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EXHIBIT 10.1
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UNIVERSAL HEALTH REALTY INCOME TRUST
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Dated as of September 27, 1996
by and among
UNIVERSAL HEALTH REALTY INCOME TRUST,
THE FINANCIAL INSTITUTIONS LISTED ON SCHEDULE 1 HERETO
AND
CORESTATES BANK, N.A., AS AGENT
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REVOLVING CREDIT AGREEMENT
TABLE OF CONTENTS
Section PAGE
Section 1. DEFINITIONS ...................................................... 1
Section 2. LOANS ............................................................ 10
Section 2.1. Commitment to Lend ....................................... 10
Section 2.2. Reduction of Commitment Amount ........................... 10
Section 2.3. Notes .................................................... 11
Section 2.4. Requests for Loans ....................................... 11
Section 2.5. Interest on Loans ........................................ 12
Section 2.6. Prepayments .............................................. 12
Section 2.7. Funds for Loans .......................................... 13
Section 2A LETTERS OF CREDIT ................................................ 14
Section 2A.1 Commitment to Issue Letters of Credit .................... 14
Section 2A.2 Requests for Letters of Credit ........................... 14
Section 2A.3 Pro Rata Share, Etc ...................................... 14
Section 2A.4 Banks' Obligation to Fund ................................ 15
Section 2A.5 Reimbursement by the Company ............................. 15
Section 2A.6 Letter of Credit Fees .................................... 15
Section 3. INTEREST; PAYMENTS AND COMPUTATIONS, FEES ........................ 16
Section 3.1. Interest ................................................. 16
Section 3.2. Concerning Interest Periods .............................. 18
Section 3.3. Interest on Overdue Amounts .............................. 19
Section 3.4. Payments ................................................. 19
Section 3.5. Computations ............................................. 19
Section 3.6. Commitment Fee ........................................... 19
Section 3.7. Closing Fees ............................................. 20
Section 3.8. Additional Amounts Payable on Account of Credit Facilities 20
Section 4. REPRESENTATIONS AND WARRANTIES ................................... 20
Section 4.1. Corporate Existence ...................................... 21
Section 4.2. Subsidiaries ............................................. 21
Section 4.3. Authority, Etc ........................................... 21
Section 4.4. Binding Effect of Documents, Etc ......................... 22
Section 4.5. No Events of Default, Etc ................................ 22
Section 4.6. Title to Properties; Leases .............................. 22
Section 4.7. Financial Statements ..................................... 22
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Section PAGE
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Section 4.8. No Material Changes, Full Disclosure, Etc. ....... 22
Section 4.9. Permits; Patents; Copyrights ..................... 23
Section 4.10. Litigation ....................................... 23
Section 4.11. Compliance with Other Instruments, Laws, Etc. .... 23
Section 4.12. Tax Status ....................................... 23
Section 4.13. Holding Company and Investment Company Acts ...... 23
Section 4.14. Absence of Financing Statements, Etc. ............ 24
Section 4.15. Certain Transactions ............................. 24
Section 4.16. Pension Plans .................................... 24
Section 5. EFFECTIVE DATE ............................................ 24
Section 6. CONDITIONS TO LOANS ....................................... 25
Section 6.1. Legality of Transactions ......................... 25
Section 6.2. Representations and Warranties ................... 25
Section 6.3. Performance, Absence of Default, Etc. ............ 26
Section 6.4. Material Adverse Change .......................... 26
Section 6.5. Notice of Borrowing .............................. 26
Section 6.6. Proceedings and Documents ........................ 26
Section 6.7. Governmental Regulation .......................... 26
Section 7. COVENANTS OF THE COMPANY .................................. 26
Section 7.1. Punctual Payment ................................. 26
Section 7.2. Legal Existence, Etc. ............................ 26
Section 7.3. Financial Statements, Etc. ....................... 27
Section 7.4. Health Care Facilities -
Financial Statements, Etc. ....................... 28
Section 7.5. Tangible Net Worth ............................... 28
Section 7.6. Ratio of Total Liabilities to Tangible Net Worth . 29
Section 7.7. Debt Service Coverage Ratio ...................... 29
Section 7.8. Debt to Cash Flow Available for Debt Service ..... 29
Section 7.9. Indebtedness ..................................... 29
Section 7.10. Secured Debt ..................................... 29
Section 7.11. Security Interests and Liens; Negative Pledge .... 30
Section 7.12. Negative Negative Pledge ......................... 30
Section 7.13. Guarantees ....................................... 31
Section 7.14. Notice of Litigation and Judgments ............... 31
Section 7.15. Notice of Defaults ............................... 31
Section 7.16. Notices With Regard to Health Care Operators ..... 31
Section 7.17. Books and Records ................................ 32
Section 7.18. Maintenance of Properties ........................ 32
Section 7.19. Insurance ........................................ 32
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Section PAGE
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Section 7.20. Taxes ........................................... 32
Section 7.21. Compliance with Laws, Contracts, and Licenses ... 32
Section 7.22. Access .......................................... 33
Section 7.23. ERISA Compliance ................................ 33
Section 7.24. Reserves ........................................ 34
Section 7.25. Distributions ................................... 34
Section 7.26. Investments ..................................... 34
Section 7.27. Acquisitions .................................... 34
Section 7.28. Mortgage Loans .................................. 35
Section 7.29. Construction Loans .............................. 35
Section 7.30. Environmental Audits ............................ 35
Section 7.31. Merger, Consolidation and Disposition of Assets . 36
Section 7.32. Sale and Leaseback .............................. 36
Section 7.33. Use of Proceeds ................................. 36
Section 7.34. Further Assurances .............................. 36
Section 8. EVENTS OF DEFAULT; ACCELERATION ........................... 36
Section 9. SETOFF; SHARING ........................................... 39
Section 10. THE AGENT ................................................ 39
Section 10.1. Appointment of Agent, Powers and Immunities ..... 39
Section 10.2. Reliance by Agent ............................... 40
Section 10.3. Indemnification ................................. 40
Section 10.4. Reimbursement ................................... 41
Section 10.5. Non-Reliance on Agent and Other Banks ........... 41
Section 10.6. Payments ........................................ 41
Section 10.7. Holders of Notes ................................ 42
Section 10.8. Agent as Bank ................................... 42
Section 10.9. Resignation of Agent ............................ 42
Section 10.10. Independent Obligations, Actions ................ 42
Section 11. EXPENSES ................................................. 42
Section 12. INDEMNIFICATION .......................................... 43
Section 13. SURVIVAL OF COVENANTS, ETC ............................... 43
Section 14. PARTIES IN INTEREST ...................................... 43
Section 15. NOTICES, ETC ............................................. 44
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Section PAGE
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Section 16. GOVERNING LAW, ETC .......................................... 45
Section 17. ENTIRE AGREEMENT, ETC ....................................... 46
Section 18. WAIVER OF JURY TRIAL ........................................ 46
Section 19. CONSENTS, AMENDMENTS, WAIVERS, ETC .......................... 46
Section 20. SEVERABILITY ................................................ 47
Section 21. ASSIGNMENTS; PARTICIPATIONS ................................. 47
Section 21.1 Assignments and Participations ....................... 47
Section 21.2.Miscellaneous Assignment Provisions .................. 48
Section 21.3.Disclosure ........................................... 48
EXHIBITS AND SCHEDULES
EXHIBIT A Form of Note
EXHIBIT B Title to Properties; Leases; Litigation;
Financing Statements
EXHIBIT C Form of Opinion of Company Counsel
EXHIBIT D Compliance Certificate
EXHIBIT E Form of Notice
SCHEDULE 1 Banks; Commitments; Commitment Percentages
SCHEDULE 2 Applicable Margin and Fees
SCHEDULE 3 Payment Instructions (Section 3.4)
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AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
This AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT is made as of
September 27, 1996 among (i) UNIVERSAL HEALTH REALTY INCOME TRUST, a real estate
investment trust organized under the laws of the State of Maryland and having
its principal place of business at 000 Xxxxx Xxxxx Xxxx, Xxxx xx Xxxxxxx,
Xxxxxxxxxxxx 00000 (the "Company"), (ii) THE FINANCIAL INSTITUTIONS LISTED ON
SCHEDULE 1 HERETO (individually a "Bank" and collectively the "Banks") and (iii)
CORESTATES BANK, N.A., as agent for the Banks (the "Agent").
BACKGROUND
A. The Company, CoreStates Bank, N.A., The First National Bank of
Boston and First Union National Bank, along with CoreStates Bank, N.A., as
agent, entered into a Revolving Credit Agreement, dated as of March 7, 1994,
which was amended by an Amendment No. 1, dated as of May 9, 1996 (as so amended,
the "Original Credit Agreement").
B. The Company now desires to further amend and restate the Original
Credit Agreement and in connection therewith The First National Bank of Boston
is assigning its interests under the Original Credit Agreement to NationsBank,
N.A.
NOW, THEREFORE, intending to be legally bound, the parties hereto
agree that as of (and subject to the occurrence of) the Effective Date, the
Original Credit Agreement shall be amended and restated as follows:
Section 1. DEFINITIONS. The following terms shall have the
meanings set forth in this Section 1 or elsewhere in the provisions of
this Agreement referred to below:
ADJUSTED CASH FLOW AVAILABLE FOR DEBT SERVICE. At any date of
determination, the Cash Flow Available for Debt Service for the two most
recently ended fiscal quarters of the Company multiplied by two. If during such
two-quarter period the Company acquired any Health Care Facilities in conformity
with this Agreement and the Company has delivered to the Agent pro forma
financial statements for such two fiscal quarters which reflect the effect of
such acquisitions(s) and otherwise are in a form and contain such adjustments as
are reasonably satisfactory to the Banks, then for purposes of calculating
Adjusted Cash Flow Available for Debt Service hereunder, Cash Flow Available for
Debt Service for such two fiscal quarters shall be calculated based on such pro
forma consolidated financial statements.
ADJUSTED C/D RATE AMOUNTS. Any portions of the principal amount of
the Loans to the Company as to which the Company has elected pursuant to
Section 3.1 to pay interest based on the Adjusted C/D Rate.
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ADJUSTED C/D RATE. For any Interest Period with respect to Adjusted
C/D Rate Amounts, an interest rate per annum determined by the Agent pursuant to
the following formula:
Adjusted C/D = (Domestic C/D Rate) + Assessment + Applicable Margin
Rate ------------------- Rate
(1.00 - Reserve
Percentage)
The components of the fraction used to calculate the Adjusted C/D Rate shall be
rounded upward, if necessary, to the next higher 1/100 of 1%.
AFFECTED BANK. See Section 3.1(c).
AGENT. See preamble.
AGREEMENT. This Amended and Restated Revolving Credit Agreement,
including the Exhibits and Schedules hereto, as originally executed, or if this
Agreement is amended, varied or supplemented from time to time, as so amended,
varied or supplemented.
APPLICABLE MARGIN. The applicable rate set forth on Schedule 2
hereto, which shall be determined in accordance with Section 2.5.
ASSESSMENT RATE. For any Interest Period with respect to Adjusted
C/D Rate Amounts, the net annual assessment rate (rounded upwards, if necessary,
to the next higher 1/100 of 1%) actually paid by the Agent to the Federal
Deposit Insurance Corporation (or any successor) for such corporation's (or such
successor's) insuring time deposits made in dollars at offices of the Agent in
the United States of America during the most recent period for which such rate
has been determined prior to the commencement of such Interest Period.
BANK CERTIFICATE. A certificate signed by an officer of the Agent or
a Bank, setting forth any additional amount required to be paid by the Company
to the Agent or such Bank, and the computations made by the Agent or such Bank
to determine such additional amount, which shall be submitted by the Agent or
such Bank to the Company in connection with each demand made at any time by the
Agent or such Bank upon the Company, and each such certificate shall, save for
manifest or other obvious error, constitute conclusive evidence of the
additional amount required to be paid by the Company to the Agent or such Bank
upon each such demand.
BANKS. See preamble.
BASE RATE. The higher of (a) the annual rate of interest announced
from time to time by CoreStates Bank, N.A. at its head office as its "prime
rate", or (b) one-half of one percent (1/2%) above the overnight federal funds
effective rate, as published by the Board of Governors of the Federal Reserve
System, as in effect from time to time.
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BASE RATE AMOUNTS. Any portions of the principal amount of the Loans
to the Company on which the Company has not elected pursuant to Section 3.1
hereof to pay interest based on the Eurodollar Rate or the Adjusted C/D Rate.
BUSINESS DAY. Any day on which banking institutions in Philadelphia,
Pennsylvania are open for the conduct of normal banking business, it being
recognized that a Business Day relating to interest calculated or payable by
reference to the Eurodollar Rate shall in addition be any such day on which
dealings are carried on in the Eurodollar interbank market and dollar
settlements of such dealings may be effected in New York City.
CASH AVAILABLE FOR DISTRIBUTIONS. With respect to any fiscal period
of the Company, (i) Net Income of the Company, plus (ii) depreciation and
amortization, plus (iii) provision for investment losses, plus (iv) any loss on
marketable securities, minus (v) any gain on marketable securities, in each case
determined for such period and in accordance with GAAP.
CASH FLOW AVAILABLE FOR DEBT SERVICE. For any fiscal period of a
Person, Net Income for such period plus (i) expenses for interest on
Indebtedness and for commitment fees, facility fees and any other fees in
connection with the borrowing of money or the maintenance of letters of credit
by such Person, plus (ii) depreciation and amortization plus (iii) losses on the
sale of real estate, less (iv) gains on the sale of real estate, in each case
determined for such period and in accordance with GAAP.
CERCLA. The Comprehensive Environmental Response, Compensation, and
Liability Act of 1980.
CLOSING DATE. September 20, 1996, or such other date as is mutually
agreed by the Company and the Banks.
CODE. The Internal Revenue Code of 1986, as amended.
COMMITMENT. Collectively, the obligation of the Banks to make Loans
to the Company and issue Letters of Credit for the account of the Company under
this Agreement up to the Commitment Amount, and with respect to each Bank, that
amount set forth on Schedule 1 hereto, as such schedule may be amended and in
effect from time to time.
COMMITMENT AMOUNT. At any date of determination thereof, an
amount equal to $70,000,000, minus the amount of any reductions effected
pursuant to Section 2.2 hereof.
COMMITMENT FEE. See Section 3.6.
COMMITMENT PERCENTAGE. With respect to each Bank, that percentage
referred to in Schedule 1 hereto as such Bank's percentage of the Commitment
Amount, as such schedule may be amended and in effect from time to time.
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COMPANY. See preamble.
CONSTRUCTION LOANS. Secured loans from time to time made by the
Company to various borrowers the proceeds of which are designated for the
construction of Health Care Facilities or for the acquisition of real estate and
the construction thereon of Health Care Facilities.
DEBT. With respect to any Person, all Indebtedness of such Person
for borrowed money.
DEBT SERVICE CHARGES. For any fiscal period of the Company, the sum
of (i) the expenses of the Company for such period for interest on Indebtedness
and for Commitment Fees, Facility Fees and any other fees in connection with the
borrowing of money by the Company or the maintenance of Letters of Credit for
the account of the Company plus (ii) required principal payments for such period
on Indebtedness of the Company (excluding any principal payments made by the
Company pursuant to Section 2.2 hereof), in each case determined in accordance
with GAAP plus (iii) fifteen percent (15%) of the sum of the amount of the Loans
Outstanding and Letters of Credit outstanding as of the end of such period.
DEBT SERVICE COVERAGE RATIO. At any date of determination thereof,
the ratio of Cash Flow Available for Debt Service for the period of the four
most recently ended fiscal quarters of the Company to Debt Service Charges for
such period.
DEBT TO ADJUSTED CASH FLOW AVAILABLE FOR DEBT SERVICE RATIO. At any
date of determination thereof, the ratio of the Company's Debt, as of the end of
the most recently ended fiscal quarter, to Adjusted Cash Flow Available for Debt
Service.
DEFAULT. Any event which but for the giving of notice or the lapse
of time or both would constitute an Event of Default.
DISTRIBUTION. The declaration or payment of any dividend on or in
respect of any shares of any class of capital stock of the Company, other than
dividends payable solely in shares of common stock of the Company; the purchase,
redemption, or other retirement of any shares of any class of capital stock of
the Company directly or indirectly or otherwise; the return of capital by the
Company to its shareholders as such; or any other distribution on or in respect
of any shares of any class of capital stock of the Company.
DOLLARS OR $. Dollars in lawful currency of the United States of
America.
DOMESTIC C/D RATE. With respect to any Adjusted C/D Rate Amount for
any Interest Period, the rate determined by the Agent to be the prevailing rate
per annum offered at 10:00 A.M. (Philadelphia time) (or as soon thereafter as
practicable) on the first day of any Interest Period for the purchase at face
value from the Agent of its dollar certificates of deposit in
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an amount comparable to an amount equal to the Adjusted C/D Rate Amounts elected
to be outstanding for that Interest Period and having a maturity comparable to
such Interest Period.
DRAWDOWN DATE. The date on which any Loan is made or is to be made.
ERISA. The Employee Retirement Income Security Act of 1974, and
regulations thereunder, as amended from time to time.
ERISA AFFILIATE. Any Person which is treated as a single employer
with the Company under Section 414 of the Code.
EURODOLLAR RATE. With respect to any Interest Period, in the case of
any Eurodollar Rate Amount, the sum of (a) the quotient of (i) the annual rate
of interest determined by the Agent, at or before 9:00 A.M. (Philadelphia time)
(or as soon thereafter as practicable) on the second Business Day prior to the
first day of such Interest Period, to be the annual rate of interest at which
deposits of dollars are offered to the Agent by prime banks in whatever
Eurodollar interbank market may be selected by the Agent in its sole discretion,
acting in good faith, at the time of determination and in accordance with the
usual practice in such market for delivery on the first day of such Interest
Period in immediately available funds and having a maturity equal to such
Interest Period in an amount equal (as nearly as may be) to an amount equal to
such Eurodollar Rate Amount divided, by (ii) a number equal to 1.00 minus the
Reserve Rate, plus (b) the Applicable Margin.
EURODOLLAR RATE AMOUNTS. In relation to any Interest Period, any
portions of the principal amount of the Loans on which the Company elects
pursuant to Section 3.1 hereof to pay interest based on the Eurodollar Rate.
EVENT OF DEFAULT. Any event described in Section 8 hereof.
FACILITY CASH FLOW AVAILABLE FOR DEBT SERVICE. For any fiscal period
of an owner or operator of a Health Care Facility, the Net Income of such Person
plus (i) expenses for interest on Indebtedness and for commitment fees, facility
fees and any other fees in connection with the borrowing of money by such person
plus (ii) depreciation and amortization plus (iii) rental expenses plus (iv)
management fees plus (v) intercompany interest expenses, in each case to the
extent attributable to such Health Care Facility and determined for such period
and in accordance with GAAP.
FACILITY COVERAGE RATIO. For any fiscal period of an owner or
operator of a Health Care Facility, ratio of (a) Cash Flow Available for Debt
Service attributable to such Health Care Facility to (b) interest expense plus
current maturities of long-term debt plus rental expense, in each case to the
extent attributable to such Health Care Facility and determined for such period
and in accordance with GAAP.
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FACILITY FEE. See Section 3.7.
FINANCIAL STATEMENTS. For any fiscal period of a Person, the balance
sheets and statements of income and retained earnings and of changes in
financial position of such Person, for such period, in reasonable detail,
prepared in accordance with GAAP.
GAAP. Generally accepted accounting principles as in effect from
time to time in the United States, consistently applied. Notwithstanding the
foregoing, if either the Company or the Banks determine that a change in GAAP
from that in effect on the date hereof has altered the treatment of certain
financial data to its detriment under this Agreement, such party may seek of the
other a renegotiation of any financial covenant affected hereby. If the Company
and the Banks cannot agree on renegotiated covenants, then, for the purposes of
this Agreement, GAAP will refer to generally accepted accounting principles on
the date just prior to the date on which the change that gave rise to the
renegotiation occurred.
HEALTH CARE FACILITIES. Real estate and improvements thereon used
exclusively or primarily for the delivery of health or human services, including
but not limited to hospitals, clinics, long term care facilities, custodial care
facilities (including but not limited to childcare centers), congregate care
facilities, assisted living facilities, surgery centers and medical office
buildings.
INDEBTEDNESS. With respect to any Person, all indebtedness,
liabilities and other obligations of such Person which would, in accordance with
GAAP, be classified upon a balance sheet of such Person as liabilities but in
any event including:
(a) all debt and similar monetary obligations, whether direct or
indirect;
(b) all guaranties of such Person, endorsements and other contingent
liabilities and other obligations of such Person, whether direct or indirect in
respect of indebtedness of others, to purchase indebtedness, or to assure the
owner of indebtedness against loss, through an agreement to purchase goods,
supplies or services for the purpose of enabling the debtor to make payment of
the indebtedness held by such owner or otherwise, and any obligations to
reimburse the issuer in respect of any letters of credit;
(c) all liabilities and other obligations to the extent not included
in (a) secured by any mortgage, lien, pledge, charge, security interest or other
encumbrance in respect of property owned by such Person, whether or not such
Person has assumed or become liable for the payment of such obligations;
(d) all indebtedness, liabilities and other obligations of such
Person arising under any conditional sale or other title retention agreement,
whether or not the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property; and
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(e) all indebtedness, liabilities and other obligations of such
Person in respect of leases of real and personal property (whether or not
required to be capitalized).
INTEREST PERIOD. Any period relating to a Eurodollar Rate Amount or
Adjusted C/D Rate Amount, the commencement and duration of which shall be
determined in accordance with Section 3.1 hereof.
INVESTMENTS. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of stock, partnership or limited
liability company interests or Indebtedness of, or for loans, advances, capital
contributions or transfers of property to, or in respect of any guaranties (or
other commitments as described under Indebtedness), or obligations of, any
Person, or for the acquisition of real estate or interests therein. In
determining the aggregate amount of Investments outstanding at any particular
time: (a) the amount of any Investment represented by a guaranty shall be taken
at not less than the principal amount of the obligations guaranteed; (b) there
shall be included as an Investment all interest accrued with respect to
Indebtedness constituting an Investment unless and until such interest is paid;
(c) there shall be deducted in respect of each such investment any amount
received as a return of capital (but only by repurchase, redemption, retirement,
repayment, liquidating dividend or liquidating distribution); (d) there shall
not be deducted in respect of any Investment any amounts received as earnings on
such Investment, whether as dividends, interest or otherwise, except that
accrued interest included as provided in the foregoing clause (b) may be
deducted when paid; and (e) there shall not be deducted from the aggregate
amount of Investments any decrease in the value thereof.
LETTERS OF CREDIT. Letters of credit issued for the account of the
Company pursuant to this Agreement and the Letter of Credit Documents.
LETTER OF CREDIT DOCUMENTS. All applications and agreements executed
by the Company requesting or relating to the issuance of, or reimbursement for,
Letters of Credit.
LOANS. The revolving credit loans made or to be made to the Company
as contemplated by Section 2 hereof.
LOAN DOCUMENTS. Collectively, this Agreement, the Notes, and the
Letter of Credit Documents, each as amended and in effect from time to time.
MAJORITY BANKS. As of any date, the Banks holding at least
two-thirds (66.66%) of the Outstanding amount of the Loans on such date; and if
no Loans are Outstanding, the Banks whose aggregate Commitments constitute at
least two-thirds (66.66%) of the total of all Commitments.
MATURITY DATE. September 30, 2001.
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MORTGAGE LOANS. Loans from time to time made by the Company, in each
case secured by a first mortgage lien on a Health Care Facility.
NET INCOME. For any fiscal period of a Person, the net income (or
loss), after income taxes, of such Person determined in accordance with GAAP.
NOTES. See Section 2.3.
OBLIGATIONS. All Indebtedness, obligations and liabilities to the
Agent and the Banks, existing on the date of this Agreement or arising
thereafter, direct or indirect, joint or several, absolute or contingent,
matured or unmatured, liquidated or unliquidated, secured or unsecured, arising
by contract, operation of law or otherwise of the Company arising or incurred
under this Agreement, the Letter of Credit Documents or in respect of any Loans,
Notes or Letters of Credit or other instruments at any time evidencing any of
the foregoing.
OFFICER'S CERTIFICATE. A certificate signed by the President,
Treasurer, Chief Financial Officer or Controller of the corporation on whose
behalf the certificate is executed.
OUTSTANDING. When used with reference to the aggregate balance of
the Loans, as at any date of determination, the unpaid principal in respect of
the Loans.
PBGC. The Pension Benefit Guaranty Corporation and any successor
entity or entities having similar responsibilities.
PENSION PLAN. Pension plan shall include (a) any multiemployer plan
within the meaning of Section 3(37) of ERISA, (b) any employee benefit plan
within the meaning of Section 3(3) of ERISA, other than plans described in (a)
above and (c) any employee pension benefit plan within the meaning of Section
3(2) of ERISA the benefits of which are guaranteed on termination in full or in
part by PBGC pursuant to Title IV of ERISA, other than plans described in (a)
above, each as maintained or contributed to by the Company or any ERISA
Affiliate.
PERSON. Any corporation, unincorporated association, partnership,
trust, organization, business, individual or other legal entity and any
government or any governmental agency or political subdivision thereof.
RESERVE PERCENTAGE. For any day, that percentage (expressed as a
decimal) which is in effect on such day, as prescribed by the Board of Governors
of the Federal Reserve System (or any successor) for determining the reserve
requirement (including without limitation any marginal, emergency, supplemental,
special or other reserves) for a member bank of the Federal Reserve System in
Philadelphia with deposits exceeding $1 billion in respect of non-personal time
deposits in Philadelphia having a maturity comparable to the Interest Period for
the Adjusted C/D Amounts subject to such Interest Period and in an amount of
$100,000 or more.
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The Adjusted C/D Rate shall be adjusted automatically on and as of the effective
date of any change in the Reserve Percentage.
RESERVE RATE. For any day with respect to any Eurodollar Rate
Amount, the maximum rate in effect from time to time, expressed as a decimal, at
which the Banks would be required to maintain reserves under Regulation D of the
Board of Governors of the Federal Reserve System (or any successor or similar
regulation relating to such reserve requirements) against "Eurocurrency
Liabilities" (as such term is used in Regulation D)
if such liabilities were outstanding.
SUBSIDIARY. With respect to any Person, any corporation,
association, trust or other business entity with respect to which such Person
owns directly, or indirectly through a subsidiary, at least a majority of the
shares of the outstanding capital stock or other interest entitled to vote for
the election of directors.
TANGIBLE NET WORTH. The aggregate of the capital stock (but
excluding treasury stock and capital stock subscribed and unissued) and surplus
(including earned surplus, capital surplus and the balance of the current profit
and loss account not transferred to surplus) of the Company as the same properly
appears on a balance sheet of the Company prepared in accordance with GAAP, less
the sum of:
(a) the total book value of all assets of the Company which
would be treated as intangibles under GAAP including without
limitation, such items as good will, leasehold improvements,
trademarks, trade names, service marks, brand names, copyrights,
patents and licenses, and rights with respect to the foregoing, and
(b) all amounts representing any write-up in the book value of
any assets of the Company and its Subsidiaries resulting from a
revaluation thereof subsequent to December 31, 1992.
TOTAL LIABILITIES. All liabilities of the Company which are properly
classified as liabilities in accordance with GAAP.
UHS. Universal Health Services, Inc., a Delaware corporation.
UHS SUBSIDIARIES. At the relevant time of reference hereto, any
Subsidiary or other entity the accounts of which would be consolidated with
those of Universal Health Services, Inc. in its consolidated financial
statements if such statements were prepared as of such date.
UNENCUMBERED PROPERTY. Any property owned or held under capital
lease by the Company which is not subject to any form of mortgage, deed of
trust, or other lien or
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encumbrance; provided that for purposes of this definition, leases shall not be
deemed to be encumbrances.
All terms of an accounting character not specifically defined herein
shall have the meanings assigned thereto by GAAP.
Section 2. LOANS.
Section 2.1. COMMITMENT TO LEND. Subject to the terms and conditions
set forth in this Agreement, each of the Banks severally agrees, absent a
Default or an Event of Default, to lend to the Company and the Company may
borrow and reborrow from time to time between the Closing Date and the Maturity
Date, upon notice to the Agent given in accordance with Section 2.4 hereof, such
amounts as requested by the Company up to a maximum aggregate principal amount
outstanding (after giving effect to all amounts requested) at any one time equal
to such Bank's Commitment less such Bank's pro rata share of any outstanding
Letters of Credit. The Loans shall be pro rata in accordance with each Bank's
Commitment Percentage. Each request for Loans hereunder shall constitute a
representation by the Company that the conditions set forth in Sections 5
and 6 hereof, as applicable, have been satisfied on or prior to the date of such
request. The Commitment shall terminate and all outstanding Loans shall become
absolutely due and payable together with any and all accrued and unpaid interest
thereon on the Maturity Date.
Section 2.2. REDUCTION OF COMMITMENT AMOUNT.
(a) The Company may at any time and from time to time upon three (3)
Business Days' written notice to the Agent reduce by at least $1,000,000 or
terminate entirely the unused portion of the Commitment Amount as in effect on
the date of such notice, whereupon the Commitments of the Banks shall be reduced
pro rata in accordance with their respective Commitment Percentages by the
amount specified in such notice or terminated, as the case may be. Promptly
after receiving any notice of the Company delivered pursuant to this
Section 2.2(a), the Agent will notify the Banks of the substance thereof.
(b) The Commitment Amount shall be reduced by an amount equal to
fifty percent (50%) of the proceeds of any equity securities issued by the
Company after the date of this Agreement (net of all reasonable costs and
expenses incurred in connection with such issuance). Such reduction shall be
effective on the date of closing of such issuance, except that if a Eurodollar
Rate Amount or Adjusted C/D Rate Amount is Outstanding on such date, such
reduction shall be effective on the earlier of 90 days after the closing of such
issuance or the last day of the latest ending Interest Period applicable to any
such Eurodollar Rate Amount or Adjusted C/D Rate Amount.
(c) If at any time the aggregate principal amount of the Loans
outstanding hereunder plus the amount of any Letters of Credit outstanding
hereunder exceeds the Commitment Amount, the Company shall immediately eliminate
such excess by making
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payments of principal on the Loans or causing such Letters of Credit to be
terminated, or both. Any prepayment of principal of the Loans shall be
accompanied by the payment of the interest accrued hereunder on the principal
prepaid to the date of prepayment.
(d) All payments received by the Agent pursuant to this Section 2.2
shall first be applied to Base Rate Amounts of the Loans and, in the event that
the amount of any prepayment exceeds the aggregate outstanding Base Rate Amounts
of the Loans, then such excess shall be applied to the Adjusted C/D Rate Amounts
or Eurodollar Rate Amounts of the Loans, at the Company's option; provided that
any prepayments applied to the Adjusted C/D Rate Amounts or Eurodollar Rate
Amounts of the Loans pursuant to this paragraph (d) shall be deemed to be
optional prepayments subject to the provisions of Section 2.6 hereof.
(e) All payments received by the Agent pursuant to this Section 2.2
shall reduce the Loans made by each of the Banks pro rata in accordance with
their respective Commitment Percentages. Each reduction of the Commitment Amount
shall reduce the Commitments of the Banks pro rata in accordance with their
respective Commitment Percentages. Upon the effective date of any reduction or
termination of the Commitment Amount in accordance with this Section 2.2, the
Company shall pay to the Agent for the respective accounts of the Banks the full
amount of any Commitment Fee then accrued on the amount of the reduction. No
reduction of the Commitments of the Banks shall be subject to reinstatement.
Section 2.3. NOTES.
(a) The Indebtedness of the Company resulting from the Loans made to
the Company shall be evidenced by Notes executed and delivered by the Company to
the Banks on the date of this Agreement in substantially the form of Exhibit A
hereto representing the obligation of the Company to pay to each Bank an amount
equal to its Commitment or if less, the aggregate unpaid principal amount of all
Loans made by such Bank to the Company hereunder, plus interest accrued thereon.
(b) All Loans made to the Company by the Banks shall be recorded by
the Banks and all payments made on account of principal thereof shall be
similarly recorded. Any failure of the Banks to record a transaction in a timely
fashion shall not affect or impair the validity of any Obligation.
Section 2.4. REQUESTS FOR LOANS. Each Loan to the Company comprised
of Base Rate Amounts shall be on notice to the Agent given not later than 3:30
P.M. (Philadelphia time) on the Business Day prior to the proposed Drawdown
Date. Each Loan to the Company comprised of Adjusted C/D Rate Amounts or
Eurodollar Rate Amounts shall be on notice to the Agent given not later than
9:00 A.M. (London time) on the second Business Day prior to the proposed
Drawdown Date. Each such notice shall be by telephone or telecopy, in each case
confirmed in writing by the Company, delivered to the Agent at its address
specified from time to time by the
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Agent. The Agent shall promptly, but in no event later than 5:00 P.M.
(Philadelphia time) on the requisite Business Day, notify the Banks of the
contents of each such notice.
Each such notice delivered by the Company shall specify the
aggregate principal amount of Loans requested, the proposed Drawdown Dates of
the Loans requested, any Adjusted C/D Amounts or Eurodollar Rate Amounts of the
Loans requested and the duration of the initial Interest Period(s) applicable to
any such Adjusted C/D Amounts or Eurodollar Rate Amounts. Each such notice shall
obligate the Company to accept the Loans requested from the Banks on the
proposed Drawdown Date therefor. Each request for a loan made hereunder shall be
in a minimum aggregate amount specified in Section 3.1. The Banks will cause the
aggregate amount of such Loan to be made available to the Company in accordance
with the provisions of Section 2.7 hereof.
Section 2.5. INTEREST ON LOANS.
(a) Except as provided in Section 3.3 hereof, (i) Base Rate Amounts
of the Loans outstanding from time to time shall bear interest at the Base Rate,
(ii) Adjusted C/D Rate Amounts of the Loans shall bear interest during the
Interest Period relating thereto at the Adjusted C/D Rate, and (iii) Eurodollar
Rate Amounts of the Loans shall bear interest during the Interest Period
relating thereto at the Eurodollar Rate. Interest on the Loans shall be payable
in accordance with Section 3.1(a) hereof.
(b) Each Applicable Margin will be determined from time to time
based on the Debt to Adjusted Cash Flow Available for Debt Service Ratio. Upon
receipt by the Agent of the quarterly financial statements required to be
delivered pursuant to Section 7.3, the Agent shall determine the Debt to
Adjusted Cash Flow Available for Debt Service Ratio attained for the quarterly
period covered by such statements. The Agent shall thereupon determine the
Applicable Margin(s) corresponding to such Ratio as set forth in Schedule 2
hereto. Any adjustment to the Applicable Margin(s) shall become effective three
Business Days following receipt by the Agent of the financial statements
required pursuant to Section 7.3 hereof or, if the Company fails to provide
financial statements within the time period required by Section 7.3 hereof, and
such financial statements cause the Applicable Margin(s) to increase, such
adjustment of the Applicable Margin(s) shall become effective retroactive to the
date three Business Days following the date the financial statements were
required under Section 7.3 to be furnished (provided, however, that the
determination of the Applicable Margin(s) in effect as of the Closing Date shall
be based upon the financial statements dated June 30, 1996, and shall remain in
effect until such time as the Agent shall receive more current financial
statements).
Section 2.6. PREPAYMENTS.
The Company shall have the right to repay Adjusted C/D Rate Amounts
or Eurodollar Rate Amounts of the Loans made to the Company hereunder as a whole
or in part, on the last day of the Interest Period relating thereto, without
premium or penalty. The Company
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shall also have the right at any time, upon one (1) Business Days notice to the
Agent, to prepay Base Rate Amounts of the Loans, as a whole or in part, without
premium or penalty; provided that each partial prepayment shall be in the
aggregate principal amount of $100,000 or an integral multiple thereof. Subject
to the conditions of Section 2.1 hereof, amounts so prepaid may be reborrowed.
