, orders, judgments and decrees
applicable to the Borrowers or any other Loan Party, or any of their respective
assets or properties.
"ENVIRONMENTAL LIABILITY" - any liability under any applicable
Environmental Laws and Regulations for any disposal, release or threatened
release of a hazardous substance pollutant or contaminant as those terms are
defined under CERCLA, and any liability which would require a removal, remedial
or response action, as those terms are defined under CERCLA, by any person or by
any environmental regulatory body having jurisdiction over HCRI and its
Subsidiaries and/or any liability arising under any Environmental Laws and
Regulations for HCRI's or any Subsidiary's failure to comply with such laws and
regulations, including without limitation, the failure to comply with or obtain
any applicable environmental permit.
"ENVIRONMENTAL PROCEEDING" - any judgment, action, proceeding or
investigation pending before any court or governmental authority, with respect
to HCRI or any Subsidiary and arising under or relating to any Environmental
Laws and Regulations.
"ERISA" - the Employee Retirement Income Security Act of 1974, as
it may be amended from time to time, and the regulations promulgated thereunder.
"ERISA AFFILIATE" - as applied to any Loan Party, any corporation,
person or trade or business which is a member of a group which is under common
control with any Loan Party, who together with any Loan Party, is treated as a
single employer within the meaning of Section 414(b) - (o) of the Code and, if
applicable, Section 4001(a)(14) and (b) of ERISA.
- 5 -
"EVENT OF DEFAULT" - as defined in Article 8 hereof.
"FACILITY" - a health care facility offering health care-related
products and services, including but not limited to any acute care hospital,
rehabilitation hospital, nursing facility, assisted living facility, retirement
center, long-term care facility, or medical office building, and facilities and
services directly related thereto.
"FACILITY FEE" - as defined in subsection 2.7(b) hereof.
"FACILITY FEE PERCENTAGE" - as at the last day of any fiscal
quarter, the applicable percentage per annum set forth below based upon the
Ratings in effect on such date:
Rating Level Facility Fee Percentage
Level 1
-------
A-/A3 or above 0.150%
Level 2
-------
BBB+/Baa1 0.250%
Level 3
-------
BBB/Baa2 0.300%
Level 4
-------
BBB-/Baa3 0.325%
Level 5
-------
Lower than Level 4 or 0.500%
No Rating
For purposes of the foregoing: (i) if the Ratings established by S&P and Moody's
shall fall within different levels, the Facility Fee Percentage shall be based
upon the higher of the two Ratings unless one of the two Ratings is two or more
levels lower than the other, in which case the Facility Fee Percentage shall be
determined by reference to the level that is one above the lower Rating, and
(ii) if any Rating shall be changed (other than as a result of a change in the
rating system of the applicable Rating Agency), such change shall be effective
as of the date on which it is first announced by the Rating Agency making such
change. Each such change with respect to the Borrowers shall apply at any time
during the period commencing on the effective date of such change and ending on
the date immediately preceding the effective date of the next such change. If
the rating system of any Rating Agency shall change, the parties hereto shall
negotiate in good faith to amend the references to specific ratings in this
definition to reflect such changed rating system.
"FEDERAL FUNDS RATE" - for any day, the weighted average of the
rates on overnight federal funds transactions with member banks of the Federal
Reserve System arranged by federal funds brokers as published by the Federal
Reserve Bank of New York for such day, or if such day is not a Business Day, for
the next preceding Business Day (or, if such rate is not so published for any
such day, the average rate charged to the Agent on such day on such transactions
as reasonably determined by the Agent).
"FEE(S)" - as defined in subsection 2.7(e) hereof.
- 6 -
"FINANCIAL STATEMENTS" - with respect to HCRI, its audited
Consolidated Balance Sheet as at December 31, 2001, together with the related
audited Consolidated Income Statement and Statement of Changes in Cash Flow for
the fiscal year then ended.
"FUNDED INDEBTEDNESS" - as of any date of determination thereof,
all Indebtedness of any Person, determined in accordance with GAAP, which by its
terms matures more than one year after the date of calculation, and any such
Indebtedness maturing within one year from such date which is renewable or
extendable at the option of the obligor to a date more than one year from such
date, including, in any event, the Revolving Credit Loans.
"GAAP" - generally accepted accounting principles in the United
States in effect from time to time.
"HAZARDOUS MATERIALS" - any toxic chemical, hazardous substances,
contaminants or pollutants, medical wastes, infectious wastes, or hazardous
wastes.
"HCRI" - Health Care REIT, Inc., a Delaware corporation.
"HEALTHCARE ASSETS" - as of any date as of which the amount
thereof is to be determined, the aggregate amount equal to the sum of:
(i) the lesser of the Appraised Value or purchase price of
each Facility owned entirely by a Borrower and leased to an Operator; plus
(ii) the lesser of the Appraised Value of any Facility
encumbered by a Mortgage or the outstanding principal amount of the Mortgage
which encumbers any such Facility.
"INDEBTEDNESS" - with respect to any Person, all: (a) liabilities
or obligations, direct and contingent, which in accordance with GAAP would be
included in determining total liabilities as shown on the liability side of a
balance sheet of such Person at the date as of which Indebtedness is to be
determined, including, without limitation, contingent liabilities that in
accordance with such principles, would be set forth in a specific Dollar amount
on the liability side of such balance sheet, and Capitalized Lease Obligations
of such Person; (b) liabilities or obligations of others for which such Person
is directly or indirectly liable, by way of guaranty (whether by direct
guaranty, suretyship, discount, endorsement, take-or-pay agreement, agreement to
purchase or advance or keep in funds or other agreement having the effect of a
guaranty) or otherwise; (c) liabilities or obligations secured by Liens on any
assets of such Person, whether or not such liabilities or obligations shall have
been assumed by it; (d) liabilities or obligations of such Person, direct or
contingent, with respect to letters of credit issued for the account of such
Person and bankers acceptances created for such Person, and (e) monetary
obligations of such Person under a so-called synthetic lease, off-balance sheet
or tax retention lease or under an agreement for the use or possession of
property creating obligations that do not appear on the balance sheet of such
Person but which, upon the insolvency or bankruptcy of such Person, would be
characterized as the indebtedness of such Person (without regard to accounting
treatment).
- 7 -
"INTEREST COVERAGE" - as at the last day of any fiscal quarter,
the quotient, expressed as a percentage (which may be in excess of 100%),
determined by dividing EBITDA by Interest Expense; all of the foregoing
calculated by reference to the immediately preceding four (4) fiscal quarters of
the Borrowers ending on such date of determination.
"INTEREST EXPENSE" - for any period, on a combined basis, the sum
of all interest paid or payable (excluding unamortized debt issuance costs) on
all items of Indebtedness of the Borrowers outstanding at any time during such
period.
"INTEREST PERIOD" - with respect to any LIBOR Loan, each period
commencing on the date such Loan is made or converted from a Loan or Loans of
another Type into a LIBOR Loan, or the last day of the next preceding Interest
Period with respect to such Loan, and ending on the same day 1, 2, 3 or 6 months
thereafter, as the Borrowers may select as provided in Section 2.2 hereof,
except that each such Interest Period which commences on the last LIBOR Business
Day of a calendar month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall end on the
last LIBOR Business Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing: (a) each Interest Period that would otherwise end
on a day which is not a LIBOR Business Day shall end on the next succeeding
LIBOR Business Day (or, if such next succeeding LIBOR Business Day falls in the
next succeeding calendar month, on the next preceding LIBOR Business Day); (b)
no more than seven (7) Interest Periods for LIBOR Loans shall be in effect at
the same time; (c) any Interest Period that commences before the Revolving
Credit Commitment Termination Date shall end no later than the Revolving Credit
Commitment Termination Date; and (d) notwithstanding clause (c) above, no
Interest Period shall have a duration of less than one month. In the event that
the Borrowers fail to select the duration of any Interest Period for any LIBOR
Loan within the time period and otherwise as provided in Section 2.2 hereof,
such LIBOR Loans will be automatically converted into a Base Rate Loan on the
last day of the preceding Interest Period for such LIBOR Loan.
"INTEREST RATE CONTRACTS" - interest rate swap agreements,
interest rate cap agreements, interest rate collar agreements, interest rate
insurance and other agreements or arrangements designed to provide protection
against fluctuation in interest rates, in each case, in form and substance
satisfactory to the Agent and, in each case, with counter-parties satisfactory
to the Agent.
"INVESTMENT" - a Facility or a Mortgage, individually or
collectively, as the case may be.
"KEY" - Key Corporate Capital Inc., a Michigan corporation, in its
capacity as a Bank hereunder.
"LATEST BALANCE SHEET" - as defined in subsection 3.9(a) hereof.
"LEASE RENTAL EXPENSE" - for any period and with respect to any
Facility, the total amount payable during such period by the lessee of such
Facility to any Borrower, including, without limitation, (a) base rent (as
adjusted from time to time), plus (b) all incremental charges to which the
Facility is subject under the lease relating thereto.
- 8 -
"LENDING OFFICE" - with respect to each Bank, with respect to each
Type of Loan, the Lending Office as designated for such Type of Loan below its
name on the signature pages hereof or such other office of such Bank or of an
affiliate of such Bank as it may from time to time specify to the Agent and the
Borrowers as the office at which its Loans of such Type are to be made and
maintained.
"LEVERAGE RATIO" - as defined in subsection 6.9(a) hereof.
"LIBOR BASE RATE" - with respect to any LIBOR Loan, for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/16 of one (1%) percent) quoted by the Reference Bank at
approximately 11:00 a.m. London time (or as soon thereafter as practicable) two
(2) LIBOR Business Days prior to the first day of such Interest Period as the
rate at which the Reference Bank is offered Dollar deposits in the London
interbank market where the LIBOR and foreign currency and exchange operations of
the Reference Bank are customarily conducted, having terms of one (1), two (2),
three (3) or six (6) months and in an amount comparable to the principal amount
of the LIBOR Loan to be made by the Banks to which such Interest Period relates.
"LIBOR BUSINESS DAY" - a Business Day on which dealings in Dollar
deposits are carried out in the London interbank market.
"LIBOR LOAN(S)" - any Loan the interest on which is determined on
the basis of rates referred to in the definition of "LIBOR Base Rate" in this
Article 1.
"LIBOR RATE" - for any LIBOR Loan for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of one (1%) percent) determined by the Agent to be equal to: (a) the LIBOR
Base Rate for such Loan for such Interest Period; DIVIDED BY (b) one (1) MINUS
the Reserve Requirement for such Loan for such Interest Period. The Agent shall
use its best efforts to advise the Borrowers of the LIBOR Rate as soon as
practicable after each change in the LIBOR Rate; PROVIDED, HOWEVER, that the
failure of the Agent to so advise the Borrowers on any one or more occasions
shall not affect the rights of the Banks or the Agent or the obligations of the
Borrowers hereunder.
"LIEN" - any mortgage, deed of trust, pledge, security interest,
encumbrance, lien, claim or charge of any kind (including any agreement to give
any of the foregoing), any conditional sale or other title retention agreement,
any lease in the nature of any of the foregoing, and the filing of or agreement
to give any financing statement under the Uniform Commercial Code of any
jurisdiction.
"LOAN(S)" - as defined in Section 2.1 hereof. Loans of different
Types made or converted from Loans of other Types on the same day (or of the
same Type but having different Interest Periods) shall be deemed to be separate
Loans for all purposes of this Agreement.
"LOAN DOCUMENTS" - this Agreement, the Notes, Interest Rate
Contracts and all other documents executed and delivered in connection herewith
or therewith, including all amendments, modifications and supplements of or to
all such documents.
- 9 -
"LOAN PARTY" - each Borrower and any other Person (other than the
Banks and the Agent) which now or hereafter executes and delivers to any Bank or
the Agent any Loan Document.
"MATERIAL ADVERSE EFFECT" - any fact or circumstance which (a)
materially and adversely affects the business, operation, property or financial
condition of the Borrowers taken as a whole, or (b) has a material adverse
effect on the ability of the Borrowers to perform their respective obligations
under this Agreement, the Notes or the other Loan Documents.
"MOODY'S" - Moody's Investors Service, Inc.
"MORTGAGE(S)" - mortgages of real property constituting a Facility
for which any Borrower is the sole mortgagee.
"MORTGAGE EXPENSE" - for any period and with respect to any
Facility, the total amount payable during such period by the mortgagor of such
Facility to any Borrower, including, without limitation, (a) interest and
principal (as adjusted from time to time) plus (b) all incremental charges to
which the Facility is subject under the mortgage.
"MULTIEMPLOYER PLAN" - a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which any Loan Party or any ERISA Affiliate is
making, or is accruing an obligation to make, contributions or has made, or been
obligated to make, contributions within the preceding six (6) years.
"NET ISSUANCE PROCEEDS" - in respect of any issuance of
Indebtedness or equity, the proceeds in Cash received by HCRI or any of its
Subsidiaries upon or simultaneously with such issuance, net of direct costs of
such issuance and any taxes paid or payable by the recipient of such proceeds.
"NET PROCEEDS" - in respect of any Disposition, the proceeds in
Cash received by any of the Borrowers upon or simultaneously with such
Disposition, net of (i) direct costs of such Disposition, (ii) any taxes paid or
payable by the recipient of such proceeds, and (iii) amounts required to be
applied to repay any Indebtedness secured by a lien on the asset which is the
subject of the Disposition.
"NEW TYPE LOANS" - as defined in Section 2.21 hereof.
"NOTE(S)" - as defined in subsection 2.4(a) hereof.
"OBLIGATIONS" - collectively, all of the indebtedness, liabilities
and obligations of the Borrowers to the Banks and the Agent, whether now
existing or hereafter arising, whether or not currently contemplated, including,
without limitation, those arising under the Loan Documents.
"OPERATOR" - (a) the lessee of any Facility owned or leased by a
Borrower, and (b) the mortgagor of a Facility which is subject to a Mortgage to
the extent that such entity controls the operation of the Facility.
- 10 -
"OPERATOR INTEREST EXPENSE" - for any period, the sum of all
interest on, and all amortization of debt discount and expenses on, all
Indebtedness of an Operator outstanding at any time during such period but
excluding any amounts which constitute Mortgage Expense.
"ORIGINATION FEE" - as defined in subsection 2.7(a) hereof.
"PAYOR" - as defined in Section 2.15 hereof.
"PBGC" - Pension Benefit Guaranty Corporation.
"PERMITTED LIENS" - as to any Person: (a) pledges or deposits by
such Person under workers' compensation laws, unemployment insurance laws,
social security laws, or similar legislation, or good faith deposits in
connection with bids, tenders, contracts (other than for the payment of
Indebtedness of such Person), or leases to which such Person is a party, or
deposits to secure public or statutory obligations of such Person or deposits of
Cash or United States Government Bonds to secure surety, appeal, performance or
other similar bonds to which such Person is a party, or deposits as security for
contested taxes or import duties or for the payment of rent; (b) Liens imposed
by law, such as carriers', warehousemen's, materialmen's and mechanics' liens,
or Liens arising out of judgments or awards against such Person with respect to
which such Person at the time shall currently be prosecuting an appeal or
proceedings for review; (c) Liens for taxes not yet subject to penalties for
non-payment and Liens for taxes the payment of which is being contested as
permitted by Section 6.6 hereof; (d) minor survey exceptions, minor
encumbrances, easements or reservations of, or rights of, others for rights of
way, highways and railroad crossings, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other restrictions as
to the use of real properties; and (e) Liens incidental to the conduct of the
business of such Person or to the ownership of such Person's property that were
not incurred in connection with Indebtedness of such Person, all of which Liens
referred to in this clause (e) do not in the aggregate materially impair the
value of the properties to which they relate or materially impair their use in
the operation of the business taken as a whole of such Person, and as to all the
foregoing only to the extent arising and continuing in the ordinary course of
business.
"PERSON" - an individual, a corporation, a limited liability
company, a partnership, a joint venture, a trust or unincorporated organization,
a joint stock company or other similar organization, a government or any
political subdivision thereof, a court, or any other legal entity, whether
acting in an individual, fiduciary or other capacity.
"PLAN" - at any time an employee pension benefit plan that is
covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code and is either: (a) maintained by HCRI or any member of
the Controlled Group for employees of HCRI, or by HCRI for any other member of
such Controlled Group, or (b) maintained pursuant to a collective bargaining
agreement or any other arrangement under which more than one employer makes
contributions and to which HCRI or any member of the Controlled Group is then
making or accruing an obligation to make contributions or has within the
preceding five plan years made contributions.
- 11 -
"POST-DEFAULT RATE" - (a) in respect of any Loans, a rate per
annum equal to: (i) if such Loans are Base Rate Loans, two (2%) percent above
the Alternate Base Rate as in effect from time to time for Base Rate Loans, or
(ii) if such Loans are LIBOR Loans, two (2%) percent above the rate of interest
in effect thereon at the time of the Event of Default that resulted in the
Post-Default Rate being instituted until the end of the then current Interest
Period therefor and, thereafter, two (2%) above the Alternate Base Rate as in
effect from time to time; and (b) in respect of other amounts payable by the
Borrowers hereunder (other than interest), equal to two (2%) above the Alternate
Base Rate as in effect from time to time.
"PRINCIPAL OFFICE" - the principal office of Key presently located
at 127 Public Square, Cleveland, Ohio 44114-1306.
"PROJECTIONS" - the projections relating to HCRI and its
Subsidiaries for the three (3) year period 2002-2005, including balance sheets,
statements of operations and cash flows (together with related assumptions) as
furnished by HCRI to the Agent.
"PROPERTY" - any estate or interest in any kind of property or
asset, whether real, personal or mixed, and whether tangible or intangible.
"QUARTERLY DATES" - the first day of each June, September,
December and March, the first of which shall be the first such day after the
date of this Agreement, provided that , if any such date is not a LIBOR Business
Day, the relevant Quarterly Date shall be the next succeeding LIBOR Business Day
(or, if the next succeeding LIBOR Business Day falls in the next succeeding
calendar month, then on the next preceding LIBOR Business Day).
"RATINGS" - shall mean the ratings from time to time established
by the Rating Agencies for senior, unsecured, non-credit enhanced long-term debt
of HCRI.
"RATINGS AGENCIES" - Moody's and S&P.
"REFERENCE BANK" - a bank appearing on the display designated as
page "LIBOR" on the Reuters Monitor Money Rates Service (or such other page as
may replace the LIBOR page on that service for the purpose of displaying London
interbank offered rates of major banks); provided, that, if no such offered rate
shall appear on such display, "Reference Bank" shall mean a bank in the London
interbank market as selected by the Agent.
"REGULATION D" - Regulation D of the Board of Governors of the
Federal Reserve System, as the same may be amended or supplemented from time to
time.
"REGULATORY CHANGE" - as to any Bank, any change after the date of
this Agreement in United States federal, or state, or foreign, laws or
regulations (including Regulation D and the laws or regulations that designate
any assessment rate relating to certificates of deposit or otherwise (including
the "Assessment Rate" if applicable to any Loan)) or the adoption or making
after such date of any interpretations, directives or requests applying to a
class of banks, including such Bank, of or under any United States federal, or
state, or foreign laws or regulations (whether or not having the force of law)
by any court or governmental or monetary authority charged with the
interpretation or administration thereof.
- 12 -
"REIT STATUS" - with respect to any Person, (a) the qualification
of such Person as a real estate investment trust under Sections 856 through 860
of the Code, and (b) the applicability to such Person and its shareholders of
the method of taxation provided for in Sections 857 ET SEQ. of the Code.
"REQUIRED BANKS" - at any time, any combination of Banks having at
least 66- 2/3% of the Total Revolving Credit Commitment hereunder, or if the
Total Revolving Credit Commitment has been terminated at such time, any
combination of Banks having at least 66- 2/3% of the aggregate principal amount
of Loans then outstanding.
"REQUIRED PAYMENT" - as defined in Section 2.15 hereof.
"RESERVE REQUIREMENT" - for any LIBOR Loans for any quarterly
period (or, as the case may be, shorter period) as to which interest is payable
hereunder, the average maximum rate at which reserves (including any marginal,
supplemental or emergency reserves) are required to be maintained during such
period under Regulation D by member banks of the Federal Reserve System in New
York City with deposits exceeding One Billion ($1,000,000,000) Dollars against
"Eurocurrency liabilities" (as such term is used in Regulation D). Without
limiting the effect of the foregoing, the Reserve Requirement shall reflect any
other reserves required to be maintained by such member banks by reason of any
Regulatory Change against: (a) any category of liabilities which includes
deposits by references to which the LIBOR Rate for LIBOR Loans is to be
determined as provided in the definition of "LIBOR Base Rate" in this Article 1,
or (b) any category of extensions of credit or other assets which include LIBOR
Loans.
"REVOLVING CREDIT COMMITMENT" - as to each Bank, the obligation of
such Bank to make Loans in the aggregate amount set forth opposite such Bank's
name on the signature pages hereof under the caption "Revolving Credit
Commitment" as such amount is subject to reduction in accordance with the terms
hereof.
"REVOLVING CREDIT COMMITMENT TERMINATION DATE" - August 22, 2005,
or any later date established in accordance with Section 2.23 hereof.
"S&P" - Standard and Poor's Ratings Service, a division of The
McGraw-Hill Companies, Inc.
"SUBSIDIARY" - with respect to any Person, any corporation,
partnership, joint venture or other entity, whether now existing or hereafter
organized or acquired: (a) in the case of a corporation, of which a majority of
the securities having ordinary voting power for the election of directors (other
than securities having such power only by reason of the happening of a
contingency) are at the time owned by such Person and/or one or more
Subsidiaries of such Person, (b) in the case of a partnership or other entity,
in which such Person is a general partner or of which a majority of the
partnership or other equity interests are at the time owned by such Person
and/or one or more of its Subsidiaries, or (c) in the case of a joint venture,
in which such Person is a joint venturer and of which a majority of the
ownership interests are at the time owned by such Person and/or one or more of
its Subsidiaries. Unless the context otherwise
- 13 -
requires, references in this Agreement to "Subsidiary" or "Subsidiaries" shall
be deemed to be references to a Subsidiary or Subsidiaries of HCRI.
