EXHIBIT 10.2
ASSUMPTION AGREEMENT
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THIS ASSUMPTION AGREEMENT (this "Agreement") is dated as of May 28, 1998
among NATIONSBANK, N.A. ("NB"), XXXXX FARGO BANK, NATIONAL ASSOCIATION, ("WFB"),
THE BANK OF NEW YORK ("BNY") and SANWA BANK CALIFORNIA ("SBC", and together with
WFB and BNY, each a "Continuing Bank," and collectively, the "Continuing
Banks"), XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Agent for the Banks under
the Credit Agreement, as hereinafter defined (in such capacity, the "Agent"),
and NATIONWIDE HEALTH PROPERTIES, INC. ("Borrower").
WHEREAS, pursuant to that certain Withdrawal Agreement dated as of April 6,
1998, among BHF-Bank Aktiengesellschaft ("BHF"), Sumitomo Bank, Limited
("Sumitomo" and together with BHF, each a "Withdrawing Bank" and collectively,
the "Withdrawing Banks"), the Continuing Banks, Borrower and Agent (the
"Withdrawal Agreement"), the Withdrawing Banks withdrew from the credit facility
established by that certain Credit Agreement dated as of May 20, 1993 (as
amended, supplemented or restated from time to time, the "Credit Agreement")
among the Banks, Borrower, and Agent. Capitalized terms used but not defined in
this Agreement shall have the meanings as set forth in the Withdrawal Agreement
or in the Credit Agreement (in the event of a conflict between the Credit
Agreement and the Withdrawal Agreement, the Withdrawal Agreement shall control).
The Credit Agreement and all other agreements, documents and instruments
referred therein or delivered pursuant thereto are collectively called "Credit
Documents".
WHEREAS, after giving effect to the Withdrawal Agreement, the Total
Commitment under the Credit Agreement remained at $100,000,000; the amount of
the Total Commitment funded by the Continuing Banks was $76,000,000; and the
Unfunded Commitments Amount was the balance of the Total Commitment of
$24,000,000.
WHEREAS, NB desires to become a party to the Credit Agreement and to assume a
$24,000,000 portion of the Total Commitment, being the entire Unfunded
Commitment Amount.
WHEREAS, the Borrower, the Agent and the Continuing Banks desire to permit
the assumption by NB of a $24,000,000 Commitment under the Credit Agreement
pursuant to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the mutual agreements herein contained,
the parties hereto agree as follows:
1. Assignment.
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Effective on the Assignment Effective Date (as defined in Section 3 below),
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NB hereby assumes, without recourse, and without representation or warranty
(except as expressly provided in Section 6 below), the Assigned Share (as
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defined below), including without limitation those relating to the Commitment
and the Loans. The Assigned Share of all such rights, title, interest and
obligations is referred to collectively herein as the "Assigned Rights and
Obligations".
The "Assigned Share" means (a) a $24,000,000 portion of the aggregate Total
Commitment of $100,000,000 on the Assignment Effective Date under the Credit
Agreement, and (b) the aggregate amount of all Loans advanced by the Continuing
Banks and outstanding under the Credit Agreement on the Assignment Effective
Date to equalize on a pro rata basis the Loans among NB and the Continuing Banks
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(24.000000% being the Assigned Share of $24,000,000 divided by the total of the
funded Commitment of the Continuing Banks of $76,000,000 plus the Assigned Share
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of $24,000,000). The percentage of the aggregate Total Commitment represented
by the Assigned Shares shall equal the quotient of the above portion divided by
the aggregate Total Commitment on the Assignment Effective Date, expressed as a
percentage rounded to eight decimal places.
2. Assumption.
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Effective on the Assignment Effective Date, NB hereby accepts the foregoing
assignment of, and hereby assumes, the Assigned Rights and Obligations.
3. Effectiveness.
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This Agreement shall become effective on the funding date of May 29, 1998
(the "Assignment Effective Date").
4. Payments on Assignment Effective Date.
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In consideration of the assignment effected hereby to and the assumption by
NB of the Assigned Rights and Obligations, on the Assignment Effective Date: (a)
NB shall pay to the Agent for payment to each Continuing Bank the principal
amount of all Loans made by each Continuing Bank pursuant to the Credit
Agreement that are attributable to the Assigned Share and outstanding on the
Assignment Effective Date in the amounts set forth in column (7) below, and (b)
Agent shall pay to NB a commitment fee of $24,000.
Loans Advanced Loans Advanced Request by NB
% of Prior to after giving to Continuing
Total % of Funded Effectiveness of Effect to this Bank
Bank Commitment Commitment Commitment this Agreement Agreement (5)-(6)=(7)
(1) (2) (3) (4) (5) (6) (7)
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WFB $ 42,000,000 42.0% 42.000000% $ 9,505,263.18 $ 7,224,000.00 $2,281,263.17
BNY $ 15,000,000 15.0% 15.000000% $ 3,394,736.82 $ 2,580,000.00 $ 814,736.83
SBC $ 19,000,000 19.0% 19.000000% $ 4,300,000.00 $ 3,268,000.00 $1,032,000.00
NB $ 24,000,000 24.0% 24.000000% -0- $ 4,128,000.00 $4,128,000.00
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$100,000,000 100.0% 100% $17,200,000.00 $17,200,000.00 $8,256,000.00
5. Allocation and Payment of Interest and Fees.
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Agent shall pay to NB all interest, commitment fees and other amounts not
constituting principal that are paid by or on behalf of Borrower pursuant to the
Credit Documents and are attributable to the Assigned Rights and Obligations
("Borrower Amounts"), that accrue on and after the Assignment Effective Date.
If any Continuing Bank receives or collects any such Borrower Amounts, such
Continuing Bank shall promptly pay them to NB.
6. Representations and Warranties.
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(a) NB, each Continuing Bank, Agent and Borrower represents and warrants to
the other as follows:
(i) It has full power and authority, and has taken all action
necessary, to execute and deliver this Agreement and to fulfill its
obligations under, and to consummate the transactions contemplated by,
this Agreement;
(ii) The making and performance of this Agreement and all documents
required to be executed and delivered by it hereunder do not and will
not violate any law or regulation applicable to it;
(iii) This Agreement has been duly executed and delivered by it and
constitutes its legal, valid and binding obligation enforceable in
accordance with its terms; and
(iv) All approvals, authorizations or other actions by, or filings
with, any governmental authority necessary for the validity or
enforceability of its obligations under this Agreement have been made
or obtained.
(v) Agent agrees to forward to NB within 30 day of the Assignment
Effective Date a full set of the closing binders of the Credit
Documents and all amendments thereto.
(b) NB represents and warrants to Agent and the Continuing Banks as follows:
(i) NB has made and shall continue to make its own independent
investigation of the financial condition, affairs and creditworthiness
of Borrower and any other person or entity obligated under the Credit
Documents (collectively, "Credit Parties"), and the value of any
collateral now or hereafter securing any of the obligations,
indebtedness, liabilities or understandings under the Credit Documents
("Collateral"), in connection with its assumption of the Assigned
Rights and Obligations; and
(ii) NB has received a copy of the Credit Documents and such other
documents, financial statements and information as it has deemed
appropriate to make its own credit analysis and decision to enter into
this Agreement.
7. No Assignor Responsibility.
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The Agent and the Continuing Banks make no representation or warranty and
assume no responsibility to NB for:
(a) the execution, effectiveness, genuineness, validity, enforceability,
collectability or sufficiency of the Credit Documents or for any
representations, warranties, recitals or statements made in the Credit Documents
or in any financial or other written or oral statement, instrument, report,
certificate or any other document made or furnished or made available to NB by
or on behalf of any Credit Party in connection with the Credit Documents and the
transactions contemplated thereby;
(b) the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained in any of the Credit Documents or
as to the existence or possible existence of any default or event of default
under the Credit Documents; or
(c) the accuracy or completeness of any information provided to NB, whether
by a Continuing Bank or Agent, or by or on behalf of the Borrower.
Neither Agent not any Continuing Bank shall have any initial or continuing
duty or responsibility to make any investigation of the financial condition,
affairs or creditworthiness of the Borrower, or the value of any Collateral, in
connection with the assignment of the Assigned Rights and Obligations or to
provide NB with any credit or other information with respect thereto, whether
coming into its possession before the date hereof or at any time or times
thereafter except to the extent required under the Credit Documents.
8. NB Bound By Credit Agreement.
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Effective on the Assignment Effective Date, NB: (a) shall be deemed to be a
party to the Credit Agreement, (b) agrees to be bound by the Credit Agreement as
it would have been if it had been an original Bank party thereto, and (c) agrees
to perform in accordance with their terms all of the obligations which are
required under the Credit Documents to be performed by it as a Bank. NB
appoints and authorizes Agent to take such actions as agent on its behalf and to
exercise such powers under the Credit Documents as are delegated to Agent by the
terms thereof, together with such powers as are reasonably incidental thereto.
9. New Note.
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On or promptly after the Assignment Effective Date, Borrower, Agent and NB
shall make appropriate arrangements so that a new Note executed by Borrower,
dated the Assignment Effective Date and in the amount of the Commitment of NB,
after giving effect to this Agreement, is issued to NB.
10. General.
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(a) This Agreement constitutes the entire understanding of the parties with
respect to the subject matter hereof and supersedes all prior and current
understandings and agreements, whether written or oral (other than with respect
to any fees payable as provided in Section 4 hereof).
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(b) No term or provision of this Agreement may be amended, waived or
terminated orally, but only by an instrument signed by the parties hereto.
(c) This Agreement may be executed in one or more counterparts. Each set of
executed counterparts shall be an original. Executed counterparts may be
delivered by facsimile transmission.
(d) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. NB may not assign
or transfer any of its rights or obligations under this Agreement without the
prior written consent of the Agent except as provided in the Credit Documents.
(e) All payments to the Continuing Banks, Agent or NB hereunder shall, unless
otherwise specified by the party entitled thereto, be made in Dollars, in
immediately available funds, and to the address or account specified on the
signature pages of this Agreement. The address of NB for notice purposes under
the Credit Agreement shall be as specified on the signature pages of this
Agreement.
(f) If any provision of this Agreement is held invalid, illegal or
unenforceable, the remaining provisions hereof will not be affected or impaired
in any way.
(g) Each party shall bear its own expenses in connection with the preparation
and execution of this Agreement.
(h) This Agreement shall be governed by and construed in accordance with the
laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
NB: NATIONSBANK, N.A.
By:
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Printed Name: Xxxxxxx Xxxxx Xxxxxxxx
Title: Senior Vice President
NB's Notice Instructions:
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Xx. Xxxxx Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xx. Xxxxxxx Xxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
NB's Payment Instructions:
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NationsBank, N.A.
Charlotte
ABA No.000-000-000
Account No 136621-22506
Attention: Corporate Credit Services
Reference: Nationwide Health Properties
Telephone: ( )_____________________________
Facsimile: ( )_____________________________
ACKNOWLEDGED AND AGREED:
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BORROWER: NATIONWIDE HEALTH PROPERTIES, INC.
By:
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Printed Name:
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Title:
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AGENT: XXXXX FARGO BANK, N.A.
By:
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Printed Name: Xxxxxxx XxXxxxx
Title: Vice President
REMAINING BANKS:
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XXXXX FARGO BANK, NATIONAL ASSOCIATION
By:
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Printed Name: Xxxxxxx XxXxxxx
Title: Vice President
THE BANK OF NEW YORK
By:
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Printed Name:
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Title:
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SANWA BANK CALIFORNIA
By:
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Printed Name:
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Title:
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