EXECUTION COPY
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CREDIT AGREEMENT
Dated as of June 27, 2002
by and among
SENIOR HOUSING PROPERTIES TRUST,
as Borrower
WACHOVIA SECURITIES, INC.,
as Joint Lead Arranger and Sole Book
Runner,
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
as Joint Lead Arranger,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
ING CAPITAL LLC,
as Syndication Agent,
Each of
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
and,
UBS WARBURG LLC,
as Documentation Agent,
and
THE FINANCIAL INSTITUTIONS PARTY HERETO
AND THEIR ASSIGNEES UNDER SECTION 12.5.,
as Lenders
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TABLE OF CONTENTS
Article I. Definitions.........................................................1
Section 1.1. Definitions...................................................1
Section 1.2. General; References to Times.................................26
Article II. Credit Facility...................................................26
Section 2.1. Revolving Loans..............................................26
Section 2.2. Swingline Loans..............................................27
Section 2.3. Letters of Credit............................................29
Section 2.4. Rates and Payment of Interest on Loans.......................33
Section 2.5. Number of Interest Periods...................................34
Section 2.6. Repayment of Loans...........................................34
Section 2.7. Prepayments..................................................34
Section 2.8. Continuation.................................................34
Section 2.9. Conversion...................................................35
Section 2.10. Notes.......................................................35
Section 2.11. Voluntary Reductions of the Commitment......................36
Section 2.12. Expiration or Maturity Date of Letters of Credit Past
Termination Date............................................36
Section 2.13. Amount Limitations..........................................36
Section 2.14. Increase of Commitments.....................................36
Section 2.15. Extension of Termination Date...............................37
Article III. Payments, Fees and Other General Provisions......................38
Section 3.1. Payments.....................................................38
Section 3.2. Pro Rata Treatment...........................................38
Section 3.3. Sharing of Payments, Etc.....................................39
Section 3.4. Several Obligations..........................................39
Section 3.5. Minimum Amounts..............................................40
Section 3.6. Fees.........................................................40
Section 3.7. Computations.................................................41
Section 3.8. Usury........................................................41
Section 3.9. Agreement Regarding Interest and Charges.....................41
Section 3.10. Statements of Account.......................................42
Section 3.11. Defaulting Lenders..........................................42
Section 3.12. Taxes.......................................................43
Article IV. Yield Protection, Etc............................................45
Section 4.1. Additional Costs; Capital Adequacy...........................45
Section 4.2. Suspension of LIBOR Loans....................................46
Section 4.3. Illegality...................................................47
Section 4.4. Compensation.................................................47
Section 4.5. Affected Lenders.............................................47
Section 4.6. Treatment of Affected Loans..................................48
Section 4.7. Change of Lending Office.....................................48
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Section 4.8. Assumptions Concerning Funding of LIBOR Loans................49
Article V. Conditions Precedent...............................................49
Section 5.1. Initial Conditions Precedent.................................49
Section 5.2. Conditions Precedent to All Loans and Letters of Credit......52
Section 5.3. Conditions as Covenants......................................52
Article VI. Representations and Warranties....................................52
Section 6.1. Representations and Warranties...............................52
Section 6.2. Survival of Representations and Warranties, Etc..............59
Article VII. Affirmative Covenants............................................59
Section 7.1. Preservation of Existence and Similar Matters................59
Section 7.2. Compliance with Applicable Law and Material Contracts........59
Section 7.3. Maintenance of Property......................................59
Section 7.4. Conduct of Business..........................................60
Section 7.5. Insurance....................................................60
Section 7.6. Payment of Taxes and Claims..................................60
Section 7.7. Visits and Inspections.......................................60
Section 7.8. Use of Proceeds; Letters of Credit...........................61
Section 7.9. Environmental Matters........................................61
Section 7.10. Books and Records...........................................61
Section 7.11. Further Assurances..........................................61
Section 7.12. New Subsidiaries/Guarantors.................................62
Section 7.13. REIT Status.................................................62
Section 7.14. Exchange Listing............................................62
Article VIII. Information.....................................................62
Section 8.1. Quarterly Financial Statements...............................63
Section 8.2. Year-End Statements..........................................63
Section 8.3. Compliance Certificate.......................................63
Section 8.4. Other Information............................................64
Article IX. Negative Covenants................................................67
Section 9.1. Financial Covenants..........................................67
Section 9.2. Indebtedness.................................................68
Section 9.3. Certain Permitted Investments................................68
Section 9.4. Investments Generally........................................69
Section 9.5. Liens; Negative Pledges; Other Matters.......................70
Section 9.6. Restricted Payments..........................................70
Section 9.7. Merger, Consolidation, Sales of Assets and Other
Arrangements.................................................71
Section 9.8. Fiscal Year..................................................71
Section 9.9. Modifications to Advisory Agreement and Other Material
Contracts....................................................72
Section 9.10. Transactions with Affiliates................................72
Section 9.11. ERISA Exemptions............................................72
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Article X. Default............................................................72
Section 10.1. Events of Default...........................................72
Section 10.2. Remedies Upon Event of Default..............................76
Section 10.3. Remedies Upon Default.......................................77
Section 10.4. Allocation of Proceeds......................................77
Section 10.5. Collateral Account..........................................78
Section 10.6. Performance by Agent........................................79
Section 10.7. Rights Cumulative...........................................79
Article XI. The Agent.........................................................79
Section 11.1. Authorization and Action....................................79
Section 11.2. Agent's Reliance, Etc.......................................80
Section 11.3. Notice of Defaults..........................................81
Section 11.4. Wachovia as Lender..........................................81
Section 11.5. Approvals of Lenders........................................81
Section 11.6. Lender Credit Decision, Etc.................................82
Section 11.7. Indemnification of Agent....................................82
Section 11.8. Successor Agent.............................................83
Section 11.9. Titled Agents...............................................84
Article XII. Miscellaneous...................................................84
Section 12.1. Notices.....................................................84
Section 12.2. Expenses....................................................85
Section 12.3. Setoff......................................................85
Section 12.4. LITIGATION; JURISDICTION; OTHER MATTERS; WAIVERS............86
Section 12.5. Successors and Assigns......................................87
Section 12.6. Amendments..................................................89
Section 12.7. Nonliability of Agent and Lenders...........................90
Section 12.8. Confidentiality.............................................90
Section 12.9. Indemnification.............................................91
Section 12.10. Termination; Survival......................................93
Section 12.11. Severability of Provisions.................................93
Section 12.12. GOVERNING LAW..............................................93
Section 12.13. Counterparts...............................................93
Section 12.14. Obligations with Respect to Loan Parties...................93
Section 12.15. Limitation of Liability....................................94
Section 12.16. Entire Agreement...........................................94
Section 12.17. Construction...............................................94
Section 12.18. LIABILITY OF TRUSTEES, ETC.................................94
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SCHEDULE 1.1.(a) Pricing
SCHEDULE 1.1.(b) Acquired Property Lien Documents
SCHEDULE 1.1.(c) Existing Ground Leases
SCHEDULE 1.1.(d) List of Loan Parties
SCHEDULE 6.1.(b) Ownership Structure
SCHEDULE 6.1.(f) Title to Properties; Liens
SCHEDULE 6.1.(g) Indebtedness and Guaranties
SCHEDULE 6.1.(h) Material Contracts
SCHEDULE 6.1.(i) Litigation
SCHEDULE 6.1.(k) Financial Statements
SCHEDULE 6.1.(y) List of Unencumbered Assets
EXHIBIT A Form of Assignment and Acceptance Agreement
EXHIBIT B Form of Guaranty
EXHIBIT C Form of Notice of Borrowing
EXHIBIT D Form of Notice of Continuation
EXHIBIT E Form of Notice of Conversion
EXHIBIT F Form of Notice of Swingline Borrowing
EXHIBIT G Form of Swingline Note
EXHIBIT H Form of Revolving Note
EXHIBIT I-1 Form of Opinion of Counsel
EXHIBIT I-2 Form of Opinion of Special Maryland Counsel
EXHIBIT J Form of Compliance Certificate
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THIS CREDIT AGREEMENT dated as of June 27, 2002 by and among Senior
Housing Properties Trust, a real estate investment trust organized under the
laws of the State of Maryland (the "Borrower"), WACHOVIA SECURITIES, INC., as
Joint Lead Arranger and Sole Book Runner, DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES, as Joint Lead Arranger, WACHOVIA BANK, NATIONAL ASSOCIATION, as
Agent, ING CAPITAL LLC, as Syndication Agent, each of DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES and UBS WARBURG LLC, as Documentation Agent, and each
of the financial institutions initially a signatory hereto together with their
assignees pursuant to Section 12.5.(d).
WHEREAS, the Agent and the Lenders desire to make available to the
Borrower a revolving credit facility in the initial amount of $250,000,000,
which will include a $50,000,000 letter of credit subfacility and a $25,000,000
swingline subfacility, on the terms and conditions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto agree as follows:
ARTICLE I. DEFINITIONS
Section 1.1. Definitions.
In addition to terms defined elsewhere herein, the following terms
shall have the following meanings for the purposes of this Agreement:
"Accession Agreement" means an Accession Agreement substantially in the
form of Annex I to the Guaranty.
"Acquired Encumbered Properties" means the Senior Housing Assets
subject, as of the Agreement Date, to the Liens created under Acquired Property
Lien Documents.
"Acquired Property Lien Documents" means those documents relating to
the Liens on the Acquired Encumbered Properties as described on Schedule
1.1.(b), each as amended, supplemented or otherwise modified from time to time
(except that amendments, supplements and modifications which (x) result in the
Lien created by such lease or mortgage being spread to Senior Housing Assets
other than the Acquired Encumbered Properties or (y) change any non-recourse
provisions of such lease or mortgage applicable to lease or loan payments
thereunder in a manner which is materially adverse to the lessee or mortgagor,
must, in each case, be approved by the Requisite Lenders).
"Additional Costs" has the meaning given that term in Section 4.1.
"Adjusted EBITDA" means, with respect to a Person for any given period,
EBITDA for such period less the Capital Expenditure Reserve for such period.
"Adjusted Eurodollar Rate" means, with respect to each Interest Period
for any LIBOR Loan, the rate obtained by dividing (a) LIBOR for such Interest
Period by (b) a percentage equal to 1 minus the stated maximum rate (stated as a
decimal) of all reserves, if any, required to be maintained against
"Eurocurrency liabilities" as specified in Regulation D of the Board of
Governors of the Federal Reserve System (or against any other category of
liabilities which includes deposits by reference to which the interest rate on
LIBOR Loans is determined or any category of extensions of credit or other
assets which includes loans by an office of any Lender outside of the United
States of America to residents of the United States of America).
"Advisory Agreement" means that certain Advisory Agreement dated as of
October 12, 1999 by and between the Borrower and RMR.
"Affiliate" means any Person (other than the Agent or any Lender): (a)
directly or indirectly controlling, controlled by, or under common control with,
the Borrower; (b) directly or indirectly owning or holding ten percent (10.0%)
or more of any Equity Interest in the Borrower; or (c) ten percent (10.0%) or
more of whose voting stock or other Equity Interest is directly or indirectly
owned or held by the Borrower. For purposes of this definition, "control"
(including with correlative meanings, the terms "controlling", "controlled by"
and "under common control with") means the possession directly or indirectly of
the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities or by contract or
otherwise. The Affiliates of a Person shall include any officer or director of
such Person. For purposes of this Agreement, Five Star shall not be deemed to be
an Affiliate of the Borrower so long as each of the board of trustees of the
Borrower and the board of directors of Five Star has at least one independent
director who does not serve as both a Trustee of the Borrower and a director of
Five Star. The term "independent director" has the meaning given such term under
the listing requirements of the New York Stock Exchange, in the case of the
Borrower, and the American Stock Exchange, in the case of Five Star.
"Agent" means Wachovia Bank, National Association, as contractual
representative for the Lenders under the terms of this Agreement, and any of its
successors.
"Agreement Date" means the date as of which this Agreement is dated.
"Ancillary Agreement" means, with respect to any Lease, any material
incidental agreement with respect to such Lease (including, by way of example,
guarantees, and management agreements) to which the Borrower or any Subsidiary
is a party.
"Applicable Law" means all applicable provisions of constitutions,
statutes, rules, regulations and orders of all governmental bodies and all
orders and decrees of all courts, tribunals and arbitrators.
"Applicable Margin" means the percentage per annum determined, at any
time, based on the range into which the Borrower's Credit Rating then falls, in
accordance with Table I set forth in Schedule 1.1.(a). Any change in the
Borrower's Credit Rating which would cause it to move to a different Level in
such table shall effect a change in the Applicable Margin on the Business Day on
which such change occurs. During any period that the Borrower has received
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Credit Ratings that are not equivalent, the Applicable Margin shall be
determined by the lower of such two Credit Ratings. During any period for which
the Borrower has not received a Credit Rating from a Rating Agency equal to or
exceeding the minimum Credit Rating specified on Table I set forth in such
Schedule, then the Applicable Margin shall be determined in accordance with
Table II set forth in such Schedule. As of the Agreement Date, the Applicable
Margin is determined based on Xxxxx 0 of Table II on such Schedule.
"Asset Under Development" means, as of any date of determination, any
Property owned by the Borrower or any of its Subsidiaries on which the
construction of new income-producing improvements has been commenced and is
continuing, both such land and improvements under construction to be valued at
then-current book value, as determined in accordance with GAAP. In the event of
construction of an addition or expansion to an existing income producing
Property, only the addition or expansion shall be considered an Asset Under
Development.
"Assignee" has the meaning given that term in Section 12.5.(d).
"Assignment and Acceptance Agreement" means an Assignment and
Acceptance Agreement among a Lender, an Assignee and the Agent, substantially in
the form of Exhibit A.
"Base Rate" means the per annum rate of interest equal to the greater
of (a) the Prime Rate or (b) the Federal Funds Rate plus one-half of one percent
(0.5%). Any change in the Base Rate resulting from a change in the Prime Rate or
the Federal Funds Rate shall become effective as of 12:01 a.m. on the Business
Day on which each such change occurs. The Base Rate is a reference rate used by
the Lender acting as the Agent in determining interest rates on certain loans
and is not intended to be the lowest rate of interest charged by the Lender
acting as the Agent or any other Lender on any extension of credit to any
debtor.
"Base Rate Loan" means a Loan bearing interest at a rate based on the
Base Rate.
"Base Rent" means the minimum or base rent that a Lease requires a
Lessee to pay. The term excludes: (a) payments (such as real estate taxes,
insurance premiums, and costs of maintenance) that the Lease requires the Lessee
to pay third parties; (b) any element of rent that is conditional, contingent,
or not yet capable of determination; and (c) reserves for capital expenditures
paid to the Borrower or a Subsidiary. If a Lease for multiple Properties does
not separately allocate Base Rent to such Properties, then Base Rent for such
Lease shall be reasonably allocated among such Properties (where necessary) in a
manner satisfactory to Agent.
"Benefit Arrangement" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan
and which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Borrower" has the meaning set forth in the introductory paragraph
hereof and shall include the Borrower's successors and permitted assigns.
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"Business Day" means (a) any day other than a Saturday, Sunday or other
day on which banks in Charlotte, North Carolina or New York, New York are
authorized or required to close and (b) with reference to a LIBOR Loan, any such
day that is also a day on which dealings in Dollar deposits are carried out in
the London interbank market.
"Capital Expenditure Reserve" means an amount equal to $400 per annum
per bed, for a skilled nursing facility, or other unit, for any other Senior
Housing Asset, on which the applicable lease does not require the Lessee to pay
for all capital expenditures.
"Capitalization Rate" means 10.0%.
"Capitalized Lease Obligation" means obligations under a lease that is
required to be capitalized for financial reporting purposes in accordance with
GAAP. The amount of a Capitalized Lease Obligation is the capitalized amount of
such obligation as would be required to be reflected on the balance sheet
prepared in accordance with GAAP of the applicable Person as of the applicable
date.
"Cash Equivalents" means: (a) securities issued, guaranteed or insured
by the United States of America or any of its agencies with maturities of not
more than one year from the date acquired; (b) certificates of deposit with
maturities of not more than one year from the date acquired issued by a United
States federal or state chartered commercial bank of recognized standing, or a
commercial bank organized under the laws of any other country which is a member
of the Organization for Economic Cooperation and Development, or a political
subdivision of any such country, acting through a branch or agency, which bank
at the time of the acquisition thereof has capital and unimpaired surplus in
excess of $500,000,000.00 and which bank or its holding company at the time of
the acquisition thereof has a short-term commercial paper rating of at least A-2
or the equivalent by S&P or at least P-2 or the equivalent by Xxxxx'x; (c)
reverse repurchase agreements with terms of not more than seven days from the
date acquired, for securities of the type described in clause (a) above and
entered into only with commercial banks having the qualifications described in
clause (b) above; (d) commercial paper issued by any Person incorporated under
the laws of the United States of America or any State thereof and rated at the
time of the acquisition thereof at least A-2 or the equivalent thereof by S&P or
at least P-2 or the equivalent thereof by Xxxxx'x, in each case with maturities
of not more than one year from the date acquired; and (e) investments in money
market funds registered under the Investment Company Act of 1940, which have at
the time of the acquisition thereof net assets of at least $500,000,000.00 and
at least 85% of whose assets consist of securities and other obligations of the
type described in clauses (a) through (d) above.
"Collateral Account" means a special non-interest bearing deposit
account maintained by the Agent at the Principal Office and under its sole
dominion and control.
"Commitment" means, as to each Lender, such Lender's obligation to make
Revolving Loans pursuant to Section 2.1., to issue (in the case of the Agent) or
participate in (in the case of the Lenders) Letters of Credit pursuant to
Section 2.3.(a) and 2.3.(i), respectively, and to participate in Swingline Loans
pursuant to Section 2.2.(e), to an aggregate amount up to, but not exceeding
(but in the case of the Lender acting as the Agent excluding the aggregate
amount of
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participations in the Letters of Credit held by other Lenders), the amount set
forth for such Lender on its signature page hereto as such Lender's "Commitment
Amount" or as set forth in the applicable Assignment and Acceptance Agreement,
as the same may be reduced from time to time pursuant to Section 2.11.,
increased pursuant to Section 2.14., or as appropriate to reflect any
assignments to or by such Lender effected in accordance with Section 12.5.
"Commitment Percentage" means, as to each Lender, the ratio, expressed
as a percentage, of (a) the amount of such Lender's Commitment to (b) the
aggregate amount of the Commitments of all Lenders hereunder; provided, however,
that if at the time of determination the Commitments have terminated or been
reduced to zero, the "Commitment Percentage" of each Lender shall be the
Commitment Percentage of such Lender in effect immediately prior to such
termination or reduction.
"Compliance Certificate" has the meaning given that term in Section
8.3.
"Continue", "Continuation" and "Continued" each refers to the
continuation of a LIBOR Loan from one Interest Period to another Interest Period
pursuant to Section 2.8.
"Convert", "Conversion" and "Converted" each refers to the conversion
of a Loan of one Type into a Loan of another Type pursuant to Section 2.9.
"Credit Event" means any of the following: (a) the making (or deemed
making) of any Loan, (b) the Conversion of a Loan and (c) the issuance of a
Letter of Credit.
"Credit Rating" means the lowest rating assigned by a Rating Agency to
each series of rated senior unsecured long term indebtedness of the Borrower.
"Debt Service" means, for any period, the sum of : (a) Interest Expense
of the Borrower and its Subsidiaries determined on a consolidated basis for such
period and (b) all regularly scheduled principal payments made with respect to
Indebtedness of the Borrower and its Subsidiaries during such period, other than
any balloon, bullet or similar principal payment which repays such Indebtedness
in full.
"Default" means any of the events specified in Section 10.1., whether
or not there has been satisfied any requirement for the giving of notice, the
lapse of time, or both.
"Defaulting Lender" has the meaning set forth in Section 3.11.
"Developable Property" means (a) any Property on which there are no
improvements or (b) any Property (or portion thereof) acquired by the Borrower
or any Subsidiary for the purpose of being developed. Developable Property shall
not include any Property that is an Asset Under Development.
"Dollars" or "$" means the lawful currency of the United States of
America.
"Due Diligence Reports" means, as to any Senior Housing Asset Pool or
individual
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Senior Housing Asset not in a Senior Housing Asset Pool, (a) a Lease Abstract,
in the case of Senior Housing Assets that are leased pursuant to Leases, and (b)
such other information as the Agent may reasonably request in order to evaluate
such Senior Housing Asset Pool or Senior Housing Asset.
"EBITDA" means, with respect to a Person for any period: (a) net income
(or loss) of such Person for such period determined on a consolidated basis, in
accordance with GAAP, exclusive of the following (but only to the extent
included in determination of such net income (loss)): (i) depreciation and
amortization expense; (ii) interest expense; (iii) income tax expense; (iv)
extraordinary or non-recurring gains and losses; (v) in the case of the
Borrower, funds received by the Borrower or a Subsidiary as rent but which are
reserved for capital expenses and (vi) in the case of the Borrower,
distributions on the existing Trust Preferred Securities; plus (b) such Person's
pro rata share of EBITDA of its Unconsolidated Affiliates. Deferred percentage
rent adjustments required under GAAP shall be disregarded in determinations of
EBITDA (to the extent such adjustments otherwise would be included in the
determination of EBITDA).
"EBITDAR Ratio" means, with respect to any separately leased Senior
Housing Asset or any Senior Housing Asset Pool, or any Senior Housing Asset or
group of Senior Housing Assets securing a Mortgage Note, and for any period, the
ratio of (a) Property NOI for such Senior Housing Asset, Senior Housing Asset
Pool or group of Senior Housing Assets for such period to (b) rental or mortgage
payments due to the Borrower or any Subsidiary for the same such period with
respect to such Senior Housing Asset, Senior Housing Asset Pool or group of
Senior Housing Assets, exclusive of the portion of such rent received by the
Borrower or any Subsidiary which is escrowed for capital expenditures.
"Effective Date" means the later of: (a) the Agreement Date; and (b)
the date on which all of the conditions precedent set forth in Section 5.1.
shall have been fulfilled or waived in writing by the Requisite Lenders.
"Eligible Assignee" means any Person who is: (i) currently a Lender;
(ii) a commercial bank, trust company, insurance company, investment bank or
pension fund organized under the laws of the United States of America, or any
state thereof, and having total assets in excess of $5,000,000,000; (iii) a
savings and loan association or savings bank organized under the laws of the
United States of America, or any state thereof, and having a tangible net worth
of at least $500,000,000; or (iv) a commercial bank organized under the laws of
any other country which is a member of the Organization for Economic Cooperation
and Development, or a political subdivision of any such country, and having
total assets in excess of $10,000,000,000, provided that such bank is acting
through a branch or agency located in the United States of America. If such
Person is not currently a Lender, such Person's senior unsecured long term
indebtedness must be rated BBB or higher by S&P, Baa2 or higher by Xxxxx'x, or
the equivalent or higher of either such rating by another rating agency
acceptable to the Agent. Notwithstanding the foregoing, during any period in
which an Event of Default shall have occurred and be continuing under any of
subsections (a), (b), (f) or (g) of Section 10.1., the term "Eligible Assignee"
shall mean any Person that is not an individual.
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"Environmental Laws" means any Applicable Law relating to environmental
protection or the manufacture, storage, disposal or clean-up of Hazardous
Materials including, without limitation, the following: Clean Air Act, 42
U.S.C.ss.7401 et seq.; Federal Water Pollution Control Act, 33 U.S.C.ss.1251 et
seq.; Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act, 42 U.S.C.ss.6901 et seq.; Comprehensive Environmental Response,
Compensation and Liability Act, 42 X.X.X.xx. 9601 et seq.; National
Environmental Policy Act, 42 U.S.C.ss.4321 et seq.; regulations of the
Environmental Protection Agency and any applicable rule of common law and any
judicial interpretation thereof relating primarily to the environment or
Hazardous Materials.
"Equity Interest" means, with respect to any Person, any share of
capital stock of (or other ownership or profit interests in) such Person, any
warrant, option or other right for the purchase or other acquisition from such
Person of any share of capital stock of (or other ownership or profit interests
in) such Person, any security (other than a security constituting Indebtedness)
convertible into or exchangeable for any share of capital stock of (or other
ownership or profit interests in) such Person or warrant, right or option for
the purchase or other acquisition from such Person of such shares (or such other
interests), and any other ownership or profit interest in such Person
(including, without limitation, partnership, member or trust interests therein),
whether voting or nonvoting, and whether or not such share, warrant, option,
right or other interest is authorized or otherwise existing on any date of
determination.
"Equity Issuance" means any issuance by a Person of any Equity Interest
and shall in any event include the issuance of any Equity Interest upon the
conversion or exchange of any security constituting Indebtedness that is
convertible or exchangeable, or is being converted or exchanged, for Equity
Interests.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
in effect from time to time.
"ERISA Group" means the Borrower, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"Event of Default" means any of the events specified in Section 10.1.,
provided that any requirement for notice or lapse of time or any other condition
has been satisfied.
"Excluded Subsidiary" means any Subsidiary (a) formed for the specific
purpose of holding title to assets which are collateral for Secured Indebtedness
of such Subsidiary; (b) which is prohibited from Guaranteeing the Indebtedness
of any other Person pursuant to (i) any document, instrument or agreement
evidencing such Secured Indebtedness or (ii) a provision of such Person's
Governing Documents which provision was included in such Person's Governing
Documents as a condition to the extension of such Secured Indebtedness; and (c)
for which none of the Borrower, any Subsidiary (other than another Excluded
Subsidiary) or any other Loan Party has Guaranteed any of the Indebtedness of
such Subsidiary or has any direct obligation to maintain or preserve such
Subsidiary's financial condition or to cause such
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Subsidiary to achieve any specified levels of operating results, except for (i)
customary exceptions for fraud, misapplication of funds, environmental
indemnities, and other similar exceptions to recourse liability, and (ii)
guaranties of the refund of any Lessee deposit. In addition, (x) each of SNH
Capital Trust Holdings, SNH Capital Trust I, SNH Capital Trust II and SNH
Capital Trust III shall be deemed to be an Excluded Subsidiary so long as any of
the Trust Preferred Securities remains outstanding, (y) Leisure Park Venture
Limited Partnership shall be deemed to be an Excluded Subsidiary so long as any
Indebtedness secured by the Acquired Property Lien Documents described in Part I
of Schedule 1.1.(b) remains outstanding and (z) CCC of Kentucky Trust shall be
deemed to be an Excluded Subsidiary so long as any Indebtedness secured by the
Acquired Property Lien Documents described in Part II or Part III of Schedule
1.1.(b) remains outstanding.
"Existing Credit Agreement" means that certain Revolving Loan Agreement
dated as of September 15, 1999, by and among the Borrower, the financial
institutions party thereto as "Lenders", Dresdner Bank AG, as Agent, and certain
Subsidiaries of the Borrower.
"Facility Fee" means the per annum percentage in Table I or II set
forth in Schedule 1.1.(b), as applicable, corresponding to the Level at which
the "Applicable Margin" is determined in accordance with the definition thereof.
As of the Agreement Date, the Facility Fee is determined in accordance with
Level 1 of Table II on such Schedule.
"Fair Market Value" means, with respect to (a) a security listed on a
principal national securities exchange, the price of such security as reported
on such exchange by any widely recognized reporting method customarily relied
upon by financial institutions and (b) with respect to any other property, the
price which could be negotiated in an arm's-length free market transaction, for
cash, between a willing seller and a willing buyer, neither of which is under
pressure or compulsion to complete the transaction.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward to the nearest 1/100th of 1%) equal to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such day,
provided that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate quoted to the
Agent by federal funds dealers selected by the Agent on such day on such
transaction as determined by the Agent.
"Fees" means the fees and commissions provided for or referred to in
Section 3.6. and any other fees payable by the Borrower hereunder or under any
other Loan Document.
"Fitch" means Fitch, Inc. and its successors.
"Five Star" means Five Star Quality Care, Inc., a Maryland corporation,
and its successors.
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"Fixed Charges" means, for any period, the sum (without duplication) of
(a) Debt Service for such period and (b) Preferred Dividends for such period.
"Floating Rate Debt" means all Indebtedness of the Borrower and its
Subsidiaries which bears interest at fluctuating rates (and in any event shall
include all Loans and other Indebtedness of the Borrower under any of the Loan
Documents) and for which the Borrower or any such Subsidiary has not obtained
Interest Rate Agreements which Interest Rate Agreements (a) effectively cause
such variable rates to be equivalent to, or to be capped at, fixed rates, (b)
have scheduled termination dates later than the Termination Date and (c) have
terms approved of by the Agent, such approval not to be unreasonably withheld.
"Funds From Operations" means, for any period, (a) net income of the
Borrower for such period determined on a consolidated basis exclusive of the
following (to the extent included in the determination of such net income): (i)
depreciation and amortization; (ii) gains and losses from extraordinary or
non-recurring items; (iii) gains and losses on sales of real estate; (iv) gains
and losses on investments in marketable securities; (v) provisions/benefits for
income taxes for such period; and (vi) distributions on the existing Trust
Preferred Securities plus (b) the Borrower's share of Funds From Operations from
Unconsolidated Affiliates. Straight line rent leveling adjustments and deferred
percentage rent adjustments required under GAAP shall be disregarded in
determinations of Funds From Operations (to the extent such adjustments
otherwise would be included in the determination of Funds From Operations).
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of the Agreement Date.
"Governing Documents" of any Person means the declaration of trust,
certificate or articles of incorporation, by-laws, partnership agreement or
operating or members agreement, as the case may be, and any other organizational
or governing documents, of such Person.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any national, state or local government
(whether domestic or foreign), any political subdivision thereof or any other
governmental, quasi-governmental, regulatory, judicial, public or statutory
instrumentality, authority, body, agency, bureau or entity (including, without
limitation, the Federal Deposit Insurance Corporation, the Comptroller of the
Currency or the Federal Reserve Board, any central bank or any comparable
authority) or any arbitrator with authority to bind a party at law.
"Ground Lease" means (x) each ground lease set forth on Schedule
1.1.(c), as amended, supplemented or otherwise modified from time to time
(provided that any amendment, supplement or other modification thereof does not
(I) decrease the remaining term thereof unless a purchase option or extension
option is granted in exchange for such decrease, (II) change any
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right of the lessee to mortgage and encumber its interest in the leased property
or the free transferability of the lessee's interest under such lease in a
manner which is materially adverse to the lessee, or (III) change any obligation
of the lessor to give the holder of any mortgage Lien on such leased property
written notice of any defaults on the part of the lessee and that such lease
will not be terminated until such holder has had a reasonable opportunity to
cure or complete foreclosures, and fails to do so, in each case in a manner
which is materially adverse to such holder) and (y) a ground lease containing
the following terms and conditions: (a) either (i) a remaining term (taking into
account extensions which may be effected by the lessee without the consent of
the lessor) of no less than 30 years from the Agreement Date, or (ii) the right
of the lessee to purchase the property on terms reasonably acceptable to the
Agent; (b) the right of the lessee to mortgage and encumber its interest in the
leased property; (c) the obligation of the lessor to give the holder of any
mortgage Lien on such leased property written notice of any defaults on the part
of the lessee and that such lease will not be terminated until such holder has
had a reasonable opportunity to cure or complete foreclosures, and fails to do
so; and (d) free transferability of the lessee's interest under such lease,
including ability to sublease, subject to only reasonable consent provisions.
"Guarantor" means any Person that is a party to the Guaranty as a
"Guarantor" and in any event shall include each Material Subsidiary (unless an
Excluded Subsidiary).
"Guaranty", "Guaranteed" or to "Guarantee" as applied to any obligation
means and includes: (a) a guaranty (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), directly or
indirectly, in any manner, of any part or all of such obligation, or (b) an
agreement, direct or indirect, contingent or otherwise, and whether or not
constituting a guaranty, the practical effect of which is to assure the payment
or performance (or payment of damages in the event of nonperformance) of any
part or all of such obligation whether by: (i) the purchase of securities or
obligations, (ii) the purchase, sale or lease (as lessee or lessor) of property
or the purchase or sale of services primarily for the purpose of enabling the
obligor with respect to such obligation to make any payment or performance (or
payment of damages in the event of nonperformance) of or on account of any part
or all of such obligation, or to assure the owner of such obligation against
loss, (iii) the supplying of funds to or in any other manner investing in the
obligor with respect to such obligation, (iv) repayment of amounts drawn down by
beneficiaries of letters of credit (including Letters of Credit), or (v) the
supplying of funds to or investing in a Person on account of all or any part of
such Person's obligation under a Guaranty of any obligation or indemnifying or
holding harmless, in any way, such Person against any part or all of such
obligation. As the context requires, "Guaranty" shall also mean the Guaranty to
which the Guarantors are parties substantially in the form of Exhibit B.
"Hazardous Materials" means all or any of the following: (a) substances
that are defined or listed in, or otherwise classified pursuant to, any
applicable Environmental Laws as "hazardous substances", "hazardous materials",
"hazardous wastes", "toxic substances" or any other formulation intended to
define, list or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity,
"TCLP" toxicity or "EP toxicity"; (b) oil, petroleum or petroleum derived
substances, natural gas, natural gas liquids or synthetic gas and drilling
fluids, produced waters and other wastes associated with the exploration,
development or production of crude oil, natural gas or
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geothermal resources; (c) any flammable substances or explosives or any
radioactive materials; (d) asbestos in any form; and (e) electrical equipment
which contains any oil or dielectric fluid containing levels of polychlorinated
biphenyls in excess of fifty parts per million.
"Indebtedness" means, with respect to a Person, at the time of
computation thereof, all of the following (without duplication): (a) all
obligations of such Person in respect of money borrowed; (b) all obligations of
such Person, whether or not for money borrowed (1) represented by notes payable,
or drafts accepted, in each case representing extensions of credit, (2)
evidenced by bonds, debentures, notes or similar instruments, or (3)
constituting purchase money indebtedness, conditional sales contracts, title
retention debt instruments or other similar instruments, upon which interest
charges are customarily paid or that are issued or assumed as full or partial
payment for property or services rendered; (c) Capitalized Lease Obligations of
such Person; (d) all reimbursement obligations of such Person under any letters
of credit or acceptances (whether or not the same have been presented for
payment); (e) all obligations, contingent or otherwise, of such Person under any
synthetic lease, tax retention operating lease, off balance sheet loan or
similar off balance sheet financing arrangement if the transaction giving rise
to such obligation (1) is considered indebtedness for borrowed money for tax
purposes but is classified as an operating lease under GAAP and (2) does not
(and is not required pursuant to GAAP to) appear as a liability on the balance
sheet of such Person; (f) all obligations of such Person to purchase, redeem,
retire, defease or otherwise make any payment in respect of any Mandatorily
Redeemable Stock issued by such Person or any other Person, valued at the
greater of its voluntary or involuntary liquidation preference plus accrued and
unpaid dividends; (g) all obligations of such Person in respect of any take-out
commitment or forward equity commitment (excluding, in the case of the Borrower
and its Subsidiaries, any such obligation that can be satisfied solely by the
issuance of Equity Interests (other than Mandatorily Redeemable Stock)); (h) all
Indebtedness of other Persons which such Person has Guaranteed or is otherwise
recourse to such Person (excluding guarantees required under Applicable Laws, or
by any Governmental Authority, as a condition to ownership of Senior Housing
Assets); (i) all Indebtedness of another Person secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise, to
be secured by) any Lien (other than Permitted Liens of the type described in
clauses (a) through (d) and (f) through (j) of the definition of such term) on
property or assets owned by such Person, even though such Person has not assumed
or become liable for the payment of such Indebtedness or other payment
obligation, valued, in the case of any such Indebtedness as to which recourse
for the payment thereof is expressly limited to the property or assets on which
such Lien is granted, at the lesser of (1) the stated or determinable amount of
the Indebtedness that is so secured or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) and (2) the Fair Market Value of such
property or assets; and (j) such Person's pro rata share of the Indebtedness of
any Unconsolidated Affiliate of such Person.
"Intellectual Property" has the meaning given that term in Section
6.1.(t).
"Interest Expense" means, with respect to a Person for any period of
time (a) the interest expense whether paid, accrued or capitalized (without
deduction of consolidated interest income) of such Person for such period plus
(b) in the case of the Borrower, the Borrower's pro rata share of Interest
Expense of its Unconsolidated Affiliates. Interest Expense shall exclude any
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amortization of (i) deferred financing fees and (ii) debt discounts (but only to
the extent such discounts do not exceed 3.0% of the initial face principal
amount of such debt).
"Interest Period" means with respect to any LIBOR Loan, each period
commencing on the date such LIBOR Loan is made or the last day of the next
preceding Interest Period for such Loan and ending 7, 30, 60 or 90 days
thereafter, as the Borrower may select in a Notice of Borrowing, Notice of
Continuation or Notice of Conversion, as the case may be, except that each
Interest Period of 30, 60 or 90 day's duration that commences on the last
Business Day of a calendar month shall end on the last Business Day of the
appropriate subsequent calendar month. Notwithstanding the foregoing: (i) if any
Interest Period would otherwise end after the Termination Date, such Interest
Period shall end on the Termination Date; and (ii) each Interest Period that
would otherwise end on a day which is not a Business Day shall end on the next
succeeding Business Day (or, if such next succeeding Business Day falls in the
next succeeding calendar month, on the next preceding Business Day).
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
contractual agreement or arrangement entered into with a nationally recognized
financial institution then having an Investment Grade Rating for the purpose of
protecting against fluctuations in interest rates.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended.
"Investment" means, (x) with respect to any Person, any acquisition or
investment (whether or not of a controlling interest) by such Person, by means
of any of the following: (a) the purchase or other acquisition of any Equity
Interest in another Person, (b) a loan, advance or extension of credit to,
capital contribution to, Guaranty of Indebtedness of, or purchase or other
acquisition of any Indebtedness of, another Person, including any partnership or
joint venture interest in such other Person, or (c) the purchase or other
acquisition (in one transaction or a series of transactions) of assets of
another Person that constitute the business or a division or operating unit of
another Person and (y) with respect to any Property or other asset, the
acquisition thereof. Any commitment to make an Investment in any other Person,
as well as any option of another Person to require an Investment in such Person,
shall constitute an Investment. Except as expressly provided otherwise, for
purposes of determining compliance with any covenant contained in a Loan
Document, the amount of any Investment shall be the amount actually invested,
without adjustment for subsequent increases or decreases in the value of such
Investment.
"Investment Grade Rating" means a Credit Rating of BBB-/Baa3 (or
equivalent) or higher from the Rating Agencies.
"Lease" means a (sub)lease of a Property, between the Borrower or a
Subsidiary, as Lessor, and a Lessee.
"Lease Abstract" means, as to any Lease for a Senior Housing Asset Pool
or individual Senior Housing Asset not in a Senior Housing Asset Pool, an
abstract of such Lease and Ancillary Agreements in form and substance reasonably
acceptable to the Agent, which shall
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include a reasonably detailed description of the following for such Lease and
Ancillary Agreements: (a) all rent payable under such Lease, including a
description of Base Rent and other components of rent payable under such Lease,
(b) the term (including provisions for extension) of the Lease and any related
Ancillary Agreements, (c) capital expenditure provisions, (d) security deposits
and other similar deposits required to made by the Lessee, (e) the terms of any
Guaranty of such Lease, including without limitation, the identity of the
guarantor(s), any collateral security for the obligations of such guarantor(s)
and any provisions providing for reduction or release of the obligations of such
guarantor(s) thereunder, (f) termination events, (g) the terms of any Ancillary
Agreements for the Senior Housing Asset Pool or Senior Housing Asset subject to
such Lease, (h) a summary of any restrictions on the Lessor's ability to sell,
encumber, pledge, mortgage or otherwise grant Liens upon the Senior Housing
Assets subject to such Lease, (i) restrictions, requirements or other provisions
regarding the brand name, trademark or trade name under which the Lessee may
operate any Senior Housing Asset subject to such Lease, (j) any materials terms
that are unusual in nature or not contained in the majority of the Leases or
Ancillary Agreement for the Unencumbered Senior Housing Assets at such time, (k)
expenses that are expressly subordinate to rent payments, (l) financial
reporting requirements of tenants (including whether tenants are required to be
audited annually), (m) financial covenants applicable to the tenants, (n)
provisions requiring the tenants to comply with applicable licensing
requirements and other health care regulatory requirements and (o) provisions
regarding reporting of the results of reviews or investigations by applicable
regulatory authorities.
"L/C Commitment Amount" equals $50,000,000.
"Lender" means each financial institution from time to time party
hereto as a "Lender", together with its respective successors and permitted
assigns.
"Lending Office" means, for each Lender and for each Type of Loan, the
office of such Lender specified as such on its signature page hereto or in the
applicable Assignment and Acceptance Agreement, or such other office of such
Lender as such Lender may notify the Agent in writing from time to time.
"Lessee" means the (sub)lessee of a Property pursuant to a Lease,
provided that (without the Agent's approval) no such (sub)lessee shall be an
Affiliate of the Borrower (including, without limitation, RMR, or any Managing
Trustee, but, subject to compliance with Section 9.10., excluding Five Star and
any of its Subsidiaries at anytime Five Star or any such Subsidiary is an
Affiliate), except during an interim period for Properties which are foreclosed
upon or repossessed upon lease terminations or otherwise by or on behalf of the
Borrower or a Subsidiary.
"Letter of Credit" has the meaning given that term in Section 2.3.(a).
"Letter of Credit Documents" means, with respect to any Letter of
Credit, collectively, any application therefor, any certificate or other
document presented in connection with a drawing under such Letter of Credit and
any other agreement, instrument or other document
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governing or providing for (a) the rights and obligations of the parties
concerned or at risk with respect to such Letter of Credit or (b) any collateral
security for any of such obligations.
"Letter of Credit Liabilities" means, without duplication, at any time
and in respect of any Letter of Credit, the sum of (a) the Stated Amount of such
Letter of Credit plus (b) the aggregate unpaid principal amount of all
Reimbursement Obligations of the Borrower at such time due and payable in
respect of all drawings made under such Letter of Credit. For purposes of this
Agreement, a Lender (other than the Lender acting as the Agent) shall be deemed
to hold a Letter of Credit Liability in an amount equal to its participation
interest in the related Letter of Credit under Section 2.3.(i), and the Lender
acting as the Agent shall be deemed to hold a Letter of Credit Liability in an
amount equal to its retained interest in the related Letter of Credit after
giving effect to the acquisition by the Lenders other than the Lender acting as
the Agent of their participation interests under such Section.
"LIBOR" means, for any LIBOR Loan for any Interest Period therefor, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not
available, the term "LIBOR" shall mean, for any LIBOR Loan for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on the Reuters Screen LIBO Page as the London
interbank offered rate for deposits in Dollars at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period; provided, however, if more than
one rate is specified on the Reuters Screen LIBO Page, the applicable rate shall
be the arithmetic mean of all such rates.