"TANGIBLE NET WORTH" - the sum of capital surplus, earned surplus
and capital stock, MINUS deferred charges, intangibles and treasury stock, all
as determined in accordance with GAAP consistently applied.
"TEST PERIOD" - as defined in subsection 2.6(d) hereof.
"TOTAL REVOLVING CREDIT COMMITMENT" - the aggregate obligation of
the Banks to make Loans hereunder up to the aggregate amount of One Hundred
Seventy-Five Million ($175,000,000) Dollars.
"TYPE" - refers to the characteristics of a Loan as a Base Rate
Loan or a LIBOR Loan for a particular Interest Period. All Base Rate Loans are
of the same Type. All LIBOR Loans with identical interest rates and Interest
Periods are of the same Type. All other Loans are of different Types. Interest
Periods are identical if they begin and end on the same days.
"UNENCUMBERED ASSETS" - on any date, net real estate investments
(valued on a book basis) of the Borrowers that are not subject to any Lien which
secures indebtedness for borrowed money of any of the Borrowers plus, without
duplication, loan loss reserves relating thereto, accumulated depreciation
thereon plus Cash, as all such amounts would appear on a consolidated balance
sheet of HCRI prepared as of such date in accordance with GAAP.
"UTILIZATION DATE" - as defined in subsection 2.7(d) hereof.
"Utilization Fee" - as defined in subsection 2.6(d) hereof.
SECTION 1.2 GAAP.
Any accounting terms used in this Agreement that are not
specifically defined herein shall have the meanings customarily given to them in
accordance with GAAP as in effect on the date of this Agreement, except that
references in Article 5 to such principles shall be deemed to refer to such
principles as in effect on the date of the financial statements delivered
pursuant thereto.
ARTICLE 2. REVOLVING CREDIT COMMITMENTS; LOANS.
SECTION 2.1 LOANS.
Each Bank hereby severally agrees, on the terms and subject to the
conditions of this Agreement, to make joint and several loans (individually a
"LOAN" and, collectively, the "LOANS") to the Borrowers during the Credit Period
to and including the Revolving Credit Commitment Termination Date in an
aggregate principal amount at any one time outstanding up to, but not exceeding,
the Revolving Credit Commitment of such Bank as then in effect; PROVIDED, that
the aggregate principal amount of Loans at any one time outstanding shall not
exceed the Total Revolving Credit Commitment as then in effect. Subject to the
terms of this Agreement, during the Credit Period the Borrowers may borrow,
repay and reborrow Loans.
- 14 -
SECTION 2.2 NOTICES RELATING TO LOANS.
The Borrowers shall give the Agent written notice of each
termination or reduction of the Revolving Credit Commitments, each borrowing,
conversion, repayment and prepayment of each Loan and of the duration of each
Interest Period applicable to each LIBOR Loan (in each case, a "BORROWING
NOTICE"). Each such written notice shall be irrevocable and shall be effective
only if received by the Agent not later than 1:00 p.m.(Cleveland, Ohio time) on
the date that is:
(a) In the case of each notice of termination or reduction of
the Revolving Credit Commitments, five (5) Business Days prior to the
date of the related termination or reduction;
(b) In the case of each notice of borrowing and repayment of,
or conversion into, Base Rate Loans, one (1) Business Day prior to the
date of the related borrowing or repayment or conversion; and
(c) In the case of each notice of borrowing or repayment of,
or conversion into, LIBOR Loans, or the duration of an Interest Period
for LIBOR Loans, three (3) LIBOR Business Days prior to the date of the
related borrowing, repayment or conversion or the first day of such
Interest Period.
Each such notice of termination or reduction shall specify the
amount thereof. Each such notice of borrowing, conversion, repayment or
prepayment shall specify the amount (subject to Section 2.1 hereof) and Type of
Loans to be borrowed, converted, repaid or prepaid (and, in the case of a
conversion, the Type of Loans to result from such conversion), the date of
borrowing, conversion, repayment or prepayment (which shall be: (i) a Business
Day in the case of each borrowing or repayment of Base Rate Loans, and (ii) a
LIBOR Business Day in the case of each borrowing, prepayment, or repayment of
LIBOR Loans and each conversion of or into a LIBOR Loan). Each such notice of
the duration of an Interest Period shall specify the Loans to which such
Interest Period is to relate. The Agent shall notify the Banks of the content of
each such Borrowing Notice promptly after its receipt thereof.
SECTION 2.3 DISBURSEMENT OF LOAN PROCEEDS.
The Borrowers shall give the Agent notice of each borrowing
hereunder as provided in Section 2.2 hereof and the Agent shall promptly notify
the Banks thereof. Not later than 1:00 p.m.(Cleveland, Ohio time) on the date
specified for each borrowing hereunder, each Bank shall transfer to the Agent,
by wire transfer or otherwise, but in any event in immediately available funds,
the amount of the Loan to be made by it on such date, and the Agent, upon its
receipt thereof, upon compliance with the requirements of Section 4.1 and 4.2,
as applicable, shall disburse such sum to the Borrowers by depositing the amount
thereof in an account of the Borrowers, or any of them, designated by the
Borrowers maintained with the Agent.
SECTION 2.4 NOTES.
(a) The Loans made by each Bank shall be evidenced by a
single joint and several promissory note of the Borrowers in substantially the
form of Exhibit A hereto (each,
- 15 -
a "NOTE" and collectively, the "NOTES"). Each Note shall be dated the date
hereof, shall be payable to the order of such Bank in a principal amount equal
to such Bank's Revolving Credit Commitment as originally in effect, and shall
otherwise be duly completed. The Notes shall be payable as provided in Sections
2.1 and 2.5 hereof.
(b) Each Bank shall enter on a schedule with respect to its
Note a notation with respect to each Loan made hereunder of: (i) the date and
principal amount thereof and (ii) each payment and repayment of principal
thereof. The failure of any Bank to make a notation on any such schedule as
aforesaid shall not limit or otherwise affect the joint and several obligation
of the Borrowers to repay the Loans in accordance with their respective terms as
set forth herein.
SECTION 2.5 PAYMENT OF LOANS; VOLUNTARY CHANGES IN COMMITMENT;
MANDATORY REPAYMENTS.
(a) All outstanding Loans shall be paid in full not later than
the Revolving Credit Commitment Termination Date.
(b) The Borrowers shall be entitled to terminate or reduce the
Total Revolving Credit Commitment or repay the principal amount of the Loans
provided that the Borrowers shall give notice of such termination, reduction or
repayment to the Agent as provided in Section 2.2 hereof and that any repayment
or partial reduction of the Total Revolving Credit Commitment shall be in the
minimum aggregate amount of Three Million ($3,000,000) Dollars and multiples of
One Million ($1,000,000) Dollars in excess thereof. Any such termination or
reduction in the Total Revolving Credit Commitment shall be permanent and
irrevocable.
(c) Repayment of a LIBOR Loan on a day other than the last day
of the relevant Interest Period relating thereto shall be subject to the
provisions of Section 2.22 hereof; and all repayments of principal (whether
mandatory or voluntary) shall be applied first to Base Rate Loans, then to the
fewest number of Types of LIBOR Loans as possible.
(d) If any of the Borrowers shall at any time agree to a
Disposition, the Borrowers shall promptly notify the Agent of such Disposition
and repay the Loans in an amount equal to the aggregate Net Proceeds of such
Disposition immediately upon receipt thereof.
(e) If HCRI (or any of its Subsidiaries) shall make any public
or private issuance of Indebtedness or equity (other than in connection with any
dividend reinvestment program(s)), HCRI shall promptly notify the Agent of such
issuance and repay the Loans in an amount equal to the aggregate Net Issuance
Proceeds of such issuance immediately upon receipt thereof.
SECTION 2.6 INTEREST.
(a) The Borrowers shall pay to the Agent for the account of
each Bank interest on the unpaid principal amount of each Loan made by such Bank
for the period commencing on the date of such Loan until such Loan shall be paid
in full, at the following rates per annum:
- 16 -
(i) During such periods that such Loan is a Base
Rate Loan, the Alternate Base Rate;
(ii) During such periods that such Loan is a LIBOR
Loan, for each Interest Period relating thereto, the LIBOR Rate for such Loan
for such Interest Period PLUS the Applicable Margin.
(b) Notwithstanding the foregoing, the Borrowers shall pay
interest on any Loan or any installment thereof, and on any other amount payable
by the Borrowers hereunder (to the extent permitted by law) which are not paid
in full when due (whether at stated maturity, by acceleration or otherwise) for
the period commencing on the due date thereof until the same is paid in full at
the applicable Post-Default Rate.
(c) Except as provided in the next sentence, accrued interest
on each Loan shall be payable: (i) in the case of each Base Rate Loan, quarterly
on the Quarterly Dates, (ii) in the case of a LIBOR Loan, on the last day of
each Interest Period for such Loan (and, if such Interest Period exceeds three
months' duration, quarterly, commencing on the first quarterly anniversary of
the first day of such Interest Period), and (iii) in the case of any Loan, upon
the payment or repayment thereof or the conversion thereof into a Loan of
another Type (but only on the principal so paid, repaid or converted); provided,
however, this clause (iii) shall not apply in the case of a conversion of a Base
Rate Loan into a LIBOR Loan. Interest that is payable at the Post-Default Rate
shall be payable from time to time on demand of the Agent. Promptly after the
establishment of any interest rate provided for herein or any change therein,
the Agent will notify the Banks and the Borrowers thereof, PROVIDED THAT the
failure of the Agent to so notify the Banks and the Borrowers shall not affect
the obligations of the Borrowers hereunder or under any of the Notes in any
respect.
(d) In addition to the interest accruing under subsection (a)
above, in the event the daily average amount of outstanding Loans exceeds fifty
(50%) percent of the Total Revolving Credit Commitment during any fiscal quarter
of HCRI (each, a "TEST PERIOD"), the Borrowers shall pay additional interest on
the daily average amount of the Loans outstanding during such Test Period at a
rate per annum equal to one-eighth of one (.125%) percent (the "UTILIZATION
FEE"); PROVIDED, HOWEVER, in the event that the aggregate outstanding principal
balance of the Loans is not below $100,000,000 at all times during each and
every single period comprised of thirty (30) consecutive days during any fiscal
quarter immediately following the Utilization Date (as defined in subsection
2.7(d) below), the Utilization Fee shall be increased by 25 basis points,
PROVIDED, FURTHER, such Utilization Fee shall in no event be increased by more
than 50 basis points. If thereafter, the aggregate outstanding principal balance
of the Loans is below $100,000,000 at all times during any single period
comprised of thirty (30) consecutive days after the Utilization Date, the
Utilization Fee shall be reduced to a rate per annum equal to one-eighth of one
(.125%) percent until such time as the circumstances described in the
immediately preceding proviso reoccur, and the increased Utilization Fee
required as a result thereof is reinstated. The Utilization Fee shall be payable
quarterly on the Quarterly Dates.
(e) Anything in this Agreement or any of the Notes to the
contrary notwithstanding, the obligation of the Borrowers to make payments of
interest shall be subject to the limitation that payments of interest shall not
be required to be made to any Bank to the extent
- 17 -
that such Bank's receipt thereof would not be permissible under the law or laws
applicable to such Bank limiting rates of interest that may be charged or
collected by such Bank. Any such payments of interest that are not made as a
result of the limitation referred to in the preceding sentence shall be made by
the Borrowers to such Bank on the earliest interest payment date or dates on
which the receipt thereof would be permissible under the laws applicable to such
Bank limiting rates of interest that may be charged or collected by such Bank.
Such deferred interest shall not bear interest.
SECTION 2.7 FEES.
(a) Simultaneously with the execution and delivery of this
Agreement, the Borrowers shall pay to the Agent, for the benefit of the Banks
according to their respective Revolving Credit Commitments, a non-refundable
origination fee (the "ORIGINATION FEE"), as set forth in a separate written
agreement.
(b) The Borrowers shall pay to the Agent for the account of
the Banks, pro rata according to their respective Commitments, a facility fee
(the "FACILITY FEE") on the daily average amount of such Bank's Commitment,
for the period from the date hereof to and including the earlier of (i) the date
such Bank's Revolving Credit Commitment is terminated, and (ii) the Revolving
Credit Commitment Termination Date, at the rate per annum equal to the Facility
Fee Percentage from time to time in effect on the amount of the Total Revolving
Credit Commitment. The accrued Facility Fee shall be payable on the Quarterly
Dates, and on the earlier of (i) the date the Total Revolving Credit Commitment
is terminated, or (ii) the Revolving Credit Commitment Termination Date, and in
the event the Borrowers reduce the Total Revolving Credit Commitment as provided
in subsection 2.5(b) hereof, on the effective date of such reduction.
(c) The Borrowers shall (i) pay to Key, for its own account,
an annual administrative agency fee (the "AGENCY FEE"), and (ii) pay to each
of Key and DBSI, for their respective accounts, an arrangement fee (the
"ARRANGEMENT FEE"), all as set forth in a separate written agreement.
(d) If the aggregate outstanding principal balance of the
Loans is not below $100,000,000 at all times during a single period comprised of
thirty (30) consecutive days during any consecutive four (4) fiscal quarters
during the Credit Period (the last day of such four (4) fiscal quarters referred
to as the "UTILIZATION DATE" ), then the Borrowers shall pay (in addition to the
Utilization Fee required to be paid under subsection 2.6(d) above) to the Agent
for the account of the Banks, PRO RATA according to their respective
Commitments, a one-time fee during the Credit Period in an amount equal to
one-quarter of one (.250%) percent of the Total Revolving Credit Commitment as
then in effect.
(e) The Origination Fee, the Facility Fee, the Agency Fee,
Arrangement Fee and the Utilization Fee are hereinafter sometimes referred to
individually as a "FEE" and collectively as the "FEES".
- 18 -
SECTION 2.8 USE OF PROCEEDS OF LOANS.
The proceeds of the Loans hereunder may be used by the
Borrowers solely as follows: (a) for the repayment in full of the outstanding
principal amount of, and all accrued interest on, the outstanding indebtedness
of the Borrowers under the Existing Loan Agreement, (b) to acquire Facilities,
(c) to extend or acquire loans secured by Mortgages, (d) to finance Construction
Investments, (e) for investments that are not prohibited under Section 7.8
hereof and (f) for working capital and general corporate purposes.
SECTION 2.9 COMPUTATIONS.
Interest on all Loans and each Fee shall be computed on the
basis of a year of 360 days and actual days elapsed (including the first day but
excluding the last) occurring in the period for which payable.
SECTION 2.10 MINIMUM AMOUNTS OF BORROWINGS, CONVERSIONS AND
REPAYMENTS.
Except for borrowings, conversions and repayments that exhaust
the full remaining amount of the Revolving Credit Commitments (in the case of
borrowings) or result in the conversion or repayment of all Loans of a
particular Type (in the case of conversions or repayments) or conversions made
pursuant to Section 2.17, subsection 2.18(b) or Section 2.20 hereof, each
borrowing from each Bank, each conversion of Loans of one Type into Loans of
another Type and each repayment of principal of Loans hereunder shall be in a
minimum amount of One Million ($1,000,000) Dollars, in the case of Base Rate
Loans, and Three Million ($3,000,000) Dollars, in the case of LIBOR Loans, and
in either case if in excess thereof, in integral multiples of One Hundred
Thousand ($100,000) Dollars (borrowings, conversions and repayments of different
Types of Loans at the same time hereunder to be deemed separate borrowings,
conversions and repayments for purposes of the foregoing, one for each Type).
The Agent and the Borrowers may make immaterial mutually convenient adjustments
to the thresholds and multiples set forth above in respect of LIBOR Loans.
SECTION 2.11 TIME AND METHOD OF PAYMENTS.
All payments of principal, interest, Fees and other amounts
(including indemnities) payable by the Borrowers hereunder shall be made in
Dollars, in immediately available funds, to the Agent at the Principal Office
not later than 11:00 a.m., Cleveland, Ohio time, on the date on which such
payment shall become due (and the Agent or any Bank for whose account any such
payment is to be made may, but shall not be obligated to, debit the amount of
any such payment that is not made by such time to any ordinary deposit account
of the Borrowers, or any of them, with the Agent or such Bank, as the case may
be). Additional provisions relating to payments are set forth in Section 10.3
hereof. Each payment received by the Agent hereunder for the account of a Bank
shall be paid promptly to such Bank, in like funds, for the account of such
Bank's Lending Office for the Loan in respect of which such payment is made.
- 19 -
SECTION 2.12 LENDING OFFICES.
The Loans of each Type made by each Bank shall be made and maintained
at such Bank's applicable Lending Office for Loans of such Type.
SECTION 2.13 SEVERAL OBLIGATIONS.
The failure of any Bank to make any Loan to be made by it on the date
specified therefor shall not relieve the other Banks of their respective
obligations to make their Loans on such date, but no Bank shall be responsible
for the failure of the other Banks to make Loans to be made by such other Banks.
SECTION 2.14 PRO RATA TREATMENT AMONG BANKS.
Except as otherwise provided herein: (a) each borrowing from the Banks
under Section 2.1 hereof will be made from the Banks and each payment of each
Fee (other than the Agency Fee, the Arrangement Fee and the Origination Fee)
shall be made for the account of the Banks PRO RATA according to the amount of
their respective Commitment; (b) each partial reduction of the Total Revolving
Credit Commitment shall be applied to the Revolving Credit Commitments of the
Banks PRO RATA according to each Bank's respective Revolving Credit Commitment;
(c) each payment and repayment of principal of or interest on Loans will be made
to the Agent for the account of the Banks PRO RATA in accordance with the
respective unpaid principal amounts of the Loans held by such Banks; and (d)
each conversion of Loans of a particular Type under Section 2.17 hereof (other
than conversions provided for by Section 2.20 or 2.21 hereof) shall be made PRO
RATA among the Banks holding Loans of such Type according to the respective
principal amounts of such Loans held by such Banks.
SECTION 2.15 NON-RECEIPT OF FUNDS BY THE AGENT.
Unless the Agent shall have been notified by a Bank or the Borrowers
(the "PAYOR" ) prior to the date on which such Bank is to make payment to the
Agent of the proceeds of a Loan to be made by it hereunder or the Borrowers are
to make a payment to the Agent for the account of one or more of the Banks, as
the case may be (such payment being herein called the "REQUIRED PAYMENT" ),
which notice shall be effective upon receipt, that the Payor does not intend to
make the Required Payment to the Agent, the Agent may assume that the Required
Payment has been made and may, in reliance upon such assumption (but shall not
be required to), make the amount thereof available to the intended recipient on
such date and, if the Payor has not in fact made the Required Payment to the
Agent, the recipient of such payment shall, on demand, repay to the Agent the
amount made available to it together with interest thereon in respect of each
day during the period commencing on the date such amount was so made available
by the Agent until the date the Agent recovers such amount at a rate per annum
equal (i) when the recipient is a Bank, the Federal Funds Rate for such day, or
(ii) the rate of interest applicable to such Loan (when the recipient is the
Borrowers).
SECTION 2.16 SHARING OF PAYMENTS AND SET-OFF AMONG BANKS.
The Borrowers hereby agree that, in addition to (and without limitation
of) any right of setoff, banker's lien or counterclaim a Bank may otherwise
have, each Bank shall be
- 20 -
entitled, at its option, to offset balances held by it at any of its offices
against any principal of or interest on any of its Loans hereunder or any Fee
payable to it, that is not paid when due (regardless of whether such balances
are then due to the Borrowers), in which case it shall promptly notify the
Borrowers and the Agent thereof, provided that its failure to give such notice
shall not affect the validity thereof. If a Bank shall effect payment of any
principal of or interest or Fee on Loans held by it under this Agreement through
the exercise of any right of set-off, banker's lien, counterclaim or similar
right, it shall promptly purchase from the other Banks participations in the
Loans held by the other Banks in such amounts, and make such other adjustments
from time to time as shall be equitable, to the end that all the Banks shall
share the benefit of such payment pro rata in accordance with the unpaid amount
of principal and interest or Fee on the Loans held by each of them. To such end
all the Banks shall make appropriate adjustments among themselves (by the resale
of participations sold or otherwise) if such payment is rescinded or must
otherwise be restored. The Borrowers agree that any Bank so purchasing a
participation in the Loans held by the other Banks may exercise all rights of
set-off, banker's lien, counterclaim or similar rights with respect to such
participation as fully as if such Bank were a direct holder of Loans in the
amount of such participation. Nothing contained herein shall require any Bank to
exercise any such right or shall affect the right of any Bank to exercise and
retain the benefits of exercising, any such right with respect to any other
indebtedness or obligation of the Borrowers.
SECTION 2.17 CONVERSION OF LOANS.
The Borrowers shall have the right to convert Loans of one Type into
Loans of another Type from time to time, PROVIDED THAT: (i) the Borrowers shall
give the Agent notice of each such conversion as provided in Section 2.2 hereof;
(ii) LIBOR Loans may be converted only on the last day of an Interest Period for
such Loans; and (iii) no Base Rate Loan may be converted into a LIBOR Loan or
LIBOR Loan continued as or converted into another LIBOR Loan if on the proposed
date of conversion a Default or an Event of Default exists. The Agent shall use
its best efforts to notify the Borrowers of the effectiveness of such
conversion, and the new interest rate to which the converted Loans are subject,
as soon as practicable after the conversion; PROVIDED, HOWEVER, that any
failure to give such notice shall not affect the Borrowers' obligations, or the
Agent's or the Banks' rights and remedies, hereunder in any way whatsoever.
SECTION 2.18 ADDITIONAL COSTS; CAPITAL REQUIREMENTS.