In addition, the Company may, upon three (3) Business Days written, telegraphic
or telephonic notice to the Agent, prepay all, but not less than all, of the
Adjusted C/D Rate Amounts or Eurodollar Rate Amounts of the Loans subject to a
particular Interest Period on a date other than the last day of the Interest
Period relating thereto; provided, that upon any such prepayment and upon any
other prepayment (by acceleration or otherwise), the Company shall pay to the
Agent, for the respective accounts of the Banks, on a pro rata basis, a sum
which shall be determined by the Agent, which determination shall be conclusive
in the absence of manifest error, in the following manner after each such
payment:
(a) First, the Agent shall determine the amount (the
"Installment Amount") by which (i) the total amount of interest
which would have accrued hereunder on each installment of principal
so prepaid, (calculated on the assumption that the applicable margin
for such principal amount is zero) during the period beginning on
the date of such payment and ending on the last day of the Interest
Period relating thereto (the "Reemployment Period") exceeds (ii) the
total amount of interest which would accrue, during the Reemployment
Period, at the Agent's reinvestment rate, as determined by the Agent
in its sole discretion at or about the time of such payment, on an
amount equal to the Adjusted C/D Rate Amounts or Eurodollar Rate
Amounts so prepaid;
(b) Second, each Installment Amount shall be treated as
payable on the last day of the Interest Period relating to the
Adjusted C/D Rate Amounts or Eurodollar Rate Amounts prepaid.
(c) Third, the amount to be paid shall be the present value of
the Installment Amount determined by discounting the amount thereof
from the date on which the Installment Amount is to be treated as
payable, at the same annual interest rate as the reinvestment rate
determined as aforesaid by the Agent.
Each prepayment made pursuant to this Section 2.6 shall be accompanied by the
payment of accrued interest on the principal prepaid to the date of prepayment.
Section 2.7. FUNDS FOR LOANS. Each Bank will, upon receiving notice
from the Agent of any request by the Company for Loans pursuant to Section 2.4,
become and be obligated to make available to the Agent not later than 3:00 p.m.
(Philadelphia time) on the proposed Drawdown Date, in funds immediately
available for credit to the Company's account at CoreStates Bank, N.A., an
aggregate amount in dollars equal to such Bank's Commitment Percentage of the
Loan requested. Upon satisfaction of the conditions set forth in Sections
5 and 6, as applicable, the Agent will cause the aggregate amount of such funds
actually received by the Agent from the Banks to
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be credited to the Company's account. The failure or refusal of any Bank to make
available to the Agent at the aforesaid time on any Drawdown Date the amount of
the Loan to be made by such Bank thereon shall not relieve the other Banks from
their several obligations hereunder to make their respective Commitment
Percentages of any requested Loans.
Section 2A LETTERS OF CREDIT.
Section 2A.1 COMMITMENT TO ISSUE LETTERS OF CREDIT. Subject to and
upon the terms and conditions set forth herein, the Company may request
CoreStates Bank, N.A. (the "Issuing Bank") at any time and from time to time
prior to the Maturity Date, to issue, and subject to the terms and conditions
contained herein the Issuing Bank shall issue, for the account of the Company,
one or more Letters of Credit in such form as is approved by the Issuing Bank in
its sole discretion. Notwithstanding the foregoing, (i) no Letter of Credit
shall be issued the stated amount of which, when added to the Loans outstanding
at such time would exceed the Commitment Amount, (ii) no Letter of Credit shall
be issued the stated amount of which, when added to any other Letters of Credit
outstanding at such time, would exceed $10,000,000, (iii) no Letter of Credit
shall be issued unless the Company shall have first executed and delivered to
the Issuing Bank all Letter of Credit Documents reasonably requested by the
Issuing Bank, and (iv) each of the conditions specified in Section 6 (other than
Section 6.5) shall have been satisfied on the date of issuance. In addition, no
Letter of Credit shall bear an expiration date later than two years from
issuance, or in any event later than September 30, 2001, and no Letter of Credit
shall contain any term or provision that extends the expiration date or
otherwise renews the Letter of Credit without explicit action being taken by the
Issuing Bank.
Section 2A.2 REQUESTS FOR LETTERS OF CREDIT. Whenever the Company
desires that a Letter of Credit be issued for its account, the Company shall
give the Issuing Bank at least five Business Days prior written notice thereof.
Each such request shall specify the amount and purpose of such Letter of Credit.
The execution and delivery of each request for a Letter of Credit shall be
deemed to be a representation and warranty by the Company that such Letter of
Credit may be issued in accordance with, and will not violate the requirements
of this Section 2A. Unless the Issuing Bank has received notice from the
Majority Banks before it issues the Letter of Credit that one or more required
conditions are not satisfied or that the issuance would violate this Section 2A,
the Issuing Bank may issue the requested Letter of Credit in accordance with
this Agreement and the Issuing Bank's usual and customary practices.
Section 2A.3 PRO RATA SHARE, ETC. Immediately upon the issuance by
the Issuing Bank of any Letter of Credit, the Issuing Bank shall be deemed to
have sold and transferred to each Bank (other than the Issuing Bank), and each
such Bank shall be deemed irrevocably and unconditionally to have purchased and
received from the Issuing Bank, without recourse or warranty, an undivided
interest and participation, to the extent of such Bank's Commitment Percentage,
in such Letter of Credit, each substitute Letter of Credit, each drawing made
thereunder, and the obligations of the Company under this Agreement, the Letter
of Credit Documents and any security therefor or guaranty pertaining thereto. In
determining whether to
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pay under any Letter of Credit, the Issuing Bank shall have no obligation
relative to the Banks other than to confirm that any documents required to be
delivered under such Letter of Credit appear to have been delivered and that
they appear to comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by the Issuing Bank under or in
connection with any Letter of Credit, if taken or omitted in the absence of
gross negligence or wilful misconduct, shall not create for the Issuing Bank any
resulting liability to any Bank.
Section 2A.4 BANKS' OBLIGATION TO FUND. In the event that the
Issuing Bank makes any payment under any Letter of Credit and the Company shall
not have funded or otherwise reimbursed such amount in full in cash to the
Issuing Bank as required by Section 2A.5 or the Letter of Credit Documents, the
Issuing Bank shall promptly notify each Bank of such failure, and each Bank
shall promptly and unconditionally pay to the Issuing Bank the amount of such
Bank's Commitment Percentage of such unreimbursed payment and in same day funds.
Such payment shall be made to the Issuing Bank at its address for notices set
forth in Section 15. If prior to 11:00 a.m. on any Business Day the Issuing Bank
notifies any Bank that it has funded or is required to fund a payment under a
Letter of Credit, such Bank shall make its required payment on the same day. If
and to the extent such Bank shall not have made its Commitment Percentage of the
amount of such payment available to the Issuing Bank, such Bank agrees to pay
the Issuing Bank on demand such amount together with interest for each day from
such date until the day such amount is paid to the Issuing Bank at the Federal
Funds Rate plus 50 basis points. The failure of any Bank to make available to
the Issuing Bank its Commitment Percentage of any payment under any Letter of
Credit shall not relieve any other Bank of its obligation hereunder to make
available to the Issuing Bank its Commitment Percentage of any payment under any
Letter of Credit on the date required, but no Bank shall be responsible for the
failure of any other Bank to make available to the Issuing Bank such other
Bank's Commitment Percentage of any such payment. If the Issuing Bank receives a
payment of a reimbursement obligation as to which the Issuing Bank has received
any payments from the Banks pursuant to this Section 2A.4, the Issuing Bank
shall promptly pay to each Bank which has paid its Commitment Percentage
thereof, an amount equal to such Bank's Commitment Percentage of such
reimbursement. The obligations of the Banks to make payments to the Issuing Bank
with respect to Letters of Credit shall be irrevocable and not subject to any
qualification or exception whatsoever and shall be made in accordance with the
terms and conditions of this Agreement under all circumstances.
Section 2A.5 REIMBURSEMENT BY THE COMPANY. The Company agrees to
reimburse the Issuing Bank in immediately available funds for any payment made
by the Issuing Bank under any Letter of Credit issued for the account of the
Company, all as may be further set forth in the Letter of Credit Documents. In
the event of any conflict between this Agreement and the Letter of Credit
Documents, the Letter of Credit Documents shall prevail.
Section 2A.6 LETTER OF CREDIT FEES.
(a) Not later than three Business Days prior to the date of issuance
of each Letter of Credit, the Company shall pay to the Issuing Bank with respect
to such Letter of Credit
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an issuance fee equal to one-eighth of one percent (1/8%) on the stated amount
thereof. In addition, so long as any Letter of Credit is outstanding, the
Company shall pay a fee to the Issuing Bank, for the respective accounts of the
Banks in accordance with their respective Commitment Percentages, at the
applicable rate per annum set forth on Schedule 2 hereto, calculated on the
stated amount of such Letter of Credit. Such fee shall be payable quarterly in
arrears on the first Business Day of each fiscal quarter, with a final payment
on the expiration date of such Letter of Credit.
(b) Each applicable fee will be determined from time to time based
on the Debt to Adjusted Cash Flow Available for Debt Service Ratio. Upon receipt
by the Agent of the quarterly financial statements required to be delivered
pursuant to Section 7.3, the Agent shall determine the Debt to Adjusted Cash
Flow Available for Debt Service Ratio attained for the quarterly period covered
by such statements. The Agent shall thereupon determine the applicable fee
corresponding to such Ratio as set forth in Schedule 2 hereto. Any adjustment to
the applicable fee shall become effective three Business Days following receipt
by the Agent of the financial statements required pursuant to Section 7.3 hereof
or, if the Company fails to provide financial statements within the time period
required by Section 7.3 hereof, and such financial statements cause the
applicable fee to increase, such adjustment of the applicable fee shall become
effective retroactive to the date three Business Days following the date the
financial statements were required under Section 7.3 to be furnished (provided,
however, that the determination of the applicable fee in effect as of the
Closing Date shall be based upon the financial statements dated June 30, 1996,
and shall remain in effect until such time as the Agent shall receive more
current financial statements).
Section 3. INTEREST; PAYMENTS AND COMPUTATIONS, FEES.
Section 3.1. INTEREST.
(a) ELECTIONS. At the option of the Company, so long as no Default
or Event of Default has occurred and is then continuing, the Company may elect
from time to time to have a portion of the unpaid principal of the Loans
outstanding from time to time bear interest calculated by reference to the Base
Rate, the Adjusted C/D Rate or the Eurodollar Rate, provided that any portion of
the Loans selected to bear interest at the Base Rate shall be in an amount not
less than $100,000 or some greater integral multiple of $100,000 and any portion
of the Loans selected to bear interest at the Adjusted C/D Rate or the
Eurodollar Rate shall be in an amount not less than $100,000 or some greater
integral multiple of $100,000 with respect to any single Interest Period. Any
election by the Company to have interest calculated by reference to the Base
Rate, the Adjusted C/D Rate or the Eurodollar Rate shall be made by notice
(which shall be irrevocable) to the Agent as provided in Section 2.4 and shall
specify the Adjusted C/D Rate Amounts or Eurodollar Rate Amounts requested and
the date of commencement and duration of the proposed Interest Period (which
must be 30, 60, 90 or 180 days in the case of Adjusted C/D Rate Amounts and 1,
2, 3 or 6 months for Eurodollar Rate Amounts). Each election of an Adjusted C/D
Rate or Eurodollar Rate shall lapse at the end of the expiring Interest Period
unless extended
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by a further election notice as hereinbefore provided. Interest on each Base
Rate Amount shall be payable monthly in arrears on the first day of every fiscal
month for the immediately preceding month. Interest on each Adjusted C/D Rate
Amount or Eurodollar Rate Amount shall be payable (i) on the last day of each
Interest Period relating thereto or (ii) if any Interest Period is longer than
ninety (90) days, on the last day of each ninety-day period following the
commencement of such Interest Period and on the last day of such Interest
Period.
(b) NOTICES AS TO ADJUSTED C/D RATE AND EURODOLLAR RATE. The Agent
shall notify the Company and the Banks of its determination of any Adjusted C/D
Rate or Eurodollar Rate. Each such notice shall, absent manifest error, be
binding upon the Company and the Banks.
(c) SUBSTITUTION OF BASE RATE. If, with respect to any Interest
Period, the Agent is unable to determine the Adjusted C/D Rate or the Eurodollar
Rate relating thereto, or adverse or unusual conditions in or changes in
applicable law relating to the applicable certificate of deposit or Eurodollar
interbank market make it illegal or, in the reasonable judgment of any Bank (the
"Affected Bank"), impracticable, to fund therein any of the Loans or make the
projected Adjusted C/D Rate or Eurodollar Rate unreflective of the actual costs
of funds therefor to the Affected Bank, or if it shall become unlawful for the
Affected Bank to charge interest on the Loans on an Adjusted C/D Rate or
Eurodollar Rate basis, then in any of the foregoing events the Affected Bank
shall so notify the Company, the Agent and the other Banks (which notice shall
be conclusive and binding upon the Company absent manifest error) and
thereafter, all Loans made by the Affected Bank shall bear interest and be
calculated and payable in respect of such projected Interest Period (and
thereafter for so long as the conditions referred to in this sentence shall
continue) by reference to the Base Rate in accordance with Section 2.5.
(d) ILLEGALITY. Notwithstanding any other provisions herein, if any
present or future law, regulation, treaty or directive or in the interpretation
or application thereof shall make it unlawful for any Bank to make or maintain
Eurodollar Rate Amounts, such Bank shall forthwith give notice of such
circumstances to the Company, the Agent and the other Banks and thereupon (a)
the Commitment of such Bank to make Eurodollar Rate Amounts or convert Loans to
Eurodollar Rate Amounts shall forthwith be suspended and (b) such Bank's Loans
then outstanding as Eurodollar Rate Amounts, if any, shall be converted
automatically to Base Rate Amounts on the last day of each Interest Period
applicable to such Eurodollar Rate Amounts or within such earlier period as may
be required by law. The Company hereby agrees promptly to pay the Agent for the
account of such Bank, upon demand by such Bank, any additional amounts necessary
to compensate such Bank for any costs incurred by such Bank in making any
conversion in accordance with this Section 3.1(d), including any interest or
fees payable by such Bank to lenders of funds obtained by it in order to make or
maintain its Eurodollar Rate Amounts hereunder.
(e) CHANGES IN RESERVE REQUIREMENT. If, as a consequence of (i) any
reserve or special deposit or liquidity or similar requirements hereafter
increased, imposed,
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modified or determined to be applicable by any government or regulatory
authority, bureau or agency or (ii) any other change in law or regulation or the
interpretation thereof or (iii) any other change in or requirement of the
applicable Eurodollar interbank markets for dollar deposits affecting banks
generally therein, additional costs are incurred by any Bank of making, funding
or maintaining the Loans on either an Adjusted C/D Rate or a Eurodollar Rate
basis which cannot be computed as part of the respective interest rate, then the
Agent shall, after consultation with the Company and the other Banks, prepare a
new formula for compensating such Bank for such aforesaid additional costs. The
Agent shall furnish a copy of any such new formula to the Company and the Banks
and the respective interest rate shall thereafter be determined pursuant to such
new formula. Any such determination by the Agent shall be conclusive and binding
on the Company in the absence of manifest error.
(f) INCREASED COSTS. In the event that any Bank shall suffer any
additional loss or expense or liability in connection with the calculation or
charging of interest on an Adjusted C/D Rate or Eurodollar Rate basis (other
than taxes based upon such Bank's net income, gross receipts or profits or taxes
which would be imposed whether or not such Bank makes loans bearing interest
calculated by reference to the Adjusted C/D Rate or the Eurodollar Rate) which
(i) is not provided for by Sections 2.6, 3.1(c), 3.1(d), 3.1(e) or 3.8
hereof and (ii) results from (x) any payment or prepayment (whether by
acceleration or otherwise) of all or any part of the Adjusted C/D Rate Amounts
or Eurodollar Rate Amounts of the Loans on a date other than the last day of the
related Interest Period specified in the Company's notice thereof, (y) the
compliance by such Bank with any guideline or request, from any central bank or
other governmental authority (whether or not having the force of law), or (z)
any withholding tax, impost, duty or deduction which the Company is required by
law to effect, then the Company shall forthwith upon demand by such Bank
reimburse such Bank in full for such loss, expense or liability (and in the case
of any withholding tax or other deduction, pay such amount as would result in
such Bank's receiving the same amount as it would have received hereunder had no
such withholding or deduction been made). A claim by any Bank for all or any
part of any additional amount required to be paid by the Company pursuant to
this Section 3.1(f) may be made before and/or after the end of the Interest
Period to which such claim relates or during the Interest Period in which such
claim has arisen and before and/or after any repayment or prepayment, to which
such claim relates, of any Adjusted C/D Rate Amounts or Eurodollar Rate Amounts
owed hereunder. A Bank Certificate as to the amount and calculation of such
loss, expense or liability, submitted to the Company by such Bank, shall be
conclusive and binding for all purposes, except for manifest error. Such Bank
shall in good faith use reasonable efforts to minimize the amount of any such
costs.
Section 3.2. CONCERNING INTEREST PERIODS. No Interest Period for
Loans may be selected by the Company if such Interest Period ends after the
Maturity Date. If any Interest Period would otherwise end on a day which is not
a Business Day for Adjusted C/D Rate or Eurodollar Rate purposes, as applicable,
that Interest Period, shall end on the next succeeding Business Day.
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Section 3.3. INTEREST ON OVERDUE AMOUNTS. Overdue principal and (to
the extent permitted by applicable law) interest on the Loans and all other
overdue amounts payable hereunder shall bear interest payable on demand at a
rate per annum equal to two percent (2%) above the Base Rate, whether or not any
Eurodollar Rate or Adjusted C/D Rate would otherwise have been applicable
thereto, until such amount shall be paid in full (after as well as before
judgment).
