EXHIBIT 10.1
HRPT PROPERTIES TRUST
SECOND AMENDMENT TO LOAN AGREEMENT
This SECOND AMENDMENT TO LOAN AGREEMENT (this "Amendment") is dated as
of October 24, 2000 and entered into by and among HRPT PROPERTIES TRUST, a
Maryland real estate investment trust, formerly known as Health and Retirement
Properties Trust ("Borrower"), the financial institutions listed on the
signature pages hereof ("Lenders"), DRESDNER KLEINWORT BENSON NORTH AMERICA LLC,
a limited liability company organized under the laws of Delaware, as agent for
Lenders ("Agent") and Fleet National Bank, as Administrative Agent
("Administrative Agent"), and, for purposes of Section 6 hereof, the Guarantors
listed on the signature pages hereof, and is made with reference to that certain
Fourth Amended and Restated Loan Agreement dated as of April 2, 1998, as amended
as of February 12, 1999 (as so amended, the "Loan Agreement") by and among
Borrower, Lenders, Agent, Administrative Agent and certain of Guarantors.
Capitalized terms used herein without definition shall have the same meanings
herein as set forth in the Loan Agreement.
WHEREAS, Borrower and Lenders desire to amend the Loan Agreement to
permit Borrower, subject to the limitations set forth herein, to incur secured
debt in an aggregate amount not to exceed 25% of total adjusted assets and to
make certain other amendments as set forth below;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
Section 1. AMENDMENTS TO THE LOAN AGREEMENT.
1.1 Amendment to Section 1: Definitions.
A. Section 1.1 of the Loan Agreement is hereby amended by adding
thereto the following new definitions, which shall be inserted in proper
alphabetical order:
"Non-Guarantor" means any Subsidiary of Borrower that has been formed
or designated by the Borrower for the limited purpose of incurring debt secured
by Liens permitted by Section 6.9(ii) and has been designated as a
"Non-Guarantor" by Borrower in a written notice to Administrative Agent.
"Total Adjusted Assets" means, at any time, total assets of Borrower
and its Subsidiaries on a consolidated basis, less the aggregate amount of any
prepaid expenses and deferral charges, plus accumulated depreciation, all as
determined in accordance with GAAP.
B. Section 1.1 of the Loan Agreement is hereby further amended by:
(i) (x) inserting the words "of Borrower or any Subsidiary Guarantor"
after the words "Mortgage Interest" in the first line of the definition
of "Eligible Mortgage" set forth
therein and (y) deleting the words "otherwise permitted pursuant to
Section 6.9(i) or Section 6.9(iv)" from clause (ii) of such definition
and inserting the words "other than Permitted Exceptions" in place
thereof; and
(ii) (x) inserting the words "of Borrower or any Subsidiary Guarantor"
after the word "Property" in the first line of the definition of
"Eligible Property" set forth therein and (y) "deleting the words
"otherwise permitted pursuant to Section 6.9(i) or Section 6.9(iv)"
from clause (ii) of such definition and inserting the words "other than
Permitted Exceptions" in place thereof.
1.2 Amendment to Section 6.5: Subsidiaries. Section 6.5 of the Loan Agreement is
hereby amended by deleting the word "and" from the end of clause (i) thereof,
inserting a comma "," in place thereof and inserting the following at the end
thereof as a new clause (iii): "and (iii) any Non-Guarantor".
1.3 Amendment to Section 6.8: Indebtedness. Section 6.8 of the Loan Agreement is
hereby amended by deleting it in its entirety and inserting the following in
substitution therefor:
"6.8 Indebtedness.
(a) Suffer or permit the total Indebtedness (determined without
duplication) of Borrower and its Subsidiaries (other than (i)
Convertible Subordinated Debt or (ii) Indebtedness that is secured in
accordance with the provisions of Section 6.9) to exceed at any time
50% of the aggregate Allowed Value of all Eligible Properties and all
Eligible Mortgages; provided, that neither Borrower nor any Subsidiary
Guarantor shall guaranty or otherwise become obligated in any way with
respect to any Indebtedness of any Non-Guarantor.