(a) In the event that any existing or future law or
regulation, guideline or interpretation thereof, by any court or administrative
or governmental authority (foreign or domestic) charged with the administration
thereof, or compliance by any Bank with any request or directive (whether or not
having the force of law) of any such authority shall impose, modify or deem
applicable or result in the application of, any capital maintenance, capital
ratio or similar requirement against loan commitments made by any Bank
hereunder, and the result of any event referred to above is to impose upon any
Bank or increase any capital requirement applicable as a result of the making or
maintenance of such Bank's Revolving Credit Commitment or the obligation of the
Borrowers hereunder with respect to such Revolving Credit Commitment (which
imposition of capital requirements may be determined by each Bank's reasonable
allocation of the aggregate of such capital increases or impositions), then,
within ten (10)
- 21 -
Business Days' of demand made by such Bank as promptly as practicable after it
obtains knowledge that such law, regulation, guideline, interpretation, request
or directive exists and determines to make such demand, the Borrowers shall pay
to such Bank from time to time as specified by such Bank additional amounts
which shall be sufficient to compensate such Bank for such imposition of or
increase in capital requirements together with interest on each such amount from
the date demanded until payment in full thereof at the Post-Default Rate. A
certificate setting forth in reasonable detail the amount necessary to
compensate such Bank as a result of an imposition of or increase in capital
requirements submitted by such Bank to the Borrowers shall be conclusive, absent
manifest error, as to the amount thereof. All references to any "Bank" shall be
deemed to include any participant in such Bank's Revolving Credit Commitment.
(b) In the event that any Regulatory Change shall: (i) change
the basis of taxation of any amounts payable to any Bank under this Agreement or
the Notes in respect of any Loans including, without limitation, LIBOR Loans
(other than taxes imposed on the overall net income of such Bank for any such
Loans by the United States of America or the jurisdiction in which such Bank has
its principal office); or (ii) impose or modify any reserve, Federal Deposit
Insurance Corporation premium or assessment, special deposit or similar
requirements relating to any extensions of credit or other assets of, or any
deposits with or other liabilities of, such Bank (including any of such Loans or
any deposits referred to in the definition of "LIBOR Base Rate" in Article 1
hereof); or (iii) impose any other conditions affecting this Agreement in
respect of Loans, including, without limitation, LIBOR Loans (or any of such
extensions of credit, assets, deposits or liabilities); and the result of any
event referred to in clause (i), (ii) or (iii) above shall be to increase such
Bank's costs of making or maintaining any Loans including, without limitation,
LIBOR Loans, or its Revolving Credit Commitment, or to reduce any amount
receivable by such Bank hereunder in respect of its Commitment (such increases
in costs and reductions in amounts receivable are hereinafter referred to as
"ADDITIONAL COSTS" ) in each case, only to the extent, with respect to LIBOR
Loans, that such Additional Costs are not included in the LIBOR Base Rate
applicable to LIBOR Loans, then, within ten (10) Business Days' of demand made
by such Bank as promptly as practicable after it obtains knowledge that such a
Regulatory Change exists and determines to make such demand (a copy of which
demand shall be delivered to the Agent), the Borrowers shall pay to such Bank
from time to time as specified by such Bank, additional amounts which shall be
sufficient to compensate such Bank for such increased cost or reduction in
amounts receivable by such Bank from the date of such change, together with
interest on each such amount from the date demanded until payment in full
thereof at the Post-Default Rate. All references to any "Bank" shall be deemed
to include any participant in such Bank's Revolving Credit Commitment.
(c) Without limiting the effect of the foregoing provisions of
this Section 2.18, in the event that, by reason of any Regulatory Change, any
Bank either: (i) incurs Additional Costs based on or measured by the excess
above a specified level of the amount of a category of deposits or other
liabilities of such Bank which includes deposits by reference to which the
interest rate on LIBOR Loans is determined as provided in this Agreement or a
category of extensions of credit or other assets of such Bank which includes
LIBOR Loans, or (ii) becomes subject to restrictions on the amount of such a
category of liabilities or assets that it may hold, then, if such Bank so elects
by notice to the Borrowers (with a copy to the Agent), the obligation of such
Bank to make, and to convert Loans of any other Type into, Loans of such
- 22 -
Type hereunder shall be suspended until the date such Regulatory Change ceases
to be in effect (and all Loans of such Type then outstanding shall be converted
into Base Rate Loans or into LIBOR Loans of another duration as the case may be,
in accordance with Sections 2.17 and 2.21).
(d) Determinations by any Bank for purposes of this Section
2.18 of the effect of any Regulatory Change on its costs of making or
maintaining Loans or on amounts receivable by it in respect of Loans, and of the
additional amounts required to compensate such Bank in respect of any Additional
Costs, shall be set forth in writing in reasonable detail describing the
Additional Costs together with a calculation demonstrating the allocation to the
Borrowers of such Additional Costs which shall be conclusive, absent manifest
error.
SECTION 2.19 LIMITATION ON TYPES OF LOANS.
Anything herein to the contrary notwithstanding, if, on or prior to the
determination of an interest rate for any LIBOR Loans for any Interest Period
therefor, the Required Banks determine (which determination shall be
conclusive):
(a) by reason of any event affecting the money markets in the
United States of America or the London interbank market, quotations of interest
rates for the relevant deposits are not being provided in the relevant amounts
or for the relevant maturities for purposes of determining the rate of interest
for such Loans under this Agreement; or
(b) the rates of interest referred to in the definition of
"LIBOR Base Rate" in Article 1 hereof upon the basis of which the rate of
interest on any LIBOR Loans for such period is determined, do not accurately
reflect the cost to the Banks of making or maintaining such Loans for such
period;
then the Agent shall give the Borrowers and each Bank prompt notice thereof (and
shall thereafter give the Borrowers and each Bank prompt notice of the
cessation, if any, of such condition), and so long as such condition remains in
effect, the Banks shall be under no obligation to make Loans of such Type or to
convert Loans of any other Type into Loans of such Type and the Borrowers shall,
on the last day(s) of the then current Interest Period(s) for the outstanding
Loans of the affected Type either repay such Loans in accordance with Section
2.5 hereof or convert such Loan into Loans of another Type in accordance with
Section 2.17 hereof.
SECTION 2.20 ILLEGALITY.
Notwithstanding any other provision in this Agreement, in the event
that it becomes unlawful for any Bank or its applicable Lending Office to: (a)
honor its obligation to make LIBOR Loans hereunder, or (b) maintain LIBOR Loans
hereunder, then such Bank shall promptly notify the Borrowers thereof (with a
copy to the Agent), describing such illegality in reasonable detail (and shall
thereafter promptly notify the Borrowers and the Agent of the cessation, if any,
of such illegality), and such Bank's obligation to make LIBOR Loans and to
convert Base Rate Loans into LIBOR Loans hereunder shall, upon written notice
given by such Bank to the Borrowers, be suspended until such time as such Bank
may again make and maintain LIBOR Loans and such Bank's outstanding LIBOR Loans
shall be converted into Base Rate Loans, in accordance with Sections 2.17 and
2.21 hereof.
- 23 -
SECTION 2.21 CERTAIN CONVERSIONS PURSUANT TO SECTIONS 2.18 AND 2.20.
If the Loans of any Bank of a particular Type (Loans of such Type are
hereinafter referred to as "AFFECTED LOANS" and such Type is hereinafter
referred to as the "AFFECTED TYPE") are to be converted pursuant to Section
2.18 or 2.20 hereof, such Bank's Affected Loans shall be converted into Base
Rate Loans, or LIBOR Loans of another Type, as the case may be (the "NEW TYPE
LOANS"), on the last day(s) of the then current Interest Period(s) for the
Affected Loans (or, in the case of a conversion required by subsection 2.18(b)
or Section 2.20 hereof, on such earlier date as such Bank may specify to the
Borrowers with a copy to the Agent) and, until such Bank gives notice as
provided below that the circumstances specified in Section 2.18 or 2.20 hereof
which gave rise to such conversion no longer exist:
(a) to the extent that such Bank's Affected Loans have been so
converted, all repayments of principal which would otherwise be applied
to such Affected Loans shall be applied instead to its New Type Loans;
(b) all Loans which would otherwise be made by such Bank as
Loans of the Affected Type shall be made instead as New Type Loans and
all Loans of such Bank which would otherwise be converted into Loans of
the Affected Type shall be converted instead into (or shall remain as)
New Type Loans.
SECTION 2.22 INDEMNIFICATION.
The Borrowers shall pay to the Agent for the account of each Bank, upon
the request of such Bank through the Agent, such amount or amounts as shall
compensate such Bank for any loss (including loss of profit), cost or expense
incurred by such Bank (as reasonably determined by such Bank) as a result of:
(a) any payment or repayment or conversion of a LIBOR Loan
held by such Bank on a date other than the last day of an Interest Period for
such LIBOR Loan except pursuant to Sections 2.18 or 2.20 hereof; or
(b) any failure by the Borrowers to borrow a LIBOR Loan held
by such Bank on the date for such borrowing specified in the relevant Borrowing
Notice under Section 2.2 hereof,
such compensation to include, without limitation, an amount equal to: (i) any
loss or expense suffered by such Bank during the period from the date of receipt
of such early payment or repayment or the date of such conversion to the last
day of such Interest Period if the rate of interest obtainable by such Bank upon
the redeployment of an amount of funds equal to such Bank's PRO RATA share of
such payment, repayment or conversion or failure to borrow or convert is less
than the rate of interest applicable to such LIBOR Loan for such Interest
Period, or (ii) any loss or expense suffered by such Bank in liquidating LIBOR
deposits prior to maturity which correspond to such Bank's PRO RATA share of
such payment, repayment, conversion, failure to borrow or failure to convert.
The determination by each such Bank of the amount of any such loss or expense,
when set forth in a written notice to the Borrowers, containing such Bank's
calculation thereof in reasonable detail, shall be presumed correct, in the
absence of manifest error.
- 24 -
SECTION 2.23 EXTENSION OF REVOLVING CREDIT COMMITMENT TERMINATION DATE.
Subject to the following provisions, the Borrowers shall have the
option to extend the initial Revolving Credit Commitment Termination Date to
that date which is 364 days after the initial Revolving Credit Commitment
Termination Date. By written notice to the Agent delivered no later than six (6)
months prior to the initial Revolving Credit Commitment Termination Date, so
long as no Event of Default has occurred since the date of this Agreement, the
Borrowers may request such extension to the initial Revolving Credit Commitment
Termination Date (which request shall be accompanied by a Compliance
Certificate). Promptly upon receipt of such written notice, the Agent shall
deliver a copy to each Bank and the initial Revolving Credit Commitment
Termination Date shall be deemed so extended. In the event that the Borrowers
shall have delivered an extension notice under this Section 2.23, the Borrowers
shall pay to the Agent for the ratable benefit of the Banks on the initial
Revolving Credit Commitment Termination Date, a non-refundable extension fee in
an amount equal to twenty (20) basis points multiplied by the Total Revolving
Credit Commitment, as then in effect.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES.
Each of the Borrowers hereby represents and warrants to the Banks and
the Agent that:
SECTION 3.1 ORGANIZATION.
(a) Each Borrower is duly organized and validly existing under
the laws of its state of organization and has the power to own its assets and to
transact the business in which it is presently engaged and in which it proposes
to be engaged. Schedule 3.1 hereto accurately and completely lists, as to each
Borrower: (i) the state of incorporation or organization of each such entity,
(ii) as to each of them that is a corporation, the classes and number of
authorized and outstanding shares of capital stock of each such corporation, and
(iii) the business in which each of such entities is engaged. All of the
foregoing shares or other equity interests that are issued and outstanding have
been duly and validly issued and are fully paid and non-assessable. Except as
set forth on Schedule 3.1, none of the Borrowers has any Subsidiary.
(b) Each Borrower is in good standing in its state of
organization and in each state in which it is qualified to do business. There
are no jurisdictions other than as set forth on Schedule 3.1 hereto in which the
character of the properties owned or proposed to be owned by each Borrower or in
which the transaction of the business of each Borrower as now conducted or as
proposed to be conducted requires or will require such Borrower to qualify to do
business and as to which failure so to qualify could have a Material Adverse
Effect on such Borrower.
SECTION 3.2 POWER, AUTHORITY, CONSENTS.
Each Borrower has the power to execute, deliver and perform the Loan
Documents to be executed by it. Each Borrower has the power to borrow hereunder
and has taken all necessary action, corporate or otherwise, to authorize the
borrowing hereunder on the terms and conditions of this Agreement. Each Borrower
has taken all necessary action, corporate or otherwise, to authorize the
execution, delivery and performance of the Loan Documents to be
- 25 -
executed by it. No consent or approval of any Person (including, without
limitation, any stockholder of any Borrower), no consent or approval of any
landlord or mortgagee, no waiver of any Lien or right of distraint or other
similar right and no consent, license, certificate of need, approval,
authorization or declaration of any governmental authority, bureau or agency, is
or will be required in connection with the execution, delivery or performance by
each Borrower, or the validity or enforcement of the Loan Documents, except as
set forth on Schedule 3.2 hereto, each of which either has been duly and validly
obtained on or prior to the date hereof and is now in full force and effect, or
is designated on Schedule 3.2 as waived by the Required Banks.
SECTION 3.3 NO VIOLATION OF LAW OR AGREEMENTS.
The execution and delivery by each Borrower of each Loan Document to
which it is a party and performance by it hereunder and thereunder, will not
violate any provision of law and will not conflict with or result in a breach of
any order, writ, injunction, ordinance, resolution, decree, or other similar
document or instrument of any court or governmental authority, bureau or agency,
domestic or foreign, or any certificate of incorporation or by-laws or other
organizational document of each Borrower, or create (with or without the giving
of notice or lapse of time, or both) a default under or breach of any agreement,
bond, note or indenture to which any Borrower is a party, or by which any
Borrower is bound or any of their respective properties or assets is affected,
except for such defaults and breaches which in the aggregate could not have a
Material Adverse Effect on the Borrowers, or result in the imposition of any
Lien of any nature whatsoever upon any of the properties or assets owned by or
used in connection with the business of each Borrower.
SECTION 3.4 DUE EXECUTION, VALIDITY, ENFORCEABILITY.
This Agreement and each other Loan Document to which each Borrower is a
party has been duly executed and delivered by each Borrower that is a party
thereto and each constitutes the valid and legally binding obligation of each
Borrower, enforceable in accordance with its terms, except as such enforcement
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
or other similar laws, now or hereafter in effect, relating to or affecting the
enforcement of creditors' rights generally and except that the remedy of
specific performance and other equitable remedies are subject to judicial
discretion.
SECTION 3.5 TITLE TO PROPERTIES.
Each of the Borrowers has good and marketable title in fee simple to,
or valid leasehold interests in, all real property necessary or used in the
ordinary course of its business, except for such defects in title as could not,
individually or in the aggregate, have a Material Adverse Effect.
SECTION 3.6 JUDGMENTS, ACTIONS, PROCEEDINGS.
Except as set forth on Schedule 3.6 hereto, there are no outstanding
judgments, investigations, actions or proceedings, including, without
limitation, any Environmental Proceeding, pending before any court or
governmental authority, bureau or agency, with respect to or, to the best of
each Borrower's knowledge, threatened against or affecting such Borrower or any
of its assets involving, in the case of any court proceeding, a claim in excess
of Two
- 26 -
Hundred Fifty Thousand ($250,000) Dollars, nor, to the best of each Borrower's
knowledge, is there any reasonable basis for the institution of any such action
or proceeding that is probable of assertion, nor are there any such actions or
proceedings in which any Borrower is a plaintiff or complainant.
SECTION 3.7 NO DEFAULTS, COMPLIANCE WITH LAWS.
Except as set forth on Schedule 3.7 hereto, none of the Borrowers is in
default under any agreement, ordinance, resolution, decree, bond, note,
indenture, order or judgment to which it is a party or by which it is bound, or
any other agreement or other instrument by which any of the properties or assets
owned by it or used in the conduct of its business is affected, which default
could have a Material Adverse Effect on such Borrower. Each Borrower has
complied and is in compliance in all respects with all applicable laws,
ordinances and regulations, resolutions, ordinances, decrees and other similar
documents and instruments of all courts and governmental authorities, bureaus
and agencies, domestic and foreign, including, without limitation, all
applicable provisions of the Americans with Disabilities Act (42 U.S.C.
ss.12101-12213) and the regulations issued thereunder and all applicable
Environmental Laws and Regulations, non-compliance with which could have a
Material Adverse Effect on such Borrower.
SECTION 3.8 BURDENSOME DOCUMENTS.
Except as set forth on Schedule 3.8 hereto, none of the Borrowers is a
party to or bound by, nor are any of the properties or assets owned by any of
the Borrowers used in the conduct of their respective businesses affected by,
any agreement, ordinance, resolution, decree, bond, note, indenture, order or
judgment, including, without limitation, any of the foregoing relating to any
Environmental Liability, that materially and adversely affects their respective
businesses, assets or conditions, financial or otherwise.
SECTION 3.9 FINANCIAL STATEMENTS; PROJECTIONS.
(a) Each of the Financial Statements is complete and presents
fairly the consolidated financial position of HCRI and its Subsidiaries as at
its date, and has been prepared in accordance with GAAP. None of the Borrowers
to which any of the Financial Statements relates, has any material obligation,
liability or commitment, direct or contingent (including, without limitation,
any Environmental Liability), that is not reflected in the Financial Statements.
There has been no material adverse change in the financial position or
operations of any of the Borrowers since the date of the latest balance sheet
included in the Financial Statements (the "LATEST BALANCE SHEET"). Each
Borrower's fiscal year is the twelve-month period ending on December 31 in each
year.
(b) The Projections have been prepared on the basis of the
assumptions accompanying them and reflect as of the date thereof HCRI's good
faith projections, after reasonable analysis, of the matters set forth therein,
based on such assumptions.
- 27 -
SECTION 3.10 TAX RETURNS.
Each Borrower has filed all federal, state and local tax returns
required to be filed by it and has not failed to pay any taxes, or interest and
penalties relating thereto, on or before the due dates thereof. Except to the
extent that reserves therefor are reflected in the Financial Statements: (i)
there are no material federal, state or local tax liabilities of any of the
Borrowers, due or to become due for any tax year ended on or prior to the date
of the Latest Balance Sheet relating to such entity, whether incurred in respect
of or measured by the income of such entity, that are not properly reflected in
the Latest Balance Sheet relating to such entity, and (ii) there are no material
claims pending or, to the knowledge of each of the Borrowers, proposed or
threatened against such Borrower for past federal, state or local taxes, except
those, if any, as to which proper reserves are reflected in the Financial
Statements.
SECTION 3.11 INTANGIBLE ASSETS.
Each Borrower possesses all patents, trademarks, service marks, trade
names, and copyrights, and rights with respect to the foregoing, necessary to
conduct its business as now conducted and as proposed to be conducted, without
any conflict with the patents, trademarks, service marks, trade names, and
copyrights and rights with respect to the foregoing, of any other Person.
SECTION 3.12 REGULATION U.
No part of the proceeds received by any of the Borrowers from the Loans
will be used directly or indirectly for: (a) any purpose other than as set forth
in Section 2.8 hereof, or (b) the purpose of purchasing or carrying, or for
payment in full or in part of Indebtedness that was incurred for the purposes of
purchasing or carrying, any "margin stock", as such term is defined in Section
221.3 of Regulation U of the Board of Governors of the Federal Reserve System,
12 C.F.R., Chapter II, Part 221.
SECTION 3.13 NAME CHANGES, MERGERS, ACQUISITIONS.
Except as set forth on Schedule 3.13 hereto, none of the Borrowers has
within the six-year period immediately preceding the date of this Agreement
changed its name, been the surviving entity of a merger or consolidation, or
acquired all or substantially all of the assets of any Person.
SECTION 3.14 FULL DISCLOSURE.
Neither the Financial Statements nor any certificate, opinion, or any
other statement made or furnished in writing to the Agent or any Bank by or on
behalf of the Borrowers in connection with this Agreement or the transactions
contemplated herein, contains any untrue statement of a material fact, or omits
to state a material fact necessary in order to make the statements contained
therein or herein not misleading, as of the date such statement was made. There
is no fact known to any Borrower that has, or would in the now foreseeable
future have, a Material Adverse Effect on such Borrower, which fact has not been
set forth herein, in the Financial Statements or any certificate, opinion or
other written statement so made or furnished to the Agent or the Banks.
- 28 -
SECTION 3.15 LICENSES AND APPROVALS.
(a) Each Borrower has all necessary licenses, permits and
governmental authorizations, including, without limitation, licenses, permits
and authorizations arising under or relating to Environmental Laws and
Regulations, to own and operate its properties and to carry on its business as
now conducted, the absence of which would have a Material Adverse Effect on the
Borrowers.
(b) To the best of HCRI's knowledge, no violation exists of
any applicable law pertaining to the ownership or operation of any Facility or
any Operator that would have a reasonable likelihood of leading to revocation of
any license necessary for the operation of such Facility.
SECTION 3.16 ERISA.
(a) Except as set forth on Schedule 3.16 hereto, no Employee
Benefit Plan is maintained or has ever been main-tained by any Loan Party or any
ERISA Affiliate, nor has any Loan Party or any ERISA Affiliate ever contributed
to a Multiemployer Plan.
(b) There are no agreements which will provide payments to any
officer, employee, shareholder or highly compensated individual which will be
"parachute payments" under 280G of the Code that are nondeductible to any Loan
Party and which will be subject to tax under Section 4999 of the Code for which
any Loan Party will have a material withholding liability.
SECTION 3.17 REIT STATUS.
HCRI currently has REIT Status and has maintained REIT Status on a
continuous basis since its formation. None of the Subsidiaries of HCRI currently
has REIT Status. Article 4. Conditions to the Loans. Section 4.1 Conditions to
Initial Loan(s). The obligation of each Bank to execute and deliver this
Agreement shall be subject to the fulfillment (to the satisfaction of the Agent)
of the following conditions precedent:
(a) Each Borrower shall have executed and delivered to each
Bank its Note.
