EXHIBIT 10.4
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CREDIT AGREEMENT
dated as of
November 8, 2002
among
NATIONWIDE HEALTH PROPERTIES, INC.,
as Borrower,
The LENDERS Party Hereto,
JPMORGAN CHASE BANK,
as Administrative Agent,
and
X.X. XXXXXX SECURITIES INC. and BANC OF
AMERICA SECURITIES LLC,
as Joint Bookrunners and Joint Lead Arrangers
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$150,000,000
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS ................................................... 1
SECTION 1.01. Defined Terms ............................................. 1
SECTION 1.02. Classification of Loans and Borrowings .................... 19
SECTION 1.03. Terms Generally ........................................... 19
SECTION 1.04. Accounting Terms; GAAP .................................... 19
ARTICLE II. THE CREDITS .................................................. 19
SECTION 2.01. The Commitments ........................................... 19
SECTION 2.02. Loans and Borrowings ...................................... 20
SECTION 2.03. Requests for Revolving Borrowings ......................... 20
SECTION 2.04. Competitive Bid Procedure ................................. 21
SECTION 2.05. [Intentionally Deleted] ................................... 22
SECTION 2.06. Letters of Credit ......................................... 22
SECTION 2.07. Funding of Borrowings ..................................... 25
SECTION 2.08. Interest Elections ........................................ 26
SECTION 2.09. Termination, Reduction and Extension of the Commitments ... 27
SECTION 2.10. Repayment of Loans; Evidence of Debt ...................... 28
SECTION 2.11. Prepayment of Loans ....................................... 29
SECTION 2.12. Fees ...................................................... 30
SECTION 2.13. Interest .................................................. 31
SECTION 2.14. Alternate Rate of Interest ................................ 31
SECTION 2.15. Increased Costs ........................................... 32
SECTION 2.16. Break Funding Payments .................................... 33
SECTION 2.17. Taxes ..................................................... 33
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Setoff.. 34
SECTION 2.19. Mitigation Obligations; Replacement of Lenders ............ 36
ARTICLE III. REPRESENTATIONS AND WARRANTIES .............................. 36
SECTION 3.01. Organization; Powers ...................................... 36
SECTION 3.02. Authorization; Enforceability ............................. 36
SECTION 3.03. Governmental Approvals; No Conflicts ...................... 36
SECTION 3.04. Financial Condition; No Material Adverse Change ........... 37
SECTION 3.05. Properties ................................................ 37
SECTION 3.06. Litigation and Environmental Matters ...................... 37
SECTION 3.07. Compliance with Laws and Agreements ....................... 38
SECTION 3.08. Investment and Holding Company Status ..................... 38
SECTION 3.09. Taxes ..................................................... 38
SECTION 3.10. ERISA ..................................................... 38
SECTION 3.11. Disclosure ................................................ 38
SECTION 3.12. Use of Credit ............................................. 38
SECTION 3.13. Material Agreements and Liens ............................. 38
SECTION 3.14. Capitalization ............................................ 39
SECTION 3.15. Subsidiaries and Investments .............................. 39
SECTION 3.16. Real Property ............................................. 39
SECTION 3.17. Solvency .................................................. 39
SECTION 3.18. No Default ................................................ 40
SECTION 3.19. Insurance ................................................. 40
SECTION 3.20. Organizational Documents .................................. 40
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SECTION 3.21. Executive Offices; Places of Organization ................. 40
SECTION 3.22. Securities Act ............................................ 40
SECTION 3.23. REIT Status ............................................... 40
SECTION 3.24. Leases .................................................... 40
SECTION 3.25. Brokers ................................................... 40
ARTICLE IV. CONDITIONS ................................................... 40
SECTION 4.01. Effective Date ............................................ 40
SECTION 4.02. Each Credit Event ......................................... 42
ARTICLE V. AFFIRMATIVE COVENANTS ......................................... 42
SECTION 5.01. Financial Statements and Other Information ................ 42
SECTION 5.02. Notices of Material Events ................................ 43
SECTION 5.03. Existence; Conduct of Business ............................ 44
SECTION 5.04. Payment of Obligations .................................... 44
SECTION 5.05. Maintenance of Properties; Insurance ...................... 44
SECTION 5.06. Books and Records; Inspection Rights ...................... 44
SECTION 5.07. Compliance with Laws ...................................... 45
SECTION 5.08. Use of Proceeds and Letters of Credit ..................... 45
SECTION 5.09. Further Assurances ........................................ 45
SECTION 5.10. REIT Status ............................................... 45
SECTION 5.11. Hazardous Materials ....................................... 45
ARTICLE VI. NEGATIVE COVENANTS ........................................... 45
SECTION 6.01. Indebtedness .............................................. 45
SECTION 6.02. Liens ..................................................... 45
SECTION 6.03. Fundamental Changes ....................................... 46
SECTION 6.04. Investments ............................................... 46
SECTION 6.05. Restricted Payments ....................................... 47
SECTION 6.06. Transactions with Affiliates .............................. 47
SECTION 6.07. Certain Financial Covenants ............................... 48
SECTION 6.08. Organizational Documents .................................. 48
SECTION 6.09. Fiscal Year ............................................... 48
SECTION 6.10. Senior Management ......................................... 48
SECTION 6.11. Dispositions .............................................. 49
ARTICLE VII. EVENTS OF DEFAULT ........................................... 49
ARTICLE VIII. THE ADMINISTRATIVE AGENT ................................... 51
ARTICLE IX. MISCELLANEOUS ................................................ 52
SECTION 9.01. Notices ................................................... 52
SECTION 9.02. Waivers; Amendments ....................................... 53
SECTION 9.03. Expenses; Indemnity; Damage Waiver ........................ 53
SECTION 9.04. Successors and Assigns .................................... 54
SECTION 9.05. Survival .................................................. 57
SECTION 9.06. Counterparts; Integration; Effectiveness .................. 57
SECTION 9.07. Severability .............................................. 57
SECTION 9.08. Right of Setoff ........................................... 57
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SECTION 9.09. Governing Law; Jurisdiction; Etc .......................... 57
SECTION 9.10. WAIVER OF JURY TRIAL ...................................... 58
SECTION 9.11. Headings .................................................. 58
SECTION 9.12. Confidentiality ........................................... 58
SECTION 9.13. Additional Commitments .................................... 59
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SCHEDULE 2.01 - Commitments
SCHEDULE 3.06 - Litigation and Environmental Disclosed Matters
SCHEDULE 3.13 - Material Agreements and Liens
SCHEDULE 3.14 - Stock Options
SCHEDULE 3.15 - Subsidiaries and Investments
SCHEDULE 3.16 - Real Property
SCHEDULE 3.24 - Leases
SCHEDULE 4.01(e) - Organizational Documents
EXHIBIT A - Form of Assignment and Assumption
EXHIBIT B-1 - Form of Revolving Note
EXHIBIT B-2 - Form of Competitive Note
EXHIBIT C - Form of Revolving Borrowing Request
EXHIBIT D - Form of Revolving Interest Election Request
EXHIBIT E - Form of Competitive Bid Request
EXHIBIT F - Form of Opinion of Counsel to the Borrower
EXHIBIT G Form of Opinion of Special New York Counsel to the Borrower
EXHIBIT H - Form of Compliance Certificate
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CREDIT AGREEMENT dated as of November 8, 2002, between NATIONWIDE
HEALTH PROPERTIES, INC., the LENDERS party hereto, and JPMORGAN CHASE BANK, as
Administrative Agent.
The Borrower (as hereinafter defined) has requested that the Lenders
(as hereinafter defined) extend credit to it in an aggregate principal or face
amount not exceeding $150,000,000 (subject to increase up to a maximum aggregate
amount of $200,000,000 in accordance with the provisions of Section 9.13) at any
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one time outstanding. The Lenders are prepared to extend such credit upon the
terms and conditions hereof, and, accordingly, the parties hereto agree as
follows:
ARTICLE I.
DEFINITIONS
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SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
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have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
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whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Accepting Lender" has the meaning assigned to such term in Section
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9.13.
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"Additional Commitment Amount" has the meaning assigned to such term
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in Section 9.13.
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"Additional Syndication Notice" has the meaning assigned to such term
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in Section 9.13.
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"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
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for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JPMorgan, in its capacity as
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administrative agent for the Lenders hereunder.
"Administrative Agent's Account" means an account designated by the
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Administrative Agent in a notice to the Borrower and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire
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in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
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that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Aggregate Investment Value" means for each permitted Investment
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identified in Section 6.04 of this Agreement (and any related Property referred
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to in such Section), the greater of (i) the purchase price of such Investment
(and related Property); or (ii) that portion of the Capitalization Value
represented by the relevant Investment (and related Property) as calculated in
the most recent Measuring Period.
"Alternate Base Rate" means, for any day, a rate per annum equal to
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the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate for such day plus 1/2 of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Lender, the
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percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the
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Applicable Percentages shall be determined based upon the Commitments most
recently in effect, giving effect to any assignments.
"Applicable Rate" means, for any day, with respect to any ABR Loan or
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Eurodollar Revolving Loan, or with respect to the facility fees payable
hereunder, as the case may be, the applicable rate per annum set forth below
under the caption "ABR Spread", "Eurodollar Spread" or "Facility Fee Rate", as
the case may be, based upon the ratings by Xxxxx'x, Fitch and S&P, respectively,
applicable on such date to the Index Debt:
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Index Debt Ratings: ABR Eurodollar Facility Fee
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S&P/Xxxxx'x/Fitch Spread Spread Rate
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Category 1
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A-/A3/A- or better 0.00% 0.825% 0.175%
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Category 2
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BBB+/Baa1/BBB+ 0.00% 0.90% 0.20%
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Category 3
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BBB/Baa2/BBB 0.00% 1.00% 0.25%
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Category 4
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BBB-/Baa3/BBB- 0.00% 1.20% 0.30%
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Category 5
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Not rated or less than: 0.00% 1.50% 0.35%
BBB-/Baa3/BBB-
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For purposes of the foregoing, (i) if any of Xxxxx'x, Fitch or S&P
shall not have in effect a rating for the Index Debt (other than by reason of
the circumstances referred to in the last sentence of this definition), then
such rating agency shall be deemed to have established a rating in Category 5;
(ii) if only two of the ratings established or deemed to have been established
by Xxxxx'x, Fitch and S&P for the Index Debt shall fall within the same
Category, the Applicable Rate shall be based on the two rating agencies that are
in agreement; (iii) if none of the ratings established or deemed to have been
established by Xxxxx'x, Fitch and S&P for the Index Debt shall fall within the
same Categories, the Applicable Rate shall be based on the lower of the two
highest ratings; and (iv) if the ratings established or deemed to have been
established by Xxxxx'x, Fitch and S&P for the Index Debt shall be changed (other
than as a result of a change in the rating system of Xxxxx'x, Fitch or S&P),
such change shall be effective as of the date on which it is first announced by
the applicable rating agency, irrespective of when notice of such change shall
have been furnished by the Borrower to the Agent and the Lenders pursuant to
Section 5.01 or otherwise. Each change in the Applicable Rate shall apply during
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the period commencing on the effective date of such change and ending on the
date immediately preceding the effective date of the next such change. If the
rating system of Xxxxx'x, Fitch or S&P shall change, or if either such rating
agency shall cease to be in the business of rating corporate debt obligations,
the Borrower and the Lenders shall negotiate in good faith to amend this
definition to reflect such changed rating system or the unavailability of
ratings from such rating agency and, pending the effectiveness of any such
amendment, the Applicable Rate shall be determined by reference to the rating
most recently in effect prior to such change or cessation.
"Approved Fund" has the meaning assigned to such term in Section 9.04.
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"Arrangers" means X.X. Xxxxxx Securities Inc. and Banc of America
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Securities LLC.
"Assignment and Assumption" means an assignment and assumption entered
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into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
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of Exhibit A or any other form approved by the Administrative Agent.
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"Availability Period" means the period from and including the
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Effective Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Board" means the Board of Governors of the Federal Reserve System of
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the United States of America.
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"Borrower" means Nationwide Health Properties, Inc., a Maryland
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corporation.
"Borrowing" means (a) Revolving Loans of the same Type, made,
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converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect, or (b) a Competitive Loan or
group of Competitive Loans of the same Type made on the same date and as to
which a single Interest Period is in effect.
"Bullet Payment" shall mean any payment of the entire unpaid balance
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of any Indebtedness at its final maturity other than the final payment with
respect to a loan that is fully amortized over its term.
"Business Day" means any day that is not a Saturday, Sunday or other
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day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a Borrowing,
continuation, a payment or prepayment of principal of or interest on, or
Interest Period for, a Eurodollar Loan, or a notice by a Borrower with respect
to any such Borrowing, continuation, payment, prepayment or Interest Period, the
term "Business Day" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"Capitalization Value" means, at any date, solely with respect to the
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Nationwide Entities, the sum of (without duplication):
(a) EBITDA for the most recent Measuring Period divided by (b) 11%
(expressed as a decimal);
plus
(b) all Cash and Cash Equivalents held by any Nationwide Entity at
such time, and, in the case of Cash and Cash Equivalents not Wholly-Owned,
multiplied by a percentage (expressed as a decimal) equal to the percentage
of the total outstanding Equity Interest held by any Nationwide Entity
holding title to such Cash and Cash Equivalents;
provided, however, (i) newly acquired Properties shall be valued at acquisition
cost for the first three fiscal quarters of ownership (ii) the determination of
Capitalization Value for any period shall not include any Property (or any
portion of EBITDA relating to any such Property) that has been sold or otherwise
disposed of at any time prior to or during such period.
"Capitalized Loan Fees" means, with respect to the Nationwide
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Entities, and with respect to any period, any upfront, closing or similar fees
paid by such Person in connection with the incurrence or refinancing of
Indebtedness during such period that are capitalized on the balance sheet of
such Person.
"Capital Lease Obligations" of any Person means the obligations of
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such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Cash and Cash Equivalents" means, with respect to any Person, (a)
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cash and (b) any unrestricted Investment that qualifies as a Permitted
Investment (other than, in either case, Restricted Cash).
"Cash Flow" means, for any period, Net Income plus Depreciation and
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Amortization Expense, increases in deferred taxes and other non-cash charges and
expenses which were deducted in determining Net Income of the Consolidated
Entities determined on a consolidated basis, as determined in accordance with
GAAP, and including the Consolidated Entities pro rata share of the net income
(or loss) of any Joint Venture in which such Consolidated Entity owns a direct
or indirect Equity Interest.
"Change in Control" means (a) the acquisition of ownership, directly
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or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), of Equity
Interest representing
Credit Agreement
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more than 20% of the aggregate ordinary voting power represented by the issued
and outstanding Equity Interest of the Borrower; (b) occupation of a majority of
the seats (other than vacant seats) on the board of directors of the Borrower by
Persons who were not approved in advance in writing by the Required Lenders; or
(c) the acquisition of direct or indirect Control of the Borrower by any Person
or group.
"Change in Law" means (a) the adoption of any law, rule or regulation
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after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender or the Issuing
Lender (or, for purposes of Section 2.15(b), by any lending office of such
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Lender or by such Lender's or the Issuing Lender's holding company, if any) with
any request, guideline or directive (whether or not having the force of law) of
any Governmental Authority made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
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whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Competitive Loans.
"Code" means the Internal Revenue Code of 1986, as amended from time
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to time, and the regulations promulgated and the rulings issued thereunder.
"Commencement of Construction" means (a) with respect to any
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unimproved Real Property, the commencement of material on-site work (including
grading) to initially construct a Healthcare Property, (b) with respect to any
improved Real Property which is not then a Healthcare Property, the commencement
of material on-site work to convert such Real Property to a Healthcare Property
or (c) with respect to any improved Real Property which is already a Healthcare
Property, the commencement of material reconstruction, restoration or renovation
with respect to such Healthcare Property in a manner that results in more than
twenty-five percent (25%) of the beds located in such Healthcare Property being
unusable for a period of time in excess of thirty (30) days.
"Commitment" means, with respect to each Lender, the commitment of
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such Lender to make Revolving Loans and to acquire participations in Letters of
Credit hereunder, expressed as an amount representing the maximum aggregate
amount of such Lender's Revolving Credit Exposure hereunder, as such commitment
may be (a) reduced from time to time pursuant to Section 2.09 or 2.11(c) and (b)
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reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04. The initial amount of each Lender's Commitment
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is set forth on Schedule 2.01, or in the Assignment and Assumption pursuant to
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which such Lender shall have assumed its Commitment, as applicable. The initial
aggregate amount of the Lenders' Commitments is $150,000,000, subject to
increase up to a maximum aggregate amount of $200,000,000 in accordance with the
provisions of Section 9.13.
"Competitive", when used in reference to any Loan or Borrowing, refers
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to whether such Loan, or the Loans constituting such Borrowing, are made
pursuant to Section 2.04.
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"Competitive Bid" means an offer by a Lender to make a Competitive
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Loan in accordance with Section 2.04.
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"Competitive Bid Rate" means, with respect to any Competitive Bid, the
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Margin offered by the Lender making such Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
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Competitive Bids in accordance with Section 2.04.
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"Competitive Loan" means a Loan made pursuant to Section 2.04.
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"Competitive Notes" means the promissory notes provided for in Section
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2.10(f)(ii) and all promissory notes delivered in substitution or exchange
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therefor, in each case as the same shall be Modified and in effect from time to
time.
"Compliance Certificate" shall mean a certificate in the form of that
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attached to the Credit
Credit Agreement
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Agreement as Exhibit H, with such changes thereto as the Administrative Agent
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may from time to time reasonably request.
"Consolidated Entities" means, collectively, (a) the Borrower, (b) the
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Borrower's Subsidiaries; and (c) any other Person the accounts of which are
consolidated with those of the Borrower in the consolidated financial statements
of the Borrower in accordance with GAAP.
"Contingent Obligation" as to any Person means, without duplication,
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(i) any contingent obligation of such Person required to be shown on such
Person's balance sheet in accordance with GAAP, and (ii) any obligation required
to be disclosed in the footnotes to such Person's financial statements in
accordance with GAAP, guaranteeing partially or in whole any Non-Recourse
Indebtedness, lease, dividend or other obligation, exclusive of contractual
indemnities (including, without limitation, any indemnity or price-adjustment
provision relating to the purchase or sale of securities or other assets), of
such Person or of any other Person. The amount of any Contingent Obligation
described in clause (ii) shall be deemed to be (a) with respect to a guaranty of
interest or interest and principal, or operating income guaranty, the sum of all
payments required to be made thereunder (which in the case of an operating
income guaranty shall be deemed to be equal to the debt service for the note
secured thereby), calculated at the interest rate applicable to such
Indebtedness, through (1) in the case of an interest or interest and principal
guaranty, the stated date of maturity of the obligation (and commencing on the
date interest could first be payable thereunder), or (2) in the case of an
operating income guaranty, the date through which such guaranty will remain in
effect, and (b) with respect to all guarantees not covered by the preceding
clause (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such guaranty is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as recorded on the
balance sheet and on the footnotes to the most recent financial statements of
the applicable Person required to be delivered pursuant hereto. Notwithstanding
anything contained herein to the contrary, guarantees of completion and
non-recourse carve outs in secured loans shall not be deemed to be Contingent
Obligations unless and until a claim for payment has been made thereunder, at
which time any such guaranty of completion shall be deemed to be Indebtedness in
an amount equal to any such claim. Subject to the preceding sentence, (i) in the
case of a joint and several guaranty given by such Person and another Person
(but only to the extent such guaranty is recourse, directly or indirectly to the
applicable Borrower Party or their respective Subsidiaries), the amount of the
guaranty shall be deemed to be 100% thereof unless and only to the extent that
(X) such other Person has delivered cash or Cash Equivalents to secure all or
any part of such Person's guaranteed obligations or (Y) such other Person holds
an investment grade credit rating from either Xxxxx'x or S&P, and (ii) in the
case of a guaranty (whether or not joint and several) of an obligation otherwise
constituting Indebtedness of such Person, the amount of such guaranty shall be
deemed to be only that amount in excess of the amount of the obligation
constituting Indebtedness of such Person. Notwithstanding anything contained
herein to the contrary, "Contingent Obligations" shall not be deemed to include
guarantees of loan commitments or of construction loans to the extent the same
have not been drawn.
"Control" means the possession, directly or indirectly, of the power
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to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
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"Default" means any event or condition which constitutes an Event of
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Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Depreciation and Amortization Expense" means (without duplication),
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for any period, the sum for such period of (i) total depreciation and
amortization expense, whether paid or accrued, of the Consolidated Entities,
plus (ii) any Consolidated Entity's pro rata share of depreciation and
amortization expenses of Joint Ventures in which a Consolidated Entity owns a
direct or indirect Equity Interest. For purposes of this definition, the
Consolidated Entities' pro rata share of depreciation and amortization expense
of any Joint Venture in which a Consolidated Entity owns a direct or indirect
Equity Interest shall be deemed equal to the product of (i) the depreciation and
amortization expense of such Joint Venture, multiplied by (ii) the percentage of
the total outstanding Equity Interest of such Person held directly or indirectly
by any Consolidated Entity, expressed as a decimal.
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"Disclosed Matters" means (a) the actions, suits and proceedings and
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(b) the environmental matters disclosed in Schedule 3.06.
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"Disposition" means the sale, conveyance, pledge, hypothecation,
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ground lease, encumbrance, creation of a security interest with respect to, or
other transfer, whether voluntary or involuntary, direct or indirect, of any
legal or beneficial interest in a Property, including any sale, conveyance,
pledge, hypothecation, ground lease, encumbrance, creation of a security
interest with respect to, or other transfer, at any tier, of any ownership
interest in any Nationwide Entity; provided, however, that Disposition shall not
include any Permitted Encumbrances.
"Disqualified Capital Stock" shall mean with respect to any Person any
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Equity Interest of such Person that by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable), or
otherwise (including upon the occurrence of any event), is required to be
redeemed or is redeemable for cash at the option of the holder thereof, in whole
or in part (including by operation of a sinking fund), or is exchangeable for
Indebtedness (other than at the option of such Person), in whole or in part, at
any time.
"dollars" or "$" refers to lawful money of the United States of
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America.
