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EXHIBIT 10.1
AMENDED AND RESTATED
CREDIT AGREEMENT
by and among
HEALTHCARE REALTY TRUST INCORPORATED,
as Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent,
FIRST UNION NATIONAL BANK
and
UBS AG, STAMFORD BRANCH,
as Syndication Agents,
THE OTHER BANKS IDENTIFIED HEREIN
and
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
July 2, 2001
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TABLE OF CONTENTS
Section Page
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ARTICLE I .....................................................................................1
Section 1.01 Definitions..........................................................................1
Section 1.02 Accounting Terms....................................................................16
Section 1.03 Other Definitional Provisions.......................................................16
ARTICLE II ....................................................................................16
Section 2.01 Commitments.........................................................................16
Section 2.02 Method of Borrowing.................................................................18
Section 2.03 Notes...............................................................................18
Section 2.04 Scheduled Termination of Commitments; Maturity of Loans.............................19
Section 2.05 Interest Rates......................................................................19
Section 2.06 Letters of Credit...................................................................20
Section 2.07 Swingline Loan Advances.............................................................23
Section 2.08 Optional Termination or Reduction of Revolving Commitments..........................24
Section 2.09 Prepayments.........................................................................25
Section 2.10 Method of Electing Interest Rates...................................................25
Section 2.11 General Provisions as to Payments...................................................26
Section 2.12 Funding Losses......................................................................27
Section 2.13 Computation of Interest and Fees....................................................28
Section 2.14 Withholding Tax Exemption...........................................................28
Section 2.15 Fees................................................................................28
ARTICLE III ....................................................................................29
Section 3.01 Conditions to Initial Extensions of Credit..........................................29
Section 3.02 Conditions to Extension of Credit...................................................30
ARTICLE IV ....................................................................................31
Section 4.01 Corporate Existence and Power.......................................................31
Section 4.02 Corporate and Governmental Authorization; No Contravention..........................31
Section 4.03 Binding Effect......................................................................31
Section 4.04 Litigation..........................................................................31
Section 4.05 Compliance with ERISA...............................................................32
Section 4.06 Environmental Matters...............................................................32
Section 4.07 Material Subsidiaries...............................................................33
Section 4.08 Not an Investment Company...........................................................33
Section 4.09 Margin Stock........................................................................34
Section 4.10 Compliance With Laws................................................................34
Section 4.11 Absence of Liens....................................................................34
Section 4.12 Debt................................................................................34
Section 4.13 Contingent Liabilities..............................................................34
Section 4.14 Investments.........................................................................34
Section 4.15 Solvency............................................................................34
Section 4.16 Taxes...............................................................................35
Section 4.16 REIT Status.........................................................................35
Section 4.18 Specified Affiliates................................................................35
Section 4.19 Financial Condition.................................................................35
Section 4.20 No Material Adverse Effect..........................................................35
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ARTICLE V ....................................................................................35
Section 5.01 Information.........................................................................36
Section 5.02 Payment of Obligations..............................................................38
Section 5.03 Maintenance of Property; Insurance..................................................38
Section 5.04 Conduct of Business and Maintenance of Existence....................................38
Section 5.05 Compliance with Laws................................................................39
Section 5.06 Inspection of Property, Books and Records...........................................39
Section 5.07 Negative Pledge.....................................................................39
Section 5.08 Consolidations, Mergers and Sales and Transfer of Assets............................40
Section 5.09 Creation of Subsidiaries............................................................41
Section 5.10 Incurrence and Existence of Debt....................................................41
Section 5.11 Transactions with Affiliates........................................................42
Section 5.12 Use of Proceeds.....................................................................42
Section 5.13 Constitutional Documents............................................................42
Section 5.14 Investments.........................................................................42
Section 5.15 Capital Expenditures................................................................43
Section 5.16 Repurchase, Retirement or Redemption of Capital Stock; Dividends....................43
Section 5.17 Ratio of Consolidated Funded Indebtedness to Consolidated Total Capital.............43
Section 5.18 Consolidated Tangible Net Worth.....................................................43
Section 5.19 Consolidated Coverage Ratio.........................................................43
Section 5.20 Consolidated Senior Secured Debt to Consolidated Total Capital Ratio................43
Section 5.21 Consolidated Unencumbered Realty to Consolidated Unsecured Debt Ratio...............44
Section 5.22 Consolidated Unencumbered Coverage Ratio............................................44
Section 5.23 Specified Affiliates................................................................44
Section 5.24 REIT Status.........................................................................44
Section 5.25 Leases..............................................................................44
Section 5.26 Favorable Treatment.................................................................44
Section 5.27 Construction and Development........................................................44
Section 5.28 Limitation on Certain Agreements....................................................44
ARTICLE VI ....................................................................................45
Section 6.01 Events of Default...................................................................45
ARTICLE VII ....................................................................................47
Section 7.01 Appointment and Authorization.......................................................47
Section 7.02 Agents and Affiliates...............................................................47
Section 7.03 Action by Agent.....................................................................47
Section 7.04 Consultation with Experts...........................................................47
Section 7.05 Liability of Agent..................................................................48
Section 7.06 Indemnification.....................................................................48
Section 7.07 Credit Decision.....................................................................48
Section 7.08 Successor Agent.....................................................................48
Section 7.09 Agent's Fee.........................................................................49
ARTICLE VIII ....................................................................................49
Section 8.01 Basis for Determining Interest Rate Inadequate or Unfair............................49
Section 8.02 Illegality..........................................................................49
Section 8.03 Increased Cost and Reduced Return...................................................50
Section 8.04 Taxes...............................................................................51
Section 8.05 Base Rate Loans Substituted for Affected Eurodollar Loans...........................52
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Section 8.06 Substitution of Bank................................................................52
ARTICLE IX ....................................................................................52
Section 9.01 Notices.............................................................................52
Section 9.02 No Waivers..........................................................................53
Section 9.03 Expenses............................................................................53
Section 9.04 Sharing of Set-Offs.................................................................54
Section 9.05 Amendments and Waivers..............................................................54
Section 9.06 Successors and Assigns..............................................................55
Section 9.07 Collateral..........................................................................57
Section 9.08 Purpose.............................................................................57
Section 9.09 Governing Law; Submission to Jurisdiction...........................................57
Section 9.10 Counterparts; Integration; Effectiveness............................................57
Section 9.11 WAIVER OF JURY TRIAL................................................................57
SCHEDULES
Schedule 2.01(a) Banks and Commitments
Schedule 2.01(d) Form of Bank Joinder Agreement
Schedule 2.02 Notice of Borrowing
Schedule 2.03(a) Form of Note
Schedule 2.06(a) Letters of Credit to be Issued on the Closing Date
Schedule 2.06(b)-1 Existing Letters of Credit
Schedule 2.06(b)-2 Notice of Request for Letter of Credit
Schedule 2.10 Notice of Interest Rate Election
Schedule 4.04 Litigation
Schedule 4.05 ERISA
Schedule 4.06 Environmental Matters
Schedule 4.07 Material Subsidiaries and Specified Affiliates
Schedule 4.12 Debt
Schedule 4.13 Contingent Liabilities
Schedule 4.14 Investments
Schedule 5.16 White Paper
Schedule 5.26 Form of Guaranty
Schedule 9.01 Notice Addresses
Schedule 9.06(c) Form of Assignment Agreement
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AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT (the "Credit Agreement")
dated as of July 2, 2001 is by and among HEALTHCARE REALTY TRUST INCORPORATED, a
Maryland corporation, BANK OF AMERICA, N.A., as administrative agent (in such
capacity, the "Agent"), FIRST UNION NATIONAL BANK and UBS AG, STAMFORD BRANCH,
as Syndication Agents, the other Banks identified herein, and BANC OF AMERICA
LLC, as Sole Lead Arranger and Sole Book Manager.
WITNESSETH
WHEREAS, a revolving credit facility (the "Existing Credit Facility")
exists in favor of the Borrower pursuant to the terms of that credit agreement
dated as of October 15, 1998 (as amended and modified, the "Existing Credit
Agreement") among the Borrower, certain Subsidiaries of the Borrower, as
guarantors, the banks identified therein, NationsBank, N.A., a national banking
association now known as Bank of America, N.A., as administrative agent for such
banks and First Union National Bank, Societe Generale and Bank Austria
Creditanstalt Corporate Finance, Inc., as co-agents;
WHEREAS, the Borrower has requested certain modifications to the
Existing Credit Facility, including the release of the guaranties given by the
Subsidiaries of the Borrower thereunder;
WHEREAS, the Banks have agreed to the requested modifications on the
terms and conditions provided herein; and
WHEREAS, this Credit Agreement is given in replacement of and
substitution for the Existing Credit Agreement and to refinance the Existing
Credit Facility;
NOW, THEREFORE, in consideration of these premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
The following terms, as used herein, have the following meanings:
"Adjusted Eurodollar Rate" means, for the Interest Period for
each Eurodollar Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate
determined pursuant to the following formula:
Adjusted Eurodollar Rate = Interbank Offered Rate
---------------------------------
1 - Eurodollar Reserve Percentage
"Administrative Questionnaire" means, with respect to each
Bank, an administrative questionnaire in the form prepared by the Agent
and submitted to the Agent duly completed by such Bank.
"Affiliate" means, with respect to any designated Person, (a)
any officers or directors of such Person or (b) any other Person (other
than a Subsidiary of such designated Person) that has
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a relationship with the designated Person whereby either of such
Persons directly or indirectly controls or is controlled by or is under
common control with the other of such Persons. The term "control" means
the possession, directly or indirectly, of the power, whether or not
exercised, to direct or cause the direction of the management or
policies of any Person, whether through ownership of voting securities,
by contract or otherwise.
"Agent" means Bank of America, in its capacity as
administrative agent for the Banks hereunder, and its successors in
such capacity.
"Agent's Fee Letter" means that letter agreement dated as of
_______, 2001 among Bank of America, N.A., Banc of America Securities
LLC and the Borrower, as amended, modified, supplemented or replaced
from time to time.
"Aggregate Revolving Committed Amount" means the aggregate
amount of Revolving Commitments in effect, being initially ONE HUNDRED
FIFTY MILLION DOLLARS ($150,000,000).
"Applicable Lending Office" means, with respect to any Bank,
(a) in the case of its Base Rate Loans, its Domestic Lending Office and
(b) in the case of its Eurodollar Loans, its Eurodollar Lending Office.
"Applicable Percentage" means for any day, the rate per annum
set forth below opposite the applicable rating for the Borrower's
senior unsecured (non-credit enhanced) long term debt then in effect,
it being understood that the Applicable Percentage for (i) Base Rate
Loans shall be the percentage set forth under the column "Base Rate
Margin", (ii) Eurodollar Loans shall be the percentage set forth under
the column "Eurodollar Margin and Letter of Credit Fee", (iii) the
Letter of Credit Fee shall be the percentage set forth under the column
"Eurodollar Margin and Letter of Credit Fee", and (iv) the Facility Fee
shall be the percentage set forth under the column "Facility Fee":
Eurodollar
S&P and Margin Base
Pricing Fitch Xxxxx'x and Letter of Rate Facility
Level Rating Rating Credit Fee Margin Fee
------- ------- ------- ------------- ------ --------
I A- or above A3 or above 0.725% 0% 0.20%
II BBB+ Baa1 0.85% 0% 0.20%
III BBB Baa2 1.00% 0% 0.20%
IV BBB- Baa3 1.15% 0% 0.20%
V below BBB- Below Baa3 1.60% 0.50% 0.30%
or unrated or unrated
The numerical classification set forth under the column
"Pricing Level" shall be established based on the ratings by S&P,
Xxxxx'x and Fitch (collectively, the "Rating Services") for the
Borrower's senior unsecured (non-credit enhanced) long term debt.
Where such a rating is provided by only one Ratings Service,
the pricing shall be determined by reference to that rating. Where a
rating is provided by only two of the three Ratings Services, pricing
shall be determined by reference to the higher of the two ratings if
they are not more than one Pricing Level apart, or by an average of the
applicable Pricing Levels (and applicable margins and fee percentages)
if they are more than one Pricing Level apart. Where a
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rating is provided by all three Ratings Services, pricing shall be
determined by reference to the rating level provided by two of the
three Ratings Services, if the ratings are not more than one Pricing
Level apart, or by an average of the applicable Pricing Levels (and
applicable margins and fee percentages) if any of the ratings are more
than one Pricing Level apart.
The Applicable Percentage shall be determined and adjusted on
the date five (5) Business Days after each change in debt rating.
Adjustments in the Applicable Percentage shall be effective as to all
Loans and Letters of Credit, existing and prospective, from the date of
adjustment. The Agent shall promptly notify the Banks of changes in the
Applicable Percentage. Adjustments in the Applicable Percentage shall
be effective as to existing Extensions of Credit as well as new
Extensions of Credit made thereafter.
"Asset Sale" means any sale, lease or other disposition
(including any such transaction effected by way of merger, amalgamation
or consolidation) by the Borrower or any of its Subsidiaries or
Specified Affiliates subsequent to the date hereof of any asset
(including stock), including without limitation any sale-leaseback
transaction, whether or not involving a Capital Lease, but excluding
(a) any sale, lease or other disposition in the ordinary course of
business of real property which is the subject of mortgage liens
permitted hereunder, (b) any sale, lease or other disposition of raw
materials, supplies or other nonfixed assets in the ordinary course of
business, (c) any sale, lease or other disposition of surplus, obsolete
or worn out machinery, equipment, molds or other manufacturing
equipment in the ordinary course of business to the extent that the
aggregate book value of all of such assets sold, leased or otherwise
disposed of in a fiscal year does not exceed $5,000,000, (d) any sale
or other disposition in the ordinary course of business of readily
marketable securities, (e) any disposition of cash not prohibited
hereunder, and (f) the issuance of any shares of stock in any Specified
Affiliate to any officer, director or employee of the Borrower.
"Assignee" shall have the meaning given to such term in
Section 9.06(c).
"Bank" means each bank listed on the signature pages hereof,
each Assignee which becomes a Bank pursuant to Section 9.06(c), and
their respective successors.
"Bank of America" means Bank of America, N.A., a national
banking association, and its successors.
"BAS" means Banc of America Securities LLC, its successors and
assigns.
"Base Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest whole multiple of 1/100 of 1%)
equal to the greater of (a) the Federal Funds Rate in effect on such
day plus 1/2 of 1% or (b) the Prime Rate in effect on such day. If for
any reason the Agent shall have determined (which determination shall
be conclusive absent manifest error) that it is unable after due
inquiry to ascertain the Federal Funds Rate for any reason, including
the inability or failure of the Agent to obtain sufficient quotations
in accordance with the terms hereof, the Base Rate shall be determined
without regard to clause (a) of the first sentence of this definition
until the circumstances giving rise to such inability no longer exist.
Any change in the Base Rate due to a change in the Prime Rate or the
Federal Funds Rate shall be effective on the effective date of such
change in the Prime Rate or the Federal Funds Rate, respectively.
"Base Rate Borrowing" means a Borrowing consisting of Base
Rate Loans.
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"Base Rate Loan" means a Loan hereunder which bears interest
at the Base Rate plus the Applicable Percentage pursuant to the
applicable Notice of Borrowing or Notice of Interest Rate Election or
the provisions of Article VIII.
"Benefit Arrangement" means at any time an employee benefit
plan within the meaning of Section 3(3) of ERISA which is not a Plan or
a Multiemployer Plan and which is maintained or otherwise contributed
to by any member of the ERISA Group.
"Borrower" means Healthcare Realty Trust Incorporated, a
corporation organized and existing under the laws of the State of
Maryland, and its successors.
"Borrowing" means a Revolving Loan borrowing or Swingline Loan
hereunder, including extensions and conversions.
"Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in Charlotte, North Carolina or New
York, New York are authorized or required by law to close.
"Buy-Sell Agreement" means a written agreement between the
Borrower or any Subsidiary, as purchaser, and one or more third
parties, as seller, obligating the Borrower or such Subsidiary, upon
payment of a definitely determinable price, to acquire the real
property and improvements described therein without contingency, except
that the improvements are constructed in accordance with the conditions
set forth in the particular Buy-Sell Agreement.
"Capital Lease" means a lease that would be capitalized on a
balance sheet of the lessee prepared in accordance with GAAP.
"Capital Lease Indebtedness" means indebtedness incurred
pursuant to a Capital Lease.
"Change of Control" means the occurrence of any of the
following events: (i) any Person or two or more Persons acting in
concert shall have acquired beneficial ownership, directly or
indirectly, of, or shall have acquired by contract or otherwise, or
shall have entered into a contract or arrangement that, upon
consummation, will result in its or their acquisition of or control
over, voting stock of the Borrower (or other securities convertible
into such voting stock) representing 35% or more of the combined voting
power of all voting stock of the Borrower, or (ii) during any period of
up to 24 consecutive months, commencing after the Closing Date,
individuals who at the beginning of such 24 month period were directors
of the Borrower (together with any new director whose election by the
Borrower's Board of Directors or whose nomination for election by the
Borrower's shareholders was approved by a vote of at least two-thirds
of the directors then still in office who either were directors at the
beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a
majority of the directors of the Borrower then in office. As used
herein, "beneficial ownership" shall have the meaning provided in Rule
13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934.
"Closing Date" means the date on which the conditions set
forth in Article III to the making of the initial Extension of Credit
hereunder shall have been fulfilled and on which such initial Extension
of Credit shall have been made.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor statute.
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"Commitments" means, collectively, the Revolving Commitment,
the LOC Commitment and the Swingline Commitment.
"Commitment Period" means the period from and including the
Closing Date to but not including the earlier of (i) the Termination
Date, or (ii) the date on which the Commitments terminate in accordance
with the provisions of this Credit Agreement.
"Consolidated Coverage Ratio" means, as of the date of
determination, the ratio of (i) Consolidated EBITDA to (ii) the sum of
Consolidated Interest Expense plus the aggregate amount of dividends,
distributions and redemptions made in respect of preferred stock by the
Borrower and its Consolidated Subsidiaries during the applicable
period.
"Consolidated EBITDA" means, for the Borrower and its
Consolidated Subsidiaries for any period, the sum of (a) net income,
plus (b) to the extent deducted in determining such net income,
Consolidated Interest Expense, plus (c) the amount of income taxes (or
minus the amount of tax benefits), plus (d) depreciation and
amortization, determined in each case on a consolidated basis in
accordance with GAAP. Except as expressly provided otherwise, the
applicable period shall be for the four consecutive fiscal quarters
ending as of the date of determination.
"Consolidated Funded Indebtedness" means, without duplication,
all obligations, liabilities and indebtedness of the Borrower and its
Subsidiaries of the types described in subsections (a) through (f),
inclusive, (i) and (j) of the definition of Debt.
"Consolidated Interest Expense" means, for the Borrower and
its Consolidated Subsidiaries for any period, the interest expense and
letter of credit fee expense determined on a consolidated basis in
accordance with GAAP. Except as expressly provided otherwise, the
applicable period shall be for the four consecutive fiscal quarters
ending as of the date of determination.
"Consolidated Mortgage Debt" means the aggregate principal
amount of all Debt of the Borrower and its Subsidiaries secured by a
Lien on any real property owned or leased by them.
"Consolidated Senior Debt" means all Consolidated Funded
Indebtedness other than any amount thereof the repayment of which has
been subordinated to the repayment of any other Consolidated Funded
Indebtedness.
"Consolidated Senior Secured Debt" means at any date the sum
(without duplication) of (i) Consolidated Mortgage Debt plus (ii)
Consolidated Subsidiary Debt plus (iii) all preferred stock of
Subsidiaries not owned by the Borrower and/or one or more of its wholly
owned Subsidiaries, valued at the higher of voluntary or involuntary
liquidation preference thereof.
"Consolidated Subsidiary" means at any date any Subsidiary or
other entity the accounts of which would be consolidated with those of
the Borrower in its consolidated financial statements if such
statements were prepared as of such date. For purposes of this Credit
Agreement, Specified Affiliates of the Borrower shall be classified as
Consolidated Subsidiaries.
"Consolidated Subsidiary Debt" means all Debt of Subsidiaries
of the Borrower (exclusive of Debt owed to the Borrower), determined in
accordance with GAAP on a consolidated basis.
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"Consolidated Tangible Net Worth" means, at any time,
consolidated stockholders' equity of the Borrower and its Consolidated
Subsidiaries determined as of such time in accordance with GAAP, with
no upward adjustments due to a revaluation of assets, minus all
Intangible Assets.
"Consolidated Total Capital" means, at any time, the sum of
(a) Consolidated Tangible Net Worth plus (b) Consolidated Funded
Indebtedness.
"Consolidated Unencumbered Coverage Ratio" means, as of the
date of determination, the ratio of (i) Consolidated Unencumbered
EBITDA to (ii) Consolidated Unencumbered Interest Expense.
"Consolidated Unencumbered EBITDA" means, as regards the
unencumbered properties of the Borrower and its Consolidated
Subsidiaries for any period, the sum of (a) net income from such
properties, plus (b) Consolidated Unencumbered Interest Expense, plus
(c) the amount of income taxes (or minus the amount of tax benefits)
associated with such properties, plus (d) depreciation and
amortization, determined in each case on a consolidated basis in
accordance with GAAP. Except as expressly provided otherwise, the
applicable period shall be for the four consecutive fiscal quarters
ending as of the date of determination.
"Consolidated Unencumbered Interest Expense" means, for the
Borrower and its Consolidated Subsidiaries for any period, the interest
expense and letter of credit fee expense determined on a consolidated
basis in accordance with GAAP, other than in respect of Debt which is
secured by a Lien on property of the Borrower or its Consolidated
Subsidiaries. Except as expressly provided otherwise, the applicable
period shall be for the four consecutive fiscal quarters ending as of
the date of determination.
"Consolidated Unencumbered Realty" means, for the Borrower and
its Subsidiaries, the book value of all realty (prior to deduction of
accumulated depreciation) minus the book value of all properties (prior
to deduction of accumulated depreciation) which are subject to any
Liens (other than those permitted under clauses (b) - (g) and clauses
(i) - (j) of Section 5.07).
"Consolidated Unsecured Debt" means all unsecured Debt of the
Borrower and its Subsidiaries.
"Constitutional Documents" in relation to any corporate Person
means the Certificate of Incorporation and Bylaws or other
constitutional documents of such corporate Person.
"Credit Agreement" shall have the meaning given to such term
in the introductory paragraph hereof.
