<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): October 17, 1995
AMERICAN HEALTH PROPERTIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 1-9381 95-4084878
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
6400 SOUTH FIDDLER'S GREEN CIRCLE, SUITE 1800
ENGLEWOOD, COLORADO 80111
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (303) 796-9793
<PAGE> 2
Item 5. Other Events.
The Company recently declared dividends of $.495 per share on the
Company's Common Stock and $.80 per share on the Company's Psychiatric Group
Depositary Shares payable on November 10, 1995 to shareholders of record on
October 27, 1995. In addition, the Company reported its third quarter
financial results as follows:
AMERICAN HEALTH PROPERTIES, INC.
SELECTED FINANCIAL INFORMATION - THIRD QUARTER
(In thousands, except per share data)
(unaudited)
<TABLE>
<CAPTION>
Consolidated Core Group Psychiatric Group
---------------------- ---------------------- ------------------------
Three Months Ended September 30,
----------------------------------------------------------------------------------
1995 1994 1995 1994 1995(1) 1994
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
REVENUES
Rental income $ 17,182 $ 17,033 $ 16,501 $ 14,942 $ 681 $ 2,091
Mortgage interest income 2,079 1,444 609 - 1,470 1,444
Additional rental and interest income 2,769 2,442 2,543 2,207 226 235
Other interest income 375 855 218 574 157 281
Interest on loans to Psychiatric Group - - 433 1,047 - -
--------- --------- --------- --------- --------- ---------
22,405 21,774 20,304 18,770 2,534 4,051
--------- --------- --------- --------- --------- ---------
EXPENSES
Depreciation and amortization 3,674 3,323 3,488 3,088 186 235
Interest expense 7,126 6,409 7,126 6,409 - -
Interest on loans from Core Group - - - - 433 1,047
General and administrative 1,664 1,566 1,398 1,273 266 293
Targeted stock issuance costs - - - - - -
Write-down of real estate investments - - - - - -
--------- --------- --------- --------- --------- ---------
12,464 11,298 12,012 10,770 885 1,575
--------- --------- --------- --------- --------- ---------
MINORITY INTEREST 57 81 57 81 - -
--------- --------- --------- --------- --------- ---------
NET INCOME $ 9,884 $ 10,395 $ 8,235 $ 7,919 $ 1,649 $ 2,476
--------- --------- --------- --------- --------- ---------
FUNDS FROM OPERATIONS (2) $ 13,938 $ 14,061 $ 12,085 $ 11,308 $ 1,853 $ 2,753
--------- --------- --------- --------- --------- ---------
PER SHARE AMOUNTS (3)
Net Income $ 0.39 $ 0.38 $ 0.79 $ 1.19
Funds From Operations $ 0.58 $ 0.54 $ 0.89 $ 1.32
Dividends $ 0.495 $ 0.475 $ 0.80 $ 1.00
AVERAGE SHARES OUTSTANDING 20,920 20,872 2,091 2,087
</TABLE>
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(1) Base rental and interest income from the Psychiatric Group decreased
in 1995 principally due to the sale of three facilities and the
restructuring of the obligations relating to two other facilities.
(2) Funds From Operations is defined as net income (loss), excluding gains
(losses) from sales of property, adjusted for write-downs of mortgage
notes and certain other non-cash items, primarily depreciation and
amortization. This definition conforms to a definition of funds from
operations previously adopted by NAREIT. NAREIT recently adopted a
modified definition of funds from operations and has recommended that
the new definition be used commencing January 1, 1996. The primary
differences between the old and new NAREIT definitions of funds from
operations are amortization of debt issuance costs and non-cash stock
compensation expense. Funds From Operations does not represent cash
generated from operating activities in accordance with generally
accepted accounting principles, is not necessarily indicative of cash
available to fund cash needs and should not be considered as an
alternative to net income as an indicator of the Company's operating
performance or as an alternative to cash flow as a measure of
liquidity.
(3) For purposes of computing per share and weighted average data for
periods prior to the July 21, 1995 distribution of Psychiatric Group
Stock, the number of shares of Common Stock are assumed to be the same
as the corresponding number of shares of Common Stock outstanding
prior to July 21, 1995, while the number of Depositary Shares are
assumed to be one-tenth of the corresponding number of shares of
Common Stock outstanding prior to July 21, 1995.
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AMERICAN HEALTH PROPERTIES, INC.
SELECTED FINANCIAL INFORMATION - YEAR TO DATE
(In thousands, except per share data)
(unaudited)
<TABLE>
<CAPTION>
Consolidated Core Group Psychiatric Group
---------------------- ---------------------- ------------------------
Nine Months Ended September 30,
----------------------------------------------------------------------------------
1995 1994 1995 1994 1995(1) 1994
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
REVENUES
Rental income $ 50,477 $ 50,439 $ 48,105 $ 44,166 $ 2,372 $ 6,273
Mortgage interest income 5,018 4,334 609 - 4,409 4,334
Additional rental and interest income 8,122 7,165 7,570 6,660 552 505
Other interest income 2,492 3,042 1,959 2,293 533 749
Interest on loans to Psychiatric Group - - 1,602 3,124 - -
--------- --------- --------- --------- --------- ---------
66,109 64,980 59,845 56,243 7,866 11,861
--------- --------- --------- --------- --------- ---------
EXPENSES
Depreciation and amortization 10,667 10,655 10,051 9,078 616 1,577
Interest expense 20,860 19,228 20,860 19,228 - -
Interest on loans from Core Group - - - - 1,602 3,124
General and administrative 4,967 3,929 4,298 3,211 669 718
Targeted stock issuance costs 300 - - - 300 -
Write-down of real estate investments - 30,000 - - - 30,000
--------- --------- --------- --------- --------- ---------
36,794 63,812 35,209 31,517 3,187 35,419
--------- --------- --------- --------- --------- ---------
MINORITY INTEREST 219 245 219 245 - -
--------- --------- --------- --------- --------- ---------
NET INCOME (LOSS) $ 29,096 $ 923 $ 24,417 $ 24,481 $ 4,679 $ (23,558)
--------- --------- --------- --------- --------- ---------
FUNDS FROM OPERATIONS (2) $ 41,350 $ 41,893 $ 35,655 $ 33,877 $ 5,695 $ 8,016
--------- --------- --------- --------- --------- ---------
PER SHARE AMOUNTS (3)
Net Income (Loss) $ 1.17 $ 1.17 $ 2.24 $ (11.30)
Funds From Operations $ 1.71 $ 1.62 $ 2.72 $ 3.84
Dividends $ 1.485 $ 1.399 $ 2.40 $ 3.26
AVERAGE SHARES OUTSTANDING 20,911 20,848 2,091 2,085
BALANCE SHEET INFORMATION (AT PERIOD
END)
Total Assets $ 603,623 $ 584,312(4) $ 553,355 $ 532,083 $ 64,623 $ 86,098
Total Debt $ 280,323 $ 251,609 $ 280,323 $ 251,609 $ 14,355 $ 33,869
Total Shareholders' Equity $ 300,821 $ 310,628 $ 252,834 $ 261,168 $ 47,987 $ 49,460
</TABLE>
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(1) Base rental and interest income from the Psychiatric Group decreased
in 1995 principally due to the sale of three facilities and the
restructuring of the obligations relating to two other facilities.
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(2) Funds From Operations is defined as net income (loss), excluding gains
(losses) from sales of property, adjusted for write-downs of mortgage
notes and certain other non-cash items, primarily depreciation and
amortization. This definition conforms to a definition of funds from
operations previously adopted by NAREIT. NAREIT recently adopted a
modified definition of funds from operations and has recommended that
the new definition be used commencing January 1, 1996. The primary
differences between the old and new NAREIT definitions of funds from
operations are amortization of debt issuance costs and non-cash stock
compensation expense. Funds From Operations does not represent cash
generated from operating activities in accordance with generally
accepted accounting principles, is not necessarily indicative of cash
available to fund cash needs and should not be considered as an
alternative to net income as an indicator of the Company's operating
performance or as an alternative to cash flow as a measure of
liquidity.
