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): February 19, 1998
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
<PAGE>
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits.
(c) Exhibits.
1.1 Supplemental Purchase Agreement dated February 18, 1998
between Health and Retirement Properties Trust and Merril
Lynch & Co. pertaining to $50,000,000 in principal amount of
Remarketed Reset Notes Due July 9, 2007.
4.1 Form of Supplemental Indenture dated as of February 23 , 1998
between Health and Retirement Properties Trust and State
Street Bank and Trust Company pertaining to $50,000,000 in
principal amount of Remarketed Reset Notes Due July 9, 2007.
<PAGE>
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/ Ajay Saini
Ajay Saini
Treasurer and Chief Financial Officer
Date: February 19, 1998
EXHIBIT 1.1
HEALTH AND RETIREMENT PROPERTIES TRUST
(a Maryland real estate investment trust)
SUPPLEMENTAL PURCHASE AGREEMENT
February 18, 1998
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower, 26th Floor
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Health and Retirement Properties Trust, a Maryland real estate
investment trust (the "Company"), confirms its agreement with you with respect
to the sale by the Company and the purchase by you of an additional $50,000,000
in aggregate principal amount (the "Additional Securities") of the Company's
Remarketed Reset Notes due July 9, 2007 (the "Securities") set forth in Schedule
I to the Purchase Agreement, dated July 2, 1997, between the Company and you
(the "Purchase Agreement"). The Additional Securities are of the same series as
the Securities and are referred to in the Supplemental Schedule I hereto. All
provisions of the Purchase Agreement and the Remarketing Agreement, dated July
2, 1997, between the Company and you, apply to the Additional Securities, except
as otherwise provided herein, and all references therein to the "Securities" or
the "Notes" shall include the Additional Securities. The Officers' Certificate
to be delivered pursuant to clause (c) of Section 5(d) of the Purchase Agreement
shall refer to the representations and warranties set forth below.
As of the date hereof, the Company represents and warrants to you as of
the date hereof as follows:
1. At the time the Registration Statement became effective,
the Registration Statement complied in all material respects with the
requirements of the 1933 Act and
<PAGE>
the rules and regulations under the 1933 Act (the "1933 Act
Regulations") and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The
Prospectus, at the date hereof (unless the term "Prospectus" refers to
a prospectus which has been provided to you by the Company for use in
connection with the offering of the Securities which differs from the
Prospectus on file at the Commission at the date of effectiveness of
the Registration Statement, in which case at the time it is first
provided to you for such use) and at the Closing Time referred to in
Section 2 hereof, does not and will not include an untrue statement of
a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
representations and warranties in this subsection (i) shall not apply
to those parts of the Registration Statement or the Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by you expressly for use in the Registration
Statement or the Prospectus.
2. The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are
filed with the Commission, complied and will comply in all material
respects with the requirements of the 1934 Act and the rules and
regulations of the Commission under the 1934 Act (the "1934 Act
Regulations"), and, when read together with the other information in
the Prospectus, at the time the Registration Statement became effective
and at Closing Time, did not and will not include an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
3. The Company is a Maryland real estate investment trust duly
organized, validly existing and in good standing under the laws of the
State of Maryland. Each of its subsidiaries has been duly organized and
is validly existing as a corporation or trust in good standing under
the laws of its jurisdiction of incorporation or organization. Each of
the Company and its subsidiaries has full power and authority
(corporate and other) to carry on its business as described in the
Registration Statement and in the Prospectus and to own, lease and
operate its properties.
2
<PAGE>
Each of the Company and its subsidiaries is duly qualified and is in
good standing as a foreign corporation or trust, as the case may be,
and is authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of property requires
such qualification, except where the failure to be so qualified would
not have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
4. The financial statements of the Company and its
subsidiaries and, to the Actual Knowledge of the Company (as defined in
paragraph (xii) of this Section 1(a)), of Marriott International, Inc.
