EXHIBIT 10
EXECUTION
U.S. $500,000,000
FOURTH AMENDED AND RESTATED
REVOLVING LOAN AGREEMENT
among
HEALTH AND RETIREMENT PROPERTIES TRUST,
as Borrower,
THE LENDERS NAMED HEREIN,
DRESDNER KLEINWORT ▇▇▇▇▇▇ NORTH AMERICA LLC,
as Agent,
and
FLEET NATIONAL BANK,
as Administrative Agent
Dated as of April 2, 1998
TABLE OF CONTENTS
SECTION PAGE
SECTION 1.
DEFINITIONS..................................................................................................... 2
1.1. Defined Terms........................................................................................ 2
1.2. Other Definitional Provisions........................................................................ 28
1.3 Certain Calculations: ▇▇▇▇-to Market................................................................ 28
SECTION 2.
AMOUNT AND TERMS OF REVOLVING LOANS............................................................................. 29
2.1. Revolving Loans...................................................................................... 29
2.2. Notes; Maturity Date................................................................................. 31
2.3. Procedure for Borrowing.............................................................................. 31
2.4. Interest............................................................................................. 33
2.5. Duration of Interest Period; Notice of
Continuation/Conversion............................................................................ 34
2.6. Fees................................................................................................. 36
2.7. Termination or Reduction of Commitment............................................................... 36
2.8. Optional Prepayments; Mandatory Prepayments.......................................................... 36
2.9. Computation of Interest and Fees..................................................................... 38
2.10. Payments and Currency................................................................................ 38
2.11. Use of Proceeds...................................................................................... 40
2.12. Increased Costs...................................................................................... 40
2.13. Change in Law Rendering Eurocurrency Loans or Alternate
Rate Loans Unlawful; Failure to Give Notice of
Continuation......................................................................................... 43
2.14. Eurocurrency Availability............................................................................ 44
2.15. Indemnities.......................................................................................... 45
SECTION 3.
REPRESENTATIONS AND WARRANTIES.................................................................................. 46
3.1. Financial Condition.................................................................................. 46
3.2. No Material Adverse Effect........................................................................... 46
3.3. Existence; Compliance with Law....................................................................... 46
3.4. Tenant, Advisor, Credit Support Obligors; Compliance ...................................................
with Law............................................................................................. 47
3.5. Power; Authorization; Enforceable Obligations........................................................ 47
3.6. No Legal Bar......................................................................................... 48
3.7. No Material Litigation............................................................................... 48
3.8. No Default........................................................................................... 48
3.9. Ownership of Mortgage Interests and Property; Liens.................................................. 48
3.10. No Burdensome Restrictions........................................................................... 50
3.11. Taxes................................................................................................ 51
3.12. Federal Regulations.................................................................................. 51
3.13. Employees............................................................................................ 51
3.14. ERISA................................................................................................ 51
3.15. Status as REIT....................................................................................... 51
3.16. Restrictions on Incurring Indebtedness............................................................... 51
3.17. Subsidiaries......................................................................................... 52
3.18. Compliance with Environmental Laws................................................................... 52
3.19. Pollution; Hazardous Materials....................................................................... 52
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3.20. Securities Laws...................................................................................... 52
3.21. Declaration of Trust, By-Laws, Advisory Contract, etc................................................ 52
3.22. Disclosures.......................................................................................... 53
3.23. Certification........................................................................................ 53
3.24. Offering, Etc., of Securities........................................................................ 53
3.25. Addressing the Year 2000 Issue....................................................................... 53
SECTION 4.
CONDITIONS PRECEDENT............................................................................................ 53
4.1. Conditions to Effectiveness.......................................................................... 53
4.2. Conditions Precedent to Loans........................................................................ 55
SECTION 5.
AFFIRMATIVE COVENANTS........................................................................................... 56
5.1. Financial Statements................................................................................. 57
5.2. Certificates; Other Information...................................................................... 58
5.3. Payment of Obligations............................................................................... 59
5.4. Conduct of Business and Maintenance of Existence..................................................... 59
5.5. Leases and Mortgage Interests; Credit Support Agreements............................................. 59
5.6. Maintenance of Property, Insurance................................................................... 60
5.7. Inspection of Property; Books and Records; Discussions............................................... 60
5.8. Notices.............................................................................................. 60
5.9. Appraisals and Other Valuations...................................................................... 61
5.10. Meetings............................................................................................. 61
5.11. REIT Requirements.................................................................................... 62
5.12. Indemnification...................................................................................... 62
5.13. Changes in GAAP...................................................................................... 62
5.14. Restrictions on Negative Pledges..................................................................... 63
5.15. Currency Arrangements..................................................................................... 63
5.16. Year 2000............................................................................................ 63
SECTION 6.
NEGATIVE COVENANTS.............................................................................................. 64
6.1. Financial Covenants.................................................................................. 64
6.2. Restricted Payments.................................................................................. 64
6.3. Merger; Sale of Assets; Termination and Other Actions................................................ 64
6.4. Transactions with Affiliates......................................................................... 65
6.5. Subsidiaries......................................................................................... 65
6.6. Accounting Changes................................................................................... 65
6.7. Change in Nature of Business; Location of
Property Interests............................................................................ 65
6.8. Indebtedness......................................................................................... 66
6.9. No Liens............................................................................................. 66
6.10. Fiscal Year.......................................................................................... 66
6.11. Chief Executive Office............................................................................... 66
6.12. Amendment of Certain Agreements...................................................................... 67
6.13. Payments Not to Exceed Appraised Value............................................................... 67
SECTION 7.
EVENTS OF DEFAULT............................................................................................... 67
7.1. Events of Default.................................................................................... 67
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7.2. Annulment of Acceleration............................................................................ 70
7.3. Cooperation by Borrower.............................................................................. 70
SECTION 8.
THE AGENTS...................................................................................................... 70
8.1. Appointment of Agent and Administrative Agent........................................................ 70
SECTION 9.
SUBSIDIARY GUARANTIES........................................................................................... 74
9.1 Guaranties........................................................................................... 74
SECTION 10.
GENERAL..........................................................................................................76
10.1 Choice of Law........................................................................................ 76
10.2 Submission to Jurisdiction; Waiver of Jury Trial; etc................................................ 77
10.3 Notices; Certain Payments............................................................................ 78
10.4 No Waivers; Cumulative Remedies; Entire Agreement; Headings;
Successors and Assigns; Counterparts; Severability............................................ 79
10.5 Survival............................................................................................. 81
10.6 Amendments and Waivers............................................................................... 81
10.7 Payment of Expenses and Taxes........................................................................ 82
10.8 Adjustments; Setoff.................................................................................. 82
10.9 Nonliability of Trustees............................................................................. 84
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EXHIBITS
EXHIBIT A - FORM OF PROMISSORY NOTE
EXHIBIT B - FORM OF NOTICE OF BORROWING
EXHIBIT C - FORM OF NOTICE OF
CONTINUATION/CONVERSION
EXHIBIT D - FORM OF SUBORDINATION AGREEMENT
EXHIBIT E - FORM OF ASSIGNMENT AGREEMENT
SCHEDULES
Schedule 1 - LENDERS' COMMITMENTS AND CERTAIN
LENDING OFFICES
Schedule 2 - PERMITTED EXCEPTIONS
Schedule 3 - AMOUNTS OWED UNDER THE EXISTING
LOAN AGREEMENT
Schedule 4 - BORROWER'S SUBSIDIARIES
Schedule 5 - MANDATORY LIQUID ASSET COSTS (FOR
GBP LOANS)
Schedule 6 - NON-CURRENT MORTGAGE INTEREST
AGREEMENTS
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HEALTH AND RETIREMENT PROPERTIES TRUST
FOURTH AMENDED AND RESTATED REVOLVING LOAN AGREEMENT
DATED AS OF APRIL 2, 1998
This FOURTH AMENDED AND RESTATED REVOLVING LOAN AGREEMENT is
dated as of April 2, 1998, among HEALTH AND RETIREMENT PROPERTIES TRUST, a real
estate investment trust formed under the laws of the State of Maryland
("Borrower"), the several lenders parties to this Agreement (each, together with
any additional lender or lenders pursuant to Section 10.4, a "Lender" and,
collectively, the "Lenders"), DRESDNER KLEINWORT ▇▇▇▇▇▇ NORTH AMERICA LLC, a
limited liability company organized under the laws of Delaware, as agent for
itself and the other Lenders (in such capacity, together with any successor in
such capacity in accordance with the terms hereof, "Agent"), and FLEET NATIONAL
BANK (as successor to Fleet Bank of Massachusetts), a bank organized under the
laws of the United States of America, as Administrative Agent (as defined
below); and, in connection with Section 9 and the guaranties given therein,
HEALTH AND RETIREMENT PROPERTIES INTERNATIONAL, INC., a Delaware corporation and
a direct wholly-owned Subsidiary (as defined below) of Borrower, CAUSEWAY
HOLDINGS INC. and CHURCH CREEK CORPORATION, each of which is a Massachusetts
corporation and a direct wholly-owned Subsidiary of Borrower, HUB PROPERTIES
TRUST, HUB ACQUISITION TRUST, HUB LA PROPERTIES TRUST, HUB RI PROPERTIES TRUST
and HUB WOODMONT INVESTMENT TRUST, each of which is a Maryland real estate
investment trust and a direct wholly-owned Subsidiary of Borrower, HUB REALTY
FUNDING, INC., HUB MANAGEMENT, INC., HUB REALTY COLLEGE PARK, INC., HUB REALTY
KANSAS CITY, INC., HUB REALTY GOLDEN, INC., and INDEMNITY COLLECTION
CORPORATION, each of which is a Delaware corporation and a wholly-owned
Subsidiary of Borrower, HUB REALTY COLLEGE PARK I, LLC, a Maryland limited
liability company and a wholly-owned Subsidiary of Borrower, and HUB LA LIMITED
PARTNERSHIP, a Delaware limited partnership and a Subsidiary of Borrower, and
HUB WOODMONT LLC, a Delaware limited liability company and a Subsidiary of
Borrower.
WHEREAS, inter alia, Borrower, Dresdner Kleinwort ▇▇▇▇▇▇ North
America LLC, as agent, Fleet National Bank, as administrative agent, Health and
Retirement Properties International, Inc., as guarantor, and the lenders
described therein are parties to that certain Third Amended and Restated
Revolving Loan Agreement dated as of March 15, 1996 (as such agreement may have
been amended, supplemented or modified from time to time prior to the date
hereof, the "Existing Loan Agreement");
WHEREAS, Borrower and Lenders wish to extend the maturity date
under the Existing Loan Agreement, increase the amount
available thereunder, make certain other amendments to the Existing Loan
Agreement and amend and restate it in its entirety.
NOW, THEREFORE, the parties hereto hereby agree that the
Existing Loan Agreement be amended and restated in its entirety as follows:
SECTION 1.DEFINITIONS
1.1. Defined Terms. As used in this Agreement:
"Adjusted Net Interest" means, in respect of a Mortgaged
Property that consists of an Office Asset or a Clinic, the net result of (i)
aggregate interest payments made by the Mortgagor of the relevant Mortgaged
Property during the relevant period of determination less (ii) direct costs of
the Borrower attributable to such Mortgaged Property for such period; provided
that if either (y) the Mortgagor of the relevant Mortgaged Property is in
default under any payment obligation or in any material respect under any other
Contractual Obligation between such Mortgagor and Borrower or any of its
Subsidiaries, including without limitation the Mortgage Interest Agreement
related to such Mortgaged Property, any other Mortgage Interest Agreement or any
Lease or (z) a Credit Support Obligor for the Mortgage Interest Agreement of
such Mortgaged Property is in default under any payment obligation or in any
material respect under any other Contractual Obligation of such Credit Support
Obligor to Borrower or any of its Subsidiaries, including without limitation any
Lease, Mortgage Interest, Mortgage Interest Agreement or Credit Support
Agreement, the interest payments made by the Mortgagor referred to in the
preceding clause (y) and the interest payments made in respect of the Mortgaged
Property referred to in the preceding clause (z) during the relevant period of
determination shall not be included in Adjusted Net Interest.
"Adjusted Net Operating Cash Flow" means, in respect of a
Property that is an Office Asset, a Clinic or a Government Property Asset, the
net result of (i) aggregate lease payments made by the Tenant(s) of the relevant
Property during the relevant period of determination, less (ii) direct costs of
the Borrower or its Subsidiaries attributable to such Property for such period;
provided that if either (x) a Tenant of the relevant Property has failed to
exercise a renewal option under the Lease thereof prior to the expiration of
that option (and no replacement Lease with that or another Tenant has been
signed and the term of such Lease expires prior to the Termination Date), or (y)
a Tenant of the relevant Property is in default under any payment obligation or
in any material respect under any other Contractual Obligation between
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such Tenant and Borrower or any of its Subsidiaries, including without
limitation such Lease, any other Lease or any Mortgage Interest Agreement, or
(z) a Credit Support Obligor for the Lease of such Property is in default under
any payment obligation or in any material respect under any other Contractual
Obligation of such Credit Support Obligor to Borrower or any of its
Subsidiaries, including without limitation any Lease, Mortgage Interest,
Mortgage Interest Agreement or Credit Support Agreement, the lease payments made
by the Tenant referred to in the preceding clause (x) or (y) and the lease
payments made in respect of the Property referred to in the preceding clause (z)
during the relevant period of determination shall not be included in Adjusted
Net Operating Cash Flow.
"Administrative Agent" means Fleet acting in its capacity as
administrative agent in connection with this Agreement; provided that with
respect to Loans denominated in GBP, "Administrative Agent" shall mean a Lender
(the "GBP Agent") agreed to by Borrower, Agent and Fleet and, in such
circumstances, references to "Administrative Agent" relating to Loans
denominated in GBP shall be read as references to the GBP Agent, while
references to "Administrative Agent" relating to Loans denominated in U.S.
Dollars or otherwise shall be read as references to Fleet, and if such
circumstances are applicable the singular term "Administrative Agent" shall be
construed to include both Fleet and the GBP Agent where appropriate (including,
without limitation, for purposes of the indemnifications given in Sections 8 and
10.7); and, in addition, "Administrative Agent" shall mean any successor to
either Fleet or the GBP Agent in their respective capacities in accordance with
the terms hereof; provided further that in no event shall Fleet be or be deemed
to be the GBP Agent or have any of its related duties unless Fleet expressly
accepts such role.
"Advisor" means RMR or such other Person as shall act as an
advisor to Borrower, whether pursuant to the Advisory Agreement, or an agreement
analogous to the Advisory Agreement, with the prior written consent of Agent.
"Advisory Agreement" means the RMR Advisory Agreement, dated
as of January 1, 1998, between Borrower and RMR, as amended, supplemented or
modified from time to time in a manner not inconsistent with the terms hereof or
of the Subordination Agreement.
"Affiliate" means, with respect to a particular Person, (a)
any Person which, directly or indirectly, is in Control of, is Controlled by, or
is under common Control with such particular Person, or (b) any Person who is a
director or officer or trustee (i) of such particular Person, (ii) of any
Subsidiary of such particular Person or (iii) of any Person described in clause
(a) above.
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"Agreement" means this Fourth Amended and Restated Revolving
Loan Agreement, as amended, supplemented or modified from time to time in
accordance herewith.
"Allowed Value" means, as of any date of determination:
(i) with respect to each Eligible Property or Property (as the
context may require), the lesser of (a) the sum of the (x) lesser of
(1) the Appraised Value of such Eligible Property or Property as set
forth in the then most recent Appraisal with respect to such Eligible
Property or Property and (2) the acquisition cost to Borrower or to any
of its Subsidiaries of such Eligible Property or Property and (y) the
cost of improvements funded by the Borrower or any of its Subsidiaries
since the date of such acquisition of such Eligible Property or, if
applicable, such Appraisal, and (b) if applicable, the minimum purchase
price (howsoever denominated) that would be payable to Borrower or such
Subsidiary by the Tenant of such Eligible Property or Property or any
other Person if it purchased such Eligible Property or Property on the
date of determination pursuant to the exercise of any right it may have
(whether then or in the future exercisable) to purchase such Eligible
Property or Property (assuming in the case of any such right only
exercisable in the future that such right is exercisable on the date of
determination); and
(ii) with respect to each Eligible Mortgage or Mortgage
Interest (as the context may require), the lesser of (a) the
outstanding principal amount due to Borrower or any of its Subsidiaries
from the relevant Mortgagor in respect of such Eligible Mortgage or
Mortgage Interest, and (b) the Appraised Value of the Mortgaged
Property which is covered by the relevant Eligible Mortgage or Mortgage
Interest as set forth in the most recent Appraisal with respect to such
Eligible Mortgage or Mortgaged Property.
"Alternate GBP Rate" means the interest rate per annum
specified by Administrative Agent from time to time as the cost to Lenders of
funding affected Loans denominated in GBP as described in Section 2.13 or 2.14
(without reference to the Applicable Margin or the Mandatory Liquid Asset Costs
payable under Section 2.4(a)).
"Alternate GBP Rate Loans" means the portion of Loans (which
are denominated in GBP) the interest on which is computed by reference to the
Alternate GBP Rate.
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"Alternate Rate", in respect of any Loan, means the rate or
rates of interest agreed pursuant to Section 2.13 or 2.14, as the case may be,
between Borrower and Lenders to be applicable to such Loan; provided that in the
absence of such agreement under the circumstances specified in Section 2.13 or
2.14, as the case may be, the Alternate Rate shall be equal to the Base Rate in
the case of Loans denominated in U.S. Dollars and shall be equal to the
Alternate GBP Rate in the case of Loans denominated in GBP.
"Alternate Rate Loans" means the portion of the Loans (which
may be denominated in U.S. Dollars or in GBP) the interest on which is computed
by reference to the Alternate Rate.
"Applicable Facility Fee Percentage" means with respect to the
facility fee payable under Section 2.6, the per annum percentage corresponding
to the lowest of the ratings provided by Standard & Poor's Rating Group, Fitch
Investors Service, Inc. and ▇▇▇▇▇'▇ Investors Service in respect of the senior
unsecured long-term indebtedness of Borrower, as specified in the following
table:
A-/A3 Lower
Ratings or BBB+/Baa BBB/Baa2 BBB-/Baa3 than
higher 1 or or higher BBB-
or higher /Baa3
higher
Facility Fee 0.200% 0.250% 0.250% 0.250% 0.375%
Each change in the Applicable Facility Fee Percentage shall be
effective as of the date of the public announcement or publication by Standard &
Poor's Ratings Group, Fitch Investors Service, Inc. or ▇▇▇▇▇'▇ Investors
Service, as the case may be, of a change in Borrower's senior unsecured
long-term indebtedness ratings.
"Applicable Margin" means, with respect to Base Rate Loans,
Alternate Rate Loans and Eurocurrency Loans, the per annum percentage
corresponding to the lowest of the ratings provided by Standard & Poor's Ratings
Group, Fitch Investors Service, Inc. and ▇▇▇▇▇'▇ Investors Service in respect of
the senior unsecured long-term indebtedness of Borrower, as specified in the
following table:
-▇-
▇-/▇▇ Lower
Ratings or BBB+/Baa BBB/Baa2 BBB-/Baa3 than
higher 1 or or higher BBB-
or higher /Baa3
higher
Applicable 0.000% 0.000% 0.000% 0.000% 0.250%
Margin for
Base Rate
Loans or for
Alternate
Rate Loans
that are Base
Rate Loans
Applicable 0.375% 0.500% 0.750% 0.875% 1.250%
Margin for
Eurocurrency
Loans or
Alternate
Rate Loans
that are not
Base Rate
Loans
Each change in the Applicable Margin shall be effective as of
the date of the public announcement or publication by Standard & Poor's Ratings
Group, Fitch Investors Service, Inc. or ▇▇▇▇▇'▇ Investors Service, as the case
may be, of a change in Borrower's senior unsecured long-term indebtedness
ratings.
"Appraisal" means an appraisal using methodologies acceptable
to Agent and Administrative Agent at the time such appraisal is or was made and
performed by a Recognized Appraiser.
"Appraised Value" of any Property shall mean (a) in the case
of any Fee Interest, the lesser of (i) the value placed upon such Property
pursuant to the most recent Appraisal thereof based on a valuation of the Fee
Interest subject to the Lease(s) in respect of such Fee Interest and (ii) the
value placed upon such Property pursuant to the most recent Appraisal thereof
based on a valuation of the Fee Interest free and clear of all Leases and
determined by discounting to present value the Property's future projected net
cash flow; provided that in the case where the most recent Appraisal only values
the Fee Interest under either subclause (i) or subclause (ii) of this clause (a)
but not both, the Appraised Value shall mean the value so placed on the Fee
Interest under either subclause (i) or subclause (ii) of this clause (a),
whichever is applicable; (b) in the case of a Leasehold
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Interest, the lesser of (i) the value placed upon such Property pursuant to the
most recent Appraisal thereof based on a valuation of the Leasehold Interest
subject to the Lease(s) in respect of such Leasehold Interest and (ii) the value
placed upon such Property pursuant to the most recent Appraisal thereof based on
a valuation of the Leasehold Interest free and clear of all Leases and
determined by discounting to present value the Property's future projected net
cash flow; provided that in the case where the most recent Appraisal only values
the Leasehold Interest under either subclause (i) or subclause (ii) of this
clause (b) but not both, the Appraised Value shall mean the value so placed on
the Leasehold Interest under either subclause (i) or subclause (ii) of this
clause (b), whichever is applicable; and (c) in the case of a Mortgage Interest,
the value placed upon the Mortgaged Property covered by such Mortgage Interest
pursuant to the most recent Appraisal thereof based on a valuation of such
Mortgaged Property free and clear of such Mortgage Interest and determined by
discounting to present value the future projected net cash flow of such
Mortgaged Property.
"Assignment Agreement" means an Assignment Agreement in
substantially the form of Exhibit E hereto.
"Assumed Indebtedness" means Indebtedness which is (i) secured
by a Lien covering property or assets acquired by Borrower or any of its
Subsidiaries, (ii) Indebtedness of a Person acquired by Borrower or any of its
Subsidiaries or (iii) Indebtedness to which the assets of a Person acquired by
Borrower or any of its Subsidiaries are subject, which in the case of any of
clause (i), (ii) or (iii) is outstanding at the time of the relevant acquisition
and remains outstanding following such acquisition.
"Average Cost of Debt" means, in respect of Borrower, the
quotient (measured over the four most recent financial quarters of Borrower) of
(i) Consolidated Interest Charges in respect of Indebtedness included in clauses
(i)-(vi) of the definition thereof set forth herein divided by (ii) the daily
average outstanding amount of Indebtedness included within such clauses.
"Base Rate" means a fluctuating interest rate per annum as
shall be in effect from time to time, which rate per annum shall at all times be
equal to the greater of:
(i) the prime rate of interest announced by
Administrative Agent from time to time, changing when
and as said prime rate changes; and
(ii) the sum of one-half of one percent (0.5%) and the
Federal Funds Rate in effect from time to time,
changing when and as such Federal Funds Rate changes.
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"Base Rate Loans" means the portion of the Loans (which are
denominated in U.S. Dollars) the interest on which is computed by reference to
the Base Rate.
"Borrower" has the meaning set forth in the first paragraph of
this Agreement.
"Borrowing Date" means the Business Day specified in a Notice
of Borrowing as the date on which Borrower requests the Lenders to make Loans
hereunder.
"Bridge Financings" means Indebtedness of Borrower or its
Subsidiaries in the nature of bridge financings to effect acquisitions of Fee
Interests or Mortgage Interests by Borrower or its Subsidiaries so long as the
final date for payment or other settlement of all such bridge financing
Indebtedness is less than one year from the date of its incurrence or issuance.
"Business" means the business of the Borrower and its
Subsidiaries, which consists of the acquisition, financing and operation of real
estate and activities incidental thereto.
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banks in New York City or London, England are
authorized or required by law to remain closed or on which banks are not open
for dealings in U.S. Dollar and GBP deposits in the London interbank market.
"Calculation Item" has the meaning set forth in Section 1.3.
"Capitalized Lease Obligation" means, as to any Person, any
obligation of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) real or personal property which
obligation is required to be classified or accounted for as a capital lease
obligation on a balance sheet of such Person prepared in accordance with GAAP
and, for purposes of this Agreement, the amount of such obligation at any date
shall be the outstanding amount thereof at such date, determined in accordance
with GAAP and Section 1.3(a).
"Cash Flow" means, for any period and any Person in respect of
one or more Properties and/or Mortgaged Properties as to which such Person is
the Tenant or Mortgagor thereof, the sum (without duplication of counting and
determined in accordance with Section 1.3(a)) of (i) Income Before Extraordinary
Items, (ii) Consolidated Interest Charges payable to Borrower, in the case
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of a Mortgaged Property, (iii) depreciation expenses, (iv) amortization
expenses, (v) other non-cash items reducing Income before Extraordinary Items,
(vi) all payments required to be made to Borrower or any of its Subsidiaries
under a Lease, including without limitation fixed rent, participation rent and
additional rent in respect of (a) operating expenses, (b) taxes based on the
ownership of real property, (c) insurance premiums and/or (d) any other costs or
expenses of the relevant lessor or sublessor, (vii) subordinated expenses paid
to any Affiliate of such Tenant or such Mortgagor relating to management,
accounting or other similar fees, and (viii) to the extent otherwise included in
the calculation of Income Before Extraordinary Items, any Restricted Payment,
less non-cash items increasing Income Before Extraordinary Items, in each case
of such Person for such period attributable to such Properties and/or Mortgaged
Properties.
"Cash Flow Event" means in respect of a Property or Mortgaged
Property, that the Cash Flow arising from such Property or Mortgaged Property of
the Tenant or Mortgagor thereof (as applicable) over its four most recent
financial quarters (or, if financial reporting for such Cash Flow is provided on
an annual basis, over its last reported financial year), attributable to that
Property or Mortgaged Property is less than its Fixed Charges over the same
period for such Property or Mortgaged Property; provided that a Cash Flow Event
shall not be deemed to occur in respect of a Property or a Mortgaged Property
that is part of a group of Cross Guarantied Assets if the Cash Flow of the
Tenants and Mortgagors determined on an aggregate basis over their respective
four most recent financial quarters (or last reported financial year, as the
case may be) attributable to the relevant group of Cross Guarantied Assets, is
greater than or equal to their Fixed Charges determined on an aggregate basis
over the same period in respect of such group of Cross Guarantied Assets.
"Clinic" means, in the case of a Property, a Property 50% or
more of the rentable area of which is leased for use in, or, in the case of a
Mortgaged Property, a Mortgaged Property 50% of the usable area of which is used
for, the provision of outpatient medical services directly to patients.
"Co-Agent" means a Co-Agent appointed hereunder in accordance
with Section 8.1(n).
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commission" means the United States Securities and Exchange
Commission or any successor to the responsibilities of such commission.
"Commitment" has the meaning set forth in Section 2.1(b).
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"Common Shares" means Borrower's common shares of beneficial
interest, $0.01 par value.
"Consolidated EBITDA" means, for any period, (A) the sum of
the amounts for such period of (i) Consolidated Net Income, (ii) Consolidated
Interest Charges, (iii) provisions for current taxes based on income, (iv) total
depreciation expense and (v) total amortization expense, all of the foregoing as
determined on a consolidated basis for Borrower and its Subsidiaries in
conformity with GAAP.
"Consolidated Interest Charges" of a Person for any period
means the sum of (i) the aggregate interest accrued and payable in cash,
securities or otherwise on all Indebtedness of such Person and its Subsidiaries,
if any, on a consolidated basis for such period, plus (ii) the aggregate amount
of debt discount or other amounts analogous to interest accruing during or
attributable to such period, whether or not payable during such period,
including without limitation all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance financing
and net costs under (a) Hedging Agreements and (b) Currency Agreements, all
amounts calculated above to be determined in conformity with GAAP and in
accordance with Section 1.3(a).
"Consolidated Net Income" means, for any period, the net
income (or loss) of Borrower and its Subsidiaries on a consolidated basis for
such period determined in conformity with GAAP; provided that there shall be
excluded (i) the income (or loss) of any Person (other than a Subsidiary of
Borrower) in which any other Person (other than Borrower or any of its
Subsidiaries) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to Borrower or any of its
Subsidiaries by such Person during such period, (ii) the income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary of Borrower or is
merged into or consolidated with Borrower or any of its Subsidiaries or that
Person's assets are acquired by Borrower or any of its Subsidiaries, (iii) the
income of any Subsidiary of Borrower to the extent that the declaration or
payment of dividends or similar distributions by that Subsidiary of that income
is not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary, (iv) any net extraordinary or unusual
gains or net extraordinary or unusual losses and (v) any gains or losses on the
sale of Properties.
"Contingent Obligation" means, as to any Person, any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations ("primary obligations") of
any other Person (the "primary obligor") in any
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manner, whether directly or indirectly, including, without limitation, any
obligation of such Person, whether or not contingent, (a) to purchase any such
primary obligation or any property constituting direct or indirect security
therefor, (b) to advance or supply funds (i) for the purchase or payment of any
such primary obligation or (ii) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (c) to purchase property, securities or services primarily for
the purpose of assuring the owner of any such primary obligation of the payment
of, or the ability of the primary obligor to make payment of, such primary
obligation or (d) otherwise to assure or hold harmless the owner of such primary
obligation against loss in respect thereof; provided that the term Contingent
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Contingent
Obligation shall be determined in accordance with Section 1.3(a) and shall be
deemed to be an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Contingent Obligation is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder) as determined
by such Person in good faith.
"Contractual Obligation" means, as to any Person, the
Certificate of Incorporation and By-Laws or other organizational or governing
documents of such Person, and any provision of any security issued by such
Person or of any agreement, instrument or undertaking to which such Person is a
party or by which it or any of its property is bound.
"Control" (including with correlative meanings the terms
"Controlling", "Controlled by" and "under common Control with"), as applied to
any Person, means the possession of the power, direct or indirect, (i) to vote
20% or more of the securities having ordinary voting power for the election of
directors or trustees of such Person, or (ii) to direct or cause the direction
of the management and policies of such Person whether by contract or otherwise.
"Convertible Subordinated Debt" means, without duplication,
all Indebtedness of Borrower convertible only into common shares of Borrower
which has no scheduled date for the maturity, redemption, sinking fund payment
or other reduction or payment of principal that is on or before the Termination
Date and which has terms for the acceleration and for mandatory prepayment of
principal that are satisfactory to Agent, and the payment of which Indebtedness
has been made expressly subordinate to the payment of the Indebtedness under
this Agreement upon terms and conditions satisfactory to Agent.
-11-
"Credit Support Agreements" means each of the Lease
Guarantees, Mortgage Guarantees, Pledges and Sublease Agreements, and any other
agreements or instruments providing assurances in any form, in each case in
respect of any Person's obligations under a Lease or Mortgage Interest
Agreement.
"Credit Support Obligors" means the obligors in respect of the
Credit Support Agreements, and each of them.
"Cross Guarantied Assets" means a group of Properties and/or
Mortgage Interests as to which the various Tenants and/or Mortgagors have
guarantied each other's obligations to Borrower and/or any of Borrower's
Subsidiaries and have agreed to cross-default such obligations and/or
cross-collateralize those obligations to the extent of any security or credit
support that has been provided for such obligations or a group of Properties
and/or Mortgage Interests operated by a single Tenant or Mortgagor as to which
such Tenant or Mortgagor has agreed to cross-default all of its obligations to
Borrower and/or any of Borrower's Subsidiaries and to cross-collateralize those
obligations to the extent of any security or credit support that has been
provided for such obligations.
"Currency Agreements" means foreign exchange contracts and
other agreements or arrangements designed to protect a Person and/or its
Subsidiaries against fluctuations in currency values.
"Current" means, at any date of determination, in respect of
cash flow information of a Tenant or Mortgagor required in a Real Property
Statement, (a) for a fiscal year of that Tenant or Mortgagor, that such
information relates to its fiscal year then current or the fiscal year ended not
more than one hundred and fifty days prior thereto or (b) for a fiscal quarter
of that Tenant or Mortgagor, that such information relates to its fiscal quarter
then current or a fiscal quarter ended not more than seventy five days prior
thereto.
"Declaration of Trust" means the Declaration of Trust
establishing Borrower, dated October 9, 1986, as amended and restated on July 1,
1994, as amended as of July 2, 1996 and as of February 27, 1997, as such
Declaration of Trust may be further amended, supplemented or modified from time
to time.
"Default" means any of the events specified in Section 7.1,
whether or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
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"Effective Date" means the date when the conditions precedent
set forth in Section 4.1 are first satisfied, or are waived pursuant to Section
10.6.
"Eligible Mortgage" means each Mortgage Interest; provided
that (i) there has been no MAC (other than a MAC which has ceased to be in
effect) in respect of the relevant Mortgaged Property (or any Mortgagor or
Credit Support Obligor for the applicable Mortgage Interest Agreements) since
December 31, 1997 or, if later, the date on which the Borrower or any of its
Subsidiaries acquired an interest in such Mortgaged Property, (ii) such Mortgage
Interest is not subject to a Lien otherwise permitted pursuant to Section 6.9(i)
or 6.9 (iv), (iii) in the case of Mortgaged Properties consisting of Office
Assets or Clinics or Mortgaged Properties that have more than one Tenant, the
Notional Interest Cover Ratio is met, and (iv) in the case of Mortgaged
Properties that do not consist of Office Assets or Clinics or that do not have
more than one Tenant, (a) the Mortgagor in respect of such Mortgage Interest is
not in default under any payment obligation or in any material respect under any
other Contractual Obligation between such Mortgagor and Borrower or any of its
Subsidiaries, including without limitation any Mortgage Interest Agreement, any
note payable by such Mortgagor to Borrower or any of its Subsidiaries or any
Lease, (b) there has been no Cash Flow Event with respect to such Mortgaged
Property, and (c) no Credit Support Obligor in respect of such Mortgage Interest
is in default under any payment obligation or in any material respect under any
other Contractual Obligation of such Credit Support Obligor to Borrower or any
of its Subsidiaries, including without limitation any Lease, Mortgage Interest
Agreement or Credit Support Agreement.
"Eligible Property" means each Property which is leased or
subleased to a Tenant; provided that (i) there has been no MAC (other than a MAC
which has ceased to be in effect) in respect of the relevant Property (or any
Tenant or Credit Support Obligor for the Lease thereof), since December 31, 1997
or, if later, the date on which the Borrower or any of its Subsidiaries acquired
an interest in such Property, (ii) such Property is not subject to a Lien
otherwise permitted pursuant to Section 6.9(i) or 6.9(iv), (iii) in the case of
Properties consisting of Office Assets, Clinics, Government Property Assets or
any other Property that has more than one Tenant, the Notional Interest Cover
Ratio is met, and (iv) in the case of Properties that do not consist of Office
Assets, Clinics or Government Property Assets or any other Property that has
more than one Tenant, (a) it is not a Property the Tenant of which has failed to
exercise any renewal option under the Lease thereof prior to the expiration of
the option (and no replacement Lease with that or another Tenant has been signed
for that Property unless the date of expiration of the existing Lease is after
the Final Repayment Date), (b) such Tenant is not in default under any
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payment obligation or in any material respect under any other Contractual
Obligation between such Tenant and Borrower or any of its Subsidiaries,
including without limitation such Lease, any other Lease or any Mortgage
Interest Agreement, (c) there has been no Cash Flow Event with respect to such
Property, and (d) no Credit Support Obligor for the Lease of such Property is in
default under any payment obligation or in any material respect under any other
Contractual Obligation of such Credit Support Obligor to Borrower or any of its
Subsidiaries, including without limitation any Lease, Mortgage Interest
Agreement or Credit Support Agreement.
"Environmental Laws" means all statutes, ordinances, orders,
rules and regulations having effect in any domestic or foreign jurisdiction
relating to environmental matters, including, without limitation, those relating
to fines, orders, injunctions, penalties, damages, contribution, cost recovery
compensation, losses or injuries resulting from the Release or threatened
Release of Hazardous Materials and to the generation, use, storage,
transportation, or disposal of Hazardous Materials, in any manner applicable to
Borrower or any Tenant or Mortgagor or any of their respective Subsidiaries or
any of their respective properties, including, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C.
ss. 9601 et seq.), the Hazardous Material Transportation Act (49 U.S.C. ss. 1801
et seq.), the Resource Conservation and Recovery Act (42 U.S.C. ss. 6901 et
seq.), the Federal Water Pollution Control Act (33 U.S.C. ss. 1251 et seq.), the
Clean Air Act (42 U.S.C. ss. 7401 et seq.), the Toxic Substances Control Act (15
U.S.C. ss. 2601 et seq.), the Occupational Safety and Health Act (29 U.S.C. ss.
651 et seq.) and the Emergency Planning and Community Right-to-Know Act (42
U.S.C. ss. 11001 et seq.), each as amended or supplemented, and any analogous
future or present local, municipal, state and federal statutes and regulations
promulgated pursuant thereto, each as in effect as of the date of determination.
"Equivalent Amount" means the amount of a currency other than
U.S. Dollars that can be purchased with U.S. Dollars calculated on the basis of
Administrative Agent's spot rate of exchange for the purchase of such other
currency with U.S. Dollars at approximately 11:00 am (New York City time) on the
date such calculation is to be made (such calculation to be made on the
occasions set forth in Section 1.3(b)).
