Ex 1.2
, dated as of July 2, 1997 (the ""), by and between Health and Retirement Properties Trust (the
"Company") and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx").
WHEREAS, the Company will issue $150,000,000 aggregate principal amount of
Remarketed Reset Notes Due July 9, 2007 (the "Notes"), such Notes to be issued
under an Indenture dated as of July 9, 1997 and a Supplemental Indenture dated
as of July 9, 1997 (together, the "Indenture"), both by and between the Company
and State Street Bank and Trust Company, as trustee (the "Trustee"); and
WHEREAS, the Notes are to be initially offered to the public through
Xxxxxxx Xxxxx; and
WHEREAS, the Company has requested Xxxxxxx Xxxxx to act as Rate Agent (as
defined in Section 2(a) hereof) and as Remarketing Underwriter (as defined in
Section 2(a) hereof) in connection with the Notes and as such to perform the
services described herein; and
WHEREAS, Xxxxxxx Xxxxx is willing to act as Rate Agent and as Remarketing
Underwriter in connection with the Notes and as such to perform such duties on
the terms and conditions expressly set forth herein.
NOW, THEREFORE, for and in consideration of the covenants herein made, and
subject to the conditions herein set forth, the parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used and not defined in this
Agreement shall have the respective meanings assigned to them in the Notes or,
if not therein stated, in the Indenture relating to the offering of the Notes.
Section 2. Appointment and Obligations of Xxxxxxx Xxxxx. (a) The Company
hereby appoints Xxxxxxx Xxxxx, and Xxxxxxx Xxxxx hereby accepts such
appointment, (i) as the rate agent (the "Rate Agent") of the Company to
determine (1) LIBOR and the interest rate on the Notes for any Quarterly Period,
and/or (2) the yield to maturity on the applicable United States Treasury
security that is used in connection with the determination of the applicable
Fixed Rate, and the ensuing applicable Fixed Rate and (ii) as the exclusive
remarketing underwriter (the "Remarketing Underwriter") for the purpose of (x)
recommending to the Company the Spread for each Subsequent Spread Period that,
in the opinion of the Remarketing Underwriter, will enable the Remarketing
Underwriter to remarket, for delivery on the Tender Date, tendered Notes at 100%
of the principal amount thereof, (y) if the Company and the Remarketing
Underwriter agree on the Spread referred to in (x) above, entering into a
remarketing underwriting agreement (each, a "Remarketing Underwriting
Agreement") with the Company, substantially in the form attached hereto as
Exhibit A, pursuant to which the Remarketing Underwriter will agree to purchase
the Notes tendered by the beneficial owners thereof (the "Beneficial Owners")
and remarket such Notes (each such purchase and remarketing being hereinafter
referred to as a "Remarketing"), and (z) performing such other duties as are
assigned to the Remarketing Underwriter in the Notes and/or the Indenture and/or
the applicable Remarketing Underwriting Agreement.
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(b) The Rate Agent hereby agrees to determine LIBOR on each LIBOR
Determination Date in accordance with the following provisions and the other
relevant provisions of the Notes:
(i) LIBOR shall be determined on the basis of the offered rates for
three-month deposits in U.S. Dollars of not less than U.S. $1,000,000,
commencing on the second London Business Day immediately following the
applicable LIBOR Determination Date, which appears on Telerate Page 3750 as
of approximately 11:00 a.m., London time, on the applicable LIBOR
Determination Date. If no rate appears on Telerate Page 3750, LIBOR for the
applicable LIBOR Determination Date will be determined in accordance with
the provisions of paragraph (ii) below.
