SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): March 20, 1997
HEALTH AND RETIREMENT PROPERTIES TRUST
(Exact name of registrant as specified in charter)
Maryland 1-9317 04-6558834
(State or other (Commission file (IRS employer
jurisdiction of number) identification no.)
incorporation)
400 Centre Street, Newton, Massachusetts 02158
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: 617-332-3990
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Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits.
(c) Exhibits.
10.1 Second Amendment and Waiver, dated as of March 19, 1997, to
Third Amended and Restated Revolving Loan Agreement, dated as
of March 15, 1996, among Health and Retirement Properties
Trust, as borrower, the lenders named therein, Dresdner
Kleinwort Benson North American LLC (as successor to Kleinwort
Benson Limited), as agent, Wells Fargo Bank, National
Assocation, as administrative agent, Fleet National Bank (as
successor to Fleet Bank of Massachusetts), as co-agent, et al.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
HEALTH AND RETIREMENT PROPERTIES TRUST
By: /s/David J. Hegarty
David J. Hegarty
President and Chief Operating Officer
Date: March 20, 1997
HEALTH AND RETIREMENT PROPERTIES TRUST
SECOND AMENDMENT AND WAIVER TO
THIRD AMENDED AND RESTATED REVOLVING LOAN AGREEMENT
DATED AS OF MARCH 19, 1997
This SECOND AMENDMENT AND WAIVER (this "Amendment") is dated
as of March 19, 1997 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"),
DRESDNER KLEINWORT BENSON NORTH AMERICA LLC (as successor to Kleinwort Benson
Limited), a limited liablity company organized under the laws of Delaware, as
agent for itself and the other Lenders (in such capacity, together with any
successor in such capacity in accordance with the terms of the Loan Agreement,
"Administrative Agent"), WELLS 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 NATIONAL BANK (as successor to Fleet Bank of Massachusetts) a bank
organized under the laws of the United States of America, 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 by a
First Amendment dated as of December 15, 1996 (as amended to date and from time
to time hereafter, 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 Trust"), each being a direct wholly-owned Subsidiary of Borrower.
Capitalized 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
acquire indirectly substantially all of the assets of Government Property
Investors, Inc. which acquisition will be achieved through (a) a contribution of
such assets to Government Property Holdings Trust, a wholly-owned Subsidiary of
Government Property Investors, Inc. and (b) the merger of Government Property
Holdings Trust with and into Hub Acquisition Trust, a wholly-owned Subsidiary of
Borrower and in connection therewith requests a waiver of certain terms of the
Loan Agreement and wishes to amend certain terms of the Loan Agreement;
WHEREAS, subject to the terms set forth herein, Lenders have
agreed to waive and amend the Loan Agreement.
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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 definitions:
"Government Agency" means the federal government of
the United States of America or any instrumentality
or agency thereof the obligations of which, under the
relevant Lease of a Government Property Asset, are
backed by the full faith and credit of the United
States of America.
"Government Investors" means Government Property
Investors, Inc., a Delaware corporation.
"Government Properties" means Government Property
Holdings Trust, a Maryland real estate investment
trust and wholly-owned Subsidiary of Government
Investors.
"Government Properties Assumed Indebtedness" means
the Indebtedness existing pursuant to the following
documents, (i) the Project Note dated February 15,
1995 in the original principal amount of $15,425,000
issued by Rosecliff Realty Richland Inc., a
wholly-owned Subsidiary of Government Properties,
(ii) the Project Note dated March 6, 1996 in the
original principal amount of $20,250,000 issued by
Rosecliff San Diego, Inc., a wholly-owned Subsidiary
of Government Properties, and (iii) the Amended and
Restated Lease Agreement dated as March 1, 1996
between the Erie County Industrial Development
Revenue Bond (1993 Federal Center Project) issued by
such agency in the original principal amount of
$13,043,570.43, as each such document has been
amended to date and may be further amended from time
to time hereafter by amendments that do not
materially prejudice the interests of the Lenders
hereunder.
