EXECUTION
HRPT PROPERTIES TRUST
FIRST AMENDMENT AND LIMITED WAIVER TO LOAN AGREEMENT
This FIRST AMENDMENT AND LIMITED WAIVER TO LOAN AGREEMENT (this
"Amendment") is dated as of February 12, 1999 and entered into by and among HRPT
PROPERTIES TRUST, a Maryland real estate investment trust, formerly known as
Health and Retirement Properties Trust ("Borrower"), the financial institutions
listed on the signature pages hereof ("Lenders"), DRESDNER KLEINWORT XXXXXX
NORTH AMERICA LLC, a limited liability company organized under the laws of
Delaware, as agent for Lenders ("Agent") and Fleet National Bank, as
Administrative Agent ("Administrative Agent"), and, for purposes of Section 6
hereof, the Guarantors listed on the signature pages hereof, and is made with
reference to that certain Fourth Amended and Restated Loan Agreement dated as of
April 2, 1998 (the "Loan Agreement") by and among Borrowers, Lenders, Agent,
Administrative Agent and certain of Guarantors. Capitalized terms used herein
without definition shall have the same meanings herein as set forth in the Loan
Agreement.
WHEREAS, Borrower intends to focus its investments on office properties
and has recently formed Senior Housing Properties Trust, a Maryland real
investment trust and a wholly-owned direct subsidiary of Borrower ("Senior
Housing") with the intention of transferring its senior housing properties to
Senior Housing and its Subsidiaries and, subsequent to such transfer, spinning
off Senior Housing to the existing common shareholders of Borrower (the
"Spin-Off"); and
WHEREAS, Borrower, Lenders, Agent and Administrative Agent desire (i)
whether or not the Spin-Off is consummated, to amend the Loan Agreement to
remove the restriction from Section 6.8 of the Loan Agreement which provides
that the aggregate amount of Indebtedness of Borrower and its Subsidiaries
cannot exceed the Aggregate Allowed Value of Eligible Properties and Eligible
Mortgages that consist of interests in facilities that are used for healthcare
or related services, and (ii) to waive the provisions of the Loan Agreement to
the extent required to permit the Spin-Off and certain related transactions.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
Section 1. AMENDMENTS TO THE LOAN AGREEMENT.
1.1 Amendment to Section 1: Definitions. The definition of "Tangible Net Worth"
set forth in Section 1.1 of the Loan Agreement is hereby amended by inserting
the words "or of Senior Housing Properties Trust, a Maryland real estate
investment trust," immediately after the reference to "Hospitality Properties
Trust" in clause (v) of the exclusions thereto.
1.2 Amendment to Section 6: Negative Covenant. Clause (a) of Section 6.8 of the
Loan Agreement is hereby amended by deleting the words "the lesser of (x)" from
the sixth line thereof and the words "or (y) 100% of the aggregated Allowed
Value of Eligible Properties and
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Eligible Mortgages that consist of interest in facilities that are used for
healthcare or related services" from the seventh, eighth and ninth lines
thereof.
Section 2. LIMITED WAIVER.
2.1 Waiver. Subject to the terms and conditions set forth herein and in reliance
on the representations and warranties of Borrower herein contained, Lenders
hereby waive compliance with the provisions of Sections 6.3(a), 6.3(b)(iii) and
6.5 of the Loan Agreement to the extent, and only to the extent, necessary to
permit Borrower to (i) contribute, or permit its Subsidiaries to contribute,
some or all of its senior housing properties (including senior housing,
congregate communities, assisted living properties and nursing homes) to certain
newly-created Subsidiaries, (ii) contribute the stock of the Subsidiaries
described in the foregoing clauses to Senior Housing immediately prior to the
Spin-Off, and (iii) distribute some or all of the common shares of Senior
Housing to its common shareholders as an extraordinary dividend; provided, that
(x) the proceeds of any promissory note or any cash received by Borrower in
consideration of any of the transactions described in the foregoing clauses or
the Spin-Off shall immediately be applied to the prepayment of the Loans and (y)
the distribution described in clause (iii) shall otherwise be made in compliance
with the provisions of Section 6.2.