(b) (i) The Borrowers shall have paid to the Agent, for the
benefit of the Banks, the Origination Fee.
(ii) The Borrowers shall have paid to Key and DBSI,
as the case may be, the Agency Fee and the Arrangement Fee.
- 29 -
(c) Counsel to the Borrowers shall have delivered its opinion
to, and in form and substance satisfactory to, the Agent.
(d) The Agent shall have received complete copies of the
Financial Statements and the Projections, each certified as such in a
certificate executed by an executive officer of HCRI.
(e) The Agent shall have received copies of the following:
(i) All of the consents, approvals and waivers referred
to on Schedule 3.2 hereto (except only those which, as stated on Schedule 3.2,
shall not be delivered);
(ii) The certificates of incorporation (or other
organizational documents) of each of the Borrowers, certified by the Secretary
of State of their respective states of organization;
(iii) The by-laws (or other organizational documents) of
each of the Borrowers, certified by their respective secretaries;
(iv) All action taken by each of the Borrowers,
corporate or otherwise, to authorize the execution, delivery and performance of
each of the Loan Documents to which it is a party and the transactions
contemplated thereby, certified by their respective secretaries;
(v) Good standing certificates as of a recent date, with
respect to each of the Borrowers from the Secretary of State of their respective
states of organization and each state in which each of them is qualified to do
business; and
(vi) An incumbency certificate (with specimen signatures)
with respect to each of the Borrowers.
(f) (i) Each of the Borrowers shall have complied and shall
then be in compliance with all of the terms, covenants and conditions of this
Agreement;
(ii) After giving effect to the initial Loan, there shall
exist no Default or Event of Default hereunder; and
(iii) The representations and warranties contained in
Article 3 hereof shall be true and correct on the date hereof;
and the borrowing by the Borrowers of the initial Loan hereunder shall
constitute a representation and warranty by the Borrowers as of the date hereof
that the conditions set forth in this subsection 4.1(f) have been satisfied.
(g) All legal matters incident to the initial Loans shall be
satisfactory to counsel to the Agent.
- 30 -
SECTION 4.2 CONDITIONS TO SUBSEQUENT LOANS.
The obligation of the Banks to make the initial Loan and each Loan
subsequent to the date hereof shall be subject to the fulfillment (to the
satisfaction of the Agent) of the following conditions precedent:
(a) The Agent shall have received a Borrowing Notice in
accordance with Section 2 .2 hereof.
(b) The Agent shall have received a certificate executed by an
executive officer of HCRI demonstrating that after giving effect to the
incurrence of such Loan and the application of the proceeds thereof, the
Borrowers' Cash on hand including such Loans does not exceed $20,000,000.
(c) Each of the Borrowers shall have complied and shall then
be in compliance with all of the terms, covenants and conditions of this
Agreement;
(i) After giving effect to the requested Loan, there
shall exist no Default or Event of Default hereunder; and
(ii) The representations and warranties contained in
Article 3 hereof shall be true and correct on and as of such date as if made on
and as of such date (provided Section 3.6 shall relate only to claims in excess
of $1,500,000 as of the date of such requested Loan);
and the borrowing by the Borrowers of the requested Loan hereunder shall
constitute a representation and warranty by the Borrowers as of the date of such
Loan that the conditions set forth in this subsection 4.2(c) have been
satisfied.
(d) All legal matters incident to such Loan shall be
satisfactory to counsel for the Agent.
ARTICLE 5. DELIVERY OF FINANCIAL REPORTS, DOCUMENTS AND OTHER
INFORMATION.
While the Revolving Credit Commitments are outstanding, and, in the
event any Loan remains outstanding, so long as any of the Borrowers are indebted
to the Banks or the Agent and until payment in full of the Notes and full and
complete performance of all of its other Obligations arising hereunder, HCRI
shall deliver to each Bank:
SECTION 5.1 ANNUAL FINANCIAL STATEMENTS.
Annually, as soon as available, but in any event within ninety
(90) days after the last day of each of its fiscal years, a consolidated balance
sheet of HCRI and its Subsidiaries as at such last day of the fiscal year, and
consolidated statements of income and retained earnings and statements of cash
flow, for such fiscal year, each prepared in accordance with generally accepted
accounting principles consistently applied, in reasonable detail, and certified
without qualification by a nationally recognized independent public accounting
firm or by any other certified public accounting firm satisfactory to the Agent
as fairly presenting the financial
- 31 -
position and results of operations of HCRI and its Subsidiaries as at and for
the year ending on its date and as having been prepared in accordance with GAAP;
PROVIDED, HOWEVER, HCRI may satisfy its obligations to deliver the financial
statements described in this Section 5.1 by furnishing to the Banks a copy of
its annual report on Form 10-K in respect of such fiscal year together with the
financial statements required to be attached thereto, provided HCRI is required
to file such annual report on Form 10-K with the Securities and Exchange
Commission and such filing is actually made.
SECTION 5.2 QUARTERLY FINANCIAL STATEMENTS.
As soon as available, but in any event within forty-five (45) days
after the end of each of HCRI's fiscal quarters, a consolidated balance sheet of
HCRI and the Subsidiaries as of the last day of such quarter and consolidated
statements of income and retained earnings and statements of cash flow, for such
quarter, and on a comparative basis figures for the corresponding period of the
immediately preceding fiscal year, all in reasonable detail, each such statement
to be certified in a certificate of the chief financial officer of HCRI as
accurately presenting the financial position and the results of operations of
HCRI and its Subsidiaries as at its date and for such quarter and as having been
prepared in accordance with GAAP (subject to year-end audit adjustments);
PROVIDED, HOWEVER, HCRI may satisfy its obligations to deliver the financial
statements described in this Section 5.2 by furnishing to the Banks a copy of
its quarterly report on Form 10-Q in respect of such fiscal quarter together
with the financial statements required to be attached thereto, provided HCRI is
required to file such quarterly report on Form 10-Q with the Securities and
Exchange Commission and such filing is actually made.
SECTION 5.3 COMPLIANCE INFORMATION.
Promptly after a written request therefor, such other financial data or
information evidencing compliance with the requirements of this Agreement, the
Notes and the other Loan Documents, as any Bank may reasonably request from time
to time.
SECTION 5.4 NO DEFAULT CERTIFICATE.
At the same time as it delivers the financial statements required under
the provisions of Sections 5.1 and 5.2 hereof, a certificate of the chief
executive officer or chief financial officer of HCRI to the effect that no Event
of Default hereunder and that no default under any other agreement to which any
Borrower is a party or by which it is bound, or by which, to the best knowledge
of HCRI or any other Borrower, any of its properties or assets, taken as a
whole, may be materially affected, and no event which, with the giving of notice
or the lapse of time, or both, would constitute such an Event of Default or
default, exists, or, if such cannot be so certified, specifying in reasonable
detail the exceptions, if any, to such statement. Such certificate shall be
accompanied by a detailed calculation indicating compliance with the covenants
contained in Section 6.9 hereof in the form annexed hereto as Exhibit D.
SECTION 5.5 CERTIFICATE OF ACCOUNTANTS.
At the same time as it delivers the financial statements required under
the provisions of Section 5.1 hereof, a certificate of the independent certified
public accountants of
- 32 -
HCRI addressed specifically to both HCRI and the Agent to the effect that during
the course of their audit of the operations of HCRI and its Subsidiaries and its
condition as of the end of the fiscal year, nothing has come to their attention
which would indicate that a Default or an Event of Default hereunder has
occurred or that there was any violation of the covenants of HCRI and its
Subsidiaries contained in Section 6.9 or Article 7 of this Agreement, or, if
such cannot be so certified, specifying in reasonable detail the exceptions, if
any, to such statement.
SECTION 5.6 INTENTIONALLY OMITTED.
SECTION 5.7 BUSINESS PLAN AND PROJECTIONS.
Not later than January 31st in each year, copies of HCRI's business
plan and financial projections for the upcoming three (3) fiscal years (together
with a copy in writing of the assumptions on which such business plan and
projections were based), each certified by HCRI's chief financial officer and
illustrating the projected income statements, balance sheets and statements of
changes in cash flow on a consolidated basis.
SECTION 5.8 QUARTERLY FACILITY REPORTS.
(a) As soon as available but in any event not less than
seventy-five (75) days after the end of each fiscal quarter of HCRI, a report
with respect to the Facilities and the Operators, the form of which is set forth
on Schedule 5.8 annexed hereto and which report shall contain information for
the quarterly period immediately prior to the fiscal quarter for which the
report is submitted.
(b) Within thirty (30) days after the receipt thereof, a copy
of the annual audited financial statements of each publicly-held Operator
delivered to HCRI by each such Operator.
(c) Such other information regarding the financial condition
of the Operators as Key or DBSI may from time to time reasonably request,
subject to each of their agreement that all such information shall be and remain
confidential and none of such information may be distributed to any other Person
without HCRI's prior consent.
SECTION 5.9 ACCOUNTANTS' REPORTS.
Promptly upon receipt thereof, copies of all material reports submitted
to HCRI by its independent accountants in connection with any annual or interim
audit of the books of HCRI or its Subsidiaries made by such accountants which
material reports are a necessary part of such annual or interim audit.
SECTION 5.10 COPIES OF DOCUMENTS.
Promptly upon their becoming available, copies of any: (i) financial
statements, non-routine reports and notices (other than routine correspondence),
any of which are of a material nature, requests for waivers and proxy
statements, in each case, delivered by HCRI or any of its Subsidiaries to any of
their respective existing lending institutions or creditors; (ii) correspondence
or notices received by HCRI from any federal, state or local governmental
- 33 -
authority that regulates the operations of HCRI or any of its Subsidiaries,
relating to an actual or threatened change or development that would be
materially adverse to HCRI or any Subsidiary; (iii) registration statements and
any amendments and supplements thereto, and any regular and periodic reports, if
any, filed by HCRI or any of its Subsidiaries with any securities exchange or
with the Securities and Exchange Commission or any governmental authority
succeeding to any or all of the functions of the said Commission; and (iv) at
the request of the Agent, any appraisals received by HCRI or any of its
Subsidiaries with respect to the properties or assets of HCRI or its
Subsidiaries during the term of this Agreement.
SECTION 5.11 NOTICES OF DEFAULTS.
Promptly, notice of the occurrence of any Default or Event of Default,
or any event that would constitute or cause a Material Adverse Effect in the
condition, financial or otherwise, or the operations of HCRI or any of the
Subsidiaries.
SECTION 5.12 ERISA NOTICES AND REQUESTS.
(a) Concurrently with such filing, a copy of each Form 5500
that is filed with respect to each Plan with the IRS; and
(b) Promptly, upon their becoming available, copies of: (i)
all correspondence with the PBGC, the Secretary of Labor or any representative
of the IRS with respect to any Plan, relating to an actual or threatened change
or development that would be materially adverse to the Borrower(s); (ii) all
actuarial valuations received by the Borrower(s) with respect to any Plan; and
(iii) any notices of Plan termination filed by any Plan Administrator (as those
terms are used in ERISA) with the PBGC and of any notices from the PBGC to the
Borrower(s) with respect to the intent of the PBGC to institute involuntary
termination proceedings.
SECTION 5.13 ADDITIONAL INFORMATION.
Such other material additional information regarding the business,
affairs and condition of the Borrowers as Key or DBSI may from time to time
request, including, without limitation, as soon as available but in any event
not less than forty-five (45) days after the end of each fiscal quarter of HCRI,
schedules, in form and substance satisfactory to the Agent, with respect to HCRI
on a consolidated basis, of recorded liabilities, unfunded commitments,
contingent liabilities, any off balance sheet financings including synthetic
lease transactions and sale-leaseback arrangements and other similar material
items, in each case, covering such quarter.
ARTICLE 6. AFFIRMATIVE COVENANTS.
While the Revolving Credit Commitments are outstanding, and, in the
event any Loan remains outstanding, so long as any Borrower is indebted to the
Banks or the Agent, and until payment in full of the Notes and full and complete
performance of all of its other Obligations arising hereunder, each Borrower
shall:
- 34 -
SECTION 6.1 BOOKS AND RECORDS.
Keep proper books of record and account in a manner reasonably
satisfactory to the Agent in which full and true entries shall be made of all
dealings or transactions in relation to its business and activities.
SECTION 6.2 INSPECTIONS AND AUDITS.
Permit the Agent to make or cause to be made (prior to an Event of
Default, at the Banks' expense and after the occurrence of and during the
continuance of an Event of Default, at the Borrowers' expense), inspections and
audits of any books, records and papers of HCRI or any Subsidiary and to make
extracts therefrom and copies thereof, or to make appraisals, inspections and
examinations of any properties and facilities of HCRI or any Subsidiary, on
reasonable notice, at all such reasonable times and as often as any Bank may
reasonably require, in order to assure that the Borrowers are and will be in
compliance with their obligations under the Loan Documents or to evaluate the
investment in the then outstanding Notes. Notwithstanding the foregoing, the
Borrowers agree that the Agent shall be permitted to conduct or cause to be
conducted an annual field audit at the Borrowers' expense.
SECTION 6.3 MAINTENANCE AND REPAIRS.
Cause to be maintained in good repair, working order and condition,
subject to normal wear and tear, all material properties and assets from time to
time owned by HCRI or any Subsidiary and used in or necessary for the operation
of its businesses, and make or cause to be made all reasonable repairs,
replacements, additions and improvements thereto.
SECTION 6.4 CONTINUANCE OF BUSINESS.
Do, or cause to be done, all things reasonably necessary to preserve
and keep in full force and effect the corporate existence of HCRI or any
Subsidiary and all permits, rights and privileges necessary for the proper
conduct of its business, and continue to engage in the same line of business and
comply in all material respects with all applicable laws, regulations and
orders.
SECTION 6.5 COPIES OF CORPORATE DOCUMENTS.
Subject to the prohibitions set forth in Section 7.6 hereof, promptly
deliver to the Agent copies of any amendments or modifications to the
certificate of incorporation (or other applicable organizational documents) and
by-laws of HCRI or any Subsidiary, certified with respect to the certificate of
incorporation (or other organizational documents) by the Secretary of State of
its state of incorporation and, with respect to the by-laws, by the secretary or
assistant secretary of such corporation.
SECTION 6.6 PERFORM OBLIGATIONS.
Pay and discharge all of the obligations and liabilities of HCRI or any
Subsidiary, including, without limitation, all taxes, assessments and
governmental charges upon its income and properties when due, unless and to the
extent only that such obligations, liabilities, taxes,
- 35 -
assessments and governmental charges shall be contested in good faith and by
appropriate proceedings and that, to the extent required by GAAP, proper and
adequate book reserves relating thereto are established by HCRI or any
Subsidiary, and then only to the extent that a bond is filed in cases where the
filing of a bond is necessary to avoid the creation of a Lien against any of its
properties.
SECTION 6.7 NOTICE OF LITIGATION.
Promptly notify the Agent in writing of any litigation, legal
proceeding or dispute, other than disputes in the ordinary course of business
or, whether or not in the ordinary course of business, involving amounts in
excess of Two Million Five Hundred Thousand ($2,500,000) Dollars, affecting HCRI
or any Subsidiary whether or not fully covered by insurance, and regardless of
the subject matter thereof (excluding, however, any actions relating to workers'
compensation claims or negligence claims relating to use of motor vehicles, if
fully covered by insurance, subject to deductibles).
SECTION 6.8 INSURANCE.
(a) (i) Maintain or cause to maintain with responsible
insurance companies reasonably acceptable to the Agent such insurance on the
properties of HCRI or any Subsidiary, in such amounts and against such risks as
is customarily maintained by similar businesses and cause each Operator to do
so; (ii) file with the Agent upon its request a detailed list of the insurance
then in effect, stating the names of the insurance companies, the amounts and
rates of the insurance, the dates of the expiration thereof and the properties
and risks covered thereby; and (iii) within ten (10) days after notice in
writing from the Agent, obtain such additional insurance as the Agent may
reasonably request; and
(b) Carry all insurance available through the PBGC or any
private insurance companies covering its obligations to the PBGC .
SECTION 6.9 FINANCIAL COVENANTS.
Have or maintain, with respect to HCRI, on a consolidated basis, as at
the last day of each fiscal quarter of HCRI:
(a) A ratio of Funded Indebtedness to Tangible Net Worth (the
"LEVERAGE RATIO") of not more than 1.20:1.00.
(b) Tangible Net Worth of not less than $700,000,000, plus
100% of the Net Issuance Proceeds received by HCRI (or any of its
Subsidiaries) in connection with the issuance of any equity interest in
HCRI (or any of its Subsidiaries) other than any such equity interests
issued in connection with any dividend reinvestment program(s).
(c) Interest Coverage of not less than 250%.
(d) A ratio of Unencumbered Assets to unsecured Indebtedness
of not less than 2.10 to 1.00.
- 36 -
SECTION 6.10 NOTICE OF CERTAIN EVENTS.
(a) Promptly notify the Agent in writing of the occurrence of
any Reportable Event, as defined in Section 4043 of ERISA, if a notice of such
Reportable Event is required under ERISA to be delivered to the PBGC within 30
days after the occurrence thereof, together with a description of such
Reportable Event and a statement of the action the Borrower(s) or the ERISA
Affiliate intends to take with respect thereto, together with a copy of the
notice thereof given to the PBGC.
(b) Promptly notify the Agent in writing if the Borrower(s) or
ERISA Affiliate receives an assessment of withdrawal liability in connection
with a complete or partial withdrawal with respect to any Multiemployer Plan,
together with a statement of the action that such Borrower(s) or ERISA Affiliate
intends to take with respect thereto.
(c) Promptly notify the Agent in writing if any Borrower
receives: (i) any notice of any violation or administrative or judicial
complaint or order having been filed or about to be filed against such Borrower
alleging violations of any Environmental Law and Regulation, or (ii) any notice
from any governmental body or any other Person alleging that such Borrower is or
may be subject to any Environmental Liability; and promptly upon receipt
thereof, provide the Agent with a copy of such notice together with a statement
of the action such Borrower intends to take with respect thereto.
SECTION 6.11 COMPLY WITH ERISA.
Materially comply with all applicable provisions of ERISA and the Code
now or hereafter in effect.
SECTION 6.12 ENVIRONMENTAL COMPLIANCE.
Operate or cause to operate all property owned, operated or leased by
it in compliance with all Environmental Laws and Regulations, such that no
Environmental Liability arises under any Environmental Laws and Regulations,
which would result in a Lien on any property of any Borrower.
SECTION 6.13 MAINTENANCE OF REIT STATUS.
Maintain its REIT Status.
SECTION 6.14 OPERATOR CONCENTRATION.
Ensure that not more than twenty (20%) percent of the Borrowers'
Investments are maintained with a single Operator (including any Affiliates of
such Operator).
ARTICLE 7. NEGATIVE COVENANTS.
While the Revolving Credit Commitments are outstanding, and, in the
event any Loan remains outstanding, so long as any Borrower is indebted to the
Banks or the Agent and until payment in full of the Notes and full and complete
performance of all of its other Obligations
- 37 -
arising hereunder, HCRI shall not and shall not permit any of its Subsidiaries
to do, agree to do, or permit to be done, any of the following:
SECTION 7.1 INDEBTEDNESS.
Create, incur, permit to exist or have outstanding any Indebtedness,
except:
(a) Indebtedness of the Borrowers to the Banks and the Agent
and under this Agreement and the Notes;
(b) Taxes, assessments and governmental charges, non-interest
bearing accounts payable and accrued liabilities, in any case not more
than 90 days past due from the original due date thereof (unless the
failure to satisfy such obligations is pursuant to the good faith
contest by appropriate dispute or other proceedings as set forth in
Section 6.6 hereof), and non-interest bearing deferred liabilities
other than for borrowed money (e.g., deferred compensation and deferred
taxes), in each case incurred and continuing in the ordinary course of
business;
(c) Indebtedness secured by the security interests referred to
in subsection 7.2(b) hereof;
(d) Indebtedness consisting of contingent obligations
permitted by Section 7.3 hereof;
(e) Unsecured Indebtedness;
(f) In addition to the Indebtedness otherwise permitted under
this Section 7.1, Indebtedness secured by Liens provided that
immediately after giving effect to the incurrence of such Indebtedness:
the total outstanding amount of such Indebtedness of HCRI, on a
consolidated basis, plus the total outstanding amount of Indebtedness
permitted under subsection 7.1(c), does not exceed fifteen (15%)
percent of Consolidated Total Assets, and, provided further, the total
outstanding amount of any such Indebtedness which is on a recourse
basis to HCRI or any of its Subsidiaries, plus the total outstanding
amount of Indebtedness permitted under subsection 7.1(c), does not
exceed eight (8%) percent of Consolidated Total Assets; and
(g) As set forth on Schedule 7.1 hereto.
SECTION 7.2 LIENS.
Create, or assume or permit to exist, any Lien on any of the properties
or assets of the Borrower or any of its Subsidiaries, whether now owned or
hereafter acquired, except:
(a) Permitted Liens;
(b) Purchase money Liens on property acquired or held by HCRI
or its Subsidiaries in the ordinary course of business, securing Indebtedness
incurred or assumed for the purpose of financing all or any part of the cost of
acquiring such property; provided, that (i) any such Lien attaches to such
property concurrently with or within twenty (20) days after the
- 38 -
acquisition thereof, (ii) such Lien attaches solely to the property so acquired
in such transaction, (iii) the principal amount of the debt secured thereby does
not exceed 100% of the cost of such property, and (iv) the aggregate amount of
all such Indebtedness on a consolidated basis for HCRI and its Subsidiaries
shall not at any time exceed $1,000,000.00;
(c) Liens securing Indebtedness created after the date hereof
and permitted under subsection 7.1(f) hereof; and
(d) As set forth on Schedule 7.2 hereto.
SECTION 7 .3 GUARANTIES.