"Government Property Asset" means a Property which is
leased or subleased to a Government Agency by
Borrower or any of its Subsidiaries for use as
offices or for other administrative purposes.
"Hub" means Hub Acquisition Trust, a Maryland real
estate investment trust and wholly-owned Subsidiary
of Borrower.
(b) Section 1.1 of the Loan Agreement is hereby amended by the
amendment and restatement of the definitions of "Adjusted Net Operating Cash
Flow," "Eligible Property," "Facility," "Final Borrowing Date," "Notional
Interest Cover Ratio," "Primary Operator/Mortgagor" and "Termination Date" as
follows:
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"Adjusted Net Operating Cash Flow" means, in respect
of a Property that is a Medical Office Asset, a
Clinic or a Government Property Asset, the net result
of (i) aggregate lease payments made by the
Operator(s) of the relevant Property during the
relevant period of determination, less (ii) direct
costs of the Borrower or its subsidiaries
attributable to such Property for such period,
provided that if either (x) an Operator of the
relevant Property has failed to exercise a renewal
option under the Lease thereof prior to the
expiration of that option (and no replacement Lease
with that or another Operator has been signed), or
(y) an Operator of the relevant Property is in
default under any payment obligation or in any
material respect under any other Contractual
Obligation between such Operator and Borrower or any
of its Subsidiaries, including without limitation
such Lease, any other Lease or any Mortgage Interest
Agreement, or (z) a Credit Support Obligor for the
Lease of such Property is in default under any
payment obligation or in any material respect under
any other Contractual Obligation of such Credit
Support Obligor to Borrower or any of its
Subsidiaries, including without limitation any Lease,
Mortgage Interest, Mortgage Interest Agreement or
Credit Support Agreement, the lease payments made by
the Operator referred t in the preceding clause (x)
or (y) and the lease payments made in respect of the
Property referred to in the preceding clause (z)
during the relevant period of determination shall not
be included in Adjusted Net Operating Cash Flow.
"Eligible Property" means each Property which is
leased or subleased to an Operator, provided (i) the
requirements of Section 2.16 in respect of such
Property are met, (ii) except in the case of
Properties consisting of Medical Office Assets,
Clinics or Government Property Assets, it is not a
Property the Operator of which has failed to exercise
any renewal option under the Lease thereof prior to
the expiration of the option (and no replacement
Lease with that or another Operator has been signed),
(iii) except in the case of Properties consisting of
Medical Office Assets, Clinics or Government Property
Assets, such Operator is not in default under any
payment obligation or in any material respect under
any other Contractual Obligation between such
Operator and Borrower or nay of its Subsidiaries,
including without limitation such Lease, any other
Lease or any Mortgage Interest Agreement, (iv) except
in the case of Properties consisting of Medical
Office Assets, Clinics or Government Property Assets,
there has been no Cash Flow Event with respect to
such Property, and in the case of Properties
consisting of Medical Office Assets, Clinics or
Government Property Assets, the Notional Interest
Cover Ratio is met, (v) except in the case of
Properties consisting of Medical Office Assets,
Clinics or Government Property Assets, no Credit
Support Obligor for the Lease of such Property is in
default under any payment obligation or in any
material respect under any other Contractual
Obligation of such Credit Support
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Obligor to Borrower or any of its Subsidiaries,
including without limitation any Lease, Mortgage
Interest Agreement or Credit Support Agreement, and
(vi) such Property is not subject to a Lien otherwise
permitted pursuant to Section 6.9(i) or 6.9(iv).
"Facility" means each (i) operating facility offering
health care or related services or rehabilitation or
retirement services or other healthcare related
income producing real property interest (including,
without limitation, the Fee Interests and/or
Leasehold Interests and/or Mortgage Interests
associated with such facility) in which Borrower or
any of its Subsidiaries has acquired or will acquire
an interest as owner, lessee or mortgagee, and (ii)
facility comprising office or similar administrative
type space (including, without limitation, the Fee
Interests and/or Leasehold Interests associated with
such facility) in which Borrower or any of its
Subsidiaries has acquired an interest as owner or
lessee and which facility is leased or subleased by
Borrower or any of its Subsidiaries to a Government
Agency, including without limitation, in the case of
both (i) and (ii), each Property and Mortgaged
Property.
"Final Borrowing Date" means the earlier of (i) March
15, 2000 and (ii) such dates as the Commitments shall
terminate as provided herein.
"Notional Interest Cover Ratio" means, in respect of
a (a) Property that is a Medical Office Asset, a
Clinic or a Government Property Asset, a ratio of (i)
Adjusted Net Operating Cash Flow in respect of such
Medical Office Asset, Clinic or Government Property
Asset (measured over the four most recent financial
quarters of Borrower or, if less, the number of full
financial quarters of Borrower during which the
relevant Property has been a Property and annualized
if measured over less than four financial quarters
and in the case of a Government Property Asset that
has not been a Property for a full financial quarter
then Adjusted Net Operating Cash Flow shall be
calculated after giving proforma effect to such
acquisition in a manner reasonably acceptable to the
Agent), to (ii) a notional amount of interest payable
at a rate equal at all times to the Average Cost of
Debt on a notional amount of principal equal to 80%
of the acquisition cost to Borrower of such Medical
Office Asset, Clinic or Government Property Asset as
calculated in accordance with GAAP (measured over the
four most recent financial quarters of Borrower), of
at least 1.25:1 and (b) Mortgaged Property that is a
Medical Office Asset or a Clinic, a ratio of (i)
Adjusted Net Interest in respect of such Medical
Office Asset or Clinic (measured over the four most
recent financial quarters of Borrower or, if less,
the number of full financial quarters of Borrower
during which the relevant Mortgaged Property has been
a Mortgaged Property and annualized if measured over
less than four financial quarters), to (ii) a
notional amount of interest payable at a rate equal
at
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all times to the Average Cost of Debt on a notional
amount of principal equal to 80% of the Indebtedness
secured by such Medical Office Asset or Clinic
(measured over the four most recent financial
quarters of Borrower), of at least 1.25:1.
"Primary Operator/Mortgagor" means any Operator
(other than a Government Agency) and/or Mortgagor
which is a lessee or sublessee with respect to
Facilities and/or an obligor or mortgagor with
respect to Mortgage Interests or Facilities
representing, in aggregate, 10% or more of the
aggregate Allowed Value of the Properties and
Mortgage Interests; provided that with respect to
property interests located in the United Kingdom,
every Operator and every Mortgagor shall be deemed to
be a "Primary Operator/Mortgagor."
"Termination Date" means March 15, 2001.
(c) Section 2.11 of the Loan Agreement is hereby amended
and restated as follows:
"The proceeds of the Loans hereunder shall be used by
Borrower (either directly or indirectly through
intercompany advances of such proceeds as permitted
under Section 6.8(d) to its Subsidiaries; provided
that, neither Church Creek Corporation, nor any of
Subsidiaries which are the primary obligors with
respect to the Government Properties Assumed
Indebtedness may receive any such proceeds) for (a)
the acquisition of Properties; (b) the acquisition or
funding of Mortgage Interests; (c) the direct or
indirect reimbursement of the issuing bank of the
letter of credit supporting the obligations of Church
Creek Corporation in respect of the IDFA
Indebtedness; or (d) the acquisition, pursuant to the
merger transaction described in Section 6.3(a), of
substantially all of the assets of Government
Investors; provided that the General Corporate Loans
may be used by Borrower and its Subsidiaries for
their respective general corporate purposes; provided
further that the Existing Loans may be continued for
the same purposes as they were made under the
Existing Loan Agreement, and shall not be treated as
General Corporate Loans."