"LIBOR Loans" means Loans bearing interest at a rate based on LIBOR.
"Lien" as applied to the property of any Person means: (a) any security
interest, encumbrance, mortgage, deed to secure debt, deed of trust, pledge,
lien, charge or lease constituting a Capitalized Lease Obligation, conditional
sale or other title retention agreement, or other security title or encumbrance
of any kind in respect of any property of such Person, or upon the income or
profits therefrom; (b) any arrangement, express or implied, under which any
property of such Person is transferred, sequestered or otherwise identified for
the purpose of subjecting the same to the payment of Indebtedness or performance
of any other obligation in priority to the payment of the general, unsecured
creditors of such Person; (c) the filing of any financing statement under the
Uniform Commercial Code or its equivalent in any jurisdiction, other than a
financing statement filed (i) in respect of a lease not constituting a
Capitalized Lease Obligation pursuant to Section 9-505 (or a successor
provision) of the Uniform Commercial Code as in effect in an applicable
jurisdiction or (ii) in connection with a sale or other disposition of accounts
or other assets in a transaction not otherwise constituting or giving rise to a
Lien; and (d) any agreement by such Person to grant, give or otherwise convey
any of the foregoing.
"Loan" means a Revolving Loan or a Swingline Loan.
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"Loan Document" means this Agreement, each Note, each Letter of Credit
Document, the Guaranty and each other document or instrument now or hereafter
executed and delivered by a Loan Party in connection with, pursuant to or
relating to this Agreement.
"Loan Party" means each of the Borrower and each other Person who
guarantees all or a portion of the Obligations and/or who pledges any collateral
security to secure all or a portion of the Obligations. Schedule 1.1.(d) sets
forth the Loan Parties in addition to the Borrower as of the Agreement Date.
"Managing Trustee" means either Xx. Xxxxx X. Xxxxxxx or Xx. Xxxxxx X.
Xxxxxx, both having a business address c/o RMR, or any duly appointed successor
thereto.
"Mandatorily Redeemable Stock" means, with respect to any Person, any
Equity Interest of such Person which by the terms of such Equity Interest (or by
the terms of any security into which it is convertible or for which it is
exchangeable or exercisable), upon the happening of any event or otherwise (a)
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise (other than an Equity Interest which is redeemable solely in exchange
for common stock or other equivalent common Equity Interests), (b) is
convertible into or exchangeable or exercisable for Indebtedness or Mandatorily
Redeemable Stock, or (c) is redeemable at the option of the holder thereof, in
whole or in part (other than an Equity Interest which is redeemable solely in
exchange for common stock or other equivalent common Equity Interests); in each
case, on or prior to the date on which all Revolving Loans are scheduled to be
due and payable in full.
"Managed Property" means a Senior Housing Asset acquired by the
Borrower or a Subsidiary as a result of, or in connection with, a foreclosure or
repossession (or consensual arrangement in lieu thereof).
"Marketable Securities" means (a) one million common shares of HRPT
Properties Trust owned by the Borrower as of the Agreement Date; (b) bank
deposits and certificates of deposit from a bank rated Baa1/BBB+ or better; (c)
government obligations; and (d) commercial paper rated A1/P1.
"Material Adverse Effect" means a materially adverse effect on (a) the
business, assets, liabilities, financial condition, results of operations or
business prospects of the Borrower and its Subsidiaries taken as a whole, (b)
the ability of the Borrower or any other Loan Party to perform its obligations
under any Loan Document to which it is a party, (c) the validity or
enforceability of any of the Loan Documents, (d) the rights and remedies of the
Lenders and the Agent under any of the Loan Documents or (e) the timely payment
of the principal of or interest on the Loans or other amounts payable in
connection therewith.
"Material Contract" means any contract or other arrangement (other than
Loan Documents), whether written or oral, to which the Borrower, any Subsidiary
or any other Loan Party is a party as to which the breach, nonperformance,
cancellation or failure to renew by any party thereto could reasonably be
expected to have a Material Adverse Effect, and in any event shall include the
Advisory Agreement.
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"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $10,000,000.
"Material Subsidiary" means any Subsidiary to which 2.0% or more of
Total Asset Value is, directly or indirectly, attributable.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Mortgage Note" means a promissory note satisfying all of the following
requirements: (a) such promissory note is owned solely by the Borrower or a
Subsidiary; (b) such promissory note is secured by a Lien on a Senior Housing
Asset or another Property the improvements on which are of a type similar to
improvements located on the Properties as of the Agreement Date; (c) such real
property and related improvements are not subject to any environmental
conditions or other matters which, individually or collectively, materially
impair the value of such real property or related improvements; and (d) if the
Borrower or any Subsidiary were to acquire such real property and related
improvements, no Default or Event of Default would result from such acquisition.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"Negative Pledge" means a provision of any agreement (other than this
Agreement or any other Loan Document) that prohibits or limits the creation or
assumption of any Lien on any assets of a Person or entitles another Person to
obtain or claim the benefit of a Lien on any assets of such Person; provided,
however, that an agreement that establishes a maximum ratio of unsecured debt to
unencumbered assets, or of secured debt to total assets, or that otherwise
conditions a Person's ability to encumber its assets upon the maintenance of one
or more specified ratios that limit such Person's ability to encumber its assets
but that do not generally prohibit the encumbrance of its assets, or the
encumbrance of specific assets or that limits the encumbrance of specific assets
or pools or assets in combination with other assets or pools of assets, shall
not constitute a Negative Pledge for purposes of this Agreement.
"Net Operating Income" or "NOI" means the following (not to be less
than $0 in any case): (a) with respect to a Senior Housing Asset or Senior
Housing Asset Pool, (i) Adjusted EBITDA attributable to such Senior Housing
Asset or Senior Housing Asset Pool (excluding Non-Stabilized Assets), if such
Senior Housing Asset or Senior Housing Asset Pool has an EBITDAR Ratio of 1.00
or more or (ii) the Property NOI of such Senior Housing Asset or Senior Housing
Asset Pool, divided by 1.15, in any other case; (b) with respect to a Mortgage
Note, (i) Adjusted EBITDA attributable to such Mortgage Note if the Senior
Housing Asset or group of Senior Housing Assets securing such Mortgage Note has
an EBITDAR Ratio of 1.00 or more or (ii) the Property NOI of such Senior Housing
Asset or group of Senior Housing Assets
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divided by 1.15 in any other case; and (c) for Non-Stabilized Assets, Adjusted
EBITDA attributable to such Senior Housing Asset, Senior Housing Asset Pool or
Mortgage Note.
"Net Proceeds" means with respect to any Equity Issuance by a Person,
the aggregate amount of all cash and the Fair Market Value of all other property
received by such Person in respect of such Equity Issuance net of investment
banking fees, legal fees, accountants' fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred by such
Person in connection with such Equity Issuance.
"Nonrecourse Indebtedness" means, with respect to a Person,
Indebtedness for borrowed money in respect of which recourse for payment (except
for customary exceptions for fraud, misapplication of funds, environmental
indemnities, and other similar exceptions to recourse liability) is
contractually limited to specific assets of such Person encumbered by a Lien
securing such Indebtedness.
"Non-Stabilized Assets" means any Senior Housing Asset which (a)
although complete and operating, is still in the process of its initial lease-up
and has not achieved an EBITDAR Ratio of 1.15 for any four consecutive fiscal
quarters, or (b) has undergone substantial redevelopment causing a material
portion of such Property to be rendered unusable. Senior Housing Assets will be
classified as Non-Stabilized Assets for a period not to exceed 24 months for
those Senior Housing Assets in (a) and 12 months for those Senior Housing Assets
described in the immediately preceding clause (b).
"Note" means a Revolving Note or a Swingline Note.
"Notice of Borrowing" means a notice in the form of Exhibit C to be
delivered to the Agent pursuant to Section 2.1.(b) evidencing the Borrower's
request for a borrowing of Revolving Loans.
"Notice of Continuation" means a notice in the form of Exhibit D to be
delivered to the Agent pursuant to Section 2.8. evidencing the Borrower's
request for the Continuation of a LIBOR Loan.
"Notice of Conversion" means a notice in the form of Exhibit E to be
delivered to the Agent pursuant to Section 2.9. evidencing the Borrower's
request for the Conversion of a Loan from one Type to another Type.
"Notice of Swingline Borrowing" means a notice in the form of Exhibit F
to be delivered to the Agent pursuant to Section 2.2. evidencing the Borrower's
request for a borrowing of Swingline Loans.
"Obligations" means, individually and collectively: (a) the aggregate
principal balance of, and all accrued and unpaid interest on, all Loans; (b) all
Reimbursement Obligations and all other Letter of Credit Liabilities; and (c)
all other indebtedness, liabilities, obligations, covenants and duties of the
Borrower and the other Loan Parties owing to the Agent, the Swingline Lender or
any Lender of every kind, nature and description, under or in respect of this
Agreement or any
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of the other Loan Documents, including, without limitation, the Fees and
indemnification obligations, whether direct or indirect, absolute or contingent,
due or not due, contractual or tortious, liquidated or unliquidated, and whether
or not evidenced by any promissory note.
"Participant" has the meaning given that term in Section 12.5.(c).
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
agency.
"Permitted Liens" means, as to any Person: (a) Liens securing taxes,
assessments and other charges or levies imposed by any Governmental Authority
(excluding any Lien imposed pursuant to any of the provisions of ERISA) or the
claims of materialmen, mechanics, carriers, warehousemen or landlords for labor,
materials, supplies or rentals incurred in the ordinary course of business,
which (i) are not at the time required to be paid or discharged under Section
7.6., or (ii) if such Lien is the responsibility of a financially responsible
tenant, mortgagor or manager to discharge, or (iii) in the case of a Senior
Housing Asset or Senior Housing Asset Pool, when considered in the aggregate
with all other Liens on such Senior Housing Asset (or Senior Housing Asset Pool)
does not materially detract from (A) if the Senior Housing Asset subject to such
Lien is part of a Senior Housing Asset Pool, the value of such Senior Housing
Asset Pool, or (B) if the Senior Housing Asset subject to such Lien is not part
of a Senior Housing Asset Pool, the value of such Senior Housing Asset; (b)
Liens consisting of deposits or pledges made, in the ordinary course of
business, in connection with, or to secure payment of, obligations under
workers' compensation, unemployment insurance or similar Applicable Laws; (c)
Liens consisting of encumbrances in the nature of zoning restrictions,
easements, and rights or restrictions of record on the use of real property,
which do not materially detract from the value of such property or impair the
use thereof in the business of such Person; (d) Liens in existence as of the
Agreement Date and set forth in Part II of Schedule 6.1.(f); (e) deposits to
secure trade contracts (other than for Indebtedness), statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business; (f) the lessor's interest in
property leased to the Borrower or any of its Subsidiaries pursuant to a lease
permitted by this Agreement; (g) the interests of tenants, operators or managers
of Properties; (h) Liens in favor of the Agent for the benefit of the Lenders;
(i) Liens required under Applicable Law, or by any Governmental Authority, as a
condition to ownership or operation of Senior Housing Assets; and (j) Liens
which are also secured by restricted cash or Cash Equivalents of equal or
greater value.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or unincorporated organization, or a
government or any agency or political subdivision thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (a) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (b) has at any time within the
preceding five years been maintained, or contributed to, by any Person which was
at such time a member of the ERISA Group for employees of any Person which was
at such time a member of the ERISA Group.
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"Post-Default Rate" means, in respect of any principal of any Loan or
any other Obligation that is not paid when due (whether at stated maturity, by
acceleration, by optional or mandatory prepayment or otherwise), a rate per
annum equal to four percent (4.0%) plus the Base Rate as in effect from time to
time.
"Preferred Dividends" means, for any given period and without
duplication, all Restricted Payments accrued or paid (and in the case of
Restricted Payments paid, which were not accrued during a prior period) during
such period on Preferred Stock issued by the Borrower or a Subsidiary. Preferred
Dividends shall not include dividends or distributions paid or payable (a)
solely in Equity Interests (other than Mandatorily Redeemable Stock) payable to
holders of such class of Equity Interests; (b) to the Borrower or a Subsidiary;
or (c) constituting or resulting in the redemption of Preferred Stock, other
than scheduled redemptions not constituting balloon, bullet or similar
redemptions in full. Payments made with respect to the existing Trust Preferred
Securities will be considered Preferred Dividends.
"Preferred Stock" means, with respect to any Person, Equity Interests
in such Person which are entitled to preference or priority over any other
Equity Interest in such Person in respect of the payment of dividends or
distribution of assets upon liquidation or both, including the existing Trust
Preferred Securities.
"Prime Rate" means the rate of interest per annum announced publicly by
the Lender acting as the Agent as its prime rate from time to time. The Prime
Rate is not necessarily the best or the lowest rate of interest offered by the
Lender acting as the Agent or any other Lender.
"Principal Office" means the office of the Agent located at One
Wachovia Center, Charlotte, North Carolina, or such other office of the Agent as
the Agent may designate from time to time.
"Property" means any parcel of real property and related personal
property, either owned in fee simple or leased pursuant to a Ground Lease by the
Borrower or any consolidated Subsidiary. With respect to a Mortgage Note or
other promissory note secured by real property, the term Property means each
parcel of real property, and related personal property, securing such Mortgage
Note or other promissory note.
"Property Net Operating Income" or "Property NOI" means, with respect
to a Property and for the four most recently ended fiscal quarters, the sum of
the following (without duplication): (a) all revenues received in the ordinary
course of operating such Property (including proceeds of rent loss insurance but
excluding pre-paid rents and revenues and security deposits except to the extent
applied in satisfaction of tenants' obligations for rent) minus (b) all expenses
(whether paid or accrued) related to the operation or maintenance of such
Property, including but not limited to payroll expenses, taxes, assessments and
other similar charges, insurance, utilities, maintenance, repair and landscaping
expenses, other than expenses (if any) subordinated to the rental or mortgage
payment receivable by the Borrower or a Subsidiary (according to the lease or
mortgage documents for that Property). All amounts due to the
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Borrower or any Guarantor, whether as rent or mortgage payments in respect of
such Property, will be excluded from the calculation of (b) above.
"Rating Agencies" means S&P and Moody's. If either such corporation
ceases to act as a securities rating agency or ceases to provide ratings with
respect to the senior long-term unsecured debt obligations of the Borrower, then
the Borrower may designate as a replacement Fitch or any other nationally
recognized securities rating agency acceptable to the Agent.
"Register" has the meaning given that term in Section 12.5.(e).
"Regulatory Change" means, with respect to any Lender, any change
effective after the Agreement Date in Applicable Law (including without
limitation, Regulation D of the Board of Governors of the Federal Reserve
System) or the adoption or making after such date of any interpretation,
directive or request applying to a class of banks, including such Lender, of or
under any Applicable Law (whether or not having the force of law and whether or
not failure to comply therewith would be unlawful) by any Governmental Authority
or monetary authority charged with the interpretation or administration thereof
or compliance by any Lender with any request or directive regarding capital
adequacy.
"Reimbursement Obligation" means the absolute, unconditional and
irrevocable obligation of the Borrower to reimburse the Agent for any drawing
honored by the Agent under a Letter of Credit.
"REIT" means a Person qualifying for treatment as a "real estate
investment trust" under the Internal Revenue Code.
"RMR" means REIT Management & Research LLC, together with its
successors and permitted assigns.
"Requisite Lenders" means, as of any date, Lenders having at least
66-2/3% of the aggregate amount of the Commitments (excluding Defaulting Lenders
who, accordingly, are not entitled to vote), or, if the Commitments have been
terminated or reduced to zero, Lenders holding at least 66-2/3% of the principal
amount of the Loans and Letter of Credit Liabilities (excluding Defaulting
Lenders who, accordingly, are not entitled to vote).
"Responsible Officer" means (a) with respect to the Borrower, the
Borrower's President or Treasurer or any Managing Trustee of the Borrower and
(b) with respect to any other Loan Party, such Loan Party's chief executive
officer or chief financial officer.
"Restricted Payment" means (a) any dividend or other distribution,
direct or indirect, on account of any Equity Interest of the Borrower or any of
its Subsidiaries now or hereafter outstanding, except a dividend payable solely
in Equity Interests of identical class to the holders of that class; (b) any
redemption, conversion, exchange, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of any Equity
Interest of the Borrower or any of its Subsidiaries now or hereafter
outstanding; and (c) any payment made to
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retire, or to obtain the surrender of, any outstanding warrants, options or
other rights to acquire any Equity Interests of the Borrower or any of its
Subsidiaries now or hereafter outstanding.
"Revolving Loan" means a loan made by a Lender to the Borrower pursuant
to Section 2.1.(a).
"Revolving Note" has the meaning given that term in Section 2.10.(a).
"Secured Indebtedness" means, with respect to a Person as of any given
date, the aggregate principal amount of all Indebtedness of such Person
outstanding at such date and that is secured in any manner by any Lien, and in
the case of the Borrower and the Guarantors, shall include (without duplication)
the Borrower's pro rata share of the Secured Indebtedness of its Unconsolidated
Affiliates.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, together with all rules and regulations issued thereunder.
"Senior Housing Asset" means any Property on which the improvements
consist only of one or more of the following: (a) senior residences, (b)
independent living facilities, (c) congregate communities, (d) assisted living
facilities, (e) nursing homes, (f) hospitals and (g) other Property primarily
used for senior citizen residences or health care services, together with other
improvements incidental thereto.
"Senior Housing Asset Pool" means any group of two or more Properties,
substantially all of the value of which is attributable to Senior Housing
Assets, that are (a) leased to a Lessee pursuant to a single Lease, (b) leased
pursuant to Leases that are cross-defaulted (as to defaults by Lessee) and which
the Borrower has designated in a notice to the Agent (which designation has not
been withdrawn by the Borrower) to be a Senior Housing Asset Pool, or (c)
Managed Properties managed under one management agreement (or multiple
management agreements with the same or affiliated managers that are
cross-defaulted) and which the Borrower has designated in a notice to the Agent
(which designation has not been withdrawn by the Borrower) to be a Senior
Housing Asset Pool.
"Solvent" means, when used with respect to any Person, that (a) the
fair value and the fair salable value of its assets (excluding any Indebtedness
due from any affiliate of such Person) are each in excess of the fair valuation
of its total liabilities (including all contingent liabilities computed at the
amount which, in light of all the facts and circumstances existing at such time,
represents the amount that could reasonably be expected to become an actual and
matured liability); (b) such Person is able to pay its debts or other
obligations in the ordinary course as they mature; and (c) such Person has
capital not unreasonably small to carry on its business and all business in
which it proposes to be engaged.
"S&P" means Standard & Poor's Rating Services, a division of The
XxXxxx-Xxxx Companies, Inc. and its successors.
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"Stated Amount" means the amount available to be drawn by a beneficiary
under a Letter of Credit from time to time, as such amount may be increased or
reduced from time to time in accordance with the terms of such Letter of Credit.
"Subsidiary" means, for any Person, any corporation, partnership or
other entity of which at least a majority of the securities or other ownership
interests having by the terms thereof ordinary voting power to elect a majority
of the board of directors or other persons performing similar functions of such
corporation, partnership or other entity (without regard to the occurrence of
any contingency) is at the time directly or indirectly owned or controlled by
such Person or one or more Subsidiaries of such Person or by such Person and one
or more Subsidiaries of such Person, and shall include all Persons the accounts
of which consolidated with those of such Person pursuant to GAAP.
"Supermajority Lenders" means, as of any date, Lenders having at least
75% of the aggregate amount of the Commitments (excluding Defaulting Lenders
who, accordingly, are not entitled to vote), or, if the Commitments have been
terminated or reduced to zero, Lenders holding at least 75% of the principal
amount of the Loans and Letter of Credit Liabilities (excluding Defaulting
Lenders who, accordingly, are not entitled to vote).
"Swingline Commitment" means the Swingline Lender's obligation to make
Swingline Loans pursuant to Section 2.2. in an amount up to, but not exceeding,
$25,000,000, as such amount may be reduced from time to time in accordance with
the terms hereof.
"Swingline Lender" means Wachovia Bank, National Association, together
with its respective successors and assigns.
"Swingline Loan" means a loan made by the Swingline Lender to the
Borrower pursuant to Section 2.2.(a).
"Swingline Note" means the promissory note of the Borrower payable to
the order of the Swingline Lender in a principal amount equal to the amount of
the Swingline Commitment as originally in effect and otherwise duly completed,
substantially in the form of Exhibit G.
"Tangible Net Worth" means, as of any given time: (a) the book value
(exclusive of depreciation) of all real estate assets of the Borrower and its
Subsidiaries that constitute Properties at such time; plus (b) the book value of
other assets (excluding any assets described in the immediately preceding clause
(a)) of the Borrower and its Subsidiaries; less (c) all amounts appearing on the
assets side of a consolidated balance sheet of the Borrower for assets
separately classified as intangible assets under GAAP; less (d) all Total
Indebtedness of the Borrower and its Subsidiaries determined on a consolidated
basis.
"Taxes" has the meaning given that term in Section 3.12.
"Termination Date" means November 30, 2005.
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"Titled Agent" means any of the Joint Lead Arrangers, the Sole Book
Runner, the Syndication Agent or the Documentation Agents, and their respective
successors and permitted assigns.
"Total Asset Value" means the sum of the following (without
duplication) of the Borrower and its Subsidiaries for the fiscal quarter most
recently ended: (a) with respect to all Properties owned (or leased pursuant to
a Ground Lease) by the Borrower or any Subsidiary for such entire fiscal
quarter, (i) Adjusted EBITDA attributable to such Properties for such period
multiplied by (ii) 4 divided by (iii) the Capitalization Rate; (b) the purchase
price paid for any Property acquired during such fiscal quarter (less any
amounts paid as a purchase price adjustment, held in escrow, retained as a
contingency reserve, or other similar arrangements); (c) all Marketable
Securities, cash and cash equivalents; (d) the book value of all Assets Under
Development as of the end of such fiscal quarter; (e) the book value of all
Mortgage Notes, and all other promissory notes secured by a Lien on any
Property, as of the end of such fiscal quarter; and (f) the Borrower's pro rata
share of the preceding items of any Unconsolidated Affiliate of the Borrower.
"Total Indebtedness" means, as of a given date, all liabilities of the
Borrower and its Subsidiaries which would, in conformity with GAAP, be properly
classified as a liability on a consolidated balance sheet of the Borrower and
its Subsidiaries as of such date, and in any event shall include (without
duplication): (a) all Indebtedness of the Borrower and its Subsidiaries and (b)
the Borrower's pro rata share of Indebtedness of its Unconsolidated Affiliates.
"Trust Preferred Securities" means the 1,095,750 shares of 10.125%
trust preferred securities having a liquidation preference of $25 per share,
issued by SNH Capital Trust I, a Subsidiary of the Borrower, the proceeds of
which were used by such Subsidiary to acquire the Borrower's 10.125% junior
subordinated debentures due June 15, 2041.
"Type" with respect to any Loan, refers to whether such Loan is a LIBOR
Loan or Base Rate Loan.
"Unconsolidated Affiliate" means, with respect to any Person, any other
Person in whom such Person holds an Investment, which Investment is accounted
for in the financial statements of such Person on an equity basis of accounting
and whose financial results would not be consolidated under GAAP with the
financial results of such Person on the consolidated financial statements of
such Person.
"Unencumbered Asset Value" means, as of the end of a fiscal quarter,
the sum of: (a) unrestricted cash and Cash Equivalents and unencumbered
Marketable Securities of the Borrower and its Subsidiaries; (b) the product of
(i) Net Operating Income for the fiscal quarter most recently ended attributable
to Unencumbered Senior Housing Assets owned or leased by the Borrower or any
Subsidiary for such period, multiplied by (ii) 4 and divided by (iii) the
Capitalization Rate; (c) the purchase price paid for any Unencumbered Senior
Housing Asset acquired during such four fiscal quarter period (less any amounts
paid as a purchase price adjustment, held in escrow, retained as a contingency
reserve, or other similar arrangements); and (d) the book value of all
Unencumbered Mortgage Notes (excluding any Unencumbered
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Mortgage Note where the obligor is more than 60 days past due with respect to
any payment obligation). To the extent that the sum of the book value of
Unencumbered Mortgage Notes would, in the aggregate, account for more than 15.0%
of Unencumbered Asset Value, such excess shall be excluded. In addition, to the
extent that the value attributable to Senior Housing Assets leased pursuant to a
Ground Lease constitutes more than 20.0% of the Unencumbered Asset Value, such
excess shall be excluded. If an Unencumbered Senior Housing Asset or
Unencumbered Mortgage Note is not owned as of the last day of such fiscal
quarter then such asset shall be excluded from the foregoing calculations.
"Unencumbered Mortgage Note" means a Mortgage Note satisfying all of
the following requirements: (a) such Mortgage Note is owned directly by the
Borrower or a Guarantor; (b) neither such Mortgage Note, nor any interest of the
Borrower or such Guarantor therein, is subject to any Lien (other than Permitted
Liens of the types described in clauses (a) through (d) and (f) through (j) of
the definition thereof or Liens in favor of the Borrower or a Guarantor) or to
any Negative Pledge; (c) if such Mortgage Note is owned by a Subsidiary, (i)
none of the Borrower's direct or indirect ownership interest in such Subsidiary
is subject to any Lien (other than Permitted Liens of the types described in
clauses (a) through (d) and (f) through (j) of the definition thereof) or Liens
in favor of the Borrower or a Guarantor) or to any Negative Pledge and (ii) the
Borrower directly, or indirectly through a Subsidiary, has the right to sell,
transfer or otherwise dispose of such Mortgage Note without the need to obtain
the consent of any Person; (d) no Senior Housing Asset (nor any related
improvements) securing such Mortgage Note is subject to any Lien (other than the
Lien securing such Mortgage Note, Permitted Liens of the types described in
clauses (a) through (d) and (f) through (j) of the definition thereof,
subordinate Liens, and Liens in favor of the Borrower or Guarantor); (e) each
Senior Housing Asset securing such Mortgage Note is located in a state of the
United States, the District of Columbia or Puerto Rico; and (f) such Mortgage
Note (i) has been designated by the Borrower as an "Unencumbered Mortgage Note"
on Schedule 6.1.(y) or on an Unencumbered Senior Housing Asset Certificate
delivered by the Borrower to the Agent pursuant to Section 8.3. or 8.4.(o), and
(ii) has not been removed by the Borrower from "Unencumbered Mortgage Notes"
pursuant to Section 8.4.(p).
"Unencumbered NOI" means, for any given period, (a) the aggregate NOI
attributable to Unencumbered Senior Housing Assets (net of the NOI attributable
to the Acquired Encumbered Properties) for such period plus (b) NOI with respect
to Unencumbered Mortgage Notes for such period (excluding any Unencumbered
Mortgage Note where the obligor is more than 60 days past due with respect to
any payment obligation).
"Unencumbered Senior Housing Asset" means each Senior Housing Asset
that satisfies all of the following requirements: (a) such Senior Housing Asset
is (i) owned in fee simple solely by the Borrower or a Guarantor or (ii) leased
solely by the Borrower or a Guarantor pursuant to a Ground Lease; (b) such
Senior Housing Asset is not an Asset Under Development and is in service; (c)
neither such Senior Housing Asset, nor any interest of the Borrower or such
Guarantor therein, is subject to any Lien (other than Permitted Liens of the
types described in clauses (a) through (d) and (f) through (j) of the definition
thereof or Liens in favor of the Borrower or a Guarantor) or to any Negative
Pledge; (d) if such Senior Housing Asset is owned by a Subsidiary, (i) none of
the Borrower's direct or indirect ownership interest in such
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Subsidiary is subject to any Lien (other than Permitted Liens of the types
described in clauses (a) through (d) and (f) through (j) of the definition
thereof or Liens in favor of the Borrower or a Guarantor) or to any Negative
Pledge and (ii) the Borrower directly, or indirectly through a Subsidiary, has
the right, without the need to obtain the consent of any Person, to (x) sell,
transfer or otherwise dispose of such Senior Housing Asset and (y) to create
Liens on such Senior Housing Asset as security for Indebtedness of the Borrower
or such Subsidiary, as applicable; (e) such Senior Housing Asset is free of all
structural defects or major architectural deficiencies, title defects,
environmental conditions or other adverse matters which, individually or
collectively, materially impair the value of such Senior Housing Asset; (f) such
Senior Housing Asset is located in a state of the United States, the District of
Columbia or Puerto Rico; (g) the Lessee is not more than 60 days past due with
respect to any payment obligations under any Lease for such Senior Housing
Asset; and (h) such Senior Housing Asset (x) has been designated by the Borrower
as an "Unencumbered Senior Housing Asset" on Schedule 6.1.(y) or on an
Unencumbered Senior Housing Asset Certificate delivered by the Borrower to the
Agent pursuant to Section 8.3. or 8.4.(o), and (y) has not been removed
voluntarily by the Borrower from "Unencumbered Senior Housing Assets" pursuant
to Section 8.4.(p). In addition, a Senior Housing Asset Pool or the portion
thereof comprised of Senior Housing Assets which are individually Unencumbered
Senior Housing Assets shall constitute an Unencumbered Senior Housing Asset for
purposes of this Agreement. For purposes of this definition, the Liens granted
pursuant to the Acquired Property Lien Documents will not result in the
exclusion of the 31 Senior Housing Assets in the Senior Housing Asset Pool
leased to Five Star as an Unencumbered Senior Housing Asset under the
immediately preceding clause (c) so long as such Liens encumber only the
Acquired Encumbered Properties, and the value of such Unencumbered Senior
Housing Asset shall be determined net of the value attributable to the Acquired
Encumbered Properties.
"Unencumbered Senior Housing Asset Certificate" has the meaning given
that term in Section 8.3.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (a) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (b) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"Unsecured Debt Service" means, for a given period, Debt Service for
such period with respect to Unsecured Indebtedness of the Borrower and its
Subsidiaries.
"Unsecured Indebtedness" means, with respect to a Person as of any
given date, the aggregate principal amount of all Indebtedness of such Person
outstanding at such date that is not Secured Indebtedness (excluding
Indebtedness associated with Unconsolidated Affiliates that is not Guaranteed by
a Loan Party) and in the case of the Borrower shall include (without
duplication) Indebtedness that does not constitute Secured Indebtedness.
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"Wachovia" means Wachovia Bank, National Association, together with its
successors and assigns.
"Wholly Owned Subsidiary" means any Subsidiary of a Person in respect
of which all of the equity securities or other ownership interests (other than,
in the case of a corporation, directors' qualifying shares) are at the time
directly or indirectly owned or controlled by such Person or one or more other
Subsidiaries of such Person or by such Person and one or more other Subsidiaries
of such Person.
Section 1.2. General; References to Times.
Unless otherwise indicated, all accounting terms, ratios and
measurements shall be interpreted or determined in accordance with GAAP in
effect as of the Agreement Date. References in this Agreement to "Sections",
"Articles", "Exhibits" and "Schedules" are to sections, articles, exhibits and
schedules herein and hereto unless otherwise indicated. references in this
Agreement to any document, instrument or agreement (a) shall include all
exhibits, schedules and other attachments thereto, (b) shall include all
documents, instruments or agreements issued or executed in replacement thereof,
to the extent permitted hereby and (c) shall mean such document, instrument or
agreement, or replacement or predecessor thereto, as amended, supplemented,
restated or otherwise modified as of the date of this Agreement and from time to
time thereafter to the extent not prohibited hereby and in effect at any given
time. Wherever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and plural, and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, the feminine and the neuter. Unless explicitly set forth to the
contrary, a reference to "Subsidiary" means a Subsidiary of the Borrower or a
Subsidiary of such Subsidiary and a reference to an "Affiliate" means a
reference to an Affiliate of the Borrower. Titles and captions of Articles,
Sections, subsections and clauses in this Agreement are for convenience only,
and neither limit nor amplify the provisions of this Agreement. Unless otherwise
indicated, all references to time are references to Charlotte, North Carolina
time.
ARTICLE II. CREDIT FACILITY
Section 2.1. Revolving Loans.
(a) Generally. Subject to the terms and conditions hereof, during the
period from the Effective Date to but excluding the Termination Date, each
Lender severally and not jointly agrees to make Revolving Loans to the Borrower
in an aggregate principal amount at any one time outstanding up to, but not
exceeding, the amount of such Lender's Commitment. Subject to the terms and
conditions of this Agreement, during the period from the Effective Date to but
excluding the Termination Date, the Borrower may borrow, repay and reborrow
Revolving Loans hereunder.
(b) Requesting Revolving Loans. The Borrower shall give the Agent
notice pursuant to a Notice of Borrowing or telephonic notice of each borrowing
of Revolving Loans. Each Notice of Borrowing shall be delivered to the Agent
before 11:00 a.m. (i) in the case of LIBOR Loans, on the date three Business
Days prior to the proposed date of such borrowing and (ii) in
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the case of Base Rate Loans, on the date one Business Day prior to the proposed
date of such borrowing. Any such telephonic notice shall include all information
to be specified in a written Notice of Borrowing and shall be promptly confirmed
in writing by the Borrower pursuant to a Notice of Borrowing sent to the Agent
by telecopy on the same day of the giving of such telephonic notice. The Agent
will transmit by telecopy the Notice of Borrowing (or the information contained
in such Notice of Borrowing) or the information contained in a telephonic notice
of borrowing (if such telephonic notice is received prior to a Notice of
Borrowing) to each Lender promptly upon receipt by the Agent. Each Notice of
Borrowing or telephonic notice of each borrowing shall be irrevocable once given
and binding on the Borrower.
(c) Disbursements of Revolving Loan Proceeds. No later than 1:00 p.m.
on the date specified in the Notice of Borrowing, each Lender will make
available for the account of its applicable Lending Office to the Agent at the
Principal Office, in immediately available funds, the proceeds of the Revolving
Loan to be made by such Lender. With respect to Revolving Loans to be made after
the Effective Date, unless the Agent shall have been notified by any Lender
prior to the specified date of borrowing that such Lender does not intend to
make available to the Agent the Revolving Loan to be made by such Lender on such
date, the Agent may assume that such Lender will make the proceeds of such
Revolving Loan available to the Agent on the date of the requested borrowing as
set forth in the Notice of Borrowing and the Agent may (but shall not be
obligated to), in reliance upon such assumption, make available to the Borrower
the amount of such Revolving Loan to be provided by such Lender. Subject to
satisfaction of the applicable conditions set forth in Article V. for such
borrowing, the Agent will make the proceeds of such borrowing available to the
Borrower no later than 2:00 p.m. on the date and at the account specified by the
Borrower in such Notice of Borrowing.
Section 2.2. Swingline Loans.
(a) Swing Line Loans. Subject to the terms and conditions hereof,
during the period from the Effective Date to but excluding the Termination Date,
the Swingline Lender agrees to make Swingline Loans to the Borrower in an
aggregate principal amount at any one time outstanding up to, but not exceeding,
the amount of the Swingline Commitment. If at any time the aggregate principal
amount of the Swingline Loans outstanding at such time exceeds the Swingline
Commitment in effect at such time, the Borrower shall immediately pay the Agent
for the account of the Swingline Lender the amount of such excess. Subject to
the terms and conditions of this Agreement, the Borrower may borrow, repay and
reborrow Swingline Loans hereunder.
(b) Procedure for Borrowing Swingline Loans. The Borrower shall give
the Agent and the Swingline Lender notice pursuant to a Notice of Swingline
Borrowing or telephonic notice of each borrowing of a Swingline Loan. Each
Notice of Swingline Borrowing shall be delivered to the Swingline Lender no
later than 3:00 p.m. on the proposed date of such borrowing. Any such telephonic
notice shall include all information to be specified in a written Notice of
Swingline Borrowing and shall be promptly confirmed in writing by the Borrower
pursuant to a Notice of Swingline Borrowing sent to the Swingline Lender by
telecopy on the same day of the giving of such telephonic notice. On the date of
the requested Swingline Loan and subject to satisfaction of the applicable
conditions set forth in Article V. for such borrowing, the Swingline Lender will
make the proceeds of such Swingline Loan available to the Borrower
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in Dollars, in immediately available funds, at the account specified by the
Borrower in the Notice of Swingline Borrowing not later than 11:00 a.m. on such
date if the Swingline Lender received such Notice of Swingline Borrowing by 9:00
a.m. on such date, and otherwise not later than 4:00 p.m. on such date.
(c) Interest. Swingline Loans shall bear interest at a per annum rate
equal to the Base Rate plus the Applicable Margin for Base Rate Loans (or at
such other rate or rates as the Borrower and the Swingline Lender may agree from
time to time in writing). Interest payable on Swingline Loans is solely for the
account of the Swingline Lender. All accrued and unpaid interest on Swingline
Loans shall be payable on the dates and in the manner provided in Section 2.4.
with respect to interest on Base Rate Loans (except as the Swingline Lender and
the Borrower may otherwise agree in writing in connection with any particular
Swingline Loan).
(d) Swingline Loan Amounts, Etc. Each Swingline Loan shall be in the
minimum amount of $1,000,000 and integral multiples of $500,000 or such other
minimum amounts agreed to by the Swingline Lender and the Borrower. Any
voluntary prepayment of a Swingline Loan must be in integral multiples of
$100,000 or the aggregate principal amount of all outstanding Swingline Loans
(or such other minimum amounts upon which the Swingline Lender and the Borrower
may agree) and in connection with any such prepayment, the Borrower must give
the Swingline Lender prior written notice thereof no later than 10:00 a.m. on
the date of such prepayment. The Swingline Loans shall, in addition to this
Agreement, be evidenced by the Swingline Note.
(e) Repayment and Participations of Swingline Loans. The Borrower
agrees to repay each Swingline Loan within one Business Day of demand therefor
by the Swingline Lender and in any event, within 5 Business Days after the date
such Swingline Loan was made. Notwithstanding the foregoing, the Borrower shall
repay the entire outstanding principal amount of, and all accrued but unpaid
interest on, the Swingline Loans on the Termination Date (or such earlier date
as the Swingline Lender and the Borrower may agree in writing). If the Agent has
neither (x) received a Notice of Borrowing indicating that such Swingline Loan
is to be repaid with the proceeds thereof nor (y) received notice from the
Borrower that it intends to repay such Swingline Loan on a specified date and,
in the case of this clause (y) only, such Swingline Loan is not repaid by 11:30
a.m. on such date, the Swingline Lender may, on behalf of the Borrower (which
hereby irrevocably directs the Swingline Lender to act on its behalf), request a
borrowing of Revolving Loans (which shall be Base Rate Loans) from the Lenders
in an amount equal to the principal balance of such Swingline Loan. The
limitations of Section 3.5.(a) shall not apply to any borrowing of Base Rate
Loans made pursuant to this subsection. The Swingline Lender shall give notice
to the Agent of any such borrowing of Base Rate Loans not later than 12:00 noon
on the proposed date of such borrowing, and the Agent shall promptly give notice
to the Lenders of any such borrowing of Base Rate Loans. No later than 2:00 p.m.
on such date, each Lender will make available to the Agent at the Principal
Office for the account of Swingline Lender, in immediately available funds, the
proceeds of the Base Rate Loan to be made by such Lender. The Agent shall pay
the proceeds of such Base Rate Loans to the Swingline Lender, which shall apply
such proceeds to repay such Swingline Loan. If the Lenders are prohibited from
making Loans required to be made under this subsection for any reason, including
without limitation, the occurrence of any of the Events of Default described in
Sections 10.1.(f) or
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10.1.(g), each Lender shall purchase from the Swingline Lender, without recourse
or warranty, an undivided interest and participation to the extent of such
Lender's Commitment Percentage of such Swingline Loan, by directly purchasing a
participation in such Swingline Loan in such amount (regardless of whether the
conditions precedent thereto set forth in Section 5.2. are then satisfied,
whether or not the Borrower has submitted a Notice of Borrowing and whether or
not the Commitments are then in effect, any Event of Default exists or all the
Loans have been accelerated) and paying the proceeds thereof to the Agent for
the account of the Swingline Lender in Dollars and in immediately available
funds. If such amount is not in fact made available to the Swingline Lender by
any Lender, the Swingline Lender shall be entitled to recover such amount on
demand from such Lender, together with accrued interest thereon for each day
from the date of demand thereof, at the Federal Funds Rate. If such Lender does
not pay such amount forthwith upon the Swingline Lender's demand therefor, and
until such time as such Lender makes the required payment, the Swingline Lender
shall be deemed to continue to have outstanding Swingline Loans in the amount of
such unpaid participation obligation for all purposes of the Loan Documents
(other than those provisions requiring the other Lenders to purchase a
participation therein). Further, such Lender shall be deemed to have assigned
any and all payments made of principal and interest on its Loans, and any other
amounts due to it hereunder, to the Swingline Lender to fund Swingline Loans in
the amount of the participation in Swingline Loans that such Lender failed to
purchase pursuant to this Section until such amount has been purchased (as a
result of such assignment or otherwise). A Lender's obligation to purchase such
a participation in a Swingline Loan shall be absolute and unconditional and
shall not be affected by any circumstance whatsoever, including without
limitation, (i) any claim of setoff, counterclaim, recoupment, defense or other
right which such Lender or any other Person may have or claim against the Agent,
the Swingline Lender or any other Person whatsoever, (ii) the occurrence or
continuation of a Default or Event of Default (including without limitation, any
of the Defaults or Events of Default described in Sections 10.1.(f) or 10.1.(g))
or the termination of any Lender's Commitment, (iii) the existence (or alleged
existence) of an event or condition which has had or could have a Material
Adverse Effect, (iv) any breach of any Loan Document by the Agent, any Lender or
the Borrower or (v) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
Section 2.3. Letters of Credit.
(a) Letters of Credit. Subject to the terms and conditions of this
Agreement, the Agent, on behalf of the Lenders, agrees to issue for the account
of the Borrower during the period from and including the Effective Date to, but
excluding, the date 30 days prior to the Termination Date one or more letters of
credit (each a "Letter of Credit") up to a maximum aggregate Stated Amount at
any one time outstanding not to exceed the L/C Commitment Amount.
(b) Terms of Letters of Credit. At the time of issuance, the amount,
form, terms and conditions of each Letter of Credit, and of any drafts or
acceptances thereunder, shall be subject to approval by the Agent and the
Borrower. Notwithstanding the foregoing, in no event may the expiration date of
any Letter of Credit extend beyond the earlier of (i) the date one year from its
date of issuance or (ii) the Termination Date.
