1
EXHIBIT 10.1
================================================================================
HEALTHCARE REALTY TRUST INCORPORATED
$70,000,000
9.49% Senior Notes due April 1, 2006
--------------
NOTE PURCHASE AGREEMENT
-------------
Dated as of March 1, 2000
================================================================================
2
TABLE OF CONTENTS
(Not a part of the Agreement)
SECTION HEADING PAGE
SECTION 1. AUTHORIZATION OF NOTES................................................................ 1
SECTION 2. SALE AND PURCHASE OF NOTES............................................................ 1
SECTION 3. CLOSING............................................................................... 2
SECTION 4. CONDITIONS TO CLOSING................................................................. 2
Section 4.1. Representations and Warranties........................................................ 2
Section 4.2. Performance; No Default............................................................... 2
Section 4.3. Compliance Certificates............................................................... 3
Section 4.4. Opinions of Counsel................................................................... 3
Section 4.5. Guaranty Agreement; Intercreditor Agreement........................................... 3
Section 4.6. Purchase Permitted By Applicable Law, etc............................................. 3
Section 4.7. Sale of Other Notes................................................................... 4
Section 4.8. Payment of Special Counsel Fees....................................................... 4
Section 4.9. Private Placement Number.............................................................. 4
Section 4.10. Changes in Corporate Structure........................................................ 4
Section 4.11. Proceedings and Documents............................................................. 4
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY......................................... 4
Section 5.1. Organization; Power and Authority..................................................... 4
Section 5.2. Authorization, etc.................................................................... 5
Section 5.3. Disclosure............................................................................ 5
Section 5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates...................... 5
Section 5.5. Financial Statements.................................................................. 6
Section 5.6. Compliance with Laws, Other Instruments, etc.......................................... 6
Section 5.7. Governmental Authorizations, etc...................................................... 6
Section 5.8. Litigation; Observance of Agreements, Statutes and Orders............................. 6
Section 5.9. REIT Status; Taxes.................................................................... 7
Section 5.10. Title to Property; Leases............................................................. 7
Section 5.11. Licenses, Permits, etc................................................................ 7
Section 5.12. Compliance with ERISA................................................................. 8
Section 5.13. Private Offering by the Company....................................................... 8
Section 5.14. Use of Proceeds; Margin Regulations................................................... 8
Section 5.15. Existing Debt; Future Liens........................................................... 8
Section 5.16. Foreign Assets Control Regulations, etc............................................... 9
Section 5.17. Status under Certain Statutes......................................................... 9
-i-
3
Section 5.18. Environmental Matters................................................................. 9
Section 5.19. Guaranty Agreement................................................................... 10
SECTION 6. REPRESENTATIONS OF THE PURCHASER..................................................... 10
Section 6.1. Purchase for Investment.............................................................. 10
Section 6.2. Source of Funds...................................................................... 10
SECTION 7. INFORMATION AS TO COMPANY............................................................ 12
Section 7.1. Financial and Business Information................................................... 12
Section 7.2. Officer's Certificate................................................................ 15
Section 7.3. Inspection........................................................................... 15
SECTION 8. PREPAYMENT OF THE NOTES.............................................................. 16
Section 8.1. Required Prepayments................................................................. 16
Section 8.2. Optional Prepayments with Make-Whole Amount.......................................... 16
Section 8.3. Allocation of Partial Prepayments.................................................... 16
Section 8.4. Maturity; Surrender, etc............................................................. 16
Section 8.5. Purchase of Notes.................................................................... 17
Section 8.6. Make-Whole Amount.................................................................... 17
SECTION 9. AFFIRMATIVE COVENANTS................................................................ 18
Section 9.1. Compliance with Law.................................................................. 18
Section 9.2. Insurance............................................................................ 19
Section 9.3. Maintenance of Properties............................................................ 19
Section 9.4. Payment of Taxes and Claims.......................................................... 19
Section 9.5. Corporate Existence, Maintenance of REIT Status...................................... 19
SECTION 10. NEGATIVE COVENANTS................................................................... 20
Section 10.1. Consolidated Adjusted Net Worth...................................................... 20
Section 10.2. Incurrence of Debt................................................................... 20
Section 10.3. Subsidiary Debt...................................................................... 20
Section 10.4. Interest Charges Coverage Ratio...................................................... 21
Section 10.5. Unencumbered Asset Coverage.......................................................... 21
Section 10.6. Liens................................................................................ 21
Section 10.7. Merger, Consolidation, etc........................................................... 23
Section 10.8. Sales of Assets...................................................................... 23
Section 10.9. Line of Business..................................................................... 23
Section 10.10. Transactions with Affiliates......................................................... 24
Section 10.11. Restricted Investments............................................................... 24
Section 10.12. New Material Subsidiaries............................................................ 24
SECTION 11. EVENTS OF DEFAULT.................................................................... 24
-ii-
4
SECTION 12. REMEDIES ON DEFAULT, ETC............................................................. 27
Section 12.1. Acceleration......................................................................... 27
Section 12.2. Other Remedies....................................................................... 27
Section 12.3. Rescission........................................................................... 27
Section 12.4. No Waivers or Election of Remedies, Expenses, etc.................................... 28
SECTION 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES........................................ 28
Section 13.1. Registration of Notes................................................................ 28
Section 13.2. Transfer and Exchange of Notes....................................................... 28
Section 13.3. Replacement of Notes................................................................. 29
SECTION 14. PAYMENTS ON NOTES.................................................................... 29
Section 14.1. Place of Payment..................................................................... 29
Section 14.2. Home Office Payment.................................................................. 29
SECTION 15. EXPENSES, ETC........................................................................ 30
Section 15.1. Transaction Expenses................................................................. 30
Section 15.2. Survival............................................................................. 30
SECTION 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT......................... 30
SECTION 17. AMENDMENT AND WAIVER................................................................. 30
Section 17.1. Requirements......................................................................... 30
Section 17.2. Solicitation of Holders of Notes..................................................... 31
Section 17.3. Binding Effect, etc.................................................................. 31
Section 17.4. Termination of Permitted Subsidiary Guarantees....................................... 31
SECTION 18. NOTICES.............................................................................. 32
SECTION 19. REPRODUCTION OF DOCUMENTS............................................................ 32
SECTION 20. CONFIDENTIAL INFORMATION............................................................. 33
SECTION 21. MISCELLANEOUS........................................................................ 34
Section 21.1. Successors and Assigns............................................................... 34
Section 21.2. Payments Due on Non-Business Days.................................................... 34
Section 21.3. Severability......................................................................... 34
Section 21.4. Construction......................................................................... 34
Section 21.5. Counterparts......................................................................... 34
Section 21.6. Governing Law........................................................................ 34
Signatures...................................................................................................... 35
-iii-
5
SCHEDULE A -- Information Relating to Purchasers
SCHEDULE B -- Defined Terms
SCHEDULE 5.4 -- Subsidiaries of the Company and Ownership of Subsidiary Stock
SCHEDULE 5.5 -- Financial Statements
SCHEDULE 5.8 -- Certain Litigation
SCHEDULE 5.15 -- Existing Debt
EXHIBIT 1 -- Form of 9.49% Senior Note due April 1, 2006
EXHIBIT 2(b) -- Form of Guaranty Agreement
EXHIBIT 2(c) -- Form of Intercreditor Agreement
EXHIBIT 4.4(a) -- Form of Opinion of Special Counsel for the Company and its
Subsidiaries
EXHIBIT 4.4(b) -- Form of Opinion of Special Tax Counsel for the Company and its
Subsidiaries
EXHIBIT 4.4(c) -- Form of Opinion of Special Counsel for the Purchasers
-iv-
6
HEALTHCARE REALTY TRUST INCORPORATED
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
9.49% Senior Notes due April 1, 2006
Dated as of
March 1, 2000
TO EACH OF THE PURCHASERS LISTED IN
THE ATTACHED SCHEDULE A:
Ladies and Gentlemen:
HEALTHCARE REALTY TRUST INCORPORATED, a Maryland corporation (the
"Company"), agrees with you as follows:
SECTION 1. AUTHORIZATION OF NOTES.
The Company has authorized the issue and sale of $70,000,000 aggregate
principal amount of its 9.49% Senior Notes due April 1, 2006 (the "Notes", such
term to include any such notes issued in substitution therefor pursuant to
Section 13 of this Agreement or the Other Agreements (as hereinafter defined)).
The Notes shall be substantially in the form set out in Exhibit 1, with such
changes therefrom, if any, as may be approved by you and the Company. Certain
capitalized terms used in this Agreement are defined in Schedule B; references
to a "Schedule" or an "Exhibit" are, unless otherwise specified, to a Schedule
or an Exhibit attached to this Agreement.
SECTION 2. SALE AND PURCHASE OF NOTES.
(a) Subject to the terms and conditions of this Agreement, the
Company will issue and sell to you and you will purchase from the Company, at
the Closing provided for in Section 3, Notes in the principal amount specified
opposite your name in Schedule A at the purchase price of 100% of the principal
amount thereof. Contemporaneously with entering into this Agreement, the Company
is entering into separate Note Purchase Agreements (the "Other Agreements")
identical with this Agreement with each of the other purchasers named in
Schedule A (the "Other Purchasers"), providing for the sale at such Closing to
each of the Other Purchasers of Notes in the principal amount specified opposite
its name in Schedule A. Your obligation hereunder, and the obligations of the
Other Purchasers under the Other Agreements, are several and not joint
obligations, and you shall have no obligation under any Other Agreement and no
liability to any Person for the performance or nonperformance by any Other
Purchaser thereunder.
7
HEALTHCARE REALTY TRUST INCORPORATED NOTE PURCHASE AGREEMENT
(b) Pursuant to the Subsidiaries Guarantee dated as of ▇▇▇▇▇ ▇,
▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇"; said Guaranty Agreement together with any other
Subsidiary Guarantee executed and delivered from time to time pursuant to
Section 10.12 of this Agreement being hereinafter referred to collectively as
the "Guaranty Agreements"), each Material Subsidiary will guarantee the prompt
payment, when due, by acceleration or otherwise, of all indebtedness,
obligations and liabilities of the Company under (i) this Agreement and the
Other Agreements, (ii) any Note or Notes issued by the Company pursuant to this
Agreement or the Other Agreements and (iii) any other of the documents to which
the Company is a party delivered in connection with the transactions
contemplated hereby. The Guaranty Agreement will be in the form attached hereto
as Exhibit 2(b).
(c) You, the Other Purchasers and certain other creditors of the
Company have entered into an Intercreditor Agreement dated as of March 1, 2000
(the "Intercreditor Agreement") substantially in the form attached hereto as
Exhibit 2(c).
SECTION 3. CLOSING.
The sale and purchase of the Notes to be purchased by you and the Other
Purchasers shall occur at the offices of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, at 10:00 A.M. Chicago time, at a closing (the
"Closing") on April 6, 2000 or on such other Business Day thereafter on or prior
to April 30, 2000 as may be agreed upon by the Company and you and the Other
Purchasers. At the Closing the Company will deliver to you the Notes to be
purchased by you in the form of a single Note (or such greater number of Notes
in denominations of at least $500,000 as you may request) dated the date of the
Closing and registered in your name (or in the name of your nominee), against
delivery by you to the Company or its order of immediately available funds in
the amount of the purchase price therefor by wire transfer of immediately
available funds for the account of the Company to account number ▇▇▇▇-▇▇▇▇-▇▇,
ABA #▇▇▇-▇▇▇▇-▇▇, Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇, at Bank of
America. If at the Closing the Company shall fail to tender such Notes to you as
provided above in this Section 3, or any of the conditions specified in Section
4 shall not have been fulfilled to your satisfaction, you shall, at your
election, be relieved of all further obligations under this Agreement, without
thereby waiving any rights you may have by reason of such failure or such
nonfulfillment.
SECTION 4. CONDITIONS TO CLOSING.
Your obligation to purchase and pay for the Notes to be sold to you at
the Closing is subject to the fulfillment to your satisfaction, prior to or at
the Closing, of the following conditions:
Section 4.1. Representations and Warranties. The representations and
warranties of the Company and the Material Subsidiaries in this Agreement shall
be correct when made and at the time of the Closing.
Section 4.2. Performance; No Default. The Company and each Material
Subsidiary shall have performed and complied with all agreements and conditions
contained in this
-2-
8
HEALTHCARE REALTY TRUST INCORPORATED NOTE PURCHASE AGREEMENT
Agreement and the Guaranty Agreement required to be performed or complied with
by it prior to or at the Closing and after giving effect to the issue and sale
of the Notes (and the application of the proceeds thereof as contemplated by
Section 5.14) no Default or Event of Default shall have occurred and be
continuing. Neither the Company nor any Subsidiary shall have entered into any
transaction since December 31, 1999 that would have been prohibited by Sections
10.1 through 10.12, both inclusive, hereof had such Sections applied since such
date.
Section 4.3. Compliance Certificates.
(a) Officer's Certificate. The Company and each Material
Subsidiary shall have delivered to you an Officer's Certificate, dated the date
of the Closing, certifying that (i) the conditions specified in Sections 4.1,
4.2 and 4.10 have been fulfilled, (ii) the execution of the Guaranty Agreement
by each Material Subsidiary will result in a financial benefit to such Material
Subsidiary and (iii) the Guaranty Agreement has been executed by each Material
Subsidiary in good faith.
(b) Secretary's Certificates. The Company and each Material
Subsidiary shall have delivered to you a certificate certifying as to the
resolutions attached thereto and other corporate proceedings relating to the
authorization, execution and delivery of the Notes, this Agreement and the Other
Agreements, in the case of the Company, and relating to the authorization,
execution and delivery of the Guaranty Agreement, in the case of such Material
Subsidiary.
Section 4.4. Opinions of Counsel. You shall have received opinions in
form and substance satisfactory to you, dated the date of the Closing, (a) from
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, special counsel for the Company and its
Subsidiaries, substantially in the form set forth in Exhibit 4.4(a) and covering
such other matters incident to such transaction as you may reasonably request,
(b) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special tax counsel for the Company and its
Subsidiaries, substantially in the form set forth in Exhibit 4.4(b) and covering
such other matters incident to the transactions contemplated hereby as you or
your counsel may reasonably request (and the Company hereby instructs its
counsel to deliver such opinions to you) and (c) from ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, your
special counsel in connection with such transactions, substantially in the form
set forth in Exhibit 4.4(c) and covering such other matters incident to such
transactions as you may reasonably request.
Section 4.5. Guaranty Agreement; Intercreditor Agreement. (a) The
Guaranty Agreement shall have been duly executed and delivered by each Material
Subsidiary.
(b) The Intercreditor Agreement shall have been duly executed and
delivered by the parties thereto.
Section 4.6. Purchase Permitted By Applicable Law, etc. On the date of
the Closing your purchase of Notes shall (i) be permitted by the laws and
regulations of each jurisdiction to which you are subject, without recourse to
provisions (such as Section 1405(a)(8) of the New York Insurance Law) permitting
limited investments by insurance companies without restriction as to the
character of the particular investment, (ii) not violate any applicable law or
regulation (including, without limitation, Regulation U, T or X of the Board of
Governors of the Federal
-3-
9
HEALTHCARE REALTY TRUST INCORPORATED NOTE PURCHASE AGREEMENT
Reserve System) and (iii) not subject you to any tax, penalty or liability under
or pursuant to any applicable law or regulation, which law or regulation was not
in effect on the date hereof. If requested by you, you shall have received an
Officer's Certificate certifying as to such matters of fact as you may
reasonably specify to enable you to determine whether such purchase is so
permitted.
Section 4.7. Sale of Other Notes. Contemporaneously with the Closing,
the Company shall sell to the Other Purchasers, and the Other Purchasers shall
purchase the Notes to be purchased by them at the Closing as specified in
Schedule A.
Section 4.8. Payment of Special Counsel Fees. Without limiting the
provisions of Section 15.1, the Company shall have paid on or before the Closing
the fees, charges and disbursements of your special counsel referred to in
Section 4.4 to the extent reflected in a statement of such counsel rendered to
the Company at least one Business Day prior to the Closing.
Section 4.9. Private Placement Number. A Private Placement number
issued by Standard & Poor's CUSIP Service Bureau (in cooperation with the
Securities Valuation Office of the National Association of Insurance
Commissioners) shall have been obtained for the Notes.
Section 4.10. Changes in Corporate Structure. The Company shall not
have changed its jurisdiction of incorporation or been a party to any merger or
consolidation and shall not have succeeded to all or any substantial part of the
liabilities of any other entity, at any time following the date of the most
recent financial statements referred to in Schedule 5.5.
Section 4.11. Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated by this Agreement
and all documents and instruments incident to such transactions shall be
satisfactory to you and your special counsel, and you and your special counsel
shall have received all such counterpart originals or certified or other copies
of such documents as you or they may reasonably request.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to you that:
Section 5.1. Organization; Power and Authority. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation, and is duly qualified as a foreign
corporation and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which the
failure to be so qualified or in good standing could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The Company
has the corporate power and authority to own or hold under lease the properties
it purports to own or hold under lease, to transact the business it transacts
and proposes to transact, to execute and deliver this Agreement and the Other
Agreements and the Notes and to perform the provisions hereof and thereof.
-4-
10
Section 5.2. Authorization, etc. This Agreement and the Other
Agreements and the Notes have been duly authorized by all necessary corporate
action on the part of the Company, and this Agreement constitutes, and upon
execution and delivery thereof each Note will constitute, a legal, valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms, except as such enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
Section 5.3. Disclosure. The Company has delivered to you and each
Other Purchaser a copy of its 1999 Annual Report on Form 10-K (the "Disclosure
Document"). The Disclosure Document, taken as a whole, fairly describes, in all
Material respects, the general nature of the business and principal properties
of the Company and its Subsidiaries, and this Agreement and the Disclosure
Document does not contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein not misleading
in light of the circumstances under which they were made. Since December 31,
1999, there has been no change in the financial condition, operations, business,
properties or prospects of the Company or any Subsidiary except changes that
individually or in the aggregate could not reasonably be expected to have a
Material Adverse Effect. Other than matters of public knowledge, there is no
fact known to the Company that could reasonably be expected to have a Material
Adverse Effect that has not been set forth herein or in the Disclosure Document.
Section 5.4. Organization and Ownership of Shares of Subsidiaries;
Affiliates. (a) Schedule 5.4 contains (except as noted therein) complete and
correct lists (i) of the Company's Subsidiaries, showing, as to each Subsidiary,
the correct name thereof, the jurisdiction of its organization, and the
percentage of shares of each class of its capital stock or similar equity
interests outstanding owned by the Company and each other Subsidiary, (ii) of
the Company's Affiliates, other than Subsidiaries, and (iii) of the Company's
directors and senior officers.
(b) All of the outstanding shares of capital stock or similar
equity interests of each Subsidiary shown in Schedule 5.4 as being owned by the
Company and its Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by the Company or another Subsidiary free and clear
of any Lien (except as otherwise disclosed in Schedule 5.4).
(c) Each Subsidiary identified in Schedule 5.4 is a corporation or
other legal entity duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization, and is duly qualified as a foreign
corporation or other legal entity and is in good standing in each jurisdiction
in which such qualification is required by law, other than those jurisdictions
as to which the failure to be so qualified or in good standing could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Each such Subsidiary has the corporate or other power and
authority to own or hold under lease the properties it purports to own or hold
under lease and to transact the business it transacts and proposes to transact.
(d) No Subsidiary is a party to, or otherwise subject to any legal
restriction or any agreement (other than this Agreement, the agreements listed
on Schedule 5.4 and customary
-5-
11
HEALTHCARE REALTY TRUST INCORPORATED NOTE PURCHASE AGREEMENT
limitations imposed by corporate law statutes) restricting the ability of such
Subsidiary to pay dividends out of profits or make any other similar
distributions of profits to the Company or any of its Subsidiaries that owns
outstanding shares of capital stock or similar equity interests of such
Subsidiary.
Section 5.5. Financial Statements. The Company has delivered to each
Purchaser copies of the financial statements of the Company and its Subsidiaries
listed on Schedule 5.5. All of said financial statements (including in each case
the related schedules and notes) fairly present in all Material respects the
consolidated financial position of the Company and its Subsidiaries as of the
respective dates specified in such Schedule and the consolidated results of
their operations and cash flows for the respective periods so specified and have
been prepared in accordance with GAAP consistently applied throughout the
periods involved except as set forth in the notes thereto (subject, in the case
of any interim financial statements, to normal year-end adjustments).
Section 5.6. Compliance with Laws, Other Instruments, etc. The
execution, delivery and performance by the Company of this Agreement and the
Notes will not (i) contravene, result in any breach of, or constitute a default
under, or result in the creation of any Lien in respect of any property of the
Company or any Subsidiary under, any indenture, mortgage, deed of trust, loan,
purchase or credit agreement, lease, corporate charter or by-laws, or any other
agreement or instrument to which the Company or any Subsidiary is bound or by
which the Company or any Subsidiary or any of their respective properties may be
bound or affected, (ii) conflict with or result in a breach of any of the terms,
conditions or provisions of any order, judgment, decree, or ruling of any court,
arbitrator or Governmental Authority applicable to the Company or any Subsidiary
or (iii) violate any provision of any statute or other rule or regulation of any
Governmental Authority applicable to the Company or any Subsidiary.