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means (i) any corporation which is an entity
under common control with Borrower within the meaning of Section 4001 of ERISA
or a member of a controlled group of
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corporations within the meaning of Section 414(b) of the Code of which Borrower
is a member; (ii) any trade or business (whether or not incorporated) which is a
member of a group of trades or businesses under common control within the
meaning of Section 414(c) of the Code of which Borrower is a member; and (iii)
any member of an affiliated service group within the meaning of Section 414(m)
or (o) of the Code of which Borrower, any corporation described in clause (i)
above or any trade or business described in clause (ii) above is a member.
"Eurocurrency Loans" means the portion of the Loans (which may
be denominated in U.S. Dollars or in GBP) the interest on which is computed by
reference to the LIBO Rate.
"Event of Default" means any of the events specified in
Section 7.1; provided that any requirement for the giving of notice, the lapse
of time, or both, or any other condition, has been satisfied.
"Existing Loan Agreement" has the meaning set forth in the
introduction to this Agreement.
"Existing Loans" has the meaning set forth in Section 2.1(a).
"Excluded Taxes" means taxes upon any Lender's overall net
income imposed by the United States of America or any political subdivision or
taxing authority thereof or therein or by any jurisdiction in which the Lending
Office of any Lender is located or in which any Lender is organized or has its
principal or registered office, except taxes, duties or charges imposed pursuant
to Section 1, 2 and/or 39 of the Massachusetts General Laws, Chapter 63, as
currently in effect or as amended hereafter or any analogous provisions (or
provisions having an analogous effect) of the laws, rules or regulations (or
interpretations thereof) of Massachusetts or any other Governmental Authority.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for such
day (or, if such day is not a day for which such rate is published, for the next
preceding day for which it is published) by the Federal Reserve Bank of New
York.
"Fee Interests" means any land and any buildings, structures,
improvements and fixtures owned beneficially in fee simple by Borrower or any of
its Subsidiaries, and any equipment located thereon or used in connection
therewith and/or all
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personalty (including, without limitation, franchises) related thereto, in each
case owned by Borrower or any of its Subsidiaries, and all other real estate
interests, owned beneficially by Borrower or any of its Subsidiaries.
"Final Borrowing Date" means the earlier of (i) April 15, 2001
and (ii) such date as the Commitments shall terminate as provided herein.
"Final Repayment Date" means the later of (i) the Termination
Date and (ii) such date as all Loans have been paid in full.
"Fixed Charges" means, for any period and any Person in
respect of one or more Properties and/or Mortgaged Properties as to which such
Person is the Tenant or Mortgagor thereof, the sum (without duplication of
counting and determined in accordance with Section 1.3(a)) of (i) Consolidated
Interest Charges, (ii) all payments required to be made as lessee or sublessee
under the terms of any Lease or other lease agreement, including without
limitation fixed rent, participation rent and additional rent in respect of (a)
operating expenses, (b) taxes based on the ownership of real property, (c)
insurance premiums and/or (d) any other costs or expenses of the relevant lessor
or sublessor, and (iii) scheduled payments of principal of Indebtedness or
payments of amounts equivalent to principal, in each case of such Person, for
such period and attributable to such Properties and/or Mortgaged Properties.
"Fleet" means Fleet National Bank, a bank organized under the
laws of the United States of America.
"GAAP" means, subject to the provisions of Section 1.2,
generally accepted accounting principles set forth in the Opinions of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements by the Financial Accounting Standards Board or in
such other statement by such other entity as may be approved by a significant
segment of the accounting profession, which are applicable to the circumstances
as of the date in question; and the requirement that such principles be applied
on a consistent basis shall mean that the accounting principles observed in a
current period are comparable in all material respects to those applied in a
preceding period.
"GBP" shall mean the lawful currency from time to time of the
United Kingdom; provided that such currency shall be converted into the single
currency of the European Economic and Monetary Union, if one is introduced and
adopted by the United Kingdom, calculated at the officially fixed rate of
conversion on the date on which the original currency is replaced by the single
currency.
-16-
"Government Agency" means the federal government of the United
States of America or any instrumentality or agency thereof the obligations of
which, under the relevant Lease of a Government Property Asset, are backed by
the full faith and credit of the United States of America.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
Controlled (through stock or capital ownership or otherwise) by any of the
foregoing.
"Government Properties Assumed Indebtedness" means the
Indebtedness existing pursuant to the following documents: (i) the Project Note
dated February 15, 1995 in the original principal amount of $15,425,000 issued
by Rosecliff Realty Richland Inc., a wholly-owned Subsidiary of Hub, and (ii)
the Amended and Restated Lease Agreement dated as of March 1, 1996 between the
Erie County Industrial Development Agency and Rosecliff Realty Buffalo, Inc, a
wholly-owned Subsidiary of Hub, relating to the Industrial Development Revenue
Bond (1993 Federal Center Project) issued by such agency in the original
principal amount of $13,043,570.43, as each such document has been amended to
date and may be further amended from time to time hereafter, in each case by
amendments that do not materially prejudice the interests of the Lenders
hereunder.
"Government Property Asset" means a Property which is leased
or subleased to a Government Agency by Borrower or any of its Subsidiaries for
use as offices or for other administrative purposes.
"Hazardous Material" means (i) any chemical, material,
substance or waste defined as or included in the definition of "hazardous
substances", "hazardous wastes", "hazardous materials", "extremely hazardous
waste", "restricted hazardous waste", or "toxic substances" or any other
formulations intended to define, list or classify substances by reason of
deleterious properties under any applicable Environmental Laws, (ii) biomedical
waste, (iii) any oil, petroleum or petroleum derived substance, any drilling
fluids, produced waters and other wastes associated with the exploration,
development or production of crude oil, any flammable substances or explosives,
any radioactive materials, any toxic wastes or substances or any other materials
or pollutants which (a) pose a hazard to any property of Borrower or any Tenant
or Mortgagor or any of their respective Subsidiaries or to Persons on or about
such property or (b) cause such property to be in violation of any Environmental
Laws, (iv) asbestos in any form which is or could become friable, urea
formaldehyde foam
-17-
insulation, electrical equipment which contains any oil or dielectric fluid
containing levels of polychlorinated biphenyls in excess of fifty parts per
million, and (v) any other chemical, material, substance or waste, exposure to
which is prohibited, limited or regulated by any Governmental Authority or may
or could pose a hazard to the health and safety of the owners, occupants or any
Persons surrounding the Properties.
"Hedging Agreements" means interest rate swap agreements,
interest rate collar agreements and other agreements or arrangements designed to
protect a Person and/or its Subsidiaries against fluctuations in interest rates.
"Hospitality Properties Trust" means Hospitality Properties
Trust, a real estate investment trust formed under the laws of the State of
Maryland.
"Hub" means Hub Acquisition Trust, a Maryland real estate
investment trust and wholly-owned Subsidiary of Borrower.
"Income Before Extraordinary Items" means, for any period and
any Person in respect of one or more Properties and/or Mortgaged Properties as
to which such Person is the Tenant or Mortgagor thereof, the net income (or
loss) of such Person for such period attributable to such Properties and/or
Mortgaged Properties, excluding any extraordinary items (net of taxes) and
including amounts paid or provided for income taxes or deferred income taxes by
or on behalf of such Person attributable to such Properties and/or Mortgaged
Properties, all as determined in conformity with GAAP and Section 1.3(a).
"Indebtedness" means, with respect to any Person, and without
duplication and determined in accordance with Section 1.3(a), (i) all
indebtedness, obligations and other liabilities (contingent or otherwise) of
such Person for borrowed money or other extensions of credit or evidenced by
bonds, debentures, notes or similar instruments (whether or not the recourse of
the lender is to the whole of the assets of such Person or to only a portion
thereof), (ii) all reimbursement obligations and other liabilities (contingent
or otherwise) of such Person with respect to letters of credit or bankers'
acceptances issued for the account of such Person or with respect to Hedging
Agreements or securities repurchase agreements or Currency Agreements, (iii) all
obligations and other liabilities (contingent or otherwise) of such Person with
respect to any conditional sale, installment sale or other title retention
agreement, purchase money mortgage or security interest, or otherwise to pay the
deferred purchase price of property or services (except trade accounts payable
and accrued expenses arising in the ordinary course of business) or in respect
of any sale and leaseback arrangement, (iv) all Capitalized Lease
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Obligations of such Person, (v) all Contingent Obligations of such Person, (vi)
all surety and other bonds and deposits, and all obligations and other
liabilities secured by a Lien or other encumbrance on any asset of such Person
(even though such Person has not assumed or otherwise become liable for the
payment thereof), and (vii) all obligations to purchase, redeem or acquire any
capital stock of such Person or its Subsidiaries that, by its terms or by the
terms of any security into which it is convertible or exchangeable, is, or upon
the happening of any event or the passage of time would be, required to be
redeemed or repurchased by such Person or its Subsidiaries, including at the
option of the holder, in whole or in part, or has, or upon the happening of an
event or passage of time would have, a redemption or similar payment due, on or
prior to the fifth anniversary of the date hereof or, if later, the date which
is two years after the due date for the final repayment of the Loans as
specified in any amendment of this Agreement.
"Independent Trustees" has the meaning set forth in the
Declaration of Trust.
"Insolvency Event", with respect to any Person, means that (i)
such Person shall have suspended or discontinued its business or commenced any
case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its assets, or such Person shall
have made a general assignment for the benefit of its creditors; or (ii) there
shall have been commenced against such Person any case, proceeding or other
action of a nature referred to in clause (i) above which (A) results in the
entry of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall have been commenced against such Person any case, proceeding or
other action seeking issuance of a warrant of attachment, execution, distraint
or similar process against all or any substantial part of its assets, which
results in the entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) such Person shall have taken any action in furtherance
of, or indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii) or (iii) above; or (v) such Person shall
generally not be paying, or shall have been unable to pay, or shall have
admitted in writing its inability to pay, its debts as they become due.
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"Interest Payment Date" means, subject to Section 2.10 hereof,
(i) in the case of a Eurocurrency Loan, the last day of each Interest Period;
provided that in the case of each Interest Period of more than three months
duration, "Interest Payment Date" shall also include each date that is three
months, or an integral multiple thereof, after commencement of such Interest
Period; and (ii) in the case of an Alternate Rate Loan or Base Rate Loan, the
last Business Day of March, June, September and December of each year and the
date such Loan (or any portion thereof) is converted in accordance with the
terms hereof into a Base Rate Loan or Eurocurrency Loan, in the case of an
Alternate Rate Loan, or an Alternate Rate Loan or Eurocurrency Loan, in the case
of a Base Rate Loan.
"Interest Period" means with respect to each Eurocurrency
Loan, and subject to Section 2.10 hereof, a one, two, three or six month period
(or such other period of less than six months as shall be agreed by all the
Lenders) as selected at the option of Borrower pursuant to a Notice of Borrowing
or Notice of Continuation; provided that:
(i) no Interest Period may be selected which expires later
than the Termination Date;
(ii) any Interest Period which begins on the last Business Day
of a calendar month (or on a day with respect to which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to the foregoing proviso, end on the
last Business Day of a calendar month;
(iii) if any Interest Period would otherwise end on a day
which is not a Business Day, it shall end on the next Business Day in
the same calendar month, or if none, on the preceding Business Day;
(iv) in the case of immediately successive Interest Periods
applicable to a Eurocurrency Loan continued as such pursuant to a
Notice of Continuation, each successive Interest Period shall commence
on the day on which the next preceding Interest Period expires;
(v) there shall be no more than eight Interest Periods
outstanding at any one time; and
(vi) in the event Borrower fails to specify an Interest Period
for any Loan in the applicable Notice of Borrowing or
-20-
Notice of Continuation, Borrower shall be deemed to have selected an
Interest Period of one month.
"Interest Rate Determination Date" means each date for
calculating the LIBO Rate for purposes of determining the interest rate in
respect of an Interest Period. For a Eurocurrency Loan, the Interest Rate
Determination Date for such Loans denominated in U.S. Dollars shall be the
second Business Day prior to the first day of the related Interest Period, while
the Interest Rate Determination Date for such Loans denominated in GBP shall be
the first day of the related Interest Period.
"Investment Grade", with respect to any Person, means that
such Person's senior unsecured long-term indebtedness is rated BBB- or higher by
Standard & Poor's Ratings Group or by Fitch Investors Service, Inc. or Baa3 or
higher by ▇▇▇▇▇'▇ Investors Service (or similarly rated by any successor to any
of such rating agencies).
"Investment Grade Person" means a Person that has senior
unsecured long-term indebtedness which is rated Investment Grade.
"Lease Guarantees" means each guarantee, or other similar
undertaking issued by any Person in respect of any of the obligations of a
Tenant under a Lease.
"Lease Guarantors" means the obligors in respect of the Lease
Guarantees, and each of them.
"Leasehold Interests" means any leasehold estate in any land
and/or any buildings, structures, improvements and fixtures owned beneficially
by Borrower or any of its Subsidiaries and any equipment owned by Borrower or
any of its Subsidiaries and located thereon or used in connection therewith
and/or all personalty (including, without limitation, franchises) related
thereto owned beneficially by Borrower or any of its Subsidiaries.
"Leases" means any leases or subleases relating to the
Properties in respect of which Borrower of any of its Subsidiaries is the
lessor.
"Lender" has the meaning set forth in the first paragraph of
this Agreement.
"Lending Office" means the branch or Affiliate office or
offices of each Lender designated as the Lending Office(s) of such Lender on
Schedule 1 and each other branch or Affiliate office as such Lender may
designate as its Lending Office(s) from time to time by notice to Agent and
Borrower.
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"LIBO Rate" means the average (expressed as a percentage and
rounded to the nearest one ten thousandth of one percent) of the offered rates,
if any, quoted by the Reference Banks to Administrative Agent in the London
interbank market for U.S. Dollar or GBP (as applicable) deposits of amounts
comparable to the principal amount of the Loans for which the LIBO Rate is being
determined with maturities comparable to the Interest Period for which such LIBO
Rate will apply as of approximately 11:00 A.M. (London time) on the Interest
Rate Determination Date for such Interest Period.
"Lien" means, as to any Person, any mortgage, lien (statutory
or otherwise), pledge, adverse claim, charge, security interest, assignment,
deposit agreement or other encumbrance in or on, or any interest or title of any
vendor, lessor, lender or other secured party to or of such Person under any
conditional sale or other title retention agreement or Capitalized Lease
Obligation with respect to any property or asset of such Person, or the signing
or filing of a financing statement which names such Person as debtor, or the
signing of any security agreement authorizing any other party as the secured
party thereunder to file any financing statement.
"Loan Agents" has the meaning set forth in Section 8.1(a).
"Loan Documents" means, collectively, this Agreement
(including, without limitation, the guaranties in Section 9), the Notes and any
other agreements, documents or instruments delivered pursuant to or in
connection with any of the foregoing, as such agreements, documents or
instruments may be amended, modified or supplemented from time to time.
"Loans" means the Existing Loans and the revolving loans made
or to be made to Borrower by the Lenders hereunder.
"MAC" means, with respect to any Property or Mortgage
Interest, any material adverse effect on or change in (a) the business,
operations, assets, prospects or financial condition or other condition of (i)
such Property or (ii) such Mortgage Interest or (iii) any Tenant of such
Property (or in the case of a Property with more than one Tenant, the Tenants of
such Property taken as a whole) or (iv) any Mortgagor of such Mortgage Interest
or (v) any Credit Support Obligor of such Property or Mortgage Interest, (b)
Agent's, Administrative Agent's or any Lender's rights and remedies under the
Loan Documents, or (c) the ability of (i) any Tenant of such Property (or in the
case of a Property with more than one Tenant, the Tenants of such Property taken
as a whole) or (ii) any Mortgagor of such Mortgage Interest or (iii) any Credit
Support Obligor of such Property or Mortgage Interest to perform its
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obligations under the Loan Documents or under the Leases, the Mortgage Interest
Agreements or the Credit Support Agreements in respect of such Property or
Mortgage Interest.
"Majority Lenders" means, at any particular time, Lenders
having more than 66-2/3% of the Commitments, or if the Commitments have been
terminated at such time, Lenders having more than 66-2/3% of the aggregate
principal amount of the Loans then outstanding.
"Mandatory Liquid Asset Costs" means, in relation to each
Lender which may be subject to such requirements, the additional cost to such
Lender of complying with the relative reserve asset ratio required by the Bank
of England from time to time (if any), expressed as a percentage per annum and
calculated as set forth in Schedule 5.
"Material Adverse Effect" means a material adverse effect on
(a) the business, operations, assets, prospects or financial condition or other
condition of (i) Borrower and its Subsidiaries taken as a whole or (ii) the
Properties and Mortgage Interests taken as a whole, (b) Agent's, Administrative
Agent's or any Lender's rights and remedies under the Loan Documents, (c) the
ability of (i) Borrower or any of its Subsidiaries or (ii) the Advisor to
perform its respective obligations under the Loan Documents, the Advisory
Agreement, the Leases, the Mortgage Interest Agreements or the Credit Support
Agreements, or (d) the ability of the Tenants, Mortgagors and Credit Support
Obligors (taken as a whole) to perform their obligations under the Leases, the
Mortgage Interest Agreements and the Credit Support Agreements insofar as they
relate to Eligible Properties and Eligible Mortgages.
"Mortgage Guarantees" means each guarantee, letter of credit
or other similar undertaking issued by any Person in respect of any of the
obligations of a Mortgagor under a Mortgage Interest Agreement.
"Mortgage Guarantors" means the obligors in respect of the
Mortgage Guarantees, and each of them.
"Mortgage Interest" means any interest of Borrower or any of
its Subsidiaries as lender and as mortgagee or beneficiary, as applicable, in
respect of a loan secured in whole or in part by a Lien on any land or any
buildings, structures, improvements and fixtures (including any leasehold estate
with respect thereto).
"Mortgage Interest Agreement" means any agreement, note,
mortgage, deed of trust and/or other document creating, evidencing or securing a
Mortgage Interest.
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"Mortgaged Property" means any land and any building,
structure, improvements and fixtures (including any leasehold estate with
respect thereto) with respect to which Borrower or any of its Subsidiaries has a
Mortgage Interest.
"Mortgagor" means, in the case of a Mortgage Interest, the
obligor or obligors in respect of such Mortgage Interest.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which Borrower or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make contributions.
"Multiple Employer Plan" means an employee benefit plan, other
than a Multiemployer Plan, subject to Title IV of ERISA to which Borrower or any
ERISA Affiliate, and at least one employer other than Borrower or an ERISA
Affiliate, is making or accruing an obligation to make contributions or, in the
event that any such plan has been terminated, to which Borrower or any ERISA
Affiliate made or accrued an obligation to make contributions during any of the
five plan years preceding the date of termination of such plan.
"Net Mortgage Proceeds" means (a) any amounts paid, other than
scheduled repayments, by a Mortgagor to Borrower or any of its Subsidiaries
under an agreement, evidencing or securing any interest of Borrower or such
Subsidiary as lender and as mortgagee or beneficiary, as applicable, in respect
of a loan secured in whole or in part by a Lien on a Property, in respect of
principal thereunder, plus (b) the gross proceeds received by or for the account
of Borrower or such Subsidiary of any sale or other disposition of any such
agreement, minus (c) the reasonable out-of-pocket fees and expenses (including
attorneys' fees and expenses) incurred by Borrower or such Subsidiary in
connection with such sale or other disposition.
"Net Property Proceeds" means (a) the gross proceeds received
by or for the account of Borrower or any of its Subsidiaries of any sale, lease
or other disposition of any Fee Interest or Leasehold Interest or termination or
substitution of any lease or sublease with respect to any Fee Interest or
Leasehold Interest of Borrower or any of its Subsidiaries minus the reasonable
out-of-pocket fees and expenses (including attorneys' fees and expenses)
incurred by Borrower or such Subsidiary in connection with such sale or other
disposition, (b) all insurance proceeds paid and received by or for the account
of Borrower or such Subsidiary on account of the loss of or damage of any such
Fee Interest or Leasehold Interest, to the extent such proceeds are not applied
to the replacement or restoration of such assets and (c) all proceeds received
by or for the account of Borrower or such
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Subsidiary, arising from the taking by condemnation or eminent domain of any
such Fee Interest or Leasehold Interest, to the extent such proceeds are not
applied to the replacement or restoration of such assets.
"Net Securities/Debt Proceeds" with respect to any private or
public offering of securities or any borrowing from one or more financial
institutions means the gross proceeds thereof received by or for the account of
Borrower net of (a) underwriting discounts and commissions and (b) reasonable
out-of-pocket fees and expenses incurred in connection with such offering or
borrowing.
"Notes" has the meaning set forth in Section 2.2.
"Notice of Borrowing" means a notice substantially in the form
of Exhibit B hereto delivered by Borrower to Administrative Agent (with a copy
to Agent to follow) pursuant to Section 2.3 with respect to a proposed
borrowing.
"Notice of Continuation/Conversion" means a notice
substantially in the form of Exhibit C hereto delivered by Borrower to
Administrative Agent (with a copy to Agent to follow) pursuant to Section 2.5
with respect to a continuation or conversion of one or more Loans.
"Notional Interest Cover Ratio" means, in respect of a (a)
Property that is an Office Asset, a Clinic, any other Property that has more
than one Tenant, or a Government Property Asset, a ratio of (i) Adjusted Net
Operating Cash Flow in respect of such Property (measured over the four most
recent financial quarters of Borrower or, if less, the number of full financial
quarters of Borrower during which the relevant Property has been a Property and
annualized if measured over less than four financial quarters and in the case of
a Government Property Asset that has not been a Property for a full financial
quarter then Adjusted Net Operating Cash Flow shall be calculated after giving
pro forma effect to such acquisition in a manner reasonably acceptable to the
Agent), to (ii) a notional amount of interest payable at a rate equal at all
times to the Average Cost of Debt on a notional amount of principal equal to 80%
of the acquisition cost to Borrower of such Property as calculated in accordance
with GAAP (measured over the four most recent financial quarters of Borrower),
of at least 1.25:1; and (b) Mortgaged Property that is an Office Asset, a Clinic
or a Property that has more than one Tenant a ratio of (i) Adjusted Net Interest
in respect of such Property (measured over the four most recent financial
quarters of Borrower or, if less, the number of full financial quarters of
Borrower during which the relevant Mortgaged Property has been a Mortgaged
Property and annualized if measured over less than four financial quarters), to
(ii) a notional amount of interest payable at a rate equal at all times to the
Average
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Cost of Debt on a notional amount of principal equal to 80% of the Indebtedness
secured by such Office Asset or Clinic (measured over the four most recent
financial quarters of Borrower), of at least 1.25:1.
"Office Asset" means, in the case of a Property, that is not a
Clinic, a Property 50% or more of the rentable area of which is leased to one or
more Tenants for use as, or, in the case of a Mortgaged Property, that is not a
Clinic, a Mortgaged Property 50% or more of the usable area of which is used
for, (i) offices for the practice of the medical profession (or administrative
functions related thereto), including offices of physicians or physician
practice groups, or (ii) medical, pharmaceutical or biotechnical research and
development, or (iii) offices for a medical or health-related business or any
commercial office use.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA, or any successor to the
responsibilities of such corporation.
"Permitted Exceptions" means those exceptions to title set
forth on Schedule 2.
"Person" means an individual, partnership, limited liability
company, corporation, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Plan" means an employee benefit plan, other than a
Multiemployer Plan, maintained for or covering any employees of Borrower or any
ERISA Affiliate and subject to Title IV of ERISA.
"Pledges" means any pledge or grant of a Lien to secure any of
the obligations of a Mortgagor under a Mortgage Interest Agreement, a Tenant
under a Lease, a Mortgage Guarantor under a Mortgage Guarantee, a Lease
Guarantor under a Lease Guarantee or a Sublessee under a Sublease Agreement,
each as amended, supplemented or modified from time to time.
"Preferred Shares" means Borrower's preferred shares of
beneficial interest authorized under the Declaration of Trust.
"Primary Credit Support Obligor" means each Credit Support
Obligor in respect of obligations of a Primary Tenant/Mortgagor.
"Primary Tenant/Mortgagor" means any Tenant or Mortgagor
(other than a Tenant or Mortgagor which is an Investment Grade Person or a
Government Agency) which is a lessee or sublessee with respect to Properties
and/or an obligor or mortgagor with respect
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to Mortgage Interests or Properties representing, in aggregate, 10% or more of
the aggregate Allowed Value of the Properties and Mortgage Interests; provided
that with respect to any property interests located in the United Kingdom, every
Tenant and every Mortgagor shall be deemed to be a "Primary Tenant/Mortgagor".
"Process Agent" has the meaning set forth in Section 10.2.
"Property" or "Properties" means each of the properties in
which Borrower or any of its Subsidiaries has a Fee Interest or Leasehold
Interest.
"Pro Rata Share" means, with respect to each Lender as of the
date of determination, the percentage obtained by dividing (i) the Commitment of
that Lender as of such date by (ii) the Commitment of all Lenders as of such
date; provided that if the Commitments have been terminated at such time, such
Pro Rata Share shall be the percentage obtained by dividing (i) the aggregate
amount of the Loans outstanding from that Lender as of such date by (ii) the
aggregate amount of the Loans outstanding from all Lenders as of such date.
"Real Property" has the meaning set forth in Section 5.12.
"Real Property Permit" means, in respect of any Property or
Mortgaged Property, all certificates of occupancy, permits, licenses,
franchises, approvals and authorizations from all Governmental Authorities
having jurisdiction over such Property or Mortgaged Property or any portion
thereof, the absence of which could materially impair the use of such Property
or Mortgaged Property for the purposes for which it is currently used, and from
all insurance companies and fire rating and similar boards and organizations
required to have been issued to Borrower or any of its Subsidiaries or the
Tenant (in the case of a Property) or the Mortgagor (in the case of a Mortgaged
Property) to enable such Property or Mortgaged Property or any portion thereof
to be lawfully occupied and used as currently so occupied or used.
"Real Property Statement" means a certificate of a Responsible
Officer providing each of the following:
(i) a list of all Properties owned by Borrower and its
Subsidiaries or in which Borrower or any such Subsidiary has an
interest at the date of such certificate, identifying the nature of
such interest and certifying the Appraised Value, if available, and
each of the other costs, values and prices referred to in the
definition of "Allowed Value" relating to each Property;
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(ii) specification in respect of each Property of each of the
following:
(a) whether as of the date of such certificate such
Property is an Eligible Property or a Mortgaged Property
covered by an Eligible Mortgage;
(b) in respect of each Eligible Property, the
acquisition cost of Borrower or any of its Subsidiaries in
respect of such Eligible Property and the Appraised Value
thereof, as set forth in the most recent Appraisal (if any)
thereof;
(c) in respect of each Eligible Mortgage, the then
outstanding principal amount due to Borrower or any of its
Subsidiaries from the relevant Mortgagor in respect of such
Eligible Mortgage;
(iii) with respect to (x) each such Eligible Property that
consists of Office Assets, Clinics, Government Property Assets or that
is a Property that has more than one Tenant and (y) each such Eligible
Mortgage if the Mortgaged Property encumbered thereby consists of an
Office Asset or Clinic, or has more than one Tenant, certification that
the Notional Interest Cover Ratio with respect thereto has been met,
with details of the calculation thereof, and certification as to the
components thereof (including without limitation the Adjusted Net
Operating Cash Flow in respect of such Property for the applicable
period) and, further, certification that the details of the cash flows
of the Tenants or Mortgagors thereof used by Borrower in its
calculations are Current;
(iv) with respect to (x) each such Eligible Property that does
not consist of Office Assets, Clinics, Government Property Assets or
other Properties with more than one Tenant or (y) each such Eligible
Mortgage, if the Mortgaged Property encumbered thereby does not consist
of an Office Asset or Clinic or does not have more than one Tenant,
certification as to the ratio of (A) the Cash Flow of the Tenant or
Mortgagor thereof (as applicable) over the four most recent financial
quarters (or, if financial reporting for such Cash Flow is
provided on an annual basis, over its last reported financial year)
attributable to that Eligible Property or Eligible Mortgage to its (B)
Fixed Charges over the same period for such Eligible Property or
Eligible Mortgage and, further, certification that, with respect to
each Eligible Property or Eligible Mortgage, the details of cash flows
of the Tenant or Mortgagor thereof used by Borrower in its calculations
are Current; provided that if such Eligible Property or Eligible
Mortgage is part of a group of Cross Guarantied Assets, in addition to
the certification required for each individual
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Eligible Property or Eligible Mortgage, Borrower also shall provide
certification as to the ratio of (A) the Cash Flow of the Tenants or
Mortgagors (as applicable) for such group determined on an aggregate
basis over their respective four most recent financial quarters (or
last reported financial year, as the case may be) attributable to the
group of Cross Guarantied Assets to (B) their Fixed Charges over the
same period for such group of Cross Guarantied Assets; and
(v) certification that there has been no MAC in any of the
circumstances set forth in clause (i) of the definition of "Eligible
Mortgage" and clause (i) of the definition of "Eligible Property",
other than, in each case, a MAC which has ceased to be in effect.
"Recognized Appraiser" means a qualified and recognized
professional appraiser as may be selected or approved by Agent and
Administrative Agent with the consent of Borrower, which will not be
unreasonably withheld, having at least five years' prior experience in
performing real estate appraisals in the geographic area where the property
being appraised is located, having a recognized expertise in appraising
properties of the same general type and character as the property which is being
appraised; provided that if the property being appraised is located in the
United Kingdom, such appraiser will be selected or approved by Agent with the
consent of Borrower.
"Reference Banks" means Dresdner Bank AG, New York Branch,
Dresdner Bank AG, Cayman Island Branch and Fleet.
"Release" means any release, spill, emission, leaking,
pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal,
leaching or migration of any Hazardous Materials into the indoor or outdoor
environment (including, without limitation, the abandonment or disposal of any
barrels, containers or other closed receptacles containing any Hazardous
Materials), or into or out of any Property, including the movement of any
Hazardous Material through the air, soil, surface water, groundwater or
property.
"Reportable Event" means a "reportable event" within the
meaning of Section 4043 of ERISA (other than a "reportable event" for which the
30-day notice to PBGC requirement has been waived by regulation of PBGC).
"Requirement of Law" means, as to any Person, any law, treaty,
rule or regulation, or judgment, order, directive or other determination of any
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its properties or to which such Person
or any of its property is subject.
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"Responsible Officer" means, with respect to any matter
(including financial matters), the president, chief executive officer, chief
financial officer, executive vice president or treasurer of Borrower.
"Restricted Payment" means (a) every dividend or other
distribution of assets, properties, cash, rights, obligations or securities
paid, made, declared or authorized by Borrower or any of its Subsidiaries (other
than to Borrower) or in respect of any of the Common Shares, the Preferred
Shares or other equity securities of Borrower, or any class of Borrower's equity
securities, or for the benefit of holders of any thereof in their capacity as
such and (b) every payment by or for the account of Borrower or any of its
Subsidiaries in connection with the redemption, purchase, retirement, defeasance
or other acquisition of any Common Shares, Preferred Shares or other equity
securities of Borrower or options, warrants or other rights to acquire any of
Borrower's equity securities and (c) every payment (i) of principal, interest,
fees or other amounts in respect of any Indebtedness of Borrower or any of its
Subsidiaries to any Affiliate of Borrower, (ii) in respect of the redemption,
purchase, retirement, defeasance, or other acquisition from an Affiliate of
Borrower of any Indebtedness of Borrower, or (iii) of fees in respect of
advisory services rendered to Borrower or any of its Subsidiaries by the Advisor
and (d) every direct or indirect investment by Borrower (by means of capital
contribution, advance, loan or otherwise) in an Affiliate or any Person which
becomes an Affiliate after or as a result of such investment (but not including
investments by Borrower in its direct wholly-owned Subsidiaries), and (e) every
payment by or for the account of Borrower or any of its Subsidiaries in
connection with the redemption, purchase, retirement, defeasance or other
acquisition for value, directly or indirectly, prior to any scheduled maturity,
scheduled repayment or scheduled sinking fund payment, of Indebtedness which is
subordinate in right of payment to the Loans or the Notes.
"RMR" means REIT Management & Research, Inc., a Delaware
corporation.
"Solvent" means, with respect to any Person on a particular
date, that on such date (i) the fair value of the property of such Person is
greater than the total amount of liabilities, including, without limitation,
contingent liabilities, of such Person (whether or not required to be reflected
on a balance sheet prepared in accordance with GAAP), (ii) the present fair
salable value of the assets of such Person is not less than the amount that will
be required to pay the probable liability of such Person on its debts as they
become absolute and matured, (iii) such Person is able to realize upon its
assets and pay its debts and other liabilities, contingent obligations and other
commitments as they mature in the normal course of business,
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(iv) such Person does not intend to, and does not believe that it will, incur
debts or liabilities beyond such Person's ability to pay as such debts and
liabilities mature, and (v) such Person is not engaged in business or a
transaction for which such Person's property would constitute unreasonably small
capital after giving due consideration to the prevailing practice in the
industry in which such Person is engaged. In computing the amount of contingent
liabilities at any time, it is intended that such liabilities will be computed
at the amount which, in light of all the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
"Sublease Agreement" means any agreement pursuant to which a
Person subleases all, or a material portion, of a Property from a Tenant, as
such agreement is amended, supplemented or modified from time to time.
"Sublessees" means the sublessees in respect of the Sublease
Agreements, and each of them.
"Subordination Agreement" means the subordination agreement,
dated as of the date hereof substantially in the form attached hereto as Exhibit
D, among Administrative Agent, the Advisor and Borrower, as amended,
supplemented or modified from time to time in a manner not inconsistent with the
terms hereof.
"Subsidiary" means, as to any Person, a corporation,
partnership or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or other ownership
interests having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly, through one
or more intermediaries, or both, by such Person.
"Subsidiary Guarantor" means any Subsidiary of Borrower which
is party to the guarantee set forth in Section 9.
"Tangible Net Worth" means, with respect to Borrower and its
Subsidiaries, the excess of total assets over total liabilities of such Persons
on a consolidated basis, such total assets and total liabilities each to be
determined in accordance with Section 1.3(a), consistent with those applied in
the preparation of the financial statements referred to in Section 3.1;
excluding, however, from the determination of total assets (i) goodwill,
organizational expenses, capitalized software, research and development
expenses, trademarks, trade names, copyrights, patents, patent applications,
licenses and rights in any thereof, and other
-31-
similar intangibles, (ii) all prepaid expenses, deferred charges or unamortized
debt discount and expense, (iii) all reserves carried and not deducted from
assets, (iv) treasury stock and shares of beneficial interest and capital stock,
obligations or other securities of, or capital contributions to, or investments
in, any Subsidiary, (v) securities, other than the shares of stock of
Hospitality Properties Trust, which are not readily marketable, (vi) cash held
in a sinking or other analogous fund established for the purpose of redemption,
purchase, retirement, defeasance, acquisition or prepayment of Common Shares,
Preferred Shares or other equity securities, capital stock or Indebtedness,
(vii) any write-up in the book value of any asset resulting from a revaluation
thereof subsequent to December 31, 1997, (viii) leasehold improvements not
recoverable at the expiration of a Lease (to the extent that the useful life of
such improvements is greater than the term of such Lease), and (ix) any items
not included in clauses (i) through (viii) above which are treated as
intangibles in conformity with GAAP.
"Tenants" in respect of any Property, means the lessee(s) or
sublessee(s) (other than Borrower or any of its Subsidiaries) thereof.
"Termination Date" means April 15, 2002.
"Termination Event" means (i) a Reportable Event or an event
described in Section 4062(e) of ERISA, or (ii) the withdrawal of Borrower or any
ERISA Affiliate from a Multiple Employer Plan during a plan year in which it was
a "substantial employer", as such term is defined in Section 4001(a)(2) of
ERISA, or the incurrence of liability by Borrower or any ERISA Affiliate under
Section 4064 of ERISA upon the termination of a Multiple Employer Plan, (iii)
the filing of a notice of intent to terminate a Plan or the treatment of a Plan
amendment as a termination under Section 4041 of ERISA, (iv) the institution of
proceedings to terminate a Plan by the PBGC under Section 4042 of ERISA, (v) the
withdrawal of Borrower or any ERISA Affiliate from any Multiemployer Plan, or
(vi) any other event or condition which might constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan.
"Total Liabilities" of any Person means and includes, as of
any date as of which the amount thereof is to be determined, without duplication
(i) all items which in accordance with GAAP would be required to be included on
the liabilities side of a consolidated balance sheet of such Person at such date
and (ii) to the extent not otherwise included in (i) above, all Indebtedness of
such Person as of such date, determined on a consolidated basis and in
accordance with Section 1.3(a).
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"United Kingdom" means the United Kingdom of Great Britain and
Northern Ireland.
"U.S. Dollars" or "$" shall mean the lawful currency of the
United States of America.
"Year 2000 Issue" means any significant risk that computer
hardware or software used in Borrower's or its Subsidiaries' businesses or
operations will not, in the case of dates or time periods occurring after
December 31, 1999, function at least as effectively as in the case of dates or
time periods occurring prior to January 1, 2000.