Assume, endorse, be or become liable for, or guarantee, the obligations
of any Person, except (i) by the endorsement of negotiable instruments for
deposit or collection in the ordinary course of business, (ii) guarantees in
support of Facilities if, after giving effect to the proposed guarantee, the
aggregate amount of all such obligations guaranteed by the Borrowers, or any of
them (exclusive of the guarantees referred to in subsection 7.3(iii) hereof),
would not exceed Fifty Million ($50,000,000) Dollars, and (iii) as set forth on
Schedule 7.1 hereof. For the purposes hereof, the term "guarantee" shall include
any agreement, whether such agreement is on a contingency or otherwise, to
purchase, repurchase or otherwise acquire Indebtedness of any other Person, or
to purchase, sell or lease, as lessee or lessor, property or services, in any
such case primarily for the purpose of enabling another person to make payment
of Indebtedness, or to make any payment (whether as an advance, capital
contribution, purchase of an equity interest or otherwise) to assure a minimum
equity, asset base, working capital or other balance sheet or financial
condition, in connection with the Indebtedness of another Person, or to supply
funds to or in any manner invest in another Person in connection with such
Person's Indebtedness.
SECTION 7 .4 MERGERS, ACQUISITIONS.
Merge or consolidate with any Person, or, acquire all or substantially
all of the assets or any of the capital stock or other equity interests of any
Person unless (a) a Borrower is the surviving entity, (b) no Default or Event of
Default exists or will occur after giving effect thereto, and (c) the
consideration paid in connection with any such merger or acquisition does not
exceed an amount equal to fifteen (15%) percent of Consolidated Total Assets as
at the date of the consummation of such transaction, prior to giving effect to
such transaction.
SECTION 7 .5 DISTRIBUTIONS.
Declare or pay any dividends or make any distribution of any kind on
HCRI's outstanding stock, or set aside any sum for any such purpose, except
that:
(a) HCRI may declare and make dividend payments or other
distributions payable solely in its common stock;
(b) HCRI may declare and pay cash dividends if, and only if:
(x) at the time of such payment and after giving effect thereto, no Event of
Default shall exist hereunder, and (y) after giving effect to such dividend
payment, the aggregate amount of all dividends declared and paid during the
fiscal year of HCRI in which such payment is proposed to be made
- 39 -
would not exceed an amount equal to ninety-five (95%) percent of EBITDA (as
shown on the audited consolidated income statement of HCRI for such fiscal year
furnished to the Agent in accordance with Section 5.1 hereof); and
(c) if a Default or an Event of Default exists or will occur
as a result of the dividend payment, HCRI may declare and pay dividends to the
minimum extent necessary (taking into account any dividends or distributions
otherwise made) to generate the minimum deduction for dividends paid during each
year that would be required to satisfy Code Section 857(a)(1).
SECTION 7.6 CHANGES IN STRUCTURE.
Amend, supplement or modify the certificate of incorporation or by-laws
(or other applicable organizational documents) of any Borrower in a manner which
would be reasonably likely to cause a Material Adverse Effect.
SECTION 7.7 DISPOSITION OF ASSETS.
Make any Disposition of Property, or enter into any agreement to do so,
unless (a) the Disposition is at fair market value, (b) at the time of the
Disposition no Event of Default exists, and (c) any mandatory prepayment
required in connection therewith under subsection 2.5(e) is made as provided
therein.
SECTION 7.8 INVESTMENTS.
Make, or suffer to exist, any Investment in any Person, including,
without limitation, any shareholder, director, officer or employee of HCRI or
any of its Subsidiaries, except:
(a) Investments in:
(i) obligations issued or guaranteed by the United States
of America;
(ii) certificates of deposit, bankers acceptances and
other "money market instruments" issued by any bank or trust company
organized under the laws of the United States of America or any State
thereof and having capital and surplus in an aggregate amount of not
less than $100,000,000;
(iii) open market commercial paper bearing the highest
credit rating issued by S&P or by another nationally recognized credit
rating agency;
(iv) repurchase agreements entered into with any bank or
trust company organized under the laws of the United States of America
or any State thereof and having capital and surplus in an aggregate
amount of not less than $100,000,000 relating to United States of
America government obligations; and
- 40 -
(v) shares of "money market funds", each having net assets of
not less than $100,000,000;
in each case maturing or being due or payable in full not more than 180 days
after the Borrowers' acquisition thereof. Notwithstanding anything to the
contrary in this subsection 7.8(a), in the event any Loans are outstanding
hereunder, the Borrowers may not have Investments outstanding for more than five
(5) consecutive Business Days of the nature described in this subsection 7.8(a)
in excess of $20,000,000.
(b) Investments by HCRI in any Subsidiary, and by any
Subsidiary in HCRI or another Subsidiary, provided, HCRI shall cause
each newly-created Subsidiary, if any, within thirty (30) days after
its organization thereof, to become a party to this Agreement and a
signatory to the Notes, with the effect that each such new Subsidiary
shall be deemed to become a "Borrower" for the purposes of this
Agreement and in connection therewith, there shall be delivered to the
Agent with respect to such Subsidiary those certificates and documents
described in subsection 4.1(e) hereof and all legal matters incident to
the addition of such Subsidiary as a "Borrower" hereunder shall be
satisfactory to counsel to the Agent.
(c) The acquisition by HCRI and its Subsidiaries, on a
consolidated basis, of healthcare assets consisting of Facilities and
Mortgages and, subject to subsection 7.8(d) below, Investments in
Operators in the ordinary course of business.
(d) Investments in any Person provided that the aggregate Cash
portion of all such Investments does not exceed an amount equal to ten
(10%) percent of Consolidated Total Assets as at any date of
determination thereof, prior to giving effect to any such Investment.
For purposes of subsection 7.8(a)-(d) and Section 7.14 hereof, "Investments"
shall mean, by any Person:
(i) the amount paid or committed to be paid, or the value
of property or services contributed or committed to be contributed, by
such Person for or in connection with the acquisition by such Person of
any stock, bonds, notes, debentures, partnership or other ownership
interests or other securities of any other Person; and
(ii) the amount of any advance, loan or extension of
credit by such Person, to any other Person, or guaranty or other
similar obligation of such Person with respect to any Indebtedness of
such other Person, and (without duplication) any amount committed to be
advanced, loaned, or extended by such Person to any other Person, or
any amount the payment of which is committed to be assured by a
guaranty or similar obligation by such Person for the benefit of, such
other Person.
SECTION 7.9 FISCAL YEAR.
Change its fiscal year.
- 41 -
SECTION 7.10 ERISA OBLIGATIONS.
Permit the establishment of any Employee Benefit Plan or amend any
Employee Benefit Plan which establishment or amendment could result in liability
to any Loan Party or increase the obligation for post-retirement welfare
benefits of any Loan Party which liability or increase, individually or together
with all similar liabilities and increases, has a Material Adverse Effect on any
Loan Party.
SECTION 7.11 CAPITAL EXPENDITURES.
Except as set forth on Schedule 7.11 hereof, make or be or become
obligated to make Capital Expenditures in the aggregate for HCRI and its
Subsidiaries on a consolidated basis, during each fiscal year of HCRI and its
Subsidiaries, in excess of Five Million ($5,000,000.00) Dollars (exclusive of
Investments permitted under Section 7.8 hereof).
SECTION 7.12 INTENTIONALLY OMITTED.
SECTION 7.13 USE OF CASH.
Use, or permit to be used, in any manner or to any extent, each
Borrower's Cash from operations for the benefit of any Person, except: (a) in
connection with the payment or prepayment of expenses (other than Capital
Expenditures) directly incurred for the benefit of each Borrower in the
maintenance and operation of its business, in each case only in the ordinary
course of its business, (b) for the payment of required payments of principal
and interest on Indebtedness of each Borrower permitted to exist hereunder, and
(c) for uses that are otherwise specifically permitted by this Agreement.
SECTION 7.14 TRANSACTIONS WITH AFFILIATES.
Except as expressly permitted by this Agreement, directly or
indirectly: (a) make any Investment in an Affiliate; (b) transfer, sell, lease,
assign or otherwise dispose of any assets to an Affiliate; (c) merge into or
consolidate with or purchase or acquire assets from an Affiliate; or (d) enter
into any other transaction directly or indirectly with or for the benefit of any
Affiliate (including, without limitation, guarantees and assumptions of
obligations of an Affiliate); PROVIDED, HOWEVER, that: (i) payments on
Investments expressly permitted by Section 7.8 hereof may be made, (ii) any
Affiliate who is a natural person may serve as an employee or director of HCRI
or any Subsidiary and receive reasonable compensation for his services in such
capacity, and (iii) HCRI or any Subsidiary may enter into any transaction with
an Affiliate providing for the leasing of property, the rendering or receipt of
services or the purchase or sale of product, inventory and other assets in the
ordinary course of business if the monetary or business consideration arising
therefrom would be substantially as advantageous to HCRI or a Subsidiary as the
monetary or business consideration that would obtain in a comparable arm's
length transaction with a Person not an Affiliate.
SECTION 7.15 HAZARDOUS MATERIAL.
Cause or permit: (i) any Hazardous Material to be placed, held, located
or disposed of, on, under or at any Facility or any part thereof, except for
such Hazardous Materials
- 42 -
that are necessary for HCRI's or any Subsidiary's or any Operator's operation of
its business thereon and which shall be used, stored, treated and disposed of in
compliance with all applicable Environmental Laws and Regulations or (ii) such
Facility or any part thereof to be used as a collection, storage, treatment or
disposal site for any Hazardous Material. HCRI and each Subsidiary acknowledges
and agrees that the Agent and the Banks shall have no liability or
responsibility for either:
(i) damage, loss or injury to human health, the environment or
natural resources caused by the presence, disposal, release or
threatened release of Hazardous Materials on any part of such Facility;
or
(ii) abatement and/or clean-up required under any applicable
Environmental Laws and Regulations for a release, threatened release or
disposal of any Hazardous Materials located at any Facility or used by
or in connection with the HCRI's or any Subsidiary's or any Operator's
business.
SECTION 7.16 CONSTRUCTION INVESTMENTS.
Permit the outstanding principal amount, accrued interest on and
related fees in connection with its Construction Investments to exceed an amount
equal to ten (10%) percent of Consolidated Total Assets; provided, the Borrowers
shall not make a Construction Investment for a Facility unless (i) there is
included in the terms thereof an agreement for the conversion of the Borrower(s)
interests in the Facility upon the completion thereof into full ownership or a
mortgage interest, and (ii) if a mortgage interest, the Borrower(s) shall retain
a first Lien on such Facility.
ARTICLE 8. EVENTS OF DEFAULT.
If any one or more of the following events ("EVENTS OF DEFAULT") shall
occur and be continuing, the Revolving Credit Commitments shall terminate and
the entire unpaid balance of the principal of and interest on the Notes
outstanding and all other obligations and Indebtedness of each of the Borrowers
to the Banks and the Agent arising hereunder and under the other Loan Documents
shall immediately become due and payable upon written notice to that effect
given to the Borrowers by the Agent (except that in the case of the occurrence
of any Event of Default described in Section 8.6 no such notice shall be
required), without presentment or demand for payment, notice of non-payment,
protest or further notice or demand of any kind, all of which are expressly
waived by each Borrower:
SECTION 8.1 PAYMENTS.
Failure by any Borrower to make any payment or mandatory repayment of
principal or interest upon any Note or to make any payment of any Fee when due;
or
SECTION 8.2 CERTAIN COVENANTS.
Failure by any Borrower to perform or observe any of the agreements of
a Borrower contained in Section 6.9 or Article 7 hereof; or
- 43 -
SECTION 8.3 OTHER COVENANTS.
Failure by any Borrower to perform or observe any other term, condition
or covenant of this Agreement or of any of the other Loan Documents to which it
is a party, which shall remain unremedied for a period of thirty (30) days after
notice thereof shall have been given to such Borrower by the Agent; or
SECTION 8.4 OTHER DEFAULTS.
(a) Failure by any Borrower to perform or observe any term,
condition or covenant of any bond, note, debenture, loan agreement, indenture,
guaranty, trust agreement, mortgage or similar instrument to which it is a party
or by which it is bound, or by which any of its properties or assets may be
affected (a "DEBT INSTRUMENT"), so that, as a result of any such failure to
perform, the Indebtedness included therein or secured or covered thereby may be
declared due and payable prior to the date on which such Indebtedness would
otherwise become due and payable; or
(b) Any event or condition referred to in any Debt Instrument
shall occur or fail to occur, so that, as a result thereof, the Indebtedness
included therein or secured or covered thereby may be declared due and payable
prior to the date on which such Indebtedness would otherwise become due and
payable; or
(c) Failure to pay any Indebtedness for borrowed money due at
final maturity or pursuant to demand under any Debt Instrument;
PROVIDED, HOWEVER, that the provisions of this Section 8.4 shall not be
applicable to any Debt Instrument that on the date this Section 8.4 would
otherwise be applicable thereto, relates to or evidences Indebtedness in a
principal amount of less than $1,500,000; or
SECTION 8.5 REPRESENTATIONS AND WARRANTIES.
Any representation or warranty made in writing to the Banks or the
Agent in any of the Loan Documents or in connection with the making of the
Loans, or any certificate, statement or report made or delivered in compliance
with this Agreement, shall have been false or misleading in any material respect
when made or delivered; or
SECTION 8.6 BANKRUPTCY.
(a) Any Borrower shall make an assignment for the benefit of
creditors, file a petition in bankruptcy, be adjudicated insolvent, petition or
apply to any tribunal for the appointment of a receiver, custodian, or any
trustee for it or a substantial part of its assets, or shall commence any
proceeding under any bankruptcy, reorganization, arrangement, readjustment of
debt, dissolution or liquidation law or statute of any jurisdiction, whether now
or hereafter in effect, or any Borrower shall take any corporate action to
authorize any of the foregoing actions; or there shall have been filed any such
petition or application, or any such proceeding shall have been commenced
against it, that remains undismissed for a period of sixty (60) days or more; or
any order for relief shall be entered in any such proceeding; or any Borrower by
any act or omission shall indicate its consent to, approval of or acquiescence
in any
- 44 -
such petition, application or proceeding or the appointment of a custodian,
receiver or any trustee for it or any substantial part of its properties, or
shall suffer any custodianship, receivership or trusteeship to continue
undischarged for a period of thirty (30) days or more; or
(b) Any Borrower shall generally not pay its debts as such
debts become due; or
(c) Any Borrower shall have concealed, removed, or permitted
to be concealed or removed, any part of its property, with intent to hinder,
delay or defraud its creditors or any of them or made or suffered a transfer of
any of its property that may be fraudulent under any bankruptcy, fraudulent
conveyance or similar law; or shall have made any transfer of its property to or
for the benefit of a creditor at a time when other creditors similarly situated
have not been paid; or shall have suffered or permitted, while insolvent, any
creditor to obtain a Lien upon any of its property through legal proceedings or
distraint that is not vacated within thirty (30) days from the date thereof; or
SECTION 8.7 JUDGMENTS.
Any judgment against any Borrower or any attachment, levy or execution
against any of its properties for any amount in excess of One Million Five
Hundred Thousand ($1,500,000) Dollars shall remain unpaid, unstayed on appeal,
undischarged, unbonded or undismissed for a period of thirty (30) days or more;
or
SECTION 8.8 ERISA.
(a) The termination of any Plan or the institution by the PBGC
of proceedings for the involuntary termination of any Plan, in either case, by
reason of, or that results or could result in, a "material accumulated funding
deficiency" under Section 412 of the Code; or
(b) Failure by any Borrower to make required contributions, in
accordance with the applicable provisions of ERISA, to each of the Plans
hereafter established or assumed by it; or
SECTION 8.9 MATERIAL ADVERSE EFFECT.
There shall occur a Material Adverse Effect; or
SECTION 8.10 OWNERSHIP.
(i) Any Person, or a group of related Persons, shall acquire
(a) beneficial ownership in excess of 25% of the outstanding stock of HCRI or
other voting interest having ordinary voting powers to elect a majority of the
directors, managers or trustees of HCRI (irrespective of whether at such time
stock of any other class or classes shall have or might have voting power by
reason of the happening of any contingency), or (b) all or substantially all of
the Investments of HCRI, or (ii) a majority of the Board of Directors of HCRI,
at any time, shall be composed of Persons other than (a) Persons who were
members of the Board of Directors on the date of this Agreement, or (b) Persons
who subsequently become members of the Board of
- 45 -
Directors and who either (x) are appointed or recommended for election with the
affirmative vote of a majority of the directors in office as of the date of this
Agreement, or (y) are appointed or recommended for election with the affirmative
vote of a majority of the Board of Directors of HCRI then in office; or
SECTION 8.11 REIT STATUS, ETC.
HCRI shall at any time fail to maintain its REIT Status, or HCRI or any
Subsidiary shall lose, through suspension, termination, impoundment, revocation,
failure to renew or otherwise, any material license or permit; or
SECTION 8.12 MANAGEMENT.
George L. Chapman shall cease for any reason whatsoever, including,
without limitation, death or disability (as such disability shall be determined
in the reasonable judgment of the Agent) to be and continuously perform the
duties of an executive officer of HCRI and to be a member of its Board of
Directors or, if such cessation shall occur as a result of the death or such
disability, no successor satisfactory to the Agent, in its sole discretion,
shall have become and shall have commenced to perform the duties of such
executive officer of HCRI and serve as a member of HCRI's Board of Directors
within thirty (30) days after such cessation; PROVIDED, HOWEVER, that if any
satisfactory successor shall have been so elected and shall have commenced
performance of such duties within such period, the name of such successor or
successors shall be deemed to have been inserted in place of George L. Chapman
in this Section 8.12; or
SECTION 8.13 ENVIRONMENTAL.
Any of the Borrowers or any of their respective Facilities shall become
subject to one or more Liens for costs or damages in excess of One Million
($1,000,000) Dollars individually or in the aggregate under any Environmental
Laws and Regulations, such Liens shall remain in place for thirty (30) days
after the creation thereof and such Liens are reasonably likely to cause a
Material Adverse Effect; or
SECTION 8.14 DEFAULT BY OPERATOR.
Thirty (30) days after the acceleration by any Borrower of the
obligations of an Operator as a result of any default in the payment of amounts
which are due and owing under any lease, note, mortgage or related security
documents in connection with any Facility of such Operator (such Facility,
herein referred to as the "DEFAULTED FACILITY"), in the event the Lease Rental
Expense and/or Mortgage Expense arising from the Defaulted Facility accounts for
12.5% or more of the aggregate amount of all Lease Rental Expense and/or
Mortgage Expense owing to the Borrowers from all Operators during the
immediately preceding four (4) calendar quarters.
ARTICLE 9. THE AGENT.
SECTION 9.1 APPOINTMENT, POWERS AND IMMUNITIES.
Each Bank hereby irrevocably appoints and authorizes the Agent to act
as its agent hereunder and the other Loan Documents with such powers as are
specifically delegated to
- 46 -
the Agent by the terms of this Agreement and the other Loan Documents together
with such other powers as are reasonably incidental thereto. The Agent shall
have no duties or responsibilities except those expressly set forth in this
Agreement and the other Loan Documents and shall not be a trustee for any Bank.
The Agent shall not be responsible to the Banks for any recitals, statements,
representations or warranties contained in this Agreement or the other Loan
Documents in any certificate or other document referred to or provided for in,
or received by any of them under, this Agreement or the other Loan Documents, or
for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or the other Loan Documents or any other document
referred to or provided for herein or therein or for the collectibility of the
Loans or for any failure by any Borrower to perform any of its obligations
hereunder or under the other Loan Documents. The Agent may employ agents and
attorneys-in- fact and shall not be answerable, except as to money or securities
received by it or its authorized agents, for the negligence or misconduct of any
such agents or attorneys-in-fact selected by it with reasonable care. Neither
the Agent nor any of its directors, officers, employees or agents shall be
liable or responsible for any action taken or omitted to be taken by it or them
hereunder or the other Loan Documents or in connection herewith or therewith,
except for its or their own gross negligence or willful misconduct.
SECTION 9.2 RELIANCE BY AGENT.
The Agent shall be entitled to rely upon any certification, notice or
other communication (including any thereof by telephone, telex, telegram or
cable) believed by it to be genuine and correct and to have been signed or sent
by or on behalf of the proper person or persons, and upon advice and statements
of legal counsel, independent accountants and other experts selected by the
Agent. As to any matters not expressly provided for by this Agreement or the
other Loan Documents, the Agent shall in all cases be fully protected in acting,
or in refraining from acting, hereunder or the other Loan Documents in
accordance with instructions signed by the Required Banks, and such instructions
of the Required Banks and any action taken or failure to act pursuant thereto
shall be binding on all of the Banks.
SECTION 9.3 EVENTS OF DEFAULT.
The Agent shall not be deemed to have knowledge of the occurrence of a
Default (other than the non-payment of principal of or interest on Loans) unless
the Agent has received notice from a Bank or the Borrower specifying such
Default and stating that such notice is a "Notice of Default". In the event that
the Agent receives such a notice of the occurrence of a Default, the Agent shall
give notice thereof to the Banks (and shall give each Bank notice of each such
non-payment). The Agent shall (subject to Section 9.7 hereof) take such action
with respect to such Default as shall be directed by the Required Banks.
SECTION 9.4 RIGHTS AS A BANK.
With respect to its Revolving Credit Commitment and the Loans made by
it, the Agent in its capacity as a Bank hereunder shall have the same rights and
powers hereunder as any other Bank and may exercise the same as though it were
not acting as the Agent, and the term "Bank" or "Banks" shall, unless the
context otherwise indicates, include the Agent in its individual capacity. The
Agent and its Affiliates may (without having to account therefor to any
- 47 -
Bank) accept deposits from, lend money to and generally engage in any kind of
banking, trust or other business with each Borrower or its Affiliates, as if it
were not acting as the Agent, and the Agent may accept fees and other
consideration from each Borrower or its Affiliates, for services in connection
with this Agreement or any of the other Loan Documents or otherwise without
having to account for the same to the Banks.
