EXHIBIT 10.1
FIRST AMENDMENT
TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment"),
is made as of December 19, 2002, by and among HRPT Properties Trust, a real
estate investment trust organized under the laws of the State of Maryland (the
"Borrower"), each of the financial institutions signatory hereto as the initial
Tranche B Lenders (as hereinafter defined), and WACHOVIA BANK, NATIONAL
ASSOCIATION (F/K/A First Union National Bank), as Agent (the "Agent").
WITNESSETH:
WHEREAS, the parties hereto are parties to the Credit
Agreement, dated as of April 30, 2001, by and among the Borrower, the Agent, the
other agents named therein and the Lenders thereunder (the "Credit Agreement";
terms defined in the Credit Agreement and not defined herein, unless indicated
otherwise, are used herein with the same meanings as in the Credit Agreement, as
amended hereby); and
WHEREAS, the Agent and the Borrower have agreed to certain
amendments to the Credit Agreement, and the Tranche B Lenders party hereto,
constituting the Requisite Lenders, have consented thereto;
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
I. AMENDMENTS, ETC.
A. NEW DEFINITIONS. Article I of the Credit Agreement is hereby amended
to add the following new definitions to be inserted in Section 1.1. in
appropriate alphabetical order:
"FIRST AMENDMENT" means the First Amendment, dated as of
December 19, 2002, amending this Agreement.
"TRANCHE B AGENT" means Wachovia Bank, National Association,
as contractual representative for the Tranche B Lenders under the terms
of this Agreement, and any of its successors.
"TRANCHE B BID RATE LOAN" means a loan made by a Tranche B
Lender pursuant to Section 2.17.(b).
"TRANCHE B BID RATE NOTE" has the meaning set forth in Section
2.17.(e).
"TRANCHE B COMMITMENT" means, as to each Tranche B Lender,
such Tranche B Lender's obligation to make Tranche B Revolving Loans
pursuant to Section 2.17.(a) and to issue (in the case of the Tranche B
Agent) or participate in (in the case of the Tranche B Lenders) Letters
of Credit issued on and after the Termination Date pursuant
to Section 2.17.(d) in an amount up to, but not exceeding (but in the
case of the Tranche B Lender acting as the Tranche B Agent excluding
the aggregate amount of participations in the Letters of Credit held
by other Tranche B Lenders), the amount set forth for such Tranche B
Lender on its signature page to the First Amendment as such Lender's
"Tranche B Commitment Amount" or as set forth in the applicable
Assignment and Acceptance Agreement, as the same may be reduced from
time to time pursuant to Section 2.12. or as appropriate to reflect
any assignments to or by such Lender effected in accordance with
Section 12.5.
"TRANCHE B COMMITMENT PERCENTAGE" means, as to each Tranche B
Lender, the ratio, expressed as a percentage, of (a) the amount of such
Tranche B Lender's Tranche B Commitment to (b) the aggregate amount of
the Tranche B Commitments of all Tranche B Lenders hereunder; PROVIDED,
HOWEVER, that if at the time of determination the Tranche B Commitments
have terminated or been reduced to zero, the "Tranche B Commitment
Percentage" of each Tranche B Lender shall be the Tranche B Commitment
Percentage of such Tranche B Lender in effect immediately prior to such
termination or reduction.
"TRANCHE B LENDER" means each financial institution from time
to time party hereto as a "Tranche B Lender" as indicated by the
designation below its signature to the First Amendment, together with
its successors and permitted assignees; PROVIDED, HOWEVER, that the
term "Tranche B Lender" shall exclude each Designated Lender when used
in reference to any Tranche B Loan other than a Tranche B Bid Rate
Loan, the Tranche B Commitments or terms relating to any Tranche B Loan
other than a Tranche B Bid Rate Loan and the Tranche B Commitments and
shall further exclude each Designated Lender for all other purposes
under the Loan Documents, except that any Designated Lender which funds
a Tranche B Bid Rate Loan shall, subject to Section 12.5.(e), have the
rights (including the rights given to a Lender contained in Sections
12.2. and 12.9.) and obligations of a Tranche B Lender associated with
holding such Tranche B Bid Rate Loan.
"TRANCHE B LOAN" means a Tranche B Revolving Loan, a Tranche B
Bid Rate Loan or a Tranche B Swingline Loan.
"TRANCHE B REQUISITE LENDERS" means, as of any date, Tranche
B Lenders having at least 66 2/3% of the aggregate amount of the
Tranche B Commitments (not held by Defaulting Lenders who are not
entitled to vote), or, if the Tranche B Commitments have been
terminated or reduced to zero, Tranche B Lenders holding at least 66
2/3% of the principal amount of the Tranche B Loans and Letter of
Credit Liabilities relating to Letters of Credit issued after the
Termination Date (not held by Defaulting Lenders who are not entitled
to vote).
"TRANCHE B REVOLVING LOAN" means a loan made by a Tranche B
Lender to the Borrower pursuant to Section 2.17.(a).
"TRANCHE B REVOLVING NOTE" has the meaning set forth in
Section 2.17.(e).