2.2 Limitation of Waiver. Without limiting the generality of the provisions of
subsection 10.4 and 10.6 of the Loan Agreement, the waiver set forth above shall
be limited precisely as written and nothing in this Amendment shall be deemed
to:
(a) constitute a waiver of compliance by Borrower with respect
to (i) sections 6.3(a), 6.3(b)(iii) and 6.5 of the Loan Agreement in
any other instance or (ii) any other term, provision or condition of
the Loan Agreement or any other instrument or agreement referred to
therein (whether in connection with the Spin-Off and the related
transactions or otherwise); or
(b) prejudice any right or remedy that Agent, Administrative
Agent or 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.
Section 3. RELEASE.
Upon the consummation of the Spin-Off, Senior Housing and its
Subsidiaries shall be released from the guarantee set forth in Section 9 of the
Loan Agreement to which they are, or shall upon their creation become, party.
Section 4. CONDITION TO EFFECTIVENESS.
Sections 1, 2 and 3 of this Amendment shall become effective only upon
the date on or before June 30, 1999 (the "Effective Date") of the payment by
Borrower to Agent, for distribution to each Lender party to this Amendment (or,
if applicable, its successors and
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assigns), a non-refundable fee in immediately available funds in an amount equal
to 0.30% of such Lender's Commitment, payment of which may be made at Borrower's
sole election.
Section 5. BORROWER'S REPRESENTATIONS AND WARRANTIES.
In order to induce Lenders to enter into this Amendment and to amend
the Loan Agreement in the manner provided herein, Borrower represents and
warrants to each Lender that the following statements are true, correct and
complete:
A. Trust or Corporate Power and Authority. Borrower and each Guarantor
has all requisite trust or corporate power and authority to enter into this
Amendment and to carry out the transactions contemplated by, and perform its
respective obligations under, the Loan Agreement as amended by this Amendment
(the "Amended Agreement").
B. Authorization of Agreements. The execution and delivery of this
Amendment and the performance of the Amended Agreement have been duly authorized
by all necessary trust or corporate action on the part of Borrower and
Guarantors.
C. No Conflict. The execution and delivery by Borrower and Guarantors
of this Amendment and the performance by Borrower and Guarantors of the Amended
Agreement do not and will not (i) violate any provision of any law or any
governmental rule or regulation applicable to Borrower or any of its
Subsidiaries, the Declaration or Trust, or Certificates or Articles of
Incorporation or Bylaws of Borrower or any of its Subsidiaries or any order,
judgment or decree of any court or other agency of government binding on
Borrower or any of its Subsidiaries, (ii) conflict with, result in a breach of
or constitute (with due notice or lapse of time or both) a default under any
contractual obligation of Borrower or any of its Subsidiaries, (iii) result in
or require the creation or imposition of any Lien upon any of the properties or
assets of Borrower or any of its Subsidiaries, or (iv) require any approval of
stockholders or any approval or consent of any Person under any contractual
obligation of Borrower or any of its Subsidiaries, except for such approvals or
consents which will be obtained on or before the date hereof.
D. Governmental Consents. The execution and delivery by Borrower and
Guarantors of this Amendment and the performance by Borrower and Guarantors of
the Amended Agreement do not and will not require any registration with, consent
or approval of, or notice to, or other action to, with or by, any federal, state
or other governmental authority or regulatory body.
E. Binding Obligation. This Amendment and the Amended Agreement have
been duly executed and delivered by Borrower and each Guarantor and are the
legally valid and binding obligations of Borrower and Guarantors against
Borrower and each Guarantor in accordance with their respective terms, except as
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or limited creditors' rights generally or by equitable
principles relating to enforceability.
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F. Incorporation of Representations and Warranties From Loan Agreement.
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 date hereof and to the same extent as though made on and as of that date,
except to the extent such representations and warranties specifically 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.
G. Absence of Default. No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Amendment
that would constitute a Default or an Event of Default.
Section 6. ACKNOWLEDGEMENT AND CONSENT
Each 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 Loan Agreement effected pursuant to this Amendment. Each
Guarantor hereby confirms that it will continue to guaranty to the fullest
extent possible the full and punctual payment 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 the Loan Agreement (including amounts that would become due but
for the operation of the automatic stay under Section 362(e) of the United
States Bankruptcy Code) subject to the limitations set forth in Section 9(a) of
the Loan Agreement.