"Debt" of any Person means at any date, without duplication,
(a) all obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments, (c) all unconditional obligations of such
Person to pay (as opposed to a contingent or conditional obligation of
such Person to pay) the deferred purchase price of property or
services, except security deposits, sums retained to secure
performance, reserves for capital improvements, trade accounts payable
and accrued expenses arising in the ordinary course of business, (d)
all Capitalized Lease Indebtedness, (e) all Debt of others secured by a
Lien on any asset of such Person, whether or not such Debt is assumed
by such Person (to the extent of the lesser of the amount of such Debt
and the book value of any assets subject to such Lien), (f) the maximum
amount of all letters of credit issued or acceptance facilities
established for the account of such Person and, without duplication,
all drafts drawn thereunder
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(other than letters of credit and acceptance facilities supporting
other Debt of such Person), (g) obligations under Interest Rate
Protection Agreements, (h) all indebtedness relating to or arising from
any Securities Transactions, (i) all instruments, obligations or
undertakings treated as indebtedness in accordance with GAAP, or
otherwise treated as indebtedness by S&P, Moody's or any other Ratings
Service (whether or not treated as indebtedness for purposes of GAAP)
and (j) all Debt of others Guaranteed by such Person (to the extent of
the lesser of the amount of such Debt Guaranteed or the amount of such
Guarantee); provided, however, Debt shall not include obligations under
Buy-Sell Agreements.
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or
both would, unless cured or waived, become an Event of Default.
"Defaulting Bank" means, at any time, any Bank that, at such
time, (i) has failed to make an Extension of Credit required pursuant
to the terms of this Credit Agreement, (ii) has failed to pay to the
Agent or any Bank an amount owed by such Bank pursuant to the terms of
the Credit Agreement or any other of the Credit Documents, or (iii) has
been deemed insolvent or has become subject to a bankruptcy or
insolvency proceeding or to a receiver, trustee or similar proceeding.
"Dollars" and "$" means lawful money of the United States of
America.
"Dollar Amount" means, in relation to any Debt denominated in
Dollars, the amount of such Debt.
"Domestic Lending Office" means, as to each Bank, its office
located at its address set forth in its Administrative Questionnaire
(or identified in its Administrative Questionnaire as its Domestic
Lending Office) or such other office as such Bank may hereafter
designate as its Domestic Lending office by notice to the Borrower and
the Agent.
"Environmental Laws" means any and all federal, state, local
and foreign statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, grants, licenses, agreements or other
governmental restrictions including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act,
the Superfund Amendments and Reauthorization Act, the Resource
Conservation and Recovery Act, the Toxic Substances Control Act, the
Clean Air Act and the Clean Water Act relating to the environment or to
emissions, discharges or releases of pollutants, contaminants,
petroleum or petroleum products, chemicals or industrial, toxic or
hazardous substances or wastes into the environment (including, without
limitation, ambient air, surface water, ground water or land) or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants,
contaminants, petroleum or petroleum products, chemicals or industrial,
toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"ERISA" means the Employment Retirement Income Security Act of
1974, as amended, or any successor statute.
"ERISA Group" means the Borrower and all members of a
controlled group of corporations and all trades or businesses (whether
or not incorporated) under common control which, together with the
Borrower, are treated as a single employer under Section 414 of the
Code.
"Eurodollar Borrowing" means any Borrowing consisting of
Eurodollar Loans.
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"Eurodollar Business Day" means any Business Day on which the
Agent and the Eurodollar Reference Bank are open for international
business (including dealings in Dollar deposits) in London.
"Eurodollar Lending Office" means, as to each Bank, its
office, branch or affiliate located at its address set forth in its
Administrative Questionnaire (or identified in its Administrative
Questionnaire as its Eurodollar Lending Office) or such other office,
branch or affiliate of such Bank as it may hereafter designate as its
Eurodollar Lending Office by notice to the Agent.
"Eurodollar Loan" means a Loan which bears interest at the
Adjusted Eurodollar Rate plus the Applicable Percentage pursuant to the
applicable Notice of Borrowing or Notice of Interest Rate Election.
"Eurodollar Reserve Percentage" means for any day, that
percentage (expressed as a decimal) which is in effect from time to
time under Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as such regulation may be amended
from time to time or any successor regulation, as the maximum reserve
requirement (including, without limitation, any basic, supplemental,
emergency, special, or marginal reserves) applicable with respect to
Eurocurrency liabilities as that term is defined in Regulation D (or
against any other category of liabilities that includes deposits by
reference to which the interest rate of Eurodollar Loans is
determined), whether or not the Bank has any Eurocurrency liabilities
subject to such reserve requirement at that time. Eurodollar Loans
shall be deemed to constitute Eurocurrency liabilities and as such
shall be deemed subject to reserve requirements without benefits of
credits for proration, exceptions or offsets that may be available from
time to time to a Bank. The Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the
Eurodollar Reserve Percentage.
"Event of Acceleration" means any of the events or conditions
set forth in Sections 6.01(g), (h) or (i) with respect to the Borrower.
"Event of Default" has the meaning set forth in Section 6.01.
"Existing Credit Agreement" has the meaning set forth in the
preamble.
"Existing Credit Facility" has the meaning set forth in the
preamble.
"Existing Letters of Credit" means those Letters of Credit
outstanding on the Closing Date and identified on Schedule 2.06(b)-1.
"Extension of Credit" means, as to any Bank, the making
(including extensions and conversions) of, or participation in, a Loan
by such Bank or the issuance or extension of, or participation in, a
Letter of Credit.
"Facility Fee" shall have the meaning given such term in
Section 2.15(a).
"Federal Funds Rate" means, for any day, the rate of interest
per annum (rounded upwards, if necessary, to the nearest whole multiple
of 1/100 of 1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding
such day, provided that (A) if such day is not a Business
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13
Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day and (B) if no such rate
is so published on such next preceding Business Day, the Federal Funds
Rate for such day shall be the average rate quoted to the Agent on such
day on such transactions as determined by the Agent.
"Financing Documents" means the Credit Agreement, the Notes,
the LOC Documents and the Guaranties, if any, in each case as amended
and in effect from time to time.
"Fitch" means Fitch, Inc., a successor of the ratings
businesses of Fitch IBCA, Inc. and Duff & Xxxxxx Credit Rating Co.,
Inc., and its successors and assigns in the business of rating
securities.
"Foreign Government" means any government other than that of
the United States of America or any political subdivision thereof.
"Foreign Person" means (a) any Foreign Government, (b) any
agency of a Foreign Government, (c) any form of business enterprise
organized under the laws of any country other than the United States of
America or its possessions or any political subdivision thereof or (d)
any form of business enterprise owned or controlled by any of the
Persons described in clauses (a), (b) or (c) of this definition.
"Funds From Operations" means the Borrower's net income
(loss), excluding gains (losses) from restructuring of indebtedness and
sales of property, plus depreciation and amortization, and after
adjustments for unconsolidated partnerships and joint ventures as
hereafter provided. Notwithstanding contrary treatment under GAAP, for
purposes hereof, "Funds From Operations" shall include, and be adjusted
to take into account, the Borrower's interests in unconsolidated
partnerships and joint ventures, on the same basis as consolidated
partnerships and subsidiaries, as provided in the "white paper" issued
in March 1995 by the National Association of Real Estate Investment
Trusts, a copy of which is attached hereto as Schedule 5.16.
"GAAP" means generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms of
Section 1.02.
"Government" means the federal government of the United States
of America or any agency thereof.
"Governmental Authority" means any federal, state. local or
foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Group" or "Group of Loans" means at any time a group of Loans
consisting of (a) all Base Rate Loans at such time or (b) all
Eurodollar Loans having the same Interest Period at such time; provided
that, if a Loan of any particular Bank is converted to or made as a
Base Rate Loan pursuant to Sections 8.02 or 8.04, such Loan shall be
included in the same Group or Groups of Loans from time to time as if
it had not been so converted or made as a Base Rate Loan.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt
or other obligation of any other Person and, without limiting the
generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of such Person (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt or
other obligation (whether by virtue of partnership arrangements, by
agreement to keep-well, to purchase assets, goods, securities or
services, to take-or-pay, or to
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14
maintain financial statement conditions or otherwise) or (b) entered
into for the purpose of assuring in any other manner the obligee of
such Debt or other obligation of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part); provided
that the term Guarantee shall not include endorsement for collection or
deposit in the ordinary course of business.
"Guarantor" means any party that may give a guaranty of the
loans and obligations hereunder in substantially the form of Schedule
5.26 or other form reasonably satisfactory to the Agent and the
Majority Banks, in each case as amended, supplemented or otherwise
modified from time to time.
"Guaranties" means those guaranty agreements, if any, given in
respect of the loans and obligations owing under this Credit Agreement,
as amended, supplemented or otherwise modified from time to time.
"Hazardous Substance" means any toxic or hazardous substance,
including petroleum and its derivatives presently regulated under the
Environmental Laws.
"Intangible Assets" shall mean, as of the date of any
determination thereof, the total amount of all assets of the Borrower
and its Subsidiaries consisting of goodwill patents, trade names,
trademarks, copyrights, franchises, experimental expense, organization
expense, unamortized debt discount and expense, deferred assets (other
than prepaid insurance and prepaid taxes), the excess of cost of shares
acquired over book value of related assets and such other assets as are
properly classified as "intangible assets" in accordance with GAAP.
"Interbank Offered Rate" means, for the Interest Period for
each Eurodollar Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate
(rounded upwards, if necessary, to the nearest whole multiple of 1/100
of 1%) equal to the rate of interest, determined by the Agent on the
basis of the offered rates for deposits in dollars for a period of time
corresponding to such Interest Period (and commencing on the first day
of such Interest Period), appearing on Telerate Page 3750 (or, if, for
any reason, Telerate Page 3750 is not available, the Reuters Screen
LIBO Page) as of approximately 11:00 A.M. (London time) two (2)
Business Days before the first day of such Interest Period. As used
herein, "Telerate Page 3750" means the display designated as page 3750
by Dow Xxxxx Markets, Inc. (or such other page as may replace such page
on that service for the purpose of displaying the British Bankers
Association London interbank offered rates) and "Reuters Screen LIBO
Page" means the display designated as page "LIBO" on the Reuters
Monitor Money Rates Service (or such other page as may replace the LIBO
page on that service for the purpose of displaying London interbank
offered rates of major banks).
"Interest Period" means, with respect to each Eurodollar Loan,
a period commencing on the date of Borrowing specified in the
applicable Notice of Borrowing or on the date specified in the
applicable Notice of Interest Rate Election and ending, one, two, three
or six months thereafter, as the Borrower may elect in the applicable
Notice; provided that:
(i) any Interest Period which would otherwise
end on a day which is not a Eurodollar Business Day shall be
extended to the next succeeding Eurodollar Business Day unless
such Eurodollar Business Day falls in another calendar month,
in which case such Interest Period shall end on the next
preceding Eurodollar Business Day;
(ii) any Interest Period which begins on the last
Eurodollar Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the
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15
calendar month at the end of such Interest Period) shall end
on the last Eurodollar Business Day of a calendar month; and
(iii) no Interest Period shall extend beyond the
Termination Date.
"Interest Rate Protection Agreement" means interest rate swap
agreement or interest rate future, option, cap, collar or other hedging
arrangements.
"Investment" means any investment in any Person, whether by
means of share purchase, capital contribution (including, without
limitation, subordinated debt), loan, time deposit, warrant, option or
otherwise.
"Investment Policy" means the Borrower's investment policy
currently in effect as of the date hereof and as previously disclosed
in writing to the Banks, and as amended from time to time by Borrower
with the approval of Majority Banks, which approval shall not be
unreasonably delayed, it being agreed and understood that in the event
Agent does not notify in writing within ten (10) days following the
date of Agent's receipt of Borrower's request for approval of an
amendment to the Investment Policy that the Majority Banks have
disapproved the requested amendment, the Majority Banks shall be deemed
to have approved the amended investment Policy.
"Issuing Bank" means Bank of America.
"Issuing Bank Fees" shall have the meaning assigned to such
term in Section 2.15(c)(ii).
"Letter of Credit" means the Existing Letters of Credit and
any letter of credit issued by the Issuing Bank for the account of the
Borrower in accordance with the terms of Section 2.01(b).
"Letter of Credit Fee" shall have the meaning given such term
in Section 2.15(c)(i).
"Liens" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect
of such asset. For the purposes of this Credit Agreement, the Borrower
or any Subsidiary of the Borrower shall be deemed to own subject to a
Lien any asset which it has acquired or holds subject to the interest
of a vendor or lessor under any conditional sales agreement, capital
lease or other title retention agreement relating to such asset.
"Loan" or "Loans" means the Revolving Loans and/or Swingline
Loans or a Eurodollar Loan and/or Base Rate Loan, as appropriate.
"LOC Commitment" means the commitment of the Issuing Bank to
issue, and to honor payment obligations under, Letters of Credit
hereunder and with respect to each Bank, the commitment of each Bank to
purchase participation interests in the Letters of Credit up to such
Bank's LOC Committed Amount as specified in Schedule 2.01(a), as such
amount may be reduced from time to time in accordance with the
provisions hereof.
"LOC Committed Amount" means, collectively, the aggregate
amount of all of the LOC Commitments of the Banks to issue and
participate in Letters of Credit as referenced in Section 2.01(b) and,
individually, the amount of each Bank's LOC Commitment as specified in
Schedule 2.01(a).
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16
"LOC Documents" means, with respect to any Letter of Credit,
such Letter of Credit, any amendments thereto, any documents delivered
in connection therewith, any application therefor, and any agreements,
instruments, guarantees or other documents (whether general in
application or applicable only to such Letter of Credit) governing or
providing for (i) the rights and obligations of the parties concerned
or at risk or (ii) any collateral security for such obligations.
"LOC Obligations" means, at any time, the sum of (i) the
maximum amount which is, or at any time thereafter may become,
available to be drawn under Letters of Credit then outstanding,
assuming compliance with all requirements for drawings referred to in
such Letters of Credit plus (ii) the aggregate amount of all drawings
under Letters of Credit honored by the Issuing Bank but not theretofore
reimbursed.
"Long-Term Debt" shall mean, at any time, any senior unsecured
debt obligations outstanding at such time with a maturity more than one
(1) year after the date of any determination hereunder.
"Majority Banks" means, at any time, Banks having more than
seventy-five percent (75%) of the Revolving Commitments, or if the
Revolving Commitments have been terminated, Banks having more than
seventy-five percent (75%) of the aggregate principal amount of the
Obligations outstanding (taking into account in each case Participation
Interests or the obligation to participate therein); provided that the
Commitments of, and the outstanding principal amount of Obligations
(taking into account in each case Participation Interests or the
obligation to participate therein) owing to, a Defaulting Bank shall be
excluded for purposes hereof in making a determination of Majority
Banks.
"Margin Stock" has the meaning assigned to such term in
Regulation U (to the extent applicable).
"Material Adverse Effect" means a material adverse effect on
(i) the condition (financial or otherwise), operations, business,
assets, liabilities or prospects of the Borrower and its Subsidiaries
taken as a whole, (ii) the ability of the Borrower to perform any
material obligation under the Financing Documents, or (iii) the rights
and remedies of the Agent and the Banks under the Financing Documents.
"Material Plan" means a Plan or Plans having aggregate
Unfunded Liabilities in excess of $5,000,000.
"Material Subsidiary" means any Subsidiary of the Borrower
with total assets (prior to giving effect to depreciation or
amortization) in excess of $1,000,000.
"Moody's" means Xxxxx'x Investors Service, Inc., or any
successor or assignee of the business of such company in the business
of rating securities.
"Multiemployer Plan" means at any time an employee pension
benefit plan within the meaning of Section 4001(a)(3) of ERISA to which
any member of the ERISA Group is then making or accruing an obligation
to make contributions or has within the preceding five (5) plan years
made contributions, including for these purposes any Person which
ceased to be a member of the ERISA Group during such five (5) year
period.
"Note" or "Notes" means any of the Revolving Notes.
"Notice of Borrowing" has the meaning given to such term in
Section 2.02(a).
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"Notice of Interest Rate Election" has the meaning given to
such term in Section 2.10(a).
"Obligations" means, collectively, the Revolving Loans,
Swingline Loans and LOC Obligations.
"Parent" means, with respect to any Bank, any Person as to
which such Bank is a Subsidiary.
"Participant" means a bank or other institution which assumes,
in accordance with Section 9.06(b), a participating interest with
respect to the Loans, the Notes and this Credit Agreement.
"Participation Interest" means the purchase by a Bank of a
participation in LOC Obligations as provided in Section 2.06(b), in
Swingline Loans as provided in Section 2.07(b), and in Revolving Loans
as provided in Section 9.04.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity
or organization, including a government or political subdivision or an
agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan as
defined in Subsection 3(2) of ERISA (other than a Multiemployer Plan)
which is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code and either (a) is maintained,
or contributed to, by any member of the ERISA Group for employees of
any member of the ERISA Group or (b) has at any time within the
preceding five (5) years been maintained or contributed to, by any
Person which was at such time a member of the ERISA Group for employees
of any Person which was at such time a member of the ERISA Group.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by Bank of America as its prime rate in
effect at its principal office in Charlotte, North Carolina, with each
change in the Prime Rate being effective on the date such change is
publicly announced as effective (it being understood and agreed that
the Prime Rate is a reference rate used by Bank of America in
determining interest rates on certain loans and is not intended to be
the lowest rate of interest charged on any extension of credit by Bank
of America to any debtor).
"Quarterly Period" means a three month period ending on the
last Business Day of each March, June, September and December.
"Quoted Rate" means, with respect to a Quoted Rate Swingline
Loan, the fixed or floating percentage rate per annum, if any, offered
by the Swingline Bank and accepted by the Borrower in accordance with
the provisions hereof.
"Quoted Rate Swingline Loan" means a Swingline Loan bearing
interest at the Quoted Rate.
"Ratings Services" shall have the meaning provided in the
definition of "Applicable Percentage".
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"REIT" means a real estate investment trust as defined in
Sections 856-860 of the Internal Revenue Code of 1986, as amended and
any successor provision.
"Regulation T" means Regulation T of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Regulation X" means Regulation X of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Release" has the meaning given to such term in Section
4.06(a) hereof.
"Revolving Commitment" means, with respect to each Bank, the
commitment of such Bank to make Revolving Loans in an aggregate
principal amount at any time outstanding of up to such Bank's Revolving
Committed Amount.
"Revolving Commitment Percentage" means, for each Bank, a
fraction (expressed as a decimal) the numerator of which is the
Revolving Committed Amount of such Bank at such time and the
denominator of which is the Aggregate Revolving Committed Amount at
such time. The initial Revolving Commitment Percentages are set out on
Schedule 2.01(a).
"Revolving Committed Amount" means, collectively, the
aggregate amount of all of the Revolving Commitments and, individually,
the amount of each Bank's Revolving Commitment as specified in Schedule
2.01(a), as such amounts may be reduced from time to time in accordance
with the provisions hereof.
"Revolving Banks" means Banks holding Revolving Commitments,
as identified on Schedule 2.01(a) and their successors and assigns.
"Revolving Loans" shall have the meaning assigned to such term
in Section 2.01(a).
"Revolving Note" or "Revolving Notes" means the promissory
notes of the Borrower in favor of each of the Revolving Banks
evidencing the Revolving Loans and Swingline Loans in substantially the
form attached as Schedule 2.03(a), individually or collectively, as
appropriate, as such promissory notes may be amended, modified,
supplemented, extended, renewed or replaced from time to time.
"Securities Transaction" means any purchase or other
acquisition (including any such transaction effected by way of
partnership formation, upreit, merger, amalgamation or consolidation)
by the Borrower or any of its Subsidiaries subsequent to the date
hereof of any real estate asset or any entity which has as its
principal assets, real estate, through which Borrower or any of its
Subsidiaries issue consideration comprised principally of its
respective stock or securities, including, without limitation, common
stock, preferred stock, and hybrid securities.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw Hill, Inc., or any successor or assignee of the business of such
division in the business of rating securities.
"Solvent" means, with respect to any person on a particular
date, that on such date (a) the fair value of the property of such
Person is greater than the total amount of liabilities,
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including, without limitation, contingent liabilities, of such Person,
(b) the present fair saleable value of the assets of such Person is not
less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and
matured, (c) such Person is able to realize upon its assets and pay its
debts and other liabilities, contingent obligations and other
commitments as they mature, (d) such Person does not intend to, and
does not believe that it will, incur debts or liabilities beyond such
Person's ability to pay as such debts and liabilities mature, and (e)
such Person is not engaged in a business or a transaction, and is not
about to engage in a business or a transaction, for which such Person's
property would constitute unreasonably small capital after giving due
consideration to the prevailing practice in the industry in which such
Person is engaged. In computing the amount of contingent liabilities at
any time, it is intended that such liabilities will be computed at the
amount which, in light of all the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
"Specified Affiliate" means any corporation, association or
other business entity formed for the purpose of earning income not
qualified as "rents from real property" under applicable provisions of
the Code, in which the Borrower owns substantially all of the economic
interest but less than 10% of the voting interests, and the remaining
economic and voting interests are subject to restrictions requiring
that ownership of such interests be held by officers, directors or
employees of the Borrower.
"Subsidiary" means, with respect to any Person, any
corporation or other entity of which securities or other ownership
interests having ordinary voting power to elect a majority of the board
of directors or other persons performing similar functions are at such
time directly or indirectly owned by such Person.
"Subsidiary Guarantor" means any Subsidiary of the Borrower
which is a Guarantor.
"Swingline Bank" means Bank of America.
"Swingline Commitment" means the commitment of the Swingline
Bank to make Swingline Loans in an aggregate principal amount at any
time outstanding up to the Swingline Committed Amount and the
commitment of the Banks to purchase participation interests in the
Swingline Loans up to their respective Revolving Commitment Percentage
as provided in Section 2.07(b), as such amounts may be reduced from
time to time in accordance with the provisions hereof.
"Swingline Committed Amount" means the amount of the Swingline
Bank's Commitment as specified in Section 2.01(c).
"Swingline Loan" means a swingline revolving loan made by the
Swingline Bank pursuant to the provisions of Section 2.01(c).
"Termination Date" means July 2, 2004, or such earlier date on
which the Commitments shall terminate, whether by acceleration or
otherwise.
"UCC" means, with respect to any jurisdiction, the Uniform
Commercial Code as then in effect in that jurisdiction.
"Unfunded Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (a) the present value of all
benefits under such Plan exceeds (b) the fair market value of all Plan
assets allocable to such benefits (excluding any accrued but unpaid
contributions), all
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determined as of the then most recent valuation date for such Plan, but
only to the extent that such excess represents a potential liability of
a member of the ERISA Group to the PBGC or any other Person under Title
IV of ERISA.
"Wholly Owned Consolidated Subsidiary" means, with respect to
any Person, any Consolidated Subsidiary of such Person all of the
shares of capital stock or other ownership interests of which (except
directors' qualifying shares) are at the time directly or indirectly
owned by such Person.
Section 1.02 Accounting Terms.
Unless otherwise specified herein, all accounting terms used herein
shall be interpreted, all accounting determinations hereunder shall be made, and
all financial statements and certificates required to be delivered hereunder
shall be prepared in accordance with GAAP in effect as of the Closing Date;
provided that, if the Borrower notifies the Agent that the Borrower wishes to
amend any covenant in Article V to eliminate the effect of any change in GAAP on
the operation of such covenant (or if the Agent notifies the Borrower that the
Majority Banks wish to amend Article V for such purpose), then the Borrower's
compliance with such covenant shall be determined on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective, until either
such notice is withdrawn or such covenant is amended in a manner satisfactory to
the Borrower and the Majority Banks.