1.2. Other Definitional Provisions.
a. All terms defined in this Agreement shall have the meanings
assigned to them herein when used in the Notes or any certificate or other
document made or delivered pursuant hereto, unless otherwise defined therein.
b. As used herein and in the Notes and other Loan Documents,
and any certificate or other document made or delivered pursuant hereto or
thereto, accounting terms not defined in Section 1.1, and accounting terms
partly defined in Section 1.1 to the extent not defined, shall have the
respective meanings given to them under GAAP.
c. The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section,
schedule and exhibit references are to this Agreement unless otherwise specified
and, where appropriate, the singular shall include the plural.
1.3 Certain Calculations: ▇▇▇▇-to Market
(a) Except in the circumstances set forth in Section 1.3(b),
for the purposes of determining the amount of outstanding Indebtedness, Total
Liabilities or any other indebtedness, obligations or liabilities of Borrower or
any of its Subsidiaries or any other Person, or the amount or value of any
investments or assets of or obligations owed to Borrower or any of its
Subsidiaries or any other Person, or the amount of any other item included in
income or cash flow statements of Borrower or any of its Subsidiaries or any
other Person (each of the foregoing being a "Calculation Item"), if such
Calculation Item is owed or otherwise recorded or measured in GBP or any other
currency other than U.S. Dollars, the amount or value of the Calculation Item
shall be calculated in U.S. Dollars and shall be the amount of U.S. Dollars that
can be purchased with GBP or such other currency calculated on the basis of
Administrative Agent's spot rate of exchange for the purchase of U.S. Dollars
with GBP or such other currency at approximately 11:00 a.m. (New York City time)
on the
-33-
date such calculation is to be made; provided that notwithstanding the
continuous nature of certain representations and covenants in this Agreement,
unless requested to do so by Agent or Administrative Agent or unless Borrower is
aware of any material currency movement or other circumstance which would be
reasonably likely to have an effect on its ability to satisfy any such
representation or covenant, Borrower shall not be required to make such
calculation with respect to such representations and covenants at any time other
than in connection with the delivery of a Real Property Statement or the
delivery of the certificate of a Responsible Officer under Section 5.2(b);
provided further that even if not required to make such calculations, nothing in
this Section 1.3(a) shall be construed to in any way limit Borrower's
obligations to satisfy all such representations and covenants in accordance with
their terms.
(b) Administrative Agent shall calculate the Equivalent Amount
of Loans denominated in GBP: (i) after any Borrowing Date on which Loans are
made such that the aggregate principal amount of Loans outstanding exceeds 75%
of the Commitments and if requested by Agent or if Administrative Agent in the
reasonable exercise of its judgment considers it desirable to make such
calculation to monitor compliance by Borrower with the limits set forth in
Section 2.1, on the final Business Day of each Interest Period for each Loan
denominated in GBP or otherwise as often as Administrative Agent considers it
desirable or necessary to make such calculation and Administrative Agent shall
notify Borrower and Agent if, based on such calculation, Borrower is in
compliance with the requirements of Section 2.1 as to the maximum aggregate
outstanding principal amount of Loans denominated in GBP or whether prepayment
of the Loans is necessary as required by Section 2.8(e); (ii) on any proposed
Borrowing Date to determine whether, after giving effect to a proposed
borrowing, Borrower will be in compliance with such requirements of Section 2.1;
and (iii) on any proposed continuation/conversion date under Section 2.5 to
determine whether, after giving effect to such proposed continuation/conversion,
Borrower will be in compliance with such requirements of Section 2.1; provided
that any failure by Administrative Agent to make such calculations or provide
the information under this Section 1.3(b) shall not affect the obligations of
Borrower to comply with the limits set forth in Section 2.1 or otherwise to
satisfy all representations and covenants made by it in this Agreement.
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SECTION 2.AMOUNT AND TERMS OF REVOLVING LOANS
2.1. Revolving Loans.
a. Each Lender severally (and not jointly) agrees, subject to
the terms and conditions hereof, to continue the Existing Loans outstanding on
the Effective Date, to make Loans to Borrower from time to time during the
period from the Effective Date to and including the Final Borrowing Date, and to
maintain its Loans outstanding to Borrower on the Final Borrowing Date from such
date until the Termination Date, up to an aggregate amount (including, without
limitation, the amount of any Existing Loans) or the Equivalent Amount in GBP at
any one time not exceeding its Pro Rata Share of the aggregate Commitments (as
defined below) to be used for the purposes identified in Section 2.11; provided
that in no event shall the aggregate outstanding principal amount of Loans
denominated in GBP at any time exceed the Equivalent Amount of $100,000,000 (as
determined in accordance with Section 1.3(b)). Each Loan hereunder shall be made
by Lenders in accordance with their respective Pro Rata Share. Upon satisfaction
of the conditions set forth in Section 4, (i) all loans outstanding under the
Existing Loan Agreement as of, and at the time of, the Effective Date ("Existing
Loans") and all rights relating to the Existing Loans and all other rights
arising under the Existing Loan Agreement and all documents relating thereto,
except to the extent specifically amended and restated by this Agreement, shall
be assigned (without any further action or authorization being required) by the
lenders under the Existing Loan Agreement to the Lenders proportionately to
their respective Pro Rata Shares of the Commitments without recourse,
representation or warranty (except for representations and warranties made in
this Section 2.1(a)) of any nature, express or implied, by any such lender and
such Existing Loans shall be continued and deemed to be Loans for all purposes
under this Agreement and (ii) each Lender shall pay to Administrative Agent its
Pro Rata Share of the Existing Loans or, if less, the amount by which such Pro
Rata Share exceeds its outstanding Existing Loans (if any), for distribution to
the lenders under the Existing Loan Agreement that are not Lenders and to the
other Lenders that have funded such Loans, in accordance with their respective
Commitments, and each Lender's share of the Existing Loans shall be adjusted
accordingly. In connection with such assignment, each Lender shall be deemed to
represent and warrant to each other Lender that (i) it is, and will be on the
Effective Date, prior to the assignment of its interests pursuant to this
Section 2.1(a), the legal and beneficial owner of the interests being assigned
and such interests are, and will be on the Effective Date, free and clear of any
adverse claim and (ii) the total aggregate principal amount and accrued
interest, fees and other amounts due to such Lender under the Existing Loan
Agreement on the Effective Date are as set forth on Schedule 3 annexed hereto.
Any amounts of accrued interest, commitment fees or other amounts (other than
principal) owed (whether or not presently due and payable) by Borrower to the
lenders under or in respect of the Existing Loans shall, as of the Effective
Date, be deemed to be due
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and payable to the lenders under the Existing Loan Agreement. The continuation
of the Existing Loans hereunder shall not be deemed to be a repayment thereof,
and Borrower shall not be required to deliver any notice of prepayment or notice
of borrowing or to satisfy any condition relating to minimum amounts of
prepayments or minimum amounts of borrowings hereunder with respect to such
continuance of the Existing Loans.
b. Each Lender's commitment to make and maintain Loans to
Borrower pursuant to this Section 2.1 is herein called its "Commitment" and such
commitments of all Lenders in the aggregate are herein called the "Commitments".
The original amount of each Lender's Commitment is set forth opposite its name
on Schedule 1 annexed hereto and the aggregate original amount of the
Commitments is $500,000,000; provided that up to an Equivalent Amount of
$100,000,000 may be made in Loans denominated in GBP (as determined in
accordance with Section 1.3(b)); provided further that the amount of the
Commitments shall be reduced from time to time by the amount of any reductions
thereto made pursuant to Section 2.7 (with a proportionate reduction of the
amount of the Commitments otherwise available for the borrowing of Loans
denominated in GBP); provided further that Lenders shall have no obligation to
make or maintain Loans hereunder to the extent any such Loan would cause the
aggregate amount of the Loans then outstanding to exceed the Commitments;
provided further that Lenders shall have no obligation to make or maintain Loans
denominated in GBP hereunder to the extent any such Loan would cause the
aggregate amount of the Loans denominated in GBP then outstanding to exceed the
Equivalent Amount of $100,000,000 (as determined in accordance with Section
1.3(b).
c. Each Lender's Commitment shall expire on the Termination
Date and all Loans and all other amounts owed hereunder with respect to the
Loans and the Commitments shall be paid in full no later than that date.
d. Subject to the other terms and conditions hereof, Borrower
may borrow under this Section 2.1, repay Loans in accordance with Section 2.10
or prepay Loans in accordance with Section 2.8 and reborrow the amounts so
repaid under this Section 2.1.
2.2. Notes; Maturity Date. The Loans of each Lender pursuant
hereto shall be evidenced by, and be repayable with interest in accordance with
the terms of, a promissory note of Borrower substantially in the form of Exhibit
A, with appropriate insertions, payable to the order of such Lender in the
principal amount of the Commitment of such Lender (together with any
replacement, modification, renewal or substitution thereof, individually a
"Note" and collectively, the "Notes"), which shall be dated the Effective Date
and be duly completed, executed and delivered by Borrower. The Loans of each
Lender pursuant hereto shall be made and maintained by such Lender's Lending
Office(s) as designated by such Lender from time to time. All outstanding Loans
and each of the Notes shall mature and Borrower shall repay the
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outstanding principal amount of such Loans and the Notes in full together with
all unpaid interest accrued thereon on the Termination Date (or earlier as
hereinafter provided) (or if such day is not a Business Day, the next preceding
Business Day) all in accordance with Section 2.10(b), and shall be subject to
payment and prepayment as provided in Section 2.8 hereof. Each Lender is
authorized to endorse at any time the date and amount of each Loan or conversion
or continuation thereof, the date and amount of each payment of principal with
respect to its Loans and whether its Loans are Base Rate Loans, Eurocurrency
Loans or Alternate Rate Loans, on the schedule annexed to and constituting a
part of such Lender's Note, which endorsement shall constitute prima facie
evidence of the accuracy of the information endorsed.
2.3. Procedure for Borrowing.
a. Whenever Borrower desires to borrow under Section 2.1, it
shall deliver a Notice of Borrowing to Administrative Agent no later than 11:00
A.M. (New York time) in the case of Base Rate Loans at least one Business Day
and in the case of Eurocurrency Loans at least three Business Days in advance of
the proposed Borrowing Date. The Notice of Borrowing shall specify (i) the
proposed Borrowing Date (which shall be a Business Day), (ii) whether such Loans
are to be denominated in U.S. Dollars or, subject to the limit in Section 2.1,
GBP, (iii) the amount of the Loans requested (which amount shall be in a minimum
aggregate amount of $1,000,000 and integral multiples of $500,000 in excess of
that amount if the Loans are to be denominated in U.S. Dollars or a minimum
aggregate amount of GBP 1,000,000 and integral multiples of GBP 500,000 in
excess of that amount if the Loans are to be denominated in GBP), (iv) whether
such Loans will be Base Rate Loans or Eurocurrency Loans and, if Eurocurrency
Loans are specified, the initial Interest Period requested for such Eurocurrency
Loans, (v) the account of Borrower to which the net proceeds of the requested
Loans are to be credited, (vi) that the representations and warranties contained
in the Loan Documents are true, correct and accurate in all material respects to
the same extent as though made on and as of the date of such Notice of Borrowing
unless stated in the relevant Loan Document to relate to a specific earlier
date, in which case such representations and warranties shall be true, correct
and complete in all material respects as of such earlier date, (vii) that no
event has occurred and is continuing or would result from the proposed borrowing
that would constitute a Default or Event of Default, and (viii) that the amount
of the proposed borrowing will not cause (A) the aggregate outstanding principal
amount of the Loans to exceed the Commitments currently in effect or (B) the
aggregate amount of the Loans denominated in GBP then outstanding to exceed the
Equivalent Amount of $100,000,000 (as determined in accordance with Section
1.3(b)).
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In lieu of delivering the above-described Notice of Borrowing,
Borrower may give Administrative Agent telephonic notice (which telephonic
notice shall be followed immediately with a notice by facsimile telecopy) by the
time specified for a Notice of Borrowing above; provided that such notice shall
be promptly confirmed in writing by delivery of a Notice of Borrowing to
Administrative Agent on or before the applicable Borrowing Date; provided
further that in the event of a discrepancy between a Notice of Borrowing and
such telephonic notice, the telephonic notice shall govern. Except as otherwise
provided in Sections 2.13 and 2.14, a Notice of Borrowing (or telephonic notice
in lieu thereof as provided above) shall be irrevocable, and Borrower shall be
bound to make the borrowing specified in such Notice of Borrowing (or telephonic
notice in lieu thereof as provided above) in accordance therewith.
None of Agent, Administrative Agent or any Lender shall incur
any liability to any Person (including Borrower or any of its Subsidiaries) in
acting upon any telephonic notice referred to above that Administrative Agent or
Agent believes in good faith to have been given by a duly authorized officer or
other Person authorized to borrow on behalf of Borrower or otherwise acting in
good faith under this Section 2.3, and upon funding of Loans by Lenders in
accordance with this Agreement pursuant to any such telephonic notice Borrower
shall have effected the borrowing of such Loans hereunder.
b. All Loans under this Agreement shall be made by Lenders
simultaneously and proportionately to their respective Pro Rata Shares of the
Commitments, it being understood that no Lender shall be responsible for any
default by any other Lender in that other Lender's obligation to make Loans
requested hereunder nor shall the Commitment of any Lender to make Loans
requested hereunder be increased or decreased as a result of a default by any
other Lender in that other Lender's obligation to make Loans requested
hereunder. Promptly after receipt by Administrative Agent of a Notice of
Borrowing pursuant to Section 2.3(a) (or telephonic notice in lieu thereof
followed immediately with a notice by facsimile telecopy) and in any event not
later than 2:00 p.m. (New York time) on the preceding Business Day (in the case
of Base Rate Loans) or at least three Business Days (in the case of Eurocurrency
Loans) in advance of the proposed Borrowing Date, Administrative Agent shall
notify each Lender of the relevant details of the proposed borrowing. Each
Lender shall make the amount of its Loan available to Administrative Agent, in
immediately available funds, at the account specified by Administrative Agent to
the Lenders, not later than 11:00 A.M. (New York time) on the Borrowing Date
specified in the applicable Notice of Borrowing. Upon satisfaction or waiver of
the applicable conditions precedent specified in Sections 4.1 and 4.2,
Administrative Agent shall make the proceeds of such Loans
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available to Borrower on such Borrowing Date by causing an amount of immediately
available funds equal to the proceeds of all such Loans received by
Administrative Agent from Lenders to be credited to the account specified by
Borrower in the Notice of Borrowing.
Unless Administrative Agent shall have been notified by any
Lender prior to the Borrowing Date for any Loans that such Lender does not
intend to make available to Administrative Agent the amount of such Lender's
Loan requested on such Borrowing Date (and any such notice shall be without
prejudice to any rights of Borrower against such Lender hereunder),
Administrative Agent may assume that such Lender has made such amount available
to Administrative Agent on such Borrowing Date and Administrative Agent may, in
its sole discretion, but shall not be obligated to, make available to Borrower a
corresponding amount on such Borrowing Date. If such corresponding amount is not
in fact made available to Administrative Agent by such Lender, Administrative
Agent shall be entitled to recover such corresponding amount on demand from such
Lender together with interest thereon, for each day from such Borrowing Date
until the date such amount is paid to Administrative Agent, at the Base Rate in
the case of Loans denominated in U.S. Dollars or at the Alternate GBP Rate in
the case of Loans denominated in GBP. If such Lender does not pay such
corresponding amount forthwith upon Administrative Agent's demand therefor,
Administrative Agent shall promptly notify Borrower and Borrower shall
immediately pay such corresponding amount to Administrative Agent together with
interest thereon, for each day from such Borrowing Date until the date such
amount is paid to Administrative Agent, at the Base Rate in the case of Loans
denominated in U.S. Dollars or at the Alternate GBP Rate in the case of Loans
denominated in GBP. Nothing in this Section 2.3 shall be deemed to relieve any
Lender from its obligation to fulfill its Commitments hereunder or to prejudice
any rights that Borrower may have against any Lender as a result of any default
by such Lender hereunder.
2.4. Interest.
a. Generally. Each Loan shall be a Eurocurrency Loan or a Base
Rate Loan as selected by Borrower initially at the time a Notice of Borrowing is
given pursuant to Section 2.3(a) or as selected pursuant to Section 2.5 (or, in
the case of any Existing Loans, as in effect on the Effective Date), except for
any portion of a Eurocurrency Loan which is converted to an Alternate Rate Loan
pursuant to Section 2.13 or 2.14. Loans shall bear interest on the unpaid
principal amount thereof from the date made (or, in the case of any Existing
Loans, from the Effective Date) to maturity (whether by accelerations or
otherwise), at the interest rates specified as follows:
(i) in the case of a Eurocurrency Loan, at an interest rate
per annum for and during each Interest Period equal to the LIBO Rate
for such Interest Period plus the Applicable Margin in effect from time
to time;
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(ii) in the case of a Base Rate Loan, at an interest rate per
annum equal to the Base Rate in effect from time to time plus the
Applicable Margin in effect from time to time; and
(iii) in the case of an Alternate Rate Loan (including any
Alternate GBP Rate Loan), at an interest rate per annum equal to the
Alternate Rate in effect from time to time plus the Applicable Margin
in effect from time to time,
plus, in the case of any Loan denominated in GBP and made by a
Lender subject to such requirements, Mandatory Liquid Asset Costs.
Borrower shall pay interest on the unpaid principal amount of the Loans
outstanding from time to time, in arrears, (i) on each Interest Payment Date,
(ii) on the Termination Date, (iii) in the currency required by Section 2.10(b)
and (iv) in accordance with Section 2.4(b) (where applicable). In addition,
Borrower shall pay accrued interest on the principal amount of any Loans prepaid
in accordance with Section 2.8 on the date of any such prepayment.
b. Default Interest. If Borrower shall default in the payment
of the principal of or interest on any portion of a Loan or any other amount
becoming due hereunder or under any of the Loan Documents, Borrower shall on
demand from time to time pay interest (to the extent permitted by law in the
case of interest on overdue interest) on such defaulted amount accruing from and
including the date of such default (without reference to any period of grace) up
to and including the date of actual payment (after as well as before judgment)
at a rate per annum which is the sum of (i) two percent (2%) plus (ii) the
greatest of the LIBO Rate, the Alternate Rate or the Base Rate plus (iii) the
Applicable Margin. Interest under this Section 2.4(b) shall be payable upon
demand.
c. Interest Determination. Upon determining the LIBO Rate for
each Interest Period, the Alternate Rate for any period or the Base Rate in
effect from time to time, Administrative Agent shall promptly notify Borrower
and Lenders thereof by telephone (confirmed promptly in writing) or in writing.
Such determination shall, in the absence of manifest error, be conclusive and
binding upon Borrower and the Lenders.
2.5. Duration of Interest Period; Notice of
Continuation/Conversion.
a. Borrower may, pursuant to the applicable Notice of
Borrowing or Notice of Continuation/Conversion, as the case may be, select an
Interest Period to be applicable to each Eurocurrency Loan.
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b. Subject to the provisions of Sections 2.13 and 2.14,
Borrower shall have the option (i) to convert at any time all or any part of
outstanding Base Rate Loans to Eurocurrency Loans or (ii) upon the expiration of
any Interest Period applicable to Eurocurrency Loans, to continue all or any
portion of such Loans as Eurocurrency Loans or convert all or any portion of
such Loans to Base Rate Loans, as the case may be, and the succeeding Interest
Period(s) of such continued Loans shall commence on the most recent Interest
Payment Date therefor; provided that Loans may be continued as, or converted
into, Eurocurrency Loans with a particular Interest Period only in an aggregate
amount equal to $1,000,000 and integral multiples of $500,000 in excess of that
amount if the Loans are to be denominated in U.S. Dollars or a minimum aggregate
amount of GBP 1,000,000 and integral multiples of GBP 500,000 in excess of that
amount if the Loans are to be denominated in GBP (but subject always to the
determinations described in Section 1.3(b) and the limits in Section 2.1 for
Loans denominated in GBP); provided further that Eurocurrency Loans or any
portion thereof may only be converted into Base Rate Loans on the expiration
date of the Interest Period(s) applicable thereto; and provided further that (i)
no event has occurred and is continuing or would result from such Loan
continuation/conversion that would constitute a Default or Event of Default, and
(ii) the representations and warranties contained in Section 3 shall be true,
correct and complete in all material respects on and as of the proposed
continuation/conversion date to the same extent as though made on and as of that
date unless stated in such section to relate to a specific earlier date, in
which case such representations and warranties shall be true, correct and
complete in all material respects as of such earlier date. All conversions and
continuations of Loans shall be made simultaneously and on a pro rata basis by
the Lenders in accordance with their respective Pro Rata Shares.
Borrower shall deliver a Notice of Continuation/Conversion to
Administrative Agent no later than 11:00 A.M. (New York City time) at least
three Business Days in advance of the proposed continuation/conversion date (in
the case of a conversion to, or a continuation of, Eurocurrency Loans) or at
least three Business Days in advance of the proposed conversion date (in the
case of a conversion to Base Rate Loans). A Notice of Continuation/Conversion
shall specify (i) the proposed continuation/conversion date (which shall be a
Business Day), (ii) the amount of the Loans to be continued/converted, (iii) the
nature of the proposed continuation/conversion, (iv) in the case of a
continuation of, or conversion to, Eurocurrency Loans, the requested Interest
Period, (v) that the representations and warranties contained in the Loan
Documents are true, correct and accurate in all material respects to the same
extent as though made on and as of the date of such Notice of Continuation/
Conversion
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unless stated in such Loan Documents to relate to a specific earlier date, in
which case such representations and warranties shall be true, correct and
complete in all material respects as of such earlier date, and (vi) that no
event has occurred and is continuing or would result from the proposed
continuation/conversion that would constitute a Default or Event of Default. In
lieu of delivering the above-described Notice of Continuation/Conversion,
Borrower may give Administrative Agent telephonic notice by the time specified
for delivery of a Notice of Continuation/Conversion above (which telephonic
notice shall be followed immediately with a notice by facsimile telecopy);
provided that in the event of a discrepancy between a Notice of
Continuation/Conversion and such telephonic notice, such telephonic notice shall
govern.
Promptly after receipt by Administrative Agent of a Notice of
Continuation/Conversion pursuant to this Section 2.5 (or telephonic notice
followed immediately with a notice by facsimile telecopy), and in any event not
later than 2:00 p.m. (New York time) at least three Business Days in advance of
the proposed continuation/conversion date, Administrative Agent shall notify
each Lender of the relevant details of the proposed continuation/conversion.
None of Agent, Administrative Agent or any Lender shall incur
any liability to any Person (including Borrower) in acting upon any telephonic
notice referred to above that Administrative Agent or Agent believes in good
faith to have been given by a duly authorized officer or other person authorized
to act on behalf of Borrower or for otherwise acting in good faith under this
Section 2.5, and upon the continuation and/or conversion (as applicable) of any
Loan in accordance with this Agreement pursuant to any such telephonic notice,
Borrower shall have effected a continuation and/or conversion (as applicable)
hereunder of such Loan.
Except as otherwise provided in Sections 2.13 and 2.14, a
Notice of Continuation/Conversion (or telephonic notice in lieu thereof) shall
be irrevocable from and after the giving thereof, and Borrower shall be bound to
effect a continuation and/or conversion (as applicable) in accordance therewith.
2.6. Fees.
a. Borrower shall pay to Administrative Agent for the account
of each Lender, in accordance with its Pro Rata Share of the Commitments, a
facility fee in an amount equal to the Applicable Facility Fee Percentage of the
average daily balance of such Lender's Commitment in respect of each quarterly
period during the period from the date hereof to but excluding the Final
Borrowing Date. Borrower shall pay to Administrative Agent for the
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account of each Lender, in accordance with its Pro Rata Share of the
Commitments, a facility fee in an amount equal to the Applicable Facility Fee
Percentage of the average daily balance of such Lender's Loans in respect of
each quarterly period during the period from the Final Borrowing Date to but
excluding the Final Repayment Date. Such fees shall be calculated quarterly and
be payable in arrears on (x) the last Business Day of March, June, September and
December of each year until the Final Repayment Date and (y) the Final Repayment
Date, and accrue from the Effective Date to and excluding the Final Repayment
Date and be payable in U.S. Dollars as required by Section 2.10(b).
b. Borrower shall pay to Administrative Agent such other fees
in the amounts and at the times separately agreed upon between Borrower and
Agent or between Borrower, Agent and Administrative Agent.
2.7. Termination or Reduction of Commitment. Borrower shall
have the right, upon not less than five Business Days' notice to Administrative
Agent, to terminate the Commitments or, from time to time, to reduce pro rata
the amount of the Commitments, to the extent, in either case, that the
Commitments are undrawn. Any such reduction shall be in an amount of $1,000,000
or any integral multiple thereof and shall reduce permanently the aggregate
amount of the Commitments then in effect, with a proportionate reduction of the
amount of the Commitments otherwise available for the borrowing of Loans
denominated in GBP.
2.8. Optional Prepayments; Mandatory Prepayments.
a. Subject to Sections 2.8(f) and 2.15, Borrower may, at its
option, prepay any Loans on any Business Day in whole or in part, without
premium, upon at least three Business Days', in the case of Eurocurrency Loans,
or one Business Day's, in the case of Base Rate Loans, prior written notice to
Administrative Agent, specifying the amount of prepayment. Each notice of
prepayment pursuant to this clause (a) shall be irrevocable and the payment
amount specified in such notice shall be due and payable on the date specified
in the currency required by Section 2.10(b), together with accrued interest to
such date on the Loans and all amounts (if any) payable pursuant to Section
2.15. Partial prepayments of the Loans pursuant to this clause (a) shall be in
an aggregate principal amount of $1,000,000 (or GBP 1,000,000) or integral
multiples of $500,000 (or GBP 500,000) in excess of that amount.
b. In the event of any sale or other disposition of any
interest in any Property, any Lease termination, or any other event giving rise
to Net Property Proceeds or Net Mortgage Proceeds, on the earlier of (x) the
final Business Day of the first Interest Period to expire after the closing of
such sale or other disposition, or, if such closing occurs at a time when there
are no Eurocurrency Loans outstanding, on the final Business Day of the
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month during which such closing occurs, or (y) the date of an Event of Default,
Borrower shall apply an amount equal to all of such Net Property Proceeds and
Net Mortgage Proceeds (other than any amount thereof required and used to
satisfy Indebtedness secured by a Lien, not inconsistent with the terms of this
Agreement, on the relevant Properties or Mortgage Interests) to the prepayment
of the Loans; provided that (i) with respect to a particular transaction or a
related series of transactions giving rise to Net Property Proceeds or Net
Mortgage Proceeds, prepayment of the Loans shall be required from such Net
Property Proceeds or Net Mortgage Proceeds only to the extent that the same
exceed $5,000,000; (ii) that no prepayment shall be required in respect of Loans
denominated in GBP to the extent the aggregate outstanding principal amount of
such Loans does not exceed the Allowed Value of Eligible Properties and Eligible
Mortgages in respect of Properties located in the United Kingdom acquired with
or funded with GBP; and (iii) Borrower shall provide written notice to the
Administrative Agent on the date of such closing of such sale or other
disposition in excess of $5,000,000 which sets forth the amount of such Net
Property Proceeds and Net Mortgage Proceeds.
c. In the event of any (i) public or private offering by or on
behalf of Borrower of debt or equity securities issued by Borrower or (ii)
incurrence by Borrower of Indebtedness to one or more financial institutions, on
the earlier of (x) the final Business Day of the first Interest Period to expire
after the closing of such issuance or incurrence, or if such closing occurs at a
time when there are no Eurocurrency Loans outstanding, on the final Business Day
of the month during which such closing occurs, or (y) the date of an Event of
Default, Borrower shall apply all Net Securities/Debt Proceeds arising from such
offering or incurrence to the prepayment of the Loans or, at the option of
Borrower, to the prepayment of other Indebtedness of Borrower outstanding on the
Effective Date; provided that (i) no prepayment shall be required in respect of
Loans denominated in GBP to the extent the aggregate outstanding principal
amount of such Loans does not exceed the Allowed Value of Eligible Properties
and Eligible Mortgages in respect of Properties located in the United Kingdom
acquired with or funded with GBP; and (ii) Borrower shall provide written notice
to the Administrative Agent on the date of such closing of such issuance or
incurrence which sets forth the amount of such Net Securities/Debt Proceeds.
d. The Loans shall be subject to certain mandatory prepayments
pursuant to and upon the occurrence of the events described in the provisions of
Sections 2.13 and 2.14.
e. If at any time the principal balance of the Loans exceeds
the Commitments, Borrower shall promptly (and in any event no later than two
Business Days after becoming aware thereof) repay Loans to the extent necessary
to reduce the aggregate outstanding principal amount thereof to an amount that
is equal to or less than the Commitments. If at any time the principal balance
of the Loans denominated in GBP exceeds the Equivalent Amount of $100,000,000
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(as determined in accordance with Section 1.3(b)), Borrower shall promptly (and
in any event no later than two Business Days after becoming aware thereof) repay
Loans denominated in GBP to the extent necessary to reduce the aggregate
outstanding principal amount thereof to an amount that is equal to or less than
the Equivalent Amount in GBP of $100,000,000; provided that, so long as no
Default or Event of Default has occurred and is continuing, any such repayment
of the Loans denominated in GBP may be made at the end of the applicable
Interest Periods on condition that Borrower deposits with Administrative Agent
cash in an amount equal to the amount of the required prepayment at the time
otherwise required for prepayment (such amounts to be held as cash collateral by
Administrative Agent pending such repayment on terms satisfactory to Agent,
Administrative Agent and Borrower).
f. Subject to the application of the payment provisions of
Section 2.10(a), any prepayments of the Loans pursuant to this Section, Sections
2.13 or 2.14, or any other provision of any Loan Document shall be applied first
to any amounts payable with respect thereto pursuant to Section 2.15, second to
the payment of accrued and unpaid interest on the principal amount of all other
outstanding Loans up to and including the date of prepayment, and third to the
principal amount of all other outstanding Loans. Subject to the requirements of
the preceding sentence, Borrower may designate the application of any
prepayments, to be applied to principal on the Loans, to the Eurocurrency Loans,
Base Rate Loans and/or Alternate Rate Loans, as it may select, provided that if
Borrower does not designate such application, such prepayments shall be applied
(x) first to outstanding Base Rate Loans, (y) second to outstanding Alternate
Rate Loans and (z) third to outstanding Eurocurrency Loans.
2.9. Computation of Interest and Fees. Fees and other amounts
other than interest calculated on the basis of a rate per annum shall be
computed on the basis of a 360-day year for the actual days elapsed. Interest on
the Base Rate Loans and on the Alternate Rate Loans, in each case, calculated by
reference to the prime rate and interest on the Eurocurrency Loans denominated
in GBP shall be computed on the basis of a 365-day year for the actual days
elapsed, while interest on the Eurocurrency Loans denominated in U.S. Dollars
and interest on the Alternate Rate Loans and the Base Rate Loans, in each case,
where interest is not calculated by reference to the prime rate, shall be
computed on the basis of a 360-day year for the actual days elapsed.
2.10.Payments and Currency. (a) Except as contemplated by this
Agreement, the borrowing by Borrower from the Lenders, each payment (including
each prepayment) by Borrower on account of principal, interest and fees required
under Sections 2.6(a) and (b), and any reduction of the amount of the
Commitments of the Lenders hereunder, shall be made for the account of each
Lender according to its Pro Rata Share (except for fees payable solely for the
account of the Agent or the
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Administrative Agent pursuant to Section 2.6(b)), provided that payments to the
Lenders of interest based upon the Alternate Rate shall be allocated
appropriately to give effect to differences among the Lenders' respective costs
of funds. All payments (including prepayments) by Borrower on account of
principal, interest, fees, costs, indemnities or other amounts payable hereunder
or under any of the Loan Documents shall be made to Administrative Agent for the
account of the applicable Lenders at the account of Administrative Agent
specified in Section 10.3(b) and in immediately available funds in the currency
required by Section 2.10(b). Each payment or prepayment hereunder and under the
Notes and the other Loan Documents shall be made without set-off or counterclaim
and free and clear of, and without deduction for, any present or future
withholding or other taxes, duties or charges of any nature imposed on or
attributable to such payments or prepayments by or on behalf of any Governmental
Authority, except for any Excluded Taxes. If any such taxes (other than any
Excluded Taxes), duties or charges (including, without limitation, any tax, duty
or charge imposed by Sections 1, 2 and/or 39 of the Massachusetts General Laws,
Chapter 63, as currently in effect or as amended hereafter or any analogous
provisions (or provisions having an analogous effect) of the laws, rules or
regulations (or interpretations thereof) of Massachusetts or any other
Governmental Authority) are so levied or imposed on or are attributable to any
such payment or prepayment, Borrower will make additional payments in such
amounts as may be necessary so that the net amount received by a Lender, after
withholding or deduction for or on account of all such taxes, duties or charges,
will be equal to the amount provided for herein or in such Lender's Note or in
any of the other Loan Documents. Whenever any taxes, duties or charges are
payable by Borrower with respect to or attributable to any payments or
prepayments hereunder or under any of the Notes or any other Loan Document,
Borrower agrees to furnish promptly to Administrative Agent for the account of
the applicable Lender official receipts or copies thereof, if reasonably
available, evidencing payment of any such taxes, duties or charges so withheld
or deducted. If Borrower fails to pay any such taxes, duties or charges when due
to the appropriate taxing authority after receipt of notice that any such taxes,
duties or charges are due, or fails to remit to Administrative Agent for the
account of the applicable Lender the customary evidence of payment of any such
taxes, duties or charges so withheld or deducted, Borrower shall indemnify the
affected Lender for any incremental taxes, duties, charges, interest or
penalties that may become payable by such Lender as a result of any such
failure. During the continuance of any Default, Administrative Agent may, but
shall be under no obligation to, apply all payments received by Administrative
Agent from Borrower pursuant to any of the Loan Documents in the following order
of payment regardless of the application designated by Borrower: first to any
interest owing under Section 2.4(b) or
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under any of the Loan Documents other than interest owing on the Loans and the
Notes referred to below, second to any fees then payable to Agent,
Administrative Agent or the Lenders, third to any amounts owing pursuant to
Section 10.7, fourth to any amounts owing pursuant to Sections 2.13, 2.14 or
2.15, fifth to any other sums (other than principal on the Loans and the Notes
and interest thereon referred to below) owing under any of the Loan Documents,
sixth to any interest owing on the Loans and Notes and seventh to the repayment
of the principal of the Loans and the Notes as designated by Administrative
Agent; provided that if such application is other than in accordance with any
express designation by Borrower, Administrative Agent shall promptly notify
Borrower of such application. Administrative Agent will distribute each payment
to the applicable Lenders promptly upon receipt thereof (and in any event on the
same Business Day as the date when received, if such payment is received at or
prior to 12:00 noon (New York time)). Each payment by Administrative Agent to a
Lender shall be made for the account of such Lender's Lending Office as
designated by such Lender to Administrative Agent in writing from time to time.
Whenever any payment to be made hereunder or under any Loan Document, including,
without limitation, any principal of or interest on any Loan, shall become due
and payable, or whenever the last day of any Interest Period would otherwise
occur, on a day which is not a Business Day, such payment shall be made and the
last day of such Interest Period shall occur on the next succeeding Business Day
and such extension of time shall in such case be included in computing interest
on such payment; provided that if such extension would cause any such payment to
be made in the next succeeding calendar month, or the last day of such Interest
Period to occur in the next succeeding calendar month, such payment shall be
made, and the last day of such Interest Period shall occur, on the next
preceding Business Day.
(b) A repayment or prepayment of a Loan or any part of a Loan
is payable in the currency in which the Loan was denominated at the time at
which such Loan was made to Borrower by Lenders. Interest in respect of a Loan
is payable in the currency in which the principal portion of the respective Loan
in respect of which it is payable is denominated. Fees in respect of Commitments
or otherwise hereunder shall be payable in U.S. Dollars. Amounts payable in
respect of costs, expenses and taxes and the like are payable in the currency in
which they are incurred. Any other amount payable under this Agreement is,
except as otherwise provided in this Agreement, payable in U.S. Dollars.
2.11.Use of Proceeds. The proceeds of the Loans hereunder
shall be used by Borrower subject to the provisions of Section 5.4 hereof
(either directly or indirectly through intercompany advances of such proceeds to
its Subsidiaries; provided that no Subsidiary which is not a Subsidiary
Guarantor may receive any such proceeds) for (a) the acquisition of Properties,
(b) the acquisition or funding of Mortgage Interests, or (c) general corporate
purposes.