Section 3.4. PAYMENTS. All payments of principal of and interest on
Loans made to the Company and any other amounts due hereunder shall be made by
the Company to the Agent, for the pro rata benefit of the Banks, in immediately
available funds in accordance with the payment instructions set forth on
Schedule 3 hereof. All payments by the Company hereunder and under any of the
other Loan Documents shall be made without setoff or counterclaim.
Section 3.5. COMPUTATIONS. All computations of interest on the Loans
and of Commitment, Facility or other fees payable in connection herewith shall,
unless otherwise expressly provided herein, be based on a 360-day year and paid
for the actual number of days elapsed, except that computations of interest on
Base Rate Amounts shall be based on a 365/366-day year. Whenever a payment
hereunder or under the Notes becomes due on a day which is not a Business Day,
the due date for such payment shall be extended to the next succeeding Business
Day, and interest shall accrue during such extension.
Section 3.6. COMMITMENT FEE.
(a) The Company agrees to pay to the Agent, for the respective
accounts of the Banks in accordance with their respective Commitment
Percentages, a "Commitment Fee" at the applicable rate per annum set forth on
Schedule 2 hereto, calculated on the average daily amount during each calendar
quarter or portion thereof from the Closing Date through the Maturity Date by
which the Commitment Amount exceeds the sum of the aggregate principal amount of
the Loans outstanding during such calendar quarter plus the aggregate amount of
any Letters of Credit outstanding during such calendar quarter. The Commitment
Fee shall be payable quarterly in arrears on the first Business Day of each
fiscal quarter for the preceding fiscal quarter, with a final payment on the
Maturity Date, or any earlier date on which the Commitments shall terminate.
(b) Each applicable fee will be determined from time to time based
on the Debt to Adjusted Cash Flow Available for Debt Service Ratio. Upon receipt
by the Agent of the quarterly financial statements required to be delivered
pursuant to Section 7.3, the Agent shall determine the Debt to Adjusted Cash
Flow Available for Debt Service Ratio attained for the quarterly period covered
by such statements. The Agent shall thereupon determine the applicable fee
corresponding to such Ratio as set forth in Schedule 2 hereto. Any adjustment to
the applicable fee shall become effective three Business Days following receipt
by the Agent of the financial statements required pursuant to Section 7.3 hereof
or, if the Company fails to provide financial statements within the time period
required by Section 7.3 hereof, and such
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financial statements cause the applicable fee to increase, such adjustment of
the applicable fee shall become effective retroactive to the date three Business
Days following the date the financial statements were required under Section 7.3
to be furnished (provided, however, that the determination of the applicable fee
in effect as of the Closing Date shall be based upon the financial statements
dated June 30, 1996, and shall remain in effect until such time as the Agent
shall receive more current financial statements).
Section 3.7. CLOSING FEES. In addition to the Commitment Fee payable
hereunder, the Company agrees to pay to the Agent, for the respective accounts
of the Banks, the following closing fees: (a) with respect to each Bank that is
party to this Agreement and was a party to the Original Credit Agreement, 7.0
basis points on that portion of its Commitment hereunder equal to the amount of
its Commitment under the Original Credit Agreement plus 12.5 basis points on the
excess of its Commitment hereunder; and (b) with respect to any other Bank that
is a party to this Agreement, 12.5 basis points on its Commitment hereunder.
Section 3.8. ADDITIONAL AMOUNTS PAYABLE ON ACCOUNT OF CREDIT
FACILITIES. If any change in law or governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law) or the
interpretation thereof by a court or governmental authority with appropriate
jurisdiction or compliance with any existing law or governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law) or the interpretation thereof by a court or governmental authority with
appropriate jurisdiction imposes, increases or renders applicable after the
Closing Date any special deposit or reserve or liquidity or other similar
requirements (whether or not having the force of law) against credits held by,
or deposits in or for the account of, or Loans or Letters of Credit by any
office of any Bank or otherwise affects the amount of capital required or
expected to be maintained by any of the Banks or any corporation controlling any
of the Banks and such Bank reasonably determines that the amount of such
deposits, reserves or capital required is increased by or based upon the
existence of the credit facilities established hereunder, the Loans made
pursuant hereto, any Letters of Credit issued hereunder, or upon agreements or
loans of the type contemplated hereby, then such Bank may notify the Company of
such fact. To the extent that such increased capital requirements are not
reflected in any Base Rate, Adjusted C/D Rate or Eurodollar Rate applicable to
the Loans, or the fees applicable to the Letters of Credit, the Company and such
Bank shall thereafter attempt to negotiate an adjustment to the fees payable in
connection herewith which will adequately compensate such Bank in light of these
circumstances. If the Company and such Bank are unable to agree to such
adjustment within 30 days of the day on which the Company receives such notice,
then commencing on the date of any such notice (but not earlier than the
effective date of any such change), the fees payable in connection herewith
shall increase by an amount which will, in such Bank's reasonable determination,
provide adequate compensation.
Section 4. REPRESENTATIONS AND WARRANTIES. The Company hereby
represents and warrants to the Banks and the Agent as follows:
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Section 4.1. CORPORATE EXISTENCE.
(a) The Company (i) is a real estate investment trust duly
organized, validly existing and in good standing under the laws of the State of
Maryland, and (ii) has adequate power and authority and full legal right to own
or to hold under lease its properties and to carry on the business in which it
is presently engaged. The Company is qualified, licensed, admitted or approved
to do business as a foreign business entity in each jurisdiction wherein the
character of the properties owned or held under lease by it, or the nature of
the business conducted by it, makes such qualification necessary, except where
such failure to qualify would not have a material adverse effect on the
financial condition, properties or business of the Company and would not have
any adverse effect on the enforceability of the Loan Documents.
(b) The Company has adequate power and authority and has full legal
right to enter into each of the Loan Documents to which it is or is to become a
party, to perform, observe and comply with all of its agreements and obligations
under each of such documents, and to make all of the borrowings contemplated by
this Agreement.
Section 4.2. SUBSIDIARIES. The Company has no Subsidiaries.
Section 4.3. AUTHORITY, ETC. The execution and delivery by the
Company of each of the Loan Documents to which it is or is to become a party,
the performance by the Company of all of its agreements and obligations under
each of such documents and the making by the Company of all of the borrowings
contemplated by this Agreement as and when such borrowings are made, have been
duly authorized by all necessary action on the part of the Company and its
shareholders and do not (i) contravene any provision of its charter or by-laws,
(ii) conflict with, or result in a breach of any material term, condition or
provision of, or constitute a default under or result in the creation of any
mortgage, lien, pledge, charge, security interest or other encumbrance upon any
of its property under, any agreement, trust deed, indenture, mortgage or other
instrument to which it is or may become a party or by which it or any of its
property is or may become bound or affected, (iii) violate or contravene any
provision of any law, regulation, order or judgment of any court or governmental
or regulatory, bureau, agency or official except where such violation or
contravention would not materially adversely affect the Company and would not
have any effect on the enforceability of the Loan Documents, (iv) require any
waivers, consents or approvals by any of the creditors of the Company, or (v)
require any consents or approvals by any shareholders of the Company (except
such as will be duly obtained on or prior to the Closing Date and will be in
full force and effect on and as of the Closing Date), or (vi) require any
approval, consent, order, authorization or license by, or giving notice to, or
taking any other action with respect to, any governmental or regulatory
authority or agency under any provision of any applicable law, except those
actions which have been taken or will be taken prior to the Closing Date or
where the failure to do so would not result in a material adverse effect on the
Company and would not have any effect on the enforceability of the Loan
Documents.
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Section 4.4. BINDING EFFECT OF DOCUMENTS, ETC. The Company has duly
executed and delivered each of the Loan Documents to which it is a party and
each of such documents is in full force and effect. The agreements and
obligations of the Company contained in each of the Loan Documents to which it
is a party constitute its legal, valid and binding obligations enforceable
against it in accordance with their respective terms except as enforceability is
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of creditors' rights and
except to the extent that the availability of the remedy of specific performance
or injunctive relief is subject to the discretion of the court before which any
proceeding therefor may be brought.
Section 4.5. NO EVENTS OF DEFAULT, ETC. No Event of Default has
occurred and is continuing. No event has occurred and is continuing, and no
condition exists within the knowledge of the Company which would, with notice or
the lapse of time, or both, constitute an Event of Default.
Section 4.6. TITLE TO PROPERTIES; LEASES. Except as indicated on
Exhibit B hereto, the Company owns all of its assets reflected in the balance
sheet of the Company as at December 31, 1995, or acquired since that date
(except property and assets sold or otherwise disposed of in the ordinary course
of business since that date), subject to no mortgages, leases, liens or other
encumbrances except those permitted by Section 7.11 hereof.
Section 4.7. FINANCIAL STATEMENTS. There has been furnished to the
Banks Financial Statements of the Company and balance sheets and related
statements of income for each of the Company's Health Care Facilities which is
leased to UHS, in each case as of and for the year ended December 31, 1995,
together with Financial Statements of the Company as of and for the six months
ended June 30, 1996, certified in the case of the Financial Statements of the
Company by the Company's Chief Financial Officer or Treasurer. All of the
foregoing Financial Statements of the Company have been prepared in accordance
with GAAP and fairly present the financial condition and results of operations
of the Company, as at the close of business on the dates and for the periods
then ended. There are no contingent liabilities of the Company involving
material amounts which are not disclosed in its Financial Statements.
Section 4.8. NO MATERIAL CHANGES, FULL DISCLOSURE, ETC. Since
December 31, 1995, in the Company's reasonable belief there have occurred no
material adverse changes in the financial condition or business of the Company
as shown on or reflected in the balance sheet or footnotes thereto of the
Company at December 31, 1995, other than changes in the ordinary course of
business which have not had any material adverse effect either individually or
in the aggregate on the financial condition, properties or business of the
Company. No representation or warranty made by the Company in this Agreement,
the other Loan Documents or in any agreement instrument, document, certificate,
statement or letter furnished to the Banks or the Agent by or on behalf of the
Company in connection with any of the transactions contemplated by any of the
Loan Documents contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained
therein not misleading in light
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of the circumstances in which they are made. Except as disclosed in writing to
the Banks and the Agent, there is no fact known to the Company which, in the
Company's reasonable belief, materially adversely affects, or would in the
future materially adversely affect, the financial condition, properties or
business of the Company.
Section 4.9. PERMITS; PATENTS; COPYRIGHTS. The Company possesses all
franchises, patents, copyrights, trademarks, tradenames, licenses and permits
and rights in respect of the foregoing, adequate for the conduct of its business
substantially as now conducted without known conflict with any rights of others.
Section 4.10.LITIGATION. Except as described on Exhibit B, there are
no actions, suits, proceedings or investigations of any kind pending or
threatened against the Company before any court, tribunal or administrative
agency or board which, if adversely determined, might, either in any case or in
the aggregate materially adversely affect the financial condition, properties or
business of the Company or materially impair the right of the Company to carry
on business substantially as now conducted, or result in any substantial
liability not adequately covered by insurance, or which question the validity of
this Agreement or the Notes, or any action taken or to be taken pursuant hereto
or thereto.
Section 4.11.COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. The
Company is not violating any provision of its declaration of trust or by-laws or
any agreement or instrument by which it or any of its properties may be bound or
any decree, order, judgment, or, to the knowledge of the Company's Officers, any
statute, license, rule or regulation, including without limitation, the
provisions of the Code and related regulations governing real estate investment
trusts, ERISA and environmental laws, in a manner which could result in the
imposition of substantial penalties or materially and adversely affect the
financial condition, properties or business of the Company.
Section 0.00.XXX STATUS. The Company has made or fileD all federal
and state income and, all other tax returns, reports and declarations required
by any jurisdiction to which it is subject; and has paid all taxes and other
governmental assessments and charges shown or determined to be due on such
returns, reports and declarations, except those being contested in good faith;
and has set aside on its books provisions reasonably adequate for the payment of
all taxes for periods subsequent to the periods to which such returns, reports
or declarations apply. There are no unpaid taxes in any material amount claimed
to be due by the taxing authority of any jurisdiction, and the officers of the
Company know of no basis for any such claim.
Section 4.13.HOLDING COMPANY AND INVESTMENT COMPANY ACTS. The
Company is not a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company", as such terms are defined in
the Public Utility Holding Company Act of 1935; nor is it an "investment
company", or an "affiliated company" or a "principal underwriter" of an
"investment company", as such terms are defined in the Investment Company Act of
1940.
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Section 4.14.ABSENCE OF FINANCING STATEMENTS, ETC. ExcEPt as
indicated on Exhibit B hereto, there is no financing statement, security
agreement, chattel mortgage, real estate mortgage or other document executed by
the Company filed or recorded with any filing records, registry, or other public
office of any jurisdiction, which purports to cover, affect or give notice of
any present or possible future lien on, or security interest in, any assets or
property of the Company or rights thereunder.
Section 4.15.CERTAIN TRANSACTIONS. Except for arm's length
transactions pursuant to which the Company makes payments in the ordinary course
of business upon terms no less favorable than the Company could obtain from
third parties, none of the officers, directors, or employees of the Company is
presently a party to any transaction with the Company having a value in excess
of $250,000 (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Company, any corporation,
partnership, trust or other entity in which any officer, director, or any such
employee has a substantial interest or is an officer, director, trustee or
partner.
Section 4.16.PENSION PLANS. The Company neither maintains nor
contributes to any Pension Plan.
Section 5. EFFECTIVE DATE. This Amended and Restated Revolving
Credit Agreement shall be effective as of the date (the "Effective Date") on
which all of the conditions set forth below shall have been satisfied or waived
in writing by the Agent and each of the Banks:
(a) Each Bank, the Agent and the Company shall have executed
and delivered this Amended and Restated Revolving Credit Agreement.
(b) The Banks shall have received from the Company:
(i) a certificate of recent date of the Secretary of
State of Maryland as to the good standing of the Company;
(ii) a certificate from the President, Chief Financial
Officer or Treasurer of the Company certifying that the
representations and warranties of the Company set forth herein are
true and correct both on the date hereof and as of the Effective
Date as if such representations and warranties were made on the
Effective Date.
(iii) a certificate from the Secretary or an Assistant
Secretary of the Company certifying as to the declaration of trust
and bylaws of the Company and the resolutions of the Board of
Directors of the Company authorizing the
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execution, delivery and performance of this Amended and Restated
Revolving Credit Agreement;
(iv) an incumbency certificate from the Secretary or an
Assistant Secretary of the Company certifying to the signatures and
status of the officers signing this Amended and Restated Revolving
Credit
Agreement;
(v) Notes, each duly executed by the Company and dated
the Effective Date, equal in principal amount to the respective
amounts of the Commitments (such Notes to be delivered in exchange
for the existing Notes outstanding under the Original Credit
Agreement); and
(vi) an opinion of counsel for the Company,
substantially in the form of Exhibit C hereto and otherwise
satisfactory to the Agent and the Banks.
(c) NationsBank, N.A. shall have received from The First
National Bank of Boston an assignment of the pro rata share of The First
National Bank of Boston in the Loans and any Letters of Credit outstanding under
the Original Credit Agreement, such assignment to be in such form as is
acceptable to NationsBank, N.A.
(d) The Company shall have paid to the Banks and the Agent all
closing fees required to be paid prior to or on the Effective Date in connection
with the execution and delivery of this Agreement, together with all legal fees
and expenses incurred by the Agent in connection with this Agreement.
Section 6. CONDITIONS TO LOANS. The obligation of the Banks to make
any Loan shall be subject to the satisfaction of the following conditions
precedent:
Section 6.1. LEGALITY OF TRANSACTIONS. It shall not be unlawful (a)
for any Bank to perform any of its agreements or obligations under any of the
Loan Documents to which such Bank is a party on the Drawdown Date of such Loan
or (b) for the Company to perform any of its material agreements or obligations
under any of the Loan Documents to which the Company is a party on such date.
Section 6.2. REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by or on behalf of the Company to the Banks
in this Agreement or any other Loan Document or incorporated by reference herein
or therein shall be true and correct in all material respects when made and
shall, for all purposes of this Agreement, be deemed to be repeated on and as of
the date of the Company's notice of borrowing for such Loan and on and as of the
Drawdown Date of such Loans and shall be true and correct in all material
aspects on and as of each of such dates, except, in each case, as affected by
the consummation of the transactions contemplated by the Loan Documents.
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Section 6.3. PERFORMANCE, ABSENCE OF DEFAULT, ETC. The Company shall
have duly and properly performed, complied with and observed in all material
respects each of its covenants, agreements and obligations contained in Section
7 hereof, and shall have duly and properly performed, complied with and observed
in all material respects its covenants, agreements, and obligations in all other
articles of this Agreement and any of the other Loan Documents to which it is a
party or by which it is bound on the Drawdown Date for such Loan. No event shall
have occurred on or prior to such date and be continuing on such date, and no
condition shall exist on such date, which constitutes a Default or an Event of
Default.
Section 6.4. MATERIAL ADVERSE CHANGE. There shall have been no
material adverse change in the financial condition, assets, nature of the
assets, operations or prospects of the Company since the date of the most
recently delivered Financial Statements of the Company.
Section 6.5. NOTICE OF BORROWING. The Company shall provide the
Agent and the Banks with notice of any Loans to be made as set forth in Section
2.4 herein.
Section 6.6. PROCEEDINGS AND DOCUMENTS. All corporate, governmental
and other proceedings in connection with the transactions contemplated by the
Loan Documents and all instruments and documents incidental thereto shall be in
form and substance reasonably satisfactory to the Agent and the Agent shall have
received (with copies for each Bank) all such counterpart originals or certified
or other copies of all such instruments and documents as the Agent shall have
reasonably requested.
Section 6.7. GOVERNMENTAL REGULATION. Each Bank shall have received
such statements in substance and form reasonably satisfactory to such Bank as
such Bank shall require for the purpose of compliance with any applicable
regulations of the Comptroller of the Currency or the Board of Governors of the
Federal Reserve System.
