HEALTH AND RETIREMENT PROPERTIES TRUST
FIRST AMENDMENT TO
THIRD AMENDED AND RESTATED REVOLVING LOAN AGREEMENT
DATED AS OF DECEMBER 15, 1996
This FIRST AMENDMENT (this "Amendment") is dated as of December 15,
1996 among HEALTH AND RETIREMENT PROPERTIES TRUST, a real estate investment
trust formed under the laws of the State of Maryland ("Borrower"), the several
lenders listed on the signature pages hereof (the "Lenders"), KLEINWORT ▇▇▇▇▇▇
LIMITED, a bank organized under the laws of England, as agent for itself and the
other Lenders (in such capacity, together with any successor in such capacity in
accordance with the terms of the Loan Agreement, as defined below, "Agent"),
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, a bank organized under the laws of the
United States of America, as administrative agent (in such capacity, together
with any successor in such capacity in accordance with the terms of the Loan
Agreement, "Administrative Agent"), and FLEET BANK N.A. (formerly NatWest Bank
N.A.), a national banking association, as co-agent (in such capacity, "Co-
Agent"), and is made with reference to the Third Amended and Restated Revolving
Loan Agreement dated as of March 15, 1996 (as amended from time to time, the
"Loan Agreement") among Borrower, the Lenders, Agent, Administrative Agent and
Co-Agent and, in connection with Section 9 and the guaranties given therein,
HEALTH AND RETIREMENT PROPERTIES INTERNATIONAL, INC., a Delaware corporation
("Retirement Properties"), CAUSEWAY HOLDINGS INC., a Massachusetts corporation
("Causeway"), SJO CORPORATION, a Massachusetts corporation ("SJO") and HUB
PROPERTIES TRUST, a Maryland real estate investment trust ("HUB"), each being a
direct wholly-owned Subsidiary of Borrower. Capital terms used herein without
definition shall have the same meanings herein as set forth in the Loan
Agreement.
WHEREAS, Borrower has advised Lenders that it wishes to amend certain
terms of the Loan Agreement;
WHEREAS, subject to the terms set forth herein, Lenders have agreed to
amend the Loan Agreement.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows :
1. Amendments to Loan Agreement.
(a) Section 1.1 of the Loan Agreement is hereby amended by inserting
therein in proper alphabetical order the following new definition:
"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, including $240,000,000 aggregate principal amount of
convertible subordinated debentures issued on October 7,1 996
the terms and conditions of which are hereby approved by
Agent."
(b) Section 1.1 of the Loan Agreement is hereby amended by the
amendment and restatement of the definition of "Reference Banks" as follows:
"Reference Banks" means Dresdner Bank AG, New York Branch
and Cayman Island Branch and ▇▇▇▇▇ Fargo Bank, National
Association"
(c) Section 6.8(a) of the Loan Agreement is hereby amended and restated
as follows:
"(a) Suffer or permit the total Indebtedness
(determined without duplication) of Borrower and its
Subsidiaries (other than the (i) IDFA Indebtedness, (ii)
Indebtedness in the nature of the bridge financings described
in the exception to Section 6.8(b), (iii) Indebtedness
described in Section 6.8(c) and (iv) Convertible Subordinated
Debt) at any time to be greater than 50% of the aggregate
Allowed Value of all Eligible Properties and all Eligible
Mortgages."
(d) Section 7.1(r) of the Loan Agreement is hereby amended by the
deletion of the figure "15" and the substitution therefor of the figure "30" .
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2. Conditions to Effectiveness.
Section 1 of this Amendment shall become effective only upon the prior
or concurrent satisfaction of the conditions that Borrower shall deliver to
Agent for Lenders (with sufficient originally executed copies for each Lender)
executed copies of this Amendment, executed by Borrower, Retirement Properties,
Causeway, SJO, Agent, Co-Agent and the Majority Leaders.
3. Representations and Warranties.
In order to induce Lenders and Agent to enter into this Amendment and
to amend the Loan Agreement in the manner provided herein, Borrower represents
and warrants to each Lender and Agent that the following statements are true,
correct and complete:
(a) Borrower has the power and authority to enter into this Amendment
and to carry out the transactions contemplated by, and perform its obligations
under, the Loan Agreement (as amended by this Amendment the "Amended
Agreement").
(b) The execution and delivery of this Amendment and the performance of
the Amended Agreement have been authorized by all necessary action on the part
of Borrower.
(c) The execution and delivery by Borrower of this Amendment and the
performance by Borrower of the Amended Agreement and the use of proceeds
thereunder do not violate any Requirement of Law or Contractual Obligation of
Borrower and will not result in, or require, the creation or imposition of any
Lien on any of its properties or revenues pursuant to any Requirement of Law or
Contractual Obligation of Borrower.
(d) This Amendment and the Amended Agreement have been duly executed
and delivered by Borrower and are the legally valid and binding obligations of
Borrower, enforceable against Borrower in accordance with their respective
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally.