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2.12.Increased Costs.
a. If any Requirement of Law or other event or condition, or
any amendment, modification or interpretation thereof (including, without
limitation, any request, recommendation, guideline or policy, whether or not
having the force of law, of or from any central bank or other Governmental
Authority), in any such case, adopted, effective, made or issued after the date
hereof (but in any event including, without limitation, Regulation D and Section
1, 2 and/or 39 of the Massachusetts General Laws, Chapter 63 as currently in
effect or as amended hereafter or any analogous provisions (or provisions having
an analogous effect) of the laws, rules or regulations (or interpretations
thereof) of Massachusetts or any other Governmental Authority) by any authority
charged with the administration or interpretation thereof:
(i) subjects Agent, Administrative Agent or any
Lender or any branch or Affiliate of Agent, Administrative Agent or
such Lender to any tax (except Excluded Taxes), fee, deduction, duty,
withholding, levy, impost or other charge or reduction of any nature,
on or with respect to, or which Agent, Administrative Agent or such
Lender in its sole discretion deems applicable or attributable to this
Agreement, any Note, any of the other Loan Documents, its Commitment or
its pro rata share of the Loans, or interest, fees or other amounts
attributable thereto or to any of the foregoing; or
(ii) changes the basis of taxation of payments to
any Lender or any branch or Affiliate of such Lender of principal of
and/or interest on such share of the Loans and/or other fees and
amounts payable hereunder or under any of the Loan Documents or with
respect hereto or thereto (including in any event imposition of or
change in any withholding taxes, but excluding any Excluded Taxes); or
(iii) imposes upon, modifies, requires, makes or
deems applicable to any Lender, or any of its branches or Affiliates,
any regular, special, supplementary or other reserve or deposit
requirement, insurance assessment or similar requirement against or
affecting any assets held by, or liabilities of, or deposits with or
for the account of, such Lender or such branch or Affiliate, with
respect to or which Agent or such Lender in its sole discretion deems
applicable or attributable to this Agreement, any Note, any of the
other Loan Documents, its Commitment or its pro rata share of the
Loans, or interest, fees or other amounts attributable thereto or to
any of the foregoing; or
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(iv) imposes, modifies or deems applicable any
condition or requirement upon or causes in any manner the addition of
any supplement to, or increase of any kind to, the capital or cost base
of Agent, Administrative Agent or any Lender or such branch or
Affiliate, for extending or maintaining its Commitment or its pro rata
share of the Loans which results in an increase in the capital
requirement supporting such Commitment or its pro rata share of the
Loans, or imposes upon, modifies, requires, makes or deems applicable
to Agent, Administrative Agent or such Lender or any such branch or
Affiliate any capital requirement, increased capital requirement or
similar requirement, with respect to or which Agent, Administrative
Agent or such Lender in its sole discretion deems applicable or
attributable to this Agreement, any Note, any of the other Loan
Documents, its Commitment or its pro rata share of the Loans, or
interest, fees or other amounts attributable thereto or to any of the
foregoing; or
(v) imposes upon Agent, Administrative Agent or any
Lender or any branch or Affiliate of Agent, Administrative Agent or
such Lender any other conditions with respect to, or allocable or
attributable in good faith by Agent, Administrative Agent or the Lender
to, this Agreement, any Note, any of the other Loan Documents or such
share of the Loans or its Commitment hereunder or such interest, fees
or other amounts;
and the result of any of the foregoing, based solely upon the good faith
determination and allocation by Agent, Administrative Agent or any Lender, as
the case may be, of costs, decreased benefits and/or reduced amount of payments,
is to increase the cost or decrease the benefit, in any way, to Agent,
Administrative Agent or such Lender, as the case may be, or any branch or
Affiliate of Agent, Administrative Agent or such Lender, as the case may be, of
funding or maintaining its Commitment or its share of the Loans hereunder, or to
reduce the amount of any payment (whether of principal, interest, or otherwise)
received or receivable by Agent, Administrative Agent or such Lender, as the
case may be, or any branch or Affiliate of Agent, Administrative Agent or such
Lender, as the case may be, or to require Agent, Administrative Agent or such
Lender, as the case may be, or any branch or Affiliate of Agent, Administrative
Agent or such Lender, as the case may be, to make any payment, then and in any
such case:
1. Agent, Administrative Agent or such Lender, as the
case may be, shall promptly notify Borrower and the
other Lenders in writing of the happening of such
event;
2. Agent, Administrative Agent or such Lender, as the
case may be, shall promptly deliver to Borrower and
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the other Lenders a certificate stating the change or
event which has occurred or the reserve or capital
requirements or other conditions which have been
imposed on Agent, Administrative Agent or such
Lender, as the case may be, or branch or Affiliate of
Agent, Administrative Agent or such Lender, as the
case may be, or the request, recommendation,
guideline or policy with which it has complied,
together with the date thereof, the amount of such
increased cost, decreased benefit or reduction
payment; and
3. Borrower shall pay Agent, Administrative Agent or
such Lender, as the case may be, promptly on demand
such an amount or amounts as:
(A) in the case of events referred to in clauses (i),
(ii), (iii) and (v) and, if applicable, clause (iv) above,
shall be sufficient to compensate it or such branch or
Affiliate for all such increased costs and/or payments and/or
decreased benefits, and/or reduced amount of payment; and/or
(B) in the case of events referred to in clause (iv)
above, shall be an amount equal to the reduction, as
reasonably determined by Agent, Administrative Agent or such
Lender, as the case may be, in the after-tax rate of return on
Agent's, Administrative Agent's or such Lender's capital
resulting from any such capital or increased capital or
similar requirement, all as certified by Agent, Administrative
Agent or such Lender or Lenders, as the case may be, in said
written notice to Borrower. Such certification shall be
conclusive and binding on Borrower absent manifest error.
The certificate of Agent, Administrative Agent or such Lender
as to the additional amounts payable pursuant to this Section 2.12 delivered to
Borrower shall constitute prima facie evidence of the amount thereof. Agent,
Administrative Agent and each Lender agree to use reasonable efforts, as
determined by Agent, Administrative Agent or such Lender, as the case may be, to
avoid or minimize the payment by Borrower of any additional amounts under this
Section 2.12. The protection provided by this Section 2.12 shall be available to
Agent, Administrative Agent and each Lender regardless of any possible
contention of invalidity or inapplicability of the Requirement of Law,
interpretation, recommendation, guideline, policy or event or condition which
has been imposed or has occurred. In the event that after Borrower shall have
paid any additional amount under this Section 2.12 with respect to the Loans
Agent, Administrative Agent or such Lender shall have successfully contested
such Requirement of Law,
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interpretation, recommendation, guideline, policy or event or condition then, to
the extent that Agent, Administrative Agent or such Lender will be placed in the
same position it was in prior to the incurrence of the increased cost or
reduction in amount received or receivable (on an after-tax basis), but without
giving effect to interest which may have been earned on the additional amount
paid by Borrower (but with interest to the extent actually earned by Agent,
Administrative Agent or such Lender, as the case may be, on such amount as
determined by Agent, Administrative Agent or such Lender, as the case may be),
Agent, Administrative Agent or such Lender, as the case may be, shall refund to
Borrower such additional amount (with such interest, if any).
2.13. Change in Law Rendering Eurocurrency Loans or Alternate
Rate Loans Unlawful; Failure to Give Notice of Continuation.
(a) Notwithstanding anything to the contrary herein contained,
in the event that any Requirement of Law or any change in any existing
Requirement of Law or in the interpretation thereof by any Governmental
Authority charged with the administration thereof, in any case adopted, issued
or effective after the date hereof, (i) shall make it unlawful for any Lender to
fund any portion of the Eurocurrency Loans or to give effect to its obligations
as contemplated hereby with respect to its making or maintaining its pro rata
share of the Eurocurrency Loans, or (ii) shall make it unlawful for any Lender
to fund any portion of the Alternate Rate Loans or to give effect to its
obligations as contemplated hereby with respect to its Commitment or making or
maintaining its pro rata share of the Alternate Rate Loans, such Lender shall,
upon the happening of such event, notify Agent, Administrative Agent, the other
Lenders and Borrower thereof in writing stating the reason therefor and the
effective date of such event, and (x) upon the effectiveness of any such event
referred to in clause (i) above, the obligation of such Lender to make or
maintain its pro rata share of the Eurocurrency Loans to Borrower shall
forthwith be suspended for the duration of such illegality and during such
illegality such Lender shall, upon payment of any amounts owing under Section
2.15 with respect to such conversion, convert its share of the Eurocurrency
Loans to Alternate Rate Loans or (upon effectiveness of any such event referred
to in clause (ii) and during the continuance of such event) Base Rate Loans in
the case of Loans denominated in U.S. Dollars or Alternate GBP Rate Loans in the
case of Loans denominated in GBP, and (y) upon the effectiveness of any such
event referred to in clause (ii), the obligation of such Lender to make or
maintain its pro rata share of the Alternate Rate Loans to Borrower shall
forthwith be suspended for the duration of such illegality and during such
illegality such Lender shall, upon payment of any amounts owing under Section
2.15 with respect to such conversion, convert its share of the Alternate
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Rate Loans to Base Rate Loans in the case of Loans denominated in U.S. Dollars
or Alternate GBP Rate Loans in the case of Loans denominated in GBP. If and when
such illegality with respect thereto ceases to exist, such suspension shall
cease and such affected Lender shall similarly notify Agent, Administrative
Agent, the other Lenders and Borrower and the Alternate Rate Loan or Base Rate
Loan or Alternate GBP Rate Loan into which such share of the Eurocurrency Loans
or Alternate Rate Loans (as applicable) was converted pursuant to this Section
2.13 shall be reconverted to a Eurocurrency Loan or Alternate Rate Loan,
respectively, on the first day of the next succeeding Interest Period.
(b) If Borrower fails to give a valid Notice of
Continuation/Conversion in respect of any portion of a Eurocurrency Loan which
is not repaid in accordance with the terms hereof at the end of the relevant
Interest Period in respect thereto, such portion shall be converted
automatically into Base Rate Loans in the case of Loans denominated in U.S.
Dollars or Alternate GBP Rate Loans in the case of Loans denominated in GBP;
provided that if Borrower subsequently gives a valid Notice of
Continuation/Conversion in respect of such Base Rate Loans or Alternate GBP Rate
Loans, such Loans shall be converted into Eurocurrency Loans in accordance with
the requirements for a continuation/conversion under Section 2.5.
(c) If any Loan is converted to an Alternate Rate Loan
pursuant to this Section 2.13, Borrower and Lenders, acting through
Administrative Agent, shall enter into negotiations in good faith with a view to
agreeing upon a substitute basis for determining the rate or rates of interest
from time to time applicable to such Loan, which shall be acceptable to each
Lender, and the rate or rates so determined shall constitute the Alternate Rate
for that Loan from the date of such conversion. If, however, Borrower and
Majority Lenders fail to agree to such substitute basis within thirty (30) days
after such conversion, such Loan shall be deemed to have been converted to (i)
in the case of Loans denominated in U.S. Dollars, a Base Rate Loan, and (ii) in
the case of Loans denominated in GBP, an Alternate GBP Rate Loan effective (in
the case of clauses (i) and (ii)) from the date of such conversion.
2.14. Eurocurrency Availability. (a) In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for any Eurocurrency Loans, Administrative Agent shall have
determined (which determination shall, in the absence of manifest error, be
conclusive and binding upon Borrower) that U.S. Dollar or GBP (as the case may
be) deposits in the amount of the principal amount of the Eurocurrency Loans
which is to have such Interest Period are not generally available in the London
interbank market, or that the rate at which such U.S. Dollar or GBP (as the case
may be) deposits are being offered will not accurately reflect the cost to any
of the Lenders
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of making or funding such principal amount of such Eurocurrency Loans during
such Interest Period, or that reasonable means do not exist for ascertaining the
LIBO Rate, Administrative Agent shall, as soon as practicable thereafter, give
written or telephonic notice (which telephonic notice shall be followed
immediately with a notice by facsimile telecopy) of such determination to Agent,
the Lenders and Borrower and (i) such principal amount of such Eurocurrency
Loans shall automatically be converted, as of the last day of the Interest
Period during which such determination is made, to Alternate Rate Loans subject
to the last sentence of this paragraph and (ii) any request by Borrower for such
Eurocurrency Loans pursuant to Section 2.3 hereof shall thereupon, and until the
circumstances giving rise to such notice no longer exist (as notified by
Administrative Agent to Borrower and the Lenders), be deemed a request for the
making of Alternate Rate Loans. If at any time Administrative Agent shall have
determined (which determination shall, in the absence of manifest error, be
conclusive and binding upon Borrower) that any contingency has occurred which
adversely affects the London interbank market or that any Requirement of Law or
any change in any existing Requirement of Law or in the interpretation thereof
or other circumstance affecting the Lenders or the London interbank market makes
the funding of the Eurocurrency Loans impracticable, Administrative Agent shall,
as soon as practicable thereafter, give written or telephonic notice (which
telephonic notice shall be followed immediately with a notice by facsimile
telecopy) of such determination to Agent, the Lenders and Borrower and (i) the
Eurocurrency Loans shall automatically be converted, as of the last day of each
Interest Period during which such determination is made and in each case in
respect of the principal amount of the Eurocurrency Loans having an Interest
Period ending on such date, to Alternate Rate Loans, subject to the last
sentence of this paragraph, and (ii) any request by Borrower for the
Eurocurrency Loans pursuant to Section 2.3 hereof shall thereupon, and until the
circumstances giving rise to such notice no longer exist (as notified by
Administrative Agent to Borrower, Agent and the Lenders), be deemed a request
for the making of Alternate Rate Loans. If, in the circumstances specified in
this paragraph or in Section 2.13, Administrative Agent determines that no
reasonable alternate source of funding for the Eurocurrency Loans, or no
reasonable basis for determining the Alternate Rate, is available or
practicable, Administrative Agent shall promptly so notify the other Lenders,
Agent and Borrower thereof and any notice of borrowing under Section 2.3 shall
be deemed rescinded and each principal amount of the Eurocurrency Loans, if
outstanding, having an Interest Period then current, together with all interest
thereon, shall be due and payable by Borrower on the last day of the Interest
Period then applicable to it.
(c) If any Loan is converted to an Alternate Rate Loan
pursuant to this Section 2.14, Borrower and Lenders, acting through
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Administrative Agent, shall enter into negotiations in good faith with a view to
agreeing upon a substitute basis for determining the rate or rates of interest
from time to time applicable to such Loan, which shall be acceptable to each
Lender, and the rate or rates so determined shall constitute the Alternate Rate
for that Loan from the date of such conversion. If, however, Borrower and
Majority Lenders fail to agree to such substitute basis within thirty (30) days
after such conversion, such Loan shall be deemed to have been converted to (i)
in the case of Loans denominated in U.S. Dollars, a Base Rate Loan, and (ii) in
the case of Loans denominated in GBP, an Alternate GBP Rate Loan, effective (in
the case of clauses (i) and (ii)) from the date of such conversion.
2.15. Indemnities. Borrower shall indemnify each Lender on
demand for, from and against any actual loss (including, without limitation, any
loss of anticipated profits) or expense (including but not limited to any loss
or expense sustained or incurred in liquidating or employing or redeploying
deposits from third parties acquired to effect or maintain any Loan or any
portion thereof) which such Lender or its branch or Affiliate may sustain or
incur as a consequence of (i) any default in payment or prepayment of the
principal amount of any Loan or any portion thereof or interest accrued thereon,
as and when due and payable (at the due date thereof, by irrevocable notice of
payment or prepayment, or otherwise), (ii) the effect of the occurrence of any
Event of Default upon any Loan, (iii) the payment or prepayment of any principal
amount of any Loan or the conversion of any portion of any Eurocurrency Loan to
Alternate Rate Loans or Base Rate Loans on any day other than the last day of an
Interest Period or the payment of any interest on such Loan, or portion thereof,
on a day other than an Interest Payment Date for the Loan or (iv) any failure of
Borrower to accept or make a borrowing of the Loans or continue or convert a
Loan after delivery of a notice requesting a Loan under Section 2.3 or, as the
case may be, a notice requesting a continuation or conversion under Section 2.5
or any failure by Borrower to satisfy any of the conditions precedent to the
making of Loans hereunder after it has requested the borrowing thereof (other
than any such conditions that are waived in accordance with the provisions
hereof). The determination of each Lender of any amount payable under this
Section 2.15 shall, in the absence of manifest error, be conclusive and binding
upon Borrower.
SECTION 3.REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this Agreement
and to make the Loans herein provided for, Borrower hereby covenants, represents
and warrants to Agent, Administrative Agent and each Lender that:
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3.1. Financial Condition. The consolidated balance sheet of
Borrower and its Subsidiaries (if any) as at December 31, 1996 and December 31,
1997 and the related consolidated statements of income, stockholders' equity and
cash flows for the fiscal years ended on such dates, certified by Ernst & Young
LLP, copies of which have heretofore been furnished to Agent, are complete and
correct and present fairly the financial condition of Borrower and its
Subsidiaries (if any) on a consolidated basis as at such dates, and
stockholders' equity and cash flows for the fiscal years then ended. All such
financial statements, including the related schedules and notes thereto, have
been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by such accountants or Responsible Officer,
as the case may be, and as disclosed therein). Borrower and its Subsidiaries
have no material Contingent Obligation, contingent liabilities or liability for
taxes, long-term lease or unusual forward or long-term commitment, which is not
reflected in the foregoing statements or in the notes thereto.
3.2. No Material Adverse Effect. Since December 31, 1997 (a)
there has been no Material Adverse Effect, and no event has occurred and no
condition exists which could reasonably be expected to have a Material Adverse
Effect and (b) no dividends or other distributions have been declared the
payment of which could result in a Default or Event of Default nor have any
Common Shares, Preferred Shares or other equity securities of Borrower been
redeemed, retired, purchased or otherwise acquired for value by Borrower or any
of its Subsidiaries.
3.3. Existence; Compliance with Law. Borrower and each of its
Subsidiaries (a) is, in the case of Borrower, a real estate investment trust
duly organized, validly existing and in good standing under the laws of the
State of Maryland and, in the case of each such Subsidiary, a corporation, real
estate investment trust or limited liability company, as the case may be, duly
organized, validly and existing and in good standing under the laws of its
respective jurisdiction of incorporation, (b) has full power and authority and
the legal right to own its property, to lease (as lessee) the property that it
leases as lessee, to lease (as lessor) or sublease the property it owns and/or
leases (as lessee) and to conduct the business in which it is currently engaged,
(c) is duly qualified and is in good standing under the laws of each
jurisdiction where its ownership or lease of property or the conduct of its
business require such qualification, except to the extent that the failure to be
so qualified or in good standing is not reasonably likely to have, in the
aggregate, a Material Adverse Effect, and has all material licenses required by
each such jurisdiction, and (d) is in compliance with all Requirements of Law
except to the extent that the failure to comply therewith is not reasonably
likely to have, in the aggregate, a Material Adverse Effect.
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3.4. Tenant, Advisor, Credit Support Obligors; Compliance with
Law.
a. To the best knowledge of Borrower, each Tenant and
Mortgagor (i) has full power and authority and the legal right to own, lease (or
sublease) and operate (as applicable) the Properties it operates and to conduct
the business in which it is currently engaged with respect to any Property, (ii)
is duly qualified or licensed and is in good standing under the laws of each
jurisdiction where its ownership, lease (or sublease) or operation of any
Property requires such qualification, and (iii) is in compliance with all
Requirements of Law applicable to the Properties operated by it, or applicable
to the operation thereof except to the extent that the failure to comply
therewith is not reasonably likely to have, in the aggregate, a Material Adverse
Effect.
b. To the best knowledge of Borrower, the Advisor (i) has full
power and authority and legal right to conduct the business in which it is
presently engaged and to perform its obligations under the Advisory Agreement,
(ii) is duly qualified or licensed and is in good standing under the laws of
each jurisdiction where the conduct of its business requires such qualification,
and (iii) is in compliance with all Requirements of Law except to the extent
that the failure to comply therewith is not reasonably likely to have, in the
aggregate, a Material Adverse Effect.
c. To the best knowledge of Borrower, the Credit Support
Obligors (i) have full power and authority and legal right to conduct the
business in which they are presently engaged and to perform their obligations
under the Credit Support Agreements to which they are parties, and (ii) are in
compliance with all Requirements of Law, except, in the case of clauses (i) and
(ii), to the extent that the failure to comply therewith is not reasonably
likely to have, in the aggregate, a Material Adverse Effect.
3.5. Power; Authorization; Enforceable Obligations. Borrower
and each of its Subsidiaries has the power and authority and the legal right to
make, deliver and perform each of the Loan Documents to which it is a party and,
in the case of Borrower, to borrow hereunder; and Borrower has taken all
necessary action to authorize the borrowings hereunder, on the terms and
conditions of the Loan Documents, and Borrower and each of its Subsidiaries has
taken all necessary action to authorize the execution, delivery and performance
of each of the Loan Documents to which it is a party. No consent or
authorization of, filing with, or other act by or in respect of any Governmental
Authority is required in connection with the borrowings hereunder or with the
execution, delivery,
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performance, validity or enforceability of the Loan Documents. This Agreement
has been, and each other Loan Document will be, duly executed and delivered on
behalf of Borrower and each of its Subsidiaries which is a party thereto and
this Agreement constitutes, and each other Loan Document when executed and
delivered will constitute, a legal, valid and binding obligation of Borrower and
each of its Subsidiaries which is a party thereto enforceable against Borrower
and each of its Subsidiaries which is a party thereto in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally.
3.6. No Legal Bar. The execution, delivery and performance of
this Agreement and the other Loan Documents, the borrowings hereunder and the
use of the proceeds thereof, will not violate any Requirement of Law or any
Contractual Obligation of Borrower or any of its Subsidiaries, and will not
result in, or require, the creation or imposition of any Lien on any of their
respective properties or revenues pursuant to any Requirement of Law or
Contractual Obligation.
3.7. No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the best knowledge and belief of Borrower, threatened by or against Borrower
or any of its Subsidiaries or against any of their respective properties or
revenues or, to the best knowledge and belief of Borrower, by or against any of
the Tenants and Mortgagors or against any of their respective properties (a)
with respect to this Agreement or the other Loan Documents, the Leases, the
Mortgage Interest Agreements, or any of the transactions contemplated hereby or
thereby, or (b) relating to the Properties, the Mortgaged Properties or the
ownership or the operation thereof or the conduct of business thereon as
presently conducted, which, in the case of (a) or (b), is reasonably likely to
have, in the aggregate, a Material Adverse Effect.
3.8. No Default. Neither Borrower nor any of its Subsidiaries
is in default under or with respect to any Contractual Obligation in any respect
which could have a Material Adverse Effect. No Default or Event of Default has
occurred and is continuing.
3.9. Ownership of Mortgage Interests and Property; Liens.
a. In the case of a Mortgage Interest, Borrower or one of its
Subsidiaries has good record, marketable and indefeasible title to such Mortgage
Interest. In the case of a Property which is a Fee Interest, Borrower or one of
its Subsidiaries has good record, marketable and indefeasible fee simple
absolute title
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to such Fee Interest. In the case of a Property which is a Leasehold Interest,
Borrower or one of its Subsidiaries has good record and marketable title to such
Leasehold Interest. In the case of a Mortgage Interest in respect of which all
or any part of the Mortgaged Property is a fee interest in land and/or
buildings, structures, improvements and fixtures, the Mortgagor with respect to
such Mortgaged Property has good record, marketable and indefeasible fee simple
absolute title to such Mortgaged Property. In the case of a Mortgage Interest in
respect of which all or any part of the Mortgaged Property is a leasehold
estate, the Mortgagor with respect to such Mortgaged Property has good record
and marketable title to such leasehold estate. In each of the cases described in
this Section 3.9, such title shall be free and clear of all Liens and other
matters affecting title except for such other matters not reasonably likely to
have, in the aggregate, a Material Adverse Effect.
b. The buildings, structures, and other improvements located
on each Property are in good operating condition and repair (ordinary wear and
tear which are not such as to materially and adversely affect the operations of
the business conducted thereon, excepted), free of any material structural or
engineering defects known to Borrower or any of its Subsidiaries on the date
hereof and are suitable for their present uses, subject to such exceptions which
are not reasonably likely to have, in the aggregate, a Material Adverse Effect.
c. All water, sewer, gas, electricity, telephone and other
utilities serving each Property are supplied directly to such Property by public
utilities and enter such Property through adjoining public streets or, if they
pass through adjoining private land, do so in accordance with valid public
easements which inure to the benefit of Borrower or one of its Subsidiaries (in
the case of a Property in which Borrower or such Subsidiary has a Fee Interest)
or a mortgagor's or beneficiary's benefit (in the case of a Property in which
Borrower or such Subsidiary is a mortgagor or beneficiary, as applicable, of a
loan secured in whole or in part by a Lien on a Property), subject to such
exceptions which are not reasonably likely to have, in the aggregate, a Material
Adverse Effect. All of such utilities are presently installed and operating and
are in good and safe condition, subject to such exceptions which are not
reasonably likely to have, in the aggregate, a Material Adverse Effect. All
material assessments for public improvements that have been made against the
Properties have been paid or provided for, except that in the case of any
assessments that are payable in installments, all installments due as of the
date hereof have been paid or provided for, subject to such exceptions which are
not reasonably likely to have, in the aggregate, a Material Adverse Effect.
d. None of Borrower or any of its Subsidiaries or to the best
knowledge and belief of Borrower, the Tenants and Mortgagors, has received
notice of any pending, threatened or contemplated condemnation proceeding or
similar taking affecting
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the Properties, or any portion thereof, or any sale or other disposition of the
Properties or any portion thereof in lieu of condemnation or similar taking, in
each case, subject to such exceptions which are not reasonably likely to have,
in the aggregate, a Material Adverse Effect.
e. All Real Property Permits from all Governmental Authorities
having jurisdiction over the Properties or any portion thereof, the absence of
which could materially impair the use of any Property for the purposes for which
it is currently used, and from all insurance companies and fire rating and
similar boards and organizations required to have been issued to Borrower or any
of its Subsidiaries or any Tenants and Mortgagors of such Property, as the case
may be, to enable such Property or any portion thereof to be lawfully occupied
and used as currently so occupied or used have been issued and are in full force
and effect, subject to such exceptions which are not reasonably likely to have,
in the aggregate, a Material Adverse Effect. Neither Borrower nor any of its
Subsidiaries has received or been informed by a third party, including the
Tenants and Mortgagors of the Properties, of the receipt by it of any notice
from any Governmental Authority having jurisdiction over the Properties or any
portion thereof or from any insurance company or fire rating or similar board or
organization threatening a suspension, revocation, modification or cancellation
of any Real Property Permit, subject to such exceptions which are not reasonably
likely to have, in the aggregate, a Material Adverse Effect. Each of the Leases,
Mortgage Interest Agreements and Credit Support Agreements relating to
Properties and Mortgage Interests (including Properties which are not Eligible
Properties and Mortgage Interests which are not Eligible Mortgages) is in full
force and effect and is a legally valid and binding obligation of Borrower or
its Subsidiaries and the other parties thereto, subject to such exceptions which
are not reasonably likely to have, in the aggregate, a Material Adverse Effect.
Neither Borrower nor any of its Subsidiaries has mortgaged, pledged or otherwise
encumbered any of the Leases or Mortgage Interest Agreements or its right to
obtain rental, interest or other payments thereunder except for the Liens
permitted by Section 6.9. Neither Borrower nor any of its Subsidiaries has
collected any rents becoming due under any Lease more than 30 days in advance
(except (i) an amount equal to one month's instalment of rent under a Lease or
(ii) in the case of a lease acquired from Host Marriott Corporation and its
Affiliates pursuant to the transaction (or one on substantially similar terms)
described in the Form S-3 Registration Statement of Borrower filed with the
Commission on April 29, 1994, an amount equal to no more than three months'
instalment of rent under such lease). All rent and other sums and charges
payable by any Tenant under each Lease to which it is a party are current, no
notice of default or termination under any such Lease is outstanding, no
termination event or condition or uncured default on the part of a Tenant exists
under any Lease, and no event of default has occurred which, with the giving of
notice
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or the lapse of time or both, would constitute such a default or termination
event or condition or uncured default on the part of Borrower or its
Subsidiaries or the Tenants (as the case may be), subject to such exceptions
which are not reasonably likely to have, in the aggregate, a Material Adverse
Effect. Except as set forth on Schedule 6, all payments required from any
Mortgagor under any Mortgage Interest Agreement to which it is a party are
current, no notice of default or acceleration under any such Mortgage Interest
Agreement is outstanding, no default or condition or uncured default on the part
of the Mortgagor exists under any Mortgage Interest Agreement, and no event of
default has occurred which, with the giving of notice or the lapse of time or
both, would constitute such a default or termination event or condition or
uncured default on the part of the Mortgagor, subject to such exceptions which
are not reasonably likely to have, in the aggregate, a Material Adverse Effect.
All payments required from any Credit Support Obligor in respect of any Credit
Support Agreement for the Lease of a Property or for a Mortgage Interest are
current, no notice of default or acceleration under any such Credit Support
Agreement is outstanding, and no default or condition or uncured default on the
part of such Credit Support Obligor exists under any such Credit Support
Agreement, subject to such exceptions which are not reasonably likely to have,
in the aggregate, a Material Adverse Effect. As to all of the Leases, Borrower
and each of its Subsidiaries has performed all of its repair and maintenance
obligations (if any) and, to the best knowledge and belief of Borrower, each
Tenant and Mortgagor under each Lease and Mortgage to which it is a party has
performed all of its repair and maintenance obligations, subject to such
exceptions which are not reasonably likely to have, in the aggregate, a Material
Adverse Effect.
f. Borrower and each of its Subsidiaries has good record and
marketable title in fee simple to or valid mortgage interests in all its real
property, other than the Properties and Mortgaged Properties, as to which
Borrower has made the representation set forth in subsection (a) of this Section
3.9, and good title to all its other property other than the Properties, and
none of such property is subject to any Lien for borrowed money as of the date
hereof, except for Liens permitted by Section 6.9.
3.10. No Burdensome Restrictions. No Contractual Obligation of
Borrower or any of its Subsidiaries or, to Borrower's best knowledge and belief,
of any of the Tenants and Mortgagors and no Requirement of Law currently has a
Material Adverse Effect, or insofar as Borrower may reasonably foresee may have
a Material Adverse Effect.
3.11. Taxes. Borrower and each of its Subsidiaries has filed
or caused to be filed all tax returns which to the best knowledge and belief of
Borrower are required to be filed, and has paid or caused to be paid all taxes
shown to be due and payable on
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said returns or on any assessments made against it or any of its property and
all other taxes, fees or other charges imposed on it or any of its property by
any Governmental Authority (other than those the amount or validity of which is
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of Borrower or such Subsidiary); and no tax Liens have been filed and, to
the knowledge of Borrower, no claims are being asserted with respect to any such
taxes, fees or other charges and there are no matters under discussion with any
Governmental Authority that, in any such case, could result in a material
additional liability for taxes and which would reasonably be expected to have a
Material Adverse Effect.
3.12. Federal Regulations. Neither Borrower nor any of its
Subsidiaries is engaged, nor will it engage, principally or as one of its
important activities, in the business of extending credit for the purpose of
"purchasing" or "carrying" any "margin stock" within the respective meanings of
each of the quoted terms under Regulation U of the Board of Governors of the
Federal Reserve System as now and from time to time hereafter in effect. No part
of the proceeds of the Loans hereunder will be used for "purchasing" or
"carrying" "margin stock" as so defined or for any purpose which violates, or
which would be inconsistent with, the provisions of the Regulations of such
Board of Governors. If requested by Agent, Borrower will furnish to Agent and
each Lender a statement in conformity with the requirements of Federal Reserve
Form U-1 referred to in said Regulation U to the foregoing effect.
3.13. Employees. Neither Borrower nor any of its Subsidiaries
has any employees and none of them has ever engaged any employees.
3.14. ERISA. No ERISA Affiliate has been, since July 1, 1974,
an "employer", as defined in Section 3(5) of ERISA, in respect of any Plan or
making contributions to any Multiemployer Plan.
3.15. Status as REIT. Borrower is organized in conformity with
the requirements for qualification as a real estate investment trust under the
Code. Borrower's failure to elect to be treated as a real estate investment
trust under the Code for its fiscal year ended December 31, 1986 has not had and
will not have any Material Adverse Effect. Borrower has met all of the
requirements for qualification as a real estate investment trust under the Code
for its fiscal years ended December 31, 1993, 1994, 1995, 1996 and 1997.
Borrower is in a position to qualify for its current fiscal year as a real
estate investment trust under the Code and its proposed methods of operation
will enable it to so qualify.
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3.16. Restrictions on Incurring Indebtedness. Neither Borrower
nor any of its Subsidiaries is (a) an "investment company" or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended, or (b) a "holding company" as defined in, or
otherwise subject to, regulation under the Public Utility Holding Company Act of
1935. Neither Borrower nor any of its Subsidiaries is subject to regulation
under any federal or state statute or regulation which limits its ability to
incur the indebtedness or give the guaranties described in this Agreement.
3.17. Subsidiaries. Set forth on Schedule 4 annexed hereto is
a complete and accurate list of all of Borrower's Subsidiaries showing as of the
date hereof (as to each Subsidiary) the jurisdiction of its incorporation, the
number of shares of each class of capital stock authorized, and the number
outstanding, and the percentage of each class of capital stock owned by
Borrower, all of which capital stock is owned free and clear of all Liens; all
of the issued and outstanding shares of capital stock of such Subsidiaries have
been duly authorized and validly issued and are fully paid and non-assessable.
3.18. Compliance with Environmental Laws. Borrower and each of
its Subsidiaries and, to the best knowledge of Borrower, each Tenant and each
Mortgagor of the Properties is in compliance with all applicable statutes, laws,
rules, regulations and orders of all Governmental Authorities relating to
environmental protection, pollution control and Hazardous Materials and with
respect to the conduct of its business and the ownership of its properties,
except for such noncompliance which would not result in imposition of Liens,
fines, penalties, injunctive relief or other civil or criminal liabilities and
which, in the aggregate, could not have a Material Adverse Effect.
3.19. Pollution; Hazardous Materials. In connection with the
acquisition and ownership of its interests in the Properties and Mortgage
Interests, Borrower and each of its Subsidiaries has made and will continue to
make such inquiries, and has and will continue to cause such testing, surveying,
inspection or other action, with respect to each Property as is necessary or
desirable in connection with Hazardous Materials which might be present in the
air, soil, surface water or groundwater at such Property. Except for such
exceptions which are not reasonably likely to have, in the aggregate, a Material
Adverse Effect, there are not, and, to the knowledge of Borrower after diligent
inquiry, were not previously, any Hazardous Materials present in the air, soil,
surface water or groundwater at any Property and no Hazardous Materials (except
Hazardous Materials maintained in accordance with all Requirements of Law and
necessary for the business operations of any such Property as a health care
facility, including, without
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limitation, petroleum used for heating oil and certain medications) are used in
the operation of any Property. Borrower is not aware of any claim or notice of
violation, alleged violation, noncompliance, liability or potential liability
relating to any Property nor any judicial proceedings or governmental or
administrative actions pending or, to the knowledge of Borrower, threatened, to
which Borrower or any of its Subsidiaries would be named a party in connection
with any Property which, if adversely determined, would be reasonably likely to
result in a Material Adverse Effect.
3.20. Securities Laws. None of the Common Shares, Preferred
Shares or other equity securities of Borrower has been issued in violation of
the Securities Act of 1933, as amended, or the securities or "blue sky" or other
applicable laws or regulations of any applicable jurisdiction.
3.21. Declaration of Trust, By-Laws, Advisory Agreement, etc.
The copies of the Declaration of Trust and by-laws of Borrower and the Advisory
Agreement which have been furnished to Agent are true, correct and complete
copies thereof as in effect on the date of this Agreement.
3.22. Disclosures. The financial statements referred to in
Section 3.1 do not, nor does this Agreement, the other Loan Documents, or any
other written statement furnished by or on behalf of Borrower to any Lender in
connection with the transactions contemplated hereby or thereby, contain any
untrue statement of a material fact or omit a material fact necessary to make
the statement contained therein or herein not misleading.
3.23. Certification. Subject to such exceptions which, in the
aggregate, are not reasonably likely to have a Material Adverse Effect, to the
best knowledge of Borrower after reasonable investigation, each Tenant with
respect to each of the Properties that it operates, and each Mortgagor with
respect to each of the Mortgaged Properties that it owns, (a) is validly
licensed under applicable law (to the extent required thereby) to operate such
Property or Mortgaged Property and to conduct the business in which it is
currently engaged, (b) has received any applicable certificate of need,
determination of need or similar approval, and any amendments or supplements,
and such approvals are in full force and effect, (c) (except in the case of
non-healthcare Properties and Mortgaged Properties, United Kingdom located
Properties or Mortgaged Properties or otherwise where participation in Medicare
or Medicaid or any similar program is deemed undesirable in the reasonable
business judgment of the Tenant or Mortgagor) is validly certified or approved
for participation in Medicare and Medicaid, or such other program, by the
applicable federal and state authorities and is a party to provider agreements
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with respect to its participation in Medicare and Medicaid, or such other
program, which provider agreements are in full force and effect, in each case
only to the extent that such Property or Mortgaged Property is of a character
eligible for participation in Medicare or Medicaid or such other program, and
(d) no proceedings have been initiated or notices issued to suspend or revoke
any such license, approval, certification or provider agreement, except for
notices of deficiency which are issued and corrected in the ordinary course of
business.
3.24. Offering, Etc., of Securities. Neither Borrower nor any
agent with the authority of Borrower has offered any securities similar to the
Notes, nor solicited any offer to buy any such securities, in a manner which
would render the offering, sale or issuance of the Notes subject to the
registration requirements of the Securities Act of 1933, as amended.
3.25. Addressing the Year 2000 Issue. Borrower has reviewed
its operations and those of its Subsidiaries and major commercial counterparties
with a view to assessing whether it or its Subsidiaries' respective businesses
will, in the receipt, transmission, processing, manipulation, storage,
retrieval, retransmission or other utilization of data, be vulnerable to a Year
2000 Issue. Based on such review, Borrower has no reason to believe that a
Material Adverse Effect will occur with respect to its or its Subsidiaries'
businesses or operations resulting from a Year 2000 Issue.
SECTION 4.CONDITIONS PRECEDENT
4.1. Conditions to Effectiveness. This Agreement shall become
effective only upon satisfaction of all of the following conditions precedent:
a. Note. Agent shall have received for the account of each
Lender a Note conforming to the requirements hereof and executed by a duly
authorized officer of Borrower.
b. Legal Opinion. Agent shall have received, with a
counterpart for each Lender, a favorable opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, as
counsel to Borrower and its Subsidiaries and the Advisor, addressed to Agent and
the Lenders and dated the Effective Date, and in form and substance satisfactory
to Agent.
c. Organizational Documents. Agent shall have received
certified copies of the Declaration of Trust for Borrower and Articles of
Organization, Certificate of Incorporation or Declaration of Trust, as the case
may be, for each Subsidiary of Borrower, by-laws of Borrower and each of its
Subsidiaries and all resolutions of the Board of Trustees of Borrower and the
board of
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directors or board of trustees, as the case may be, of each of its Subsidiaries
approving this Agreement and the other Loan Documents to which each is a party
and the transactions contemplated hereby and thereby, and of all documents
evidencing other necessary corporate action and approvals, if any, of
Governmental Authorities with respect to this Agreement and the other Loan
Documents and the transactions contemplated hereby and thereby.
d. Good Standing and Existence. Agent shall have received
certificates of the appropriate governmental officials of the State of Maryland
and the State of incorporation or formation of each of Borrower's Subsidiaries,
each dated a recent date prior to the Effective Date, to the effect that
Borrower or such Subsidiary (as the case may be) is validly existing and is in
good standing with respect to payment of franchise and similar taxes and is duly
qualified to transact business therein.
e. Advisory Agreement and Subordination Agreement. Agent shall
have received copies of the Advisory Agreement and the Subordination Agreement
each certified by a Responsible Officer.
f. Debt Rating. Agent shall have received evidence that
Borrower is an Investment Grade Person.
g. Existing Loan Agreement
(i) Borrower shall have paid all accrued interest,
fees, commissions and other amounts (other than principal)
accrued or owed under the Existing Loan Agreement, whether or
not presently due and payable.
(ii) No Default or Event of Default (both such terms
being used as defined in the Existing Loan Agreement) shall
have occurred and be continuing under the Existing Loan
Agreement.
h. No Material Adverse Effect. No Material Adverse Effect
specified in clause (a)(i), (b), (c)(i) or (d) of the definition thereof shall
have occurred since December 31, 1997.
i. Compensation. The Administrative Agent shall have
received, for distribution (as appropriate) to the Lenders, the
following fees:
(i) an extension fee to each of the Lenders that were
party to the Existing Loan Agreement of 0.1% of their
respective Pro Rata Shares (as defined in the Existing Loan
Agreement and calculated immediately before the effectiveness
hereof);
(ii) an upfront fee to each of the Lenders that were
party to the Existing Loan Agreement that is increasing its
Commitment equal to a percentage of the amount by which its
Commitment hereunder exceeds its Commitment (as defined in the
Existing Loan Agreement) under the Existing Loan Agreement
immediately before the effectiveness hereof; which percentage
shall equal 0.20% unless its Commitment hereunder is
$30,000,000 or greater, in which case such percentage shall be
0.25%; and
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(iii) an upfront fee to each of the Lenders that were
not party to the Existing Loan Agreement in an amount equal to
0.20% of its Commitment (if its Commitment is less than
$30,000,000) and 0.25% thereof (if its Commitment is
$30,000,000 or greater)
and all other obligations of Borrower to pay fees and provide compensation and
reimbursement of costs and expenses to Agent, Administrative Agent and the
Lenders or their designees as of the Effective Date hereunder or otherwise in
connection with the financing contemplated hereby shall have been satisfied.
j. Real Property Statement. Agent shall have received a Real
Property Statement dated the Effective Date.
k. Additional Matters. Agent shall have received such other
approvals, opinions or documents as it may reasonably request and all documents
and legal matters in connection with the transactions contemplated by this
Agreement and the other Loan Documents shall be satisfactory in form and
substance to Agent and its counsel.
4.2. Conditions Precedent to Loans. The obligations of Lenders
to make Loans on each Borrowing Date and to continue any Existing Loans on the
Effective Date (which, for purposes of this Section 4.2 shall be deemed to be a
Borrowing Date) are subject to the following further conditions precedent:
a. Representations and Warranties. The representations and
warranties made by Borrower herein or made by any Person in the other Loan
Documents or which are contained in any certificate, document or financial or
other statement furnished at any time under or in connection with any of the
Loan Documents, shall be true, correct and accurate in all material respects on
and as of the Borrowing Date for the Loan as if made on and as of such date
unless stated to relate to a specific earlier date, in which case such
representations and warranties shall be true, correct and complete in all
material respects as of such earlier dates.
b. No Default or Event of Default. No Default or Event of
Default shall have occurred and be continuing on such date either before or
after giving effect to the Loan to be made on the Borrowing Date.
c. Legality of Loans. The making of the Loans hereunder by the
Lenders and the acquisition of the Notes shall be permitted as of the Borrowing
Date by all applicable Requirements of Law and shall not subject any Lender to
any penalty or other onerous condition in or pursuant to any such Requirement of
Law or result in a Material Adverse Effect.
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d. No Material Adverse Effect. No Material Adverse Effect
specified in clause (a)(i), (b), (c)(i) or (d) of the definition thereof shall
have occurred since December 31, 1997.
e. Solvency. Both after and immediately before the making of
any Loans on the Borrowing Date, Borrower and each of its Subsidiaries shall be
Solvent.
f. Borrowing Certificate. Administrative Agent shall have
received, with a counterpart for each Lender, a Notice of Borrowing, dated the
Borrowing Date, substantially in the form of Exhibit B, with appropriate
insertions and attachments satisfactory in form and substance to Agent and its
counsel, executed by a Responsible Officer; provided that while no Notice of
Borrowing shall be required with respect to any Existing Loans continued on the
Effective Date, on the Effective Date Agent shall have received a certificate of
a Responsible Officer certifying as to the matters set forth in clauses
(vi)-(viii) of the Notice of Borrowing with respect to such Existing Loans.
g. Borrowing Limits. After the making of the Loans on any
Borrowing Date, the aggregate principal amount of all Loans outstanding shall
not exceed the Commitments and the aggregate principal amount of all Loans
outstanding denominated in GBP shall not exceed the Equivalent Amount of
$100,000,000 (as determined in accordance with Section 1.3(b)) and Agent and
Administrative Agent shall have received a certificate dated as of a date not
more than five (5) Business Days prior to the relevant Borrowing Date to such
effect.
SECTION 5.AFFIRMATIVE COVENANTS.
Borrower hereby agrees that, so long as the Commitments remain
in effect, any Loan remains outstanding and unpaid or any other amount is owing
to any Lender, Agent or Administrative Agent hereunder or under any other Loan
Document, Borrower shall (and shall cause each of its Subsidiaries to):
5.1. Financial Statements. Furnish to Administrative Agent,
with sufficient copies for each Lender:
a. as soon as available, but in any event within ninety days
after the end of each fiscal year of Borrower and within one hundred thirty-five
days after the end of each fiscal year of each Primary Tenant/Mortgagor and
Primary Credit Support Obligor, a copy of each of the following (except for any
thereof to the extent none of the related Leases, Mortgage Interest Agreements
or Credit Support Agreements requires the provision of any of the following to
Borrower or one of its Subsidiaries within such period, in respect of which
Borrower's obligation to furnish copies to each Lender shall be satisfied by
furnishing copies as soon as practicable after Borrower or such Subsidiary
receives one or more
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copies thereof): the audited balance sheet prepared on a consolidated basis
(and, if ever prepared on a consolidating basis, on a consolidating basis) for
Borrower and its Subsidiaries and on a consolidated basis for each Primary
Tenant/Mortgagor and Primary Credit Support Obligor, each as at the end of such
year and the related statements or income, stockholders' equity and cash flows
for such year (on a consolidated basis (and, if ever prepared on a consolidating
basis, on a consolidating basis) for Borrower and its Subsidiaries and on a
consolidated basis for each Primary Tenant/Mortgagor and Primary Credit Support
Obligor), setting forth in each case in comparative form the figures for the
previous year, certified without a "going concern" or like qualification or
exception, or qualification arising out of the scope of the audit, by
independent certified public accountants of nationally recognized standing; and
as soon as available, but in any event not later than forty-five days after the
end of each of the first three quarterly periods of each fiscal year of Borrower
and not later than seventy-five days after the end of each of the first three
quarterly periods of each fiscal year of each Primary Tenant/Mortgagor and
Primary Credit Support Obligor, copies of each of the following (except for any
thereof to the extent none of the related Leases, Mortgage Interest Agreements
or Credit Support Agreements requires the provision of any of the following to
Borrower or one of its Subsidiaries within such period, in respect of which
Borrower's obligation to furnish copies to each Lender shall be satisfied by
furnishing copies as soon as practicable after Borrower or such Subsidiary
receives one or more copies thereof): the unaudited balance sheet prepared on a
consolidated basis (and, if ever prepared on a consolidating basis, on a
consolidating basis) for Borrower and its Subsidiaries and on a consolidated
basis for each Primary Tenant/Mortgagor and Primary Credit Support Obligor, each
as at the end of each such quarter and the related unaudited statements of
income, stockholders' equity and cash flows for such quarterly period and the
portion of the fiscal year through such date (on a consolidated basis (and, if
ever prepared on a consolidating basis, on a consolidating basis) for Borrower
and its Subsidiaries and on a consolidated basis for each Primary
Tenant/Mortgagor and Primary Credit Support Obligor), setting forth in each case
in comparative form the figures for the previous year, certified by a
responsible officer of such entity as being fairly stated and complete and
correct in all material respects (subject to normal year-end audit adjustments);
all such financial statements referred to in clauses (a) and (b) above to be
complete and correct in all material respects and be prepared in reasonable
detail and in accordance with GAAP applied consistently throughout the periods
reflected therein (except as approved by such accountants or officer, as the
case may be, and disclosed therein).
5.2. Certificates; Other Information. Furnish to
Administrative Agent, with sufficient copies for each Lender:
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a. concurrently with the delivery of the financial statements
of Borrower and its Subsidiaries referred to in Section 5.1(a) above, a
certificate of Borrower's independent certified public accountants certifying
such financial statements of Borrower and its Subsidiaries stating that in
making the examination necessary therefor, no knowledge was obtained of any
Default or Event of Default, except as specified in such certificate;
b. concurrently with the delivery of the financial statements
of Borrower and its Subsidiaries referred to in Sections 5.1(a) and (b) above,
(i) a certificate of a Responsible Officer (A) stating that, to the best of such
officer's knowledge, Borrower and each of its Subsidiaries during such period
has observed or performed all of its covenants and other agreements, and
satisfied every condition, contained in the Loan Documents to be observed,
performed or satisfied by it, and that such officer has obtained no knowledge of
any Default or Event of Default except as specified in such certificate, and (B)
showing in detail the calculations supporting such statement in respect of
Sections 6.1(a), 6.1(b) and 6.1(c) and 6.8 (including, without limitation,
certification and details as to all Indebtedness of Borrower and its
Subsidiaries, if any), and (ii) a Real Property Statement;
c. within forty-five days after the end of each calendar
quarter following the Effective Date, a written report signed by a Responsible
Officer describing in reasonable detail any acquisitions or dispositions of any
Fee Interests or Mortgage Interests by Borrower and its Subsidiaries or any
other material property of Borrower and its Subsidiaries which shall include,
without limitation (i) in the case of acquisitions of property, a description of
(A) the geographic area and type of property, (B) the current and anticipated
cash flow from the property, (C) the Tenants of such property and (D) financing
of the acquisition, (ii) with respect to dispositions of property, a description
of (A) the amount and use of proceeds from such disposition and (B) the reasons
for the disposition, and (iii) a copy of any appraisals of the property acquired
or disposed of;
d. within 30 days prior to the first day of each fiscal year
of Borrower, a copy of the projections by Borrower of the operating budget and
cash flow of Borrower and its Subsidiaries for such fiscal year, such
projections to be accompanied by a certificate of a Responsible Officer to the
effect that such projections have been prepared on the same basis as the
financial statements of Borrower and its Subsidiaries then current and that such
officer has no reason to believe they are incorrect or misleading in any
material respect;
e. promptly after the same are sent, copies of all financial
statements and reports which Borrower sends to its holders of Common Shares,
Preferred Shares or other equity securities, and promptly after the same are
filed by Borrower copies of all financial statements and reports which Borrower
or any of its Subsidiaries may make to, or file with, the Commission or any
successor or analogous Governmental Authority; and
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f. promptly, such additional financial and other information
respecting the financial or other condition of the Primary Tenants/Mortgagors,
the Primary Credit Support Obligors, the Advisor or Borrower or any of its
Subsidiaries or the status or condition of the Properties or the operation
thereof which Borrower is entitled to or can otherwise reasonably obtain as
Agent may from time to time reasonably request.
5.3. Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its Indebtedness and other obligations of whatever nature, except, in
the case of Indebtedness other than that described in Section 7.1(e), when the
amount or validity thereof is currently being contested in good faith by
appropriate proceedings, and reserves in conformity with GAAP with respect
thereto have been provided on the books of Borrower and its Subsidiaries.
5.4. Conduct of Business and Maintenance of Existence. (a)
Continue to engage in its Business; provided that its Business shall not consist
of the acquisition, operation or funding of hotels or other lodging facilities
except for the indirect ownership by the Borrower of interests in hotels or
other lodging facilities through Borrower's ownership of shares in Hospitality
Properties Trust; provided, further, that (i) Borrower shall not increase its
equity investment in or make any other investment in or make any loans to,
guaranties for the benefit of or other support whatsoever to or for the benefit
of Hospitality Properties Trust except for the aggregate of 4,000,000 shares
(which shall be construed to include any substitute or replacement shares) of
stock of Hospitality Properties Trust acquired by Borrower prior to or in
connection with the initial public offering of shares in Hospitality Properties
Trust, and (ii) Hospitality Properties Trust shall not be or become a Subsidiary
of Borrower; (b) preserve, renew and keep in full force and effect its existence
and take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business; and (c) comply
with all Contractual Obligations and Requirements of Law except to the extent
that the failure to comply therewith could not, in the aggregate, have a
Material Adverse Effect.
5.5. Leases and Mortgage Interests; Credit Support Agreements.
(a) (i) Maintain the Leases, Mortgage Interests and Credit Support Agreements in
full force and effect and enforce the obligations of the Tenants under the
Leases, the Mortgagors under the Mortgage Interests and the Credit Support
Obligors under the Credit Support Agreements in a timely manner and (ii) obtain
the consent of Agent in connection with any materially adverse change in or
waiver of any obligation of any Tenant, Mortgagor or Credit Support Obligor
contained in, or any right or remedy of Borrower or any of its Subsidiaries
under, any Lease, Mortgage Interest
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Agreement or Credit Support Agreement, including, without limitation, any
renewal, amendment, modification or termination thereof, except to the extent
that the failure to comply with this Section 5.5(a) could not, in the aggregate,
have a Material Adverse Effect; and (b) give notice to Agent of each material
waiver, amendment or modification of the Leases, Mortgage Interests and Credit
Support Agreements in respect of any Eligible Property or Eligible Mortgage and
any renewal or termination thereof, together with a copy of such waiver,
renewal, amendment, modification or termination.
5.6. Maintenance of Property, Insurance. Keep all property
useful and necessary to its business in good working order and condition;
maintain or cause the Tenants of its Properties to maintain with financially
sound and reputable insurance companies insurance with respect to its property
and business of such a nature, with such terms and in such amounts, as is
customary in the case of business entities of established reputation engaged in
the same or similar business similarly situated against loss or damage of the
kinds and in the amounts customarily insured against and for by such business
entities, and to cause the Mortgagors of each of its Mortgaged Properties to
maintain comparable insurance. Borrower shall furnish to each Lender, upon
written request, full information as to the insurance carried.
5.7. Inspection of Property; Books and Records; Discussions.
Keep proper books of record and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and permit
representatives of Agent and/or Administrative Agent and, after the occurrence
of a Default, any Lender, to visit and inspect any of its properties and examine
and make abstracts from any of its books and records at any reasonable time and
as often as may reasonably be desired, and to discuss the business, operations,
properties, prospects and financial and other condition of Borrower and its
Subsidiaries with officers and employees of Borrower or such Subsidiaries and
the Advisor and with its independent certified public accountants.
5.8. Notices. Promptly, and in any event within ten Business
Days after an officer of Borrower obtains knowledge thereof, give notice to
Agent, Administrative Agent and each Lender:
a. of the occurrence of any Default or Event of Default;
b. of (i) any default or event of default or termination under
any Lease, Credit Support Agreement, Mortgage Interest Agreement or any other
Contractual Obligation of or in
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favor of Borrower or any of its Subsidiaries which could have a Material Adverse
Effect and (ii) any litigation, investigation or proceeding which may exist at
any time between Borrower or any of its Subsidiaries or any Tenant, Mortgagor or
Credit Support Obligor and any Governmental Authority or other Person, which if
adversely determined could have a Material Adverse Effect;
c. of any litigation or proceeding affecting Borrower in which
the amount involved is $ 10,000,000 or more and is not fully covered by
insurance or in which injunctive or similar relief is sought;
d. of the following events, as soon as possible and in any
event within 30 days after Borrower knows or has reason to know thereof
(provided that with respect to any Multiemployer Plan in which neither Borrower
nor any ERISA Affiliate is a substantial employer Borrower shall only be deemed
to have knowledge of facts concerning which it has actual knowledge): (i) the
occurrence or expected occurrence of any Reportable Event with respect to any
Plan, or (ii) the institution of proceedings or the taking or expected taking of
any other action by PBGC or Borrower or any ERISA Affiliate to terminate or
withdraw from any Plan, and in addition to such notice, deliver to each Lender
whichever of the following may be applicable: (A) a certificate of the chief
financial officer or treasurer of Borrower setting forth details as to such
Reportable Event and the action that Borrower or ERISA Affiliate proposes to
take with respect thereto, together with a copy of any notice of such Reportable
Event that may be required to be filed with PBGC, or (B) any notice delivered by
PBGC evidencing its intent to institute such proceedings or any notice to PBGC
that such Plan is to be terminated, as the case may be;
e. of the adoption by Borrower or any ERISA Affiliate of any
Plan or of any Plans maintained by any Person that becomes an ERISA Affiliate
after the date hereof;
f. of the occurrence or existence of any event or condition
which could reasonably be expected to have, or which has had, a Material Adverse
Effect; and
g. of the occurrence or existence of any event or condition
which would cause any of the representations and warranties set forth in Section
3.9 to be untrue if repeated after the occurrence, or during the existence, of
such event or condition.Each notice pursuant to this Section shall be
accompanied by a statement of a Responsible Officer setting forth details of the
occurrence referred to therein and stating what action Borrower proposes to take
with respect thereto. For all purposes of clause (d) of this Section, Borrower
shall be deemed to have all knowledge or knowledge of all facts attributable to
the administrator of such Plan.
5.9. Appraisals and Other Valuations. a. From time to time
during the term of this Agreement, Agent may, in its sole discretion, order an
Appraisal of one or more of the Eligible
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Properties and/or Mortgaged Properties covered by Eligible Mortgages. Any such
Appraisal shall be at Borrower's cost if (i) Agent shall have obtained a letter
from an expert appraiser or evaluator of real property to the effect that, or
Agent shall otherwise in good faith have determined that, facts or circumstances
exist, or changes in market conditions have occurred, as a result of which there
exists a reasonable possibility that Appraisals of the Eligible Properties and
Mortgaged Properties covered by Eligible Mortgages, might result in an aggregate
valuation thereof reflecting a material loss of value as compared to the value
thereof indicated in the certificate of a Responsible Officer delivered to Agent
pursuant to Section 4.1(j) or 5.2(b) or (ii) an Event of Default has occurred.
b. In addition to the Appraisals referred to in Section
5.9(a), from time to time during the term of this Agreement, if so requested by
Agent, in its sole discretion, Borrower shall furnish to Administrative Agent,
with sufficient copies for each Lender, a certificate of a Responsible Officer
certifying as to the value of one or more of the Eligible Properties and/or
Mortgaged Properties covered by Eligible Mortgages.
5.10. Meetings. Within one hundred days after the end of each
fiscal year of Borrower, one or more Responsible Officers of Borrower shall
attend an annual informational meeting with the Lenders, for the purpose of
answering reasonable questions of any Lender, Agent and/or Administrative Agent
relating to the Properties and/or the Loan Documents, to be held at Borrower's
cost and at such time and place to be determined by Agent as is reasonably
requested by Agent; provided that each Lender shall bear the costs of
transportation and accommodation for any of its representatives attending such
meeting.
5.11. REIT Requirements. Operate its business at all times so
as to satisfy or be deemed to have satisfied all requirements necessary to
qualify as a real estate investment trust under Section 856 through 860 of the
Code. Borrower will maintain adequate records so as to comply with all
record-keeping requirements relating to the qualification of Borrower as a real
estate investment trust as required by the Code and applicable regulations of
the Department of the Treasury promulgated thereunder and will properly prepare
and timely file with the Internal Revenue Service all returns and reports
required thereby. Borrower will request from its shareholders all shareholder
information required by the Code and applicable regulations of the Department of
Treasury promulgated thereunder.
5.12. Indemnification. Borrower agrees to indemnify, defend
(with counsel selected by Agent) and hold Agent, Administrative Agent, each
Co-Agent, Lenders and the directors, officers, shareholders, employees and
agents of each of them
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harmless for, from and against any claims (including without limitation third
party claims for personal injury or real or personal property damage), actions,
administrative proceedings, judgments, damages, punitive damages, penalties,
fines, costs, expenses disbursements, liabilities (including sums paid in
settlements of claims), obligations, interest or losses, including attorneys'
fees, consultant fees and expert fees, that arise at any time (including,
without limitation, at any time after the payment of the Notes) directly or
indirectly from or in connection with the presence, suspected presence, release
or suspected release of any Hazardous Material in the air, soil, surface water
or groundwater at or from the real property or any portion thereof with respect
to a Property, or any other real property in which Borrower or any of its
Subsidiaries has any interest (all of the foregoing real property shall be
referred to collectively as the "Real Property"). Without limiting the
generality of the foregoing, the indemnification provided by this Section shall
specifically cover (i) costs, including capital, operating and maintenance
costs, incurred in connection with any investigation or monitoring of site
conditions or any clean-up, remedial, removal or restoration work required or
performed by any federal, state or local governmental agency or political
subdivision or performed by any non-governmental Person, including any Tenant or
Mortgagor of a Property, because of the presence, suspected presence, release or
suspected release of Hazardous Material in the air, soil, surface water or
groundwater at or from the Real Property; and (ii) costs incurred in connection
with (A) Hazardous Material present or suspected to be present in the air, soil,
surface water or groundwater at the Real Property before the date of this
Agreement, or (B) Hazardous Material that migrates, flows, percolates, diffuses
or in any way moves onto or under or from the Real Property after the date of
this Agreement, or (C) Hazardous Material present at the Real Property as a
result of any release, discharge, disposal, dumping, spilling or leaking
(accidental or otherwise) onto or from the Property before or after the date of
this Agreement by any Person.
5.13. Changes in GAAP. Borrower and the Lenders hereby agree
that in the event of a change in GAAP which would cause the financial covenants
set forth herein to provide less protection to the Lenders than presently
provided for hereunder, such financial covenants shall be reset, in good faith,
by the Majority Lenders to maintain the protection to the Lenders equivalent to
that in place prior to such change and Borrower agrees to execute one or more
amendments to this Agreement to effect such reset.
5.14. Restrictions on Negative Pledges. If Borrower or any of
its Subsidiaries shall agree to any "negative pledge" or like agreement more
restrictive (or otherwise more generous to its
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beneficiaries) in its scope than Section 6.9, then, without any further action
being required, the provisions of such agreement relating to the prohibition on
Liens shall be deemed incorporated by reference (with appropriate modifications
as may be necessary) into this Agreement for the benefit of Lenders; provided
that the foregoing covenant shall not apply to the prohibitions on Liens
contained in the loan documents relating to the Government Properties Assumed
Indebtedness as of the date of the merger of Government Properties with and into
Hub and not created in contemplation of such merger.
5.15. Currency Arrangements.
(a) Borrower shall at all times maintain Currency Agreements
in form and substance satisfactory to Agent which will protect Borrower and its
Subsidiaries against fluctuations in foreign currency values against the U.S.
Dollar.
(b) Borrower shall only enter into Hedging Agreements or
Currency Agreements as are (in Borrower's reasonable judgment) necessary for the
hedging or other protection to exposure of Borrower and its Subsidiaries, and
not those which are of a purely speculative nature.
5.16. Year 2000. Borrower has taken and shall take all action
necessary to assure that its data processing and information technology systems
are capable of effectively processing data and information, including dates, on
and after January 1, 2000, and shall not cease to perform, or provide or cause
any software and/or system which is material to the operations of Borrower or
any interface therewith to provide invalid or incorrect results as a result of
date functionality and/or data, or otherwise experience any degradation of
performance or functionality and/or data, or otherwise experience any
degradation of performance or functionality arising from, relating to or
including date functionality and/or data which represents or references
different centuries or more than one century or leap years and that all such
systems shall effectively and accurately manage and manipulate data derived
from, involving or relating in any way to dates including single century
formulas and multi-century or leap year formulas, and will not cause an
abnormally ending scenario within such systems or in any software and/or system
with which such systems interface, or generate incorrect values or invalid
results involving such dates.
SECTION 6.NEGATIVE COVENANTS.
Borrower hereby agrees that, so long as the Commitments remain
in effect or any Loan remains outstanding and unpaid or any
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other amount is owing to any Lender, Agent or Administrative Agent hereunder or
under any other Loan Document, Borrower shall not (and shall not permit any of
its Subsidiaries to) directly or indirectly:
6.1. Financial Covenants.
a. Tangible Net Worth. Suffer or permit Tangible Net Worth at
any time to be less than the aggregate of (i) $972,000,000, plus (ii) 75% of the
Net Securities/Debt Proceeds of all offering and issuances of equity securities
(including without limitation of Common Shares and Preferred Shares) by Borrower
in one or more transactions received after the date hereof.
b. Interest Coverage. Suffer or permit the ratio of (i)
Consolidated EBITDA to (ii) Consolidated Interest Charges for any fiscal quarter
of the Borrower to be less than 2 to 1.
c. Debt to Net Worth. Suffer or permit the ratio of the Total
Liabilities of Borrower and its Subsidiaries to Tangible Net Worth to be greater
than 1 to 1 at any time.
6.2. Restricted Payments.
(a) Declare, make or pay any Restricted Payment except where
(i) no Default or Event of Default is continuing either before or after giving
effect to such Restricted Payment, (ii) Borrower has sufficient funds or
availability under its credit facilities (including this Agreement) to pay the
next installment of interest payable in respect of the Loans and (iii)
immediately upon declaring, making or paying any such Restricted Payment a
Responsible Officer shall certify to Administrative Agent in writing that
Borrower is in compliance with each condition hereof with respect to the
declaration, making or payment, as the case may be, of such Restricted Payment;
or
(b) directly or indirectly make any payment of Indebtedness of
Borrower or any of its Subsidiaries in contravention of the terms of any
agreement or instrument subordinating or purporting to subordinate any rights to
receive payments in respect of any Indebtedness of Borrower or such Subsidiary
to any rights to receive payments under this Agreement.
6.3. Merger; Sale of Assets; Termination and Other Actions.
(a) Cause to be organized or assist in organizing any Person
under the laws of any jurisdiction to acquire all or substantially all of its
assets, terminate, wind up, liquidate or dissolve its affairs or enter into any
reorganization, merger or consolidation or, in the case of Borrower, take any
other action whatsoever under or pursuant to Articles 6.15, 8.1, 8.2 and 8.5 of
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the Declaration of Trust or agree to do any of the foregoing at any future time,
except that (i) Borrower may acquire all or substantially all of the assets of
such Person, (ii) any Subsidiary Guarantor may acquire all or substantially all
of the assets of a Subsidiary of Borrower, and (iii) any Subsidiary of Borrower
or any other Person may reorganize, merge or consolidate with (x) Borrower (so
long as Borrower is the surviving entity) or (y) any Subsidiary Guarantor (so
long as a Subsidiary Guarantor is the surviving entity) and (iv) any Subsidiary
of Borrower may be dissolved (so long as Borrower or any Subsidiary Guarantor
receives the assets, if any, thereof); or
(b) convey, sell, lease or otherwise dispose of (i) any of the
Properties, the Mortgage Interests or its other interests in Properties or (ii)
any substantial part of its property or assets (other than the Properties) or
(iii) any shares of stock in any of its Subsidiaries; except if (A) the
consideration therefor shall be equal to the fair market value thereof (or, in
the case of a Mortgage Interest where the consideration is less than fair market
value, the Board of Trustees of Borrower or the board of directors of the
relevant Subsidiary of Borrower shall have determined that the consideration
received or to be received is in an amount consistent with the best financial
interests of Borrower or such Subsidiary, as the case may be) and no default
under any other provision hereof results therefrom or (B) such conveyance, sale,
lease or other disposition is pursuant to the exercise of an option contained in
a Lease.
6.4. Transactions with Affiliates. Enter into or be a party to
any transaction directly or indirectly with or for the benefit of any Affiliate
of Borrower, other than (i) in the ordinary course of business and (ii) for fair
consideration and on terms no less favorable to Borrower or any of its
Subsidiaries than are available in an arm's-length transaction from unaffiliated
third parties and (iii) if the Independent Trustees determine in their
reasonable good faith judgment that such transaction is in the best interests of
Borrower or such Subsidiary based on full disclosure of all relevant facts and
circumstances.
6.5. Subsidiaries. Without the prior written consent of Agent,
create, or permit to exist, any Subsidiary other than (i) those named on
Schedule 4 and (ii) any Subsidiary (A) the majority of the equity interests
(except directors' qualifying shares) and voting interests of which are owned
directly or indirectly by Borrower, (B) which has provided the guarantee set
forth in Section 9 and (C) which is engaged in the Business.
6.6. Accounting Changes. Make any significant change in
accounting treatment and reporting practices, except as required by GAAP or with
which Borrower's independent certified public
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accountants have agreed. Borrower will advise Agent sufficiently in advance of
any proposed change to permit representatives of Agent to discuss the proposed
change with the officers of Borrower.
6.7. Change in Nature of Business; Location of Property
Interests.
(a) Make any material change in the nature of its Business as
presently conducted (where a "material change" shall mean the conduct of any
business which is outside the definition of "Business" in this Agreement,
regardless of the amount or size of such new business).
(b) Permit the location of Eligible Properties to be other
than in the United States of America or, up to an amount not to exceed 10% of
the aggregate Allowed Value of all Properties and Mortgage Interests, in the
United Kingdom.
6.8. Indebtedness.
(a) Suffer or permit the total Indebtedness (determined
without duplication) of Borrower and its Subsidiaries (other than (i) Bridge
Financings in an aggregate amount not to exceed $100,000,000 at any one time
outstanding, (ii) Assumed Indebtedness in an aggregate amount not to exceed
$100,000,000 at any one time outstanding , (iii) Government Properties Assumed
Indebtedness in an aggregate amount not to exceed $27,000,000 at any one time
outstanding and (iv) Convertible Subordinated Debt) at any time to exceed the
lesser of (x) 50% of the aggregate Allowed Value of all Eligible Properties and
all Eligible Mortgages or (y) 100% of the aggregate Allowed Value of Eligible
Properties and Eligible Mortgages that consist of interests in facilities that
are used for healthcare or related services.
(b) Suffer or permit any Indebtedness to exist or remain
outstanding, unless, in the case of Borrower, the earliest date for any payment
of principal or other settlement thereof is at least three months after the
Termination Date (other than Bridge Financings and Assumed Indebtedness, in each
case subject to the limitations set forth in Section 6.8(a)).
6.9. No Liens. Suffer or permit after the date hereof any Lien
on any Property, Lease, Mortgage Interest, or Credit Support Agreement, except
(i) in the case of Borrower, Liens granted to secure Indebtedness in the nature
of Bridge Financings (but not any subsequent refinancing or any other
restructuring of such bridge financing) permitted under Section 6.8, so long as
such Liens are granted only on the properties or interests acquired with such
Indebtedness; provided that any such property or interest which is the subject
of such a Lien shall not be an Eligible
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Property or an Eligible Mortgage, (ii) Permitted Exceptions, (iii) with respect
to either (A) Properties that are not Eligible Properties or (B) Mortgaged
Properties that are subject to Mortgage Interest Agreements which are not
Eligible Mortgages only, Liens that are not created or granted by Borrower or
any of its Subsidiaries, which Liens, in the aggregate, would not be reasonably
likely to cause or create a Material Adverse Effect and (iv) Liens securing
Assumed Indebtedness permitted by Section 6.8 so long as neither such
Indebtedness nor such Liens were incurred or granted in contemplation of such
acquisition and such Liens are granted only on the related properties or
interests acquired by Borrower or its Subsidiaries; provided that any property
or interest which is the subject of a Lien permitted under this clause (iv)
shall not be an Eligible Property or an Eligible Mortgage.
6.10. Fiscal Year. Change the fiscal year end of Borrower or
any of its Subsidiaries from December 31 to any other date without the prior
written consent of Agent.
6.11. Chief Executive Office. Change the name of Borrower or
the chief executive office of Borrower unless Borrower has given Administrative
Agent at least 15 Business Days' prior written notice of any such change.
6.12. Amendment of Certain Agreements. Amend, supplement or
otherwise modify (a) the Advisory Agreement, or (b) the Declaration of Trust in
a manner which would be reasonably likely to cause a Material Adverse Effect, in
either case without the prior written consent of Agent.
6.13. Payments Not to Exceed Appraised Value. Pay
consideration in an amount greater than the Appraised Value for the acquisition
of any Property or, in the case of a group of Properties acquired in a single
transaction, the aggregate Appraised Value of such group of Properties.