"EBITDA" means, for a Measuring Period, solely with respect to the
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Nationwide Entities, (i) Net Income, plus (without duplication) (A) Interest
Expense, (B) Tax Expense, and (C) Depreciation and Amortization Expense, in each
case for such period.
"Effective Date" means the date on which the conditions specified in
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Section 4.01 are satisfied (or waived in accordance with Section 9.02).
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"Environmental Laws" means all laws, rules, regulations, codes,
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ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material.
"Environmental Liability" means any liability, contingent or otherwise
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(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities, and including any Lien filed against any Real Property
in favor of any governmental entity), of the Borrower or any Subsidiary Entity
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Interests" means shares of capital stock, partnership
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interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person, and any
warrants, options or other rights entitling the holder thereof to purchase or
acquire any such equity interest.
"Equity Rights" means, with respect to any Person, any subscriptions,
-------------
options, warrants, commitments, preemptive rights or agreements of any kind
(including any shareholders' or voting trust agreements) for the issuance, sale,
registration or voting of, or securities convertible into, any additional shares
of capital stock of any class, or partnership or other ownership interests of
any type in, such Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time, or any successor statute.
"ERISA Affiliate" means any trade or business (whether or not
---------------
incorporated) that, together with any Consolidated Entity, is treated as a
single employer under Section 414(b) or (c) of the Code, or, solely for purposes
of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
Credit Agreement
----------------
-7-
"ERISA Event" means (a) any "reportable event", as defined in Section
-----------
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by a Consolidated Entity or any of its ERISA Affiliates
of any liability under Title IV of ERISA with respect to the termination of any
Plan; (e) the receipt by any Consolidate Entity or any ERISA Affiliate from the
PBGC or a plan administrator of any notice relating to an intention to terminate
any Plan or Plans or to appoint a trustee to administer any Plan; (f) the
incurrence by a Consolidated Entity or any of its ERISA Affiliates of any
liability with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by a Consolidated Entity or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan from a
Consolidated Entity or any ERISA Affiliate of any notice, concerning the
imposition of Withdrawal Liability or a determination that a Multiemployer Plan
is, or is expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
----------
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate (or in the
case of a Competitive Loan, the LIBO Rate).
"Event of Default" has the meaning assigned to such term in Article
---------------- -------
VII.
---
"Event of Loss" means with respect to any Property of any Nationwide
-------------
Entity (a) any loss, destruction or damage of such Property, (b) any pending or
threatened institution of any proceedings for the condemnation or seizure of
such Property or of any right of eminent domain or (c) any actual condemnation,
seizure or taking, by exercise of the power of eminent domain or otherwise, of
such Property, or confiscation of such Property or requisition of the use of
such Property.
"Excluded Taxes" means, with respect to the Administrative Agent, any
--------------
Lender, the Issuing Lender or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.19(b)), any withholding tax that is imposed on amounts
---------------
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement (or designates a new lending office) or is attributable to
such Foreign Lender's failure to comply with Section 2.17(e), except to the
---------------
extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.17(a).
---------------
"Existing Revolving Credit Facility" means that certain $100,000,000
----------------------------------
revolving credit facility evidenced by the Amended and Restated Credit Agreement
dated as of July 27, 1999 (as Modified from time to time) by and among the
Borrower, as borrower, the banks and other financial institutions party thereto
and Xxxxx Fargo Bank, National Association, as agent.
"Federal Funds Effective Rate" means, for any day, the weighted
----------------------------
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal
-----------------
accounting officer, treasurer or controller of the Borrower.
Credit Agreement
----------------
-8-
"Fiscal Quarter" or "fiscal quarter" means any three-month period
-------------- --------------
ending on March 31, June 30, September 30 or December 31 of any Fiscal Year.
"Fiscal Year" or "fiscal year" means the 12-month period ending on
----------- -----------
December 31 in each year or such other period as the Borrower may designate and
the Administrative Agent may approve in writing.
"Fitch" means Fitch Investors Service, Inc.
-----
"Fixed Charges Ratio" means, as at any date, the ratio of (a) EBITDA
-------------------
for the Measuring Period ending on or most recently ended prior to such date to
(b) Fixed Charges for such period.
"Fixed Charges" means, for any period, solely with respect to
-------------
Nationwide Entities, the sum of the amounts for such period of (i) scheduled
payments of principal of Indebtedness of the Consolidated Entities (other than
any Bullet Payment), (ii) the Consolidated Entities' pro rata share of scheduled
payments of principal of Indebtedness of Joint Ventures in which a Consolidated
Entity owns a direct or indirect Equity Interest (other than any Bullet Payment)
that does not otherwise constitute Indebtedness of and is not otherwise recourse
to any of the Consolidated Entities or their assets, (iii) Interest Expense,
(iv) payments of dividends in respect of Disqualified Capital Stock; and (v) to
the extent not otherwise included in Interest Expense, dividends and other
distributions paid during such period by the Borrower with respect to preferred
stock or preferred operating units. For purposes of clauses (ii) and (v), the
------------ ---
Consolidated Entities' pro rata share of payments by any Joint Venture in which
a Consolidated Entity owns a direct or indirect Equity Interest shall be deemed
equal to the product of (a) the payments made by such Joint Venture, multiplied
by (b) the percentage of the total outstanding Equity Interest of such Person
held directly or indirectly by any Consolidated Entity, expressed as a decimal.
"Foreign Lender" means any Lender that is organized under the laws of
--------------
a jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"GAAP" means generally accepted accounting principles in the United
----
States of America.
"Governmental Authority" means the government of the United States of
----------------------
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
---------
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive substances or
-------------------
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Healthcare Lease" means a lease of a Healthcare Property by the
----------------
Borrower or one of its Subsidiary Entities, as lessor, to an Operator, as
lessee.
Credit Agreement
----------------
-9-
"Healthcare Property" means a property operating as a nursing home, an
-------------------
acute care hospital, a rehabilitation hospital, an assisted living facility, an
adult congregate living facility, a personal care facility, a medical office
building, or any combination of the foregoing; provided that any of the
foregoing may also include independent living units as part of such property.
"Healthcare Property Under Construction" means Real Property for which
--------------------------------------
Commencement of Construction has occurred but either: (i) construction of such
Real Property is not substantially complete; or (ii) such Real Property is not
subject to a Healthcare Lease.
"Indebtedness" of any Person means, without duplication, (a) all
------------
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit, letters of guaranty and similar instruments, (j)
all obligations, contingent or otherwise, of such Person in respect of bankers'
acceptances, (k) all synthetic leases and (l) all Net Swap Obligations under or
in respect of Swap Agreements. The Indebtedness of any Person shall include the
Indebtedness of any other entity (including any partnership in which such Person
is a general partner) to the extent such Person is liable therefor as a result
of such Person's ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness provide that such Person is
not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
-----------------
"Indemnitee" has the meaning assigned to such term in Section 9.03(b).
---------- ---------------
"Index Debt" means senior, unsecured, long-term indebtedness for
----------
borrowed money of the Borrower that is not guaranteed by any other Person or
subject to any other credit enhancement.
"Information" has the meaning assigned to such term in Section 9.12.
----------- ------------
"Information Memorandum" means the Confidential Information Memorandum
----------------------
dated September 2002 relating to the Borrower and the Transactions.
"Interest Coverage Ratio" means, as at any date of determination
-----------------------
thereof, the ratio of (a) EBITDA for the Measuring Period ending on or most
recently ended prior to such date to (b) Interest Expense for such period.
"Interest Election Request" means a request by the Borrower to convert
-------------------------
or continue a Revolving Borrowing in accordance with Section 2.08.
------------
"Interest Expense" means, for any period, the sum, for the Nationwide
----------------
Entities (determined on a consolidated basis without duplication in accordance
with GAAP), of the following: (a) all interest in respect of Indebtedness
(including the interest component of any payments in respect of Capital Lease
Obligations) of the Consolidated Entities accrued or capitalized during such
period (whether or not actually paid during such period), (b) the net amount
payable (or minus the net amount receivable) under Swap Agreements relating to
interest during such period (whether or not actually paid or received during
such period), (c) for purposes of determining Interest Expense as used in the
Fixed Charge Coverage Ratio (both numerator and denominator) only, amortization
of Capitalized Loan Fees, (d) interest incurred on any liability or obligation
that constitutes a Contingent Obligation of any Consolidated Entity and (e) to
the extent not included in clauses (a), (b), (c) and (d), any Consolidated
----------- --- --- ---
Entities' pro rata share of interest expense and other amounts of the type
referred to in such clauses of the Joint Ventures in which such Consolidated
Entity owns a direct or indirect Equity Interest. For purposes of clause (e),
----------
any
Credit Agreement
----------------
-10-
Consolidated Entities' pro rata share of interest expense or other amount of any
Joint Venture in which such Consolidated Entity owns a direct or indirect Equity
Interest shall be deemed equal to the product of (a) the interest expense or
other relevant amount of such Joint Venture, multiplied by (b) the percentage of
the total outstanding Equity Interest of such Person held directly or indirectly
by any Consolidated Entity, expressed as a decimal.
"Interest Payment Date" means (a) with respect to any ABR Loan, each
---------------------
Quarterly Date and (b) with respect to any Eurodollar Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Eurodollar Borrowing with an Interest Period of more than three
months' duration, each day prior to the last day of such Interest Period that
occurs at intervals of three months' duration after the first day of such
Interest Period (provided that if such day is not a Business Day, then the next
day that is a Business Day).
"Interest Period" means with respect to any Eurodollar Borrowing, the
---------------
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or, with the
consent of each Lender, six months thereafter, as the Borrower may elect;
provided, that (i) if any Interest Period would end on a day other than a
---------
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurodollar Borrowing only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (ii) any
Interest Period pertaining to a Eurodollar Borrowing that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period. For
purposes hereof, the date of a Borrowing initially shall be the date on which
such Borrowing is made and, in the case of a Revolving Borrowing, thereafter
shall be the effective date of the most recent conversion or continuation of
such Borrowing.
"Investment" means, for any Person: (a) any purchase or other
----------
acquisition by that Person of Securities, or of a beneficial interest in
Securities, issued by any other Person, (b) any purchase by that Person of a
Property or the assets of a business conducted by another Person, (c) any loan
(other than loans to employees), advance (other than deposits with financial
institutions available for withdrawal on demand, prepaid expenses, accounts
receivable, advances to employees and similar items made or incurred in the
ordinary course of business) or capital contribution by that Person to any other
Person, including, without limitation, all Indebtedness to such Person arising
from a sale of property by such Person other than in the ordinary course of its
business and (d) the entering into of any Guarantee of, or other contingent
obligation with respect to, Indebtedness or other liability of any other Person
and (without duplication) any amount committed to be advanced, lent or extended
to such Person. The amount of any Investment shall be the original cost of such
Investment, plus the cost of all additions thereto less the amount of any return
of capital or principal to the extent such return is in cash with respect to
such Investment without any adjustments for increases or decreases in value or
write-ups, write-downs or write-offs with respect to such Investment.
"Issuing Lender" means JPMorgan, in its capacity as the issuer of
--------------
Letters of Credit hereunder, and its successors in such capacity as provided in
Section 2.06(j). The Issuing Lender may, in its discretion, arrange for one or
---------------
more Letters of Credit to be issued by Affiliates of the Issuing Lender, in
which case the term "Issuing Lender" shall include any such Affiliate with
respect to Letters of Credit issued by such Affiliate.
"Joint Venture" means, as to any Person: (i) any corporation fifty
-------------
percent (50%) or less of the outstanding securities having ordinary voting power
of which shall at the time be owned or controlled, directly or indirectly, by
such Person or by one or more of its Subsidiaries or by such Person and one or
more of its Subsidiaries, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization fifty percent (50%)
or less of the ownership interests having ordinary voting power of which shall
at the time be so owned or controlled. Notwithstanding the foregoing, a Joint
Venture of the Borrower shall include each Person, other than a Subsidiary, in
which the Borrower owns a direct or indirect Equity Interest (excluding,
however, the unexercised subscription warrants in (a) Liberty Healthcare of
Oklahoma, Inc., a Georgia corporation, pursuant to Common Stock Purchase Warrant
dated February 9, 1996; (b) Liberty Healthcare of Indiana, Inc., an Indiana
corporation, pursuant to Common Stock Purchase Warrant dated February 9, 1996;
(c) Westview Manor Healthcare Associates, Inc., a Kansas corporation, pursuant
to a Common Stock Purchase Warrant dated February 9, 1996; and (d) Liberty
Healthcare, Inc., a Virginia corporation, pursuant to Common Stock Purchase
Warrant dated
Credit Agreement
----------------
-11-
February 9, 1996, until such time, if any, that such warrants are exercised).
Unless otherwise expressly provided, all references in the Loan Documents to a
"Joint Venture" shall mean a Joint Venture of the Borrower.
"JPMorgan" means JPMorgan Chase Bank.
--------
"LC Disbursement" means a payment made by the Issuing Lender pursuant
---------------
to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
-----------
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower at such time. The LC Exposure of any Lender at any time shall be
its Applicable Percentage of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.01 and any other
------- -------------
Person that shall have become a party hereto pursuant to an Assignment and
Assumption, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Assumption.
"Letter of Credit" means any letter of credit issued pursuant to this
----------------
Agreement.
"Letter of Credit Documents" means, with respect to any Letter of
--------------------------
Credit, collectively, any application therefor and any other agreements,
instruments, guarantees or other documents (whether general in application or
applicable only to such Letter of Credit) governing or providing for (a) the
rights and obligations of the parties concerned or at risk with respect to such
Letter of Credit or (b) any collateral security for any of such obligations,
each as the same may be Modified and in effect from time to time.
"LIBO Rate" means, for the Interest Period for any Eurodollar
---------
Borrowing, the rate appearing on Page 3750 of the Dow Xxxxx Market Service (or
on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for the offering of dollar
deposits with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the "LIBO Rate"
with respect to such Eurodollar Borrowing for such Interest Period shall be the
rate at which dollar deposits of $5,000,000 and for a maturity comparable to
such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
----
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, or any other type of preferential arrangement that has the
practical effect of creating a security interest, in, on or of such asset
(excepting Permitted Encumbrances), (b) the interest of a vendor or a lessor
under any conditional sale agreement, capital lease or title retention agreement
(or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means, collectively, this Agreement, the Notes, the
--------------
Letter of Credit Documents, and each other instrument, certificate or agreement
executed by the Borrower in connection herewith, as any of the same may be
Modified from time to time.
"Loans" means the loans made by the Lenders to the Borrower pursuant
-----
to this Agreement.
"Low Coverage Property" means a Qualified Unencumbered Property with a
---------------------
Rent/Mortgage Interest Coverage Ratio of less than 1.00 to 1.00, provided that
any Stabilizing Property will not be included as a Low Coverage Property until
after the expiration of its respective four quarter period.
Credit Agreement
----------------
-12-
"Margin" means, with respect to any Competitive Loan bearing interest
------
at a rate based on the LIBO Rate, the marginal rate of interest, if any, to be
added to or subtracted from the LIBO Rate to determine the rate of interest
applicable to such Loan, as specified by the Lender making such Loan in its
related Competitive Bid.
"Margin Stock" means "margin stock" within the meaning of Regulations
------------
T, U and X of the Board.
"Material Adverse Effect" means a material adverse effect on (a) the
-----------------------
business, assets, operations, prospects or condition, financial or otherwise, of
the Borrower and its Subsidiaries taken as a whole, (b) the ability of the
Borrower to perform any of its material obligations under this Agreement or any
of the other Loan Documents to which it is a party or (c) the rights of or
benefits available to the Lenders under this Agreement or any of the other Loan
Documents.
"Material Agreement" has the meaning assigned to such term in Section
------------------ -------
3.13(a).
-------
"Material Indebtedness" means Indebtedness (other than the Loans and
---------------------
Letters of Credit), or obligations in respect of one or more Swap Agreements,
that is recourse to any one or more of the Borrower and the Nationwide Core
Entities in an aggregate principal amount exceeding $10,000,000. For purposes of
determining Material Indebtedness, the "principal amount" of the obligations of
the Borrower and any Nationwide Core Entity in respect of any Swap Agreement at
any time shall be the maximum aggregate amount (giving effect to any netting
agreements) that the Borrower or such Nationwide Core Entity would be required
to pay if such Swap Agreement were terminated at such time.
"Maturity Date" means November 7, 2005, as the same may be extended in
-------------
accordance with Section 2.09(e).
---------------
"Measuring Period" means the period of four consecutive fiscal
----------------
quarters ended on (a) the last day of the Fiscal Quarter most recently ended.
"Modifications" means any amendments, supplements, modifications,
-------------
renewals, replacements, consolidations, severances, substitutions and extensions
of any document or instrument from time to time; "Modify", "Modified", or
related words shall have meanings correlative thereto.
"Moody's" means Xxxxx'x Investors Service, Inc.
-------
"Mortgage Loan" means any loan owned or held by any of the Nationwide
-------------
Entities secured by a mortgage or deed of trust on Healthcare Properties.
"Multiemployer Plan" means a multiemployer plan as defined in Section
------------------ -------
4001(a)(3) of ERISA.
----------
"Nationwide Core Entities" means collectively, (a) the Consolidated
------------------------
Entities, and (b) all Unconsolidated Joint Ventures of which any Consolidated
Entity is a general partner, managing member or of which any Consolidated Entity
owns more than 50% of the Equity Interest.
"Nationwide Entities" means the Borrower and all Subsidiary Entities
-------------------
of the Borrower.
"Net Asset Value" means (a) Capitalization Value minus (b) Total
---------------
Liabilities.
"Net Income" means, for any period, the net income (or loss), after
----------
provision for taxes, of the Consolidated Entities determined on a consolidated
basis for such period taken as a single accounting period as determined in
accordance with GAAP, and including the Consolidated Entities' pro rata share of
the net income (or loss) of any Joint Venture in which such Consolidated Entity
owns a direct or indirect Equity Interest for such period, but excluding (i) any
recorded losses and gains arising from the sale of any Real Property and/or
Mortgage Loans and other extraordinary items for such period; (ii) other
non-cash charges and expenses (including non-cash charges resulting from
accounting changes) and (iii) any gains or losses arising outside of the
ordinary course of
Credit Agreement
----------------
-13-
business. For purposes hereof the Consolidated Entities' pro rata share of the
net income (or loss) of any Joint Venture in which such Consolidated Entity owns
a direct or indirect Equity Interest shall be deemed equal to the product of (i)
the income (or loss) of such Joint Venture, multiplied by (ii) the percentage of
the total outstanding Equity Interest of such Person held directly or indirectly
by any Consolidated Entity, expressed as a decimal.
"Net Swap Obligations" means, as of any date of determination, the
--------------------
excess (if any) of all "unrealized losses" over all "unrealized profits" of such
Person arising from Swap Agreement as substantiated in writing by the Borrower
and approved by the Administrative Agent. "Unrealized losses" means the fair
market value of the cost to such Person of replacing such Swap Agreement as of
the date of determination (assuming the Swap Agreement were to be terminated as
of that date), and "unrealized profits" means the fair market value of the gain
to such Person of replacing such Swap Agreement as of the date of determination
(assuming such Swap Agreement were to be terminated as of that date).
"Non-Recourse Indebtedness" means any Indebtedness: (a) under the
-------------------------
terms of which the payee's remedies upon the occurrence of any event of default
are limited to specific, identified assets of the payor which secure such
Indebtedness and (b) for the repayment of which the payor has no personal
liability beyond the loss of such specified assets, except for liability for
fraud, material misrepresentation or misuse or misapplication of insurance
proceeds, condemnation awards or rents, existence of hazardous wastes and other
then customary exceptions to non-recourse provisions.
"Notes" means the Revolving Notes and the Competitive Notes.
-----
"Obligations" means all obligations, liabilities and indebtedness of
-----------
every nature of the Borrower, from time to time owing to the Administrative
Agent, the Issuing Lender or any Lender under or in connection with this
Agreement or any other Loan Document to which it is a party, including, without
limitation, principal, interest, fees (including fees of counsel), and expenses
whether now or hereafter existing under the Loan Documents.
"Operator" means any Person who leases Real Property from the Borrower
--------
or any of its Subsidiary Entities pursuant to a Healthcare Lease for the purpose
of operating such Real Property as a Healthcare Property.
"Organizational Documents" means: (a) for any corporation, the
------------------------
certificate or articles of incorporation, the bylaws, any certificate of
determination or instrument relating to the rights of preferred shareholders of
such corporation, and all applicable resolutions of the board of directors (or
any committee thereof) of such corporation, (b) for any partnership, the
partnership agreement, any certificate of formation, and any other instrument or
agreement relating to the rights between the partners or pursuant to which such
partnership is formed, (c) for any limited liability company, the operating
agreement, any articles of organization or formation, and any other instrument
or agreement relating to the rights between the members, pertaining to the
manager, or pursuant to which such limited liability company is formed, and (d)
for any trust, the trust agreement and any other instrument or agreement
relating to the rights between the trustors, trustees and beneficiaries, or
pursuant to which such trust is formed.
"Other Taxes" means any and all present or future stamp or documentary
-----------
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made under any Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, any Loan Document.
"Participant" has the meaning set forth in Section 9.04.
----------- ------------
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
----
defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
----------------------
(a) Liens imposed by law for taxes, fees, assessments or other
governmental charges or levies that are not yet delinquent or are being
contested in compliance with Section 5.04;
-------------
Credit Agreement
----------------
-14-
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of business
and securing obligations that are not overdue by more than 30 days or are being
contested in compliance with Section 5.04;
------------
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other social
security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature, in each case in the ordinary course of
business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (l) of Article VII;
---------- -----------
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary course
of business that do not (i) secure any monetary obligations, (ii) materially
detract from the value of the affected property as it is then being used, (iii)
materially interfere with the ordinary conduct of business of any Nationwide
Entities or (iv) violate any terms or conditions of this Agreement; and
(g) statutory landlord's Liens under leases to which the Borrower or
any of its Subsidiary Entities is a party.
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
---------------------
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed by
the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the highest
credit rating obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts issued
or offered by, any domestic office of any commercial bank organized under the
laws of the United States of America or any State thereof which has a combined
capital and surplus and undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) of this definition and
----------
entered into with a financial institution satisfying the criteria described in
clause (c) of this definition; and
----------
(e) money market funds that (i) comply with the criteria set forth in
Securities and Exchange Commission Rule 2a-7 under the Investment Company Act of
1940, (ii) are rated AAA by S&P and Aaa by Moody's and (iii) have portfolio
assets of at least $5,000,000,000.
"Person" means any natural person, corporation, limited liability
------
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
----
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which any
Consolidated Entity or any of their ERISA Affiliates is (or, if such plan were
terminated, would under Section 4069
Credit Agreement
----------------
-15-
of ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Prime Rate" means the rate of interest per annum publicly announced
----------
from time to time by JPMorgan as its prime rate in effect at its principal
office in New York City; each change in the Prime Rate shall be effective from
and including the date such change is publicly announced as being effective.
"Process Agent" has the meaning assigned to such term in Section
------------- -------
9.09(d).
-------
"Property" means, collectively and severally, any and all Real
--------
Property and all personal property owned or occupied by the subject Person.
"Property" shall include all Equity Interests owned by the subject Person in a
Subsidiary Entity.
"Property Expense" means, for any Healthcare Property, all operating
----------------
expenses incurred by any Operator relating to such Healthcare Property, as
reported by such Operator to a Nationwide Entity in such Operator's most recent
report, which report shall not be more than one year old at the time of any
determination of Property NOI. "Property Expense" shall exclude, however,
depreciation expense, amortization expense, non-cash charges and expenses,
management fees, rent (in the case a Healthcare Lease exists) or interest
related to a Mortgage Loan (in the case a Mortgage Loan exists).
"Property Income" means, for any Healthcare Property, all gross
---------------
revenue from the received by an Operator from the operation of such Healthcare
Property, as reported by such Operator to a Nationwide Entity in such Operator's
most recent report, which report shall not be more than one year old at the time
of any determination of Property NOI.
"Property NOI" means, for any Healthcare Property for any period, (i)
------------
all Property Income for such period, minus (ii) all Property Expenses for such
period; provided, however, if the respective Operator's report of Property
Income and Property Expenses for such Healthcare Property is more than one year
old at the time of determination, Property NOI for such Healthcare Property will
be disregarded for purposes determining the Rent/Mortgage Interest Coverage
Ratio.
"Qualified Unencumbered Properties" means Real Properties and/or
---------------------------------
Mortgage Loans that (a) are not encumbered by a Lien (other than a Permitted
Encumbrance), (b) Wholly-Owned by the Borrower or a Subsidiary Wholly-Owned by
the Borrower, (c) are located, or encumber real properties that are located, in
the United States and (d) are operated, or encumber real properties that are
operated, as a Healthcare Property.
"Quarterly Dates" means the last Business Day of March, June,
---------------
September and December in each year, the first of which shall be the first such
day after the date hereof.
"Real Property" means each of those parcels (or portions thereof) of
-------------
real property, improvements and fixtures thereon and appurtenances thereto now
or hereafter owned or leased by the Nationwide Entities.
"Register" has the meaning set forth in Section 9.04.
-------- ------------
"REIT" means a domestic trust or corporation that qualifies as a real
----
estate investment trust under the provisions of Sections 856, et seq. of the
Code.
"Related Parties" means, with respect to any specified Person, such
---------------
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Rent/Mortgage Interest Coverage Ratio" means, as of any date of
-------------------------------------
determination, (a) when used with respect to any Qualified Unencumbered Property
(provided that, with respect to Qualified Unencumbered Properties covered by a
single, master Healthcare Lease or Mortgage Loan, such calculation shall be
determined based upon the aggregate amount of rent received, or interest paid,
as applicable, under such single, master Healthcare Lease or Mortgage Loan
attributable to the applicable Qualified Unencumbered Property and the aggregate
Property NOI for all such Qualified Unencumbered Properties covered by such
single, master Healthcare
Credit Agreement
----------------
-16-
Lease or Mortgage Loan, as applicable, attributable to the applicable Qualified
Unencumbered Property) the ratio of (i) the Property NOI for such Qualified
Unencumbered Property for such period to (ii) the aggregate amount of rent
received under a Healthcare Lease or interest paid under a Mortgage Loan, as
applicable, for such Qualified Unencumbered Property for the Measuring Period
ending on or most recently ended prior to such date and (b) when used with
respect to all Qualified Unencumbered Properties in the aggregate, the ratio of
(i) the aggregate Property NOI for such Qualified Unencumbered Properties for
such period to (ii) the sum of (A) the aggregate rent received under all
Healthcare Leases for Qualified Unencumbered Properties and (B) the aggregate
interest paid under all Mortgage Loans for Qualified Unencumbered Properties for
the Measuring Period ending on or most recently ended prior to such date.
"Required Lenders" means, at any time, Lenders having Revolving Credit
----------------
Exposures and unused Commitments representing at least 66.66% of the sum of the
total Revolving Credit Exposures and unused Commitments at such time; provided
--------
that, for purposes of declaring the Loans to be due and payable pursuant to
Article VII, and for all purposes after the Loans become due and payable
-----------
pursuant to Article VII or the Commitments expire or terminate, the outstanding
-----------
Competitive Loans of the Lenders shall be included in their respective Revolving
Credit Exposures in determining the Required Lenders.
"Restricted Cash" means any cash or cash equivalents held by any
---------------
Person with respect to which such Person does not have unrestricted access and
unrestricted right to expend such cash or expend or liquidate such permitted
Investments.
"Restricted Payment" means any dividend or other distribution (whether
------------------
in cash, securities or other property) with respect to any Equity Interests in
the Borrower or any of its Subsidiaries, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any such Equity Interests in the Borrower or any option, warrant
or other right to acquire any such Equity Interests in the Borrower or any of
its Subsidiaries.
"Revolving Borrowing Request" means a request by the Borrower for a
---------------------------
Revolving Borrowing in accordance with Section 2.03.
------------
"Revolving Credit Exposure" means, with respect to any Lender at any
-------------------------
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans and its LC Exposure at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
-------------- ------------
"Revolving Notes" means the promissory notes provided for in Section
--------------- -------
2.10(f)(i) and all promissory notes delivered in substitution or exchange
----------
therefor, in each case as the same shall be Modified and in effect from time to
time.
"S&P" means Standard & Poor's Ratings Service, a division of The
---
XxXxxx-Xxxx Companies, Inc.
"Secured Indebtedness" means that portion of the Total Liabilities
--------------------
that is, without duplication, secured by a Lien.
"Secured Indebtedness Ratio" means, at any time, the ratio (expressed
--------------------------
as a percentage) of (i) Secured Indebtedness, to (ii) Capitalization Value for
such period.
"Securities" means any stock, shares, partnership interests,
----------
membership interests, voting trust certificates, certificates of interest or
participation in any profit sharing agreement or arrangement, bonds, debentures,
options, warrants, notes, or other evidences of indebtedness, secured or
unsecured, convertible, subordinated or otherwise, or in general any instruments
commonly known as "securities" or any certificates of interest, shares or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing.
Credit Agreement
----------------
-17-
"Solvent" means, when used with respect to any Person, that at the
-------
time of determination: (i) the fair saleable value of its assets is in excess of
the total amount of its liabilities (including, without limitation, contingent
liabilities); (ii) the present fair saleable value of its assets is greater than
its probable liability on its existing debts as such debts become absolute and
matured; (iii) it is then able and expects to be able to pay its debts
(including, without limitation, contingent debts and other commitments) as they
mature; and (iv) it has capital sufficient to carry on its business as conducted
and as proposed to be conducted.
"Stabilizing Property" means a Qualified Unencumbered Property that
--------------------
has been acquired or in operation for less than four quarters.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
----------------------
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred
to as "Eurocurrency Liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"Subsidiary" means, with respect to any Person (the "parent") at any
----------
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent. Unless otherwise
specified, "Subsidiary" means a Subsidiary of the Borrower.
"Subsidiary Entities" means a Subsidiary or Joint Venture of a Person.
-------------------
Unless otherwise expressly provided, all references in the Loan Documents to a
"Subsidiary Entity" shall mean a Subsidiary Entity of the Borrower.
"Swap Agreement" means any agreement with respect to any swap,
--------------
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic, financial or
pricing indices or measures of economic, financial or pricing risk or value or
any similar transaction or any combination of these transactions; provided that
--------
no phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of the Borrower or its Subsidiaries shall be a Swap Agreement.
"Taxes" means any and all present or future taxes, levies, imposts,
-----
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Tax Expense" means (without duplication), for any period, total tax
-----------
expense (if any) attributable to income and franchise taxes based on or measured
by income, whether paid or accrued, of the Consolidated Entities, including the
Consolidated Entities' pro rata share of tax expenses in any Joint Venture in
which a Consolidated Entity owns a direct or indirect Equity Interest. For
purposes of this definition, any Consolidated Entity's pro rata share of any
such tax expense of any Joint Venture in which a Consolidated Entity owns a
direct or indirect Equity Interest shall be deemed equal to the product of (i)
such tax expense of such Joint Venture, multiplied by (ii) the percentage of the
total outstanding Equity Interest of such Person held directly or indirectly by
such Consolidated Entity, expressed as a decimal.
Credit Agreement
----------------
-18-
"Total Liabilities" means, as at any date, without duplication, the
-----------------
aggregate amount of (i) all Indebtedness and other liabilities of the
Consolidated Entities reflected in the financial statements of the Borrower or
disclosed in the notes thereto (to the extent the same would constitute a
Contingent Obligation), plus (ii) all Indebtedness and other liabilities of all
Joint Ventures in which a Consolidated Entity owns a direct or indirect Equity
Interest reflected in the financial statements of such Joint Ventures or
disclosed in the notes thereto (to the extent the same would constitute a
Contingent Obligation) which are otherwise recourse to any Consolidated Entity
or any of its assets or that otherwise constitutes Indebtedness of any
Consolidated Entity (including any recourse obligations arising as a result of a
Consolidated Entity serving as a general partner, directly or indirectly, in
such Joint Ventures), plus (iii) all liabilities of the Consolidated Entities
with respect to purchase and repurchase obligations, provided that any
obligations to acquire fully-constructed Real Property shall not be included in
Total Liabilities prior to the transfer of title of such Real Property, plus
(iv) to the extent not included in clauses (i), (ii) and (iii), any Consolidated
----------- ---- -----
Entity's pro rata share of all Indebtedness, other amounts of the types referred
to in such clauses and other liabilities reflected in the financial statements
of any Joint Venture in which such Consolidated Entity owns a direct or indirect
Equity Interest or disclosed in the notes thereto (to the extent the same would
constitute a Contingent Obligation) not otherwise constituting Indebtedness of
or recourse to any Consolidated Entity or any of its assets. For purposes of
clause (iv), the Consolidated Entities' pro rata share of all Indebtedness and
-----------
other liabilities of any Joint Venture in which a Consolidated Entity owns a
direct or indirect Equity Interest shall be deemed equal to the product of (a)
such Indebtedness or other liabilities, multiplied by (b) the percentage of the
total outstanding Equity Interest of such Person held directly or indirectly by
any Consolidated Entity, expressed as a decimal.
"Transactions" means the execution, delivery and performance by the
------------
Borrower of this Agreement and the other Loan Documents, the borrowing of Loans,
the use of the proceeds thereof and the issuance of Letters of Credit hereunder.
"Type", when used in reference to any Loan or Borrowing, refers to
----
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate, the Alternate
Base Rate or, in the case of a Competitive Loan or Borrowing, the LIBO Rate.
"Unconsolidated Joint Venture" means (i) any Joint Venture of the
----------------------------
Borrower or any Subsidiary Entity in which the Borrower or such Subsidiary
Entity holds any Equity Interest but which would not be combined with the
Borrower in the consolidated financial statements of the Borrower in accordance
with GAAP, and (ii) any Investment of the Borrower or any Subsidiary Entity in
any Person that is not a Joint Venture.
"Unencumbered Asset Value" means, at any date, solely with respect to
------------------------
the Borrower and its Wholly-Owned Subsidiaries, (a) EBITDA from Qualified
Unencumbered Properties for the most recent Measuring Period divided by (b) 11%
(expressed as a decimal); provided, however, (i) newly acquired Qualified
Unencumbered Properties shall be valued at acquisition cost until there have
been four fiscal quarters of ownership; (ii) prior to the first anniversary of
the Effective Date, no more than 20% of the Unencumbered Asset Value can result
from Low Coverage Properties; (iii) from and including the first anniversary of
the Effective Date to but excluding the second anniversary of the Effective
Date, no more than 15% of the Unencumbered Asset Value can result from Low
Coverage Properties; (iv) on and after the second anniversary of the Effective
Date, no more than 10% of the Unencumbered Asset Value can result from Low
Coverage Properties; (v) at no time may more than 10% of the Unencumbered Asset
Value result from Stabilizing Properties; (vi) to the extent that the average
Rent/Mortgage Interest Coverage Ratio is less than 1.25 to 1.00, EBITDA
attributable to Qualified Unencumbered Properties with a Rent/Mortgage Interest
Coverage Ratio of less than 1.25 to 1.00 shall be excluded from the computation
of Unencumbered Asset Value to the extent necessary to achieve an average
Rent/Mortgage Interest Coverage Ratio of 1.25 to 1.00; and (vii) the
determination of Unencumbered Asset Value for any period shall not include any
Qualified Unencumbered Property (or any portion of EBITDA relating to any such
Qualified Unencumbered Property) that has been sold or otherwise disposed of at
any time prior to or during such period.
"Unencumbered Asset Value Ratio" means, at any date, the ratio
------------------------------
(expressed as a percentage) of (a) Total Liabilities (exclusive of Total
Liabilities of a Joint Venture provided that such Total Liabilities are not
Contingent Obligations of Borrower or any of its Wholly-Owned Subsidiaries)
which are unsecured by a Lien to (b) Unencumbered Asset Value.
Credit Agreement
----------------
-19-
"Uniform Commercial Code" means the Uniform Commercial Code as in
-----------------------
effect from time to time in the State of New York.
"Unsecured Interest Coverage Ratio" means, as at any date of
---------------------------------
determination thereof, the ratio of (a) EBITDA arising from Qualified
Unencumbered Properties for the Measuring Period ending on or most recently
ended prior to such date to (b) Interest Expense (exclusive of Interest Expense
of a Joint Venture provided that such Interest Expense is not a Contingent
Obligation of Borrower or any of its Wholly-Owned Subsidiaries) not secured by a
Lien for such period.
"Wholly-Owned" means, with respect to any Real Property, Equity
------------
Interest, or other Property owned or leased, that (i) title to such Property is
held directly by, or such Property is leased by, the Borrower or a Subsidiary of
the Borrower.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
--------------------
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of this
--------------------------------------
Agreement, Loans may be classified and referred to by Class (e.g., a "Revolving
Loan"), by Type (e.g., a "Eurodollar Loan") or by Class and Type (e.g., a
"Revolving Eurodollar Loan"). Borrowings also may be classified and referred to
by Class (e.g., a "Revolving Borrowing"), by Type (e.g., a "Eurodollar
Borrowing") or by Class and Type (e.g., a "Revolving Eurodollar Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall apply
---------------
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
----------------------
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II.
THE CREDITS
-----------
SECTION 2.01. The Commitments. Subject to the terms and conditions set
---------------
forth herein, each Lender agrees to make Revolving Loans to the Borrower from
time to time during the Availability Period in an aggregate principal amount
that will not result in (a) such Lender's Revolving Credit Exposure exceeding
such Lender's
Credit Agreement
----------------
-20-
Commitment or (b) the sum of the total Revolving Credit Exposures plus the
aggregate principal amount of outstanding Competitive Loans exceeding the total
Commitments. Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.
SECTION 2.02. Loans and Borrowings.
--------------------
(a) Obligations of Lenders. Each Revolving Loan shall be made as part
----------------------
of a Borrowing consisting of Loans made by the Lenders ratably in accordance
with their respective Commitments. Each Competitive Loan shall be made in
accordance with the procedures set forth in Section 2.04. The failure of any
------------
Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided that the Commitments and
Competitive Bids of the Lenders are several and no Lender shall be responsible
for any other Lender's failure to make Loans as required.
(b) Type of Loans. Subject to Section 2.14, (i) each Revolving
------------- ------------
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
Borrower may request in accordance herewith, and (ii) each Competitive Borrowing
shall be comprised entirely of Eurodollar Loans as the Borrower may request in
accordance herewith. Each Lender at its option may make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this
Agreement.
(c) Minimum Amounts; Limitation on Number of Borrowings. At the
---------------------------------------------------
commencement of each Interest Period for any Eurodollar Revolving Borrowing,
such Borrowing shall be in an aggregate amount that is an integral multiple of
$1,000,000 and not less than $3,000,000. At the time that each ABR Revolving
Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $3,000,000; provided that an
ABR Revolving Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Commitments or that is required to finance
the reimbursement of an LC Disbursement as contemplated by Section 2.06(f). Each
---------------
Competitive Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $25,000,000. Borrowings of more than
one Type and Class may be outstanding at the same time; provided that there
shall not at any time be more than a total of eight Eurodollar Revolving
Borrowings outstanding.
(d) Limitations on Lengths of Interest Periods. Notwithstanding any
------------------------------------------
other provision of this Agreement, the Borrower shall not be entitled to
request, or to elect to convert or continue as any Borrowing if the Interest
Period requested therefor would end after the Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving
---------------------------------
Borrowing, the Borrower shall notify the Administrative Agent of such request by
telephone (a) in the case of a Eurodollar Borrowing, not later than 1:00 p.m.,
New York City time, three Business Days before the date of the proposed
Borrowing or (b) in the case of an ABR Revolving Borrowing, not later than 1:00
p.m., New York City time, one Business Day before the date of the proposed
Borrowing; provided that any such notice of an ABR Revolving Borrowing to
finance the reimbursement of an LC Disbursement as contemplated by Section
-------
2.06(f) may be given not later than 12:00 noon, New York City time, on the date
-------
of the proposed Borrowing. Each such telephonic Revolving Borrowing Request
shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Revolving Borrowing Request in
the form set forth in Exhibit C (or such other form approved by the
---------
Administrative Agent) and signed by the Borrower. Each such telephonic and
written Revolving Borrowing Request shall specify the following information in
compliance with Section 2.02:
------------
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
Credit Agreement
----------------
-21-
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.07.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Revolving Borrowing, then
the Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Revolving Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender
of the details thereof and of the amount of such Lender's Loan to be made as
part of the requested Borrowing.
SECTION 2.04. Competitive Bid Procedure.
-------------------------
(a) Requests for Bids by the Borrower. Subject to the terms and
---------------------------------
conditions set forth herein, from time to time during the Availability Period
the Borrower may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans; provided
--------
that (x) the sum of the total Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans at any time shall not exceed
the total Commitments and (y) the aggregate principal amount of outstanding
Competitive Loans at any time shall not exceed 50% of the aggregate amount of
the then existing Commitments. To request Competitive Bids, the Borrower shall
notify the Administrative Agent of such request by telephone, in the case of a
Eurodollar Borrowing, not later than 1:00 p.m., New York City time, four
Business Days before the date of the proposed Borrowing; provided that the
Borrower may submit up to (but not more than) one (1) Competitive Bid Request
within any thirty day period, unless any and all such previous Competitive Bid
Requests shall have been withdrawn or all Competitive Bids received in response
thereto rejected. Each such telephonic Competitive Bid Request shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Competitive Bid Request in the form of Exhibit K (or such other form
---------
approved by the Administrative Agent) and signed by the Borrower. Each such
telephonic and written Competitive Bid Request shall specify the following
information in compliance with Section 2.02:
------------
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) the Interest Period to be applicable to such Borrowing,
which shall be a period contemplated by the definition of the term
"Interest Period", provided that an Interest Period of six months shall not
be available under a Competitive Loan; and
(iv) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.07.
------------
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Making of Bids by Lenders. Each Lender may (but shall not have any
-------------------------
obligation to) make one or more Competitive Bids to the Borrower in response to
a Competitive Bid Request. Each Competitive Bid by a Lender must be in a form
approved by the Administrative Agent and must be received by the Administrative
Agent by telecopy, in the case of a Eurodollar Competitive Borrowing, not later
than 12:00 noon, New York City time, three Business Days before the proposed
date of such Competitive Borrowing. Competitive Bids that do not conform
substantially to the form approved by the Administrative Agent may be rejected
by the Administrative Agent, and the Administrative Agent shall notify the
applicable Lender of such rejection as promptly as practicable. Each Competitive
Bid shall specify (i) the principal amount (which shall be a minimum of
$5,000,000 and an integral multiple of $1,000,000 and which may equal the entire
principal amount of the Competitive Borrowing requested by the Borrower) of the
Competitive Loan or Loans that the Lender is willing to make, (ii) the
Competitive Bid Rate or Competitive Bid Rates at which the Lender is prepared to
make such Loan or Loans (expressed as a percentage rate per annum in the form of
a decimal to no more than four decimal places) and (iii) the Interest Period
applicable to each such Loan and the last day thereof.
Credit Agreement
----------------
-22-
(c) Notification of Bids by Administrative Agent. The Administrative
--------------------------------------------
Agent shall promptly notify the Borrower by telecopy of the Competitive Bid Rate
and the principal amount specified in each Competitive Bid, the applicable
Interest Period(s) and the identity of the Lender that shall have made such
Competitive Bid.
(d) Acceptance of Bids by the Borrower. Subject only to the provisions
----------------------------------
of this paragraph, the Borrower may accept or reject any Competitive Bid. The
Borrower shall notify the Administrative Agent by telephone, confirmed by
telecopy in a form approved by the Administrative Agent, whether and to what
extent it has decided to accept or reject each Competitive Bid, in the case of a
Eurodollar Competitive Borrowing, not later than 1:30 p.m., New York City time,
three Business Days before the date of the proposed Competitive Borrowing;
provided that (i) the failure of the Borrower to give such notice shall be
deemed to be a rejection of each Competitive Bid, (ii) the Borrower shall not
accept a Competitive Bid made at a particular Competitive Bid Rate if the
Borrower rejects a Competitive Bid made at a lower Competitive Bid Rate, (iii)
the aggregate amount of the Competitive Bids accepted by the Borrower shall not
exceed the aggregate amount of the requested Competitive Borrowing specified in
the related Competitive Bid Request, (iv) to the extent necessary to comply with
clause (iii) of this proviso, the Borrower may accept Competitive Bids at the
------------
same Competitive Bid Rate in part, which acceptance, in the case of multiple
Competitive Bids at such Competitive Bid Rate, shall be made pro rata in
accordance with the amount of each such Competitive Bid, and (v) except pursuant
to clause (iv) above, no Competitive Bid shall be accepted for a Competitive
-----------
Loan unless such Competitive Loan is in a minimum principal amount of $5,000,000
and an integral multiple of $1,000,000; provided further that if a Competitive
Loan must be in an amount less than $5,000,000 because of the provisions of
clause (iv) above, such Competitive Loan may be for a minimum of $1,000,000 or
-----------
any integral multiple thereof, and in calculating the pro rata allocation of
acceptances of portions of multiple Competitive Bids at a particular Competitive
Bid Rate pursuant to clause (iv) the amounts shall be rounded to integral
-----------
multiples of $1,000,000 in a manner determined by the Borrower. A notice given
by the Borrower pursuant to this paragraph shall be irrevocable.
(e) Notification of Acceptances by the Administrative Agent. The
-------------------------------------------------------
Administrative Agent shall promptly notify each bidding Lender by telecopy
whether or not its Competitive Bid has been accepted (and, if so, the amount and
Competitive Bid Rate so accepted), and each successful bidder will thereupon
become bound, subject to the terms and conditions hereof, to make the
Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) Bids by the Administrative Agent. If the Administrative Agent
--------------------------------
shall elect to submit a Competitive Bid in its capacity as a Lender, it shall
submit such Competitive Bid directly to the Borrower at least one quarter of an
hour earlier than the time by which the other Lenders are required to submit
their Competitive Bids to the Administrative Agent pursuant to paragraph (b) of
-------------
this Section.
(g) Funding of Competitive Loans. Any Lender whose offer to make any
----------------------------
Competitive Loan has been accepted in accordance with the terms and conditions
of this Section 2.03 shall, not later than 12:00 noon., New York City time, on
the date specified for the making of such Loan, make available the amount of
such Loan to the Administrative Agent as specified by the Administrative Agent,
in immediately available funds, for account of the Borrower. The amount so
received by the Administrative Agent shall, subject to the terms and conditions
of this Agreement, be made available to the Borrower by 1:00 p.m., New York City
time, on such date by depositing the same, in immediately available funds, in an
account of the Borrower maintained with the Administrative Agent in New York
City and designated by the Borrower at the time of its acceptance of a
Competitive Bid.
SECTION 2.05. [Intentionally Deleted]
SECTION 2.06. Letters of Credit.
-----------------
(a) General. Subject to the terms and conditions set forth herein, the
-------
Borrower may request the issuance of Letters of Credit for its own account, in a
form reasonably acceptable to the Administrative Agent and the Issuing Lender,
at any time and from time to time during the Availability Period. In the event
of any inconsistency between the terms and conditions of this Agreement and the
terms and conditions of any form of letter of credit application or other
agreement submitted by the Borrower to, or entered into by the Borrower with,
the Issuing Lender relating to any Letter of Credit, the terms and conditions of
this Agreement shall control. Letters of
Credit Agreement
----------------
-23-
Credit issued hereunder shall constitute utilization of the Commitments.
(b) Notice of Issuance, Amendment, Renewal or Extension. To request
---------------------------------------------------
the issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or
transmit by electronic communication, if arrangements for doing so have been
approved by the Issuing Lender) to the Issuing Lender and the Administrative
Agent (reasonably in advance of the requested date of issuance, amendment,
renewal or extension) a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, and
specifying the date of issuance, amendment, renewal or extension (which shall be
a Business Day), the date on which such Letter of Credit is to expire (which
shall comply with paragraph (d) of this Section), the amount of such Letter of
-------------
Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter
of Credit. If requested by the Issuing Lender, the Borrower also shall submit a
letter of credit application on the Issuing Lender's standard form in connection
with any request for a Letter of Credit.
(c) Limitations on Amounts. A Letter of Credit shall be issued,
----------------------
amended, renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrower shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the aggregate LC Exposure shall not exceed $30,000,000, (ii) the
sum of the total Revolving Credit Exposures plus the aggregate principal amount
of outstanding Competitive Loans shall not exceed the total Commitments and
(iii) the minimum face amount of a Letter of Credit shall be $250,000.
(d) Expiration Date. Each Letter of Credit shall expire at or prior to
---------------
the close of business on the earlier of (i) the date one year after the date of
the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) unless otherwise
consented to by the Administrative Agent and the Issuing Lender and (ii) the
date that is ten Business Days prior to the Maturity Date.
(e) Participations. By the issuance of a Letter of Credit (or an
--------------
amendment to a Letter of Credit increasing the amount thereof), and without any
further action on the part of the Issuing Lender or the Lenders, the Issuing
Lender hereby grants to each Lender, and each Lender hereby acquires from the
Issuing Lender, a participation in such Letter of Credit equal to such Lender's
Applicable Percentage of the aggregate amount available to be drawn under such
Letter of Credit. In consideration and in furtherance of the foregoing, each
Lender hereby absolutely and unconditionally agrees to pay to the Administrative
Agent, for the account of the Issuing Lender, such Lender's Applicable
Percentage of each LC Disbursement made by the Issuing Lender (to the extent not
reimbursed by the Borrower in accordance with clause (f) of this Section)
----------
promptly upon the request of the Issuing Lender at any time from the time of
such LC Disbursement until such LC Disbursement is reimbursed by the Borrower or
at any time after any reimbursement payment is required to be refunded to the
Borrower for any reason. Each Lender acknowledges and agrees that its obligation
to acquire participations pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(f) Reimbursement. If the Issuing Lender shall make any LC
-------------
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such
LC Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 3:00 p.m., New York City time, on the date that such
LC Disbursement is made, if the Borrower shall have received notice of such LC
Disbursement prior to 1:00 p.m., New York City time, on such date, or, if such
notice has not been received by the Borrower prior to such time on such date,
then not later than 3:00 p.m., New York City time, on (i) the Business Day that
the Borrower receives such notice, if such notice is received prior to 1:00
p.m., New York City time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Borrower receives such notice, if such
notice is not received prior to such time on the day of receipt; provided that,
--------
if such LC Disbursement is not less than $3,000,000, the Borrower may, subject
to the conditions to borrowing set forth herein, request in accordance with
Section 2.03 or 2.05 that such payment be financed with an ABR Revolving
------------ ----
Borrowing in an equivalent amount and, to the extent so financed, the Borrower's
obligation to make such payment shall be discharged and replaced by the
resulting ABR Revolving Borrowing. If the Borrower fails to make such payment
when due, the Administrative Agent shall notify each Lender of the applicable LC
Disbursement, the payment then due from the Borrower in respect thereof and
Credit Agreement
----------------
-24-
such Lender's Applicable Percentage thereof. Promptly following receipt of such
notice, each Lender shall pay to the Administrative Agent its Applicable
Percentage of the payment then due from the Borrower, in the same manner as
provided in Section 2.07 with respect to Loans made by such Lender (and Section
------------ -------
2.07 shall apply, mutatis mutandis, to the payment obligations of the Lenders),
---- ----------------
and the Administrative Agent shall promptly pay to the Issuing Lender the
amounts so received by it from the Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the Issuing
Lender or, to the extent that Lenders have made payments pursuant to this
paragraph to reimburse the Issuing Lender, then to such Lenders and the Issuing
Lender as their interests may appear. Any payment made by a Lender pursuant to
this paragraph to reimburse the Issuing Lender for any LC Disbursement (other
than the funding of ABR Revolving Loans as contemplated above) shall not
constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.
(g) Obligations Absolute. The Borrower's obligation to reimburse LC
--------------------
Disbursements as provided in paragraph (f) of this Section shall be absolute,
-------------
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Lender under a Letter of
Credit against presentation of a draft or other document that does not comply
strictly with the terms of such Letter of Credit, or (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of setoff against, the Borrower's obligations
hereunder. Neither the Administrative Agent, the Lenders nor the Issuing Lender,
nor any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit
or any payment or failure to make any payment thereunder (irrespective of any of
the circumstances referred to in the preceding sentence), or any error,
omission, interruption, loss or delay in transmission or delivery of any draft,
notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond
the control of the Issuing Lender; provided that the foregoing shall not be
construed to excuse the Issuing Lender from liability to the Borrower to the
extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by the Issuing Lender's
failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The parties
hereto expressly agree that, in the absence of gross negligence or willful
misconduct on the part of the Issuing Lender (as finally determined by a court
of competent jurisdiction), the Issuing Lender shall be deemed to have exercised
care in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be in substantial compliance
with the terms of a Letter of Credit, the Issuing Lender may, in its sole
discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(h) Disbursement Procedures. The Issuing Lender shall, promptly
-----------------------
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Lender shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Lender has made or
will make an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Lender and the Lenders with respect to any such LC
Disbursement.
(i) Interim Interest. If the Issuing Lender shall make any LC
----------------
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans;
provided that, if the Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (f) of this Section, then Section 2.13(d) shall apply.
------------- ---------------
Interest accrued pursuant to this paragraph shall be for the account of the
Issuing Lender, except that interest accrued on and after the date of payment by
any Lender pursuant to paragraph (f) of this Section to reimburse the Issuing
-------------
Lender shall be for the account of such Lender to
Credit Agreement
----------------
-25-
the extent of such payment.
(j) Replacement of the Issuing Lender. The Issuing Lender may be
---------------------------------
replaced at any time by written agreement among the Borrower, the Administrative
Agent, the replaced Issuing Lender and the successor Issuing Lender. The
Administrative Agent shall notify the Lenders of any such replacement of the
Issuing Lender. At the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for account of the replaced Issuing
Lender pursuant to Section 2.12(b). From and after the effective date of any
---------------
such replacement, (i) the successor Issuing Lender shall have all the rights and
obligations of the Issuing Lender under this Agreement with respect to Letters
of Credit to be issued thereafter and (ii) references herein to the term
"Issuing Lender" shall be deemed to refer to such successor or to any previous
Issuing Lender, or to such successor and all previous Issuing Lenders, as the
context shall require. After the replacement of an Issuing Lender hereunder, the
replaced Issuing Lender shall remain a party hereto and shall continue to have
all the rights and obligations of an Issuing Lender under this Agreement with
respect to Letters of Credit issued by it prior to such replacement, but shall
not be required to issue additional Letters of Credit.
(k) Cash Collateralization. If any Event of Default shall occur and be
----------------------
continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Lenders with LC Exposure representing greater than 66.66%
of the total LC Exposure) demanding the deposit of cash collateral pursuant to
this paragraph, the Borrower shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
Lenders, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided that the obligation to deposit
--------
such cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any kind,
upon the occurrence of any Event of Default with respect to the Borrower
described in clause (i) or (j) of Article VII. Such deposit shall be held by the
---------- --- -----------
Administrative Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement. The Administrative Agent shall
have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option and sole
discretion of the Administrative Agent and at the Borrower's risk and expense,
such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be
applied by the Administrative Agent to reimburse the Issuing Lender for LC
Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrower for the LC Exposure at such time or, if the maturity of the Loans
has been accelerated (but subject to the consent of Lenders with LC Exposure
representing greater than 66.66% of the total LC Exposure), be applied to
satisfy other obligations of the Borrower under this Agreement. If the Borrower
is required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower within three Business Days after
all Events of Default have been cured or waived. The Borrower shall,
concurrently with the deposit of the cash collateral, deliver to the
Administrative Agent such documents and agreements as shall be reasonably
required by the Administrative Agent in order to perfect a first priority
security interest in such cash collateral, duly executed by the Borrower and in
favor of the Administrative Agent (on behalf of the Lenders).
SECTION 2.07. Funding of Borrowings.
---------------------
(a) Funding by Lenders. Each Lender shall make each Loan to be made by
------------------
it hereunder on the proposed date thereof by wire transfer of immediately
available funds by 12:00 noon, New York City time, to the account of the
Administrative Agent most recently designated by it for such purpose by notice
to the Lenders. The Administrative Agent will make such Loans available to the
Borrower by promptly crediting the amounts so received, in like funds, to an
account of the Borrower maintained with the Administrative Agent in New York
City and designated by the Borrower in the applicable Revolving Borrowing
Request or Competitive Bid Request; provided that ABR Revolving Loans made to
finance the reimbursement of an LC Disbursement as provided in Section 2.06(f)
---------------
shall be remitted by the Administrative Agent to the Issuing Lender.
(b) Presumption by the Administrative Agent. Unless the Administrative
---------------------------------------
Agent shall have received notice from a Lender prior to the proposed date of any
Borrowing that such Lender will not make available to the Administrative Agent
such Lender's share of such Borrowing, the Administrative Agent may assume that
such Lender has made such share available on such date in accordance with
paragraph (a) of this Section and may, in
-------------
Credit Agreement
----------------
-26-
reliance upon such assumption, make available to the Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of the
applicable Borrowing available to the Administrative Agent, then the applicable
Lender and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to
but excluding the date of payment to the Administrative Agent, at (i) in the
case of such Lender, the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation or (ii) in the case of the Borrower, the interest rate
applicable to ABR Loans. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender's Loan included in such
Borrowing.
SECTION 2.08. Interest Elections.
------------------
(a) Elections by the Borrower for Revolving Borrowings. Each Revolving
--------------------------------------------------
Borrowing initially shall be of the Type specified in the applicable Revolving
Borrowing Request and, in the case of a Eurodollar Revolving Borrowing, shall
have an initial Interest Period as specified in such Revolving Borrowing
Request. Thereafter, the Borrower may elect to convert such Borrowing to a
different Type or to continue such Borrowing as a Borrowing of the same Type
and, in the case of a Eurodollar Revolving Borrowing, may elect Interest Periods
therefor, all as provided in this Section. The Borrower may elect different
options with respect to different portions of the affected Borrowing, in which
case each such portion shall be allocated ratably among the Lenders holding the
Loans comprising such Borrowing, and the Loans comprising each such portion
shall be considered a separate Borrowing. This Section shall not apply to
Competitive Borrowings, which may not be converted or continued.
(b) Notice of Elections. To make an election pursuant to this Section,
-------------------
the Borrower shall notify the Administrative Agent of such election by telephone
by the time that a Revolving Borrowing Request would be required under Section
-------
2.03 if the Borrower were requesting a Revolving Borrowing of the Type resulting
----
from such election to be made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Interest Election Request in the form set forth in Exhibit D (or such other form
---------
approved by the Administrative Agent) and signed by the Borrower.
(c) Information in Interest Election Requests. Each telephonic and
-----------------------------------------
written Interest Election Request shall specify the following information in
compliance with Section 2.02:
------------
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to each
resulting Borrowing (in which case the information to be specified pursuant
to clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing
or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Notice by the Administrative Agent to Lenders. Promptly following
---------------------------------------------
receipt of an Interest Election Request, the Administrative Agent shall advise
each Lender of the details thereof and of such Lender's portion of each
resulting Borrowing.
Credit Agreement
----------------
-27-
(e) Failure to Elect; Events of Default. If the Borrower fails to
-----------------------------------
deliver a timely Interest Election Request with respect to a Eurodollar
Revolving Borrowing prior to the end of the Interest Period applicable thereto,
then, unless such Borrowing is repaid as provided herein, at the end of such
Interest Period such Borrowing shall be converted to an ABR Borrowing.
Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the Administrative Agent, at the request of the
Required Lenders, so notifies the Borrower, then, so long as an Event of Default
is continuing (i) no outstanding Revolving Borrowing may be converted to or
continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Revolving Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.
SECTION 2.09. Termination, Reduction and Extension of the Commitments.
-------------------------------------------------------
(a) Scheduled Termination. Unless previously terminated, the
---------------------
Commitments shall terminate on the Maturity Date.
(b) Voluntary Termination or Reduction. The Borrower may at any time
----------------------------------
terminate, or from time to time reduce, the Commitments; provided that (i) each
reduction of the Commitments shall be in an amount that is an integral multiple
of $1,000,000 and not less than $10,000,000, (ii) the Borrower shall not
terminate or reduce the Commitments if, after giving effect to any concurrent
prepayment of the Loans in accordance with Section 2.11, the sum of the total
Revolving Credit Exposures plus the aggregate principal amount of outstanding
Competitive Loans would exceed the total Commitments and (iii) terminations
and/or reductions may not be made more than one (1) time in any given calendar
quarter.
(c) Notice of Voluntary Termination or Reduction. The Borrower shall
--------------------------------------------
notify the Administrative Agent of any election to terminate or reduce the
Commitments under paragraph (b) of this Section at least five Business Days
-------------
prior to the effective date of such termination or reduction, specifying such
election and the effective date thereof. Promptly following receipt of any
notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each notice delivered by the Borrower pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Commitments delivered
by the Borrower may state that such notice is conditioned upon the effectiveness
of a particular transaction or other credit facilities, in which case such
notice may be revoked by the Borrower (by notice to the Administrative Agent on
or prior to the specified effective date) if such condition is not satisfied.
(d) Effect of Termination or Reduction. Any termination or reduction
----------------------------------
of the Commitments shall be permanent. Each reduction of the Commitments shall
be made ratably among the Lenders in accordance with their respective
Commitments.
(e) Extension of Maturity Date. Subject to the provisions of this
--------------------------
Section 2.09(e), the Borrower shall have one option to extend the Maturity Date
---------------
for one (1) year to November 7, 2006, subject to the satisfaction of each of the
following conditions:
(i) The Borrower shall notify the Administrative Agent of its
exercise of the applicable option at least 90 days, but not more than 180
days, prior to the originally scheduled Maturity Date;
(ii) No Default or Event of Default shall have occurred and be
continuing at the time of giving such notice pursuant to clause (i) above
or on the originally scheduled Maturity Date;
(iii) unless otherwise disclosed to and approved by the Required
Lenders, the representations and warranties made by the Borrower in the
Loan Documents shall have been true and correct in all material respects
when made and shall also be true and correct in all material respects on
the originally scheduled Maturity Date (except, if any such representation
or warranty is expressly stated to have been made as of a specific date, as
of such specific date);
(iv) the Borrower shall have delivered updates to the
Administrative Agent of all the Schedules referred to in Article III hereof
-----------
and such updated Schedules shall be acceptable to Administrative
Credit Agreement
----------------
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Agent in its reasonable judgment;
(v) At the time of the exercise of the extension hereunder, the
Borrower shall have delivered (A) a Compliance Certificate demonstrating
that the Borrower is in compliance with the covenants set forth in Article
-------
VI as of the end of the most recent Measuring Period ending at least
--
forty-five days prior to such date and (B) a certificate of a Financial
Officer of Borrower certifying that such Financial Officer has no knowledge
of any change since the end of such applicable Measuring Period that would
cause Borrower to not be in compliance with the covenants set forth in
Article VI;
(vi) The Borrower shall have paid to the Administrative Agent
(for the ratable benefit of the Lenders) a non-refundable extension fee
equal to .25% of the aggregate amount of the Revolving Credit Exposure and
unused Commitments of the Lenders prior to the originally scheduled
Maturity Date; and
(vii) The Borrower shall have paid all reasonable out-of-pocket
costs and expenses incurred by the Administrative Agent and all reasonable
fees and expenses paid to third party consultants (including reasonable
attorneys' fees and expenses) by Administrative Agent in connection with
such extension.
SECTION 2.10. Repayment of Loans; Evidence of Debt.
------------------------------------
(a) Repayment. The Borrower hereby unconditionally promises to pay the
---------
Loans as follows:
(i) to the Administrative Agent for the account of each Lender
the then unpaid principal amount of each Revolving Loan on the Maturity
Date, and
(ii) to the Administrative Agent for the account of each
respective Lender the then unpaid principal amount of each Competitive Loan
of such Lender on the last day of the Interest Period applicable to such
Loan.
(b) Manner of Payment. Prior to any repayment or prepayment of any
-----------------
Borrowings hereunder, the Borrower shall select the Borrowing or Borrowings to
be paid and shall notify the Administrative Agent by telephone (confirmed by
telecopy) of such selection not later than 2:00 p.m., New York City time, three
Business Days before the scheduled date of such repayment in the case of a
Eurodollar Borrowing and one Business Day before the scheduled date of such
repayment in the case of an ABR Borrowing; provided that each repayment of
Borrowings shall be applied to repay any outstanding ABR Borrowings before any
other Borrowings. If the Borrower fails to make a timely selection of the
Borrowing or Borrowings to be repaid or prepaid, such payment shall be applied,
first, to pay any outstanding ABR Borrowings and, second, to other Borrowings in
the order of the remaining duration of their respective Interest Periods (the
Borrowing with the shortest remaining Interest Period to be repaid first), and
for these purposes, Competitive Loans shall be deemed to be in the same Class as
Loans. Each payment of a Revolving Borrowing shall be applied ratably to the
Loans included in such Borrowing.
(c) Maintenance of Loan Accounts by Lenders. Each Lender shall
---------------------------------------
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender, including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.
(d) Maintenance of Loan Accounts by the Administrative Agent. The
--------------------------------------------------------
Administrative Agent shall maintain accounts in which it shall record (i) the
amount of each Loan made hereunder, the Class and Type thereof and each Interest
Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder
and (iii) the amount of any sum received by the Administrative Agent hereunder
for the account of the Lenders and each Lender's share thereof.
(e) Effect of Entries. The entries made in the accounts maintained
-----------------
pursuant to paragraph (c) or (d) of this Section shall be prima facie evidence
------------- ---
of the existence and amounts of the obligations recorded therein;
Credit Agreement
----------------
-29-
provided that the failure of any Lender or the Administrative Agent to maintain
such accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this
Agreement.
(f) Promissory Notes. Any Lender may request that Loans made by it be
----------------
evidenced by promissory notes. In such cases, the Loans of such Lender shall be
evidenced as follows:
(i) Revolving Notes. The Revolving Loans made by each Lender
---------------
shall be evidenced by a single promissory note of the Borrower
substantially in the form of Exhibit B-1, dated the date hereof, payable to
-----------
such Lender in a principal amount equal to the amount of its Commitment as
originally in effect and otherwise duly completed.
(ii) Competitive Notes. The Competitive Loans made by any
-----------------
Lender shall be evidenced by a single promissory note of the Borrower
substantially in the form of Exhibit B-2, dated the date hereof, payable to
-----------
such Lender in an amount equal to 50% of the aggregate amount of the
Commitments and otherwise duly completed.
(iii) Substitution, Exchange and Subdivision of Notes. No
-----------------------------------------------
Lender shall be entitled to have its Notes substituted or exchanged for any
reason, or subdivided for promissory notes of lesser denominations, except
in connection with a permitted assignment of all or any portion of such
Lender's relevant Commitment, Loans and Note pursuant to Section 9.04 (and,
------------
if requested by any Lender in connection with such permitted assignment,
the Borrower agrees to so exchange any Note).
SECTION 2.11. Prepayment of Loans.
-------------------
(a) Optional Prepayments. The Borrower shall have the right at any
--------------------
time and from time to time to prepay any Borrowing in whole or in part, subject
to prior notice in accordance with the requirements of this Section; provided
that the Borrower shall not have the right to prepay any Competitive Loan
without the prior consent of the Lender thereof.
(b) Mandatory Prepayments and Commitment Reductions. The Borrower will
-----------------------------------------------
prepay the Loans (and/or provide cover for LC Exposure as specified in Section
-------
2.06(k)), and/or the Commitments shall be subject to automatic reduction, as
-------
follows:
(i) Non-Compliance with Maximum Unencumbered Asset Value Ratio.
----------------------------------------------------------
If, at any time, the Unencumbered Asset Value Ratio exceeds 60%, then the
Borrower shall, within five Business Days after such occurrence, prepay the
Loans (and/or provide cover for LC Exposure as specified in Section
-------
2.06(k)), and/or the Commitments shall be subject to automatic reduction,
-------
in an aggregate amount to the extent necessary to achieve compliance with
the maximum Unencumbered Asset Value covenant set forth in Section 6.07(h),
---------------
such prepayment and/or reduction to be effected in each case in the manner
and to the extent specified in clause (ii) of this paragraph.
-----------
(ii) Application. Prepayments and/or reductions of Commitments
-----------
pursuant to this paragraph shall be applied to reduce the aggregate amount
of the Commitments (and to the extent that, after giving effect to such
reduction, the sum of the total Revolving Credit Exposures plus the
aggregate principal amount of outstanding Competitive Loans would exceed
the Commitments, the Borrower shall, first, prepay Revolving Loans, second,
provide cover for LC Exposure as specified in Section 2.06(k) and third,
---------------
prepay Competitive Loans in an aggregate amount equal to such excess).
(c) Notices, Etc. The Borrower shall notify the Administrative Agent
------------
by telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case
of prepayment of a Eurodollar Revolving Borrowing, not later than 2:00 p.m., New
York City time, three Business Days before the date of prepayment or (ii) in the
case of prepayment of an ABR Revolving Borrowing, not later than 2:00 p.m., New
York City time, one Business Day before the date of prepayment. Each such notice
shall be irrevocable and shall specify the prepayment date, the principal amount
of each Borrowing or portion thereof to be prepaid and, in the case of a
mandatory prepayment, a
Credit Agreement
----------------
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reasonably detailed calculation of the amount of such prepayment; provided that,
if a notice of prepayment is given in connection with a conditional notice of
termination of the Commitments as contemplated by Section 2.09, then such notice
------------
of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.09. Promptly following receipt of any such notice
------------
relating to a Revolving Borrowing, the Administrative Agent shall advise the
Lenders of the contents thereof. Each partial prepayment of any Borrowing shall
be in an amount that would be permitted in the case of an advance of a Revolving
Borrowing of the same Type as provided in Section 2.02, except as necessary to
-------------
apply fully the required amount of a mandatory prepayment. Each prepayment of a
Revolving Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing. Prepayments shall be accompanied by (A) accrued interest to
the extent required by Section 2.13 and (B) any payments due pursuant to Section
------------ -------
2.16 and shall be made in the manner specified in Section 2.10(b).
---- ---------------
SECTION 2.12. Fees.
----
(a) Facility Fee. The Borrower agrees to pay to the Administrative
------------
Agent for the account of each Lender a facility fee, which shall accrue at the
Applicable Rate on the daily amount of the Commitment of such Lender (whether
used or unused) during the period from and including the Effective Date to but
excluding the date on which such Commitment terminates; provided that, if such
--------
Lender continues to have any Revolving Credit Exposure after its Commitment
terminates, then such facility fee shall continue to accrue on the daily amount
of such Lender's Revolving Credit Exposure from and including the date on which
its Commitment terminates to but excluding the date on which such Lender ceases
to have any Revolving Credit Exposure. Accrued facility fees shall be payable in
arrears on each Quarterly Date and on the date on which the Commitments
terminate, commencing on the first such date to occur after the date hereof;
provided that any facility fees accruing after the date on which the Commitments
--------
terminate shall be payable on demand. All facility fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).
(b) Letter of Credit Fees. The Borrower agrees to pay (i) to the
---------------------
Administrative Agent for account of each Lender a participation fee with respect
to its participations in Letters of Credit, which shall accrue at a rate per
annum equal to the same Applicable Rate used to determine the interest rate
applicable to Eurodollar Revolving Loans (plus 4% during the continuance of an
Event of Default) on the average daily amount of such Lender's LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the
later of the date on which such Lender's Commitment terminates and the date on
which such Lender ceases to have any LC Exposure, and (ii) to the Issuing Lender
a fronting fee, which shall accrue at the rate or rates per annum separately
agreed upon between the Borrower and the Issuing Lender on the average daily
amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date of termination of the
Commitments and the date on which there ceases to be any LC Exposure, as well as
the Issuing Lender's standard fees with respect to the issuance, amendment,
renewal or extension of any Letter of Credit or processing of drawings
thereunder. Participation fees and fronting fees accrued through and including
each Quarterly Date shall be payable on such Quarterly Date, commencing on the
first such date to occur after the Effective Date; provided that all such fees
shall be payable on the date on which the Commitments terminate and any such
fees accruing after the date on which the Commitments terminate shall be payable
on demand. Any other fees payable to the Issuing Lender pursuant to this
paragraph shall be payable within 10 days after demand. All participation fees
and fronting fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day).
(c) Administrative Agent Fees. The Borrower agrees to pay to the
-------------------------
Administrative Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between the Borrower and the Administrative
Agent.
(d) Payment of Fees. All fees payable hereunder shall be paid on the
---------------
dates due, in immediately available funds, to the Administrative Agent (or to
the Issuing Lender, in the case of fees payable to it) for distribution, in the
case of facility fees and participation fees, to the Lenders entitled thereto.
Fees paid shall not be refundable under any circumstances.
Credit Agreement
----------------
-31-
SECTION 2.13. Interest.
--------
(a) ABR Loans. The Loans comprising each ABR Borrowing shall bear
---------
interest at the Alternate Base Rate plus the Applicable Rate.
(b) Eurodollar Loans. The Loans comprising each Eurodollar Borrowing
----------------
shall bear interest (i) in the case of a Eurodollar Revolving Loan, at the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Rate, or (ii) in the case of a Eurodollar Competitive Borrowing, at
the LIBO Rate for the Interest Period in effect for such Borrowing plus (or
minus, as applicable) the Margin applicable to such Loan.
(c) Default Interest. Notwithstanding the foregoing, if any principal
----------------
of or interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid within 5 days of when due (except default interest shall
accrue immediately with respect to (x) principal payment from the date when such
payment is due and (y) any payments that are not made on the Maturity Date),
whether upon acceleration or otherwise, such overdue amount shall bear interest,
after as well as before judgment, at a rate per annum equal to (i) in the case
of overdue principal of any Loan, 4% plus the rate otherwise applicable to such
Loan as provided in the preceding paragraphs of this Section or (ii) in the case
of any other amount, 4% plus the rate applicable to ABR Loans as provided in
paragraph (a) of this Section.
-------------
(d) Payment of Interest. Accrued interest on each Loan shall be
-------------------
payable in arrears on each Interest Payment Date for such Loan and, in the case
of Revolving Loans and Competitive Loans, upon termination of the Commitments;
provided that (i) interest accrued pursuant to paragraph (c) of this Section
-------------
shall be payable on demand, (ii) in the event of any repayment or prepayment of
any Loan (other than a prepayment of an ABR Revolving Loan prior to the end of
the Availability Period), accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and (iii)
in the event of any conversion of any Eurodollar Revolving Loan prior to the end
of the current Interest Period therefor, accrued interest on such Loan shall be
payable on the effective date of such conversion.
(e) Computation. All interest hereunder shall be computed on the basis
-----------
of a year of 360 days, except that interest computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on the Prime
Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). The applicable Alternate
Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.14. Alternate Rate of Interest. If prior to the commencement of
--------------------------
the Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable,
for such Interest Period;
(b) the Administrative Agent is advised by the Required Lenders (or,
in the case of a Eurodollar Competitive Loan, the Lender that is required to
make such Loan) that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for
such Interest Period will not adequately and fairly reflect the cost to such
Lenders (or Lender) of making or maintaining their Loans (or its Loan) included
in such Borrowing for such Interest Period; or
(c) the Administrative Agent is advised by a Lender that it has become
unlawful for such Lender to honor its obligation to make or maintain Eurodollar
Loans hereunder;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as a Eurodollar Revolving Borrowing
shall be ineffective (in the case of clause (c) above, only as to the affected
----------
Lender), (ii) if any Revolving
Credit Agreement
----------------
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Borrowing Request requests a Eurodollar Revolving Borrowing, such Borrowing
shall be made as an ABR Revolving Borrowing (in the case of clause (c) above,
----------
only as to the affected Lender), (iii) any request by the Borrower for a
Eurodollar Competitive Borrowing shall be ineffective; provided that (A) if the
circumstances giving rise to such notice do not affect all the Lenders, then
requests by the Borrower for Eurodollar Competitive Borrowings may be made to
Lenders that are not affected thereby and (B) if the circumstances giving rise
to such notice affect only one Type of Borrowings, then the other Types of
Borrowings shall be permitted and (iv) if in accordance with clause (c) above
----------
any Lender determines that it is no longer lawful for such Lender or its
applicable lending office (subject to Section 2.19(a)) to maintain any existing
---------------
Eurodollar Loans, or to continue to charge interest rates based upon the LIBO
Rate, then, on notice thereof by such Lender to the Borrower through the
Administrative Agent, any obligation of such Lender to continue Eurodollar Loans
shall be suspended until such Lender notifies the Administrative Agent and the
Borrower that the circumstances giving rise to such determination no longer
exist and, in such event, all Eurodollar Loans of such Lender shall be converted
to ABR Loans, either on the last day of the Interest Period thereof, if such
Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day,
or immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans.
SECTION 2.15. Increased Costs.
---------------
(a) Increased Costs Generally. If any Change in Law shall:
-------------------------
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate) or the Issuing Lender; or
(ii) impose on any Lender or the Issuing Lender or the London
interbank market any other condition affecting this Agreement or Eurodollar
Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lenders of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Lender of participating in, issuing or maintaining any Letter of Credit
or to reduce the amount of any sum received or receivable by such Lender or the
Issuing Lender hereunder (whether of principal, interest or otherwise), then, in
accordance with and subject to Section 2.15(c), the Borrower will promptly on
---------------
demand pay to such Lender or the Issuing Lender, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing
Lender, as the case may be, for such additional costs incurred or reduction
suffered.
(b) Capital Requirements. If any Lender or the Issuing Lender
--------------------
determines that any Change in Law regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender's or the Issuing
Lender's capital or on the capital of such Lender's or the Issuing Lender's
holding company, if any, as a consequence of this Agreement or the Loans made
by, or participations in Letters of Credit held by, such Lender, or the Letters
of Credit issued by the Issuing Lender, to a level below that which such Lender
or the Issuing Lender or such Lender's or the Issuing Lender's holding company
could have achieved but for such Change in Law (taking into consideration such
Lender's or the Issuing Lender's policies and the policies of such Lender's or
the Issuing Lender's holding company with respect to capital adequacy), then, in
accordance with and subject to Section 2.15(c), from time to time the Borrower
---------------
will promptly on demand pay to such Lender or the Issuing Lender, as the case
may be, such additional amount or amounts as will compensate such Lender or the
Issuing Lender or such Lender's or the Issuing Lender's holding company for any
such reduction suffered.
(c) Certificates from Lenders. A certificate of a Lender or the
-------------------------
Issuing Lender setting forth, in reasonable detail, the amount or amounts
necessary to compensate such Lender or the Issuing Lender or its holding
company, as the case may be, as specified in paragraph (a) or (b) of this
------------- ---
Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender or the Issuing Lender, as the
case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof. No Lender or Issuing Lender shall have the right to
collect payments from the Borrower pursuant to paragraph (a) or (b) of this
------------- ---
Section unless it is the policy of such Lender or Issuing Lender, as applicable,
at the time of collection, to collect similar payments from borrowers in
connection with credit facilities similar to those made available pursuant to
this
Credit Agreement
----------------
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Agreement.
(d) Delay in Requests. Failure or delay on the part of any Lender or
-----------------
the Issuing Lender to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender's or the Issuing Lender's right to demand
such compensation; provided that the Borrower shall not be required to
compensate a Lender or the Issuing Lender pursuant to this Section for any
increased costs or reductions incurred more than 180 days prior to the date that
such Lender or the Issuing Lender, as the case may be, notifies the Borrower of
the Change in Law giving rise to such increased costs or reductions and of such
Lender's or the Issuing Lender's intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the 180-day period referred to above shall be
extended to include the period of retroactive effect thereof.
(e) Competitive Loans. Notwithstanding the foregoing provisions of
-----------------
this Section, a Lender shall not be entitled to compensation pursuant to this
Section in respect of any Competitive Loan if the Change in Law that would
otherwise entitle it to such compensation shall have been publicly announced
prior to submission of the Competitive Bid pursuant to which such Loan was made.
SECTION 2.16. Break Funding Payments. In the event of (a) the payment of
----------------------
any principal of any Eurodollar Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto, (c) the failure to borrow, convert, continue or
prepay any Eurodollar Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section
-------
2.11(c) and is revoked in accordance herewith), (d) the failure to borrow any
-------
Competitive Loan after accepting the Competitive Bid to make such Loan, or (e)
the assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.19, then, in any such event, the Borrower shall compensate each Lender
------------
for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such Loan
had such event not occurred, at the Adjusted LIBO Rate that would have been
applicable to such Loan, for the period from the date of such event to the last
day of the then current Interest Period therefor (or, in the case of a failure
to borrow, convert or continue, for the period that would have been the Interest
Period for such Loan), over (ii) the amount of interest which would accrue on
such principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the eurodollar
market. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof.
SECTION 2.17. Taxes.
-----
(a) Payments Free of Taxes. Any and all payments by or on account of
----------------------
any obligation of the Borrower hereunder or under any other Loan Document shall
be made free and clear of and without deduction for any Indemnified Taxes or
Other Taxes; provided that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or Issuing Lender (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall
pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) Payment of Other Taxes by the Borrower. In addition, the Borrower
--------------------------------------
shall pay any Other Taxes to the relevant Governmental Authority in accordance
with applicable law.
(c) Indemnification by the Borrower. The Borrower shall indemnify the
-------------------------------
Administrative Agent, each Lender and the Issuing Lender, within 10 days after
written demand therefor, for the full amount of any
Credit Agreement
----------------
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Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Lender
or the Issuing Lender, as the case may be, on or with respect to any payment by
or on account of any obligation of the Borrower hereunder (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Borrower by a Lender or the Issuing Lender, or by the
Administrative Agent on its own behalf or on behalf of a Lender or the Issuing
Lender, shall be conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of
--------------------
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) Foreign Lenders. Any Foreign Lender that is entitled to an
---------------
exemption from or reduction of withholding tax under the law of the jurisdiction
in which the Borrower is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as will
permit such payments to be made without withholding or at a reduced rate.
(f) Refunds. If the Administrative Agent or a Lender determines, in
-------
its sole discretion, that it has received a refund of any Taxes or Other Taxes
as to which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section 2.17, it shall pay
------------
over such refund to the Borrower (but only to the extent of indemnity payments
made, or additional amounts paid, by the Borrower under this Section 2.17 with
------------
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent or such Lender and without
interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund); provided, that the Borrower, upon the request of
the Administrative Agent or such Lender, agrees to repay the amount paid over to
the Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent or such Lender in
the event the Administrative Agent or such Lender is required to repay such
refund to such Governmental Authority. This Section shall not be construed to
require the Administrative Agent or any Lender to make available its tax returns
(or any other information relating to its taxes which it deems confidential) to
the Borrower or any other Person.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Setoffs.
----------------------------------------------------------
(a) Payments by the Borrower. The Borrower shall make each payment
------------------------
required to be made by it hereunder (whether of principal, interest, fees or
reimbursement of LC Disbursements, or of amounts payable under Section 2.15,
------------
2.16 or 2.17, or otherwise) or under any other Loan Document (except to the
---- ----
extent otherwise provided therein) prior to 3:00 p.m., New York City time, on
the date when due, in immediately available funds, without set off or
counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at its offices at the
Administrative Agent's Account, except as otherwise expressly provided in the
relevant Loan Document, and except payments to be made directly to the Issuing
Lender as expressly provided herein and except that payments pursuant to
Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons
------------- ---- ---- ----
entitled thereto. The Administrative Agent shall distribute any such payments
received by it for the account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment hereunder shall be due on a
day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
hereunder or under any other Loan Document (except to the extent otherwise
provided therein) shall be made in dollars.
(b) Application of Insufficient Payments. If at any time insufficient
------------------------------------
funds are received by and
Credit Agreement
----------------
-35-
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, towards
payment of principal and unreimbursed LC Disbursements then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal and unreimbursed LC Disbursements then due to such parties.
(c) Pro Rata Treatment. Except to the extent otherwise provided
------------------
herein: (i) each Revolving Borrowing shall be made from the Lenders, each
payment of commitment fee under Section 2.12 shall be made for the account of
------------
the Lenders, and each termination or reduction of the amount of the Commitments
under Section 2.09 shall be applied to the respective Commitments of the
------------
Lenders, pro rata according to the amounts of their respective Commitments; (ii)
each Revolving Borrowing shall be allocated pro rata among the Lenders according
to the amounts of their respective Commitments (in the case of the making of
Revolving Loans) or their respective Loans (in the case of conversions and
continuations of Loans); (iii) each payment or prepayment of principal of
Revolving Loans by the Borrower shall be made for account of the Lenders pro
rata in accordance with the respective unpaid principal amounts of the Revolving
Loans held by them; and (iv) each payment of interest on Revolving Loans by the
Borrower shall be made for account of the Lenders pro rata in accordance with
the amounts of interest on such Loans then due and payable to the respective
Lenders.
(d) Sharing of Payments by Lenders. If any Lender shall, by exercising
------------------------------
any right of set-off or counterclaim or otherwise, obtain payment in respect of
any principal of or interest on any of its Revolving Loans or participations in
LC Disbursements resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and participations in
LC Disbursements and accrued interest thereon then due than the proportion
received by any other Lender, then the Lender receiving such greater proportion
shall purchase (for cash at face value) participations in the Revolving Loans
and participations in LC Disbursements of other Lenders to the extent necessary
so that the benefit of all such payments shall be shared by the Lenders ratably
in accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans and participations in LC Disbursements;
provided that (i) if any such participations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations
shall be rescinded and the purchase price restored to the extent of such
recovery, without interest, and (ii) the provisions of this paragraph shall not
be construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any
of its Loans or participations in LC Disbursements to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(e) Presumptions of Payment. Unless the Administrative Agent shall
-----------------------
have received notice from the Borrower prior to the date on which any payment is
due to the Administrative Agent for the account of the Lenders or the Issuing
Lender hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on such
date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders or the Issuing Lender, as the case may be, the amount
due. In such event, if the Borrower has not in fact made such payment, then each
of the Lenders or the Issuing Lender, as the case may be, severally agrees to
repay to the Administrative Agent forthwith on demand the amount so distributed
to such Lender or the Issuing Lender with interest thereon, for each day from
and including the date such amount is distributed to it to but excluding the
date of payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(f) Certain Deductions by the Administrative Agent. If any Lender
----------------------------------------------
shall fail to make any payment required to be made by it pursuant to Section
-------
2.06(e) or (f), 2.07(b) or 2.18(e), then the Administrative Agent may, in its
------- --- ------- -------
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for account of such Lender to
satisfy such Lender's obligations under such Sections
until all such unsatisfied obligations are fully paid.
Credit Agreement
----------------
-36-
SECTION 2.19. Mitigation Obligations; Replacement of Lenders.
----------------------------------------------
(a) Designation of a Different Lending Office. If any Lender requests
-----------------------------------------
compensation under Section 2.15, or if the Borrower is required to pay any
------------
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 2.17, then such Lender shall use reasonable
------------
efforts to designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 2.15 or 2.17, as the case may be, in the future and (ii) would not
------------ ----
subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) Replacement of Lenders. If (i) any Lender is unable to make or
----------------------
maintain Eurodollar Loans pursuant to Section 2.14(c), (ii)any Lender requests
compensation under Section 2.15, (iii) the Borrower is required to pay any
------------
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 2.17, or (iv) any Lender defaults in its
------------
obligation to fund Loans hereunder, then the Borrower may, at its sole expense
and effort, upon notice to such Lender and the Administrative Agent, require
such Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in Section 9.04), all its interests,
------------
rights and obligations under this Agreement (other than any outstanding
Competitive Loans held by it) to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment);
provided that (A) the Borrower shall have received the prior written consent of
the Administrative Agent, which consent shall not unreasonably be withheld, (B)
such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans (other than Competitive Loans) and participations in LC
Disbursements, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all
other amounts) and (C) in the case of any such assignment resulting from a claim
for compensation under Section 2.15 or payments required to be made pursuant to
------------
Section 2.17, such assignment will result in a reduction in such compensation or
------------
payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the
Issuing Lender and the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Borrower and its Nationwide
--------------------
Core Entities is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02. Authorization; Enforceability. The Transactions are within
-----------------------------
the Borrower's organizational powers and have been duly authorized by all
necessary organizational and, if required, stockholder action under their
respective Organizational Documents. This Agreement has been duly executed and
delivered by the Borrower and constitutes, and each of the other Loan Documents
to which it is a party when executed and delivered will constitute, a legal,
valid and binding obligation of the Borrower, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws of affecting creditors' rights generally and subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
SECTION 3.03. Governmental Approvals; No Conflicts.
------------------------------------
Credit Agreement
----------------
-37-
The Transactions (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except for such as have been obtained or made and are in full force and effect,
(b) will not violate any applicable law or regulation or the Organizational
Documents of the Borrower or any of the Nationwide Core Entities or any order of
any Governmental Authority, (c) will not violate or result in a default under
any indenture, material agreement or other material instrument binding upon the
Borrower or any of the Nationwide Core Entities or their assets, or give rise to
a right thereunder to require any payment to be made by the Borrower or any of
the Nationwide Core Entities, and (d) will not result in the creation or
imposition of any Lien on any asset of the Borrower or any of the Nationwide
Core Entities.
SECTION 3.04. Financial Condition; No Material Adverse Change.
-----------------------------------------------
(a) Financial Condition. The Borrower has heretofore furnished to the
-------------------
Lenders its consolidated balance sheet and statements of income, stockholders
equity and cash flows (i) as of and for the fiscal year ended December 31, 2001,
reported on by Xxxxxx Xxxxxxxx LLP, independent public accountants, and (ii) as
of and for the fiscal quarter and the portion of the fiscal year ended June 30,
2002, certified by its chief financial officer. Such financial statements
present fairly, in all material respects, the financial position and results of
operations and cash flows of the Consolidated Entities as of such dates and for
such periods in accordance with GAAP, subject to year-end audit adjustments and
the absence of footnotes in the case of the statements referred to in clause
(ii) above. Neither the Borrower nor any of its Subsidiaries has any Contingent
Obligation, contingent liability or liability for any taxes, long-term leases or
commitments, not reflected in its audited financial statements delivered to the
Administrative Agent on or prior to the Closing Date or otherwise disclosed to
the Administrative Agent in writing, which will have or is reasonably likely to
have a Material Adverse Effect.
(b) No Material Adverse Change. Since June 30, 2002, there has been no
--------------------------
material adverse change in the business, assets, operations, prospects or
condition, financial or otherwise, of the Borrower and the other Consolidated
Entities, taken as a whole.
SECTION 3.05. Properties.
----------
(a) Property Generally. Each of the Nationwide Entities has good title
------------------
to, or valid leasehold interests in, all its real and personal property material
to its business, except for minor defects in title that do not materially
interfere with its ability to conduct its business as currently conducted or to
utilize such properties for their intended purposes.
(b) Intellectual Property. Each of the Nationwide Entities owns, or is
---------------------
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Nationwide Entities does not infringe upon the rights of any other Person,
except for any such infringements that, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters.
------------------------------------
(a) Actions, Suits and Proceedings. There are no actions, suits or
------------------------------
proceedings by or before any arbitrator or Governmental Authority now pending
against or, to the knowledge of the Borrower, threatened against or affecting
the Borrower or any of the Nationwide Core Entities (i) as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect (other than the Disclosed Matters) or (ii)
that involve this Agreement or the Transactions.
(b) Environmental Matters. Except for the Disclosed Matters and except
---------------------
with respect to any other matters that, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect, neither the
Borrower nor any of the Nationwide Core Entities (i) has failed to comply in all
material respects with any Environmental Law or to obtain, maintain or comply in
all material respects with any permit, license or other approval required under
any Environmental Law, (ii) has become subject to any Environmental Liability,
(iii) has received notice of any claim with respect to any Environmental
Liability or (iv) knows of any basis for any
Credit Agreement
----------------
-38-
Environmental Liability.
(c) Disclosed Matters. Except as otherwise disclosed to and approved
-----------------
by a majority of Required Lenders, since the date of this Agreement, there has
been no change in the status of the Disclosed Matters that, individually or in
the aggregate, has resulted in, or materially increased the likelihood of, a
Material Adverse Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of the Borrower and
-----------------------------------
the Nationwide Core Entities is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. Neither the Borrower
-------------------------------------
nor any of the Nationwide Core Entities is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Borrower and the Nationwide Core Entities
-----
has timely filed or timely caused to be filed all Tax returns and reports
required to have been filed and has paid or caused to be paid all Taxes required
to have been paid by it, except (a) Taxes that are being contested in good faith
by appropriate proceedings and for which the Borrower or Nationwide Core Entity,
as applicable, has set aside on its books adequate reserves in accordance with
GAAP or (b) to the extent that the failure to do so could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected
-----
to occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations of all underfunded Plans (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as of
the date of the most recent financial statements reflecting such amounts, exceed
by more than $10,000,000 the fair market value of the assets of all such
underfunded Plans.
SECTION 3.11. Disclosure. The Borrower has disclosed to the Lenders all
----------
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. Neither the Information Memorandum nor any of the
reports, financial statements, certificates or other information furnished by or
on behalf of the Borrower to the Administrative Agent or any Lender in
connection with the negotiation of this Agreement and the other Loan Documents
or delivered hereunder or thereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading in any material
respect; provided that, with respect to projected financial information, the
Borrower represents only that such information was prepared in good faith based
upon assumptions believed to be reasonable at the time.
SECTION 3.12. Use of Credit. Neither the Borrower nor any of the Nationwide
-------------
Core Entities is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose, whether immediate, incidental
or ultimate, of buying or carrying Margin Stock, and no part of the proceeds of
any extension of credit hereunder will be used to buy or carry any Margin Stock.
SECTION 3.13. Material Agreements and Liens.
-----------------------------
(a) Material Agreements. Part A of Schedule 3.13 is a complete and
------------------- -------------
correct list of each credit agreement, loan agreement, indenture, purchase
agreement, guarantee, letter of credit or other arrangement providing for or
otherwise relating to any Indebtedness or any extension of credit (or commitment
for any extension of credit) to, or guarantee by, the Borrower or any of the
Nationwide Core Entities outstanding on the date hereof that is not disclosed on
the most recent financial statement delivered to the Administrative Agent
pursuant to Section
-------
Credit Agreement
----------------
-39-
3.04 or 5.01, as applicable, the aggregate principal or face amount of which
---- ----
equals or exceeds (or may equal or exceed) $5,000,000 (each, a "Material
--------
Agreement"), and the aggregate principal or face amount outstanding or that may
---------
become outstanding under each such arrangement is correctly described in Part A
------
of Schedule 3.13. The Borrower is not in default in any material respect beyond
-------------
any applicable grace period under or with respect to any Material Agreement to
which it is a party or by which it or any of its property is bound in any
respect, the existence of which default is likely to result in a Material
Adverse Effect.
(b) Liens. Part B of Schedule 3.13 is a complete and correct list of
----- ------ -------------
each Lien securing Indebtedness of any Person outstanding on the date hereof
that is not disclosed on the most recent financial statement delivered to the
Administrative Agent pursuant to Section 3.04 or 5.01, as applicable, the
------------ ----
aggregate principal or face amount of which equals or exceeds (or may equal or
exceed) $5,000,000 and covering any property of the Borrower or any of the
Nationwide Core Entities, and the aggregate Indebtedness secured (or that may be
secured) by each such Lien and the property covered by each such Lien is
correctly described in Part B of Schedule 3.13.
------ -------------
SECTION 3.14. Capitalization. The Borrower has heretofore delivered to the
--------------
Lenders a true and complete copy of the Organizational Documents referred to in
Section 4.01(d). As of the date hereof, (x) except for stock options listed on
---------------
Schedule 3.14 and future stock options (so long as such future options do not
-------------
otherwise have a Material Adverse Effect) granted pursuant to Borrower's 1989
Stock Option Plan, as amended and restated January 24, 1992 and October 14,
1999, there are no outstanding Equity Rights with respect to the Borrower and
(y) there are no outstanding obligations of the Borrower or any of the
Nationwide Core Entities to repurchase, redeem, or otherwise acquire any Equity
Interests in the Borrower nor are there any outstanding obligations of the
Borrower or any of its Subsidiaries to make payments to any Person, such as
"phantom stock" payments, where the amount thereof is calculated with reference
to the fair market value or equity value of the Borrower or any of its
Subsidiaries.
SECTION 3.15. Subsidiaries and Investments.
----------------------------
(a) Subsidiaries. Set forth in Part A of Schedule 3.15 (such schedule
------------ ------ -------------
being subject to update from time to time as of the dates when this
representation is remade, or deemed to be remade) is a complete and correct
chart and list of all of the organizational structure of the Borrower and its
Subsidiary Entities, together with, for each such Person, (i) the jurisdiction
of organization of such Person, (ii) in the case of each such Subsidiary, each
Person holding Equity Interests in such Person and (iii) in the case of each
such Subsidiary, the nature of the ownership interests held by each such Person
and the percentage of ownership of the Borrower and Subsidiary Entity
represented by such ownership interests. Except as disclosed in Part A of
------
Schedule 3.15, (x) each of the Borrower and its Subsidiary Entities owns, free
-------------
and clear of Liens, and has the unencumbered right to vote, all outstanding
ownership interests in each Person shown to be held by it in Part A of Schedule
------ --------
3.15, (y) all of the issued and outstanding capital stock of each such Person
----
organized as a corporation is validly issued, fully paid and nonassessable and
(z) there are no outstanding Equity Rights with respect to such Person.
(b) Investments. Set forth in Part B of Schedule 3.15 is a complete
----------- ------ -------------
and correct list of all Investments (other than Investments disclosed in Part A
------
of Schedule 3.15 and other than Permitted Investments and operating deposit
-------------
accounts with banks) held by the Borrower or any of its Subsidiary Entities in
any Person on the date hereof that are not disclosed on the most recent
financial statement delivered to the Administrative Agent pursuant to Section
-------
3.04 or 5.01 and, for each such Investment, (x) the identity of the Person or
---- ----
Persons holding such Investment and (y) the nature of such Investment. Except as
disclosed in Part B of Schedule 3.15, each of the Borrower and its Subsidiary
------ -------------
Entities owns, free and clear of all Liens, all such Investments.
SECTION 3.16. Real Property. Set forth on Schedule 3.16 is a list, as of
------------- -------------
the date hereof, of all of the real property interests held by the Borrower and
its Subsidiary Entities, indicating in each case whether the respective property
is owned or leased, the identity of the owner or lessee and the location of the
respective property.
SECTION 3.17. Solvency. On the Effective Date and after and giving effect
--------
to the Loans occurring on the Effective Date or such other date as Loans
requested hereunder are made, and the disbursement of the proceeds of such Loans
pursuant to the Borrower's instructions, the Borrower is and will be Solvent.
Credit Agreement
----------------
-40-
SECTION 3.18. No Default. No Default or Event of Default has occurred and
----------
is continuing.
SECTION 3.19. Insurance. The Borrower and the Nationwide Core Entities
---------
currently maintain all insurance which is required to be maintained pursuant to
Section 5.05.
------------
SECTION 3.20. Organizational Documents. The Organizational Documents
------------------------
heretofore delivered to the Administrative Agent pursuant to Section 4.01(e)
---------------
constitute, as of the date hereof, all of the Organizational Documents (together
with all amendments and modifications thereof) of the Borrower. The Borrower
represents that it has delivered to the Administrative Agent true, correct and
complete copies of each of the documents set forth in this Section.
SECTION 3.21. Executive Offices; Places of Organization. The principal
-----------------------------------------
offices, chief executive offices and principal places of business of the
Borrower are located at 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx Xxxxx,
Xxxxxxxxxx 00000. The Borrower was organized in the State of Maryland.
SECTION 3.22. Securities Act. Neither the Borrower nor any of its
--------------
Subsidiary Entities have issued any unregistered securities in violation of the
registration requirements of Section 5 of the Securities Act of 1933, (as
amended from time to time) or any other law, nor are they in violation of any
rule, regulation or requirement under such act, or the Securities Exchange Act
of 1934, (as amended from time to time) other than violations which could not
reasonably be expected to have a Material Adverse Effect. Neither the Borrower
nor any of its Subsidiary Entities is required to qualify an indenture under the
Trust Indenture Act of 1939, (as amended from time to time) in connection with
its execution and delivery of this Agreement or the incurrence of Indebtedness
hereunder.
SECTION 3.23. REIT Status. The Borrower: (a) is a REIT, (b) has not revoked
-----------
its election to be a REIT, (c) has not engaged in any "prohibited transactions"
as defined in Section 856(b)(6)(iii) of the Code (or any successor provision
thereto), and (d) for its current "tax year" as defined in the Code is and for
all prior tax years subsequent to its election to be a REIT has been entitled to
a dividends paid deduction which meets the requirements of Section 857 of the
Code.
SECTION 3.24. Leases. All of the leases of real property in which the
------
Borrower or any of its Subsidiary Entities is the lessor, including Healthcare
Leases, are listed on Schedule 3.24. To the best of the Borrower's knowledge,
-------------
with respect to each such lease, the lease has been duly authorized, executed
and delivered by the lessee, is in full force and effect and the obligations of
the lessee are valid, binding and enforceable, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws and equitable principles relating to or limiting creditors' rights
generally. To the best of the Borrower's knowledge except as otherwise disclosed
to and approved by the Required Lenders, there exists no material breach,
default, or event or condition which, with notice or lapse of time or both,
would constitute such a material breach or default by the lessee, and there are
no existing claims, defenses or offsets against rental due or to become due,
under the terms of any such lease, other than such breaches, defaults, claims,
defenses or offsets that could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.25. Brokers. The Borrower has not dealt with any broker or finder
-------
with respect to the Transactions or otherwise in connection with this Agreement.
ARTICLE IV.
CONDITIONS
----------
SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans
--------------
and of the Issuing Lender to issue Letters of Credit hereunder shall not become
effective until the date on which (i) the Administrative Agent shall have
received each of the documents referred to below and (ii) each of the other
conditions listed below is satisfied, the satisfaction of each of such
conditions to be satisfactory to the Administrative Agent (and to the extent
specified below, to each Lender) in form and substance (or any such condition
shall have been waived in accordance with Section 9.02):
------------
Credit Agreement
----------------
-41-
(a) Agreement. From each party hereto either (i) a counterpart of this
---------
Agreement signed on behalf of such party or (ii) written evidence satisfactory
to the Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart of
this Agreement.
(b) Notes. The Notes duly completed and executed by the Borrower for
-----
each respective Lender.
(c) Opinion of Counsel to the Borrower. A favorable written opinion
----------------------------------
(addressed to the Administrative Agent and the Lenders and dated the Effective
Date) of Xxxxxx, Xxxxxxxxx & Xxxxxx LLP, counsel for the Borrower, substantially
in the form of Exhibit F, and covering such other matters relating to the
---------
Borrower, this Agreement or the Transactions as the Required Lenders
shall reasonably request. The Borrower hereby requests such counsel to deliver
such opinion to the Lenders and the Administrative Agent.
(d) Opinion of Special New York Counsel to the Borrower. A favorable
---------------------------------------------------
written opinion (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of Xxxxxxxxx Traurig, LLP, special New York counsel for the
Borrower, substantially in the form of Exhibit G, and covering such other
---------
matters relating to the laws of the State of New York and to the Borrower, this
Agreement or the Transaction s as the Required Lenders shall reasonably request.
The Borrower hereby requests such counsel to deliver such opinion to the Lenders
and the Administrative Agent.
(e) Organizational Documents. Copies of (i) the Certificate of
------------------------
Incorporation, Certificate of Formation, Certificate of Limited Partnership or
similar formation document of the Borrower, certified by the Secretary of State
of the state of formation of such Person as of a recent date, (ii) the
Organizational Documents of the Borrower (unless delivered pursuant to clause
------
(i) above) and the Persons identified in Schedule 4.01(e) and (iii) the
--- ----------------
applicable resolutions authorizing the delivery of the Loan Documents, certified
by the Secretary or an Assistant Secretary of such Person (or if such Person is
a limited partnership or limited liability company, an authorized representative
of its general partner or manager) as of the date of this Agreement as being
accurate and complete, in each case relating to the organization, existence and
good standing of such Person, the authorization of the Transactions and any
other legal matters relating to such Person, this Agreement or the Transactions,
all in form and substance satisfactory to the Administrative Agent and its
counsel.
(f) Compliance Certificate. A certificate, dated the Effective Date
----------------------
and signed by a Financial Officer.
(g) Material Adverse Effect. There shall not have occurred any change,
-----------------------
event or development that could, in the opinion of the Lenders, have a Material
Adverse Effect.
(h) Repayment of Existing Indebtedness. Evidence that the principal of
----------------------------------
and interest on, and all other amounts owing in respect of, the Existing
Revolving Credit Agreement (including any contingent or other amounts payable in
respect of letters of credit) shall have been (or shall be simultaneously) paid
in full on the Effective Date, that any commitments to extend credit under the
agreements or instruments relating to such Indebtedness shall have been canceled
or terminated and that all Guarantees in respect of, and all Liens securing, any
such Indebtedness shall have been released (or arrangements for such release
satisfactory to the Required Lenders shall have been made).
(i) Third Party Approvals. All acts and conditions (including, without
---------------------
limitation, the obtaining of any third party consents and necessary regulatory
approvals and the making of any required filings, recordings or registrations)
required to be done and performed and to have happened precedent to the
execution, delivery and performance of the Loan Documents by the Borrower.
(j) Other Documents. Such other documents as the Administrative Agent
---------------
or any Lender or special New York counsel to JPMorgan may reasonably request.
The obligation of any Lender to make its initial extension of credit
hereunder is also subject to the payment or delivery by the Borrower of such
fees, expenses and other consideration as the Borrower shall have
Credit Agreement
----------------
-42-
agreed to pay or deliver to any Lender, the Arrangers or the Administrative
Agent in connection herewith, including the reasonable fees and expenses of
Xxxxxxxx & Xxxxxxxx LLP, special New York counsel to JPMorgan, in connection
with the negotiation, preparation, execution and delivery of this Agreement and
the other Loan Documents and the extensions of credit hereunder (to the extent
that statements for such fees and expenses have been delivered to the Borrower).
The Administrative Agent shall notify the Borrower and the Lenders of
the Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans and
of the Issuing Lender to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) on or prior to 3:00 p.m., New York City time, on
------------
November 8, 2002 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender to make a
-----------------
Loan on the occasion of any Borrowing, and of the Issuing Lender to issue,
amend, renew or extend any Letter of Credit, is subject to the satisfaction of
the following conditions:
(a) receipt by the Administrative Agent of a Revolving Borrowing
Request pursuant to Section 2.03 or, if applicable, a request for a Letter of
Credit pursuant to Section 2.06(b);
---------------
(b) unless otherwise disclosed to and approved by the Required
Lenders, the representations and warranties of the Borrower set forth in this
Agreement and in the other Loan Documents shall be true and correct in all
material respects on and as of the date of such Borrowing or the date of
issuance, amendment, renewal or extension of such Letter of Credit, as
applicable (except, if any such representation or warranty is expressly stated
to have been made as of a specific date, as of such specific date); and
(c) at the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (b) and
--------------
(c) of the preceding sentence.
---
ARTICLE V.
AFFIRMATIVE COVENANTS
---------------------
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The Borrower will
------------------------------------------
furnish to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end
of each fiscal year of the Borrower, its audited consolidated balance sheet and
related statements of operations, stockholders' equity and cash flows as of the
end of and for such year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on by Ernst & Young US, LLP
or other independent public accountants of recognized national standing (without
a "going concern" or like qualification or exception and without any
qualification or exception as to the scope of such audit) to the effect that
such consolidated financial statements present fairly in all material respects
the financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied;
Credit Agreement
----------------
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(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, its consolidated balance sheet and
related statements of operations, stockholders' equity and cash flows as of the
end of and for such fiscal quarter and the then elapsed portion of the fiscal
year, setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet, as of
the end of) the previous fiscal year, all certified by one of its Financial
Officers as presenting fairly in all material respects the financial condition
and results of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a Compliance Certificate of a Financial Officer of the
---------- ---
Borrower representing and certifying (i) that the Financial Officer signatory
thereto has reviewed the terms of the Loan Documents, and has made, or caused to
be made under his/her supervision, a review in reasonable detail of the
transactions and consolidated financial condition of the Borrower and its
Subsidiaries, during the fiscal quarter covered by such reports, that such
review has not disclosed the existence during or at the end of such fiscal
quarter, and that such officer does not have knowledge of the existence as at
the date of such Compliance Certificate, of any condition or event which
constitutes an Event of Default or Default or mandatory prepayment event, or, if
any such condition or event existed or exists, specifying the nature and period
of existence thereof and what action the Borrower or its Subsidiaries has taken,
is taking and proposes to take with respect thereto, (ii) the calculations (with
such specificity as the Administrative Agent may reasonably request) for the
period then ended which demonstrate compliance with the covenants and financial
ratios set forth in Sections 6.01, 6.04 and 6.07, (iii) stating whether any
------------- ---- ----
change in GAAP or in the application thereof has occurred since the date of the
audited financial statements referred to in Section 3.04 and, if any such change
------------
has occurred, specifying the effect of such change on the financial statements
accompanying such certificate, (iv) a schedule of Total Liabilities in respect
of borrowed money in the level of detail disclosed in the Borrower's Form 10-Q
filings with the Securities and Exchange Commission, as well as such other
information regarding such Indebtedness as may be reasonably requested by the
Administrative Agent, and (v) a schedule of EBITDA.
(d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on such
----------
financial statements stating whether they obtained knowledge during the course
of their examination of such financial statements of any Default (which
certificate may be limited to the extent required by accounting rules or
guidelines);
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by the
Borrower or any its Subsidiaries with the Securities and Exchange Commission, or
any Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed by the
Borrower to its shareholders generally;
(f) to the extent not otherwise delivered pursuant to this Section
-------
5.01, copies of all financial statements and financial information delivered by
----
the Borrower (or, upon Administrative Agent's request, any of its Subsidiary
Entities) from time to time to the holders of any unsecured Indebtedness for
borrowed money of such Persons;
(g) promptly after Xxxxx'x, Fitch or S&P shall have announced a change
in the rating established or deemed to have been established for the Index Debt,
written notice of such rating change; and
(h) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower, any Subsidiary Entity, any of the Properties of the Borrower or any
Subsidiary Entity, or compliance with the terms of this Agreement and the other
Loan Documents, as the Administrative Agent or any Lender may reasonably
request.
SECTION 5.02. Notices of Material Events. The Borrower will furnish to the
--------------------------
Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
Credit Agreement
----------------
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(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Borrower or any of the Nationwide Core Entities that, if adversely determined,
could reasonably be expected to result in a Material Adverse Effect;
(c) the assertion of a claim of any Environmental Liability by any
Person against, or with respect to any activities of the Borrower or any
Nationwide Core Entity, and any alleged violation of or non-compliance by or on
behalf of the Borrower or any Nationwide Core Entity with any Environmental Laws
or any permits, licenses or authorizations, other than any claim of
Environmental Liability or alleged violation that, if adversely determined,
would not (either individually or in the aggregate) have a Material Adverse
Effect;
(d) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to result in
liability of the Borrower and the Nationwide Core Entities in an aggregate
amount exceeding $1,000,000;
(e) the occurrence of any Event of Loss aggregating $5,000,000 or
more;
(f) the purchase or Disposition of any Healthcare Properties
aggregating $10,000,000 or more, together with (i) a description of such
transaction in reasonable detail and (ii) if requested by the Administrative
Agent, copies of all materials presented to the Borrower's board of directors in
connection with the approval of such transaction; and
(g) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Borrower will, and will
------------------------------
cause each of the Nationwide Core Entities to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
-------
6.03.
----
SECTION 5.04. Payment of Obligations. The Borrower will, and will cause
----------------------
each of the Nationwide Core Entities to, pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect before
the same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b)
the Borrower or such Nationwide Core Entity has set aside on its books adequate
reserves with respect thereto in accordance with GAAP and (c) the failure to
make payment pending such contest could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The Borrower will or
------------------------------------
will cause, and will cause each of the Nationwide Core Entities to, (a) keep and
maintain all property material to the conduct of its business in good working
order and condition, ordinary wear and tear excepted and (b) maintain, with
financially sound and reputable insurance companies, insurance in such amounts
and against such risks as are customarily maintained by companies engaged in the
same or similar businesses operating in the same or similar locations.
SECTION 5.06. Books and Records; Inspection Rights. The Borrower will, and
------------------------------------
will cause each of the Nationwide Core Entities to, keep proper books of record
and account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of the Nationwide Core Entities to, permit any representatives
designated by the Administrative Agent or any Lender, upon reasonable prior
notice, to visit and inspect its properties, to examine and make extracts from
its books and records, and to discuss its affairs, finances and condition with
its officers and independent accountants, all at such reasonable times and as
often as reasonably requested.
Credit Agreement
----------------
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SECTION 5.07. Compliance with Laws. The Borrower will, and will cause each
--------------------
of the Nationwide Core Entities to, comply in all material respects with all
laws, rules, regulations and orders of any Governmental Authority applicable to
it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.08. Use of Proceeds and Letters of Credit. The proceeds of the
-------------------------------------
Loans will be used only for general corporate purposes. No part of the proceeds
of any Loan will be used, whether directly or indirectly, for any purpose that
entails a violation of any of the Regulations of the Board, including
Regulations T, U and X. Letters of Credit will be issued only to support general
corporate purposes.
SECTION 5.09. Further Assurances. The Borrower will, and will cause each of
------------------
the Nationwide Core Entities to, promptly upon request by the Administrative
Agent or the Required Lenders, execute any and all further documents, agreements
and instruments, and take all such further actions which may be required under
any applicable law, or which either Agent or the Required Lenders may reasonably
request, to effectuate the Transactions, all at the expense of the Borrower.
SECTION 5.10. REIT Status. The Borrower shall maintain its status as a REIT
-----------
and (a) all of the representations and warranties set forth in clauses (a), (b)
----------- ---
and (d) of Section 3.23 shall remain true and correct at all times and (b) all
--- ------------
of the representations and warranties set forth in clause (c) of Section 3.23
---------- ------------
shall remain true and correct in all material respects. The Borrower will do or
cause to be done all things necessary to maintain the listing of its Equity
Interest on the New York Stock Exchange, the American Stock Exchange or the
Nasdaq National Market System (or any successor thereof).
SECTION 5.11. Hazardous Materials. The Borrower will, and will cause each
-------------------
of the Nationwide Core Entities to, do the following:
(a) Keep and maintain all Real Properties in material compliance with
any Environmental Laws unless the failure to so comply would not be reasonably
expected to result in a Material Adverse Effect; and
(b) Promptly cause the removal of any Hazardous Materials discharged,
disposed of, or otherwise released in, on or under any Real Properties that are
in violation of any Environmental Laws and which would be reasonably expected to
result in a Material Adverse Effect, and cause any remediation required by any
Environmental Laws or Governmental Authority to be performed, though no such
action shall be required if any action is subject to a good faith contest. In
the course of carrying out such actions, the Borrower shall provide the
Administrative Agent with such periodic information and notices regarding the
status of investigation, removal, and remediation, as the Administrative Agent
may reasonably require.
Article VI.
NEGATIVE COVENANTS
------------------
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated and all LC Disbursements
shall have been reimbursed, the Borrower covenants and agrees with the Issuing
Lender and the Lenders that:
SECTION 6.01. Indebtedness. The Borrower will not, and will not permit any
------------
Nationwide Core Entity to, create, incur, assume or permit to exist any
Indebtedness, except Indebtedness to the extent the Borrower and the Nationwide
Core Entities maintain compliance with the covenants set forth in Sections 6.04
-------------
and 6.07.
----
SECTION 6.02. Liens. The Borrower will not, and will not permit any
-----
Nationwide Core Entity to, create, incur, assume or permit to exist any Lien on
any property or asset now owned or hereafter acquired by it, or assign or sell
any income or revenues (including accounts receivable) or rights in respect of
any thereof, except:
Credit Agreement
----------------
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(a) Liens that secure Secured Indebtedness to the extent that the
Borrower and the Nationwide Core Entities maintain compliance with the covenants
set forth in Sections 6.04 and 6.07;
------------- ----
(b) Permitted Encumbrances; and
(c) without limiting the provisions of clause (a) of this Section, any
----------
Lien on any property or asset of the Borrower or any of the Nationwide Core
Entities existing on the date hereof and set forth in Part B of Schedule 3.13,
------ -------------
or, to the extent not meeting the minimum thresholds for required listing on
Schedule 3.13 pursuant to Section 3.13, in an aggregate amount not exceeding
------------- ------------
$10,000,000 (excluding, however, following the making of the initial Loans
hereunder, Liens securing Indebtedness to be repaid with the proceeds of such
Loans, as indicated on Schedule 3.13); provided that, except with respect to
-------------
Secured Indebtedness permitted under clause (a) of this Section, (i) such Lien
----------
shall not apply to any other property or asset of the Borrower or any Nationwide
Core Entity, (ii) any such Lien shall secure only those obligations which it
secures on the date hereof, provided that in any case, the Borrower and the
Nationwide Core Entities shall maintain compliance with the covenants set forth
in Sections 6.04 and 6.07.
------------- ----
SECTION 6.03. Fundamental Changes.
-------------------
(a) Mergers, Consolidations, Disposal of Assets, Etc. The Borrower
------------------------------------------------
will not, and will not permit any Nationwide Core Entity to, merge into or
consolidate with any other Person, or permit any other Person to merge into or
consolidate with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) all or substantially all of its
Properties and assets whether now owned or hereafter acquired, or all or
substantially all of the Equity Interest of any of the Nationwide Core Entities
(in each case, whether now owned or hereafter acquired), or liquidate or
dissolve, except that, if at the time thereof and immediately after giving
effect thereto no Default shall have occurred and be continuing (i) any
Nationwide Core Entity (other than the Borrower) may merge into the Borrower in
a transaction in which the Borrower is the surviving corporation, (ii) any
Nationwide Core Entity (other than the Borrower) may merge into a Nationwide
Core Entity in a transaction in which the surviving entity is a Nationwide Core
Entity, (iii) subject to compliance with the provisions of Section 6.04, any
------------
Person (other than a Nationwide Core Entity) may merge into any Nationwide Core
Entity (other than the Borrower in a transaction in which such Nationwide Core
Entity is the surviving entity) and (iv) to the extent not otherwise permitted
by clause (i), (ii) or (iii) above, the Borrower or any other Nationwide Core
---------- ---- -----
Entity may merge or consolidate with and into any Person, in each case with the
prior written approval of the Required Lenders and (v) any Nationwide Core
Entity may sell, transfer, lease or otherwise dispose of its assets to the
Borrower or to another Nationwide Core Entity; provided that any such merger
involving a Person that is not a Wholly-Owned Subsidiary of (x) the Borrower or
(y) any Wholly-Owned Subsidiary of a Subsidiary of the Borrower immediately
prior to such merger shall not be permitted unless also permitted by Section
-------
6.04.
----
(b) Lines of Business. The Borrower will not, and will not permit any
-----------------
Nationwide Core Entity to, engage to any material extent in any business other
than businesses of the type conducted by the Borrower and the Nationwide Core
Entities on the date of execution of this Agreement and businesses reasonably
related thereto.
SECTION 6.04. Investments.
-----------
The Borrower will not, and will not permit any Nationwide Core
Entity to, make or permit to remain outstanding any Investments except:
(a) subject to the limitations set forth in paragraph (c) below,
-------------
Investments outstanding on the date hereof and identified in Part B of Schedule
------ --------
3.15;
----
(b) subject to the limitations set forth in paragraph (c) below,
-------------
Investments by the Borrower and the Nationwide Core Entities in the Borrower and
the Nationwide Core Entities; and
(c) subject to the limitations set forth below, Investments in
Healthcare Properties:
Credit Agreement
----------------
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----------------------------------------------------- ---------------------------------------------
Asset Type Limitations
----------------------------------------------------- ---------------------------------------------
Individual Healthcare Properties No individual Healthcare Property or Equity
Interest in a Person owning an individual
Healthcare Property shall be acquired
without the consent of the Administrative
Agent and the Required Lenders if the
Aggregate Investment Value of such Property
exceeds 10% of the Capitalization Value
----------------------------------------------------- ---------------------------------------------
Portfolio of Healthcare Properties Equity Interest in Persons owning multiple
Healthcare Properties shall not be
acquired in a single transaction or series
of related transactions without the consent
of the Administrative Agent and the
Required Lenders if the Aggregate
Investment Value of such Healthcare
Properties exceeds 33% of the
Capitalization Value
----------------------------------------------------- ---------------------------------------------
Mortgage Loans acquired by the Borrower or any The Aggregate Investment Value of all such
Wholly-Owned Subsidiary which have first lien Mortgage Loans shall not exceed 20% of the
priority on Healthcare Properties Capitalization Value
----------------------------------------------------- ---------------------------------------------
Healthcare Property Under Construction The Aggregate Investment Value of all
Healthcare Property Under Construction
shall not exceed 7.5% of Capitalization
Value
----------------------------------------------------- ---------------------------------------------
Permitted Investments Unlimited
----------------------------------------------------- ---------------------------------------------
Operating Deposit Accounts with Banks Unlimited
----------------------------------------------------- ---------------------------------------------
SECTION 6.05. Restricted Payments. The Borrower will not, and will not
-------------------
permit any Nationwide Core Entity to, declare or make, or agree to pay or make,
directly or indirectly, (a) any Restricted Payment in any fiscal year in excess
of 100% of the aggregate amount of Cash Flow for such period; (b) Restricted
Payments to acquire, redeem or retire the Equity Interest in the Borrower to the
extent such Restricted Payments are proceeds received from a substantially
concurrent issue of new Equity Interests in the Borrower; (c) Restricted
Payments during any period while an Event of Default under paragraph (a) or (b)
------------- ---
of Article VII has occurred and is continuing as a result of the Borrower's
-----------
failure to pay any principal or interest due under this Agreement; or (d)
Restricted Payments during any period that any other material non-monetary Event
of Default, has occurred and is continuing, unless after taking into account all
available funds of the Borrower from all other sources, such Restricted Payments
are required in order to enable the Borrower to continue to qualify as a REIT.
Notwithstanding anything to the contrary contained in this Section or elsewhere
in this Agreement, so long as no Event of Default shall have occurred and be
continuing, the Borrower shall be permitted to make, with respect to the Fiscal
Quarter ending December 31, 2002, a preferred dividend payment in the amount of
$1.91925 per share and a common dividend payment in the amount of $.46 per
share.
SECTION 6.06. Transactions with Affiliates. The Borrower will not, and will
----------------------------
not permit any Nationwide Core Entity to, directly or indirectly, sell, lease or
otherwise transfer any property or assets to, or purchase, lease or otherwise
acquire any property or assets from, or otherwise engage in any other
transactions with, any of their Affiliates, except (a) in the ordinary course of
business at prices and on terms and conditions not less favorable to the
Borrower or such Nationwide Core Entity than could be obtained on an
arm's-length basis from unrelated third parties and (b) any Restricted Payment
permitted by Section 6.05.
------------
Credit Agreement
----------------
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SECTION 6.07. Certain Financial Covenants. The Borrower will not permit the
---------------------------
non-compliance with any of the following covenants and ratios at any time, such
covenants and ratios to be tested (x) on the last day of each Fiscal Quarter and
(y) at any time acquisitions and Dispositions by the Borrower and its Subsidiary
Entities (provided, in the case of a Joint Venture, such calculation shall be
made based upon the Consolidated Entities' direct or indirect pro rata share of
such acquisition or Disposition) exceed $100,000,000 in any Fiscal Quarter, and
in the case of clause (y), the following covenants and ratios shall be adjusted
----------
to reflect any such acquisitions and Dispositions:
(a) Minimum Net Asset Value. The Borrower will not permit Net
-----------------------
Asset Value to be less than the sum of $500,000,000.
(b) Maximum Total Liabilities to Capitalization Value. The
-------------------------------------------------
Borrower will not permit the ratio of Total Liabilities to Capitalization Value
(expressed as a percentage) to be more than 60%.
(c) Minimum Interest Coverage Ratio. The Borrower will not permit
-------------------------------
the Interest Coverage Ratio to be less than 2.50 to 1.00.
(d) Minimum Fixed Charges Ratio. The Borrower will not permit the
---------------------------
Fixed Charges Ratio to be less than 1.75 to 1.00.
(e) Maximum Secured Indebtedness Ratio. The Borrower will not
----------------------------------
permit the Secured Indebtedness Ratio to exceed 15%.
(f) Minimum Unsecured Interest Coverage Ratio. The Borrower will
-----------------------------------------
not permit the Unsecured Interest Coverage Ratio to be less than 2.50 to 1.00.
(g) Maximum Floating Rate Debt. The Borrower will maintain Swap
--------------------------
Agreements on a notional amount of Total Liabilities in respect of borrowed
Indebtedness so that such notional amount, when added to the aggregate principal
amount of such Total Liabilities which bears interest at a fixed rate, equals or
exceeds 75% of the aggregate principal amount of all such Total Liabilities;
provided, however, in no event shall the Borrower maintain, or permit any
Nationwide Core Entity to maintain, any Swap Agreement involving the hedging of
a fixed rate interest obligation of the Borrower or any Nationwide Core Entity
to a floating rate of interest.
(h) Maximum Unencumbered Asset Value Ratio. The Borrower will not
--------------------------------------
permit the Unencumbered Asset Value Ratio to exceed 60%, provided that, the
Borrower shall not be in default under this Section if the Borrower timely
complies with the provisions of Section 2.11(b).
---------------
(i) Minimum Rent/Mortgage Interest Coverage Ratio. The Borrower
---------------------------------------------
will not permit the Rent/Mortgage Interest Coverage Ratio of all Qualified
Unencumbered Properties in the aggregate to be less than 1.25 to 1.00.
SECTION 6.08. Organizational Documents. Without the prior written consent
------------------------
of Administrative Agent and the Required Lenders, the Borrower will not, and
will not permit any other Person to, Modify any of the terms or provisions in
the Organizational Documents delivered in connection with Section 4.01(e),
except: (a) any Modifications necessary for the Borrower to issue more Equity
Interests (provided such issuance does not otherwise violate the terms of this
Agreement); or (b) Modifications necessary to clarify existing provisions of
such Organizational Documents; or (c) Modifications which would have no material
adverse, substantive effect on the rights or interests of the Lenders or the
Issuing Lender in conjunction with the Loans or Letters of Credits or under the
Loan Documents.
SECTION 6.09. Fiscal Year. The Borrower will not change its Fiscal Year for
-----------
accounting or tax purposes from a period consisting of the 12-month period
ending on December 31 of each calendar year.
SECTION 6.10. Senior Management. The Borrower will cause R. Xxxxx Xxxxxxx
-----------------
to be the chief executive officer of the Borrower until the indefeasible payment
in full of the Obligations; provided, however, no
Credit Agreement
----------------
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Default or Event of Default shall be deemed to have occurred if R. Xxxxx Xxxxxxx
ceases to be the chief executive officer of the Borrower so long as the Borrower
promptly takes all action necessary to replace R. Xxxxx Xxxxxxx with another
similarly qualified and experienced individual reasonably acceptable to the
Required Lenders in their sole determination.
SECTION 6.11. Dispositions. The Borrower will not permit any Disposition
------------
by the Borrower or its Subsidiary Entities of any of its respective Properties
if such Disposition would cause the Borrower to be in violation of any of (a)
the covenants set forth in Section 6.07 or (b) the limitations on Investments
------------
set forth in Section 6.04.
------------
Article VII.
EVENTS OF DEFAULT
-----------------
If any of the following events ("Events of Default") shall occur:
-----------------
(a) the Borrower shall fail to pay any principal on any Loan or
any reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a date
fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest, fee or any other
amount (other than an amount referred to in clause (a) of this Article) payable
----------
under this Agreement or under any other Loan Document, when and as the same
shall become due and payable, and such failure shall continue unremedied for a
period of five days;
(c) any representation or warranty made or deemed made by or on
behalf of the Borrower or any of its Subsidiary Entities in or in connection
with this Agreement or any other Loan Document or any amendment or modification
hereof or thereof or any waiver hereunder or thereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or in
connection with this Agreement or any other Loan Document or any amendment or
modification hereof or thereof or any waiver hereunder or thereunder, shall
prove to have been incorrect in any material respect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.03 (with respect to its
------------ ----
existence), 5.08, 5.10 or in Article VI;
---- ---- ----------
(e) any Event of Default shall occur under any of the other Loan
Documents;
(f) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those specified
in this Article, including clause (a), (b), (d) or (e) of this Article) or any
---------- --- --- ---
other Loan Document and such failure shall continue unremedied for a period of
30 or more days after notice thereof from the Administrative Agent to the
Borrower (which notice shall be given at the request of any Lender); provided
--------
that in the case of any such Default which is susceptible to cure but cannot be
cured within 30 days through the exercise of reasonable diligence, if (i) the
Required Lenders shall not have determined that such default is not susceptible
of being cured within a maximum of 90 days from the Administration Agent's
original notice of Default, and (ii) such Borrower commences such cure within
the initial 30 days period and diligently prosecutes same to completion, such
period of 30 days shall be extended for such additional period of time as may be
reasonably necessary to cure same, but in no event shall such extended period
exceed 60 days;
(g) the Borrower or any Nationwide Core Entity shall fail to make
any payment (whether of principal or interest and regardless of amount) in
respect of any Material Indebtedness, when and as the same shall become due and
payable, other than Non-Recourse Indebtedness of the Borrower and the Nationwide
Core Entities;
(h) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both) the
holder or holders of any Material Indebtedness or any trustee or agent on its or
their behalf to cause any Material
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----------------
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Indebtedness to become due, or to require the prepayment, repurchase, redemption
or defeasance thereof, prior to its scheduled maturity; provided that this
clause (h) shall not apply to (i) Secured Indebtedness that becomes due as a
---------
result of the voluntary sale or transfer of the property or assets securing such
Indebtedness in accordance with this Agreement or (ii) Non-Recourse Indebtedness
of the Borrower and the Nationwide Core Entities;
(i) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of the Borrower or any Nationwide Core Entities or its
debts, or of a substantial part of its assets, under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Nationwide Core Entities
or for a substantial part of its assets, and, in any such case, such proceeding
or petition shall continue undismissed for a period of 90 days or an order or
decree approving or ordering any of the foregoing shall be entered;
(j) the Borrower or any Nationwide Core Entities shall (i)
voluntarily commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect, (ii) consent
to the institution of, or fail to contest in a timely and appropriate manner,
any proceeding or petition described in clause (i) of this Article, (iii) apply
----------
for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any Nationwide
Core Entities or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors or (vi)
take any action for the purpose of effecting any of the foregoing;
(k) the Borrower or any Nationwide Core Entities shall become
unable, admit in writing its inability or fail generally to pay its debts as
they become due;
(l) one or more judgments for the payment of money in an
aggregate amount in excess of $10,000,000 shall be rendered against the
Borrower, any Nationwide Core Entities or any combination thereof and the same
shall remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be legally taken
by a judgment creditor to attach or levy upon any assets of the Borrower or such
Nationwide Core Entity to enforce any such judgment;
(m) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in liability of the Borrower,
any Nationwide Core Entities or any combination thereof in an aggregate amount
exceeding $10,000,000 for all periods;
(n) a Change in Control shall occur;
(o) the Borrower shall be terminated, dissolved or liquidated (as
a matter of law or otherwise) or proceedings shall be commenced by any Person
(including the Borrower) seeking the termination, dissolution or liquidation of
the Borrower and such proceeding shall continue undismissed for a period of 90
days; or
(p) the occurrence of any event which results in a Material
Adverse Effect, as reasonably determined by the Administrative Agent;
then, and in every such event (other than an event described in clause (i) or
----------
(j) of this Article), and at any time thereafter during the continuance of such
---
event, the Administrative Agent may, with the consent of the Required Lenders,
and at the request of the Required Lenders shall, by notice to the Borrower,
take either or both of the following actions, at the same or different times:
(i) terminate the Commitments, and thereupon the Commitments shall terminate
immediately, (ii) declare the Loans then outstanding to be due and payable in
whole (or in part, in which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other Obligations of the Borrower accrued
hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower; and in case of any event described in clause (i) or (j) of this
---------- ---
Article, the Commitments shall automatically terminate
Credit Agreement
----------------
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and the principal of the Loans then outstanding, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder,
shall automatically become due and payable, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower and
exercise all of its rights and remedies, whether provided at law or in equity.