(3) For purposes of computing per share and weighted average data for
periods prior to the July 21, 1995 distribution of Psychiatric Group
Stock, the number of shares of Common Stock are assumed to be the same
as the corresponding number of shares of Common Stock outstanding
prior to July 21, 1995, while the number of Depositary Shares are
assumed to be one-tenth of the corresponding number of shares of
Common Stock outstanding prior to July 21, 1995.
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CONSOLIDATED FINANCIAL RESULTS:
On a consolidated basis, gross revenues increased to $22.4 million
in the third quarter of 1995 compared to $21.8 million for the third quarter of
1994. Net income for the third quarter was $9.9 million versus $10.4 million
for 1994. Funds from operations in the third quarter of 1995 were $13.9
million compared to $14.1 million for the third quarter of 1994.
For the nine months ended September 30, 1995, gross revenues were
$66.1 million compared to gross revenues in 1994 of $65 million. Net income
was $29.1 million for the first nine months of 1995 compared to net income of
$923,000 in the previous year. Funds from operations for the first nine months
of 1995 were $41.4 million compared to $41.9 million for the first nine months
of 1994.
During 1994 and 1995, there were a number of one time items that
impacted the financial results. Net income and funds from operations for 1994
include $710,000 of fee income related to the prepayment of a construction
loan. Expenses for 1994 were reduced by $750,000 as a result of the reversal
of a corporate relocation accrual recorded in the fourth quarter of 1993. Net
income in 1994 reflects a write-down of Psychiatric Group real estate
investments of $30 million, taken as a result of increasingly negative trends
in the psychiatric industry. Expenses for 1995 include an additional $300,000
related to the distribution of Psychiatric Group Preferred Stock. Funds from
operations exclude the write-down of Psychiatric Group real estate investments
and the aforementioned non-recurring expenses.
CORE GROUP FINANCIAL DETAIL:
The Core Group reported gross revenues of $20.3 million in the
third quarter of 1995 compared to $18.8 million in the third quarter of 1994, an
increase of 8.2 percent. Net income for the third quarter of 1995 was $8.2
million ($.39 per share) versus $7.9 million ($.38 per share) for the third
quarter of 1994. Core Group funds from operations in the third quarter of 1995
were $12.1 million ($.58 per share) as compared to $11.3 million ($.54 per
share) in the third quarter of 1994. On a per share basis, funds from
operations increased 7.4 percent in the quarter. The Core Group quarterly
dividend of $.495 per share represents a payout ratio of approximately 85
percent of funds from operations.
For the nine months ended September 30, 1995, gross revenues
increased 6.4 percent from $56.2 million to $59.8 million. Net income was
$24.4 million ($1.17 per share) in the first nine months of 1995 compared to
$24.5 million ($1.17 per share) in the first nine months of 1994. Funds from
operations were $35.7 million ($1.71 per share) for the first nine months of
1995 as compared to $33.9 million ($1.62 per share) for the first nine months
of 1994.
Additional rent of $2.5 million and $7.6 million for the third
quarter and first nine months of 1995, respectively, represents a 15% and 14%
increase over the comparable periods in 1994. These increases come from both
new acquisitions and existing properties.
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PSYCHIATRIC GROUP FINANCIAL DETAIL:
The Psychiatric Group reported gross revenues of $2.5 million for
the third quarter of 1995 compared to $4.1 million for the same period in 1994.
Net income for the third quarter of 1995 was $1.6 million ($.79 per depositary
share) versus $2.5 million ($1.19 per depositary share) for the third quarter
of 1994. Psychiatric Group funds from operations in the third quarter of 1995
were $1.9 million ($.89 per depositary share) as compared to $2.8 million
($1.32 per depositary share) in the third quarter of 1994. On a per share
basis, funds from operations decreased 33%.
For the nine months ended September 30, 1995, gross revenues were
$7.9 million compared to $11.9 million in 1994. Net income was $4.7 million
($2.24 per depositary share) for the first nine months of 1995 compared to a
net loss of $23.6 million (($11.30) per depositary share) in the first nine
months of 1994. Funds from operations were $5.7 million ($2.72 per depositary
share) for the first nine months of 1995 as compared to $8 million ($3.84 per
depositary share) for the first nine months of 1994.
Psychiatric Group results for 1995 reflect the decrease in revenue
from the sale of three psychiatric hospitals in October 1994 and February 1995
and the restructuring of two leases related to psychiatric hospital
investments effective January 1, 1995.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits
10.1 Third Amendment To Credit Agreement dated May 17, 1995.
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Date: October 17, 1995 AMERICAN HEALTH PROPERTIES, INC.
(Registrant)
By: /s/ Michael J. McGee
-----------------------------------
Michael J. McGee
Treasurer
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EXHIBIT INDEX
<TABLE>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION PAGE
- ------- ------------------- ----
<S> <C> <C>
10.1 Third Amendment To Credit Agreement dated May 17, 1995.
</TABLE>
<PAGE> 1
THIRD AMENDMENT TO CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT, dated as of May 17, 1995
(this "Agreement"), is among AMERICAN HEALTH PROPERTIES, INC., a Delaware
corporation, as Borrower, the lenders listed on the signature pages hereof as
Revolving Lenders (the "Revolving Lenders"), the lenders listed on the
signature pages hereof as Term Lenders (the "Term Lenders"), BANQUE PARIBAS, as
Term Co-Agent (the "Term Co-Agent") and WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent.
Preliminary Statement
(Certain capitalized terms used herein are below defined)
A. Borrower, Revolving Lenders, Administrative Agent, and
Documentation Agent previously entered into that certain Credit Agreement,
dated as of December 23, 1993, as amended by the First Amendment to Credit
Agreement, dated as of April 27, 1994, and by the Second Amendment to Credit
Agreement, dated as of January 19, 1995 (as so amended, the "Credit
Agreement"). Barclays Bank PLC was removed by Lenders as Documentation Agent
and not replaced, leaving Administrative Agent as the sole Agent under the
Credit Agreement.
B. Borrower wishes to add a $24,000,000 term loan facility to the
Credit Agreement and Term Lenders are prepared to provide such facility on the
terms and conditions set forth below.
C. Pursuant to Section 9.2 of the Credit Agreement, this
Agreement requires the consent of Required Lenders (as defined in the Credit
Agreement prior giving effect to this Agreement) and Administrative Agent, and
upon such consent and with the consent of Term Lenders and subject to the terms
hereof shall be binding upon all Lenders.
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions; Certain Rules of Construction; Schedules.
1.1 Definitions. Unless otherwise stated herein, capitalized
terms used shall have the meaning set forth in the Credit Agreement as amended
hereby.
1.2 Certain Rules of Construction. The rules of construction set
forth in Section 1.3 of the Credit Agreement are applicable to this Agreement.
<PAGE> 2
2. Amendments to Credit Agreement.
2.1 Section 1.1 of the Credit Agreement is hereby amended by
amending and restating the following defined terms in full:
"Applicable Base Rate Margin" means (a) 0.0% in the case of a
Revolving Loan and (b) 0.25% through December 31, 1995, and 0.50%
thereafter in the case of a Term Loan;provided that, in the case of
the Revolving Loans, commencing on the Business Day next following any
period of 180 consecutive days during which the average daily balance
of the Total Usage (exclusive of Loans made following the Closing Date
for permitted Construction and Development Investments to the extent
the projects relating thereto have not yet been completed) has been
more than $50,000,000, such margin shall be 0.5%, such increased
margin to remain in effect until the Business Day next following the
first period of thirty consecutive days after such increased margin
became effective during which the average daily balance of the Total
Usage (exclusive of Loans made following the Closing Date for
permitted Construction and Development Investments to the extent the
projects relating thereto have not yet been completed) has been less
than $50,000,000.
"Applicable Eurodollar Rate Margin" means (a) 1.5% in the case of a
Revolving Loan and (b) 1.75% through December 31, 1995, and 2.00%
thereafter in the case of a Term Loan; provided that (x) in the case
of both Revolving Loans and Term Loans, at any time Threshold Rating
Status exists, such margin shall be decreased by 0.25%; and (y) in the
case of Revolving Loans only, commencing on the Business Day next
following any period of one hundred eighty consecutive days during
which the average daily balance of the Total Usage (exclusive of Loans
made following the Closing Date for permitted Construction and
Development Investments to the extent the projects relating thereto
have not yet been completed) has been more than $50,000,000, such
margin shall be increased by 0.5%, any such increase to remain in
effect until the Business Day next following the first period of
thirty consecutive days after such increase became effective during
which the average daily balance of the Total Usage (exclusive of Loans
made following the Closing Date for permitted Construction and
Development Investments to the extent the projects relating thereto
have not yet been completed) has been less than $50,000,000.
"Borrowing" means a borrowing hereunder consisting of Loans of the
same Class and Type made to Borrower at the same time with, in the
case of Eurodollar Rate Loans, the same Interest Period by Lenders
pursuant to Article I.
"Commitment" means a Revolving Commitment or a Term Commitment, and
"Commitments" means both of the foregoing, as the context may require.
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"Commitment Percentage" means, for any Lender with respect to its
Commitment of any Class, the ratio of such Lender's Commitment of such
Class to the aggregate of all Lenders' Commitments of the same Class.
"Fees" means all Agents' Fees, the Facility Fee, the Term Up-Front
Fee, the Term Facility Fee, the Letter of Credit Fees, and the
Up-Front Fees.
"Issuing Lender" means Wells Fargo in its capacity as the issuer of
Letters of Credit.
"Note" means any one of the promissory notes substantially in the form
of Exhibit N-1 attached hereto, executed by Borrower to the order of a
Lender and evidencing the obligation of Borrower to repay the Loans
made by such Lender to Borrower.
"Required Lenders" means, at the time any determination thereof is to
be made, lenders having at least 66-2/3% of the aggregate of (a) the
Term Commitments, or if the Term Commitments are no longer
outstanding, the Term Loans and (b) the Revolving Commitments, or if
the Revolving Commitments are no longer outstanding, the Revolving
Loans.
2.2 Section 1.1 of the Credit Agreement is hereby amended to add
the following defined terms:
"Term Co-Agent" means Banque Paribas.
"Combined Exposure" means, as to any Lender at any time, an amount
equal to the sum of (a) the Term Loans of such Lender and (b) (i) at
any time prior to the termination of the Revolving Commitments, the
Revolving Commitment of such Lender or (ii) at any time on or after
the termination of the Revolving Commitments, the aggregate amount of
such Lender's (A) Revolving Loans and (B) participation in the Letter
of Credit Liability.
"Maturing Senior Debt" means the $24,000,000 required prepayment due
on May 31, 1995, pursuant to the Note Agreement, dated as of May 1,
1989, among Borrower and the purchasers listed on Schedule I thereto,
relating to Borrower's $125,000,000 Senior Notes, consisting of
$5,000,000 in 11.33% Series A Notes due May 31, 1996, and $120,000,000
in 11.40% Series B Notes due May 31, 1999.
"Revolving Commitment" means, as to any Lender, the obligation of such
Lender to make Revolving Loans to Borrower in an aggregate principal
amount at any one time outstanding up to and including the amount, if
any (a) set forth with respect to such Lender onSchedule 1A hereto
under the caption "Revolving Commitment" or (b) set forth in any
applicable Assignment and Acceptance, as, in either
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case, the same may be reduced from time to time pursuant toSection
2.10 or to give effect to any assignment under Section 9.8(c).
"Revolving Commitment Percentage" means, for any Revolving Lender with
respect to its Revolving Commitment, the ratio of such Lender's
Revolving Commitment to the aggregate of all Lenders' Revolving
Commitments.
"Revolving Lender" means a Lender with a Revolving Commitment.
"Revolving Loan" means a Loan made by a Revolving Lender pursuant to
Section 2.1, and "Revolving Borrowing" means a Borrowing consisting of
Revolving Loans.
"Second Amendment" means the Second Amendment to Credit Agreement,
dated as of January 19, 1995, among Borrower, Revolving Lenders, and
Administrative Agent.
"Term Commitment" means, as to any Lender, the obligation of such
Lender to make a Term Loan to Borrower in an aggregate principal
amount up to and including the amount, if any (a) set forth with
respect to such Lender on Schedule 1A hereto under the caption "Term
Commitment" or (b) set forth in any applicable Assignment and
Acceptance, as, in either case, the same may be reduced from time to
time pursuant toSection 2.10 or to give effect to any assignment
underSection 9.8(c).
"Term Commitment Percentage" means, for any Term Lender with respect
to its Term Commitment, the ratio of such Lender's Term Commitment to
the aggregate of all Lenders' Term Commitments.
"Term Facility Fee" has the meaning set forth in Section 2.11.
"Term Lender" means a Lender with a Term Commitment.
"Term Loan" means a Loan made by a Term Lender pursuant to Section
2.1A and "Term Borrowing" means a Borrowing consisting of Term Loans.
"Term Maturity Date" means April 30, 1997.
"Term Up-Front Fee" has the meaning set forth in Section 2.11.
"Third Amendment" means the Third Amendment to Credit Agreement, dated
as of May 17, 1995, among Borrower, Lenders, and Administrative Agent.
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"Third Amendment Effective Date" means the date on which the Third
Amendment becomes effective pursuant to the terms thereof.
2.3 Article I of the Credit Agreement is hereby amended to add a
new Section 1.7 as follows:
Section 1.7 Classes and Types of Loans. Loans hereunder are
distinguished by "Class" and by "Type." The "Class" of a Loan (or of
a Commitment to make such a Loan or of a Borrowing comprising such
Loans) refers to the determination whether such Loan is a Revolving
Loan or Term Loan, each of which constitutes a Class. Combinations of
such Classes, as well as subdivisions of such Classes may similarly be
referred to as Classes. The "Type" of a Loan (or of a Borrowing
compromising such Loans) refers to the determination whether such Loan
is a Base Rate Loan or an Eurodollar Rate Loan. Loans may be
identified by both Class and Type e.g., a "Revolving Eurodollar Rate
Loan" is a Loan which is both a Revolving Loan and an Eurodollar Rate
Loan).
2.4 Section 2.1 of the Credit Agreement is hereby amended to
insert the word "Revolving" before the terms "Lender", "Lenders", "Loan",
"Loans", "Borrowing", "Borrowings", "Commitment", and "Commitments" each time
any such term appears in such Section 2.1.
2.5 Section 2.1A is hereby added to the Credit Agreement to read
in full as follows:
2.1A Term Loans. Subject to the terms and conditions hereof,
each Term Lender severally agrees to make a single Term Loan
to Borrower, in an amount not to exceed its Term Commitment,
from the Third Amendment Effective Date to May 31, 1995, at
such time and in such amount as Borrower may request in
accordance with Section 2.7.
(a) The Term Borrowing hereunder shall be made
from Lenders ratably according to their respective Commitment
Percentages.
(b) The Term Commitment of each Term Lender shall
terminate on the first to occur of: (i) the making of a Term
Loan by such Lender, and (ii) May 31, 1995, and no Term Lender
shall have any obligation to make any Term Loan on or after
such date.
(c) Any portion of the Term Borrowing once repaid
may not be reborrowed.
(d) The Term Borrowing shall be in a principal
amount of $24,000,000.
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2.6 Section 2.3 of the Credit Agreement is hereby amended to
delete the phrase: "under the Revolving Credit Facility" therefrom.
2.7 Section 2.4 of the Credit Agreement is hereby amended and
restated to read in full as follows:
2.4 Interest Rates; Payment of Principal and Interest.
(a) Borrower shall make each payment hereunder to
Administrative Agent, for the account of each Lender, in
immediately available Dollars at Administrative Agent's office
located at 420 Montgomery Street, San Francisco, California
94163 (or at such other office of Administrative Agent as may
be designated, from time to time, by Administrative Agent) not
later than 10:00 a.m., California time, on the date of payment
(except in the case of (i) costs reimbursed pursuant to
Sections 2.14 and 2.16, and (ii) interest paid in respect of a
Eurodollar Rate Borrowing as to which any Lender (but not all
Lenders) shall have requested and received prepayment of a
Eurodollar Rate Loan and made a Base Rate Loan in a principal
amount equal to the principal amount thereof pursuant to
clause (i) of Section 2.15(a) or 2.17, the payment of such
costs and interest being made by Borrower directly to the
Lender or Lenders claiming same). Administrative Agent shall,
on either the Business Day which is the day on which
Administrative Agent receives a payment from Borrower if
Administrative Agent shall have received such payment from
Borrower by 10:00 a.m., California time, or on the next
Business Day following the Business Day on which
Administrative Agent receives a payment from Borrower if such
payment is received after 10:00 a.m., California time,
initiate payment to each Lender of its ratable share
(according to its Commitment Percentage) of the Loans repaid.
If Administrative Agent shall initiate such payment to a
Lender later than on the Business Day above provided, then
Administrative Agent shall pay to such Lender, in addition to
its ratable share (according to its Commitment Percentage) of
the Loans repaid, interest on such amount, until payment is
initiated, at the Federal Funds Rate.
(b) Subject to Section 2.5, each Base Rate Loan
shall bear interest, upon the unpaid principal balance
thereof, from and including the date advanced or converted to
but excluding the date of repayment or conversion thereof, at
a fluctuating rate, per annum, equal to the lesser of: (i) the
Base Rate plus the Applicable Base Rate Margin; and (ii) the
Highest Lawful Rate. Interest due on Base Rate Loans shall be
due and payable quarterly, in arrears, commencing on the first
Quarterly Payment Date following the Closing
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Date, and continuing on each Quarterly Payment Date thereafter
up to and including the Quarterly Payment Date immediately
preceding the Revolving Credit Facility Maturity Date in the
case of Revolving Loans and Term Maturity Date in the case of
Term Loans, and on the Revolving Credit Facility Maturity Date
in the case of Revolving Loans and Term Maturity Date in the
case of Term Loans.
(c) Subject to Section 2.5, each Eurodollar Rate
Loan shall bear interest, upon the unpaid principal balance
thereof, from and including the date advanced, converted, or
continued to but excluding the date of repayment or conversion
thereof, at a rate, per annum, equal to the lesser of: (i) the
Eurodollar Rate plus the Applicable Eurodollar Rate Margin;
and (ii) the Highest Lawful Rate. Interest due on Eurodollar
Rate Loans shall be due and payable, in arrears, on each
Interest Payment Date applicable to that Eurodollar Rate Loan.
Each Eurodollar Rate Loan shall be for a term equal to the
Interest Period permitted hereunder and requested by Borrower
in the applicable Request for Credit Extension or Request for
Conversion/Continuation; provided that no such Interest Period
may extend beyond the Revolving Credit Facility Maturity Date
in the case of a Revolving Loan or the Term Maturity Date in
the case of a Term Loan.
(d) Unless prepaid in accordance with the terms
hereof, the outstanding principal balance of (i) all Revolving
Loans shall be due and payable, in full, on the Revolving
Credit Facility Maturity Date and (ii) all Term Loans shall be
due and payable, in full, on the Term Maturity Date.
(e) If, as a result of the operation of any
provision of this Agreement, Borrower repays a Eurodollar Rate
Loan prior to the expiration of the Interest Period applicable
thereto, then Borrower shall, concurrently with the repayment
of any such Loan, pay any and all accrued and unpaid interest
on the amount repaid.
(f) Notwithstanding anything to the contrary
contained in this Agreement, Borrower may not have, in the
aggregate, more than (i) five Eurodollar Rate Borrowings
outstanding at any time under the Revolving Commitments and
(ii) one Eurodollar Rate Borrowing outstanding at any time
under the Term Commitments.
2.8 Section 2.8(d) of the Credit Agreement is hereby amended and
restated to read in full as follows:
-7-
<PAGE> 8
(d) No Borrowing (or portion thereof) may be
converted into, or continued as, a Eurodollar Rate Borrowing
with an Interest Period that ends after the Revolving Credit
Facility Maturity Date in the case of a Revolving Borrowing or
after the Term Maturity Date in the case of a Term Borrowing.
If fewer than all of the Loans outstanding at the time of
conversion or continuation shall be converted or continued,
such conversion or continuation shall be made pro rata among
Lenders in accordance with the respective proportions of the
principal amounts of the Loans held by Lenders immediately
prior to such conversion or continuation.
2.9 Section 2.10 of the Credit Agreement is hereby amended and
restated to read in full as follows:
2.10 Termination or Reduction of Commitments; Mandatory and
Voluntary Prepayments.
(a) Voluntary Reduction of Revolving Commitments.
Borrower shall have the right, at any time and from time to
time, to reduce permanently, in whole or in part, the unused
and unreserved portion of the Revolving Commitments. Borrower
shall give Administrative Agent not less than five Business
Days prior written notice designating the date (which shall be
a Business Day) of such reduction and the amount of such
reduction. Such reduction shall be effective on the date
specified in Borrower's notice given in compliance herewith.
Any reduction shall be in a minimum amount of $5,000,000 or
any integral multiple of $1,000,000 in excess thereof and
shall reduce each Revolving Lender's Revolving Commitment
ratably according to its Commitment Percentage extant
immediately prior to such reduction.
(b) Mandatory Prepayments.
(i) Borrower shall, from time to time,
make mandatory prepayments of the Loans, without penalty or
premium, in an amount equal to: (A) 100% of the Net Cash
Proceeds arising from the sale or other disposition of Assets
of Borrower or any of its Subsidiaries pursuant to clauses (a)
and (b) of Section 6.9, (B) 100% of the Net Cash Proceeds
arising from (1) the issuance and sale by Borrower or its
Subsidiaries of debt securities (other than the Term Loans) or
equity securities (including Preferred Stock), or (2) the
incurrence by Borrower or any of its Subsidiaries of any Debt
permitted under Section 6.1(j), and (C) upon Sections 2.1,
2.2, 2.3, 2.4, 2.5, 2.7, and 2.8 of the Second Amendment
becoming effective pursuant to the terms thereof, the lesser
of (1) 100% of the Net Cash Proceeds arising from the sale
-8-
<PAGE> 9
or other disposition of any PG Assets pursuant toclause (c) of
Section 6.9 (as amended by the Second Amendment) and (2) the
outstanding amount of the PG Debt as of the date of such sale
or other disposition; provided that in the case of (A), (B), or
(C) above of this clause (i), the amount of any such mandatory
prepayment shall not exceed the total of (x) then current
Revolving Credit Facility Usage and (y) the outstanding balance
of the Term Loans.
(ii) Each mandatory prepayment shall be
applied (A) in the following order: (1) to prepay the
Revolving Loans to the extent thereof and (2) to prepay the
Term Loans to the extent thereof, (B) to each Lender's
outstanding Loans of a particular Class, based upon such
Lender's pro rata share of the Loans of that Class outstanding
immediately prior to such prepayment, and (C) as to each
Class, first to Base Rate Loans of that Class. Borrower shall
make payment of the amounts required by this Section 2.10(b)
within two Business Days of Borrower's or its Subsidiaries'
receipt of same; provided that, prior to the occurrence and
continuation of any Event of Default or Unmatured Event of
Default, if any amounts required to be prepaid pursuant to
this Section 2.10(b) would result in Borrower becoming liable
for costs pursuant to Section 2.14(d), then Borrower shall
make payment of such amounts on the next maturing Interest
Period(s).
(c) Mandatory Reduction of Revolving Commitments.
From and after notice to Borrower by Administrative Agent,
given at the request of any Revolving Lender, that an Event of
Default or Unmatured Event of Default has occurred and is
continuing, the outstanding Revolving Commitments shall be
permanently reduced (such permanent reduction in the Revolving
Commitments to occur irrespective of the amount or the
Revolving Facility Usage at the time of such reduction in
Commitments) in an amount equal to: (A) 100% of the Net Cash
Proceeds arising on or after the date such notice is given
from the sale or other disposition of Assets of Borrower or
any of its Subsidiaries pursuant to clauses (a) and (b) of
Section 6.9, (B) 100% of the Net Cash Proceeds arising on or
after the date such notice is given from (1) the issuance and
sale by Borrower or its Subsidiaries of debt securities or
equity securities (including Preferred Stock), or (2) the
incurrence by Borrower or any of its Subsidiaries of any Debt
permitted under Section 6.1(j), and (C) upon Sections 2.1,
2.2, 2.3, 2.4, 2.5, 2.7, and 2.8 of the Second Amendment
becoming effective pursuant to the terms thereof, 100% of the
Net Cash Proceeds arising on or after the date such notice is
given from the sale or other disposition of any PG Assets
pursuant to
-9-
<PAGE> 10
clause (c) of Section 6.9. Any reduction of the Revolving
Commitments pursuant to this Section 2.10 shall reduce each
Lender's Revolving Commitment ratably according to such
Lender's Commitment Percentage extant immediately prior to
such reduction.