Section 7. COVENANTS OF THE COMPANY. The Company covenants and
agrees that, so long as any portion of any Loan or Note or Letter of Credit is
outstanding or the Banks have any obligation to make any Loan or issue any
Letter of Credit hereunder, unless the Banks otherwise agree, in writing:
Section 7.1. PUNCTUAL PAYMENT. The Company will duly and punctually
pay or cause to be paid the principal and interest on the Loans, the Commitment
Fees, Facility Fees, any other fees payable in connection herewith and any other
amounts payable hereunder, all in accordance with the terms of this Agreement,
the Notes, and the Letter of Credit Documents.
Section 7.2. LEGAL EXISTENCE, ETC. The Company will maintain its
legal existence as a real estate investment trust and qualify as such under the
Code and will maintain its good standing under the laws of its jurisdiction of
organization, maintain its qualification to do business in each state in which
the failure to do so would have a material adverse effect on the financial
condition, properties or business of the Company, and maintain all of its rights
and
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franchises reasonably necessary to the conduct of its business. The Company will
furnish to the Agent and each Bank copies of all amendments to its declaration
of trust, by-laws or other organizational documents promptly upon their adoption
by the Company or its shareholders.
Section 7.3. FINANCIAL STATEMENTS, ETC. The Company will deliver to
the Agent and each Bank:
(a) within 90 days after the close of each fiscal year of the
Company, the Financial Statements of the Company for such year, setting forth in
comparative form the corresponding figures for the preceding year, accompanied
by a report and unqualified opinion of Xxxxxx Xxxxxxxx & Co., Inc. or other firm
of independent certified public accountants selected by the Company and
acceptable to the Agent;
(b) within 45 days after the end of each fiscal quarter of the
Company, other than the final quarter in a fiscal year, (i) unaudited Financial
Statements of the Company, as of the end of such period and for such period then
ended, setting forth, in comparative form the corresponding figures for the
comparable period in the preceding fiscal year, and (ii) Financial Statements of
the Company for the period from the beginning of the current fiscal year to the
end of such period certified by the Chief Financial Officer or Treasurer of the
Company as having been prepared in accordance with GAAP (subject only to changes
from audit and year-end adjustments);
(c) at the delivery of each quarterly and annual Financial
Statement, a compliance certificate, substantially in the form of Exhibit D
hereto, showing compliance by the Company with the covenants set forth in
Sections 7.5 - 7.8, and 7.10 hereof, together with a calculation showing
the Debt to Adjusted Cash Flow Available for Debt Service Ratio as of the end of
such quarter;
(d) at the time of delivery of each quarterly and annual statement,
a certificate, executed by the chief executive officer or Chief Financial
Officer or Treasurer of the Company, stating that such officer has caused this
Agreement to be reviewed and has no knowledge of any Default by the Company
during such quarter or at the end of such year or, if such officer has such
knowledge, specifying each Default and the nature thereof;
(e) promptly upon receipt thereof, copies of all management letters
and other material reports which are submitted to the Company by its independent
accountants in connection with any annual or interim audit of the Company made
by such accountants;
(f) as soon as practicable but, in any event, within ten (10)
Business Days after the issuance thereof, copies of such other financial
statements and reports sent by the Company to its shareholders, copies of all
press releases, and copies of all regular and periodic reports which the Company
may be required to file with the Securities and Exchange
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Commission or any similar or corresponding governmental commission, department
or agency substituted therefor;
(g) promptly after the effective date, copies of any new, revised or
updated prospectus used by the Company to effect sales of its shares; and
(h) with reasonable promptness, such other information related to
the Company as the Agent or any Bank may reasonably request in writing.
Section 7.4. HEALTH CARE FACILITIES - FINANCIAL STATEMENTS, ETC. The
Company will use its best efforts to obtain from each operator of a Health Care
Facility leased by the Company or on which the Company holds a Mortgage Loan, a
consent to deliver to the Agent and each Bank copies of the financial
statements, notices and information described in (a), (b) and (d) below. The
Company will deliver to the Agent and each Bank:
(a) upon the later of receipt by the Company or, in the case of
quarterly information, 45 days after the close of the quarter, or in the case of
annual information, 90 days after the close of the year, copies of any quarterly
or annual balance sheets and statements of income of any operator of any Health
Care Facility leased by the Company or on which the Company holds a Mortgage
Loan and copies of any quarterly or annual balance sheets and statements of
income of any Person which is a guarantor of any such lease or loan, including
in each case a calculation by the Chief Financial Officer or Treasurer of the
Company of the applicable Facility Coverage Ratio;
(b) promptly upon receipt thereof by the Company, any notice of
deficiency with respect to any of its Health Care Facilities from any
governmental authority, licensing board or agency, or any notice of any inquiry,
proceeding, investigation, or other action with respect to any of its Health
Care Facilities, including, without limitation, any notice from any federal,
state or local environmental agency or board of potential liability, that could
materially affect the financial condition, properties or business of the
Company;
(c) upon request, an appraisal, made at the Company's expense
(except as limited hereby) in form and substance satisfactory to the Agent, of
any Health Care Facility of the Company (other than those leased to UHS or a UHS
Subsidiary) that has a Facility Coverage Ratio of less than 1.6 to 1.0 for the
most recent four fiscal quarters; provided that the Company shall not be
required to pay for more than one appraisal of any single Health Care Facility
during any period of twenty-four (24) consecutive months; and
(d) with reasonable promptness, such other information related to
the operators of such Health Care Facilities as the Agent or any Bank may
reasonably request in writing.
Section 7.5. TANGIBLE NET WORTH. The Company will maintain at all
times Tangible Net Worth of not less than $90,000,000.
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Section 7.6. RATIO OF TOTAL LIABILITIES TO TANGIBLE NET WORTH. The
Company will not permit the ratio of Total Liabilities to Tangible Net Worth to
exceed 1.0 to 1.0 at any time.
Section 7.7. DEBT SERVICE COVERAGE RATIO. The CompANY will not
permit the Debt Service Coverage Ratio to be less than 1.50 to 1.0 at any time.
Section 7.8. DEBT TO CASH FLOW AVAILABLE FOR DEBT SERVICE. The
Company will not permit the ratio of its Debt to Cash Flow Available for Debt
Service (for the four most recently ended fiscal quarters) to be greater than
3.5 to 1.0 at any time.
Section 7.9. INDEBTEDNESS. The Company will not incUR OR permit to
exist or remain outstanding any Indebtedness to any Person provided, however,
that the Company may incur or permit to exist or remain outstanding:
(a) Indebtedness of the Company arising under this Agreement or the
other Loan Documents;
(b) Indebtedness in respect of taxes, including withholding and
payroll taxes, assessments, governmental charges or levies, and claims for
labor, materials and supplies to the extent that payment therefor is not at the
time required to be made in accordance with the provisions of Section 7.20;
(c) Indebtedness incurred in connection with the acquisition after
the date hereof of any real or personal property by the Company provided that
the aggregate principal amount of all such Indebtedness shall not exceed the
lesser of (i) 100% of the aggregate cost, to the Company of the real or personal
property so acquired and (ii) the fair market value of such acquired property,
determined on or about the time of such acquisition on the basis of an MAI
appraisal or such other valuation method as may from time to time be acceptable
to the Majority Banks (it being understood that an MAI appraisal shall be a
valuation method which is acceptable to the Majority Banks) and further provided
that after giving effect to such Indebtedness the Company would be in compliance
with Section 7.10;
(d) Indebtedness in respect of leases of real and personal property
by the Company provided that the aggregate amount due is not greater than
$2,000,000 in any one fiscal year; and
(e) Indebtedness outstanding on the date of the Original Credit
Agreement and described on Exhibit D of such Agreement.
Section 7.10.SECURED DEBT. The Company will not incur OR permit to
exist any Indebtedness after the date hereof which is secured by any mortgage,
pledge, security interest or other lien or encumbrance on any of its property if
(i) the ratio of unsecured Indebtedness of the Company including, without
limitation, the Loans hereunder, to the sum of the Facility Cash
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Flow Available for Debt Service generated by the operation of all the
Unencumbered Properties for the four fiscal quarters of the Company then most
recently ended exceeds 2.5 to 1.0 or (ii) the aggregate amount of all such
secured Indebtedness exceeds or would exceed $20,000,000.
Section 0.00.XXXXXXXX INTERESTS AND LIENS; NEGATIVE PLEDGE. The
Company will not create or permit to exist any mortgage, pledge, security
interest or other lien or encumbrance on any of its property except:
(a) liens arising from attachments or similar proceedings, pending
litigation, judgments or taxes or assessments in any such event whose validity
or amount is being contested in good faith by appropriate proceedings and for
which adequate reserves have been established and are maintained in accordance
with GAAP, or taxes and assessments which are not due and delinquent;
(b) liens of carriers, warehousemen, mechanics and materialmen and
other like liens;
(c) pledges or deposits made in connection with workmen's
compensation, unemployment or other insurance, old age pensions, or other Social
Security benefits, and good faith deposits in connection with tenders, contracts
or leases to which it is a party or deposits to secure, or in lieu of, surety,
penalty or appeal bonds, performance bonds and other similar obligations;
(d) such minor defects, irregularities, encumbrances, easements,
rights of way, and clouds on title as normally exist with respect to similar
properties which do not materially impair the property affected thereby for the
purpose for which it was acquired;
(e) liens existing on the date of the Original Credit Agreement and
described on Exhibit F of such Agreement and purchase money security interests
in or purchase money mortgages on, or mortgages given in connection with the
contemporaneous refinancing of, real property acquired after the date hereof to
secure purchase money indebtedness of the type incurred in connection with the
acquisition or refinancing of such property, which security interests or
mortgages cover only the real or personal property so acquired or refinanced and
proceeds thereof and reasonable attachments and accessions thereto; and
(f) liens permitted by Section 7.10.
Section 7.12.NEGATIVE NEGATIVE PLEDGE. The Company will not enter
into any commitment or agreement with any other party that limits or impairs the
ability of the Company to grant security interests, liens or mortgages in favor
of the Banks, except that this Section 7.12 shall not be deemed to prohibit the
granting of any lien permitted by Section 7.10.
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Section 7.13.GUARANTEES. The Company will not guarantee or otherwise
in any way become or be responsible for indebtedness or obligations (including
working capital maintenance, take-or- pay contracts, etc.) of any other Person,
contingently or otherwise, except:
(a) the endorsement of negotiable instruments of deposit in the
normal course of business;
(b) guarantees by the Company issued to secure Indebtedness
permitted by Sections 7.9 and 7.10; and
(c) guarantees (other than those described in (a) and (b) of this
Section) made in the ordinary course of business which shall not at any time
exceed $2,000,000 in the aggregate.
Section 7.14.NOTICE OF LITIGATION AND JUDGMENTS. The Company will
give notice to the Agent and each of the Banks in writing, in form and detail
satisfactory to the Banks, within ten (10) Business Days of becoming aware of
any litigation or proceedings threatened in writing or any pending litigation
and proceedings affecting the Company or to which the Company is or becomes a
party involving an uninsured or unindemnified claim of more than $500,000
against the Company and stating the nature and status of such litigation or
proceedings. The Company will give notice, in writing, in form and detail
satisfactory to the Banks, within ten (10) Business Days of any judgment, final
or otherwise, against the Company in an amount in excess of $500,000.
Section 7.15.NOTICE OF DEFAULTS. The Company will give notice to the
Agent and each of the Banks immediately upon becoming aware of the occurrence of
any Default or Event of Default under this Agreement. If any Person shall give
any notice or take any other action in respect of a claimed default (whether or
not constituting an Event of Default) under this Agreement or any other note,
evidence of indebtedness, indenture or other obligation to which or with respect
to which the Company is a party or obligor, whether as principal or surety, and
such claimed default has potential total liability in excess of $500,000 the
Company shall forthwith give written notice thereof to each of the Banks,
describing the notice or action and the nature of the claimed default.
Section 7.16.NOTICES WITH REGARD TO HEALTH CARE OPERATORS. The
Company will give notice to the Agent and each of the Banks, and will provide
information to the Agent and each of the Banks, of the types set forth in
Sections 7.14 and 7.15 herEOF as to each operator of Health Care Facilities
owned by the Company or on which the Company holds a mortgage, provided, that
such operator consents in writing to the release of such information. The
Company will use its best efforts to acquire the written consent of each
operator for the release of such information.
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Section 7.17.BOOKS AND RECORDS. The books and records relating to
the financial affairs of the Company shall at all times be maintained in
accordance with GAAP consistently applied.
Section 7.18.MAINTENANCE OF PROPERTIES. The Company shALL maintain
(or cause to be maintained) each of its properties in good physical condition
and shall make (or cause to be made) all necessary repairs, replacements and
renewals thereon.
Section 0.00.XXXXXXXXX. The Company will require that THE lessees of
its properties maintain at all times with financially sound and reputable
insurers insurance with respect to their properties and business and against
such casualties and contingencies and in such types and such amounts as shall be
in accordance with sound business practices and reasonably satisfactory to the
Agent. Without limiting the foregoing, the Company will cause such lessees to
(i) keep all of its physical property insured against fire and extended coverage
risks in amounts and with deductibles equal to those generally maintained by
businesses of similar size engaged in similar activities in similar geographic
areas, (ii) maintain all such workers' compensation or similar insurance as may
be required by law, and (iii) maintain, in amounts and with deductibles equal to
those generally maintained by businesses of similar size engaged in similar
activities in similar geographic areas, general public liability insurance
against claims for bodily injury, death or property damage occurring on, in or
about the properties of the Company and business interruption insurance. In the
event that any lessee shall fail to maintain such insurance, the Company will
maintain such insurance. The Company will notify the Agent and each Bank of any
cancellation of any such insurance. Evidence of all renewals or replacements of
such insurance from time to time in force, satisfactory to the Agent shall be
delivered to the Agent before the expiration date of the then current insurance.
Section 7.20.TAXES. The Company will pay all taxes or other
assessments or governmental charges or levies imposed upon it or upon its income
or profits or upon its property prior to the time when any penalties or interest
(except interest during extensions of time for filing of federal income tax
returns not in excess of six months) accrue with respect thereto, as well as all
claims for labor, materials or supplies that if unpaid might by law become a
lien or charge upon any of its property unless, in any such case, the amount,
applicability or validity of such amounts is contested in good faith by
appropriate proceedings and other appropriate action and an adequate reserve
therefor has been established and is maintained in accordance with GAAP. The
Company will also pay all such taxes, assessments, charges, levies or claims
forthwith upon the commencement of proceedings to foreclose any lien that may
have attached as security therefor.
Section 7.21.COMPLIANCE WITH LAWS, CONTRACTS, AND LICENSES. The
Company will (i) comply with all laws, including CERCLA and environmental laws,
rules, regulations, orders, writs, judgments, injunctions, decrees or awards to
which it may be subject, the Company's noncompliance with which would have a
material adverse effect on the financial condition, properties or business of
the Company or the ability of the Company to fulfill its obligations
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under this Agreement or the other Loan Documents, including, without limitation,
the provisions of the Code and related regulations governing real estate
investment trusts, as the same may be as amended and in effect from time to time
and (ii) promptly obtain, maintain, apply for renewal, and not allow to lapse,
any authorization, consent, approval, license or order, and accomplish any
filing or registration with, any court or judicial, administrative or
governmental authority which may be or may become necessary in order that it
perform in all material respects all of its obligations under this Agreement or
the other Loan Documents and in order that the same may be valid and binding and
effective in accordance with their terms and in order that the Banks may be able
freely to exercise and enforce any and all of their rights under this Agreement
or the other Loan Documents, (iii) comply with the provisions of its charter
documents and by-laws and (iv) comply with all agreements and instruments by
which it or any of its properties may be bound.
Section 7.22.ACCESS. The Company will permit any Bank, BY its
representatives and agents, to inspect any of the properties, including, without
limitation, corporate books, computer files and tapes and financial records of
the Company to examine and make copies of the books of accounts and other
financial records of the Company, and to discuss the affairs, finances and
accounts of the Company with, and to be advised as to the same by, its officers
at such reasonable times and intervals as such Bank may designate. Each Bank
agrees that it will treat in confidence the information obtained during such
inspection which is designated by the Company as confidential and will not,
without the consent of the Company, disclose such information to any third party
and, if any representative or agent of such Bank shall not be an employee of
such Bank or an affiliate of such Bank, such designee shall be reputable and of
recognized standing and shall agree in writing to treat in confidence the
information obtained during any such inspection and, without the prior written
consent of the Company, not to disclose such information to any third party or
make use of such information for personal gain. Notwithstanding the foregoing,
the Company hereby authorizes the Banks to disclose information obtained
pursuant to this Agreement (i) to other banks or financial institutions who are
participants or potential participants in the Loans made or to be made
hereunder; provided, that such participants or potential participants shall
agree in writing to treat in confidence the information so disclosed and the
Company will be furnished with copies of such agreements, and (ii) where
required or requested by governmental or regulatory authorities; provided,
however, that this authorization shall not be deemed to be a waiver of any
rights which the Company has or may have under the Federal Right to Financial
Privacy Act of 1978, as in effect from time to time, to object to the disclosure
by any Bank of any such information.
Section 7.23.ERISA COMPLIANCE. The Company will not permit any
employee pension benefit plan (as that term is defined in Section 3 of ERISA)
maintained by the Company to (x) engage in any "prohibited transaction" as such
term is defined in Section 4975 of the Internal Revenue Code of 1986, as
amended, that is likely to result in a material liability for the Company; or
(y) incur any "accumulated funding deficiency", as such term is defined in
Section 302 of ERISA, whether or not waived; or (z) terminate any such benefit
plan in a manner which could result in the imposition of a lien or encumbrance
on the assets of the Company pursuant to Section 4068 of ERISA.
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Section 7.24.RESERVES. The Company will maintain reserves,
appropriate for the Company, for depreciation, taxes and other expenses or
liabilities in accordance with GAAP.
Section 7.25.DISTRIBUTIONS. The Company will not make ANY
Distributions other than (a) Distributions required by the Code and related
regulations governing real estate investment trusts and (b) Distributions to
shareholders in excess of the amounts permitted by clause (a) above provided
that no Default or Event of Default then exists or would result from such
payment. In no event may the Company make any Distributions with respect to any
fiscal year that exceed ninety-five percent (95%) of the Company's Cash
Available for Distributions for such fiscal year unless and to the extent that
such Distributions are required to be made by the Code and related regulations
governing real estate investment trusts.
