<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 24, 1997
REGISTRATION NO. 333-27651
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
AMERICAN HEALTH PROPERTIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 95-4084878
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
6400 SOUTH FIDDLER'S GREEN CIRCLE, SUITE 1800
ENGLEWOOD, COLORADO 80111
(303) 796-9793
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
JOSEPH P. SULLIVAN
6400 SOUTH FIDDLER'S GREEN CIRCLE, SUITE 1800
ENGLEWOOD, COLORADO 80111
(303) 796-9793
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
COPIES TO:
PAUL HILTON
DAVIS, GRAHAM & STUBBS, LLP
370 17TH STREET, SUITE 4700
DENVER, COLORADO 80202
(303) 892-9400
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement, as determined
by the Registrant.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier registration statement for the same
offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
(Cover continued on following page)
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<PAGE> 2
CALCULATION OF REGISTRATION FEE
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======================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED(1) REGISTERED(2) PER UNIT(3) OFFERING PRICE(2)(4)(5) FEE(4)
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<S> <C> <C> <C> <C>
Debt Securities(6)...
- ------------------------------------------------------------------------------------------------------------------
Preferred Stock, $.01
par value............
- ------------------------------------------------------------------------------------------------------------------
Depositary Shares....
- ------------------------------------------------------------------------------------------------------------------
Common Stock, $.01
par value(7)(8)......
- ------------------------------------------------------------------------------------------------------------------
Warrants.............
- ------------------------------------------------------------------------------------------------------------------
Total................ $300,000,000 100% $300,000,000 $90,910(9)
==================================================================================================================
</TABLE>
(1) Any securities registered hereunder may be sold separately or as units with
other securities registered hereunder. Subject to Footnote (4), there are
being registered hereunder an indeterminate principal amount of Debt
Securities, Preferred Stock (and Depositary Shares with respect thereto),
Common Stock and Warrants as may be sold from time to time by the
Registrant. This Registration Statement also covers contracts that may be
issued by the Registrant under which the counterparty may be required to
purchase Debt Securities, Preferred Stock, Depositary Shares, Common Stock
or Warrants. Such contracts would be issued with Debt Securities, Preferred
Stock, Depositary Shares, Common Stock or Warrants. There are also being
registered hereunder an indeterminate principal amount of Debt Securities,
Preferred Stock, Depositary Shares, Common Stock and Warrants as may be
issuable upon conversion of Debt Securities, Preferred Stock or Warrants or
pursuant to antidilution provisions thereof. This Registration Statement
does not cover Common Stock that may be issuable upon exchange of the
Psychiatric Group Stock.
(2) In U.S. dollars or the equivalent thereof in one or more foreign currencies
or currency units or composite currencies, including the European Currency
Unit.
(3) The proposed maximum offering price per unit will be determined from time to
time by the Registrant in connection with the issuance by the Registrant of
the securities registered hereunder.
(4) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o). In no event will the aggregate initial offering
price of the Debt Securities, Preferred Stock, Depositary Shares, Common
Stock and Warrants issued under this Registration Statement exceed
$300,000,000 or the equivalent thereof in one or more foreign or composite
currencies.
(5) No separate consideration will be received for (i) Debt Securities, shares
of Common Stock or Preferred Stock or Depositary Shares that are issued upon
conversion of Debt Securities, Preferred Stock or Depositary Shares or (ii)
Debt Securities, shares of Common Stock or Preferred Stock or Depositary
Shares that are issued upon exercise of Warrants registered hereby.
(6) If any such Debt Securities are issued at an original issue discount, then
the offering price shall be in such greater principal amount as shall result
in an aggregate initial offering price of up to $300,000,000.
(7) The aggregate amount of Common Stock registered hereunder is limited to that
which is permissible under Rule 415(a)(4) under the Securities Act of 1933,
as amended.
(8) This Registration Statement also covers Preferred Stock Purchase Rights
under the Registrant's Preferred Stock Purchase Rights Plan, which are
attached to and tradeable only with the shares of Common Stock registered
hereby. No registration fees are required for such shares and such rights as
they will be issued for no additional consideration.
(9) Fee previously paid.
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
<PAGE> 4
ITEM 16. EXHIBITS
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1.1 Underwriting Agreement dated October 22, 1997 between American Health
Properties, Inc. and Goldman, Sachs & Co., BT Alex. Brown
Incorporated, EVEREN Securities, Inc., Morgan Stanley & Co.
Incorporated and PaineWebber Incorporated.
1.2++ Form of Underwriting Agreement for Debt Securities
1.3 Pricing Agreement dated October 22, 1997 between American
Health Properties, Inc. and Goldman, Sachs & Co., BT Alex.
Brown Incorporated, EVEREN Securities, Inc., Morgan Stanley
& Co. Incorporated and Paine Webber Incorporated
4.1 Restated Certificate of Incorporation, incorporated by
reference from Exhibit 4.1 to the Company's Registration
Statement on Form S-3 (No. 33-61895)
4.2 Certificate of Designations of Psychiatric Group Preferred
Stock, incorporated by reference from Exhibit 4.1 to the
Current Report on Form 8-K dated August 14, 1995
4.3 Amended and Restated By-laws, as amended to date,
incorporated by reference from Exhibit 3.2 to the Annual
Report on Form 10-K for the period ended December 31, 1992
(Commission File No. 1-9381)
4.4 Rights Agreement dated as of April 10, 1990, incorporated by
reference from Exhibit 2 to the Company's Registration
Statement on Form 8-A dated April 10, 1990 (Commission File
No. 1-9381)
4.5 Form of Senior Indenture, including form of Senior Debt
Security, incorporated by reference to Exhibit 4.5 to the
Company's Registration Statement on Form S-3 dated September
26, 1995 (No. 33-61895)
4.6 Form of Subordinated Indenture, including form of
Subordinated Security, incorporated by reference to Exhibit
4.6 to the Company's Registration Statement on Form S-3
dated September 26, 1995 (No. 33-61895)
4.7 Form of Certificate of Designations of Preferred Stock,
incorporated by reference to Exhibit 4.7 to the Company's
Registration Statement on Form S-3 dated September 26, 1995
(No. 33-61895)
4.8 Form of Deposit Agreement, including form of Depositary
Receipt for Depositary Shares, incorporated by reference to
Exhibit 4.8 to the Company's Registration Statement on Form
S-3 dated September 26, 1995 (No. 33-61895)
4.9 Specimen Stock Certificate with respect to Preferred Stock,
incorporated by reference to Exhibit 4.9 to the Company's
Registration Statement on Form S-3 dated September 26, 1995
(No. 33-61895)
4.10 Specimen Stock Certificate with respect to Common Stock,
incorporated by reference to Exhibit 4.10 to the Company's
Registration Statement on Form S-3 dated September 26, 1995
(No. 33-61895)
4.11 Form of Preferred Stock Warrant Agreement (including form of
Preferred Stock Warrant Certificate), incorporated by
reference to Exhibit 4.11 to the Company's Registration
Statement on Form S-3 dated September 26, 1995 (No.