(the "Operator") and Government Properties Investors, Inc. ("GPI") and
its consolidated subsidiaries, together with the related schedules and
notes thereto, included or incorporated by reference in the
Registration Statement and in the Prospectus, comply as to form in all
material respects with the requirements of the 1933 Act. Such financial
statements of the Company and, to the Actual Knowledge of the Company,
of the Operator and GPI, together with the related schedules and notes
thereto, present fairly the consolidated financial position, results of
operations, shareholders' equity and changes in financial position of
the foregoing entities at the respective dates or for the respective
periods therein specified and have been prepared in accordance with
generally accepted accounting principles ("GAAP") consistently applied
throughout the periods involved. The pro forma financial statements and
other pro forma financial information (including the notes thereto)
included or incorporated by reference in the Registration Statement and
in the Prospectus (i) present fairly the information shown therein,
(ii) have been prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements and (iii)
have been properly compiled on the basis described therein and the
assumptions used in the preparation of such pro forma financial
statements and other pro forma financial information (including the
notes thereto) are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances
referred to therein. The adjusted pro forma financial statements and
other adjusted pro forma financial information (including the notes
thereto) included or incorporated by reference in the Registration
Statement and in the Prospectus (i) present fairly the information
shown therein and (ii) have been properly compiled on the basis
described therein and the assumptions used in the preparation of such
adjusted pro forma financial statements
3
<PAGE>
and other adjusted pro forma financial information (including the notes
thereto) are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances
referred to therein.
5. The accountants who have certified the financial statements
of the Company and its subsidiaries and, to the Actual Knowledge of the
Company, of the Operator and its subsidiaries and of GPI and its
subsidiaries, included or incorporated by reference in the Registration
Statement and in the Prospectus are independent certified accountants
as required by the 1933 Act. The statements included in or incorporated
by reference in the Registration Statement and in the Prospectus with
respect to such accountants pursuant to Rule 509 of Regulation S-K
under the 1933 Act are true and correct in all material respects.
6. The Indenture has been duly qualified under the Trust
Indenture Act of 1939 (the "1939 Act") and has been duly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company enforceable in accordance with its terms,
except as limited by (a) the effect of bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws
relating to or affecting the rights or remedies of creditors or (b) the
effect of general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law.)
7. All of the issued and outstanding indebtedness of the
Company is duly and validly authorized and issued; the Securities have
been authorized by all necessary trust action and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered and paid for pursuant to this Agreement, will be valid and
binding obligations of the Company enforceable in accordance with their
terms, except as limited by (a) the effect of bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws
relating to or affecting the rights or remedies of creditors or (b) the
effect of general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
8. The Securities and the Indenture conform to the
descriptions thereof in the Registration Statement and in the
Prospectus.
4
<PAGE>
9. Since the respective dates as of which information is given
in the Prospectus, and except as otherwise disclosed therein, (i) there
has been no material adverse change in the business, operations,
earnings, prospects, properties or condition (financial or otherwise)
of the Company and its subsidiaries, taken as a whole, or, to the
Actual Knowledge of the Company, of the Advisor (as defined in
paragraph (xii) of this Section 1(a)), in any case whether or not
arising in the ordinary course of business, (ii) there have been no
material transactions entered into by the Company and its subsidiaries,
on a consolidated basis, other than transactions in the ordinary course
of business, (iii) neither the Company nor its subsidiaries has
incurred any material liabilities or obligations, direct or contingent,
(iv) the Company and its subsidiaries, on a consolidated basis, have
not, (A) other than regular quarterly dividends, declared, paid or made
a dividend or distribution of any kind on any class of its shares of
beneficial interest (other than dividends or distributions from wholly
owned subsidiaries to the Company), (B) issued any shares of beneficial
interest of the Company or any of its subsidiaries or any options,
warrants, convertible securities or other rights to purchase the shares
of beneficial interest of the Company or any of its subsidiaries (other
than the issuance of common shares of beneficial interest ("Common
Shares") upon conversion of certain convertible debentures of the
Company or Common Shares to Nike Securities L.P. for deposit in a unit
investment trust for which it acts as sponsor) or (C) repurchased or
redeemed shares of beneficial interest, and (v) there has not been (A)
any material decrease in the Company's net worth or (B) any material
increase in the short-term or long-term debt (including capitalized
lease obligations but excluding borrowings under existing bank lines of
credit) of the Company and its subsidiaries, on a consolidated basis.