(ii) With respect to a LIBOR Determination Date on which no rate
appears on Telerate Page 3750 as of approximately 11:00 a.m., London time,
on the applicable LIBOR Determination Date, the Rate Agent shall select
four major reference banks in the London interbank market and shall request
the principal London offices of each of such banks to provide it with a
quotation of the rate at which three-month deposits in U.S. Dollars,
commencing on the second London Business Day immediately following the
applicable LIBOR Determination Date, are offered by it to prime banks in
the London interbank market as of approximately 11:00 a.m., London time, on
the applicable LIBOR Determination Date and in a principal amount equal to
an amount of not less than U.S. $1,000,000 that is representative for a
single transaction in such market at such time. If at least two such
quotations are provided, LIBOR for the applicable LIBOR Determination Date
will be the arithmetic mean of such quotations as calculated by the Rate
Agent. If fewer than two quotations are provided, the Rate Agent, after
consultation with the
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Company, shall select three major banks in The City of New York and shall
request each of such banks to provide it with the rates quoted by such bank
as of approximately 11:00 a.m., New York City time, on the applicable LIBOR
Determination Date for loans in U.S. Dollars to leading European banks,
having a three-month maturity, commencing on the second London Business Day
immediately following the applicable LIBOR Determination Date and in a
principal amount equal to an amount of not less than U.S. $1,000,000 that
is representative for a single transaction in such market at such time, and
LIBOR for the applicable LIBOR Determination Date shall be the arithmetic
mean of such rates; provided, however, that if the banks selected as
aforesaid by the Rate Agent are not quoting as mentioned in this sentence,
LIBOR for the applicable LIBOR Determination Date will be the LIBOR
determined with respect to the immediately preceding LIBOR Determination
Date, or in the case of the first LIBOR Determination Date, LIBOR for the
Initial Quarterly Period.
(c) The Rate Agent hereby agrees to determine the yield to maturity on the
applicable United States Treasury security that is used in connection with the
determination of the applicable Fixed Rate, and the ensuing applicable Fixed
Rate, in accordance with the following provisions: If the Notes are to be reset
to the Fixed Rate Mode, as agreed to by the Company and the Remarketing
Underwriter on a Duration/Mode Determination Date, then the applicable Fixed
Rate for the corresponding Subsequent Spread Period will be determined as of the
sixth calendar day following the Spread Determination Date (provided that such
date is a Business Day; otherwise, as of the next Business Day thereafter) (the
"Fixed Rate Determination Date") (provided, however, that in the case of where
the Notice Date also falls on the Fixed Rate Determination Date, the
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Fixed Rate Determination Date will be the following Business Day thereafter).
The Fixed Rate will be a per annum rate and will be determined as of 12:00 Noon
on such Fixed Rate Determination Date by adding the applicable Spread (as agreed
to by the Company and the Remarketing Underwriter on the preceding Spread
Determination Date) to the yield to maturity (expressed as a bond equivalent, on
the basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) of the applicable United States Treasury security, selected by the Rate
Agent after consultation with the Remarketing Underwriter, as having a maturity
comparable to the duration selected for the following Subsequent Spread Period,
which would be used in accordance with customary financial practice in pricing
new issues of corporate debt securities of comparable maturity to the duration
selected for the following Subsequent Spread Period.
Section 2. Fees and Expenses. The obligations of the Company to pay to the
Remarketing Underwriter on each Tender Date the fees set forth in the applicable
Remarketing Underwriting Agreement shall survive the termination of this
Agreement and remain in full force and effect until all such payments shall have
been made in full.
Section 3. Removal of the Rate Agent and Remarketing Underwriter. With
respect to any Subsequent Spread Period, the Company may in its absolute
discretion remove the Rate Agent and Remarketing Underwriter by giving notice to
the Rate Agent and Remarketing Underwriter prior to 3:00 p.m., New York City
time, on the Duration/Mode Determination Date applicable thereto, such removal
to be effective upon the Company's appointment of a successor Rate Agent and
Remarketing Underwriter. In such case, the Company will use its best efforts to
appoint a
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successor Rate Agent and Remarketing Underwriter and enter into such a
with such persons as soon as reasonably practicable.