Each Guarantor acknowledges and agrees that (i) notwithstanding the
conditions to effectiveness set forth in this Amendment, such Guarantor is not
required by the terms of the Loan Agreement or any other Loan Document to
consent to the amendments to the Loan Agreement effected pursuant to this
Amendment and (ii) nothing in the Loan Agreement, this Amendment or any other
Loan Document shall be deemed to require the consent of such Guarantor to any
future amendments to the Loan Agreement.
Section 7. MISCELLANEOUS
7.1 Reference to and Effect on the Loan Agreement and the Other Loan
Documents.
A. On and after the Effective Date, each reference in the Loan
Agreement to "this Agreement," "hereunder," "hereof," "herein" or words of the
like import referring to the Loan Agreement, and each reference in the other
Loan Documents to the "Loan Agreement," "thereunder," "thereof" or words of like
import referring to the Loan Agreement shall mean and be a reference to the
Amended Agreement.
B. Except as specifically amended or waived by this Amendment, the Loan
Agreement and the other Loan Documents shall remain in full force and effect and
are hereby ratified and confirmed.
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C. The execution, delivery and performance of this Amendment shall not,
except as expressly provided herein, constitute a waiver of any provision of, or
operate as a waiver of any right, power or remedy of Agent or any Lender under,
the Loan Agreement or any of the other Loan Documents.
7.2 Fees and Expenses. Borrower acknowledges that all costs, fees and expenses
as described in subsection 10.7 of the Loan Agreement incurred by Agent and its
counsel with respect to this Amendment and the documents and transactions
contemplated hereby shall be for the account of Borrower.
7.3 Headings. Sections and subsection heading 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.
7.4 Applicable Law. THIS AMENDMENT 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 SATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS OF LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
7.5 Counterparts; Effectiveness. 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 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. This Amendment (other than the provisions of Sections 1, 2
and 3 hereof, the effectiveness of which is governed by Section 4 hereof) shall
become effective upon (i) the execution of a counterpart hereof by Borrower,
Agent and Majority Lenders, and receipt by Borrower and Agent of written or
telephonic notification of such execution and authorization of delivery thereof
and (ii) the payment by Borrower to Administrative Agent, for distribution to
the Lenders that have executed this Amendment, of a non-refundable amendment fee
in immediately available funds in an amount equal to 0.20% of each such Lender's
Commitment.
7.6 Non-Liability of Trustees. 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 "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 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
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WAY, SHALL LOOK ONLY TO THE ASSETS OF BORROWER FOR THE PAYMENT OF ANY SUM OR THE
PERFORMANCE OF ANY OBLIGATION.
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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.
HRPT PROPERTIES TRUST
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Treasurer
DRESDNER KLEINWORT XXXXXX
NORTH AMERICA, LLC, as Agent
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice Prsident
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
DRESDNER BANK AG, New York Branch
and Grand Cayman Branch, as a Lender
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President
By: /s/ Xxxxxxx X. X'Xxxx
Name: Xxxxxxx X. X'Xxxx
Title: Vice President
FLEET NATIONAL BANK,
as Administrative Agent and as a Lender
By: /s/ Xxxxxx Xxxxxxxxxxxxx
Name: X. Xxxxxxxxxxxxx
Title: SVP
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ABBEY NATIONAL TREASURY SERVICES PLC,
as a Lender
By: /s/
Name:
Title:
ARAB AMERICAN BANK,
as a Lender
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
BANKBOSTON, N.A.