(d) Section 5.15(b) of the Loan Agreement is hereby
amended by adding the following proviso at the end thereof:
"; provided that the foregoing covenant shall not
apply to the prohibitions on Liens contained in the
loan documents relating to the Government Properties
Assumed Indebtedness as of the date of the merger of
Government Properties with and into Hub and not
created in contemplation of such merger."
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(e) Section 6.3(a) of the Loan Agreement is hereby
amended and restated as follows:
"(a) Cause to be organized or assist in organizing
any Person under the laws of any jurisdiction to
acquire all or substantially all of its assets,
terminate, wind up, liquidate or dissolve its affairs
or enter into any reorganization, merger or
consolidation or, in the case of Borrower, take any
other action whatsoever under or pursuant to Articles
6.15, 8.1, 8.2 and 8.5 of the Declaration of Trust or
agree to do any of the foregoing at any future time,
except that Borrower or any Subsidiary of Borrower,
other than Church Creek Corporation or any of the
Subsidiaries of Hub which are the primary obligors
with respect to the Government Properties Assumed
Indebtedness, may acquire all or substantially all of
the assets of a Subsidiary of Borrower and any
Subsidiary of Borrower may reorganize, merge or
consolidate with Borrower (so long as Borrower is the
surviving entity) or any other Subsidiary of
Borrower, other than Church Creek Corporation or any
of the Subsidiaries of Hub which are the primary
obligers with respect to the Government Properties
Assumed Indebtedness, and Hub may enter into a merger
transaction with Government Properties whereby
Government Properties merges with and into Hub
provided that Hub is the survivor of such merger, or"
(f) Section 6.7 of the Loan Agreement is hereby amended
and restated as follows:
"6.7 Change in Nature of Business. Make any material
change in the nature of its business as presently
conducted (where a "material change" shall mean any
change in the type of industry then invested in
accordance with this Section 6.7, regardless of the
amount or size of such new investment); the business
of Borrower and its Subsidiaries as presently
conducted being the business of acquiring and
operating, and acquiring or funding Mortgage
Interests in, income producing real property
interests and facilities which offer health care or
related services or rehabilitation or retirement
services, and the business of acquiring and operating
Government Property Assets, and activities incidental
to any of the foregoing, but which shall not include
any acquisition, operating or funding either of
Psychiatric Care Assets or of hotels or other lodging
facilities; provided that (i) such property interests
and facilities shall be located in either the United
States of America or the United Kingdom, (ii) the
aggregate Allowed Value of all Properties and
Mortgage Interests located in the United Kingdom
shall not exceed 10% of the aggregate Allowed Value
of all Properties and Mortgage Interests, (iii)
Church Creek Corporation shall not engage in any
business or activities other than those engaged in by
it on the Effective Date, and activities incidental
thereto, (iv) the Subsidiaries of Hub which are the
primary obligors with respect to the Government
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Properties Assumed Indebtedness shall not engage in
any business or activities other than those engaged
in by them on the date of their acquisition by Hub,
and activities incidental thereto and (v) Borrower
may indirectly own interests in hotels or other
lodging facilities through Borrower's ownership of
shares in Hospitality Properties Trust, provided that
(y) Borrower shall not increase its equity investment
in or make any other investment in or make any loans
to, guaranties for the benefit of or other support
whatsoever to or for the benefit of Hospitality
Properties Trust aside from the aggregate of
4,000,000 shares (which shall be construed to include
any substitute or replacement shares) of stock of
Hospitality Properties Trust acquired by Borrower
prior to or in connection with the initial public
offering of shares in Hospitality Properties Trust
and (z) Hospitality Properties Trust shall not be or
become a Subsidiary of Borrower."
(g) Section 6.8(c) of the Loan Agreement is hereby
amended and restated as follows:
"(c) Suffer or permit the aggregate of Indebtedness
which is (i) secured by a Lien covering property or
assets acquired by Borrower or any of its
Subsidiaries, (ii) Indebtedness of a Person acquired
by Borrower or any of its Subsidiaries or (iii)
Indebtedness to which the assets of a Person acquired
by Borrower or any of its Subsidiaries are subject,
which in the case of any of clause (i), (ii) or (iii)
is outstanding at the time of the relevant
acquisition and remains outstanding following such
acquisition, to exceed $50,000,000 at any time;
provided that, in addition to Indebtedness otherwise
permitted under this Section 6.8(c), (x) Borrower and
Church Creek Corporation may suffer or permit to
exist the IDFA Indebtedness and (y) Hub and certain
of its Subsidiaries may suffer or permit to exist the
Government Properties Assumed Indebtedness which in
any event shall not exceed $47,000,000."
(h) Section 6.8(d) of the Loan Agreement is hereby
amended and restated as follows:
"(d) In the case of Subsidiaries of Borrower, suffer
or permit to exist any Indebtedness, except for (i)
intercompany Indebtedness owed to Borrower which is
incurred as the result of the direct or indirect
advance by Borrower of the proceeds of Loans and for
purposes described in Section 2.11, (ii) in the case
of Subsidiaries other than Church Creek Corporation,
the Contingent Obligations arising from the
guarantees given under Section 9, (iii) in the case
of Church Creek Corporation, the IDFA Indebtedness
and (iv) in the case of Hub and certain of its
Subsidiaries, the Government Properties Assumed
Indebtedness which in any event shall not exceed
$47,000,000."
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(i) Section 7.1 of the Loan Agreement is hereby amended by the
additional of the word "or" at the end of clause (u) thereof and the addition of
the following clause (v) thereafter:
"(v) Government Property Assets. More than 40% of the
aggregate Allowed Value of the Properties and
Mortgage Interests shall be attributable to
Government Property Assets";
2. Waivers of Lenders
(a) The Lenders hereby waive the requirement of Section 2.8(c)
solely to the extent it requires prepayment of the Loans from the Net Securities
Proceeds of the issuance by Borrower of its Common Shares for an aggregate
consideration of up to $82,000,000 to Government Investors as part of the
consideration for the acquisition of substantially all of the assets of
Government Investors.
(b) Provided that Hub and its Subsidiaries comply with the
terms of Sections 6.8(c) and 6.8(d), the Lenders hereby waive the requirement of
Section 6.5(a)(ii)(B) of the Loan Agreement solely to the extent it prohibits
Hub and its Subsidiaries from having any Indebtedness other than to Borrower or
another wholly-owned Subsidiary of Borrower.
(c) Provided that Hub is formed solely for the purpose of
acquiring substantially all of the assets of Government Investors, the Lenders
hereby waive the requirement of Section 6.5(a)(ii)(D) solely to the extent it
requires Hub and its Subsidiaries to be formed in the ordinary course of
Borrower's business.
3. Covenant of Borrower
Borrower hereby covenants to cause Hub and each of its
Subsidiaries (other than the Subsidiaries which are the primary obligors with
respect to the Government Properties Assumed Indebtedness) to become Guarantors
under the Loan Agreement by executing and delivering to Agent (with sufficient
originally executed copies for each Lender) a document in the form of Exhibit A
hereto within five Business Days of the merger of Hub and Government Properties.
The parties hereto agree that any default in the observance or performance of
this Section 3 shall constitute an Event of Default under Section 7.1(c) of the
Loan Agreement.
4. Conditions to Effectiveness
Section 1 of this Amendment shall become effective only upon
the prior or concurrent satisfaction of the conditions that Borrower shall (i)
deliver to Agent for Lenders (with sufficient originally executed copies of each
Lender) executed copies of this Amendment, executed by Borrower, Retirement
Properties, Causeway, SJO, Agent, Co-Agent and the Majority Lenders and (ii)
pay an amendment fee to Administrative Agent for the account of each Lender, in
accordance with its Pro Rata Share of the Commitments, in an amount equal to
0.10% of the Commitments.