ARTICLE VIII.
THE ADMINISTRATIVE AGENT
------------------------
Each of the Lenders and the Issuing Lender hereby irrevocably appoints
the Administrative Agent as its agent hereunder and under the other Loan
Documents and authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent
by the terms hereof or thereof, together with such actions and powers as are
reasonably incidental thereto.
The Person serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such
Person and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Borrower or any of its Subsidiary
Entities or other Affiliate thereof as if it were not the Administrative Agent
hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Administrative Agent shall not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or
by the other Loan Documents that the Administrative Agent is required to
exercise in writing by the Required Lenders (or such other number or percentage
of the Lenders as shall be necessary under the circumstances as provided in
Section 9.02), and (c) except as expressly set forth herein and in the other
------------
Loan Documents, the Administrative Agent shall not have any duty to disclose,
and shall not be liable for the failure to disclose, any information relating to
the Borrower or any of its Subsidiary Entities that is communicated to or
obtained by the bank serving as Administrative Agent or any of its Affiliates in
any capacity. The Administrative Agent shall not be liable for any action taken
or not taken by it with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 9.02), or in the absence of its own
------------
gross negligence or willful misconduct. The Administrative Agent shall be deemed
not to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent by the Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement or any other Loan Document, (ii) the contents of
any certificate, report or other document delivered hereunder or thereunder or
in connection herewith or therewith, (iii) the performance or observance of any
of the covenants, agreements or other terms or conditions set forth herein or
therein, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or
document, or (v) the satisfaction of any condition set forth in Article IV or
----------
elsewhere herein or therein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more subagents appointed
by the Administrative Agent. The Administrative Agent and any
Credit Agreement
----------------
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such subagent may perform any and all its duties and exercise its rights and
powers through their respective Related Parties. The exculpatory provisions of
the preceding paragraphs shall apply to any such subagent and to the Related
Parties of the Administrative Agent and any such subagent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders, the Issuing Lender and the Borrower. Upon any
such resignation, the Required Lenders shall have the right, with the approval
of the Borrower (so long as no Event of Default has occurred and is continuing),
to appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Lender, with the approval of the Borrower (so long as no Event of Default has
occurred and is continuing), appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring
------------
Administrative Agent, its subagents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
ARTICLE IX.
MISCELLANEOUS
-------------
SECTION 9.01. Notices.
-------
(a) Except in the case of notices and other communications expressly
permitted to be given by telephone (and subject to paragraph (b) below), all
-------------
notices and other communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(i) if to the Borrower, to Nationwide Health Properties, Inc.,
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000,
Attention of Xxxx X. Xxxxxxx (Telecopy No. (000) 000-0000; Telephone No.
(000) 000-0000);
(ii) if to the Administrative Agent, to JPMorgan Chase Bank, One
Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of
Loan and Agency Services Group (Telecopy No. (000) 000-0000), with a copy
to JPMorgan Chase Bank, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention of Xxxx Mix (Telecopy No. (000) 000-0000);
(iii) if to the Issuing Lender, to JPMorgan Chase Bank, One Chase
Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Loan and
Agency Services Group (Telecopy No. (000) 000-0000), with a copy to
JPMorgan Chase Bank, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Credit Agreement
----------------
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Attention of Xxxx Mix (Telecopy No. (000) 000-0000); and
(iv) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
(b) Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Article II unless otherwise agreed by the
----------
Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
(c) Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
SECTION 9.02. Waivers; Amendments.
-------------------
(a) No Deemed Waivers; Remedies Cumulative. No failure or delay by the
--------------------------------------
Administrative Agent, the Issuing Lender or any Lender in exercising any right
or power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent, the Issuing Lender and the Lenders
hereunderare cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
-------------
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether the Administrative
Agent, any Lender or the Issuing Lender may have had notice or knowledge of such
Default at the time.
(b) Amendments. Neither this Agreement nor any provision hereof may be
----------
waived or Modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders or by the Borrower and the
Administrative Agent with the consent of the Required Lenders; provided that no
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
LC Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal amount of any Loan
or LC Disbursement, or any interest thereon, or any fees payable hereunder, or
reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date of expiration of any Commitment, without the written consent of
each Lender affected thereby, except for the extension of the Maturity Date
pursuant to Section 2.09(e), (iv) change Section 2.18(b), (c) or (d) in a manner
--------------- --------------- --- ---
that would alter the pro rata sharing of payments required thereby, without the
written consent of each Lender, or (v) change any of the provisions of this
Section or the definition of "Required Lenders" or any other provision hereof
specifying the number or percentage of Lenders required to waive, amend or
modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender; provided further that no
such agreement shall amend, modify or otherwise affect the rights or duties of
the Administrative Agent or the Issuing Lender hereunder without the prior
written consent of the Administrative Agent or the Issuing Lender, as the case
may be.
SECTION 9.03. Expenses; Indemnity; Damage Waiver.
----------------------------------
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable
------------------
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of
Credit Agreement
----------------
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counsel for the Administrative Agent, in connection with the syndication of the
credit facilities provided for herein, the preparation and administration of
this Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the Issuing Lender in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder, (iii) all out-of-pocket expenses incurred by the
Administrative Agent, the Issuing Lender or any Lender, including the reasonable
fees, charges and disbursements of any counsel for the Administrative Agent, the
Issuing Lender or any Lender, in connection with the enforcement or protection
of its rights in connection with this Agreement and the other Loan Documents,
including its rights under this Section, or in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit and (iv) and all costs, expenses, taxes, assessments
and other charges incurred in connection with any filing, registration,
recording or perfection of any security interest contemplated by any document
referred to therein.
(b) Indemnification by the Borrower. The Borrower shall indemnify the
-------------------------------
Administrative Agent, the Arrangers, the Issuing Lender and each Lender, and
each Related Party of any of the foregoing Persons (each such Person being
called an "Indemnitee") against, and to hold each Indemnitee harmless from, any
----------
and all losses, claims, damages, liabilities and related expenses, including the
fees, charges and disbursements of any counsel for any Indemnitee, incurred by
or asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the Transactions or any
other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the
use of the proceeds therefrom (including any refusal by the Issuing Lender to
honor a demand for payment under a Letter of Credit if the documents presented
in connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Borrower or any of
its Subsidiary Entities, or any Environmental Liability related in any way to
the Borrower or any of the its Subsidiary Entities, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses resulted from the gross
negligence or willful misconduct of such Indemnitee.
(c) Reimbursement by Lenders. To the extent that the Borrower fails to
------------------------
pay any amount required to be paid by it to the Administrative Agent or the
Issuing Lender under paragraph (a) or (b) of this Section, each Lender severally
------------- ---
agrees to pay to the Administrative Agent or the Issuing Lender, as the case may
be, such Lender's Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent or the Issuing Lender in its capacity
as such.
(d) Waiver of Consequential Damages, Etc. To the extent permitted by
------------------------------------
applicable law, the Borrower shall not assert, and hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the Transactions, any Loan or
Letter of Credit or the use of the proceeds thereof.
(e) Payments. All amounts due under this Section shall be payable not
--------
later than 10 days after written demand therefor.
SECTION 9.04. Successors and Assigns.
----------------------
(a) Assignments Generally. The provisions of this Agreement shall be
---------------------
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby (including any Affiliate of the Issuing
Lender that issues any Letter of Credit), except that (i) the Borrower may not
assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Lender (and any
Credit Agreement
----------------
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attempted assignment or transfer by the Borrower without such consent shall be
null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of the Issuing Lender that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c) of this
-------------
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent, the Issuing Lender and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders.
----------------------
(i) Subject to the conditions set forth in paragraph (b)(ii) below,
-----------------
any Lender may assign to one or more assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it) with the prior written consent
(such consent not to be unreasonably withheld) of:
(A) the Borrower, provided that no consent of the Borrower shall be
--------
required for an assignment to a Lender, an Affiliate of a Lender, an
Approved Fund or, if an Event of Default has occurred and is continuing,
any other assignee; and
(B) the Administrative Agent, provided that no consent of the
--------
Administrative Agent shall be required for an assignment of any Revolving
Commitment to an assignee that is (x) a Lender with a Revolving Commitment
immediately prior to giving effect to such assignment, (y) an Affiliate of
a Lender or (z) an Approved Fund.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender or an Affiliate
of a Lender or an assignment of the entire remaining amount of the
assigning Lender's Commitment or Loans of any Class, the amount of the
Commitment or Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent) shall not be less
than $5,000,000 unless each of the Borrower and the Administrative Agent
otherwise consent, provided that no such consent of the Borrower shall be
--------
required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement, provided that this clause shall not be construed to
--------
prohibit the assignment of a proportionate part of all the assigning
Lender's rights and obligations in respect of one Class of Commitments or
Loans;
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500; and
(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.
For the purposes of this Section 9.04(b), the term "Approved Fund" has
--------------- -------------
the following meaning:
"Approved Fund" means any Person (other than a natural person) that is
-------------
engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to paragraph
---------
(b)(iv) of this Section, from and after the effective date specified in each
-------
Assignment and Assumption the assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Assumption, have
the rights and
Credit Agreement
----------------
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obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 2.15,
-------------
2.16, 2.17 and 9.03). Any assignment or transfer by a Lender of rights or
---- ---- ----
obligations under this Agreement that does not comply with this Section 9.04
------------
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of
-------------
this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitment of, and principal amount of the
Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof
from time to time (the "Register"). The entries in the Register shall be
--------
conclusive, and the Borrower, the Administrative Agent, the Issuing Lender and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Issuing Lender and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
-------------
this Section and any written consent to such assignment required by paragraph
---------
(b) of this Section, the Administrative Agent shall accept such Assignment and
---
Assumption and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(c) Participations.
--------------
(i) Any Lender may, without the consent of the Borrower, the
Administrative Agent or the Issuing Lender, sell participations to one or more
banks or other entities (a "Participant") in all or a portion of such Lender's
-----------
rights and/or obligations under this Agreement and the other Loan Documents
(including all or a portion of its Commitment and the Loans owing to it);
provided that (i) such Lender's obligations under this Agreement and the other
Loan Documents shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Administrative Agent, the Issuing Lender and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
the other Loan Documents. Any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and the other Loan Documents and to approve any
amendment, modification or waiver of any provision of this Agreement or any
other Loan Document; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
-------
9.02(b) that affects such Participant. Subject to paragraph (c)(ii) of this
------- -----------------
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a
------------- ---- ----
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
-------------
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 9.08 as though it were a Lender, provided
------------
such Participant agrees to be subject to Section 2.18(c) as though it were a
---------------
Lender.
(ii) A Participant shall not be entitled to receive any greater payment
under Section 2.15 or 2.17 than the applicable Lender would have been entitled
------------ ----
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.17 unless the Borrower
------------
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 2.17(e) as
---------------
though it were a Lender.
(d) Certain Pledges. Any Lender may at any time pledge or assign a
---------------
security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including any pledge or assignment
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to secure obligations to a Federal Reserve Bank, and this Section shall not
apply to any such pledge or assignment of a security interest; provided that no
such pledge or assignment of a security interest shall release a Lender from any
of its obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
(e) No Assignments to the Borrower or Affiliates. Anything in this
--------------------------------------------
Section to the contrary notwithstanding, no Lender may assign or participate any
interest in any Loan or LC Exposure held by it hereunder to the Borrower, any
Nationwide Core Entity or any of their Affiliates without the prior consent of
each Lender.
SECTION 9.05. Survival. All covenants, agreements, representations and
--------
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Lender or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article
------------- ---- ---- ---- -------
VIII shall survive and remain in full force and effect regardless of the
----
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may
----------------------------------------
be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been
------------
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to be
------------
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred
---------------
and be continuing, each Lender and each of its Affiliates is hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other obligations at any time owing
by such Lender or Affiliate to or for the credit or the account of the Borrower
against any of and all the obligations of the Borrower now or hereafter existing
under this Agreement held by such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. The rights of each Lender under this Section are
in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Etc.
--------------------------------
(a) Governing Law. This Agreement shall be construed in accordance with
-------------
and governed by the law of the State of New York.
(b) Submission to Jurisdiction. The Borrower hereby irrevocably and
--------------------------
unconditionally submits,
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----------------
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for itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement or any other Loan Document, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent, the Issuing Lender or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement against the Borrower
or its properties in the courts of any jurisdiction.
(c) Waiver of Venue. The Borrower hereby irrevocably and
---------------
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any court referred to in paragraph (b) of this Section. Each of the parties
-------------
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Service of Process. The Borrower hereby irrevocably appoints CT
------------------
Corporation System (the "Process Agent") with an office on the date hereof at
-------------
000 0xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 as its agent to receive on behalf of it
and its property service of copies of the summons and complaint and any other
process which may be served in any such suit, action or proceeding. Such service
may be made by mailing or delivering a copy of such process to the Borrower, in
care of the Process Agent at the Process Agent's above address and the Borrower
hereby irrevocably authorizes and directs the Process Agent to accept such
service on its behalf. The Administrative Agent and each Lender agree to mail to
the Borrower at its address provided in Section 9.01 a copy of any summons,
------------
complaint, or other process mailed or delivered by it to the Borrower in care of
the Process Agent. As an alternate method of service, the Borrower also
irrevocably consents to the service of any and all process in any such suit,
action or proceeding in the manner provided for notices in Section 9.01. The
------------
Borrower agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. All mailings under this Section 9.09 shall
------------
be by certified mail, return receipt requested. Nothing in this Agreement will
affect the right of any party to this Agreement to serve process in any other
manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
--------------------
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table of
--------
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent, the
---------------
Issuing Lender and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or under any other Loan
Document or any suit, action or proceeding relating to this Agreement or any
other Loan Document or the enforcement of rights hereunder or thereunder, (f)
subject to an
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----------------
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agreement containing provisions substantially the same as those of this Section,
to (i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii)
any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower and its obligations, (g) with
the consent of the Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to the Administrative Agent, the Issuing Lender or any Lender
on a nonconfidential basis from a source other than the Borrower. For the
purposes of this Section, "Information" means all information received from or
-----------
on behalf of the Borrower relating to the Borrower, its Subsidiaries or
Affiliates or their respective businesses, other than any such information that
is available to the Administrative Agent, the Issuing Lender or any Lender on a
nonconfidential basis prior to disclosure by the Borrower; provided that, in the
case of information received from the Borrower after the date hereof, such
information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
SECTION 9.13. Additional Commitments.
----------------------
Upon the request of the Borrower (such request, the "Additional
----------
Syndication Notice") given to the Administrative Agent within twenty-four (24)
------------------
months after the date of this Agreement, and provided that there is no Default
or Event of Default, the Administrative Agent shall use commercially reasonable
efforts to obtain additional Commitments in the aggregate amount of up to Fifty
Million Dollars ($50,000,000) (the "Additional Commitment Amount"), subject to
----------------------------
the following:
(a) Promptly after delivery of the Additional Syndication Notice, the
Administrative Agent shall request that the existing Lenders accept a pro rata
share of the Additional Commitment Amount. If any Lender rejects the offer to
increase its respective Commitment or accepts only a portion thereof, which each
Lender may do in its sole and absolute discretion, the Administrative Agent
shall further offer the rejected shares (or rejected portions thereof) to the
Lenders that have accepted the proposed increase in their Commitments (each an
"Accepting Lender"), pro rata based on the sum of their then existing
----------------
Commitments plus any additional portion of the Additional Commitment Amount
which they have previously accepted. If any Lender shall not respond to a
request by the Administrative Agent pursuant to this clause (a) within ten (10)
----------
Business Days after receipt of an offer (including any offer for a portion of
the Additional Commitment Amount rejected by another Lender), such Lender shall
be deemed to have rejected such offer. The Administrative Agent shall notify the
Borrower of all acceptances and rejections with respect to the Additional
Commitment Amount by the Lenders. If such acceptances are satisfactory to the
Borrower, the Commitments of the Accepting Lenders shall be increased by their
respective portions of the Additional Commitment Amount without the consent of
any other Lender, subject, however, to (i) no Default or Event of Default being
in existence at such time, (ii) the Borrower issuing substitute Notes, (iii) the
Accepting Lenders paying to the Administrative Agent (on behalf of the other
Lenders) the aggregate amount determined by the Administrative Agent to be
necessary so that each Initial Accepting Lender's pro rata share of outstanding
Loans and LC Exposure matches the ratio of its increased Commitment to the
aggregate amount of all revised Commitments after giving effect to the
Additional Commitment Amount, (iv) the Borrower, the Accepting Lenders and the
Administrative Agent executing such other documents evidencing such adjustments
in the Commitments and the Loans as shall be reasonable acceptable to the
Borrower, the Accepting Lenders, the Administrative Agent and the Issuing Lender
and (v) the Borrower paying all of the Administrative Agent's reasonable
out-of-pocket expenses in connection with the foregoing. The Administrative
Agent shall promptly pay to the applicable Lenders their share of any payments
received from the Accepting Lenders in accordance with the immediately preceding
sentence.
(b) Notwithstanding anything to the contrary contained herein, if the
Lenders do not accept increases in their aggregate Commitments in the full
amount of the Additional Commitment Amount in accordance with paragraph (a)
-------------
above, the Borrower may designate one or more proposed lenders to the
Administrative Agent and the Issuing Lender to become Lenders under this
Agreement with respect to such balance of the Additional Commitment Amount (but
in no event with proposed commitments of less than $5,000,000 unless the
Administrative Agent consents thereto), subject in each case to the prior
approval of the Administrative Agent and the Issuing Lender, which approvals
shall not be unreasonably withheld or delayed if such proposed lenders meet the
standards of an Eligible Assignee. If such proposed lenders are so approved,
such lenders shall become
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----------------
-60-
additional Lenders under this Agreement in accordance with their respective
Commitments without the consent of any other Lenders, subject, however, to (i)
no Default or Event of Default being in existence at such time, (ii) the
Borrower issuing substitute Notes to the new Lenders, (iii) such new Lenders
paying to the Administrative Agent (on behalf of the other Lenders) the
aggregate amount determined by the Administrative Agent to be necessary so that
each new Lender's pro rata share of outstanding Loans and LC Exposure matches
the ratio of its Commitment to the aggregate amount of all Commitments after
giving effect to the Additional Commitment Amount, (iv) the Borrower, the new
Lenders and the Administrative Agent executing such other documents evidencing
their addition as Lenders hereunder and the adjustment of the Commitments and
Loans as shall be reasonably acceptable to the Borrower, the Administrative
Agent and the Issuing Lender, including each such new Lender's compliance with
the provisions of clauses (ii), (iii) and (v) of Section 9.04(b), and (v) the
------------ ----- --- ---------------
Borrower paying all of the Administrative Agent's reasonable out-of-pocket
expenses in connection with the foregoing. The Administrative Agent shall
promptly pay to the applicable Lenders their share of any payments received from
such new Lenders in accordance with the immediately preceding sentence.
[Signature Pages Follow]
Credit Agreement
----------------
-61-
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
BORROWER:
--------
NATIONWIDE HEALTH PROPERTIES, INC.,
a Maryland corporation
By: /s/ XXXX X. XXXXXXX
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President and
Chief Financial Officer
Credit Agreement
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ADMINISTRATIVE AGENT:
--------------------
JPMORGAN CHASE BANK,
as Administrative Agent
By: /s/ XXXX X. MIX
--------------------------------------
Name: Xxxx X. Mix
Title: Vice President
Credit Agreement
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LENDERS
-------
JPMORGAN CHASE BANK
By /s/ XXXX X. MIX
------------------------------
Name: Xxxx X. Mix
Title: V.P.
Credit Agreement
----------------
-00-
XXXX XX XXXXXXX, N.A.
By /s/ XXXXX XXXXXX
-------------------
Name: Xxxxx Xxxxxx
Title: Principal
Credit Agreement
----------------
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XXXXX FARGO BANK, NATIONAL ASSOCATION
By /s/ XXXXXX X. XXXXXX
------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Credit Agreement
----------------
THE BANK OF NEW YORK
By /s/ XXXXXXX X. XXXXXX
-----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Credit Agreement
----------------
UBS AG, STAMFORD BRANCH
By /s/ XXXXXXXX X'XXXXX
-------------------------
Name: Xxxxxxxx X'Xxxxx
Title: Director
By /s/ XXXXXXX SAINT
---------------------------
Name: Xxxxxxx Saint
Title: Associate Director
Credit Agreement
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-2-
KBC BANK N.V.
By /s/ XXXXXX XXXXXXXX
-------------------------------
Name: Xxxxxx Xxxxxxxx
Title: First Vice President
By /s/ XXXXXXX X. XXXXXX
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: First Vice President
Credit Agreement
----------------
List of Omitted Exhibits and Schedules
The following exhibits and schedules to the Credit Agreement have been omitted
and shall be furnished supplementally to the Commission upon request:
SCHEDULES
Schedule 2.01 - Commitments
Schedule 3.06 - Litigation and Environmental Disclosed Matter
Schedule 3.13 - Material Agreements and Liens
Schedule 3.14 - Stock Options
Schedule 3.15 - Subsidiaries and Investments
Schedule 3.16 - Real Property
Schedule 3.24 - Leases
Schedule 4.01(d) - Organizational Documents
EXHIBITS
Exhibit A - Assignment and Assumption
Exhibit B-1 - Form of Note for Revolving Loans
Exhibit B-2 - Form of Note for Competitive Loans
Exhibit C - Form of Revolving Borrowing Request
Exhibit D - Form of Revolving Interest Election Request
Exhibit E - Form of Competitive Bid Request
Exhibit F - Form of Opinion of Counsel to the Borrower
Exhibit G - Form of Opinion of Special New York Counsel to the Borrower
Exhibit H - Form of Compliance Certificate
