EXHIBIT 2.2
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
This FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Amendment")
is made and entered into as of October 25, 2002 by and among Constellation
Health Services, Inc., a Maryland corporation ("CHSI"), and the persons
identified as Sellers on Schedule 7(k) of the Amended and Restated Schedules to
the Purchase Agreement (as hereinafter defined and as amended hereby), on the
one hand (CHSI and such persons, collectively, "Seller"), and Senior Housing
Properties Trust, a Maryland real estate investment trust ("SNH"), and Five Star
Quality Care, Inc., a Maryland corporation ("FVE"), on the other hand (SNH and
FVE, collectively, "Buyer").
W I T N E S S E T H:
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WHEREAS, pursuant to that certain Purchase and Sale Agreement, dated as
of August 26, 2002, by and among Seller, SNH and Constellation Real Estate
Group, Inc. (the "Purchase Agreement"), Seller agreed to sell its interest in
certain assets constituting senior living properties and facilities and SNH
agreed to purchase such assets and to assume certain liabilities thereto, all as
further described in the Purchase Agreement; and
WHEREAS, Seller and SNH have agreed to amend the Purchase Agreement so
as to make FVE a party thereto;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
expressly acknowledged, and subject to the conditions hereinafter set forth, the
parties hereto hereby agree as follows:
1. Capitalized Terms. Capitalized terms used and not otherwise defined
herein shall have the meanings given such terms in the Purchase Agreement.
2. FVE as Buyer. FVE hereby joins in the Purchase Agreement, jointly
and severally with SNH, as Buyer thereunder. All references in the Purchase
Agreement to Buyer shall refer to both SNH and FVE, jointly and severally.
3. Purchase and Sale of the Senior Living Assets. Section 1 of the
Purchase Agreement is hereby amended by deleting the third and fourth paragraphs
therefrom in their entirety and replacing them with the following:
"Seller understands that SNH is a "real estate investment
trust" under the Code and that SNH intends to enter into an agreement
with a subsidiary of FVE ("Tenant") to lease and operate certain of the
Facilities, it being understood that none of the negotiation,
execution, delivery or effectiveness of any agreement between SNH and
Tenant shall be a condition to Buyer's obligation to consummate the
transactions contemplated by this Agreement. At SNH's expense, Seller
shall cooperate in a commercially reasonable manner with SNH in
connection with the negotiation of such agreement and the consummation
of the transactions contemplated by this Agreement.
Seller further understands and agrees that Buyer shall
designate each of the Facilities to be acquired directly by either SNH
or FVE (or any wholly-owned subsidiary of either of them) and, at
Closing, Seller shall sell, convey, transfer and deliver such Facility
or Facilities, Purchased Assets and Assumed Liabilities directly to
such designee. Notwithstanding any such direct sale to any such
designee, SNH and FVE shall at all times remain jointly and severally
liable in all respects under this Agreement."
4. Purchase Price Adjustment. Section 5(c)(i) of the Purchase Agreement
is hereby amended by deleting the reference to "Seventy-Seven Million Two
Hundred Fifty Thousand Dollars ($77,250,000)" and replacing it with a reference
to "Seventy-Seven Million One Hundred Fifty Thousand Dollars ($77,150,000)." The
foregoing adjustment in the Purchase Price reflects the reduction attributable
to the Defect Repair Amount pursuant to Section 5(a)(iv) of the Purchase
Agreement.
5. Buyer's Representation and Warranties: Organization and Good
Standing. Section 9(a) of the Purchase Agreement is hereby amended by adding the
following sentence at the end thereof: "FVE is a corporation duly organized,
validly existing and in good standing under the laws of the State of Maryland."
6. HUD Facility Allocable Amount. Section 5(d)(ii) of the Purchase
Agreement is hereby amended by deleting the reference to "Twenty-Five Million,
Five Hundred Thousand Dollars ($25,500,000)" and replacing it with a reference
to "Nineteen Million Seven Hundred Fifty Thousand Dollars ($19,750,000)".
7. Notices. Any notices or other communications to be given to Buyer
pursuant to Section 21(a) of the Purchase Agreement shall be given to the
following address (in addition to the other addresses set forth therein):
Five Star Quality Care, Inc.
400 Centre Street
Newton, Massachusetts 02458
Attn: Evrett W. Benton
Telecopy: (617) 796-8385
8. Counterparts. This Amendment may be executed in one or more
counterparts (including by means of telecopied signature pages), all of which
shall be considered one and the same agreement, and shall become effective when
or more such counterparts have been signed by each of the parties and delivered
to the other parties.
9. Ratification. As amended hereby, the Purchase Agreement is hereby
ratified and confirmed.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the day and year first above written.
Seller:
CONSTELLATION HEALTH SERVICES, INC.
By: /s/ Steven D. Kesler
Name: Steven D. Kesler
Title: President
Each of the other Sellers
pursuant to a power of
attorney granted to CHSI:
By: CONSTELLATION HEALTH SERVICES, INC.
By: /s/ Steven D. Kesler
Name: Steven D. Kesler
Title: President
Buyer:
SENIOR HOUSING PROPERTIES TRUST
By: /s/ John R. Hoadley
Name: John R. Hoadley
Title: Treasurer
FIVE STAR QUALITY CARE, INC.
By: /s/ Bruce J. Mackey
Name: Bruce J. Mackey
Title: Treasurer and
Chief Financial Officer
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For purposes of acknowledging the execution
and delivery of this Amendment only
CONSTELLATION REAL ESTATE GROUP, INC.
By: /s/ Steven D. Kesler
Name: Steven D. Kesler
Title: President
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