Exhibit 10.22
AMENDED AND RESTATED
AGREEMENT AND PLAN OF REORGANIZATION
BY AND AMONG
BERLIN C.C., INC.,
A VERMONT CORPORATION,
ST. JOHNSBURY C.C., INC.,
A VERMONT CORPORATION,
ROCHESTER C.C., INC.,
A NEW HAMPSHIRE CORPORATION,
SPRINGFIELD C.C., INC.
A VERMONT CORPORATION,
BURLINGTON C.C., INC.,
A VERMONT CORPORATION
BENNINGTON C.C., INC.,
A VERMONT CORPORATION
THE LP CORPORATION,
A VERMONT CORPORATION,
AMERICAN HEALTH CARE, INC.,
A VERMONT CORPORATION
("SELLERS")
and
HEALTH AND RETIREMENT PROPERTIES TRUST,
A MARYLAND REAL ESTATE INVESTMENT TRUST,
("HRP")
___________________________
January 26, 1995
TABLE OF CONTENTS
Section 1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . 1
Section 2. CLOSING. . . . . . . . . . . . . . . . . . . . . . . . 3
2.1 Closing . . . . . . . . . . . . . . . . . . . . . . 3
Section 3. CONDITIONS TO HRP'S OBLIGATION TO CLOSE. . . . . . . . 4
3.1 Closing Documents . . . . . . . . . . . . . . . . . 4
3.2 Condition of Properties . . . . . . . . . . . . . . 5
3.3 Title Policies. . . . . . . . . . . . . . . . . . . 6
3.4 Opinions of Counsel . . . . . . . . . . . . . . . . 6
3.5 Hart-Scott-Rodino . . . . . . . . . . . . . . . . . 6
3.6 Rate Setting . . . . . . . . . . . . . . . . . . . 6
3.7 VSA/NHSA Agreement . . . . . . . . . . . . . . . . 6
3.8 Board Approval . . . . . . . . . . . . . . . . . . 6
3.9 Other Approvals . . . . . . . . . . . . . . . . . . 6
3.10 Deposit . . . . . . . . . . . . . . . . . . . . . . 7
Section 4. CONDITIONS TO SELLERS' OBLIGATION TO CLOSE. . . . . . 7
4.1 HRP Shares . . . . . . . . . . . . . . . . . . . . 7
4.2 Closing Documents . . . . . . . . . . . . . . . . . 7
4.3 Opinion of Counsel . . . . . . . . . . . . . . . . 7
4.5 Satisfaction of Other Conditions . . . . . . . . . 7
Section 5. REPRESENTATIONS AND WARRANTIES OF SELLERS. . . . . . . 7
5.1 Status and Authority of the Sellers . . . . . . . . 7
5.2 Action of the Sellers . . . . . . . . . . . . . . . 8
5.3 No Violations of Agreements . . . . . . . . . . . . 8
5.4 Litigation . . . . . . . . . . . . . . . . . . . . 8
5.5 Existing Leases, Agreements, Etc . . . . . . . . . 8
5.6 Disclosure . . . . . . . . . . . . . . . . . . . . 9
5.7 Utilities, Etc. . . . . . . . . . . . . . . . . . . 9
5.8 Compliance With Law . . . . . . . . . . . . . . . . 9
5.9 Taxes. . . . . . . . . . . . . . . . . . . . . . . 10
5.10 Special Districts . . . . . . . . . . . . . . . . . 10
5.11 Not A Foreign Person . . . . . . . . . . . . . . . 10
5.12 Hazardous Substances . . . . . . . . . . . . . . . 10
5.13 Investment Intent . . . . . . . . . . . . . . . . . 10
Section 6. REPRESENTATIONS AND WARRANTIES OF HRP . . . . . . . . 11
6.1 Status and Authority of HRP . . . . . . . . . . . . 11
6.2 Action of HRP . . . . . . . . . . . . . . . . . . . 11
6.3 No Violations of Agreements . . . . . . . . . . . . 12
6.4 Litigation . . . . . . . . . . . . . . . . . . . . 12
6.5 Capitalization . . . . . . . . . . . . . . . . . . 12
Section 7. COVENANTS OF THE SELLERS. . . . . . . . . . . . . . . 12
7.1 Compliance with Laws, Etc. . . . . . . . . . . . . 12
7.2 Operation of the Facilities . . . . . . . . . . . . 13
7.3 Approval of Agreements . . . . . . . . . . . . . . 13
7.4 Compliance with Agreements . . . . . . . . . . . . 13
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7.5 Notice of Material Changes or Untrue
Representations . . . . . . . . . . . . . . . . . 13
7.6 Title Matters . . . . . . . . . . . . . . . . . . . 13
7.7 Survey Matters . . . . . . . . . . . . . . . . . . 14
7.8 Other Diligence Materials . . . . . . . . . . . . . 15
7.9 Other Activities During the Period Prior to
Closing . . . . . . . . . . . . . . . . . . . . . 15
Section 8. ADJUSTMENTS. . . . . . . . . . . . . . . . . . . . . . 15
8.1 Adjustments Based on Existing Liens . . . . . . . . 15
8.2 Adjustments Relating to Rochester C.C., Inc. . . . 15
8.3 Closing Costs. . . . . . . . . . . . . . . . . . . 16
Section 9. DEFAULT; TERMINATION . . . . . . . . . . . . . . . . . 16
9.1 Default by the Sellers . . . . . . . . . . . . . . 16
9.2 Default by HRP . . . . . . . . . . . . . . . . . . 16
Section 10. INDEMNIFICATION. . . . . . . . . . . . . . 17
10.1 Indemnification by the Sellers . . . . . . . . . 17
10.2 Indemnification by HRP . . . . . . . . . . . . . 17
10.3 Notice and Payment of Claims . . . . . . . . . . 18
Section 11. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . 18
11.1 Expenses . . . . . . . . . . . . . . . . . . . . . 18
11.2 Brokerage Commissions . . . . . . . . . . . . . . 18
11.3 Publicity. . . . . . . . . . . . . . . . . . . . . 19
11.4 Execution of Additional Documents. . . . . . . . . 19
11.5 Notices . . . . . . . . . . . . . . . . . . . . . 19
11.6 Waivers, Etc. . . . . . . . . . . . . . . . . . . 20
11.7 Assignment; Successors and Assigns . . . . . . . . 21
11.8 Severability. . . . . . . . . . . . . . . . . . . 21
11.9 Counterparts; Amendments. . . . . . . . . . . . . 21
11.10 Governing Law . . . . . . . . . . . . . . . . . . 21
11.11 Jurisdiction. . . . . . . . . . . . . . . . . . . 22
11.12 Performance on Business Days . . . . . . . . . . . 22
11.13 Attorneys Fees . . . . . . . . . . . . . . . . . . 22
11.14 Section and Other Headings . . . . . . . . . . . . 22
11.15 Entire Agreement . . . . . . . . . . . . . . . . . 22
11.16 Obligations of Sellers After the Closing . . . . . 22
11.17 Limitation of Liability. . . . . . . . . . . . . . 23
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Schedule A - List of Sellers
Schedule B - Allocation of HRP Shares
Schedule C-1 - Berlin Health and Rehab Center
Schedule C-2 - St. Johnsbury Health and Rehab Center
Schedule C-3 - Springfield Health and Rehab Center
Schedule C-4 - Bennington Health and Rehab Center
Schedule C-5 - Hanson Court Convalescent Home
Schedule C-6 - Redstone Villa
Schedule C-7 - Rowan Court Health and Rehab Center
Schedule C-8 - Rochester Manor
Schedule C-9 - Burlington Health and Rehab Center
Schedule D - Liens and Encumbrances
Schedule E - Opinion of Sellers' Counsel
Schedule F - Opinion of HRP's Counsel
Schedule G - Registration Rights Agreement
Schedule H - Breaches or Conflicts
Schedule I - Contracts and Agreements; Licensed Bed
Capacity and Medicare/Medicaid Status
Schedule J - Compliance with Law
Schedule K - Hazardous Substances
Schedule L - Capitalization of HRP
Schedule M - Form of Surveyor's Certificate
AMENDED AND RESTATED
AGREEMENT AND PLAN OF REORGANIZATION
THIS AMENDED AND RESTATED AGREEMENT AND PLAN OF
REORGANIZATION is made as of the 26th day of January, 1995, by
and among the Sellers listed on Schedule A hereto (collectively,
the "Sellers") and HEALTH AND RETIREMENT PROPERTIES TRUST, a
Maryland real estate investment trust ("HRP").