SECTION 9.5 INDEMNIFICATION.
The Banks shall indemnify the Agent (to the extent not reimbursed by
each Borrower under Sections 10.1 and 10.2 hereof), ratably in accordance with
the aggregate principal amount of the Loans made by the Banks (or, if no Loans
are at the time outstanding, ratably in accordance with their respective
Revolving Credit Commitments), for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever that may be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of this
Agreement or any of the other Loan Documents or any other documents contemplated
by or referred to herein or therein or the transactions contemplated by or
referred to herein or therein or the transactions contemplated hereby and
thereby (including, without limitation, the costs and expenses that each
Borrower is obligated to pay under Sections 10.1 and 10.2 hereof, but excluding
normal administrative costs and expenses incident to the performance of its
agency duties hereunder) or the enforcement of any of the terms hereof or of any
such other documents, PROVIDED THAT no Bank shall be liable for any of the
foregoing to the extent they arise from the gross negligence or willful
misconduct of the party to be indemnified.
SECTION 9.6 NON-RELIANCE ON AGENT AND OTHER BANKS.
Each Bank agrees that it has, independently and without reliance on the
Agent or any other Bank, and based on such documents and information as it has
deemed appropriate, made its own credit analysis of each Borrower and decision
to enter into this Agreement and that it will, independently and without
reliance upon the Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
analysis and decisions in taking or not taking action under this Agreement or
the other Loan Documents. The Agent shall not be required to keep itself
informed as to the performance or observance by each Borrower of this Agreement
or the other Loan Documents or any other document referred to or provided for
herein or therein or to inspect the properties or books of each Borrower. Except
for notices, reports and other documents and information expressly required to
be furnished to the Banks by the Agent hereunder or the other Loan Documents,
the Agent shall not have any duty or responsibility to provide any Bank with any
credit or other information concerning the affairs, financial condition or
business of each Borrower, that may come into the possession of the Agent or any
of its Affiliates.
SECTION 9.7 FAILURE TO ACT.
Except for action expressly required of the Agent hereunder, the Agent
shall in all cases be fully justified in failing or refusing to act hereunder or
thereunder unless it shall be indemnified to its satisfaction by the Banks
against any and all liability and expense that may be incurred by it by reason
of taking or continuing to take any such action.
- 48 -
SECTION 9.8 RESIGNATION OR REMOVAL OF AGENT.
Subject to the appointment and acceptance of a successor Agent as
provided below, the Agent may resign at any time by giving not less than 10
days' prior written notice thereof to the Banks and each Borrower and the Agent
may be removed at any time with or without cause by the Required Banks. Upon any
such resignation or removal, 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
retiring Agent's giving of notice of resignation or the Required Banks' removal
of the retiring Agent, then the retiring Agent may, on behalf of the Banks,
after consultation with the Borrowers, appoint a successor Agent which shall be
a bank with a combined capital and surplus of at least $100,000,000. 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 retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Article 9 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the Agent.
SECTION 9.9 SHARING OF PAYMENTS.
(a) Prior to any acceleration by the Agent and the Banks of
the Obligations:
(i) in the event that any Bank shall obtain payment in respect
of a Note, or interest thereon, whether voluntarily or involuntarily,
and whether through the exercise of a right of banker's lien, set-off
or counterclaim against each Borrower or otherwise, in a greater
proportion than any such payment obtained by any other Bank in respect
of the corresponding Note held by it, then the Bank so receiving such
greater proportionate payment shall purchase for cash from the other
Bank or Banks such portion of each such other Bank's or Banks' Loan as
shall be necessary to cause such Bank receiving the proportionate
overpayment to share the excess payment with each Bank; and
(ii) in the event that any Bank shall obtain payment in
respect of any Interest Rate Contract to which such Bank is a party,
whether voluntarily or involuntarily, and whether through the exercise
of a right of banker's lien, set-off or counterclaim against each
Borrower or otherwise, such Bank shall be permitted to retain the full
amount of such payment and shall not be required to share such payment
with any other Bank.
(b) Upon or following any acceleration by the Agent and the Banks of
the Obligations, in the event that any Bank shall obtain payment in respect of a
Note, or interest or Fees thereon, or in respect of an Interest Rate Contract to
which such Bank is a party, whether voluntarily or involuntarily, and whether
through the exercise of a right of banker's lien, set-off or counterclaim
against each Borrower or otherwise, in a greater proportion than any such
payment obtained by any other Bank in respect of the aggregate amount of the
corresponding
- 49 -
Note held by such Bank and any Interest Rate Contract to which such Bank is a
party, then the Bank so receiving such greater proportionate payment shall
purchase for cash from the other Bank or Banks such portion of each such other
Bank's or Banks' Loan as shall be necessary to cause such Bank receiving the
proportionate overpayment to share the excess payment with each Bank. For the
purposes of this subsection 9.9(b), payments on Notes received by each Bank
shall be in the same proportion as the proportion of: (A) the sum of: (x) the
Obligations owing to such Bank in respect of the Note held by such Bank, plus
(y) the Obligations owing to such Bank in respect of Interest Rate Contracts to
which such Bank is party, if any, to (B) the sum of: (x) the Obligations owing
to all of the Banks in respect of all of the Notes, plus (y) the Obligations
owing to all of the Banks in respect of all Interest Rate Contracts to which any
Bank is a party; PROVIDED, HOWEVER, that, with respect to subsections 9.9(a)(i)
and (b) above, if all or any portion of such excess payment or benefits is
thereafter recovered from the Bank that received the proportionate overpayment,
such purchase of Loans or payment of benefits, as the case may be, shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.
ARTICLE 10. MISCELLANEOUS PROVISIONS.
SECTION 10.1 FEES AND EXPENSES; INDEMNITY.
(a) The Borrowers will promptly pay all costs of the Agent in
preparing the Loan Documents and all costs and expenses of the issue of the
Notes and of each Borrower's performance of and compliance with all agreements
and conditions contained herein on its part to be performed or complied with and
the reasonable fees and expenses and disbursements of counsel to the Agent in
connection with the preparation, execution and delivery, administration,
interpretation and enforcement of this Agreement, the other Loan Documents and
all other agreements, instruments and documents relating to this transaction,
the consummation of the transactions contemplated by all such documents, the
preservation of all rights of the Banks and the Agent, the negotiation,
preparation, execution and delivery of any amendment, modification or supplement
of or to, or any consent or waiver under, any such document (or any such
instrument that is proposed but not executed and delivered) and with any claim
or action threatened, made or brought against any of the Banks or the Agent
arising out of or relating to any extent to this Agreement, the other Loan
Documents or the transactions contemplated hereby or thereby (other than a claim
or action resulting from the gross negligence, willful misconduct, or
intentional violation of law by the Agent and or the Banks).
(b) In addition, the Borrowers will promptly pay all costs and
expenses (including, without limitation, reasonable fees and disbursements of
counsel) suffered or incurred by each Bank in connection with its enforcement of
the payment of the Notes held by it or any other sum due to it under this
Agreement or any of the other Loan Documents or any of its other rights
hereunder or thereunder. In addition to the foregoing, the Borrowers shall
indemnify each Bank and the Agent and each of their respective directors,
officers, employees, attorneys, agents and Affiliates against, and hold each of
them harmless from, any loss, liabilities, damages, claims, costs and expenses
(including reasonable attorneys' fees and disbursements) suffered or incurred by
any of them arising out of, resulting from or in any manner connected with, the
execution, delivery and performance of each of the Loan Documents, the Loans and
any and all transactions related to or consummated in connection with
- 50 -
the Loans (other than as a result of the gross negligence, willful misconduct or
intentional violation of law by the party seeking indemnification), including,
without limitation, losses, liabilities, damages, claims, costs and expenses
suffered or incurred by any Bank or the Agent or any of their respective
directors, officers, employees, attorneys, agents or Affiliates arising out of
or related to any Environmental Liability or Environmental Proceeding, or in
investigating, preparing for, defending against, or providing evidence,
producing documents or taking any other action in respect of any commenced or
threatened litigation, administrative proceeding or investigation under any
federal securities law or any other statute of any jurisdiction, or any
regulation, or at common law or otherwise against the Agent, the Banks or any of
their officers, directors, affiliates, agents or Affiliates, that is alleged to
arise out of or is based upon: (i) any untrue statement or alleged untrue
statement of any material fact of any Borrower and its affiliates in any
document or schedule filed with the Securities and Exchange Commission or any
other governmental body; (ii) any omission or alleged omission to state any
material fact required to be stated in such document or schedule, or necessary
to make the statements made therein, in light of the circumstances under which
made, not misleading; (iii) any acts, practices or omission or alleged acts,
practices or omissions of any Borrower or its agents related to the making of
any acquisition, purchase of shares or assets pursuant thereto, financing of
such purchases or the consummation of any other transactions contemplated by any
such acquisitions that are alleged to be in violation of any federal securities
law or of any other statute, regulation or other law of any jurisdiction
applicable to the making of any such acquisition, the purchase of shares or
assets pursuant thereto, the financing of such purchases or the consummation of
the other transactions contemplated by any such acquisition; or (iv) any
withdrawals, termination or cancellation of any such proposed acquisition for
any reason whatsoever. The indemnity set forth herein shall be in addition to
any other obligations or liabilities of any Borrower to the Agent and the Banks
hereunder, at common law or otherwise. The provisions of this Section 10.1 shall
survive the payment of the Notes and the termination of this Agreement.
SECTION 10.2 TAXES.
If, under any law in effect on the date of the closing of any Loan
hereunder, or under any retroactive provision of any law subsequently enacted,
it shall be determined that any Federal, state or local tax is payable in
respect of the issuance of any Note, or in connection with the filing or
recording of any assignments, mortgages, financing statements, or other
documents (whether measured by the amount of Indebtedness secured or otherwise)
as contemplated by this Agreement, then each Borrower will pay any such tax and
all interest and penalties, if any, and will indemnify the Banks and the Agent
against and save each of them harmless from any loss or damage resulting from or
arising out of the nonpayment or delay in payment of any such tax. If any such
tax or taxes shall be assessed or levied against any Bank or any other holder of
a Note, such Bank, or such other holder, as the case may be, may notify each
Borrower and make immediate payment thereof, together with interest or penalties
in connection therewith, and shall thereupon be entitled to and shall receive
immediate reimbursement therefor from each Borrower. Notwithstanding any other
provision contained in this Agreement, the covenants and agreements of the
Borrowers in this Section 10.2 shall survive payment of the Notes and the
termination of this Agreement.
- 51 -
SECTION 10.3 PAYMENTS.
As set forth in Article 2 hereof, all payments by each Borrower on
account of principal, interest, fees and other charges (including any
indemnities) shall be made to the Agent at the Principal Office of the Agent, in
lawful money of the United States of America in immediately available funds, by
wire transfer or otherwise, not later than 11:00 A.M. Cleveland, Ohio time on
the date such payment is due. Any such payment made on such date but after such
time shall, if the amount paid bears interest, be deemed to have been made on,
and interest shall continue to accrue and be payable thereon until, the next
succeeding Business Day. If any payment of principal or interest becomes due on
a day other than a Business Day, such payment may be made on the next succeeding
Business Day and such extension shall be included in computing interest in
connection with such payment. All payments hereunder and under the Notes shall
be made without set-off or counterclaim and in such amounts as may be necessary
in order that all such payments shall not be less than the amounts otherwise
specified to be paid under this Agreement and the Notes (after withholding for
or on account of: (i) any present or future taxes, levies, imposts, duties or
other similar charges of whatever nature imposed by any government or any
political subdivision or taxing authority thereof, other than any tax (except
those referred to in clause (ii) below) on or measured by the net income of the
Bank to which any such payment is due pursuant to applicable federal, state and
local income tax laws, and (ii) deduction of amounts equal to the taxes on or
measured by the net income of such Bank payable by such Bank with respect to the
amount by which the payments required to be made under this sentence exceed the
amounts otherwise specified to be paid in this Agreement and the Notes). Upon
payment in full of any Note, the Bank holding such Note shall mark the Note
"Paid" and return it to the Borrowers.
SECTION 10.4 SURVIVAL OF AGREEMENTS AND REPRESENTATIONS; CONSTRUCTION.
All agreements, representations and warranties made herein shall
survive the delivery of this Agreement and the Notes. The headings used in this
Agreement and the table of contents are for convenience only and shall not be
deemed to constitute a part hereof. All uses herein of the masculine gender or
of singular or plural terms shall be deemed to include uses of the feminine or
neuter gender, or plural or singular terms, as the context may require.
SECTION 10.5 LIEN ON AND SET-OFF OF DEPOSITS.
As security for the due payment and performance of all the Obligations,
each Borrower hereby grants to Agent for the ratable benefit of the Banks a Lien
on any and all deposits or other sums at any time credited by or due from the
Agent or any Bank to the Borrower, whether in regular or special depository
accounts or otherwise, and any and all monies, securities and other property of
the Borrower, and the proceeds thereof, now or hereafter held or received by or
in transit to any Bank or the Agent from or for such Borrower, whether for
safekeeping, custody, pledge, transmission, collection or otherwise, and any
such deposits, sums, monies, securities and other property, may at any time
after the occurrence and during the continuance of any Event of Default be
set-off, appropriated and applied by any Bank or the Agent against any of the
Obligations, whether or not any of such Obligations is then due or is secured by
any collateral.
- 52 -
SECTION 10.6 MODIFICATIONS, CONSENTS AND WAIVERS; ENTIRE AGREEMENT.
No modification, amendment or waiver of or with respect to any
provision of this Agreement, any Notes, or any of the other Loan Documents and
all other agreements, instruments and documents delivered pursuant hereto or
thereto, nor consent to any departure by any Borrower from any of the terms or
conditions thereof, shall in any event be effective unless it shall be in
writing and signed by the Agent and each Bank except that: (i) any modification
or amendment of, or waiver or consent with respect to, Article 4 shall be
required to be signed only by the Agent and the Required Banks, and (ii) any
modification or amendment of, or waiver or consent with respect to, Articles 1
(other than the definition of "Required Banks" or any other defined term which
is used in the application of any of the provisions of Article 2), 5, 6, 7, 8
(other than Section 8.1 and Section 8.4 hereof) and 10 (other than this Section
10.6) may be signed only by the Agent and the Required Banks. Any such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. No consent to or demand on any Borrower in any case shall, of
itself, entitle it to any other or further notice or demand in similar or other
circumstances. This Agreement and the other Loan Documents embody the entire
agreement and understanding among the Banks, the Agent and the Borrowers and
supersede all prior agreements and understandings relating to the subject matter
hereof.
SECTION 10.7 REMEDIES CUMULATIVE; COUNTERCLAIMS.
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 it 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 or the holder of any
Note to exercise, and no delay in exercising, any right shall operate as a
waiver thereof, nor shall any single or partial exercise of any right preclude
any other or future exercise thereof or the exercise of any other right. The due
payment and performance of the Obligations shall be without regard to any
counterclaim, right of offset or any other claim whatsoever that any Borrower
may have against any Bank or the Agent and without regard to any other
obligation of any nature whatsoever that any Bank or the Agent may have to any
Borrower, and no such counterclaim or offset shall be asserted by any Borrower
(unless such counter-claim or offset would, under applicable law, be permanently
and irrevocably lost if not brought in such action) in any action, suit or
proceeding instituted by any Bank or the Agent for payment or performance of the
Obligations.
SECTION 10.8 FURTHER ASSURANCES.
At any time and from time to time, upon the request of the Agent, each
Borrower shall execute, deliver and acknowledge or cause to be executed,
delivered and acknowledged, such further documents and instruments and do such
other acts and things as the Agent may reasonably request in order to fully
effect the purposes of this Agreement, the other Loan Documents and any other
agreements, instruments and documents delivered pursuant hereto or in connection
with the Loans.
- 53 -
SECTION 10.9 NOTICES.
All notices, requests, reports and other communications pursuant to
this Agreement shall be in writing, either by letter (delivered by hand or
commercial messenger service or sent by certified mail, return receipt
requested, except for routine reports delivered in compliance with Article 5
hereof which may be sent by ordinary first-class mail) or telecopy, addressed as
follows:
(a) If to the Borrowers:
Health Care REIT, Inc.
One SeaGate/Suite 1500
Toledo, Ohio 43603-1475
Attention: Mr. George L. Chapman
Chairman of the Board and
Chief Executive Officer
Telecopier No: (419) 247-2826
with a copy to:
Shumaker, Loop & Kendrick, LLP
North Courthouse Square
1000 Jackson
Toledo, Ohio 43624-1573
Attention:Mary Ellen Pisanelli, Esq.
Telecopier No.: (419) 241-6894
(b) If to any Bank:
To its address set forth below its
name on the signature pages hereof,
with a copy to the Agent; and
(c) If to the Agent:
Key Corporate Capital Inc., as Administrative Agent
127 Public Square
Cleveland, Ohio 44114-1306
Attention: Angela G. Mago
Senior Vice President
Telecopier No.: (216) 689-5970
- 54 -
with a copy (other than in the case
of Borrowing Notices and reports
and other documents delivered in
compliance with Article 5 hereof) to:
Emmet, Marvin & Martin, LLP
120 Broadway
New York, New York 10271
Attention:Richard S. Talesnick, Esq.
Telecopier No.: (212) 238-3100
Any notice, request, demand or other communication hereunder shall be deemed to
have been given on: (x) the day on which it is telecopied to such party at its
telecopier number specified above (provided such notice shall be effective only
if followed by one of the other methods of delivery set forth herein) or
delivered by receipted hand or such commercial messenger service to such party
at its address specified above, or (y) on the third Business Day after the day
deposited in the mail, postage prepaid, if sent by mail. Any party hereto may
change the Person, address or telecopier number to whom or which notices are to
be given hereunder, by notice duly given hereunder; PROVIDED, HOWEVER, that any
such notice shall be deemed to have been given hereunder only when actually
received by the party to which it is addressed.
SECTION 10.10 COUNTERPARTS.
This Agreement may be signed in any number of counterparts with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
SECTION 10.11 SEVERABILITY.
The provisions of this Agreement are severable, and if any clause or
provision hereof shall be held invalid or unenforceable in whole or in part in
any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part thereof, in such jurisdiction and shall not in
any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision in this Agreement in any jurisdiction. Each of the
covenants, agreements and conditions contained in this Agreement is independent
and compliance by the Borrower with any of them shall not excuse non-compliance
by the Borrower with any other. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any of such covenants, the fact that it would be permitted by an exception
to, or be otherwise within the limitations of, another covenant shall not avoid
the occurrence of a Default or an Event of Default if such action is taken or
condition exists.
SECTION 10.12 BINDING EFFECT; NO ASSIGNMENT OR DELEGATION BY BORROWERS.
This Agreement shall be binding upon and inure to the benefit of each
of the Borrowers and their respective successors and to the benefit of the Banks
and the Agent and their respective successors and assigns. The rights and
obligations of each Borrower under this Agreement shall not be assigned or
delegated without the prior written consent of the Agent and the Required Banks,
and any purported assignment or delegation without such consent shall be void.
- 55 -
SECTION 10.13 ASSIGNMENTS AND PARTICIPATIONS BY BANKS.
(a) Each Bank may assign to one or more banks or other
entities all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Revolving Credit
Commitment, the Loans owing to it, and the Note held by it); provided, however,
that: (i) the Borrowers and the Agent must give prior written consent to such
assignment (unless such assignment is to an Affiliate of such Bank or to another
Bank), which consent shall not be unreasonably withheld, (ii) the parties to
each such assignment shall execute and deliver to the Agent an Assignment and
Acceptance, and a processing fee of $3,500.00, (iii) each such assignment shall
be of a constant, and not a varying, percentage of all of the assigning Bank's
rights and obligations under this Agreement, (iv) the amount of the Revolving
Credit Commitment of the assigning Bank being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5,000,000 and shall
be an integral multiple of $1,000,000, and (v) each such assignment shall be to
an Eligible Assignee. Upon such execution, delivery and acceptance, from and
after the effective date specified in each Assignment and Acceptance, which
effective date shall be at least five (5) Business Days after the execution
thereof: (x) the assignee thereunder shall be a party hereto and, to the extent
that rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Bank hereunder,
and (y) the Bank assignor thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Bank's rights and obligations under this
Agreement, such Bank shall cease to be a party hereto). Notwithstanding anything
to the contrary in clause (a)(i) above, no consent of the Borrowers shall be
required for an assignment if an Event of Default has occurred and is
continuing.
(b) By executing and delivering an Assignment and Acceptance,
the Bank assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Bank makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Bank makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of each Borrower or the performance or observance by each Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of such financial statements and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon the Agent, such assigning
Bank or any other Bank and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers
under this
- 56 -
Agreement as are delegated to the Agent by the terms hereof, together with such
powers as are reasonably incidental thereto; and (vii) such assignee agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of this Agreement are required to be performed by it as a Bank.
(c) Upon its receipt of an Assignment and Acceptance executed
by an assigning Bank and an assignee representing that it is an Eligible
Assignee, together with any Note subject to such assignment, the Agent shall:
(i) accept such Assignment and Acceptance, and (ii) give prompt notice thereof
to the Borrowers. Within five (5) Business Days after its receipt of such
notice, the Borrowers, at their own expense, shall execute and deliver to the
Agent in exchange for the surrendered Note a new Note to the order of such
Eligible Assignee in an amount equal to the Revolving Credit Commitment assumed
by it pursuant to such Assignment and Acceptance and, if the assigning Bank has
retained a Revolving Credit Commitment hereunder, a new Note to the order of the
assigning Bank in an amount equal to the Revolving Credit Commitment retained by
it hereunder. Such new Note shall be in an aggregate principal amount equal to
the aggregate principal amount of such surrendered Note, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A hereto.
