EXHIBIT 10.20
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Agreement") is made and given as of
October 25, 2002 by FSQ, INC., a Delaware corporation (the "Pledgor"), for the
benefit of SNH CHS PROPERTIES TRUST, a Maryland real estate investment trust
(together with its respective successors and assigns, the "Secured Party").
W I T N E S S E T H:
WHEREAS, pursuant to a Lease Agreement, dated as of the date hereof
(the "Lease"), the Secured Party leased to FVE-CHS LLC, a Delaware limited
liability company and wholly-owned subsidiary of Pledgor ("Tenant"), and the
Tenant leased from the Secured Party, certain premises as more particularly
described in the Lease, subject to and upon the terms and conditions set forth
in the Lease; and
WHEREAS, pursuant to two Guaranty Agreements, dated as of the date
hereof (the "Guaranty Agreements"), each of the Subtenants (as defined below),
being wholly owned subsidiaries of Pledgor, and Five Star Quality Care, Inc., a
Maryland corporation, being Pledgor's parent (together with the Subtenants, the
"Guarantors"), guaranteed to the Secured Party the payment and performance of
all of the obligations of the Tenant to the Secured Party with respect to the
Lease and other related documents, subject to and upon the terms and conditions
set forth therein; and
WHEREAS, pursuant to various Sublease Agreements as further described
on Exhibit A attached hereto (collectively, the "Subleases"), the Tenant has
subleased the premises demised under the Lease to the subtenants as identified
on said Exhibit A (collectively, the "Subtenants"), subject to and upon the
terms and conditions set forth in the Subleases; and
WHEREAS, Pledgor owns all of the outstanding membership interests in
each of the Subtenants and the Tenant (the Tenant and each of the Subtenants
collectively referred to as the "Pledged Tenants") and Pledgor desires to pledge
such membership interests to the Secured Party; and
WHEREAS, the Lease provides that any assignment or transfer of the
Tenant's interest under the Lease shall be subject to such assignee's or
transferee's delivery to the Secured Party of a pledge of all of the stock,
partnership, membership or other ownership interests of such assignee or other
transferee, which
pledge shall be in form and substance satisfactory to Landlord in its sole
discretion; and
WHEREAS, the Pledgor shall derive direct substantial benefit from the
transactions contemplated by the Lease, the Guaranty Agreements and the
Subleases;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the mutual receipt and legal sufficiency of which
are hereby acknowledged, and in accordance with the provisions of the Lease, the
Pledgor hereby agrees as follows:
Section 1. Certain Terms. Capitalized terms used and not otherwise
defined in this Agreement shall have the meanings ascribed to such terms in the
Lease. The Lease, the Guaranty Agreements and the other Incidental Documents are
herein collectively referred to as the "Transaction Documents".
Section 2. Pledge. The Pledgor hereby pledges to the Secured Party all
of the membership interests in the Pledged Tenants (the "Pledged Interests")
listed in Exhibit B attached hereto and all other shares of stock, shares of
beneficial interest, membership interests or other ownership interests in the
Pledged Tenants in which the Pledgor may have rights from time to time and any
other securities or other investment property and other collateral of the
Pledgor now owned or hereafter acquired which under this Agreement are required
to be pledged to the Secured Party, and in each case, all certificates
representing such Pledged Interests or other investment property or collateral,
and all rights, options, warrants, stock or other securities or other property
which may hereafter be received, receivable or distributed in respect of the
Pledged Interests, together with all proceeds of the foregoing, including,
without limitation, all dividends, cash, notes, securities or other property
from time to time acquired, receivable or otherwise distributed in respect of,
or in exchange for, the foregoing, (the Pledged Interests and any additional
securities or collateral pledged hereunder, collectively, the "Pledged
Collateral"), and the Pledgor hereby grants to the Secured Party a security
interest in all of the Pledged Collateral and the proceeds thereof as security
for the due and punctual payment and performance of the Secured Obligations (as
hereinafter defined).
Pledgor's membership interests in the Pledged Tenants are not evidenced
by any certificates or other instruments. If in the future Pledgor possesses or
controls any certificates or
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other instruments representing the Pledged Collateral, Pledgor shall immediately
and without notice deliver the same to the Secured Party together with undated
stock powers endorsed in blank, as security for the payment and performance of
all of the Secured Obligations.
Section 3. Secured Obligations. For purposes of this Agreement, the
term "Secured Obligations" shall mean the payment and performance of each and
every obligation of the Tenant and the Guarantors under the Transaction
Documents or relating thereto, whether now existing or hereafter arising, and
including, without limitation, the payment of the full amount of the Rent
payable under the Lease.