Section 1.03 Other Definitional Provisions.
References to "Articles", "Sections" "subsections", "Schedules" and
"Exhibits" shall be to Articles, Sections, subsections, Schedules and Exhibits,
respectively, of this Credit Agreement unless otherwise specifically provided.
Any of the terms defined in Section 1.01 or referred to in Section 1.02 may,
unless the context otherwise requires, be used in the singular or the plural
depending on the reference. In this Credit Agreement, the word "including" means
"including without limitation" and the word "includes" means "includes without
limitation." Terms defined in this Credit Agreement and used, but not otherwise
defined in the Exhibits and Schedules, shall have the meaning ascribed to such
terms in this Credit Agreement.
ARTICLE II
THE LOANS
Section 2.01 Commitments.
(a) Revolving Commitments. During the Commitment Period,
subject to the terms and conditions hereof, each Revolving Bank
severally agrees to make revolving loans (the "Revolving Loans") to the
Borrower in the amount of such Bank's Revolving Commitment Percentage
of such Revolving Loans for the purposes hereinafter set forth;
provided that (i) with regard to the Revolving Banks collectively, the
aggregate principal amount of Obligations at any time shall not exceed
the Aggregate Revolving Committed Amount and (ii) with regard to each
Revolving Bank individually, such Revolving Bank's Revolving Commitment
Percentage of Obligations at any time shall not exceed such Revolving
Bank's Revolving Committed Amount. Revolving Loans shall be made by the
Revolving Banks ratably in accordance with their respective Revolving
Commitment Percentages. Revolving Loans may consist of Base Rate Loans
or Eurodollar Loans, or a combination thereof, as the Borrower may
request, and may be repaid and reborrowed in accordance with the
provisions hereof. Revolving Loans consisting of (A) Eurodollar Loans
shall be in the minimum aggregate principal amount of One Million
Dollars ($1,000,000) and integral multiples of One Hundred Thousand
Dollars ($100,000) in excess thereof, and (B) Base Rate Loans shall be
in the minimum aggregate principal amount of
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Five Hundred Thousand Dollars ($500,000) and integral multiples of One
Hundred Thousand Dollars ($100,000) in excess thereof. Notwithstanding
anything contained herein to the contrary, the Borrower shall be
limited to a maximum number of twenty (20) Eurodollar Loans outstanding
at any time.
(b) Letter of Credit Commitment. During the Commitment
Period, subject to the terms and conditions hereof and of the LOC
Documents, if any, and such other terms and conditions which the
Issuing Bank may reasonably require, the Issuing Bank shall issue, and
the Banks shall participate severally in, such Letters of Credit as the
Borrower may request, in form acceptable to the Issuing Bank, for the
purposes hereinafter set forth; provided that (i) the aggregate amount
of LOC Obligations shall not exceed TEN MILLION DOLLARS ($10,000,000)
at any time (the "LOC Committed Amount"), (ii) with regard to the
Revolving Banks collectively, the aggregate principal amount of
Obligations at any time shall not exceed the Aggregate Revolving
Committed Amount and (iii) with regard to each Revolving Bank
individually, such Revolving Bank's Revolving Commitment Percentage of
Obligations at any time shall not exceed such Revolving Bank's
Revolving Committed Amount. Letters of Credit issued hereunder shall
have an expiry date not more than one year from the date of issuance or
extension, and may not extend beyond the Termination Date.
(c) Swingline Commitment. During the Commitment Period,
subject to the terms and conditions hereof, the Swingline Bank agrees
to make certain revolving loans (the "Swingline Loans") to the
Borrower; provided that (i) the aggregate principal amount of Swingline
Loans shall not exceed FIVE MILLION DOLLARS ($5,000,000) (the
"Swingline Committed Amount"), (ii) with regard to the Revolving Banks
collectively, the aggregate principal amount of Obligations at any time
shall not exceed the Aggregate Revolving Committed Amount and (iii)
with regard to each Revolving Bank individually, such Revolving Bank's
Revolving Commitment Percentage of Obligations at any time shall not
exceed such Revolving Bank's Revolving Committed Amount. Swingline
Loans may consist of Base Rate Loans or Quoted Rate Swingline Loans, or
a combination thereof, as the Borrower may request, and may be repaid
and reborrowed in accordance with the provisions hereof. Swingline
Loans shall be in a minimum principal amount of One Hundred Thousand
Dollars ($100,000) and integral multiples of One Hundred Thousand
Dollars ($100,000) in excess thereof.
(d) Increase in Revolving Commitments. Subject to the
terms and conditions set forth herein, upon thirty (30) days advance
written notice to the Agent, the Borrower shall have the right, at any
time and from time to time during the Commitment Period, to increase
the Revolving Commitments by up to FIFTY MILLION DOLLARS ($50,000,000)
in the aggregate (to an Aggregate Revolving Committed Amount of up to
TWO HUNDRED MILLION DOLLARS ($200,000,000); provided that (i) any such
increase shall be in a minimum principal amount of $10,000,000 and
integral multiples of $5,000,000 in excess thereof (or the remaining
amount, if less), (ii) if any Revolving Loans are outstanding at the
time of any such increase, the Borrower shall make such payments and
adjustments on the Revolving Loans (including payment of any
break-funding amount owing under Section 2.12) as necessary to give
effect to the revised commitment percentages and commitment amounts of
the Banks and (iii) the conditions to Extensions of Credit in Section
3.02 shall be true and correct. An increase in the Aggregate Revolving
Committed Amount hereunder shall be subject to satisfaction of the
following: (A) the amount of such increase shall be offered first to
the existing Banks, and in the event the additional commitments which
existing Banks are willing to take shall exceed the amount requested by
the Borrower, then in proportion to the commitments of such existing
Banks willing to take additional commitments, and (B) if the amount of
the additional commitments requested by the Borrower shall exceed the
additional commitments which the existing Banks are willing to take,
then the Borrower may invite other commercial banks and
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financial institutions reasonably acceptable to the Agent to join this
Credit Agreement as Banks hereunder for the portion of commitments not
taken by existing Banks, provided that such other commercial banks and
financial institutions shall enter into a Bank Joinder Agreement in the
form attached hereto as Schedule 2.01(d), and provide such other
documentation to give effect thereto as the Agent and the Borrower may
reasonably request. In connection with any increase in the Revolving
Commitments pursuant to this Section, Schedule 2.01(a) shall be revised
to reflect the modified commitment percentages and commitments of the
Banks.
Section 2.02 Method of Borrowing.
(a) The Borrower shall give the Agent and each Bank
notice in substantially the form of Schedule 2.02 (a "Notice of
Borrowing") not later than (i) 11:00 A.M. (Charlotte, North Carolina
time) on the Business Day before the date of each Base Rate Borrowing
and (ii) 11:00 A.M. (Charlotte, North Carolina time) on the third (3rd)
Eurodollar Business Day before each Eurodollar Borrowing, specifying:
(i) the amount of the proposed Borrowing;
(ii) the date of such Borrowing, which shall be a
Business Day in the case of a Base Rate Borrowing or a
Eurodollar Business Day in the case of a Eurodollar Borrowing;
(iii) whether the Loans comprising such Borrowing
are to be Base Rate Loans or Eurodollar Loans, or a
combination thereof, and
(iv) in the case of a Eurodollar Borrowing, the
duration of the initial Interest Period applicable thereto,
subject to the provisions of the definition of Interest
Period.
(b) Upon receipt of a Notice of Borrowing, the Agent
shall promptly notify each Bank of the contents thereof and of such
Banks ratable share of such Borrowing and such Notice of Borrowing
shall not thereafter be revocable by the Borrower.
(c) Not later than (i) 2:00 P.M., (Charlotte, North
Carolina time) on the date of each Base Rate Borrowing, and (ii) 11:00
A.M. (Charlotte, North Carolina time) on the date of each Eurodollar
Borrowing, each Bank shall make available its ratable share of such
Borrowing, in federal or other funds immediately available in
Charlotte, North Carolina, to the Agent at its address specified in or
pursuant to Section 9.01. Unless any applicable condition specified in
Article III has not been satisfied, the Agent will make the funds so
received from the Banks available to the Borrower at an account of the
Borrower with the Agent immediately after being made available to the
Agent at the Agent's aforesaid address in immediately available funds.
Section 2.03 Notes.
(a) The Revolving Loans and Swingline Loans shall be
evidenced by a duly executed Revolving Note in favor of each Bank.
(b) Upon receipt of each Bank's Note pursuant to Section
3.01(b), the Agent shall forward such Note to such Bank via overnight
courier service. Each Bank shall record on its Note the date, amount
and maturity of each Loan made by it and the date and amount of each
payment of principal made by the Borrower with respect thereto, and
prior to any transfer of its Note shall endorse on the schedule forming
a part thereof appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding; provided
that the failure
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of any Bank to make any such recordation or endorsement shall not
affect the obligations of the Borrower hereunder or under such Note.
Each Bank is hereby irrevocably authorized by the Borrower so to
endorse its Note and to attach to and make a part of its Note a
continuation of any such schedule as and when required.
Section 2.04 Scheduled Termination of Commitments; Maturity of
Loans.
(a) The Commitments shall terminate on the Termination
Date and any Loans then outstanding (together with accrued interest
thereon) and all accrued fees and other amounts payable hereunder
(including all amounts payable under Section 2.12) shall be due and
payable in full on such date. Each repayment pursuant to this Section
2.04(a) shall be made together with accrued interest to the date of
payment, and shall be applied ratably to payment of the Loans of the
several Banks in accordance with their respective Revolving Commitment
Percentages.
(b) Within the foregoing limits of this Section 2.04,
each required payment or prepayment shall be applied to the outstanding
Group or Groups of Loans as the Borrower may designate to the Agent not
less than five (5) Business Days or five (5) Eurodollar Business Days,
as the case may be, prior to the date required for such payment or
prepayment or failing such designation by the Borrower, as the Agent
may specify by notice to the Borrower and the Banks.
Section 2.05 Interest Rates.
(a) Each Base Rate Loan shall bear interest on the
outstanding principal amount thereof, for each day from the date such
Loan is made until it becomes due, at a rate equal to the Base Rate for
such day plus the Applicable Percentage. Such interest shall be payable
quarterly in arrears on the last day of each Quarterly Period and on
each date a Base Rate Loan is converted to a Eurodollar Loan. Any
overdue principal of or interest on any Base Rate Loan shall bear
interest, payable on demand, for each day until paid at a rate per
annum equal to the sum of 2.00% plus the rate otherwise applicable to
Base Rate Loans for such day.
(b) Each Eurodollar Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period
applicable thereto, at a rate equal to the Adjusted Eurodollar Rate for
such Interest Period plus the Applicable Percentage. Such interest
shall be payable for each Interest Period on the last day thereof and,
if such Interest Period is longer than 3 months, at intervals of 3
months after the first day thereof. Any overdue principal of or
interest on any Eurodollar Loan shall bear interest, payable on demand
for each day until paid at a rate per annum equal to the sum of 2.00%
plus (i) for each day during any Interest Period applicable to such
Eurodollar Loan, the rate applicable to such Eurodollar Loan for such
day, and (ii) for each day after the end of such Interest Period, the
sum of 2.00% plus the rate applicable to Base Rate Loans for such day.
(c) Each Swingline Loan shall bear interest on the
outstanding principal amount thereof, for each day from the date such
Loan is made until it becomes due, at a rate equal to the Base Rate
plus Applicable Percentage, or the Quoted Rate, as applicable. Such
interest shall be payable quarterly on the last day of each Quarterly
Period in the case of Base Rate Loans, and on the last day of each
Interest Period, or if the Interest Period is longer than three (3)
months, at intervals of three (3) months after the first day thereof,
in the case of Quoted Rate Swingline Loans. Any overdue principal of or
interest on any Swingline Loans shall bear interest, payable on demand,
for each day until paid at a rate per annum equal to the sum of 2.00%
plus the rate otherwise applicable to such Swingline Loans for such day
(or if no rate is otherwise applicable for such day, the Base Rate).
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(d) The Agent shall determine each interest rate applicable to the
Loans hereunder. The Agent shall give prompt notice to the Borrower and the
Banks by facsimile, telex or cable of each rate of interest so determined, and
its determination thereof shall be conclusive in the absence of manifest error.
(e) The Eurodollar Reference Bank agrees to use its best efforts
to furnish quotations to the Agent as contemplated by this Section 2.05. If the
Eurodollar Reference Bank does not provide a timely quotation, the provisions of
Section 8.01 shall apply.
Section 2.06 Letters of Credit.
(a) Notice and Reports. Except for those Letters of Credit
described on Schedule 2.06(a) which shall be issued on the Closing Date, the
request for the issuance of a Letter of Credit shall be submitted by the
Borrower to the Issuing Bank at least three (3) Business Days prior to the
requested date of issuance (or such shorter period as may be agreed by the
Issuing Bank). A form of Notice of Request for Letter of Credit is attached as
Schedule 2.06(b)-2. The Issuing Bank will provide copies of the Letters of
Credit to the Agent and the Banks quarterly and more frequently upon request.
(b) Participation. Each Bank, with respect to the Existing Letters
of Credit, hereby purchases a participation interest in such Existing Letters of
Credit, and with respect to Letters of Credit issued on or after the Closing
Date, upon issuance of a Letter of Credit, shall be deemed to have purchased
without recourse a risk participation from the applicable Issuing Bank in such
Letter of Credit and the obligations arising thereunder, in each case in an
amount equal to its Revolving Commitment Percentage of the obligations under
such Letter of Credit and shall absolutely and unconditionally assume, and be
obligated to pay to the Issuing Bank therefor and discharge when due, its pro
rata share of the obligations arising under such Letter of Credit. Without
limiting the scope and nature of each Bank's participation in any Letter of
Credit, to the extent that the Issuing Bank has not been reimbursed as required
hereunder or under any such Letter of Credit, each such Bank shall pay to the
Issuing Bank its pro rata share of such unreimbursed drawing in same day funds
on the day of notification by the Issuing Bank of an unreimbursed drawing
pursuant to the provisions of subsection (d) hereof. The obligation of each Bank
to so reimburse the Issuing Bank shall be absolute and unconditional and shall
not be affected by the occurrence of a Default, an Event of Default or any other
occurrence or event. Any such reimbursement shall not relieve or otherwise
impair the obligation of the Borrower to reimburse the Issuing Bank under any
Letter of Credit, together with interest as hereinafter provided. The Borrower
agrees, to the fullest extent it may effectively do so under applicable law,
that each Bank which holds a participation in a Letter of Credit may exercise
rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of the Borrower in the amount of such participation.
(c) Reimbursement. In the event of any drawing under any Letter of
Credit, the Issuing Bank will promptly notify the Borrower. Unless the Borrower
shall immediately notify the Issuing Bank that the Borrower intends to otherwise
reimburse the Issuing Bank for such drawing, the Borrower shall be deemed to
have requested that the Banks make a Revolving Loan in the amount of the drawing
as provided in subsection (e) hereof on the related Letter of Credit, the
proceeds of which will be used to satisfy the related reimbursement obligations.
The Borrower promises to reimburse the Issuing Bank on the day of drawing under
any Letter of Credit (either with the proceeds of a Revolving Loan obtained
hereunder or otherwise) in same day funds. If the Borrower shall fail to
reimburse the Issuing Bank as provided hereinabove, the unreimbursed amount of
such drawing shall bear interest payable on demand at a per annum rate equal to
the Base Rate plus the sum of (i) the Applicable Percentage and (ii) two percent
(2%). The Borrower's
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reimbursement obligations hereunder shall be absolute and unconditional under
all circumstances irrespective of any rights of setoff, counterclaim or defense
to payment the Borrower may claim or have against the Issuing Bank, the Agent,
the Banks, the beneficiary of the Letter of Credit drawn upon or any other
Person, including without limitation any defense based on any failure of the
Borrower to receive consideration or the legality, validity, regularity or
unenforceability of the Letter of Credit. The Issuing Bank will promptly notify
the other Banks of the amount of any unreimbursed drawing and each Bank shall
promptly pay to the Agent for the account of the Issuing Bank in Dollars and in
immediately available funds, the amount of such Bank's pro rata share of such
unreimbursed drawing. Such payment shall be made on the day such notice is
received by such Bank from the Issuing Bank if such notice is received at or
before 2:00 P.M. (Charlotte, North Carolina time) otherwise such payment shall
be made at or before 12:00 Noon (Charlotte, North Carolina time) on the Business
Day next succeeding the day such notice is received. If such Bank does not pay
such amount to the Issuing Bank in full upon such request, such Bank shall, on
demand, pay to the Agent for the account of the Issuing Bank interest on the
unpaid amount during the period from the date of such drawing until such Bank
pays such amount to the Issuing Bank in full at a rate per annum equal to, if
paid within two (2) Business Days of the date that such Bank is required to make
payments of such amount pursuant to the preceding sentence, the Federal Funds
Rate and thereafter at a rate equal to the Base Rate. Each Bank's obligation to
make such payment to the Issuing Bank, and the right of the Issuing Bank to
receive the same, shall be absolute and unconditional, shall not be affected by
any circumstance whatsoever and without regard to the termination of this Credit
Agreement or the Commitments hereunder, the existence of a Default or Event of
Default or the acceleration of the obligations of the Borrower hereunder and
shall be made without any offset, abatement, withholding or reduction
whatsoever. Simultaneously with the making of each such payment by a Bank to the
Issuing Bank, such Bank shall, automatically and without any further action on
the part of the Issuing Bank or such Bank, acquire a participation in an amount
equal to such payment (excluding the portion of such payment constituting
interest owing to the Issuing Bank) in the related unreimbursed drawing portion
of the LOC Obligation and in the interest thereon and in the related LOC
Documents, and shall have a claim against the Borrower with respect thereto.
(d) Repayment with Revolving Loans. On any day on which the
Borrower shall have requested, or been deemed to have requested, a Revolving
Loan advance to reimburse a drawing under a Letter of Credit, the Agent shall
give notice to the Banks that a Revolving Loan has been requested or deemed
requested by the Borrower to be made in connection with a drawing under a Letter
of Credit, in which case a Revolving Loan advance comprised of Base Rate Loans
(or Eurodollar Loans to the extent the Borrower has complied with the procedures
of Section 2.02(a) with respect thereto) shall be immediately made to the
Borrower by all Banks (notwithstanding any termination of the Commitments
pursuant to Section 6.01) pro rata based on the respective Revolving Commitment
Percentages of the Banks (determined before giving effect to any termination of
the Commitments pursuant to Section 6.01) and the proceeds thereof shall be paid
directly to the Issuing Bank for application to the respective LOC Obligations.
Each such Bank hereby irrevocably agrees to make its pro rata share of each such
Revolving Loan immediately upon any such request or deemed request in the
amount, in the manner and on the date specified in the preceding sentence
notwithstanding (i) the amount of such borrowing may not comply with the minimum
amount for advances of Revolving Loans otherwise required hereunder, (ii)
whether any conditions specified in Section 3.02 are then satisfied, (iii)
whether a Default or an Event of Default then exists, (iv) failure for any such
request or deemed request for Revolving Loan to be made by the time otherwise
required hereunder, (v) whether the date of such borrowing is a date on which
Revolving Loans are otherwise permitted to be made hereunder or (vi) any
termination of the Commitments relating thereto immediately prior to or
contemporaneously with such borrowing. In the event that any Revolving Loan
cannot for any reason be made on the date otherwise required above (including,
without limitation, as a result of the commencement of a proceeding under the
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Bankruptcy Code with respect to the Borrower), then each such Bank hereby agrees
that it shall forthwith purchase (as of the date such borrowing would otherwise
have occurred, but adjusted for any payments received from the Borrower on or
after such date and prior to such purchase) from the Issuing Bank such
participation in the outstanding LOC Obligations as shall be necessary to cause
each such Bank to share in such LOC Obligations ratably (based upon the
respective Revolving Commitment Percentages of the Banks (determined before
giving effect to any termination of the Commitments pursuant to Section 6.01)),
provided that in the event such payment is not made on the day of drawing, such
Bank shall pay in addition to the Issuing Bank interest on the amount of its
unfunded Participation Interest at a rate equal to, if paid within two (2)
Business Days of the date of drawing, the Federal Funds Rate, and thereafter at
the Base Rate.
(e) Renewal, Extension. The renewal or extension of any Letter of
Credit shall, for purposes hereof, be treated in all respects the same as the
issuance of a new Letter of Credit hereunder.
(f) Uniform Customs and Practices. The Issuing Bank may have the
Letters of Credit be subject to The Uniform Customs and Practice for Documentary
Credits, as published as of the date of issue by the International Chamber of
Commerce (the "UCP"), in which case the UCP may be incorporated therein and
deemed in all respects to be a part thereof.
(g) Indemnification; Nature of Issuing Bank's Duties.
(i) In addition to its other obligations under this
Section 2.06, the Borrower hereby agrees to protect, indemnify, pay and
save the Issuing Bank harmless from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable attorneys' fees) that the Issuing Bank may incur
or be subject to as a consequence, direct or indirect, of (A) the
issuance of any Letter of Credit or (B) the failure of the Issuing Bank
to honor a drawing under a Letter of Credit as a result of any act or
omission, whether rightful or wrongful, of any present or future de
jure or de facto government or governmental authority (all such acts or
omissions, herein called "Government Acts").
(ii) As between the Borrower and the Issuing Bank, the
Borrower shall assume all risks of the acts, omissions or misuse of any
Letter of Credit by the beneficiary thereof. The Issuing Bank shall not
be responsible: (A) for the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of any Letter of
Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (B) for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, that may
prove to be invalid or ineffective for any reason; (C) for errors,
omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise, whether or not
they be in cipher; (D) for any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under a
Letter of Credit or of the proceeds thereof; and (E) for any
consequences arising from causes beyond the control of the Issuing
Bank, including, without limitation, any acts by Governmental
Authorities. None of the above shall affect, impair, or prevent the
vesting of the Issuing Bank's rights or powers hereunder.
(iii) In furtherance and extension and not in limitation of
the specific provisions hereinabove set forth, any action taken or
omitted by the Issuing Bank, under or
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in connection with any Letter of Credit or the related certificates, if
taken or omitted in good faith, shall not put such Issuing Bank under
any resulting liability to the Borrower. It is the intention of the
parties that this Credit Agreement shall be construed and applied to
protect and indemnify the Issuing Bank against any and all risks
involved in the issuance of the Letters of Credit, all of which risks
are hereby assumed by the Borrower, including, without limitation, any
and all acts by Governmental Authorities. The Issuing Bank shall not,
in any way, be liable for any failure by the Issuing Bank or anyone
else to pay any drawing under any Letter of Credit as a result of any
acts by Governmental Authorities or any other cause beyond the control
of the Issuing Bank.
(iv) Nothing in this subsection (g) is intended to limit
the reimbursement obligations of the Borrower contained in subsection
(c) above. The obligations of the Borrower under this subsection (g)
shall survive the termination of this Credit Agreement. No act or
omissions of any current or prior beneficiary of a Letter of Credit
shall in any way affect or impair the rights of the Issuing Bank to
enforce any right, power or benefit under this Credit Agreement.