(e) The representations and warranties contained in Section 3 of the
Loan Agreement are and will be true, correct and complete in all material
respects on and as of the effective date described in Section 2 to the same
extent as though made on and as of that date, except to the extent such
representations and warranties specifically
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relate to an earlier date, in which case they were true, correct and complete in
all material respects on and as of such earlier date.
(f) No event has occurred and is continuing or will result from the
consummation o the transactions described in or otherwise contemplated by this
Amendment that would constitute a Default or an Event of Default.
(g) The Declaration of Trust, By-Laws and other organizational
documents of Borrower have not been amended since March 15, 1996, and the copies
thereof delivered to Lenders under the Loan Agreement are true, correct and
complete copies thereof as in effect on the effective date described in Section
2.
4. Addition of HUB as Guarantor.
By execution and delivery of this Amendment, HUB hereby agrees to be
bound by the terms of Section 9 of the Loan Agreement as of the date of this
Amendment as if it were a party to the Loan Agreement.
5. Guarantors' Acknowledgment and Consent.
Each of Retirement Properties, Causeway, SJO and HUB (each a
"Subsidiary Guarantor") has guarantied the obligations of Borrower under Section
9 of the Loan Agreement.
Each Subsidiary Guarantor hereby acknowledges that it has reviewed the
terms and provisions of the Loan Agreement and this Amendment and consents to
the amendment of the provisions of the Agreement effected pursuant to this
Amendment. Each Subsidiary Guarantor hereby confirms that its guaranty under the
Loan Agreement will continue to guaranty to the fullest extent possible the
payments and performance of all obligations of Borrower now or hereafter
existing under or in respect of the Amended Agreement and the Notes defined
therein. Each Subsidiary Guarantor acknowledges and agrees that Section 9 of the
Loan Agreement shall continue in full force and effect and that all of its
obligations thereunder shall be valid and enforceable and shall not be impaired
or limited by the execution or effectiveness of this Amendment.
Each Subsidiary Guarantor acknowledges and agrees that (a)
notwithstanding the conditions to effectiveness set forth in this Amendment,
such Subsidiary Guarantor is not required by the terms of the Loan Agreement to
consent to the amendments to the Loan Agreement effected pursuant to this
Amendment and (b) nothing in the Loan Agreement or this Amendment shall be
deemed to require the consent of such Subsidiary Guarantor to any future
amendments or waivers to the Loan Agreement.
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6. Reference to and Effect on the Loan Agreement and Other Loan
Documents. Except as specifically amended hereby, the Loan Agreement and the
other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed.
7. Fees and Expenses. Borrower agrees to pay to Agent on deemed all
reasonable costs, fees and expenses incurred by Agent (including, without
limitation, legal fees and expenses) with respect to this Amendment and the
documents and transactions contemplated hereby.
8. Execution in Counterparts. This Amendment may be executed in any
number of 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 taken together shall constitute but one and
the same instrument.
9. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose or be given any substantive effect.
10. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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11. Limitation of Amendment. Without limiting the generality of the
provisions of Section 10.4 of the Loan Agreement, the amendments set forth above
shall be limited precisely as written, and nothing in this Amendment shall be
deemed to prejudice any right or remedy that any Lender may now have (except to
the extent such right or remedy was based upon existing defaults that will not
exist after giving effect to this Amendment) or may have in the future under or
in connection with the Loan Agreement or any other instrument or agreement
referred to therein.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
HEALTH AND RETIREMENT
PROPERTIES TRUST
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
KLEINWORT ▇▇▇▇▇▇ LIMITED, as
Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, as Administrative Agent
and as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
FLEET BANK N.A. (formerly Nat West
Bank N.A.), as Co-Agent and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
S-1
FLEET NATIONAL BANK (successor to
Fleet Bank of Massachusetts), as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
THE SUMITOMO BANK, LIMITED
Chicago Branch, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President & Manager Title: Vice President
MITSUI LEASING (USA) INC., as a
Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
BANK HAPOALIM B.M., as a Lender
By: /s/ ▇▇▇▇▇ Breidhart
Name: ▇▇▇▇▇ Breidhart
Title: Ass't. Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Exec. Vice President
DRESDNER BANK AG, New York
Branch and Grand Cayman Branch, as a
Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
By: /s/ B. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: B. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
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CREDIT LYONNAIS, Cayman Island
Branch, as a Lender
By: /s/ Farboud Tavangar
Name: Farboud Tavangar
Title: Authorized Signature
BANK OF MONTREAL, as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ BANK N.A., as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
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VIA BANQUE, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ Prot
Name: ▇▇▇▇▇▇▇▇ Prot
Title: Sous Directeur
By: /s/ ▇. ▇▇▇▇▇▇▇
Name: ▇. ▇▇▇▇▇▇▇
Title: Directeur
DG BANK, Deutsche
GenossenschaftsBank, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Ass't Vice President
KEYBANK NATIONAL ASSOCIATION
(formerly Society National Bank), as a
Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
For the purposes of Section 9: HEALTH
AND RETIREMENT PROPERTIES
INTERNATIONAL, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
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CAUSEWAY HOLDINGS INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
SJO CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
HUB PROPERTIES TRUST
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
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