Section 4. Representations of the Pledgor. Pledgor covenants that the
Pledged Interests are duly and validly pledged to the Secured Party in
accordance with law and Pledgor shall warrant and defend the Secured Party's
right, title and security interest in and to the Pledged Interests against the
claims and demands of all persons whomsoever. Pledgor represents and warrants to
the Secured Party that Pledgor has good and marketable title to all the Pledged
Interests pledged by it hereunder, free and clear of all claims, mortgages,
pledges, liens, security interests and other encumbrances of every nature
whatsoever; that the Pledged Interests are not subject to any restriction on
transfer contained in the Certificates of Formation, Limited Liability Company
Agreements or any other charter documents of the Pledged Tenants or in any
agreement or instrument to which the Pledged Tenants or Pledgor is a party or by
which the Pledged Tenants or Pledgor is bound which would prohibit or restrict
the pledge of the Pledged Interests hereunder or the disposition thereof upon
default hereunder; that all of the Pledged Interests have been duly and validly
issued and are fully paid for and nonassessable; and that the Pledged Interests
constitute all of the presently issued and outstanding shares of the membership
interests of the Pledged Tenants.
Section 5. Covenants of the Pledgor. Pledgor hereby covenants and
agrees that it shall not sell, convey or otherwise dispose of any of the Pledged
Collateral nor create, incur or permit to exist any pledge, mortgage, lien,
charge, encumbrance or any security interest whatsoever with respect to any of
the Pledged Collateral or the proceeds thereof, other than the liens on and
security interests in the Pledged Collateral created hereby. Pledgor further
covenants and agrees that it shall not consent to or approve the admission of
any new member in the Pledged Tenants. Pledgor further covenants and agrees
that,
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until the Secured Obligations are paid in full, Pledgor shall not change the
state of its organization or its name without providing the Secured Party with
thirty (30) days' prior written notice and making all filings and taking all
such other actions as the Secured Party determines are necessary or appropriate
to continue or perfect the security interest granted hereunder.
Section 6. Filing of financing statements etc. Pledgor authorizes the
Secured Party to file from time to time one or more financing statements
describing the Pledged Collateral. Pledgor will cooperate with the Secured Party
at its request from time to time in obtaining control agreements in form and
substance reasonably satisfactory to the Secured Party with respect to any
collateral investment property, deposit accounts, or other Pledged Collateral as
to which the Secured Party determines such agreements are necessary or
appropriate to perfect the security interest granted hereunder.
Section 7. Distributions, Etc. Upon the dissolution, winding up,
liquidation or reorganization of any Pledged Tenant, whether in bankruptcy,
insolvency or receivership proceedings or upon an assignment for the benefit of
creditors or any other marshalling of the assets and liabilities of any Pledged
Tenant, if any sum shall be paid or any property shall be distributed upon or
with respect to any of the Pledged Collateral, such sum shall be paid over to
the Secured Party, to be held as collateral security for the Secured
Obligations. If any dividend shall be declared on any of the Pledged Collateral
(excluding cash dividends), or any share of beneficial interest or fraction
thereof shall be issued pursuant to any split of beneficial interests involving
any of the Pledged Collateral, or any distribution of capital shall be made on
any of the Pledged Collateral, or any property shall be distributed upon or with
respect to the Pledged Collateral pursuant to recapitalization or
reclassification of the capital of any Pledged Tenant, the shares or other
property so distributed shall be delivered to the Secured Party to be held as
collateral security for the Secured Obligations.
Section 8. Event of Default. For purposes of this Agreement, the term
"Event of Default" shall mean (a) the occurrence of an Event of Default under
the Transaction Documents; (b) the failure of the Guarantors to comply with any
of their covenants or obligations under the Guaranty Agreements and the
continuation thereof for a period of ten (10)
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Business Days after written notice thereof; (c) the failure of Pledgor to comply
with any of its covenants or obligations under this Agreement and the
continuation thereof for a period of ten (10) Business Days after written notice
thereof; or (d) any representation or warranty contained herein or made by
Pledgor in connection herewith shall prove to have been false or misleading in
any material respect when made.
Section 9. Remedies. (a) Upon the occurrence and during the continuance
of an Event of Default, the Secured Party may cause all or any of the Pledged
Collateral to be transferred into its name or into the name of its nominee or
nominees, subject to the provisions of the Uniform Commercial Code or other
applicable law.