SECTION ▇.▇▇▇▇▇▇ OF DEFAULT
7.1. Events of Default. Upon the occurrence of any of the
following events (each an "Event of Default"):
a. Payments. Borrower shall fail to pay any principal of or
interest on any Note, or Borrower or any of its Subsidiaries shall fail to pay
any other amount payable hereunder, when due in accordance with the terms
thereof or hereof; or
b. Representations and Warranties. Any representation or
warranty made or deemed made by Borrower or any of its Subsidiaries herein or by
any Person in any other Loan Document or which is contained in any certificate,
document or financial or
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other statement furnished at any time under or in connection with this Agreement
or any other Loan Document shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or
c. Certain Covenant Defaults. Borrower shall default in the
observance or performance of any agreement contained in Section 6 of this
Agreement, or the Advisor shall default in the observance or performance of any
material provision of the Subordination Agreement; or
d. Certain Other Covenant Defaults. Borrower or any other
party to any of the Loan Documents (other than Agent, Administrative Agent and
the Lenders hereunder) shall default in the observance or performance of any
other provision of this Agreement or any of the other Loan Documents, and such
default shall continue unremedied for a period of 20 days; or
e. Cross-Default. Borrower or any of its Subsidiaries shall
(i) default in any payment of principal of or interest on any Indebtedness
(other than the Notes) in respect of money borrowed or Capitalized Lease
Obligations or incurred for the deferred purchase price of property or services
or evidenced by a note, debenture or other similar written obligation to pay
money, or in the payment of any Contingent Obligation (other than the guarantees
of Subsidiaries of Borrower given in Section 9, which shall be subject to
Section 7.1(d)), beyond the period of grace (not to exceed 30 days), if any,
provided in the instrument or agreement under which such Indebtedness or
Contingent Obligation was created; or (ii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or Contingent Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur, the effect of which default or other event is to cause, or to permit the
holder or holders of such Indebtedness or beneficiary or beneficiaries of such
Contingent Obligation (or a trustee or agent on behalf of such holder or holders
or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity or such
Contingent Obligation to become payable; or
f. Qualification as REIT. Either Agent or the Majority Lenders
shall have determined in good faith, and shall have so given notice to Borrower,
that Borrower has at any time ceased to be in a position to qualify, or has not
qualified, as a real estate investment trust for any of the purposes of the
provisions of the Code applicable to real estate investment trusts; provided
that no Event of Default under this Section 7.1(f) shall be deemed to have
occurred and be continuing if, within 10 days after notice of any such
determination is given to Borrower, Borrower shall have furnished each Lender
with an opinion of Borrower's tax counsel (who shall be satisfactory to the
Majority Lenders provided that the Majority Lenders may not unreasonably
withhold their approval) to the effect that Borrower is then in a position to so
qualify, or has so qualified, as the case may be, which opinion shall not
contain any material qualification unsatisfactory to the Majority Lenders; or
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g. Insolvency, Etc. There shall be an Insolvency Event with
respect to Borrower or any of its Subsidiaries or the Advisor; or
h. ERISA. (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect to any
Plan, (iii) a Termination Event shall occur or (iv) any other event or condition
shall occur or exist with respect to a Plan or a Multiemployer Plan; and in each
case in clauses (i) through (iv) above, such event or condition, together with
all other such events or conditions, if any, could subject Borrower or any of
its Subsidiaries to any tax, penalty or other liabilities in the aggregate
material in relation to the business, operations, property or financial or other
condition of Borrower and its Subsidiaries, taken as a whole; or
i. Certain Judgments. One or more judgments or decrees shall
be entered against Borrower or any of its Subsidiaries involving in the
aggregate a liability (not paid or fully covered by insurance, except for
reasonable and customary deductibles) of $10,000,000 or more, and either (x) all
such judgments or decrees shall not have been vacated, discharged, stayed or
bonded pending appeal or (y) funds in the amount of the liability thereunder
(not paid or fully covered by insurance) shall not have been deposited in escrow
with Agent upon terms and conditions satisfactory to Agent, in each case under
clause (x) or (y), within 60 days from the entry thereof; or
j. Certain Ownership of Borrower. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ (or any Person in respect of which either or both of them own more
than 50% of the securities having ordinary voting power for the election of
directors) shall cease at any time to hold beneficially and of record, in the
aggregate, at least 750,000 shares of the issued and outstanding Common Shares
and each other class of equity securities of Borrower (adjusted for any
division, reclassification or stock dividend in respect of Common Shares) or
such lesser amount as shall be approved by Agent; or
k. Change of Control of Advisor. At any time, neither ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ nor ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ nor both acting together shall have the power to
direct the management and policies of the Advisor; or
l. Investment Grade Tenants and Mortgagors. More than 50% of
the aggregate Allowed Value of the Properties and Mortgage Interests shall be
attributable to Properties and Mortgage Interests having the same Investment
Grade Person (or any of that Person's Affiliates; provided that for the purposes
of this Section 7.1(l), so long as there is no material change in their
practices and procedures in place at the Effective Date to provide for
arm's-length dealings, Marriott International, Inc. and its Affiliates and Host
Marriott Corporation and its Affiliates will not be treated as Affiliates of
each other) as Mortgagor or Tenant thereof; or
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m. Tenants and Mortgagors Generally. Except in the case of
Mortgagors or Tenants which are Investment Grade Persons, more than 40% of the
aggregate Allowed Value of the Properties and Mortgage Interests shall be
attributable to Properties and Mortgage Interests having the same non-Investment
Grade Person (or any of that Person's Affiliates; provided that for the purposes
of this Section 7.1(m) so long as there is no material change in their practices
and procedures in place at the Effective Date to provide for arm's-length
dealings, Marriott International, Inc. and its Affiliates and Host Marriott
Corporation and its Affiliates will not be treated as Affiliates of each other)
as Mortgagor or Tenant thereof; or
n. Advisor. RMR shall cease to be the sole Advisor to Borrower
pursuant to and in accordance with the Advisory Agreement, without Agent's prior
written consent or the Advisory Agreement shall be materially amended,
supplemented or modified without Agent's prior written consent; or
o. Loan Documents. From and after the Effective Date, any
guarantee given by a Subsidiary of Borrower in Section 9 or any Loan Document
shall be terminated or otherwise shall cease to be in full force and effect or
shall cease to give the Lenders the rights, powers and privileges purported to
be created thereby or any party thereto other than Agent and the Lenders shall
cease to be, or shall assert that it is not, bound thereby in accordance with
its terms; then, and in any such event, (a) if such event is an Event of Default
specified in paragraph (g) above, automatically the Commitments shall
immediately terminate and the Loans hereunder (with accrued interest thereon)
and all other amounts owing under this Agreement, the Notes and any other Loan
Document shall immediately become due and payable, and (b) if such event is any
other Event of Default, either or both of the following actions may be taken:
(i) Agent may, or upon the request of the Majority Lenders, Agent shall, by
notice to Borrower, declare the Commitments to be terminated forthwith,
whereupon the Commitments shall immediately terminate; and (ii) Agent may, or
upon the request of the Majority Lenders, Agent shall, by notice of default to
Borrower, declare the Loans hereunder (with accrued interest thereon) and all
other amounts owing under this Agreement, the Notes and any other Loan Document
to be due and payable forthwith, whereupon the same shall immediately become due
and payable. Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
7.2. Annulment of Acceleration. If payment on the Loans and
the Notes is accelerated in accordance with Section 7.1 of this Agreement, then
and in every such case, the Majority Lenders may, by an instrument delivered to
Borrower (and to Agent and/or Administrative Agent, as applicable, to the extent
it is or they
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are not participating in the giving of notice) annul such acceleration and the
consequences thereof; provided that at the time such acceleration is annulled:
a. all arrears or interest on the Loans and the Notes and all
other sums payable in respect of the Loans and pursuant to this Agreement, the
Notes and each other Loan Document (except any principal of or interest or
premium on the Loans and the Notes and other sums which have become due and
payable only by reason of such acceleration) shall have been duly paid; and
b. every other Default or Event of Default shall have been
duly waived or otherwise cured; provided, further, that no such annulment shall
extend to or affect any subsequent Default or Event of Default or impair any
right consequent thereon.
7.3. Cooperation by Borrower. To the extent that it lawfully
may, Borrower agrees that it will not (and that it will cause its Subsidiaries
not to) at any time insist upon or plead, or in any manner whatever claim or
take any benefit or advantage of any applicable present or future stay,
extension or moratorium law, which may affect observance or performance of the
provisions of this Agreement or of any Note or any other Loan Document.
SECTION 8.THE AGENTS
8.1. Appointment of Agent and Administrative Agent.
a. Each Lender hereby irrevocably designates and appoints
Dresdner Kleinwort ▇▇▇▇▇▇ North America LLC as Agent of such Lender and each of
Fleet and the GBP Agent (as defined in the definition of "Administrative
Agent"), as Administrative Agent of such Lender (with their respective functions
as set forth in the definition of "Administrative Agent") (the Agent and
Administrative Agent collectively being the "Loan Agents", and, for the purposes
of Sections 8.1(c), 8.1(g), 8.1(h) and 8.1(l), each Co-Agent shall also be
deemed to be a "Loan Agent") under this Agreement and the Loan Documents and the
other documents or instruments delivered pursuant to or in connection herewith
or therewith and each such Lender hereby irrevocably authorizes each Loan Agent,
for such Lender, to take such action on behalf of each Lender under the
provisions of the Loan Documents and to exercise such powers and perform such
duties as are expressly delegated to such Loan Agent by the terms of the Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in the Loan Documents,
no Loan Agent shall have any duties or responsibilities other than those
expressly set forth in the Loan Documents, nor any fiduciary relationship with
any Lender, and no implied covenants, functions,
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responsibilities, duties, obligations or liabilities shall be read into the Loan
Documents or otherwise exist against either Loan Agent. No Co-Agent hereunder
shall have any liability to any Person under this Agreement or the Loan
Documents except in its capacity as a Lender.
b. Each Loan Agent may execute any of its duties under the
Loan Documents by or through agents or attorneys-in-fact and shall be entitled
to advice of counsel concerning all matters pertaining to such duties. No Loan
Agent shall be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
c. None of the Loan Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates shall be
(i) liable for any action lawfully taken or omitted to be taken by it under or
in connection with the Loan Documents (except for its gross negligence or
willful misconduct), or (ii) responsible in any manner to any Lender for any
recitals, statements, representations or warranties made by Borrower or any of
its Subsidiaries or any other Person contained in the Loan Documents or in any
certificate, report, statement or other document referred to or provided for in,
or received by either Loan Agent under or in connection with, the Loan Documents
(including, without limitation, any Appraisal or valuation or any certificate or
other report relating to the value of any Property or any Mortgage Interest), or
for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of the Loan Documents or otherwise or for any failure of Borrower or
any of its Subsidiaries or any other Person to perform its obligations under the
Loan Documents. The Loan Agents shall not be under any obligation to any Lender
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, the Loan Documents, or to inspect the
properties, books or records of Borrower or any of its Subsidiaries or any other
Person or to insure, protect or preserve any of the property of Borrower or any
of its Subsidiaries or any other Person.
d. Each Loan Agent shall be entitled to rely, and shall be
fully protected in relying, upon any Note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document or conversation reasonably believed
by it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to Borrower or its Subsidiaries),
independent accountants and other experts selected by such or the other Loan
Agent. Each Loan Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with such Loan Agent.
e. Each Loan Agent shall be fully justified in failing or
refusing to take any action under the Loan Documents unless it shall first
receive such advice or concurrence of the Majority Lenders as it deems
appropriate or it shall first be indemnified to
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its satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action.
Each Loan Agent shall in all cases be fully protected in acting, or in
refraining from acting, under the Loan Documents in accordance with a request of
the Majority Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of
the Notes.
f. No Loan Agent shall be deemed to have knowledge or notice
of the occurrence of any Event of Default or event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default hereunder
unless such Loan Agent shall have received notice from the other Loan Agent, a
Lender or Borrower referring to this Agreement, describing such event, act or
condition or Event of Default and stating that such notice is a "notice of
default". In the event that a Loan Agent receives such a notice, such Loan Agent
shall give prompt notice thereof to the Lenders and (provided such notice is not
received from the other Loan Agent) to the other Loan Agent. Each Loan Agent
shall take such action with respect to the rights and remedies given to such
Loan Agent pursuant to the terms of the Loan Documents as shall be reasonably
directed by the Majority Lenders; provided that, unless and until such Loan
Agent shall have received such directions, such Loan Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, as it shall
deem advisable in the best interests of the Lenders.
g. Each Lender expressly acknowledges that none of the Loan
Agents nor any of their officers, directors, employees, agents,
attorneys-in-fact or affiliates has made any representations or warranties to it
and that no act by either Loan Agent hereinafter taken or hereinbefore taken in
connection with the Existing Loan Agreement, including any review of the affairs
of Borrower or any of its Subsidiaries, shall be deemed to constitute any
representation or warranty by that Loan Agent to any Lender. Each Lender
represents to the Loan Agents that it has, independently and without reliance
upon either Loan Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of Borrower and its Subsidiaries, each Tenant,
each Mortgagor and each Credit Support Obligor, and made its own decision to
make its loans hereunder and enter into this Agreement, and that it has
satisfied itself independently, without reliance on either of the Loan Agents or
any of their respective officers, directors, employees, agents,
attorneys-in-fact or affiliates, as to the compliance of the transactions
contemplated hereby with all legal and regulatory requirements applicable to
such Lender. Each Lender expressly acknowledges that its representation in the
previous sentence shall not be restricted or construed in any way to import any
reliance on either Loan Agent or any other Lender as a result of any duties or
other actions which may have been undertaken by that Loan Agent or
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other Lender in connection with the Existing Loan Agreement, and, where such
Lender is itself also a party to the Existing Loan Agreement, that such Lender's
decision to make its Loans hereunder and enter into this Agreement is made
independently of its decisions to enter into the Existing Loan Agreement and to
make any loans thereunder. Each Lender also represents that it will,
independently and without reliance upon either Loan Agent or any other Lender,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement, and to make such investigation
as it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of Borrower and its
Subsidiaries, any Tenant, any Mortgagor or any Credit Support Obligor. Except
for notices, reports and other documents expressly required to be furnished to
the Lenders by that Loan Agent hereunder, neither Loan Agent shall have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, financial and other condition or
credit-worthiness of Borrower and its Subsidiaries which may come into its
possession or the possession of any of its officers, directors, employees,
agents, attorneys-in-fact or affiliates.
h. Each Lender agrees to indemnify, defend (with counsel
selected by each Loan Agent) and hold each Loan Agent in its capacity as such
(to the extent not reimbursed by Borrower and without limiting the obligation of
Borrower to do so), and such Loan Agent's respective officers, directors,
shareholders, employees and agents, ratably according to the aggregate loan
percentages set forth opposite its name on Schedule 1 hereto, harmless for, from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including without limitation at any time
following the payment of the Notes) be imposed on, incurred by or asserted
against such Loan Agent in any way relating to or arising out of the Loan
Documents or the transactions contemplated thereby or any action taken or
omitted by such Loan Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgements,
suits, costs, expenses or disbursements resulting primarily from such Loan
Agent's willful misconduct or gross negligence. The agreements in this Section
shall survive the payment of the Notes.
i. Each Loan Agent and its affiliates may make loans to and
generally engage in any kind of business with Borrower or any of its
Subsidiaries as though such Loan Agent were not a Loan Agent hereunder. With
respect to its pro rata share of the Loan made or extended by it and any Note
issued to it, each Loan Agent shall have the same rights and powers under this
Agreement as any Lender and may exercise the same as though it were not a Loan
Agent. The terms "Lender" and "Lenders" shall include each Loan Agent in its
individual capacity.
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j. A Loan Agent may resign as Loan Agent upon 30 days' written
notice to the Lenders. In the event that a Loan Agent shall enter receivership,
then the Lenders (other than the Lender which is acting as such Loan Agent, if
applicable) may, by unanimous consent, remove such Loan Agent as Loan Agent
under this Agreement. If a Loan Agent shall resign as such Loan Agent under this
Agreement or a Loan Agent shall be removed, then the Majority Lenders shall
within 30 days of such resignation or removal or, in the absence of such
appointment, the resigning or removed Loan Agent shall, appoint a successor
agent for the Lenders, whereupon such successor agent shall succeed to the
rights, powers and duties of such Loan Agent, and the term "Agent" or
"Administrative Agent", as applicable, shall mean such successor agent effective
upon its appointment, and the former Loan Agent's rights, powers and duties as
Loan Agent shall be terminated, without any other or further act or deed on the
part of such former Loan Agent or any of the parties to this Agreement or any
holders of the Notes. After any retiring Loan Agent's resignation hereunder as
Loan Agent or any Loan Agent's removal, the provisions of this Section 8.1 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was a Loan Agent under this Agreement.
k. Each Lender agrees to use its best efforts promptly upon an
officer responsible for the administration of this Agreement becoming aware of
any development or other information which may have a Material Adverse Effect or
MAC to notify the other Lenders of the same. Each Loan Agent agrees that it
shall promptly deliver to each Lender copies of all notices, demands, statements
and communications which such Loan Agent gives to Borrower, except for routine
notices of payment due under the Loan Documents and other miscellaneous notices,
demands, statements and communications, the failure of delivery of which to each
Lender shall not have a material adverse effect on any Lender. The foregoing
notwithstanding, no Loan Agent shall have any liability to any Lender, nor shall
a cause of action arise against any Loan Agent, as a result of the failure of
such Loan Agent to deliver to any Lender any notice, demand, statement or
communication required to be delivered by it under this Section 8.1(k), except
to the extent such failure is due to the gross negligence or wilful misconduct
of such Loan Agent.
l. Each Loan Agent shall endeavor to exercise the same care in
administering the Loan Documents as it exercises with respect to similar
transactions in which it is involved and where no other co-lenders or
participants are involved; provided that the liability of such Loan Agent for
failing to do so shall be limited as provided in the preceding paragraphs of
this Section 8.1.
(m) Each Lender agrees that, as between it and any Loan Agent,
any Loan Document or Appraisal, or other report or document with respect to
which the approval of such Lender is required hereunder, sent to it for review
shall be deemed consented to by it for purposes of any approval thereof by any
Loan Agent if such
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Lender does not give to such Loan Agent written notice of its objection thereto
within five Business Days of its receipt thereof. The foregoing shall be for the
benefit of such Loan Agent only and shall not be deemed a consent under any
other provision of this Agreement or to confer any rights on Borrower or any of
its Subsidiaries under this Agreement in any manner whatsoever.
(n) The Agent may from time to time at its discretion nominate
one or more Lenders as Co-Agent, taking into consideration the magnitude of the
Commitment offered or undertaken by such Lender.
SECTION 9.
SUBSIDIARY GUARANTIES
9.1 Guaranties.
In order to induce the Lenders to enter into this Agreement
and to make the Loans to Borrower hereunder, each Subsidiary of Borrower which
is identified on the signature pages of this Agreement, agrees as follows:
(a) Each such Subsidiary of Borrower hereby unconditionally
(subject to the next paragraph) and irrevocably guarantees, as primary obligor
and not merely as surety, the full and punctual payment (whether at stated
maturity, upon acceleration or otherwise) of the principal and interest
(including, without limitation, interest which, but for the filing of a petition
in bankruptcy with respect to Borrower would accrue hereunder) on all Loans made
to Borrower, and the full and punctual payment of all other amounts payable by
Borrower under this Agreement (including amounts that would become due but for
the operation of the automatic stay under Section 362(a) of the United States
Bankruptcy Code). Upon failure by Borrower to pay punctually any such amount,
each such Subsidiary shall forthwith on demand pay the amount not so paid as if
that Subsidiary instead of Borrower were expressed to be the principal obligor.
The obligations of each Subsidiary of Borrower under this
Section 9 shall be limited to a maximum aggregate amount equal to the largest
amount that would not render its obligations subject to avoidance as a
fraudulent transfer or conveyance under ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Bankruptcy Code or any applicable provisions of comparable state law, in each
case after giving effect to all other liabilities of the relevant Subsidiary
(contingent or otherwise) that are relevant under those laws.
In order to provide for just and equitable contribution among
the Subsidiaries of Borrower, each such Subsidiary agrees that if any other
Subsidiary makes payments under this Section 9 in an aggregate amount in excess
of the net value of
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the benefits received by such other Subsidiary and its own Subsidiaries from
extensions of credit under this Agreement, then the Subsidiary which has made
such excess payments shall have a right of contribution against the other
Subsidiaries of Borrower for such excess. However, this right of contribution
shall be subject to Section 9.1(e) in all respects.
Each Subsidiary of Borrower acknowledges that the giving by it
of this guarantee is a condition precedent to the making or maintenance of the
Loans to Borrower and also acknowledges that a portion of the proceeds of the
Loans may be advanced to it by Borrower, and accordingly the obligations
guaranteed are being incurred for, and will inure to, its benefit.
(b) The obligations of each Subsidiary of Borrower hereunder
shall be unconditional, irrevocable, direct and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by (and, to the fullest extent permitted by law, each such Subsidiary
waives its rights in connection with):
(i) any extension, increase, renewal, settlement, compromise,
waiver or release in respect of any obligation of Borrower hereunder,
by operation of law or otherwise;
(ii) any modification or amendment of or supplement to this
Agreement;
(iii) any release, impairment, non-perfection or invalidity of
any direct or indirect security (if any) for any obligation of Borrower
under this Agreement;
(iv) any change in the trust existence, structure or ownership
of Borrower, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting Borrower or its assets or any resulting
release or discharge of any obligation of Borrower contained in the
Agreement;
(v) the existence of any claim, set-off or other rights which
such Subsidiary may have at any time against Borrower, any Lender or
any other Person, whether in connection herewith or any unrelated
transactions; provided that nothing herein shall prevent the assertion
of any such claim by separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or against
Borrower for any reason of this Agreement, or any provision of
applicable law or regulation purporting to prohibit the payment by
Borrower of the principal or interest on any Loan or any other amount
payable by Borrower under this Agreement; or
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(vii) any other act or omission to act or delay of any kind by
Borrower, any Lender or any other Person or any other circumstance
whatsoever which might, but for the provisions of this Section 9,
constitute a legal or equitable discharge of or defense to such
Subsidiary's obligations hereunder.
(c) Each such Subsidiary's obligations hereunder shall remain
in full force and effect until this Agreement shall have terminated and the
principal and interest on all Loans and all other amounts payable by Borrower
hereunder shall have been paid in full. Each such Subsidiary further agrees that
its guarantee hereunder shall continue to be effective or be reinstated, as the
case may be, if at any time payments, or any part thereof, of principal of or
interest on any obligation of Borrower is rescinded or must otherwise be
restored by Agent or any Lender upon the bankruptcy or reorganization of
Borrower or otherwise.
(d) Each such Subsidiary irrevocably waives acceptance hereof,
presentment, demand, protest and any notice not provided for herein, as well as
any requirement that at any time any action be taken by any Person against
Borrower or any other Person.
(e) Each Subsidiary irrevocably waives any and all rights to
which it may be entitled, by operation of law or otherwise, upon making any
payment hereunder to be subrogated to the rights of the payee against Borrower
with respect to such payment or against any direct or indirect security
therefor, or otherwise to be reimbursed, indemnified or exonerated by or for the
account of Borrower in respect thereof.
(f) Any Subsidiary Guarantor may be released from the
guarantee set forth in this Section 9 by a written release executed by Agent on
behalf of the Lenders upon Agent's satisfaction that such Subsidiary Guarantor
has no remaining assets and is to be dissolved in accordance with clause (iv)(y)
of the proviso to Section 6.3(a).
SECTION 10.
GENERAL
10.1 Choice of Law. THIS AGREEMENT AND THE NOTES SHALL BE
CONTRACTS UNDER AND SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS
PRINCIPLES.
10.2 Submission to Jurisdiction; Waiver of Jury Trial; etc.
NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, THE
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NOTES OR ANY OTHER LOAN DOCUMENT, EACH OF BORROWER AND EACH OF ITS SUBSIDIARIES
HEREBY IRREVOCABLY (a) SUBMITS TO THE NON-EXCLUSIVE PERSONAL JURISDICTION OF ANY
STATE OR FEDERAL COURT IN THE STATE OF NEW YORK IN ANY SUIT, ACTION OR OTHER
LEGAL PROCEEDING RELATING TO THIS AGREEMENT OR THE NOTES OR ANY OF THE OTHER
LOAN DOCUMENTS; (b) AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH SUIT, ACTION
OR OTHER LEGAL PROCEEDING MAY BE HEARD AND DETERMINED IN, AND ENFORCED IN AND
BY, ANY SUCH COURT; (c) WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE
TO VENUE IN ANY SUCH COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM; (d)
AGREES TO SERVICE OF PROCESS IN ANY SUCH PROCEEDING BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, OR IN ANY OTHER MANNER PERMITTED BY LAW, TO ANY THEN
ACTIVE AGENT FOR SERVICE OF PROCESS ("PROCESS AGENT") AT ANY SPECIFIED ADDRESS
OR TO BORROWER AT ITS ADDRESS SET FORTH HEREIN OR TO SUCH OTHER ADDRESS OF WHICH
ADMINISTRATIVE AGENT (WITH A COPY TO AGENT TO FOLLOW) SHALL HAVE BEEN NOTIFIED
IN WRITING (SUCH SERVICE TO BE EFFECTIVE ON THE EARLIER OF RECEIPT THEREOF OR,
IN THE CASE OF SERVICE BY MAIL, THE 5TH DAY AFTER DEPOSIT OF SUCH SERVICE IN THE
MAILS AS AFORESAID), AND HEREBY WAIVES ANY CLAIM OF ERROR ARISING OUT OF SERVICE
OF PROCESS BY ANY METHOD PROVIDED FOR HEREIN OR ANY CLAIM THAT SUCH SERVICE WAS
NOT EFFECTIVELY MADE; (e) AGREES THAT THE FAILURE OF ITS PROCESS AGENT TO GIVE
ANY NOTICE OF ANY SUCH SERVICE OF PROCESS TO IT SHALL NOT IMPAIR OR AFFECT THE
VALIDITY OF SUCH SERVICE OR ANY JUDGMENT BASED THEREON; (f) TO THE EXTENT THAT
BORROWER OR ANY SUCH SUBSIDIARY HAS ACQUIRED, OR HEREAFTER MAY ACQUIRE, ANY
IMMUNITY FROM JURISDICTION OF ANY SUCH COURT OR FROM LEGAL PROCESS THEREIN,
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SUCH IMMUNITY; (g)
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN CONNECTION WITH,
OR WITH RESPECT TO, ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING RELATING TO THIS
AGREEMENT OR THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS, (i) ANY CLAIM THAT IT
IS IMMUNE FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION, EXECUTION OR OTHERWISE) WITH
RESPECT TO IT OR ANY OF ITS PROPERTY, (ii) ANY CLAIM THAT IT IS NOT PERSONALLY
SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, AND (iii) ANY RIGHT TO A JURY
TRIAL; AND (h) AGREES THAT AGENT AND EACH LENDER SHALL HAVE THE RIGHT TO BRING
ANY LEGAL PROCEEDINGS (INCLUDING A PROCEEDING FOR ENFORCEMENT OF A JUDGMENT
ENTERED BY ANY OF THE AFOREMENTIONED COURTS) AGAINST BORROWER OR SUCH SUBSIDIARY
IN ANY OTHER COURT OR JURISDICTION IN ACCORDANCE WITH APPLICABLE LAW.
NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF
AGENT AND EACH LENDER TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS IN THE COURTS OF ANY
OTHER JURISDICTION OR THE RIGHT, IN CONNECTION WITH ANY LEGAL ACTION OR
PROCEEDING WHATSOEVER, TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW. EACH OF BORROWER AND EACH OF ITS SUBSIDIARIES HEREBY IRREVOCABLY DESIGNATES
THE FIRM OF ▇▇▇▇▇▇▇▇ & WORCESTER, WITH OFFICES AT ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
-▇▇-
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ATTENTION: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, AS ITS PROCESS AGENT TO RECEIVE
SERVICE OF ANY AND ALL PROCESS AND DOCUMENTS ON ITS BEHALF IN ANY LEGAL
PROCEEDING IN THE STATE OF NEW YORK AND SUCH PROCESS AGENT, BY ITS
ACKNOWLEDGEMENT BELOW, IRREVOCABLY AGREES TO SO ACT AS PROCESS AGENT FOR SERVICE
OF PROCESS. IF SUCH PROCESS AGENT SHALL FOR ANY REASON FAIL TO ACT, OR BE
PREVENTED FROM ACTING, AS PROCESS AGENT, NOTICE THEREOF SHALL IMMEDIATELY BE
GIVEN TO AGENT BY REGISTERED OR CERTIFIED MAIL AND BORROWER AGREES (FOR ITSELF
AND ITS SUBSIDIARIES) PROMPTLY TO DESIGNATE ANOTHER PROCESS AGENT IN THE CITY OF
NEW YORK, SATISFACTORY TO AGENT UNDER THIS AGREEMENT, TO SERVE IN PLACE OF SUCH
PROCESS AGENT AND DELIVER TO AGENT WRITTEN EVIDENCE OF SUCH SUBSTITUTE PROCESS
AGENT'S ACCEPTANCE OF SUCH DESIGNATION. SUCH ACTING PROCESS AGENT SHALL
NEVERTHELESS CONTINUE TO SERVE AS PROCESS AGENT UNTIL ITS SUCCESSOR IS DULY
APPOINTED.
10.3 Notices; Certain Payments. (a) All notices, consents and
other communications to Borrower or any of its Subsidiaries, Agent,
Administrative Agent or any Lender relating hereto to be effective shall be in
writing and shall be deemed made (i) if by certified mail, return receipt
requested, or facsimile, when received, (ii) if by telex, when sent answerback
received, and (iii) if by courier, when receipted for, in each case addressed to
them as follows or at such other address as either of them may designate by
written notice to the other: (w) Borrower and its Subsidiaries: Health and
Retirement Properties Trust, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Messrs. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇ (facsimile no. (617)
332-2261) with a copy to ▇▇▇▇▇▇▇▇ & Worcester LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq. (facsimile no.
(▇▇▇) ▇▇▇-▇▇▇▇); (x) Agent: Dresdner Kleinwort ▇▇▇▇▇▇ North America LLC, ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇
▇▇▇▇▇▇▇▇ (facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇); (y) Administrative Agent: Fleet
National Bank, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: (in
the case of a Notice of Borrowing) ▇▇▇▇ ▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇ (facsimile no.
(▇▇▇) ▇▇▇-▇▇▇▇) or (in all other cases) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ (facsimile no.
(▇▇▇) ▇▇▇-▇▇▇▇); and (z) the Lenders : to the addresses specified opposite such
Lenders' respective names on Schedule 1 hereto, with a copy (in the case of
notices to the Agent, the Administrative Agent, or the Lenders) to O'Melveny &
▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq. or ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq. (facsimile no. (212)
326-2061).
(b) All payments on account of the Loans and the related Notes
pursuant hereto or pursuant to the other Loan Documents shall be made to the
account of the Administrative Agent at:
Fleet National Bank
Boston, Massachusetts
ABA No. ▇▇▇▇▇▇▇▇▇
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Account Name: Agency Services Wire Clearing
G/L Account No. 150352-03156
Reference: Health and Retirement Properties
Trust
Attention: Martlyn ▇▇▇▇▇▇▇
together with irrevocable instructions to Administrative Agent to apply such
payments under this Agreement. Administrative Agent may by written notice to
Borrower specify or change its account and address for payment instructions
hereunder.
10.4 No Waivers; Cumulative Remedies; Entire Agreement;
Headings; Successors and Assigns; Counterparts; Severability. (a) No action,
failure, delay or omission by Agent, Administrative Agent or any Lender in
exercising any rights, powers, privileges and remedies under this Agreement, the
Notes or any other Loan Document, or otherwise, shall constitute a waiver of, or
impair, any of the rights, powers, privileges or remedies of Agent,
Administrative Agent or any Lender hereunder or thereunder.
(b) No single or partial exercise of any such right, power,
privilege or remedy shall preclude any other or further exercise thereof or the
exercise of any other right, power, privilege or remedy. Such rights, powers,
privileges and remedies are cumulative and not exclusive of any rights, powers,
privileges and remedies provided by law or otherwise available, including, but
not limited to, rights to specific performance (to the extent permitted by law)
or any covenant or agreement contained in this Agreement or any of the Loan
Documents. No waiver of any such right, power, privilege or remedy shall be
effective unless given in writing by the Majority Lenders or as otherwise
provided in Section 10.6. No waiver of any such right, power, privilege or
remedy shall be deemed a waiver of any other right, power, privilege or remedy
hereunder or thereunder. Every right, power, privilege and remedy given by this
Agreement or by applicable law to Agent, Administrative Agent or any Lender may
be exercised from time to time and as often as may be deemed expedient by Agent,
Administrative Agent or any Lender.
(c) This Agreement, the Notes and the other Loan Documents
constitute the entire agreement of the parties relating to the subject matter
hereof and thereof and there are no verbal agreements relating hereto or
thereto. Section headings herein shall have no legal effect.
(d) This Agreement, the Notes and the other Loan Documents
(including all covenants, representations, warranties, rights, powers,
privileges and remedies made or granted herein or therein) shall inure to the
benefit of, and be enforceable by, Agent, Administrative Agent and each Lender
and their respective successors and assigns, except as otherwise expressly
provided in
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this Agreement. Neither Borrower nor any of its Subsidiaries may directly or
indirectly assign or transfer (whether by agreement, by operation of law or
otherwise) any of its rights or obligations and liabilities hereunder without
the prior written consent of each Lender. Each of the Lenders may make, carry or
transfer its pro rata share of the Loans at, to or for the account of, any of
its branch offices or the office of one or more of its Affiliates. Further, each
Lender may sell participations in all or any part of its pro rata share of the
Loans or its Commitments or any other interest herein or in its Notes to another
bank or Person, or with the prior written consent of Agent and Borrower (not to
be unreasonably withheld; provided that Borrower's consent shall not be required
if an Event of Default has occurred and is continuing) each Lender may assign
its rights and delegate its obligations under this Agreement and any of the
other Loan Documents and with the prior written consent of Agent and Borrower
(not to be unreasonably withheld; provided that Borrower's consent shall not be
required if an Event of Default has occurred and is continuing) may assign all
or any part of its pro rata share of the Loans or its Commitment or any other
interest herein or in its Notes to another bank or other Person in amounts not
less than $5,000,000 (or any lesser amount in the case of an assignment by one
Lender to another Lender) to any one assignee, in which event (i) in the case of
an assignment, upon notice thereof by such Lender to Borrower, Agent and
Administrative Agent and upon delivery to the Administrative Agent for its
acceptance of an Assignment Agreement executed by an assigning Lender and an
assignee, together with a processing fee of $3,500 payable by the assignor or
the assignee to the Administrative Agent, the assignee shall have, to the extent
of such assignment (unless otherwise provided in the Assignment Agreement), the
same rights and benefits as it would have if it were such Lender hereunder and
the holder of a Note and to such extent shall be deemed a "Lender" for all
purposes of this Agreement and the other Loan Documents, and (ii) in the case of
a participation, the participant shall not have any rights under this Agreement
or any Note or any other Loan Document (the participant's rights against such
Lender in respect of such participation to be those set forth in the agreement
executed by such Lender in favor of the participant relating thereto). In the
case of such a participation, the terms of the agreement or agreements pursuant
to which any such participation is created shall not confer upon the participant
any right to vote its interest as a participant in respect of any matter
relating to the Loans other than (w) the extension of the maturity of any Note
or the time of payment of interest thereon, (x) the reduction of the rate of
interest payable hereunder, (y) the reduction of any other amount payable
hereunder or (z) the increase of such participant's share of the relevant
Lender's Commitment hereunder. Each Lender may furnish any information
concerning Borrower and its Subsidiaries, the Advisor, any Tenant, any Mortgagor
and any Credit Support Obligor in the possession of such Lender from time to
time to assignees and participants (including prospective assignees and
participants).
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(e) Each Lender agrees that such Lender shall not assign or
offer to assign interests in its Notes in such a manner which would require that
the Notes be registered under applicable securities laws. Each Lender represents
that it is acquiring its respective Note for investment and not with a view to
or for sale in connection with any distribution thereof within the meaning of
the Securities Act of 1933, as amended; provided that the disposition of the
Notes in accordance with the other provisions of this Section 10.4 shall at all
times remain within the Lenders' control.
(f) This Agreement may be executed in any number of separate
counterparts, each of which shall be deemed an original and all of which taken
together shall be deemed to constitute one and the same instrument.
(g) In the event any one or more of the provisions contained
in this Agreement or any Notes or any other Loan Documents should be held
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall not
in any way be affected or impaired thereby. The parties shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal, or unenforceable provisions.
10.5 Survival. The obligations of Borrower under Sections 2.6,
2.10, 2.12, 2.13, 2.14, 2.15, 5.12 and 10.7 (and all other indemnification and
expense reimbursement obligations of Borrower under this Agreement) shall
survive the repayment of the Loans and the cancellation of the Notes and the
termination of the other obligations of Borrower hereunder and under the other
Loan Documents. All representations and warranties made hereunder and in any
document, certificate or statement delivered pursuant hereto or in connection
herewith shall survive the execution and delivery of this Agreement and the
Notes and the funding of the Loans.
10.6 Amendments and Waivers. With the written consent of the
Majority Lenders, Agent and Borrower may, from time to time, enter into written
amendments, supplements or modifications hereto or to any of the other Loan
Documents and with the written consent of the Majority Lenders, Agent on behalf
of the Lenders may execute and deliver to Borrower a written instrument waiving,
on such terms and conditions as Agent may specify in such instrument, any of the
requirements of this Agreement or the Notes or any Default or Event of Default
and its consequences; provided that no such waiver and no such amendment,
supplement or modification shall (a) extend the maturity of any Note, or reduce
the rate or extend the time of payment of interest thereon, or reduce or
postpone the due date for the principal amount thereof or any other amount
payable in connection herewith, or change the amount or terms of any Lender's
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Commitment or amend, modify or waive any provision of this Section or reduce the
percentage specified in the definition of Majority Lenders, or consent to the
assignment or transfer by Borrower or any of its Subsidiaries of any of its
rights and obligations under this Agreement, in each case without the written
consent of all the Lenders, (b) amend, modify or waive any provision of Section
8 or otherwise change any of the rights or obligations of either or both of the
Loan Agents under any of the Loan Documents without the written consent of the
affected Loan Agent or Loan Agents (as applicable) at the time, (c) with respect
to Section 6.7, amend, modify or waive (y) any provision thereof in a manner
which permits Borrower or any of its Subsidiaries to own, operate, acquire or
fund income producing real property interests or facilities which do not offer
health care or related services or rehabilitation or retirement services, or
incidental activities to any of the foregoing, or (z) the proviso to Section
6.7, without, in the case of both clauses (y) and (z) of this clause (c), the
written consent of the Majority Lenders, Agent and Borrower (provided that any
other type of amendment, modification or waiver of Section 6.7 shall only
require the written consent of the Majority Lenders, Agent and Borrower) or (d)
amend, modify or waive any provision of this Section 10.6 without the written
consent of all Lenders. In the case of any waiver, Borrower, Agent,
Administrative Agent and the Lenders shall be restored to their former position
and rights hereunder and under the outstanding Notes, and any Default or Event
of Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
10.7 Payment of Expenses and Taxes. Borrower agrees (a) to pay
or reimburse each of Agent and Administrative Agent on demand for all its
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification to,
this Agreement, the Notes and any other Loan Documents or other documents
prepared in connection herewith, and the consummation of the transactions
contemplated hereby and thereby, including, without limitation, the reasonable
fees and disbursements of counsel to Agent and Administrative Agent, (b) to pay
or reimburse each Lender, Agent and Administrative Agent on demand for all its
costs and expenses incurred in connection with the enforcement or preservation
of any rights under this Agreement, the Notes, the other Loan Documents and any
such other documents, or the satisfaction or review of conditions precedent to
any borrowing other than that occurring on the Effective Date, including,
without limitation, reasonable fees and disbursements of counsel to Agent and
Administrative Agent and, in the case of enforcement or preservation of any
rights under this Agreement, counsel to the several Lenders, and (c) to pay,
indemnify, and to hold each Lender, Agent and Administrative Agent and their
respective officers, directors, employees and agents harmless for, from and
against, any and all recording and filing fees and any and all liabilities with
respect to, or resulting from
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any delay in paying, stamp, excise and other taxes, if any, which may be payable
or determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the Notes, the other Loan Documents and any such
other documents, and (d) to pay, indemnify, and hold each Lender, Agent and
Administrative Agent and their respective officers, directors, employees and
agents harmless for, from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of, or in any
other way arising out of or relating to, this Agreement, the Notes, the other
Loan Documents and any such other documents, including, without limitation, any
claim resulting or arising out of the presence of Hazardous Materials in any of
the Properties (all the foregoing, collectively, the "Indemnified Liabilities"),
provided that Borrower shall have no obligation hereunder with respect to
Indemnified Liabilities arising from (i) the willful misconduct of any such
Lender or (ii) legal proceedings commenced against any such Lender by any
security holder or creditor thereof arising out of and based upon rights
afforded any such security holder or creditor solely in its capacity as such.
10.8 Adjustments; Setoff.
(a) If any Lender (a "benefitted Lender") shall at any time
receive any payment of all or part of its Loan, or interest thereon, or receive
any collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the nature referred to in clause
(g) of Section 7.1, or otherwise) in a greater proportion than any such payment
to or collateral received by any other Lender, if any, in respect of such other
Lenders' Loan, or interest thereon, such benefitted Lender shall purchase for
cash from the other Lenders such portion of each such other Lender's Loan, or
shall provide such other Lenders with the benefits of any such collateral, or
the proceeds thereof, as shall be necessary to cause such benefitted Lender to
share the excess payment or benefits of such collateral or proceeds ratably with
each of the Lenders; provided that if all or any portion of such excess payment
or benefits is thereafter recovered from such benefitted Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the extent
of such recovery, but without interest. Borrower expressly consents to the
foregoing arrangements and agrees that each Lender so purchasing a portion of
another Lender's Loan may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as fully as if such
Lender were the direct holder of such portion.
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(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to
Borrower, any such notice being expressly waived by Borrower to the extent
permitted by applicable law, upon
(i) the filing of a petition under any of the provisions of
the federal bankruptcy act or amendments thereto, by or against;
(ii) the making of an assignment for the benefit of creditors
by;
(iii) the application for the appointment, or the appointment,
of any receiver of, or of any of the property of;
(iv) the issuance of any execution against any of the property
of;
(v) the issuance of a subpoena or order, in supplementary
proceedings, against or with respect to any of the property of; and/or
(vi) or the issuance of a warrant of attachment against any of
the property of;
Borrower to set off and apply against any indebtedness, whether matured or
unmatured, of Borrower to such Lender, any amount owing from such Lender to
Borrower, at or at any time after, the happening of any of the above-mentioned
events, and the aforesaid right of set off may be exercised by such Lender
against Borrower or against any trustee in bankruptcy, debtor in possession,
assignee for the benefit of creditors, receiver, or execution, judgment or
attachment creditor of Borrower, or against anyone else claiming through or
against Borrower or such trustee in bankruptcy, debtor in possession, assignee
for the benefit of creditors, receiver, or execution, judgment or attachment
creditor, notwithstanding the fact that such right of set off shall not have
been exercised by such Lender prior to the making, filing or issuance, or
service upon such Lender of, or of notice of, any such petition; assignment for
the benefit of creditors; appointment or application for the appointment of a
receiver; or issuance of execution, subpoena or order of warrant. Each Lender
agrees promptly to notify Borrower, Agent and Administrative Agent after any
such set off and application made by such Lender; provided that the failure to
give such notice shall not affect the validity of such set off and application.
The proceeds of any set off or application pursuant to this subsection (b) of
Section 10.8 shall be distributed in accordance with the preceding subsection
(a).
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10.9 Nonliability of Trustees.
(a) THE DECLARATION OF TRUST ESTABLISHING BORROWER, DATED
OCTOBER 9, 1986, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (THE
"DECLARATION"), IS DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF
THE STATE OF MARYLAND, PROVIDES THAT THE NAME "HEALTH AND RETIREMENT PROPERTIES
TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS TRUSTEES,
BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER,
EMPLOYEE OR AGENT OF BORROWER SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY
OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, BORROWER. ALL PERSONS
DEALING WITH BORROWER, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF BORROWER FOR
THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
(b) THE DECLARATIONS OF TRUST ESTABLISHING HUB PROPERTIES
TRUST DATED SEPTEMBER 12, 1996, HUB ACQUISITION TRUST DATED April 14, 1997, HUB
LA PROPERTIES TRUST DATED MAY 12, 1997, HUB RI PROPERTIES TRUST DATED NOVEMBER
3, 1997 AND HUB WOODMONT INVESTMENT TRUST DATED JANUARY 30, 1998, A COPY OF EACH
OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (THE "TRUST SUBSIDIARIES
DECLARATIONS"), IS DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF
THE STATE OF MARYLAND, PROVIDES THAT THE NAMES "HUB PROPERTIES TRUST", "HUB
ACQUISITION TRUST", "HUB LA PROPERTIES TRUST", "HUB RI PROPERTIES TRUST" and
"HUB WOODMONT INVESTMENT TRUST" REFER TO THE RESPECTIVE TRUSTEES UNDER THE
RESPECTIVE TRUST SUBSIDIARIES DECLARATIONS COLLECTIVELY AS TRUSTEES, BUT NOT
INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE
OR AGENT OF ANY OF THE TRUST SUBSIDIARIES SHALL BE HELD TO ANY PERSONAL
LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, SUCH
TRUST SUBSIDIARY. ALL PERSONS DEALING WITH EACH TRUST SUBSIDIARY, IN ANY WAY,
SHALL LOOK ONLY TO THE ASSETS OF SUCH TRUST SUBSIDIARY FOR THE PAYMENT OF ANY
SUM OR THE PERFORMANCE OF ANY OBLIGATION.
[Remainder of page left blank intentionally]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered in New York, New York by their
proper and duly authorized officers as of the day and year first above written.
HEALTH AND RETIREMENT
PROPERTIES TRUST
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
DRESDNER KLEINWORT ▇▇▇▇▇▇
NORTH AMERICA LLC, as Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: E.S.I
By: /s/ I.D. Leigh
Name: I.D. Leigh
Title: E.V.P.
DRESDNER BANK AG, New York Branch
and Grand Cayman Branch, as a
Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Treasurer
FLEET NATIONAL BANK,
as Administrative Agent and as a
Lender
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
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BANK OF MONTREAL,
as a Co-Agent and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
CIBC INC.,
as a Co-Agent and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Director
CIBC ▇▇▇▇▇▇▇▇▇▇▇
Corp., as Agent
CREDIT LYONNAIS,
New York Branch,
as a Co-Agent and as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
FIRST UNION NATIONAL BANK,
as a Co-Agent and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Sr. Vice President
KEY CORPORATE CAPITAL, INC.,
as a Co-Agent and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Sr. Vice President
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SOCIETE GENERALE,
as a Co-Agent and as a Lender
By: /s/ Sedare ▇▇▇▇▇▇▇
Name: Sedare ▇▇▇▇▇▇▇
Title: Vice President
THE SUMITOMO BANK, LIMITED,
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Sr. Vice President &
Regional Mgr. (East)
ABBEY NATIONAL TREASURY SERVICES
PLC, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Asset Backed Securities
▇▇▇▇▇ BANK N.A.,
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
VIA BANQUE,
as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ Prot
Name: ▇▇▇▇▇▇▇▇ Prot
Title: Senior Director
-102-
By: /s/ ▇.▇. ▇▇▇▇▇
Name: ▇.▇. ▇▇▇▇▇
Title: Director General
THE BANK OF NEW YORK,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
BANK HAPOALIM, B.M.
as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: First Vice President
and Branch Manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
THE BANK OF NOVA SCOTIA,
New York Agency,
as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Sr. Relationship Mgr.
BANQUE NATIONAL DE PARIS,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. Day
Name: ▇▇▇▇▇▇▇ ▇. Day
Title: Asst. Vice President
-103-
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD.,
New York Branch,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Deputy General Mgr.
DG BANK, DEUTSCHE
GENOSSENSCHAFTSBANK,
Cayman Island Branch,
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Sr. Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
BANK OF IRELAND,
as a Lender
By: /s/
Name:
Title:
ARAB AMERICAN BANK,
as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
-104-
RZB-FINANCE LLC,
as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
COMERICA BANK,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Account Officer
For the purposes of Section 9: HEALTH AND RETIREMENT
PROPERTIES INTERNATIONAL, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
CAUSEWAY HOLDINGS INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
CHURCH CREEK CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
-105-
HUB PROPERTIES TRUST
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
HUB ACQUISITION TRUST
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
HUB LA PROPERTIES TRUST
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
HUB RI PROPERTIES TRUST
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
HUB WOODMONT INVESTMENT TRUST
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
HUB REALTY FUNDING, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
-106-
HUB MANAGEMENT, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
HUB REALTY COLLEGE PARK, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
INDEMNITY COLLECTION
CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
HUB REALTY KANSAS CITY, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
HUB REALTY GOLDEN, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
HUB REALTY COLLEGE PARK I, LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
-107-
HUB LA LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
HUB WOODMONT LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
-108-
EXHIBIT A
[FORM OF PROMISSORY NOTE]
PROMISSORY NOTE
$___________ New York, New York
_________, 1998
FOR VALUE RECEIVED, the undersigned, HEALTH AND RETIREMENT
PROPERTIES TRUST, a real estate investment trust organized under the laws of the
State of Maryland (the "Borrower"), hereby unconditionally promises to pay to
the order of ___________ (the "Lender") in lawful money of the United States of
America and in immediately available funds, the lesser of (a) ____________ or
(b) the unpaid outstanding principal amount from time to time of the Loans from
the Lender to the Borrower pursuant to the Loan Agreement hereinafter referred
to, on the Termination Date; provided that Loans denominated in GBP shall be
repaid in the currency required by and otherwise in accordance with and subject
to the terms of the Loan Agreement.
The undersigned further agrees to pay interest in like money
on the unpaid principal amount of such Loans (including, without limitation, any
interest accrued and unpaid as at the date of this Note) on the dates and at the
rate or rates and in the currency provided for in the Loan Agreement until paid
in full (both before and after judgment). The holder of this Note is authorized
to endorse from time to time the date and amount of the Loans, any conversions
or continuations thereof, each payment of principal with respect thereto and
whether such Loans are Base Rate Loans, Eurocurrency Loans or Alternate Rate
Loans on the schedule annexed hereto and made a part hereof, or on a
continuation thereof which shall be attached hereto and made a part hereof,
which endorsements shall constitute prima facie evidence of the accuracy of the
information endorsed. Any failure to make any such endorsement, however, shall
not limit or otherwise affect the obligations of Borrower under this Note.
All payments of principal and interest hereunder shall be made
to the account of the Administrative Agent referred to below designated in or
pursuant to the Loan Agreement for payments thereunder for the benefit of the
Lender named herein.
This Note is one of the Notes referred to in the Fourth
Amended and Restated Revolving Loan Agreement dated as of April 2, 1998 among
the Borrower, the Lenders named therein, Dresdner Kleinwort ▇▇▇▇▇▇ North America
LLC, as Agent, and Fleet National Bank, as Administrative Agent (as the same may
be or may have been amended, restated, supplemented or otherwise modified from
time to time, the "Loan Agreement"). The holder of this Note is entitled to the
benefits of the Loan Agreement. Terms defined in the Loan Agreement and not
otherwise defined herein are used herein with the same meanings. Reference is
made to the Loan Agreement for
A-1
provisions for the prepayment hereof and the acceleration of the maturity
hereof.
The Borrower promises to pay all costs and expenses, including
reasonable attorneys' fees, incurred in the collection or enforcement of this
Note. The Borrower hereby waives diligence, presentment, protest, demand and
notice of every kind and, to the full extent permitted by law, the right to
plead any statute of limitations as a defense to any demand hereunder.
The Declaration of Trust of the Borrower provides that the
name "Health and Retirement Properties Trust" refers to the Trustees under the
Declaration of Trust (the "Trustees") collectively as Trustees, but not
individually or personally, and that no Trustee, officer, shareholder, employee
or agent of the Borrower shall be held to any personal liability, jointly or
severally, for any obligation of, as claims against, the Borrower.
This Note shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York.
HEALTH AND RETIREMENT
PROPERTIES TRUST
By:
Name:
Title:
A-2
Amount and
Date of Currency of Eurocurrency,
Loan, Loan, Conversion Base Rate or Amount of Notation
Conversion or Continuation Alternate Rate Principal Made By
or Loan Repaid
Continuation
A-3
EXHIBIT B
[FORM OF NOTICE OF BORROWING]
NOTICE OF BORROWING
Pursuant to that certain Fourth Amended and Restated Revolving
Loan Agreement dated as of April 2, 1998 (such agreement, as it may be or may
have been amended, restated, supplemented or otherwise modified from time to
time, the "Loan Agreement"; capitalized terms used herein without definition
shall have the respective meanings assigned to those terms in the Loan
Agreement) among Health and Retirement Properties Trust ("Borrower"), the
Lenders party thereto, Dresdner Kleinwort ▇▇▇▇▇▇ North America LLC, as Agent,
and Fleet National Bank, as Administrative Agent, this certificate represents
Borrower's Notice of Borrowing under Section 2.3(a) of the Loan Agreement for
the borrowing described below (the "Borrowing"). The information relating to the
Borrowing required by Section 2.3(a) of the Loan Agreement is as follows:
(i) The proposed Borrowing Date is [date].
(ii) The proposed Borrowing is to be denominated in [U.S.$]
[GBP].
(iii) The proposed Borrowing is of [$][GBP]_________ [in
Eurocurrency Loans] [and] [$][GBP]__________ in Base Rate
Loans].
[(iv) The initial Interest Period applicable to the
Eurocurrency Loans, if applicable, is [one, two, three or six months][state
other period].]
[(v)] The account of Borrower to which the net proceeds of the
requested Loans are to be credited is:
[State Street Bank and Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
ABA No. ▇▇▇-▇▇▇▇-▇▇
Account Name: Health and Retirement Properties
Trust
Account No.: ▇▇▇▇-▇▇▇-▇]
[or give details of other account]
[(vi)] Borrower's representations and warranties contained in
the Loan Documents are true, correct and accurate in all material respects to
the same extent as though made on and as of the date hereof unless stated in the
relevant Loan Document to relate to a specific earlier date, in which case such
B-1
representations and warranties are true, correct and complete in all material
respects as of such earlier date.
[(vii)] No event has occurred and is continuing or would
result from the proposed Borrowing that would constitute a Default or Event of
Default.
[(viii)] The amount of the proposed Borrowing will not cause
the aggregate outstanding principal amount of the Loans to exceed the
Commitments currently in effect.
[(xi)] The amount of the proposed Borrowing will not cause the
aggregate amount of the Loans outstanding denominated in GBP to exceed the
Equivalent Amount of $100,000,000 (as determined in accordance with Section
1.3(b) of the Loan Agreement).
[Borrower confirms to you pursuant to Section 2.3(a) of the
Loan Agreement that Borrower has irrevocably given telephonic notice of such
borrowing under the Loan Agreement pursuant to the telephone conversation on
[date] between ____________ and ____________.]
Please pay the proceeds of such Loans into the account whose
details are given below:
DATED: HEALTH AND RETIREMENT PROPERTIES TRUST
By:
Its:
B-2
EXHIBIT C
[FORM OF NOTICE OF CONTINUATION/CONVERSION]
NOTICE OF CONTINUATION/CONVERSION
Pursuant to that certain Fourth Amended and Restated Revolving
Loan Agreement dated as of ________________, 1998 (such agreement, as it may be
or may have been amended, restated, supplemented or otherwise modified from time
to time, the "Loan Agreement"; capitalized terms used herein without definition
shall have the respective meanings assigned to those terms in the Loan
Agreement) among Health and Retirement Properties Trust ("Borrower"), the
Lenders party thereto, Dresdner Kleinwort ▇▇▇▇▇▇ North America LLC, as Agent and
Fleet National Bank, as Administrative Agent, this certificate represents
Borrower's Notice of Continuation/Conversion under Section 2.5(b) of the Loan
Agreement for the Loans specified below.
Borrower hereby requests to [continue as Eurocurrency Loans
$__________ in aggregate principal amount of the outstanding Eurocurrency Loans,
the current Interest Period of which ends on __________, 19__][and][convert to
[Base Rate Loans][Eurocurrency Loans] $__________ in aggregate principal amount
of the outstanding [Eurocurrency Loans, the current Interest Period of which
ends on __________][Base Rate Loans][Alternate Rate Loans]]. The date for such
[continuation] [and] [conversion] shall be . [The Interest Period for such
continued or converted (as applicable) Eurocurrency Loans is requested to be [a
__________ month period][a __________ period, if agreed by all Lenders.]
Borrower hereby certifies that:
(i) No event has occurred and is continuing or would result
from the proposed Borrowing that would constitute a Default or Event of
Default.
(ii) Borrower's representations and warranties contained in
the Loan Documents are true, correct and accurate in all material
respects to the same extent as though made on and as of the date hereof
unless stated in the relevant Loan Document to relate to a specific
earlier date, in which case such representations and warranties are
true, correct and complete in all material respects as of such earlier
date.
[Borrower confirms to you pursuant to Section 2.5(b) of the
Loan Agreement that Borrower has irrevocably given telephonic notice of such
continuation/conversion under the Loan Agreement pursuant to the telephone
conversation on [date] between ____________ and __________.]
C-1
DATED: HEALTH AND RETIREMENT PROPERTIES TRUST
By:
Its:
C-2
EXHIBIT D
[FORM OF SUBORDINATION AGREEMENT]
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT (this "Agreement") is dated as of
April 2, 1998 among REIT MANAGEMENT & RESEARCH, INC., a Delaware corporation
(together with its successors and assigns, the "Subordinated Creditor"), FLEET
NATIONAL BANK (the "Administrative Agent"), on behalf of itself, and the Agent
(both as defined below) and the other lenders (the "Lenders") named in the Loan
Agreement (as defined below) and the other holders or obligees from time to time
of or with respect to the Senior Obligations (as defined below) as beneficiaries
hereof (the Administrative Agent, Agent, Lenders and such other holders and
obligees, together the "Senior Creditors" and each a "Senior Creditor"), and
HEALTH AND RETIREMENT PROPERTIES TRUST, a real estate investment trust formed
under the laws of the State of Maryland, and its successors and assigns (the
"Borrower").
WHEREAS, pursuant to the Loan Agreement, each of the Lenders
has extended a commitment to make or continue Loans (as defined in the Loan
Agreement) to the Borrower; and
WHEREAS, pursuant to the Advisory Agreement (as defined
below), the Borrower engaged the Subordinated Creditor for the purpose of, among
other things, providing the Borrower management and administrative services with
respect to the Borrower's properties; and
WHEREAS, it is a condition precedent to the Lenders'
obligation to make or continue Loans to the Borrower pursuant to the Loan
Agreement that the Advisor and the Borrower enter into this Agreement.
NOW, THEREFORE, in consideration of the Loans to be made or
continued by the Lenders to the Borrower pursuant to the Loan Agreement, and in
consideration of the mutual agreements set forth herein, the parties hereto
hereby agree as follows:
SECTION 1.
1.1 As used herein the following terms shall have the
following meanings:
"Administrative Agent" has the meaning set forth in the
recitals hereto and shall include any other Senior Creditor
D-1
appointed to act as administrative agent under the Loan Agreement instead of
such Administrative Agent.
"Advisory Agreement" means the Advisory Agreement, dated as of
January 1, 1998, by and between the Borrower and the Subordinated Creditor, as
amended, supplemented or modified from time to time in a manner not inconsistent
with the terms hereof or of the Loan Agreement.
"Agent" means Dresdner Kleinwort ▇▇▇▇▇▇ North America LLC, as
agent under the Loan Agreement.
"Borrower" has the meaning set forth in the recitals hereto.
"Lenders" has the meaning set forth in the recitals hereto.
"Loans" means the loans made or continued or to be made by the
Lenders to the Borrower pursuant to the Loan Agreement.
"Loan Agreement" means the Fourth Amended and Restated
Revolving Loan Agreement dated as of April 2, 1998, among the Borrower, the
Agent, the Administrative Agent, and the Lenders, as the same may be amended,
supplemented or modified from time to time.
"Loan Documents" has the meaning set forth in the Loan
Agreement.
"Notes" shall mean, collectively, the promissory notes of the
Borrower to the Lenders outstanding from time to time under the Loan Agreement.
"Senior Creditor" has the meaning set forth in the recitals
hereto.
"Senior Obligations" shall mean (a) the principal amount of,
and accrued interest on (including, without limitation, any interest which
accrues or would accrue after the commencement of any case, proceeding or other
action relating to the bankruptcy, insolvency or reorganization of the Borrower,
whether or not allowed as a claim in such case, proceeding or other action), the
Loans and the Notes, and (b) all other indebtedness, obligations and liabilities
of the Borrower to the Agent, Administrative Agent, or any of the Lenders now
existing or hereafter incurred or created under the Notes, the Loan Agreement
and any other Loan Document.
"Subordinated Creditor" has the meaning set forth in the
recitals hereto.
D-2
"Subordinated Obligations" shall mean any and all fees,
commissions, compensation and other amounts (other than reimbursements for
reasonable out of pocket expenses of the Advisor) payable to the Advisor or any
of its affiliates from time to time pursuant to the Advisory Agreement or any
other agreement now or hereafter entered into by the Borrower and the Advisor.
1.2 Other Definitional Provisions.
(a) All terms used in this Agreement and defined in the Loan
Agreement and not otherwise defined herein shall have the meanings so defined in
the Loan Agreement.
(b) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section,
schedule and exhibit references are to this Agreement unless otherwise specified
and, where appropriate, the singular shall include the plural.
SECTION 2.
2.1 The Subordinated Creditor agrees, for itself and any
future holder of the Subordinated Obligations, that the Subordinated Obligations
are and shall at all times during the term hereof be expressly subordinate and
junior in right of payment (as defined in Section 2.2) to all Senior
Obligations, and that it shall not at any time during such term file or
participate in the filing of any petition to initiate proceedings under the U.S.
Bankruptcy Code, 11 U.S.C. ss. 101 et seq., against the Borrower.
2.2 "Subordinate and junior in right of payment" shall mean
that:
(a) At any time prior to the payment in full of all
Senior Obligations no direct or indirect payment on account of
the Subordinated Obligations shall be made, nor shall any
property or assets of the Borrower or any of its Subsidiaries
be applied to the satisfaction of the Subordinated
Obligations, in whole or in part, nor shall the Subordinated
Creditor take, demand, receive or institute legal proceedings
to recover, and the Borrower will not make, give or permit,
directly or indirectly, by set-off, redemption, purchase or in
any other manner, any payment or security for the whole or any
part of the Subordinated Obligations (all of the foregoing
actions being hereinafter referred to as "Restricted
Actions"), if at the time of or immediately after giving
effect to such Restricted Action a Default or an Event of
Default exists or would exist and is or would be continuing.
D-3
(b) (i) In the event of any distribution, division or
application, partial or complete, voluntary or involuntary, by
operation of law or otherwise, of all or any substantial part
of the property, assets or business of the Borrower or the
proceeds thereof, to any creditor or creditors of the Borrower
other than in the ordinary course of business or as permitted
in the Loan Agreement or (ii) upon any indebtedness of the
Borrower becoming due and payable (or a proof of claim in
respect thereof being filed in any applicable proceeding) by
reason of any liquidation, dissolution or other winding up of
the Borrower or its business or by reason of any sale,
receivership, insolvency, reorganization or bankruptcy
proceedings, assignment for the benefit of creditors,
arrangement or any proceeding by or against the Borrower for
any relief under any bankruptcy, reorganization or insolvency
law or laws, Federal or state, or any law, Federal or state,
relating to the relief of debtors, readjustment of
indebtedness, reorganization, composition, or extension, or
(iii) in the event that any amounts owing under the Loan
Agreement, the Notes or any of the other Loan Documents have
become, or have been declared to be, due and payable (and have
not been paid in accordance with their terms), then and in any
such event, any payment or distribution of any kind or
character in respect of the Borrower, whether in cash,
property or securities, which, but for the subordination
provisions contained herein, would otherwise be payable or
deliverable to the Subordinated Creditor pursuant to or in
respect of the Subordinated Obligations, shall instead be paid
over or delivered to the Administrative Agent on behalf of the
Senior Creditors which have Senior Obligations which are then
due and payable (or in respect of which a proof of claim has
been filed in any applicable proceeding) and promptly be
applied (subject to applicable law) as a payment or prepayment
on account of the Senior Obligations which are then due and
payable pro rata in accordance with the amounts thereof then
due and payable (or in respect of which a proof of claim has
been filed in any applicable proceeding) and in the order of
priority for payment of Senior Obligations set forth in the
Loan Agreement, and the Subordinated Creditor shall not
receive any such payment or distribution or any benefit
therefrom unless and until the Senior Obligations which are
then due and payable (or in respect of which a proof of claim
has been filed in any applicable proceeding) shall have been
fully and finally paid and satisfied.
D-4
SECTION 3.
3.1 The Subordinated Creditor irrevocably authorizes and
empowers the Administrative Agent on behalf of the Senior Creditors under the
circumstances set forth in clause (i) or (ii) of Section 2.2(b), to demand, ▇▇▇
for, collect and receive every such payment or distribution referred to in such
Section and give acquittance therefor, and take such other proceedings, in the
name of the Senior Creditors or in the name of the Subordinated Creditor or
otherwise, as the Administrative Agent may deem reasonably necessary or
advisable for the enforcement of the subordination provisions of this Agreement.
The Subordinated Creditor hereby agrees, under the circumstances set forth in
clause (i) or (ii) of Section 2.2(b), duly and promptly to take such action as
may be reasonably requested at any time and from time to time by the
Administrative Agent to file appropriate proofs of claim in respect of the
Subordinated Obligations, and to execute and deliver such powers of attorney,
assignments or other instruments as may be reasonably requested by the
Administrative Agent in order to enable the Administrative Agent on behalf of
the Senior Creditors to enforce any and all claims upon or in respect of the
Subordinated Obligations and to collect and receive any and all payments or
distributions which may be payable or deliverable at any time upon or in respect
of the Subordinated Obligations. Any such amounts received by the Administrative
Agent shall be applied (subject to applicable law) to the payment of the Senior
Obligations pro rata in accordance with the amounts thereof then due and payable
(or in respect of which proofs of claim have been filed in any applicable
proceeding) and in the order of priority for payment of Senior Obligations set
forth in the Loan Agreement.
3.2 Should any payment or distribution or security, or the
proceeds of any thereof, be collected or received by the Subordinated Creditor
pursuant to or in respect of the Subordinated Obligations, and such collection
or receipt is at the time prohibited hereunder (or the making of such payment or
distribution was so prohibited on the date of making thereof), the Subordinated
Creditor will forthwith turn over the same to the Administrative Agent, in the
form received (except for the endorsement or the assignment of the Subordinated
Creditor when necessary) and, until so turned over, the same shall be held in
trust by the Subordinated Creditor as the property of the Senior Creditors. Any
such amounts received by the Administrative Agent shall be applied (subject to
applicable law) to the payment of the Senior Obligations pro rata in accordance
with the amounts thereof then due and payable (or in respect of which proofs of
claim have been filed in any applicable proceeding) and in the order of priority
for payment of Senior Obligations set forth in the Loan Agreement.
3.3 (a) Subject to the provisions of paragraph (b) of this
Section 3.3, the Subordinated Creditor shall be subrogated to the rights of the
Senior Creditors to receive payments or distributions of cash, property or
securities made on the Senior Obligations until the Senior Obligations shall be
paid in full;
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and, for the purposes of such subrogation, payments or distributions to the
Senior Creditors of any cash, property or securities to which the Subordinated
Creditor would be entitled except for the provisions of this Agreement shall, as
between the Borrower and its creditors other than the Senior Creditors and the
Subordinated Creditor, be deemed to be a payment by the Borrower to or on
account of Subordinated Obligations, it being understood that the provisions of
this Agreement are and are intended solely for the purpose of defining the
relative rights of the Subordinated Creditor, on the one hand, and the Senior
Creditors, on the other hand. The purpose of this Section 3.3 is to grant to the
Subordinated Creditor the same rights against the Borrower with respect to the
aggregate amount of such payments or distributions as the Senior Creditors would
have against the Borrower if such aggregate amount were considered overdue
Senior Obligations.
(b) Notwithstanding any payment or payments made by the
Subordinated Creditor hereunder or any application of funds of the Subordinated
Creditor by the Administrative Agent or any Senior Creditor, the Subordinated
Creditor shall not be entitled to be subrogated to any of the rights of any
Senior Creditor against the Borrower or against or under any collateral security
or guarantee or right of offset held by or for the benefit of any Senior
Creditor for the payment of the Senior Obligations, nor shall the Subordinated
Creditor seek any reimbursement from the Borrower or against or under any
collateral security or guarantee or right of offset in respect of payments made
by the Subordinated Creditor hereunder, until all amounts owing to each Senior
Creditor by the Borrower for or on account of the Senior Obligations are finally
paid in full.
SECTION 4.
4.1 The Subordinated Creditor represents, warrants and
covenants that:
(a) The Advisory Agreement delivered to the
Administrative Agent on the date hereof has been duly and
validly executed and constitutes the only Contractual
Obligation of the Borrower to the Advisor and of the Advisor
to the Borrower;
(b) Subordinated Obligations currently or hereafter
payable to the Subordinated Creditor by the Borrower (i) are
or will be payable free and clear of any security interests,
liens, charges or encumbrances whatsoever arising from,
through or under the Subordinated Creditor other than the
interest of the Senior Creditors under this Agreement, and
(ii) are or will be payable solely and exclusively to the
Subordinated Creditor and to no other Person (other than to
the Administrative Agent on behalf of the Senior Creditors
hereunder), without deduction for any defense, offset or
counterclaim;
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(c) the Subordinated Creditor has full power,
authority and legal right to execute, deliver and perform this
Agreement, and the execution, delivery and performance of this
Agreement have been duly authorized by all necessary action on
the part of the Subordinated Creditor, do not require any
authorization or other action on the part of its shareholders,
do not require any approval or consent of any trustee or
holders of any indebtedness or obligations of the Subordinated
Creditor (other than those which have been obtained) and will
not violate any Requirement of Law or Contractual Obligation
applicable to the Subordinated Creditor;
(d) no consent, authorization of, filing with, or
other act by or in respect of any Governmental Authority is
required in connection with the authorization, execution,
delivery and performance by the Subordinated Creditor of this
Agreement (other than those which have been obtained and are
in full force and effect); and
(e) this Agreement constitutes a legal, valid and
binding obligation of the Subordinated Creditor, enforceable
against the Subordinated Creditor in accordance with its
terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally applicable to, and
in any proceeding under such laws relating to, the
Subordinated Creditor as debtor or insolvent.
4.2 The Borrower represents, warrants and covenants that:
(a) the Borrower has full power, authority and legal
right to execute, deliver and perform this Agreement, and the
execution, delivery and performance of this Agreement have
been duly authorized by all necessary action on the part of
the Borrower, do not require any authorization or other action
on the part of its shareholders, do not require any approval
or consent of any trustee or holders of any indebtedness or
obligations of the Borrower (other than those which have been
obtained) and will not violate any Requirement of Law or
Contractual Obligation applicable to the Borrower;
(b) no consent, authorization of, filing with, or
other act by or in respect of any Governmental Authority is
required in connection with the authorization, execution,
delivery and performance by the Borrower of this Agreement
(other than those which have been obtained and are in full
force and effect); and
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(c) this Agreement constitutes a legal, valid and
binding obligation of the Borrower, enforceable against the
Borrower in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting enforcement of creditors' rights
generally applicable to, and in any proceeding under such laws
relating to, the Borrower as debtor or insolvent.
SECTION 5.
5.1 No payment or payments made by the Borrower or any other
Person or received or collected by the Administrative Agent or any Senior
Creditor from the Borrower or any other Person by virtue of any action or
proceeding or any set-off or appropriation or application at any time or from
time to time in reduction or payment of the Senior Obligations shall be deemed
to modify, reduce, release or otherwise affect the obligations of the
Subordinated Creditor hereunder or the subordination provided for herein which
shall, notwithstanding any such payment or payments, continue until the Senior
Obligations are paid in full. The Subordinated Creditor hereby consents that,
without the necessity of any reservation of rights against the Subordinated
Creditor and without notice to or further assent by the Subordinated Creditor,
any demand for payment of any of the Senior Obligations made by the
Administrative Agent or any Senior Creditor may be rescinded in whole or in part
by the Administrative Agent or such Senior Creditor and any of the Senior
Obligations continued, and the Senior Obligations, or the liability of any other
party upon or for any part thereof, and the Loan Agreement, other Loan Documents
or any other collateral security document, collateral security or guarantee from
time to time therefor or relating thereto, or other document or right with
respect thereto, with respect to the Senior Creditors or any particular Senior
Creditor may, from time to time, in whole or in part, be renewed, extended,
amended, modified, supplemented, accelerated, compromised, waived, sold,
exchanged, or be surrendered or released or terminated or be unconsummated, or
otherwise dealt with in any manner specified above or otherwise, in whole or in
part, as such Senior Creditor or Senior Creditors or the Administrative Agent
may deem advisable from time to time, all without the necessity of any
reservations of rights against the Subordinated Creditor and without notice to
or further assent by the Subordinated Creditor, which will remain bound
hereunder and all without affecting the subordination provided for herein,
notwithstanding any of the foregoing events or circumstances. The Administrative
Agent and the Senior Creditors shall have no obligation or duty to take, accept,
protect, secure, perfect, preserve or insure, or enforce or make demand in
respect of, any security interest, pledge, mortgage or other lien or
encumbrance, collateral security document or collateral security at any time
held or contemplated to be held as security for, or any guarantee or
contemplated guarantee of, the Senior Obligations. When making
D-8
any demand hereunder against the Subordinated Creditor, the Administrative Agent
may in its sole discretion, but shall be under no obligation to, make a similar
demand on the Borrower or any co-obligor or guarantor, or proceed against any
collateral security or under any collateral security document or guarantee or
other document or right, and any failure by the Administrative Agent to make any
such demand or to collect any payments from the Borrower or any such co-obligor
or guarantor, or proceed against any collateral security or under any collateral
security document or guarantee or other document or right, or any release of the
Borrower or such co-obligor or guarantor or under or in respect of any
collateral security or any collateral security document or guarantee or other
document or right, shall not affect the subordination provided for herein or
relieve the Subordinated Creditor of its obligations or liabilities hereunder,
and shall not impair or affect the rights and remedies, express or implied, or
as a matter of law, of the Administrative Agent or any Senior Creditor against
the Subordinated Creditor. For the purposes hereof "demand" shall include the
commencement and continuance of any legal proceedings.
5.2 The Subordinated Creditor irrevocably waives any and all
notice of the creation, renewal, extension or accrual of any of the Senior
Obligations and notice of or proof of reliance by any Senior Creditor upon this
Agreement, and the Senior Obligations, existing and future, and all dealings
between the Borrower or the Subordinated Creditor and the Administrative Agent
and each Senior Creditor, and any of them, shall conclusively be deemed and
presumed to have been created, contracted, incurred, had or consummated in
reliance upon this Agreement. The Subordinated Creditor irrevocably waives
notice of or proof of reliance on this Agreement and diligence, protest, demand
for payment and notice of default or nonpayment and any other notice or demand
whatsoever to or upon the Borrower or the Subordinated Creditor with respect to
the Senior Obligations and any right to notice of resale of any collateral
security (if any), and, in respect of the Administrative Agent and the Senior
Creditors, any other rights of a "debtor" under the Uniform Commercial Code as
in effect from time to time in the State of New York (or any other relevant
jurisdiction) (collectively, the "UCC"), and irrevocably agrees not to assert in
any suit, action or other legal proceeding relating to this Agreement, or
otherwise, that it has, in respect of the Administrative Agent and the Senior
Creditors, status as, or any rights of, a "debtor" under the UCC, or any defense
to or discharge of its obligations hereunder or the subordination contemplated
herein based on any such rights. This Agreement shall be construed as a
continuing, absolute, unconditional and irrevocable subordination without regard
to the validity, regularity or enforceability of any of the Loan Documents, any
of the Senior Obligations or any security interest, pledge, mortgage or other
lien or encumbrance, or other collateral security or collateral security
document, or any guarantee therefor or other
D-9
document or right with respect thereto at any time or from time to time held by
or in favor of any Senior Creditor and without regard to any defense, set-off or
counterclaim which may at any time be available to or be asserted by the
Borrower, the Subordinated Creditor or any other Person against the
Administrative Agent or any Senior Creditor, or any other circumstance
whatsoever (with or without notice to or knowledge of the Borrower or the
Subordinated Creditor or any other Person) which constitutes, or might be
construed to constitute, an equitable or legal discharge or defense of the
Borrower for or to any of the Senior Obligations, or an equitable or legal
discharge or defense of the Subordinated Creditor under this Agreement or
otherwise, in bankruptcy or in reorganization or in any other instance, and the
obligations and liabilities of the Subordinated Creditor hereunder and the
subordination contemplated herein shall not be conditioned or contingent upon
the pursuit by the Administrative Agent, any Senior Creditor or any other Person
at any time of any right or remedy against the Borrower or against any other
Person which may be or become liable in respect of all or any part of the Senior
Obligations or against or under any security interest, pledge, mortgage or other
lien or encumbrance, or other collateral security or collateral security
document, or any guarantee or other document or right with respect thereto. This
Agreement shall remain in full force and effect and be binding in accordance
with and to the extent of its terms upon the Borrower and the Subordinated
Creditor and the successors and assigns thereof, and shall inure to the benefit
of each Senior Creditor, and its successors, endorsees, transferees and assigns,
until the Loan Agreement and all other Loan Documents have been terminated in
accordance with their terms and all the Senior Obligations and the obligations
and liabilities of the Subordinated Creditor under this Agreement shall have
been satisfied by final payment or performance in full.