Section 0.00.XXXXXXXXXXX. The Company will not make or maintain any
Investment, except for Investments which consist of:
(a) obligations having an original maturity of not greater than
three years issued or guaranteed as to principal and interest by the United
States of America;
(b) certificates of deposit issued by any of the Banks or any other
bank organized under the laws of the United States of America or any state
thereof and having capital and unimpaired surplus of at least $50,000,000 or of
foreign subsidiaries of such banks;
(c) commercial paper or finance company paper which is rated not
less than BBB or its equivalent by Standard & Poor's Corporation or Xxxxx'x
Investor Services, Inc.;
(d) repurchase agreements secured by any one or more of the
Investments permitted by paragraphs (a), (b) or (c) above;
(e) Direct or indirect Investments in domestic (United States)
Health Care Facilities which Investments either (i) existed on December 31,
1993, or (ii) were or are made after such date, provided that no Investment in
any one Health Care Facility made after such date shall be made or maintained
with respect to any Health Care Facility the acquisition cost of which exceeds
the lesser of $20,000,000 or the fair market value of the acquired property,
determined on the basis of an MAI appraisal or such other valuation method as
may from time to time be acceptable to the Majority Banks. (Any indirect
Investment shall be restricted to an Investment made by the Company in a Person
engaged exclusively in the business of owning or operating domestic Health Care
Facilities and in which the Company has an equity interest of at least 25%.)
(f) Mortgage Loans permitted by Section 7.27; and
(g) Construction Loans permitted by Section 7.28.
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Section 0.00.XXXXXXXX LOANS.
The Company will not permit at any time the aggregate outstanding
principal amount of the Mortgage Loans held by the Company to exceed $30,000,000
and will not make any Mortgage Loan in an original principal amount in excess of
$20,000,000. In no event may the Company provide any Mortgage Loan to any Person
except on a full recourse basis to an owner or operator of a domestic (United
States) Health Care Facility and except upon using the Company's best efforts to
obtain the agreement and consent of such Person to provide its quarterly and
annual balance sheets and income statements to the Company for delivery to the
Agent and each Bank.
Section 0.00.XXXXXXXXXXXX LOANS.
(a) In the event that any portion of the Loans is to be used by the
Company to finance the construction of Health Care Facilities, the Company will
monitor such construction to insure that all approvals, consents, waivers,
orders, agreements, acknowledgments, authorizations, permits and licenses
required under any law, ordinance, code, order, rule or regulation of any
governmental authority, or under the terms of any restriction, covenant or
easement affecting the construction project, or otherwise necessary, for the
ownership and acquisition of the subject properties and the improvements
thereon, the construction and equipping of the improvements being constructed on
the subject properties, and the use, occupancy and operation of the construction
project as a Health Care Facility following completion of construction of the
improvements on the subject property, have been obtained, whether from a
governmental authority or other Person. Further, the Company will give notice to
the Agent and each of the Banks immediately after becoming aware that any
construction project will likely not be completed in a timely manner or on
budget. The Company shall from time to time deliver such further information and
take such further action as may be reasonably requested by the Agent or any Bank
to effect the purposes of this Section 7.28.
(b) The Company will not permit at any time the aggregate
outstanding principal amount of Construction Loans to exceed $15,000,000. In no
event may the Company provide any Construction Loans to any Person except on a
full recourse basis to an owner or operator of a domestic (United States) Health
Care Facility and except upon using the Company's best efforts to obtain the
agreement and consent of such Person to provide its quarterly and annual balance
sheets and income statements to the Company for delivery to the Agent and each
Bank.
Section 7.29.ENVIRONMENTAL AUDITS. The Company will not make any
Investment, Mortgage Loan or Construction Loan otherwise permitted by Sections
7.26(e), 7.27 or 7.28, respectively, unless the Company shall have first
received a phase I environmental audit report with respect to the property
involved, which audit shall have been conducted not earlier than twenty-four
(24) months prior to the date of the transaction, a copy of such audit shall
have been furnished to the Banks, and such audit shall not have reported or
uncovered any environmental
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matters which could have a material adverse effect on such property or on the
financial condition, properties or business of the Company.
Section 7.30.MERGER, CONSOLIDATION AND DISPOSITION OF ASSETS. The
Company will not at any time merge or consolidate with or into any Person or
sell or otherwise dispose of any Health Care Facility of the Company leased to
UHS or to a UHS Subsidiary, except that the Company may sell, if after giving
effect to such sale no Default or Event of Default exists or would result as a
consequence thereof, any two of such Health Care Facilities (other than the
McAllen Medical Center located in McAllen, Texas).
Section 0.00.XXXX AND LEASEBACK. The Company will not enter into any
arrangement, directly or indirectly, whereby the Company shall sell or transfer
any property owned by it and then or thereafter lease such property or lease
other property that the Company intends to use for substantially the same
purpose as the property being sold or transferred.
Section 7.32.USE OF PROCEEDS. After the date of this Agreement the
Company will use the proceeds of the Loans (a) for working capital purposes, (b)
to make Investments permitted by Section 7.26(e), (c) to provide mortgage and
construction financing permitted by Sections 7.27 and 7.28, and (d) to
make Distributions permitted by Section 7.25. The Company will not use the
proceeds of any Loan, either directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of buying or carrying margin stock within the
meaning of Regulation U of the Board of Governors of the Federal Reserve System,
as amended from time to time.
Section 7.33.FURTHER ASSURANCES. The Company shall at any time or
from time to time execute and deliver such further instruments and take such
further action as may reasonably be requested by the Agent or any Bank, in each
case further and more perfectly to effect the purposes of this Agreement and the
other Loan Documents.
Section 8. EVENTS OF DEFAULT; ACCELERATION. If any of the following
events (an "Event of Default") has occurred and is continuing:
(a) if the Company shall fail to pay any principal of or interest on
the Loans or any other amount payable hereunder or under the Letter of Credit
Documents when the same shall become due and payable, whether at the stated date
of maturity or any accelerated date of maturity or at any other date fixed for
payment;
(b) if the Company shall fail to comply with any of its covenants
contained in Sections 7.2, 7.5-7.13, or 7.25-7.32;
(c) if the Company shall fail to perform any term, covenant or
agreement contained herein or in the Letter of Credit Documents (other than
those specified in subSection s (a) and (b) above) and the continuance of such
failure shall exist for 30 days after written notice of such failure has been
given to the Company by the Agent;
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(d) if any representation or warranty of the Company in this
Agreement or in the Letter of Credit Documents or in any document or instrument
delivered pursuant to or in connection with this Agreement or the Letter of
Credit Documents shall prove to have been false in any material respect upon the
date when made or deemed to have been made or repeated;
(e) if the Company shall fail to make any payment due on any
obligation for borrowed money (having a total amount outstanding in excess of
$500,000), or shall fail to observe or perform any material term, covenant or
agreement contained in any agreement by which it is bound, evidencing or
securing such obligation and the effect of such failure could or would have
permitted (assuming the giving of appropriate notice if required) the holder or
holders thereof or a trustee for such holder or holders or of any obligations
issued thereunder to accelerate the maturity thereof;
(f) The Company shall be involved in financial difficulties as
evidenced:
(i) by its admission in writing of its inability to pay its
debts generally as they become due;
(ii) by its commencement of a voluntary case under Title 11 of
the United States Code as from time to time in effect, or by its
authorizing, by appropriate proceedings of its board of directors or
other governing body, the commencement of such a voluntary case;
(iii) by its filing an answer or other pleading admitting or
failing to deny the material allegations of a petition filed against
it commencing an involuntary case under Title 11, or seeking,
consenting to or acquiescing in the relief therein provided, or by
its failing to controvert or challenge in a timely manner the
material allegation of any such petition;
(iv) by the entry of an order for relief against it in any
involuntary case commenced under Title 11 which remains undischarged
or unstayed for more than sixty (60) days;
(v) by its seeking relief as a debtor under any applicable
law, other than Title 11, of any jurisdiction relating to the
liquidation or reorganization of debtors or to the modification or
alteration of the rights of creditors, or by its consenting to or
acquiescing in such relief;
(vi) by entry of an order by a court of competent jurisdiction
(A) finding it to be bankrupt or insolvent or (B) ordering or
approving its liquidation, reorganization or any modification or
alteration of the rights of its creditors which remains undischarged
or unstayed for more than sixty (60) days;
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(vii) by the entry of an order by a court of competent
jurisdiction assuming custody of, or appointing a receiver or other
custodian for, all or a substantial part of its property which
remains undischarged or unstayed for more than sixty (60) days; or
(viii) by its making an assignment for the benefit of, or
entering into a composition with, its creditors, or appointing or
consenting to the appointment of a receiver or other custodian for
all or a substantial part of its property;
(g) if there shall remain in force, undischarged, unsatisfied and
unstayed, for more than sixty days, whether or not consecutive, any final
judgment against the Company which, with other outstanding final judgments,
undischarged, against such Person(s) exceeds $500,000 in aggregate amount with
respect to the Company;
(h) if UHS of Delaware, Inc., a subsidiary of UHS, shall cease to be
the real estate investment trust advisor to the Company and a new advisor
satisfactory to each of the Banks has not been appointed, or a group of managers
satisfactory to each of the Banks has not been hired, within ninety (90) days of
such cessation;
(i) if any Person or group of Persons (within the meaning of Section
13 or 14 of the Securities Exchange Act of 1934, as amended) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission under said Act) of thirty percent (30%) or
more of the outstanding shares of common stock of the Company; or, during any
period of twelve consecutive calendar months, individuals who were directors of
the Company on the first day of such period shall cease to constitute a majority
of the board of directors of the Company;
(j) if any guarantee by UHS of any lease by the Company to a UHS
Subsidiary is disavowed, terminated, or ceases to be in full force and effect,
or is waived or amended without the prior written consent of the Banks (other
than the termination of a guarantee of such a lease in connection with the sale
of a Health Care Facility permitted by Section 7.30); or
(k) any lease by the Company to a UHS Subsidiary is terminated prior
to its stated term or is amended or compliance by the lessee is waived, without
the prior written consent of the Banks (other than the termination of a lease of
a Health Care Facility in connection with a sale of such Health Care Facility
permitted by Section 7.30);
then, and in any such event, unless the same shall be cured or waived, the Agent
shall, upon the request of the Majority Banks, by notice in writing to the
Company, terminate this Agreement and upon such termination the Banks shall have
no further obligation to make Loans to the Company or issue Letters of Credit
for the account of the Company, and shall declare all Obligations, including,
without limitation the Notes, to be, and they shall thereupon forthwith
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mature and become, immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived by
the Company; provided, that in the event of any Event of Default described in
Section 8(f) or Section 8(g) hereof, all Obligations shall become immediately
due and payable automatically, and all obligations of the Banks to make Loans or
issue Letters of Credit shall automatically terminate, without any requirement
of notice from the Banks. To the extent that the Obligations accelerated
hereunder relate to Letters of Credit, the amount becoming due and payable shall
be the aggregate outstanding amount of the Letters of Credit, whether or not any
drawings or claims have been presented thereunder. No termination of the credit
hereunder shall relieve the Company of any Obligations or any of its existing
obligations to any of the Banks arising under other agreements or instruments.
No remedy herein conferred upon the Banks is intended to be exclusive of any
other remedy and each and every remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing at
law or in equity or by statute or any other provision of law.
Section 9. SETOFF; SHARING. Regardless of the adequacy of any
collateral, any deposits or other sums credited by or due from the Banks to the
Company and any securities or other property of the Company in the possession of
the Banks may be applied to or set-off against the payment of Obligations of the
Company hereunder, under the Notes and any and all other liabilities, direct, or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, of the Company to the Banks at any time. Each Bank agrees to
promptly notify the Company, the Agent and the other Banks after any such
set-off and application made by such Bank, provided that the failure to give
such notice shall not affect the validity of such set-off and application. Each
Bank agrees with the other Banks that if such Bank shall receive from the
Company or any other source whatsoever, whether by voluntary payment, exercise
of the right of set-off, counterclaim, cross-action or enforcement of any claim
evidenced by the Notes or this Agreement, or by proof thereof in bankruptcy,
reorganization, liquidation, receivership or similar proceedings or otherwise,
and retain and apply to the payment of the amounts owing with respect to the
Notes or to any amounts due to such Bank under this Agreement any amount which
is in excess of its ratable portion of the payments received by all of the
Banks, then such Bank will make such dispositions and arrangements with each
other Bank with respect to such excess, either by way of distribution until the
amount of such excess has been exhausted, assignment of claims, subrogation or
otherwise, as shall result in each such Bank receiving in respect of its Notes
and the amounts due such Bank under this Agreement its ratable share of such
payments; provided, however, that if all or any part of such excess payment is
thereafter recovered from such Bank, such disposition and arrangements shall be
rescinded and the amount restored to the extent of such recovery, but without
interest.
Section 10. THE AGENT
Section 10.1.APPOINTMENT OF AGENT, POWERS AND IMMUNITIES. Each Bank
hereby irrevocably appoints and authorizes the Agent to act as its agent under
the Loan Documents with such powers as are expressly delegated to the Agent by
the terms of this Agreement and the other Loan Documents, together with such
other powers as are reasonably incidental thereto. The
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Agent shall not have any duties or responsibilities or any fiduciary
relationship with any Bank except those expressly set forth in the Loan
Documents. The relationship between the Agent and the Banks is that of agent and
principal only, and nothing contained in this Agreement or any of the other Loan
Documents shall be construed to constitute the Agent as trustee for any Bank.
The Agent shall not be responsible to the Banks for any recitals, statements,
representations or warranties made by the Company or any other Person whether
contained herein or in any of the other Loan Documents or otherwise or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any of the other Loan Documents or any other document referred
to or provided for herein or therein or for any failure by the Company or any
other Person to perform its obligations hereunder or thereunder or in respect of
the Notes. The Agent may employ agents and attorneys and shall not be
responsible to the Banks for the negligence or misconduct of any such agents or
attorneys selected by it with reasonable care. Neither the Agent nor any of its
directors, officers, employees or agents shall be responsible for any action
taken or omitted to be taken by it or them hereunder or under any of the other
Loan Documents or in connection herewith or therewith, or be responsible to the
Banks for the consequences of any oversight or error of judgment whatever,
except for its or their own gross negligence or willful misconduct. The Agent in
its separate capacity as a Bank shall have the same rights and powers hereunder
as any other Bank.
Section 00.0.XXXXXXXX BY AGENT. The Agent shall be entitled to rely
upon any certificate, notice or other document (including any cable, telecopy,
telefax, telegram or telex) believed by it to be genuine and correct and to have
been signed or sent by or on behalf of the proper Person or Persons, and upon
advice and statements of legal advisers, independent accountants and other
experts selected by the Agent with reasonable care. As to any matters not
expressly provided for in this Agreement or in any of the other Loan Documents
or in any other document referred to herein or therein, the Agent shall in all
cases be fully protected in acting, or in refraining from acting, in accordance
with the written instructions of the Banks, and such instructions and any action
taken or failure to act pursuant thereto shall be binding on the Banks.
Section 10.3.INDEMNIFICATION. Without limiting the obligations of
the Company hereunder or under any other Loan Document, to the extent not
reimbursed by the Company, the Banks agree to indemnify the Agent, ratably in
accordance with their respective Commitment Percentages for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits
(whether groundless or otherwise), costs, expenses (including any expenses for
which the Agent has not been reimbursed by the Company as required by Section
11) or disbursemenTs of any kind or nature whatsoever which may at any time
(including without limitation at any time following the payment of the Notes) be
imposed on, incurred by or asserted against the Agent in any way relating to or
arising out of this Agreement or the Notes or any of the other Loan Documents or
any documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or the enforcement of any of the
terms hereof or thereof or of any such other documents, provided that no Bank
shall be liable for any of the foregoing to the extent they arise from the
Agent's gross negligence or willful misconduct. The agreements in this
subSection shall survive the payment of the Notes and all other amounts payable
hereunder.
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Section 10.4.REIMBURSEMENT. Without limiting the provisions of
Section 10.3, the Banks and the Agent hereby agree that the Agent shall not be
obliged to make available to any Person any sum which the Agent is expecting to
receive for the account of that Person until the Agent has determined that it
has received that sum. The Agent may, however, disburse funds prior to
determining that the sums which the Agent expects to receive have been finally
and unconditionally paid to the Agent, if the Agent wishes to do so. If and to
the extent that the Agent does disburse funds and it later becomes apparent that
the Agent did not then receive a payment in an amount equal to the sum paid out,
then any Person to whom the Agent made the funds available shall, on demand from
the Agent:
(a) refund to the Agent the sum paid to that Person; and
(b) reimburse the Agent for the additional amount certified by the
Agent as being necessary to indemnify the Agent against any funding or other
cost, loss, expense or liability sustained or incurred by the Agent as a result
of paying out the sum before receiving it provided, however, that if such funds
were made available to any Bank, such additional amount shall be limited to
interest on the sum to be repaid, for each day from the date such amount was
disbursed until the date repaid to the Agent, at, for the first three days, the
customary rate set by the Agent for correction of errors among banks, and
thereafter at the Base Rate.
Section 10.5.NON-RELIANCE ON AGENT AND OTHER BANKS. Each Bank
represents that it has, independently and without reliance on the Agent or any
other Bank, and based on such documents and information as it has deemed
appropriate, made its own appraisal of the financial condition and affairs of
the Company and decision to enter into this Agreement and the other Loan
Documents and agrees that it will, independently and without reliance upon the
Agent or any other Bank, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own appraisals and decisions
in taking or not taking action under this Agreement or any other Loan Document.
The Agent shall not be required to keep informed as to the performance or
observance by the Company of this Agreement or any other Loan Document or any
other document referred to or provided for herein or therein or by any other
Person of and agreement or to make enquiry of, or to inspect the properties or
books of, any Person. Except for notices, reports and other documents and
information expressly required to be furnished to the Banks by the Agent
hereunder, the Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning any Person which may come
into the possession of the Agent or any of its affiliates. Each Bank shall have
access to all documents relating to the Agent's performance of its duties
hereunder, at such Bank's request. Unless any Bank shall promptly object to any
action taken by the Agent hereunder, such Bank shall conclusively be presumed to
have approved the same.