Section 5.7. Governmental Authorizations, etc. No consent, approval or
authorization of, or registration, filing or declaration with, any Governmental
Authority is required in connection with (i) the execution, delivery or
performance by the Company of this Agreement or the Notes, or (ii) the
execution, delivery or performance by any Material Subsidiary of the Guaranty
Agreement.
Section 5.8. Litigation; Observance of Agreements, Statutes and Orders.
(a) Except as set forth in Schedule 5.8, there are no actions, suits or
proceedings pending or, to the knowledge of the Company or any Material
Subsidiary, threatened against or affecting the Company or any Subsidiary or any
property of the Company or any Subsidiary in any court or before any arbitrator
of any kind or before or by any Governmental Authority that, individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default under any
term of any agreement or instrument to which it is a party or by which it is
bound, or any order, judgment, decree or ruling of any court, arbitrator or
Governmental Authority or is in violation of any applicable law, ordinance, rule
or regulation (including without limitation Environmental Laws) of any
Governmental Authority, which default or violation, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
-6-
12
HEALTHCARE REALTY TRUST INCORPORATED NOTE PURCHASE AGREEMENT
Section 5.9. REIT Status; Taxes. (a) The Company qualified as a real
estate investment trust under the provisions of subchapter M of the Code for its
fiscal years ended December 31, 1993 through December 31, 1999. No tax return
has been examined and reported on by the Internal Revenue Service. The Company
has not incurred any liability for excise taxes pursuant to Section 4981 of the
Code. Each Subsidiary of the Company is a "qualified REIT subsidiary" within the
meaning of section 856(i) of the Code.
(b) The Company and its Subsidiaries have filed all tax returns
that are required to have been filed in any jurisdiction, and have paid all
taxes shown to be due and payable on such returns and all other taxes and
assessments levied upon them or their properties, assets, income or franchises,
to the extent such taxes and assessments have become due and payable and before
they have become delinquent, except for any taxes and assessments (i) the amount
of which is not individually or in the aggregate Material or (ii) the amount,
applicability or validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which the Company or a Subsidiary,
as the case may be, has established adequate reserves in accordance with GAAP.
The Company knows of no basis for any other tax or assessment that could
reasonably be expected to have a Material Adverse Effect. The charges, accruals
and reserves on the books of the Company and its Subsidiaries in respect of
Federal, state or other taxes for all fiscal periods are adequate. The Federal
income tax liabilities of the Company and its Subsidiaries have been paid for
all fiscal years up to and including the fiscal year ended December 31, 1998.
Section 5.10. Title to Property; Leases. The Company and its
Subsidiaries have good and sufficient title to their respective properties that
individually or in the aggregate are Material, including all such properties
reflected in the most recent audited balance sheet referred to in Section 5.5 or
purported to have been acquired by the Company or any Subsidiary after said date
(except as sold or otherwise disposed of in the ordinary course of business), in
each case free and clear of Liens prohibited by this Agreement. All leases to
which the Company or any Subsidiary is a party, that individually or in the
aggregate are Material, are valid and subsisting and are in full force and
effect in all respects.
Section 5.11. Licenses, Permits, etc. (a) The Company and its
Subsidiaries own or possess all licenses, permits, franchises, authorizations,
patents, copyrights, service marks, trademarks and trade names, or rights
thereto, that individually or in the aggregate are Material, without known
conflict with the rights of others.
(b) To the best knowledge of the Company, no product of the
Company infringes in any material respect any license, permit, franchise,
authorization, patent, copyright, service ▇▇▇▇, trademark, trade name or other
right owned by any other Person; and
(c) To the best knowledge of the Company, there is no Material
violation by any Person of any right of the Company or any of its Subsidiaries
with respect to any patent, copyright, service ▇▇▇▇, trademark, trade name or
other right owned or used by the Company or any of its Subsidiaries.
-7-
13
HEALTHCARE REALTY TRUST INCORPORATED NOTE PURCHASE AGREEMENT
Section 5.12. Compliance with ERISA. (a) The Company and each ERISA
Affiliate have operated and administered each Plan in compliance with all
applicable laws except for such instances of noncompliance as have not resulted
in and could not reasonably be expected to result in a Material Adverse Effect.
Neither the Company nor any ERISA Affiliate maintains, contributes to or has any
liability or contingent liability with respect to any "pension plan" as defined
in ERISA, which is subject to Title IV of ERISA.
(b) The expected post-retirement benefit obligation (determined as
of the last day of the Company's most recently ended fiscal year in accordance
with Financial Accounting Standards Board Statement No. 106, without regard to
liabilities attributable to continuation coverage mandated by section 4980B of
the Code) of the Company and its Subsidiaries is not Material.
(c) The execution and delivery of this Agreement and the issuance
and sale of the Notes hereunder will not involve any transaction that is subject
to the prohibitions of section 406 of ERISA or in connection with which a tax
could be imposed pursuant to section 4975(c)(1)(A)-(D) of the Code. The
representation by the Company in the first sentence of this Section 5.12(c) is
made in reliance upon and subject to the accuracy of your representation in
Section 6.2 as to the sources of the funds used to pay the purchase price of the
Notes to be purchased by you.
Section 5.13. Private Offering by the Company. Neither the Company nor
anyone acting on its behalf has offered the Notes or any similar securities for
sale to, or solicited any offer to buy any of the same from, or otherwise
approached or negotiated in respect thereof with, any person other than you and
the Other Purchasers, each of which has been offered the Notes at a private sale
for investment. Neither the Company nor anyone acting on its behalf has taken,
or will take, any action that would subject the issuance or sale of the Notes to
the registration requirements of Section 5 of the Securities Act.
Section 5.14. Use of Proceeds; Margin Regulations. The Company will
apply the proceeds of the sale of the Notes, together with the proceeds of the
sale of the Public Notes, to repay outstanding indebtedness and for general
corporate purposes. No part of the proceeds from the sale of the Notes hereunder
will be used, directly or indirectly, for the purpose of buying or carrying any
margin stock within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System (12 CFR 207), or for the purpose of buying or carrying or
trading in any securities under such circumstances as to involve the Company in
a violation of Regulation X of said Board (12 CFR 224) or to involve any broker
or dealer in a violation of Regulation T of said Board (12 CFR 220). Neither the
Company nor any Subsidiary owns or intends to buy or carry any margin stock. As
used in this Section, the terms "margin stock" and "purpose of buying or
carrying" shall have the meanings assigned to them in said Regulation U.
Section 5.15. Existing Debt; Future Liens. (a) Schedule 5.15 sets forth
a complete and correct list of all outstanding Debt of the Company and its
Subsidiaries as of April 4, 2000, since which date there has been no Material
change in the amounts, interest rates, sinking funds, installment payments or
maturities of the Debt of the Company or its Subsidiaries. Neither the Company
nor any Subsidiary is in default and no waiver of default is currently in
effect, in the payment of any principal or interest on any Debt of the Company
or such Subsidiary and no event
-8-
14
HEALTHCARE REALTY TRUST INCORPORATED NOTE PURCHASE AGREEMENT
or condition exists with respect to any Debt of the Company or any Subsidiary
that would permit (or that with notice or the lapse of time, or both, would
permit) one or more Persons to cause such Debt to become due and payable before
its stated maturity or before its regularly scheduled dates of payment.
(b) Neither the Company nor any Subsidiary has agreed or consented
to cause or permit in the future (upon the happening of a contingency or
otherwise) any of its property, whether now owned or hereafter acquired, to be
subject to a Lien not permitted by Section 10.6.
Section 5.16. Foreign Assets Control Regulations, etc. Neither the sale
of the Notes by the Company hereunder nor its use of the proceeds thereof will
violate the Trading with the Enemy Act, as amended, or any of the foreign assets
control regulations of the United States Treasury Department (31 CFR, Subtitle
B, Chapter V, as amended) or any enabling legislation or executive order
relating thereto.
Section 5.17. Status under Certain Statutes. Neither the Company nor
any Subsidiary is subject to regulation under the Investment Company Act of
1940, as amended, the Public Utility Holding Company Act of 1935, as amended,
the Interstate Commerce Act, as amended, or the Federal Power Act, as amended.
Section 5.18. Environmental Matters. Neither the Company nor any
Subsidiary has knowledge of any claim or has received any notice of any claim,
and no proceeding has been instituted raising any claim against the Company or
any of its Subsidiaries or any of their respective real properties now or
formerly owned, leased or operated by any of them or other assets, alleging any
damage to the environment or violation of any Environmental Laws, except, in
each case, such as could not reasonably be expected to result in a Material
Adverse Effect. Without limiting the foregoing:
(a) neither the Company nor any Subsidiary has knowledge
of any facts which would give rise to any claim, public or private, of
violation of Environmental Laws or damage to the environment emanating
from, occurring on or in any way related to real properties now or
formerly owned, leased or operated by any of them or to other assets or
their use, except, in each case, such as could not reasonably be
expected to result in a Material Adverse Effect;
(b) neither the Company nor any of its Subsidiaries nor,
to the best knowledge of the Company, any other Person has stored any
Hazardous Materials on real properties now or formerly owned, leased or
operated by any of them or has disposed of any Hazardous Materials in a
manner contrary to any Environmental Laws in each case in any manner
that could reasonably be expected to result in a Material Adverse
Effect; and
(c) all buildings on all real properties now owned,
leased or operated by the Company or any of its Subsidiaries are in
compliance with applicable Environmental Laws, except where failure to
comply could not reasonably be expected to result in a Material Adverse
Effect.
-9-
15
HEALTHCARE REALTY TRUST INCORPORATED NOTE PURCHASE AGREEMENT
Section 5.19. Guaranty Agreement. (a) Each Material Subsidiary has the
corporate power and authority to execute and deliver the Guaranty Agreement and
to perform the provisions thereof. The Guaranty Agreement has been duly
authorized by all necessary corporate action on the part of such Material
Subsidiary, and upon execution and delivery thereof will constitute, a legal,
valid and binding obligation of such Material Subsidiary enforceable against
such Material Subsidiary in accordance with its terms, except as such
enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (ii) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
(b) The execution, delivery and performance by each
Material Subsidiary of the Guaranty Agreement will not (i) contravene, result in
any breach of, or constitute a default under, or result in the creation of any
Lien in respect of any property of such Material Subsidiary under, any
indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease,
corporate charter or by-laws, or any other agreement or instrument to which such
Material Subsidiary is bound or by which such Material Subsidiary or any of its
properties may be bound or affected, (ii) conflict with or result in a breach of
any of the terms, conditions or provisions of any order, judgment, decree, or
ruling of any court, arbitrator or Governmental Authority applicable to such
Material Subsidiary or (iii) violate any provision of any statute or other rule
or regulation of any Governmental Authority applicable to such Material
Subsidiary.
(c) The obligations incurred by each Material Subsidiary under or
pursuant to the Guaranty Agreement are not being incurred with actual intent to
hinder, delay or defraud existing or future creditors of the Company or such
Material Subsidiary.
SECTION 6. REPRESENTATIONS OF THE PURCHASER.
Section 6.1. Purchase for Investment. You represent that you are
purchasing the Notes for your own account or for one or more separate accounts
maintained by you or for the account of one or more pension or trust funds and
not with a view to the distribution thereof, provided that the disposition of
your or their property shall at all times be within your or their control. You
understand that the Notes have not been registered under the Securities Act and
may be resold only if registered pursuant to the provisions of the Securities
Act or if an exemption from registration is available, except under
circumstances where neither such registration nor such an exemption is required
by law, and that the Company is not required to register the Notes.
Section 6.2. Source of Funds. You represent that at least one of the
following statements is an accurate representation as to each source of funds (a
"Source") to be used by you to pay the purchase price of the Notes to be
purchased by you hereunder:
(a) if you are an insurance company, the Source is an
"insurance company general account" within the meaning of Department of
Labor Prohibited Transaction Exemption ("PTE") 95-60 (issued July 12,
1995) and the purchase of the Notes by you is eligible for and
satisfies the requirements of PTE 95-60; or
-10-
16
HEALTHCARE REALTY TRUST INCORPORATED NOTE PURCHASE AGREEMENT
(b) the Source is either (i) an insurance company pooled
separate account, within the meaning of PTE 90-1 (issued January 29,
1990), or (ii) a bank collective investment fund, within the meaning of
the PTE 91-38 (issued July 12, 1991) and, except as you have disclosed
to the Company in writing pursuant to this paragraph (b), no employee
benefit plan or group of plans maintained by the same employer or
employee organization beneficially owns more than 10% of all assets
allocated to such pooled separate account or collective investment
fund; or
(c) the Source constitutes assets of an "investment fund"
(within the meaning of Part V of the QPAM Exemption) managed by a
"qualified professional asset manager" or "QPAM" (within the meaning of
Part V of the QPAM Exemption), no employee benefit plan's assets that
are included in such investment fund, when combined with the assets of
all other employee benefit plans established or maintained by the same
employer or by an affiliate (within the meaning of Section V(c)(1) of
the QPAM Exemption) of such employer or by the same employee
organization and managed by such QPAM, exceed 20% of the total client
assets managed by such QPAM, the conditions of Part l(c) and (g) of the
QPAM Exemption are satisfied, neither the QPAM nor a person controlling
or controlled by the QPAM (applying the definition of "control" in
Section V(e) of the QPAM Exemption) owns a 5% or more interest in the
Company and (i) the identity of such QPAM and (ii) the names of all
employee benefit plans whose assets are included in such investment
fund have been disclosed to the Company in writing pursuant to this
paragraph (c); or
(d) the Source is a governmental plan; or
(e) the Source is one or more employee benefit plans, or
a separate account or trust fund comprised of one or more employee
benefit plans, each of which has been identified to the Company in
writing pursuant to this paragraph (e); or
(f) the Source does not include assets of any employee
benefit plan, other than a plan exempt from the coverage of ERISA.
The Company shall deliver a certificate on the date of the Closing,
with respect to you and the Other Purchasers and on or prior to the date of any
transfer of the Notes, with respect to any subsequent holder of the Notes, which
certificate shall either state that (i) it is neither a "party in interest" (as
defined in Title I, Section 3(14) of ERISA) nor a "disqualified person" (as
defined in Section 4975(e)(2) of the Internal Revenue Code of 1986, as amended),
with respect to any plan identified pursuant to paragraphs (b) or (e) above, or
(ii) with respect to any plan, identified pursuant to paragraph (c) above,
neither it nor any "affiliate" (as defined in Section V(c) of the QPAM
Exemption) has at this time, and during the immediately preceding one year has
exercised the authority to appoint or terminate said QPAM as manager of the
assets of any plan identified in writing pursuant to paragraph (c) above or to
negotiate the terms of said QPAM's management agreement on behalf of any such
identified plans.
-11-
17
HEALTHCARE REALTY TRUST INCORPORATED NOTE PURCHASE AGREEMENT
As used in this Section 6.2, the terms "employee benefit plan",
"governmental plan", "party in interest" and "separate account" shall have the
respective meanings assigned to such terms in Section 3 of ERISA.
SECTION 7. INFORMATION AS TO COMPANY.
Section 7.1. Financial and Business Information. The Company shall
deliver to each holder of Notes for so long as any of the Notes are outstanding:
(a) Quarterly Statements -- as soon as available and in
any event within 60 days after the end of each quarterly fiscal period
in each fiscal year of the Company (other than the last quarterly
fiscal period of each such fiscal year), duplicate copies of:
(i) a consolidated balance sheet of the Company
and its Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of income and cash
flows of the Company and its Subsidiaries for such quarter and
(in the case of the second and third quarters) for the portion
of the fiscal year ending with such quarter,
setting forth in comparative form the figures for the end of the previous fiscal
year in the case of clause (i), and the figures for the corresponding periods in
the previous fiscal year in the case of clause (ii), all in reasonable detail,
prepared in accordance with GAAP applicable to quarterly financial statements
generally, and certified by a Senior Financial Officer as fairly presenting, in
all Material respects, the financial position of the companies being reported on
and their results of operations and cash flows, subject to changes resulting
from year-end adjustments, provided that delivery within the time period
specified above of copies of the Company's Quarterly Report on Form 10-Q
prepared in compliance with the requirements therefor and filed with the
Securities and Exchange Commission shall be deemed to satisfy the requirements
of this Section 7.1(a);
(b) Annual Statements -- as soon as available and in any
event within 90 days after the end of each fiscal year of the Company,
duplicate copies of,
(i) a consolidated balance sheet of the Company
and its Subsidiaries, as at the end of such year, and
(ii) consolidated statements of income,
stockholders' equity and cash flows of the Company and its
Subsidiaries, for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, prepared in accordance
with GAAP, and accompanied
(A) by an opinion thereon of independent
certified public accountants of recognized national standing,
which opinion shall state that such financial statements
present fairly, in all Material respects, the financial
position of the
-12-
18
HEALTHCARE REALTY TRUST INCORPORATED NOTE PURCHASE AGREEMENT
companies being reported upon and their results of operations
and cash flows and have been prepared in conformity with GAAP,
and that the examination of such accountants in connection
with such financial statements has been made in accordance
with generally accepted auditing standards, and that such
audit provides a reasonable basis for such opinion in the
circumstances, and
(B) a certificate of such accountants stating
that they have reviewed this Agreement and stating further
whether, in making their audit, they have become aware of any
condition or event that then constitutes a Default or an Event
of Default, and, if they are aware that any such condition or
event then exists, specifying the nature and period of the
existence thereof (it being understood that such accountants
shall not be liable, directly or indirectly, for any failure
to obtain knowledge of any Default or Event of Default unless
such accountants should have obtained knowledge thereof in
making an audit in accordance with generally accepted auditing
standards or did not make such an audit),
provided that the delivery within the time period specified above of
the Company's Annual Report on Form 10-K for such fiscal year (together
with the Company's annual report to stockholders, if any, prepared
pursuant to Rule 14a-3 under the Exchange Act) prepared in accordance
with the requirements therefor and filed with the Securities and
Exchange Commission, together with the accountant's certificate
described in clause (B) above, shall be deemed to satisfy the
requirements of this Section 7.1(b);
(c) SEC and Other Reports -- promptly upon their becoming
available, one copy of (i) each financial statement, report, notice or
proxy statement sent by the Company or any Subsidiary to public
securities holders generally, and (ii) each regular or periodic report,
each registration statement (without exhibits except as expressly
requested by such holder), and each prospectus and all amendments
thereto filed by the Company or any Subsidiary with the Securities and
Exchange Commission and of all press releases and other statements made
available generally by the Company or any Subsidiary to the public
concerning developments that are Material;
(d) Notice of Default, Event of Default or Acceleration
of the Notes -- immediately after a Responsible Officer becoming aware
of (i) the existence of any Default or Event of Default or that any
Person has given any notice or taken any action with respect to a
claimed default hereunder or that any Person has given any notice or
taken any action with respect to a claimed default of the type referred
to in Section 11(h), a written notice specifying the nature and period
of existence thereof and what action the Company is taking or proposes
to take with respect thereto, or (ii) the acceleration of any Note
pursuant to Section 12.1 hereof, a written notice setting forth the
principal amount of each Note so accelerated, the name of the holder
thereof and the circumstances surrounding such acceleration;
(e) ERISA Matters -- promptly, and in any event within
five days after a Responsible Officer becoming aware of any of the
following, a written notice setting
-13-
19
HEALTHCARE REALTY TRUST INCORPORATED NOTE PURCHASE AGREEMENT
forth the nature thereof and the action, if any, that the Company or an
ERISA Affiliate proposes to take with respect thereto:
(i) with respect to any Plan, any reportable
event, as defined in section 4043(b) of ERISA and the
regulations thereunder, for which notice thereof has not been
waived pursuant to such regulations as in effect on the date
hereof; or
(ii) the taking by the PBGC of steps to
institute, or the threatening by the PBGC of the institution
of, proceedings under section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer,
any Plan, or the receipt by the Company or any ERISA Affiliate
of a notice from a Multiemployer Plan that such action has
been taken by the PBGC with respect to such Multiemployer
Plan; or
(iii) any event, transaction or condition that
could result in the incurrence of any liability by the Company
or any ERISA Affiliate pursuant to Title I or IV of ERISA or
the penalty or excise tax provisions of the Code relating to
employee benefit plans, or in the imposition of any Lien on
any of the rights, properties or assets of the Company or any
ERISA Affiliate pursuant to Title I or IV of ERISA or such
penalty or excise tax provisions, if such liability or Lien,
taken together with any other such liabilities or Liens then
existing, could reasonably be expected to have a Material
Adverse Effect;
(f) Notices from Governmental Authority -- promptly, and
in any event within 30 days of receipt thereof, copies of any notice to
the Company or any Subsidiary from any Federal or state Governmental
Authority relating to any order, ruling, statute or other law or
regulation that could reasonably be expected to have a Material Adverse
Effect;
(g) Specified Affiliates -- (i) during any period when
GAAP or related auditing standards requires that a Specified Affiliate
of the Company be accounted for as a Subsidiary for purposes of the
consolidated financial statements of the Company and its Subsidiaries,
the term "Subsidiary" shall include a Specified Affiliate of the
Company for purposes of paragraphs (a) and (b) above; and
(ii) during any period when GAAP or related auditing
standards does not require that a Specified Affiliate of the Company be
accounted for as a Subsidiary for purposes of the consolidated
financial statements of the Company and its Subsidiaries, the term
"Subsidiary" shall not include a Specified Affiliate of the Company for
purposes of paragraphs (a) and (b) above and, if the Company shall have
any Specified Affiliates during any period covered by the financial
statements delivered pursuant to paragraphs (a) or (b) above, financial
statements of the character specified in paragraphs (a) and (b) above
for such Specified Affiliates, and, on a combined basis, financial
statements of the character specified in paragraphs (a) and (b) above
for the Company, its Subsidiaries and such Specified Affiliates
accompanied by the opinions and certificates specified in paragraphs
(b)(A) and (B) above; and
-14-
20
HEALTHCARE REALTY TRUST INCORPORATED NOTE PURCHASE AGREEMENT
(h) Requested Information -- with reasonable promptness,
such other data and information relating to the business, operations,
affairs, financial condition, assets or properties of the Company or
any of its Subsidiaries or relating to the ability of the Company or
any Material Subsidiary to perform its obligations hereunder or under
the Notes or the Guaranty Agreements as from time to time may be
reasonably requested by any such holder of Notes.
