Prospectus
Supplement filed under Rule 424(b)(3)
Registration
Number 333-132029
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Prospectus
Supplement No. 1, dated April 5, 2006
(To
Prospectus, dated March 14, 2006)
3,696,422
Shares of Common Stock
This
prospectus supplement to the prospectus dated March 14, 2006 relates to the
offering by Omega Healthcare Investors, Inc. to participate in its Dividend
Reinvestment and Common Stock Purchase Plan.
This
prospectus supplement should be read in conjunction with the prospectus dated
March 14, 2006, which is to be delivered with this prospectus supplement. The
information in this prospectus supplement updates and supercedes certain
information contained in the prospectus dated March 14, 2006.
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NEITHER
THE SEC NOR ANY STATE SECURITIES COMMISSION HAS DETERMINED WHETHER THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE NOR HAVE THEY MADE, NOR WILL THEY MAKE,
ANY
DETERMINATION AS TO WHETHER ANYONE SHOULD BUY THESE SECURITIES. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------------------------------------------------------------------------------------------------------------
On
April
5, 2006, Omega Healthcare Investors, Inc. filed with the Securities and Exchange
Commission the attached Current Report on Form 8-K reporting its execution
of a
new revolving credit facility and the termination of its previous credit
facility.
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date
of
report (Date of earliest event reported): April 5, 2006
OMEGA
HEALTHCARE INVESTORS, INC.
(Exact
name of registrant as specified in charter)
|
Maryland
|
1-11316
|
38-3041398
|
|
(State
of incorporation)
|
(Commission
File Number)
|
(IRS
Employer
Identification
No.)
|
9690
Deereco Road
Suite
100
Timonium,
Maryland 21093
(Address
of principal executive offices / Zip Code)
(410)
427-1700
(Registrant’s
telephone number, including area code)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
Written
communications pursuant to Rule 425 under the Securities Act.
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act.
Pre-commencement
communications pursuant to Rule 14d—2(b) under the Exchange Act.
Pre-commencement
communications pursuant to Rule 13e—4(c) under the Exchange Act.
Item
1.01 Entry into a Material Definitive
Agreement.
On
March
31, 2006, Omega Healthcare Investors, Inc. (“Omega”) entered into a new
four-year $200 million revolving senior secured credit facility (the “New Credit
Facility”).
The
New
Credit Facility is being provided by Bank
of
America, N.A., Banc of America Securities LLC, Deutsche Bank Trust Company
Americas, UBS Securities, LLC and General Electric Capital Corporation (the
“Lenders”) pursuant to a Credit Agreement, dated as of March 31, 2006
(the
“New
Credit Agreement”), among the
Omega
subsidiaries named therein (“Borrowers”), the lenders named therein, and Bank of
America, N.A., as administrative agent.
Omega
and
its subsidiaries have guaranteed the obligations of the Borrowers under the
New
Credit Agreement in favor of the Bank of America, N.A.
The
material terms of the New Credit Facility are as follows:
Interest
Rates and Fees. The
interest rates per annum applicable to the New Credit Facility are the
Eurodollar Rate, or Eurodollar, plus the applicable margin (as defined below)
or, at our option, the base rate, which will be the higher of (i) the rate
of interest publicly announced by the administrative agent as its prime rate
in
effect, and (ii) the federal funds effective rate from time to time plus
0.50% ,
in
each
case, plus the applicable margin (as defined below).
The
applicable margin with respect to the New Credit Facility is determined in
accordance with a performance grid based on our consolidated leverage ratio.
The
applicable margin may range from 2.0% to 0.5% in the case of Eurodollar
advances, from 0.75% to .00% in
the
case of base rate advances, and from 2.0% to 0.5% in the case of letter of
credit fees. The default rate on the New Credit Facility is 3.00% above the
interest rate otherwise applicable to base rate loans. We are also obligated
to
pay a commitment fee of 0.35% on the unused portion of our New Credit Facility
if usage is less than fifty percent and 0.25% on the unused portion of our
New
Credit Facility if usage exceeds fifty percent.
Prepayments. In
certain circumstances set forth in the New Credit Agreement, we may prepay
the
New Credit Facility at any time in whole or in part without fees or
penalty.
Covenants. The
New Credit Facility contains customary affirmative and negative covenants,
including, without limitation, limitations on investments; limitations on
liens;
limitations on mergers, consolidations, and transfers of assets; limitations
on
sales of assets; limitations on transactions with affiliates; and limitations
on
our transfer of ownership and management. In addition, the New Credit Facility
contains financial covenants including, without limitation, with respect
to
maximum leverage ratio, minimum fixed charge coverage ratio, minimum tangible
net worth and maximum distributions.
Events
of Default. The
New Credit Facility includes customary events of default including, without
limitation, nonpayment of principal, interest, fees or other amounts when
due,
covenant defaults, cross-defaults, a change of control, bankruptcy events,
material unsatisfied or unstayed judgments, and loss of real estate investment
trust (“REIT”) status.
Right
to Increase Maximum Borrowings. Pursuant
to the terms of the New Credit Agreement, the Lenders have agreed that in
certain circumstances Omega may increase the revolving commitments under
the New
Credit Facility by up to an additional $100 million, for maximum aggregate
borrowings outstanding of up to $300 million.
Security
and Guarantees. Omega
and its subsidiaries that are not borrowers under the New Credit Facility
guarantee the obligations of our borrower subsidiaries under the New Credit
Facility. All obligations under the New Credit Facility and the related
guarantees are secured by a perfected first priority lien on certain real
properties and all improvements, fixtures, equipment and other personal property
relating thereto of the subsidiaries party to the New Credit Facility, and
an
assignment of leases, rents, sale/refinance proceeds and other proceeds flowing
from the real properties.
At
March
31, 2006, Omega had $4.5 million of borrowings outstanding under the New
Credit
Facility.
On
April
4, 2006, Omega issued a press release announcing that it had entered into
the
New Credit Facility and terminated its Prior Credit Facility (as defined
and
discussed below). A copy of Omega’s press release is attached to this Current
Report on Form 8-K as Exhibit 99.1.
The
New
Credit Agreement is attached to this Current Report on Form 8-K as Exhibit
10.1
and is incorporated herein by reference.
Item
1.02 Termination of a Material Definitive
Agreement.
On
March
31, 2006, Omega terminated its previous $200 million revolving senior secured
credit facility (“Prior Credit Facility”). The Prior Credit Facility was
provided pursuant to that certain credit agreement, dated as of March 22,
2004
(the “Prior Credit Agreement”) with Banc of America Securities LLC as lead
arranger, Bank of America, N.A. as administrative agent and a syndicate of
other
financial institutions as lenders, which included Bank of America, N.A.,
Deutsche Bank AG, UBS Loan Finance LLC and General Electric Healthcare Financial
Services. The Prior Credit Facility initially provided a $125 million
senior secured four-year revolving credit facility and was subsequently
increased by amendment to $200 million. The borrowers under the Prior Credit
Facility were certain of Omega’s subsidiaries that hold borrowing base
properties (the “Prior Borrowers”).
The
material terms of the Prior Credit Facility were as follows:
Interest
Rates and Fees. The
interest rates per annum applicable to the Prior Credit Facility were the
Eurodollar Rate, or Eurodollar, plus the applicable margin (as defined below)
or, at our option, the base rate, which was the higher of (i) the rate of
interest publicly announced by the administrative agent as its prime rate
in
effect, and (ii) the federal funds effective rate from time to time plus
0.50%, in each case, plus the applicable margin (as defined below). The
applicable margin with respect to the Prior Credit Facility was determined
in
accordance with a performance grid based on our consolidated leverage ratio.
The
applicable margin ranged from 2.75% to 1.75% in the case of Eurodollar advances,
and from 1.25% to 0.25% in the case of base rate advances. The default rate
on
the Prior Credit Facility was 3.00% above the interest rate otherwise applicable
to base rate loans. The Prior Borrowers were also obligated to pay a commitment
fee of 0.35% on the unused portion of the Prior Credit Facility if usage
was
less than fifty percent and 0.25% on the unused portion of the Prior Credit
Facility if usage exceeded fifty percent.
Prepayments. The
Prior Credit Agreement provided for prepayment of the Prior Credit Facility
at
any time in whole or in part without fees or penalty, except that any prepayment
of Eurodollar advances other than at the end of the applicable interest periods
therefore was required to be made with reimbursement for any funding losses
and
redeployment costs of the lenders resulting therefrom.
Covenants. The
Prior Credit Facility contained customary affirmative and negative covenants,
including, without limitation, limitations on investments; limitations on
liens;
limitations on mergers, consolidations, and transfers of assets; limitations
on
sales of assets; limitations on transactions with affiliates; and limitations
on
our transfer of ownership and management. In addition, the Prior Credit Facility
contained financial covenants including, without limitation, with respect
to
maximum leverage ratio, minimum fixed charge coverage ratio, minimum tangible
net worth and maximum distributions.
Events
of Default. The
Prior Credit Facility included customary events of default including, without
limitation, nonpayment of principal, interest, fees or other amounts when
due,
covenant defaults, cross-defaults, bankruptcy events, material unsatisfied
or
unstayed judgments, and loss of REIT status.
Security
and Guarantees. Omega
and its subsidiaries that were not borrowers under the Prior Credit Facility
guaranteed the obligations of the Prior Borrowers under the Prior Credit
Facility. All obligations under the Prior Credit Facility and the related
guarantees were secured by a perfected first priority lien on certain real
properties and all improvements, fixtures, equipment and other personal property
relating thereto of the subsidiaries party to the Prior Credit Facility,
and an
assignment of leases, rents, sale/refinance proceeds and other proceeds flowing
from the real properties.
Omega
and
its subsidiaries terminated the Prior Credit Facility in connection with
the
effectiveness of the New Credit Facility, which provides a longer term than
the
term remaining under the Prior Credit Facility and a 125 basis point savings
on
LIBOR-based loans, as compared to LIBOR-based loans under the Prior Credit
Facility.
Omega
did not experience any material early termination penalties due to the
termination of the Prior Credit Facility. Omega
recorded a one-time, non-cash charge of approximately $2.7 million relating
to
the write-off of deferred financing costs associated with the termination
of the
Prior Credit Facility.
Item
2.03 Creation of Direct Financial Obligation or an Obligation under
an Off-Balance Sheet Arrangement of a Registrant.
See
Item
1.01 above, which is incorporated herein by reference, for a discussion of
the
creation of a direct financial obligation under the New Credit Facility.
Item
9.01. Financial Statements and Exhibits.
| 10.1 |
Credit
Agreement, dated as of
March 31, 2006, among OHI Asset, LLC, OHI Asset (ID), LLC, OHI Asset
(LA),
LLC, OHI Asset (TX), LLC, OHI Asset (CA), LLC, Delta Investors I,
LLC,
Delta Investors II, LLC, Texas Lessor- Stonegate, LP, the lenders
named
therein, and Bank of America, N.A.
|
| 99.1 |
Press
Release
dated April 4, 2006.
|
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant
has
duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
|
OMEGA
HEALTHCARE INVESTORS, INC.
|
|
|
|
|
|
|
|
By:/s/
C. Taylor
Pickett
|
|
Name: C.
Taylor Pickett
|
|
Title:
Chief Executive Officer
|
Dated: April
5, 2006
EXECUTION
COPY
Published
CUSIP Number ___________
CREDIT
AGREEMENT
Dated
as
of March 31, 2006
among
OHI
ASSET, LLC
OHI
ASSET
(ID), LLC
OHI
ASSET
(LA), LLC
OHI
ASSET
(TX), LLC
OHI
ASSET
(CA), LLC
DELTA
INVESTORS I, LLC
DELTA
INVESTORS II, LLC
TEXAS
LESSOR - STONEGATE, LP
as
Borrowers,
THE
LENDERS PARTY HERETO,
BANK
OF
AMERICA, N.A.,
as
Administrative Agent, Swing Line Lender and L/C Issuer,
and
BANC
OF
AMERICA SECURITIES LLC,
as
Sole
Lead Arranger and Sole Book Manager
and
DEUTSCHE
BANK TRUST COMPANY AMERICAS and UBS SECURITIES LLC,
as
Co-Syndication Agents
and
GENERAL
ELECTRIC CAPITAL CORPORATION and LASALLE BANK, N.A.,
as
Co-Documentation Agents
|
TABLE
OF CONTENTS
|
|
|
Article
and Section
|
Page
|
|
ARTICLE
I DEFINITIONS AND ACCOUNTING TERMS
|
2
|
|
1.01Defined
Terms.
|
2
|
|
1.02Interpretive
Provisions.
|
36
|
|
1.03Accounting
Terms.
|
36
|
|
1.04Rounding.
|
37
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|
1.05References
to Agreements and Laws.
|
37
|
|
1.06Times
of Day.
|
37
|
|
1.07Letter
of Credit Amounts.
|
37
|
|
ARTICLE
II COMMITMENTS AND EXTENSION OF CREDITS
|
37
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|
2.01Commitments.
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37
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|
2.02Borrowings,
Conversions and Continuations.
|
40
|
|
2.03Additional
Provisions with respect to Letters of Credit.
|
41
|
|
2.04Additional
Provisions with respect to Swing Line Loans.
|
48
|
|
2.05Repayment
of Loans.
|
50
|
|
2.06Prepayments.
|
50
|
|
2.07Termination
or Reduction of Commitments.
|
51
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|
2.08Interest.
|
52
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|
2.09Fees.
|
52
|
|
2.10Computation
of Interest and Fees.
|
54
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|
2.11Payments
Generally.
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54
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|
2.12Sharing
of Payments.
|
56
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|
2.13Evidence
of Debt.
|
56
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|
2.14Joint
and Several Liability of the Borrowers.
|
57
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|
2.15Appointment
of Parent as Legal Representative for Credit Parties.
|
59
|
|
ARTICLE
III TAXES, YIELD PROTECTION AND ILLEGALITY
|
59
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|
3.01Taxes.
|
59
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|
3.02Illegality.
|
60
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|
3.03Inability
to Determine Rates.
|
61
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|
3.04Increased
Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar
Rate
Loans.
|
61
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|
3.05Funding
Losses.
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62
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|
3.06Matters
Applicable to all Requests for Compensation.
|
62
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|
3.07Survival.
|
63
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ARTICLE
IV CONDITIONS PRECEDENT TO EXTENSION OF CREDITS
|
63
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|
4.01Conditions
to Initial Extensions of Credit.
|
63
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|
4.02Conditions
to Extensions of Credit.
|
67
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|
ARTICLE
V REPRESENTATIONS AND WARRANTIES
|
68
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|
5.01Financial
Statements; No Material Adverse Effect; No Internal Control
Event.
|
68
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|
5.02Corporate
Existence and Power.
|
69
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|
5.03Corporate
and Governmental Authorization; No Contravention.
|
69
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|
5.04Binding
Effect.
|
69
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|
5.05Litigation.
|
69
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|
5.06Compliance
with ERISA.
|
70
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|
5.07Environmental
Matters.
|
70
|
|
5.08Margin
Regulations; Investment Company Act.
|
71
|
|
5.09Compliance
with Laws.
|
72
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|
5.10Ownership
of Property; Liens.
|
72
|
|
5.11Corporate
Structure; Capital Stock, Etc.
|
72
|
|
5.12Real
Property Assets; Leases.
|
73
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|
5.13Material
Contracts; Additional Contractual Obligations.
|
74
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5.14Investments.
|
74
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|
5.15Solvency.
|
74
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|
5.16Taxes.
|
74
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|
5.17REIT
Status.
|
75
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|
5.18Insurance.
|
75
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|
5.19Healthcare;
Facility Representations and Warranties.
|
75
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5.20Disclosure.
|
77
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ARTICLE
VI AFFIRMATIVE COVENANTS
|
77
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6.01Financial
Statements.
|
77
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|
6.02Certificates;
Other Information.
|
78
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|
6.03Preservation
of Existence and Franchises.
|
81
|
|
6.04Books
and Records.
|
81
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|
6.05Compliance
with Law.
|
81
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|
6.06Payment
of Taxes and Other Indebtedness.
|
81
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|
6.07Insurance.
|
81
|
|
6.08Maintenance
of Property.
|
82
|
|
6.09Performance
of Obligations.
|
82
|
|
6.10Visits
and Inspections.
|
82
|
|
6.11Use
of Proceeds/Purpose of Loans and Letters of Credit.
|
83
|
|
6.12Financial
Covenants.
|
83
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|
6.13Environmental
Matters.
|
84
|
|
6.14REIT
Status.
|
84
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|
6.15New
Subsidiaries.
|
84
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|
6.16Pledged
Assets.
|
85
|
|
6.17Appraisals.
|
85
|
|
6.18Anti-Terrorism
Laws.
|
86
|
|
ARTICLE
VII NEGATIVE COVENANTS
|
86
|
|
7.01Liens.
|
86
|
|
7.02Indebtedness.
|
86
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|
7.03Fundamental
Changes.
|
87
|
|
7.04Dispositions;
Acquisitions.
|
87
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|
7.05Business
Activities.
|
88
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|
7.06Transactions
with Affiliates and Insiders.
|
88
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|
7.07Organization
Documents; Fiscal Year.
|
88
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|
7.08Modifications
to Other Documents.
|
88
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|
7.09Ownership
of Subsidiaries.
|
89
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|
7.10No
Further Negative Pledges.
|
89
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|
7.11Limitation
on Restricted Actions.
|
89
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|
7.12Addition/Replacement
of Borrowing Base Assets.
|
90
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ARTICLE
VIII EVENTS OF DEFAULT AND REMEDIES
|
91
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|
8.01Events
of Default.
|
91
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|
8.02Remedies
Upon Event of Default.
|
94
|
|
8.03Application
of Funds.
|
94
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ARTICLE
IX ADMINISTRATIVE AGENT
|
95
|
|
9.01Appointment
and Authorization of Administrative Agent.
|
95
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|
9.02Delegation
of Duties.
|
96
|
|
9.03Liability
of Administrative Agent.
|
96
|
|
9.04Reliance
by Administrative Agent.
|
96
|
|
9.05Notice
of Default.
|
97
|
|
9.06Credit
Decision; Disclosure of Confidential Information by Administrative
Agent.
|
97
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|
9.07Indemnification
of Administrative Agent.
|
98
|
|
9.08Administrative
Agent in its Individual Capacity.
|
99
|
|
9.09Successor
Administrative Agent.
|
99
|
|
9.10Administrative
Agent May File Proofs of Claim.
|
100
|
|
9.11Guaranty
Matters.
|
100
|
|
9.12Other
Agents; Arrangers and Managers.
|
101
|
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ARTICLE
X MISCELLANEOUS
|
101
|
|
10.01Amendments,
Etc.
|
101
|
|
10.02Notices
and Other Communications; Facsimile Copies.
|
103
|
|
10.03No
Waiver; Cumulative Remedies.
|
105
|
|
10.04Attorney
Costs, Expenses and Taxes.
|
105
|
|
10.05Indemnification
by the Borrowers.
|
105
|
|
10.06Payments
Set Aside.
|
106
|
|
10.07Successors
and Assigns.
|
107
|
|
10.08Confidentiality.
|
110
|
|
10.09Set
off.
|
111
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|
10.10Interest
Rate Limitation.
|
111
|
|
10.11Counterparts.
|
112
|
|
10.12Integration.
|
112
|
|
10.13Survival
of Representations and Warranties.
|
112
|
|
10.14Severability.
|
112
|
|
10.15Tax
Forms.
|
112
|
|
10.16Replacement
of Lenders.
|
114
|
|
10.17No
Advisory or Fiduciary Responsibility.
|
115
|
|
10.18Source
of Funds.
|
115
|
|
10.19GOVERNING
LAW.
|
116
|
|
10.20WAIVER
OF RIGHT TO TRIAL BY JURY.
|
117
|
|
10.21No
Conflict.
|
117
|
|
10.22USA
Patriot Act Notice.
|
117
|
|
10.23Entire
Agreement.
|
117
|
|
10.24California
Real Property Assets.
|
117
|
|
10.252004
Facility Assignment Agreement.
|
118
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SCHEDULES
1.01 Existing
Letters of Credit
2.01 Lenders
and Commitments
5.11
Corporate
Structure; Capital Stock
5.12 Real
Property Asset Matters
Part I
Borrowing Base Assets
Part II
Other
Real Property Assets
Part III
Delinquent Tenants
Part
IV
Facility Leases
Part
V
Material
Sub-leases
5.13
Material
Contracts; Contracts Subject to Assignment of Claims Act
5.18 Insurance
Certificates
7.01 Liens
7.02 Borrowers
Indebtedness
10.02 Notice
Addresses
10.07 Processing
and Recordation Fees
EXHIBITS
A Form
of
Loan Notice
B Form
of
Revolving Note
C-1 Form
of
Compliance Certificate
C-2 Form
of
Borrowing Base Certificate
D Form
of
Assignment and Assumption
E-1 Form
of
Borrower Joinder Agreement
E-2 Form
of
Subsidiary Guarantor Joinder Agreement
F Form
of
Lender Joinder Agreement
G Form
of
Guaranty
H Form
of
Security Agreement
I Form
of
Assignment of 2004 Credit Facility
CREDIT
AGREEMENT
This
CREDIT
AGREEMENT (as
amended, modified, restated or supplemented from time to time, this
“Credit
Agreement”
or
this
“Agreement”)
is
entered into as of March 31, 2006 by and among OHI ASSET, LLC, a Delaware
limited liability company, OHI ASSET (ID), LLC, a Delaware limited liability
company, OHI ASSET (LA), LLC, a Delaware limited liability company, OHI
ASSET
(TX), LLC, a Delaware limited liability company, OHI ASSET (CA), LLC, a
Delaware
limited liability company, DELTA INVESTORS I, LLC, a Maryland limited liability
company, DELTA INVESTORS II, LLC, a Maryland limited liability company
and TEXAS
LESSOR - STONEGATE, LP, a Maryland limited partnership (each of the foregoing
entities and each of the entities from time to time executing a Joinder
Agreement pursuant to Section
6.15
hereof
shall be hereinafter referred to individually as “Borrower” and
collectively as the “Borrowers”),
the
Lenders (as defined herein), and BANK OF AMERICA, N.A., as Administrative
Agent,
Swing Line Lender and L/C Issuer (each, as defined herein).
WHEREAS,
the
Borrowers are party to that certain Credit Agreement dated as of March
22, 2004,
as amended (the “2004
Credit Agreement”)
among
Bank of America, N.A. (“Bank
of America”),
UBS
Loan Finance LLC (“UBS”),
Deutsche Bank Trust Company Americas (“Deutsche
Bank”),
General Electric Capital Corporation (“GECC”),
Merrill Lynch Capital, a Division of Merrill Lynch Business Financial Services
Inc. (“Merrill
Lynch”),
JPMorgan Chase Bank, N.A. (formerly
Bank One, N.A.) (“JP
Morgan”),
LaSalle Bank, N.A. (“LaSalle”),
National City Bank (formerly The Provident Bank) (“NatCity”
and
together with Bank of America, UBS, Deutsche Bank, GECC, Merrill Lynch,
JP
Morgan, LaSalle, the “2004
Facility Lenders”)
and
Bank of America, N.A., as Administrative Agent (the “2004
Administrative Agent”)
pursuant to which a credit facility in the aggregate amount of $200,000,000
was
extended to the Borrowers (such obligations under such 2004 Credit Agreement
as
evidenced by certain promissory notes issued by the Borrowers in favor
of
Deutsche Bank, GECC, Merrill Lynch, LaSalle and NatCity, the “2004
Promissory Notes”
and
together with the 2004 Credit Agreement, the “2004
Credit Facility”);
WHEREAS,
the
2004 Credit Facility is secured by real and personal property of the Borrowers
pursuant to certain collateral documentation, including, without limitation,
a
security agreement, certain assignments of leases, and certain first lien
priority mortgage deeds of trust or deeds to secured debt, each dated on
or
about March 22, 2004 or on or about November, 2004 and UCC financing statements
(collectively, the “2004
Collateral Documents”);
WHEREAS,
the
Borrowers have requested that the Lenders hereunder provide a new credit
facility in an amount of $200,000,000, which amount may be increased to
the
amount of $300,000,000 (the “Credit
Facility”)
for
the purpose of refinancing and replacing the 2004 Credit Facility and for
the
purposes hereinafter set forth;
WHEREAS,
in
connection with the entering into this Credit Agreement and the refinancing
of
the 2004 Credit Facility, the 2004 Facility Lenders and the 2004 Administrative
Agent, have concurrently herewith assigned all of their rights, titles
and
interests in and to the 2004 Credit Facility and the 2004 Collateral Documents
in favor of the Administrative Agent hereunder, on behalf of the Lenders
hereunder and the Administrative Agent hereunder and the Lenders hereunder
are
willing to accept such assignment (the “2004
Facility Assignment Agreement”);
WHEREAS,
in
connection with such 2004 Facility Assignment, the Borrowers and the Lenders
hereunder desire to replace the 2004 Credit Facility and the terms of the
2004
Credit Agreement with this Credit Facility and this Credit Agreement, and
the
Lenders hereunder have further agreed to amend, restate and consolidate
certain
of the 2004 Collateral Documents in their entirety as further set forth
herein;
and
WHEREAS,
upon
the consummation of the 2004 Facility Assignment and subject to the terms
and
conditions set forth herein, the Lenders have agreed to make the requested
Credit Facility available to the Borrower.
NOW,
THEREFORE,
in
consideration of these premises and the mutual covenants and agreements
contained herein, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto covenant and agree as follows:
ARTICLE
I
DEFINITIONS
AND ACCOUNTING TERMS
1.01 Defined
Terms.
As
used
in this Credit Agreement, the following terms have the meanings set forth
below:
“Acquisition”
means
the
purchase or acquisition by any Person of (a) more than 50% of the Capital
Stock
with ordinary voting power of another Person or (b) all or any substantial
portion of the property (other than Capital Stock) of another Person, whether
or
not involving a merger or consolidation with such Person.
“Administrative
Agent”
means
Bank of America in its capacity as administrative agent for the Lenders
under
any of the Credit Documents, or any successor administrative agent.
“Administrative
Agent’s Fee Letter”
means
the letter agreement dated as of February 17, 2006 among the Parent, the
Arranger and the Administrative Agent, as amended and modified.
“Administrative
Agent’s Office”
means
the Administrative Agent’s address and, as appropriate, account as set forth on
Schedule 10.02,
or such
other address or account as the Administrative Agent may from time to time
notify the Borrowers and the Lenders.
“Administrative
Questionnaire”
means
an Administrative Questionnaire in a form supplied by the Administrative
Agent.
“Affiliate”
means,
with respect to any Person, another Person that directly, or indirectly
through
one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.
“Agent-Related
Persons”
means
the Administrative Agent, together with its Affiliates (including, in the
case
of Bank of America in its capacity as the Administrative Agent, the Arranger),
and the officers, directors, employees, agents and attorneys-in-fact of
such
Persons and Affiliates.
“Aggregate
Commitments”
means
the Commitments of all the Lenders.
“Aggregate
Mortgageability Amount”
means,
with respect to any pool of Borrowing Base Assets as of any date of
determination, the sum of the respective Mortgageability Amounts of each
of the
Borrowing Base Assets in such pool.
“Aggregate
Revolving Commitments”
means
the Revolving Commitments of all the Lenders.
“Aggregate
Revolving Committed Amount”
has
the
meaning provided in Section 2.01(a).
“Agreement”
has
the
meaning provided in the introductory paragraph hereof.
“Applicable
Percentage”
means
each of the following percentages per annum, as applicable, based upon
the
Consolidated Leverage Ratio as set forth in the most recent Compliance
Certificate received by the Administrative Agent pursuant to Section 6.02(a):
|
Applicable
Percentage
|
||||||
|
Pricing
Level
|
Consolidated
Leverage Ratio
|
Eurodollar
Rate Loans
|
Base
Rate Loans
|
Letter
of Credit Fees
|
Unused
Fee
|
|
|
if
usage > 50%
|
if
usage <
50%
|
|||||
|
1
|
<
3.00 to 1.00
|
0.50%
|
0.00%
|
0.50%
|
0.25%
|
0.35%
|
|
2
|
>
3.00 to 1.00 but < 3.50 to 1.00
|
0.75%
|
0.00%
|
0.75%
|
0.25%
|
0.35%
|
|
3
|
>
3.50 to 1.00 but < 4.00 to 1.00
|
1.00%
|
0.00%
|
1.00%
|
0.25%
|
0.35%
|
|
4
|
>
4.00 to 1.00 but < 4.50 to 1.00
|
1.25%
|
0.00%
|
1.25%
|
0.25%
|
0.35%
|
|
5
|
>
4.50 to 1.00 but < 5.00 to 1.00
|
1.50%
|
0.25%
|
1.50%
|
0.25%
|
0.35%
|
|
6
|
>
5.00 to 1.0
|
2.00%
|
0.75%
|
2.00%
|
0.25%
|
0.35%
|
Any
increase or decrease in the Applicable Percentage resulting from a change
in the
Consolidated Leverage Ratio shall become effective as of the first Business
Day
immediately following the date a Compliance Certificate is delivered pursuant
to
Section 6.02(a);
provided,
however,
that if
a Compliance Certificate is not delivered within ten (10) days after being
due
in accordance with such Section, then Pricing Level 6 shall apply as of
the
eleventh (11th)
day
after the date on which such Compliance Certificate was required to have
been
delivered until the first Business Day after the date on which such Compliance
Certificate is delivered. The Applicable Percentages in effect from the
Closing
Date through the date that the Parent delivers the Compliance Certificate
for
the fiscal quarter ending June 30, 2006 shall be determined based upon
Pricing Level 5.
“Approved
Fund”
means
any Fund 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.
“Arranger”
means
Banc of America Securities LLC, in its capacity as sole lead arranger and
sole
book manager.
“Assignee
Group”
means
two or more Eligible Assignees that are Affiliates of one another or two
or more
Approved Funds managed by the same investment advisor.
“Assignment
and Assumption”
means
an Assignment and Assumption substantially in the form of Exhibit D.
“Assignment
of Leases”
means
an assignment of leases, rents and profits to the Administrative Agent
with
respect to the applicable Borrower’s interests in a Borrowing Base Asset (which
assignment may be contained within the related Mortgage Instrument); provided
that each such Assignment of Leases shall, subject to the terms and conditions
of the applicable underlying lease, directly assign to the Administrative
Agent
the following: (a) all existing and future leases, subleases, tenancies,
licenses, occupancy agreements or agreements to lease all or any portion
of such
Borrowing Base Asset (including, without limitation, any applicable Facility
Lease), whether written or oral or for a definite period or month-to-month,
together with any extensions, renewals, amendments, modifications or
replacements thereof, and any options, rights of first refusal or guarantees
of
any tenant’s obligations under any lease now or hereafter in effect with respect
to the Borrowing Base Asset (individually, for the purposes of this definition,
a “Lease” and collectively, the “Leases”); and (b) all rents (including, without
limitation, base rents, minimum rents, additional rents, percentage rents,
parking, maintenance and deficiency rents and payments which are characterized
under the terms of the applicable Lease as payments of interest and/or
principal
with respect to the applicable Borrowing Base Asset), security deposits,
tenant
escrows, income, receipts, revenues, reserves, issues and profits of the
Borrowing Base Asset from time to time accruing, including, without limitation,
(i) all rights to receive payments arising under, derived from or relating
to
any Lease, (ii) all lump sum payments for the cancellation or termination
of any
Lease, the waiver of any term thereof, or the exercise of any right of
first
refusal, call option, put option or option to purchase, and (iii) the return
of
any insurance premiums or ad valorem tax payments made in advance and
subsequently refunded. In furtherance (and not limitation) of the foregoing,
each Assignment of Leases shall assign to the Administrative Agent any
and all
of the applicable Borrower’s rights to collect or receive any payments with
respect to the applicable Borrowing Base Asset. Finally, each Assignment
of
Leases shall, in any case, be in form and substance satisfactory to the
Administrative Agent in its discretion and suitable for recording in the
applicable jurisdiction; and “Assignments of Leases” means a collective
reference to each such Assignment of Leases.
“Attorney
Costs”
means
and includes all reasonable and documented fees, expenses and disbursements
of
any law firm or other external counsel and, without duplication, the allocated
reasonable and documented cost of internal legal services and all expenses
and
disbursements of internal counsel.
“Attributable
Principal Amount”
means
(a) in the case of capital leases, the amount of capital lease obligations
determined in accordance with GAAP, (b) in the case of Synthetic Leases,
an
amount determined by capitalization of the remaining lease payments thereunder
as if it were a capital lease determined in accordance with GAAP, (c) in
the
case of Securitization Transactions, the outstanding principal amount of
such
financing, after taking into account reserve amounts and making appropriate
adjustments, determined by the Administrative Agent in its reasonable judgment
and (d) in the case of Sale and Leaseback Transactions, the present value
(discounted in accordance with GAAP at the debt rate implied in the applicable
lease) of the obligations of the lessee for rental payments during the
term of
such lease).
“Audited
Financial Statements”
means
the audited consolidated balance sheet of the Parent and its consolidated
Subsidiaries for the fiscal year ended December 31, 2005, and the related
consolidated statements of earnings, shareholders’ equity and cash flows for
such fiscal year of the Parent and its consolidated Subsidiaries, including
the
notes thereto; provided, that the Administrative Agent hereby agrees that
the
Form 10-K of the Parent delivered to it by the Parent and containing information
for the fiscal year ended December 31, 2005 shall constitute all information
required to be delivered as part of the “Audited Financial Statements” for
purposes of this Agreement.
“Bank
of America”
means
Bank of America, N.A., together with its successors.
“Bankruptcy
Event”
means,
with respect to any Person, the occurrence of any of the following: (i)
the
entry of a decree or order for relief by a court or governmental agency
in an
involuntary case under any applicable Debtor Relief Law or any other bankruptcy,
insolvency or other similar law now or hereafter in effect, or the appointment
by a court or governmental agency of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such Person or
for any
substantial part of its Property or the ordering of the winding up or
liquidation of its affairs by a court or governmental agency and such decree,
order or appointment is not vacated or discharged within ninety (90) days
of its
filing; or (ii) the commencement against such Person of an involuntary
case
under any applicable Debtor Relief Law or any other bankruptcy, insolvency
or
other similar law now or hereafter in effect, or of any case, proceeding
or
other action for the appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of such Person or for any
substantial part of its Property or for the winding up or liquidation of
its
affairs, and such involuntary case or other case, proceeding or other action
shall remain undismissed for a period of ninety (90) consecutive days, or
the repossession or seizure by a creditor of such Person of a substantial
part
of its Property; or (iii) such Person shall commence a voluntary case under
any
applicable Debtor Relief Law or any other bankruptcy, insolvency or other
similar law now or hereafter in effect, or consent to the entry of an order
for
relief in an involuntary case under any such law, or consent to the appointment
of or the taking possession by a receiver, liquidator, assignee, creditor
in
possession, custodian, trustee, sequestrator (or similar official) of such
Person or for any substantial part of its Property or make any general
assignment for the benefit of creditors; or (iv) the filing of a petition
by
such Person seeking to take advantage of any Debtor Relief Law or any other
applicable Law, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts, or (v)
such
Person shall fail to contest in a timely and appropriate manner (and if
not
dismissed within ninety (90) days or shall consent to any petition filed
against
it in an involuntary case under such bankruptcy laws or other applicable
Law or
consent to any proceeding or action relating to any bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts with
respect
to its assets or existence, or (vi) such Person shall admit in writing,
or such
Person’s financial statements shall reflect, an inability to pay its debts
generally as they become due.
“BAS”
means
Banc of America Securities LLC, together with its successors.
“Base
Rate”
means
for any day a fluctuating rate per annum equal to the higher of (a) the
Federal
Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such
day as
publicly announced from time to time by Bank of America as its “prime rate.” The
“prime rate” is a rate set by Bank of America based upon various factors
including Bank of America’s costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing
some
loans, which may be priced at, above, or below such announced rate. Any
change
in the prime rate announced by Bank of America shall take effect at the
opening
of business on the day specified in the public announcement of such
change.
“Base
Rate Loan”
means
a
Loan that bears interest based on the Base Rate.
“Borrower”
and
“Borrowers”
shall
have the meanings given to such terms in the introductory paragraph
hereof.
“Borrower
Joinder Agreement”
means
a
joinder agreement in the form of Exhibit E-1
to be
executed by each new Subsidiary of the Parent that is required to become
a
Borrower in accordance with Section 6.15(a)
hereof.
“Borrower
Materials”
has
the
meaning specified in Section 6.02.
“Borrower
Representative”
has
the
meaning given to such term in Section
2.15
hereof.
“Borrowing”
means
(a) a borrowing consisting of simultaneous Loans of the same Type and,
in the
case of Eurodollar Loans, having the same Interest Period, or (b) a borrowing
of
Swing Line Loans, as appropriate.
“Borrowing
Base Amount”
means
an amount equal to the lesser of: (a) the Aggregate Revolving Committed
Amount,
(b) the Aggregate Mortgageability Amount as of such date for the Qualified
Borrowing Base Assets and (c) an amount equal to (i) sixty-five percent
(65%)
multiplied
by
(ii) the
Collateral Value as of such date for the Qualified Borrowing Base
Assets.
“Borrowing
Base Asset”
means
a
Real Property Asset which, as of any date of determination, satisfies all
of the
following requirements: (a) such Real Property Asset is 100% owned by a
Borrower
in fee simple or pursuant to the terms of an Eligible Ground Lease; (b)
the
Administrative Agent, on behalf of the Lenders, shall have received each
of the
Borrowing Base Asset Deliverables with respect to such Real Property Asset,
in
each case in form and substance acceptable to the Administrative Agent
and
Required Lenders in their discretion; (c) such Real Property Asset is not
subject to any Lien (other than a Permitted Lien) or any Negative Pledge;
(d)
such Real Property Asset is free of all material mechanical and structural
defects, environmental conditions (as evidenced by environmental reports
acceptable to Administrative Agent) or other adverse matters except for
defects,
conditions or matters individually or collectively which are not material
to the
profitable operation of such Real Property Asset and the most recently-delivered
FIRREA-compliant MAI appraisal with respect to such Real Property Asset
is
acceptable to the Administrative Agent in its discretion; (e) such Real
Property
Asset has been fully developed for use as a skilled nursing facility, domestic
assisted living facility, independent living facility, rehabilitation hospital
or other healthcare facility acceptable to the Administrative Agent and
Required
Lenders; (f) such Real Property Asset is leased to and operated by an Eligible
Tenant pursuant to a Facility Lease reasonably acceptable to the Administrative
Agent; (g) no required rental payment, principal or interest payment, payments
of real property taxes or payments of premiums on insurance policies payable
to
the applicable Borrower-owner with respect to such Real Property Asset
is past
due beyond the earlier of the applicable grace period with respect thereto,
if
any, and sixty (60) days; (h) no event of default has occurred and is
then-continuing under any Material Contract applicable to such Borrowing
Base
Asset; (i) no Material Contract applicable to such Borrowing Base Asset
shall
have been terminated without the prior written consent of the Required
Lenders;
(j) no condemnation or condemnation proceeding shall have been instituted
(and
remain undismissed for a period of ninety (90) consecutive days), in each
case, with respect to a material portion of the Real Property Asset; (k)
no
material casualty event shall have occurred with respect to the improvements
located on such Real Property Asset which is not able to be fully remediated
with available insurance proceeds; and (l) no Hazardous Substances are
located
on or under such Real Property Asset and no other environmental conditions
exist
in connection with such Real Property Asset which constitute a violation
of any
Environmental Law. “Borrowing
Base Assets”
means
a
collective reference to all Borrowing Base Assets in existence at any given
time.