as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Director
BANK HAPOALIM B.M.,
as a Lender
By: /s/ Amram Lador
Name: Amram (Rami) Lador
Title: First V.P. & Branch Manager
Bank Hapoalim
Philadelphia Branch
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President
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BANK OF IRELAND,
as a Lender
By: /s/ Xxxxxxxxx Xxxxxxxx
Name: Xxxxxxxxx Xxxxxxxx
Title: Manager
BANK OF MONTREAL, as a Lender
By: /s/ X.X. Xxxxxxx
Name: X.X. Xxxxxxx
Title: Portfolio Manager
BANQUE NATIONALE DE PARIS, as a Lender
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President
By: /s/ Xxxx XxXxxxxx
Name: Xxxx XxXxxxxx
Title: Assistant Vice President
CIBC INC., as a Lender
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Executive Director
CIBC Xxxxxxxxxxx Corp.,
AS AGENT
COMERICA BANK, as a Lender
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Account Officer
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CREDIT LYONNAIS New York Branch,
as a Lender
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Vice President
DG BANK, DEUTSCHE GENOSSENSCHAFTSBANK AG
Cayman Island Branch, as a Lender
By: /s/ Xxxxx X. X'Xxxxxxx
Name: Xxxxx X. X'Xxxxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK,
as a Lender
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Director
KEY CORPORATE CAPITAL INC.,
as a Lender
By: /s/ Xxxxxxx Xxxxxxxxxx
Name: Xxxxxxx Xxxxxxxxxx
Title: Officer
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XXXXX BANK N.A.,
as a Lender
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
RZB FINANCE LLC,
as a Lender
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President
By: /s/ Dieter Beintrexler
Name: Dieter Beintrexler
Title: President
SOCIETE GENERALE,
as a Lender
By: /s/ Sedare Xxxxxxx
Name: Sedare Xxxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Director
THE BANK OF NEW YORK,
as a Lender
By: /s/ Xxxxxx X. XxXxxxxx
Name: Xxxxxx X. XxXxxxxx
Title: Vice President
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THE BANK OF NOVA SCOTIA,
New York Agency, as a Lender
By: /s/ Xxxxxxxxxxx X. Xxxxx
Name: Xxxxxxxxxxx X. Xxxxx
Title: Senior Relationship Manager
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., New York Branch,
as a Lender
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Deputy General Manager
VIA BANQUE, as a Lender
By: /s/
Name:
Title:
By:
Name:
Title:
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For the purposes of Section 7: HEALTH AND RETIREMENT
PROPERTIES INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Treasurer
CAUSEWAY HOLDINGS INC.
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Treasurer
CHURCH CREEK CORPORATION
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Treasurer
HUB PROPERTIES TRUST
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Treasurer
HUB ACQUISITION TRUST
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Treasurer
HUB LA PROPERTIES TRUST
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Treasurer
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HUB RI PROPERTIES TRUST
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Treasurer
HUB WOODMONT INVESTMENT TRUST
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Treasurer
HUB REALTY FUNDING, INC.
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Treasurer
HUB MANAGEMENT, INC.
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Treasurer
HUB REALTY COLLEGE PARK, INC.
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Treasurer
INDEMNITY COLLECTION CORPORATION
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Treasurer
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HUB REALTY KANSAS CITY, INC.
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Treasurer
HUB REALTY GOLDEN, INC.
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Treasurer
HUB REALTY COLLEGE PARK I, LLC, By HUB
Management, Inc., its Manager
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Treasurer
HUB LA LIMITED PARTNERSHIP
BY HUB LA Prop Trust, its general
partner
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Treasurer
HUB WOODMONT LLC, By HUB Woodmont
Investment Trust, its Manager
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Treasurer
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0000 XXXXXX XXXXXX PROPERTIES TRUST
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
NINE PENN CENTER ASSOCIATES, L.P.
BY NINE PENN CENTER PROPERTIES TRUST,
its general partner
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
NINE PENN CENTER PROPERTIES TRUST
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
RESEARCH PARK PROPERTIES TRUST
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
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SENIOR HOUSING PROPERTIES TRUST
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Treasurer
SPTMRT PROPERTIES TRUST
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Treasurer
SPTIHS PROPERTIES TRUST
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Treasurer
SPTSUN PROPERTIES TRUST
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Treasurer
SPTMISC PROPERTIES TRUST
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Treasurer
SPTMNR PROPERTIES TRUST
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Treasurer
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SPTBROOK PROPERTIES TRUST
By: /s/
Name:
Title:
SPTGEN PROPERTIES TRUST
By: /s/
Name:
Title:
