-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, Q7vMHv6zeWiK6qdjL7dlRO6JW1GgAFTqrLXMQk//a0Je0dnZ2buSfKjoTikxVFUd XY7goc2uvMLKQnB7XJTl4w== 0000765880-95-000010.txt : 19950515 0000765880-95-000010.hdr.sgml : 19950515 ACCESSION NUMBER: 0000765880-95-000010 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19950208 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 19950208 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: HEALTH CARE PROPERTY INVESTORS INC CENTRAL INDEX KEY: 0000765880 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 330091377 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-08895 FILM NUMBER: 95506606 BUSINESS ADDRESS: STREET 1: 10990 WILSHIRE BLVD STE 1200 CITY: LOS ANGELES STATE: CA ZIP: 90024 BUSINESS PHONE: 3104731990 8-K 1 As filed with the Securities and Exchange Commission on February 8, 1995 - --------------------------------------------------------------------------- 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): FEBRUARY 2, 1995 HEALTH CARE PROPERTY INVESTORS, INC. (Exact name of registrant as specified in its charter) MARYLAND 1-8895 33-0091377 (State or other jurisdiction (Commission (I.R.S. Employer of incorporation) File No.) Identification No.) 10990 WILSHIRE BOULEVARD, SUITE 1200 LOS ANGELES, CALIFORNIA 90024 (Address of principal executive offices) (Zip Code) ----------------- Registrant's telephone number, including area code (310) 473-1990 - --------------------------------------------------------------------------- An Exhibit Index is on page 4 of this report. Item 5. Other Events On July 29, 1993, Health Care Property Investors, Inc. (the "Company") filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (File No. 33-66676) (the "Registration Statement") relating to the registration under the Securities Act of 1933, as amended (the "Securities Act"), of an initial public offering price of up to $200,000,000 of common stock, par value $1.00 per share (the "Common Stock"), preferred stock, par value $1.00 per share, and unsecured debt securities of the Company, which Registration Statement was declared effective on August 19, 1993. On February 2, 1995, the Company entered into a purchase agreement (the "Purchase Agreement") with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Alex. Brown & Sons Incorporated and Dean Witter Reynolds Inc. (collectively, the "Underwriters") pursuant to which the Company agreed to issue and sell and the Underwriters agreed, subject to certain conditions, to purchase 1,500,000 shares of Common Stock of the Company at a purchase price to the Underwriters of $27.48 per share and to the public of $29.00 per share. The gross public offering price will be $43,500,000 and the proceeds to the Company will be $41,220,000 (before deducting expenses payable by the Company estimated at $300,000). The Company also granted to the Underwriters an option to purchase all or any part of up to an additional 225,000 shares solely to cover over-allotments, if any. The Underwriters notified the Company on February 6, 1995 that they will exercise the over-allotment option in full, which will increase the gross public offering price to $50,025,000 and the proceeds to the Company to $47,403,000 (before deducting expenses). The Purchase Agreement is attached hereto as Exhibit 1.5. In addition, a Statement re: Computation of Ratio of Earnings to Fixed Charges is attached hereto as Exhibit 12.2. Item 7. Financial Statements and Exhibits (c) Exhibits. The following Exhibits are filed as part of this Report and as Exhibits to the Registration Statement (File No. 33-66676). 1.5 Purchase Agreement dated as of February 2, 1995 among the Company, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Alex. Brown & Sons Incorporated and Dean Witter Reynolds Inc. 10.37 Revolving Credit Agreement dated as of March 31, 1994 among the Company, The Bank of New York, Wells Fargo Bank, Kredietbank N.V., The Long- Term Credit Bank of Japan, Ltd., NationsBank of Texas, N.A., Bank of Hawaii and Sanwa Bank California. 12.2 Statement re: Computation of Ratio of Earnings to Fixed Charges 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 hereunto duly authorized. HEALTH CARE PROPERTY INVESTORS, INC. Date: February 8, 1995 By: /s/JAMES G. REYNOLDS ------------------------------ Name: James G. Reynolds Title: Executive Vice President and Chief Financial Officer EXHIBIT INDEX Exhibit Page No. - ------- -------- 1.5 Purchase Agreement dated as of February 2, 1995 among the Company, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Alex. Brown & Sons Incorporated and Dean Witter Reynolds. 10.37 Revolving Credit Agreement dated as of March 31, 1994 among the Company, The Bank of New York, Wells Fargo Bank, Kredietbank N.V., The Long-Term Credit Bank of Japan, Ltd., NationsBank of Texas, N.A.,Bank of Hawaii and Sanwa Bank California. 12.2 Statement re: Computation of Ratio of Earnings to Fixed Charges EX-1 2 EXHIBIT 1.5 1,500,000 Shares HEALTH CARE PROPERTY INVESTORS, INC. (a Maryland corporation) Common Stock (Par Value $1.00 Per Share) PURCHASE AGREEMENT ------------------ February 2, 1995 MERRILL LYNCH & CO. Merrill Lynch, Pierce Fenner & Smith Incorporated ALEX. BROWN & SONS INCORPORATED DEAN WITTER REYNOLDS INC. c/o MERRILL LYNCH & CO. Merrill Lynch, Pierce, Fenner & Smith Incorporated 10900 Wilshire Boulevard Los Angeles, California 90024 Dear Sirs: Health Care Property Investors, Inc., a Maryland corporation (the "Company"), confirms its agreement with Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch"), Alex. Brown & Sons Incorporated and Dean Witter Reynolds Inc. (collectively, the "Underwriters"), with respect to the sale by the Company and the purchase by the Underwriters, acting severally and not jointly, of the respective numbers of shares of Common Stock, par value $1.00 per share, of the Company ("Common Stock") set forth in Schedule A hereto, and with respect to the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) hereof to purchase all or any part of 225,000 additional shares of Common Stock to cover over- allotments. The aforesaid 1,500,000 shares of Common Stock (the "Initial Securities") to be purchased by the Underwriters and all or any part of the shares of Common Stock subject to the option described in Section 2(b) hereof (the "Option Securities") are collectively hereinafter called the "Securities". The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (No. 33-66676) and a related preliminary prospectus for the registration under the Securities Act of 1933, as amended (the "1933 Act") of Common Stock, including the Securities, preferred stock, par value $1.00 per share, and debt securities (collectively, the "Registered Securities"), which registration statement has been declared effective by the Commission and copies of which have heretofore been delivered to you. Such Registration Statement, in the form in which it was declared effective, as amended through the date hereof, including all documents incorporated or deemed to be incorporated by reference therein through the date hereof, is hereinafter referred to as the "Registration Statement". The Company proposes to file with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission under the 1933 Act (the "1933 Act Regulations") the Prospectus Supplement (as defined in Section 3(i) hereof) relating to the Securities and the prospectus dated February 2, 1995 (the "Base Prospectus") relating to the Registered Securities, and has previously advised you of all further information (financial and other) with respect to the Company set forth therein. The Base Prospectus together with the Prospectus Supplement, in their respective forms on the date hereof (being the forms in which they are to be filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations), including all documents incorporated or deemed to be incorporated by reference therein through the date hereof, are hereinafter referred to as the "Prospectus", except that if any revised prospectus or prospectus supplement shall be provided to the Underwriters by the Company for use in connection with the offering and sale of the Securities which differs from the Prospectus (whether or not such revised prospectus or prospectus supplement is required to be filed by the Company pursuant to Rule 424(b) of the 1933 Act Regulations), the term "Prospectus" shall refer to such revised prospectus or prospectus supplement, as the case may be, from and after the time it is first provided to the Underwriters for such use. Unless the context otherwise requires, all references in this Agreement to documents, financial statements and schedules and other information which is "contained", "included", "stated", "described in" or "referred to" in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to mean and include all such documents, financial statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration Statement or the Prospectus, as the case may be; and all references in this Agreement to amendments or supplements to the Registration Statement or the Prospectus shall be deemed to mean and include the filing of any document under the Securities Exchange Act of 1934 (the "1934 Act") after the date of this Agreement which is or is deemed to be incorporated by reference in the Registration Statement or the Prospectus, as the case may be. The Company understands that the Underwriters propose to make a public offering of the Securities as soon as the Underwriters deem advisable after this 2 Agreement has been executed and delivered. Section 1. Representations and Warranties. (a) The Company represents and ------------------------------ warrants to each Underwriter as of the date hereof (such date being hereinafter referred to as the "Representation Date") as follows: (i) The Company meets the requirements for use of Form S-3 under the 1933 Act and the 1933 Act Regulations. The Registration Statement and the Base Prospectus, at the time the Registration Statement became effective and as of the Representation Date, complied and comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations (including Rule 415(a) of the 1933 Act Regulations), and did not and as of the Representation Date do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus, at the Representation Date (unless the term "Prospectus" refers to a prospectus which has been provided to the Underwriters by the Company for use in connection with the offering of the Securities which differs from the Prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, in which case at the time it is first provided to the Underwriters for such use) and at the Closing Time referred to in Section 2 hereof, does not and will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this subsection (i) shall not apply to statements in or omissions from the Registration Statement or Prospectus made in reliance upon and in conformity with information furnished to the Company in writing by any Underwriter through Merrill Lynch expressly for use in the Registration Statement or the Prospectus or to that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification of the Trustee under the Trust Indenture Act of 1939, as amended (the "1939 Act") filed as an exhibit to the Registration Statement (the "Form T-1"). (ii) The documents incorporated or deemed to be incorporated by reference into the Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1934 Act and the rules and regulations of the Commission thereunder (the "1934 Act Regulations"), and, when read together and with the other information in the Prospectus, at the respective times the Registration 3 Statement and any amendments thereto became effective, at the Representation Date and at Closing Time, did not, do not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (iii) The accountants who certified the financial statements and supporting schedules included or incorporated by reference in the Registration Statement are independent public accountants as required by the 1933 Act and the 1933 Act Regulations. (iv) The financial statements and any supporting schedules of the Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement and the Prospectus present fairly the financial position of the Company and its consolidated subsidiaries as at the dates indicated and the results of their operations for the periods specified; and, except as otherwise stated in the Registration Statement, said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis; and the supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein; and the Company's ratios of earnings to fixed charges included in the Base Prospectus under the caption "Ratio of Earnings to Fixed Charges" and in Exhibit 12 to the Registration Statement have been calculated in compliance with Item 503(d) of Regulation S-K of the Commission. (v) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (A) there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, (B) there have been no transactions entered into by the Company or any of its subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company and its subsidiaries considered as one enterprise, and (C) except for regular quarterly dividends on the Common Stock, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock. 4 (vi) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus; the Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify and be in good standing would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise; and the Company is in substantial compliance with all laws, ordinances and regulations of each state in which it owns properties that are material to the properties and business of the Company and its subsidiaries considered as one enterprise in such state. (vii) Each subsidiary of the Company which is a significant subsidiary (each, a "Significant Subsidiary") as defined in Rule 405 of Regulation C of the 1933 Act Regulations has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise; and all of the issued and outstanding capital stock of each such subsidiary has been duly authorized and validly issued, is fully paid and non- assessable and, except for directors' qualifying shares, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. (viii) The Company has at all times operated in such manner as to qualify as a "real estate investment trust" under the Internal Revenue Code of 1986, as amended (the "Code"), and intends to continue to operate in such manner. (ix) The authorized capital stock of the Company is as set forth in the Prospectus under "Capitalization" (except for subsequent issuances, if 5 any, pursuant to reservations, agreements or employee benefit plans referred to in the Prospectus); the shares of issued Common Stock have been duly authorized and validly issued and are fully paid and non-assessable; the Securities have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein, will be validly issued and fully paid and non-assessable; the Common Stock conforms to all statements relating thereto contained in the Prospectus; the issuance of the Securities is not subject to preemptive rights; and, after giving effect to the sale of the Securities and the sale of any other of the Registered Securities to be issued prior to the delivery of the Securities, the aggregate amount of Registered Securities which have been issued and sold by the Company will not exceed the aggregate amount of theretofore unsold Registered Securities. (x) Neither the Company nor any of its subsidiaries is in violation of its charter or by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any of its subsidiaries is subject, which default might result in a material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by all necessary corporate action and will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such action result in any violation of the provisions of the charter or by-laws of the Company or any applicable law, administrative regulation or administrative or court order or decree. (xi) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending, or, to 6 to the knowledge of the Company, threatened, against or affecting the Company or any of its subsidiaries, which is required to be disclosed in the Prospectus (other than as disclosed therein), or which might result in any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, or which might materially and adversely affect the properties or assets thereof or which might materially and adversely affect the consummation of this Agreement; all pending legal or governmental proceedings to which the Company or any of its subsidiaries is a party or of which any of their respective property or assets is the subject which are not described in the Prospectus, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material; and there are no contracts or documents of the Company or any of its subsidiaries which are required to be filed as exhibits to the Registration Statement by the 1933 Act or by the 1933 Act Regulations which have not been so filed. (xii) No authorization, approval, order, decree or consent of any court or governmental authority or agency is necessary in connection with the offering, issuance or sale of the Securities hereunder, except such as may be required under the 1933 Act or the 1933 Act Regulations or state securities laws. (xiii) This Agreement has been duly authorized, executed and delivered by the Company and, upon execution and delivery by the Underwriters, will be a valid and legally binding agreement of the Company. (xiv) The Company and its subsidiaries have good title to all real property or interests in real property described in the Prospectus as being owned by it or any of them, in each case free and clear of all liens, encumbrances and defects except such as are described in the Prospectus or such as do not materially adversely affect the value of such property and interests and do not interfere with the use made and proposed to be made of such property and interests by the Company and its subsidiaries; the Company and its subsidiaries have obtained satisfactory confirmations (consisting of policies of title insurance or commitments or binders therefor or opinions of counsel based upon the examination of abstracts) confirming, except as otherwise described in the Prospectus, (A) that the Company and its subsidiaries have the foregoing title to such real property and interests in real property, and (B) that the instruments securing the Company's and its subsidiaries' real estate mortgage loans create valid 7 liens upon the real properties described in such instruments enjoying the priorities intended, subject only to exceptions to title which do not materially adversely affect the value of such real properties and interests in relation to the Company and its subsidiaries considered as one enterprise; and all leases to which the Company is a lessee relating to real property are valid and binding and no default exists or is continuing thereunder, and the Company enjoys peaceful and undisturbed possession under all such leases to which it is a party as lessee. (xv) The Company is not required to be registered under the Investment Company Act of 1940, as amended (the "1940 Act"). (xvi) The Company has complied with, and is and will be in compliance with, the provisions of that certain Florida act relating to disclosure of doing business with Cuba, codified as Section 517.075 of the Florida statutes, and the rules and regulations thereunder (collectively, the "Cuba Act") or is exempt therefrom. (b) Any certificate signed by any officer of the Company and delivered to the Underwriters or to counsel for the Underwriters shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered thereby. Section 2. Sale and Delivery to Underwriters; Closing. ------------------------------------------ (a) On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Company, at $27.48 per share, the number of Initial Securities set forth in Schedule A hereto opposite the name of such Underwriter, plus any additional number of Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. (b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company hereby grants an option to the Underwriters, severally and not jointly, to purchase up to an additional 225,000 shares of Common Stock at the price per share set forth in paragraph (a) above. The option hereby granted will expire 30 days after the Representation Date, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Securities upon notice by the Underwriters to the Company setting forth the number of 8 Option Securities as to which the Underwriters are then exercising the option and the time, date and place of payment and delivery for such Option Securities. Any such time and date of delivery (a "Date of Delivery") shall be determined by the Underwriters, but shall not be later than seven full business days after the exercise of said option, nor in any event prior to Closing Time, as hereinafter defined, unless otherwise agreed upon by the Underwriters and the Company. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Securities set forth in Schedule A opposite the name of such Underwriter bears to the total number of Initial Securities, subject in each case to such adjustments as the Underwriters in their discretion shall make to eliminate any sales or purchases of fractional Securities. (c) Payment of the purchase price for, and delivery of certificates for, the Initial Securities shall be made at the office of Brown & Wood, 10900 Wilshire Boulevard, Los Angeles, California, or at such other place as shall be agreed upon by the Underwriters and the Company, at 8:00 A.M., Los Angeles time, on February 9, 1995 (unless postponed in accordance with the provisions of Section 10 hereof), or such other time not later than ten business days after such date as shall be agreed upon by the Underwriters and the Company (such time and date of payment and delivery being herein called "Closing Time"). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for and delivery of certificates for such Option Securities shall be made at the above-mentioned office of Brown & Wood, or at such other place as shall be mutually agreed upon by the Underwriters and the Company, on each Date of Delivery as specified in the notice from the Underwriters to the Company. Payment shall be made to the Company by certified or official bank check or checks drawn in Los Angeles Clearing House funds or similar next day funds payable to the order of the Company, against delivery to the Underwriters of certificates for the Securities to be purchased by them. Certificates for the Initial Securities and the Option Securities shall be in such denominations and registered in such names as the Underwriters may request in writing at least two business days before Closing Time or the relevant Date of Delivery, as the case may be. It is understood that each Underwriter other than Merrill Lynch has authorized Merrill Lynch, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Securities which it has agreed to purchase. Merrill Lynch, individually and not as representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Securities to be purchased by any Underwriter whose check has not been received by Closing 9 Time or the relevant Date of Delivery, as the case may be, but such payment shall not relieve such Underwriter from its obligations hereunder. The certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Underwriters not later than 10:00 A.M. on the last business day prior to Closing Time or the relevant Date of Delivery, as the case may be. Section 3. Covenants of the Company. The Company covenants with ------------------------ each Underwriter as follows: (a) The Company will notify the Underwriters immediately, and confirm the notice in writing, (i) of the effectiveness of any post-effective amendment to the Registration Statement, (ii) of the mailing or the delivery to the Commission for filing of the Prospectus or any amendment to the Registration Statement or amendment or supplement to the Prospectus or any document to be filed pursuant to the 1934 Act during any period when the Prospectus is required to be delivered under the 1933 Act, (iii) of the receipt of any comments or inquiries from the Commission relating to the Registration Statement or Prospectus, (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceeding for that purpose, and (vi) of the issuance by any state securities commission or other regulatory authority of any order suspending the qualification or the exemption from qualification of the Securities under state securities or Blue Sky laws or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance by the Commission of any stop order and, if any such stop order is issued, to obtain the lifting thereof at the earliest possible moment. (b) The Company will give the Underwriters notice of its intention to file or prepare any post-effective amendment to the Registration Statement or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities that differs from the prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations), will furnish the Underwriters with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case 10 may be, and will not file any such amendment or supplement or use any such prospectus to which the Underwriters or counsel for the Underwriters shall reasonably object. (c) The Company will deliver to the Underwriters as many copies of the manually executed Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith and documents incorporated or deemed to be incorporated by reference therein) as the Underwriters may reasonably request and will also deliver to each Underwriter a conformed copy of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated or deemed to be incorporated by reference therein but without exhibits filed therewith). (d) The Company will furnish to each Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder. (e) If any event shall occur as a result of which it is necessary, in the opinion of counsel for the Underwriters or counsel for the Company, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Company will forthwith amend or supplement the Prospectus (in form and substance satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, and the Company will furnish to the Underwriters a reasonable number of copies of such amendment or supplement. (f) The Company will endeavor, in cooperation with the Underwriters, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Underwriters may designate; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified. In each jurisdiction in which the Securities shall have been 11 so qualified, the Company will file such statements and reports as may be required by laws of such jurisdiction to continue such qualification in effect for as long as may be required for the distribution of the Securities. (g) The Company will make generally available to its security holders as soon as practicable, but not later than 60 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering the twelve month period beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Registration Statement. (h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus Supplement under "Use of Proceeds". (i) Immediately following the execution of this Agreement, the Company will prepare a prospectus supplement, dated the date hereof (the "Prospectus Supplement"), containing the terms of the Securities, the plan of distribution thereof and such other information as may be required by the 1933 Act or the 1933 Act Regulations or as the Underwriters and the Company deem appropriate, and will file or transmit for filing with the Commission in accordance with Rule 424(b) of the 1933 Act Regulations copies of the Prospectus (including such Prospectus Supplement). (j) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations. Section 4. Payment of Expenses. The Company will pay all expenses ------------------- incident to the performance of its obligations under this Agreement, including (i) the printing and filing of the Registration Statement as originally filed and of each amendment thereto, (ii) the preparation, issuance and delivery of the certificates for the Securities to the Underwriters, (iii) the fees and disbursements of the Company's counsel and accountants, (iv) the qualification of the Securities under securities laws in accordance with the provisions of Section 3(f) hereof, including filing fees and the reasonable fee and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation of a Supplemental Blue Sky Survey, (v) the printing and delivery to the Underwriters in quantities as hereinabove stated of copies of the Registration Statement as originally filed and of each amendment 12 thereto, of each preliminary prospectus and preliminary prospectus supplement and of the Prospectus and Prospectus Supplement and any amendments or supplements thereto, (vi) the printing and delivery to the Underwriters of copies of a Supplemental Blue Sky Survey, and (vii) the fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange. If this Agreement is cancelled or terminated by the Underwriters in accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their out-of-pocket expenses, including the reasonable fee and disbursements of counsel for the Underwriters. Section 5. Conditions of Underwriters' Obligations. The obligations of --------------------------------------- the Underwriters hereunder are subject to the accuracy of the representations and warranties of the Company herein contained, to the performance by the Company of its obligations hereunder, and to the following further conditions: (a) At Closing Time no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission. The Prospectus (including the Prospectus Supplement referred to in Section 3(i) hereof) shall have been filed or transmitted for filing with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations within the prescribed time period, and prior to Closing Time the Company shall have provided evidence satisfactory to the Underwriters of such timely filing or transmittal. (b) At Closing Time the Underwriters shall have received: (1) The favorable opinion, dated as of Closing Time, of Latham & Watkins, counsel for the Company, in form and scope satisfactory to counsel for the Underwriters, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus. 13 (iii) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus under "Capitalization" (except for subsequent issuances, if any, pursuant to reservations, agreements, dividend reinvestment plans or employee or director stock plans referred to in the Prospectus), and the shares of issued and outstanding Common Stock have been duly authorized and validly issued and are fully paid and non-assessable. (iv) The Securities have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein, will be validly issued and fully paid and non-assessable; and the issuance of such Securities is not subject to preemptive rights under the Charter or Bylaws of the Company or the Maryland General Corporation Law or, to the best of such counsel's knowledge, otherwise. (v) Each Significant Subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus; all of the issued shares of capital stock of each such subsidiary have been duly and validly authorized and issued, and are fully paid and non-assessable and, to the best of such counsel's knowledge, are owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. (vi) This Agreement has been duly authorized, executed and delivered by the Company. (vii) The Registration Statement is effective under the 1933 Act and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission. 14 (viii) At the time the Registration Statement became effective and at the Representation Date, the Registration Statement (other than the financial statements and other financial and statistical data and related schedules included or incorporated by reference therein, the documents incorporated by reference therein and the Form T-1, as to which no opinion need be rendered) appeared on its face to comply as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (ix) Each document filed pursuant to the 1934 Act and incorporated by reference in the Prospectus (other than the financial statements and other financial and statistical data and related schedules included or incorporated by reference therein, as to which no opinion need be rendered), at the time they were filed with the Commission appeared on its face to comply as to form in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations. (x) The Common Stock conforms to the description thereof contained in the Prospectus and the form of certificate used to evidence the Securities is in due and proper form. (xi) To the best of their knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Prospectus. (xii) No authorization, approval, consent, decree or order of any court or governmental authority or agency is required in connection with the sale of the Securities to the Underwriters, except such as have been obtained or rendered, as the case may be, or as may be required under the 1933 Act or the 1933 Act Regulations or state securities laws (including real estate syndication laws). (xiii) The execution and delivery of this Agreement and the performance of the obligations of the Company under this Agreement will not conflict with or result in a breach or violation of any material term or provision of, or constitute a default under, (i) that certain Indenture dated as of December 1, 1986 between the Company and The Bank of New York for 9 1/2% 15 Senior Notes due December 1, 1996; (ii) that certain Indenture dated as of February 15, 1988 between the Company and The Bank of New York for 9 7/8% Senior Notes due February 15, 1998; (iii) that certain Indenture dated as of April 1, 1989 between the Company and The Bank of New York for Debt Securities; (iv) that certain Amended and Restated Revolving Credit Agreement dated as of December 15, 1991, between the Company and The Bank of New York, NCNB National Bank of North Carolina, Commerzbank AG, Bank of Hawaii and Kredietbank NV, and (v) any other similar material debt instrument entered into by the Company subsequent to the date hereof, nor will such action result in any violation of the provisions of the charter or by-laws of the Company or to the best of such counsel's knowledge, result in any material violation of any statute or any order, rule or regulation applicable to the Company of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties, except no opinion need be rendered under federal securities laws except as expressly otherwise provided in this Section 5(b)(1), and no opinion need be rendered under state securities laws (including real estate syndication laws) or any antifraud laws. (xiv) The Company is not required to be registered under the 1940 Act. (2) The favorable opinion, dated as of Closing Time, of Latham & Watkins, counsel for the Company, in form and substance satisfactory to counsel for the Underwriters and subject to customary assumptions, limitations and exceptions acceptable to counsel for the Underwriters, to the effect that (i) the Company was organized in conformity with the requirements for qualification as a real estate investment trust and its proposed method of operation will enable it to meet the requirements for qualification and taxation as a real estate investment trust under the Code; and (ii) the information in the Prospectus Supplement under the caption "Federal Income Tax Considerations", to the extent that it constitutes matters of law, summaries of legal matters, 16 documents or proceedings, or legal conclusions, has been reviewed by them and is correct in all material respects. (3) The favorable opinion, dated as of Closing Time, of Edward J. Henning, Senior Legal Counsel and Corporate Secretary of the Company, to the effect that: (i) To the best of such counsel's knowledge and information, the Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which its ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise. (ii) To the best of such counsel's knowledge and information, each subsidiary of the Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which its ownership or lease of substantial properties or the conduct of its business requires such qualification, except where the failure to so qualify and be in good standing would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise. (iii) To the best of such counsel's knowledge and information, no material default exists in the due performance or observance by the Company or any of its subsidiaries of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument described or referred to in the Registration Statement or filed as an exhibit thereto or incorporated by reference therein which would have a material adverse effect on the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise. 17 (iv) To the best of such counsel's knowledge and information, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments or documents required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto and the descriptions thereof or references thereto are correct. (4) The favorable opinion, dated as of Closing Time, of Brown & Wood, counsel for the Underwriters, with respect to the matters set forth in (i), (iv), (vi), (vii), (viii) and (x) of subsection (b)(1) of this Section. (5) In giving their opinions required by subsections (b)(1) and (b)(4), respectively, of this Section, Latham & Watkins and Brown & Wood shall each additionally state that nothing has come to their attention that caused them to believe that the Registration Statement, at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, at the Representation Date (unless the term "Prospectus" refers to a prospectus which has been provided to the Underwriters by the Company for use in connection with the offering of the Securities which differs from the Prospectus on file at the Commission at the Representation Date, in which case at the time it is first provided to the Underwriters for such use) or at Closing Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Latham & Watkins and Brown & Wood may rely, to the extent recited therein, (A) as to all matters of fact, upon certificates and written statements of officers of the Company, (B) as to the qualification and good standing of the Company to do business in any state or jurisdiction, upon certificates of appropriate government officials and (C) as to matters involving the laws of the State of Maryland, upon the opinion of Ballard Spahr Andrews & Ingersoll, in form and scope satisfactory to counsel for the Underwriters. 18 (c) At Closing Time there shall not have been, since the date hereof or since the respective dates as of which information is given in the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and the Underwriters shall have received a certificate of the President or a Vice President of the Company and the chief financial or chief accounting officer of the Company, dated as of Closing Time, to the effect that (i) there has been no such material adverse change, (ii) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the best knowledge and information of such officer, threatened by the Commission. As used in this Section 5(c), the term "Prospectus" means the Prospectus in the form first used to confirm sales of the Securities. (d) At the time of execution of this Agreement, the Underwriters shall have received from Arthur Andersen LLP a letter, dated such date, in form and substance satisfactory to the Underwriters, and substantially in the same form as the draft letter previously delivered to and approved by the Underwriters. (e) At Closing Time the Underwriters shall have received from Arthur Andersen LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (d) of this Section, except that the specified date referred to therein shall be a date not more than five days prior to Closing Time. (f) At Closing Time the Securities shall have been duly listed, subject to notice of issuance, on the New York Stock Exchange. (g) At Closing Time and each Date of Delivery, if any, counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfilllment of any of the 19 conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters. (h) In the event the Underwriters exercise their option provided in Section 2 hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company hereunder shall be true and correct as of each Date of Delivery, and the Underwriters shall have received: (1) The favorable opinion of Latham & Watkins, counsel for the Company, in form and substance satisfactory to counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities and otherwise to the same effect as the opinion required by Sections 5(b)(1) and 5(b)(5) hereof. (2) The favorable opinion of Latham & Watkins, counsel for the Company, in form and substance satisfactory to counsel for the Underwriters, dated such Date of Delivery, reaffirming their opinion delivered at Closing Time pursuant to Section 5(b)(2) hereof. (3) The favorable opinion of Edward J. Henning, counsel for the Company, in form and substance satisfactory to counsel for the Underwriters, dated such Date of Delivery, reaffirming his opinion delivered at Closing Time pursuant to Section 5(b)(3) hereof. (4) The favorable opinion of Brown & Wood, counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities and otherwise to the same effect as the opinion required by Sections 5(b)(4) and 5(b)(5) hereof. (5) A certificate of the President or a Vice President of the Company and the chief financial or chief accounting officer of the Company, dated such Date of Delivery, confirming that the certificate delivered at Closing Time pursuant to Section 5(c) hereof remains true and correct as of such Date of Delivery. 20 (6) A letter from Arthur Andersen LLP, in form and substance satisfactory to the Underwriters, dated such Date of Delivery, substantially the same in scope and substance as the letter furnished to the Underwriters pursuant to Section 5(e) hereof except that the "specified date" in the letter furnished pursuant to this subsection shall be a date not more than five days prior to such Date of Delivery. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Underwriters by notifying the Company at any time at or prior to Closing Time, and such termination shall be without liability of any party to any other party except as provided in Section 4 hereof. Section 6. Indemnification. (a) The Company agrees to indemnify and hold --------------- harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act, as follows: (i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or any omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus, any preliminary prospectus supplement or the Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Company; and (iii) against any and all expense whatsoever, as incurred (including, subject to Section 6(c) hereof, the fees and disbursements of counsel chosen by Merrill Lynch), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or 21 proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that (A) this indemnity agreement shall not apply to any - -------- ------- loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through Merrill Lynch expressly for use in the Registration Statement (or any amendment thereto) or any preliminary prospectus, preliminary prospectus supplement or the Prospectus (or any amendment or supplement thereto), and (B) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus or preliminary prospectus supplement, this indemnity agreement shall not inure to the benefit of any Underwriter (or to the benefit of any person controlling such Underwriter within the meaning of Section 15 of the 1933 Act) to the extent that any such loss, liability, claim, damage or expense of such Underwriter or any person controlling such Underwriter results from the fact that such Underwriter sold Securities to a person to whom there was not sent or given by such Underwriter or on such Underwriter's behalf at or prior to the written confirmation of the sale of such Securities to such person, a copy of the Prospectus (as then amended or supplemented), if required by law to have been so delivered, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, liability, claim, damage or expense. (b) Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto) or any preliminary prospectus, preliminary prospectus supplement or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with information furnished to the Company by such Underwriter through Merrill Lynch expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus, preliminary prospectus supplement or the Prospectus (or any amendment or supplement thereto). 22 (c) Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability which it may have otherwise than on account of this indemnity agreement. An indemnifying party may participate at its own expense in the defense of any such action. In no event shall the indemnifying parties be liable for the fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. Section 7. Contribution. In order to provide for just and equitable ------------ contribution in circumstances in which the indemnity agreement provided for in Section 6 hereof is for any reason held to be unenforceable by the indemnified parties although applicable in accordance with it terms, the Company and the Underwriters shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by said indemnity agreement incurred by the Company and one or more of the Underwriters, as incurred, in such proportions that the Underwriters are responsible for that portion represented by the percentage that the underwriting discount appearing on the cover page of the Prospectus Supplement bears to the initial public offering price appearing thereon and the Company is responsible for the balance; provided, however, that no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For the purposes of this Section, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act shall have the same rights to contribution as such Underwriter and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act shall have the same rights to contribution as the Company. Section 8. Representations, Warranties and Agreements to Survive Delivery. -------------------------------------------------------------- All representations, warranties and agreements contained in this Agreement, or contained in certificates of officers of the Company submitted pursuant hereto or thereto, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or any controlling person, or by or on behalf of the Company, and shall survive delivery of the Securities to the Underwriters. 23 Section 9. Termination of Agreement. (a) The Underwriters may terminate ------------------------ this Agreement, by notice to the Company, at any time at or prior to Closing Time (i) if there has been, since the date of this Agreement or since the respective dates as of which information is given in the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, (ii) if there has occurred any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis the effect of which is such as to make it, in the judgment of the Underwriters, impracticable to market the Securities or enforce contracts for the sale of the Securities, or (iii) if trading in the securities of the Company has been suspended by the Commission, or if trading generally on either the American Stock Exchange or the New York Stock Exchange has been suspended, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, or if a banking moratorium has been declared by either federal, New York or California authorities. As used in this Section 9(a), the term "Prospectus" means the Prospectus in the form first used to confirm sales of the Securities. (b) If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other party except as provided in Section 4 hereof. Section 10. Default by One or More of the Underwriters. If any Underwriter ------------------------------------------ shall fail at Closing Time to purchase the Securities which it or they are obligated to purchase hereunder (the "Defaulted Securities"), the remaining Underwriters (the "Non-Defaulting Underwriters") shall have the right, but not the obligation, within 24 hours thereafter, to make arrangements to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, the Non- Defaulting Underwriters shall have not completed such arrangements within such 24-hour period, then this Agreement shall terminate without liability on the part of the Non-Defaulting Underwriters. No action pursuant to this Section shall relieve any defaulting Underwriter from liability in respect of its default. In the event of any such default which does not result in a termination of this Agreement, either the Non-Defaulting Underwriters or the Company shall have the right to postpone Closing Time for a period not exceeding seven days in order to effect any required changes in the Registration Statement or Prospectus 24 or in any other documents or arrangements. Section 11. Notices. All notices and other communications hereunder shall ------- be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of written telecommunication. Notices to the Underwriters shall be directed to them at Merrill Lynch at 10900 Wilshire Boulevard, Los Angeles, California 90024, attention of James F. Flaherty III, Managing Director, and notices to the Company shall be directed to it at 10990 Wilshire Boulevard, Suite 1200, Los Angeles, California 90024, attention of Kenneth B. Roath, President and Chief Executive Officer, with a copy to Thomas W. Dobson at Latham & Watkins, 633 West Fifth Street, Los Angeles, California 90071. Section 12. Parties. This Agreement shall inure to the benefit of and be ------- binding upon the Underwriters and the Company and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation other than the Underwriters and the Company and their respective successors and the controlling persons and the officers and directors referred to in Sections 6 and 7 hereof and their heirs and legal representatives any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters and the Company and their respective successors, and said controlling persons and said officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from any Underwriter shall be deemed to be a successor merely by reason of such purchase. Section 13. Governing Law and Time. This Agreement shall be governed by ---------------------- and construed in accordance with the laws of the State of California applicable to agreements made and to be performed in such State. Unless stated otherwise, all specified times of day refer to New York City time. 25 If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the Underwriters and the Company in accordance with its terms. Very truly yours, HEALTH CARE PROPERTY INVESTORS, INC. By: /s/ Edward J. Henning Name: Edward J. Henning Title: Senior Vice President CONFIRMED AND ACCEPTED, as of the date first above written: MERRILL LYNCH & CO. Merrill Lynch, Pierce, Fenner & Smith Incorporated ALEX. BROWN & SONS INCORPORATED DEAN WITTER REYNOLDS INC. By MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED By: /s/ Catherine D. Rice Name: Catherine D. Rice Title: Director 26 SCHEDULE A
Number of Initial Underwriter Securities ----------- ---------- Merrill Lynch, Pierce, Fenner & Smith Incorporated ......................... 500,000 Alex. Brown & Sons Incorporated .................. 500,000 Dean Witter Reynolds Inc. ........................ 500,000 --------- Total 1,500,000 =========
27 EX-2 3 Exhibit 10.37 REVOLVING CREDIT AGREEMENT dated as of March 31, 1994 among HEALTH CARE PROPERTY INVESTORS, INC. THE BANKS NAMED HEREIN AND THE BANK OF NEW YORK as Agent TABLE OF CONTENTS Page ---- RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARTICLE I DEFINITIONS Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . 1 ARTICLE II THE LOANS Section 2.01. The Loans . . . . . . . . . . . . . . . . . . . . . 15 Section 2.02. Procedure for Loans . . . . . . . . . . . . . . . . 16 Section 2.03. Notes . . . . . . . . . . . . . . . . . . . . . . . 17 Section 2.04. Certain Fees. . . . . . . . . . . . . . . . . . . . 17 Section 2.05. Cancellation or Reduction of the Commitment . . . . 17 Section 2.06. Optional Prepayment . . . . . . . . . . . . . . . . 18 ARTICLE III INTEREST, METHOD OF PAYMENT, CONVERSION, ETC. Section 3.01. Procedure for Interest Rate Determination . . . . . 18 Section 3.02. Interest on ABR Loans . . . . . . . . . . . . . . . 18 Section 3.03. Interest on Eurodollar Loans. . . . . . . . . . . . 19 Section 3.04. Conversion/Continuance. . . . . . . . . . . . . . . 20 Section 3.05. Post Default Interest . . . . . . . . . . . . . . . 20 Section 3.06. Maximum Interest Rate . . . . . . . . . . . . . . . 20 ARTICLE IV DISBURSEMENT AND PAYMENT Section 4.01. Pro Rata Treatment. . . . . . . . . . . . . . . . . 21 Section 4.02. Method of Payment . . . . . . . . . . . . . . . . . 21 Section 4.03. Compensation for Losses . . . . . . . . . . . . . . 21 Section 4.04. Withholding, Reserves and Additional Costs. . . . . 22 Section 4.05. Unavailability. . . . . . . . . . . . . . . . . . . 25 ARTICLE V REPRESENTATIONS AND WARRANTIES Section 5.01. Representations and Warranties . . . . . . . . . . .26 ARTICLE VI CONDITIONS OF LENDING Section 6.01. Conditions to the Availability of the Commitment. . 33 Section 6.02. Conditions to All Loans . . . . . . . . . . . . . . 34 ARTICLE VII COVENANTS Section 7.01. Affirmative Covenants . . . . . . . . . . . . . . . 35 Section 7.02. Negative Covenants. . . . . . . . . . . . . . . . . 39 Section 7.03. Financial Covenants . . . . . . . . . . . . . . . . 42 ARTICLE VIII EVENTS OF DEFAULT Section 8.01. Events of Default . . . . . . . . . . . . . . . . . 42 ARTICLE IX THE AGENT AND THE BANKS Section 9.01. The Agency and Co-Agency. . . . . . . . . . . . . . 45 Section 9.02. The Agent's Duties. . . . . . . . . . . . . . . . . 46 Section 9.03. Sharing of Payment and Expenses . . . . . . . . . . 46 Section 9.04. The Agent's Liabilities . . . . . . . . . . . . . . 47 Section 9.05. The Agent as a Bank . . . . . . . . . . . . . . . . 47 Section 9.06. Bank Credit Decision. . . . . . . . . . . . . . . . 47 Section 9.07. Indemnification . . . . . . . . . . . . . . . . . . 48 Section 9.08. Successor Agent . . . . . . . . . . . . . . . . . . 48 ARTICLE X CONSENT TO JURISDICTION; JUDGMENT CURRENCY Section 10.01. Consent to Jurisdiction . . . . . . . . . . . . . 49 ARTICLE XI MISCELLANEOUS Section 11.01. APPLICABLE LAW . . . . . . . . . . . . . . . . . . 50 Section 11.02. Set-off. . . . . . . . . . . . . . . . . . . . . . 50 Section 11.03. Expenses . . . . . . . . . . . . . . . . . . . . . 50 Section 11.04. Amendments . . . . . . . . . . . . . . . . . . . . 50 Section 11.05. Cumulative Rights and No Waiver. . . . . . . . . . 51 Section 11.06. Notices. . . . . . . . . . . . . . . . . . . . . . 51 Section 11.07. Separability . . . . . . . . . . . . . . . . . . . 52 Section 11.08. Assignments and Participations . . . . . . . . . . 52 Section 11.09. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . 54 Section 11.10. Confidentiality. . . . . . . . . . . . . . . . . . 54 Section 11.11. Indemnity. . . . . . . . . . . . . . . . . . . . . 54 Section 11.12. Extension of Termination Dates; Removal of Banks; Substitutions of Banks . . . . . . . . . 55 Section 11.13. Knowledge of the Company . . . . . . . . . . . . . 56 Section 11.14. Execution in Counterparts. . . . . . . . . . . . . 57 TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 SIGNATURES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 EXHIBITS AND SCHEDULES EXHIBIT A Form of Conversion Request EXHIBIT B Form of Loan Request EXHIBIT C Form of Note EXHIBIT D Form of Opinion of Latham & Watkins EXHIBIT E Form of Opinion of Semmes, Bowen & Semmes SCHEDULE 5.01(a) Subsidiaries and Joint Ventures of the Company REVOLVING CREDIT AGREEMENT REVOLVING CREDIT AGREEMENT, dated as of March 31, 1994 (this "Agreement"), among Health Care Property Investors, Inc., a Maryland corporation (the "Company"), each of the banks identified on the signature pages hereof (each, a "Bank" and, collectively, the "Banks"), The Bank of New York, as Agent for the Banks (the "Agent"), and NationsBank of Texas, N.A. ("NationsBank"), as Co- Agent. W I T N E S S E T H: WHEREAS, the Company has requested the Banks to lend up to $100,000,000 to the Company on a revolving basis for general corporate purposes; and WHEREAS, the Company wishes to replace its current $80,000,000 self- agented credit facility with the facility contemplated hereunder; NOW, THEREFORE, the parties hereby agree as follows: ARTICLE I DEFINITIONS Section 1.01. Definitions. (a) Terms Generally. The definitions ascribed to terms in this Section 1.01 and elsewhere in this Agreement shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words "include", "includes" and "including" shall be deemed to be followed by the phrase "without limitation". The words "hereby", "herein", "hereof", "hereunder" and words of similar import refer to this Agreement as a whole (including any exhibits and schedules hereto) and not merely to the specific section, paragraph or clause in which such word appears. All references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall otherwise require. Except as otherwise expressly provided herein, all references to "dollars" or "$" shall be deemed references to the lawful money of the United States of America. (b) Accounting Terms. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided, however, that, for purposes of determining compliance with any covenant set forth in Sections 7.02(a), 7.02(b), 7.02(c), 7.02(d) or 7.03 which requires financial computations, if any such change in GAAP would have a material effect on such computations then such terms shall be construed in accordance with GAAP as in effect on the date of this Agreement applied on a basis consistent with the construction thereof applied in preparing the Company's audited financial statements referred to in Section 5.01(h). In the event there shall occur a change in GAAP which but for the foregoing proviso would affect the computation used to determine compliance with any covenant set forth in Sections 7.02(a), 7.02(b), 7.02(c) or 7.03 which requires financial computations, the Company and the Banks agree to negotiate in good faith in an effort to agree upon an amendment to this Agreement that will permit compliance with such covenant to be determined by reference to GAAP as so changed while affording the Banks the protection afforded by such covenant prior to such change (it being understood, however, that such covenant shall remain in full force and effect in accordance with its existing terms pending the execution by the Company and the Banks of any such amendment). (c) Other Terms. The following terms shall have the meanings ascribed to them below or in the Sections of this Agreement indicated below: "ABR Loans" shall mean Loans which bear interest at a rate based upon the Base Rate and in the manner set forth in Section 3.02. "Administrative Fee" shall have the meaning ascribed to such term in Section 2.04(b). "Adverse Environmental Condition" shall mean any of the matters referred to in clauses (i) or (ii) of the definition of Environmental Claim. "Affiliate" shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with such Person. A Person shall be deemed to control another Person if such first Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such other Person, whether through ownership of stock, by contract or otherwise. "Agency Fee" shall have the meaning ascribed to such term in Section 6.01(i). "Agent" shall have the meaning given to such term in the preamble of this Agreement and shall also include any successor agent hereunder. "Applicable Margin" shall mean the margin set forth in the following chart applicable to the Pricing Level then in effect: Applicable Margin ----------------- Pricing Level ABR Loans Eurodollar Loans - ------------- --------- ---------------- I 0.00% 0.3125% II 0.00% 0.4250% III 0.00% 0.5000% IV 0.00% 0.7000% V 0.50% 1.5000% Subject to (I), (II) and (III) below, "Pricing Level I" shall be applicable for so long as the rating of the Company's unsecured senior debt ("Senior Debt Rating") is greater than or equal to A by Standard & Poor's Corporation ("S&P") and greater than or equal to A2 by Moody's Investors Service, Inc. ("Moody's"); "Pricing Level II" shall be applicable for so long as the Senior Debt Rating is greater than or equal to A- by S&P and greater than or equal to A3 by Moody's; "Pricing Level III" shall be applicable for so long as the Senior Debt Rating is greater than or equal to BBB+ by S&P and greater than or equal to Baa1 by Moody's; "Pricing Level IV" shall be applicable for so long as the Senior Debt Rating is greater than or equal to BBB- by S&P and greater than or equal to Baa3 by Moody's; "Pricing Level V" shall be applicable for so long as the Senior Debt Rating is less than BBB- by S&P and Baa3 by Moody's. Notwithstanding the foregoing, (I) in the event of a split rating as between S&P and Moody's, and one or more of Fitch Investors Service, Inc. and Duff & Phelps Inc. (collectively with S&P and Moody's, "Rating Agencies") then has or have a publicly available Senior Debt Rating or Ratings, then the pricing level will be determined by the Senior Debt Rating published by the majority, if any, of such Rating Agencies; provided that such majority must include one of S&P or Moody's; and provided, further, that if neither the rating of S&P nor the rating of Moody's is in such majority or there is no such majority, then the pricing level shall be determined by the lower of the ratings of S&P and Moody's; (II) in the event that no Senior Debt Rating is made publicly available by S&P or Moody's and the Company's senior subordinated unsecured debt rating ("Subordinated Debt Rating") is made publicly available by S&P or Moody's, then for purposes of the foregoing determinations the Senior Debt Rating shall be deemed to be equal to the Subordinated Debt Rating plus one level (e.g., if S&P's Subordinated Debt Rating is A-, then S&P's Senior Debt Rating shall be deemed to be A); and (III) in the event that no Senior Debt Rating and no Subordinated Debt Rating are made available by S&P or Moody's, then Pricing Level V above shall apply. "Bank" shall have the meaning given to such term in the preamble of this Agreement and shall also include any other financial institution which pursuant to the provisions hereof becomes a party to this Agreement. "Base LIBOR" shall mean, with respect to any Interest Period for a Eurodollar Loan, the rate per annum determined by the Agent to be the arithmetic mean (rounded to the nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%, to the next higher 1/16 of 1%) of the respective rates of interest communicated by the Reference Banks to the Agent as the rate at which U.S. dollar deposits are offered to the Reference Banks by leading banks in the London interbank deposits market at approximately 11:00 A.M., London time, on the second full Business Day preceding the first day of such Interest Period in an amount substantially equal to the respective Reference Amounts for a term equal to such Interest Period. "Base Rate" shall mean a fluctuating interest rate per annum as shall be in effect from time to time, which rate per annum shall on any day be equal to the higher of: (a) the rate of interest publicly announced by the Agent from time to time as its prime commercial loan rate in effect on such day; and (b) the sum (adjusted to the nearest 1/4 of 1% or, if there is no nearest 1/4 of 1%, to the next higher 1/4 of 1% of (i) 1/2 of 1% per annum and (ii) the Federal Funds Rate. "Borrowing Date" shall mean the date set forth in each Loan Request as the date upon which the Company desires to borrow Loans pursuant to the terms of this Agreement. "Business Day" shall mean (i) with respect to any ABR Loan or any payment of the Facility Fee, any day except a Saturday, Sunday or other day on which commercial banks in New York City or Los Angeles are authorized by law to close and (ii) with respect to any Eurodollar Loan, any day on which commercial banks are open for domestic and inter-national business (including dealings in U.S. dollar deposits) in London, New York City and Los Angeles. "Capital Lease" shall mean, with respect to any Person, any obligation of such Person to pay rent or other amounts under a lease with respect to any property (whether real, personal or mixed) acquired or leased by such Person that is required to be accounted for as a liability on a balance sheet of such Person in accordance with GAAP. "Capital Lease Obligations" shall mean the obliga-tion of any Person to pay rent or other amounts under a Capital Lease. "Code" shall mean the Internal Revenue Code of 1986, as amended. "Commitment" of any Bank shall mean, in the case of each Bank (i) prior to any such Bank's Termination Date, the amount set forth opposite such Bank's name under the heading "Commitment" on the signature pages hereof, or set forth in the assignment agreement executed by such Bank if it is not a Bank on the date hereof, as such amount may be adjusted from time to time pursuant to assignments of such Bank and as such amount may be reduced from time to time pursuant to Section 2.05 and (ii) after such Bank's Termination Date, zero. "Compliance Date" shall mean each of the date of this Agreement, each Borrowing Date, each Conversion Date and the date of each delivery by the Company of a certificate requiring the Company to certify as to the accuracy of the representations and warranties contained in Article V. "Consolidated Debt" shall mean Consolidated Total Liabilities less (i) accounts payable and accrued expenses and (ii) minority interest in joint ventures, each as set forth in the most recent financial statements delivered to the Banks pursuant to this Agreement. "Consolidated Depreciation/Non-Cash Charges" shall mean, at any date of determination, "Depreciation/Non-Cash Charges" or the similar item, determined on a consolidated basis for the Company and its subsidiaries, as shown on the most recent consolidated statement of income for the Company and its Subsidiaries which has been delivered to the Agent pursuant to Section 7.01(a). "Consolidated Funds from Operations" shall mean, for any period, "Funds From Operations" or the similar item, determined on a consolidated basis for the Company and its subsidiaries, as shown on the most recent consolidated statements of cash flows for the Company and its subsidiaries which has been delivered to the Agent pursuant to Section 7.01(a). "Consolidated Interest Expense" shall mean, for any period, total interest expense (including that attributable to Capital Leases in accordance with GAAP) of the Company and its subsidiaries, determined on a consolidated basis, in accordance with GAAP with respect to all outstanding Indebtedness of the Company and its subsidiaries, including all net costs under Interest Rate Protection Agreements. "Consolidated Net Income" shall mean, for any period, "Net Income" or the similar item, determined on a consolidated basis for the Company and its subsidiaries, as shown on the most recent consolidated statement of income for the Company and its Subsidiaries which has been delivered to the Agent pursuant to Section 7.01(a). "Consolidated Senior Debt" shall mean (i) the Loans and (ii) all other Consolidated Debt unless by the terms of the instrument creating or evidencing such other Consolidated Debt it is provided that such Consolidated Debt is subordinated in right of payment to the Loans. "Consolidated Stockholders' Equity" shall mean, for any period, "Total Stockholders' Equity" or the similar item, determined on a consolidated basis for the Company and its subsidiaries, as shown on the most recent consolidated balance sheet for the Company and its subsidiaries which has been delivered to the Agent pursuant to Section 7.01(a). "Consolidated Total Assets" shall mean, at any date of determination, "Total Assets" or the similar item, determined on a consolidated basis for the Company and its subsidiaries, as shown on the most recent consolidated balance sheet for the Company and its subsidiaries which has been delivered to the Agent pursuant to Section 7.01(a). "Consolidated Total Liabilities" shall mean, at any date of determination, "Total Liabilities and Stockholders Equity" or the similar item, determined on a consolidated basis for the Company and its subsidiaries, as shown on the most recent consolidated balance sheet for the Company and its subsidiaries which has been delivered to the Agent pursuant to Section 7.01(a), less Consolidated Stockholders Equity. "Conversion/Continuance Date" shall mean the date on which a conversion of interest rates on outstanding Loans, pursuant to a Conversion/Continuance Request, shall take effect. "Conversion/Continuance Request" shall mean a request by the Company to convert or continue the interest rate on all or portions of outstanding Loans pursuant to the terms hereof, which shall be substantially in the form of Exhibit A and shall specify, with respect to such outstanding Loans, (i) the requested Conversion/Continuance Date, which shall be not less than three Business Days after the date of such Conversion/Continuance Request, (ii) the aggregate amount of the Loans, from and after the Conversion/Continuance Date, which are to bear interest as ABR Loans or Eurodollar Loans and (iii) if any Loans are Eurodollar Loans, the term of the Interest Periods therefor, if any. "Credit Documents" shall mean this Agreement and the Notes. "Default" shall mean any event or circumstance which, with the giving of notice or the passage of time, or both, would become an Event of Default. "Environmental Claim" shall mean any notice, request for information, action, claim, order, proceeding, demand or direction (conditional or otherwise) based on, relating to or arising out of (i) any violation of any Environmental Law by the Company or any person acting on behalf of the Company, or (ii) any liabilities under any Environmental Law arising out of or otherwise in respect of any act, omission, event, condition or circumstance existing or occurring in connection with the Company, including without limitation liabilities relating to the release of hazardous substances (whether on-site or off-site), any claim by any third party (including, without limitation, tort suits for personal or bodily injury, tangible or intangible property damage, damage to the environment, nuisance and injunctive relief), fines, penalties or restrictions, or the transportation, storage, treatment or disposal of any Hazardous Substances. "Environmental Law" means (i) any federal, state, foreign and local law, statute, ordinance, rule, regulation, code, license, permit, authorization, approval, consent, legal doctrine, order, judgment, decree, injunction, requirement or agreement with any governmental entity, (x) relating to the protection, preservation or restoration of the environment, (including, without limitation, air, water vapor, surface water, groundwater, drinking water supply, surface land, subsurface land, plant and animal life or any other natural resource), or to human health or safety, or (y) the exposure to, or the