(d) Each Bank may, without the prior consent of the Agent, the
other Banks or the Borrowers, sell participations to one or more banks or other
entities in all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Revolving Credit
Commitment, the Loans owing to it, and the Note held by it); PROVIDED, HOWEVER,
that: (i) such Bank's obligations under this Agreement (including, without
limitation, its Revolving Credit Commitment hereunder) shall remain unchanged,
(ii) such Bank shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Bank shall remain the holder of
any such Note for all purposes of this Agreement, and the Borrowers, the Agent
and the other Banks shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this Agreement.
(e) Any Bank may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
10.13, disclose to the assignee or participant or proposed assignee or
participant, any information relating to any Borrower furnished to such Bank by
or on behalf of such Borrower; provided that , prior to any such disclosure, the
assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any confidential information relating to such
Borrower received by it from such Bank.
(f) Anything in this Section 10.13 to the contrary
notwithstanding, any Bank may assign and pledge all or any portion of its Loans
and its Note to any Federal Reserve Bank (and its transferees) as collateral
security pursuant to Regulation A of the Board of Governors of the Federal
Reserve System and any Operating Circular issued by such Federal Reserve Bank.
No such assignment shall release the assigning Bank from its obligations
hereunder.
- 57 -
SECTION 10.14 DELIVERY OF TAX FORMS.
Each Bank that is not organized under the laws of the United States or
a state thereof shall:
(a) deliver to the Borrowers and the Agent, on or prior to the
date of the execution and delivery of this Agreement or the date on
which it becomes a Bank hereunder, two accurate and duly completed
executed copies of United States IRS Form W-8BEN or W-8ECI, as
appropriate, or successor applicable form, as the case may be;
(b) deliver to the Borrowers and the Agent two further
accurate and complete executed copies of any such form or certification
on or before the date that any such form or certification expires or
becomes obsolete and after the occurrence of any event requiring a
change in the most recent form previously delivered by it to the
Borrowers; and
(c) obtain such extensions of time for filing and completing
such forms or certifications as may reasonably be requested by the
Borrowers or the Agent; unless in any such case under clause (b) above
an event (including, without limitation, any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery
would otherwise be required which renders all such forms inapplicable
or which would prevent such Bank from duly completing and delivering
any such form with respect to it and such Bank so advises the Borrower
and the Agent. Such Bank shall certify with respect to Form W-8BEN or
W8ECI, as appropriate that (i) it is entitled to receive payments under
this Agreement without deduction or withholding of any United States
Federal income taxes; (ii) to the extent legally entitled to do so,
that it is entitled to receive payments under this Agreement without,
or at a reduced rate of, deduction or withholding of any United States
Federal income taxes; or (iii) that it is entitled to an exemption from
United States backup withholding tax. Each Person not organized under
the laws of the United States or a state thereof that is an assignee
hereunder shall, prior to the effectiveness of the related transfer, be
required to provide all of the forms and statements required pursuant
to this Section 10.14.
Section 10.15 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF TRIAL
BY JURY.
(a) THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND ALL OTHER
DOCUMENTS AND INSTRUMENTS EXECUTED AND DELIVERED IN CONNECTION HEREWITH AND
THEREWITH, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS RULES PERTAINING
TO CONFLICTS OF LAWS.
(b) EACH BORROWER IRREVOCABLY CONSENTS THAT ANY LEGAL ACTION
OR PROCEEDING AGAINST IT UNDER, ARISING OUT OF OR IN ANY MANNER RELATING TO THIS
AGREEMENT, AND EACH OTHER LOAN DOCUMENT MAY BE BROUGHT IN ANY COURT OF THE STATE
OF NEW
- 58 -
YORK, COUNTY OF NEW YORK, OR IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK. EACH BORROWER, BY THE EXECUTION AND DELIVERY OF
THIS AGREEMENT, EXPRESSLY AND IRREVOCABLY ASSENTS AND SUBMITS TO THE
NONEXCLUSIVE PERSONAL JURISDICTION OF ANY OF SUCH COURTS IN ANY SUCH ACTION OR
PROCEEDING. EACH BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF ANY
COMPLAINT, SUMMONS, NOTICE OR OTHER PROCESS RELATING TO ANY SUCH ACTION OR
PROCEEDING BY DELIVERY THEREOF TO IT BY HAND OR BY MAIL IN THE MANNER PROVIDED
FOR IN SECTION 10.9 HEREOF. EACH BORROWER HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES ANY CLAIM OR DEFENSE IN ANY SUCH ACTION OR PROCEEDING BASED ON ANY
ALLEGED LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS OR
ANY SIMILAR BASIS. EACH BORROWER SHALL NOT BE ENTITLED IN ANY SUCH ACTION OR
PROCEEDING TO ASSERT ANY DEFENSE GIVEN OR ALLOWED UNDER THE LAWS OF ANY STATE
OTHER THAN THE STATE OF NEW YORK UNLESS SUCH DEFENSE IS ALSO GIVEN OR ALLOWED BY
THE LAWS OF THE STATE OF NEW YORK. NOTHING IN THIS SECTION 10.15 SHALL AFFECT OR
IMPAIR IN ANY MANNER OR TO ANY EXTENT THE RIGHT OF THE AGENT OR ANY BANK TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY BORROWER IN THE
COURTS OF ANY OTHER JURISDICTION OR THE RIGHT, IN CONNECTION WITH ANY LEGAL
ACTION OR PROCEEDING WHATSOEVER, TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW.
(c) EACH BORROWER, THE BANKS AND THE AGENT WAIVE TRIAL BY JURY
IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING
OUT OF, THIS AGREEMENT, ANY OF THE OTHER LOAN DOCUMENTS, OR ANY INSTRUMENT OR
DOCUMENT DELIVERED PURSUANT TO THIS AGREEMENT, OR THE VALIDITY, INTERPRETATION,
COLLECTION OR ENFORCEMENT THEREOF.
SECTION 10.16 SYNDICATION AGENT AND DOCUMENTATION AGENT.
The parties hereto acknowledge that DBSI has acted as "syndication
agent" and UBS Warburg LLC has acted as "documentation agent" in connection with
the consummation of the transactions contemplated by this Amended and Restated
Loan Agreement. Neither DBSI nor UBS Warburg LLC has obligations or liabilities
hereunder in such capacity.
[SIGNATURES PAGES TO FOLLOW]
- 59 -
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the date first above written.
HEALTH CARE REIT, INC.
HCRI PENNSYLVANIA PROPERTIES, INC.
HCRI TEXAS PROPERTIES, INC.
HCRI TEXAS PROPERTIES, LTD.
BY HEALTH CARE REIT, INC.,
ITS GENERAL PARTNER
HCRI NEVADA PROPERTIES, INC.
HCRI LOUISIANA PROPERTIES, L.P.
BY HCRI SOUTHERN INVESTMENTS I, INC.,
ITS GENERAL PARTNER
HEALTH CARE REIT INTERNATIONAL, INC.
HCN ATLANTIC GP, INC.
HCN ATLANTIC LP, INC.
HCN BCC HOLDINGS, INC.
HCRI INDIANA PROPERTIES, INC.
HCRI INDIANA PROPERTIES, LLC
BY HEALTH CARE REIT, INC.,
ITS MEMBER
HCRI LIMITED HOLDINGS, INC.
HCRI MASSACHUSETTS PROPERTIES, INC.
HCRI MASSACHUSETTS PROPERTIES TRUST
BY HCRI MASSACHUSETTS PROPERTIES, INC.
ITS TRUSTEE
HCRI HOLDINGS TRUST
BY HCRI MASSACHUSETTS PROPERTIES, INC.
ITS TRUSTEE
HCRI NORTH CAROLINA PROPERTIES, LLC
BY NORTH CAROLINA PROPERTIES I, INC.
ITS MEMBER
HCRI SOUTHERN INVESTMENTS I, INC.
HCRI TENNESSEE PROPERTIES, INC.
PENNSYLVANIA BCC PROPERTIES, INC.
HCRI BROADVIEW, INC.
HCRI WESTLAKE, INC.
HCRI BEACHWOOD, INC.
HCRI KENTUCKY PROPERTIES. LLC
BY HEALTH CARE REIT, INC.
ITS MEMBER
HCRI MASSACHUSETTS PROPERTIES TRUST II
BY HCRI MASSACHUSETTS PROPERTIES, INC.
ITS TRUSTEE
Health Care REIT, Inc. Amended and Restated Loan Agreement Signature Page
HCRI SATYR HILL, LLC
BY HEALTH CARE REIT, INC., AS THE MEMBER OF HCRI
MARYLAND PROPERTIES, LLC
ITS MEMBER
HCRI FRIENDSHIP, LLC
BY HEALTH CARE REIT, INC., AS THE MEMBER OF HCRI
MARYLAND PROPERTIES, LLC
ITS MEMBER
HCRI ST. CHARLES, LLC
BY HEALTH CARE REIT, INC., AS THE MEMBER OF HCRI
MARYLAND PROPERTIES, LLC
ITS MEMBER
HCRI MARYLAND PROPERTIES, LLC
BY HEALTH CARE REIT, INC.
ITS MEMBER
HCRI LAUREL, LLC
BY HEALTH CARE REIT, INC., AS THE MEMBER OF HCRI
MARYLAND PROPERTIES, LLC
ITS MEMBER
HCRI NORTH CAROLINA PROPERTIES I, INC.
HCRI NORTH CAROLINA PROPERTIES III, LP
BY HCRI NORTH CAROLINA PROPERTIES II, INC.
ITS GENERAL PARTNER
HCRI NORTH CAROLINA PROPERTIES II, INC.
HCRI WISCONSIN PROPERTIES, LLC
BY HEALTH CARE REIT, INC.
ITS MEMBER
HCRI WESTMORELAND, INC.
HCRI MISSISSIPPI PROPERTIES, INC.
BY /S/ GEORGE L. CHAPMAN
---------------------
CHIEF EXECUTIVE OFFICER
GEORGE L. CHAPMAN, as Chief Executive Officer of all of the
aforementioned entities, has executed this Amended and Restated Loan Agreement
and intending that all entities above named are bound and are to be bound by the
one signature as if he had executed this Amended and Restated Loan Agreement
separately for each of the above named entities.
Health Care REIT, Inc. Amended and Restated Loan Agreement Signature Page
REVOLVING CREDIT COMMITMENT:
- ----------------------------
$35,000,000.00 KEY CORPORATE CAPITAL INC.,
AS A BANK
PRO RATA SHARE OF AGGREGATE By: /s/ F. Donald Kelly III
REVOLVING CREDIT COMMITMENTS: -----------------------
- ---------------------------- Name: F. Donald Kelly III
Title: Vice President
20.000000000%
KEYBANK NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT
By: /s/ F. Donald Kelly III
-----------------------
Name: F. Donald Kelly III
Title: Vice President
Lending Office for Base Rate Loans
and LIBOR Loans:
Key Corporate Capital Inc.
127 Public Square, MC:OH-01-27-0605
Cleveland, Ohio 44114
Attention: Healthcare Administrative
Assistant
Address for Notices:
Key Corporate Capital Inc.
127 Public Square, MC:OH-01-27-0605
Cleveland, Ohio 44114
Attention: Mr. F. Donald Kelly III
Telecopier: (216) 689-5970
Health Care REIT, Inc. Amended and Restated Loan Agreement Signature Page
REVOLVING CREDIT COMMITMENT:
- ----------------------------
$35,000,000.00 DEUTSCHE BANK TRUST COMPANY
AMERICAS
PRO RATA SHARE OF AGGREGATE By: /s/ Diane F. Rolfe
REVOLVING CREDIT COMMITMENTS: -------------------
- ---------------------------- Name: Diane F. Rolfe
Title: Vice President
20.000000000%
Lending Office for Base Rate Loans
and LIBOR Loans:
Deutsche Bank Trust Company Americas
31 West 52nd Street
New York, New York 10019
Attention: Diane F. Rolfe
Vice President
Address for Notices:
Deutsche Bank Trust Company Americas
90 Hudson Street
Jersey City, New Jersey 07302
Attention: Roy Castrmonte
Telecopier: (201) 593-2310
Health Care REIT, Inc. Amended and Restated Loan Agreement Signature Page
REVOLVING CREDIT COMMITMENT:
- ----------------------------
$25,000,000.00 BANK OF AMERICA, N.A.
PRO RATA SHARE OF AGGREGATE By: /s/ Kevin Wagley
REVOLVING CREDIT COMMITMENTS: ----------------
- ---------------------------- Name: Kevin Wagley
Title: Principal
14.285714286%
Lending Office for Base Rate Loans
and LIBOR Loans:
Bank of America, N.A.
1850 Gateway Boulevard
CA4-706-05-11
Concord, California 94520-32282
Ref: Credit Services, Health Care REIT
Attention: Lynne Famularcano
Address for Notices:
Bank of America, N.A.
1850 Gateway Boulevard
CA4-706-05-11
Concord, California 94520-32282
Ref: Credit Services, Health Care REIT
Attention: Lynne Famularcano
Telecopier: (888) 969-9230
Health Care REIT, Inc. Amended and Restated Loan Agreement Signature Page
REVOLVING CREDIT COMMITMENT:
- ---------------------------
$25,000,000.00 BANK ONE, N.A.
PRO RATA SHARE OF AGGREGATE By: /s/ Jan E. Petrik
REVOLVING CREDIT COMMITMENTS: -----------------
- ---------------------------- Name: Jan E. Petrik
Title: First Vice President
14.285714286%
Lending Office for Base Rate Loans
and LIBOR Loans:
Bank One, N.A.
600 Superior
Cleveland, Ohio 44114
Attention: Commercial Loan Operations
Address for Notices:
Bank One, N.A.
Commercial Banking
600 Superior
Cleveland, Ohio 44114
Attention: Ms. Jan Petrik
Telecopier: (216) 781-4567
Health Care REIT, Inc. Amended and Restated Loan Agreement Signature Page
REVOLVING CREDIT COMMITMENT:
- ---------------------------
$25,000,000.00 UBS AG, STAMFORD BRANCH
PRO RATA SHARE OF AGGREGATE By: /s/ Wilfred V. Saint
REVOLVING CREDIT COMMITMENTS: --------------------
- ---------------------------- Name: Wilfred V. Saint
Title: Associate Director
14.285714286% Banking Products Services, US
By: /s/ Luke Goldsworthy
--------------------
Name: Luke Goldsworthy
Title: Associate Director
Banking Products Services, US
Lending Office for Base Rate Loans
and LIBOR Loans:
UBS AG
677 Washington Boulevard
Stamford, Connecticut 06901
Attention: Sailoz Sikka
Address for Notices:
UBS Warburg
677 Washington Boulevard
Stamford, Connecticut 06901
Attention: Sailoz Sikka
Telecopier: (203) 719-3888
Health Care REIT, Inc. Amended and Restated Loan Agreement Signature Page
REVOLVING CREDIT COMMITMENT:
- ---------------------------
$15,000,000.00 COMERICA BANK
PRO RATA SHARE OF AGGREGATE By: /s/ Jeffrey R. Gardner
REVOLVING CREDIT COMMITMENTS: ----------------------
- ---------------------------- Name: Jeffrey R. Gardner
Title: Account Officer
8.571428571%
Lending Office for Base Rate Loans
and LIBOR Loans:
Comerica Bank
Comerica Tower at Detroit Center
500 Woodward Avenue
Detroit, Michigan 48226
Attention: Jeffrey Gardner
Address for Notices:
Comerica Bank
Comerica Tower at Detroit Center
500 Woodward Avenue
Detroit, Michigan 48226
Attention: Jeffrey Gardner
Telecopier: (313) 222-3420
Health Care REIT, Inc. Amended and Restated Loan Agreement Signature Page
REVOLVING CREDIT COMMITMENT:
- ----------------------------
$15,000,000.00 NATIONAL CITY BANK
PRO RATA SHARE OF AGGREGATE By: /s/ Douglas L. Box
REVOLVING CREDIT COMMITMENTS: ------------------
- ---------------------------- Name: Douglas L. Box
Title: Senior Vice President
8.571428571%
Lending Office for Base Rate Loans
and LIBOR Loans:
National City Bank
405 Madison Avenue
Toledo, Ohio 43604
Attention: Mr. Douglas Box
Address for Notices:
National City Bank
405 Madison Avenue
Toledo, Ohio 43604
Attention: Mr. Douglas Box
Telecopier: (419) 259-6666
Health Care REIT, Inc. Amended and Restated Loan Agreement Signature Page
EXHIBITS AND SCHEDULES
TO AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
-----------------------------------------------------
EXHIBITS
- --------
1 List of Borrowers
A Form of Note
B Form of Assignment and Acceptance
C Form of Compliance Certificate
SCHEDULES
- ---------
3.1 States of Incorporation and Qualification, and Capitalization of
Borrowers and Subsidiaries
3.2 Consents, Waivers, Approvals; Violation of Agreements
3.6 Judgments, Actions, Proceedings
3.7 Defaults; Compliance with Laws, Regulations, Agreements
3.8 Burdensome Documents
3.13 Name Changes, Mergers, Acquisitions
3.16 Employee Benefit Plans
5.8 Form of Quarterly Facility Report
7.1 Permitted Indebtedness and Guarantees
7.2 Permitted Security Interests, Liens and Encumbrances
7.11 Permitted Capital Expenditures
EXHIBIT 1
TO AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
-----------------------------------------------------
LIST OF BORROWERS
-----------------
NAME OF BORROWER STATE OF ORGANIZATION
- ---------------- ---------------------
Health Care REIT, Inc. Delaware
HCRI Pennsylvania Properties, Inc. Pennsylvania
HCRI Overlook Green, Inc. Pennsylvania
HCRI Texas Properties, Inc. Delaware
HCRI Texas Properties, Ltd. Texas
HCRI Louisiana Properties, L.P. Delaware
Health Care REIT International, Inc. Delaware
HCN Atlantic GP, Inc. Delaware
HCN Atlantic LP, Inc. Delaware
HCRI Nevada Properties, Inc. Nevada
HCN BCC Holdings, Inc. Delaware
HCRI Holdings Trust Massachusetts
HCRI Indiana Properties, Inc. Delaware
HCRI Indiana Properties, LLC Indiana
HCRI Limited Holdings, Inc. Delaware
HCRI Massachusetts Properties Trust Massachusetts
HCRI Massachusetts Properties, Inc. Delaware
HCRI North Carolina Properties, LLC Delaware
HCRI Southern Investments I, Inc. Delaware
HCRI Tennessee Properties, Inc. Delaware
Pennsylvania BCC Properties, Inc. Pennsylvania
EXHIBIT A
TO AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
-----------------------------------------------------
FORM OF NOTE
------------
$____________ DATED: AUGUST __, 2002
FOR VALUE RECEIVED, each of the undersigned (collectively, the
"Borrowers"), hereby jointly and severally promises to pay to the order of
___________________________ (the "BANK") on the Revolving Credit Commitment
Termination Date, the principal sum of _____________________ Dollars
($__________), or such lesser amount as shall be equal to the aggregate unpaid
principal amount of the Loans outstanding on the close of business on the
Revolving Credit Commitment Termination Date made by the Bank to the Borrowers;
and to pay interest on the unpaid principal amount of each Loan from the date
thereof at the rates per annum and for the periods set forth in or established
by the Agreement and calculated as provided therein.
All indebtedness outstanding under this Note shall bear interest
(computed in the same manner as interest on this Note prior to the relevant due
date) at the applicable Post-Default Rate for all periods when an Event of
Default has ioccurred and is continuing, commencing on the occurrence of such
Event of Default until such Event of Default has been cured or waived as
acknowledged in writing by the Agent, and all of such interest shall be payable
on demand.
Anything herein to the contrary notwithstanding, the obligation of the
Borrowers to make payments of interest shall be subject to the limitation that
payments of interest shall not be required to be made to the Bank to the extent
that the Bank's receipt thereof would not be permissible under the law or laws
applicable to the Bank limiting rates of interest which may be charged or
collected by the Bank. Any such payments of interest which are not made as a
result of the limitation referred to in the preceding sentence shall be made by
the Borrowers to the Bank on the earliest interest payment date or dates on
which the receipt thereof would be permissible under the laws applicable to the
Bank limiting rates of interest which may be charged or collected by the Bank.
Payments of both principal and interest on this Note are to be made to
the office of KeyBank National Association, as Agent, at 127 Public Square,
Cleveland, Ohio 44114-1306 or such other place as the holder hereof shall
designate to the Borrowers in writing, in lawful money of the United States of
America in immediately available funds.
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Amended and Restated Loan Agreement dated as of even date
herewith by and among the Borrowers, the Banks signatory thereto (including the
Bank) and the Agent (as amended, modified or supplemented from time to time, the
"AGREEMENT"). Capitalized terms used but not otherwise defined herein shall have
the respective meanings ascribed thereto in the Agreement.
The Bank is hereby authorized by the Borrowers to record on the
schedule to this Note (or on a supplemental schedule thereto) the amount of each
Loan made by the Bank to the Borrowers and the amount of each payment or
repayment of principal of such Loans received by the Bank, it being understood,
however, that failure to make any such notation shall not affect the rights of
the Bank or the obligations of the Borrowers hereunder in respect of this Note.
The Bank may, at its option, record such matters in its internal records rather
than on such schedule.
Upon the occurrence of any Event of Default, the principal amount and
accrued interest on this Note may be declared due and payable in the manner and
with the effect provided in the Agreement.
The Borrowers shall pay costs and expenses of collection, including,
without limitation, attorneys' fees and disbursements in the event that any
action, suit or proceeding is brought by the holder hereof to collect this Note.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS RULES
PERTAINING TO CONFLICTS OF LAWS.
[Signatures on Following Page]
2
HEALTH CARE REIT, INC.
HCRI PENNSYLVANIA PROPERTIES, INC.
HCRI OVERLOOK GREEN, INC.
HCRI TEXAS PROPERTIES, INC.
HCRI TEXAS PROPERTIES, LTD.
By Health Care REIT, Inc.,
Its General Partner
HCRI NEVADA PROPERTIES, INC.