Section 10.6.PAYMENTS. If in the opinion of the Agent the
distribution of any amount received by it in such capacity hereunder or under
the Notes or any of the other Loan Documents might involve it in liability, it
may refrain from making distribution until its right to make distribution shall
have been adjudicated by a court of competent jurisdiction. If a court of
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competent jurisdiction shall adjudge that any amount received and distributed by
the Agent is to be repaid, each Person to whom any such distribution shall have
been made shall either repay to the Agent its proportionate share of the amount
so adjudged to be repaid or shall pay over the same in such manner and to such
Persons as shall be determined by such court. With respect to obligations of the
Company hereunder, a payment to the Agent shall be deemed to be a payment to the
Banks.
Section 10.7.HOLDERS OF NOTES. The Agent may deem and treat the
payee of any Note as the absolute owner thereof for all purposes hereof until it
shall have been furnished in writing with a different name by such payee or by a
subsequent holder.
Section 10.8.AGENT AS BANK. In its individual capacity, CoreStates
Bank, N.A. shall have the same obligations and the same rights, powers and
privileges in respect to its Commitment and the Loans made by it hereunder, and
as the holder of any of the Notes, as it would have were it not also the Agent.
Section 10.9.RESIGNATION OF AGENT. The Agent may resign at any time
by giving 90 days' prior written notice thereof to the Banks and the Company.
Upon any such resignation, the Majority Banks shall have the right, with the
consent of the Company (which shall not be unreasonably withheld), to appoint
another Bank as successor Agent. If no other Bank shall have been so appointed
by the Majority Banks and shall have accepted such appointment within 30 days
after the retiring Agent's giving of notice of resignation, then the retiring
Agent may, on behalf of the Banks, after consultation with the Company, appoint
a successor Agent, which shall be a financial institution having a combined
capital and surplus in excess of $1,000,000,000. Upon the acceptance of its
appointment the successor Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and obligations
hereunder. After any retiring Agent's resignation, the provisions of this
Agreement shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as Agent.
Section 10.10. INDEPENDENT OBLIGATIONS, ACTIONS. The obligations of
the Banks hereunder are several, and no Bank shall be responsible for the
obligations of any other Bank. Neither the Agent nor any Bank shall be liable
for any independent action or omission of any other Bank.
Section 11. EXPENSES. Whether or not the transactions contemplated
hereby shall be consummated, the Company will pay (a) the reasonable cost of (i)
producing and reproducing this Agreement and other instruments mentioned herein
and (ii) any taxes (including any interest and penalties in respect thereto) or
filing fees payable by the Agent and the Banks (other than taxes based upon the
Agent's or any Bank's net income) on or with respect to the transactions
contemplated by this Agreement (the Company hereby agreeing to indemnify the
Agent and the Banks with respect thereto); (b) the reasonable fees,
out-of-pocket expenses and disbursements of the Agent and the reasonable fees,
expenses and disbursements of the Agent's special counsel
-42-
48
incurred in connection with the preparation, administration or interpretation of
this Agreement and other instruments mentioned herein, each closing hereunder,
amendments, modifications, approvals, consents or waivers hereto or hereunder;
(c) all reasonable out-of-pocket expenses (including reasonable attorneys' fees
and costs, which attorneys may be employees of any Bank or the Agent, and
reasonable consulting, accounting, appraisal, investment banking and similar
professional fees and charges) incurred by the Agent or any Bank in connection
with (i) the enforcement of or preservation of the Agent's or any Bank's rights
under this Agreement and the other Loan Documents or the administration thereof
after the occurrence of a Default or Event of Default and (ii) in connection
with any litigation, proceeding or dispute whether arising hereunder or
otherwise, in any way related to the Agent's or any Banks' relationship with the
Company hereunder or under any predecessor financing arrangement. The covenants
of this Section 11 shall survive payment or satisfaction of payment of amounts
owing with respect to the Notes.
Section 12. INDEMNIFICATION. The Company agrees to indemnify and
hold harmless the Agent and the Banks from and against any and all claims,
actions and suits whether groundless or otherwise, and from and against any and
all liabilities, losses, damages and expenses of every nature and character
arising out of this Agreement or any of the other Loan Documents or the
transactions contemplated hereby including, without limitation, (a) any actual
or proposed use by the Company of the proceeds of any of the Loans, and (b) the
Company entering into or performing this Agreement or any of the other Loan
Documents or in each case including, without limitation, the reasonable fees and
disbursements of counsel and allocated costs of internal counsel incurred in
connection with any litigation or other proceeding. In litigation, or the
preparation therefor, the Banks and the Agent shall be entitled to select their
own counsel and, in addition to the foregoing indemnity, the Company agrees to
pay promptly the reasonable fees and expenses of such counsel. If, and to the
extent that the obligations of the Company under this Section 12 are
unenforceable for any reason, the Company hereby agrees to make the maximum
contribution to the payment in satisfaction of such obligations which is
permissible under applicable law. The covenants of this Section 12 shall survive
payment or satisfaction of payment of amounts owing with respect to the Notes.
Section 13. SURVIVAL OF COVENANTS, ETC. All covenants, agreements,
representations and warranties made herein, in the Notes or in any Loan
Documents or other papers delivered by or on behalf of the Company pursuant
hereto shall be deemed to have been relied upon by the Banks and the Agent,
notwithstanding any investigation heretofore or hereafter made by any of them,
and shall survive the making by the Banks of the Loans as herein contemplated,
and shall continue in full force and effect so long as any amount due under this
Agreement or the Notes remains outstanding and unpaid or the Banks have any
obligation to make any Loans hereunder.
Section 14. PARTIES IN INTEREST. All the terms of this Agreement and
the other Loan Documents shall be binding upon and inure to the benefit of and
be enforceable by the respective successors and assigns of the parties hereto
and thereto; provided, that the Company shall not assign or transfer its rights
hereunder without the prior written consent of the Banks.
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49
Section 15. NOTICES, ETC. Except as otherwise expressly provided in
this Agreement, all notices and other communications made or required to be
given pursuant to this Agreement or the other Loan Documents shall be in writing
and shall be delivered in hand, mailed by United States registered or certified
first-class mail, postage prepaid, sent by overnight courier or sent by
telegraph, telecopy, telefax, or telex and confirmed by delivery via courier or
postal service, addressed as follows (or at such other address for notices as is
furnished in writing in accordance with this Section):
Address for notices to the Agent or CoreStates:
Xxxx Xxxxx
Vice President
CoreStates Bank, N.A.
FC 1-8-12-1
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
With a copy to:
Xxxxx Xxxxxxxx
Senior Vice President
CoreStates Bank, N.A.
FC 1-8-12-1
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Address for notices to
First Union National Bank:
Xxxxx X. Xxxxx
Assistant Vice President
Healthcare Finance Group
First Union Capital Markets
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
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50
Address for notices to
NationsBank, N.A.:
Xxxxx Xxxxxx
Corporate Finance Officer
Healthcare Finance Group
NationsBank, N.A.
Xxx XxxxxxxXxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Address for notices to
the Company:
Xxxxxx X. Xxxxxxxx
Vice President & Treasurer
Universal Health Realty Income Trust
000 Xxxxx Xxxxx Xxxx
Xxxx xx Xxxxxxx, XX 00000
Any Bank (including CoreStates Bank, N.A. in its capacity as Agent)
giving any notice to the Company shall simultaneously send a copy thereof to the
other Banks.
Except as otherwise expressly provided herein with respect to any
particular notice or demand to be given or made hereunder, any such notice or
demand shall be deemed to have been duly given or made and to have become
effective (a) if delivered by hand, overnight courier or facsimile to a
responsible officer of the party to which it is directed, at the time of the
receipt thereof by such officer, (b) if sent by registered or certified
first-class mail, postage prepaid, on the earlier of actual receipt thereof or
three (3) Business Days after the posting thereof, and (c) if sent by telex or
cable, at the time of the dispatch thereof, if in normal business hours in the
country of receipt, or otherwise at the opening of business on the following
Business Day.
Section 16. GOVERNING LAW, ETC. THIS AGREEMENT AND THE NOTES SHALL
BE DEEMED TO BE CONTRACTS UNDER THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA AND
SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE COMMONWEALTH OF PENNSYLVANIA, WITHOUT REFERENCE TO PRINCIPLES OF
CONFLICTS OR CHOICE OF LAW. THE BORROWER AGREES THAT ANY SUIT FOR THE
ENFORCEMENT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT
IN THE COURTS OF THE COMMONWEALTH OF PENNSYLVANIA OR ANY FEDERAL COURT SITTING
THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE COMPANY BY MAIL AT THE
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ADDRESS SPECIFIED IN Section 15. THE COMPANY HEREBY WAIVES ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR
THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT. The rights and remedies
herein expressed are cumulative and not exclusive of any other rights which the
Banks would otherwise have. The captions in this Agreement are for convenience
of reference only and shall not define or limit the provisions hereof. This
Agreement and any amendment hereof may be executed in several counterparts and
by each party on a separate counterpart, each of which when so executed and
delivered shall be an original, but all of which together shall constitute one
instrument. In proving this Agreement it shall not be necessary to produce or
account for more than one such counterpart signed by the party against whom
enforcement is sought.
Section 17. ENTIRE AGREEMENT, ETC. This Agreement, together with the
other Loan Documents and any other documents executed in connection herewith or
therewith, express the entire understanding of the parties with respect to the
transactions contemplated hereby. Neither this Agreement nor any term hereof may
be changed, waived, discharged or terminated orally or in writing, except as
provided in Section 19.
Section 18. WAIVER OF JURY TRIAL. THE COMPANY AND THE BANKS HEREBY
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR
CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT OR THE NOTES,
ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH
RIGHTS AND OBLIGATIONS.
Section 19. CONSENTS, AMENDMENTS, WAIVERS, ETC.
(a) Except as otherwise expressly set forth in this Agreement, any
consent or approval required or permitted by this Agreement to be given by the
Banks may be given, and any term of this Agreement or of any other instrument
related hereto or mentioned herein may be amended, and the performance or
observance by the Company of any term of this Agreement or the continuance of
any Default or Event of Default may be waived (either generally or in a
particular instance and either retroactively or prospectively) with, but only
with, the written consent of the Majority Banks. Notwithstanding the foregoing,
or any other provision of this Agreement or the Letter of Credit Documents to
the contrary, decreases in the rates of interest on the Notes, forgiveness of
any amounts due under the Notes, extensions in the stated maturity of the Notes
or the stated expiration date of any Letters of Credit or in the time for
payment of any interest or fees payable hereunder, increases in the Commitment
Amounts or Commitment Percentages, and decreases in the amount of the Commitment
Fee or other fees payable hereunder may not be made without the written consent
of the Company and each of the Banks; neither the definition of Majority Banks
nor Section s 7.11, 7.12 or 19 of this Agreement may be amended without the
written consent of the Company and each of the Banks; and the amount of any fee
payable to the Agent in connection herewith and Section 10 may not be amended
without the written consent of the Agent. No waiver shall extend to or affect
any obligation not expressly
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52
waived or impair any right consequent thereon. No course of dealing or delay or
omission on the part of any Bank in exercising any right shall operate as a
waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon
the Company shall entitle the Company to other or further notice or demand in
similar or other circumstances.
(b) In the event the Company seeks an amendment of a dollar
limitation set forth in Section 7.27 or Section 7.28, the Company shall provide
notice to each Bank of such request in substantially in the form of Exhibit E.
So long as no Default or Event of Default exists, if any Bank fails to respond
to such request within ten Business Days of receipt of such notice, the Bank
shall be deemed to have assented to such request. Each notice by the Company
shall state that a failure to respond within such period shall be deemed to
constitute assent to the request and shall be accompanied by all relevant
information necessary for the Banks to evaluate such request.
Section 20. SEVERABILITY. The provisions of this Agreement are
severable and if any one clause or provision hereof shall be held invalid or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction, and shall not in any manner affect such clause or provision
in any other jurisdiction, or any other clause or provision of this Agreement in
any jurisdiction.
Section 21. ASSIGNMENTS; PARTICIPATIONS.
Section 21.1 ASSIGNMENTS AND PARTICIPATIONS.
(a) The Company acknowledges and agrees that a Bank may at any time
grant participations in all or any portion of its pro rata share of the Loans
and Letters of Credit or of its right, title and interest therein or in or to
this Agreement (collectively, "Participations") to any other lending office or
to any other bank or lending institution ("Participants"); provided, however,
that: (i) all amounts payable by the Company shall be determined as if such Bank
had not granted such Participation; and (ii) any agreement pursuant to which any
Bank may grant a Participation: (x) shall provide that such Bank shall retain
the sole right and responsibility to enforce the obligations of the Company
hereunder including, without limitation, the right to approve any amendment,
modification or waiver of any provisions of this Agreement; (y) may provide that
such Bank will not agree to any modification, amendment or waiver of this
Agreement without the consent of the Participant if such amendment, modification
or waiver would reduce the principal of or rate of interest on the Loan or
postpone the date fixed for any payment of principal of or interest or fees on
the Loan or extend the expiration date of any Letter of Credit or amend the
amount of the Commitment or Commitment Percentage of such Bank; and (z) shall
not relieve such Bank from its obligations, which shall remain absolute, to make
advances hereunder.
(b) Except as otherwise provided in subSection (a), no Bank may
assign, sell, or transfer all or any portion of its pro rata share of the Loans
or any Note or Letter of Credit or of
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53
its right, title or interest therein or in or to this Agreement, to any other
bank or lending institution without the prior written consent of the Company and
Agent (which consents may not be unreasonably withheld), execution by the
assignee Bank of an Assignment Agreement in form and substance reasonably
satisfactory to the Company and the Banks, and payment of an assignment fee by
the assigning Bank to the Agent in the amount of $2,500. In no event shall any
such assignment, sale or transfer (i) be in an aggregate principal amount of
less than $2,500,000 or (ii) reduce the assigning Bank's Commitment below 51% of
its original Commitment.
Section 21.2.MISCELLANEOUS ASSIGNMENT PROVISIONS. If any assignee
Bank is not incorporated under the laws of the United States of America or any
state thereof, it shall, prior to the date on which any interest or fees are
payable hereunder or under any of the other Loan Documents for its account,
deliver to the Company and the Agent certification as to its exemption from
deduction or withholding of any United States federal income taxes. Anything
contained in this Section 21 to the contrary notwithstanding, any Bank may at
any time pledge all or any portion of its interest and rights under this
Agreement (including all or any portion of its Notes) to any of the twelve
Federal Reserve Banks organized under Section 4 of the Federal Reserve Act, 12
U.S.C, Section 341. No such pledge or the enforcement thereof shall release the
pledgor Bank from its obligations hereunder or under any of the other Loan
Documents.
Section 21.3.DISCLOSURE. The Company and the Banks agree that any
Bank may disclose information obtained by such Bank pursuant to this Agreement
to assignee Banks or participants and potential assignee Banks or participants
hereunder; provided that such assignee Banks or participants or potential
assignees or participants shall agree (a) to treat in confidence such
information, (b) not to disclose such information to a third party and (c) not
to make use of such information for purposes of transactions unrelated to such
contemplated assignment or participation.
-48-
54
IN WITNESS WHEREOF, the undersigned have duly executed this
Agreement under seal as of the date first set forth above.
UNIVERSAL HEALTH REALTY INCOME TRUST
By:_________________________________
Title:
CORESTATES BANK, N.A.,
individually and as Agent
By:_________________________________
Title:
NATIONSBANK, N.A.
By:______________________________________
Title:
FIRST UNION NATIONAL BANK
By:_________________________________
Title:
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55
EXHIBIT A
REVOLVING CREDIT NOTE
$______________ _______________, 1996
For value received, UNIVERSAL HEALTH REALTY INCOME TRUST ("Maker"),
hereby unconditionally promises to pay to the order of _______________________
("Bank"), the principal sum of ______________ Million Dollars ($___,000,000) or
so much thereof as shall have been advanced as Loans under the Credit Agreement
(referred to below) and shall then be outstanding, in lawful money of the
United States of America in immediately available funds, together with interest
payable on the unpaid principal balance at such interest rate or rates and at
such times and in the manner as specified in the Credit Agreement; provided,
however, that all Loans shall be due and payable in full on or before the
Maturity Date as provided in the Credit Agreement. All such payments shall be
remitted to the Agent on behalf of the Bank at the address set forth in
Schedule 1 to the Credit Agreement or at such other place as the Agent may
designate. Capitalized terms used herein and not otherwise defined shall have
the respective meanings assigned in the Credit Agreement.
This Note arises out of a certain Amended and Restated Revolving Credit
Agreement dated as of September ___, 1996, among the Maker, CoreStates Bank,
N.A., for itself and as Agent, and the additional banks signatories thereto
(herein the "Credit Agreement"), to which reference is made for a statement of
the respective rights and obligations of the parties and the terms and
conditions therein provided under which the principal hereof and accrued
interest thereon and any other amounts payable, if any, may be prepaid or may
become immediately due and payable.
The Maker hereby waives presentment, demand for payment, notice of
dishonor or acceleration, protest and notice of protest, and any and all other
notice or demands in connection with the delivery, acceptance, performance,
default or enforcement of this Note, excepting any notice requirement set forth
in the Credit Agreement. No failure on the part of the holder of this Note in
exercising any right or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or remedy preclude any
other or future exercise thereof or the exercise of any other right or remedy
hereunder. No modification or waiver of any provision of this Note shall in any
event be effective unless the same shall be in writing, in accordance with
Section 19(a) of the Credit Agreement, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose given.
Notwithstanding the face amount of this Note, the Maker's liability
hereunder shall be limited at all times to the actual aggregate outstanding
indebtedness to the Bank, including principal and interest, in respect of the
Loans under the Credit Agreement, together with all fees and expenses,
(including without limitation costs of enforcement)
56
provided for in the Credit Agreement and as established by the Agent's books
and records, which books and records shall be conclusive absent manifest error.