Section 7.2. Officer's Certificate. Each set of financial statements
delivered to a holder of Notes pursuant to Section 7.1(a) or Section 7.1(b)
hereof shall be accompanied by a certificate of a Senior Financial Officer
setting forth:
(a) Covenant Compliance -- the information (including
detailed calculations) required in order to establish whether the
Company was in compliance with the requirements of Sections 10.1, 10.2,
10.4, 10.5, 10.8 and 10.11 during the quarterly or annual period
covered by the statements then being furnished (including with respect
to each such Section, where applicable, the calculations of the maximum
or minimum amount, ratio or percentage, as the case may be, permissible
under the terms of such Sections, and the calculation of the amount,
ratio or percentage then in existence); and
(b) No Default -- a statement that such officer has
reviewed the relevant terms hereof and has made, or caused to be made,
under his or her supervision, a review of the transactions and
conditions of the Company and its Subsidiaries from the beginning of
the quarterly or annual period covered by the statements then being
furnished to the date of the certificate and that such review shall not
have disclosed the existence during such period of any condition or
event that constitutes a Default or an Event of Default or, if any such
condition or event existed or exists (including, without limitation,
any such event or condition resulting from the failure of the Company
or any Subsidiary to comply with any Environmental Law), specifying the
nature and period of existence thereof and what action the Company
shall have taken or proposes to take with respect thereto.
Section 7.3. Inspection. The Company shall permit the representatives
of each holder of Notes and their agents for so long as any of the Notes are
outstanding:
(a) No Default -- if no Default or Event of Default then
exists, at the expense of such holder and upon prior request to the
Company, to visit the principal executive office of the Company, to
discuss the affairs, finances and accounts of the Company with the
Company's officers, all at such reasonable times and as often as may be
reasonably requested in writing; and
(b) Default -- if a Default or Event of Default then
exists, at the expense of the Company to visit and inspect any of the
offices or properties of the Company or any Subsidiary, to examine all
their respective books of account, records, reports and other papers,
to make copies and extracts therefrom, and to discuss their respective
affairs, finances and accounts with their respective officers and
independent public accountants (and by this provision the Company
authorizes said accountants to discuss the affairs,
-15-
21
HEALTHCARE REALTY TRUST INCORPORATED NOTE PURCHASE AGREEMENT
finances and accounts of the Company and its Subsidiaries), all at such
times and as often as may be reasonably requested in writing.
Notwithstanding the foregoing, it is understood and agreed that the inspection
rights granted under this Section 7.3 shall be subject to the rights of any
tenants under any leases then in effect to which the Company or its Subsidiaries
is a party.
SECTION 8. PREPAYMENT OF THE NOTES.
Section 8.1. Required Prepayments. On April 1, 2004 and on April 1,
2005, the Company will prepay $20,300,000 principal amount (or such lesser
principal amount as shall then be outstanding) of the Notes at par and without
payment of the Make-Whole Amount or any premium, provided that upon any partial
prepayment of the Notes pursuant to Section 8.2 or purchase of the Notes
permitted by Section 8.5 the principal amount of each required prepayment of the
Notes becoming due under this Section 8.1 on and after the date of such
prepayment or purchase shall be reduced in the same proportion as the aggregate
unpaid principal amount of the Notes is reduced as a result of such prepayment
or purchase.
Section 8.2. Optional Prepayments with Make-Whole Amount. The Company
may, at its option, upon notice as provided below, prepay at any time all, or
from time to time any part of, the Notes, in an aggregate principal amount not
less than $5,000,000 in the case of a partial prepayment, at 100% of the
principal amount so prepaid, and accrued interest thereon to the date of such
prepayment, plus the Make-Whole Amount determined for the prepayment date with
respect to such principal amount. The Company will give each holder of Notes
written notice of each optional prepayment under this Section 8.2 not less than
30 days and not more than 60 days prior to the date fixed for such prepayment.
Each such notice shall specify such date, the aggregate principal amount of the
Notes to be prepaid on such date, the principal amount of each Note held by such
holder to be prepaid (determined in accordance with Section 8.3), and the
interest to be paid on the prepayment date with respect to such principal amount
being prepaid, and shall be accompanied by a certificate of a Senior Financial
Officer as to the estimated Make-Whole Amount due in connection with such
prepayment (calculated as if the date of such notice were the date of the
prepayment), setting forth the details of such computation. Notice of prepayment
having been so given, the aggregate principal amount of the Notes specified in
such notice, together with accrued interest thereon and the Make-Whole Amount
payable with respect thereto shall become due and payable on the prepayment date
specified in said notice. Two Business Days prior to such prepayment, the
Company shall deliver to each holder of Notes a certificate of a Senior
Financial Officer specifying the calculation of such Make-Whole Amount as of the
specified prepayment date.
Section 8.3. Allocation of Partial Prepayments. In the case of each
partial prepayment of the Notes, the principal amount of the Notes to be prepaid
shall be allocated among all of the Notes at the time outstanding in proportion,
as nearly as practicable, to the respective unpaid principal amounts thereof.
Section 8.4. Maturity; Surrender, etc. In the case of each prepayment
of Notes pursuant to this Section 8, the principal amount of each Note to be
prepaid shall mature and become due
-16-
22
HEALTHCARE REALTY TRUST INCORPORATED NOTE PURCHASE AGREEMENT
and payable on the date fixed for such prepayment, together with interest on
such principal amount accrued to such date and the applicable Make-Whole Amount,
if any. From and after such date, unless the Company shall fail to pay such
principal amount when so due and payable, together with the interest and
Make-Whole Amount, if any, as aforesaid, interest on such principal amount shall
cease to accrue. Any Note paid or prepaid in full shall be surrendered to the
Company and cancelled and shall not be reissued, and no Note shall be issued in
lieu of any prepaid principal amount of any Note.
Section 8.5. Purchase of Notes. The Company will not and will not
permit any Affiliate to purchase, redeem, prepay or otherwise acquire, directly
or indirectly, any of the outstanding Notes except upon the payment or
prepayment of the Notes in accordance with the terms of this Agreement, and the
Notes. The Company will promptly cancel all Notes acquired by it or any
Affiliate pursuant to any payment, prepayment or purchase of Notes pursuant to
any provision of this Agreement and no Notes may be issued in substitution or
exchange for any such Notes. If, notwithstanding the foregoing (and without
curing any Default or Event of Default arising from a violation of the
foregoing), Notes shall be directly or indirectly owned or acquired by the
Company or any of its Affiliates, such Notes shall be deemed not to be
outstanding for the purposes of determining whether the holders of the requisite
percentage of the aggregate principal amount of Notes then outstanding approved
or consented to any amendment, waiver or consent to be given under this
Agreement or the Notes, or have directed the taking of any action provided
herein or in the Notes to be taken upon the direction of the holders of a
specified percentage of the aggregate principal amount of Notes then
outstanding.
Section 8.6. Make-Whole Amount. The term "Make-Whole Amount" means,
with respect to any Note, an amount equal to the excess, if any, of the
Discounted Value of the Remaining Scheduled Payments with respect to the Called
Principal of such Note over the amount of such Called Principal, provided that
the Make-Whole Amount may in no event be less than zero. For the purposes of
determining the Make-Whole Amount, the following terms have the following
meanings:
"Called Principal" means, with respect to any Note, the
principal of such Note that is to be prepaid pursuant to Section 8.2 or
has become or is declared to be immediately due and payable pursuant to
Section 12.1, as the context requires.
"Discounted Value" means, with respect to the Called Principal
of any Note, the amount obtained by discounting all Remaining Scheduled
Payments with respect to such Called Principal from their respective
scheduled due dates to the Settlement Date with respect to such Called
Principal, in accordance with accepted financial practice and at a
discount factor (applied on the same periodic basis as that on which
interest on the Notes is payable) equal to the Reinvestment Yield with
respect to such Called Principal.
"Reinvestment Yield" means, with respect to the Called
Principal of any Note, 0.50% over the yield to maturity implied by (i)
the yields reported, as of 10:00 A.M. (New York City time) on the
second Business Day preceding the Settlement Date with respect to such
Called Principal, on the display designated as "Page 500" on the
Telerate Access Service (or such other display as may replace Page 500
on Telerate Access
-17-
23
HEALTHCARE REALTY TRUST INCORPORATED NOTE PURCHASE AGREEMENT
Service) for actively traded U.S. Treasury securities having a maturity
equal to the Remaining Average Life of such Called Principal as of such
Settlement Date, or (ii) if such yields are not reported as of such
time or the yields reported as of such time are not ascertainable, the
Treasury Constant Maturity Series Yields reported, for the latest day
for which such yields have been so reported as of the second Business
Day preceding the Settlement Date with respect to such Called
Principal, in Federal Reserve Statistical Release H. 15 (519) (or any
comparable successor publication) for actively traded U.S. Treasury
securities having a constant maturity equal to the Remaining Average
Life of such Called Principal as of such Settlement Date. Such implied
yield will be determined, if necessary, by (a) converting U.S. Treasury
▇▇▇▇ quotations to bond-equivalent yields in accordance with accepted
financial practice and (b) interpolating linearly between (1) the
actively traded U.S. Treasury security with the duration closest to and
greater than the Remaining Average Life and (2) the actively traded
U.S. Treasury security with the duration closest to and less than the
Remaining Average Life.
"Remaining Average Life" means, with respect to any Called
Principal, the number of years (calculated to the nearest one-twelfth
year) obtained by dividing (i) such Called Principal into (ii) the sum
of the products obtained by multiplying (a) the principal component of
each Remaining Scheduled Payment with respect to such Called Principal
by (b) the number of years (calculated to the nearest one-twelfth year)
that will elapse between the Settlement Date with respect to such
Called Principal and the scheduled due date of such Remaining Scheduled
Payment.
"Remaining Scheduled Payments" means, with respect to the
Called Principal of any Note, all payments of such Called Principal and
interest thereon that would be due after the Settlement Date with
respect to such Called Principal if no payment of such Called Principal
were made prior to its scheduled due date, provided that if such
Settlement Date is not a date on which interest payments are due to be
made under the terms of the Notes, then the amount of the next
succeeding scheduled interest payment will be reduced by the amount of
interest accrued to such Settlement Date and required to be paid on
such Settlement Date pursuant to Section 8.2 or 12.1.
"Settlement Date" means, with respect to the Called Principal
of any Note, the date on which such Called Principal is to be prepaid
pursuant to Section 8.2 or has become or is declared to be immediately
due and payable pursuant to Section 12.1, as the context requires.
SECTION 9. AFFIRMATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
Section 9.1. Compliance with Law. The Company will and will cause each
of its Subsidiaries to comply with all laws, ordinances or governmental rules or
regulations to which each of them is subject, including, without limitation,
Environmental Laws, and will obtain and maintain in effect all licenses,
certificates, permits, franchises and other governmental authorizations
necessary to the ownership of their
-18-
24
HEALTHCARE REALTY TRUST INCORPORATED NOTE PURCHASE AGREEMENT
respective properties or to the conduct of their respective businesses, in each
case to the extent necessary to ensure that non-compliance with such laws,
ordinances or governmental rules or regulations or failures to obtain or
maintain in effect such licenses, certificates, permits, franchises and other
governmental authorizations could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
Section 9.2. Insurance. The Company will and will cause each of its
Subsidiaries or the respective tenants of the Company and its Subsidiaries to
maintain, with financially sound and reputable insurers, insurance with respect
to their respective properties and businesses against such casualties and
contingencies, of such types, on such terms and in such amounts (including
deductibles, co-insurance and self-insurance, if adequate reserves are
maintained with respect thereto) as is customary in the case of entities of
established reputations engaged in the same or a similar business and similarly
situated.
Section 9.3. Maintenance of Properties. The Company will and will cause
each of its Subsidiaries or the respective tenants of the Company and its
Subsidiaries to maintain and keep, or cause to be maintained and kept, their
respective properties in good repair, working order and condition (other than
ordinary wear and tear), so that the business carried on in connection therewith
may be properly conducted at all times, provided that this Section shall not
prevent the Company or any Subsidiary from discontinuing the operation and the
maintenance of any of its properties if such discontinuance is desirable in the
conduct of its business and the Company has concluded that such discontinuance
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
Section 9.4. Payment of Taxes and Claims. The Company will and will
cause each of its Subsidiaries or the respective tenants of the Company and its
Subsidiaries to file all tax returns required to be filed in any jurisdiction
and to pay and discharge all taxes shown to be due and payable on such returns
and all other taxes, assessments, governmental charges, or levies imposed on
them or any of their properties, assets, income or franchises, all trade
accounts payable in accordance with usual and customary business terms, and all
claims for work, labor or materials, to the extent such taxes and assessments
have become due and payable and before they have become delinquent and all
claims for which sums have become due and payable that have or might become a
Lien on properties or assets of the Company or any Subsidiary, provided that
neither the Company nor any Subsidiary need pay any such tax or assessment or
claims if (i) the amount, applicability or validity thereof is contested by the
Company or such Subsidiary on a timely basis in good faith and in appropriate
proceedings, and the Company or such Subsidiary has established reserves,
reasonably deemed by it to be adequate, on the books of the Company or such
Subsidiary with respect thereto or (ii) the nonpayment of all such taxes and
assessments in the aggregate could not reasonably be expected to have a Material
Adverse Effect.
Section 9.5. Corporate Existence, Maintenance of REIT Status. (a) The
Company will at all times preserve and keep in full force and effect its
corporate existence. Subject to Sections 10.7 and 10.8, the Company will at all
times preserve and keep in full force and effect the corporate existence of each
of its Subsidiaries and all licenses and permits of the Company and its
Subsidiaries unless, in the good faith judgment of the Company, the termination
of or failure to preserve and keep in full force and effect such corporate
existence, licenses or permits could not, individually or in the aggregate, have
a Material Adverse Effect.
-19-
25
HEALTHCARE REALTY TRUST INCORPORATED NOTE PURCHASE AGREEMENT
(b) The Company will preserve and maintain its qualification as a
real estate investment trust under subchapter M of the Code (and any successor
provisions thereto) and the applicability to the Company and its stockholders of
the method of taxation provided for in Section 857(b) of the Code (and any
successor provision thereto).
SECTION 10. NEGATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
Section 10.1. Consolidated Adjusted Net Worth. The Company will not at
any time permit Consolidated Adjusted Net Worth to be less than $750,000,000;
provided, however, that the Company shall be permitted to pay dividends to the
extent required by the provisions of subchapter M of the Code to maintain the
deductibility from its income of dividends paid by it so long as after giving
effect to the payment of such dividends, no Default or Event of Default
described in paragraph (a), (b), (h), (i) or (j) of Section 11 shall have
occurred and be continuing.
Section 10.2. Incurrence of Debt. The Company will not, and will not
permit any Subsidiary to, directly or indirectly, create, incur, assume,
guarantee, or otherwise become directly or indirectly liable with respect to,
any Debt, unless on the date the Company or such Subsidiary becomes liable with
respect to any such Debt and immediately after giving effect thereto and the
concurrent retirement of any other Debt,
(a) no Default or Event of Default exists,
(b) Consolidated Debt does not exceed 40% of Consolidated
Adjusted Capitalization, and
(c) in the case of Mortgage Debt, Consolidated Debt does
not exceed 40% of Consolidated Adjusted Capitalization and Consolidated
Mortgage Debt does not exceed 25% of Consolidated Adjusted
Capitalization.
For the purposes of this Section 10.2, any Person becoming a Subsidiary after
the date hereof shall be deemed, at the time it becomes a Subsidiary, to have
incurred all of its then outstanding Debt, and any Person extending, renewing or
refunding any Debt shall be deemed to have incurred such Debt at the time of
such extension, renewal or refunding.
Section 10.3. Subsidiary Debt. The Company will not at any time permit
any Subsidiary to, directly or indirectly, create, incur, assume, guarantee,
have outstanding, or otherwise become or remain directly or indirectly liable
with respect to, any Debt other than:
(a) Debt of a Subsidiary owed to the Company or a
Wholly-Owned Subsidiary;
(b) Debt of a Subsidiary outstanding at the time such
Subsidiary becomes a Subsidiary, provided that (i) such Debt shall not
have been incurred in contemplation of such Subsidiary becoming a
Subsidiary and (ii) immediately after such Subsidiary
-20-
26
HEALTHCARE REALTY TRUST INCORPORATED NOTE PURCHASE AGREEMENT
becomes a Subsidiary no Default or Event of Default shall exist, and
provided, further, that such Debt may not be extended, renewed or
refunded except as otherwise permitted by this Agreement;
(c) Mortgage Debt incurred in accordance with Section
10.2(c); and
(d) the Permitted Subsidiaries Guarantees.
Section 10.4. Interest Charges Coverage Ratio. The Company will not
permit the Interest Charges Coverage Ratio on any date to be less than 3.25 to
1.00.
Section 10.5. Unencumbered Asset Coverage. The Company will at all
times keep and maintain Unencumbered Assets at an amount not less than 200% of
Unsecured Debt.
Section 10.6. Liens. The Company will not, and will not permit any of
its Subsidiaries to, directly or indirectly create, incur, assume or permit to
exist (upon the happening of a contingency or otherwise) any Lien on or with
respect to any property or asset (including, without limitation, any document or
instrument in respect of goods or accounts receivable) of the Company or any
such Subsidiary, whether now owned or held or hereafter acquired, or any income
or profits therefrom, or assign or otherwise convey any right to receive income
or profits, except:
(a) Liens for taxes, assessments or other governmental
charges the payment of which is not at the time required by Section
9.4;
(b) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other similar Liens, in each
case, incurred in the ordinary course of business for sums not yet due
or the payment of which is not at the time required by Sections 9.1 or
9.4;
(c) any attachment or judgment Lien, unless the judgment
it secures shall not, within 30 days after the entry thereof, have been
discharged or execution thereof stayed pending appeal;
(d) Liens on properties securing security deposits of
tenants, provided that the aggregate amount of such security deposits
secured by such Liens shall not exceed 5% of Consolidated Adjusted
Capitalization at any time outstanding;
(e) Liens incidental to the conduct of business or the
ownership of properties and assets (including Liens in connection with
worker's compensation, unemployment insurance and other like laws,
warehousemen's and attorneys' liens and statutory landlords' liens) and
Liens to secure the performance of bids, tenders or trade contracts, or
to secure statutory obligations, surety or appeal bonds or other Liens
of like general nature incurred in the ordinary course of business and
not in connection with the borrowing of money; provided in each case,
the obligation secured is not overdue or, if overdue, is being
contested in good faith by appropriate actions or proceedings;
-21-
27
HEALTHCARE REALTY TRUST INCORPORATED NOTE PURCHASE AGREEMENT
(f) minor survey exceptions or minor encumbrances,
easements or reservations, or rights of others for rights-of-way,
utilities and other similar purposes, or zoning or other restrictions
as to the use of real properties, which are necessary for the conduct
of the activities of the Company and its Subsidiaries or which
customarily exist on properties of corporations engaged in similar
activities and similarly situated and which do not in any event
materially impair their use in the operation of the business of the
Company and its Subsidiaries;
(g) Liens securing Mortgage Debt incurred within the
limitations of Section 10.2;
(h) Liens on property or assets of a Subsidiary securing
Debt owing to the Company or to any of its Subsidiaries;
(i) any Lien created to secure all or any part of the
purchase price, or to secure Debt incurred or assumed to pay all or any
part of the purchase price or cost of construction, of property (or any
improvement thereon) acquired or constructed by the Company or a
Subsidiary after the date of the Closing, provided that
(i) any such Lien shall extend solely to the
item or items of such property (or improvement thereon) so
acquired or constructed and, if required by the terms of the
instrument originally creating such Lien, other property (or
improvement thereon) which is an improvement to or is acquired
for specific use in connection with such acquired or
constructed property (or improvement thereon) or which is real
property being improved by such acquired or constructed
property (or improvement thereon),
(ii) the Debt secured by any such Lien shall be
incurred within the limitations of Section 10.2,
(iii) the principal amount of the Debt secured by
any such Lien shall at no time exceed an amount equal to the
lesser of (A) the cost to the Company or such Subsidiary of
the property (or improvement thereon) so acquired or
constructed and (B) the Fair Market Value (as determined in
good faith by the board of directors of the Company) of such
property (or improvement thereon) at the time of such
acquisition or construction, and
(iv) any such Lien shall be created
contemporaneously with, or within 60 days after, the
acquisition or construction of such property;
(j) any Lien existing on property of a Person immediately
prior to its being consolidated with or merged into the Company or a
Subsidiary or its becoming a Subsidiary, or any Lien existing on any
property acquired by the Company or any Subsidiary at the time such
property is so acquired (whether or not the Debt secured thereby shall
have been assumed), provided that (i) no such Lien shall have been
created or assumed in contemplation of such consolidation or merger or
such Person's becoming
-22-
28
HEALTHCARE REALTY TRUST INCORPORATED NOTE PURCHASE AGREEMENT
a Subsidiary or such acquisition of property, and (ii) each such Lien
shall extend solely to the item or items of property so acquired and,
if required by the terms of the instrument originally creating such
Lien, other property which is an improvement to or is acquired for
specific use in connection with such acquired property.
Section 10.7. Merger, Consolidation, etc. The Company will not
consolidate with or merge with any other corporation unless (i) the Company is
the surviving or continuing corporation; and (ii) immediately after giving
effect to such transaction (A) no Default or Event of Default would exist, and
(B) the Company would be permitted by the provisions of Section 10.2 hereof to
incur at least $1.00 of additional Mortgage Debt.
Section 10.8. Sales of Assets. (a) The Company will not, and will not
permit any Subsidiary to, engage in any Asset Disposition unless, (x) after
giving effect to such Asset Disposition, no Default or Event of Default shall
have occurred and be continuing and (y) such Asset Disposition does not involve
any substantial part of the assets of the Company and its Subsidiaries. An Asset
Disposition shall be deemed to involve a "substantial part" of the assets of the
Company and its Subsidiaries (i) if the book value of the assets subject to such
Asset Disposition, when added to the book value of all other assets subject to
other Asset Dispositions during the same fiscal year exceeds 15% of Consolidated
Total Assets determined as of the end of the immediately preceding fiscal year,
or (ii) if the portion of consolidated total revenue for the preceding fiscal
year attributable to the assets subject to such Asset Disposition, when added to
the portion of consolidated total revenue for the preceding fiscal year
attributable to all other assets subject to other Asset Dispositions during the
same fiscal year exceeds 15% of consolidated total revenue for the fiscal year
immediately preceding such Asset Disposition; provided, however, that in any
computation of "substantial part" there shall be excluded any Asset Disposition,
to the extent that the proceeds thereof are applied within 180 days after the
receipt of the proceeds of such Asset Disposition to either (i) the voluntary
prepayment of the Notes on a pro rata basis pursuant to Section 8.2, or (ii) the
purchase of other similar assets for use in the business of the Company and its
Subsidiaries.
Section 10.9. Line of Business. (a) The Company will not, and will not
permit any of its Subsidiaries to, engage in any business if, as a result, the
general nature of the business in which the Company and its Subsidiaries, taken
as a whole, would then be engaged would be substantially changed from the
general nature of the business in which the Company and its Subsidiaries, taken
as a whole, are engaged on the date of this Agreement as described in the
Disclosure Document.
(b) Without limiting paragraph (a) of this Section, the Company
will not, and will not permit any Subsidiary to, make any long-term real estate
investment other than investments involving the direct or indirect ownership of
health-care and related facilities, including without limitation acute care
hospitals, rehabilitation hospitals, physician clinics, ambulatory surgery
centers, clinical laboratories, ancillary hospital facilities, long-term care
facilities, medical centers, comprehensive ambulatory care centers, office
buildings related to health care and other real estate predominantly occupied by
Persons engaging in activities related to health care.
-23-
29
HEALTHCARE REALTY TRUST INCORPORATED NOTE PURCHASE AGREEMENT
Section 10.10. Transactions with Affiliates. The Company will not and
will not permit any Subsidiary to enter into directly or indirectly any Material
transaction or Material group of related transactions (including without
limitation the purchase, lease, sale or exchange of properties of any kind or
the rendering of any service) with any Affiliate (other than the Company, any
Wholly-Owned Subsidiary or Specified Affiliate), except in the ordinary course
and pursuant to the reasonable requirements of the Company's or such
Subsidiary's business and upon fair and reasonable terms no less favorable to
the Company or such Subsidiary than would be obtainable in a comparable
arm's-length transaction with a Person not an Affiliate.
Section 10.11. Restricted Investments. The Company will not, and will
not permit any Subsidiary to (i) make any Restricted Investment if, after giving
effect thereto, the aggregate amount of Restricted Investments held by the
Company and its Subsidiaries would exceed 10% of Consolidated Total Assets or
(ii) make any Unimproved Real Estate Investments, if after giving effect
thereto, the aggregate amount of Unimproved Real Estate Investments would exceed
10% of Consolidated Total Assets.
Section 10.12. New Material Subsidiaries. The Company shall cause any
entity which becomes a Material Subsidiary from and after the date of the
Closing to execute and deliver a Guaranty Agreement in the form attached as
Exhibit 2(b) hereto, together with a certificate dated the date of execution and
delivery of such Guaranty Agreement signed by the President, a Vice President or
Senior Financial Officer of such Material Subsidiary to the effect that such
Guaranty Agreement has been duly authorized, executed and delivered by such
Material Subsidiary and such Guaranty Agreement constitutes the legal, valid and
binding obligation, contract and agreement of such Material Subsidiary
enforceable in accordance with its terms.
SECTION 11. EVENTS OF DEFAULT.
An "Event of Default" shall exist if any of the following conditions or
events shall occur and be continuing:
(a) the Company defaults in the payment of any principal
or Make-Whole Amount, if any, on any Note when the same becomes due and
payable, whether at maturity or at a date fixed for prepayment or by
declaration or otherwise; or
(b) the Company defaults in the payment of any interest
on any Note for more than five days after the same becomes due and
payable; or
(c) the Company defaults in the performance or observance
of or compliance with any provision contained in Sections 9.5(b) or 10;
or
(d) the Company or any Material Subsidiary defaults in
the performance or observance of or compliance with any provision
contained herein or in any Guaranty Agreement (other than those
referred to in paragraphs (a), (b) and (c) of this Section 11) and such
default is not remedied within 30 days after the earlier of (i) a
Responsible Officer obtaining actual knowledge of such default and (ii)
the Company receiving written notice of such default from any holder of
a Note (any such written notice to be
-24-
30
HEALTHCARE REALTY TRUST INCORPORATED NOTE PURCHASE AGREEMENT
identified as a "notice of default" and to refer specifically to this
paragraph (d) of Section 11) requiring such default to be remedied; or
(e) any representation or warranty made in writing by or
on behalf of the Company or by any officer of the Company in this
Agreement proves to have been false or incorrect in any respect on the
date as of which made or deemed to have been made, or any
representation or warranty in any writing furnished in connection with
the transactions contemplated hereby proves to have been false or
incorrect in any Material respect on the date as of which made or
deemed to have been made; or
(f) any representation or warranty made in writing by or
on behalf of any Material Subsidiary or by any officer of such Material
Subsidiary in any Guaranty Agreement proves to have been false or
incorrect in any respect on the date as of which made or deemed to have
been made, or any representation or warranty in any writing furnished
in connection with the transactions contemplated hereby proves to have
been false or incorrect in any Material respect on the date as of which
made or deemed to have been made; or
(g) the obligations of any Material Subsidiary contained
in any Guaranty Agreement shall cease to be in full force and effect
for any reason whatsoever, including, without limitation, the
determination by any governmental body or court that any Guaranty
Agreement is invalid, void or unenforceable or any Material Subsidiary
shall contest or deny in writing the validity or enforceability of any
Guaranty Agreement; or
(h) (i) the Company or any Subsidiary is in default (as
principal or as guarantor or other surety) in the payment of any
principal of or premium or make-whole amount or interest or any other
payment on any Debt that is outstanding in an aggregate principal
amount in excess of $10,000,000 after the same becomes due and payable,
or (ii) the Company or any Subsidiary is in default in the performance
of or compliance with any term of any evidence of any Debt in an
aggregate outstanding principal amount in excess of $10,000,000 or of
any mortgage, indenture or other agreement relating thereto or any
other condition exists, and as a consequence of such default or
condition such Debt has become, or has been declared, due and payable
before its stated maturity or before its regularly scheduled dates of
payment or (iii) as a consequence of the occurrence or continuation of
any event or condition (other than the passage of time, the right of
the holder of Debt to convert such Debt into equity interests, or the
exercise by the Company or any Subsidiary of its right of optional
prepayment of Debt), (x) the Company or any Subsidiary has become
obligated to purchase or repay Debt before its regular maturity or
before its regularly scheduled dates of payment in an aggregate
outstanding principal amount in excess of $10,000,000, or (y) one or
more Persons have the right to require the Company or any Subsidiary so
to purchase or repay such Debt; or
(i) the Company or any Subsidiary (i) is generally not
paying, or admits in writing its inability to pay, its debts as they
become due, (ii) files, or consents by answer or otherwise to the
filing against it of, a petition for relief or reorganization or
arrangement or any other petition in bankruptcy, for liquidation or to
take advantage of
-25-
31
HEALTHCARE REALTY TRUST INCORPORATED NOTE PURCHASE AGREEMENT
any bankruptcy, insolvency, reorganization, moratorium or other similar
law of any jurisdiction, (iii) makes an assignment for the benefit of
its creditors, (iv) consents to the appointment of a custodian,
receiver, trustee or other officer with similar powers with respect to
it or with respect to any substantial part of its property, (v) is
adjudicated as insolvent or to be liquidated, or (vi) takes corporate
action for the purpose of any of the foregoing; or
(j) a court or governmental authority of competent
jurisdiction enters an order appointing, without consent by the Company
or any Subsidiary, a custodian, receiver, trustee or other officer with
similar powers with respect to it or with respect to any substantial
part of its property, or constituting an order for relief or approving
a petition for relief or reorganization or any other petition in
bankruptcy or for liquidation or to take advantage of any bankruptcy or
insolvency law of any jurisdiction, or ordering the dissolution,
winding-up or liquidation of the Company or any Subsidiary, or any such
petition shall be filed against the Company or any Subsidiary and such
petition shall not be dismissed within 90 days; or
(k) a final judgment or judgments for the payment of
money aggregating in excess of $10,000,000 are rendered against one or
more of the Company and its Subsidiaries and which judgments are not,
within 30 days after entry thereof, bonded, discharged or stayed
pending appeal; or
(l) if (i) any Plan shall fail to satisfy the minimum
funding standards of ERISA or the Code for any plan year or part
thereof or a waiver of such standards or extension of any amortization
period is sought or granted under section 412 of the Code, (ii) a
notice of intent to terminate any Plan shall have been or is reasonably
expected to be filed with the PBGC or the PBGC shall have instituted
proceedings under ERISA section 4042 to terminate or appoint a trustee
to administer any Plan or the PBGC shall have notified the Company or
any ERISA Affiliate that a Plan may become a subject of any such
proceedings, (iii) the aggregate "amount of unfunded benefit
liabilities" (within the meaning of section 4001(a)(18) of ERISA) under
all Plans, determined in accordance with Title IV of ERISA, shall
exceed $5,000,000, (iv) the Company or any ERISA Affiliate shall have
incurred or is reasonably expected to incur any liability pursuant to
Title I or IV of ERISA or the penalty or excise tax provisions of the
Code relating to employee benefit plans, (v) the Company or any ERISA
Affiliate withdraws from any Multiemployer Plan, or (vi) the Company or
any Subsidiary establishes or amends any employee welfare benefit plan
that provides post-employment welfare benefits in a manner that would
increase the liability of the Company or any Subsidiary thereunder; and
any such event or events described in clauses (i) through (vi) above,
either individually or together with any other such event or events,
could reasonably be expected to have a Material Adverse Effect. As used
in this Section 11(l), the terms "employee benefit plan" and "employee
welfare benefit plan" shall have the respective meanings assigned to
such terms in Section 3 of ERISA.
-26-
32
Healthcare Realty Trust Incorporated Note Purchase Agreement
SECTION 12. REMEDIES ON DEFAULT, ETC.
Section 12.1. Acceleration. If an Event of Default described in
paragraph (i) or (j) of Section 11 has occurred, all the Notes then outstanding
shall automatically become immediately due and payable. If any other Event of
Default has occurred and is continuing, any holder or holders of more than 41%
in principal amount of the Notes at the time outstanding may at any time at its
or their option, by notice or notices to the Company, declare all the Notes
then outstanding to be immediately due and payable. If any Event of Default
described in paragraph (a) or (b) of Section 11 has occurred and is continuing,
any holder of Notes at the time outstanding affected by such Event of Default
may at any time, at its option, by notice or notices to the Company, declare
all the Notes held by it to be immediately due and payable. Upon any Notes
becoming due and payable under this Section 12.1, whether automatically or by
declaration, such Notes will forthwith mature and the entire unpaid principal
amount of such Notes, plus (x) all accrued and unpaid interest thereon and (y)
the Make-Whole Amount determined in respect of such principal amount (to the
full extent permitted by applicable law), shall all be immediately due and
payable, in each and every case without presentment, demand, protest or further
notice, all of which are hereby waived. The Company acknowledges, and the
parties hereto agree, that each holder of a Note has the right to maintain its
investment in the Notes free from repayment by the Company (except as herein
specifically provided for), and that the provision for payment of a Make-Whole
Amount by the Company in the event that the Notes are prepaid or are
accelerated as a result of an Event of Default, is intended to provide
compensation for the deprivation of such right under such circumstances.
Section 12.2. Other Remedies. If any Default or Event of Default has
occurred and is continuing, and irrespective of whether any Notes have become
or have been declared immediately due and payable under Section 12.1, the
holder of any Note at the time outstanding may proceed to protect and enforce
the rights of such holder by an action at law, suit in equity or other
appropriate proceeding, whether for the specific performance of any agreement
contained herein or in any Note, or for an injunction against a violation of
any of the terms hereof or thereof, or in aid of the exercise of any power
granted hereby or thereby or by law or otherwise.
Section 12.3. Rescission. At any time after any Notes have been
declared due and payable pursuant to the second or third sentence of Section
12.1, the holders of not less than 66-2/3% in principal amount of the Notes
then outstanding, by written notice to the Company, may rescind and annul any
such declaration and its consequences if (a) the Company has paid all overdue
interest on the Notes, all principal of and Make-Whole Amount, if any, on any
Notes that are due and payable and are unpaid other than by reason of such
declaration, and all interest on such overdue principal and Make-Whole Amount,
if any, and (to the extent permitted by applicable law) any overdue interest in
respect of the Notes, at the Default Rate, (b) all Events of Default and
Defaults, other than non-payment of amounts that have become due solely by
reason of such declaration, have been cured or have been waived pursuant to
Section 17, and (c) no judgment or decree has been entered for the payment of
any monies due pursuant hereto or to the Notes. No rescission and annulment
under this Section 12.3 will extend to or affect any subsequent Event of
Default or Default or impair any right consequent thereon.
-27-
33
Healthcare Realty Trust Incorporated Note Purchase Agreement
Section 12.4. No Waivers or Election of Remedies, Expenses, etc. No
course of dealing and no delay on the part of any holder of any Note in
exercising any right, power or remedy shall operate as a waiver thereof or
otherwise prejudice such holder's rights, powers or remedies. No right, power
or remedy conferred by this Agreement, any Note or any Guaranty Agreement upon
any holder thereof shall be exclusive of any other right, power or remedy
referred to herein or therein or now or hereafter available at law, in equity,
by statute or otherwise. Without limiting the obligations of the Company under
Section 15, the Company will pay to the holder of each Note on demand such
further amount as shall be sufficient to cover all costs and expenses of such
holder incurred in any enforcement or collection under this Section 12,
including, without limitation, reasonable attorneys' fees for one or more
counsel, each of which represents all of the holders, expenses and
disbursements.
SECTION 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
Section 13.1. Registration of Notes. The Company shall keep at its
principal executive office a register for the initial registration and
registration of transfers of Notes. The name and address of each holder of one
or more Notes, each transfer thereof and the name and address of each
transferee of one or more Notes shall be registered in such register. Prior to
due presentment for registration of transfer, the Person in whose name any Note
shall be registered shall be deemed and treated as the owner and holder thereof
for all purposes hereof, and the Company shall not be affected by any notice or
knowledge to the contrary. The Company shall give to any holder of a Note that
is an Institutional Investor promptly upon request therefor, a complete and
correct copy of the names and addresses of all registered holders of Notes.
Section 13.2. Transfer and Exchange of Notes. Upon surrender of any
Note at the principal executive office of the Company for registration of
transfer or exchange (and in the case of a surrender for registration of
transfer, duly endorsed or accompanied by a written instrument of transfer duly
executed by the registered holder of such Note or his attorney duly authorized
in writing and accompanied by the address for notices of each transferee of
such Note or part thereof), the Company shall execute and deliver, at the
Company's expense (except as provided below), one or more new Notes (as
requested by the holder thereof) in exchange therefor, in an aggregate
principal amount equal to the unpaid principal amount of the surrendered Note.
Each such new Note shall be payable to such Person as such holder may request
and shall be substantially in the form of Exhibit 1. Each such new Note shall
be dated and bear interest from the date to which interest shall have been paid
on the surrendered Note or dated the date of the surrendered Note if no
interest shall have been paid thereon. The Company may require payment of a sum
sufficient to cover any stamp tax or governmental charge imposed in respect of
any such transfer of Notes. Notes shall not be transferred in denominations
less than an amount equal to 0.5% of the outstanding principal amount of the
Notes at the time of such transfer, provided that if necessary to enable the
registration of transfer by a holder of its entire holding of Notes, one Note
may be in a denomination less than such amount. Any transferee of a Note, or
purchaser of a participation therein, shall, by its acceptance of such Note be
deemed to make the same representations to the Company regarding the Note or
participation as you and the Other Purchasers have made pursuant to Section
6.2, provided that such entity may (in reliance upon information provided by
the Company, which shall not be unreasonably withheld) make a
-28-
34
Healthcare Realty Trust Incorporated Note Purchase Agreement
representation to the effect that the purchase by such entity of any Note will
not constitute a non-exempt prohibited transaction under Section 406(a) of
ERISA.
Section 13.3. Replacement of Notes. Upon receipt by the Company of
evidence reasonably satisfactory to it of the ownership of and the loss, theft,
destruction or mutilation of any Note (which evidence shall be, in the case of
an Institutional Investor, notice from such Institutional Investor of such
ownership and such loss, theft, destruction or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to it (provided that if the holder of such
Note is, or is a nominee for, an original Purchaser or another holder
of a Note with a minimum net worth of at least $50,000,000, such
Person's own unsecured agreement of indemnity shall be deemed to be
satisfactory), or
(b) in the case of mutilation, upon surrender and
cancellation thereof,
the Company at its own expense shall execute and deliver, in lieu thereof, a
new Note, dated and bearing interest from the date to which interest shall have
been paid on such lost, stolen, destroyed or mutilated Note or dated the date
of such lost, stolen, destroyed or mutilated Note if no interest shall have
been paid thereon.
SECTION 14. PAYMENTS ON NOTES.
Section 14.1. Place of Payment. Subject to Section 14.2, payments of
principal, Make-Whole Amount, if any, and interest becoming due and payable on
the Notes shall be made in New York, New York at the principal office of
Citibank, N.A., in such jurisdiction. The Company may at any time, by notice to
each holder of a Note, change the place of payment of the Notes so long as such
place of payment shall be the principal office of a bank or trust company in
such jurisdiction.
Section 14.2. Home Office Payment. So long as you or your nominee
shall be the holder of any Note, and notwithstanding anything contained in
Section 14.1 or in such Note to the contrary, the Company will pay all sums
becoming due on such Note for principal, Make-Whole Amount, if any, and
interest by the method and at the address specified for such purpose below your
name in Schedule A, or by such other method or at such other address as you
shall have from time to time specified to the Company in writing for such
purpose, without the presentation or surrender of such Note or the making of
any notation thereon, except that upon written request of the Company made
concurrently with or reasonably promptly after payment in full of any Note, you
shall surrender such Note for cancellation, reasonably promptly after any such
request, to the Company at its principal executive office or at the place of
payment most recently designated by the Company pursuant to Section 14.1. The
Company will afford the benefits of this Section 14.2 to any Institutional
Investor that is the direct or indirect transferee of any Note purchased by you
under this Agreement and that has made the same agreement relating to such Note
as you have made in this Section 14.2.
-29-
35
Healthcare Realty Trust Incorporated Note Purchase Agreement
SECTION 15. EXPENSES, ETC.
Section 15.1. Transaction Expenses. Whether or not the transactions
contemplated hereby are consummated, the Company will pay all costs and
expenses (including reasonable attorneys' fees of a special counsel and, if
reasonably required, local or other counsel, provided that any such counsel
shall represent all of the holders) incurred by you and each Other Purchaser or
holder of a Note in connection with such transactions and in connection with
any amendments, waivers or consents under or in respect of this Agreement, the
Notes, any Guaranty Agreement or the Intercreditor Agreement (whether or not
such amendment, waiver or consent becomes effective), including, without
limitation: (a) the costs and expenses incurred in enforcing or defending (or
determining whether or how to enforce or defend) any rights under this
Agreement, the Notes, any Guaranty Agreement or the Intercreditor Agreement or
in responding to any subpoena or other legal process or informal investigative
demand issued in connection with this Agreement, the Notes, any Guaranty
Agreement or the Intercreditor Agreement, or by reason of being a holder of any
Note, and (b) the costs and expenses, including financial advisors' fees,
incurred in connection with the insolvency or bankruptcy of the Company or any
Subsidiary or in connection with any work-out or restructuring of the
transactions contemplated hereby and by the Notes. The Company will pay, and
will save you and each other holder of a Note harmless from, all claims in
respect of any fees, costs or expenses, if any, of brokers and finders (other
than those retained by you).
Section 15.2. Survival. The obligations of the Company under this
Section 15 will survive the payment or transfer of any Note, the enforcement,
amendment or waiver of any provision of this Agreement, the Notes, any Guaranty
Agreement or the Intercreditor Agreement, and the termination of this
Agreement.
SECTION 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall survive the
execution and delivery of this Agreement and the Notes, the purchase or
transfer by you of any Note or portion thereof or interest therein and the
payment of any Note, and may be relied upon by any subsequent holder of a Note,
regardless of any investigation made at any time by or on behalf of you or any
other holder of a Note. All statements contained in any certificate or other
instrument delivered by or on behalf of the Company or any Material Subsidiary
pursuant to this Agreement shall be deemed representations and warranties of
the Company under this Agreement. Subject to the preceding sentence, this
Agreement and the Notes embody the entire agreement and understanding between
you and the Company and supersede all prior agreements and understandings
relating to the subject matter hereof.
SECTION 17. AMENDMENT AND WAIVER.
Section 17.1. Requirements. This Agreement and the Notes may be
amended, and the observance of any term hereof or of the Notes may be waived
(either retroactively or prospectively), with (and only with) the written
consent of the Company and the Required Holders, except that (a) no amendment
or waiver of any of the provisions of Section 1, 2, 3, 4, 5
-30-
36
Healthcare Realty Trust Incorporated Note Purchase Agreement
or 6 hereof, or any defined term (as it is used therein), will be effective as
to you unless consented to by you in writing, and (b) no such amendment or
waiver may, without the written consent of the holder of each Note at the time
outstanding affected thereby, (i) subject to the provisions of Section 12
relating to acceleration or rescission, change the amount or time of any
prepayment or payment of principal of, or change the rate or the time of
payment or method of computation of interest or of the Make-Whole Amount on,
the Notes, (ii) change the percentage of the principal amount of the Notes the
holders of which are required to consent to any such amendment or waiver, or
(iii) amend any of Sections 8, 11(a), 11(b), 12, 17 or 20.
Section 17.2. Solicitation of Holders of Notes.
(a) Solicitation. The Company will provide each holder of
the Notes (irrespective of the amount of Notes then owned by it) with
sufficient information, sufficiently far in advance of the date a decision is
required, to enable such holder to make an informed and considered decision
with respect to any proposed amendment, waiver or consent in respect of any of
the provisions hereof or of the Notes. The Company will deliver executed or
true and correct copies of each amendment, waiver or consent effected pursuant
to the provisions of this Section 17 to each holder of outstanding Notes
promptly following the date on which it is executed and delivered by, or
receives the consent or approval of, the requisite holders of Notes.
(b) Payment. The Company will not directly or indirectly pay
or cause to be paid any remuneration, whether by way of supplemental or
additional interest, fee or otherwise, or grant any security, to any holder of
Notes as consideration for or as an inducement to the entering into by any
holder of Notes or any waiver or amendment of any of the terms and provisions
hereof or of the Notes unless such remuneration is concurrently paid, or
security is concurrently granted, on the same terms, ratably to each holder of
Notes then outstanding whether or not such holder consented to such waiver or
amendment.
Section 17.3. Binding Effect, etc. Any amendment or waiver consented
to as provided in this Section 17 applies equally to all holders of Notes and
is binding upon them and upon each future holder of any Note and upon the
Company without regard to whether such Note has been marked to indicate such
amendment or waiver. No such amendment or waiver will extend to or affect any
obligation, covenant, agreement, Default or Event of Default not expressly
amended or waived or impair any right consequent thereon. No course of dealing
between the Company and the holder of any Note nor any delay in exercising any
rights hereunder or under any Note or Guaranty Agreement shall operate as a
waiver of any rights of any holder of such Note. As used herein, the term "this
Agreement" and references thereto shall mean this Agreement as it may from time
to time be amended or supplemented.
Section 17.4. Termination of Permitted Subsidiary Guarantees. (a) The
provisions of Section 17.1 notwithstanding, upon the satisfaction of the
conditions set forth in Section 17.4(b), the Permitted Subsidiary Guarantees of
the Notes shall terminate and this Agreement and the Other Agreements shall be
amended as follows:
-31-
37
Healthcare Realty Trust Incorporated Note Purchase Agreement
(i) The word "and" shall be inserted at the end of
Section 10.3(b), the semicolon and the word "and" at the end of
Section 10.3(c) shall be replaced with a period, and Section 10.3(d)
shall be deleted in its entirety; and
(ii) Section 10.12 shall be deleted in its entirety.
(b) The amendment described in paragraph (a) above and the
termination of the Permitted Subsidiary Guarantees of the Notes shall become
effective upon the delivery by the Company to each then Holder of the Notes of
an Officer's Certificate (the truth and accuracy of which shall be a further
condition to such effectiveness and such termination) to the effect that,
giving effect to such amendment and termination, no Default or Event of Default
has occurred and is continuing.
SECTION 18. NOTICES.
All notices and communications provided for hereunder shall be in
writing and sent (a) by telecopy if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid or otherwise provided for), or (b) by registered or certified
mail with return receipt requested (postage prepaid), or (c) by a recognized
overnight delivery service (with charges prepaid or otherwise provided for).
Any such notice must be sent:
(i) if to you or your nominee, to you or it at the
address specified for such communications in Schedule A, or at such
other address as you or it shall have specified to the Company in
writing,
(ii) if to any other holder of any Note, to such
holder at such address as such other holder shall have specified to
the Company in writing, or
(iii) if to the Company, to the Company at its
address set forth at the beginning hereof to the attention of Chairman
of the Board and President, or at such other address as the Company
shall have specified to the holder of each Note in writing.
Notices under this Section 18 will be deemed given only when actually received.
SECTION 19. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by you at the Closing (except the Notes
themselves), and (c) financial statements, certificates and other information
previously or hereafter furnished to you, may be reproduced by you by any
photographic, photostatic, microfilm, microcard, miniature photographic or
other similar process and you may destroy any original document so reproduced.
The Company agrees and stipulates that, to the extent permitted by applicable
law, any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding (whether or not the
original is in existence and whether or not such reproduction was made by you
in the regular
-32-
38
Healthcare Realty Trust Incorporated Note Purchase Agreement
course of business) and any enlargement, facsimile or further reproduction of
such reproduction shall likewise be admissible in evidence. This Section 19
shall not prohibit the Company or any other holder of Notes from contesting any
such reproduction to the same extent that it could contest the original, or
from introducing evidence to demonstrate the inaccuracy of any such
reproduction.
SECTION 20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "Confidential Information" means
information delivered to you by or on behalf of the Company or any Subsidiary
in connection with the transactions contemplated by or otherwise pursuant to
this Agreement that is proprietary in nature to the Company or such Subsidiary,
provided that such term does not include information that (a) was publicly
known or otherwise known to you prior to the time of such disclosure, (b)
subsequently becomes publicly known through no act or omission by you or any
person acting on your behalf, (c) otherwise becomes known to you other than
through disclosure by the Company or any Subsidiary or (d) constitutes
financial statements delivered to you under Section 7.1 that are otherwise
publicly available. You will maintain the confidentiality of such Confidential
Information in accordance with procedures adopted by you in good faith to
protect confidential information of third parties delivered to you, provided
that you may deliver or disclose Confidential Information to (i) your
directors, officers, employees, agents, attorneys and affiliates (to the extent
such disclosure reasonably relates to the administration of the investment
represented by your Notes), (ii) your financial advisors and other professional
advisors who agree to hold confidential the Confidential Information
substantially in accordance with the terms of this Section 20, (iii) any other
holder of any Note, (iv) any Institutional Investor to which you sell or offer
to sell such Note or any part thereof or any participation therein, (v) any
Institutional Investor from which you offer to purchase any Note of the
Company, (vi) any federal or state regulatory authority having jurisdiction
over you, (vii) the National Association of Insurance Commissioners or any
similar organization, or any nationally recognized rating agency that requires
access to information about your investment portfolio or (viii) any other
Person to which such delivery or disclosure may be necessary or appropriate (w)
to effect compliance with any law, rule, regulation or order applicable to you,
(x) in response to any subpoena or other legal process, (y) in connection with
any litigation to which you are a party or (z) if an Event of Default has
occurred and is continuing, to the extent you may reasonably determine such
delivery and disclosure to be necessary or appropriate in the enforcement or
for the protection of the rights and remedies under your Notes, this Agreement,
the Guaranty Agreements or the Intercreditor Agreement, provided that in the
case of disclosure pursuant to clause (viii)(x) above, you will make reasonable
efforts (without any liability for failure) to notify the Company in a timely
manner to allow the Company to appear and protect its interests. Each holder of
a Note, by its acceptance of a Note, will be deemed to have agreed to be bound
by and to be entitled to the benefits of this Section 20 as though it were a
party to this Agreement. On reasonable request by the Company in connection
with the delivery to any holder of a Note of information required to be
delivered to such holder under this Agreement or requested by such holder
(other than a holder that is a party to this Agreement or its nominee or any
other holder that shall have previously delivered such a confirmation), such
holder will confirm in writing that it is bound by the provisions of this
Section 20.
-33-
39
Healthcare Realty Trust Incorporated Note Purchase Agreement
SECTION 21. MISCELLANEOUS.
Section 21.1. Successors and Assigns. All covenants and other
agreements contained in this Agreement by or on behalf of any of the parties
hereto bind and inure to the benefit of their respective successors and assigns
(including, without limitation, any subsequent holder of a Note) whether so
expressed or not.
Section 21.2. Payments Due on Non-Business Days. Anything in this
Agreement or the Notes to the contrary notwithstanding, any payment of
principal of or Make-Whole Amount or interest on any Note that is due on a date
other than a Business Day shall be made on the next succeeding Business Day
without including the additional days elapsed in the computation of the
interest payable on such next succeeding Business Day.
Section 21.3. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall (to the full extent permitted by
law) not invalidate or render unenforceable such provision in any other
jurisdiction.
Section 21.4. Construction. Each covenant contained herein shall be
construed (absent express provision to the contrary) as being independent of
each other covenant contained herein, so that compliance with any one covenant
shall not (absent such an express contrary provision) be deemed to excuse
compliance with any other covenant. Where any provision herein refers to action
to be taken by any Person, or which such Person is prohibited from taking, such
provision shall be applicable whether such action is taken directly or
indirectly by such Person.
Section 21.5. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies hereof, each signed by fewer than all, but together signed by
all, of the parties hereto.
Section 21.6. Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be governed
by, the law of the State of New York excluding choice-of-law principles of the
law of such State that would require the application of the laws of a
jurisdiction other than such State.
* * * * *
-34-
40
Healthcare Realty Trust Incorporated Note Purchase Agreement
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to
the Company, whereupon the foregoing shall become a binding agreement between
you and the Company.
Very truly yours,
HEALTHCARE REALTY TRUST INCORPORATED
By
Name:
Title:
-35-
41
Healthcare Realty Trust Incorporated Note Purchase Agreement
The foregoing is hereby agreed to as of the date thereof.
[VARIATION]
By
------------------------------
Name:
Title:
-36-
42
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
▇▇▇▇ ▇▇▇▇▇▇▇ LIFE INSURANCE COMPANY $24,000,000
(for the General Account)
▇▇▇▇ ▇▇▇▇▇▇▇ Place
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Payments
All payments on account of the Notes or other obligations in accordance with
the provisions thereof shall be made by bank wire transfer of immediately
available funds for credit, not later than 12 noon, Boston time, to:
BankBoston
ABA #▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Account of: ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
Private Placement Collection Account
Account Number 541-55417
On Order of: [Name of Issuer and PPN Number]
[Full name, interest rate and maturity date of the Notes or other
obligations]
Notices
Contemporaneous with the above wire transfer, advice setting forth (1) the full
name, interest rate and maturity date of the Notes or other obligations; (2)
allocation of payment between principal and interest and any special payment;
and (3) name and address of Bank (or Trustee) from which wire transfer was
sent, shall be delivered or faxed and mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager, Investment Accounting Division, B-3
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
All notices with respect to prepayments, both scheduled and unscheduled,
whether partial or in full, and notice of maturity shall be delivered or faxed
and mailed to:
SCHEDULE A
(to Note Purchase Agreement)
43
Healthcare Realty Trust Incorporated Note Purchase Agreement
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager, Investment Accounting Division, B-3
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Law Division, T-50
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
All other communications which shall include, but not be limited to, financial
statements and certificates of compliance with financial covenants, shall be
delivered or faxed and mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Bond and Corporate Finance Group, T-57
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
A copy of any notices relating to change in issuer's name, address or principal
place of business or location of collateral and a copy of any legal opinions
shall be delivered or faxed and mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Law Division, T-50
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Name in which Notes are to be issued: ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
Taxpayer I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-2
44
Healthcare Realty Trust Incorporated Note Purchase Agreement
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
▇▇▇▇ ▇▇▇▇▇▇▇ LIFE INSURANCE COMPANY $8,000,000
(for the General Account-Closed Block)
▇▇▇▇ ▇▇▇▇▇▇▇ Place
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Payments
All payments on account of the Notes or other obligations in accordance with
the provisions thereof shall be made by bank wire transfer of immediately
available funds for credit, not later than 12 noon, Boston time, to:
BankBoston
ABA #▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Account of: ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
Private Placement Collection Account
Account Number 541-55417
On Order of: [Name of Issuer and PPN Number]
[Full name, interest rate and maturity date of the Notes or other
obligations]
Notices
Contemporaneous with the above wire transfer, advice setting forth (1) the full
name, interest rate and maturity date of the Notes or other obligations; (2)
allocation of payment between principal and interest and any special payment;
and (3) name and address of Bank (or Trustee) from which wire transfer was
sent, shall be delivered or faxed and mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager, Investment Accounting Division, B-3
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
All notices with respect to prepayments, both scheduled and unscheduled,
whether partial or in full, and notice of maturity shall be delivered or faxed
and mailed to:
A-3
45
Healthcare Realty Trust Incorporated Note Purchase Agreement
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager, Investment Accounting Division, B-3
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Law Division, T-50
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
All other communications which shall include, but not be limited to, financial
statements and certificates of compliance with financial covenants, shall be
delivered or faxed and mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Bond and Corporate Finance Group, T-57
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
A copy of any notices relating to change in issuer's name, address or principal
place of business or location of collateral and a copy of any legal opinions
shall be delivered or faxed and mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Law Division, T-50
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Name in which Notes are to be issued: ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
Taxpayer I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-4
46
Healthcare Realty Trust Incorporated Note Purchase Agreement
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
▇▇▇▇ ▇▇▇▇▇▇▇ LIFE INSURANCE COMPANY $2,000,000
(for Separate Account 1Z)
▇▇▇▇ ▇▇▇▇▇▇▇ Place
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Payments
All payments on account of the Notes or other obligations in accordance with
the provisions thereof shall be made by bank wire transfer of immediately
available funds for credit, not later than 12 noon, Boston time, to:
BankBoston
ABA #▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Account of: ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
Private Placement Collection Account
Account Number 541-55417
On Order of: [Name of Issuer and PPN Number]
[Full name, interest rate and maturity date of the Notes or other
obligations]
Notices
Contemporaneous with the above wire transfer, advice setting forth (1) the full
name, interest rate and maturity date of the Notes or other obligations; (2)
allocation of payment between principal and interest and any special payment;
and (3) name and address of Bank (or Trustee) from which wire transfer was
sent, shall be delivered or faxed and mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager, Investment Accounting Division, B-3
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
All notices with respect to prepayments, both scheduled and unscheduled,
whether partial or in full, and notice of maturity shall be delivered or faxed
and mailed to:
A-5
47
Healthcare Realty Trust Incorporated Note Purchase Agreement
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager, Investment Accounting Division, B-3
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Law Division, T-50
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
All other communications which shall include, but not be limited to, financial
statements and certificates of compliance with financial covenants, shall be
delivered or faxed and mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Bond and Corporate Finance Group, T-57
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
A copy of any notices relating to change in issuer's name, address or principal
place of business or location of collateral and a copy of any legal opinions
shall be delivered or faxed and mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Law Division, T-50
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Name in which Notes are to be issued: ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
Taxpayer I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-6
48
Healthcare Realty Trust Incorporated Note Purchase Agreement
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
▇▇▇▇ ▇▇▇▇▇▇▇ LIFE INSURANCE COMPANY $1,000,000
(for Separate Account 18)
▇▇▇▇ ▇▇▇▇▇▇▇ Place
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Payments
All payments on account of the Notes or other obligations in accordance with
the provisions thereof shall be made by bank wire transfer of immediately
available funds for credit, not later than 12 noon, Boston time, to:
Investors Bank & Trust Company
ABA #▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Account Number: 79650-9107
for further credit to Separate Account 18, Account 99266
On Order of: [Name of Issuer and PPN Number]
[Full name, interest rate and maturity date of the Notes or other
obligations]
Notices
Contemporaneous with the above wire transfer, advice setting forth (1) the full
name, interest rate and maturity date of the Notes or other obligations; (2)
allocation of payment between principal and interest and any special payment;
and (3) name and address of Bank (or Trustee) from which wire transfer was
sent, shall be delivered or faxed and mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager, Investment Accounting Division, B-3
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
All notices with respect to prepayments, both scheduled and unscheduled,
whether partial or in full, and notice of maturity shall be delivered or faxed
and mailed to:
A-7
49
Healthcare Realty Trust Incorporated Note Purchase Agreement
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager, Investment Accounting Division, B-3
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Law Division, T-50
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
All other communications which shall include, but not be limited to, financial
statements and certificates of compliance with financial covenants, shall be
delivered or faxed and mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Bond and Corporate Finance Group, T-57
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
A copy of any notices relating to change in issuer's name, address or principal
place of business or location of collateral and a copy of any legal opinions
shall be delivered or faxed and mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Law Division, T-50
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Name in which Notes are to be issued: ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
Taxpayer I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-8
50
Healthcare Realty Trust Incorporated Note Purchase Agreement
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
▇▇▇▇ ▇▇▇▇▇▇▇ VARIABLE LIFE INSURANCE COMPANY $4,750,000
▇▇▇▇ ▇▇▇▇▇▇▇ Place
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Payments
All payments on account of the Notes or other obligations in accordance with
the provisions thereof shall be made by bank wire transfer of immediately
available funds for credit, not later than 12 noon, Boston time, to:
BankBoston
ABA #▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Account of: ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
Private Placement Collection Account
Account Number 541-55417
On Order of: [Name of Issuer and PPN Number]
[Full name, interest rate and maturity date of the Notes or other
obligations]
Notices
Contemporaneous with the above wire transfer, advice setting forth (1) the full
name, interest rate and maturity date of the Notes or other obligations; (2)
allocation of payment between principal and interest and any special payment;
and (3) name and address of Bank (or Trustee) from which wire transfer was
sent, shall be delivered or faxed and mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Variable Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager, Investment Accounting Division, B-3
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
All notices with respect to prepayments, both scheduled and unscheduled,
whether partial or in full, and notice of maturity shall be delivered or faxed
and mailed to:
A-9
51
Healthcare Realty Trust Incorporated Note Purchase Agreement
▇▇▇▇ ▇▇▇▇▇▇▇ Variable Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager, Investment Accounting Division, B-3
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Law Division, T-50
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
All other communications which shall include, but not be limited to, financial
statements and certificates of compliance with financial covenants, shall be
delivered or faxed and mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Bond and Corporate Finance Group, T-57
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
A copy of any notices relating to change in issuer's name, address or principal
place of business or location of collateral and a copy of any legal opinions
shall be delivered or faxed and mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Law Division, T-50
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Name in which Notes are to be issued: ▇▇▇▇ ▇▇▇▇▇▇▇ Variable Life Insurance
Company
Taxpayer I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-10
52
Healthcare Realty Trust Incorporated Note Purchase Agreement
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
INVESTORS PARTNER LIFE INSURANCE COMPANY $1,250,000
▇▇▇▇ ▇▇▇▇▇▇▇ Place
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Payments
All payments on account of the Notes or other obligations in accordance with
the provisions thereof shall be made by bank wire transfer of immediately
available funds for credit, not later than 12 noon, Boston time, to:
BankBoston
ABA #▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Account of: ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
Private Placement Collection Account
Account Number 541-55417
On Order of: [Name of Issuer and PPN Number]
[Full name, interest rate and maturity date of the Notes or other
obligations]
Notices
Contemporaneous with the above wire transfer, advice setting forth (1) the full
name, interest rate and maturity date of the Notes or other obligations; (2)
allocation of payment between principal and interest and any special payment;
and (3) name and address of Bank (or Trustee) from which wire transfer was
sent, shall be delivered or faxed and mailed to:
Investors Partner Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager, Investment Accounting Division, B-3
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
All notices with respect to prepayments, both scheduled and unscheduled,
whether partial or in full, and notice of maturity shall be delivered or faxed
and mailed to:
A-11
53
Healthcare Realty Trust Incorporated Note Purchase Agreement
Investors Partner Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager, Investment Accounting Division, B-3
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Law Division, T-50
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
All other communications which shall include, but not be limited to, financial
statements and certificates of compliance with financial covenants, shall be
delivered or faxed and mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Bond and Corporate Finance Group, T-57
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
A copy of any notices relating to change in issuer's name, address or principal
place of business or location of collateral and a copy of any legal opinions
shall be delivered or faxed and mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Law Division, T-50
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Name in which Notes are to be issued: Investors Partner Life Insurance Company
Taxpayer I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-12
54
Healthcare Realty Trust Incorporated Note Purchase Agreement
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
SIGNATURE 3 LIMITED $3,000,000
c/o ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇▇ ▇▇▇▇▇▇▇ Place
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Payments
All payments on account of the Notes or other obligations in accordance with
the provisions thereof shall be made by bank wire transfer of immediately
available funds for credit, not later than 12 noon, Boston time, to:
Investors Bank & Trust Company
ABA #▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Account Number: 796509107
for further credit to Signature 3 Limited, Account 99292
On Order of: [Name of Issuer and PPN Number]
[Full name, interest rate and maturity date of the Notes or other
obligations]
Notices
Contemporaneous with the above wire transfer, advice setting forth (1) the full
name, interest rate and maturity date of the Notes or other obligations; (2)
allocation of payment between principal and interest and any special payment;
and (3) name and address of Bank (or Trustee) from which wire transfer was
sent, shall be delivered or faxed and mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager, Investment Accounting Division, B-3
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
All notices with respect to prepayments, both scheduled and unscheduled,
whether partial or in full, and notice of maturity shall be delivered or faxed
and mailed to:
A-13
55
Healthcare Realty Trust Incorporated Note Purchase Agreement
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager, Investment Accounting Division, B-3
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Law Division, T-50
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
All other communications which shall include, but not be limited to, financial
statements and certificates of compliance with financial covenants, shall be
delivered or faxed and mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Bond and Corporate Finance Group, T-57
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
A copy of any notices relating to change in issuer's name, address or principal
place of business or location of collateral and a copy of any legal opinions
shall be delivered or faxed and mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Law Division, T-50
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Name in which Notes are to be issued: Hare & Co.
Taxpayer I.D. Number: Not Applicable
A-14
56
Healthcare Realty Trust Incorporated Note Purchase Agreement
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
SIGNATURE 4 LIMITED $3,000,000
c/o ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇▇ ▇▇▇▇▇▇▇ Place
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Payments
All payments on account of the Notes or other obligations in accordance with
the provisions thereof shall be made by bank wire transfer of immediately
available funds for credit, not later than 12 noon, Boston time, to:
Investors Bank & Trust Company
ABA #▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Account Number: 796509107
for further credit to Signature 4 Limited, Account 77570
On Order of: [Name of Issuer and PPN Number]
[Full name, interest rate and maturity date of the Notes or other
obligations]
Notices
Contemporaneous with the above wire transfer, advice setting forth (1) the full
name, interest rate and maturity date of the Notes or other obligations; (2)
allocation of payment between principal and interest and any special payment;
and (3) name and address of Bank (or Trustee) from which wire transfer was
sent, shall be delivered or faxed and mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager, Investment Accounting Division, B-3
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
All notices with respect to prepayments, both scheduled and unscheduled,
whether partial or in full, and notice of maturity shall be delivered or faxed
and mailed to:
A-15
57
Healthcare Realty Trust Incorporated Note Purchase Agreement
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Bond & Corporate Finance, T-57
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Law Division, T-50
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
Investors Bank & Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
All other communications which shall include, but not be limited to, financial
statements and certificates of compliance with financial covenants, shall be
delivered or faxed and mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Bond and Corporate Finance Group, T-57
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
A copy of any notices relating to change in issuer's name, address or principal
place of business or location of collateral and a copy of any legal opinions
shall be delivered or faxed and mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Law Division, T-50
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Name in which Notes are to be issued: Hare & Co.
Taxpayer I.D. Number: Not Applicable
A-16
58
Healthcare Realty Trust Incorporated Note Purchase Agreement
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
MELLON BANK, N.A., AS TRUSTEE FOR $3,000,000
THE ▇▇▇▇ ATLANTIC MASTER TRUST
One Mellon Bank Center
Room 151-1935
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Payments
All payments on account of the Notes or other obligations in accordance with
the provisions thereof shall be made by bank wire transfer of immediately
available funds for credit, not later than 12 noon, Boston time, to:
Federal Reserve Bank of Boston
A/C Boston Safe Deposit and Trust Company
ABA #▇▇▇▇▇▇▇▇▇
DDA: 125261
Reference: ▇▇▇▇ Atlantic Master Trust: NYXF 1783332
[Full name, interest rate and maturity date of the Notes or other
obligations]
Notices
Contemporaneous with the above wire transfer, advice setting forth (1) the full
name, interest rate and maturity date of the Notes or other obligations; (2)
allocation of payment between principal and interest and any special payment;
and (3) name and address of Bank (or Trustee) from which wire transfer was
sent, shall be delivered or faxed and mailed to:
Mellon Bank, N.A.
Three Mellon Bank Center, Room 153-3610
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Principal & Interest Unit
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
All notices with respect to prepayments, both scheduled and unscheduled,
whether partial or in full, and notice of maturity shall be delivered or faxed
and mailed to:
Mellon Bank, N.A.
Three Mellon Bank Center, Room 153-3610
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Principal & Interest Unit
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
A-17
59
Healthcare Realty Trust Incorporated Note Purchase Agreement
with a copy to:
Mellon Bank, N.A.
One Mellon Bank Center, Room 3346
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
All other communications shall be delivered or faxed and mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Bond and Corporate Finance Group, T-57
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Mellon Bank, N.A.
One Mellon Bank Center, Room 151-1935
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
A copy of any notices relating to change in issuer's name, address or principal
place of business or location of collateral and a copy of any legal opinions
shall be delivered or faxed and mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Law Division, T-50
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Name in which Notes are to be issued: MELLON BANK, N.A., TRUSTEE FOR THE ▇▇▇▇
ATLANTIC MASTER TRUST
Taxpayer I.D. Number: ▇▇-▇▇▇▇▇▇▇
A-18
60
Healthcare Realty Trust Incorporated Note Purchase Agreement
PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER NOTES TO BE PURCHASED
AID ASSOCIATION FOR LUTHERANS $20,000,000
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Department
Payments
All payments of principal, interest and premium on the account of the Notes
shall be made by bank wire transfer (in immediately available funds) to:
Citibank, N.A.
ABA #▇▇▇-▇▇▇-▇▇▇
DDA #36126473
Attn: ▇▇▇▇ Rock
Ref Account #846647
Aid Association for Lutherans Custody Account
security description
CUSIP (if available)
maturity date
payable date
principal and interest breakdown
interest rate if variable rate
Notices
All notices on or in respect to the Notes and written confirmation of each such
payment to be addressed as first provided above and to:
Income Collection and Disbursement
Ref Account #846647
Aid Association for Lutherans
Custody Account
3800 Citicorp Center ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇ 7
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Income Collection/▇▇▇▇▇▇ ▇▇▇▇
All other notices and communications to be addressed as first provided above.
Name of Nominee in which Notes are to be issued: ▇▇▇▇▇ & Co.
A-19
61
Healthcare Realty Trust Incorporated Note Purchase Agreement
Taxpayer I.D. Number for ▇▇▇▇▇ & Co.: ▇▇-▇▇▇▇▇▇▇
Taxpayer I.D. Number for Aid Association for Lutherans: ▇▇-▇▇▇▇▇▇▇
A-20
62
DEFINITIONS
GENERAL PROVISIONS
Where the character or amount of any asset or liability or item of
income or expense is required to be determined or any consolidation or other
accounting computation is required to be made for the purposes of this
Agreement, the same shall be done in accordance with GAAP, to the extent
applicable, except where such principles are inconsistent with the express
requirements of this Agreement.
Where any provision in this Agreement refers to action to be taken by
any Person, or which such Person is prohibited from taking, such provision
shall be applicable whether the action in question is taken directly or
indirectly by such Person.
DEFINED TERMS
As used herein, the following terms have the respective meanings set
forth below or set forth in the Section hereof following such term:
"Affiliate" means, at any time, and with respect to any Person, (a)
any other Person that at such time directly or indirectly through one or more
intermediaries Controls, or is Controlled by, or is under common Control with,
such first Person, (b) any Person beneficially owning or holding, directly or
indirectly, 10% or more of any class of voting or equity interests of the
Company or any Subsidiary or any corporation of which the Company and its
Subsidiaries beneficially own or hold, in the aggregate, directly or
indirectly, 10% or more of any class of voting or equity interests, and (c) any
officer or director of the Company or any Subsidiary. As used in this
definition, "Control" means 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 securities, by contract or
otherwise. Unless the context otherwise clearly requires, any reference to an
"Affiliate" is a reference to an Affiliate of the Company.
"Asset Disposition" means and includes (i) a sale, lease or other
disposition of assets (other than in the ordinary course of business) by the
Company or any Subsidiary (except by the Company to a Wholly-Owned Subsidiary
or to a Specified Affiliate, and except by a Subsidiary to the Company, to a
Wholly-Owned Subsidiary, or to a Specified Affiliate), (ii) the issuance or
sale by any Subsidiary or Specified Affiliate of any shares of stock of such
Subsidiary or such Specified Affiliate, as the case may be, of any class
(including as "stock" for the purpose of this definition, any warrants, rights
or options to purchase or otherwise acquire stock or other Securities
exchangeable for or convertible into stock) of such Subsidiary to any Person
other than the Company, a Wholly-Owned Subsidiary or a Specified Affiliate
(except for the purpose of qualifying directors, or except in satisfaction of
the validly pre-existing preemptive rights of minority shareholders in
connection with the simultaneous issuance of stock to the Company and its
Subsidiaries whereby the Company and its Subsidiaries maintain their same
proportionate interest in such Subsidiary and except, in the case of an
issuance or sale by a Specified Affiliate, for an issuance or sale to an
officer of the Company subject to an arrangement assuring the
SCHEDULE B
(to Note Purchase Agreement)
63
continuous ownership of such stock by an officer, director or employee of the
Company and assuring to the Company substantially all of the economic interest
in, such Specified Affiliate), and (iii) the sale, transfer or other
disposition by the Company of any shares of stock of any Subsidiary or
Specified Affiliate (except to qualify directors and except, in the case of a
sale, transfer or disposition of any shares of stock of a Specified Affiliate,
for the sale, transfer or disposition to an officer of the Company subject to
an arrangement assuring the continuous ownership of such stock by an officer,
director or employee of the Company and assuring to the Company substantially
all of the economic interest in, such Specified Affiliate) and the sale,
transfer or other disposition (except to the Company, a Wholly-Owned Subsidiary
or a Specified Affiliate and except, in the case of a sale, transfer or
disposition by a Specified Affiliate, for the sale, transfer or disposition to
an officer of the Company subject to an arrangement assuring the continuous
ownership of such stock by an officer, director or employee of the Company and
assuring to the Company substantially all of the economic interest in, such
Specified Affiliate) by any Subsidiary or by any Specified Affiliate of any
shares of stock of any other Subsidiary or other Specified Affiliate.
"Business Day" means (a) for the purposes of Section 8.6 only, any day
other than a Saturday, a Sunday or a day on which commercial banks in New York
City are required or authorized to be closed, and (b) for the purposes of any
other provision of this Agreement, any day other than a Saturday, a Sunday or a
day on which commercial banks in Nashville, Tennessee or New York City are
required or authorized to be closed.
"Capital Lease" means, at any time, a lease with respect to which the
lessee is required concurrently to recognize the acquisition of an asset and
the incurrence of a liability in accordance with GAAP.
"Capital Lease Obligation" means, with respect to any Person and a
Capital Lease, the amount of the obligation of such Person as the lessee under
such Capital Lease which would, in accordance with GAAP, appear as a liability
on a balance sheet of such Person.
"Closing" is defined in Section 3.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, and the rules and regulations promulgated thereunder from time to
time.
"Company" means Healthcare Realty Trust Incorporated, a Maryland
corporation.
"Confidential Information" is defined in Section 20.
"Consolidated Adjusted Capitalization" as of any date means the sum of
Consolidated Adjusted Net Worth and Consolidated Debt as of such date.
"Consolidated Adjusted Net Worth" means, at any time,
B-2
64
(a) the sum of (i) the par value (or value stated on the
books of the corporation) of the capital stock (but excluding treasury
stock, capital stock subscribed and unissued and mandatorily
redeemable Preferred Stock) of the Company and its Subsidiaries at
such time plus (ii) the amount of the paid-in capital and retained
earnings of the Company and its Subsidiaries at such time, in each
case as such amounts would be shown on a consolidated balance sheet of
the Company and its Subsidiaries as of such time prepared in
accordance with GAAP, minus
(b) to the extent included in clause (a), all amounts
properly attributable to minority interests, if any, in the stock and
surplus of Subsidiaries, minus
(c) the net book value of all assets, after deducting
any reserves applicable thereto, which would be treated as intangible
under GAAP, including, without limitation, good will, trademarks,
trade names, service marks, brand names, copyrights, patents and
unamortized debt discount and expense, organizational expenses and the
excess of the equity in any Subsidiary over the cost of the investment
in such Subsidiary, plus
(d) accumulated depreciation on real estate properties
as such amount would be shown on a consolidated balance sheet of the
Company and its Subsidiaries as of such time prepared in accordance
with GAAP.
"Consolidated Cash Flow Available for Interest Charges" means, in
respect of any period, the sum of (a) Consolidated Net Income for such period,
(b) the amount of all depreciation of real estate owned and amortization
allowances and other non-cash expenses of the Company and its Subsidiaries but
only to the extent deducted in the determination of Consolidated Net Income for
such period, (c) Interest Charges but only to the extent deducted in the
determination of Consolidated Net Income for such period and (d) all provisions
for any Federal, state or other income taxes made by the Company and its
Subsidiaries but only to the extent deducted in the determination of
Consolidated Net Income for such period.
"Consolidated Debt" means, as of any date of determination, the total
of all Debt of the Company and its Subsidiaries outstanding on such date, after
eliminating all offsetting debits and credits between the Company and its
Subsidiaries and all other items required to be eliminated in the course of the
preparation of consolidated financial statements of the Company and its
Subsidiaries in accordance with GAAP.
"Consolidated Mortgage Debt" means, as of any date of determination,
the total of all Mortgage Debt of the Company and its Subsidiaries outstanding
on such date, after eliminating all offsetting debits and credits between the
Company and its Subsidiaries and all other items required to be eliminated in
the course of the preparation of consolidated financial statements of the
Company and its Subsidiaries in accordance with GAAP.
"Consolidated Net Income" means, with reference to any period, the net
income (or loss) of the Company and its Subsidiaries for such period, as
determined in accordance with GAAP, after eliminating all offsetting debits and
credits among the Company and its Subsidiaries, all
B-3
65
earnings or losses attributable to outstanding Minority Interests and
all other items required to be eliminated in the course of the preparation of
consolidated financial statements of the Company and its Subsidiaries in
accordance with GAAP, provided that there shall be excluded:
(a) the income (or loss) of any Person accrued prior to
the date it becomes a Subsidiary or is merged into or consolidated
with the Company or a Subsidiary, and the income (or loss) of any
Person, substantially all of the assets of which have been acquired in
any manner, realized by such other Person prior to the date of
acquisition,
(b) the income (or loss) of any Person (other than a
Subsidiary) in which the Company or any Subsidiary has an ownership
interest, except to the extent that any such income has been actually
received by the Company or such Subsidiary in the form of cash
dividends or similar cash distributions,
(c) the undistributed earnings of any Subsidiary to the
extent that the declaration or payment of dividends or similar
distributions by such Subsidiary is not at the time permitted by the
terms of its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to such
Subsidiary,
(d) any restoration to income of any contingency
reserve, except to the extent that provision for such reserve was made
out of income accrued during such period,
(e) any aggregate net gain (but not any aggregate net
loss) during such period arising from the sale, conversion, exchange
or other disposition of capital assets (such term to include, without
limitation, (i) all non-current assets and, without duplication, (ii)
the following, whether or not current: all fixed assets, whether
tangible or intangible, all inventory sold in conjunction with the
disposition of fixed assets, and all Securities),
(f) any gains resulting from any write-up of any assets
(but not any loss resulting from any write-down of any assets),
(g) any net gain from the collection of the proceeds of
life insurance policies,
(h) any gain arising from the acquisition of any
Security, or the extinguishment, under GAAP, of any Debt, of the
Company or any Subsidiary,
(i) any net income or gain (but not any net loss) during
such period from (i) any change in accounting principles in accordance
with GAAP, (ii) any prior period adjustments resulting from any change
in accounting principles in accordance with GAAP, (iii) any
extraordinary items, or (iv) any discontinued operations or the
disposition thereof,
(j) any deferred credit representing the excess of
equity in any Subsidiary at the date of acquisition over the cost of
the investment in such Subsidiary,
B-4
66
(k) in the case of a successor to the Company by
consolidation or merger or as a transferee of its assets, any earnings
of the successor corporation prior to such consolidation, merger or
transfer of assets, and
(l) any portion of such net income that cannot be
freely converted into United States Dollars.
"Consolidated Total Assets" means as of any date of determination,
consolidated total assets of the Company and its Subsidiaries, after
eliminating all offsetting debits and credits between the Company and its
Subsidiaries and all other items required to be eliminated in the course of the
preparation of consolidated financial statements of the Company and its
Subsidiaries in accordance with GAAP.
"Debt" with respect to any Person means, at any time, without
duplication,
(a) its liabilities for borrowed money and its
redemption obligations in respect of mandatorily redeemable Preferred
Stock;
(b) its liabilities for the deferred purchase price of
property acquired by such Person (excluding accounts payable arising
in the ordinary course of business but including all liabilities
created or arising under any conditional sale or other title retention
agreement with respect to any such property);
(c) all liabilities appearing on its balance sheet in
accordance with GAAP in respect of Capital Leases;
(d) all liabilities for borrowed money secured by any
Lien with respect to any property owned by such Person (whether or not
it has assumed or otherwise become liable for such liabilities);
(e) all its liabilities in respect of letters of credit
or instruments serving a similar function issued or accepted for its
account by banks and other financial institutions (whether or not
representing obligations for borrowed money);
(f) Swaps of such Person; and
(g) any Guaranty of such Person with respect to
liabilities of a type described in any of clauses (a) through (f)
hereof.
Debt of any Person shall include all obligations of such Person of the
character described in clauses (a) through (g) to the extent such Person
remains legally liable in respect thereof notwithstanding that any such
obligation is deemed to be extinguished under GAAP.
"Default" means an event or condition the occurrence or existence of
which would, with the lapse of time or the giving of notice or both, become an
Event of Default.
B-5
67
"Default Rate" means that rate of interest that is the greater of (i)
11.49% per annum or (ii) 1.0% over the rate of interest publicly announced by
Bank of America in Charlotte, North Carolina as its "base" or "prime" rate.
"Disclosure Document" is defined in Section 5.3.
"Environmental Laws" means any and all Federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including but
not limited to those related to hazardous substances or wastes, air emissions
and discharges to waste or public systems.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations promulgated thereunder
from time to time in effect.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that is treated as a single employer together with the Company
under section 414 of the Code.
"Event of Default" is defined in Section 11.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" means, at any time and with respect to any
property, the sale value of such property that would be realized in an
arm's-length sale at such time between an informed and willing buyer and an
informed and willing seller (neither being under a compulsion to buy or sell).
"GAAP" means generally accepted accounting principles as in effect
from time to time in the United States of America.
"Governmental Authority" means
(a) the government of
(i) the United States of America or any State
or other political subdivision thereof, or
(ii) any jurisdiction in which the Company or
any Subsidiary conducts all or any part of its business, or
which asserts jurisdiction over any properties of the Company
or any Subsidiary, or
(b) any entity exercising executive, legislative,
judicial, regulatory or administrative functions of, or pertaining to,
any such government.
B-6
68
"Guaranty" means, with respect to any Person, any obligation (except
the endorsement in the ordinary course of business of negotiable instruments
for deposit or collection) of such Person guaranteeing or in effect
guaranteeing any Debt, dividend or other obligation of any other Person in any
manner, whether directly or indirectly, including (without limitation)
obligations incurred through an agreement, contingent or otherwise, by such
Person:
(a) to purchase such Debt or obligation or any property
constituting security therefor;
(b) to advance or supply funds (i) for the purchase or
payment of such Debt or obligation, or (ii) to maintain any working
capital or other balance sheet condition or any income statement
condition of any other Person or otherwise to advance or make
available funds for the purchase or payment of such Debt or
obligation;
(c) to lease properties or to purchase properties or
services primarily for the purpose of assuring the owner of such Debt
or obligation of the ability of any other Person to make payment of
the Debt or obligation; or
(d) otherwise to assure the owner of such Debt or
obligation against loss in respect thereof.
In any computation of the Debt or other liabilities of the obligor under any
Guaranty, the Debt or other obligations that are the subject of such Guaranty
shall be assumed to be direct obligations of such obligor.
"Hazardous Material" means any and all pollutants, toxic or hazardous
wastes or any other substances that might pose a hazard to health or safety,
the removal of which may be required or the generation, manufacture, refining,
production, processing, treatment, storage, handling, transportation, transfer,
use, disposal, release, discharge, spillage, seepage, or filtration of which is
or shall be restricted, prohibited or penalized by any applicable law
(including, without limitation, asbestos, urea formaldehyde foam insulation and
polychlorinated biphenyls).
"holder" means, with respect to any Note, the Person in whose name
such Note is registered in the register maintained by the Company pursuant to
Section 13.1.
"Institutional Investor" means (a) any original purchaser of a Note,
(b) any holder of a Note holding more than 5% of the aggregate principal amount
of the Notes then outstanding, and (c) any bank, trust company, savings and
loan association or other financial institution, any pension plan, any
investment company, any insurance company, any broker or dealer, or any other
similar financial institution or entity, regardless of legal form.
"Interest Charges" means, with respect to any period, the sum (without
duplication) of the following (in each case, eliminating all offsetting debits
and credits between the Company and its Subsidiaries and all other items
required to be eliminated in the course of the preparation
B-7
69
of consolidated financial statements of the Company and its Subsidiaries in
accordance with GAAP): (a) all interest in respect of Debt of the Company and
its Subsidiaries (including imputed interest on Capital Lease Obligations)
deducted in determining Consolidated Net Income for such period, and (b) all
debt discount and expense amortized or required to be amortized in the
determination of Consolidated Net Income for such period.
"Interest Charges Coverage Ratio" means, at any time, the ratio of (a)
Consolidated Cash Flow Available for Interest Charges for the period of four
consecutive fiscal quarters ending on, or most recently ended prior to, such
time to (b) Interest Charges for such period.
"Investment" means any investment, made in cash or by delivery of
property, by the Company or any of its Subsidiaries (i) in any Person, whether
by acquisition of stock, Debt or other obligation or Security, or by loan,
guaranty, advance, capital contribution or otherwise, or (ii) in any property.
"Lien" means, with respect to any Person, any mortgage, lien, pledge,
charge, security interest or other encumbrance, or any interest or title of any
vendor, lessor, lender or other secured party to or of such Person under any
conditional sale or other title retention agreement or Capital Lease, upon or
with respect to any property or asset of such Person (including in the case of
stock, stockholder agreements, voting trust agreements and all similar
arrangements).
"Make-Whole Amount" is defined in Section 8.6.
"Material" means material in relation to the business, operations,
affairs, financial condition, assets, properties, or prospects of the Company
and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, affairs, financial condition, assets or properties of the
Company and its Subsidiaries taken as a whole, or (b) the ability of the
Company to perform its obligations under this Agreement and the Notes, or (c)
the ability of any Material Subsidiary to perform its obligations under any
Guaranty Agreement, or (d) the validity or enforceability of this Agreement,
the Notes, any Guaranty Agreement or the Intercreditor Agreement.
"Material Subsidiary" shall mean (i) the Subsidiaries listed on
Schedule 5.4 of this Agreement and designated as Material Subsidiaries, (ii)
each other Subsidiary now existing which subsequent to the date of Closing owns
assets (including stock) having an aggregate market value in excess of
$5,000,000 and (iii) each other Subsidiary hereafter created or acquired which
owns assets (including stock) having an aggregate market value in excess of
$5,000,000.
"Minority Interest" shall mean any shares of stock of any class of a
Subsidiary (other than directors qualifying shares as required by law) that are
not owned by the Company and/or one or more of its Subsidiaries.
"Mortgage Debt" means Debt of the Company or any Subsidiary secured by
a Lien on one or more parcels of their real property.
B-8
70
"Multiemployer Plan" means any Plan that is a "multiemployer plan" (as
such term is defined in section 4001(a)(3) of ERISA).
"Notes" is defined in Section 1.
"Officer's Certificate" means a certificate of a Senior Financial
Officer or of any other officer of the Company or a Material Subsidiary, as the
case may be, whose responsibilities extend to the subject matter of such
certificate.
"Other Agreements" is defined in Section 2.
"Other Purchasers" is defined in Section 2.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA or any successor thereto.
"Permitted Subsidiaries Guarantees" shall mean collectively, Guaranty
Agreements executed and delivered by Subsidiaries of the Company in connection
with this Agreement and the other institutional indebtedness of the Company,
provided that (i) each such Subsidiary that has guaranteed such other
institutional indebtedness of the Company shall also have entered into the
Guaranty Agreement with respect to the Notes, and (ii) the holders of such
institutional indebtedness shall be a party (either directly or through an
authorized agent) to the Intercreditor Agreement with respect to such
indebtedness.
"Person" means an individual, partnership, corporation, limited
liability company, association, trust, unincorporated organization, or a
government or agency or political subdivision thereof.
"Plan" means an "employee benefit plan" (as defined in section 3(3) of
ERISA) that is or, within the preceding five years, has been established or
maintained, or to which contributions are or, within the preceding five years,
have been made or required to be made, by the Company or any ERISA Affiliate or
with respect to which the Company or any ERISA Affiliate may have any
liability.
"Preferred Stock" means any class of capital stock of a corporation
that is preferred over any other class of capital stock of such corporation as
to the payment of dividends or the payment of any amount upon liquidation or
dissolution of such corporation.
"property" or "properties" means, unless otherwise specifically
limited, real or personal property of any kind, tangible or intangible, ▇▇▇▇▇▇
or inchoate.
"Public Notes" means the Senior Notes due 2003 issued or expected to
be issued pursuant to the Indenture and related Supplemental Indenture between
the Company and First Union National Bank, as described in the Prospectus
Supplement filed with the Securities and
B-9
71
Exchange Commission substantially concurrently with the issuance and
sale of the Notes, supplementing the Prospectus dated November 2, 1995.
"QPAM Exemption" means Prohibited Transaction Class Exemption 84-14
issued by the United States Department of Labor.
"Required Holders" means, at any time, the holders of at least 66-2/3%
in principal amount of the Notes at the time outstanding (exclusive of Notes
then owned by the Company or any of its Affiliates).
"Responsible Officer" means any Senior Financial Officer and any other
officer of the Company with responsibility for the administration of the
relevant portion of this Agreement.
"Restricted Investments" means all Investments except the following:
(a) Investments in property to be used in the ordinary
course of business of the Company, its Subsidiaries and Specified
Affiliates;
(b) Investments in current assets arising in the
ordinary course of business of the Company, its Subsidiaries and
Specified Affiliates;
(c) Investments directly in real property in the ordinary
course of business of the Company, its Subsidiaries and Specified
Affiliates;
(d) Investments in entities owning real properties
provided that income from such Investments shall be either (i)
qualified dividends under the "75% gross income test" under Section
856(c)(3) of the Code or (ii) "rents from real property" under
applicable provisions of the Code;
(e) Investments in (i) one or more Specified Affiliates
or any Person that concurrently with such Investment becomes a
Specified Affiliate or (ii) one or more Subsidiaries or any Person
that concurrently with such Investment becomes a Subsidiary, provided
that each such Subsidiary is a "qualified REIT subsidiary" within the
meaning of section 856(i) of the Code or any successor provision;
(f) Investments in United States Governmental
Securities, provided that such obligations mature within 365 days from
the date of acquisition thereof;
(g) Investments in certificates of deposit or banker's
acceptances issued by an Acceptable Bank, provided that such
obligations mature within 365 days from the date of acquisition
thereof;
(h) Investments in commercial paper in each case rated
"A-1" or better by S&P or "P-1" or better by Moody's or an equivalent
rating by any other credit rating
B-10
72
agency of recognized national standing, and maturing not more than 270
days from the date of creation thereof;
(i) Investments in Repurchase Agreements;
(j) Investments in tax-exempt obligations of any state
of the United States of America, or any municipality of any such state
with short term ratings in each case of at least "A-1" or better by
S&P or "P-1" or better by Moody's or an equivalent rating by any other
credit rating agency of recognized national standing, provided that
such obligations mature within 365 days from the date of acquisition
thereof; and
(k) Unimproved Real Estate Investments.
For purposes of this Agreement an Investment shall be valued at the greater of
(i) cost and (ii) the value at which such Investment is to be shown on the
books of the Company and its Subsidiaries in accordance with GAAP.
As used in this definition of "Restricted Investments"
"Acceptable Bank" means any bank or trust company (i) which
is organized under the laws of the United States of America or any
State thereof, (ii) which has capital, surplus and undivided profits
aggregating at least $500,000,000, and (iii) whose short-term
unsecured debt obligations (or the short-term unsecured debt
obligations of the bank holding company owning all of the capital
stock of such bank or trust company) shall have been given a rating of
"A-1" or better by S&P or "P-1" or better by Moody's.
"Acceptable Broker-Dealer" means any Person other than a
natural person (i) which is registered as a broker or dealer pursuant
to the Exchange Act and (ii) whose short-term unsecured debt
obligations shall have been given a rating of "A-1" or better by S&P
or "P-1" or better by Moody's.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Repurchase Agreement" means any written agreement
(a) that provides for (i) the transfer of one
or more United States Governmental Securities in an aggregate
principal amount at least equal to the amount of the Transfer
Price (defined below) to the Company or any of its
Subsidiaries from an Acceptable Bank or an Acceptable
Broker-Dealer against a transfer of funds (the "Transfer
Price") by the Company or such Subsidiary to such Acceptable
Bank or Acceptable Broker-Dealer, and (ii) a simultaneous
agreement by the Company or such Subsidiary, in connection
with such transfer of funds, to transfer to such Acceptable
Bank or Acceptable Broker-Dealer the same or substantially
similar United States Governmental Securities for a price not
less
B-11
73
than the Transfer Price plus a reasonable return thereon at a
date certain not later than 365 days after such transfer of
funds,
(b) in respect of which the Company or such
Subsidiary shall have the right, whether by contract or
pursuant to applicable law, to liquidate such agreement upon
the occurrence of any default thereunder, and
(c) in connection with which the Company or
such Subsidiary, or an agent thereof, shall have taken all
action required by applicable law or regulations to perfect a
Lien in such United States Governmental Securities.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw Hill, Inc.
"United States Governmental Security" means any direct
obligation of, or obligation guaranteed by, the United States of
America, or any agency controlled or supervised by or acting as an
instrumentality of the United States of America pursuant to authority
granted by the Congress of the United States of America, so long as
such obligation or guarantee shall have the benefit of the full faith
and credit of the United States of America which shall have been
pledged pursuant to authority granted by the Congress of the United
States of America.
"Security" has the meaning set forth in Section 2(l)(a) of the
Securities Act.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Senior Financial Officer" means the chief financial officer or chief
accounting officer of the Company or a Material Subsidiary, as the case may be.
"Specified Affiliate" means any corporation, association or other
business entity formed for the purpose of earning income not qualified as
"rents from real property" under applicable provisions of the Code, in which
the Company owns substantially all of the economic interest but less than 10%
of the voting interests, and the remaining economic and voting interests are
subject to restrictions requiring that ownership of such interests be held by
officers, directors or employees of the Company.
"Subsidiary" means, as to any Person, any corporation, association or
other business entity in which such Person or one or more of its Subsidiaries
or such Person and one or more of its Subsidiaries owns sufficient equity or
voting interests to enable it or them (as a group) ordinarily, in the absence
of contingencies, to elect a majority of the directors (or Persons performing
similar functions) of such entity, and any partnership or joint venture if more
than a 50% interest in the profits or capital thereof is owned by such Person
or one or more of its Subsidiaries or such Person and one or more of its
Subsidiaries (unless such partnership can and does ordinarily take major
business actions without the prior approval of such Person or one or more of
its Subsidiaries). In the case of the Company, each Specified Affiliate shall
be deemed to be a Subsidiary of the Company for all purposes of this Agreement
except as otherwise
B-12
74
provided in Section 7.1(g). Unless the context otherwise clearly
requires, any reference to a "Subsidiary" is a reference to a Subsidiary of the
Company. In the event that any change in GAAP or related auditing standards
requires that a Specified Affiliate of the Company be accounted for as a
Subsidiary for purposes of the consolidated financial statements of the Company
and its Subsidiaries, such Specified Affiliate shall be deemed to be a
Subsidiary for purposes of this Agreement.
"Swaps" means, with respect to any Person, payment obligations with
respect to interest rate swaps, currency swaps and similar obligations
obligating such Person to make payments, whether periodically or upon the
happening of a contingency. For the purposes of this Agreement, the amount of
the obligation under any Swap shall be the amount determined in respect thereof
as of the end of the then most recently ended fiscal quarter of such Person,
based on the assumption that such Swap had terminated at the end of such fiscal
quarter, and in making such determination, if any agreement relating to such
Swap provides for the netting of amounts payable by and to such Person
thereunder or if any such agreement provides for the simultaneous payment of
amounts by and to such Person, then in each such case, the amount of such
obligation shall be the net amount so determined.
"Unencumbered Assets" means at any time the book value of all real
estate properties of the Company and its Subsidiaries, prior to the deduction
of accumulated depreciation thereon, which are free of all Liens other than
Liens permitted by paragraphs (a), (b), (c), (d), (e), (f) or (h) of Section
10.6.
"Unimproved Real Estate Investments" means Investments in unimproved
real property and mortgages on unimproved real property.
"Unsecured Debt" means at any time the aggregate unpaid principal
amount of all Debt of the Company and its Subsidiaries other than (i) Debt of a
Subsidiary owing to the Company or to a Wholly-Owned Subsidiary and (ii)
Mortgage Debt.
"Wholly-Owned Subsidiary" means, at any time, any Subsidiary one
hundred percent (100%) of all of the equity interests (except directors'
qualifying shares) and voting interests and all Debt of which are owned by any
one or more of the Company and the Company's other Wholly-Owned Subsidiaries at
such time.
B-13
75
SUBSIDIARIES OF THE COMPANY AND
OWNERSHIP OF SUBSIDIARY STOCK
I. Set forth below is a complete and accurate list of all of the
Subsidiaries and Affiliates of Healthcare Realty Trust Incorporated, a Maryland
Corporation (the "Company"), showing as to each such Subsidiary or Affiliate
the jurisdiction of its organization, and the number of shares of each class of
capital stock or other equity interests outstanding and the percentage of the
outstanding shares of each such class owned (directly or indirectly) by the
Company or any other Subsidiary or Affiliate of the Company. Those with an
asterisk (*) are Material Subsidiaries.
HEALTHCARE REALTY TRUST INCORPORATED
---------------------------------------------------------------------------------------------
ENTITY INCORPORATED QUALIFIED
---------------------------------------------------------------------------------------------
Durham Medical Office Building, Inc.* Texas
100 shares of Common Stock, $.01 par
value (1% owned by Company), and
4,300,000 shares of Non-Voting
Preferred Stock, $1.00 par value (100%
owned by Company) (Affiliate)
---------------------------------------------------------------------------------------------
Healthcare Realty Services Alabama Arizona
Incorporated* - 1,000 shares of California
Common Stock, $.01 par value, 100% Florida
owned by Company Georgia
Kansas
Kentucky
Missouri
Nevada
New Mexico
North Carolina
Oklahoma
Pennsylvania
Tennessee
Texas
Virginia
Wyoming
---------------------------------------------------------------------------------------------
HR Acquisition I Corporation* Maryland Alabama
(formerly known as Capstone Capital Arizona
Corporation), 100% owned by Arkansas
Company California
Connecticut
Florida
=============================================================================================
SCHEDULE 5.4
(to Note Purchase Agreement)
76
HEALTHCARE REALTY TRUST INCORPORATED
---------------------------------------------------------------------------------------------
ENTITY INCORPORATED QUALIFIED
---------------------------------------------------------------------------------------------
Georgia
Hawaii
Iowa
Idaho
Illinois
Louisiana
Massachusetts
Michigan
Missouri
Mississippi
North Carolina
New Jersey
New Mexico
Nevada
HR Acquisition I Corporation Ohio
(continued) Oklahoma
South Carolina
Tennessee
Texas
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Wyoming
---------------------------------------------------------------------------------------------
HR Assets, Inc. - 0 shares issued and
outstanding, Dormant (Affiliate)
---------------------------------------------------------------------------------------------
HR Capital, Inc. - 0 shares issued and Texas
outstanding, Dormant (Affiliate)
---------------------------------------------------------------------------------------------
HR Funding, Inc. - 0 shares issued and Texas
outstanding, Dormant (Affiliate)
---------------------------------------------------------------------------------------------
HR Interests, Inc.* - 1,000 shares of Texas
Common Stock, Texas $.01 par value, 100%
owned by Company
---------------------------------------------------------------------------------------------
HR of Texas, Inc.* - 100,000 shares of Maryland Texas
Common Stock, $.01 par value, 100%
owned by Company
---------------------------------------------------------------------------------------------
HRT of Alabama, Inc.* - 100,000 shares Alabama
of Common Stock, $.01 par value,
100% owned by Company
=============================================================================================
5.4-2
77
HEALTHCARE REALTY TRUST INCORPORATED
---------------------------------------------------------------------------------------------
ENTITY INCORPORATED QUALIFIED
---------------------------------------------------------------------------------------------
HRT of Delaware, Inc.* - 100 shares of Delaware
Common Stock, $.01 par value, 100%
owned by Company
---------------------------------------------------------------------------------------------
HRT of Florida, Inc.* - 1,000 shares of Florida
Common Stock, $.01 par value, 100%
owned by Company
---------------------------------------------------------------------------------------------
HRT of Roanoke, Inc.*- 1,000 shares of Virginia
Common Stock, $1.00 par value, 100%
owned by Company
---------------------------------------------------------------------------------------------
HRT of Tennessee, Inc.* - 1,000 shares Tennessee
of Common Stock, $.01 par value,
100% owned by Company
---------------------------------------------------------------------------------------------
HRT of Virginia, Inc. * - 10,000 shares Virginia
of Common Stock, $.01 par value,
100% owned by Company
---------------------------------------------------------------------------------------------
Pennsylvania HRT, Inc. *- 0 shares Pennsylvania
issued and outstanding, 100% owned
by Company
---------------------------------------------------------------------------------------------
HR of San Antonio, Inc. - 1,000 shares Texas
of Common Stock, $1.00 par value,
100% owned by Durham Medical
Office Building, Inc.
---------------------------------------------------------------------------------------------
Property Technology Services, Inc. - Tennessee
1,000 shares of Common Stock, $.01
par value, 100% owned by Company
---------------------------------------------------------------------------------------------
Pasadena Medical Plaza SSJ, Ltd.*, Florida
51% interest owned by the Company
---------------------------------------------------------------------------------------------
San Antonio SSP, Ltd., 25.3% interest Texas
owned by HR Texas of San Antonio, Inc.
=============================================================================================
SUBSIDIARIES OF HR ACQUISITION I CORPORATION
Set forth below is a complete and accurate list of all of the
Subsidiaries of the HR Acquisition I Corporation, a Maryland corporation ("HR
Acquisition"), which is listed above as a subsidiary of the Company, showing as
to each such Subsidiary the jurisdiction of its
5.4-3
78
organization, and the number of shares of each class of capital stock or other
equity interests outstanding and the percentage of the outstanding shares of
each such class owned (directly or indirectly) by HR Acquisition or any other
Subsidiary of HR Acquisition.
Each subsidiary (other than the limited partnerships) has 1,000 shares
of common stock issued and outstanding.
HR ACQUISITION I CORPORATION
---------------------------------------------------------------------------------------------
ENTITY INCORPORATED QUALIFIED
---------------------------------------------------------------------------------------------
Capstone Capital of Alabama, Inc.* Alabama
(100% interest owned by HR
Acquisition)
---------------------------------------------------------------------------------------------
Capstone Capital of Baytown, Inc.* Alabama Texas
(100% interest owned by HR
Acquisition)
---------------------------------------------------------------------------------------------
Capstone Capital of ▇▇▇▇▇▇ Bay, Inc.* Alabama Florida
(100% interest owned by HR
Acquisition)
---------------------------------------------------------------------------------------------
Capstone Capital of California, Inc.* Alabama California
(100% interest owned by HR
Acquisition)
---------------------------------------------------------------------------------------------
Capstone Capital of Cape Coral, Inc.* Alabama Florida
(100% interest owned by HR
Acquisition)
---------------------------------------------------------------------------------------------
Capstone Capital of Kentucky, Inc.* Alabama
(100% interest owned by HR
Acquisition)
---------------------------------------------------------------------------------------------
Capstone Capital of Las Vegas, Inc.* Alabama Texas
(100% interest owned by HR Nevada
Acquisition)
---------------------------------------------------------------------------------------------
Capstone Capital of Los Angeles, Alabama California
Inc.* (100% interest owned by HR
Acquisition)
---------------------------------------------------------------------------------------------
Capstone Capital of Massachusetts, Alabama Massachusetts
Inc.* (100% interest owned by HR
Acquisition)
---------------------------------------------------------------------------------------------
Capstone Capital of Pennsylvania, Pennsylvania
Inc.* (100% interest owned by HR
Acquisition)
---------------------------------------------------------------------------------------------
Capstone Capital of Port Orange, Inc. Alabama Florida
(100% interest owned by HR
Acquisition)
---------------------------------------------------------------------------------------------
5.4-4
79
HR ACQUISITION I CORPORATION
---------------------------------------------------------------------------------------------
ENTITY INCORPORATED QUALIFIED
---------------------------------------------------------------------------------------------
Capstone Capital of Sarasota, Inc.* Alabama Florida
(100% interest owned by HR
Acquisition)
---------------------------------------------------------------------------------------------
Capstone Capital of Texas, Inc.* Alabama Texas
(100% interest owned by HR
Acquisition)
---------------------------------------------------------------------------------------------
Capstone Capital of Virginia, Inc.* Alabama North Carolina
(100% interest owned by HR Virginia
Acquisition)
---------------------------------------------------------------------------------------------
Capstone Capital Properties, Inc.* Alabama
(100% interest owned by HR
Acquisition)
---------------------------------------------------------------------------------------------
Capstone Capital Senior Housing, Alabama
Inc.* (100 % interest owned by HR
Acquisition)
---------------------------------------------------------------------------------------------
Capstone Capital of Ocoee, Inc.* Alabama Florida
(100% interest owned by HR
Acquisition)
---------------------------------------------------------------------------------------------
Capstone of ▇▇▇▇▇▇ Bay, Ltd.* (100% Alabama Florida
interest owned by HR Acquisition)
(Subsidiary)
---------------------------------------------------------------------------------------------
Capstone of Los Angeles, Ltd.* (25% Alabama California
interest owned by HR Acquisition)
(Subsidiary)
---------------------------------------------------------------------------------------------
Capstone of Cape Coral, Ltd.* (100% Alabama Florida
interest owned by HR Acquisition)
(Subsidiary)
---------------------------------------------------------------------------------------------
Capstone of Las Vegas, Ltd.* (100% Alabama Texas
interest owned by HR Acquisition) Nevada
(Subsidiary)
---------------------------------------------------------------------------------------------
Capstone of Port Orange, Ltd. (75% Alabama Florida
interest owned by HR Acquisition)
(Subsidiary)
---------------------------------------------------------------------------------------------
Capstone of Sarasota, Ltd.* (100% Alabama Florida
interest owned by HR Acquisition)
(Subsidiary)
---------------------------------------------------------------------------------------------
Capstone Capital of San Antonio, Alabama Texas
Ltd.* (100% interest owned by HR
Acquisition) (Subsidiary)
---------------------------------------------------------------------------------------------
5.4-5
80
HR ACQUISITION I CORPORATION
---------------------------------------------------------------------------------------------
ENTITY INCORPORATED QUALIFIED
---------------------------------------------------------------------------------------------
Capstone of Virginia Limited Alabama North Carolina
Partnership* (100% interest owned by Virginia
HR Acquisition) (Subsidiary)
---------------------------------------------------------------------------------------------
Capstone of Ocoee, Ltd.* (75% Alabama Florida
interest owned by HR Acquisition)
(Subsidiary)
---------------------------------------------------------------------------------------------
Cap-Bay IV, Ltd.* (75% interest Alabama
owned by HR Acquisition)
(Subsidiary)
---------------------------------------------------------------------------------------------
Cap-Bay V, Ltd.* (75% interest owned Alabama
by HR Acquisition) (Subsidiary)
---------------------------------------------------------------------------------------------
Cap-Bay VII, Ltd.* (70% interest Alabama
owned by HR Acquisition)
(Subsidiary)
---------------------------------------------------------------------------------------------
Cap-Bay VIII, Ltd.* (70% interest Alabama
owned by HR Acquisition)
(Subsidiary)
---------------------------------------------------------------------------------------------
II. Directors and Executive Officers of the Company
Set forth below is a complete and accurate list of all of the Officers
and Directors of the Company.
OFFICERS
▇▇▇▇▇ ▇. ▇▇▇▇▇ President and CEO
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Executive Vice President & CFO
▇▇▇▇▇ ▇. ▇▇▇▇ Executive Vice President & GC
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Senior Vice President, Treasurer & Assistant
Secretary
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Senior Vice President Financial Reporting
▇▇▇▇ ▇. ▇▇▇▇ Secretary
DIRECTORS
▇▇▇▇▇ ▇. ▇▇▇▇▇, Chairman
▇▇▇▇▇ ▇. ▇▇▇▇▇, Ph. ▇.
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, M. D.
▇▇▇▇▇ M ▇▇▇▇▇▇▇, Jr.
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
5.4-6
81
FINANCIAL STATEMENTS
(1) The Company's Annual Report on Form 10-K for the year ended December
31, 1999, which includes audited consolidated balance sheets of the
Company and its Subsidiaries as of December 31 in each of the years
1999 and 1998 and the consolidated statements of income, stockholders'
equity and cash flows for the years then ended;*
(2) The Company's Proxy Statement pertaining to its annual meeting of
shareholders held on May 16, 2000;
(3) The Company's 1999 Annual Report to Shareholders;* and
(4) All press releases and other correspondence with shareholders
generally since January, 1, 2000.**
* Copies of these documents have been delivered to the Purchasers pursuant
to the 1995 Note Purchase Agreement.
** Copies of these documents are on the Company's website.
(▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇)
SCHEDULE 5.5
(to Note Purchase Agreement)
82
CERTAIN LITIGATION
On ▇▇▇▇▇ ▇▇, ▇▇▇▇, ▇▇ Acquisition I Corporation, formerly known as
Capstone Capital Corporation ("HR Acquisition"), a wholly-owned subsidiary of
the Company, filed suit against Medistar Corporation and its affiliate, Medix
Construction Company in United States District Court for the Northern District
of Alabama, Southern Division. HR Acquisition is seeking damages in excess of
two million dollars arising out of the development and construction of four
real estate projects located in different parts of the United States. Medistar
and Medix served as the developer and contractor, respectively, for the
projects. HR Acquisition has asserted claims for damages relating to, among
others, alleged breaches of the development and contracting obligations,
failure to perform in accordance with contract terms and specifications, and
other deficiencies in performance by Medistar and Medix. On June 10, 1999,
Medistar and Medix filed its answer and counterclaim asserting a variety of
alleged legal theories, claims for damages for alleged deficiencies by HR
Acquisition and the Company in the performance of alleged obligations, and for
damage to their business reputation. Attempts at mediation have not resulted in
a settlement of the disputes. The Company's prosecution of its claims and
defense of the counterclaims will be vigorous. While the Company cannot predict
the range of possible loss or outcome, the Company believes that, even though
the asserted cross claims seek substantial monetary damages, the allegations
made by Medistar and Medix are not factually or legally meritorious, are
subject to sustainable defenses and are, to a significant extent, covered by
liability insurance.
SCHEDULE 5.8
(to Note Purchase Agreement)
83
EXISTING DEBT
EXISTING DEBT OF THE COMPANY AND ALL SUBSIDIARIES AS OF APRIL 4, 2000
(1) An aggregate principal amount outstanding of $260,000,000 under a
$265.0 million unsecured credit facility (the "Unsecured Credit
Facility") with ten commercial banks;
(2) An aggregate principal amount outstanding of $112,800,000 under a
$200.0 million term loan (the "Term Loan Facility") with NationsBank,
N. A;
(3) An aggregate principal amount outstanding of $73,836,000 of 6.55%
Convertible Subordinated Debentures;
(4) An aggregate principal amount outstanding of $3,573,000 of 10.50%
Convertible Subordinated Debentures;
(5) An aggregate principal amount outstanding of $59,713,000 of Mortgage
Notes Payable; and
(6) An aggregate principal amount outstanding of $54,000,000 of 7.41%
Senior Notes Payable; and
(7) An aggregate principal amount outstanding of $6,417,000 of a note
payable to a bank.
SCHEDULE 5.15
(to Note Purchase Agreement)
84
[FORM OF NOTE]
HEALTHCARE REALTY TRUST INCORPORATED
9.49% SENIOR NOTE DUE APRIL 1, 2006
No. [_________] [Date]
$[____________] PPN 421946 A@ 3
FOR VALUE RECEIVED, the undersigned, HEALTHCARE REALTY TRUST
INCORPORATED (herein called the "Company"), a corporation organized and
existing under the laws of the State of Maryland, hereby promises to pay to
[________________], or registered assigns, the principal sum of
[________________] DOLLARS on April 1, 2006, with interest (computed on the
basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance
thereof at the rate of 9.49% per annum from the date hereof, payable
semiannually, on the first day of April and October in each year, commencing
with the first such date succeeding the date hereof, until the principal hereof
shall have become due and payable, and (b) to the extent permitted by law on
any overdue payment (including any overdue prepayment) of principal, any
overdue payment of interest and any overdue payment of any Make-Whole Amount
(as defined in the Note Purchase Agreements referred to below), payable
semiannually as aforesaid (or, at the option of the registered holder hereof,
on demand), at a rate per annum from time to time equal to the greater of (i)
11.49% per annum or (ii) 1.0% over the rate of interest publicly announced by
Bank of America from time to time in Charlotte, North Carolina as its "base" or
"prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of Citibank, N.A. in New York, New York or at
such other place as the Company shall have designated by written notice to the
holder of this Note as provided in the Note Purchase Agreements referred to
below.
This Note is one of a series of Senior Notes (herein called the
"Notes") issued pursuant to separate Note Purchase Agreements, dated as of
March 1, 2000 (as from time to time amended, the "Note Purchase Agreements"),
between the Company and the respective Purchasers named therein and is entitled
to the benefits thereof. Each holder of this Note will be deemed, by its
acceptance hereof, (i) to have agreed to the confidentiality provisions set
forth in Section 20 of the Note Purchase Agreements and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreements,
provided that such holder may (in reliance upon information provided by the
Company, which shall not be unreasonably withheld) make a representation to the
effect that the purchase by such holder of any Note will not constitute a
non-exempt prohibited transaction under Section 406(a) of ERISA.
This Note is a registered Note and, as provided in the Note Purchase
Agreements, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
EXHIBIT 1
(to Note Purchase Agreement)
85
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
The Company will make required prepayments of principal on the dates
and in the amounts specified in the Note Purchase Agreements. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreements, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreements,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreements.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of New York
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
HEALTHCARE REALTY TRUST INCORPORATED
By
Name:
Title:
▇-▇-▇
▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ AGREEMENT
EXHIBIT 2(b)
(to Note Purchase Agreement)
87
FORM OF INTERCREDITOR AGREEMENT
EXHIBIT 2(c)
(to Note Purchase Agreement)
88
FORM OF OPINION OF
SPECIAL COUNSEL TO THE COMPANY AND ITS SUBSIDIARIES
The closing opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, special counsel
for the Company and its Subsidiaries, which is called for by Section 4.4(a) of
the Note Purchase Agreements, shall be dated the date of the Closing and
addressed to you, the Other Purchasers and ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, shall be
satisfactory in scope and form to you and the Other Purchasers and shall be to
the effect that:
1. The Company is a corporation, validly existing and
in good standing under the laws of the State of Maryland, has the
corporate power and the corporate authority to execute and perform the
Note Purchase Agreements and to issue the Notes and has the full
corporate power and the corporate authority to conduct the activities
in which it is now engaged and is duly licensed or qualified and is in
good standing as a foreign corporation and is in good standing in each
jurisdiction in which such qualification is required by law, other
than those jurisdictions as to which the failure to be so qualified or
in good standing could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
2. Each Subsidiary is a corporation or other legal
entity, validly existing and in good standing under the laws of its
jurisdiction of organization and is duly licensed or qualified and is
in good standing in each jurisdiction in which such qualification is
required by law, other than those jurisdictions as to which the
failure to be so qualified or in good standing could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
3. The Note Purchase Agreements have been duly
authorized by all necessary corporate action on the part of the
Company, have been duly executed and delivered by the Company and
constitute the legal, valid and binding contracts of the Company
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent conveyance and similar laws affecting
creditors' rights generally, and general principles of equity
(regardless of whether the application of such principles is
considered in a proceeding in equity or at law).
4. The Guaranty Agreement has been duly authorized by
all necessary corporate action on the part of each Material
Subsidiary, has been duly executed and delivered by such Material
Subsidiary and constitutes the legal, valid and binding contract of
such Material Subsidiary, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent conveyance and similar
laws affecting creditors' rights generally, and general principles of
equity (regardless of whether the application of such principles is
considered in a proceeding in equity or at law).
5. The Notes have been duly authorized by all
necessary corporate action on the part of the Company, have been duly
executed and delivered by the Company and constitute the legal, valid
and binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent conveyance
EXHIBIT 4.4(a)
(to Note Purchase Agreement)
89
and similar laws affecting creditors' rights generally, and general
principles of equity (regardless of whether the application of such
principles is considered in a proceeding in equity or at law).
6. No approval, consent or withholding of objection on
the part of, or filing, registration or qualification with, any
governmental body, Federal or state, is necessary in connection with
the execution and delivery of the Note Purchase Agreements, the
Guaranty Agreement or the Notes.
7. The issuance and sale of the Notes and the
execution, delivery and performance by the Company of the Note
Purchase Agreements do not conflict with or result in any breach of
any of the provisions of or constitute a default under or result in
the creation or imposition of any Lien upon any of the property of the
Company pursuant to the provisions of the Articles of Incorporation or
By-laws of the Company or any agreement or other instrument known to
such counsel to which the Company is a party or by which the Company
may be bound.
8. The execution, delivery and performance by each
Material Subsidiary of the Guaranty Agreement does not conflict with
or result in any breach of any of the provisions of or constitute a
default under or result in the creation or imposition of any Lien upon
any of the property of such Material Subsidiary pursuant to the
provisions of the Articles of Incorporation or By-laws of such
Material Subsidiary or any agreement or other instrument known to such
counsel to which such Material Subsidiary is a party or by which such
Material Subsidiary may be bound.
9. The issuance, sale and delivery of the Notes under
the circumstances contemplated by the Note Purchase Agreements do not,
under existing law, require the registration of the Notes under the
Securities Act of 1933, as amended, or the qualification of an
indenture under the Trust Indenture Act of 1939, as amended.
Said opinion shall cover such other matters relating to the sale of
the Notes as you and the Other Purchasers may reasonably request. With respect
to matters of fact on which such opinion is based, such counsel shall be
entitled to rely on appropriate certificates of public officials and officers
of the Company and its Subsidiaries.
90
FORM OF OPINION OF
SPECIAL TAX COUNSEL TO THE COMPANY AND ITS SUBSIDIARIES
The closing opinions of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special tax counsel
for the Company and its Subsidiaries, which is called for by Section 4.4(b) of
the Note Purchase Agreements, shall be dated the date of the Closing and
addressed to you, the Other Purchasers and ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, shall be
satisfactory in scope and form to you and the Other Purchasers and shall be to
the effect that:
1. The Company is constituted in accordance with the
requirements for qualification as a real estate investment trust set
forth in subchapter M of the Code and the regulations thereunder.
2. With respect to the taxable years of the Company
ended December 31, 1993 through December 31, 1999, the Company met the
requirements for qualification and taxation as a real estate
investment trust set forth in subchapter M of the Code.
Said opinion shall cover such other matters relating to the sale of
the Notes as you and the Other Purchasers may reasonably request. With respect
to matters of fact on which such opinion is based, such counsel shall be
entitled to rely on appropriate certificates of public officials and officers
of the Company and its Subsidiaries.
Exhibit 4.4 (b)
(to Note Purchase Agreement)
91
FORM OF OPINION OF SPECIAL COUNSEL
TO THE PURCHASERS
The closing opinion of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, special counsel to you and
the Other Purchasers, called for by Section 4.4(c) of the Note Purchase
Agreements, shall be dated the date of the Closing and addressed to you and the
Other Purchasers, shall be satisfactory in form and substance to you and the
Other Purchasers and shall be to the effect that:
1. The Company is a corporation, validly existing and
in good standing under the laws of the State of Maryland and has the
corporate power and the corporate authority to execute and deliver the
Note Purchase Agreements and to issue the Notes.
2. The Note Purchase Agreements have been duly
authorized by all necessary corporate action on the part of the
Company, have been duly executed and delivered by the Company and
constitute the legal, valid and binding contracts of the Company
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent conveyance and similar laws affecting
creditors' rights generally, and general principles of equity
(regardless of whether the application of such principles is
considered in a proceeding in equity or at law).
3. The Notes have been duly authorized by all necessary
corporate action on the part of the Company, and the Notes being
delivered on the date hereof have been duly executed and delivered by
the Company and constitute the legal, valid and binding obligations of
the Company enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent conveyance and similar laws
affecting creditors' rights generally, and general principles of
equity (regardless of whether the application of such principles is
considered in a proceeding in equity or at law).
4. The issuance, sale and delivery of the Notes under
the circumstances contemplated by the Note Purchase Agreements do not,
under existing law, require the registration of the Notes under the
Securities Act of 1933, as amended, or the qualification of an
indenture under the Trust Indenture Act of 1939, as amended.
The opinion of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ shall also state that the opinions
of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, special counsel for the Company and its
Subsidiaries, ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius, special Maryland counsel for the Company
and its Subsidiaries, Bradley, Arant, Rose & White, special Alabama counsel for
the Company and its Subsidiaries, Hunton & ▇▇▇▇▇▇▇▇, special Virginia counsel
for the Company and its Subsidiaries, and Carlton, Fields, ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., special Florida counsel for the Company and its
Subsidiaries, are satisfactory in scope and form to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ and
that, in their opinion, you and the Other Purchasers are justified in relying
thereon.
In rendering the opinion set forth in paragraph 1 above, ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇ may rely, as to matters referred to in paragraph 1, solely upon an
examination of the Articles of Incorporation certified by, and a certificate of
good standing of the Company from, the Secretary of State of the State of
Maryland, the By-laws of the Company and the General Corporation Law of the
State of
Exhibit 4.4 (c)
(to Note Purchase Agreement)
92
Maryland. The opinion of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ is limited to the laws of the State
of New York, the General Corporation Law of the State of Maryland and the
Federal laws of the United States.
With respect to matters of fact upon which such opinion is based,
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ may rely on appropriate certificates of public officials and
officers of the Company and upon representations of the Company and you and the
Other Purchasers delivered in connection with the issuance and sale of the
Notes.
Exhibit 4.4 (c)