(v) Notwithstanding anything to the contrary contained in
this subsection (g), the Borrower shall have no obligation to indemnify
the Issuing Bank in respect of any liability incurred by the Issuing
Bank (A) arising solely out of the gross negligence or willful
misconduct of the Issuing Bank, as determined by a court of competent
jurisdiction, or (B) caused by the Issuing Bank's failure to pay under
any Letter of Credit after presentation to it of a request strictly
complying with the terms and conditions of such Letter of Credit, as
determined by a court of competent jurisdiction, unless such payment is
prohibited by any law, regulation, court order or decree.
(vi) The rights and benefits of this subsection (g) shall
also extend to Banks which hold participations in Letters of Credit
hereunder.
(h) Responsibility of Issuing Bank. It is expressly understood and
agreed that the obligations of the Issuing Bank hereunder to the Banks are only
those expressly set forth in this Credit Agreement and that the Issuing Bank
shall be entitled to assume that the conditions precedent set forth in Section
3.02 have been satisfied unless it shall have acquired actual knowledge that any
such condition precedent has not been satisfied; provided, however, that nothing
set forth in this Section 2.06 shall be deemed to prejudice the right of any
Bank to recover from the Issuing Bank any amounts made available by such Bank to
the Issuing Bank pursuant to this Section 2.06 in the event that it is
determined by a court of competent jurisdiction that the payment with respect to
a Letter of Credit constituted gross negligence or willful misconduct on the
part of the Issuing Bank.
(i) Conflict with LOC Documents. In the event of any conflict
between this Credit Agreement and any LOC Document (including any letter of
credit application), this Credit Agreement shall control.
Section 2.07 Swingline Loan Advances.
(a) Notices; Disbursement. Whenever the Borrower desires a
Swingline Loan advance hereunder it shall give written notice (or telephonic
notice promptly confirmed in writing) to the Swingline Bank not later than 11:00
A.M. (Charlotte, North Carolina time) on the Business Day of the requested
Swingline Loan advance. Each such notice shall be irrevocable and shall specify
(A) that a Swingline Loan advance is requested, (B) the date of the requested
Swingline Loan advance (which shall be a Business Day) and (C) the principal
amount of and Interest Period
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for the Swingline Loan advance requested. Each Swingline Loan shall have such
maturity date as the Swingline Bank and the Borrower shall agree upon receipt by
the Swingline Bank of any such notice from the Borrower. The Swingline Bank
shall initiate the transfer of funds representing the Swingline Loan advance to
the Borrower by 3:00 P.M. (Charlotte, North Carolina time) on the Business Day
of the requested borrowing.
(b) Repayment of Swingline Loans. The principal amount of all
Swingline Loans shall be due and payable on the earlier of (A) the maturity date
agreed to by the Swingline Bank and the Borrower with respect to such Loan, but
not in any event more than 10 days from the date of the Swingline Loan advance,
or (B) the Termination Date. The Swingline Bank may, at any time, in its sole
discretion, by written notice to the Borrower and the Banks, demand repayment of
its Swingline Loans by way of a Revolving Loan advance, in which case the
Borrower shall be deemed to have requested a Revolving Loan advance comprised
solely of Base Rate Loans (or, with the requisite notice, Eurodollar Loans) in
the amount of such Swingline Loans; provided, however, that any such demand
shall be deemed to have been given one Business Day prior to the Termination
Date and on the date of the occurrence of any Event of Default described in
Section 6.01 and upon acceleration of the indebtedness hereunder and the
exercise of remedies in accordance with the provisions of Section 6.01. Each
Bank hereby irrevocably agrees to make its pro rata share of each such Revolving
Loan in the amount, in the manner and on the date specified in the preceding
sentence notwithstanding (i) the amount of such borrowing may not comply with
the minimum amount for advances otherwise required hereunder, (ii) whether any
conditions specified in Section 3.02 are then satisfied, (iii) whether a Default
or an Event of Default then exists, (iv) failure of any such request or deemed
request for Revolving Loan to be made by the time otherwise required hereunder,
(v) whether the date of such borrowing is a date on which Revolving Loans are
otherwise permitted to be made hereunder or (vi) any termination of the
Commitments relating thereto immediately prior to or contemporaneously with such
borrowing. In the event that a Revolving Loan cannot for any reason be made on
the date otherwise required above (including, without limitation, as a result of
the commencement of a proceeding under the Bankruptcy Code with respect to the
Borrower), then each Bank hereby agrees that it shall forthwith purchase (as of
the date such borrowing would otherwise have occurred, but adjusted for any
payments received from the Borrower on or after such date and prior to such
purchase) from the Swingline Bank such Participation Interests in the
outstanding Swingline Loans as shall be necessary to cause each such Bank to
share in such Swingline Loans ratably based upon its Revolving Commitment
Percentage (determined before giving effect to any termination of the
Commitments pursuant to Section 6.01), provided that (A) all interest payable on
the Swingline Loans shall be for the account of the Swingline Bank until the
date as of which the respective Participation Interest is requested to be
purchased and (B) at the time any purchase of Participation Interests pursuant
to this sentence is actually made, the purchasing Bank shall be required to pay
to the Swingline Bank, to the extent not paid to the Swingline Bank by the
Borrower in accordance with the terms hereof, interest on the principal amount
of Participation Interests purchased for each day from and including the day
upon which such borrowing would otherwise have occurred to but excluding the
date of payment for such Participation Interests, at the rate equal to the
Federal Funds Rate.
Section 2.08 Optional Termination or Reduction of Revolving Commitments.
The Borrower may at any time, upon at least three (3) Business Days'
written notice to the Agent, terminate the Revolving Commitments in whole or
reduce the Revolving Commitments in part up to the amount by which the Revolving
Commitments exceed the aggregate principal amount of the Revolving Loans;
provided, however, any such partial reduction shall be in a minimum amount of
$5,000,000 (or such lesser aggregate amount of the Revolving Commitments as may
then be in effect) or
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any larger multiple of $1,000,000, provided further, any such reduction shall be
made ratably among the Banks.
Section 2.09 Prepayments.
(a) Optional Prepayments.
(i) The Borrower may, upon written notice
delivered to the Agent not later than 2:00 P.M. (Charlotte,
North Carolina time) on the first Business Day prior to the
date of such prepayment, prepay a Group of Base Rate Loans in
whole at any time, or from time to time in part in amounts
aggregating $500,000 or any larger multiple of $100,000 by
paying (in Dollars) the principal amount to be prepaid
together with accrued interest thereon to the date of
prepayment. Each such optional prepayment shall be applied to
prepay ratably the Base Rate Loans of the several Banks
included in such Group.
(ii) The Borrower may, upon at least three (3)
Eurodollar Business Days' notice to the Agent, prepay a Group
of Eurodollar Loans in whole at any time, or from time to time
in part in amounts aggregating $1,000,000 or any larger
multiple of $100,000, by paying the principal amount to be
prepaid together with accrued interest thereon to the date of
prepayment, as designated by Borrower pursuant to Section
2.04(b); provided that the Borrower shall reimburse each Bank
for any loss or expense incurred by it as a result of any such
prepayment in accordance with Section 2.12. Each such optional
prepayment shall be applied to prepay ratably the Loans of the
several Banks included in such Group.
(iii) Upon receipt of a notice of prepayment
pursuant to this Section, the Agent shall promptly notify each
Bank of the contents thereof and of such Bank's ratable share
of such prepayment and such notice shall not thereafter be
revocable by the Borrower.
(b) Mandatory Prepayments. If at any time (i) the
aggregate Obligations shall exceed the Aggregate Revolving Commitments,
(ii) the aggregate LOC Obligations shall exceed the aggregate LOC
Committed Amount, or (iii) the Swingline Loans shall exceed the
Swingline Committed Amount, then the Borrower shall make prompt payment
on the Loans or after payment of the Loans in full, provide cash
collateral in respect of the LOC Obligations, in an amount sufficient
to eliminate the deficiency.
Section 2.10 Method of Electing Interest Rates.
(a) The Loans included in each Borrowing shall bear
interest initially at the type of rate specified by the Borrower in the
applicable Notice of Borrowing. Thereafter, the Borrower may from time
to time elect to change or continue the type of interest rate borne by
each Group of Loans (subject in each case to the provisions of Article
VIII), as follows:
(i) if such Loans are Base Rate Loans, the
Borrower may elect to convert such Loans to Eurodollar Loans
as of any Eurodollar Business Day; and
(ii) if such Loans are Eurodollar Loans, the
Borrower may elect to convert such Loans to Base Rate Loans or
elect to continue such Loans as Eurodollar Loans for an
additional Interest Period, in each case effective on the last
day of the then current Interest Period applicable to such
Loans;
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provided, that the Borrower may not elect to continue any Eurodollar
Loan or convert any Loan into a Eurodollar Loan after the occurrence
and during the continuation of a Default. Each such election shall be
made by delivering a notice in substantially the form of Schedule 2.10
(a "Notice of Interest Rate Election") to the Agent no later than 11:00
A.M. (Charlotte, North Carolina time) (x) if the relevant Loans are to
be converted to Base Rate Loans, the second Business Day before such
conversion or continuation is to be effective and (y) if the relevant
Loans are to be converted to Eurodollar Loans or continued as
Eurodollar Loans for an additional Interest Period, the third
Eurodollar Business Day before such conversion or continuation is to be
effective. A Notice of Interest Rate Election may, if it so specifies,
apply to only a portion of the aggregate principal amount of the
relevant Group of Loans; provided that (i) such portion is allocated
ratably among the Loans comprising such Group and (ii) the portion to
which such Notice applies, and the remaining portion to which it does
not apply, are each at least $500,000 and no more than one of such
portions is other than a multiple of $100,000.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such
notice applies;
(ii) the date on which the conversion or continuation
selected in such notice is to be effective, which shall comply with
subsection (a) above;
(iii) if the Loans comprising such Group are to be
converted, the new type of Loans and, if such new Loans are Eurodollar
Loans, the duration of the initial Interest Period applicable thereto;
and
(iv) if such Loans are to be continued as Eurodollar Loans
for an additional Interest Period, the duration of such additional
Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period. No more than
twenty (20) Groups of Loans shall be outstanding at any one time.
(c) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to Section 2.10(a) above, the Agent shall promptly notify each
Bank of the contents thereof and such notice shall not thereafter be revocable
by the Borrower. If the Borrower fails to deliver a timely Notice of Interest
Rate Election to the Agent for any Group of Eurodollar Loans, such Loans shall
be converted into Base Rate Loans on the last day of the then current Interest
Period applicable thereto.
Section 2.11 General Provisions as to Payments.
(a) The Borrower shall make each payment of principal of, and
interest on, the Loans and of fees hereunder, without setoff, deduction,
counterclaim or withholding of any kind, not later than 3:00 p.m. (Charlotte,
North Carolina time) on the date when due, in federal or other funds immediately
available in Charlotte, North Carolina, to the Agent at its address referred to
in Section 9.01 and any of such payments received after 3:00 p.m. on the
required due date shall be deemed to have been paid by the Borrower on the next
succeeding Business Day. Any such payment with respect to a Loan shall be made
in Dollars. The Agent will promptly distribute to each Bank its ratable share of
each such payment received by the Agent for the account of the
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Banks. Whenever any payment of principal of, or interest on, the Base Rate Loans
or of fees shall be due on a day which is not a Business Day, the date for
payment thereof shall be extended to the next succeeding Business Day. Whenever
any payment of principal of, or interest on, the Eurodollar Loans shall be due
on a day which is not a Eurodollar Business Day, the date for payment thereof
shall be extended to the next succeeding Eurodollar Business Day unless such
Eurodollar Business Day falls in another calendar month, in which case the date
for payment thereof shall be the next preceding Eurodollar Business Day. If the
date for any payment of principal is extended by operation of law or otherwise,
interest thereon shall be payable for such extended time.
(b) Unless the Borrower or any Bank has notified the Agent, prior
to the date any payment to be made by it is due, that it does not intend to
remit such payment, the Agent may, in its discretion, assume that the Borrower
or such Bank, as the case may be, has timely remitted such payment and may, in
its discretion and in reliance thereon, make available such payment to the
Person entitled thereto. If such payment was not in fact remitted to the Agent
in immediately available funds, then:
(i) if the Borrower failed to make such payment, each
Bank shall forthwith on demand repay to the Agent the amount of such
assumed payment made available to such Bank, together with interest
thereon in respect of each day from and including the date such amount
was made available by the Agent to such Bank to the date such amount is
repaid to the Agent at the Federal Funds Rate; and
(ii) if any Bank failed to make such payment, the Agent
shall be entitled to recover such corresponding amount on demand from
such Bank. If such Bank does not pay such corresponding amount
forthwith upon the Agent's demand therefor, the Agent promptly shall
notify the Borrower, and the Borrower shall pay such corresponding
amount to the Agent. The Agent also shall be entitled to recover from
such Bank interest on such corresponding amount in respect of each day
from the date such corresponding amount was made available by the Agent
to the Borrower to the date such corresponding amount is recovered by
the Agent, at a rate per annum equal to the daily Federal Funds Rate.
Nothing herein shall be deemed to relieve any Bank from its obligation
to fulfill its Commitment or to prejudice any rights that the Agent or
Borrower may have against any Bank as a result of any default by such
Bank hereunder.
Section 2.12 Funding Losses.
If the Borrower makes any payments of principal with respect to any
Eurodollar Loan or any Eurodollar Loan is converted to another type of Loan
(pursuant to Articles II, VI, VIII, or otherwise) on any day other than the last
day of an Interest Period applicable thereto, or if the Borrower fails to borrow
or prepay any Eurodollar Loans after notice has been given to any Bank in
accordance with the terms hereof, the Borrower shall reimburse each applicable
Bank on demand for any resulting reasonable out of pocket loss or expense
incurred by it (or any existing Participant in the related Loan, provided that
the amount collected by a Bank and its Participant shall not exceed the amount
which the Bank would have been entitled to collect absent such participation),
including (without limitation) any such loss incurred in obtaining, liquidating
or employing deposits from third parties to fund or maintain such Loan or
proposed Loan, but excluding loss of margin for the period after any such
payment or conversion or failure to borrow or prepay, provided that such Bank
shall have delivered to the Borrower (with a copy to the Agent) a certificate
prior to requesting reimbursement setting forth in reasonable detail its
calculation of the amount of such loss or expense, which certificate shall be
conclusive in the absence of manifest error. NOTWITHSTANDING THE FOREGOING
PROVISIONS OF THIS SECTION 2.12 TO THE CONTRARY, THE TERM "LOSS" SHALL NOT
INCLUDE AND BORROWER SHALL NOT BE
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RESPONSIBLE FOR THE PAYMENT OF ANY LOST PROFITS (IN EXCESS OF THE AMOUNTS
OTHERWISE PAYABLE BY BORROWER HEREUNDER AS A PART OF THE ADJUSTED EURODOLLAR
RATE) OR ANY CONSEQUENTIAL, SPECULATIVE, PUNITIVE OR OTHER DAMAGES.
Section 2.13 Computation of Interest and Fees.
All interest and fees hereunder shall be computed on the basis of a
year of 360 days and paid for the actual number of days elapsed (including the
first day but excluding the last day).
Section 2.14 Withholding Tax Exemption.
At least five (5) Business Days prior to the first date on which
interest or fees are payable hereunder for the account of any Bank, each Bank
that is not incorporated under the laws of the United States of America or a
state thereof agrees that it will deliver to the Borrower and the Agent two duly
and properly completed copies of United States Internal Revenue Service Form
1001 or 4224 (or any successor form, in either case), certifying in either case
that such Bank is entitled to receive payments under this Credit Agreement and
the Notes without deduction or withholding of any United States federal income
taxes. Each Bank which so delivers a Form 1001 or 4224 (or any successor form,
in either case) further undertakes to deliver to the Borrower and the Agent two
(2) additional copies of such form (or a successor form) on or before the date
that such form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Borrower or the Agent, in each case certifying that such Bank
is entitled to receive payments under this Credit Agreement and the Notes
without deduction or withholding of any United States federal income taxes,
unless an event (including without limitation any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Bank from duly completing and delivering any such form with respect
to it and such Bank advises the Borrower and the Agent that it is not capable of
receiving payments without any deductions or withholding of United States
federal income tax, in which case such Bank shall have appropriate amounts
withheld pursuant to applicable law. Notwithstanding any provision contained in
this Credit Agreement to the contrary, if the Borrower, on advice of counsel,
reasonably believes that the Borrower should withhold an amount with respect to
any Bank on account of any applicable Government requirement, the Borrower shall
be entitled to withhold such sum in accordance with the applicable Government
requirement.
Section 2.15 Fees.
(a) Facility Fee. From and after the Closing Date, the
Borrower agrees to pay the Agent for the ratable benefit of the Banks a
commitment fee for each calendar quarter, prorated for partial
quarters, in an amount equal to the Applicable Percentage multiplied by
the average daily aggregate amount of the Revolving Commitments (the
"Facility Fee"). The Facility Fee shall be payable quarterly in arrears
on the last day of each Quarterly Period commencing with the first such
date to occur after the Closing Date. The Agent shall distribute the
Facility Fee to the Banks pro rata in accordance with the respective
Revolving Commitments of the Banks.
(b) Upfront and Other Fees. The Borrower agrees to pay to
the Agent for the benefit of the Banks the upfront and other fees
provided in the Agent's Fee Letter.
(c) Letter of Credit Fees.
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(i) Letter of Credit Fee. In consideration of
the LOC Commitment hereunder, the Borrower agrees to pay to
the Agent for the ratable benefit of the Banks a fee (the
"Letter of Credit Fee") equal to the Applicable Percentage per
annum on the average daily maximum amount available to be
drawn under Letters of Credit from the date of issuance to the
date of expiration. The Letter of Credit Fee shall be payable
quarterly in arrears on the 15th day following the last day of
each calendar quarter for the immediately preceding quarter
(or portion thereof) beginning with the first such date to
occur after the Closing Date.
(ii) Issuing Bank Fees. In addition to the Letter
of Credit Fee, the Borrower agrees to pay to the Issuing Bank
for its own account without sharing by the other Banks (A) a
fronting and negotiation fee of one eighth of one percent
(0.125%) per annum on the average daily maximum amount
available to be drawn under Letters of Credit issued by it
from the date of issuance to the date of expiration, and (B)
customary charges of the Issuing Bank with respect to the
issuance, amendment, transfer, administration, cancellation
and conversion of, and drawings under, such Letters of Credit
(collectively, the "Issuing Bank Fees").
(d) Agent's Fees. The Borrower agrees to pay the Agent
such fees as may be agreed upon by the Agent and the Borrower from time
to time.
ARTICLE III
CONDITIONS
Section 3.01 Conditions to Initial Extensions of Credit.
The obligation of the Banks to make initial Extensions of Credit
hereunder is subject to the satisfaction of such of the following conditions in
all material respects on or prior to the Closing Date as shall not have been
expressly waived in accordance with Section 9.05:
(a) The Agent shall have received multiple counterparts
hereof signed by each of the parties hereto;
(b) The Agent shall have received a duly executed
Revolving Note for the account of each Bank, complying with Section
2.03;
(c) The Agent and each Bank shall have received legal
opinions of counsel to the Borrower, in form and substance satisfactory
to the Agent and the Banks;
(d) The Agent shall have received all documents it may
reasonably request relating to the existence of the Borrower, the
corporate authority for and the validity of each of the Financing
Documents, and any other matters relevant hereto, all in form and
substance satisfactory to the Agent;
(e) The Agent shall have received the applicable Notice
of Borrowing relating to such Extension of Credit;
(f) No Default shall have occurred and be continuing
immediately before the making of such Extension of Credit and no
Default shall exist immediately thereafter;
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(g) The representations and warranties of the Borrower
made in or pursuant to the Financing Documents to which it is a party
shall be true in all material respects as of the date of the making of
such Extensions of Credit;
(h) The Extension of Credit will be extended in
compliance with all applicable governmental laws and regulations
(including without limitation Regulations U, T and X);
(i) The Agent shall have received a certificate of the
Borrower, signed on behalf of Borrower by the Borrower's chief
executive officer or chief financial officer, confirming to the
knowledge of such officer that (i) no Default is continuing, (ii) the
Borrower is Solvent, (iii) the guaranties given by the Borrower's
Subsidiaries to guarantee the $70 million 2000 Private Placement Debt
have been released, (iv) other than the subsidiary guaranties given in
respect of the $90 million 1995 Private Placement Debt, no other
Consolidated Funded Indebtedness shall be benefited by any Guarantee
given by Subsidiaries of the Borrower, and all other conditions
precedent to the initial borrowing hereunder have been satisfied in all
material respects;
(j) The Agent shall have received evidence that the
guaranties given by the Borrower's Subsidiaries to guarantee the
Existing Credit Facility have been released;
(k) The Agent and the Banks shall have been paid all fees
due and payable pursuant to Sections 2.15(b) and (d) hereof;
(l) No litigation shall be pending or to the knowledge of
Borrower threatened against the Borrower, any Subsidiary or any
Specified Affiliate which would be likely to have a Material Adverse
Effect;
(m) The Agent and the Banks shall have received such
financial information regarding the Borrower and its Subsidiaries as
may be requested by, and in each case in form and substance
satisfactory to, the Agent and the Banks; and
(n) There shall not have occurred or become known any
material adverse change with respect to the condition (financial or
otherwise), operations, business or assets of the Borrower and its
Subsidiaries taken as a whole, since December 31, 2000.
The certificates and opinions referred to in this Section
shall be dated not earlier than the date hereof and not later than the
date of such initial Extensions of Credit.
Section 3.02 Conditions to Extension of Credit.
The obligation of any Bank to make any Extension of Credit hereunder
subsequent to the initial Extension of Credit is subject to the satisfaction of
such of the following conditions on or prior to the proposed date of the making
of such Extension of Credit:
(a) The Agent shall receive the applicable Notice of
Borrowing relating to such loan pursuant to Section 2.02(a) hereof;
(b) No Default shall have occurred and be continuing
immediately before the making of such Extension of Credit and no
Default shall exist immediately thereafter;
(c) The representations and warranties of the Borrower
made in or pursuant to the Financing Documents shall be true in all
material respects on and as of the date of such Extension of Credit;
provided that the reaffirmation of the representations and warranties
in
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respect of Schedule 4.07 (Subsidiaries and Affiliates), Schedule 4.12
(Debt), Schedule 4.13 (Contingent Liabilities) and Schedule 4.14
(Investments) shall be as of the most recent fiscal quarter end;
(d) None of the Subsidiaries shall have given a Guarantee
in respect of any other Debt (except to the extent expressly permitted
under Section 5.26) unless such an equal and ratable Guarantee shall
also have been given in respect of the loans and obligations hereunder
in accordance with the provisions of Section 5.26; and
(e) Immediately following the making of such Loan the sum
of the outstanding principal balance of the Obligations shall not
exceed the Commitments.
The making of such Extension of Credit hereunder shall be deemed to be
a representation and warranty by the Borrower on the date thereof as to the
facts specified in clauses (b), (c), (d) and (e)of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
Section 4.01 Corporate Existence and Power.
