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EXHIBIT 10.44
LOAN AGREEMENT
THIS LOAN AGREEMENT, dated as of November 19, 2004, is among Senior Housing
Properties Trust, a Maryland real estate investment trust ("SNH"), with a
principal place of business at 400 Centre Street, Newton, MA 02458, Five Star
Quality Care, Inc., a Maryland corporation ("FVE"), with a principal place of
business at 400 Centre Street, Newton, MA 02458, and FSQ/LTA Holdings Inc., a
Delaware corporation and a wholly owned subsidiary of FVE ("FSQ/LTA"), with a
principal place of business at 400 Centre Street, Newton, MA 02458.
RECITAL
Pursuant to an Agreement and Plan of Merger dated as of September 23, 2004
(the "AGREEMENT"), by and among FVE, FVE Acquisition Inc. ("SUB"), and LTA
Holdings, Inc. ("LTA"), Sub was merged with and into LTA and LTA changed its
corporate name to FSQ/LTA Holdings Inc. Capitalized terms used in this Loan
Agreement and not defined herein have the meanings given therefor in the
Agreement.
In connection with the Merger and pursuant to a letter agreement dated
September 23, 2004 (the "LETTER"), SNH loaned Sub the principal amount of
$117,000,000, evidenced by a promissory note dated November 17, 2004 (the
"ORIGINAL NOTE").
In connection with the Agreement, SNH (directly or through one or more
subsidiaries) agreed to purchase the Company Facilities and associated real
property ("FACILITIES") as described in the Letter immediately after the
Closing. Pursuant to the Original Note, contemporaneously with the sale of those
Facilities, the unpaid principal together with accrued interest was to be
prepaid.
FSQ/LTA desires to retain the Facilities listed on Exhibit A.
AGREEMENT
NOW, THEREFORE, it is agreed:
1.1 PURCHASE. Notwithstanding the obligation of SNH to purchase the
Facilities pursuant to the Letter, SNH will not purchase the Facilities listed
on Exhibit A immediately after the Closing and those Facilities will be retained
by FSQ/LTA.
1.2 ORIGINAL NOTE, NEW NOTE, MORTGAGE. Because FSQ/LTA will retain the
Facilities listed on Exhibit A, the Original Note will be prepaid only to the
extent of the proceeds of the sale of the Facilities purchased by SNH and the
remaining principal balance of $16,849,000 will be paid by issuance of FSQ/LTA's
and FVE's joint and several promissory note in the form of Exhibit B ("NEW
NOTE"). The obligations of FSQ/LTA and FVE under the New Note will be guaranteed
by FSQ/LTA's wholly-owned subsidiaries, Morningside of Decatur, L.P.,
Morningside of Greenwood, L.P., Morningside of Belmont, LLC and Morningside of
Springfield, LLC and by FVE's wholly-owned subsidiary, FSQ Villa at Riverwood
Business Trust, which guaranty will be in the form of Exhibit D and secured by
mortgages on real property owned by each of the guarantors.
1.3 SUBSEQUENT PURCHASE. At any time on or before May 2, 2005, at the
request of FSQ/LTA, SNH (directly or through one or more subsidiaries) will
enter into a sale-leaseback transaction with respect to one or more of the
Facilities listed on Exhibit A for the applicable purchase price set forth on
Exhibit A and otherwise on substantially the same terms and conditions as the
purchase and lease of the other Facilities.
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1.4 EXPENSES. FVE and FSQ/LTA, jointly and severally, agree to pay on
demand and upon receipt of an invoice therefor, all out-of-pocket expenses of
SNH arising in connection with the enforcement of its rights under this
Agreement, including the reasonable fees and expenses of counsel.
1.5 CONSENT TO AMENDMENTS. This Agreement may not be amended without the
written consent of each of SNH, FVE and FSQ/LTA.
1.6 ENTIRE AGREEMENT. This Agreement and the New Note embody the entire
agreement and understanding between SNH, FVE and FSQ/LTA and supersede all prior
agreements and understandings relating to the subject matter hereof and thereof.
1.7 SUCCESSORS AND ASSIGNS. All covenants and other agreements in this
Agreement contained by or on behalf of any of the parties hereto shall bind and
inure to the benefit of the respective successors and assigns of such party;
provided neither FVE nor FSQ/LTA may delegate the performance of any of its
obligations hereunder.
1.8 NOTICES. All notices and other written communications provided for
hereunder shall be given in writing and delivered in person or sent by
recognized overnight delivery service (with charges prepaid) to the address set
forth for any of SNH, FVE or FSQ/LTA in the Preamble.
1.9 DESCRIPTIVE HEADINGS. The descriptive headings of the several
Sections of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
1.10 GOVERNING LAW. THIS AGREEMENT IS TO BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF
THE COMMONWEALTH OF MASSACHUSETTS (WITHOUT GIVING EFFECT TO ANY LAWS OR RULES
RELATING TO CONFLICTS OF LAWS THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF
ANY JURISDICTION OTHER THAN THE COMMONWEALTH OF MASSACHUSETTS).
1.11 ARBITRATION. SNH or FVE and FSQ/LTA (FVE and FSQ/LTA, for purposes
of this Section 1.11, being referred to individually and collectively as "FVE")
may elect to submit any dispute hereunder that has an amount in controversy in
excess of $250,000 to arbitration. 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 with
respect to such dispute shall be binding, final and conclusive on the parties.
In the event SNH or FVE shall elect to submit any such dispute to
arbitration hereunder, SNH and FVE 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 SNH or FVE 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
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shall be borne equally between SNH and FVE, 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 SNH and one to FVE. 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.
1.12 COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, and it shall
not be necessary in making proof of this Agreement to produce or account for
more than one such counterpart.
1.13 NON-LIABILITY OF TRUSTEES. THE DECLARATION OF TRUST ESTABLISHING
SNH, 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 "SENIOR HOUSING 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 SNH SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY,
FOR ANY OBLIGATION OF, OR CLAIM AGAINST, SNH. ALL PERSONS DEALING WITH LENDER,
IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF SNH FOR THE PAYMENT OF ANY SUM OR
THE PERFORMANCE OF ANY OBLIGATION.
[SIGNATURE PAGE FOLLOWS]
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EXECUTED under seal as of the date first above written.
Senior Housing Properties Trust
By: /s/ John R. Hoadley
--------------------------------------------
Name: John R. Hoadley
Title: Treasurer and Chief Financial Officer
FSQ/LTA Holdings Inc.
By: /s/ Bruce J. Mackey Jr.
--------------------------------------------
Name: Bruce J. Mackey, Jr.
Title: Treasurer and Chief Financial Officer
Five Star Quality Care, Inc.
By: /s/ Bruce J. Mackey Jr.
--------------------------------------------
Name: Bruce J. Mackey, Jr.
Title: Treasurer and Chief Financial Officer
4
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EXHIBIT A
<Table>
<Caption>
FACILITIES PURCHASE PRICE
---------------------------------------------------------- --------------
1. Morningside of Decatur, Decatur, AL $ 2,684,000
2. Morningside of Greenwood, Greenwood, SC $ 2,901,000
3. Morningside of Belmont, Nashville, TN $ 8,143,000
4. Morningside of Springfield, Springfield, TN $ 3,121,000
</Table>
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EXHIBIT B
JOINT AND SEVERAL PROMISSORY NOTE
$16,849,000 November 19, 2004
Boston, Massachusetts
FOR VALUE RECEIVED, FSQ/LTA HOLDINGS INC., a Delaware corporation and FIVE
STAR QUALITY CARE, INC., a Maryland corporation (each a "MAKER" and
collectively, "MAKERS"), by this promissory note (this "NOTE"), hereby jointly
and severally promise unconditionally to pay to SENIOR HOUSING PROPERTIES TRUST,
a Maryland real estate investment trust ("LENDER"), or order, on May 2, 2005
(the "MATURITY DATE"), unless sooner paid or payable as herein provided, the
principal sum of Sixteen Million, Eight Hundred Forty-Nine Thousand Dollars
($16,849,000), or so much thereof as shall be advanced and remain unpaid
hereunder, and to pay interest on the principal sum remaining unpaid hereunder
from time to time from the date hereof until the principal shall have been paid
in full.
1. BASE INTEREST; TERMS OF PAYMENT.
(a) The unpaid principal balance hereof shall bear interest
("BASE INTEREST") from the date of this Note until paid at the Base Interest
Rate (this and other capitalized terms used and not otherwise defined herein
having the meanings ascribed to such terms in SECTION 10). All such interest
shall be calculated on the basis of a 360-day year consisting of twelve (12)
equal 30-day months, with partial months calculated on the basis of the actual
number of days elapsed.
(b) Base Interest shall be due and payable on the Maturity Date
or if sooner, on the date of prepayment pursuant to SECTION 4 or on
acceleration.
2. LATE FEE. If any payment required to be made to Lender hereunder
shall not be paid within ten (10) days after the date the same becomes due,
Makers shall, at the election of Lender, pay to Lender, in addition to all other
amounts payable hereunder and not as a penalty but as the agreed cost to Lender
resulting from such delay, a "late fee" equal to five percent (5%) of such
overdue amount.
3. DEFAULT RATE. From and after the occurrence and during the
continuance of an Event of Default, all amounts due and unpaid hereunder shall,
to the extent permitted by law, bear interest until paid, at the Default Rate;
such interest shall be calculated on the basis of a 360-day year consisting of
twelve equal 30-day months, with partial months calculated on the basis of the
actual number of days elapsed.
4. PREPAYMENT. The unpaid principal of this Note, together with
interest accrued thereon, may be prepaid in whole or part, at any time or from
time to time, without payment of any prepayment fee, penalty or cost.
5. IMPOSTS. Makers shall pay principal, interest and other amounts
under, and in accordance with the terms of, this Note, free and clear of, and
without deduction for, any and all present and future taxes, levies, imposts,
deductions, charges, withholdings, and all liabilities with respect thereto,
excluding income and franchise taxes payable by Lender to the United States of
America or any political subdivision thereof. In addition, Makers shall pay any
federal, state or local taxes on the acquisition of this Note by Lender and any
stamp or other taxes levied by any jurisdiction on the execution, delivery,
registration, performance and enforcement of this Note.
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6. PLACE AND MANNER OF PAYMENT. All payments of principal, interest and
other amounts payable on or in respect of this Note or the indebtedness
evidenced hereby shall be made to such account of Lender within the continental
United States of America as Lender shall from time to time designate by notice
to Makers not less than one (1) business day in advance, in lawful money of the
United States of America, in immediately available Federal funds.
7. COLLECTION OF COSTS. Should the indebtedness evidenced by this Note
or any part thereof be collected by action at law, or in bankruptcy,
receivership or other court proceedings, or should this Note be placed in the
hands of attorneys for collection after default, Makers agree to pay, upon
demand by Lender, in addition to principal and interest and other sums, if any,
due and payable hereon, court costs and reasonable attorneys' fees and other
reasonable collection charges, unless prohibited by law.
8. EVENTS OF DEFAULT. If any of the following events (each, an "EVENT
OF DEFAULT") shall have occurred:
(a) Makers fail to pay any principal of or interest on this Note
when and as the same shall become due and payable, whether at the Maturity Date,
upon prepayment pursuant to SECTION 4, by acceleration or otherwise; or
(b) either Maker is generally not paying its debts as such debts
become due or admits in writing that it is not able to pay its debts as such
debts become due or otherwise becomes insolvent; or files, or consents by answer
or otherwise to the filing against it of, a petition for relief or
reorganization or arrangement or any other petition in bankruptcy, for
liquidation or to take advantage of any bankruptcy or insolvency law of any
jurisdiction; or makes an assignment for the benefit of its creditors; or
consents to the appointment of a custodian, receiver, trustee or other officer
with similar powers with respect to it or with respect to any substantial part
of its property; or
(c) there is a default under the Second Amended and Restated
Lease Agreement dated as of November 19, 2004 among the parties identified as
landlord therein and Five Star Quality Care Trust; or
(d) a petition for relief or reorganization or arrangement or
any other petition in bankruptcy, for liquidation, dissolution or winding up of
either Maker or for the appointment of a custodian, receiver, trustee or other
officer with similar powers with respect to it or with respect to any
substantial part of its property to take advantage of any bankruptcy or
insolvency law of any jurisdiction is filed against either Maker without its
consent or other acquiescence and such petition is not dismissed within 60
days;then the entire unpaid principal of this Note, together with interest and
other amounts, if any, due hereon, shall in the case of clause (c) or (d) above,
or may at Lender's option in the case of clause (a) above, become immediately
due and payable (if not previously due and payable), without presentation,
protest or notice of any kind.
9. WAIVER BY MAKER. To the fullest extent permitted by applicable law,
Makers hereby absolutely and irrevocably waive presentment, demand, notice,
protest, and all other demands, notices and suretyship defenses generally, in
connection with the delivery, acceptance, performance, default or enforcement of
or under this Note.
10. DEFINITIONS. For all purposes of this Note, except as otherwise
expressly provided or unless the context otherwise requires, (a) the terms
defined in this section shall have the meanings assigned to them in this section
and include the plural as well as the singular, (b) all references in this Note
to designated "Sections" and other subdivisions are to the designated Sections
and other subdivisions of this Note, and (d) the words "herein," "hereof,"
"hereunder" and other words of similar import refer to this Note as a whole and
not to any particular Section or other subdivision.
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(a) "BASE INTEREST RATE" shall mean nine percent (9%) per annum.
(b) "DEFAULT RATE" shall mean the lesser of eighteen percent
(18%) per annum and the maximum rate permitted under applicable law.
(d) "EVENT OF DEFAULT" shall have the meaning given such term in
SECTION 8 of this Note.
(e) "MATURITY DATE" shall have the meaning given such term in
the first paragraph of this Note.
11. RIGHTS OF LENDER. The rights and remedies of Lender shall be
cumulative and concurrent, and may be pursued singly, successively, or together
in any order against Makers, all at the sole discretion of Lender. None of the
provisions hereof, and none of the rights or remedies of Lender hereunder on
account of any past or future defaults, shall be deemed to have been waived by
Lender's acceptance of any past due amount or by any indulgence granted by
Lender.
12. NOTICES. All notices and other communications which by any provision
of this Note are required or permitted to be given shall be given in writing and
shall be sent by express mail, postage prepaid, by recognized courier service or
personally delivered to the receiving party. All such notices and communications
shall be mailed, sent or delivered as follows:
(a) If to either Maker:
400 Centre Street
Newton, MA 02458
(b) If to Lender:
400 Centre Street
Newton, MA 02458
or to such other person(s) or address(es) as the party to receive any such
communication or notice may have designated by written notice to the other
party.
13. RELATIONSHIP. Notwithstanding any provision of this Note regarding
the determination and payment of amounts due and payable hereunder, it is
expressly understood and agreed by Makers and Lender that the relationship
between Makers on the one hand and Lender on the other hand shall be solely that
of debtor to creditor and not that of joint venturers, partners, tenants in
common or joint tenants.
14. LIMITATION ON INTEREST. All agreements between Makers and Lender
contained herein are hereby expressly limited so that in no contingency or event
whatsoever, whether by reason of acceleration of maturity of this Note, or
otherwise, shall the amount paid or agreed to be paid to Lender for the use,
forbearance or detention of the principal of this Note exceed the maximum
permissible under applicable law, the benefit of which may be asserted by Makers
as a defense, and if, from any circumstance whatsoever, fulfillment of any
provision of this Note, at the time performance of such provision shall be due,
shall involve transcending the limit of validity prescribed by law, or if from
any circumstances Lender should ever receive as interest under this Note, such
an excessive amount, then, IPSO FACTO, the amount which would be excessive
interest shall be first prorated, spread and allocated, to the fullest extent
permitted by law, to such period and principal as will cause such amount to
conform to and comply with applicable law, and the balance, if any, shall be
applied to the reduction of the principal
B-3
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of this Note and not to the payment of interest. This provision shall control
every other provision of this Note and all other agreements and instruments
between Makers and Lender relative hereto.
15. HOLDER. As used herein, the term "Lender" shall mean, in addition to
the initial payee hereof, each person from time to time who is an endorsee of
this Note or the bearer, if this Note is at the time payable to bearer.
16. GOVERNING LAW. Except as to matters regarding the internal affairs
of Lender and issues of or limitations on any personal liability of the
shareholders and trustees of Lender for obligations of Lender, as to which the
laws of the State of Maryland shall govern, this Note 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 (a) where
this Note is executed or delivered; or (b) where any payment or other
performance required by this Note is made or required to be made; or (c) where
any breach of any provision of this Note occurs, or any cause of action
otherwise accrues; or (d) where any action or other proceeding is instituted or
pending; or (e) the nationality, citizenship, domicile, principal place of
business, or jurisdiction of organization or domestication of any party; or (f)
whether the laws of the forum jurisdiction otherwise would apply the laws of a
jurisdiction other than The Commonwealth of Massachusetts; or (g) any
combination of the foregoing.
To the maximum extent permitted by applicable law, any action to enforce,
arising out of, or relating in any way to the provisions of this Note may be
brought and prosecuted in such court or courts located in The Commonwealth of
Massachusetts as is provided by law; and the parties consent to the jurisdiction
of said court or courts located in The Commonwealth of Massachusetts and to
service of process by registered mail, return receipt requested, or by any other
manner provided by law.
17. ARBITRATION. Lender or Maker(s) (each Maker, for purposes of this
Section 17, being referred to individually and collectively as "Maker") may
elect to submit any dispute hereunder that has an amount in controversy in
excess of $250,000 to arbitration. 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 with
respect to such dispute shall be binding, final and conclusive on the parties.
In the event Lender or Maker shall elect to submit any such dispute to
arbitration hereunder, Lender and Maker 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 Lender or Maker 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 Lender and Maker, 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.
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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 Lender and one to
Maker. 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.
18. NON-LIABILITY OF TRUSTEES. THE DECLARATION OF TRUST ESTABLISHING
LENDER, 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 "SENIOR HOUSING 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 LENDER SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR
SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, LENDER. ALL PERSONS DEALING
WITH LENDER, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF LENDER FOR THE PAYMENT
OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
SIGNATURES FOLLOW ON THE NEXT PAGE
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WITNESS the execution hereof under seal as of the date above first written.
FSQ/LTA HOLDINGS INC.
By:
--------------------------------------------
Name: Bruce J. Mackey, Jr.
Title: Treasurer and Chief Financial Officer
FIVE STAR QUALITY CARE, INC.
By:
--------------------------------------------
Name: Bruce J. Mackey, Jr.
Title: Treasurer and Chief Financial Officer
B-6
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EXHIBIT C
SUBSIDIARY GUARANTY
GUARANTY AGREEMENT (this "AGREEMENT"), dated November 19, 2004, is executed
and delivered by Morningside of Decatur, L.P., Morningside of Greenwood, L.P.,
Morningside of Belmont, LLC, Morningside of Springfield, LLC and FSQ Villa at
Riverwood Business Trust (each a "GUARANTOR" and collectively, the
"GUARANTORS"), in favor of Senior Housing Properties Trust ("SNH").
RECITAL:
Five Star Quality Care, Inc. and its wholly-owned subsidiary, FSQ/LTA
Holdings Inc. (each a "BORROWER" and collectively, the "BORROWERS"), have
entered into a Loan Agreement dated November 19, 2004 with SNH pursuant to which
the Borrowers have agreed to issue their joint and several promissory note due
May 2, 2005 in the original principal amount of $16,849,000 (the "NOTE"). Each
Guarantor is a direct or indirect subsidiary of a Borrower.
It is a condition of the Loan Agreement that the Guarantors enter into this
Agreement. Each Guarantor has determined that the Borrowers entering into the
Loan Agreement will directly or indirectly inure to the benefit of such
Guarantor, is in such Guarantor's best interest and in furtherance of such
Guarantor's business and is necessary and convenient to the conduct of such
business.
Each Guarantor is contemporaneously granting SNH a mortgage of its real
property to secure performance of its obligations under this Agreement.
NOW, THEREFORE, each Guarantor agrees, jointly and severally:
2. GUARANTY. Each Guarantor, jointly and severally with each other
Guarantor, unconditionally guaranties all obligations of the Borrowers under the
Note, whether now existing or hereafter incurred or created, joint or several,
direct or indirect, absolute or contingent, due or to become due, matured or
unmatured, liquidated or unliquidated, arising by contract, operation of law or
otherwise, including (a) all principal and interest (including any interest on
the Note which accrues after the commencement of any case, proceeding or other
action relating to the bankruptcy, insolvency or reorganization of the Company
or would have accrued but for the application of provisions of the Bankruptcy
Reform Act of 1978 (11 U.S.C. Sections 101-1330), as amended or supplemented
from time to time, and any successor statute, and any and all rules issued or
promulgated in connection therewith ("BANKRUPTCY CODE"); (b) all other amounts
(including any fees or expenses) payable by the Borrowers under the Note or the
Loan Agreement and (c) any renewals, refinancings or extensions of any of the
foregoing (collectively, the "OBLIGATIONS"), when due and at the place specified
therefor. This guaranty by each Guarantor is an absolute, unconditional and
continuing guaranty of the full and punctual payment and performance by the
Borrowers of the Obligations and not of their collectibility only and is in no
way conditioned upon any requirement that SNH first attempt to collect any of
the Obligations from the Borrowers or any other Guarantor or resort to any
security or other means of obtaining payment of any of the Obligations which SNH
now has or may acquire after the date hereof, or upon any other contingency
whatsoever, and the obligations of each Guarantor hereunder shall not be subject
to any counterclaim, setoff, recoupment or defense based upon any claim such
Guarantor may have against SNH, the Borrowers or any other Guarantor. Upon any
default by the Borrowers in the full and punctual payment
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and performance of the Obligations or any part thereof, the Guarantors will
promptly pay or cause to be paid to SNH, the amount of such Obligations which is
then due and payable. Payments by the Guarantors hereunder may be required to be
made on any number of occasions.
3. GUARANTOR'S FURTHER AGREEMENTS TO PAY. Each Guarantor further
agrees, jointly and severally with each other Guarantor, as principal Guarantor
and not as guarantor only, to pay to SNH forthwith upon demand, in lawful
currency of the United States of America and in funds immediately available to
SNH, all costs and expenses (including court costs and reasonable legal
expenses) incurred or expended by SNH in connection with the enforcement of this
Agreement, together with interest on amounts recoverable under this Agreement
from the time such amounts become due until payment at the interest rate then in
effect under the Note.
4. FREEDOM TO DEAL WITH THE COMPANY AND GUARANTORS. SNH shall be at
liberty, without giving notice to or obtaining the assent of any Guarantor and
without relieving any Guarantor of any liability hereunder, to deal with the
Borrowers and any other Guarantor in such manner as SNH in its sole discretion
deems fit, and to this end each Guarantor gives to SNH full authority in its
sole discretion to do any or all of the following things: (a) vary the terms and
grant extensions or renewals or waivers or other indulgences in respect of or
consent to the amendment of any of the terms of the Note, (b) vary, release,
exchange or discharge, wholly or partially, or delay in or abstain from
perfecting and enforcing any security or other guaranty or other means of
obtaining payment of any of the Obligations which SNH now has or acquires after
the date hereof, (c) accept partial payments from the Borrowers, (d) release or
discharge wholly or partially, the Borrowers, or either of them, or any other
Guarantor, and (e) compromise or make any settlement or other arrangement with
the Borrowers or any other Guarantor.
5. UNENFORCEABILITY OF OBLIGATIONS AGAINST THE BORROWERS OR OTHER
GUARANTORS. If for any reason either of the Borrowers has no legal existence or
is under no legal obligation to discharge any of the Obligations, or if any of
the moneys payable on the Obligations have become irrecoverable from the
Borrowers or any other Guarantor, by operation of law or for any other reason,
this Agreement shall nevertheless be binding on each Guarantor.
6. WAIVERS BY GUARANTOR. Each Guarantor waives notice of acceptance
hereof, notice of any action taken or omitted by SNH in reliance hereon, and any
requirement that SNH be diligent or prompt in making demands hereunder, giving
notice of any default by the Borrowers, or asserting any other right of SNH
hereunder. Each Guarantor also irrevocably waives, to the fullest extent
permitted by law, all defenses which at any time may be available in respect of
its obligations under this Agreement whether by virtue of any statute of
limitations, valuation, stay, moratorium law or other similar law now or
hereafter in effect or otherwise.
7. NO CONTEST; SUBORDINATION. So long as any Obligations remain unpaid
or undischarged, and notwithstanding any other provision of this Agreement, no
Guarantor will, by paying any sum hereunder (whether or not demanded by SNH) or
by any means or on any other ground, claim any setoff or counterclaim or
contribution against either of the Borrowers or any other Guarantor, or, in
proceedings under the Bankruptcy Code or insolvency proceedings, or of any
nature, prove in competition with SNH in respect of any payment or be entitled
to have the benefit of any counterclaim or proof of claim or dividend or payment
by or on behalf of the Borrowers or any other Guarantor, or the benefit of any
other security for any obligation of the Borrowers or any other Guarantor which,
now or hereafter, such Guarantor may hold or in which it may have a share.
Each Guarantor hereby agrees that all liabilities, obligations and
indebtedness now or hereafter owed by either of the Borrowers or any other
Guarantor to such Guarantor and that any security
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and mortgage interests which secure such liabilities, obligations, and
indebtedness, and all rights, remedies, powers, privileges and discretions of
such Guarantor in and to any collateral security now or hereafter granted by
either of the Borrowers or any other Guarantor to secure such liabilities,
obligations, and indebtedness are and shall be subject and subordinate to the
Obligations and to the rights, remedies, powers, privileges and discretions of
SNH under the Note and the Loan Agreement.
8. PREFERENCES; REVIVAL. To the extent that any payment on or proceeds
applied to the Obligations is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to a trustee,
receiver or any other party under any bankruptcy law, state or federal law,
common law or equitable cause, then, to the extent of such payment or proceeds
received, the obligations of each Guarantor under this Agreement which would
otherwise have been satisfied thereby shall be revived and continue in full
force and effect as if such payment or proceeds had never been received by SNH.
The provisions of this SECTION 7 shall survive the termination of this
Agreement.