“Borrowing
Base Asset Deliverables”
means,
with respect to any Real Property Asset which is proposed for qualification
as a
“Borrowing Base Asset” hereunder, a collective reference to each of the
following (with each such item to be in form and substance acceptable to
the
Administrative Agent):
(a) a
fully
executed and notarized Mortgage Instrument and Assignments of Leases (or
a fully
executed and notarized amendment to such existing Mortgage Instrument and/or
Assignments of Leases) with respect to such Real Property Asset and a related
legal opinion from special local counsel to the Borrowers opining as to
the
propriety of the form of such documents for recording in the applicable
jurisdiction and such other matters as may be required by the Administrative
Agent;
(b) a
fully
executed copy of the Facility Lease with respect to such Real Property
Asset,
together with an estoppel certificate from the applicable Eligible Tenant
and a
subordination, non-disturbance and attornment agreement with respect to
such
Facility Lease;
(c) in
the
case of a Real Property Asset which constitutes a leasehold interest, evidence
that the applicable lease, a memorandum of lease with respect thereto,
or other
evidence of such lease in form and substance reasonably satisfactory to
the
Administrative Agent, has been properly recorded in all places to the extent
necessary or desirable, in the reasonable judgment of the Administrative
Agent,
so as to enable the Mortgage Instrument encumbering such leasehold interest
to
effectively create a valid and enforceable first priority lien (subject
to
Permitted Liens and required landlord consents) on such leasehold interest
in
favor of the Administrative Agent (or such other Person as may be required
or
desired under local law) for the benefit of Lenders and that such lease
qualifies as an Eligible Ground Lease hereunder, together with such estoppels,
waivers and/or consents from the lessor under such Eligible Ground Lease
as are
required by the terms thereof or otherwise reasonably requested by the
Administrative Agent;
(d) maps
or
plats of an as-built survey of the site constituting the Real Property
Asset
sufficient in all cases to delete the standard survey exception from the
applicable Mortgage Policy;
(e) a
FIRREA-compliant MAI appraisal, commissioned, reviewed and approved by
the
Administrative Agent (or otherwise acceptable to the Administrative Agent,
in
its discretion) with respect to such Real Property Asset;
(f) evidence
as to the compliance of such Real Property Asset and the improvements related
thereto with applicable zoning and use requirements;
(g) an
ALTA
mortgagee title insurance policy (or its equivalent in non-ALTA jurisdictions)
with respect to the applicable Real Property Asset (the “Mortgage Policy”),
assuring the Lender that the Mortgage Instrument creates a valid and enforceable
first priority mortgage lien on the applicable Real Property Asset, free
and
clear of all defects and encumbrances except Permitted Liens, which Mortgage
Policy shall (i) be in an amount acceptable to the Administrative Agent,
(ii) be
from an insurance company reasonably acceptable to the Administrative Agent,
(iii) include such available endorsements and reinsurance as the Administrative
Agent may reasonably require and (iv) otherwise satisfy the reasonable
title
insurance requirements of the Administrative Agent;
(h) evidence
as to whether the applicable Real Property Asset is in an area designated
by the
Federal Emergency Management Agency as having special flood or mud slide
hazards
(a “Flood
Hazard Property”) and if such Real Property Asset is a Flood Hazard Property,
(i) the applicable Borrower’s written acknowledgment of receipt of written
notification from the Administrative Agent (A) as to the fact that such
Real
Property Asset is a Flood Hazard Property and (B) as to whether the community
in
which each such Flood Hazard Property is located is participating in the
National Flood Insurance Program and (ii) copies of insurance policies
or
certificates of insurance evidencing flood insurance satisfactory to the
Administrative Agent and naming the Administrative Agent as sole loss payee
on
behalf of the Lenders under a standard mortgagee endorsement;
(i) copies
of
all existing material subleases which would be required to be disclosed
on Part
V of Schedule
5.12
hereof
with respect to such Real Property Asset if approved as a Borrowing Base
Asset;
(j) evidence
that the Tenant under the applicable Facility Lease is an Eligible
Tenant;
(k) a
Phase I
environmental assessment from an environmental consultant acceptable to
the
Administrative Agent, dated as of a date acceptable to the Administrative
Agent
and indicating that, as of such date, no Hazardous Substances or other
conditions on, under or with respect to the applicable Real Property Asset
constitute a violation of any Environmental Laws and that, in any case,
no
commercially unreasonable amount of any Hazardous Substances are located
on or
under such Real Property Asset; and
(l) evidence
of insurance coverage with respect to such Real Property Asset meeting
the
requirements set forth herein and establishing the Administrative Agent
as loss
payee, as required pursuant to the terms hereof.
“Borrowing
Base Certificate”
shall
mean a certificate substantially in the form of Exhibit C-2
hereto
delivered to the Administrative Agent pursuant to Section 6.02(b)
or more
frequently at the option of the Borrower Representative and (a) setting
forth
each Real Property Asset of the Borrowers, identifying which such Real
Property
Assets are Borrowing Base Assets, which such Borrowing Base Assets are
Qualified
Borrowing Base Assets used and certifying the Collateral Value and
Mortgageability Amount with respect to each such Qualified Borrowing Base
Asset,
(b) certifying (based upon its own information and the information made
available to the Parent by the applicable Tenants, which information the
Parent
believes in good faith to be is true and correct in all material respects)
(i)
as to the calculation of the Borrowing Base Amount as of the date of such
certificate and (ii) that each Real Property Asset used in the calculation
of
the Borrowing Base Amount meets each of the criteria for qualification
as a
Borrowing Base Asset and (c) providing such other information with respect
to
the Real Property Assets, Borrowing Base Assets and/or the Qualified Borrowing
Base Assets as the Administrative Agent may reasonably require.
“Braswell
Indebtedness”
means
that certain Indebtedness of Regency Health Services, Inc.
owing to C. Allen Braswell, Braswell Management, Inc., Dorothy Norton
and Cecil Mays pursuant to that certain Promissory Note Secured
by Deeds of Trust in the original principal amount
of $4,114,035 (of which
approximately $2,961,607 is outstanding as of the Closing
Date).
“Business”
or
“Businesses”
means,
at
any time, a collective reference to the businesses operated by the respective
Borrowers or Parent, as applicable, at such time.
“Business
Day”
means
any day other than a Saturday, Sunday or other day on which commercial
banks are
authorized to close under the Laws of, or are in fact closed in, in the
State of
New
York
or the state
where the Administrative Agent’s Office is located and, if such day relates to
any Eurodollar Loan, means any such day on which dealings in Dollar deposits
are
conducted by and between banks in the London interbank eurodollar
market.
“Capital
Lease”
means
a
lease that would be capitalized on a balance sheet of the lessee prepared
in
accordance with GAAP.
“Capital
Stock”
means
(a) in the case of a corporation, capital stock, (b) in the case of an
association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of capital stock, (c)
in the
case of a partnership, partnership interests (whether general or limited),
(d)
in the case of a limited liability company, membership interests and (e)
any
other interest or participation that confers on a Person the right to receive
a
share of the profits and losses of, or distributions of assets of, the
issuing
Person.
“Cash
Collateral”
means
cash or deposit account balances pursuant to documentation in form and
substance
reasonably satisfactory to the Administrative Agent and the L/C Issuer
pledged
and deposited with or delivered to the Administrative Agent, for the benefit
of
the L/C Issuer and the Lenders, as collateral for the L/C
Obligations.
“Cash
Equivalents”
means
(a) securities issued or directly and fully guaranteed or insured by (i)
the
United States or any agency or instrumentality thereof (provided that the
full
faith and credit of the United States is pledged in support thereof) having
maturities of not more than twelve months from the date of acquisition,
(b) time
deposits and certificates of deposit of (i) any Lender, (ii) any domestic
commercial bank of recognized standing having capital and surplus in excess
of
$500,000,000 or (iii) any bank whose short-term commercial paper rating
from
S&P is at least A-1 or the equivalent thereof or from Moody’s is at least
P-1 or the equivalent thereof (each an “Approved
Bank”),
in
each case with maturities of not more than two hundred seventy (270) days
from
the date of acquisition, (c) commercial paper and variable or fixed rate
notes
issued by any Approved Bank (or by the parent company thereof) or any variable
rate notes issued by, or guaranteed by, any domestic corporation rated
A-1 (or
the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof)
or better by Moody’s and maturing within six months of the date of acquisition,
(d) repurchase agreements entered into by any Person with a bank or trust
company (including any of the Lenders) or recognized securities dealer
having
capital and surplus in excess of $500,000,000 for direct obligations issued
by
or fully guaranteed by the United States in which such Person shall have
a
perfected first priority security interest (subject to no other Liens)
and
having, on the date of purchase thereof, a fair market value of at least
100% of
the amount of the repurchase obligations and (e) Investments (classified
in
accordance with GAAP as current assets) in money market investment programs
registered under the Investment Company Act of 1940, as amended, that are
administered by reputable financial institutions having capital of at least
$500,000,000 and the portfolios of which are limited to Investments of
the
character described in the foregoing subclauses hereof.
“Change
of Control”
means
the occurrence of any of the following events: (i) any Person or two or
more
Persons acting in concert shall have acquired beneficial ownership, directly
or
indirectly, of, or shall have acquired by contract or otherwise, or shall
have
entered into a contract or arrangement that, upon consummation, will result
in
its or their acquisition of or control over, voting stock of the Parent
(or
other securities convertible into such voting stock) representing thirty-five
percent (35%) or more of the combined voting power of all voting stock
of the
Parent, (ii) during any period of up to twenty-four (24) consecutive months,
commencing after the Closing Date, individuals who at the beginning of
such
twenty-four (24) month period were directors of the Parent (together with
any
new director whose election by the Parent’s Board of Directors or whose
nomination for election by the Parent’s shareholders was approved by a vote of
at least two-thirds of the directors then still in office who either were
directors at the beginning of such period or whose election or nomination
for
election was previously so approved) cease for any reason to constitute
a
majority of the directors of the Parent then in office. As used herein,
“beneficial ownership” shall have the meaning provided in Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of
1934,
(iii) the Parent shall fail to own 100% of the Capital Stock of each of
the
Borrowers or (iv) the occurrence of a "Change of Control" or any equivalent
term or concept under either of the Senior Note Indentures.
“Closing
Date”
means
the date hereof.
“Collateral” means
a
collective reference to all real and personal Property (including without
limitation, the Borrowing Base Assets) with respect to which Liens in favor
of
the Administrative Agent are either executed, identified or purported to
be
granted pursuant to and in accordance with the terms of the Collateral
Documents.
“Collateral
Value”
means,
with respect to any Real Property Asset, an amount equal to the “as-is”
appraised value of such Real Property Asset, as determined by the most
recently
delivered FIRREA-compliant MAI appraisals commissioned, reviewed and approved
by
the Administrative Agent or otherwise acceptable to the Administrative
Agent in
its discretion; provided,
however,
notwithstanding the foregoing, at all times prior to April 7, 2006 (including,
without limitation, on the Closing Date hereof), the term “Collateral Value”,
with respect to any Real Property Asset, shall mean an amount equal to
the
“as-is” appraised value of such Real Property Asset, as set forth in the most
recently delivered FIRREA-compliant MAI appraisals commissioned reviewed
and
approved by the 2004 Administrative Agent in connection with the 2004 Credit
Agreement.
“Collateral
Documents” means
a
collective reference to the Mortgage Instruments, the Security Agreement,
the
Assignments of Leases and any UCC financing statements securing payment
hereunder, or any other documents securing the Obligations under this Credit
Agreement or any other Credit Document.
“Commitment”
means
the Revolving Commitment, the L/C Commitment and the Swing Line
Commitment.
“Commitment
Period”
means
the period from and including the Closing Date to the earlier of (a) in
the case
of Revolving Loans and Swing Line Loans, the Termination Date, and, in
the case
of the Letters of Credit, the Letter of Credit Expiration Date, or (b)
the date
on which the Revolving Commitments shall have been terminated as provided
herein.
“Compliance
Certificate”
means
a
certificate substantially in the form of Exhibit C-1;
provided, that each such Compliance Certificate shall, in any case, include
(without limitation): (a) a Borrowing Base Certificate in the form of
Exhibit C-2;
(b) an
updated version of Schedules 5.11,
5.12,
5.13
and
5.18,
along
with a summary of changes made to such schedules since the previous delivery
thereof; provided, further, that upon the delivery of such updated schedules,
then Schedule 5.11,
Schedule 5.12,
Schedule 5.13
and
Schedule 5.18
shall
each be deemed to have been amended and restated to read in accordance
with the
applicable updated schedule and the representations and warranties with
respect
thereto shall apply to such amended and restated schedules and (c) supporting
documents and materials reasonably required by the Administrative Agent
for the
evidencing of the calculations and certifications made in connection
therewith.
“Confidential
Information”
has
the
meaning provided in Section 10.08.
“Consolidated
Adjusted EBITDA”
means,
for the most recently ended fiscal quarter for which financial information
has
been delivered to the Administrative Agent pursuant to the terms of this
Credit
Agreement, the sum (which will be an annualized amount) of (a) Consolidated
EBITDA as of such date (as calculated on an annualized basis for the most
recently ended fiscal quarter for which financial information has been
delivered
to the Administrative Agent pursuant to the terms of this Credit Agreement)
plus
(b) an
annualized amount based on the Special Charges Adjustment (without duplication
to the extent included in the determination of Consolidated Interest Expense
and
added back to net income in the calculation of Consolidated EBITDA) with
respect
to the applicable fiscal quarter.
“Consolidated
EBITDA”
means,
for the Consolidated Parties as of most recently ended fiscal quarter for
which
financial information has been delivered to the Administrative Agent pursuant
to
the terms of this Credit Agreement, the annualized sum of (a) net income
of the
Consolidated Parties, in each case, excluding any non-recurring or extraordinary
gains and losses, plus
(b) an
amount which, in the determination of net income for such fiscal quarter
pursuant to clause (a) above, has been deducted for or in connection with
(i) Consolidated Interest Expense (plus, amortization of deferred financing
costs, to the extent included in the determination of Consolidated Interest
Expense per GAAP), (ii) income taxes, and (iii) depreciation and amortization,
all determined in accordance with GAAP.
“Consolidated
Fixed Charge Coverage Ratio”
means,
as of any date of determination, the ratio of (a) Consolidated Adjusted
EBITDA
to (b) Consolidated Fixed Charges.
“Consolidated
Fixed Charges”
means,
for the Consolidated Parties for the most recently ended fiscal quarter
for
which financial information has been delivered to the Administrative Agent
pursuant to the terms of this Credit Agreement, the annualized sum of (a)
Consolidated Interest Expense (excluding, for purposes hereof and without
duplication, Special Charges to the extent included in the calculation
of
Consolidated Interest Expense) for such quarter, plus
(b)
current scheduled principal payments of Funded Debt for such quarter (including,
for purposes hereof, current scheduled reductions in commitments, but excluding
any payment of principal under the Credit Documents and any “balloon” payment or
final payment at maturity that is significantly larger than the scheduled
payments that preceded it) for a period beginning the day after the date
of
determination and lasting for the same length of time as the applicable
period
referenced at the beginning of this definition, plus
(c)
dividends and distributions on preferred stock, if any, for such quarter,
in
each case, on a consolidated basis determined in accordance with
GAAP.
“Consolidated
Funded Debt”
means,
as of any date of determination, all Funded Debt of the Consolidated Parties
determined on a consolidated basis.
“Consolidated
Interest Expense”
means,
for the Consolidated Parties for the most recently ended fiscal quarter
for
which financial information has been delivered to the Administrative Agent
pursuant to the terms of this Credit Agreement, all interest expense and
letter
of credit fee expense, on a consolidated basis in accordance with GAAP
during
such period, annualized; provided, that interest expenses shall, in any
event,
(a) include the interest component under Capital Leases and the implied
interest
component under Securitization Transactions and (b) exclude the amortization
of
any deferred financing fees.
“Consolidated
Leverage Ratio”
means,
as of any date of determination, the ratio of (a) Consolidated Funded Debt
to
(b) Consolidated Adjusted EBITDA (as calculated on an annualized basis
for the
most recently ended fiscal quarter for which financial information has
been
delivered to the Administrative Agent pursuant to the terms of this Credit
Agreement); provided, that for purposes of calculating the “Consolidated
Leverage Ratio,” the Consolidated EBITDA component of Consolidated Adjusted
EBITDA shall be adjusted to give pro forma effect to assets of the Consolidated
Parties acquired during the fiscal quarter for which the net income component
for such Consolidated EBITDA calculation is calculated by annualizing the
Consolidated EBITDA generated by such asset over the period such asset
is
actually owned by a Consolidated Party and adding such amount to the base
Consolidated EBITDA calculation for such Consolidated Parties (and thereby
to
the Consolidated Adjusted EBITDA calculations).
“Consolidated
Parties”
means
the Parent and its consolidated subsidiaries, as determined in accordance
with
GAAP.
“Consolidated
Subsidiary”
means
at any date any Subsidiary or other entity the accounts of which would
be
consolidated with those of the Parent in its consolidated financial statements
if such statements were prepared as of such date.
“Consolidated
Tangible Net Worth”
means,
for the Consolidated Parties as of any date of determination, (a) stockholders’
equity on a consolidated basis determined in accordance with GAAP, but
with no
upward adjustments due to any revaluation of assets, less (b) all Intangible
Assets, plus (c) all accumulated depreciation, all determined in accordance
with
GAAP; provided,
that
the Consolidated Parties will be permitted to exclude (i.e. add back to
stockholder’s equity) up to $25,000,000 in potential future impairment charges
incurred during the term of this Credit Agreement (such exclusions to be
clearly
reflected, however, in the calculations of Consolidated Tangible Net Worth
delivered to the Administrative Agent by the Borrowers from time to time
pursuant to the terms of this Credit Agreement.
“Contractual
Obligation”
means,
as to any Person, any provision of any security issued by such Person or
of any
agreement, instrument or other undertaking to which such Person is a party
or by
which it or any of its property is bound.
“Control”
means
the possession, directly or indirectly, of the power 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. Without limiting the generality
of the foregoing, a Person shall be deemed to be Controlled by another
Person if
such other Person possesses, directly or indirectly, power to vote twenty-five
percent (25%) or more of the securities having ordinary voting power for
the
election of directors, managing general partners or the equivalent.
“COSO”
means
the Committee of Sponsoring Organizations of the Treadway
Commission.
“Credit
Agreement”
has
the
meaning given to such term in the introductory paragraph hereof.
“Credit
Documents”
means
this Credit Agreement, the Collateral Documents, the Notes, the Guaranty,
the
Administrative Agent’s Fee Letter, the Letters of Credit, the Lender Joinder
Agreements, the Joinder Agreements, the Borrowing Base Certificates and
the
Compliance Certificates.
“Credit
Party”
means,
as of any date, the Borrower or any Guarantor which is a party to the Guaranty
as of such date; and “Credit
Parties”
means
a
collective reference to each of them.
“Daily
Floating Eurodollar Rate”
means,
for each day, a fluctuating rate of interest equal to Eurodollar Rate applicable
on such day for an Interest Period of one month beginning two (2) Business
Days thereafter. The Daily Floating Eurodollar Rate shall be determined
and
adjusted on each Business Day and shall remain in effect until the next
Business
Day.
“Daily
Unused Fee”
means,
for any day during the Commitment Period, an amount equal to (a) a daily
percentage rate derived from the then-applicable per annum Applicable Percentage
multiplied
by (b)
the amount by which the Aggregate Revolving Commitments exceed the sum
of the
Outstanding Amount of Revolving Obligations (excluding the amount of any
then-outstanding Swing Line Loans) as of the beginning of such day.
“Debtor
Relief Laws”
means
the Bankruptcy Code of the United States, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or
similar
debtor relief Laws of the United States or other applicable jurisdictions
from
time to time in effect and affecting the rights of creditors
generally.
“Default”
means
any event, act or condition that, with notice, the passage of time, or
both,
would constitute an Event of Default.
“Default
Rate”
means
an interest rate equal to (a) the Base Rate plus (b) the Applicable Percentage,
if any, applicable to Base Rate Loans plus (c) three percent (3%) per annum;
provided, however, that with respect to a Eurodollar Loan, the Default
Rate
shall be an interest rate equal to the interest rate (including any Applicable
Percentage) otherwise applicable to such Loan plus three percent (3%) per
annum,
in each case to the fullest extent permitted by applicable Law.
“Defaulting
Lender”
means
any Lender that (a) has failed to fund any portion of the Loans, participations
in L/C Obligations or participations in Swing Line Loans required to be
funded
by it hereunder within one Business Day of the date required to be funded
by it
hereunder and has not cured such failure prior to the date of determination,
(b)
has otherwise failed to pay over to the Administrative Agent or any other
Lender
any other amount required to be paid by it hereunder within one Business
Day of
the date when due, unless the subject of a good faith dispute, and has
not cured
such failure prior to the date of determination, or (c) has been deemed
insolvent or become the subject of a bankruptcy or insolvency
proceeding.
“Disposition”
or
“Dispose”
means
the sale, transfer, license, lease or other disposition (including any
Sale and
Leaseback Transaction) of any property by any Person, including any sale,
assignment, transfer or other disposal, with or without recourse, of any
notes
or accounts receivable or any rights and claims associated
therewith.
“Dollar”
or
“$”
means
the lawful currency of the United States.
“Domestic
Subsidiary”
means
any Subsidiary that is organized under the laws of any State of the United
States or the District of Columbia.
“EBITDA”
means,
for any Person or group of Persons, as applicable, for the most recently
ended
fiscal quarter for which financial information has been delivered to the
Administrative Agent pursuant to the terms of this Credit Agreement, the
annualized sum of (a) net income of such Person(s), in each case, excluding
any
non-recurring or extraordinary gains and losses, plus (b) an amount which,
in
the determination of net income for such fiscal quarter pursuant to
clause (a) above, has been deducted for or in connection with (i)
Consolidated Interest Expense, (ii) income taxes, and (iii) depreciation
and
amortization, all determined in accordance with GAAP.
“Eligible
Assignee”
means
(a)
a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d) any
other
Person (other than a natural person) approved by (i) the Administrative
Agent
(such approval not to be unreasonably withheld), and (ii) unless an Event
of
Default has occurred and is continuing, the Borrower Representative (each
such
approval not to be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, “Eligible Assignee” shall not include the Parent
or any of the Parent’s Affiliates or Subsidiaries.
“Eligible
Ground Lease”
means,
at any time, a ground lease (a) under which a Borrower is the lessee or
holds
equivalent rights and is the fee owner of the improvements located thereon,
(b)
that
has
a remaining term of not less than thirty (30) years; provided,
however,
with
respect to that certain ground lease covering properties located at 200
Alabama
Avenue, Muscle Shoals, Alabama, 500 John Aldridge Drive, Tuscumbia, Alabama
and
813 Keeler Lane, Tuscumbia, Alabama, such remaining term may be less than
thirty
(30) years provided that such Borrower at all times possesses a valid and
enforceable irrevocable option to purchase the fee interest in such properties
with no conditions or contingencies other than the payment of a sum of
less than
$1,000.00,
(c)
under which any required rental payment, principal or interest payment
or other
payment due under such lease from such Borrower to the ground lessor is
not more
than sixty (60) days past due and any required rental payment, principal or
interest payment or other payment due to such Borrower under any sublease
of the
applicable real property lessor is not more than sixty (60) days past due,
(d) where no party to such lease is subject to a then-continuing Bankruptcy
Event, (e) such ground lease (or a related document executed by the applicable
ground lessor) contains customary provisions protective of any lender to
the
lessee and (f) where the Borrower’s interest in the underlying Real Property
Asset or the lease is not subject to (i) any Lien other than Permitted
Liens and
other encumbrances acceptable to the Administrative Agent and the Required
Lenders, in their discretion, or (ii) any Negative Pledge.
“Eligible
Tenant”
means
a
Tenant which (a) is not in arrears on any required rental payment, principal
or
interest payment, payments of real property taxes or payments of premiums
on
insurance policies with respect to its lease beyond the later of (i) the
applicable grace period with respect thereto, if any, and (ii) forty five
(45)
days; (b) is not subject to a then-continuing Bankruptcy Event; and (c)
is
reasonably acceptable in all material respects to the Administrative Agent
and
the Required Lenders (it being understood that for purposes of this clause
(c),
each Tenant set forth on Schedule
5.12
hereto
on the Closing Date is deemed acceptable).
“Environmental
Laws”
means
any and all federal, state, local, and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating
to
pollution and the protection of the environment or the release of any materials
into the environment, including those related to hazardous substances or
wastes,
air emissions and discharges to waste or public systems.
“Equity
Transaction”
means,
with respect to any member of the Consolidated Parties, any issuance or
sale of
shares of its Capital Stock, other than an issuance (a) to a Consolidated
Party,
(b) in connection with a conversion of debt securities to equity, (c) in
connection with the exercise by a present or former employee, officer or
director under a stock incentive plan, stock option plan or other equity-based
compensation plan or arrangement, or (d) in connection with any Acquisition
permitted hereunder.
“ERISA”
means
the Employee Retirement Income Security Act of 1974.
“ERISA
Affiliate”
means
any trade or business (whether or not incorporated) under common control
with
the Parent within the meaning of Section 414(b) or (c) of the Internal
Revenue Code (and Sections 414(m) and (o) of the Internal Revenue Code for
purposes of provisions relating to Section 412 of the Internal Revenue
Code).
“ERISA
Event”
means
(a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal
by the
Parent or any ERISA Affiliate from a Pension Plan subject to Section 4063
of ERISA during a plan year in which it was a substantial employer (as
defined
in Section 4001(a)(2) of ERISA) or a cessation of operations that is
treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete
or partial withdrawal by the Parent or any ERISA Affiliate from a Multiemployer
Plan or notification that a Multiemployer Plan is in reorganization; (d)
the
filing of a notice of intent to terminate, the treatment of a Plan amendment
as
a termination under Sections 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan;
(e)
an event or condition that could reasonably be expected to constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the
Parent or any ERISA Affiliate.
“Eurodollar
Loan”
means
a
Loan that bears interest at a rate based on the Eurodollar Rate.
“Eurodollar
Base Rate”
means,
for any Interest Period with respect to any Eurodollar Loan:
(a) for
such
Interest Period, the rate per annum equal to the British Bankers Association
LIBOR Rate (“BBA
LIBOR”),
as
published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from
time to
time) at approximately 11:00 a.m., London time, two Business Days prior to
the commencement of such Interest Period, for Dollar deposits (for delivery
on
the first day of such Interest Period) with a term equivalent to such Interest
Period, or
(b) If
such
rate is not available at such time for any reason, then the “Eurodollar Base
Rate” for such Interest Period shall be the rate per annum determined by the
Administrative Agent to be the rate at which deposits in Dollars for delivery
on
the first day of such Interest Period in same day funds in the approximate
amount of the Eurodollar Rate Loan being made, continued or converted by
Bank of
America and with a term equivalent to such Interest Period would be offered
by
Bank of America’s London Branch to major banks in the London interbank
eurodollar market at their request at approximately 11:00 a.m. (London
time) two Business Days prior to the commencement of such Interest
Period..
“Eurodollar
Rate”
means
for any Interest Period with respect to any Eurodollar Loan, a rate per
annum
determined by the Administrative Agent pursuant to the following
formula:
|
Eurodollar
Rate =
|
Eurodollar
Base Rate
1.00
- Eurodollar Reserve Percentage
|
“Eurodollar
Reserve Percentage”
means,
for any day during any Interest Period, the reserve percentage (expressed
as a
decimal, carried out to five decimal places) in effect on such day, whether
or
not applicable to any Lender, under regulations issued from time to time
by the
FRB for determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as “Eurocurrency liabilities”). The Eurodollar
Rate for each outstanding Eurodollar Rate Loan shall be adjusted automatically
as of the effective date of any change in the Eurodollar Reserve
Percentage.
“Event
of Acceleration”
means
any of the events or conditions set forth in Sections 8.01(f),
(g)
or
(j)
with
respect to the Parent or any Borrower.
“Event
of Default”
has
the
meaning provided in Section 8.01.
"Existing
Letters of Credit"
means
the Letters of Credit identified on Schedule
1.01.
“Extension
of Credit”
means
(i) any Borrowing and (ii) any L/C Credit Extension.
“Facility
Lease”
means
a
lease or master lease with respect to any Real Property Asset owned or
ground
leased by a Borrower from the applicable Borrower as lessor, to an Eligible
Tenant, which, in the reasonable judgment of the Administrative Agent,
is a
triple net lease such that such Eligible Tenant is required to pay all
taxes,
utilities, insurance, maintenance, casualty insurance payments and other
expenses with respect to the subject Real Property Asset (whether in the
form of
reimbursements or additional rent) in addition to the base rental payments
required thereunder such that net operating income for such Real Property
Asset
(before non-cash items) equals the base rent paid thereunder;
provided, that each such lease or master lease shall be in form and substance
reasonably satisfactory to the Administrative Agent.
“Federal
Funds Rate”
means,
for any day, the rate per annum equal to the weighted average of the rates
on
overnight federal funds transactions with members of the Federal Reserve
System
arranged by federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Business Day immediately succeeding such
day;
provided that (a) if such day is not a Business Day, the Federal Funds
Rate for
such day shall be such rate on such transactions on the immediately preceding
Business Day as so published on the immediately succeeding Business Day,
and (b)
if no such rate is so published on such immediately succeeding Business
Day, the
Federal Funds Rate for such day shall be the average rate (rounded upward,
if
necessary, to the next 1/100th
of 1%)
charged to Bank of America on such day on such transactions as determined
by the
Administrative Agent.
“Foreign
Lender”
has
the
meaning provided in Section 10.15(a)(i).
“Foreign
Subsidiary”
means
any Subsidiary that is not a Domestic Subsidiary.
“FRB”
means
the Board of Governors of the Federal Reserve System of the United
States.
“Fund”
means
any Person (other than a natural person) engaged in making, purchasing,
holding
or otherwise investing in commercial loans and similar extensions of credit
in
the ordinary course of its business.
“Funded
Debt”
means,
as to any Person (or consolidated group of Persons) at a particular time,
without duplication, all of the following, whether or not included as
indebtedness or liabilities in accordance with GAAP:
(a) all
obligations for borrowed money, whether current or long-term (including
the
Obligations hereunder), and all obligations evidenced by bonds, debentures,
notes, loan agreements or other similar instruments;
(b) all
purchase money indebtedness (including indebtedness and obligations in
respect
of conditional sales and title retention arrangements, except for customary
conditional sales and title retention arrangements with suppliers that
are
entered into in the ordinary course of business) and all indebtedness and
obligations in respect of the deferred purchase price of property or services
(other than trade accounts payable incurred in the ordinary course of business
and payable on customary trade terms);
(c) all
direct obligations under letters of credit (including standby and commercial),
bankers’ acceptances and similar instruments (including bank guaranties, surety
bonds, comfort letters, keep-well agreements and capital maintenance agreements)
to the extent such instruments or agreements support financial, rather
than
performance, obligations;
(d) the
Attributable Principal Amount of capital leases and Synthetic
Leases;
(e) the
Attributable Principal Amount of Securitization Transactions;
(f) all
preferred stock and comparable equity interests providing for mandatory
redemption, sinking fund or other like payments;
(g) Support
Obligations in respect of Funded Debt of another Person (other than Persons
in
such group, if applicable);
(h) Funded
Debt of any partnership or joint venture or other similar entity in which
such
Person is a general partner or joint venturer, and, as such, has personal
liability for such obligations, but only to the extent there is recourse
to such
Person (or, if applicable, any Person in such consolidated group) for payment
thereof.
For
purposes hereof, the amount of Funded Debt shall be determined based on
the
outstanding principal amount in the case of borrowed money indebtedness
under
clause (a) and purchase money indebtedness and the deferred purchase
obligations under clause (b), based on the maximum amount available to be
drawn in the case of letter of credit obligations and the other obligations
under clause (c), and based on the amount of Funded Debt that is the
subject of the Support Obligations in the case of Support Obligations under
clause (g). For purposes of clarification, “Funded Debt” of Person
constituting a consolidated group shall not include inter-company indebtedness
of such Persons, general accounts payable of such Persons which arise in
the
ordinary course of business, accrued expenses of such Persons incurred
in the
ordinary course of business or minority interests in joint ventures or
limited
partnerships (except to the extent set forth in clause (h)
above).
“Funds
From Operations”
means,
with respect to the immediately prior fiscal quarter period, the Parent’s net
income (or loss), plus depreciation and amortization and after adjustments
for
unconsolidated partnerships and joint ventures as hereafter provided.
Notwithstanding contrary treatment under GAAP, for purposes hereof, (a)
“Funds
From Operations” shall include, and be adjusted to take into account, the
Borrower’s interests in unconsolidated partnerships and joint ventures, on the
same basis as consolidated partnerships and subsidiaries, as provided in
the
“white paper” issued in April 2002 by the National Association of Real
Estate Investment Trusts, a copy of which has been provided to the
Administrative Agent and the Lenders and (b) net income (or loss) shall
not
include gains (or, if applicable, losses) resulting from or in connection
with
(i) restructuring of indebtedness, (ii) sales of property, (iii) sales
or
redemptions of preferred stock, or (iv) any other Special Charges.
“GAAP”
means
generally accepted accounting principles in effect in the United States
as set
forth in the opinions and pronouncements of the Accounting Principles Board
and
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board from time to
time
applied on a consistent basis, subject to the provisions of Section 1.03.
“Governmental
Authority”
means
any nation or government, any state or other political subdivision thereof,
and
any agency, authority, instrumentality, regulatory body, court, administrative
tribunal, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
“Guarantor”
means,
as of any date, the Parent or any Subsidiary Guarantor which is a party
to the
Guaranty as of such date; and “Guarantors”
means
a
collective reference to each of them.
“Guaranty”
means
the guaranty in the form of Exhibit
G
dated as
of the date hereof executed by the Parent and the existing Subsidiary
Guarantors, as amended, supplemented or otherwise modified from time to
time and
as the same may be joined by Persons that become Subsidiary Guarantors
following
the date hereof.
“Hazardous
Substance”
means
any toxic or hazardous substance, including petroleum and its derivatives
regulated under the Environmental Laws.
“Healthcare
Facilities”
means
any skilled nursing facilities, mentally retarded and developmentally disabled
facilities, rehab hospitals, long term acute care facilities, intermediate
care
facilities for the mentally disabled, medical office buildings, domestic
assisted living facilities, independent living facilities or Alzheimer's
care
facilities and any ancillary businesses that are incidental to the
foregoing.
“Healthcare
Laws”
has
the
meaning given to such term in Section
5.19(a)
hereof.
“HMO”
means
any health maintenance organization, managed care organization, any Person
doing
business as a health maintenance organization or managed care organization,
or
any Person required to qualify or be licensed as a health maintenance
organization or managed care organization under applicable federal or state
law
(including, without limitation, HMO Regulations).
“Indebtedness”
means,
as to any Person at a particular time, without duplication, all of the
following, whether or not included as indebtedness or liabilities in accordance
with GAAP:
(a) all
Funded Debt;
(b) all
contingent obligations under letters of credit (including standby and
commercial), bankers’ acceptances and similar instruments (including bank
guaranties, surety bonds, comfort letters, keep-well agreements and capital
maintenance agreements) to the extent such instruments or agreements support
financial, rather than performance, obligations;
(c) net
obligations under any Swap Contract;
(d) Support
Obligations in respect of Indebtedness of another Person; and
(e) Indebtedness
of any partnership or joint venture or other similar entity in which such
Person
is a general partner or joint venturer, and, as such, has personal liability
for
such obligations, but only to the extent there is recourse to such Person
for
payment thereof.
For
purposes hereof, the amount of Indebtedness shall be determined based on
Swap
Termination Value in the case of net obligations under Swap Contracts under
clause (c) and based on the outstanding principal amount of the
Indebtedness that is the subject of the Support Obligations in the case
of
Support Obligations under clause (d).
“Indemnified
Liabilities”
has
the
meaning provided in Section 10.05.
“Indemnitees”
has
the
meaning provided in Section 10.05.
“Interest
Payment Date”
means,
(a) as to any Base Rate Loan (including Swing Line Loans), the last Business
Day
of each March, June, September and December and the Termination Date
and, in the case of any Swing Line Loan, any other dates reasonably determined
by the Swing Line Lender, and (b) as to any Eurodollar Loan (other than
Swing
Line Loans), the last Business Day of each Interest Period for such Loan,
the
date of repayment of principal of such Loan, and where the applicable Interest
Period exceeds three months, the date every three months after the beginning
of
such Interest Period. If an Interest Payment Date falls on a date that
is not a
Business Day, such Interest Payment Date shall be deemed to be the immediately
succeeding Business Day.
“Internal
Control Event”
means
a
material weakness in, or fraud that involves management or other employees
who
have a significant role in, the Borrower’s internal controls over financial
reporting, in each case as described in the Securities Laws.
“Intangible
Assets”
means
all assets consisting of goodwill, patents, trade names, trademarks, copyrights,
franchises, experimental expense, organization expense, unamortized debt
discount and expense, deferred assets (other than prepaid insurance and
prepaid
taxes), the excess of cost of shares acquired over book value of related
assets
and such other assets as are properly classified as “intangible assets” in
accordance with GAAP.
“Interest
Period”
means,
as to each Eurodollar Loan, the period commencing on the date such Eurodollar
Loan is disbursed or converted to or continued as a Eurodollar Loan and
ending
on the date one, two, three or six months thereafter, as selected by the
applicable Borrower in its Loan Notice; provided that:
(a) any
Interest Period that would otherwise end on a day that is not a Business
Day
shall be extended to the immediately succeeding Business Day unless such
Business Day falls in another calendar month, in which case such Interest
Period
shall end on the immediately preceding Business Day;
(b) any
Interest Period that begins on the last Business Day of a calendar month
(or on
a day for which there is no numerically corresponding day in the calendar
month
at the end of such Interest Period) shall end on the last Business Day
of the
calendar month at the end of such Interest Period; and
(c) no
Interest Period shall extend beyond the Termination Date.
“Internal
Revenue Code”
means
the Internal Revenue Code of 1986.
“Investment”
means,
as to any Person, any direct or indirect acquisition or investment by such
Person, whether by means of (a) the purchase or other acquisition of Capital
Stock of another Person, (b) a loan, advance or capital contribution to,
guaranty or assumption of debt of, or purchase or other acquisition of
any other
debt or equity participation or interest in, another Person, including
any
partnership or joint venture interest in such other Person, or (c) the
purchase
or other acquisition (in one transaction or a series of transactions) of
assets
of another Person that constitute a business unit. For purposes of covenant
compliance, the amount of any Investment shall be the amount actually invested,
without adjustment for subsequent increases or decreases in the value of
such
Investment.
“IRS”
means
the United States Internal Revenue Service.
“JCAHO”
has
the
meaning given to such term in Section
5.19(b).
“Laws”
means,
collectively, all international, foreign, federal, state and local statutes,
treaties, rules, guidelines, regulations, ordinances, codes and administrative
or judicial precedents or authorities, including the interpretation or
administration thereof by any Governmental Authority charged with the
enforcement, interpretation or administration thereof, and all applicable
administrative orders, directed duties, requests, licenses, authorizations
and
permits of, and agreements with, any Governmental Authority, in each case
whether or not having the force of law.
“L/C
Advance”
means,
with respect to each Lender, such Lender’s funding of its participation in any
L/C Borrowing.
“L/C
Borrowing”
means
any extension of credit resulting from a drawing under any Letter of Credit
that
has not been reimbursed or refinanced as a Borrowing of Revolving
Loans.
“L/C
Commitment”
means,
with respect to the L/C Issuer, the commitment of the L/C Issuer to issue
and to
honor payment obligations under Letters of Credit, and, with respect to
each
Lender, the commitment of such Lender to purchase participation interests
in L/C
Obligations up to such Lender’s Revolving Commitment Percentage
thereof.
“L/C
Committed Amount”
has
the
meaning provided in Section 2.01(b).
“L/C
Credit Extension”
means,
with respect to any Letter of Credit, the issuance thereof or extension
of the
expiry date thereof, or the renewal or increase of the amount
thereof.
“L/C
Issuer”
means
Bank of America in its capacity as issuer of Letters of Credit hereunder,
in
each case together with its successors in such capacity.
“L/C
Issuer Fees”
shall
have the meaning given such term in Section 2.09(c)(ii).
“L/C
Obligations”
means,
at any time, the sum of (a) the maximum amount available to be drawn under
Letters of Credit then outstanding, assuming compliance with all requirements
for drawings referenced therein, plus (b) the aggregate amount of all
Unreimbursed Amounts, including L/C Borrowings.
“Lender”
means
each of the Persons identified as a “Lender” on the signature pages hereto (and,
as appropriate, includes the L/C Issuer and the Swing Line Lender) and
each
Person who joins as a Lender pursuant to the terms hereof, together with
their
respective successors and assigns.
“Lender
Joinder Agreement”
means
a
joinder agreement in the form of Exhibit F,
executed and delivered in accordance with the provisions of Section 2.01(d).