This Note shall deemed to have been made under and shall be governed by
the laws of the Commonwealth of Pennsylvania in all respects, including matters
of construction, validity and performance, without regard to principles of
conflict of laws.
IN WITNESS WHEREOF, the undersigned, by its duly authorized officer,
has executed this Note as of the date first above written.
UNIVERSAL HEALTH REALTY
INCOME TRUST
By: ____________________________
Title:
-2-
57
[FULBRIGHT & XXXXXXXX LLP. LETTERHEAD]
September __, 1996
NationsBank, N.A.
First Union National Bank
CoreStates Bank, N.A.
c/o CoreStates Bank, N.A., Agent
FC 1-8-12-1
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Ladies and Gentlemen:
We have served as counsel to Universal Health Realty Income Trust, a
real estate investment trust organized under the laws of the State of Maryland
(the "Company"), in connection with a certain Amended and Restated Revolving
Credit Agreement dated as of September __, 1996 (the "Loan Agreement") among
the Company, NationsBank, N.A., First Union National Bank and CoreStates Bank,
N.A., individually and as Agent, and in connection with the execution and
delivery by the Company of certain Revolving Credit Notes (collectively, the
"Notes") pursuant to the Loan Agreement. The Loan Agreement and the Notes are
sometimes hereinafter collectively referred to as the "Loan Documents." Each
capitalized term used herein that is defined in the Loan Agreement and that is
not otherwise defined herein shall have the meaning specified for such term in
the Loan Agreement.
In connection with this opinion, we have examined the Loan Documents,
originals, or copies certified to our satisfaction, of the Declaration of Trust
and By-Laws of the Company, and such other corporate records, documents and
instruments as we deem necessary or relevant as a basis for the opinions
hereinafter expressed.
In making the foregoing examinations, we have assumed the genuineness
of all signatures (other than those of the Company) on, and the authenticity
of, all documents submitted to us as originals, the legal capacity of each
person signatory to any of such documents and the conformity to original
documents of all documents submitted to us as certified or photostatic.
Further, in rendering the opinions expressed herein, we have assumed that the
Loan Agreement has been duly authorized, executed and delivered by each of the
parties thereto other than the Company, and constitutes the legal, valid and
binding obligations of each such party thereto other than the Company.
58
September ___, 1996
Page 2
As to various questions of fact material to such opinions as they
relate to the Company, we have consulted with responsible officials or
representatives of the Company and have relied exclusively upon a certificate
or certificates of its officers and of certain public officials and upon the
representations and warranties (including the schedules), agreements and other
facts set forth in the Loan Agreement. We have made no effort to independently
verify the facts set forth in any such certificate or the Loan Agreement;
however, nothing has come to our attention that would cause us to believe such
reliance is not justified.
Based upon and subject to the foregoing, we advise you that in our
opinion, subject in all respects to the assumptions, qualifications, exceptions
and limitations set forth herein:
1. The Company is a real estate investment trust duly organized,
validly existing and in good standing under the laws of the State of Maryland,
and has all requisite power and authority under the laws of such State to own
its properties and conduct its business as now conducted or as presently
contemplated and is duly authorized to do business, and is in good standing as
a foreign business entity, in each jurisdiction in which its property or
business as presently conducted or contemplated makes such qualification
necessary, except where a failure to be so qualified would not have a material
adverse effect on the business, assets or financial condition of the Company.
2. The execution, delivery and performance of the Loan Documents and
the transactions contemplated thereby (i) are within the authority of the
Company and have been duly authorized by all necessary proceedings, (ii) do not
conflict with or result in any material breach or contravention of any
provision of law, statute, rule or regulation to which the Company is subject
or, to our knowledge, any judgment, order, writ, injunction, license or permit
applicable to the Company, so as to materially adversely affect the assets,
business or financial condition of the Company, and (iii) do not conflict with
any provision of the Declaration of Trust or By-Laws of the Company or any
agreement or instrument known to us to which the Company is a party or by which
it may be bound.
3. The agreements and obligations of the Company contained in the Loan
Documents to which the Company is a party constitute the legal, valid and
binding obligations of the Company enforceable against the Company in
accordance with the terms and provisions thereof.
4. The execution, delivery and performance by the Company of the Loan
Documents and the transactions contemplated thereby do not require any approval
or consent of, or filing with, any governmental agency or authority.
2
59
September ___, 1996
Page 3
5. To the best of our knowledge, the Company is not in violation of
any provision of its Declaration of Trust, or its By-Laws, any agreement or
instrument to which it may be subject or by which it or any of its properties
may be bound, or any decree, order, judgment, statute, license, rule or
regulation, including without limitation, as it relates to the Company, the
provisions of the Internal Revenue Code of 1986, as amended, and the
regulations thereunder governing real estate investment trusts, in a manner
which could result in the imposition of substantial penalties or materially and
adversely affect the business, assets or financial condition of the Company.
6. The Company is not a "holding company" or a "subsidiary company" of
a "holding company," as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended; and the Company is not a "registered
investment company" or an "affiliated company" or a "principal underwriter" of
a "registered investment company," as such terms are defined in the Investment
Company Act of 1940, as amended.
7. To the best of our knowledge (although we have made no independent
inquiry), there are no actions, suits, proceedings or investigations of any
kind pending or threatened against the Company before any court, tribunal or
administrative agency or board which, if adversely determined, might, in either
case or in the aggregate, materially adversely affect the properties, assets,
financial condition or business of the Company or materially impair the right
of the Company to carry on business substantially as now conducted or result in
any substantial liability not adequately covered by insurance or for which
adequate reserves are not maintained on the balance sheets of the Company or
which question the validity of any of the Loan Documents or any action taken or
to be taken pursuant thereto.
The foregoing opinions are subject to the following assumptions,
exceptions, qualifications and limitations:
A. The opinions expressed herein are qualified to the extent that
the validity or enforceability of any provision of any Loan Document or of
other agreements, instruments or documents referred to in any Loan Document, or
of any rights or remedies granted pursuant to any Loan Department of any of
such other agreements, instruments or documents, may be subject to or affected
by (i) applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, fraudulent transfer or other similar laws, now or
hereafter in effect, relating to or affecting the rights of creditors
generally, (ii) the availability of the remedy of specific performance or any
other equitable remedy within the discretion of a court, or (iii) duties and
standards imposed on creditors from time to time, including, without
limitation, good faith, reasonableness and fair dealing.
B. In rendering the opinions expressed herein, we express no opinion
as to the legality, validity, enforceability or binding effect of provisions of
the Loan
-3-
60
September __, 1996
Page 4
Agreement (i) relating to severability or pursuant to which a party purports to
waive rights, claims or defenses to the extent that such rights, claims or
defenses cannot be waived under applicable law, (ii) relating to any
indemnification against losses or expenses caused by the gross negligence,
willful misconduct, fraud or illegal conduct of the indemnified party, or which
might be limited by public policy, or (iii) purporting to waive obligations or
standards of good faith, diligence, reasonableness or care under applicable
principles of common law and judicial decisions.
C. In rendering our opinion set forth in paragraphs 1 and 5, we have,
with your permission, relied as to certain factual matters on the Officer's
Certificate of Xxxx X. Xxxxxx, President of the Company as to certain legal
matters contained in paragraph 1, upon the opinion of Xxxxx X. Xxxxxxx, General
Counsel to the Company.
D. In rendering our opinion set forth in paragraph 1 as to the
organization, existence and good standing of the Company, we have, with your
permission, relied solely on the Certificate, dated September 16, 1996, from
the Maryland State Department of Assessments and Taxation as to the due
organization, legal existence and good standing of the Company in Maryland.
E. We are authorized to practice law in the State of New York, and we
have made such examination of the laws of the State of New York and the federal
laws of the United States of America as we deem relevant and necessary for the
purposes of this opinion. We do not purport to render any opinion with regard
to the laws, regulations or the like of any other jurisdiction. We note that
the Loan Documents are governed by the laws of the Commonwealth of
Pennsylvania. For purposes of this opinion we have assumed, without independent
verification, that the laws of the Commonwealth of Pennsylvania are identical
in all material respects to the laws of the State of New York.
F. Whenever our opinion herein with respect to the existence or absence
of facts is qualified by the phrase "to our knowledge" or words of similar
import, it is intended to indicate that no information has come to the
attention of the partner responsible for the client representation or lawyers
currently with our Firm who have worked on the transactions contemplated by the
Loan Documents which would give us actual knowledge of the existence or
absence of such facts, as appropriate. Moreover, we have not undertaken any
independent investigation to determine the existence or absence of such facts,
and any limited inquiries made by us during the presentation of this opinion
should not be regarded as such investigation.
G. The opinions expressed herein are given as of the date hereof,
based upon the facts and the laws, regulations and the like in existence and in
force and effect on and as of the date hereof, and we undertake no, and hereby
disclaim any, obligation to advise you of any change in any matters set forth
herein after the date hereof. These opinions are rendered solely for your
benefit and the benefit of the Banks in
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61
September __, 1996
Page 5
connection with the transactions contemplated by the Loan Agreement and are not
to be used, circulated, quoted or otherwise referred to for any other purpose,
nor may they be used or relied upon by anyone else.
Very truly yours,
-5-
62
EXHIBIT C
[Universal Health Service Logo and Letterhead]
, 1996
NationsBank, X.X.
Xxxxxxxxx & Xxxxxxxx L.L.P.
First Union National Bank
CoreStates Bank, N.A.
c/o CoreStates Bank, N.A.
FC 1-8-12-1
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Dear Sirs:
I am General Counsel of Universal Health Realty Income Trust, a real
estate investment trust organized under the laws of the State of Maryland (the
"Company"), and an furnishing this opinion in connection with a certain Amended
and Restated Revolving Credit Agreement dated as of September __, 1996 (the
"Loan Agreement") among the Company, NationsBank, N.A., First Union National
Bank, CoreStates Bank, N.A., individually and as Agent, and in connection with
the execution and delivery by the Company of certain Revolving Credit Notes
(collectively, the "Notes") pursuant to the Loan Agreement. The Loan Agreement
and the Notes are sometimes hereinafter collectively referred to as the "Loan
Documents."
In connection with the opinions set forth below, I have examined the
original or copies authenticated to my satisfaction of the Loan Documents and
of the Declaration of Trust and By-Laws of the Company, and certificates of
public authorities and officers of the Company,and such other agreements,
documents, instruments and records as I have deemed necessary or appropriate.
Based upon the foregoing, it is my opinion that:
1. The Company is a real estate investment trust duly organized,
validly existing and in good standing under the laws of the State of Maryland,
and has all requisite power and authority under the laws of such State to own
its properties and conduct its business as now conducted or as presently
contemplated and is duly authorized to do business, and is in good standing as
a foreign business entity, in each jurisdiction in which its property or
business as presently conducted or contemplated makes such qualification
necessary, except where a failure to be so qualified would not have a material
adverse effect on the business, assets or financial condition of the Company.
2. The execution, delivery and performance of the Loan Documents
to which Company is a party and the transactions contemplated thereby (i) are
within the authority of the Company and have been dully authorized by all
necessary proceedings, (ii) do not conflict with or result in any material
breach or contravention of any provision of law, statue, rule or regulation to
which the Company is subject or, to my knowledge after due inquiry, any
judgment, order, writ, injunction, license or permit applicable to the Company,
so as to materially adversely affect the assets, business or financial condition
of the Company, and (iii) do not conflict with any provision of the Declaration
of Trust or By-Laws of the Company or any agreement or instrument known to me to
which the Company is a party or by which it may be bound.
63
[Universal Health Service Logo and Letterhead]
, 1996
NationsBank, X.X.
Xxxxxxxxx & Xxxxxxxx L.L.P.
First Union National Bank
CoreStates Bank, N.A.
c/o CoreStates Bank, N.A., Agent
, 1996
Page 2
3. The execution, delivery and performance by the Company of the
Loan Documents and the transactions contemplated thereby do not require any
approval or consent of, or filing with, any governmental agency or authority.
4. To the best of my knowledge, the Company is not in violation of
any provision of its Declaration of Trust, or its By-laws, any agreement or
instrument to which it may be subject or by which it or any of its properties
may be bound, or any decree, order, judgment, statue, license, rule or
regulation, including without limitation, in the case of the Company, the
provisions of the Internal Revenue Code of 1986, as amended, and the
regulations thereunder governing real estate investment trusts, in a manner
which could result in the imposition of substantial penalties or materially
and adversely affect the business assets or financial condition of the Company.
5. To the best of my knowledge, there are no actions, suits,
proceedings or investigations of any kind pending or threatened against the
Company before any court, tribunal or administrative agency or board which, if
adversely determined, might, in either case on in the aggregate, materially
adversely affect the properties, assets, financial condition or business of the
Company or materially impair the right of the Company to carry on business
substantially as now conducted or result in any substantial liability not
adequately covered by insurance or for which adequate reserves are not
maintained on the balance sheets of the Company or which question the validity
of any of the Loan Documents or any action taken or to be taken pursuant
thereto.
This opinion is rendered solely for your benefit in connection with the
subject transaction and is not to be otherwise furnished to third parties, used,
circulated, quoted or relied upon, without my prior written consent.
Very truly yours,
Xxxxx X. Xxxxxxx
General Counsel
64
EXHIBIT D
UNIVERSAL HEALTH REALTY INCOME TRUST
CREDIT AGREEMENT COMPLIANCE RATIOS
------------------------------------
Date: _______________
(in thousands, except ratios)
7.5 Tangible Net Worth:
------------------
Capital stock and surplus $
Less intangibles
Less write ups
Total Tangible Net Worth $
-------
Minimum compliance level $90,000
-------
7.6 Ratio of Total Liabilities
to Tangible Net Worth:
--------------------------
Total Liabilities $
-------
Total Tangible Net Worth $
-------
Ratio ($_____divided by $_____) ----
Maximum permitted ratio 1.00
----
7.7 Debt Service Coverage Ratio:
----------------------------
Cash Flow Available for Debt
Service:
Net Income $
Interest Expense, including
commitment, facility and
other fees
Depreciation and Amortization
(Gains)/Losses on Sale of
Real Estate -------
$
-------
Debt Service Charges:
Interest Expense, including $
commitment, facility and
other fees
Required principal payments
15% of Outstanding Revolver
Loans and Letters of
Credit -------
$
-------
Ratio ($_____divided by $_____) ----
Minimum Permitted Ratio 1.50
----
65
7.8 Debt to Cash Flow Available for Debt Service:
---------------------------------------------
Debt: $
_______
Cash Flow Available for Debt Service:
Net income $
Interest Expense, including commitment,
facility and other fees
Depreciation and Amortization
(Gains)/Losses on Sale of Real Estate _______
$
-------
Ratio ($______ divided by $______) ----
Maximum Permitted Ratio 3.50
----
7.10 Secured Debt
------------
(i) Unsecured Indebtedness $
-------
Facility Cash Flow Available for Debt Service
generated by all Unencumbered Properties:
Net Income $
Interest Expense, including commitment,
facility and other fees
Depreciation and Amortization
Rental expenses
Management fees
Intercompany interest expense -------
$
-------
Maximum Permitted Ratio 2.50
----
$
-------
(ii) Secured Indebtedness $20,000
Maximum
DISPLAY CALCULATION OF DEBT TO ADJUSTED CASH FLOW
AVAILABLE FOR DEBT SERVICE RATIO:
66
EXHIBIT E
FORM OF NOTICE
[Full Letterhead of Universal Health Realty Income Trust]
_______________, 19__
To the Banks party to the
Credit Agreement referred
to below and CoreStates Bank,
N.A. as Agent
FC 1-8-12-1
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Ladies and Gentlemen:
Reference is made to the Amended and Restated Revolving Credit
Agreement dated as of September __, 1996, as hereafter amended from time to
time (the "Credit Agreement"), among Universal Health Realty Income Trust (the
"Company"), the banking institutions signatories thereto (the "Banks") and
CoreStates Bank, N.A., as Agent for the Banks.
In accordance with Section 19(b) of the Credit Agreement, the Company
requests that the $_________ limit on [AGGREGATE] [INDIVIDUAL] [MORTGAGE LOANS]
[CONSTRUCTION LOANS] set forth in Section [7.28] [7.29] of the Credit Agreement
be increased to $_________, effective _______________. Background information
regarding this request is enclosed.
PLEASE BE ADVISED THAT UNDER THE TERMS OF SECTION 19(b) OF THE CREDIT
AGREEMENT, IF YOU FAIL TO RESPOND TO THIS REQUEST WITHIN TEN BUSINESS DAYS OF
RECEIPT OF THIS REQUEST AND NO DEFAULT OR EVENT OF DEFAULT EXISTS, YOU WILL BE
DEEMED TO HAVE ASSENTED TO THIS REQUEST.
Very truly yours,
UNIVERSAL HEALTH REALTY
INCOME TRUST
By: _____________________________
[Name]
[Title]
67
SCHEDULE 1
COMMITMENTS
Commitment
Bank Commitment Percentage
---- ---------- ----------
CoreStates Bank, N.A. $35,000,000 50%
NationsBank, N.A. $20,000,000 28.6%
First Union National Bank $15,000,000 21.4%
68
SCHEDULE 2
APPLICABLE MARGIN & FEES
(Expressed as basis points)
Eurodollar Adjusted C/D Letter of Commitment
Ratio* Rate Margin Rate Margin Credit Fee Fee
------ ----------- ------------ ---------- ----------
< 1.75 62.5 75.0 62.5 15.0
< 2.50 75.0 87.5 75.0 20.0
< 3.00 87.5 100.0 87.5 25.0
> 3.00 112.5 112.5 112.5 37.5
* Debt to Adjusted Cash Flow Available for Debt Service Ratio
69
SCHEDULE 3
PAYMENT INSTRUCTIONS
CoreStates Bank, N.A.
000000000
Attention: Loan Accounting Department
Account Number: 00000000
Reference: Universal Health Realty Income Trust