use, storage, recycling, treatment, generation, transportation, processing, handling, labeling, production, release or disposal of Hazardous Substances, in each case as amended and as now or hereafter in effect. The term Environmental Law includes, without limitation, the federal Comprehensive Environmental Response Compensation and Liability Act of 1980, the Superfund Amendments and Reauthorization Act, the federal Water Pollution Control Act of 1972, the federal Clean Air Act, the federal Clean Water Act, the federal Resource Conservation and Recovery Act of 1976 (including the Hazardous and Solid Waste Amendments thereto), the federal Solid Waste Disposal and the federal Toxic Substances Control Act, the Federal Insecticide, Fungicide and Rodenticide Act, the Federal Occupational Safety and Health Act of 1970, each as amended and as now or hereafter in effect, and (ii) any common law or equitable doctrine (including, without limitation, injunctive relief and tort doctrines such as negligence, nuisance, trespass and strict liability) that may impose liability or obligations for injuries or damages due to, or threatened as a result of, the presence of or exposure to any Hazardous Substance. "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time. "ERISA Affiliate" shall mean a corporation, partnership or other entity which is considered one employer with the Company under Section 4001 of ERISA or Section 414(b), (c) or (m) of the Code. "Eurodollar Loans" shall mean Loans which bear interest at a rate based upon Base LIBOR and in the manner set forth in Section 3.03. "Eurodollar Reserve Percentage" shall mean for any day, that percentage, expressed as a decimal, which is in effect on such day, as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including any marginal, supplemental or emergency reserve requirements) for a member bank of the Federal Reserve System in New York City with deposits exceeding one billion dollars in respect of eurocurrency funding liabilities. LIBOR shall be adjusted automatically on and as of the effective date of any change in the Eurodollar Reserve Percentage. "Event of Default" shall mean any of the events described in Section 8.01. "Facility Fee" shall have the meaning ascribed to such term in Section 2.04(a). "Facility Fee Rate" with respect to any Facility Fee payment shall mean the facility fee rate set forth in the following chart applicable to the Pricing Level (determined as set forth under "Applicable Margin" above) in effect on the date on which such Facility Fee payment is due: Pricing Level Facility Fee ------------- ------------ I 0.1875% II 0.2000% III 0.2500% IV 0.3000% V 0.5000% "Federal Funds Rate" for any day shall mean the rate (rounded to the nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%, to the next higher 1/16 of 1%) on such day for Federal Funds as published in H.15(519), or any successor publication, under the heading "Federal Funds (Effective)". In the event that such rate or such publication is not published with respect to such day the Federal Funds Rate on such day shall be the "Federal Funds/Effective Rate" as posted by the Federal Reserve Bank of New York for that day in its publication "Composite Closing Quotations for U.S. Government Securities". The Federal Funds Rate for Saturdays, Sundays and any other day on which the Federal Reserve Bank of New York is closed shall be the Federal Funds Rate as in effect for the next preceding day for which such rates are published or posted, as the case may be. "GAAP" shall mean generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entities as may be approved by a significant segment of the accounting profession, which are applicable to the circumstances as of the date of determination. "Guarantee" by any person shall mean any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness of any other Person (the "primary obligor") in any manner, whether directly or indirectly, and including any obligation of such Person, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or to purchase (or to advance or supply funds for the purchase of) any security for the payment of such Indebtedness, (ii) to purchase property, securities or services for the purpose of assuring the holder of such Indebtedness of the payment of such Indebtedness, or (iii) to maintain working capital, equity capital or other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness (and "Guaranteed", "Guaranteeing" and "Guarantor" shall have meanings correlative to the foregoing). "Governmental Authority" shall mean any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government. "Hazardous Substance" means any substance presently or hereafter listed, defined, designated or classified as hazardous, toxic, radioactive or dangerous, or otherwise regulated, under any Environmental Law, whether by type or by quantity, including any substance containing any such substance as a component. Hazardous Substance includes, without limitation, any toxic waste, pollutant, contaminant, hazardous substance, toxic substance, hazardous waste, special waste or petroleum or any derivative or by-product thereof, radon, radioactive material, asbestos, asbestos containing material, urea formaldehyde foam insulation, lead and polychlorinated biphenyl. "Indebtedness" of any Person shall mean, without duplication, (a) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services (including all obligations, contingent or otherwise, of such Person in connection with letter of credit facilities, bankers' acceptance facilities, Interest Rate Protection Agreements or other similar facilities including currency swaps) other than indebtedness to trade creditors and service providers incurred in the ordinary course of business, (b) all obligations of such Person evidenced by bonds, notes, debentures or other similar instruments, (c) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (d) all Capital Lease Obligations of such Person, (e) all Indebtedness referred to in clauses (a), (b), (c) or (d) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in property (including accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness, (f) all preferred stock issued by such Person which is redeemable, prior to the full satisfaction of the Company's obligations under the Credit Documents (including repayment in full of the Loans and all interest accrued thereon), other than at the option of such Person, valued at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends and (g) all Indebtedness of others Guaranteed by such Person. For purposes of this Agreement, the amount of any Indebtedness under clauses (c) and (e) shall be the lesser of (x) the principal amount of such Indebtedness and (y) the value of the property subject to the Lien referred to therein. "Initial Loan" shall mean the first Loan which is made pursuant to the terms hereof. "Interest Period" shall mean each one, two, three or six-month period, in the case of Eurodollar Loans; such period being the one selected by the Company pursuant to Sections 2.02 or 3.04 hereof and commencing on the date the relevant loan is made or the last day of the current Interest Period, as the case may be. "Interest Rate Protection Agreements" shall mean any interest rate swap agreement, interest rate cap agreement or similar arrangement used by a Person to fix or cap a floating rate of interest on Indebtedness to a negotiated maximum rate or amount. "Lien" shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest in or on such asset and (b) the interest of a vendor or lessor under any conditional sale agreement, capital lease or title retention agreement relating to such asset. "LIBOR" shall mean with respect to any Interest Period the rate per annum (rounded to the nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%, to the next higher 1/16 of 1%) determined pursuant to the following formula: Base LIBOR ----------------------------------- LIBOR = (1 - Eurodollar Reserve Percentage) "Loan Request" shall mean a request by the Company to borrow Loans pursuant to the terms hereof, which shall be substantially in the form of Exhibit B and shall specify, with respect to such requested Loans, (i) the requested Borrowing Date, (ii) the aggregate amount of Loans which the Company desires to borrow on such date, (iii) whether such requested Loans are to bear interest as ABR Loans or Eurodollar Loans, and (iv) if the requested Loans are to bear interest as Eurodollar Loans the requested term of the Interest Period therefor. "Loans" shall mean, collectively, ABR Loans and Eurodollar Loans outstanding hereunder from time to time. "Material Adverse Change" shall mean a material adverse change in the business, properties, condition (financial or otherwise) or operations of the Company and its Subsidiaries, taken as a whole since December 31, 1993. "Material Adverse Effect" shall mean (i) any material adverse effect on the business, properties, condition (financial or otherwise) or operations of the Company and its Subsidiaries taken as a whole, from and after the date of any determination, (ii) any material adverse effect on the ability of the Company to perform its obligations hereunder and under the Credit Documents, or (iii) any adverse effect on the legality, validity, binding effect or enforceability of this Agreement or any other Credit Document. "Money Market Loan" shall mean all borrowed money, whether or not evidenced by any bonds, notes, debentures or other similar instruments, obtained directly or indirectly by the Company or any Subsidiary from any commercial bank or other financial institution, including amounts borrowed pursuant to any line of credit, but excluding the Loans. "Notes" shall mean, collectively, the promissory notes of the Company, each substantially in the form of Exhibit C. "Participant" shall have the meaning ascribed to such term in Section 11.08(b). "PBGC" shall mean the Pension Benefit Guaranty Corporation or any successor thereto. "Permitted Encumbrances" shall mean (i) Liens for taxes not delinquent or being contested in good faith and by appropriate proceedings and for which adequate reserves (in accordance with GAAP) are being maintained, (ii) deposits or pledges to secure obligations under workers' compensation, social security or similar laws, or under unemployment insurance, (iii) deposits or pledges to secure bids, tenders, contracts (other than contracts for the payment of money), leases, statutory obligations, surety and appeal bonds and other obligations of like nature arising in the ordinary course of business, (iv) mechanics', workers', materialmen's or other like Liens arising in the ordinary course of business with respect to obligations which are not due or which are being contested in good faith and (v) minor imperfections of title on real estate, provided such imperfections do not render title unmarketable. "Person" shall mean any individual, sole proprietorship, partnership, joint venture, trust, unincorporated organization, association, corporation, institution, public benefit corporation, entity or government (whether Federal, state, county, city, municipal or otherwise, including any instrumentality, division, agency, body or department thereof). "Plan" shall mean an employee benefit plan as defined in Section 3(3) of ERISA which is maintained or contributed to by the Company or an ERISA Affiliate while such entity is an ERISA Affiliate. "Prescribed Forms" shall mean such duly executed form(s) or statement(s), and in such number of copies, which may, from time to time, be prescribed by law and which, pursuant to applicable provisions of (a) an income tax treaty between the United States and the country of residence of the Bank providing the form(s) or statement(s), (b) the Code, or (c) any applicable rule or regulation under the Code, permit the Company to make payments hereunder for the account of such Bank free of deduction or withholding for income or similar taxes. "Pro Rata Share" shall mean, with respect to any Bank, the proportion of such Bank's Commitment to the Total Commitment of all the Banks or, if the Total Commitment shall have been cancelled or reduced to $0 or expired, the proportion of such Bank's then outstanding Loans to the aggregate amount of Loans then outstanding. "Reference Amount", with respect to any Reference Bank and Interest Period, shall mean (a) if that Reference Bank is a Bank, the amount of that Bank's Eurodollar Loan scheduled to be outstanding during that Interest Period, or (b) if that Reference Bank is not a Bank, the amount scheduled to be outstanding during that Interest Period of the Eurodollar Loan of the office or affiliate of that Reference Bank that is a Bank, in each case, (i) without taking into account any reduction in the amount of any Bank's Loan through any assignment or transfer and (ii) rounded up to the nearest integral multiple of $1,000,000. "Reference Bank" shall mean each of The Bank of New York, NationsBank, and Wells Fargo Bank, N.A. "Required Banks" shall mean at any date Banks having at least 51% of the Total Commitment or, if the Total Commitment has been cancelled or terminated, holding Notes evidencing at least 51% of the aggregate unpaid principal amount of the Loans. "Single-Employer Plan" shall mean any Plan that is a single-employer plan as defined in Section 4001(a)(15) of ERISA which is subject to the provisions of Title IV of ERISA. "Subsidiary" shall mean any Person of which or in which the Company and its other Subsidiaries own directly or indirectly 50% or more of: (a) the combined voting power of all classes of stock having general voting power under ordinary circumstances to elect a majority of the board of directors of such Person, if it is a corporation, (b) the capital interest or profits interest of such Person, if it is a partnership, joint venture or similar entity, or (c) the beneficial interest of such Person, if it is a trust, association or other unincorporated organization; provided, however, that "Subsidiary" shall not include any such entity that the Company does not control. For the purposes of this paragraph, the term "control" shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting equity interests, by contract or otherwise. "Taxes" shall have the meaning ascribed to such term in Section 4.04(a). "Termination Date" shall mean, with respect to any Bank, the earliest to occur of (i) the third anniversary of the date of this Agreement or such later date as may be agreed to by such Bank pursuant to Section 11.12, (ii) the date on which the obligations of the Banks to make loans hereunder shall terminate pursuant to Section 8.01 or the Commitments shall be reduced to zero pursuant to Section 2.05, and (iii) the date specified as such Bank's Termination Date pursuant to Section 11.12, or, if in any case (other than clause (ii) above) such day is not a Business Day, the next succeeding Business Day; in all cases, subject to the provisions of Section 11.12(d). "Total Commitment" shall mean the aggregate Commitment of all the Banks. "Unmatured Surviving Obligations" shall mean, as of any date, any obligations under this Agreement which are contingent and unliquidated and not then due and payable on such date and which pursuant to the provisions of this Agreement survive termination of this Agreement. "Wholly owned Subsidiary" shall mean any Subsidiary all the equity interests of which (other than directors' qualifying shares, if a corporation) at the time are owned directly or indirectly by the Company and/or one or more Wholly owned Subsidiaries of the Company. ARTICLE II THE LOANS Section 2.01. The Loans. Prior to the Termination Date, and subject to the terms and conditions of this Agreement, upon the request of the Company, and upon the satisfaction by the Company or the waiver by each of the Banks of each of the conditions precedent contained in Section 6.02, each of the Banks, severally and not jointly with the other Banks, agrees to make one or more Loans to the Company from time to time in an aggregate principal amount at any one time outstanding not to exceed its Commitment; provided, however, that the sum of (i) aggregate outstanding Loans and (ii) aggregate outstanding Money Market Loans, may not exceed the Total Commitment. Section 2.02. Procedure for Loans. (a) The Company may borrow Loans by delivering a written Loan Request to the Agent on or before 12:00 P.M., New York City time, on the requested Borrowing Date therefor, in the case of ABR Loans, or on the date not less than three Business Days prior to the requested Borrowing Date therefor, in the case of Eurodollar Loans. Loans shall be in the minimum aggregate amount of $1,000,000 or in integral multiples of $100,000 in excess thereof. (b) Upon receipt of any Loan Request from the Company, the Agent shall forthwith give notice to each Bank of the substance thereof. Not later than 2:00 P.M., New York time, on the Borrowing Date specified in such Loan Request, each Bank shall make available to the Agent in immediately available funds at the office of the Agent at its address set forth on the signature pages hereof, such Bank's Pro Rata Share of the requested Loans. (c) Upon receipt by the Agent of all such funds and satisfaction by the Company or waiver by each of the Banks of each of the conditions precedent contained in Section 6.02, the Agent shall disburse to the Company on the requested Borrowing Date the Loans requested in such Loan Request. The Agent may, but shall not be required to, advance on behalf of any Bank such Bank's Pro Rata Share of the Loans on a Borrowing Date unless such Bank shall have notified the Agent prior to such Borrowing Date that it does not intend to make available its Pro Rata Share of such Loans on such date. If the Agent makes such advance, the Agent shall be entitled to recover such amount on demand from the Bank on whose behalf such advance was made, and if such Bank does not pay the Agent the amount of such advance on demand, the Company shall promptly repay such amount to the Agent. Until such amount is repaid to the Agent by such Bank or the Company, such advance shall be deemed for all purposes to be a Loan made by the Agent. The Agent shall be entitled to recover from the Bank or the Company, as the case may be, interest on the amount advanced by it for each day from the Borrowing Date therefor until repaid to the Agent, at a rate per annum equal to (i) the Federal Funds Rate, for the five-day period beginning on the Borrowing Date, and (ii) the applicable rate on the Loans made on the Borrowing Date for the period beginning on the sixth day after the Borrowing Date. (d) In lieu of delivering the written notice described above, the Company may give the Agent telephonic notice of any request for borrowing by the time required under this Section 2.02; provided that such telephonic notice shall be confirmed by delivery of a written notice to the Agent by no later than 4:00 P.M., New York City time, on the date of such telephonic notice. Section 2.03. Notes. The Company's obligation to repay the Loans shall be evidenced by Notes, one such Note payable to the order of each Bank. The Note of each Bank shall (i) be in the principal amount of such Bank's Commitment, (ii) be dated the date of the initial Loan and (iii) be stated to mature on the Termination Date as such date may be extended hereunder and bear interest from its date until maturity on the principal balance (from time to time outstanding thereunder) payable at the rates and in the manner provided herein. Each Bank is authorized to indicate upon the grid attached to its Note all Loans made by it pursuant to this Agreement, interest elections and payments of principal and interest thereon. Such notations shall be presumptive as to the aggregate unpaid principal amount of all Loans made by such Bank, and interest due thereon, but the failure by any Bank to make such notations or the inaccuracy or incompleteness of any such notations shall not affect the obligations of the Company hereunder or under the Notes. Section 2.04. Certain Fees. (a) The Company shall pay to the Agent for the account of the Banks a fee (the "Facility Fee") equal to the Facility Fee Rate per annum (on the basis of a 360-day year consisting of twelve 30-day months) on the daily average amount of the Total Commitment during the quarter with respect to which such Facility Fee is being paid. Such fee shall be payable in arrears on the last day of each calendar quarter, commencing on the first such date after the date hereof, on any date that the Total Commitment is cancelled or reduced pursuant to Section 2.05 (but only with respect to the amount of such cancellation or reduction) and on the Termination Date. (b) The Company shall pay to the Agent for its account an administrative fee (the "Administrative Fee") pursuant to a letter agreement, dated the date hereof, between the Company and the Agent or as may hereafter be agreed to between the Agent and the Company. Section 2.05. Cancellation or Reduction of the Commitment. The Company shall have the right, upon not less than two Business Days' written notice to the Agent and upon payment of the Facility Fees accrued through the date of such cancellation or reduction, with respect to the amount of the cancellation or reduction, to cancel the Total Commitment in full or to reduce the amount thereof; provided, however, that the Total Commitment may not be canceled so long as any Loan remains outstanding; and provided, further, that the amount of any partial reduction in the Total Commitment shall not exceed the remainder of (i) the Total Commitment on such date minus (ii) the aggregate outstanding principal amount of Loans and Money Market Loans on such date. Partial reductions of the Total Commitment shall be in the amount of $1,000,000 or in integral multiples of $100,000 in excess thereof (or, if the aggregate outstanding amount of Loans is less than $1,000,000, then all of such lesser amount). All such cancellations or reductions shall be permanent. Section 2.06. Optional Prepayment. The Company shall have the right, on not less than two Business Days' written notice to the Agent in the case of Eurodollar Loans, and not less than one Business Day's written notice to the Agent in the case of ABR Loans, to prepay Loans bearing interest on the same basis and having the same Interest Periods, if any, in whole or in part, without premium or penalty, in the aggregate principal amount of $1,000,000 or in integral multiples of $100,000 in excess thereof (or, if the outstanding aggregate amount of such Loan is less than $1,000,000, then all of such lesser amount), together with accrued interest on the principal being prepaid to the date of prepayment and, in the case of Eurodollar Loans, the amounts required by Section 4.03. Subject to the terms and conditions hereof, prepaid Loans may be reborrowed. ARTICLE III INTEREST, METHOD OF PAYMENT, CONVERSION, ETC. Section 3.01. Procedure for Interest Rate Determination. (a) Unless the Company shall request in a Loan Request or in a Conversion Request that the Loans (or portions thereof) bear interest as Eurodollar Loans, the Loans shall bear interest as ABR Loans. Section 3.02. Interest on ABR Loans. Each ABR Loan shall bear interest from the date of such ABR Loan until maturity thereof or until such Loan is repaid, or the beginning of any relevant Interest Period, as the case may be, payable in arrears on the last day of each calendar quarter of each year, commencing with the first such date after the date hereof, and on the date such ABR Loan is repaid, at a rate per annum (on the basis of a 365- or 366-day year for the actual number of days involved in the case of ABR Loans which accrue interest based upon the Prime Rate and on the basis of a 360-day year for the actual number of days involved in the case of ABR Loans which accrue interest based upon the Federal Funds Rate) equal to the sum of (i) the Applicable Margin with respect to ABR Loans and (ii) the Base Rate in effect from time to time, which rate shall change as and when said Base Rate shall change. Section 3.03. Interest on Eurodollar Loans. (a) Each Eurodollar Loan shall bear interest from the date of such Loan until maturity thereof or until such Loan is repaid, payable in arrears, with respect to Interest Periods of three months or less, on the last day of such Interest Period, and with respect to Interest Periods longer than three months, on the day which is three months after the commencement of such Interest Period and on the last day of such Interest Period, at a rate per annum (on the basis of a 360-day year for the actual number of days involved), determined by the Agent with respect to each Interest Period with respect to Eurodollar Loans, equal to the sum of (i) the Applicable Margin with respect to Eurodollar Loans and (ii) LIBOR. (b) The Interest Period for each Eurodollar Loan shall be selected by the Company at least three Business Days prior to the beginning of such Interest Period. If the Company fails to notify the Agent of the Interest Period for a subsequent Eurodollar Loan at least three Business Days prior to the last day of the then current Interest Period of an outstanding Eurodollar Loan, then such outstanding Eurodollar Loan shall become an ABR Loan at the end of such current Interest Period. (c) Notwithstanding the foregoing: (i) if any Interest Period for a Eurodollar Loan would otherwise end on a day which is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the immediately preceding Business Day; (ii) 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 a calendar month; and (iii) no Interest Period for a Eurodollar Loan may extend beyond the Termination Date. (d) Eurodollar Loans shall be made by each Bank from its branch or affiliate identified as its Eurodollar Lending Office on the signature page hereto, or such other branch or affiliate as it may hereafter designate to the Company and the Agent as its Eurodollar Lending Office. A Bank shall not change its Eurodollar Lending Office designation if it, at the time of the making of such change, increases the amounts that would have been payable by the Company to such Bank under this Agreement in the absence of such a change. Section 3.04. Conversion/Continuance . (a) The Company may request, by delivery to the Agent of a written Conversion/Continuance Request not less than three Business Days prior to a requested Conversion/Continuance Date, that all or portions of the outstanding Loans, in the aggregate amount of $1,000,000 or in integral multiples of $100,000 in excess thereof (or, if the aggregate amount of outstanding Loans is less than $1,000,000, then all such lesser amount), to bear interest from and after the Conversion Date as either ABR Loans or Eurodollar Loans. (b) Upon receipt of any such Conversion/Continuance Request from the Company, the Agent shall forthwith give notice to each Bank of the substance thereof. Effective on such Conversion/Continuance Date and upon payment by the Company of the amounts, if any, required by Section 4.03, the Loans or portions thereof as to which the Conversion/Continuance Request was made shall commence to accrue interest as set forth in this Article III for the interest rate selected by the Company. (c) In lieu of delivering the above described notice, the Company may give the Agent telephonic notice hereunder by the required time under this Section 3.04; provided that such telephonic notice shall be confirmed by delivery of a written notice to the Agent by no later than 4:00 P.M., New York City time, the date of such telephonic notice. Section 3.05. Post Default Interest. Upon the occurrence and during the continuation of an Event of Default, all Loans and any unpaid installment of interest shall bear interest at a rate per annum (on the basis of a 360-day year for the actual number of days involved) equal to the sum of (i) 2% and (ii) with respect to ABR Loans, the rate of interest then applicable to ABR Loans, changing as and when said rate shall change, and, with respect to Eurodollar Loans, the rate of interest applicable to each such Eurodollar Loan. Interest payable pursuant to this Section 3.05 shall be payable on demand. Section 3.06. Maximum Interest Rate. (a) Nothing in this Agreement or the Notes shall require the Company to pay interest at a rate exceeding the maximum rate permitted by applicable law. Neither this Section nor Section 11.01 is intended to limit the rate of interest payable for the account of any Bank to the maximum rate permitted by the laws of the State of New York (or any other applicable law) if a higher rate is permitted with respect to such Bank by supervening provisions of U.S. Federal law. (b) If the amount of interest payable for the account of any Bank on any interest payment date in respect of the immediately preceding interest computation period, computed pursuant to this Article III, would exceed the maximum amount permitted by applicable law to be charged by such Bank, the amount of interest payable for its account on such interest payment date shall automatically be reduced to such maximum permissible amount. ARTICLE IV DISBURSEMENT AND PAYMENT Section 4.01. Pro Rata Treatment. Each payment of the Facility Fee and each reduction of the Total Commitment shall be apportioned among the Banks in proportion to each Bank's Pro Rata Share. Except as provided in Section 4.04 or 4.05, the Notes or portions thereof as to which a Conversion/Continuance Request has been made pursuant to Section 3.04 hereof shall at all times bear interest on the same basis (as ABR Loans and Eurodollar Loans) and the Interest Periods applicable thereto, if any, shall be of the same duration. Section 4.02. Method of Payment. All payments by the Company hereunder and under the Notes shall be made without set-off or counterclaim to the Agent, for its account or for the account of the Bank or Banks entitled thereto, as the case may be, in lawful money of the United States and in immediately available funds at the office of the Agent on the date when due. Section 4.03. Compensation for Losses. (a) Compensation. In the event that (i) the Company makes a prepayment under Section 2.06 on a day other than the last day of the Interest Period for the amount so prepaid, (ii) a Conversion/Continuance Date selected pursuant to Section 3.04 falls on a day other than the last day of the Interest Period for the amount as to which a conversion is made, (iii) the Company revokes any notice given under Section 2.02 requesting Eurodollar Loans, (iv) the Loans or portions thereof are converted into ABR Loans pursuant to Section 4.05 on a day other than the last day of the Interest Period for the Eurodollar Loans so converted, (v) or the Eurodollar Loans shall be declared to be due and payable prior to the scheduled maturity thereof pursuant to Section 8.01, the Company shall pay to each Bank promptly after its demand an amount which will compensate such Bank for any costs and losses incurred by such Bank as a result of such prepayment, conversion, declaration or revocation of notice in respect of funds obtained for the purpose of making or maintaining such Bank's Eurodollar Loans, or any part thereof. Such compensation shall include an amount equal to the excess, if any, of (i) the amount of interest which would have accrued on the amount so paid or prepaid, or not borrowed or converted, for the period from the date of such payment or prepayment or conversion or failure to borrow to the last day of such Interest Period (or, in the case of a failure to borrow, the Interest Period that would have commenced on the date of such failure to borrow) in each case at the applicable rate of interest for such Loan provided for herein (excluding, however, the Applicable Margin included therein) over (ii) the amount of interest (as reasonably determined by such Bank) which would have accrued to such Bank on such amount by placing such amount on deposit for a comparable period with leading banks in the London interbank market. (b) Certificate, Etc. Each Bank shall promptly notify the Company, with a copy to the Agent, upon becoming aware that the Company may be required to make any payment pursuant to this Section 4.03. When requesting payment pursuant to this Section 4.03, each Bank shall provide to the Company, with a copy to the Agent, a certificate, signed by an officer of such Bank, setting forth the amount required to be paid by the Company to such Bank and the computations made by such Bank to determine such amount. In the absence of manifest error, such certificate shall be conclusive and binding on the Company as to the amount so required to be paid by the Company to such Bank. (c) Participants. Subject to Section 11.08(e), each Participant shall be deemed a "Bank" for the purposes of this Section 4.03. Section 4.04. Withholding, Reserves and Additional Costs. (a) Withholding. To the extent permitted by law, all payments under this Agreement and under the Notes (including payments of principal and interest) shall be payable to each Bank free and clear of any and all present and future taxes, levies, imposts, duties, deductions, withholdings, fees, liabilities and similar charges (collectively, the "Taxes"); provided that "Taxes" shall not include taxes imposed on or measured by the overall net income of any Bank by the United States of America or any political subdivision or taxing authority thereof or therein, or taxes on or measured by the overall net income of any foreign office, branch or subsidiary of such Bank by any foreign country or subdivision thereof in which such office, branch or subsidiary is doing business. If any Taxes are required to be withheld or deducted from any amount payable under this Agreement or any Note, then the amount payable under this Agreement or such Note shall be increased to the amount which, after deduction from such increased amount of all Taxes required to be withheld or deducted therefrom, will yield to such Bank the amount stated to be payable under this Agreement or such Note. The Company shall execute and deliver to any Bank upon its request such further instruments as may be necessary or desirable to give full force and effect to any such increase, including a new Note of the Company to be issued in exchange for any Note theretofore issued. If any of the Taxes specified in this Section 4.04(a) are paid by any Bank, the Company shall, not later than 10 days after demand of such Bank, reimburse such Bank for such payments, together with any interest, penalties and expenses incurred in connection therewith, plus interest thereon commencing 10 days after such demand at a rate per annum (based on a 360-day year for the actual number of days involved) equal to the sum of 2% and the interest rate then applicable to ABR Loans, changing as and when such rate shall change, from the date such payment or payments are made by such Bank to the date of reimbursement by the Company; provided, however, that the Company shall not be required to indemnify any Bank or Participant for penalties and expenses that result from the gross negligence or willful misconduct of such Bank or Participant. The Company shall deliver to the Agent certificates or other valid vouchers for all Taxes or other charges deducted from or paid with respect to payments made by the Company hereunder. Notwithstanding the foregoing, the Company shall be entitled, to the extent it is required to do so by law, to deduct or withhold (and shall not be required to make payments as otherwise required in this Section on account of such deductions or withholdings) income or other similar taxes imposed by the United States of America from interest, fees or other amounts payable hereunder for the account of any Bank other than a Bank (i) who is a U.S. Person for U.S. Federal income tax purposes or (ii) who has the Prescribed Forms on file with the Company for the applicable year to the extent deduction or withholding of such taxes is not required as a result of such filing of such Prescribed Forms; provided that if the Company shall so deduct or withhold any such taxes, it shall provide a statement to the Agent and such Bank, setting forth the amount of such taxes so deducted or withheld, the applicable rate and any other information or documentation which such Bank may reasonably request for assisting such Bank to obtain any allowable credits or deductions for the taxes so deducted or withheld in the jurisdiction or jurisdictions in which such Bank is subject to tax. (b) Additional Costs. (i) If after the date hereof, any change in any law or regulation or in the interpretation thereof by any court or administrative or governmental authority charged with the administration thereof or the enactment of any law or regulation shall either (1) impose, modify or deem applicable any reserve, special deposit or similar requirement against the Banks' Commitments or the Loans or (2) impose on any Bank any other condition regarding this Agreement, its Commitment or the Loans and the result of any event referred to in clause (1) or (2) of this clause (b) shall be to increase the cost to any Bank of maintaining its Commitment or the Loans (which increase in cost shall be calculated in accordance with each Bank's reasonable averaging and attribution methods) by an amount which any such Bank deems to be material, then, upon written demand by such Bank, the Company shall pay to such Bank within 10 days of such written demand an amount equal to such increase in cost; provided that in respect of any Loan, no such compensation shall be payable to the extent that, in the reasonable opinion of such Bank, the interest rate on the Loans has been adjusted to account for such increased cost. Such amount shall bear interest, commencing 10 days after receipt by the Company of such demand until payment in full thereof, at a rate per annum (based on a 360-day year, for the actual number of days involved) equal to the sum of 2% and the interest rate then applicable to ABR Loans, changing as and when such rate shall change. (ii) If any Bank shall have determined that the adoption of any applicable law, rule, regulation or guideline regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof (including any such adoption or change made prior to the date hereof but not effective until after the date hereof), or compliance by any Bank with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on capital for any such Bank or any corporation controlling such Bank as a consequence of its obligations under this Agreement to a level below that which such Bank or such corporation could have achieved but for such adoption, change or compliance (taking into consideration such Bank's or such corporation's policies with respect to capital adequacy), then from time to time, not later than 10 days after written demand by such Bank, the Company shall pay to such Bank such additional amount or amounts as will compensate such Bank for such reduction, plus interest thereon commencing 10 days after receipt by the Company of such written demand at a rate per annum (based on a 360-day year, for the actual number of days involved) equal to the sum of 2% and the interest rate then applicable to ABR Loans, changing as and when such rate shall change, from the date of such demand by such Bank to the date of payment by the Company. (c) Lending Office Designations. Before giving any notice to the Company pursuant to this Section 4.04, each Bank shall, if possible, designate a different lending office if such designation will avoid the need for giving such notice and will not, in the judgment of such Bank, be otherwise disadvantageous to such Bank. (d) Certificate, Etc. Each Bank shall promptly notify the Company, with a copy to the Agent, upon becoming aware that the Company may be required to make any payment pursuant to this Section 4.04. When requesting payment pursuant to this Section 4.04, each Bank shall provide to the Company, with a copy to the Agent, a certificate, signed by an officer of such Bank, setting forth the amount required to be paid by the Company to such Bank and the computations made by such Bank to determine such amount. Determinations and allocations by such Bank for purposes of this Section 4.04 shall be conclusive, provided that such determinations and allocations are made on a reasonable basis and are mathematically accurate. Allocations shall not be deemed reasonable unless made ratably, to the extent practicable, to all of the affected Bank's assets, commitments, activities or other relevant aspects of such Bank's business. In the absence of manifest error, such certificate shall be conclusive and binding on the Company as to the amount so required to be paid by the Company to such Bank. (e) Participants. Subject to Section 11.08(e), each Participant shall be deemed a "Bank" for the purposes of this Section 4.04. Section 4.05. Unavailability. If at any time any Bank shall have determined in good faith (which determination shall be conclusive) that the making or maintenance of all or any part of such Bank's Eurodollar Loans has been made impracticable or unlawful because of compliance by such Bank in good faith with any law or guideline or interpretation or administration thereof by any official body charged with the interpretation or administration thereof or with any request or directive of such body (whether or not having the effect of law), because U.S. dollar deposits in the amount and requested maturity of such Eurodollar Loans are not available to the Bank in the London Eurodollar interbank market, or because of any other reason, then the Agent, upon notification to it of such determination by such Bank, shall forthwith advise the other Banks and the Company thereof. Upon such date as shall be specified in such notice and until such time as the Agent, upon notification to it by such Bank, shall notify the Company and the other Banks that the circumstances specified by it in such notice no longer apply, (i) notwithstanding any other provision of this Agreement, such Eurodollar Loans of such Bank shall automatically and without requirement of notice by the Company be converted to ABR Loans and (ii) the obligation of only such Bank to allow borrowing, elections and renewals of Eurodollar Loans shall be suspended, and, if the Company shall request in a Loan Request or Conversion Request that such Bank make a Eurodollar Loan, the loan requested to be made by such Bank shall instead be made as an ABR Loan. ARTICLE V REPRESENTATIONS AND WARRANTIES Section 5.01. Representations and Warranties. As of each Compliance Date, the Company represents and warrants to the Banks that: (a) Subsidiaries. At the date hereof, the Company has no Subsidiaries and is a participant in no joint ventures other than as listed on Schedule 5.01(a). (b) Good Standing and Power. The Company is duly organized and validly existing and in good standing under the laws of the State of Maryland; and the Company has the power to own its property and to carry on its business as now being conducted and is duly qualified to do business and is in good standing in each jurisdiction in which the character of the properties owned or leased by it therein or in which the transaction of its business makes such qualification necessary, except where the failure to be so qualified or to be in good standing, individually or in the aggregate, would not have a Material Adverse Effect. Each of the corporate Subsidiaries of the Company are corporations, each duly organized and validly existing, under the laws of the jurisdiction of its incorporation; each other Subsidiary is an entity duly organized and validly existing under the laws of the jurisdiction of its organization; and each Subsidiary has the power to own its property and to carry on its business as now being conducted and is duly qualified to do business and is in good standing in each jurisdiction in which the character of the properties owned or leased by it therein or in which the transaction of its business makes such qualification necessary, except where the failure to be so organized, existing, qualified, or to be in good standing, individually or in the aggregate, would not have a Material Adverse Effect. (c) Corporate Authority. The Company has full corporate power and authority to execute, deliver and perform its obligations under each of the Credit Documents, to make the borrowings contemplated hereby, and to execute and deliver the Notes and to incur the obligations provided for herein and therein, all of which have been duly authorized by all proper and necessary corporate action. No consent or approval of stockholders is required as a condition to the validity or performance by the Company of its obligations under any of the Credit Documents. (d) Authorizations. All authorizations, consents, approvals, registrations, notices, exemptions and licenses with or from Governmental Authorities and other Persons which are necessary for the borrowing hereunder, the execution and delivery of the Credit Documents, the performance by the Company of its obligations hereunder and thereunder have been effected or obtained and are in full force and effect. (e) Binding Agreements. This Agreement constitutes, and the Notes, when executed and delivered pursuant hereto for value received will constitute, the valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. (f) Litigation. There are no proceedings pending or, so far as the officers of the Company know, proceedings or investigations threatened before any court or arbitrator or before or by any Governmental Authority which, in any one case or in the aggregate, if determined adversely to the interests of the Company or any of its Subsidiaries, would have a Material Adverse Effect or relates to any Credit Document or the lending transactions contemplated hereby and thereby. (g) No Conflicts. There is no statute, regula-tion, rule, order or judgment, and no provision of any material agreement or instrument binding on the Company or any of its Subsidiaries, or affecting their respective properties and no provision of the certificate of incorporation, by-laws, governing partnership agreement or other organizational document of the Company or any of its Subsidiaries, which would prohibit, conflict with or in any way prevent the execution, delivery, or performance of the terms of the Credit Documents or the incurrence of the obligations provided for herein and therein, or result in or require the creation or imposition of any Lien on any of the Company's or its Subsidiaries' properties as a consequence of the execution, delivery and performance of any Credit Document or the lending transactions contemplated hereby and thereby. (h) Financial Condition. (i) The consolidated balance sheet of the Company and its Subsidiaries as of December 31, 1993, together with consolidated statements of income, stockholders' equity and cash flows for the fiscal year then ended, certified by Arthur Andersen & Co., heretofore delivered to the Agent and the Banks, fairly present the consolidated financial condition of the Company and its Subsidiaries and the results of their operations as of the dates and for the periods referred to and have been prepared in accordance with GAAP consistently applied throughout the periods involved. As of the date hereof, there are no material liabilities, direct or indirect, fixed or contingent, of the Company or any of its Subsidiaries as of the dates of such balance sheet which are not reflected therein or in the notes thereto. (ii) There has been no Material Adverse Change. (iii) Since December 31, 1993, there has not occurred any fact, event or condition which could have a Material Adverse Effect. (i) Taxes. The Company and each of its Subsid-iaries has filed or caused to be filed all tax returns which are required to be filed and has paid all taxes required to be shown to be due and payable on said returns or on any assessment made against it or any of its property and all other taxes, assessments, fees, liabilities, penalties or other charges imposed on it or any of its property by any Governmental Authority, except for any taxes, assessments, fees, liabilities, penalties or other charges (x) which are being contested in good faith and for which adequate reserves (in accordance with GAAP) have been established or (y) of which the failure to file or pay would not, individually or in the aggregate, be material and adverse to the Company and its Subsidiaries taken as a whole. (j) Use of Proceeds. The proceeds of the Loans will be used by the Company for general corporate purposes. (k) Margin Regulations. No part of the proceeds of any Loan will be used to purchase or carry, or to reduce or retire or refinance any credit incurred to purchase or carry, or extend credit to others for the purpose of purchasing or carrying, any "margin stock" as defined in Regulation G or Regulation U of the Board of Governors of the Federal Reserve System. (l) No Material Misstatements. All written information relating to the Company and its Subsidiaries heretofore delivered by the Company and its Subsidiaries to the Agent or any Bank in connection with the Credit Documents is complete and correct in all material respects for the purposes for which such information was delivered. (m) Title to Properties; Possession Under Leases. The Company and its Subsidiaries each have good and marketable title to, or valid leasehold interests in, all properties and assets reflected on the consolidated balance sheet of the Company as of December 31, 1993, referred to in Section 5.01(h), except for (x) such properties and assets as have been disposed of in the ordinary course of business or as would have been permitted by this Agreement if then in effect since the date of such financial statements, (y) minor defects in title that do not interfere with the ability of the Company or any of such Subsidiaries to conduct its business as now conducted and (z) such other items as would not, individually or in the aggregate, be material and adverse to the Company and its Subsidiaries taken as a whole. All such assets and properties are free and clear of all Liens, except Liens permitted pursuant to this Agreement. (n) Leases. Except as could not, in any one case individually or all cases in the aggregate, have a Material Adverse Effect, (i) there are no renewal or extension options applicable to any lease to which the Company or any Subsidiary is a party; (ii) to the Company's knowledge, no condition exists which, with the giving of notice or the passage of time, or both, would permit any lessee to cancel its obligations under any lease to which the Company or any Subsidiary is a party; (iii) the Company has received no notice that any lessee intends to cease operations at any leased property prior to the expiration of the term of the applicable lease (other than temporarily due to casualty, remodeling, renovation or any similar cause); and (iv) to the Company's knowledge, none of the lessees or their sub-lessees, if any, under any of the leases to which the Company or any Subsidiary is a party is the subject of any bankruptcy, reorganizations, insolvency or similar proceeding. (o) Conduct of Business. At the date hereof, the Company and its Subsidiaries hold all authorizations, consents, approvals, registrations, franchises, licenses and permits, with or from Governmental Authorities and other Persons as are required or necessary for them to own their properties and conduct their business as now conducted, except for any authorizations, consents, approvals, registrations, franchises, licenses and permits, of which the failure to hold would not, individually or in the aggregate, be material and adverse to the Company and its Subsidiaries taken as a whole. (p) Compliance with Laws and Charter Documents. Neither the Company nor any Subsidiary thereof is in violation of (a) any law, statute, rule, regulation or order of any Governmental Authority (including Environmental Laws) applicable to it or its properties or assets or (b) its certificate of incorporation, by-laws, governing partnership agreement or other organizational document, except for any such violation as would not, individually or in the aggregate, be material and adverse to the Company and its Subsidiaries taken as a whole. (q) ERISA. (i) Neither the Company nor any ERISA Affiliate has engaged in a non-exempt prohibited transaction (as defined in Section 4975 of the Code or Section 406 of ERISA). (ii) Except those items that would not, individually or in the aggregate, be material and adverse to the Company and its Subsidiaries taken as a whole, no Single-Employer Plan had an accumulated funding deficiency, whether or not waived, as of the last day of the most recent fiscal year of such Plan ended prior to the date hereof and neither the Company nor any ERISA Affiliate is (A) required to give security to any Single-Employer Plan pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA, or (B) subject to a lien in favor of such a Plan under Section 302(f) of ERISA. (iii) Except those items that would not, individually or in the aggregate, be material to the Company and its Subsidiaries taken as a whole, no liability under Sections 4062, 4063, 4064 OR 4069 of ERISA has been or is expected by the Company to be incurred by the Company or any ERISA Affiliate with respect to any Single-Employer Plan and neither the Company nor any ERISA Affiliate has incurred or expects to incur any withdrawal liability with respect to any Plan which is a multiemployer plan (as defined in Section 4001(a)(3) of ERISA). (iv) Except those items that would not, individually or in the aggregate, be material to the Company and its Subsidiaries taken as a whole, under each Single-Employer Plan, as of the last day of the most recent plan year ended prior to the date hereof, the actuarially determined present value of all benefit liabilities (as determined on the basis of the actuarial assumptions contained in the Plan's most recent actuarial valuation) did not exceed the fair market value of the asset of such Plan by more than $1,000,000, and there has been no material change in the financial condition of the Plan since the last day of the most recent plan year. (v) Insofar as the representations and warranties of the Company and its ERISA Affiliates contained in clauses (i) and (ii) above relate to any Plan which is a multiemployer plan, such representations and warranties are made to the best knowledge of the Company and its ERISA Affiliates. As used in this Section, (A) "accumulated funding deficiency" shall have the meaning assigned to such term in Section 412 of the Code and Section 302 of ERISA; (ii) "multiemployer plan" and "plan year" shall have the respective meanings assigned to such terms in Section 3 of ERISA; (C) "benefit liabilities" shall have the meaning assigned to such term in Section 4001 of ERISA; (D) "taxable period" shall have the meaning assigned to such term in Section 4975 of the Code; and (E) "withdrawal liability" shall have the meaning assigned to such term in Part 1 of Subtitle E of Title IV of ERISA. (r) Not an Investment Company. Neither the Company nor any of its Subsidiaries is or, after giving effect to the transactions contemplated hereby will be an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended. (s) Environmental Matters. Except as could not, individually or in the aggregate, have a Material Adverse Effect, (i) the businesses as presently or formerly engaged in by the Company and its Subsidiaries are and have been conducted in compliance in all material respects with all applicable Environmental Laws, including, without limitation, having required permits, licenses and other approvals and authorizations, during the time the Company and its Subsidiaries engaged in such businesses, (ii) the properties presently or formerly owned or operated by the Company and its Subsidiaries (including, without limitation, soil, groundwater or surface water on, under or adjacent to the properties, and buildings thereon) (the "Properties) do not, to the Company's knowledge, contain any Hazardous Substance in violation of applicable Environmental Law (provided, however, that with respect to Properties formerly owned or operated by the Company or any Subsidiary, such representation is limited to the period the Company or such Subsidiary owned or operated such Properties), (iii) the Company has not received any notices, demand letters or request for information from any Federal, state, local or foreign governmental entity or any third party indicating that the Company may be in violation of, or liable under, any Environmental Law in connection with the ownership or operation of the Company's businesses, (iv) there are no civil, criminal or administrative actions, suits, demands, claims, hearings, investigations or proceedings pending or, to the Company's knowledge, threatened against the Company or any Subsidiary with respect to the Company or any Subsidiary or the Properties relating to any violation, or alleged violation, of any Environmental Law, (v) no reports have been filed, or, to the Company's knowledge, are required to be filed, by the Company or any Subsidiary concerning the release of any Hazardous Substance or the threatened or actual violation of any Environmental Law on or at the Properties, (vi) to the Company's knowledge, no Hazardous Substance has been disposed of, transferred, released or transported from any of the Properties during the time such Property was owned or operated by the Company or its Subsidiaries in violation of applicable Environmental Law as in effect at the time of said activities, (vii) there have been no environmental investigations, studies, audits, tests, reviews or other analyses conducted by or which are in the possession of the Company relating to the Company or any Subsidiary or the Properties which have not been delivered to the Banks prior to the date hereof, (viii) there are no underground storage tanks on, in or under any of the Properties and no underground storage tanks have been closed or removed from any Properties which are or have been in the ownership of the Company or any Subsidiary (provided, however, that with respect to Properties formerly owned or operated by the Company or any Subsidiary, the representations in this subsection (viii) are limited to the period the Company owned or operated such Properties), (ix) there is no friable asbestos present in any Property presently owned or operated by the Company or any Subsidiary, and no asbestos has been removed from any Property while such Property was owned or operated by the Company, (x) none of the Properties has been used at any time by the Company or any Subsidiary as a sanitary landfill or hazardous waste disposal site and (xi) neither the Company nor any Subsidiary has incurred, and, to the Company's knowledge, none of the Properties are presently subject to, any material liabilities (fixed or contingent) relating to any suit, settlement, court order, administrative order, judgment or claim asserted or arising under any Environmental Law. (t) Insurance. All of the properties (other than properties leased to other Persons) and operations of the Company and its Subsidiaries of a character usually insured by companies of established reputation engaged in the same or a similar business similarly situated are adequately insured, by financially sound and reputable insurers, against loss or damage of the kinds and in amounts customarily insured against by such Persons, and the Company and its Subsidiaries carry, with such insurers in customary amounts, such other insurance as is usually carried by companies of established reputation engaged in the same or a similar business similarly situated. ARTICLE VI CONDITIONS OF LENDING Section 6.01. Conditions to the Availability of the Commitment. The obligations of each Bank hereunder are subject to, and the Banks' Commitment shall not become available until the date on which, each of the following conditions precedent shall have been satisfied or waived in writing by each of the Banks, and upon such satisfaction or waiver each Bank will give a written confirmation of the same to the Company on request: (a) Credit Agreement. The Agent shall have received this Agreement duly executed and delivered by each of the Banks and the Company. (b) Notes. The Agent on behalf of each Bank shall have received Notes in the principal amounts of each such Bank's Commitment, duly executed and delivered by the Company. (c) Good Standing Certificates. The Agent on behalf of the Banks shall have received from the Company copies of good standing certificates, dated within five (5) days prior to the date hereof, confirming the Company's representation as to good standing in Section 5.01(b). (d) Secretary's Certificate. The Agent on behalf of the Banks shall have received from the Company a certificate from the Secretary or Assistant Secretary of the Company, dated as of the date hereof, (i) certifying the incumbency of the officers executing the Credit Documents and all related documentation, (ii) attaching and certifying the resolutions of the Board of Directors of the Company relating to the execution, delivery and performance of this Agreement, and (iii) attaching and certifying the Articles of Incorporation and By-laws of the Company. (e) Opinion of Company Counsel. The Agent shall have received a favorable written opinion, dated the date hereof, of Latham & Watkins, special counsel for the Company, in substantially the form of Exhibit D, and of Semmes, Bowen & Semmes, special Maryland counsel for the Company, in substantially the form of Exhibit E. (f) Other Documents. The Agent shall have received such other certificates and documents as the Agent and the Banks reasonably may require. (g) Litigation. There shall not be pending or threatened any action or proceeding before any court or administrative agency relating to the lending transactions contemplated by this Agreement or any Note which, in the judgment of the Agent or any Bank, could materially impair the ability of the Company to perform its obligations hereunder or thereunder. (h) Agency Fee. The Agent shall have received an Agency Fee (the "Agency Fee"), which is due and payable on the date hereof pursuant to a letter agreement, dated the date hereof, between the Company and the Agent. (i) Termination of Prior Revolving Credit Agreement. Evidence satisfactory to the Agent that the Amended and Restated Credit Agreement, dated as of December 15, 1991, among the Company and the Banks party thereto, shall have been terminated and be of no further force and effect and any and all amounts outstanding thereunder or otherwise payable pursuant thereto shall have been paid. Section 6.02. Conditions to All Loans. The obli-gations of each Bank in connection with each Loan (including the Initial Loan) are subject to the conditions precedent that, on the date of each such Loan and after giving effect thereto, each of the following conditions precedent shall have been satisfied or waived in writing by each Bank, and upon such satisfaction or waiver each Bank will give a written confirmation of the same to the Company on request: (a) Loan Request. For each Loan, the Agent shall have received a Loan Request in substantially the form of Exhibit B. (b) No Default. No Default or Event of Default shall have occurred and be continuing, and the Agent shall have received from the Company a certificate to that effect signed by an authorized officer of the Company. (c) Representations and Warranties; Covenants. The representations and warranties contained in Article V (other than representations and warranties that speak as of a specific date) shall be true and correct with the same effect as though such representations and warranties had been made at the time of such Loan, and the Agent shall have received from the Company a certificate to that effect signed by an authorized officer of the Company. ARTICLE VII COVENANTS Section 7.01. Affirmative Covenants. Until the Termination Date, and thereafter until payment in full of the Notes and all reimbursement obligations and performance of all other obligations of the Company hereunder (other than Unmatured Surviving Obligations), the Company will: (a) Financial Statements; Compliance Certificates. Furnish to the Agent and to each Bank (i) as soon as available, but in no event more than 60 days following the end of each fiscal quarter, copies of all consolidated quarterly balance sheets, income statements and other financial statements and reports of the Company and its Subsidiaries, prepared in a format and in scope consistent with the financial statements and reports of the Company referenced in Section 5.01(h), (ii) as soon as available, but in no event more than 105 days following the end of each fiscal year, a copy of the annual consolidated audit report and financial statements relating to the Company and its Subsidiaries, certified by Arthur Andersen & Co., one of the other "Big Six" accounting firms or another independent certified public accountant reasonably satisfactory to the Agent, prepared in a format and in scope consistent with the December 31, 1993 financial statements and reports of the Company referenced in Section 5.01(h), (iii) as soon as available, but in no event later than 60 days following the end of each fiscal year, an annual forecast for the then-current fiscal year, prepared in a manner and in the form of the forecast provided on the date of this Agreement or in such other form as is reasonably acceptable to the Agent and the Required Banks, (iv) together with each of the financial statements delivered pursuant to clauses (i) and (ii) of this Section 7.01(a), a certificate of the Chief Financial Officer of the Company stating whether as of the last date of such financial statements any event or circumstance exists which constitutes a Default or Event of Default and, if so, stating the facts with respect thereto, together with calculations, where applicable, which establish the Company's (and where applicable, each of the Company's Subsidiaries') compliance therewith, (v) promptly upon receipt thereof, copies of any reports and management letters submitted to the Company or any of its Subsidiaries or their accountants in connection with any annual or interim audit of the books of the Company or its Subsidiaries, together with the responses thereto, if any, and (vi) such additional information, reports or statements as the Agent and the Banks from time to time may reasonably request. (b) Taxes. Pay and discharge, and cause each of its Subsidiaries to pay and discharge, all taxes, assessments and governmental charges upon it, its income and its properties prior to the date on which penalties are attached thereto, (i) unless and to the extent that (x) such taxes, assessments and governmental charges shall be contested in good faith and by appropriate proceedings by the Company or such Subsidiary, as the case may be, (y) adequate reserves (in accordance with GAAP) are maintained by the Company or such Subsidiary, as the case may be, with respect thereto, and (z) any failure to pay and discharge such taxes, assessments and governmental charges could not have a Material Adverse Effect or (ii) unless and to the extent that any failure to pay and discharge such taxes, individually or in the aggregate, would not be material and adverse to the Company and its Subsidiaries taken as a whole. (c) Corporate Existence. Except as permitted by Section 7.02(d) or (e), maintain, and cause each of its Subsidiaries to maintain, its existence in good standing and qualify and remain qualified to do business in each jurisdiction in which the character of the properties owned or leased by it therein or in which the transaction of its business is such that the failure to maintain such existence or to qualify would have a Material Adverse Effect. (d) Maintenance of Records. Will maintain, and will cause each of its Subsidiaries to maintain, complete and accurate books and records in which full and correct entries in conformity with GAAP shall be made of all dealings and transactions in its respective business and activities. (e) Inspection. Permit, and cause each of its Subsidiaries to permit, the Agent and the Banks to have one or more of their officers and employees, or any other Person designated by the Agent or the Banks, visit and inspect any of the properties of the Company and its Subsidiaries (upon reasonable request and notice and in accordance with the agreement, if any, relating to any such property) and to examine the minute books, books of account and other records of the Company and its Subsidiaries and make copies thereof or extracts therefrom, and discuss its affairs, finances and accounts with its officers and, at the request of the Agent or the Banks, with the Company's independent accountants, during normal business hours and at such other reasonable times and as often as the Agent or the Banks reasonably may desire. (f) Conduct of Business. Engage in as its principal business investing in health care related facilities in the United States. (g) Notification of Defaults and Adverse Developments. Notify the Agent (i) promptly, and in any event not later than five Business Days after the discovery by any officer of the Company of the occurrence of any Default or Event of Default; (ii) promptly, and in any event not later than five Business Days after the discovery by any officer of the Company of the occurrence of a Material Adverse Change; (iii) promptly, and in any event not later than ten Business Days after the discovery by any officer of the Company of any material litigation or proceedings that are instituted or (to the knowledge of any officer of the Company) threatened against the Company or its Subsidiaries or any of their respective assets and (iv) promptly, and in any event not later than five Business Days after the discovery by any officer of the Company of the occurrence of each and every event which would be an event of default (or an event which with the giving of notice or lapse of time or both would be an event of default) under any Indebtedness of the Company or any of its Subsidiaries in a principal amount in excess of $5,000,000, such notice to include the names and addresses of the holders of such Indebtedness and the amount thereof. Upon receipt of any such notice of default or adverse development, the Agent shall forthwith give notice to each Bank of the details thereof. (h) Notice of ERISA Events. Within 10 days after the Company or any ERISA Affiliates knows that any of the events described in the succeeding two sentences have occurred and such occurrence or occurrences, individually or in the aggregate, could be material and adverse to the Company and its Subsidiaries taken as a whole, the Company shall furnish to the Agent a statement signed by a senior officer of the Company describing such event in reasonable detail and the action, if any, proposed to be taken with respect thereto. The events referred to in the preceding sentence are, with respect to any Single-Employer Plan: (i) any reportable event described in Section 4043 of ERISA, other than a reportable event for which the 30-day notice requirement has been waived by the PBGC; (ii) the filing with any affected party as such term is defined in Section 4001 of ERISA of a notice of intent to terminate the Plan; (iii) receipt of notice of an application by the PBGC to institute proceedings to terminate the Plan pursuant to Section 4042 of ERISA; (iv) withdrawal from or termination of the Plan during a plan year for which the Company or any ERISA Affiliate is or would be subject to liability under Sections 4063 or 4064 of ERISA; (v) cessation of operations by the Company or any ERISA Affiliate at a facility under the circumstances described in Section 4062(e) of ERISA; (vi) adoption of an amendment to a Plan which is a Single-Employer Plan which would require security to be given to the Plan pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA; and (vii) failure by the Company or any ERISA Affiliate to make payment to a Single- Employer Plan which would give rise to a lien in favor of the Plan under Section 302(f) of ERISA. Such events shall also include receipt of notice of withdrawal liability pursuant to Section 4202 of ERISA. (i) Environmental Matters. (i) Comply, and cause its Subsidiaries to comply, in all material respects with all applicable Environmental Laws, (ii) notify the Agent promptly after receiving notice or becoming aware of any Adverse Environmental Condition or Environmental Claim that could have a Material Adverse Effect, and (iii) promptly forward to Agent a copy of any Environmental Claim, order, notice, permit, application, or any other communication or report received by Company or any of its Subsidiaries in connection with any such matters as they may affect such premises, if material. (j) Insurance on Leased Properties. Use its, and cause its Subsidiaries to use their, commercially reasonable best efforts to ensure that each lessee of a property owned in whole or in part, directly or indirectly, by the Company or any Subsidiary, and each mortgagor of a property on which the Company or any Subsidiary holds a mortgage, has, and until the Termination Date will keep, in place adequate insurance which names the Company or such Subsidiary as a loss payee. For the purposes of the preceding sentence "adequate insurance" shall mean insurance, with financially sound and reputable insurers in such amounts and insuring against such risks as are customarily maintained by similar businesses. (k) Further Assurances. The Company agrees to do all acts and things, as may be required by law or as, in the reasonable judgement of the Agent, may be necessary or advisable to carry out the intent and purpose of this Agreement. Section 7.02. Negative Covenants. Until the Termination Date, and thereafter until payment in full of the Notes and all reimbursement obligations and performance of all other obligations of the Company hereunder (other than Unmatured Surviving Obligations), the Company will not: (a) Secured Indebtedness. Create, incur, assume or suffer to exist any Indebtedness of the Company secured by mortgages, encumbrances or Liens, except Indebtedness secured by mortgages, encumbrances or Liens which, together with the Indebtedness of the Subsidiaries permitted under Section 7.02(b), does not exceed 40% of Consolidated Total Assets, provided, however, that the amount of any such secured Indebtedness that is used to repay unsecured Indebtedness of the Company and its Subsidiaries (other than Indebtedness to the Banks hereunder) shall not exceed 20% of Consolidated Total Assets. (b) Subsidiary Indebtedness. Permit any Subsidiary to create, incur, assume or suffer to exist any Indebtedness, except Indebtedness which, together with outstanding Indebtedness of the Company permitted under Section 7.02(a) and all outstanding Indebtedness of other Subsidiaries, does not exceed 40% of Consolidated Total Assets. (c) Mortgages and Pledges. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Lien of any kind upon or in any of its property or assets, whether now owned or hereafter acquired, other than (i) Permitted Encumbrances and (ii) Liens granted in order to secure Indebtedness permitted under Section 7.02(a) or Section 7.02(b); provided, however, that the aggregate value of property subject to Liens granted pursuant to clause (ii) shall not exceed 40% of Total Consolidated Assets. (d) Merger, Consolidation or Acquisition of Assets. Enter into any merger or consolidation or acquire all or substantially all of the assets of any person, firm, joint venture or corporation, or permit any Subsidiary so to do, except that: (i) a Wholly owned Subsidiary may be merged or consolidated with one or more other Wholly owned Subsidiaries or into the Company; (ii) the Company or any Subsidiary may merge, consolidate or acquire assets in the ordinary course of its business; (iii) the Company may be merged or consolidated with other entities so long as: (A) the Company is the surviving corporation of such merger or consolidation; (B) at the time of such merger or consolidation and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing; and (C) the surviving corporation is engaged substantially in the same line of business as the Company; and (iv) the Company or any Subsidiary may acquire any interest in any person, firm, joint venture or corporation so long as (A) the amount of the total consideration (including any Indebtedness or liabilities incurred or assumed in connection therewith) paid in connection with such merger or consolidation of such acquired interest is not greater than 10% of Consolidated Stockholders' Equity, determined according to the last financial statements delivered pursuant to Section 7.01(a) and (B) the acquired entity is engaged in substantially the same line of business as the Company. (e) Sales of Assets. Sell, lease or otherwise dispose of all or any substantial part of its assets, or permit any Subsidiary so to do, other than in the ordinary course of the Company's business or as otherwise expressly permitted hereunder. (f) Loans and Investments. Purchase or acquire the obligations or stock of, or any other interest in, or make loans or advances to, any Person, or permit any Subsidiary so to do, except (i) securities issued or fully guaranteed or insured by the United States Government or any agency thereof and backed by the full faith and credit of the United States having a maturity of not more than one year from the date of acquisition; (ii) marketable obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year of the date of acquisition thereof and, at the time of acquisition, rated at least A by S&P or A by Moody's; (iii) repurchase agreements, tax exempt investments, certificates of deposit, time deposits, Eurodollar time deposits or bankers' acceptances issued by (x) any Bank, (y) any United States commercial bank having combined capital and surplus of note less than $100,000,000 and having commercial paper rated at least A-1 by S&P or P-1 by Moody's or [(z) any other Bank having an IBCA Bank Analysis rating of B or better]; (iv) certificates of deposit in an amount less than or equal to $100,000 in the aggregate issued by any other bank insured by the Federal Deposit Insurance Corporation; (v) commercial paper or bankers' acceptances of an issuer rated at least A-1 by S&P or P-1 by Moody's; (vi) money market funds invested in one or more of (i) through (v) above; (vii) loans to and investments by the Company in any Subsidiary or loans from any Subsidiary to the Company; and (viii) any such loans or investments made in the ordinary course of the Company's or a Subsidiary's business. (g) Transactions with Affiliates. Enter into any transactions, including without limitation, the purchase, sale or exchange of property or the rendering of any service, with any Affiliate, or permit any Subsidiary so to do, except in the ordinary course of and pursuant to the reasonable requirements of its business and upon fair and reasonable terms no less favorable to the Company or such Subsidiary, as the case may be, than could be obtained in an arm's length transaction with a person not an Affiliate. (h) Stock and Equity Interests of Subsidiaries. Sell or otherwise dispose of any shares of capital stock or other equity interests of any Subsidiary (except (x) in connection with a merger or consolidation of a Wholly owned Subsidiary permitted by Section 7.02(d) or with the dissolution of any Subsidiary or (y) a sale in accordance with Section 7.02(e) of any equity interest in any Subsidiary that is not material to the Company and its Subsidiaries taken as a whole) or permit any Subsidiary to issue any additional shares of its capital stock or other equity interests except pro rata to its stockholders or equity holders. (i) Environmental Matters. Violate any Environmental Law or incur any liabilities under any Environmental Law, except to the extent that any such violation or incurrence could not have a Material Adverse Effect. (j) Loans and Money Market Loans. Incur or suffer to remain outstanding, or permit the Subsidiaries to incur or suffer to remain outstanding at any time, Loans plus Money Market Loans in an aggregate amount in excess of $100,000,000. Section 7.03. Financial Covenants. Until the Termination Date, and thereafter until payment in full of the Notes and all reimbursement obligations and performance of all other obligations of the Company hereunder (other than Unmatured Surviving Obligations), (a) Consolidated Stockholders' Equity. The Company will maintain Consolidated Stockholders' Equity of not less than $200,000,000. (b) Consolidated Senior Debt to Consolidated Stockholders' Equity Ratio. The Company will maintain a ratio of Consolidated Senior Debt to Consolidated Stockholders' Equity of not greater than 1.50:1.00. (c) Consolidated Debt to Consolidated Stockholders' Equity Ratio. The Company will maintain a ratio of Consolidated Debt to Consolidated Stockholders' Equity of not greater than 2.00:1.00. (d) Interest Coverage Ratio. The Company will not permit the ratio of (i) the sum of Consolidated Fundsfrom Operations and Consolidated Interest Expense to (ii) Consolidated Interest Expense for the four quarter period ending on the last day of each fiscal quarter to be less than 2.25:1.00. ARTICLE VIII EVENTS OF DEFAULT Section 8.01. Events of Default. If one or more of the following events (each, an "Event of Default") shall occur: (a) Default shall be made in the payment of any installment of principal of any Note when due and payable, whether at maturity, by notice of intention to prepay or otherwise; or default shall be made in the payment of any installment of interest upon any Note when due and payable, and such default shall have continued for five days; or (b) Default shall be made in the payment of the Facility Fee or any other fee or amount payable hereunder when due and payable and such default shall have continued for five days; or (c) Default shall be made in the due observance or performance of any term, covenant, or agreement contained in Section 7.01(g) or in Section 7.03; or (d) Default shall be made in the due observance or performance of any other term, covenant or agreement contained in this Agreement, and such default shall have continued unremedied for a period of 30 days after any officer of the Company becomes aware, or should have become aware, of such default; or (e) Any representation or warranty made or deemed made by the Company herein or any statement or representation made in any certificate or report delivered by or on behalf of the Company in connection herewith or in connection with any Note shall prove to have been false or misleading in any material respect when made; or (f) Any obligation (other than its obligation hereunder) of the Company or any of its Subsidiaries for the payment of Indebtedness in excess of $5,000,000 is not paid when due or within any grace period for the payment therefor or becomes or is declared to be due and payable prior to the expressed maturity thereof, or there shall have occurred an event which, with the giving of notice or lapse of time, or both, would cause any such obligation to become, or allow any such obligation to be declared to be, due and payable; or (g) An involuntary case or other proceeding shall be commenced against the Company or any Subsidiary seeking liquidation, reorganization or other relief with respect to it or its debts under any applicable Federal or State bankruptcy, insolvency, reorganization or similar law now or hereafter in effect or seeking the appointment of a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed, or an order or decree approving or ordering any of the foregoing shall be entered and continued unstayed and in effect, in any such event, for a period of 60 days; or (h) The commencement by the Company or any of its Subsidiaries of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by any of them to the entry of a decree or order for relief in respect of the Company or any of its Subsidiaries in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against any of them, or the filing by any of them of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or the consent by any of them to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Company or any of its Subsidiaries or any substantial part of their respective property, or the making by any of them of an assignment for the benefit of creditors, or the admission by any of them in writing of inability to pay their debts generally as they become due, or the taking of corporate action by the Company or any of its Subsidiaries in furtherance of any such action; or (i) One or more judgments against the Company or any of its Subsidiaries or attachments against its property, which in the aggregate exceed $5,000,000, or the operation or result of which could be to interfere materially and adversely with the conduct of the business of the Company or any of its Subsidiaries, remain unpaid, unstayed on appeal, undischarged, unbonded, or undismissed for a period of 60 days; or (j) With respect to any Single-Employer Plan, any of the following shall occur: (A) the filing with any affected party as such term is defined in Section 4001 of ERISA of a notice of intent to terminate the Plan, or receipt of notice of an application by the PBGC to institute proceedings to terminate the Plan pursuant to Section 4042 of ERISA; in each case, if the amount of unfunded benefit liabilities, as such term is defined in Section 4001(a)(18) of ERISA, of the Plan as of the date such event occurs is more than $5,000,000, (B) the Company or any ERISA Affiliate incurs liability under Sections 4062(e), 4063 or 4064 of ERISA in an amount in excess of $5,000,000, (C) an amendment is adopted to the Plan which would require security to be given to the Plan pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA in an amount in excess of $5,000,000, or (D) the Company or any ERISA Affiliate fails to make a payment to the Plan which would give rise to a lien in favor of the Plan under Section 302(f) of ERISA in an amount in excess of $5,000,000; or (k) Any court or governmental or regulatory authority shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, judgment, decree, injunction or other order (whether temporary, preliminary or permanent) which is in effect and which prohibits, enjoins or otherwise restricts in a manner that would have a Material Adverse Effect on any of the lending transactions contemplated under the Credit Documents; or (l) The Company fails to maintain its status as a "real estate investment trust", as such term is defined in the Code; then (i) upon the happening of any of the foregoing Events of Default, the obligation of the Banks to make any further Loans under this Agreement shall terminate upon declaration to that effect delivered by the Agent or the Required Banks to the Company and (ii) upon the happening of any of the foregoing Events of Default which shall be continuing, the Notes shall become and be immediately due and payable upon declaration to that effect delivered by the Agent or the Required Banks to the Company; provided that upon the happening of any event specified in Section 8.01(g) or (h), the Notes shall become immediately due and payable and the obligation of the Banks to make any further Loans hereunder shall terminate without declaration or other notice to the Company. The Company expressly waives any presentment, demand, protest or other notice of any kind. ARTICLE IX THE AGENT AND THE BANKS Section 9.01. The Agency and Co-Agency. (a) Each Bank appoints The Bank of New York as its Agent hereunder and irrevocably authorizes the Agent to take such action on its behalf and to exercise such powers hereunder as are specifically delegated to the Agent by the terms hereof, together with such powers as are reasonably incidental hereto, and the Agent hereby accepts such appointment subject to the terms hereof. The relationship between the Agent and the Banks shall be that of agent and principal only and nothing herein shall be construed to constitute the Agent a trustee for any Bank nor to impose on the Agent duties or obligations other than those expressly provided for herein. (b) Each Bank appoints NationsBank as the Co-Agent hereunder and the Co-Agent hereby accepts such appointment subject to the terms hereof. The Co- Agent, as such, shall have no duties or obligations whatsoever under this Agreement or any Loan Document or any other document or any matter related hereto or thereto, but shall nevertheless be entitled to all of the indemnities and other protection afforded to the Administrative Agent under this Article IX. Section 9.02. The Agent's Duties. The Agent shall promptly forward to each Bank copies, or notify each Bank as to the contents, of all notices and other communications received from the Company pursuant to the terms of this Agreement and the Notes and, in the event that the Company fails to pay when due the principal of or interest on any Loan, the Agent shall promptly give notice thereof to the Banks. As to any other matter not expressly provided for herein or therein, the Agent shall have no duty to act or refrain from acting with respect to the Company, except upon the instructions of the Required Banks. The Agent shall not be bound by any waiver, amendment, supplement, or modification of this Agreement or any Note which affects its duties hereunder and thereunder, unless it shall have given its prior written consent thereto. The Agent shall have no duty to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements binding on the Company pursuant to this Agreement or any Note nor shall it be deemed to have knowledge of the occurrence of any Default or Event of Default (other than a failure of the Company to pay when due the principal or interest on any Loan), unless it shall have received written notice from the Company or a Bank specifying such Default or Event of Default and stating that such notice is a "Notice of Default". Section 9.03. Sharing of Payment and Expenses. All funds for the account of the Banks received by the Agent in respect of payments made by the Company pursuant to, or from any Person on account of, this Agreement or any Note shall be distributed forthwith by the Agent among the Banks, in like currency and funds as received, ratably in proportion to their respective interests therein. In the event that any Bank shall receive from the Company or any other source any payment of, on account of, or for or under this Agreement or any Note (whether received pursuant to the exercise of any right of set-off, banker's lien, realization upon any security held for or appropriated to such obligation or otherwise as permitted by law) other than in proportion to its Pro Rata Share, then such Bank shall purchase from each other Bank so much of its interest in obligations of the Company as shall be necessary in order that each Bank shall share such payment with each of the other Banks in proportion to each Bank's Pro Rata Share; provided that no Bank shall purchase any interest of any Bank that does not, to the extent that it may lawfully do so, set-off against the balance of any deposit accounts maintained with it the obligations due to it under this Agreement. In the event that any purchasing Bank shall be required to return any excess payment received by it, the purchase shall be rescinded and the purchase price restored to the extent of such return, but without interest. Section 9.04. The Agent's Liabilities. Each of the Banks and the Company agrees that (i) neither the Agent in such capacity nor any of its officers or employees shall be liable for any action taken or omitted to be taken by any of them hereunder except for its or their own gross negligence or wilful misconduct, (ii) neither the Agent in such capacity nor any of its officers or employees shall be liable for any action taken or omitted to be taken by any of them in good faith in reliance upon the advice of counsel, independent public accountants or other experts selected by the Agent, and (iii) the Agent in such capacity shall be entitled to rely upon any notice, consent, certificate, statement or other document (including any telegram, cable, telex, facsimile or telephone transmission) believed by it to be genuine and correct and to have been signed and/or sent by the proper Persons. Section 9.05. The Agent as a Bank. The Agent shall have the same rights and powers hereunder as any other Bank and may exercise the same as though it were not the Agent, and the terms "Bank" or "Banks", unless the context otherwise indicated, include the Agent in its individual capacity. The Agent may, without any liability to account, maintain deposits or credit balances for, invest in, lend money to and generally engage in any kind of banking business with the Company or any Subsidiary or affiliate of the Company as if it were any other Bank and without any duty to account therefor to the other Banks. Section 9.06. Bank Credit Decision. Neither the Agent nor any of its officers or employees has any responsibility for, gives any guaranty in respect of, nor makes any representation to the Banks as to, (i) the condition, financial or otherwise, of the Company or any Subsidiary thereof or the truth of any representation or warranty given or made herein or in any other Credit Document, or in connection herewith or therewith or (ii) the validity, execution, sufficiency, effectiveness, construction, adequacy, enforceability or value of this Agreement or any other Credit Document or any other document or instrument related hereto or thereto. Except as specifically provided herein and in the other Credit Documents to which the Agent is a party, the Agent shall have no duty or responsibility, either initially or on a continuing basis, to provide any Bank with any credit or other information with respect to the operations, business, property, condition or creditworthiness of the Company or any of its Subsidiaries, whether such information comes into the Agent's possession on or before the date hereof or at any time thereafter. Each Bank acknowledges that it has, independently and without reliance upon the Agent or any other Bank, based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Bank also acknowledges that it will independently and without reliance upon the Agent or any other Bank, based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement or any Note. Section 9.07. Indemnification. Each Bank agrees (which agreement shall survive payment of the Loans and the Notes) to indemnify the Agent, to the extent not reimbursed by the Company, ratably in accordance with their respective Commitments, from and against any and all liabilities, obligations, losses, claims, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Agent in any way relating to or arising out of this Agreement or any other Credit Document, or any action taken or omitted to be taken by the Agent hereunder or thereunder; provided that no Bank shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or wilful misconduct of the Agent or any of its officers or employees. Without limiting the foregoing, each Bank agrees to reimburse the Agent promptly upon demand for its ratable share of any out- of-pocket expenses (including counsel fees) incurred by the Agent in such capacity in connection with the preparation, execution or enforcement of, or legal advice in respect of rights or responsibilities under, this Agreement or any Note or any amendments or supplements hereto or thereto, to the extent that the Agent is not reimbursed for such expenses by the Company. Section 9.08. Successor Agent. The Agent may resign at any time by giving written notice thereof to the Banks and the Company. Upon any such resignation, the Required Banks shall have the right to appoint a successor Agent. If no successor Agent shall have been so appointed by the Required Banks and shall have accepted such appointment within 30 days after the resigning Agent's giving of notice of resignation, or the Required Banks' giving notice of removal, as the case may be, the resigning Agent may, on behalf of the Banks, appoint a successor Agent, which shall be a commercial bank organized under the laws of the United States of America or of any State thereof and having a combined capital and surplus of at least $250,000,000. Upon the acceptance of any appointment as Agent hereunder by a successor Agent, such successor Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the resigned or removed Agent, and the resigned or removed Agent shall be discharged from its duties and obligations under this Agreement. After any Agent's resignation hereunder as Agent, the provisions of this Article IX shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement. ARTICLE X CONSENT TO JURISDICTION; JUDGMENT CURRENCY Section 10.01. Consent to Jurisdiction. The Company hereby irrevocably submits to the non-exclusive jurisdiction of the State of New York for the purpose of any suit, action, proceeding or judgment relating to or arising out of this Agreement and each Note. The Company hereby appoints Prentiss-Hall Corporation System, Inc., with offices on the date hereof at 15 Columbus Circle, New York, New York 10023, as its authorized agent on whom process may be served in any action which may be instituted against it by the Agent or the Banks in any state or federal court in the Borough of Manhattan, The City of New York, arising out of or relating to any Loan or this Agreement and each Note. Service of process upon such authorized agent and written notice of such service to the Company shall be deemed in every respect effective service of process upon the Company, and the Company hereby irrevocably consents to the jurisdiction of any such court in any such action and to the laying of venue in the Borough of Manhattan, The City of New York. The Company hereby irrevocably waives any objection to the laying of the venue of any such suit, action or proceeding brought in the aforesaid courts and hereby irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Notwithstanding the foregoing, nothing herein shall in any way affect the right of the Agent or any Bank to bring any action arising out of or relating to the Loans or this Agreement and each Note in any competent court elsewhere having jurisdiction over the Company or its property. ARTICLE XI MISCELLANEOUS Section 11.01. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA. Section 11.02. Set-off. Each Bank is authorized to set off and apply any and all deposits at any time held by such Bank against obligations of the Company under the Credit Documents. Section 11.03. Expenses. The Company agrees to pay (i) all reasonable out-of-pocket expenses of the Agent (including the reasonable fees and expenses of Sullivan & Cromwell, as counsel to the Agent) in connection with the preparation of this Agreement and the other Credit Documents and any amendments, supplements or modifications hereto or thereto, (ii) all reasonable out-of-pocket expenses incurred by the Agent and any Bank, including reasonable fees and disbursements of counsel, in connection with the execution, administration and enforcement of any provisions of this Agreement, the Notes or any amendment or supplement hereto or thereto and (iii) all reasonable out- of-pocket expenses of the Agent, including reasonable fees and disbursements of counsel, in connection with the syndication of the Loans. The Company shall pay any transfer taxes, documentary taxes, assessments or charges made by any Governmental Authority by reason of the execution and delivery of this Agreement or the Notes. Section 11.04. Amendments. Any provision of this Agreement or the Notes may be amended or waived if, but only if, such amendment or waiver is in writing and is signed by the Company and the Required Banks (and, if the rights or duties of the Agent are affected thereby, by the Agent); provided that no such amendment, waiver or modification shall, unless signed by all the Banks, (i) increase or decrease the Commitment of any Bank, subject any Bank to any additional obligation or change the several nature or the obligations of each Bank, (ii) reduce the principal of or rate of interest on any Loan (other than interest payable pursuant to Section 3.05) or any fees hereunder, (iii) except as otherwise provided in Section 11.12, postpone the date fixed for any payment of principal of or interest on any Loan or any fees hereunder or for any reduction or termination of any Commitment, (iv) except as otherwise may result from actions taken in accordance with Section 11.12, change the percentage of any of the Commitments or of the aggregate unpaid principal amount of the Notes, or the number of Banks, which shall be required for the Banks or any of them to take any action under this Section or any other provision of this Agreement, or (v) amend or waive the provisions of Article IV or of this Section 11.04. Section 11.05. Cumulative Rights and No Waiver. Each and every right granted to the Agent and the Banks hereunder or under any other document delivered hereunder or in connection herewith, or allowed them by law or equity, shall be cumulative and may be exercised from time to time. No failure on the part of the Agent or any Bank to exercise, and no delay in exercising, any right will operate as a waiver thereof, nor will any single or partial exercise by the Agent or any Bank of any right preclude any other or future exercise thereof or the exercise of any other right. Section 11.06. Notices. Any communication, demand or notice to be given hereunder or with respect to the Notes will be duly given when delivered in writing or by telecopy to a party at its address as indicated below, except that notices from the Company pursuant to Section 2.02 will not be effective until received by the Agent. A communication, demand or notice given pursuant to this Section 11.06 shall be addressed: If to the Company, at 10990 Wilshire Boulevard Suite 1200 Los Angeles, California 90024 Telecopy: (310) 444-7817 Attention: Treasurer with copies to: Latham & Watkins 633 West Fifth Street Suite 4000 Los Angeles, California 90071 Attention: Glen B. Collyer/David H. Vena If to the Agent, at its address as indicated on the signature pages hereof, with a copy to: Sullivan & Cromwell 444 South Flower Street Los Angeles, California 90071 Telecopy: (213) 683-0457 Attention: Alison Ressler If to any Bank, at its address as indicated on the signature pages hereof. Unless otherwise provided to the contrary herein, any notice which is required to be given in writing pursuant to the terms of this Agreement may be given by telex, telecopy or facsimile transmission. Section 11.07. Separability. In case any one or more of the provisions contained in this Agreement shall be invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. Section 11.08. Assignments and Participations. (a) This Agreement shall be binding upon and inure to the benefit of the Company and the Banks and their respective successors and assigns, except that the Company may not assign any of its rights hereunder without the prior written consent of the Banks. (b) Any Bank may at any time grant to one or more banks or other institutions (each a "Participant") participating interests in its Commitment or any or all of its Loans. Each Bank agrees to give to the Company, with a copy to the Agent, prior written notice of any grant of a participating interest hereunder, which notice shall include the name of the Participant and the amount of the interest being granted. In the event of any such grant by a Bank of a participating interest to a Participant, whether or not upon notice to the Company and the Agent, such Bank shall remain responsible for the performance of its obligations hereunder, and the Company and the Agent shall continue to deal solely and directly with such Bank in connection with such Bank's rights and obligations under this Agreement. Any agreement pursuant to which any Bank may grant such a participating interest shall provide that such Bank shall retain the sole right and responsibility to enforce the obligations of the Company hereunder including the right to approve any amendment, modification or waiver of any provision of this Agreement; provided that such participation agreement may provide that such Bank will not agree to any modification, amendment or waiver of this Agreement described in clauses (i) through (vi), inclusive, of Section 11.04 without the consent of the Participant. Subject to Section 11.08(e), the Company agrees that each Participant shall be entitled to the benefits of Sections 4.03, 4.04 and 11.04 with respect to its participating interest. An assignment or other transfer which is not permitted by clause (c) below shall be given effect for purposes of this Agreement only to the extent of a participating interest granted in accordance with this clause (b). (c) Any Bank may at any time assign to one or more banks or other institutions (each an "Assignee") all, or a proportionate part of all, of its rights and obligations under this Agreement and the Notes, and such Assignee shall assume such rights and obligations, pursuant to an instrument executed by such Assignee and such transferor Bank, with (and subject to) the signed consent of the Company and the Agent (which consent shall not be unreasonably withheld); provided, however, any such assignment shall be in the minimum aggregate amount of $10,000,000; provided, further, that the foregoing consent requirement shall not be applicable in the case of, and this subsection (c) shall not restrict, an assignment or other transfer by any Bank to an affiliate of such Bank or to a Federal Reserve Bank. Upon (i) execution and delivery of such an instrument, (ii) payment by such Assignee to such transferor Bank of an amount equal to the purchase price agreed between such transferor Bank and such Assignee and (iii) payment by the transferee Bank or transferor Bank to the Agent of an administrative fee in the amount of $1,500, such Assignee shall be a Bank party to this Agreement and shall have all the rights and obligations of a Bank with a Commitment as set forth in such instrument of assumption, and the transferor Bank shall be released from its obligations hereunder to a corresponding extent, and no further consent or action by any party shall be required. Upon the consummation of any assignment pursuant to this subsection (c), the transferor Bank, the Agent and the Company shall make appropriate arrangements so that, if required, new Notes are issued to the Assignee. (d) No Assignee, Participant or other transferee of any Bank's rights shall be entitled to receive any greater payment under Section 4.03 or 4.04 than such Bank would have been entitled to receive with respect to the rights transferred, unless such transfer is made with the Company's prior written consent or by reason of the provisions of Section 4.04 requiring such Bank to designate a different lending office under certain circumstances or at a time when the circumstances giving rise to such payment did not exist. (e) No Participant of any Bank shall be entitled to receive any greater payment under Section 4.03, Section 4.04 or Section 11.04 than such Bank would have been entitled to receive if it had not granted a participation to such Participant. Section 11.09. WAIVER OF JURY TRIAL. THE COMPANY, THE AGENT AND EACH OF THE BANKS HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT, THE NOTES OR THE RELATIONSHIPS ESTABLISHED HEREUNDER. Section 11.10. Confidentiality. Except as may be required to enforce the rights and duties established hereunder, the parties hereto shall preserve in a confidential manner all information received from the other pursuant to this Agreement, the Notes and the transactions contemplated hereunder and thereunder, and shall not disclose such information except to those persons with which a confidential relationship is maintained (including regulators, legal counsel, accountants, or designated agents), or where required by law. Section 11.11. Indemnity. The Company agrees to indemnify the Agent and each of the Banks and their respective directors, officers, employees and agents (each such person being called an "Indemnitee") against, and to hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities of any party other than the Company and related expenses, including reasonable counsel fees and expenses incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any Note or any agreement or instrument contemplated hereby or thereby, the performance by the parties thereto of their respective obligations hereunder or thereunder or the consummation of the transactions and the other transactions contemplated hereby or thereby, (ii) the use of the proceeds of the Loans or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and notwithstanding that any claim, proceeding, investigation or litigation relating to any such losses, claims, damages, liabilities or expenses is or was brought by a shareholder, creditor, employee or officer of the Company; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or wilful misconduct of any Indemnitee. The provisions of this Section 11.11 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Loans, the reduction or cancellation of the Commitment, the invalidity or unenforceability of any term or provision of this Agreement or any Note, or any investigation made by or on behalf of the Banks. All amounts due under this Section 11.11 shall be payable in immediately available funds upon written demand therefor. Section 11.12. Extension of Termination Dates; Removal of Banks; Substitutions of Banks. (a) In order to provide for a facility with a term of three years from the date of this Agreement and any extension thereof pursuant to this Section 11.12, not later than January 31, 1995 and not later than each subsequent January 31 thereafter, the Company may, at its option, request all the Banks then party to this Agreement to extend their scheduled Termination Dates by one calendar year by means of a letter, addressed to each such Bank and the Agent. Each such Bank electing (in its sole discretion) so to extend its scheduled Termination Date shall execute and deliver prior to the February 28 following such request counterparts of such letter to the Company and the Agent, whereupon (unless Banks with an aggregate percentage of the Total Commitment in excess of 25% decline to extend their respective scheduled Termination Dates, in which event the Agent shall notify all the Banks thereof), such Bank's scheduled Termination Date shall be extended to March 31 of the year immediately succeeding such Bank's then-current scheduled Termination Date. (b) With respect to any Bank which has declined to extend such Bank's scheduled Termination Date and Banks with an aggregate percentage of the Total Commitment not in excess of 25% have not declined to extend their respective Termination Dates, the Company may in its discretion, upon not less than 30 days' prior written notice to the Agent and each Bank, remove such Bank as a party hereto. Each such notice shall specify the date of such removal (which shall be a Business Day), which shall thereupon become the scheduled Termination Date for such Bank. (c) In the event that any Bank does not extend its scheduled Termination Date pursuant to subsection (a) above or is the subject of a notice of removal pursuant to subsection (b) above, then, at any time prior to the Termination Date for such Bank (a "Terminating Bank"), the Company may, at its option, arrange to have one or more other financial institutions acceptable to the Agent (which may be a Bank or Banks and each of which shall herein be called a "Successor Bank") succeed to all or a percentage of the Terminating Bank's outstanding Loans, if any, and rights under this Agreement and assume all or a like percentage (as the case may be) of such Terminating Bank's Commitment and other obligations hereunder, as if (i) in the case of any Bank electing not to extend its scheduled Termination Date pursuant to subsection (a) above, such Successor Bank had extended its scheduled Termination Date pursuant to such subsection (a) and (ii) in the case of any Bank that is the subject of a notice of removal pursuant to subsection (b) above, no such notice of removal had been given by the Company. Such succession and assumption shall be effected by means of one or more agreements supplemental to this Agreement among the Terminating Bank, the Successor Bank, the Company and the Agent. On and as of the effective date of each such supplemental agreement, each Successor Bank party thereto shall be and become a Bank for all purposes of this Agreement and to the same extent as any other Bank hereunder and shall be bound by and entitled to the benefits of this Agreement in the same manner as any other Bank. (d) On the Termination Date for any Terminating Bank, such Terminating Bank's Commitment shall terminate and, except to the extent assigned pursuant to subsection (c) above, the Company shall pay in full all of such Terminating Bank's Loans and all other amounts payable to such Bank hereunder, including any amounts payable pursuant to Section 4.3 on account of such payment. (e) To the extent that all or a portion of any Terminating Bank's obligations are not assumed pursuant to subsection (c) above, the Total Commitment shall be reduced on the applicable Termination Date and each Bank's percentage of the reduced Total Commitment shall be revised pro rata to reflect such Terminating Bank's absence. Section 11.13. Knowledge of the Company. As used in this Agreement, knowledge of the Company shall mean to the best of any officer's knowledge, after a reasonable investigation. Section 11.14. Execution in Counterparts. This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all the counterparts shall together constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written. HEALTH CARE PROPERTY INVESTORS, INC. By:___________________________ Name: James G. Reynolds Title: Senior Vice President and Chief Financial Officer THE BANK OF NEW YORK, as Agent for the Banks By:___________________________ Name: Lisa Y. Brown Title: Vice President Address for Notices: One Wall Street 18th Floor New York, NY 10286 Attn: Kalyani Bose Agency Function Administration Fax: (212) 635-6365 With a copy to: The Bank of New York 10990 Wilshire Boulevard Suite 1700 Los Angeles, CA 90024 Attn: Lisa Y. Brown Vice President Fax: (310) 996-8667 Commitment: $25,000,000 THE BANK OF NEW YORK as a Bank By:___________________________ Name: Lisa Y. Brown Title: Vice President Address for Notices: One Wall Street 18th Floor New York, NY 10286 Attn: Kalyani Bose Agency Function Administration Fax: (212) 635-6365 With a copy to: The Bank of New York 10990 Wilshire Boulevard Suite 1700 Los Angeles, CA 90024 Attn: Lisa Y. Brown Vice President Fax: (310) 996-8667 Eurodollar Lending Office: One Wall Street 18th Floor New York, NY 10286 Attn: Fax: Commitment: $10,000,000 WELLS FARGO BANK By:___________________________ Name: Title: Address for Notices: Wells Fargo Bank 420 Montgomery Street San Francisco, CA 94163 Attn: Brian McDonald Fax: (415) 421-1352 Eurodollar Lending Office: Wells Fargo Bank 420 Montgomery Street San Francisco, CA 94163 Attn: Marilyn Jones Fax: (415) 989-4319 Commitment: $10,000,000 KREDIETBANK, N.V. By:___________________________ Name: Title: By:___________________________ Name: Title: Address for Notices: 125 West 55th Street 10th Floor New York, NY 10019 Attn: Robert Snauffer Fax: (212) 956-5580 With a copy to: 550 S. Hope Street, #1775 Los Angeles, CA 90071 Attn: Roxanne Cheng Vice President Fax: (212) 687-3885 Eurodollar Lending Office: 550 S. Hope Street, #1775 Los Angeles, CA 90071 Attn: Roxanne Cheng Vice President Fax: (212) 687-3885 Commitment: $10,000,000 THE LONG-TERM CREDIT BANK OF JAPAN, LTD., Los Angeles Agency By:___________________________ Name: Title: By:__________________________ Name: Title: Address for Notices: 444 S. Flower Street Suite 3700 Los Angeles, CA 90071 Attn: Mr. Takaomi Tomioka Vice President Fax: (213) 622-6908 Eurodollar Lending Office: 444 S. Flower Street Suite 3700 Los Angeles, CA 90071 Attn: Ms. Kris Carey Jennifer Ngo Loan Administration Fax: (213) 626-1067 Commitment: $20,000,000 NATIONSBANK OF TEXAS, N.A. By:___________________________ Name: Title: Address for Notices: 444 S. Flower Street Suite 1500 Los Angeles, CA 90071 Attn: Pamela Randell Fax: (213) 624-5815 Eurodollar Lending Office: 901 Main Street 67th Floor Dallas, TX 95202 Attn: Kay Hibbs Fax: (214) 508-0944 Commitment: $15,000,000 BANK OF HAWAII By:___________________________ Name: Title: Address for Notices: 130 Merchant Street 20th Floor Honolulu, HI 96813 Attn: Ms. Cindy L. Davis Fax: (808) 537-8301 Eurodollar Lending Office: 130 Merchant Street 20th Floor Honolulu, HI 96813 Attn: Ms. Cindy L. Davis Fax: (808) 537-8301 Commitment: $10,000,000 SANWA BANK CALIFORNIA By:___________________________ Name: Del Lorimar Title: Vice President Address for Notices: Sanwa Bank California Sanwa Bank Plaza 601 S. Figueroa Street 8th Floor Los Angeles, CA 90071 Attn: Mr. Del Lorimar Vice President Fax: (213) 896-7090 Eurodollar Lending Office: Sanwa Bank California Sanwa Bank Plaza 601 S. Figueroa Street 8th Floor Los Angeles, CA 90071 Attn: Mr. Del Lorimar Vice President Fax: (213) 896-7090 Schedule 5.01(a) Subsidiaries and Joint Ventures of the Company EX-3 4 HEALTH CARE PROPERTY INVESTORS, INC. Exhibit 12.2 RATIO OF EARNINGS TO FIXED CHARGES (Amounts in thousands, except ratios)
Nine Month Period Ended Year ended Decemeber 31, Sept. 30, ---------------------------------------------------- --------- 1989 1990 1991 1992 1993 1994 ---- ---- ---- ---- ---- ---- Fixed Charges: Interest Expense 19,642 17,520 20,838 19,780 19,728 15,058 Capitalized Interest 1,790 1,359 22 163 931 214 Pro-Rata Share of Unconsolidated Partnerships' Fixed Charges 1,897 1,927 1,909 1,679 1,207 1,018 Amortization of Debt Expense and Discount 248 273 285 290 667 163 Portion of Rental Expense Representative of the Interest Factor 88 98 96 98 104 68 ------- ------- ------- ------- ------- ------- Total 23,665 21,177 23,150 22,010 22,637 16,521 ======= ======= ======= ======= ======= ======= Earnings: Income from Operations 17,052 26,897 30,073 39,031 47,506 36,877 Add Back Fixed Charges 23,665 21,177 23,150 22,010 22,637 16,521 Less Capitalized Interest (1,790) (1,359) (22) (163) (931) (214) ------- ------- ------- ------- ------- ------- 38,927 46,715 53,201 60,878 69,212 53,184 ======= ======= ======= ======= ======= ======= Ratio of Earnings to Fixed Charges 1.64 2.21 2.30 2.77 3.06 3.22 ======= ======= ======= ======= ======= =======
-----END PRIVACY-ENHANCED MESSAGE-----