-2-
"TRANCHE B SWINGLINE COMMITMENT" means the Swingline Lender's
obligation to make Tranche B Swingline Loans pursuant to Section
2.17.(c) in an amount up to, but not exceeding, $25,000,000, as such
amount may be reduced from time to time in accordance with the terms
hereof.
"TRANCHE B SWINGLINE LOAN" means a loan made by a Swingline
Lender pursuant to Section 2.17.(c).
"TRANCHE B SWINGLINE NOTE" has the meaning set forth in
Section 2.17.(c).
"TRANCHE B TERMINATION DATE" means April 28, 2006, or such
earlier date to which the Tranche B Termination Date may be shortened
pursuant to Section 2.17.(f)."
B. AMENDMENTS TO DEFINITIONS. The definition of the term "Note"
contained in Article I of the Credit Agreement is hereby amended and restated to
read in its entirety as follows:
""NOTE" means a Revolving Note, a Bid Rate Note, a Swingline
Note, a Tranche B Revolving Note, a Tranche B Bid Rate Note or a
Tranche B Swingline Note."
C. NEW SECTION 2.17 OF THE CREDIT AGREEMENT. Article II of the Credit
Agreement is hereby amended to add the following as Section 2.17., which shall
be inserted immediately after Section 2.16.:
SECTION 2.17. TRANCHE B COMMITMENT AND LOANS.
(a) REVOLVING TRANCHE B LOANS.
(i) Subject to the terms and conditions hereof,
during the period from the Termination Date to but excluding
the Tranche B Termination Date, each Tranche B Lender
severally and not jointly agrees to make Tranche B Revolving
Loans to the Borrower in an aggregate principal amount at any
one time outstanding up to, but not exceeding, the amount of
such Tranche B Lender's Tranche B Commitment. Subject to the
terms and conditions of this Agreement, during the period from
the Termination Date to the Tranche B Termination Date, the
Borrower may borrow, repay and reborrow the Tranche B
Revolving Loans hereunder.
(ii) The requests for and disbursements of Tranche B
Revolving Loans shall be made in accordance with provisions of
Sections 2.1.(b) and 2.1.(c); PROVIDED that for such purpose
the references therein to "Revolving Loans", "Agent" and
"Lender(s)" shall be deemed to be references to "Tranche B
Revolving Loans", "Tranche B Agent" and "Tranche B Lender(s)",
respectively. Notwithstanding the immediately preceding
sentence, upon the Termination Date (i) all outstanding
Revolving Loans to Lenders who are not Tranche B Lenders shall
be repaid in accordance with Section 2.7. (whether through a
borrowing of Tranche B Loans from the Tranche B Lenders or
otherwise), and (ii) all Revolving Loans then outstanding to
any Tranche B Lender shall be deemed to be
-0-
Xxxxxxx X Revolving Loans of the same Type and, in the case
of all LIBOR Loans then outstanding, of the same Interest
Period then in effect. As of the Termination Date, such
Tranche B Revolving Loans shall be allocated among the
Tranche B Lenders in accordance with their respective
Tranche B Commitment Percentages. Each Tranche B Lender
agrees to make such payments to the other Tranche B Lenders
(or, if necessary to effectuate the purposes hereof, to
Lenders who are not Tranche B Lenders) upon the Termination
Date in such amounts as are necessary to effect such
allocation. All such payments shall be made to the Agent or
the Tranche B Agent, as the case may be, for the account of
the Person to be paid.
(b) TRANCHE B BID RATE LOANS.
(i) So long as the Borrower maintains an Investment
Grade Rating, in addition to borrowings of Tranche B Revolving
Loans, at any time during the period from the Termination Date
to, but excluding, the Tranche B Termination Date the Borrower
may, as set forth in this Section 2.17.(b), request the
Tranche B Lenders to make offers to make Tranche B Bid Rate
Loans to the Borrower in Dollars. The Tranche B Lenders may,
but shall have no obligation to, make such offers and the
Borrower may, but shall have no obligation to, accept any such
offers in the manner set forth in this Section 2.17.(b).
Except for the purpose and to the extent expressly stated in
Section 2.12., the amount of any Tranche B Bid Rate Loan made
by any Tranche B Lender shall not constitute a utilization of
such Tranche B Lender's Tranche B Commitment.
(ii) The requests for, quotes for, notices relating
to, acceptances of, and obligation to make Tranche B Bid Rate
Loans, shall be in accordance with the provisions of Sections
2.2.(b) through 2.2.(f); PROVIDED that for such purpose the
references therein to "Bid Rate Loans", "Lender(s)", "Agent",
"Commitment" for such purpose shall be deemed to be references
to "Tranche B Bid Rate Loans", "Tranche B Lender(s)", "Tranche
B Agent" and "Tranche B Commitment", respectively.
(c) TRANCHE B SWINGLINE LOANS.
(i) Subject to the terms and conditions hereof,
during the period from the Termination Date to but excluding
the Tranche B Termination Date, the Swingline Lender agrees to
make Tranche B Swingline Loans to the Borrower in an aggregate
principal amount at any one time outstanding up to, but not
exceeding, the amount of the Tranche B Swingline Commitment.
