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CREDIT AGREEMENT
dated as of July 17, 1998
among
MEDITRUST CORPORATION,
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Bank and as Administrative Agent
for the Banks,
X.X. XXXXXX SECURITIES, INC.,
and
BT ALEX. XXXXX INCORPORATED,
as Lead Arrangers,
FLEET NATIONAL BANK,
and
BANCBOSTON SECURITIES INC.,
as Co-Arrangers,
BANKERS TRUST COMPANY,
as Bank and as Syndication Agent,
BANKBOSTON, N.A.,
as Bank and as Co-Documentation Agent,
FLEET NATIONAL BANK,
as Bank and as Co-Documentation Agent,
and
THE BANKS LISTED HEREIN
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CREDIT AGREEMENT
CREDIT AGREEMENT dated as of July 17, 1998, among MEDITRUST
CORPORATION (the "Borrower"), XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Bank
and as Administrative Agent for the Banks, BANKERS TRUST COMPANY, as Bank and
as Syndication Agent, BANKBOSTON, N.A., as Bank and as Co-Documentation Agent,
FLEET NATIONAL BANK, as Bank and as Co-Documentation Agent, and the BANKS listed
on the signature pages hereof (the "Banks").
W I T N E S S E T H:
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section I.1. Definitions. The following terms, as used herein,
have the following meanings:
"Absolute Rate Auction" means a solicitation of Money Market
Quotes setting forth Money Market Absolute Rates pursuant to Section 2.3.
"Adjusted London Interbank Offered Rate" has the meaning set
forth in Section 2.7(b).
"Administrative Agent" means Xxxxxx Guaranty Trust Company of
New York in its capacity as Administrative Agent for the Banks hereunder, and
its successors in such capacity.
"Administrative Questionnaire" means, with respect to each
Bank, an administrative questionnaire in the form prepared by the Administrative
Agent and submitted to the Administrative Agent (with a copy to the Borrower)
duly completed by such Bank.
"Affiliate", as applied to any Person, means any other Person
that directly or indirectly controls, is controlled by, or is under common
control with, that
Person. For purposes of this definition, "control" (including, with correlative
meanings, the terms "controlling", "controlled by" and "under common control
with"), as applied to any Person, means the possession, directly or indirectly,
of the power to vote ten percent (10.0%) or more of the equity securities having
voting power for the election of directors of such Person or otherwise to direct
or cause the direction of the management and policies of that Person, whether
through the ownership of voting equity securities or by contract or otherwise.
"Agreement" means this Credit Agreement as the same may from
time to time hereafter be modified, supplemented or amended.
"Annual EBITDA" means, measured as of the last day of each
calendar quarter, an amount derived from (i) total revenues as determined in
accordance with GAAP and reflected in the combined consolidated financial
statements relating to the Borrower, MOC and their Consolidated Subsidiaries or
to the Borrower's or MOC's direct or indirect interest in Minority Holdings for
the previous four consecutive calendar quarters including the quarter then
ended, on an accrual basis, less (ii) total operating expenses and other
expenses relating to the Borrower, MOC and their Consolidated Subsidiaries and
relating to the Borrower's and MOC's direct or indirect interest in Minority
Holdings for such period (other than interest, taxes, depreciation,
amortization, and other non-cash items), less (iii) total corporate operating
expenses (including general overhead expenses) and other expenses of the
Borrower, MOC, their Consolidated Subsidiaries and such expenses relating to the
Borrower's and MOC's direct or indirect interest in Minority Holdings (other
than interest, taxes, depreciation, amortization and other non-cash items), for
such period.
"Applicable Interest Rate" means the lesser of (x) the rate at
which the interest rate applicable to any floating rate Debt could be fixed for
the balance of the term of such Debt, at the time of calculation, by the
Borrower entering into an unsecured interest rate swap agreement (or, if such
rate is incapable of being fixed by entering into an unsecured interest rate
swap agreement at the time of calculation, a reasonably determined fixed rate
equivalent), and (y) the rate at which the
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interest rate applicable to such floating rate Debt is actually capped, at the
time of calculation, if the Borrower has entered into an interest rate cap
agreement with respect thereto or if the documentation for such Debt contains a
cap.
"Applicable Lending Office" means, with respect to any Bank,
(i) in the case of its Base Rate Loans, its Domestic Lending Office, (ii) in the
case of its Euro-Dollar Loans, its Euro-Dollar Lending Office, and (iii) in the
case of its Money Market Loans, its Money Market Lending Office.
"Applicable Margin" means
(a) with respect to Tranche A Loans, (x) prior to the
Conversion Date and until such time as the Tranche B Loans and the Tranche C
Loans have been repaid in full, with respect to each Euro-Dollar Loan, 1.375%,
and with respect to each Base Rate Loan, .50%, and (y) prior to the Conversion
Date and from and after such time as the Tranche B Loans and the Tranche C Loans
shall have been repaid in full, with respect to each Euro-Dollar Loan and each
Base Rate Loan, the respective percentages per annum determined, at any time,
based on the range into which the Borrower's Credit Rating (if any) then falls,
in accordance with the table set forth below. Any change in the Borrower's
Credit Rating shall be effective immediately as of the date on which any of the
Rating Agencies announces a change in the Borrower's Credit Rating or the date
on which the Borrower has no Credit Rating, whichever is applicable. In the
event that the Borrower receives two (2) Credit Ratings that are not equivalent,
the Applicable Margin shall be determined by the lower of such two (2) Credit
Ratings unless such Credit Ratings are more than two levels apart, in which
event, the middle level (or if there shall be no middle level as a result of the
Credit Ratings being three levels apart, then the lower of the two "middle"
levels) shall apply.
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Borrower's Credit Applicable Margin Applicable Margin
Rating for Euro-Dollar for Base Rate
(S&P/Moody's Ratings) Loans (% per annum) Loans (% per annum)
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BBB+/Baa1 (or better) 0.85% 0.0%
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BBB/Baa2 1.075% 0.0%
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BBB-/Baa3 1.175% 0.0%
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BB+/Ba1 1.375% 0.50%
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Less than BB+/Ba1 1.625% 1.00%
or no rating
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(b) with respect to Tranche B Loans, prior to the
Conversion Date, the Applicable Margin with respect to each Euro-Dollar Loan,
shall mean 1.375%, and with respect to each Base Rate Loan, shall mean 0.50%;
(c) with respect to Tranche C Loans, prior to the
Conversion Date, the Applicable Margin with respect to each Euro-Dollar Loan,
shall mean 1.375%, and with respect to each Base Rate Loan, shall mean 0.50%,
provided, however, that if the Borrower shall exercise the Extension Option,
then as of the day immediately succeeding the date on which the Tranche C Loans
would have matured, the Applicable Margin with respect to each Euro-Dollar Loan,
shall mean 1.875%, and with respect to each Base Rate Loan, shall mean 1.00%;
(d) with respect to Tranche D Loans, prior to the
Conversion Date, the Applicable Margin with respect to each Euro-Dollar Loan,
shall mean 1.375%, and with respect to each Base Rate Loan, shall mean 0.50%;
(e) from and after the Conversion Date, Applicable
Margin means, with respect to each Euro-Dollar Loan and each Base Rate Loan, the
respective percentages per annum determined, at any time, based on the range
into which the Total Debt Ratio then falls, in accordance with the table set
forth below. Any change in the Total Debt Ratio shall occur on the date on which
the Borrower delivers, or was required to have delivered, the certificate
pursuant to Section 5.1(c) hereof,
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whichever is earlier. If the Borrower shall fail to deliver such certificate in
accordance with Section 5.1(c) hereof, then the Total Debt Ratio shall be deemed
to be greater than 50%.
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Maximum Total Debt Maximum Total Debt
Ratio less than 50%. Ratio equal to or
greater than 50%.
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Applicable Margin for Tranche A: 0% Tranche A: 0%
Base Rate Loans Tranche B: 0% Tranche B: 0%
Tranche C: 0% Tranche C: 0%
Tranche D: 0% Tranche D: 0%
Applicable Margin for Tranche A: 1.00% Tranche A: 1.125%
Euro-Dollar Loans Tranche B: 1.00% Tranche B: 1.125%
Tranche C: 1.00% Tranche C: 1.125%
Tranche D: 1.00% Tranche D: 1.125%
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"Assignee" has the meaning set forth in Section 9.6(c).
"Bank" means each bank and other Person listed on the
signature pages hereof, each Assignee which becomes a Bank pursuant to Section
9.6(c), and their respective successors and each Designated Lender; provided,
however, that the term "Bank" shall exclude each Designated Lender when used in
reference to a Committed Loan, the Commitments or terms relating to the
Committed Loans and the Commitments and shall further exclude each Designated
Lender for all other purposes hereunder except that any Designated Lender which
funds a Money Market Loan shall, subject to Section 9.6(d), have the rights
(including the rights given to a Bank contained in Section 9.3 and otherwise in
Article 9) and obligations of a Bank associated with holding such Money Market
Loan.
"Bankruptcy Code" means Title 11 of the United States Code,
entitled "Bankruptcy", as amended from time to time, and any successor statute
or statutes.
"Base Rate" means, for any day, a rate per annum equal to the
higher of (i) the Prime Rate for such day and (ii) the sum of the Federal Funds
Rate plus .50%.
"Base Rate Borrowing" means a Borrowing comprised of Base Rate
Loans.
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"Base Rate Loan" means a Committed Loan to be made by a Bank
as a Base Rate Loan in accordance with the applicable Notice of Borrowing or
pursuant to Article VIII.
"Benefit Arrangement" means at any time an employee benefit
plan within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Borrower" means Meditrust Corporation and its successors.
"Borrowing" has the meaning set forth in Section 1.3.
"Capital Expenditures" means, for any period, the sum of all
expenditures (whether paid in cash or accrued as a liability) by the Borrower or
MOC which are capitalized on the combined consolidated balance sheet of the
Borrower or MOC in conformity with GAAP, but less (i) all expenditures made with
respect to the acquisition by the Borrower, MOC and their Consolidated
Subsidiaries of any interest in real property within nine months after the date
such interest in real property is acquired; (ii) capital expenditures made from
the proceeds of insurance or condemnation awards (or payments in lieu thereof)
or indemnity payments received during such period by the Borrower, MOC or any of
their Consolidated Subsidiaries from third parties; and (iii) all construction,
additions or other long-term investments.
"Cash or Cash Equivalents" means (i) cash, (ii) direct
obligations of the United States Government, including, without limitation,
treasury bills, notes and bonds, (iii) interest bearing or discounted
obligations of Federal agencies and government sponsored entities or pools of
such instruments offered by banks rated AA or better by S&P or Aa2 by Moody's
and dealers, including, without limitation, Federal Home Loan Mortgage
Corporation participation sale certificates, Government National Mortgage
Association modified pass-through certificates, Federal National Mortgage
Association bonds and notes, Federal Farm Credit System securities, (iv) time
deposits, domestic and Eurodollar certificates of deposit, bankers acceptances,
commercial
6
paper rated at least A-1 by S&P and P-1 by Moody's, and/or guaranteed by an Aa
rating by Moody's, an AA rating by S&P, or better rated credit, floating rate
notes, other money market instruments and letters of credit each issued by banks
which have a long-term debt rating of at least AA by S&P or Aa2 by Moody's, (v)
obligations of domestic corporations, including, without limitation, commercial
paper, bonds, debentures, and loan participations, each of which is rated at
least AA by S&P, and/or Aa2 by Moody's, and/or unconditionally guaranteed by an
AA rating by S&P, an Aa2 rating by Moody's, or better rated credit, (vi)
obligations issued by states and local governments or their agencies, rated at
least MIG-1 by Moody's and/or SP-1 by S&P and/or guaranteed by an irrevocable
letter of credit of a bank with a long-term debt rating of at least AA by S&P or
Aa2 by Moody's, (vii) repurchase agreements with major banks and primary
government securities dealers fully secured by U.S. Government or agency
collateral equal to or exceeding the principal amount on a daily basis and held
in safekeeping, (viii) real estate loan pool participations, guaranteed by an
entity with an AA rating given by S&P or an Aa2 rating given by Moody's, or
better rated credit, and (ix) shares of any mutual fund that has its assets
primarily invested in the types of investments referred to in clauses (i)
through (v).
"Closing Date" means the date on which the Administrative
Agent shall have received the documents specified in or pursuant to Section 3.1,
and shall have satisfied all other conditions set forth in Section 3.1.
"Commitment" means, with respect to each Bank, the amount
committed by such Bank pursuant to this Agreement with respect to any Loans, as
such amount may be reduced from time to time pursuant to Sections 2.9, 2.10,
2.11 and 6.2.
"Committed Borrowing" has the meaning set forth in Section
1.3.
"Committed Loan" means a loan made by a Bank pursuant to
Section 2.1; provided that, if any such loan or loans (or portions thereof) are
combined or subdivided pursuant to a Notice of Interest Rate Election, the term
"Committed Loan" shall refer to the combined principal amount resulting from
such combination or to each of the separate principal amounts resulting from
such subdivision, as the case may be.
"Consolidated Subsidiary" means at any date any Subsidiary or
other entity which is consolidated with the Borrower or MOC in accordance with
GAAP.
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"Consolidated Tangible Net Worth" means at any date the
combined consolidated stockholders' equity of the Borrower (determined on a book
basis) and MOC, less their combined consolidated Intangible Assets, all
determined as of such date. For purposes of this definition "Intangible Assets"
means with respect to any such intangible assets, the amount (to the extent
reflected in determining such combined consolidated stockholders' equity) of (i)
all write-ups subsequent to December 31, 1997 in the book value of any asset
owned by the Borrower, MOC or a Consolidated Subsidiary other than write-ups in
connection with the acquisition of any asset in accordance with GAAP purchase
accounting, and (ii) goodwill, patents, trademarks, service marks, trade names,
anticipated future benefit of tax loss carry forwards, copyrights, organization
or developmental expenses and other intangible assets.
"Construction Asset" means any Real Property Asset on which
construction of improvements has commenced (such commencement evidenced by
foundation excavation) but has not yet been completed (as such completion shall
be evidenced by such Real Property Asset being open for business to the general
public).
"Contingent Obligation" as to any Person means, without
duplication, (i) any contingent obligation of such Person required to be shown
on such Person's balance sheet in accordance with GAAP, and (ii) any obligation
required by GAAP to be disclosed in the footnotes to such Person's financial
statements, guaranteeing partially or in whole any non-recourse Debt, lease,
dividend or other obligation, exclusive of contractual indemnities (including,
without limitation, any indemnity or price-adjustment provision relating to the
purchase or sale of securities or other assets) and guarantees of non-monetary
obligations (other than guarantees of completion) which have not yet been called
on or quantified, of such Person or of any other Person. The amount of any
Contingent Obligation described in clause (ii) shall be deemed to be (a) with
respect to a guaranty of interest or interest and principal, or operating income
guaranty, the sum of all payments required to be made thereunder (which in the
case of an operating income guaranty shall be deemed to be equal to the debt
service for the note secured thereby), calculated at the Applicable Interest
Rate, through (i) in the case of an interest or interest and principal guaranty,
the stated date of maturity of the obligation (and commencing on the date
interest could first be payable thereunder), or (ii) in the case of an operating
income guaranty, the date through which such guaranty will remain in effect, and
(b) with respect to all guarantees not covered by the preceding clause (a), an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such guaranty is made or, if not stated or
8
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as recorded on the
balance sheet and in the footnotes to the most recent financial statements of
the Borrower required to be delivered pursuant to Sections 4.4 or 5.1 hereof.
Notwithstanding anything contained herein to the contrary, guarantees of
completion shall not be deemed to be Contingent Obligations unless and until a
claim for payment or performance has been made thereunder, at which time any
such guaranty of completion shall be deemed to be a Contingent Obligation in an
amount equal to any such claim. Subject to the preceding sentence, (i) in the
case of a joint and several guaranty given by such Person and another Person
(but only to the extent such guaranty is recourse, directly or indirectly to the
Borrower), the amount of the guaranty shall be deemed to be 100% thereof unless
and only to the extent that such other Person has delivered Cash or Cash
Equivalents to secure all or any part of such Person's guaranteed obligations,
(ii) in the case of joint and several guarantees given by a Person in whom the
Borrower owns an interest (which guarantees are non-recourse to the Borrower),
to the extent the guarantees, in the aggregate, exceed 15% of total real estate
investments, the amount in excess of 15% shall be deemed to be a Contingent
Obligation of the Borrower, and (iii) in the case of a guaranty (whether or not
joint and several) of an obligation other wise constituting Debt of such Person,
the amount of such guaranty shall be deemed to be only that amount in excess of
the amount of the obligation constituting Debt of such Person. Notwithstanding
anything contained herein to the contrary, "Contingent Obligations" shall not be
deemed to include guarantees of Unused Commitments or of construction loans to
the extent the same have not been drawn.
"Conversion Date" has the meaning set forth in Section 3.3(a).
"Core Asset Type" means (i) ownership, financing or operation
of Healthcare Properties, (ii) ownership, financing or operation of Hotel
Properties, (iii) ownership, financing or operation of Golf Properties, and (iv)
owner ship or operation of Santa Xxxxx Xxxx.
"Credit Rating" means the publicly announced rating for
long-term senior unsecured indebtedness of the Borrower given by one or more of
the Rating Agencies, at least one of which shall be Moody's or S&P.
9
"Debt" of any Person (including Minority Holdings) means,
without duplication, (A) as shown on such Person's combined consolidated balance
sheet (i) all indebtedness of such Person for borrowed money or for the deferred
purchase price of property and, (ii) all indebtedness of such Person evidenced
by a note, bond, debenture or similar instrument (whether or not disbursed in
full in the case of a construction loan), (B) the face amount of all letters of
credit issued for the account of such Person and, without duplication, all
unreimbursed amounts drawn thereunder, (C) all Contingent Obligations of such
Person, (D) all payment obligations of such Person under any interest rate
protection agreement (including, without limitation, any interest rate swaps,
caps, floors, collars and similar agreements) and currency swaps and similar
agreements which were not entered into specifically in connection with Debt set
forth in clauses (A), (B) or (C) hereof. For purposes of this Agreement, Debt
(other than Contingent Obligations) of the Borrower shall be deemed to include
only the Borrower's pro rata share (such share being based upon the Borrower's
percentage ownership interest as shown on the Borrower's annual audited
financial statements) of the Debt of any Person in which the Borrower, directly
or indirectly, owns an interest, provided that such Debt is nonrecourse, both
directly and indirectly, to the Borrower.
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"Designated Lender" means a special purpose corporation that
(i) shall have become a party to this Agreement pursuant to Section 9.6(d), and
(ii) is not otherwise a Bank.
"Designated Lender Notes" means promissory notes of the
Borrower, substantially in the form of Exhibit A-5 hereto, evidencing the
obligation of the Borrower to repay Money Market Loans made by Designated
Lenders, and "Designated Lender Note" means any one of such promissory notes
issued under Section 9.6(d) hereof.
"Designating Lender" shall have the meaning set forth in
Section 9.6(d) hereof.
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"Designation Agreement" means a designation agreement in
substantially the form of Exhibit G attached hereto, entered into by a Bank and
a Designated Lender and accepted by the Administrative Agent.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in New York City are authorized by
law to close.
"Domestic Lending Office" means, as to each Bank, its office
located within the United States at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its Domestic
Lending Office) or such other office within the United States as such Bank may
hereafter designate as its Domestic Lending Office by notice to the Borrower and
the Administrative Agent; provided that no Bank shall be permitted to change its
Domestic Lending Office if as a result of such change either (i) pursuant to the
provisions of Section 8.1 or Section 8.2, the Borrower would be unable to
maintain any Loans as Euro-Dollar Loans; or (ii) the Borrower would be required
to make any payment to such Bank pursuant to the provisions of Section 8.3 or
Section 8.4.
"Duff & Xxxxxx" means Duff & Xxxxxx Credit Rating Co. or any
successor thereto.
"Environmental Affiliate" means any partnership, or joint
venture, trust or corporation in which an equity interest in excess of 20% is
owned by the Borrower, either directly or indirectly.
"Environmental Approvals" means any permit, license,
approval, ruling, variance, exemption or other authorization required under
applicable Environmental Laws.
"Environmental Claim" means, with respect to any Person, any
written notice, claim, demand or similar communication by any other Person
alleging potential liability for investigatory costs, cleanup costs,
governmental response costs, natural resources damage, property damage,
personal injuries, fines or penalties arising out of, based on or resulting from
(i) the presence, or release into the environment, of any Material of
Environmental Concern at any location, whether or not owned by such Person or
(ii) circumstances forming the basis of any violation, or alleged violation, of
any Environmental Law, in each case as to which could reasonably be expected to
have a Material Ad verse Effect.
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"Environmental Laws" means any and all federal, state, local
and foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating
to the environment, the effect of the environment on human health or to
emissions, discharges or releases of Material of Environmental Concern or
hazardous wastes into the environment including, without limitation, ambient
air, surface water, ground water, or land, or other wise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, Material of Environmental
Concern or hazardous wastes or the clean-up or other remediation thereof.
"Environmental Report" has the meaning set forth in Section
4.7.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, or any successor statute.
"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.
"Euro-Dollar Borrowing" has the meaning set forth in Section
1.3.
"Euro-Dollar Business Day" means any Domestic Business Day on
which commercial banks are open for international business (including dealings
in dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its
office, branch or affiliate located at its address set forth in its
Administrative Questionnaire (or identified in its Administrative Questionnaire
as its Euro-Dollar Lending Office) or such other office, branch or affiliate of
such Bank as it may hereafter designate as its Euro-Dollar Lending Office by
notice to the Borrower and the Administrative Agent; provided that no Bank
shall be permitted to change its Euro-Dollar Lending Office if as a result of
such change either (i) pursuant to the provisions of Section 8.1
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or Section 8.2, the Borrower would be unable to maintain any Loans as
Euro-Dollar Loans; or (ii) the Borrower would be required to make any payment to
such Bank pursuant to the provisions of Sections 8.3 or Section 8.4.
"Euro-Dollar Loan" means a Committed Loan to be made by a Bank
as a Euro-Dollar Loan in accordance with the applicable Notice of Committed
Borrowing or Notice of Interest Rate Election.
"Euro-Dollar Reserve Percentage" has the meaning set forth in
Section 2.7(b).
"Event of Default" has the meaning set forth in Section 6.1.
"Existing Credit Agreements" means those agreements set forth
on Exhibit I attached hereto.
"Existing Letters of Credit" has the meaning set forth in
Section 2.2(c).
"Extension Fee" has the meaning set forth in Section 2.8(d).
"Extension Option" has the meaning set forth in Section
2.9(b).
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, 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 Domestic
Business Day next succeeding such day; provided that (i) if such day is not a
Domestic Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Domestic Business Day as so published on
the next succeeding Domestic Business Day, and (ii) if no such rate is so
published on such next succeeding Domestic Business Day, the Federal Funds Rate
for such day shall be the average rate quoted to Xxxxxx on such day on such
transactions as determined by the Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System as constituted from time to time.
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"FFO" means "funds from operations," defined to mean net
income (or loss) (computed in accordance with GAAP), excluding gains (or losses)
from debt restructurings and sales of properties, plus depreciation and
amortization, after adjustments for Minority Holdings. Adjustments for Minority
Holdings will be calculated to reflect FFO on the same basis as above.
"Fitch" means Fitch Investors Services, L.P. or any successor
thereto.
"Fronting Bank" shall mean Xxxxxx, Bankers Trust Company,
BankBoston, N.A., Fleet National Bank, NationsBank, N.A., or such other Bank
which the Borrower is notified by the Administrative Agent may be a Fronting
Bank and which is designated by the Borrower in its Notice of Borrowing as the
Bank which shall issue a Letter of Credit with respect to such Notice of
Borrowing.
"GAAP" means generally accepted accounting principles
recognized as such in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and
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 date of determination.
"Golf Properties" means golf courses and golf clubs.
"Governmental Authority" means any Federal, state or local
government or any other political subdivision thereof or agency exercising
executive, legislative, judicial, regulatory or administrative functions having
jurisdiction over the Borrower or any Real Property Asset.
"Group of Loans" means, at any time, a group of Loans
consisting of (i) all Committed Loans which are Base Rate Loans at such time, or
(ii) all Committed Loans which are Euro-Dollar Loans having the same Interest
Period at such time; provided that, if a Loan of any particular Bank is
converted to or made as a Base Rate Loan pursuant to Section 8.2 or 8.5, such
Loan shall be included in the same Group or Groups of Loans from time to time as
it would have been in if it had not been so converted or made.
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"Guarantor Subsidiary" means any Subsidiary of the Borrower
(i) to which more than ten percent (10%) of Total Fair Market Value is
attributable, and (ii) in which the Borrower owns, directly or indirectly, less
than ninety percent (90%) of the equity interests thereof.
"Guaranty" means the Guaranty of Payment, dated as of even
date herewith, by MOC, together with any other Guaranty of Payment to be entered
into by a Guarantor Subsidiary in accordance with Section 5.22 hereof.
"Healthcare Mortgages" means mortgage loans owned by the
Borrower, MOC or their Consolidated Subsidiaries, secured by Liens on Healthcare
Properties, exclusive of Healthcare Mortgages on Real Property Assets which
would be considered a Construction Asset, and exclusive of any Healthcare
Mortgages encumbering individual Real Property Assets with a debt service
coverage ratio of less than 1.1:1, provided that any Healthcare Mortgage
encumbering any such Real Property Asset shall be included in the applicable
calculation if the same shall be cross-defaulted and cross-collateralized with
other Healthcare Mortgages encumbering Real Property Assets, provided that the
entire pool of cross-defaulted and cross-collateralized Healthcare Mortgages
shall have a combined debt service coverage ratio of 1.1:1 or better.
"Healthcare Properties" means hospitals, long-term care
facilities, rehabilitation facilities, independent or assisted living facilities
for seniors, medical office buildings and substance abuse facilities.
"Hotel Properties" means hotels, motels, conference centers
and resorts.
"Indemnitee" has the meaning set forth in Section 9.3(b).
"Interest Period" means: (i) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Committed Borrowing or of
any Notice of Interest Rate Election with respect to such Committed Borrowing
and ending one, two, three or six months thereafter, as the Borrower may elect
in the applicable Notice of Committed Borrowing or Notice of Interest Rate
Election; provided that:
15
(a) any Interest Period which would other wise end on
a day which is not a Euro-Dollar Business Day shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Euro-Dollar Business
Day;
(b) any Interest Period which begins on the last
Euro-Dollar Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Euro-Dollar
Business Day of a calendar month.
Notwithstanding the foregoing, however, prior to the date which is 90 days from
the Closing Date, with respect to Tranche B Loans, Tranche C Loans and Tranche D
Loans, the Borrower shall only be permitted to select Interest Periods of one
month, and with respect to Tranche A Loans, the Borrower shall use its best
efforts to cooperate with the Administrative Agent in selecting Interest Periods
in order to facilitate the syndication of the Tranche A Loan Commitments.
(ii) with respect to each Base Rate Borrowing, the period
commencing on the date of such Committed Borrowing or Notice of Interest Rate
Election and ending 30 days thereafter; provided that any Interest Period which
would otherwise end on a day which is not a Euro-Dollar Business Day shall be
extended to the next succeeding Euro-Dollar Business Day.
(iii) with respect to each Money Market LIBOR Loan, the period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing and ending 1, 2, 3 or 6 months thereafter, as the Borrower may elect
in the applicable Notice of Money Market Borrowing in accordance with Section
2.3; provided that:
(a) any Interest Period which would other wise end on
a day which is not a Euro-Dollar Business Day shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Euro-Dollar Business
Day;
16
(b) any Interest Period which begins on the last
Euro-Dollar Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall, subject to clause (c) below, end
on the last Euro-Dollar Business Day of a calendar month;
(c) if any Interest Period includes a date on which a
payment of principal of Loans is required to be made under Section 2.10
but does not end on such date, then (i) the principal amount (if any)
of each Money Market LIBOR Loan required to be repaid on such date and
(ii) the remainder (if any) of each such Money Market LIBOR Loan shall
have an Interest Period deter mined as set forth above; and
(d) any Interest Period which would other wise end
after the Maturity Date shall end on the Maturity Date.
(iv) with respect to each Money Market Absolute Rate Loan, the
period commencing on the date of borrowing specified in the applicable Notice of
Borrowing and ending such number of days thereafter (but not less than 14 days)
as the Borrower may elect in accordance with Section 2.3; provided that:
(a) any Interest Period which would other wise end on
a day which is not a Euro-Dollar Business Day shall be extended to the
next succeeding Euro-Dollar Business Day; and
(b) if any Interest Period includes a date on which a
payment of principal of Loans is required to be made under Section 2.10
but does not end on such date, then (i) the principal amount (if any)
of each Money Market Absolute Rate Loan required to be repaid on such
date and (ii) the remainder (if any) of each such Money Market Absolute
Rate Loan shall have an Interest Period determined as set forth above.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended, or any successor statute.
"Investment Grade Rating" means a rating for a Person's senior
long-term unsecured debt, or if no such rating has been issued, a "shadow"
rating, of BBB- or better
17
from S&P, and a rating or "shadow" rating of Baa3 or better from Moody's or a
rating or "shadow" rating equivalent to the foregoing from either Duff & Xxxxxx
or Fitch. Any such "shadow" rating shall be evidenced by a letter from the
applicable Rating Agency or by such other evidence as may be reasonably
acceptable to the Administrative Agent (as to any such other evidence, the
Administrative Agent shall present the same to, and discuss the same with, the
Banks).
"Invitation for Money Market Quotes" has the meaning set forth
in Section 2.3(c).
"Letter(s) of Credit" has the meaning provided in Section
2.2(c).
"Letter of Credit Collateral" has the meaning provided in
Section 6.4.
"Letter of Credit Collateral Account" has the meaning provided
in Section 6.4.
"Letter of Credit Documents" has the meaning provided in
Section 2.17.
"Letter of Credit Usage" means, without duplication, at any
time the sum of (i) the aggregate maximum amount available to be drawn under the
Letters of Credit then outstanding, assuming compliance with all requirements
for drawing referred to therein, and (ii) the aggregate amount of the Borrower's
unpaid obligations under this Agreement in respect of the Letters of Credit.
"LIBOR Auction" means a solicitation of Money Market Quotes
setting forth Money Market Margins based on the London Interbank Offered Rate
pursuant to Section 2.3.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind, or any other type
of preferential arrangement that has the practical effect of creating a security
interest, in respect of such asset. For the purposes of this Agreement, each of
the Borrower and any Subsidiary shall be deemed to own subject to a Lien any
asset which it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
18
"Loan" means a Base Rate Loan or a Euro-Dollar Loan or a Money
Market Loan and "Loans" means Base Rate Loans or Euro-Dollar Loans or Money
Market Loans or any combination of the foregoing.