(d) Voluntary Prepayments. Borrower may upon
notice to Administrative Agent, given one Business Day in
advance in the case of a Base Rate Borrowing and three
Business Days in advance in the case of Eurodollar Rate
Borrowing, prepay any Borrowing in whole at any time, or from
time to time in part in amounts aggregating $5,000,000 or a
larger multiple of $1,000,000 (e.g., $6,000,000), by paying
the principal amount to be prepaid together with accrued
interest thereon to the date of prepayment and any sums
payable pursuant to Section 2.14(d).
The foregoing amendment to Section 2.10(c) of the Credit Agreement entirely
supersedes the amendment to Section 2.10(c) set forth in Section 2.3 of the
Second Amendment.
2.10 Section 2.11 of the Credit Agreement is hereby amended and
restated to read in full as follows:
2.11 Facility and Other Fees.
(a) Borrower shall pay a fee (the "Facility Fee")
to Administrative Agent, to be distributed by Administrative
Agent to each Revolving Lender ratably according to each
Revolving Lender's then existing Commitment Percentage of the
Revolving Commitments. The Facility Fee shall be equal to
0.25%, per annum, of the average daily amount of the aggregate
Revolving Commitments. The Facility Fee shall begin to accrue
on the Closing Date and shall be payable, in arrears,
commencing on the first Quarterly Payment Date after the
Closing Date and continuing on each Quarterly Payment Date
thereafter up to and including the Quarterly Payment Date
immediately preceding the Revolving Credit Facility Maturity
Date, and on the Revolving Credit Facility Maturity Date.
(b) Borrower shall pay a fee (the "Term Up-Front
Fee") to Administrative Agent, to be distributed by
Administrative Agent to each Term Lender ratably according to
its Commitment Percentage of the Term Commitments. The Term
Up-Front Fee shall be equal to 0.75% of the aggregate Term
Commitments and shall be payable on the Third Amendment
Effective Date.
(c) Borrower shall pay a fee (the "Term Facility
Fee") to Administrative Agent, to be distributed by
Administrative Agent to each Term Lender ratably
-10-
<PAGE> 11
according to pro rata share of the Term Loans. The Term
Facility Fee shall be equal to 0.25% of the aggregate amount
of the Term Loans, if any, outstanding on May 31, 1996 and
shall be payable on such date.
2.11 Article III of the Credit Agreement is hereby amended to add a
new Section 3.4 thereto as follows:
3.4 Conditions Precedent to the Term Loans. In addition
to the conditions set forth in Section 3.2, the obligation of
each Term Lender to make its Term Loan is subject to the
fulfillment, at or prior to the time of the making of such
Loan, of each of the following further conditions:
(a) Borrower shall have paid the Term Up-Front
Fee to Administrative Agent for account of each Term Lender;
and
(b) Administrative Agent shall have received a
Note, each duly executed by Borrower to the order of any Term
Lender which has theretofore not received a Note.
2.12 Section 6.1(a) of the Credit Agreement is hereby amended and
restated to read in full as follows:
(a) Borrower and its Subsidiaries may become and
remain liable with respect to the Debt evidenced by any of the
Credit Documents, including the Term Loans:
2.13 Section 6.15 of the Credit Agreement is hereby amended and
restated to read in full as follows:
6.15 Use of Proceeds and Letters of Credit.
(a) Borrower shall use the proceeds of the
initial Revolving Loans made hereunder to repay in full all
Debt of Borrower outstanding under the Original Credit
Agreement (including principal, accrued and unpaid interest,
interest period breakage costs, and fees, costs, and
expenses). Thereafter, Borrower shall use the proceeds of any
Revolving Loans made hereunder solely (i) to make any
Investment permitted by clauses (c) and (d) of Section 6.3 or
(ii) as otherwise expressly provided by this Agreement.
(b) Borrower shall obtain the issuance of Letters
of Credit solely in connection with the ordinary course of its
or its Subsidiaries' business.
(c) Borrower shall use the proceeds of the Term
Loans solely to repay the Maturing Senior Debt.
-11-
<PAGE> 12
2.14 Section 8.1 of the Credit Agreement is amended by new sentence
at the end of the existing text as follows:
Term Co-Agent shall have no rights or duties as an Agent under
this Agreement.
2.15 Section 8.5 of the Credit Agreement is hereby amended to
delete the phrase: "principal amount of the Note then held by such Lender (or,
if no principal is outstanding under the Notes at that time, according to their
share of the Commitment)" appearing at the fourth through the sixth lines
thereof, and substituting therefor the phrase: "Combined Exposure of such
Lender."
2.16 The following exhibits and schedules to the Credit Agreement
are hereby amended and restated in their entirety to be in the forms
respectively attached to this Agreement:
Exhibit A-1 Form of Assignment and Acceptance Agreement
Exhibit R-1 Form of Request for Conversion/Continuation
Exhibit R-2 Form of Request for Credit Extension
Schedule 1A Schedule of Lenders, Commitments, Commitment
Percentages, Domestic Lending Offices, and
Eurodollar Lending Offices
3. Representations and Warranties. Borrower represents and warrants on
and as of the Effective Date (as hereinafter defined) as follows:
3.1 Requisite Power and Authorization. Borrower has all requisite
corporate power to execute and deliver this Agreement and to borrow the sums
provided for in the Credit Agreement as amended hereby. Each of the Subsidiary
Guarantors has all requisite corporate power to execute and deliver the
Reaffirmation of Subsidiary Guarantors appended to this Agreement. The
execution, delivery, and performance of this Agreement have been duly
authorized by Borrower's board of directors and all necessary corporate action
in respect thereof has been taken, and the execution, delivery, and performance
thereof do not require any consent or approval of the stockholders of Borrower
which has not been obtained. The execution, delivery, and performance of the
Reaffirmation of Subsidiary Guarantors appended to this Agreement by each of
the Subsidiary Guarantors have been duly authorized by the board of directors
of each of the Subsidiary Guarantors, and all necessary corporate action in
respect thereof has been taken by each of the Subsidiary Guarantors, and the
execution, delivery, and performance thereof does not require any consent or
approval of
-12-
<PAGE> 13
the stockholders of any of the Subsidiary Guarantors which consent or approval
has not been obtained.
3.2 Binding Agreements. This Agreement has been duly executed and
delivered by Borrower and constitutes the legal, valid, and binding obligation
of Borrower, enforceable against Borrower in accordance with its terms, except
as the enforceability hereof may be affected by: (a) bankruptcy, insolvency,
reorganization, moratorium, or other similar laws affecting the enforcement of
creditors' rights generally; (b) the limitation of certain remedies by certain
equitable principles of general applicability; and (c) the fact that the rights
to indemnification hereunder may be limited by federal or state securities
laws.
3.3 Other Agreements. The execution, delivery, and performance by
Borrower of this Agreement, and the execution and delivery by each of the
Subsidiary Guarantors of the Reaffirmation of Subsidiary Guarantors appended to
this Agreement, do not and will not: (a) violate, (i) any provision of any
material federal (including the Exchange Act), state, or local law, rule, or
regulation (including Regulations G, T, U, and X of the Federal Reserve Board)
binding on Borrower or any of the Subsidiary Guarantors, (ii) any material
order of any domestic governmental authority, court, arbitration board, or
tribunal binding on Borrower or any of the Subsidiary Guarantors, or (iii) the
articles or certificate of incorporation or bylaws of Borrower or any of the
Subsidiary Guarantors; or (b) contravene any provisions of, result in a breach
of, constitute (with the giving of notice or the lapse of time) a default
under, or result in the creation of any Lien (other than Permitted Lien) upon
any of the Assets of Borrower or any of the Subsidiary Guarantors pursuant to
any material Contractual Obligation of Borrower or any of the Subsidiary
Guarantors.
3.4 No Defaults. No Event of Default or Unmatured Event of
Default has occurred and is continuing or will result by virtue of the
transactions contemplated hereby.