5.3 This Agreement shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Senior Obligations is rescinded or must otherwise be restored or
returned by any Senior Creditor upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Borrower or the Subordinated Creditor, or
upon or as a result of the appointment of a receiver, intervenor or conservator
of, or trustee or similar officer for, the Borrower or the Subordinated Creditor
or any substantial part of their respective property, or for any other reason
whatsoever, all as though such payments had not been made.
SECTION 6.
6.1 The Subordinated Creditor will not (a) sell, assign, or
otherwise transfer, in whole or in part, the Subordinated Obligations or any
interest therein to any Person unless (x) such Person has expressly acknowledged
to the Administrative Agent, in writing in form and substance satisfactory to
the Administrative
D-10
Agent, the subordination provided for herein and agrees to be bound by all the
terms hereof, and (y) the Subordinated Creditor has expressly guaranteed to the
Administrative Agent, in writing in form and substance satisfactory to the
Administrative Agent, the performance by such Person of such Person's
obligations under Section 3.2 of this Agreement; or (b) create, incur or suffer
to exist any security interest, lien, charge or other encumbrance whatsoever
upon the Subordinated Obligations in favor of any Person unless the Subordinated
Creditor has obtained the prior written consent of the Administrative Agent
(which consent may be withheld in the Administrative Agent's sole discretion)
and such Person expressly acknowledges to the Administrative Agent in writing
the subordination provided for herein and agrees to be bound by all of the terms
hereof. Without the prior written consent of the Administrative Agent the
Subordinated Creditor and the Borrower will not amend or supplement the Advisory
Agreement as in effect on the date hereof or enter into any other agreement that
directly or indirectly (a) increases the Subordinated Obligations payable to the
Advisor or modifies the basis on which any Subordinated Obligations are payable
in a manner which could increase the Subordinated Obligations payable to the
Advisor or provides for any additional Subordinated Obligations to be paid to
the Advisor, or (b) provides for or results in Subordinated Obligations becoming
due and payable earlier than is contemplated by the Advisory Agreement as in
effect on the date hereof or (c) provides for or results in any services of the
Advisor contemplated by the Advisory Agreement being performed by any Person
(including any Affiliate of the Advisor) other than the Advisor.
6.2 Except as otherwise expressly set forth herein, this
Agreement is intended to create a relationship among independent contractors and
nothing in this Agreement shall be deemed to create a fiduciary, agency or trust
relationship in favor of the Advisor or the Borrower.
6.3 The Advisor hereby acknowledges receipt of copies of the
Loan Agreement and all other Loan Documents.
SECTION 7.
7.1 CHOICE OF LAW. THIS AGREEMENT SHALL BE A CONTRACT UNDER
AND SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS
PROVISIONS THEREOF.
7.2 SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL; ETC.
NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, THE SUBORDINATED CREDITOR
HEREBY IRREVOCABLY (a) SUBMITS TO THE NON-EXCLUSIVE PERSONAL JURISDICTION OF ANY
STATE OR FEDERAL COURT IN THE STATE OF NEW YORK IN ANY SUIT, ACTION OR OTHER
LEGAL
D-11
PROCEEDING RELATING TO THIS AGREEMENT; (b) AGREES THAT ALL CLAIMS IN RESPECT OF
ANY SUCH SUIT, ACTION OR OTHER LEGAL PROCEEDING MAY BE HEARD AND DETERMINED IN,
AND ENFORCED IN AND BY, ANY SUCH COURT; (c) WAIVES ANY OBJECTION THAT IT MAY NOW
OR HEREAFTER HAVE TO VENUE IN ANY SUCH COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM; (d) AGREES TO SERVICE OF PROCESS IN ANY SUCH PROCEEDING BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, OR BY TELEX, OR IN ANY OTHER
MANNER PERMITTED BY LAW, TO ANY THEN DESIGNATED AGENT FOR SERVICE OF PROCESS
("PROCESS AGENT") AT ANY SPECIFIED ADDRESS OR TO THE SUBORDINATED CREDITOR AT
ITS ADDRESS SET FORTH HEREIN OR TO SUCH OTHER ADDRESS OF WHICH THE
ADMINISTRATIVE AGENT SHALL HAVE BEEN NOTIFIED IN WRITING (SUCH SERVICE TO BE
EFFECTIVE ON THE EARLIER OF RECEIPT THEREOF OR, IN THE CASE OF SERVICE BY MAIL,
THE 5TH DAY AFTER DEPOSIT OF SUCH SERVICE IN THE MAILS AS AFORESAID), AND HEREBY
WAIVES ANY CLAIM OF ERROR ARISING OUT OF SERVICE OF PROCESS BY ANY METHOD
PROVIDED FOR HEREIN OR ANY CLAIM THAT SUCH SERVICE WAS NOT EFFECTIVELY MADE; (e)
AGREES THAT THE FAILURE OF ITS PROCESS AGENT FOR SERVICE OF PROCESS TO GIVE ANY
NOTICE OF ANY SUCH SERVICE OF PROCESS TO IT SHALL NOT IMPAIR OR EFFECT THE
VALIDITY OF SUCH SERVICE OR ANY JUDGMENT BASED THEREON; (f) TO THE EXTENT THAT
THE SUBORDINATED CREDITOR HAS ACQUIRED, OR HEREAFTER MAY ACQUIRE, ANY IMMUNITY
FROM JURISDICTION OF ANY SUCH COURT OR FROM LEGAL PROCESS THEREIN, WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SUCH IMMUNITY; (g) WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN CONNECTION WITH, OR WITH
RESPECT TO, ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING RELATING TO THIS
AGREEMENT, (i) ANY CLAIM THAT IT IS IMMUNE FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION, EXECUTION OR OTHERWISE) WITH RESPECT TO IT OR ANY OF ITS PROPERTY,
(ii) ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH
COURT, AND (iii) ANY RIGHT TO A JURY TRIAL; AND (h) AGREES THAT THE
ADMINISTRATIVE AGENT SHALL HAVE THE RIGHT TO BRING ANY LEGAL PROCEEDINGS
(INCLUDING A PROCEEDING FOR ENFORCEMENT OF A JUDGMENT ENTERED BY ANY OF THE
AFOREMENTIONED COURTS) AGAINST THE SUBORDINATED CREDITOR IN ANY OTHER COURT OR
JURISDICTION IN ACCORDANCE WITH APPLICABLE LAW. NOTWITHSTANDING THE FOREGOING,
NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT TO
BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT IN THE COURTS OF ANY
OTHER JURISDICTION OR THE RIGHT, IN CONNECTION WITH ANY LEGAL ACTION OR
PROCEEDING WHATSOEVER, TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW. THE SUBORDINATED CREDITOR HEREBY IRREVOCABLY DESIGNATES THE FIRM OF
▇▇▇▇▇▇▇▇ & WORCESTER LLP, ATTENTION: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ESQ., WITH OFFICES AT
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ AND ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (AND AT SUCH OTHER OFFICES OF PROCESS AGENT IN BOSTON,
MASSACHUSETTS AND NEW YORK, NEW YORK AS PROCESS AGENT SHALL NOTIFY
ADMINISTRATIVE AGENT IN WRITING), AS ITS PROCESS AGENT TO RECEIVE SERVICE OF ANY
AND ALL PROCESS AND DOCUMENTS ON ITS BEHALF IN ANY LEGAL PROCEEDING IN THE STATE
OF NEW YORK AND SUCH PROCESS AGENT, BY ITS ACKNOWLEDGMENT BELOW, IRREVOCABLY
AGREES TO SO ACT AS PROCESS AGENT FOR SERVICE OF PROCESS. IF SUCH PROCESS AGENT
SHALL
D-12
FOR ANY REASON FAIL TO ACT, OR BE PREVENTED FROM ACTING, AS SUCH PROCESS
AGENT, NOTICE THEREOF SHALL IMMEDIATELY BE GIVEN TO THE ADMINISTRATIVE AGENT BY
REGISTERED OR CERTIFIED MAIL AND THE SUBORDINATED CREDITOR AGREES PROMPTLY TO
DESIGNATE ANOTHER PROCESS AGENT IN THE CITY OF NEW YORK, SATISFACTORY TO THE
ADMINISTRATIVE AGENT TO SERVE IN PLACE OF SUCH PROCESS AGENT AND DELIVER TO THE
ADMINISTRATIVE AGENT WRITTEN EVIDENCE OF SUCH SUBSTITUTE PROCESS AGENT'S
ACCEPTANCE OF SUCH DESIGNATION. SUCH ACTING PROCESS AGENT SHALL NEVERTHELESS
CONTINUE TO SERVE AS PROCESS AGENT UNTIL ITS SUCCESSOR IS DULY APPOINTED.
7.3 Notices; Certain Payments. (a) All notices, consents and
other communications to the Borrower, the Subordinated Creditor or the
Administrative Agent relating hereto to be effective shall be in writing and
shall be deemed made (i) if by mail or facsimile, when received, (ii) if by
telex, when sent answerback received, and (iii) if by courier, when receipted
for, in each case addressed to them as follows or at such other address as
either of them may designate by written notice to the other: (w) the Borrower:
Health and Retirement Properties Trust, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President (facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇)
with a copy to ▇▇▇▇▇▇▇▇ & Worcester LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq. (facsimile no. (617)
338-2880); (x) the Subordinated Creditor: REIT Management & Research, Inc., ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Attention: President (facsimile no.
(▇▇▇) ▇▇▇-▇▇▇▇) with a copy to ▇▇▇▇▇▇▇▇ & Worcester LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq. (facsimile no.
(▇▇▇) ▇▇▇-▇▇▇▇); (y) the Administrative Agent: Fleet National Bank, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ (facsimile
no: (▇▇▇) ▇▇▇-▇▇▇▇).
(b) All payments to the Administrative Agent or the Senior
Creditors required to be made hereunder shall be made to Administrative Agent
for the account of the Senior Creditors at:
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA No. ▇▇▇▇▇▇▇▇▇
Account Name: Agency Services Wire Clearing
G/L Account No. 150352-03156
Reference: Health Retirement Properties Trust
Attention: Martlyn Corelli
together with irrevocable instructions to Administrative Agent to apply such
payment under this Agreement. The Administrative Agent may by written notice to
the Borrower and the Subordinated Creditor specify or change its account and
address for payment instructions hereunder.
D-13
7.4 No Waivers; Cumulative Remedies; Entire Agreement;
Headings; Successors and Assigns; Counterparts; Severability. No action,
failure, delay or omission by the Administrative Agent in exercising any rights
and remedies under the Loan Agreement or any of the other Loan Documents, this
Agreement or otherwise, shall constitute a waiver of, or impair, any of the
rights or privileges of any Senior Creditor hereunder. No single or partial
exercise of any such right or remedy shall preclude any other or further
exercise thereof or the exercise of any other right or remedy. Such rights and
remedies are cumulative and not exclusive of any rights and remedies provided by
law or otherwise available. No waiver of any such right or remedy shall be
effective unless given in writing by the Administrative Agent. No waiver of any
such right or remedy shall be deemed a waiver of any other right or remedy
hereunder or thereunder. Every right and remedy given by this Agreement or by
applicable law to or for the benefit of any Senior Creditor may be exercised
from time to time and as often as may be deemed expedient by the Administrative
Agent on behalf of such Senior Creditor. Except as expressly set forth herein,
this Agreement constitutes the entire agreement of the parties relating to the
subject matter hereof and thereof and there are no verbal agreements relating
hereto or thereto. Section headings herein shall have no legal effect. This
Agreement (including all covenants, representations, warranties, privileges,
rights, and remedies made or granted herein or therein) shall inure to the
benefit of, and be enforceable by, the Administrative Agent on behalf of each
Senior Creditor and its successors and assigns, except as otherwise expressly
provided in this Agreement. The Subordinated Creditor may not directly or
indirectly assign or transfer (whether by agreement, by operation of law or
otherwise) any of its rights or obligations and liabilities hereunder without
the prior written consent of the Administrative Agent. Each Senior Creditor may
grant participations in or otherwise sell or dispose of, any of its rights
hereunder to the extent permitted by and in accordance with the provisions of
the Loan Agreement. This Agreement may be executed in any number of separate
counterparts, each of which shall be deemed an original and all of which taken
together shall be deemed to constitute one and the same instrument. In the event
any one or more of the provisions contained in this Agreement should be held
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall not
in any way be affected or impaired thereby. The parties shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal, or unenforceable provisions.
7.5 The obligations of the Subordinated Creditor and the
Borrower under this Agreement shall survive the repayment of the Loan and the
cancellation of the Notes and the termination of the
D-14
other Loan Documents and the Senior Obligations, in the circumstances described
in Section 5.3.
7.6 The Subordinated Creditor and the Borrower agree to
execute and deliver such further documents and to do such other acts and things
as the Administrative Agent may reasonably request in order fully to effect the
purposes of this Agreement.
7.7 The subordination provisions contained herein are for the
benefit of the Administrative Agent and the Senior Creditors and their
respective successors and assigns as holders from time to time of Senior
Obligations and may not be rescinded or cancelled or modified in any way, nor,
unless otherwise expressly provided for herein, may any provision of this
Agreement be waived or changed without the express prior written consent thereto
of the Administrative Agent.
7.8 The Borrower and Subordinated Creditor will cause each
executed copy of the Advisory Agreement, any instrument or other writing
evidencing any of the obligations arising thereunder and any amendment,
modification or supplement thereto to bear a statement or legend to the effect
that the Subordinated Obligations are subordinate and junior in right of payment
to the Senior Obligations in the manner and to the extent herein set forth.
7.9 For purposes of this Agreement, Senior Obligations shall
cease to be such, or the outstanding principal amount thereof shall be deemed
reduced, only (i) upon actual receipt by the Subordinated Creditor of a notice
from the holder or holders of such Senior Obligations or obligee or obligees
with respect thereto terminating the constitution of such indebtedness,
obligations and/or liabilities as senior obligations under this Agreement or
reducing the amount of such indebtedness, obligations and/or liabilities so
constituted or (ii) when the Senior Obligations have in fact been finally paid
in full and the Loan Agreement and all other Loan Documents have been terminated
in accordance with their terms and the Subordinated Creditor shall have received
notice from the Administrative Agent of such fact. The Administrative Agent
shall within seven Business Days following receipt of a written request therefor
from the Subordinated Creditor confirm in writing to the Subordinated Creditor
whether or not the Senior Obligations have ceased to be such, pursuant to clause
(ii) of the previous sentence. At the request of the Administrative Agent, the
Subordinated Creditor will confirm in writing to any Senior Creditor that the
indebtedness, obligations and/or liabilities held by such Senior Creditor and
constituted as Senior Obligations hereunder are Senior Obligations. However, the
failure or refusal of the Subordinated Creditor to issue any such confirmation
shall not affect the status as Senior Obligations of any indebtedness,
obligations and/or liabilities constituting Senior Obligations in accordance
with the provisions of this Agreement.
D-15
7.10 (a) THE DECLARATION OF TRUST ESTABLISHING THE BORROWER,
DATED OCTOBER 9, 1986, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO
(THE "DECLARATION"), IS DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS AND
TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT THE NAME "HEALTH AND RETIREMENT
PROPERTIES TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS
TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER,
SHAREHOLDER, EMPLOYEE OR AGENT OF BORROWER SHALL BE HELD TO ANY PERSONAL
LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST,
BORROWER. ALL PERSONS DEALING WITH BORROWER, IN ANY WAY, SHALL LOOK ONLY TO THE
ASSETS OF BORROWER FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY
OBLIGATION.
[remainder of page intentionally left blank]
D-16
IN WITNESS WHEREOF, the parties hereto have caused this
Subordination Agreement to be duly executed and delivered as of the day and year
first above written.
HEALTH AND RETIREMENT
PROPERTIES TRUST
By:________________________
Name:
Title:
REIT MANAGEMENT & RESEARCH,
INC.
By:________________________
Name:
Title:
FLEET NATIONAL BANK,
individually and as
Administrative Agent on behalf
of the Senior Creditors
By:__________________________
Name:
Title:
Appointment as Process Agent
hereby acknowledged as of the
day and year first above written.
▇▇▇▇▇▇▇▇ & WORCESTER LLP
By:__________________________
Name:
Title:
D-17
EXHIBIT E
[FORM OF ASSIGNMENT AGREEMENT]
ASSIGNMENT AGREEMENT
This ASSIGNMENT AGREEMENT (this "Agreement") is entered into
by and between the parties designated as Assignor ("Assignor") and Assignee
("Assignee") above the signatures of such parties on the Schedule of Terms
attached hereto and hereby made an integral part hereof (the "Schedule of
Terms") and relates to that certain Loan Agreement described in the Schedule of
Terms (said Loan Agreement, as amended, supplemented or otherwise modified to
the date hereof and as it may hereafter be amended, supplemented or otherwise
modified from time to time, being the "Loan Agreement", the terms defined
therein and not otherwise defined herein being used herein as therein defined).
IN CONSIDERATION of the agreements, provisions and covenants
herein contained, the parties hereto hereby agree as follows:
SECTION 1. Assignment and Assumption.
(a) Effective upon the Settlement Date specified in Item 4 of
the Schedule of Terms (the "Settlement Date"), Assignor hereby sells and assigns
to Assignee, without recourse, representation or warranty (except as expressly
set forth herein), and Assignee hereby purchases and assumes from Assignor, that
percentage interest in all of Assignor's rights and obligations as a Lender
arising under the Loan Agreement and the other Loan Documents with respect to
Assignor's Commitments and outstanding Loans, if any, which represents, as of
the Settlement Date, the percentage interest specified in Item 3 of the Schedule
of Terms of all rights and obligations of Lenders arising under the Loan
Agreement and the other Loan Documents with respect to the Commitments and any
outstanding Loans (the "Assigned Share").
(b) In consideration of the assignment described above,
Assignee hereby agrees to pay to Assignor, on the Settlement Date, the principal
amount of any outstanding Loans included within the Assigned Share, such payment
to be made by wire transfer of immediately available funds in accordance with
the applicable payment instructions set forth in Item 5 of the Schedule of
Terms.
(c) Assignor hereby represents and warrants that Item 3 of the
Schedule of Terms correctly sets forth the amount of the Commitments, the
outstanding Loans and the Pro Rata Share corresponding to the Assigned Share.
E-1
(d) Assignor and Assignee hereby agree that, upon giving
effect to the assignment and assumption described above, (i) Assignee shall be a
party to the Loan Agreement and shall have all of the rights and obligations
under the Loan Documents, and shall be deemed to have made all of the covenants
and agreements contained in the Loan Documents, arising out of or otherwise
related to the Assigned Share, and (ii) Assignor shall be absolutely released
from any of such obligations, covenants and agreements assumed or made by
Assignee in respect of the Assigned Share. Assignee hereby acknowledges and
agrees that the agreement set forth in this Section 1(d) is expressly made for
the benefit of the Borrower, Agent, Administrative Agent, Assignor and the other
Lenders and their respective successors and permitted assigns.
(e) Assignor and Assignee hereby acknowledge and confirm their
understanding and intent that (i) this Agreement shall effect the assignment by
Assignor and the assumption by Assignee of Assignor's rights and obligations
with respect to the Assigned Share, (ii) any other assignments by Assignor of a
portion of its rights and obligations with respect to the Commitments and any
outstanding Loans shall have no effect on the Commitments, the outstanding Loans
and the Pro Rata Share corresponding to the Assigned Share as set forth in Item
3 of the Schedule of Terms or on the interest of Assignee in any outstanding
Loans corresponding thereto, and (iii) from and after the Settlement Date, Agent
shall make all payments under the Loan Agreement in respect of the Assigned
Share (including all payments of principal and accrued but unpaid interest,
commitment fees and letter of credit fees with respect thereto) (A) in the case
of any such interest and fees that shall have accrued prior to the Settlement
Date, to Assignor, and (B) in all other cases, to Assignee; provided that
Assignor and Assignee shall make payments directly to each other to the extent
necessary to effect any appropriate adjustments in any amounts distributed to
Assignor and/or Assignee by Agent under the Loan Documents in respect of the
Assigned Share in the event that, for any reason whatsoever, the payment of
consideration contemplated by Section 1(b) occurs on a date other than the
Settlement Date.
SECTION 2. Certain Representations, Warranties and
Agreements.
(a) Assignor represents and warrants that it is the legal and
beneficial owner of the Assigned Share, free and clear of any adverse claim.
(b) Assignor shall not be responsible to Assignee for the
execution, effectiveness, genuineness, validity, enforceability, collectibility
or sufficiency of any of the Loan Documents or for any representations,
warranties, recitals or statements made therein or made in any written or oral
statements or in any financial or other statements, instruments, reports or
certificates or any other documents furnished or made by Assignor
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to Assignee or by or on behalf of the Borrower or any of its Subsidiaries to
Assignor or Assignee in connection with the Loan Documents and the transactions
contemplated thereby or for the financial condition or business affairs of the
Borrower or any other Person liable for the payment of any obligations under the
Loan Agreement, nor shall Assignor be required to ascertain or inquire as to the
performance or observance of any of the terms, conditions, provisions, covenants
or agreements contained in any of the Loan Documents or as to the use of the
proceeds of the Loans or as to the existence or possible existence of any Event
of Default or potential Event of Default.
(c) Assignee represents and warrants that it has experience
and expertise in the making of loans such as the Loans; that it has acquired the
Assigned Share for its own account in the ordinary course of its business and
without a view to distribution of the Loans within the meaning of the Securities
Act or the Exchange Act or other federal securities laws (it being understood
that, subject to the provisions of subsection 10.4 of the Loan Agreement, the
disposition of the Assigned Share or any interests therein shall at all times
remain within its exclusive control); and that it has received, reviewed and
approved a copy of the Loan Agreement (including all Exhibits and Schedules
thereto).
(d) Assignee represents and warrants that it has received from
Assignor such financial information regarding the Borrower and its Subsidiaries
as is available to Assignor and as Assignee has requested, that it has made its
own independent investigation of the financial condition and affairs of the
Borrower and its Subsidiaries in connection with the assignment evidenced by
this Agreement, and that it has made and shall continue to make its own
appraisal of the creditworthiness of the Borrower and its Subsidiaries. Assignor
shall have no duty or responsibility, either initially or on a continuing basis,
to make any such investigation or any such appraisal on behalf of Assignee or to
provide Assignee with any other credit or other information with respect
thereto, whether coming into its possession before the making of the initial
Loans or at any time or times thereafter, and Assignor shall not have any
responsibility with respect to the accuracy of or the completeness of any
information provided to Assignee.
(e) Each party to this Agreement represents and warrants to
the other party hereto that it has full power and authority to enter into this
Agreement and to perform its obligations hereunder in accordance with the
provisions hereof, that this Agreement has been duly authorized, executed and
delivered by such party and that this Agreement constitutes a legal, valid and
binding obligation of such party, enforceable against such party in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general principles of equity.
E-3
SECTION 3. Miscellaneous.
(a) Each of Assignor and Assignee hereby agrees from time to
time, upon request of the other such party hereto, to take such additional
actions and to execute and deliver such additional documents and instruments as
such other party may reasonably request to effect the transactions contemplated
by, and to carry out the intent of, this Agreement.
(b) Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated, except by an instrument in writing signed by
the party (including, if applicable, any party required to evidence its consent
to or acceptance of this Agreement) against whom enforcement of such change,
waiver, discharge or termination is sought.
(c) Unless otherwise specifically provided herein, any notice
or other communication herein required or permitted to be given shall be in
writing and may be personally served, telexed or sent by telefacsimile or United
States mail or courier service and shall be deemed to have been given when
delivered in person or by courier service, upon receipt of telefacsimile or
telex, or three Business Days after depositing it in the United States mail with
postage prepaid and properly addressed. For the purposes hereof, the notice
address of each of Assignor and Assignee shall be as set forth on the Schedule
of Terms or, as to either such party, such other address as shall be designated
by such party in a written notice delivered to the other such party. In
addition, the notice address of Assignee set forth on the Schedule of Terms
shall serve as the initial notice address of Assignee for purposes of subsection
10.3 of the Loan Agreement.
(d) In case any provision in or obligation under this
Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
(e) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
E-4
(f) This Agreement shall be binding upon, and shall inure to
the benefit of, the parties hereto and their respective successors and assigns.
(g) This Agreement may be executed in one or more counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
(h) This Agreement shall become effective upon the date (the
"Effective Date") upon which all of the following conditions are satisfied: (i)
the execution of a counterpart hereof by each of Assignor and Assignee, (ii) the
receipt of a written acknowledgment from the Borrower, Agent and Administrative
Agent as evidence of their notice of the assignment and (iii) the receipt by
Administrative Agent of the processing fee referred to in Section 10.4(d) of the
Loan Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized, such execution being made as of the Effective Date in
the applicable spaces provided on the Schedule of Terms.
[Remainder of page intentionally left blank]
E-5
SCHEDULE OF TERMS
1. Borrower: Health and Retirement Properties Trust
2. Name and Date of Loan Agreement: Revolving Loan Agreement dated as
of April 2, 1998 by and among Health and Retirement Properties Trust,
the financial institutions listed therein as Lenders, Dresdner
Kleinwort ▇▇▇▇▇▇ North America LLC, as Agent, and Fleet National Bank,
as Administrative Agent.
3. Amounts:
Re: Loans
(a) Aggregate Commitments of all Lenders: $--------
(b) Assigned Share/Pro Rata Share: _____%
(c) Amount of Assigned Share of Commitments: $--------
(d) Amount of Assigned Share of Loans: $________
4. Settlement Date: ____________, 199_
5. Payment Instructions:
ASSIGNOR: ASSIGNEE:
---------------------------- ----------------------------
---------------------------- ----------------------------
---------------------------- ----------------------------
Attention: ----------------- Attention: -----------------
Reference: ----------------- Reference: -----------------
6. Notice Addresses:
ASSIGNOR: ASSIGNEE:
---------------------------- ----------------------------
---------------------------- ----------------------------
---------------------------- ----------------------------
---------------------------- ----------------------------
E-6
7. Signatures:
[NAME OF ASSIGNOR], [NAME OF ASSIGNEE],
as Assignor as Assignee
By: By:
Title: Title:
Receipt of notice acknowledged by:
Receipt of notice acknowledged by:
HEALTH AND RETIREMENT DRESDNER KLEINWORT ▇▇▇▇▇▇
PROPERTIES TRUST NORTH AMERICA LLC, as Agent
By: By:
Title: Title:
Receipt of notice acknowledged by:
FLEET NATIONAL BANK, as
Administrative Agent
By:
Title:
E-7
SCHEDULE 1
LENDERS' COMMITMENTS
LENDER COMMITMENT
Dresdner Kleinwort ▇▇▇▇▇▇ $ 35,000,000
Fleet National Bank $ 35,000,000
Bank of Montreal $ 30,000,000
CIBC Inc. $ 28,500,000
Credit Lyonnais $ 28,500,000
First Union National Bank $ 28,500,000
Key Corporate Capital, Inc. $ 28,500,000
Societe Generale $ 28,500,000
The Sumitomo Bank, Limited $ 25,000,000
Abbey National Treasury Services plc $ 24,000,000
▇▇▇▇▇ Bank, N.A. $ 25,000,000
Via Banque $ 24,000,000
The Bank of New York $ 21,000,000
Bank Hapoalim B.M. $ 20,000,000
Banque Nationale de Paris $ 20,000,000
DG Bank Deutsche Genossenschaftsbank, $ 20,000,000
Cayman Island Branch
The Bank of Nova Scotia, New York Agency $ 20,000,000
The Long-Term Credit Bank of Japan, Ltd. $ 18,500,000
Bank of Ireland $ 12,000,000
Comerica $ 10,000,000
RZB - Finance LLC $ 10,000,000
Arab American Bank $ 8,000,000
Total $ 500,000,000
CERTAIN LENDING OFFICES
Dresdner Bank AG
New York Branch and
Grand Cayman Branch
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇ ▇▇▇▇/2747
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Bank of Montreal
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
Attn: ▇▇▇▇▇▇▇ Turf
Fleet National Bank
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
CIBC Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇ ▇▇▇▇
Fax:(▇▇▇) ▇▇▇ ▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
First Union National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Societe Generale
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
Attn: Sedare ▇▇▇▇▇▇▇
Credit Lyonnais
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇ ▇▇▇▇/7259
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇ Choquart
Key Corporate Capital Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇
The Sumitomo Bank, Limited
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Abbey National Treasury
Services plc
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Tel: (▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: (▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
SCH. 1 - 3
▇▇▇▇▇ Bank N.A.
▇▇▇ - ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
The Long-Term Credit Bank
of Japan, Ltd.
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Via Banque
10 ▇▇▇ ▇▇▇▇▇▇ - ▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇
Tel: (▇▇ ▇) ▇▇ ▇▇ ▇▇ ▇▇
Fax: (▇▇ ▇) ▇▇ ▇▇ ▇▇ ▇▇
Attn: ▇▇▇▇▇▇▇▇ Prot
The Bank of New York
▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
The Bank of Nova Scotia, New York
Agency
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Bank Hapoalim B.M.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Banque Nationale de Paris
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇ Bank
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
SCH. 1 - 4
Bank of Ireland
LA Touche House
Tel: ▇▇▇ ▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇ ▇▇▇ ▇▇▇▇
Attn: ▇. ▇. ▇▇▇▇
I. B. F. C.
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇
Arab American Bank
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇ ▇▇▇▇
fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
RZB - Finance LLC
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Tel: ▇▇▇ ▇▇▇ ▇▇▇▇
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Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Comerica Bank
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Tel: ▇▇▇ ▇▇▇ ▇▇▇▇
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SCH. 1 - 5
SCHEDULE 2
PERMITTED EXCEPTIONS
1. Liens of landlords, mechanics, materialmen and other Liens imposed by law
incurred in the ordinary course of business for sums not yet delinquent or
being contested in good faith; provided that, in each case, any such Lien
is not reasonably likely to cause a MAC; and provided further that, in the
case of any Liens being so contested, (v) the amount secured thereby is not
material in relation to the Allowed Value of the affected Property or
Mortgage Interest, (w) such Property or any interest therein would not be
in any danger of being sold, forfeited or lost by reason of such contest;
(y) no insurance coverage required to be maintained pursuant to this
Agreement shall be cancelled or jeopardized as a result of the contest; and
(z) if required by Agent, Borrower shall have furnished to Agent a bond, or
other security satisfactory to Agent, to protect Lenders from any liability
to which it may be exposed as a result of such contest.
2. In the case of a Property, all Leases for such Property and the rights of
the Tenants under such Leases and any Credit Support Agreements relating to
such Leases.
3. In the case of a Mortgaged Property, the Mortgaged Interest Agreements for
such Mortgaged Property and any Credit Support Agreements relating thereto.
4. Liens for taxes, assessments, water rates, sewer or other governmental
charges or claims, the payment of which is not, at the time, due.
5. Easements, rights-of-way, rights of access, encroachments upon or by any
Property, in respect of which affirmative insurance, without payment of
additional premiums, has been provided by a reputable title insurance
company.
6. Easements, rights-of-way, restrictions, minor defects, encroachments or
irregularities in title and other similar charges or encumbrances that, in
respect of any Property, could not reasonably be likely to result in a MAC.
7. Liens resulting from equipment financings or similar security arrangements
entered into by a Tenant.
SCH. 2 - 1
SCHEDULE 3
AMOUNTS OWED UNDER THE EXISTING LOAN AGREEMENT
[Name of Lender]
1. Aggregate principal amount of Existing
Loans outstanding on the Effective Date $__________
2. Aggregate interest accrued (whether
or not due and payable) on the Effective Date $__________
3. Aggregate commitment fee accrued (whether
or not due and payable) on the Effective Date $__________
SCH. 3 - 1
SCHEDULE 4
BORROWER'S SUBSIDIARIES
% Owned
Name of Jurisdiction of Shares Shares Directly or
Subsidiary Incorporation Authorized Outstanding Indirectly
1. Church Creek Massachusetts 200,000 100 100%
Corporation common
stock
($0.01 par
value)
2. Health and Delaware 3,000 100 100%
Retirement common
Properties stock
International, ($0.01 par
Inc. value)
3. Causeway Holdings Inc. Massachusetts 200,000 100 100%
Common
Stock
($0.01 par
value)
4. SJO Corporation Massachusetts 200,000 100 100%
Common
Stock
($0.01 par
value)
5. Hub Properties Maryland 200,000,000 1 1,000 100%
Trust ($0.01 par value)
--------
1
100,000,000 common shares
100,000,000 preferred shares
SCH. 4 - 1
6. Hub Acquisition Maryland 10,000,000 2 1,000 100%
Trust ($0.01 par value)
7. Hub LA Properties Maryland 10,000,000 2 1,000 100%
Trust ($0.01 par value)
8. Hub RI Properties Maryland 10,000,000 2 1,000 100%
Trust ($0.01 par value)
9. Hub Woodmont Maryland 10,000,000
Investment Trust common shares 100 100%
($0.01 par value)
10. Hub Realty Funding, Delaware 1,000 1 100%
Inc. common shares
($0.01 par value)
11. Hub Management, Delaware 1,000 1,000 100%
Inc. common shares
($0.01 par value)
12. Hub Realty College Delaware 1,000 1 100%
Park, Inc. common shares
($0.01 par value)
13. Hub Realty Kansas Delaware 1,000 1 100%
City, Inc. common shares
($0.01 par value)
14. Hub Realty Golden, Delaware 1,000 1 100%
Inc. common shares
($0.01 par value)
--------
2 5,000,000 common shares
4,000,000 preferred shares
1,000,000 excess shares
SCH. 4 - 2
15. Hub Realty College Maryland N/A N/A 100%
Park I, LLC
16. Hub LA Limited Delaware N/A N/A 99%
Partnership
17. Hub Realty Buffalo, Delaware 1,000 1 100%
Inc.3 common shares
($0.01 par value)
18. EPA Golden, L.P. Delaware N/A N/A 99%
19. Hub Realty Richland, Delaware 3,000 1 100%
Inc.3 common shares
($0.01 par value)
20. Hub Woodmont LLC Delaware N/A N/A 99%
21. Indemnity Collection Delaware 3,000 100 100%
Corporation common shares
($0.01 par value)
--------
3
Obligor, as of Closing Date, of Government Property
Assumed Indebtedness.
SCH. 4 - 3
SCHEDULE 5
CALCULATION OF THE MANDATORY LIQUID
ASSET COSTS FOR ANY GBP LOANS
(a) The Mandatory Liquid Asset Costs for a Loan if denominated in GBP for each
Interest Period for that Loan is calculated in accordance with the
following formula:
BY + L(Y-X) + S(Y-Z)% PER ANNUM
100 - (B+S)
where on the day of the application of the formula:
B is the percentage of Agent's eligible liabilities which the Bank of
England then requires Agent to hold on a non-interest-bearing deposit
account in accordance with its cash ratio requirements;
Y is the rate at which GBP deposits are offered by Agent to leading
banks in the London interbank market at or about 11.00 A.M. on that
day for the relevant period;
L is the percentage of eligible liabilities which (as a result of the
requirements of the Bank of England) Agent maintains as secured money
with members of the London Discount Market Association or in certain
marketable or callable securities approved by the Bank of England,
which percentage shall (in the absence of evidence that any other
figure is appropriate) be conclusively presumed to be 5 per cent.;
X is the rate at which secured GBP deposits may be placed by Agent with
members of the London Discount Market Association at or about 11.00
A.M. on that day for the relevant period or, if greater, the rate at
which GBP bills of exchange (of a tenor equal to the duration of the
relevant period) eligible for rediscounting at the Bank of England can
be discounted in the London Discount Market at or about 11.00 A.M. on
that day;
S is the percentage for Agent's eligible liabilities which the Bank of
England requires Agent to place as a special deposit; and
Z is the interest rate per annum allowed by the Bank of England on
special deposits.
SCH. 5-1
(b) For the purposes of this Schedule:
(i) "eligible liabilities" and "special deposits" have the meanings
given to them at the time of application of the formula by the Bank of
England; and
(ii) "relevant period" in relation to each Interest Period means:
(A) if it is 3 months or less, that Interest Period, or
(B) if it is more than 3 months, 3 months.
(c) In the application of the formula, B, Y, L, X, S and Z are included in
the formula as figures and not as percentages, e.g. if B=0.5% and Y =
15%, BY is calculated as 0.5 x 15.
(d) The formula is applied on the first day of each relevant period. Each
amount is rounded up to the nearest one-sixteenth of one per cent.
(e) If Agent determines that a change in circumstances has rendered, or
will render, the formula inappropriate, Agent (after consultation with
the Lenders) shall notify Borrower of the manner in which the
Mandatory Liquid Asset Costs for such Loans will subsequently be
calculated. The manner of calculation so notified by Agent shall, in
the absence of manifest error, be binding on Borrower.
SCH. 5 - 2
SCHEDULE 6
HEALTH AND RETIREMENT PROPERTIES TRUST
PROPERTIES CURRENTLY IN DEFAULT
None.
SCH. 6 - 1