The Borrower and each of its Material Subsidiaries is a corporation
duly incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted and is duly qualified as a foreign entity and
in good standing under the laws of each jurisdiction where its ownership, lease
or operation of property or the conduct of its business requires such
qualification, other than in such jurisdictions where the failure to be so
qualified and in good standing would not, in the aggregate, have a Material
Adverse Effect.
Section 4.02 Corporate and Governmental Authorization; No
Contravention.
The execution and delivery by the Borrower of the Financing Documents
and the performance by the Borrower of its obligations thereunder are within the
corporate power of the Borrower, have been duly authorized by all necessary
corporate action, require no action by or in respect of, or filing with, any
governmental body, agency or official (except for any such action or filing that
has been taken and is in full force and effect) and do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the Constitutional Documents of the Borrower or of any material agreement,
judgment, injunction, order, decree or other material instrument binding upon
the Borrower or result in the creation or imposition of any Lien on any asset of
the Borrower other than Liens created pursuant to the Financing Documents.
Section 4.03 Binding Effect.
The Financing Documents constitute valid and binding agreements of the
Borrower, enforceable against the Borrower in accordance with their terms.
Section 4.04 Litigation.
Except as set forth on Schedule 4.04 attached hereto, there is no
action, suit or proceeding pending against, or to the knowledge of the Borrower
threatened against or affecting, the Borrower or
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any of its Material Subsidiaries before any court or arbitrator or any
governmental body, agency or official in which there is a reasonable likelihood
of an adverse decision which would materially adversely affect the business or
the consolidated results of operations of the Borrower and its Material
Subsidiaries (taken as a whole), or which in any manner draws into question the
validity of any Financing Document.
Section 4.05 Compliance with ERISA.
Except as set forth on Schedule 4.05 attached hereto, each member of
the ERISA Group has fulfilled its obligations in all material aspects under the
minimum funding standards of ERISA and the Code with respect to each Plan and is
in compliance in all material respects with the presently applicable provisions
of ERISA and the Code with respect to each Plan. Except as previously disclosed
to the Banks in writing prior to the date hereof, no member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the
Code in respect of any Plan, (ii) failed to make any contribution or payment to
any Plan or Multiemployer Plan or in respect of any Benefit Arrangement, or made
any amendment to any Plan or Benefit Arrangement, which in either event has
resulted or could reasonably be expected to result in the imposition of a Lien
or the posting of a bond or other security under ERISA or the Code or (iii)
incurred any liability under Title IV of ERISA other than a liability to the
PBGC for premiums or similar items under Section 4007 of ERISA.
Section 4.06 Environmental Matters.
Except as set forth on Schedule 4.06 hereto:
(a) No written notice, notification, demand, request for
information, citation, summons, complaint or order has been received by
the Borrower and to the knowledge of the Borrower, no penalty has been
assessed and no investigation or review is pending or threatened by any
governmental or other entity, (i) with respect to any alleged violation
of any Environmental Laws in connection with the conduct of the
Borrower and relating to a Hazardous Substance or (ii) with respect to
any alleged failure to have any permit, certificate, license, approval,
registration or authorization required in connection with the conduct
of the Borrower relating to a Hazardous Substance or (iii) with respect
to any generation, treatment, storage, recycling, transportation,
disposal or release (including a release as defined in 42 U.S.C.
Section 9601(22)) ("Release") of any Hazardous Substance used by the
Borrower, which alleged violation, alleged failure to have any required
permit, certificate, license, approval, or registration, or generation,
treatment, storage, recycling, transportation, disposal or release, is
reasonably likely to result in liability to the Borrower in excess of
$1,000,000 in any instance or $5,000,000 in the aggregate.
(b) (i) To the Borrower's knowledge, there has been no
Release of a Hazardous Substance at, on or under any property used by
the Borrower or for which the Borrower or any of its Material
Subsidiaries would be liable, which Release, is reasonably likely to
result in liability to the Borrower in excess of $1,000,000 in any
instance or $5,000,000 in the aggregate; (ii) to the Borrower's
knowledge, neither the Borrower nor any of its Material Subsidiaries
has, other than as a generator or in a manner not regulated or
prohibited under the Environmental Laws, stored or treated any
"hazardous waste" (as defined in 42 U.S.C. Section 6903(5)) on any
property used by the Borrower or for which the Borrower or any of its
Material Subsidiaries would be liable, except for such storage or
treatment which is not reasonably likely to result in liability to the
Borrower or any of its Material Subsidiaries in excess of $1,000,000 in
any instance or $5,000,000 in the aggregate; and (iii) to the
Borrower's knowledge no polychlorinated biphenyl ("PCB") in
concentrations greater than 50 parts per million, friable asbestos, or
underground storage tank (in use or abandoned) is at any property used
by the
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Borrower or for which the Borrower or any of its Material Subsidiaries
would be liable, except for such PCBs, friable asbestos or underground
storage tanks that are not reasonably likely to result in liability to
the Borrower or any of its Material Subsidiaries in excess of
$1,000,000 in any instance or $5,000,000 in the aggregate.
(c) To the knowledge of the Borrower, neither the
Borrower nor any of its Material Subsidiaries has transported or
arranged for the transportation (directly or indirectly) of any
Hazardous Substance to any location which is listed under the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCLA"), on the Comprehensive Environmental
Response, Compensation and Liability Information System, as amended
("CERCLIS"), or on any similar state list or which is the subject of
any federal state or local enforcement action or other investigation
which may lead to claims for clean-up costs, remedial work, damages to
natural resources or for personal injury claims, including, but not
limited to, claims under CERCLA, that are reasonably likely to result
in liability to the Borrower or any of its Material Subsidiaries in
excess of $1,000,000 in any instance or $5,000,000 in the aggregate.
(d) No written notification of a Release of a Hazardous
Substance has been filed by or on behalf of the Borrower or any of its
Material Subsidiaries, which individually or in combination with other
such Releases, is reasonably likely to result in liability for the
Borrower or any of its Material Subsidiaries in excess of $1,000,000 in
any instance or $5,000,000 in the aggregate.
(e) There have been no environmental audits or similar
investigations conducted by or which are in the possession of the
Borrower or any of its Material Subsidiaries in relation to any
property used by the Borrower or for which the Borrower or any of its
Material Subsidiaries would be liable, which identify one or more
environmental liabilities of the Borrower or any of its Material
Subsidiaries which are reasonably likely to exceed $1,000,000 in any
instance or $5,000,000 in the aggregate.
Section 4.07 Material Subsidiaries.
Set forth on Schedule 4.07 hereto is a complete and accurate list of
all of the Material Subsidiaries of the Borrower, showing as to each such
Material Subsidiary the jurisdiction of its organization, the number of shares
of each class of capital stock or other equity interests outstanding and the
percentage of the outstanding shares of each such class owned (directly or
indirectly) by the Borrower or any other Material Subsidiary of the Borrower and
the number of shares covered by all outstanding options, warrants, rights of
conversion or purchase, and similar rights. All of the outstanding capital stock
or other equity interests of all of such Material Subsidiaries identified in
such Schedule 4.07 as being owned by the Borrower or any of its Material
Subsidiaries has been validly issued, is fully paid and nonassessable and is
owned directly or indirectly by the Borrower or any of its Material
Subsidiaries, as the case may be, free and clear of all Liens other than a Lien
described in and permitted by Section 5.07 hereof. The Borrower may provide
periodic updates of the information in Schedule 4.07, which shall be deemed
modified to include the updated information.
Section 4.08 Not an Investment Company.
Neither the Borrower nor any of its Material Subsidiaries is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
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Section 4.09 Margin Stock.
No proceeds of any Loan will be used to purchase or carry any Margin
Stock or to extend credit to others for the purpose of purchasing or carrying
any Margin Stock in violation of Regulations U, T or X.
Section 4.10 Compliance With Laws.
Except as set forth on Schedule 4.10 attached hereto and made a part
hereof or as previously disclosed in writing to the Banks prior to the date
hereof, the Borrower and each of its Material Subsidiaries is in compliance in
all material respects with all applicable laws, rules and regulations
(including, without limitation, environmental laws, rules and regulations), and
is not in violation of, or in default under, any term or provision of any
charter, bylaw, mortgage, indenture, agreement, instrument, statute, rule,
regulation, judgment, decree, order, writ or injunction applicable to it, except
for any such non-compliance, violation, default or failure to comply which would
not be reasonably likely, individually or in the aggregate, to have a material
adverse effect on the business, financial position or results of operations of
the Borrower and its Material Subsidiaries, taken as a whole, or on the ability
of the Borrower and its Material Subsidiaries, taken as a whole, to perform its
obligations under the Financing Documents.
Section 4.11 Absence of Liens.
There are no liens of any nature whatsoever on any properties or assets
of the Borrower or any of its Material Subsidiaries, except as otherwise
permitted under Section 5.07 hereof.
Section 4.12 Debt.
Other than as set forth on Schedule 4.12 hereto, there is no material
Debt of the Borrower and its Material Subsidiaries outstanding as of the date
hereof. The Borrower may provide periodic updates of the information in Schedule
4.12, which shall be deemed modified to include the updated information.
Section 4.13 Contingent Liabilities.
As of the Closing Date, other than as set on Schedule 4.13 there are no
material contingent liabilities (other than contingent liabilities that
constitute Debt and material contingent liabilities arising out of customary
indemnifications given by the Borrower or its Material Subsidiaries to its
officers and directors, its underwriters or its lenders) of the Borrower or its
Material Subsidiaries as of the date hereof. The Borrower may provide periodic
updates of the information in Schedule 4.13, which shall be deemed modified to
include the updated information.
Section 4.14 Investments.
Set forth on Schedule 4.14 is a complete and accurate list, in all
material respects, as of the date hereof of all investments by the Borrower or
any of its Material Subsidiaries in any Person, other than investments by the
Borrower or any of its Material Subsidiaries in a Material Subsidiary or
Specified Affiliate. The Borrower may provide periodic updates of the
information in Schedule 4.14, which shall be deemed modified to include the
updated information.
Section 4.15 Solvency.
The Borrower is Solvent after giving effect to the transactions
contemplated by the Financing Documents.
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Section 4.16 Taxes.
The Borrower and its Material Subsidiaries have filed, or caused to be
filed, all tax returns (federal, state, local and foreign) required to be filed
and paid all amounts of taxes shown thereon to be due (including interest and
penalties) and have paid all other taxes, fees, assessments and other
governmental charges owing by them, except for such taxes (i) which are not yet
delinquent or (ii) as are being contested in good faith and by proper
proceedings, and against which adequate reserves are being maintained in
accordance with GAAP. The Borrower is not aware of any proposed material tax
assessments against it or any of its Material Subsidiaries.
Section 4.17 REIT Status.
The Borrower is taxed as a "real estate investment trust" within the
meaning of Section 856 (a) of the Code.
Section 4.18 Specified Affiliates.
Except as set forth on Schedule 4.07, there are no Specified Affiliates
as of the date hereof.
Section 4.19 Financial Condition.
Each of the financial statements described below (copies of which have
been provided to the Agent and the Banks), have been prepared in accordance with
GAAP throughout the periods covered thereby, present fairly in all material
respects the financial condition and results from operations of the entities and
for the periods specified, subject in the case of interim company-prepared
statements to normal year-end adjustments:
(i) annual audited consolidated balance sheet of the
Borrower and its consolidated subsidiaries dated as of December 31,
2000, together with related statements of income and cash flows
certified by Ernst & Young, certified public accountants; and
(ii) interim company-prepared consolidated balance sheet
of the Borrower and its consolidated subsidiaries dated as of March 31,
2001, together with related company-prepared statements of income and
cash flows.
Section 4.20 No Material Adverse Effect.
Since the date of the annual audited financial statements referenced in
Section 4.19, there has been no circumstance, development or event relating to
or affecting the Borrower and its Material Subsidiaries which has had or is
reasonably likely to have a Material Adverse Effect.
ARTICLE V
COVENANTS
The Borrower hereby covenants and agrees that until the Obligations,
together with interest, fees and other obligations hereunder, have been paid in
full and the Commitments hereunder shall have terminated, the Borrower shall,
and shall cause its Subsidiaries to, perform and comply with the following
covenants:
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Section 5.01 Information.
The Borrower will deliver to Agent and the Banks:
(a) as soon as available and in any event within ninety (90) days
after the end of each fiscal year of the Borrower, a consolidated and
consolidating balance sheet of the Borrower and its Subsidiaries as of the end
of such fiscal year and the related consolidated and consolidating statements of
income and consolidated statement of cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal year,
and, with respect to such financial information for the Borrower, such
consolidated statements shall be audited statements by Ernst & Young or other
independent public accountants of nationally recognized standing and containing
an opinion of such accountants, which opinion shall be without exception,
qualification or limitation on scope of audit;
(b) as soon as available and in any event within forty-five (45)
days after the end of each of the first three (3) fiscal quarters of each fiscal
year of the Borrower, a consolidated and consolidating balance sheet of the
Borrower and its Subsidiaries as of the end of such quarter and the related
consolidated and consolidating statements of income and consolidated statement
of cash flows for such quarter and for the portion of the Borrower's fiscal year
ended at the end of such quarter, setting forth in each case in comparative form
the figures for the corresponding quarter and the corresponding portion of the
previous fiscal year, all certified (subject to normal year-end adjustments) as
to fairness of presentation, GAAP and consistency by the chief financial officer
of the Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in subsections (a) and (b) of this Section, a certificate
of Borrower, signed on behalf of Borrower by the chief financial officer of the
Borrower (i) stating whether, to such officer's knowledge, there exists on the
date of such certificate any Default and, if any Default then exists, setting
forth the details thereof and the action that the Borrower is taking or proposes
to take with respect thereto, (ii) stating whether, since the date of the most
recent financial statements previously delivered pursuant to subsection (a) or
(b) of this Section, there has been a change in the GAAP applied in preparing
the financial statements then being delivered from those applied in preparing
the most recent audited financial statements so delivered which is material to
the financial statements then being delivered, (iii) stating how much of the
outstanding principal balance of the Loans as of the end of the applicable
fiscal quarter has been used for the general corporate purposes of the Borrower
and its Subsidiaries, (iv) furnishing calculations demonstrating the compliance
by the Borrower of the covenants contained in Sections 5.18, 5.19, 5.20, 5.21
and 5.22 hereof, and (v) attaching management's summary of the results contained
in such financial statements;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement (addressed to the Agent
for the benefit of the Banks) of the firm of independent public accountants
which reported on such statements whether anything has come to their attention
to cause them to believe that any Default existed on the date of such
statements;
(e) promptly, and in any event within five (5) Business Days after
any officer obtains knowledge thereof, written notice to the Agent of any change
by a Ratings Service in its rating for the Borrower's senior unsecured
(non-credit enhanced) long term debt;
(f) within five (5) Business Days after any officer obtains
knowledge of any Default, if such Default is then continuing, a certificate of
Borrower, signed on behalf of Borrower by the chief financial officer of the
Borrower, setting forth the details thereof and the action which the Borrower is
taking or proposes to take with respect thereto;
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(g) promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(h) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) which the Borrower shall have filed with the Securities and
Exchange Commission;
(i) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability with respect to any Multiemployer Plan under Title IV of
ERISA or notice that any Multiemployer Plan is in reorganization, is not Solvent
or has been terminated, a copy of such notice; (iii) receives notice from the
PBGC under Title IV of ERISA of its intent to terminate, impose liability (other
than for premiums under Section 4007 of ERISA) in respect of, or appoint a
trustee to administer any Plan, a copy of such notice; (iv) applies for a waiver
of the minimum funding standard under Section 412 of the Code, a copy of such
application; (v) gives notice of intent to terminate any Plan under Section
4041(c) of ERISA, a copy of such notice and other information filed with the
PBGC; (vi) gives notice of withdrawal from any Plan pursuant to Section 4063 of
ERISA, a copy of such notice; or (vii) except as previously disclosed to the
Banks in writing prior to the date hereof, fails to make any payment or
contribution to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement or makes any amendment to any Plan or Benefit Arrangement which has
resulted or could result in the imposition of a lien or the posting of a bond or
other security under ERISA or the Code, a certificate of Borrower, signed on
behalf of Borrower by the chief financial officer, the chief accounting officer
or the treasurer of the Borrower, setting forth details as to such occurrence
and the action, if any, which the Borrower or any applicable member of the ERISA
Group is required or proposes;
(j) as soon as possible after any officer of the Borrower obtains
knowledge of the commencement of, or of a material threat of the commencement
of, an action, suit or proceeding against the Borrower or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency or
official in which there is a reasonable likelihood of an adverse decision which
would after the application of applicable insurance materially and adversely
affect the business, financial position or results of operations of the Borrower
and its Consolidated Subsidiaries, in each case considered as a whole, or which
in any manner questions the validity of any Financing Document, a written report
informing the Banks in reasonable detail of the nature of such pending or
threatened action, suit or proceeding;
(k) to the extent the information provided by the Borrower on
Schedule 4.07 (Subsidiaries and Affiliates), Schedule 4.12 (Debt), Schedule 4.13
(Contingent Liabilities) and Schedule 4.14 (Investments) changes following the
Closing Date, the Borrower will provide the Agent with updated information not
less frequently than quarterly, and such schedules shall be deemed modified to
include the updated information as provided in Section 4; and
(l) from time to time such additional information regarding the
financial position or business of the Borrower and its Subsidiaries, as the
Agent or any Bank may reasonably request.
For purposes of the foregoing:
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(i) during any period when GAAP or related auditing
standards require that a Specified Affiliate of the Borrower be
accounted for as a Subsidiary for purposes of the consolidated
financial statements of the Borrower and its Subsidiaries, the term
"Subsidiary" shall include a Specified Affiliate of the Borrower for
purposes of paragraphs (a) and (b) above; and
(ii) during any period when GAAP or related auditing
standards do not require that a Specified Affiliate of the Borrower be
accounted for as a Subsidiary for purposes of the consolidated
financial statements of the Borrower and its Subsidiaries, the terms
"Subsidiary" shall not include a Specified Affiliate of the Borrower
for purposes of paragraphs (a) and (b) above and, if the Borrower shall
have any Specified Affiliates during any period covered by the
financial statements delivered pursuant to paragraphs (a) or (b) above,
the Borrower shall deliver (A) financial statements of the character
specified in paragraphs (a) and (b) above for such Specified Affiliates
within the time periods set forth in paragraphs (a) and (b) above, and
(B) on a combined basis, financial statements of the character
specified in paragraphs (a) and (b) above for the Borrower, its
Subsidiaries and such Specified Affiliates accompanied by the opinions
and certificates specified in paragraphs (b) and (c) above within the
time periods set forth in paragraphs (a), (b) and (c) above.
Section 5.02 Payment of Obligations.
The Borrower will pay and discharge, and will cause each of its
Subsidiaries to pay and discharge, at or before maturity, or prior to expiration
of applicable notice, grace and curative periods, all their respective material
obligations and liabilities, including, without limitation, tax liabilities,
except where the same may be contested in good faith by appropriate proceedings,
and will maintain, and will cause each of its Subsidiaries to maintain, in
accordance with GAAP, appropriate reserves for the accrual of any of the same.
Section 5.03 Maintenance of Property; Insurance.
(a) The Borrower will keep, and will cause each of its
Subsidiaries to keep, or will in the ordinary course of business cause
the tenants of respective properties to keep, all property materially
useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted.
(b) The Borrower will maintain, and will cause each of
its Subsidiaries to maintain, with financially sound and responsible
insurance companies, insurance on all their respective properties in at
least such amounts and against such risks (and with such risk
retention) as are usually insured against in the same general area by
companies of established repute engaged in the same or a similar
business, and will furnish to the Banks, upon request from the Agent,
information presented in reasonable detail as to the insurance so
carried. The insurance described in this Section 5.03 may be carried by
the tenants under the respective tenant leases of such properties in
lieu of by Borrower or its Subsidiaries so long as the Borrower or its
respective Subsidiary is named as loss payee and additional insured
with respect to such insurance.
Section 5.04 Conduct of Business and Maintenance of Existence.
Except as contemplated otherwise by the Investment Policy, the Borrower
will continue, and will cause each Subsidiary to continue, to engage in business
of the same general type as now conducted by
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the Borrower and each of its Subsidiaries, and will preserve, renew and keep in
full force and effect, and will cause each of its Subsidiaries to preserve,
renew and keep in full force and effect their respective corporate existences
and, except for any such rights, privileges and franchises the failure to
preserve which would not in the aggregate have a material adverse effect on the
Borrower and its Subsidiaries, taken as a whole, or the ability of the Borrower
or any Subsidiary to perform any of their respective obligations under any
Financing Document, their respective rights, privileges and franchises necessary
or desirable in the normal conduct of business; provided that nothing in this
Section 5.04 shall prohibit (a) the merger of a Subsidiary of the Borrower into
the Borrower or the merger or consolidation of any Subsidiary of the Borrower
with or into another Person if the corporation surviving such consolidation or
merger is a Wholly Owned Consolidated Subsidiary of the Borrower and if, in each
case, after giving effect thereto, no Default shall have occurred and be
continuing and a responsible officer of the Borrower shall deliver to the Agent
an officer's certificate representing that after giving effect to the
transaction (i) the Borrower is in compliance with the terms of the Credit
Agreement on a pro forma basis and (ii) no Event of Default shall then exist, or
(b) the termination of the corporate existence of any Subsidiary of the Borrower
or the discontinuation of any line of business of the Borrower or any of its
Subsidiaries if the Borrower in good faith determines that such termination is
in the best interest of the Borrower or such Subsidiary, as the case may be, and
is not materially disadvantageous to the Banks.
Section 5.05 Compliance with Laws.
The Borrower will comply, and cause each of its Subsidiaries to comply,
in all material respects with all applicable laws, ordinances, rules,
regulations, and requirements of governmental authorities (including, without
limitation, Environmental Laws and ERISA and the rules and regulations
thereunder) the failure to comply with which would have a material adverse
effect on the Borrower and its Subsidiaries, taken as a whole, or their ability
to perform any of their obligations under any Financing Document, except where
the necessity of compliance therewith is contested in good faith by appropriate
proceedings.
Section 5.06 Inspection of Property, Books and Records.
The Borrower will keep, and will cause each of its Subsidiaries to
keep, proper books of record and account in which full, true and correct entries
shall be made of all material dealings and transactions in relation to its
business and activities; and, except to the extent prohibited by applicable law,
rule, regulations or orders, will permit, and will cause each of its
Subsidiaries to permit, representatives of any Bank at such Bank's expense
(which expense shall not be subject to reimbursement by Borrower hereunder) to
visit and inspect any of their respective properties (subject to the rights of
tenants in possession thereof and to any limitations on the inspection rights of
Borrower in connection therewith), to examine and make abstracts from any of
their respective books and records and to discuss their respective affairs,
finances and accounts with their respective officers, employees and independent
public accountants, upon reasonable prior written notice to Borrower, all at
such reasonable times and as often as may reasonably be desired.
Section 5.07 Negative Pledge.
The Borrower will not, nor will it permit any of its Subsidiaries to
create, assume or suffer to exist any Lien on any asset now owned or hereafter
acquired by it, except:
(a) mortgage Liens to the extent not prohibited, both
before and after giving effect thereto, by the provisions of Sections
5.21 (Consolidated Senior Secured Debt to Consolidated Total Capital
Ratio), Section 5.22 (Consolidated Unencumbered Realty to Consolidated
Unsecured Debt Ratio) and Section 5.23 (Consolidated Unencumbered
Interest Coverage Ratio);
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(b) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's, statutory banker's or other like Liens
arising in the ordinary course of business and which are not overdue
for a period of more than thirty (30) days or which are being contested
in good faith by appropriate proceedings;
(c) Liens for taxes, assessments or other governmental
charges not yet due or which are being contested in good faith and by
appropriate proceedings and for which adequate reserves are taken in
accordance with GAAP;
(d) Liens imposed by law on pledges or deposits in
connection with workmen's compensation, unemployment insurance and
other social security legislation which do not interfere with or
adversely affect in any material respect the ordinary conduct of the
business of the Borrower or any of its Subsidiaries;
(e) deposits to secure the performance of bids, tenders,
trade or government contracts (other than for borrowed money), leases,
licenses, statutory obligations, surety bonds (other than in relation
to judgments), performance bonds, reserves for capital improvements and
other obligations of a like nature incurred in the ordinary course of
business;
(f) easements, rights-of-way, zoning and similar
restrictions and other encumbrances or title defects incurred, or
leases or subleases granted to others which are in existence as of the
date hereof, or if not in existence as of the date hereof, do not
interfere with or adversely affect in any material respect the ordinary
conduct of the business, or detract from the value of the property, of
the Borrower or any of its Subsidiaries;
(g) Liens securing reimbursement obligations with respect
to trade letters of credit issued in the ordinary course of business;
provided that such Liens only attach to the assets being acquired with
the proceeds of such letters of credit;
(h) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien, to the extent
such Lien is permitted by any of the foregoing clauses of this Section;
provided that such Debt is not increased and is not secured by any
additional assets;
(i) Liens on properties securing security deposits of
tenants, provided that the aggregate amount of such security deposits
secured by such Liens shall not exceed 5% of Consolidated Total Capital
at any time outstanding; and
(j) Liens securing Debt of any Subsidiary or Specified
Affiliate owing to the Borrower.
Section 5.08 Consolidations, Mergers and Sales and Transfer of Assets.
(a) The Borrower will not, nor will it permit any of its
Subsidiaries to, consolidate or merge with or into any other Person
except as permitted in accordance with Section 5.04.
(b) The Borrower will not, nor will it permit any of its
Subsidiaries to, make any transfer or investment of assets or any Asset
Sale without the prior written consent of the Majority Banks, except
where, immediately after giving effect thereto, on a pro forma basis,
(i)(A) Consolidated Unencumbered Realty (prior to giving effect to
depreciation and amortization) held by the Borrower shall be not less
than $250,000,000 and (B) Consolidated Unencumbered Realty (prior to
giving effect to depreciation and amortization) held by the Borrower
and its Consolidated Subsidiaries (including, for purposes hereof, in
the case of non-
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Subsidiary joint ventures, the lesser of (i) the outstanding principal
amount of first mortgage lien indebtedness owed to the Borrower and its
Consolidated Subsidiaries by such non-Subsidiary joint venture, or (ii)
the fair market value of the property that is the subject of such first
mortgage lien) shall be not less than $800,000,000, and (iii) no
Default or Event of Default shall exist. For any such transfer,
investment, sale or disposition involving consideration in excess of
$50,000,000, in each such instance, the Borrower shall deliver to the
Agent an officer's certificate (A) representing that after giving
effect to the transaction (i) the Borrower is in compliance with the
terms of the Credit Agreement on a pro forma basis and (ii) no Default
or Event of Default exists, and (B) describing the transaction in
detail reasonably satisfactory to the Agent.
Section 5.09 Creation of Subsidiaries.
The Borrower will not, nor will it permit any of its Subsidiaries to,
create any Subsidiary except for the creation of a wholly owned Subsidiary of
the Borrower or a Specified Affiliate provided that (i) such Subsidiary or
Specified Affiliate is organized under the laws of a jurisdiction within the
United States of America and (ii) no Default exists immediately prior to or
after the creation of such Subsidiary or Specified Affiliate.
Section 5.10 Incurrence and Existence of Debt.
The Borrower will not, and will not permit any of its Subsidiaries to,
incur, assume or permit to exist any Debt, except:
(a) the loans and obligations owing under this Credit
Agreement and the guaranty of the loans and obligations owing under
this Credit Agreement;
(b) (i) indebtedness of the Borrower owing under the $90
million 1995 private placement note issue (but the maturity date
thereof may not be extended beyond the original maturity date, nor may
the payment terms be otherwise amended or modified) and guaranty
obligations of the Subsidiaries of the Borrower in respect thereof
(but, in the case of the guaranty obligations, only to the original
maturity for the private placement and not to any extended maturity
date), and (ii) indebtedness of the Borrower owing under the $70
million 2000 private placement note issue;
(c) additional publicly issued or privately placed Debt
of the Borrower, provided that the final maturity thereof shall not be
prior to the Termination Date hereunder;
(d) Debt of the Borrower and its Subsidiaries secured by
mortgage liens, provided that such Debt shall be non-recourse to the
Borrower and its Subsidiaries except to the extent of the property
pledged to secure such Debt; and
(e) unsecured inter-company Debt of the Borrower and its
Subsidiaries between and among themselves, provided that the aggregate
amount of such inter-company Debt owing by Subsidiaries to the Borrower
shall not exceed the amount of loans and investments by the Borrower
permitted under Section 5.14;
provided, that in the case of indebtedness incurred under clauses (c) through
(e), immediately after giving effect to the incurrence or assumption thereof,
the Borrower and its Subsidiaries shall be in compliance with the terms of this
Credit Agreement, including the financial covenants hereunder.
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Section 5.11 Transactions with Affiliates.
The Borrower will not and will not permit any Subsidiary to enter into
directly or indirectly any material transaction or material group of related
transactions (including without limitation the purchase, lease, sale or exchange
of properties of any kind or the rendering of any service) with any Affiliate
(other than the Borrower), except in the ordinary course and pursuant to the
reasonable requirements of the Borrower's or such Subsidiary's business and upon
fair and reasonable terms no less favorable to the Borrower or such Subsidiary
than would be obtainable in a comparable arm's-length transaction with a Person
not an Affiliate.
Section 5.12 Use of Proceeds.
The Extensions of Credit hereunder will be used (i) to refinance
existing indebtedness for borrowed money, (ii) to finance the acquisition of
healthcare real estate properties by the Borrower and its Subsidiaries, and
(iii) to finance the general corporate purposes of the Borrower and its
Subsidiaries.
Section 5.13 Constitutional Documents.
Subject to changes, including any dissolutions permitted pursuant to
this Credit Agreement: (i) the Borrower will not, nor will it permit any of its
Subsidiaries to, amend its Constitutional Documents in any manner which could
materially adversely affect the rights of the Banks under the Financing
Documents or their ability to enforce the same; and (ii) the Borrower will not
amend its Constitutional Documents in a manner which would permit a single
shareholder (as determined for purposes hereof pursuant to the attribution
provisions of Section 544 of the Code as modified by Section 856 of the Code) to
own more than thirty percent (30%) of the outstanding stock in Borrower.
Section 5.14 Investments.
The Borrower shall not make or permit to exist, nor shall it permit any
of its Subsidiaries to make or permit to exist, any Investment except: (i)
marketable direct obligations issued or unconditionally guaranteed by the
Government or issued by any agency thereof and backed by the full faith and
credit of the United States of America, in each case maturing within one (1)
year from the date of acquisition thereof, (ii) marketable direct obligations
issued by any state of the United States of America or any political subdivision
of any such state or any public instrumentality thereof maturing within one (1)
year from the date of acquisition thereof and, at the time of acquisition,
having the highest rating obtainable from either S&P or Xxxxx'x, (iii)
commercial paper maturing no more than one (1) year from the date of creation
thereof and, at the time of acquisition, having a rating in one of the two
highest rating categories of S&P or Xxxxx'x, (iv) certificates of deposit,
bankers acceptances or time deposits maturing within one (1) year from the date
of acquisition thereof issued by any of the Banks, (v) certificates of deposit
or bankers acceptances maturing within one (1) year from the date of acquisition
thereof or time deposits maturing within thirty (30) days from the date of
acquisition thereof issued by other commercial banks organized under the laws of
the United States of America or any state thereof or the District of Columbia,
each having shareholders' equity of not less than $600,000,000, (vi) repurchase
agreements with commercial banks or with securities dealers, in any case fully
secured as to principal and interests by obligations described in clauses
(i)-(v) of this Section, (vii) Investments by the Borrower and its Subsidiaries
existing as of the Closing Date, (viii) Investments by the Borrower and
Subsidiary Guarantors in and to the Borrower and Subsidiary Guarantors, (ix)
Investments by Subsidiaries of the Borrower that are not Guarantors in and to
the Borrower and Subsidiary Guarantors, (x) Investments by the Borrower and
Subsidiary Guarantors in and to Subsidiaries of the Borrower that are not
Guarantors hereunder to the extent permitted under Section 5.08(b), and (xi)
Investments in and to joint ventures or other non-Subsidiary enterprises in the
same or closely related lines of business in an aggregate amount up to ten
percent (10%) of the book value of consolidated assets of the Borrower and its
Subsidiaries.
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Section 5.15 Capital Expenditures.
The Borrower shall not, nor shall it permit any of its Subsidiaries to,
make any capital expenditures in an aggregate amount in excess of FIVE MILLION
DOLLARS ($5,000,000) per fiscal year; provided, however (i) capital expenditures
incurred to acquire, expand or improve facilities intended to be revenue
producing shall not be deemed to be capital expenditures for purposes of the
foregoing requirement, and (ii) capital expenditures required pursuant to any
lease or other contract shall not be deemed to be capital expenditures for
purposes of the foregoing requirement.
Section 5.16 Repurchase, Retirement or Redemption of Capital
Stock; Dividends.
(a) The Borrower will not, nor will it permit any of its
Subsidiaries (other than its wholly owned Subsidiaries or the Specified
Affiliates) to, repurchase, retire or redeem any of its capital stock;
provided that the Borrower may redeem (i) its 6.55% Convertible
Subordinated Debentures due 2002 and its 10.5% Convertible Subordinated
Debentures due 2002 and (ii) its preferred stock with proceeds from the
sale of its common stock.
(b) The Borrower will not pay dividends on any of its
stock in any fiscal year in excess of ninety-five percent (95%) of
Funds From Operations for such fiscal year; provided that (i) any
wholly owned Subsidiary of the Borrower may pay dividends or make
distributions to its parent company and (ii) the Borrower may pay such
dividends as are necessary to maintain its status as a REIT.
(c) The Borrower will cause its Subsidiaries to dividend
or otherwise transfer (not less frequently than quarterly) to it all
excess cash on hand (except as provided in the cash management
arrangements with the Borrower's special purpose entities) to be held
in a common cash concentration and management account(s).
Section 5.17 Ratio of Consolidated Funded Indebtedness to
Consolidated Total Capital.
The Borrower will not permit its ratio of Consolidated Funded
Indebtedness to Consolidated Total Capital to exceed 0.40 to 1.0 as of the last
day of each fiscal quarter.
Section 5.18 Consolidated Tangible Net Worth.
The Borrower shall maintain Consolidated Tangible Net Worth at all
times of at least $800,000,000; provided, however, such amount shall be
increased by an amount equal to (a) ninety-five percent (95%) of the net
proceeds received by the Borrower on account of any additional equity offerings
made subsequent to the Closing Date; and (b) without duplication for any amounts
counted under the foregoing clause (a), ninety-five percent (95%) of the net
proceeds received by the Borrower on account of any Securities Transaction
completed subsequent to the Closing Date.
Section 5.19 Consolidated Coverage Ratio.
The Borrower will maintain a Consolidated Coverage Ratio as of the last
day of each fiscal quarter (computed for the four (4) consecutive quarterly
periods then ending) of no less than 2.5 to 1.0.
Section 5.20 Consolidated Senior Secured Debt to Consolidated
Total Capital Ratio.
The ratio of Consolidated Senior Secured Debt to Consolidated Total
Capital shall not at any time exceed 0.20 to 1.0.
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Section 5.21 Consolidated Unencumbered Realty to Consolidated
Unsecured Debt Ratio.
The ratio of Consolidated Unencumbered Realty to Consolidated Unsecured
Debt shall not at any time be less than 2.1 to 1.0.
Section 5.22 Consolidated Unencumbered Coverage Ratio.
The Borrower shall maintain a Consolidated Unencumbered Coverage Ratio
as of the last day of each fiscal quarter (computed for the four (4) consecutive
quarterly periods then ending) of no less than 2.5 to 1.0.
Section 5.23 Specified Affiliates.
The Borrower will give the Agent prompt notice of any Subsidiary that
to the Borrower's knowledge becomes a Specified Affiliate subsequent to the
Closing Date.
Section 5.24 REIT Status.
The Borrower will meet the requirements of Section 857(a) of the Code
and regulations thereunder.
Section 5.25 Leases.
The Borrower will not modify or amend any lease where the Borrower is
the lessor thereunder if such modification or amendment would have a material
adverse effect on the Borrower.
Section 5.26 Favorable Treatment.
The Borrower will not permit its Subsidiaries to give a Guarantee or
pledge of collateral (other than in connection with non-recourse financing as
permitted under Section 5.10(d) hereof) in respect of any other Debt (other than
the guaranty in respect of the $90 million 1995 private placement note issue and
then only to the extent that the maturity date of the guaranteed indebtedness is
not extended beyond the original maturity date and the payment terms thereof are
not otherwise amended or modified) unless such Subsidiary shall also give an
equal and ratable Guarantee and pledge of collateral of the loans and
obligations hereunder (in substantially the form attached as Schedule 5.26 or
such other form as may be reasonably acceptable to the Agent and the Majority
Banks) and become a Subsidiary Guarantor hereunder, without prejudice to any
Event of Default that may arise under Section 5.06.
Section 5.27 Construction and Development.
The Borrower and its Subsidiaries will not engage in construction and
development projects in which the total project costs of all such concurrent
construction and development projects exceed, in the aggregate at any one time,
ten percent (10%) of the book value of consolidated assets of the Borrower and
its Subsidiaries (it being understood and agreed for purposes of this Section
that a project shall be considered under construction and/or development until a
certificate of occupancy therefor, or other similar certificate, shall have been
issued by appropriate governmental authorities).
Section 5.28 Limitation on Certain Agreements.
The Borrower will not, nor will it permit its Subsidiaries to, enter
into, assume or otherwise become subject to any agreement (i) restricting their
ability to xxxxx x xxxx on their property (except with
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respect to those properties which are the subject of non-recourse financing
permitted under Section 5.10(d) hereof), or (ii) restricting the ability of the
Subsidiaries to give a guaranty of the loans and obligations hereunder.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01 Events of Default.
The occurrence of any of the following events shall constitute an event
of default hereunder (individually, an "Event of Default" and collectively the
"Events of Default"):
(a) The Borrower shall fail to pay (i) when due any
principal of any Loan or any reimbursement obligation owing on account
of a drawing under a Letter of Credit or (ii) within five (5) days
after the same shall become due, any interest on any Obligation or any
fees or any other amount payable hereunder;
(b) Default in the due performance or observance of any
term, covenant or agreement contained in Section 5.07 through 5.28,
inclusive;
(c) The Borrower shall fail to observe or perform any
covenant or agreement contained in any Financing Document (other than
those covered by clause (a) or (b) above) for thirty (30) days after
the earlier of a responsible officer of the Borrower becoming aware of
such failure or written notice of such failure shall have been given to
the Borrower by the Agent or any Bank;
(d) Any representation, warranty, certification or
statement made or deemed made by the Borrower in any Financing Document
or in any certificate, financial statement or other document delivered
pursuant thereto shall prove to have been incorrect in any material
respect when made (or deemed made) and such representation, warranty,
certification or statement shall remain incorrect for thirty (30) days
after the earlier of a responsible officer of the Borrower becoming
aware of such failure or written notice of such failure shall have been
given to the Borrower by the Agent or any Bank;
(e) The Borrower or any of its Material Subsidiaries
shall fail to make any payment in respect of any Debt in an aggregate
amount in excess of $5,000,000 when due or within any applicable grace
period;
(f) Any event or condition shall occur which would cause
or permit the acceleration of the maturity of any Debt of Borrower or
any Material Subsidiary in an aggregate amount in excess of $5,000,000
or enables the holder of such Debt or any Person acting on such
holder's behalf to accelerate the maturity thereof;
(g) The Borrower or any Material Subsidiary of the
Borrower shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or
its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief
or to the appointment of or taking possession by any such official in
an involuntary case or other proceeding commenced against it, or shall
make a general assignment for the benefit of creditors,
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or shall fail generally to pay its debts as they become due, or shall
take any corporate action to authorize any of the foregoing;
(h) An involuntary case or other proceeding shall be
commenced against the Borrower or any Material Subsidiary of the
Borrower seeking liquidation, reorganization or other relief with
respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of
it or any substantial part of its property, and such involuntary case
or other proceeding shall remain undismissed and unstayed for a period
of thirty (30) days; or an order for relief shall be entered against
the Borrower or any Material Subsidiary of the Borrower under the
federal bankruptcy laws as now or hereafter in effect;
(i) The Borrower or any Material Subsidiary of the
Borrower shall admit in writing its inability to pay its debts as and
when they fall due;
(j) Except as previously disclosed to the Banks in
writing prior to the date hereof: any member of the ERISA Group shall
fail to pay when due an amount or amounts aggregating in excess of
$5,000,000 which it shall have become liable to pay under Title IV of
ERISA; or notice of intent to terminate any Plan which is then a
Material Plan shall be filed under Title IV of ERISA by any member of
the ERISA Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of
ERISA to terminate, to impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or to cause a trustee to be
appointed to administer any Plan which is then a Material Plan; or a
condition shall exist by reason of which the PBGC would be entitled to
obtain a decree adjudicating that any Plan which is then a Material
Plan must be terminated; or there shall occur a complete or partial
withdrawal from, or a default, within the meaning of Section 4219(c)(5)
of ERISA, with respect to, one or more Multiemployer Plans which could
cause one or more members of the ERISA Group to incur a current payment
obligation, that is, an obligation or series of obligations payable
within twelve (12) months, in excess of $5,000,000;
(k) An uninsured, final, unappealable judgment or order
for the payment of money in excess of $5,000,000 shall be rendered
against the Borrower or any of its Material Subsidiaries and such
judgment or order shall continue unsatisfied and unstayed for a period
of thirty (30) days;
(l) (i) The voting interests in any Specified Affiliate
shall be held by a Person other than a director, officer or employee of
the Borrower, (ii) the Borrower shall fail to own substantially all of
the economic interest in any Specified Affiliate and the remainder of
such economic interest shall be held by a Person other than directors,
officers and/or employees or (iii) a Specified Affiliate shall engage
in any of the actions or activities that are limited or restricted by
Article 5 hereof;
(m) Except as to (i) the guaranties in respect of loans
and obligations under the Existing Credit Facility to be released
pursuant to Section 3.01(j) and (ii) any guaranty which is dissolved,
released or merged or consolidated out of existence as the result of or
in connection with a dissolution, merger or consolidation permitted by
Section 5.04, any guaranty of the loans and obligations hereunder or
any material provision thereof shall cease to be in full force and
effect, or any Guarantor or any Person acting by or on behalf of such
Guarantor shall deny or disaffirm such Guarantor's obligations under
such guaranty, or any Guarantor shall default in the due performance or
observance of any term, covenant or agreement on its part to be
performed or observed pursuant to any guaranty; or
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(n) the occurrence of a Change of Control;
then, and in every such event, the Agent shall during the continuance
of such Event of Default (i) if requested by the Majority Banks, by
notice to the Borrower terminate the Commitments, (ii) if requested by
the Majority Banks, by notice to the Borrower declare the Notes
(together with accrued interest thereon) and all other amounts payable
by the Borrower hereunder to be, and such Notes and amounts shall
thereupon become, immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby
waived by the Borrower, (iii) provide cash collateral in respect of the
LOC Obligations, and (iv) take such other actions as are directed by
the Majority Banks; provided that in the case of any Event of
Acceleration, without any notice to the Borrower or any other act by
the Agent or any Bank, the Commitments shall automatically terminate
and the Notes (together with accrued interest thereon) shall
automatically become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby
waived by the Borrower; and provided further that the Agent may
terminate commitments, declare the Loans and Obligations hereunder
immediately due and payable and demand cash collateral for the LOC
Obligations without prior notice to or the consent of the Banks where
it determines such action is warranted and appropriate based on the
facts and circumstances. Subject to the request or direction of the
Majority Banks as provided above, Agent shall have the exclusive right
to enforce the remedies available under this Credit Agreement during
the continuance of any Event of Default hereunder.
ARTICLE VII
THE AGENT
Section 7.01 Appointment and Authorization.
Each Bank appoints the Agent to act as its agent in connection herewith
and each of the other Financing Documents.
Section 7.02 Agents and Affiliates.
Bank of America shall have the same rights and powers under this Credit
Agreement as any other Bank and may exercise or refrain from exercising the same
as though it were not the Agent, and Bank of America and each of its affiliates
may accept deposits from, lend money to, and generally engage in any kind of
business with the Borrower, any of its Subsidiaries and any of its or their
respective Affiliates as if it were not the Agent.
Section 7.03 Action by Agent.
The obligations of the Agent under the Financing Documents are only
those expressly set forth herein with respect to it. Without limiting the
generality of the foregoing the Agent shall not be required to take any action
with respect to any Default or Event of Default, except as expressly provided in
Article VI.
Section 7.04 Consultation with Experts.
The Agent may consult with legal counsel (who may be counsel for the
Borrower), independent public accountants and other experts selected by the
Agent and shall not be liable for any action taken or omitted to be taken by the
Agent in good faith in accordance with the advice of such counsel, accountants
or experts.
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Section 7.05 Liability of Agent.
Neither the Agent nor any of its directors, officers, agents or
employees shall be liable for any action taken or not taken by it in connection
with the Financing Documents (a) with the consent or at the request of the
Majority Banks; or (b) in the absence of gross negligence or willful misconduct
of the Agent. In requests for consents and direction from the Banks, the Agent
may provide reasonable periods in which to respond. Neither the Agent nor any of
its directors, officers, agents or employees shall be responsible for or have
any duty to ascertain, inquire into or verify (i) any statement, warranty or
representation made in connection with any Financing Document; (ii) the
performance or observance of any of the covenants or agreements of the Borrower,
(iii) the satisfaction of any condition specified in Article III, except receipt
of items required to be delivered to the Agent; or (iv) the validity,
effectiveness or genuineness of any Financing Document or any other instrument
or writing furnished in connection therewith. The Agent shall not incur any
liability by acting in reliance upon any notice, consent, certificate, statement
or other writing (which may be a bank wire, facsimile, telex or similar writing)
believed by it to be genuine or to be signed by the proper party or parties.
Section 7.06 Indemnification.
Each Bank shall, ratably in accordance with its Revolving Commitment,
indemnify the Agent and BAS (to the extent not reimbursed by the Borrower)
against any cost, expense (including reasonable counsel fees and disbursements),
claim, demand, action, loss or liability (except such as result from the Agent's
or BAS's gross negligence or willful misconduct) that the Agent may suffer or
incur in connection with the Financing Documents or any action taken or omitted
by the Agent thereunder.
Section 7.07 Credit Decision.
Each Bank acknowledges that it has, independently and without reliance
upon the Agent or any other Bank, and based on such documents and information as
it has deemed appropriate, made its own credit analysis and decision to enter
into this Credit Agreement. Each Bank also acknowledges 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 credit decisions in taking or not taking any action
under the Financing Documents.
Section 7.08 Successor Agent.
The Agent may resign at any time by giving thirty (30) days prior
written notice thereof to the Banks and the Borrower. The Majority Banks may
remove the Agent for cause at any time by giving thirty (30) days prior written
notice to the Agent, the other Banks and the Borrower. Upon any such resignation
or removal of the Agent, the Majority Banks shall have the right to appoint a
successor Agent, with the consent of the Borrower (which consent shall not
unreasonably be withheld, but which may in any event be withheld if (a) the
Borrower in good faith concludes that the appointment of such proposed successor
Agent could result in a violation of any law, rule, guideline or regulation, or
a violation of, revocation of, failure to renew or modification of any order,
facility security clearance or permit or (b) the credit standing of the proposed
successor Agent is lower than that of the preceding Agent); provided, however,
such consent of the Borrower shall not be required upon the occurrence and
during the continuance of an Event of Default. If no successor Agent shall have
been so appointed by the Majority Banks, and shall have accepted such
appointment, within thirty (30) days after the retiring Agent gives notice of
resignation, then the retiring Agent may, on behalf of the Banks and with the
consent of the Borrower (which consent shall not be unreasonably withheld except
as aforesaid), appoint a successor Agent, which shall have core capital of at
least $500,000,000. Upon the acceptance of its appointment as Agent hereunder by
a successor Agent the retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the
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provisions of this Article shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent. In the event of any successor
agent to Bank of America, (i) all references herein to Bank of America shall be
deemed to refer to such successor agent and (ii) all references to Charlotte,
North Carolina shall be deemed to mean the city in which the successor Agent's
headquarters is located.
Section 7.09 Agent's Fee.
The Borrower shall pay to the Agent for its own account fees in the
amounts and at the time previously agreed upon in writing between the Borrower
and the Agent.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
Section 8.01 Basis for Determining Interest Rate Inadequate
or Unfair.
If on or prior to the first day of any Interest Period for any
Eurodollar Loan:
(a) the Agent is advised by the Eurodollar Reference Bank
that deposits in Dollars (in the applicable amounts) are not being
offered to the Eurodollar Reference Bank in the relevant market for
such Interest Period, or
(b) the Majority Banks advise the Agent that the Adjusted
Eurodollar Rate as determined by the Agent will not adequately and
fairly reflect the cost to such Banks of funding their Eurodollar Loans
for such Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and the Banks,
whereupon until the Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, (i) the obligations of the Banks to
make new Eurodollar Loans or to convert outstanding Loans into Eurodollar Loans
shall be suspended and (ii) each outstanding Eurodollar Loan, as the case may
be, shall be converted into a Base Rate Loan on the last day of the then current
Interest Period applicable thereto. Unless the Borrower notifies the Agent at
least one (1) Business Day before the date of any Eurodollar Borrowing for which
a Notice of Borrowing has previously been given that it elects not to borrow on
such date, such Borrowing shall instead be made as a Base Rate Borrowing.
Section 8.02 Illegality.
If, on or after the date of this Credit Agreement, the adoption of any
applicable law, rule or regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof or compliance by any Bank (or its Eurodollar Lending Office) with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall make it unlawful or
impossible for any Bank (or its Eurodollar Lending Office) to make, maintain or
fund its Eurodollar Loans and such Bank shall so notify the Agent, the Agent
shall forthwith give notice thereof to the other Banks and the Borrower,
whereupon until such Bank notifies the Borrower and the Agent that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Bank to make new Eurodollar Loans, or to convert outstanding Loans into
Eurodollar Loans, shall be suspended. Before giving any notice to the Agent
pursuant to this Section, such Bank shall designate a different Eurodollar
Lending Office if such designation will avoid the need for giving such notice
and will not, in the judgment of such Bank, be otherwise disadvantageous to such
Bank. If such notice is given, each Eurodollar Loan of such Bank then
outstanding shall be converted to a Base Rate Loan either (a) on the last day of
the then current Interest Period applicable to such Eurodollar Loan
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if such Bank may lawfully continue to maintain and fund such Loan to such day or
(b) immediately if such Bank shall determine that it may not lawfully continue
to maintain and fund such Loan to such day.
Section 8.03 Increased Cost and Reduced Return.
(a) If on or after the date hereof, the adoption of any
applicable law, rule or regulation, or any change therein, or any
change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by any Bank
(or its Eurodollar Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central
bank or comparable agency:
(i) shall subject any Bank (or its Applicable
Lending Office) to any tax, duty or other charge with respect
to its Eurodollar Loans, or its obligation to make Eurodollar
Loans, or shall change the basis of taxation of payments to
any Bank (or its Eurodollar Lending Office) of the principal
of or interest on its Eurodollar Loans or any other amounts
due under this Credit Agreement in respect of its Eurodollar
Loans or its obligation to make Eurodollar Loans (except for
(i) Non-Excluded Taxes covered by Section 8.04 (including
Non-Excluded Taxes imposed solely by reason of any failure of
such Bank to comply with its obligations under Section 2.14
and (ii) changes in the rate of tax imposed on, or
contemplated with respect to, the income of such Bank or its
Eurodollar Lending Office or changes generally affecting the
manner in which the income of such Bank or its Applicable
Lending Office is subjected to taxation, by the jurisdiction
in which such Bank's principal executive office or Eurodollar
Lending Office is located or the jurisdiction under the laws
of which such Bank is organized); or
(ii) shall impose, modify or deem applicable any
reserve, special deposit or similar requirement (including,
without limitation, any such requirement imposed by the Board
of Governors of the Federal Reserve System, but excluding with
respect to any Eurodollar Loan any such requirement included
in an applicable Eurodollar Reserve Percentage) against assets
of, deposits with or for the account of, or credit extended
by, any Bank (or its Applicable Lending Office) or shall
impose on any Bank (or its Applicable Lending Office) or on
the United States market for certificates of deposit or the
London interbank market any other condition affecting its
Eurodollar Loans, its Note or its obligation to make
Eurodollar Loans;
and the result of any of the foregoing is to increase the cost to such
Bank (or its Eurodollar Lending Office) of making or maintaining any
Eurodollar Loan, or to reduce the amount of any sum received or
receivable by such Bank (or its Eurodollar Lending Office) under this
Credit Agreement or under its Note with respect thereto, by an amount
deemed by such Bank to be material (except to the extent that such
increased cost or reduction of a sum received or receivable is
attributable to such Bank's failure to perform any of its obligations
under Section 2.14 or is otherwise attributable to any act or action of
such Bank other than the loaning of funds under this Credit Agreement),
then, within fifteen (15) days after demand by such Bank (with a copy
to the Agent) accompanied by a certificate setting forth in reasonable
detail its calculation of such increased cost or reduction, the
Borrower shall pay to such Bank such additional amount or amounts as
will compensate such Bank for such increased cost or reduction.
(b) If any Bank shall have determined that, after the
date hereof, the adoption or change of any applicable law, rule,
guideline or regulation regarding capital adequacy, or any change
therein, or any change in the interpretation or administration thereof
by any governmental authority, central bank or comparable agency
charged with the interpretation or
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administration thereof or any request or directive regarding capital
adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on capital of such Bank (or its
Parent) as a consequence of such Bank's obligations hereunder to a
level below that which such Bank (or its Parent) could have achieved
but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by an
amount deemed by such Bank to be material then from time to time,
within fifteen (15) days after demand by such Bank (with a copy to the
Agent) accompanied by a certificate setting forth in reasonable detail
its calculation of such reduction, the Borrower shall pay such Bank
such additional amount or amounts as will compensate such Bank (or its
Parent) for such reduction.
(c) Each Bank will promptly notify the Borrower and the
Agent of any event of which it has knowledge, occurring after the date
hereof, which will entitle such Bank to compensation pursuant to this
Section and will designate a different Applicable Lending Office if
such designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. A certificate of any Bank claiming
compensation under this Section and setting forth in reasonable detail
its calculation of the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of manifest error. In
determining such amount, such Bank may use any reasonable averaging and
attribution methods. Failure on the part of any Bank to demand
compensation under subsection (a) or (b) with respect to any period
shall not constitute a waiver of such Bank's right to demand
compensation with respect to such period or any other period; provided,
however, that no Bank shall be entitled to compensation for the period
which is more than thirty (30) days prior to the date the Borrower
receives the certificate described in this subsection (c) via
facsimile. Each Bank agrees that it will send the certificate described
above via facsimile to insure immediate receipt by the Borrower.
Section 8.04 Taxes.
Except as provided below in this subsection, all payments made by the
Borrower under this Credit Agreement and any Notes shall be made free and clear
of, and without deduction or withholding for or on account of, any present or
future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any court, or governmental body, agency or other
official, excluding taxes measured by or imposed upon the overall net income of
any Bank or its applicable lending office, or any branch or affiliate thereof,
and all franchise taxes, branch taxes, taxes on doing business or taxes on the
overall capital or net worth of any Bank or its applicable lending office, or
any branch or affiliate thereof, in each case imposed in lieu of net income
taxes, imposed: (i) by the jurisdiction under the laws of which such Bank,
applicable lending office, branch or affiliate is organized or is located, or in
which its principal executive office is located, or any nation within which such
jurisdiction is located or any political subdivision thereof; or (ii) by reason
of any connection between the jurisdiction imposing such tax and such Bank,
applicable lending office, branch or affiliate other than a connection arising
solely from such Bank having executed, delivered or performed its obligations,
or received payment under or enforced, this Credit Agreement or any Notes. If
any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions
or withholdings ("Non-Excluded Taxes") are required to be withheld from any
amounts payable to the Agent or any Bank hereunder or under any Notes, (A) the
amounts so payable to the Agent or such Bank shall be increased to the extent
necessary to yield to the Agent or such Bank (after payment of all Non-Excluded
Taxes) interest or any such other amounts payable hereunder at the rates or in
the amounts specified in this Credit Agreement and any Notes, provided, however,
that the Borrower shall be entitled to deduct and withhold any Non-Excluded
Taxes and shall not be required to increase any such amounts payable to any Bank
that is not organized under the laws of the United States of America or a state
thereof if such Bank fails to comply with the requirements of Section 2.14
whenever any Non-Excluded Taxes are payable by the Borrower, and (B) as promptly
as
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possible thereafter the Borrower shall send to the Agent for its own account or
for the account of such Bank, as the case may be, a certified copy of an
original official receipt received by the Borrower showing payment thereof. If
the Borrower fails to pay any Non-Excluded Taxes when due to the appropriate
taxing authority or fails to remit to the Agent the required receipts or other
required documentary evidence, the Borrower shall indemnify the Agent and the
Banks for any incremental taxes, interest or penalties that may become payable
by the Agent or any Bank as a result of any such failure. The agreements in this
subsection shall survive the termination of this Credit Agreement and the
payment of the Loans and all other amounts payable hereunder.
Section 8.05 Base Rate Loans Substituted for Affected
Eurodollar Loans.
If (i) the obligation of any Bank to make or maintain Eurodollar Loans
has been suspended pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03 and the Borrower shall by at least five (5)
Eurodollar Business Days' prior notice to such Bank through the Agent have
elected that the provisions of this Section shall apply to such Bank, then,
unless and until such Bank notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer apply:
(a) all Loans which would otherwise be made by such Bank
as (or continued as or converted into) Eurodollar Loans shall instead
be Base Rate Loans (on which interest and principal shall be payable
contemporaneously with the related Eurodollar Loans of the other
Banks), and
(b) after each of its Eurodollar Loans has been repaid
(or converted to a Base Rate Loan), all payments of principal which
would otherwise be applied to repay such Eurodollar Loans shall be
applied to repay its Base Rate Loans instead.
If such Bank notifies the Borrower that the circumstances giving rise to such
notice no longer apply, unless Borrower elects otherwise, the principal amount
of each such Base Rate Loan shall be converted into a Eurodollar Loan on the
first day of the next succeeding Interest Period applicable to the related
Eurodollar Loan of the other Banks.
Section 8.06 Substitution of Bank.
If (i) the obligation of any Bank to make Eurodollar Loans has been
suspended pursuant to Section 8.02 or (ii) any Bank has demanded compensation
under Section 8.03, the Borrower shall have the right, with the assistance of
the Agent, to seek a substitute bank or banks reasonably satisfactory to the
Agent and the Borrower (which may be one or more of the Banks) to purchase the
Note of such Bank and the interest of such Bank in the Unused Fees and to assume
the Commitment of such Bank for a purchase price equal to all amounts payable to
such Bank hereunder and under the Note, and the Borrower, the Agent, such Bank
and such substitute bank or banks shall execute and deliver an appropriately
completed Assignment and Assumption Agreement pursuant to Section 9.06(c) hereof
to effect the assignment of rights to and assumption of obligations by such
substitute bank or banks.
ARTICLE IX
MISCELLANEOUS
Section 9.01 Notices.
All notices, requests and other communications to any party hereunder
shall be in writing (including bank wire, telex, facsimile transmission or
similar writing) and shall be given to such party:
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(a) in the case of the Borrower and the Agent, at the address, facsimile number
or telex number set out below, and in the case of the Banks, at their respective
address, facsimile number or telex number set forth on the Schedule 9.1 hereto
or (b) at such other address, facsimile number or telex number as such party may
hereafter specify for the purpose of notice to the Agent and the Borrower:
If to the Borrower: Healthcare Realty Trust Incorporated
0000 Xxxx Xxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Treasurer
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Agent: Bank of America, N.A.
One Independence Center
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx
Agency Services
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Will Duke
Phone: (000) 000-0000
Fax: (000) 000-0000
Each such notice, request or other communication shall be effective (i) if given
by telex, when such telex is transmitted to the telex number specified in or
pursuant to this Section and the appropriate answer back is received, (ii) if
given by facsimile, when such facsimile is transmitted to the number specified
in or pursuant to this Section,(iii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iv) if given by any other means, when delivered at
the address specified in or pursuant to this Section; provided that notices to
the Agent or the Borrower or any Bank under Article II or Article VIII shall not
be effective until received.
Section 9.02 No Waivers.
No failure or delay by the Agent or any Bank in exercising any right,
power or privilege hereunder or under any Note shall operate as a waiver thereof
nor shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
Section 9.03 Expenses.
(a) The Borrower shall pay (i) all reasonable
out-of-pocket expenses of the Agent associated with the preparation and
due diligence of the Loans, including reasonable fees and disbursements
of special counsel for the Agent (but excluding administration and
syndication
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costs), in connection with any waiver or consent requested by Borrower
hereunder or any amendment hereof requested by Borrower or any Default
hereunder, any waiver or consent hereunder or any amendment hereof or
any Default or alleged Default hereunder and (ii) if an Event of
Default occurs, all reasonable out-of-pocket expenses incurred by the
Agent and each Bank, including reasonable fees and disbursements of
counsel in connection with such Event of Default and work-out,
collection, bankruptcy, insolvency and other enforcement proceedings
resulting therefrom.
(b) The Borrower shall indemnify and defend the Agent,
BAS and each other Bank and their respective directors, officers,
agents, employees, Subsidiaries and Affiliates (the "Indemnified
Parties") from, and hold each of them harmless against any and all
losses, liabilities, claims, damages or expenses incurred by any of
them arising out of, by reason of or in connection with this Credit
Agreement (but excluding any such losses, liabilities, claims, damages
or expenses incurred by reason of (i) the gross negligence or willful
misconduct by the indemnitee, and/or (ii) any claim made by Agent, BAS
or any Bank against the other), including, but without limitation,
amounts paid in settlement, court costs, and fees and disbursements of
no more than one separate law firm acting as counsel for any or all of
the parties indemnified hereunder, in each case incurred in connection
with any such investigation, litigation or other proceedings; provided,
that the Indemnified Parties shall be entitled to reimbursement of the
expenses of more than one separate law firm if the Indemnified Parties,
in their reasonable discretion, determine that a single law firm would
not be able to adequately represent the interests of the Indemnified
Parties in a matter. Notwithstanding the foregoing provisions of this
paragraph to the contrary, each Indemnified Party shall use its best
efforts to mitigate any losses, liabilities, claims, damages or
expenses as to which it is entitled to seek indemnity pursuant to the
provisions hereof.
Section 9.04 Sharing of Set-Offs.
Each Bank agrees that if it shall, by exercising any right of set-off
or counterclaim or otherwise, receive payment of a proportion of the aggregate
amount of principal and interest due with respect to any Note held by it which
is greater than the proportion received by any other Bank in respect of the
aggregate amount of principal and interest due with respect to any Note held by
such other Bank, the Bank receiving such proportionately greater payment shall
purchase such participation in the Notes held by the other Banks, and such other
adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Notes held by the Banks shall be
shared by the Banks pro rata. The Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any holder of a participation in a
Note, whether or not acquired pursuant to the foregoing arrangements, may
exercise rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of the Borrower in the amount of such participation.
Section 9.05 Amendments and Waivers.
Any provision of this Credit Agreement or any of the other Financing
Documents may be modified, amended or waived if, but only if, such modification,
amendment or waiver is in writing and is signed by the Borrower and the Majority
Banks (and, if the rights or duties of the Agent are affected thereby, by the
Agent); provided that no such modification, amendment or waiver shall, unless
signed by all the Banks, (a) increase the Commitment of any Bank or subject any
Bank to any additional obligation, (b) reduce the principal of or rate of
interest on any Loan or any fees or other amounts payable to any Bank hereunder,
(c) postpone the date fixed for any scheduled payment of principal of or
interest on any Loan or any fees hereunder or for any scheduled reduction or
termination of any Commitment, (d) except as provided in Section 2.01(d), change
the percentage of the Commitments or of the aggregate unpaid
-54-
59
principal amount of the Notes, or the number of Banks, which shall be required
for the Banks or any of them to take any action under this Section or any other
provision of this Credit Agreement, (e) change any definition or covenant level
requirement of the ratio of Consolidated Unencumbered Realty to Consolidated
Unsecured Debt in Section 5.21 or (f) release of any Subsidiary Guarantor from
its guaranty obligations of the loans and obligations hereunder, if any.
Section 9.06 Successors and Assigns.
(a) The provisions of this Credit Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Borrower may not
assign or otherwise transfer any of its rights or obligations under
this Credit Agreement without the prior written consent of all the
Banks, and no Bank may assign or otherwise transfer any of its rights
or obligations under this Credit Agreement except in compliance with
this Section 9.06; provided that nothing contained herein shall prevent
or prohibit any Bank from (i) pledging its Loans and Obligations to a
Federal Reserve Bank in support of borrowings made by such Bank from
such Federal Reserve Bank, or (ii) granting assignments or selling
participations in such Bank's Obligations and/or Commitments hereunder
to a parent company and/or an Affiliate or Subsidiary of such Bank.
(b) Any Bank at any time may grant to one or more banks
or other institutions (each a "Participant") participating interests in
its Commitment or any or all of its Loans. In the event of any such
grant by a Bank of a participating interest to a Participant, whether
or not upon notice to the Borrower and the Agent, such Bank shall
remain responsible for the performance of its obligations hereunder,
and the Borrower and the Agent shall continue to deal solely and
directly with such Bank in connection with such Bank's rights and
obligations under this Credit Agreement. Any agreement pursuant to
which any Bank may grant such a participating interest shall provide
that such Bank shall retain the sole right and responsibility to
enforce the obligations of the Borrower hereunder including, without
limitation, the right to approve any amendment, modification or waiver
of any provision of the Financing Documents; provided that such
participation agreement may provide that such Bank will not agree to
any modification, amendment or waiver of this Credit Agreement
described in clause (a), (b) or (c) of Section 9.05, without the
consent of the Participant. An assignment or other transfer which is
not permitted by subsection (c) or (d) below shall be given effect for
purposes of this Credit Agreement only to the extent of a participating
interest granted in accordance with this subsection (b).
(c) Each Bank may assign all or a portion of its rights,
obligations, or rights and obligations hereunder (including, without
limitation, its loans and commitments hereunder) pursuant to an
assignment agreement substantially in the form of Schedule 9.06(c), to
(i) a Bank, (ii) an affiliate of a Bank or (iii) any other Person
(other than the Borrower or an Affiliate of the Borrower) reasonably
acceptable to the Agent and, so long as no Default or Event of Default
has occurred and is continuing, the Borrower, which consent shall not
be unreasonably withheld or delayed and which consent shall be deemed
given if the Borrower shall not make written objection within two
Business Days after notice of the proposed assignment; provided that
(i) any such assignment (other than an assignment to an existing Bank
or affiliate of an existing Bank) shall be in a minimum aggregate
principal amount of $5,000,000 (or the remaining amount of loans and
commitments, if less) and integral multiples of $1,000,000 in excess
thereof, and (ii) each such assignment shall be in a constant, not
varying, percentage of all the Bank's rights and obligations under this
Credit Agreement. Any assignment hereunder shall be effective upon
delivery to the Agent of written notice of the assignment together with
a transfer fee of $3,500 payable to the Agent for its own account from
and after the effective date specified in the applicable assignment
agreement. The assigning Bank will give prompt notice to the Agent and
the Borrower of any such assignment. Upon the effectiveness of any such
assignment (and after notice
-55-
60
to, and (to the extent required pursuant to the terms hereof), with the
consent of, the Borrower as provided herein), the assignee shall become
a "Bank" for all purposes of this Credit Agreement and the other
Financing Documents and, to the extent of such assignment, the
assigning Bank shall be relieved of its obligations hereunder to the
extent of the Obligations and Commitment components being assigned.