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(c) Requests for Issuance of Letters of Credit. The Borrower shall give
the Agent written notice (or telephonic notice promptly confirmed in writing) at
least 5 Business Days prior to the requested date of issuance of a Letter of
Credit, such notice to describe in reasonable detail the proposed terms of such
Letter of Credit and the nature of the transactions or obligations proposed to
be supported by such Letter of Credit, and in any event shall set forth with
respect to such Letter of Credit (i) the proposed initial Stated Amount, (ii)
the beneficiary or beneficiaries, and (iii) the proposed expiration date. The
Borrower shall also execute and deliver such customary letter of credit
application forms as requested from time to time by the Agent. Provided the
Borrower has given the notice prescribed by the first sentence of this
subsection and subject to Section 2.13. and the other terms and conditions of
this Agreement, including, without limitation, the satisfaction of any
applicable conditions precedent set forth in Article V., the Agent shall issue
the requested Letter of Credit on the requested date of issuance for the benefit
of the stipulated beneficiary and will notify each Lender of the issuance of
such Letter of Credit within a reasonable time after the issuance thereof. Upon
the written request of the Borrower, the Agent shall deliver to the Borrower a
copy of each issued Letter of Credit within a reasonable time after the date of
issuance thereof. To the extent any term of a Letter of Credit Document is
inconsistent with a term of any Loan Document, the term of such Loan Document
shall control.
(d) Reimbursement Obligations. Upon receipt by the Agent from the
beneficiary of a Letter of Credit of any demand for payment under such Letter of
Credit, the Agent shall promptly notify the Borrower of the amount to be paid by
the Agent as a result of such demand and the date on which payment is to be made
by the Agent to such beneficiary in respect of such demand; provided, however,
the Agent's failure to give, or delay in giving, such notice shall not discharge
the Borrower in any respect from the applicable Reimbursement Obligation. The
Borrower hereby unconditionally and irrevocably agrees to pay and reimburse the
Agent for the amount of each demand for payment under such Letter of Credit on
or prior to the date on which payment is to be made by the Agent to the
beneficiary thereunder, without presentment, demand, protest or other
formalities of any kind. Upon receipt by the Agent of any payment in respect of
any Reimbursement Obligation, the Agent shall promptly pay to each Lender that
has acquired a participation therein under the second sentence of Section
2.3.(i) such Lender's Commitment Percentage of such payment.
(e) Manner of Reimbursement. Upon its receipt of a notice referred to
in the immediately preceding subsection (d), the Borrower shall advise the Agent
whether or not the Borrower intends to borrow hereunder to finance its
obligation to reimburse the Agent for the amount of the related demand for
payment. If the Borrower fails to so advise the Agent, or if the Borrower fails
to reimburse the Agent for a demand for payment under a Letter of Credit by the
date of such payment, then (i) if the applicable conditions contained in Article
V. would permit the making of Revolving Loans, the Borrower shall be deemed to
have requested a borrowing of Revolving Loans (which shall be Base Rate Loans)
in an amount equal to the unpaid Reimbursement Obligation and the Agent shall
give each Lender prompt notice (which shall be no later than 12:00 p.m.) of the
amount of the Revolving Loan to be made available to the Agent not later than
1:00 p.m. and (ii) if such conditions would not permit the making of Revolving
Loans, the provisions of subsection (j) of this Section shall apply. The
limitations of Section 3.5.(a) shall not apply to any borrowing of Base Rate
Loans under this subsection.
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(f) Effect of Letters of Credit on Commitments. Upon the issuance by
the Agent of any Letter of Credit and until such Letter of Credit shall have
expired or been terminated, the Commitment of each Lender shall be deemed to be
utilized for all purposes of this Agreement in an amount equal to the product of
(i) such Lender's Commitment Percentage and (ii) the sum of (A) the Stated
Amount of such Letter of Credit plus (B) any related Reimbursement Obligations
then outstanding.
(g) Agent's Duties Regarding Letters of Credit; Unconditional Nature of
Reimbursement Obligation. In examining documents presented in connection with
drawings under Letters of Credit and making payments under such Letters of
Credit against such documents, the Agent shall only be required to use the same
standard of care as it uses in connection with examining documents presented in
connection with drawings under letters of credit in which it has not sold
participations and making payments under such letters of credit. The Borrower
assumes all risks of the acts and omissions of, or misuse of the Letters of
Credit by, the respective beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, neither the Agent nor any of
the Lenders shall be responsible for (i) the form, validity, sufficiency,
accuracy, genuineness or legal effects of any document submitted by any party in
connection with the application for and issuance of or any drawing honored under
any Letter of Credit even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit, or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) failure of the beneficiary of any
Letter of Credit to comply fully with conditions required in order to draw upon
such Letter of Credit; (iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telex, telecopy or
otherwise, whether or not they be in cipher; (v) errors in interpretation of
technical terms; (vi) any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any Letter of Credit, or of
the proceeds thereof; (vii) the misapplication by the beneficiary of any Letter
of Credit, or the proceeds of any drawing under any Letter of Credit; or (viii)
any consequences arising from causes beyond the control of the Agent or the
Lenders. None of the above shall affect, impair or prevent the vesting of any of
the Agent's or any Lender's rights or powers hereunder. Any action taken or
omitted to be taken by the Agent under or in connection with any Letter of
Credit, if taken or omitted in the absence of gross negligence or willful
misconduct, shall not create against the Agent or any Lender any liability to
the Borrower or any Lender. In this connection, the obligation of the Borrower
to reimburse the Agent for any drawing made under any Letter of Credit shall be
absolute, unconditional and irrevocable and shall be paid strictly in accordance
with the terms of this Agreement under all circumstances whatsoever, including
without limitation, the following circumstances: (A) any lack of validity or
enforceability of any Letter of Credit Document or any term or provisions
therein; (B) any amendment or waiver of or any consent to departure from all or
any of the Letter of Credit Documents; (C) the existence of any claim, setoff,
defense or other right which the Borrower may have at any time against the
Agent, any Lender, any beneficiary of a Letter of Credit or any other Person,
whether in connection with this Agreement, the transactions contemplated hereby
or in the Letter of Credit Documents or any unrelated transaction; (D) any
breach of contract or dispute between the Borrower, the Agent, any Lender or any
other Person;
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(E) any demand, statement or any other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein or made in connection therewith being untrue or
inaccurate in any respect whatsoever; (F) any non-application or misapplication
by the beneficiary of a Letter of Credit or any other Person of the proceeds of
any drawing under such Letter of Credit; (G) payment by the Agent under any
Letter of Credit against presentation of a draft or certificate which does not
strictly comply with the terms of such Letter of Credit; and (H) any other act,
omission to act, delay or circumstance whatsoever that might, but for the
provisions of this Section, constitute a legal or equitable defense to or
discharge of the Borrower's Reimbursement Obligations. Notwithstanding anything
to the contrary contained in this Section or Section 12.9., but not in
limitation of the Borrower's unconditional obligation to reimburse the Agent for
any drawing made under a Letter of Credit as provided in this Section, the
Borrower shall have no obligation to indemnify the Agent or any Lender in
respect of any liability incurred by the Agent arising solely out of the gross
negligence or willful misconduct of the Agent in respect of a Letter of Credit
as actually and finally determined by a court of competent jurisdiction. Except
as otherwise provided in this Section, nothing in this Section shall affect any
rights the Borrower may have with respect to the Agent's gross negligence or
willful misconduct with respect to any Letter of Credit.
(h) Amendments, Etc. The issuance by the Agent of any amendment,
supplement or other modification to any Letter of Credit shall be subject to the
same conditions applicable under this Agreement to the issuance of new Letters
of Credit (including, without limitation, that the request therefor be made
through the Agent), and no such amendment, supplement or other modification
shall be issued unless either (i) the respective Letter of Credit affected
thereby would have complied with such conditions had it originally been issued
hereunder in such amended, supplemented or modified form or (ii) the Requisite
Lenders shall have consented thereto. In connection with any such amendment,
supplement or other modification, the Borrower shall pay the Fees, if any,
payable under the last sentence of Section 3.6.(b).
(i) Lenders' Participation in Letters of Credit. Immediately upon the
issuance by the Agent of any Letter of Credit each Lender shall be deemed to
have irrevocably and unconditionally purchased and received from the Agent,
without recourse or warranty, an undivided interest and participation to the
extent of such Lender's Commitment Percentage of the liability of the Agent with
respect to such Letter of Credit and each Lender thereby shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as surety,
and shall be unconditionally obligated to the Agent to pay and discharge when
due, such Lender's Commitment Percentage of the Agent's liability under such
Letter of Credit. In addition, upon the making of each payment by a Lender to
the Agent in respect of any Letter of Credit pursuant to the immediately
following subsection (j), such Lender shall, automatically and without any
further action on the part of the Agent or such Lender, acquire (i) a
participation in an amount equal to such payment in the Reimbursement Obligation
owing to the Agent by the Borrower in respect of such Letter of Credit and (ii)
a participation in a percentage equal to such Lender's Commitment Percentage in
any interest or other amounts payable by the Borrower in respect of such
Reimbursement Obligation (other than the Fees payable to the Agent pursuant to
the second and last sentences of Section 3.6.(b)).
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(j) Payment Obligation of Lenders. Each Lender severally agrees to pay
to the Agent on demand in immediately available funds in Dollars the amount of
such Lender's Commitment Percentage of each drawing paid by the Agent under each
Letter of Credit to the extent such amount is not reimbursed by the Borrower
pursuant to Section 2.3.(d). Each such Lender's obligation to make such payments
to the Agent under this subsection, and the Agent's right to receive the same,
shall be absolute, irrevocable and unconditional and shall not be affected in
any way by any circumstance whatsoever, including without limitation, (i) the
failure of any other Lender to make its payment under this subsection, (ii) the
financial condition of the Borrower or any other Loan Party, (iii) the existence
of any Default or Event of Default, including any Event of Default described in
Section 10.1.(f) or 10.1.(g) or (iv) the termination of the Commitments. Each
such payment to the Agent shall be made without any offset, abatement,
withholding or deduction whatsoever.
(k) Information to Lenders. Upon the request of any Lender from time to
time, the Agent shall deliver to such Lender information reasonably requested by
such Lender with respect to each Letter of Credit then outstanding. Other than
as set forth in this subsection, the Agent shall have no duty to notify the
Lenders regarding the issuance or other matters regarding Letters of Credit
issued hereunder. The failure of the Agent to perform its requirements under
this subsection shall not relieve any Lender from its obligations under Section
2.3.(j).
Section 2.4. Rates and Payment of Interest on Loans.
(a) Rates. The Borrower promises to pay to the Agent for the account of
each Lender interest on the unpaid principal amount of each Loan made by such
Lender for the period from and including the date of the making of such Loan to
but excluding the date such Loan shall be paid in full, at the following per
annum rates:
(i) during such periods as such Loan is a Base Rate Loan, at
the Base Rate (as in effect from time to time) plus the Applicable
Margin; and
(ii) during such periods as such Loan is a LIBOR Loan, at the
Adjusted Eurodollar Rate for such Loan for the Interest Period therefor
plus the Applicable Margin.
Notwithstanding the foregoing, during the continuance of an Event of Default,
the Borrower shall pay to the Agent for the account of each Lender interest at
the Post-Default Rate on the outstanding principal amount of any Loan made by
such Lender, on all Reimbursement Obligations and on any other amount payable by
the Borrower hereunder or under the Notes held by such Lender to or for the
account of such Lender (including without limitation, accrued but unpaid
interest to the extent permitted under Applicable Law).
(b) Payment of Interest. Accrued interest on each Loan shall be payable
(i) in the case of a Base Rate Loan, monthly in arrears on the first day of each
calendar month, (ii) in the case of a LIBOR Loan, on the last day of each
Interest Period therefor, and (iii) in the case of any Loan, upon the payment,
prepayment or Continuation thereof or the Conversion of such Loan to a Loan of
another Type (but only on the principal amount so paid, prepaid, Continued or
Converted). Interest payable at the Post-Default Rate shall be payable from time
to time on
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demand. Promptly after the determination of any interest rate provided for
herein or any change therein, the Agent shall give notice thereof to the Lenders
to which such interest is payable and to the Borrower. All determinations by the
Agent of an interest rate hereunder shall be conclusive and binding on the
Lenders and the Borrower for all purposes, absent manifest error.
Section 2.5. Number of Interest Periods.
There may be no more than 6 different Interest Periods for LIBOR Loans
outstanding at the same time.
Section 2.6. Repayment of Loans.
The Borrower shall repay the entire outstanding principal amount of,
and all accrued but unpaid interest on, the Loans, together with all other
amounts then outstanding under this Agreement, on the Termination Date.
Section 2.7. Prepayments.
(a) Optional. Subject to Section 4.4., the Borrower may prepay any Loan
at any time without premium or penalty. The Borrower shall give the Agent at
least one Business Day's prior written notice of the prepayment of any Revolving
Loan.
(b) Mandatory. If at any time the aggregate principal amount of all
outstanding Revolving Loans, together with the aggregate amount of all Letter of
Credit Liabilities and the aggregate principal amount of all outstanding
Swingline Loans, exceeds the aggregate amount of the Commitments in effect at
such time, the Borrower shall immediately pay to the Agent for the accounts of
the Lenders the amount of such excess. Such payment shall be applied to pay all
amounts of principal outstanding on the Loans and any Reimbursement Obligations
pro rata in accordance with Section 3.2. and if any Letters of Credit are
outstanding at such time the remainder, if any, shall be deposited into the
Collateral Account for application to any Reimbursement Obligations. If the
Borrower is required to pay any outstanding LIBOR Loans by reason of this
Section prior to the end of the applicable Interest Period therefor, the
Borrower shall pay all amounts due under Section 4.4.
Section 2.8. Continuation.
So long as no Default or Event of Default shall have occurred and be
continuing, the Borrower may on any Business Day, with respect to any LIBOR
Loan, elect to maintain such LIBOR Loan or any portion thereof as a LIBOR Loan
by selecting a new Interest Period for such LIBOR Loan. Each new Interest Period
selected under this Section shall commence on the last day of the immediately
preceding Interest Period. Each selection of a new Interest Period shall be made
by the Borrower giving to the Agent a Notice of Continuation not later than
11:00 a.m. on the third Business Day prior to the date of any such Continuation.
Such notice by the Borrower of a Continuation shall be by telephone or telecopy,
confirmed immediately in writing if by telephone, in the form of a Notice of
Continuation, specifying (a) the proposed date of such Continuation, (b) the
LIBOR Loans and portions thereof subject to such Continuation and (c) the
duration of the selected Interest Period, all of which shall be specified in
such manner as is
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necessary to comply with all limitations on Loans outstanding hereunder. Each
Notice of Continuation shall be irrevocable by and binding on the Borrower once
given. Promptly after receipt of a Notice of Continuation, the Agent shall
notify each Lender by telecopy, or other similar form of transmission, of the
proposed Continuation. If the Borrower shall fail to select in a timely manner a
new Interest Period for any LIBOR Loan in accordance with this Section, or if a
Default or Event of Default shall have occurred and be continuing, such Loan
will automatically, on the last day of the current Interest Period therefor,
Convert into a Base Rate Loan notwithstanding the first sentence of Section 2.9.
or the Borrower's failure to comply with any of the terms of such Section.
Section 2.9. Conversion.
So long as no Default or Event of Default shall have occurred and be
continuing, the Borrower may on any Business Day, upon the Borrower's giving of
a Notice of Conversion to the Agent, Convert all or a portion of a Loan of one
Type into a Loan of another Type. Any Conversion of a LIBOR Loan into a Base
Rate Loan shall be made on, and only on, the last day of an Interest Period for
such LIBOR Loan and, upon Conversion of a Base Rate Loan into a LIBOR Loan, the
Borrower shall pay accrued interest to the date of Conversion on the principal
amount so Converted. Each such Notice of Conversion shall be given not later
than 11:00 a.m. on the Business Day prior to the date of any proposed Conversion
into Base Rate Loans and on the third Business Day prior to the date of any
proposed Conversion into LIBOR Loans. Promptly after receipt of a Notice of
Conversion, the Agent shall notify each Lender by telecopy, or other similar
form of transmission, of the proposed Conversion. Subject to the restrictions
specified above, each Notice of Conversion shall be by telephone (confirmed
immediately in writing) or telecopy in the form of a Notice of Conversion
specifying (a) the requested date of such Conversion, (b) the Type of Loan to be
Converted, (c) the portion of such Type of Loan to be Converted, (d) the Type of
Loan such Loan is to be Converted into and (e) if such Conversion is into a
LIBOR Loan, the requested duration of the Interest Period of such Loan. Each
Notice of Conversion shall be irrevocable by and binding on the Borrower once
given.
Section 2.10. Notes.
(a) Revolving Note. The Revolving Loans made by each Lender shall, in
addition to this Agreement, also be evidenced by a promissory note of the
Borrower substantially in the form of Exhibit H (each a "Revolving Note"),
payable to the order of such Lender in a principal amount equal to the amount of
its Commitment as originally in effect and otherwise duly completed.
(b) Records. The date, amount, interest rate, Type and duration of
Interest Periods (if applicable) of each Loan made by each Lender to the
Borrower, and each payment made on account of the principal thereof, shall be
recorded by such Lender on its books and such entries shall be binding on the
Borrower absent manifest error.
(c) Lost, Stolen, Destroyed or Mutilated Notes. Upon receipt by the
Borrower of (i) written notice from a Lender that a Note of such Lender has been
lost, stolen, destroyed or mutilated, and (ii) (A) in the case of loss, theft or
destruction, an unsecured agreement of indemnity from such Lender in form
reasonably satisfactory to the Borrower, or (B) in the case
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of mutilation, upon surrender and cancellation of such Note, the Borrower shall
at its own expense execute and deliver to such Lender a new Note dated the date
of such lost, stolen, destroyed or mutilated Note.
Section 2.11. Voluntary Reductions of the Commitment.
The Borrower shall have the right to terminate or reduce the aggregate
unused amount of the Commitments (for which purpose use of the Commitments shall
be deemed to include the aggregate amount of Letter of Credit Liabilities and
the aggregate principal amount of all outstanding Swingline Loans) at any time
and from time to time without penalty or premium upon not less than 15 Business
Days prior written notice to the Agent of each such termination or reduction,
which notice shall specify the effective date thereof and the amount of any such
reduction and shall be irrevocable once given and effective only upon receipt by
the Agent. The Agent will promptly transmit such notice to each Lender. The
Commitments may not be reduced below $200,000,000 in the aggregate unless the
Borrower terminates the Commitments in their entirety, and, once terminated or
reduced, the Commitments may not be increased or reinstated. Any reduction in
the aggregate amount of the Commitments shall result in a proportionate
reduction (rounded to the next lowest integral multiple of multiple of $100,000)
in the Swingline Commitment and the L/C Commitment Amount.
Section 2.12. Expiration or Maturity Date of Letters of Credit Past Termination
Date.
If on the date (the "Facility Termination Date") the Commitments are
terminated (whether voluntarily, by reason of the occurrence of an Event of
Default or otherwise), there are any Letters of Credit outstanding hereunder,
the Borrower shall, on the Facility Termination Date, pay to the Agent an amount
of money equal to the Stated Amount of such Letter(s) of Credit for deposit into
the Collateral Account. If a drawing pursuant to any such Letter of Credit
occurs on or prior to the expiration date of such Letter of Credit, the Borrower
authorizes the Agent to use the monies deposited in the Collateral Account to
make payment to the beneficiary with respect to such drawing or the payee with
respect to such presentment. If no drawing occurs on or prior to the expiration
date of such Letter of Credit, the Agent shall withdraw the monies deposited in
the Collateral Account with respect to such outstanding Letter of Credit on or
before the date 15 Business Days after the expiration date of such Letter of
Credit and apply such funds to the Obligations, if any, then due and payable in
the order prescribed by Section 10.4.
Section 2.13. Amount Limitations.
Notwithstanding any other term of this Agreement or any other Loan
Document, at no time may the aggregate principal amount of all outstanding
Revolving Loans, together with the aggregate principal amount of all outstanding
Swingline Loans and the aggregate amount of all Letter of Credit Liabilities,
exceed the aggregate amount of the Commitments at such time.
Section 2.14. Increase of Commitments.
Subject to the approval of the Agent (which shall not be unreasonably
withheld or delayed), the Borrower shall have the right to request increases in
the aggregate amount of the
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Commitments (provided that there shall be no more than three such increases in
the Commitments and the aggregate amount of increases in the Commitments
pursuant to this Section shall not exceed $250,000,000) by providing written
notice to the Agent, which notice shall be irrevocable once given. Each such
increase in the Commitments must be an aggregate minimum amount of $50,000,000
and integral multiples of $5,000,000 in excess thereof. The Agent shall promptly
notify each Lender of any such request. Each existing Lender shall have the
right to increase its Commitment by an amount so that such Lender's Commitment
Percentage shall not be decreased as a result of such requested increase in the
Commitments. Each Lender shall notify the Agent within 10 Business Days after
receipt of the Agent's notice whether such Lender wishes to increase the amount
of its Commitment. If a Lender fails to deliver any such notice to the Agent
within such time period, then such Lender shall be deemed to have declined to
increase its Commitment. No Lender shall be required to increase its Commitment
and any new Lender(s) becoming a party to this Agreement in connection with any
such requested increase must be an Eligible Assignee. In the event a new Lender
or Lenders become a party to this Agreement, or if any existing Lender agrees to
increase its Commitment, such Lender shall on the date it becomes a Lender
hereunder (or increases its Commitment, in the case of an existing Lender) (and
as a condition thereto) purchase from the other Lenders its Commitment
Percentage (as determined after giving effect to the increase of Commitments) of
any outstanding Revolving Loans, by making available to the Agent for the
account of such other Lenders at the Principal Office, in same day funds, an
amount equal to the sum of (A) the portion of the outstanding principal amount
of such Revolving Loans to be purchased by such Lender plus (B) the aggregate
amount of payments previously made by the other Lenders under Sections 2.2.(e)
or 2.3.(j) which have not been repaid plus (C) interest accrued and unpaid to
and as of such date on such portion of the outstanding principal amount of such
Revolving Loans. The Borrower shall pay to the Lenders amounts payable, if any,
to such Lenders under Section 4.4. as a result of the prepayment of any such
Revolving Loans. No increase of the Commitments may be effected under this
Section if either (x) a Default or Event of Default shall be in existence on the
effective date of such increase or (y) any representation or warranty made or
deemed made by the Borrower or any other Loan Party in any Loan Document to
which any such Loan Party is a party is not (or would not be) true or correct on
the effective date of such increase (except for representations or warranties
which expressly relate solely to an earlier date). In connection with any
increase in the aggregate amount of the Commitments pursuant to this subsection,
(a) any Lender becoming a party hereto shall execute such documents and
agreements as the Agent may reasonably request and (b) the Borrower shall make
appropriate arrangements so that each new Lender, and any existing Lender
increasing its Commitment, receives a new or replacement Note, as appropriate,
in the amount of such Lender's Commitment within 2 Business Days of the
effectiveness of the applicable increase in the aggregate amount of Commitments.
Section 2.15. Extension of Termination Date.
The Borrower may request that the Agent and the Lenders extend the
current Termination Date by one year by executing and delivering to the Agent at
least 30 days but not more than 120 days prior to the current Termination Date,
a written request for such extension. The Agent shall forward to each Lender a
copy of any such request delivered to the Agent promptly upon receipt thereof.
Subject to satisfaction of the following conditions, the Termination Date shall
be extended for one year: (a) no Default or Event of Default shall exist as of
the date of the current Termination Date or would exist immediately after giving
effect to the requested extension;
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(b) the representations and warranties made or deemed made by the Borrower and
each other Loan Party in the Loan Documents to which any of them is a party
would be true and correct immediately after giving effect to the requested
extension of the Termination Date, except to the extent that such
representations and warranties expressly relate solely to an earlier date (in
which case such representations and warranties shall have been true and accurate
on and as of such earlier date) and except for changes in factual circumstances
specifically and expressly permitted hereunder and (c) the Borrower shall have
paid the Fees payable under Section 3.6.(d). The Termination Date may only be
extended one time pursuant to this Section.
ARTICLE III. PAYMENTS, FEES AND OTHER GENERAL PROVISIONS
Section 3.1. Payments.
Except to the extent otherwise provided herein, all payments of
principal, interest and other amounts to be made by the Borrower under this
Agreement or any other Loan Document shall be made in Dollars, in immediately
available funds, without deduction, set-off or counterclaim, to the Agent at its
Principal Office, not later than 2:00 p.m. on the date on which such payment
shall become due (each such payment made after such time on such due date to be
deemed to have been made on the next succeeding Business Day). Subject to
Sections 3.2. and 3.3., the Agent may (but shall not be obligated to) debit the
amount of any such payment which is not made by such time from any special or
general deposit account of the Borrower with the Agent (with notice to the
Borrower). The Borrower shall, at the time of making each payment under this
Agreement or any Note, specify to the Agent the amounts payable by the Borrower
hereunder to which such payment is to be applied. Each payment received by the
Agent for the account of a Lender under this Agreement or any Note shall be paid
to such Lender at the applicable Lending Office of such Lender no later than
5:00 p.m. on the date of receipt. If the Agent fails to pay such amount to a
Lender as provided in the previous sentence, the Agent shall pay interest on
such amount until paid at a rate per annum equal to the Federal Funds Rate from
time to time in effect. If the due date of any payment under this Agreement or
any other Loan Document would otherwise fall on a day which is not a Business
Day such date shall be extended to the next succeeding Business Day and interest
shall be payable for the period of such extension.
Section 3.2. Pro Rata Treatment.
Except to the extent otherwise provided herein: (a) each borrowing from
the Lenders under Section 2.1.(a) shall be made from the Lenders, each payment
of the Fees under Section 3.6.(a), the first sentence of Section 3.6.(b) and
Sections 3.6.(c) and (d) shall be made for the account of the Lenders, and each
termination or reduction of the amount of the Commitments under Section 2.11.
shall be applied to the respective Commitments of the Lenders, pro rata
according to the amounts of their respective Commitments; (b) each payment or
prepayment of principal of Revolving Loans by the Borrower shall be made for the
account of the Lenders pro rata in accordance with the respective unpaid
principal amounts of the Revolving Loans held by them, provided that if
immediately prior to giving effect to any such payment in respect of any
Revolving Loans the outstanding principal amount of the Revolving Loans shall
not be held by the Lenders pro rata in accordance with their respective
Commitments in effect at the time such Loans were made, then such payment shall
be applied to the Revolving Loans in
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such manner as shall result, as nearly as is practicable, in the outstanding
principal amount of the Revolving Loans being held by the Lenders pro rata in
accordance with their respective Commitments; (c) each payment of interest on
Revolving Loans by the Borrower shall be made for the account of the Lenders pro
rata in accordance with the amounts of interest on such Loans then due and
payable to the respective Lenders; (d) the making, Conversion and Continuation
of Revolving Loans of a particular Type (other than Conversions provided for by
Section 4.6.) shall be made pro rata among the Lenders according to the amounts
of their respective Commitments (in the case of making of Loans) or their
respective Loans (in the case of Conversions and Continuations of Loans) and the
then current Interest Period for each Lender's portion of each Loan of such Type
shall be coterminous; (e) the Lenders' participation in, and payment obligations
in respect of, Letters of Credit under Section 2.3., shall be pro rata in
accordance with their respective Commitments; and (f) the Lenders' participation
in, and payment obligations in respect of, Swingline Loans under Section 2.2.,
shall be in accordance with their respective Commitments. All payments of
principal, interest, fees and other amounts in respect of the Swingline Loans
shall be for the account of the Swingline Lender only (except to the extent any
Lender shall have acquired a participating interest in any such Swingline Loan
pursuant to Section 2.2.(e)).
Section 3.3. Sharing of Payments, Etc.
If a Lender shall obtain payment of any principal of, or interest on,
any Loan made by it to the Borrower under this Agreement, or shall obtain
payment on any other Obligation owing by the Borrower or a Loan Party through
the exercise of any right of set-off, banker's lien or counterclaim or similar
right or otherwise or through voluntary prepayments directly to a Lender or
other payments made by the Borrower to a Lender not in accordance with the terms
of this Agreement and such payment should be distributed to the Lenders pro rata
in accordance with Section 3.2. or Section 10.4., as applicable, such Lender
shall promptly purchase from the other Lenders participations in (or, if and to
the extent specified by such Lender, direct interests in) the Loans made by the
other Lenders or other Obligations owed to such other Lenders in such amounts,
and make such other adjustments from time to time as shall be equitable, to the
end that all the Lenders shall share the benefit of such payment (net of any
reasonable expenses which may be incurred by such Lender in obtaining or
preserving such benefit) pro rata in accordance with Section 3.2. or Section
10.4. To such end, all the Lenders shall make appropriate adjustments among
themselves (by the resale of participations sold or otherwise) if such payment
is rescinded or must otherwise be restored. The Borrower agrees that any Lender
so purchasing a participation (or direct interest) in the Loans or other
Obligations owed to such other Lenders may exercise all rights of set-off,
banker's lien, counterclaim or similar rights with respect to such participation
as fully as if such Lender were a direct holder of Loans in the amount of such
participation. Nothing contained herein shall require any Lender to exercise any
such right or shall affect the right of any Lender to exercise, and retain the
benefits of exercising, any such right with respect to any other indebtedness or
obligation of the Borrower.
Section 3.4. Several Obligations.
No Lender shall be responsible for the failure of any other Lender to
make a Loan or to perform any other obligation to be made or performed by such
other Lender hereunder, and the failure of any Lender to make a Loan or to
perform any other obligation to be made or performed
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by it hereunder shall not relieve the obligation of any other Lender to make any
Loan or to perform any other obligation to be made or performed by such other
Lender.
Section 3.5. Minimum Amounts.
(a) Borrowings and Conversions. Each borrowing of Base Rate Loans shall
be in an aggregate minimum amount of $1,000,000 and integral multiples of
$500,000 in excess thereof. Each borrowing and each Conversion of LIBOR Loans
shall be in an aggregate minimum amount of $1,000,000 and integral multiples of
$1,000,000 in excess of that amount.
(b) Prepayments. Each voluntary prepayment of Revolving Loans shall be
in an aggregate minimum amount of $1,000,000 and integral multiples of $500,000
in excess thereof (or, if less, the aggregate principal amount of Revolving
Loans then outstanding).
(c) Reductions of Commitments. Each reduction of the Commitments under
Section 2.11. shall be in an aggregate minimum amount of $10,000,000 and
integral multiples of $5,000,000 in excess thereof.
(d) Letters of Credit. The initial Stated Amount of each Letter of
Credit shall be at least $500,000.
Section 3.6. Fees.
(a) Facility Fees. The Borrower agrees to pay to the Agent for the
account of each Lender a facility fee equal to the average daily amount of the
Commitment of such Lender (whether or not utilized) times the Facility Fee for
the period from and including the Agreement Date to but excluding the date such
Commitment is terminated or reduced to zero or the Termination Date, such fee to
be paid in arrears on (i) the last Business Day of March, June, September and
December in each year, (ii) the date of each reduction in the Commitments (but
only on the amount of the reduction) and (iii) on the Termination Date.
(b) Letter of Credit Fees. The Borrower agrees to pay to the Agent for
the account of each Lender a letter of credit fee at a rate per annum equal to
the Applicable Margin for LIBOR Loans times the daily average Stated Amount of
each Letter of Credit for the period from and including the date of issuance of
such Letter of Credit (x) to and including the date such Letter of Credit
expires or is terminated or (y) to but excluding the date such Letter of Credit
is drawn in full. In addition, the Borrower shall pay to the Agent for its own
account and not the account of any Lender, a fronting fee in respect of each
Letter of Credit at the rate equal to one-eighth of one percent (0.125%) per
annum on the daily average Stated Amount of such Letter of Credit for the period
from and including the date of issuance of such Letter of Credit (A) to and
including the date such Letter of Credit expires or is terminated or (B) to but
excluding the date such Letter of Credit is drawn in full. The fees provided for
in the immediately preceding two sentences shall be nonrefundable and payable in
arrears (i) on the last Business Day of March, June, September and December in
each year, (ii) on the Termination Date, (iii) on the date the Commitments are
terminated or reduced to zero and (iv) thereafter from time to time on demand of
the Agent. The Borrower shall pay directly to the Agent from time to time on
demand all commissions, charges, costs and expenses in the amounts customarily
charged by the Agent from
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time to time in like circumstances with respect to the issuance of each Letter
of Credit, drawings, amendments and other transactions relating thereto.
(c) Administrative and Other Fees. The Borrower agrees to pay the
administrative and other fees of the Agent as may be agreed to in writing from
time to time.
(d) Extension Fees. If, pursuant to Section 2.15., the Termination Date
is extended, the Borrower agrees to pay to the Agent for the account of each
Lender an extension fee equal to 0.35% of each such Lender's Commitment at the
time of such extension. Payment of such fees shall be a condition precedent to
the effectiveness of any such extension.
Section 3.7. Computations.
Unless otherwise expressly set forth herein, any accrued interest on
any Loan, any Fees or any other Obligations due hereunder shall be computed on
the basis of a year of 360 days and the actual number of days elapsed.
Section 3.8. Usury.
In no event shall the amount of interest due or payable on the Loans or
other Obligations exceed the maximum rate of interest allowed by Applicable Law
and, if any such payment is paid by the Borrower or received by any Lender, then
such excess sum shall be credited as a payment of principal, unless the Borrower
shall notify the respective Lender in writing that the Borrower elects to have
such excess sum returned to it forthwith. It is the express intent of the
parties hereto that the Borrower not pay and the Lenders not receive, directly
or indirectly, in any manner whatsoever, interest in excess of that which may be
lawfully paid by the Borrower under Applicable Law.
Section 3.9. Agreement Regarding Interest and Charges.
The parties hereto hereby agree and stipulate that the only charge
imposed upon the Borrower for the use of money in connection with this Agreement
is and shall be the interest specifically described in Section 2.4.(a)(i) and
(ii) and in Section 2.2.(c). Notwithstanding the foregoing, the parties hereto
further agree and stipulate that all agency fees, syndication fees, facility
fees, closing fees, letter of credit fees, underwriting fees, default charges,
late charges, funding or "breakage" charges, increased cost charges, attorneys'
fees and reimbursement for costs and expenses paid by the Agent or any Lender to
third parties or for damages incurred by the Agent or any Lender, or any other
similar amounts are charges made to compensate the Agent or any such Lender for
underwriting or administrative services and costs or losses performed or
incurred, and to be performed or incurred, by the Agent and the Lenders in
connection with this Agreement and shall under no circumstances be deemed to be
charges for the use of money. All charges other than charges for the use of
money shall be fully earned and nonrefundable when due.
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Section 3.10. Statements of Account.
The Agent will account to the Borrower monthly with a statement of
Loans, Letters of Credit, accrued interest and Fees, charges and payments made
pursuant to this Agreement and the other Loan Documents, and such account
rendered by the Agent shall be deemed conclusive upon Borrower absent manifest
error. The failure of the Agent to deliver such a statement of accounts shall
not relieve or discharge the Borrower from any of its obligations hereunder.
Section 3.11. Defaulting Lenders.
(a) Generally. If for any reason any Lender (a "Defaulting Lender")
shall fail or refuse to perform any of its obligations under this Agreement or
any other Loan Document to which it is a party within the time period specified
for performance of such obligation or, if no time period is specified, if such
failure or refusal continues for a period of two Business Days after notice from
the Agent, then, in addition to the rights and remedies that may be available to
the Agent or the Borrower under this Agreement or Applicable Law, such
Defaulting Lender's right to participate in the administration of the Loans,
this Agreement and the other Loan Documents, including without limitation, any
right to vote in respect of, to consent to or to direct any action or inaction
of the Agent or to be taken into account in the calculation of the Requisite
Lenders, shall be suspended during the pendency of such failure or refusal. If a
Lender is a Defaulting Lender because it has failed to make timely payment to
the Agent of any amount required to be paid to the Agent hereunder (without
giving effect to any notice or cure periods), in addition to other rights and
remedies which the Agent or the Borrower may have under the immediately
preceding provisions or otherwise, the Agent shall be entitled (i) to collect
interest from such Defaulting Lender on such delinquent payment for the period
from the date on which the payment was due until the date on which the payment
is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in
satisfaction of the defaulted payment and any related interest, any amounts
otherwise payable to such Defaulting Lender under this Agreement or any other
Loan Document and (iii) to bring an action or suit against such Defaulting
Lender in a court of competent jurisdiction to recover the defaulted amount and
any related interest. Any amounts received by the Agent in respect of a
Defaulting Lender's Loans shall not be paid to such Defaulting Lender and shall
be held uninvested by the Agent and either applied against the purchase price of
such Loans under the following subsection (b) or paid to such Defaulting Lender
upon the Defaulting Lender's curing of its default.
(b) Purchase or Cancellation of Defaulting Lender's Commitment. Any
Lender who is not a Defaulting Lender shall have the right, but not the
obligation, in its sole discretion, to acquire all of a Defaulting Lender's
Commitment. Any Lender desiring to exercise such right shall give written notice
thereof to the Agent and the Borrower no sooner than 2 Business Days and not
later than 5 Business Days after such Defaulting Lender became a Defaulting
Lender. If more than one Lender exercises such right, each such Lender shall
have the right to acquire an amount of such Defaulting Lender's Commitment in
proportion to the Commitments of the other Lenders exercising such right. If
after such 5th Business Day, the Lenders have not elected to purchase all of the
Commitment of such Defaulting Lender, then the Borrower may, by giving written
notice thereof to the Agent, such Defaulting Lender and the other Lenders,
either (i) demand that such Defaulting Lender assign its Commitment to an
Eligible Assignee subject to and in accordance with the provisions of Section
12.5.(d) for the purchase price provided for
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below or (ii) terminate the Commitment of such Defaulting Lender, whereupon such
Defaulting Lender shall no longer be a party hereto or have any rights or
obligations hereunder or under any of the other Loan Documents (except as
expressly provided in this subsection (b)). No party hereto shall have any
obligation whatsoever to initiate any such replacement or to assist in finding
an Eligible Assignee. Upon any such purchase or assignment, the Defaulting
Lender's interest in the Loans and its rights hereunder (but not its liability
in respect thereof or under the Loan Documents or this Agreement to the extent
the same relate to the period prior to the effective date of the purchase) shall
terminate on the date of purchase, and the Defaulting Lender shall promptly
execute all documents reasonably requested to surrender and transfer such
interest to the purchaser or assignee thereof, including an appropriate
Assignment and Acceptance Agreement and, notwithstanding Section 12.5.(d), shall
pay to the Agent an assignment fee in the amount of $7,000. The purchase price
for the Commitment of a Defaulting Lender shall be equal to the amount of the
principal balance of the Loans outstanding and owed by the Borrower to the
Defaulting Lender. Prior to payment of such purchase price to a Defaulting
Lender, the Agent shall apply against such purchase price any amounts retained
by the Agent pursuant to the last sentence of the immediately preceding
subsection (a). The Defaulting Lender shall be entitled to receive amounts owed
to it by the Borrower under the Loan Documents which accrued prior to the date
of the default by the Defaulting Lender, to the extent the same are received by
the Agent from or on behalf of the Borrower. There shall be no recourse against
any Lender or the Agent for the payment of such sums except to the extent of the
receipt of payments from any other party or in respect of the Loans.
Section 3.12. Taxes.
(a) Taxes Generally. All payments by the Borrower of principal of, and
interest on, the Loans and all other Obligations shall be made free and clear of
and without deduction for any present or future excise, stamp or other taxes,
fees, duties, levies, imposts, charges, deductions, withholdings or other
charges of any nature whatsoever imposed by any taxing authority, but excluding
(i) franchise taxes, (ii) any taxes (other than withholding taxes) that would
not be imposed but for a connection between the Agent or a Lender and the
jurisdiction imposing such taxes (other than a connection arising solely by
virtue of the activities of the Agent or such Lender pursuant to or in respect
of this Agreement or any other Loan Document), (iii) any taxes imposed on or
measured by any Lender's assets, net income, receipts or branch profits, (iv)
any taxes arising after the Agreement Date solely as a result of or attributable
to a Lender changing its designated Lending Office after the date such Lender
becomes a party hereto, and (v) any taxes, fees, duties, levies, imposts,
charges, deductions, withholdings or other charges to the extent imposed as a
result of the failure of the Agent or a Lender, as applicable, to provide and
keep current (to the extent legally able) any certificates, documents or other
evidence required to qualify for an exemption from, or reduced rate of, any such
taxes fees, duties, levies, imposts, charges, deductions, withholdings or other
charges or required by the immediately following subsection (c) to be furnished
by the Agent or such Lender, as applicable (such non-excluded items being
collectively called "Taxes"). If any withholding or deduction from any payment
to be made by the Borrower hereunder is required in respect of any Taxes
pursuant to any Applicable Law, then the Borrower will:
(i) pay directly to the relevant Governmental Authority the
full amount required to be so withheld or deducted;
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(ii) promptly forward to the Agent an official receipt or
other documentation satisfactory to the Agent evidencing such payment
to such Governmental Authority; and
(iii) pay to the Agent for its account or the account of the
applicable Lender, as the case may be, such additional amount or
amounts as is necessary to ensure that the net amount actually received
by the Agent or such Lender will equal the full amount that the Agent
or such Lender would have received had no such withholding or deduction
been required.
(b) Tax Indemnification. If the Borrower fails to pay any Taxes when
due to the appropriate Governmental Authority or fails to remit to the Agent,
for its account or the account of the respective Lender, as the case may be, the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Agent and the Lenders for any incremental Taxes, interest or
penalties that may become payable by the Agent or any Lender as a result of any
such failure. For purposes of this Section, a distribution hereunder by the
Agent or any Lender to or for the account of any Lender shall be deemed a
payment by the Borrower.
(c) Tax Forms. Prior to the date that any Lender or participant
organized under the laws of a jurisdiction outside the United States of America
becomes a party hereto, such Person shall deliver to the Borrower and the Agent
such certificates, documents or other evidence, as required by the Internal
Revenue Code or Treasury Regulations issued pursuant thereto (including Internal
Revenue Service Forms W-8ECI and W-8BEN, as applicable, or appropriate successor
forms), properly completed, currently effective and duly executed by such Lender
or participant establishing that payments to it hereunder and under the Notes
are (i) not subject to United States Federal backup withholding tax or (ii) not
subject to United States Federal withholding tax under the Internal Revenue Code
because such payment is either effectively connected with the conduct by such
Lender or participant of a trade or business in the United States or totally
exempt from United States Federal withholding tax by reason of the application
of the provisions of a treaty to which the United States is a party or such
Lender is otherwise wholly exempt. In addition, any such Lender or participant
shall deliver to the Borrower and the Agent further copies of any such
certificate, document or other evidence on or before the date that any such
certificate, document or other evidence expires or becomes obsolete and after
the occurrence of any event requiring a change in the most recent form
previously delivered by it, in each case establishing that payments to it
hereunder and under the Notes are (i) not subject to United States Federal
backup withholding tax or (ii) not subject to United States Federal withholding
tax under the Internal Revenue Code because such payment is either effectively
connected with the conduct by such Lender or participant of a trade or business
in the United States or totally exempt from United States Federal withholding
tax by reason of the application of the provisions of a treaty to which the
United States is a party or such Lender or participant, as applicable, is
otherwise wholly exempt, unless an event (including, without limitation, any
change in Applicable Law) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such certificates,
documents and other evidence wholly inapplicable or which would prevent such
Lender or participant, as applicable, from duly completing and delivering any
such certificates, documents or other evidence form with respect
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to it, and such Lender or participant, as applicable, so advises the Borrower
and the Agent in writing.