HCRI LOUISIANA PROPERTIES, L.P.
By HCRI Southern Investments I, Inc.,
Its General Partner
HEALTH CARE REIT INTERNATIONAL, INC.
HCN ATLANTIC GP, INC.
HCN ATLANTIC LP, INC.
HCRI TENNESSEE PROPERTIES, INC.
HCRI TENNESSEE PROPERTIES, L.P.
By HCRI Tennessee Properties, Inc.
Its General Partner
PENNSYLVANIA BCC PROPERTIES, INC.
HCN BCC HOLDINGS, INC.
HCRI LIMITED HOLDINGS, INC.
By
----------------------------------------
GEORGE L. CHAPMAN, as Chief Executive Officer of all of the
aforementioned entities, has executed this Note intending that all entities
above named are bound and are to be bound by the one signature as if he had
executed this Note separately for each of the above named entities.
3
SCHEDULE A
----------
- --------------------------------------------------------------------------------
PRINCIPAL PAYMENTS
- --------------------------------------------------------------------------------
Note dated August __, 2002
payable to the order of
----------
================================================================================
Interest Period
(if other than a
Principal Base Rate Amount Unpaid
Amount of Loan) and of Principal Principal Notation
Date Loan Interest Rate Repaid Balance Made By
- ---- ---- ------------- ------ ------- -------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
================================================================================
EXHIBIT B
TO AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
-----------------------------------------------------
FORM OF ASSIGNMENT AND ACCEPTANCE
---------------------------------
Dated ___________
Reference is hereby made to the Amended and Restated Loan Agreement
dated August __, 2002 (the "LOAN AGREEMENT") by and among Health Care REIT, Inc.
and its Subsidiaries (collectively, the "BORROWERS"), the Banks signatory
thereto (collectively, the "BANKS") and KeyBank National Association in its
capacity as administrative agent for the Banks (in such capacity, the "AGENT").
Capitalized terms used herein that are defined in the Loan Agreement that are
not otherwise defined herein shall have the respective meanings ascribed thereto
in the Loan Agreement.
_______________________________, a __________________ (the "ASSIGNOR")
and _______________________________________, a ________________, (the
"ASSIGNEE") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee without
recourse, representation or warranty of any kind except as expressly stated
herein, and the Assignee hereby purchases and assumes from the Assignor, a __ %
interest in and to all of the Assignor's rights and obligations under the Loan
Agreement as of the Effective Date (as defined below) (including, without
limitation, such percentage interest in the Assignor's Revolving Credit
Commitment as in effect on the Effective Date, and the Loans owing to the
Assignor on the Effective Date, and the Note(s) held by the Assignor).
2. The Assignor: (i) represents and warrants that as of the date hereof
its Revolving Credit Commitment (without giving effect to assignments thereof
that have not yet become effective) is $__________ and the aggregate outstanding
principal amount of Loans owing to it (without giving effect to assignments
thereof that have not yet become effective) is $__________; (ii) represents and
warrants that it is the legal and beneficial owner of the interest being
assigned by it hereunder, and that such interest is free and clear of any
adverse claim; (iii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Loan Agreement or any other instrument or
document furnished pursuant thereto; and (iv) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the
Borrowers or any other Loan Party or the performance or observance by the
Borrowers or any other Loan Party of any of their respective obligations under
the Loan Agreement or any other instrument or document furnished pursuant
thereto; and (v) attaches the Note(s) referred to in paragraph 1 above and
requests that the Agent exchange such Note(s) for new Note(s) as follows: a Note
dated the Effective Date (as such term is defined below) in the principal amount
of $___________ payable to the order of the Assignee and a Note dated the
Effective Date in the principal amount of $___________ payable to the order of
the Assignor.
3. The Assignee: (i) confirms that it has received a copy of the Loan
Agreement, together with copies of such financial statements and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon the Agent, the Assignor or
any other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Agreement; (iii) confirms that it is an
Eligible Assignee; (iv) appoints and authorizes the Agent to take such action as
its agent on its behalf and to exercise such powers under the Loan Agreement as
are delegated to the Agent by the terms thereof, together with such powers as
are reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Loan Agreement
are required to be performed by it as a Bank; and (vi) specifies as its
addresses for Base Rate Loans and LIBOR Loans (and address for notices) the
offices set forth beneath its name on the signature pages hereof.
4. The effective date for this Assignment and Acceptance shall be
________________ (the "EFFECTIVE DATE"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Agent for acceptance by
the Agent, together with a processing fee of $3,500.
5. Upon such acceptance, as of the Effective Date: (i) the Assignee
shall be a party to the Loan Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Bank thereunder
and (ii) the Assignor shall, to the extent provided in this Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Loan Agreement.
6. Upon such acceptance, from and after the Effective Date, the Agent
shall make all payments under the Loan Agreement and the Note(s) in respect of
the interest assigned hereby (including, without limitation, all payments of
principal, interest and commitment fees with respect thereto) to the Assignee.
The Assignor and Assignee shall make all appropriate adjustments in payments
under the Loan Agreement and the Note(s) for periods prior to the Effective Date
directly between themselves.
2
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York.
[NAME OF ASSIGNOR]
BY
---------------------------------
TITLE:
[NAME OF ASSIGNEE]
BY
---------------------------------
TITLE:
LENDING OFFICE FOR BASE RATE LOANS:
LENDING OFFICE FOR LIBOR LOANS:
ATTENTION:
ADDRESS FOR NOTICES:
ATTENTION:
TELEPHONE NO.:
TELECOPIER NO.:
ACCEPTED THIS ___ DAY OF
___________, 2002
KEYBANK NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT
BY
-----------------------------------------
TITLE
3
EXHIBIT C
TO AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND ITS SUBSIDIARIES
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
-----------------------------------------------------
FORM OF COMPLIANCE CERTIFICATE
------------------------------
OFFICER'S CERTIFICATE
---------------------
I hereby certify that:
(A) Health Care REIT, Inc. and its subsidiaries are in compliance with
the financial covenants as set forth in the annexed Compliance Certificate
pursuant to Section 6.9 of the Amended and Restated Loan Agreement dated August
__, 2002 (the "LOAN AGREEMENT") among Health Care REIT, Inc. and its
subsidiaries, the banks party thereto (the "BANKS") and KeyBank National
Association, as Administrative Agent for itself and the Banks (in such capacity,
the "AGENT"), and that all the computations of the financial covenants are
correct and complete as of the close of business on [DATE] and are in conformity
with the terms and conditions of the Loan Agreement.
(B) The representations and warranties contained in Article 3 of the
Loan Agreement are true and correct and with the same effect as though such
representations and warranties were made on the date of the Compliance
Certificate (provided Section 3.6 of the Loan Agreement relates only to claims
in excess of $1,500,000 as of the date hereof), except for changes in the
ordinary course of business, none of which either singly or in the aggregate,
have a Material Adverse Effect (as defined in the Loan Agreement).
(C) No Event of Default and no Default (as defined in the Loan
Agreement) has occurred and is continuing.
HEALTH CARE REIT, INC.
DATE: BY:
--------------- ---------------------------
TITLE
Section 6.9 (Financial Covenants): Health Care REIT, Inc. Amended and Restated Loan Agreement
COMPLIANCE CERTIFICATE: QUARTER ENDED (DATE)
a) Maximum Funded Indebtedness to Tangible Net Worth of Not Greater Than 1.20: 1.00:
As of: (date) in thousands
Funded Indebtedness $
=========
Shareholders' Equity $___________
less: Goodwill and Noncompete Agreements ___________
Unamortized Deferred Costs ___________
Treasury Stock ___________
Tangible Net Worth $
=========
Ratio ________ (%) COMPLIANCE
-----------
****************************************************************************
b) Minimum Tangible Net Worth of Not Less Than $700,000,000 plus 100% of
Net Issuance Proceeds: As of: (date) in thousands
Tangible Net Worth $___________
plus:
Net Equity Proceeds (excluding DRIP) ___________
Total Tangible Net Worth $ COMPLIANCE
=========== ----------
****************************************************************************
c) Minimum EBITDA/Interest Expense of Not Less than 250% (rolling four
quarters basis):
HCRI:
Last Four Quarters EBITDA:
March 31, 200_ $___________
December 31, 200_ $___________
September 30, 200_ $___________
June 30, 200_ $___________
Rolling Four Quarter EBITDA $
=========
Last Four Quarters Interest Expense on All Indebtedness:
March 31, 200_ $___________
December 31, 200_ $___________
September 30, 200_ $___________
June 30, 200_ $___________
Rolling Four Quarter Interest $
=========
Ratio ________ (%) COMPLIANCE
----------
****************************************************************************
d) Unencumbered Assets/unsecured Indebtedness of Not Less Than 2.10:1.00
As of: (date) in thousands
Net real estate investments (valued at book) $____________
Loan loss reserves $____________
Depreciation $____________
Cash $____________
Less: encumbered assets ($___________)
Unencumbered Assets: $____________
Unsecured Indebtedness: $____________
Ratio ________ (%) COMPLIANCE
----------
****************************************************************************
SCHEDULE 3.1
TO AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
-----------------------------------------------------
STATES OF INCORPORATION AND QUALIFICATION,
------------------------------------------
AND CAPITALIZATION OF BORROWERS
-------------------------------
HEALTH CARE REIT, INC.
(i) State of Incorporation:
Delaware
(ii) Authorized common stock 75,000,000
Issued and outstanding common stock 38,989,230
Authorized preferred stock 10,000,000
Issued and outstanding preferred stock 5,100,000
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
Arizona, California, Colorado, Connecticut, Florida, Georgia, Idaho, Illinois,
Indiana, Kentucky, Maryland, Massachusetts, Minnesota, Missouri, Montana
New Jersey, New Mexico, New York, Ohio, Oklahoma, Oregon, Pennsylvania
South Carolina, Texas, Virginia, Washington
(v) Subsidiaries:
All entities set forth below (directly or indirectly)
HCRI MASSACHUSETTS PROPERTIES TRUST
(i) State of Organization:
Massachusetts
(ii) N/A
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
None
HCRI MASSACHUSETTS PROPERTIES, INC.
(i) State of Incorporation:
Delaware
(ii) Authorized common stock 1,000
Issued and outstanding common stock 1,000
(iii) Business: Investments in health care facilities
(iv) States of Qualification: None
(v) Subsidiaries:
None
HCRI BROADVIEW, INC.
(i) State of Incorporation: Ohio
(ii) Authorized common stock 850
Issued and outstanding common stock 100
(iii) Business: Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
None
HCRI WESTLAKE, INC.
(i) State of Incorporation: Ohio (ii) Authorized common
stock 850
Issued and outstanding common stock 100
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
None
HCRI BEACHWOOD, INC.
(i) State of Incorporation: Ohio
(ii) Authorized common stock 850
Issued and outstanding common stock 100
(iii) Business: Investments in health care facilities
(iv) States of Qualification: None
(v) Subsidiaries:
None
HCRI HOLDINGS TRUST
(i) State of Organization:
Massachusetts
(ii) N/A
(iii) Business: Investments in health care facilities
(iv) States of Qualification: None
(v) Subsidiaries:
None
HCRI NEVADA PROPERTIES, INC.
(i) State of Incorporation: Nevada
(ii) Authorized common stock 1,000
Issued and outstanding common stock 1,000
(iii) Business: Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
None
HCRI KENTUCKY PROPERTIES, LLC
(i) State of Organization: Kentucky
(ii) N/A
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
None
HCRI MASSACHUSETTS PROPERTIES TRUST II
(i) State of Organization: Massachusetts
(ii) N/A
(iii) Business:
Investments in health care facilities
(iv) States of Qualification: None
(v) Subsidiaries: None
HCRI TEXAS PROPERTIES, INC.
(i) State of Incorporation:
Delaware
(ii) Authorized common stock 1,000
Issued and outstanding common stock 100
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
HCRI Texas Properties, Ltd. (99% limited partner)
HCRI TEXAS PROPERTIES, LTD.
(i) State of Organization:
Texas limited partnership
(ii) N/A
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
HCRI Louisiana Properties. L.P. (99% limited partner)
HCRI LOUISIANA PROPERTIES, L.P.
(i) State of Organization:
Delaware limited partnership
(ii) N/A
(iii) Business:
Investments in health care facilities
(iv) States of Qualification: Louisiana
(v) Subsidiaries: None
HCRI SOUTHERN INVESTMENTS I, INC.
(i) State of Incorporation: Delaware
(ii) Authorized common stock 1,000
Issued and outstanding common stock 1,000
(iii) Business: Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries: HCRI Louisiana Properties, L.P. (1%
general partner)
HCRI SATYR HILL, LLC
(i) State of Organization:
Virginia
(ii) N/A
(iii) Business Investments in health care facilities:
(iv) States of Qualification:
None
(v) Subsidiaries:
None
HCRI FRIENDSHIP, LLC
(i) State of Organization: Virginia
(ii) N/A
(iii) Business: Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
None
HCRI ST. CHARLES, LLC
(i) State of Organization: Virginia
(ii) N/A
(iii) Business: Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
None
HCRI MARYLAND PROPERTIES, LLC
(i) State of Organization:
Maryland
(ii) N/A
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
HCRI Friendship,
LLC HCRI St. Charles,
LLC HCRI Laurel, LLC
HCRI Satyr Hill, LLC
HCRI LAUREL, LLC
(i) State of Organization:
Maryland
(ii) N/A
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
None
HCRI NORTH CAROLINA PROPERTIES I, INC.
(i) State of Incorporation:
North Carolina
(ii) Authorized common stock 1,000
Issued and outstanding common stock 100
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
North Carolina Properties III, LP (99% limited partner)
HCRI North Carolina Properties, LLC
HCRI NORTH CAROLINA PROPERTIES III, LP
(i) State of Organization:
North Carolina limited partnership
(ii) N/A
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
None
HCRI NORTH CAROLINA PROPERTIES, LLC
(i) State of Organization:
Delaware
(ii) N/A
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
North Carolina
(v) Subsidiaries:
None
HCRI NORTH CAROLINA PROPERTIES II, INC.
(i) State of Incorporation:
North Carolina
(ii) Authorized common stock 1,000
Issued and outstanding common stock 1,000
(iii) Business:
Investments in health care facilities
(iv) States of Qualification: None
(v) Subsidiaries:
HCRI North Carolina Properties III, LP (1% general
partner)
HCRI INDIANA PROPERTIES, LLC
(i) State of Organization:
Indiana
(ii) N/A
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
None
HCN BCC HOLDINGS, INC.
(i) State of Incorporation:
Delaware
(ii) Authorized common stock 1,000
Issued and outstanding common stock 1,000
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
Ohio, Tennessee
(v) Subsidiaries:
Pennsylvania BCC Properties, Inc.
PENNSYLVANIA BCC PROPERTIES, INC.
(i) State of Incorporation:
Pennsylvania
(ii) Authorized common stock 1,000
Issued and outstanding common stock 1,000
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
None
HCRI PENNSYLVANIA PROPERTIES, INC.
(i) State of Incorporation:
Pennsylvania
(ii) Authorized common stock 100
Issued and outstanding common stock 100
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
None
HCRI INDIANA PROPERTIES, INC.
(i) State of Incorporation:
Delaware
(ii) Authorized common stock 1,000
Issued and outstanding common stock 1,000
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
HCRI Indiana Properties, LLC (1% member)
HCRI TENNESSEE PROPERTIES, INC.
(i) State of Incorporation:
Delaware
(ii) Authorized common stock 1,000
Issued and outstanding common stock 1,000
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
Tennessee
(v) Subsidiaries:
None
HCRI LIMITED HOLDINGS, INC.
(i) State of Incorporation:
Delaware
(ii) Authorized common stock 1,000
Issued and outstanding common stock 1,000
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
None
HCRI WISCONSIN PROPERTIES, LLC
(i) State of Organization:
Wisconsin
(ii) N/A
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
None
HCRI WESTMORELAND, INC.
(i) State of Incorporation:
Delaware
(ii) Authorized common stock 1,000
Issued and outstanding common stock 100
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
Tennessee
(v) Subsidiaries:
None
HEALTH CARE REIT INTERNATIONAL, INC.
(i) State of Incorporation:
Delaware
(ii) Authorized common stock 1,000
Issued and outstanding common stock 1,000
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
HCN Atlantic LP, Inc.
HCN Atlantic GP. Inc.
HCN ATLANTIC LP, INC.
(i) State of Incorporation:
Delaware
(ii) Authorized common stock 1,000
Issued and outstanding common stock 1,000
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
None
HCN ATLANTIC GP, INC.
(i) State of Incorporation:
Delaware
(ii) Authorized common stock 1,000
Issued and outstanding common stock 1,000
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
None
HCRI MISSISSIPPI PROPERTIES, INC.
(i) State of Incorporation:
Mississippi
(ii) Authorized common stock 1,000
Issued and outstanding common stock 100
(iii) Business:
Investments in health care facilities
(iv) States of Qualification:
None
(v) Subsidiaries:
None
SCHEDULE 3.2
TO AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
-----------------------------------------------------
CONSENTS, WAIVERS, APPROVALS;
VIOLATION OF AGREEMENTS
-----------------------
None
SCHEDULE 3.6
TO AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION, AS ADMINISTATIVE AGENT
----------------------------------------------------
JUDGMENTS, ACTIONS, PROCEEDINGS
-------------------------------
On July 9, 2002, the Company received a letter from an attorney
asserting a claim on behalf of his client against the Company for medical
malpractice. On July 30, 2002, the Company responded to the letter. In its
letter, the Company explained that the Company could not be liable for medical
malpractice (or any other claim arising from treatment) because the Company is
the landlord and not a care-giver. In its letter, the Company also made clear
that, if the threatened claim is pursued against the Company, the Company will
pursue a claim against the plaintiff and her counsel for commencing a frivolous
suit and for abuse of process. The Company has not had any other contact with
the plaintiff or her counsel.
SCHEDULE 3.7
TO AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
-----------------------------------------------------
DEFAULTS; COMPLIANCE WITH LAWS,
REGULATIONS, AGREEMENTS
-----------------------
None
SCHEDULE 3.8
TO AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
-----------------------------------------------------
BURDENSOME DOCUMENTS
--------------------
None
SCHEDULE 3.13
TO AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
-----------------------------------------------------
NAME CHANGES, MERGERS, ACQUISITIONS
-----------------------------------
In 2001, HCRI Alabama Properties, Inc. changed its name to HCRI
Westmoreland, Inc.
In 2001, Morningside Holdings of St. Charles, L.L.C. changed its name
to HCRI St. Charles, LLC.
In 2001, Morningside Holdings of Friendship, L.L.C. changed its name to
HCRI Friendship, LLC.
In 2001, Morningside Holdings of Satyr Hill, L.L.C. changed its name to
HCRI Satyr Hill, LLC.
SCHEDULE 3.16
TO AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
-----------------------------------------------------
EMPLOYEE BENEFIT PLANS
----------------------
Health Care REIT, Inc. Retirement Plan and Trust (401-K)
SCHEDULE 5.8
TO AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
-----------------------------------------------------
FORM OF QUARTERLY FACILITY REPORT
---------------------------------
ON FILE WITH EACH OF THE BANKS AND THE BORROWERS
SCHEDULE 7.1
TO AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
-----------------------------------------------------
PERMITTED INDEBTEDNESS AND GUARANTEES
-------------------------------------
Total
I. LINE OF CREDIT Available
-------------- ----------
Key/Deutsche Bank Revolving Line of Credit $175,000,000
Fifth Third Bank 25,000,000
------------
$200,000,000
II. EXISTING SECURED DEBT
---------------------
OPERATOR FACILITY INVESTMENT AMOUNT OF
BALANCE LIENS/INDEBTEDNESS
Various
(Washington Mutual pool) Various $ 110,213,619 $60,000,000
Southern Assisted Living Bluffton, SC 6,033,777 4,000,000
Horizon Healthcare San Antonio, TX 747,445 747,445
Harborside Westlake, OH 24,292,293 15,895,764
Harborside Broadview Heights, OH 13,147,290 9,335,608
Harborside Beachwood, OH 19,002,275 19,806,627
HQM Westmoreland, TN 4,598,322 2,247,301
------------ ------------
$178,035,021 $112,032,745
============ ============
III. EXISTING OTHER UNSECURED DEBT
-----------------------------
1997 Series Senior Notes $ 40,000,000
1998 Series Senior Notes 100,000,000
1999 Series Senior Notes 50,000,000
2001 Series Senior Notes $175,000,000
------------
$365,000,000
IV. EXISTING CONTINGENT OBLIGATIONS
-------------------------------
OPERATOR FACILITY AMOUNT OF
GUARANTY
Kingston Health Care Naperville, IL $3,510,000
Village Management Rockford, IL 3,850,000
ASA Development Tucson, AZ 3,500,000
-----------
$10,860,000
===========
SCHEDULE 7.2
TO AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
-----------------------------------------------------
PERMITTED SECURITY INTERESTS,
LIENS AND ENCUMBRANCES
----------------------
OPERATOR FACILITY INVESTMENT AMOUNT OF
BALANCE LIENS/INDEBTEDNESS
EXISTING LIENS
Various
(Washington Mutual pool) Various $110,213,619 $60,000,000
Southern Assisted Living Bluffton, SC 6,033,777 4,000,000
Horizon Healthcare San Antonio, TX 747,445 747,445
Harborside Westlake, OH 24,292,293 15,895,764
Harborside Broadview Heights, OH 13,147,290 9,335,608
Harborside Beachwood, OH 19,002,275 19,806,627
HQM Westmoreland, TN 4,598,322 2,247,301
------------ ------------
$178,035,021 $112,032,745
SCHEDULE 7.11
TO AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
HEALTH CARE REIT, INC.
AND ITS SUBSIDIARIES,
THE BANKS SIGNATORY HERETO
AND
KEYBANK NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
-----------------------------------------------------
PERMITTED CAPITAL EXPENDITURES
------------------------------
None