WITNESSETH:
WHEREAS, Sellers are the owners and holders of the
Properties (this and other capitalized terms used and not
otherwise defined herein having the meanings ascribed to such
terms in Section 1); and
WHEREAS, the Sellers wish to transfer substantially all of
their assets to HRP, solely in exchange for voting shares of HRP
and the assumption by HRP of certain of the liabilities of
Sellers in a transaction intended to qualify as a Reorganization
within the meaning of Section 368(a)(1)(C) of the Code;
WHEREAS, it is contemplated by Sellers and HRP that, upon
the consummation of such Reorganization, each Seller will
distribute the HRP Shares received by such Seller to its
shareholders in complete liquidation of such Seller, and will
thereafter dissolve as a corporation;
WHEREAS, HRP wishes to acquire substantially all of Sellers'
assets and agrees to assume certain liabilities of Sellers on the
terms and conditions hereinafter set forth;
WHEREAS, the Sellers and HRP entered into an Agreement and
Plan of Reorganization dated September 1, 1994 (the "Original
Agreement") to accomplish the transactions referred to above; and
WHEREAS, the Sellers and HRP now desire to amend the
Original Agreement in certain respects and to restate the
Original Agreement in its entirety;
NOW, THEREFORE, in consideration of the mutual covenants
herein contained and other good and valuable consideration, the
mutual receipt and legal sufficiency of which are hereby
acknowledged, the Sellers and HRP hereby agree as follows:
Section 1. DEFINITIONS.
Capitalized terms used in this Agreement shall have the
meanings set forth below or in the Section of this Agreement
referred to below:
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1.1 "Agreement" shall mean this Amended and Restated
Agreement and Plan of Reorganization, together with Schedules A
through M, attached hereto, as it and they may be amended from
time to time as herein provided.
1.2 "Business Day" shall mean any day other than a
Saturday, Sunday or any other day on which banking institutions
in The Commonwealth of Massachusetts, the State of Vermont or the
State of New Hampshire are authorized by law or executive action
to close.
1.3 "Closing" shall have the meaning given such term in
Section 2.1.
1.4 "Closing Date" shall have the meaning given such term
in Section 2.1.
1.5 "Code" means the United States Internal Revenue Code of
1986, as amended.
1.6 "Declaration" shall mean the Declaration of Trust of
HRP, dated October 9, 1986, as the same has been and may be
amended and restated from time to time.
1.7 "Deposit" shall mean the sum of Two Hundred Fifty
Thousand Dollars ($250,000) paid by HRP to the Sellers and held
by the Escrow Agent for the benefit of the Sellers prior to the
date of the Original Agreement, receipt of which is hereby
acknowledged by the Sellers.
1.8 "Escrow Agent" shall mean Miller, Eggleston and
Rosenberg, Ltd.
1.9 "Facilities" shall mean, collectively, the nursing
homes, retirement centers, congregate living facilities and/or
other facilities offering other related health care products or
services being operated by the Sellers at the Properties.
1.10 "HRP" shall have the meaning given such term in the
preamble to this Agreement.
1.11 "HRP Shares" shall mean common shares of beneficial
interest, $.01 par value per share, of HRP.
1.12 "Properties" shall mean, collectively, those certain
real properties, the improvements thereon, all fixtures,
machinery, systems, equipment, furniture and furnishings owned by
the Sellers attached or appurtenant thereto or used in connection
therewith and all easements, privileges, licenses, rights and
appurtenances relating thereto, located in (i) Berlin, Vermont
and known as Berlin Health and Rehab Center, as more particularly
described in Schedule C-1, attached hereto and made a part
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hereof; (ii) St. Johnsbury, Vermont and known as St. Johnsbury
Health and Rehab Center, as more particularly described in
Schedule C-2, attached hereto and made a part hereof; (iii)
Springfield, Vermont and known as Springfield Health and Rehab
Center, as more particularly described in Schedule C-3, attached
hereto and made a part hereof; (iv) Bennington, Vermont and known
as Bennington Health and Rehab Center, as more particularly
described in Schedule C-4, attached hereto and made a part
hereof; (v) Springfield, Vermont and known as Hanson Court
Convalescent Home, as more particularly described in Schedule C-
5, attached hereto and made a part hereof; (vi) St. Albans,
Vermont and known as Redstone Villa, as more particularly
described in Schedule C-6, attached hereto and made a part
hereof; (vii) Barre, Vermont and known as Rowan Court Health and
Rehab Center, as more particularly described in Schedule C-7,
attached hereto and made a part hereof; (viii) Rochester, New
Hampshire and known as Rochester Manor, as more particularly
described in Schedule C-8, attached hereto and made a part
hereof; and (ix) Burlington, Vermont and known as Burlington
Health and Rehab Center, as more particularly described in
Schedule C-9, attached hereto and made a part hereof.
1.13 "Securities Act" shall have the meaning given such
term in Section 5.13.
1.14 "Sellers" shall have the meaning given such term in
the preamble to this Agreement.
1.15 "Surveys" shall have the meaning given such term in
Section 7.6.
1.16 "Title Commitments" shall have the meaning given such
term in Section 7.6.
1.17 "Title Company" shall mean Lawyer's Title Company or
such other title insurance company as shall have been approved by
HRP.
1.18 "VSA/NHSA Agreement" shall mean that certain Amended
and Restated Purchase and Sale Agreement, dated the date hereof,
among the Sellers, Vermont Subacute Corporation ("VSA") and New
Hampshire Subacute Corporation ("NHSA").
Section 2. CLOSING.