(b) Upon the occurrence and during the continuance of an Event of
Default, the Secured Party shall be entitled to exercise the voting power with
respect to the Pledged Collateral, to receive and retain, as collateral security
for the Secured Obligations, any and all dividends or other distributions at any
time and from time to time declared or made upon any of the Pledged Collateral,
and to exercise any and all such rights of payment, conversion, exchange,
subscription or any other rights, privileges or options pertaining to the
Pledged Collateral as if it were the absolute owner thereof, including, without
limitation, all such rights under the Certificates of Formation, Limited
Liability Company Agreements or any other charter documents of any Pledged
Tenant, and further including, without limitation, the right to exchange, at its
discretion, any and all of the Pledged Collateral upon the merger,
consolidation, reorganization, recapitalization or other readjustment of such
Pledged Tenant, upon the exercise of any such right, privilege or option
pertaining to the Pledged Collateral, and in connection therewith, to deposit
and deliver any and all of the Pledged Collateral with any committee,
depositary, transfer agent, registrar or other designated agency upon such terms
and conditions as the Secured Party may determine.
(c) Upon the occurrence and during the continuance of an Event of
Default, the Secured Party shall have all of the rights and remedies of a
secured party under the Uniform Commercial Code or other applicable law and
shall have the right to sell, resell, assign and deliver all or any of the
Pledged Collateral in one or more parcels at any exchange or broker's board or
at public or private sale. The Secured Party shall give Pledgor at least ten
(10) days' prior written notice of the time and place of any public sale thereof
or of the time after which any private sale or any other intended disposition
thereof is to be made. Any such notice shall be deemed to meet any requirement
hereunder or under any applicable law (including the Uniform
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Commercial Code) that reasonable notification be given of the time and place of
such sale or other disposition. Such notice may be given without any demand of
performance or other demand, all such demands being hereby expressly waived by
the Pledgor to the extent permitted by applicable law. All such sales shall be
at such commercially reasonable price or prices as the Secured Party shall deem
best and either for cash or on credit or for future delivery (without assuming
any responsibility for credit risk). At any such sale or sales, the Secured
Party may purchase any or all of the Pledged Collateral to be sold thereat upon
such terms as the Secured Party may deem best. Upon any such sale or sales, the
Pledged Collateral so purchased shall be held by the purchaser absolutely free
from any claims or rights of any kind or nature of the Pledgor, including any
equity of redemption and any similar rights, all such equity of redemption and
any similar rights being hereby expressly waived and released by the Pledgor to
the extent permitted by applicable law. In the event any consent, approval or
authorization of any governmental agency will be necessary to effectuate any
such sale or sales, the Pledgor shall execute, and hereby agrees to cause the
applicable Pledged Tenant to execute, all such applications or other instruments
as may be required. The proceeds of any such sale or sales, together with any
other additional collateral security at the time received and held hereunder,
shall be received and applied: first, to the payment of all costs and expenses
of such sale, including attorneys' fees; and second, to the payment of the
Secured Obligations in such order of priority as the Secured Party shall
reasonably determine; and any surplus thereafter remaining shall be paid to the
Pledgor or to whomever may be legally entitled thereto (including, if
applicable, any subordinated creditor of Pledgor).
Pledgor recognizes that the Secured Party may be unable to effect a
public sale of all or a part of the Pledged Collateral by reason of certain
prohibitions contained in the Securities Act of 1933, and may be compelled to
resort to one or more private sales to a restricted group of purchasers who will
be obliged to agree, among other things, to acquire such Pledged Collateral for
their own accounts, for investment and not with a view to the distribution or
resale thereof. Pledgor agrees that private sales so made may be at prices and
upon other terms less favorable to the seller than if such Pledged Collateral
were sold at public sales, and that the Secured Party shall have no obligation
to delay sale of any such Pledged Collateral for the period of time necessary to
permit such Pledged Collateral to be registered for public sale under the
Securities Act of 1933. Pledgor agrees that private sales made under the
foregoing
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circumstances may be deemed to have been made in a commercially reasonable
manner. Nothing herein shall be deemed to require the Pledgor to effect a
registration of the Pledged Collateral under the Securities Act of 1933.
(d) Upon the occurrence and during the continuance of any Event of
Default, the Secured Party, in its discretion, may demand, sue for and/or
collect any money or property at any time due, payable or receivable, to which
it may be entitled hereunder, on account of or in exchange for any of the
Pledged Collateral. Upon the occurrence and during the continuance of any Event
of Default, the Secured Party shall further have the right, for and in the name,
place and stead of Pledgor, to execute endorsements, assignments, or other
instruments of conveyance or transfer with respect to all or any of the Pledged
Collateral.
(e) The Secured Party shall not be obligated to do any of the acts
hereinabove authorized and in the event that the Secured Party elects to do any
such act, the Secured Party shall not be responsible to Pledgor, other than for
negligence or willful misconduct.
(f) The Secured Party shall have no obligation to marshal any assets in
favor of Pledgor, or against or in payment of the Secured Obligations or any
other obligation owed to the Secured Party by Pledgor or any other person.
Section 10. Rights of Secured Party. No course of dealing between
Pledgor and the Secured Party nor any failure to exercise, nor any delay in
exercising, on the part of the Secured Party, any right, power or privilege
hereunder or under any of the Secured Obligations, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or thereunder preclude any other or further exercise thereof
or the exercise of any other right, power or privilege. The rights and remedies
herein provided and provided under any of the Secured Obligations are cumulative
and are in addition to, and not exclusive of, any rights or remedies provided by
law, including, without limitation, the rights and remedies of a Secured Party
under the Uniform Commercial Code.
Section 11. Assignment, Etc. No waiver by the Secured Party or by any
other holder of Secured Obligations of any default shall be effective unless in
writing nor operate as a waiver of any other default or of the same default on a
future occasion. In the event of a sale or assignment by the Secured Party of
its interests under the Transaction Documents, the
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Secured Party may assign or transfer its rights and interests under this
Agreement in whole or in part to the purchaser or assignee of such interests,
whereupon such purchaser or purchasers shall become vested with all of the
powers and rights given to the Secured Party hereunder, and the Secured Party
shall thereafter be forever released and fully discharged from any liability or
responsibility thereafter arising hereunder with respect to the rights and
interests so assigned.
Section 12. Duty of Secured Party. Beyond the exercise of reasonable
care to assure the safe custody of the Pledged Collateral while held hereunder,
the Secured Party shall have no duty or liability to collect any sums due in
respect thereof or to protect or preserve rights pertaining thereto, and shall
be relieved of all responsibility for the Pledged Collateral upon surrendering
the same to Pledgor.
Section 13. Waivers, Etc. To the extent permitted by applicable law,
Pledgor, on its own behalf and on behalf of its successors and assigns, hereby
waives presentment, demand, payment, notice of dishonor, protest and, except as
otherwise provided herein, all other demands and notices in connection with this
Agreement or the enforcement of the rights of the Secured Party hereunder or in
connection with any Secured Obligations. The Secured Party may release,
supersede, exchange or modify any collateral security it may from time to time
hold and release, surrender or modify the liability of any third party without
giving notice hereunder to Pledgor. The Secured Party shall be under no duty to
exhaust its rights against any such collateral security or any such third party
before realizing on the Pledged Collateral. Such modifications, changes,
renewals, releases or other actions shall in no way affect Pledgor's obligations
hereunder.
Pledgor further waives any right it may have under the Constitution of
the Commonwealth of Massachusetts (or under the constitution of any other state
in which the any of the Pledged Collateral may be located), or under the
Constitution of the United States of America, to notice (except for notice
specifically required hereby) or to a judicial hearing prior to the exercise of
any right or remedy provided by this Agreement to the Secured Party, and waives
its rights, if any, to set aside or invalidate any sale duly consummated in
accordance with the foregoing provisions hereof on the grounds (if such be the
case) that the sale was consummated without a prior judicial hearing. PLEDGOR'S
WAIVERS UNDER THIS SECTION 13 HAVE BEEN MADE VOLUNTARILY, INTELLIGENTLY AND
KNOWINGLY AND AFTER THE PLEDGOR
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HAS BEEN APPRISED AND COUNSELED BY ITS ATTORNEYS AS TO THE NATURE THEREOF AND
ITS POSSIBLE ALTERNATIVE RIGHTS.
Section 14. Further Assurances as to Collateral; Attorney-in-Fact. From
time to time hereafter, Pledgor shall execute and deliver, or will cause to be
executed and delivered, such additional instruments, certificates or documents
(including, without limitation, financing statements, renewal statements,
collateral assignments and other security documents), and shall take all such
actions, as the Secured Party may reasonably request, for the purposes of
implementing or effectuating the provisions of this Agreement or of more fully
perfecting or renewing the Secured Party's rights with respect to the Pledged
Collateral (or with respect to any additions thereto or replacements or proceeds
thereof or with respect to any other property or assets hereafter acquired by
the Pledgor which may be deemed to be a part of the Pledged Collateral) pursuant
hereto and thereto. The Secured Party is hereby appointed the attorney-in-fact,
with full power of substitution, of Pledgor for the purpose of carrying out the
provisions of this Agreement and taking any action, including, without
limitation, executing, delivering and filing applications, certificates,
instruments and other documents and papers with governmental authorities, and
executing any instruments, including without limitation, assignments,
conveyances and transfers which are required to be taken or executed by Pledgor
under this Agreement, on its behalf and in its name which appointment is coupled
with an interest, is irrevocable and durable and shall survive the subsequent
dissolution, disability or incapacity of the Pledgor.
Section 15. 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 electronic confirmation 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
electronic confirmation of 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
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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,
if to the Secured Party to:
c/o SNH CHS Properties Trust
400 Centre Street
Newton, Massachusetts 02458
Attn: President
[Telecopier No. (617) 796-8349]
if to Pledgor to:
c/o FSQ, INC.
400 Centre Street
Newton, Massachusetts 02458
Attn: President
[Telecopier No. (617) 796-8385]
(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 or to such other address as the party to whom such notice is directed
may have designated in writing to the other parties hereto.
Section 16. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, and the term "Secured Party" shall be deemed to include
any other holder or holders of any of the Secured Obligations. Where the context
so permits or requires, terms defined herein in the singular number shall
include the plural, and in the plural number, the singular. This Agreement may
be executed in any number of counterparts and by the different parties on
separate counterparts, each of which, when so executed and delivered, shall be
an original and all of which shall together constitute one and the same
agreement.
Section 17. Reinstatement. This Agreement shall continue to be
effective, or be reinstated, as the case may be, if at any time any amount
received by the Secured Party in respect of the
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Pledged Collateral is rescinded or must otherwise be restored or returned by the
Secured Party upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of Pledgor or upon the appointment of any intervenor or
conservator of, or trustee or similar official for the Pledgor or any
substantial part of its or property, or otherwise, all as though such payments
had not been made.
Section 18. Restrictions on Transfer. To the extent that any
restrictions imposed by the Certificates of Formation, Limited Liability Company
Agreements or any other charter documents of any Pledged Tenant or any other
document or instrument would in any way affect or impair the pledge of the
Pledged Collateral hereunder or the exercise by the Secured Party of any right
granted hereunder including, without limitation, the right of the Secured Party
to dispose of the Pledged Collateral upon the occurrence of any Event of
Default, Pledgor hereby waives such restrictions, and Pledgor hereby agrees that
it will take any action which the Secured Party may reasonably request in order
that the Secured Party may obtain and enjoy the full rights and benefits granted
to the Secured Party by this Agreement free of any such restrictions.
Section 19. Applicable Law. This Agreement and any other instruments
executed and delivered to evidence, complete or perfect the transactions
contemplated hereby and thereby shall be interpreted, construed, applied and
enforced in accordance with the laws of the Commonwealth of Massachusetts
applicable to contracts between residents of Massachusetts which are to be
performed entirely within Massachusetts regardless of (i) where any such
instrument is executed or delivered; or (ii) where any payment or other
performance required by any such instrument is made or required to be made; or
(iii) where any breach of any provision of any such instrument occurs, or any
cause of action otherwise accrues; or (iv) where any action or other proceeding
is instituted or pending; or (v) the nationality, citizenship, domicile,
principal place of business, or jurisdiction of organization or domestication of
any party; or (vi) whether the laws of the forum jurisdiction otherwise would
apply the laws of a jurisdiction other than the Commonwealth of Massachusetts;
or (vii) any combination of the foregoing.
Section 20. Arbitration. The Secured Party or Pledgor may elect to
submit any dispute hereunder that has an amount in controversy in excess of
$250,000 to arbitration hereunder. Any such arbitration shall be conducted in
Boston, Massachusetts in accordance with the Commercial Arbitration Rules of the
American Association then pertaining and the decision of the arbitrators
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with respect to such dispute shall be binding, final and conclusive on the
parties.