33-61895)
4.12 Form of Common Stock Warrant Agreement (including form of
Common Stock Warrant Certificate), incorporated by reference
to Exhibit 4.12 to the Company's Registration Statement on
Form S-3 dated September 26, 1995 (No. 33-61895)
4.13 Form of Debt Warrant Agreement (including form of Debt
Warrant Certificate), incorporated by reference to Exhibit
4.13 to the Company's Registration Statement on Form S-3
dated September 26, 1995 (No. 33-61895)
5.1* Opinion of Davis, Graham & Stubbs, LLP
12.1* Statement regarding computations of ratio of earnings to
fixed charges
23.1 Consent of Arthur Andersen LLP, independent public
accountants
23.2* Consent of Davis, Graham & Stubbs, LLP (included in Exhibit
5.1)
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II-2
<PAGE> 5
24.1* Powers of Attorney
25.1+ Statement of Eligibility on Form T-1 with respect to the
Securities
- ---------------
* Previously filed
+ To be filed prior to effectiveness, on a Current Report on Form 8-K, or in
accordance with Rule 5b-3 under the Trust Indenture Act of 1939, as amended.
++ To be filed by post-effective amendment or in a Current Report on Form 8-K
II-3
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment to be
signed on its behalf by the undersigned, thereunto duly authorized, in Denver,
Colorado on the 24th day of October, 1997.
AMERICAN HEALTH PROPERTIES, INC.
By: /s/ Joseph P. Sullivan*
-----------------------------------
Joseph P. Sullivan
Chairman of the Board of Directors,
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
has been signed below by the foregoing persons in the capacities and on the
dates indicated.
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/s/ Joseph P. Sullivan* Chairman of the Board of October 24, 1997
- --------------------------------------------- Directors, President and Chief
Joseph P. Sullivan Executive Officer
/s/ Michael J. McGee Senior Vice President, Chief October 24, 1997
- --------------------------------------------- Financial Officer (Principal
Michael J. McGee Financial and Accounting Officer)
and Assistant Secretary
/s/ Royce Diener* Director October 24, 1997
- ---------------------------------------------
Royce Diener
/s/ James L. Fishel* Director October 24, 1997
- ---------------------------------------------
James L. Fishel
Director
- ---------------------------------------------
Charles M. Haar
Director
- ---------------------------------------------
James D. Harper, Jr.
/s/ Sheldon S. King* Director October 24, 1997
- ---------------------------------------------
Sheldon S. King
Director
- ---------------------------------------------
John P. Mamana, M.D.
/s/ Louis T. Rosso* Director October 24, 1997
- ---------------------------------------------
Louis T. Rosso
*By: /s/ MICHAEL J. MCGEE
-----------------------------------------
Michael J. McGee
Attorney-in-fact
</TABLE>
II-5
<PAGE> 7
EXHIBIT INDEX
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EXHIBIT PAGE
NUMBER DOCUMENT NUMBER
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1.1 Underwriting Agreement dated October 22, 1997 between American
Health Properties, Inc. and Goldman, Sachs & Co., BT Alex. Brown
Incorporated, EVEREN Securities, Inc. Morgan Stanley & Co.
Incorporated and PaineWebber Incorporated.
1.3 Pricing Agreement dated October 22, 1997 between American Health
Properties, Inc. and Goldman, Sachs & Co., BT Alex. Brown
Incorporated, EVEREN Securities, Inc. Morgan Stanley & Co.
Incorporated and PaineWebber Incorporated.
23.1 Consent of Arthur Andersen LLP, independent public
accountants
</TABLE>
See Exhibits for Description
<PAGE> 1
Conformed Copy
AMERICAN HEALTH PROPERTIES, INC.
PREFERRED STOCK
AND/OR
DEPOSITARY SHARES FOR PREFERRED STOCK
----------------------------
UNDERWRITING AGREEMENT
October 22, 1997
Goldman, Sachs & Co.,
BT Alex. Brown Incorporated,
EVEREN Securities, Inc.,
Morgan Stanley & Co. Incorporated,
PaineWebber Incorporated,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
To the several Underwriters named in the
respective Pricing Agreements
hereinafter described and/or to the
Representatives of such several Underwriters.
Ladies and Gentlemen:
From time to time American Health Properties, Inc., a Delaware corporation
(the "Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain shares (the "Shares") of its Preferred Stock, par
value $.01 per share (the "Preferred Stock"), which may be represented by
depositary shares (the "Depositary Shares") deposited against delivery of
Depositary Receipts (the "Depositary Receipts") evidencing the Depositary
Shares which are to be issued by the depositary specified in Schedule II to
such Pricing Agreement (the "Depositary"), under a deposit agreement, dated the
date specified in Schedule II to such Pricing Agreement, among the Company, the
Depositary and the holders from time to time of the Depositary Receipts issued
thereunder (the "Deposit Agreement"). Each Depositary Share will represent
beneficial ownership of the fraction of a Share of such Preferred Stock, as
specified in Schedule II to such Pricing Agreement. The Shares and the
Depositary Shares are herein called the "Securities" and, with respect to a
particular Pricing Agreement, the Shares and Depositary Shares subject thereto
are herein called the "Designated Securities". The Shares of Preferred Stock
or the Depositary Shares representing such Shares specified in such Pricing
Agreement, as the case may be, are referred to as the "Firm Shares" with
respect to such Pricing Agreement. Additionally, if specified in such Pricing
Agreement, the Company may grant the Underwriters the right to purchase at
their election an additional number of Shares of Preferred Stock or Depositary
Shares, as the case may be, specified as provided in such Pricing Agreement and
as provided in Section 3 hereof (the
<PAGE> 2
"Optional Shares"). The Firm Shares and the Optional Shares, if any, which the
Underwriters elect to purchase pursuant to Section 3 hereof are herein
collectively referred to as the "Designated Shares" or the "Designated
Securities".
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto.
1. Particular sales of Designated Securities may be made from time to time
to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate number of the Firm Shares, the maximum number of Option Shares,
if any, the initial public offering price of such Designated Securities, the
purchase price to the Underwriters of such Designated Securities, the names of
the Underwriters of such Designated Securities, the names of the
Representatives of such Underwriters and the number of such Designated
Securities to be purchased by each Underwriter and shall set forth the date,
time and manner of delivery of such Designated Securities and payment therefor.
The Pricing Agreement shall also specify (to the extent not set forth in the
registration statement and prospectus with respect thereto) the terms of such
Designated Securities. A Pricing Agreement shall be in the form of an executed
writing (which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-27651) in respect
of the Securities (and certain other securities) has been filed with the
Securities and Exchange Commission (the "Commission"); such registration
statement and any post-effective amendment thereto, each in the form
heretofore delivered or to be delivered to the Representatives and, excluding
exhibits to such registration statement, but including all documents
incorporated by reference in the prospectus contained therein, to the
Representatives for each of the other Underwriters, have been declared
effective by the Commission in such form; no other document with respect to
such registration statement or document incorporated by reference therein has
heretofore been filed or transmitted for filing with the Commission (other
than prospectuses filed pursuant to Rule 424(b) of the rules and regulations
of the Commission under the Securities Act of 1933, as amended (the "Act"),
or a post-effective amendment under Section 462(d) of the Act, each in the
form heretofore delivered to the Representatives); and no stop order
suspending the effectiveness of such registration statement has been issued
and no proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in such registration
statement or filed with the Commission pursuant to Rule 424(b) under the Act
and relating to the Securities, is hereinafter called a "Preliminary
Prospectus"; the various parts of such registration statement, including all
exhibits thereto and the documents incorporated by
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<PAGE> 3
reference in the prospectus contained in the registration statement at the
time such part of the registration statement became effective but excluding
Form T-1, each as amended at the time such part of the registration statement
became effective, are hereinafter collectively called the "Registration
Statement"; the prospectus and any prospectus supplement relating to the
Securities, in the form in which it has most recently been filed, or
transmitted for filing, with the Commission on or prior to the date of this
Agreement, being hereinafter called the "Prospectus"; any reference herein to
any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary Prospectus
or Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and incorporated by reference
in such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to
Sections 13(a) or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the Registration
Statement; and any reference to the Prospectus as amended or supplemented
shall be deemed to refer to the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in the form in which it is
filed with the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 5(a) hereof, including any documents incorporated by reference
therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the Prospectus or
any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will conform
in all material respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission thereunder and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(c) The Registration Statement and the Prospectus conform, and any further
amendments or supplements to the Registration Statement or the Prospectus
will conform, in all material respects to the requirements of the Act and the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
rules and regulations of the Commission thereunder and do not and will not,
as of the applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the Prospectus
and any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in
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<PAGE> 4
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
(d) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or incorporated
by reference in the Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Prospectus; neither the Company nor any of its subsidiaries has incurred any
material liabilities or obligations, direct or contingent, nor entered into
any material transactions not in the ordinary course of business, otherwise
than as set forth in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the Prospectus,
there has not been any material change in the capital stock or long-term debt
of the Company or any of its subsidiaries or any material adverse change, or
any development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries taken as
a whole, otherwise than as set forth or contemplated in the Prospectus;
(e) The Company and its subsidiaries have good and marketable title to all
real property and good and marketable title to all personal property owned by
them, respectively, in each case free and clear of all liens, encumbrances
and defects or any conditional sale agreement or other title retention
agreement except such as are described in the Prospectus or such as do not
materially affect the value of such property and do not interfere with the
use made and proposed to be made of such property by the Company and its
subsidiaries; the mortgages which the Company holds on the properties
situated in Katonah, Westchester County, New York, Saratoga Springs, Saratoga
County, New York, and Houston, Texas, are valid and binding and each
constitutes a valid first mortgage lien for the benefit of the Company on
such property and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries;
(f) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to require such
qualification, or is subject to no material liability or disability by reason
of the failure to be so qualified in any such jurisdiction; the Company and
each of its subsidiaries are in possession of and operating in all material
respects in compliance with all franchises, grants, authorizations, licenses,
permits, easements, consents, certificates and orders required for the
conduct of its business, all of which are valid and in full force and effect;
and each subsidiary of the Company has been duly organized or incorporated
and is validly existing as a partnership or corporation in good standing
under the laws of its jurisdiction of organization or incorporation;
(g) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable;
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<PAGE> 5
(h) The Shares and the Depositary Shares, if any, included in the
Designated Securities have been duly and validly authorized, and, when the
Firm Shares and Optional Shares, if any, are issued and delivered pursuant to
this Agreement and the Pricing Agreement with respect to such Designated
Securities and, in the case of any Optional Shares, pursuant to an
Over-Allotment Option (as defined in Section 3 hereof) with respect to such
Optional Shares, such Designated Securities will be duly and validly issued
and fully paid and non-assessable; the Securities conform to the description
thereof contained in the Registration Statement and the Designated Securities
will conform to the description thereof contained in the Prospectus as
amended or supplemented with respect to such Designated Securities;
(i) The issue and sale of the Securities and the compliance by the Company
with all of the provisions of the Securities, the Deposit Agreement, this
Agreement and any Pricing Agreement, and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a default
under, any material indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company is a party or by which the
Company is bound or to which any of the property or assets of the Company or
any of its subsidiaries is subject, nor will such action result in any
violation of the provisions of the Certificate of Incorporation or By-laws of
the Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such court
or governmental agency or body is required for the issue and sale of the
Securities or the consummation by the Company of the transactions
contemplated by this Agreement or any Pricing Agreement or the Deposit
Agreement, except such as have been, or will have been prior to each Time of
Delivery, obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(j) The statements set forth in the Prospectus under the captions
"Description of Preferred Stock," "Description of Depositary Shares" and
"Description of Series B Preferred Stock", insofar as they purport to
constitute a summary of the terms of the Securities, and under the captions
"Certain Federal Income Tax Considerations", "Plan of Distribution" and
"Underwriting", insofar as they purport to describe the provisions of the
laws and documents referred to therein, are correct in all material respects;
(k) Neither the Company nor any of its subsidiaries is in violation of its
organizational documents or charter or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or any of
its properties may be bound, except for such defaults that would not have a
material adverse effect on the business, operations, properties, prospects,
profits or condition (financial or other) of the Company and its
subsidiaries, taken as a whole;
(l) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of its
subsidiaries is the subject that would reasonably be expected, individually
or in the aggregate, to have a material adverse effect on the consolidated
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental authorities
or threatened by others; neither the
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<PAGE> 6
Company nor any of its subsidiaries is in violation of any law, statute,
ordinance, rule, regulation, order or decree of any court, governmental body
or regulatory authority or administrative agency having jurisdiction over the
Company or such subsidiary (including, without limitation, any such law,
statute, ordinance, rule, regulation, order or decree with respect to
environmental protection or the release, handling, treatment, storage or
disposal of hazardous substances or toxic waste) which violation would be
reasonably likely to materially and adversely affect the business,
operations, properties, prospects, profits or condition (financial or other)
of the Company and its subsidiaries, taken as a whole;
(m) The Company is not and, after giving effect to the offering and sale
of the Securities, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(n) Arthur Andersen LLP, who have certified certain financial statements
of the Company and its subsidiaries, are independent public accountants as
required by the Act and the rules and regulations of the Commission
thereunder;
(o) The Company qualified as a "real estate investment trust" (a "REIT")
under Sections 856 through 860 of the Internal Revenue Code of 1986, as
amended (the "Code") for its taxable year ended December 31, 1996, and for
each of its prior taxable years ended on or after December 31, 1987 that are
open to assessment by the Internal Revenue Service (the "Service"). The
Company is organized and carries on its business so as to qualify as a REIT
under the Code, and no transaction or other event has occurred which would
cause the Company not to continue to qualify as a REIT for its current
taxable year or for future taxable years; and
(p) Neither the Company nor any of its affiliates does business with the
government of Cuba or with any person or affiliate located in Cuba within the
meaning of Section 517.075, Florida Statutes.
3. Upon the execution of the Pricing Agreement applicable to any Designated
Securities and authorization by the Representatives of the release of such
Designated Securities, or of the Firm Shares, as the case may be, the several
Underwriters propose to offer such Designated Securities or Firm Shares for
sale upon the terms and conditions set forth in the Prospectus as amended or
supplemented.
The Company may specify in the Pricing Agreement applicable to any
Designated Securities that the Company thereby grants to the Underwriters the
right (an "Over-Allotment Option") to purchase at their election up to the
number of Optional Shares set forth in such Pricing Agreement, on the terms set
forth therein, for the sole purpose of covering over-allotments in the sale of
the Firm Shares. Any such election to purchase Optional Shares may be
exercised by written notice from the Representatives to the Company, given
within a period specified in the Pricing Agreement, setting forth the aggregate
number of Optional Shares to be purchased and the date on which such Optional
Shares are to be delivered, as determined by the Representatives but in no
event earlier than the First Time of Delivery (as defined in Section 4 hereof),
or, unless the Representatives and the Company otherwise agree in writing,
earlier than or later than the respective number of business days after the
date of such notice set forth in such Pricing Agreement.
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<PAGE> 7
The number of Optional Shares to be added to the number of Firm Shares to
be purchased by each Underwriter as set forth in Schedule I to the Pricing
Agreement applicable to such Designated Securities shall be, in each case, the
number of Optional Shares which the Company has been advised by the
Representatives have been attributed to such Underwriter; provided that, if the
Company has not been so advised, the number of Optional Shares to be so added
shall be, in each case, that proportion of Optional Shares which the number of
Firm Shares to be purchased by such Underwriter under such Pricing Agreement
bears to the aggregate number of Firm Shares (rounded as the Representatives
may determine to the nearest 100 shares). The total number of Designated
Securities to be purchased by all the Underwriters pursuant to such Pricing
Agreement shall be the aggregate number of Firm Shares set forth in Schedule I
to such Pricing Agreement plus the aggregate number of Optional Shares which
the Underwriters elect to purchase.
4. Certificates for the Firm Shares and the Optional Shares to be purchased
by each Underwriter pursuant to the Pricing Agreement relating thereto, in the
form specified in such Pricing Agreement, and in such authorized denominations
and registered in such names as the Representatives may request upon at least
forty-eight hours' prior notice to the Company, shall be delivered by or on
behalf of the Company to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by certified or official bank check or checks, payable
to the order of the Company, or by wire transfer of funds, in the funds
specified in such Pricing Agreement, (i) with respect to the Firm Shares, all
in the manner and at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives and
the Company may agree upon in writing, such time and date being herein called
the "First Time of Delivery" and (ii) with respect to the Optional Shares, if
any, in the manner and at the time and date specified by the Representatives in
the written notice given by the Representatives of the Underwriters' election
to purchase such Optional Shares, or at such other time and date as the
Representatives and the Company may agree upon in writing, such time and date,
if not the First Time of Delivery, herein called the "Second Time of Delivery".
Each such time and date for delivery is herein called a "Time of Delivery".
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended or supplemented in relation to
the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under the
Act not later than the Commission's close of business on the second business
day following the execution and delivery of the Pricing Agreement relating to
the applicable Designated Securities or, if applicable, such earlier time as
may be required by Rule 424(b); to make no further amendment or any
supplement to the Registration Statement or Prospectus as amended or
supplemented after the date of the Pricing Agreement relating to such
Securities and prior to the Time of Delivery for such Securities that shall
be disapproved by the Representatives for such Securities promptly after
reasonable notice thereof; to advise the Representatives promptly of any such
amendment or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of such Securities, and during such same
period to advise the Representatives, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Prospectus or any
amended
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<PAGE> 8
Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use
of any prospectus relating to the Securities, of the suspension of the
qualification of such Securities for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or of
any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the Securities
or suspending any such qualification, to promptly use its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the Representatives
may reasonably request to qualify such Securities for offering and sale under
the securities laws of such jurisdictions as the Representatives may request
and to comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of such Securities, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus as amended
or supplemented in such quantities as the Representatives may from time to
time reasonably request, and, if the delivery of a prospectus is required at
any time in connection with the offering or sale of the Securities and if at
such time any event shall have occurred as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act,
the Exchange Act or the Trust Indenture Act, to notify the Representatives
and upon their request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus that will correct such
statement or omission or effect such compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c) under
the Act), an earnings statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Act and the rules
and regulations of the Commission thereunder (including, at the option of the
Company, Rule 158);
(e) During the period beginning from the date of the Pricing Agreement for
such Designated Securities and continuing to and including the later of (i)
the termination of trading restrictions for such Designated Securities, as
notified to the Company by the Representatives and (ii) the last Time of
Delivery for such Designated Securities, not to offer, sell, contract to sell
or otherwise dispose of any securities of the Company that are substantially
similar to such Designated Securities, without the prior written consent of
the Representatives;
(f) To use its best efforts to obtain prior to the Time of Delivery any
consents (which may be in the form of an amendment) required under the Credit
Agreement, dated December 27, 1995, as amended, by and among the Company,
Wells Fargo Bank, N.A., as agent, and the
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<PAGE> 9
banks listed on the signature pages thereto, for the consummation of the
transactions contemplated hereby and by the Pricing Agreement and the
application of the proceeds thereof as contemplated by the Prospectus; and
(g) To use its best efforts to list the Designated Securities on any stock
exchange or automated quotation system to the extent and in the manner set
forth in the Prospectus as amended or supplemented with respect to such
Designated Securities.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Pricing Agreement, any Deposit
Agreement, any Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Securities; (iii) all expenses
in connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 5(b) hereof, including the
fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and Legal Investment Surveys;
(iv) any fees charged by securities rating services for rating the Securities;
(v) any filing fees incident to, and the fees and disbursements of counsel for
the Underwriters in connection with, any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of any Depositary and any agent of any Depositary and the fees and
disbursements of counsel for any Depositary in connection with any Deposit
Agreement and the Securities; (viii) any fees and expenses in connection with
listing the Securities; and (ix) all other costs and expenses incident to the
performance of its obligations hereunder that are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 8 and 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company made, or
incorporated by reference, in the Pricing Agreement relating to such Designated
Securities are, at and as of each Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with
Section 5(a) hereof; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives' reasonable
satisfaction;
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<PAGE> 10
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated the Time of Delivery for such
Designated Securities, with respect to the matters covered in paragraphs (i),
(ii) (insofar as it relates to the Designated Securities),(vi), (viii), and
(xv) of subsection (c) below as well as such other related matters as the
Representatives may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) Davis, Graham & Stubbs LLP, counsel for the Company, shall have
furnished to the Representatives their written opinion, dated the Time of
Delivery for such Designated Securities, in form and substance satisfactory
to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus as amended or
supplemented;
(ii) The Company has an authorized capitalization as set forth in the
Prospectus as amended or supplemented and all of the issued shares of
capital stock of the Company (including the Designated Securities being
delivered at such Time of Delivery) have been duly and validly authorized
and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, except where the failure to
qualify and be in good standing would not have a material adverse effect
on the condition, financial or otherwise, or in the earnings or business
affairs of the Company and its subsidiaries considered as one enterprise
or the consummation of the transactions contemplated by this Agreement and
the Pricing Agreement related to the Designated Securities (a "Material
Adverse Effect") (such counsel being entitled to rely in respect of the
position in this clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the Company, provided
that such counsel shall state that they believe that both you and they are
justified in relying upon such opinions and certificates);
(iv) Each subsidiary of the Company has been duly organized or
incorporated and is validly existing as a partnership or corporation, as
the case may be, in good standing under the laws of its jurisdiction of
organization or incorporation; and except as set forth in the Prospectus
as amended or supplemented, and except for other non-material exceptions,
all of the issued shares of capital stock of each such subsidiary have
been duly and validly authorized and issued, are fully paid and
non-assessable, and are owned directly or indirectly by the Company, and
all partnership interests of each such subsidiary are owned directly or
indirectly by the Company, in each case free and clear of any perfected
security interest and, to the knowledge of such counsel, any other liens,
encumbrances, equities or claims (such counsel being entitled to rely in
respect of the opinion in this clause upon opinions of local counsel and
in respect of matters of fact upon certificates of officers of the Company
or its subsidiaries, provided that such counsel shall state that they
believe that both you and they are justified in relying upon such opinions
and certificates);
(v) To such counsel's knowledge and other than as set forth in the
Prospectus as amended or supplemented, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a
party or of which any property of the
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<PAGE> 11
Company or any of its subsidiaries is the subject that would reasonably be
expected, individually or in the aggregate, to have a Material Adverse
Effect; and, to such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(vi) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and delivered by
the Company;
(vii) [RESERVED.]
(viii) The Deposit Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; and the Depositary Shares included in the
Designated Securities have been duly issued thereunder;
(ix) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the Designated
Securities, the Deposit Agreement, this Agreement and the Pricing
Agreement with respect to the Designated Securities and the consummation
of the transactions herein and therein contemplated will not conflict with
or result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any material indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to such
counsel to which the Company is a party or by which the Company is bound
or to which any of the property or assets of the Company is subject,
except for such conflicts, breaches, violations or defaults that would not
have a Material Adverse Effect, nor will such actions result in any
violation of the provisions of the Certificate of Incorporation or By-laws
of the Company or any statute or any order, rule or regulation known to
such counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its properties;
(x) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Designated Securities or the
consummation by the Company of the transactions contemplated by this
Agreement or such Pricing Agreement, except such as have been obtained
under the Act and such consents, approvals, authorizations, orders,
registrations or qualifications as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the
Designated Securities by the Underwriters;
(xi) Neither the Company nor any of its subsidiaries is in violation
of its charter and by-laws or other organizational documents;
(xii) The statements set forth in the Prospectus as supplemented or
amended under the captions "Description of Preferred Stock", "Description
of Depositary Shares", "Certain Federal Income Tax Considerations" and
"Description of Series B Preferred Stock" insofar as they purport to
constitute a summary of the terms of the Securities, or insofar as they
purport to describe the provisions of the laws and documents referred to
therein, are correct in all material respects;
(xiii) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended;
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<PAGE> 12
(xiv) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and related
schedules and other financial and statistical data included or
incorporated by reference therein, as to which such counsel need express
no opinion), when they became effective or were filed with the Commission,
as the case may be, complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder; and nothing has come to such
counsel's attention that would lead it to believe that any of such
documents, when they became effective or were so filed, as the case may
be, contained, in the case of a registration statement which became
effective under the Act, an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or, in the case of other
documents which were filed under the Act or the Exchange Act with the
Commission, an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such documents
were so filed, not misleading; and
(xv) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made by
the Company prior to such Time of Delivery for the Designated Securities
(other than the financial statements and related schedules and other
financial or statistical data included or incorporated by reference
therein, as to which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the Act and the
rules and regulations thereunder; although they do not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus,
except for those referred to in the opinion in subsection (xii) of this
Section 7(c), nothing has come to such counsel's attention that would lead
it to believe that, as of its effective date, the Registration Statement
or any further amendment thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related schedules and
other financial or statistical data included or incorporated by reference
therein, as to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading or that, as of its date, the Prospectus as amended or
supplemented or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the financial
statements and related schedules and other financial or statistical data
included or incorporated by reference therein, as to which such counsel
need express no opinion) contained an untrue statement of a material fact
or omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading or that, as of such Time of Delivery, either the Registration
Statement or the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related schedules and
other financial or statistical data included or incorporated by reference
therein, as to which such counsel need express no opinion) contains an
untrue statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and they do not
know of any amendment to the Registration Statement required to be filed
or any contracts or other documents of a character required to be filed as
an exhibit to the Registration Statement or required to
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<PAGE> 13
be incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration Statement or
the Prospectus as amended or supplemented, in each case in accordance with
the Act or the Exchange Act, that are not filed or incorporated by
reference or described as required;
(d) Davis, Graham & Stubbs LLP, counsel to the Company, shall have
furnished to you their written opinion dated such Time of Delivery,
substantially in the form of Annex II hereto, with respect to certain tax
matters;
(e) On the date of the Pricing Agreement for such Designated Securities at
a time prior to the execution of the Pricing Agreement with respect to such
Designated Securities and at each Time of Delivery for such Designated
Securities, the independent accountants of the Company who have certified the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement shall have furnished
to the Representatives a letter, dated the effective date of the Registration
Statement or the date of the most recent report filed with the Commission
containing financial statements and incorporated by reference in the
Registration Statement, if the date of such report is later than such
effective date, and a letter dated such Time of Delivery, respectively, to
the effect set forth in Annex III hereto, and with respect to such letter
dated such Time of Delivery, as to such other matters as the Representatives
may reasonably request and in form and substance satisfactory to the
Representatives;
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus as amended or supplemented
prior to the date of the Pricing Agreement relating to the Designated
Securities any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Agreement relating to the
Designated Securities, and (ii) since the respective dates as of which
information is given in the Prospectus as amended or supplemented prior to
the date of the Pricing Agreement relating to the Designated Securities there
shall not have been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of operations
of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented prior to the date
of the Pricing Agreement relating to the Designated Securities, the effect of
which, in any such case described in Clause (i) or (ii), is in the judgment
of the Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus as first amended or supplemented relating to the Designated
Securities;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred stock (excluding the
Company's Psychiatric Group Preferred Stock) by any "nationally recognized
statistical rating organization", as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization
shall have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's debt
securities or preferred stock (excluding the Company's Psychiatric Group
Preferred Stock);
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<PAGE> 14
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following: (i)
a suspension or material limitation in trading in securities generally on the
New York Stock Exchange; (ii) a suspension or material limitation in trading
in the Company's securities on the New York Stock Exchange; (iii) a general
moratorium on commercial banking activities declared by either Federal or New
York State authorities; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event specified in this
Clause (iv) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus as first amended or supplemented relating to the Designated
Securities;
(i) The Company shall have furnished or caused to be furnished to the
Representatives at each Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and warranties of
the Company herein at and as of such Time of Delivery, as to the performance
by the Company of all of its obligations hereunder to be performed at or
prior to such Time of Delivery, as to the matters set forth in subsections
(a) and (f) of this Section and as to such other matters as the
Representatives may reasonably request;
(j) The Company shall have furnished to you an officers' certificate, in
form and substance satisfactory to you, to the effect that the Company and
its subsidiaries have good and marketable title to all real property owned by
them, in each case free and clear of all liens, encumbrances and defects
except such as are described in the Prospectus or such as do not materially
affect the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its subsidiaries; the
mortgages which the Company holds on the properties situated in Katonah,
Westchester County, New York, Saratoga Springs, Saratoga County, New York,
and Houston, Texas, are valid and binding and each constitutes a valid first
mortgage lien for the benefit of the Company on such property; and any real
property and buildings held under lease by the Company and its subsidiaries
are held by them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company and its
subsidiaries; and
(k) The Company shall have furnished or caused to be furnished to the
Representatives at each Time of Delivery for the Designated Securities
evidence satisfactory to the Representatives (i) that all required consents
specified in Section 5(f) have been obtained and (ii) that, to the extent
necessary before such Time of Delivery, procedures for the listing of the
Designated Securities as provided in Section 5(g) have been duly undertaken.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus
as amended or supplemented and any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any
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<PAGE> 15
such action or claim as such expenses are incurred; provided, however, that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any such amendment or
supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of Designated
Securities through the Representatives expressly for use in the Prospectus as
amended or supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact contained
in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any such amendment or supplement thereto, in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives expressly for use
therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
shall not relieve it from any liability that it may have to any indemnified
party otherwise than under such subsection. In case any such action shall be
brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes
an unconditional release of the indemnified party from all liability arising
- 15 -
<PAGE> 16
out of such action or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a)
or (b) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters of the
Designated Securities on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or action in
respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c)
above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and the Underwriters of the Designated Securities on
the other in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and such Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company bear
to the total underwriting discounts and commissions received by such
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such Underwriters on
the other and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the applicable Designated Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages
that such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The obligations of the
Underwriters of Designated Securities in this subsection (d) to contribute
are several in proportion to their respective underwriting obligations with
respect to such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability that the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 8 shall be in addition to any
liability that the
- 16 -
<PAGE> 17
respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Firm Shares or Optional Shares that it has agreed to purchase under the
Pricing Agreement relating to such Designated Securities, the Representatives
may in their discretion arrange for themselves or another party or other
parties to purchase such Designated Securities on the terms contained herein.
If within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Designated
Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Designated Securities on
such terms. In the event that, within the respective prescribed period, the
Representatives notify the Company that they have so arranged for the
purchase of such Designated Securities, or the Company notifies the
Representatives that it has so arranged for the purchase of such Designated
Securities, the Representatives or the Company shall have the right to
postpone the Time of Delivery for such Designated Securities for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments or supplements to the Registration
Statement or the Prospectus that in the opinion of the Representatives may
thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as
if such person had originally been a party to the Pricing Agreement with
respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Firm Shares or Optional Shares of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities that remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require
each non-defaulting Underwriter to purchase the number of Designated
Securities that such Underwriter agreed to purchase under the Pricing
Agreement relating to such Designated Securities and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities that such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Firm Shares or Optional Shares of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in subsection (a) above, the
aggregate number of Designated Securities that remains unpurchased exceeds
one-eleventh of the aggregate principal amount of the Designated Securities,
as referred to in subsection (b) above, or if the Company shall not exercise
the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Firm Shares or the
Over-Allotment Option relating to such Optional Shares, as the case may be,
shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be
borne by the Company and the Underwriters as provided in Section 6 hereof and
the indemnity and
- 17 -
<PAGE> 18
contribution agreements in Section 8 hereof; but nothing herein shall relieve
a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities.
11. If any Pricing Agreement or Over-Allotment Option shall be terminated
pursuant to Section 9 hereof, the Company shall not then be under any liability
to any Underwriter with respect to the Firm Shares or Option Shares covered by
such Pricing Agreement or Over-Allotment Option except as provided in Sections
6 and 8 hereof; but, if for any other reason Designated Securities are not
delivered by or on behalf of the Company as provided herein, the Company will
reimburse the Underwriters through the Representatives for all out-of-pocket
expenses approved in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Designated Securities,
but the Company shall then be under no further liability to any Underwriter
with respect to such Designated Securities except as provided in Sections 6 and
8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Representatives as set forth in
the Pricing Agreement; and if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set forth
in the Registration Statement: Attention: Secretary; provided, however, that
any notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered
or sent by mail, telex or facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire, or telex constituting
such Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used herein,
"business day" shall mean any day when the Commission's office in Washington,
D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
- 18 -
<PAGE> 19
16. This Agreement and each Pricing Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof.
Very truly yours,
American Health Properties, Inc.
By: /s/ Michael J. McGee
----------------------------
Name: Michael J. McGee
Title: Senior Vice President and
Chief Financial Officer
Accepted as of the date hereof:
Goldman, Sachs & Co.,
BT Alex. Brown Incorporated,
EVEREN Securities, Inc.,
Morgan Stanley & Co. Incorporated,
Paine Webber Incorporated
By: /s/ Goldman, Sachs & Co.
----------------------------
(Goldman, Sachs & Co.)
- 19 -
<PAGE> 20
ANNEX I
[This form of Pricing Agreement will be varied as needed
for each issuance of Designated Securities.]
PRICING AGREEMENT
Goldman, Sachs & Co.,
BT Alex. Brown Incorporated,
EVEREN Securities, Inc.,
Morgan Stanley & Co. Incorporated,
PaineWebber Incorporated,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
October , 1997
Ladies and Gentlemen:
American Health Properties, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated October , 1997 (the "Underwriting Agreement"),
between the Company on the one hand and you on the other hand, to issue and
sell to the Underwriters named in Schedule I hereto (the "Underwriters") the
Securities specified in Schedule II hereto (the "Designated Securities"). Each
of the provisions of the Underwriting Agreement is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this Agreement
to the same extent as if such provision had been set forth in full herein; and
each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Pricing Agreement, except that
each representation and warranty that refers to the Prospectus in Section 2 of
the Underwriting Agreement shall be deemed to be a representation or warranty
as of the date of the Underwriting Agreement in relation to the Prospectus (as
therein defined), and also a representation and warranty as of the date of this
Pricing Agreement in relation to the Prospectus as amended or supplemented
relating to the Designated Securities that are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the provisions
of the Underwriting Agreement so incorporated by reference shall be deemed to
refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives
designated to act on behalf of the Representatives and on behalf of each of the
Underwriters of the Designated Securities pursuant to Section 12 of the
Underwriting Agreement and the address of the Representatives referred to in
such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the Underwriting
Agreement incorporated herein by reference, the Company agrees to issue and
sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us seven counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement
<PAGE> 21
incorporated herein by reference, shall constitute a binding agreement between
each of the Underwriters and the Company. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is or will be
pursuant to the authority set forth in a form of Agreement among Underwriters,
the form of which shall be submitted to the Company for examination upon
request, but without warranty on the part of the Representatives as to the
authority of the signers thereof.
Very truly yours,
American Health Properties, Inc.
By:
----------------------------
Name: Michael J. McGee
Title: Senior Vice President and
Chief Financial Officer
Accepted as of the date hereof:
Goldman, Sachs & Co.
BT Alex. Brown Incorporated
EVEREN Securities, Inc.
Morgan Stanley & Co. Incorporated
PaineWebber Incorporated
By:
----------------------------
(Goldman, Sachs & Co.)
I-2
<PAGE> 22
SCHEDULE I
<TABLE>
<CAPTION>
NUMBER OF
DEPOSITARY SHARES
REPRESENTING
DESIGNATED
SECURITIES TO BE
UNDERWRITER PURCHASED
----------- ---------
<S> <C>
Goldman, Sachs & Co.
BT Alex. Brown Incorporated
EVEREN Securities, Inc.
Morgan Stanley & Co. Incorporated
PaineWebber Incorporated
---------
Total 4,000,000
=========
</TABLE>
I-3
<PAGE> 23
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
Depositary Shares, each representing 1/100 of a Share of ____% Cumulative
Redeemable Preferred Stock, Series B, of the Company
AGGREGATE NUMBER OF DESIGNATED SECURITIES:
4,000,000 Depositary Shares
(These are all Firm Shares and there are no Optional Shares in this
transaction.)
PRICE TO PUBLIC:
$25.00 per Depositary Share, plus accrued dividends, if any, from the date of
original issue.
PURCHASE PRICE BY UNDERWRITERS:
$_____ per Depositary Share, plus accrued dividends, if any, from the date of
original issue.
FORM OF DESIGNATED SECURITIES:
Book-entry only form represented by one or more global securities deposited
with The Depository Trust Company ("DTC") or its designated custodian, to be
made available for checking by the Representatives at least twenty-four hours
prior to the Time of Delivery at the office of DTC or its designated
custodian.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Immediately available funds
TIME OF DELIVERY:
10:00 a.m. (New York City time), on ________, 1997
DEPOSITARY:
ChaseMellon Shareholder Services, LLC
DEPOSIT AGREEMENT:
Dated __________, 1997.
DIVIDEND RATE:
____% per annum
DIVIDEND PAYMENT DATES:
On or about last day of January, April, July and October, commencing in
January 1998
I-4
<PAGE> 24
REDEMPTION PROVISIONS:
Redeemable on or after ________, 2002 at the election of the Company, in
whole or in part, at a redemption price equal to $25.00 per Depositary Share,
plus accrued and unpaid dividends, as more fully specified in the Prospectus
as amended or supplemented relating to the Designated Securities.
LIQUIDATION PREFERENCE:
$25.00 per Depositary Share, plus accrued and unpaid dividends.
SINKING FUND PROVISIONS OR MANDATORY REDEMPTION:
None
CONVERSION PROVISIONS:
None
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
The Closing will take place at Davis, Graham & Stubbs LLP, Denver, Colorado.
The Designated Securities will be delivered to DTC or its designated custodian.
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives, as referred to in Section 12 of the Underwriting
Agreement:
Goldman, Sachs & Co.
Address for Notices, etc.:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004.
I-5
<PAGE> 25
ANNEX II
FORM OF DAVIS, GRAHAM & STUBBS TAX OPINION
------------------------------------------
-- to be provided by DGS
[See form of opinion from January 1997]
<PAGE> 26
ANNEX III
Pursuant to Section 7(e) of the Underwriting Agreement, the accountants shall
furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the Act and the applicable
published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules audited (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder; and, if applicable,
they have made a review in accordance with standards established by the
American Institute of Certified Public Accountants of the consolidated
interim financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports thereon, copies of
which have been separately furnished to the representative or representatives
of the Underwriters (the "Representatives") such term to include an
Underwriter or Underwriters who act without any firm being designated as its
or their representatives;
(iii) They have made a review in accordance with standards established by
the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus and/or
included in the Company's quarterly report on Form 10-Q incorporated by
reference into the Prospectus as indicated in their reports thereon copies of
which have been separately furnished to the Representatives; and on the basis
of specified procedures including inquiries of officials of the Company who
have responsibility for financial and accounting matters regarding whether
the unaudited condensed consolidated financial statements referred to in
paragraph (v)(A)(i) below comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and the
related published rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed consolidated financial
statements do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and the
related published rules and regulations;
(iv) They have compared the information in the Prospectus under selected
captions with the disclosure requirements of Regulation S-K and on the basis
of limited procedures specified in such letter nothing came to their
attention as a result of the foregoing procedures that caused them to believe
that this information does not conform in all material respects with the
disclosure requirements of Items 301, 302, 402 and 503(d), respectively, of
Regulation S-K;
(v) On the basis of limited procedures, not constituting an examination in
accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information referred
to below, a reading of the latest available interim financial statements of
the Company and its subsidiaries, inspection of the minute books of the
Company and its subsidiaries since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus, inquiries
of officials of the Company and its subsidiaries responsible for financial
and accounting matters and such other inquiries
III-1
<PAGE> 27
and procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included or incorporated by reference in
the Company's Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the related
published rules and regulations, or (ii) any material modifications should
be made to the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus or included in the Company's Quarterly Reports
on Form 10-Q incorporated by reference in the Prospectus for them to be in
conformity with generally accepted accounting principles;
(B) any unaudited pro forma consolidated condensed financial statements
included or incorporated by reference in the Prospectus do not comply as
to form in all material respects with the applicable accounting
requirements of the Act and the published rules and regulations thereunder
or the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(C) as of a specified date not more than five days prior to the date of
such letter, there have been any changes in the consolidated capital stock
(other than issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were outstanding
on the date of the latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in the consolidated long-term
debt of the Company and its subsidiaries, or any decreases in consolidated
net assets or stockholders' equity or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in the latest
balance sheet included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are described in
such letter; and
(D) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the specified
date referred to in Clause (C) there were any decreases in consolidated
net revenues or the total or per share amounts of consolidated net income
or other items specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in each case
for increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(vi) In addition to the audit referred to in their report(s) included or
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (v) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and
financial information specified by the Representatives which are derived from
the general accounting records of the Company and its subsidiaries, which
appear in the Prospectus (excluding documents incorporated by reference), or
in Part II of, or in exhibits and schedules to, the Registration Statement
specified
III-2
<PAGE> 28
by the Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain of
such amounts, percentages and financial information with the accounting
records of the Company and its subsidiaries and have found them to be in
agreement.
All references in this Annex II to the Prospectus shall be deemed to refer to
the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at each Time of Delivery for such Designated
Securities.
III-3
<PAGE> 1
CONFORMED COPY
PRICING AGREEMENT
Goldman, Sachs & Co.,
BT Alex. Brown Incorporated,
EVEREN Securities, Inc.,
Morgan Stanley & Co. Incorporated,
PaineWebber Incorporated,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
October 22, 1997
Ladies and Gentlemen:
American Health Properties, Inc., a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated October 22, 1997 (the "Underwriting
Agreement"), between the Company on the one hand and you on the other hand, to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the "Designated
Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provision had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty that refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities that are the
subject of this Pricing Agreement. Each reference to the Representatives
herein and in the provisions of the Underwriting Agreement so incorporated by
reference shall be deemed to refer to you. Unless otherwise defined herein,
terms defined in the Underwriting Agreement are used herein as therein defined.
The Representatives designated to act on behalf of the Representatives and on
behalf of each of the Underwriters of the Designated Securities pursuant to
Section 12 of the Underwriting Agreement and the address of the Representatives
referred to in such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, (a) the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at the purchase price to the Underwriters set forth in Schedule
II hereto, the number of Firm Shares set forth opposite
<PAGE> 2
the name of such Underwriter in Schedule I hereto and, (b) in the event and to
the extent that the Underwriters shall exercise the election to purchase
Optional Shares, as provided below, the Company agrees to issue and sell to
each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company at the purchase price to the
Underwriters set forth in Schedule II hereto that portion of the number of
Optional Shares as to which such election shall have been exercised.
The Company hereby grants to each of the Underwriters the right to
purchase at their election up to the number of Optional Shares set forth
opposite the name of such Underwriter in Schedule I hereto on the terms
referred to in the paragraph above for the sole purpose of covering
over-allotments in the sale of the Firm Shares. Any such election to purchase
Optional Shares may be exercised by written notice from the Representatives to
the Company given within a period of 30 calendar days after the date of this
Pricing Agreement, setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be delivered, as
determined by the Representatives, but in no event earlier than the First Time
of Delivery or, unless the Representatives and the Company otherwise agree in
writing, no earlier than two or later than ten business days after the date of
such notice.
If the foregoing is in accordance with your understanding, please sign
and return to us seven counterparts hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination upon request, but
without warranty on the part of the Representatives as to the authority of the
signers thereof.
Very truly yours,
American Health Properties, Inc.
By: /s/ Michael J. McGee
-------------------------------------
Name: Michael J. McGee
Title: Senior Vice President and
Chief Financial Officer
Accepted as of the date hereof:
Goldman, Sachs & Co.
BT Alex. Brown Incorporated
EVEREN Securities, Inc.
Morgan Stanley & Co. Incorporated
PaineWebber Incorporated
By: /s/ Goldman, Sachs & Co.
---------------------------------
(Goldman, Sachs & Co.)
- 2 -
<PAGE> 3
SCHEDULE I
<TABLE>
<CAPTION>
MAXIMUM
NUMBER OF
OPTIONAL
NUMBER OF SHARES
FIRM SHARES WHICH MAY
TO BE BE
UNDERWRITER PURCHASED PURCHASED
----------- ----------- ---------
<S> <C> <C>
Goldman, Sachs & Co. 560,000 84,000
BT Alex. Brown Incorporated 560,000 84,000
EVEREN Securities, Inc. 560,000 84,000
Morgan Stanley & Co. Incorporated 560,000 84,000
PaineWebber Incorporated 560,000 84,000
Bear, Stearns & Co. Inc. 60,000 9,000
Donaldson, Lufkin & Jenrette Securities 60,000 9,000
A.G. Edwards & Sons, Inc. 60,000 9,000
Legg Mason Wood Walker Incorporated 60,000 9,000
NationsBanc Montgomery Securities, Inc. 60,000 9,000
Oppenheimer & Co., Inc. 60,000 9,000
Prudential Securities Incorporated 60,000 9,000
Schroder & Co. Inc. 60,000 9,000
Wheat First Butcher Singer 60,000 9,000
Advest, Inc. 30,000 4,500
J.C. Bradford & Co. 30,000 4,500
Cowen & Company 30,000 4,500
Crowell, Weedon & Co. 30,000 4,500
Dain Bosworth Incorporated 30,000 4,500
Fahnestock & Co. Inc. 30,000 4,500
Interstate/Johnson Lane Corporation 30,000 4,500
McDonald & Company Securities, Inc. 30,000 4,500
McGinn, Smith & Co., Inc. 30,000 4,500
Morgan Keegan & Company, Inc. 30,000 4,500
The Ohio Company 30,000 4,500
</TABLE>
- 3 -
<PAGE> 4
<TABLE>
<CAPTION>
MAXIMUM
NUMBER OF
OPTIONAL
NUMBER OF SHARES
FIRM SHARES WHICH MAY
TO BE BE
UNDERWRITER PURCHASED PURCHASED
----------- ----------- ---------
<S> <C> <C>
Piper Jaffray Inc. 30,000 4,500
Principal Financial Securities, Inc. 30,000 4,500
Rauscher Pierce Refsnes, Inc. 30,000 4,500
Raymond James & Associates, Inc. 30,000 4,500
The Robinson-Humphrey Company, LLC 30,000 4,500
Roney & Co., L.L.C. 30,000 4,500
Sutro & Co. Incorporated 30,000 4,500
Trilon International Inc. 30,000 4,500
Tucker Anthony Incorporated 30,000 4,500
U.S. Clearing Corp. 30,000 4,500
Wedbush Morgan Securities Inc. 30,000 4,500
---------- --------
Total 4,000,000 600,000
========== ========
</TABLE>
The numbers of Firm Shares and of Optional Shares represent numbers of
Depositary Shares.
- 4 -
<PAGE> 5
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
Depositary Shares, each representing 1/100 of a Share of 8.60%
Cumulative Redeemable Preferred Stock, Series B, of the Company
NUMBER OF DESIGNATED SECURITIES:
Number of Firm Shares: 4,000,000 Depositary Shares
Maximum Number of Optional Shares: 600,000 Depositary Shares
PRICE TO PUBLIC:
$25.00 per Depositary Share, plus accrued dividends, if any, from the
date of original issue.
PURCHASE PRICE BY UNDERWRITERS:
$24.2125 per Depositary Share, plus accrued dividends, if any, from
the date of original issue.
FORM OF DESIGNATED SECURITIES:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office
of DTC or its designated custodian.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Immediately available funds
FIRST TIME OF DELIVERY:
10:00 a.m. (New York City time), on October 27, 1997
DEPOSITARY:
ChaseMellon Shareholder Services, LLC
DEPOSIT AGREEMENT:
Dated October 27, 1997.
DIVIDEND RATE:
8.60% per annum
- 5 -
<PAGE> 6
DIVIDEND PAYMENT DATES:
On or about last day of February, May, August and November, commencing
in November 1997
REDEMPTION PROVISIONS:
Redeemable on or after October 27, 2002 at the election of the
Company, in whole or in part, at a redemption price equal to $25.00
per Depositary Share, plus accrued and unpaid dividends, as more fully
specified in the Prospectus as amended or supplemented relating to the
Designated Securities.
LIQUIDATION PREFERENCE:
$25.00 per Depositary Share, plus accrued and unpaid dividends.
SINKING FUND PROVISIONS OR MANDATORY REDEMPTION:
None
CONVERSION PROVISIONS:
None
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
The Closing will take place at Davis, Graham & Stubbs LLP, Denver,
Colorado. The Designated Securities will be delivered to DTC or its
designated custodian.
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives, as referred to in Section 12 of the
Underwriting Agreement:
Goldman, Sachs & Co.
Address for Notices, etc.:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004.
- 6 -
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports dated March 24, 1997
included in American Health Properties, Inc.'s Form 10-K for the year ended
December 31, 1996, and to all references to our Firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
------------------------------------
ARTHUR ANDERSEN LLP
Denver, Colorado
October 17, 1997