Along such lines the Borrower agrees that upon notice of any such
assignment and surrender of the appropriate Note or Notes, it will
promptly provide to the assigning Bank and to the assignee separate
promissory notes in the amount of their respective interests
substantially in the form of the original Note (but with notation
thereon that it is given in substitution for and replacement of the
original Note or any replacement notes thereof). By executing and
delivering an assignment agreement in accordance with this
Section 11.3(b), the assigning Bank thereunder and the assignee
thereunder shall be deemed to confirm to and agree with each other and
the other parties hereto as follows: (i) such assigning Bank warrants
that it is the legal and beneficial owner of the interest being
assigned thereby free and clear of any adverse claim; (ii) except as
set forth in clause (i) above, such assigning Bank makes no
representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in
connection with this Credit Agreement, any of the other Financing
Documents or any other instrument or document furnished pursuant hereto
or thereto, or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Credit Agreement, any of the
other Financing Documents or any other instrument or document furnished
pursuant hereto or thereto or the financial condition of the Borrower
or any of its Affiliates or the performance or observance by the
Borrower of any of its obligations under this Credit Agreement, any of
the other Financing Documents or any other instrument or document
furnished pursuant hereto or thereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such
assignment agreement; (iv) such assignee confirms that it has received
a copy of this Credit Agreement, the other Financing Documents and such
other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such assignment
agreement; (v) such assignee will independently and without reliance
upon the Agent, such assigning Bank or any other Bank, and based on
such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking
action under this Credit Agreement and the other Financing Documents;
(vi) such assignee appoints and authorizes the Agent to take such
action on its behalf and to exercise such powers under this Credit
Agreement or any other Financing Document as are delegated to the Agent
by the terms hereof or thereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it
will perform in accordance with their terms all the obligations which
by the terms of this Credit Agreement and the other Financing Documents
are required to be performed by it as a Bank. Any purported assignment
which does not comply with the requirements of this Section 9.06(c)
shall be null and void.
(d) Any Bank may at any time assign all or any portion of
its rights under this Credit Agreement and its Notes to a Federal
Reserve Bank. No such assignment shall release the transferor Bank from
its obligations hereunder.
(e) The Borrower agrees that each Participant shall to
the extent provided in its participation agreement, be entitled to the
benefits of Section 8.03 and 2.15 with respect to its participating
interest; provided that no Participant or other transferee of any
Bank's rights shall be entitled to receive any greater payment under
Section 8.03 or 2.12 (whether individually or in aggregate with any
such payments received by such Bank) than such Bank would have been
entitled to receive with respect to the rights transferred if such
rights had not been transferred.
(f) Borrower shall not be required to pay any costs or
expenses in connection with any participation, assignment or transfer
described in this Section 9.06. No such participation or, except as
provided in Section 9.06(c) above with respect to an assignment which
is consented to
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61
by Borrower, assignment or transfer shall release any Bank from
liability for its obligations hereunder.
Section 9.07 Collateral.
Each of the Banks represents to the Borrower, the Agent and each of the
other Banks that it in good faith is not relying upon any "Margin Stock" (as
defined in Regulation U) as collateral in the extension or maintenance of the
credit provided for in the Financing Documents.
Section 9.08 Purpose.
This Credit Agreement refinances the Existing Credit Facility in full
and is given in replacement of and substitution for the Existing Credit
Agreement.
Section 9.09 Governing Law; Submission to Jurisdiction.
This Credit Agreement and each Note shall be governed by and construed
in accordance with the laws of the State of North Carolina. The Borrower, Agent
and each Bank hereby submits to the nonexclusive jurisdiction of the United
States District Court of the Western District of North Carolina and of any North
Carolina State court sitting in Charlotte for purposes of all legal proceedings
arising out of or relating to this Credit Agreement or the transactions
contemplated hereby. The Borrower, Agent and each Bank irrevocably waives, to
the fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum.
Section 9.10 Counterparts; Integration; Effectiveness.
This Credit Agreement may be signed in any number of counterparts, each
of which shall be an original with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Credit Agreement constitutes the
entire agreement and understanding among the parties hereto and supersedes any
and all prior agreements and understandings, oral or written, relating to the
subject matter hereof. This Credit Agreement shall become effective when the
Agent shall have received counterparts hereof signed by all of the parties
hereto.
Section 9.11 WAIVER OF JURY TRIAL.
EACH OF THE BORROWER, THE AGENT AND EACH BANK HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS CREDIT AGREEMENT, ANY FINANCING DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
[remainder of page intentionally left blank]
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62
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
HEALTHCARE REALTY TRUST INCORPORATED,
a Maryland corporation, as Borrower
By:
------------------------------------------------------
Name:
Title:
BANK OF AMERICA, N.A., in its capacity as
Agent and in its individual capacity as a Bank
By:
------------------------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK, in its capacity as a
Syndication Agent and in its individual capacity
as a Bank
By:
------------------------------------------------------
Name:
Title:
UBS AG, STAMFORD BRANCH, in its capacity as a
Syndication Agent and in its individual capacity
as a Bank
By:
------------------------------------------------------
Name:
Title:
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION
By:
------------------------------------------------------
Name:
Title:
AMSOUTH BANK
By:
------------------------------------------------------
Name:
Title:
CREDIT LYONNAIS, NEW YORK BRANCH
By:
------------------------------------------------------
Name:
Title:
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63
Schedule 2.01(a)
Schedule of Commitments
Revolving Committed Revolving Letter of Credit
Bank Amount Percentage Commitment
---- ------------------- ---------- ----------------
Bank of America, N.A. $ 35,000,000.00 23.333335% $ 2,333,333.50
First Union National Bank $ 35,000,000.00 23.333335% $ 2,333,333.50
UBS AG, Stamford Branch $ 35,000,000.00 23.333335% $ 2,333,333.50
First Tennessee Bank National Association $ 15,000,000.00 10.000000% $ 1,000,000.00
AmSouth Bank $ 15,000,000.00 10.000000% $ 1,000,000.00
Credit Lyonnais, New York Branch $ 15,000,000.00 10.000000% $ 1,000,000.00
------------------- ---------- ----------------
$150,000,000.00 100% $10,000,000.00
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64
Schedule 2.01(d)
Form of Bank Joinder Agreement
THIS BANK JOINDER AGREEMENT (this "Agreement") dated as of __________,
200__ to the Credit Agreement referenced below is by and among [NEW BANK] (the
"New Bank"), HEALTHCARE REALTY TRUST INCORPORATED, a Maryland corporation (the
"Borrower") and BANK OF AMERICA, N.A., as administrative agent (in such
capacity, the "Agent") for the Banks. Capitalized terms used but not defined
herein shall have the meanings provided in the Credit Agreement.
W I T N E S S E T H
WHEREAS, pursuant to that Amended and Restated Credit Agreement (as
amended and modified from time to time, the "Credit Agreement") dated as of
July 2, 2001 among the Borrower, the Banks and the Agent, the Banks agreed to
provide the Borrower with a $150 million revolving credit facility;
WHEREAS, pursuant to Section 2.01(d) of the Credit Agreement, the
Borrower has requested that the New Bank provide an additional Revolving
Commitment under the Credit Agreement; and
WHEREAS, the New Bank has agreed to provide the additional Revolving
Commitment on the terms and conditions set forth herein and to become a "Bank"
under the Credit Agreement in connection therewith.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. The New Bank hereby agrees to provide Commitments to the
Borrower in the amounts set forth on Schedule 2.01(a) to the Credit Agreement as
attached hereto. The Revolving Commitment Percentage of the New Bank shall be as
set forth on Schedule 2.01(a).
2. The New Bank (a) represents and warrants that it is a
commercial lender, other financial institution or other "accredited" investor
(as defined in SEC Regulation D) which makes or acquires or loans on the
ordinary course of business and that it will make or acquire Loans for its own
account in the ordinary course of business, (b) confirms that it has received a
copy of the Credit Agreement, together with copies of the financial statements
referred to in Section 5.01 thereof and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into this Agreement; (c) 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 credit decisions
in taking or not taking action under the Credit Agreement; (d) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement as are delegated to the
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; and (e) agrees that, as of the effective date,
the New Bank shall (i) be a party to the Credit Agreement and the other Credit
Documents, (ii) be a "Bank" for all purposes of the Credit Agreement and the
other Credit Documents, (iii) perform all of the obligations that by the terms
of the Credit Agreement are required to be performed by it as a "Bank" under the
Credit Agreement and (iv) shall have the rights and obligations of a Bank under
the Credit Agreement and the other Credit Documents.
3. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of North Carolina.
65
4. This Agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of
this Agreement by telecopier shall be effective as delivery of a manually
executed counterpart of this Agreement.
IN WITNESS WHEREOF, the New Bank, the Borrower and the Agent have
caused this Agreement to be executed by their officers thereunto duly authorized
as of the date hereof.
HEALTHCARE REALTY TRUST INCORPORATED,
a Maryland corporation
By:
------------------------------------------
Name:
Title:
BANK OF AMERICA, N.A. (formerly
NationsBank, N.A.), as Agent
By:
------------------------------------------
Name:
Title:
[NEW BANK],
as New Bank
By:
------------------------------------------
Name:
Title:
New Bank Address for Notices:
66
Schedule 2.02
FORM OF NOTICE OF BORROWING
Bank of America, N.A. Bank of America, N.A.,
as Agent for the Banks as Swingline Bank
000 X. Xxxxx Xxxxxx 000 X. Xxxxx Xxxxxx
Independence Center, 15th Floor Independence Center, 15th Floor
NC1-001-15-04 NC1-001-15-04
Charlotte, North Carolina 28255 Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services Attention: Agency Services
RE: Amended and Restated Credit Agreement dated as of July 2, 2001
(as amended and modified, the "Credit Agreement") among
HEALTHCARE REALTY TRUST INCORPORATED, the Banks identified
therein and Bank of America, N.A., as Agent. Terms used but
not otherwise defined herein shall have the meanings provided
in the Credit Agreement.
Ladies and Gentlemen:
The undersigned hereby gives notice of a request for Revolving Loan pursuant to
Section 2.02 of the Credit Agreement or of a request for Swingline Loan pursuant
to Section 2.07 (b) of the Credit Agreement as follows:
Revolving Loan
----------------------
Swingline Loan
----------------------
(A) Date of Borrowing
(which is a Business Day) -------------------------------
(B) Principal Amount of
Borrowing -------------------------------
(C) Interest rate basis -------------------------------
(D) Interest Period and the
last day thereof -------------------------------
In accordance with the requirements of Section 3.02 of the Credit Agreement, the
undersigned Borrower hereby certifies that:
(a) The representations and warranties contained in the Credit
Agreement and the other Credit Documents are true and correct in all material
respects as of the date of this request, and will be true and correct after
giving effect to the requested Extension of Credit (except for those which
expressly related to an earlier date).
(b) No Default or Event of Default exists, or will exist after giving
effect to the requested Extension of Credit.
(c) All conditions set forth in Section 2.02 as to the making of
Revolving Loans or in Section 2.07 as to the making of Swingline Loans, as
appropriate, have been satisfied.
67
Very truly yours,
HEALTHCARE REALTY TRUST INCORPORATED,
a Maryland corporation
By:
--------------------------------------
Name:
Title:
68
Schedule 2.03(a)
FORM OF REVOLVING NOTE
July 2, 2001
FOR VALUE RECEIVED, the undersigned Borrower hereby promises to pay to
the order of ______________________, its successors and assigns, on or before
the Termination Date to the office of the Agent in immediately available funds
as provided in the Credit Agreement,
(i) in the case of Revolving Loans, such Bank's Revolving
Committed Amount or, if less, the aggregate unpaid principal amount of
all Revolving Loans owing to such Bank; and
(ii) in the case of Swingline Loans, if such lender is the
Swingline Bank, the aggregate Swingline Committed Amount or, if less,
the aggregate unpaid principal amount of all Swingline Loans owing to
such Swingline Bank; and
together with interest thereon at the rates and as provided in the Credit
Agreement.
This Note is one of the Revolving Notes referred to in the Amended and
Restated Credit Agreement dated as of July 2, 2001 (as amended and modified, the
"Credit Agreement") among HEALTHCARE REALTY TRUST INCORPORATED, a Maryland
corporation, the Banks identified therein and Bank of America, N.A., as Agent.
Terms used but not otherwise defined herein shall have the meanings provided in
the Credit Agreement.
The holder may endorse and attach a schedule to reflect borrowings
evidenced by this Note and all payments and prepayments thereon; provided that
any failure to endorse such information shall not affect the obligation of the
undersigned Borrower to pay amounts evidenced hereby.
Upon the occurrence of an Event of Default, all amounts evidenced by
this Note may, or shall, become immediately due and payable as provided in the
Credit Agreement without presentment, demand, protest or notice of any kind, all
of which are waived by the undersigned Borrower. In the event payment of amounts
evidenced by this Note is not made at any stated or accelerated maturity, the
undersigned Borrower agrees to pay, in addition to principal and interest, all
costs of collection, including reasonable attorneys' fees.
This Note and the Loans and amounts evidenced hereby may be transferred
only as provided in the Credit Agreement.
This Note shall be governed by, and construed and interpreted in
accordance with, the law of the State of North Carolina.
In WITNESS WHEREOF, the undersigned Borrower has caused this Note to be
duly executed as of the date first above written.
HEALTHCARE REALTY TRUST INCORPORATED,
a Maryland corporation
By:
--------------------------------------
Name:
Title:
69
Schedule 2.06(a)
Letters of Credit to be issued on the Closing Date
70
Schedule 2.06(b)-1
Existing Letters of Credit
71
Schedule 2.06(b)-2
Form of Notice of Request for Letter of Credit
[Date]
Bank of America, N.A. Bank of America, N.A.
as Issuing Bank under the as Agent under the
Credit Agreement referred to below Credit Agreement referred to below
000 X. Xxxxx Xxxxxx 000 X. Xxxxx Xxxxxx
Independence Center, 15th Floor Independence Center, 15th Floor
NC1-001-15-04 NC1-001-15-04
Charlotte, North Carolina 28255 Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Re: Amended and Restated Credit Agreement dated as of July 2, 2001
(as amended and modified, the "Credit Agreement") among
HEALTHCARE REALTY TRUST INCORPORATED, the Banks identified
therein and Bank of America, N.A., as Agent. Terms used but
not otherwise defined herein shall have the meanings provided
in the Credit Agreement.
Ladies and Gentlemen:
The undersigned, pursuant to Section 2.06(b) of the Credit Agreement,
hereby requests that the following Letters of Credit be issued on [Date] as
follows:
(1) Account Party:
(2) For use by:
(3) Beneficiary:
(4) Face Amount of Letter of Credit:
(5) Date of Issuance:
Delivery of Letter of Credit should be made as follows:
In accordance with the requirements of Section 3.02 of the Credit
Agreement, the undersigned Borrower hereby certifies that:
(a) The representations and warranties contained in the Credit
Agreement and the other Credit Documents are true and correct in all material
respects as of the date of this request, and will be true and correct after
giving effect to the requested Extension of Credit (except for those which
expressly relate to an earlier date).
(b) No Default or Event of Default exists, or will exist after
giving effect to the requested Extension of Credit.
72
(c) All conditions set forth in Section 2.06 as to the issuance of
a Letter of Credit have been satisfied.
Very truly yours,
HEALTHCARE REALTY TRUST INCORPORATED,
a Maryland corporation
By:
-----------------------------------------
Name:
Title:
73
Schedule 2.10
Form of Notice of Interest Rate Election
Bank of America, N.A.,
as Agent for the Banks
000 X. Xxxxx Xxxxxx
Independence Center, 15th Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Re: Amended and Restated Credit Agreement dated as of July 2, 2001
(as amended and modified, the "Credit Agreement") among
HEALTHCARE REALTY TRUST INCORPORATED, the Banks identified
therein and Bank of America, N.A., as Agent. Terms used but
not otherwise defined herein shall have the meanings provided
in the Credit Agreement.
Ladies and Gentlemen:
The undersigned hereby gives notice pursuant to Section 2.10 of the
Credit Agreement that it requests an extension or conversion of a Revolving Loan
outstanding under the Credit Agreement, and in connection therewith sets forth
below the terms on which such extension or conversion is requested to be made:
(A) Date of Extension or Conversion
(which is the last day of the
applicable Interest Period)
--------------------------
(B) Principal Amount of
Extension or Conversion
--------------------------
(C) Interest rate basis
--------------------------
(D) Interest Period and the
last day thereof
--------------------------
In accordance with the requirements of Section 3.02 of the Credit
Agreement, the undersigned Borrower hereby certifies that:
(a) The representations and warranties contained in the
Credit Agreement and the other Credit Documents are true and correct in
all material respects as of the date of this request, and will be true
and correct after giving effect to the requested Extension of Credit
(except for those which expressly relate to an earlier date).
(b) No Default or Event of Default exists, or will exist
after giving effect to the requested Extension of Credit.
(c) All conditions set forth in Section 2.02 as to the
making of Revolving Loans or in Section 2.07 as to the making of
Swingline Loans, as appropriate, have been satisfied.
74
Very truly yours,
HEALTHCARE REALTY TRUST INCORPORATED,
a Maryland corporation
By:
-----------------------------------------
Name:
Title:
75
Schedule 4.04
Legal Proceedings
76
Schedule 4.05
ERISA Matters
77
Schedule 4.06
Environmental Matters
78
Schedule 4.07
Subsidiaries (including Specified Affiliates)
Subsidiaries:
Specified Affiliates:
Other Affiliates:
79
Schedule 4.10
Compliance with Laws
80
Schedule 4.12
Debt
81
Schedule 4.13
Contingent Liabilities
82
Schedule 4.14
Investments
83
Schedule 5.26
Form of Guaranty
84
Schedule 9.01
Bank's Addresses
Address for Domestic Eurodollar
Banks Notice Lending Office Lending Office
----- ------ -------------- --------------
Bank of America, N.A. Bank of America, N.A. Bank of America, N.A. Bank of America, N.A.
000 X. Xxxxx Xxxxxx 000 X. Xxxxx Xxxxxx 000 X. Xxxxx Xxxxxx
Independence Center, 15th Floor Independence Center, 00xx Xxxxx Xxxxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx Attn: Xxxxx X. Xxxxx Attn: Xxxxx X. Xxxxx
Tel: 000-000-0000 Tel: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000 Fax: 000-000-0000
With a copy to:
Bank of America, N.A.
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Will Duke
Tel: 000-000-0000
Fax: 000-000-0000
First Union National Bank First Union National Bank First Union National Bank First Union National Bank
One First Union, NC5604 One First Union, XX0000 Xxxxxxx Xxxxxxx Xxxxxxx Xxxx.
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000 One First Xxxxx Xxxxxx, XX-0
Attn: Xxx Xxxx Attn: Xxx Xxxxx 000 Xxxxx Xxxxxxx Xxxxxx
Tel: 000-000-0000 Tel: 704- Xxxxxxxxx, XX 00000-0000
Fax: 000-000-0000 Fax: 704- Attn: Xxx Xxxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
UBS AG, Stamford
Branch
First Tennessee Bank
National Association
85
Address for Domestic Eurodollar
Banks Notice Lending Office Lending Office
----- ------ -------------- --------------
AmSouth Bank
Credit Lyonnais, New
York Branch
86
Schedule 9.06(c)
Form of Assignment and Acceptance
THIS ASSIGNMENT AND ACCEPTANCE dated as of___________________ , 200____
is entered into between THE BANK IDENTIFIED ON THE SIGNATURE PAGES AS THE
"ASSIGNOR" (the "Assignor") and THE PARTIES IDENTIFIED ON THE SIGNATURE PAGES AS
"ASSIGNEES" ("Assignee").
Reference is made to that Amended and Restated Credit Agreement dated
as of July 2, 2001 (as amended and modified, the "Credit Agreement") among
HEALTHCARE REALTY TRUST INCORPORATED, a Maryland corporation (the "Borrower"),
the Banks identified therein and Bank of America, N.A., as Agent. Terms defined
in the Credit Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to
the Assignees, and the Assignees hereby purchase and assume, without recourse,
from the Assignor, effective as of the Effective Date shown below, those rights
and interests of the Assignor under the Credit Agreement identified below (the
"Assigned Interests"), including the Obligations and Commitments relating
thereto, together with unpaid interest and fees relating thereto accruing from
the Effective Date. The Assignor represents and warrants that it owns interests
assigned hereby free and clear of liens, encumbrances or other claims. Each of
the Assignees represents that it is an assignee permitted under Section 9.06(c)
of the Credit Agreement. The Assignor and each of the Assignees hereby makes and
agrees to be bound by all the representations, warranties and agreements set
forth in Section 9.06 of the Credit Agreement, a copy of which has been received
by each such party. From and after the Effective Date (i) each Assignee, if it
is not already a Bank under the Credit Agreement, shall be a party to and be
bound by the provisions of the Credit Agreement and, to the extent of the
interests assigned by this Assignment and Acceptance, have the rights and
obligations of a Bank thereunder and (ii) each Assignor shall, to the extent of
the interests assigned by this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Credit Agreement (other than the
rights of indemnification referenced in Section 9.03 of the Credit Agreement).
Schedule 2.1 is deemed modified and amended to the extent necessary to give
effect to this Assignment.
2. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of North Carolina.
3. Terms of Assignment
(a) Date of Assignment: , 200__
--------------------------
(b) Legal Name of Assignor: SEE SIGNATURE PAGE
(c) Legal Name of Assignee: SEE SIGNATURE PAGE
(d) Effective Date of Assignment: , 200__
--------------------------
See Schedule I attached for a description of the Loans, Obligations and
Commitments (and the percentage interests therein and relating thereto) which
are the subject of this Assignment and Acceptance.
4. The fee payable to the Agent in connection with this
Assignment is enclosed.
IN WITNESS WHEREOF, the parties hereto have caused the execution of
this instrument by their duly authorized officers as of the date first above
written.
ASSIGNOR: ASSIGNEE:
-------- --------
By: By:
------------------------- ----------------------------------
Name: Name:
Title: Title:
Address for Notices:
ACKNOWLEDGMENT AND CONSENT
BANK OF AMERICA, N.A. HEALTHCARE REALTY TRUST INCORPORATED,
as Agent a Maryland corporation
By: By:
---------------------------------- ------------------------------------
Name: Name:
Title: Title:
87
SCHEDULE I
TO ASSIGNMENT AND ACCEPTANCE
HEALTHCARE REALTY TRUST INCORPORATED
REVOLVING LOANS AND LETTERS OF CREDIT PRIOR TO ASSIGNMENT
Revolving Revolving Revolving LOC LOC
Committed Commitment Loans Committed Obligations
Amount Percentage Outstanding Amount Outstanding
--------- ---------- ----------- --------- -----------
ASSIGNOR
ASSIGNEES
--------- ---------- ----------- --------- -----------
$ $ $ $
88
REVOLVING LOANS AND LETTERS OF CREDIT INTERESTS SUBJECT TO THIS ASSIGNMENT
Revolving Revolving Revolving LOC LOC
Committed Commitment Loans Committed Obligations
Amount Percentage Outstanding Amount Outstanding
--------- ---------- ----------- --------- -----------
ASSIGNOR
ASSIGNEES
--------- ---------- ----------- --------- -----------
$ $ $ $
89
SCHEDULE I
TO ASSIGNMENT AND ACCEPTANCE
HEALTHCARE REALTY TRUST INCORPORATED
REVOLVING LOANS AND LETTERS OF CREDIT AFTER ASSIGNMENT
Revolving Revolving Revolving LOC LOC
Committed Commitment Loans Committed Obligations
Amount Percentage Outstanding Amount Outstanding
--------- ---------- ----------- --------- -----------
ASSIGNOR
ASSIGNEES
--------- ---------- ----------- --------- -----------
$ $ $ $