“Lending
Office”
means,
as to any Lender, the office or offices of such Lender set forth in such
Lender’s Administrative Questionnaire or such other office or offices as a
Lender may from time to time notify the Borrowers and the Administrative
Agent.
“Letter
of Credit”
means
each standby (non-commercial) letter of credit issued hereunder and shall
include the Existing Letters of Credit.
“Letter
of Credit Application”
means
an application and agreement for the issuance or amendment of a Letter
of Credit
in the form from time to time in use by the L/C Issuer.
“Letter
of Credit Expiration Date”
means
the day that is five (5) Business Days prior to the Termination Date then
in effect (or, if such day is not a Business Day, the immediately preceding
Business Day).
“Letter
of Credit Fee”
shall
have the meaning given such term in Section 2.09(c)(i).
“Lien”
means
any mortgage, deed of trust, deed to secured debt, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
charge,
or preference, priority or other security interest or preferential arrangement
of any kind or nature whatsoever (including any conditional sale or other
title
retention agreement, and any financing lease having substantially the same
economic effect as any of the foregoing).
“Loan”
means
any Revolving Loan or Swing Line Loan, and the Base Rate Loans and Eurodollar
Loans comprising such Loans.
“Loan
Notice”
means
a
notice of (a) a Borrowing of Loans (including Swing Line Loans), (b) a
conversion of Loans from one Type to the other, or (c) a continuation of
Eurodollar Loans, which, if in writing, shall be substantially in the form
of
Exhibit A.
“Material
Adverse Effect”
means
a
material adverse effect on (i) the condition (financial or otherwise),
operations, business, assets, liabilities or prospects of (A) the Parent
and its
Consolidated Subsidiaries taken as a whole or (B) the Borrowers taken as
a
whole, (ii) the ability of the Parent or the Borrowers to perform any material
obligation under the Credit Documents, or (iii) the rights and remedies
of the
Administrative Agent and the Lenders under the Credit Documents.
“Material
Contract”
means,
collectively, any Facility Lease, any cash management agreement, or any
similar
agreement with respect to any Borrowing Base Asset.
“Medicaid”
means
the medical assistance programs administered by state agencies and approved
by
CMS pursuant to the terms of Title XIX of the Social Security Act, codified
at
42 U.S.C. 1396 et
seq
“Medical
Services”
means
medical and health care services provided to a Person, including, but not
limited to, medical and health care services provided to a Person which
are
covered by a policy of insurance, and includes physician services, nurse
and
therapist services, dental services, hospital services, skilled nursing
facility
services, comprehensive outpatient rehabilitation services, home health
care
services, residential and out-patient behavioral healthcare services, and
medicine or health care equipment provided to a Person for a necessary
or
specifically requested valid and proper medi-cal or health purpose.
“Medicare”
means
the program of health benefits for the aged and disabled administered by
CMS
pursuant to the terms of Title XVIII of the Social Security Act, codified
at 42
U.S.C. 1395 et
seq.
“Moody’s”
means
Moody’s Investors Service, Inc. and any successor thereto.
“Mortgageability
Amount”
means,
with respect to any Borrowing Base Asset and as of any date of determination,
the maximum principal amount of a mortgage loan that would be available
to be
borrowed against such Borrowing Base Asset assuming (a) an annual interest
rate
equal to the greater of (i) 7.00% and (ii) the then-applicable Treasury
Rate plus
2.00%, (b) a 30-year amortization schedule and (c) a debt service coverage
ratio
on such loan of 1.50 to 1.00 (based on the most-recently calculated
Mortgageability Cash Flow of such Borrowing Base Asset).
“Mortgageability
Cash Flow”
means,
with respect to any Borrowing Base Asset and for the most recently ended
fiscal
quarter for which financial information has been delivered to the Administrative
Agent pursuant to the terms of this Credit Agreement, an amount equal to
the
most-recently calculated Net Revenues received by the applicable Borrower
with
respect to such Borrowing Base Asset (as calculated on an annualized basis
for
the most recently ended fiscal quarter for which financial information
has been
delivered to the Administrative Agent pursuant to the terms of this Credit
Agreement) in connection with a so-called triple net lease entered into
between
the applicable Borrower and a Person which is not an Affiliate of any
Consolidated Party.
“Mortgage
Instrument”
means,
for any Real Property Asset, a first lien priority mortgage, deed of trust
or
deed to secure debt in favor of the Administrative Agent (for the benefit
of the
Lenders) with respect to such Real Property Asset. Each Mortgage Instrument
shall be in form and substance satisfactory to the Administrative Agent
and
suitable for recording in the applicable jurisdiction.
“Mortgage
Policies”
shall
have the meaning assigned to such term in the definition of “Borrowing Base
Asset Deliverables” contained in this Section 1.01.
“Multiemployer
Plan”
means
any employee benefit plan of the type described in Section 4001(a)(3) of
ERISA, to which the Parent or any ERISA Affiliate makes or is obligated
to make
contributions, or during the preceding five plan years, has made or been
obligated to make contributions.
“Negative
Pledge” means
any
agreement (other than this Credit Agreement or any other Credit Document)
that
in whole or in part prohibits the creation of any Lien on any assets of
a
Person; provided, however, that an agreement that establishes a maximum
ratio of
unsecured debt to unencumbered assets, or of secured debt to total assets,
or
that otherwise conditions a Person’s ability to encumber its assets upon the
maintenance of one or more specified ratios that limit such Person’s ability to
encumber its assets but that do not generally prohibit the encumbrance
of its
assets, or the encumbrance of specific assets, shall not constitute a “Negative
Pledge” for purposes of this Credit Agreement.
“Net
Revenues”
shall
mean, with respect to any Real Property Asset for the most recently ended
fiscal
quarter for which financial information has been delivered to the Administrative
Agent pursuant to the terms of this Credit Agreement, the annualized sum
of (a)
rental payments received in cash by the applicable Borrower (whether in
the
nature of base rent, minimum rent, percentage rent, additional rent or
otherwise, but exclusive of security deposits, earnest money deposits,
advance
rentals, reserves for capital expenditures, charges, expenses or items
required
to be paid or reimbursed by the tenant thereunder and proceeds from a sale
or
other disposition) pursuant to the Facility Leases applicable to such Real
Property Asset, minus (b) expenses of the Borrowers allocated to such Real
Property Asset.
“Notes”
means
the Revolving Notes; and “Note”
means
any one of them.
“Obligations”
means,
without duplication, (a) all advances to, and debts, liabilities, obligations,
covenants and duties of, any Credit Party arising under any Credit Document
or
otherwise with respect to any Loan or Letter of Credit, whether direct
or
indirect (including those acquired by assumption), absolute or contingent,
due
or to become due, now existing or hereafter arising and including interest
and
fees that accrue after the commencement by or against any Credit Party
or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming
such
Person as the debtor in such proceeding, regardless of whether such interest
and
fees are allowed claims in such proceeding and (b) all obligations under
any
Swap Contract of any Credit Party to which a Lender or any Affiliate of
a Lender
is a party.
“Occupancy
Rate”
means,
with respect to any Real Property Asset, the percentage of rentable area
of such
Real Property Asset that is (a) leased pursuant to a lease that is in form
and
substance acceptable to the Administrative Agent and (b) actually occupied
by an
Eligible Tenant.
“Organization
Documents”
means,
(a) with respect to any corporation, the certificate or articles of
incorporation and the bylaws (or equivalent or comparable constitutive
documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited
liability company, the certificate or articles of formation or organization
and
operating agreement; and (c) with respect to any partnership, joint venture,
trust or other form of business entity, the partnership, joint venture
or other
applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation
or
organization with the applicable Governmental Authority in the jurisdiction
of
its formation or organization and, if applicable, any certificate or articles
of
formation or organization of such entity.
“Outstanding
Amount”
means
(a) with respect to Revolving Loans and Swing Line Loans on any date, the
aggregate outstanding principal amount thereof after giving effect to any
Borrowings and prepayments or repayments of Revolving Loans and Swing Line
Loans, as the case may be, occurring on such date and (b) with respect
to any
L/C Obligations on any date, the amount of such L/C Obligations on such
date
after giving effect to any L/C Credit Extension occurring on such date
and any
other changes in the aggregate amount of the L/C Obligations as of such
date,
including as a result of any reimbursements of outstanding unpaid drawings
under
any Letters of Credit or any reductions in the maximum amount available
for
drawing under Letters of Credit taking effect on such date.
“Parent”
means
Omega Healthcare Investors, Inc.
“Participant”
has
the
meaning provided in Section 10.07(d).
“PBGC”
means
the Pension Benefit Guaranty Corporation.
“Pension
Plan”
means
any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to
Title IV of ERISA and is sponsored or maintained by the Parent or any ERISA
Affiliate or to which the Parent or any ERISA Affiliate contributes or
has an
obligation to contribute, or in the case of a multiple employer or other
plan
described in Section 4064(a) of ERISA, has made contributions at any time
during the immediately preceding five plan years.
“Permitted
Liens”
means,
as to any Person: (a) Liens securing taxes, assessments and other charges
or
levies imposed by any Governmental Authority (excluding any Lien imposed
pursuant to any of the provisions of ERISA), in each case, which are not
yet due
and payable; (b) Liens evidencing the claims of materialmen, mechanics,
carders,
warehousemen or landlords for labor, materials, supplies or rentals, in
each
case, incurred in the ordinary course of business and which are not at
the time
required to be paid or discharged; provided, that with respect to any Borrowing
Base Asset, no exception is taken therefor in the related Mortgage Policy
or
such Mortgage Policy otherwise affirmatively insures over such Liens in
form and
substance satisfactory to the Administrative Agent; (c) Liens consisting
of
deposits or pledges made, in the ordinary course of business, in connection
with, or to secure payment of, obligations under workmen’s compensation,
unemployment insurance or similar applicable Laws; (d) zoning restrictions,
easements, rights-of-way, covenants, reservations and other rights, restrictions
or encumbrances of record on the use of Real Property Assets, which do
not
materially detract from the value of such property or materially impair
the use
thereof for the business of such Person; (e) Liens in existence as of the
Closing Date as set forth on Schedule 7.01
and,
with respect to the Borrowing Base Assets, as set forth on the Mortgage
Policies
(or updates thereto) delivered in connection herewith; (f) Liens, if any,
in
favor of the Administrative Agent for the benefit of the Lenders; (g) Liens
arising pursuant to leases or subleases of immaterial portions of any Real
Property Asset owned by any of the Borrowers granted to others not interfering
in any material respect with such Real Property Asset or the business of
the
applicable Borrower and (h)
Liens
in existence as of the Closing Date with respect to certain of the Borrowing
Base Assets to secure the Braswell Indebtedness, to the extent that such
Liens will not be set forth on the Mortgage Polices (or updates thereto)
permitted pursuant to clause (e) above.
“Person”
means
any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.
“Plan”
means
any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Parent or, with respect to any such plan that
is
subject to Section 412 of the Internal Revenue Code or Title IV of
ERISA, any ERISA Affiliate.
“Platform”
has
the
meaning specified in Section 6.02.
“Prohibited
Person”
shall
mean any Person (i) listed in the annex to, or who is otherwise subject
to the
provisions of, Executive Order No. 13224 on Terrorist Financing, effective
September 24, 2001, and relating to Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism
(the "Executive
Order");
(ii)
that is owned or controlled by, or acting for or on behalf of, any person
or
entity that is listed in the annex to, or is otherwise subject to the
provisions, of the Executive Order; (iii) with whom a Person is prohibited
from
dealing or otherwise engaging in any transaction by any terrorism or money
laundering Law, including the Executive Order; (iv) who commits, threatens
or
conspires to commit or supports "terrorism" as defined in the Executive
Order;
(v) that is named as a "specially designated national and blocked person"
on the
most current list published by the U.S. Treasury Department Office of Foreign
Assets Control at its official website or at any replacement website or
other
replacement official publication of such list; or who is an Affiliate of
a
Person listed in clauses (i) - (v) above.
“Qualified
Borrowing Base Assets”
means,
as of any date of determination, the set of then-existing Borrowing Base
Assets
which, in the aggregate, have an Occupancy Rate equal to or greater than
seventy
percent 70% and produce the greatest Aggregate Mortgageability
Amount.
“Qualified
REIT Subsidiary”
shall
have the meaning given to such term in the Internal Revenue Code.
“Real
Property Asset”
means,
a parcel of real property, together with all improvements (if any) thereon,
owned in fee simple or leased pursuant to an Eligible Ground Lease
by any
Person; “Real Property Assets” means a collective reference to each Real
Property Asset.
“Register”
has
the
meaning provided in Section 10.07(c).
“Registered
Public Accounting Firm”
has
the
meaning specified in the Securities Laws and shall be independent of the
Borrower as prescribed by the Securities Laws.
“Regulation T”
means
Regulation T of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
“Regulation U”
means
Regulation U of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
“Regulation X”
means
Regulation X of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
“REIT”
means
a
real estate investment trust as defined in Sections 856-860 of the Internal
Revenue Code.
“Related
Parties”
means,
with respect to any Person, such Person’s Affiliates and the partners,
directors, officers, employees, agents and advisors of such Person and
of such
Person’s Affiliates.
“Reportable
Event”
means
any of the events set forth in Section 4043(c) of ERISA, other than events
for which the thirty-day notice period has been waived.
“Request
for Extension of Credit”
means
(a) with respect to a Borrowing of Loans (including Swing Line Loans) or
the
conversion or continuation of Loans, a Loan Notice and (b) with respect
to an
L/C Credit Extension, a Letter of Credit Application.
“Required
Lenders”
means,
as of any date of determination, two or more Lenders (except to the extent
only
one Lender exists as of such date) having at least 66-2/3% of the Aggregate
Commitments or, if the commitment of each Lender to make Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated
pursuant to Article
VIII,
Lenders
holding in the aggregate at least 66-2/3% of the Revolving Obligations
(including, in each case, the aggregate amount of each Lender’s risk
participation and funded participation in L/C Obligations and Swing Line
Loans);
provided that the Commitment of, and the portion of the Revolving Obligations
held or deemed held by, any Defaulting Lender shall be excluded for purposes
of
making a determination of Required Lenders.
“Responsible
Officer”
means
the chief executive officer, president, chief operating officer and chief
financial officer of any Credit Party. Any document delivered hereunder
that is
signed by a Responsible Officer of a Credit Party shall be conclusively
presumed
to have been authorized by all necessary corporate, partnership and/or
other
action on the part of such Credit Party and such Responsible Officer shall
be
conclusively presumed to have acted on behalf of such Credit Party.
“Revolving
Commitment”
means,
with respect to each Lender, the commitment of such Lender to make Revolving
Loans and to share in the Revolving Obligations hereunder up to such Lender’s
Revolving Commitment Percentage thereof.
“Revolving
Commitment Percentage”
means,
at any time for each Lender, a fraction (expressed as a percentage carried
to
the ninth decimal place), the numerator of which is such Lender’s Revolving
Committed Amount and the denominator of which is the Aggregate Revolving
Committed Amount. The initial Revolving Commitment Percentages are set
forth on
Schedule 2.01.
“Revolving
Committed Amount”
means,
with respect to each Lender, the amount of such Lender’s Revolving Commitment.
The initial Revolving Committed Amounts are set forth on
Schedule 2.01.
“Revolving
Loan”
has
the
meaning provided in Section 2.01.
“Revolving
Note”
means
the promissory notes in the form of Exhibit B,
if any,
given to each Lender to evidence the Revolving Loans and Swing Line Loans
of
such Lender, as amended, restated, modified, supplemented, extended, renewed
or
replaced.
“Revolving
Obligations”
means
the Revolving Loans, the L/C Obligations and the Swing Line Loans.
“S&P”
means
Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies,
Inc. and any successor thereto.
“Sale
and Leaseback Transaction”
means,
with respect to the Parent or any Subsidiary, any arrangement, directly
or
indirectly, with any person whereby the Parent or such Subsidiary shall
sell or
transfer any property, real or personal, used or useful in its business,
whether
now owned or hereafter acquired, and thereafter rent or lease such property
or
other property that it intends to use for substantially the same purpose
or
purposes as the property being sold or transferred.
“Sarbanes-Oxley”
means
the Sarbanes-Oxley Act of 2002.
“SEC”
means
the Securities and Exchange Commission, or any Governmental Authority succeeding
to any of its principal functions.
“Securities
Laws”
means
the Securities Act of 1933, the Securities Exchange Act of 1934, Sarbanes-Oxley
and the applicable accounting and auditing principles, rules, standards
and
practices promulgated, approved or incorporated by the SEC or the Public
Company
Accounting Oversight Board, as each of the foregoing may be amended and
in
effect on any applicable date hereunder.
“Securitization
Transaction”
means
any financing or factoring or similar transaction (or series of such
transactions) entered by any member of the Consolidated Parties pursuant
to
which such member of the Consolidated Parties may sell, convey or otherwise
transfer, or grant a security interest in, accounts, payments, receivables,
rights to future lease payments or residuals or similar rights to payment
(the
“Securitization
Receivables”)
to a
special purpose subsidiary or affiliate (a “Securitization
Subsidiary”)
or any
other Person.
“Security
Agreement”
means
the security agreement dated as of the date hereof in the form of Exhibit
H,
as
amended, supplemented, restated or otherwise modified from time to
time.
“Senior
Notes”
means
collectively, the Senior Notes (2014) and the Senior Notes (2017).
“Senior
Notes (2014)”
means
any one of the 7.0% Senior Notes due 2014 issued by the Parent in favor
of the
Senior Noteholders pursuant to the Senior Note Indenture (2014), as such
Senior
Notes may be amended, restated, supplemented, replaced or otherwise modified
from time to time.
“Senior
Notes (2017)”
means
any one of the 7.0% Senior Notes due 2017 issued by the Parent in favor
of the
Senior Noteholders pursuant to the Senior Note Indenture (2017), as such
Senior
Notes may be amended, restated, supplemented, replaced or otherwise modified
from time to time.
“Senior
Note Indentures”
means
collectively, the Senior Note Indenture (2014) and the senior Note Indenture
(2017).
“Senior
Note Indenture (2014)”
means
the Indenture, dated as of March 22, 2004 by and among the Parent and the
Senior
Noteholders, as the same may be amended, restated, supplemented, replaced
or
otherwise modified from time to time.
“Senior
Note Indenture (2017)”
means
the Indenture, dated as of December 30, 2005 by and among the Parent and
the
Senior Noteholders, as the same may be amended, restated, supplemented,
replaced
or otherwise modified from time to time.
“Senior
Noteholder”
means
any one of the holders from time to time of the Senior Notes.
“Solvent”
means,
with respect to any person on a particular date, that on such date (a)
the fair
value of the property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of
such
Person, (b) the present fair saleable value of the assets of such Person
is not
less than the amount that will be required to pay the probable liability
of such
Person on its debts as they become absolute and matured, (c) such Person
is able
to realize upon its assets and pay its debts and other liabilities, contingent
obligations and other commitments as they mature, (d) such Person does
not
intend to, and does not believe that it will, incur debts or liabilities
beyond
such Person’s ability to pay as such debts and liabilities mature, and (e) such
Person is not engaged in a business or a transaction, and is not about
to engage
in a business or a transaction, for which such Person’s property would
constitute unreasonably small capital after giving due consideration to
the
prevailing practice in the industry in which such Person is engaged. In
computing the amount of contingent liabilities at any time, it is intended
that
such liabilities will be computed at the amount which, in light of all
the facts
and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
“Special
Charges”
means,
for the most recently ended fiscal quarter for which financial information
has
been delivered to the Administrative Agent pursuant to the terms of this
Credit
Agreement, all charges, costs or expenses of the Consolidated Parties related
to
any of the following:
(a) cash
litigation charges incurred by the Consolidated Parties; provided that
such
amount shall not exceed an aggregate amount of $5,000,000 during the term
of
this Credit Agreement and any such amounts in excess of $5,000,000 shall
not be
included in the determination of the Special Charges Adjustment for any
fiscal
quarter;
(b) non-cash
charges associated with the write-down of the value of accounts and/or
notes
receivable of the Consolidated Parties; provided that such amount shall
not
exceed an aggregate amount of $5,000,000 during the term of this Credit
Agreement and any such amounts in excess of $5,000,000 shall not be included
in
the determination of the Special Charges Adjustment for any fiscal
quarter;
(c) non-cash
charges related to preferred stock redemptions and non-cash compensation
expenses relating to restricted stock awards, stock options or similar
equity
based compensation awards;
(d) non-cash
charges incurred by the Consolidated Parties in association with the write-down
of the value of any real properties;
(e) the
satisfaction of outstanding unamortized loan fees with respect to the 2004
Credit Facility; and
(f) any
other
non-cash charges associated with the sale or settlement by any Consolidated
Party of any Swap Contract.
“Special
Charges Adjustment”
means,
for any fiscal quarter, the amount which has been deducted for or in connection
with any Special Charges (without duplication among such items or items
taken
into account for previous fiscal quarters) in the determination of net
income
for the applicable fiscal quarter for which a given Consolidated EBITDA
calculation has been performed.
“Subsidiary”
of
a
Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of securities
or other interests having ordinary voting power for the election of directors
or
other governing body (other than securities or interests having such power
only
by reason of the happening of a contingency) are at the time beneficially
owned,
or the management of which is otherwise controlled, directly, or indirectly
through one or more intermediaries, or both, by such Person. Unless otherwise
provided, “Subsidiary”
shall
refer to a Subsidiary of the Parent.
“Subsidiary
Guarantor”
means
each Subsidiary of the Parent other than (a) the Borrowers and (b) the
Unrestricted Subsidiaries.
“Subsidiary
Guarantor Joinder Agreement”
means
a
joinder agreement in the form of Exhibit E-2
to be
executed by each new Subsidiary of the Parent that is required to become
a
Subsidiary Guarantor in accordance with Section 6.15(b)
hereof.
“Support
Obligations”
means,
as to any Person, (a) any obligation, contingent or otherwise, of such
Person
guaranteeing or having the economic effect of guaranteeing any Indebtedness
or
other obligation payable or performable by another Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any
obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness
or
other obligation, (ii) to purchase or lease property, securities or services
for
the purpose of assuring the obligee in respect of such Indebtedness or
other
obligation of the payment or performance of such Indebtedness or other
obligation, (iii) to maintain working capital, equity capital or any other
financial statement condition or liquidity or level of income or cash flow
of
the primary obligor so as to enable the primary obligor to pay such Indebtedness
or other obligation, or (iv) entered into for the purpose of assuring in
any
other manner the obligee in respect of such Indebtedness or other obligation
of
the payment or performance thereof or to protect such obligee against loss
in
respect thereof (in whole or in part), or (b) any Lien on any assets of
such
Person securing any Indebtedness or other obligation of any other Person,
whether or not such Indebtedness or other obligation is assumed by such
Person.
The amount of any Support Obligations shall be deemed to be an amount equal
to
the stated or determinable amount of the related primary obligation, or
portion
thereof, in respect of which such Support Obligation is made or, if not
stated
or determinable, the maximum reasonably anticipated liability in respect
thereof
as determined by the guaranteeing Person in good faith.
“Swap
Contract”
means
(a) any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, equity or equity index swaps or options, bond
or
bond price or bond index swaps or options or forward bond or forward bond
price
or forward bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions,
currency options, spot contracts, or any other similar transactions or
any
combination of any of the foregoing (including any options to enter into
any of
the foregoing), whether or not any such transaction is governed by or subject
to
any master agreement, and (b) any and all transactions of any kind, and
the
related confirmations, that are subject to the terms and conditions of,
or
governed by, any form of master agreement published by the International
Swaps
and Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement (any such master agreement, together
with any related schedules, a “Master
Agreement”),
including any such obligations or liabilities under any Master
Agreement.
“Swap
Termination Value”
means,
in respect of any one or more Swap Contracts, after taking into account
the
effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have
been
closed out and termination values determined in accordance therewith, such
termination values, and (b) for any date prior to the date referenced in
clause (a), the amounts determined as the mark-to-market values for such
Swap Contracts, as determined based upon one or more mid-market or other
readily
available quotations provided by any recognized dealer in such Swap Contracts
(which may include a Lender or any Affiliate of a Lender).
“Swing
Line Borrowing”
means
a
borrowing of a Swing Line Loan pursuant to Section 2.01(c).
“Swing
Line Commitment”
means,
with respect to the Swing Line Lender, the commitment of the Swing Line
Lender
to make Swing Line Loans, and with respect to each Lender, the commitment
of
such Lender to purchase participation interests in Swing Line
Loans.
“Swing
Line Committed Amount”
has
the
meaning provided in Section 2.01(c).
“Swing
Line Lender”
means
Bank of America in its capacity as such, together with any successor in
such
capacity.
“Swing
Line Loan”
has
the
meaning provided in Section 2.01(c).
“Synthetic
Lease”
means
any synthetic lease, tax retention operating lease, off-balance sheet loan
or
similar off-balance sheet financing arrangement that is considered borrowed
money indebtedness for tax purposes but is classified as an operating lease
under GAAP.
“Tenant”
means
any Person who is a lessee with respect to any lease held by a Borrower
as
lessor or as an assignee of the lessor thereunder.
“Termination
Date”
means
March 31, 2010.
“Threshold
Amount”
means
(a) for any provision relating to the Borrowers as a whole, the Parent
or the
Consolidated Parties as a whole, $10,000,000, (b) for any provision relating
to
Delta Investors I, LLC, Delta investors II, LLC, OHI Asset, LLC and OHI
Asset
(CA), LLC as a whole, $2,500,000 and (c) for any provision relating to
OHI Asset
(ID), LLC, OHI Asset (LA), LLC, OHI Asset (TX), LLC and any other Borrower
made
a party hereto following the Closing Date, individually, $500,000.
“Treasury
Rate”
means,
as of any date of determination, the yield reported, as of 10:00 a.m. (New
York City time) on such date (or to the extent such date is not a Business
Day,
the Business Day immediately preceding such date) on the display designated
as
page “PX-1” of the Bloomberg Financial Markets Services Screen (or such other
display as may replace page “PX-1” of the Bloomberg Financial Markets Services
Screen) for actively traded U.S. Treasury securities having a ten (10) year
maturity as of such date, or (b) if such yields are not reported as of
such time
or the yields reported as of such time are not ascertainable, the Treasury
Constant Maturity Series Yields reported, for the latest day for which such
yields have been so reported as of such day in Federal Reserve Statistical
Release H.15(519) (or any comparable successor publication) for actively
traded
U.S. Treasury securities having a constant maturity equal to ten (10)
years.
“Type”
means,
with respect to any Revolving Loan, its character as a Base Rate Loan or
a
Eurodollar Loan.
“Unfunded
Pension Liability”
means
the excess of a Pension Plan’s benefit liabilities under
Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s
assets, determined in accordance with the assumptions used for funding
the
Pension Plan pursuant to Section 412 of the Internal Revenue Code for the
applicable plan year.
“United
States”
or
“U.S.”
means
the United States of America.
“Unreimbursed
Amount”
has
the
meaning provided in Section 2.03(c)(i).
“Unrestricted
Subsidiaries”
means
the “Unrestricted Subsidiaries” as such term is defined from time to time in the
Senior Note Indentures; provided,
that to
the extent the Senior Note Indentures are, for any reason, both terminated,
the
term “Unrestricted Subsidiaries” shall, for the remainder of the term of this
Agreement, have the meaning assigned to such term in the Senior Note Indentures
immediately prior to the termination thereof.
“Unused
Fee”
shall
have the meaning given such term in Section 2.09(a).
“Wholly
Owned”
means,
with respect to any direct or indirect Subsidiary of any Person, that 100%
of
the Capital Stock with ordinary voting power issued by such Subsidiary
(other
than directors’ qualifying shares and investments by foreign nationals mandated
by applicable Law) is beneficially owned, directly or indirectly, by such
Person.
“2004
Administrative Agent”
shall
have the meaning given such terms in the Recitals of this Credit
Agreement.
“2004
Collateral Documents”
means
that certain collateral documentation securing the obligations of the Borrowers
to the 2004 Facility Lenders under the 2004 Facility, such documentation
to
include, without limitation, the security agreement, UCC financing statements,
certain assignments of leases, and certain first lien priority mortgage
deeds of
trust or deeds to secured debt, each dated on or about March 22, 2004 or
on or
about November, 2004.
“2004
Credit Agreement”
means,
that certain Credit Agreement dated as of March 22, 2004 among the Borrowers
and
Bank of America, N.A., UBS, Deutsche Bank, GECC, Merrill
Lynch, JPMorgan, LaSalle Bank, N.A., NatCity and Bank of America as
Administrative Agent.
“2004
Facility”
means
collectively, the 2004 Credit Agreement and the 2004 Promissory Notes as
secured
by the 2004 Collateral Documents.
“2004
Facility Assignment Agreement”
means
that certain Absolute Assignment of 2004 Credit Documents by 2004 Facility
Lenders and 2004 Administrative Agent to 2006 Facility Lenders and 2006
Administrative Agent among the 2004 Facility Lenders, the 2004 Administrative
Agent and the Administrative Agent hereunder, on behalf of itself and the
Lenders hereunder party to the Credit Agreement as of the Closing Date,
dated as
of the date hereof in the form of Exhibit
I.
“2004
Facility Lenders”
means
Bank
of
America, UBS, Deutsche Bank, GECC, Merrill
Lynch, JP Morgan, LaSalle and NatCity.
“2004
Promissory Notes”
means
those certain promissory notes issued by the Borrowers to certain of the
2004
Facility Lenders.
1.02 Interpretive
Provisions.
With
reference to this Credit Agreement and each other Credit Document, unless
otherwise provided herein or in such other Credit Document:
(a) The
meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms.
(b) (i) The
words
“herein,” “hereto,” “hereof” and “hereunder” and words of similar import when
used in any Credit Document shall refer to such Credit Document as a whole
and
not to any particular provision thereof.
(ii) Unless
otherwise provided or required by context, Article, Section, Exhibit and
Schedule references are to the Credit Document in which such reference
appears.
(iii) The
term
“including” is by way of example and not limitation.
(iv) The
term
“documents” includes any and all instruments, documents, agreements,
certificates, notices, reports, financial statements and other writings,
however
evidenced, whether in physical or electronic form.
(c) In
the
computation of periods of time from a specified date to a later specified
date,
the word “from” means “from and including”; the words “to” and “until” each mean
“to but excluding”; and the word “through” means “to and
including.”
(d) Section headings
herein and in the other Credit Documents are included for convenience of
reference only and shall not affect the interpretation of this Credit Agreement
or any other Credit Document.
1.03 Accounting
Terms.
(a) All
accounting terms not specifically or completely defined herein shall be
construed in conformity with, and all financial data (including financial
ratios
and other financial calculations) required to be submitted pursuant to
this
Credit Agreement shall be prepared in conformity with, GAAP applied on
a
consistent basis, as in effect from time to time, applied in a manner consistent
with that used in preparing the audited financial statements for the fiscal
year
ended December 31, 2005, except as otherwise specifically prescribed
herein.
(b) The
Parent will provide a written summary of material changes in GAAP or in
the
consistent application thereof with each annual and quarterly Compliance
Certificate delivered in accordance with Section 6.02(a).
If at
any time any change in GAAP or in the consistent application thereof would
affect the computation of any financial ratio or requirement set forth
in any
Credit Document, and either the Parent or the Required Lenders shall object
in
writing to determining compliance based on such change, then such computations
shall continue to be made on a basis consistent with the most recent financial
statements delivered pursuant to Section 6.01(a)
or
(b)
as to
which no such objection has been made.
1.04 Rounding.
Any
financial ratios required to be maintained by the Parent pursuant to this
Credit
Agreement shall be calculated by dividing the appropriate component by
the other
component, carrying the result to one place more than the number of places
by
which such ratio is expressed herein and rounding the result up or down
to the
nearest number (with a rounding-up if there is no nearest number).
1.05 References
to Agreements and Laws.
Unless
otherwise expressly provided herein, (a) references to Organization Documents,
agreements (including the Credit Documents) and other contractual instruments
shall be deemed to include all subsequent amendments, restatements, extensions,
supplements and other modifications thereto, but only to the extent that
such
amendments, restatements, extensions, supplements and other modifications
are
not prohibited by any Credit Document; and (b) references to any Law shall
include all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting such Law.
1.06 Times
of Day.
Unless
otherwise provided, all references herein to times of day shall be references
to
Eastern time (daylight or standard, as applicable).
1.07 Letter
of Credit Amounts.
Unless
otherwise provided, all references herein to the amount of a Letter of
Credit at
any time shall be deemed to mean the maximum face amount of such Letter
of
Credit after giving effect to all increases thereof contemplated by such
Letter
of Credit or the Letter of Credit Application therefor, whether or not
such
maximum face amount is in effect at such time.
ARTICLE
II
COMMITMENTS
AND EXTENSION OF CREDITS
2.01 Commitments.
Subject
to the terms and conditions set forth herein:
(a) Revolving
Loans.
During
the Commitment Period, each Lender severally agrees to make revolving credit
loans (the “Revolving
Loans”)
to the
Borrower Representative on any Business Day; provided that after giving
effect
to any such Revolving Loan, (i) with regard to the Lenders collectively,
the
aggregate outstanding principal amount of Revolving Obligations shall not
exceed
the lesser of (x) TWO
HUNDRED MILLION DOLLARS ($200,000,000),
the
“Aggregate
Revolving Committed Amount”)
and
(y) the Borrowing Base Amount for such date and (ii) with regard to each
Lender
individually, such Lender’s Revolving Commitment Percentage of Revolving
Obligations shall not exceed its respective Revolving Committed Amount.
Revolving Loans may consist of Base Rate Loans, Eurodollar Loans, or a
combination thereof, as provided herein, and may be repaid and reborrowed
in
accordance with the provisions hereof.
(b) Letters
of Credit.
During
the Commitment Period, (i) the L/C Issuer, in reliance upon the commitments
of
the Lenders set forth herein, agrees (A) to issue Letters of Credit for
the
account of a Borrower on
any
Business Day, (B) to amend or renew Letters of Credit previously issued
hereunder, and (C) to honor drafts under Letters of Credit; and (ii) the
Lenders
severally agree to purchase from the L/C Issuer a participation interest
in the
Letters of Credit issued hereunder in an amount equal to such Lender’s Revolving
Commitment Percentage thereof; provided that (A) the aggregate principal
amount
of L/C Obligations shall not exceed an amount equal to fifteen percent
(15%) of
the Aggregate Revolving Committed Amount (as such amount may be adjusted
in
accordance with the provisions hereof, the “L/C
Committed Amount”),
(B)
with regard to the Lenders collectively, the aggregate principal amount
of
Revolving Obligations shall not exceed the lesser of (x) the Aggregate
Revolving
Committed Amount and (y) the Borrowing Base Amount for such date, and (C)
with
regard to each Lender individually, such Lender’s Revolving Commitment
Percentage of Revolving Obligations shall not exceed its respective Revolving
Committed Amount. Subject to the terms and conditions hereof, the Borrowers’
ability to obtain Letters of Credit shall be fully revolving, and accordingly
the Borrowers may obtain Letters of Credit to replace Letters of Credit
that
have expired or that have been drawn upon and reimbursed. All Existing
Letters
of Credit shall be deemed to have been issued pursuant hereto, and from
and
after the Closing Date shall be subject to and governed by the terms and
conditions hereof.
(c) Swing
Line Loans.
During
the Commitment Period, the Swing Line Lender agrees to make revolving credit
loans (the “Swing
Line Loans”)
to the
Borrower Representative on any Business Day; provided,
that
(i) the aggregate principal amount of Swing Line Loans shall not exceed
an
amount equal to fifteen percent (15%) of the Aggregate Revolving Committed
Amount (as such amount may be adjusted in accordance with the provisions
hereof,
the “Swing
Line Committed Amount”),
(ii)
with respect to the Lenders collectively, the aggregate principal amount
of
Revolving Obligations shall not exceed the lesser of (x) the Aggregate
Revolving
Committed Amount and (y) the Borrowing Base Amount on such date, and (iii)
the
Borrowers shall not use the proceeds of any Swing Line Loan to refinance
any
outstanding Swing Line Loan. Swing Line Loans shall be comprised solely
of
Eurodollar Loans, and may be repaid and reborrowed in accordance with the
provisions hereof. Immediately upon the making of a Swing Line Loan, each
Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Swing Line Lender a participation interest in such Swing
Line
Loan in an amount equal to the product of such Lender’s Revolving Commitment
Percentage thereof. No Swing Line Loan shall remain outstanding for longer
than
five (5) Business Days.
(d) Increase
in Revolving Commitments.
Subject
to the terms and conditions set forth herein, the Borrower Representative
may,
at any time during the period commencing as of the Closing Date and ending
as of
the date two (2) years following the Closing Date, upon written notice
to the
Administrative Agent, cause an increase in the Aggregate Revolving Committed
Amount by up to ONE
HUNDRED MILLION DOLLARS ($100,000,000)
(to an
aggregate amount not more than THREE
HUNDRED MILLION DOLLARS ($300,000,000));
provided that such increase shall be conditioned and effective upon the
satisfaction of the following conditions:
(i) the
Borrowers shall obtain (whether through the Arranger or otherwise) commitments
for the amount of the increase from existing Lenders or other commercial
banks
or financial institutions reasonably acceptable to the Administrative Agent,
which other commercial banks and financial institutions shall join in this
Credit Agreement as Lenders by a Lender Joinder Agreement substantially
in the
form of Exhibit F
attached
hereto or other arrangement reasonably acceptable to the Administrative
Agent
(it being understood that in no case shall any Lender be required to increase
its Revolving Commitment without its written consent);
(ii) any
such
increase shall be in a minimum aggregate principal amount of $5,000,000
and
integral multiples of $1,000,000 in excess thereof (or the remaining amount,
if
less);
(iii) if
any
Revolving Loans are outstanding at the time of any such increase, the Borrowers
shall make such payments and adjustments on the Revolving Loans (including
payment of any break-funding amounts owing under Section 3.05)
as may
be necessary to give effect to the revised commitment percentages and commitment
amounts;
(iv) the
Borrowers shall pay to the Administrative Agent and the Arranger all fees
required under the Administrative Agent’s Fee Letter due in connection with the
syndication of the increase in the Revolving Committed Amount;
(v) the
Borrowers shall have executed any new or amended and restated Notes (to
the
extent requested by the Lenders) to reflect the revised commitment amounts;
and
(vi) the
conditions to the making of a Revolving Loan set forth in Section 4.02
shall be
satisfied.
In
connection with any such increase in the Revolving Commitments, Schedule 2.01
shall be
revised to reflect the modified commitments and commitment percentages
of the
Lenders, and the Borrowers shall provide supporting corporate resolutions,
legal
opinions, promissory notes and other items as may be reasonably requested
by the
Administrative Agent and the Lenders in connection therewith. The Borrower
Representative shall not be permitted to cause more than four (4) increases
in
the Aggregate Revolving Committed Amount following the Closing
Date.
2.02 Borrowings,
Conversions and Continuations.
(a) Each
Borrowing, each conversion of Loans from one Type to the other, and each
continuation of Eurodollar Loans shall be made upon the Borrower
Representative’s irrevocable notice to the Administrative Agent, which may be
given by telephone. Each such notice must be received by the Administrative
Agent not later than 11:00 a.m. (i) with respect to Eurodollar Loans,
three (3) Business Days prior to, or (ii) with respect to Base Rate Loans,
on the requested date of, the requested date of any Borrowing, conversion
or
continuation. Each telephonic notice pursuant to this Section 2.02(a)
must be
confirmed promptly by delivery to the Administrative Agent of a written
Loan
Notice, appropriately completed and signed by a Responsible Officer of
the
Parent. Except as provided in Sections 2.03(c)
and
2.04(c),
each
Borrowing, conversion or continuation shall be in a principal amount of
(i) with
respect to Eurodollar Loans, $1,000,000 or a whole multiple of $1,000,000
in
excess thereof or (ii) with respect to Base Rate Loans, $500,000 or a whole
multiple of $100,000 in excess thereof. Each Loan Notice (whether telephonic
or
written) shall specify (i) whether the applicable request is with respect
to
Revolving Loans, (ii) whether such request is for a Borrowing, conversion,
or
continuation, (ii) the requested date of such Borrowing, conversion or
continuation (which shall be a Business Day), (iii) the principal amount
of
Loans to be borrowed, converted or continued, (iv) the Type of Loans to
be
borrowed, converted or continued, and (v) if applicable, the duration of
the
Interest Period with respect thereto. If the Borrower Representative fails
to
specify a Type of Loan in a Loan Notice or if the Borrower Representative
fails
to give a timely notice requesting a conversion or continuation, then the
applicable Loans shall be made as, or converted to, Base Rate Loans. Any
automatic conversion to Base Rate Loans shall be effective as of the last
day of
the Interest Period then in effect with respect to the applicable Eurodollar
Loans. If the Borrower Representative requests a Borrowing of, conversion
to, or
continuation of Eurodollar Loans in any Loan Notice, but fails to specify
an
Interest Period, the Interest Period will be deemed to be one
month.