10. The Company and each of its subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability; (iii) access
to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets
is compared with the existing
5
<PAGE>
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
11. Except as otherwise disclosed in the Prospectus, neither
the Company nor any of its subsidiaries nor, to the Actual Knowledge of
the Company, the Advisor, is in violation of its respective charter or
by-laws or other organizational documents or in default in the
performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any
other agreement, indenture or instrument to which the Company or any of
its subsidiaries or, to the Actual Knowledge of the Company, the
Advisor, is a party or by which any of their respective properties or
assets may be bound or affected, except for any such violation that
would not have a material adverse effect on the condition, financial or
otherwise or in the respective earnings, business affairs or business
prospects of the Company and its subsidiaries, taken as a whole.
Neither the Company nor, to the Actual Knowledge of the Company, the
Advisor, is in violation of any law, ordinance, governmental rule or
regulation or court decree to which it is subject, except for any such
violations that would not, individually or in the aggregate, have a
material adverse effect on the business, operations, earnings,
prospects, properties or condition (financial or otherwise) of any of
the Company and its subsidiaries, taken as a whole.
12. Except as disclosed in the Registration Statement or in
the Prospectus, there is not now pending or, to the knowledge of the
Company, threatened, any litigation, action, suit or proceeding to
which the Company or, to the actual knowledge of the Company (including
without limitation, for purposes of this Agreement, its managing
trustees) without independent inquiry (the "Actual Knowledge of the
Company"), REIT Management & Research, Inc. (the "Advisor"), is or will
be a party before or by any court or governmental agency or body, which
(A) might result in any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company or (B) might materially and adversely
affect the property or assets of the Company or (C) concerns the
Company or, to the Actual Knowledge of the Company, the Advisor, and is
required to be disclosed in the Prospectus, or (D) could adversely
affect the consummation of this Agreement and the issuance, purchase
and sale of the Securities. No contract or other document is required
to be described in the Registration Statement or in the Prospectus
6
<PAGE>
or to be filed as an exhibit to the Registration Statement that is not
described therein or filed as required.
13. The execution, delivery and performance by the Company of
this Agreement, the issuance, offering and sale by the Company of the
Securities as contemplated by the Registration Statement and by the
Prospectus and the consummation of the transactions contemplated hereby
and compliance with the terms and provisions hereof, will not violate
or conflict with or constitute a breach of any of the terms or
provisions of, or a default under, (i) the Amended and Restated
Declaration of Trust (the "Declaration of Trust") or the By-laws of the
Company or the charter or by-laws or other organizational documents of
any subsidiaries of the Company or, to the Actual Knowledge of the
Company, the respective charter or by-laws or other organizational
documents of the Advisor, or (ii) except as disclosed in the
Prospectus, any agreement, indenture or other instrument to which the
Company or any of its subsidiaries or, to the Actual Knowledge of the
Company, the Advisor, is a party or by which the Company or any of its
subsidiaries or, to the Actual Knowledge of the Company, the Advisor or
their respective properties or assets is bound, or (iii) any laws,
administrative regulations or rulings or decrees to which the Company
or any of its subsidiaries or, to the Actual Knowledge of the Company,
the Advisor or their respective properties or assets may be subject.
14. No consent, approval, authorization, order, registration,
filing, qualification, license or permit of or with any court or any
public, governmental or regulatory agency or body having jurisdiction
over the Company or any of its subsidiaries or any of their respective
properties or assets is required for the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby, including, without limitation, the issuance, sale
and delivery of the Securities pursuant to this Agreement, except such
as have been obtained and such as may be required under foreign and
state securities or "Blue Sky" laws.
15. Except as otherwise disclosed in the Registration
Statement and in the Prospectus, the Company and each of its
subsidiaries has good and marketable title or ground leases, free and
clear of all liens, claims, encumbrances and restrictions, except liens
for taxes not yet due and payable and other liens and encumbrances
which do not, either individually or in the aggregate, materially and
adversely
7
<PAGE>
affect the current use or value thereof, to all property and assets
described in the Registration Statement and in the Prospectus as being
owned by them. Except as otherwise set forth in the Registration
Statement or in the Prospectus, all leases to which the Company and
each of its subsidiaries is a party relating to real property, and all
other leases which are material to the business of the Company and its
subsidiaries, taken as a whole, are valid and binding, and no default
(to the Company's knowledge, in the case of leases to which the Company
is a party as lessor, that would, individually or in the aggregate,
have a material adverse effect on the business, operations, earnings,
prospects, properties or condition (financial or otherwise) of the
Company and its subsidiaries, taken as a whole) has occurred and is
continuing thereunder, and the Company and each of its subsidiaries
enjoys peaceful and undisturbed possession under all such leases to
which it is a party as lessee. With respect to all properties owned or
leased by the Company and each of its subsidiaries, the Company or such
subsidiary has such documents, instruments, certificates, opinions and
assurances, including without limitation, fee, leasehold owners or
mortgage title insurance policies (disclosing no encumbrances or title
exceptions which are material to the Company and its subsidiaries
considered as a whole, except as otherwise set forth in the
Registration Statement and in the Prospectus), legal opinions and
property insurance policies in each case in form and substance as are
usual and customary in transactions involving the purchase of similar
real estate and are appropriate for the Company or such subsidiary to
have obtained.
16. The Company and each of its subsidiaries owns, or
possesses adequate rights to use, all patents, trademarks, trade names,
service marks, copyrights, licenses and other rights necessary for the
conduct of their respective businesses as described in the Registration
Statement and in the Prospectus, and neither the Company nor any of its
subsidiaries has received any notice of conflict with, or infringement
of, the asserted rights of others with respect to any such patents,
trademarks, trade names, service marks, copyrights, licenses and other
such rights (other than conflicts or infringements that, if proven,
would not have a material adverse effect on the business, operations,
earnings, prospects, properties or condition (financial or otherwise)
of the Company and its subsidiaries, taken as a whole), and neither the
Company nor any of its subsidiaries knows of any basis therefor.
8
<PAGE>
17. All material tax returns required to be filed by the
Company and each of its subsidiaries in any jurisdiction have been
timely filed, other than those filings being contested in good faith,
and all material taxes, including withholding taxes, penalties and
interest, assessments, fees and other charges due pursuant to such
returns or pursuant to any assessment received by the Company or any of
its subsidiaries have been paid, other than those being contested in
good faith and for which adequate reserves have been provided.
18. Except for those matters which in the aggregate do not
have a material adverse effect on the business, operations, earnings,
prospects, properties or condition (financial or otherwise) of the
Company and its subsidiaries taken as a whole, and except for Hazardous
Materials (as defined below) or substances which are handled and/or
disposed of in compliance with all applicable federal, state and local
requirements, to the Company's knowledge, after due investigation, the
real property owned, leased or otherwise operated by the Company and
each of its subsidiaries in connection with the operation of their
respective businesses, including, without limitation, any subsurface
soils and ground water (the "Realty"), is free of contamination from
any Hazardous Materials. To the Company's knowledge, after due
investigation, the Realty does not contain any underground storage or
treatment tanks, active or abandoned water, gas or oil wells, or any
other underground improvements or structures, other than the
foundations, footings, or other supports for the improvements located
thereon which, based on present knowledge, could, in their present
condition, reasonably be expected to presently cause a material
detriment to or materially impair the beneficial use thereof by the
Company or constitute or cause a significant health, safety or other
environmental hazard to occupants or users thereof without regard to
any special conditions of such occupants or users. The Company
represents that, after due investigation, it has no knowledge of any
material violation, with respect to the Realty, of any Environmental
Law, or of any material liability on the part of the Company with
respect to the Realty, resulting from the presence, use, release,
threatened release, emission, disposal, pumping, discharge, generation
or processing of any Hazardous Materials. As used herein,
"Environmental Law" means any federal, state or local statute,
regulation, judgment, order or authorization relating to emissions,
discharges, releases or threatened releases of Hazardous Materials into
ambient air, surface
9
<PAGE>
water, ground water, publicly-owned treatment works, septic systems or
land, or otherwise relating to the pollution or protection of public
health or the environment, and "Hazardous Materials" means any
substance, material or waste which is regulated by any federal, state
or local government or quasi-government authority, which is defined,
used or listed as a "hazardous waste", "hazardous substance", "toxic
substance", "medical waste", "infectious waste" or other similar terms
as defined or used in any Environmental Law, or any petroleum products,
asbestos, lead-based paint, polychlorinated biphenyls, flammable
explosives or radioactive materials.