Section 5. Dealing in the Notes. Subject to its compliance with applicable
laws and regulations, Xxxxxxx Xxxxx, when acting as a Rate Agent and Remarketing
Underwriter or in its individual or any other capacity, may buy, sell, hold and
deal in any of the Notes. Xxxxxxx Xxxxx may exercise any vote or join in any
action which any Beneficial Owner of Notes may be entitled to exercise or take
with like effect as if it did not act in any capacity hereunder. Xxxxxxx Xxxxx,
in its individual capacity, either as principal or agent, may also engage in or
have an interest in any financial or other transaction with the Company as
freely as if it did not act in any capacity hereunder.
Section 6. Current Prospectus. In connection with each Remarketing, if and
to the extent required by applicable law or regulations or interpretations of
the Securities and Exchange Commission in effect at the time of such
Remarketing, the Company shall furnish a current prospectus to be used by the
Remarketing Underwriter in such Remarketing.
Section 7. Conditions to the Remarketing Underwriter's Obligations. The
obligations of the Remarketing Underwriter to purchase and remarket the Notes
shall be subject to the terms and conditions of the applicable Remarketing
Underwriting Agreement.
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Section 8. Termination of this . This Agreement shall
terminate as to the Rate Agent and the Remarketing Underwriter on the effective
date of the removal of such Rate Agent and Remarketing Underwriter pursuant to
Section 4 hereof.
Section 9. Rate Agent's and Remarketing Underwriter's Performance; Duty of
Care. The duties and obligations of the Rate Agent and Remarketing Underwriter
hereunder shall be determined solely by the express provisions of this Agreement
and the Notes and the Indenture and, in the case of the Remarketing Underwriter,
the applicable Remarketing Underwriting Agreement.
Section 10. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in such State.
Section 11. Term of Agreement. Unless otherwise terminated in accordance
with the provisions hereof, this Agreement shall remain in full force and effect
from the date hereof until the first day thereafter on which no Notes are
outstanding.
Section 12. Successors and Assigns. The rights and obligations of the
Company hereunder may not be assigned or delegated to any other person without
the prior written consent of Xxxxxxx Xxxxx. The rights and obligations of
Xxxxxxx Xxxxx hereunder may not be assigned or delegated to any other person
without the prior written consent of the Company. This Agreement
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shall inure to the benefit of and be binding upon the Company and Xxxxxxx Xxxxx
and their respective successors and assigns. The terms "successors" and
"assigns" shall not include any purchaser of any Notes merely because of such
purchase.
Section 13. Headings. Section headings have been inserted in this Agreement
as a matter of convenience of reference only, and it is agreed that such section
headings are not a part of this Agreement and will not be used in the
interpretation of any provisions of this Agreement.
Section 14. Severability. If any provision of this Agreement shall be held
or deemed to be or shall, in fact, be invalid, inoperative or unenforceable as
applied in any particular case in any or all jurisdictions because it conflicts
with any provision of any constitution, statute, rule or public policy or for
any other reason, such circumstances shall not have the effect of rendering the
provision in question invalid, inoperative or unenforceable in any other case,
circumstances or jurisdiction, or of rendering any other provision or provisions
of this Agreement invalid, inoperative or unenforceable to any extent
whatsoever.
Section 15. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
Section 16. Amendments. This Agreement may be amended by any instrument in
writing signed by each of the parties hereto.
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Section 17. Notices. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing or transmitted by any standard form of
telecommunication or by telephone and confirmed in writing. All written notices
shall be deemed to be validly given or made, if delivered by hand, when so
delivered, or if mailed, when mailed registered or certified mail, return
receipt requested and postage prepaid. All notices by telecommunication
(including telephone) shall be deemed to be validly given or made when received.
All such notices, requests, consents or other communications shall be addressed
as follows: if to the Company, to Health and Retirement Properties Trust, 000
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx,
President; and if to Xxxxxxx Xxxxx, to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Xxxxxxx Xxxxx World Headquarters, World Financial Center, Xxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Debt Syndicate, or to such
other address as either of the above shall specify to the other in writing.