ARTICLE IV. YIELD PROTECTION, ETC.
Section 4.1. Additional Costs; Capital Adequacy.
(a) Additional Costs. The Borrower shall promptly pay to the Agent for
the account of a Lender from time to time such amounts as such Lender may
determine to be necessary to compensate such Lender for any costs incurred by
such Lender that it determines are attributable to its making or maintaining of
any LIBOR Loans or its obligation to make any LIBOR Loans hereunder, any
reduction in any amount receivable by such Lender under this Agreement or any of
the other Loan Documents in respect of any of such Loans or such obligation or
the maintenance by such Lender of capital in respect of its Loans or its
Commitment (such increases in costs and reductions in amounts receivable being
herein called "Additional Costs"), resulting from any Regulatory Change that:
(i) changes the basis of taxation of any amounts payable to such Lender under
this Agreement or any of the other Loan Documents in respect of any of such
Loans or its Commitment (other than taxes, fees, duties, levies, imposts,
charges, deductions, withholdings or other charges which are excluded from the
definition of Taxes pursuant to the first sentence of Section 3.12.(a)); or (ii)
imposes or modifies any reserve, special deposit or similar requirements (other
than Regulation D of the Board of Governors of the Federal Reserve System or
other reserve requirement to the extent utilized in the determination of the
Adjusted Eurodollar Rate for such Loan) relating to any extensions of credit or
other assets of, or any deposits with or other liabilities of, such Lender, or
any commitment of such Lender (including, without limitation, the Commitments of
such Lender hereunder); or (iii) has or would have the effect of reducing the
rate of return on capital of such Lender to a level below that which such Lender
could have achieved but for such Regulatory Change (taking into consideration
such Lender's policies with respect to capital adequacy).
(b) Lender's Suspension of LIBOR Loans. Without limiting the effect of
the provisions of the immediately preceding subsection (a), if, by reason of any
Regulatory Change, any Lender either (i) incurs Additional Costs based on or
measured by the excess above a specified level of the amount of a category of
deposits or other liabilities of such Lender that includes deposits by reference
to which the interest rate on LIBOR Loans is determined as provided in this
Agreement or a category of extensions of credit or other assets of such Lender
that includes LIBOR Loans or (ii) becomes subject to restrictions on the amount
of such a category of liabilities or assets that it may hold, then, if such
Lender so elects by notice to the Borrower (with a copy to the Agent), the
obligation of such Lender to make or Continue, or to Convert any other Type of
Loans into, LIBOR Loans hereunder shall be suspended until such Regulatory
Change ceases to be in effect (in which case the provisions of Section 4.6.
shall apply).
(c) Additional Costs in Respect of Letters of Credit. Without limiting
the obligations of the Borrower under the preceding subsections of this Section
(but without duplication), if as a result of any Regulatory Change or any
risk-based capital guideline or other requirement heretofore or hereafter issued
by any Governmental Authority there shall be imposed, modified or deemed
applicable any tax, reserve, special deposit, capital adequacy or similar
requirement
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against or with respect to or measured by reference to Letters of Credit and the
result shall be to increase the cost to the Agent of issuing (or any Lender of
purchasing participations in) or maintaining its obligation hereunder to issue
(or purchase participations in) any Letter of Credit or reduce any amount
receivable by the Agent or any Lender hereunder in respect of any Letter of
Credit, then, upon demand by the Agent or such Lender, the Borrower shall pay
promptly, and in any event within 3 Business Days of demand, to the Agent for
its account or the account of such Lender, as applicable, from time to time as
specified by the Agent or a Lender, such additional amounts as shall be
sufficient to compensate the Agent or such Lender for such increased costs or
reductions in amount.
(d) Notification and Determination of Additional Costs. Each of the
Agent and each Lender agrees to notify the Borrower of any event occurring after
the Agreement Date entitling the Agent or such Lender to compensation under any
of the preceding subsections of this Section as promptly as practicable;
provided, however, the failure of the Agent or any Lender to give such notice
shall not release the Borrower from any of its obligations hereunder; provided,
however, that notwithstanding the foregoing provisions of this Section, the
Agent or a Lender, as the case may be, shall not be entitled to compensation for
any such amount relating to any period ending more than six months prior to the
date that the Agent or such Lender, as applicable, first notifies the Borrower
in writing thereof or for any amounts resulting from a change by any Lender of
its Lending Office (other than changes required by Applicable Law). The Agent
and or such Lender agrees to furnish to the Borrower a certificate setting forth
the basis and amount of each request by the Agent or such Lender for
compensation under this Section. Absent manifest error, determinations by the
Agent or any Lender of the effect of any Regulatory Change shall be conclusive,
provided that such determinations are made on a reasonable basis and in good
faith.
Section 4.2. Suspension of LIBOR Loans.
Anything herein to the contrary notwithstanding, if, on or prior to the
determination of any Adjusted Eurodollar Rate for any Interest Period:
(a) the Agent reasonably determines (which determination shall
be conclusive) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
Adjusted Eurodollar Rate for such Interest Period, or
(b) the Agent reasonably determines (which determination shall
be conclusive) that the Adjusted Eurodollar Rate will not adequately
and fairly reflect the cost to the Lenders of making or maintaining
LIBOR Loans for such Interest Period;
then the Agent shall give the Borrower and each Lender prompt notice thereof
and, so long as such condition remains in effect, the Lenders shall be under no
obligation to, and shall not, make additional LIBOR Loans, Continue LIBOR Loans
or Convert Loans into LIBOR Loans and the Borrower shall, on the last day of
each current Interest Period for each outstanding LIBOR Loan, either repay such
Loan or Convert such Loan into a Base Rate Loan.
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Section 4.3. Illegality.
Notwithstanding any other provision of this Agreement, if it becomes
unlawful for any Lender to honor its obligation to make or maintain LIBOR Loans
hereunder, then such Lender shall promptly notify the Borrower thereof (with a
copy to the Agent) and such Lender's obligation to make or Continue, or to
Convert Loans of any other Type into, LIBOR Loans shall be suspended until such
time as such Lender may again make and maintain LIBOR Loans (in which case the
provisions of Section 4.6. shall be applicable).
Section 4.4. Compensation.
The Borrower shall pay to the Agent for the account of each Lender,
upon the request of such Lender through the Agent, such amount or amounts as
shall be sufficient (in the reasonable opinion of such Lender) to compensate it
for any loss, cost or expense that such Lender determines is attributable to:
(a) any payment or prepayment (whether mandatory or optional)
of a LIBOR Loan, or Conversion of a LIBOR Loan, made by such Lender for
any reason (including, without limitation, acceleration) on a date
other than the last day of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any of the applicable conditions
precedent specified in Article V. to be satisfied) to borrow a LIBOR
Loan from such Lender on the date for such borrowing, or to Convert a
Base Rate Loan into a LIBOR Loan or Continue a LIBOR Loan on the
requested date of such Conversion or Continuation.
Upon the Borrower's request, any Lender requesting compensation under this
Section shall provide the Borrower with a statement setting forth the basis for
requesting such compensation and the method for determining the amount thereof.
Absent manifest error, determinations by any Lender in any such statement shall
be conclusive, provided that such determinations are made on a reasonable basis
and in good faith.
Section 4.5. Affected Lenders.
If (a) a Lender requests compensation pursuant to Section 3.12. or
4.1., and the Requisite Lenders are not also doing the same, or (b) the
obligation of any Lender to make LIBOR Loans or to Continue, or to Convert Base
Rate Loans into, LIBOR Loans shall be suspended pursuant to Section 4.1.(b) or
4.3. but the obligation of the Requisite Lenders shall not have been suspended
under such Sections, then, so long as there does not then exist any Default or
Event of Default, the Borrower may either (i) demand that such Lender (the
"Affected Lender"), and upon such demand the Affected Lender shall promptly,
assign its Commitments to an Eligible Assignee subject to and in accordance with
the provisions of Section 12.5.(d) for a purchase price equal to the aggregate
principal balance of Loans then owing to the Affected Lender plus any accrued
but unpaid interest thereon and accrued but unpaid fees
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owing to the Affected Lender, or (ii) pay to the Affected Lender the aggregate
principal balance of Loans then owing to the Affected Lender plus any accrued
but unpaid interest thereon and accrued but unpaid fees owing to the Affected
Lender, whereupon the Affected Lender shall no longer be a party hereto or have
any rights or obligations hereunder or under any of the other Loan Documents.
Each of the Agent and the Affected Lender shall reasonably cooperate in
effectuating the replacement of such Affected Lender under this Section, but at
no time shall the Agent, such Affected Lender nor any other Lender be obligated
in any way whatsoever to initiate any such replacement or to assist in finding
an Eligible Assignee. The exercise by the Borrower of its rights under this
Section shall be at the Borrower's sole cost and expenses and at no cost or
expense to the Agent, the Affected Lender or any of the other Lenders. The terms
of this Section shall not in any way limit the Borrower's obligation to pay to
any Affected Lender compensation owing to such Affected Lender pursuant to
Section 3.12. or 4.1.
Section 4.6. Treatment of Affected Loans.
If the obligation of any Lender to make LIBOR Loans or to Continue, or
to Convert Base Rate Loans into, LIBOR Loans shall be suspended pursuant to
Section 4.1.(b), 4.2. or 4.3., then such Lender's LIBOR Loans shall be
automatically Converted into Base Rate Loans on the last day(s) of the then
current Interest Period(s) for LIBOR Loans (or, in the case of a Conversion
required by Section 4.1.(b) or 4.3., on such earlier date as such Lender may
specify to the Borrower with a copy to the Agent) and, unless and until such
Lender gives notice as provided below that the circumstances specified in
Section 4.1. or 4.3. that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's LIBOR Loans have been so
Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's LIBOR Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Lender as LIBOR Loans shall be made or Continued instead as Base
Rate Loans, and all Base Rate Loans of such Lender that would otherwise
be Converted into LIBOR Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 4.1. or 4.3. that gave rise to the Conversion
of such Lender's LIBOR Loans pursuant to this Section no longer exist (which
such Lender agrees to do promptly upon such circumstances ceasing to exist) at a
time when LIBOR Loans made by other Lenders are outstanding, then such Lender's
Base Rate Loans shall be automatically Converted, on the first day(s) of the
next succeeding Interest Period(s) for such outstanding LIBOR Loans, to the
extent necessary so that, after giving effect thereto, all Loans held by the
Lenders holding LIBOR Loans and by such Lender are held pro rata (as to
principal amounts, Types and Interest Periods) in accordance with their
respective Commitments.
Section 4.7. Change of Lending Office.
Each Lender agrees that it will use reasonable efforts to designate an
alternate Lending Office with respect to any of its Loans affected by the
matters or circumstances described in Sections 3.12., 4.1. or 4.3. to reduce the
liability of the Borrower or avoid the results provided thereunder, so long as
such designation is not disadvantageous to such Lender as determined by
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such Lender in its sole discretion, except that such Lender shall have no
obligation to designate a Lending Office located in the United States of
America.
Section 4.8. Assumptions Concerning Funding of LIBOR Loans.
Calculation of all amounts payable to a Lender under this Article IV.
shall be made as though such Lender had actually funded LIBOR Loans through the
purchase of deposits in the relevant market bearing interest at the rate
applicable to such LIBOR Loans in an amount equal to the amount of the LIBOR
Loans and having a maturity comparable to the relevant Interest Period;
provided, however, that each Lender may fund each of its LIBOR Loans in any
manner it sees fit and the foregoing assumption shall be used only for
calculation of amounts payable under this Article IV.
ARTICLE V. CONDITIONS PRECEDENT
Section 5.1. Initial Conditions Precedent.
The obligation of the Lenders to effect or permit the occurrence of the
first Credit Event hereunder, whether as the making of a Loan or the issuance of
a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and
substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the
parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each
Lender and complying with the applicable provisions of Section 2.10.,
and the Swingline Note executed by the Borrower;
(iii) The Guaranty executed by each Guarantor existing as of
the Effective Date;
(iv) An opinion of (x) Xxxxxxxx & Worcester LLP, counsel to
the Loan Parties, addressed to the Agent, the Lenders and the Swingline
Lender, substantially in the form of Exhibit I-1, and (y) Xxxxxxx Xxxxx
Xxxxxxx & Ingersoll, LLP, special Maryland counsel to the Loan Parties,
addressed to the Agent, the Lenders and the Swingline Lender,
substantially in the form of Exhibit I-2;
(v) The declaration of trust of the Borrower certified as of a
recent date by the Department of Assessments and Taxation of the State
of Maryland;
(vi) A good standing certificate with respect to the Borrower
issued as of a recent date by the Department of Assessments and
Taxation of the State of Maryland and certificates of qualification to
transact business or other comparable certificates issued by the
Secretary of State (and any state department of taxation, as
applicable) of each state in
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which the Borrower is required to be so qualified and where the failure
to be so qualified would have, in each instance, a Material Adverse
Effect;
(vii) A certificate of incumbency signed by the Secretary or
Assistant Secretary of the Borrower with respect to each of the
officers of the Borrower authorized to execute and deliver the Loan
Documents to which the Borrower is a party and the officers of the
Borrower then authorized to deliver Notices of Borrowing, Notices of
Swingline Borrowings, Notices of Continuation and Notices of Conversion
and to request the issuance of Letters of Credit;
(viii) Copies, certified by the Secretary or Assistant
Secretary of the Borrower, of all corporate (or comparable) action
taken by the Borrower to authorize the execution, delivery and
performance of the Loan Documents to which the Borrower is a party;
(ix) The Governing Documents of each Guarantor certified as of
a recent date by the Secretary of State of the State of formation of
such Guarantor;
(x) A certificate of good standing or certificate of similar
meaning with respect to each Guarantor issued as of a recent date by
the Secretary of State of the State of formation of each such Guarantor
and certificates of qualification to transact business or other
comparable certificates issued by each Secretary of State (and any
state department of taxation, as applicable) of each state in which
such Guarantor is required to be so qualified and where the failure to
be so qualified would have, in each instance, a Material Adverse
Effect;
(xi) A certificate of incumbency signed by the Secretary or
Assistant Secretary (or other individual performing similar functions)
of each Guarantor with respect to each of the officers of such
Guarantor authorized to execute and deliver the Loan Documents to which
such Guarantor is a party;
(xii) Copies certified by the Secretary or Assistant Secretary
of each Guarantor (or other individual performing similar functions) of
(i) the by-laws of such Guarantor, if a corporation, the operating
agreement, if a limited liability company, the partnership agreement,
if a limited or general partnership, or other comparable document in
the case of any other form of legal entity and (ii) all corporate,
partnership, member or other necessary action taken by such Guarantor
to authorize the execution, delivery and performance of the Loan
Documents to which it is a party;
(xiii) A copy of (x) each of the documents, instruments and
agreements evidencing any of the Indebtedness described on Schedule
6.1.(g), (y) all Leases, all Ancillary Agreements, the Advisory
Agreement, and each other Material Contract, in each case certified as
true, correct and complete by the chief operating officer or chief
financial officer of the Borrower, and (z) a Lease Abstract with
respect to each Lease for the Unencumbered Senior Housing Assets;
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(xiv) The Fees then due and payable under Section 3.6., and
any other Fees payable to the Agent and the Lenders on or prior to the
Effective Date;
(xv) A Compliance Certificate calculated as of March 31, 2002;
(xvii) A letter from the agent under the Existing Credit
Agreement to the effect that such agreement will be terminated and all
amounts outstanding thereunder shall have been paid upon giving effect
to the disbursement of the initial Revolving Loans hereunder to such
agent; and
(xvi) Such other documents, agreements and instruments as the
Agent on behalf of the Lenders may reasonably request; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent
or any of the Lenders any event, condition, situation or status since
the date of the information contained in the financial and business
projections, budgets, pro forma data and forecasts concerning the
Borrower and its Subsidiaries delivered to the Agent and the Lenders
prior to the Agreement Date that has had or could reasonably be
expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other
arbitral, administrative or judicial proceeding shall be pending or
threatened which could reasonably be expected to (1) result in a
Material Adverse Effect or (2) restrain or enjoin, impose materially
burdensome conditions on, or otherwise materially and adversely affect
the ability of the Borrower or any other Loan Party to fulfill its
obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received
all approvals, consents and waivers, and shall have made or given all
necessary filings and notices as shall be required to consummate the
transactions contemplated hereby without the occurrence of any default
under, conflict with or violation of (1) any Applicable Law or (2) any
agreement, document or instrument to which the Borrower or any other
Loan Party is a party or by which any of them or their respective
properties is bound, except for such approvals, consents, waivers,
filings and notices the receipt, making or giving of which would not
reasonably be likely to (A) have a Material Adverse Effect, or (B)
restrain or enjoin, impose materially burdensome conditions on, or
otherwise materially and adversely affect the ability of the Borrower
or any other Loan Party to fulfill its obligations under the Loan
Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material
disruption of financial or capital markets that could reasonably be
expected to materially and adversely affect the transactions
contemplated by the Loan Documents.
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Section 5.2. Conditions Precedent to All Loans and Letters of Credit.
The obligations of the Lenders to make any Loans, of the Agent to issue
Letters of Credit, and of the Swingline Lender to make any Swingline Loan are
all subject to the further condition precedent that: (a) no Default or Event of
Default shall have occurred and be continuing as of the date of the making of
such Loan or date of issuance of such Letter of Credit or would exist
immediately after giving effect thereto; (b) the representations and warranties
made or deemed made by the Borrower and each other Loan Party in the Loan
Documents to which any of them is a party, shall be true and correct on and as
of the date of the making of such Loan or date of issuance of such Letter of
Credit with the same force and effect as if made on and as of such date except
to the extent that such representations and warranties expressly relate solely
to an earlier date (in which case such representations and warranties shall have
been true and accurate on and as of such earlier date) and except for changes in
factual circumstances specifically and expressly permitted hereunder and (c) in
the case of the borrowing of Revolving Loans, the Agent shall have received a
timely Notice of Borrowing. Each Credit Event shall constitute a certification
by the Borrower to the effect set forth in the preceding sentence (both as of
the date of the giving of notice relating to such Credit Event and, unless the
Borrower otherwise notifies the Agent prior to the date of such Credit Event, as
of the date of the occurrence of such Credit Event). In addition, if such Credit
Event is the making of a Loan, the Borrower shall be deemed to have represented
to the Agent and the Lender at the time such Loan is made that all conditions to
the making of such Loan contained in Article V. have been satisfied.
Section 5.3. Conditions as Covenants.
If the Lenders make any Loans, or the Agent issues a Letter of Credit,
prior to the satisfaction of all conditions precedent set forth in Sections 5.1.
and 5.2., the Borrower shall nevertheless cause such condition or conditions to
be satisfied within 5 Business Days after the date of the making of such Loans
or the issuance of such Letter of Credit. Unless set forth in writing to the
contrary, the making of its initial Loan by a Lender shall constitute a
certification by such Lender to the Agent and the other Lenders that the
Borrower has satisfied the conditions precedent for initial Loans set forth in
Sections 5.1. and 5.2. The Agent will notify each Lender when the Agent has
determined for itself that the Borrower has satisfied such conditions.
ARTICLE VI. REPRESENTATIONS AND WARRANTIES
Section 6.1. Representations and Warranties.
In order to induce the Agent and each Lender to enter into this
Agreement and to make Loans and issue Letters of Credit, the Borrower represents
and warrants to the Agent and each Lender as follows:
(a) Organization; Power; Qualification. Each of the Borrower and its
Subsidiaries is a corporation, partnership or other legal entity, duly organized
or formed, validly existing and in good standing under the jurisdiction of its
incorporation or formation, has the power and authority to own or lease its
respective properties and to carry on its respective business as now being and
hereafter proposed to be conducted and is duly qualified and is in good standing
as a foreign corporation, partnership or other legal entity, and authorized to
do business, in each
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jurisdiction in which the character of its properties or the nature of its
business requires such qualification or authorization and where the failure to
be so qualified or authorized would have, in each instance, a Material Adverse
Effect.
(b) Ownership Structure. As of the Agreement Date Part I of Schedule
6.1.(b) is a complete and correct list of all Subsidiaries of the Borrower
setting forth for each such Subsidiary, (i) the jurisdiction of organization of
such Subsidiary, (ii) each Person holding any Equity Interests in such
Subsidiary, (iii) the nature of the Equity Interests held by each such Person,
(iv) the percentage of ownership of such Subsidiary represented by such Equity
Interests and (v) whether such Subsidiary is a Material Subsidiary and/or an
Excluded Subsidiary. Except as disclosed in such Schedule, as of the Agreement
Date (i) each of the Borrower and its Subsidiaries owns, free and clear of all
Liens, and has the unencumbered right to vote, all outstanding Equity Interests
in each Person shown to be held by it on such Schedule, (ii) all of the issued
and outstanding capital stock of each such Person organized as a corporation is
validly issued, fully paid and nonassessable and (iii) there are no outstanding
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including, without limitation, any stockholders' or voting trust
agreements) for the issuance, sale, registration or voting of, or outstanding
securities convertible into, any additional shares of capital stock of any
class, or partnership or other ownership interests of any type in, any such
Person. As of the Agreement Date Part II of Schedule 6.1.(b) correctly sets
forth all Unconsolidated Affiliates of the Borrower, including the correct legal
name of such Person, the type of legal entity which each such Person is, and all
Equity Interests in such Person held directly or indirectly by the Borrower.
(c) Authorization of Agreement, Etc. The Borrower has the right and
power, and has taken all necessary action to authorize it, to borrow and obtain
other extensions of credit hereunder. The Borrower and each other Loan Party has
the right and power, and has taken all necessary action to authorize it, to
execute, deliver and perform each of the Loan Documents to which it is a party
in accordance with their respective terms and to consummate the transactions
contemplated hereby and thereby. The Loan Documents to which the Borrower or any
other Loan Party is a party have been duly executed and delivered by the duly
authorized officers of such Person and each is a legal, valid and binding
obligation of such Person enforceable against such Person in accordance with its
respective terms except as the same may be limited by bankruptcy, insolvency,
and other similar laws affecting the rights of creditors generally and the
availability of equitable remedies for the enforcement of certain obligations
(other than the payment of principal) contained herein or therein may be limited
by equitable principles generally.
(d) Compliance of Loan Documents with Laws, Etc. The execution,
delivery and performance of this Agreement, the Notes and the other Loan
Documents to which the Borrower or any other Loan Party is a party in accordance
with their respective terms and the borrowings and other extensions of credit
hereunder do not and will not, by the passage of time, the giving of notice, or
both: (i) require any Governmental Approval or violate any Applicable Law
(including all Environmental Laws) relating to the Borrower or any other Loan
Party; (ii) conflict with, result in a breach of or constitute a default under
the organizational documents of the Borrower or any other Loan Party, or any
indenture, agreement or other instrument to which the
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Borrower or any other Loan Party is a party or by which it or any of its
respective properties may be bound; or (iii) result in or require the creation
or imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by the Borrower or any other Loan Party.
(e) Compliance with Law; Governmental Approvals. The Borrower, each
Subsidiary and each other Loan Party is in compliance with each Governmental
Approval applicable to it and in compliance with all other Applicable Law
(including without limitation, Environmental Laws) relating to the Borrower, a
Subsidiary or such other Loan Party except for noncompliances which, and
Governmental Approvals the failure to possess which, would not, individually or
in the aggregate, cause a Default or Event of Default or have a Material Adverse
Effect.
(f) Title to Properties; Liens; Title Insurance. As of the Agreement
Date, Part I of Schedule 6.1.(f) sets forth all of the real property owned or
leased by the Borrower, each other Loan Party and each other Subsidiary. Each
such Person has good, marketable and legal title to, or a valid leasehold
interest in, its respective assets. As of the Agreement Date, there are no Liens
against any assets of the Borrower, any Subsidiary or any other Loan Party
except for Permitted Liens. As to all or substantially all of the Senior Housing
Assets, the Borrower or a Subsidiary is the named insured under a policy of
title insurance issued by a title insurer licensed to do business in the
jurisdiction where such Senior Housing Asset is located. As to each such policy
of title insurance (i) the coverage amount equals or exceeds the acquisition
cost of the related Senior Housing Asset; (ii) exceptions to title do not
include any Liens, except for Permitted Liens and Liens that have been released
prior to the Effective Date; (iii) no claims are pending that, if adversely
determined, could reasonably be expected to have a Material Adverse Effect; and
(iv) no title insurer has given notice to the insured Person that such policy of
title insurance is no longer in effect. Except for Permitted Liens, neither
Borrower nor any Subsidiary has knowledge of any defect in title that could,
individually or in the aggregate, have a Material Adverse Effect.
(g) Existing Indebtedness. Schedule 6.1.(g) is, as of March 31, 2002, a
complete and correct listing of all Indebtedness of the Borrower and its
Subsidiaries, including without limitation, Guarantees of the Borrower and its
Subsidiaries, and indicating whether such Indebtedness is Secured Indebtedness
or Unsecured Indebtedness. During the period from such date to the Agreement
Date, neither the Borrower nor any Subsidiary incurred any material Indebtedness
except as set forth on such Schedule. The Borrower and its Subsidiaries have
performed and are in compliance with all of the terms of such Indebtedness and
all instruments and agreements relating thereto, and no default or event of
default, or event or condition which with the giving of notice, the lapse of
time, or both, would constitute such a default or event of default, exists with
respect to any such Indebtedness.
(h) Material Contracts and Leases and Ancillary Agreements. Schedule
6.1.(h) is, as of the Agreement Date, a true, correct and complete listing of
all Material Contracts, Leases and Ancillary Agreements. Each of the Borrower,
its Subsidiaries and the other Loan Parties that is a party to any Material
Contract is in compliance with all of the terms of such Material Contract, and
no default or event of default, or event or condition which with the giving of
notice, the lapse of time, or both, would constitute such a default or event of
default, exists with respect to any
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such Material Contract. All Lease Abstracts provided by the Borrower to the
Agent accurately summarize the relevant provisions of the Leases required to be
described therein, and such Lease Abstracts are correct in all material
respects.
(i) Litigation. Except as set forth on Schedule 6.1.(i), there are no
actions, suits or proceedings pending (nor, to the knowledge of the Borrower,
are there any actions, suits or proceedings threatened, nor is there any basis
therefor) against or in any other way relating adversely to or affecting the
Borrower, any Subsidiary or any other Loan Party or any of its respective
property in any court or before any arbitrator of any kind or before or by any
other Governmental Authority which could reasonably be expected to have a
Material Adverse Effect. There are no strikes, slow downs, work stoppages or
walkouts or other labor disputes in progress or threatened relating to the
Borrower, any Subsidiary or any other Loan Party which could reasonably be
expected to have a Material Adverse Effect.
(j) Taxes. All federal, state and other tax returns of the Borrower,
any Subsidiary or any other Loan Party required by Applicable Law to be filed
have been duly filed, and all federal, state and other taxes, assessments and
other governmental charges or levies upon the Borrower, any Subsidiary and each
other Loan Party and its respective properties, income, profits and assets which
are due and payable have been paid, except any such nonpayment which is at the
time permitted under Section 7.6. As of the Agreement Date, none of the United
States income tax returns of the Borrower, its Subsidiaries or any other Loan
Party is under audit. All charges, accruals and reserves on the books of the
Borrower and each of its Subsidiaries in respect of any taxes or other
governmental charges are in accordance with GAAP.
(k) Financial Statements. The Borrower has furnished to each Lender
copies of (i) the audited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries for the fiscal year ending December 31, 2001, and the
related audited consolidated statements of income, shareholders' equity and cash
flow for the fiscal year ending on such date, with the opinion thereon of Ernst
& Young LLP, and (ii) the unaudited consolidated balance sheet of the Borrower
and its consolidated Subsidiaries for the fiscal quarter ending March 31, 2002,
and the related consolidated statements of income, and cash flow for the fiscal
quarter ending on such date. Such financial statements (including in each case
related schedules and notes) are complete and correct and present fairly, in
accordance with GAAP consistently applied throughout the periods involved, the
consolidated financial position of the Borrower and its consolidated
Subsidiaries as at their respective dates and the results of operations and the
cash flow for such periods (subject, as to interim statements, to changes
resulting from normal year-end audit adjustments). Neither the Borrower nor any
of its Subsidiaries has on the Agreement Date any material contingent
liabilities, liabilities, liabilities for taxes, unusual or long-term
commitments or unrealized or forward anticipated losses from any unfavorable
commitments, except as referred to or reflected or provided for in said
financial statements or except as set forth on Schedule 6.1.(k).
(l) No Material Adverse Change. Since December 31, 2001, there has been
no material adverse change in the consolidated financial condition, results of
operations, business or prospects of the Borrower and its consolidated
Subsidiaries taken as a whole. Each of the Borrower, its Subsidiaries and the
other Loan Parties is Solvent.
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(m) ERISA. Each member of the ERISA Group is in compliance with its
obligations under the minimum funding standards of ERISA and the Internal
Revenue Code with respect to each Plan and is in compliance with the presently
applicable provisions of ERISA and the Internal Revenue Code with respect to
each Plan, except in each case for noncompliances which could not reasonably be
expected to have a Material Adverse Effect. As of the Agreement Date, no member
of the ERISA Group has (i) sought a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code in respect of any Plan, (ii) failed to
make any contribution or payment to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement, or made any amendment to any Plan or Benefit
Arrangement, which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security under ERISA or the Internal Revenue Code
or (iii) incurred any liability under Title IV of ERISA other than a liability
to the PBGC for premiums under Section 4007 of ERISA.
(n) Not Plan Assets; No Prohibited Transaction. None of the assets of
the Borrower, any Subsidiary or any other Loan Party constitute "plan assets"
within the meaning of ERISA, the Internal Revenue Code and the respective
regulations promulgated thereunder. The execution, delivery and performance of
this Agreement and the other Loan Documents, and the borrowing and repayment of
amounts hereunder, do not and will not constitute "prohibited transactions"
under ERISA or the Internal Revenue Code.
(o) Absence of Defaults. Neither the Borrower, any Subsidiary nor any
other Loan Party is in default under its Governing Documents, and no event has
occurred, which has not been remedied, cured or waived: (i) which constitutes a
Default or an Event of Default; or (ii) which constitutes, or which with the
passage of time, the giving of notice, a determination of materiality, the
satisfaction of any condition, or any combination of the foregoing, would
constitute, a default or event of default by the Borrower, any Subsidiary or any
other Loan Party under any agreement (other than this Agreement) or judgment,
decree or order to which the Borrower or any Subsidiary or other Loan Party is a
party or by which the Borrower or any Subsidiary or other Loan Party or any of
their respective properties may be bound where such default or event of default
could, individually or in the aggregate, have a Material Adverse Effect.
(p) Environmental Laws. Each of the Borrower, its Subsidiaries and the
other Loan Parties has obtained all Governmental Approvals which are required
under Environmental Laws and is in compliance with all terms and conditions of
such Governmental Approvals which the failure to obtain or to comply with could
reasonably be expected to have a Material Adverse Effect. Except for any of the
following matters that could not be reasonably expected to have a Material
Adverse Effect, (i) the Borrower is not aware of, and has not received notice
of, any past, present, or future events, conditions, circumstances, activities,
practices, incidents, actions, or plans which, with respect to the Borrower, its
Subsidiaries and each other Loan Party, may interfere with or prevent compliance
or continued compliance with Environmental Laws, or may give rise to any
common-law or legal liability, or otherwise form the basis of any claim, action,
demand, suit, proceeding, hearing, study, or investigation, based on or related
to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling or the emission, discharge, release or threatened release
into the environment, of any pollutant,
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contaminant, chemical, or industrial, toxic, or other Hazardous Material; and
(ii) there is no civil, criminal, or administrative action, suit, demand, claim,
hearing, notice, or demand letter, notice of violation, investigation, or
proceeding pending or, to the Borrower's knowledge after due inquiry,
threatened, against the Borrower, its Subsidiaries and each other Loan Party
relating in any way to Environmental Laws.
(q) Investment Company; Public Utility Holding Company. Neither the
Borrower nor any Subsidiary nor any other Loan Party is (i) an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended, (ii) a "holding company" or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", within the meaning
of the Public Utility Holding Company Act of 1935, as amended, or (iii) subject
to any other Applicable Law which purports to regulate or restrict its ability
to borrow money or to consummate the transactions contemplated by this Agreement
or to perform its obligations under any Loan Document to which it is a party.
(r) Margin Stock. Neither the Borrower, any Subsidiary nor any other
Loan Party is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose, whether immediate, incidental or
ultimate, of buying or carrying "margin stock" within the meaning of Regulation
U of the Board of Governors of the Federal Reserve System.
(s) Affiliate Transactions. Except as permitted by Section 9.10.,
neither the Borrower, any Subsidiary nor any other Loan Party is a party to or
bound by any agreement or arrangement (whether oral or written) to which any
Affiliate of the Borrower, any Subsidiary or any other Loan Party is a party.
(t) Intellectual Property. Each of the Borrower and each Subsidiary
owns or has the right to use, under valid license agreements or otherwise, all
material patents, licenses, franchises, trademarks, trademark rights, trade
names, trade name rights, trade secrets and copyrights (collectively,
"Intellectual Property") used in the conduct of its businesses as now conducted
and as contemplated by the Loan Documents, without known conflict with any
patent, license, franchise, trademark, trade secret, trade name, copyright, or
other proprietary right of any other Person, except for such Intellectual
Property, the absence of which, and for conflicts which, would not have a
Material Adverse Effect. The Borrower and each such Subsidiary have taken all
such steps as they deem reasonably necessary to protect their respective rights
under and with respect to such Intellectual Property. No material claim has been
asserted by any Person with respect to the use of any Intellectual Property by
the Borrower or any Subsidiary, or challenging or questioning the validity or
effectiveness of any Intellectual Property. The use of such Intellectual
Property by the Borrower, its Subsidiaries and the other Loan Parties, does not
infringe on the rights of any Person, subject to such claims and infringements
as do not, in the aggregate, give rise to any liabilities on the part of the
Borrower and its Subsidiaries that could reasonably be expected to have a
Material Adverse Effect.
(u) Business. As of the Agreement Date, the Borrower and its
Subsidiaries are engaged substantially in the business of the acquisition,
financing (including mortgage
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financing), and ownership of Senior Housing Assets and other businesses
activities incidental thereto.
(v) Broker's Fees. No broker's or finder's fee, commission or similar
compensation will be payable with respect to the transactions contemplated
hereby. No other similar fees or commissions will be payable by any Loan Party
for any other services rendered to the Borrower or any of its Subsidiaries
ancillary to the transactions contemplated hereby.
(w) Accuracy and Completeness of Information. No written information,
report or other papers or data (excluding financial projections and other
forward looking statements) furnished to the Agent or any Lender by, on behalf
of, or at the direction of, the Borrower, any Subsidiary or any other Loan Party
in connection with or relating in any way to this Agreement, contained any
untrue statement of a fact material to the creditworthiness of the Borrower, any
Subsidiary or any other Loan Party or omitted to state a material fact necessary
in order to make such statements contained therein, in light of the
circumstances under which they were made, not misleading. All financial
statements furnished to the Agent or any Lender by, on behalf of, or at the
direction of, the Borrower, any Subsidiary or any other Loan Party in connection
with or relating in any way to this Agreement, present fairly, in accordance
with GAAP consistently applied throughout the periods involved, the financial
position of the Persons involved as at the date thereof and the results of
operations for such periods. All financial projections and other forward looking
statements prepared by or on behalf of the Borrower, any Subsidiary or any other
Loan Party that have been or may hereafter be made available to the Agent or any
Lender were or will be prepared in good faith based on reasonable assumptions.
No fact is known to the Borrower which has had, or may in the future have (so
far as the Borrower can reasonably foresee), a Material Adverse Effect which has
not been set forth in the financial statements referred to in Section 6.1.(k) or
in such information, reports or other papers or data or otherwise disclosed in
writing to the Agent and the Lenders prior to the Effective Date.
(x) REIT Status. The Borrower qualifies, and has since 1999 qualified,
as a REIT and is in compliance with all requirements and conditions imposed
under the Internal Revenue Code to allow the Borrower to maintain its status as
a REIT.
(y) Unencumbered Assets. As of the Agreement Date, Schedule 6.1.(y) is
a correct and complete list of all Unencumbered Senior Housing Assets and
Unencumbered Mortgage Notes. Each of the Properties and promissory notes
included by the Borrower in calculations of Unencumbered Asset Value satisfies
all of the requirements contained in the definition of an Unencumbered Senior
Housing Asset and Unencumbered Mortgage Note, as applicable.
(z) Insurance. All Leases require the Lessees thereunder to maintain
with respect to the Senior Housing Assets commercially reasonable insurance with
financially sound and reputable insurance companies. As of the Agreement Date,
neither the Borrower nor any Subsidiary has received notice that any such
insurance has been cancelled, nonrenewed, or impaired in any way.
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Section 6.2. Survival of Representations and Warranties, Etc.
All statements contained in any certificate, financial statement or
other instrument delivered by or on behalf of the Borrower, any Subsidiary or
any other Loan Party to the Agent or any Lender pursuant to or in connection
with this Agreement or any of the other Loan Documents (including, but not
limited to, any such statement made in or in connection with any amendment
thereto or any statement contained in any certificate, financial statement or
other instrument delivered by or on behalf of the Borrower prior to the
Agreement Date and delivered to the Agent or any Lender in connection with
closing the transactions contemplated hereby) shall constitute representations
and warranties made by the Borrower under this Agreement. All representations
and warranties made under this Agreement and the other Loan Documents shall be
deemed to be made at and as of the Agreement Date, the Effective Date and the
date of the occurrence of any Credit Event, except to the extent that such
representations and warranties expressly relate solely to an earlier date (in
which case such representations and warranties shall have been true and accurate
on and as of such earlier date) and except for changes in factual circumstances
specifically permitted hereunder. All such representations and warranties shall
survive the effectiveness of this Agreement, the execution and delivery of the
Loan Documents and the making of the Loans and the issuance of the Letters of
Credit.
ARTICLE VII. AFFIRMATIVE COVENANTS
For so long as this Agreement is in effect, unless the Requisite
Lenders (or, if required pursuant to Section 12.6., all of the Lenders) shall
otherwise consent in the manner provided for in Section 12.6., the Borrower
shall comply with the following covenants:
Section 7.1. Preservation of Existence and Similar Matters.
Except as otherwise permitted under Section 9.7., the Borrower shall
preserve and maintain, and cause each Subsidiary and each other Loan Party to
preserve and maintain, its respective existence, rights, franchises, licenses
and privileges in the jurisdiction of its incorporation or formation and qualify
and remain qualified and authorized to do business in each jurisdiction in which
the character of its properties or the nature of its business requires such
qualification and authorization and where the failure to be so authorized and
qualified could reasonably be expected to have a Material Adverse Effect.
Section 7.2. Compliance with Applicable Law and Material Contracts.
The Borrower shall comply, and cause each Subsidiary and each other
Loan Party to comply, with (a) all Applicable Law, including the obtaining of
all Governmental Approvals, the failure with which to comply could reasonably be
expected to have a Material Adverse Effect, and (b) all material terms and
conditions of all Material Contracts to which it is a party.
Section 7.3. Maintenance of Property.
In addition to the requirements of any of the other Loan Documents, the
Borrower shall, and shall cause each Subsidiary and other Loan Party to, (a)
protect and preserve all of its material properties or cause to be protected and
preserved, and maintain or cause to be
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maintained in good repair, working order and condition all tangible properties,
ordinary wear and tear excepted, and (b) make or cause to be made all needed and
appropriate repairs, renewals, replacements and additions to such properties, so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times.
Section 7.4. Conduct of Business.
The Borrower shall at all times carry on, and cause its Subsidiaries
and the other Loan Parties to carry on, its respective businesses as described
in Section 6.1.(u).
Section 7.5. Insurance.
In addition to the requirements of any of the other Loan Documents, the
Borrower shall, and shall cause each Subsidiary and other Loan Party to,
maintain or cause to be maintained commercially reasonable insurance with
financially sound and reputable insurance companies, and from time to time
deliver to the Agent or any Lender upon its request a detailed list, together
with copies of all policies of the insurance then in effect, stating the names
of the insurance companies, the amounts and rates of the insurance, the dates of
the expiration thereof and the properties and risks covered thereby.
Section 7.6. Payment of Taxes and Claims.
The Borrower shall, and shall cause each Subsidiary and other Loan
Party to, pay and discharge or cause to be paid and discharged when due (a) all
taxes, assessments and governmental charges or levies imposed upon it or upon
its income or profits or upon any properties belonging to it, and (b) all lawful
claims of materialmen, mechanics, carriers, warehousemen and landlords for
labor, materials, supplies and rentals which, if unpaid, might become a Lien on
any properties of such Person; provided, however, that this Section shall not
require the payment or discharge of any such tax, assessment, charge, levy or
claim which is being contested in good faith by appropriate proceedings which
operate to suspend the collection thereof and for which adequate reserves have
been established on the books of the Borrower, such Subsidiary or such other
Loan Party, as applicable, in accordance with GAAP.
Section 7.7. Visits and Inspections.
The Borrower shall, and shall cause each Subsidiary and other Loan
Party to, permit representatives or agents of any Lender or the Agent, from time
to time after reasonable prior notice if no Event of Default shall be in
existence, as often as may be reasonably requested, but only during normal
business hours and at the expense of such Lender or the Agent (unless a Default
or Event of Default shall be continuing, in which case the exercise by the Agent
or such Lender of its rights under this Section shall be at the expense of the
Borrower), as the case may be, to: (a) visit and inspect all properties of the
Borrower or such Subsidiary or other Loan Party to the extent any such right to
visit or inspect is within the control of such Person; (b) inspect and make
extracts from their respective books and records, including but not limited to
management letters prepared by independent accountants; and (c) discuss with its
principal officers, and its independent accountants, its business, properties,
condition (financial or otherwise), results of operations and performance. If
requested by the Agent, the Borrower shall execute an
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authorization letter addressed to its accountants authorizing the Agent or any
Lender to discuss the financial affairs of the Borrower and any Subsidiary or
any other Loan Party with its accountants.
Section 7.8. Use of Proceeds; Letters of Credit.