9. AMENDMENTS, WAIVERS, ETC. No provision of this Agreement can be
changed, waived, discharged, or terminated except by an instrument in writing
signed by SNH and the Guarantors expressly referring to the provision of this
Agreement to which such instrument relates; and no such waiver shall extend to,
affect or impair any right with respect to any obligation of the Guarantors
under this Agreement which is not expressly dealt with therein. No course of
dealing or delay or omission on the part of SNH in exercising any right shall
operate as a waiver thereof or otherwise be prejudicial thereto.
10. MISCELLANEOUS.
10A. TERMINATION, ETC. This Agreement shall continue in effect, and the
obligations of the Guarantors hereunder shall not terminate or be released,
until each of the following shall have occurred: (i) SNH has received, and been
allowed to retain, payment in full of all amounts due on the Obligations, and
(ii) there shall have lapsed or been released by the passage of time or
otherwise, any right of the Borrowers, any Guarantor or any other person to
rescind, set aside or void any such payment for any reason.
10B. SUCCESSORS AND ASSIGNS. All covenants and other agreements herein by
or on behalf of the Guarantors shall bind their respective successors and
assigns, whether so expressed or not, and all such covenants and agreements, and
all other rights of SNH shall inure to the benefit of their successors and
assigns, provided no Guarantor shall have any right to assign its obligations
under this Agreement.
10C. DESCRIPTIVE HEADINGS. The descriptive headings of the several
paragraphs of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
10D. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF
THE COMMONWEALTH OF MASSACHUSETTS (WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAW).
10E. CONSENT TO JURISDICTION AND SERVICE; WAIVER OF TRIAL BY JURY. TO THE
EXTENT PERMITTED BY APPLICABLE LAW, EACH GUARANTOR HEREBY ABSOLUTELY AND
IRREVOCABLY CONSENTS AND SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS
OF THE COMMONWEALTH OF MASSACHUSETTS AND OF ANY FEDERAL COURT LOCATED IN SAID
JURISDICTION IN CONNECTION WITH ANY ACTIONS OR PROCEEDINGS BROUGHT AGAINST IT BY
ANY HOLDER ARISING OUT OF OR RELATING TO THIS AGREEMENT AND HEREBY IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF
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ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT.
EACH GUARANTOR HEREBY WAIVES AND AGREES NOT TO ASSERT IN ANY SUCH ACTION OR
PROCEEDING, IN EACH CASE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
CLAIM THAT (A) IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH
COURT, (B) IT IS IMMUNE FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR
NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION, EXECUTION
OR OTHERWISE) WITH RESPECT TO IT OR ITS PROPERTY, (C) ANY SUCH SUIT, ACTION OR
PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, OR (D) THIS AGREEMENT MAY NOT BE
ENFORCED IN OR BY ANY SUCH COURT. IN ANY SUCH ACTION OR PROCEEDING, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH GUARANTOR HEREBY ABSOLUTELY AND
IRREVOCABLY WAIVES TRIAL BY JURY AND PERSONAL IN HAND SERVICE OF ANY SUMMONS,
COMPLAINT, DECLARATION OR OTHER PROCESS AND HEREBY ABSOLUTELY AND IRREVOCABLY
AGREES THAT THE SERVICE MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN
RECEIPT REQUESTED, DIRECTED TO IT AT ITS ADDRESS SET FORTH IN OR FURNISHED
PURSUANT TO THE PROVISIONS OF THIS AGREEMENT, OR BY ANY OTHER MANNER PROVIDED BY
LAW. ANYTHING HEREINBEFORE TO THE CONTRARY NOTWITHSTANDING, ANY HOLDER MAY SUE
ANY GUARANTOR IN ANY OTHER APPROPRIATE JURISDICTION AND ANY PARTY MAY SUE ANY
OTHER PARTY ON A JUDGMENT RENDERED BY ANY COURT PURSUANT TO THE PROVISIONS OF
THE FIRST SENTENCE OF THIS SECTION 10E IN THE COURTS OF ANY COUNTRY, STATE OF
THE UNITED STATES OR PLACE WHERE SUCH OTHER PARTY OR ANY OF ITS PROPERTY OR
ASSETS MAY BE FOUND OR IN ANY OTHER APPROPRIATE JURISDICTION.
10F. SEVERABILITY. If any provision of this Agreement shall be held or
deemed to be, or shall in fact be, invalid, inoperative, illegal or
unenforceable as applied to any particular case in any jurisdiction because of
the conflicting 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, illegal 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, illegal 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,
illegal 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.
