EXHIBIT 10.33
EXECUTION COPY
U.S. $450,000,000
FOURTH AMENDMENT TO
THIRD AMENDED AND RESTATED REVOLVING LOAN AGREEMENT
among
HEALTH AND RETIREMENT PROPERTIES TRUST,
as Borrower,
THE LENDERS NAMED HEREIN,
DRESDNER KLEINWORT BENSON NORTH AMERICA LLC,
as Agent,
FLEET NATIONAL BANK,
as Administrative Agent
Dated as of November 14, 1997
HEALTH AND RETIREMENT PROPERTIES TRUST
FOURTH AMENDMENT TO
THIRD AMENDED AND RESTATED REVOLVING LOAN AGREEMENT
DATED AS OF NOVEMBER 14, 1997
This FOURTH AMENDMENT (this "Amendment") is dated as of November 14,
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
liability 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, as defined below,
"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
administrative agent (in such capacity, together with any successor in such
capacity in accordance with the terms of the Loan Agreement, "Administrative
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, a Second Amendment and Waiver dated as of March 19,
1997 and a Third Amendment dated as of July 30, 1997 (as amended to date and
from time to time hereafter, the "Loan Agreement") among Borrower, the Lenders,
Agent, Administrative Agent and Co-Agents referred to therein and, in connection
with Section 9 of the Loan Agreement and the guaranties given therein, HEALTH
AND RETIREMENT PROPERTIES INTERNATIONAL, INC., a Delaware corporation and a
direct wholly-owned Subsidiary of Borrower ("Retirement Properties"), CAUSEWAY
HOLDINGS INC., a Massachusetts corporation and a direct wholly-owned Subsidiary
of Borrower ("Causeway"), SJO CORPORATION, a Massachusetts corporation and a
direct wholly-owned Subsidiary of Borrower ("SJO"), HUB PROPERTIES TRUST, HUB
ACQUISITION TRUST, and HUB LA PROPERTIES TRUST, each a Maryland real estate
investment trust and each a direct wholly-owned Subsidiary of Borrower (the
"Trust Subsidiaries"), HUB REALTY FUNDING, INC., HUB MANAGEMENT, INC., HUB
REALTY COLLEGE PARK, INC., HUB REALTY I, INC., HUB REALTY IV., INC. and HUB
REALTY GOLDEN, INC., each a Delaware corporation and a wholly-owned Subsidiary
of Borrower (the "Delaware Subsidiaries"), and HUB REALTY COLLEGE PARK I, LLC, a
Maryland limited liability company and a wholly-owned Subsidiary of Borrower
(the "LLC"). Capitalized terms used herein without definition shall have the
same meanings herein as set forth in the Loan Agreement.
1
WHEREAS, Borrower has advised Lenders that it wishes to amend certain
terms of the Loan Agreement;
WHEREAS, subject to the terms set forth herein, Lenders have agreed to
amend the Loan Agreement.
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 the
amendment and restatement of the definition of "Facility" as follows:-
""Facility" means each (i) operating facility offering health
care or related services or rehabilitation or retirement
services or other health care 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 Interest 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 or, in the
case of a Medical Office Asset, for medical research and
development or, in the case of a Fee or Mortgage Interest
described in Section 6.7(vi), for any business purpose,
including, without limitation, in the case of both (i) and
(ii), each Property and Mortgaged Property.
(b) Section 6.7 of the Loan Agreement is hereby amended by deleting the
word "and" immediately before (v) in the text thereof and replacing it with a
comma, deleting the period at the end thereof and adding the following proviso
at the end thereof:-
", and (vi) notwithstanding the preceding provisions of this
Section 6.7, Borrower shall not be deemed to have made any
material change in the nature of its business as presently
conducted to the extent that the Borrower directly, or
indirectly through a Subsidiary, acquires or operates, or
acquires or funds a Mortgage Interest in, income producing
real property interests and facilities not heretofore
described in this Section 6.7 if such real property interests
or Mortgage Interests (i) valued at cost as of
2
the date of their respective acquisitions, do not in the
aggregate exceed 10% of the aggregate Allowed Value of the
Properties and Mortgage Interests of the Borrower and its
Subsidiaries on a consolidated basis determined (x) at the
time of such acquisition or (y) if a facility is at the time
of its acquisition of a type heretofore described in this
Section 6.7 but is thereafter converted to a type not
heretofore so described, on the date of such conversion, and
(ii) are not treated by the Borrower as Eligible Properties or
Eligible Mortgages, as the case may be, for any purpose of
this Agreement."
(c) Sections 7.1 (r) and (s) of the Loan Agreement are hereby amended
and restated as follows:
"(r) Medical Office Assets and Clinics. More than 55% of the
aggregate Allowed Value of the Properties and Mortgage
Interests shall be attributable to Medical Office Assets
and/or Clinics; or"
(d) Sections 7.1 (t), (u) and (v) are hereby renumbered as Sections 7.1
(s), (t) and (u), respectively.
2. Conditions to Effectiveness.
Section 1 of this Amendment shall become effective immediately upon the
prior or concurrent satisfaction of the conditions that Borrower shall deliver
to Agent for Lenders (with sufficient originally executed copies for each
Lender) executed copies of this Amendment, executed by Borrower, Retirement
Properties, Causeway, SJO, the Trust Subsidiaries, the Delaware Subsidiaries and
the LLC, Agent, Co-Agent(s) and the Majority Lenders.
3. Representations and Warranties.
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 delivery of this Amendment and the performance of
the Amended Agreement have been authorized by all necessary action on the part
of Borrower.
3
(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 May 14, 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.
4. Guarantors' Acknowledgement and Consent.
Each of Retirement Properties, Causeway, SJO, the Trust Subsidiaries,
the Delaware Subsidiaries and the LLC (each a "Subsidiary Guarantor") has
guarantied 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
4
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.
5. 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.
6. 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.
7. 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.
8. 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.
9. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
10. 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 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.
5
11. 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.
12. NONLIABILITY 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 "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.
(b) THE DECLARATIONS OF TRUST ESTABLISHING HUB PROPERTIES TRUST DATED
SEPTEMBER 12, 1996, HUB ACQUISITION TRUST DATED MARCH 14, 1997 AND HUB LA
PROPERTIES TRUST DATED MAY 12, 1997, 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" AND "HUB LA
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.
[Remainder of page intentionally left blank]
6
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/
Name:
Title Executive Vice President
By: /s/
Name:
Title
DRESDNER BANK AG, New York Branch,
as a Lender
By: /s/ Felix K. Camacho
Name: Felix K. Camacho
Title Assistant Treasurer
By: /s/ Robert Grella
Name: Robert Grella
Title Vice President
S - 1
FLEET NATIONAL BANK, as
Administrative Agent and as a Lender
By: /s/ Ginger Stolzenthaler
Name: G. Stolzenthaler
Title Senior Vice President
BANK OF MONTREAL, as a Co-Agent and
as a Lender
By: /s/ Jeff Forsythe
Name: Jeff Forsythe
Title Director
CIBC INC., as a Co-Agent and as a Lender
By: /s/ Timothy E. Doyle
Name: Timothy E. Doyle
Title Managing Director CIBC Oppenheimer
Corp as Agent
CITICORP REAL ESTATE, INC., as a Co-
Agent and as a Lender
By: /s/ Susan McManigal
Name: Susan McManigal
Title Attorney-In-Fact
CREDIT LYONNAIS, Cayman Island
Branch, as a Co-Agent and as a Lender
By: /s/ Farboud Tavangar
Name: Farboud Tavangar
Title First Vice President
S - 2
FIRST UNION NATIONAL BANK, as a
Co-Agent and as a Lender
By: /s/ Joseph H. Towell
Name: Joseph H. Towell
Title Senior Vice President
KEY CORPORATE CAPITAL INC., as a
Co-Agent and as a Lender
By: /s/ Angela G. Mago
Name: Angela G. Mago
Title Vice President
SOCIETE GENERALE, as a Co-Agent and
as a Lender
By: /s/ Sedare Coradin
Name: Sedare Coradin
Title Vice President
THE SUMITOMO BANK, LIMITED, as a
Lender
By: /s/D.G. Eastman
Name: D.G. Eastman
Title Vice President and manager
By: /s/ Alfred DoGermanis
Name: Alfred DoGermanis
Title Vice President
S - 3
ABBEY NATIONAL TREASURY
SERVICES PLC, as a Lender
By: /s/ R. Gambel
Name: R. Gambel
Title Asset Backed Securities
VIA BANQUE, as a Lender
By: /s/ C. Prot
Name: C. Prot
Title Senior Directory
By: /s/ P. Arnout
Name: P. Arnout
Title Director
RIGGS BANK N.A., as a Lender
By: /s/
Name:
Title
THE BANK OF NEW YORK, as a Lender
By: /s/ David C. Judge
Name: David C. Judge
Title Vice President
S - 4
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., New York Branch, as a
Lender
By: /s/ Hiroshi Kitada
Name: Hiroshi Kitada
Title Deputy General Manager
THE BANK OF NOVA SCOTIA, New York
Agency, as a Lender
By: /s/ Chistopher I. Grant
Name: Chistopher I. Grant
Title Senior Relationship Manager
BANQUE NATIONAL DE PARIS, as a
Lender
By: /s/ Katherine Wolfe
Name: Katherine Wolfe
Title Vice President
By: /s/ Charles H. Day
Name: Charles H. Day
Title Assistant Vice President
DG BANK, DEUTSCHE
GENOSSENSCHAFTSBANK, Cayman
Island Branch, as a Lender
By: /s/ Linda J. O'Connell
Name: Linda J. O'Connell
Title Vice President
By: /s/ Karen A. Brinkman
Name: Karen A. Brinkman
Title Vice President
S - 5
SIGNET BANK, as a Lender
By: /s/ Frieda M.A. McWilliams
Name: Frieda M.A. McWilliams
Title Vice President
MITSUI LEASING (U.S.A.) INC., as a
Lender
By: /s/ Yuichi Kamizawa
Name: Yuichi Kamizawa
Title Vice President
ARAB AMERICAN BANK, as a Lender
By: /s/ Peter Rivera
Name: Peter Rivera
Title Assistant Vice President
By: /s/ William G. Reynolds
Name: William G. Reynolds
Title Vice President
For the purposes of Section 9: HEALTH AND RETIREMENT
PROPERTIES INTERNATIONAL, INC.
By: /s/ Ajay Saini
Name: Ajay Saini
Title Treasurer
CAUSEWAY HOLDINGS INC.
By: /s/ Ajay Saini
Name: Ajay Saini
Title Treasurer
S - 6
SJO CORPORATION
By: /s/ Ajay Saini
Name: Ajay Saini
Title Treasurer
HUB PROPERTIES TRUST
By: /s/ Ajay Saini
Name: Ajay Saini
Title Treasurer
HUB ACQUISITION TRUST
By: /s/ Ajay Saini
Name: Ajay Saini
Title Treasurer
HUB LA PROPERTIES TRUST
By: /s/ Ajay Saini
Name: Ajay Saini
Title Treasurer
HUB REALTY FUNDING, INC.
By: /s/ Ajay Saini
Name: Ajay Saini
Title Treasurer
HUB MANAGEMENT, INC.
By: /s/ Ajay Saini
Name: Ajay Saini
Title Treasurer
S - 7
HUB REALTY COLLEGE PARK, INC.
By: /s/ Ajay Saini
Name: Ajay Saini
Title Treasurer
HUB REALTY I, INC.
By: /s/ Ajay Saini
Name: Ajay Saini
Title Treasurer
HUB REALTY IV, INC.
By: /s/ Ajay Saini
Name: Ajay Saini
Title Treasurer
HUB REALTY GOLDEN, INC.
By: /s/ Ajay Saini
Name: Ajay Saini
Title Treasurer
HUB REALTY COLLEGE PARK I,
LLC
By: /s/ Ajay Saini
Name: Ajay Saini
Title Treasurer
S - 8