2.1 Closing. (a) The transfer and delivery of the
Properties to HRP and the issuance and delivery of HRP Shares to
the Sellers shall be consummated at a closing (the "Closing") to
be held at the offices of Sullivan & Worcester, One Post Office
Square, Boston, Massachusetts, or at such other location as the
Sellers and HRP may agree, at 10:00 a.m., local time, on a date
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(the "Closing Date") ten (10) days after the later to occur of
(i) the expiration of any applicable waiting periods required
under or in connection with the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, or the receipt from the
Federal Trade Commission and any other applicable governmental
agency having jurisdiction of valid and enforceable waivers
thereof, (ii) the approval for listing on the New York Stock
Exchange of the HRP Shares, and (iii) the receipt of all other
applicable approvals and licenses from any applicable
governmental bodies including, without limitation, certificates
or determinations of need, if required. In the event that the
Closing shall not have occurred on or before March 31, 1995,
provided that no action for specific performance shall have been
commenced by any party to enforce this Agreement, any party shall
have the right, by the giving of written notice, to terminate
this Agreement and, in such event, the Deposit, together with
interest thereon, shall be refunded to HRP in accordance with
Section 9.1.
(b) At the Closing, the Sellers shall transfer and deliver
to HRP all of the Properties, and HRP shall accept delivery of
the Properties. In exchange for the Properties, HRP shall cause
to be delivered to the Sellers that number of HRP Shares, the
value of which (as determined pursuant to the following sentence)
shall be equal to $35,000,000; provided, however, that such
amount shall be adjusted as may be required pursuant to Section
8). The value given to each HRP Share shall be $15.00. At the
Closing, the portion of such HRP Shares allocated to each Seller
on Schedule B hereto shall be issued to such Seller by delivery
of a certificate or certificates representing that number of HRP
Shares set forth opposite such Seller's name on such Schedule B,
in such manner as each such Seller shall specify to HRP not later
than three (3) Business Days prior to the Closing. The
certificates representing the HRP Shares shall bear the legend
set forth in Section 5.13 hereof.
Section 3. CONDITIONS TO HRP'S OBLIGATION TO CLOSE.
The obligation of HRP to accept delivery of the Properties
and to deliver the HRP Shares at the Closing shall be subject to
the satisfaction of the following conditions precedent on and as
of the Closing Date:
3.1 Closing Documents. The Sellers shall have delivered to
HRP:
(a) a good and sufficient special warranty deed, or its
local equivalent, with respect to each of the Properties, in
proper statutory form for recording, duly executed and
acknowledged by the Sellers, conveying good and marketable title
to the applicable Properties, free from all liens and
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encumbrances other than (i) liens and encumbrances approved by
HRP in accordance with Sections 7.5 and 7.6 and (ii) liens set
forth on Schedule D which HRP shall assume (subject to a
corresponding reduction in the Purchase Price as set forth in
Section 8);
(b) an assignment by the Sellers and an assumption by HRP,
in form and substance reasonably satisfactory to the Sellers and
HRP, duly executed and acknowledged by the Sellers and HRP, of
all of the Sellers' right, title and interest in, to and under
all licenses, contracts, permits and agreements affecting the
Properties which HRP has elected to assume (if any);
(c) an assignment by the Sellers and an assumption by HRP,
in form and substance reasonably satisfactory to, and duly
executed and acknowledged by, the Sellers and HRP of the
liabilities set forth on Schedule D which HRP has agreed to
assume;
(d) a certificate of a duly authorized officer of each of
the Sellers confirming the continued truth and accuracy of (i)
the representations and warranties of the Sellers in this
Agreement and (ii) the matters set forth in Section 3.2 of this
Agreement;
(e) to the extent the same are in the Sellers' possession,
original, fully executed copies of all documents and agreements
pertaining to the Properties and, in any event, copies of all
such documents and agreements certified by a responsible officer
of Sellers as conforming to the originals in all respects;
(f) certified copies of all charter documents, applicable
corporate resolutions and certificates of incumbency with respect
to each of the Sellers; and
(g) such other conveyance documents, certificates, deeds
and other instruments as HRP or the Title Company may reasonably
require.
3.2 Condition of Properties. (a) All of the Properties
and Facilities shall be in substantially the same physical
condition as on the date of this Agreement, ordinary wear and
tear excepted;
(b) No material default or event which with the giving of
notice and/or lapse of time could constitute a default shall have
occurred and be continuing under any material agreement
benefiting or affecting the Properties or the Facilities;
(c) No material adverse change shall have occurred, and no
action shall be pending or threatened which would adversely
affect the licensing, certification, qualification status,
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occupancy, eligibility for participation in federal or state
reimbursement programs or material accreditations of any of the
Facilities or, to the extent applicable, the Properties; and
(d) No action shall be pending or threatened for the
condemnation or taking by power of eminent domain of all or any
portion of the Properties or all or any portion of the
Facilities.
3.3 Title Policies. The Title Company shall be prepared,
subject only to payment of the applicable premium, to issue title
insurance policies to HRP, in form and substance satisfactory to
HRP in accordance with Sections 7.5 and 7.6, together with such
affirmative coverages as HRP may require and shall have been
determined available prior to the Closing.
3.4 Opinions of Counsel. HRP shall have received a written
opinion from Miller, Eggleston and Rosenberg, Ltd., special
counsel to the Sellers (or such additional local counsel as may
be reasonably acceptable to HRP), substantially in the form
attached hereto as Schedule E.
3.5 Hart-Scott-Rodino. The Sellers and HRP shall have
complied with all applicable provisions (if any) of the Hart-
Scott-Rodino Antitrust Improvements Act of 1976, as amended.
3.6 Rate Setting. HRP shall have received such assurances
as HRP, in its sole discretion, shall deem necessary, including,
without limitation, opinions of counsel and/or confirmations from
state agencies, that the transactions contemplated by this
Agreement will have an acceptable effect on Medicaid rates for
the Facilities.
3.7 VSA/NHSA Agreement. The transactions contemplated by
the VSA/NHSA Agreement shall have been consummated.
3.8 Board Approval. The Board of Trustees of HRP shall
have approved the transactions contemplated hereby in all
respects.
3.9 Other Approvals. The Sellers and HRP shall have
received, in form and substance reasonably satisfactory to the
Sellers and HRP, all required approvals and waivers, including,
without limitation, all licenses, certificates of need and
regulatory and reimbursement permits and approvals as may be
necessary or appropriate to consummate the transaction
contemplated by this Agreement and to use the Properties in the
same manner as they are currently being used by the Sellers, as
set forth on Schedule I hereto.
3.10 Deposit. The Escrow Agent shall have returned the
Deposit, together with interest accrued thereon, to HRP.
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Section 4. CONDITIONS TO SELLERS' OBLIGATION TO CLOSE.
The obligation of the Sellers to convey the Properties and
the Facilities to HRP is subject to the satisfaction of the
following conditions precedent on and as of the Closing Date:
4.1 HRP Shares. HRP shall deliver to the Sellers the HRP
Shares in the manner provided in Section 2, adjusted as herein
provided.