If at any time the aggregate principal amount of the Tranche B
Swingline Loans outstanding at such time exceeds the Tranche B
Swingline Commitment in effect at such time, the Borrower
shall immediately pay the Tranche B Agent for the account of
the Swingline Lender the amount of such excess. Subject to the
terms and conditions of this Agreement, the Borrower may
borrow, repay and reborrow Tranche B Swingline Loans
hereunder. The Tranche B Swingline Loans shall, in addition to
-4-
this Agreement, be evidenced by the Tranche B Swingline Note
substantially in the form of Exhibit Q (the "Tranche B
Swingline Note").
(ii) The procedure for borrowing, the interest rates
applicable to, amounts of, and repayment and participations of
Tranche B Swingline Loans shall be in accordance with the
provisions of Sections 2.3.(b) through 2.3.(e); PROVIDED that
for such purpose the references therein to "Agent", "Lender",
"Commitment", "Swingline Loan" and "Termination Date" shall be
deemed to be references to "Tranche B Agent", "Tranche B
Lender", "Tranche B Commitment", "Tranche B Swingline Loan"
and "Tranche B Termination Date", respectively.
(d) LETTERS OF CREDIT. Subject to the terms and conditions of
this Agreement, the Tranche B Agent, on behalf of the Tranche B Lenders
agrees to issue for the account of the Borrower during the period from
and including the Termination Date to, but excluding, the date 30 days
prior to the Tranche B Termination Date one or more Letters of Credit
upon the terms and conditions set forth in Section 2.4.; PROVIDED that
for such purpose the references in Section 2.4. to "Agent",
"Termination Date", "Commitment Percentage", "Revolving Loans",
"Commitment", "Requisite Lenders" and "Lender(s)" shall be deemed to be
references to "Tranche B Agent", "Tranche B Termination Date", "Tranche
B Commitment Percentage", "Tranche B Revolving Loans", "Tranche B
Commitment", "Tranche B Requisite Lenders" and "Tranche B Lender(s)",
respectively.
(e) INTEREST ON TRANCHE B LOANS; PREPAYMENTS; TRANCHE B
REVOLVING NOTES; REDUCTION OF TRANCHE B COMMITMENTS; ETC.
(i) The provisions of Sections 2.5. through 2.10.,
2.11.(c), 2.11.(d), 2.12., and 2.14. shall also apply to
Tranche B Loans; PROVIDED that for such purpose the
references therein to terms relating to Loans shall be
deemed to refer to terms relating to Tranche B Loans,
including without limitation, the terms "Agent", "Bid Rate
Loan", "Lender", "Loan", "Termination Date", "Commitments"
for such purpose shall be deemed to refer to "Tranche B
Agent", "Tranche B Bid Rate Loan", "Tranche B Lender",
"Tranche B Loan", "Tranche B Termination Date", and "Tranche
B Commitments", respectively.
(ii) The Tranche B Revolving Loans made by each
Tranche B Lender shall, in addition to this Agreement, also be
evidenced by a promissory note of the Borrower substantially
in the form of Exhibit R (each a "Tranche B Revolving Note"),
payable to the order of such Tranche B Lender in a principal
amount equal to the amount of its Tranche B Commitment as
originally in effect and otherwise duly completed. The Tranche
B Bid Rate Loans made by any Tranche B Lender shall, in
addition to this Agreement, also be evidenced by a promissory
note of the Borrower substantially in the form of Exhibit S
(each a "Tranche B Bid Rate Note"), payable to the order of
such Lender and otherwise duly completed.
-5-
(f) EARLIER TRANCHE B TERMINATION DATE. The Borrower may
request that the Tranche B Agent and the Tranche B Lenders shorten the
current Tranche B Termination Date by one (1) year by executing and
delivering to the Tranche B Agent no later than January 30, 2005, a
written request substantially in the form of Exhibit M (with
appropriate changes relating to the Tranche B Loans). Once given, such
cancellation request shall be irrevocable by, and binding on, the
Borrower. The Tranche B Agent shall forward to each Tranche B Lender a
copy of such cancellation request delivered to the Tranche B Agent
promptly after receipt thereof. If the Borrower fails to deliver a
cancellation request to the Tranche B Agent by such date, then the
Tranche B Termination Date shall remain unchanged. If the Tranche B
Termination Date is not so shortened, the Borrower agrees to pay to the
Tranche B Agent, on or before January 30, 2005, for the account of each
Tranche B Lender a fee equal to one-quarter of one percent (0.25%) of
the amount of such Tranche B Lender's Tranche B Commitment (whether or
not utilized).
(g) AMOUNT LIMITATIONS. Notwithstanding any other term of this
Agreement or any other Loan Document, at no time after the Termination
Date may:
(i) The aggregate principal amount of all outstanding
Tranche B Revolving Loans, together with the aggregate
principal amount of all outstanding Tranche B Bid Rate Loans
and the aggregate principal amount of all outstanding Tranche
B Swingline Loans and the aggregate amount of all Letter of
Credit Liabilities, exceed the aggregate amount of the Tranche
B Commitments at such time; or
(ii) The aggregate principal amount of all
outstanding Tranche B Bid Rate Loans exceed the lesser of (i)
$200,000,000 or (ii) 50% of the aggregate amount of the
Tranche B Commitments at such time.
(h) INCREASE OF TRANCHE B COMMITMENTS. The Borrower shall have
the right to request increases in the aggregate amount of the Tranche B
Commitments (PROVIDED that after giving effect to the aggregate amount
of increases in the Tranche B Commitments pursuant to this Section, the
aggregate amount of Tranche B Commitments shall not exceed
$625,000,000) by providing written notice to the Tranche B Agent, which
notice shall be irrevocable once given. Each such increase in the
Tranche B Commitments must be an aggregate minimum amount of
$20,000,000 and integral multiples of $1,000,000 in excess thereof. The
Tranche B Agent shall promptly notify each Tranche B Lender of any such
request. Each existing Tranche B Lender shall have the right to
increase its Tranche B Commitment by an amount so that such Tranche B
Lender's Tranche B Commitment Percentage shall not be decreased as a
result of such requested increase in the Tranche B Commitments. Each
Tranche B Lender shall notify the Tranche B Agent within 10 Business
Days after receipt of the Tranche B Agent's notice whether such Lender
wishes to increase the amount of its Tranche B Commitment. If a Tranche
B Lender fails to deliver any such notice to the Tranche B Agent within
such time period, then such Tranche B Lender shall be deemed to have
declined to increase its Tranche B Commitment. No Tranche B Lender
shall be required to increase its Tranche B Commitment and any new
Tranche B Lender(s) becoming a party to this
-6-
Agreement in connection with any such requested increase must be an
Eligible Assignee. In the event a new Tranche B Lender or Tranche B
Lenders become a party to this Agreement, or if any existing Tranche B
Lender agrees to increase its Tranche B Commitment, such Tranche B
Lender shall on the date it becomes a Tranche B Lender hereunder (or
increases its Tranche B Commitment, in the case of an existing Tranche
B Lender) (and as a condition thereto) purchase from the other Tranche
B Lenders its Tranche B Commitment Percentage (as determined after
giving effect to the increase of Tranche B Commitments) of any
outstanding Tranche B Revolving Loans, by making available to the
Tranche B Agent for the account of such other Tranche B Lenders at the
Principal Office, in same day funds, an amount equal to the sum of (A)
the portion of the outstanding principal amount of such Tranche B
Revolving Loans to be purchased by such Tranche B Lender plus (B) the
aggregate amount of payments previously made by the other Tranche B
Lenders under Section 2.4.(j) (as incorporated by Section 2.17.(d))
which have not been repaid plus (C) interest accrued and unpaid to and
as of such date on such portion of the outstanding principal amount of
such Tranche B Revolving Loans. The Borrower shall pay to the Tranche
B Lenders amounts payable, if any, to such Tranche B Lenders under
Section 4.4. as a result of the prepayment of any such Tranche B
Revolving Loans. No increase of the Tranche B Commitments may be
effected under this subsection if either (x) a Default or Event of
Default shall be in existence on the effective date of such increase
or (y) any representation or warranty made or deemed made by the
Borrower or any other Loan Party in any Loan Document to which any
such Loan Party is a party is not (or would not be) true or correct on
the effective date of such increase (except for representations or
warranties which expressly relate solely to an earlier date). In
connection with any increase in the aggregate amount of the Tranche B
Commitments pursuant to this subsection, (a) any Tranche B Lender
becoming a party hereto shall execute such documents and agreements as
the Tranche B Agent may reasonably request and (b) the Borrower shall
make appropriate arrangements so that each new Tranche B Lender, and
any existing Tranche B Lender increasing its Tranche B Commitment,
receives a new or replacement Tranche B Note, as appropriate, in the
amount of such Tranche B Lender's Tranche B Commitment within 2
Business Days of the effectiveness of the applicable increase in the
aggregate amount of Tranche B Commitments.
(i) APPLICATION OF AGREEMENT TO TRANCHE B LOANS. The
provisions of Articles I., III. (except for Section 3.6.(c)) and IV.,
Sections 5.2. and 5.3., Articles VI., VII., VIII., IX., X., XI. and
XII. and defined terms used therein and in the Exhibits referenced
therein shall be interpreted, where necessary, to give effect to the
Tranche B Loans and Letters of Credit contemplated under this Section
2.17. In the event that defined terms used in this Article II., to the
extent applicable to Tranche B Loans, are inconsistent with the
provisions of this Section 2.17., such terms shall be interpreted,
where necessary, to give effect to such provisions.
-7-
D. AMENDMENT TO SECTION 3.6. Section 3.6. of the Credit Agreement is
hereby amended to add the following subsection (e), which shall be inserted
immediately after subsection (d) thereof:
(e) TRANCHE B MATURITY FEE. If the Tranche B Termination Date
is not shortened in accordance with Section 2.17.(f), the Borrower
agrees to pay to the Tranche B Agent for the account of each Tranche B
Lender a fee equal to one-quarter of one percent (0.25%) of the amount
of such Tranche B Lender's Tranche B Commitment (whether or not
utilized). Such fee shall be due and payable in full on January 30,
2005.
E. ADDITIONAL EXHIBITS. The Credit Agreement is hereby amended to add
Exhibits Q, R and S thereto, as set forth as Exhibits Q, R and S, respectively,
to this Amendment.
F. WAIVER OF MATURITY FEE. Each Tranche B Lender hereby irrevocably
waives its right to receive payment of its share of the maturity fee otherwise
payable by the Borrower pursuant to Section 3.6.(c) of the Credit Agreement.
G. RESTRICTION ON ASSIGNMENT. Notwithstanding anything to the contrary
contained in the Credit Agreement (including, but not limited to, Section 12.5.
thereof), or any of the other Loan Documents, any Lender which is also a Tranche
B Lender which effectuates an assignment under Section 12.5.(d) of the Credit
Agreement to an Assignee shall assign an equal percentage of both its Commitment
and its Tranche B Commitment to the applicable Assignee in connection with any
such assignment.
II. REPRESENTATIONS.
The Borrower represents and warrants to the Agent and the
Lenders as follows:
(a) After giving effect to the amendments to the Credit
Agreement set forth in this Amendment, no Default or Event of Default
has occurred and is continuing; and
(b) The representations and warranties made or deemed made by
the Borrower and each other Loan Party in the Loan Documents to which
any of them is a party, are true and correct on and as of the date of
this Amendment with the same force and effect as if made on and as of
such date except to the extent that such representations and warranties
expressly relate solely to an earlier date (in which case such
representations and warranties shall have been true and accurate on and
as of such earlier date) and except for changes in factual
circumstances specifically and expressly permitted under the Credit
Agreement.
III. EFFECTIVENESS.
This Amendment shall become effective upon the occurrence of
each of the following events:
(a) This Amendment shall be duly executed and delivered by the
Borrower and the Lenders constituting the Requisite Lenders;
-8-
(b) The Borrower shall have executed and delivered to (i) each
Tranche B Lender a Tranche B Revolving Note and a Tranche B Bid Rate
Note and (ii) the Swingline Lender, a Tranche B Swingline Note;
(c) Each of the Guarantors shall have executed and delivered a
Reaffirmation of Guaranty in form and substance satisfactory to the
Agent;
(d) The Agent shall have received an opinion of Xxxxxxxx &
Worcester LLP, counsel to the Loan Parties, addressed to the Agent, the
Tranche B Agent, the Lenders, the Tranche B Lenders and the Swingline
Lender in form and substance satisfactory to Agent and the Tranche B
Agent; and
(e) The Borrower shall have paid to the Tranche B Agent for
the account of each Tranche B Lender an upfront fee equal to
one-quarter of one percent (0.25%) of the amount of such Tranche B
Lender's initial Tranche B Commitment.
IV. GENERAL.
A. The Credit Agreement, as amended by this Amendment, is ratified and
confirmed and shall continue in full force and effect. This Amendment shall
constitute a Loan Document.
B. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO
BE FULLY PERFORMED, IN SUCH STATE.
C. 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 of which
counterparts together shall constitute but one and the same instrument.
D. The parties hereto acknowledge and agree as follows:
THE AMENDED AND RESTATED DECLARATION OF TRUST ESTABLISHING THE
BORROWER, DATED JULY 1, 1994, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS
THERETO (THE "DECLARATION"), IS DULY FILED IN THE OFFICE OF THE STATE DEPARTMENT
OF ASSESSMENTS AND TAXATION OF MARYLAND, PROVIDES THAT THE NAME "HRPT 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 THE BORROWER SHALL BE HELD TO ANY PERSONAL LIABILITY,
JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE BORROWER. ALL
PERSONS DEALING WITH THE BORROWER, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF
THE BORROWER FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
THE PROVISIONS OF THIS SECTION SHALL NOT LIMIT ANY OBLIGATIONS OF ANY LOAN PARTY
OTHER THAN THE BORROWER.
-9-
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be executed by their authorized officers all as of the day and year
first above written.