"Loan Documents" means this Agreement, the Notes, any
Guaranty, the Letter(s) of Credit, the Letter of Credit Documents and any
related documents.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.7(b).
"Margin Stock" shall have the meaning provided such term in
Regulation U of the Federal Reserve Board.
"Material Adverse Effect" means a material adverse effect upon
(i) the current or future business, operations, properties or assets of the
Borrower and its Subsidiaries taken as a whole, or MOC and its Subsidiaries
taken as a whole, or (ii) the ability of the Borrower or MOC to perform its
obligations hereunder or under the Guaranty in all material respects, including
to pay interest and principal.
"Material of Environmental Concern" means and includes
pollutants, contaminants, hazardous wastes, and toxic, radioactive, caustic or
otherwise hazardous sub stances, including petroleum, its derivatives,
by-products and other hydrocarbons, or any substance having any constituent
elements displaying any of the foregoing characteristics, except those
incidental to the operation of the applicable Real Property Asset.
"Material Plan" means at any time a Plan having aggregate
Unfunded Liabilities in excess of $5,000,000.
"Maturity Date" has the meaning set forth in
Section 2.9.
"Minority Holdings" means partnerships, limited liability
companies and corporations directly or indirectly held or owned by the Borrower
or MOC, other than Xxxxx Associates, which are not consolidated with the
Borrower or MOC on their financial statements.
"MOC" means Meditrust Operating Company, a Delaware
corporation.
19
"Money Market Absolute Rate" has the meaning set forth in
Section 2.3.
"Money Market Absolute Rate Loan" means a Loan to be made by a
Bank pursuant to an Absolute Rate Auction.
"Money Market Borrowing" has the meaning set forth in Section
1.3.
"Money Market Lending Office" means, as to each Bank, its
Domestic Lending Office or such other office, branch or affiliate of such Bank
as it may hereafter designate as its Money Market Lending Office by notice to
the Borrower and the Administrative Agent; provided that any Bank may from time
to time by notice to the Borrower and the Administrative Agent designate
separate Money Market Lending Offices for its Money Market LIBOR Loans, on the
one hand, and its Money Market Absolute Rate Loans, on the other hand, in which
case all references herein to the Money Market Lending Office of such Bank shall
be deemed to refer to either or both of such offices, as the context may
require.
"Money Market LIBOR Loan" means a Loan to be made by a Bank
pursuant to a LIBOR Auction (including such a Loan bearing interest at the Base
Rate pursuant to Section 2.3).
"Money Market Loan" means a Money Market LIBOR Loan or a Money
Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section
2.3.
"Money Market Quote" means an offer by a Bank to make a Money
Market Loan in accordance with Section 2.3.
"Money Market Quote Request" has the meaning set forth in
Section 2.3(b).
"Moody's" means Xxxxx'x Investors Service, Inc. or any
successor thereto.
"Xxxxxx" means Xxxxxx Guaranty Trust Company of New York, in
its individual capacity.
"Mortgages" has the meaning set forth in Section
3.3(a) hereof.
20
"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.
"NAIC" means The National Association of Insurance
Commissioners.
"Net Cash Proceeds" means all cash when and as received in
connection with the sale or refinancing of any asset, less reasonable costs and
expenses, repayment of secured indebtedness with respect to the applicable
asset, and net of an amount equal to taxable capital gains and real estate
transfer taxes payable in connection with any asset sale.
"Net Offering Proceeds" means all cash received by the
Borrower or MOC as a result of the sale of common stock, preferred stock,
partnership interests, limited liability company interests, or other ownership
or equity interests in the Borrower or MOC (or evidence of indebtedness of the
Borrower or MOC convertible into any of the foregoing), or debt securities, less
customary costs and discounts of issuance paid by the Borrower or MOC, as the
case may be, and exclusive of any cash proceeds received in connection with the
settlement of the Forward Equity Issuance Transaction, dated as of February 26,
1998 with Xxxxxxx Xxxxx International.
"Non-Recourse Debt" means Debt of the Borrower, MOC, or any of
their Subsidiaries on a combined consolidated basis for which the right of
recovery of the obligee thereof is limited to recourse against the Real Property
Assets securing such Debt (subject to such limited exceptions to the
non-recourse nature of such Debt such as fraud, misappropriation,
misapplication and environmental indemnities, as are usual and customary in like
transactions at the time of the incurrence of such Debt).
"Notes" means, collectively, the promissory notes of the
Borrower, each substantially in the forms of Exhibit X-0, X-0, X-0 and A-4
hereto, evidencing the obligation of the Borrower to repay the Tranche A Loans,
the Tranche B
21
Loans, the Tranche C Loans and the Tranche D Loans, respectively, together with
any Designated Lender Notes, and "Note" means any one of such promissory notes
issued hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing or
a Notice of Money Market Borrowing.
"Notice of Committed Borrowing" has the meaning set forth in
Section 2.2.
"Notice of Interest Rate Election" has the meaning set forth
in Section 2.15(a).
"Notice of Money Market Borrowing" has the meaning set forth
in Section 2.3(f).
"Notice to Extend" has the meaning set forth in Section
2.9(b).
"Obligations" means all obligations, liabilities, interest,
fees and indebtedness of every nature of the Borrower from time to time owing to
any Bank under or in connection with this Agreement or any other Loan Document,
including, without limitation, (i) the outstanding principal amount of the
Committed Loans at such time, plus (ii) the Letter of Credit Usage at such time,
plus (iii) the out standing principal amount of any Money Market Loans at such
time.
"Outstanding Balance" means the sum of (i) the aggregate
outstanding and unpaid principal balance of all Loans and (ii) the Letter of
Credit Usage.
"Parent" means, with respect to any Bank, any Person
controlling such Bank.
"Participant" has the meaning set forth in Section 9.6(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Permitted Liens" means (a) Liens in favor of the Borrower or
MOC on all or any part of the assets of Subsidiaries of the Borrower or MOC,
provided that (i) the Debt to
22
which such Lien relates is held by the Borrower or MOC, (ii) such Debt is not
otherwise pledged or encumbered, and (iii) no more than 20% of the Unencumbered
Asset Pool Properties Value may be subject to any such Liens; (b) Liens to
secure the performance of statutory obligations, surety or appeal bonds,
performance bonds, completion bonds, government contracts or other obligations
of a like nature, including Liens in connection with workers' compensation,
unemployment insurance and other types of statutory obligations or to secure the
performance of tenders, bids, leases, contracts (other than for the repayment of
Debt) and other similar obligations incurred in the ordinary course of business;
(c) Liens for taxes, assessments or governmental charges or claims that are not
yet delinquent or that are being contested in good faith by appropriate
proceedings promptly instituted and diligently concluded; provided, that any
reserve or other appropriate provision as shall be required in conformity with
GAAP shall have been made therefor; (d) Liens on property of the Borrower, MOC
or any Subsidiary thereof in favor of the Federal or any state government to
secure certain payments pursuant to any contract, statute or regulation; (e)
easements (including, without limitation, reciprocal easement agreements and
utility agreements), rights of way, covenants, consents, reservations,
encroachments, variations and zoning and other restrictions, charges or
encumbrances (whether or not recorded), which do not interfere materially with
the ordinary conduct of the business of the Borrower, MOC or any Subsidiary
thereof and which do not materially detract from the value of the property to
which they attach or materially impair the use thereof by the Borrower, MOC or
any Subsidiary thereof; (f) statutory Liens of carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen or other Liens imposed by law and
arising in the ordinary course of business, for sums not then due and payable
(or which, if due and payable, are being contested in good faith and with
respect to which adequate reserves are being maintained to the extent required
by GAAP); (g) Liens not otherwise permitted by this definition and incurred in
the ordinary course of business of any or all of the Borrower, MOC or any
Subsidiary thereof with respect to obligations which do not exceed $500,000 in
principal amount in the aggregate at any one time outstanding; and (h) the
interests of lessees and lessors under leases of real or personal property made
in the ordinary course of business which would not have a Material Adverse
Effect.
23
"Person" means an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Plan" means at any time an employee pension benefit plan
(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 (i) is maintained, or contributed to, by any member of
the ERISA Group for employees of any member of the ERISA Group or (ii) 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.
"Prime Rate" means the rate of interest publicly announced by
Xxxxxx in New York City from time to time as its Prime Rate.
"Property Expenses" means, when used with respect to any Real
Property Asset, the costs of maintaining such Real Property Asset which are the
responsibility of the owner thereof and that are not paid directly by the tenant
thereof, including, without limitation, taxes, insurance, repairs and
maintenance, but provided that if such tenant is more than 90 days in arrears in
the payment of base or fixed rent, then such costs will also constitute
"Property Expenses", but excluding Capital Expenditures, depreciation,
amortization, general administrative and interest costs.
"Property Income" means, when used with respect to any Real
Property Asset, cash rents and other cash revenues received in the ordinary
course therefrom.
"Rating Agencies" means, collectively, S&P, Moody's, Xxxx &
Xxxxxx and Fitch.
"Real Property Assets" means as of any time, the real property
assets owned directly or indirectly by the Borrower, MOC or any Consolidated
Subsidiary of either the Borrower or MOC at such time, including, without
limitation, mortgage loans.
24
"Recourse Debt" shall mean Debt of the Borrower, MOC or any
Subsidiary that is not Non-Recourse Debt.
"Reference Bank" means the principal London offices of
Xxxxxx.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Related Fund" means, with respect to any Bank that is a fund
that invests in bank loans, any other fund that invests in bank loans and is
advised or managed by the same investment advisor as such Bank or by an
Affiliate of such investment advisor.
"Release" means any release, spill, emission, leaking,
pumping, pouring, dumping, emptying, deposit, discharge, leaching or migration.
"Required Banks" means, at any time, Banks having at least
66-2/3% of the aggregate amount of the Commitments or, if the Commitments shall
have been terminated, holding Notes evidencing at least 66 2/3% of the aggregate
unpaid principal amount of the Loans and Letter of Credit Usage.
"Requirements" means all present and future laws, statutes,
codes, ordinances, orders, judgments, decrees, injunctions, rules, regulations
and requirements of every Governmental Authority having jurisdiction over any
Real Property Asset and all restrictive covenants applicable to any Real
Property Asset.
"Security Conversion" has the meaning set forth in
Section 3.3(a).
"Security Documents" has the meaning set forth in
Section 3.3(a).
"Solvent" means, with respect to any Person, at the time of
determination: (i) the fair saleable value of its assets is in excess of the
total amount of its liabilities (including, without limitation, contingent
liabilities); (2) the present fair saleable value of its assets is greater than
its liability on its existing debts as such debts become absolute and matured;
and (3) it is then able
25
to pay its debts (including, without limitation, contingent debts and other
commitments) as they mature.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests representing either (i) direct or
indirect ordinary voting power to elect a majority of the board of directors or
other persons performing similar functions or (ii) a majority of the economic
interest therein, are at the time directly or indirectly owned by the Borrower
or MOC.
"S&P" means Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc., or any successor thereof.
"Term" has the meaning set forth in Section 2.9.
"Total Debt Ratio" means the ratio, as of the date of
determination, of (i) the sum, without duplication, of (x) the Total Liabilities
of the Borrower, MOC and their Consolidated Subsidiaries, and (y) the
Borrower's, MOC's and their Consolidated Subsidiaries' pro rata share of the
Total Liabilities of any Minority Holdings of the Borrower or MOC or their
Consolidated Subsidiaries, to (ii) Total Fair Market Value.
"Total Debt Service" means, as of the last day of each
calendar quarter, an amount equal to the sum of (i) interest (whether accrued,
paid or capitalized) actually payable by the Borrower, MOC or their Consolidated
Subsidiaries on their Debt for the previous four consecutive quarters including
the quarter then ended, plus (ii) the Borrower's, MOC's and their Consolidated
Subsidiaries' pro rata share of interest (whether accrued, paid or capitalized)
actually payable by any Minority Holdings of the Borrower or MOC or their
Consolidated Subsidiaries on their Debt for the previous four consecutive
quarters including the quarter then ended.
"Total Fair Market Value" means, the sum of (w) the sum of (A)
with respect to those Real Property Assets which are Healthcare Properties, the
quotient of (i) Annual EBITDA (which shall be calculated on an annualized basis,
commencing as of the quarter ending September 30, 1998, and from and after July
1, 1999, shall be calculated based upon the Annual EBITDA for the preceding four
quarters) with
26
respect thereto (or in the case of Healthcare Properties owned by Minority
Holdings, the Borrower's, MOC's or their Consolidated Subsidiaries' pro rata
share thereof) for the previous four (4) consecutive quarters, including the
quarter then ended, divided by (ii) 9.75%, (B) the book value of any Healthcare
Mortgages (or in the case of Healthcare Mortgages owned by Minority Holdings,
the Borrower's, MOC's or their Consolidated Subsidiaries' pro rata share
thereof), (C) with respect to those Real Property Assets which are Hotel
Properties, the sum of (x) the quotient of (i) Annual EBITDA (which shall be
calculated on an annualized basis, commencing as of the quarter ending September
30, 1998, and from and after July 1, 1999, shall be calculated based upon the
Annual EBITDA for the preceding four quarters) with respect thereto (or in the
case of Hotel Properties owned by Minority Holdings, the Borrower's, MOC's or
their Consolidated Subsidiaries' pro rata share thereof) for the previous four
(4) consecutive quarters, including the quarter then ended, less an amount equal
to 4% of gross revenues with respect thereto for such period for reserves for
furniture, fixtures and equipment and (ii) 10%, and (y) 50% of the book value of
any Real Property Asset which is a Hotel Property and which is a Construction
Asset (or in the case of Hotel Properties which are Construction Assets owned by
Minority Holdings, the Borrower's, MOC's or their Consolidated Subsidiaries'
pro rata share thereof), (D) the book value of the Borrower's and MOC's
investment resulting from the merger with Santa Xxxxx Realty Enterprises, Inc.
and Santa Xxxxx Operating Company, exclusive of any goodwill attributable
thereto, (E) with respect to each Real Property Asset which is a Golf Property,
the quotient of (i) Annual EBITDA (which shall be calculated on an annualized
basis, commencing as of the quarter ending September 30, 1998, and from and
after July 1, 1999, shall be calculated based upon the Annual EBITDA for the
preceding four quarters) (or in the case of Golf Properties which are owned by
Minority Holdings, the Borrower's, MOC's or their Consolidated Subsidiaries'
pro rata share thereof) with respect thereto for the previous four (4)
consecutive quarters, including the quarter then ended, less an amount equal to
5% of revenues as a reserve for Capital Expenditures, divided by (ii) 10.75%,
and (F) with respect to those assets which are not Healthcare Properties,
Healthcare Mortgages, Hotel Proper ties or Golf Properties, the purchase price
with respect to each thereof (or in the case of such assets which are owned by
Minority Holdings, the Borrower's, MOC's or their Consolidated Subsidiaries'
pro rata share thereof), exclusive of
27
any portion thereof attributable to goodwill, until such time as the Borrower,
the Administrative Agent and the Required Banks shall agree to a different
method of valuation of each thereof, (x) with respect to those Real Property
Assets described in clauses (A), (C) and (E) of clause (w) and owned for less
than the four previous consecutive quarters but owned for at least one (1) full
fiscal quarter, the lesser of (A) the purchase price for each thereof (or, in
the case of Minority Holdings, the Borrower's MOC's or their Consolidated
Subsidiaries' pro rata share thereof), and (B) the quotient of (i) Annual EBITDA
(or, in the case of Minority Holdings, the Borrower's MOC's or their
Consolidated Subsidiaries' pro rata share thereof) applicable to each such Real
Property Asset, and (ii) the applicable capitalization rate, (y) with respect to
those Real Property Assets described in clauses (A), (C) and (E) of clause (w)
and owned for less than one full quarter, the purchase price for each thereof
(or, in the case of Minority Holdings, the Borrower's MOC's or their
Consolidated Subsidiaries' pro rata share thereof), and (z) Cash or Cash
Equivalents of the Borrower, MOC and their Subsidiaries as of the date of
determination. In addition, for purposes of calculating covenant compliance as
of the Closing Date only, the purchase price of La Quinta Inns, Inc. and
Cobblestone Holdings, Inc. shall be deemed to be the actual purchase prices
thereof, inclusive of any amounts attributable to goodwill.
"Total Liabilities" means the sum of all Debt of a Person and
all accounts payable and all other liabilities of such Person.
"Tranche A Bank" means any Bank that has committed to fund a
portion of the Tranche A Loan.
"Tranche A Loan" means the revolving credit loan or loans to
be made to the Borrower for the purposes set forth in Section 5.16 hereof.
"Tranche A Loan Amount" has the meaning set forth
in Section 2.1.
"Tranche A Loan Commitment" means, with respect to each Bank,
the amount committed by such Bank pursuant to this Agreement with respect to the
Tranche A Loan as set forth on the signature pages hereto, as such amount may be
reduced from time to time pursuant to Sections 2.9, 2.10, 2.11 and 6.2.
28
"Tranche A Notes" means the promissory notes of the Borrower,
each substantially in the form of Exhibit A-1 hereto, evidencing the obligation
of the Borrower to repay the Tranche A Loan, and "Tranche A Note" means any one
of such promissory notes issued hereunder.
"Tranche B Bank" means any Bank that has committed to fund a
portion of the Tranche B Loan.
"Tranche B Loan" means the term loan or loans to be made to
the Borrower for the purposes set forth in Section 5.16 hereof.
"Tranche B Loan Amount" has the meaning set forth
in Section 2.1.
"Tranche B Loan Commitment" means, with respect to each Bank,
the amount committed by such Bank pursuant to this Agreement with respect to the
Tranche B Loan as set forth on the signature pages hereto, as such amount may be
reduced from time to time pursuant to Sections 2.9, 2.10, 2.11 and 6.2.
"Tranche B Notes" means the promissory notes of the Borrower,
each substantially in the form of Exhibit A-2 hereto, evidencing the obligation
of the Borrower to repay the Tranche B Loan, and "Tranche B Note" means any one
of such promissory notes issued hereunder.
"Tranche C Bank" means any Bank that has committed to fund a
portion of the Tranche C Loan.
"Tranche C Loan" means the term loan or loans to be made to
the Borrower for the purposes set forth in Section 5.16 hereof.
"Tranche C Loan Amount" has the meaning set forth
in Section 2.1.
"Tranche C Loan Commitment" means, with respect to each Bank,
the amount committed by such Bank pursuant to this Agreement with respect to the
Tranche C Loan as set forth on the signature pages hereto, as such amount may be
reduced from time to time pursuant to Sections 2.9, 2.10, 2.11 and 6.2.
29
"Tranche C Notes" means the promissory notes of the Borrower,
each substantially in the form of Exhibit A-3 hereto, evidencing the obligation
of the Borrower to repay the Tranche C Loan, and "Tranche C Note" means any one
of such promissory notes issued hereunder.
"Tranche D Bank" means any Bank that has committed to fund a
portion of the Tranche D Loan.
"Tranche D Loan" means the term loan or loans to be made to
the Borrower for the purposes set forth in Section 5.16 hereof.
"Tranche D Loan Amount" has the meaning set forth
in Section 2.1.
"Tranche D Loan Commitment" means, with respect to each Bank,
the amount committed by such Bank pursuant to this Agreement with respect to the
Tranche D Loan as set forth on the signature pages hereto, as such amount may be
reduced from time to time pursuant to Sections 2.9, 2.10, 2.11 and 6.2.
"Tranche D Notes" means the promissory notes of the Borrower,
each substantially in the form of Exhibit A-4 hereto, evidencing the obligation
of the Borrower to repay the Tranche D Loan, and "Tranche D Note" means any one
of such promissory notes issued hereunder.
"Unencumbered Asset Pool Net Operating Cash Flow" means, as of
any date of determination with respect to (A) the Unencumbered Asset Pool
Properties which are Healthcare Properties, Property Income with respect thereto
for the previous four (4) consecutive quarters (except as provided below),
including the quarter then ended, but less Property Expenses with respect
thereto for the previous four (4) consecutive quarters (except as provided
below), including the quarter then ended, (B) Healthcare Mortgages, the interest
received thereon for the previous four (4) consecutive quarters (except as
provided below), including the quarter then ended, (C) the Unencumbered Asset
Pool Properties which are Hotel Properties, Property Income with respect thereto
for the previous four (4) consecutive quarters (except as provided below),
including the quarter then ended, but less Property Expenses with respect
thereto for the previous four (4) consecutive quarters (except as provided
below), including the quarter then ended, and less an amount equal to 4%
30
of gross revenues for the applicable period for reserves for furniture, fixtures
and equipment, (D) each Real Property Asset which is a Golf Property operated by
the Borrower, MOC or any Consolidated Subsidiary, Property Income with respect
thereto for the previous four (4) consecutive quarters (except as provided
below), including the quarter then ended, but less Property Expenses with
respect thereto for the previous four (4) consecutive quarters (except as
provided below), including the quarter then ended, and less an amount equal to
5% of revenues as a reserve for Capital Expenditures, and (E) with respect to
those assets which are not Healthcare Properties, Healthcare Mortgages, Hotel
Properties or Golf Properties, Property Income with respect thereto for the
previous four (4) consecutive quarters (except as provided below), including the
quarter then ended, but less Property Expenses with respect thereto for the
previous four (4) consecutive quarters (except as provided below).
Notwithstanding the foregoing, with respect to any Unencumbered Asset Pool
Property owned by the Borrower, MOC or any of their Consolidated Subsidiaries
for a period of less than four (4) fiscal quarters, Unencumbered Asset Pool Net
Operating Cash Flow shall be determined in a manner consistent with the
foregoing calculation utilizing annualized Property Income, Property Expenses,
reserves and sales for the relevant period of the Borrower's, MOC's or any of
their Consolidated Subsidiaries' ownership of such Unencumbered Asset Pool
Property.
"Unencumbered Asset Pool Properties" means, as of any date,
the Real Property Assets listed in Exhibit B attached hereto and made a part
hereof, each of which is open for business and operating and each of which is a
Healthcare Mortgage or is 100% owned in fee (or leasehold in the case of assets
listed as such on Exhibit B) by the Borrower, MOC or any of their Consolidated
Subsidiaries and each of which is not subject to any Lien (other than Permitted
Liens and other than, in the case of Hotel Properties, Liens securing industrial
revenue bonds, representing less than 20% of the Unencumbered Asset Pool
Properties Value attributable to any such hotel property), together with all
Real Property Assets which have become part of the Unencumbered Asset Pool
Properties as of such date. In addition, in the case of any Real Property Asset
which is an Unencumbered Asset Pool Property owned by Consolidated Subsidiaries
of the Borrower or MOC, neither the Borrower or MOC shall, directly or
indirectly, pledge their interests in any such Consolidated Subsidiary nor shall
the Borrower or MOC permit
31
any such Consolidated Subsidiary to enter into any negative pledge with respect
thereto or to incur any Unsecured Debt.
"Unencumbered Asset Pool Properties Value" means:
(i) with respect to the Unencumbered Asset
Pool Properties owned by the Borrower, MOC or any of their Consolidated
Subsidiaries for a period of at least four (4) fiscal quarters, the sum of (A)
55% of the quotient of (x) the Unencumbered Asset Pool Net Operating Cash Flow
with respect to each Unencumbered Asset Pool Property which is a Healthcare
Property and (y) 9.75%, (B) 75% of the book value of any Healthcare Mortgages,
(C) 50% of the quotient of (x) the Unencumbered Asset Pool Net Operating Cash
Flow with respect to each Unencumbered Asset Pool Property which is a Hotel
Property, and (y) 10%, less an amount equal to the outstanding principal amount
of any industrial revenue bonds secured by Liens thereon, (D) 50% of the
quotient of (x) Unencumbered Asset Pool Net Operating Cash Flow with respect to
each Real Property Asset which is a Golf Property operated by the Borrower, MOC
or any Consolidated Subsidiary, divided by (y) 10.75%, and (E) with respect to
those assets which are not Core Asset Type, 50% of the purchase price with
respect to each thereof, exclusive of any portion thereof attributable to
goodwill; and
(ii) with respect to Unencumbered Asset Pool Properties owned
by the Borrower, MOC or any of their Consolidated Subsidiaries for a period of
less than four (4) fiscal quarters and more than one (1) fiscal quarter, the sum
of (x) 55% of the quotient of (x) the Unencumbered Asset Pool Net Operating Cash
Flow with respect to each Unencumbered Asset Pool Property which is a
Healthcare Property, and (y) 9.75%, (B) 75% of the book value of any Healthcare
Mortgages, (C) 50% of the quotient of (x) the Unencumbered Asset Pool Net
Operating Cash Flow with respect to each Unencumbered Asset Pool Property which
is a Hotel Property, and (y) 10%, less an amount equal to the outstanding
principal amount of any industrial revenue bonds secured by Liens thereon, (D)
50% of the quotient of (x) Unencumbered Asset Pool Net Operating Cash Flow with
respect to each Real Property Asset which is a Golf Property operated by the
Borrower, MOC or any Consolidated Subsidiary, divided by (y) 10.75%, and (E)
with respect to those assets which are not Healthcare Properties, Healthcare
Mortgages, Hotel Proper ties or Golf Properties, 50% of the purchase price with
32
respect to each thereof, exclusive of any portion thereof attributable to
goodwill; and
(iii) with respect to Unencumbered Asset Pool Properties owned
by the Borrower, MOC or any of their Consolidated Subsidiaries for a period of
less than one (1) fiscal quarter, (A) in the case of Healthcare Properties, 55%
of the purchase price for each thereof, exclusive of any portion thereof
attributable to goodwill, (B) in the case of Healthcare Mortgages, 75% of the
book value thereof, (C) in the case of Hotel Properties, 50% of the purchase
price for each thereof, exclusive of any portion thereof attributable to
goodwill, less an amount equal to the outstanding principal amount of any
industrial revenue bonds secured by Liens thereon, (D) in the case of Golf
Properties, 50% of the purchase price for each thereof, exclusive of any portion
thereof attributable to goodwill, and (E) in the case of any asset which is not
a Core Asset Type, 50% of the purchase price for each thereof, exclusive of any
portion thereof attributable to goodwill.
Notwithstanding anything contained herein to the contrary, in no event shall
more than 20% of the Unencumbered Asset Pool Properties Value be attributable to
assets of a type other than a Core Asset Type, and, in addition, no single type
of asset other than a Core Asset Type shall account for more than 10% of the
Unencumbered Asset Pool Properties Value, other than time sharing properties,
which may account for up to 15% of the Unencumbered Asset Pool Properties Value.
"Unfunded Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (i) 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 (ii) 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.
"United States" means the United States of America, including
the States and the District of Columbia, but excluding its territories and
possessions.
33
"Unsecured Debt" means Debt not secured by a Lien on any Real
Property Asset.
"Unsecured Debt Ratio" means, as of any date of determination,
the ratio of the Unencumbered Asset Pool Properties Value as of the date of
determination to the aggregate amount of Unsecured Debt of the Borrower, MOC and
their Consolidated Subsidiaries outstanding as of such date of determination.
"Unsecured Interest Expense" means, as of the last day of each
calendar quarter, an amount equal to the sum of (i) interest (whether accrued,
paid or capitalized) actually payable by the Borrower, MOC or their Consolidated
Subsidiaries on their Unsecured Debt for the previous four consecutive quarters
including the quarter then ended, plus (ii) the Borrower's, MOC's and their
Consolidated Subsidiaries' pro rata share of interest (whether accrued, paid or
capitalized) actually payable by any Minority Holdings of the Borrower, MOC or
their Consolidated Subsidiaries on their Unsecured Debt for the previous four
consecutive quarters including the quarter then ended.
"Unused Commitments" means an amount equal to all unadvanced
funds (other than unadvanced funds in connection with any construction loan)
which any third party is obligated to advance to the Borrower or otherwise,
pursuant to any Loan Document, written instrument or otherwise.
Section 1.2. Accounting Terms and Determinations. Unless
otherwise specified herein,1all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP, applied on a basis consistent (except for changes
concurred in by the Borrower's independent public accountants) with the most
recent audited combined consolidated financial statements of the Borrower
delivered to the Administrative Agent and the Banks; provided that, the Borrower
shall promptly notify the Administrative Agent of any change in GAAP that has a
material affect on the operation of any covenant, which notice shall include an
analysis of the effect of any such change, and provided further that, if the
Borrower notifies the Administrative Agent and the Banks that the Borrower
wishes to amend any covenant in Article V to eliminate the
34
effect of any change in GAAP on the operation of such covenant (or if the
Administrative Agent notifies the Borrower that the Required Banks wish to amend
Article V for such purpose), then the Borrower's compliance with such covenant
shall be determined on the basis of GAAP in effect immediately before the
relevant change in GAAP became effective, until either such notice is withdrawn
or such covenant is amended in a manner satisfactory to the Borrower and the
Required Banks.
Section 1.3. Types of Borrowings. The term "Borrowing" denotes
the aggregation of Loans of one or more Banks to be made to the Borrower
pursuant to Article II on the same date, all of which Loans are of the same type
(subject to Article VIII) and, except in the case of Base Rate Loans, have the
same Interest Period. Borrowings are classified for purposes of this Agreement
either by reference to the pricing of Loans comprising such Borrowing (e.g., a
"Euro-Dollar Borrowing" is a Borrowing comprised of Euro-Dollar Loans) or by
reference to the provisions of Article II under which participation therein is
determined (i.e., a "Committed Borrowing" is a Borrowing under Section 2.1 in
which all Banks participate in proportion to their Commitments, while a "Money
Market Borrowing" is a Borrowing under Section 2.3).
ARTICLE II
THE CREDITS
Section 2.1. Commitments to Lend.
(a) Tranche A Loan. Each Tranche A Bank severally agrees, on
the terms and conditions set forth in this Agreement, to make Tranche A Loans to
the Borrower and participate in Letters of Credit issued by the Fronting Bank on
behalf of the Borrower pursuant to this Section 2.1(a) from time to time during
the Term in amounts such that the aggregate principal amount of Tranche A Loans
made by such Bank at any one time outstanding together with such Bank's pro rata
share of Letter of Credit Usage with respect to the Borrower shall not exceed
the amount of its Tranche A Loan Commitment at such time. The aggregate amount
of Tranche A Loans (inclusive of all Money Market Loans) to be made hereunder
together with the Letter of Credit Usage with respect to the Borrower shall not
exceed
35
at any one time the lesser of (x) One Billion Dollars ($1,000,000,000) (the
"Tranche A Loan Amount") and (y) the aggregate Tranche A Loan Commitments then
in effect. Each Euro-Dollar Borrowing under this subsection (a) shall be in an
aggregate principal amount of at least $10,000,000, or an integral multiple of
$500,000 in excess thereof, and each Base Rate Borrowing under this subsection
(a) shall be in an aggregate principal amount of at least $10,000,000, or an
integral multiple of $500,000 in excess thereof, and in each case shall be made
from the several Banks ratably in proportion to their respective Tranche A Loan
Commitments. Subject to the limitations set forth herein, any Tranche A Loan
amounts repaid may be reborrowed; and
(b) Tranche B Loan. Each Tranche B Bank sever ally agrees, on
the terms and conditions set forth in this Agreement, to make the Tranche B Loan
on the Closing Date to the Borrower in an amount such that the aggregate
principal amount of the Tranche B Loan made by such Bank on the Closing Date
shall not exceed the amount of its Tranche B Loan Commitment then in effect. The
aggregate amount of the Tranche B Loan to be made hereunder shall not exceed
Five Hundred Million Dollars ($500,000,000) (the "Tranche B Loan Amount"). Any
Tranche B Loan amounts repaid may not be reborrowed.
(c) Tranche C Loan. Each Tranche C Bank severally agrees, on
the terms and conditions set forth in this Agreement, to make the Tranche C Loan
on the Closing Date to the Borrower in an amount such that the aggregate
principal amount of the Tranche C Loan made by such Bank on the Closing Date
shall not exceed the amount of its Tranche C Loan Commitment then in effect. The
aggregate amount of the Tranche C Loan to be made hereunder shall not exceed Two
Hundred Fifty Million Dollars ($250,000,000) (the "Tranche C Loan Amount"). Any
Tranche C Loan amounts repaid may not be reborrowed.
(d) Tranche D Loan. Each Tranche D Bank sever ally agrees, on
the terms and conditions set forth in this Agreement, to make the Tranche D Loan
on the Closing Date to the Borrower in an amount such that the aggregate
principal amount of the Tranche D Loan made by such Bank on the Closing Date
shall not exceed the amount of its Tranche D Loan Commitment then in effect. The
aggregate amount of the Tranche D Loan to be made hereunder shall not exceed
Five Hundred Million Dollars ($500,000,000) (the "Tranche D
36
Loan Amount"). Any Tranche D Loan amounts repaid may not be reborrowed.
Section 2.2. Notice of Committed Borrowing. (a) With respect
to Tranche A Loans, the Borrower shall give the Administrative Agent notice (a
"Notice of Committed Borrowing") not later than 10:00 a.m. (New York City time)
(x) one Domestic Business Day before each Base Rate Borrowing or (y) the third
Euro-Dollar Business Day before each Euro-Dollar Borrowing, specifying:
(1) the date of such Borrowing, which shall be a
Domestic Business Day in the case of a Base Rate Borrowing or a
Euro-Dollar Business Day in the case of a Euro-Dollar Borrowing,
(2) the aggregate amount of such Borrowing,
(3) whether the Loans comprising such Borrowing are
to be Base Rate Loans or Euro-Dollar Loans,
(4) in the case of a Euro-Dollar Borrowing, the
duration of the Interest Period applicable thereto, subject to the
provisions of the definition of Interest Period, and
(5) that no Default or Event of Default has occurred
or is continuing.
Notwithstanding the time frame set forth in clause (a)(x) above, in the event
that the Money Market Quotes submitted by the Banks pursuant to Section 2.3(d)
below are, in the aggregate, in an amount less than the principal amount
requested by the Borrower in the related Money Market Quote Request, then the
Borrower shall be permitted to give the Administrative Agent notice of its
intent to make a Base Rate Borrowing, in the amount of the difference between
accepted Money Market Quotes and the principal amount requested by the Borrower
in the related Money Market Quote Request, no later than 12:00 Noon (New York
City time) on the date of such Borrowing.
(b) With respect to the Tranche B Loan, the Tranche C Loan and
the Tranche D Loan, the Borrower shall give the Administrative Agent a Notice of
Committed Borrowing not later than 12:00 Noon (Eastern Time) (x) one Domes tic
Business Day before the Closing Date or (y) the third
37
Euro-Dollar Business Day before the Closing Date, specifying:
(1) whether the Loans comprising the Tranche B Loan,
the Tranche C Loan or the Tranche D Loan are to be Base Rate Loans or
Euro-Dollar Loans,
(2) in the case of a Euro-Dollar Borrowing, the
duration of the Interest Period applicable thereto, subject to the
provisions of the definition of Interest Period, and
(3) that no Default or Event of Default has occurred
or is continuing.
(c) The Borrower shall give the Administrative Agent, and the
designated Fronting Bank, a Notice of Committed Borrowing in the event that it
desires to have standby Letters of Credit (each, a "Letter of Credit") issued
hereunder no later than 10:00 a.m., New York City time, at least four (4)
Domestic Business Days prior to the date of such issuance. Each such notice
shall specify (i) the designated Fronting Bank, (ii) the aggregate amount of the
requested Letters of Credit, (iii) the individual amount of each requested
Letter of Credit and the number of Letters of Credit to be issued, (iv) the date
of such issuance (which shall be a Domestic Business Day), (v) the name and
address of the beneficiary, (vi) the expiration date of the Letter of Credit
(which in no event shall be later than twelve (12) months after the issuance of
such Letter of Credit or five Domestic Business Days prior to the Maturity Date
of the Tranche A Loans, whichever is earlier), (vii) the purpose and
circumstances for which such Letter of Credit is being issued and (viii) the
terms upon which each such Letter of Credit may be drawn down (which terms shall
not leave any discretion to Fronting Bank). Each such notice may be revoked
telephonically by the Borrower to the applicable Fronting Bank and the
Administrative Agent any time prior to the date of issuance of the Letter of
Credit by the applicable Fronting Bank, provided such revocation is confirmed in
writing by the Borrower to the Fronting Bank and the Administrative Agent within
one (1) Domestic Business Day by facsimile. No later than 10:00 a.m., New York
City time, on the date that is four (4) Domestic Business Days prior to the date
of issuance, the Borrower shall specify a precise description of the documents
and the verbatim text of any certificate
38
to be presented by the beneficiary of such Letter of Credit, which if presented
by such beneficiary prior to the expiration date of the Letter of Credit would
require the Fronting Bank to make a payment under the Letter of Credit;
provided, that the Fronting Bank may, in its reasonable judgment, require
changes in any such documents and certificates only in conformity with changes
in customary and commercially reasonable practice or law and, provided further,
that no Letter of Credit shall require payment against a conforming draft to be
made thereunder on the following Domestic Business Day that such draft is
presented if such presentation is made later than 10:00 A.M. New York City time
(except that if the beneficiary of any Letter of Credit requests at the time of
the issuance of its Letter of Credit that payment be made on the same Domestic
Business Day against a conforming draft, such beneficiary shall be entitled to
such a same day draw, provided such draft is presented to the applicable
Fronting Bank no later than 10:00 A.M. New York City time and provided further
the Borrower shall have requested to the Fronting Bank and the Administrative
Agent that such beneficiary shall be entitled to a same day draw). In
determining whether to pay on such Letter of Credit, the Fronting Bank shall be
responsible only to determine that the documents and certificates required to be
delivered under the Letter of Credit have been delivered and that they comply on
their face with the requirements of that Letter of Credit.
Notwithstanding anything contained herein to the contrary, the
Borrower and the Banks hereby acknowledge that NationsBank, N.A. and Fleet
National Bank have previously issued the letters of credit (the "Existing
Letters of Credit") more particularly described on Exhibit J attached hereto
for the accounts of La Quinta Inns, Inc., LQ-Baton Rouge Joint Venture, La
Quinta Development Partners, L.P., and the Borrower, and that for purposes of
this Agreement, the Existing Letters of Credit shall be deemed to be Letters of
Credit, with the same force and effect as though the Existing Letters of Credit
had been issued hereunder for the account of the Borrower. In addition, the
Borrower hereby accepts and assumes all the duties, liabilities and obligations
of the parties on whose behalf the Existing Letters of Credit were issued under
or in respect of the Existing Letters of Credit, and any other agreements or
applications made in connection therewith, and, without limiting the generality
of the foregoing, the Borrower
39
further agrees, immediately upon demand therefor by the applicable Fronting
Bank, to pay such Fronting Bank, and to reimburse such Fronting Bank for, any
and all amounts paid or expended by such Fronting Bank under or in connection
with any of the Existing Letters of Credit.
Section 2.3. Money Market Borrowings.
(a) The Money Market Option. In addition to Committed
Borrowings pursuant to Section 2.1, at such time as the Borrower's Credit Rating
is an Investment Grade Rating from S&P and Xxxxx'x, the Borrower may, as set
forth in this Section, request the Tranche A Banks during the Term to make
offers to make Money Market Loans to the Borrower, not to exceed, at such time,
the lesser of (i) the aggregate undrawn Tranche A Loan Commitments, less the
Letter of Credit Usage, and (ii) $350,000,000. The Tranche A Banks may, but
shall have no obligation to, make such offers and the Borrower may, but shall
have no obligation to, accept any such offers in the manner set forth in this
Section.
(b) Money Market Quote Request. When the Borrower wishes to
request offers to make Money Market Loans under this Section, it shall transmit
to the Administrative Agent by telex or facsimile transmission a notice of money
market borrowing (a "Money Market Quote Request") substantially in the form of
Exhibit D hereto so as to be received not later than 10:30 A.M. (New York City
time) on (x) the fourth Euro-Dollar Business Day prior to the date of Borrowing
proposed therein, in the case of a LIBOR Auction or (y) the Domestic Business
Day next preceding the date of Borrowing proposed therein, in the case of an
Absolute Rate Auction (or, in either case, such other time or date as the
Borrower and the Administrative Agent shall have mutually agreed and shall have
notified to the Tranche A Banks not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute Rate Auction for which
such change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall be a
Euro-Dollar Business Day in the case of a LIBOR Auction or a Domestic
Business Day in the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which
shall be $10,000,000 or a larger multiple of $500,000,
40
(iii) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of Interest
Period, and
(iv) whether the Money Market Quotes requested are
to set forth a Money Market Margin or a Money Market Absolute Rate.
The Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money Market Quote
Request shall be given within thirty days (or such other number of days as the
Borrower and the Administrative Agent may agree) of any other Money Market Quote
Request.
(c) Invitation for Money Market Quotes. Promptly upon receipt
of a Money Market Quote Request, the Administrative Agent shall send to the
Tranche A Banks by telex or facsimile transmission an Invitation for Money
Market Quotes substantially in the form of Exhibit E hereto (an "Invitation for
Money Market Quotes"), which shall constitute an invitation by the Borrower to
each Tranche A Bank to submit Money Market Quotes offering to make the Money
Market Loans to which such Money Market Quote Request relates in accordance with
this Section.
(d) Submission and Contents of Money Market Quotes. (i) Each
Tranche A Bank may submit a Money Market Quote containing an offer or offers to
make Money Market Loans in response to any Invitation for Money Market Quotes.
Each Money Market Quote must comply with the requirements of this subsection (d)
and must be submitted to the Administrative Agent by telex or facsimile
transmission at its offices specified in or pursuant to Section 9.1 not later
than (x) 10:00 A.M. (New York City time) on the third Euro-Dollar Business Day
prior to the proposed date of Borrowing, in the case of a LIBOR Auction or (y)
10:00 A.M. (New York City time) on the proposed date of Borrowing, in the case
of an Absolute Rate Auction (or, in either case, such other time or date as the
Borrower and the Administrative Agent shall have mutually agreed and shall have
notified to the Banks not later than the date of the Money Market Quote Request
for the first LIBOR Auction or Absolute Rate Auction for which such change is to
be effective); provided that Money Market Quotes submitted by the Administrative
Agent (or any affiliate of the Administra-
41
tive Agent) in the capacity of a Bank may be submitted, and may only be
submitted, if the Administrative Agent or such affiliate notifies the Borrower
of the terms of the offer or offers contained therein not later than fifteen
(15) minutes prior to the applicable deadline for the other Banks. Subject to
Articles III and VI, any Money Market Quote so made shall be irrevocable except
with the written consent of the Administrative Agent given on the instructions
of the Borrower. Such Money Market Loans may be funded by such Tranche A Bank's
Designated Lender (if any) as provided in Section 9.6(d), however such Bank
shall not be required to specify in its Money Market Quote whether such Money
Market Loans will be funded by such Designated Lender.
(ii) Each Money Market Quote shall be in substantially the
form of Exhibit F hereto and shall in any case specify:
(1) the proposed date of Borrowing,
(2) the principal amount of the Money Market Loan
for which each such offer is being made, which principal amount (w) may
be greater than or less than the Commitment of the quoting Tranche A
Bank, (x) must be $10,000,000 or a larger multiple of $500,000, (y) may
not exceed the principal amount of Money Market Loans for which offers
were requested and (z) may be subject to an aggregate limitation as to
the principal amount of Money Market Loans for which offers being made
by such quoting Tranche A Bank may be accepted,
(3) in the case of a LIBOR Auction, the margin above
or below the applicable London Interbank Offered Rate (the "Money
Market Margin") offered for each such Money Market Loan, expressed as a
percentage (specified to the nearest 1/10,000th of 1%) to be added to
or subtracted from such base rate,
(4) in the case of an Absolute Rate Auction, the
rate of interest per annum (specified to the nearest 1/10,000th of 1%)
(the "Money Market Absolute Rate") offered for each such Money Market
Loan, and
(5) the identity of the quoting Tranche A Bank.
42
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(1) is not substantially in conformity with Exhibit F
hereto or does not specify all of the information required by
subsection (d)(ii) above;
(2) contains qualifying, conditional or
similar language;
(3) proposes terms other than or in addition to
those set forth in the applicable Invitation for Money Market Quotes;
or
(4) arrives after the time set forth in subsection
(d)(i).
(e) Notice to the Borrower. The Administrative Agent shall
promptly notify the Borrower (x) with respect to each Money Market Quote
submitted in accordance with subsection (d), of the terms of such Money Market
Quote and the identity of the Tranche A Bank submitting such Money Market Quote
and (y) of any Money Market Quote that amends, modifies or is otherwise
inconsistent with a previous Money Market Quote submitted by such Bank with
respect to the same Money Market Quote Request. Any such subsequent Money Market
Quote shall be disregarded by the Administrative Agent unless such subsequent
Money Market Quote is submitted solely to correct a manifest error in such
former Money Market Quote. The Administrative Agent's notice to the Borrower
shall specify (A) the aggregate principal amount of Money Market Loans for which
offers have been received for each Interest Period specified in the related
Money Market Quote Request, (B) the respective principal amounts and Money
Market Margins or Money Market Absolute Rates, as the case may be, so offered
and (C) if applicable, limitations on the aggregate principal amount of Money
Market Loans for which offers in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by the Borrower. Not later than
12:00 noon (New York City time) on (x) the third Euro-Dollar Business Day prior
to the proposed date of
43
Borrowing, in the case of a LIBOR Auction or (y) the pro posed date of
Borrowing, in the case of an Absolute Rate Auction (or, in either case, such
other time or date as the Borrower and the Administrative Agent shall have
mutually agreed and shall have notified to the Tranche A Banks not later than
the date of the Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be effective), the Borrower
shall notify the Administrative Agent of its acceptance or non-acceptance of the
offers so notified to it pursuant to subsection (e). In the case of acceptance,
such notice (a "Notice of Money Market Borrowing") shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. The
Borrower may accept any Money Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money
Market Borrowing may not exceed the applicable amount set forth in the
related Money Market Quote Request;
(ii) the principal amount of each Money Market
Borrowing must be $10,000,000 or a larger multiple of $500,000;
(iii) acceptance of offers may only be made on the
basis of ascending Money Market Margins or Money Market Absolute Rates,
as the case may be; and
(iv) the Borrower may not accept any offer that is
described in subsection (d)(iii) or that otherwise fails to comply with
the requirements of this Agreement.
(g) Allocation by Administrative Agent. If offers are made by
two or more Tranche A Banks with the same Money Market Margins or Money Market
Absolute Rates, as the case may be, for a greater aggregate principal amount
than the amount in respect of which such offers are accepted for the related
Interest Period, the principal amount of Money Market Loans in respect of which
such offers are accepted shall be allocated by the Administra tive Agent among
such Tranche A Banks as nearly as possible (in multiples of $500,000, as the
Administrative Agent may deem appropriate) in proportion to the aggregate
principal amounts of such offers. Determinations by the Xxxxxxxxxx-
00
tive Agent of the amounts of Money Market Loans shall be conclusive in the
absence of manifest error.
(h) Notification by Administrative Agent. Upon receipt of the
Borrower's Notice of Money Market Borrowing in accordance with Section 2.3(f)
hereof, the Administra tive Agent shall, on the date such Notice of Money Market
Borrowing is received by the Administrative Agent, notify each Tranche A Bank of
the principal amount of the Money Market Borrowing accepted by the Borrower and
of such Tranche A Bank's share (if any) of such Money Market Borrowing and such
Notice of Money Market Borrowing shall not thereafter be revocable by the
Borrower. A Tranche A Bank who is notified that it has been selected to make a
Money Market Loan may designate its Designated Lender (if any) to fund such
Money Market Loan on its behalf, as described in Section 9.6(d). Any Designated
Lender which funds a Money Market Loan shall on and after the time of such
funding become the obligee under such Money Market Loan and be entitled to
receive payment thereof when due. No Tranche A Bank shall be relieved of its
obligation to fund a Money Market Loan, and no Designated Lender shall assume
such obligation, prior to the time the applicable Money Market Loan is funded.
Section 2.4. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Committed Borrowing, the
Administrative Agent shall notify each Bank on the same day as it receives the
Notice of Committed Borrowing of the contents thereof and of such Bank's share
of such Borrowing and such Notice of Committed Borrowing shall not thereafter be
revocable by the Borrower except as may be permitted pursuant to Article VIII
hereof.
(b) Not later than 2:00 P.M. (New York City time) on the date
of each Committed Borrowing, each Bank shall make available its share of such
Committed Borrowing, in Federal or other funds immediately available in New York
City, to the Administrative Agent at its address referred to in Section 9.1. The
Administrative Agent will make the funds so received from the Banks available to
the Borrower at the Administrative Agent's aforesaid address. If the Borrower
has requested the issuance of a Letter of Credit, no later than 12:00 Noon (New
York City time) on the date of such issuance as indicated in the notice
delivered pursuant to Section 2.2(c), the Fronting Bank shall issue
45
such Letter of Credit in the amount so requested and deliver the same to the
Borrower with a copy thereof to the Administrative Agent. Immediately upon the
issuance of each Letter of Credit by the Fronting Bank, such Fronting Bank shall
be deemed to have sold and transferred to each other Tranche A Bank, and each
such other Tranche A Bank shall be deemed, and hereby agrees, to have
irrevocably and unconditionally purchased and received from the Fronting Bank,
without recourse or warranty, an undivided interest and a participation in such
Letter of Credit, any drawing thereunder, and the obligations of the Borrower
hereunder with respect thereto, and any security therefor or guaranty pertaining
thereto, in an amount equal to such Tranche A Bank's ratable share thereof
(based upon the ratio its Tranche A Loan Commitment bears to the aggregate of
all Tranche A Loan Commitments). Upon any change in any of the Tranche A Loan
Commitments in accordance herewith, there shall be an automatic adjustment to
such participations to reflect such changed shares. The Fronting Bank shall have
the primary obligation to fund any and all draws made with respect to such
Letter of Credit notwithstanding any failure of a participating Tranche A Bank
to fund its ratable share of any such draw. The Administrative Agent will
instruct the Fronting Bank to make such Letter of Credit available to the
Borrower and the Fronting Bank shall make such Letter of Credit available to the
Borrower at the Borrower's aforesaid address or at such address in the United
States as the Borrower shall request on the date of the Borrowing.
(c) Unless the Administrative Agent shall have received notice
from a Bank prior to the date of any Borrowing that such Bank will not make
available to the Administrative Agent such Bank's share of such Borrowing, the
Administrative Agent may assume that such Bank has made such share available to
the Administrative Agent on the date of such Borrowing in accordance with
subsection (b) of this Section 2.4 and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so made
such share available to the Administrative Agent, such Bank and the Borrower
severally agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent, at
46
(i) in the case of the Borrower, a rate per annum equal to the interest rate
applicable thereto pursuant to Section 2.7 and (ii) in the case of such Bank,
the Federal Funds Rate. If such Bank shall repay to the Administrative Agent
such corresponding amount, such amount so repaid shall constitute such Bank's
Loan included in such Borrowing for purposes of this Agreement.
Section 2.5. Notes.
(a) The Loans shall be evidenced by the Notes, each of which
shall be payable to the order of each Bank for the account of its Applicable
Lending Office in an amount equal to each such Bank's respective Commitment(s).
(b) Each Bank may, by notice to the Borrower and the
Administrative Agent, request that its Tranche A Loans, Tranche B Loans, Tranche
C Loans and Tranche D Loans, respectively, of a particular type be evidenced by
a separate Note in an amount equal to the aggregate unpaid principal amount of
such Loans. Each such Note shall be in substantially the form of Exhibit X-0,
X-0, X-0 or A-4 hereto, with appropriate modifications to reflect the fact that
it evidences solely Loans of the relevant type. Each reference in this Agreement
to the "Note" of such Bank shall be deemed to refer to and include any or all of
such Notes, as the context may require.
(c) Upon receipt of each Bank's Note, the Administrative Agent
shall forward such Note to such Bank. Each Bank shall record the date, amount,
type and maturity of each Loan made by it and the date and amount of each
payment of principal made by the Borrower with respect thereto, and may, if such
Bank so elects in connection with any transfer or enforcement of its Note,
endorse on the schedule forming a part thereof appropriate notations to evidence
the foregoing information with respect to each such Loan then outstanding;
provided that the failure of any Bank to make any such recordation or
endorsement, or any error in such notation or endorsement, shall not affect the
obligations of the Borrower hereunder or under the Notes. Each Bank is hereby
irrevocably authorized by the Borrower so to endorse its Note and to attach to
and make a part of its Note a continuation of any such schedule as and when
required.
47
(d) There shall be no more than ten (10) Euro-Dollar
Borrowings outstanding at any one time pursuant to this Agreement.
Section 2.6. Maturity of Loans. The Loans shall mature, and
the principal amount thereof shall be due and payable, on the respective
Maturity Date thereof.
Section 2.7. Interest Rates.
(a) Each Base Rate Loan with respect to each Tranche A Loan,
Tranche B Loan, Tranche C Loan or Tranche D Loan, as applicable, shall bear
interest on the outstanding principal amount thereof, for each day from the date
such Loan is made until it becomes due, at a rate per annum equal to the sum of
the Applicable Margin then in effect plus the Base Rate for such day. Such
interest shall be payable for each Interest Period on the last day thereof.
(b) Each Euro-Dollar Loan with respect to each Tranche A Loan,
Tranche B Loan, Tranche C Loan or Tranche D Loan, as applicable, shall bear
interest on the outstanding principal amount thereof, for each day during the
Interest Period applicable thereto, at a rate per annum equal to the sum of the
Applicable Margin then in effect plus the Adjusted London Interbank Offered Rate
for such day.
Such interest shall be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months, at intervals of three
months after the first day thereof.
"Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upward, if necessary, to the next higher 1/100 of 1%) by dividing (i) the
applicable London Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar
Reserve Percentage.
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Federal Reserve Board (or any successor) for determining the
maximum re serve requirement for a member bank of the Federal Reserve System in
New York City with deposits exceeding five billion dollars in respect of
"Eurocurrency liabilities" (or
48
in respect of any other category of liabilities which includes deposits by
reference to which the interest rate on Euro-Dollar Loans is determined or any
category of extensions of credit or other assets which includes loans by a
non-United States office of any Bank to United States residents). The Adjusted
London Interbank Offered Rate shall be adjusted automatically on and as of the
effective date of any change in the Euro-Dollar Reserve Percentage.
"London Interbank Offered Rate" applicable to any Interest
Period means the average (rounded upward, if necessary, to the next higher 1/16
of 1%) of the respective rates per annum at which deposits in dollars are
offered to the Reference Bank in the London interbank market at approximately
11:00 a.m. (London time) two Euro-Dollar Business Days before the first day of
such Interest Period in an amount approximately equal to the principal amount of
the Euro-Dollar Loan of such Reference Bank to which such Interest Period is to
apply and for a period of time comparable to such Interest Period.
(c) Subject to Section 8.1, each Money Market LIBOR Loan shall
bear interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the sum of the London
Interbank Offered Rate for such Interest Period (determined in accordance with
Section 2.3(f) as if the related Money Market LIBOR Loan were a Committed Loan
which is a Euro-Dollar Borrowing) plus (or minus) the Money Market Margin quoted
by the Bank making such Loan in accordance with Section 2.3. Each Money Market
Absolute Rate Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate per annum equal
to the Money Market Absolute Rate quoted by the Bank making such Loan in
accordance with Section 2.3. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than
ninety days, at intervals of ninety days after the first day thereof.
(d) In the event that, and for so long as, any Event of
Default shall have occurred and be continuing, the outstanding principal amount
of the Loans, and, to the extent permitted by law, overdue interest in respect
of all Loans, shall bear interest at the annual rate of the sum of the Base Rate
and four percent (4%).
49
(e) The Administrative Agent shall determine each interest
rate applicable to the Loans hereunder. The Administrative Agent shall give
prompt notice to the Borrower and the Banks of each rate of interest so
determined, and its determination thereof shall be conclusive in the absence of
manifest error.
(f) The Reference Bank agrees to use its best efforts to
furnish quotations to the Administrative Agent as contemplated by this Section.
If the Reference Bank does not furnish a timely quotation, the provisions of
Section 8.1 shall apply.
Section 2.8. Fees.
(a) Facility Fee. (i) During the Term, prior to the Conversion
Date and until such time as the Tranche B Loans and the Tranche C Loans shall
have been repaid in full, the Borrower shall pay to the Administrative Agent for
the account of the Banks ratably in proportion to their respective Tranche A
Loan Commitments, a facility fee on the daily average Tranche A Loan Commitments
in any given quarter at a percentage per annum equal to 0.375%.
(ii) During the Term, prior to the Conversion Date
and from and after such time as the Tranche B Loans and the Tranche C Loans
shall have been repaid in full, the Borrower shall pay to the Administrative
Agent for the account of the Banks ratably in proportion to their respective
Tranche A Loan Commitments, a facility fee on the daily average Tranche A Loan
Commitments in any given quarter at the respective percentages per annum based
upon the Borrower's Credit Rating in accordance with the following table:
Borrower's Credit Rating Applicable Facility Fee
(% per annum)
---------------------------------------------------- ---------------------------
BBB+/Baa1 (or better) 0.15%
BBB/Baa2 0.175%
BBB-/Baa3 0.20%
BB+/Ba1 or below or no rating 0.375%
50
(iii) During the Term, prior to the Conversion Date,
the Borrower shall pay to the Administrative Agent for the account of the Banks
ratably in proportion to their respective Tranche B Loan Commitments, a facility
fee on the daily average Tranche B Loan Commitments in any given quarter at a
percentage per annum equal to 0.375%.
(iv) During the Term, prior to the Conversion Date,
the Borrower shall pay to the Administrative Agent for the account of the Banks
ratably in proportion to their respective Tranche C Loan Commitments, a facility
fee on the daily average Tranche C Loan Commitments in any given quarter at a
percentage per annum equal to 0.375%.
(v) During the Term, prior to the Conversion Date,
the Borrower shall pay to the Administrative Agent for the account of the Banks
ratably in proportion to their respective Tranche D Loan Commitments, a facility
fee on the daily average Tranche D Loan Commitments in any given quarter at a
percentage per annum equal to 0.375%.
(vi) During the Term, from and after the
Conversion Date, the Borrower shall pay to the Administra tive Agent for the
account of the Banks ratably in proportion to their respective Tranche A Loan
Commitments, Tranche B Loan Commitments, Tranche C Loan Commitments and Tranche
D Loan Commitments, in any given quarter at the respective percentages per annum
based upon the range into which the Total Debt Ratio then falls in accordance
with the following table:
Total Debt Ratio Applicable Commitment Fee
(% per annum)
-------------------------------------------------- ----------------------------
less than 50% 0.25%
equal to or greater than 50% 0.375%
The facility fee with respect to Tranche A Loans shall be payable quarterly, in
arrears, on each January 1, April 1, July 1, and October 1, as well as on the
applicable Maturity Date, during the Term and any extensions thereof. The
facility fee with respect to Tranche B Loans, Tranche C Loans and Tranche D
Loans shall be payable on the last day of each Interest Period and, if such
Interest Period is longer than three months, at intervals of three months
51
after the first day thereof, i.e. simultaneously with the payment of interest in
accordance with the provisions of Section 2.7. Any change in the Borrower's
Credit Rating or Total Debt Ratio causing it to move into a different range on
the applicable table shall effect a change in the applicable percentage per
annum effective as of the date, in the case of a change in the Credit Rating of
the Borrower, on which any of the Rating Agencies announces a change in the
Borrower's Credit Rating or the date on which the Borrower has no Credit Rating,
whichever is applicable, or in the case of a change in the Total Debt Ratio, on
which the Borrower delivers, or was required to have delivered, the certificate
pursuant to Section 5.1(c) hereof, whichever is earlier. If the Borrower shall
fail to deliver such certificate in accordance with Section 5.1(c) hereof, then
the Total Debt Ratio shall be deemed to be greater than 50%. In the event that
the Borrower's Credit Rating is such that the Rating Agencies' ratings are split
between a higher and a lower rating, the applicable percentage per annum shall
be based upon the lower of such two (2) Borrower's Credit Ratings unless such
Borrower's Credit Ratings are more than two levels apart, in which event, the
middle level shall apply (or if there shall be no middle level as a result of
the Credit Ratings being three levels apart, then the lower of the two "middle"
levels).
(b) Letter of Credit Fee. During the Term, the Borrower shall
pay to the Administrative Agent, for the account of the Tranche A Banks in
proportion to their interests in respective undrawn issued Letters of Credit, a
fee (a "Letter of Credit Fee") in an amount, provided that no Event of Default
shall have occurred and be continuing, equal to a rate per annum equal to the
Applicable Margin with respect to Tranche A Loans which are Euro-Dollar Loans on
the daily average of such issued and undrawn Letters of Credit, which fee shall
be payable, in arrears, on each January 1, April 1, July 1 and October 1 during
the Term. From the occurrence, and during the continuance, of an Event of
Default, such fee shall be increased to be equal to four percent (4%) per annum
on the daily average of such issued and undrawn Letters of Credit.
(c) Fronting Bank Fee. The Borrower shall pay any Fronting
Bank, for its own account, a fee (a "Fronting Bank Fee") equal to .15% on the
daily average of such issued and undrawn Letters of Credit, which fee shall be
in
52
addition to and not in lieu of, the Letter of Credit Fee. The Fronting Bank Fee
shall be payable in arrears on each January 1, April 1, July 1 and October 1
during the Term.
(d) Extension Fee. On or before July 15, 1999, provided that
the Borrower has delivered the Notice to Extend pursuant to Section 2.9(b), the
Borrower shall pay to the Administrative Agent for the account of the Banks
ratably in proportion to their Tranche C Loan Commitments an extension fee (the
"Extension Fee") of .125% of the Tranche C Loan Commitments outstanding as of
such date.
(e) Fees Non-Refundable. All fees set forth in this Section
2.8 shall be deemed to have been earned on the date payment is due in accordance
with the provisions hereof and shall be non-refundable. The obligation of the
Borrower to pay such fees in accordance with the provisions hereof shall be
binding upon the Borrower and shall inure to the benefit of the Administrative
Agent and the Banks regardless of whether any Loans are actually made.
Section 2.9. Mandatory Termination. (a) The term (the "Term")
of the Commitments shall terminate and expire, all Loans under the respective
Tranches shall be repaid, and the Borrower shall return or cause to be re turned
all Letters of Credit to the Fronting Bank, as follows (in each case, the
"Maturity Date"):
Loan Maturity Date
---- -------------
Tranche A Loans/
Letters of Credit July 17, 0000
Xxxxxxx X Loan July 17, 1999
Tranche C Loan July 17, 1999, as the
same may be extended
as hereinafter provided
Tranche D Loan July 17, 2001
(b) The Borrower shall have one option (the "Extension
Option") to extend the Maturity Date with respect to the Tranche C Loan for a
period of six (6) months. Subject to the conditions set forth below, the
Borrower may exercise the Extension Option by delivering a written notice to the
Administrative Agent not more than four months or less than one month prior to
the Maturity Date of the Tranche C Loan (a "Notice to Extend"), stating that the
53
Borrower has elected to extend the Maturity Date for six (6) months. The
Borrower's delivery of the Notice to Extend shall be irrevocable. In no event
shall the Maturity Date with respect to the Tranche C Loan occur later than
eighteen (18) months after the Closing Date. The Borrower's right to exercise
the Extension Option shall be subject to the following terms and conditions: (i)
no Event of Default shall have occurred and be continuing either on the date the
Borrower delivers the Notice to Extend to the Administrative Agent or on the
date that the Tranche C Loan would otherwise have been payable, (ii) the
Borrower shall have paid the Extension Fee, together with such amounts as are
required pursuant to Section 2.10(c) on or before the date that the Tranche C
Loan would otherwise have been payable, and (iii) the Borrower shall be in
compliance with the provisions of Section 5.8 hereof.
Section 2.10. Mandatory Prepayment.
(a) In the event that the Unsecured Debt Ratio is not
maintained in accordance with Section 5.8(e) as of the last day of a calendar
quarter, the Borrower shall prepay to the Administrative Agent, for the account
of the Banks, the Tranche A Loans, the Tranche B Loans, the Tranche C Loans or
the Tranche D Loans, in that order, in an amount sufficient to cause the
Unsecured Debt Ratio to be in compliance with the provisions of Section 5.8(e)
simultaneously with delivery of the certificate required to be delivered
pursuant to Section 5.1(c) (or if the Borrower shall fail to deliver any such
certificate, then on the date on which such certificate should have been
delivered). Failure by the Borrower to so prepay the Tranche A Loans, the
Tranche B Loans, the Tranche C Loans or the Tranche D Loans, in such order of
priority, so as to comply with the provisions of Section 5.8(e) shall be an
Event of Default.
(b) With respect to Tranche A Loans, to the extent that Net
Offering Proceeds or Net Cash Proceeds are not required pursuant to Section
2.10(d) or (e) hereof to repay Tranche B Loans or Tranche C Loans, then the
balance of any such Net Offering Proceeds and Net Cash Proceeds, net of any
amounts which the Borrower anticipates reinvesting in Real Property Assets or
other assets within ten (10) days after receipt thereof (provided, however, that
if the Borrower shall not in fact so reinvest such funds within such ten (10)
day period, the Borrower shall immediately apply the same in prepayment of the
Tranche A Loans), shall
54
be applied by the Borrower, simultaneously with receipt thereof, to prepay the
Tranche A Loans. Notwithstanding the foregoing, however, in the event that the
balance of the Net Offering Proceeds and the Net Cash Proceeds shall be less
than $2,500,000 in any one case or $10,000,000 in the aggregate, then, provided
that no Event of Default shall have occurred and be outstanding, the Borrower
may retain the same.
(c) With respect to the Tranche B Loan, on or before April 15,
1999, the Borrower shall prepay the Tranche B Loans in an amount not less than
$250,000,000 in the aggregate, inclusive of all amounts paid pursuant to Section
2.10(a), (d) and Section 2.11. On or before July 15, 1999, the Borrower shall
prepay the balance of the Tranche B Loans.
(d) With respect to Tranche B Loans, the Borrower shall apply
fifty percent (50%) of all Net Offering Proceeds simultaneously with receipt
thereof to prepay the Tranche B Loans.
(e) At such time as the Tranche B Loans shall have been repaid
in full, the Borrower shall apply fifty percent (50%) of all Net Offering
Proceeds simultaneously with receipt thereof to prepay the Tranche C Loans.
(f) At such time as the Tranche C Loans shall have been repaid
in full, then the balance of any such Net Offering Proceeds and Net Cash
Proceeds, net of any amounts which the Borrower anticipates reinvesting in Real
Property Assets or other assets within ten (10) days after receipt thereof
(provided, however, that if the Borrower shall not in fact so reinvest such
funds within such ten (10) day period, the Borrower shall immediately apply the
same in prepayment of the Tranche A Loans), shall be applied by the Borrower,
simultaneously with receipt thereof, to prepay the Tranche A Loans.
Notwithstanding the foregoing, how ever, in the event that the balance of the
Net Offering Proceeds and the Net Cash Proceeds shall be less than $2,500,000 in
any one case or $10,000,000 in the aggregate, then, provided that no Event of
Default shall have occurred and be outstanding, the Borrower may retain the
same.
(g) Amounts prepaid pursuant to this Section 2.10 with respect
to Tranche A Loans may be reborrowed. Amounts prepaid pursuant to this Section
2.10 with respect
55
to Tranche B Loans, Tranche C Loans and/or Tranche D Loans may not be
reborrowed.
Section 2.11. Optional Prepayments.
(a) The Borrower may, upon at least one Domestic Business
Day's notice (which notice shall specify whether the Loans so being prepaid
constitute a part of a Tranche A Loan, a Tranche B Loan, a Tranche C Loan or a
Tranche D Loan) to the Administrative Agent, prepay to the Administrative
Agent, for the account of the Banks, any Base Rate Borrowing in whole at any
time, or from time to time in part in amounts aggregating Ten Million Dollars
($10,000,000), or an integral multiple of Five Hundred Thousand Dollars
($500,000) in excess thereof or, if less, the outstanding principal balance, by
paying the principal amount to be prepaid together with accrued interest thereon
to the date of prepayment. Each such optional prepayment shall be applied to
prepay ratably the Loans of the several Banks included in such Borrowing.
(b) Except as provided in Section 8.2, the Borrower may not
prepay all or any portion of the principal amount of any Euro-Dollar Loan prior
to the maturity thereof unless the Borrower shall also pay any applicable
expenses pursuant to Section 2.13. Any such prepayment shall be upon at least
three (3) Euro-Dollar Business Days' notice to the Administrative Agent. Any
notice of prepayment delivered pursuant to this Section 2.11(b) shall set forth
the amount of such prepayment which is applicable to any Loan made for working
capital purposes, as well as whether the Loans so being prepaid constitute a
part of a Tranche A Loan, a Tranche B Loan, a Tranche C Loan or a Tranche D
Loan. Each such optional prepayment shall be in the amounts set forth in Section
2.11(a) above and shall be applied to prepay ratably the Loans of the Banks
included.
(c) The Borrower may not prepay any Money Market Loan without
the consent of the respective Tranche A Bank that made such Money Market Loan.
(d) The Borrower may not prepay all or any portion of the
Tranche C Loan prior to repayment in full of the Tranche B Loan. The Borrower
may not prepay all or any part of the Tranche D Loan prior to repayment in full
of the Tranche A Loan, the Tranche B Loan and the Tranche C Loan.
56
(e) The Borrower may, upon at least one (1) Domestic Business
Day's notice to the Administrative Agent (by 11:00 a.m. New York time on such
Domestic Business Day), reimburse the Administrative Agent for the benefit of
the Fronting Bank for the amount of any drawing under a Letter of Credit in
whole or in part in any amount.
(f) The Borrower may at any time return any undrawn Letter of
Credit to the Fronting Bank in whole, but not in part, and the Fronting Bank
shall give the Administrative Agent and each of the Banks notice of such
return.
(g) The Borrower may at any time and from time to time cancel
all or any part of the Tranche A Loan Commitments in amounts aggregating Ten
Million Dollars ($10,000,000), or an integral multiple of Five Hundred Thousand
Dollars ($500,000) in excess thereof, by the delivery to the Administrative
Agent and the Banks of a notice of cancellation upon at least three (3) Domestic
Business Days' notice to Administrative Agent and the Banks, whereupon, all or
such portion of the Tranche A Loan Commitments shall terminate as to the Banks,
pro rata on the date set forth in such notice of cancellation, and, if there are
any Loans then outstanding in an aggregate amount which exceeds the aggregate
Commitments (after giving effect to any such reduction), the Borrower shall
prepay to the Administrative Agent, for the account of the Banks, all or such
portion of Tranche A Loans outstanding on such date in accordance with the
requirements of Sections 2.11(a) and (b). In no event shall the Borrower be
permitted to cancel Tranche A Loan Commitments for which a Letter of Credit has
been issued and is outstanding unless the Borrower returns (or causes to be
returned) such Letter of Credit to the Fronting Bank. The Borrower shall be
permitted to designate in its notice of cancellation which Loans, if any, are
to be prepaid.
(h) Upon receipt of a notice of prepayment or cancellation or
a return of a Letter of Credit pursuant to this Section, the Administrative
Agent shall promptly, and in any event within one (1) Domestic Business Day,
notify each Bank of the contents thereof and of such Bank's rat able share (if
any) of such prepayment or cancellation and such notice shall not thereafter be
revocable by the Borrower.
57
(i) Any amounts so prepaid pursuant to this Section 2.11 with
respect to Tranche A Loans may be reborrowed subject to the other terms of this
Agreement. Any amounts so prepaid pursuant to this Section 2.11 with respect to
Tranche B Loans, the Tranche C Loans or the Tranche D Loans may not be
reborrowed subject to the other terms of this Agreement. In the event that the
Borrower elects to cancel all or any portion of the Tranche A Loan Commitments
pursuant to Section 2.11(g) hereof, such amounts may not be reborrowed.
Section 2.12. General Provisions as to Payments.
(a) The Borrower shall make each payment of principal of, and
interest on, the Loans and of fees here under, without deduction, setoff or
counterclaim, not later than 12:00 Noon (New York City time) on the date when
due, in Federal or other funds immediately available in New York City, to the
Administrative Agent at its address referred to in Section 9.1. Payments
received by the Administrative Agent after such time shall be deemed to have
been received on the next Domestic Business Day. The Administrative Agent will
distribute to each Bank its ratable share of each such payment received by the
Administrative Agent for the account of the Banks on the same day as received by
the Administrative Agent if received by the Administrative Agent by 1:00 p.m.
(New York City time), or, if received by the Administrative Agent after 1:00
p.m. (New York City time), on the immediately following Domestic Business Day.
If the Administrative Agent shall fail to distribute to a Bank its ratable share
of a payment on the same day it is received or the immediately following
Domestic Business Day, as applicable in accordance with the immediately
preceding sentence, the Administrative Agent shall pay to such Bank the interest
accrued on such payment at the Federal Funds Rate, commencing on the day the
Administra tive Agent should have made the payment to such Bank and ending on
the day prior to the date payment is actually made. Whenever any payment of
principal of, or interest on, the Base Rate Loans or of fees shall be due on a
day which is not a Domestic Business Day, the date for payment thereof shall be
extended to the next succeeding Domestic Business Day. Whenever any payment of
principal of, or interest on, the Euro-Dollar Loans shall be due on a day which
is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding
58
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another
calendar month, in which case the date for payment thereof shall be the next
preceding Euro-Dollar Business Day. If the date for any payment of principal is
extended by operation of law or otherwise, interest thereon shall be payable for
such extended time.
(b) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the Banks
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent that
the Borrower shall not have so made such payment, each Bank shall repay to the
Administra tive Agent forthwith on demand such amount distributed to such Bank
together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Administrative Agent, at the Federal Funds Rate.
Section 2.13. Funding Losses. If the Borrower makes any
payment of principal with respect to any Euro-Dollar Loan (pursuant to Article
II, VI or VIII or other wise, and specifically including any payments made
pursuant to Sections 2.10 or 2.11) on any day other than the last day of the
Interest Period applicable thereto, or if the Borrower fails to borrow any
Euro-Dollar Loans or convert any Base Rate Loan into a Euro-Dollar Loan, after
notice has been given to any Bank in accordance with Section 2.4(a), the
Borrower shall reimburse each Bank within 15 days after demand for any resulting
loss or expense incurred by it (or by an existing Participant in the related
Loan; provided that no Participant shall be entitled to receive more than the
Bank with respect to which such Participant is a Participant would be entitled
to receive under this Section 2.13), including (without limitation) any loss
incurred in obtaining, liquidating or employing deposits from third parties, but
excluding loss of margin for the period after any such payment or failure to
borrow, provided that such Bank shall have delivered to the Borrower a
certificate as to the amount of such loss or expense and the calculation
thereof, which certificate shall be conclusive in the absence of manifest error.
59
Section 2.14. Computation of Interest and Fees. Interest
based on the Base Rate hereunder shall be computed on the basis of a year of 365
days (or 366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
Section 2.15. Method of Electing Interest Rates.
(a) The Loans included in each Borrowing shall bear interest
initially at the type of rate specified by the Borrower in the applicable Notice
of Committed Borrowing. Thereafter, the Borrower may from time to time elect to
change or continue the type of interest rate borne by each Group of Loans
(subject in each case to the provisions of Article VIII), as follows:
(i) if such Loans are Base Rate Loans, the Borrower
may elect to convert such Loans to Euro-Dollar Loans as of any
Euro-Dollar Business Day;
(ii) if such Loans are Euro-Dollar Loans, the
Borrower may elect to convert such Loans to Base Rate Loans or elect to
continue such Loans as Euro-Dollar Loans for an additional Interest
Period, in each case effective on the last day of the then cur rent
Interest Period applicable to such Loans.
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Administrative Agent at least three (3) Euro-Dollar
Business Days before the conversion or continuation selected in such notice is
to be effective (unless the relevant Loans are to be continued as Base Rate
Loans, in which case such notice shall be delivered to the Administrative Agent
no later than 12:00 Noon (New York City time) at least one (1) Domestic Business
Day before such continuation is to be effective). A Notice of Interest Rate
Election may, if it so specifies, apply to only a portion of the aggregate
principal amount of the relevant Group of Loans; provided that (i) such portion
is allocated ratably among the Loans comprising such Group of Loans, (ii) the
portion to which
60
such notice applies, and the remaining portion to which it does not apply, are
each $10,000,000 or any larger multiple of $500,000, (iii) there shall be no
more than ten (10) Borrowings comprised of Euro-Dollar Loans outstanding at any
time under this Agreement, (iv) no Loan may be continued as, or converted into,
a Euro-Dollar Loan when any Event of Default has occurred and is continuing, and
(v) no Interest Period shall extend beyond the Maturity Date.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion
thereof) to which such notice applies;
(ii) the date on which the conversion or continuation
selected in such notice is to be effective, which shall comply with
the applicable clause of subsection (a) above;
(iii) if the Loans comprising such Group of Loans are
to be converted, the new type of Loans and, if such new Loans are
Euro-Dollar Loans, the duration of the initial Interest Period
applicable thereto; and
(iv) if such Loans are to be continued as
Euro-Dollar Loans for an additional Interest Period, the duration of
such additional Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from
the Borrower pursuant to subsection (a) above, the Administrative Agent shall
notify each Bank on the same day as it receives such Notice of Interest Rate
Election of the contents thereof and such notice shall not thereafter be
revocable by the Borrower. If the Borrower fails to deliver a timely Notice of
Interest Rate Election to the Administrative Agent for any Group of Loans that
are Euro-Dollar Loans, such Loans shall be converted into Base Rate Loans on the
last day of the then current Interest Period applicable thereto.
Section 2.16. Letters of Credit. (a) Subject to the terms
contained in this Agreement and the other Loan
61
Documents, upon the receipt of a notice in accordance with Section 2.2(c)
requesting the issuance of a Letter of Credit, the Fronting Bank shall issue a
Letter of Credit or Letters of Credit in such form as is reasonably acceptable
to the Borrower in an amount or amounts equal to the amount or amounts requested
by the Borrower.
(b) Each Letter of Credit shall be issued in the minimum
amount of Two Hundred Fifty Thousand Dollars ($250,000).
(c) The Letter of Credit Usage shall be no more than Two
Hundred Million Dollars ($200,000,000) at any one time.
(d) No Letter of Credit shall be issued, if, after giving
effect to the issuance thereof, the sum of the Tranche A Loans, the Letter of
Credit Usage and the Money Market Loans then outstanding would exceed the
aggregate Tranche A Loan Commitments then in effect.
(e) There shall be no more than forty (40) Letters of Credit
outstanding at any one time.
(f) In the event of any request for a drawing under any Letter
of Credit by the beneficiary thereunder, the Fronting Bank shall endeavor to
notify the Borrower and the Administrative Agent (and the Administrative Agent
shall endeavor to notify each Bank thereof) on or before the date on which the
Fronting Bank intends to honor such drawing, and, except as provided in this
subsection (f), the Borrower shall reimburse the Fronting Bank, in immediately
available funds, on the same day on which such drawing is honored in an amount
equal to the amount of such drawing. Notwithstanding anything contained herein
to the contrary, however, unless the Borrower shall have notified the
Administrative Agent, and the Fronting Bank prior to 11:00 a.m. (New York time)
on the Domestic Business Day immediately prior to the date of such drawing that
the Borrower intends to reimburse the Fronting Bank for the amount of such
drawing with funds other than the proceeds of the Loans, the Borrower shall be
deemed to have timely given a Notice of Committed Borrowing pursuant to Section
2.2 to the Administrative Agent, requesting a Borrowing of Tranche A Loans as
Base Rate Loans on the date on which such drawing is honored and in an amount
equal to the amount of such drawing. If the Borrower shall so notify
62
the Administrative Agent and the Fronting Bank that the Borrower intends to
reimburse the Fronting Bank for the amount of such drawing with funds other than
the proceeds of the Loans, and the Borrower shall fail to so reimburse the
Fronting Bank, then the Borrower shall be deemed to have timely given a Notice
of Committed Borrowing pursuant to Section 2.2 to the Administrative Agent,
requesting a Borrowing of Tranche A Loans as Base Rate Loans on the date
immediately succeeding the date on which the Borrower should have reimbursed the
Fronting Bank. Each Tranche A Bank (other than the Fronting Bank) shall, in
accordance with Section 2.4(b), make available its share of such Borrowing to
the Administrative Agent, the proceeds of which shall be applied directly by the
Administrative Agent to reimburse the Fronting Bank for the amount of such draw.
In the event that any such Tranche A Bank fails to make available to the
Fronting Bank the amount of such Bank's participation on the date of a drawing,
the Fronting Bank shall be entitled to recover such amount on demand from such
Tranche A Bank together with interest at the Federal Funds Rate commencing on
the date such drawing is honored.
(g) If, after the date hereof, any change in any law or
regulation or in the interpretation thereof by any court or administrative or
governmental authority charged with the administration thereof shall either (i)
impose, modify or deem applicable any reserve, special deposit or similar
requirement against letters of credit issued by, or assets held by, or deposits
in or for the account of, or participations in any letter of credit, upon any
Bank (including the Fronting Bank) or (ii) impose on any Bank any other
condition regarding this Agreement or such Bank (including the Fronting Bank) as
it pertains to the Letters of Credit or any participation therein and the result
of any event referred to in the preceding clause (i) or (ii) shall be to
increase, by an amount reasonably deemed by the Fronting Bank or such Bank to be
material, the cost to the Fronting Bank or any Bank of issuing or maintaining
any Letter of Credit or participating therein then the Borrower shall pay to the
Fronting Bank or such Bank, within 15 days after written demand by such Bank
(with a copy to the Administrative Agent), which demand shall be accompanied by
a certificate showing, in reasonable detail, the calculation of such amount or
amounts, such additional amounts as shall be required to compensate the Fronting
Bank or such Bank for such increased costs or reduction in amounts received or
receivable hereunder. The certificate required
63
to be delivered pursuant to this Section 2.16(g) shall, absent manifest error,
be final and conclusive and binding on the Borrower.
(h) The Borrower hereby agrees to protect, indemnify, pay and
save the Fronting Bank harmless from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
attorneys' fees and disbursements) which the Fronting Bank may incur or be
subject to as a result of (i) the issuance of the Letters of Credit, other than
as a result of the gross negligence or wilful misconduct of the Fronting Bank or
(ii) the failure of the Fronting Bank to honor a drawing under any Letter of
Credit as a result of any act or omission, whether rightful or wrongful, of any
present or future de jure or de facto government or Governmental Authority
(collectively, "Governmental Acts"), other than as a result of the gross
negligence or wilful misconduct of the Fronting Bank. As between the Borrower
and the Fronting Bank, the Borrower assumes all risks of the acts and omissions
of, or misuses of, the Letters of Credit issued by the Fronting Bank, by the
beneficiaries of such Letters of Credit. In furtherance and not in limitation of
the foregoing, the Fronting Bank shall not be responsible (i) for the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
such Letters of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) for the
validity or insufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such 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) for failure of the beneficiary
of any such Letter of Credit to comply fully with conditions required in order
to draw upon such Letter of Credit; (iv) for errors, omissions, interruptions or
delays in transmission or delivery of any message, by mail, cable, telegraph,
telex, facsimile transmission, or otherwise; (v) for errors in interpretation of
any technical terms; (vi) for any loss or delay in the transmission or otherwise
of any documents required in order to make a drawing under any such Letter of
Credit or of the proceeds thereof; (vii) for the misapplication by the
beneficiary of any such Letter of Credit of the proceeds of such Letter of
Credit; and (viii)
64
for any consequence arising from causes beyond the control of the Fronting Bank,
including any Government Acts, in each case other than as a result of the gross
negligence or willful misconduct of the Fronting Bank. None of the above shall
affect, impair or prevent the vesting of the Fronting Bank's rights and powers
hereunder. In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by the Fronting
Bank under or in connection with the Letters of Credit issued by it or the
related certificates, if taken or omitted in good faith, shall not put the
Fronting Bank under any resulting liability to the Borrower.
(i) If the Fronting Bank or the Administrative Agent is
required at any time, pursuant to any bankruptcy, insolvency, liquidation or
reorganization law or otherwise, to return to the Borrower any reimbursement by
the Borrower of any drawing under any Letter of Credit, each Bank shall pay to
the Fronting Bank or the Administrative Agent, as the case may be, its share of
such payment, but without interest thereon unless the Fronting Bank or the
Administrative Agent is required to pay interest on such amounts to the person
recovering such payment, in which case with interest thereon, computed at the
same rate, and on the same basis, as the interest that the Fronting Bank or the
Administrative Agent is required to pay.
Section 2.17. Letter of Credit Usage Absolute. The
obligations of the Borrower under this Agreement in respect of any Letter of
Credit shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement (as the same may be amended from
time to time) and any Letter of Credit Documents (as hereinafter defined) under
all circumstances, including, without limitation, to the extent permitted by
law, the following circumstances:
(a) any lack of validity or enforceability of any Letter of
Credit or any other agreement or instrument relating thereto (collectively, the
"Letter of Credit Documents") or any Loan Document;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the obligations of the Borrower in respect
of the Letters of Credit or any other amendment or waiver of or any consent by
the Borrower to departure from all or any of the Letter
65
of Credit Documents or any Loan Document; provided, that the Fronting Bank shall
not consent to any such change or amendment unless previously consented to in
writing by the Borrower;
(c) any exchange, release or non-perfection of any collateral,
or any release or amendment or waiver of or consent to departure from any
guaranty, for all or any of the obligations of the Borrower in respect of the
Letters of Credit;
(d) the existence of any claim, set-off, defense or other
right that the Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for whom any such beneficiary
or any such transferee may be acting), the Administrative Agent, the Fronting
Bank or any Bank (other than a defense based on the gross negligence or wilful
misconduct of the Administrative Agent, the Fronting Bank or such Bank) or any
other Person, whether in connection with the Loan Documents, the transactions
contemplated hereby or by the Letters of Credit Documents or any unrelated
transaction;
(e) any draft or any other document presented under or in
connection with any Letter of Credit or other Loan Document proving to be
forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; provided, that payment by the
Fronting Bank under such Letter of Credit against presentation of such draft or
document shall not have constituted gross negligence or wilful misconduct of the
Fronting Bank;
(f) payment by the Fronting Bank against presentation of a
draft or certificate that does not comply with the terms of the Letter of
Credit; provided, that such payment shall not have constituted gross negligence
or wilful misconduct of the Fronting Bank; and
(g) any other circumstance or happening whatsoever other than
the payment in full of all obligations hereunder in respect of any Letter of
Credit or any agreement or instrument relating to any Letter of Credit, whether
or not similar to any of the foregoing, that might otherwise constitute a
defense available to, or a discharge of, the Borrower; provided, that such other
circumstance or happening shall not have been the result of gross negligence or
wilful misconduct of the Fronting Bank.
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ARTICLE III
CONDITIONS
Section 3.1. Closing. The closing hereunder shall occur on
the date (the "Closing Date") when each of the following conditions is satisfied
(or waived by the Administrative Agent, such waiver to be evidenced by the
continuation or funding after the date hereof of Loans and notice of such waiver
to be given to the Banks by the Administrative Agent), each document to be dated
the Closing Date unless otherwise indicated:
(a) the Borrower shall have executed and delivered to the
Administrative Agent a Tranche A Note, a Tranche B Note, a Tranche C Note and a
Tranche D Note for the account of each Bank dated on or before the Closing Date
complying with the provisions of Section 2.5;
(b) the Borrower shall have executed and delivered to the
Administrative Agent a duly executed original of this Agreement;
(c) MOC shall have executed and delivered to the
Administrative Agent a duly executed original of the Guaranty;
(d) the Administrative Agent shall have received an opinion of
Xxxxxx, XxXxxxxxx & Fish, LLP and Cravath, Swaine & Xxxxx, counsel for the
Borrower and MOC, accept able to the Administrative Agent, the Banks and their
counsel;
(e) the Administrative Agent shall have received all documents
the Administrative Agent may reasonably request relating to the existence of the
Borrower, MOC, the authority for and the validity of this Agreement and the
other Loan Documents, and any other matters relevant hereto, all in form and
substance reasonably satisfactory to the Administrative Agent. Such
documentation shall include, without limitation, the certificate of
incorporation and by-laws of the Borrower and MOC, as amended, modified or
supplemented to the Closing Date, each certi-
67
fied to be true, correct and complete by an officer of the Borrower or MOC as of
a date not more than forty-five (45) days prior to the Closing Date, together
with a good standing certificate from the Secretary of State (or the equivalent
thereof) of the State of Delaware with respect to the Borrower and of the State
of Delaware with respect to MOC, and a good standing certificate from the
Secretary of State (or the equivalent thereof) of each other State in which the
Borrower and MOC is required to be qualified to trans act business unless the
failure to qualify would not have a Material Adverse Effect, each to be dated
not more than forty-five (45) days prior to the Closing Date;
(f) the Administrative Agent shall have received all
certificates, agreements and other documents and papers referred to in this
Section 3.1 and Section 3.2, unless otherwise specified, in sufficient
counterparts, satisfactory in form and substance to the Administrative Agent in
its sole discretion;
(g) the Borrower and MOC shall have taken all actions required
to authorize the execution and delivery of this Agreement and the other Loan
Documents and the performance thereof by the Borrower and MOC;
(h) the Administrative Agent and each Bank shall have received
an unaudited combined consolidated balance sheet and income statement of the
Borrower for the fiscal quarter ended March 31, 1998;
(i) the Administrative Agent shall be satisfied that neither
the Borrower nor MOC is subject to any present or contingent environmental
liability which could reason ably be expected to have a Material Adverse Effect;
(j) the Administrative Agent shall have received wire transfer
instructions in connection with the Loans to be made on the Closing Date;
(k) the Administrative Agent shall have received, for its and
any other Bank's account, all fees due and payable pursuant to Section 2.8
hereof on or before the Closing Date, and the reasonable fees and expenses
accrued through the Closing Date of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
and the Fronting Banks under the Existing Letters of Credit shall have received
all fees thereunder accrued through the Closing Date;
68
(l) the Administrative Agent shall have received copies of all
consents, licenses and approvals, if any, required in connection with the
execution, delivery and performance by the Borrower, and the validity and
enforceability against the Borrower, of the Loan Documents, or in connection
with any of the transactions contemplated thereby to occur on or prior to the
Closing Date, and such consents, licenses and approvals shall be in full force
and effect;
(m) the representations and warranties of the Borrower
contained in this Agreement shall be true and correct in all material respects
on and as of the Closing Date both before and after giving effect to the making
of any Loans;
(n) receipt by the Administrative Agent and the Banks of a
certificate of an officer of the Borrower certifying that the Borrower is in
compliance with all covenants of the Borrower contained in this Agreement,
including, without limitation, the requirements of Section 5.8, as of the
Closing Date;
(o) the Borrower shall intend to continue to qualify as a real
estate investment trust under the Internal Revenue Code;
(p) the Existing Credit Agreements shall have been terminated
and all amounts outstanding thereunder repaid in full; and
(q) the Borrower shall have completed its acquisition of
La Quinta Inns, Inc. and shall not have waived any material condition to the
closing thereof.
The Administrative Agent shall promptly notify the Borrower and the Banks of the
Closing Date, and such notice shall be conclusive and binding on all parties
hereto.
Section 3.2. Borrowings. The obligation of any Bank to make
a Loan on the occasion of any Borrowing or to participate in any Letter of
Credit issued by the Fronting Bank and the obligation of the Fronting Bank to
issue a Letter of Credit on the occasion of any Borrowing is subject to the
satisfaction of the following conditions:
69
(a) the Closing Date shall have occurred on or prior to July
31, 1998;
(b) receipt by the Administrative Agent of a Notice of
Borrowing as required by Section 2.2 or 2.3;
(c) immediately after such Borrowing, the Out standing Balance
will not exceed the aggregate amount of the Commitments and with respect to each
Bank, such Bank's pro rata portion of the Committed Loans and Letter of Credit
Usage will not exceed such Bank's Commitment;
(d) immediately before and after such Borrowing, no monetary
Default or any Event of Default shall have occurred and be continuing both
before and after giving effect to the making of such Loans;
(e) the representations and warranties of the Borrower
contained in this Agreement (other than representations and warranties which
speak as of a specific date) shall be true and correct in all material respects
on and as of the date of such Borrowing both before and after giving effect to
the making of such Loans;
(f) no law or regulation shall have been adopted, no order,
judgment or decree of any Governmental Authority shall have been issued, and no
litigation shall be pending or threatened, which does or, with respect to any
threatened litigation, seeks to enjoin, prohibit or restrain, the making or
repayment of the Loans, the issuance of any Letter of Credit or any
participations therein or the consummation of the transactions contemplated
hereby; and
(g) no event, act or condition shall have occurred after the
Closing Date which, in the reasonable judgment of the Administrative Agent or
the Required Banks holding Tranche A Loans, as the case may be, has had or is
likely to have a Material Adverse Effect.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the facts specified in clauses
(c) through (g) of this Section (except that with respect to clause (f), such
representation and warranty shall be deemed to be limited to laws, regulations,
orders, judgments, decrees
70
and litigation affecting the Borrower and not solely the Banks).
Section 3.3. Security Conversion. (a) If as of the last day
of any fiscal quarter from and after April 30, 1999, the Total Debt Ratio shall
be greater than 57.5% (any such date being the "Conversion Date"), the Borrower
shall promptly deliver (the "Security Conversion") to the Administrative Agent,
mortgages and/or deeds of trust (collectively, the "Mortgages"), together with
assignments of leases and rents; UCC-1 financing statements; pledges of stock,
partnership, membership or other equity interests in Subsidiaries and Minority
Holdings (with respect to whose assets the Borrower is unable to deliver
Mortgages); pledges of Healthcare Mortgages and other mortgage loans and loans,
and any other documents that the Administrative Agent may reasonably require,
and take such steps as the Administrative Agent may reasonably require in order
to perfect its security interest in the applicable asset, in recordable form
where applicable and all in form and substance reasonably acceptable to the
Administrative Agent (collectively, the "Security Documents"), executed by the
Borrower or the applicable Consolidated Subsidiary. The Mortgages shall create,
and upon recording shall perfect, a first priority Lien on each of the
Unencumbered Asset Pool Properties, as well as a second priority Lien on each
other Real Property Asset of the Borrower and its Consolidated Subsidiaries, to
the extent permitted by any existing first mortgage Liens thereon, it being
recognized that any such Security Documents shall secure, on a pari passu equal
and ratable basis, all Unsecured Debt of the Borrower. The Mortgages shall
secure the Notes, except that in those states where a tax is imposed on the
recording of a mortgage, the Mortgages shall be limited to an amount equal to
100% of the fair market value of the applicable Real Property Asset. Failure by
the Borrower to promptly deliver all Security Documents together with all other
items required pursuant to this Section 3.3 or to pay any amounts required to be
paid in connection therewith shall be an Event of Default.
(b) In the event the Security Conversion occurs and the
Borrower delivers the Security Documents, the Administrative Agent shall cause
all of the Security Documents to be recorded and/or filed in the appropriate
offices, as security for the Loans, at the Borrower's sole cost and expense. The
Borrower also shall cause to be
71
delivered to the Administrative Agent, at the Borrower's sole cost and expense,
title reports (but not title policies) with respect to each Real Property
Asset. The Borrower will cause the applicable Consolidated Subsidiaries to
execute such further instruments and documents and perform such further acts as
the Administrative Agent shall reasonably request to carry out the creation and
perfection of the liens and security interests contemplated by the Security
Documents. In the event that the Borrower does not pay in full any recording or
other fees or taxes in connection with the Security Conversion, the
Administrative Agent may proceed to pay the same on behalf of the Borrower, and
the Borrower's failure to reimburse the same within five (5) Domestic Business
Days after demand, together with interest thereon at the rate specified in
Section 2.7(d), shall constitute an Event of Default.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and each of the
other Banks which may become a party to this Agreement to make the Loans, the
Borrower makes the following representations and warranties as of the date
hereof. Such representations and warranties shall survive the effectiveness of
this Agreement, the execution and delivery of the other Loan Documents and the
making of the Loans.
Section 4.1. Existence and Power. The Borrower is duly
organized, validly existing and in good standing as a corporation under the laws
of the State of Delaware and has all powers and all material governmental
licenses, authorizations, consents and approvals required to own its property
and assets and carry on its business as now conducted or as it presently
proposes to conduct and has been duly qualified and is in good standing in every
jurisdiction in which the failure to be so qualified and/or in good standing is
likely to have a Material Adverse Effect.
Section 4.2. Power and Authority. The Borrower has the
corporate power and authority to execute, deliver and carry out the terms and
provisions of each of the Loan Documents to which it is a party and has taken
all necessary action to authorize the execution and delivery on behalf of the
Borrower and the performance by the Borrower
72
of such Loan Documents. The Borrower has duly executed and delivered each Loan
Document to which it is a party, and each such Loan Document constitutes the
legal, valid and binding obligation of the Borrower, enforceable in accordance
with its terms, except as enforceability may be limited by applicable
insolvency, bankruptcy or other laws affecting creditors rights generally, or
general principles of equity, whether such enforceability is considered in a
proceeding in equity or at law.
Section 4.3. No Violation. Neither the execution, delivery
or performance by or on behalf of the Borrower of the Loan Documents, nor
compliance by the Borrower with the terms and provisions thereof nor the
consummation of the transactions contemplated by the Loan Documents, (i) will
contravene any applicable provision of any law, statute, rule, regulation,
order, writ, injunction or decree of any court or governmental instrumentality
applicable to the Borrower or (ii) will conflict with or result in any breach
of, any of the terms, covenants, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of (or the obligation to
create or impose) any Lien upon any of the property or assets of the Borrower
pursuant to the terms of any material indenture, mortgage, deed of trust, or
other agreement or other instrument to which the Borrower (or of any
partnership of which the Borrower is a partner) is a party or by which it or any
of its property or assets is bound or to which it is subject or (iii) will cause
a default by the Borrower under any organizational document of any Subsidiary,
or cause a default under MOC's certificate of incorporation or by-laws, and
which, in any case set forth in clauses (i), (ii) or (iii), could result in a
Material Adverse Effect.
Section 4.4. Financial Information.
(a) The unaudited combined consolidated balance sheets of the
Borrower and MOC as of March 31, 1998, delivered to the Administrative Agent
fairly presents, in conformity with GAAP, the combined consolidated financial
position of the Borrower and MOC as of such date and their combined consolidated
results of operations for such fiscal period.
(b) Since March 31, 1998, (i) there has been no material
adverse change in the business, financial position or results of operations of
the Borrower or MOC and (ii)
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except as previously disclosed to the Administrative Agent, neither the Borrower
nor MOC has incurred any material indebtedness or guaranty.
Section 4.5. Litigation.
(a) There is no action, suit or proceeding pending against, or
to the knowledge of the Borrower, threatened against or affecting, (i) the
Borrower, MOC or any of their Subsidiaries, (ii) the Loan Documents or any of
the transactions contemplated by the Loan Documents or (iii) any of their
assets, in any case before any court or arbitrator or any governmental body,
agency or official, which in any case set forth in clauses (i) or (ii) could
reasonably be expected to have a Material Adverse Effect or which in any manner
draws into question the validity of this Agreement or the other Loan Documents.
(b) There are no final nonappealable judgments or decrees in
an aggregate amount of Ten Million Dollars ($10,000,000) or more entered by a
court or courts of competent jurisdiction against the Borrower or MOC (other
than any judgment as to which, and only to the extent, a reputable insurance
company has acknowledged coverage of such claim in writing).
Section 4.6. Compliance with ERISA.
(a) Except as previously disclosed to the Administrative
Agent and the Banks in writing, each member of the ERISA Group has fulfilled its
obligations under the minimum funding standards of ERISA and the Internal
Revenue Code with respect to each Plan maintained and/or contributed to by such
member, and is in compliance in all material respects with the presently
applicable provisions of ERISA and the Internal Revenue Code with respect to
each Plan. No member of the ERISA Group has at any time during the three-year
period prior to the date of this Agreement (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 if and as required by the terms of such Plan or in respect of
any Benefit Arrangement if and as required by the terms of such Benefit
Arrangement, (iii) adopted any amendment to any Plan or Benefit Arrangement,
which has resulted or is likely to result in the imposition of a Lien or the
posting of a bond or other security under ERISA or the Internal Revenue Code or
(iv)
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incurred any liability under Title IV of ERISA other than a liability to the
PBGC for premiums under Section 4007 of ERISA.
(b) Except for each "employee benefit plan" (as such term is
defined in Section 3(3) of ERISA) that is maintained, or contributed to, by one
or more members of the ERISA Group, no member of the ERISA Group is a "party in
interest" (as such term is defined in Section 3(14) of ERISA or a "disqualified
person" (as such term is defined in Section 4975(e)(2) of the Internal Revenue
Code) with respect to any funded employee benefit plan and none of the assets of
any such plans have been invested in a manner that would cause the transactions
contemplated by the Loan Documents to constitute a "prohibited transaction" (as
such term is defined in Section 4975(a)(2) of the Internal Revenue Code or
Section 406 of ERISA) unless such transaction is subject to an exemption
established by or in accordance with Section 4975 of the Internal Revenue Code
and/or Section 408 of ERISA and/or regulations promulgated there under.
Section 4.7. Environmental Compliance. To the best of the
Borrower's knowledge, except as set forth in the Phase I environmental report(s)
made available to the Administrative Agent with respect to each of the
Unencumbered Asset Pool Properties (as supplemented or amended, the
"Environmental Reports"), (i) there are in effect all Environmental Approvals
which are required to be obtained under all Environmental Laws with respect to
the Real Property Assets, except for such Environmental Approvals the absence of
which would not have a Material Adverse Effect, (ii) the Borrower is in
compliance in all material respects with the terms and conditions of all such
Environmental Approvals, and is also in compliance in all material respects
with all other Environmental Laws or any plan, order, decree, judgment,
injunction, notice or demand letter issued, entered or approved thereunder,
except to the extent failure to comply would not have a Material Adverse Effect.
Except as set forth in the Environmental Reports or otherwise
disclosed to the Administrative Agent and the Banks in writing as of the Closing
Date, to the Borrower's actual knowledge:
(i) There are no Environmental Claims or
investigations pending or threatened by any Governmen-
75
tal Authority with respect to any alleged failure by the Borrower to
have any Environmental Approval required in connection with the
conduct of the business of the Borrower on any of the Unencumbered
Asset Pool Properties, or with respect to any generation, treatment,
storage, recycling, transportation, Release or disposal of any Material
of Environmental Concern generated by the Borrower or any lessee on any
of the Unencumbered Asset Pool Properties that may reasonably be
expected to have a Material Adverse Effect;
(ii) No Material of Environmental Concern has been
Released at the Unencumbered Asset Pool Property to an extent that it
may reasonably be expected to have a Material Adverse Effect;
(iii) No PCB (in amounts or concentrations which
exceed those set by applicable Environmental Laws) is present at any of
the Unencumbered Asset Pool Properties;
(iv) No friable asbestos is present at any of the
Unencumbered Asset Pool Properties which may reasonably be expected to
have a Material Adverse Effect;
(v) There are no underground storage tanks for
Material of Environmental Concern, active or abandoned, at any of the
Unencumbered Asset Pool Proper ties which may reasonably be expected to
have a Material Adverse Effect;
(vi) No Environmental Claims have been filed with a
Governmental Authority with respect to any of the Unencumbered Asset
Pool Properties, and none of the Unencumbered Asset Pool Properties is
listed or proposed for listing on the National Priority List
promulgated pursuant to CERCLA, on CERCLIS or on any similar state list
of sites requiring investigation or clean-up which may reasonably be
expected to have a Material Adverse Effect;
(vii) There are no Liens arising under or pursuant to
any Environmental Laws on any of the Unencumbered Asset Pool
Properties, and no government
76
actions have been taken or are in process which could subject any of
the Unencumbered Asset Pool Properties to such Liens; and
(viii) There have been no environmental
investigations, studies, audits, tests, reviews or other analyses
conducted by, or which are in the possession of, the Borrower in
relation to any of the Unencumbered Asset Pool Properties which have
not been made available to the Administrative Agent.
Section 4.8. Taxes. The initial tax year of the Borrower for
federal income tax purposes was 1980. The federal income tax returns of the
Borrower and its Consolidated Subsidiaries for the fiscal year ended December
31, 1996 have been filed. The Borrower and its Subsidiaries have filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Borrower or any
Subsidiary except those being contested in good faith. The charges, accruals and
reserves on the books of the Borrower and its Subsidiaries in respect of taxes
or other governmental charges are, in the opinion of the Borrower, adequate.
Section 4.9. Full Disclosure. All information heretofore
furnished by the Borrower to the Administrative Agent or any Bank for purposes
of or in connection with this Agreement or any transaction contemplated hereby
is true and accurate in all material respects on the date as of which such
information is stated or certified. The Borrower has disclosed to the Banks in
writing any and all facts known to the Borrower which materially and adversely
affect or are likely to materially and adversely affect (to the extent the
Borrower can now reasonably foresee), the business, operations or financial
condition of the Borrower considered as one enterprise or the ability of the
Borrower to perform its obligations under this Agreement or the other Loan
Documents.
Section 4.10. Solvency. On the Closing Date and after giving
effect to the transactions contemplated by the Loan Documents occurring on the
Closing Date, the Borrower is Solvent.
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Section 4.11. Use of Proceeds; Margin Regulations. All
proceeds of the Loans will be used by the Borrower only in accordance with the
provisions hereof. No part of the proceeds of any Loan will be used by the
Borrower to purchase or carry any Margin Stock or to extend credit to others for
the purpose of purchasing or carrying any Margin Stock. Neither the making of
any Loan nor the use of the proceeds thereof will violate or be inconsistent
with the provisions of Regulations T, U or X of the Federal Reserve Board.
Section 4.12. Governmental Approvals. No order, consent,
approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, any governmental or public body or
authority, or any subdivision thereof, is required to authorize, or is required
in connection with the execution, delivery and performance of any Loan Document
or the consummation of any of the transactions contemplated thereby other than
those that have already been duly made or obtained and remain in full force and
effect.
Section 4.13. Investment Company Act; Public Utility Holding
Company Act. The Borrower is not (x) an "investment company" or a company
"controlled" by an "in vestment company", within the meaning of the Investment
Company Act of 1940, as amended, (y) a "holding company" or a "subsidiary
company" of a "holding company" or an "affiliate" of either a "holding company"
or a "subsidiary company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended, or (z) subject to any other federal or state
law or regulation which purports to restrict or regulate its ability to borrow
money.
Section 4.14. Closing Date Transactions. On the Closing Date
and immediately prior to or concurrently with the making of the Loans, the
transactions (other than the making of the Loans) intended to be consummated on
the Closing Date will have been consummated in accordance with all applicable
laws. On or prior to the Closing Date, all consents and approvals of, and
filings and registrations with, and all other actions by, any Person required in
order to make or consummate such transactions have been
78
obtained, given, filed or taken and are in full force and effect.
Section 4.15. Representations and Warranties in Loan
Documents. All representations and warranties made by the Borrower in the Loan
Documents are true and correct in all material respects.
Section 4.16. Patents, Trademarks, etc. The Borrower has
obtained and holds in full force and effect all patents, trademarks, service
marks, trade names, copy rights and other such rights, free from burdensome
restrictions, which are necessary for the operation of its business as
presently conducted, the impairment of which is likely to have a Material
Adverse Effect. To the Borrower's knowledge, no material product, process,
method, substance, part or other material presently sold by or employed by the
Borrower in connection with such business infringes any patent, trademark,
service xxxx, trade name, copyright, license or other such right owned by any
other Person. There is not pending or, to the Borrower's knowledge, threatened
any claim or litigation against or affecting the Borrower contesting its right
to sell or use any such product, process, method, substance, part or other
material.
Section 4.17. No Default. No Default or Event of Default
exists under or with respect to any Loan Document. The Borrower is not in
default in any material respect beyond any applicable grace period under or with
respect to any other material agreement, instrument or undertaking to which it
is a party or by which it or any of its property is bound in any respect, the
existence of which default is likely (to the extent that the Borrower can now
reasonably foresee) to result in a Material Adverse Effect.
Section 4.18. Licenses, etc. The Borrower has obtained and
holds in full force and effect, all franchises, licenses, permits,
certificates, authorizations, qualifications, accreditations, easements, rights
of way and other consents and approvals which are necessary for the operation of
its businesses as presently conducted, the absence of which is likely (to the
extent that the Borrower can now reasonably foresee) to have a Material Adverse
Effect.
79
Section 4.19. Compliance With Law. The Borrower is in
compliance with all laws, rules, regulations, orders, judgments, writs and
decrees, including, without limitation, all building and zoning ordinances and
codes, the failure to comply with which is likely (to the extent that the
Borrower can now reasonably foresee) to have a Material Adverse Effect.
Section 4.20. No Burdensome Restrictions. The Borrower is not
a party to any agreement or instrument or subject to any other obligation or any
charter or corporate or partnership restriction, as the case may be, which,
individually or in the aggregate, is likely (to the extent that the Borrower can
now reasonably foresee) to have a Material Adverse Effect.
Section 4.21. Brokers' Fees. The Borrower has not dealt with
any broker or finder with respect to the transactions contemplated by the Loan
Documents or other wise in connection with this Agreement, and the Borrower has
not done any acts, had any negotiations or conversation, or made any agreements
or promises which will in any way create or give rise to any obligation or
liability for the payment by the Borrower of any brokerage fee, charge,
commission or other compensation to any party with respect to the transactions
contemplated by the Loan Documents, other than the fees payable hereunder.
Section 4.22. Labor Matters. Except as set forth on Schedule
4.22 attached hereto and made a part hereof, there are no collective bargaining
agreements or Multiemployer Plans covering the employees of the Borrower and the
Borrower has not suffered any strikes, walkouts, work stoppages or other
material labor difficulty within the last five (5) years.
Section 4.23. Organizational Documents. The documents
delivered pursuant to Section 3.1(e) constitute, as of the Closing Date, all of
the organizational documents (together with all amendments and modifications
thereof) of the Borrower. The Borrower represents that it has delivered to the
Administrative Agent true, correct and complete copies of each of the documents
set forth in this Section 4.23.
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Section 4.24. Principal Offices. The principal office, chief
executive office and principal place of business of the Borrower is 000 Xxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000.
Section 4.25. REIT Status. For the fiscal year ended December
31, 1997, the Borrower qualified, for the current fiscal year, the Borrower is
in a position to qualify as, and the Borrower intends to continue to qualify
as, a real estate investment trust under the Internal
Revenue Code.
Section 4.26. Ownership of Property. The Borrower owns,
directly or indirectly, the Healthcare Mortgages and fee simple title to, or a
ground leasehold interest in, each of the other Unencumbered Asset Pool Proper
ties.
Section 4.27. Year 2000 Compliance. The Borrower will
conduct a comprehensive review and assessment of the Borrower's and its
Subsidiaries' computer applications and will commence inquiry of the Borrower's
key suppliers, vendors and customers with respect to the "year 2000 problem"
(that is, the risk that computer applications may not be able to properly
perform date sensitive functions after December 31, 1999). The Borrower does not
believe the year 2000 problem will result in an inability on the Borrower's part
to repay the Loans or a Material Adverse Effect.
Section 4.28. Insurance. The Borrower currently maintains or
requires its operators/lessees to maintain insurance at 100% replacement cost
insurance coverage in respect of each of the Real Property Assets, as well as
comprehensive general liability insurance (including "builders' risk") against
claims for personal, and bodily injury and/or death, to one or more persons, or
property damage, as well as workers' compensation insurance, in each case with
respect to the Real Property Assets in amounts that prudent owner of assets such
as the Real Property Assets would maintain.
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ARTICLE V
AFFIRMATIVE AND NEGATIVE COVENANTS
The Borrower covenants and agrees that, so long as any Bank
has any Commitment hereunder or any Obligations remain unpaid:
Section 5.1. Information. The Borrower will deliver, and will
cause MOC to deliver, to the Administrative Agent and to each of the Banks:
(a) as soon as available and in any event within 105 days
after the end of each fiscal year of the Borrower or MOC, an audited combined
consolidated balance sheet of the Borrower or MOC, as the case may be, as of the
end of such fiscal year and the related combined consolidated statements of cash
flow and operations for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, audited by
PricewaterhouseCoopers, LLP or other independent public accountants of similar
standing;
(b) as soon as available and in any event within sixty (60)
days after the end of each quarter of each fiscal year (other than the last
quarter in any fiscal year) of the Borrower or MOC, a statement of the Borrower
or MOC, as the case may be, prepared in accordance with GAAP, setting forth the
operating income and operating expenses of the Borrower or MOC, in sufficient
detail so as to calculate Unencumbered Asset Pool Net Operating Cash Flow of the
Borrower and MOC for the immediately preceding quarter;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of an officer
of the Borrower (and MOC in the case of clause (iii)), (i) setting forth in
reason able detail the calculations required to establish whether the Borrower
was in compliance with the requirements of Section 5.8 on the date of such
financial statements;( ii) stating whether any Default exists on the date of
such certificate and, if any Default then exists, setting forth the details
thereof and the action which the Borrower is taking or proposes to take with
respect thereto; and (iii) certifying (x) that such financial statements fairly
present the financial condition and the results of operations of the Borrower
or MOC as of the dates and for the periods
82
indicated, in accordance with GAAP, subject, in the case of interim financial
statements, to normal year-end adjustments, and (y) that such officer has
reviewed the terms of the Loan Documents and has made, or caused to be made
under his or her supervision, a review in reasonable detail of the business and
condition of the Borrower during the period beginning on the date through which
the last such review was made pursuant to this Section 5.1(c) and ending on a
date not more than ten (10) Domestic Business Days prior to the date of such
delivery and that on the basis of such review of the Loan Documents and the
business and condition of the Borrower, to the best knowledge of such officer,
no Default or Event of Default under any other provision of Section 6.1 occurred
or, if any such Default or Event of Default has occurred, specifying the nature
and extent thereof and, if continuing, the action the Borrower proposes to take
in respect thereof;
(d) Intentionally Omitted.
(e) (i) within five (5) days after the president, chief
financial officer, treasurer, controller or other executive officer of the
Borrower obtains knowledge of any Default, if such Default is then continuing, a
certificate of an officer of the Borrower setting forth the details thereof and
the action which the Borrower is taking or proposes to take with respect
thereto; (ii) promptly and in any event within ten (10) days after the Borrower
obtains knowledge thereof, notice of (x) any litigation or governmental
proceeding pending or threatened against the Borrower which is likely to
individually or in the aggregate, result in a Material Adverse Effect, and (y)
any other event, act or condition which is likely to result in a Material
Adverse Effect;
(f) 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 is likely to constitute
grounds for a termination of such Plan under Title IV of ERISA, or knows that
the plan administrator of any Plan maintained or contributed to by such member
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 under
83
Section 4219(b)(1) of complete or partial withdrawal liability under Title IV of
ERISA or notice under Sections 4041A, 4242 or 4245 that any Multiemployer Plan
is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives written 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 to the Internal Revenue Service for a waiver
of the minimum funding standard under Section 412 of the Internal Revenue Code,
a copy of such application; (v) gives written notice to the PBGC of intent to
terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and
other information filed in concert with such notice with the PBGC; (vi) gives
written notice to the PBGC of withdrawal from any Plan pursuant to Section 4063
of ERISA, a copy of such notice; or (vii) fails to make any payment or
contribution to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement or adopts any written amendment to any Plan or Benefit Arrangement
which has resulted or is likely to result in the imposition of a Lien or the
posting of a bond or other security under ERISA or the Internal Revenue Code, a
certificate of the chief financial officer or the chief accounting officer of
the Borrower setting forth details as to such occurrence and action, if any,
which the Borrower or applicable member of the ERISA Group is required or
proposes to take;
(g) promptly and in any event within ten (10) Domestic
Business Days after the Borrower obtains actual knowledge of any of the
following events, a certificate of the Borrower executed by an officer of the
Borrower specifying the nature of such event and the Borrower's, and if the
Borrower has actual knowledge thereof, the Environmental Affiliate's, proposed
initial response thereto: (i) the receipt by the Borrower, or, if the Borrower
has actual knowledge thereof, any of the Environmental Affiliates, of any
communication (written or oral), whether from a Govern mental Authority,
citizens group, employee or otherwise, that alleges that the Borrower, or any of
the Environmental Affiliates, is not in compliance with applicable Environmental
Laws, and such noncompliance is likely to have a Material Adverse Effect, (ii)
the Borrower shall obtain actual knowledge that there exists any Environmental
Claim
84
which is likely to have a Material Adverse Effect pending or threatened against
the Borrower or any Environmental Affiliate or (iii) the Borrower obtains actual
knowledge of any Release, emission, discharge or disposal of any Material of
Environmental Concern that is likely to form the basis of any Environmental
Claim against the Borrower or any Environmental Affiliate that could have a
Material Adverse Effect;
(h) promptly and in any event within five (5) Domestic
Business Days after receipt of any material notices or correspondence from any
company or agent for any
company providing insurance coverage to the Borrower or MOC relating to any
material loss or loss of the Borrower or MOC with respect to any of the
Unencumbered Asset Pool Properties, copies of such notices and correspondence;
(i) promptly upon the mailing thereof to the shareholders or
partners of the Borrower or MOC, copies of all financial statements, reports
and proxy statement so mailed;
(j) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and
8-K (or their equivalents) which the Borrower or MOC shall have filed with the
Securities and Exchange Commission;
(k) simultaneously with delivery of the information required
by Sections 5.1(a) and (b), a statement of Unencumbered Asset Pool Net Operating
Cash Flow with respect to each Unencumbered Asset Pool Property and a list
of all Unencumbered Asset Pool Properties; and
(l) from time to time such additional information regarding
the financial position or business of the Borrower or MOC as the Administrative
Agent, at the request of any Bank, may reasonably request.
Section 5.2. Payment of Obligations. The Borrower will pay
and discharge, at or before maturity, all its material obligations and
liabilities including, without limitation, any obligation pursuant to any
agreement by which it or any of its properties is bound and any tax
85
liabilities, in any case, where failure to do so will likely result in a
Material Adverse Effect except (i) such tax liabilities as may be contested in
good faith by appropriate proceedings, and the Borrower will maintain in
accordance with GAAP, appropriate reserves for the accrual of any of the same;
or (ii) such obligation or liability as may be contested in good faith by
appropriate proceedings.
Section 5.3. Maintenance of Property; Insurance.
(a) The Borrower will keep, or require its operators and/or
lessees to keep, each of the Unencumbered Asset Pool Properties in good repair,
working order and condition, subject to ordinary wear and tear.
(b) The Borrower shall, or shall cause its operators and/or
lessees to, (a) maintain insurance as specified in Section 4.28 hereof with
insurers meeting the qualifications described therein, which insurance shall in
any event not provide for materially less coverage than the insurance in effect
on the Closing Date, and (b) furnish to the Administrative Agent from time to
time, upon written request, copies of the policies under which such insurance is
issued, certificates of insurance and such other information relating to such
insurance as the Administrative Agent may reasonably request. The Borrower will
deliver to the Administrative Agent (i) upon request of the Administrative
Agent from time to time, full information as to the insurance carried, (ii) with
respect to any policy providing for coverage in excess of $50,000,000, within
five (5) days of receipt of notice from any insurer, a copy of any notice of
cancellation or material change in coverage from that existing on the date of
this Agreement and (iii) with respect to any policy providing for coverage in
excess of $50,000,000, forthwith, notice of any cancellation or nonrenewal of
coverage by the Borrower.
Section 5.4. Conduct of Business. The Borrower's primary
business will continue to be acquiring, owning, operating, managing, developing
(to the extent permitted in this Agreement), financing or leasing assets of the
Core Asset Type.
Section 5.5. Compliance with Laws. The Borrower will comply
in all material respects with all applicable
86
laws, ordinances, rules, regulations, and requirements of governmental
authorities (including, without limitation, Environmental Laws, all zoning and
building codes and ERISA and the rules and regulations thereunder) except where
the necessity of compliance therewith is contested in good faith by appropriate
proceedings.
Section 5.6. Inspection of Property, Books and Records. The
Borrower will keep proper books of record and account in which full, true and
correct entries shall be made of all dealings and transactions in relation to
its business and activities; and upon at least five (5) Domes tic Business Days'
notice (provided, however, that if an Event of Default shall have occurred and
be continuing, then no such notice shall be required) will permit
representatives of any Bank at such Bank's expense to visit and inspect any of
its properties to examine and make abstracts from any of its books and records
and to discuss its affairs, finances and accounts with its officers and
employees, all at such reasonable times, upon reasonable notice, and as often as
may reasonably be desired.
Section 5.7. Existence.
(a) The Borrower shall do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence.
(b) The Borrower shall do or cause to be done all things
necessary to preserve and keep in full force and effect its patents, trademarks,
servicemarks, tradenames, copyrights, franchises, licenses, permits,
certificates, authorizations, qualifications, accreditations, easements, rights
of way and other rights, consents and approvals the nonexistence of which is
likely to have a Material Adverse Effect.
Section 5.8. Financial Covenants.
(a) Total Liabilities to Total Fair Market Value. As of the
last day of each calendar quarter, the Total Debt Ratio will not be greater than
(i) 60% from the Closing Date through June 30, 1999, (ii) 57.5% from July 1,
1999 through December 31, 1999, (iii) 55% from and after January 1, 2000 through
December 31, 2000, (iv) 52.5% from
87
January 1, 2001 through the final Maturity Date, and (v) notwithstanding the
provisions of clauses (i), (ii), (iii), or (iv) to the contrary, from and after
the Conversion Date, 60%.
(b) Total Debt to Annual EBITDA. As of the last day of each
calendar quarter, the ratio of (i) the sum, without duplication, of (x) the Debt
of the Borrower, MOC and their Consolidated Subsidiaries, and (y) the Borrower's
and MOC's pro rata share of the Debt of any Minority Holdings of the Borrower
or MOC to (ii) Annual EBITDA, will not be more than (x) 5.25:1 commencing as of
July 1, 1998 through December 31, 1998, (y) 5.0:1 from January 1, 1999 through
December 31, 1999, and 4.75:1 thereafter. For purposes of this clause (b), prior
to June 30, 1999, Annual EBITDA shall be calculated on an annualized basis,
commencing as of the quarter ending September 30, 1998, and from and after July
1, 1999, Annual EBITDA shall be calculated based upon the Annual EBITDA for the
preceding four quarters.
(c) EBITDA Debt Service Coverage. As of the last day of each
calendar quarter, the ratio of (x) Annual EBITDA to (y) Total Debt Service, will
not be less than 2.0:1.
(d) Fixed Charge Coverage. As of the last day of each calendar
quarter, the ratio of (x) Annual EBITDA, less such reserves for Capital
Expenditures as are set forth in the definition of Total Fair Market Value, to
(y) the sum of (i) Total Debt Service, (ii) scheduled payments of principal on
any Debt of the Borrower, MOC or any Consolidated Subsidiary, whether or not
paid by the Borrower, MOC or any such Consolidated Subsidiary (excluding balloon
payments) for the previous four consecutive quarters including the quarter then
ended, plus the Borrower's, MOC's and their Consolidated Subsidiaries' pro rata
share of scheduled payments of principal on any Debt of any Minority Holding,
whether or not paid by the Borrower, MOC or their Consolidated Subsidiaries
(excluding balloon payments) for the previous four consecutive quarters
including the quarter then ended, and (iii) dividends or other payments payable
by the Borrower or MOC with respect to any preferred stock of the Borrower or
MOC, will not be less than 1.75:1.
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(e) Unsecured Debt Ratio. As of the last day of each calendar
quarter, the Unsecured Debt Ratio will not be less than (x) 0.9:1 commencing as
of July 1, 1998 through December 31, 1998, (y) 0.95:1 from January 1, 1999
through June 30, 1999, and 1.0:1 thereafter.
(f) Unencumbered Debt Service Coverage. As of the last day of
each calendar quarter, the ratio of (i) Unencumbered Asset Pool Net Operating
Cash Flow to (ii) Unsecured Interest Expense will not be less than 2.0:1.
(g) Minimum Consolidated Tangible Net Worth. The Consolidated
Tangible Net Worth will at no time be less than the sum of (i) $2,500,000,000,
(ii) 75% of all Net Offering Proceeds, and (iii) in the case of convertible Debt
in existence as of the Closing Date, upon conversion of any such Debt to an
equity interest in the Borrower or MOC, 75% of the principal amount of such Debt
so converted.
(h) Limitation on Secured Debt. Secured Debt of the Borrower,
MOC and their Consolidated Subsidiaries shall at no time exceed twenty-five
percent (25%) of Total Fair Market Value, exclusive of any Mortgages delivered
in connection with the Security Conversion or any intercompany debt otherwise
permitted hereunder.
(i) Dividends. The Borrower will not, as deter mined on an
aggregate annual basis, pay any cash dividends in excess of (i) 100% of its
combined consolidated FFO for such year for the period ending June 30, 1999, and
(ii) 95% from and after July 1, 1999. Notwithstanding the foregoing, however,
the Borrower may make a one-time dividend to maintain its status as a REIT in
connection with its acquisition of La Quinta Inns, Inc. MOC will not, as
determined on an aggregate annual basis, pay any cash dividends in excess of the
sum of 100% of its net income (as determined in accordance with GAAP) and
non-cash items. The Borrower or MOC shall be permitted to (i) dividend to its
shareholders the stock of any Consolidated Subsidiary, provided that such
Consolidated Subsidiary shall not own at such time any assets that meet the
asset requirements of Section 856(c)(4) of the Internal Revenue Code, and (ii)
issue additional shares of stock in itself to its shareholders up
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to such amount as shall result in 51% of the stock of the Borrower not being
traded with the stock of MOC.
Section 5.9. Restriction on Fundamental Changes; Operation
and Control. (a) None of the Borrower, MOC or any Guarantor Subsidiary shall
enter into any merger or consolidation, unless the Borrower, MOC or such
Guarantor Subsidiary, as the case may be, is the surviving entity, or
liquidate, wind-up or dissolve (or suffer any liquidation or dissolution),
discontinue its business or convey, lease, sell, transfer or otherwise dispose
of, in one transaction or series of transactions, any substantial part of its
business or property, whether now or hereafter acquired, without the prior
written consent of the Administrative Agent, which consent shall not be
unreasonably withheld, conditioned or delayed.
(b) The Borrower shall not amend its certificate of
incorporation or by-laws, as applicable, in any material respect, without the
Administrative Agent's consent, which shall not be unreasonably withheld or
delayed. Notwithstanding the foregoing, the filing of a certificate of
designation with respect to an issuance of any class or series of preferred or
series common stock shall not constitute an amendment for purposes hereof. In
addition, filing of certificates of amendment with respect to the increase in
the authorized capital of each of the Borrower and MOC to provide for 25,000,000
shares of excess stock shall not be deemed to be a material amendment for
purposes hereof.
Section 5.10. Changes in Business. Neither the Borrower nor
MOC shall enter into any business other than businesses with respect to the Core
Asset Types if the same shall result in (i) more than 20% of the Total Fair
Market Value being attributable to assets of a type other than the Core Asset
Type, or (ii) more than 10% of the Total Fair Market Value being attributable to
assets of a single type other than the Core Asset Type, with the exception of
"time sharing" Real Property Assets which may constitute up to 15% of the Total
Fair Market Value.
Section 5.11. Fiscal Year; Fiscal Quarter. The Borrower shall
not change its fiscal year or any of its
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fiscal quarters without the Administrative Agent's consent, which shall not be
unreasonably withheld or delayed.
Section 5.12. Margin Stock. None of the proceeds of the Loan
will be used, directly or indirectly, for the purpose, whether immediate,
incidental or ultimate, of buying or carrying any Margin Stock.
Section 5.13. Intentionally Omitted.
Section 5.14. Interest Rate Protection. The Borrower and MOC
shall maintain Interest Rate Xxxxxx on a notional amount of the Debt of the
Borrower, MOC and their Subsidiaries which, when added to the aggregate
principal amount of the Debt of the Borrower, MOC and their Subsidiaries which
bears interest at a fixed rate, equals or exceeds 60% of the aggregate principal
amount of all Debt of the Borrower, MOC and their Subsidiaries. "Interest Rate
Xxxxxx" shall mean interest rate exchange, collar, cap, swap, adjustable strike
cap, adjustable strike corridor or similar agreements having terms, conditions
and tenors reasonably acceptable to the Administrative Agent entered into by the
Borrower, MOC and/or their Subsidiaries in order to provide protection to, or
minimize the impact upon, the Borrower, MOC and/or their Subsidiaries of in
creasing floating rates of interest applicable to Debt.
Section 5.15. Investments. The Borrower shall not invest, nor
permit any Consolidated Subsidiary or Minority Holding to invest in any of the
following asset types so that the portion of the Total Fair Market Value
attributable thereto shall exceed the percentages set forth below:
1. Undeveloped land 5%
2. Construction Assets 20%
3. Joint ventures 10%
4. Minority Holdings and 10%
stock holdings (exclusive
of Subsidiaries)
5. Assets located outside 5%
of the United States
6. An individual operator 35%
of healthcare assets (calculated
as a percentage of the total
Total Fair Market Value
attributable to healthcare assets)
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Section 5.16. Use of Proceeds. The Borrower shall use the
proceeds of the Loans solely to finance the acquisition of La Quinta Inns, Inc.,
to repay the obligations under the Existing Credit Agreements, to finance the
acquisition of additional assets and for its general business purposes. The
Borrower shall not use any of the proceeds of the Loans to satisfy any
obligations of the Borrower under any forward equity contracts.
Section 5.17. Borrower Status. The Borrower shall at all times
(i) maintain its status as a self-directed and self-administered real estate
investment trust under the Internal Revenue Code, and (ii) remain a publicly
traded company listed on the New York Stock Exchange.
Section 5.18. Limitations On Subsidiary Debt. No Subsidiary
of the Borrower shall incur Debt other than (i) combined consolidated
intercompany debt, which by its terms (or pursuant to separate agreement) shall
be fully subordinated in right of payment to the Loans and other Obligations
hereunder (the Borrower hereby acknowledging and agreeing that with respect to
all such intercompany debt of which it is or at any time may be the beneficiary,
the same is and shall be fully subordinated to the payment in full of the
Obligations), (ii) existing Debt, as more particularly set forth on Schedule
5.18 hereto, and (iii) Debt which in the aggregate does not exceed 5% of Total
Fair Market Value, provided, however, in no event may Unsecured Debt of such
Subsidiaries exceed 1% in the aggregate of Total Fair Market Value.
Section 5.19. Negative Pledge. Neither the Borrower nor MOC
will, nor will they permit any of their Subsidiaries to, enter into any
agreement (other than this Agreement and the other Loan Documents) prohibiting
the creation or assumption of any Lien upon their properties (other than with
respect to any mortgage on a particular property), revenues or assets, whether
now owned or hereafter acquired, or restricting the ability of the Borrower to
amend or modify this Agreement or any other Loan Document.
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Section 5.20. Affiliate Transactions. Neither the Borrower
nor MOC will enter into any transaction with or make any payment to any
Affiliates unless the terms thereof are not less favorable to the Borrower, MOC
or any Subsidiary than those which are generally available in the market.
Section 5.21. Sale of Unencumbered Asset Pool Properties.
Prior to the sale or transfer of any Real Property Asset that is an Unencumbered
Asset Pool Property or any interest in any Subsidiary owning any Real Property
Asset that is an Unencumbered Asset Pool Property, to which, individually or in
the aggregate, $50,000,000 or more of Total Fair Market Value is attributable,
the Borrower shall (i) deliver prior written notice to the Administrative
Agent and the Banks, (ii) deliver to the Administrative Agent and the Banks a
certificate from an officer certifying that at the time of such sale or other
disposal (based on pro-forma calculations for the previous period assuming that
such Real Property Asset or interest was not owned by the Borrower for the
relevant period) all of the covenants contained in Sections 5.08 and 5.15 are
and after giving effect to the transaction shall continue to be true and
accurate in all respects, and (iii) pay to the Administrative Agent an amount
equal to that required pursuant to Section 2.10. Notwithstanding anything
contained herein to the contrary, during the continuance of any Event of
Default, the Borrower shall not sell or transfer any Real Property Asset that is
an Unencumbered Asset Pool Property, or take any action that would cause such
Real Property Asset to cease to qualify as an Unencumbered Asset Pool Property.
Section 5.22. Guarantor Subsidiary. The Borrower shall
deliver not less than five (5) Domestic Business Days' notice prior to the
creation of any Guarantor Subsidiary or prior to the date on which an existing
Subsidiary shall become a Guarantor Subsidiary, and within ten (10) Domestic
Business Days thereafter, shall cause any such Subsidiary to execute and deliver
to the Administra tive Agent, for the benefit of the Banks, a Guaranty.
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ARTICLE VI
DEFAULTS
Section 6.1. Events of Default. Each of the following shall
constitute an event of default under this Agreement (an "Event of Default"):
(a) the Borrower shall fail to pay when due any principal of
any Loan, or the Borrower shall fail to pay within five (5) Domestic Business
Days after the same is due any interest on any Loan or any fees or other amounts
payable hereunder;
(b) the Borrower shall fail to observe or per form any
covenant contained in Sections 5.8 through and including 5.23, inclusive,
subject to any applicable grace periods set forth therein;
(c) the Borrower shall fail to observe or per form any
covenant or agreement contained in this Agreement (other than those covered by
clause (a) or (b) above) for 30 days after written notice thereof has been given
to the Borrower by the Administrative Agent, provided, however, that if the same
is not reasonably capable of cure within such 30 day period, then provided that
the Borrower shall have commenced to cure the same within such 30 day period and
shall diligently prosecute the same, then such 30 day period shall be extended
to 90 days;
(d) any representation, warranty, certification or statement
made by the Borrower in this Agreement or in any certificate, financial
statement or other document delivered pursuant to this Agreement shall prove to
have been incorrect in any material respect when made (or deemed made);
(e) the Borrower or MOC shall default in the payment when due
(whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise) of any amount owing in respect of (i) any Recourse Debt or Debt
guaranteed by the Borrower, MOC or any Subsidiary (other than the Obligations),
equal to or in excess of $10,000,000 in the aggregate, or (ii) any Non-Recourse
Debt of the Borrower, MOC or any Subsidiary equal to or in excess of
$25,000,000, and such default under either clause (i) or (ii) shall continue
beyond the giving of any required notice and the expiration of any applicable
grace period (as the same may be extended by the applicable lender) and
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such default shall not be waived by the applicable lender (which waiver shall
serve to reinstate the applicable loan), or the Borrower or MOC shall default in
the performance or observance of any obligation or condition with respect to
any such Debt or any other event shall occur or condition exist beyond the
giving of any required notice and the expiration of any applicable grace period
(as the same may be extended by the applicable lender), if in any such case as a
result of such default, event or condition, (x) the lender thereof shall
accelerate the maturity of any such Debt or (y) which would permit (without any
further requirement of notice, other than a notice of acceleration, or lapse of
time) the holder or holders thereof, or any trustee or agent for such holders,
to accelerate the maturity of any such Debt and such default shall not be
waived by the applicable lender (which waiver shall serve to reinstate the
applicable loan), or any such Debt shall become or be declared to be due and
payable prior to its stated maturity other than as a result of a regularly
scheduled payment;
(f) the Borrower or MOC shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due, or shall take any corporate action to authorize any of the
foregoing;
(g) an involuntary case or other proceeding shall be commenced
against the Borrower or MOC seeking liquidation, reorganization or other relief
with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 90
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days; or an order for relief shall be entered against the Borrower or MOC under
the federal bankruptcy laws as now or hereafter in effect;
(h) the Borrower shall default in its obligations under any
Loan Document other than this Agreement beyond any applicable notice and grace
periods;
(i) MOC or any Guarantor Subsidiary shall de fault in its
obligations under the Guaranty beyond any applicable notice and grace periods;
(j) any member of the ERISA Group shall fail to pay when due
an amount or amounts aggregating in excess of $5,000,000 which it shall have
become liable to pay to the PBGC 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 of such Material Plan 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 Sections 4203(a), 4205(a)
or 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 to such Multiemployer Plan in excess of $5,000,000;
(k) one or more final nonappealable judgments or decrees in an
aggregate amount of $10,000,000 as of such date shall be entered by a court or
courts of competent jurisdiction against the Borrower or MOC (other than any
judgment as to which, and only to the extent, a reputable insurance company has
acknowledged coverage of such claim in writing) and (i) any such judgments or
decrees shall not be stayed, discharged, paid, bonded or vacated within thirty
(30) days (or bonded, vacated or satisfied within thirty (30) after any stay is
lifted) or (ii) enforcement proceedings shall be commenced by any creditor on
any such judgments or decrees;
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(l) (i) any Environmental Claim shall have been asserted
against the Borrower or any Environmental Affiliate, (ii) any Release,
emission, discharge or disposal of any Material of Environmental Concern shall
have occurred, and such event is reasonably likely to form the basis of an
Environmental Claim against the Borrower or any Environmental Affiliate, or
(iii) the Borrower or the Environmental Affiliates shall have failed to obtain
any Environmental Approval necessary for the ownership, or operation of its
business, property or assets or any such Environmental Approval shall be
revoked, terminated, or otherwise cease to be in full force and effect, in the
case of clauses (i), (ii) or (iii) above, if the existence of such condition has
had or is reasonably likely to have a Material Adverse Effect;
(m) a Person or an Affiliated group of Persons shall acquire
fifteen percent (15%) or more of the combined voting stock of the Borrower or
MOC, and the Borrower shall not have repaid the Loans in full, returned all
outstanding Letters of Credit and terminated this Agreement within forty-five
(45) days after such Person or group of Persons shall have acquired such
percentage of such stock;
(n) the Borrower shall cease at any time to qualify as a real
estate investment trust under the Internal Revenue Code; and
(o) at any time, for any reason the Borrower, MOC or any
Guarantor Subsidiary seeks to repudiate its obligations under any Loan Document.
Section 6.2. Rights and Remedies. Upon the occurrence of any
Event of Default described in Sections 6.1(f) or (g), the unpaid principal
amount of, and any and all accrued interest on, the Loans and any and all
accrued fees and other Obligations hereunder shall automatically become
immediately due and payable, with all additional interest from time to time
accrued thereon and without presentation, demand, or protest or other
requirements of any kind (including, without limitation, valuation and
appraisement, diligence, presentment, notice of intent to demand or accelerate
and notice of acceleration), all of which are hereby expressly waived by the
Borrower; and upon
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the occurrence and during the continuance of any other Event of Default, the
Administrative Agent may (and, upon the instructions of the Required Banks,
shall) exercise any of its rights and remedies hereunder and by written notice
to the Borrower, terminate the Tranche A Loan Commitments, declare the unpaid
principal amount of and any and all accrued and unpaid interest on the Loans and
any and all accrued fees and other Obligations hereunder to be, and the same
shall thereupon be, immediately due and payable with all additional interest
from time to time accrued thereon and without presentation, demand, or protest
or other requirements of any kind other than as provided in the Loan Documents
(including, without limitation, valuation and appraisement, diligence,
presentment, and notice of intent to demand or accelerate), all of which are
hereby expressly waived by the Borrower.
Section 6.3. Notice of Default. If the Administrative Agent
shall not already have given any notice to the Borrower under Section 6.1, the
Administrative Agent shall give notice to the Borrower under Section 6.1
promptly upon being requested to do so by the Required Banks and shall thereupon
notify all the Banks thereof.
Section 6.4. Actions in Respect of Letters of Credit. (a) If,
at any time and from time to time, any Letter of Credit shall have been issued
hereunder and an Event of Default shall have occurred and be continuing, then,
upon the occurrence and during the continuation thereof, the Administrative
Agent may (and shall, at the request of any of the Fronting Banks), whether in
addition to the taking by the Administrative Agent of any of the actions
described in this Article or otherwise, make a demand upon the Borrower to, and
forthwith upon such demand (but in any event within ten (10) days after such
demand) the Borrower shall, pay to the Administrative Agent, on behalf of the
Banks, in same day funds at the Administra tive Agent's office designated in
such demand, for deposit in a special cash collateral account (the "Letter of
Credit Collateral Account") to be maintained in the name of the Administrative
Agent (on behalf of the Banks) and under its sole dominion and control at such
place as shall be designated by the Administrative Agent, an amount equal to
the amount of the Letter of Credit Usage under the Letters of Credit. Interest
shall accrue on the Letter of Credit
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Collateral Account at a rate equal to the rate on overnight funds.
(b) In connection with the foregoing, the Borrower hereby
pledges, assigns and grants to the Administra tive Agent, as administrative
agent for its benefit and the ratable benefit of the Banks a lien on and a
security interest in, the following collateral (the "Letter of Credit
Collateral"):
(i) the Letter of Credit Collateral Account, all
cash deposited therein and all certificates and instruments, if any,
from time to time representing or evidencing the Letter of Credit
Collateral Account;
(ii) all notes, certificates of deposit and other
instruments from time to time hereafter delivered to or otherwise
possessed by the Administrative Agent for or on behalf of the Borrower
in substitution for or in respect of any or all of the then existing
Letter of Credit Collateral;
(iii) all interest, dividends, cash, instruments and
other property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the then
existing Letter of Credit Collateral; and
(iv) to the extent not covered by the above
clauses, all proceeds of any or all of the fore going Letter of Credit
Collateral.
The lien and security interest granted hereby secures the payment of all
obligations of the Borrower now or hereafter existing hereunder and under any
other Loan Document.
(c) The Borrower hereby authorizes the Administrative Agent
for the ratable benefit of the Banks to apply, from time to time after funds are
deposited in the Letter of Credit Collateral Account, funds then held in the
Letter of Credit Collateral Account to the payment of any amounts, in such order
as the Administrative Agent may elect, as shall have become due and payable by
the Borrower to the Banks in respect of the Letters of Credit.
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(d) Neither the Borrower nor any Person claiming or acting on
behalf of or through the Borrower shall have any right to withdraw any of the
funds held in the Letter of Credit Collateral Account, except as provided in
Section 6.4(h) hereof.
(e) The Borrower agrees that it will not (i) sell or otherwise
dispose of any interest in the Letter of Credit Collateral or (ii) create or
permit to exist any lien, security interest or other charge or encumbrance upon
or with respect to any of the Letter of Credit Collateral, except for the
security interest created by this Section 6.4.
(f) If any Event of Default shall have occurred and be
continuing:
(i) The Administrative Agent may, in its sole
discretion, without notice to the Borrower except as required by law
and at any time from time to time, charge, set off or otherwise apply
all or any part of first, (x) amounts previously drawn on any Letter of
Credit that have not been reimbursed by the Borrower and (y) any Letter
of Credit Usage described in clause (ii) of the definition thereof that
are then due and payable and second, any other unpaid Obligations then
due and payable against the Letter of Credit Collateral Account or any
part thereof, in such order as the Administrative Agent shall elect.
The rights of the Administrative Agent under this Section 6.4 are in
addition to any rights and remedies which any Bank may have.
(ii) The Administrative Agent may also exercise, in
its sole discretion, in respect of the Letter of Credit Collateral
Account, in addition to the other rights and remedies provided herein
or otherwise available to it, all the rights and remedies of a secured
party upon default under the Uniform Commercial Code in effect in the
State of New York at that time.
(g) The Administrative Agent shall be deemed to have exercised
reasonable care in the custody and preserva-
100
tion of the Letter of Credit Collateral if the Letter of Credit Collateral is
accorded treatment substantially equal to that which the Administrative Agent
accords its own property, it being understood that, assuming such treatment,
the Administrative Agent shall not have any responsibility or liability with
respect thereto.
(h) At such time as all Events of Default have been cured or
waived in writing, all amounts remaining in the Letter of Credit Collateral
Account shall be promptly returned to the Borrower. Absent such cure or written
waiver, any surplus of the funds held in the Letter of Credit Collateral Account
and remaining after payment in full of all of the Obligations of the Borrower
hereunder and under any other Loan Document after the Maturity Date shall be
paid to the Borrower or to whomsoever may be lawfully entitled to receive such
surplus.
ARTICLE VII
THE ADMINISTRATIVE AGENT
Section 7.1. Appointment and Authorization. Each Bank
irrevocably appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement
and the other Loan Documents as are delegated to the Administrative Agent by the
terms hereof or thereof, together with all such powers as are reasonably
incidental thereto.
Section 7.2. Administrative Agent and Affiliates. Xxxxxx
shall have the same rights and powers under this Agreement as any other Bank and
may exercise or refrain from exercising the same as though it were not the
Administrative Agent, and Xxxxxx and its affiliates may accept deposits from,
lend money to, and generally engage in any kind of business with the Borrower or
any subsidiary or affiliate of the Borrower as if it were not the Administrative
Agent hereunder, and the term "Bank" and "Banks" shall include Xxxxxx in its
individual capacity.
Section 7.3. Action by Administrative Agent. The obligations
of the Administrative Agent hereunder are only those expressly set forth herein.
Without limiting
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the generality of the foregoing, the Administrative Agent shall not be required
to take any action with respect to any Default, except as expressly provided in
Article VI.
Section 7.4. Consultation with Experts. The Administrative
Agent may consult with legal counsel (who may be counsel for the Borrower),
independent public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or experts.
Section 7.5. Liability of Administrative Agent. Neither the
Administrative Agent nor any of its affiliates nor any of their respective
directors, officers, agents or employees shall be liable for any action taken or
not taken by it in connection herewith (i) with the consent or at the request of
the Required Banks or, where required by the terms of this Agreement, all of the
Banks, or (ii) in the absence of its own gross negligence or willful misconduct.
Neither the Administrative Agent nor any of its directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into
or verify (i) any statement, warranty or representation made in connection with
this Agreement or any borrowing hereunder; (ii) the performance or observance of
any of the covenants or agreements of the Borrower; (iii) the satisfaction of
any condition specified in Article III, except receipt of items required to be
delivered to the Administrative Agent; or (iv) the validity, effectiveness or
genuineness of this Agreement, the other Loan Documents or any other instrument
or writing furnished in connection herewith. The Administrative Agent shall not
incur any liability by acting in reliance upon any notice, consent, certificate,
statement, or other writing (which may be a bank wire, telex or similar writing)
believed by it in good faith to be genuine or to be signed by the proper party
or parties.
Section 7.6. Indemnification. Each Bank shall, ratably in
accordance with its Commitment or if the Commitments have been terminated, in
accordance with the aggregate unpaid principal amount of its Loans and its share
of the Letter of Credit Usage, indemnify the Administrative Agent and each Bank
acting as syndication agent or
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co-documentation agent, its affiliates and their respective directors, officers,
agents and employees (to the extent not reimbursed by the Borrower) against any
cost, expense (including counsel fees and disbursements), claim, demand, action,
loss or liability (except such as result from such indemnitees' gross
negligence, willful misconduct, bad faith or fraud) that such indemnitees may
suffer or incur in connection with this Agreement, the other Loan Documents or
any action taken or omitted by such indemnitees hereunder.
Section 7.7. Credit Decision. Each Bank acknowledges that it
has, independently and without reliance upon the Administrative Agent or any
other Bank, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Bank also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Bank, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking any action under this
Agreement.
Section 7.8. Successor Administrative Agent. The
Administrative Agent may resign at any time by giving notice thereof to the
Banks and the Borrower. Upon any such resignation, the Required Banks shall have
the right to appoint a successor Administrative Agent with the consent of the
Borrower provided that no Event of Default shall have occurred and be
continuing. If no successor Administrative Agent shall have been so appointed by
the Required Banks or so consented to by the Borrower, and shall have accepted
such appointment, within 30 days after the retiring Administrative Agent gives
notice of resignation, then the retiring Administrative Agent may, on behalf of
the Banks, with the consent of the Borrower, provided no Event of Default shall
have occurred and be outstanding, which consent shall not be unreasonably
withheld, appoint a successor Administrative Agent, which shall be a commercial
bank organized or licensed under the laws of the United States of America or of
any State thereof and having a combined capital and surplus of at least
$50,000,000. Upon the acceptance of its appointment as the Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to
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and become vested with all the rights and duties of the retiring Administrative
Agent, and the retiring Administra tive Agent shall be discharged from its
duties and obligations hereunder first accruing or arising after the effective
date of such retirement. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Article shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
the Administrative Agent.
Section 7.9. Administrative Agent's Fee. The Borrower shall
pay to the Administrative Agent for its own account fees in the amounts and at
the times previously agreed upon between the Borrower and the Administrative
Agent.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
Section 8.1. Basis for Determining Interest Rate Inadequate
or Unfair. If on or prior to the first day of any Interest Period for any
Euro-Dollar Borrowing or Money Market Borrowing:
(a) the Administrative Agent is advised by the Reference Bank
that deposits in dollars (in the applicable amounts) are not being offered to
the Reference Bank in the relevant market for such Interest Period, or
(b) Banks having 50% or more of the aggregate amount of the
affected Loans advise the Administrative Agent that the Adjusted London
Interbank Offered Rate as determined by the Administrative Agent will not
adequately and fairly reflect the cost to such Banks of funding their
Euro-Dollar Loans for such Interest Period, the Administra tive Agent shall
forthwith give notice thereof to the Borrower and the Banks, whereupon until the
Administrative Agent notifies the Borrower that the circumstances giving rise to
such suspension no longer exist, the obligations of the Banks to make
Euro-Dollar Loans, or to continue or convert outstanding Loans as or into
Euro-Dollar Loans, as the case may be, shall be suspended, and each outstanding
Euro-Dollar Loan shall be converted into a Base Rate Loan
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on the last day of the then current Interest Period applicable thereto. Unless
the Borrower notifies the Administrative Agent at least two Domestic Business
Days before the date of any Euro-Dollar Borrowing or Money Market Euro-Dollar
Borrowing for which a Notice of Borrowing has previously been given that it
elects not to borrow on such date, (i) if such Borrowing is a Committed
Borrowing, such Borrowing shall instead be made as a Base Rate Borrowing, and
(ii) if such Borrowing is a Money Market Euro-Dollar Borrowing, the Money
Market LIBOR Loans comprising such Borrowing shall bear interest for each day
from and including the first day to but excluding the last day of the Interest
Period applicable thereto at the Base Rate for such day.
Section 8.2. Illegality. If, after the date of this Agreement,
the adoption of any applicable law, rule or regulation, or any change in any
existing applicable law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency, including the NAIC, charged with the interpretation or
administration thereof, or compliance by any Bank (or its Euro-Dollar Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency, including the NAIC,
shall make it unlawful or impossible for any Bank (or its Euro-Dollar Lending
Office) to make, maintain or fund its Euro-Dollar Loans or Money Market Loans or
to participate in any Letter of Credit issued by the Fronting Bank, or, with
respect to the Fronting Bank, to issue any Letter of Credit, and such Bank shall
so notify the Administrative Agent, the Administrative Agent shall forthwith
give notice thereof to the other Banks and the Borrower, whereupon until such
Bank notifies the Borrower and the Administrative Agent that the circumstances
giving rise to such suspension no longer exist, the obligation of such Bank to
make or convert Euro-Dollar Loans or Money Market Loans, or to participate in
any Letter of Credit issued by the Fronting Bank or, with respect to the
Fronting Bank, to issue any Letter of Credit, shall be suspended. Before giving
any notice to the Administrative Agent pursuant to this Section, such Bank shall
designate a different Euro-Dollar Lending Office if such designation will avoid
the need for giving such notice and will not, in
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the reasonable judgment of such Bank, be otherwise disadvantageous to such Bank.
If such Bank shall determine that it may not lawfully continue to maintain and
fund any of its outstanding Euro-Dollar Loans or Money Market Loans (as the case
may be) to maturity and shall so specify in such notice, the Borrower shall
immediately prepay, without payment of any costs pursuant to Section 2.13, in
full the then outstanding principal amount of each such Euro-Dollar Loan or
Money Market Loan, together with accrued interest thereon. Concurrently with
prepaying each such Euro-Dollar Loan, the Borrower shall borrow a Base Rate Loan
in an equal principal amount from such Bank (on which interest and principal
shall be payable contemporaneously with the related Euro-Dollar Loans or Money
Market Loans of the other Banks), and such Bank shall make such a Base Rate
Loan.
If at any time, it shall be unlawful or impossible for any
Bank to make, maintain or fund its Euro-Dollar Loans under Section 8.1 or
Section 8.2, the Borrower shall have the right, upon five (5) Domestic Business
Day's notice to the Administrative Agent, to either (x) cause a bank, reasonably
acceptable to the Administrative Agent, or a Bank, to offer to purchase the
Commitments of such Bank for an amount equal to such Bank's outstanding Loans,
and to become a Bank hereunder, which offer such Bank is hereby required to
accept, or (y) to repay, including through a Borrowing hereunder, in full all
Loans then outstanding of such Bank, together with interest and all other
amounts due thereon, upon which event, such Bank's Commitments shall be deemed
to be cancelled pursuant to Section 2.11(f).
Section 8.3. Increased Cost and Reduced Return.