4.2 Closing Documents. HRP shall have delivered to the
Sellers:
(a) A certificate of a duly authorized officer of HRP
confirming the continued truth and accuracy of the
representations and warranties of HRP in this Agreement; and
(b) Certified copies of all charter documents, applicable
resolutions and certificates of incumbency with respect to HRP.
4.3 Opinion of Counsel. The Sellers shall have received a
written opinion from (a) Sullivan & Worcester, special counsel to
HRP (or such additional local counsel as shall be reasonably
satisfactory to Sellers), substantially in the form attached
hereto as Schedule F, and (b) Miller, Eggleston & Rosenberg,
special counsel to the Sellers, that the transactions
contemplated hereby qualify as a reorganization within Section
368(a)(1)(C) of the Code.
4.4 Registration Rights Agreement. The Sellers and HRP
shall have entered into a Registration Rights Agreement in the
form attached hereto as Schedule G.
4.5 Satisfaction of Other Conditions. The conditions
precedent described in Sections 3.5, 3.7 and 3.8 shall have been
satisfied.
Section 5. REPRESENTATIONS AND WARRANTIES OF SELLERS.
To induce HRP to enter into this Agreement, the Sellers
jointly and severally represent and warrant to HRP as follows
(such representations and warranties to be effective as of the
date of the Original Agreement):
5.1 Status and Authority of the Sellers. Each of the
Sellers is a corporation duly organized, validly existing and in
corporate good standing under the laws of its state of
incorporation, and has all requisite power and authority under
the laws of such state and its respective charter documents to
enter into and perform its obligations under this Agreement and
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to consummate the transactions contemplated hereby. Each of the
Sellers has duly qualified to transact business in each
jurisdiction in which the nature of the business conducted by it
requires such qualification. Each Seller is acquiring the HRP
Shares solely for investment purposes, and not with a view toward
involvement in the management of HRP.
5.2 Action of the Sellers. Each of the Sellers has taken
all necessary action to authorize the execution, delivery and
performance of this Agreement, and upon the execution and
delivery of any document to be delivered by the Sellers on or
prior to the Closing Date, such document shall constitute the
valid and binding obligation and agreement of each of the
Sellers, enforceable against each of the Sellers in accordance
with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar
laws of general application affecting the rights and remedies of
creditors.
5.3 No Violations of Agreements. Except as set forth on
Schedule H, neither the execution, delivery or performance of
this Agreement by the Sellers, nor compliance with the terms and
provisions hereof, will result in any breach of the terms,
conditions or provisions of, or conflict with or constitute a
default under, or result in the creation of any lien, charge or
encumbrance upon any property or assets of the Sellers pursuant
to the terms of any indenture, mortgage, deed of trust, note,
evidence of indebtedness or any other agreement or instrument by
which any of the Sellers is bound.
5.4 Litigation. No investigation, action or proceeding is
pending and, to the Sellers' knowledge, no action or proceeding
is threatened and no investigation looking toward such an action
or proceeding has begun, which (i) questions the validity of this
Agreement or any action taken or to be taken pursuant hereto,
(ii) will result in any material adverse change in the business,
operation, licensure, reimbursement, affairs or condition of any
of the Properties or the Facilities, (iii) result in or subject
the Properties or the Facilities to a material liability, or (iv)
involves condemnation or eminent domain proceedings against any
part of the Properties.
5.5 Existing Leases, Agreements, Etc. The Sellers have not
entered into any contracts or agreements with respect to the
Properties, other than as previously disclosed to HRP and listed
on Schedule I hereto. The copies of such contracts or agreements
heretofore made available by the Sellers to HRP for examination
are true, correct and complete copies thereof, have not been
amended except as evidenced by amendments similarly delivered and
constitute the entire agreement between the Sellers and the
respective parties thereto. There are no defaults under such
contracts or agreements; no events have occurred which with the
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passage of time or the giving of notice or both would result in
an event of default thereunder; there are no contingent
liabilities under such contracts and agreements except as set
forth in Schedule I; and Sellers are entitled to all benefits of
such contracts and agreements which have not been assigned or
encumbered in any way. Sellers may assign all such contracts and
agreements to HRP. There are no other material agreements
affecting the Properties. Schedule I sets forth a fair and
accurate representation of the licensed bed capacity and
Medicare/Medicaid certification status of each of the Facilities.
5.6 Disclosure. There is no fact or condition which
materially and adversely affects the business or condition of the
Properties or the Facilities which has not been set forth in this
Agreement, or in the other documents, certificates or statements
furnished to HRP in connection with the transactions contemplated
hereby.
5.7 Utilities, Etc. All utilities and services necessary
for the use and operation of the Properties and the Facilities
located thereon (including, without limitation, road access, gas,
water, electricity and telephone), are available thereto, are of
sufficient capacity to meet adequately all needs and requirements
necessary for the use and operation of the Properties and
Facilities for their respective intended purposes and the
Properties and the Facilities are legally entitled to be served
by such utilities at rates typical for similar properties without
further action by the Sellers or any other party. To the
Sellers' knowledge, no fact, condition or proceeding exists which
would result in the termination or impairment of the furnishing
of such utilities to the Properties or the Facilities located
thereon.
5.8 Compliance With Law. (i) Except as set forth on
Schedule J, the Properties and the Facilities and the use and
operation thereof do not violate any applicable federal, state,
municipal or other governmental statutes, ordinances, by-laws,
rules, regulations or any other legal requirements, including,
without limitation, those relating to health care, construction,
occupancy, zoning, adequacy of parking, environmental protection,
occupational health and safety and fire safety; and (ii) there
are presently in effect all licenses, permits, and other
authorizations necessary for the current use, occupancy and
operation thereof. The Sellers have not been advised in writing
of any threatened request, application, proceeding, plan, study
or effort which would materially adversely affect the present
use, zoning of, or licenses, permits or other authorizations for
use of, the Properties or the Facilities or which would modify or
realign any adjacent street or highway.
5.9 Taxes. Other than the amounts disclosed by tax bills,
no taxes or special assessments of any kind (special, bond or
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otherwise) are or have been levied with respect to the Properties
or any portion thereof, which are outstanding or unpaid, and, to
the Sellers' knowledge, none will be levied prior to the Closing
Date. Each of the Properties is separately and distinctly
assessed as a separate tax lot. To the Sellers' knowledge, each
of the Properties, during the most recent tax fiscal year and the
three (3) years prior thereto, has been duly valued and assessed
for property tax purposes in accordance with applicable law.
There is no pending abatement proceeding or, to the Sellers'
knowledge, threatened reassessment of all or any portion of the
Properties.
5.10 Special Districts. No portion of the Properties is
within a Special Flood Hazard Area (or 100-year flood plain) as
identified by the Federal Emergency Management Administration or
other governmental agency or within any specially designated or
registered historic, architectural or taxing district, such as
would require any more than normal or routine local governmental
approvals in order to effect interior or exterior improvements to
such Properties or the Facilities, either cosmetic or structural.