HRPT Properties Trust
By: /s/
--------------------------------
Name:
---------------------------
Title:
--------------------------
Attest: /s/
-----------------------------
Name:
---------------------------
Title:
--------------------------
[Signatures Continued on Next Page]
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT DATED AS OF
DECEMBER 19, 2002 WITH HRPT PROPERTIES TRUST]
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Agent, as Tranche B Agent, as
a Lender, as a Tranche B Lender
and as Swingline Lender
By: /s/
--------------------------------
Name:
---------------------------
Title:
--------------------------
Tranche B Commitment Amount:
$72,000,000
Lending Office (all Types of Loans):
Wachovia Bank, National Association
000 Xxxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxx Xxxx
Telecopier: 000-000-0000
Telephone: 000-000-0000
[Signatures Continued on Next Page]
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT DATED AS OF
DECEMBER 19, 2002 WITH HRPT PROPERTIES TRUST]
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Tranche B Commitment Amount:
$60,000,000
Lending Office (all Types of Loans):
Xxxxx Fargo Bank, National Association
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Telecopier: 000-000-0000
Telephone: 000-000-0000
[Signatures Continued on Next Page]
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT DATED AS OF
DECEMBER 19, 2002 WITH HRPT PROPERTIES TRUST]
COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/
--------------------------------
Name:
---------------------------
Title:
--------------------------
Tranche B Commitment Amount:
$60,000,000
Lending Office (all Types of Loans):
Commerzbank AG, New York Branch
2 World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxxx Xxxxx
Telecopier: 000-000-0000
Telephone: 000-000-0000
[Signatures Continued on Next Page]
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT DATED AS OF
DECEMBER 19, 2002 WITH HRPT PROPERTIES TRUST]
THE BANK OF NEW YORK
By: /s/
--------------------------------
Name:
---------------------------
Title:
--------------------------
Tranche B Commitment Amount:
$35,000,000
Lending Office (all Types of Loans):
The Bank of New York
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxx
Telecopier: 000-000-0000
Telephone: 000-000-0000
[Signatures Continued on Next Page]
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT DATED AS OF
DECEMBER 19, 2002 WITH HRPT PROPERTIES TRUST]
AMSOUTH BANK
By: /s/ Xxxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Vice President
Tranche B Commitment Amount:
$25,000,000
Lending Office (all Types of Loans):
AmSouth Bank
0000 0xx Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Telecopier: 000-000-0000
Telephone: 000-000-0000
[Signatures Continued on Next Page]
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT DATED AS OF
DECEMBER 19, 2002 WITH HRPT PROPERTIES TRUST]
CITIZENS BANK OF MASSACHUSETTS
By: /s/
--------------------------------
Name:
---------------------------
Title:
--------------------------
Tranche B Commitment Amount:
$20,000,000
Lending Office (all Types of Loans):
Citizens Bank
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx
Telecopier: 000-000-0000
Telephone: 000-000-0000
[Signatures Continued on Next Page]
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT DATED AS OF
DECEMBER 19, 2002 WITH HRPT PROPERTIES TRUST]
SUNTRUST BANK
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Tranche B Commitment Amount:
$30,000,000
Lending Office (all Types of Loans):
SunTrust Bank
0000 Xxxxx Xxxx
Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Telecopier: 000-000-0000/9190
Telephone: 000-000-0000
[Signatures Continued on Next Page]
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT DATED AS OF
DECEMBER 19, 2002 WITH HRPT PROPERTIES TRUST]
THE GOVERNOR AND COMPANY OF
THE BANK OF IRELAND
By: /s/
--------------------------------
Name:
---------------------------
Title:
--------------------------
By: /s/
--------------------------------
Name:
---------------------------
Title:
--------------------------
Tranche B Commitment Amount:
$15,000,000
Lending Office (all Types of Loans):
The Governor and Company of
the Bank of Ireland
XxXxxxxx House
International Financial Services
Centre
Xxxxxx 0, Xxxxxxx
Attn: Xxxxx X'Xxxxx
Telecopier: 011-353-1-8290129
Telephone: 000-000-0-0000000
[Signatures Continued on Next Page]
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT DATED AS OF
DECEMBER 19, 2002 WITH HRPT PROPERTIES TRUST]
PNC BANK, NATIONAL ASSOCIATION
By: /s/
--------------------------------
Name:
---------------------------
Title:
--------------------------
Tranche B Commitment Amount:
$25,000,000
Lending Office (all Types of Loans):
PNC Bank, National Association
000 Xxxxx Xxxxxx
Mail Stop P1-XXXX-19-2
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxxxxx Xxxxxxx
Telecopier: 000-000-0000
Telephone: 000-000-0000
[Signatures Continued on Next Page]
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT DATED AS OF
DECEMBER 19, 2002 WITH HRPT PROPERTIES TRUST]
CHEVY CHASE BANK, F.S.B.