(b) Suffer or permit any Indebtedness of Borrower to exist or remain
outstanding, unless the earliest date for any payment or settlement
thereof is at least three months after the Termination Date (other than
(i) Bridge Financings in an aggregate amount not to exceed $100,000,000
at any one time outstanding, (ii) Assumed Indebtedness in an aggregate
amount not to exceed $100,000,000 at any one time outstanding and (iii)
Government Properties Assumed Indebtedness in an aggregate amount not
to exceed $27,000,000 at any one time outstanding)."
1.4 Amendment to Section 6.9: Liens. Section 6.9 of the Loan Agreement is hereby
amended by deleting it in its entirety and inserting the following in
substitution therefor:
"6.9 No Liens. Suffer or permit after the date hereof any Lien on any
Property, Lease, Mortgage Interest or Credit Support Agreement except
(i) Permitted Exceptions and (ii) Liens securing Indebtedness of the
Borrower and its Subsidiaries in an aggregate amount at any time
outstanding not to exceed 25% of Total Adjusted Assets; provided that
no Liens (other than Permitted Exceptions) shall be suffered or
permitted to exist on any property or interest that is an Eligible
Property or any Eligible Mortgage."
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1.5 Amendment to Section 7.1: Events of Default. Clause (o) Section 7.1 (Loan
Documents) of the Loan Agreement is hereby amended by inserting the words
"(other than a Non-Guarantor)" after the words "Subsidiary of a Borrower" in the
second line thereof.
1.6 Amendment to Section 9.1: Subsidiary Guaranties. Section 9.1 of the Loan
Agreement is hereby amended by inserting at the end thereof the words "or has
been designated by Borrower as a Non-Guarantor".
Section 2. BORROWER'S REPRESENTATIONS AND WARRANTIES.
In order to induce Lenders to enter into this Amendment and to amend
the Loan Agreement in the manner provided herein, Borrower represents and
warrants to each Lender that the following statements are true, correct and
complete:
A. Trust or Corporate Power and Authority. Borrower and each Guarantor
has all requisite trust or corporate power and authority to enter into this
Amendment and to carry out the transactions contemplated by, and perform its
respective obligations under, the Loan Agreement as amended by this Amendment
(the "Amended Agreement").
B. Authorization of Agreements. The execution and delivery of this
Amendment and the performance of the Amended Agreement have been duly authorized
by all necessary trust or corporate action on the part of Borrower and
Guarantors.
C. No Conflict. The execution and delivery by Borrower and Guarantors
of this Amendment and the performance by Borrower and Guarantors of the Amended
Agreement do not and will not (i) violate any provision of any law or any
governmental rule or regulation applicable to Borrower or any of its
Subsidiaries, the Declaration or Trust, or Certificates or Articles of
Incorporation or Bylaws of Borrower or any of its Subsidiaries or any order,
judgment or decree of any court or other agency of government binding on
Borrower or any of its Subsidiaries, (ii) conflict with, result in a breach of
or constitute (with due notice or lapse of time or both) a default under any
contractual obligation of Borrower or any of its Subsidiaries, (iii) result in
or require the creation or imposition of any Lien upon any of the properties or
assets of Borrower or any of its Subsidiaries, or (iv) require any approval of
stockholders or any approval or consent of any Person under any contractual
obligation of Borrower or any of its Subsidiaries, except for such approvals or
consents which will be obtained on or before the date hereof.
D. Governmental Consents. The execution and delivery by Borrower and
Guarantors of this Amendment and the performance by Borrower and Guarantors of
the Amended Agreement do not and will not require any registration with, consent
or approval of, or notice to, or other action to, with or by, any federal, state
or other governmental authority or regulatory body.
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E. Binding Obligation. This Amendment and the Amended Agreement have
been duly executed and delivered by Borrower and each Guarantor and are the
legally valid and binding obligations of Borrower and Guarantors against
Borrower and each Guarantor in accordance with their respective terms, except as
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or limited creditors' rights generally or by equitable
principles relating to enforceability.
F. Incorporation of Representations and Warranties From Loan Agreement.
The representations and warranties contained in Section 3 of the Loan Agreement
are and will be true, correct and complete in all material respects on and as of
the date hereof and to the same extent as though made on and as of that date,
except to the extent such representations and warranties specifically relate to
an earlier date, in which case they were true, correct and complete in all
material respects on and as of such earlier date.