5.11 Not A Foreign Person. None of the Sellers is a
"foreign person" within the meaning of Section 1445 of the United
States Revenue Code of 1986, as amended, and the regulations
promulgated thereunder.
5.12 Hazardous Substances. Except as set forth in Schedule
K, neither the Sellers nor any other occupant or user of the
Properties or the Facilities, or any portion thereof, has stored
or disposed of (or engaged in the business of storing or
disposing of) or has released or caused the release of any
hazardous waste, contaminants, oil, radioactive or other material
on the Properties or any portion thereof, the removal of which is
required or the maintenance of which is prohibited or penalized
by any applicable Federal, state or local statutes, laws,
ordinances, rules or regulations, and, to the Sellers' knowledge,
the Properties and the Facilities are free from any such
hazardous waste, contaminants, oil, radioactive and other
materials.
5.13 Investment Intent. Each of the Sellers and the
shareholder of each Seller is acquiring the HRP Shares to be
received by it pursuant to this Agreement for investment and not
with a view to, or for sale in connection with, any distribution
thereof, nor with any present intention of distributing or
selling the same. Each Seller understands that such HRP Shares
have not been registered under the Securities Act of 1993, as
amended (the "Securities Act") by reason of a specific exemption
from the registration provisions thereof which depends upon,
among other things, the bona fide nature of the Sellers'
investment intent as expressed herein. Each Seller acknowledges
and agrees that each certificate representing such HRP Shares
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shall bear the following legend until such time as such legend is
no longer required under the Securities Act and the rules and
regulations thereunder:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), or any state laws regulating the sale of securities
and may not be offered, sold or otherwise transferred unless
registered or an opinion of counsel satisfactory to the
Company is obtained to the effect that such registration is
not required. Health and Retirement Properties Trust (the
"Company") is authorized to issue more than one class of
shares of beneficial interest. The preferences, voting
powers, qualifications and special and relative rights of
the shares of each such class are set forth in the Company's
Declaration of Trust, a copy of which will be furnished
without charge upon written request."
The representations and warranties made in this Agreement by
the Sellers shall be continuing and shall be deemed remade by the
Sellers as of the Closing Date with the same force and effect as
if made on, and as of, such date. All representations and
warranties made by the Sellers in this Agreement shall survive
the Closing for a period of three years and in the event of the
liquidation and dissolution of a Seller shall be deemed to be
representations and warranties of the shareholders of said Seller
who receive distributions in connection with said liquidation and
dissolution.
Section 6. REPRESENTATIONS AND WARRANTIES OF HRP.
To induce the Sellers to enter in this Agreement, HRP
represents and warrants to the Sellers as follows (such
representations and warranties to be effective as of the date of
the Original Agreement):
6.1 Status and Authority of HRP. HRP is a real estate
investment trust duly organized, validly existing and in good
standing under the laws of the State of Maryland, and has all
requisite power and authority under the laws of such state and
under the Declaration to enter into and perform its obligations
under this Agreement and to consummate the transactions
contemplated hereby. HRP has duly qualified and is in good
standing as a trust or unincorporated business association in
each jurisdiction in which the nature of the business conducted
by it requires such qualification.
6.2 Action of HRP. HRP has taken all necessary action to
authorize the execution, delivery and performance of this
Agreement, and upon the execution and delivery of any document to
be delivered by HRP on or prior to the Closing Date, such
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document shall constitute the valid and binding obligation and
agreement of HRP, enforceable against HRP in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws of general
application affecting the rights and remedies of creditors.
6.3 No Violations of Agreements. Neither the execution,
delivery or performance of this Agreement by HRP, nor compliance
with the terms and provisions hereof, will result in any breach
of the terms, conditions or provisions of, or conflict with or
constitute a default under, or result in the creation of any
lien, charge or encumbrance upon any property or assets of HRP
pursuant to the terms of any indenture, mortgage, deed of trust,
note, evidence of indebtedness or any other agreement or
instrument by which HRP is bound.
6.4 Litigation. No investigation, action or proceeding is
pending and, to HRP's knowledge, no action or proceeding is
threatened and no investigation looking toward such an action or
proceeding has begun, which questions the validity of this
Agreement or any action taken or to be taken pursuant hereto.
6.5 Capitalization. Schedule L sets forth the authorized
capital stock of HRP and the number of shares of each class
thereof outstanding as of the date hereof. All of such
outstanding shares of capital stock are, and the HRP Shares to be
issued to the Sellers hereunder, when issued pursuant to the
terms hereof upon receipt of the consideration specified herein,
will be, duly authorized and validly issued, fully paid and non-
assessable and not subject to any preemptive or similar rights.
The representations and warranties made in this Agreement by
HRP shall be continuing and shall be deemed remade, subject to
updating for those representations which are made as of the date
hereof, by HRP as of the Closing Date with the same force and
effect as if made by HRP on, and as of, such date. All
representations and warranties made in this Agreement shall
survive the Closing for a period of three years.
Section 7. COVENANTS OF THE SELLERS.
The Sellers hereby jointly and severally covenant with HRP
between the date of this Agreement and the Closing Date as
follows:
7.1 Compliance with Laws, Etc. With respect to their
respective Properties and Facilities, to comply in all material
respects with (i) all laws, regulations and other requirements
from time to time applicable of every governmental body having
jurisdiction of the Properties or the use or occupancy of the
Facilities located thereon and (ii) all terms, covenants and
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conditions of all of the instruments of record and other
agreements affecting the Properties or the Facilities.
7.2 Operation of the Facilities. To operate the Properties
and the Facilities only in the ordinary course of business as
conducted, and to maintain the quality of the Facilities, in all
material respects consistent with past practice; to maintain
inventory at normal operating levels, in all material respects
consistent with past practice; and to use their best efforts to
preserve and maintain the Properties and the Facilities intact,
maintain occupancy at present or higher percentages, keep
available the services of their employees, and preserve for HRP
their relationships with suppliers, customers, sales
representatives and others having business relations with the
Facilities, and generally maintain the reputation of the
Facilities.
7.3 Approval of Agreements. Except as otherwise authorized
by this Agreement, not to enter into modify, amend or terminate
any material lease, contract or other agreement with respect to
the Properties or the Facilities which would encumber or be
binding upon the Properties or the Facilities from and after the
Closing Date, without in each instance obtaining the prior
written consent of HRP.
7.4 Compliance with Agreements. To the extent of their
respective obligations, to comply with each and every material
term, covenant and condition contained in any other document or
agreement affecting the Properties or the Facilities.
7.5 Notice of Material Changes or Untrue Representations.
Upon learning of any material change in any condition with
respect to the Properties, the Facilities or of any event or
circumstance which makes any representation or warranty of the
Sellers to HRP under this Agreement untrue or misleading,
promptly to notify HRP thereof (HRP agreeing, on learning of any
such fact or condition, promptly to notify the Sellers thereof).
7.6 Title Matters. The Sellers have delivered to HRP a
preliminary title report or title commitment, having an effective
date after the date of the Original Agreement, for an ALTA
extended owner's policy of title insurance with respect to the
Properties, together with complete and legible copies of all
instruments and documents referred to as exceptions to title or
as title requirements (collectively, the "Title Commitments"),
and HRP has given the Sellers notice of any title exceptions to
which HRP objects. Sellers shall use their best efforts to take
or cause to be taken such actions as may be required to cause
such exceptions to be removed from the Title Commitments. In the
event that Sellers cannot cause such exceptions to be removed,
the Sellers shall give HRP prompt notice thereof; it being
understood and agreed that the failure of the Sellers to give
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such notice within ten (10) Business Days after Sellers' receipt
of the final form of the Surveys referred to in Section 7.7 shall
be deemed an election by the Sellers to remedy such matters. If
HRP receives such notice from Sellers, HRP may elect (i) to
terminate this Agreement by the giving of written notice thereof
to the Sellers, in which event the Deposit, together with
interest thereon, shall be returned to HRP in accordance with
Section 9.1, or (ii) to consummate the transactions contemplated
hereby, notwithstanding such title defect, with an appropriate
abatement or reduction in the number of HRP Shares to be
delivered to Sellers on account thereof, the amount of which
shall be determined by good faith negotiation between the
parties. HRP shall make any such election by written notice to
the Sellers given on or prior to the tenth Business Day after the
Sellers' notice of their inability to cure such defect. Failure
of HRP to give such notice shall be deemed an election by it to
proceed in accordance with clause (ii) above.
7.7 Survey Matters. HRP (a) has arranged for the
preparation of an ALTA survey with respect to each of the
Properties (collectively, the "Surveys"), by a licensed surveyor
in the jurisdiction in which the applicable property is located,
which (i) contains an accurate legal description of the
applicable property, (ii) shows the exact location, dimension and
description (including applicable recording information) of all
utilities, easements, encroachments and other physical matters
affecting such property, the number of striped parking spaces
located thereon and all applicable building set-back lines, (iii)
states whether the applicable property is located within a 100-
year flood plain and (iv) includes a certification in the form
set forth in Schedule M, addressed to HRP, the Title Company and
any other persons requested by HRP, and (b) has given the Sellers
notice of any matters shown thereon to which HRP objects.
Sellers shall use their best efforts to take or cause to be taken
such actions as may be required to remedy the objectionable
matters. In the event the Sellers cannot cause such exceptions
to be removed, the Sellers shall give HRP notice thereof within
five (5) Business Days of becoming aware of such inability. If
HRP receives such notice from the Sellers, HRP may elect (i) to
terminate this Agreement by the giving of written notice thereof
to the Sellers, in which event the Deposit, together with
interest thereon, shall be refunded to HRP in accordance with
Section 9.1, or (ii) to consummate the transactions contemplated
hereby, notwithstanding such defect, with any appropriate
abatement or reduction in the number of HRP Shares to be
delivered to the Sellers on account thereof, the amount of which
shall be determined by good faith negotiation between the
parties. HRP shall make any such election by written notice to
the Sellers, given on or prior to the tenth Business Day after
the Sellers' notice of their inability to cure such defect.
Failure of HRP to give such notice shall be deemed an election by
HRP to proceed in accordance with clause (ii) above.
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7.8 Other Diligence Materials. The Sellers have delivered
to HRP all surveys, environmental assessment reports, building
evaluations, licenses, certificates of need, compliance and other
surveys, and other investigations and materials pertaining to the
Properties as are in the possession of the Sellers, and will
deliver to HRP any additional materials of the same or similar
nature which come into the possession of the Sellers between the
date hereof and the Closing Date. HRP agrees to provide the
Sellers with copies of all material studies and reports relating
to the physical condition of the Properties prepared for HRP (if
any) and with a copy of each of the Title Commitments and the
Surveys.
7.9 Other Activities During the Period Prior to Closing.
The Sellers and HRP shall endeavor to agree on the form of all of
the closing documents and opinions of counsel described herein on
or prior to the Closing Date. In addition, the Sellers and HRP
shall, prior to the Closing, cooperate in the preparation and
filing of any materials required (i) in order to obtain all
licenses, certifications and approvals required for the purchase,
sale and subsequent operation of the Properties and the
Facilities, or (ii) by the Hart-Scott-Rodino Improvements Act of
1976 and shall respond promptly to any requests by any
governmental agency with respect thereto.
All covenants made by the Sellers in this Agreement shall
survive the Closing for a period of three years and shall not be
merged into any instrument or conveyance document delivered at
Closing.
Section 8. ADJUSTMENTS.
8.1 Adjustments Based on Existing Liens. At Closing, the
number of HRP Shares to be issued to the Sellers shall be reduced
by that number of HRP Shares the value of which (based on $15.00
per share) is equal to the amount of liabilities of the Sellers
set forth on Schedule D which HRP has agreed to assume. It is
understood and agreed by the parties that no insurance policies
of the Sellers are to be transferred to HRP, and no apportionment
of the premiums therefor shall be made.
8.2 Adjustments Relating to Rochester C.C., Inc. At
Closing, the number of HRP Shares which would otherwise be
delivered to Rochester C.C., Inc. shall be reduced by _____ HRP
Shares.1
1 Number to be determined after calculation of post-
closing adjustment.
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8.3 Closing Costs. At Closing, all closing costs for the
transaction contemplated hereby (including, without limitation,
documentary, stamp, and other transfer taxes and fees, recording
and filing fees, premiums, charges, and fees of the Title Company
and Survey costs, costs and expenses relating to those certain
Phase II environmental site assessments performed by
Environmental Management Group, Inc. at certain of the
Properties, but specifically excluding each parties' legal and
accounting fees) shall be equally divided between HRP and Sellers
and an appropriate adjustment in the number of HRP Shares to be
issued to Sellers at Closing shall be made.
Section 9. DEFAULT; TERMINATION.
9.1 Default by the Sellers. If the Sellers shall have made
any representation or warranty herein which shall be untrue or
misleading in any material respect, or if the Sellers shall fail
to perform any of the material covenants and agreements contained
herein to be performed by them and such failure continues for a
period of ten (10) days after notice thereof from HRP, then HRP
may terminate this Agreement and/or HRP pursue any and all
remedies available to it at law or in equity, including, but not
limited to, a suit for specific performance or other equitable
relief. In addition to, and not in limitation of, the foregoing,
HRP may direct the Escrow Agent to return the Deposit, together
with interest accrued thereon with respect to one-half of the
Deposit from July 26, 1994 through the date of refund, and, with
respect to the balance of the Deposit, from the date of the
Original Agreement through the date of refund.
9.2 Default by HRP. If HRP shall have made any
representation or warranty herein which shall be untrue or
misleading in any material respect, or if HRP shall fail to
perform any of the covenants and agreements contained herein to
be performed by it and such failure shall continue for a period
of ten (10) days after notice thereof from the Sellers, the
Sellers may terminate this Agreement and/or the Sellers may
either retain the Deposit as liquidated damages, or may pursue
any and all remedies available to them at law or in equity,
including, but not limited to, a suit for specific performance or
other equitable relief.
9.3 Termination. If the average of the closing price for
HRP Shares during any consecutive five day period prior to the
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Closing Date as quoted in the Wall Street Journal is: (a) less
than or equal to $12.50, then the Sellers, by notice to HRP
delivered within two Business Days, may terminate this Agreement;
or (b) greater than or equal to $17.50, then HRP, by notice to
the Sellers delivered within two Business Days, may terminate
this Agreement; provided, that in either case the parties agree,
promptly upon such a termination, to direct the Escrow Agent to
return the Deposit, together with interest accrued thereon, to
HRP.
Section 10. INDEMNIFICATION.
10.1 Indemnification by the Sellers. The Sellers shall
indemnify and hold harmless HRP and its successors and assigns,
from and against any and all damages, claims, losses,
liabilities, and expenses, including without limitation
reasonable legal and accounting expenses (collectively,
"Losses"), which may arise out of: (i) any material breach or
violation of this Agreement by the Sellers; (ii) any material
breach of any of the representations, warranties or covenants
made in this Agreement by Sellers; (iii) any material inaccuracy
or misrepresentation or omission in any certificate or document
delivered by the Sellers in connection with this Agreement; and
(iv) any claim or action asserted by any third party arising out
of or in connection with the Sellers' ownership of the Properties
or operation of the Facilities prior to the Closing Date,
including, without limitation, all Losses with respect to (a)
Medicaid or Medicare depreciation recaptures as provided in
Section 3.6 hereto and (b) retroactive rate adjustments whether
arising from or related to recoupments, offsets, or otherwise.
The representations, warranties and covenants of the Sellers
contained in this Agreement, or any certificate, document,
instrument or agreement delivered pursuant to this Agreement,
shall survive the execution and delivery of this Agreement, the
Closing and the consummation of the transactions contemplated by
this Agreement for a period of three years from the Closing Date
and in the event of the liquidation and dissolution of a Seller,
these representations and warranties shall also be deemed to be
the joint and several representations and warranties of the
shareholders of said Seller.
10.2 Indemnification by HRP. HRP shall indemnify and hold
harmless the Sellers and their successors and assigns from and
against any and all Losses which may arise out of (i) any
material breach or violation of this Agreement by HRP; (ii) any
material breach of any of the representations, warranties or
covenants made in this Agreement by HRP; (iii) any material
inaccuracy or misrepresentation or omission in any certificate or
document delivered by HRP in connection with this Agreement; or
(iv) HRP's ownership of the Properties after the Closing Date.
The warranties, representations and covenants of HRP contained in
this Agreement, or any certificate, document, instrument or
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agreement delivered pursuant to this Agreement, shall survive the
execution and delivery of this Agreement, the Closing, and the
consummation of the transactions contemplated by this Agreement
for a period of three years from the Closing Date.
10.3 Notice and Payment of Claims. Upon obtaining knowledge
thereof, the party entitled to indemnification (the "Indemnitee")
shall promptly notify the party liable for such indemnification
(the "Indemnitor") in writing of any damage, claim, loss,
liability or expense which the Indemnitee has determined has
given or could give rise to a claim under Sections 10.1 or 10.2
hereof (such written notice being hereinafter referred to as a
"Notice of Claim"). A Notice of Claim shall specify in
reasonable detail the nature and estimated amount of such claim,
the basis on which such claim is asserted, whether such claim is
covered by insurance and whether any rights of indemnification
may exist against any third party with respect to such claim.
The Indemnitor shall satisfy its obligations under Sections 10.1
or 10.2, as the case may be, or shall advise the Indemnitee that
in good faith it disputes the claim, within 30 days of its
receipt of a Notice of Claim.
Section 11. MISCELLANEOUS.
11.1 Expenses. Except as set forth in Section 8.3, the
Sellers and HRP shall pay their own expenses incident to the
negotiation, preparation and carrying out of this Agreement,
including, without limitation, all fees and expenses of their
respective counsel.
11.2 Brokerage Commissions. Each of the parties hereto
represents to the other parties that it dealt with no broker,
finder or like agent in connection with this Agreement, the
Original Agreement or the transactions contemplated hereby, and
that it reasonably believes that there is no basis for any other
person or entity to claim a commission or other compensation for
bringing about this Agreement, the Original Agreement or the
transactions contemplated hereby. The Sellers shall indemnify
and hold harmless HRP and its legal representatives, heirs,
successors and assigns from and against any loss, liability or
expense, including reasonable attorneys' fees, arising out of any
claim or claims for commissions or other compensation for
bringing about this Agreement, the Original Agreement or the
transactions contemplated hereby made by any broker, finder or
like agent, if such claim or claims are based in whole or in part
on dealings with the Sellers. HRP shall indemnify and hold
harmless the Sellers and their respective legal representatives,
heirs, successors and assigns from and against any loss,
liability or expense, including reasonable attorneys' fees,
arising out of any claim or claims for commissions or other
compensation for bringing about this Agreement, the Original
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Agreement or the transactions contemplated hereby made by any
broker, finder or like agent, if such claim or claims are based
in whole or in part on dealings with HRP. Nothing contained in
this section shall be deemed to create any rights in any third
party.
11.3 Publicity. The parties agree that no party shall,
with respect to this Agreement and the transactions contemplated
hereby, contact or conduct negotiations with public officials,
make any public pronouncements, issue press releases or otherwise
furnish information regarding this Agreement or the transactions
contemplated to any third party without the consent of the other
parties except with respect to HRP as may be required by law or
rules of the New York Stock Exchange, and except as may be
required in order to give governmental notices and secure
governmental approvals or exemptions in connection with health
care licenses or permits and Hart-Scott-Rodino notifications. No
party, or its employees, agents, attorneys, officers, directors
or shareholders, shall trade in the securities of HRP until a
public announcement of the transactions contemplated by this
Agreement has been made.
11.4 Execution of Additional Documents. From and after the
Closing, the Sellers and HRP shall, at the cost of the requesting
party, duly execute and deliver to the parties hereto all such
instruments and documents, and shall take or cause to be taken
all such other and further action as any party shall reasonably
request to confirm the ownership and title to the Properties.
11.5 Notices. (a) Any and all notices, demands, consents,
approvals, offers, elections and other communications required or
permitted under this Agreement shall be deemed adequately given
if in writing and the same shall be delivered either in hand, by
telecopier with written acknowledgment of receipt, or by mail or
Federal Express or similar expedited commercial carrier,
addressed to the recipient of the notice, postpaid and registered
or certified with return receipt requested (if by mail), or with
all freight charges prepaid (if by Federal Express or similar
carrier).
(b) All notices required or permitted to be sent hereunder
shall be deemed to have been given for all purposes of this
Agreement upon the date of acknowledged receipt, in the case of a
notice by telecopier, and, in all other cases, upon the date of
receipt or refusal, except that whenever under this Agreement a
notice is either received on a day which is not a Business Day or
is required to be delivered on or before a specific day which is
not a Business Day, the day of receipt or required delivery shall
automatically be extended to the next Business Day.
(c) All such Notices shall be addressed,
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if to the Sellers to:
Marlin Management
Box 1103
150 South Champlain Street
Burlington, Vermont 05401
Attn: John F. Chapple, III
Patricia Rickard, Esq.
Telecopier No. (802) 862-6345
with a copy to:
Miller, Eggleston and Rosenberg, Ltd.
150 South Champlain Street
Burlington, Vermont 05401
Attn: Jon Eggleston, Esq.
Telecopier No. (802) 864-0328
If to HRP, to:
Health and Retirement Properties Trust
400 Centre Street
Newton, Massachusetts 02158
Attn: Mr. David J. Hegarty
Telecopier No. (617) 332-2261
with a copy to:
Sullivan & Worcester
One Post Office Square
Boston, Massachusetts 02109
Attn: Lena G. Goldberg, Esq.
Telecopier No. (617) 338-2880
(d) By notice given as herein provided, the parties hereto
and their respective successors and assigns shall have the right
from time to time and at any time during the term of this
Agreement to change their respective addresses effective upon
receipt by the other parties of such notice and each shall have
the right to specify as its address any other address within the
United States of America.
11.6 Waivers, Etc. Any waiver of any term or condition of
this Agreement, or of the breach of any covenant, representation
or warranty contained herein, in any one instance, shall not
operate as or be deemed to be or construed as a further or
continuing waiver of any other breach of such term, condition,
covenant, representation or warranty or any other term,
condition, covenant, representation or warranty, nor shall any
failure at any time or times to enforce or require performance of
any provision hereof operate as a waiver of or affect in any
manner such party's right at a later time to enforce or require
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performance of such provision or any other provision hereof.
This Agreement may not be amended, nor shall any waiver, change,
modification, consent or discharge be effected, except by an
instrument in writing executed by or on behalf of the party
against whom enforcement of any amendment, waiver, change,
modification, consent or discharge is sought.
11.7 Assignment; Successors and Assigns. This Agreement
shall not be assignable by any party without the written consent
of the other parties. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their
respective legal representatives, successors and permitted
assigns. This Agreement is not intended and shall not be
construed to create any rights in or to be enforceable in any
part by any other persons.
11.8 Severability. If any provision of this Agreement
shall be held or deemed to be, or shall in fact be, invalid,
inoperative or unenforceable as applied to any particular case in
any jurisdiction or jurisdictions, or in all jurisdictions or in
all cases, because of the conflict of any provision with any
constitution or statute or rule of public policy or for any other
reason, such circumstance shall not have the effect of rendering
the provision or provisions in question invalid, inoperative or
unenforceable in any other jurisdiction or in any other case or
circumstance or of rendering any other provision or provisions
herein contained invalid, inoperative or unenforceable to the
extent that such other provisions are not themselves actually in
conflict with such constitution, statute or rule of public
policy, but this Agreement shall be reformed and construed in any
such jurisdiction or case as if such invalid, inoperative or
unenforceable provision had never been contained herein and such
provision reformed so that it would be valid, operative and
enforceable to the maximum extent permitted in such jurisdiction
or in such case.
11.9 Counterparts; Amendments. This Agreement may be
executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute
one and the same instrument. This Agreement may not be amended
or modified in any respect other than by the written agreement of
all of the parties hereto.
11.10 Governing Law. This Agreement shall be governed by
and construed and enforced in accordance with the law (other than
the law governing conflict of law matters) of The Commonwealth of
Massachusetts, except that matters relating to real property law
as to the Properties located in Vermont shall be governed by and
construed and enforced in accordance with the law of the State of
Vermont, and matters relating to real property law as to the
Property located in New Hampshire shall be governed by and
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construed and enforced in accordance with the law of the State of
New Hampshire.
11.11 Jurisdiction. The parties hereby irrevocably submit
to the jurisdiction of any court sitting in The Commonwealth of
Massachusetts or any United States Federal Court sitting in
Boston, Massachusetts in any action or proceeding arising out of
or relating to this Agreement and the parties hereby irrevocably
agree that all claims in respect of any action or proceeding
arising out of or relating to this Agreement shall be heard and
determined in such state or Federal Court. The parties hereby
consent to and grant to any such court jurisdiction over the
person of such parties and over the subject matter of any such
dispute and agree that delivery or mailing of any process or
other papers in the manner provided in Section 11.5 or in such
other manner as may be permitted by law shall be valid and
sufficient service thereof.
11.12 Performance on Business Days. In the event the date
on which performance or payment of any obligation of a party
required hereunder is other than a Business Day, the time for
payment or performance shall automatically be extended to the
first Business Day following such date.
11.13 Attorneys Fees. If any lawsuit or arbitration or
other legal proceeding arises in connection with the
interpretation or enforcement of this Agreement, the prevailing
party therein shall be entitled to receive from the other party
the prevailing party's costs and expenses, including reasonable
attorneys' fees incurred in connection therewith, in preparation
therefor and on appeal therefrom, which amounts shall be included
in any judgment therein.
11.14 Section and Other Headings. The headings contained in
this Agreement are for reference purposes only and shall not in
any way affect the meaning or interpretation of this Agreement.
11.15 Entire Agreement. This Agreement (including all
schedules hereto and all agreements, instruments, other documents
and certificates delivered by the parties on the date hereof or
pursuant hereto) constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes
all prior agreements, arrangements, covenants, promises,
conditions, understandings, inducements, representations, and
negotiations, expressed or implied, written or oral, between them
as to such subject matter, including, without limitation, the
Original Agreement and that certain letter of intent dated July
13, 1994 and accepted by the Sellers on July 18, 1994.
11.16 Obligations of Sellers After the Closing. From and
after the Closing Date, the Sellers will not engage in any
business, will each promptly liquidate and dissolve as a
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corporation, and will each distribute the HRP Shares received by
it at the Closing to its shareholders in complete cancellation
and redemption of their shares of such Seller.
11.17 Limitation of Liability. The Declaration is duly
filed in the Office of 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 HRP shall be held to any personal liability, jointly
or severally, for any obligation of, or claim against, HRP. All
persons dealing with HRP, in any way, shall look only to the
assets of HRP for the payment of any sum or the performance of
any obligation.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed as a sealed instrument as of the date first above
written.
SELLERS:
BERLIN C.C., INC.
By: /s/ John F. Chapple III
Its: President
ST. JOHNSBURY C.C., INC.
By: /s/ John F. Chapple III
Its: President
ROCHESTER C.C., INC.
By: /s/ John F. Chapple III
Its: President
SPRINGFIELD C.C., INC.
By: /s/ John F. Chapple III
Its: President
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BURLINGTON C.C., INC.
By: /s/ John F. Chapple III
Its: President
BENNINGTON C.C., INC.
By: /s/ John F. Chapple III
Its: President
THE LP CORPORATION
By: /s/ John F. Chapple III
Its: President
AMERICAN HEALTH CARE, INC.
By: /s/ John F. Chapple III
Its: President
HRP:
HEALTH AND RETIREMENT PROPERTIES TRUST
By: /s/ Mark J. Finkelstein
Its: President