The Borrower shall use the proceeds of all Loans and all Letters of
Credit for general business purposes only. The Borrower shall not, and shall not
permit any Subsidiary or other Loan Party to, use any part of such proceeds or
Letters of Credit to purchase or carry, or to reduce or retire or refinance any
credit incurred to purchase or carry, any margin stock (within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System) or to
extend credit to others for the purpose of purchasing or carrying any such
margin stock.
Section 7.9. Environmental Matters.
The Borrower shall, and shall cause all of its Subsidiaries and the
other Loan Parties to, comply or cause to be complied with, all Environmental
Laws the failure with which to comply could reasonably be expected to have a
Material Adverse Effect. If the Borrower, any Subsidiary or any other Loan Party
shall (a) receive notice that any violation of any Environmental Law may have
been committed or is about to be committed by such Person, (b) receive notice
that any administrative or judicial complaint or order has been filed or is
about to be filed against the Borrower, any Subsidiary or any other Loan Party
alleging violations of any Environmental Law or requiring the Borrower, any
Subsidiary or any other Loan Party to take any action in connection with the
release of Hazardous Materials or (c) receive any notice from a Governmental
Authority or private party alleging that the Borrower, any Subsidiary or any
other Loan Party may be liable or responsible for costs associated with a
response to or cleanup of a release of Hazardous Materials or any damages caused
thereby, and such notices, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, the Borrower shall provide the Agent
and each Lender with a copy of such notice within 30 days after the receipt
thereof by the Borrower, any Subsidiary or any other Loan Party. The Borrower
shall, and shall cause its Subsidiaries and the other Loan Parties to, take or
cause to be taken promptly all actions necessary to prevent the imposition of
any Liens on any of their respective properties arising out of or related to any
Environmental Laws.
Section 7.10. Books and Records.
The Borrower shall, and shall cause each of its Subsidiaries and the
other Loan Parties to, maintain books and records pertaining to its respective
business operations in such detail, form and scope as is consistent with good
business practice and in accordance with GAAP.
Section 7.11. Further Assurances.
The Borrower shall, at the Borrower's cost and expense and upon request
of the Agent, execute and deliver or cause to be executed and delivered, to the
Agent such further instruments, documents and certificates, and do and cause to
be done such further acts that may be reasonably necessary or advisable in the
reasonable opinion of the Agent to carry out more effectively the provisions and
purposes of this Agreement and the other Loan Documents.
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Section 7.12. New Subsidiaries/Guarantors.
(a) Requirement to Become Guarantor. Within 30 days of any Person
(other than an Excluded Subsidiary) becoming a Material Subsidiary after the
Effective Date, the Borrower shall deliver to the Agent each of the following
items, each in form and substance satisfactory to the Agent: (a) an Accession
Agreement executed by such Material Subsidiary and (b) the items that would have
been delivered under Sections 5.1.(a)(v) and (x) through (xiii) if such Material
Subsidiary had been one on the Effective Date; provided, however, promptly (and
in any event within 5 Business Days) upon any Excluded Subsidiary ceasing to be
subject to the restriction which prevented it from delivering an Accession
Agreement pursuant to this Section, such Subsidiary shall comply with the
provisions of this Section. The Agent shall send to each Lender copies of each
of the foregoing items once the Agent has received all such items with respect
to a Material Subsidiary.
(b) Release of a Guarantor. The Borrower may request in writing that
the Agent release, and upon receipt of such request the Agent shall release
(subject to the terms of the Guaranty), a Guarantor from the Guaranty so long
as: (i) such Guarantor meets, or will meet simultaneously with its release from
the Guaranty, all of the provisions of the definition of the term "Excluded
Subsidiary" or has ceased to be, or simultaneously with its release from the
Guaranty will cease to be, a Material Subsidiary; (ii) such Guarantor is not
otherwise required to be a party to the Guaranty under the immediately preceding
subsection (a); (iii) no Default or Event of Default shall then be in existence
or would occur as a result of such release, including without limitation, a
Default or Event of Default resulting from a violation of any of the covenants
contained in Section 9.1.; and (iv) the Agent shall have received such written
request at least 10 Business Days prior to the requested date of release.
Delivery by the Borrower to the Agent of any such request shall constitute a
representation by the Borrower that the matters set forth in the preceding
sentence (both as of the date of the giving of such request and as of the date
of the effectiveness of such request) are true and correct with respect to such
request.
Section 7.13. REIT Status.
The Borrower shall at all times maintain its status as a REIT.
Section 7.14. Exchange Listing.
The Borrower shall maintain at least one class of common shares of the
Borrower having trading privileges on the New York Stock Exchange or the
American Stock Exchange or which is the subject of price quotations in the
over-the-counter market as reported by the National Association of Securities
Dealers Automated Quotation System.
ARTICLE VIII. INFORMATION
For so long as this Agreement is in effect, unless the Requisite
Lenders (or, if required pursuant to Section 12.6., all of the Lenders) shall
otherwise consent in the manner set forth in Section 12.6., the Borrower shall
furnish to each Lender (or to the Agent if so provided below) at its Lending
Office:
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Section 8.1. Quarterly Financial Statements.
As soon as available and in any event within 45 days after the close of
each of the first, second and third fiscal quarters of the Borrower, the
unaudited consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such period and the related unaudited consolidated statements of
income, and cash flows of the Borrower and its Subsidiaries for such period,
setting forth in each case in comparative form the figures as of the end of and
for the corresponding periods of the previous fiscal year, all of which shall be
certified by the chief financial officer of the Borrower, in his or her opinion,
to present fairly, in accordance with GAAP as then in effect, the consolidated
financial position of the Borrower and its Subsidiaries as at the date thereof
and the results of operations for such period (subject to normal year-end audit
adjustments). Together with such financial statements, the Borrower shall
deliver a report, in form and detail satisfactory to the Agent, setting forth
(a) a statement of Funds From Operations for the fiscal quarter then ending; (b)
a listing of capital expenditures made by the Borrower or any Subsidiary during
the fiscal quarter then ended; and (c) a listing of all Senior Housing Assets
acquired during such fiscal quarter, including their minimum rent, net operating
income, cost and related mortgage debt, if any.
Section 8.2. Year-End Statements.
Within 90 days after the end of each fiscal year of the Borrower, the
audited consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such fiscal year and the related audited consolidated statements of
income, shareholders' equity and cash flows of the Borrower and its Subsidiaries
for such fiscal year, setting forth in comparative form the figures as at the
end of and for the previous fiscal year, all of which shall be certified by (a)
the chief financial officer of the Borrower, in his or her opinion, to present
fairly, in accordance with GAAP as then in effect, the consolidated financial
position of the Borrower and its Subsidiaries as at the date thereof and the
results of operations for such period and (b) independent certified public
accountants of recognized national standing, whose certificate shall be
unqualified and who shall have authorized the Borrower to deliver such financial
statements and certification thereof to the Agent and the Lenders pursuant to
this Agreement. Together with such financial statements, the Borrower shall
deliver a report, in form and detail reasonably satisfactory to the Agent,
setting forth (a) a statement of Funds From Operations for the fiscal year then
ending; (b) a listing of capital expenditures made by the Borrower or any
Subsidiary during such fiscal year; and (c) a listing of all Senior Housing
Assets acquired during such fiscal year, including their minimum rent, net
operating income, cost and related mortgage debt, if any.
Section 8.3. Compliance Certificate.
At the time financial statements are furnished pursuant to Sections
8.1. and 8.2., and within 10 Business Days of the Agent's request with respect
to any other fiscal period, a certificate substantially in the form of Exhibit J
(a "Compliance Certificate") executed by the chief financial officer of the
Borrower: (a) setting forth in reasonable detail as at the end of such quarterly
accounting period, fiscal year, or other fiscal period, as the case may be, the
calculations required to establish whether or not the Borrower was in compliance
with the covenants contained in Sections 9.1. through 9.3. and 9.6., and (b)
stating that, to the best of his
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or her knowledge, information and belief after due inquiry, no Default or Event
of Default exists, or, if such is not the case, specifying such Default or Event
of Default and its nature, when it occurred, whether it is continuing and the
steps being taken by the Borrower with respect to such event, condition or
failure. With each Compliance Certificate, Borrower shall also deliver a
certificate (an "Unencumbered Senior Housing Asset Certificate") executed by the
chief financial officer of the Borrower that: (i) sets forth a list of all
Unencumbered Senior Housing Assets and Unencumbered Mortgage Notes; and (ii)
certifies that all Unencumbered Senior Housing Assets and Unencumbered Mortgage
Notes so listed fully qualify as such under the applicable criteria for
inclusion as a Unencumbered Senior Housing Asset or Unencumbered Mortgage Note.
Together with each Compliance Certificate delivered with the financial
statements furnished pursuant to Sections 8.1. and 8.2., the Borrower also shall
provide information, to the extent obtained from tenants, indicating the
underlying occupancy, Property Net Operating Income and EBITDAR Ratio for each
Senior Housing Asset or Senior Housing Asset Pool, as the case may be, for the
fiscal quarter most recently ended.
Section 8.4. Other Information.
(a) Management Reports. Promptly upon receipt thereof, copies of all
management reports, if any, submitted to the Borrower or its Board of Trustees
by its independent public accountants;
(b) Securities Filings. Within 5 Business Days of the filing thereof,
copies of all registration statements (excluding the exhibits thereto (unless
requested by the Agent) and any registration statements on Form S-8 or its
equivalent), reports on Forms 10-K, 10-Q and 8-K (or their equivalents) and all
other periodic reports which the Borrower, any Subsidiary or any other Loan
Party shall file with the Securities and Exchange Commission (or any
Governmental Authority substituted therefor) or any national securities
exchange;
(c) Shareholder Information. Promptly upon the mailing thereof to the
shareholders of the Borrower generally, copies of all financial statements,
reports and proxy statements so mailed and promptly upon the issuance thereof
copies of all press releases issued by the Borrower, any Subsidiary or any other
Loan Party;
(d) ERISA. If and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
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notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security, a
certificate of the chief financial officer of the Borrower setting forth details
as to such occurrence and the action, if any, which the Borrower or applicable
member of the ERISA Group is required or proposes to take;
(e) Litigation. To the extent the Borrower or any Subsidiary is aware
of the same, prompt notice of the commencement of any proceeding or
investigation by or before any Governmental Authority and any action or
proceeding in any court or other tribunal or before any arbitrator against or in
any other way relating adversely to, or adversely affecting, the Borrower or any
Subsidiary or any of their respective properties, assets or businesses which
could reasonably be expected to have a Material Adverse Effect, and prompt
notice of the receipt of notice that any United States income tax returns of the
Borrower or any of its Subsidiaries are being audited;
(f) Modification of Governing Documents. A copy of any amendment to a
Governing Document of the Borrower or any other Loan Party promptly upon, and in
any event within 15 Business Days of, the effectiveness thereof;
(g) Change of Management or Financial Condition. Prompt notice of any
change in the senior management of the Borrower, any Subsidiary or any other
Loan Party and any change in the business, assets, liabilities, financial
condition, results of operations or business prospects of the Borrower, any
Subsidiary or any other Loan Party which has had or could reasonably be expected
to have Material Adverse Effect;
(h) Default. Notice of the occurrence of any of the following promptly
upon a Responsible Officer obtaining knowledge thereof: (i) any Default or Event
of Default or (ii) any event which constitutes or which with the passage of
time, the giving of notice, or otherwise, would constitute a default or event of
default by the Borrower, any Subsidiary or any other Loan Party under any
Material Contract, or any Lease or Ancillary Agreement relating to any
Unencumbered Senior Housing Asset, to which any such Person is a party or by
which any such Person or any of its respective properties may be bound;
(i) Judgments. Prompt notice of any order, judgment or decree in excess
of $5,000,000 having been entered against the Borrower, any Subsidiary or any
other Loan Party or any of their respective properties or assets;
(j) Notice of Violations of Law. Prompt notice if the Borrower, any
Subsidiary or any other Loan Party shall receive any notification from any
Governmental Authority alleging a violation of any Applicable Law or any inquiry
which could reasonably be expected to have a Material Adverse Effect;
(k) Material Subsidiary. Prompt notice of any Person becoming a
Material Subsidiary;
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(l) Material Asset Sales. Prompt notice of the sale, transfer or other
disposition of any material assets of the Borrower, any Subsidiary or any other
Loan Party to any Person other than the Borrower, any Subsidiary or any other
Loan Party;
(m) Material Contracts. Promptly upon (i) entering into any Material
Contract after the Agreement Date, a copy to the Agent of such Material
Contract, together with a copy of all related or ancillary documentation and
(ii) the giving or receipt thereof by the Borrower or any Subsidiary, notice
alleging that any party to any Material Contract, Unencumbered Mortgage Note, or
any Lease or Ancillary Agreement relating to an Unencumbered Senior Housing
Asset, is in default of its obligations thereunder;
(n) Financial Information Regarding Lessees and Mortgagors. If
requested by the Agent and available to the Borrower or any Subsidiary on a
nonconfidential basis, the Borrower shall deliver to the Agent the same reports
and information with respect to each mortgagor under any Unencumbered Mortgage
Note and with respect to each Lessee as is required by Sections 8.1. and 8.2.
with respect to the Borrower, except that: (i) every reference to the Borrower
and its Subsidiaries shall be deemed to refer to such material mortgagor or
Lessee; and (ii) the time periods within which the Borrower shall deliver such
reports as to material mortgagors and Lessees shall each be 30 days longer than
the time periods set forth in Sections 8.1. and 8.2.;
(o) Additions to Unencumbered Senior Housing Assets. In order to add
any Senior Housing Asset or Senior Housing Asset Pool to Unencumbered Senior
Housing Assets or add any promissory note to Unencumbered Mortgage Notes, the
Borrower must deliver to the Agent an Unencumbered Senior Housing Asset
Certificate reflecting such addition, together with a statement of: (i) the
acquisition cost of such Senior Housing Asset, Senior Housing Asset Pool, or
promissory note; and (ii) the same information that the Borrower would be
required to include in a Compliance Certificate. The Borrower shall provide the
Agent with Due Diligence Reports for any Senior Housing Asset or Senior Housing
Asset Pool added to Unencumbered Senior Housing Assets within 20 days of its
delivery to the Agent of the Unencumbered Senior Housing Asset Certificate that
added such Senior Housing Asset or Senior Housing Asset Pool to Unencumbered
Senior Housing Assets;
(p) Removals from Unencumbered Assets. Within 10 Business Days after
any Loan Party's disposition of any Unencumbered Senior Housing Asset or
Unencumbered Mortgage Note, or after any Unencumbered Senior Housing Asset or
Unencumbered Mortgage Note ceases to qualify as such, the Borrower shall deliver
to the Agent an Unencumbered Senior Housing Asset Certificate reflecting such
removal or disqualification, together with a statement of: (i) the identity of
the Unencumbered Senior Housing Asset or Unencumbered Mortgage Note being
disposed of or disqualified, and (ii) the Unencumbered Asset Value attributable
to such Unencumbered Senior Housing Asset or Unencumbered Mortgage Note. The
Borrower also may voluntarily remove any Senior Housing Asset or Senior Housing
Asset Pool from Unencumbered Senior Housing Assets or any promissory note from
Unencumbered Mortgage Notes by delivering to the Agent an Unencumbered Senior
Housing Asset Certificate reflecting such removal, together with a statement (a)
that no Default or Event of Default then exists or would, upon the occurrence of
such event or with the passage of time, result from such removal, and (b)
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of (i) the identity of the Unencumbered Senior Housing Asset or Unencumbered
Mortgage Note being removed, and (ii) the Unencumbered Asset Value attributable
to such Unencumbered Senior Housing Asset or Unencumbered Mortgage Note;
(q) Regulatory Matters. To the extent the Borrower or any Subsidiary is
aware of the same and only if the same could reasonably be expected to have a
Material Adverse Effect, prompt notice of the commencement of any proceeding or
investigation of a Lessee, any Unencumbered Senior Housing Asset or any Senior
Housing Asset securing an Unencumbered Mortgage Note, by or before any
Governmental Authority (including, without limitation, the United States Health
Care Financing Administration, the United States Department of Health and Human
Services, the United States Occupational Safety and Health Administration, or
any other federal, state or local agency responsible for health and safety
matters) or any accreditation body regarding alleged non-compliance with (i)
Medicare, Medicaid or any other federal, state or local hear care program or
(ii) federal, state or local health care licensing requirements; and
(r) Other Information. From time to time and promptly upon each
request, such data, certificates, reports, statements, opinions of counsel,
documents or further information regarding the business, assets, liabilities,
financial condition, results of operations or business prospects of the Borrower
or any of its Subsidiaries as the Agent or any Lender may reasonably request;
provided that neither the Borrower nor any Subsidiary shall have any obligation
to disclose to the Agent or any Lender any document, record, or other
information that constitutes individually identifiable health care information
the privacy or confidentiality of which is protected or the disclosure of which
is prohibited by the Health Insurance Portability and Accountability Act of
1996, or regulations adopted thereunder, as either may be amended, or by any
other federal or state law that protects the privacy or confidentiality of or
prohibits the disclosure of such information.
ARTICLE IX. NEGATIVE COVENANTS
For so long as this Agreement is in effect, unless the Requisite
Lenders (or, if required pursuant to Section 12.6., all of the Lenders) shall
otherwise consent in the manner set forth in Section 12.6., the Borrower shall
comply with the following covenants:
Section 9.1. Financial Covenants.
The Borrower shall not permit:
(a) Leverage Ratio. The ratio of (i) Total Indebtedness to (ii) Total
Asset Value, to exceed 0.55 to 1.00 at any time.
(b) Minimum Fixed Charge Coverage Ratio. The ratio of (i) Adjusted
EBITDA of the Borrower and its Subsidiaries determined on a consolidated basis
for the fiscal quarter most recently ending to (ii) Fixed Charges for such
period, to be less than 1.75 to 1.0 at any time.
(c) Secured Indebtedness. The ratio of (i) Secured Indebtedness of the
Borrower and its Subsidiaries to (ii) Total Asset Value, to be greater than 0.25
to 1.00 at any time. In addition, the Borrower will not permit the ratio of (x)
Secured Indebtedness (other than Nonrecourse
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Indebtedness) of the Borrower and its Subsidiaries to (y) Total Asset Value, to
be greater than 0.10 to 1.00 at any time.
(d) Unencumbered Leverage Ratio. The ratio of (i) Unencumbered Asset
Value to (ii) Unsecured Indebtedness of the Borrower and its Subsidiaries, to be
less than 2.0 to 1.0 at any time.
(e) Unencumbered Interest Coverage Ratio. The ratio of (i) Unencumbered
NOI to (ii) Unsecured Debt Service for the Borrower's fiscal quarter most
recently ending, to be less than 2.25 to 1.00 at any time.
(f) Minimum Tangible Net Worth. Tangible Net Worth at any time to be
less than (i) $700,000,000 plus (ii) 75% of the Net Proceeds of all Equity
Issuances effected by the Borrower or any Subsidiary (other than Equity
Issuances to the Borrower or any Subsidiary) after the Agreement Date.
(g) Floating Rate Debt. The aggregate principal amount of all
outstanding Floating Rate Debt to exceed 25% of Total Asset Value at any time.
(h) Total Assets Owned by Borrower and Guarantors. The amount of Total
Asset Value directly owned by the Borrower and the Guarantors to be less than
95.0% of Total Asset Value (excluding the amount of Total Asset Value, if any,
then attributable to Excluded Subsidiaries).
Section 9.2. Indebtedness.
The Borrower shall not, and shall not permit any Subsidiary or any
other Loan Party to, create, incur, assume, or permit or suffer to exist, any
Indebtedness other than the following:
(a) the Obligations;
(b) Indebtedness set forth on Schedule 6.1.(g);
(c) intercompany Indebtedness among the Borrower and its Wholly Owned
Subsidiaries; provided, however, that the obligations of the Borrower and each
Guarantor in respect of such intercompany Indebtedness shall be subordinate to
the Obligations; and
(d) any other Indebtedness of a type not described above in this
Section and created, incurred or assumed after the Agreement Date so long as
immediately prior to the creation, incurring or assumption thereof, and
immediately thereafter and after giving effect thereto, no Default or Event of
Default is or would be in existence, including without limitation, a Default or
Event of Default resulting from a violation of any of the covenants contained in
Section 9.1.
Section 9.3. Certain Permitted Investments.
The Borrower shall not, and shall not permit any Subsidiary or any
other Loan Party to, make any Investment in or otherwise own or hold the
following items which would cause the
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aggregate value of such holdings of the Borrower and such other Subsidiaries to
exceed 20.0% of Total Asset Value at any time:
(a) Investments in Persons which are not Subsidiaries (other
than Mortgage Notes);
(b) Assets Under Development measured by the aggregate
Construction Budget for all such Assets Under Development. For purposes
of this subsection, (i) "Construction Budget" means the fully-budgeted
costs for the acquisition and construction of a given piece of real
property (including without limitation, the cost of acquiring such
piece of real property, reserves for construction interest and
operating deficits, tenant improvements, leasing commissions, and
infrastructure costs) as reasonably determined by the Borrower in good
faith and (ii) real property under construction to be (but not yet)
acquired by the Borrower or a Subsidiary upon completion of
construction pursuant to a contract in which the seller of such real
property is required to complete construction prior to, and as a
condition precedent to, such acquisition, shall be subject to this
subsection; and
(c) Real property leased by the Borrower or any Subsidiary as
lessee pursuant to a ground lease, including any Ground Lease.
Section 9.4. Investments Generally.
The Borrower shall not, and shall not permit any Subsidiary or other
Loan Party to, directly or indirectly, acquire, make or purchase any Investment,
or permit any Investment of such Person to be outstanding on and after the
Agreement Date, other than the following:
(a) Investments in Subsidiaries in existence on the Agreement Date and
disclosed on Part I of Schedule 6.1.(b);
(b) Investments to acquire Equity Interests of a Subsidiary or any
other Person who after giving effect to such acquisition would be a Subsidiary,
so long as in each case (i) immediately prior to such Investment, and after
giving effect thereto, no Default or Event of Default is or would be in
existence and (ii) if such Subsidiary is (or after giving effect to such
Investment would become) a Material Subsidiary and is not an Excluded
Subsidiary, the terms and conditions set forth in Section 7.12. are satisfied;
(c) Investments permitted under Section 9.3.;
(d) Investments in Cash Equivalents;
(e) intercompany Indebtedness among the Borrower and its Wholly Owned
Subsidiaries provided that such Indebtedness is permitted by the terms of
Section 9.2.;
(f) loans and advances to officers and employees for moving,
entertainment, travel and other similar expenses in the ordinary course of
business consistent with past practices; and
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(g) any other Investment so long as immediately prior to making such
Investment, and immediately thereafter and after giving effect thereto, no
Default or Event of Default is or would be in existence, including without
limitation, a Default or Event of Default resulting from a violation of Section
7.4.
Section 9.5. Liens; Negative Pledges; Other Matters.
(a) The Borrower shall not, and shall not permit any Subsidiary or
other Loan Party to, create, assume, or incur any Lien (other than Permitted
Liens) upon any of its properties, assets, income or profits of any character
whether now owned or hereafter acquired if immediately prior to the creation,
assumption or incurring of such Lien, or immediately thereafter, a Default or
Event of Default is or would be in existence, including without limitation, a
Default or Event of Default resulting from a violation of any of the covenants
contained in Section 9.1.;
(b) The Borrower shall not, and shall not permit any Subsidiary or
other Loan Party to, enter into, assume or otherwise be bound by any Negative
Pledge except for a Negative Pledge contained in any agreement (i) evidencing
Indebtedness which the Borrower or such Subsidiary may create, incur, assume, or
permit or suffer to exist under Section 9.2.; (ii) which Indebtedness is secured
by a Lien permitted to exist and (iii) which prohibits the creation of any other
Lien on only the property securing such Indebtedness as of the date such
agreement was entered into;
(c) The Borrower shall not, and shall not permit any Subsidiary or
other Loan Party to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the ability
of any Subsidiary (other than an Excluded Subsidiary) to: (i) pay dividends or
make any other distribution on any of such Subsidiary's capital stock or other
equity interests owned by the Borrower or any Subsidiary; (ii) pay any
Indebtedness owed to the Borrower or any Subsidiary; (iii) make loans or
advances to the Borrower or any Subsidiary; or (iv) transfer any of its property
or assets to the Borrower or any Subsidiary.
Section 9.6. Restricted Payments.
The Borrower shall not, and shall not permit any Subsidiary or other
Loan Party to, declare or make any Restricted Payment; provided, however, that:
(a) the Borrower may declare or make cash distributions to its shareholders
during any fiscal year in an aggregate amount not to exceed the greater of (i)
the sum of (x) 90.0% of Funds From Operations of the Borrower for such period
plus (y) 25.0% of the cash Net Proceeds of Equity Issuances effected by the
Borrower or any Subsidiary during such period (other than Equity Issuances to
the Borrower or any Subsidiary), or (ii) the minimum amount necessary for the
Borrower to remain in compliance with Section 7.13.;
(b) the Borrower may make cash distributions to its shareholders of
capital gains resulting from gains from certain asset sales to the extent
necessary to avoid payment of taxes on such asset sales imposed under Sections
857(b)(3) and 4981 of the Internal Revenue Code; and
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(c) Subsidiaries may pay Restricted Payments to the Borrower or any
other Subsidiary.
Notwithstanding the foregoing, but subject to the following sentence, if a
Default or Event of Default shall have occurred and be continuing, the Borrower
may only declare or make cash distributions to its shareholders during any
fiscal year in an aggregate amount not to exceed the minimum amount necessary
for the Borrower to remain in compliance with Section 7.13. If a Default or
Event of Default specified in Section 10.1.(a), Section 10.1.(f) or Section
10.1.(g) shall have occurred and be continuing, or if as a result of the
occurrence of any other Event of Default the Obligations have been accelerated
pursuant to Section 10.2.(a), the Borrower shall not, and shall not permit any
Subsidiary or other Loan Party to, make any Restricted Payments to any Person
whatsoever other than to the Borrower or any Subsidiary.
Section 9.7. Merger, Consolidation, Sales of Assets and Other Arrangements.
The Borrower shall not, and shall not permit any Subsidiary or other
Loan Party to: (i) enter into any transaction of merger or consolidation; (ii)
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution); or (iii) convey, sell, lease, sublease, transfer or otherwise
dispose of, in one transaction or a series of transactions, all or any
substantial part of its business or assets, whether now owned or hereafter
acquired; provided, however, that:
(a) any of the actions described in the immediately preceding clauses
(i) through (iii) may be taken with respect to any Subsidiary or any other Loan
Party (other than the Borrower) so long as immediately prior to the taking of
such action, and immediately thereafter and after giving effect thereto, no
Default or Event of Default is or would be in existence;
(b) the Borrower, its Subsidiaries and the other Loan Parties may lease
and sublease their respective assets, as lessor or sublessor (as the case may
be), in the ordinary course of their business;
(c) a Person may merge with and into the Borrower so long as (i) the
Borrower is the survivor of such merger, (ii) immediately prior to such merger,
and immediately thereafter and after giving effect thereto, no Default or Event
of Default is or would be in existence; and (iii) the Borrower shall have given
the Agent and the Lenders at least 10 Business Days' prior written notice of
such merger (except that such prior notice shall not be required in the case of
the merger of a Subsidiary with and into the Borrower); and
(d) the Borrower and each Subsidiary may sell, transfer or dispose of
assets among themselves.
Section 9.8. Fiscal Year.
The Borrower shall not change its fiscal year from that in effect as of
the Agreement Date.
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Section 9.9. Modifications to Advisory Agreement and Other Material Contracts.
The Borrower shall not default in any material respect in the
performance of any of its obligations under the Advisory Agreement or permit the
Advisory Agreement to be canceled or terminated prior to its stated maturity.
The Borrower shall not enter into any material amendment, modification or waiver
of or with respect to any of the terms of the Advisory Agreement, except for
extensions thereof. With respect to Material Contracts other than the Advisory
Agreement, the Borrower shall not, and shall not permit any Subsidiary or other
Loan Party to, enter into any amendment or modification to any such Material
Contract which could reasonably be expected to have a Material Adverse Effect.
With respect to any Lease or Ancillary Agreement relating to any Unencumbered
Senior Housing Asset, the Borrower shall not, and shall not permit any
Subsidiary or other Loan Party to, enter into any amendment or modification to
any such agreement if (a) such amendment or modification could reasonably be
expected to have a Material Adverse Effect or (b) after giving pro forma effect
to such amendment or modification, a Default or Event of Default could
reasonably be expected to occur, including without limitation, a Default or
Event of Default resulting from a violation of any of the covenants contained in
Section 9.1. In connection with any amendment or modification to any Lease or
Ancillary Agreement relating to any Unencumbered Senior Housing Asset, the
Borrower shall deliver to the Agent, within 10 Business Days' of the Agent's
request, a Compliance Certificate calculated on a pro forma basis giving effect
to such amendment or modification.
Section 9.10. Transactions with Affiliates.
The Borrower shall not, and shall not permit any of its Subsidiaries or
any other Loan Party to, permit to exist or enter into, any transaction
(including the purchase, sale, lease or exchange of any property or the
rendering of any service) with any Affiliate, except transactions in the
ordinary course of and pursuant to the reasonable requirements of the business
of the Borrower or any of its Subsidiaries and upon fair and reasonable terms
which are no less favorable to the Borrower or such Subsidiary than would be
obtained in a comparable arm's length transaction with a Person that is not an
Affiliate.
Section 9.11. ERISA Exemptions.
The Borrower shall not, and shall not permit any Subsidiary to, permit
any of its respective assets to become or be deemed to be "plan assets" within
the meaning of ERISA, the Internal Revenue Code and the respective regulations
promulgated thereunder.
ARTICLE X. DEFAULT
Section 10.1. Events of Default.
Each of the following shall constitute an Event of Default, whatever
the reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of Applicable Law or pursuant to any judgment or order of
any Governmental Authority:
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(a) Default in Payment of Principal. The Borrower shall fail to pay
when due (whether upon demand, at maturity, by reason of acceleration or
otherwise) the principal of any of the Loans, or any Reimbursement Obligation.
(b) Default in Payment of Interest and Other Obligations. The Borrower
shall fail to pay when due any interest on any of the Loans or any of the other
payment Obligations owing by the Borrower under this Agreement or any other Loan
Document, or any other Loan Party shall fail to pay when due any payment
Obligation owing by such other Loan Party under any Loan Document to which it is
a party, and such failure shall continue for a period of 5 Business Days.
(c) Default in Performance. (i) The Borrower shall fail to perform or
observe any term, covenant, condition or agreement contained in Section 8.4.(h)
or in Article IX. or (ii) the Borrower or any other Loan Party shall fail to
perform or observe any term, covenant, condition or agreement contained in this
Agreement or any other Loan Document to which it is a party and not otherwise
mentioned in this Section and such failure shall continue for a period of 30
days after the earlier of (x) the date upon which a Responsible Officer of the
Borrower or such Loan Party obtains knowledge of such failure or (y) the date
upon which the Borrower has received written notice of such failure from the
Agent.
(d) Misrepresentations. Any written statement, representation or
warranty made or deemed made by or on behalf of the Borrower or any other Loan
Party under this Agreement or under any other Loan Document, or any amendment
hereto or thereto, or in any other writing or statement at any time furnished or
made or deemed made by or on behalf of the Borrower or any other Loan Party to
the Agent or any Lender, shall at any time prove to have been incorrect or
misleading, in light of the circumstances in which made or deemed made, in any
material respect when furnished or made or deemed made.
(e) Indebtedness Cross-Default.
(i) The Borrower, any Subsidiary or any other Loan Party shall
fail to pay when due and payable the principal of, or interest on, any
Indebtedness (other than the Obligations) having an aggregate
outstanding principal amount greater than or equal to (A) $10,000,000
in the case of Indebtedness that is not Nonrecourse Indebtedness or (B)
$20,000,000 in the case of Indebtedness that is Nonrecourse
Indebtedness (all such Indebtedness being "Material Indebtedness"); or
(ii) (x) The maturity of any Material Indebtedness shall have
been accelerated in accordance with the provisions of any indenture,
contract or instrument evidencing, providing for the creation of or
otherwise concerning such Material Indebtedness or (y) any Material
Indebtedness shall have been required to be prepaid or repurchased
prior to the stated maturity thereof; or
(iii) Any other event shall have occurred and be continuing
which, with or without the passage of time, the giving of notice, or
both, would permit any holder or holders of Material Indebtedness, any
trustee or agent acting on behalf of such holder or holders or any
other Person, to accelerate the maturity of any such Material
Indebtedness
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or require any such Material Indebtedness to be prepaid or repurchased
prior to its stated maturity.
(f) Voluntary Bankruptcy Proceeding. The Borrower, any other Loan Party
or any Subsidiary (other than (x) a Guarantor that, together with all other
Guarantors then subject to a bankruptcy proceeding or other proceeding or
condition described in this subsection or the immediately following subsection,
does not account for more than $10,000,000 of Total Asset Value, or (y) a
Subsidiary that, together with all other Subsidiaries then subject to a
bankruptcy proceeding or other proceeding or condition described in this
subsection or the immediately following subsection, does not account for more
than $20,000,000 of Total Asset Value) shall: (i) commence a voluntary case
under the Bankruptcy Code of 1978, as amended, or other federal bankruptcy laws
(as now or hereafter in effect); (ii) file a petition seeking to take advantage
of any other Applicable Laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or adjustment of debts;
(iii) consent to, or fail to contest in a timely and appropriate manner, any
petition filed against it in an involuntary case under such bankruptcy laws or
other Applicable Laws or consent to any proceeding or action described in the
immediately following subsection; (iv) apply for or consent to, or fail to
contest in a timely and appropriate manner, the appointment of, or the taking of
possession by, a receiver, custodian, trustee, or liquidator of itself or of a
substantial part of its property, domestic or foreign; (v) admit in writing its
inability to pay its debts as they become due; (vi) make a general assignment
for the benefit of creditors; (vii) make a conveyance fraudulent as to creditors
under any Applicable Law; or (viii) take any corporate or partnership action for
the purpose of effecting any of the foregoing.
(g) Involuntary Bankruptcy Proceeding. A case or other proceeding shall
be commenced against the Borrower, any other Loan Party or any Subsidiary (other
than (x) a Guarantor that, together with all other Guarantors then subject to a
bankruptcy proceeding or other proceeding or condition described in this
subsection or the immediately preceding subsection, does not account for more
than $10,000,000 of Total Asset Value, or (y) a Subsidiary that, together with
all other Subsidiaries then subject to a bankruptcy proceeding or other
proceeding or condition described in this subsection or the immediately
preceding subsection, does not account for more than $20,000,000 of Total Asset
Value) in any court of competent jurisdiction seeking: (i) relief under the
Bankruptcy Code of 1978, as amended, or other federal bankruptcy laws (as now or
hereafter in effect) or under any other Applicable Laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding-up, or composition
or adjustment of debts; or (ii) the appointment of a trustee, receiver,
custodian, liquidator or the like of such Person, or of all or any substantial
part of the assets, domestic or foreign, of such Person, and such case or
proceeding shall continue undismissed or unstayed for a period of 60 consecutive
calendar days, or an order granting the remedy or other relief requested in such
case or proceeding against the Borrower, such Subsidiary or such other Loan
Party (including, but not limited to, an order for relief under such Bankruptcy
Code or such other federal bankruptcy laws) shall be entered.
(h) Litigation; Enforceability. The Borrower or any other Loan Party
shall disavow, revoke or terminate (or attempt to terminate) any Loan Document
to which it is a party or shall otherwise challenge or contest in any action,
suit or proceeding in any court or before any
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Governmental Authority the validity or enforceability of this Agreement, any
Note or any other Loan Document or this Agreement, any Note, the Guaranty or any
other Loan Document shall cease to be in full force and effect (except as a
result of the express terms thereof).
(i) Judgment. A judgment or order for the payment of money or for an
injunction shall be entered against the Borrower, any Subsidiary or any other
Loan Party, by any court or other tribunal and (i) such judgment or order shall
continue for a period of 30 days without being paid, stayed or dismissed through
appropriate appellate proceedings and (ii) either (A) the amount of such
judgment or order (x) for which insurance has not been acknowledged in writing
by the applicable insurance carrier (or the amount as to which the insurer has
denied liability) or (y) not otherwise subject to indemnification or
reimbursement on reasonable terms and conditions by Persons reasonably likely to
honor such indemnification or reimbursement obligations, exceeds, individually
or together with all other such outstanding judgments or orders entered against
(1) the Borrower or any Guarantor, $10,000,000, or (2) any other Subsidiaries,
$20,000,000, or (B) in the case of an injunction or other non-monetary judgment,
such judgment could reasonably be expected to have a Material Adverse Effect.
(j) Attachment. A warrant, writ of attachment, execution or similar
process shall be issued against any property of the Borrower, any Subsidiary or
any other Loan Party which exceeds, individually or together with all other such
warrants, writs, executions and processes, (1) for the Borrower or any
Guarantor, $10,000,000, or (2) for any other Subsidiaries, $20,000,000, and such
warrant, writ, execution or process shall not be discharged, vacated, stayed or
bonded for a period of 30 days; provided, however, that if a bond has been
issued in favor of the claimant or other Person obtaining such warrant, writ,
execution or process, the issuer of such bond shall execute a waiver or
subordination agreement in form and substance satisfactory to the Agent pursuant
to which the issuer of such bond subordinates its right of reimbursement,
contribution or subrogation to the Obligations and waives or subordinates any
Lien it may have on the assets of any Loan Party.
(k) ERISA. Any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $10,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to terminate a
Material Plan shall be filed under Title IV of ERISA by any member of the ERISA
Group, any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or to cause a trustee to be appointed to administer, any Material Plan; or a
condition shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans
which could cause one or more members of the ERISA Group to incur a current
payment obligation in excess of $10,000,000.
(l) Loan Documents. An Event of Default (as defined therein) shall
occur under any of the other Loan Documents.
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(m) Change of Control.
(i) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) is or becomes the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a
Person will be deemed to have "beneficial ownership" of all securities
that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 15% of the total voting power of the then
outstanding voting stock of the Borrower; or
(ii) during any period of 12 consecutive months ending after
the Agreement Date, individuals who at the beginning of any such
12-month period constituted the Board of Trustees of the Borrower
(together with any new directors whose election by such Board or whose
nomination for election by the shareholders of the Borrower was
approved by a vote of a majority of the directors then still in office
who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of Directors of
the Borrower then in office;
(iii) RMR shall cease for any reason to act as the sole
investment advisor to the Borrower; or
(iv) any two of Xxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxx, Xxxxx X.
Xxxxxxx or Xxxx X. Xxxxxxx (or a substitute elected by the directors or
trustees of RMR or the Borrower, as the case may be, and which is
reasonably satisfactory to the Requisite Lenders) shall cease to serve
as an officer, director or trustee of RMR or the Borrower in a
position, in the case of an officer, of equal or greater seniority to
the respective offices each holds with RMR or the Borrower, as the case
may be as of the Agreement Date.
Section 10.2. Remedies Upon Event of Default.
Upon the occurrence of an Event of Default the following provisions
shall apply:
(a) Acceleration; Termination of Facilities.
(i) Automatic. Upon the occurrence of an Event of Default
specified in Sections 10.1.(f) or 10.1.(g), (A)(i) the principal of,
and all accrued interest on, the Loans and the Notes at the time
outstanding, (ii) an amount equal to the Stated Amount of all Letters
of Credit outstanding as of the date of the occurrence of such Event of
Default and (iii) all of the other Obligations of the Borrower,
including, but not limited to, the other amounts owed to the Lenders,
the Swingline Lender and the Agent under this Agreement, the Notes or
any of the other Loan Documents shall become immediately and
automatically due and payable by the Borrower without presentment,
demand, protest, or other notice of any kind, all of which are
expressly waived by the Borrower and (B) all of the Commitments, the
obligation of the Lenders to make Revolving Loans, the Swingline
Commitment, the obligation of the Swingline Lender to make Swingline
Loans, and the
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obligation of the Agent to issue Letters of Credit hereunder, shall all
immediately and automatically terminate.
(ii) Optional. If any other Event of Default shall have
occurred and be continuing, the Agent shall, at the direction of the
Requisite Lenders: (A) declare (1) the principal of, and accrued
interest on, the Loans and the Notes at the time outstanding, (2) an
amount equal to the Stated Amount of all Letters of Credit outstanding
as of the date of the occurrence of such other Event of Default and (3)
all of the other Obligations, including, but not limited to, the other
amounts owed to the Lenders and the Agent under this Agreement, the
Notes or any of the other Loan Documents to be forthwith due and
payable, whereupon the same shall immediately become due and payable
without presentment, demand, protest or other notice of any kind, all
of which are expressly waived by the Borrower and (B) terminate the
Commitments and the obligation of the Lenders to make Loans hereunder
and the obligation of the Agent to issue Letters of Credit hereunder.
Further, if the Agent has exercised any of the rights provided under
the preceding sentence, the Swingline Lender shall: (x) declare the
principal of, and accrued interest on, the Swingline Loans and the
Swingline Note at the time outstanding, and all of the other
Obligations owing to the Swingline Lender, to be forthwith due and
payable, whereupon the same shall immediately become due and payable
without presentment, demand, protest or other notice of any kind, all
of which are expressly waived by the Borrower and (y) terminate the
Swingline Commitment and the obligation of the Swingline Lender to make
Swingline Loans.
(b) Loan Documents. The Requisite Lenders may direct the Agent to, and
the Agent if so directed shall, exercise any and all of its rights under any and
all of the other Loan Documents.
(c) Applicable Law. The Requisite Lenders may direct the Agent to, and
the Agent if so directed shall, exercise all other rights and remedies it may
have under any Applicable Law.
(d) Appointment of Receiver. To the extent permitted by Applicable Law,
the Agent and the Lenders shall be entitled to the appointment of a receiver for
the assets and properties of the Borrower and its Subsidiaries, without notice
of any kind whatsoever and without regard to the adequacy of any security for
the Obligations or the solvency of any party bound for its payment, to take
possession of all or any portion of the business operations of the Borrower and
its Subsidiaries and to exercise such power as the court shall confer upon such
receiver.
Section 10.3. Remedies Upon Default.
Upon the occurrence of a Default specified in Sections 10.1.(f) or
10.1.(g), the Commitments shall immediately and automatically terminate.
Section 10.4. Allocation of Proceeds.