G. Absence of Default. No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Amendment
that would constitute a Default or an Event of Default.
Section 3. ACKNOWLEDGEMENT AND CONSENT
Each Guarantor hereby acknowledges that it has reviewed the terms and
provisions of the Loan Agreement and this Amendment and consents to the
amendment of the Loan Agreement effected pursuant to this Amendment. Each
Guarantor hereby confirms that it will continue to guaranty to the fullest
extent possible the full and punctual payment of the principal and interest
(including, without limitation, interest which, but for the filing of a petition
in bankruptcy with respect to Borrower would accrue hereunder) on all Loans made
to Borrower and the full and punctual payment of all other amounts payable by
Borrower under the Loan Agreement (including amounts that would become due but
for the operation of the automatic stay under Section 362(e) of the United
States Bankruptcy Code) subject to the limitations set forth in Section 9(a) of
the Loan Agreement.
Each Guarantor acknowledges and agrees that (i) notwithstanding the
conditions to effectiveness set forth in this Amendment, such Guarantor is not
required by the terms of the Loan Agreement or any other Loan Document to
consent to the amendments to the Loan Agreement effected pursuant to this
Amendment and (ii) nothing in the Loan Agreement, this Amendment or any other
Loan Document shall be deemed to require the consent of such Guarantor to any
future amendments to the Loan Agreement.
Section 4. MISCELLANEOUS
4.1 Reference to and Effect on the Loan Agreement and the Other Loan Documents.
A. On and after the date hereof, each reference in the Loan Agreement
to "this Agreement," "hereunder," "hereof," "herein" or words of the like import
referring to the Loan Agreement, and each reference in the other Loan Documents
to the "Loan Agreement,"
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"thereunder," "thereof" or words of like import referring to the Loan Agreement
shall mean and be a reference to the Amended Agreement.
B. Except as specifically amended or waived by this Amendment, the Loan
Agreement and the other Loan Documents shall remain in full force and effect and
are hereby ratified and confirmed.
C. The execution, delivery and performance of this Amendment shall not,
except as expressly provided herein, constitute a waiver of any provision of, or
operate as a waiver of any right, power or remedy of Agent or any Lender under,
the Loan Agreement or any of the other Loan Documents.
4.2 Fees and Expenses. Borrower acknowledges that all costs, fees and expenses
as described in subsection 10.7 of the Loan Agreement incurred by Agent and its
counsel with respect to this Amendment and the documents and transactions
contemplated hereby shall be for the account of Borrower.
4.3 Headings. Sections and subsection heading in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
amendment for any other purpose or be given any substantive effect.
4.4 Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS OF LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
4.5 Counterparts; Effectiveness. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Amendment shall become effective upon (i) the execution
of a counterpart hereof by Borrower, Agent and Majority Lenders, and receipt by
Borrower and Agent of written or telephonic notification of such execution and
authorization of delivery thereof and (ii) the payment by Borrower to
Administrative Agent, for distribution to the Lenders that have executed this
Amendment, of a non-refundable amendment fee in immediately available funds in
an amount equal to 0.03% of each such Lender's Commitment.
4.6 Non-Liability of Trustees. (a) THE DECLARATION OF TRUST ESTABLISHING
BORROWER, DATED OCTOBER 9, 1986, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS
THERETO (THE "DECLARATION"), IS DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS
AND TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT THE NAME "HRPT PROPERTIES
TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS TRUSTEES,
BUT NOT
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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.
(b) THE DECLARATIONS OF TRUST ESTABLISHING HUB PROPERTIES TRUST DATED
SEPTEMBER 12, 1996, HUB ACQUISITION TRUST DATED APRIL 14, 1997, HUB LA
PROPERTIES TRUST DATED MAY 12, 1997, HUB RI PROPERTIES TRUST DATED NOVEMBER 3,
1997, HUB WOODMONT INVESTMENT TRUST DATED JANUARY 30, 1998, NINE PENN CENTER
PROPERTIES TRUST DATED JUNE 18, 1998 AND RESEARCH PARK PROPERTIES TRUST DATED
SEPTEMBER 8, 1998, A COPY OF EACH OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO
(THE "TRUST SUBSIDIARIES DECLARATIONS"), IS DULY FILED WITH THE DEPARTMENT OF
ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT THE NAMES "HUB
PROPERTIES TRUST", "HUB ACQUISITION TRUST", "HUB LA PROPERTIES TRUST", "HUB RI
PROPERTIES TRUST", "HUB WOODMONT INVESTMENT TRUST", "NINE PENN CENTER PROPERTIES
TRUST" AND "RESEARCH PARK PROPERTIES TRUST" REFER TO THE RESPECTIVE TRUSTEES
UNDER THE RESPECTIVE TRUST SUBSIDIARIES DECLARATIONS COLLECTIVELY AS TRUSTEES,
BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER,
EMPLOYEE OR AGENT OF ANY OF THE TRUST SUBSIDIARIES SHALL BE HELD TO ANY PERSONAL
LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, SUCH
TRUST SUBSIDIARY. ALL PERSONS DEALING WITH EACH TRUST SUBSIDIARY, IN ANY WAY,
SHALL LOOK ONLY TO THE ASSETS OF SUCH TRUST SUBSIDIARY FOR THE PAYMENT OF ANY
SUM OR THE PERFORMANCE OF ANY OBLIGATION.
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IN WITNESS WHEREOF, the parties hereto have caused this amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
HRPT PROPERTIES TRUST
By: /s/ John C. Popeo
Name: John C. Popeo
Title: Treasurer
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DRESDNER KLEINWORT BENSON
NORTH AMERICA, LLC, as Agent
By: /s/ Ronald K. Rapp
Name: Ronald K. Rapp
Title: Vice President
By: /s/ Beatrice Wondrak
Name: Beatrice Wondrak
Title: Asst. Vice President
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DRESDNER BANK AG, New York Branch
and Grand Cayman Branch, as a Lender
By: /s/ Michael Seton
Name: Michael Seton
Title: Vice President
By: /s/ David Sarner
Name: David Sarner
Title: Assistant Treasurer
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FLEET NATIONAL BANK,
as Administrative Agent and as a Lender
By: /s/ Jeffry M. Morrison
Name: Jeffry M. Morrison
Title: Director
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ABBEY NATIONAL TREASURY SERVICES
PLC, as a Lender
By:
-------------------------------
Name:
Title:
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ARAB AMERICAN BANK,
as a Lender
By: /s/ Carmelo L. Foti
Name: Carmelo L. Foti
Title: Vice President
By: /s/ Rami El-Rifai
Name: Rami El-Rifai
Title: Assistant Vice President
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BANK HAPOALIM B.M.,
as a Lender
By: /s/ Marc Bose
Name: Marc Bose
Title: Vice President
By: /s/ Conrad Wagner
Name: Conrad Wagner
Title: First Vice President
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THE GOVERNOR AND COMPANY
OF BANK OF IRELAND, as a Lender
By: /s/ Kieran Rockett
Name: Kieran Rockett
Title: Authorized Signatory
By: /s/ Niamh O'Flynn
Name: Niamh O'Flynn
Title: Manager
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BANK OF MONTREAL, as a Lender
By:
-------------------------------
Name:
Title:
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BANK ONE, as a Lender
By: /s/ Patricia Leung
Name: Patricia Leung
Title: Senior Vice President
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VIA BANQUE, as a Lender
By: /s/
-----------------------------
Name:
Title:
By: /s/
-----------------------------
Name:
Title:
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CITIZENS BANK OF MASSACHUSETTS, as a
Lender
By: /s/ Daniel R. Ouellette
Name: Daniel R. Ouellette
Title: Senior Vice President
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COMERICA BANK, as a Lender
By:/s/ Casey Ostrander
Name: Casey Ostrander
Title: Account Officer
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CREDIT LYONNAIS, as a Lender
By: /s/ Charles Heidsieck
Name: Charles Heidsieck
Title: Senior Vice President
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DG BANK, DEUTSCHE
GENOSSENSCHAFTSBANK AG, as a Lender
By: /s/ Linda J. O'Connell
Name: Linda J. O'Connell
Title: Vice President
By: /s/
-------------------------------
Name:
Title:
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FIRST UNION NATIONAL BANK,
as a Lender
By: /s/ Rex E. Rudy
Name: Rex E. Rudy
Title: Vice President
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GENERAL ELECTRIC CAPITAL
CORPORATION, as a Lender
By:
---------------------------------
Name:
Title:
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KEY BANK CORPORATE CAPITAL INC.,
as a Lender
By: /s/ Pamela Lerose
Name: Pamela Lerose
Title: Assistant Vice President
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RIGGS BANK N.A.,
as a Lender
By: /s/ Douglas H. Klamfoth
Name: Douglas H. Klamfoth
Title: Vice President
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RZB FINANCE LLC,
as a Lender
By: /s/ John A. Valiska
Name: John A. Valiska
Title: Vice President
By: /s/ Pearl Geffers
Name: Pearl Geffers
Title: First Vice President
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SOCIETE GENERALE,
as a Lender
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
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THE BANK OF NEW YORK,
as a Lender
By: /s/ Maria Kastanis
Name: Maria Kastanis
Title: Vice President
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THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ Christopher I. Grant
Name: Christopher I. Grant
Title: Director
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WAINWRIGHT BANK & TRUST COMPANY,
as a Lender
By: /s/ Henri Soucy
Name: Henri Soucy
Title: Vice President
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BNP PARIBAS, as a Lender
By:
-----------------------------
Name:
Title:
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For the purposes of Section 3: HEALTH AND RETIREMENT
PROPERTIES INTERNATIONAL, INC.
By: /s/ John C. Popeo
Name: John C. Popeo
Title: Treasurer
CAUSEWAY HOLDINGS INC.
By: /s/ John C. Popeo
Name: John C. Popeo
Title: Treasurer
CHURCH CREEK CORPORATION
By: /s/ John C. Popeo
Name: John C. Popeo
Title: Treasurer
HUB PROPERTIES TRUST
By: /s/ John C. Popeo
Name: John C. Popeo
Title: Treasurer
HUB ACQUISITION TRUST
By: /s/ John C. Popeo
Name: John C. Popeo
Title: Treasurer
HUB LA PROPERTIES TRUST
By: /s/ John C. Popeo
Name: John C. Popeo
Title: Treasurer
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HUB RI PROPERTIES TRUST
By: /s/ John C. Popeo
Name: John C. Popeo
Title: Treasurer
HUB WOODMONT INVESTMENT TRUST
By: /s/ John C. Popeo
Name: John C. Popeo
Title: Treasurer
HUB REALTY FUNDING, INC.
By: /s/ John C. Popeo
Name: John C. Popeo
Title: Treasurer
HUB MANAGEMENT, INC.
By: /s/ John C. Popeo
Name: John C. Popeo
Title: Treasurer
HUB REALTY COLLEGE PARK, INC.
By: /s/ John C. Popeo
Name: John C. Popeo
Title: Treasurer
INDEMNITY COLLECTION
CORPORATION
By: /s/ John C. Popeo
Name: John C. Popeo
Title: Treasurer
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HUB REALTY KANSAS CITY, INC.
By: /s/ John C. Popeo
Name: John C. Popeo
Title: Treasurer
HUB REALTY GOLDEN, INC.
By: /s/ John C. Popeo
Name: John C. Popeo
Title: Treasurer
HUB REALTY COLLEGE PARK I, LLC
By: /s/ John C. Popeo
Name: John C. Popeo
Title: Treasurer
HUB LA LIMITED PARTNERSHIP
BY HUB LA Properties Trust,
its general partner
By: /s/ John C. Popeo
Name: John C. Popeo
Title: Treasurer
HUB WOODMONT LLC
By: /s/ John C. Popeo
Name: John C. Popeo
Title: Treasurer
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1735 MARKET STREET PROPERTIES TRUST
By: /s/ John C. Popeo
Name: John C. Popeo
Title: Treasurer
NINE PENN CENTER ASSOCIATES, L.P.
BY NINE PENN CENTER PROPERTIES, its
general partner
By: /s/ John C. Popeo
Name: John C. Popeo
Title: Treasurer
NINE PENN CENTER PROPERTIES TRUST
By: /s/ John C. Popeo
Name: John C. Popeo
Title: Treasurer
RESEARCH PARK PROPERTIES TRUST
By: /s/ John C. Popeo
Name: John C. Popeo
Title: Treasurer
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