Section 18. Benefit. Nothing in this Agreement, express or implied, is
intended or shall be construed to confer upon or give any person other than the
parties hereto any remedy or claim under or by reason of this Agreement or any
term, covenant or condition hereof, all of which shall be for the sole and
exclusive benefit of the parties.
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IN WITNESS WHEREOF, each of the Company and Xxxxxxx Xxxxx has caused this
Agreement to be executed in its name and on its behalf by one of its duly
authorized officers as of the date first above written.
HEALTH AND RETIREMENT PROPERTIES TRUST
By: /s/ Xxxx Xxxxx
--------------------------
Name: Xxxx Xxxxx
Title:Treasurer
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxxxxxx Xxxx Xxxxx
---------------------------
Name: Xxxxxxxxx Xxxx Xxxxx
Title: Vice President
EXHIBIT A
---------
REMARKETING UNDERWRITING AGREEMENT
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
(the "Remarketing Underwriter") hereby agrees to purchase the Notes described
below (the "Notes") that have been tendered by the holders thereof for sale on
__________________ (the "Tender Date").
It is acknowledged and agreed that the Notes need not be further registered
under the Securities Act of 1933, as amended (the "Act"), and that, in
connection with the remarketing of the Notes by the Remarketing Underwriter in
accordance with the terms of the dated July 2, 1997, no
prospectus meeting the requirements of Section 10 of the Act need be delivered,
or filed pursuant to Rule 424 under the Act.
It is understood that the Remarketing Underwriter will deliver to
purchasers and prospective purchasers, in connection with the remarketing, one
or more forms of written communication describing the terms of the Notes (each,
a "Remarketing Memorandum"), the form of each of which shall be delivered to
Health and Retirement Properties Trust (the "Company") (not less than two
Business Days prior to its use) and subject to the approval of the Company prior
to its use by the Remarketing Underwriter, which approval shall not be
unreasonably withheld.
The Remarketing Underwriter shall offer to purchase Notes and purchase
validly tendered Notes on the Tender Date in accordance with all applicable laws
and regulations and interpretations of the Securities and Exchange Commission.
The provisions of Sections 1, 3, 4, 5, 6, 7, 8 and 9 of the attached
Purchase Agreement are incorporated in their entirety into this Agreement and
made applicable to the obligations of the Remarketing Underwriter to the extent
applicable to any remarketing of the Notes, except as explicitly amended hereby.
All references therein to "you" or to the "Underwriter" shall be deemed to refer
to the Remarketing Underwriter, all references to the "Securities" shall be
deemed to refer to the Notes, and all references to "Closing Time" shall be
deemed to refer to the Tender Date. To the extent such provisions refer to the
"Prospectus" or the "Registration Statement," such references shall be deemed to
refer to any Remarketing Memorandum or registration statement, if any, that the
Company is required to prepare or file pursuant to applicable law, regulations
or interpretations of the Securities and Exchange Commission in effect at the
time of such remarketing of the Notes. For the purposes of Section 7 of the
attached Purchase Agreement, amounts paid by the Remarketing Underwriter shall
be deemed the "aggregate public offering price".
All capitalized terms not otherwise defined in this Agreement have the
respective meanings assigned thereto in the Notes, the form of which is attached
hereto.
