EXHIBIT 10.1
CREDIT AGREEMENT
Among
HEALTH CARE REIT, INC., and certain of its Subsidiaries
FIRST FEDERAL BANK OF THE MIDWEST, as a Lender,
MERCANTILE-SAFE DEPOSIT AND TRUST COMPANY, as a Lender
and
FIFTH THIRD BANK, an Ohio banking corporation,
as a Lender and as Administrative Agent
DATED AS OF MAY 28, 2004
TABLE OF CONTENTS
SECTION HEADING PAGE
SECTION 1. DEFINITIONS; INTERPRETATION........................................................... 1
Section 1.1. Definitions........................................................................... 1
Section 1.2. Defined Terms in Incorporated Provisions.............................................. 7
Section 1.3. Interpretation........................................................................ 7
Section 1.4. Change in Accounting Principles....................................................... 8
SECTION 2. THE CREDIT FACILITY................................................................... 8
Section 2.1. Commitments........................................................................... 8
Section 2.2. Applicable Interest Rates............................................................. 8
Section 2.3. Manner of Borrowing Loans and Designating Applicable Interest Rates................... 9
Section 2.4. Minimum Borrowing Amounts; Maximum Eurodollar Loans................................... 11
Section 2.5. Maturity of Loans..................................................................... 11
Section 2.6. Prepayments........................................................................... 11
Section 2.7. Place and Application of Payments..................................................... 12
Section 2.8. The Notes............................................................................. 12
Section 2.9. Facility Fee.......................................................................... 13
Section 2.10. Joint and Several Obligations......................................................... 13
Section 2.11. Appointment of HCRI as Agent for the Other Borrowers.................................. 13
SECTION 3. CONDITIONS PRECEDENT.................................................................. 14
Section 3.1. All Credit Events..................................................................... 14
Section 3.2. Initial Credit Event.................................................................. 14
SECTION 4. REPRESENTATIONS AND WARRANTIES........................................................ 16
Section 4.1. Use of Proceeds....................................................................... 16
Section 4.2. Incorporation by Reference............................................................ 16
SECTION 5. COVENANTS............................................................................. 16
Section 5.1. Incorporation by Reference............................................................ 16
SECTION 6. EVENTS OF DEFAULT AND REMEDIES........................................................ 17
Section 6.1. Events of Default..................................................................... 17
Section 6.2. Non-Bankruptcy Defaults............................................................... 18
Section 6.3. Bankruptcy Defaults................................................................... 18
Section 6.4. Notice of Default..................................................................... 18
Section 6.5. Expenses.............................................................................. 18
SECTION 7. CHANGE IN CIRCUMSTANCES AND CONTINGENCIES............................................. 19
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Section 7.1. Funding Indemnity..................................................................... 19
Section 7.2. Illegality............................................................................ 19
Section 7.3. Unavailability of Deposits or Inability to Ascertain, or Inadequacy of, LIBOR......... 20
Section 7.4. Yield Protection...................................................................... 20
Section 7.5. Substitution of Lenders............................................................... 21
Section 7.6. Lending Offices....................................................................... 22
Section 7.7. Discretion of Lender as to Manner of Funding.......................................... 22
SECTION 8. THE ADMINISTRATIVE AGENT.............................................................. 22
Section 8.1. Appointment and Authorization of Administrative Agent................................. 22
Section 8.2. Administrative Agent and its Affiliates............................................... 22
Section 8.3. Action by Administrative Agent........................................................ 23
Section 8.4. Consultation with Experts............................................................. 23
Section 8.5. Liability of Administrative Agent; Credit Decision.................................... 23
Section 8.6. Indemnity............................................................................. 24
Section 8.7. Resignation of Administrative Agent and Successor Administrative Agent................ 24
Section 8.8. Designation of Additional Agents...................................................... 25
SECTION 9. MISCELLANEOUS......................................................................... 25
Section 9.1. Withholding Taxes..................................................................... 25
Section 9.2. No Waiver, Cumulative Remedies........................................................ 26
Section 9.3. Non-Business Days..................................................................... 26
Section 9.4. Documentary Taxes..................................................................... 26
Section 9.5. Survival of Representations........................................................... 27
Section 9.6. Survival of Indemnities............................................................... 27
Section 9.7. Sharing of Set-Off.................................................................... 27
Section 9.8. Notices............................................................................... 28
Section 9.9. Counterparts.......................................................................... 28
Section 9.10. Successors and Assigns................................................................ 28
Section 9.11. Participants.......................................................................... 29
Section 9.12. Assignments........................................................................... 29
Section 9.13. Amendments............................................................................ 30
Section 9.14. Headings.............................................................................. 30
Section 9.15. Costs and Expenses; Indemnification................................................... 30
Section 9.16. Set-off............................................................................... 31
Section 9.17. Entire Agreement...................................................................... 31
Section 9.18. Governing Law......................................................................... 31
Section 9.19. Severability of Provisions............................................................ 32
Section 9.20. Excess Interest....................................................................... 32
Section 9.21. Lender's Obligations Several.......................................................... 32
Section 9.22. Submission to Jurisdiction; Waiver of Jury Trial...................................... 32
Signature Page .................................................................................................. S-1
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EXHIBIT A -- Notice of Borrowing
EXHIBIT B -- Notice of Continuation/Conversion
EXHIBIT C -- Promissory Note
EXHIBIT D -- Assignment and Acceptance
SCHEDULE I -- List of Borrowers
SCHEDULE II -- Commitments
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CREDIT AGREEMENT
This Credit Agreement is entered into as of May 28, 2004, by and among
HEALTH CARE REIT, INC., a Delaware corporation ("HCRI") and each of the other
entities listed on Schedule I attached hereto (HCRI and such other entities
hereinafter referred to individually as a "Borrower" and collectively as the
"Borrowers"), FIRST FEDERAL BANK OF THE MIDWEST, a Federal Savings Bank, as a
Lender, MERCANTILE-SAFE DEPOSIT AND TRUST COMPANY, a Maryland banking
corporation, as a Lender, and FIFTH THIRD BANK, an Ohio banking corporation, as
a Lender and as Administrative Agent.
The Borrowers have requested, and the Lenders have agreed to extend,
certain credit facilities on the terms and conditions of this Agreement. In
consideration of the mutual agreements set forth in this Agreement, the parties
to this Agreement agree as follows:
SECTION 1. DEFINITIONS; INTERPRETATION.
Section 1.1. Definitions. The following terms when used herein shall
have the following meanings:
"Administrative Agent" means Fifth Third Bank, an Ohio banking
corporation, as contractual representative for itself and the other Lenders and
any successor pursuant to Section 8.7 hereof.
"Adjusted LIBOR" means, for any Borrowing of Eurodollar Loans, a rate
per annum equal to the quotient of (i) LIBOR, divided by (ii) one minus the
Reserve Percentage.
"Affiliate" means any Person directly or indirectly controlling or
controlled by, or under direct or indirect common control with, another Person.
A Person shall be deemed to control another Person for the purposes of this
definition if such Person possesses, directly or indirectly, the power to
direct, or cause the direction of, the management and policies of the other
Person, whether through the ownership of voting securities, common directors,
trustees or officers, by contract or otherwise; provided that, in any event for
purposes of this definition, any Person that owns, directly or indirectly, 10%
or more of the securities having the ordinary voting power for the election of
directors or governing body of a corporation or 10% or more of the partnership
or other ownership interest of any other Person (other than as a limited partner
of such other Person) will be deemed to control such corporation or other
Person.
"Agreement" means this Credit Agreement, as the same may be amended,
modified, restated or supplemented from time to time pursuant to the terms
hereof.
"Authorized Representative" means those persons shown on the list of
officers provided by HCRI pursuant to Section 3.2 hereof or on any update of any
such list provided by the Borrowers to the Administrative Agent, or any further
or different officers of HCRI so named by any Authorized Representative of HCRI
in a written notice to the Administrative Agent; provided that in all cases,
such officers shall be acceptable to the Administrative Agent.
"Base Rate" means for any day the greater of: (i) the rate of interest
announced by the Administrative Agent from time to time as its "prime rate" as
in effect on such day, with any change in the Base Rate resulting from a change
in said prime rate to be effective as of the date of the relevant change in said
prime rate (it being acknowledged that such rate may not be the Administrative
Agent's best or lowest rate) and (ii) the sum of (x) the Federal Funds Rate,
plus (y) 1/2 of 1%.
"Base Rate Loan" means a Loan bearing interest at a rate specified in
Section 2.2(a) hereof.
"Borrower" and "Borrowers" are defined in the introductory paragraph of
this Agreement.
"Borrowing" means the total of Loans of a single type advanced,
continued for an additional Interest Period, or converted from a different type
into such type by the Lenders on a single date and, in the case of Eurodollar
Loans, for a single Interest Period. Borrowings of Loans are made and maintained
ratably from each of the Lenders according to their Percentages. A Borrowing is
"advanced" on the day Lenders advance funds comprising such Borrowing to the
Borrowers, is "continued" on the date a new Interest Period for the same type of
Loans commences for such Borrowing, and is "converted" when such Borrowing is
changed from one type of Loans to the other, all as requested by the Borrowers
pursuant to Section 2.3(a) hereof.
"Business Day" means any day (other than a Saturday or Sunday) on which
banks are not authorized or required to close in Cincinnati, Ohio and, if the
applicable Business Day relates to the advance or continuation of, or conversion
into, or payment of a Eurodollar Loan, on which banks are dealing in Dollar
deposits in the interbank eurodollar market in London, England.
"Capitalized Lease Obligations" means 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" means as to any Person, such Person's cash and cash equivalents,
as defined in accordance with GAAP consistently applied.
"Closing Date" means the date of this Agreement or such later Business
Day upon which each condition described in Section 3.2 shall be satisfied or
waived in a manner acceptable to the Administrative Agent in its discretion.
"Code" means the Internal Revenue Code of 1986, as it may be amended
from time to time, and the regulations promulgated thereunder.
"Commitment" means, as to any Lender, the obligation of such Lender to
make Loans in an aggregate principal amount at any one time outstanding not to
exceed the amount set forth
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opposite such Lender's name on Schedule II attached hereto and made a part
hereof, as the same may be reduced or modified at any time or from time to time
pursuant to the terms hereof. The Borrowers and the Lenders acknowledge and
agree that the Commitments of the Lenders aggregate $30,000,000 on the date
hereof.
"Credit Event" means the advancing of any Loan, or the continuation of
or conversion into a Eurodollar Loan, or the conversion into Base Rate Loan.
"Damages" means all damages including, without limitation, punitive
damages, liabilities, costs, expenses, losses, judgments, diminutions in value,
fines, penalties, demands, claims, cost recovery actions, lawsuits,
administrative proceedings, orders, response action, removal and remedial costs,
compliance costs, investigation expenses, consultant fees, attorneys' and
paralegals' fees and litigation expenses.
"Default" means any event or condition the occurrence of which would,
with the passage of time or the giving of notice, or both, constitute an Event
of Default.
"Dollars" and "$" each means the lawful money of the United States of
America.
"Eurodollar Loan" means a Loan bearing interest at the rate specified
in Section 2.2(b) hereof.
"Event of Default" means any event or condition identified as such in
Section 6.1 hereof.
"Existing Agreement" means that certain Amended and Restated Loan
Agreement by and among HCRI, its Subsidiaries party thereto, the banks signatory
thereto, KeyBank National Association, as Administrative Agent, Deutsche Bank
Securities Inc., as Syndication Agent and UBS Warburg LLC, as Documentation
Agent dated April 23, 2002, as amended by that certain Amendment No. 1 to
Amended and Restated Loan Agreement dated May 15, 2003, as amended by that
certain Amendment No. 2 to Amended and Restated Loan Agreement dated August 26,
2003, as amended by that certain Amendment No. 3 to Amended and Restated Loan
Agreement dated December 19, 2003, as supplemented by that certain Supplement to
Amended and Restated Loan Agreement dated January 30, 2004, as such agreement,
as amended, is in effect on the date hereof and without giving effect to any
terminations, further amendments and/or waivers thereof after the date hereof or
the payment in full of the amounts subject thereto.
"Federal Funds Rate" means 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 Administrative Agent on such day on
such transactions as reasonably determined by the Administrative Agent).
"GAAP" means generally accepted accounting principles in the United
States in effect from time to time.
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"HCRI" is defined in the introductory paragraph hereof.
"Indebtedness" means 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).
"Interest Period" means the period commencing on the date a Borrowing
of Loans is advanced, continued or created by conversion and ending: (a) in the
case of Base Rate Loans, on the last day of the calendar month in which such
Borrowing is advanced, continued or created by conversion (or on the last day of
the following calendar month if such Loan is advanced, continued or created by
conversion on the last day of a calendar month), (b) in the case of a Eurodollar
Loan, 1, 2 or 3 months thereafter; provided, however, that:
(i) any Interest Period for a Borrowing of Loans
consisting of Base Rate Loans that otherwise would end after the
Termination Date shall end on the Termination Date;
(ii) no Interest Period with respect to any portion of the
Loans shall extend beyond the Termination Date;
(iii) whenever the last day of any Interest Period would
otherwise be a day that is not a Business Day, the last day of such
Interest Period shall be extended to the next succeeding Business Day,
provided that, if such extension would cause the last day of an
Interest Period for a Borrowing of Eurodollar Loans to occur in the
following calendar month, the last day of such Interest Period shall be
the immediately preceding Business Day; and
(iv) for purposes of determining an Interest Period for a
Borrowing of Eurodollar Loans, a month means a period starting on one
day in a calendar month and ending on the numerically corresponding day
in the next calendar month; provided, however, that if there is no
numerically corresponding day in the month in
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which such an Interest Period is to end or if such an Interest Period
begins on the last Business Day of a calendar month, then such Interest
Period shall end on the last Business Day of the calendar month in
which such Interest Period is to end.
"Lenders" means and includes Fifth Third Bank, an Ohio banking
corporation, First Federal Bank of the Midwest, a Federal Savings Bank,
Mercantile-Safe Deposit and Trust Company, a Maryland banking corporation and
the other financial institutions from time to time party to this Agreement,
including each assignee Lender pursuant to Section 9.12 hereof.
"Lending Office" is defined in Section 7.6 hereof.
"LIBOR" means, for an Interest Period for a Borrowing of Eurodollar
Loans, (a) the LIBOR Index Rate for such Interest Period, if such rate is
available, and (b) if the LIBOR Index Rate cannot be determined, the arithmetic
average of the rates of interest per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) at which deposits in Dollars in immediately available
funds are offered to the Administrative Agent at 11:00 a.m. (London, England
time) 2 Business Days before the beginning of such Interest Period by 3 or more
major banks in the interbank eurodollar market selected by the Administrative
Agent for delivery on the first day of and for a period equal to such Interest
Period and in an amount equal or comparable to the principal amount of the
Eurodollar Loan scheduled to be made by the Administrative Agent as part of such
Borrowing.
"LIBOR Index Rate" means, for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the next higher one hundred-thousandth of a
percentage point) for deposits in Dollars for a period equal to such Interest
Period, which appears on the Telerate Page 3750 as of 11:00 a.m. (London,
England time) on the day 2 Business Days before the commencement of such
Interest Period.
"Lien" means 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" is defined in Section 2.1 hereof and, as so defined, includes a
Base Rate Loan or a Eurodollar Loan, each of which is a "type" of Loan
hereunder.
"Loan Documents" means this Agreement, the Notes, and all other
documents executed and delivered in connection herewith or therewith, including
all amendments, modifications and supplements of or to all such documents.
"Material Adverse Effect" means 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.
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"Note" is defined in Section 2.8 hereof.
"Obligations" means all obligations of the Borrowers and of each
Borrower individually to pay principal and interest on the Loans, all fees and
charges payable hereunder, and all other payment obligations of the Borrowers
and of each Borrower individually arising under or in relation to any Loan
Document, in each case whether now existing or hereafter arising, due or to
become due, direct or indirect, absolute or contingent, and howsoever evidenced,
held or acquired.
"Percentage" means, for each Lender, the percentage of the Commitments
represented by such Lender's Commitment or, if the Commitments have been
terminated, the percentage held by such Lender of the aggregate principal amount
of all Loans then outstanding.
"Person" means 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.
"Property" means, as to any Person, all types of real, personal,
tangible, intangible or mixed property owned by such Person whether or not
included in the most recent balance sheet of such Person under GAAP.
"Required Lenders" means, as of the date of determination thereof,
Lenders whose aggregate Commitments constitute 83 1/3% of the sum of the total
Commitments, provided that if the Commitments are terminated pursuant to the
terms of this Agreement, "Required Lenders" means as of the date of
determination thereof, Lenders whose outstanding Loans constitute 83 1/3% of the
sum of the total outstanding Loans.
"Reserve Percentage" means, for any Borrowing of Eurodollar Loans, the
daily average for the applicable Interest Period of the maximum rate, expressed
as a decimal, at which reserves (including, without limitation, any
supplemental, marginal, and emergency reserves) are imposed during such Interest
Period by the Board of Governors of the Federal Reserve System (or any
successor) on "eurocurrency liabilities", as defined in such Board's Regulation
D (or in respect of any other category of liabilities that includes deposits by
reference to which the interest rate on Eurodollar Loans is determined or any
category of extensions of credit or other assets that include loans by
non-United States offices of any Lender to United States residents), subject to
any amendments of such reserve requirement by such Board or its successor,
taking into account any transitional adjustments thereto. For purposes of this
definition, the Eurodollar Loans shall be deemed to be "eurocurrency
liabilities" as defined in Regulation D without benefit or credit for any
prorations, exemptions or offsets under Regulation D.
"Subsidiary" means 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
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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 requires, references in this Agreement to "Subsidiary" or
"Subsidiaries" shall be deemed to be references to a Subsidiary or Subsidiaries
of HCRI.
"Telerate Page 3750" means the display designated as "Page 3750" on the
Telerate Service (or such other page as may replace Page 3750 on that service or
such other service as may be nominated by the British Bankers' Association as
the information vendor for the purpose of displaying British Bankers'
Association Interest Settlement Rates for U.S. Dollar deposits).
"Termination Date" means May 31, 2005 or such earlier date on which the
Commitments are terminated in whole pursuant to Section 6.2 or 6.3 hereof.
Section 1.2. Defined Terms in Incorporated Provisions. All capitalized
terms incorporated by reference into this Agreement and defined in Section 1.1
shall be defined as set forth in such Section. All capitalized terms
incorporated by reference into this Agreement, but not otherwise defined in
Section 1.1, shall be defined as set forth in the Existing Agreement, without
giving effect to any terminations, amendments or waivers thereof, or payment in
full of the amounts subject thereto, but with the definitions in the Existing
Agreement being construed in accordance with the following sentence. All
references in the Existing Agreement (or in provisions incorporated herein by
reference to the Existing Agreement) to (i) the "Loan Documents" shall be deemed
to be references to the "Loan Documents" as defined in this Agreement; (ii) the
"Required Banks" shall be deemed to be references to the "Required Lenders" as
defined in this Agreement; (iii) the "Banks" shall be deemed to be references to
the "Lenders" as defined in this Agreement; (iv) the "Agent" shall be deemed to
be references to the "Administrative Agent" as defined in this Agreement; (v)
the "Financial Statements" shall be deemed to be references to the "Financial
Statements" as defined in the Existing Agreement, except the date "December 31,
2001" shall mean "December 31, 2003"; (vi) the "Projections" shall be deemed to
be references to the "Projections" as defined in the Existing Agreement, except
that the period "2002-2005" shall mean "2004-2006"; (vii) the "Loans" shall be
deemed to be references to the "Loans" as defined in this Agreement; (viii) the
term "Revolving Credit Commitments" shall be deemed to be references to the term
"Commitments" as defined in this Agreement; (ix) the "Notes" shall be deemed to
be references to "Notes" as defined in this Agreement; (x) the "Obligations"
shall be deemed to be references to the "Obligations" as defined in this
Agreement; (xi) the terms "Event of Default" and "Default" shall be deemed to be
references to the terms "Event of Default" and "Default", respectively, as such
terms are defined in this Agreement; (xii) "the date hereof" or "the date of the
Agreement" shall be deemed to be references to the date of this Agreement; and
(xiii) "this Agreement", "hereof", "herein", "hereunder" and similar words or
phrases shall be deemed to be references to this Agreement.
Section 1.3. Interpretation. The foregoing definitions are equally
applicable to both the singular and plural forms of the terms defined. The words
"hereof", "herein", and "hereunder" and words of like import when used in this
Agreement shall refer to this Agreement as a whole
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and not to any particular provision of this Agreement. All references to time of
day herein are references to Cincinnati, Ohio, time unless otherwise
specifically provided. Where the character or amount of any asset or liability
or item of income or expense is required to be determined or any consolidation
or other accounting computation is required to be made for the purposes of this
Agreement, it shall be done in accordance with GAAP except where such principles
are inconsistent with the specific provisions of this Agreement.
Section 1.4. Change in Accounting Principles. If, after the date of
this Agreement, there shall occur any change in GAAP from those used in the
preparation of the financial statements referred to in Section 3.9 of the
Existing Agreement as incorporated herein by reference and such change shall
result in a change in the method of calculation of any financial covenant,
standard or term found in this Agreement, either the Borrowers or the Required
Lenders may by notice to the Lenders and the Borrowers, respectively, require
that the Lenders and the Borrowers negotiate in good faith to amend such
covenants, standards, and term so as equitably to reflect such change in
accounting principles, with the desired result being that the criteria for
evaluating the financial condition of the Borrowers taken as a whole shall be
the same as if such change had not been made. No delay by the Borrowers or the
Required Lenders in requiring such negotiation shall limit their right to so
require such a negotiation at any time after such a change in accounting
principles. Until any such covenant, standard, or term is amended in accordance
with this Section 1.4, financial covenants shall be computed and determined in
accordance with GAAP in effect prior to such change in accounting principles.
Without limiting the generality of the foregoing, the Borrowers shall neither be
deemed to be in compliance with any financial covenant hereunder nor out of
compliance with any financial covenant hereunder if such state of compliance or
noncompliance, as the case may be, would not exist but for the occurrence of a
change in accounting principles after the date hereof.
SECTION 2. THE CREDIT FACILITY.
Section 2.1. Commitments. Prior to the Termination Date, each Lender
severally and not jointly agrees, subject to the terms and conditions hereof, to
make revolving loans (each individually a "Loan" and, collectively, the "Loans")
in Dollars to the Borrowers from time to time up to the amount of such Lender's
Commitment; provided, however, the sum of the aggregate principal amount of
Loans at any time outstanding shall not exceed the sum of all Commitments. Each
Borrowing of Loans shall be made ratably by the Lenders in proportion to their
respective Percentages. As provided in Section 2.3(a), and subject to the terms
hereof, the Borrowers may elect that each Borrowing of Loans be either Base Rate
Loans or Eurodollar Loans. Loans may be repaid and reborrowed before the
Termination Date, subject to the terms and conditions hereof.
Section 2.2. Applicable Interest Rates. (a) Base Rate Loans. Each Base
Rate Loan made or maintained by a Lender shall bear interest during each
Interest Period it is outstanding (computed on the basis of a year of 360 days
and the actual days elapsed) on the unpaid principal amount thereof from the
date such Loan is advanced, continued or created by conversion from a Eurodollar
Loan until maturity (whether by acceleration or otherwise) at a rate per annum
equal to the Base Rate from time to time in effect, payable on the last day of
its Interest Period and at maturity (whether by acceleration or otherwise).
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(b) Eurodollar Loans. Each Eurodollar Loan made or maintained by a
Lender shall bear interest during each Interest Period it is outstanding
(computed on the basis of a year of 360 days and actual days elapsed) on the
unpaid principal amount thereof from the date such Loan is advanced, continued
or created by conversion from a Base Rate Loan until maturity (whether by
acceleration or otherwise) at a rate per annum equal to the sum of 2.0% plus the
Adjusted LIBOR applicable for such Interest Period, payable on the last day of
the Interest Period and at maturity (whether by acceleration or otherwise).
(c) Default Rate. While any Event of Default exists or after
acceleration, the Borrowers shall pay interest (after as well as before entry of
judgment thereon to the extent permitted by law) on the principal amount of all
Loans owing by it at a rate per annum equal to:
(i) for any Base Rate Loan, the sum of 2.0% per annum
plus the Base Rate from time to time in effect; and
(ii) for any Eurodollar Loan, the sum of 4.0% per annum
plus the Adjusted LIBOR in effect thereon at the time of such default
until the end of the Interest Period applicable thereto and,
thereafter, at a rate per annum equal to the sum of 2.0% plus the Base
Rate from time to time in effect;
provided, however, that in the absence of acceleration, any adjustments pursuant
to this Section shall be made at the election of the Administrative Agent,
acting at the request or with the consent of the Required Lenders, with written
notice to the Borrowers. While any Event of Default exists or after
acceleration, interest shall be paid on demand of the Administrative Agent at
the request or with the consent of the Required Lenders.
(d) Rate Determinations. The Administrative Agent shall determine
each interest rate applicable to the Loans hereunder, and its determination
thereof shall be conclusive and binding except in the case of manifest error.
Section 2.3. Manner of Borrowing Loans and Designating Applicable
Interest Rates. (a) Notice to the Administrative Agent. The Borrowers shall give
notice to the Administrative Agent by: (i) no later than 2:00 p.m. (Cincinnati
time) at least 3 Business Days before the date on which the Borrowers request
the Lenders to advance a Borrowing of Eurodollar Loans and (ii) no later than
10:00 a.m. (Cincinnati time) on the date the Borrowers request the Lenders to
advance a Borrowing of Base Rate Loans. The Loans included in each Borrowing
shall bear interest initially at the type of rate specified in such notice.
Thereafter, the Borrowers may from time to time elect to change or continue the
type of interest rate borne by each Borrowing or, subject to Section 2.6 hereof,
a portion thereof, as follows: (i) if such Borrowing is of Eurodollar Loans, on
the last day of the Interest Period applicable thereto, the Borrowers may
continue part or all of such Borrowing as Eurodollar Loans or convert part or
all of such Borrowing into Base Rate Loans or (ii) if such Borrowing is of Base
Rate Loans, on any Business Day, the Borrowers may convert all or part of such
Borrowing into Eurodollar Loans for an Interest Period or Interest Periods
specified by the Borrowers. The Borrowers shall give all such notices requesting
the advance, continuation or conversion of a Borrowing to the Administrative
Agent by telephone or telecopy (which notice shall be irrevocable once given
and, if by telephone, shall be promptly
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confirmed in writing), substantially in the form attached hereto as Exhibit A
(Notice of Borrowing) or Exhibit B (Notice of Continuation/Conversion), as
applicable, or in such other form acceptable to the Administrative Agent. Notice
of the continuation of a Borrowing of Eurodollar Loans for an additional
Interest Period or of the conversion of part or all of a Borrowing of Base Rate
Loans into Eurodollar Loans must be given by no later than 2:00 p.m. (Cincinnati
time) at least 3 Business Days before the date of the requested continuation or
conversion. All notices concerning the advance, continuation or conversion of a
Borrowing shall specify the date of the requested advance, continuation or
conversion of a Borrowing (which shall be a Business Day), the amount of the
requested Borrowing to be advanced, continued or converted, the type of Loans to
comprise such new, continued or converted Borrowing and, if such Borrowing is to
be comprised of Eurodollar Loans, the Interest Period applicable thereto. The
Borrowers agree that the Administrative Agent may rely on any such telephonic or
telecopy notice given by any person the Administrative Agent in good faith
believes is an Authorized Representative without the necessity of independent
investigation and, in the event any such notice by telephone conflicts with any
written confirmation, such telephonic notice shall govern if the Administrative
Agent has acted in reliance thereon.
(b) Notice to the Lenders. The Administrative Agent shall give
prompt telephonic or telecopy notice to each Lender of any notice from the
Borrowers received pursuant to Section 2.3(a) above and, if such notice requests
the Lenders to make Eurodollar Loans, the Administrative Agent shall give notice
to the Borrowers and each Lender of the interest rate applicable thereto
promptly after the Administrative Agent has made such determination.
(c) Borrowers' Failure to Notify; Automatic Continuations and
Conversions. Any outstanding Borrowing of Base Rate Loans shall automatically be
continued for an additional Interest Period on the last day of its then current
Interest Period unless the Borrowers have properly notified the Administrative
Agent that the Borrowers intend to convert such Borrowing, subject to Section
3.1 hereof, into a Borrowing of Eurodollar Loans or such Borrowing is prepaid in
accordance with Section 2.6. If the Borrowers fail to give proper notice of the
continuation or conversion of any outstanding Borrowing of Eurodollar Loans
before the last day of its then current Interest Period within the period
required by Section 2.3(a) or, whether or not such notice has been given, one or
more of the conditions set forth in Section 3.1 for the continuation or
conversion of a Borrowing of Eurodollar Loans would not be satisfied, and such
Borrowing is not prepaid in accordance with Section 2.6, such Borrowing shall
automatically be converted into a Borrowing of Base Rate Loans.
(d) Disbursement of Loans. Not later than 1:00 p.m. (Cincinnati
time) on the date of any requested advance of a new Borrowing, subject to
Section 3 hereof, each Lender shall make available its Loan comprising part of
such Borrowing in funds immediately available at the principal office of the
Administrative Agent in Cincinnati, Ohio. The Administrative Agent shall make
the proceeds of each new Borrowing available to the Borrowers at the
Administrative Agent's principal office in Cincinnati, Ohio.
(e) Administrative Agent Reliance on Lender Funding. Unless the
Administrative Agent shall have been notified by a Lender prior to (or, in the
case of a Borrowing of Base Rate Loans, by 1:00 p.m. Cincinnati time) the date
on which such Lender is scheduled to make
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payment to the Administrative Agent of the proceeds of a Loan (which notice
shall be effective upon receipt) that such Lender does not intend to make such
payment, the Administrative Agent may assume that such Lender has made such
payment when due and the Administrative Agent, in reliance upon such assumption
may (but shall not be required to) make available to the Borrowers the proceeds
of the Loan to be made by such Lender and, if any Lender has not in fact made
such payment to the Administrative Agent, such Lender shall, on demand, pay to
the Administrative Agent the amount made available to the Borrowers attributable
to such Lender together with interest thereon in respect of each day during the
period commencing on the date such amount was made available to the Borrowers
and ending on (but excluding) the date such Lender pays such amount to the
Administrative Agent at a rate per annum equal to: (i) from the date the related
advance was made by the Administrative Agent to the date 2 Business Days after
payment by such Lender is due hereunder, the Federal Funds Rate for each such
day and (ii) from the date 2 Business Days after the date such payment is due
from such Lender to the date such payment is made by such Lender, the Base Rate
in effect for each such day. If such amount is not received from such Lender by
the Administrative Agent immediately upon demand, the Borrowers will, on demand,
repay to the Administrative Agent the proceeds of the Loan attributable to such
Lender with interest thereon at a rate per annum equal to the interest rate
applicable to the relevant Loan, but without such payment being considered a
payment or prepayment of a Loan under Section 7.1 hereof so that the Borrowers
will have no liability under such Section with respect to such payment.
Section 2.4. Minimum Borrowing Amounts; Maximum Eurodollar Loans. Each
Borrowing of Base Rate Loans shall be in an amount not less than $500,000. Each
Borrowing of Eurodollar Loans advanced, continued or converted shall be in an
amount equal to $500,000 or such greater amount which is an integral multiple of
$100,000. Without the Administrative Agent's consent, there shall not be more
than five Borrowings of Eurodollar Loans outstanding at any one time.
Section 2.5. Maturity of Loans. Each Loan, both for principal and
interest, shall mature and become due and payable by the Borrowers on the
Termination Date.
Section 2.6. Prepayments. The Borrowers may prepay without premium or
penalty (except as set forth in Section 7.1 below) and in whole or in part any
Borrowing of Eurodollar Loans at any time upon 3 Business Days prior notice by
the Borrowers to the Administrative Agent or, in the case of a Borrowing of Base
Rate Loans, notice delivered by the Borrowers to the Administrative Agent no
later than 2:00 p.m. (Cincinnati time) on the date of prepayment, such
prepayment to be made by the payment of the principal amount to be prepaid and,
in the case of any Eurodollar Loans, accrued interest thereon to the date fixed
for prepayment plus any amounts due the Lenders under Section 7.1; provided,
however, the Borrowers may not partially repay a Borrowing (i) if such Borrowing
is of Base Rate Loans, in a principal amount less than $500,000, (ii) if such
Borrowing is of Eurodollar Loans, in a principal amount not less than $500,000
or any amount in excess thereof that is not an integral multiple of $100,000,
and (iii) in each case, unless it is in an amount such that the minimum amount
required for a Borrowing pursuant to Section 2.4 remains outstanding. The
Administrative Agent will promptly advise each Lender of any notice of
prepayment it receives from the Borrowers. Any amount of Loans
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paid or prepaid before the Termination Date may, subject to the terms and
conditions of this Agreement, be borrowed, repaid and borrowed again.
Section 2.7. Place and Application of Payments. All payments of
principal of and interest on the Loans, and of all other Obligations payable by
the Borrowers under this Agreement and the other Loan Documents, shall be made
by the Borrowers to the Administrative Agent by no later than 2:00 p.m.
(Cincinnati time) on the due date thereof at the office of the Administrative
Agent in Cincinnati, Ohio (or such other location as the Administrative Agent
may designate to the Borrowers) for the benefit of the Lender or Lenders
entitled thereto. Any payments received after such time shall be deemed to have
been received by the Administrative Agent on the next Business Day. All such
payments shall be made in Dollars, in immediately available funds at the place
of payment, in each case without set-off or counterclaim. The Administrative
Agent will promptly thereafter cause to be distributed like funds relating to
the payment of principal or interest on Loans ratably to the Lenders and like
funds relating to the payment of any other amount payable to any Lender to such
Lender, in each case to be applied in accordance with the terms of this
Agreement.
Anything contained herein to the contrary notwithstanding, (x) pursuant
to the exercise of remedies under Sections 6.2 and 6.3 hereof or (y) after
written instruction by the Required Lenders after the occurrence and during the
continuation of an Event of Default, all payments and collections received in
respect of the Obligations by the Administrative Agent or any of the Lenders
shall be remitted to the Administrative Agent and distributed as follows:
(a) first, to the payment of any outstanding costs and
expenses incurred by the Administrative Agent in protecting, preserving
or enforcing rights under the Loan Documents, and in any event all
costs and expenses of a character which the Borrowers have agreed to
pay the Administrative Agent under Section 9.15 hereof (such funds to
be retained by the Administrative Agent for its own account unless it
has previously been reimbursed for such costs and expenses by the
Lenders, in which event such amounts shall be remitted to the Lenders
to reimburse them for payments theretofore made to the Administrative
Agent);
(b) second, to the payment of any outstanding interest
and fees due under the Loan Documents to be allocated pro rata in
accordance with the aggregate unpaid amounts owing to each holder
thereof;
(c) third, to the payment of principal on the Notes, to
be allocated pro rata in accordance with the aggregate unpaid amounts
owing to each holder thereof;
(d) fourth, to the payment of all other unpaid
Obligations to be allocated pro rata in accordance with the aggregate
unpaid amounts owing to each holder thereof; and
(e) fifth, to the Borrowers or whoever else may be
lawfully entitled thereto.
Section 2.8. The Notes. (a) The Loans made to the Borrowers by a
Lender shall be evidenced by a single promissory note of the Borrowers issued to
such Lender in the form of
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Exhibit C hereto. Each such promissory note is hereinafter referred to as a
"Note" and collectively such promissory notes are referred to as the "Notes."
(b) Each Lender shall record on its books and records or on a
schedule to its Note the amount and type of each Loan advanced, continued or
converted by it, all payments of principal and interest and the principal
balance from time to time outstanding thereon, and, for any Eurodollar Loan, the
Interest Period and the interest rate applicable thereto. The Lender's record
thereof, whether shown on its books and records or on a schedule to its Note,
shall be prima facie evidence as to all such matters; provided, however, that
the failure of any Lender to record any of the foregoing or any error in any
such record shall not limit or otherwise affect the obligation of the Borrowers
to repay all Loans made to it together with accrued interest thereon. At the
request of any Lender and upon such Lender tendering to the Borrowers the Note
to be replaced, the Borrowers shall furnish a new Note to such Lender to replace
any outstanding Note, and at such time the first notation appearing on a
schedule on the reverse side of, or attached to, such new Note shall set forth
the aggregate unpaid principal amount of all Loans, if any, then outstanding
thereon.
Section 2.9. Facility Fee. On or before the Closing Date, the
Borrowers shall pay to the Administrative Agent, for the ratable benefit of the
Lenders according to their Percentages, a facility fee equal to $60,000.
Section 2.10. Joint and Several Obligations. Each Borrower hereby
unconditionally and irrevocably agrees it is jointly and severally liable to the
Administrative Agent and the Lenders for the payment and performance of the
Obligations. Each Borrower acknowledges and agrees that its joint and several
liability on the Obligations owed by any Borrower or Borrowers under this
Agreement is absolute and unconditional and shall not in any manner be affected
or impaired by any of acts or omissions whatsoever by the Administrative Agent
or any Lender, and without limiting the generality of the foregoing, each
Borrower's joint and several liability on the Obligations shall not be impaired
by any failure, neglect or omission on the Administrative Agent's or any
Lender's part to resort to any one or all of the Borrowers for payment of the
Obligations. Each Borrower's joint and several liability on the Obligations
shall not in any manner be impaired or affected by who receives or uses the
proceeds of the Loans or for what purposes such proceeds are used, and each
Borrower waives notice of Borrowing requests issued by, and Loans made to, the
other Borrowers. Each Borrower hereby agrees not to exercise or enforce any
right of exoneration, contribution, reimbursement, recourse, or subrogation
available to such Borrower against any party liable for payment of any
Obligations, unless and until the Obligations have been paid and satisfied in
full and termination of the Commitments hereunder. By its acceptance below, each
Borrower hereby expressly waives and surrenders any defense to its joint and
several liability on the Obligations based upon any of the foregoing. In
furtherance thereof, each Borrower agrees that wherever in this Agreement it is
provided that a Borrower is liable for a payment or performance of an
obligation, such obligation is the joint and several obligation of each
Borrower.
Section 2.11. Appointment of HCRI as Agent for the Other Borrowers.
(a) Appointment. Each Borrower other than HCRI irrevocably appoints HCRI as its
agent hereunder to make requests for Loans, to make interest rate elections, and
to take any other action contemplated by
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the Loan Documents with respect to credit extended hereunder to each of the
Borrowers. The Administrative Agent and the Lenders shall be entitled to
conclusively presume that any action by HCRI under the Loan Documents is taken
on behalf of each of the Borrowers.