In the event the Secured Party or Pledgor shall elect to submit any
such dispute to arbitration hereunder, the Secured Party and Pledgor shall each
appoint and pay all fees of a fit and impartial person as arbitrator with at
least ten (10) years' recent professional experience in the general subject
matter of the dispute. Notice of such appointment shall be sent in writing by
each party to the other, and the arbitrators so appointed, in the event of their
failure to agree within thirty (30) days after the appointment of the second
arbitrator upon the matter so submitted, shall appoint a third arbitrator. If
either the Secured Party or Pledgor shall fail to appoint an arbitrator, as
aforesaid, for a period of twenty (20) days after written notice from the other
party to make such appointment, then the arbitrator appointed by the party
having made such appointment shall appoint a second arbitrator and the two (2)
so appointed shall, in the event of their failure to agree upon any decision
within thirty (30) days thereafter, appoint a third arbitrator. If such
arbitrators fail to agree upon a third arbitrator within forty five (45) days
after the appointment of the second arbitrator, then such third arbitrator shall
be appointed by the American Arbitration Association from its qualified panel of
arbitrators, and shall be a person having at least ten (10) years' recent
professional experience as to the subject matter in question. The fees of the
third arbitrator and the expenses incident to the proceedings shall be borne
equally between the Secured Party and Pledgor, unless the arbitrators decide
otherwise. The fees of respective counsel engaged by the parties, and the fees
of expert witnesses and other witnesses called for the parties, shall be paid by
the respective party engaging such counsel or calling or engaging such
witnesses.
The decision of the arbitrators shall be rendered within thirty (30)
days after appointment of the third arbitrator. Such decision shall be in
writing and in duplicate, one counterpart thereof to be delivered to the Secured
Party and one to Pledgor. A judgment of a court of competent jurisdiction may be
entered upon the award of the arbitrators in accordance with the rules and
statutes applicable thereto then obtaining.
The Secured Party and Pledgor acknowledge and agree that, to the extent
any such dispute shall involve any Manager and be subject to arbitration
pursuant to such Manager's Management Agreement, the Secured Party and Pledgor
shall cooperate to
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consolidate any such arbitration hereunder and under such Management Agreement
into a single proceeding.
Section 21. Severability. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby, but this
Agreement shall be reformed and construed and enforced to the maximum extent
permitted by applicable law.
Section 22. Entire Contract. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and shall supersede and take the place of any other instruments purporting to be
an agreement of the parties hereto relating to the subject matter hereof.
Section 23. Headings; Counterparts. Headings in this Agreement are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof. This Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute one
instrument, and in pleading or proving any provision of this Agreement, it shall
not be necessary to produce more than one of such counterparts.
Section 24. Nonliability of Trustees. THE DECLARATION OF TRUST
ESTABLISHING THE SECURED PARTY, 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 "SNH CHS
PROPERTIES TRUST" REFERS TO THE TRUSTEES UNDER SUCH DECLARATION COLLECTIVELY AS
TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER,
SHAREHOLDER, EMPLOYEE OR AGENT OF THE SECURED PARTY SHALL BE HELD TO ANY
PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF OR CLAIM
AGAINST, THE SECURED PARTY. ALL PERSONS DEALING WITH THE SECURED PARTY, IN ANY
WAY, SHALL LOOK ONLY TO THE ASSETS OF THE SECURED PARTY FOR THE PAYMENT OF ANY
SUM OR THE PERFORMANCE OF ANY OBLIGATION.
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WITNESS the execution hereof under seal as of the date above first
written.
PLEDGOR:
FSQ, INC.
a Delaware corporation
By: /s/ Bruce J. Mackey Jr.
-------------------------------------
Bruce J. Mackey Jr.
Its: Treasurer and Chief Financial Officer
SECURED PARTY:
SNH CHS Properties Trust,
a Maryland real estate investment trust
By: /s/ John R. Hoadley
-------------------------------------
John R. Hoadley
Its: Treasurer
EXHIBIT A
Subleases
1. Sublease Agreement, dated October 25, 2002, by and between FVE-CHS LLC,
a Delaware limited liability company, and Five Star Quality Care-MD,
LLC, a Delaware limited liability company.
2. Sublease Agreement, dated October 25, 2002, by and between FVE-CHS LLC, a
Delaware limited liability company, and Five Star Quality Care-NC, LLC,
a Delaware limited liability company.
3. Sublease Agreement, dated October 25, 2002, by and between FVE-CHS LLC, a
Delaware limited liability company, and Five Star Quality Care-VA, LLC,
a Delaware limited liability company.
EXHIBIT B
Pledged Interests
All of Pledgor's membership Interests in the following entities:
1. Five Star Quality Care-MD, LLC
2. Five Star Quality Care-NC, LLC
3. Five Star Quality Care-VA, LLC
4. FVE-CHS, LLC