4. Conditions to Effectiveness of this Agreement. This Agreement shall
become effective on the date (the "Effective Date") that all of the conditions
set forth below shall have been satisfied (or waived in accordance with the
provisions of this Credit Agreement), and, in either case, the Administrative
Agent gives notice thereof as below provided:
4.1 CounterParts of this Agreement. Receipt by Administrative
Agent of counterparts hereof signed by Borrower, Required Lenders (as defined
in the Credit Agreement prior to giving effect to this Agreement), and Term
Lenders and of counterparts of the Reaffirmation of Subsidiary Guarantors
appended hereto signed by each of Subsidiary Guarantors;
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<PAGE> 14
4.2 Amendment Fee. Receipt by Administrative Agent for the
account of each Revolving Lender of an amendment fee equal to 0.0625 % of such
Lender's Revolving Commitment.
4.3 Opinions of Counsel. Receipt by Administrative Agent of the
written opinion of counsel to Borrower, in form and substance acceptable to
Administrative Agent and its counsel, covering such matters relating to the
transactions contemplated hereby as Administrative Agent may reasonably
request;
4.4 Payment of Certain Amounts. Payment of all fees, costs, and
expenses (including the fees, costs, and expenses of counsel to Administrative
Agent) incurred and billed by the Administrative Agent prior to the Effective
Date in connection with the preparation, negotiation, and execution of this
Agreement and the other documents contemplated hereby; and
4.5 Corporation Documents. Receipt by Administrative Agent of all
documents it may reasonably request relating to the existence of Borrower and
each Subsidiary Guarantor, the corporate authority for and the validity of this
Agreement, the Credit Documents, and any other agreements, documents,
instruments, or matters relevant hereto, all in form and substance satisfactory
to Administrative Agent;
provided that this Agreement shall not become effective or be binding on any
party hereto unless the conditions of this Section are satisfied not later than
May 31, 1995. Promptly upon the occurrence thereof, Administrative Agent shall
notify Borrower and Lenders of the Effective Date and such notice shall be
conclusive and binding as to the occurrence thereof on all parties hereto. The
fees payable pursuant to Section 4.2 hereof are fully earned and non-refundable
when paid, without regard to whether this Agreement becomes otherwise
effective.
5. Miscellaneous.
5.1 No Further Amendments: Conflicts. Except as expressly
modified hereby, the Credit Agreement and the other Credit Documents shall
remain unchanged and in full force and effect. If any conflict exists between
the terms and provisions of this Agreement and those of the Credit Agreement or
any other Credit Document, the terms and provisions of this Agreement shall
control.
5.2 Severability. The illegality or unenforceability of any
provision of this Agreement shall not in any way affect or impair the legality
or enforceability of the remaining provisions of this Agreement, the Credit
Agreement, or any other Credit Document.
5.3 Counterparts. This Agreement may be executed in as many
counterparts as may be deemed necessary or convenient, and by the different
parties hereto on separate counterparts, each of
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<PAGE> 15
which, when so executed, shall be deemed an original but all such counterparts
shall constitute one and the same agreement. Any party may effect execution
and delivery of this Agreement by executing a counterpart hereof and sending
the signature page bearing its signature to Administrative Agent by
telefacsimile and, thereafter, promptly sending by mail such original signature
page to Administrative Agent; provided that the failure to deliver such
original signature page shall not affect the validity, binding nature, or
enforceability of this Agreement.
5.4 GOVERNING LAW; JURISDICTION AND VENUE; WAIVER OF TRIAL BY
JURY. THIS AGREEMENT IS SUBJECT TO THE PROVISIONS OF SECTIONS 9.11, 9.12, AND
9.13 OF THE CREDIT AGREEMENT RELATING TO GOVERNING LAW, JURISDICTION AND VENUE,
AND WAIVER OF TRIAL BY JURY.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the date first written above.
BORROWER: AMERICAN HEALTH PROPERTIES, INC., a
Delaware corporation
By /s/
------------------------------------
Title: EVP
--------------------------------
ADMINISTRATIVE AGENT: WELLS FARGO BANK, NATIONAL ASSOCIATION
By /s/
------------------------------------
Title: Vice President
--------------------------------
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<PAGE> 16
REVOLVING LENDERS: FIRST UNION NATIONAL BANK OF NORTH
CAROLINA
By /s/
------------------------------------
Title: Vice President
--------------------------------
WELLS FARGO BANK, NATIONAL ASSOCIATION
By /s/
------------------------------------
Title: Vice President
--------------------------------
NATIONSBANK OF TEXAS, N.A.
By
------------------------------------
Title:
--------------------------------
BERLINER HANDELS-UND FRANKFURTER BANK
By /s/Evon Contos /s/Dan Dobrjawsky
------------------------------------
Title: VP Asst. Treasurer
--------------------------------
COLORADO NATIONAL BANK
By /s/ Cathy P. Gose
------------------------------------
Title: Vice President
--------------------------------
SANWA BANK CALIFORNIA
By /s/
------------------------------------
Title: Vice President
--------------------------------
TERM LENDERS: WELLS FARGO BANK, NATIONAL ASSOCIATION
By /s/
------------------------------------
Title: Vice President
--------------------------------
BANQUE PARIBAS, as a Term Lender and
as Term Co-Agent
By /s/
------------------------------------
Title: SVP
--------------------------------
By /s/ Clare Baslke
------------------------------------
Title: V. P.
--------------------------------
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<PAGE> 17
FORM OF ASSIGNMENT AND ACCEPTANCE
THIS ASSIGNMENT AND ACCEPTANCE (this "Assignment and
Acceptance"), dated as of ____________, 19___, is entered into between
_________________________ ("Assignor") and ________________________________
("Assignee"), with reference to the following:
Preliminary Statement
WHEREAS, Assignor is a signatory to that certain Credit
Agreement, dated as of December 23, 1993 (as amended, the "Credit Agreement"),
among American Health Properties, Inc., a Delaware corporation ("Borrower"),
the financial institutions signatory thereto (collectively, "Lenders," and,
individually, a "Lender"), Wells Fargo Bank, National Association, as
Administrative Agent (as that term is defined in the Credit Agreement), and
Barclays Bank PLC, as Documentation Agent (as that term is defined in the
Credit Agreement); and
WHEREAS, on the terms and conditions contained herein,
Assignor has agreed to sell and assign to Assignee, and Assignee has agreed to
purchase, the Assigned Percentage (as defined in Section 3 hereof) of
Assignor's rights and obligations as a [Revolving] [Term] Lender under the
Credit Agreement as of the Effective Date (as defined in Section 6 hereof).
NOW, THEREFORE, in consideration of the mutual premises,
covenants, representations, and warranties set forth herein and for other good
and valuable consideration, the parties hereto mutually agree as follows:
1. Definitions. All terms used herein which are defined
in the Credit Agreement shall have the meaning set forth therein, unless
specifically defined herein.
2. Construction. Unless the context of this Assignment
and Acceptance clearly requires otherwise, references to the plural include the
singular and to the singular include the plural, the part includes the whole,
the term "including" is not limiting, and the term "or" has the inclusive
meaning represented by the phrase "and/or". The words "hereof," "herein,"
"hereby," "hereunder," and other similar terms in this Assignment and
Acceptance refer to this Assignment and Acceptance as a whole and not
exclusively to any particular provision of this Assignment and Acceptance.
Article, section, subsection, exhibit, and schedule references are to this
Assignment and Acceptance unless otherwise specified.
3. Assignment. Assignor hereby sells and assigns to
Assignee, WITHOUT RECOURSE, and Assignee hereby purchases and
1
Exhibit A-1
<PAGE> 18
assumes from Assignor, a _________ percent (____%)(1) interest (the "Assigned
Percentage") of Assignor's rights and obligations as a [Revolving] [Term]
Lender under the Credit Agreement as of the Effective Date (including the
Assigned Percentage of (a) Assignor's [Revolving] [Term] Commitment and its
rights [and obligations with respect to Letters of Credit as in effect on the
Effective Date] [Revolving] [Term] [, (b) each of the [Revolving] [Term] Loans
owing to Assignor on the Effective Date, and (c) the promissory notes issued to
and held by Assignor pursuant to Article II of the Credit Agreement, if any
(the "Notes"), held by Assignor on the Effective Date].(2)
4. Representations and Warranties of Assignor.
Assignor: (a) represents and warrants that, as of the date hereof, its
[Revolving] [Term] Commitment (without giving effect to assignments thereof
which have not yet become effective) is ____________________ Dollars
($____________); (b) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (c) represents and warrants
that the Assigned Percentage of Assignor's rights as a [Revolving] [Term]
Lender under the Credit Agreement as of the Effective Date is equal to or
greater than the minimum amount permitted to be assigned under Section 9.8 of
the Credit Agreement; (d) represents and warrants that, as of the Effective
Date, after giving effect to the purchase of the Assigned Percentage of
Assignor's rights as a [Revolving] [Term] Lender under the Credit Agreement,
the aggregate amount of the [Revolving] [Term] Commitment and the [Revolving]
[Term] Loans of Assignor is equal to or greater than the minimum amount
permitted to be assigned under Section 9.8 of the Credit Agreement; (e) makes
no representations or warranty and assumes no responsibility with respect to
any statements, warranties, or representations made in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency, or value of the Credit Agreement, the Notes, or any
of the Ancillary Documents; [and] (f) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of Borrower
or any of its Subsidiaries or any guarantor or the performance or observance by
Borrower or any of its Subsidiaries or any guarantor of any of their
obligations under the Credit Agreement, the Notes, or any of the Ancillary
Documents [;and (g) attaches the Notes referred to in paragraph 3 herein and
requests that Administrative Agent [exchange such Note
- --------------------
(1) Specify percentage of Assignor's interest only in total facility which is
being assigned in nine (9) decimal points.
(2) If the Effective Date is prior to the Closing Date, bracketed provisions
relating to the Loans and Notes should be deleted.
2
Exhibit A-1
<PAGE> 19
for] [cause Borrower to issue] [a new Note, dated , 19 _ in the original face
amount of Dollars ($ ), executed by Borrower and payable to the order of
Assignee] [new Notes as follows: a Note, dated _________________, 19___ in the
original face amount of ____________________ Dollars ($___________) payable to
the order of Assignee, and a Note, dated _________________, 19___, in the
original face amount of _______________________ Dollars ($______________)
executed by Borrower and payable to the order of Assignor].(3)
5. Representations and Warranties of Assignee.
Assignee: (a) confirms that it is an Eligible Assignee; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter this Assignment and Acceptance; (c) agrees that
it will, independently and without reliance upon Agents, any Lender, or any
Issuing Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under any of the Credit Documents; (d) appoints and
authorizes Agents to take such action as agents on its behalf and to exercise
such powers under the Credit Documents as are delegated to Agents; (e) agrees
that it will perform in accordance with their terms all of the obligations
which by the terms of the Credit Documents are required to be performed by it
as a Lender; (f) agrees that, from and after the Effective Date, it shall be
bound by any amendments, modifications, terminations, waivers, or consents to
any of the Credit Documents (to the extent effected in accordance with the
terms thereof) effected prior to the Effective Date; and (g) specifies as its
Domestic Lending Office (and address for notices) and Eurodollar Lending Office
the offices set forth beneath its name on the signature page hereof.
6. Effective Date. The effective date for this
Assignment and Acceptance shall be ________________ ________ (the "Effective
Date").(4) Following the execution of this Assignment and Acceptance: (a)
Assignor shall deliver a fully executed version of this Assignment and
Acceptance to Agents for acceptance by Agents and registration by
Administrative Agent;
- --------------------
(3) Use alternative provisions depending on whether Assignor is retaining an
interest in the facility. Delete references to any Notes which are not
outstanding on the Effective Date of the assignment or if Notes have not
been issued pursuant to Article II of the Credit Agreement.
(4) Such date shall be at least two (2) Business Days after the execution of
this Assignment and Acceptance and shall in no event take place before the
satisfaction of both of the conditions set forth in the second sentence of
Section 6 hereof.
3
Exhibit A-1
<PAGE> 20
and (b) Assignee shall pay to Administrative Agent a registration and
processing fee of $3,000.
7. Rights upon Assignment. Upon such acceptance and
recording, as of the Effective Date: (a) Assignee shall be a party to the
Credit Agreement and shall be entitled to the rights and benefits of each of
the Credit Documents and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a [Revolving] [Term] Lender
thereunder; and (b) Assignor shall, to the extent provided in this Assignment
and Acceptance, relinquish its rights and be released from its obligations
under each of the Credit Documents.
8. Rights Concerning Payments. Upon such acceptance and
recording, from and after the Effective Date, Agents shall make all payments
under the Credit Agreement and the Notes in respect of the interest assigned
hereby (including all payments of principal, interest, and commitment fees with
respect thereto) to Assignee. Assignor and Assignee shall make all appropriate
adjustments in payments under the each of the Credit Documents for periods
prior to the Effective Date directly between themselves.
9. CHOICE OF LAW: CONSENT TO JURISDICTION. EXCEPT AS
OTHERWISE PROVIDED BY THE CREDIT AGREEMENT, THE VALIDITY OF THIS ASSIGNMENT AND
ACCEPTANCE, ITS CONSTRUCTION, INTERPRETATION AND ENFORCEMENT, AND THE RIGHTS OF
THE PARTIES HERETO, SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE
PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS
AGREEMENT SHALL BE TRIED AND DETERMINED ONLY IN THE STATE AND FEDERAL COURTS
LOCATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA. TO THE MAXIMUM
EXTENT PERMITTED BY LAW, ASSIGNOR AND ASSIGNEE EACH WAIVE ANY RIGHT EACH MAY
HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO
THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION.
10. Headings. Section and subsection headings in this
Assignment and Acceptance are included herein for convenience of reference only
and shall not constitute a part of this Assignment and Acceptance or be given
any substantive effect.
11. Severability. In case any provision in or obligation
under this Assignment and Acceptance shall be invalid, illegal, or
unenforceable in any jurisdiction, the validity, legality, and enforceability
of the remaining provisions or obligations, or of such provision or obligation
in any other jurisdiction, shall not in any way be affected or impaired
thereby.
4
Exhibit A-1
<PAGE> 21
12. Counterparts. This Assignment and Acceptance may be
executed in one or more counterparts, each of which shall be deemed an original
but all of which together shall constitute one and the same instrument. Any
party may effect execution and delivery of this Assignment and Acceptance by
executing a counterpart hereof and sending the signature page bearing its
signature to the other parties hereto by telefacsimile and, thereafter,
promptly sending by mail such original signature page to such other parties,
provided that the failure to deliver such original signature page shall not
affect the validity, enforceability, or binding effect of this Assignment and
Acceptance.
13. WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT
PERMITTED BY LAW, EACH OF THE PARTIES HERETO HEREBY EXPRESSLY WAIVES ANY RIGHT
TO TRIAL BY JURY OF ANY ACTION, CAUSE OF ACTION, CLAIM, DEMAND, OR PROCEEDING
ARISING UNDER OR WITH RESPECT TO THIS ASSIGNMENT AND ACCEPTANCE, OR IN ANY WAY
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE DEALINGS OF THE PARTIES WITH
RESPECT TO THIS ASSIGNMENT AND ACCEPTANCE, OR THE TRANSACTIONS RELATED HERETO,
IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND IRRESPECTIVE OF
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE. TO THE MAXIMUM EXTENT
PERMITTED BY LAW, EACH OF THE PARTIES HERETO HEREBY AGREES THAT ANY SUCH
ACTION, CAUSE OF ACTION, CLAIM, DEMAND, OR PROCEEDING SHALL BE DECIDED BY A
COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL
COUNTERPART OF THIS SECTION WITH ANY COURT OR OTHER TRIBUNAL AS WRITTEN
EVIDENCE OF THE CONSENT OF THE OTHER PARTY HERETO TO THE WAIVER OF ITS RIGHT TO
TRIAL BY JURY.
IN WITNESS WHEREOF, Assignor and Assignee have caused this
Assignment and Acceptance to be duly executed and delivered by their officers
"hereunto duly authorized as of the date first written above.
[NAME OF ASSIGNOR]
By:
------------------------------------
Title:
---------------------------------
[NAME OF ASSIGNEE]
By:
------------------------------------
Title:
---------------------------------
Domestic Lending Office: [Address]
Eurodollar Lending Office: [Address]
Accepted this _____ day of ________________, 19___:
WELLS FARGO BANK, NATIONAL ASSOCIATION,
5
Exhibit A-1
<PAGE> 22
as Administrative Agent
By:
------------------------------------
Title:
---------------------------------
AMERICAN HEALTH PROPERTIES, INC.,
a Delaware corporation
By:
------------------------------------
Title:
---------------------------------
6
Exhibit A-1
<PAGE> 23
REQUEST FOR CONVERSION/CONTINUATION
TO: WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent
420 Montgomery Street, 9th Floor
San Francisco, California 94163
Attention: Mr. David A. Neumann
Pursuant to that certain Credit Agreement, dated as of
December 23, 1993 (as amended, the "Credit Agreement"), among American Health
Properties, Inc., a Delaware corporation ("Borrower"), the financial
institutions signatory thereto, Wells Fargo Bank, National Association, as
Administrative Agent, and Barclays Bank PLC, as Documentation Agent, this
Request for Conversion/Continuation represents Borrower's request to:
(a) convert $_________________ in principal amount of
[Term] [Revolving] [Base] [Eurodollar] Rate Borrowings on ________________,
19___, to a [Eurodollar] Rate Borrowing; with an interest period of ___________
months and expiring on ________________, 19___;
(b) convert $_____________ in principal amount of [Term]
[Revolving] Eurodollar Rate Borrowings on _______________, 19___ to a Base Rate
Borrowing;
(c) continue as Eurodollar Rate Borrowings $__________ in
principal amount of presently outstanding [Term] [Revolving] Eurodollar Rate
Borrowings, commencing on ________________, 19___, with an interest period of
months and expiring on ______________, 19___.
All terms used herein which are defined in the Credit
Agreement shall have the meaning set forth therein, unless specifically defined
herein.
Dated: __________________, 19___.
AMERICAN HEALTH PROPERTIES, INC., a
Delaware corporation
By:
------------------------------------
Title:
---------------------------------
Exhibit R-1
<PAGE> 24
REQUEST FOR CREDIT EXTENSION
TO: WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent
420 Montgomery Street, 9th Floor
San Francisco, California 94163
Attention: Mr. David A. Neumann
Pursuant to that certain Credit Agreement, dated as of
December 23, 1993 (as amended, the "Credit Agreement"), among American Health
Properties, Inc., a Delaware corporation ("Borrower"), the financial
institutions signatory thereto (collectively, "Lenders" and individually, a
"Lender"), Wells Fargo Bank, National Association, as Administrative Agent, and
Barclays Bank PLC, as Documentation Agent, this Request for Credit Extension,
delivered in accordance with Section 2.7 of the Credit Agreement, represents
Borrower's request for an extension of credit pursuant to the Credit Agreement
as follows:
1. The Class of the Borrowing is (check as applicable).
______ Term Borrowing
______ Revolving Borrowing (or the issuance of a Letter of
Credit under the Revolving Commitments)
2. The Type of Borrowing is:
$______ A Base Rate Borrowing;
$______ A Eurodollar Rate Borrowing with an Interest Period
of months, expiring on ______________, 19___; and
$______ The issuance of one or more Letters of Credit on the
terms and conditions set forth on Schedule 1 attached
hereto.
$_____ TOTAL
3. [It is requested that the Borrowing requested hereby be made
available on ___________________________, 19__.] [It is requested that the
Letter(s) of Credit requested hereby be made available as soon as possible.]
[The proceeds of the Revolving Borrowing requested hereby is
are to be used for the following Investments, which Investments are permitted
under Section 6.3(c) and/or 6.3(d) of the Credit Agreement [identify Investment
and specify whether Investment is a Construction and Development
Investment:__________________________________
1
Exhibit R-2
<PAGE> 25
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
_______________________________________.]
[The Letter of Credit requested hereby is to be used for the
following purpose:______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
_______________________________________.]
The undersigned, a Responsible Officer of Borrower, hereby
certifies that:
(a) the representations and warranties of Borrower
contained in the Credit Agreement are true and correct in all material respects
on and as of the date hereof, except to the extent such representations and
warranties relate solely to an earlier date;
(b) no Event of Default or Unmatured Event of Default has
occurred and is continuing or will result from the proposed extension of
credit; and
(c) Borrower has performed all agreements and satisfied
all conditions under the Credit Agreement to be performed or satisfied by it on
or before the date hereof.
All terms used herein which are defined in the Credit
Agreement shall have the meaning set forth therein, unless specifically defined
herein.
Dated: _____________________, 19____
AMERICAN HEALTH PROPERTIES, INC., a
Delaware corporation
By:
------------------------------------
Title:
---------------------------------
2
Exhibit R-2
<PAGE> 26
TERMS AND CONDITIONS OF LETTERS OF CREDIT
Stated Amount:
Account Party:
Beneficiary:
Expiry Date:
Conditions for Drawing:
Schedule 1
<PAGE> 27
SCHEDULE 1A
This Schedule 1A sets forth, for each Lender, its Domestic
Lending Office, Eurodollar Lending Office (if different from its Domestic
Lending Office), Commitment Percentage, and Commitment.
Revolving Commitments
---------------------
1. Lender: FIRST UNION NATIONAL BANK OF NORTH CAROLINA
Domestic Lending Office: One First Union Center
Charlotte, NC 28288-0735
Eurodollar Lending Office: See Domestic Lending Office
Revolving Commitment Percentage: 25.000000000%
Revolving Commitment: U.S. $25,000,000
2. Lender: WELLS FARGO BANK, NATIONAL ASSOCIATION
Domestic Lending Office: 420 Montgomery Street
9th Floor
San Francisco, CA 94163
Eurodollar Lending Office: See Domestic Lending Office
Revolving Commitment Percentage: 25.000000000%
Revolving Commitment: U.S. $25,000,000
3. Lender: NATIONSBANK OF TEXAS, N.A.
Domestic Lending Office: 901 Main Street, 67th Floor
Dallas, TX 7520275
Eurodollar Lending Office: See Domestic Lending Office
Revolving Commitment Percentage: 20.000000000%
Revolving Commitment: U.S. $20,000,000
4. Lender: BERLINER HANDELS- UND FRANKFURTER BANK
Domestic Lending Office: 111 West Ocean Blvd.
Suite 1325
P.O. Box 32186
Long Beach, CA 90832-2186
Eurodollar Lending Office: See Domestic Lending Office
Revolving Commitment Percentage: 10.000000000%
Revolving Commitment: U.S. $10,000,000
5. Lender: COLORADO NATIONAL BANK
1
<PAGE> 28
Domestic Lending Office: 918 Seventeenth Street
Mail Station: CNBB0211
Denver, CO 80202
Eurodollar Lending Office: See Domestic Lending Office
Revolving Commitment Percentage: 10.000000000%
Revolving Commitment: U.S. $10,000,000
6. Lender: SANWA BANK CALIFORNIA
Domestic Lending Office: 601 South Figuerora Street
8th Floor
Los Angeles, CA 90017
Eurodollar Lending Office: See Domestic Lending Office
Revolving Commitment Percentage: 10.000000000%
Revolving Commitment: U.S. $10,000,000
Total Revolving Lenders Total Revolving Commitments
----------------------- ---------------------------
6 U.S. $100,000,000
Term Commitments
----------------
1. Lender: WELLS FARGO BANK, NATIONAL ASSOCIATION
Domestic Lending Office: 420 Montgomery Street
9th Floor
San Francisco, CA 94163
Eurodollar Lending Office: See Domestic Lending Office
Term Commitment: 50.000000000%
Revolving Commitment Percentage: U.S. $12,000,000
2. Lender: BANQUE PARIBAS
Domestic Lending Office: 2029 Century Park East
Suite 3900
Los Angeles, CA 90067
Eurodollar Lending Office: See Domestic Lending Office
Term Commitment Percentage: 50.000000000%
Revolving Commitment Percentage: U.S. $12,000,000
Total Term Lenders Total Term Commitment
------------------ ---------------------
2 U.S. $24,000,000
2