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5. Representations and Warrants
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 deliver 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 (i) do not violate any Requirement of Law or Contractual Obligation
of Borrower, (ii) 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 and (iii) do not require the consent of
any third party.
(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 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) After giving effect to this Amendment, no event has
occurred and is continuing or will result from the consummation of 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 3, 1997, 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.
6. Guarantors' Acknowledgment and Consent
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Each of Retirement Properties, Causeway, SJO and Hub Trust
(each a "Subsidiary Guarantor") has guaranteed 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 payment 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.
7. 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.
8. Fees and Expenses. Borrower agrees to pay to Agent on demand 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.
9. 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.
10. 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.
11. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
12. 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
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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.
13. Acknowledgment. Borrower acknowledges that there are no existing
claims, defenses, personal or otherwise, or rights of set off whatsoever with
respect to the Amended Agreement or any of the other Loan Documents.
14. NONLIABILITY 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 "HEALTH AND
RETIREMENT PROPERTIES TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION
COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO
TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF BORROWER SHALL BE HELD TO
ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM
AGAINST, BORROWER. ALL PERSONS DEALING WITH BORROWER, IN ANY WAY, SHALL LOOK
ONLY TO THE ASSETS OF BORROWER FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF
ANY OBLIGATION.
[Remainder of this page intentionally left blank]
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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.
HEALTH AND RETIREMENT
PROPERTIES TRUST
By:/s/ Ajay Saini
Name: Ajay Saini
Title:Treasurer
DRESDNER KLEINWORT BENSON
NORTH AMERICA LLC, as Agent
By: /s/ Patrick F. Donelan
Name: Patrick F. Donelan
Title: Director
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Administrative
Agent and as a Lender
By: /s/ David Hollingworth
Name: David Hollingworth
Title: Vice President
FLEET NATIONAL BANK (successor to
Fleet Bank of Massachusetts) as Co-
Agent and as a Lender
By: /s/ Ginger Stolzenthaler
Name: Ginger Stolzenthaler
Title: Vice President
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THE SUMITOMO BANK, LIMITED,
Chicago Branch, as a Lender
By: /s/ Daniel G. Eastman
Name: Daniel G. Eastman
Title: Vice President & Manager
By: /s/ Alfred DeGemmis
Name: Alfred DeGemmis
Title: Vice President
MITSUI LEASING (USA) INC., as a Lender
By: /s/ Yuichi Kamizawa
Name: Yuichi Kamizawa
Title: Vice President
DRESDNER BANK AG, New York Branch
and Grand Cayman Branch, as a Lender
By: /s/ Andrew P. Nesi
Name: Andrew P. Nesi
Title: Vice President
By: /s/ B. Craig Erickson
Name: B. Craig Erickson
Title: Vice President
Title:______________________________
CREDIT LYONNAIS, Cayman Island Branch,
as a Lender
By: /s/ Farboud Tavanger
Name: Farboud Tavanger
Title: Authorized Signature
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BANK OF MONTREAL, as a Lender
By: /s/ Jeffrey T. Forsythe
Name: Jeffrey T. Forsythe
Title: Vice President
RUGGS BANK N.A., as a Lender
By: /s/ Craig Havard
Name: Craig Havard
Title: Vice President
VIA BANQUE, as a Lender
By: /s/ Tom Piper
Name: Tom Piper
Title: Directeur
By: /s/ P. Arnoult
Name: P. Arnoult
Title: Directeur
DG BANK, Deutsche
GenossenschaftsBank, as a Lender
By: /s/ Linda J. O'Connel
Name: Linda J. O'Connel
Title: Vice President
By: /s/ Karen A. Denkmann
Name:Karen A. Denkmann
Title: Vice President
KEYBANK NATIONAL
ASSOCIATION (formerly Society
National Bank), as a Lender
By: /s/ Angela Mago
Name: Angela Mago
Title: Vice President
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