(b) Following
receipt of a Loan Notice, the Administrative Agent shall promptly notify
each
Lender of the amount of its Commitment Percentage of the applicable Loans,
and
if no timely notice of a conversion or continuation is provided by the
Borrower
Representative, the Administrative Agent shall notify each Lender of the
details
of any automatic conversion to Base Rate Loans described in the preceding
subsection. In the case of a Borrowing, each Lender shall make the amount
of its
Loan available to the Administrative Agent in immediately available funds
at the
Administrative Agent’s Office not later than 2:00 p.m. on the Business Day
specified in the applicable Loan Notice. Upon satisfaction of the applicable
conditions set forth in Section 4.02
(and, if
such Borrowing is the initial Extension of Credit, Section 4.01),
the
Administrative Agent shall make all funds so received available to the
party
referenced in the applicable Loan Notice in like funds as received by the
Administrative Agent either by (i) crediting the account of the applicable
party
on the books of the Administrative Agent with the amount of such funds
or (ii)
wire transfer of such funds, in each case in accordance with instructions
provided to (and reasonably acceptable to) the Administrative Agent by
the
Borrower Representative; provided, however, that if, on the date the Loan
Notice
with respect to such Borrowing is given by the Borrower Representative,
there
are Swing Line Loans or L/C Borrowings outstanding, then the proceeds of
such
Borrowing shall be applied, first, to the payment in full of any such L/C
Borrowings, second, to the payment in full of any such Swing Line Loans,
and
third, to the party identified in the applicable Loan Notice as provided
above.
(c) Except
as
otherwise provided herein, without the consent of the Required Lenders,
(i) a
Eurodollar Loan may be continued or converted only on the last day of an
Interest Period for such Eurodollar Loan and (ii) any conversion into,
or
continuation as, a Eurodollar Loan may be made only if the conditions to
Extension of Credits in Section 4.02
have
been satisfied. During the existence of a Default or Event of Default,
(i) no
Loan may be requested as, converted to or continued as a Eurodollar Loan
and
(ii) at the request of the Required Lenders, any outstanding Eurodollar
Loan
shall be converted immediately to a Base Rate Loan.
(d) The
Administrative Agent shall promptly notify the Borrower Representative
and the
Lenders of the interest rate applicable to any Interest Period for Eurodollar
Loans upon determination of such interest rate. The determination of the
Eurodollar Rate by the Administrative Agent shall be conclusive in the
absence
of manifest error. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the Borrower Representative and the Lenders
of
any change in Bank of America’s prime rate used in determining the Base Rate
promptly following the public announcement of such change.
(e) After
giving effect to all Borrowings, all conversions of Loans from one Type
to the
other, and all continuations of Loans as the same Type, there shall not
be more
than five (5) Interest Periods in effect with respect to
Loans.
2.03 Additional
Provisions with respect to Letters of Credit.
(a) Obligation
to Issue or Amend.
(i) The
L/C
Issuer shall not issue any Letter of Credit if:
(A) the
issuance of such Letter of Credit would violate one or more policies of
the L/C
Issuer; or
(B) such
Letter of Credit is in an initial amount less than $50,000, is to be denominated
in a currency other than Dollars or is not a standby letter of
credit.
(ii) The
L/C
Issuer shall be under no obligation to issue any Letter of Credit
if:
(A) any
order, judgment or decree of any Governmental Authority or arbitrator shall
by
its terms purport to enjoin or restrain the L/C Issuer from issuing such
Letter
of Credit, or any Law applicable to the L/C Issuer or any request or directive
(whether or not having the force of law) from any Governmental Authority
with
jurisdiction over the L/C Issuer shall prohibit, or request that the L/C
Issuer
refrain from, the issuance of letters of credit generally or such Letter
of
Credit in particular or shall impose upon the L/C Issuer with respect to
such
Letter of Credit any restriction, reserve or capital requirement (for which
the
L/C Issuer is not otherwise compensated hereunder) not in effect on the
Closing
Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or
expense
that was not applicable on the Closing Date and that the L/C Issuer in
good
faith deems material to it;
(B) the
expiry date of such requested Letter of Credit would occur more than twelve
(12)
months after the date of issuance or last renewal, unless the Required
Lenders
have approved such expiry date;
(C) the
expiry date of such requested Letter of Credit would occur after the Letter
of
Credit Expiration Date, unless all the Lenders have approved such expiry
date;
(D) one
or
more applicable conditions contained in Section 4.02
shall
not then be satisfied and the L/C Issuer shall have received written notice
thereof from any Lender or any Credit Party at least one Business Day prior
to
the requested date of issuance of such Letter of Credit;
(E) a
default
of any Lender’s obligations to fund under Section 2.03(c)
exists
or any Lender is at such time a Defaulting Lender hereunder, unless the
L/C
Issuer has entered into satisfactory arrangements with the Borrower or
such
Lender to eliminate the L/C Issuer’s risk with respect to such Lender;
or
(F) the
Revolving Commitments have been terminated pursuant to Article
VIII.
(iii) The
L/C
Issuer shall be under no obligation to amend any Letter of Credit
if:
(A) the
L/C
Issuer would have no obligation at such time to issue such Letter of Credit
in
its amended form under the terms hereof; or
(B) the
beneficiary of such Letter of Credit does not accept the proposed amendment
to
such Letter of Credit.
(iv) The
L/C
Issuer shall not amend any Letter of Credit if:
(A) one
or
more applicable conditions contained in Section 4.02
shall
not then be satisfied and the L/C Issuer shall have received written notice
thereof from any Lender or any Credit Party at least one Business Day prior
to
the requested date of amendment of such Letter of Credit; or
(B) the
Revolving Commitments have been terminated pursuant to Article
VIII.
(b) Procedures
for Issuance and Amendment.
(i) Each
Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower Representative delivered to the L/C Issuer (with
a copy
to the Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of the Parent.
Such
Letter of Credit Application must be received by the L/C Issuer and the
Administrative Agent not later than 11:00 a.m. at least two (2)
Business Days (or such later date and time as the L/C Issuer may agree
in a
particular instance in its sole discretion) prior to the proposed issuance
date
or date of amendment, as the case may be. In the case of a request for
an
initial issuance of a Letter of Credit, such Letter of Credit Application
shall
specify in form and detail satisfactory to the L/C Issuer: (A) the proposed
issuance date of the requested Letter of Credit (which shall be a Business
Day);
(B) the amount thereof; (C) the expiry date thereof; (D) the name and address
of
the beneficiary thereof; (E) the documents to be presented by such beneficiary
in case of any drawing thereunder; (F) the full text of any certificate
to be
presented by such beneficiary in case of any drawing thereunder; and (G)
such
other matters as the L/C Issuer may require. In the case of a request for
an
amendment of any outstanding Letter of Credit, such Letter of Credit Application
shall specify in form and detail satisfactory to the L/C Issuer (A) the
Letter
of Credit to be amended; (B) the proposed date of amendment thereof (which
shall
be a Business Day); (C) the nature of the proposed amendment; and (D) such
other
matters as the L/C Issuer may require.
(ii) Promptly
after receipt of any Letter of Credit Application, the L/C Issuer will
confirm
with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application
from the Borrower Representative and, if not, the L/C Issuer will provide
the
Administrative Agent with a copy thereof. Upon receipt by the L/C Issuer
of
confirmation from the Administrative Agent that the requested issuance
or
amendment is permitted in accordance with the terms hereof, then, subject
to the
terms and conditions hereof, the L/C Issuer shall, on the requested date,
issue
a Letter of Credit for the account of the applicable Person or enter into
the
applicable amendment, as the case may be, in each case in accordance with
the
L/C Issuer’s usual and customary business practices. Immediately upon the
issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby
irrevocably and unconditionally agrees to, purchase from the L/C Issuer
a risk
participation in such Letter of Credit in an amount equal to the product
of such
Lender’s Revolving Commitment Percentage of such Letter of Credit.
(iii) Promptly
after its delivery of any Letter of Credit or any amendment to a Letter
of
Credit to an advising bank with respect thereto or to the beneficiary thereof,
the L/C Issuer will also deliver to the Borrower Representative and the
Administrative Agent a true and complete copy of such Letter of Credit
or
amendment.
(c) Drawings
and Reimbursements; Funding of Participations.
(i) Upon
any
drawing under any Letter of Credit, the L/C Issuer shall notify the Borrower
Representative and the Administrative Agent thereof. Not later than
11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of
Credit (each such date, an “Honor
Date”),
the
Borrower Representative shall reimburse the L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing.
If the
Borrower Representative fails to so reimburse the L/C Issuer by such time,
the
Administrative Agent shall promptly notify each Lender of the Honor Date,
the
amount of the unreimbursed drawing (the “Unreimbursed
Amount”),
and
the amount of such Lender’s Revolving Commitment Percentage thereof. In such
event, the Borrower Representative shall be deemed to have requested a
Borrowing
of Base Rate Loans to be disbursed on the Honor Date in an amount equal
to the
Unreimbursed Amount, without regard to the minimum and multiples specified
in
Section 2.02
for the
principal amount of Base Rate Loans, the amount of the unutilized portion
of the
Aggregate Revolving Commitments or the conditions set forth in Section 4.02.
Any
notice given by the L/C Issuer or the Administrative Agent pursuant to
this
Section 2.03(c)(i)
may be
given by telephone if immediately confirmed in writing; provided that the
lack
of such an immediate confirmation shall not affect the conclusiveness or
binding
effect of such notice.
(ii) Each
Lender (including the Lender acting as L/C Issuer) shall upon any notice
pursuant to Section 2.03(c)(i)
make
funds available to the Administrative Agent for the account of the L/C
Issuer at
the Administrative Agent’s Office in an amount equal to its Revolving Commitment
Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the
Business Day specified in such notice by the Administrative Agent, whereupon,
subject to the provisions of Section 2.03(c)(iii),
each
Lender that so makes funds available shall be deemed to have made a Revolving
Loan that is a Base Rate Loan to the Borrower Representative in such amount.
The
Administrative Agent shall remit the funds so received to the L/C
Issuer.
(iii) With
respect to any Unreimbursed Amount that is not fully refinanced by a Borrowing
of Base Rate Loans for any reason, the Borrower Representative shall be
deemed
to have incurred from the L/C Issuer an L/C Borrowing in the amount of
the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall
be due
and payable on demand (together with interest) and shall bear interest
at the
Default Rate. In such event, each Lender’s payment to the Administrative Agent
for the account of the L/C Issuer pursuant to Section 2.03(c)(ii)
shall be
deemed payment in respect of its participation in such L/C Borrowing and
shall
constitute an L/C Advance from such Lender in satisfaction of its participation
obligation under this Section 2.03.
(iv) Until
each Lender funds its Revolving Loan or L/C Advance pursuant to this
Section 2.03(c)
to
reimburse the L/C Issuer for any amount drawn under any Letter of Credit,
interest in respect of such Lender’s Revolving Commitment Percentage of such
amount shall be solely for the account of the L/C Issuer.
(v) Each
Lender’s obligation to make Revolving Loans or L/C Advances to reimburse the L/C
Issuer for amounts drawn under Letters of Credit, as contemplated by this
Section 2.03(c),
shall
be absolute and unconditional and shall not be affected by any circumstance,
including (A) any set-off, counterclaim, recoupment, defense or other right
that
such Lender may have against the L/C Issuer, the Borrowers or any other
Person
for any reason whatsoever; (B) the occurrence or continuance of a Default
or
Event of Default, (C) non-compliance with the conditions set forth in
Section 4.02,
or (D)
any other occurrence, event or condition, whether or not similar to any
of the
foregoing. No such making of an L/C Advance shall relieve or otherwise
impair
the obligation of the Borrowers to reimburse the L/C Issuer for the amount
of
any payment made by the L/C Issuer under any Letter of Credit, together
with
interest as provided herein.
(vi) If
any
Lender fails to make available to the Administrative Agent for the account
of
the L/C Issuer any amount required to be paid by such Lender pursuant to
the
foregoing provisions of this Section 2.03(c)
by the
time specified in Section 2.03(c)(ii),
the L/C
Issuer shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for
the
period from the date such payment is required to the date on which such
payment
is immediately available to the L/C Issuer at a rate per annum equal to
the
Federal Funds Rate from time to time in effect. A certificate of the L/C
Issuer
submitted to any Lender (through the Administrative Agent) with respect
to any
amounts owing under this clause (vi) shall be conclusive absent manifest
error.
(d) Repayment
of Participations.
(i) At
any
time after the L/C Issuer has made a payment under any Letter of Credit
and has
received from any Lender such Lender’s L/C Advance in respect of such payment in
accordance with Section 2.03(c),
if the
Administrative Agent receives for the account of the L/C Issuer any payment
in
respect of the related Unreimbursed Amount or interest thereon (whether
directly
from a Credit Party or otherwise, including proceeds of Cash Collateral
applied
thereto by the Administrative Agent), the Administrative Agent will distribute
to such Lender its Revolving Commitment Percentage thereof (appropriately
adjusted, in the case of interest payments, to reflect the period of time
during
which such Lender’s L/C Advance was outstanding) in the same funds as those
received by the Administrative Agent.
(ii) If
any
payment received by the Administrative Agent for the account of the L/C
Issuer
pursuant to Section 2.03(c)(i)
is
required to be returned under any of the circumstances described in Section 10.06
(including pursuant to any settlement entered into by the L/C Issuer in
its
discretion), each Lender shall pay to the Administrative Agent for the
account
of the L/C Issuer its Revolving Commitment Percentage thereof on demand
of the
Administrative Agent, plus interest thereon from the date of such demand
to the
date such amount is returned by such Lender, at a rate per annum equal
to the
Federal Funds Rate from time to time in effect.
(e) Obligations
Absolute. The obligations of the Borrowers to reimburse the L/C Issuer
for each
drawing under each Letter of Credit and to repay each L/C Borrowing shall
be
absolute, unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Credit Agreement under all circumstances,
including the following:
(i) any
lack
of validity or enforceability of such Letter of Credit, this Credit Agreement,
any other Credit Document or any other agreement or instrument relating
thereto;
(ii) the
existence of any claim, counterclaim, set-off, defense or other right that
the
Borrowers may have at any time against any beneficiary or any transferee
of such
Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the L/C Issuer or any other Person, whether
in
connection with this Credit Agreement, the transactions contemplated hereby
or
by such Letter of Credit or any agreement or instrument relating thereto,
or any
unrelated transaction;
(iii) any
draft, demand, certificate or other document presented under such Letter
of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect
or any statement therein being untrue or inaccurate in any respect; or
any loss
or delay in the transmission or otherwise of any document required in order
to
make a drawing under such Letter of Credit;
(iv) any
payment by the L/C Issuer under such Letter of Credit against presentation
of a
draft or certificate that does not strictly comply with the terms of such
Letter
of Credit; or any payment made by the L/C Issuer under such Letter of Credit
to
any Person purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of
such
Letter of Credit, including any arising in connection with any proceeding
under
any Debtor Relief Law; or
(v) any
other
circumstance or happening whatsoever, whether or not similar to any of
the
foregoing, including any other circumstance that might otherwise constitute
a
defense available to, or a discharge of, the Borrowers.
The
Borrower Representative shall promptly examine a copy of each Letter of
Credit
and each amendment thereto that is delivered to it and, in the event of
any
claim of noncompliance with the Borrower Representative’s instructions or other
irregularity, the Borrower Representative will immediately notify the L/C
Issuer. The Borrowers shall be conclusively deemed to have waived any such
claim
against the L/C Issuer and its correspondents unless such notice is given
as
aforesaid.
(f) Role
of
L/C Issuer. Each Revolving Lender and each Borrower agree that, in paying
any
drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain
or
inquire as to the validity or accuracy of any such document or the authority
of
the Person executing or delivering any such document. None of the L/C Issuer,
any Agent-Related Person nor any of the correspondents, participants or
assignees of the L/C Issuer shall be liable to any Revolving Lender for
(i) any
action taken or omitted in connection herewith at the request or with the
approval of the Lenders or the Required Lenders, as applicable; (ii) any
action
taken or omitted in the absence of gross negligence or willful misconduct;
or
(iii) the due execution, effectiveness, validity or enforceability of any
document or instrument related to any Letter of Credit or Letter of Credit
Application. The Borrowers hereby assume all risks of the acts or omissions
of
any beneficiary or transferee with respect to its use of any Letter of
Credit;
provided, however, that this assumption is not intended to, and shall not,
preclude a Borrower’s pursuing such rights and remedies as it may have against
the beneficiary or transferee at law or under any other agreement. None
of the
L/C Issuer, any Agent-Related Person, nor any of the respective correspondents,
participants or assignees of the L/C Issuer, shall be liable or responsible
for
any of the matters described in clauses (i) through (v) of Section 2.03(e);
provided, however, that anything in such clauses to the contrary
notwithstanding, the Borrowers may have a claim against the L/C Issuer,
and the
L/C Issuer may be liable to the Borrowers, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Borrowers which the Borrowers prove were caused by the
L/C
Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful
failure to pay under any Letter of Credit after the presentation to it
by the
beneficiary of a sight draft and certificate(s) strictly complying with
the
terms and conditions of a Letter of Credit. In furtherance and not in limitation
of the foregoing, the L/C Issuer may accept documents that appear on their
face
to be in order, without responsibility for further investigation, regardless
of
any notice or information to the contrary, and the L/C Issuer shall not
be
responsible for the validity or sufficiency of any instrument transferring
or
assigning or purporting to transfer or assign a Letter of Credit or the
rights
or benefits thereunder or proceeds thereof, in whole or in part, which
may prove
to be invalid or ineffective for any reason.
(g) Cash
Collateral. Upon the request of the Administrative Agent or the Required
Lenders, (i) if the L/C Issuer has honored any full or partial drawing
request
under any Letter of Credit and such drawing has resulted in an L/C Borrowing,
or
(ii) if, as of the Letter of Credit Expiration Date, any Letter of Credit
may
for any reason remain outstanding and partially or wholly undrawn, the
Borrower
Representative shall immediately Cash Collateralize the then Outstanding
Amount
of all L/C Obligations (in an amount equal to such Outstanding Amount determined
as of the date of such L/C Borrowing or the Letter of Credit Expiration
Date, as
the case may be). For purposes hereof, “Cash
Collateralize”
means
to pledge and deposit with or deliver to the Administrative Agent, for
the
benefit of the L/C Issuer and the Revolving Lenders, as collateral for
the L/C
Obligations, cash or deposit account balances pursuant to documentation
in form
and substance satisfactory to the Administrative Agent and the L/C Issuer
(which
documents are hereby consented to by the Revolving Lenders). Derivatives
of such
term have corresponding meanings. Each Borrower hereby grants to the
Administrative Agent, for the benefit of the L/C Issuer and the Revolving
Lenders, a security interest in all such cash, deposit accounts and all
balances
therein and all proceeds of the foregoing. Cash collateral shall be maintained
in blocked, non-interest bearing deposit accounts with the Administrative
Agent.
(h) Applicability
of ISP98 and UCP. Unless otherwise expressly agreed by the L/C Issuer and
the
Borrower Representative when a Letter of Credit is issued, the rules of
the
“International Standby Practices 1998” published by the Institute of
International Banking Law & Practice (or such later version thereof as may
be in effect at the time of issuance) shall apply to each Letter of
Credit.
(i) Letter
of
Credit Fees. The Borrowers shall pay Letter of Credit fees as set forth
in
Section 2.09.
(j) Conflict
with Letter of Credit Application. In the event of any conflict between
the
terms hereof and the terms of any Letter of Credit Application, the terms
hereof
shall control.
2.04 Additional
Provisions with respect to Swing Line Loans.
(a) Borrowing
Procedures.
Each
Swing Line Borrowing shall be made upon the Borrower Representative’s
irrevocable notice to the Swing Line Lender and the Administrative Agent,
which
may be given by telephone. Each such notice must be received by the Swing
Line
Lender and the Administrative Agent not later than 1:00 p.m. on the
requested borrowing date, and shall specify (i) the amount to be borrowed,
which
shall be a minimum of $100,000, and (ii) the requested borrowing date,
which
shall be a Business Day. Each such telephonic notice must be confirmed
promptly
by delivery to the Swing Line Lender and the Administrative Agent of a
written
Loan Notice, appropriately completed and signed by a Responsible Officer
of the
Parent. Promptly after receipt by the Swing Line Lender of any telephonic
Loan
Notice, the Swing Line Lender will confirm with the Administrative Agent
(by
telephone or in writing) that the Administrative Agent has also received
such
Loan Notice and, if not, the Swing Line Lender will notify the Administrative
Agent (by telephone or in writing) of the contents thereof. Unless the
Swing
Line Lender has received notice (by telephone or in writing) from the
Administrative Agent (including at the request of any Lender) prior to
2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing
the Swing Line Lender not to make such Swing Line Loan as a result of the
limitations set forth in this Article II, or (B) that one or more of the
applicable conditions specified in Section 4.02
is not
then satisfied, then, subject to the terms and conditions hereof, the Swing
Line
Lender will, not later than 3:00 p.m. on the borrowing date specified in
such Loan Notice, make the amount of its Swing Line Loan available to the
Borrower Representative by crediting the account of the Borrower Representative
on the books of the Swing Line Lender in immediately available
funds.
(b) Refinancing.
(i) The
Swing
Line Lender at any time in its sole and absolute discretion may request,
on
behalf of the Borrowers (which hereby irrevocably authorizes the Swing
Line
Lender to so request on its behalf), that each Lender make a Revolving
Loan that
is a Base Rate Loan in an amount equal to such Lender’s Revolving Commitment
Percentage of Swing Line Loans then outstanding. Such request shall be
made in
writing (which written request shall be deemed to be a Loan Notice for
purposes
hereof) and in accordance with the requirements of Section 2.02,
without
regard to the minimum and multiples specified therein for the principal
amount
of Base Rate Loans, the unutilized portion of the Aggregate Commitments
or the
conditions set forth in Section 4.02.
The
Swing Line Lender shall furnish the Borrower Representative with a copy
of the
applicable Loan Notice promptly after delivering such notice to the
Administrative Agent. Each Lender shall make an amount equal to its Revolving
Commitment Percentage of the amount specified in such Loan Notice available
to
the Administrative Agent in immediately available funds for the account
of the
Swing Line Lender at the Administrative Agent’s Office not later than
2:00 p.m. on the day specified in such Loan Notice, whereupon, subject to
Section 2.04(c)(ii),
each
Lender that so makes funds available shall be deemed to have made a Revolving
Loan that is a Base Rate Loan to the Borrowers in such amount. The
Administrative Agent shall remit the funds so received to the Swing Line
Lender.
(ii) If
for
any reason any Swing Line Loan cannot be refinanced by such a Borrowing
of
Revolving Loans in accordance with Section 2.04(c)(i),
the
request for Revolving Loans submitted by the Swing Line Lender as set forth
herein shall be deemed to be a request by the Swing Line Lender that each
of the
Lenders fund its risk participation in the relevant Swing Line Loan and
each
Lender’s payment to the Administrative Agent for the account of the Swing Line
Lender pursuant to Section 2.04(c)(i)
shall be
deemed payment in respect of such participation.
(iii) If
any
Lender fails to make available to the Administrative Agent for the account
of
the Swing Line Lender any amount required to be paid by such Lender pursuant
to
the foregoing provisions of this Section 2.04(c)
by the
time specified in Section 2.04(c)(i),
the
Swing Line Lender shall be entitled to recover from such Lender (acting
through
the Administrative Agent), on demand, such amount with interest thereon
for the
period from the date such payment is required to the date on which such
payment
is immediately available to the Swing Line Lender at a rate per annum equal
to
the Federal Funds Rate from time to time in effect. A certificate of the
Swing
Line Lender submitted to any Lender (through the Administrative Agent)
with
respect to any amounts owing under this clause (iii) shall be conclusive
absent manifest error.
(iv) Each
Lender’s obligation to make Revolving Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.04(c)
shall be
absolute and unconditional and shall not be affected by any circumstance,
including (A) any set-off, counterclaim, recoupment, defense or other right
that
such Lender may have against the Swing Line Lender, the Borrowers or any
other
Person for any reason whatsoever, (B) the occurrence or continuance of
a Default
or Event of Default, (C) non-compliance with the conditions set forth in
Section 4.02,
or (D)
any other occurrence, event or condition, whether or not similar to any
of the
foregoing. No such purchase or funding of risk participations shall relieve
or
otherwise impair the obligation of the Borrowers to repay Swing Line Loans,
together with interest as provided herein.
(c) Repayment
of Participations.
(i) At
any
time after any Lender has purchased and funded a risk participation in
a Swing
Line Loan, if the Swing Line Lender receives any payment on account of
such
Swing Line Loan, the Swing Line Lender will distribute to such Lender its
Revolving Commitment Percentage of such payment (appropriately adjusted,
in the
case of interest payments, to reflect the period of time during which such
Lender’s risk participation was funded) in the same funds as those received by
the Swing Line Lender.
(ii) If
any
payment received by the Swing Line Lender in respect of principal or interest
on
any Swing Line Loan is required to be returned by the Swing Line Lender
under
any of the circumstances described in Section 9.06 (including pursuant to
any settlement entered into by the Swing Line Lender in its discretion),
each
Lender shall pay to the Swing Line Lender its Revolving Commitment Percentage
thereof on demand of the Administrative Agent, plus interest thereon from
the
date of such demand to the date such amount is returned, at a rate per
annum
equal to the Federal Funds Rate. The Administrative Agent will make such
demand
upon the request of the Swing Line Lender.
(d) Interest
for Account of Swing Line Lender. The Swing Line Lender shall be responsible
for
invoicing the Borrowers (by delivery of an invoice or other notice to the
Borrower Representative) for interest on the Swing Line Loans. Until each
Lender
funds its Revolving Loan or risk participation pursuant to this Section 2.04
to
refinance such Lender’s Revolving Commitment Percentage of any Swing Line Loan,
interest in respect thereof shall be solely for the account of the Swing
Line
Lender.
(e) Payments
Directly to Swing Line Lender. The Borrower Representative shall make all
payments of principal and interest in respect of the Swing Line Loans directly
to the Swing Line Lender.
2.05 Repayment
of Loans.
(a) Revolving
Loans.
The
Borrowers shall repay to the Lenders on the Termination Date the aggregate
principal amount of Revolving Loans outstanding on such date.
(b) Swing
Line Loans.
The
Borrowers shall repay each Swing Line Loan on the earliest to occur of
(i) the
date five (5) Business Days after such Loan is made and (ii) the
Termination Date.
2.06 Prepayments.
(a) Voluntary
Prepayments.
The
Loans may be repaid in whole or in part without premium or penalty (except,
in
the case of Loans other than Base Rate Loans, amounts payable pursuant
to
Section 3.05);
provided that (i) notice thereof must be received by 11:00 a.m. by the
Administrative Agent (A) at least three (3) Business Days prior to the date
of prepayment of Eurodollar Loans, and (B) on the Business Day prior to
the date
of prepayment of Base Rate Loans, and (ii) any such prepayment shall be
in a
minimum principal amount of $1,000,000 and integral multiples of $1,000,000
in
excess thereof, in the case of Eurodollar Loans, and a minimum principal
amount
of $500,000 and integral multiples of $100,000 in excess thereof, in the
case of
Base Rate Loans, or, in each case, the entire principal amount thereof,
if less.
Each such notice of voluntary repayment hereunder shall be irrevocable
and shall
specify the date and amount of prepayment and the Loans and Types of Loans
which
are to be prepaid. The Administrative Agent will give prompt notice to
the
applicable Lenders of any prepayment on the Loans and the Lender’s interest
therein. Prepayments of Eurodollar Loans hereunder shall be accompanied
by
accrued interest thereon and breakage amounts, if any, under Section 3.05.
(b) Mandatory
Prepayments.
If at
any time (A) the aggregate principal amount of Revolving Obligations shall
exceed the lesser of (x) the Aggregate Revolving Committed Amount and (y)
the
Borrowing Base Amount for such date, (B) the aggregate principal amount
of L/C
Obligations shall exceed the L/C Committed Amount, (C) the aggregate principal
amount of Swing Line Loans shall exceed the Swing Line Committed Amount,
immediate prepayment will be made on the Revolving Loans and/or to provide
Cash
Collateral to the L/C Obligations in an amount equal to such excess; provided,
however, that Cash Collateral will not be provided to the L/C Obligations
hereunder until the Revolving Loans and Swing Line Loans have been paid
in
full.
(c) Application.
Within
each Loan, prepayments will be applied first to Base Rate Loans, then to
Eurodollar Loans in direct order of Interest Period maturities. In
addition:
(i) Voluntary
Prepayments.
Voluntary prepayments shall be applied as specified by the Borrowers. Voluntary
prepayments on the Revolving Obligations will be paid by the Administrative
Agent to the Lenders ratably in accordance with their respective interests
therein.
(ii) Mandatory
Prepayments.
Mandatory prepayments on the Revolving Obligations will be paid by the
Administrative Agent to the Lenders ratably in accordance with their respective
interests therein; provided that mandatory prepayments in respect of the
Revolving Commitments under subsection (b)(i) above shall be applied to the
respective Revolving Obligations as appropriate.
2.07 Termination
or Reduction of Commitments.
The
Commitments hereunder may be permanently reduced in whole or in part by
notice
from the Borrower Representative to the Administrative Agent; provided
that (i)
any such notice thereof must be received by 11:00 a.m. at least
five (5) Business Days prior to the date of reduction or termination and
any such prepayment shall be in a minimum principal amount of $5,000,000
and
integral multiples of $1,000,000 in excess thereof; and (ii) the Commitments
may
not be reduced to an amount less than the Revolving Obligations then
outstanding. The Administrative Agent will give prompt notice to the Lenders
of
any such reduction in Commitments. Any reduction of the Aggregate Commitments
shall be applied to the Commitment of each Lender according to its Commitment
Percentage thereof. All commitment or other fees accrued until the effective
date of any termination of the Aggregate Commitments shall be paid on the
effective date of such termination.
2.08 Interest.
(a) Subject
to the provisions of subsection (b) below, (i) each Eurodollar Loan (other
than Swing Line Loans) shall bear interest on the outstanding principal
amount
thereof for each Interest Period at a rate per annum equal to the Eurodollar
Rate for such Interest Period plus the Applicable Percentage; (ii) each
Loan
that is a Base Rate Loan shall bear interest on the outstanding principal
amount
thereof from the applicable borrowing date at a rate per annum equal to
the Base
Rate plus the Applicable Percentage; and (iii) each Swing Line Loan shall
bear
interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Daily Floating Eurodollar
Rate
plus the Applicable Percentage.
(b) If
any
amount payable by the Borrowers under any Credit Document is not paid when
due
(without regard to any applicable grace periods), whether at stated maturity,
by
acceleration or otherwise, such amount shall thereafter bear interest at
a
fluctuating interest rate per annum at all times equal to the Default Rate
to
the fullest extent permitted by applicable Law. Furthermore, upon the written
request of the Required Lenders, while any Event of Default exists, the
Borrowers shall pay interest on the principal amount of all outstanding
Obligations hereunder at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable
Law.
Accrued and unpaid interest on past due amounts (including interest on
past due
interest) shall be due and payable upon demand.
(c) Interest
on each Loan shall be due and payable in arrears on each Interest Payment
Date
applicable thereto and at such other times as may be specified herein.
Interest
hereunder shall be due and payable in accordance with the terms hereof
before
and after judgment, and before and after the commencement of any proceeding
under any Debtor Relief Law.
2.09 Fees.
(a) Unused
Fee.
From
and after the Closing Date, the Borrowers agree to pay the Administrative
Agent
for the ratable benefit of the Lenders an unused fee (the “Unused
Fee”)
for
each calendar quarter (or portion thereof) in an amount equal to the sum
of the
Daily Unused Fees incurred during such period. The Unused Fee shall accrue
at
all times during the Commitment Period (and thereafter so long as Revolving
Obligations shall remain outstanding), including periods during which the
conditions to Extensions of Credit in Section 4.02
may not
be met, and shall be payable quarterly in arrears on the last day of each
March,
June, September and December, commencing with the first such date to occur
after the Closing Date, and on the Termination Date (and, if applicable,
thereafter on demand). The Administrative Agent shall distribute the Unused
Fee
to the Lenders pro rata in accordance with the respective Revolving Commitments
of the Lenders.
(b) Upfront
and Other Fees.
The
Borrowers agree to pay to the Administrative Agent for the benefit of the
Lenders the upfront and other fees provided in the Administrative Agent’s Fee
Letter.
(c) Letter
of Credit Fees.
(i) Letter
of
Credit Fee. In consideration of the L/C Commitment hereunder, the Borrowers
agree to pay to the Administrative Agent for the ratable benefit of the
Lenders
an annual fee (the “Letter
of Credit Fee”)
with
respect to each Letter of Credit issued hereunder equal to (A) the Applicable
Percentage per annum multiplied by (B) the average daily maximum amount
available to be drawn under such Letter of Credit (whether or not such
maximum
amount is then in effect under such Letters of Credit) from the date of
issuance
to the date of expiration. The Letter of Credit Fee shall be computed on
a
quarterly basis in arrears and shall be payable quarterly in arrears on
the
first Business Day after the end of each March, June, September and
December, commencing on the first such date to occur after the Closing
Date, and
on the Letter of Credit Expiration Date (and, if applicable, thereafter
on
demand).
(ii) L/C
Issuer Fees. In addition to the Letter of Credit Fee, the Borrowers agree
to pay
to the L/C Issuer for its own account without sharing by the other Lenders
(A)
concurrently with the issuance of each such Letter of Credit, a fronting
and
negotiation fee of one eighth of one percent (0.125%) per annum on the
maximum amount available to be drawn under Letters of Credit issued by
it from
the date of issuance to the date of expiration, and (B) upon the issuance,
amendment, transfer and/or conversion of any Letters of Credit or any other
action or circumstance requiring administrative action on the part of the
L/C
Issuer with respect thereto, customary charges of the L/C Issuer with respect
thereto (collectively, the “L/C
Issuer Fees”).
(d) Administrative
Agent’s Fees. The Borrowers agree to pay the Administrative Agent such fees as
provided in the Administrative Agent’s Fee Letter or as may be otherwise agreed
by the Administrative Agent and the Borrowers from time to time.
(e) Other
Fees.
(i) The
Borrowers shall pay to the Arranger and the Administrative Agent for their
own
respective accounts fees in the amounts and at the times specified in the
Administrative Agent’s Fee Letter. Such fees shall be fully earned when paid and
shall not be refundable for any reason whatsoever.
(ii) The
Borrowers shall pay to the Lenders such fees as shall have been separately
agreed upon in writing in the amounts and at the times so specified. Such
fees
shall be fully earned when paid and shall not be refundable for any reason
whatsoever.
2.10 Computation
of Interest and Fees.
All
computations of interest for Base Rate Loans when the Base Rate is determined
by
Bank of America’s “prime rate” shall be made on the basis of a year of 365 or
366 days, as the case may be, and actual days elapsed. All other computations
of
fees and interest shall be made on the basis of a 360-day year and actual
days
elapsed (which results in more fees or interest, as applicable, being paid
than
if computed on the basis of a 365-day year). Interest shall accrue on each
Loan
for the day on which the Loan is made, and shall not accrue on a Loan,
or any
portion thereof, for the day on which the Loan or such portion is paid,
provided
that any Loan that is repaid on the same day on which it is made shall,
subject
to Section 2.12(a),
bear
interest for one day.
2.11 Payments
Generally.
(a) All
payments to be made by the Borrowers shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein, all payments by the Borrowers hereunder
shall be made to the Administrative Agent, for the account of the Lenders
to
which such payment is owed, at the Administrative Agent’s Office in Dollars and
in immediately available funds not later than 2:00 p.m. on the date
specified herein. The Administrative Agent will promptly distribute to
each
Lender its Commitment Percentage (or other applicable share as provided
herein)
of such payment in like funds as received by wire transfer to such Lender’s
Lending Office. All payments received by the Administrative Agent after
2:00 p.m. shall be deemed received on the immediately succeeding Business
Day and any applicable interest or fee shall continue to accrue.
(b) Subject
to the definition of “Interest Period,” if any payment to be made by the
Borrowers shall come due on a day other than a Business Day, payment shall
be
made on the next following Business Day, and such extension of time shall
be
reflected in computing interest or fees, as the case may be.
(c) Unless
the Borrowers or any Lender has notified the Administrative Agent, prior
to the
date any payment is required to be made by it to the Administrative Agent
hereunder, that the Borrowers or such Lender, as the case may be, will
not make
such payment, the Administrative Agent may assume that the Borrowers or
such
Lender, as the case may be, has timely made such payment and may (but shall
not
be so required to), in reliance thereon, make available a corresponding
amount
to the Person entitled thereto. If and to the extent that such payment
was not
in fact made to the Administrative Agent in immediately available funds,
then:
(i) if
the
Borrowers fail to make such payment, each Lender shall forthwith on demand
repay
to the Administrative Agent the portion of such assumed payment that was
made
available to such Lender in immediately available funds, together with
interest
thereon in respect of each day from and including the date such amount
was made
available by the Administrative Agent to such Lender to the date such amount
is
repaid to the Administrative Agent in immediately available funds at the
Federal
Funds Rate from time to time in effect; and
(ii) if
any
Lender failed to make such payment, such Lender shall forthwith on demand
pay to
the Administrative Agent the amount thereof in immediately available funds,
together with interest thereon for the period from the date such amount
was made
available by the Administrative Agent to the Borrowers to the date such
amount
is recovered by the Administrative Agent (the “Compensation
Period”)
at a
rate per annum equal to the Federal Funds Rate from time to time in effect.
If
such Lender pays such amount to the Administrative Agent, then such amount
shall
constitute such Lender’s Loan included in the applicable Borrowing. If such
Lender does not pay such amount forthwith upon the Administrative Agent’s demand
therefor, the Administrative Agent may make a demand therefor upon the
Borrower,
and the Borrowers shall pay such amount to the Administrative Agent, together
with interest thereon for the Compensation Period at a rate per annum equal
to
the rate of interest applicable to the applicable Borrowing. Nothing herein
shall be deemed to relieve any Lender from its obligation to fulfill its
Commitment or to prejudice any rights that the Administrative Agent or
the
Borrowers may have against any Lender as a result of any default by such
Lender
hereunder.
A
notice
of the Administrative Agent to any Lender or the Borrowers with respect
to any
amount owing under this subsection (c) shall be conclusive, absent manifest
error.
(d) If
any
Lender makes available to the Administrative Agent funds for any Loan to
be made
by such Lender as provided in the foregoing provisions of this Article II,
and such funds are not made available to the Borrowers by the Administrative
Agent because the conditions to the applicable Extension of Credit set
forth in
Section 4.02
are not
satisfied or waived in accordance with the terms hereof or for any other
reason,
the Administrative Agent shall return such funds (in like funds as received
from
such Lender) to such Lender, without interest.
(e) The
obligations of the Lenders hereunder to make Loans and to fund participations
in
Letters of Credit and Swing Line Loans are several and not joint. The failure
of
any Lender to make any Loan or to fund any such participation on any date
required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, nor relieve Borrowers from any obligations
hereunder to the Lenders which fulfill such obligations and no Lender shall
be
responsible for the failure of any other Lender to so make its Loan or
purchase
its participation.
(f) Nothing
herein shall be deemed to obligate any Lender to obtain the funds for any
Loan
in any particular place or manner or to constitute a representation by
any
Lender that it has obtained or will obtain the funds for any Loan in any
particular place or manner.
(g) If
at any
time insufficient funds are received by or are available to the Administrative
Agent to pay fully all amounts of principal, L/C Borrowings, interest and
fees
then due hereunder, such funds shall be applied (i) first, toward costs
and
expenses (including Attorney Costs and amounts payable under Article III)
incurred by the Administrative Agent and each Lender, (ii) second, toward
repayment 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 (iii) third, toward repayment of principal and L/C Borrowings
then due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of principal and L/C Borrowings then due to such
parties.