(b) If, after (x) the date hereof, in the case of any
Committed Loan or any obligation to make Committed Loans or (y) the date of the
related Money Market Quote, in the case of any Money Market Loan, the adoption
of any applicable law, rule or regulation, or any change in any applicable law,
rule or regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency,
including the NAIC, charged with the interpretation or administration thereof,
or compliance by any Bank (or its Applicable
106
Lending Office) with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency, including the NAIC, shall impose, modify or deem applicable any reserve
(including, without limitation, any such requirement imposed by the Board of
Governors of the Federal Reserve System (but excluding with respect to any
Euro-Dollar Loan any such requirement reflected in an applicable Euro-Dollar
Reserve Percentage)), special deposit, insurance assessment or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, any Bank (or its Applicable Lending Office) or shall impose on any
Bank (or its Applicable Lending Office) or on the London interbank market any
other condition affecting its Euro-Dollar Loans or Money Market LIBOR Loans, its
Note, or its obligation to make Euro-Dollar Loans, and the result of any of the
fore going is to increase the cost to such Bank (or its Applicable Lending
Office) of making or maintaining any Euro-Dollar Loan, or to reduce the amount
of any sum received or receivable by such Bank (or its Applicable Lending
Office) under this Agreement or under its Note with respect thereto, by an
amount reasonably deemed by such Bank to be material, then, within 15 days after
demand by such Bank (with a copy to the Administrative Agent), which demand
shall be accompanied by a certificate showing, in reason able detail, the
calculation of such amount or amounts, the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank on an after-tax basis
for such increased cost or reduction.
(b) If any Bank shall have determined that, after the date
hereof, the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any such law, rule or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency, including the NAIC, charged with the
interpretation or administration thereof, or any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, including the NAIC, has or would have the
effect of reducing the rate of return on capital of such Bank (or its Parent) as
a consequence of such Bank's obligations hereunder to a level below that which
such Bank (or its Parent) could have achieved but for such adoption, change,
request
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or directive (taking into consideration its policies with respect to capital
adequacy) by an amount reasonably deemed by such Bank to be material, then from
time to time, within 15 days after demand by such Bank (with a copy to the
Administrative Agent), which demand shall be accompanied by a certificate
showing, in reasonable detail, the calculation of such amount or amounts, the
Borrower shall pay to such Bank such additional amount or amounts as will
compensate such Bank (or its Parent) on an after-tax basis for such reduction.
(c) Each Bank will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Bank to compensation pursuant to this
Section and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the reason able judgment of such Bank, be otherwise materially
disadvantageous to such Bank. A certificate of any Bank claiming compensation
under this Section and setting forth the additional amount or amounts to be paid
to it hereunder shall be conclusive in the absence of manifest error. In
determining such amount, such Bank may use any reasonable averaging and
attribution methods.
(d) If at any time, it shall be unlawful or impossible for any
Bank to make, maintain or fund its Euro-Dollar Loans or if the Borrower is
required to make a payment under Sections 8.3(a) or (b), the Borrower shall have
the right, upon five (5) Domestic Business Day's notice to the Administrative
Agent, to either (x) cause a bank, reasonably acceptable to the Administrative
Agent, or a Bank, to offer to purchase the Commitments of such Bank for an
amount equal to such Bank's outstanding Loans, and to become a Bank hereunder,
which offer such Bank is hereby required to accept, or (y) to repay, including
with a Borrowing hereunder, in full all Loans then outstanding of such Bank,
together with interest and all other amounts due thereon, upon which event, such
Bank's Commitments shall be deemed to be cancelled pursuant to Section 2.11(f).
Section 8.4. Taxes.
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(a) Any and all payments by the Borrower to or for the account
of any Bank or the Administrative Agent hereunder or under any other Loan
Document shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Bank and the Administrative Agent, taxes imposed on its net income, and
franchise taxes imposed on its net income, by the jurisdiction under the laws of
which such Bank or the Administrative Agent (as the case may be) is organized or
any political subdivision thereof and, in the case of each Bank, taxes imposed
on its net income, and franchise or similar taxes imposed on its net income, by
the jurisdiction of such Bank's Applicable Lending Office or any political
subdivision thereof (and, if different from the jurisdiction of such Bank's
Applicable Lending Office, the jurisdiction of the domicile of its Loans either
established by the Bank pursuant to Section 9.12 or determined by the
applicable taxing authorities) (all such non-excluded taxes, duties, levies,
imposts, deductions, charges, with holdings and liabilities being hereinafter
referred to as "Taxes"). If the Borrower shall be required by law to deduct any
Taxes from or in respect of any sum payable hereunder or under any Note or
Letter of Credit or participation therein to any Bank or the Administrative
Agent, (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section 8.4) such Bank, the Fronting Bank or the
Administrative Agent (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions, (iii) the Borrower shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with
applicable law and (iv) the Borrower shall furnish to the Administrative Agent,
at its address referred to in Section 9.1, the original or a certified copy of
a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes and any other excise or property taxes, or
charges or similar levies which arise from any payment made hereunder or under
any Note or Letter of Credit or participation therein or from
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the execution or delivery of, or otherwise with respect to, this Agreement or
any Note or Letter of Credit or participation therein (hereinafter referred to
as "Other Taxes").
(c) The Borrower agrees to indemnify each Bank, the Fronting
Bank and the Administrative Agent for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed or asserted by
any jurisdiction on amounts payable under this Section 8.4) paid by such Bank,
the Fronting Bank or the Administrative Agent (as the case may be) and any
liability (including penalties, interest and expenses, provided, however, that
the applicable Bank, Fronting Bank or Administrative Agent shall have notified
the Borrower of the imposition of the applicable Tax or Other Tax within 30 days
of such imposition) arising therefrom or with respect thereto. Any payment
required under this indemnification shall be made within 15 days from the date
such Bank, the Fronting Bank or the Administrative Agent (as the case may be)
makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and delivery
of this Agreement in the case of each Bank listed on the signature pages hereof
and on or prior to the date on which it becomes a Bank in the case of each other
Bank, and from time to time thereafter if requested in writing by the Borrower
(but only so long as such Bank remains lawfully able to do so), shall provide
the Borrower with (i) Internal Revenue Service form 1001 or 4224, as
appropriate, or any successor form prescribed by the Internal Revenue Service,
certifying that such Bank is entitled to benefits under an income tax treaty to
which the United States is a party which reduces the rate of withholding tax on
payments of interest or certifying that the income receivable pursuant to this
Agreement is effectively connected with the conduct of a trade or business in
the United States or (ii) if such Bank is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Internal Revenue Code, Internal Revenue Service form
W-8 or any successor form prescribed by the Internal Revenue Service claiming
complete exemption from, or a reduced rate of, withholding tax on payment of
interest under the Loan Documents. If the form provided by a Bank at the time
such Bank first became a party to this Agreement or at any time
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thereafter (other than solely by reason of a change in United States law or a
change in the terms of any treaty to which the United States is a party after
the date hereof) indicates a United States interest withholding tax rate in
excess of zero (or would have indicated such a withholding tax rate if such form
had been submitted and completed accurately and completely and either was not
submitted or was not completed accurately and completely), or if a Bank
otherwise is subject to United States interest withholding tax at a rate in
excess of zero at any time for any reason (other than solely by reason of a
change in United States law or regulation or a change in any treaty to which the
United States is a party after the date hereof), withholding tax at such rate
shall be considered excluded from "Taxes" as defined in Section 8.4(a). In
addition, any amount that otherwise would be considered "Taxes" or "Other Taxes"
for purposes of this Section 8.4 shall be excluded therefrom if the Bank either
has transferred the domicile of its Loans pursuant to Section 9.12 or changed
the Applicable Lending Office with respect to such Loans and such amount would
not have been incurred had such transfer or change not been made.
(e) For any period with respect to which a Bank has failed to
provide the Borrower with the appropriate form pursuant to Section 8.4(d)
(unless such failure is due to a change in treaty, law or regulation occurring
subsequent to the date on which a form originally was required to be provided),
such Bank shall not be entitled to indemnification under Section 8.4(a) with
respect to Taxes imposed by the United States; provided, however, that should a
Bank, which is otherwise exempt from or subject to a reduced rate of withholding
tax, become subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as such Bank shall reasonably
request to assist such Bank to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to
or for the account of any Bank pursuant to this Section 8.4, then such Bank will
change the jurisdiction of its Applicable Lending Office so as to eliminate or
reduce any such additional payment which may thereafter accrue if such change,
in the reasonable judgment of such
111
Bank, is not otherwise materially disadvantageous to such Bank.
(g) If at any time, Taxes shall be payable by the Borrower
hereunder, the Borrower shall have the right, upon five (5) Domestic Business
Day's notice to the Administrative Agent, to either (x) cause a bank,
reasonably acceptable to the Administrative Agent, or a Bank, to offer to
purchase the Commitments of such Bank for an amount equal to such Bank's
outstanding Loans, and to become a Bank hereunder, which offer such Bank is
hereby required to accept, or (y) to repay, including with a Borrowing
hereunder, in full all Loans then outstanding of such Bank, together with
interest and all other amounts due thereon, upon which event, such Bank's
Commitments shall be deemed to be cancelled pursuant to Section 2.11(g).
Section 8.5. Base Rate Loans Substituted for Affected
Euro-Dollar Loans. If (i) the obligation of any Bank to make, or convert
outstanding Loans to, Euro-Dollar Loans has been suspended pursuant to Sections
8.1 or 8.2 or (ii) any Bank has demanded compensation under Section 8.3 or 8.4
with respect to its Euro-Dollar Loans and the Borrower shall, by at least five
Euro-Dollar Business Days' prior notice to such Bank through the Administrative
Agent, have elected that the provisions of this Section shall apply to such
Bank, then, unless and until such Bank notifies the Borrower that the
circumstances giving rise to such suspension or demand for compensation no
longer exist:
(a) all Loans which would otherwise be made by such Bank as
Euro-Dollar Loans shall be made instead as Base Rate Loans (on which interest
and principal shall be payable contemporaneously with the related Euro-Dollar
Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans has been repaid, all
payments of principal which would otherwise be applied to repay such Euro-Dollar
Loans shall be applied to repay its Base Rate Loans instead.
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ARTICLE IX
MISCELLANEOUS
Section 9.1. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile transmission or similar writing) and shall be given to such
party: (x) in the case of the Borrower or the Administrative Agent, at its
address or telecopy number set forth on the signature pages hereof, together
with copies thereof, in the case of the Borrower, to Xxxxx 000, 000 Xxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, Attention: President, Telephone: (781)
000-0000, Telecopy: (000) 000-0000, with a copy to: the Borrower, Xxxxx 000, 000
Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, Attention: General Counsel,
Telephone: (000) 000-0000, Telecopy: (000) 000-0000, with a copy to: Xxxxxx,
XxXxxxxxx & Fish, LLP, Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Xxxx X. Xxxxxx, Esq., and in the case of the Administrative Agent, to
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx Xxxxxxxxxxx, Esq., Telephone: (000) 000-0000, Telecopy:
(000) 000-0000, (y) in the case of any Bank, at its address or telecopy number
set forth on the signature pages hereof or in its Administrative Questionnaire
or (z) in the case of any party, such other address or telecopy number as such
party may hereafter specify for the purpose by notice to the Administrative
Agent, the Banks and the Borrower. Each such notice, request or other
communication shall be effective (i) if given by telecopy, when such telecopy
is transmitted to the telecopy number specified in this Section, (ii) if given
by mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid or (iii) if given by any other
means, when delivered at the address specified in this Section; provided that
notices to the Administrative Agent under Article II or Article VIII shall not
be effective until received.
Section 9.2. No Waivers. No failure or delay by the
Administrative Agent or any Bank in exercising any right, power or privilege
hereunder or under any Note shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
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Section 9.3. Expenses; Indemnification.
(a) The Borrower shall pay (i) all reasonable out-of-pocket
expenses of the Administrative Agent (including, without limitation, reasonable
fees and disbursements of special counsel Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP), in connection with the preparation and administration of this Agreement,
the Loan Documents and the documents and instruments referred to therein, the
syndication of the Loans, any waiver or consent hereunder or any amendment or
modification hereof or any Default or alleged Default hereunder and (ii) if an
Event of Default occurs, all out-of-pocket expenses incurred by the
Administrative Agent and each Bank, including, without limitation, reasonable
fees and disbursements of counsel for the Administrative Agent and each Bank, in
connection with the enforcement of the Loan Documents and the instruments
referred to therein and such Event of Default and collection, bankruptcy,
insolvency and other enforcement proceedings resulting there from.
(b) The Borrower agrees to indemnify the Administrative Agent
and each Bank, their respective affiliates and the respective directors,
officers, agents and employees of the foregoing (each an "Indemnitee") and hold
each Indemnitee harmless from and against any and all liabilities, losses,
damages, costs and expenses of any kind, including, without limitation, the
reasonable fees and disbursements of counsel and settlements and settlement
costs, which may be incurred by such Indemnitee in connection with any
investigative, administrative or judicial proceeding (whether or not such
Indemnitee shall be designated a party thereto) that may at any time
(including, without limitation, at any time following the payment of the
Obligations) be imposed on, asserted against or incurred by any Indemnitee as a
result of, or arising out of, or in any way related to or by reason of, (i) any
of the transactions contemplated by the Loan Documents or the execution,
delivery or performance of any Loan Document (including, without limitation, the
Borrower's actual or proposed use of proceeds of the Loans, whether or not in
compliance with the provisions hereof), (ii) any violation by the Borrower or
the Environmental Affiliates of any
114
applicable Environmental Law, (iii) any Environmental Claim arising out of the
management, use, control, ownership or operation of property or assets by the
Borrower or any of the Environmental Affiliates, including, without limitation,
all on-site and off-site activities involving Material of Environmental
Concern, (iv) the breach of any environmental representation or warranty set
forth herein, (v) the grant to the Administrative Agent and the Banks of any
Lien in any property or assets of the Borrower or any stock or other equity
interest in the Borrower, and (vi) the exercise by the Administrative Agent and
the Banks of their rights and remedies (including, without limitation,
foreclosure) under any agreements creating any such Lien (but excluding, as to
any Indemnitee, any such losses, liabilities, claims, damages, expenses,
obligations, penal ties, actions, judgments, suits, costs or disbursements
incurred solely by reason of (i) the gross negligence, willful misconduct, bad
faith or fraud of any Indemnitee as finally determined by a court of competent
jurisdiction or (ii) any investigative, administrative or judicial proceeding
imposed or asserted against any Indemnitee by any bank regulatory agency or by
any equity holder of such Indemnitee, it being agreed that the Borrower shall
not be obligated to indemnify any Indemnitee or to pay any expenses if and for
so long as any such court case or proceeding shall be pending provided that the
Borrower shall be diligently prosecuting the same, provided, further, if such
court or proceeding does not finally determine that such Indemnitee has
committed gross negligence, willful misconduct, bad faith or fraud, then the
Borrower shall indemnify such Indemnitee in accordance with the provisions
hereof and shall reimburse such Indemnitee for all expenses, together with
interest thereon from the date incurred to the date so reimbursed at a rate per
annum equal to the Base Rate plus four percent (4%). The Borrower's obligations
under this Section shall survive the termination of this Agreement and the
payment of the Obligations.
(c) The Borrower shall pay, and hold the Administrative Agent
and each of the Banks harmless from and against, any and all present and future
U.S. stamp, recording, transfer and other similar foreclosure related taxes
with respect to the foregoing matters and hold the Administrative Agent and
each Bank harmless from and against any and all liabilities with respect to or
resulting from any
115
delay or omission (other than to the extent attributable to such Bank) to pay
such taxes.
Section 9.4. Sharing of Set-Offs. In addition to any rights
now or hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the continuance of
any Event of Default, each Bank is hereby authorized at any time or from time to
time, without presentment, demand, protest or other notice of any kind to the
Borrower or to any other Person, any such notice being hereby expressly waived,
to set off and to appropriate and apply any and all deposits (general or
special, time or demand, provisional or final), other than deposits held for the
benefit of third parties, and any other indebtedness at any time held or owing
by such Bank (including, without limitation, by branches and agencies of such
Bank wherever located) to or for the credit or the account of the Borrower
against and on account of the Obligations of the Borrower then due and payable
to such Bank under this Agreement or under any of the other Loan Documents,
including, without limitation, all interests in Obligations purchased by such
Bank. Each Bank agrees that if it shall, by exercising any right of set-off or
counterclaim or otherwise, receive payment of a proportion of the aggregate
amount of principal and interest due with respect to any Note held by it or
Letter of Credit participated in by it, or, in the case of the Fronting Bank,
Letter of Credit issued by it, which is greater than the proportion received by
any other Bank or Letter of Credit issued or participated in by such other Bank,
in respect of the aggregate amount of principal and interest due with respect to
any Note held by such other Bank, the Bank receiving such proportionately
greater payment shall purchase such participations in the Notes held by the
other Banks or Letter of Credit issued or participated in by such other Bank,
and such other adjustments shall be made, as may be required so that all such
payments of principal and interest with respect to the Notes held by the Banks
or Letter of Credit issued or participated in by such other Banks shall be
shared by the Banks pro rata; provided that nothing in this Section shall impair
the right of any Bank to exercise any right of set-off or counterclaim it may
have and to apply the amount subject to such exercise to the payment of
indebtedness of the Borrower other than its indebtedness under the Notes or the
Letters of Credit. The
116
Borrower agrees, to the fullest extent that it may effectively do so under
applicable law, that any holder of a participation in a Note, whether or not
acquired pursuant to the foregoing arrangements, may exercise rights of set-off
or counterclaim and other rights with respect to such participation as fully as
if such holder of a participation were a direct creditor of the Borrower in the
amount of such participation.
Section 9.5. Amendments and Waivers. Any provision of this
Agreement (including any of the financial covenants given by the Borrower
pursuant to Section 5.8), the Notes, the Letters of Credit or other Loan
Documents may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Borrower and the Required Banks (and, if the
rights or duties of the Administrative Agent are affected thereby, by the
Administrative Agent); provided that if such amendment or waiver affects only
the Banks of any single tranche, then only the Required Banks within that
tranche shall be required to sign such amendment or waiver; provided further
that no such amendment or waiver shall, unless signed by all the Banks, (i)
increase or decrease the Tranche A Loan Commitment, Tranche B Loan Commitment,
Tranche C Loan Commitment or the Tranche D Loan Commitment of any Bank (except
for a ratable decrease in the Commitments of all Banks) or subject any Bank to
any additional obligation, (ii) reduce the principal of or rate of interest on
any Loan or any fees specified herein, (iii) postpone the date fixed for any
payment of principal of or interest on any Loan or any fees hereunder or for
any reduction or termination of any Commitment, (iv) release the Guaranty or
otherwise release any other collateral including the Mortgages, if applicable,
(v) extend the expiration of any Letter of Credit beyond the Maturity Date
applicable to the Tranche A Loans, (vi) permit the Borrower to assign its rights
under this Agreement, (vii) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes, or the number of Banks, which
shall be required for the Banks or any of them to take any action under this
Section or any other provision of this Agreement, or (viii) change the order of
the application of voluntary or mandatory prepayments pursuant to Sections 2.10
or 2.11. Notwithstanding the foregoing, no amendment, waiver or consent shall,
unless in writing and signed by the Designating Lender on
117
behalf of its Designated Lender affected thereby, (a) subject such Designated
Lender to any additional obligations, (b) reduce the principal of, interest on,
or other amounts due with respect to, the Designated Lender Note made payable to
such Designated Lender, or (c) postpone any date fixed for any payment of
principal of, or interest on, or other amounts due with respect to the
Designated Lender Note made payable to the Designated Lender.
Section 9.6. 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
assigns, except that the Borrower may not assign or otherwise transfer any of
its rights under this Agreement or the other Loan Documents without the prior
written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or
other institutions (each a "Participant") participating interests in its
Commitment or any or all of its Loans. In the event of any such grant by a Bank
of a participating interest to a Participant, whether or not upon notice to the
Borrower and the Administrative Agent, such Bank shall remain responsible for
the performance of its obligations hereunder, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Bank
in connection with such Bank's rights and obligations under this Agreement. Any
agreement pursuant to which any Bank may grant such a participating interest
shall provide that such Bank shall retain the sole right and responsibility to
enforce the obligations of the Borrower hereunder including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such participation agreement may
provide that such Bank will not agree to any modification, amendment or waiver
of this Agreement described in clause (i), (ii), (iii) or (iv) of Section 9.5
without the consent of the Participant. The Borrower agrees that each
Participant shall, to the extent provided in its participation agreement, be
entitled to the benefits of Article VIII with respect to its participating
interest. An assignment or other transfer which is not permitted by subsection
(c) or (d) below shall be given effect for purposes of this Agreement only to
the extent of a partici-
118
pating interest granted in accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or
other institutions (each an "Assignee") all, or a proportionate part of all, of
its rights and obligations under this Agreement, the Notes and the other Loan
Documents in an amount not less than $2,000,000 (unless to an existing Bank or
to a Related Fund of any existing Bank or unless the Assignee at such time shall
hold less than $2,000,000, in which event the assignment shall be of the balance
thereof) (or such lesser amount as may be agreed to by the Administrative Agent)
with respect to any or all of its Tranche A Loan Commitments, Tranche B Loan
Commitments, Tranche C Loan Commitments or Tranche D Loan Commitments, and such
Assignee shall assume such rights and obligations, pursuant to an Assignment and
Assumption Agreement in substantially the form of Exhibit C attached hereto
executed by such Assignee and such transferor Bank, with (and subject to) the
subscribed consent of the Administrative Agent and, in the case of an assignment
of a Tranche A Loan Commitment, the Fronting Bank, which consent shall not be
unreasonably withheld or delayed, and, provided no Event of Default shall have
occurred and be continuing, the Borrower, which consent shall not be
unreasonably withheld or delayed (it being understood, however, that the
Borrower shall retain the right to withhold its consent if any material portion
of the business of the proposed assignee shall be a business which is directly
competitive with that of the Borrower). Notwithstanding the foregoing, however,
no consent shall be required in connection with any assignment to a Person that
is already a Bank hereunder, an Affiliate of the assignor, or a Related Fund of
any Bank. Upon execution, delivery and recordation of such instrument in the
Register pursuant to subsection (g) hereof, and payment by such Assignee to such
transferor Bank of an amount equal to the purchase price agreed between such
transferor Bank and such Assignee, such Assignee shall be a Bank party to this
Agreement and shall have all the rights and obligations of a Bank with a
Commitment as set forth in such instrument of assumption, and the transferor
Bank shall be released from its obligations hereunder to a corresponding extent,
and no further consent or action by any party shall be required. Upon the
consummation of any assignment pursuant to this subsection (c), the transferor
119
Bank, the Administrative Agent and the Borrower shall make appropriate
arrangements so that, if required, a new Note or Notes are issued to the
Assignee. In connection with any such assignment, the transferor Bank shall pay
to the Administrative Agent an administrative fee for processing such assignment
in the amount of $2,500 (provided that only one such fee shall be payable in
connection with simultaneous assignments to Related Funds). If the Assignee is
not incorporated under the laws of the United States of America or a state
thereof, it shall deliver to the Borrower and the Administrative Agent
certification as to exemption from deduction or withholding of any United States
federal income taxes in accordance with Section 8.4.
(d) Any Bank (each, a "Designating Lender") may at any time
designate one Designated Lender to fund Money Market Loans on behalf of such
Designating Lender subject to the terms of this Section 9.6(d) and the
provisions in Section 9.6(b) and (c) shall not apply to such designation. No
Bank may designate more than one (1) Designated Lender. The parties to each such
designation shall execute and deliver to the Administrative Agent for its
acceptance a Designation Agreement. Upon such receipt of an appropriately
completed Designation Agreement executed by a Designating Lender and a designee
representing that it is a Designated Lender, the Administrative Agent will
accept such Designation Agreement and will give prompt notice thereof to the
Borrower, whereupon, (i) the Borrower shall execute and deliver to the
Designating Bank a Designated Lender Note payable to the order of the Designated
Lender, (ii) from and after the effective date specified in the Designation
Agreement, the Designated Lender shall become a party to this Agreement with a
right (subject to the provisions of Section 2.3(b)) to make Money Market Loans
on behalf of its Designating Lender pursuant to Section 2.3 after the Borrower
has accepted a Money Market Loan (or portion thereof) of the Designating Lender,
and (iii) the Designated Lender shall not be required to make payments with
respect to any obligations in this Agreement except to the extent of excess cash
flow of such Designated Lender which is not otherwise required to repay
obligations of such Designated Lender which are then due and payable; provided,
however, that regardless of such designation and assumption by the Designated
Lender, the Designating Lender shall be and remain obligated to the Borrower and
the Banks
120
for each and every of the obligations of the Designating Lender and its related
Designated Lender with respect to this Agreement, including, without limitation,
any indemnification obligations under Section 7.6 hereof and any sums otherwise
payable to the Borrower by the Designated Lender. Each Designating Lender shall
serve as the administrative agent of the Designated Lender and shall on behalf
of, and to the exclusion of, the Designated Lender: (i) receive any and all
payments made for the benefit of the Designated Lender and (ii) give and receive
all communications and notices and take all actions hereunder, including,
without limitation, votes, approvals, waivers, consents and amendments under or
relating to this Agreement and the other Loan Documents. Any such notice,
communication, vote, approval, waiver, consent or amendment shall be signed by
the Designating Lender as administrative agent for the Designated Lender and
shall not be signed by the Designated Lender on its own behalf and shall be
binding upon the Designated Lender to the same extent as if signed by the
Designated Lender on its own behalf. The Borrower, the Administrative Agent, and
the Banks may rely thereon with out any requirement that the Designated Lender
sign or acknowledge the same. No Designated Lender may assign or transfer all or
any portion of its interest hereunder or under any other Loan Document, other
than assignments to the Designating Lender which originally designated such
Designated Lender or otherwise in accordance with the provisions of Section
9.6(b) and (c).
(e) Any Bank may at any time assign all or any portion of its
rights under this Agreement and its Note and the Letter(s) of Credit
participated in by such Bank or, in the case of the Fronting Bank, issued by it,
to a Federal Reserve Bank, and any Bank which is a fund that invests in bank
loans may pledge all or any portion of its Note or Loans to a transferee in
support of its obligations to such transferee. No such assignment shall release
the transferor Bank from its obligations hereunder.
(f) No Assignee, Participant or other transferee of any Bank's
rights shall be entitled to receive any greater payment under Section 8.3 or 8.4
than such Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Borrower's prior written
consent or by reason of the provi-
121
sions of Section 8.2, 8.3 or 8.4 requiring such Bank to designate a different
Applicable Lending Office under certain circumstances or at a time when the
circumstances giving rise to such greater payment did not exist.
(g) The Administrative Agent shall maintain at its address
referred to on the signature pages hereof a copy of each Assignment and
Assumption Agreement delivered to and accepted by it and a register (the
"Register") for the recordation of the names and addresses of the Banks, the
Commitment of, and the principal amount of the Loans under the Commitments owing
to, each Bank from time to time and whether such Bank is an original Bank or the
assignee of another Bank pursuant to an Assignment and Assumption Agreement. The
entries in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower and each of its Subsidiaries, the Administra
tive Agent and the other Banks may treat each Person whose name is recorded in
the Register as a Bank hereunder for all purposes of this Agreement and the Loan
Documents. The Register shall be available for inspection by the Borrower or any
Bank at any reasonable time and from time to time upon reasonable prior notice.
No assignment pursuant to this Section 9.6 will be effective unless and until it
is recorded in the Register.
Section 9.7. Governing Law; Submission to Jurisdiction.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
(b) Any legal action or proceeding with respect to this
Agreement or any other Loan Document and any action for enforcement of any
judgment in respect thereof may be brought in the courts of the State of New
York or of the United States of America for the Southern District of New York,
and, by execution and delivery of this Agreement, the Borrower hereby accepts
for itself and in respect of its property, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts and appellate courts
122
from any thereof. The Borrower irrevocably consents to the service of process
out of any of the aforementioned courts in any such action or proceeding by the
hand delivery, or mailing of copies thereof by registered or certified mail,
postage prepaid, to the Borrower at its address set forth below. The Borrower
hereby irrevocably waives any objection which it may now or hereafter have to
the laying of venue of any of the aforesaid actions or proceedings arising out
of or in connection with this Agreement or any other Loan Document brought in
the courts referred to above and hereby further irrevocably waives and agrees
not to plead or claim in any such court that any such action or proceeding
brought in any such court has been brought in an inconvenient forum. Nothing
herein shall affect the right of the Administrative Agent, any Bank or any
holder of a Note to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against the Borrower in any
other jurisdiction.
Section 9.8. Marshaling; Recapture. Neither the Administrative
Agent nor any Bank shall be under any obligation to marshal any assets in favor
of the Borrower or any other party or against or in payment of any or all of the
Obligations. To the extent any Bank receives any payment by or on behalf of the
Borrower, which payment or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid to
the Borrower or its estate, trustee, receiver, custodian or any other party
under any bankruptcy law, state or federal law, common law or equitable cause,
then to the extent of such payment or repayment, the Obligation or part thereof
which has been paid, reduced or satisfied by the amount so repaid shall be
reinstated by the amount so repaid and shall be included within the liabilities
of the Borrower to such Bank as of the date such initial payment, reduction or
satisfaction occurred.
Section 9.9. Counterparts; Integration; Effectiveness. This
Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument. This Agreement constitutes the entire agreement and
understanding among the parties hereto and supersedes any and all prior
agreements and understandings, oral or written, relating to the subject matter
123
hereof. This Agreement shall become effective upon receipt by the Administrative
Agent of counterparts hereof signed by each of the parties hereto (or, in the
case of any party as to which an executed counterpart shall not have been
received, receipt by the Administrative Agent in form satisfactory to it of
telegraphic, telex or other written confirmation from such party of execution of
a counterpart hereof by such party).
Section 9.10. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE
Administrative Agent AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 9.11. Survival. All indemnities set forth herein
shall survive the execution and delivery of this Agreement and the other Loan
Documents and the making and repayment of the Loans hereunder.
Section 9.12. Domicile of Loans. Subject to the provisions of
Article VIII, each Bank may transfer and carry its Loans at, to or for the
account of any domestic or foreign branch office, subsidiary or affiliate of
such Bank.
Section 9.13. Limitation of Liability. No claim may be made
by the Borrower or any other Person against the Administrative Agent or any Bank
or the affiliates, directors, officers, employees, attorneys or agent of any of
them for any consequential or punitive damages in respect of any claim for
breach of contract or any other theory of liability arising out of or related to
the trans actions contemplated by this Agreement or by the other Loan Documents,
or any act, omission or event occurring in connection therewith; and the
Borrower hereby waives, releases and agrees not to xxx upon any claim for any
such damages, whether or not accrued and whether or not known or suspected to
exist in its favor.
Section 9.14. No Bankruptcy Proceedings. Each of the Borrower,
the Banks, the Administrative Agent and the Co-Agents hereby agrees that it will
not institute against any Designated Lender or join any other Person in
instituting against any Designated Lender any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding under any federal or state
bankruptcy or similar law, until the later to occur of (i) one year and one day
after the payment in full of the latest maturing commercial paper note issued by
such Designated Lender and (ii) the Maturity Date.