If an Event of Default shall have occurred and be continuing and
maturity of any of the Obligations has been accelerated, all payments received
by the Agent under any of the Loan Documents, in respect of any principal of or
interest on the Obligations or any other amounts
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payable by the Borrower hereunder or thereunder, shall be applied in the
following order and priority:
(a) amounts due to the Agent and the Lenders in respect of
fees and expenses due under Section 12.2.;
(b) payments of interest on Swingline Loans;
(c) payments of interest on all other Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders;
(d) payments of principal of Swingline Loans;
(e) payments of principal of all other Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders;
(f) amounts to be deposited into the Collateral Account in
respect of Letters of Credit;
(g) amounts due the Agent and the Lenders pursuant to Sections
11.7. and 12.9.;
(h) payments of all other amounts due and owing by the
Borrower under any of the Loan Documents, if any, to be applied for the
ratable benefit of the Lenders; and
(i) any amount remaining after application as provided above,
shall be paid to the Borrower or whomever else may be legally entitled
thereto.
Section 10.5. Collateral Account.
(a) As collateral security for the prompt payment in full when due of
all Letter of Credit Liabilities and the other Obligations, the Borrower hereby
pledges and grants to the Agent, for the benefit of the Agent and the Lenders as
provided herein, a security interest in all of its right, title and interest in
and to the Collateral Account and the balances from time to time in the
Collateral Account (including the investments and reinvestments therein provided
for below). The balances from time to time in the Collateral Account shall not
constitute payment of any Letter of Credit Liabilities until applied by the
Agent as provided herein. Anything in this Agreement to the contrary
notwithstanding, funds held in the Collateral Account shall be subject to
withdrawal only as provided in this Section and in Section 2.12.
(b) Amounts on deposit in the Collateral Account shall be invested and
reinvested by the Agent in such Cash Equivalents as the Agent shall determine in
its sole discretion. All such investments and reinvestments shall be held in the
name of and be under the sole dominion and control of the Agent. The Agent shall
exercise reasonable care in the custody and preservation of any funds held in
the Collateral Account and shall be deemed to have exercised such care if such
funds are accorded treatment substantially equivalent to that which the Agent
accords other funds deposited with the Agent, it being understood that the Agent
shall not have any
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responsibility for taking any necessary steps to preserve rights against any
parties with respect to any funds held in the Collateral Account.
(c) If an Event of Default shall have occurred and be continuing, the
Requisite Lenders may, in their discretion, at any time and from time to time,
instruct the Agent to liquidate any such investments and reinvestments and
credit the proceeds thereof to the Collateral Account and apply or cause to be
applied such proceeds and any other balances in the Collateral Account to the
payment of any of the Letter of Credit Liabilities due and payable.
(d) If (i) no Default or Event of Default has occurred and is
continuing and (ii) all of the Letter of Credit Liabilities have been paid in
full, the Agent shall, from time to time, at the request of the Borrower,
deliver to the Borrower, against receipt but without any recourse, warranty or
representation whatsoever, such of the balances in the Collateral Account as
exceed the aggregate amount of Letter of Credit Liabilities at such time.
(e) The Borrower shall pay to the Agent from time to time such fees as
the Agent normally charges for similar services in connection with the Agent's
administration of the Collateral Account and investments and reinvestments of
funds therein.
Section 10.6. Performance by Agent.
If the Borrower shall fail to perform any covenant, duty or agreement
contained in any of the Loan Documents, the Agent may perform or attempt to
perform such covenant, duty or agreement on behalf of the Borrower after the
expiration of any cure or grace periods set forth herein. In such event, the
Borrower shall, at the request of the Agent, promptly pay any amount reasonably
expended by the Agent in such performance or attempted performance to the Agent,
together with interest thereon at the applicable Post-Default Rate from the date
of such expenditure until paid. Notwithstanding the foregoing, neither the Agent
nor any Lender shall have any liability or responsibility whatsoever for the
performance of any obligation of the Borrower under this Agreement or any other
Loan Document.
Section 10.7. Rights Cumulative.
The rights and remedies of the Agent and the Lenders under this
Agreement and each of the other Loan Documents shall be cumulative and not
exclusive of any rights or remedies which any of them may otherwise have under
Applicable Law. In exercising their respective rights and remedies the Agent and
the Lenders may be selective and no failure or delay by the Agent or any of the
Lenders in exercising any right shall operate as a waiver of it, nor shall any
single or partial exercise of any power or right preclude its other or further
exercise or the exercise of any other power or right.
ARTICLE XI. THE AGENT
Section 11.1. Authorization and Action.
Each Lender hereby appoints and authorizes the Agent to take such
action as contractual representative on such Lender's behalf and to exercise
such powers under this Agreement and
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the other Loan Documents as are specifically delegated to the Agent by the terms
hereof and thereof, together with such powers as are reasonably incidental
thereto. Not in limitation of the foregoing, each Lender authorizes and directs
the Agent to enter into the Loan Documents for the benefit of the Lenders. Each
Lender hereby agrees that, except as otherwise set forth herein, any action
taken by the Requisite Lenders in accordance with the provisions of this
Agreement or the Loan Documents, and the exercise by the Requisite Lenders of
the powers set forth herein or therein, together with such other powers as are
reasonably incidental thereto, shall be authorized and binding upon all of the
Lenders. Nothing herein shall be construed to deem the Agent a trustee or
fiduciary for any Lender nor to impose on the Agent duties or obligations other
than those expressly provided for herein. At the request of a Lender, the Agent
will forward to such Lender copies or, where appropriate, originals of the
documents delivered to the Agent pursuant to this Agreement or the other Loan
Documents. The Agent will also furnish to any Lender, upon the request of such
Lender, a copy of any certificate or notice furnished to the Agent by the
Borrower, any Loan Party or any other Affiliate of the Borrower, pursuant to
this Agreement or any other Loan Document not already delivered to such Lender
pursuant to the terms of this Agreement or any such other Loan Document. As to
any matters not expressly provided for by the Loan Documents (including, without
limitation, enforcement or collection of any of the Obligations), the Agent
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Requisite Lenders
(or all of the Lenders if explicitly required under any other provision of this
Agreement), and such instructions shall be binding upon all Lenders and all
holders of any of the Obligations; provided, however, that, notwithstanding
anything in this Agreement to the contrary, the Agent shall not be required to
take any action which exposes the Agent to personal liability or which is
contrary to this Agreement or any other Loan Document or Applicable Law. Not in
limitation of the foregoing, the Agent shall not exercise any right or remedy it
or the Lenders may have under any Loan Document upon the occurrence of a Default
or an Event of Default unless the Requisite Lenders have so directed the Agent
to exercise such right or remedy.
Section 11.2. Agent's Reliance, Etc.
Notwithstanding any other provisions of this Agreement or any other
Loan Documents, neither the Agent nor any of its directors, officers, agents,
employees or counsel shall be liable for any action taken or omitted to be taken
by it or them under or in connection with this Agreement, except for its or
their own gross negligence or willful misconduct. Without limiting the
generality of the foregoing, the Agent: (a) may treat the payee of any Note as
the holder thereof until the Agent receives written notice of the assignment or
transfer thereof signed by such payee and in form satisfactory to the Agent; (b)
may consult with legal counsel (including its own counsel or counsel for the
Borrower or any other Loan Party), independent public accountants and other
experts reasonably selected by it and shall not be liable for any action taken
or omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (c) makes no warranty or representation to any
Lender or any other Person and shall not be responsible to any Lender or any
other Person for any statements, warranties or representations made by any
Person in or in connection with this Agreement or any other Loan Document; (d)
shall not have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of any of this Agreement
or any other Loan Document or the satisfaction of any conditions precedent under
this Agreement or any
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Loan Document on the part of the Borrower or other Persons or inspect the
property, books or records of the Borrower or any other Person; (e) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
Loan Document, any other instrument or document furnished pursuant thereto or
any collateral covered thereby or the perfection or priority of any Lien in
favor of the Agent on behalf of the Lenders in any such collateral; and (f)
shall incur no liability under or in respect of this Agreement or any other Loan
Document by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telephone or telecopy) believed by it to be genuine and
signed, sent or given by the proper party or parties.
Section 11.3. Notice of Defaults.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of a Default or Event of Default unless the Agent has received notice
from a Lender or the Borrower referring to this Agreement, describing with
reasonable specificity such Default or Event of Default and stating that such
notice is a "notice of default." If any Lender (excluding the Lender which is
also serving as the Agent) becomes aware of any Default or Event of Default, it
shall promptly send to the Agent such a "notice of default." Further, if the
Agent receives such a "notice of default", the Agent shall give prompt notice
thereof to the Lenders.
Section 11.4. Wachovia as Lender.
Wachovia, as a Lender, shall have the same rights and powers under this
Agreement and any other Loan Document as any other Lender and may exercise the
same as though it were not the Agent; and the term "Lender" or "Lenders" shall,
unless otherwise expressly indicated, include Wachovia in each case in its
individual capacity. Wachovia and its affiliates may each accept deposits from,
maintain deposits or credit balances for, invest in, lend money to, act as
trustee under indentures of, serve as financial advisor to, and generally engage
in any kind of business with, the Borrower, any other Loan Party or any other
affiliate thereof as if it were any other bank and without any duty to account
therefor to the other Lenders. Further, the Agent and any affiliate may accept
fees and other consideration from the Borrower for services in connection with
this Agreement and otherwise without having to account for the same to the other
Lenders.
Section 11.5. Approvals of Lenders.
All communications from the Agent to any Lender requesting such
Lender's determination, consent, approval or disapproval (a) shall be given in
the form of a written notice to such Lender, (b) shall be accompanied by a
description of the matter or issue as to which such determination, approval,
consent or disapproval is requested, or shall advise such Lender where
information, if any, regarding such matter or issue may be inspected, or shall
otherwise describe the matter or issue to be resolved, (c) shall include, if
reasonably requested by such Lender and to the extent not previously provided to
such Lender, written materials and a summary of all oral information provided to
the Agent by the Borrower in respect of the matter or issue to be resolved, and
(d) shall include the Agent's recommended course of action or determination in
respect thereof. Each Lender shall reply promptly, but in any event within 10
Business Days (or such lesser or greater period as may be specifically required
under the Loan Documents) of
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receipt of such communication. Except as otherwise provided in this Agreement
and except with respect to items requiring the unanimous consent or approval of
the Lenders under Section 12.6., unless a Lender shall give written notice to
the Agent that it specifically objects to the recommendation or determination of
the Agent (together with a written explanation of the reasons behind such
objection) within the applicable time period for reply, such Lender shall be
deemed to have conclusively approved of or consented to such recommendation or
determination.
Section 11.6. Lender Credit Decision, Etc.
Each Lender expressly acknowledges and agrees that neither the Agent
nor any of its officers, directors, employees, agents, counsel,
attorneys-in-fact or other affiliates has made any representations or warranties
as to the financial condition, operations, creditworthiness, solvency or other
information concerning the business or affairs of the Borrower, any other Loan
Party, any Subsidiary or any other Person to such Lender and that no act by the
Agent hereafter taken, including any review of the affairs of the Borrower,
shall be deemed to constitute any such representation or warranty by the Agent
to any Lender. Each Lender acknowledges that it has, independently and without
reliance upon the Agent, any other Lender or counsel to the Agent, or any of
their respective officers, directors, employees and agents, and based on the
financial statements of the Borrower, the Subsidiaries or any other Affiliate
thereof, and inquiries of such Persons, its independent due diligence of the
business and affairs of the Borrower, the Loan Parties, the Subsidiaries and
other Persons, its review of the Loan Documents, the legal opinions required to
be delivered to it hereunder, the advice of its own counsel and such other
documents and information as it has deemed appropriate, made its own credit and
legal analysis and decision to enter into this Agreement and the transaction
contemplated hereby. Each Lender also acknowledges that it will, independently
and without reliance upon the Agent, any other Lender or counsel to the Agent or
any of their respective officers, directors, employees and agents, and based on
such review, advice, documents and information as it shall deem appropriate at
the time, continue to make its own decisions in taking or not taking action
under the Loan Documents. Except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by the Agent under
this Agreement or any of the other Loan Documents, the Agent shall have no duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, financial and other condition or
creditworthiness of the Borrower, any other Loan Party or any other Affiliate
thereof which may come into possession of the Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or other Affiliates. Each Lender
acknowledges that the Agent's legal counsel in connection with the transactions
contemplated by this Agreement is only acting as counsel to the Agent and is not
acting as counsel to such Lender.
Section 11.7. Indemnification of Agent.
Each Lender agrees to indemnify the Agent (to the extent not reimbursed
by the Borrower and without limiting the obligation of the Borrower to do so)
pro rata in accordance with such Lender's respective Commitment Percentage, from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may at any time be imposed on, incurred by, or asserted
against the Agent (in its capacity as Agent but not as a Lender) in any way
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relating to or arising out of the Loan Documents, any transaction contemplated
hereby or thereby or any action taken or omitted by the Agent under the Loan
Documents (collectively, "Indemnifiable Amounts"); provided, however, that no
Lender shall be liable for any portion of such Indemnifiable Amounts to the
extent resulting from the Agent's gross negligence or willful misconduct or if
the Agent fails to follow the written direction of the Requisite Lenders unless
such failure is pursuant to the reasonable advice of counsel of which the
Lenders have received notice. Without limiting the generality of the foregoing
but subject to the preceding proviso, each Lender agrees to reimburse the Agent
(to the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so) promptly upon demand for its ratable share
of any out-of-pocket expenses (including reasonable counsel fees of the
counsel(s) of the Agent's own choosing) incurred by the Agent in connection with
the preparation, negotiation, execution, or enforcement of, or legal advice with
respect to the rights or responsibilities of the parties under, the Loan
Documents, any suit or action brought by the Agent to enforce the terms of the
Loan Documents and/or collect any Obligations, any "lender liability" suit or
claim brought against the Agent and/or the Lenders, and any claim or suit
brought against the Agent and/or the Lenders arising under any Environmental
Laws. Such out-of-pocket expenses (including reasonable counsel fees) shall be
advanced by the Lenders on the request of the Agent notwithstanding any claim or
assertion that the Agent is not entitled to full or partial indemnification
hereunder upon receipt of an undertaking by the Agent that the Agent will
reimburse the Lenders to the extent that it is actually and finally determined
by a court of competent jurisdiction that the Agent is not so entitled to
indemnification. The agreements in this Section shall survive the payment of the
Loans and all other amounts payable hereunder or under the other Loan Documents
and the termination of this Agreement. If the Borrower shall reimburse the Agent
for any Indemnifiable Amount following payment by any Lender to the Agent in
respect of such Indemnifiable Amount pursuant to this Section, the Agent shall
share such reimbursement on a ratable basis with each Lender making any such
payment.
Section 11.8. Successor Agent.
The Agent may resign at any time as Agent under the Loan Documents by
giving written notice thereof to the Lenders and the Borrower. The Agent may be
removed as Agent under the Loan Documents for good cause by the Supermajority
Lenders (determined without regard to the Lender then acting as Agent) upon 30
days' prior notice. Upon any such resignation or removal, the Requisite Lenders
(other than the Lender then acting as Agent, in the case of the removal of the
Agent under the immediately preceding sentence) shall have the right to appoint
a successor Agent which appointment shall, provided no Default or Event of
Default shall have occurred and be continuing, be subject to the Borrower's
approval, which approval shall not be unreasonably withheld or delayed (except
that the Borrower shall, in all events, be deemed to have approved each Lender
and its affiliates as a successor Agent). If no successor Agent shall have been
so appointed in accordance with the immediately preceding sentence, and shall
have accepted such appointment, within 30 days after the resigning Agent's
giving of notice of resignation or the Lenders' removal of the resigning Agent,
then the resigning or removed Agent may, on behalf of the Lenders, appoint a
successor Agent, which shall be a Lender, if any Lender shall be willing to
serve, and otherwise shall be a commercial bank having total combined assets of
at least $50,000,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged
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from its duties and obligations under the Loan Documents. After any Agent's
resignation or removal hereunder as Agent, the provisions of this Article XI.
shall continue to inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under the Loan Documents.
Section 11.9. Titled Agents.
Each of the Titled Agents in each such respective capacity, assumes no
responsibility or obligations hereunder, including, without limitation, for
servicing enforcement or collection of any of the Loans, nor any duties as an
agent hereunder for the Lenders. The titles of "Joint Lead Arranger", "Sole Book
Runner", "Syndication Agent" and "Documentation Agent" are solely honorific and
imply no fiduciary responsibility on the part of the Titled Agents to the Agent,
the Borrower or any Lender and the use of such titles does not impose on the
Titled Agents any duties or obligations greater than those of any other Lender
or entitle the Titled Agents to any rights other than those to which any other
Lender is entitled.
ARTICLE XII. MISCELLANEOUS
Section 12.1. Notices.
Unless otherwise provided herein, communications provided for hereunder
shall be in writing and shall be mailed, telecopied or delivered as follows:
If to the Borrower:
Senior Housing Properties Trust
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
If to the Agent:
Wachovia Bank, National Association
One Wachovia Center, NC0172
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxx X. Xxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
If to a Lender:
To such Lender's address or telecopy number, as applicable,
set forth on its signature page hereto or in the applicable
Assignment and Acceptance Agreement.
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or, as to each party at such other address as shall be designated by such party
in a written notice to the other parties delivered in compliance with this
Section. All such notices and other communications shall be effective (i) if
mailed, when received; (ii) if telecopied, when transmitted; or (iii) if hand
delivered, when delivered. Notwithstanding the immediately preceding sentence,
all notices or communications to the Agent or any Lender under Article II. shall
be effective only when actually received. Neither the Agent nor any Lender shall
incur any liability to the Borrower (nor shall the Agent incur any liability to
the Lenders) for acting upon any telephonic notice referred to in this Agreement
which the Agent or such Lender, as the case may be, believes in good faith to
have been given by a Person authorized to deliver such notice or for otherwise
acting in good faith hereunder.
Section 12.2. Expenses.
The Borrower agrees (a) to pay or reimburse the Agent for all of its
reasonable out-of-pocket costs and expenses incurred in connection with the
preparation, negotiation and execution of, and any amendment, supplement or
modification to, any of the Loan Documents (including due diligence expenses and
travel expenses relating to closing), and the consummation of the transactions
contemplated thereby, including the reasonable fees and disbursements of counsel
to the Agent, (b) to pay or reimburse the Agent and the Lenders for all their
costs and expenses incurred in connection with the enforcement or preservation
of any rights under the Loan Documents, including the reasonable fees and
disbursements of their respective counsel (including the allocated fees and
expenses of in-house counsel) and any payments in indemnification or otherwise
payable by the Lenders to the Agent pursuant to the Loan Documents, (c) to pay,
and indemnify and hold harmless the Agent and the Lenders from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any failure to pay or delay in paying, documentary, stamp, excise
and other similar taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of any of the Loan
Documents, or consummation of any amendment, supplement or modification of, or
any waiver or consent under or in respect of, any Loan Document and (d) to the
extent not already covered by any of the preceding subsections, to pay or
reimburse the Agent and the Lenders for all their costs and expenses incurred in
connection with any bankruptcy or other proceeding of the type described in
Sections 10.1.(f) or 10.1.(g), including the reasonable fees and disbursements
of counsel to the Agent and any Lender, whether such fees and expenses are
incurred prior to, during or after the commencement of such proceeding or the
confirmation or conclusion of any such proceeding. If the Borrower shall fail to
pay any amounts required to be paid by it pursuant to this Section, the Agent
and/or the Lenders may pay such amounts on behalf of the Borrower and either
deem the same to be Loans outstanding hereunder or otherwise Obligations owing
hereunder.
Section 12.3. Setoff.
Subject to Section 3.3. and in addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
the Agent, each Lender and each Participant is hereby authorized by the
Borrower, at any time or from time to time during the continuance of an Event of
Default, without prior notice to the Borrower or to any other Person, any such
notice being hereby expressly waived, but in the case of a Lender or Participant
subject to receipt of the prior written consent of the Agent exercised in its
sole discretion, to set
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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) and any other indebtedness at any time
held or owing by the Agent, such Lender or any affiliate of the Agent or such
Lender, to or for the credit or the account of the Borrower against and on
account of any of the Obligations, irrespective of whether or not any or all of
the Loans and all other Obligations have been declared to be, or have otherwise
become, due and payable as permitted by Section 10.2., and although such
obligations shall be contingent or unmatured. Promptly following any such
set-off the Agent shall notify the Borrower thereof and of the application of
such set-off, provided that the failure to give such notice shall not invalidate
such set-off.
Section 12.4. LITIGATION; JURISDICTION; OTHER MATTERS; WAIVERS.
(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY
BETWEEN OR AMONG THE BORROWER, THE AGENT OR ANY OF THE LENDERS WOULD BE BASED ON
DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY AND
EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH OF THE LENDERS, THE AGENT AND THE BORROWER HEREBY WAIVES ITS RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR
TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST ANY PARTY HERETO
ARISING OUT OF THIS AGREEMENT, THE NOTES, OR ANY OTHER LOAN DOCUMENT OR BY
REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER BETWEEN OR AMONG
THE BORROWER, THE AGENT OR ANY OF THE LENDERS OF ANY KIND OR NATURE.
(b) EACH OF THE BORROWER, THE AGENT AND EACH LENDER HEREBY AGREES THAT
THE FEDERAL DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK OR, AT THE
OPTION OF THE AGENT, ANY STATE COURT LOCATED IN NEW YORK, NEW YORK, SHALL HAVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG THE
BORROWER, THE AGENT OR ANY OF THE LENDERS, PERTAINING DIRECTLY OR INDIRECTLY TO
THIS AGREEMENT, THE LOANS AND LETTERS OF CREDIT, THE NOTES OR ANY OTHER LOAN
DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM. THE BORROWER AND EACH
OF THE LENDERS EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN
ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS. EACH PARTY FURTHER WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN
INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME. THE CHOICE OF
FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF
ANY ACTION BY THE AGENT OR ANY LENDER OR THE ENFORCEMENT BY THE AGENT OR ANY
LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE
JURISDICTION.
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(c) THE PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY
WITH THE ADVICE OF COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL
CONSEQUENCES THEREOF, AND SHALL SURVIVE THE PAYMENT OF THE LOANS AND ALL OTHER
AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS, THE TERMINATION OR
EXPIRATION OF ALL LETTERS OF CREDIT AND THE TERMINATION OF THIS AGREEMENT.
Section 12.5. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns, except that the Borrower may not assign or otherwise transfer any of
its rights or obligations under this Agreement without the prior written consent
of all Lenders and any such assignment or other transfer to which all of the
Lenders have not so consented shall be null and void.
(b) Any Lender may make, carry or transfer Loans at, to or for the
account of any of its branch offices or the office of an affiliate of such
Lender except to the extent such transfer would result in increased costs to the
Borrower.
(c) Any Lender may at any time grant to one or more banks or other
financial institutions (each a "Participant") participating interests in its
Commitment or the Obligations owing to such Lender; provided, however, (i) any
such participating interest must be for a constant and not a varying percentage
interest, (ii) no Lender may grant a participating interest in its Commitment,
or if the Commitments have been terminated, the aggregate outstanding principal
balance of Notes held by it, in an amount less than $5,000,000 and (iii) after
giving effect to any such participation by a Lender, the amount of its
Commitment, or if the Commitments have been terminated, the aggregate
outstanding principal balance of Notes held by it, in which it has not granted
any participating interests must be equal to $5,000,000 and integral multiples
of $1,000,000 in excess thereof. Except as otherwise provided in Section 12.3.,
no Participant shall have any rights or benefits under this Agreement or any
other Loan Document. In the event of any such grant by a Lender of a
participating interest to a Participant, such Lender shall remain responsible
for the performance of its obligations hereunder, and the Borrower and the Agent
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement. Any agreement
pursuant to which any Lender may grant such a participating interest shall
provide that such Lender shall retain the sole right and responsibility to
enforce the obligations of the Borrower hereunder including, without limitation,
the right to approve any amendment, modification or waiver of any provision of
this Agreement; provided, however, such Lender may agree with the Participant
that it will not, without the consent of the Participant, agree to (i) increase,
or extend the term or extend the time or waive any requirement for the reduction
or termination of, such Lender's Commitment, (ii) extend the date fixed for the
payment of principal of or interest on the Loans or portions thereof owing to
such Lender, (iii) reduce the amount of any such payment of principal, (iv)
reduce the rate at which interest is payable thereon or (v) release any
Guarantor (except as otherwise permitted under Section 7.12.(b)). An assignment
or other transfer which is not permitted by subsection (d) or (e) below shall be
given effect for purposes of this Agreement only to the extent of a
participating interest granted in
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accordance with this subsection (c). The selling Lender shall notify the Agent
and the Borrower of the sale of any participation hereunder and, if requested by
the Agent, certify to the Agent that such participation is permitted hereunder.
(d) Any Lender may with the prior written consent of the Agent and, so
long as no Default or Event of Default shall have occurred and be continuing,
the Borrower (which consent, in each case, shall not be unreasonably withheld or
delayed), assign to one or more Eligible Assignees (each an "Assignee") all or a
portion of its Commitment and its other rights and obligations under this
Agreement and the Notes; provided, however, (i) no such consent by the Borrower
shall be required in the case of any assignment to another Lender or any
affiliate of such Lender or another Lender and no such consent by the Agent
shall be required in the case of any assignment by a Lender to any affiliate of
such Lender; (ii) any partial assignment shall be in an amount at least equal to
$5,000,000 and integral multiples of $1,000,000 in excess thereof and after
giving effect to such assignment the assigning Lender retains a Commitment, or
if the Commitments have been terminated, holds Notes having an aggregate
outstanding principal balance, of at least $5,000,000 and integral multiples of
$1,000,000 in excess thereof; and (iii) each such assignment shall be effected
by means of an Assignment and Acceptance Agreement. Upon execution and delivery
of such instrument and payment by such Assignee to such transferor Lender of an
amount equal to the purchase price agreed between such transferor Lender and
such Assignee, such Assignee shall be deemed to be a Lender party to this
Agreement as of the effective date of the Assignment and Acceptance Agreement
and shall have all the rights and obligations of a Lender with a Commitment as
set forth in such Assignment and Acceptance Agreement, and the transferor Lender
shall be released from its obligations hereunder to a corresponding extent, and
no further consent or action by any party shall be required. Upon the
consummation of any assignment pursuant to this subsection (d), the transferor
Lender, the Agent and the Borrower shall make appropriate arrangements so that
new Notes are issued to the Assignee and such transferor Lender, as appropriate.
In connection with any such assignment (other than an assignment by a Lender to
an affiliate of such Lender), the transferor Lender shall pay to the Agent an
administrative fee for processing such assignment in the amount of $3,500.
(e) The Agent shall maintain at the Principal Office a copy of each
Assignment and Acceptance Agreement delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the
Commitment of each Lender from time to time (the "Register"). The Agent shall
give each Lender and the Borrower notice of the assignment by any Lender of its
rights as contemplated by this Section. The Borrower, the Agent and the Lenders
may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register and copies of each
Assignment and Acceptance Agreement shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice to the Agent. Upon its receipt of an Assignment and
Acceptance Agreement executed by an assigning Lender, together with each Note
subject to such assignment, the Agent shall, if such Assignment and Acceptance
Agreement has been completed and if the Agent receives the processing and
recording fee described in subsection (d) above, (i) accept such Assignment and
Acceptance Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower.
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(f) In addition to the assignments and participations permitted under
the foregoing provisions of this Section, any Lender may assign and pledge all
or any portion of its Loans and its Notes to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any Operating Circular issued
by such Federal Reserve Bank, and such Loans and Notes shall be fully
transferable as provided therein. No such assignment shall release the assigning
Lender from its obligations hereunder.
(g) A Lender may furnish any information concerning the Borrower, any
other Loan Party or any of their respective Subsidiaries or Affiliates in the
possession of such Lender from time to time to Assignees and Participants
(including prospective Assignees and Participants) subject to compliance with
Section 12.8.
(h) Anything in this Section to the contrary notwithstanding, no Lender
may assign or participate any interest in any Loan held by it hereunder to the
Borrower, any other Loan Party or any of their respective Affiliates or
Subsidiaries.
(i) Each Lender agrees that, without the prior written consent of the
Borrower and the Agent, it will not make any assignment hereunder in any manner
or under any circumstances that would require registration or qualification of,
or filings in respect of, any Loan or Note under the Securities Act or any other
securities laws of the United States of America or of any other jurisdiction.
Section 12.6. Amendments.
Except as otherwise expressly provided in this Agreement, any consent
or approval required or permitted by this Agreement or any other Loan Document
to be given by the Lenders may be given, and any term of this Agreement or of
any other Loan Document may be amended, and the performance or observance by the
Borrower or any other Loan Party or any Subsidiary of any terms of this
Agreement or such other Loan Document or the continuance of any Default or Event
of Default may be waived (either generally or in a particular instance and
either retroactively or prospectively) with, but only with, the written consent
of the Requisite Lenders (and, in the case of an amendment to any Loan Document,
the written consent of the Borrower). Notwithstanding the foregoing, no
amendment, waiver or consent shall, unless in writing, and signed by all of the
Lenders (or the Agent at the written direction of the Lenders), do any of the
following: (i) increase the Commitments of the Lenders (except as contemplated
by Section 2.14.) or subject the Lenders to any additional obligations; (ii)
reduce the principal of, or interest rates that have accrued or that will be
charged on the outstanding principal amount of, any Loans or Fees or other
Obligations; (iii) reduce the amount of any Fees payable hereunder; (iv)
postpone any date fixed for any payment of any principal of, or interest on, any
Loans or any other Obligations, or extend the expiration date of any Letter of
Credit beyond the Termination Date; (v) change the Commitment Percentages
(except as a result of any increase in the aggregate amount of the Commitments
contemplated by Section 2.14., 3.11.(b) or 4.5.) or amend or otherwise modify
the provisions of Section 3.2.; (vi) modify the definition of the term
"Requisite Lenders", "Supermajority Lenders", or, except as otherwise provided
in clauses (a) through (c) of the immediately following sentence, modify in any
other manner the number or percentage of the Lenders required to make any
determinations or waive any rights hereunder or
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to modify any provision hereof, including without limitation, any modification
of this Section if such modification would have such effect; (vii) release any
Guarantor from its obligations under the Guaranty (except as otherwise permitted
under Section 7.12.(b)); (viii) amend Section 9.1.(d) or waive any Default or
Event of Default occurring under Section 10.1.(c) resulting from a violation of
such Section; (ix) amend the definition of "Unencumbered Asset Value" (or any of
the definitions used in such definition for purposes of the use thereof in such
definition, or the percentages or rates used in the calculation thereof); or (x)
amend or otherwise modify the provisions of Section 2.13. In addition, no
amendment, waiver or consent shall, unless in writing, and signed by the
Supermajority Lenders (or the Agent at the written direction of the
Supermajority Lenders), do any of the following: (a) amend or otherwise modify
the provisions of, or waive any Event of Default occurring under, Section
10.1.(m); or (b) amend Section 9.1.(e) or waive any Default or Event of Default
occurring under Section 10.1.(c) resulting from a violation of such Section.
Further, no amendment, waiver or consent unless in writing and signed by the
Agent, in addition to the Lenders required hereinabove to take such action,
shall affect the rights or duties of the Agent under this Agreement or any of
the other Loan Documents. Any amendment, waiver or consent relating to Section
2.2. or the obligations of the Swingline Lender under this Agreement or any
other Loan Document shall, in addition to the Lenders required hereinabove to
take such action, require the written consent of the Swingline Lender. No waiver
shall extend to or affect any obligation not expressly waived or impair any
right consequent thereon and any amendment, waiver or consent shall be effective
only in the specific instance and for the specific purpose set forth therein. No
course of dealing or delay or omission on the part of the Agent or any Lender in
exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. Except as otherwise explicitly provided for herein or in
any other Loan Document, no notice to or demand upon the Borrower shall entitle
the Borrower to any other or further notice or demand in similar or other
circumstances.
Section 12.7. Nonliability of Agent and Lenders.
The relationship between the Borrower and the Lenders and the Agent
shall be solely that of borrower and lender. Neither the Agent nor any Lender
shall have any fiduciary responsibilities to the Borrower and no provision in
this Agreement or in any of the other Loan Documents, and no course of dealing
between or among any of the parties hereto, shall be deemed to create any
fiduciary duty owing by the Agent or any Lender to any Lender, the Borrower, any
Subsidiary or any other Loan Party. Neither the Agent nor any Lender undertakes
any responsibility to the Borrower to review or inform the Borrower of any
matter in connection with any phase of the Borrower's business or operations.
Section 12.8. Confidentiality.
Except as otherwise provided by Applicable Law, the Agent and each
Lender shall utilize all non-public information obtained pursuant to the
requirements of this Agreement which has been identified as confidential or
proprietary by the Borrower in accordance with its customary procedure for
handling confidential information of this nature and in accordance with safe and
sound banking practices but in any event may make disclosure: (a) to any of
their respective affiliates (provided they shall agree to keep such information
confidential in accordance with the terms of this Section); (b) as reasonably
requested by any bona fide Assignee, Participant or other transferee in
connection with the contemplated transfer of any Commitment or
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participations therein as permitted hereunder (provided they shall agree to keep
such information confidential in accordance with the terms of this Section); (c)
as required or requested by any Governmental Authority or representative thereof
or pursuant to legal process or in connection with any legal proceedings; (d) to
the Agent's or such Lender's independent auditors and other professional
advisors (provided they shall be notified of the confidential nature of the
information); (e) after the happening and during the continuance of an Event of
Default, to any other Person, in connection with the exercise by the Agent or
the Lenders of rights hereunder or under any of the other Loan Documents; and
(f) to the extent such information (x) becomes publicly available other than as
a result of a breach of this Section or (y) becomes available to the Agent or
any Lender on a nonconfidential basis from a source other than the Borrower or
any Affiliate.
Section 12.9. Indemnification.
(a) The Borrower shall and hereby agrees to indemnify, defend and hold
harmless the Agent, any affiliate of the Agent and each of the Lenders and their
respective directors, officers, shareholders, agents, employees and counsel
(each referred to herein as an "Indemnified Party") from and against any and all
losses, costs, claims, damages, liabilities, deficiencies, judgments or expenses
of every kind and nature (including, without limitation, amounts paid in
settlement, court costs and the fees and disbursements of counsel incurred in
connection with any litigation, investigation, claim or proceeding or any advice
rendered in connection therewith, but excluding losses, costs, claims, damages,
liabilities, deficiencies, judgments or expenses indemnification in respect of
which is specifically covered by Section 3.12. or 4.1. or expressly excluded
from the coverage of such Sections) incurred by an Indemnified Party in
connection with, arising out of, or by reason of, any suit, cause of action,
claim, arbitration, investigation or settlement, consent decree or other
proceeding (the foregoing referred to herein as an "Indemnity Proceeding") which
is in any way related directly or indirectly to: (i) this Agreement or any other
Loan Document or the transactions contemplated thereby; (ii) the making of any
Loans or issuance of Letters of Credit hereunder; (iii) any actual or proposed
use by the Borrower of the proceeds of the Loans or Letters of Credit; (iv) the
Agent's or any Lender's entering into this Agreement; (v) the fact that the
Agent and the Lenders have established the credit facility evidenced hereby in
favor of the Borrower; (vi) the fact that the Agent and the Lenders are
creditors of the Borrower and have or are alleged to have information regarding
the financial condition, strategic plans or business operations of the Borrower
and the Subsidiaries; (vii) the fact that the Agent and the Lenders are material
creditors of the Borrower and are alleged to influence directly or indirectly
the business decisions or affairs of the Borrower and the Subsidiaries or their
financial condition; (viii) the exercise of any right or remedy the Agent or the
Lenders may have under this Agreement or the other Loan Documents; provided,
however, that the Borrower shall not be obligated to indemnify any Indemnified
Party for any acts or omissions of such Indemnified Party in connection with
matters described in this clause (viii) to the extent that such acts or
omissions constitute gross negligence or willful misconduct; or (ix) any
violation or non-compliance by the Borrower or any Subsidiary of any Applicable
Law (including any Environmental Law) including, but not limited to, any
Indemnity Proceeding commenced by (A) the Internal Revenue Service or state
taxing authority or (B) any Governmental Authority or other Person under any
Environmental Law, including any Indemnity Proceeding commenced by a
Governmental Authority or other Person seeking remedial or other action to cause
the
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Borrower or its Subsidiaries (or its respective properties) (or the Agent and/or
the Lenders as successors to the Borrower) to be in compliance with such
Environmental Laws.
(b) The Borrower's indemnification obligations under this Section shall
apply to all Indemnity Proceedings arising out of, or related to, the foregoing
whether or not an Indemnified Party is a named party in such Indemnity
Proceeding. In this connection, this indemnification shall cover all costs and
expenses of any Indemnified Party in connection with any deposition of any
Indemnified Party or compliance with any subpoena (including any subpoena
requesting the production of documents). This indemnification shall, among other
things, apply to any Indemnity Proceeding commenced by other creditors of the
Borrower or any Subsidiary, any shareholder of the Borrower or any Subsidiary
(whether such shareholder(s) are prosecuting such Indemnity Proceeding in their
individual capacity or derivatively on behalf of the Borrower), any account
debtor of the Borrower or any Subsidiary or by any Governmental Authority.
(c) This indemnification shall apply to any Indemnity Proceeding
arising during the pendency of any bankruptcy proceeding filed by or against the
Borrower and/or any Subsidiary.
(d) All out-of-pocket fees and expenses of, and all amounts paid to
third-persons by, an Indemnified Party shall be advanced by the Borrower at the
request of such Indemnified Party notwithstanding any claim or assertion by the
Borrower that such Indemnified Party is not entitled to indemnification
hereunder upon receipt of an undertaking by such Indemnified Party that such
Indemnified Party will reimburse the Borrower if it is actually and finally
determined by a court of competent jurisdiction that such Indemnified Party is
not so entitled to indemnification hereunder.
(e) An Indemnified Party may conduct its own investigation and defense
of, and may formulate its own strategy with respect to, any Indemnified
Proceeding covered by this Section and, as provided above, all costs and
expenses incurred by such Indemnified Party shall be reimbursed by the Borrower.
No action taken by legal counsel chosen by an Indemnified Party in investigating
or defending against any such Indemnified Proceeding shall vitiate or in any way
impair the obligations and duties of the Borrower hereunder to indemnify and
hold harmless each such Indemnified Party; provided, however, that (i) if the
Borrower is required to indemnify an Indemnified Party pursuant hereto and (ii)
the Borrower has provided evidence reasonably satisfactory to such Indemnified
Party that the Borrower has the financial wherewithal to reimburse such
Indemnified Party for any amount paid by such Indemnified Party with respect to
such Indemnified Proceeding, such Indemnified Party shall not settle or
compromise any such Indemnified Proceeding without the prior written consent of
the Borrower (which consent shall not be unreasonably withheld or delayed).
(f) If and to the extent that the obligations of the Borrower hereunder
are unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under Applicable Law.
(g) The Borrower's obligations hereunder shall survive any termination
of this Agreement and the other Loan Documents and the payment in full in cash
of the Obligations,
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and are in addition to, and not in substitution of, any other of their
obligations set forth in this Agreement or any other Loan Document to which it
is a party.
Section 12.10. Termination; Survival.
At such time as (a) all of the Commitments have been terminated, (b)
all Letters of Credit have terminated, (c) none of the Lenders nor the Swingline
Lender is obligated any longer under this Agreement to make any Loans and (d)
all Obligations (other than obligations which survive as provided in the
following sentence) have been paid and satisfied in full, this Agreement shall
terminate. The indemnities to which the Agent, the Lenders and the Swingline
Lender are entitled under the provisions of Sections 3.12., 4.1., 4.4., 11.7.,
12.2. and 12.9. and any other provision of this Agreement and the other Loan
Documents, and the provisions of Section 12.4., shall continue in full force and
effect and shall protect the Agent, the Lenders and the Swingline Lender (i)
notwithstanding any termination of this Agreement, or of the other Loan
Documents, against events arising after such termination as well as before and
(ii) at all times after any such party ceases to be a party to this Agreement
with respect to all matters and events existing on or prior to the date such
party ceased to be a party to this Agreement.
Section 12.11. Severability of Provisions.
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective only to the
extent of such prohibition or unenforceability without invalidating the
remainder of such provision or the remaining provisions or affecting the
validity or enforceability of such provision in any other jurisdiction.
Section 12.12. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE
FULLY PERFORMED, IN SUCH STATE.
Section 12.13. Counterparts.
This Agreement and any amendments, waivers, consents or supplements may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all of which counterparts together shall constitute but
one and the same instrument.
Section 12.14. Obligations with Respect to Loan Parties.
The obligations of the Borrower to direct or prohibit the taking of
certain actions by the other Loan Parties as specified herein shall be absolute
and not subject to any defense the Borrower may have that the Borrower does not
control such Loan Parties.
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Section 12.15. Limitation of Liability.
Neither the Agent nor any Lender, nor any affiliate, officer, director,
employee, attorney, or agent of the Agent or any Lender shall have any liability
with respect to, and the Borrower hereby waives, releases, and agrees not to xxx
any of them upon, any claim for any special, indirect, incidental, or
consequential damages suffered or incurred by the Borrower in connection with,
arising out of, or in any way related to, this Agreement or any of the other
Loan Documents, or any of the transactions contemplated by this Agreement or any
of the other Loan Documents. The Borrower hereby waives, releases, and agrees
not to xxx the Agent or any Lender or any of the Agent's or any Lender's
affiliates, officers, directors, employees, attorneys, or agents for punitive
damages in respect of any claim in connection with, arising out of, or in any
way related to, this Agreement or any of the other Loan Documents, or any of the
transactions contemplated by this Agreement or financed hereby.
Section 12.16. Entire Agreement.
This Agreement, the Notes, and the other Loan Documents referred to
herein embody the final, entire agreement among the parties hereto and supersede
any and all prior commitments, agreements, representations, and understandings,
whether written or oral, relating to the subject matter hereof and thereof and
may not be contradicted or varied by evidence of prior, contemporaneous, or
subsequent oral agreements or discussions of the parties hereto. There are no
oral agreements among the parties hereto.
Section 12.17. Construction.
The Agent, the Borrower and each Lender acknowledge that each of them
has had the benefit of legal counsel of its own choice and has been afforded an
opportunity to review this Agreement and the other Loan Documents with its legal
counsel and that this Agreement and the other Loan Documents shall be construed
as if jointly drafted by the Agent, the Borrower and each Lender.
Section 12.18. LIABILITY OF TRUSTEES, ETC.
