AMENDMENT NUMBER FOUR
AND WAIVER TO CREDIT AGREEMENT
This AMENDMENT NUMBER FOUR AND WAIVER TO CREDIT AGREEMENT, dated as of
December 10, 1996 (this "Amendment"), is entered into among NATIONWIDE HEALTH
PROPERTIES, INC., a Maryland corporation (the "Borrower"), the financial
institutions which are signatories to the Credit Agreement (each a "Bank" and,
collectively, the "Banks"), and ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as
agent for the Banks thereunder (in such capacity, the "Agent").
WHEREAS, the Borrower has requested that the Banks amend certain provisions
of the Credit Agreement to provide for, among other things, the reduction of
certain minimum amounts for Borrowings, conversions into or continuations of
Eurodollar Rate Portions, and optional prepayments.
WHEREAS, the Borrower has informed the Banks and the Agent that the Borrower
intends to enter into a transaction pursuant to which the Borrower will
acquire two (2) continuing care retirement community facilities located in Oak
Park, Illinois and Corpus Christi, Texas (the "Properties"), lease the
Properties to American Retirement Communities, L.P. ("ARC"), and make
renovations to the Corpus Christi, Texas Property, all as more particularly
described in a memorandum (the "Memorandum") from ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇
to the Borrower's Investment Committee, dated November 13, 1996, a true and
complete copy of which is attached hereto as Exhibit "A" (the transaction
substantially as described in the Memorandum is referred to herein as the
"Transaction");
WHEREAS, the Borrower has requested that the Banks and the Agent waive the
Borrower's compliance with certain covenants set forth in Section 9.4 of the
Credit Agreement in connection with the consummation of the Transaction; and
WHEREAS, on the terms and conditions contained herein, the Banks and the
Agent have agreed to amend such provisions of the Credit Agreement and to
waive the Borrower's compliance with certain covenants set forth in Section
9.4 of the Credit Agreement.
NOW, THEREFORE, in consideration of the above premises and the mutual
covenants, conditions, and provisions hereinafter set forth, the parties
hereto agree as follows:
ARTICLE 1
DEFINITIONS; CONSTRUCTION
1.1. Definitions for this Amendment. Any and all initially capitalized terms
used herein shall have the meanings ascribed thereto in the Credit Agreement
unless specifically defined herein. For purposes of this Amendment, the
following initially capitalized terms shall have the following meanings:
"Agent" shall have the meaning set forth in the introduction to this
Amendment.
"Amendment" means this Amendment Number Four and Waiver to Credit
Agreement among the Borrower, the Banks, and the Agent.
"Bank" and "Banks" shall have the respective meanings set forth in the
introduction to this Amendment.
"Borrower" shall have the meaning set forth in the introduction to this
Amendment.
"Credit Agreement" means that certain Credit Agreement, dated as of May
20, 1993, among the Borrower, the Banks, and the Agent, as amended by that
certain Amendment Number One to Credit Agreement dated as of April 28,
1994, that certain Amendment Number Two to Credit Agreement dated as of
July 11, 1995, and that certain Amendment Number Three to Credit Agreement
dated as of January 22, 1996.
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1.2. Construction. Unless the context of this Amendment clearly requires
otherwise, references to the plural include the singular, references to the
singular include the plural, the part includes the whole, the terms "include"
and "including" are not limiting, and the term "or" has the inclusive meaning
represented by the phrase "and/or".
ARTICLE 2
AMENDMENT OF CERTAIN PROVISIONS
OF THE CREDIT AGREEMENT
2.1 Amendment of Section 2.2(a) of the Credit Agreement. Section 2.2(a) of
the Credit Agreement is amended by deleting clause (C) therefrom in its
entirety and substituting therefor the following clause:
(C) the aggregate amount of the Borrowing, which (1) in the case of the
Base Rate Portions thereof shall be in the amount of $500,000 or a greater
amount which is an integral multiple of $100,000, and (2) in the case of
the Eurodollar Rate Portions thereof shall be in the amount of $2,000,000
or a greater amount which is an integral multiple of $100,000;
2.2 Amendment of Section 3.5(a) of the Credit Agreement. Section 3.5(a) of
the Credit Agreement is amended by deleting clause (C) therefrom in its
entirety and substituting therefor the following clause:
(C) the aggregate amount of the Loans that are the subject of such
continuation or conversion, which in the case of a conversion into or
continuation of Eurodollar Rate Portions shall be in the amount of
$2,000,000 or a greater amount which is an integral multiple of $100,000;
and
2.3 Amendment of Section 4.3 of the Credit Agreement. Section 4.3 of the
Credit Agreement is amended by deleting subsection (a) therefrom in its
entirety and substituting therefor the following subsection:
(a) Optional Prepayments. The Borrower may, upon at least one Business
Day's written notice to the Agent for Base Rate Portions and three
Eurodollar Business Days written notice to the Agent for Eurodollar Rate
Portions, prepay the outstanding amount of the Loans in whole or ratably in
part, without premium or penalty, subject to a Bank's right to make a
request for compensation as provided in Section 5.2. Partial prepayments of
Base Rate Portions shall be in an aggregate principal amount of at least
$500,000 or a greater amount which is an integral multiple of $100,000, and
partial prepayments of Eurodollar Rate Portions in each case shall be in an
aggregate principal amount of at least $2,000,000 or a greater amount which
is an integral multiple of $100,000.
ARTICLE 3
WAIVERS OF CERTAIN PROVISIONS
OF THE CREDIT AGREEMENT
3.1 Waiver of Section 9.4(f)(iii) of the Credit Agreement. The Banks hereby
agree to waive the Borrower's compliance with subsection (f)(iii) of Section
9.4 of the Credit Agreement in connection with the consummation of the
Transaction to the extent the Transaction includes the purchase of the
Properties for a consideration which exceeds $20,000,000; provided, however,
that such purchase consideration shall not exceed $27,000,000 (exclusive of
Borrower's transaction expenses).
3.2 Waiver of Section 9.4(g) of the Credit Agreement. The Banks hereby agree
to waive the Borrower's compliance with subsection (g) of Section 9.4 of the
Credit Agreement in connection with the consummation of the Transaction to the
extent the Transaction includes expenditures for fixed or capital assets in
connection with the renovation of the Corpus Christi, Texas Property;
provided, however, that such expenditures shall not exceed $14,000,000 in the
aggregate and shall be made, if at all, on or before December 31, 1998.
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ARTICLE 4
MISCELLANEOUS
4.1 Loan Documents. This Amendment shall be one of the Loan Documents.
4.2 Execution. This Amendment may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed an original. All
of such counterparts shall constitute but one and the same instrument.
Delivery of an executed counterpart of the signature pages of this Amendment
by telecopier shall be equally effective as delivery of a manually executed
counterpart. Any party delivering an executed counterpart of the signature
pages of this Amendment by telecopier shall thereafter also promptly deliver a
manually executed counterpart, but the failure to deliver such manually
executed counterpart shall not affect the validity, enforceability, and
binding effect of this Amendment.
4.3 Effectiveness. This Amendment shall be effective as of the date first
written above, when one or more counterparts hereof shall have been executed
by the Borrower, the Banks, and the Agent and shall have been delivered to the
Agent.
4.4 No Other Amendment. Except as expressly amended hereby and except with
respect to the specific waivers set forth in Article 3 hereof, the Credit
Agreement shall remain unchanged and in full force and effect. To the extent
any terms or provisions of this Amendment conflict with those of the Credit
Agreement, the terms and provisions of this Amendment shall control. This
Amendment shall be deemed a part of and is hereby incorporated in the Credit
Agreement.
4.5 Governing Law and Venue. THE VALIDITY OF THIS AMENDMENT, ITS
CONSTRUCTION, INTERPRETATION AND ENFORCEMENT, AND THE RIGHTS OF THE PARTIES
HERETO, SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF CALIFORNIA.
4.6 Definitive Agreements. Promptly after the consummation of the purchase
and leaseback portion of the Transaction, the Borrower shall deliver to the
Agent fully-executed copies of the definitive agreements entered into by the
Borrower, ARC and any other Persons in connection with such purchase and
leaseback, together with copies of such further documents relating to such
definitive agreements as are requested by the Agent. In addition, the Borrower
shall deliver to the Agent copies of such agreements, plans and other
documentation regarding the renovation of the Corpus Christi, Texas Property
as are requested by the Agent.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed and
delivered as of the date first above written.
▇▇▇▇▇ FARGO BANK, NATIONAL SANWA BANK CALIFORNIA
ASSOCIATION, in its individual
capacity and as Agent
By __________________________________ By __________________________________
Title: ______________________________ Title: ______________________________
THE SUMITOMO BANK, LIMITED BHF-BANK AKTIENGESELLSCHAFT
By __________________________________ By __________________________________
Title: ______________________________ Title: ______________________________
By __________________________________ By __________________________________
Title: ______________________________ Title: ______________________________
THE BANK OF NEW YORK
By __________________________________
Title: ______________________________
NATIONWIDE HEALTH PROPERTIES, INC.
By __________________________________
Title: ______________________________
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