2.12 Sharing
of Payments.
If
any
Lender shall obtain on account of the Loans made by it, or the participations
in
L/C Obligations or in Swing Line Loans held by it (excluding any amounts
applied
by the Swing Line Lender to outstanding Swing Line Loans), any payment
(whether
voluntary, involuntary, through the exercise of any right of set-off, or
otherwise, but excluding any payments made to a Lender in error by the
Administrative Agent (which such payments shall be returned by the Lender
to the
Administrative Agent immediately upon such Lender’s obtaining knowledge that
such payment was made in error)) in excess of its ratable share (or other
share
contemplated hereunder) thereof, such Lender shall immediately (a) notify
the
Administrative Agent of such fact, and (b) purchase from the other Lenders
such
participations in the Loans made by them and/or such subparticipations
in the
participations in L/C Obligations or Swing Line Loans held by them, as
the case
may be, as shall be necessary to cause such purchasing Lender to share
the
excess payment in respect of such Loans or such participations, as the
case may
be, pro rata with each of them; provided, however, that if all or any portion
of
such excess payment is thereafter recovered from the purchasing Lender
under any
of the circumstances described in Section 10.06
(including pursuant to any settlement entered into by the purchasing Lender
in
its discretion), such purchase shall to that extent be rescinded and each
other
Lender shall repay to the purchasing Lender the purchase price paid therefor,
together with an amount equal to such paying Lender’s ratable share (according
to the proportion of (i) the amount of such paying Lender’s required repayment
to (ii) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender in respect
of
the total amount so recovered, without further interest thereon. The Borrowers
agree that any Lender so purchasing a participation from another Lender
may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 10.09)
with
respect to such participation as fully as if such Lender were the direct
creditor of the Borrowers in the amount of such participation. The
Administrative Agent will keep records (which shall be conclusive and binding
in
the absence of manifest error) of participations purchased under this
Section and will in each case notify the Lenders following any such
purchases or repayments. Each Lender that purchases a participation pursuant
to
this Section shall from and after such purchase have the right to give all
notices, requests, demands, directions and other communications under this
Credit Agreement with respect to the portion of the Obligations purchased
to the
same extent as though the purchasing Lender were the original owner of
the
Obligations purchased.
2.13 Evidence
of Debt.
(a) The
Extension of Credits made by each Lender shall be evidenced by one or more
accounts or records maintained by such Lender and by the Administrative
Agent in
the ordinary course of business. The accounts or records maintained by
the
Administrative Agent and each Lender shall be conclusive absent manifest
error
of the amount of the Extension of Credits made by the Lenders to the Borrowers
and the interest and payments thereon. Any failure to so record or any
error in
doing so shall not, however, limit or otherwise affect the obligation of
the
Borrowers hereunder to pay any amount owing with respect to the Obligations.
In
the event of any conflict between the accounts and records maintained by
any
Lender and the accounts and records of the Administrative Agent in respect
of
such matters, the accounts and records of the Administrative Agent shall
control
in the absence of manifest error. The Borrowers shall execute and deliver
to the
Administrative Agent a Note for each Lender, requesting a Note, which Note
shall
evidence such Lender’s Loans in addition to such accounts or records. Each
Lender may attach schedules to its Note and endorse thereon the date, Type
(if
applicable), amount and maturity of its Loans and payments with respect
thereto.
(b) In
addition to the accounts and records referred to in subsection (a), each
Lender and the Administrative Agent shall maintain in accordance with its
usual
practice accounts or records evidencing the purchases and sales by such
Lender
of participations in Letters of Credit and Swing Line Loans. In the event
of any
conflict between the accounts and records maintained by the Administrative
Agent
and the accounts and records of any Lender in respect of such matters,
the
accounts and records of the Administrative Agent shall control in the absence
of
manifest error.
2.14 Joint
and Several Liability of the Borrowers.
(a) Each
of
the Borrowers is accepting joint and several liability hereunder in
consideration of the financial accommodation to be provided by the Lenders
under
this Credit Agreement, for the mutual benefit, directly and indirectly,
of each
of the Borrowers and in consideration of the undertakings of each of the
Borrowers to accept joint and several liability for the obligations of
each of
them.
(b) Each
of
the Borrowers jointly and severally hereby irrevocably and unconditionally
accepts, not merely as a surety but also as a co-debtor, joint and several
liability with the other Borrowers with respect to the payment and performance
of all of the Obligations arising under this Credit Agreement and the other
Credit Documents, it being the intention of the parties hereto that all
the
Obligations shall be the joint and several obligations of each of the Borrowers
without preferences or distinction among them.
(c) If
and to
the extent that any of the Borrowers shall fail to make any payment with
respect
to any of the obligations hereunder as and when due or to perform any of
such
obligations in accordance with the terms thereof, then in each such event,
the
other Borrowers will make such payment with respect to, or perform, such
obligation.
(d) The
obligations of each Borrower under the provisions of this Section 2.14
constitute full recourse obligations of such Borrower, enforceable against
it to
the full extent of its properties and assets, irrespective of the validity,
regularity or enforceability of this Credit Agreement or any other circumstances
whatsoever.
(e) Except
as
otherwise expressly provided herein, each Borrower hereby waives notice
of
acceptance of its joint and several liability, notice of occurrence of
any
Default or Event of Default (except to the extent notice is expressly required
to be given pursuant to the terms of this Credit Agreement), or of any
demand
for any payment under this Credit Agreement (except to the extent demand
is
expressly required to be given pursuant to the terms of this Agreement),
notice
of any action at any time taken or omitted by the Lender under or in respect
of
any of the Obligations hereunder, any requirement of diligence and, generally,
all demands, notices and other formalities of every kind in connection
with this
Credit Agreement. Each Borrower hereby assents to, and waives notice of,
any
extension or postponement of the time for the payment of any of the Obligations
hereunder, the acceptance of any partial payment thereon, any waiver, consent
or
other action or acquiescence by the Lenders at any time or times in respect
of
any default by any Borrower in the performance or satisfaction of any term,
covenant, condition or provision of this Credit Agreement, any and all
other
indulgences whatsoever by the Lenders in respect of any of the Obligations
hereunder, and the taking, addition, substitution or release, in whole
or in
part, at any time or times, of any security for any of such Obligations
or the
addition, substitution or release, in whole or in part, of any Borrower.
Without
limiting the generality of the foregoing, each Borrower assents to any
other
action or delay in acting or any failure to act on the part of the Lender,
including, without limitation, any failure strictly or diligently to assert
any
right or to pursue any remedy or to comply fully with applicable laws or
regulations thereunder which might, but for the provisions of this Section 2.14,
afford
grounds for terminating, discharging or relieving such Borrower, in whole
or in
part, from any of its obligations under this Section 2.14,
it
being the intention of each Borrower that, so long as any of the Obligations
hereunder remain unsatisfied, the obligations of such Borrower under this
Section 2.14
shall
not be discharged except by performance and then only to the extent of
such
performance. The obligations of each Borrower under this Section 2.14
shall
not be diminished or rendered unenforceable by any winding up, reorganization,
arrangement, liquidation, reconstruction or similar proceeding with respect
to
any reconstruction or similar proceeding with respect to any Borrower or
any
Lender. The joint and several liability of the Borrowers hereunder shall
continue in full force and effect notwithstanding any absorption, merger,
amalgamation or any other change whatsoever in the name, membership,
constitution or place of formation of any Borrower or any Lender.
(f) The
provisions of this Section 2.14
are made
for the benefit of the Administrative Agent, L/C issuer, Swing Line Lender,
the
Lenders and their respective successors and assigns, and may be enforced
by any
such Person from time to time against any of the Borrowers as often as
occasion
therefor may arise and without requirement on the part of any Lender first
to
marshal any of its claims or to exercise any of its rights against any
of the
other Borrowers or to exhaust any remedies available to it against any
of the
other Borrowers or to resort to any other source or means of obtaining
payment
of any of the Obligations or to elect any other remedy. The provisions
of this
Section 2.14
shall
remain in effect until all the Obligations hereunder shall have been paid
in
full or otherwise fully satisfied. If at any time, any payment, or any
part
thereof, made in respect of any of the Obligations, is rescinded or must
otherwise be restored or returned by the Lenders upon the insolvency, bankruptcy
or reorganization of any of the Borrowers, or otherwise, the provisions
of this
Section 2.14
will
forthwith be reinstated and in effect as though such payment had not been
made.
(f) Notwithstanding
any provision to the contrary contained herein or in any other of the Credit
Documents, the obligations of each Borrower hereunder shall be limited
to an
aggregate amount equal to the largest amount that would not render its
obligations hereunder subject to avoidance under Section 548 of the
Bankruptcy Code or any comparable provisions of any applicable state
law.
2.15 Appointment
of Parent as Legal Representative for Credit Parties.
Each
of
the Credit Parties hereby appoints the Parent to act as its exclusive legal
representative for all purposes under this Credit Agreement and the other
Credit
Documents (including, without limitation, with respect to all matters related
to
Borrowings and the repayment of Loans and Letters of Credit as described
in
Article II
and
Article III
hereof)
(in such capacity, the “Borrower
Representative”).
Each
of the Credit Parties acknowledges and agrees that (a) the Borrower
Representative may execute such documents on behalf of all the Credit Parties
(whether as Borrowers or Guarantors) as the Borrower Representative deems
appropriate in its reasonable discretion and each Credit Party shall be
bound by
and obligated by all of the terms of any such document executed by the
Borrower
Representative on its behalf, (b) any notice or other communication delivered
by
the Administrative Agent or any Lender hereunder to the Borrower Representative
shall be deemed to have been delivered to each of the Credit Parties and
(c) the
Administrative Agent and each of the Lenders shall accept (and shall be
permitted to rely on) any document or agreement executed by the Borrower
Representative on behalf of the Credit Parties (or any of them). The Borrowers
must act through the Borrower Representative for all purposes under this
Credit
Agreement and the other Credit Documents. Notwithstanding anything contained
herein to the contrary, to the extent any provision in this Credit Agreement
requires any Credit Party to interact in any manner with the Administrative
Agent or the Lenders, such Credit Party shall do so through the Borrower
Representative.
ARTICLE
III
TAXES,
YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Any
and
all payments by any Credit Party to or for the account of the Administrative
Agent or any Lender under any Credit Document shall be made free and clear
of
and without deduction for any and all present or future taxes, duties,
levies,
imposts, deductions, assessments, fees, withholdings or similar charges,
and all
liabilities with respect thereto, excluding, in the case of the Administrative
Agent and each Lender, taxes imposed on or measured by its overall net
income,
and franchise and excise taxes imposed on it (in lieu of net income taxes),
as a
result of a present or former connection between the Administrative Agent
or
such Lender and the jurisdiction of the Governmental Authority imposing
such tax
or any political subdivision or taxing authority thereof or therein (other
than
any such connection arising solely from the Administrative Agent’s or such
Lender’s having executed, delivered or performed its obligations or received a
payment under, or enforced, this Credit Agreement or any other Credit Document)
(all such non-excluded taxes, duties, levies, imposts, deductions, assessments,
fees, withholdings or similar charges, and liabilities being hereinafter
referred to as “Taxes”).
If
any Credit Party shall be required by any Laws to deduct any Taxes from
or in
respect of any sum payable under any Credit Document to the Administrative
Agent
or any Lender, (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), each of the Administrative Agent and
such
Lender receives an amount equal to the sum it would have received had no
such
deductions been made, (ii) such Credit Party shall make such deductions,
(iii)
such Credit Party shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable Laws, and (iv)
within
thirty (30) days after the date of such payment, such Credit Party shall
furnish
to the Administrative Agent (which shall forward the same to such Lender)
the
original or a certified copy of a receipt evidencing payment
thereof.
(b) In
addition, the Borrowers agree to pay any and all present or future stamp,
court
or documentary taxes or charges or similar levies which arise from any
payment
made under any Credit Document or from the execution, delivery, performance,
enforcement or registration of, or otherwise with respect to, any Credit
Document (hereinafter referred to as “Other
Taxes”).
For
the
avoidance of doubt, “Other Taxes” shall not include any taxes assessed on the
net or gross income of a taxpayer, regardless of whether such taxes are
designated excise or property taxes.
(c) If
the
Borrowers shall be required to deduct or pay any Taxes or Other Taxes from
or in
respect of any sum payable under any Credit Document to the Administrative
Agent
or any Lender, the Borrowers shall also pay to the Administrative Agent
or to
such Lender, as the case may be, at the time interest is paid, such additional
amount that the Administrative Agent or such Lender specifies is necessary
to
preserve the after-tax yield (after factoring in all taxes, including taxes
imposed on or measured by net income) that the Administrative Agent or
such
Lender would have received if such Taxes or Other Taxes had not been
imposed.
(d) The
Borrowers agree to indemnify the Administrative Agent and each Lender for
(i)
the full amount of Taxes and Other Taxes (including any Taxes or Other
Taxes
imposed or asserted by any jurisdiction on amounts payable under this Section)
that are paid by the Administrative Agent and such Lender and that are
the
responsibility of the Borrowers, (ii) amounts payable under Section 3.01(c)
and
(iii) any liability (including additions to tax, penalties, interest and
expenses) arising therefrom or with respect thereto, in each case whether
or not
such Taxes or Other Taxes were correctly or legally imposed or asserted
by the
relevant Governmental Authority. Payment under this subsection (d) shall be
made within thirty (30) days after the date the Lender or the Administrative
Agent makes a written demand therefor.
3.02 Illegality.
If
any
Lender determines that any Law has made it unlawful, or that any Governmental
Authority has asserted that it is unlawful, for any Lender or its applicable
Lending Office to make, maintain or fund Eurodollar Rate Loans, or to determine
or charge interest rates based upon the Eurodollar Rate, then, on notice
thereof
by such Lender to the Borrowers through the Administrative Agent, any obligation
of such Lender to make or continue Eurodollar Rate Loans or to convert
Base Rate
Loans to Eurodollar Rate Loans shall be suspended until such Lender notifies
the
Administrative Agent and the Borrowers that the circumstances giving rise
to
such determination no longer exist. Upon receipt of such notice, the Borrowers
shall, upon demand from such Lender (with a copy to the Administrative
Agent),
prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender
to
Base Rate Loans, either on the last day of the Interest Period therefor,
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. Upon any such prepayment or conversion, the Borrowers
shall also pay accrued interest on the amount so prepaid or converted.
Each
Lender agrees to designate a different Lending Office if such designation
will
avoid the need for such notice and will not, in the good faith judgment
of such
Lender, otherwise be materially disadvantageous to such Lender.
3.03 Inability
to Determine Rates.
If
the
Required Lenders determine that for any reason adequate and reasonable
means do
not exist for determining the Eurodollar Rate for any requested Interest
Period
with respect to a proposed Eurodollar Rate Loan, or that the Eurodollar
Rate for
any requested Interest Period with respect to a proposed Eurodollar Rate
Loan
does not adequately and fairly reflect the cost to such Lenders of funding
such
Loan, the Administrative Agent will promptly so notify the Parent and each
Lender. Thereafter, the obligation of the Lenders to make or maintain Eurodollar
Rate Loans shall be suspended until the Administrative Agent (upon the
instruction of the Required Lenders) revokes such notice. Upon receipt
of such
notice, the Borrowers may revoke any pending request for a Borrowing of,
conversion to or continuation of Eurodollar Rate Loans or, failing that,
will be
deemed to have converted such request into a request for a Borrowing of
Base
Rate Loans in the amount specified therein.
3.04 Increased
Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate
Loans.
(a) If
any
Lender determines that as a result of the introduction of or any change
in or in
the interpretation of any Law, or such Lender’s compliance therewith, there
shall be any increase in the cost to such Lender of agreeing to make or
making,
funding or maintaining Eurodollar Rate Loans or (as the case may be) issuing
or
participating in Letters of Credit, or a reduction in the amount received
or
receivable by such Lender in connection with any of the foregoing (excluding
for
purposes of this subsection (a) any such increased costs or reduction in
amount resulting from (i) Taxes or Other Taxes (as to which Section 3.01
shall
govern), (ii) changes in the basis of taxation of overall net income or
overall
gross income by the United States or any foreign jurisdiction or any political
subdivision of either thereof under the Laws of which such Lender is organized
or has its Lending Office, and (iii) reserve requirements contemplated
by
Section 3.04(c)),
then
from time to time upon demand of such Lender (with a copy of such demand
to the
Administrative Agent), the Borrowers shall pay to such Lender such additional
amounts as will compensate such Lender for such increased cost or
reduction.
(b) If
any
Lender determines that the introduction of any Law regarding capital adequacy
or
any change therein or in the interpretation thereof, or compliance by such
Lender (or its Lending Office) therewith, has the effect of reducing the
rate of
return on the capital of such Lender or any corporation controlling such
Lender
as a consequence of such Lender’s obligations hereunder (taking into
consideration its policies with respect to capital adequacy and such Lender’s
desired return on capital), then from time to time upon demand of such
Lender
(with a copy of such demand to the Administrative Agent), the Borrowers
shall
pay to such Lender such additional amounts as will compensate such Lender
for
such reduction.
(c) The
Borrowers shall pay to each Lender, as long as such Lender shall be required
to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid principal amount of each
Eurodollar Rate Loan equal to the actual costs of such reserves allocated
to
such Loan by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive), which shall be due and payable on each
date
on which interest is payable on such Loan, provided the Borrowers shall
have
received at least fifteen (15) days’ prior written notice (with a copy to the
Administrative Agent) of such additional interest from such Lender. If
a Lender
fails to give notice fifteen (15) days prior to the relevant Interest Payment
Date, such additional interest shall be due and payable fifteen (15) days
from
receipt of such notice.
3.05 Funding
Losses.
Upon
demand of any Lender (with a copy to the Administrative Agent) from time
to
time, the Borrowers shall promptly compensate such Lender for and hold
such
Lender harmless from any loss, cost or expense incurred by it as a result
of:
(a) any
continuation, conversion, payment or prepayment of any Loan other than
a Base
Rate Loan on a day other than the last day of the Interest Period for such
Loan
(whether voluntary, mandatory, automatic, by reason of acceleration, or
otherwise);
(b) any
failure by the Borrowers (for a reason other than the failure of such Lender
to
make a Loan) to prepay, borrow, continue or convert any Loan other than
a Base
Rate Loan on the date or in the amount notified by the Borrowers;
or
(c) any
assignment of a Eurodollar Rate Loan on a day other than the last day of
the
Interest Period therefor as a result of a request by the Borrowers pursuant
to
Section 10.16;
including
any loss of anticipated profits and any loss or expense arising from the
liquidation or reemployment of funds obtained by it to maintain such Loan
or
from fees payable to terminate the deposits from which such funds were
obtained.
The Borrowers shall also pay any customary administrative fees charged
by such
Lender in connection with the foregoing.
For
purposes of calculating amounts payable by the Borrowers to the Lenders
under
this Section 3.05,
each
Lender shall be deemed to have funded each Eurodollar Rate Loan made by
it at
the Eurodollar Base Rate used in determining the Eurodollar Rate for such
Loan
by a matching deposit or other borrowing in the London interbank eurodollar
market for a comparable amount and for a comparable period, whether or
not such
Eurodollar Rate Loan was in fact so funded.
3.06 Matters
Applicable to all Requests for Compensation.
(a) A
certificate of the Administrative Agent or any Lender claiming compensation
under this Article III and setting forth the additional amount or amounts
to be paid to it hereunder shall be conclusive in the absence of manifest
error.
In determining such amount, the Administrative Agent or such Lender may
use any
reasonable averaging and attribution methods.
(b) Upon
any
Lender’s making a claim for compensation under Section 3.01
or
3.04,
the
Borrowers may replace such Lender in accordance with Section 10.16.
3.07 Survival.
All
of
the Borrowers’ obligations under this Article III shall survive termination
of the Aggregate Revolving Commitments and repayment of all other Obligations
hereunder.
ARTICLE
IV
CONDITIONS
PRECEDENT TO EXTENSION OF CREDITS
The
obligation of each Lender to make Extensions of Credit hereunder is subject
to
satisfaction of the following conditions precedent:
4.01 Conditions
to Initial Extensions of Credit.
The
obligation of the Lenders to make the initial Extension of Credit hereunder
is
subject to the satisfaction of such of the following conditions in all
material
respects on or prior to the Closing Date as shall not have been expressly
waived
in writing by the Administrative Agent and Lenders.
(a) Credit
Documents, Organization Documents, Etc.
The
Administrative Agent’s receipt of the following, each of which shall be
originals or facsimiles (followed promptly by originals) unless otherwise
specified, each properly executed by a Responsible Officer of the signing
Credit
Party, each dated the Closing Date (or, in the case of certificates of
governmental officials, a recent date before the Closing Date) and each
in form
and substance satisfactory to the Administrative Agent and its legal
counsel:
(i) executed
counterparts of this Credit Agreement and the other Credit
Documents;
(ii) a
Note
executed by the Borrowers in favor of each Lender requesting a
Note;
(iii) copies
of
the Organization Documents of the Parent and each Borrower certified to
be true
and complete as of a recent date by the appropriate Governmental Authority
of
the state or other jurisdiction of its incorporation or organization,
where
applicable, and certified by a secretary or assistant secretary of Parent
and
Borrowers to be true and correct as of the Closing Date;
(iv) with
respect to the Subsidiary Guarantors, a certificate by
a
secretary or assistant secretary of such Subsidiary Guarantor that the
Organization Documents delivered to the Administrative Agent in connection
with
the 2004 Credit Agreement are still in full force and effect and have not
been
amended, restated, replaced or otherwise modified since the closing of
the 2004
Credit Agreement.
(v) such
certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Credit Party as the
Administrative Agent may require evidencing the identity, authority and
capacity
of each Responsible Officer thereof authorized to act as a Responsible
Officer
in connection with this Credit Agreement and the other Credit Documents
to which
such Credit Party is a party; and
(vi) such
documents and certifications as the Administrative Agent may reasonably
require
to evidence that the Parent and Borrowers are duly organized or formed,
and is
validly existing, in good standing and qualified to engage in business
in (A)
the jurisdiction of their incorporation or organization and (B) each
jurisdiction where their ownership, lease or operation of properties or
the
conduct of their business requires such qualification, except to the extent
that
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
(b) Opinions
of Counsel.
The
Administrative Agent shall have received, in each case dated as of the
Closing
Date and in form and substance reasonably satisfactory to the Administrative
Agent:
(i) a
legal
opinion of LeBoeuf, Lamb, Greene & MacRae, LLP, special New York counsel for
the Credit Parties;
(ii) a
legal
opinion of special local counsel for the Borrowers for the states of Maryland,
California, West Virginia, Ohio, North Carolina, Washington, Massachusetts,
Alabama, Tennessee, Idaho, Louisiana, Texas and any other state in which
any
Borrowing Base Asset in existence as of the Closing Date is located or
any other
state in which the Parent or any Borrower is organized, in each case addressed
to the Administrative Agent, its counsel and the Lenders.
(c) Personal
Property Collateral.
The
Administrative Agent shall have received (in each case in form and substance
reasonably satisfactory to the Administrative Agent):
(i) searches
of Uniform Commercial Code filings in the state of incorporation of each
Borrower or where a filing would need to be made in order to perfect the
Administrative Agent’s security interest in the tangible personal property
Collateral, copies of the financing statements on file in such jurisdictions
and
evidence that no Liens exist other than Permitted Liens;
(ii) UCC
financing statements for each appropriate jurisdiction as is necessary,
in the
Administrative Agent’s sole discretion, to perfect the Administrative Agent’s
security interest in the Collateral;
(iii) duly
executed notices of grant of security interest as are necessary, in the
Administrative Agent’s sole discretion, to perfect the Administrative Agent’s
security interest in the Collateral;
(iv) all
instruments and chattel paper in the possession of any of the Borrowers,
together with allonges or assignments as may be necessary or appropriate
to
perfect the Administrative Agent’s security interest in the
Collateral;
(v) duly
executed consents as are necessary, in the Administrative Agent’s sole
discretion, to perfect the Administrative Agent’s security interest in the
Collateral;
(vi) in
the
case of any tangible personal property Collateral located at a premises
leased
by a Borrower, such estoppel letters, consents and waivers from the landlords
on
such real property as may be required by the Administrative Agent.;
and
(vii) a
copy of
each Material Contract.
(d) Real
Property Collateral (Borrowing Base Assets).
The
Administrative Agent shall have received, in form and substance reasonably
satisfactory to the Administrative Agent, each of the Borrowing Base Asset
Deliverables with respect to each Real Property Asset set forth on Schedule 5.12
attached
hereto and shall have approved each such Real Property Asset as a Borrowing
Base
Asset hereunder.
(e) Property
and Liability Insurance.
The
Administrative Agent shall have received copies of all insurance policies
held
by (or for the benefit of) the Parent, Borrowers or Tenants with respect
to the
Real Property Assets of the Borrowers, each such policy shall name the
Administrative Agent (on behalf of the Lenders) as an additional insured
or sole
loss payee under a standard mortgagee endorsement, as applicable and each
provider of any such insurance shall agree, by endorsement upon the policy
or
policies issued by it or by independent instruments furnished to the
Administrative Agent, that it will give the Administrative Agent (i)
thirty (30) days prior written notice before any such policy or policies
shall be canceled and (ii) fifteen (15) days prior written notice before
any
such policy or policies shall be altered.
(f) Officer’s
Certificates.
The
Administrative Agent shall have received a certificate or certificates
executed
by a Responsible Officer of the Parent as of the Closing Date, in a form
satisfactory to the Administrative Agent, stating that (i) each Credit
Party is
in compliance with all existing financial obligations (whether pursuant
to the
terms and conditions of this Credit Agreement or otherwise), (ii) all
governmental, shareholder and third party consents and approvals, if any,
with
respect to the Credit Documents and the transactions contemplated thereby
have
been obtained, (iii) no action, suit, investigation or proceeding is pending
or
threatened in any court or before any arbitrator or governmental instrumentality
that purports to affect any Consolidated Party or any transaction contemplated
by the Credit Documents, if such action, suit, investigation or proceeding
could
have a Material Adverse Effect, (iv) immediately prior to and following
the
transactions contemplated herein, each of the Credit Parties shall be Solvent,
and (v) immediately after the execution of this Credit Agreement and the
other
Credit Documents, (A) no Default or Event of Default exists and (B) all
representations and warranties contained herein and in the other Credit
Documents are true and correct in all material respects.
(g) Financial
Statements.
Receipt
by the Administrative Agent and the Lenders of (i) pro forma projections
of
financial statements (balance sheet, income and cash flows) for each of
the
following four (4) fiscal years of the Consolidated Parties and (ii) such
other
information relating to the Consolidated Parties as the Administrative
Agent may
reasonably require in connection with the structuring and syndication of
credit
facilities of the type described herein.
(h) Opening
Compliance Certificate.
Receipt
by the Administrative Agent of a Compliance Certificate as of the Closing
Date
signed by a Responsible Officer of the Parent and including (i) pro forma
calculations for the current fiscal quarter based on the amounts set forth
in
the Audited Financial Statements and taking into account any Extension
of Credit
made or requested hereunder as of such date and (ii) pro forma calculations
of
all financial covenants contained herein for each of the following four (4)
fiscal quarters (based on the projections set forth in the materials delivered
pursuant to clause (g) of this Section 4.01).
(i) Consents/Approvals.
The
Credit Parties shall have received all approvals, consents and waivers,
and
shall have made or given all necessary filings and notices as shall be
required
to consummate the transactions contemplated hereby without the occurrence
of any
default under, conflict with or violation of (i) any applicable Law or
(ii) any
agreement, document or instrument to which any Credit Party is a party
or by
which any of them or their respective properties is bound, except for such
approvals, consents, waivers, filings and notices the receipt, making or
giving
of which would not reasonably be likely to (A) have a Material Adverse
Effect,
or (B) restrain or enjoin, impose materially burdensome conditions on,
or
otherwise materially and adversely affect the ability of any Borrower or
any
other Credit Party to fulfill its respective obligations under the Credit
Documents to which it is a party.
(j) Material
Adverse Change.
No
material adverse change shall have occurred since December 31, 2005 in the
condition (financial or otherwise), business, assets, operations, management
or
prospects of (i) the Parent, (ii) the Parent and its Consolidated Subsidiaries
taken as a whole, or (iii) the Borrowers taken as a whole.
(k) Litigation.
There
shall not exist any pending or threatened action, suit, investigation or
proceeding against any Credit Party or any of their Affiliates that could
reasonably be expected to have a Material Adverse Effect or could otherwise
materially and adversely effect the transactions set forth herein or
contemplated hereby.
(l) Assumption
of 2004 Credit Facility and 2004 Collateral Documents.
Receipt
by the Administrative Agent of satisfactory evidence that the 2004 Credit
Facility and the 2004 Collateral Documents have been assigned to the
Administrative Agent for the benefit of the Lenders and that all liens
in
connection therewith have been assigned to the Administrative Agent, including
without limitation the receipt of a fully executed 2004 Facility Assignment
Agreement.
(m) Fees
and Expenses.
Payment
by the Credit Parties to the Administrative Agent of all fees and expenses
relating to the preparation, execution and delivery of this Credit Agreement
and
the other Credit Documents which are due and payable on the Closing Date,
including, without limitation, payment to the Administrative Agent of the
fees
set forth in the Administrative Agent’s Fee Letter, and reasonable and
documented Attorney Costs, consultants’ fees, travel expenses and all fees and
expenses associated with the due diligence done in connection with and
the
preparation of documentation with respect to the Borrowing Base Assets
or other
Collateral.
(n) Other.
Receipt
by the Lenders or the Administrative Agent of such other documents, instruments,
agreements or information as reasonably requested by any Lender or the
Administrative Agent, including, but not limited to, additional legal opinions,
contribution agreements, corporate resolutions, indemnifications, information
regarding litigation, tax, accounting, labor, insurance, pension liabilities
(actual or contingent), real estate leases, material contracts, debt agreements,
property ownership and contingent liabilities of the Credit
Parties.
4.02 Conditions
to Extensions of Credit.
The
obligation of any Lender to make any Extension of Credit hereunder is subject
to
the satisfaction of such of the following conditions on or prior to the
proposed
date of the making of such Extension of Credit:
(a) The
Administrative Agent shall receive the applicable Request for Extension
of
Credit and the conditions set forth in Section
4.01
for the
initial Extension of Credit shall have been met as of the Closing
Date;
(b) No
Default shall have occurred and be continuing immediately before the making
of
such Extension of Credit and no Default shall exist immediately
thereafter;
(c) The
representations and warranties of the Borrowers made in or pursuant to
the
Credit Documents shall be true in all material respects on and as of the
date of
such Extension of Credit;
(d) Immediately
following the making of such Extension of Credit the sum of the outstanding
principal balance of the Revolving Obligations shall not exceed the lesser
of
(i) the Aggregate Revolving Committed Amount and (ii) the Borrowing Base
Amount
for such date.
The
making of such Extension of Credit hereunder shall be deemed to be a
representation and warranty by the Borrowers on the date thereof as to
the facts
specified in clauses (b), (c), and (d) of this Section.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES
The
Borrowers hereby represent and warrant (on behalf of themselves, the Parent
or
the Credit Parties as a whole, as applicable) that:
5.01 Financial
Statements; No Material Adverse Effect; No Internal Control
Event.
(a) The
Audited Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; (ii) fairly present the financial condition of
the
Consolidated Parties as of the date thereof and their results of operations
for
the period covered thereby in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein; and (iii) show all material indebtedness and other liabilities,
direct
or contingent, of the Consolidated Parties as of the date thereof, including
liabilities for taxes, material commitments and Indebtedness.
(b) During
the period from December 31, 2005, to and including the Closing Date, there
has
been no sale, transfer or other disposition by any Consolidated Party of
any
material part of the business or Property of the Consolidated Parties,
taken as
a whole, and no purchase or other acquisition by any of them of any business
or
property (including any Capital Stock of any other Person) material in
relation
to the consolidated financial condition of the Consolidated Parties, taken
as a
whole, in each case, which is not reflected in the foregoing financial
statements or in the notes thereto and has not otherwise been disclosed
in
writing to the Lenders on or prior to the Closing Date.
(c) The
financial statements delivered pursuant to Section 6.01(a)
and
(b)
have
been prepared in accordance with GAAP (except as may otherwise be permitted
under Section 6.01(a)
and
(b))
and
present fairly (on the basis disclosed in the footnotes to such financial
statements) the consolidated financial condition, results of operations
and cash
flows of the Consolidated Parties as of such date and for such
periods.
(d) Since
the
date of the Audited Financial Statements, there has been no event or
circumstance, either individually or in the aggregate, that has had or
could
reasonably be expected to have a Material Adverse Effect.
(e) Since
the
date of the Audited Financial Statements, no Internal Control Event has
occurred.
5.02 Corporate
Existence and Power.
Each
of
the Credit Parties is a corporation, partnership or limited liability company
duly organized or formed, validly existing and in good standing under the
laws
of its jurisdiction of incorporation or organization, has all organizational
powers and all material governmental licenses, authorizations, consents
and
approvals required to carry on its business as now conducted and is duly
qualified as a foreign entity and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the
conduct
of its business requires such qualification, other than in such jurisdictions
where the failure to be so qualified and in good standing would not, in
the
aggregate, have a Material Adverse Effect.
5.03 Corporate
and Governmental Authorization; No Contravention.
The
execution, delivery and performance by each Credit Party of each Credit
Document
to which such Person is party, have been duly authorized by all necessary
corporate or other organizational action, and do not and will not (a) contravene
the terms of any of such Person’s Organization Documents; (b) conflict with or
result in any breach or contravention of, or the creation of any Lien under,
(i)
any Contractual Obligation to which such Person is a party or (ii) any
order,
injunction, writ or decree of any Governmental Authority or any arbitral
award
to which such Person or its property is subject; or (c) violate any Law
(including Regulation U or Regulation X issued by the
FRB).
5.04 Binding
Effect.
This
Credit Agreement has been, and each other Credit Document, when delivered
hereunder, will have been, duly executed and delivered by each Credit Party
that
is a party thereto. This Credit Agreement constitutes, and each other Credit
Document when so delivered will constitute, a legal, valid and binding
obligation of such Credit Party, enforceable against each Credit Party
that is a
party thereto in accordance with its terms except as enforceability may
be
limited by applicable Debtor Relief Laws and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
5.05 Litigation.
There
are
no actions, suits, proceedings, claims or disputes pending or, to the knowledge
of the Responsible Officers of the Credit Parties, threatened at law, in
equity,
in arbitration or before any Governmental Authority, by or against any
Credit
Party or against any of its properties or revenues that (a) purport to
affect or
pertain to this Credit Agreement or any other Credit Document, or any of
the
transactions contemplated hereby or (b) either individually or in the aggregate,
can reasonably be expected to be determined adversely, and if so determined
to
have a Material Adverse Effect.
5.06 Compliance
with ERISA.
(a) Each
Plan
is in compliance in all material respects with the applicable provisions
of
ERISA, the Code and other Federal or state Laws. Each Plan that is intended
to
qualify under Section 401(a) of the Code has received a favorable
determination letter from the IRS or an application for such a letter is
currently being processed by the IRS with respect thereto and, to the knowledge
of the Responsible Officers of the Credit Parties, nothing has occurred
which
would prevent, or cause the loss of, such qualification. The Parent and
each
ERISA Affiliate have made all required contributions to each Plan subject
to
Section 412 of the Code, and no application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the Code
has been made with respect to any Plan.
(b) There
are
no pending or, to the knowledge of the Responsible Officers of the Credit
Parties, threatened claims (other than routine claims for benefits), actions
or
lawsuits, or action by any Governmental Authority, with respect to any
Plan that
could reasonably be expected to have a Material Adverse Effect. Neither
the
Parent nor any ERISA Affiliate or, to the knowledge of the Responsible
Officers
of the Credit Parties, any other Person has engaged in any prohibited
transaction or violation of the fiduciary responsibility rules under ERISA
or
the Code with respect to any Plan that has resulted or could reasonably
be
expected to result in a Material Adverse Effect.
(c) (i) No
ERISA
Event has occurred or is reasonably expected to occur; (ii) no Pension
Plan has
any Unfunded Pension Liability; (iii) the Parent nor any ERISA Affiliate
has
incurred, or reasonably expects to incur, any liability under Title IV of
ERISA with respect to any Pension Plan (other than premiums due and not
delinquent under Section 4007 of ERISA); (iv) the Parent nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability (and
no
event has occurred which, with the giving of notice under Section 4219 of
ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA
with respect to a Multiemployer Plan; and (v) the Parent nor any ERISA
Affiliate
has engaged in a transaction that could be subject to Sections 4069 or
4212(c) of ERISA.
5.07 Environmental
Matters.
Except
as
could not reasonably be expected to have a Material Adverse Effect:
(a) To
the
knowledge of the Responsible Officers of the Parent and the Borrowers,
each of
the Borrowing Base Assets and all operations with respect to each of the
Borrowing Base Assets and the Real Property Assets owned by the Borrowers
are in
compliance with all applicable Environmental Laws in all material respects
and
there are no conditions relating to the Borrowing Base Assets, the other
Real
Property Assets owned by the Borrowers or the Businesses of the Borrowers
that
are likely to give rise to liability under any applicable Environmental
Laws.
(b) To
the
knowledge of the Responsible Officers of the Parent and the Borrowers,
none of
the Borrowing Base Assets or other Real Property Assets owned by the Borrowers
contains, or has previously contained, any Hazardous Substances at, on
or under
such property in amounts or concentrations that constitute a violation
of, or
could give rise to liability under, applicable Environmental Laws.
(c) Neither
the Parent nor any Borrower has received any written or verbal notice of,
or
inquiry from any Governmental Authority regarding, any violation, alleged
violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard
to any
of the Borrowing Base Assets, any of the other Real Property Assets owned
by the
Borrowers or the Businesses of the Borrowers, nor does any Responsible
Officer
of the Parent or any Borrower have knowledge or reason to believe that
any such
notice will be received or is being threatened.
(d) Neither
the Parent nor any Borrower has generated, treated, stored or disposed
of
Hazardous Substances at, on or under any of the Borrowing Base Assets or
any of
the other Real Property Assets owned by the Borrowers in violation of,
or in a
manner that could give rise to liability under, any applicable Environmental
Law. To
the
knowledge of the Responsible Officers of the Parent and the Borrowers,
Hazardous
Substances
have
not
been transported or disposed of from the Borrowing
Base Assets or the other Real Property Assets owned by the Borrowers,
in each
case by or on behalf of any Borrower, in violation of, or in a manner that
is
likely to give rise to liability under, any applicable Environmental
Law.
(e) To
the
knowledge of the Responsible Officers of the Parent and the Borrowers,
no
judicial proceeding or governmental or administrative action is pending
or
threatened, under any Environmental Law to which any Borrower is or will
be
named as a party, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative
or
judicial requirements outstanding under any Environmental Law with respect
to
the Borrowers, the Borrowing Base Assets, the other Real Property Assets
owned
by the Borrowers or the Businesses of the Borrowers.
5.08 Margin
Regulations; Investment Company Act.
(a) No
Credit
Party is engaged or will engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within
the
meaning of Regulation U issued by the FRB), or extending credit for the
purpose of purchasing or carrying margin stock and no part of the Letters
of
Credit or proceeds of the Loans will be used, directly or indirectly, for
the
purpose of purchasing or carrying any margin stock.
(b) None
of
the Parent or any Borrower (i) is or is required to be registered as an
“investment company” under the Investment Company Act of 1940 or (ii) subject to
regulation under any other Law which limits its ability to incur the
Obligations.
5.09 Compliance
with Laws.
(a) Each
Credit Party is in compliance in all material respects with the requirements
of
all Laws and all orders, writs, injunctions and decrees applicable to it
or to
its properties, except in such instances in which (a) such requirement
of Law or
order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply
therewith, either individually or in the aggregate, could not reasonably
be
expected to have a Material Adverse Effect.
(b) To
the
knowledge of the Responsible Officers of the Borrowers, each of the Borrowing
Base Assets, and the uses of the Borrowing Base Assets, are in compliance
in all
material respects with the requirements of all Laws and all orders, writs,
injunctions and decrees applicable to the Borrowing Base Assets (including,
without limitation, building and zoning laws and Healthcare Laws), except
in
such instances in which (i) such requirement of Law or order, writ, injunction
or decree is being contested in good faith by appropriate proceedings diligently
conducted or (ii) the failure to comply therewith, either individually
or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect.
5.10 Ownership
of Property; Liens.
Each
Borrower has good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary
conduct of its business (including, in any case, each of the Borrowing
Base
Assets), except for such defects in title as could not, individually or
in the
aggregate, reasonably be expected to have a Material Adverse Effect. The
property of the Borrowers is subject to no Liens, other than Permitted
Liens.
5.11 Corporate
Structure; Capital Stock, Etc.
As
of the
Closing Date and as of each date on which such schedule is subsequently
updated
pursuant to the terms hereof through the delivery of a Compliance Certificate,
Schedule 5.11
correctly sets forth the corporate structure of Parent and each of its
Subsidiaries (including each of the Subsidiary Guarantors), as well as
the
entity and ownership structure of the Parent and the Borrowers and the
correct
legal name and the jurisdiction of formation of the Parent and each of
its
Subsidiaries. Also included on Schedule
5.11
is a
listing of the number of shares of each class of Capital Stock outstanding
with
respect to each Borrower, the Persons holding equity interests in such
Borrowers, their percentage equity or voting interest in the Borrowers
and the
number and effect, if exercised, of all outstanding options, warrants,
rights of
conversion or purchase and all other similar rights with respect thereto.
Except
as set forth on Schedule
5.11,
as of
the Closing Date: (i) no Borrower has issued to any third party any securities
convertible into any equity interest in such Borrower, or any options,
warrants
or other rights to acquire any securities convertible into any such equity
interest, and (ii) the outstanding Capital Stock of each Borrower is owned
by
the Persons indicated on Schedule 5.11,
is
validly issued, fully paid and non-assessable, and is free and clear of
all
Liens, warrants, options and rights of others of any kind whatsoever. Each
Person owning a Borrowing Base Property is a Borrower hereunder. Each Borrower
is a Wholly Owned Subsidiary of the Parent. No Borrower holds or otherwise
has
any interest in any Capital Stock of any other Person. Each Subsidiary
of the
Parent is either a Borrower, a Subsidiary Guarantor or an Unrestricted
Subsidiary.
5.12 Real
Property Assets; Leases.
(a) Part I
of Schedule 5.12
(as
updated pursuant to the terms hereof through the delivery of a Compliance
Certificate) is a true and complete list as of the Closing Date of (i)
the
street address of each Borrowing Base Asset, (ii) the Borrower which owns
each
such Borrowing Base Asset, (iii) the facility type of each such Borrowing
Base
Asset, (iv) the Facility Leases to which each such Borrowing Base Asset
is
subject, and (v) the name and address of the applicable Tenant. The applicable
Borrower has a fee simple title to or holds a ground lease interest pursuant
to
an Eligible Ground Lease in each Borrowing Base Asset listed on
Schedule 5.12 hereto and such schedule correctly sets forth the type of
interest (fee or leasehold) held by each Borrower in each Borrowing Base
Asset.
Each parcel of real property identified on Part I of Schedule 5.12 is
a Real Property Asset that qualifies as a Borrowing Base Asset pursuant
to the
terms hereof and which is subject to a first priority lien (subject to
Permitted
Liens) in favor of the Administrative Agent (for the benefit of the Lenders)
pursuant to a properly-recorded Mortgage Instrument and Assignment of
Leases.
(b) Part II
of Schedule 5.12
(as
updated pursuant to the terms hereof through the delivery of a Compliance
Certificate) is a true and complete list as of the Closing Date of (i)
the
street address of each other Real Property Asset owned by any Borrower,
(ii) the
applicable Borrower which owns each such other Real Property Asset, (iii)
the
facility type of each such other Real Property Asset, (iv) the lease(s)
to which
each such other Real Property Asset is subject, and (v) the name and address
of
the Tenants with respect to each such other Real Property Asset.
(c) Part III
of Schedule 5.12
(as
updated pursuant to the terms hereof through the delivery of a Compliance
Certificate) properly sets forth the names and addresses of all Tenants
with
respect to the Real Property Assets who are, to the knowledge of any Responsible
Officer of the Borrowers, (i) delinquent in paying any franchise, business,
intangible, personal property taxes or real estate taxes due beyond the
later of
the applicable grace period with respect thereto, if any, and forty five
(45)
days and/or (ii) the subject of any Bankruptcy Event.
(d) Part IV
of Schedule 5.12
(as
updated pursuant to the terms hereof through the delivery of a Compliance
Certificate) properly identifies all Facility Leases in existence as of
the date
hereof with respect to the Borrowing Base Assets, together with the applicable
Tenant and the remaining term of each such Facility Lease.
(e) Part V
of Schedule 5.12
(as
updated pursuant to the terms hereof through the delivery of a Compliance
Certificate) properly sets forth all subleases with respect to the Facility
Leases relating to any of the Borrowing Base Assets, the termination of
which
could result in a material adverse effect on the applicable Tenant’s ability to
continue to make scheduled payments to the applicable Borrower under the
applicable Facility Lease, together with the applicable tenant with respect
thereto, the remaining term of the sublease and whether or not such tenant
is
current on payments due thereunder.
(f) To
the
knowledge of the Responsible Officers of the Borrowers, each of the facilities
located on the Borrowing Base Assets owned by the Borrowers is currently
in good
repair, working order and condition without any material structural or
engineering defects or conditions. To the knowledge of the Responsible
Officers
of the Borrowers, no condemnation or condemnation proceeding has been instituted
and remained undismissed for a period in excess of thirty (30) consecutive
days, in each case, with respect to a material portion of any Real Property
Asset listed as a Borrowing Base Asset on Part I of Schedule
5.12.
To the
knowledge of the Responsible Officers of the Borrowers, no material casualty
event has occurred with respect to the improvements located on any Real
Property
Asset listed as a Borrowing Base Asset on Part I of Schedule
5.12
which
has not been (or, if applicable) will not be able to be) fully remediated
with
available insurance proceeds.
5.13 Material
Contracts; Additional Contractual Obligations.
Schedule 5.13
(as
updated pursuant to the terms hereof through the delivery of a Compliance
Certificate) is a true, correct and complete listing of all Material Contracts
as of the Closing Date (other than those set forth on Part V of Schedule
5.12).
No
event of default, or event or condition which with the giving of notice,
the
lapse of time, a determination of materiality, the satisfaction of any
other
condition or any combination of the foregoing, would constitute such an
event of
default, exists with respect to any such Material Contract. Except
as
set forth on Schedule
5.13,
no
Borrower is a party to any contract or agreement that is subject to the
Federal
Assignment of Claims Act, as amended (31 U.S.C. Section 3727) or any
similar state or local law.
5.14 Investments.
All
Investments of each Borrower are Investments permitted pursuant to Section
7.04(b).
5.15 Solvency.
The
Credit Parties are Solvent on a consolidated basis.
5.16 Taxes.
The
Credit Parties have filed all Federal, state and other material tax returns
and
reports required to be filed, and have paid all Federal, state and other
material taxes, assessments, fees and other governmental charges levied
or
imposed upon them or their properties (including all Real Property Assets),
income or assets otherwise due and payable, except those which are being
contested in good faith by appropriate proceedings diligently conducted
and for
which adequate reserves have been established in accordance with GAAP.
To the
knowledge of the Responsible Officers of the Parent and the Borrowers,
there is
no proposed tax assessment against any Credit Party that would, if made,
have a
Material Adverse Effect.
5.17 REIT
Status.
The
Parent is taxed as a “real estate investment trust” within the meaning of
Section 856(a) of the Code and each of the Borrowers are Qualified REIT
Subsidiaries.
5.18 Insurance.
All
insurance coverage of the Borrowers and all insurance coverage of the Tenants
with respect to the Real Property Assets of the Borrowers, in each case,
as in
existence as of the Closing Date and as of each date on which such schedule
is
subsequently updated pursuant to the terms hereof through the delivery
of a
Compliance Certificate, is described on the certificates attached hereto
as
Schedule 5.18.
5.19 Healthcare;
Facility Representations and Warranties.
(a) Compliance
With Healthcare Laws.
Without
limiting the generality of Section 5.09
hereof
or any other representation or warranty made herein, neither the Parent
nor any
of the Borrowers and, to the knowledge of the Responsible Officers of the
Parent
and the Borrowers, no Tenant, is in material violation of any applicable
statutes, laws, ordinances, rules and regulations of any Governmental Authority
with respect to regulatory matters primarily relating to patient healthcare
(including without limitation Section 1128B(b) of the Social Security Act,
as amended, 42 U.S.C. Section 1320a-7(b) (Criminal Penalties Involving
Medicare or State Health Care Programs), commonly referred to as the “Federal
Anti-Kickback Statute,” and the Social Security Act, as amended,
Section 1877, 42 U.S.C. Section 1395nn (Prohibition Against Certain
Referrals), commonly referred to as “Stark Statute” (collectively, “Healthcare
Laws”)
where
such violation would result in a Material Adverse Effect. The Parent and
each of
the Borrowers (if applicable) and, to the knowledge of the Responsible
Officers
of the Parent and the Borrowers, each of the Tenants, have maintained in
all
material respects all records required to be maintained by the Joint Commission
on Accreditation of Healthcare Organizations, the Food and Drug Administration,
Drug Enforcement Agency and State Boards of Pharmacy and the federal and
state
Medicare and Medicaid programs as required by the Healthcare Laws and,
to the
knowledge of the Responsible Officers of the Parent and the Borrowers,
there are
no notices of material violations of the Healthcare Laws with respect to
the
Parent, the Borrowers, any Tenant or any of the Real Property Assets owned
by
any Borrower.
(b) Licenses,
Permits, and Certifications.
(i) To
the
knowledge of the Responsible Officers of the Parent and the Borrowers,
each
Tenant has such permits, licenses, franchises, certificates and other approvals
or authorizations of Governmental Authorities as are necessary under applicable
law or regulations to own its properties and to conduct its business and
to
receive reimbursement under Medicare and Medicaid (including without limitation
such permits as are required under such federal, state and other health
care
laws, and under such HMO or similar licensure laws and such insurance laws
and
regulations, as are applicable thereto), if the failure to obtain such
permits,
licenses, franchises, certificates and other approvals or authorizations
could
reasonably be expected to result in a Material Adverse Effect. Notwithstanding
the foregoing, no Borrower is the owner of any licenses or permits required
for
the provision of Medical Services at any of the Real Property Assets.
(ii) To
the
knowledge of the Responsible Officers of the Parent and the Borrowers,
each
Tenant has all Medicare, Medicaid and related agency supplier billing number(s)
and related documentation necessary to submit reimbursement claims to Medicare
and/or Medicaid for any Medical Service furnished by such Person in any
jurisdiction where it conducts business if the failure to obtain billing
number(s) or related documentation could reasonably be expected to result
in a
Material Adverse Effect. To the knowledge of the Responsible Officers of
the
Parent and the Borrowers, no Tenant is currently subject to suspension,
revocation, renewal or denial of its Medicare and/or Medicaid certification,
supplier billing number(s), or Medicare and/or Medicaid participation
agreement(s).
(iii) To
the
knowledge of the Responsible Officers of the Parent and the Borrowers,
each of
the facilities located on the Real Property Assets owned by the Borrowers
are
currently accredited by the Joint Commission on Accreditation of Healthcare
Organizations (“JCAHO”)
or any
other required Governmental Authority and is duly licensed to operate in
the
manner currently operated, as required under applicable Laws. In addition,
to
the knowledge of the Responsible Officers of the Parent and the Borrowers,
each
such facility is in compliance in all material respects with the applicable
provisions of every law, ordinance, statute, regulation, order, standard,
restriction or rule of any federal, state or local government or
quasi-governmental body, agency, board or authority having jurisdiction
over the
operation thereof, including, without limitation, health care and fire
safety
codes.
(c) HIPAA
Compliance.
Neither
the Parent nor any Borrower is a “covered entity” within the meaning of
HIPAA.
In
addition, to the knowledge of the Responsible Officers of the Parent and
the
Borrowers, neither the Parent nor any Borrower is the subject of any civil
or
criminal penalty, process, claim, action or proceeding, or any administrative
or
other regulatory review, survey, process or proceeding (other than routine
surveys or reviews conducted by any government health plan or other
accreditation entity) that could reasonably be expected to cause a Material
Adverse Effect.
(d) Medical
Services.
No
Credit Party is in the business of providing Medical Services.
5.20 Disclosure.
Each
Credit Party has disclosed to the Administrative Agent and 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. To each Credit Party’s knowledge, no report, financial
statement, certificate or other information furnished (whether in writing
or
orally) by or on behalf of any Credit Party to the Administrative Agent
or any
Lender in connection with the transactions contemplated hereby and the
negotiation of this Agreement or delivered hereunder or under any other
Credit
Document (in each case, 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; provided that,
with
respect to projected financial information, each Credit Party represents
only
that, to each Credit Party’s knowledge, such information was prepared in good
faith based upon assumptions believed to be reasonable at the time, with
the
understanding that certain of such information is prepared or provided
by each
Credit Party based upon information and assumptions provided to such Credit
Parties by tenants of such Credit Parties.
ARTICLE
VI
AFFIRMATIVE
COVENANTS
The
Borrowers hereby covenant and agree (on their own behalf and on behalf
of the
Subsidiary Guarantors and/or Parent, as applicable) that until the Obligations,
together with interest, fees and other obligations hereunder, have been
paid in
full and the Revolving Commitments hereunder shall have terminated:
6.01 Financial
Statements.
The
Borrowers shall deliver to the Administrative Agent (and the Administrative
Agent shall disseminate such information pursuant to the terms of Section 6.02
hereof),
in form and detail reasonably satisfactory to the Administrative Agent
and the
Required Lenders:
(a) as
soon
as available, but in any event within one hundred fifteen (115) days after
the
end of each fiscal year of the Parent (or if earlier, the date that is
fifteen
(15) days after the reporting date for such information required by the
SEC), a
consolidated balance sheet of the Consolidated Parties as at the end of
such
fiscal year, and the related consolidated statements of earnings, shareholders’
equity and cash flows for such fiscal year, setting forth in each case
in
comparative form the figures for the previous fiscal year, all in reasonable
detail and prepared in accordance with GAAP, audited and accompanied by
(i) a
report and opinion of a Registered Public Accounting Firm of nationally
recognized standing reasonably acceptable to the Required Lenders, which
report
and opinion shall be prepared in accordance with generally accepted auditing
standards and applicable Securities Laws and shall not be subject to any
“going
concern” or like qualification or exception or any qualification or exception as
to the scope of such audit and (ii) an attestation report of such Registered
Public Accounting Firm as to the Borrower’s internal controls pursuant to
Section 404 of Sarbanes-Oxley expressing a conclusion that the Parent has
maintained effective internal controls over financial reporting based on
COSO
criteria; provided, that the Administrative Agent hereby agrees that a
Form 10-K
of the Parent in form similar to that delivered as part of the Audited
Financial
Statements shall satisfy the requirements of this Section
6.01(a);
and
(b) as
soon
as available, but in any event within sixty (60) days after the end of
each of
the first three (3) fiscal quarters of each fiscal year of the Parent (or
if
earlier, the date that is fifteen (15) days after the reporting date for
such
information required by the SEC), a consolidated balance sheet of the
Consolidated Parties as at the end of such fiscal quarter, and the related
consolidated statements of earnings, shareholders’ equity and cash flows for
such fiscal quarter and for the portion of the Parent’s fiscal year then ended,
setting forth in each case in comparative form the figures for the corresponding
fiscal quarter of the previous fiscal year and the corresponding portion
of the
previous fiscal year, all in reasonable detail and certified by a Responsible
Officer of the Parent as fairly presenting the financial condition, results
of
operations, shareholders’ equity and cash flows of the Consolidated Parties in
accordance with GAAP, subject only to normal year-end audit adjustments
and the
absence of footnotes; provided, that the Administrative Agent hereby agrees
that
a Form 10-Q of the Parent in form similar to that delivered to the SEC
shall
satisfy the requirements of this Section
6.01(b).
6.02 Certificates;
Other Information.
The
Borrowers shall deliver to the Administrative Agent (and the Administrative
Agent shall disseminate such information pursuant to the terms of this
Section 6.02),
in
form and detail reasonably satisfactory to the Administrative Agent and
the
Required Lenders:
(a) concurrently
with the delivery of the financial statements referred to in Sections 6.01(a)
and
(b),
a duly
completed Compliance Certificate signed by a Responsible Officer of the
Parent;
(b) within
fifty (50) days after the end of each fiscal quarter, a Borrowing Base
Certificate calculated as of the end of the immediately prior fiscal quarter,
duly completed and executed by a Responsible Officer of the Parent; provided,
however, the Borrower Representative may, at its option, provide an updated
Borrowing Base Certificate more frequently than quarterly;
(c) within
forty five (45) days following the date on which such statements and
calculations are due to the respective Borrowers from the respective Tenants,
quarterly operating statements and Occupancy Rate calculations concerning
each
of the then-existing Borrowing Base Assets;
(d) within
thirty (30) days after the end of each fiscal year of the Parent, beginning
with
the fiscal year ending December 31, 2006, an annual operating forecast of
the Parent containing, among other things, pro forma financial statements
for
the then current fiscal year and updated versions of the pro forma financial
projections delivered in connection with Section 4.01(g)
hereof;
(e) promptly
after any request by the Administrative Agent, copies of any detailed audit
reports, management letters or recommendations submitted to the board of
directors by the independent accountants of the Parent (or the audit committee
of the board of directors of the Parent) in respect of the Parent (and,
to the
extent any such reports, letters or recommendations are prepared separately
for
any one or more of the Borrowers, such Borrower(s)) by independent accountants
in connection with the accounts or books of the Parent (or such Borrower(s))
or
any audit of the Parent (or such Borrower(s));
(f) promptly
after the same are available, (i) copies of each annual report, proxy or
financial statement or other report or communication sent to the stockholders
of
the Parent, and copies of all annual, regular, periodic and special reports
and
registration statements which the Parent may file or be required to file
with
the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934 or
to a holder of any Indebtedness owed by the Parent in its capacity as such
holder and not otherwise required to be delivered to the Administrative
Agent
pursuant hereto and (ii) upon the request of the Administrative Agent,
all
reports and written information to and from the United States Environmental
Protection Agency, or any state or local agency responsible for environmental
matters, the United States Occupational Health and Safety Administration,
or any
state or local agency responsible for health and safety matters, or any
successor agencies or authorities concerning environmental, health or safety
matters;
(g) promptly
upon receipt thereof, a copy of any other report or “management letter”
submitted by independent accountants to the Parent or any Borrower in connection
with any annual, interim or special audit of the books of the Parent (or
any
such Borrower(s));
(h) promptly
upon any Responsible Officer of the Parent or the Borrowers becoming aware
thereof, notice of (i) the existence of any contemplated offering, placement
or
arrangement which will constitute an Event of Default under the terms of
Section 8.01(l),
(ii)
any matter that has resulted or could reasonably be expected to result
in a
Material Adverse Effect, (iii) the occurrence of any Internal Control Event
and
(iv) any other Default or Event of Default; and
(i) promptly,
such additional information regarding the business, financial or corporate
affairs of the Borrowers, or compliance with the terms of the Credit Documents,
as the Administrative Agent or any Lender (through the Administrative Agent)
may
from time to time reasonably request.
Documents
required to be delivered pursuant to Section 6.01(a)
or
(b)
or
Section 6.02(b),
(c),
(d),
or
(e)
may be
delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Parent or the Borrowers post such
documents, or provides a link thereto on the Parent’s website on the Internet at
the website address listed on Schedule 10.02;
or (ii)
on which such documents are posted by the Administrative Agent (on the
Borrowers’ behalf) on IntraLinks/IntraAgency or another relevant website, if
any, to which each Lender and the Administrative Agent have access (whether
a
commercial, third-party website or whether sponsored by the Administrative
Agent); provided that: (A) the Borrowers shall deliver paper copies of
such
documents to the Administrative Agent or any Lender (through the Administrative
Agent) that requests the Borrowers to deliver such paper copies until a
written
request to cease delivering paper copies is given by the Administrative
Agent or
such Lender (through the Administrative Agent) and (B) the Borrowers shall
notify (which may be by facsimile or electronic mail) the Administrative
Agent
and each Lender (through the Administrative Agent) of the posting of any
such
documents (each Lender to which delivery of such documents shall be made
by
posting to any such website shall have been given access to such website
on or
prior to the date of such posting) and provide to the Administrative Agent
by
electronic mail electronic versions (i.e., soft copies) of such documents.
Notwithstanding anything contained herein, in every instance the Parent
shall be
required to provide paper copies of the Compliance Certificates required
by
Section 6.02(a)
to the
Administrative Agent and each of the Lenders (through the Administrative
Agent).
Except for such Compliance Certificates, the Administrative Agent shall
have no
obligation to request the delivery or to maintain copies of the documents
referred to above, and in any event shall have no responsibility to monitor
compliance by the Parent or the Borrowers with any such request for delivery,
and each Lender shall be solely responsible for requesting delivery to
it or
maintaining its copies of such documents.
The
Borrowers (and the Borrower Representative) hereby acknowledge that (x)
the
Administrative Agent will make available to the Lenders materials and/or
information provided by or on behalf of the Borrowers hereunder (collectively,
the “Borrower
Materials”)
by
posting the Borrower Materials on IntraLinks or another similar electronic
system (the “Platform”)
and
(y) certain of the Lenders may be “public-side” Lenders (i.e.,
Lenders
that do not wish to receive material non-public information with respect
to the
Borrowers or their securities) (each, a “Public
Lender”).
The
Borrowers (and the Borrower Representative) hereby further agree that (ww)
all
Borrower Materials that are to be made available to Public Lenders shall
be
clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that
the word “PUBLIC” shall appear prominently on the first page thereof (xx) by
marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have
authorized the Administrative Agent and the Lenders to treat such Borrower
Materials as either publicly available information or not material information
(although it may be sensitive and proprietary) with respect to the Borrowers
or
their securities for purposes of United States federal and state securities
laws
(provided,
however,
that to
the extent such Borrower Materials constitute Confidential Information,
they
shall be treated as set forth in Section 10.08);
(yy)
all Borrower Materials marked “PUBLIC” are permitted to be made available
through a portion of the Platform designated as “Public;” and (zz) the
Administrative Agent shall be entitled to treat any Borrower Materials
that are
not marked “PUBLIC” as being suitable only for posting on a portion of the
Platform not marked as “Public.”
6.03 Preservation
of Existence and Franchises.
Each
Credit Party will do all things necessary to preserve and keep in full
force and
effect its existence, rights, franchises and authority. Each Credit Party
shall
remain qualified and in good standing in each jurisdiction in which the
failure
to so qualify and be in good standing could have a Material Adverse
Effect.
6.04 Books
and Records.
Each
Credit Party will keep complete and accurate books and records of its
transactions in accordance with good accounting practices on the basis
of
GAAP.
6.05 Compliance
with Law.
Each
Credit Party will comply with all Laws, rules, regulations and orders,
and all
applicable restrictions imposed by all Governmental Authorities (including,
without limitation, building and zoning laws and all Healthcare Laws),
applicable to it and all of its real and personal property (including,
without
limitation, each Real Property Asset owned by any Borrower) if noncompliance
with any such law, rule, regulation, order or restriction could have a
Material
Adverse Effect. Each Borrower will comply with all terms and conditions
of all
Material Contracts to which it is a party to the extent that that such
non-compliance could have a Material Adverse Effect.
6.06 Payment
of Taxes and Other Indebtedness.
Each
Credit Party will pay and discharge (or cause to be paid or discharged)
(a) all
taxes (including, without limitation, any corporate or franchise taxes),
assessments and governmental charges or levies imposed upon it, or upon
its
income or profits, or upon any of its properties (including, without limitation,
each Real Property Asset owned by any Borrower), before they shall become
delinquent, (b) all lawful claims (including claims for labor, materials
and
supplies) which, if unpaid, might give rise to a Lien (other than a Permitted
Lien) upon any of its properties, and (c) except as prohibited hereunder,
all of
its other Indebtedness as it shall become due; provided, however, that
no Credit
Party shall be required to pay any such tax, assessment, charge, levy,
claim or
Indebtedness which is being contested in good faith by appropriate proceedings
and as to which adequate reserves therefor have been established in accordance
with GAAP, unless the failure to make any such payment (i) could give rise
to an
immediate right to foreclose on a Lien securing such amounts in respect
of any
Real Property Assets owned by the Borrower or (ii) could have a Material
Adverse
Effect.
6.07 Insurance.
In
addition to the requirements of any of the other Credit Documents, the
Parent
and the Borrowers shall maintain, or with respect to any Borrowing Base
Asset
leased by a Borrower to an Eligible Tenant, cause the applicable Eligible
Tenant, to maintain, insurance policies and coverages indicated on the
certificates attached hereto as Schedule
5.18,
subject
to changes in policies and coverages based on the availability of insurance
for
Persons engaged in similar types of properties in the applicable location,
in
each case as approved by the Administrative Agent in its reasonable discretion.
The Borrowers will deliver to the Administrative Agent (a) within ten (10)
days
of receipt of notice from any insurer a copy of any notice of cancellation
or
material change in coverage from that existing on the date hereof and (b)
promptly upon receipt, notice of any cancellation or nonrenewal of coverage
by
the Parent or any Borrower thereof. The Administrative Agent shall be named
as
loss payee or mortgagee, as its interest may appear, and/or additional
insured
with respect to any insurance procured with respect to the Borrowing Base
Assets
and each provider of any such insurance shall agree, by endorsement upon
the
policy or policies issued by it or by independent instruments furnished
to the
Administrative Agent, that it will give the Administrative Agent (i)
thirty (30) days prior written notice before any such policy or policies
shall be canceled and (ii) fifteen (15) days prior written notice before
any
policy or policies shall be altered.
6.08 Maintenance
of Property.
In
addition to the requirements of any of the other Credit Documents, the
Borrowers
shall (a) protect and preserve, or cause to be protected and preserved
all
Borrowing Base Assets and maintain, or cause to be maintained, in good
repair,
working order and condition all Borrowing Base Assets, ordinary wear and
tear
excepted, and (b) from time to time make, or cause to be made, all needed
and
appropriate repairs, renewals, replacements and additions to such Borrowing
Base
Assets, so that the business carried on in connection therewith may be
properly
and advantageously conducted at all times. No Borrower owns any material
intellectual property.
6.09 Performance
of Obligations.
The
Credit Parties will pay and discharge at or before maturity, or prior to
expiration of applicable notice, grace and curative periods, all their
respective material obligations and liabilities, including, without limitation,
tax liabilities, except where the same may be contested in good faith by
appropriate proceedings, and will maintain, in accordance with GAAP, appropriate
reserves for the accrual of any of the same.
6.10 Visits
and Inspections.
The
Borrowers (subject to applicable Facility Leases), shall permit representatives
or agents of any Lender or the Administrative Agent, from time to time,
and, if
no Event of Default shall have occurred and be continuing, after reasonable
prior notice, but not more than twice annually and only during normal business
hours to: (a) visit and inspect all Borrowing Base Assets to the extent
any such
right to visit or inspect is within the control of such Person; (b) inspect
and
make extracts from their respective books and records, including but not
limited
to management letters prepared by independent accountants; and (c) discuss
with
its principal officers, and its independent accountants, its business,
properties, condition (financial or otherwise), results of operations and
performance. If requested by the Administrative Agent, the Parent or the
Borrowers, as applicable, shall execute an authorization letter addressed
to its
accountants authorizing the Administrative Agent or any Lender to discuss
the
financial affairs of the Parent or any Borrower with its
accountants.
6.11 Use
of Proceeds/Purpose of Loans and Letters of Credit.
The
Borrowers shall use the proceeds of all Loans and use Letters of Credit
only for
the purpose of (i) on the Closing Date to refinance existing Indebtedness
of the
Borrowers under the 2004 Credit Facility and (ii) on and after the Closing
Date
to finance general corporate working capital (including asset acquisitions)
or
other corporate purposes of the Borrowers and the other Credit Parties
(to the
extent not inconsistent with the Credit Parties’ covenants and obligations under
this Credit Agreement and the other Credit Documents).
6.12 Financial
Covenants.
(a) Consolidated
Leverage Ratio.
The
Borrowers shall cause the Consolidated Leverage Ratio, as of any date of
calculation, to be equal to or less than 5.25 to 1.00; provided
however,
notwithstanding the foregoing, following any Acquisition or series of
Acquisitions by the Parent or any Subsidiary of the Parent (other than
a
Borrower, except to the extent permitted by Section 7.04(b) hereunder),
and
following the delivery of an Acquisition Leverage Ratio Notice (as defined
below), the Borrowers shall have the ability to increase the applicable
Consolidated Leverage Ratio to a level equal to or less than 5.50 to 1.00
(the
“Acquisition
Leverage Ratio”)
with
respect to the next two (2) fiscal quarter periods immediately following
such
Acquisition or series of Acquisitions; provided,
further,
however,
the
Acquisition Leverage Ratio (i) may not be invoked by the Borrowers more
than two
(2) times during the term of this Agreement (i.e., an aggregate of four
(4)
fiscal quarters) and (ii) shall not be applicable to more than two (2)
fiscal
quarters during any three (3) consecutive fiscal quarter period. For purposes
of
this Section
6.12(a),
the
term “Acquisition
Leverage Ratio Notice”
shall
mean a written notice from Borrowers to the Administrative Agent (i) delivered
not later than the last day of the initial fiscal quarter in which the
Borrowers’ seek to invoke the Acquisition Leverage Ratio and (ii) which
describes the Acquisition or series of Acquisitions which formed the basis
for
such request (including without limitation, a pro forma calculation of
the
Consolidated Leverage Ratio immediately prior to and after giving effect
to such
Acquisition or series of Acquisitions) and otherwise in form and substance
reasonably satisfactory to the Administrative Agent.
(b) Consolidated
Fixed Charge Coverage Ratio.
The
Borrowers shall cause the Consolidated Fixed Charge Coverage Ratio, as
of any
date of calculation, to be equal to or greater than 1.75 to 1.00.
(c) Consolidated
Tangible Net Worth.
The
Borrowers shall cause the Consolidated Tangible Net Worth as of the end
of any
fiscal quarter to be equal to or greater than the sum of (i) $500,000,000
plus
(ii) an
amount equal to 100% of the net cash proceeds received by the Consolidated
Parties from Equity Transactions during the period commencing as of the
Closing
Date and ending as of the last day of the fiscal quarter for which such
calculation is being performed.
(d) Distribution
Limitation.
The
Borrowers shall cause the cash distributions to the Parent’s shareholders made
or declared by the Parent, for the period from December 31, 2005 and ending
as
of the most recently completed fiscal quarter, to be equal to or less than
ninety-five percent (95%) (or such greater amount as is required for the
Parent
to maintain REIT status) of the aggregate cumulative Funds From Operations
accrued during such period. Notwithstanding anything to the contrary contained
in this Section
6.12(d),
the
Parent may (i) distribute to the Parent’s shareholders any and all cash proceeds
received by the Parent in connection with any issuance or sale of shares
of its
Capital Stock and (ii) make unlimited distributions to the Parent’s shareholders
payable solely in the form of common stock of the Parent).
6.13 Environmental
Matters.
(a) Each
of
the Parent and the Borrowers shall comply with all Environmental Laws in
respect
of the Borrowing Base Assets. The Parent and the Borrowers shall promptly
take
all actions necessary to prevent the imposition of any Liens on any of
the
Borrowing Base Assets arising out of or related to any Environmental Laws.
(b) In
respect of any Borrowing Base Asset, if any of the Parent or any Borrower
shall
(a) receive notice that any violation of any Environmental Law may have
been
committed or is about to be committed by such Person, (b) receive notice
that
any administrative or judicial complaint or order has been filed or is
about to
be filed against the Parent or any Borrower alleging violations of any
Environmental Law or requiring any such Person to take any action in connection
with the release of any Hazardous Substance or (c) receive any notice from
a
Governmental Authority or private party alleging that any such Person may
be
liable or responsible for costs associated with a response to or cleanup
of a
release of a Hazardous Substance or any damages caused thereby, the Parent
or
the applicable Borrower shall provide the Administrative Agent with a copy
of
such notice within ten (10) days after the receipt thereof by the Parent
or any
Borrower. To the extent requested by the Administrative Agent, any Borrower
owning any Borrowing Base Asset or any Real Property Asset which is proposed
for
qualification as such shall execute and deliver to the Administrative Agent
an
environmental indemnity agreement with respect to thereto in form and substance
acceptable to the Administrative Agent.
6.14 REIT
Status.
(a) The
Borrowers shall, for the entire term of this Credit Agreement, retain their
Qualified REIT Subsidiary status.
(b) The
Parent shall, at all times during the term hereof, maintain its status
as a
REIT.
6.15 New
Subsidiaries.
(a) Upon
the
acquisition, incorporation or other creation of any direct or indirect
Subsidiary of the Parent which owns or is to own a Borrowing Base Asset,
the
Borrowers shall (i) cause such Subsidiary to become a Borrower hereunder
through
the execution and delivery to the Administrative Agent of a Borrower Joinder
Agreement on or before the earlier of (A) the date on which a Real Property
Asset owned by such Subsidiary is included in any calculation (pro forma
or
otherwise) of the Borrowing Base Amount and (B) the deadline for the delivery
of
the next Compliance Certificate pursuant to Section 6.02(a)),
and
(ii) cause such Subsidiary to deliver such other documentation as the
Administrative Agent may reasonably request in connection with the foregoing,
including, without limitation, certified resolutions and other organizational
and authorizing documents of such Subsidiary, favorable opinions of counsel
to
such Subsidiary (which shall cover, among other things, the legality, validity,
binding effect and enforceability of the documentation referred to above),
all
in form, content and scope reasonably satisfactory to the Administrative
Agent.
(b) Upon
the
acquisition, incorporation or other creation of any other direct or indirect
Subsidiary of the Parent (other than an Unrestricted Subsidiary), the Borrowers
shall (i) cause such Subsidiary to become a Subsidiary Guarantor hereunder
through the execution and delivery to the Administrative Agent of a Subsidiary
Guarantor Joinder Agreement within thirty (30) days of the acquisition,
incorporation or creation of such Subsidiary, and (ii) cause such Subsidiary
to
deliver such other documentation as the Administrative Agent may reasonably
request in connection with the foregoing, including, without limitation,
certified resolutions and other organizational and authorizing documents
of such
Subsidiary.
6.16 Pledged
Assets.
The
Borrowers shall at all times subject all Borrowing Base Assets and all
of their
respective personal property to first priority Liens (subject in any case
to
Permitted Liens) in favor of the Administrative Agent to secure the Obligations
pursuant to the terms and conditions of the Credit Documents and such other
additional security documents as the Administrative Agent shall reasonably
request, and deliver all Borrowing Base Deliverables (and any updates to
any of
the information or materials delivered as a portion thereof) and such other
documentation as the Administrative Agent may reasonably request in connection
with the foregoing, all in form, content and scope reasonably satisfactory
to
the Administrative Agent. In furtherance of the Borrowers’ obligations under
this Section 6.16,
each of
the Borrowers hereby agree that they shall, from time to time, at their
own
expense, promptly execute, deliver, file and/or record all further instruments
and documents, and take all further action, that may be necessary or desirable,
or that the Administrative Agent may reasonably request (including, without
limitation, the procurement of landlord consents with respect to the assignment
of the applicable Borrower’s interests in any Borrowing Base Assets), in order
to (a) properly evidence the Borrowers’ Obligations hereunder or under any
Credit Document or (b) perfect, continue and protect the Liens and security
interests granted or purported to be granted by any Collateral Documents
and to
enable the Administrative Agent to exercise and enforce its rights and
remedies
hereunder and under any other Credit Document with respect to any Collateral.
The applicable Borrower(s) shall promptly deliver to the Administrative
Agent a
copy of each such instrument and evidence of its proper filing or recording,
as
necessary.
6.17 Appraisals.
The
Borrowers agree that the Administrative Agent shall have the right to request
appraisals with respect to the Borrowing Base Assets and other Real Property
Assets owned by them, that the Administrative Agent shall engage all appraisers
with respect to such appraisals and that the Borrowers shall pay or reimburse
to
the Administrative Agent all reasonable and documented costs and expenses
associated therewith to the extent required by and subject to the provisions
of
Section 10.04
hereof.
6.18 Anti-Terrorism
Laws.
None
of
the Credit Parties nor any of their respective Affiliates (i) will conduct
any
business or will engage in any transaction or dealing with any Prohibited
Person, including making or receiving any contribution of funds, goods
or
services to or for the benefit of any Prohibited Person, (ii) will deal
in, or
will engage in any transaction relating to, any property or interests in
property blocked pursuant to the Executive Order; or (iii) will engage
in or
will conspire to engage in any transaction that evades or avoids, or has
the
purpose of evading or avoiding, or attempts to violate, any of the prohibitions
set forth in the Executive Order or the Patriot Act. Each Borrower covenants
and
agrees to execute and/or deliver to Administrative Agent any certification
or
other evidence requested from time to time by Administrative Agent in its
sole
discretion, confirming such Borrower's compliance with this Section including,
without limitation, any documentation which is necessary for ongoing compliance
with any anti-money laundering Laws applicable to any Lender.
ARTICLE
VII
NEGATIVE
COVENANTS
The
Borrowers hereby covenant and agree (on their own behalf and on behalf
of the
Subsidiary Guarantors and/or Parent, as applicable) that until the Obligations,
together with interest, fees and other obligations hereunder, have been
paid in
full and the Revolving Commitments hereunder shall have terminated:
7.01 Liens.
No
Borrower shall, at any time, create, incur, assume or suffer to exist any
Lien
upon any of its assets or revenues, whether now owned or hereafter acquired,
other than Permitted Liens. The Parent shall not create any Lien upon the
Capital Stock of any Borrower.
7.02 Indebtedness.
No
Borrower shall create, incur, assume or suffer to exist any Indebtedness,
except:
(a) Indebtedness
under the Credit Documents;
(b) Indebtedness
of the Borrowers set forth in Schedule 7.02
(and
renewals, refinancings and extensions thereof on terms and conditions no
less
favorable to such Person than such existing Indebtedness);
(c) unsecured
intercompany Indebtedness of any Borrower to any Credit Party; provided,
that
such Indebtedness shall be expressly subordinate in all respects to the
Obligations on terms reasonably acceptable to the Administrative Agent;
and
(d) Indebtedness
of the Borrowers arising solely from unsecured guarantees of Indebtedness
of the
Parent pursuant to any public or private debt offering (including, without
limitation the Senior Notes and any additional senior or subordinated note
issuance, convertible debentures, or similar public or private issuance,
but
specifically excluding any bank credit facility or similar debt
facility).
7.03 Fundamental
Changes.
Neither
the Parent nor any Borrower shall merge, dissolve, liquidate, consolidate
with
or into another Person; provided,
that,
notwithstanding the foregoing provisions of this Section 7.03,
(a) any
Borrower may merge or consolidate with any other Borrower, (b) any Consolidated
Party (including any Unrestricted Subsidiary) which is not a Credit Party
may be
merged or consolidated with or into any Credit Party provided that such
Credit
Party shall be the continuing or surviving corporation, (c) any Subsidiary
Guarantor may be
merged
or consolidated with or into any other Subsidiary Guarantor
and (d)
any Subsidiary Guarantor may
dissolve, liquidate or wind up its affairs at any time provided that such
dissolution, liquidation or winding up, as applicable, could not reasonably
be
expected to have a Material Adverse Effect.
7.04 Dispositions;
Acquisitions.
(a) The
Borrowers shall not make any sale, lease, transfer or other disposition
of (i)
any Borrowing Base Asset, except to the extent permitted pursuant to
Section 7.12
hereof;
or (ii) any other material assets of the Borrowers unless (A) such sale,
lease,
transfer or other disposition is performed in the ordinary course of the
Borrowers’ Businesses or (B) the consideration paid in connection with such
other material assets (1) is in cash or Cash Equivalents, (2) is in an
amount
not less than the fair market value of the Property disposed of and (3)
does not
exceed, in the aggregate during any calendar year (for the all Borrowers
and all
such sales, leases, transfers or other dispositions) $500,000. The Parent
shall
not, in any case, transfer, sell, lease, pledge or otherwise dispose of
the
Capital Stock of the Borrowers held by it without the prior written consent
of
the Administrative Agent (which consent may be granted or withheld in the
sole
discretion of the Administrative Agent).