By: /s/
--------------------------------
Name:
---------------------------
Title:
--------------------------
Tranche B Commitment Amount:
$15,000,000
Lending Office (all Types of Loans):
Chevy Chase Bank, F.S.B.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx-Xxxxxx
Telecopier: 000-000-0000
Telephone: 000-000-0000
[Signatures Continued on Next Page]
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT DATED AS OF
DECEMBER 19, 2002 WITH HRPT PROPERTIES TRUST]
EASTERN BANK
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Tranche B Commitment Amount:
$15,000,000
Lending Office (all Types of Loans):
Eastern Bank
000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxxx XXX000
Xxxxxx XX 00000
Attn: Xxxxxxx Xxxxxxx
Telecopier: 000-000-0000
Telephone: 000-000-0000
[Signatures Continued on Next Page]
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT DATED AS OF
DECEMBER 19, 2002 WITH HRPT PROPERTIES TRUST]
NATIONAL BANK OF EGYPT,
NEW YORK BRANCH
By: /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
By: /s/ Rami El-Rifai
---------------------------------
Name: Rami El-Rifai
Title: Assistant Vice President
Tranche B Commitment Amount:
$10,000,000
Lending Office (all Types of Loans):
National Bank of Egypt
New York Branch
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
Telecopier: 000-000-0000
Telephone: 000-000-0000
[Signatures Continued on Next Page]
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT DATED AS OF
DECEMBER 19, 2002 WITH HRPT PROPERTIES TRUST]
RZB FINANCE LLC
By: /s/
--------------------------------
Name:
---------------------------
Title:
--------------------------
By: /s/
--------------------------------
Name:
---------------------------
Title:
--------------------------
Tranche B Commitment Amount:
$10,000,000
Lending Office (all Types of Loans):
RZB Finance LLC
1133 Avenue of the Americas -
16th Floor
New York, New York 10030
Attn: Xxxxx Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
[Signatures Continued on Next Page]
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT DATED AS OF
DECEMBER 19, 2002 WITH HRPT PROPERTIES TRUST]
BANK LEUMI USA
By: /s/ Xxxxxxx X. X'Xxxxx
---------------------------------
Name: Xxxxxxx X. X'Xxxxx
Title: Vice President
Tranche B Commitment Amount:
$5,000,000
Lending Office (all Types of Loans):
Bank Leumi USA
000 Xxxxx Xxxxxx
Xxx Xxxx XX 00000
Attn: Xxxxxxx X. X'Xxxxx
Telecopier: 212-626-1239
Telephone: 000-000-0000
EXHIBIT Q
FORM OF TRANCHE B SWINGLINE NOTE
$25,000,000.00 _____________, 200_
FOR VALUE RECEIVED, the undersigned, HRPT PROPERTIES TRUST, a Maryland
real estate investment trust (the "Borrower"), hereby promises to pay to the
order of WACHOVIA BANK, NATIONAL ASSOCIATION (the "Swingline Lender") at its
address at One Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, or at such other address as may be specified in writing by the
Swingline Lender to the Borrower, the principal sum of TWENTY-FIVE MILLION AND
NO/100 DOLLARS ($25,000,000.00) (or such lesser amount as shall equal the
aggregate unpaid principal amount of Tranche B Swingline Loans made by the
Swingline Lender to the Borrower under the Credit Agreement), on the dates and
in the principal amounts provided in the Credit Agreement, and to pay interest
on the unpaid principal amount owing hereunder, at the rates and on the dates
provided in the Credit Agreement.
The date and amount of each Tranche B Swingline Loan, and each payment
made on account of the principal thereof, shall be recorded by the Swingline
Lender on its books and, prior to any transfer of this Note, endorsed by the
Swingline Lender on the schedule attached hereto or any continuation thereof,
PROVIDED that the failure of the Swingline Lender to make any such recordation
or endorsement shall not affect the obligations of the Borrower to make a
payment when due of any amount owing under the Credit Agreement or hereunder in
respect of the Tranche B Swingline Loans.
This Note is the Tranche B Swingline Note referred to in the Credit
Agreement dated as of April 30, 2001 (as amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"), by and among the
Borrower, the financial institutions party thereto and their assignees under
Section 12.5. thereof (the "Lenders"), Wachovia Bank, National Association, as
Agent, and the other parties thereto, and evidences Tranche B Swingline Loans
made to the Borrower thereunder. Terms used but not otherwise defined in this
Note have the respective meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Tranche B
Swingline Loans upon the terms and conditions specified therein.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.
The Borrower hereby waives presentment for payment, demand, notice of
demand, notice of non-payment, protest, notice of protest and all other similar
notices.
Time is of the essence for this Note.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Tranche B Swingline Note under seal as of the date first written above.
HRPT PROPERTIES TRUST
By:
-------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Attest:
----------------------------------------
Name:
-----------------------------------
Title:
---------------------------------
[CORPORATE SEAL]
Q-2
SCHEDULE OF TRANCHE B SWINGLINE LOANS
This Note evidences Tranche B Swingline Loans made
under the within-described Credit Agreement to the Borrower, on the
dates and in the principal amounts set forth below, subject to the
payments and prepayments of principal set forth below:
PRINCIPAL UNPAID
AMOUNT OF AMOUNT PAID PRINCIPAL NOTATION
DATE OF LOAN LOAN OR PREPAID AMOUNT MADE BY
------------ --------- ----------- --------- ---------
Q-3
EXHIBIT R
FORM OF TRANCHE B REVOLVING NOTE
$____________________ _______________, 200_
FOR VALUE RECEIVED, the undersigned, HRPT PROPERTIES TRUST, a Maryland
real estate investment trust (the "Borrower"), hereby promises to pay to the
order of ____________________ (the "Tranche B Lender"), in care of Wachovia
Bank, National Association, as Tranche B Agent (the "Agent") to Wachovia Bank,
National Association, One Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000, or at such other address as may be specified in writing by
the Agent to the Borrower, the principal sum of ________________ AND ____/100
DOLLARS ($____________) (or such lesser amount as shall equal the aggregate
unpaid principal amount of Tranche B Revolving Loans made by the Tranche B
Lender to the Borrower under the Credit Agreement (as herein defined)), on the
dates and in the principal amounts provided in the Credit Agreement, and to pay
interest on the unpaid principal amount owing hereunder, at the rates and on the
dates provided in the Credit Agreement.