124
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
MEDITRUST CORPORATION, a Delaware
corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
Xxxxx 000
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Telephone Number: 000-000-0000
Telecopy Number: 000-000-0000
Attention: President
Commitments:
$215,000,000 Tranche A XXXXXX GUARANTY TRUST COMPANY
$107,500,000 Tranche B OF NEW YORK, as a Bank and as
$148,750,000 Tranche C Administrative Agent
$140,000,000 Tranche D
By: /s/ Xxxxxxx X. X'Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. X'Xxxxxxx
Title: Vice President
Commitments:
$215,000,000 Tranche A BANKERS TRUST COMPANY, as a Bank
$107,500,000 Tranche B and as Syndication Agent
$ 5,000,000 Tranche C
$120,000,000 Tranche D
By: /s/ G. Xxxxxx Xxxxx
-------------------------------------
Name: G. Xxxxxx Xxxxx
Title: Vice President
Commitments:
$215,000,000 Tranche A FLEET NATIONAL BANK, as a Bank and
$107,500,000 Tranche B as Co-Documentation Agent
$ 5,000,000 Tranche C
$120,000,000 Tranche D
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
Commitments:
$215,000,000 Tranche A BANKBOSTON, N.A., as a Bank and as
$107,500,000 Tranche B Co-Documentation Agent
5,000,000 Tranche C
$120,000,000 Tranche D
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
Commitments:
$100,000,000 Tranche A NATIONSBANK, N.A., as a Bank
$50,000,000 Tranche B
By: /s/ X. Xxxxx Singhof
---------------------------------------
Name: X. Xxxxx Singhof
Title: Senior Vice President
Commitments:
$33,300,000 Tranche A VIA BANQUE, as a Bank
$16,700,000 Tranche B
By: /s/ X.X. Xxxx
-------------------------------------
Name: X.X. Xxxx
Title: DGA
Commitments:
$6,700,000 Tranche A OAK BROOK BANK, as a Bank
$3,300,000 Tranche B
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
Commitments:
$30,000,000 Tranche C PARIBAS CAPITAL FUNDING LLC, as a
Bank
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Director
Commitments:
$25,000,000 Tranche C THE TRAVELERS INSURANCE COMPANY,
as a Bank
By: /s/ X.X. Xxxxxx
---------------------------------------
Name: X.X. Xxxxxx
Title: Second Vice President
Commitments:
$21,250,000 Tranche C TORONTO DOMINION (TEXAS), INC., as
a Bank
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Commitments:
$10,000,000 Tranche C CANADIAN IMPERIAL BANK OF COMMERCE, as
a Bank
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
Total Commitments
$2,250,000,000.00
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative
Agent
By: /s/ Xxxxxxx X. X'Xxxxxxx
------------------------------------
Name: Xxxxxxx X. X'Xxxxxxx
Title: Vice President
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X'Xxxxxxx
Telephone number: (000) 000-0000
Telecopy number: (000) 000-0000
Domestic and Euro-Currency
Lending Office:
Nassau, Bahamas Office
c/o X.X. Xxxxxx Services Inc.
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx Lame
Telecopy number: (000) 000-0000
EXHIBIT A-1
TRANCHE A NOTE
$ ______________ New York, New York
July__, 1998
For value received, MEDITRUST CORPORATION, a Delaware
corporation (the "Borrower") promises to pay to the order of _______________
(the "Bank"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Tranche A Loan made by the Bank to the Borrower
pursuant to the Credit Agreement referred to below on the Maturity Date. The
Borrower promises to pay interest on the unpaid principal amount of each such
Tranche A Loan on the dates and at the rate or rates provided for in the Credit
Agreement. All such payments of principal and interest shall be made in lawful
money of the United States in Federal or other immediately available funds at
the office of Administrative Agent under the Credit Agreement (as defined
below).
All Tranche A Loans made by the Bank, the respective types and
maturities thereof and all repayments of the principal thereof shall be recorded
by the Bank and, if the Bank so elects in connection with any transfer or
enforcement hereof, appropriate notations to evidence the foregoing information
with respect to each such Tranche A Loan then outstanding may be endorsed by the
Bank on the schedule attached hereto, or on a continuation of such schedule
attached to and made a part hereof; provided that the failure of the Bank to
make any such recordation or endorsement shall not affect the obligations of the
Borrower hereunder or under the Credit Agreement.
This Note is one of the Tranche A Notes referred to in the
Credit Agreement, dated as of July , 1998, among the Borrower, the Banks party
thereto, and Xxxxxx Guaranty Trust Company of New York, as Administrative Agent
(as the same may be amended from time to time, the "Credit Agreement"). Terms
defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
MEDITRUST CORPORATION, a Delaware
corporation
By: ________________________________
Name:
Title:
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
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Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
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EXHIBIT X-0
XXXXXXX X NOTE
$ ______________ New York, New York
__July___, 1998
For value received, MEDITRUST CORPORATION, a Delaware
corporation (the "Borrower") promises to pay to the order of _______________
(the "Bank"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Tranche B Loan made by the Bank to the Borrower
pursuant to the Credit Agreement referred to below on the Maturity Date. The
Borrower promises to pay interest on the unpaid principal amount of each such
Tranche B Loan on the dates and at the rate or rates provided for in the Credit
Agreement. All such payments of principal and interest shall be made in lawful
money of the United States in Federal or other immediately available funds at
the office of Administrative Agent under the Credit Agreement (as defined
below).
All Tranche B Loans made by the Bank, the respective types and
maturities thereof and all repayments of the principal thereof shall be recorded
by the Bank and, if the Bank so elects in connection with any transfer or
enforcement hereof, appropriate notations to evidence the foregoing information
with respect to each such Tranche B Loan then outstanding may be endorsed by the
Bank on the schedule attached hereto, or on a continuation of such schedule
attached to and made a part hereof; provided that the failure of the Bank to
make any such recordation or endorsement shall not affect the obligations of the
Borrower hereunder or under the Credit Agreement.
This Note is one of the Tranche B Notes referred to in the
Credit Agreement, dated as of July , 1998, among the Borrower, the Banks party
thereto, and Xxxxxx Guaranty Trust Company of New York, as Administrative Agent
(as the same may be amended from time to time, the "Credit Agreement"). Terms
defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
MEDITRUST CORPORATION, a Delaware corporation
By: _________________________________________
Name:
Title:
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
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Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
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EXHIBIT A-3
TRANCHE C NOTE
$ ______________ New York, New York
________, 1998
For value received, MEDITRUST CORPORATION, a Delaware
corporation (the "Borrower") promises to pay to the order of _______________
(the "Bank"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Tranche C Loan made by the Bank to the Borrower
pursuant to the Credit Agreement referred to below on the Maturity Date. The
Borrower promises to pay interest on the unpaid principal amount of each such
Tranche C Loan on the dates and at the rate or rates provided for in the Credit
Agreement. All such payments of principal and interest shall be made in lawful
money of the United States in Federal or other immediately available funds at
the office of Administrative Agent under the Credit Agreement (as defined
below).
All Tranche C Loans made by the Bank, the respective types and
maturities thereof and all repayments of the principal thereof shall be recorded
by the Bank and, if the Bank so elects in connection with any transfer or
enforcement hereof, appropriate notations to evidence the foregoing information
with respect to each such Tranche C Loan then outstanding may be endorsed by the
Bank on the schedule attached hereto, or on a continuation of such schedule
attached to and made a part hereof; provided that the failure of the Bank to
make any such recordation or endorsement shall not affect the obligations of the
Borrower hereunder or under the Credit Agreement.
This Note is one of the Tranche C Notes referred to in the
Credit Agreement, dated as of July , 1998, among the Borrower, the Banks party
thereto, and Xxxxxx Guaranty Trust Company of New York, as Administrative Agent
(as the same may be amended from time to time, the "Credit Agreement"). Terms
defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
MEDITRUST CORPORATION, a Delaware corporation
By: _________________________________________
Name:
Title:
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
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Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
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EXHIBIT A-4
TRANCHE D NOTE
$______________ New York, New York
__July___, 1998
For value received, MEDITRUST CORPORATION, a Delaware
corporation (the "Borrower") promises to pay to the order of _______________
(the "Bank"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Tranche D Loan made by the Bank to the Borrower
pursuant to the Credit Agreement referred to below on the Maturity Date. The
Borrower promises to pay interest on the unpaid principal amount of each such
Tranche D Loan on the dates and at the rate or rates provided for in the Credit
Agreement. All such payments of principal and interest shall be made in lawful
money of the United States in Federal or other immediately available funds at
the office of Administrative Agent under the Credit Agreement (as defined
below).
All Tranche D Loans made by the Bank, the respective types and
maturities thereof and all repayments of the principal thereof shall be recorded
by the Bank and, if the Bank so elects in connection with any transfer or
enforcement hereof, appropriate notations to evidence the foregoing information
with respect to each such Tranche D Loan then outstanding may be endorsed by the
Bank on the schedule attached hereto, or on a continuation of such schedule
attached to and made a part hereof; provided that the failure of the Bank to
make any such recordation or endorsement shall not affect the obligations of the
Borrower hereunder or under the Credit Agreement.
This Note is one of the Tranche D Notes referred to in the
Credit Agreement, dated as of July , 1998, among the Borrower, the Banks party
thereto, and Xxxxxx Guaranty Trust Company of New York, as Administrative Agent
(as the same may be amended from time to time, the "Credit Agreement"). Terms
defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
MEDITRUST CORPORATION, a Delaware corporation
By: _________________________________________
Name:
Title:
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
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Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
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EXHIBIT A-5
DESIGNATED LENDER NOTE
$______________ New York, New York
________, 1998
For value received, MEDITRUST CORPORATION, a Delaware
corporation (the "Borrower") promises to pay to the order of _______________
(the "Bank"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Tranche A Loan made by the Bank to the Borrower
pursuant to the Credit Agreement referred to below on the Maturity Date. The
Borrower promises to pay interest on the unpaid principal amount of each such
Tranche A Loan on the dates and at the rate or rates provided for in the Credit
Agreement. All such payments of principal and interest shall be made in lawful
money of the United States in Federal or other immediately available funds at
the office of Administrative Agent under the Credit Agreement (as defined
below).
All Tranche A Loans made by the Bank, the respective types and
maturities thereof and all repayments of the principal thereof shall be recorded
by the Bank and, if the Bank so elects in connection with any transfer or
enforcement hereof, appropriate notations to evidence the foregoing information
with respect to each such Tranche A Loan then outstanding may be endorsed by the
Bank on the schedule attached hereto, or on a continuation of such schedule
attached to and made a part hereof; provided that the failure of the Bank to
make any such recordation or endorsement shall not affect the obligations of the
Borrower hereunder or under the Credit Agreement.
This Note is one of the Designated Lender Notes referred to in
the Credit Agreement, dated as of July , 1998, among the Borrower, the Banks
party thereto, and Xxxxxx Guaranty Trust Company of New York, as Administrative
Agent (as the same may be amended from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
MEDITRUST CORPORATION, a Delaware corporation
By: _________________________________________
Name:
Title:
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
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Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
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EXHIBIT B
Unencumbered Asset Pool Properties
EXHIBIT C
FORM OF ASSIGNMENT AND ASSUMPTION
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of __________, 199_ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), MEDITRUST CORPORATION (the "Borrower")
and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Administrative Agent (the
"Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the
"Assignment") relates to the Credit Agreement dated as of ________ __, 199_ (the
"Loan Agreement") among the Borrower, the Assignor and the other Banks party
thereto, as Banks, and the Agent;
WHEREAS, as provided under the Loan Agreement, the Assignor
has a Commitment to make Loans to the Borrower in an aggregate principal amount
at any time outstanding not to exceed $__________;
WHEREAS, Loans made to the Borrower by the Assignor under the
Loan Agreement in the aggregate principal amount of $____________ are
outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all
of the rights of the Assignor under the Loan Agreement in respect of a portion
of its Commitment thereunder in an amount equal to $__________ (the "Assigned
Amount"), together with a corresponding portion of its outstanding Loans, and
the Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not
otherwise defined herein shall have the respective meanings set forth
in the Loan Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells
to the Assignee all of the rights of the Assignor under the Loan Agreement to
the extent of the Assigned Amount, and the Assignee hereby accepts such
assignment from the Assignor and assumes all of the obligations of the Assignor
under the Loan Agreement to the extent of the Assigned Amount, including the
purchase from the Assignor of the corresponding portion of the principal amount
of the Loans made by the Assignor outstanding at the date hereof. Upon the
execution and delivery hereof by the Assignor, the Assignee, the Borrower and
the Agent and the payment of the amounts specified in Section 3 required to be
paid on the date hereof (i) the Assignee shall, as of the date hereof, succeed
to the rights and be obligated to perform the obligations of a Bank under the
Loan Agreement with a Commitment in an amount equal to the Assigned Amount, and
(ii) the Commitment of the Assignor shall, as of the date hereof, be reduced by
a like amount and the Assignor released from its obligations under the Loan
Agreement
to the extent such obligations have been assumed by the Assignee. The assignment
provided for herein shall be without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and
sale contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on
the date hereof in Federal funds the amount heretofore agreed between them.1 It
is understood that fees accrued to the date hereof are for the account of the
Assignor and such fees accruing from and including the date hereof are for the
account of the Assignee. Each of the Assignor and the Assignee hereby agrees
that if it receives any amount under the Loan Agreement which is for the account
of the other party hereto, it shall receive the same for the account of such
other party to the extent of such other party's interest therein and shall
promptly pay the same to such other party.
SECTION 4. Consent of the Borrower and the Agent. This
Agreement is conditioned upon the written consent of the Borrower and the
consent of the Agent pursuant to section 9.6(c) of the Loan Agreement. The
execution of this Agreement by the Borrower and the Agent is evidence of the
required consents. Pursuant to Section 9.6(c) the Borrower agrees to execute and
deliver a Note payable to the order of the Assignee to evidence the assignment
and assumption provided for herein.
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the
Borrower, or the validity and enforceability of the obligations of the Borrower
in respect of the Loan Agreement or any Note, except that it hereby represents
and warrants that it own the Commitments and the Loans being sold hereunder free
and clear of all adverse claims. The Assignee acknowledges that it has,
independently and without reliance on the Assignor, and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and will continue to be responsible for
making its own independent appraisal of the business, affairs and financial
condition of the Borrower.
SECTION 6. Governing Law. This Agreement shall be governed
by and construed in accordance with the external laws of the State of
New York
--------
(1) The amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee, net of any
portion of any upfront fee to be paid by the Assignor to the Assignee. It
may be preferable in an appropriate case to specify these amounts
generically or by formula rather than as a fixed sum.
SECTION 7. Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By: _________________________________________
Name:
Title:
[ASSIGNEE]
By: _________________________________________
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK
By: _________________________________________
Name:
Title:
CONSENTED TO:
MEDITRUST CORPORATION
By: ____________________________
Name:
Title:
EXHIBIT D
Form of Money Market Quote Request
----------------------------------
[Date]
To: Xxxxxx Guaranty Trust Company of New York (the "Administrative Agent")
From: Meditrust Corporation
Re: Credit Agreement (the "Credit Agreement") dated as of July 15, 1998
among Meditrust Corporation, the Banks parties thereto and the
Administrative Agent
We hereby give notice pursuant to Section 2.3 of the Credit
Agreement that we request Money Market Quotes for the following proposed Money
Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount(2) Interest Period(3)
$
Such Money Market Quotes should offer a Money Market
[Margin] [Absolute Rate]. [The applicable base rate is the London
Interbank Offered Rate.]
The funding of Money Market Loans made in connection with this
Money Market Quote Request [may/may not] be made by Designated Lenders.
Terms used herein have the meanings assigned to them in the
Credit Agreement.
Meditrust Corporation
By: ________________________________________
Name:
Title:
--------
(2) Amount must be $10,000,000 or a larger multiple of $500,000.
(3) Not less than one month (LIBOR Auction) or not less than 30 days (Absolute
Rate Auction), subject to the provisions of the definition of Interest Period.
EXHIBIT E
Form of Invitation for Money Market Quotes
------------------------------------------
To: [Name of Bank]
Re: Invitation for Money Market Quotes to Meditrust Corporation (the
"Borrower")
Pursuant to Section 2.3 of the Credit Agreement dated as of
July 15, 1998 among Meditrust Corporation, the Banks parties thereto and the
undersigned, as Administrative Agent, we are pleased on behalf of the Borrower
to invite you to submit Money Market Quotes to the Borrower for the following
proposed Money Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
$
Such Money Market Quotes should offer a Money Market
[Margin] [Absolute Rate]. [The applicable base rate is the London
Interbank Offered Rate.]
Please respond to this invitation by no later than 10:00 A.M.
(New York City time) on [date].
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
By ____________________________________
Authorized Officer
EXHIBIT F
Form of Money Market Quote
--------------------------
To: Xxxxxx Guaranty Trust Company of New York, as Administrative
Agent
Re: Money Market Quote to Meditrust Corporation (the "Borrower")
In response to your invitation on behalf of the Borrower dated
_____________, 19__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank:
-----------------------------
3. Date of Borrowing: ____________________*
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
Principal Interest Money Market
Amount** Period*** [Margin****] [Absolute Rate*****]
--------- --------- ------------ --------------------
$
$
[Provided, that the aggregate principal amount of Money Market Loans
for which the above offers may be accepted shall not exceed
$____________.]**
We understand and agree that the offer(s) set forth
above, subject to the satisfaction of the applicable conditions set
forth in the Credit Agreement dated as of July 15, 1998 among Meditrust
Corporation, the Banks parties thereto and yourselves, as
Administrative Agent, irrevocably obligates us to make the Money Market
Loan(s) for which any offer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated:_______________ By: ________________________________________
Authorized Officer
EXHIBIT G
FORM OF DESIGNATION AGREEMENT
-----------------------------
Dated _____________, 199___
Reference is made to that certain Credit Agreement dated as of July 17,
1998 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement") among MEDITRUST CORPORATION, BANKERS TRUST COMPANY, as
Syndication Agent, BANKBOSTON, N.A., as Co-Documentation Agent, FLEET NATIONAL
BANK, as Co-Documentation Agent, and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
(the "Administrative Agent"), as Administrative Agent. Terms defined in the
Credit Agreement are used herein with the same meaning.
[NAME OF DESIGNOR] (the "Designor"), [NAME OF DESIGNEE] (the
"Designee"), the Administrative Agent and Borrower agree as follows:
1. The Designor hereby designates the Designee, and the Designee hereby
accepts such designation, to have a right to make Money Market Loans pursuant to
Section 2.3 of the Credit Agreement. Any assignment by Designor to Designee of
its rights to make a Money Market Loan pursuant to such Article III shall be
effective at the time of the funding of such Money Market Loan and not before
such time.
2. Except as set forth in Section 7 below, the Designor makes no
representation or warranty and assumes no responsibility pursuant to this
Designation Agreement with respect to (a) any statements, warranties or
representations made in or in connection with any Loan Document or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of any Loan Document or any other instrument and document furnished pursuant
thereto and (b) the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under any Loan Document or
any other instrument or document furnished pursuant thereto.
3. The Designee (a) confirms that it has received a copy of each Loan
Document, together with copies of the financial statements referred to in
Section 5.1 of the Credit Agreement and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into this Designation Agreement; (b) agrees that it will independently and
without reliance upon the Administrative Agent, the Designor or any other Bank
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under any Loan Document; (c) confirms that it is a Designated Lender; (d)
appoints and authorizes the Administrative Agent to take such action as agent
on its behalf and to exercise such powers and discretion under any Loan Document
as are delegated to the Administrative Agent by the terms thereof, together with
such powers and discretion as are reasonably incidental thereto; and (e) agrees
to be bound by each and every provision of each Loan Document and further agrees
that it will perform in accordance with their terms all of the obligations which
by the terms of any Loan Document are required to be performed by it as a Bank,
subject to Section 9.6(d) of the Credit Agreement.
4. The Designee hereby appoints Designor as Designee's agent and
attorney in fact, and grants to Designor an irrevocable power of attorney, to
receive payments made for the benefit of Designee under the Credit Agreement, to
deliver and receive all communications and notices under the Credit Agreement
and other Loan Documents and to exercise on Designee's behalf all rights to
vote and to grant and make approvals, waivers, consents of amendments to or
under the Credit Agreement or other Loan Documents, subject to Section 9.5 of
the Credit Agreement. Any document executed by the Designor on the Designee's
behalf in connection with the Credit Agreement or other Loan Documents shall be
binding on the Designee. The Borrower, the Administrative Agent and each of the
Banks may rely on and are beneficiaries of the preceding provisions.
5. Following the execution of this Designation Agreement by the
Designor and its Designee, it will be delivered to the Administrative Agent for
recording by the Administrative Agent. The effective date for this Designation
Agreement (the "Effective Date") shall be the date of receipt hereof by the
Administrative Agent, unless otherwise specified on the signature page thereto.
6. The Administrative Agent hereby agrees that it will not institute
against any Designated Lender or join any other Person in instituting against
any Designated Lender any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceeding under any federal or state bankruptcy or similar law,
until the later to occur of (i) one year and one day after the payment in full
of the latest maturing commercial paper note issued by such Designated Lender
and (ii) the Maturity Date.
7. The Designor unconditionally agrees to pay or reimburse the Designee
and save the Designee harmless against all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed or asserted by any of the
parties to the Loan Documents against the Designee (except as set forth in
Section 8 below), in its capacity as such, in any way relating to or arising out
of this Agreement or any other Loan Documents or any action taken or omitted by
the Designee hereunder or thereunder, provided that the Designor shall not be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements if the
same results from the Designee's gross negligence or willful misconduct.
8. Upon such acceptance and recording by the Administrative Agent, as
of the Effective Date, the Designee shall be a party to the Credit Agreement
with a right (subject to the provisions of Section 2.3(b)) to make Money Market
Loans as a Bank pursuant to Section 2.3 of the Credit Agreement and the rights
and obligations of a Bank related thereto; provided, however, that the Designee
shall not be required to make payments with respect to such obligations except
to the extent of excess cash flow of such Designee which is not otherwise
required to repay obligations of such Designated Lender which are then due and
payable. Notwithstanding the foregoing, the Designor, as administrative agent
for the Designee, shall be and remain obligated to the Borrower, the Co-Agents
and the Banks for each and every of the obligations of the Designee and its
Designor with respect to the Credit Agreement, including, without limitation,
any indemnification obligations
under Section 7.6 of the Credit Agreement and any sums otherwise payable to the
Borrower by the Designee.
9. This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
10. This Designation Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Designation Agreement by facsimile
transmission shall be effective as delivery of a manually executed counter part
of this Designation Agreement.
IN WITNESS WHEREOF, the Designor and the Designee, intending to be
legally bound, have caused this Designation Agreement to be executed by their
officers thereunto duly authorized as of the date first above written.
Effective Date: ________________________,
199__
[NAME OF DESIGNOR], as
Designor
By: _____________________________________
Title: __________________________________
[NAME OF DESIGNEE] as
Designee
By: _____________________________________
Title: __________________________________
Applicable Lending Office
(and address for notices):
[ADDRESS]
Accepted this _____ day
of __________, 19
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Administrative Agent
By: __________________________
Title: _______________________
Exhibit H
Intentionally Deleted
Exhibit I
Existing Credit Agreements
1. Revolving Credit Agreement, by and between the Borrower and Via Banque, in
the principal amount of $50,000,000.
2. Revolving Credit Agreement, by and among the Borrower, Fleet National Bank
and other lenders, in the principal amount of $300,000,000.
3. Credit Agreement, by and among La Quinta Inns, Inc., NationsBank of Texas,
N.A. and other lenders, in the principal amount of $325,000,000.
$. Credit Agreement, by and among La Quinta Inns, Inc., NationsBank of Texas,
N.A. and other lenders, in the principal amount of $75,000,000.
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I
DEFINITIONS
Section 1.1. Definitions........................................................................... 1
Section 1.2. Accounting Terms and Determinations...................................................34
Section 1.3. Types of Borrowings...................................................................35
ARTICLE II
THE CREDITS
Section 2.1. Commitments to Lend...................................................................35
Section 2.2. Notice Of Committed Borrowing.........................................................37
Section 2.3. Money Market Borrowings...............................................................40
Section 2.4. Notice to Banks; Funding of Loans.....................................................45
Section 2.5. Notes.................................................................................47
Section 2.6. Maturity of Loans.....................................................................48
Section 2.7. Interest Rates........................................................................48
Section 2.8. Fees..................................................................................50
Section 2.9. Mandatory Termination.................................................................53
Section 2.10. Mandatory Prepayment..................................................................54
Section 2.11. Optional Prepayments..................................................................56
Section 2.12. General Provisions as to Payments.....................................................58
Section 2.13. Funding Losses........................................................................59
Section 2.14. Computation of Interest and Fees......................................................59
Section 2.15. Method of Electing Interest Rates.....................................................60
Section 2.16. Letters of Credit.....................................................................61
Section 2.17. Letter of Credit Usage Absolute.......................................................65
ARTICLE III
CONDITIONS
Section 3.1. Closing...............................................................................67
Section 3.2. Borrowings............................................................................69
Section 3.3 Security Conversion...................................................................71
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1. Existence and Power...................................................................72
Section 4.2. Power and Authority...................................................................72
Section 4.3. No Violation..........................................................................73
Section 4.4. Financial Information.................................................................73
Section 4.5. Litigation............................................................................76
Section 4.6. Compliance with ERISA.................................................................76
Section 4.7. Environmental Compliance..............................................................75
Section 4.8. Taxes.................................................................................77
Section 4.9. Full Disclosure.......................................................................77
i
Section 4.10. Solvency..............................................................................77
Section 4.11. Use of Proceeds; Margin Regulations...................................................77
Section 4.12. Governmental Approvals................................................................78
Section 4.13. Investment Company Act; Public Utility
Holding Company Act...................................................................78
Section 4.14. Closing Date Transactions.............................................................78
Section 4.15. Representations and Warranties in Loan
Documents.............................................................................78
Section 4.16. Patents, Trademarks, etc..............................................................79
Section 4.17. No Default............................................................................79
Section 4.18. Licenses, etc.........................................................................79
Section 4.19. Compliance With Law...................................................................79
Section 4.20. No Burdensome Restrictions............................................................80
Section 4.21. Brokers' Fees.........................................................................80
Section 4.22. Labor Matters.........................................................................80
Section 4.23. Organizational Documents..............................................................80
Section 4.24. Principal Offices.....................................................................80
Section 4.25. REIT Status...........................................................................80
Section 4.26. Ownership of Property.................................................................81
Section 4.27. Year 2000 Compliance..................................................................81
Section 4.28. Insurance.............................................................................81
ARTICLE V
AFFIRMATIVE AND NEGATIVE COVENANTS
Section 5.1. Information...........................................................................81
Section 5.2. Payment of Obligations................................................................85
Section 5.3. Maintenance of Property; Insurance....................................................86
Section 5.4. Conduct of Business...................................................................86
Section 5.5. Compliance with Laws..................................................................86
Section 5.6. Inspection of Property, Books and
Records...............................................................................87
Section 5.7. Existence.............................................................................87
Section 5.8. Financial Covenants...................................................................87
Section 5.9. Restriction on Fundamental Changes;
Operation and Control.................................................................89
Section 5.10. Changes in Business...................................................................90
Section 5.11. Fiscal Year; Fiscal Quarter...........................................................90
Section 5.12. Margin Stock..........................................................................90
Section 5.13. Intentionally Omitted.................................................................90
Section 5.14. Interest Rate Protection..............................................................91
Section 5.15. Investments in Unimproved Real Property...............................................91
Section 5.16. Use of Proceeds.......................................................................91
Section 5.17. Borrower Status.......................................................................92
Section 5.18. Limitations on Subsidiary Debt........................................................92
Section 5.19. Negative Pledge.......................................................................92
Section 5.20. Affiliate Transactions................................................................92
Section 5.21. Sale of Unencumbered Asset Pool.......................................................92
Section 5.22. Guarantor Subsidiary..................................................................93
ii
ARTICLE VI
DEFAULTS
Section 6.1. Events of Default.....................................................................93
Section 6.2. Rights and Remedies...................................................................97
Section 6.3. Notice of Default.....................................................................98
Section 6.4. Actions in Respect of Letters of Credit...............................................98
ARTICLE VII
THE Administrative Agent
Section 7.1. Appointment and Authorization........................................................101
Section 7.2. Administrative Agent and Affiliates..................................................101
Section 7.3. Action by Administrative Agent.......................................................101
Section 7.4. Consultation with Experts............................................................101
Section 7.5. Liability of Administrative Agent....................................................101
Section 7.6. Indemnification......................................................................102
Section 7.7. Credit Decision......................................................................102
Section 7.8. Successor Administrative Agent.......................................................103
Section 7.9. Administrative Agent's Fee...........................................................103
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
Section 8.1. Basis for Determining Interest Rate
Inadequate or Unfair.................................................................104
Section 8.2. Illegality...........................................................................104
Section 8.3. Increased Cost and Reduced Return....................................................106
Section 8.4. Taxes................................................................................108
Section 8.5. Base Rate Loans Substituted for Affected
Euro-Dollar Loans....................................................................111
ARTICLE IX
MISCELLANEOUS
Section 9.1. Notices..............................................................................112
Section 9.2. No Waivers...........................................................................113
Section 9.3. Expenses; Indemnification............................................................113
Section 9.4. Sharing of Set-Offs..................................................................115
Section 9.5. Amendments and Waivers...............................................................116
Section 9.6. Successors and Assigns...............................................................117
Section 9.7. Governing Law; Submission to Jurisdiction............................................121
Section 9.8. Marshaling; Recapture................................................................122
Section 9.9. Counterparts; Integration;
Effectiveness........................................................................122
Section 9.10. WAIVER OF JURY TRIAL.................................................................123
Section 9.11. Survival.............................................................................123
Section 9.12. Domicile of Loans....................................................................123
Section 9.13. Limitation of Liability..............................................................123
Section 9.14. No Bankruptcy Proceedings............................................................123
iii
Exhibit A-1 - Form of Tranche A Note
Exhibit A-2 - Form of Tranche B Note
Exhibit A-3 - Form of Tranche C Note
Exhibit A-4 - Form of Tranche D Note
Exhibit A-5 - Designated Lender Note
Exhibit B - Unencumbered Asset Pool Properties
Exhibit C - Assignment and Assumption Agreement
Exhibit D - Form of Money Market Quote Request
Exhibit E - Form of Invitation for Money Market
Quotes
Exhibit F - Form of Money Market Quote
Exhibit G - Form of Designation Agreement
Exhibit H - Intentionally Deleted
Exhibit I - Existing Credit Agreements
Exhibit J - Existing Letters of Credit
Schedule 4.22- Labor Matters
Schedule 5.18- Existing Subsidiary Debt
iv