10G. NOTICES. All notices and other written communications as provided
for hereunder shall be given in writing and delivered in person by a recognized
overnight delivery service (with charges payable by the sender) and (i) if to
SNH, addressed to it at 400 Centre Street, Newton, MA 02458, or at such other
address as SNH shall have specified to the Guarantors in writing and (iii) if to
any Guarantor, addressed to it at 400 Centre Street, Newton, MA 02458 or at such
other address as such Guarantor shall specify to SNH in writing.
10H. REMEDIES CUMULATIVE. The rights and remedies of SNH herein provided
or provided under any other agreement or instrument, or otherwise available, are
cumulative, and are in addition to and not exclusive of, any rights and remedies
provided by law.
10I. SPECIFIC PERFORMANCE. Each Guarantor agrees that its obligations and
the rights of SNH hereunder may be enforced by specific performance hereof and
thereof and by temporary, preliminary and/or final injunctive relief relating
hereto and thereto, without necessity for proof by SNH that it would
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otherwise suffer irreparable harm, and Guarantor hereby consents to the issuance
of such specific and injunctive relief.
10J. CONTRIBUTION. If at any time there is more than one Guarantor, the
Guarantors hereby agree, among themselves, that if any Guarantor shall become an
Excess Funding Guarantor (as defined below) by reason of the payment by such
Guarantor of any Obligations, each other Guarantor shall, on demand of such
Excess Funding Guarantor (but subject to the next sentence), pay to such Excess
Funding Guarantor an amount equal to such Guarantor's Pro Rata Share (as defined
below) of the Excess Payment (as defined below) in respect of such Obligations.
The payment obligation of a Guarantor to any Excess Funding Guarantor under this
SECTION 10J shall be subordinate and subject in right of payment to the prior
payment in full of the obligations of such Guarantor under the other provisions
of this Guaranty, and such Excess Funding Guarantor shall not exercise any right
or remedy with respect to such excess until payment and satisfaction in full of
all such obligations. For purposes of this SECTION 10J, (i) "Excess Funding
Guarantor" shall mean, in respect of any Obligations, a Guarantor that has paid
an amount in excess of its Pro Rata Share of such Obligations, (ii) "Excess
Payment" shall mean, in respect of any Obligations, the amount paid by an Excess
Funding Guarantor in excess of its Pro Rata Share of such Obligations and (iii)
"Pro Rata Share" shall mean, for any Guarantor, the ratio (expressed as a
percentage) of (x) the present fair saleable value of the real property with
respect to which such Guarantor has given SNH a mortgage to secure such
Guarantor's obligations hereunder to (y) the amount by which the aggregate fair
saleable value of all the real property of all of the Guarantors with respect to
which the Guarantors have given SNH mortgages to secure the Guarantors'
obligations hereunder, all as of the date of this Agreement.
10K. ARBITRATION. Any of the Guarantors (each Guarantor, for purposes of
this Paragraph 10K, being referred to individually and collectively as
"Guarantor") or SNH may elect to submit any dispute hereunder that has an amount
in controversy in excess of $250,000 to arbitration. 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 with respect to such dispute shall be binding, final and
conclusive on the parties.
In the event Guarantor or SNH shall elect to submit any such dispute to
arbitration hereunder, Guarantor and SNH 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 Guarantor or SNH 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 Guarantor and SNH, 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
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to Guarantor and one to SNH. 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.
10L. NON-LIABILITY OF TRUSTEES. THE DECLARATION OF TRUST ESTABLISHING
SNH, 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 "SENIOR HOUSING 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 SNH SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY,
FOR ANY OBLIGATION OF, OR CLAIM AGAINST, LENDER. ALL PERSONS DEALING WITH SNH,
IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF SNH FOR THE PAYMENT OF ANY SUM OR
THE PERFORMANCE OF ANY OBLIGATION.
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IN WITNESS WHEREOF, each Guarantor has caused this Agreement to be executed
under seal as of the date first above written.
Morningside of Decator, L.P.
By: Lifetrust America, Inc.
By:
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Name: Bruce J. Mackey, Jr.
Title: Treasurer and Chief Financial Officer
Morningside of Greenwood, L.P.
By: Lifetrust America, Inc.
By:
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Name: Bruce J. Mackey, Jr.
Title: Treasurer and Chief Financial Officer
Morningside of Belmont, LLC
By:
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Name: Bruce J. Mackey, Jr.
Title: Treasurer and Chief Financial Officer
Morningside of Springfield, LLC
By:
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Name: Bruce J. Mackey, Jr.
Title: Treasurer and Chief Financial Officer
FSQ Villa at Riverwood Business Trust
By:
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Name: Bruce J. Mackey, Jr.
Title: Treasurer and Chief Financial Officer
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