THE PARTIES HERETO ACKNOWLEDGE AND AGREE AS FOLLOWS:
THE AMENDED AND RESTATED DECLARATION OF TRUST ESTABLISHING THE
BORROWER, DATED SEPTEMBER 20, 1999, A COPY OF WHICH, TOGETHER WITH ALL
AMENDMENTS THERETO (THE "DECLARATION"), IS DULY FILED IN THE OFFICE OF THE STATE
DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND, PROVIDES THAT THE NAME
"SENIOR HOUSING PROPERTIES TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION
COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO
TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF THE BORROWER SHALL BE HELD
TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM
AGAINST, THE BORROWER. ALL PERSONS DEALING WITH THE BORROWER, IN ANY WAY, SHALL
LOOK ONLY TO THE ASSETS OF THE BORROWER FOR THE PAYMENT OF ANY SUM OR THE
PERFORMANCE OF ANY
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OBLIGATION. THE PROVISIONS OF THIS SECTION SHALL NOT LIMIT
ANY OBLIGATIONS OF ANY LOAN PARTY OTHER THAN THE BORROWER.
[Signatures on Following Pages]
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IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be executed by their authorized officers all as of the day and year
first above written.
BORROWER:
SENIOR HOUSING PROPERTIES TRUST
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Treasurer
Attest: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: President/Secretary
[Signatures Continued on Next Page]
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[Signature Page to Credit Agreement dated as of
June 27, 2002 with Senior Housing Properties Trust]
WACHOVIA BANK, NATIONAL ASSOCIATION, as
Agent, as a Lender and as Swingline Lender
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
Commitment Amount:
$82,000,000
Lending Office (all Types of Loans):
Wachovia Bank, National Association
Xxx Xxxxxxxx Xxxxxx, XX0000
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxx X. Xxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
[Signatures Continued on Next Page]
-97-
[Signature Page to Credit Agreement dated as of
June 27, 2002 with Senior Housing Properties Trust]
DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Vice President
Commitment Amount:
$40,000,000
Lending Office (all Types of Loans):
Dresdner Bank AG, New York and Grand
Cayman Branches
1301 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxx Xxxxxxx
Telecopier: 000-000-0000
Telephone: 000-000-0000
[Signatures Continued on Next Page]
-98-
[Signature Page to Credit Agreement dated as of
June 27, 2002 with Senior Housing Properties Trust]
ING CAPITAL LLC
By: /s/
Name:______________________________
Title: Vice President
Commitment Amount:
$50,000,000
Lending Office (all Types of Loans):
ING Capital LLC
1325 Avenue of the Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
[Signatures Continued on Next Page]
-99-
[Signature Page to Credit Agreement dated as of
June 27, 2002 with Senior Housing Properties Trust]
UBS AG, STAMFORD BRANCH
By: /s/ Xxxxxxx X. Saint
Name: Xxxxxxx X. Saint
Title: Associate Director
By: /s/ Xxxx Xxxxxxxxxxx
Name: Xxxx Xxxxxxxxxxx
Title: Associate Director
Commitment Amount:
$25,000,000
Lending Office (all Types of Loans):
UBS AG, Stamford Branch
000 Xxxxxxxxxx Xxxx.
0xx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Telecopier: 000-000-0000
Telephone: 000-000-0000
[Signatures Continued on Next Page]
-100-
[Signature Page to Credit Agreement dated as of
June 27, 2002 with Senior Housing Properties Trust]
CITIZENS BANK OF MASSACHUSETTS
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
Commitment Amount:
$28,000,000
Lending Office (all Types of Loans):
Citizens Bank of Massachusetts
28 State Street MS 1410
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx
Telecopier: 000-000-0000
Telephone: 000-000-0000
[Signatures Continued on Next Page]
-101-
[Signature Page to Credit Agreement dated as of
June 27, 2002 with Senior Housing Properties Trust]
KEY CORPORATE CAPITAL INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Commitment Amount:
$25,000,000
Lending Office (all Types of Loans):
Key Corporate Capital Inc.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Telecopier: 000-000-0000
Telephone: 000-000-0000
-102-
SCHEDULE 1.1.(a)
Pricing Tables
Table I -- Investment Grade Pricing
Borrower's Credit Rating Applicable Margin for Applicable Margin for Facility
Level (S&P/Xxxxx'x (other)) LIBOR Loans Base Rate Loans Fee
----------------------------------------------------------------------------------------------------------------
1 BBB+/Baa1 (or equivalent) or 1.00% 0.0% 0.20%
higher
----------------------------------------------------------------------------------------------------------------
2 BBB/Baa2 (or equivalent) 1.15% 0.0% 0.20%
----------------------------------------------------------------------------------------------------------------
3 BBB-/Baa3 (or equivalent) 1.30% 0.0% 0.20%
----------------------------------------------------------------------------------------------------------------
Table II -- Non-Investment Grade Pricing
Level Ratio of Total Indebtedness to Applicable Margin for Applicable Margin for Facility
Total Asset Value LIBOR Loans Base Rate Loans Fee
----------------------------------------------------------------------------------------------------------------
1 < 0.35 1.45% 0.0% 0.25%
----------------------------------------------------------------------------------------------------------------
2 > 0.35 but < 0.45 1.55% 0.0% 0.25%
-
----------------------------------------------------------------------------------------------------------------
3 > 0.45 1.65% 0.15% 0.25%
-
----------------------------------------------------------------------------------------------------------------
Schedule 1.1(b)
Documents Relating to the Liens on the
Acquired Encumbered Properties
[This schedule contains a list of documents relating to Liens on the Acquired
Encumbered Properties.]
Schedule 1.1(c)
Ground Leases
[This schedule includes a list of leases and lease documents which the Borrower
and certain of its Subsidiaries are subject to.]
Schedule 1.1(d)
List of All Loan Parties and Jurisdiction of Formation
[This schedule includes a list of the Borrower and the Guarantors indicating
their respective states of formation.]
Schedule 6.1(b)
Ownership Structure
[This schedule contains an organizational chart of the Borrower and its
subsidiaries.]
Schedule 6.1(f)
Title to Properties; Liens
[Part I of this schedule includes a list of properties owned or leased by the
Borrower, each other Loan Party and each other Subsidiary and then cross
references the list of unencumbered properties attached to Schedule 6.1(y).]
[Part II of this schedule lists Permitted Liens and cross references Schedule
1.1(b).]
Schedule 6.1(g)
Documents Evidencing Indebtedness
[This schedule contains a list of the Indebtedness of the Borrower excluding
Indebtedness under Leases and Ancillary Documents.]
Schedule 6.1(h)
Material Contracts
[Part I of this schedule lists all Material Contracts (excluding contracts and
agreements relating to indebtedness, leases and ancillary documents).]
[Part II of this schedule lists lease documents and ancillary documents.]
Schedule 6.1(i)
Litigation
None.
Schedule 6.1(k)
Certain Liabilities not disclosed on Financial Statements
None.
Schedule 6.1(y)
List of Unencumbered Assets
[This schedule contains a list of the unencumbered assets
and mortgage notes owned by the Borrower.]
EXHIBIT A
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
THIS ASSIGNMENT AND ACCEPTANCE AGREEMENT dated as of ____________, 200_
(the "Agreement") by and among (the "Assignor"), _______________________ (the
"Assignee"), and WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent (the "Agent").
WHEREAS, the Assignor is a Lender under that certain Credit Agreement
dated as of June 27, 2002 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), by and among Senior Housing
Properties Trust (the "Borrower"), the financial institutions party thereto and
their assignees under Section 12.5 thereof (the "Lenders"), the Agent, and the
other parties thereto;
WHEREAS, the Assignor desires to assign to the Assignee, among other
things, all or a portion of the Assignor's Commitment under the Credit
Agreement, all on the terms and conditions set forth herein; and
WHEREAS, the Agent consents to such assignment on the terms and
conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged by the parties hereto, the parties
hereto hereby agree as follows:
Section 1. Assignment.
(a) Subject to the terms and conditions of this Agreement and in
consideration of the payment to be made by the Assignee to the Assignor pursuant
to Section 2 of this Agreement, effective as of ________________, 200_ (the
"Assignment Date"), the Assignor hereby irrevocably sells, transfers and assigns
to the Assignee, without recourse, a $__________ interest (such interest being
the "Assigned Commitment") in and to the Assignor's Commitment and all of the
other rights and obligations of the Assignor under the Credit Agreement, such
Assignor's Revolving Note and the other Loan Documents (representing ______% in
respect of the aggregate amount of all Lenders' Commitments), including without
limitation, a principal amount of outstanding Revolving Loans equal to $_______
and all voting rights of the Assignor associated with the Assigned Commitment,
all rights to receive interest on such amount of Revolving Loans and all
commitment and other Fees with respect to the Assigned Commitment and other
rights of the Assignor under the Credit Agreement and the other Loan Documents
with respect to the Assigned Commitment, all as if the Assignee were an original
Lender under and signatory to the Credit Agreement having a Commitment equal to
the amount of the Assigned Commitment. The Assignee, subject to the terms and
conditions hereof, hereby assumes all obligations of the Assignor with respect
to the Assigned Commitment as if the Assignee were an original Lender under and
signatory to the Credit Agreement having a Commitment equal to the Assigned
Commitment, which obligations shall include, but shall not be limited to, the
obligation of the Assignor to make Revolving Loans to the Borrower with respect
to the Assigned Commitment, the obligation to pay the Agent amounts due in
respect of draws under Letters of Credit as required under Section 2.3 of the
Credit Agreement and the obligation to indemnify the Agent as provided therein
(the foregoing enumerated obligations, together with all other similar
A-1
obligations more particularly set forth in the Credit Agreement and the other
Loan Documents, shall be referred to hereinafter, collectively, as the "Assigned
Obligations"). The Assignor shall have no further duties or obligations with
respect to, and shall have no further interest in, the Assigned Obligations or
the Assigned Commitment from and after the Assignment Date.
(b) The assignment by the Assignor to the Assignee hereunder is without recourse
to the Assignor. The Assignee makes and confirms to the Agent, the Assignor, and
the other Lenders all of the representations, warranties and covenants of a
Lender under Article XI. of the Credit Agreement. Not in limitation of the
foregoing, the Assignee acknowledges and agrees that, except as set forth in
Section 4 below, the Assignor is making no representations or warranties with
respect to, and the Assignee hereby releases and discharges the Assignor for any
responsibility or liability for: (i) the present or future solvency or financial
condition of the Borrower, any Subsidiary or any other Loan Party, (ii) any
representations, warranties, statements or information made or furnished by the
Borrower, any Subsidiary or any other Loan Party in connection with the Credit
Agreement or otherwise, (iii) the validity, efficacy, sufficiency, or
enforceability of the Credit Agreement, any other Loan Document or any other
document or instrument executed in connection therewith, or the collectibility
of the Assigned Obligations, (iv) the perfection, priority or validity of any
Lien with respect to any collateral at any time securing the Obligations or the
Assigned Obligations under the Notes or the Credit Agreement and (v) the
performance or failure to perform by the Borrower or any other Loan Party of any
obligation under the Credit Agreement or any other Loan Document to which it is
a party. Further, the Assignee acknowledges that it has, independently and
without reliance upon the Agent, or on any affiliate or subsidiary thereof, the
Assignor or any other Lender and based on the financial statements supplied by
the Borrower and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to become a Lender under
the Credit Agreement. The Assignee also acknowledges that it will, independently
and without reliance upon the 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 or any other Loan Documents or pursuant to any other
obligation. Except as expressly provided in the Credit Agreement, the Agent
shall have no duty or responsibility whatsoever, either initially or on a
continuing basis, to provide the Assignee with any credit or other information
with respect to the Borrower or any other Loan Party or to notify the Assignee
of any Default or Event of Default. The Assignee has not relied on the Agent as
to any legal or factual matter in connection therewith or in connection with the
transactions contemplated thereunder.
Section 2. Payment by Assignee. In consideration of the assignment made
pursuant to Section 1 of this Agreement, the Assignee agrees to pay to the
Assignor on the Assignment Date, an amount equal to $________ representing (i)
the aggregate principal amount outstanding of the Loans owing to the Assignor
under the Credit Agreement and the other Loan Documents being assigned hereby
plus (ii) the aggregate amount of payments previously made by Assignor under
Section 2.3(j) of the Credit Agreement which have not been repaid and which are
being assigned hereby.
Section 3. Payments by Assignor. The Assignor agrees to pay to the
Agent on the Assignment Date the administration fee, if any, payable under the
applicable provisions of the Credit Agreement.
A-2
Section 4. Representations and Warranties of Assignor. The Assignor
hereby represents and warrants to the Assignee that (a) as of the Assignment
Date (i) the Assignor is a Lender under the Credit Agreement having a Commitment
under the Credit Agreement (without reduction by any assignments thereof which
have not yet become effective), equal to $ ________ and that the Assignor is not
in default of its obligations under the Credit Agreement; and (ii) the
outstanding balance of Revolving Loans owing to the Assignor (without reduction
by any assignments thereof which have not yet become effective) is $__________;
and (b) it is the legal and beneficial owner of the Assigned Commitment which is
free and clear of any adverse claim created by the Assignor.
Section 5. Representations, Warranties and Agreements of Assignee. The
Assignee (a) represents and warrants that it is (i) legally authorized to enter
into this Agreement, (ii) an "accredited investor" (as such term is used in
Regulation D of the Securities Act) and (iii) an Eligible Assignee; (b) confirms
that it has received a copy of the Credit Agreement, together with copies of the
most recent financial statements delivered pursuant thereto and such other
documents and information (including without limitation the Loan Documents) as
it has deemed appropriate to make its own credit analysis and decision to enter
into this Agreement; (c) appoints and authorizes the Agent to take such action
as contractual representative on its behalf and to exercise such powers under
the Loan Documents as are delegated to the Agent by the terms thereof together
with such powers as are reasonably incidental thereto; and (d) agrees that it
will become a party to and shall be bound by the Credit Agreement and the other
Loan Documents to which the other Lenders are a party on the Assignment Date and
will perform in accordance therewith all of the obligations which are required
to be performed by it as a Lender.
Section 6. Recording and Acknowledgment by the Agent. Following the
execution of this Agreement, the Assignor will deliver to the Agent (a) a duly
executed copy of this Agreement for acknowledgment and recording by the Agent
and (b) the Assignor's Revolving Note. Upon such acknowledgment and recording,
from and after the Assignment Date, the Agent shall make all payments in respect
of the interest assigned hereby (including payments of principal, interest, Fees
and other amounts) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Credit Agreement for periods prior
to the Assignment Date directly between themselves.
Section 7. Addresses. The Assignee specifies as its address for notices
and its Lending Office for all Loans, the offices set forth below:
Notice Address: ___________________________
___________________________
___________________________
Telephone No.: ____________
Telecopy No.: ____________
Lending Office: ___________________________
___________________________
___________________________
Telephone No.: ____________
Telecopy No.: ____________
A-3
Section 8. Payment Instructions. All payments to be made to the
Assignee under this Agreement by the Assignor, and all payments to be made to
the Assignee under the Credit Agreement, shall be made as provided in the Credit
Agreement in accordance with the following instructions:
___________________________
___________________________
Section 9. Effectiveness of Assignment. This Agreement, and the
assignment and assumption contemplated herein, shall not be effective until (a)
this Agreement is executed and delivered by each of the Assignor, the Assignee,
the Agent, and if required under Section 12.5.(d) of the Credit Agreement, the
Borrower, and (b) the payment to the Assignor of the amounts, if any, owing by
the Assignee pursuant to Section 2 hereof and (c) the payment to the Agent of
the amounts, if any, owing by the Assignor pursuant to Section 3 hereof. Upon
recording and acknowledgment of this Agreement by the Agent, from and after the
Assignment Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Agreement, have the rights and obligations of a
Lender thereunder and (ii) the Assignor shall, to the extent provided in this
Agreement, relinquish its rights (except as otherwise provided in Section 12.10
of the Credit Agreement) and be released from its obligations under the Credit
Agreement; provided, however, that if the Assignor does not assign its entire
interest under the Loan Documents, it shall remain a Lender entitled to all of
the benefits and subject to all of the obligations thereunder with respect to
its Commitment.
Section 10. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 11. Counterparts. This Agreement may be executed in any number
of counterparts each of which, when taken together, shall constitute one and the
same agreement.
Section 12. Headings. Section headings have been inserted herein for
convenience only and shall not he construed to be a part hereof.
Section 13. Amendments; Waivers. This Agreement may not be amended,
changed, waived or modified except by a writing executed by the Assignee and the
Assignor; provided, however, any amendment, waiver or consent which shall affect
the rights or duties of the Agent under this Agreement shall not be effective
unless signed by the Agent.
Section 14. Entire Agreement. This Agreement embodies the entire
agreement between the Assignor and the Assignee with respect to the subject
matter hereof and supersedes all other prior arrangements and understandings
relating to the subject matter hereof.
Section 15. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
A-4
Section 16. Definitions. Terms not otherwise defined herein are used
herein with the respective meanings given them in the Credit Agreement.
[Include this Section only if Borrower's consent is required under
Section 12.5(d)
Section 17. Agreements of the Borrower. The Borrower hereby agrees that
the Assignee shall be a Lender under the Credit Agreement having a Commitment
equal to the Assigned Commitment. The Borrower agrees that the Assignee shall
have all of the rights and remedies of a Lender under the Credit Agreement and
the other Loan Documents as if the Assignee were an original Lender under and
signatory to the Credit Agreement, including, but not limited to, the right of a
Lender to receive payments of principal and interest with respect to the
Assigned Obligations, and to the Revolving Loans made by the Lenders after the
date hereof and to receive the commitment and other Fees payable to the Lenders
as provided in the Credit Agreement. Further, the Assignee shall be entitled to
the indemnification provisions from the Borrower in favor of the Lenders as
provided in the Credit Agreement and the other Loan Documents. The Borrower
further agrees, upon the execution and delivery of this Agreement, to execute in
favor of the Assignee Notes as required by Section 12.5(d) of the Credit
Agreement. Upon receipt by the Assignor of the amounts due the Assignor under
Section 2, the Assignor agrees to surrender to the Borrower such Assignor's
Notes.]
[Signatures on Following Pages]
A-5
IN WITNESS WHEREOF, the parties hereto have duly executed this
Assignment and Acceptance Agreement as of the date and year first written above.
ASSIGNOR:
[NAME OF ASSIGNOR]
By:
----------------------------------------
Name:
---------------------------------
Title:
--------------------------------
ASSIGNEE:
[NAME OF ASSIGNEE]
By:
----------------------------------------
Name:
---------------------------------
Title:
--------------------------------
[Include signature of the Borrower only
if required under Section 12.5(d) of
the Credit Agreement]
Agreed and consented to as of the
date first written above.
BORROWER:
SENIOR HOUSING PROPERTIES TRUST
By:
--------------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
[Signatures Continued on Following Page]
A-6
Accepted as of the date first written above.
AGENT:
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Agent
By:
--------------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
A-7
EXHIBIT B
FORM OF GUARANTY
THIS GUARANTY dated as of June 27, 2002, executed and delivered by each
of the undersigned and the other Persons from time to time party hereto pursuant
to the execution and delivery of an Accession Agreement in the form of Annex I
hereto (all of the undersigned, together with such other Persons each a
"Guarantor" and collectively, the "Guarantors") in favor of (a) WACHOVIA BANK,
NATIONAL ASSOCIATION, in its capacity as Agent (the "Agent") for the Lenders
under that certain Credit Agreement dated as of June 27, 2002 (as amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"), by and among Senior Housing Properties Trust (the "Borrower"), the
financial institutions party thereto and their assignees under Section 12.5
thereof (the "Lenders"), the Agent, and the other parties thereto, and (b) the
Lenders and the Swingline Lender.
WHEREAS, pursuant to the Credit Agreement, the Agent, the Lenders and
the Swingline Lender have agreed to make available to the Borrower certain
financial accommodations on the terms and conditions set forth in the Credit
Agreement;
WHEREAS, the Borrower owns, directly or indirectly, at least a majority
of the issued and outstanding Equity Interests in each Guarantor;
WHEREAS, the Borrower and each of the Guarantors, though separate legal
entities, are mutually dependent on each other in the conduct of their
respective businesses as an integrated operation and have determined it to be in
their mutual best interests to obtain financing from the Agent, the Lenders and
the Swingline Lender through their collective efforts;
WHEREAS, each Guarantor acknowledges that it will receive direct and
indirect benefits from the Agent, the Lenders and the Swingline Lender making
such financial accommodations available to the Borrower under the Credit
Agreement and, accordingly, each Guarantor is willing to guarantee the
Borrower's obligations to the Agent, the Lenders and the Swingline Lender on the
terms and conditions contained herein; and
WHEREAS, each Guarantor's execution and delivery of this Guaranty is a
condition to the Agent and the Lenders making and continuing to make, such
financial accommodations to the Borrower.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each Guarantor, each Guarantor
agrees as follows:
Section 1. Guaranty. Each Guarantor hereby absolutely, irrevocably and
unconditionally guaranties the due and punctual payment and performance when
due, whether at stated maturity, by acceleration or otherwise, of all of the
following (collectively referred to as the "Guarantied Obligations"): (a) all
indebtedness and obligations owing by the Borrower to any Lender, the Swingline
Lender or the Agent under or in connection with the Credit Agreement and any
other Loan Document, including without limitation, the repayment of all
principal of the Revolving Loans, Swingline Loans and the Reimbursement
Obligations, and the payment of all interest, Fees, charges, attorneys' fees and
other amounts payable to any Lender or the Agent thereunder
B-1
or in connection therewith; (b) any and all extensions, renewals, modifications,
amendments or substitutions of the foregoing; (c) all expenses, including,
without limitation, reasonable attorneys' fees and disbursements, that are
incurred by the Lenders and the Agent in the enforcement of any of the foregoing
or any obligation of such Guarantor hereunder; and (d) all other Obligations.
Section 2. Guaranty of Payment and Not of Collection. This Guaranty is
a guaranty of payment, and not of collection, and a debt of each Guarantor for
its own account. Accordingly, none of the Lenders, the Swingline Lender or the
Agent shall be obligated or required before enforcing this Guaranty against any
Guarantor: (a) to pursue any right or remedy any of them may have against the
Borrower, any other Guarantor or any other Person or commence any suit or other
proceeding against the Borrower, any other Guarantor or any other Person in any
court or other tribunal; (b) to make any claim in a liquidation or bankruptcy of
the Borrower, any other Guarantor or any other Person; or (c) to make demand of
the Borrower, any other Guarantor or any other Person or to enforce or seek to
enforce or realize upon any collateral security held by the Lenders, the
Swingline Lender or the Agent which may secure any of the Guarantied
Obligations.
Section 3. Guaranty Absolute. Each Guarantor guarantees that the
Guarantied Obligations will be paid strictly in accordance with the terms of the
documents evidencing the same, regardless of any Applicable Law now or hereafter
in effect in any jurisdiction affecting any of such terms or the rights of the
Agent, the Lenders or the Swingline Lender with respect thereto. The liability
of each Guarantor under this Guaranty shall be absolute, irrevocable and
unconditional in accordance with its terms and shall remain in full force and
effect without regard to, and shall not be released, suspended, discharged,
terminated or otherwise affected by, any circumstance or occurrence whatsoever,
including without limitation, the following (whether or not such Guarantor
consents thereto or has notice thereof):
(a) (i) any change in the amount, interest rate or due date or other
term of any of the Guarantied Obligations, (ii) any change in the time, place or
manner of payment of all or any portion of the Guarantied Obligations, (iii) any
amendment or waiver of, or consent to the departure from or other indulgence
with respect to, the Credit Agreement, any other Loan Document, or any other
document or instrument evidencing or relating to any Guarantied Obligations, or
(iv) any waiver, renewal, extension, addition, or supplement to, or deletion
from, or any other action or inaction under or in respect of, the Credit
Agreement, any of the other Loan Documents, or any other documents, instruments
or agreements relating to the Guarantied Obligations or any other instrument or
agreement referred to therein or evidencing any Guarantied Obligations or any
assignment or transfer of any of the foregoing;
(b) any lack of validity or enforceability of the Credit Agreement, any
of the other Loan Documents, or any other document, instrument or agreement
referred to therein or evidencing any Guarantied Obligations or any assignment
or transfer of any of the foregoing;
(c) any furnishing to the Agent, the Lenders or the Swingline Lender of
any security for the Guarantied Obligations, or any sale, exchange, release or
surrender of, or realization on, any collateral securing any of the Obligations;
B-2
(d) any settlement or compromise of any of the Guarantied Obligations,
any security therefor, or any liability of any other party with respect to the
Guarantied Obligations, or any subordination of the payment of the Guarantied
Obligations to the payment of any other liability of the Borrower or any other
Loan Party;
(e) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to such
Guarantor, the Borrower, any other Loan Party or any other Person, or any action
taken with respect to this Guaranty by any trustee or receiver, or by any court,
in any such proceeding;
(f) any act or failure to act by the Borrower, any other Loan Party or
any other Person which may adversely affect such Guarantor's subrogation rights,
if any, against the Borrower to recover payments made under this Guaranty;
(g) any nonperfection or impairment of any security interest or other
Lien on any collateral, if any, securing in any way any of the Obligations;
(h) any application of sums paid by the Borrower, any other Guarantor
or any other Person with respect to the liabilities of the Borrower to the
Agent, the Lenders or the Swingline Lender, regardless of what liabilities of
the Borrower remain unpaid;
(i) any defect, limitation or insufficiency in the borrowing powers of
the Borrower or in the exercise thereof; or
(j) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, a Guarantor hereunder (other than indefeasible
payment in full).
Section 4. Action with Respect to Guarantied Obligations. The Lenders
and the Agent may, at any time and from time to time, without the consent of, or
notice to, any Guarantor, and without discharging any Guarantor from its
obligations hereunder, take any and all actions described in Section 3 and may
otherwise: (a) amend, modify, alter or supplement the terms of any of the
Guarantied Obligations, including, but not limited to, extending or shortening
the time of payment of any of the Guarantied Obligations or changing the
interest rate that may accrue on any of the Guarantied Obligations; (b) amend,
modify, alter or supplement the Credit Agreement or any other Loan Document; (c)
sell, exchange, release or otherwise deal with all, or any part, of any
collateral securing any of the Obligations; (d) release any other Loan Party or
other Person liable in any manner for the payment or collection of the
Guarantied Obligations; (e) exercise, or refrain from exercising, any rights
against the Borrower, any other Guarantor or any other Person: and (f) apply any
sum by whomsoever paid or however realized, to the Guarantied Obligations in
such order as the Lenders shall elect.
Section 5. Representations and Warranties. Each Guarantor hereby makes
to the Agent, the Lenders and the Swingline Lender all of the representations
and warranties made by the Borrower with respect to or in any way relating to
such Guarantor in the Credit Agreement and the other Loan Documents, as if the
same were set forth herein in full.
B-3
Section 6. Covenants. Each Guarantor will comply with all covenants
which the Borrower is to cause such Guarantor to comply with under the terms of
the Credit Agreement or any of the other Loan Documents.
Section 7. Waiver. Each Guarantor, to the fullest extent permitted by
Applicable Law, hereby waives notice of acceptance hereof or any presentment,
demand, protest or notice of any kind, and any other act or thing, or omission
or delay to do any other act or thing, which in any manner or to any extent
might vary the risk of such Guarantor or which otherwise might operate to
discharge such Guarantor from its obligations hereunder.
Section 8. Inability to Accelerate Loan. If the Agent, the Swingline
Lender and/or the Lenders are prevented under Applicable Law or otherwise from
demanding or accelerating payment of any of the Guarantied Obligations by reason
of any automatic stay or otherwise, the Agent, the Swingline Lender and/or the
Lenders shall be entitled to receive from each Guarantor, upon demand therefor,
the sums which otherwise would have been due had such demand or acceleration
occurred.
Section 9. Reinstatement of Guarantied Obligations. If claim is ever
made on the Agent, any Lender or the Swingline Lender for repayment or recovery
of any amount or amounts received in payment or on account of any of the
Guarantied Obligations, and the Agent, such Lender or the Swingline Lender
repays all or part of said amount by reason of (a) any judgment, decree or order
of any court or administrative body of competent jurisdiction, or (b) any
settlement or compromise of any such claim effected by the Agent, such Lender or
the Swingline Lender with any such claimant (including the Borrower or a trustee
in bankruptcy for the Borrower), then and in such event each Guarantor agrees
that any such judgment, decree, order, settlement or compromise shall be binding
on it, notwithstanding any revocation hereof, any release herefrom, or the
cancellation of the Credit Agreement, any of the other Loan Documents or any
other instrument evidencing any liability of the Borrower, and such Guarantor
shall be and remain liable to the Agent, such Lender or the Swingline Lender for
the amounts so repaid or recovered to the same extent as if such amount had
never originally been paid to the Agent, such Lender or the Swingline Lender.
Section 10. Subrogation. Upon the making by any Guarantor of any
payment hereunder for the account of the Borrower, such Guarantor shall be
subrogated to the rights of the payee against the Borrower; provided, however,
that such Guarantor shall not enforce any right or receive any payment by way of
subrogation or otherwise take any action in respect of any other claim or cause
of action such Guarantor may have against the Borrower arising by reason of any
payment or performance by such Guarantor pursuant to this Guaranty, unless and
until all of the Guarantied Obligations have been indefeasibly paid and
performed in full. If any amount shall be paid to such Guarantor on account of
or in respect of such subrogation rights or other claims or causes of action,
such Guarantor shall hold such amount in trust for the benefit of the Agent, the
Lenders and the Swingline Lender and shall forthwith pay such amount to the
Agent to be credited and applied against the Guarantied Obligations, whether
matured or unmatured, in accordance with the terms of the Credit Agreement or to
be held by the Agent as collateral security for any Guarantied Obligations
existing.
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Section 11. Payments Free and Clear. All sums payable by each Guarantor
hereunder, whether of principal, interest, Fees, expenses, premiums or
otherwise, shall be paid in full, without set-off or counterclaim or any
deduction or withholding whatsoever (including any Taxes), and if any Guarantor
is required by Applicable Law or by a Governmental Authority to make any such
deduction or withholding, such Guarantor shall pay to the Agent, the Lenders and
the Swingline Lender such additional amount as will result in the receipt by the
Agent, the Lenders and the Swingline Lender of the full amount payable hereunder
had such deduction or withholding not occurred or been required.
Section 12. Set-off. In addition to any rights now or hereafter granted
under any of the other Loan Documents or Applicable Law and not by way of
limitation of any such rights, each Guarantor hereby authorizes the Agent and
each Lender, at any time during the continuance of an Event of Default, without
any prior notice to such Guarantor or to any other Person, any such notice being
hereby expressly waived, but in the case of a Lender subject to receipt of the
prior written consent of the Agent exercised in its sole discretion, 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) and any other indebtedness at any time
held or owing by the Agent, such Lender, or any affiliate of the Agent or such
Lender, to or for the credit or the account of such Guarantor against and on
account of any of the Guarantied Obligations, although such obligations shall be
contingent or unmatured. Each Guarantor agrees, to the fullest extent permitted
by Applicable Law, that any Participant may exercise rights of setoff or
counterclaim and other rights with respect to its participation as fully as if
such Participant were a direct creditor of such Guarantor in the amount of such
participation.
Section 13. Subordination. Each Guarantor hereby expressly covenants
and agrees for the benefit of the Agent, the Lenders and the Swingline Lender
that all obligations and liabilities of the Borrower to such Guarantor of
whatever description, including without limitation, all intercompany receivables
of such Guarantor from the Borrower (collectively, the "Junior Claims") shall be
subordinate and junior in right of payment to all Guarantied Obligations. If an
Event of Default shall have occurred and be continuing, then no Guarantor shall
accept any direct or indirect payment (in cash, property or securities, by
setoff or otherwise) from the Borrower on account of or in any manner in respect
of any Junior Claim until all of the Guarantied Obligations have been
indefeasibly paid in full.
Section 14. Avoidance Provisions. It is the intent of each Guarantor,
the Agent, the Lenders and the Swingline Lender that in any Proceeding, such
Guarantor's maximum obligation hereunder shall equal, but not exceed, the
maximum amount which would not otherwise cause the obligations of such Guarantor
hereunder (or any other obligations of such Guarantor to the Agent, the Lenders
and the Swingline Lender) to be avoidable or unenforceable against such
Guarantor in such Proceeding as a result of Applicable Law, including without
limitation, (a) Section 548 of the Bankruptcy Code of 1978, as amended (the
"Bankruptcy Code") and (b) any state fraudulent transfer or fraudulent
conveyance act or statute applied in such Proceeding, whether by virtue of
Section 544 of the Bankruptcy Code or otherwise. The Applicable Laws under which
the possible avoidance or unenforceability of the obligations of such Guarantor
hereunder (or any other obligations of such Guarantor to the Agent, the Lenders
and the Swingline Lender) shall be determined in any such Proceeding are
referred to as the "Avoidance
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Provisions". Accordingly, to the extent that the obligations of any Guarantor
hereunder would otherwise be subject to avoidance under the Avoidance
Provisions, the maximum Guarantied Obligations for which such Guarantor shall be
liable hereunder shall be reduced to that amount which, as of the time any of
the Guarantied Obligations are deemed to have been incurred under the Avoidance
Provisions, would not cause the obligations of such Guarantor hereunder (or any
other obligations of such Guarantor to the Agent, the Lenders and the Swingline
Lender), to be subject to avoidance under the Avoidance Provisions. This Section
is intended solely to preserve the rights of the Agent, the Lenders and the
Swingline Lender hereunder to the maximum extent that would not cause the
obligations of any Guarantor hereunder to be subject to avoidance under the
Avoidance Provisions, and no Guarantor or any other Person shall have any right
or claim under this Section as against the Agent, the Lenders and the Swingline
Lender that would not otherwise be available to such Person under the Avoidance
Provisions.
Section 15. Information. Each Guarantor assumes all responsibility for
being and keeping itself informed of the financial condition of the Borrower and
the other Guarantors, and of all other circumstances bearing upon the risk of
nonpayment of any of the Guarantied Obligations and the nature, scope and extent
of the risks that such Guarantor assumes and incurs hereunder, and agrees that
none of the Agent, the Lenders or the Swingline Lender shall have any duty
whatsoever to advise any Guarantor of information regarding such circumstances
or risks.
Section 16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 17. WAIVER OF JURY TRIAL.
(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY
BETWEEN OR AMONG ANY GUARANTOR, THE AGENT OR ANY OF THE LENDERS WOULD BE BASED
ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY AND
EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH OF THE LENDERS, THE AGENT AND EACH GUARANTOR HEREBY WAIVES ITS RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR
TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST ANY PARTY HERETO
ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR BY REASON OF ANY
OTHER SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER BETWEEN OR AMONG THE BORROWER,
THE AGENT OR ANY OF THE LENDERS OF ANY KIND OR NATURE.
(b) EACH OF THE GUARANTORS, THE AGENT AND EACH LENDER HEREBY AGREES
THAT THE FEDERAL DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK OR, AT THE
OPTION OF THE AGENT, ANY STATE COURT LOCATED IN NEW YORK, NEW YORK, SHALL HAVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG ANY
GUARANTOR, THE AGENT OR ANY OF THE LENDERS, PERTAINING DIRECTLY OR INDIRECTLY
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TO THIS AGREEMENT, THE LOANS, THE LETTERS OF CREDIT, THE NOTES OR ANY OTHER LOAN
DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM. EACH GUARANTOR AND EACH
OF THE LENDERS EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN
ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS. EACH PARTY FURTHER WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN
INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME THE CHOICE OF
FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF
ANY ACTION BY THE AGENT OR ANY LENDER OR THE ENFORCEMENT BY THE AGENT OR ANY
LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE
JURISDICTION.
(c) THE PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY
WITH THE ADVICE OF COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL
CONSEQUENCES THEREOF, AND SHALL SURVIVE THE PAYMENT OF THE LOANS AND ALL OTHER
AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS AND THE TERMINATION
OF THIS GUARANTY.
Section 18. Loan Accounts. The Agent, each Lender and the Swingline
Lender may maintain books and accounts setting forth the amounts of principal,
interest and other sums paid and payable with respect to the Guarantied
Obligations, and in the case of any dispute relating to any of the outstanding
amount, payment or receipt of any of the Guarantied Obligations or otherwise,
the entries in such books and accounts shall be deemed prima facie evidence of
the amounts and other matters set forth herein. The failure of the Agent, any
Lender or the Swingline Lender to maintain such books and accounts shall not in
any way relieve or discharge any Guarantor of any of its obligations hereunder.
Section 19. Waiver of Remedies. No delay or failure on the part of the
Agent, any Lender or the Swingline Lender in the exercise of any right or remedy
it may have against any Guarantor hereunder or otherwise shall operate as a
waiver thereof, and no single or partial exercise by the Agent, any Lender or
the Swingline Lender of any such right or remedy shall preclude any other or
further exercise thereof or the exercise of any other such right or remedy.
Section 20. Termination. This Guaranty shall remain in full force and
effect until indefeasible payment in full of the Guarantied Obligations and the
other Obligations and the termination or cancellation of the Credit Agreement in
accordance with its terms.
Section 21. Successors and Assigns. Each reference herein to the Agent
or the Lenders shall be deemed to include such Person's respective successors
and assigns (including, but not limited to, any holder of the Guarantied
Obligations) in whose favor the provisions of this Guaranty also shall inure,
and each reference herein to each Guarantor shall be deemed to include such
Guarantor's successors and assigns, upon whom this Guaranty also shall be
binding. The Lenders and the Swingline Lender may, in accordance with the
applicable provisions of the Credit Agreement, assign, transfer or sell any
Guarantied Obligation, or grant
B-7
or sell participations in any Guarantied Obligations, to any Person without the
consent of, or notice to, any Guarantor and without releasing, discharging or
modifying any Guarantor's obligations hereunder. Each Guarantor hereby consents
to the delivery by the Agent or any Lender to any Assignee or Participant (or
any prospective Assignee or Participant) of any financial or other information
regarding the Borrower or any Guarantor. No Guarantor may assign or transfer its
obligations hereunder to any Person without the prior written consent of all
Lenders and any such assignment or other transfer to which all of the Lenders
have not so consented shall be null and void.
Section 22. JOINT AND SEVERAL OBLIGATIONS. THE OBLIGATIONS OF THE
GUARANTORS HEREUNDER SHALL BE JOINT AND SEVERAL, AND ACCORDINGLY, EACH GUARANTOR
CONFIRMS THAT IT IS LIABLE FOR THE FULL AMOUNT OF THE "GUARANTIED OBLIGATIONS"
AND ALL OF THE OBLIGATIONS AND LIABILITIES OF EACH OF THE OTHER GUARANTORS
HEREUNDER.
Section 23. Amendments. This Guaranty may not be amended except in
writing signed by the Requisite Lenders (or all of the Lenders if required under
the terms of the Credit Agreement), the Agent and each Guarantor.
Section 24. Payments. All payments to be made by any Guarantor pursuant
to this Guaranty shall be made in Dollars, in immediately available funds to the
Agent at the Principal Office, not later than 2:00 p.m. on the date of demand
therefor.
Section 25. Notices. All notices, requests and other communications
hereunder shall be in writing (including facsimile transmission or similar
writing) and shall be given (a) to each Guarantor at its address set forth below
its signature hereto, (b) to the Agent, any Lender or the Swingline Lender at
its respective address for notices provided for in the Credit Agreement, or (c)
as to each such party at such other address as such party shall designate in a
written notice to the other parties. Each such notice, request or other
communication shall be effective (i) if mailed, when received; (ii) if
telecopied, when transmitted; or (iii) if hand delivered, when delivered;
provided, however, that any notice of a change of address for notices shall not
be effective until received.
Section 26. Severability. In case any provision of this Guaranty shall
be invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 27. Headings. Section headings used in this Guaranty are for
convenience only and shall not affect the construction of this Guaranty.
Section 28. Trustees Etc. Not Liable.
IN THE CASE OF ANY GUARANTOR THAT IS A TRUST, NO TRUSTEE, OFFICER,
SHAREHOLDER, EMPLOYEE OR AGENT OF SUCH GUARANTOR SHALL BE HELD TO ANY PERSONAL
LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, SUCH
GUARANTOR. ALL PERSONS DEALING WITH SUCH GUARANTOR, IN ANY WAY, SHALL LOOK ONLY
TO THE ASSETS OF SUCH GUARANTOR FOR THE PAYMENT OF ANY SUM OR THE
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PERFORMANCE OF ANY OBLIGATION OWING BY SUCH GUARANTOR HEREUNDER. THE PROVISIONS
OF THIS SECTION SHALL NOT LIMIT ANY OBLIGATIONS OF ANY LOAN PARTY.
Section 29. Limitation of Liability.
Neither the Agent nor any Lender, nor any affiliate, officer, director,
employee, attorney, or agent of the Agent or any Lender, shall have any
liability with respect to, and each Guarantor hereby waives, releases, and
agrees not to xxx any of them upon, any claim for any special, indirect,
incidental, or consequential damages suffered or incurred by a Guarantor in
connection with, arising out of, or in any way related to, this Guaranty or any
of the other Loan Documents, or any of the transactions contemplated by this
Guaranty, the Credit Agreement or any of the other Loan Documents. Each
Guarantor hereby waives, releases, and agrees not to xxx the Agent or any Lender
or any of the Agent's or any Lender's affiliates, officers, directors,
employees, attorneys, or agents for punitive damages in respect of any claim in
connection with, arising out of, or in any way related to, this Guaranty, the
Credit Agreement or any of the other Loan Documents, or any of the transactions
contemplated by Credit Agreement or financed thereby.
Section 30. Definitions. (a) For the purposes of this Guaranty:
"Proceeding" means any of the following: (i) a voluntary or involuntary
case concerning any Guarantor shall be commenced under the Bankruptcy Code of
1978, as amended; (ii) a custodian (as defined in such Bankruptcy Code or any
other applicable bankruptcy laws) is appointed for, or takes charge of, all or
any substantial part of the property of any Guarantor; (iii) any other
proceeding under any Applicable Law, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding-up or composition for adjustment
of debts, whether now or hereafter in effect, is commenced relating to any
Guarantor; (iv) any Guarantor is adjudicated insolvent or bankrupt; (v) any
order of relief or other order approving any such case or proceeding is entered
by a court of competent jurisdiction; (vi) any Guarantor makes a general
assignment for the benefit of creditors; (vii) any Guarantor shall fail to pay,
or shall state that it is unable to pay, or shall be unable to pay, its debts
generally as they become due; (viii) any Guarantor shall call a meeting of its
creditors with a view to arranging a composition or adjustment of its debts;
(ix) any Guarantor shall by any act or failure to act indicate its consent to,
approval of or acquiescence in any of the foregoing; or (x) any corporate action
shall be taken by any Guarantor for the purpose of effecting any of the
foregoing.
(b) Terms not otherwise defined herein are used herein with the
respective meanings given them in the Credit Agreement.
[Signature on Next Page]
B-9
IN WITNESS WHEREOF, each Guarantor has duly executed and delivered this
Guaranty as of the date and year first written above.