19. Each of the Company, its subsidiaries and, to the Actual
Knowledge of the Company, the Advisor, has such permits, licenses,
franchises and authorizations of governmental or regulatory authorities
(together, "permits"), including, without limitation, under any
applicable Environmental Law, as are necessary to own, lease and
operate its properties and to engage in the business currently
conducted by it, except such licenses and permits as to which the
failure to own or possess will not in the aggregate have a material
adverse effect on the business, operations, earnings, prospects,
properties or condition (financial or otherwise) of the Company, and
neither the Company nor, to the Actual Knowledge of the Company, the
Advisor, has any reason to believe that any governmental body or agency
is considering limiting, suspending or revoking any such license,
certificate, permit, authorization, approval, franchise or right; each
of the Company, its subsidiaries and, to the Actual Knowledge of the
Company, the Advisor, has fulfilled and performed all of its
obligations with respect to such permits and no event has occurred
which allows, or after notice or lapse of time would allow, revocation
or termination thereof or results in any other material impairment of
the rights of the holder of any such permit; and, except as described
in the Registration Statement and in the Prospectus, such permits
contain no restrictions that are materially burdensome to the Company
or any of its subsidiaries.
20. To the knowledge of the Company, no labor problem exists
or is imminent with employees of the Company or any of its subsidiaries
that could have a material adverse effect on the business, operations,
earnings, prospects, properties or condition (financial or otherwise)
of the Company and its subsidiaries, taken as a whole.
10
<PAGE>
21. Neither the Company nor any of its subsidiaries nor, to
the knowledge of the Company, any officer, trustee or director
purporting to act on behalf of the Company or any of its subsidiaries,
has at any time: (i) made any contributions to any candidate for
political office, or failed to disclose fully any such contributions,
in violation of law; (ii) made any payment of funds to, or received or
retained any funds from, any state, federal or foreign governmental
officer or official, or other person charged with similar public or
quasi-public duties, other than payments required or allowed by
applicable law; or (iii) engaged in any transactions, maintained any
bank accounts or used any corporate funds except for transactions, bank
accounts and funds, which have been and are reflected in the normally
maintained books and records of the Company and its subsidiaries.
22. All of the outstanding shares of beneficial interest of,
or other ownership interests in, each of the Company's subsidiaries
have been duly authorized and validly issued and are fully paid and
nonassessable, and, except as disclosed in the Registration Statement
and in the Prospectus, are or will be owned by the Company free and
clear of any security interest, claim, lien, encumbrance or adverse
interest of any nature.
23. Except, as referred to or described in the Registration
Statement and in the Prospectus, none of the subsidiaries of the
Company owns any shares of stock or any other securities of any
corporation or has any equity interest in any firm, partnership,
association or other entity other than the issued capital shares of its
subsidiaries, and the Company does not own, directly or indirectly, any
shares of stock or any other securities of any corporation or have any
equity interest in any firm, partnership, association or other entity
other than the issued capital shares of its subsidiaries, except in
each case for non-controlling positions acquired in the ordinary course
of business.
24. Except as disclosed in the Registration Statement and in
the Prospectus, there are no material outstanding loans or advances or
material guarantees of indebtedness by the Company or any of its
subsidiaries to or for the benefit of any of the officers, trustees or
directors of the Company or any of its subsidiaries or any of the
members of the families of any of them.
11
<PAGE>
25. The Company and each of its subsidiaries maintains
insurance, duly in force, with insurers of recognized financial
responsibility; such insurance insures against such losses and risks as
are adequate in accordance with customary industry practice to protect
the Company and its subsidiaries and their respective businesses; and
neither the Company nor any such subsidiary has any reason to believe
that it will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost
that would not materially and adversely affect the business,
operations, earnings, prospects, properties or condition (financial or
otherwise) of the Company and its subsidiaries, taken as a whole,
except as disclosed in or contemplated by the Registration Statement
and by the Prospectus.
26. Neither the Company nor any of its officers and directors
(as defined in the 1933 Act Regulations) has taken or will take,
directly or indirectly, prior to the termination of the offering
contemplated by this Agreement, any action designed to stabilize or
manipulate the price of any security of the Company, or which has
caused or resulted in, or which might in the future reasonably be
expected to cause or result in, stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale
of the Securities.
27. Neither the Company nor any of its subsidiaries is an
"investment company" or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended (the "1940
Act"), or an "investment adviser" as such term is defined in the
Investment Advisers Act of 1940, as amended.
28. The Company is organized in conformity with the
requirements for qualification, and, as of the date hereof the Company
operates, and as of Closing Time the Company will operate, in a manner
that qualifies the Company as a "real estate investment trust" under
the Internal Revenue Code of 1986, as amended (the "Code"), and the
rules and regulations thereunder, for 1997 and subsequent years. The
Company qualified as a real estate investment trust under the Code for
each of its taxable years from 1987 through 1997.
12
<PAGE>
29. No default exists, and no event has occurred which, with
notice or lapse of time or both, would constitute a default in the due
performance and observance of any term, covenant or condition of any
indenture, mortgage, deed of trust, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries or any of their
respective properties is bound or may be affected, except such defaults
which, singly or in the aggregate, would not have a material adverse
effect on the business, operations, earnings, prospects, properties or
condition (financial or otherwise) of the Company and its subsidiaries,
considered as a whole, except as disclosed in the Registration
Statement and in the Prospectus.
30. The Advisory Agreement, dated as of January 1, 1998,
between the Company and the Advisor (the "Advisory Agreement"), has
been duly authorized, executed and delivered by the parties thereto and
constitutes the valid agreement of the parties thereto, enforceable in
accordance with its terms, except as limited by (a) the effect of
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer
or other similar laws relating to or affecting the rights or remedies
of creditors or (b) the effect of general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or at law).
13
<PAGE>
SUPPLEMENTAL SCHEDULE I
Company: Health and Retirement Properties Trust
Underwriter: Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch")
Purchase Agreement Dated: July 2, 1997
Registration Statement No.: 333-26887
Indenture: Indenture dated as of July 9, 1997 and
Supplemental Indenture dated as of July 9,
1997, both between the Company and the
Trustee, and the Supplemental Indenture dated
as of February 23, 1998 between the Company
and the Trustee
Trustee: State Street Bank and Trust Company
Title of Securities: Remarketed Reset Notes due July 9, 2007 (the
"Securities")
Currency: United States Dollars
Aggregate Principal Amount: $50,000,000
Current Ratings: Moody's Investors Service, Inc.: Baa2;
Standard & Poor's Ratings Services: BBB;
Fitch Investors Service, L.P.: BBB+
Price to Public: 100.00245 of the principal amount of the
Securities plus accrued interest of
$383,838.13
Purchase Price: 99.85245% of the principal amount of the
Securities plus accrued interest of
$383,838.13
Gross Spread: 0.15% for the initial Remarketing Period
0.075% per annum for each additional
Remarketing Period
I-1
<PAGE>
Day Basis: Actual/360 for Floating Rate Mode; 30/360 for
Fixed Rate Mode
Form: Global Note
Maturity: July 9, 2007
Initial Spread Period: The one-year period commencing July 9, 1997
and ending July 9, 1998 during which the
interest rate on the Securities will be reset
quarterly and will equal LIBOR (as defined)
plus 0.45%
Initial Interest Rate: LIBOR (as defined) plus 0.45% until July 9,
1998
Initial Interest
Payment Dates: Quarterly on October 9, 1997, January 9,
1998, April 9, 1998, and July 9, 1998; the
interest rate on the Securities will be reset
quarterly and will be payable in arrears
until July 9, 1998
Duration/Mode
Determination Date: After the Initial Spread Period, the
character and duration of the interest rate
on the Securities as well as the redemption
type (either Par Redemption, Premium
Redemption or Make-Whole Redemption) will be
agreed to by the Company and the Remarketing
Underwriter on each applicable Duration/Mode
Determination Date, which is the 15th
calendar date prior to the first date of each
Subsequent Spread Period
Subsequent Spread Period: Determined by agreement between the Company
and the Remarketing Underwriter on the
applicable Duration/Mode Determination Date.