The date and amount of each Tranche B Revolving Loan made by the
Tranche B Lender to the Borrower, and each payment made on account of the
principal thereof, shall be recorded by the Tranche B Lender on its books and,
prior to any transfer of this Note, endorsed by the Tranche B Lender on the
schedule attached hereto or any continuation thereof, PROVIDED that the failure
of the Tranche B Lender to make any such recordation or endorsement shall not
affect the obligations of the Borrower to make a payment when due of any amount
owing under the Credit Agreement or hereunder in respect of the Tranche B
Revolving Loans made by the Tranche B Lender.
This Note is one of the Tranche B Revolving Notes referred to in the
Credit Agreement dated as of April 30, 2001 (as amended, restated, supplemented
or otherwise modified from time to time, the "Credit Agreement"), by and among
the Borrower, the financial institutions party thereto and their assignees under
Section 12.5. thereof, the Agent, and the other parties thereto. Capitalized
terms used herein, and not otherwise defined herein, have their respective
meanings given them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Loans
upon the terms and conditions specified therein.
Except as permitted by Section 12.5.(d) of the Credit Agreement, this
Note may not be assigned by the Tranche B Lender to any Person.
This Note shall be governed by, and construed in accordance with, the
laws of the State of NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.
The Borrower hereby waives presentment for payment, demand, notice of
demand, notice of non-payment, protest, notice of protest and all other similar
notices.
Time is of the essence for this Note.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Tranche B Revolving Note under seal as of the date first written above.
HRPT PROPERTIES TRUST
By:
-----------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
X-0
XXXXXXXX XX XXXXXXX X REVOLVING LOANS
This Note evidences Tranche B Revolving Loans made under the
within-described Credit Agreement to the Borrower, on the dates, in the
principal amounts, bearing interest at the rates and maturing on the dates set
forth below, subject to the payments and prepayments of principal set forth
below:
PRINCIPAL MATURITY AMOUNT UNPAID
DATE OF AMOUNT OF INTEREST DATE OF PAID OR PRINCIPAL NOTATION
LOAN LOAN RATE LOAN PREPAID AMOUNT MADE BY
------- --------- -------- -------- ------- --------- --------
X-0
XXXXXXX X
XXXX XX XXXXXXX X BID RATE NOTE
____________, 200_
FOR VALUE RECEIVED, the undersigned, HRPT PROPERTIES TRUST, a Maryland
real estate investment trust (the "Borrower"), hereby promises to pay to the
order of ________________ (the "Tranche B Lender"), in care of Wachovia Bank,
National Association, as Tranche B Agent (the "Agent") to Wachovia Bank,
National Association, One Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000, or at such other address as may be specified in writing by
the Agent to the Borrower, the aggregate unpaid principal amount of Tranche B
Bid Rate Loans made by the Tranche B Lender to the Borrower under the Credit
Agreement, on the dates and in the principal amounts provided in the Credit
Agreement, and to pay interest on the unpaid principal amount of each such
Tranche B Bid Rate Loan, at such office at the rates and on the dates provided
in the Credit Agreement.
The date, amount, interest rate and maturity date of each Tranche B Bid
Rate Loan made by the Tranche B Lender to the Borrower, and each payment made on
account of the principal thereof, shall be recorded by the Tranche B Lender on
its books and, prior to any transfer of this Note, endorsed by the Tranche B
Lender on the schedule attached hereto or any continuation thereof, PROVIDED
that the failure of the Tranche B Lender to make any such recordation or
endorsement shall not affect the obligations of the Borrower to make a payment
when due of any amount owing under the Credit Agreement or hereunder in respect
of the Tranche B Bid Rate Loans made by the Tranche B Lender.
This Note is one of the Tranche B Bid Rate Notes referred to in the
Credit Agreement dated as of April 30, 2001 (as amended, restated, supplemented
or otherwise modified from time to time, the "Credit Agreement"), by and among
the Borrower, the financial institutions party thereto and their assignees under
Section 12.5. thereof, the Agent, and the other parties thereto, and evidences
Tranche B Bid Rate Loans made by the Tranche B Lender thereunder. Terms used but
not otherwise defined in this Note have the respective meanings assigned to them
in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Tranche B
Bid Rate Loans upon the terms and conditions specified therein.
Except as permitted by Section 12.5. of the Credit Agreement, this Note
may not be assigned by the Tranche B Lender to any Person.
This Note shall be governed by, and construed in accordance with, the
laws of the State of NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.
The Borrower hereby waives presentment for payment, demand, notice of
demand, notice of non-payment, protest, notice of protest and all other similar
notices.
Time is of the essence for this Note.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Tranche B Bid Rate Note under seal as of the date first written above.
HRPT PROPERTIES TRUST
By:
-----------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
S-2
SCHEDULE OF TRANCHE B BID RATE LOANS
This Note evidences Tranche B Bid Rate Loans made under the
within-described Credit Agreement to the Borrower, on the dates, in the
principal amounts, bearing interest at the rates and maturing on the dates set
forth below, subject to the payments and prepayments of principal set forth
below:
PRINCIPAL MATURITY AMOUNT UNPAID
DATE OF AMOUNT OF INTEREST DATE OF PAID OR PRINCIPAL NOTATION
LOAN LOAN RATE LOAN PREPAID AMOUNT MADE BY
------- --------- -------- -------- ------- --------- --------
S-3