[signed by Guarantors]
B-10
ANNEX I
FORM OF ACCESSION AGREEMENT
THIS ACCESSION AGREEMENT dated as of ______________, ________, executed
and delivered by ______________, a ______________ (the "New Subsidiary"), in
favor of (a) WACHOVIA BANK, NATIONAL ASSOCIATION, in its capacity as Agent (the
"Agent") for the Lenders under that certain Credit Agreement dated as of June
27, 2002 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among Senior Housing Properties Trust (the
"Borrower"), the financial institutions party thereto and their assignees under
Section 12.5 thereof (the "Lenders"), the Agent, and the other parties thereto,
and (b) the Lenders and the Swingline Lender.
WHEREAS, pursuant to the Credit Agreement, the Agent, the Lenders and
the Swingline Lender have agreed to make available to the Borrower certain
financial accommodations on the terms and conditions set forth in the Credit
Agreement;
WHEREAS, the Borrower owns, directly or indirectly, at least a majority
of the issued and outstanding Equity Interests in the New Subsidiary;
WHEREAS, the Borrower, the New Subsidiary, and the existing Guarantors,
though separate legal entities, are mutually dependent on each other in the
conduct of their respective businesses as an integrated operation and have
determined it to be in their mutual best interests to obtain financing from the
Agent, the Lenders and the Swingline Lender through their collective efforts;
WHEREAS, the New Subsidiary acknowledges that it will receive direct
and indirect benefits from the Agent, the Lenders and the Swingline Lender
making such financial accommodations available to the Borrower under the Credit
Agreement and, accordingly, the New Subsidiary is willing to guarantee the
Borrower's obligations to the Agent, the Lenders and the Swingline Lender on the
terms and conditions contained herein; and
WHEREAS, the New Subsidiary's execution and delivery of this Agreement
is a condition to the Agent, the Lenders and the Swingline Lender continuing to
make such financial accommodations to the Borrower.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the New Subsidiary, the New
Subsidiary agrees as follows:
Section 1. Accession to Guaranty. The New Subsidiary hereby agrees that
it is a "Guarantor" under that certain Guaranty dated as of June 27, 2002 (as
amended, supplemented, restated or otherwise modified from time to time, the
"Guaranty"), made by each Subsidiary of the Borrower a party thereto in favor of
the Agent, the Lenders and the Swingline Lender and assumes all obligations of a
"Guarantor" thereunder, all as if the New Subsidiary had been an original
signatory to the Guaranty. Without limiting the generality of the foregoing, the
New Subsidiary hereby:
B-11
(a) irrevocably and unconditionally guarantees the due and punctual
payment and performance when due, whether at stated maturity, by acceleration or
otherwise, of all Guarantied Obligations (as defined in the Guaranty);
(b) makes to the Agent, the Lenders and the Swingline Lender as of the
date hereof each of the representations and warranties contained in Section 5 of
the Guaranty and agrees to be bound by each of the covenants contained in
Section 6 of the Guaranty; and
(c) consents and agrees to each provision set forth in the Guaranty.
SECTION 2. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 3. Definitions. Capitalized terms used herein and not otherwise
defined herein shall have their respective defined meanings given them in the
Credit Agreement.
[Signatures on Next Page]
B-12
IN WITNESS WHEREOF, the New Subsidiary has caused this Accession
Agreement to be duly executed and delivered under seal by its duly authorized
officers as of the date first written above.
[NEW SUBSIDIARY]
By:
-----------------------------------
Name:
----------------------------
Title:
---------------------------
Address for Notices:
c/o Senior Housing Properties Trust
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
Accepted:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Agent
By:
--------------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
B-13
EXHIBIT C
FORM OF NOTICE OF BORROWING
_________, 200_
Wachovia Bank, National Association, as
Agent
One Wachovia Center, NC0172
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: _________________
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of June 27,
2002 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among Senior Housing Properties Trust (the
"Borrower"), the financial institutions party thereto and their assignees under
Section 12.5 thereof (the "Lenders"), Wachovia Bank, National Association, as
Agent (the "Agent"), and the other parties thereto. Capitalized terms used
herein, and not otherwise defined herein, have their respective meanings given
them in the Credit Agreement.
1. Pursuant to Section 2.1.(b) of the Credit Agreement, the
Borrower hereby requests that the Lenders make Revolving Loans
to the Borrower in an aggregate amount equal to
$_________________.
2. The Borrower requests that such Revolving Loans be made
available to the Borrower on __________, 200__ .
3. The Borrower hereby requests that the requested Revolving
Loans all be of the following Type:
[Check one box only]
/ / Base Rate Loans
/ / LIBOR Loans, each with an initial Interest Period for
a duration of:
[Check one box only] / / 7 days
/ / 30 days
/ / 60 days
/ / 90 days
4. The proceeds of this borrowing of Revolving Loans will be used
for the following purpose:
__________________________________________________.
5. The Borrower requests that the proceeds of this borrowing of
Revolving Loans be made available to the Borrower by
_____________________________________.
C-1
The Borrower hereby certifies to the Agent and the Lenders that as of
the date hereof and as of the date of the making of the requested Revolving
Loans and after giving effect thereto, (a) no Default or Event of Default has or
shall have occurred and be continuing, and (b) the representations and
warranties made or deemed made by the Borrower and each other Loan Party in the
Loan Documents to which any of them is a party are and shall be true and correct
in all material respects, except to the extent that such representations and
warranties expressly relate solely to an earlier date (in which case such
representations and warranties were true and accurate on and as of such earlier
date) and except for changes in factual circumstances specifically and expressly
permitted under the Credit Agreement. In addition, the Borrower certifies to the
Agent and the Lenders that all conditions to the making of the requested
Revolving Loans contained in Article V. of the Credit Agreement will have been
satisfied at the time such Revolving Loans are made.
If notice of the requested borrowing of Revolving Loans was previously
given by telephone, this notice is to be considered the written confirmation of
such telephone notice required by Section 2.1(b) of the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Notice of Borrowing as of the date first written above.
SENIOR HOUSING PROPERTIES TRUST
By:
-------------------------------------
Name:
------------------------------
Title:
-----------------------------
C-2
EXHIBIT D
FORM OF NOTICE OF CONTINUATION
______________, 200__
Wachovia Bank, National Association, as
Agent
One Wachovia Center, NC0172
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: _________________
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of June 27,
2002 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among Senior Housing Properties Trust (the
"Borrower"), the financial institutions party thereto and their assignees under
Section 12.5 thereof (the "Lenders"), Wachovia Bank, National Association, as
Agent (the "Agent"), and the other parties thereto. Capitalized terms used
herein, and not otherwise defined herein, have their respective meanings given
them in the Credit Agreement.
Pursuant to Section 2.8. of the Credit Agreement, the Borrower hereby
requests a Continuation of a borrowing of Loans under the Credit Agreement, and
in that connection sets forth below the information relating to such
Continuation as required by such Section of the Credit Agreement:
1. The proposed date of such Continuation is ______________,
____.
2. The aggregate principal amount of Loans subject to the
requested Continuation is $__________ and was originally
borrowed by the Borrower on _________, 200_.
3. The portion of such principal amount subject to such
Continuation is $_______.
4. The current Interest Period for each of the Loans subject to
such Continuation ends on _______________, 200_.
5. The duration of the new Interest Period for each of such Loans
or portion thereof subject to such Continuation is:
[Check one box only] / / 7 days
/ / 30 days
/ / 60 days
/ / 90 days
The Borrower hereby certifies to the Agent and the Lenders that as of
the date hereof, as of the proposed date of the requested Continuation, and
after giving effect to such Continuation, no Default or Event of Default has or
shall have occurred and be continuing.
D-1
If notice of the requested Continuation was given previously by
telephone, this notice is to be considered the written confirmation of such
telephone notice required by Section 2.8. of the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Notice of Continuation as of the date first written above.
SENIOR HOUSING PROPERTIES TRUST
By:
--------------------------------------
Name:
-------------------------------
Title:
------------------------------
D-2
EXHIBIT E
FORM OF NOTICE OF CONVERSION
_________________, 200__
Wachovia Bank, National Association, as
Agent
One Wachovia Center, NC0172
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: _________________
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of June 27,
2002 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among Senior Housing Properties Trust (the
"Borrower"), the financial institutions party thereto and their assignees under
Section 12.5 thereof (the "Lenders"), Wachovia Bank, National Association, as
Agent (the "Agent"), and the other parties thereto. Capitalized terms used
herein, and not otherwise defined herein, have their respective meanings given
them in the Credit Agreement.
Pursuant to Section 2.9, of the Credit Agreement, the Borrower hereby
requests a Conversion of a borrowing of Loans of one Type into Loans of another
Type under the Credit Agreement, and in that connection sets forth below the
information relating to such Conversion as required by such Section of the
Credit Agreement:
1. The proposed date of such Conversion is __________, 200_.
2. The Loans to be Converted pursuant hereto are currently:
[Check one box only] / / Base Rate Loans
/ / LIBOR Loans
3. The aggregate principal amount of Loans subject to the
requested Conversion is $__________ and was originally
borrowed by the Borrower on _____________, 200_.
4. The portion of such principal amount subject to such
Conversion is $__________.
5. The amount of such Loans to be so Converted is to be converted
into Loans of the following Type:
[Check one box only]
/ / Base Rate Loans
/ / LIBOR Loans, each with an initial Interest
Period for a duration of:
E-1
[Check one box only] / / 7 days
/ / 30 days
/ / 60 days
/ / 90 days
The Borrower hereby certifies to the Agent and the Lenders that as of
the date hereof and as of the date of the requested Conversion and after giving
effect thereto, (a) no Default or Event of Default has or shall have occurred
and be continuing, and (b) the representations and warranties made or deemed
made by the Borrower and each other Loan Party in the Loan Documents to which
any of them is a party are and shall be true and correct in all material
respects, except to the extent that such representations and warranties
expressly relate solely to an earlier date (in which case such representations
and warranties were true and accurate on and as of such earlier date) and except
for changes in factual circumstances specifically and expressly permitted under
the Credit Agreement.
If notice of the requested Conversion was given previously by
telephone, this notice is to be considered the written confirmation of such
telephone notice required by Section 2.9. of the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Notice of Conversion as of the date first written above.
SENIOR HOUSING PROPERTIES TRUST
By:
-------------------------------------
Name:
------------------------------
Title:
-----------------------------
E-2
EXHIBIT F
FORM OF NOTICE OF SWINGLINE BORROWING
__________________, __
Wachovia Bank, National Association, as
Agent
One Wachovia Center, NC0172
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: _________________
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of June 27,
2002 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among Senior Housing Properties Trust (the
"Borrower"), the financial institutions party thereto and their assignees under
Section 12.5 thereof (the "Lenders"), Wachovia Bank, National Association, as
Agent (the "Agent"), and the other parties thereto. Capitalized terms used
herein, and not otherwise defined herein, have their respective meanings given
them in the Credit Agreement.
1. Pursuant to Section 2.2.(b) of the Credit Agreement, the
Borrower hereby requests that the Swingline Lender make a
Swingline Loan to the Borrower in an amount equal to
$___________.
2. The Borrower requests that such Swingline Loan be made
available to the Borrower on ___________, 200_.
3. The proceeds of this Swingline Loan will be used for the
following purpose:
__________________________________________________.
4. The Borrower requests that the proceeds of such Swingline Loan
be made available to the Borrower by
__________________________________________________.
The Borrower hereby certifies to the Agent, the Swingline Lender and
the Lenders that as of the date hereof, as of the date of the making of the
requested Swingline Loan, and after making such Swingline Loan, (a) no Default
or Event of Default has or shall have occurred and be continuing, and (b) the
representations and warranties made or deemed made by the Borrower and each
other Loan Party in the Loan Documents to which any of them is a party are and
shall be true and correct in all material respects, except to the extent that
such representations and warranties expressly relate solely to an earlier date
(in which case such representations and warranties were true and accurate on and
as of such earlier date) and except for changes in factual circumstances
specifically and expressly permitted under the Credit Agreement. In addition,
the Borrower certifies to the Agent and the Lenders that all conditions to the
making of
the requested Swingline Loan contained in Article V. of the Credit Agreement
will have been satisfied at the time such Swingline Loan is made.
If notice of the requested borrowing of this Swingline Loan was
previously given by telephone, this notice is to be considered the written
confirmation of such telephone notice required by Section 2.2.(b) of the Credit
Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Notice of Swingline Borrowing as of the date first written above.
SENIOR HOUSING PROPERTIES TRUST
By:
-------------------------------------
Name:
------------------------------
Title:
-----------------------------
F-2
EXHIBIT G
FORM OF SWINGLINE NOTE
$25,000,000.00 June 27, 2002
FOR VALUE RECEIVED, the undersigned, SENIOR HOUSING PROPERTIES TRUST, a
Maryland real estate investment trust (the "Borrower"), hereby promises to pay
to the order of WACHOVIA BANK, NATIONAL ASSOCIATION (the "Swingline Lender") to
its address at One Wachovia Center, NC0172, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, or
at such other address as may be specified in writing by the Swingline Lender to
the Borrower, the principal sum of TWENTY-FIVE MILLION AND NO/100 DOLLARS
($25,000,000.00) (or such lesser amount as shall equal the aggregate unpaid
principal amount of Swingline Loans made by the Swingline Lender to the Borrower
under the Credit Agreement), on the dates and in the principal amounts provided
in the Credit Agreement, and to pay interest on the unpaid principal amount
owing hereunder, at the rates and on the dates provided in the Credit Agreement.
The date, amount of each Swingline Loan, and each payment made on
account of the principal thereof, shall be recorded by the Swingline Lender on
its books and, prior to any transfer of this Note, endorsed by the Swingline
Lender on the schedule attached hereto or any continuation thereof, provided
that the failure of the Swingline Lender to make any such recordation or
endorsement shall not affect the obligations of the Borrower to make a payment
when due of any amount owing under the Credit Agreement or hereunder in respect
of the Swingline Loans.
This Note is the Swingline Note referred to in the Credit Agreement
dated as of June 27, 2002 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), by and among the Borrower,
the financial institutions party thereto and their assignees under Section 12.5
thereof (the "Lenders"), Wachovia Bank, National Association, as Agent, and the
other parties thereto, and evidences Swingline Loans made to the Borrower
thereunder. Terms used but not otherwise defined in this Note have the
respective meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Swingline
Loans upon the terms and conditions specified therein.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.
The Borrower hereby waives presentment for payment, demand, notice of
demand, notice of non-payment, protest, notice of protest and all other similar
notices.
Time is of the essence for this Note.
G-1
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Swingline Note under seal as of the date first written above.
SENIOR HOUSING PROPERTIES TRUST
By:
-----------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Attest:
-------------------------------------
Name:
------------------------------
Title:
-----------------------------
[CORPORATE SEAL]
G-2
SCHEDULE OF SWINGLINE LOANS
This Note evidences Swingline Loans made under the within-described
Credit Agreement to the Borrower, on the dates and in the principal amounts set
forth below, subject to the payments and prepayments of principal set forth
below:
Principal Unpaid
Amount Amount Paid Principal Notation
Date of Loan of Loan or Prepaid Amount Made By
------------ ------- ---------- ------ -------
G-3
EXHIBIT H
FORM OF REVOLVING NOTE
$________________ ________________, 200_
FOR VALUE RECEIVED, the undersigned, SENIOR HOUSING PROPERTIES TRUST, a
Maryland real estate investment trust (the "Borrower"), hereby promises to pay
to the order of _________________________ (the "Lender"), in care of Wachovia
Bank, National Association, as Agent (the "Agent") to, Xxx Xxxxxxxx Xxxxxx,
XX0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, or at such other address as may be
specified in writing by the Agent to the Borrower, the principal sum of
________________ AND ____/100 DOLLARS ($___________) (or such lesser amount as
shall equal the aggregate unpaid principal amount of Revolving Loans made by the
Lender to the Borrower under the Credit Agreement (as herein defined)), on the
dates and in the principal amounts provided in the Credit Agreement, and to pay
interest on the unpaid principal amount owing hereunder, at the rates and on the
dates provided in the Credit Agreement.
The date, amount of each Revolving Loan made by the Lender to the
Borrower, and each payment made on account of -the principal thereof, shall be
recorded by the Lender on its books and, prior to any transfer of this Note,
endorsed by the Lender on the schedule attached hereto or any continuation
thereof, provided that the failure of the Lender to make any such recordation or
endorsement shall not affect the obligations of the Borrower to make a payment
when due of any amount owing under the Credit Agreement or hereunder in respect
of the Revolving Loans made by the Lender.
This Note is one of the Revolving Notes referred to in the Credit
Agreement dated as of June 27, 2002 (as amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement'), by and among the
Borrower, the financial institutions party thereto and their assignees under
Section 12.5 thereof (the "Lenders"), the Agent, and the other parties thereto.
Capitalized terms used herein, and not otherwise defined herein, have their
respective meanings given them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Loans
upon the terns and conditions specified therein.
Except as permitted by Section 12.5.(d) of the Credit Agreement, this
Note may not he assigned by the Lender to any other Person.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.
The Borrower hereby waives presentment for payment, demand, notice of
demand, notice of non-payment, protest, notice of protest and all other similar
notices.
Time is of the essence for this Note.
H-1
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Revolving Note under seal as of the date first written above.
SENIOR HOUSING PROPERTIES TRUST
By:
-----------------------------------
Name:
----------------------------
Title:
---------------------------
Attest:
-------------------------------
Name:
------------------------
Title:
-----------------------
[CORPORATE SEAL]
H-2
SCHEDULE OF REVOLVING LOANS
This Note evidences Revolving Loans made under the within-described
Credit Agreement to the Borrower, on the dates and in the principal amounts set
forth below, subject to the payments and prepayments of principal set forth
below:
Principal Unpaid
Amount Amount Paid Principal Notation
Date of Loan of Loan or Prepaid Amount Made By
------------ ------- ---------- ------ -------
H-3
EXHIBIT I-1
FORM OF OPINION OF COUNSEL TO THE LOAN PARTIES
[LETTERHEAD OF COUNSEL]
June ___, 2002
Wachovia Bank, National Association, as Agent
for the Lenders under the Credit
Agreement referred to below
One Wachovia Center, NC0172
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
The Additional Addresses set
forth on Schedule 1 hereto
Ladies and Gentlemen:
This opinion is delivered to you pursuant to Section 5.1(a)(iv) of the
Credit Agreement dated as of June 27, 2002 (the "Credit Agreement") by and among
Senior Housing Properties Trust, a real estate investment trust organized under
the laws of the State of Maryland (the "Borrower"), the Lenders party thereto,
Wachovia Bank, National Association, as Agent, and the other parties thereto. We
have acted as counsel for the Borrower and each of the Guarantors listed on
Schedule II hereto (collectively with Borrower, the "Loan Parties") in
connection with the Credit Agreement and the other Loan Documents identified
below. Capitalized terms used in this opinion, unless otherwise defined herein,
shall have the meanings assigned thereto in the Credit Agreement.
For purposes of the opinions expressed below, we have examined executed
counterparts of:
(i) the Credit Agreement;
(ii) the Revolving Notes;
(iii) the Swingline Note; and
(iv) the Guaranty.
The Credit Agreement, the Revolving Notes, the Swingline Note and the Guaranty
are collectively referred to herein as the "Loan Documents".
In addition, we leave examined the originals or copies of the
declaration of trust, by-laws, limited liability company operating agreements
and limited partnership agreements, as applicable, of each Loan Party
(collectively, the "Organizational Documents" for such Loan Party), certain
resolutions of the board of trustees or other governing body of each Loan Party
and such other records, agreements and instruments of the Loan Parties,
certificates of public
I-1-1
officials and of officers of the Loan Parties and such other documents and
records, and such matters of law, as we have deemed necessary as a basis for the
opinions hereinafter expressed.
In connection with this opinion, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals and the conformity to the originals of
all documents submitted to us as copies, which facts we have not independently
verified. As to various facts material to the opinions set forth herein, we have
relied without independent verification upon factual representations made by the
Borrower in the Credit Agreement, upon certificates of public officials and upon
facts certified to us by officers of the Loan Parties, as the case may be.
For purposes of the opinions expressed herein, we have assumed that (i)
each Lender and Titled Agent, each Loan Party organized under the laws of a
jurisdiction other than the State of Delaware and each other party (other than
Loan Parties organized under the laws of the State of Delaware) to the Loan
Documents and to all other documents, agreements and instruments examined by us
(A) are corporations or other entities validly existing under the laws of the
jurisdiction of its organization and (B) have all requisite power and authority
(corporate and other) and have taken all necessary action to enter into and
perform all of its obligations under the Loan Documents or such other documents,
agreements and instruments to which they are a party and (ii) each Loan Document
and each such other document, agreement and instrument are and will be the
valid, binding and enforceable obligations of each party thereto, other than the
Loan Parties. We express no opinion upon the application of any federal, state
or local statute, law, rule or regulation (including without limitation any
Federal or state banking, truth-in-lending or other similar credit statute, law,
rule or regulation) to the authority of any Lender or Titled Agent to enter into
and to carry out its respective obligations under the Loan Documents.
Statements herein as to the truth of certain matters "to our knowledge"
or as to matters "known to us" and similar statements refer to the knowledge
consciously held by the individual lawyers in our firm who have participated in
the negotiation and drafting of the Loan Documents without independent
investigation and do not necessarily refer to such knowledge as might be
acquired by a review of all of our files with respect to matters involving the
Loan Parties or by interviews with all present and former members and associates
of our firm. Without limiting the generality of the foregoing, please be advised
that in connection with the opinions expressed in paragraphs 6 and 8 below, we
have not conducted any searches of dockets of any courts or other Governmental
Authorities.
Xxxxx X. Xxxxxxx is a trustee of the Borrower, a trustee and/or
director of the Guarantors and a director and 50% indirect beneficial owner of
REIT Management & Research LLC ("RMR"), a Delaware limited liability company
which is the Borrower's advisor. Xxxxxxxx X. Xxxxx is an officer of several of
the Guarantors and of RMR. Xx. Xxxxxxx and Xx. Xxxxx are retired members of this
firm. Inquiries concerning matters which may be known to Xx. Xxxxxxx or Xx.
Xxxxx should be directed to them.
This opinion is limited to the laws of the Commonwealth of
Massachusetts, the laws of the State of New York (with respect to paragraphs 3
and 9 only), the Revised Uniform Limited Partnership Act and the Limited
Liability Company Act of the State of Delaware and the federal
I-1-2
laws of the United States of America and we express no opinions with respect to
the law of any other jurisdiction.
We express no opinion as to the effect of the law of any jurisdiction
other than the State of New York wherein any Lender Party may be located or
wherein enforcement of the Credit Agreement or any of the other Loan Documents
may be sought that limits the rates of interest legally chargeable or
collectible.
Our opinions set forth in paragraph 1 below with respect to the
existence or good standing of the Borrower and the Guarantors in various
jurisdictions, are based solely on certificates to that effect issued by the
Secretaries of State of such jurisdictions and heretofore delivered to the
Agent.
Our opinions set forth below are subject to the following general
qualifications:
(a) Our opinion set forth in paragraph 3 below is subject to
(i) the effect of applicable bankruptcy, insolvency, receivership,
reorganization, moratorium, liquidation or other similar laws
(including, without limitation, all laws relating to fraudulent
transfers) relating to or affecting creditors' rights generally, and
(ii) general principles of equity (including the availability of
equitable remedies and further including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing),
regardless of whether considered in a proceeding in equity or at law.
Further, pursuant to such equitable principles, Section 3 of the
Guaranty, which provides, among other things, that the liability of the
Guarantors shall not be affected by amendments to or other changes in
the Loan Documents, might be enforceable only to the extent that such
amendments or other changes were not so material as to constitute a new
contract among the parties.
(b) We express no opinion as to provisions granting indemnity
or rights of contribution (to the extent limited by federal or state
securities laws or public policy).
(c) We express no opinion as to (i) any provision of a Loan
Document to the effect that provisions therein may only be amended or
waived in writing, to the extent that an oral agreement modifying such
provisions has been entered into, or (ii) any provision of any Loan
Document for the payment of an increased rate of interest after
maturity or a default, late charges or similar payments (or any
guaranty thereof) to the extent such interest, charges or payments
constitute a penalty or for the payment of interest after judgment in
excess of any applicable statutory rate (or any guaranty thereof).
(d) The enforceability of the Loan Documents may be limited
(i) by general principles of contract law that where less than all of
an agreement is enforceable, the balance is enforceable only when the
unenforceable portion is not an essential part of the agreed exchange,
and (ii) by the exercise of judicial discretion regarding the
determination of damages and entitlement to attorneys' fees and other
costs.
(e) We express no opinion as to whether any of the Guarantors
may guarantee or otherwise become liable for indebtedness incurred by
the Borrower or another Loan
I-1-3
Party except to the extent that the guaranteeing Guarantor may be
determined to have benefited from the incurrence of such indebtedness
by such other entity, and we express no opinion as to whether the
amount of such benefit may be determined by any measure other than the
extent to which proceeds of the indebtedness incurred by such other
entity are directly or indirectly made available to such Guarantor for
its corporate or analogous purposes. For purposes of this opinion, we
have relied on the certification of each Loan Party that the
transactions contemplated by the Loan Documents are necessary or
convenient to the conduct, promotion or attainment of the business of
such Loan Party.
(f) We express no opinion as to (i) whether a state court
outside of the State of New York or a Federal court would give effect
to the choice of New York law provided for in the Loan Documents or to
the provisions of Section 12.4(b) of the Credit Agreement or Section
17(b) of the Guaranty (or any comparable provision of any other Loan
Document), or (ii) the provisions of Section 12.4(b) of the Credit
Agreement or Section 17(b) of the Guaranty (or any comparable provision
of any other Loan Document) to the extent they relate to the subject
matter jurisdiction of any Federal court.
Based upon and subject to the foregoing, we are of the opinion that:
1. Each Guarantor which, as set forth on Schedule II hereto, is a
limited partnership or limited liability company organized under the laws of the
State of Delaware (i) is validly existing and in good standing as a limited
partnership or limited liability company (as the case may be) under the laws of
the State of Delaware, as the case may be, and (ii) has the partnership or
limited liability company (as the case may be) power to execute and deliver, and
to perform its obligations under, the Guaranty, and to own and use its material
assets and conduct its business in all material respects as presently conducted.
2. The execution and delivery of the Guaranty by each Guarantor which
is organized under the laws of the State of Delaware and the performance by such
Guarantor of its obligations thereunder have been duly authorized by all
necessary partnership or limited liability company (as the case may be) action
on the part of such Guarantor.
3. Each Loan Party has duly executed and delivered the Loan Documents
to which it is a party, and each Loan Document is a valid and binding obligation
of each Loan Party which is a party thereto, enforceable against each such Loan
Party in accordance with its terms.
4. The execution and delivery by each of the Loan Parties of the Loan
Documents to which it is a party and the consummation by such Loan Parties of
the transactions thereunder do not, and if each of the Loan Parties were now to
perform its obligations under such Loan Documents in accordance with the terms
thereof, such performance would not, result in any material:
(a) violation of such Loan Party's respective Organizational
Documents;
(b) violation of any existing federal, Massachusetts or New
York constitution or statute or any existing federal, Massachusetts or
New York governmental regulation or rule to which such Loan Party or
its assets are subject;
I-1-4
(c) breach or violation of or default under any of the
agreements, instruments, indentures or other documents listed on
Schedule 6.1 (g) or Schedule 6.1(h) to the Credit Agreement to which
such Loan Xxxxx is a party or by which such Loan Party or its assets is
bound;
(d) creation or imposition of any contractual lien or security
interest in, on or against the assets of any Loan Party under any of
the agreements, instruments, indentures or other documents listed on
Schedule 6.1(g) or Schedule 6.1(h) to the Credit Agreement to which
such Loan Party is a party or by which such Loan Xxxxx or its
respective assets is bound; or
(e) violation of any judicial or administrative decree, writ,
judgment or order to which, to our knowledge, any Loan Party or its
respective assets are subject.
5. The execution, delivery and performance by each of the Loan Parties
of each Loan Document to which it is a party, and the consummation by the Loan
Parties of the transactions thereunder, do not and will not require any
registration with, consent or approval of, or notice to, or other action to,
with or by, any Governmental Authority of the United States of America, the
Commonwealth of Massachusetts or the State of New York or by any Governmental
Authority of the State of Delaware pursuant to the Revised Uniform Limited
Partnership Act or the Limited Liability Company Act of the State of Delaware.
6. To our knowledge there is no (i) undischarged judgment which has
been entered against any Loan Party, the satisfaction of which, or (ii) action,
suit, proceeding or investigation before or by any federal or state court,
agency or other governmental or administrative board or body, pending or
threatened, against any of the Loan Parties in which an unfavorable decision,
ruling or finding, would materially adversely affect the business or properties
or financial condition of the Loan Parties, considered as a consolidated whole,
or the validity or enforceability of any of the Loan Documents.
7. None of the Loan Parties is, or, after giving effect to the Loans,
if made on the date hereof, would be, subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act or the Investment
Company Act of 1940, each as amended, or to any federal or Massachusetts statute
or regulation specifically limiting its ability to incur indebtedness for
borrowed money.
8. Assuming that Borrower applies the proceeds of the Loans as provided
in the Credit Agreement, the transactions contemplated by the Loan Documents do
not violate the provisions of Regulations T, U or X of the Federal Reserve
Board.
9. The consideration to be paid to the Lender for the financial
accommodations to be provided to the Loan Parties pursuant to the Credit
Agreement does not violate any law of the State of New York relating to interest
and usury.
This opinion is furnished to you solely for your benefit in connection
with the consummation of the transactions contemplated by the Credit Agreement
and may not be relied upon by any other person or entity, other than an Assignee
of a Lender, or for any other purpose without our express, prior written
consent. All of the opinions set forth herein are rendered as of
I-1-5
the date hereof, and we assume no obligation to update such opinions to reflect
any facts or circumstances which may hereafter come to our attention or any
changes in the law which may hereafter occur.
Very truly yours,
I-1-6
EXHIBIT I-2
FORM OF OPINION OF SPECIAL MARYLAND COUNSEL
[LETTERHEAD OF COUNSEL]
June ___, 200__
Wachovia Bank, National Association, as Agent
for the Lenders under the Credit
Agreement referred to below
Xxx Xxxxxxxx Xxxxxx, XX0000
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
The Lenders set forth on Schedule 1 hereto
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Re: Senior Housing Properties Trust: $250,000,000 Revolving Credit
Facility
Ladies and Gentlemen:
We have served as Maryland counsel for Senior Housing Properties Trust,
a Maryland real estate investment trust (the "Borrower"), CCC Financing I Trust,
CCC Ohio Healthcare Trust, CCC Pueblo Norte Trust and SPT-Michigan Trust, each a
Maryland business trust and a wholly owned subsidiary of the Borrower
(collectively, the "Business Trust Guarantors"), HRES1 Properties Trust, HRES2
Properties Trust, SNH/CSL Properties Trust, SPTGEN Properties Trust, SPTIHS
Properties Trust, SPTMISC Properties Trust, SPTMNR Properties Trust, SPTMRT
Properties Trust and SPTSUN II Properties Trust, each a Maryland real estate
investment trust and a wholly owned subsidiary of the Borrower (collectively,
the "REIT Guarantors" and together with the Business Trust Guarantors, the
"Guarantors"), in connection with certain matters of Maryland law arising out of
the Credit Agreement, dated as of June 27, 2002 (the "Credit Agreement"), by and
among the Borrower, Wachovia Securities, Inc., as Lead Arranger and Book
Manager, Wachovia Bank, National Association, as Agent (the "Agent"), ING
Capital LLC, as Syndication Agent, UBS AG, Stamford Branch, as Documentation
Agent, and each of the financial institutions party thereto, as Lenders
(collectively, the "Lenders"), pursuant to which the Lenders are making
available to the Borrower a $250,000,000 revolving credit facility, including a
$50,000,000 letter of credit subfacility and a $25,000.000 swingline
subfacility. This firm did not participate in the negotiation or drafting of the
Loan Documents (as defined herein).
This opinion is being delivered to you in connection with Section
5.1(a)(iv) of the Credit Agreement. Unless otherwise defined herein, capitalized
terms used herein have the meanings given to them in the Credit Agreement.
I-2-1
In connection with our representation of the Borrower and the
Guarantors (collectively referred to herein as the "Loan Parties"), and as a
basis for the opinion hereinafter set forth, we have examined originals, or
copies certified or otherwise identified to our satisfaction, of the following
documents (hereinafter collectively referred to as the "Documents"):
1. The Articles of Amendment and Restatement of the Borrower, as
amended and supplemented, certified as of a recent date by the State Department
of Assessments and Taxation of Maryland (the "SDAT");
2. The Bylaws of the Borrower, as amended, certified as of the date
hereof by an officer of the Borrower;
3. The Declaration of Trust of each of the REIT Guarantors, certified
as of a recent date by the SDAT;
4. The Certificate of Trust of each of the Business Trust Guarantors,
certified as of a recent date by the SDAT;
5. The Declaration of Trust or Amended and Restated Declaration of
Trust, as applicable, of each of the Business Trust Guarantors, certified as of
the date hereof by an officer of each of the Business Trust Guarantors;
6. The Bylaws of each of the Guarantors, certified as of the date
hereof by an officer of each of the Guarantors;
7. A certificate as of a recent date of the SDAT as to the good
standing of the Borrower;
8. A certificate as of a recent date of the SDAT as to the good
standing of each of the Guarantors;
9. Resolutions adopted by the Board of Trustees of the Borrower, or a
duly authorized committee thereof, relating to (a) the organization of the
Borrower and (b) the authorization of the execution, delivery and performance by
the Borrower of the Loan Documents to which it is a party, certified as of the
date hereof by an officer of the Borrower;
10. Resolutions adopted by the Board of Trustees of each of the
Guarantors relating to (a) the organization of each of the Guarantors and (b)
the execution, delivery and performance by the Guarantors of the Loan Documents
to which each of the Guarantors is a party, certified as of the date hereof by
an officer of each of the Guarantors;
11. The Credit Agreement, certified as of the date hereof by an officer
of the Borrower;
12. ______ Revolving Notes, dated as of June 27, 2002 (the "Revolving
Notes"), made by the Borrower to various Lenders, certified as of the date
hereof by an officer of the Borrower;
I-2-2
13. The Swingline Note, dated as of June 27, 2002 (the "Swingline
Note'), made by the Borrower to Wachovia Bank, National Association, as
Swingline Lender, certified as of the date hereof by an officer of the Borrower;
14. The Guaranty, dated as of June 27, 2002 (the "Guaranty," and
together with the Credit Agreement, the Revolving Notes and the Swingline Note,
collectively referred to as the "Loan Documents"), made by the Guarantors in
favor of the Agent and the Lenders, certified as of the date hereof by an
officer of each of the Guarantors;
15. A Certificate executed by an officer of the Borrower and an officer
of each of the Guarantors, dated as of the date hereof; and
16. Such other documents and matters as we have deemed necessary or
appropriate to express the opinion set forth below, subject to the assumptions,
limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed the
following:
1. Each individual executing any of the Documents, whether on behalf of
such individual or another person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party
(other than the Loan Parties) is duly authorized to do so.
3. Each of the parties (other than the Loan Parties) executing any of
the Documents has duly and validly executed and delivered each of the Documents
to which such party is a signatory, and such party's obligations set forth
therein are legal, valid and binding and are enforceable in accordance with all
stated terms.
4. Any Documents submitted to us as originals are authentic. Any
Documents submitted to us as certified or photostatic copies conform to the
original documents. All signatures on all Documents are genuine. All public
records reviewed or relied upon by us or on our behalf are true and complete.
All representations, warranties, statements and information contained in the
Documents are true and complete. There has been no oral or written modification
of or amendment to any of the Documents, and there has been no waiver of any
provision of any of the Documents, by action or omission of the parties or
otherwise.
The phrase "known to us" is limited to the actual knowledge, without
independent inquiry, of the lawyers at Our firm who have performed legal
services in connection with the issuance of this Opinion.
Based upon the foregoing, and subject to the assumptions, limitations
and qualifications stated herein, it is our opinion that:
1. The Borrower is a real estate investment trust duly organized and
validly existing under and by virtue of the laws of the State of Maryland and is
in good standing with the SDAT. The Borrower has trust power to execute and
deliver, and to perform its obligations under, the Loan Documents to which it is
a party, and to conduct the business of owning and
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leasing senior apartments, congregate care communities, assisted living
properties and nursing homes.
2. Each of the REIT Guarantors is a real estate investment trust duly
organized and validly existing under and by virtue of the laws of the State of
Maryland and is in good standing with the SDAT. Each of the REIT Guarantors has
trust power to execute and deliver, and to perform its obligations under, the
Loan Documents to which it is a party, and to conduct the business of owning and
leasing senior apartments, congregate care communities, assisted living
properties and nursing homes.
3. Each of the Business Trust Guarantors is a business trust duly
organized and validly existing under and by virtue of the laws of the State of
Maryland and is in good standing with the SDAT. Each of the Business Trust
Guarantors has trust power to execute and deliver, and to perform its
obligations under, the Loan Documents to which it is a party, and to conduct the
business of owning and leasing senior apartments, congregate care communities,
assisted living properties and nursing homes.
4. Each of the Loan Parties has duly authorized the execution and
delivery of the Loan Documents to which it is a party and the performance of
such Loan Party's obligations thereunder. Each of the Loan Parties has duly
executed and, so far as is known to us, delivered, the Loan Documents to which
it is a party.
5. Neither (a) the execution and delivery by the Borrower of the Loan
Documents to which it is a party nor (b) the performance of its obligations
thereunder will violate any Maryland law or any existing Maryland governmental
regulation or rule to which the Borrower or its assets are subject or the
Declaration of Trust or Bylaws of the Borrower.
6. Neither (a) the execution and delivery by each Guarantor of the Loan
Documents to which it is a party nor (b) the performance of its obligations
thereunder will violate any Maryland law or any existing Maryland governmental
regulation or rule to which such Guarantor or its assets are subject or the
Declaration of Trust or Bylaws of such Guarantor.
7. No consent or approval of, registration with, notice to or other
action by, any Maryland governmental authority which has not been obtained, made
or waived, if any, is required for any Loan Party's execution and delivery of,
or performance of its obligations under the Loan Documents to which it is a
party.
The foregoing opinion is limited to the substantive laws of the State
of Maryland and we do not express any opinion herein concerning any other law.
We express no opinion as to the applicability or effect of federal or state
securities laws, including the securities laws of the State of Maryland, or as
to federal or state laws regarding fraudulent transfers. We note that Section
12.12 of the Credit Agreement provides that the Credit Agreement shall be
governed by the laws of the State of New York. To the extent that any matter as
to which our opinion is expressed herein would be governed by the laws of any
jurisdiction other than the State of Maryland, we do not express any opinion on
such matter. Our opinion expressed in paragraphs 5 and 6 above is based upon our
consideration of only those laws, governmental regulations or rules of the State
of Maryland, which, in our experience, are normally applicable to the
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transactions of the type contemplated under the Credit Agreement. Our opinion
expressed in paragraph 7 above is based upon our consideration of only those
consents, approvals, registrations, notices or other actions required by the
State of Maryland, if any, which, in our experience, are normally applicable to
the transactions of the type contemplated under the Credit Agreement. The
opinion expressed herein is subject to the effect of any judicial decision which
may permit the introduction of parol evidence to modify the terms or the
interpretation of agreements.
The opinion expressed herein is limited to the matters
specifically set forth herein and no other opinion shall be inferred beyond the
matters expressly stated. We assume no obligation to supplement this opinion if
any applicable law changes after the date hereof or if we become aware of any
fact that might change the opinion expressed herein after the date hereof.
This opinion is being furnished to you solely for your benefit
in connection with the Credit Agreement. Accordingly, it may not be relied upon
by, quoted in any manner to, or delivered (except delivery by the Lenders (a) to
regulatory authorities, (b) in connection with any litigation involving any of
the Loan Documents or this opinion or (c) as otherwise required by law) to any
other person or entity without, in each instance, our prior written consent,
except that a financial institution that is an Assignee (as defined in the
Credit Agreement) of a Lender may rely on this opinion as if addressed to it on
the date hereof.
Very truly yours,
EXHIBIT J
FORM OF COMPLIANCE CERTIFICATE
___________________, 200___
Wachovia Bank, National Association
One Wachovia Center, NC0172
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: _________________
Each of the Lenders Party to the Credit
Agreement referred to below
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of June 27,
2002 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among Senior Housing Properties Trust (the
"Borrower"), the financial institutions party thereto and their assignees under
Section 12.5 thereof (the "Lenders"), Wachovia Bank, National Association, as
Agent (the "Agent") and the other parties thereto. Capitalized terms used
herein, and not otherwise defined herein, have their respective meanings given
them in the Credit Agreement.
Pursuant to Section 8.3. of the Credit Agreement, the undersigned
hereby certifies to the Agent and the Lenders as follows:
(1) The undersigned is the chief financial officer of the Borrower.
(2) The undersigned has examined the books and records of the Borrower
and has conducted such other examinations and investigations as are reasonably
necessary to provide this Compliance Certificate.
(3) No Default or Event of Default exists [if such is not the case,
specify such Default or Event of Default and its nature, when it occurred and
whether it is continuing and the steps being taken by the Borrower with respect
to such event, condition or failure].
(4) The representations and warranties made or deemed made by the
Borrower and the other Loan Parties in the Loan Documents to which any is a
party, are true and correct in all material respects on and as of the date
hereof except to the extent that such representations and warranties expressly
relate solely to an earlier date (in which case such representations and
warranties shall have been true and accurate on and as of such earlier date) and
except for changes in factual circumstances specifically and expressly permitted
under the Credit Agreement.
(5) Attached hereto as Schedule 1 are reasonably detailed calculations
establishing whether or not the Borrower and its Subsidiaries were in compliance
with the covenants contained in Sections 9.1 through 9.3 and 9.6 of the Credit
Agreement.
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(6) Attached hereto as Schedule 2 is a list of all Unencumbered Senior
Housing Assets and Unencumbered Mortgage Notes; and all Unencumbered Senior
Housing Assets and Unencumbered Mortgage Notes so listed fully qualify as such
under the applicable criteria for inclusion as a Unencumbered Senior Housing
Asset or Unencumbered Mortgage Note.
(7) Attached hereto as Schedule 3 is information, to the extent
obtained by tenants, indicating the underlying occupancy, Property Net Operating
Income and EBITDAR Ratio for each Senior Housing Asset or Senior Housing Asset
Pool, as the case may be, for the fiscal quarter ended _____________, 200_.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
the date first above written.
________________________________
Name: _____________________________
Title:_____________________________
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SCHEDULE I
[Calculations to be Attached]
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SCHEDULE 2
[Information Relating to Senior Housing Asset
or Senior Housing Asset Pool to be attached]
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