(b) Reliance. All requests for Loans may be written or oral,
including by telephone or telecopy. The Borrowers agree that the Administrative
Agent may rely on any such notice given by any person the Administrative Agent
in good faith believes is an Authorized Representative without the necessity of
independent investigation (the Borrowers hereby indemnifying the Administrative
Agent from any liability or loss ensuing from such reliance), and in the event
any such telephonic or other oral notice conflicts with any written
confirmation, such oral or telephonic notice shall govern if the Administrative
Agent has acted in reliance thereon.
SECTION 3. CONDITIONS PRECEDENT.
The obligation of each Lender to advance, continue or convert any Loan
(other than the continuation of a Base Rate Loan), shall be subject to the
following conditions precedent:
Section 3.1. All Credit Events. At the time of each Credit Event
hereunder:
(a) each of the representations and warranties set forth
herein and in the other Loan Documents shall be and remain true and
correct as of said time, except to the extent the same expressly relate
to an earlier date (provided Section 3.6 of the Existing Agreement
incorporated herein by reference shall relate only to claims in excess
of $1,500,000 as of the date of such requested Loan);
(b) the Borrowers shall be in compliance with all of the
terms and conditions hereof and of the other Loan Documents, and no
Default or Event of Default shall have occurred and be continuing or
would occur as a result of such Credit Event;
(c) in the case of a Borrowing the Administrative Agent
shall have received the notice required by Section 2.3 hereof; and
(d) such Credit Event shall not violate any order,
judgment or decree of any court or other authority or any provision of
law or regulation applicable to the Administrative Agent or any Lender
(including, without limitation, Regulation U of the Board of Governors
of the Federal Reserve System) as then in effect.
Each request for a Borrowing hereunder shall be deemed to be a
representation and warranty by the Borrowers on the date of such Credit Event as
to the facts specified in subsections (a) through (c), both inclusive, of this
Section.
Section 3.2. Initial Credit Event. Before or concurrently with the
initial Credit Event:
(a) the Administrative Agent shall have received for each
Lender such Lender's duly executed Note of the Borrowers dated the date
hereof and otherwise in compliance with the provisions of Section 2.8
hereof;
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(b) the Administrative Agent shall have received for each
Lender copies of each Borrower's articles of incorporation and bylaws
(or other similar organizational documents) and any amendments thereto,
certified in each instance by an officer of such Borrower acceptable to
the Administrative Agent;
(c) the Administrative Agent shall have received for each
Lender copies of resolutions of each Borrower's Board of Directors (or
other similar governing body) authorizing the execution, delivery and
performance of this Agreement and the other Loan Documents to which it
is a party and the consummation of the transactions contemplated hereby
and thereby, together with specimen signatures of the persons
authorized to execute such documents on such Borrower's behalf, all
certified in each instance by an officer of such Borrower acceptable to
the Administrative Agent;
(d) the Administrative Agent shall have received for each
Lender certificates of good standing for (i) HCRI (dated no earlier
than 30 days prior to the date hereof) from the office of the secretary
of state or other appropriate governmental department or agency of the
state of its incorporation or organization and (ii) each Borrower
(dated no earlier than September 1, 2003) from the office of the
secretary of state or other appropriate governmental department or
agency of the state of its incorporation or organization (except with
respect to HCRI) and of each state in which it is qualified to do
business as a foreign corporation or organization (the "Qualified
Jurisdictions") along with a certificate from an officer of each
Borrower certifying that such Borrowers are in good standing in each of
their respective Qualified Jurisdictions; provided, however, that the
Borrowers shall be deemed to be in compliance with this subsection (d)
if a Borrower's failure to qualify or remain in good standing in its
respective Qualified Jurisdictions does not have a Material Adverse
Effect;
(e) the Administrative Agent shall have received for each
Lender a list of the Borrowers' Authorized Representatives;
(f) the Administrative Agent shall have received (i) for
itself the administrative fee required by that certain fee letter
agreement between the Administrative Agent and HCRI dated May 11, 2004,
and (ii) for itself and for the other Lenders the facility fee called
for by Section 2.9 hereof;
(g) each Lender shall have received such evaluations and
certifications as it may reasonably require (including the Financial
Statements and Projections) in order to satisfy itself as to the
financial condition of the Borrowers, and the lack of material
contingent liabilities of the Borrowers;
(h) the Administrative Agent shall have received
financing statement lien search results against HCRI; and
(i) the Administrative Agent shall have received for the
account of the Lenders such other agreements, instruments, documents,
certificates, and opinions as the Administrative Agent may reasonably
request.
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SECTION 4. REPRESENTATIONS AND WARRANTIES.
Each Borrower represents and warrants to each Lender and the
Administrative Agent, and agrees, that:
Section 4.1. Use of Proceeds. All proceeds of Loans shall be used by
the Borrowers to refinance existing Indebtedness, to acquire Facilities, to
extend or acquire loans secured by Mortgages, for working capital purposes, for
general corporate purposes and/or for the interim funding of real estate
projects of the Borrowers.
Section 4.2. Incorporation by Reference. The provisions of the
following Sections (including the contents of the related schedules and
exhibits) of the Existing Agreement are incorporated herein by reference in
their entirety as in effect on the date hereof and without giving effect to any
terminations, amendments or waivers thereof after the date hereof, or the
payment in full of the amounts subject thereto, with (a) the defined terms used
therein and the definitions of such terms being construed in accordance with
Sections 1.1 and 1.2 hereof, and (b) Section references therein being deemed to
be references to Sections of the Existing Agreement as incorporated by reference
herein: Section 3.1 through and including Section 3.17. The Borrowers hereby
represent and warrant to each Lender and the Administrative Agent the Sections
of the Existing Agreement incorporated herein by this Section 4.2 for the
benefit of each Lender and the Administrative Agent as if such Sections were set
forth directly in this Agreement. With regard to Section 3.12 incorporated
herein, the reference to "Section 2.8 hereof" shall be deemed to be a reference
to Section 4.1 of this Agreement.
SECTION 5. COVENANTS.
Section 5.1. Incorporation by Reference. The provisions of the
following Articles and Sections (including the contents of the related schedules
and exhibits) of the Existing Agreement are incorporated herein by reference in
their entirety as in effect on the date hereof and without giving effect to any
terminations, amendments or waivers thereof after the date hereof, or the
payment in full of the amounts subject thereto, with (a) the defined terms used
therein and the definitions of such terms being construed in accordance with
Sections 1.1 and 1.2, and (b) Section references therein being deemed to be
references to Sections of the Existing Agreement as incorporated by reference
herein: Article 5 (including Section 5.1 through and including Section 5.13),
Article 6 (including Section 6.1 through and including Section 6.14) and Article
7 (including Section 7.1 through and including Section 7.16). The Borrowers
hereby covenant and agree to observe, perform and comply with the Articles and
Sections of the Existing Agreement incorporated herein by this Section 5.1 for
the benefit of each Lender and the Administrative Agent as if such Articles and
Sections were set forth directly in this Agreement; provided, however, with
regard to:
(a) Section 7.1 of the Existing Agreement incorporated
herein by reference, subsection (a) thereof shall be replaced with the
following subsection (a):
"(a) Indebtedness of the Borrowers (i) to the Lenders and
the Administrative Agent under this Agreement and the Notes
and (ii)
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owing pursuant to the Existing Agreement and the Notes, as
issued pursuant thereto and defined therein;"
(b) Section 7.8(b) of the Existing Agreement incorporated
herein by reference, the phrase "subsection 4.1(e) hereof" shall be
replaced and shall mean subsections (b), (c) and (d), of Section 3.2 of
this Agreement, in lieu thereof; and
(c) The reference to "Exhibit D" in Section 5.4 of the
Existing Agreement shall be replaced by a reference to "Exhibit C" in
lieu thereof.
SECTION 6. EVENTS OF DEFAULT AND REMEDIES.
Section 6.1. Events of Default. Any one or more of the following shall
constitute an "Event of Default" hereunder:
(a) default in the payment when due (whether at the
stated maturity thereof or at any other time provided for in this
Agreement) of all or any part of the principal of or interest on any
Note or any other Obligation payable hereunder or under any other Loan
Document;
(b) default in the observance or performance of any
covenant set forth in Sections 6.9, 7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7,
7.8, 7.9, 7.10, 7.11, 7.12, 7.13, 7.14, 7.15 or 7.16 of the Existing
Agreement;
(c) default in the observance or performance of any other
provision hereof or of any other Loan Document which is not remedied
within 30 days after written notice thereof is given to the Borrowers
by the Administrative Agent;
(d) any representation or warranty made herein or in any
other Loan Document or in any certificate delivered to the
Administrative Agent or the Lenders pursuant hereto or thereto or in
connection with any transaction contemplated hereby or thereby proves
untrue in any material respect as of the date of the issuance or making
or deemed making thereof;
(e) any event occurs or condition exists (other than
those described in subsections (a) through (d) above) which is
specified as an event of default under any of the other Loan Documents,
or any of the Loan Documents shall for any reason not be or shall cease
to be in full force and effect or is declared to be null and void;
(f) any Event of Default, as defined in the Existing
Agreement, shall occur under Section 8.4, 8.7, 8.8, 8.9, 8.10, 8.11,
8.12, 8.13 or 8.14 of the Existing Agreement;
(g) any Borrower shall (i) have entered involuntarily
against it an order for relief under the United States Bankruptcy Code,
as amended, (ii) not pay, or admit in writing its inability to pay, its
debts generally as they become due, (iii) make an assignment for the
benefit of creditors, (iv) apply for, seek, consent to or acquiesce in,
the
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appointment of a receiver, custodian, trustee, examiner, liquidator or
similar official for it or any substantial part of its Property, (v)
institute any proceeding seeking to have entered against it an order
for relief under the United States Bankruptcy Code, as amended, to
adjudicate it insolvent, or seeking dissolution, winding up,
liquidation, reorganization, arrangement, adjustment or composition of
it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed
against it, (vi) take any corporate action in furtherance of any matter
described in parts (i) through (v) above, or (vii) fail to contest in
good faith any appointment or proceeding described in Section 6.1(h)
hereof; or
(h) a custodian, receiver, trustee, examiner, liquidator
or similar official shall be appointed for any Borrower or any
substantial part of any of its Property, or a proceeding described in
Section 6.1(g)(v) shall be instituted against any Borrower, and such
appointment continues undischarged or such proceeding continues
undismissed or unstayed for a period of 60 days.
Section 6.2. Non-Bankruptcy Defaults. When any Event of Default other
than those described in subsection (g) or (h) of Section 6.1 hereof has occurred
and is continuing, the Administrative Agent shall, by written notice to the
Borrowers: (a) if so directed by any Lender, terminate the remaining Commitments
and all other obligations of the Lenders hereunder on the date stated in such
notice (which may be the date thereof); and (b) if so directed by any Lender,
declare the principal of and the accrued interest on all outstanding Notes to be
forthwith due and payable and thereupon all outstanding Notes, including both
principal and interest thereon, shall be and become immediately due and payable
together with all other amounts payable under the Loan Documents without further
demand, presentment, protest or notice of any kind. The Administrative Agent,
after giving notice to the Borrowers pursuant to Section 6.1(c) or this Section
6.2, shall also promptly send a copy of such notice to the other Lenders, but
the failure to do so shall not impair or annul the effect of such notice.
Section 6.3. Bankruptcy Defaults. When any Event of Default described
in subsections (g) or (h) of Section 6.1 hereof has occurred and is continuing,
then all outstanding Notes shall immediately become due and payable together
with all other amounts payable under the Loan Documents without presentment,
demand, protest or notice of any kind, the obligation of the Lenders to extend
further credit pursuant to any of the terms hereof shall immediately terminate.
Section 6.4. Notice of Default. The Administrative Agent shall give
notice to the Borrowers under Section 6.1(c) hereof promptly upon being
requested to do so by any Lender and shall thereupon notify all the Lenders
thereof.
Section 6.5. Expenses. The Borrowers agree to pay to the
Administrative Agent and each Lender, and any other holder of any Note
outstanding hereunder, all costs and expenses reasonably incurred or paid by the
Administrative Agent and such Lender or any such holder, including reasonable
attorneys' fees and court costs, in connection with any Default or Event of
Default by the Borrowers hereunder or in connection with the enforcement of any
of the Loan
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Documents (including all such costs and expenses incurred in connection with any
proceeding under the United States Bankruptcy Code involving any Borrower as a
debtor thereunder).
SECTION 7. CHANGE IN CIRCUMSTANCES AND CONTINGENCIES.