(b) The
Borrowers shall not, without the prior written consent of the Administrative
Agent (which consent may be granted or withheld in the sole discretion
of the
Administrative Agent), make any Investments or otherwise acquire any material
real or personal property other than: (i) acquisitions of personal property
in
the ordinary course of business to the extent required to continue to operate
the Borrowers’ Businesses in the manner in which they are currently being
operated and (ii) investments in cash or Cash Equivalents.
7.05 Business
Activities.
No
Borrower shall engage in any business activities other than owning, developing,
managing and providing secured financing for real and personal property
and
similar interests in leasehold properties which are owned by or net leased
to
healthcare operators for use as Healthcare Facilities.
7.06 Transactions
with Affiliates and Insiders.
No
Borrower shall, at any time, enter into or permit to exist any transaction
or
series of transactions with any officer, director or Affiliate of such
Person
other than (a) advances of working capital to any such Borrower, (b) transfers
of cash and assets to any Borrower, (c) intercompany transactions expressly
permitted by Section 7.02,
Section 7.03
or
Section 7.04,
(d)
normal compensation and reimbursement of expenses of officers and directors
and
(e) except as otherwise specifically limited in this Credit Agreement,
other
transactions which are entered into in the ordinary course of such Borrower’s
business on terms and conditions substantially as favorable to such Borrower
as
would be obtainable by it in a comparable arms-length transaction with
a Person
other than an officer, director or Affiliate.
7.07 Organization
Documents; Fiscal Year.
No
Credit
Party shall (a) amend, modify or change its organization documents in a
manner
adverse to the Lenders or (b) change its fiscal year.
7.08 Modifications
to Other Documents.
The
Borrowers shall not, without the prior written consent of the Required
Lenders
enter into any material amendment or modification or cancel or terminate
any
Material Contract prior to its stated maturity (subject to the provisions
of
this Section
7.08(b)
with
respect to Facility Leases) prior to its stated maturity. Notwithstanding
the
foregoing, with respect to any Facility Lease, the Borrowers may amend
or modify
or permit the amendment or modification of any Facility Lease without the
Required Lenders’ prior written consent, except to the extent such amendment or
modification: (i) decreases the rent or any other monetary obligations
under any Facility Lease (except as set forth in the proviso to this sentence);
(ii) shortens the term of any Facility Lease; (iii) releases or limits
the liability of any guarantor under any Facility Lease; (iv) releases any
security deposits or letters of credit or any other security or collateral
under
any Facility Lease; (v) consents to the assignment, delegation or other
transfer of rights and obligations under any Facility Lease; or (vi) makes
any other material change to the terms and conditions of any Facility Lease
or
increases in any material respect the obligations or liabilities of the
applicable Borrower thereunder; provided, however, that to the extent such
amendment, modification or restructuring of a Facility Lease involves the
replacement of a Tenant, (A) the Borrowers shall have delivered to the
Lenders
and the Administrative Agent the (1) identity of such proposed new tenant
(the
“New
Tenant”),
(2)
the proposed lease with such New Tenant (the “New
Lease”)
and
(3) such other information as reasonably requested and (B) provided that
(1)
such New Tenant is an Eligible Tenant, (2) the New Lease provides for rent
payments in each year which are at least eighty percent (80%) of the rent
payments in each year due under the lease being amended, modified or replaced
(the “Existing
Facility Lease”)
and
(3) the New Lease is otherwise substantially similar in all material respects
to
the Existing Facility Lease, then within twenty (20) Business Days after
receiving the foregoing information from the Borrowers, if the Required
Lenders
have not either approved or disapproved such proposal, the Required Lenders
shall be deemed to have approved such proposal.
7.09 Ownership
of Subsidiaries.
Notwithstanding
any other provisions of this Credit Agreement to the contrary, (a) no Borrower
shall own any Capital Stock of any other entity; (b) no Person other than
the
Parent shall own any Capital Stock of any Borrower; and (c) no Borrower
shall
permit, create, incur, assume or suffer to exist any Lien on any Capital
Stock
of any Borrower.
7.10 No
Further Negative Pledges.
No
Borrower will enter into, assume or become subject to any Negative Pledges
or
agreement prohibiting or otherwise restricting the existence of any Lien
upon
any of its Property in favor of the Administrative Agent (for the benefit
of the
Lenders) for the purpose of securing the Obligations, whether now owned
or
hereafter acquired, or requiring the grant of any security for any obligation
if
such Property is given as security for the Obligations, except (a) in connection
with any Permitted Lien or any document or instrument governing any Permitted
Lien, provided that any such restriction contained therein relates only
to the
asset or assets subject to such Permitted Lien, and (b) pursuant to customary
restrictions and conditions contained in any agreement relating to the
sale of
any Property permitted under Section 7.04,
pending
the consummation of such sale.
7.11 Limitation
on Restricted Actions.
The
Borrowers will not directly or indirectly, create or otherwise cause or
suffer
to exist or become effective any encumbrance or restriction on the ability
of
any such Person to (a) pay dividends or make any other distributions to
the
Parent on its Capital Stock or with respect to any other interest or
participation in, or measured by, its profits, (b) pay any Indebtedness
or other
obligation owed to any Credit Party, (c) make loans or advances to any
Credit
Party, (d) sell, lease or transfer any of its properties or assets to any
Credit
Party, or (e) act as a Borrower and pledge its assets pursuant to the Credit
Documents or any renewals, refinancings, exchanges, refundings or extension
thereof, except (in respect of any of the matters referred to in
clauses (a)-(d) above) for such encumbrances or restrictions existing under
or by reason of (i) this Credit Agreement and the other Credit Documents,
(ii)
applicable Law, (iii) any Lien or any documentation or instrument governing
any
Lien permitted under Section 7.01
provided
that any such restriction contained therein relates only to the asset or
assets
subject to such Lien, or (v) customary restrictions and conditions contained
in
any agreement relating to the sale of any Borrowing Base Assets permitted
under
Section 7.04,
pending
the consummation of such sale.
7.12 Addition/Replacement
of Borrowing Base Assets.
(a) The
Borrowers shall not request a release of any Borrowing Base Assets from
the
Liens established pursuant to the applicable Mortgage Instrument and Assignment
of Leases with respect thereto or add any Real Property Assets as Borrowing
Base
Assets hereunder except in accordance with the following:
(i) The
Borrowers may at any time include additional Real Property Assets (which
satisfy
the requirements set forth in the definition of Borrowing Base Assets,
including, without limitation, delivery of each of the Borrowing Base Asset
Deliverables with respect thereto) as Borrowing Base Assets with the written
approval of the Administrative Agent and Required Lenders.
(ii) The
Borrowers may obtain releases of Borrowing Base Assets from the Liens and
security interests of the Administrative Agent hereunder and under the
Collateral Documents relating thereto through satisfaction of each of the
following conditions: (A) the applicable Borrower shall deliver to the
Administrative Agent, not less than five (5) days prior to the date of such
requested release a written request for release of the applicable Borrowing
Base
Asset, (B) the applicable Borrower shall deliver, together with such request
for
release, a pro forma Compliance Certificate showing that, on a pro forma
basis,
after giving effect to such release, (1) all financial covenants contained
herein shall be satisfied and (2) the outstanding principal amount of
Obligations shall not exceed the lesser of the Aggregate Revolving Committed
Amount and the Borrowing Base Amount (after giving effect to the removal
of such
Borrowing Base Asset from the calculation of the Borrowing Base Amount,
if
applicable), (C) a Responsible Officer of the Borrowers shall certify in
writing
to the Administrative Agent that no Default or Event of Default shall exist
immediately after giving effect to the applicable release and (D) the
Administrative Agent shall have received evidence, acceptable to it in
its
discretion that the matters set forth in such request, Compliance Certificate
and certification are true and correct in all material respects. To the
extent
all such conditions to release are satisfied, the Administrative Agent
will, at
the Borrowers’ expense, deliver to the applicable Borrower such documentation as
is reasonably necessary to evidence the release of the Administrative Agent’s
security interest, if any, in the released Borrowing Base Asset(s). The
Borrowers shall not otherwise actively cause or willfully fail to take
any
commercially reasonable action that causes any Borrowing Base Asset to
fail to
qualify as such during the term of this Credit Agreement.
(iii) Notwithstanding
anything herein to the contrary, the appraised value of the Borrowing Base
Assets released and substituted in any fiscal year pursuant to this Section 7.12
shall
not exceed $25,000,000 in the aggregate and the appraised value of the
Borrowing
Base Assets released and substituted during the entire term hereof shall
not, in
any case (and regardless of whether the $25,000,000/year limitation is
met
during any given year), exceed $75,000,000 in the aggregate.
(b) The
Borrowers shall not fail to deliver to the Administrative Agent, immediately
upon a Responsible Officer of any Borrower obtaining knowledge of a Borrowing
Base Asset failing to qualify as such, a pro forma Borrowing Base Certificate
(which certificate shall include an update to the information set forth
on
Schedule 5.12)
demonstrating that, upon giving effect to the removal from the calculation
of
the Borrowing Base Amount of the Collateral Value or Mortgageability Amount
(as
applicable) attributable to such former Borrowing Base Asset, the Borrowers
shall be in compliance with Section 2.01(a)
hereof.
(c) The
Borrowers shall not include any Real Property Asset as a Borrowing Base
Asset on
any schedule, Borrowing Base Certificate or Compliance Certificate delivered
in
connection with this Credit Agreement unless (i) such Real Property Asset
has
been approved as a Borrowing Base Asset as evidenced by its inclusion on
Part I of Schedule 5.12
hereof
as of the Closing Date or has been approved in writing by the Administrative
Agent and Required Lenders and (ii) such Real Property Asset continues
to
qualify as a Borrowing Base Asset as of the date of such inclusion.
ARTICLE
VIII
EVENTS
OF DEFAULT AND REMEDIES
8.01 Events
of Default.
The
occurrence and continuation of any of the following shall constitute an
Event of
Default:
(a) Non-Payment.
The
Borrowers or any other Credit Party fails to pay when and as required to
be paid
herein, (i) any amount of principal of any Loan or any L/C Obligation,
(ii)
within five (5) days after the same becomes due, any interest on any Loan
or on
any L/C Obligation or any Unused Fee or (iii) within ten (10) days after
the
earlier of (A) a Responsible Officer of the Parent or any Borrower becoming
aware that the same has become due or (B) written notice from the Administrative
Agent to the Borrowers, any other fee payable herein or any other amount
payable
herein or under any other Credit Document becomes due; or
(b) Specific
Covenants.
The
Borrowers fail to perform or observe any term, covenant or agreement contained
in (i) any of Sections
6.01 6.02
or
6.10
within
ten (10) days after the same becomes due or required or (ii) any of Sections 6.03,
6.06,
6.07,
6.11,
6.12,
6.14,
6.15
or
6.16
or
Article VII;
or
(c) Other
Defaults.
Any
Credit Party fails to perform or observe any other covenant or agreement
(not
specified in subsection (a) or (b) above) contained in any Credit Document
on its part to be performed or observed and such failure continues for
thirty
(30) days after the earlier of (i) a Responsible Officer of the Parent
or any
Borrower becoming aware of such default or (ii) written notice thereof
by the
Administrative Agent to the Borrowers (or,
if
such failure cannot be reasonably cured within such period, sixty (60)
days, so
long as the applicable Credit Party has diligently commenced such cure
and is
diligently pursuing completion thereof);
or
(d) Representations
and Warranties.
Any
representation, warranty, certification or statement of fact made or deemed
made
by the Borrowers on behalf of the Borrowers, the Parent or any other Credit
Party and contained in this Credit Agreement, in any other Credit Document,
or
in any document delivered in connection herewith or therewith shall be
incorrect
or misleading in any material respect when made or deemed made; or
(e) Cross-Default.
(i)
there occurs any event of default under any of the Senior Note Indentures;
(ii)
the Parent or any Borrower (A) fails to perform or observe (beyond the
applicable grace or cure period with respect thereto, if any) any Contractual
Obligation if such failure could reasonably be expected to have a Material
Adverse Effect, (B) fails to make any payment when due (whether by scheduled
maturity, required prepayment, acceleration, demand, or otherwise and beyond
the
applicable grace or cure period with respect thereto, if any) in respect
of any
Indebtedness (other than Indebtedness hereunder and Indebtedness under
Swap
Contracts) or otherwise fails to observe or perform any other agreement
or
condition relating to any such Indebtedness or contained in any instrument
or
agreement evidencing, securing or relating thereto, or any other event
occurs,
the effect of which event of default is to cause, or to permit the holder
or
holders of such Indebtedness (or a trustee or agent on behalf of such holder
or
holders) to cause, with the giving of notice if required, such Indebtedness
to
be demanded or to become due or to be repurchased, prepaid, defeased or
redeemed
(automatically or otherwise), or an offer to repurchase, prepay, defease
or
redeem such Indebtedness to be made, prior to its stated maturity, or cash
collateral in respect thereof to be demanded, in each case to the extent
such
Indebtedness or other obligation is in an amount (including undrawn committed
or
available amounts and including amounts owing to all creditors under any
combined or syndicated credit arrangement) of more than the Threshold Amount;
or
(iii) there occurs under any Swap Contract an Early Termination Date (as
defined
in such Swap Contract) resulting from (A) any event of default under such
Swap
Contract as to which a Borrower is the Defaulting Party (as defined in
such Swap
Contract) or (B) any Termination Event (as so defined) under such Swap
Contract
as to which a Borrower is an Affected Party (as so defined) and, in either
event, the Swap Termination Value owed by such Borrower as a result thereof
is
greater than the Threshold Amount; or
(f) Insolvency
Proceedings, Etc.
The
Parent or any Borrower institutes or consents to the institution of any
proceeding under any Debtor Relief Law, or makes an assignment for the
benefit
of creditors; or applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer
for it or for all or any material part of its properties; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer
is
appointed without the application or consent of the Parent or such Borrower
and
the appointment continues undischarged or unstayed for ninety (90) calendar
days; or any proceeding under any Debtor Relief Law relating to the Parent
or
any Borrower or to all or any material part of its property is instituted
without the consent of the Parent or such Borrower, as the case may be,
and
continues undismissed or unstayed for ninety (90) calendar days, or an
order for
relief is entered in any such proceeding; or
(g) Inability
to Pay Debts; Attachment.
(i) The
Parent or any Borrower becomes unable or admits in writing its inability
or
fails generally to pay its debts as they become due, or (ii) any writ or
warrant
of attachment or execution or similar process in an amount in excess of
the
Threshold Amount is issued or levied against all or any material part of
the
properties of the Parent or any Borrower and is not released, vacated or
fully
bonded within sixty (60) days after its issue or levy; or
(h) Judgments.
There
is entered against the Parent or any Borrower (i) any one or more final
judgments or orders for the payment of money in an aggregate amount exceeding
the Threshold Amount (to the extent not covered by independent third-party
insurance as to which the insurer does not dispute coverage), or (ii) any
one or
more non-monetary final judgments that have, or could reasonably be expected
to
have, individually or in the aggregate, a Material Adverse Effect and,
in either
case, (A) enforcement proceedings are commenced by any creditor upon such
judgment or order, or (B) there is a period of ten (10) consecutive days
during
which a stay of enforcement of such judgment, by reason of a pending appeal
or
otherwise, is not in effect; or
(i) ERISA.
(i) An
ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan
which
has resulted or could reasonably be expected to result in liability of
a
Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or
the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii)
a
Borrower or any ERISA Affiliate fails to pay when due, after the expiration
of
any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan
in an aggregate amount in excess of the Threshold Amount; or
(j) Invalidity
of Credit Documents; Guaranty.
(i) Any
Credit Document, at any time after its execution and delivery and for any
reason
other than as expressly permitted hereunder or as a result of satisfaction
in
full of all the Obligations or as a result of the Administrative Agent’s failure
to record and/or file where and/or when appropriate any Collateral Documents
or
any continuation statements, ceases to be in full force and effect; or
any
Credit Party contests in any manner the validity or enforceability of any
Credit
Document; or any Credit Party denies that it has any or further liability
or
obligation under any Credit Document, or purports to revoke, terminate
or
rescind any Credit Document; or (ii) except as the result of or in connection
with a dissolution, merger or disposition of a Subsidiary Guarantor not
prohibited by the terms of this Credit Agreement, the Guaranty shall cease
to be
in full force and effect, or any Guarantor hereunder shall deny or disaffirm
such Guarantor’s obligations under such Guaranty, or any Guarantor shall default
in the due performance or observance of any term, covenant or agreement
on its
part to be performed or observed pursuant to the Guaranty; or
(k) Change
of Control.
There
occurs any Change of Control.
8.02 Remedies
Upon Event of Default.
If
any
Event of Default occurs and is continuing, the Administrative Agent shall,
at
the request of, or may, with the consent of, the Required Lenders, upon
written
notice to the Borrowers in any instance, take any or all of the following
actions:
(a) declare
the commitment of each Lender to make Loans and any obligation of the L/C
Issuer
to make L/C Credit Extensions to be terminated, whereupon such commitments
and
obligation shall be terminated;
(b) declare
the unpaid principal amount of all outstanding Loans, all interest accrued
and
unpaid thereon, and all other amounts owing or payable hereunder or under
any
other Credit Document to be immediately due and payable, without presentment,
demand, protest or additional notice of any kind, all of which are hereby
expressly waived by the Borrowers;
(c) require
that the Borrowers Cash Collateralize the L/C Obligations (in an amount
equal to
the then Outstanding Amount thereof); and
(d) exercise
on behalf of itself and the Lenders all rights and remedies available to
it and
the Lenders under the Credit Documents or applicable law;
provided,
however, that upon the occurrence of an actual or deemed entry of an order
for
relief with respect to the Borrowers under the Bankruptcy Code of the United
States, the obligation of each Lender to make Loans and any obligation
of the
L/C Issuer to make L/C Credit Extensions shall automatically terminate,
the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrowers to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without further
act
of the Administrative Agent or any Lender.
8.03 Application
of Funds.
After
the
exercise of remedies in accordance with the provisions of Section 8.02
(or
after the Loans have automatically become immediately due and payable and
the
L/C Obligations have automatically been required to provide Cash Collateral
as
set forth in the proviso to Section 8.02),
any
amounts received on account of the Obligations shall be applied by the
Administrative Agent in the following order:
First,
to
payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including Attorney Costs and amounts payable
under
Article III)
payable
to the Administrative Agent in its capacity as such;
Second,
to
payment of that portion of the Obligations constituting fees, indemnities
and
other amounts (other than principal and interest) payable to the Lenders
(including Attorney Costs and amounts payable under Article III),
ratably among the Lenders in proportion to the amounts described in this
clause
Second payable to them;
Third,
to
payment of that portion of the Obligations constituting accrued and unpaid
interest on the Loans and L/C Borrowings, ratably among the Lenders in
proportion to the respective amounts described in this clause Third payable
to
them;
Fourth,
to (a)
payment of that portion of the Obligations constituting unpaid principal
of the
Loans and L/C Borrowings and (b) the Administrative Agent for the account
of the
L/C Issuer, to provide Cash Collateral for that portion of the L/C Obligations
comprised of the aggregate undrawn amount of Letters of Credit, ratably
among
such parties in proportion to the respective amounts described in this
clause
Fourth held by them;
Fifth,
to
payment of that portion of the Obligations constituting obligations under
Swap
Contracts between any Borrower and any Lender or Affiliate of any Lender
(including, without limitation, payment of breakage, termination or other
amounts owing in respect of any Swap Contract between any Borrower and
any
Lender, or any Affiliate of a Lender, to the extent such Swap Contract
is
permitted hereunder); and
Last,
the
balance, if any, after all of the Obligations have been indefeasibly paid
in
full, to the Borrowers or as otherwise required by Law.
Subject
to Section 2.03(c),
amounts
used to provide Cash Collateral for the aggregate undrawn amount of Letters
of
Credit pursuant to clause Fourth above shall be applied to satisfy drawings
under such Letters of Credit as they occur. If any amount remains on deposit
as
Cash Collateral after all Letters of Credit have either been fully drawn
or
expired, such remaining amount shall be applied to the other Obligations,
if
any, in the order set forth above.
ARTICLE
IX
ADMINISTRATIVE
AGENT
9.01 Appointment
and Authorization of Administrative Agent.
(a) Each
Lender hereby irrevocably appoints, designates and authorizes the Administrative
Agent to take such action on its behalf under the provisions of this Credit
Agreement and each other Credit Document and to exercise such powers and
perform
such duties as are expressly delegated to it by the terms of this Credit
Agreement or any other Credit Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Credit Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly
set
forth herein, nor shall the Administrative Agent have or be deemed to have
any
fiduciary relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be
read
into this Credit Agreement or any other Credit Document or otherwise exist
against the Administrative Agent. Without limiting the generality of the
foregoing sentence, the use of the term “agent” herein and in the other Credit
Documents with reference to the Administrative Agent is not intended to
connote
any fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable Law. Instead, such term is used merely as a
matter of
market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
(b) The
L/C
Issuer shall act on behalf of the Lenders with respect to any Letters of
Credit
issued by it and the documents associated therewith, and the L/C Issuer
shall
have all of the benefits and immunities (i) provided to the Administrative
Agent
in this Article VIII
with
respect to any acts taken or omissions suffered by the L/C Issuer in connection
with Letters of Credit issued by it or proposed to be issued by it and
the
applications and agreements for letters of credit pertaining to such Letters
of
Credit as fully as if the term “Administrative
Agent”
as
used
in this Article VIII
and in
the definition of “Agent-Related
Person”
included the L/C Issuer with respect to such acts or omissions, and (ii)
as
additionally provided herein with respect to the L/C Issuer.
9.02 Delegation
of Duties.
The
Administrative Agent may execute any of its duties under this Credit Agreement
or any other Credit Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties.
The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects in the absence of gross
negligence or willful misconduct.
9.03 Liability
of Administrative Agent.
No
Agent-Related Person shall (a) be liable for any action taken or omitted
to be
taken by any of them under or in connection with this Credit Agreement
or any
other Credit Document or the transactions contemplated hereby (except for
its
own gross negligence or willful misconduct in connection with its duties
expressly set forth herein), or (b) be responsible in any manner to any
Lender
or participant for any recital, statement, representation or warranty made
by
any Credit Party or any officer thereof, contained herein or in any other
Credit
Document, or in any certificate, report, statement or other document referred
to
or provided for in, or received by the Administrative Agent under or in
connection with, this Credit Agreement or any other Credit Document, or
the
validity, effectiveness, genuineness, enforceability or sufficiency of
this
Credit Agreement or any other Credit Document, or for any failure of any
Credit
Party or any other party to any Credit Document to perform its obligations
hereunder or thereunder. No Agent-Related Person shall be under any obligation
to any Lender or participant to ascertain or to inquire as to the observance
or
performance of any of the agreements contained in, or conditions of, this
Credit
Agreement or any other Credit Document, or to inspect the properties, books
or
records of any Credit Party or any Affiliate thereof.
9.04 Reliance
by Administrative Agent.
(a) The
Administrative Agent shall be entitled to rely, and shall be fully protected
in
relying, upon any writing, communication, signature, resolution, representation,
notice, consent, certificate, affidavit, letter, telegram, facsimile, telex
or
telephone message, electronic mail message, statement or other document
or
conversation believed by it to be genuine and correct and to have been
signed,
sent or made by the proper Person or Persons, and upon advice and statements
of
legal counsel (including counsel to any Credit Party), independent accountants
and other experts selected by the Administrative Agent. The Administrative
Agent
shall be fully justified in failing or refusing to take any action under
any
Credit Document unless it shall first receive such advice or concurrence
of the
Required Lenders as it deems appropriate and, if it so requests, it shall
first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense that may be incurred by it by reason of taking or continuing
to take
any such action. The Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Credit Agreement or
any
other Credit Document in accordance with a request or consent of the Required
Lenders (or such greater number of Lenders as may be expressly required
hereby
in any instance) and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders.
(b) For
purposes of determining compliance with the conditions specified in Section 4.01,
each
Lender that has signed this Credit Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other
matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
9.05 Notice
of Default.
The
Administrative Agent shall not be deemed to have knowledge or notice of
the
occurrence of any Default or Event of Default, except with respect to defaults
in the payment of principal, interest and fees required to be paid to the
Administrative Agent for the account of the Lenders, unless the Administrative
Agent shall have received written notice from a Lender or any Borrower
referring
to this Credit Agreement, describing such Default or Event of Default and
stating that such notice is a “notice of default.” The Administrative Agent will
notify the Lenders of its receipt of any such notice. The Administrative
Agent
shall take such action with respect to such Default or Event of Default
as may
be directed by the requisite Lenders in accordance herewith; provided,
however,
that unless and until the Administrative Agent has received any such direction,
the Administrative Agent may (but shall not be obligated to) take such
action,
or refrain from taking such action, with respect to such Default or Event
of
Default as it shall deem advisable or in the best interest of the
Lenders.
9.06 Credit
Decision; Disclosure of Confidential Information by Administrative
Agent.
Each
Lender acknowledges that no Agent-Related Person has made any representation
or
warranty to it, and that no act by the Administrative Agent hereafter taken,
including any consent to and acceptance of any assignment or review of
the
affairs of any Credit Party or any Affiliate thereof, shall be deemed to
constitute any representation or warranty by any Agent-Related Person to
any
Lender as to any matter, including whether Agent-Related Persons have disclosed
material information in their possession (in each case, except to the extent
the
Administrative Agent has confirmed to any Lender in writing the satisfaction
of
conditions to funding as of the Closing Date). Each Lender represents to
the
Administrative Agent that it has, independently and without reliance upon
any
Agent-Related Person and based on such documents and information as it
has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition
and
creditworthiness of the Credit Parties and their respective Subsidiaries,
and
all applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Credit
Agreement and to extend credit to the Borrowers and the other Credit Parties
hereunder. Each Lender also represents that it will, independently and
without
reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make
its own
credit analysis, appraisals and decisions in taking or not taking action
under
this Credit Agreement and the other Credit Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrowers and the other Credit Parties. Except
for
notices, reports and other documents expressly required to be furnished
to the
Lenders by the Administrative Agent herein, the Administrative Agent shall
not
have any duty or responsibility to provide any Lender with any credit or
other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of any of the Credit Parties or
any of
their respective Affiliates that may come into the possession of any
Agent-Related Person.
9.07 Indemnification
of Administrative Agent.
Whether
or not the transactions contemplated hereby are consummated, the Lenders
shall
indemnify upon demand each Agent-Related Person (to the extent not reimbursed
by
or on behalf of any Credit Party and without limiting the obligation of
any
Credit Party to do so), pro rata, and hold harmless each Agent-Related
Person
from and against any and all Indemnified Liabilities incurred by it; provided,
however, that no Lender shall be liable for the payment to any Agent-Related
Person of any portion of such Indemnified Liabilities to the extent determined
in a final, nonappealable judgment by a court of competent jurisdiction
to have
resulted from such Agent-Related Person’s own gross negligence or willful
misconduct; provided, however, that no action taken in accordance with
the
directions of the Required Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section. Without
limitation of the foregoing, each Lender shall reimburse the Administrative
Agent upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Administrative Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings
or
otherwise) of, or legal advice in respect of rights or responsibilities
under,
this Credit Agreement, any other Credit Document, or any document contemplated
by or referred to herein, to the extent that the Administrative Agent is
not
reimbursed for such expenses by or on behalf of the Borrowers. The undertaking
in this Section shall survive termination of the Aggregate Commitments, the
payment of all other Obligations and the resignation of the Administrative
Agent.
9.08 Administrative
Agent in its Individual Capacity.
Bank
of
America and its Affiliates may make loans to, issue letters of credit for
the
account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting
or other
business with each of the Credit Parties and their respective Affiliates
as
though Bank of America were not the Administrative Agent or the L/C Issuer
hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, Bank of America or its Affiliates
may receive information regarding any Credit Party or its Affiliates (including
information that may be subject to confidentiality obligations in favor
of such
Credit Party or such Affiliate) and acknowledge that the Administrative
Agent
shall be under no obligation to provide such information to them. With
respect
to its Loans, Bank of America shall have the same rights and powers under
this
Credit Agreement as any other Lender and may exercise such rights and powers
as
though it were not the Administrative Agent or the L/C Issuer, and the
terms
“Lender” and “Lenders” include Bank of America in its individual
capacity.
9.09 Successor
Administrative Agent.
The
Administrative Agent may resign as Administrative Agent upon thirty (30)
days’ notice to the Lenders; provided that any such resignation by Bank of
America shall also constitute its resignation as L/C Issuer and Swing Line
Lender. If the Administrative Agent resigns under this Credit Agreement,
the
Required Lenders shall appoint from among the Lenders a successor administrative
agent for the Lenders, which successor administrative agent shall be consented
to by the Borrower Representative at all times other than during the existence
of an Event of Default (which consent of the Borrower Representative shall
not
be unreasonably withheld or delayed). If no successor administrative agent
is
appointed prior to the effective date of the resignation of the Administrative
Agent, the Administrative Agent may appoint, after consulting with the
Lenders
and the Borrower Representative, a successor administrative agent from
among the
Lenders. Upon the acceptance of its appointment as successor administrative
agent hereunder, the Person acting as such successor administrative agent
shall
succeed to all the rights, powers and duties of the retiring Administrative
Agent, L/C Issuer and Swing Line Lender and the respective terms “Administrative
Agent,” “L/C Issuer” and “Swing Line Lender” thereafter shall mean such
successor administrative agent, Letter of Credit issuer and swing line
lender,
and the retiring Administrative Agent’s appointment, powers and duties as
Administrative Agent shall be terminated and the retiring L/C Issuer’s and Swing
Line Lender’s rights, powers and duties as such shall be terminated, without any
other or further act or deed on the part of such retiring L/C Issuer or
Swing
Line Lender or any other Lender, other than the obligation of the successor
L/C
Issuer to issue letters of credit in substitution for the Letters of Credit,
if
any, outstanding at the time of such succession or to make other arrangements
satisfactory to the retiring L/C Issuer to effectively assume the obligations
of
the retiring L/C Issuer with respect to such Letters of Credit. After any
retiring Administrative Agent’s resignation hereunder as Administrative Agent,
the provisions of this Article IX
and
Sections 10.04
and
10.05
shall
inure to its benefit as to any actions taken or omitted to be taken by
it while
it was Administrative Agent under this Credit Agreement. If no successor
administrative agent has accepted appointment as Administrative Agent by
the
date thirty (30) days following a retiring Administrative Agent’s notice of
resignation, the retiring Administrative Agent’s resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties
of
the Administrative Agent hereunder until such time, if any, as the Required
Lenders appoint a successor agent as provided for above.
9.10 Administrative
Agent May File Proofs of Claim.
In
case
of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Credit Party, the Administrative Agent (irrespective
of whether the principal of any Loan or L/C Obligation shall then be due
and
payable as herein expressed or by declaration or otherwise and irrespective
of
whether the Administrative Agent shall have made any demand on the Borrowers)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(a) to
file
and prove a claim for the whole amount of the principal and interest owing
and
unpaid in respect of the Loans, L/C Obligations and all other Obligations
(other
than obligations under Swap Contracts to which the Administrative Agent
is not a
party) that are owing and unpaid and to file such other documents as may
be
necessary or advisable in order to have the claims of the Lenders and the
Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders and the Administrative
Agent
and their respective agents and counsel and all other amounts due the Lenders
and the Administrative Agent under Sections 2.03(i)
and
(j),
2.09
and
10.04)
allowed
in such judicial proceeding; and
(b) to
collect and receive any monies or other property payable or deliverable
on any
such claims and to distribute the same;
and
any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by
each
Lender to make such payments to the Administrative Agent and, in the event
that
the Administrative Agent shall consent to the making of such payments directly
to the Lenders, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts
due the
Administrative Agent under Sections 2.09
and
10.04.
Nothing
contained herein shall be deemed to authorize the Administrative Agent
to
authorize or consent to or accept or adopt on behalf of any Lender any
plan of
reorganization, arrangement, adjustment or composition affecting the Obligations
or the rights of any Lender or to authorize the Administrative Agent to
vote in
respect of the claim of any Lender in any such proceeding.
9.11 Guaranty
Matters.
The
Lenders irrevocably authorize the Administrative Agent, at its option and
in its
discretion to release any Guarantor (other than the Parent) from its obligations
under the Guaranty if such Person either (i) ceases to be a Subsidiary
as a
result of a transaction permitted hereunder or (ii) has been designated
as an
Unrestricted Subsidiary. Upon request by the Administrative Agent at any
time,
the Required Lenders will confirm in writing the authority of the Administrative
Agent to release any Guarantor from its obligations hereunder pursuant
to this
Section 9.11.
Upon
the release of any Guarantor pursuant to this Section
9.11,
the
Administrative Agent shall (to the extent applicable) deliver to the
Credit
Parties,
upon
the Credit
Parties' request
and at the Credit
Parties' expense,
such documentation as is reasonably necessary to evidence the release of
such
Guarantor from its obligations under the Credit Documents.
9.12 Other
Agents; Arrangers and Managers.
None
of
the Lenders or other Persons identified on the facing page or signature
pages of
this Credit Agreement as a “syndication agent,” “documentation agent,”
“co-agent,” “book manager,” “lead manager,” “arranger,” “lead arranger” or
“co-arranger” shall have any right, power, obligation, liability, responsibility
or duty under this Credit Agreement other than, in the case of such Lenders,
those applicable to all Lenders as such. Without limiting the foregoing,
none of
the Lenders or other Persons so identified shall have or be deemed to have
any
fiduciary relationship with any Lender. Each Lender acknowledges that it
has not
relied, and will not rely, on any of the Lenders or other Persons so identified
in deciding to enter into this Credit Agreement or in taking or not taking
action hereunder.
ARTICLE
X
MISCELLANEOUS
10.01 Amendments,
Etc.
No
amendment or waiver of, or any consent to deviation from, any provision
of this
Credit Agreement or any other Credit Document shall be effective unless
in
writing and signed by the Borrowers, the Guarantors (if applicable) and
the
Required Lenders and acknowledged by the Administrative Agent, and each
such
amendment, waiver or consent shall be effective only in the specific instance
and for the specific purpose for which it is given; provided, however,
that:
(a) unless
also signed by each Lender directly affected thereby, no such amendment,
waiver
or consent shall:
(i) extend
or
increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 8.02),
it
being understood that the amendment or waiver of an Event of Default or
a
mandatory reduction or a mandatory prepayment in Commitments shall not
be
considered an increase in Commitments,
(ii) waive
non-payment or postpone any date fixed by this Credit Agreement or any
other
Credit Document for any payment of principal, interest, fees or other amounts
due to any Lender hereunder or under any other Credit Document,
(iii) reduce
the principal of, or the rate of interest specified herein on, any Loan
or L/C
Borrowing, or any fees or other amounts payable hereunder or under any
other
Credit Document; provided, however, that only the consent of the Required
Lenders shall be necessary (A) to amend the definition of “Default Rate” or to
waive any obligation of the Borrowers to pay interest at the Default Rate
or (B)
to amend any financial covenant hereunder (or any defined term used therein)
even if the effect of such amendment would be to reduce the rate of interest
on
any Loan or L/C Borrowing or to reduce any fee payable hereunder,
(iv) change
any provision of this Credit Agreement regarding pro rata sharing or pro
rata
funding with respect to (A) the making of advances (including participations),
(B) the manner of application of payments or prepayments of principal,
interest,
or fees, (C) the manner of application of reimbursement obligations from
drawings under Letters of Credit, or (D) the manner of reduction of commitments
and committed amounts,
(v) change
any provision of this Section 10.01(a)
or the
definition of “Required Lenders” or any other provision hereof specifying the
number or percentage of Lenders required to amend, waive or otherwise modify
any
rights hereunder or make any determination or grant any consent hereunder,
or
(vi) release
the Parent or all or substantially all of the Subsidiary Guarantors from
their
obligations hereunder (other than as provided herein or as appropriate
in
connection with transactions permitted hereunder);
(b) unless
also signed by the L/C Issuer, no such amendment, waiver or consent shall
affect
the rights or duties of the L/C Issuer under this Credit Agreement or any
Letter
of Credit Application relating to any Letter of Credit issued or to be
issued by
it;
(c) unless
also signed by the Swing Line Lender, no such amendment, waiver or consent
shall
affect the rights or duties of the Swing Line Lender under this Credit
Agreement; and
(d) unless
also signed by the Administrative Agent, no such amendment, waiver or consent
shall affect the rights or duties of the Administrative Agent under this
Credit
Agreement or any other Credit Document;
provided,
however, that notwithstanding anything to the contrary contained herein,
(i) no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder, except that the Commitment of such Lender
may not
be increased or extended without the consent of such Lender, (ii) each
Lender is
entitled to vote as such Lender sees fit on any bankruptcy or insolvency
reorganization plan that affects the Loans, (iii) each Lender acknowledged
that
the provisions of Section 1126(c) of the Bankruptcy Code supersedes the
unanimous consent provisions set forth herein, (iv) the Required Lenders
may
consent to allow a Credit Party to use cash collateral in the context of
a
bankruptcy or insolvency proceeding, and (v) the Fee Letter may be amended,
or
rights or privileges thereunder waived, in a writing executed only by the
parties thereto.
10.02 Notices
and Other Communications; Facsimile Copies.
(a) General.
Unless
otherwise expressly provided herein, all notices and other communications
provided for hereunder shall be in writing (including by facsimile
transmission). All such written notices shall be mailed certified or registered
mail, faxed or delivered to the applicable address, facsimile number or
(subject
to subsection (c) below) electronic mail address, and all notices and other
communications expressly permitted hereunder to be given by telephone shall
be
made to the applicable telephone number, as follows:
(i) if
to any
Borrower, the Administrative Agent, the L/C Issuer or the Swing Line Lender,
to
the address, facsimile number, electronic mail address or telephone number
specified for such Person on Schedule 10.02 or to such other address,
facsimile number, electronic mail address or telephone number as shall
be
designated by such party in a notice to the other parties; and
(ii) if
to any
other Lender, to the address, facsimile number, electronic mail address
or
telephone number specified in its Administrative Questionnaire or to such
other
address, facsimile number, electronic mail address or telephone number
as shall
be designated by such party in a notice to any Borrower, the Administrative
Agent, the L/C Issuer and the Swing Line Lender.
Notices
sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by
facsimile shall be deemed to have been given when sent (except that, if
not
given during normal business hours for the recipient, shall be deemed to
have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the
extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic
Communications.
Notices
and other communications to the Lenders hereunder may be delivered or furnished
by electronic communication (including e-mail and Internet or intranet
websites)
pursuant to procedures approved by the Administrative Agent, provided that
the
foregoing shall not apply to notices to any Lender pursuant to Article II
if such Lender has notified the Administrative Agent that it is incapable
of
receiving notices under such Article by electronic communication. The
Administrative Agent or the Borrower Representative may, in its respective
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) The
Platform.
THE
PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED
BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS
OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS
IN OR
OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS,
IMPLIED
OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM
VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION
WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative
Agent
or any of its Related Parties (collectively, the “Agent
Parties”)
have
any liability to the Borrower, any Lender, the L/C Issuer or any other
Person
for losses, claims, damages, liabilities or expenses of any kind (whether
in
tort, contract or otherwise) arising out of the Borrowers’ or the Administrative
Agent’s transmission of Borrower Materials through the Internet, except to the
extent that such losses, claims, damages, liabilities or expenses are determined
by a court of competent jurisdiction by a final and nonappealable judgment
to
have resulted from the gross negligence or willful misconduct of such Agent
Party; provided,
however,
that in
no event shall any Agent Party have any liability to the Borrower, any
Lender,
the L/C Issuer or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual
damages).
(d) Effectiveness
of Facsimile Documents and Signatures.
Credit
Documents may be transmitted and/or signed by facsimile. The effectiveness
of
any such documents and signatures shall, subject to applicable Law, have
the
same force and effect as manually-signed originals and shall be binding
on all
Loan Parties, the Administrative Agent and the Lenders. The Administrative
Agent
may also require that any such documents and signatures be confirmed by
a
manually-signed original thereof; provided, however, that the failure to
request
or deliver the same shall not limit the effectiveness of any facsimile
document
or signature.
(e) Reliance
by Administrative Agent and Lenders.
The
Administrative Agent and the Lenders shall be entitled to rely and act
upon any
notices (including telephonic Committed Loan Notices and Swing Line Loan
Notices) purportedly given by or on behalf of the Borrowers even if (i)
such
notices were not made in a manner specified herein, were incomplete or
were not
preceded or followed by any other form of notice specified herein, or (ii)
the
terms thereof, as understood by the recipient, varied from any confirmation
thereof. The Borrowers shall indemnify each Agent-Related Person and each
Lender
from all losses, costs, expenses and liabilities resulting from the reliance
by
such Person on each notice purportedly given by or on behalf of the Borrowers.
All telephonic notices to and other communications with the Administrative
Agent
may be recorded by the Administrative Agent, and each of the parties hereto
hereby consents to such recording.
(f) Change
of Address, Etc.
Each of
the Borrowers, the Administrative Agent, the L/C Issuer and the Swing Line
Lender may change its address, telecopier or telephone number for notices
and
other communications hereunder by notice to the other parties hereto. Each
other
Lender may change its address, telecopier or telephone number for notices
and
other communications hereunder by notice to the Borrowers, the Administrative
Agent, the L/C Issuer and the Swing Line Lender. In addition, each Lender
agrees
to notify the Administrative Agent from time to time to ensure that the
Administrative Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which
notices
and other communications may be sent and (ii) accurate wire instructions
for
such Lender.
10.03 No
Waiver; Cumulative Remedies.
No
failure by any Lender or the Administrative Agent to exercise, and no delay
by
any such Person in exercising, any right, remedy, power or privilege hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise
of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative
and
not exclusive of any rights, remedies, powers and privileges provided by
law.
10.04 Attorney
Costs, Expenses and Taxes.
The
Borrowers agree (a) to pay directly to the provider thereof or to pay or
reimburse the Administrative Agent for all reasonable and documented costs
and
expenses incurred in connection with the development, preparation, negotiation
and execution of this Credit Agreement and the other Credit Documents,
the
preservation of any rights or remedies under this Credit Agreement and
the other
Credit Documents, and any amendment, waiver, consent or other modification
of
the provisions hereof and thereof (whether or not the transactions contemplated
hereby or thereby are consummated), and the consummation and administration
of
the transactions contemplated hereby and thereby, including all Attorney
Costs,
(b) to pay or reimburse the Administrative Agent and each Lender for all
reasonable costs and expenses incurred following an Event of Default in
connection with the enforcement, attempted enforcement, or preservation
of any
rights or remedies under this Credit Agreement or the other Credit Documents
(including all such costs and expenses incurred during any “workout” or
restructuring in respect of the Obligations and during any legal proceeding,
including any proceeding under any Debtor Relief Law), including all Attorney
Costs and (c) all reasonable and documented appraisal costs incurred by
the
Administrative Agent in connection with the Administrative Agent’s procurement
of FIRREA-compliant MAI appraisals with respect to any Borrowing Base Asset
or
any other Real Property Asset owned by any Borrower, to the extent any
such
appraisal is requested by the Administrative Agent (provided, that the
Borrowers
shall not be required to pay the costs and expenses associated with any
Administrative Agent-requested appraisal more than once in any two (2)
calendar year period with respect to any Real Property Asset); and (iii)
any
re-appraisals requested by any Borrower. The foregoing costs and expenses
shall
include all search, filing, recording, title insurance and appraisal charges
and
fees and taxes related thereto, and other reasonable and documented
out-of-pocket expenses incurred by the Administrative Agent and the reasonable
and documented cost of independent public accountants and other outside
experts
retained by the Administrative Agent or any Lender. All amounts due under
this
Section 10.04
shall be
payable within twenty (20) Business Days after written invoice therefor
is
received by the Borrowers. The agreements in this Section shall survive the
termination of the Aggregate Commitments and repayment of all other
Obligations.
10.05 Indemnification
by the Borrowers.
The
Borrowers shall indemnify and hold harmless each Agent-Related Person,
each
Lender and their respective Affiliates, directors, officers, employees,
counsel,
agents, trustees, advisors and attorneys-in-fact (collectively the “Indemnitees”)
from
and against any and all liabilities, obligations, losses, damages, penalties,
claims, litigation, investigation, proceeding, demands, actions, judgments,
suits, costs, expenses and disbursements (including Attorney Costs) of
any kind
or nature whatsoever (subject to the provisions of Section 3.01
with
respect to Taxes and Other Taxes) that may at any time be imposed on, incurred
by or asserted against any such Indemnitee (whether by a Credit Party or
any
other party) in any way relating to or arising out of or in connection
with (a)
the execution, delivery, enforcement, performance or administration of
any
Credit Document or any other agreement, letter or instrument delivered
in
connection with the transactions contemplated thereby or the consummation
of the
transactions contemplated thereby, or, in the case of the Administrative
Agent
(and any sub-agent thereof) and its Related Parties only, the administration
of
this Agreement and the other Credit Documents, (b) any Commitment, Loan
or
Letter of Credit or the use or proposed use of the proceeds therefrom (including
any refusal by the L/C Issuer 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), or (c) any actual or threatened
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory (including any investigation
of, preparation for, or defense of any pending or threatened claim,
investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the
“Indemnified
Liabilities”);
provided,
that
such indemnification shall not, as to any Indemnitee, be available to the
extent
that such liabilities, obligations, losses, damages, penalties, claims,
litigation, investigation, proceeding, demands, actions, judgments, suits,
costs, expenses or disbursements are determined to have resulted from the
gross
negligence or willful misconduct of any Indemnitee. No Indemnitee shall
be
liable for any damages arising from the use by others of any information
or
other materials obtained through IntraLinks or other similar information
transmission systems in connection with this Credit Agreement, and no Indemnitee
shall have any liability for any indirect or consequential damages relating
to
this Credit Agreement or any other Credit Document or arising out of its
activities in connection herewith or therewith (whether before or after
the
Closing Date). All amounts that may become due under this Section 10.05
shall be
payable within twenty (20) Business Days after written invoice therefor
is
received by the Borrowers. The agreements in this Section 10.05
shall
survive the resignation of the Administrative Agent, the assignment by
any
Lender of any of its interests hereunder, the replacement of any Lender,
the
termination of the Aggregate Commitments and the repayment, satisfaction
or
discharge of all the other Obligations.
10.06 Payments
Set Aside.
To
the
extent that any payment by or on behalf of the Borrowers is made to the
Administrative Agent or any Lender, or the Administrative Agent or any
Lender
exercises its right of set-off, and such payment or the proceeds of such
set-off
or any part thereof is subsequently invalidated, declared to be fraudulent
or
preferential, set aside or required (including pursuant to any settlement
entered into by the Administrative Agent or such Lender in its discretion)
to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent
of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if
such
payment had not been made or such set-off had not occurred, and (b) each
Lender
severally agrees to pay to the Administrative Agent upon demand its applicable
share of any amount so recovered from or repaid by the Administrative Agent,
plus interest thereon from the date of such demand to the date such payment
is
made at a rate per annum equal to the Federal Funds Rate from time to time
in
effect.
10.07 Successors
and Assigns.
(a) The
provisions of this Credit Agreement shall be binding upon and inure to
the
benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that no Borrower may assign or otherwise transfer
any
of its rights or obligations hereunder without the prior written consent
of each
Lender and no Lender may assign or otherwise transfer any of its rights
or
obligations hereunder except (i) to an Eligible Assignee in accordance
with the
provisions of subsection (b) of this Section, (ii) by way of participation
in accordance with the provisions of subsection (d) of this Section, or
(iii) by way of pledge or assignment of a security interest subject to
the
restrictions of subsection (f) or (i) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and
void).
Nothing in this Credit Agreement, expressed or implied, shall be construed
to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the extent provided
in
subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Indemnitees) any legal or equitable right, remedy
or
claim under or by reason of this Credit Agreement.
(b) Any
Lender may at any time assign to one or more Eligible Assignees all or
a portion
of its rights and obligations under this Credit Agreement (including all
or a
portion of its Commitment and the Loans (including for purposes of this
subsection (b), participations in L/C Obligations and in Swing Line Loans)
at the time owing to it); provided that (i) except in the case of an assignment
of the entire remaining amount of the assigning Lender’s Commitment and the
Loans at the time owing to it or in the case of an assignment to a Lender
or an
Affiliate of a Lender or an Approved Fund with respect to a Lender, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) 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 or, if “Trade Date” is specified in the Assignment
and Assumption, as of the Trade Date, shall not be less than $1,000,000
unless
each of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower Representative otherwise consents
(each
such consent not to be unreasonably withheld or delayed) provided,
however,
that
concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single Eligible Assignee
(or
to an Eligible Assignee and members of its Assignee Group) will be treated
as a
single assignment for purposes of determining whether such minimum amount
has
been met; (ii) each partial assignment shall be made as an assignment of
a
proportionate part of all the assigning Lender’s rights and obligations under
this Credit Agreement with respect to the Loans or the Commitment assigned,
except that this clause (ii) shall not apply to rights in respect of Swing
Line Loans; (iii) any assignment of a Commitment must be approved by the
Administrative Agent and, with respect to any assignment of a Revolving
Commitment, the L/C Issuer and the Swing Line Lender (each such consent
not to
be unreasonably withheld or delayed), unless the Person that is the proposed
assignee is itself a Lender (whether or not the proposed assignee would
otherwise qualify as an Eligible Assignee); and (iv) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Assumption, together with a processing and recordation fee in the amount,
if
any, required as set forth on Schedule
10.07
(for
which the applicable assignee shall be responsible in the absence of the
agreement of any other party to pay such fee). Subject to acceptance and
recording thereof by the Administrative Agent pursuant to subsection (c) of
this Section, from and after the effective date specified in each Assignment
and
Assumption, the Eligible Assignee thereunder shall be a party to this Credit
Agreement and, to the extent of the interest assigned by such Assignment
and
Assumption, have the rights and obligations of a Lender under this Credit
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 Credit Agreement (and, in the case of an Assignment
and
Assumption covering all of the assigning Lender’s rights and obligations under
this Credit Agreement, such Lender shall cease to be a party hereto but
shall
continue to be entitled to the benefits of Sections 3.01,
3.04,
3.05,
10.04
and
10.05
with
respect to facts and circumstances occurring prior to the effective date
of such
assignment). Upon request, the Borrowers (at their expense) shall execute
and
deliver a Note to the assignee Lender. Any assignment or transfer by a
Lender of
rights or obligations under this Credit Agreement that does not comply
with this
subsection shall be treated for purposes of this Credit Agreement as a
sale by
such Lender of a participation in such rights and obligations in accordance
with
subsection (d) of this Section.
(c) The
Administrative Agent, acting solely for this purpose as an agent of the
Borrowers, shall maintain at the Administrative Agent’s Office 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 Commitments of, and principal
amounts of the Loans and L/C Obligations 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 Borrowers, the
Administrative Agent 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 Representative
at any
reasonable time and from time to time upon reasonable prior notice. In
addition,
at any time that a request for a consent for a material or other substantive
change to the Credit Documents is pending, any Lender wishing to consult
with
other Lenders in connection therewith may request and receive from the
Administrative Agent a copy of the Register.
(d) Any
Lender may at any time, without the consent of, or notice to, the Borrowers
or
the Administrative Agent, sell participations to any Person (other than
a
natural person or the Borrowers or any of the Borrowers’ Affiliates or
Subsidiaries) (each, a “Participant”)
in all
or a portion of such Lender’s rights and/or obligations under this Credit
Agreement (including all or a portion of its Commitment and/or the Loans
(including such Lender’s participations in L/C Obligations and/or Swing Line
Loans) owing to it); provided that (i) such Lender’s obligations under this
Credit Agreement shall remain unchanged, (ii) such Lender shall remain
solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrowers, the Administrative Agent 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 Credit Agreement. 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 Credit Agreement
and to approve any amendment, modification or waiver of any provision of
this
Credit Agreement; provided that such agreement or instrument may provide
that
such Lender will not, without the consent of the Participant, agree to
any
amendment, waiver or other modification that extends the time for, reduces
the
amount or alters the application of proceeds with respect to such obligations
and payments required therein that directly affects such Participant. Subject
to
subsection (e) of this Section, the Borrowers agree that each Participant
shall be entitled to the benefits of Sections 3.01,
3.04
and
3.05
to the
same extent as if it were a Lender and had acquired its interest by assignment
pursuant to subsection (b) of this Section. To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 10.09
as
though it were a Lender, provided such Participant agrees to be subject
to
Section 2.12
as
though it were a Lender.
(e) A
Participant shall not be entitled to receive any greater payment under
Section 3.01
or
3.04
than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section 3.01
unless
the Borrower Representative is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrowers,
to
comply with Section 10.15
as
though it were a Lender.
(f) Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Credit Agreement (including under its
Note, if
any) to secure obligations of such Lender, including any pledge or assignment
to
secure obligations to a Federal Reserve Bank; provided that no such pledge
or
assignment shall release such Lender from any of its obligations hereunder
or
substitute any such pledgee or assignee for such Lender as a party
hereto.
(g) Notwithstanding
anything to the contrary contained herein, any Lender that is a Fund may
(without notice to or the consent of any of the parties hereto) create
a
security interest in all or any portion of the Loans owing to it and the
Note,
if any, held by it to the trustee for holders of obligations owed, or securities
issued, by such Fund as security for such obligations or securities, provided
that unless and until such trustee actually becomes a Lender in compliance
with
the other provisions of this Section 10.07,
(i) no
such pledge shall release the pledging Lender from any of its obligations
under
the Credit Documents and (ii) such trustee shall not be entitled to exercise
any
of the rights of a Lender under the Credit Documents even though such trustee
may have acquired ownership rights with respect to the pledged interest
through
foreclosure or otherwise.
(h) Notwithstanding
anything to the contrary contained herein, if at any time Bank of America
assigns all of its Commitment and Loans pursuant to subsection (b) above,
Bank of America may, (i) upon thirty (30) days’ notice to the Borrower
Representative and the Lenders, resign as L/C Issuer and/or (ii) upon
thirty (30) days’ notice to the Borrower Representative, resign as Swing
Line Lender. In the event of any such resignation as L/C Issuer or Swing
Line
Lender, the Borrower Representative shall be entitled to appoint from among
the
Lenders a successor L/C Issuer or Swing Line Lender hereunder (with the
consent
of the Lender so-appointed); provided, however, that no failure by the
Borrower
Representative to appoint any such successor shall affect the resignation
of
Bank of America as L/C Issuer or Swing Line Lender, as the case may be.
If Bank
of America resigns as L/C Issuer, it shall retain all the rights and obligations
of the L/C Issuer hereunder with respect to all Letters of Credit outstanding
as
of the effective date of its resignation as L/C Issuer and all L/C Obligations
with respect thereto (including the right to require the Lenders to make
Revolving Loans that are Base Rate Loans or fund risk participations in
Unreimbursed Amounts pursuant to Section 2.03(c)).
If
Bank of America resigns as Swing Line Lender, it shall retain all the rights
of
the Swing Line Lender provided for hereunder with respect to Swing Line
Loans
made by it and outstanding as of the effective date of such resignation,
including the right to require the Lenders to make Revolving Loans that
are Base
Rate Loans or fund risk participations in outstanding Swing Line Loans
pursuant
to Section 2.04(c).
10.08 Confidentiality.
Each
of
the Administrative Agent and the Lenders agrees to maintain the confidentiality
of Confidential Information, except that Confidential 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 Confidential Information and instructed
to keep
such Confidential Information confidential); (b) to the extent requested
by any
regulatory authority; (c) to the extent required by applicable Law or
regulations or by any subpoena or similar legal process; (d) to any other
party
to this Credit Agreement; (e) in connection with the exercise of any remedies
hereunder or any suit, action or proceeding relating to this Credit Agreement
or
the enforcement of rights hereunder (it being understood that the Persons
to
whom such disclosure is made will be informed of the confidential nature
of such
Confidential Information and instructed to keep such Confidential Information
confidential); (f) subject to an agreement containing provisions substantially
the same as those of this Section, to (i) any Eligible Assignee of or
Participant in, or any prospective Eligible Assignee of or Participant
in, any
of its rights or obligations under this Credit Agreement or (ii) any direct
or
indirect contractual counterparty or prospective counterparty (or such
contractual counterparty’s or prospective counterparty’s professional advisor)
to any credit derivative transaction relating to obligations of the Credit
Parties; (g) with the consent of the Borrower Representative; (h) to the
extent
such Confidential Information (i) becomes publicly available other than
as a
result of a breach of this Section or (ii) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Borrowers; (i) to the National Association of Insurance
Commissioners or any other similar organization (it being understood that
the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Confidential Information and instructed to keep such Confidential
Information confidential); or (j) to any nationally recognized rating agency
that requires access to a Lender’s or an Affiliate’s investment portfolio in
connection with ratings issued with respect to such Lender or Affiliate.
In
addition, the Administrative Agent and the Lenders may disclose the existence
of
this Credit Agreement and information about this Credit Agreement to market
data
collectors, similar service providers to the lending industry, and service
providers to the Administrative Agent and the Lenders in connection with
the
administration and management of this Credit Agreement, the other Credit
Documents, the Commitments, and the Extension of Credits. Any Person required
to
maintain the confidentiality of Confidential 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 Confidential Information as such Person would accord
to
its own confidential information. For the purposes of this Section,
“Confidential
Information”
means
all information received from any Credit Party relating to any Credit Party,
any
of the other Consolidated Parties, or its or their business, other than
any such
information that is available to the Administrative Agent or any Lender
on a
nonconfidential basis prior to disclosure by any Credit Party; provided,
that,
in the case of information received from a Credit Party after the date
hereof,
such information is clearly identified in writing at the time of delivery
as
confidential.
Each
of
the Administrative Agent, the Lenders and the L/C Issuer acknowledges that
(a)
the Confidential Information may include material non-public information
concerning the Borrowers or a Subsidiary, as the case may be, (b) it has
developed compliance procedures regarding the use of material non-public
information and (c) it will handle such material non-public information
in
accordance with applicable Law, including Federal and state securities
Laws.
10.09 Set-off.
In
addition to any rights and remedies of the Lenders provided by law, upon
the
occurrence and during the continuance of any Event of Default, each Lender
and
each of its Affiliates are authorized at any time and from time to time,
without
prior notice to the Borrowers or any other Credit Party, any such notice
being
waived by the Borrowers (on their own behalf and on behalf of each Credit
Party)
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 by, and other indebtedness at any time owing by, such Lender or Affiliate
to or for the credit or the account of the respective Credit Parties against
any
and all Obligations owing to such Lender hereunder or under any other Credit
Document, now or hereafter existing, irrespective of whether or not the
Administrative Agent or such Lender shall have made demand under this Credit
Agreement or any other Credit Document and although such Obligations may
be
contingent or unmatured or denominated in a currency different from that
of the
applicable deposit or indebtedness. Each Lender agrees promptly to notify
the
Borrowers and the Administrative Agent after any such set-off and application
made by such Lender; provided, however, that the failure to give such notice
shall not affect the validity of such set-off and application.
10.10 Interest
Rate Limitation.
Notwithstanding
anything to the contrary contained in any Credit Document, the interest
paid or
agreed to be paid under the Credit Documents shall not exceed the maximum
rate
of non-usurious interest permitted by applicable Law (the “Maximum
Rate”).
If
the Administrative Agent or any Lender shall receive interest in an amount
that
exceeds the Maximum Rate, the excess interest shall be applied to the principal
of the Loans or, if it exceeds such unpaid principal, refunded to the Borrowers.
In determining whether the interest contracted for, charged, or received
by the
Administrative Agent or a Lender exceeds the Maximum Rate, such Person
may, to
the extent permitted by applicable Law, (a) characterize any payment that
is not
principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations hereunder.
10.11 Counterparts.
This
Credit Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute
one and
the same instrument.
10.12 Integration.
This
Credit Agreement, together with the other Credit Documents, comprises the
complete and integrated agreement of the parties on the subject matter
hereof
and thereof and supersedes all prior agreements, written or oral, on such
subject matter. In the event of any conflict between the provisions of
this
Credit Agreement and those of any other Credit Document, the provisions
of this
Credit Agreement shall control; provided that the inclusion of specific
supplemental rights or remedies in favor of the Administrative Agent or
the
Lenders in any other Credit Document shall not be deemed a conflict with
this
Credit Agreement. Each Credit Document was drafted with the joint participation
of the respective parties thereto and shall be construed neither against
nor in
favor of any party, but rather in accordance with the fair meaning
thereof.
10.13 Survival
of Representations and Warranties.
All
representations and warranties made hereunder and in any other Credit Document
or other document delivered pursuant hereto or thereto or in connection
herewith
or therewith shall survive the execution and delivery hereof and thereof.
Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made
by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge
of
any Default or Event of Default at the time of any Extension of Credit,
and
shall continue in full force and effect as long as any Loan or any other
Obligation hereunder shall remain unpaid or unsatisfied or any Letter of
Credit
shall remain outstanding.
10.14 Severability.
If
any
provision of this Credit Agreement or the other Credit Documents is held
to be
illegal, invalid or unenforceable, (a) the legality, validity and enforceability
of the remaining provisions of this Credit Agreement and the other Credit
Documents shall not be affected or impaired thereby and (b) the parties
shall
endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction
shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
10.15 Tax
Forms.
(a) (i)
Each
Lender that is not a “United States person” within the meaning of
Section 7701(a)(30) of the Internal Revenue Code (a “Foreign
Lender”)
shall
deliver to the Administrative Agent, prior to receipt of any payment subject
to
withholding under the Internal Revenue Code (or upon accepting an assignment
of
an interest herein), two duly signed completed copies of either IRS
Form W-8BEN or any successor thereto (relating to such Foreign Lender and
entitling it to an exemption from, or reduction of, withholding tax on
all
payments to be made to such Foreign Lender by the Borrowers pursuant to
this
Credit Agreement) or IRS Form W-8ECI or any successor thereto (relating to
all payments to be made to such Foreign Lender by the Borrowers pursuant
to this
Credit Agreement) or such other evidence satisfactory to the Borrowers
and the
Administrative Agent that such Foreign Lender is entitled to an exemption
from,
or reduction of, U.S. withholding tax, including any exemption pursuant
to
Section 881(c) of the Internal Revenue Code. Thereafter and from time to
time, each such Foreign Lender shall (A) promptly submit to the Administrative
Agent such additional duly completed and signed copies of one of such forms
(or
such successor forms as shall be adopted from time to time by the relevant
United States taxing authorities) as may then be available under then current
United States laws and regulations to avoid, or such evidence as is satisfactory
to the Borrowers and the Administrative Agent of any available exemption
from or
reduction of, United States withholding taxes in respect of all payments
to be
made to such Foreign Lender by the Borrowers pursuant to this Credit Agreement,
(B) promptly notify the Administrative Agent of any change in circumstances
that
would modify or render invalid any claimed exemption or reduction, and
(C) take
such steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including
the
re-designation of its Lending Office) to avoid any requirement of applicable
Law
that the Borrowers make any deduction or withholding for taxes from amounts
payable to such Foreign Lender.
(ii) Each
Foreign Lender, to the extent it does not act or ceases to act for its
own
account with respect to any portion of any sums paid or payable to such
Lender
under any of the Credit Documents (for example, in the case of a typical
participation by such Lender), shall deliver to the Administrative Agent
on the
date when such Foreign Lender ceases to act for its own account with respect
to
any portion of any such sums paid or payable, and at such other times as
may be
necessary in the determination of the Administrative Agent (in the reasonable
exercise of its discretion), (A) two duly signed completed copies of the
forms
or statements required to be provided by such Lender as set forth above,
to
establish the portion of any such sums paid or payable with respect to
which
such Lender acts for its own account that is not subject to U.S. withholding
tax, and (B) two duly signed completed copies of IRS Form W-8IMY (or any
successor thereto), together with any information such Lender chooses to
transmit with such form, and any other certificate or statement of exemption
required under the Internal Revenue Code, to establish that such Lender
is not
acting for its own account with respect to a portion of any such sums payable
to
such Lender.
(iii) The
Borrowers shall not be required to pay any additional amount to any Foreign
Lender under Section 3.01
(A) with
respect to any Taxes required to be deducted or withheld on the basis of
the
information, certificates or statements of exemption such Lender transmits
with
an IRS Form W-8IMY pursuant to this Section 10.15(a)
or (B)
if such Lender shall have failed to satisfy the foregoing provisions of
this
Section 10.15(a);
provided that if such Lender shall have satisfied the requirement of this
Section 10.15(a)
on the
date such Lender became a Lender or ceased to act for its own account with
respect to any payment under any of the Credit Documents, nothing in this
Section 10.15(a)
shall
relieve the Borrowers of their obligation to pay any amounts pursuant to
Section 3.01
in the
event that, as a result of any change in any applicable Law, treaty or
governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent
date
establishing the fact that such Lender or other Person for the account
of which
such Lender receives any sums payable under any of the Credit Documents
is not
subject to withholding or is subject to withholding at a reduced
rate.
(iv) The
Administrative Agent may, without reduction, withhold any Taxes required
to be
deducted and withheld from any payment under any of the Credit Documents
with
respect to which the Borrowers are not required to pay additional amounts
under
this Section 10.15(a).
(b) Upon
the
request of the Administrative Agent, each Lender that is a “United States
person” within the meaning of Section 7701(a)(30) of the Internal Revenue
Code shall deliver to the Administrative Agent two duly signed completed
copies
of IRS Form W-9. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to such Lender
an
amount equivalent to the applicable back-up withholding tax imposed by
the
Internal Revenue Code, without reduction.
(c) If
any
Governmental Authority asserts that the Administrative Agent did not properly
withhold or backup withhold, as the case may be, any tax or other amount
from
payments made to or for the account of any Lender, such Lender shall indemnify
the Administrative Agent therefor, including all penalties and interest,
any
taxes imposed by any jurisdiction on the amounts payable to the Administrative
Agent under this Section, and costs and expenses (including Attorney Costs)
of
the Administrative Agent. The obligation of the Lenders under this
Section shall survive the termination of the Aggregate Commitments,
repayment of all other Obligations hereunder and the resignation of the
Administrative Agent.
10.16 Replacement
of Lenders.
To
the
extent that Section
3.06(b)
provides
that the Borrowers shall have the right to replace a Lender as a party
to this
Credit Agreement, the Borrowers may, upon notice to such Lender and the
Administrative Agent, replace such Lender by causing such Lender to assign
its
Commitment (with the related assignment fee to be paid by the Borrowers)
pursuant to Section 10.07(b)
to one
or more Eligible Assignees procured by the Borrowers; provided, however,
that if
the Borrowers elect to exercise such right with respect to any Lender pursuant
to such Section 3.06(b),
they
shall be obligated to replace all Lenders that have made similar requests
for
compensation pursuant to Section 3.01
or
3.04.
The
Borrowers shall pay in full all principal, interest, fees and other amounts
owing to such Lender through the date of replacement (including any amounts
payable pursuant to Section 3.05).
Any
Lender being replaced shall execute and deliver an Assignment and Assumption
with respect to such Lender’s Commitment and outstanding Loans and
participations in L/C Obligations and Swing Line Loans.
10.17 No
Advisory or Fiduciary Responsibility.
In
connection with all aspects of each transaction contemplated hereby, the
Borrowers each acknowledge and agree, and acknowledge their respective
Affiliates’ understanding, that: (a) the credit facility provided for hereunder
and any related arranging or other services in connection therewith (including
in connection with any amendment, waiver or other modification hereof or
of any
other Credit Document) are an arm’s-length commercial transaction between the
Borrowers and their respective Affiliates, on the one hand, and the
Administrative Agent and the Arranger, on the other hand, and each Borrower
is
capable of evaluating and understanding and understands and accepts the
terms,
risks and conditions of the transactions contemplated hereby and by the
other
Credit Documents (including any amendment, waiver or other modification
hereof
or thereof); (b) in connection with the process leading to such transaction,
the
Administrative Agent and the Arranger each is and has been acting solely
as a
principal and is not the financial advisor, agent or fiduciary, for the
Borrowers or any of their respective Affiliates, stockholders, creditors
or
employees or any other Person; (c) neither the Administrative Agent nor
the
Arranger has assumed or will assume an advisory, agency or fiduciary
responsibility in favor of the Borrowers with respect to any of the transactions
contemplated hereby or the process leading thereto, including with respect
to
any amendment, waiver or other modification hereof or of any other Credit
Document (irrespective of whether the Administrative Agent or the Arranger
has
advised or is currently advising the Borrowers or any of their respective
Affiliates on other matters) and neither the Administrative Agent nor the
Arranger has any obligation to the Borrowers or any of their respective
Affiliates with respect to the transactions contemplated hereby except
those
obligations expressly set forth herein and in the other Credit Documents;
(d)
the Administrative Agent and the Arranger and their respective Affiliates
may be
engaged in a broad range of transactions that involve interests that differ
from
those of the Borrowers and their respective Affiliates, and neither the
Administrative Agent nor the Arranger has any obligation to disclose any
of such
interests by virtue of any advisory, agency or fiduciary relationship;
and (e)
the Administrative Agent and the Arranger have not provided and will not
provide
any legal, accounting, regulatory or tax advice with respect to any of
the
transactions contemplated hereby (including any amendment, waiver or other
modification hereof or of any other Credit Document) and each Borrower
has
consulted its own legal, accounting, regulatory and tax advisors to the
extent
it has deemed appropriate. Each Borrower hereby waives and releases, to
the
fullest extent permitted by law, any claims that it may have against the
Administrative Agent and the Arranger with respect to any breach or alleged
breach of agency or fiduciary duty.
10.18 Source
of Funds.
Each
of
the Lenders hereby represents and warrants to the Borrowers that at least
one of
the following statements is an accurate representation as to the source
of funds
to be used by such Lender in connection with the financing
hereunder:
(a) no
part
of such funds constitutes assets allocated to any separate account maintained
by
such Lender in which any employee benefit plan (or its related trust) has
any
interest;
(b) to
the
extent that any part of such funds constitutes assets allocated to any
separate
account maintained by such Lender, such Lender has disclosed to the Borrowers
the name of each employee benefit plan whose assets in such account exceed
ten
percent (10%) of the total assets of such account as of the date of such
purchase (and, for purposes of this subsection (b), all employee benefit
plans maintained by the same employer or employee organization are deemed
to be
a single plan);
(c) to
the
extent that any part of such funds constitutes assets of an insurance company’s
general account, such insurance company has complied with all of the
requirements of the regulations issued under Section 401(c)(1)(A) of ERISA;
or
(d) such
funds constitute assets of one or more specific benefit plans that such
Lender
has identified in writing to the Borrowers.
As
used
in this Section, the terms “employee benefit plan” and “separate account” shall
have the respective meanings provided in Section 3 of ERISA.
10.19 GOVERNING
LAW.
(a) THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW
OF THE
STATE OF NEW YORK APPLICABLE
TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES;
PROVIDED THAT THE ADMINISTRATIVE
AGENT
AND EACH
LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY
LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK
CITY
OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWERS, THE
ADMINISTRATIVE
AGENT
AND EACH
LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. THE BORROWERS, THE ADMINISTRATIVE AGENT
AND EACH
LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING
OF VENUE OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS,
WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING
IN SUCH
JURISDICTION IN RESPECT OF ANY CREDIT DOCUMENT OR OTHER DOCUMENT RELATED
THERETO. THE BORROWERS, THE ADMINISTRATIVE
AGENT
AND EACH
LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS,
WHICH
MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
10.20 WAIVER
OF RIGHT TO TRIAL BY JURY.
EACH
PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY
OF
ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY CREDIT DOCUMENT
OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF
THE
PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY CREDIT DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH
PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE
OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY
TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.21 No
Conflict.
To
the
extent there is any conflict or inconsistency between the provisions hereof
and
the provisions of any other Credit Document, this Credit Agreement shall
control.
10.22 USA
Patriot Act Notice.
Each
Lender and the Administrative Agent (for itself and not on behalf of any
Lender)
hereby notifies the Borrowers that pursuant to the requirements of the
USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”),
it is
required to obtain, verify and record information that identifies the Borrowers
(and to the extent applicable, the Parent), which information includes
the name
and address of the respective Borrowers (and to the extent applicable,
the
Parent) and other information that will allow such Lender or the Administrative
Agent, as applicable, to identify the Borrowers (and to the extent applicable,
the Parent) in accordance with the Act.
10.23 Entire
Agreement.
THIS
CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS REPRESENT THE FINAL AGREEMENT
AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
10.24 California
Real Property Assets.
NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED HEREIN, AT ANY TIME THAT ANY OF THE
OBLIGATIONS SHALL BE SECURED BY REAL PROPERTY ASSETS LOCATED IN CALIFORNIA,
NO
LENDER SHALL EXERCISE A RIGHT OF SETOFF, LENDER'S LIEN OR COUNTERCLAIM
OR TAKE
ANY COURT OR ADMINISTRATIVE ACTION OR INSTITUTE ANY PROCEEDING TO ENFORCE
ANY
PROVISION OF THIS AGREEMENT OR ANY CREDIT DOCUMENT UNLESS IT IS TAKEN WITH
THE
CONSENT OF THE REQUIRED LENDERS OR, TO THE EXTENT REQUIRED BY SECTION 8.3
OF
THIS AGREEMENT, ALL OF THE LENDERS, IF SUCH SETOFF OR ACTION OR PROCEEDING
WOULD
OR MIGHT (PURSUANT TO SECTIONS 580a, 580b, 580d AND 726 OF THE CALIFORNIA
CODE
OF CIVIL PROCEDURE OR SECTION 2924 OF THE CALIFORNIA CIVIL CODE, IF APPLICABLE,
OR OTHERWISE) AFFECT OR IMPAIR THE VALIDITY, PRIORITY, OR ENFORCEABILITY
OF THE
LIENS GRANTED TO THE AGENT PURSUANT TO THE COLLATERAL DOCUMENTS OR THE
ENFORCEABILITY OF THE OBLIGATIONS HEREUNDER, AND ANY ATTEMPTED EXERCISE
BY ANY
LENDER OR ANY SUCH RIGHT WITHOUT OBTAINING SUCH CONSENT OF THE PARTIES
AS
REQUIRED ABOVE, SHALL BE NULL AND VOID. THIS PARAGRAPH SHALL BE SOLELY
FOR THE
BENEFIT OF EACH OF THE LENDERS.
10.25 2004
Facility Assignment Agreement.
Each
Lender hereunder hereby authorizes and directs the Administrative Agent,
on
behalf of each such Lender, to, on the Closing Date, enter into the 2004
Facility Assignment Agreement, substantially in the form of Exhibit
I
hereto,
among 2004 Facility Lenders and the 2004 Administrative Agent, which agreement
shall provide, among other things, for the assignment all of the 2004 Facility
Lenders’ rights, titles and interests in and to the 2004 Credit Facility and the
2004 Collateral Documents in favor of the Administrative Agent hereunder,
on
behalf of the Lenders hereunder and such other actions on its behalf as
is
contemplated by the terms of such 2004 Facility Assignment
Agreement.
[REMAINDER
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SIGNATURE
PAGES AND SCHEDULES AND EXHIBITS TO FOLLOW]
IN
WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to
be duly
executed as of the date first above written.
BORROWERS: OHI
ASSET, LLC
OHI
ASSET
(ID), LLC
OHI
ASSET
(LA), LLC
OHI
ASSET
(TX), LLC
OHI
ASSET
(CA), LLC
DELTA
INVESTORS I, LLC
DELTA
INVESTORS II, LLC
By: Omega
Healthcare Investors, Inc.,
the
Sole
Member of each such company
By:/s/
Daniel J. Booth
Name: Daniel
J. Booth
Title:
Chief
Operating Officer
TEXAS
LESSOR - STONEGATE, LP
By: Texas
Lessor - Stonegate GP, Inc.,
Its
General Partner
By:/s/
Daniel J. Booth
Name: Daniel
J. Booth
Title:
Chief
Operating Officer
LENDERS: BANK
OF
AMERICA, N.A.,
as
Administrative Agent
By:/s/
Amie L. Edwards
Name:
Amie
L. Edwards
Title:
Vice
President
BANK
OF
AMERICA, N.A.,
as L/C
Issuer, Swing Line Lender and as a Lender
By:/s/
Amie L. edwards
Name:
Amie
L. Edwards
Title:
Vice
President
UBS
LOAN
FINANCE LLC
as
a
Lender
By:/s/
Joselin Frenandes
Name:
Joselin
Fernandes
Title:
Associate
Director
By:/s/
Sailoz Sikka
Name:
Sailoz
Sikka
Title:
Associate
Director
DEUTSCHE
BANK TRUST COMPANY AMERICAS, as a Lender
By:/s/
Diane Rolfe
Name:
Diane
Rolfe
Title:
Director
By:/s/
Anca Trifan
Name:
Anca
Trifan
Title:
Director
GENERAL
ELECTRIC CAPTIAL CORPORATION,
as
a
Lender
By:/s/
Jeff Erhardt
Name:
Jeff
Erhardt
Title:
Authorized
Signatory
LASALLE
BANK, N.A.,
as
a
Lender
By:/s/
Geraldine Rudig
Name:
Geraldine
Rudig
Title:
Senior
Vice President
CITICORP
NORTH AMERICA, INC.,
as
a
Lender
By:/s/
Jeanne M. Craig
Name:
Jeanne
M. Craig
Title:
Vice
President
OMEGA
HEALTHCARE ANNOUNCES CLOSING OF NEW $200 MILLION
CREDIT
FACILITY
TIMONIUM,
MARYLAND - April 4, 2006 - Omega Healthcare Investors, Inc. (NYSE:OHI) today
announced
the closing of a new $200 million revolving senior secured credit facility
(the
“New Credit Facility”) on March 31, 2006.
The
New
Credit Facility is being provided by Bank of America, N.A., as Administrative
Agent, Deutsche Bank Trust Company Americas, UBS Securities LLC, General
Electric Capital Corporation, LaSalle Bank N.A., and Citicorp North America,
Inc. and will be used for acquisitions and general corporate
purposes.
The
New
Credit Facility replaces Omega’s previous $200 million senior secured credit
facility, which has been terminated. Omega will realize a 125 basis point
savings on LIBOR-based loans under the New Credit Facility, as compared to
LIBOR-based loans under its prior credit facility. The New Credit Facility
matures in four years, on March 31, 2010, and includes an “accordion feature”
that permits Omega to expand its borrowing capacity to $300 million during
its
first two years.
For
the
three-month period ending March 31, 2006, Omega will record a one-time, non-cash
charge of approximately $2.7 million relating to the write-off of deferred
financing costs associated with the termination of its prior credit facility.
At
March 31, 2006, Omega had $4.5 million of borrowings outstanding under the
New
Credit Facility.
Omega
is
a real estate investment trust investing in and providing financing to the
long-term care industry. At December 31, 2005, Omega owned or held mortgages
on
227 SNFs and ALFs with approximately 24,476 beds located in 27 states and
operated by 35 third-party healthcare operating companies.
FOR
FURTHER INFORMATION, CONTACT
Bob
Stephenson, CFO or Dan Booth, COO
at
(410)
427-1700
________________________
This
announcement includes forward-looking statements. Actual results may differ
materially from those reflected in such forward-looking statements as a result
of a variety of factors,
including, among other things: (i) uncertainties relating to the business
operations of the operators of the Omega’s properties, including those relating
to reimbursement by third-party payors, regulatory matters and occupancy
levels;
(ii) regulatory and other changes in the healthcare sector, including without
limitation, changes in Medicare reimbursement; (iii) changes in the financial
position of Omega’s operators; (iv) the ability of operators in bankruptcy to
reject unexpired lease obligations, modify the terms of Omega’s mortgages, and
impede the ability of Omega to collect unpaid rent or interest during the
pendency of a bankruptcy proceeding and retain security deposits for the
debtor's obligations; (v) the availability and cost of capital; (vi) competition
in the financing of healthcare facilities; and (vii) other factors identified
in
Omega’s filings with the Securities and Exchange
Commission. Statements
regarding future events and developments and Omega’s future performance, as well
as management's expectations, beliefs, plans, estimates or projections relating
to the future, are forward-looking statements. All
forward-looking statements included herein are based on current expectations
and
speak only as of the date of such statements. Omega undertakes no obligation
to
publicly update or revise any forward-looking
statement.