Each Subsequent Spread Period will
I-2
<PAGE>
last for either one year, two years, three
years, four years, five years, six years,
seven years, eight years or nine years (or
any integral multiple of six months) but
cannot exceed the maturity date of the
Securities
Interest Rate During
Subsequent Spread Periods: If the Securities are in the Floating Rate
Mode, interest will equal LIBOR plus the
applicable Spread, as agreed to by the
Company and the Remarketing Underwriter; if
the Securities are in the Fixed Rate Mode,
interest will equal the applicable Spread
plus the comparable Treasury rate
Subsequent Spread: Determined by agreement between the
Remarketing Underwriter and the Company to
result in a rate which will enable 100% of
tendered Securities to be remarketed
Alternate Spread: The percentage equal to LIBOR for the
Quarterly Period beginning on the
Commencement Date of the Subsequent Spread
Period
Redemption: On or after July 9, 1998, the Securities may
be redeemable, in whole or part, at the
option of the Company on those Interest
Payment Dates that are specified as
redemption dates by the Company on the
applicable Duration/Mode Determination Date;
the redemption type (either Par Redemption,
Premium Redemption or Make-Whole Redemption)
will be agreed to by the Company and the
Remarketing Underwriter on each applicable
Duration/Mode Determination Date
Sinking Fund Provisions: None
I-3
<PAGE>
Definitions and Other
Provisions: As per Prospectus Supplement dated July 2,
1997 and Supplement thereto dated February
18, 1998
Closing Date, Time and
Location: February 23, 1998, 9:00 a.m. at the offices
of Sullivan & Worcester, LLP in Boston,
Massachusetts
I-4
<PAGE>
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
you and the Company in accordance with its terms.
Very truly yours,
HEALTH AND RETIREMENT PROPERTIES TRUST
By /s/ Ajay Saini
Name: Ajay Saini
Title: Chief Financial Officer
CONFIRMED AND ACCEPTED, as of the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By /s/
Name:
Title:
I-5
EXHIBIT 4.1
SUPPLEMENTAL INDENTURE NO. 2 DATED AS OF FEBRUARY 23, 1998
(Supplementing the Supplemental Indenture dated as of July 9, 1997)
by and between
HEALTH AND RETIREMENT PROPERTIES TRUST
and
STATE STREET BANK AND TRUST COMPANY
HEALTH AND RETIREMENT PROPERTIES TRUST
Remarketed Reset Notes due July 9, 2007
<PAGE>
This SUPPLEMENTAL INDENTURE NO. 2 (this "Supplement") made and entered
into as of February 23, 1998 between HEALTH AND RETIREMENT PROPERTIES TRUST, a
Maryland real estate investment trust (the "Company"), and STATE STREET BANK AND
TRUST COMPANY, a Massachusetts trust company, as Trustee (the "Trustee").
WITNESSETH THAT:
WHEREAS, the Company and the Trustee have executed and delivered an
Indenture, dated as of July 9, 1997 (the "Indenture"), relating to the Company's
issuance, from time to time, of various series of debt securities; and
WHEREAS, the Company and the Trustee have executed and delivered a
Supplemental Indenture, dated as of July 9, 1997 (the "Supplemental Indenture
No. 1") to the Indenture pursuant to which the Company has issued a series (the
"Series") of debt securities known as the Company's "$200,000,000 Remarketed
Reset Notes due July 9, 2007" (the "Reset Notes"); and
WHEREAS, the Company has determined to issue an additional $50,000,000
of Reset Notes pursuant to the Indenture and Supplemental Indenture No. 1, and
proposes to supplement Supplemental Indenture No. 1 to provide for such
issuance; and
NOW, THEREFORE, THIS SUPPLEMENT WITNESSETH:
ARTICLE 1
SUPPLEMENT
Pursuant to Section 301 of the Indenture, the Series is hereby reopened
to increase the maximum principal amount thereof by $50,000,000 to $250,000,000.
Henceforth the Series shall be known as the Company's Remarketed Reset Notes due
July 9, 2007.
ARTICLE 2
EFFECTIVENESS
This Supplement shall be effective for all purposes as of the date and
time this Supplement has been executed and delivered by the Company and the
Trustee in accordance with Article Nine of the Indenture. As supplemented
hereby, Supplemental Indenture No. 1 is hereby confirmed as being in full force
and effect.
ARTICLE 3
MISCELLANEOUS
Section 3.1 In the event any provision of this Supplement shall be held
invalid or unenforceable by any court of competent jurisdiction, such holding
shall not invalidate or render unenforceable any other provision hereof or any
provision of the Indenture.
Section 3.2 This Supplement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts.
Section 3.3 This Supplement may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and
the same instrument.
<PAGE>
IN WITNESS WHEREOF, the Company and the Trustee have caused
this Supplement to be executed as an instrument under seal in their respective
corporate names and attested by their duly authorized officers, all as of the
date first above written.
HEALTH AND RETIREMENT PROPERTIES TRUST
By: /s/ Ajay Saini
Ajay Saini
Treasurer
:
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: /s/
Name:
Title:
-2-