Section 7.1. Funding Indemnity. If any Lender shall incur any loss,
cost or expense (including, without limitation, any loss of profit, and any
loss, cost or expense incurred by reason of the liquidation or re-employment of
deposits or other funds acquired by such Lender to fund or maintain any
Eurodollar Loan or the relending or reinvesting of such deposits or amounts paid
or prepaid to such Lender or by reason of breakage of interest rate swap
agreements or the liquidation of other hedging contracts or agreements) as a
result of:
(a) any payment, prepayment or conversion of a Eurodollar
Loan on a date other than the last day of its Interest Period,
(b) any failure (because of a failure to meet the
conditions of Section 3 or otherwise) by the Borrowers to borrow or
continue a Eurodollar Loan, or to convert a Base Rate Loan into a
Eurodollar Loan, on the date specified in a notice given pursuant to
Section 2.3(a) hereof,
(c) any failure by the Borrowers to make any payment of
principal on any Eurodollar Loan when due (whether by acceleration or
otherwise), or
(d) any acceleration of the maturity of a Eurodollar Loan
as a result of the occurrence of any Event of Default hereunder,
then, upon the demand of such Lender, the Borrowers shall pay to such Lender
such amount as will reimburse such Lender for such loss, cost or expense. If any
Lender makes such a claim for compensation, it shall provide to the Borrowers,
with a copy to the Administrative Agent, a certificate setting forth the amount
of such loss, cost or expense in reasonable detail (including an explanation of
the basis for and the computation of such loss, cost or expense) and the amounts
shown on such certificate shall be conclusive absent manifest error.
Section 7.2. Illegality. Notwithstanding any other provisions of this
Agreement or any Note, if at any time any change in applicable law, rule or
regulation or in the interpretation thereof makes it unlawful for any Lender to
make or continue to maintain any Eurodollar Loans or to perform its obligations
as contemplated hereby, such Lender shall promptly give notice thereof to the
Borrowers and the Administrative Agent and such Lender's obligations to make or
maintain Eurodollar Loans under this Agreement shall be suspended until it is no
longer unlawful for such Lender to make or maintain Eurodollar Loans. The
Borrowers shall prepay on demand the outstanding principal amount of any such
affected Eurodollar Loans, together with all interest accrued thereon and all
other amounts then due and payable to such Lender under this Agreement;
provided, however, subject to all of the terms and conditions of this Agreement,
the Borrowers may then elect to borrow the principal amount of the affected
Eurodollar Loans from such Lender by means of Base Rate Loans from such Lender,
which Base Rate Loans shall not be made ratably by the Lenders but only from
such affected Lender.
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Section 7.3. Unavailability of Deposits or Inability to Ascertain, or
Inadequacy of, LIBOR. If on or prior to the first day of any Interest Period for
any Borrowing of Eurodollar Loans:
(a) the Administrative Agent determines that deposits in
Dollars (in the applicable amounts) are not being offered to it in the
interbank eurodollar market for such Interest Period, or that by reason
of circumstances affecting the interbank eurodollar market adequate and
reasonable means do not exist for ascertaining the applicable LIBOR, or
(b) the Required Lenders advise the Administrative Agent
that (i) LIBOR as determined by the Administrative Agent will not
adequately and fairly reflect the cost to such Lenders of funding their
Eurodollar Loans for such Interest Period or (ii) that the making or
funding of Eurodollar Loans become impracticable,
then the Administrative Agent shall forthwith give notice thereof to the
Borrowers and the Lenders, whereupon until the Administrative Agent notifies the
Borrowers that the circumstances giving rise to such suspension no longer exist,
the obligations of the Lenders to make Eurodollar Loans shall be suspended.
Section 7.4. Yield Protection. (a) If, on or after the date hereof,
the adoption of any applicable law, rule or regulation, or any change therein,
or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or its
Lending Office) with any request or directive (whether or not having the force
of law) of any such authority, central bank or comparable agency:
(i) shall subject any Lender (or its Lending Office) to
any tax, duty or other charge with respect to its Eurodollar Loans, its
Notes, or its obligation to make Eurodollar Loans, or shall change the
basis of taxation of payments to any Lender (or its Lending Office) of
the principal of or interest on its Eurodollar Loans, or any other
amounts due under this Agreement or any other Loan Document in respect
of its Eurodollar Loans, or its obligation to make Eurodollar Loans
(except for changes in the rate of tax on the overall net income of
such Lender or its Lending Office imposed by the jurisdiction in which
such Lender's principal executive office or Lending Office is located);
or
(ii) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including, without limitation,
any such requirement imposed by the Board of Governors of the Federal
Reserve System, but excluding with respect to any Eurodollar Loans any
such requirement included in an applicable Reserve Percentage) against
assets of, deposits with or for the account of, or credit extended by,
any Lender (or its Lending Office) or shall impose on any Lender (or
its Lending Office) or on the interbank market any other condition
affecting its Eurodollar Loans, its Notes, or its obligation to make
Eurodollar Loans;
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and the result of any of the foregoing is to increase the cost to such Lender
(or its Lending Office) of making or maintaining any Eurodollar Loan, or to
reduce the amount of any sum received or receivable by such Lender (or its
Lending Office) under this Agreement or under any other Loan Document with
respect thereto, by an amount deemed by such Lender to be material, then, within
15 days after demand by such Lender (with a copy to the Administrative Agent),
the Borrowers shall be obligated to pay to such Lender such additional amount or
amounts as will compensate such Lender for such increased cost or reduction.
(b) If, after the date hereof, any Lender or the Administrative
Agent shall have determined that the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change therein, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Lending Office) or
any corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has had the effect of reducing the rate of
return on such Lender's or such corporation's capital as a consequence of its
obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change or compliance
(taking into consideration such Lender's or such corporation's policies with
respect to capital adequacy) by an amount deemed by such Lender to be material,
then from time to time, within 15 days after demand by such Lender (with a copy
to the Administrative Agent), the Borrowers shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such reduction.
(c) A certificate of a Lender claiming compensation under this
Section 7.4 and setting forth the additional amount or amounts to be paid to it
hereunder shall be conclusive absent manifest error. In determining such amount,
such Lender may use any reasonable averaging and attribution methods.
Section 7.5. Substitution of Lenders. Upon the receipt by the
Borrowers of (a) a claim from any Lender for compensation under Section 7.4 or
9.1 hereof, (b) notice by any Lender to the Borrowers of any illegality pursuant
to Section 7.2 hereof or (c) in the event any Lender is in default in any
material respect with respect to its obligations under the Loan Documents (any
such Lender referred to in clause (a), (b) or (c) above being hereinafter
referred to as an "Affected Lender"), the Borrowers may, in addition to any
other rights the Borrowers may have hereunder or under applicable law, require,
at Borrowers' expense, any such Affected Lender to assign, at par plus accrued
interest and fees, without recourse, all of its interest, rights, and
obligations hereunder (including its Commitment and the Loans and other amounts
at any time owing to it hereunder and the other Loan Documents) to a bank or
other institutional lender specified by the Borrowers, provided that (i) such
assignment shall not conflict with or violate any law, rule or regulation or
order of any court or other governmental authority, (ii) the Borrowers shall
have received the written consent of the Administrative Agent, which consent
shall not be unreasonably withheld, to such assignment, (iii) the Borrowers
shall have paid to the Affected Lender all monies (together with amounts due
such Affected Lender under Section 7.1 hereof as if the Loans owing to it were
prepaid rather than assigned) other than principal owing
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to it hereunder, and (iv) the assignment is entered into in accordance with the
other requirements of Section 9.12 hereof.
Section 7.6. Lending Offices. Each Lender may, at its option, elect to
make its Loans hereunder at the branch, office or affiliate specified on the
appropriate signature page hereof (each a "Lending Office") for each type of
Loan available hereunder or at such other of its branches, offices or affiliates
as it may from time to time elect and designate in a written notice to the
Borrowers and the Administrative Agent. To the extent reasonably possible, a
Lender shall designate an alternative branch or funding office with respect to
its Eurodollar Loans to reduce any liability of the Borrowers to such Lender
under Section 7.4 hereof or to avoid the unavailability of Eurodollar Loans
under Section 7.3 hereof, so long as such designation is not disadvantageous to
the Lender.
Section 7.7. Discretion of Lender as to Manner of Funding.
Notwithstanding any other provision of this Agreement, each Lender shall be
entitled to fund and maintain its funding of all or any part of its Loans in any
manner it sees fit, it being understood, however, that for the purposes of this
Agreement all determinations hereunder with respect to Eurodollar Loans shall be
made as if each Lender had actually funded and maintained each Eurodollar Loan
through the purchase of deposits in the interbank eurodollar market having a
maturity corresponding to such Loan's Interest Period, and bearing an interest
rate equal to LIBOR for such Interest Period.
SECTION 8. THE ADMINISTRATIVE AGENT.
Section 8.1. Appointment and Authorization of Administrative Agent.
Each Lender hereby appoints Fifth Third Bank, an Ohio banking corporation, as
the Administrative Agent under the Loan Documents and hereby authorizes the
Administrative Agent to take such action as Administrative Agent on its behalf
and to exercise such powers under the Loan Documents as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto. Notwithstanding the use of the word
"Administrative Agent" as a defined term, the Lenders expressly agree that the
Administrative Agent is not acting as a fiduciary of any Lender in respect of
the Loan Documents, the Borrowers or otherwise, and nothing herein or in any of
the other Loan Documents shall result in any duties or obligations on the
Administrative Agent or any of the Lenders except as expressly set forth herein.
Section 8.2. Administrative Agent and its Affiliates. The
Administrative Agent shall have the same rights and powers under this Agreement
and the other Loan Documents as any other Lender and may exercise or refrain
from exercising such rights and power as though it were not the Administrative
Agent, and the Administrative Agent and its affiliates may accept deposits from,
lend money to, and generally engage in any kind of business with any Borrower or
any Affiliate of a Borrower as if it were not the Administrative Agent under the
Loan Documents. The term "Lender" as used herein and in all other Loan
Documents, unless the context otherwise clearly requires, includes the
Administrative Agent in its individual capacity as a Lender. References in
Section 2 hereof to the Administrative Agent's Loans, or to the amount owing to
the Administrative Agent for which an interest rate is being determined, refer
to the Administrative Agent in its individual capacity as a Lender.
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Section 8.3. Action by Administrative Agent. If the Administrative
Agent receives from the Borrowers a written notice of an Event of Default
pursuant to Section 5.11 of the Existing Agreement incorporated herein by
reference, or of any other Event of Default hereunder, the Administrative Agent
shall promptly give each of the Lenders written notice thereof. Without limiting
the generality of the foregoing, the Administrative Agent shall not be required
to take any action hereunder with respect to any Default or Event of Default,
except as expressly provided in Sections 6.2 and 6.4. In no event, however,
shall the Administrative Agent be required to take any action in violation of
applicable law or of any provision of any Loan Document, and the Administrative
Agent shall in all cases be fully justified in failing or refusing to act
hereunder or under any other Loan Document unless it first receives any further
assurances of its indemnification from the Lenders that it may require,
including prepayment of any related expenses and any other protection it
requires against any and all costs, expense, and liability which may be incurred
by it by reason of taking or continuing to take any such action. The
Administrative Agent shall be entitled to assume that no Default or Event of
Default exists unless notified in writing to the contrary by a Lender or the
Borrowers. In all cases in which the Loan Documents do not require the
Administrative Agent to take specific action, the Administrative Agent shall be
fully justified in using its discretion in failing to take or in taking any
action thereunder. Any instructions of the Required Lenders, or of any other
group of Lenders called for under the specific provisions of the Loan Documents,
shall be binding upon all the Lenders and the holders of the Obligations.
Section 8.4. Consultation with Experts. The Administrative Agent may
consult with legal counsel, independent public accountants, and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with the advice of such counsel,
accountants or experts.
Section 8.5. Liability of Administrative Agent; Credit Decision.
Neither the Administrative Agent nor any of its directors, officers, agents or
employees shall be liable for any action taken or not taken by it in connection
with the Loan Documents: (i) with the consent or at the request of the Required
Lenders or (ii) in the absence of its own gross negligence or willful
misconduct. Neither the Administrative Agent nor any of its directors, officers,
agents or employees shall be responsible for or have any duty to ascertain,
inquire into or verify: (i) any statement, warranty or representation made in
connection with this Agreement, any other Loan Document or any Credit Event;
(ii) the performance or observance of any of the covenants or agreements of the
Borrowers contained herein or in any other Loan Document; (iii) the satisfaction
of any condition specified in Section 3 hereof, except receipt of items required
to be delivered to the Administrative Agent; or (iv) the validity,
effectiveness, genuineness, enforceability, perfection, value, worth or
collectibility hereof or of any other Loan Document or of any other documents or
writing furnished in connection with any Loan Document; and the Administrative
Agent makes no representation of any kind or character with respect to any such
matter mentioned in this sentence. The Administrative Agent may execute any of
its duties under any of the Loan Documents by or through employees, agents, and
attorneys-in-fact and shall not be answerable to the Lenders, the Borrowers, or
any other Person for the default or misconduct of any such agents or
attorneys-in-fact selected with reasonable care. The Administrative Agent shall
not incur any liability by acting in reliance upon any notice, consent,
certificate, other document or statement (whether written or oral) believed by
it to be genuine or
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to be sent by the proper party or parties. In particular and without limiting
any of the foregoing, the Administrative Agent shall have no responsibility for
confirming the accuracy of any compliance certificate or other document or
instrument received by it under the Loan Documents. The Administrative Agent may
treat the payee of any Note as the holder thereof until written notice of
transfer shall have been filed with the Administrative Agent signed by such
payee in form satisfactory to the Administrative Agent. Each Lender acknowledges
that it has independently and without reliance on the Administrative Agent or
any other Lender, and based upon such information, investigations and inquiries
as it deems appropriate, made its own credit analysis and decision to extend
credit to the Borrowers in the manner set forth in the Loan Documents. It shall
be the responsibility of each Lender to keep itself informed as to the
creditworthiness of the Borrowers, and the Administrative Agent shall have no
liability to any Lender with respect thereto.
Section 8.6. Indemnity. The Lenders shall ratably, in accordance with
their respective Percentages, indemnify and hold the Administrative Agent, and
its directors, officers, employees, agents, and representatives harmless from
and against any liabilities, losses, costs or expenses suffered or incurred by
it under any Loan Document or in connection with the transactions contemplated
thereby, regardless of when asserted or arising, except to the extent they are
promptly reimbursed for the same by the Borrowers and except to the extent that
any event giving rise to a claim was caused by the gross negligence or willful
misconduct of the party seeking to be indemnified. The obligations of the
Lenders under this Section shall survive termination of this Agreement. The
Administrative Agent shall be entitled to offset amounts received for the
account of a Lender under this Agreement against unpaid amounts (other than
contingent amounts) due from such Lender to the Administrative Agent hereunder
(whether as fundings of participations, indemnities or otherwise), but shall not
be entitled to offset against amounts owed to the Administrative Agent by any
Lender arising outside of this Agreement and the other Loan Documents.
Section 8.7. Resignation of Administrative Agent and Successor
Administrative Agent. The Administrative Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrowers. Upon any such
resignation of the Administrative Agent, the Required Lenders shall have the
right to appoint a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving of notice of resignation then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which may be any Lender hereunder or any commercial bank
organized under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $200,000,000. Upon the
acceptance of its appointment as the Administrative Agent hereunder, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights and duties of the retiring Administrative Agent under the Loan
Documents, and the retiring Administrative Agent shall be discharged from its
duties and obligations thereunder. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the provisions of this Section 8
and all protective provisions of the other Loan Documents shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent, but no successor Administrative Agent shall in any event
be liable or responsible for any actions of its
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predecessor. If the Administrative Agent resigns and no successor is appointed,
the rights and obligations of such Administrative Agent shall be automatically
assumed by the Required Lenders and the Borrowers shall be directed to make all
payments due each Lender hereunder directly to such Lender.
Section 8.8. Designation of Additional Agents. The Administrative
Agent shall have the continuing right, for purposes hereof, at any time and from
time to time to designate one or more of the Lenders (and/or its or their
Affiliates) as "syndication agents," "documentation agents," "arrangers" or
other designations for purposes hereto, but such designation shall have no
substantive effect, and such Lenders and their Affiliates shall have no
additional powers, duties or responsibilities as a result thereof.
SECTION 9. MISCELLANEOUS.
Section 9.1. Withholding Taxes. (a) Payments Free of Withholding.
Except as otherwise required by law and subject to Section 9.1(b) hereof, each
payment by the Borrowers under this Agreement or the other Loan Documents shall
be made without withholding for or on account of any present or future taxes
(other than overall net income taxes on the recipient imposed by the
jurisdiction in which its principal executive office or Lending Office is
located) imposed by or within the jurisdiction in which the Borrowers are
domiciled, any jurisdiction from which the Borrowers make any payment, or (in
each case) any political subdivision or taxing authority thereof or therein. If
any such withholding is so required, the Borrowers shall make the withholding,
pay the amount withheld to the appropriate governmental authority before
penalties attach thereto or interest accrues thereon and forthwith pay such
additional amount as may be necessary to ensure that the net amount actually
received by each Lender and the Administrative Agent free and clear of such
taxes (including such taxes on such additional amount) is equal to the amount
which that Lender or the Administrative Agent (as the case may be) would have
received had such withholding not been made. If the Administrative Agent or any
Lender pays any amount in respect of any such taxes, penalties or interest, the
Borrowers shall reimburse the Administrative Agent or such Lender for that
payment on demand in the currency in which such payment was made. If the
Borrowers pay any such taxes, penalties or interest, they shall deliver official
tax receipts evidencing that payment or certified copies thereof to the Lender
or Administrative Agent on whose account such withholding was made (with a copy
to the Administrative Agent if not the recipient of the original) on or before
the thirtieth day after payment.
(b) U.S. Withholding Tax Exemptions. Each Lender that is not a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) shall submit to the Borrowers and the Administrative Agent on or before
the date the initial Credit Event is made hereunder or, if later, the date such
financial institution becomes a Lender hereunder, two duly completed and signed
copies of (i) either Form W-8 BEN (relating to such Lender and entitling it to a
complete exemption from withholding under the Code on all amounts to be received
by such Lender, including fees, pursuant to the Loan Documents and the
Obligations) or Form W-8 ECI (relating to all amounts to be received by such
Lender, including fees, pursuant to the Loan Documents and the Obligations) of
the United States Internal Revenue Service or (ii) solely if such Lender is
claiming exemption from United States withholding tax under Section 871(h) or
881(c) of the
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Code with respect to payments of "portfolio interest", a Form W-8 BEN, or any
successor form prescribed by the Internal Revenue Service, and a certificate
representing that such Lender is not a bank for purposes of Section 881(c) of
the Code, is not a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code) of any Borrower and is not a controlled foreign
corporation related to such Borrower (within the meaning of Section 864(d)(4) of
the Code). Thereafter and from time to time, each Lender shall submit to the
Borrowers and the Administrative Agent such additional duly completed and signed
copies of one or the other of such Forms (or such successor forms as shall be
adopted from time to time by the relevant United States taxing authorities) and
such other certificates as may be (i) requested by the Borrowers in a written
notice, directly or through the Administrative Agent, to such Lender and (ii)
required under then-current United States law or regulations to avoid or reduce
United States withholding taxes on payments in respect of all amounts to be
received by such Lender, including fees, pursuant to the Loan Documents or the
Obligations. Upon the request of the Borrowers or the Administrative Agent, each
Lender that is a United States person (as such term is defined in Section
7701(a)(30) of the Code) shall submit to the Borrowers and the Administrative
Agent a certificate to the effect that it is such a United States person.
(c) Inability of Lender to Submit Forms. If any Lender determines,
as a result of any change in applicable law, regulation or treaty, or in any
official application or interpretation thereof, that it is unable to submit to
the Borrowers or the Administrative Agent any form or certificate that such
Lender is obligated to submit pursuant to subsection (b) of this Section 9.1 or
that such Lender is required to withdraw or cancel any such form or certificate
previously submitted or any such form or certificate otherwise becomes
ineffective or inaccurate, such Lender shall promptly notify the Borrowers and
Administrative Agent of such fact and the Lender shall to that extent not be
obligated to provide any such form or certificate and will be entitled to
withdraw or cancel any affected form or certificate, as applicable.
Section 9.2. No Waiver, Cumulative Remedies. No delay or failure on
the part of the Administrative Agent or any Lender or on the part of the holder
or holders of any of the Obligations in the exercise of any power or right under
any Loan Document shall operate as a waiver thereof or as an acquiescence in any
default, nor shall any single or partial exercise of any power or right preclude
any other or further exercise thereof or the exercise of any other power or
right. The rights and remedies hereunder of the Administrative Agent, the
Lenders and of the holder or holders of any of the Obligations are cumulative
to, and not exclusive of, any rights or remedies which any of them would
otherwise have.
Section 9.3. Non-Business Days. If any payment hereunder becomes due
and payable on a day which is not a Business Day, the due date of such payment
shall be extended to the next succeeding Business Day on which date such payment
shall be due and payable. In the case of any payment of principal falling due on
a day which is not a Business Day, interest on such principal amount shall
continue to accrue during such extension at the rate per annum then in effect,
which accrued amount shall be due and payable on the next scheduled date for the
payment of interest.
Section 9.4. Documentary Taxes. The Borrowers agree to pay on demand
any documentary, stamp or similar taxes payable in respect of this Agreement or
any other Loan
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Document, including interest and penalties, in the event any such taxes are
assessed, irrespective of when such assessment is made and whether or not any
credit is then in use or available hereunder.
Section 9.5. Survival of Representations. All representations and
warranties made herein or in any other Loan Document or in certificates given
pursuant hereto or thereto shall survive the execution and delivery of this
Agreement and the other Loan Documents, and shall continue in full force and
effect with respect to the date as of which they were made as long as any credit
is in use or available hereunder.
Section 9.6. Survival of Indemnities. All indemnities and other
provisions relative to reimbursement to the Lenders of amounts sufficient to
protect the yield of the Lenders with respect to the Loans, including, but not
limited to, Sections 7.1, 7.4, and 9.15 hereof, shall survive the termination of
this Agreement and the other Loan Documents and the payment of the Obligations.
Section 9.7. Sharing of Set-Off. Each Lender agrees with each other
Lender a party hereto that if such Lender shall receive and retain any payment,
whether by set-off or application of deposit balances or otherwise, on any of
the Loans in excess of its ratable share of payments on all such Obligations
then outstanding to the Lenders, then such Lender shall purchase for cash at
face value, but without recourse, ratably from each of the other Lenders such
amount of the Loans held by each such other Lenders (or interest therein) as
shall be necessary to cause such Lender to share such excess payment ratably
with all the other Lenders; provided, however, that if any such purchase is made
by any Lender, and if such excess payment or part thereof is thereafter
recovered from such purchasing Lender, the related purchases from the other
Lenders shall be rescinded ratably and the purchase price restored as to the
portion of such excess payment so recovered, but without interest.
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Section 9.8. Notices. Except as otherwise specified herein, all
notices hereunder and under the other Loan Documents shall be in writing
(including, without limitation, notice by telecopy) and shall be given to the
relevant party at its address or telecopier number set forth below, or such
other address or telecopier number as such party may hereafter specify by notice
to the Administrative Agent and the Borrowers given by courier, by United States
certified or registered mail, by telecopy or by other telecommunication device
capable of creating a written record of such notice and its receipt. Notices
under the Loan Documents to the Lenders and the Administrative Agent shall be
addressed to their respective addresses or telecopier numbers set forth on the
signature pages hereof, and to the Borrowers to:
Health Care REIT, Inc.
One Seagate, Suite 1500
Toledo, Ohio 43603-1475
Attention: Mr. George L. Chapman
Telephone: (419) 247-2800
Telecopy: (419) 247-2826
With a copy of any notice of an Event of Default to:
Shumaker, Loop & Kendrick, LLP
North Courthouse Square
1000 Jackson
Toledo, Ohio 43624-1573
Attention: Ms. Mary Ellen Pisanelli, Esq.
Telephone: (419) 241-9000
Telecopy: (419) 241-6894
Each such notice, request or other communication shall be effective (i) if given
by telecopier, when such telecopy is transmitted to the telecopier number
specified in this Section or on the signature pages hereof and a confirmation of
such telecopy has been received by the sender, (ii) if given by mail, 5 days
after such communication is deposited in the mail, certified or registered with
return receipt requested, addressed as aforesaid or (iii) if given by any other
means, when delivered at the addresses specified in this Section or on the
signature pages hereof; provided that any notice given pursuant to Section 2
hereof shall be effective only upon receipt.
Section 9.9. Counterparts. This Agreement may be executed in any
number of counterparts, and by the different parties hereto on separate
counterpart signature pages, and all such counterparts taken together shall be
deemed to constitute one and the same instrument.
Section 9.10. Successors and Assigns. This Agreement shall be binding
upon the Borrowers and their successors and assigns, and shall inure to the
benefit of the Administrative Agent and each of the Lenders and the benefit of
their respective successors and assigns, including any subsequent holder of any
of the Obligations. The Borrowers may not assign any of their respective rights
or obligations under any Loan Document without the written consent of all of the
Lenders.
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Section 9.11. Participants. Each Lender shall have the right at its
own cost to grant participations (to be evidenced by one or more agreements or
certificates of participation) in the Loans made and/or Commitments held by such
Lender at any time and from time to time to one or more other Persons; provided
that no such participation shall relieve any Lender of any of its obligations
under this Agreement, and, provided, further that no such participant shall have
any rights under this Agreement except as provided in this Section, and the
Administrative Agent shall have no obligation or responsibility to such
participant. Any agreement pursuant to which such participation is granted shall
provide that the granting Lender shall retain the sole right and responsibility
to enforce the obligations of the Borrowers under this Agreement and the other
Loan Documents including, without limitation, the right to approve any
amendment, modification or waiver of any provision of the Loan Documents, except
that such agreement may provide that, without the consent of such participant,
such Lender will not agree to any modification, amendment or waiver of the Loan
Documents that (i) would reduce the amount of or postpone any fixed date for
payment of any Obligation in which such participant has an interest or (ii)
would require the consent of all Lenders pursuant to Section 9.13(ii) hereof.
Any party to which such a participation has been granted shall have the benefits
of Section 7.1 and Section 7.4 hereof. The Borrowers authorize each Lender to
disclose to any participant or prospective participant under this Section any
financial or other information pertaining to any Borrower. Each Lender that
grants any participation hereunder shall cause each of its participants that is
not a United States person (as such term is defined in Section 7701(a)(30) of
the Code) to comply with those Lender requirements set forth in Section 9.1(b)
hereof.
Section 9.12. Assignments. (a) Each Lender shall have the right at any
time, with the prior written consent of the Administrative Agent and the
Borrowers (unless an Event of Default then exists or the proposed assignee is an
Affiliate of such assigning Lender), which consents shall not be unreasonably
withheld, to sell, assign, transfer or negotiate all or any part of their rights
and obligations under the Loan Documents (including, without limitation, the
indebtedness evidenced by the Note then held by such assigning Lender, together
with an equivalent percentage of its obligation to make Loans) to one or more
commercial banks or other financial institutions or investors, provided that,
unless otherwise agreed to by the Administrative Agent, such assignment shall be
of a fixed percentage (and not by its terms a varying percentage) of the
assigning Lender's rights and obligations under the Loan Documents; provided,
however, that in order to make any such assignment (i) unless the assigning
Lender is assigning all of its Commitment, and outstanding Loans, the assigning
Lender shall retain at least $5,000,000 in an unused Commitment, and outstanding
Loans, (ii) the assignee Lender shall have a Commitment, and outstanding Loans
of at least $5,000,000, (iii) each such assignment shall be evidenced by a
written agreement (substantially in the form attached hereto as Exhibit D or in
such other form acceptable to the Administrative Agent) executed by such
assigning Lender, such assignee Lender or Lenders, the Administrative Agent and,
if required as provided above, the Borrowers, which agreement shall specify in
each instance the portion of the Obligations which are to be assigned to the
assignee Lender and the portion of the Commitment of the assigning Lender to be
assumed by the assignee Lender, and (iv) the assigning Lender shall pay to the
Administrative Agent a processing fee of $3,500 and any out-of-pocket attorneys'
fees and expenses incurred by the Administrative Agent in connection with any
such assignment agreement. Any such assignee shall become a Lender for all
purposes hereunder to the extent of the rights and obligations under the Loan
Documents it assumes and the assigning Lender shall be released from its
obligations,
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and will have released its rights, under the Loan Documents to the extent of
such assignment. The address for notices to such assignee Lender shall be as
specified in the assignment agreement executed by it. Promptly upon the
effectiveness of any such assignment agreement, the Borrowers shall execute and
deliver a replacement Note to the assignee Lender and the assigning Lender in
the respective amounts of their Commitments (or assigned principal amounts, as
applicable) after giving effect to the reduction occasioned by such assignment
(all such Notes to constitute "Notes" for all purposes of the Loan Documents),
and the assignee Lender shall thereafter surrender to the Borrowers its old
Note. The Borrowers authorize each Lender to disclose to any purchaser or
prospective purchaser of an interest in the Loans owed to it or its Commitment
under this Section any financial or other information pertaining to each
Borrower. Each purchaser that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) shall comply with those Lender
requirements set forth in Section 9.1(b) hereof.
(b) Any Lender may at any time pledge or grant a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any such pledge or grant to a Federal Reserve Bank,
and this Section shall not apply to any such pledge or grant of a security
interest; provided that no such pledge or grant of a security interest shall
release a Lender from any of its obligations hereunder or substitute any such
pledgee or secured party for such Lender as a party hereto; provided further,
however, the right of any such pledgee or grantee (other than any Federal
Reserve Bank) to further transfer all or any portion of the rights pledged or
granted to it, whether by means of foreclosure or otherwise, shall be at all
times subject to the terms of this Agreement.
Section 9.13. Amendments. Any provision of this Agreement or the other
Loan Documents may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by (a) the Borrowers, (b) the Required
Lenders, and (c) if the rights or duties of the Administrative Agent are
affected thereby, the Administrative Agent; provided that:
(i) no amendment or waiver pursuant to this Section 9.13
shall (A) increase any Commitment of any Lender without the consent of
such Lender or (B) reduce the amount of or postpone the date for
payment of any principal of or interest on any Loan or of any fee
payable hereunder without the consent of the Lender to which such
payment is owing; and
(ii) no amendment or waiver pursuant to this Section 9.13
shall, unless signed by each Lender, increase the aggregate Commitments
of the Lenders, change the definitions of Termination Date or Required
Lenders, change the provisions of this Section 9.13, or affect the
number of Lenders required to take any action hereunder or under any
other Loan Document.
Section 9.14. Headings. Section headings used in this Agreement are
for reference only and shall not affect the construction of this Agreement.
Section 9.15. Costs and Expenses; Indemnification. The Borrowers agree
to pay all costs and expenses of the Administrative Agent in connection with the
preparation, negotiation,
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syndication, and administration of the Loan Documents, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent, in connection with the preparation and execution of the
Loan Documents, and any amendment, waiver or consent related thereto, whether or
not the transactions contemplated herein are consummated. The Borrowers agree to
pay all costs and expenses of each Lender incurred in connection with collection
of amounts owed under this Agreement or under any other Loan Document or in the
enforcement of this Agreement or of any other Loan Document. The Borrowers
further agree to indemnify the Administrative Agent, each Lender, and their
respective directors, officers, employees, agents, financial advisors, and
consultants against all Damages (including, without limitation, all expenses of
litigation or preparation therefor, whether or not the indemnified Person is a
party thereto, or any settlement arrangement arising from or relating to any
such litigation) which any of them may pay or incur arising out of or relating
to any Loan Document or any of the transactions contemplated thereby or the
direct or indirect application or proposed application of the proceeds of any
Loan, other than those which arise from the gross negligence or willful
misconduct of the party claiming indemnification. The Borrowers, upon demand by
the Administrative Agent or a Lender at any time, shall reimburse the
Administrative Agent or such Lender for any legal or other expenses incurred in
connection with investigating or defending against any of the foregoing
(including any settlement costs relating to the foregoing) except if the same is
directly due to the gross negligence or willful misconduct of the party to be
indemnified. The obligations of the Borrowers under this Section shall survive
the termination of this Agreement.
Section 9.16. Set-off. In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
upon the occurrence of any Event of Default, each Lender and each subsequent
holder of any Obligation is hereby authorized by the Borrowers at any time or
from time to time, without notice to the Borrowers or to any other Person, any
such notice being hereby expressly waived, to set-off and to appropriate and to
apply any and all deposits (general or special, including, but not limited to,
indebtedness evidenced by certificates of deposit, whether matured or unmatured,
but not including trust accounts, and in whatever currency denominated) and any
other indebtedness at any time held or owing by that Lender or that subsequent
holder to or for the credit or the account of the Borrowers, whether or not
matured, against and on account of the Obligations of the Borrowers to that
Lender or that subsequent holder under the Loan Documents, including, but not
limited to, all claims of any nature or description arising out of or connected
with the Loan Documents, irrespective of whether or not (a) that Lender or that
subsequent holder shall have made any demand hereunder or (b) the principal of
or the interest on the Loans or Notes and other amounts due hereunder shall have
become due and payable pursuant to Section 6 and although said obligations and
liabilities, or any of them, may be contingent or unmatured.
Section 9.17. Entire Agreement. The Loan Documents constitute the
entire understanding of the parties thereto with respect to the subject matter
thereof and any prior agreements, whether written or oral, with respect thereto
are superseded hereby.
Section 9.18. Governing Law. This Agreement and the other Loan
Documents, and the rights and duties of the parties hereto, shall be construed
and determined in accordance with the internal laws of the State of Ohio.
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Section 9.19. Severability of Provisions. Any provision of any Loan
Document which is unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction. All rights, remedies
and powers provided in this Agreement and the other Loan Documents may be
exercised only to the extent that the exercise thereof does not violate any
applicable mandatory provisions of law, and all the provisions of this Agreement
and other Loan Documents are intended to be subject to all applicable mandatory
provisions of law which may be controlling and to be limited to the extent
necessary so that they will not render this Agreement or the other Loan
Documents invalid or unenforceable.
Section 9.20. Excess Interest. Notwithstanding any provision to the
contrary contained herein or in any other Loan Document, no such provision shall
require the payment or permit the collection of any amount of interest in excess
of the maximum amount of interest permitted by applicable law to be charged for
the use or detention, or the forbearance in the collection, of all or any
portion of the Loans or other obligations outstanding under this Agreement or
any other Loan Document ("Excess Interest"). If any Excess Interest is provided
for, or is adjudicated to be provided for, herein or in any other Loan Document,
then in such event (a) the provisions of this Section shall govern and control,
(b) neither the Borrowers nor any endorser shall be obligated to pay any Excess
Interest, (c) any Excess Interest that the Administrative Agent or any Lender
may have received hereunder shall, at the option of the Administrative Agent, be
(i) applied as a credit against the then outstanding principal amount of
Obligations hereunder and accrued and unpaid interest thereon (not to exceed the
maximum amount permitted by applicable law), (ii) refunded to the Borrowers, or
(iii) any combination of the foregoing, (d) the interest rate payable hereunder
or under any other Loan Document shall be automatically subject to reduction to
the maximum lawful contract rate allowed under applicable usury laws (the
"Maximum Rate"), and this Agreement and the other Loan Documents shall be deemed
to have been, and shall be, reformed and modified to reflect such reduction in
the relevant interest rate, and (e) neither the Borrowers nor any endorser shall
have any action against the Administrative Agent or any Lender for any Damages
whatsoever arising out of the payment or collection of any Excess Interest.
Notwithstanding the foregoing, if for any period of time interest on any of
Borrowers' Obligations is calculated at the Maximum Rate rather than the
applicable rate under this Agreement, and thereafter such applicable rate
becomes less than the Maximum Rate, the rate of interest payable on the
Borrowers' Obligations shall remain at the Maximum Rate until the Lenders have
received the amount of interest which such Lenders would have received during
such period on the Borrowers' Obligations had the rate of interest not been
limited to the Maximum Rate during such period.
Section 9.21. Lender's Obligations Several. The obligations of the
Lenders hereunder are several and not joint. Nothing contained in this Agreement
and no action taken by the Lenders pursuant hereto shall be deemed to constitute
the Lenders a partnership, association, joint venture or other entity.
Section 9.22. Submission to Jurisdiction; Waiver of Jury Trial. Each
Borrower hereby submits to the nonexclusive jurisdiction of the United States
District Court for the Southern District of Ohio and of any Ohio State court
sitting in the City of Cincinnati for purposes of all
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legal proceedings arising out of or relating to this Agreement, the other Loan
Documents or the transactions contemplated hereby or thereby. Each Borrower
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum. EACH BORROWER, THE
ADMINISTRATIVE AGENT, AND THE LENDERS HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY.
[SIGNATURE PAGES TO FOLLOW]
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This Agreement is entered into between us for the uses and purposes
hereinabove set forth as of 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 KENTUCKY PROPERTIES, LLC
By Health Care REIT, Inc.
Its Member
HCRI MASSACHUSETTS PROPERTIES TRUST II
By HCRI Massachusetts Properties, Inc.
Its Trustee
HCRI SATYR HILL, LLC
By Health Care REIT, Inc., as the member of
HCRI Maryland Properties, LLC
Its Member
[BORROWERS CONTINUED ON FOLLOWING PAGE]
S-1
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, LIMITED
PARTNERSHIP
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 MISSISSIPPI PROPERTIES, INC.
HCRI ILLINOIS PROPERTIES, LLC
By Health Care REIT, Inc.
Its Member
HCRI MISSOURI PROPERTIES, LLC
By Health Care REIT, Inc.
Its Member
HCRI SURGICAL PROPERTIES, LLC
By Health Care REIT, Inc.
Its Member
HCRI TUCSON PROPERTIES, INC.
HCRI INVESTMENTS, INC.
HCRI CHICAGO PROPERTIES, INC.
By /s/ George L. Chapman
Name: George L. Chapman
Title: Chief Executive Officer
GEORGE L. CHAPMAN, as Chief Executive Officer of all of the
aforementioned entities, has executed this Credit 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 Credit Agreement separately for each of the above named
entities.
S-2
FIFTH THIRD BANK, an Ohio banking
corporation, as a Lender and as
Administrative Agent
By /s/ Lisa Anderson
Name: Lisa Anderson
Title: Vice President
Address:
Fifth Third Center
MD 109047
Cincinnati, Ohio 45263
Attention: Loan Syndications
Telecopy: (513) 534-3663
Telephone: (513) 534-7246
S-3
FIRST FEDERAL BANK OF THE MIDWEST, as a
Lender
By /s/ Gregory R. Allen
Name: Gregory R. Allen
Title: Executive Vice President
Address:
601 Clinton Street
P.O. Box 248
Defiance, OH 43512
Attention: Gregory R. Allen
Telecopy: (419) 784-2841
Telephone: (419) 782-5260
S-4
MERCANTILE-SAFE DEPOSIT AND TRUST
COMPANY, as a Lender
By /s/ Robert P. Whelen Jr.
Name: Robert P. Whelen Jr.
Title: Vice President
Address:
Two Hopkins Plaza
P.O. Box 1477
Baltimore, Maryland 21203
Attention: Robert P. Whalen Jr.
Telecopy: (410) 237-5703
Telephone: (410) 237-5717
S-5
EXHIBIT A
NOTICE OF BORROWING
Date: __________, ____
To: Fifth Third Bank, as Administrative Agent for the Lenders parties to
the Credit Agreement dated as of May 28, 2004 (as extended, renewed,
amended or restated from time to time, the "Credit Agreement"), among
Health Care REIT, Inc., certain of its subsidiaries which are
signatories thereto, certain Lenders which are signatories thereto, and
Fifth Third Bank, as Administrative Agent
Ladies and Gentlemen:
The undersigned, Health Care REIT, Inc., refers to the Credit
Agreement, the terms defined therein being used herein as therein defined, and
hereby gives you notice irrevocably, pursuant to Section 2.3 of the Credit
Agreement, of the Borrowing specified below:
1. The Business Day of the proposed Borrowing is
___________, ____.
2. The aggregate amount of the proposed Borrowing is
$______________.
3. The Borrowing is to be comprised of $___________ of
[BASE RATE] [EURODOLLAR] Loans.
[4. THE DURATION OF THE INTEREST PERIOD FOR THE
EURODOLLAR LOANS INCLUDED IN THE BORROWING SHALL BE ____________
MONTHS.]
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the proposed Borrowing,
before and after giving effect thereto and to the application of the proceeds
therefrom:
(a) the representations and warranties of the Borrowers
contained in Section 4 of the Credit Agreement are true and correct as
though made on and as of such date (except to the extent such
representations and warranties relate to an earlier date, in which case
they are true and correct as of such date); and
(b) no Default or Event of Default has occurred and is
continuing or would result from such proposed Borrowing.
HEALTH CARE REIT, INC., individually and as
agent for the Borrowers
By_________________________________________
Name:____________________________________
Title:___________________________________
-2-
EXHIBIT B
NOTICE OF CONTINUATION/CONVERSION
Date: ____________, ____
To: Fifth Third Bank, as Administrative Agent for the Lenders parties to
the Credit Agreement dated as of May 28, 2004 (as extended, renewed,
amended or restated from time to time, the "Credit Agreement") among
Health Care REIT, Inc., certain of its subsidiaries which are
signatories thereto, certain Lenders which are signatories thereto, and
Fifth Third Bank, as Administrative Agent
Ladies and Gentlemen:
The undersigned, Health Care REIT, Inc., refers to the Credit
Agreement, the terms defined therein being used herein as therein defined, and
hereby gives you notice irrevocably, pursuant to Section 2.3 of the Credit
Agreement, of the [CONVERSION] [CONTINUATION] of the Loans specified herein,
that:
1. The conversion/continuation Date is __________, ____.
2. The aggregate amount of the Loans to be [CONVERTED]
[CONTINUED] is $______________.
3. The Loans are to be [CONVERTED INTO] [CONTINUED AS]
[EURODOLLAR] [BASE RATE] Loans.
4. [IF APPLICABLE:] The duration of the Interest Period
for the Loans included in the [CONVERSION] [CONTINUATION] shall be
_________ months.
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the proposed conversion/continuation
date, before and after giving effect thereto and to the application of the
proceeds therefrom:
(a) the representations and warranties of the Borrowers
contained in Section 4 of the Credit Agreement are true and correct as
though made on and as of such date (except to the extent such
representations and warranties relate to an earlier date, in which case
they are true and correct as of such date); and
(b) no Default or Event of Default has occurred and is
continuing, or would result from such proposed [CONVERSION]
[CONTINUATION].
HEALTH CARE REIT, INC., individually and as
agent for the Borrowers
By_________________________________________
Name:___________________________________
Title:__________________________________
-2-
EXHIBIT C
REVOLVING NOTE
U.S. $_______________ May 28, 2004
FOR VALUE RECEIVED, each of the undersigned (the "Borrowers") hereby
promise to pay to the order of ____________________________ (the "Lender") on
the Termination Date of the hereinafter defined Credit Agreement, at the
principal office of Fifth Third Bank, as Administrative Agent, in Cincinnati,
Ohio, in immediately available funds, the principal sum of ___________________
Dollars ($__________) or, if less, the aggregate unpaid principal amount of all
Loans made by the Lender to the Borrowers pursuant to the Credit Agreement,
together with interest on the principal amount of each Loan from time to time
outstanding hereunder at the rates, and payable in the manner and on the dates,
specified in the Credit Agreement.
This Note is one of the Notes referred to in the Credit Agreement dated
as of May 28, 2004, among the Borrowers, Fifth Third Bank, an Ohio banking
corporation, as Administrative Agent and the Lenders party thereto (the "Credit
Agreement"), and this Note and the holder hereof are entitled to all the
benefits provided for thereby or referred to therein, to which Credit Agreement
reference is hereby made for a statement thereof. All defined terms used in this
Note, except terms otherwise defined herein, shall have the same meaning as in
the Credit Agreement. This Note shall be governed by and construed in accordance
with the internal laws of the State of Ohio.
Certain prepayments may be made hereon and this Note may be declared
due prior to the expressed maturity hereof, all in the events, on the terms and
in the manner as provided for in the Credit Agreement.
The Borrowers hereby waive demand, presentment, protest or notice of
any kind hereunder.
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.
[BORROWERS CONTINUED ON FOLLOWING PAGE]
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 KENTUCKY PROPERTIES, LLC
By Health Care REIT, Inc.
Its Member
HCRI MASSACHUSETTS PROPERTIES TRUST II
By HCRI Massachusetts Properties, Inc.
Its Trustee
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.
[BORROWERS CONTINUED ON FOLLOWING PAGE]
-2-
HCRI NORTH CAROLINA PROPERTIES III, LIMITED
PARTNERSHIP
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 MISSISSIPPI PROPERTIES, INC.
HCRI ILLINOIS PROPERTIES, LLC
By Health Care REIT, Inc.
Its Member
HCRI MISSOURI PROPERTIES, LLC
By Health Care REIT, Inc.
Its Member
HCRI SURGICAL PROPERTIES, LLC
By Health Care REIT, Inc.
Its Member
HCRI TUCSON PROPERTIES, INC.
HCRI INVESTMENTS, INC.
HCRI CHICAGO PROPERTIES, INC.
By _____________________________________
Name: George L. Chapman
Title: Chief Executive Officer
GEORGE L. CHAPMAN, as Chief Executive Officer of all of the
aforementioned entities, has executed this Revolving Note and intending that all
entities above named are bound and are to be bound by the one signature as if he
had executed this Revolving Note separately for each of the above named
entities.
-3-
EXHIBIT D
ASSIGNMENT AND ACCEPTANCE
Dated _____________, _______
Reference is made to the Credit Agreement dated as of May 28 , 2004
(the "Credit Agreement") among Health Care REIT, Inc., certain of its
subsidiaries as Borrowers party to the Credit Agreement, the Lenders (as defined
in the Credit Agreement) and Fifth Third Bank, as Administrative Agent for the
Lenders (the "Administrative Agent"). Terms defined in the Credit Agreement are
used herein with the same meaning.
______________________________________________________ (the "Assignor")
and _________________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the
Assignee, 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 Credit Agreement as of the Effective Date (as
defined below), including, without limitation, such percentage interest
in the Assignor's Commitments as in effect on the Effective Date and
the Loans, if any, owing to the Assignor on the Effective Date.
2. The Assignor (i) represents and warrants that as of
the date hereof (A) its Commitment is $_______________, (B) the
aggregate outstanding principal amount of Loans made by it under the
Credit Agreement that have not been repaid is $___________ and a
description of the interest rates and interest periods of such Loans is
attached as Annex 1 hereto; (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, lien, or encumbrance of any kind; (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 Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit
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
taken as a whole or the performance or observance by the Borrowers of
any of their respective obligations under the Credit Agreement or any
other instrument or document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a copy
of the Credit Agreement, together with copies of the most recent
financial statements delivered to the Lenders pursuant to Section 5.1
and Section 5.2 of the Existing Agreement incorporated by reference in
and to the Credit Agreement 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 Administrative Agent, the
Assignor or any other Lender 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 Credit Agreement; (iii) appoints and authorizes the
Administrative Agent to take such action as Administrative Agent on its
behalf and to exercise such powers under the Credit Agreement and the
other Loan Documents as are delegated to the Administrative Agent by
the terms thereof, together with such powers as are reasonably
incidental thereto; (iv) agrees that it will perform in accordance with
their terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender; and (v)
specifies as its lending office (and address for notices) the offices
set forth beneath its name on the signature pages hereof.
4. As consideration for the assignment and sale
contemplated in Annex 1 hereof, the Assignee shall pay to the Assignor
on the Effective Date in Federal funds the amount agreed upon between
the Assignor and the Assignee. It is understood that commitment fees
accrued to the Effective Date with respect to the interest assigned
hereby are for the account of the Assignor and such fees accruing from
and including the date hereof are for the account of the Assignee. Each
of the Assignor and the Assignee hereby agrees that if it receives any
amount under the Credit Agreement which is for the account of the other
party hereto, it shall receive the same for the account of such other
party to the extent of such other party's interest therein and shall
promptly pay the same to such other party.
5. 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 Administrative Agent for acceptance and recording by the
Administrative Agent and, if required, the Borrowers.
6. Upon such acceptance and recording, as of the
Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender 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 Credit Agreement.
7. Upon such acceptance and recording, from and after
the Effective Date, the Administrative Agent shall make all payments
under the Credit Agreement 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
Credit Agreement for periods prior to the Effective Date directly
between themselves.
8. In accordance with Section 9.12 of the Credit
Agreement, the Assignor and the Assignee request and direct that the
Administrative Agent prepare and cause the Borrowers to execute and
deliver to the Assignee the relevant Note payable to the Assignee in
the amount of its Commitment and a new Note to the Assignor in the
amount of its Commitments after giving effect to this assignment. If
the Assignee is not a United States person (as such term is defined in
Section 7701(a)(30) of the Code), it shall
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comply with those Lender requirements set forth in Section 9.1(b) of
the Credit Agreement.
9. This Assignment and Acceptance shall be governed by,
and construed in accordance with, the laws of the State of Ohio.
[Assignor Lender]
By______________________________________________
Name_________________________________________
Title________________________________________
[Assignee Lender]
By______________________________________________
Name_________________________________________
Title________________________________________
Lending office (and address for notices):
Accepted and consented this
____ day of _____________, _____
HEALTH CARE REIT, INC.
By______________________________
Name__________________________
Title_________________________
Accepted and consented to by the Administrative Agent this
_______ day of _________________, _____
FIFTH THIRD BANK, an Ohio banking corporation,
as Administrative Agent
By______________________________
Name__________________________
Title_________________________
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ANNEX I
TO ASSIGNMENT AND ACCEPTANCE
PRINCIPAL AMOUNT TYPE OF LOAN INTEREST RATE MATURITY DATE
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SCHEDULE I
LIST OF BORROWERS
STATE OF
NAME OF BORROWER ORGANIZATION
----------------- ------------
Health Care REIT, Inc. Delaware
HCRI Pennsylvania Properties, Inc. Pennsylvania
HCRI Texas Properties, Inc. Delaware
HCRI Texas Properties, Ltd. Texas
HCRI Nevada Properties, Inc. Nevada
HCRI Louisiana Properties, L.P. Delaware
Health Care REIT International, Inc. Delaware
HCN Atlantic GP, Inc. Delaware
HCN Atlantic LP, Inc. Delaware
HCN BCC Holdings, Inc. Delaware
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 Holdings Trust Massachusetts
HCRI North Carolina Properties, LLC Delaware
HCRI Southern Investments I, Inc. Delaware
HCRI Tennessee Properties, Inc. Delaware
Pennsylvania BCC Properties, Inc. Pennsylvania
HCRI Kentucky Properties, LLC Kentucky
HCRI Massachusetts Properties Trust II Massachusetts
HCRI Satyr Hill, LLC Virginia
HCRI Friendship, LLC Virginia
HCRI St. Charles, LLC Virginia
HCRI Maryland Properties, LLC Maryland
HCRI Laurel, LLC Maryland
HCRI North Carolina Properties I, Inc. North Carolina
HCRI North Carolina Properties III, Limited Partnership North Carolina
HCRI North Carolina Properties II, Inc. North Carolina
HCRI Wisconsin Properties, LLC Wisconsin
HCRI Mississippi Properties, Inc. Mississippi
HCRI Illinois Properties, LLC Delaware
HCRI Missouri Properties, LLC Delaware
HCRI Surgical Properties, LLC Ohio
HCRI Tucson Properties, Inc. Delaware
HCRI Investments, Inc. Delaware
HCRI Chicago Properties, Inc. Delaware
SCHEDULE II
COMMITMENTS
NAME OF LENDER COMMITMENT
Fifth Third Bank $20,000,000
First Federal Bank of the Midwest $ 5,000,000
Mercantile-Safe Deposit and Trust Company $ 5,000,000
TOTAL $30,000,000
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