Company Health and Retirement Properties Trust
Remarketing Underwriter and Address: Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx World Headquarters
World Financial Center
Xxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Title of Notes: Remarketed Reset Notes Due July 9, 2007
Principal Amount of Notes
to be Purchased: The aggregate principal amount of
all Notes tendered for resale on
the Tender Date
Title of Indenture: Indenture dated as of July 9, 1997 and
Supplemental Indenture dated as of
July 9, 1997, both by and between the
Company and the Trustee
Trustee: State Street Bank and Trust Company
Current Ratings: Xxxxx'x Investors Service, Inc.: Baa2;
Standard & Poor's Ratings Services: BBB;
Fitch Investors Service, L.P.: BBB+
Certain Terms of the Notes:
Maturity: July 9, 2007
Spread Determination Date:
Duration/Mode Determination Date:
Tender Notice Date:
Interest Reset Dates:
Tender Date:
New Interest Rate: As determined by application of the
provisions set forth in the attached
form of the Notes on the LIBOR
Determination Date or the Fixed Rate
Determination Date, as applicable
Spread: [Plus/Minus] ______ basis points
2
Interest Payment Dates: [October 9], [January 9], [April 9]
and/or [July 9]
Subsequent Spread Period:
Redemption Provisions: Redeemable as set forth in the attached
Prospectus Supplement dated July 2, 1997
Beneficial Owner Tender Provisions: As set forth in the attached
Prospectus Supplement dated July 2,
1997. In the event that the
Remarketing Underwriter fails to
purchase all Notes validly tendered
for purchase on the Tender Date,
then the Remarketing Underwriter
shall promptly notify the Company
and the Trustee of such failure.
Shorter Subsequent Spread Period: In the event that (A) the
Remarketing Underwriter fails to
purchase all Notes validly tendered
for purchase on the Tender Date for
any reason, and (B) the Company has
not given notice of redemption of
all of the Notes then outstanding
in accordance with the provisions
described in the attached form of
the Notes, then the Subsequent
Spread Period shall be a period of
one year, which Subsequent Spread
Period shall be deemed to have
commenced upon the Commencement
Date that coincides with the Tender
Date.
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Legal Opinion: The opinion required to be
delivered pursuant to Section
5(b)(1)(xix) of the attached
Purchase Agreement shall be
modified to read as follows "(xix)
the Notes have been duly
authorized; a single global Note
registered in the name of CEDE &
Co., a nominee of The Depository
Trust Company ("DTC"), has been
duly authenticated in accordance
with the provisions of the
Indenture, paid for and delivered
to DTC, and constitutes a valid and
binding obligation of the Company;
and the Underwriter will acquire
the rights of a bona fide purchaser
(as such terms are defined in the
Uniform Commercial Code as in
effect in the State of New York
(the "UCC")) in any portion of the
Notes transferred to the
Underwriter by a prior owner
thereof as recorded on the books of
DTC, provided that (i) the portion
of the Notes transferred is an
authorized denomination of the
Notes, (ii) the transfer is
recorded on the books of DTC by a
debit to the transferor's account
with DTC and a credit to the
Underwriter's account with DTC,
(iii) the Underwriter makes payment
to such transferor of value for
such transfer and (iv) the
Underwriter purchases such interest
in good faith and without notice of
any adverse claim, within the
meaning of the UCC.
The opinion required to be
delivered pursuant to Section
5(b)(1)(xix) of the attached
Purchase Agreement may be delivered
by any counsel designated by the
Remarketing Underwriter and
reasonably acceptable to the
Company.
Form of Notes: Global certificate registered in
the name of the nominee, which
currently is CEDE & Co., of the
depository of the Notes, which is
DTC. The beneficial owners of the
Notes ("Beneficial Owners") are not
entitled to receive definitive
certificates representing their
Notes, except under limited
circumstances. A Beneficial Owner's
ownership of a Note currently is
recorded on or through the records
of the brokerage firm or other
entity that is a participant in DTC
and that maintains such Beneficial
Owner's account.
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Purchase Price: 100% of the principal amount of the
Notes. Payable to DTC for the
Beneficial Owners of Tendered Notes.
Remarketing Fee: 0.075% of the principal amount of
the Notes outstanding on each
Tender Date multiplied by the
number of years remaining in the
Stated Maturity.
Closing: Xxxxx & Xxxx LLP, Xxx Xxxxx Xxxxx
Xxxxxx, Xxx Xxxx, X.X. 00000, at
9:00 a.m., New York City time, on
the Tender Date.
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The foregoing terms are hereby confirmed and agreed to as of this ____ day
of ____________.
HEALTH AND RETIREMENT PROPERTIES TRUST
By: _________________________________
Name:
Title:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: ________________________________
Name:
Title:
