EXHIBIT 2.1
PURCHASE AND SALE AGREEMENT
by and among
THCI MT, LLC
(Purchaser)
and
MEDITRUST HEALTHCARE CORPORATION
MEDITRUST MORTGAGE INVESTMENTS, INC.
(Sellers)
and
MEDITRUST OF MASSACHUSETTS
MEDITRUST OF BEDFORD, INC.
NEW MEDITRUST COMPANY LLC
SAN ▇▇▇▇▇▇▇ HEALTH CARE ASSOCIATES LIMITED PARTNERSHIP
(Subsidiaries)
and
MEDITRUST CORPORATION
(Meditrust)
Dated as of
December 20, 2000
TABLE OF CONTENTS
PAGE
ARTICLE 1 Definitions................................................ 2
ARTICLE 2 Agreement; Purchase Price.................................. 58
Section 2.1. Agreement to Sell and Purchase............................. 58
Section 2.2. Purchase Price............................................. 58
Section 2.3. Deposit.................................................... 58
ARTICLE 3 Conditions Precedent; Activities Prior
to Closing and Other Covenants........................... 59
Section 3.1. Conditions Precedent Favoring the Purchaser................ 59
Section 3.2. Conditions Precedent Favoring the Meditrust Entities....... 61
Section 3.3. Activities of the Meditrust Entities Prior to Closing...... 62
Section 3.4. Other Covenants............................................ 65
ARTICLE 4 Title, Survey and Other Due Diligence Matters.............. 77
Section 4.1. Access..................................................... 77
Section 4.2. Study Period............................................... 79
Section 4.3. Confidentiality............................................ 80
Section 4.4. Reporting.................................................. 81
ARTICLE 5 "AS IS" Transaction........................................ 82
ARTICLE 6 Casualty Damage or Condemnation............................ 83
Section 6.1. Risk of Loss............................................... 83
Section 6.2. Condemnation............................................... 84
Section 6.3. Cooperation................................................ 86
ARTICLE 7 Representations, Warranties and Covenants.................. 86
Section 7.1. Purchaser's Representations................................ 86
Section 7.2. Meditrust Parties' Representations......................... 87
Section 7.3. Meditrust Parties' Knowledge; Purchaser's Knowledge........ 100
ARTICLE 8 Closing.................................................... 101
Section 8.1. Closing.................................................... 101
Section 8.2. Sellers' Deliveries........................................ 102
Section 8.3. Purchaser's Deliveries..................................... 104
Section 8.4. Costs, Prorations and Post-Closing Tax Obligations......... 105
ARTICLE 9 Broker's Commission........................................ 109
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ARTICLE 10 Extension.................................................. 109
Section 10.1. Extension to Cure.......................................... 109
Section 10.2. Rejected Facilities........................................ 110
Section 10.3. Extension Due To An Injunction............................. 111
ARTICLE 11 Termination and Default.................................... 111
Section 11.1. Termination without Default................................ 111
Section 11.2. Purchaser's Default........................................ 111
Section 11.3. Sellers' Default........................................... 112
Section 11.4. Breach of Representations.................................. 113
Section 11.5. Termination Upon Achievement of the
Termination Threshold for the Purchaser.................. 113
Section 11.6. Termination Upon Achievement of the
Termination Threshold for the Meditrust Entities......... 113
ARTICLE 12 Miscellaneous.............................................. 113
Section 12.1. Entire Agreement........................................... 113
Section 12.2. Binding On Successors and Assigns.......................... 114
Section 12.3. Assignment by the Purchaser................................ 114
Section 12.4. Waiver..................................................... 114
Section 12.5. Governing Law.............................................. 114
Section 12.6. Counterparts............................................... 115
Section 12.7. Notices.................................................... 115
Section 12.8. Third Parties.............................................. 116
Section 12.9. Time Periods............................................... 117
Section 12.10. Modification of Agreement.................................. 117
Section 12.11. Further Assurances......................................... 117
Section 12.12. Descriptive Headings; Word Meaning......................... 117
Section 12.13. Time of the Essence........................................ 118
Section 12.14. Construction of Agreement.................................. 118
Section 12.15. Joint and Several Liability of the Meditrust Parties....... 118
Section 12.16. Severability............................................... 118
Section 12.17. No Recording............................................... 118
Section 12.18. No Implied Agreement....................................... 119
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EXHIBITS
Exhibit A-1 - Sun Transactions
Exhibit A-2 - Integrated Transactions
Exhibit A-3 - Genesis Transactions
Exhibit A-4 - HealthSouth Transaction
Exhibit A-5 - Lakeview Transactions
Exhibit A-6 - Mariner Transactions
Exhibit A-7 - Harborside Transactions
Exhibit B - Allocated Value Schedule
Exhibit C-1 - Sun Leases
Exhibit C-2 - Integrated Leases
Exhibit C-3 - Genesis Lease
Exhibit C-4 - Harborside Leases
Exhibit D - Sun Leased Properties
Exhibit E - Integrated Leased Properties
Exhibit F - Genesis Leased Properties
Exhibit G - Harborside Leased Properties
Exhibit H-1 - Newton, MA Land
Exhibit H-2 - Fresno, CA Land
Exhibit ▇-▇ - ▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇-▇ - ▇▇▇▇▇▇▇▇▇, CT Land
Exhibit ▇-▇ - ▇▇▇▇▇▇▇, ▇▇ Land
Exhibit ▇-▇ - ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇-▇ - ▇▇▇▇▇▇▇, ▇▇ Land
Exhibit H-8 - Gaithersburg, MD Land
Exhibit ▇-▇ - ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ Land
Exhibit H-10 - Wethersfield, CT Land
Exhibit ▇-▇▇ - ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇-▇▇ - ▇▇▇▇, ▇▇ Land
Exhibit ▇-▇▇ - ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ Land
Exhibit H-14 - Weymouth, MA Land
Exhibit H-15 - Holyoke, MA Land
Exhibit ▇-▇▇ - ▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇-▇▇ - ▇▇▇▇▇▇▇ Condominium Units
Exhibit H-18 - Bristol-New Bedford, MA Land
Exhibit H-19 - Millbury, MA Land
Exhibit H-20 - Lexington, MA Land
Exhibit ▇-▇▇ - ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ Land
Exhibit H-22 - Wilmington, MA Land
Exhibit H-23 - Peabody, MA Land
Exhibit H-24 - Randolph, MA Land
Exhibit ▇-▇▇ - ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ Land
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Exhibit H-26 - Camden, NJ Land
Exhibit H-27 - Northhampton, MA Land
Exhibit H-28 - Boston, MA Land
Exhibit H-29 - Brookline, MA Land
Exhibit H-30 - Stamford, CT Land
Exhibit H-31 - ▇▇▇▇▇▇▇, CO Land
Exhibit H-32 - Southern Connecticut Land
Exhibit ▇-▇▇ - ▇▇▇▇▇▇▇, ▇▇ Land
Exhibit ▇-▇▇ - ▇▇▇▇▇▇▇▇▇, ▇▇ Land
Exhibit H-35 - Beverly, MA Land
Exhibit H-36 - Cheshire, CT Land
Exhibit H-37 - Kentfield, CA Land
Exhibit I-1 - Alabaster, AL Land
Exhibit I-2 - Bellbrook, ▇▇ ▇▇▇▇
Exhibit I-3 - New London, ▇▇ ▇▇▇▇
Exhibit I-4 - ▇▇▇▇▇ Heights, ▇▇ ▇▇▇▇
Exhibit I-5 - West Carrolton, ▇▇ ▇▇▇▇
Exhibit I-6 - Erie, PA Land
Exhibit I-7 - Grand Blanc, MI Land
Exhibit I-8 - Kansas City, MO Land
Exhibit I-9 - Greensburg, PA Land
Exhibit ▇-▇▇ - ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ Land
Exhibit J-1 - ▇▇▇▇▇, WV Land
Exhibit J-2 - Ravenswood, WV Land
Exhibit ▇-▇ - ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ Land
Exhibit ▇-▇ - ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ Land
Exhibit J-5 - Sissonville, WV Land
Exhibit ▇-▇ - ▇▇▇▇ ▇▇▇▇▇, ▇▇ Land
Exhibit J-7 - Parkersburg, WV Land
Exhibit J-8 - Norristown, PA Land
Exhibit K - Tustin, CA Land
Exhibit L-1 - Effingham, NH Land
Exhibit L-2 - Waterford, WI Land
Exhibit M-1 - Ansonia, CT Land
Exhibit ▇-▇ - ▇▇▇▇▇▇▇▇▇▇, ▇▇ Land
Exhibit N-1 - Bedford, NH Land
Exhibit N-2 - Peterborough, NH Land
Exhibit N-3 - Keene, NH Land
Exhibit N-4 - Milford, NH Land
Exhibit N-5 - Milford, NH Land (Crestwood)
Exhibit N-6 - Winchester, NH Land
Exhibit N-7 - Bridgewater, NJ Land
Exhibit N-8 - Swanton, ▇▇ ▇▇▇▇
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Exhibit N-9 - Troy, ▇▇ ▇▇▇▇
Exhibit N-10 - New Haven, IN Land
Exhibit N-11 - Indianapolis, IN Land
Exhibit N-12 - Naples, FL Land
Exhibit N-13 - Venice, FL Land
Exhibit N-14 - Sarasota, FL Land
Exhibit N-15 - Palm Harbor, FL Land
Exhibit N-16 - Terre Haute, IN Land
Exhibit N-17 - Clearwater, FL Land
Exhibit N-18 - Oldsmar, FL Land
Exhibit N-19 - ▇▇▇▇▇ Edge Land
Exhibit O - Allonge
Exhibit P-1 - Assignment and Assumption of Loan Documents
Exhibit P-2 - Assignment and Assumption of Loan Documents Relating to Loans Subject to Bankruptcy
Proceedings
Exhibit Q-1 - Assignment of Claims
Exhibit Q-2 - Proofs of Claims
Exhibit R - Assignment of Limited Liability Company Membership Interest
Exhibit S - Brookline Ground Lessor's Estoppel Certificate
Exhibit T - Cash Conversion Letters
Exhibit U - Deposit Pledge Agreements
Exhibit V-1 - Genesis Bankruptcy Proceedings
Exhibit V-2 - Integrated Bankruptcy Proceedings
Exhibit V-3 - Mariner Bankruptcy Proceedings
Exhibit V-4 - Multicare Bankruptcy Proceedings
Exhibit V-5 - Sun Bankruptcy Proceedings
Exhibit V-6 - Manatee Springs Bankruptcy Proceedings
Exhibit W-1 - Intercreditor Agreements
Exhibit W-2 - Defaults and Notices of Default Under the Intercreditor Agreements
Exhibit W-3 - Written Waivers Relating To Intercreditor Agreement
Exhibit X - Letters of Credit
Exhibit Y-1 - Marlton Ground Lessor's Estoppel Certificate
Exhibit Y-2 - Defaults Under the Marlton Ground Lease
Exhibit Z - Meditrust Assignment and Assumption Agreements
Exhibit AA-1 - Notice to Borrower
Exhibit AA-2 - Notice to Lender
Exhibit AA-3 - Notice to Subtenant
Exhibit AA-4 - Notice to Tenant
Exhibit BB - Purchase Options
Exhibit CC - Rights of First Refusal
Exhibit DD - Stock
Exhibit EE-1 - Borrower Estoppel Certificate
Exhibit EE-2 - Tenant Estoppel Certificate
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Exhibit FF-1 - Wethersfield Ground Lessor's Estoppel Certificate
Exhibit FF-2 - Defaults Under Wethersfield Ground Lease
Exhibit GG - Certificate Regarding Buyer's Representations and Warranties
Exhibit HH - Certificate Regarding Sellers' Representations and Warranties
Exhibit II - Structure of the Subsidiaries
Exhibit JJ - New Meditrust-LLC's Leased Properties
Exhibit KK - Meditrust-MA's Leased Properties
Exhibit LL - Notices of Deficiencies
Exhibit MM - Contracts
Exhibit NN - Permits
Exhibit OO - Equitable Ownership Interests
Exhibit PP - Nondisturbance Agreements
Exhibit QQ - Contracts of Sale
Exhibit ▇▇-▇ - ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇-▇ - Litigation Against Tenants, Borrowers and Guarantors
Exhibit SS - Defaults Under HUD Financing Documents
Exhibit TT - Financial Statements
Exhibit UU - Lease Document Monetary Defaults
Exhibit VV - Loan Document Monetary Defaults
Exhibit WW - Lease Documents Schedule
Exhibit XX - Loan Documents Schedule
Exhibit YY-1 - Rent Currently Payable Under the Leases
Exhibit YY-2 - Prepaid Rent
Exhibit YY-3 - Written Waivers Relating To The Lease Documents
Exhibit ZZ-1 - Outstanding Principal Amounts and Interest Rates
Exhibit ZZ-2 - Prepaid Interest
Exhibit ZZ-3 - Written Waivers Relating To The Loan Documents
Exhibit AAA-1 - Modifiable Representations and Warranties
Exhibit AAA-2 - Modifiable Representations and Warranties That May Be Modified Only As To Certain Actions
Exhibit BBB - Conflicts
Exhibit CCC - Approvals
Exhibit DDD - Bradenton P&S
Exhibit EEE - Outstanding Tax Matters
vi
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement"), dated as of December
20, 2000, is entered into by and among MEDITRUST CORPORATION, a Delaware
corporation ("Meditrust"), MEDITRUST HEALTHCARE CORPORATION, a Delaware
corporation ("MHC"), MEDITRUST OF MASSACHUSETTS, a Massachusetts business trust
("Meditrust-MA"), MEDITRUST OF BEDFORD, INC., a Delaware corporation
("Meditrust-Bedford"), SAN ▇▇▇▇▇▇▇ HEALTH CARE ASSOCIATES LIMITED PARTNERSHIP, a
Delaware limited partnership (the "Fresno Partnership"), MEDITRUST MORTGAGE
INVESTMENTS , INC. a Delaware corporation ("MMI"), NEW MEDITRUST COMPANY LLC, a
Delaware limited liability company ("New Meditrust-LLC") and THCI MT, LLC, a
Delaware limited liability company (the "Purchaser").
WHEREAS, Meditrust, a publicly-traded real estate investment trust, and its
subsidiaries are in the business of investing in health care real estate assets
(such as skilled nursing facilities and rehabilitation facilities) by either (i)
acquiring such assets and then leasing them, on a triple net basis, to health
care operators or (ii) providing mortgage loans to health care operators, which
loans are secured by certain assets owned and/or leased by such operators;
WHEREAS, Meditrust, directly or indirectly, owns and controls MHC,
Meditrust-MA, Meditrust-Bedford, the Fresno Partnership, MMI and New
Meditrust-LLC (Meditrust and such other related entities are hereinafter
collectively referred to as the "Meditrust Entities");
WHEREAS, Meditrust has announced that Meditrust and its subsidiaries desire
to divest themselves of their health care assets; and
WHEREAS, in connection with such divesture, MHC and MMI (hereinafter
collectively referred to as the "Sellers") desire to sell to the Purchaser, and
the Purchaser desires to acquire from the Sellers, all of the Sellers' right,
title and interest in the Assets (as hereinafter defined).
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of this Agreement, except as otherwise expressly provided
herein or unless the context otherwise requires, (i) the terms defined in this
Article have the meanings assigned to them in this Article and include the
plural as well as the singular and (ii) all references in this Agreement to
designated "Articles", "Sections" and other subdivisions are to the designated
Articles, Sections and other subdivisions of this Agreement.
"ADDITIONAL INTEREST" shall have the meaning ascribed to such term under
each applicable Loan Agreement.
"ADDITIONAL RENT" shall have the meaning ascribed to such term under each
applicable Lease.
"AFFILIATE" shall mean any (i) other Person which, directly or indirectly,
controls or is controlled by or is under common control with such Person or (ii)
other Person that owns, beneficially, directly or indirectly, ten percent (10%)
or more of the outstanding capital stock, shares or equity interests of such
Person. For the purposes of this definition, the term "control" (including the
correlative meanings of the terms "controlled by" and "under common control
with"), as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of such Person, through the ownership of voting securities,
partnership interests or other equity interests.
"AGGREGATE CASUALTY THRESHOLD" shall have the meaning ascribed to such term
in Section 6.1 of this Agreement.
"ALABASTER, AL FACILITY" shall mean the "Facility" as defined under the
Alabaster, AL Lease.
"ALABASTER, AL LAND" shall mean the land more particularly described on
EXHIBIT I-1 attached hereto.
"ALABASTER, AL LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
"ALABASTER, AL LEASED PROPERTY" shall mean collectively the Alabaster, AL
Land and all the other "Leased Property" as defined under the Alabaster, AL
Lease.
"ALABASTER, AL PURCHASE OPTION" shall mean that certain Amended and
Restated Purchase Option Agreement dated as of March 2, 1994, by and between
Meditrust of Alabama, Inc. and Briarcliff Nursing Home, Inc., relating to the
Alabaster, AL Facility.
"ALLOCATED VALUE" shall mean with respect to each Facility (and the
Property related thereto), subject to Section 3.4 (f), the value set forth on
the Allocated Value Schedule.
2
"ALLOCATED VALUE SCHEDULE" shall mean the schedule attached hereto as
EXHIBIT B.
"ALLONGE" shall mean an allonge in substantially the form attached hereto
as EXHIBIT O.
"ANSONIA, CT DEPOSIT PLEDGE AGREEMENT" shall mean that certain Deposit
Pledge Agreement, dated as of August 6, 1992, by and between South Field Nursing
Rehabilitation Center, Inc., and Meditrust-CT. "ANSONIA, CT FACILITY" shall mean
the "Facility" as defined under the Ansonia, CT Lease.
"ANSONIA, CT LAND" shall mean the land more particularly described on
EXHIBIT M-1 attached hereto.
"ANSONIA, CT LEASE" shall mean that certain Facility Lease Agreement, dated
as of August 6, 1992, by and between Southfield Nursing Rehabilitation Center,
Inc. and Meditrust-CT, as amended by that certain (i) First Amendment of Lease,
dated as of November 1, 1995, by and among Mariner Health Care of Southern
Connecticut, Inc. (f/k/a Southfield Nursing Rehabilitation Center, Inc.),
Mariner Health Group, Inc. and Meditrust-CT and (ii) Second Amendment of Lease,
dated as of September 30, 1998, by and between Mariner Health Care of Southern
Connecticut, Inc. and Meditrust-CT.
"ANSONIA, CT LEASED PROPERTY" shall mean collectively the Ansonia, CT Land
and all of the other "Leased Property" as defined under the Ansonia, CT Lease.
"ASSETS" shall mean collectively all of (i) the Membership Interest, (ii)
the lender's right, title and interest in the LOANS and the Loan Documents
(including, without limitation, all Encumbrances created thereunder) and (iii)
MMI's right, title and interest in the Bankruptcy Claims.
"ASSIGNMENT AND ASSUMPTION OF LOAN DOCUMENTS"shall mean an assignment and
assumption of MMI's interest under Loan Documents substantially in the form
attached hereto as EXHIBIT P-1.
"ASSIGNMENT AND ASSUMPTION OF LOAN DOCUMENTS RELATING TO LOANS SUBJECT TO
BANKRUPTCY PROCEEDINGS" shall mean an assignment and assumption of MMI's
interest under Loan Documents substantially in the form attached hereto as
EXHIBIT P-2.
"ASSIGNMENT OF CLAIMS" shall mean an assignment of MMI's right, title and
interest in the Bankruptcy Claims substantially in the form attached hereto as
EXHIBIT Q-1 or such other form as the Purchaser may reasonably request in order
to attain compliance with Bankruptcy Rule 3001(e) and any local rule applied in
the Bankruptcy Proceedings.
3
"ASSIGNMENT OF LIMITED LIABILITY COMPANY MEMBERSHIP INTEREST" shall mean an
assignment of the Membership Interest substantially in the form attached hereto
as EXHIBIT R.
"BANK OF TOKYO LOAN" shall mean that certain loan in the original principal
amount of EIGHT MILLION THREE HUNDRED THOUSAND DOLLARS ($8,300,000) made on
March 1, 1991 by The Bank of Tokyo Trust Company to the Fresno Partnership.
"BANK OF TOKYO LOAN DOCUMENTS" shall mean all of the documents and
instruments evidencing and/or securing the Bank of Tokyo Loan, including,
without limitation the Fresno Deed of Trust.
"BANKRUPTCY CLAIMS" shall mean all right, title and interest of MMI and the
Subsidiaries in all claims now existing or hereafter arising under or related to
the Lease Documents and the Loan Documents against the Tenants, the Borrowers
and the Guarantors that are the subject of any Bankruptcy Proceedings
(including, without limitation, all Proofs of Claims).
"BANKRUPTCY PROCEEDINGS" shall mean collectively the Sun Bankruptcy
Proceedings, the Mariner Bankruptcy Proceedings, the Multicare Bankruptcy
Proceedings, the Integrated Bankruptcy Proceedings, the Genesis Bankruptcy
Proceedings and each other bankruptcy, insolvency, rearrangement or similar
action hereafter commenced by or against any Tenant, any Borrower and/or any
Guarantor.
"BAY TREE" shall mean Bay Tree Nursing Center Corp., a Massachusetts
corporation.
"BEDFORD, NH FACILITY" shall mean the "Facility" as defined under the
Bedford, NH Lease.
"BEDFORD, NH LAND" shall mean the land more particularly described on
EXHIBIT N-1 attached hereto.
"BEDFORD, NH LEASE" shall have the meaning set forth on EXHIBIT WW attached
hereto.
"BEDFORD, NH LEASED PROPERTY" shall mean collectively the Bedford, NH Land
and all of the other "Leased Property" as defined under the Bedford, NH Lease.
"BELLBROOK, OH FACILITY" shall mean the "Facility" as defined under the
Bellbrook, OH Lease.
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"BELLBROOK, ▇▇ ▇▇▇▇" shall mean the land more particularly described on
EXHIBIT I-2 attached hereto.
"BELLBROOK, OH LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
"BELLBROOK, OH LEASED PROPERTY" shall mean collectively the Bellbrook, ▇▇
▇▇▇▇ and all of the other "Leased Property" as defined under the Bellbrook, OH
Lease.
"BEVERLY, MA FACILITY" shall mean the "Facility" as defined under the
Beverly, MA Lease.
"BEVERLY, MA LAND" shall mean the land more particularly described on
EXHIBIT H-35 attached hereto.
"BEVERLY, MA LEASE" shall have the meaning set forth on EXHIBIT WW attached
hereto.
"BEVERLY, MA LEASED PROPERTY" shall mean collectively the Beverly, MA Land
and all of the other "Leased Property" as defined under the Beverly, MA Lease.
"BORROWER ESTOPPEL CERTIFICATE" shall mean a certificate substantially in
the form attached hereto as EXHIBIT EE-1, that is dated no more than fifteen
(15) days prior to the end of the Study Period, with, subject to Section 3.4(b)
and 3.4(i), only such modifications as are reasonably acceptable to the
Purchaser.
"BORROWERS" shall mean collectively each"Borrower" as defined under each
Loan Agreement.
"BOSTON, MA FACILITY" shall mean the "Facility" as defined under the
Boston, MA Loan.
"BOSTON, MA LAND" shall mean the land more particularly described on
EXHIBIT H-28 attached hereto.
"BOSTON, MA LOAN" shall mean the "Loan" as defined in the Boston, MA Loan
Agreement.
"BOSTON, MA LOAN AGREEMENT" shall mean that certain Amendment and
Restatement of Loan Agreement, dated as of June 23, 1994, by and between
MDPLX-Rehab and MMI, as amended by the Omnibus Sun Loan Amendment.
5
"BOSTON, MA MORTGAGE" shall mean that certain Mortgage and Security
Agreement, dated as of February 1, 1993, granted by MDPLX-Rehab to MMI, recorded
with the Suffolk County Registry of Deeds in Book 18025, Page 31, as amended by
First Amendment of Mortgage and Security Agreement, Assignment of Leases and
Rents and other Loan Documents, dated as of June 23, 1994, by and among MMI,
MDPLX-Rehab, Mediplex Group and Sun, recorded with said Deeds in Book 19155,
Page 340.
"BOSTON, MA MORTGAGED PROPERTY" shall mean the "Mortgaged Property" as
defined under the Boston, MA Mortgage.
"BOUND BROOK, NJ FACILITY" shall mean the "Facility" as defined under the
Bound Brook, NJ Lease.
"BOUND BROOK, NJ LAND" shall mean the land more particularly described on
EXHIBIT I-10 attached hereto.
"BOUND BROOK, NJ LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
"BOUND BROOK, NJ LEASED PROPERTY" shall mean collectively the Bound Brook,
NJ Land and all of the other "Leased Property" as defined under the Bound Brook,
NJ Lease.
"BOWLING GREEN, KY FACILITY" shall mean the "Facility" as defined under the
Bowling Green, KY Lease.
"BOWLING GREEN, KY LAND" shall mean the land more particularly described on
EXHIBIT H-9 attached hereto.
"BOWLING GREEN, KY LEASE" shall have the meaning set forth on EXHIBIT WW as
attached hereto.
"BOWLING GREEN, KY LEASED PROPERTY" shall mean collectively the Bowling
Green, KY Land and all of the other "Leased Property" as defined under the
Bowling Green, KY Lease.
"BRADENTON, FL BANKRUPTCY CLAIMS" shall mean all right, title and interest
of Meditrust in all claims now existing or hereafter arising under or related to
the Bradenton, FL Documents against Manatee Springs, Sun and/or Mediplex in any
of the Sun Bankruptcy Proceedings or the Manatee Springs Bankruptcy Proceeding.
"BRADENTON, FL BONDS" shall mean the First Mortgage Revenue Refunding
Bonds, Series 1995 (Meditrust Project) in the aggregate amount of $3,475,000
issued by the Bradenton, FL Issuer.
6
"BRADENTON, FL FACILITY" shall mean the "Facility" as defined under the
Bradenton, FL Lease.
"BRADENTON, FL DOCUMENTS" shall mean collectively, the Bradenton, FL Loan
Documents and the Bradenton, FL Lease Documents.
"BRADENTON, FL ISSUER" shall mean Manatee County, Florida.
"BRADENTON, FL LEASE" shall mean that certain Amendment and Restatement of
Facility Lease Agreement by and between Meditrust-BT, as Lessor, and Manatee
Springs, as Lessee, dated as of June 23, 1994, as amended by (A) the
Confirmation Agreement, (B) that certain First Amendment to Amendment and
Restatement of Facility Lease Agreement by and between Meditrust-BT and Manatee
Springs, dated as of December 22, 1995, and (C) the Omnibus Sun Lease Amendment.
"BRADENTON, FL LEASE DOCUMENTS" shall mean collectively the "Lease
Documents" as defined under the Bradenton, FL Lease.
"BRADENTON, FL LEASED PROPERTY" shall mean the "Leased Property" as defined
under the Bradenton, FL Lease.
"BRADENTON, FL LOAN AGREEMENT" shall mean that certain Loan Agreement,
dated as of December 1, 1995, by and between Meditrust-BT and the Bradenton, FL
Issuer, as affected by the 1997 Assumption Agreement.
"BRADENTON, FL LOAN DOCUMENTS" shall mean the Bradenton, FL Loan Agreement
and all of the other documents evidencing and/or securing the Seller's
obligations with respect to the Bradenton, FL Bonds.
"BRADENTON P&S" shall mean a Purchase and Sale Agreement substantially in
the form attached hereto as EXHIBIT DDD.
"BRIDGEWATER, NJ FACILITY" shall mean the "Facility" as defined under the
Bridgewater, NJ Lease.
"BRIDGEWATER, NJ LAND" shall mean the land more particularly described on
EXHIBIT N-7 attached hereto.
"BRIDGEWATER, NJ LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
"BRIDGEWATER, NJ LEASED PROPERTY" shall mean collectively the Bridgewater,
NJ Land and all of the other "Leased Property" as defined under the Bridgewater,
NJ Lease.
▇
"▇▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ FACILITY" shall mean the "Facility" as defined
under the Bristol - New Bedford, MA Lease.
"BRISTOL - NEW BEDFORD, MA LAND" shall mean the land more particularly
described on EXHIBIT H-18 attached hereto.
"BRISTOL - NEW BEDFORD, MA LEASE" shall have the meaning set forth on
EXHIBIT WW attached hereto.
"BRISTOL - NEW BEDFORD, MA LEASED PROPERTY" shall mean collectively the
Bristol - New Bedford, MA Land and all of the other "Leased Property" as defined
under the Bristol - New Bedford, MA Lease.
"BROOKLINE GROUND LEASE" shall mean that certain Lease, dated as of June
17, 1971, by Brookline Trust Company, as Trustee of the ▇▇▇▇▇▇▇▇▇▇▇ Realty
Trust, as lessor, and the Trustees of the P.S. Realty Trust, as lessee, as
affected by that certain (i) Amendment to Lease, dated as of July 1981, by and
between Brookline Trust Company, as Trustee of the ▇▇▇▇▇▇▇▇▇▇▇ Realty Trust and
the Trustees of the P.S. Realty Trust, (ii) Estoppel & Amendment Agreement,
dated as of March 31, 1992, by Fleet Bank of Massachusetts, National
Association, as Trustee of the ▇▇▇▇▇▇▇▇▇▇▇ Realty Trust, Brookline Manor Nursing
Home, Inc. (as successor in interest to P.S. Realty Trust) and MDPLX-MA and
(iii) Assignment and Assumption Agreement, dated as of March 31, 1992, by and
between Brookline Manor Nursing Home, Inc. and MDPLX-MA.
"BROOKLINE GROUND LESSOR" shall mean Fleet National Bank as Trustee of the
▇▇▇▇▇▇▇▇▇▇▇ Realty Trust or any successor in interest that is the current holder
of the lessor's interest under the Brookline Ground Lease.
"BROOKLINE GROUND LESSOR'S ESTOPPEL CERTIFICATE" shall mean an estoppel
certificate relating to the Brookline Ground Lease in substantially the form
attached hereto as EXHIBIT S, that is dated no more than fifteen (15) days prior
to the end of the Study Period, with subject to Section 3.4(k), only such
modifications as are reasonably acceptable to the Purchaser.
"BROOKLINE, MA LAND" shall mean the land more particularly described on
EXHIBIT H-29 attached hereto.
"BROOKLINE, MA LEASEHOLD MORTGAGE" shall mean that certain Leasehold
Mortgage and Security Agreement, dated as of March 31, 1993, granted by MDPLX-MA
to MMI, as amended by First Amendment of Leasehold Mortgage and Security
Agreement, Assignment of Subleases and Rents and Other Loan Documents, dated as
of June 23, 1994, by and among MMI, MDPLX-MA, Mediplex Group and Sun.
8
"BROOKLINE, MA LOAN" shall mean the "Loan" as defined in the Brookline, MA
Loan Agreement.
"BROOKLINE, MA LOAN AGREEMENT" shall mean that certain Amendment and
Restatement of Loan Agreement, dated as of June 23, 1994, by and between
MDPLX-MA and MMI, as amended by the Omnibus Sun Loan Amendment.
"BROOKLINE, MA MORTGAGED PROPERTY" shall mean the "Mortgaged Property" as
defined under the Brookline, MA Leasehold Mortgage.
"BROOKLINE, MA RENOVATION ESCROW AGREEMENT" shall mean that certain
Renovation Escrow Agreement, dated as of March 31, 1993, as amended, by and
between MMI and MDPLX-MA, as amended by the Sun Closing Letter.
"BUSINESS DAY" shall mean any day of the week other than Saturday, Sunday,
or a day on which banking institutions in the Commonwealth of Massachusetts are
obligated or authorized by law or executive action to be closed to the
transaction of normal banking business.
"CAMDEN, NJ FACILITY" shall mean the "Facility" as defined under the
Camden, NJ Lease.
"CAMDEN, NJ LAND" shall mean the land more particularly described on
EXHIBIT H-26 attached hereto.
"CAMDEN, NJ LEASE" shall have the meaning set forth on EXHIBIT WW attached
hereto.
"CAMDEN, NJ LEASED PROPERTY" shall mean collectively the Camden, NJ Land
and all of the other "Leased Property" as defined under the Camden, NJ Lease.
"CASH COLLATERAL" shall mean collectively the aggregate amounts held by MMI
and the Subsidiaries pursuant to the Deposit Pledge Agreements, which amounts
are set forth on EXHIBIT U attached hereto.
"CASH CONVERSION LETTERS" shall mean the letters and memos identified on
EXHIBIT T attached hereto.
"CERTIFICATE OF FORMATION" shall mean that certain Certificate of Formation
of New Meditrust-LLC filed with the Office of the Secretary of State of the
State of Delaware on April 19, 1999.
9
"CHESHIRE, CT FACILITY" shall mean the "Facility" as defined under the
Cheshire, CT Lease.
"CHESHIRE, CT LAND" shall mean the land more particularly described on
EXHIBIT H-36 attached hereto.
"CHESHIRE, CT LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
"CHESHIRE, CT LEASED PROPERTY" shall mean collectively the Cheshire, CT
Land and all of the other "Leased Property" as defined under the Cheshire, CT
Lease.
"CLEARWATER, FL LAND" shall mean the land more particularly described on
EXHIBIT N-17 attached hereto.
"CLEARWATER, FL MORTGAGE" shall mean that certain Renewal, Consolidation,
Mortgage, Spreader, Assignment and Security Agreement, dated as of October 13,
1994, by and between Sunset Point, as Mortgagor, and MMI, as Mortgagee, recorded
with the Public Records of Pinellas County in O.R. Book 8812, Page 1900.
"CLEARWATER, FL MORTGAGED PROPERTY" shall mean the "Mortgaged Property" as
defined under the Clearwater, FL Mortgage.
"CLOSING" shall mean the consummation of the purchase and sale of the
Assets pursuant to the terms of this Agreement.
"CLOSING CONDITIONS" shall have the meaning ascribed to such term in
Section 2.1 of this Agreement.
"CLOSING DATE" shall mean the thirtieth (30th) day after the expiration of
the Study Period, as such date may be extended in accordance with Section
6.1(c), Section 6.2(d) and/or Article 10.
"CLOSING STATEMENT" shall have the meaning set forth in Section 8.4(a).
"CODE" shall mean the Internal Revenue Code of 1986, and all amendments
thereto and all regulations issued thereunder.
"COLLATERAL" shall mean collectively all collateral securing the
obligations of the Tenants under the Lease Documents and the Borrowers under the
Loan Documents, including, without limitation, the Cash Collateral, the Letters
of Credit and the Stock.
10
"CONCORD CONDOMINIUM" shall mean the Concord Health Care Condominium,
created by Master Deed, dated July 8, 1993, recorded with the Middlesex South
District Registry of Deeds in Book 23407, Page 8, as amended by the First
Amendment to Master Deed, dated July 3, 1996, recorded with the Middlesex South
District Registry of Deeds in Book 26484, Page 556.
"CONCORD CONDOMINIUM AUDITORIUM UNIT" shall mean Base Unit No. 2B of the
Concord Condominium.
"CONCORD CONDOMINIUM MOB/AUDITORIUM LEASE" shall have the meaning set forth
in EXHIBIT WW.
"CONCORD CONDOMINIUM MOB/AUDITORIUM LEASED PROPERTY" shall mean
collectively the Concord Condominium Auditorium Unit, the Concord Condominium
MOB Unit and all of the other "Leased Property" as defined under the Concord
Condominium MOB/Auditorium Lease.
"CONCORD CONDOMINIUM MOB UNIT" shall mean Base Unit No. 2A of the Concord
Condominium.
"CONCORD CONDOMINIUM SNF UNIT" shall mean Base Unit No. 1A of the Concord
Condominium.
"CONCORD CONDOMINIUM SNF UNIT LEASE" shall have the meaning set forth on
EXHIBIT WW attached hereto.
"CONCORD CONDOMINIUM SNF UNIT LEASED PROPERTY" shall mean collectively the
Concord Condominium SNF Unit and all other "Leased Property" as defined under
the Concord Condominium SNF Unit Lease.
"CONCORD CONDOMINIUM TRUST" shall mean the Concord Health Care Condominium
Trust created pursuant to declaration of trust dated July 8, 1993, recorded with
the Middlesex South District Registry of Deeds in Book 23407, Page 31, as
amended and restated by Amendment and Restatement of Declaration of Trust of the
Concord Health Care Condominium Trust, dated as of September 30, 1995, recorded
with said Deeds in Book 25718, Page 388.
"CONCORD CONDOMINIUM UNITS" shall mean collectively the Concord Condominium
Auditorium Unit, the Concord Condominium MOB Unit and the Concord Condominium
SNF Unit, more particularly described on EXHIBIT H-17 attached hereto.
"CONCORD MANAGEMENT AGREEMENT" shall mean that certain Management
Agreement, dated as of September 30, 1995, by and between, MDT-MA, as Trustee of
the Concord Condominium Trust and MDPLX-MA regarding the management of the
common areas and
11
facilities of the Concord Condominium, as amended by First Amendment of
Management Agreement, dated as of June 9, 1997, by and between MDT-MA, as
Trustee of the Concord Condominium Trust and MDPLX-MA.
"CONCORD OPTION AGREEMENT" shall mean that certain Option Agreement, dated
June 9, 1997, between Sunspectrum Outpatient Rehabilitation-Concord, Inc. and
MDT-MA, recorded with the Middlesex South District Registry of Deeds in Book
27371, Page 279.
"CONFIDENTIAL INFORMATION" shall mean all information concerning the
Assets, the Properties, the Meditrust Entities, the Tenants, the Borrowers
and/or the Guarantors provided before or after the date hereof by any Meditrust
Entity to the Purchaser and/or any of the Purchaser's Agents, EXCLUDING,
HOWEVER, information that is available to any Person from sources other than
disclosure by the Purchaser or any of Purchaser's Agents in violation of this
Agreement.
"CONFIRMATION AGREEMENT" shall mean that certain letter dated as of
November __, 1994 [undated], from Meditrust-BT, MDT-MA, Meditrust-▇▇▇▇▇▇,
Meditrust-Tri, Meditrust-Lynn, Meditrust-NY, NEFC and Plaza Medical Nursing
Facility to and accepted by Sun, Mediplex Group, Mediplex of Ohio, Inc.,
Mediplex Management of Texas, Inc., MDPLX-MA, MDPLX-CT, MDPLX-Rehab, MDPLX-NJ,
Manatee Springs, P.M.N.F. Management, Inc., Quality Nursing Care of
Massachusetts, Inc. and Community Re-Entry Services, Inc.
"CONNECTICUT CONSENTS" shall have the meaning ascribed to such term in
Section 3.4(g).
"CONSENTS" shall mean collectively the Marlton Consent and any other
consents which are (i) required pursuant to any financing documents or any
instrument of record (including, without limitation, any subordination,
non-disturbance and attornment agreement or similar document or instrument)
relating to any of the Properties in order for the applicable party to give the
Marlton Consent and (ii) identified with specificity (and back-up documentation)
by the Purchaser and agreed to by the Seller prior to the end of the Study
Period based upon the title examinations conducted by the Title Company and the
parties' review of the Due Diligence Materials during the Study Period;
PROVIDED, HOWEVER, it is expressly acknowledged and agreed that the Connecticut
Consents and the HUD Consents do not constitute "Consents" for the purposes of
this definition.
"CONTROLLING PARTIES" shall mean collectively The Baupost Group, L.L.C., AG
Special Situations Corp. and ▇▇▇▇▇ ▇. ▇▇▇▇▇.
"CONTRACTS" shall mean collectively all service, management and other
contracts relating to the operation of any Facility entered into by any
Meditrust Entity or by which any Meditrust Entity may be bound, excluding the
Concord Management Agreement.
12
"CORPORATE DOCUMENTS" shall mean collectively (i) the Certificate of
Incorporation and By-laws of Meditrust-Bedford and (ii) the Articles of
Incorporation and By-laws of Meditrust-California.
"CORPORATIONS" shall mean collectively Meditrust-Bedford and
Meditrust-California.
"COUNTRYSIDE" shall mean Countryside Care Center Corp., a Massachusetts
corporation.
"DANBURY, CT FACILITY" shall mean the "Facility" as defined under the
Danbury, CT Lease. "DANBURY, CT LAND" shall mean the land more particularly
described on EXHIBIT H-33 attached hereto.
"DANBURY, CT LEASE" shall have the meaning set forth on EXHIBIT WW attached
hereto.
"DANBURY, CT LEASED PROPERTY" shall mean collectively the Danbury, CT Land
and all of the other "Leased Property" as defined under the Danbury, CT Lease.
"DARIEN, CT FACILITY" shall mean the "Facility" as defined under the
Darien, CT Lease.
"DARIEN, CT LAND" shall mean the land more particularly described on
EXHIBIT H-3 attached hereto.
"DARIEN, CT LEASE" shall have the meaning set forth on EXHIBIT WW attached
hereto.
"DARIEN, CT LEASED PROPERTY" shall mean collectively the Darien, CT Land
and all of the other "Leased Property" as defined under the Darien, CT Lease.
"DECLARATION OF TRUST" shall mean that certain Declaration of Trust dated
as of April 30, 1999, as amended, establishing Meditrust-MA, a copy of which is
filed with the Office of the Secretary of State of Massachusetts.
"DEPOSIT" shall have the meaning set forth in Section 2.3.
"DEPOSIT PLEDGE AGREEMENTS" shall mean collectively the Deposit Pledge
Agreements listed on EXHIBIT U attached hereto.
13
"DUE DILIGENCE MATERIALS" shall have the meaning ascribed to such term in
Section 3.4(h).
"EAST LONGMEADOW, MA FACILITY" shall mean the "Facility" as defined under
the East Longmeadow, MA Lease.
"EAST LONGMEADOW, MA LAND" shall mean the land more particularly described
on EXHIBIT H-21 attached hereto.
"EAST LONGMEADOW, MA LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
"EAST LONGMEADOW, MA LEASED PROPERTY" shall mean collectively the East
Longmeadow, MA Land and all of the other "Leased Property" as defined under the
East Longmeadow, MA Lease.
"EFFINGHAM, NH FACILITY" shall mean the "Facility" as defined under the
Effingham, NH Lease.
"EFFINGHAM, NH LAND" shall mean the land more particularly described on
EXHIBIT L-1 attached hereto.
"EFFINGHAM, NH LEASE" shall mean that certain Amended and Restated Facility
Lease Agreement, dated as of September 30, 1997, by and between Meditrust-NH and
Lakeview Neurorehabilitation Center, Inc., as amended by the Lakeview Lease
Amendments.
"EFFINGHAM, NH LEASED PROPERTY" shall mean collectively the Effingham, NH
Land and all of the other "Leased Property" as defined under the Effingham, NH
Lease.
"ENCUMBRANCE" shall mean with respect to any Asset, any Property or any
Securities, any mortgage, deed of trust, easement, restriction, lien, pledge,
collateral assignment, hypothecation, charge, security interest, title retention
agreement, levy, execution, seizure, attachment, garnishment or other
encumbrance of any kind whatsoever in respect of such Asset, such Property or
such Securities, in each case whether or not ▇▇▇▇▇▇, vested or perfected.
"ENVIRONMENTAL LAWS" shall mean collectively, all Legal Requirements
applicable to environmental conditions on, under or emanating from any of the
Land Parcels, including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act, the Resource Conservation and Recovery
Act, the Federal Water Pollution Control Act and the Federal Clean Air Act.
"ERIE, PA FACILITY" shall mean the "Facility" as defined under the Erie, PA
Lease.
14
"ERIE, PA LAND" shall mean the land more particularly described on EXHIBIT
I-6 attached hereto.
"ERIE, PA LEASE" shall have the meaning set forth on EXHIBIT WW attached
hereto.
"ERIE, PA LEASED PROPERTY" shall mean collectively the Erie, PA Land and
all of the other "Leased Property" as defined under the Erie, PA Lease.
"ESCROW AGENT" shall mean Chicago Title Insurance Company.
"ESCROWED FUNDS" shall mean collectively all sums held by MMI and the
Subsidiaries in any tax, insurance and/or operating expense escrow accounts
established pursuant to any of the Lease Documents or Loan Documents.
"ESTOPPEL CERTIFICATES" shall mean collectively the Borrower Estoppel
Certificates, the Tenant Estoppel Certificates, the Brookline Ground Lessor's
Estoppel Certificate, the Marlton Ground Lessor's Estoppel Certificate and the
Wethersfield Ground Lessor's Estoppel Certificate.
"EXISTING FINANCIAL STATEMENTS" shall have the meaning ascribed to such
term in Section 7.2(c)(14).
"EXISTING TITLE INSURANCE POLICIES" shall mean collectively each title
insurance policy relating to any Asset or any Property issued to MMI or any
Subsidiary (or any predecessor in interest to such Subsidiary PROVIDED, THAT,
such predecessor in interest was owned and controlled, directly or indirectly,
by Meditrust or Meditrust-BT).
"EXPRESS REPRESENTATIONS AND WARRANTIES" shall have the meaning ascribed to
such term in Article 5.
"FACILITY" shall mean any "Facility" as defined under any Lease, any Loan
Agreement or any Mortgage.
"FACILITIES" shall mean collectively each Facility.
"FINAL SCHEDULE DATE" shall mean the date that is forty (40) days after the
execution of this Agreement.
"FINANCING STATEMENTS" shall mean collectively all UCC Financing Statements
held by MMI or any Subsidiary (as secured party) relating to any of the Assets
or any of the Properties.
15
"FORT ▇▇▇▇▇, WV FACILITY" shall mean the "Fort ▇▇▇▇▇ Facility" as defined
under the West Virginia Loan Agreement.
"FORT ▇▇▇▇▇, WV LAND" shall mean the land more particularly described on
EXHIBIT J-6 attached hereto.
"FORT ▇▇▇▇▇, WV MORTGAGE" shall mean that certain Credit Line Deed of
Trust, Security Agreement and Fixture Filing, dated as of October 13, 1992,
granted by Glenmark Associates-Dawnview Manor, Inc. to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and
▇▇▇▇ ▇. ▇▇▇▇▇ as Trustees for the benefit of MMI, recorded with the Clerk of
County Commission of Mineral County, West Virginia, in Deed of Trust Book 261,
Page 876.
"FORT ▇▇▇▇▇, WV MORTGAGED PROPERTY" shall mean the "Mortgaged Property" as
defined under the Fort ▇▇▇▇▇, WV Mortgage.
"FRESNO BANK ACCOUNT" shall mean Account Number 106300, Fund 031 in the
name of the Fresno Partnership at Fidelity Investments.
"FRESNO, CA FACILITY" shall mean the "Facility" as defined under the
Fresno, CA Lease.
"FRESNO, CA LAND" shall mean the land more particularly described on
EXHIBIT H-2 attached hereto.
"FRESNO, CA LEASE" shall have the meaning set forth on EXHIBIT WW attached
hereto.
"FRESNO, CA LEASED PROPERTY" shall mean collectively the Fresno, CA Land
and all of the other "Leased Property" as defined under the Fresno, CA Lease.
"FRESNO DEED OF TRUST" shall mean that certain Deed of Trust, Security
Agreement and Assignment of Leases and Rents, dated March 1, 1991, granted by
the Fresno Partnership to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as Trustee for the benefit of the
Bank of Tokyo Trust Company.
"FRESNO PARTNERSHIP" shall have the meaning ascribed to such term in the
preamble of this Agreement.
"FRESNO PARTNERSHIP AGREEMENT" shall mean that certain Amended and Restated
Agreement to Limited Partnership of San ▇▇▇▇▇▇▇ Health Care Associates Limited
Partnership, dated as of September 30, 1988, by and between Meditrust-California
and CMS Fresno Rehabilitation, Inc.
16
"FRESNO PARTNERSHIP INTERESTS" shall mean the general partner interest and
the Class A limited partner interest in the Fresno Partnership.
"GAITHERSBURG, MD FACILITY" shall mean the "Facility" as defined under the
Gaithersburg, MD Lease.
"GAITHERSBURG, MD LAND" shall mean the land more particularly described on
EXHIBIT H-8 attached hereto.
"GAITHERSBURG, MD LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
"GAITHERSBURG, MD LEASED PROPERTY" shall mean collectively the
Gaithersburg, MD Land and all of the other "Leased Property" as defined under
the Gaithersburg, MD Lease.
"GENESIS BANKRUPTCY PROCEEDINGS" shall mean collectively the Bankruptcy
Proceedings identified on EXHIBIT V-1 attached hereto.
"GENESIS GUARANTORS" shall mean collectively (i) The Multicare Companies,
Inc., a Delaware corporation, (ii) Geriatric & Medical Companies, Inc., a
Delaware corporation, (iii) Geriatric and Medical Services, Inc., a New Jersey
corporation, (IV) Genesis Health Ventures, Inc., a Pennsylvania corporation and
(V) Genesis ElderCare Corp., a Delaware corporation.
"GENESIS LEASED PROPERTIES" shall mean the "Leased Property" as defined
under the Genesis Lease.
"GENESIS LEASES" shall mean the Leases described on EXHIBIT C-3 attached
hereto.
"GENESIS LOANS" shall mean the Norristown, PA Loan and the West Virginia
Loan.
"GENESIS LOAN AGREEMENTS" shall mean the Norristown, PA Loan Agreement and
the West Virginia Loan Agreement.
"GENESIS MORTGAGED PROPERTIES" shall mean collectively the "Mortgaged
Property" as defined under each of the Genesis Mortgages.
"GENESIS MORTGAGES" shall mean collectively the Norristown, PA Mortgage and
the West Virginia Mortgages.
"GOVERNMENTAL AUTHORITIES" shall mean collectively all agencies,
authorities, bodies, boards, commissions, courts, instrumentalities,
legislatures and offices of any nature whatsoever for any government unit or
political subdivision, whether federal, state, county, district, municipal, city
or otherwise, and whether now or hereafter in existence.
17
"GRAND BLANC, MI FACILITY" shall mean the "Facility" defined under the
Grand Blanc, MI Lease.
"GRAND BLANC, MI LAND" shall mean the land more particularly described on
EXHIBIT I-7 attached hereto.
"GRAND BLANC, MI LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
"GRAND BLANC, MI LEASED PROPERTY" shall mean collectively the Grand Blanc,
MI Land and all of the other "Leased Property" as defined under the Grand Blanc,
MI Lease.
"GREENFIELD" shall mean Greenfield Nursing and Convalescent Center, a New
Jersey corporation.
"GREENSBURG, PA LAND" shall mean the land more particularly described on
EXHIBIT I-9 attached hereto.
"GREENSBURG, PA LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
"GREENSBURG, PA LEASED PROPERTY" shall mean collectively the Greensburg, PA
Land and all of the other "Leased Property" as defined under the Greensburg, PA
Lease.
"GROUND LEASES" shall mean collectively the Marlton Ground Lease and the
Wethersfield Ground Lease.
"GUARANTORS" shall mean collectively the Sun Guarantors, the Integrated
Guarantor, the Genesis Guarantors, the Mariner Guarantor, the Lakeview
Guarantors, HEALTHSOUTH and the Harborside Guarantors.
"GWZ" shall mean G-WZ of Stamford, Inc., a Connecticut corporation.
"HARBORSIDE" shall mean Harborside Healthcare Corporation, a Delaware
corporation.
"HARBORSIDE GUARANTORS" shall mean collectively Harborside and Harborside
LP.
"HARBORSIDE INTERCREDITOR AGREEMENTS" shall mean collectively that certain
(i) Accounts Receivable Intercreditor Agreement (Mortgaged Facilities), dated as
of August 11, 1998, by and between The Chase Manhattan Bank, as Agent, HHC
1998-1 Trust,
18
CSL Leasing, Inc., BTD Harborside, Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. and
MMI and (ii) Accounts Receivable Intercreditor Agreement (Leased Facilities),
dated as of August 11, 1998, by and between The Chase Manhattan Bank, as Agent,
HHC 1998-1 Trust, CSL Leasing, Inc., BTD Harborside, Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior
Funding, Inc. and Meditrust-LLC.
"HARBORSIDE LEASED PROPERTIES" shall mean collectively the "Leased
Property" as defined under each of the Harborside Leases.
"HARBORSIDE LEASES" shall mean the Leases described on EXHIBIT C-4 attached
hereto.
"HARBORSIDE LOAN" shall mean the "Loan" as defined under the Harborside
Loan Agreement.
"HARBORSIDE LOAN AGREEMENT" shall mean that certain Loan Agreement, dated
as of October 13, 1994, by and among the Released Harborside Borrowers, Bay
Tree, Countryside, Sunset Point, West Bay and Harborside LP, as amended by that
certain (i) First Amendment to Loan Agreement, dated as of May 17, 1996, by and
among the Released Harborside Borrowers, Bay Tree, Countryside, Sunset Point,
West Bay, Harborside LP and MMI, and (ii) Second Amendment to Loan Agreement,
Consent to Merger and Confirmation of Guaranties, dated as of July 31, 1998, by
and among Bay Tree, Countryside, Sunset Point, West Bay, Harborside LP, MMI and
Harborside.
"HARBORSIDE LOAN DOCUMENTS" shall mean the "Loan Documents" as defined
under the Harborside Loan Agreement.
"HARBORSIDE LP" shall mean Harborside Healthcare Limited Partnership, a
Massachusetts limited partnership.
"HARBORSIDE MORTGAGED PROPERTIES" shall mean collectively the "Mortgaged
Property" as defined under each of the Harborside Mortgages.
"HARBORSIDE MORTGAGES" shall mean collectively (i) the Palm Harbor, FL
Mortgage, (ii) the Terre Haute, IN Mortgage, (iii) the Clearwater, FL Mortgage
and (IV) the Oldsmar, FL Mortgage.
"HAZARDOUS MATERIALS" shall mean any substance which is or contains: (i)
any "hazardous substance" as now or hereafter defined in the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended (42
U.S.C. Section 9601 ET SEQ.) or any regulations promulgated thereunder; (ii) any
"hazardous waste" as now or hereafter defined the Resource Conservation and
Recovery Act (42 U.S.C. Section 6901 ET SEQ.) or regulations promulgated
thereunder; (iii) any substance regulated by the Toxic
19
Substances Control Act (15 U.S.C. Section 2601 ET SEQ.); (IV) gasoline, diesel
fuel or other petroleum hydrocarbons; (V) asbestos and asbestos containing
materials, in any form, whether friable or nonfriable; (VI) polychlorinated
biphenyls; (VII) radon gas; and (viii) any additional substances or materials
which are now or hereafter classified or considered to be hazardous or toxic
under any laws, ordinances, statutes, codes, rules, regulations, agreements,
judgments, orders and decrees now or hereafter enacted, promulgated, or amended,
of the United States, the states, the counties, the cities or any other
political subdivisions in which the Real Properties are located and any other
political subdivision, agency or instrumentality exercising jurisdiction over
the owner of the Real Properties, the Real Properties or the use of the Real
Properties relating to pollution, the protection or regulation of human health,
natural resources or the environment, or the emission, discharge, release or
threatened release of pollutants, contaminants, chemicals or industrial, toxic
or hazardous substances or waste into the environment (including ambient air,
surface water, ground water or land or soil); PROVIDED, HOWEVER, that
notwithstanding the foregoing, the term "Hazardous Materials" as defined herein
shall not include (X) pharmaceuticals and cleaning agents of the types and in
the quantities and concentrations normally stocked in health care facilities,
(y) oil in de minimis amounts typically associated with the use of certain
portions of the Land for driving and parking motor vehicles or (Z) medical
wastes generated at the Real Properties; as long as the foregoing were and/or
are used, stored, transported and/or disposed of in accordance with applicable
Environmental Laws.
"HEALTHSOUTH" shall mean HEALTHSOUTH Corporation, a Delaware corporation.
"HOLYOKE, MA FACILITY" shall mean the "Facility" as defined under the
Holyoke, MA Lease.
"HOLYOKE, MA LAND" shall mean the land more particularly described on
EXHIBIT H-15 attached hereto.
"HOLYOKE, MA LEASE" shall have the meaning set forth on EXHIBIT WW attached
hereto.
"HOLYOKE, MA LEASED PROPERTY" shall mean collectively the Holyoke, MA Land
and all of the other "Leased Property" as defined under the Holyoke, MA Lease.
"HSR ACT" shall mean the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976.
"▇▇▇▇▇ HEIGHTS, OH FACILITY" shall mean the "Facility" as defined under the
▇▇▇▇▇ Heights, OH Lease.
"▇▇▇▇▇ HEIGHTS, ▇▇ ▇▇▇▇" shall mean the land more particularly described on
EXHIBIT I-4 attached hereto.
20
"▇▇▇▇▇ HEIGHTS, OH LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
"▇▇▇▇▇ HEIGHTS, OH LEASED PROPERTY" shall mean collectively the ▇▇▇▇▇
Heights, ▇▇ ▇▇▇▇ and all of the other "Leased Property" as defined under the
▇▇▇▇▇ Heights, OH Lease.
"HUD ASSIGNMENT" shall mean that certain Assignment dated June 8, 1994 from
the Initial HUD Mortgagee to the HUD Mortgagee, recorded with the Hillsborough
Registry of Deeds in Book 5554, Page 823.
"HUD ASSIGNMENT AND ASSUMPTION DOCUMENTS" shall have the meaning ascribed
to such term in Section 3.4(c).
"HUD CONSENTS" shall have the meaning ascribed to such term in Section
3.4(c).
"HUD ESCROW ACCOUNTS" shall mean collectively all escrow accounts held by
the HUD Mortgagee to secure the obligations under the HUD Financing Documents.
"HUD ESTOPPEL CERTIFICATE" shall mean an estoppel certificate, executed by
the HUD Mortgagee, addressing the outstanding principal amount under the HUD
Note, status of the payment obligations under the HUD Financing Documents, and
the amount currently held in the HUD Escrow Accounts, that is (i) dated no more
than five (5) days prior to the earlier to occur of (X) the Closing or (y) the
transfer of the Meditrust-Bedford Shares to the Purchaser pursuant to Section
3.4(c) and (ii) is in the form and substance reasonably acceptable to the
Purchaser.
"HUD FINANCING DOCUMENTS" shall mean collectively the HUD Note, the HUD
Mortgage, the HUD Regulatory Agreements and all other documents and instruments
evidencing, securing or otherwise given in connection with the loan evidenced by
the HUD Note.
"HUD MORTGAGE" shall mean that certain Mortgage, dated August 2, 1991, from
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ to the Initial HUD Mortgagee, encumbering the Bedford, NH
Leased Property, recorded with the Hillsborough Registry of Deeds in Book 5273,
Page 1966, as affected by (A) Mortgage Modification Agreement dated as of August
19, 1993, recorded with said Deeds in Book 5463, Page 1796, (B) Second Mortgage
Modification Agreement, dated as of April 29, 1994, recorded with said Deeds in
Book 5554, Page 813, both of said Modification Agreements by and between ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ and the Initial HUD Mortgagee, and approved by the HUD Secretary, (C)
the HUD Assignment and (D) Mortgage Modification Agreement, dated as of January
1, 1996, by and among the HUD Mortgagee, Meditrust-Bedford and the HUD
Secretary, recorded with said Deeds in Book 5776, Page 415.
21
"HUD MORTGAGEE" shall mean ▇▇▇▇▇▇ Mortgage Group, Inc., a District of
Columbia corporation.
"HUD NOTE" shall mean that certain Mortgage Note in the original principal
amount of SEVEN MILLION SIX HUNDRED THIRTY-FIVE THOUSAND SEVEN HUNDRED DOLLARS
($7,635,700), dated August 2, 1991, made by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ to the order of
the Initial HUD Mortgagee, as affected by (A) Allonge dated August 19, 1993 and
(B) Second Allonge, dated April 29, 1994, both approved by the HUD Secretary.
"HUD REGULATORY AGREEMENTS" shall mean collectively that certain (A)
Regulatory Agreement for Multifamily Housing Projects, dated January 1, 1996, by
and between Meditrust-Bedford and the HUD Secretary and (B) Regulatory Agreement
- Nursing Homes, dated January 1, 1996, by and between Harborside New Hampshire
Limited Partnership and the HUD Secretary.
"HUD SECRETARY" shall mean The Secretary of Housing and Urban Development,
acting by and through the Federal Housing Commissioner.
"IMPROVEMENTS" shall mean collectively all buildings, structures and other
improvements located on any Land Parcel together with all fixtures, systems and
facilities, if any, owned by any Subsidiary located thereon.
"INDEMNIFICATION NOTICE" shall have the meaning ascribed to such term in
Section 3.4(s).
"INDEMNIFIED CLAIMS" shall mean collectively the Meditrust Indemnified
Claims and the Purchaser Indemnified Claims.
"INDEMNITEE" shall have the meaning ascribed to such term in Section
3.4(s).
"INDEMNITOR" shall have the meaning ascribed to such term in Section
3.4(s).
"INDIANAPOLIS, IN FACILITY" shall mean the "Facility" as defined under the
Indianapolis, IN Lease.
"INDIANAPOLIS, IN LAND" shall mean the land more particularly described on
EXHIBIT N-11 attached hereto.
"INDIANAPOLIS, IN LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
"INDIANAPOLIS, IN LEASED PROPERTY" shall mean collectively the
Indianapolis, IN Land and all of the other "Leased Property" as defined under
the Indianapolis, IN Lease.
22
"INDIVIDUAL CASUALTY THRESHOLD" shall have the meaning ascribed to such
term in Section 6.1 of this Agreement.
"INITIAL HUD MORTGAGEE" shall mean ▇▇▇▇ Mortgage Funding, Inc., a New York
corporation.
"INJUNCTION" shall have the meaning ascribed to such term in Section
3.1(i).
"INSPECTION SURVEYS" shall mean collectively all reports prepared with
respect to any inspection surveys of any Facility conducted by any Governmental
Authority having jurisdiction over health care matters or any Third Party Payor,
copies of which were received by any Meditrust Entity from January 1, 2000
through the date hereof.
"INSURANCE CERTIFICATES" shall mean the most recent insurance certificates
received by any Meditrust Entity evidencing the insurance policies obtained by
(or on behalf of) the Tenants relating to the Leased Properties and the
Borrowers relating to the Mortgaged Properties.
"INTANGIBLE PROPERTY" shall mean, with respect to any Leased Property, all
of the right, title and interest, if any, of the applicable Subsidiary that owns
or leases such Leased Property in all (i) warranties, guaranties and Permits
pertaining to such Leased Property, (ii) all Contracts (to the extent not
terminated) pertaining to such Leased Property and (iii) all plans and
specifications pertaining to such Leased Property.
"INTEGRATED BANKRUPTCY PROCEEDINGS" shall mean the Bankruptcy Proceedings
listed on EXHIBIT V-2 attached hereto.
"INTEGRATED GUARANTOR" shall mean Integrated Health Services, Inc., a
Delaware corporation.
"INTEGRATED LEASED PROPERTIES" shall mean collectively the "Leased
Property" as defined under each of the Integrated Leases.
"INTEGRATED LEASES" shall mean the Leases described on EXHIBIT C-2 attached
hereto.
"INTERCOMPANY NOTES" shall mean collectively all promissory notes made by
any Subsidiary to the order of Meditrust.
"INTERCREDITOR AGREEMENTS" shall mean collectively the agreements listed on
EXHIBIT W-1 attached hereto (the references to each applicable agreement listed
on such Exhibit shall contain the name of the document, the parties to the
document, the date of the document (to the extent such document is dated) and
any applicable recording information (to the extent that such document was
recorded and the applicable recording information is available from the files of
the Meditrust Entities)).
23
"JUDGMENT LIENS" shall mean collectively all involuntary Encumbrances
encumbering any of the Assets, any of the Securities and/or any of the
Properties caused by the actions or omissions of any Meditrust Entity.
"KANSAS CITY, MO FACILITY" shall mean the "Facility" as defined under the
Kansas City, MO Lease.
"KANSAS CITY, MO LAND" shall mean the land more particularly described on
EXHIBIT I-8 attached hereto.
"KANSAS CITY, MO LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
"KANSAS CITY, MO LEASED PROPERTY" shall mean collectively the Kansas City,
Mo Land and all of the other "Leased Property" as defined under the Kansas City,
MO Lease.
"KEENE, NH FACILITY" shall mean the "Facility" as defined under the Keene,
NH Lease.
"KEENE, NH LAND" shall mean the land more particularly described on EXHIBIT
N-3 attached hereto.
"KEENE, NH LEASE" shall have the meaning set forth on EXHIBIT WW attached
hereto.
"KEENE, NH LEASED PROPERTY" shall mean collectively the Keene, NH Land and
all of the other "Leased Property" as defined under the Keene, NH Lease.
"KENTFIELD, CA FACILITY" shall mean the "Facility" as defined under the
Kentfield, CA Lease.
"KENTFIELD, CA LAND" shall mean the land more particularly described on
EXHIBIT H-37 attached hereto.
"KENTFIELD, CA LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
"KENTFIELD, CA LEASED PROPERTY" shall mean collectively the Kentfield, CA
Land and all of the other "Leased Property" as defined under the Kentfield, CA
Lease.
24
"LAKEVIEW CENTER" shall mean Lakeview Neurorehabilitation Center, Inc., a
New Hampshire corporation.
"LAKEVIEW GUARANTORS" shall mean collectively Lakeview Management, Inc.,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇.
"LAKEVIEW LEASED PROPERTIES" shall mean collectively the Effingham, NH
Leased Property and the Waterford, WI Leased Property.
"LAKEVIEW LEASES" shall mean collectively the Effingham, NH Lease and the
Waterford, WI Lease.
"LAKEVIEW LEASE AMENDMENTS" shall mean collectively (i) that certain First
Omnibus Amendment to Amended and Restated Facility Lease Agreements, dated as of
July 31, 1998, by and among Lakeview Midwest, Lakeview Center, Meditrust-NH and
Meditrust-Tri, (ii) that certain Second Omnibus Amendment to Amended and
Restated Facility Lease Agreements, dated as of March 1, 1999, by and among
Lakeview Midwest, Lakeview Center, Meditrust-NH and Meditrust-Tri, (iii) that
certain Third Omnibus Amendment to Amended and Restated Facility Lease
Agreements, dated as of March 1, 1999, by and among Lakeview Midwest, Lakeview
Center, Meditrust-NH and Meditrust-Tri and (IV) that certain Fourth Omnibus
Amendment to Amended and Restated Facility Lease Agreements, dated as of
December 8, 2000, by and among Lakeview Midwest, Lakeview Center, Meditrust-NH
and Meditrust-Tri.
"LAKEVIEW MIDWEST" shall mean Lakeview Neurorehab Center Midwest, Inc., a
Wisconsin corporation.
"LAKEVIEW SECURITY AGREEMENT" shall mean that certain Security Agreement,
dated as of September 30, 1997, by and among Lakeview Management, Inc., Lakeview
Midwest, Lakeview Southeast, Inc., Lakeview Southwest, Inc., Lakeview
Neurorehabilitation Center, Inc. and MMI, as amended by (i) First Amendment to
Security Agreement, dated as of July 31, 1998, (ii) Second Amendment to Security
Agreement, dated as of March 1, 1999 and (iii) Third Amendment to Security
Agreement dated as of March 1, 1999.
"LAND" shall mean all of the Land Parcels collectively.
"LAND PARCEL" shall mean each parcel of land described on the Exhibits from
and including EXHIBIT H-1 through and including EXHIBIT N-19 attached hereto,
together with the interest, if any, of (i) with respect to each of the Land
Parcels included within the definition of the Leased Properties, the applicable
Subsidiary that is the owner of the fee interest of such land or the holder of
the leasehold interest in such land and (ii) with respect to the Mortgaged
Properties, the applicable Borrower that is owner of the fee interest in such
land or the holder of the leasehold interest in such land, in all rights,
easements belonging to such land and in and to any streets, alleys or rights of
way thereto.
25
"LEASE DOCUMENTS" shall mean collectively each Lease, the "Lease Documents"
as defined under each Lease and all other documents evidencing and/or securing
any obligation of any Tenant under any Lease.
"LEASE DOCUMENTS SCHEDULE" shall mean the list of Lease Documents attached
hereto as EXHIBIT WW (the references to each applicable agreement listed on such
Exhibit shall contain the name of the document, the parties to the document, the
date of the document (to the extent such document is dated) and any applicable
recording information relating to the document (to the extent that such document
was recorded and the applicable recording information is available from the
Subsidiaries' files)).
"LEASED PROPERTIES" shall mean collectively the Sun Leased Properties, the
Integrated Leased Properties, the Genesis Leased Properties, the Lakeview Leased
Properties, the Ansonia, CT Leased Property, the Harborside Leased Properties
and the ▇▇▇▇▇ Edge Leased Property.
"LEASES" shall mean collectively the Sun Leases, the Genesis Lease, the
Integrated Leases, the Ansonia, CT Lease, the Harborside Leases, the Lakeview
Leases and the ▇▇▇▇▇ Edge Ground Lease, together with any leases relating to the
Properties hereafter entered into by any Subsidiary pursuant to the provisions
of Section 3.4.
"LEGAL REQUIREMENTS" shall mean collectively all statutes, ordinances,
by-laws, codes, rules, regulations, restrictions, orders, judgments, decrees and
injunctions affecting any Meditrust Entity, the Purchaser, any of the Assets,
any of the Properties and/or the transaction contemplated by this Agreement.
"LETTER OF CREDIT ISSUER" shall mean the applicable financial institution
that is the issuer of any Letter of Credit.
"LETTERS OF CREDIT" shall mean collectively the Letters of Credit
identified on EXHIBIT X attached hereto.
"LEXINGTON, MA FACILITY" shall mean the "Facility" as defined under the
Lexington, MA Lease.
"LEXINGTON, MA LAND" shall mean the land more particularly described on
EXHIBIT H-20 attached hereto.
"LEXINGTON, MA LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
26
"LEXINGTON, MA LEASED PROPERTY" shall mean collectively the Lexington, MA
Land and all of the other "Leased Property" as defined under the Lexington, MA
Lease.
"LIMITATION THRESHOLD" shall mean ONE MILLION DOLLARS ($1,000,000).
"LOAN AGREEMENTS" shall mean collectively the Sun Loan Agreements, the
Genesis Loan Agreements, the Mariner Loan Agreement, the Tustin, CA Loan
Agreement and the Harborside Loan Agreement.
"LOAN DOCUMENTS" shall mean collectively each Loan Agreement, the "Loan
Documents" as defined under each Loan Agreement and all other documents
evidencing and/or securing any obligation of any Borrower under any Loan.
"LOAN DOCUMENTS SCHEDULE" shall mean the list of Loan Documents attached
hereto as EXHIBIT XX (the references to each applicable agreement listed on such
Exhibit shall contain the name of the document, the parties to the document, the
date of the document (to the extent such document is dated) and any applicable
recording information relating to the document (to the extent that such document
was recorded and the applicable recording information is available from MMI's
files)).
"LOAN TERMINATION NOTICE" shall have the meaning ascribed to such term in
Section 3.4(t).
"LOANS" shall mean collectively the Sun Loans, the Genesis Loans, the
Mariner Loan, the Tustin, CA Loan and the Harborside Loan.
"LOGAN, WV FACILITY" shall mean the Facility known as "▇▇▇▇▇ County
Healthcare Center" located in Logan, West Virginia.
"▇▇▇▇▇, WV LAND" shall mean the land more particularly described on EXHIBIT
J-1 attached hereto.
"LOGAN, WV LEASED PROPERTY" shall mean collectively the Logan, WV Land and
all of the other "Leased Property" thereon as defined under the Genesis Lease.
"LOWELL, MA FACILITY" shall mean the "Facility" as defined under the
Lowell, MA Lease.
"LOWELL, MA LAND" shall mean the land more particularly described on
EXHIBIT H-16 attached hereto.
"LOWELL, MA LEASE" shall have the meaning set forth on EXHIBIT WW attached
hereto.
27
"LOWELL, MA LEASED PROPERTY" shall mean collectively the Lowell, MA Land
and all of the other "Leased Property" as defined under the Lowell, MA Lease.
"LYNN, MA FACILITY" shall mean the "Facility" as defined under the Lynn, MA
Lease.
"LYNN, MA LAND" shall mean the land more particularly described on EXHIBIT
H-12 attached hereto.
"LYNN, MA LEASE" shall have the meaning set forth on EXHIBIT WW attached
hereto.
"LYNN, MA LEASED PROPERTY" shall mean collectively the Lynn, MA Land and
all of the other "Leased Property" as defined under the Lynn, MA Lease.
"MANATEE SPRINGS" shall mean Manatee Springs Nursing Home, Inc., a Florida
corporation.
"MANATEE SPRINGS BANKRUPTCY PROCEEDING" shall mean the bankruptcy
proceeding listed on EXHIBIT V-6 attached hereto.
"MARINER BANKRUPTCY PROCEEDINGS" shall mean collectively the Bankruptcy
Proceedings listed on EXHIBIT V-3 attached hereto.
"MARINER DEPOSIT PLEDGE AGREEMENTS" shall mean collectively the Ansonia, CT
Deposit Pledge Agreement and the Stonington, CT Deposit Pledge Agreement.
"MARINER GUARANTOR" shall mean Mariner Health Group, Inc., a Delaware
corporation.
"MARINER LOAN" shall mean the "Loan" as defined under the Mariner Loan
Agreement.
"MARINER LOAN AGREEMENT" shall mean that certain Loan Agreement, dated as
of November 1, 1995, by and between ▇▇▇▇▇▇▇▇▇ and MMI.
"MARINER MORTGAGE" shall mean that certain Mortgage Deed and Security
Agreement, dated as of November 1, 1995, granted by ▇▇▇▇▇▇▇▇▇ to MMI, recorded
with the Stonington Land Records in Volume 385, Page 473.
"MARINER MORTGAGED PROPERTY" shall mean the "Mortgaged Property" as defined
under the Mariner Mortgage.
28
"MARLTON ACCESS AGREEMENT" shall mean that certain Agreement, dated as of
September 15, 1995, by and among the West Jersey Health System, WJ/Mediplex and
West Jersey Medical Center, L.L.C.
"MARLTON CONSENT" shall have the meaning ascribed to such term in Section
3.4(d) of this Agreement.
"MARLTON GROUND LEASE" shall mean that certain Ground Lease, dated July 15,
1993, by and between WJ/Mediplex and West Jersey Health System, as affected by
that certain Assignment and Assumption Agreement, dated September 30, 1995, by
and between Meditrust-NJ and WJ/Mediplex.
"MARLTON GROUND LESSOR" shall mean West Jersey Health System or any
successor in interest that is the current holder of the lessor's interest under
the Marlton Ground Lease.
"MARLTON GROUND LESSOR'S ESTOPPEL CERTIFICATE" shall mean an estoppel
certificate executed by the Marlton Ground Lessor relating to the Marlton Ground
Lease in substantially the form attached hereto as EXHIBIT Y-1 attached hereto,
that is dated no more than fifteen (15) days prior to the end of the Study
Period, with, subject to Section 3.4(d), only such modifications as are
reasonably acceptable to the Purchaser.
"MARLTON, NJ FACILITY" shall mean the "Facility" as defined under the
Marlton, NJ Lease.
"MARLTON, NJ LAND" shall mean the land more particularly described on
EXHIBIT H-7 attached hereto.
"MARLTON, NJ LEASE" shall have the meaning set forth on EXHIBIT WW attached
hereto.
"MARLTON, NJ LEASED PROPERTY" shall mean collectively the lessee's interest
under the Marlton, Ground Lease and all of the other "Leased Property" as
defined under the Marlton, NJ Lease.
"MCI" shall mean Mediplex of Colorado, Inc., a Colorado corporation.
"MDPLX-CT" shall mean Mediplex of Connecticut, Inc. (f/k/a Wethersfield
Manor, Inc.), a Connecticut corporation.
"MDPLX-CT ASSIGNMENT" shall mean that certain Ground Lease Assignment
Agreement, dated as of August 27, 1986, by and between MDPLX-CT and
Meditrust-BT.
29
"MDPLX-MA" shall mean Mediplex of Massachusetts, Inc., a Massachusetts
corporation.
"MDPLX-NJ" shall mean Mediplex of New Jersey, Inc., a New Jersey
corporation.
"MDPLX-REHAB" shall mean Mediplex Rehabilitation of Massachusetts, Inc., a
Massachusetts corporation.
"MDT-MA" shall mean Meditrust of Massachusetts, Inc., a Delaware
corporation that was merged into Meditrust-LLC.
"MECHANICS' LIENS" shall mean collectively each mechanic's or materialman's
lien relating to any Real Property that any Tenant or any Borrower is not
required to satisfy or release pursuant to any of the Lease Documents and/or any
of the Loan Documents.
"MEDIPLEX" shall mean The Mediplex Group, Inc., a New Mexico corporation.
"MEDIPLEX AFFILIATED PARTIES" shall mean Bay Colony Health Services, Inc.,
Bay Colony Outpatient and Family Services, Inc., Bergen Eldercare, Inc.,
Bridgeport Surgical Center, Inc., Continuum Care Corporation, CCC of Ridgefield,
Inc., CCC of Trumbull, Inc., Community Re-Entry Services of Cortland, Inc.,
Danbury Surgical Center, Inc., Easton Acquisition Corp., Easton Nursing Center,
Inc., G-WZ Health Care, Inc., GWZ, Hartford Surgical Center, Inc., Manatee
Springs Nursing Center, Inc., Medical Management & Development Corporation,
Medicom Media Corp., Mediplex Development of Connecticut, Inc., Mediplex Holding
Corporation, MMDC of Pennsylvania, Inc., MMDC of New Jersey, Inc., Mediplex Home
Health Corp., Mediplex Management, Inc., Mediplex Management of ▇▇▇▇▇▇▇▇, Inc.,
Mediplex Management of Manatee, Inc., Mediplex Management of New Jersey, Inc.,
Mediplex Management of Palm Beach County, Inc., Mediplex Management of Port St.
Lucie, Inc., Mediplex Management of Texas, Inc., Mediplex Management Services,
Inc., Mediplex Properties, Inc., MCI, Mediplex of Concord, Inc., MDPLX-CT,
Mediplex of Florida, Inc., Mediplex of Kentucky, Inc., Mediplex of Maryland,
Inc., MDPLX-MA, Mediplex of New Hampshire, Inc., MDPLX-NJ, Mediplex of New York,
Inc., Mediplex of Ohio, Inc., Mediplex of Tampa, Inc., Mediplex of Tennessee,
Inc., Mediplex of Trumbull, Inc., Mediplex Rehabilitation of Connecticut, Inc.,
Mediplex Rehabilitation of Georgia, Inc., MDPLX-Rehab, Mediplex Testing, Inc.,
Mediplex of Virginia, Inc., Mediplus Holding Co., Inc., Mediscript, Inc.,
Neurotrauma Rehab Inc., New Bedford Acquisition Corp., New Bedford Nursing
Center, Inc., Oakview Treatment Centers of Kansas, Inc., Plymouth Acquisition
Corp., Plymouth Nursing Center, Inc., P.M.N.F. Management, Inc., Quality Care
Holding Corporation, Quality Care of New Jersey, Inc., Quality Nursing Care of
Massachusetts, Inc., Raynham Acquisition Corp., Raynham Nursing Center, Inc.,
▇▇▇▇▇▇▇▇ Land, Inc., Valley View, Worcester Acquisition Corp., Worcester Nursing
Center, Inc., Four Seasons Health Care Management, Inc., Honorcare Management
Company, Sundance Rehabilitation Corporation, Sunrise Healthcare Corporation,
Sunscript Pharmacy Corporation,
30
Sunquest Consulting, Inc., Special Medical Services, Inc., Sundance Outpatient
Rehabilitation Agency Corporation, Sunrise Healthcare of Colorado, Inc. and
Sunrise Rehab of Colorado, Inc.
"MEDIPLEX GROUP" shall mean The Mediplex Group, Inc., a Massachusetts
corporation that was merged into Mediplex.
"MEDITRUST" shall have the meaning ascribed to such term in the preamble of
this Agreement.
"MEDITRUST ASSIGNMENT AND ASSUMPTION AGREEMENTS" shall mean collectively
the Assignment and Assumption Agreements set forth on EXHIBIT Z attached hereto.
"MEDITRUST-BEDFORD" shall have the meaning ascribed to such term in the
preamble of this Agreement.
"MEDITRUST-BEDFORD SHARES" shall mean all of the issued and outstanding
shares of capital stock in Meditrust-Bedford.
"MEDITRUST-▇▇▇▇▇▇" shall mean Meditrust of ▇▇▇▇▇▇, Inc., a Delaware
corporation that was merged into Meditrust-LLC.
"MEDITRUST BOARD APPROVAL" shall mean the approval by the Board of
Directors of Meditrust of the execution and delivery of this Agreement and the
consummation of the transaction contemplated hereunder.
"MEDITRUST-BT" shall mean Meditrust, a Massachusetts business trust, that
was merged into Santa ▇▇▇▇▇ Realty Enterprises, Inc. (which is now known as
Meditrust Corporation).
"MEDITRUST-CALIFORNIA" shall mean Meditrust of California, Inc., a Delaware
corporation.
"MEDITRUST-CALIFORNIA SHARES" shall mean all of the issued and outstanding
shares of capital stock in Meditrust-California.
"MEDITRUST-CT" shall mean Meditrust of Connecticut, Inc., a Delaware
corporation that was merged into New Meditrust-LLC.
"MEDITRUST DOCUMENTS" shall mean collectively all documents required to be
delivered by the Meditrust Parties at the Closing in order to effectuate the
consummation of the transaction contemplated hereunder.
31
"MEDITRUST ENTITIES" shall have the meaning ascribed to such term in the
preamble of this Agreement.
"MEDITRUST ESTIMATE" shall have the meaning ascribed to such term in
Section 6.1 of this Agreement.
"MEDITRUST INDEMNIFIED CLAIMS" shall have the meaning ascribed to such term
in Section 3.4(r).
"MEDITRUST-KY" shall mean Meditrust of Kentucky, Inc., a Delaware
corporation that was merged into Meditrust-LLC.
"MEDITRUST-LLC" shall mean Meditrust Company LLC, a Delaware limited
liability company that was merged to New Meditrust-LLC.
"MEDITRUST-LYNN" shall mean Meditrust of Lynn, Inc., a Delaware corporation
that was merged into Meditrust-LLC.
"MEDITRUST-MA" shall have the meaning ascribed to such term in the preamble
of this Agreement.
"MEDITRUST-MA SHARES" shall mean all of the shares of the beneficial
interest in Meditrust-MA.
"MEDITRUST-MD" shall mean Meditrust of Maryland, Inc., a Delaware
corporation that was merged into Meditrust-LLC.
"MEDITRUST MORTGAGE" shall mean any Encumbrance granted or assumed by any
Meditrust Entity (or any predecessor in interest to any Meditrust Entity that
was directly or indirectly owned and controlled by Meditrust or Meditrust-BT)
that now or hereafter encumbers the interest of any Meditrust Entity in any of
the Assets, any of the Securities and/or any of the Properties.
"MEDITRUST-NH" shall mean Meditrust of New Hampshire, Inc., a Delaware
corporation that was merged into Meditrust-LLC.
"MEDITRUST-NJ" shall mean Meditrust of New Jersey, Inc., a Delaware
corporation that was merged into Meditrust-LLC.
"MEDITRUST-NY" shall mean Meditrust of New York, Inc., a Delaware
corporation that was merged into Meditrust-LLC.
"MEDITRUST PARTIES" shall mean collectively Meditrust and the Sellers.
32
"MEDITRUST PARTIES' CLOSING CERTIFICATION" shall have the meaning ascribed
to such term in Section 7.2.
"MEDITRUST-TRI" shall mean Meditrust Tri-States, Inc., a Delaware
corporation that was merged into Meditrust-LLC.
"MEMBERSHIP INTEREST" shall mean one hundred percent (100%) of the
membership interests in New Meditrust-LLC.
"MHC" shall have the meaning ascribed to such term in the preamble of this
Agreement.
"MILFORD, CT FACILITY" shall mean the "Facility" as defined under the
Milford, CT Lease.
"MILFORD, CT LAND" shall mean the land more particularly described on
EXHIBIT H-5 attached hereto.
"MILFORD, CT LEASE" shall have the meaning set forth on EXHIBIT WW attached
hereto.
"MILFORD, CT LEASED PROPERTY" shall mean collectively the Milford, CT Land
and all of the other "Leased Property" as defined under the Milford, CT Lease.
"MILFORD, NH FACILITY" shall mean the "Facility" as defined under the
Milford, NH Lease.
"MILFORD, NH LAND" shall mean the land more particularly described on
EXHIBIT N-4 attached hereto.
"MILFORD, NH LEASE" shall have the meaning set forth on EXHIBIT WW attached
hereto.
"MILFORD, NH LEASED PROPERTY" shall mean collectively the Milford, NH Land
and all of the other "Leased Property" as defined under the Milford, NH Lease.
"MILFORD, NH FACILITY (CRESTWOOD)" shall mean the "Facility" defined under
the Milford, NH Lease (Crestwood).
"MILFORD, NH LAND (CRESTWOOD)" shall mean the land more particularly
described on EXHIBIT N-5 attached hereto.
33
"MILFORD, NH LEASE (CRESTWOOD)" shall have the meaning set forth on EXHIBIT
WW attached hereto.
"MILFORD, NH LEASED PROPERTY (CRESTWOOD)" shall mean collectively the
Milford, NH Land (Crestwood) and all of the other "Leased Property" as defined
under the Milford, NH Lease (Crestwood).
"MILLBURY, MA FACILITY" shall mean the "Facility" as defined under the
Millbury, MA Lease.
"MILLBURY, MA LAND" shall mean the land more particularly described on
EXHIBIT H-19 attached hereto.
"MILLBURY, MA LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
"MILLBURY, MA LEASED PROPERTY" shall mean collectively the Millbury, MA
Land and all of the other "Leased Property" as defined under the Millbury, MA
Lease.
"MMI" shall have the meaning ascribed to such term in the preamble of this
Agreement.
"MMI COLLATERAL" shall mean collectively (i) the lender's interest under
the Loan Documents and (iii) the Lakeview Leased Property, the Fresno, CA Leased
Property, the Marlton, NJ Leased Property, the Bowling Green, KY Leased
Property, the Kentfield, CA Leased Property and the Bristol-New Bedford, MA
Land.
"MMI LOAN" shall mean the loan in the amount of THIRTY-FIVE MILLION DOLLARS
($35,000,000) to be made by MMI to the Purchaser at the Closing.
"MMI LOAN DOCUMENTS" shall mean collectively all documents, instruments and
agreements evidencing and/or securing the MMI Loan.
"MMI NOTE" shall mean the promissory note evidencing the MMI Loan.
"MODIFIABLE REPRESENTATIONS AND WARRANTIES" shall mean the representations
and warranties identified on EXHIBIT AAA-1 attached hereto.
"▇▇▇▇▇▇ GUARANTY CREDIT AGREEMENT" shall mean that certain Credit
Agreement, dated as of July 17, 1998, as amended, by and among Meditrust and
▇▇▇▇▇▇ Guaranty Trust Company of New York, as Bank and as Administrative Agent
for the Banks, ▇. ▇. ▇▇▇▇▇▇ Securities, Inc., and BT ▇▇▇▇ ▇▇▇▇▇ Incorporated, as
Lead Arrangers, Fleet National Bank and BancBoston Securities Inc., as
Co-Arrangers, Bankers Trust Company, as Bank and as
34
Syndication Agent, BankBoston, N.A. as Bank and as Co-Documentation Agent, Fleet
National Bank, as Bank and Co-Documentation Agent and the Banks listed therein.
"▇▇▇▇▇▇ GUARANTY DOCUMENTS" shall mean all documents, instruments and/or
agreements executed by any Subsidiary evidencing and/or securing the
indebtedness of Meditrust to the Banks under the ▇▇▇▇▇▇ Guaranty Credit
Agreement.
"▇▇▇▇▇▇ GUARANTY LIENS" shall mean collectively all Encumbrances created by
Meditrust, MMI or any Subsidiary encumbering any of the Assets, the Securities,
the Intercompany Notes and/or any of the Lease Documents to secure the
obligations of Meditrust under the ▇▇▇▇▇▇ Guaranty Credit Agreement.
"▇▇▇▇▇▇ GUARANTY RELEASES" shall mean collectively all instruments
necessary to (i) terminate all obligations of the Subsidiaries under the ▇▇▇▇▇▇
Guaranty Documents, (ii) release all of the Subsidiaries from all obligations,
liabilities and debts of any kind or nature whatsoever under the ▇▇▇▇▇▇ Guaranty
Documents and (iii) release the ▇▇▇▇▇▇ Guaranty Liens.
"MORTGAGED PROPERTIES" shall mean the Sun Mortgaged Properties, the Genesis
Mortgaged Properties, the Mariner Mortgaged Property, the Tustin, CA Mortgaged
Property and the Harborside Mortgaged Properties.
"MORTGAGES" shall mean collectively the Sun Mortgages, the Genesis
Mortgages, the Mariner Mortgage, the Tustin, CA Mortgage and the Harborside
Mortgages.
"MULTICARE BANKRUPTCY PROCEEDINGS" shall mean collectively the Bankruptcy
Proceedings identified on EXHIBIT V-4 attached hereto.
"NAPLES, FL FACILITY" shall mean the "Facility" as defined under the
Naples, FL Lease.
"NAPLES, FL LAND" shall mean the land more particularly described on
EXHIBIT N-12 attached hereto.
"NAPLES, FL LEASE" shall have the meaning set forth on EXHIBIT WW attached
hereto.
"NAPLES, FL LEASED PROPERTY" shall mean collectively the Naples, FL Land
and all of the other "Leased Property" as defined under the Naples, FL Lease.
"NEFC" shall mean New England Finance Corporation, a Delaware corporation
that was merged into New Meditrust-LLC.
▇▇
"▇▇▇ ▇▇▇▇▇▇▇, ▇▇ FACILITY" means the "Facility" as defined under the New
Bedford, MA Lease.
"NEW BEDFORD, MA LAND" shall mean the land more particularly described on
EXHIBIT H-13 attached hereto.
"NEW BEDFORD, MA LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
"NEW BEDFORD, MA LEASED PROPERTY" shall mean collectively the New Bedford,
MA Land and all of the other "Leased Property" as defined under the New Bedford,
MA Lease.
"NEW HAVEN, IN FACILITY" shall mean the "Facility" as defined under the New
Haven, IN Lease.
"NEW HAVEN, IN LAND" shall mean the land more particularly described on
EXHIBIT N-10 attached hereto.
"NEW HAVEN, IN LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
"NEW HAVEN, IN LEASED PROPERTY" shall mean collectively the New Haven, IN
Land and all of the other "Leased Property" as defined under the New Haven, IN
Lease.
"NEW LONDON, OH FACILITY" shall mean the "Facility" as defined under the
New London, OH Lease.
"NEW LONDON, ▇▇ ▇▇▇▇" shall mean the land more particularly described on
EXHIBIT I-3 attached hereto.
"NEW LONDON, OH LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
"NEW LONDON, OH LEASED PROPERTY" shall mean collectively the New London, ▇▇
▇▇▇▇ and all of the other "Leased Property" as defined under the New London, OH
Lease.
"NEW MEDITRUST-LLC" shall have the meaning ascribed to such term in the
preamble of this Agreement.
"NEW MILFORD, NJ FACILITY" shall mean the "Facility" as defined under the
New Milford, NJ Lease.
▇▇
"▇▇▇ ▇▇▇▇▇▇▇, ▇▇ LAND" shall mean the land more particularly described on
EXHIBIT H-25 attached hereto.
"NEW MILFORD, NJ LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
"NEW MILFORD, NJ LEASED PROPERTY" shall mean collectively the New Milford,
NJ Land and all of the other "Leased Property" as defined under the New Milford,
NJ Lease.
"NEWINGTON, CT FACILITY" shall mean the "Facility" as defined under the
Newington, CT Lease.
"NEWINGTON, CT LAND" shall mean the land more particularly described on
EXHIBIT H-34 attached hereto.
"NEWINGTON, CT LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
"NEWINGTON, CT LEASED PROPERTY" shall mean collectively the Newington, CT
Land and all of the other "Leased Property" as defined under the Newington, CT
Lease.
"NEWTON, MA FACILITY" shall mean the "Facility" as defined under the
Newton, MA Lease.
"NEWTON, MA LAND" shall mean the land more particularly described on
EXHIBIT H-1 attached hereto.
"NEWTON, MA LEASE" shall have the meaning set forth on EXHIBIT WW attached
hereto.
"NEWTON, MA LEASED PROPERTY" shall mean collectively the Newton, MA Land
and all of the other "Leased Property" as defined under the Newton, MA Lease.
"NONDISTURBANCE AGREEMENTS" shall mean collectively all agreements
currently in force and effect entered into by any Subsidiary recognizing the
occupancy rights of any subtenant under any sublease (other than the Marlton, NJ
Lease and the Wethersfield, CT Lease) relating to any portion of the Leased
Property.
"NORRISTOWN, LP" shall mean Norristown Nursing and Rehabilitation Center
Associates, L.P., a Pennsylvania limited partnership.
"NORRISTOWN, PA FACILITY" shall mean the "Facility" as defined under the
Norristown, PA Loan Agreement.
37
"NORRISTOWN, PA LAND" shall mean the land more particularly described on
EXHIBIT J-8 attached hereto.
"NORRISTOWN, PA LOAN" shall mean the "Loan" as defined in the Norristown,
PA Loan Agreement.
"NORRISTOWN, PA LOAN AGREEMENT" shall mean that certain Construction Loan
Agreement, dated as of May 31, 1995, by and between Norristown, LP and MMI.
"NORRISTOWN, PA MORTGAGE" shall mean that certain Mortgage and Security
Agreement, dated as of May 31, 1995, by Norristown, LP to MMI.
"NORRISTOWN, PA MORTGAGED PROPERTY" shall mean the "Mortgaged Property" as
defined under the Norristown, PA Mortgage.
"NORTHAMPTON, MA FACILITY" shall mean the "Facility" as defined under the
Northampton, MA Lease.
"NORTHAMPTON, MA LAND" shall mean the land more particularly described on
EXHIBIT H-27 attached hereto.
"NORTHAMPTON, MA LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
"NORTHAMPTON, MA LEASED PROPERTY" shall mean collectively the Northampton,
MA Land and all of the other "Leased Property" as defined under the Northampton,
MA Lease.
"NOTICE TO BORROWER" shall mean a notice substantially in the form attached
hereto as EXHIBIT AA-1 advising the applicable Borrower of the assignment of the
lender's interest under the applicable Loan Documents and directing that all
amounts becoming due and payable under the applicable Loan Documents from and
after the Closing Date be paid to or at the direction of the Purchaser.
"NOTICE TO LAW FIRM" shall mean a notice to any law firm that rendered a
Restricted Opinion notifying such law firm of the transfer of the applicable
Loan Documents referenced in such Restricted Opinion to the Purchaser.
"NOTICE TO LENDER" shall mean a notice substantially in the form attached
hereto as EXHIBIT AA-2 advising the applicable Working Capital Lender of the
assignment of the lender's interest under the applicable Loan Documents and/or
the assignment of the Membership Interest, as the case may be.
38
"NOTICE TO SUBTENANT" shall mean a notice in the form attached hereto as
EXHIBIT AA-3 advising the applicable Recognized Subtenant of the assignment of
the Membership Interest.
"NOTICE TO TENANT" shall mean a notice substantially in the form attached
hereto as EXHIBIT AA-4 advising the applicable Tenant of the assignment of the
Membership Interest and directing that all amounts becoming due and payable
under the applicable Lease from and after the Closing Date be paid to or at the
direction of the Purchaser.
"OLDSMAR, FL LAND" shall mean the land more particularly described on
EXHIBIT N-18 attached hereto.
"OLDSMAR, FL MORTGAGE" shall mean that certain Renewal, Consolidation,
Mortgage, Spreader, Assignment and Security Agreement, dated as of October 13,
1994, by and between West Bay, as Mortgagor, and MMI, as Mortgagee, recorded
with the Public Records of Pinellas County in O.R. Book 8812, Page 1833.
"OLDSMAR, FL MORTGAGED PROPERTY" shall mean the "Mortgaged Property" as
defined under the Oldsmar, FL Mortgage.
"OMNIBUS HEALTHSOUTH AGREEMENT" shall mean that certain Omnibus Agreement
regarding Consent to Assignment of Partnership Interest, Termination of
Cross-Default And Cross-Collateralization Provisions, Execution of Guaranty and
Assumption of Obligations, dated as of October 21, 1997, by and among CMS
Tri-Cities Rehabilitation Hospital, Inc., Continental Medical Systems, Inc.,
Horizon/CMS Healthcare Corporation, HEALTHSOUTH, The Center For Health Services,
Inc., Columbia/HCA Healthcare Corporation, MMI, Northern Louisiana Associates
Limited Partnership, the Fresno Partnership, Northeast Arkansas Rehabilitation
Associates Limited Partnership, Topeka Associates Limited Partnership, Fort
Worth Rehab Associates Limited Partnership, Acadian Healthcare Associates
Limited Partnership, Harco Associates Limited Partnership, Tustin Rehab
Hospital, Ltd., Northern Louisiana Rehabilitation Center, Inc., Western Neuro
Care, Inc., CMS Jonesboro Rehabilitation, Inc., Kansas Rehabilitation Hospital,
Inc., Tarrant County Rehabilitation Hospital, Inc., Baton Rouge Rehab, Inc.,
▇▇▇▇▇▇ Rehabilitation Hospital, Inc., and Northeast Tennessee Rehab Hospital,
Ltd., L.P.
"OMNIBUS INTEGRATED LEASE AMENDMENT" shall mean that certain Lease
Modification Agreement, dated as of April 30, 1993, by and among Meditrust-BT,
Meditrust of Missouri, Inc., Meditrust of Alabama, Inc., Treemont of Dallas
Limited, Meditrust of Michigan, Inc., Meditrust at Alpine, Inc., Meditrust of
Ohio, Inc., Meditrust at Mountainview, Inc., Integrated Health Services of
Somerset Valley, Inc., Integrated Health Services of ▇▇▇▇▇ ▇▇▇▇▇, Inc.,
Briarcliff Nursing Home, Inc., Cambridge Group, Inc., Integrated Health Services
of Riverbend, Inc., Alpine Manor, Inc., Elm Creek of IHS, Inc., Spring Creek of
IHS, Inc., Carriage-By-The Lake of IHS, Inc., Firelands of IHS, Inc., Integrated
Health Group, Integrated Health Services, Inc. and Citicorp USA, Inc.
39
"OMNIBUS SUN LEASE AMENDMENT" shall mean that certain Omnibus Amendment to
Facility Lease Agreements, dated as of March 28, 1996, by and among Bergen
Eldercare, Inc., Community Re-Entry Services of Cortland, Inc., Manatee Springs,
Mediplex Management of Texas, Inc., Mediplex of Concord, Inc., MDPLX-CT,
Mediplex of Kentucky, Inc., Mediplex of Maryland, Inc., MDPLX-MA, MDPLX-NJ,
Mediplex of Ohio, Inc., MDPLX-Rehab, New Bedford Nursing Center, Inc., P.M.N.F.
Management, Inc., Quality Nursing Care of Massachusetts, Inc., Sundance
Rehabilitation Corporation, Sunrise Healthcare Corporation, WJ/Mediplex,
Meditrust-BT, Meditrust-▇▇▇▇▇▇, Meditrust-CT, Meditrust-KY, Meditrust-Lynn,
Meditrust-MD, MDT-MA, Meditrust-NJ, Meditrust-NY, Meditrust-Tri, NEFC and PFC.
"OMNIBUS SUN LOAN AMENDMENT" shall mean that certain Omnibus Amendment to
Loan Agreements, dated as of March 28, 1996, by and among GWZ, MCI, MDPLX-MA,
MDPLX-Rehab, Valley View and MMI.
"OPERATING AGREEMENT" shall mean that certain Operating Agreement, dated as
of April 30, 1999, by and between MHC and New Meditrust-LLC.
"OPERATING EXPENSES" shall mean all costs, expenses, charges and fees
relating to the ownership, management, operation, maintenance and repair of the
Real Properties, including electricity, gas, water and sewer charges, telephone
and other public utilities, common area maintenance charges, insurance premiums,
personal property taxes, excise taxes on rent, business occupational taxes,
periodic charges payable under Contracts, and periodic fees payable under
transferable licenses for the operation (as opposed to the construction) of the
Improvements; BUT, EXCLUDING, Real Estate Taxes.
"ORADELL, NJ FACILITY" shall mean the "Facility" as defined under the
Oradell, NJ Lease.
"ORADELL, NJ LAND" shall mean the land more particularly described on
EXHIBIT H-6 attached hereto.
"ORADELL, NJ LEASE" shall have the meaning set forth on EXHIBIT WW attached
hereto.
"ORADELL, NJ LEASED PROPERTY" shall mean collectively the Oradell, NJ Land
and all of the other "Leased Property" as defined under the Oradell, NJ Lease.
40
"ORGANIZATIONAL DOCUMENTS" shall mean collectively the Declaration of
Trust, the Operating Agreement, the Certificate of Formation, the Fresno
Partnership Agreement and the Corporate Documents.
"OTHER ASSETS" shall mean collectively the Other Properties, any Rejected
Facility and the Property and Lease Documents relating thereto and all other
assets of every kind and nature currently held by New Meditrust-LLC (including,
without limitation, the Other Leases) other than the Meditrust-MA Shares, the
Meditrust-Bedford Shares, the Meditrust-California Shares and the Properties
listed on EXHIBIT JJ attached hereto.
"OTHER CONTRACTS" shall mean collectively all service, management and other
contracts relating to the ownership and/or operation of any Other Property
entered into by New Meditrust-LLC or by which any New Meditrust-LLC may be
bound.
"OTHER INTANGIBLE PROPERTY" shall mean with respect to any Other Real
Property, all of the right, title and interest of New Meditrust-LLC in all (i)
warranties, guaranties and Other Permits pertaining to such Other Real Property,
(ii) all Other Contracts pertaining to such Other Real Property and (iii) all
plans and specifications pertaining to such Other Real Property.
"OTHER LEASE DOCUMENTS" shall mean collectively each Other Lease and all
other documents evidencing and/or securing any obligation of any tenant under
any Other Lease.
"OTHER LEASES" shall mean collectively each lease relating to all or any
portion of any Other Property.
"OTHER NOTICES AND MATERIALS" shall mean collectively all notices and
materials received by New Meditrust-LLC that relate to any Other Real Property,
other than any notice received from any Governmental Authority alleging the
violation by New Meditrust-LLC or any of its assets (including, without
limitation, the "Other Assets") of any Legal Requirement.
"OTHER PERMITS" shall mean collectively, all permits, licenses, approvals,
qualifications, rights, variances, permissive uses, accreditations,
certificates, certifications, consents, agreements, contracts, contract rights,
franchises, interim licenses, permits and other authorizations of every nature
whatsoever required by, or issued under, applicable Legal Requirements
benefitting, relating to or affecting any Other Real Property issued by any or
entered into with any Governmental Authority.
"OTHER PERSONAL PROPERTY" shall mean all furniture, equipment, machinery,
inventories, supplies, signs and other tangible personal property, if any, owned
by New Meditrust-LLC that is installed, located or situated on or used in
connection with any Other Real Property.
41
"OTHER PROPERTIES" shall mean collectively all Other Real Properties
together with the Other Personal Property and Other Intangible Property, if any,
related thereto.
"OTHER REAL PROPERTIES" shall mean collectively all other parcels of land
owned by New Meditrust-LLC other than the Land Parcels together with all of the
improvements located thereon.
"PALM HARBOR, FL LAND" shall mean the land more particularly described on
EXHIBIT N-15 attached hereto.
"PALM HARBOR, FL MORTGAGE" shall mean that certain Renewal, Consolidation,
Mortgage, Spreader, Assignment and Security Agreement, dated as of October 13,
1994, by and between Bay Tree, as Mortgagor, and MMI, as Mortgagee, recorded
with the Public Records of Pinellas County in O.R. Book 8812, Page 1952.
"PALM HARBOR, FL MORTGAGED PROPERTY" shall the "Mortgaged Property" as
defined under the Palm Harbor, FL Mortgage.
"PARKERSBURG, WV FACILITY" shall mean the "Parkersburg Facility" as defined
under the West Virginia Loan Agreement.
"PARKERSBURG, WV LAND" shall mean the land more particularly described on
EXHIBIT J-7 attached hereto.
"PARKERSBURG, WV MORTGAGE" shall mean that certain Credit Line Deed of
Trust, Security Agreement and Fixture Filing, dated as of October 13, 1992,
granted by The House of ▇▇▇▇▇▇▇▇, Inc. to ▇▇▇▇▇▇▇ ▇. McElawee and ▇▇▇▇ ▇. ▇▇▇▇▇,
as Trustees for the benefit of MMI, recorded with the Clerk of County Commission
of Wood County, West Virginia in Deed of Trust Book 552, Page 440.
"PARKERSBURG, WV MORTGAGED PROPERTY" shall mean the "Mortgaged Property" as
defined under the Parkersburg, WV Mortgage.
"PEABODY, MA FACILITY" shall mean the "Facility" as defined under the
Peabody, MA Lease.
"PEABODY, MA LAND" shall mean the land more particularly described on
EXHIBIT H-23 attached hereto.
"PEABODY, MA LEASE" shall have the meaning set forth on EXHIBIT WW attached
hereto.
42
"PEABODY, MA LEASED PROPERTY" shall mean collectively the Peabody, MA Land
and all of the other "Leased Property" as defined under the Peabody, MA Lease.
"▇▇▇▇▇▇▇▇▇" shall mean ▇▇▇▇▇▇▇▇▇ Nursing & Rehabilitation Center, Inc., a
Connecticut corporation.
"PENDING LITIGATION" shall mean the matters disclosed on ▇▇▇▇▇▇▇ ▇▇-▇
attached hereto and any other action, suit or proceeding pending against any
Subsidiary as of the Closing Date.
"PERMITS" shall mean collectively, all permits, licenses, approvals,
qualifications, rights, variances, permissive uses, accreditations,
certificates, certifications, consents, agreements, contracts, contract rights,
franchises, interim licenses, permits and other authorizations of every nature
whatsoever required by, or issued under, applicable Legal Requirements
benefitting, relating or affecting any Leased Property issued by any or entered
into with any Governmental Authority.
"PERMITTED EXCEPTIONS" shall mean: (A) all matters of public record as of
the Title Review Date, EXCLUDING, HOWEVER, (i) all Meditrust Mortgages other
than the HUD Financing Documents and (ii) all other Voluntary Liens and Judgment
Liens; (B) all matters as of the date hereof which would have been disclosed by
an ALTA survey; (C) the Intercreditor Agreements; (D) any Encumbrance approved
in writing by the Purchaser; (E) Real Estate Taxes not due and payable as of the
Closing Date; (F) the Lease Documents; (G) the Loan Documents; (H) the
Nondisturbance Agreements, (i) all matters, whether or not of record, that arise
out of the actions of the Purchaser or its agents, representatives or
contractors and (J) Mechanics' Liens.
"PERSON" shall mean any individual, estate, trust, partnership, limited
liability company, limited liability partnership, corporation, Governmental
Authority or other legal entity.
"PERSONAL PROPERTY" shall mean all furniture, equipment, machinery,
inventories, supplies, signs and other tangible personal property, if any, owned
by any Subsidiary or MMI that is installed, located or situated on or used in
connection with any Real Property.
"PETERBOROUGH, NH FACILITY" shall mean the "Facility" as defined under the
Peterborough, NH Lease.
"PETERBOROUGH, NH LAND" shall mean the land more particularly described on
EXHIBIT N-2 attached hereto.
"PETERBOROUGH, NH LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
43
"PETERBOROUGH, NH LEASED PROPERTY" shall mean collectively the
Peterborough, NH Land and all of the other "Leased Property" as defined under
the Peterborough, NH Lease.
"PFC" shall mean Pacific Finance Corporation, a Delaware corporation that
was merged into Meditrust-LLC.
"PRIME RATE" shall mean the variable rate of interest per annum from time
to time announced by the Reference Bank as its prime rate of interest and in the
event that the Reference Bank no longer announces a prime rate of interest, then
the Prime Rate shall be deemed to be the variable rate of interest per annum
which is the prime rate of interest or base rate of interest from time to time
announced by any other major bank or other financial institution reasonably
agreed upon by the Meditrust Parties and the Purchaser.
"PROOFS OF CLAIMS" shall mean collectively all of the proofs of claim filed
by any Subsidiary or MMI in any of the Bankruptcy Proceedings prior to the
Closing Date against any Tenant, any Borrower and/or any Guarantor, including,
without limitation, the proofs of claim identified on EXHIBIT Q-2 attached
hereto.
"PROPERTY" shall mean a Real Property together with the Personal Property
and the Intangible Property, if any, related thereto.
"PROPERTIES" shall mean collectively all the Real Properties together with
the Personal Property and Intangible Property, if any, related thereto.
"PURCHASE OPTIONS" shall mean collectively the purchase options that relate
to the Leased Properties that were granted to certain of the Tenants and are
identified on EXHIBIT BB.
"PURCHASE PRICE" shall mean the purchase price for the Assets as specified
in Section 2.2.
"PURCHASER" shall have the meaning set forth in the preamble of this
Agreement.
"PURCHASER INDEMNIFIED CLAIMS" shall have the meaning ascribed to such term
in Section 3.4(q).
"PURCHASER'S AGENTS" shall mean collectively all of the Purchaser's agents,
advisors, investors, managers, representatives, consultants, attorneys,
employees and lenders.
"PURCHASER'S CLOSING CERTIFICATION" shall have the meaning ascribed to such
term in Section 7.1.
44
"PURCHASER'S DOCUMENTS" shall mean collectively all documents required to
be delivered by the Purchaser at the Closing in order to effectuate the
consummation of the transaction contemplated hereunder.
"PURCHASER'S RETURNS" shall have the meaning ascribed to such term in
Section 8.4(e).
"PURCHASER TITLE OBJECTIONS" shall have the meaning ascribed to such term
in Section 4.2.
"RANDOLPH, MA FACILITY" shall mean the "Facility" as defined under the
Randolph, MA Lease.
"RANDOLPH, MA LAND" shall mean the land more particularly described on
EXHIBIT H-24 attached hereto.
"RANDOLPH, MA LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
"RANDOLPH, MA LEASED PROPERTY" shall mean collectively the Randolph, MA
Land and all of the other "Leased Property" as defined under the Randolph, MA
Lease.
"RAVENSWOOD, WV FACILITY" shall mean the Facility known as the "Ravenswood
Healthcare Center" located in Ravenswood, West Virginia and more fully described
in the Genesis Lease.
"RAVENSWOOD, WV LAND" shall mean the land more particularly described on
EXHIBIT J-2 attached hereto.
"RAVENSWOOD, WV LEASED PROPERTY" shall mean collectively the Ravenswood, WV
Land and all of the other "Leased Property" thereon as defined under the Genesis
Lease.
"REAL ESTATE TAXES" shall mean collectively all taxes, assessments, and
other charges, if any, general, special or otherwise (including, without
limitation, all assessments for public betterments and general or local
improvements), levied or assessed upon or with respect to the ownership of,
and/or all other taxable interests in, any Real Property imposed by any public
or quasi-public authority.
"REAL PROPERTY" shall mean a Land Parcel and the Improvements located
thereon.
"REAL PROPERTIES" shall mean collectively all of the Land Parcels and all
of the Improvements located thereon.
45
"REASON FOR REJECTION" shall have the meaning ascribed to such term in
Section 10.2.
"RECOGNIZED SUBLEASES" shall mean collectively all subleases in force and
effect relating to any portion of any Leased Property that have been approved by
any Subsidiary and entitled to the benefits of agreements made by any Subsidiary
in any Nondisturbance Agreement.
"RECOGNIZED SUBTENANTS" shall mean collectively all lessees under any
Recognized Subleases.
"REFERENCE BANK" shall mean The Chase Manhattan Bank.
"REGENCY" shall mean Regency Health Services, Inc., a California
corporation.
"REJECTED FACILITY" shall have the meaning ascribed to such term in Section
10.2 hereof.
"RELEASED HARBORSIDE BORROWERS" shall mean collectively Belmont Nursing
Center Corp., Oakhurst Manor Nursing Center Corp. and Orchard Ridge Nursing
Center Corp., each a Massachusetts corporation.
"RENT" shall have the meaning ascribed to such term under the Leases.
"RESTRICTED OPINIONS" shall mean collectively each opinion rendered to MMI
by any law firm, other than ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish, LLP or ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
and ▇▇▇▇▇▇▇, in connection with the consummation of any Loan which requires
that, as a condition precedent to any transferee of the holder of the lender's
interest in the applicable Loan being entitled to rely on such opinion, the
addressee of such opinion notify the law firm that rendered such opinion that
such lender's interest is being transferred to the applicable transferee.
"RIGHTS OF FIRST REFUSAL" shall mean collectively the rights of first
refusal that relate to the Leased Properties that were granted to certain
Tenants pursuant to various Leases and are identified on EXHIBIT CC.
"SARASOTA, FL FACILITY" shall mean the "Facility" as defined under the
Sarasota, FL Lease.
"SARASOTA, FL LAND" shall mean the land more particularly described on
EXHIBIT N-14 attached hereto.
"SARASOTA, FL LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
46
"SARASOTA, FL LEASED PROPERTY" shall mean collectively the Sarasota, FL
Land and all of the other "Leased Property" as defined under the Sarasota, FL
Lease.
"SECURITIES" shall mean, with respect to the Subsidiaries, any capital
stock in any Subsidiary that is a corporation, any shares of beneficial interest
in any Subsidiary that is a business trust, any membership interests in any
Subsidiary that is a limited liability company and any partnership interests in
any Subsidiary that is a limited partnership, together with all warrants,
options and other rights (including, without limitation, preemptive rights) to
subscribe to, purchase and/or acquire any of the foregoing together with any
other security convertible into and/or exchangeable for any of the foregoing.
"SECURITY DEPOSITS" shall mean collectively all security deposits held by
the Sellers under any of the Leases.
"SELLER PARTIES" shall mean the Meditrust Entities and their respective
agents, officers, directors, trustees, partners, members, advisors, managers and
employees.
"SELLERS" shall have the meaning set forth in the preamble of this
Agreement.
"SELLERS' RETURNS" shall have the meaning ascribed to such term in Section
8.4(e).
"SISSONVILLE, WV FACILITY" shall mean the "Sissonville Facility" as defined
under the West Virginia Loan Agreement.
"SISSONVILLE, WV LAND" shall mean the land more particularly described on
EXHIBIT J-5 attached hereto.
"SISSONVILLE, WV MORTGAGE" shall mean that certain Credit Line Deed of
Trust, Security Agreement and Fixture Filing, dated as of October 13, 1992,
granted by Glenmark Properties, Inc. to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇ as
Trustees for the benefit of MMI, recorded with the Clerk of County Commission of
Kanawah County, West Virginia, in Deed of Trust Book 2067, Page 64.
"SISSONVILLE, WV MORTGAGED PROPERTY" shall mean the "Mortgaged Property" as
defined under the Sissonville, WV Mortgage.
"SOUTH CHARLESTON, WV FACILITY" shall mean the Facility known as "Valley
Health Village" located in South Charleston, West Virginia and more fully
described in the Genesis Lease.
"SOUTH CHARLESTON, WV LAND" shall mean the land more particularly described
on EXHIBIT J-4 attached hereto.
▇▇
"▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ LEASED PROPERTY" shall mean collectively the South
Charleston, WV Land and all of the other "Leased Property" thereon as defined
under the Genesis Lease.
"SOUTHBURY, CT FACILITY" shall mean the "Facility" as defined under the
Southbury, CT Lease.
"SOUTHBURY, CT LAND" shall mean the land more particularly described on
EXHIBIT H-4 attached hereto.
"SOUTHBURY, CT LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
"SOUTHBURY, CT LEASED PROPERTY" shall mean collectively the Southbury, CT
Land and all of the other "Leased Property" as defined under the Southbury, CT
Lease.
"SOUTHERN CONNECTICUT FACILITY" shall mean the "Facility" as defined under
the Southern Connecticut Lease.
"SOUTHERN CONNECTICUT LAND" shall mean the land more particularly described
on EXHIBIT H-32 attached hereto.
"SOUTHERN CONNECTICUT LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
"SOUTHERN CONNECTICUT LEASED PROPERTY" shall mean collectively the Southern
Connecticut Land and all of the other "Leased Property" as defined under the
Southern Connecticut Lease.
"STAMFORD, CT AMENDMENT" shall mean that certain First Amendment of
Mortgage and Security Agreement, Assignment of Leases and Rents and other Loan
Documents, dated as of June 23, 1994, by and among GWZ, Mediplex Group, Mediplex
Management, Inc. and Sun, recorded with said Land Records in Book 4267, Page
244.
"STAMFORD, CT DEPOSIT PLEDGE AGREEMENT" shall mean that certain Deposit
Pledge Agreement, dated as of December 23, 1993, between GWZ and MMI, as amended
by the Stamford, CT Amendment.
"STAMFORD, CT FACILITY" shall mean the "Facility" as defined under the
Stamford, CT Loan Agreement.
"STAMFORD, CT LAND" shall mean the land more particularly described on
EXHIBIT H-30 attached hereto.
48
"STAMFORD, CT LOAN" shall mean the "Loan" as defined under the Stamford, CT
Loan Agreement.
"STAMFORD, CT LOAN AGREEMENT" shall mean that certain Amendment and
Restatement of Loan Agreement, dated as of June 23, 1994, by and between GWZ and
MMI, as amended by the Omnibus Sun Loan Amendment.
"STAMFORD, CT MORTGAGE" shall mean that certain Mortgage Deed and Security
Agreement, dated as of December 23, 1993, granted by GWZ to MMI, recorded with
the Stamford Land Records in Book 4173, Page 69, as amended by the Stamford, CT
Amendment.
"STAMFORD, CT MORTGAGED PROPERTY" shall mean the "Mortgaged Property" as
defined in the Stamford, CT Mortgage.
"STAMFORD, CT P&S" shall mean that certain Agreement for Purchase and Sale
and Lease, dated as of December 23, 1993, by and among Meditrust-CT, GWZ,
Mediplex-MA and MDPLX-CT, as amended by that certain First Amendment of
Agreement for Purchase and Sale and Lease, dated as of June 23, 1994, by and
among Meditrust-CT, GWZ, Mediplex Group, MDPLX-CT and Sun.
"STOCK" shall mean the stock certificates and corresponding stock powers
listed on EXHIBIT DD attached hereto.
"STONINGTON, CT FACILITY" shall mean the Facility as defined under the
Mariner Loan Agreement.
"STONINGTON, CT LAND" shall mean the land more particularly described on
EXHIBIT M-2 attached hereto.
"STONINGTON, CT DEPOSIT PLEDGE AGREEMENT" shall mean that certain Deposit
Pledge Agreement, dated as of November 1, 1995, by and between ▇▇▇▇▇▇▇▇▇ and
MMI.
"STUDY PERIOD" shall mean the period commencing on the date hereof and
ending at 5:00 P.M. East Coast time on the later to occur of (i) sixtieth (60th)
day after the execution of this Agreement or (ii) the twenty-fifth (25th) day
after the date upon which the Purchaser has received all of the Exhibits
enumerated in Section 3.4(f).
"SUBSIDIARIES" shall mean collectively Meditrust-MA, Meditrust-Bedford,
Meditrust-California, New Meditrust-LLC and the Fresno Partnership.
"SUN" shall mean Sun Healthcare Group, Inc., a Delaware corporation.
49
"SUN AFFILIATED PARTY AGREEMENT" shall mean that certain Affiliated Party
Subordination Agreement, dated as of June 23, 1994, by and among Mediplex Group,
Sun, the Mediplex Affiliated Parties, MMI, MDT-MA, Meditrust-▇▇▇▇▇▇,
Meditrust-Tri, Meditrust-NY, PFC, NEFC, Meditrust-BT, Meditrust-KY, Meditrust-CT
and Plaza Medical Nursing Facility, as amended by that certain First Amendment
to Affiliated Party Subordination Agreement, dated as of September 30, 1995, by
and between Mediplex Group, Sun, the Mediplex Affiliated Parties, WJ/Mediplex,
MMI, MDT-MA, Meditrust-▇▇▇▇▇▇, Meditrust-Tri, Meditrust-NY, PFC, NEFC,
Meditrust-BT, Meditrust-KY, Meditrust-CT, Plaza Medical Nursing Facility,
Meditrust-MD and Meditrust-NJ.
"SUN BANKRUPTCY PROCEEDINGS" shall mean collectively the Bankruptcy
Proceedings identified on EXHIBIT V-5 attached hereto.
"SUN CLOSING LETTER" that certain letter dated as of June 23, 1994, from
Sun, Mediplex Group, Mediplex of New York, Inc., GWZ, Mediplex of Ohio, Inc.,
Mediplex Management of Texas, Inc., MDPLX-MA, MDPLX-CT, MDPLX-Rehab, Sunrise
Healthcare Corporation, Inc., Mediplex of Kentucky, Inc., Quality Nursing Care
of Massachusetts, Inc., MDPLX-NJ, Manatee Springs, P.M.N.F. Management, Inc.,
MCI, Community Re-Entry Services of Cortland, Inc. and Valley View to and
accepted by Meditrust-BT, MMI, MDT-MA, Meditrust-▇▇▇▇▇▇, Meditrust-Tri,
Meditrust-Lynn, Meditrust-NY, PFC, NEFC, Meditrust-KY, Meditrust-CT and Plaza
Medical Nursing Facility.
"SUN GUARANTORS" shall mean collectively Sun, Mediplex and Regency.
"SUN LEASED PROPERTIES" shall mean the "Leased Property" as defined under
each of the Sun Leases.
"SUN LEASES" shall mean the Leases described on EXHIBIT C-1 attached
hereto.
"SUN LOAN AGREEMENTS" shall mean collectively (i) the Boston, MA Loan
Agreement, (ii) the Brookline, MA Loan Agreement, (iii) the Stamford, CT Loan
Agreement and (IV) the ▇▇▇▇▇▇▇, CO Loan Agreement.
"SUN LOANS" shall mean collectively the (i) Boston, MA Loan, (ii) the
Brookline, MA Loan, (iii) the Stamford, CT Loan and (IV) the ▇▇▇▇▇▇▇, CO Loan.
"SUN MORTGAGED PROPERTIES" shall mean collectively the "Mortgaged Property"
as defined under each of the Sun Mortgages.
"SUN MORTGAGES" shall mean collectively (i) Boston, MA Mortgage, (ii) the
Brookline, MA Leasehold Mortgage, (iii) the Stamford, CT Mortgage and (IV) the
▇▇▇▇▇▇▇, CO Mortgage.
▇▇
"▇▇▇▇▇▇ ▇▇▇▇▇" shall mean Sunset Point Nursing Center Corp., a
Massachusetts corporation.
"SWANTON, OH FACILITY" shall mean the "Facility" as defined under the
Swanton, OH Lease.
"SWANTON, ▇▇ ▇▇▇▇" shall mean the land more particularly described on
EXHIBIT N-8 attached hereto.
"SWANTON, OH LEASE" shall have the meaning set forth on EXHIBIT WW attached
hereto.
"SWANTON, OH LEASED PROPERTY" shall mean collectively the Swanton, ▇▇ ▇▇▇▇
and all of the other "Leased Property" as defined under the Swanton, OH Lease.
"TENANT" means any tenant under any Lease.
"TENANT ESTOPPEL CERTIFICATE" shall mean a certificate substantially in the
form attached hereto as EXHIBIT EE-2 executed by any Tenant, that is dated no
more than fifteen (15) days prior to the end of the Study Period, with, subject
to Section 3.4(b) and 3.4(i), only such modifications as are reasonably
acceptable to the Purchaser.
"TERMINATION NOTICE" shall have the meaning ascribed to such term in
Section 4.2.
"TERMINATION THRESHOLD FOR THE MEDITRUST ENTITIES" shall mean an amount
equal to THREE HUNDRED MILLION DOLLARS ($300,000,000).
"TERMINATION THRESHOLD FOR THE PURCHASER" shall mean an amount equal to
FIFTY MILLION DOLLARS ($50,000,000).
"TERMINATION THRESHOLDS" shall mean collectively the Termination Threshold
for the Meditrust Entities and the Termination Threshold for the Purchaser.
"TERM SHEET" shall have the meaning ascribed to such term in Section
3.4(t).
"TERRE HAUTE, IN LAND" shall mean the land more particularly described on
EXHIBIT N-16 attached hereto.
"TERRE HAUTE, IN MORTGAGE" shall mean that certain Renewal, Consolidation,
Mortgage, Spreader, Assignment and Security Agreement, dated as of October 13,
1994, by and between Countryside, as Mortgagor, and MMI, as Mortgagee, recorded
with the Recorder of Vigo County in Record P-20, Page 4579.
51
"TERRE HAUTE, IN MORTGAGED PROPERTY" shall mean the "Mortgaged Property" as
defined under the Terre Haute, IN Mortgage.
"THIRD PARTY PAYOR" shall mean collectively, Medicare, Medicaid, CHAMPUS,
Blue Cross and/or Blue Shield, private insurers and any other Person which
presently maintains third party payor reimbursement programs.
"THIRD PARTY PAYOR PROGRAMS" shall mean collectively all third party payor
programs in which any Facility participates, including, without limitation,
Medicaid, Medicare, CHAMPUS, Blue Cross and/or Blue Shield, Managed Plans, other
private insurance programs and employee assistance programs.
"THORTON, CO ASSIGNMENT AND ASSUMPTION AGREEMENT" shall mean that certain
Assignment and Assumption Agreement dated as of September 1, 1994, by and among
MCI, Valley View, Sunrise Rehab of Colorado, Inc., Sunrise Healthcare of
Colorado, Inc. and MMI.
"THORTON, CO LAND" shall mean the land more particularly described on
EXHIBIT H-31 attached hereto.
"THORTON, CO LOAN" shall mean the "Loan" as defined under the ▇▇▇▇▇▇▇, CO
Loan Agreement.
"▇▇▇▇▇▇▇, CO LOAN AGREEMENT" shall mean that certain Loan Agreement, dated
as of June 23, 1994, by and among MCI, Valley View and MMI, as amended by the
Omnibus Sun Loan Amendment and as affected by the Thorton, CO Assignment and
Assumption Agreement.
"THORTON, CO MORTGAGE" shall mean that certain Deed of Trust and Security
Agreement, dated as of June 23, 1994, granted by MCI to the Public Trustee of
the County of ▇▇▇▇▇, State of Colorado for the benefit of MMI, recorded with the
Office of the ▇▇▇▇▇ County Clerk and Recorder at Book 4349, Page 2, as affected
by the Thorton, CO Assignment and Assumption Agreement.
"THORTON, CO MORTGAGED PROPERTY" shall mean the "Mortgaged Property" as
defined under the Thorton, CO Mortgage.
"TITLE COMMITMENTS" shall mean the various commitments for title insurance
to be issued by the Title Company to the Purchaser pertaining to the Leased
Properties, the Ground Leases and the Mortgages.
"TITLE COMPANY" shall mean Chicago Title Insurance Company or any other
nationally recognized title insurance company engaged by Purchaser to issue the
Title Commitments.
52
"TITLE OBJECTION NOTICE" shall have the meaning ascribed to such term in
Section 4.2.
"TITLE REVIEW DATE" shall have the meaning ascribed to such term in Section
4.2.
"TRANSFER NOTICES" shall mean collectively a notice to each issuer of each
Letter of Credit (in the form attached as an exhibit thereto) that was issued to
MMI irrevocably instructing such issuer to transfer to the Purchaser all rights
of MMI as the beneficiary under the Letter of Credit.
"TROY, OH FACILITY" shall mean the "Facility" as defined under the Troy, OH
Lease.
"TROY, ▇▇ ▇▇▇▇" shall mean the land more particularly described on EXHIBIT
N-9 attached hereto.
"TROY, OH LEASE" shall have the meaning set forth on EXHIBIT WW attached
hereto.
"TROY, OH LEASED PROPERTY" shall mean collectively the Troy, ▇▇ ▇▇▇▇ and
all of the other "Leased Property" as defined under the Troy, OH Lease.
"TUSTIN, CA LAND" shall mean the land more particularly described on
EXHIBIT K attached hereto.
"TUSTIN, CA LOAN" shall mean the "Loan" as defined in the Tustin, CA Loan
Agreement.
"TUSTIN, CA LOAN AGREEMENT" shall mean that certain Loan Agreement, dated
as of June 28, 1991 by and between MMI and Tustin Rehab.
"TUSTIN, CA MORTGAGE" shall mean that certain Deed of Trust and Security
Agreement, dated as of June 28, 1991, granted by Tustin Rehab to Chicago Title
Insurance Company for the benefit of MMI, recorded with the Orange County
Recorder's Office on June 28, 1991 as Document No. 91-336424.
"TUSTIN, CA MORTGAGED PROPERTY" shall mean the "Mortgaged Property" as
defined under the Tustin, CA Mortgage.
"TUSTIN REHAB" shall mean Tustin Rehab Hospital, Ltd., an Alabama limited
partnership.
"UCC ASSIGNMENTS" shall mean collectively UCC-3 assignments executed by MMI
assigning the Financing Statements naming MMI as the secured party to the
Purchaser.
53
"UNLIMITED INDEMNIFIED CLAIM" shall mean any Indemnified Claim asserted
under (i) Section 3.4(q)(ii) or Section 3.4(r)(i), (ii) Section 3.4(q)(iii) that
relates to any of the Other Assets or (iii) Section 3.4(q)(iv).
"VALLEY VIEW" shall mean Valley View Psychiatric Services, Inc., a Colorado
corporation.
"VENICE, FL FACILITY" shall mean the "Facility" as defined under the
Venice, FL Lease.
"VENICE, FL LAND" shall mean the land more particularly described on
EXHIBIT N-13 attached hereto.
"VENICE, FL LEASE" shall have the meaning set forth on EXHIBIT WW attached
hereto.
"VENICE, FL LEASED PROPERTY" shall mean collectively the Venice, FL Land
and all of the other "Leased Property" as defined under the Venice, FL Lease.
"VOLUNTARY LIENS" shall mean collectively (i) the Fresno Deed of Trust and
the ▇▇▇▇▇▇ Guaranty Liens, (ii) any other Meditrust Mortgage and (iii) all
Mechanics' Liens.
"WATERFORD, WI FACILITY" shall mean the "Facility" as defined under the
Waterford, WI Lease.
"WATERFORD, WI LAND" shall mean the land more particularly described on
EXHIBIT L-2 attached hereto.
"WATERFORD, WI LEASE" shall mean that certain Amended and Restated Facility
Lease Agreement, dated as of the 30th day of September, 1997, by and between
Meditrust-Tri and Lakeview Midwest, as amended by the Lakeview Lease Amendments.
"WATERFORD, WI LEASED PROPERTY" shall mean collectively the Waterford, WI
Land and all of the other "Leased Property" as defined under the Waterford, WI
Lease.
"WEST BAY" shall mean West Bay Nursing Center Corp., a Massachusetts
corporation.
"WEST CARROLTON, OH FACILITY" shall mean the "Facility" as defined under
the West Carrolton, OH Lease.
"WEST CARROLTON, ▇▇ ▇▇▇▇" shall mean the land more particularly described
on EXHIBIT I-5 attached hereto.
▇▇
"▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
"WEST CARROLTON, OH LEASED PROPERTY" shall mean collectively the West
Carrolton, ▇▇ ▇▇▇▇ and all of the other "Leased Property" as defined under the
West Carrolton, OH Lease.
"WEST VIRGINIA LOAN" shall mean the "Loan" as defined in the West Virginia
Loan Agreement.
"WEST VIRGINIA LOAN AGREEMENT" shall mean that certain Loan Agreement,
dated as of October 13, 1992, by and among Glenmark Associates, Inc., Glenmark
Properties, Inc., Glenmark Associates-Dawnview Manor, Inc., ▇▇▇▇ View Manor,
Inc., GMA-Uniontown, Inc., Rest Haven Nursing Home, Inc., The House of ▇▇▇▇▇▇▇▇,
Inc. and MMI.
"WEST VIRGINIA MORTGAGES" shall mean collectively the Fort ▇▇▇▇▇, WV
Mortgage, the Parkersburg, WV Mortgage and the Sissonville, WV Mortgage.
"WESTPORT, CT FACILITY" shall mean the "Facility" as defined under the
Westport, CT Lease.
"WESTPORT, CT LAND" shall mean the land more particularly described on
EXHIBIT H-11 attached hereto.
"WESTPORT, CT LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
"WESTPORT, CT LEASED PROPERTY" shall mean collectively the Westport, CT
Land and all of the other "Leased Property" as defined under the Westport, CT
Lease.
"WETHERSFIELD, CT LAND" shall mean the land more particularly described on
EXHIBIT H-10 attached hereto.
"WETHERSFIELD, CT LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
"WETHERSFIELD, CT LEASED PROPERTY" shall mean collectively the lessee's
interest under the Wethersfield Ground Lease and all of the other "Leased
Property" as defined under the Wethersfield, CT Lease.
"WETHERSFIELD GROUND LEASE" shall mean that certain Lease, dated August 24,
1964, between The Crosstone Realty Company and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as landlords,
and ▇▇▇▇▇▇ ▇▇▇▇ Convalescent Hospital, Inc, as tenant, as amended and/or
affected by (i) Amendment to Lease
55
dated May 5, 1976 by and between The Crosstone Realty Company, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
and ▇▇▇▇▇▇ ▇▇▇▇ Convalescent Hospital, Inc., (ii) an Assignment of Lease dated
May 5, 1976 by and between ▇▇▇▇▇▇ ▇▇▇▇ Convalescent Hospital, Inc. and
Wethersfield Manor, Inc. and (iii) the MDPLX-CT Assignment.
"WETHERSFIELD GROUND LESSOR" shall mean The Crosstone Realty Company and
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or any successor in interest that is the current holder of the
lessor's interest under the Wethersfield Ground Lease.
"WETHERSFIELD GROUND LESSOR'S ESTOPPEL CERTIFICATE" shall mean an estoppel
certificate relating to the Wethersfield Ground Lease in substantially the form
attached hereto as EXHIBIT FF-1, that is dated no more than fifteen (15) days
prior to the end of the Study Period, with, subject to Section 3.4(e), only such
modifications as are reasonably acceptable to the Purchaser.
"WEYMOUTH, MA DEPOSIT PLEDGE AGREEMENT" shall mean that certain Deposit
Pledge Agreement, dated as of June 23, 1994, between Meditrust of Massachusetts,
Inc. (predecessor-in-interest to Meditrust-MA) and MDPLX-MA.
"WEYMOUTH, MA FACILITY" shall mean the "Facility" as defined under
Weymouth, MA Lease.
"WEYMOUTH, MA LAND" shall mean the land more particularly described on
EXHIBIT H-14 attached hereto.
"WEYMOUTH, MA LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
"WEYMOUTH, MA LEASED PROPERTY" shall mean collectively the Weymouth, MA
Land and all of the other "Leased Property" as defined under the Weymouth, MA
Lease.
"WHITE SULPHUR SPRINGS, WV FACILITY" shall mean the Facility known as
"White Sulphur Springs Family Care Center" located in White Sulphur Springs,
West Virginia and more fully described in the Genesis Lease.
"WHITE SULPHUR SPRINGS, WV LAND" shall mean the land more particularly
described on EXHIBIT J-3 attached hereto.
"WHITE SULPHUR SPRINGS, WV LEASED PROPERTY" shall mean collectively the
White Sulphur Springs, WV Land and all of the other "Leased Property" thereon as
defined under the Genesis Lease.
56
"WILMINGTON, MA FACILITY" shall mean the "Facility" as defined under the
Wilmington, MA Lease.
"WILMINGTON, MA LAND" shall mean the land more particularly described on
EXHIBIT H-22 attached hereto.
"WILMINGTON, MA LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
"WILMINGTON, MA LEASED PROPERTY" shall mean collectively the Wilmington, MA
Land and all of the other "Leased Property" as defined under the Wilmington, MA
Lease.
"WINCHESTER, NH FACILITY"shall mean the "Facility" as defined under the
Winchester, NH Lease.
"WINCHESTER, NH LAND" shall mean the land more particularly described on
EXHIBIT N-6 attached hereto.
"WINCHESTER, NH LEASE" shall have the meaning set forth on EXHIBIT WW
attached hereto.
"WINCHESTER, NH LEASED PROPERTY" shall mean the Winchester, NH Land and all
of the other "Leased Property" as defined under the Winchester, NH Lease.
"WJ/MEDIPLEX" shall mean West Jersey/Mediplex Rehabilitation Limited
Partnership, a New Jersey limited partnership.
"▇▇▇▇▇ EDGE GROUND LEASE" shall mean that certain Ground Lease, dated as of
June 30, 1995, by and between Meditrust-LLC and Greenfield.
"▇▇▇▇▇ EDGE LAND" shall mean the land more particularly described on
EXHIBIT N-19 attached hereto.
"▇▇▇▇▇ EDGE LEASED PROPERTY" shall mean collectively the ▇▇▇▇▇ Edge Land
and all of the remainder of "Demised Premises" as defined under the ▇▇▇▇▇ Edge
Ground Lease.
"WORK" shall have the meaning ascribed to such term in Section 4.1.
"WORKING CAPITAL LENDERS" shall mean collectively each Person that is a
party to any Intercreditor Agreement other than (i) MMI or any of the
Subsidiaries and (ii) any Borrower, any Tenant and/or any Guarantor that may be
a party to any Intercreditor Agreement.
57
ARTICLE 2
AGREEMENT; PURCHASE PRICE
SECTION 2.1. AGREEMENT TO SELL AND PURCHASE. Subject to the terms and
provisions hereof, each Seller agrees to sell, assign or otherwise transfer to
the Purchaser all of such Seller's right, title and interest in the Assets, and
the Purchaser agrees to purchase, or cause its nominees or designees to
purchase, the Assets from the Sellers; PROVIDED, HOWEVER, THAT, at the time of
the consummation of the Closing, (a) the Meditrust Entities shall have fulfilled
all of their obligations hereunder in all material respects and all conditions
precedent to the Sellers' obligations to consummate the Closing set forth in
Section 3.2 of this Agreement shall have been satisfied in all material respects
and (b) the Purchaser shall have fulfilled all of its obligations hereunder in
all material respects and all of the conditions precedent to the Purchaser's
obligation to consummate the Closing set forth in Section 3.1 of this Agreement
shall have been satisfied in all material respects (the matters referred to in
the foregoing Clauses (a) and (b) are collectively referred to herein as the
"Closing Conditions").
SECTION 2.2. PURCHASE PRICE. In consideration of the sale, assignment or
transfer by the Sellers of the Assets to the Purchaser, the Purchaser agrees to
pay to the Sellers FOUR HUNDRED SIXTY-SEVEN MILLION SIX HUNDRED THOUSAND DOLLARS
($467,600,000) (the "Purchase Price"). Subject to the adjustments and
apportionments as hereinafter expressly set forth, the Purchaser shall pay the
Purchase Price on the Closing Date as follows: (a) FOUR HUNDRED THIRTY-TWO
MILLION SIX HUNDRED THOUSAND DOLLARS ($432,600,000) shall be paid by wire
transfer of immediately available federal funds in accordance with the Sellers'
directions and (b) THIRTY-FIVE MILLION DOLLARS ($35,000,000) shall be paid by
the delivery of the MMI Note. Solely for the purposes of determining (i) any
applicable transfer taxes payable in connection with the transfer of the Assets,
(ii) the applicable Allocated Value for any Rejected Facility and (iii) whether
any Termination Threshold has been achieved, the Purchase Price shall be
allocated amongst the Assets as set forth on the Allocated Value Schedule. Such
allocation shall not be binding on the Meditrust Entities and the Purchaser for
any other purpose.
SECTION 2.3. DEPOSIT.
(a) DEPOSIT. Unless the Purchaser has terminated this Agreement pursuant to
Section 4.2 hereof, prior to 5 P.M. East Coast time on the third (3rd) Business
Day following the expiration of the Study Period, the Purchaser shall deposit
with the Escrow Agent a deposit in the amount of TEN MILLION DOLLARS
($10,000,000.00) (such deposit and the interest earned thereon shall be referred
to as the "Deposit"). The Deposit shall be invested as directed by the
Purchaser. If the parties perform all of their obligations under this Agreement,
the Deposit shall be applied against the Purchase Price on the Closing Date. If
the transaction contemplated hereby is not consummated on the Closing Date, the
Deposit shall be disposed of in the manner hereinafter provided.
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(b) ESCROW AGENT'S DUTIES. The Escrow Agent shall not be liable for any
action or inaction taken in good faith in connection with the performance of its
duties hereunder but shall be liable only for its negligence, willful default or
misconduct. Notwithstanding anything in this Agreement to the contrary, should
any dispute arise with respect to the Deposit, the Escrow Agent shall retain the
same until such dispute has been settled (i) by mutual agreement of the parties
or (ii) by final order, decree or judgment of a court of competent jurisdiction
(and no such order, decree or judgment shall be deemed final unless the time of
appeal has expired and no appeal has been perfected) and the Escrow Agent shall
make payment of the Deposit as the parties may have mutually agreed or in
accordance with such final order, decree or judgment. In no event shall the
Escrow Agent be under any duty whatsoever to institute or defend any such
proceeding.
ARTICLE 3
CONDITIONS PRECEDENT; ACTIVITIES PRIOR TO CLOSING AND OTHER COVENANTS
SECTION 3.1. CONDITIONS PRECEDENT FAVORING THE PURCHASER. In addition to
any other condition precedent in favor of the Purchaser as may be expressly set
forth elsewhere in this Agreement, the Purchaser's obligations under this
Agreement are subject to the timely fulfillment in all material respects of the
conditions set forth in this Section 3.1 on or before the Closing Date (provided
that the Purchaser may waive any such condition in writing). Notwithstanding the
foregoing, BUT subject to (i) the provisions of Section 10.2 and Section 11.4
hereof, (ii) the survival of all indemnification agreements made by the
Meditrust Parties herein, (iii) the survival of any obligations set forth herein
which by their express terms are to be performed subsequent to the Closing and
(iv) the survival of any indemnification agreements made by the Meditrust
Parties in the Meditrust Documents, any condition precedent to the Closing which
has not been fulfilled, complied with, satisfied or performed at or prior to the
Closing Date shall be conclusively deemed waived if the Purchaser consummates
the Closing despite the lack of fulfillment, compliance with, satisfaction or
performance of such condition; PROVIDED, HOWEVER, that, subject to Section 7.2
hereof, in the event that any of the Express Representations and Warranties
should prove to be untrue in any material respect, nothing contained herein
shall be deemed to waive any right or remedy the Purchaser may have pursuant to
Section 11.4 hereof.
(a) Subject to Section 10.2 hereof, the Sellers shall have delivered all of
the items set forth in Section 8.2 hereof.
(b) Subject to Section 10.2 hereof, on the Closing Date, each of the
Properties shall be (x) free of all tenants and occupants except (i) the
Tenants, (ii) the Borrowers, (iii) the Recognized Subtenants, (iv) patients at
the Facilities, (v) any subtenants under any subleases permitted under the terms
of any of the Lease Documents or Loan Documents, (vi) any other occupant
occupying any Facility as of the expiration of the Study Period and (vii) any
other occupant occupying any Facility (provided, that, such occupant does not
occupy more than twenty-five percent (25%) of any Facility) and (y) in the same
condition as it is at the end of the Study Period, reasonable wear and tear and
the provisions of Article 6 excepted.
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(c) On the Closing Date, the Membership Interest, free and clear of all
Encumbrances, shall be assigned by MHC to the Purchaser.
(d) Subject to Section 3.3(h), Section 4.2, Article 6, Section 8.4(h) and
Section 10.2 hereof, on the Closing Date, the lender's interest in the Loan
Documents, free and clear of all Encumbrances other than the Permitted
Exceptions, shall be assigned by MMI to the Purchaser.
(e) Subject to Section 3.3(h), Section 4.2, Article 6, Section 8.4(h) and
Section 10.2 hereof, on the Closing Date, the Subsidiaries shall hold (i) good
and clear record and marketable fee title to the Leased Properties (other than
the Marlton, NJ Leased Property and the Wethersfield, CT Leased Property)
subject only to the Permitted Exceptions, (ii) the landlord's interest in the
Lease Documents, free and clear of all Encumbrances other than the Permitted
Exceptions and (iii) the lessee's interest under the Ground Leases, free and
clear of all Encumbrances other than the Permitted Exceptions.
(f) On the Closing Date, the Purchaser shall have received the Meditrust
Parties' Closing Certification.
(g) On the Closing Date, subject to Section 10.2 hereof, there shall then
be no material breach by the Meditrust Entities of their obligations hereunder.
(h) On the Closing Date, the waiting period under the HSR Act shall have
been terminated or expired after providing the Filing of a Notification and
Report Form in accordance with Section 3.4(a), with no action by any
Governmental Authority having been taken during such waiting period seeking to
prevent or substantially modify the transaction contemplated hereunder.
(i) Subject to Section 10.2 and Section 10.3 hereof, there shall be no
injunction, writ, temporary restraining order or any order of any nature issued
by any Governmental Authority directing that the transaction contemplated by
this Agreement not be consummated (an "Injunction") which has not been
dissolved, revoked, cancelled or rescinded prior to the Closing.
(j) On the Closing Date, subject to Section 3.4, Section 4.2 and Section
10.2 hereof, the Sellers shall have received the Consents.
(k) On the Closing Date, subject to Section 3.4, Section 4.2 and Section
10.2 hereof, the Sellers shall have delivered to the Purchaser, a Borrower
Estoppel Certificate from each Borrower that is not the subject of a Bankruptcy
Proceeding as of the Closing Date and a Tenant Estoppel Certificate from each
Tenant that is not the subject of a Bankruptcy Proceeding as of the Closing
Date.
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(l) On the Closing Date, subject to the provisions of Section 4.2 and 10.2
hereof, the Purchaser Title Objections shall have been cured.
SECTION 3.2. CONDITIONS PRECEDENT FAVORING THE MEDITRUST ENTITIES. In
addition to any other condition precedent in favor of the Meditrust Entities as
may be expressly set forth elsewhere in this Agreement, the Meditrust Entities'
obligations under this Agreement are expressly subject to the timely fulfillment
in all material respects of the conditions set forth in this Section 3.2 on or
before the Closing Date (PROVIDED, THAT the Meditrust Parties may waive any such
condition in writing). Notwithstanding the foregoing, BUT subject to Section
10.2 hereof, any condition precedent to the Closing which has not been
fulfilled, complied with, satisfied or performed at or prior to the Closing Date
shall be conclusively deemed waived if the Sellers consummate the Closing
despite the lack of fulfillment, compliance with, satisfaction or performance of
such condition.
(a) The Purchaser shall have delivered all of those items set forth in
Section 8.3 hereof.
(b) Payment of the Purchase Price.
(c) Subject to Section 10.2 and Section 10.3 hereof, there shall be no
Injunction, issued by any Governmental Authority which has not been dissolved,
revoked, cancelled or rescinded prior to the Closing.
(d) The waiting period under the HSR Act shall have been terminated or
expired after providing the Filing of a Notification and Report Form in
accordance with Section 3.4(a), with no action by any Governmental Authority
having been taken during such waiting period seeking to prevent or substantially
modify the transaction contemplated hereunder.
(e) Subject to Section 3.4, Section 4.2 and Section 10.2 hereof, the
Sellers shall have received the Consents.
(f) The Sellers shall have received the Purchaser's Closing Certification.
(g) The MMI Loan shall have been consummated in accordance with the terms
of Section 3.4(t).
(h) The Bradenton P&S shall have been executed and delivered immediately
prior to and/or concurrently with the consummation of the Closing.
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SECTION 3.3. ACTIVITIES OF THE MEDITRUST ENTITIES PRIOR TO CLOSING. During
the term of this Agreement, the Meditrust Entities:
(a) subject to Section 3.4(w) hereof, shall not enter into any new (i)
Lease Documents, Loan Documents, HUD Financing Documents, Bradenton, FL
Documents, Contracts or Permits, (ii) modify any existing Lease Document, Loan
Document, HUD Financing Document, Bradenton, FL Document, Contract or Permit, in
any material respect, (iii) modify the Organizational Documents or (iv) grant
any consent or approval under the Fresno Partnership Agreement or any existing
Lease Document, Loan Document, Bradenton, FL Lease Document, Contract or Permit
nor waive any right or remedy thereunder; in each case, without the Purchaser's
prior written approval, which approval shall not be unreasonably withheld,
delayed or conditioned;
(b) without limiting the provisions of Section 3.3(j) and Section 3.3(k),
shall give notice to the Purchaser, as soon as practical, of (i) any monetary or
other material default under any of the Lease Documents, any of the Loan
Documents and/or any of the Bradenton, FL Documents first arising after the date
hereof or first becoming known to the Meditrust Entities after the date hereof
(other than the failure by any Borrower that is the subject of any existing
Bankruptcy Proceeding to make any payments under any applicable Loan Documents),
without any requirement upon the Meditrust Entities to make any investigation or
inquiry as to the existence of any such default, (ii) any notice of default
hereafter received by any Meditrust Entity under any of the Lease Documents, the
Ground Leases, the Loan Documents, the Bradenton, FL Documents, the
Intercreditor Agreements, the HUD Financing Documents, the Ground Leases, the
Concord Option Agreement, the Concord Management Agreement, the Fresno
Partnership Agreement, the Permitted Exceptions, the Permits and/or the
Stamford, CT P&S and (iii) any notice received by any Meditrust Entity after the
date hereof in connection with any Bankruptcy Proceeding or the Manatee Springs
Bankruptcy Proceeding; and, in each instance, except as may be required by
applicable Legal Requirements or in the event of an emergency, the Meditrust
Entities shall only take action with respect thereto with the Purchaser's prior
written approval, which approval shall not be unreasonably withheld, delayed or
conditioned;
(c) shall use reasonable efforts to cause the Tenants and the Borrowers to
maintain in effect their existing policies of insurance as reflected in the
Insurance Certificates;
(d) shall not remove any Personal Property from any Real Property except in
the ordinary course of business;
(e) shall comply, in all material respects, with all of their respective
obligations under the (i) Lease Documents and the Bradenton, FL Lease Documents,
(ii) Loan Documents, (iii) Fresno Partnership Agreement, (iv) Ground Leases and
the HUD Financing Documents (to the extent that such obligations (X) are not
passed through to any Tenant under any of the Leases or (y) are passed through
to any Tenant and to the best knowledge of the Meditrust Entities, are not being
performed, in all material respects, by the applicable Tenant) and (v) the
Intercreditor Agreements;
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(f) shall not enter into any new exceptions to title, governmental
commitments, agreements regarding governmental impositions, or any other
agreement which would be binding upon the Purchaser, any of the Subsidiaries,
any of the Assets or any of the Properties after the Closing, without the
Purchaser's prior written approval, which approval shall not be unreasonably
withheld, delayed or conditioned;
(g) shall cooperate in a reasonable manner with the Purchaser's due
diligence review;
(h) shall not grant any Voluntary Lien and, subject to Section 8.4(h), at
or prior to the Closing Date shall satisfy and/or obtain releases or
terminations of (either by payment or posting a bond or entering into escrow
arrangements acceptable to the Title Company) all (i) Voluntary Liens, (ii)
Judgment Liens, (iii) ▇▇▇▇▇▇ Guaranty Liens and (iv) other Meditrust Mortgages
excluding the HUD Mortgage;
(i) shall not convey, assign, hypothecate, transfer, dispose of or
encumber, or, except as otherwise provided in any of the Lease Documents and/or
Loan Documents, assent to the conveyance, assignment, transfer, hypothecation,
disposal or encumbrance of all or any portion of any legal or beneficial
interest in any of the Assets, any of the Securities or any of the Properties;
(j) without limiting the provisions of Sections 3.3(b) and Section 3.3(k),
shall send to the Purchaser, as soon as practical, a copy of any notice
(excluding, however, all Other Notices and Materials) hereafter received by any
Meditrust Entity that pertains to any of the Assets, any of the Subsidiaries,
any of the Properties, the Bradenton, FL Leased Property and/or the transaction
contemplated hereunder that notifies any Meditrust Entity of any state of facts
or condition that could have a material adverse affect thereon;
(k) without limiting the provisions of Section 3.3(b) and Section 3.3(j)
shall provide to the Purchaser, as soon as practical, a copy of any materials
(excluding, however, all Other Notices and Materials) received after the date
hereof by any Meditrust Entity from (i) any Tenant, any Borrower, any Guarantor,
Manatee Springs, any Governmental Authority, any insurance company and/or any
Third Party Payor (and/or any of their respective counsel or agents) that
pertains to any of the Assets, any of the Subsidiaries, any of the Properties,
the Bradenton, FL Leased Property, any Tenant, any Borrower, Manatee Springs
and/or any Guarantor, (ii) any Governmental Authority alleging the violation by
New Meditrust-LLC or any of its assets (including, without limitation, the
"Other Assets") of any Legal Requirement, (iii) any other Person asserting any
claim against or that could reasonably be expected to have a material adverse
effect on any Tenant, any Borrower, any Guarantor, any Asset, any Property
and/or any Subsidiary;
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(l) shall give the Purchaser prior notice of any action taken with respect
to any Bankruptcy Claims and/or the Bradenton, FL Bankruptcy Claims; PROVIDED,
HOWEVER, THAT, from and after the expiration of the Study Period, the Meditrust
Entities shall only take action with respect to the Bankruptcy Claims and/or the
Bradenton, FL Bankruptcy Claims as the Purchaser may reasonably direct;
(m) shall maintain their legal existence, good standing and qualifications
to do business in each jurisdiction where such qualification is necessary in
order to carry out its business as presently conducted and continue to act in
the ordinary course of business with respect to the Assets and the Properties
during the pendency of this Agreement;
(o) agree that they will not negotiate or discuss with any party (other
than the Purchaser) the potential sale of all or any of the Assets, the
Properties or the Bradenton, FL Leased Property to such party, PROVIDED,
HOWEVER, that the Meditrust Entities may discuss the transaction contemplated by
this Agreement (i) with their legal counsel, accountants, lenders, consultants
and/or any other parties to the extent reasonably required in order to perform
their obligations hereunder and (ii) to the extent required by law or court
order;
(p) shall send the Purchaser written notice of any change in the officers,
directors, trustees and/or managers of any Subsidiary; and
(q) agree that without limiting the provisions of Section 10.3 hereof, in
the event that prior to the Closing, any party seeks to obtain any Injunction or
any Injunction is issued by any Governmental Authority, the Sellers shall use
their best efforts to obtain the denial of the request for, and if granted, the
dissolution, revocation, cancellation or rescission of, the Injunction.
In the event that under the terms of this Section 3.3, (X) the Meditrust
Entities request the Purchaser's approval for any matter as required hereunder
and the Purchaser does not respond to the Meditrust Entities within five (5)
Business Days after receipt of a written request from any Meditrust Entity,
THEN, the Purchaser shall be deemed to have given its approval to such request
and (y) the Purchaser's approval is required for any matter, the Meditrust
Entities may proceed without the Purchaser's approval in the event that the
Meditrust Entities are required to take any action under any applicable Legal
Requirements or in the event of any emergency; PROVIDED, THAT, the Meditrust
Entities promptly advise the Purchaser (as soon as is practical) of such
circumstance and the actions undertaken by the Meditrust Entities and the
Purchaser is given the opportunity to contest (or to direct the Meditrust
Entities to contest), at the Purchaser's expense, the need to take action under
the applicable Legal Requirements.
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SECTION 3.4. OTHER COVENANTS.
(a) HSR NOTIFICATION. Within thirty (30) days after the date hereof, the
Sellers and the Purchaser shall each execute and file the Filing of a
Notification and Report Form required under the HSR Act.
(b) BORROWER AND TENANT ESTOPPEL CERTIFICATES. The Meditrust Entities shall
use their best efforts to obtain Borrower Estoppel Certificates from each
Borrower and Tenant Estoppel Certificates from each Tenant; PROVIDED, HOWEVER,
that it is acknowledged and agreed that (i) the delivery of any such Borrower
Estoppel Certificate from any Borrower that is the subject of any Bankruptcy
Proceeding as of the Closing Date and any such Tenant Estoppel Certificate from
any Tenant that is the subject of any Bankruptcy Proceeding as of the Closing
Date does not constitute a Closing Condition and (ii) notwithstanding anything
to the contrary set forth herein in the event that the Termination Notice is not
given by the Purchaser in accordance with the terms of Section 4.2 hereof, the
Purchaser waives all rights to object to the form or substance of, or failure to
deliver any, Borrower Estoppel Certificate or Tenant Estoppel Certificate. As
used herein best efforts shall mean (X) promptly sending out the applicable
forms of Estoppel Certificates to each Borrower and each Tenant with a request
that such Estoppel Certificates be returned within twenty (20) days, (y)
contacting each Borrower and Tenant by phone to discuss the completion of such
Estoppel Certificates and (z) responding (after consultation with the Purchaser)
to any reasonable requests made by any Borrower or Tenant with respect to such
Estoppel Certificates; PROVIDED, HOWEVER, that the Meditrust Entities shall not
be obligated to file any motion in any of the Bankruptcy Proceedings to compel
any applicable Borrower or Tenant that is subject to any Bankruptcy Proceeding
to deliver such Estoppel Certificate.
(c) HUD LOAN. The Meditrust Entities shall use their best efforts to obtain
the HUD Estoppel Certificate. The parties hereto acknowledge and agree that any
disclosure in the HUD Estoppel Certificate of the existence of any default under
the HUD Financing Documents shall not constitute a basis for the Purchaser to
object to the HUD Estoppel Certificate unless any such default under the HUD
Estoppel Certificate is not cured or waived in writing on or prior to the
Closing Date.
At the Sellers' sole cost and expense, the Sellers shall use their best
efforts to obtain all consents required under the HUD Financing Documents
(collectively, the "HUD Consents") to allow the assignment of the Membership
Interest. The Meditrust Entities and the Purchaser agree to execute and deliver
such documents, instruments, certificates and agreements as may be reasonably
required pursuant to the terms of the HUD Consents, provided that the same are
mutually acceptable to the Sellers and the Purchaser (collectively, the "HUD
Assignment and Assumption Documents"). The Purchaser agrees to reasonably
cooperate with the Sellers in connection with the Sellers' efforts to obtain the
HUD Consents, which cooperation shall include, without limitation, providing any
financial information pertaining to the Purchaser (or its Affiliates) requested
by the HUD Mortgagee. At the Closing, the Purchaser shall be entitled to a
credit toward the Purchase Price in the amount of the principal indebtedness
outstanding under the HUD Financing Documents as of the Closing
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Date; PROVIDED, HOWEVER, that to the extent that any interest has accrued
thereunder for the then current interest period in which the Closing occurs and
such interest is not payable until after the Closing, THEN, there shall be no
credit to the Purchase Price for such unpaid interest (as such interest payment
obligation has been passed through to the applicable Tenant under the Bedford,
NH Lease).
In the event that, as of the Closing Date (as the same may have been
extended), the Sellers have not obtained the HUD Consents, THEN, subject to the
other terms and provisions hereof (a) prior to the consummation of the
transaction contemplated hereunder, New Meditrust-LLC shall transfer the
Meditrust-Bedford Shares to MHC, (b) the Purchaser shall be entitled to a credit
to the Purchase Price at the Closing in the amount of the Allocated Value
relating to the Bedford, NH Facility, (c) the Sellers shall continue to use
their best efforts to obtain the HUD Consents, (d) the Purchaser shall remain
obligated to acquire and MHC shall remain obligated to sell the
Meditrust-Bedford Shares to the Purchaser in accordance with the terms hereof
(for a purchase price equal to the Allocated Value relating to the Bedford, NH
Facility), MUTATIS, MUTANDIS, provided that the Sellers obtain the HUD Consents
within three hundred sixty-five (365) days after the Closing Date and (e)
notwithstanding anything to the contrary set forth herein, the Bedford, NH
Facility shall not be deemed to be a Rejected Facility (solely by virtue of the
failure to obtain the HUD Consents prior to the Closing Date). The parties
hereto shall consummate such sale and acquisition of the Bedford, NH Leased
Property as soon as is reasonably practical after the HUD Consents have been
obtained, BUT, in no event, more than thirty days (30) after the HUD Consents
have been obtained. If the Sellers do not obtain the HUD Consents or elect to
prepay the indebtedness evidenced by the HUD Financing Documents within three
hundred sixty-five (365) days after the Closing Date, then all obligations of
the parties hereunder with respect to the Meditrust-Bedford Shares shall
terminate. The provisions of this Section 3.4 (c) shall survive the Closing.
(d) MARLTON GROUND LEASE. At the Sellers' sole cost and expense, the
Sellers shall use their best efforts to obtain all consents required under the
Marlton Ground Lease (the "Marlton Consent") in connection with the consummation
of the transaction contemplated by this Agreement. Furthermore, the Sellers
shall use their best efforts to obtain the Marlton Ground Lessor's Estoppel
Certificate. The parties hereto acknowledge that the Marlton Ground Lessor's
Estoppel Certificate, if executed and delivered in the form attached hereto as
EXHIBIT Y-1 with only such modifications as are reasonably acceptable to the
Purchaser (it being acknowledged and agreed that any disclosure in the Marlton
Ground Lessor's Estoppel Certificate of the existence of any default under the
Marlton Ground Lease shall not constitute a basis for the Purchaser to object to
the Marlton Ground Lessor's Estoppel Certificate unless any such default under
the Marlton Ground Lease is not cured or waived in writing on or prior to the
Closing Date) shall also constitute the Marlton Consent.
(e) WETHERSFIELD GROUND LEASE. The Meditrust Entities shall use their best
efforts to obtain the Wethersfield Ground Lessor's Estoppel Certificate. The
parties hereto
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acknowledge and agree that any disclosure in the Wethersfield Ground Lessor's
Estoppel Certificate of the existence of any default under the Wethersfield
Ground Lease shall not constitute a basis for the Purchaser to object to the
Wethersfield Ground Lessor's Estoppel Certificate unless any such default under
the Wethersfield Ground Lease is not cured or waived in writing on or prior to
the Closing Date.
(f) EXHIBITS. The Meditrust Entities shall prepare and deliver to the
Purchaser on or prior to the Final Schedule Date, the following Exhibits to be
attached to this Agreement: (i) Exhibit Q-2, (ii) Exhibit T, (iii) Exhibit U,
(iv) Exhibit V-1 through and including Exhibit V-6, (v) Exhibit W-1 through and
including Exhibit W-3, (vi) Exhibit Y-2, (vii) Exhibit BB through and including
Exhibit DD, (viii) Exhibit FF-2, (ix) Exhibit LL through and including Exhibit
ZZ-3, (X) Exhibit BBB, (xi) Exhibit CCC and (xii) Exhibit EEE. Within ten (10)
days after the date hereof, the Purchaser shall deliver to the Meditrust
Entities a revised Allocated Value Schedule to replace the original Allocated
Value Schedule attached hereto as of the date hereof, PROVIDED, THAT, the
Allocated Value assigned to any Facility on such revised Allocated Value
Schedule may not be more than one hundred five percent (105%) or less than
ninety-five percent (95%) of the Allocated Value set forth for such Facility on
the original Allocated Value Schedule. In addition, at the Closing, the
Purchaser may request to again revise and replace the Allocated Value Schedule
then in effect and the Meditrust Entities shall consent to such request,
PROVIDED, THAT, (i) no change is made to the Allocated Value assigned to any
Rejected Facility and (ii) there is no material adverse effect on the aggregate
amount of the transfer taxes to be paid by the Meditrust Parties as a
consequence of changes suggested by the Purchaser.
(g) CONNECTICUT CONSENTS. At the Purchaser's sole cost and expense, prior
to the Closing Date, the Purchaser shall obtain Real Property Certificates of
Compliance with respect to each Leased Property located in Connecticut from the
Connecticut Department of Public Health. In the event that such Real Property
Certificates of Compliance cannot be obtained from the Connecticut Department of
Public Health prior to the Closing Date, in lieu thereof, the Purchaser shall
enter into one or more Consent Decrees with the Connecticut Department of Public
Health in order to allow the transfer of the Membership Interest. The Purchaser
acknowledges that the terms and conditions of the issuance of such Real Property
Certificates of Compliance and such Consent Decrees (collectively, the
"Connecticut Consents") may require the Purchaser to obligate itself to perform
various repairs, renovations and make other capital expenditures and the
Purchaser further acknowledges and agrees that the Purchaser may not refuse to
accept and/or enter into such Connecticut Consents due to the nature, extent
and/or cost of the repairs, renovations and capital expenditures or the fact
that such repairs, renovations and other capital expenditures may not be
quantified or limited in the Connecticut Consents.
(h) DUE DILIGENCE MATERIALS. From and after the execution of this
Agreement, throughout the entire Study Period and thereafter until the Closing,
in order to facilitate the
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Purchaser's due diligence review and the consummation of the transaction
contemplated hereunder, the Purchaser shall have access to, upon reasonable
prior notice and during normal business hours, the copies of the following
materials (collectively, the "Due Diligence Materials"): (i) the Lease Documents
and the Bradenton, FL Documents, (ii) the Loan Documents, (iii) the Brookline
Ground Lease and the Ground Leases, (iv) the Organizational Documents, (v) any
other document or instrument specifically identified herein other than the
Intercompany Notes, the Permits and the Permitted Exceptions (including, without
limitation, the HUD Financing Documents, Alabaster, AL Purchase Option, the Cash
Conversion Letters, the Existing Title Policies, the Intercreditor Agreements,
the Meditrust Assignment and Assumption Agreements, the Concord Option
Agreement, the Stamford, CT P&S), (vi) any other document or instrument that the
Sellers are required to deliver to the Purchaser hereunder (other than as set
forth in Section 8.2), (vii) the closing binders relating to the transactions
evidenced by the Loan Documents, Lease Documents and the Bradenton, FL
Documents, (viii) the materials in the possession of MMI and the Subsidiaries or
the possession of their bankruptcy counsel, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
relating to any of the Bankruptcy Proceedings and (ix) all other current file
materials (including, without limitation, any material correspondence from and
after January 1, 2000 between any Meditrust Entity and any Tenant, any Borrower,
any Guarantor and/or Manatee Springs, state surveys relating to the Facilities
and the Bradenton, FL Facility financial statements and/or other financial
information prepared by and relating to any Tenant, any Borrower, any Guarantor
and/or Manatee Springs) relating to the Properties, the Bradenton, FL Leased
Property, the Lease Documents, the Loan Documents and the Bradenton, FL
Documents maintained by the Meditrust Entities (either at the principal place of
business of the Meditrust Entities located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ or at the offices of the Meditrust Entities' counsel, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ & Fish, LLP, One International Place, Boston, Massachusetts or, with
respect to any materials relating to any of the Bankruptcy Proceedings or any
Tenant, any Borrower and/or any Guarantor that is the subject of any of the
Bankruptcy Proceedings, at the office of the Meditrust Entities' bankruptcy
counsel, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇). At its sole cost and expense, the Purchaser may make copies of
all such Due Diligence Materials and the Meditrust Entities shall reasonably
cooperate to facilitate any requests made by the Purchaser. The Purchaser
recognizes, however, that the Meditrust Entities also need access to such Due
Diligence Materials in order to operate their business and to comply with their
obligations hereunder. In addition to the Due Diligence Materials and without
limiting the obligations of the Meditrust Entities under Sections 3.3(b), 3.3(k)
and 3.3(j), the Meditrust Entities shall use reasonable efforts to provide to
the Purchaser (at the Purchaser's sole cost and expense) copies of any other
materials pertaining to the Assets, the Securities, the Properties, the
Borrowers, the Tenants and/or the Guarantors that the Purchaser may reasonably
request, it being acknowledged and agreed that (1) if any of such materials are
being updated or replaced by the Purchaser (such as title insurance
examinations, surveys, etc.), the Purchaser may request such materials from the
Meditrust Entities to the extent necessary to facilitate the Purchaser's review
(however, the Purchaser acknowledges that it does not intend to and it would not
be reasonable to request that the Meditrust Entities produce copies of all such
materials relating to the Properties),
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(2) if any of such materials are generally available to the public (without the
necessity of filing a request under the Freedom of Information Act), the
Purchaser will not request such materials from the Meditrust Entities, PROVIDED,
HOWEVER, that the Purchaser may request copies of any public filings made by any
of the Meditrust Entities, (3) in light of the fact that many of the Loans and
the Leased Properties have been owned by the applicable Meditrust Entities for
several years, it may not be reasonably possible for the Meditrust Entities to
be able to locate copies of such materials to provide the Purchaser and (4)
except for the Express Representations and Warranties, the Meditrust Entities
make no representation or warranty concerning such materials.
(i) DEFAULTS AND BANKRUPTCY PROCEEDINGS. The Purchaser acknowledges and
agrees that, subject to its right to terminate this Agreement pursuant to the
terms of Section 4.2 and Section 11.4 hereof, (i) the allegation or existence of
any payment or other defaults under any of the Lease Documents or Loan Documents
by any Tenant, any Borrower, any Guarantor and/or any other Person other than
MMI or any Subsidiary, (ii) the allegation or existence of any payment or other
defaults by MMI or any Subsidiary under any Lease Document and/or any Loan
Document between MMI or any Subsidiary and any party that is the subject of any
Bankruptcy Proceeding, (iii) the commencement of any Bankruptcy Proceeding or
the issuance of any order in any Bankruptcy Proceeding, (iv) the filing of any
motion by any party in any Bankruptcy Proceeding and/or (v) the rejection of any
Lease or other agreement shall not affect (1) the Purchaser's obligations to
consummate the transaction hereunder, (2) constitute a basis for the Purchaser
to allege that any Tenant Estoppel Certificate or Borrower Estoppel Certificate
is unacceptable because it discloses the existence of any such default,
Bankruptcy Proceeding, order in any Bankruptcy Proceeding and/or rejection
and/or (3) constitute a basis to allege that the applicable Facility affected by
such default, Bankruptcy Proceeding, order in any Bankruptcy Proceeding and/or
rejection should be deemed to be a Rejected Facility.
(j) INSURANCE CERTIFICATES. On or within five (5) Business Days after the
date hereof, the Sellers shall deliver to the Purchaser true and correct copies
of the Insurance Certificates.
(k) BROOKLINE GROUND LEASE. The Meditrust Entities shall use their best
efforts to obtain the Brookline Ground Lessor's Estoppel Certificate. The
parties hereto acknowledge and agree that any disclosure in the Brookline Ground
Lessor's Estoppel Certificate of the existence of any default under the
Brookline Ground Lease shall not constitute a basis for the Purchaser to object
to the Brookline Ground Lessor's Estoppel Certificate unless any such default
under the Brookline Ground Lease is not cured or waived in writing on or prior
to the Closing Date.
(l) ADDITIONAL CONSENTS. If, based upon the Purchaser's review of the Due
Diligence Materials, the Purchaser shall identify any additional authorizations,
consents and/or approvals that are required in order for the Purchaser or the
Meditrust Entities to consummate
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the transaction contemplated hereunder, the Meditrust Entities shall cooperate
with all reasonable requests made by the Purchaser in obtaining the same;
PROVIDED, THAT, the Purchaser shall pay all reasonable out-of-pocket expenses
incurred by the Meditrust Entities in connection any such requests relating to
consents required for the Purchaser to consummate the transaction contemplated
hereunder.
(m) WAIVER OF CONFLICT OF INTEREST. In the event that the Purchaser elects
to engage, as its local counsel in connection with the transaction contemplated
hereunder, any law firm (other than ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish, LLP, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇, LLP) located in any state where
any of the Properties are located that previously represented any of the
Meditrust Entities (or any of their respective predecessors-in-interest that
were owned and controlled, either directly or indirectly, by Meditrust or
Meditrust-BT) in connection with the Assets, any of the Properties and/or any of
the transactions evidenced by any of the Lease Documents and/or any of the Loan
Documents, the Meditrust Entities agree to waive any conflict of interest
relating to such engagement by the Purchaser and agree to waive any objection to
the use by such law firm of any materials originally prepared by such law firm
in connection with its prior engagement by any of the Meditrust Entities or
their predecessors-in-interest, EXCLUDING, HOWEVER, any materials protected by
the attorney-client privilege. The Purchaser agrees to waive any conflict of
interest relating to any concurrent engagement of such local counsel by the
Meditrust Entities in connection with the transaction contemplated hereunder
(including, without limitation, the MMI Loan).
(n) LETTERS OF CREDIT. Notwithstanding anything to the contrary set forth
herein, but subject to Section 10.2 hereof, MMI agrees to cooperate with the
Purchaser to effectuate the transfer of the applicable Letters of Credit
originally issued to MMI to the Purchaser at the Closing, including, without
limitation, attempting to (i) obtain from each applicable Letter of Credit
Issuer, an acknowledgment of its receipt of the applicable Transfer Notice, an
agreement to follow the instructions set forth therein and any other evidence
reasonably requested by the Purchaser to confirm the agreement by the applicable
Letter of Credit Issuer to transfer the applicable Letter of Credit to the
Purchaser (and/or issue a new letter of credit to the Purchaser to replace the
existing Letter of Credit so transferred) and (ii) establish escrow arrangements
acceptable to the Purchaser and each applicable Letter of Credit Issuer for
either such Letters of Credit to be endorsed to the Purchaser and/or the
issuance of replacement letters of credit to the Purchaser as of the
consummation of the Closing. It is acknowledged and agreed, however, that any
refusal by any applicable Letter of Credit Issuer to provide any of the items
set forth in the foregoing clause (i) or to establish the escrow arrangements
described in the foregoing clause (ii) shall not constitute a default by MMI or
any other Meditrust Entity hereunder.
(o) ADDITIONAL NEGATIVE COVENANTS. From and after the date hereof until the
Closing, the Subsidiaries shall not (i) enter into any employment arrangements
of any kind or nature with any employees, (ii) except as otherwise provided in
Section 3.4(p), incur, assume,
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create, guarantee, suffer to exist or become contingently liable for any debt,
obligation or liability, direct or indirect, absolute or contingent, (iii)
liquidate, dissolve, consolidate or merge (or be merged or consolidated) with or
into any other Person, sell all or substantially all of its assets or acquire or
make any investment directly or indirectly in any other corporation or business
concern whether by acquisition of assets, capital stock or otherwise, and
whether in consideration of payment of cash, issue of stock, capital
contributions or otherwise, (iv) except as otherwise provided in Section 3.4(p),
make any loans or advances to any Person (including, without limitation, any
officer, director, trustee, manager or Affiliate), or forgive, cancel,
discharge, settle, reduce or compromise any debts, obligations, liabilities or
claims owed by any Person to it, (v) make or agree to make any change in its
authorized, issued or outstanding Securities and without limiting the generality
of the foregoing, none of the Meditrust Entities shall grant, issue, sell,
authorize (or agree to do so) any Securities or enter into any agreement of any
character obligating any Subsidiary to issue, sell or otherwise dispose of any
Securities, (vi) amend or restate, or permit the amendment or restatement of,
any of the Organizational Documents, (vii) commence any litigation or other
adversarial proceeding before any court, administrative board or arbitrator
relating to any of the Properties or the Lease Documents or (viii) knowingly
destroy, discard or otherwise dispose of any its books or records.
(p) ACTIVITIES OF NEW MEDITRUST-LLC. The parties hereto acknowledge that
New Meditrust-LLC currently owns the Other Assets and that New Meditrust-LLC
intends to and shall convey, assign or otherwise transfer the Other Assets to
other entities owned directly or indirectly by Meditrust, other than the
Subsidiaries, prior to the Closing Date. Consequently, during the term of this
Agreement, New Meditrust-LLC is free to act without restriction with respect to
all of the Other Assets; PROVIDED, HOWEVER, that notwithstanding such freedom to
act, the Express Representations and Warranties contained in Section 7.2(b)(1)
and Section 7.2(c)(1) shall be true and correct as of the Closing Date.
(q) THE MEDITRUST PARTIES' AGREEMENT TO INDEMNIFY. In addition to any other
indemnifications expressly set forth herein, the Meditrust Parties jointly and
severally agree to indemnify, exonerate, defend and save the Purchaser harmless
from, against, for and in respect of the full amounts of any and all damages,
losses, demands, obligations, liabilities, debts, claims, actions, causes of
action and encumbrances of every kind and nature suffered, sustained, incurred
or required to be paid at any time after the Closing by the Purchaser, based
upon, arising out of, resulting from or because of:
(i) any and all liabilities and obligations of the Subsidiaries
incurred in connection with the negotiation, execution and performance of
this Agreement, except to the extent reflected on the Closing Statement;
(ii) any and all liabilities and obligations of the Subsidiaries for
federal, state or local income taxes incurred, arising or accrued for any
period prior to the Closing Date;
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(iii) any and all obligations, liabilities and debts of the
Subsidiaries of any kind or nature whatsoever, whether disclosed or
undisclosed, absolute or contingent, direct or indirect, due or to become
due, now existing or arising hereafter, for debts, liabilities, contractual
obligations (including, without limitation, all obligations under the Other
Leases and the Other Contracts), violations, torts, acts and/or omissions
existing, incurred, accrued and/or occurring prior to the Closing Date;
BUT, EXCLUDING, HOWEVER, (1) except as expressly provided in Section
3.4(q)(v) and Section 3.4(q)(vi), all such obligations, liabilities and
debts arising under or relating to any Lease Documents, where the
applicable Tenant was subject to a Bankruptcy Proceeding as of the Closing
Date, (2) any and all obligations, liabilities, debts and claims of every
kind and nature whatsoever relating to (X) the physical, structural and
environmental condition of the Properties (including, without limitation,
any claim relating to the presence, generation, storage, transportation,
utilization, disposal and/or release of any Hazardous Substance on, under
or from any Property) and/or the fitness, quality, use, condition and/or
design of the Improvements; (y) any title and/or survey matters relating to
the Properties and/or (z) the compliance or non-compliance of the
Properties (and any Subsidiary that is the owner thereof) with
environmental, zoning and other land use Legal Requirements (including,
without limitation, building, fire and health code requirements);
(iv) any and all obligations, liabilities and debts of New
Meditrust-LLC of any kind or nature whatsoever, whether disclosed or
undisclosed, absolute or contingent, direct or indirect, due or to become
due, now existing or hereafter arising, existing, incured, accrued and/or
occurring, for debts, liabilities, contractual obligations, violations,
torts, acts and/or omissions relating to any of the Other Assets;
(v) the release from escrow and the use by the Subsidiaries of the
Cash Collateral, Security Deposits and/or other Escrowed Funds disclosed by
the Cash Conversion Letters;
(vi) the consummation of the transaction contemplated by this
Agreement constituting a default by any of the Subsidiaries under any of
the Leases;
(vii) the Pending Litigation; and
(viii) all reasonable costs and expenses (including, without
limitation, reasonable attorney's fees, interest, and penalties) incurred
by the Purchaser in connection with any action, suit, proceeding, demand,
assessment or judgment incident to any of the matters indemnified against.
Each of the items set forth in this Section 3.4(q) shall be referred to
collectively as the "Purchaser Indemnified Claims". The rights and remedies of
the Purchaser after the Closing for the Purchaser Indemnified Claims shall be
limited to the remedies and procedures provided in Section 3.4(s) hereof. The
provisions of this Section 3.4(q) shall survive the Closing.
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(r) THE PURCHASER'S AGREEMENT TO INDEMNIFY. In addition to any other
indemnifications expressly set forth herein, the Purchaser agrees to indemnify,
exonerate, defend and save the Meditrust Parties harmless from, against, for and
in respect of the full amounts of any and all damages, losses, demands,
obligations, liabilities, debts, claims, actions, causes of action and
encumbrances of every kind and nature suffered, sustained, incurred or required
to be paid at any time after the Closing by any one or more of the Meditrust
Parties, based upon, arising out of, resulting from or because of:
(i) any and all liabilities and obligations of the Subsidiaries for
federal, state or local taxes incurred, arising or accrued for any period
from (and including) the Closing Date and thereafter;
(ii) the failure to promptly remit to the Meditrust Parties (in
accordance with the terms hereof) all refunds payable to any Subsidiary
received by the Purchaser after the consummation of the Closing with
respect to federal, state or local taxes incurred, arising or accrued for
any taxable period through the Closing, to the extent such taxes were
actually paid by any of the Meditrust Parties or any Subsidiary prior to
the Closing;
(iii) any claim, demand or cause of action asserted against any of the
Meditrust Parties with respect to any and all obligations, liabilities,
debts, contractual obligations, violations, torts, acts or omissions of any
Subsidiary incurred, accruing and/or occurring after the Closing
(including, without limitation, all of each lessee's obligations arising
under the Ground Leases from and after the Closing Date); and
(iv) all reasonable costs and expenses (including, without limitation,
reasonable attorneys's fees, interest, and penalties) incurred by any
Meditrust Party in connection with any action, suit, proceeding, demand,
assessment or judgment incident to any of the matters indemnified against.
Each of the items set forth in this Section 3.4(r) shall be referred to
collectively as the "Meditrust Indemnified Claims". The rights and remedies of
the Meditrust Parties after the Closing for the Meditrust Indemnified Claims
shall be limited to the remedies and procedures provided in Section 3.4(s)
thereof. The provisions of this Section 3.4(r) shall survive the Closing.
(s) PROCEDURES FOR INDEMNIFICATION. The obligations and liabilities of the
Meditrust Parties with respect to any Purchaser Indemnified Claims and the
obligations and liabilities of the Purchaser with respect to any Meditrust
Indemnified Claims shall be subject to the following terms and conditions, with
each indemnified party designated as the "Indemnitee" and each party with the
indemnification obligation designated as the "Indemnitor":
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(i) Within a reasonable period of time (but not to exceed thirty (30)
days) after Indemnitee receives written notice (X) identifying (with
sufficient specificity) a state of facts that would constitute a basis for
an Indemnified Claim or (y) of any alleged claim that would constitute an
Indemnified Claim, Indemnitee shall give the Indemnitor written notice of
any such Indemnified Claim, which notice shall state the facts giving rise
to an alleged basis for the Indemnified Claim and an approximation of the
amount of liability under such Indemnified Claim, to the extent known to
Indemnitee (the "Indemnification Notice").
(ii) In the event any action, suit or proceeding is brought against
the Indemnitee with respect to an Indemnified Claim, the action, suit or
proceeding shall, at the Indemnitor's written election made within
forty-five (45) days of the Indemnitor's receipt of written notice of the
commencement of such action, suit or proceeding, be defended by the
Indemnitor (including all proceedings on appeal or for review in connection
therewith) at the Indemnitor's expense and liability. Pending the
Indemnitor's election hereunder, the Indemnitee shall have the right to
employ its own counsel to file a request for an extension of time to file
an answer, or to file an answer if the Indemnitor fails to have its counsel
file an answer within three (3) days prior to the expiration of the period
within which an answer must be filed, as such period may be extended,
without waiving any of Indemnitee's rights hereunder. The Indemnitee shall
have the right to employ its own counsel, for the duration of such action,
suit or proceeding, at the Indemnitee's sole cost and expense, unless the
actions or inactions by counsel retained by Indemnitor appears reasonably
likely to result in a judgment against Indemnitee because of a failure to
defend the action in a reasonably prudent manner (the burden to prove same
by a preponderance of the evidence to rest with Indemnitee), in which event
the Indemnitor shall pay such counsel fees and expenses. The Indemnitee
shall be kept reasonably informed of such action, suit or proceeding at all
stages, whether or not it is so represented.
(iii) If the Indemnitor does not assume the defense of any Indemnified
Claim in accordance with the terms hereof, then the Indemnitee, at the cost
and expense of the Indemnitor, may defend against such Indemnified Claim in
such manner as the Indemnitee may deem reasonably appropriate or may settle
or pay such claim, after giving written notice of the same to the
Indemnitor, on such terms as the Indemnitee may deem reasonably
appropriate. If the Indemnitor does assume the defense of any Indemnified
Claim and, nevertheless, for whatever reason (including, without
limitation, the Indemnitor's failure to pay any judgment, settlement or
attorney's fees with respect thereto), the Indemnitee is required to pay
such Indemnified Claim or any portion thereof, or if the Indemnitee is
permitted under the terms hereof to retain its own counsel with respect to
any Indemnified Claim at the Indemnitor's expense, the Indemnitee may pay
such amounts which Indemnitee may deem reasonably appropriate afer giving
written notice of same to Indemnitor. In the event of any such payments by
the Indemnitee pursuant to this Section 3.4(s), the Indemnitor shall
reimburse the Indemnitee for the amounts actually so paid by the Indemnitee
within ten (10) days after the Indemnitee's written demand therefor.
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(iv) Notwithstanding anything to the contrary set forth hereinabove,
each Indemnitor's obligations under Sections 3.4(q) and Section 3.4(r)
shall be limited as follows in any event:
(1) Neither Indemnitor shall be liable or obligated for
Indemnified Claims for which an Indemnification Notice is not provided
to Indemnitor on or prior to the date which is five (5) Business Days
after the second (2nd) anniversary date of the Closing Date; PROVIDED,
HOWEVER, that such limitation shall not apply to any of the Unlimited
Indemnified Claims, the responsibility of the Indemnitor for which
shall be limited to Unlimited Indemnified Claims for which an
Indemnification Notice is provided to the Indemnitor prior to the
expiration of the applicable statute of limitations.
(2) Neither Indemnitor shall be obligated to indemnify Indemnitee
with respect to any claim for Indemnified Claims, to the extent that
the aggregate of all Indemnified Claims against such Indemnitor
theretofore incurred is less than one hundred thousand dollars
($100,000).
(3) The time limitations described in this Section 3.4(s) shall
not release, waive, reduce, limit or otherwise modify any of
Indemnitee's rights or remedies for the recovery of Indemnified Claims
for which Indemnification Notices were provided to the Indemnitor
prior to the expiration of such time limitations.
(4) To the extent that any matter which otherwise may have
constituted a Purchaser Indemnified Claim is actually reflected on the
Closing Statement, then such matter shall not be the subject of a
Purchaser Indemnified Claim to the extent that Purchaser has already
received a reduction in the Purchase Price with respect to such
matter; the intent of the parties being to permit the Purchaser to
only deduct such claims once.
(v) In the event the Indemnitor fails to pay to the Indemnitee any of
the Indemnitor's obligations to the Indemnitee pursuant to this Section
3.4(s), when such payments are due, the amounts of such payments shall
accrue interest at the rate per annum equal to five percent (5%) above the
Prime Rate from the due date hereunder through and including the date of
such payment by the Indemnitor. The Indemnitor shall be liable to the
Indemnitee for all reasonable attorneys' fees and expenses incurred by the
Indemnitee to enforce its rights and remedies under this Section 3.4.
(vi) The provisions of this Section 3.4(s) shall survive the Closing.
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(t) MMI LOAN. From and after the date hereof through and until 5:00 p.m.
EST on January 3, 2001, the Meditrust Entities and the Purchaser shall use their
best efforts to negotiate and agree upon all of the terms and conditions of the
MMI Loan (including, without limitation, the terms of the subordination to the
Purchaser's senior financing, the maximum amount of such senior financing and
restrictions on other debt, the amount of the equity invested in the Purchaser,
change of control provisions, the restrictions placed upon any withdrawal of the
equity invested in the Purchaser, conditions pertaining to the use of any
proceeds from any sale or refinancing pertaining to any of the Properties and
conditions under which any portion of the MMI Collateral may be released from
the liens securing the MMI Loan). Such terms and conditions shall be set forth
in a term sheet executed by the Meditrust Entities and the Purchaser (the "Term
Sheet"). Without limiting the foregoing, it is acknowledged and agreed that (a)
the interest rate under the MMI Note shall be nine (9%) per annum, (b) the term
of the MMI Note shall be five (5) years, (c) interest shall be payable monthly
in arrears, (d) the MMI Note may be prepayed in whole or in part at any time
without penalty, (e) no principal payments are due under the MMI Note until the
maturity thereof (unless, subject to the terms of any applicable subordination
agreements, the MMI Loan has been accelerated due to any default thereunder),
(f) the MMI Loan shall be secured by second priority liens encumbering the MMI
Collateral, subject and subordinate only to the financing provided to the
Purchaser to consummate the transaction contemplated by this Agreement, (g) the
income earned on the MMI Loan must constitute qualifying income within the
meaning of the REIT provisions of the Internal Revenue Code, (h) due
authorization and enforceability opinions relating to the MMI Loan Documents by
Purchaser's counsel shall be rendered to MMI, (i) title insurance relating to
the MMI Collateral and the liens securing the MMI Loan shall be obtained by the
Purchaser, (j) any other real estate due diligence materials (such as
environmental reports and land surveys) relating to the MMI Collateral obtained
by the Purchaser for itself or its senior lenders shall be delivered and
certified to MMI and (k) the Purchaser's obligations under the MMI Loan shall be
cross-defaulted with the Purchaser's obligations under this Agreement and the
Bradenton P&S. If the Term Sheet is not executed by 5:00 p.m. on January 3,
2001, THEN, unless the Purchaser has notified the Meditrust Entities in writing
by 8:00 p.m. EST on January 3, 2001 that the Purchaser has elected (subject to
its rights to terminate this Agreement in accordance with the terms of Section
4.2, Article 10 or Article 11) to pay the entire Purchase Price (subject to the
adjustments to be made in accordance with the terms hereof) in immediately
available funds (such notice to be referred to herein as the "Loan Termination
Notice"), the Meditrust Entities or the Purchaser may elect to terminate this
Agreement by providing written notice to the other parties hereto prior to 5:00
p.m. EST on January 4, 2001 and thereupon, except for matters specifically
surviving the termination of this Agreement and any breach of representations
and warranties contained herein, the Meditrust Entities and the Purchaser shall
have no further obligations or liabilities to each other hereunder. If the Term
Sheet is executed in accordance with the terms hereof, the Meditrust Entities
and the Purchaser shall negotiate and agree upon the forms of the MMI Loan
Documents (which forms shall be consistent with MMI's customary practices and
shall be commercially reasonable based upon the size, nature and scope of the
transaction contemplated hereunder). If the forms of the MMI Loan Documents are
not agreed to by the
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Meditrust Entities and the Purchaser by the expiration of the Study Period,
THEN, unless the Purchaser has provided the Meditrust Entities with a Loan
Termination Notice by 5:00 p.m. on the next Business Day immediately after the
expiration of the Study Period, the Meditrust Entities or the Purchaser may
elect to terminate this Agreement by providing written notice to the other
parties hereto prior to 5:00 p.m. EST on the second (2nd) Business Day following
the expiration of the Study Period and thereupon, except for matters
specifically surviving the termination of this Agreement and any breach of
representations and warranties contained herein, the Meditrust Entities and the
Purchaser shall have no further obligations or liabilities to each other
hereunder. In the event that the Purchaser has delivered to the Meditrust
Entities a Loan Termination Notice in accordance with the terms hereof, from and
after any such delivery, all other provisions set forth in this Agreement
regarding the MMI Loan shall no longer be applicable and, unless this Agreement
is otherwise terminated in accordance with the terms of Section 4.2, Article 10
or Article 11, the Purchaser shall pay the full amount of the Purchase Agreement
(subject to the adjustments to be made in accordance with the terms hereof) in
immediately available federal funds.
(u) PAYMENTS UNDER LEASE DOCUMENTS. It is acknowledged and agreed that all
payments received by the Subsidiaries under the Lease Documents from and after
the date hereof shall be applied toward the Subsidiaries' obligations under the
Intercompany Notes. The Purchaser further acknowledges and agrees that there is
no requirement hereunder and no expectation that any Subsidiary hold any cash or
cash equivalents as of the Closing Date.
(v) INTERCOMPANY NOTES. Meditrust agrees that prior to the Closing Date,
Meditrust shall cancel all of the Intercompany Notes; it being acknowledged and
agreed that from and after the consummation of the transaction contemplated
hereunder, the Subsidiaries shall have no further debts, obligations or
liabilities, of any kind or nature whatsoever, under the Intercompany Notes. The
provisions of this Section 3.4(v) shall survive the Closing.
(w) NAME CHANGE. Within thirty (30) days after the Closing, the Purchaser
shall deliver to the Sellers evidence that all of the legal names of each
Subsidiary, other than the Fresno Partnership, have been changed (in compliance
with all applicable Legal Requirements both in the state of formation for each
such Subsidiary as well as each state where each such Subsidiary is qualified to
do business) so that the word "Meditrust" is no longer contained in the legal
name of any Subsidiary.
ARTICLE 4
TITLE, SURVEY AND OTHER DUE DILIGENCE MATTERS
SECTION 4.1. ACCESS. During the Study Period, the Purchaser and the
Purchaser's Agents shall be entitled, upon reasonable prior notice (which notice
may be verbal provided the same is given personally I.E., not by message or
phone mail) to MMI and the Subsidiaries, to enter upon the Properties during
normal business hours, with due regard to the rights of the
77
applicable Tenants and Borrowers (and the patients at the Facilities) and
provided that such access shall not unreasonably interfere with the operation of
the Facilities, and shall have the right to make such investigations, including
but not limited to appraisals, engineering studies, soil tests, environmental
studies and underwriting analyses, as the Purchaser deems necessary or
advisable, subject to the following limitations: (a) if such access violates any
law or agreement to which MMI or any Subsidiary is a party, MMI and the
Subsidiaries will so notify the Purchaser with specificity, and the Meditrust
Entities may thereupon refuse such entry to such extent; (b) the Purchaser
acknowledges that MMI's and the Subsidiaries' right of access to the Properties
is governed by the Lease Documents and Loan Documents and that MMI and the
Subsidiaries only have such rights of access as are set forth therein; (c) a
representative of MMI or any Subsidiary (and of any applicable Tenant or
Borrower if requested by such Tenant or Borrower) shall have the right to be
present when the Purchaser and/or Purchaser's Agents conduct its or their
investigations on any Property, PROVIDED, THAT, such representatives of MMI and
the Subsidiaries make themselves available at the time that the Purchaser and/or
the Purchaser's Agents conduct such investigations (it being understood and
agreed that the Purchaser and MMI and the Subsidiaries shall cooperate with each
other to determine a mutually acceptable time for such investigations); and (d)
neither the Purchaser nor the Purchaser's Agents shall damage any Property or
any portion thereof. As used herein, reasonable notice shall constitute such
notice as MMI and the Subsidiaries may require to obtain the cooperation of the
applicable Tenants and Borrowers to allow the Purchaser and/or the Purchaser's
Agents access to the Properties. MMI and the Subsidiaries shall use their best
efforts to obtain such cooperation.
The Purchaser hereby releases and forever discharges the Meditrust Entities
and their respective successors and assigns of and from all debts, demands,
actions, causes of action, suits, proceedings, judgments, damages, claims and
liabilities whatsoever of every kind and nature, which the Purchaser may have by
reason of its entry or the Purchaser's Agents' entry upon any Property prior to
the Closing Date for the purpose of performing such tests and investigations
(the "Work"); PROVIDED, HOWEVER, that nothing contained herein shall relieve the
Meditrust Entities from responsibility for their own negligence or willful
misconduct or from fulfilling their obligations under this Agreement unless the
acts and/or omissions of the Purchaser and/or the Purchaser's Agents prevent the
Meditrust Entities from fulfilling such obligations. The Purchaser shall, upon
completion of the Work authorized hereunder, restore each Property substantially
to its condition immediately prior to the Work. The Purchaser shall and hereby
agrees to indemnify, defend (with counsel chosen by the Purchaser that is
reasonably acceptable to the Meditrust Entities) and hold the Meditrust Entities
harmless from and against claims and expenses in connection with (i) the Work
resulting from the negligence or willful misconduct of the Purchaser and/or the
Purchaser's Agents and (ii) any failure to restore each Property as required
hereunder. The foregoing indemnification obligation shall include all costs
reasonably incurred by the Meditrust Entities to enforce such indemnification
and shall survive the Closing or any termination of this Agreement. Prior to
entering any Property to perform the Work authorized hereunder, the Purchaser
shall provide the Meditrust Entities with a copy of the Purchaser's or the
applicable Purchaser's Agent's certificate of comprehensive public liability
insurance evidencing coverage in such amount as is reasonably satisfactory to
the Meditrust Entities.
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SECTION 4.2. STUDY PERIOD. The Purchaser shall have the Study Period to
physically inspect the Properties, review the economic data relating to the
Assets, conduct appraisals, perform examinations of the physical condition of
the Improvements, examine the Real Properties for the presence of Hazardous
Materials and compliance with laws, investigate development potential of the
Properties, conduct title examinations and lien searches relating to the Assets,
the Securities and the Properties, obtain surveys of the Real Properties, review
the Lease Documents and the Loan Documents, review the Organizational Documents
and other corporate/organizational records relating to the Subsidiaries, review
the financial records of the Subsidiaries, review of the Estoppel Certificates
and to otherwise conduct any such due diligence review of the Assets, the
Subsidiaries and the Properties and all records and other materials related
thereto as the Purchaser, in its absolute discretion, deems appropriate. If,
between the date of this Agreement and the end of the Study Period, the
Purchaser shall, for any reason, or for no reason, in the Purchaser's sole
discretion, determine that it does not wish to purchase the Assets, the
Purchaser shall be entitled to terminate this Agreement by giving written notice
of such termination prior to 5:00 P.M. East Coast time on the third (3rd)
Business Day following the expiration of the Study Period (the "Termination
Notice") and thereupon, except for matters specifically surviving the
termination of this Agreement and any breach of representations and warranties
contained herein, the Meditrust Entities and the Purchaser shall have no further
obligations or liabilities to each other hereunder. If the Purchaser does not
elect to terminate this Agreement in accordance with the provisions of the
foregoing sentence, the Purchaser shall deliver the Deposit to the Escrow Agent
prior to 5:00 P.M. East Coast time on the fourth (4th) Business Day following
the expiration of the Study Period.
The Purchaser shall have until 5:00 P.M. East Coast time on the third (3rd)
Business Day following the expiration of the Study Period to give the Sellers a
written notice (the "Title Objection Notice") that sets forth in reasonable
detail (a) any objections that the Purchaser has to any title or survey matters
affecting any Leased Property that (i) would materially and adversely interfere
with the use of such Leased Property (as it is currently being used), (ii) were
not disclosed in any of the Existing Title Policies or, if disclosed, the
affirmative coverages or endorsements set forth in the Existing Title Policies
are not available from the Title Company, (iii) were not disclosed in any of the
Existing Title Policies and affirmative coverages and/or endorsements reasonably
acceptable to the Purchaser are not available from the Title Company and (iv) do
not constitute a Meditrust Mortgage or a Mechanics' Lien or (b) that any of the
Encumbrances created by any of the Lease Documents and/or any of the Loan
Documents is not perfected (the matters described in the Title Objection Notice
shall be referred to collectively as the "Purchaser Title Objections"). The
Sellers shall use their best efforts to cure the Purchaser Title Objections as
soon as possible prior to the Closing Date, but in no event shall the Sellers be
required to expend in excess of TEN MILLION DOLLARS ($10,000,000) in the
aggregate to cure the Purchaser Title Objections; PROVIDED, HOWEVER, the
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provisions of this paragraph shall not limit the Meditrust Entities' obligations
under Section 3.3 (h). A Purchaser Title Objection described in the foregoing
clause (a) shall be deemed to be cured if such Purchaser Title Objection is (X)
released of record or the applicable Encumbrance is perfected and (y) a bond is
posted by the Meditrust Parties, an indemnity is given to the Title Company by
the Meditrust Parties and/or escrow arrangements satisfactory to the Title
Company are made by the Meditrust Parties (and such actions result in the
issuance of title insurance coverage reasonably acceptable to the Purchaser).
Notwithstanding anything to the contrary set forth herein, at the option of the
Sellers (exercisable at any time prior to the Closing), the Sellers may elect
not to cure the Purchaser Title Objections and in such event (1) each Facility
affected by any Purchaser Title Objection that is not cured shall be deemed to
be a Rejected Facility in accordance with Section 10.2 hereof, (2) the Purchaser
shall have no further obligations or liabilities with respect to such Rejected
Facility (and the Property relating thereto) hereunder, (3) on or prior to the
Closing Date the applicable Subsidiary that owns such Rejected Facility shall
transfer such Rejected Facility to another entity owned or controlled by
Meditrust other than any Subsidiary and (4) the Purchaser shall be entitled to a
credit toward the Purchase Price in accordance with the provisions of Section
10.2 hereof.
In the event that such Termination Notice is not given by the Purchaser
prior to 5:00 P.M. East Coast time on the third (3rd) Business Day following the
expiration of the Study Period, the Purchaser shall have waived its right to
terminate this Agreement or to require that any Facility be treated as a
Rejected Facility as a consequence of (a) the physical or environmental
condition of the Properties as they exist as of the expiration of the Study
Period, (b) other than any Purchaser Title Objections, the state of the title to
any Asset or any Property as it exists on the date that is thirty (30) days
after the execution of this Agreement (the "Title Review Date"), (c) the
Organizational Documents, (d) the form or substance of any Estoppel Certificate
required to be delivered hereunder, (e) the failure to obtain any Estoppel
Certificate required to be delivered hereunder (PROVIDED, HOWEVER, that any such
waiver with respect to the form or substance of or the failure to deliver any
Estoppel Certificate shall not limit any of the Express Representations and
Warranties) and/or (f) any condemnation relating to any Property as of the
expiration of the Study Period (PROVIDED, THAT, to the extent that any such
condemnation occurs subsequent to the Title Review Date, the Purchaser has
received written notice of any such condemnation prior to the expiration of the
Study Period).
Notwithstanding anything to the contrary set forth herein, but subject to
the terms of the immediately preceding paragraph, it is acknowledged and agreed
that no Facility may be treated or designated as a Rejected Facility prior to
the date of the delivery of the Deposit to the Escrow Agent.
SECTION 4.3. CONFIDENTIALITY. The Purchaser shall hold and shall use
commercially reasonable efforts to cause the Purchaser's Agents to hold all
Confidential Information in confidence and shall not at any time disclose or
permit the disclosure of the Confidential Information to any Person without the
prior written consent of the Meditrust Entities. The Purchaser further agrees to
use the Confidential Information only for purposes of evaluating
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the Assets in connection with its purchase thereof in accordance with the terms
of this Agreement. Notwithstanding the foregoing, (a) the Purchaser may disclose
the Confidential Information to its legal counsel, accountants, lenders,
investors, engineers, due diligence consultants and similar third parties that
need to review the Confidential Information in connection with the Purchaser's
purchase of the Assets in accordance with the terms of this Agreement, and (b)
the Purchaser may disclose the Confidential Information to the extent that such
disclosure is required by law or court order, provided that the Purchaser shall
(i) first provide three (3) Business Days written notice thereof to the
Meditrust Entities (or if shorter, the longest period of time that the Purchaser
is permitted by law or court order to delay such disclosure) and (ii) the
Purchaser shall cooperate with the Meditrust Entities should the Meditrust
Entities seek to obtain a restraining order to prevent any such disclosure. If
this Agreement is terminated before the Closing, (X) the Purchaser promptly
shall return and shall cause the Purchaser's Agents to promptly return to the
Meditrust Entities the Confidential Information and (y) neither the Purchaser
nor the Purchaser's Agents shall retain copies or analyses thereof. The
provisions of this Section 4.3 shall survive the Closing or termination of this
Agreement.
All press releases, filings and other publicity concerning the transaction
contemplated hereby will be subject to review and approval by the Meditrust
Entities and the Purchaser, such approval not to be unreasonably withheld,
conditioned or delayed. Such approval shall not be required if the Person
issuing any such publicity reasonably believes it to be necessary for compliance
with law, but such Person shall provide the other parties with reasonable notice
and an opportunity to review the same before release. The Meditrust Entities and
the Purchaser hereby covenant and agree to keep the terms and conditions of this
Agreement confidential except to the extent that disclosure is required by law;
PROVIDED, HOWEVER, it is acknowledged and agreed that the parties hereto may
disclose this Agreement to (1) their respective lenders and investors, (2) the
professional advisors and consultants that are advising them or providing
necessary professional services in connection with the transaction contemplated
hereby and (3) any Governmental Authorities or other Persons as may be necessary
in order to obtain any necessary consent or approval from such parties
pertaining to the transaction contemplated hereunder.
SECTION 4.4. REPORTING. In the event that the Purchaser's due diligence
reveals any condition of any Asset or any Property that in the opinion of
Purchaser's outside legal counsel requires disclosure to any Governmental
Authority, the Purchaser shall promptly notify the Meditrust Entities. In such
event, the Meditrust Entities, and not the Purchaser nor anyone acting on the
Purchaser's behalf, shall make such disclosures as the Meditrust Entities deem
appropriate in accordance with applicable law, except to the extent the
Meditrust Entities fail to do so and the Purchaser is required by law to do so.
Notwithstanding the foregoing, the Purchaser may disclose matters concerning any
Asset or any Property to a Governmental Authority if (a) in the opinion of the
Purchaser's outside legal counsel, the Purchaser is required by law to make such
disclosure (whether or not the Meditrust Entities make such disclosure) and (b)
the Purchaser gives the Meditrust Entities not less than three (3) Business Days
prior written notice of the proposed disclosure (or if shorter, the longest
period of time that the Purchaser is permitted by law or court order to delay
such disclosure).
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ARTICLE 5
"AS IS" TRANSACTION
Except for the express representations and warranties made by any of the
Meditrust Parties contained in this Agreement or any of the Meditrust Documents
(collectively, the "Express Representations and Warranties"), the Meditrust
Entities are not making, and the Purchaser is not relying upon, any
representation or warranty, express or implied, of any nature whatsoever with
respect to the Assets, the Subsidiaries, the Securities and the Properties.
Consequently, the Purchaser waives any and all claims and causes of action, now
or hereafter arising, against the Meditrust Entities in respect of the condition
of the Assets, the Subsidiaries and the Properties, except (a) all Purchaser
Indemnified Claims and (b) all such claims and causes of action that may arise
if any of the Express Representations and Warranties should prove to be untrue
in any material respect. EXCEPT AS MAY BE SET FORTH IN THE EXPRESS
REPRESENTATIONS AND WARRANTIES, THE MEDITRUST ENTITIES MAKE NO WARRANTY OR
REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO ANY ASSET, ANY SUBSIDIARY,
ANY SECURITY AND/OR ANY PROPERTY, EITHER AS TO ITS FITNESS FOR ANY PARTICULAR
PURPOSE OR USE, ITS DESIGN, ITS CONDITION (PHYSICAL, FINANCIAL OR OTHERWISE) OR
OTHERWISE, OR AS TO DEFECTS IN THE QUALITY OF THE MATERIAL OR WORKMANSHIP
THEREIN, LATENT OR PATENT; IT BEING AGREED THAT, EXCEPT AS MAY BE OTHERWISE
EXPRESSLY PROVIDED HEREIN, ALL RISKS RELATING TO THE DESIGN, CONDITION
(PHYSICAL, FINANCIAL OR OTHERWISE) AND/OR USE OF THE ASSETS, THE SUBSIDIARIES,
THE SECURITIES AND THE PROPERTIES ARE TO BE BORNE, AS BETWEEN THE MEDITRUST
PARTIES AND THE PURCHASER, BY THE PURCHASER. AS OF THE CONSUMMATION OF THE
CLOSING, AS BETWEEN THE MEDITRUST PARTIES AND THE PURCHASER, EXCEPT AS MAY BE
OTHERWISE EXPRESSLY PROVIDED HEREIN, THE PURCHASER ASSUMES ALL RISK OF (i) THE
CONDITION (PHYSICAL, FINANCIAL OR OTHERWISE) OF THE ASSETS, THE SUBSIDIARIES AND
THE PROPERTIES, (ii) THE SUITABILITY OF THE PROPERTIES FOR OPERATION, (iii) THE
COMPLIANCE OR NON-COMPLIANCE OF THE ASSETS, THE SUBSIDIARIES, THE SECURITIES AND
THE PROPERTIES WITH ALL APPLICABLE REQUIREMENTS OF LAW, INCLUDING BUT, NOT
LIMITED TO, ENVIRONMENTAL LAWS AND ZONING AND OTHER LAND USE LAWS, AND (iv) ALL
MATTERS THAT TITLE EXAMINATIONS, PHYSICAL INSPECTIONS AND SURVEYS OF THE LAND
PARCELS MAY DISCLOSE.
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ARTICLE 6
CASUALTY DAMAGE OR CONDEMNATION
SECTION 6.1. RISK OF LOSS. After the expiration of the Study Period (a) in
the event all or a portion of the Improvements with respect to any Property
should be damaged or destroyed by fire or other casualty prior to the Closing,
the Meditrust Parties shall have ten (10) Business Days to provide notice to the
Purchaser of their reasonable estimate (based on estimates obtained from an
independent contractor) of the cost to repair the same (the "Meditrust
Estimate"). In the event that (X) with respect to any casualty, the Meditrust
Estimate exceeds ONE MILLION DOLLARS ($1,000,000.00) (the "Individual Casualty
Threshold"), (y) more than one casualty occurs and the sum of any six (6) or
more of the Meditrust Estimates exceeds FIVE MILLION DOLLARS ($5,000,000.00) in
the aggregate (the "Aggregate Casualty Threshold") or (z) with respect to any
casualty (1) any Tenant that is not subject to any Bankruptcy Proceeding shall
have the right to terminate its Lease (other than as a result of the failure of
the landlord thereunder to restore such damage) and such right has not expired
(without exercise) or been waived (in writing) prior to the Closing, (2) the HUD
Mortgagee shall have the right to accelerate the HUD Loan or to apply the
insurance proceeds toward the payment thereof and such right has not expired
(without exercise) or been waived (in writing) prior to the Closing, (3)
affecting any Property which is owned or leased by a Borrower or Tenant that is
the subject of a Bankruptcy Proceeding, if such Borrower or Tenant has not
obtained prior to the Closing any necessary bankruptcy court approvals required
to allow such Borrower or Tenant to use the insurance proceeds in the manner
contemplated by the applicable Loan Documents or Lease Documents or (4) the
Brookline Ground Lessor or the ground lessor under any Ground Lease shall have
the right to terminate the Brookline Ground Lease or its interest under any
Ground Lease, as the case may be, and such right has not expired (without
exercise) or been waived (in writing) prior to the Closing, THEN, with respect
to each casualty described in clauses (x) and (z) above and with respect to any
other applicable casualty after the Aggregate Casualty Threshold has been
reached, the Purchaser may elect to either:
(i) treat each damaged Facility as a Rejected Facility in accordance
with the provisions of Section 10.2 hereof, and (X) the Purchaser shall
have no further obligations or liabilities with respect to such Rejected
Facility (and the Property and the Lease Documents or Loan Documents
relating thereto) hereunder, (y) on or prior to the Closing Date, if the
Rejected Facility is included within the definition of the Leased
Properties, the applicable Subsidiary that owns such Rejected Facility
shall transfer such Rejected Facility (and the Property and the Lease
Documents relating thereto) to another entity owned or controlled by
Meditrust other than any other Subsidiary, unless such Rejected Facility is
the Fresno, CA Facility; in which event, Meditrust-California shall
transfer the Fresno Partnership Interests to another entity owned or
controlled by Meditrust other than any Subsidiary and (z) the Purchaser
shall be entitled to a credit toward the Purchase Price in accordance with
the provisions of Section 10.2 hereof; or
(ii) consummate the transaction contemplated by this Agreement without
treating any such damaged Facility as a Rejected Facility.
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(b) In the event of a fire or other casualty that occurs after the
expiration of the Study Period (i) with respect to which the Purchaser does not
have the right to elect to treat any damaged Facility as a Rejected Facility
pursuant to Section 6.1(a) or (ii) with respect to which the Purchaser elects to
proceed pursuant to Section 6.1(a)(ii), (X) the Purchaser shall purchase the
Assets, to the extent otherwise required by this Agreement, in accordance with
the terms of this Agreement (without reduction of the Purchase Price), (y) if
the damage affected any Mortgaged Property, subject to the terms and provisions
of the applicable Loan Documents, MMI shall assign to the Purchaser at Closing
all insurance proceeds paid or payable on account of such damage and (z) if the
damage affected any Leased Property, the Purchaser shall be entitled to a credit
at Closing for any insurance proceeds paid to any Subsidiary prior to the
Closing that were not applied toward the restoration of the damage. In the event
that after the Closing the applicable Tenant or the applicable Borrower does not
pay the amount of any deductible when due, the Purchaser shall so notify the
Meditrust Parties (and provide the Meditrust Parties with the back-up
documentation establishing the amount due) and the Meditrust Parties shall pay
such amount to the Purchaser within ten (10) Business Days after receipt of such
notification from the Purchaser. Upon such payment by the Meditrust Parties, the
Purchaser shall assign to the Meditrust Parties the Purchaser's claim against
the applicable Tenant or the applicable Borrower relating to the failure to pay
the deductible. The Purchaser shall be deemed to have elected to proceed under
Section 6.1(a)(ii) unless, within ten (10) days from receipt of the Meditrust
Estimate, the Purchaser provides the Meditrust Parties with written notice that
the Purchaser elects to treat any damaged Facility as a Rejected Facility
pursuant to Section 6.1 (a)(i). The provisions of this Section 6.1(b) shall
survive the Closing.
(c) If necessary, the Closing Date shall be postponed to allow for the ten
(10) Business Day period for Meditrust Estimate and the ten (10) day period for
the Purchaser to respond thereto as set forth in this Section 6.1.
SECTION 6.2. CONDEMNATION. After the expiration of the Study Period (a) in
the event that all or any material portion of any Property should be condemned
by right of eminent domain prior to the Closing or as a result of any
condemnation of any Property (1) a Tenant that is not subject to any Bankruptcy
Proceeding shall have the right to terminate its Lease (other than as a result
of the failure of the landlord thereunder to restore the applicable Property
affected by such condemnation to the extent that such restoration is required
under the terms of the Lease), (2) the HUD Mortgagee shall have the right to
accelerate the HUD Loan or apply the condemnation award proceeds to the payment
thereof and such right has not expired (without exercise) or been waived (in
writing) prior to the Closing, (3) a Borrower or Tenant that is the subject of a
Bankruptcy Proceeding is unable to obtain prior to the Closing any necessary
bankruptcy court approvals required to allow such Borrower or Tenant to use the
condemnation award proceeds in the manner contemplated by the applicable Loan
Documents or Lease Documents, or (4) the Brookline Ground Lessor or the ground
lessor under any Ground Lease shall have the right to terminate the Brookline
Ground Lease or its interest under any Ground Lease, as the case may be and such
right has not expired (without exercise) or been waived (in writing), the
Meditrust Entities shall have ten (10) days after receipt of notice thereof to
notify the Purchaser of such condemnation and the Purchaser may elect either to:
84
(i) treat any Facility affected by such condemnation as a Rejected
Facility in accordance with the provisions of Section 10.2 hereof and (X)
the Purchaser shall have no further obligations or liabilities with respect
to such Rejected Facility (and the Property and the Lease Documents or Loan
Documents relating thereto) hereunder, (y) on or prior to the Closing Date,
if such Rejected Facility is included within the definition of the Leased
Properties, the applicable Subsidiary that owns such Rejected Facility
shall transfer such Rejected Facility (and the Property and Lease Documents
relating thereto) to another entity owned or controlled by Meditrust other
than any other Subsidiary, unless such Rejected Facility is the Fresno, CA
Facility; in which event, Meditrust-California shall transfer the Fresno
Partnership Interests to another entity owned or controlled by Meditrust
other than any Subsidiary and (z) the Purchaser shall be entitled to a
credit toward the Purchase Price in accordance with the provisions of
Section 10.2 hereof; or
(ii) consummate the transaction contemplated by this Agreement without
treating any such Facility affected by such condemnation as a Rejected
Facility.
(b) In the event of any condemnation that occurs after the expiration of
the Study Period (i) with respect to which the Purchaser does not have the right
to treat any Facility affected by such condemnation as a Rejected Facility
pursuant to Section 6.2(a)(i) or (ii) with respect to which the Purchaser elects
to proceed under Section 6.2(a)(ii), (X) the Purchaser shall purchase the
Assets, to the extent otherwise required in this Agreement, in accordance with
the terms of this Agreement (without reduction of the Purchase Price), (y) if
the condemnation affected any Mortgaged Property, subject to the terms and
provisions of the applicable Loan Documents, MMI shall assign to the Purchaser
at Closing all condemnation proceeds paid or payable as a result of such
condemnation and (z) if the damage affected any Leased Property, the Purchaser
shall be entitled to a credit at Closing for any condemnation proceeds paid to
any Subsidiary prior to the Closing that were not applied toward the restoration
of the applicable Leased Property. The Purchaser shall be deemed to have elected
to proceed under Section 6.2(a)(ii) unless, within ten (10) days after receipt
of written notice of the condemnation, the Purchaser provides the Meditrust
Parties with written notice that the Purchaser elects to treat any Facility
affected by such condemnation as a Rejected Facility pursuant to Section
6.2(a)(i). The provisions of this Section 6.2(b) shall survive the Closing.
(c) For the purposes this Section 6.2, the taking of a "material portion"
of any Property shall mean any taking which (i) materially and adversely affects
the access to such Property so as to interfere with the operation of the
applicable Facility or (ii) results in a taking of more than ten percent (10%)
of the total land area of any Land Parcel or parking spaces thereon.
85
(d) If necessary, the Closing Date shall be postponed to allow for the
Meditrust Parties' ten (10) day notice and the Purchaser's ten (10) days to
respond thereto as set forth in this Section 6.2.
SECTION 6.3. COOPERATION. In the event that, pursuant to the provisions of
Section 6.1 or Section 6.2 hereof, the Purchaser does not have the right to
treat or does not elect to treat any damaged Facility or any Facility affected
by any condemnation as a Rejected Facility, THEN, subject to the terms and
conditions of the Lease Documents and the Loan Documents, the Meditrust Entities
shall take such actions prior to the Closing as are necessary to preserve their
rights to such insurance or condemnation proceeds and the Sellers shall, after
the Closing, reasonably cooperate to assist the Purchaser in collection of the
same provided that the Purchaser shall pay all reasonable out-of-pocket expenses
incurred by the Sellers in connection with such cooperation. The provisions of
this Section 6.3 shall survive the Closing.
ARTICLE 7
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 7.1. PURCHASER'S REPRESENTATIONS. As a material inducement to the
Meditrust Entities to enter into this Agreement and consummate the transaction
contemplated hereunder, the Purchaser makes the following representations and
warranties to the Meditrust Parties, which representations and warranties are
true as of the date of this Agreement and, as a condition of the Sellers'
obligation to consummate the transaction contemplated hereunder, shall be true
and correct in all material respects as of the Closing Date; PROVIDED, THAT,
such representations and warranties shall be treated as modified as of the
Closing, and without breach of the foregoing obligation of the Purchaser, by the
Purchaser's delivery at such Closing of a certification in substantially the
form attached hereto as EXHIBIT GG attached hereto, reflecting the occurrence of
any event or change in the state of facts effective after the date hereof and
prior to the Closing relating to the representations and warranties made by the
Purchaser (the "Purchaser's Closing Certification"). The following
representations and warranties (as the same may be modified by any Purchaser's
Closing Certification) shall survive the Closing and, except as otherwise
expressly provided herein, any earlier termination of this Agreement.
(a) FORMATION; EXISTENCE; ENFORCEABILITY; OWNERSHIP STRUCTURE. The
Purchaser is a Delaware limited liability company duly formed, validly existing
and in good standing under the laws of Delaware. This Agreement constitutes the
valid and legally binding obligation of the Purchaser, enforceable against the
Purchaser in accordance with its terms. Subject to the provisions of Section
12.3 hereof, one or more of the Controlling Parties shall control the Purchaser.
(b) DUE AUTHORITY. The Purchaser has all requisite power and authority to
execute and deliver this Agreement and to carry out its obligations hereunder
and the transaction
86
contemplated hereby. This Agreement has been, and the Purchaser's Documents
contemplated hereby will be, duly executed and delivered by the Purchaser and
constitute the Purchaser's legal, valid and binding obligations enforceable
against the Purchaser in accordance with their terms, subject only to
bankruptcy, insolvency, reorganization and similar laws or equitable principles
relating to or affecting the enforcement of creditors' rights generally.
Notwithstanding the foregoing, various members of the Purchaser have not
obtained approval of their investment committees as of the date of the execution
of this Agreement and therefore the foregoing representation and warranty shall
be deemed to exclude such approval until the expiration of the Study Period.
(c) PENDING OR THREATENED LITIGATION. There are no actions, suits or
proceedings pending or, to the best of the Purchaser's knowledge, threatened,
against or affecting the Purchaser which, if determined adversely to Purchaser,
would adversely affect its ability to perform its obligations hereunder.
(d) CONFLICT; BREACH. Neither the execution or delivery of this Agreement
by the Purchaser, nor the performance by Purchaser of its obligations hereunder
conflicts or will conflict with or results or will result in a breach of or
constitutes or will constitute a default under (i) the organizational documents
of the Purchaser, (ii) to the best of the Purchaser's knowledge, subject to
obtaining the Connecticut Consents and complying with the HSR Act, any law,
ordinance, rule or regulation of any Governmental Authority or any order, writ,
injunction or decree of any court, arbitrator or Governmental Authority, or
(iii) any agreement or instrument to which the Purchaser is a party or, to its
knowledge, by which it is bound or results in the creation or imposition of any
lien, charge or encumbrance upon its property pursuant to any such agreement or
instrument.
(e) AUTHORIZATION; CONSENT. No authorization, consent, or approval, which
has not been obtained, is required for the execution and delivery by the
Purchaser of this Agreement or the performance of its obligations hereunder
other than (i) any authorization, consent or approval that the Purchaser can
only identify by reviewing the Due Diligence Materials, including, without
limitation the Marlton Consent and the HUD Consents, (ii) the Connecticut
Consents and (iii) compliance with the HSR Act.
(f) TAXPAYER ID NUMBER. The Purchaser has applied for a taxpayer
identification number and promptly on the issuance thereof shall provide its
taxpayer identification number to the Sellers and the Escrow Agent.
SECTION 7.2. MEDITRUST PARTIES' REPRESENTATIONS. As a material inducement
to the Purchaser to enter into this Agreement and consummate the transaction
contemplated hereunder, the Meditrust Parties make the following representations
and warranties to the Purchasers, which representations and warranties are true
as of the date of this Agreement and, as a condition of the Purchaser's
obligation to consummate the transaction contemplated hereunder, shall be true
and correct in all material respects as of the Closing Date; PROVIDED,
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THAT, the Modifiable Representations and Warranties shall be treated as modified
as of the Closing, and without breach of the foregoing obligation of the
Meditrust Parties, by delivery by the Meditrust Parties at such Closing of a
certification in substantially the form attached hereto as EXHIBIT HH attached
hereto and incorporated herein by reference, reflecting the occurrence of any
event or change in the state of facts first arising after the date hereof and
prior to the Closing relating to the Modifiable Representations and Warranties
made by the Meditrust Parties (the "Meditrust Parties' Closing Certification").
Notwithstanding the foregoing, with respect to actions taken by any Meditrust
Entity after the date hereof, the Modifiable Representations and Warranties
identified on EXHIBIT AAA-2 may only be modified as to actions taken with the
approval of the Purchaser as may be required under the terms of this Agreement.
The following representations and warranties (as the same may be modified in
accordance with the terms hereof by any Meditrust Parties' Closing
Certification) shall survive the Closing and, except as otherwise expressly
provided herein, any earlier termination of this Agreement. It is acknowledged
and agreed that any matter disclosed on any exhibit attached hereto shall be
deemed to be an exception (as applicable) to every representation made herein by
the Meditrust Parties; PROVIDED, HOWEVER, that the foregoing shall not apply to
the representations made by the Meditrust Parties in Section 7.2(d).
(a) ORGANIZATIONAL MATTERS.
(1) FORMATION; EXISTENCE; QUALIFICATION TO DO BUSINESS. Meditrust,
MHC, Meditrust-Bedford, Meditrust-California and MMI are each corporations
duly formed, validly existing and in good standing under the laws of
Delaware. The Fresno Partnership is a limited partnership duly formed,
validly existing and in good standing under the laws of Delaware. New
Meditrust-LLC is a limited liability company duly formed, validly existing
and in good standing under the laws of Delaware. Meditrust-MA is a business
trust duly formed, validly existing and in good standing under the laws of
Massachusetts. Each Subsidiary has all requisite power and authority to
own, operate and lease its respective assets and to carry on its respective
businesses as now being conducted. The Subsidiaries are qualified to
business in the jurisdictions identified on EXHIBIT II, which includes each
jurisdiction where such qualification is necessary in order for each
Subsidiary to carry out its business as presently conducted and where a
failure to so qualify would have a material adverse effect on any
Subsidiary.
(2) DUE AUTHORITY; ENFORCEABILITY. The Meditrust Entities have all
requisite power and authority to execute and deliver this Agreement and to
carry out their obligations hereunder and the transaction contemplated
hereby. Without limiting the foregoing, the Meditrust Entities have
obtained the Meditrust Board Approval. This Agreement has been, and each of
the Meditrust Documents to be executed and delivered by any of the
Meditrust Parties hereunder hereby will be, duly executed and delivered by
such Meditrust Parties and shall constitute such Meditrust Parties' legal,
valid and binding obligations enforceable against the Meditrust Parties in
accordance with their terms, subject only to bankruptcy, insolvency,
reorganization and similar laws or equitable principles relating to or
affecting the enforcement
88
of creditors' rights generally. This Agreement has been duly executed and
delivered by the Subsidiaries and constitutes the Subsidiaries' legal,
valid and binding obligation enforceable against the Subsidiaries in
accordance with its terms, subject only to bankruptcy, insolvency,
reorganization and similar laws of equitable principles relating to or
affecting the enforcement of creditors' rights generally.
(3) PENDING OR THREATENED ACTIONS. Except as set forth on EXHIBIT RR-1
attached hereto, there are no actions, suits or proceedings pending or, to
the best knowledge of the Meditrust Parties, threatened, against or
affecting any of the Subsidiaries. In addition, there are no actions, suits
or proceedings pending or, to the best knowledge of the Meditrust Parties,
threatened, against or affecting any of the Meditrust Parties, which if
determined adversely to the Meditrust Parties would adversely affect its
ability to perform its obligations hereunder.
(4) CONFLICTS; BREACH. Except as set forth on EXHIBIT BBB attached
hereto, neither the execution or delivery of this Agreement by any
Meditrust Entity nor the performance by the Meditrust Entities of their
obligations hereunder conflicts or will conflict with or results or will
result in a breach of or constitutes or will constitute a default under (i)
any of the Organizational Documents or any of the Lease Documents, (ii) to
the best of the Meditrust Parties' knowledge, subject to obtaining the
Connecticut Consents and complying with the HSR Act, any law, ordinance,
rule or regulation or any order, writ, injunction or decree of any court,
arbitrator or Governmental Authority, or (iii) subject to obtaining the
Marlton Consent and the HUD Consents, any agreement or instrument to which
the any of the Meditrust Entities is a party or, to the best of the
Meditrust Parties' knowledge, by which any Meditrust Entity is bound or
results in the creation or imposition of any lien, charge or encumbrance
upon any property of any Meditrust Entity pursuant to any such agreement or
instrument.
(5) AUTHORIZATION; CONSENT. Except as set forth on EXHIBIT CCC
attached hereto, no authorization, consent, or approval, which has not been
obtained, is required for the execution and delivery by the Meditrust
Entities of this Agreement or the performance of their obligations
hereunder other than (i) the Marlton Consent, (ii) the Connecticut
Consents, (iii) the HUD Consents and (iv) compliance with the HSR Act.
(6) FOREIGN PERSON AND TAXPAYER ID NUMBER. No Meditrust Entity is a
"foreign person" as defined in Section 1445 of the Code; and the taxpayer
identification number of each Meditrust Entity is accurately set forth as
follows:
MEDITRUST ENTITY TAXPAYER ID#
Meditrust ▇▇-▇▇▇▇▇▇▇
MHC ▇▇-▇▇▇▇▇▇▇
89
Meditrust-MA ▇▇-▇▇▇▇▇▇▇
Meditrust-Bedford ▇▇-▇▇▇▇▇▇▇
Fresno Partnership N/A
MMI ▇▇-▇▇▇▇▇▇▇
New Meditrust-LLC ▇▇-▇▇▇▇▇▇▇
(7) BANKRUPTCY, ETC. No bankruptcy, insolvency, rearrangement or
similar action in which any Meditrust Entity is the subject, whether
voluntary or involuntary, is pending or threatened. The consummation of the
transaction contemplated by this Agreement will not render any of the
Meditrust Parties insolvent and, following such consummation, each
Meditrust Party will continue to be able to pay its debts as they become
due and will have sufficient funds and capital to carry on its business.
(8) SECURITIES. Attached hereto as EXHIBIT II, is a true and correct
list of all of the holders of any Securities and their respective ownership
interests in any Subsidiary. All of the outstanding shares of stock issued
by any of the Corporations are fully paid and non-assessable. All such
outstanding shares were validly issued in compliance with all applicable
securities laws. Except as set forth on EXHIBIT II, there are no Securities
of any kind issued or outstanding. Except as set forth in the ▇▇▇▇▇▇
Guaranty Documents (all of which such agreements shall be released,
terminated and/or discharged at or prior to the Closing pursuant to Section
3.4(y)), there are no agreements of any kind or nature (written or verbal)
in effect as of the date hereof pertaining to the voting, issuance, sale,
authorization, or other disposition of, or the redemption, purchase or
other acquisition of any Securities.
(9) TRUSTEE OF THE CONCORD CONDOMINIUM TRUST. New Meditrust-LLC is the
only Trustee of the Concord Condominium Trust.
(10) OFFICERS, DIRECTORS, TRUSTEES AND MANAGERS. The officers,
directors, trustees and managers, as applicable, of Meditrust-MA, the
Corporations and New Meditrust-LLC are set forth on EXHIBIT II.
(11) CORPORATE/ORGANIZATIONAL RECORDS. The "corporate/organizational"
record books of each Subsidiary are in good order, complete, accurate,
up-to-date, with all necessary signatures, and set forth all meetings and
actions taken by the shareholders, members, directors and trustees, as
applicable; all to the extent necessary to comply with applicable Legal
Requirements, to authorize all actions taken by such Subsidiaries prior to
the date hereof and to preserve their legal existence and good standing.
The Due Diligence Materials contain accurate and complete copies of such
corporate/organizational record books,
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together with accurate and complete copies of the Organizational Documents.
The stock transfer books and stock ledgers of the Corporations are in good
order, complete, accurate and up-to-date and set forth all Securities
issued, transferred and surrendered; all to the extent reasonably necessary
to correctly reflect the current ownership of the Securities of the
Corporations, as represented herein and to comply with applicable Legal
Requirements. During the Study Period, the Meditrust Entities shall make
such stock transfer books and stock ledgers available to the Purchaser for
review.
(12) BANK ACCOUNTS; CASH; CASH EQUIVALENTS. As of the Closing Date,
the Subsidiaries (a) will not have any bank accounts or safety deposit
boxes other than the Fresno Bank Account and (b) will not hold any cash or
cash equivalents.
(b) CONTRACTUAL OBLIGATIONS; OTHER LIABILITIES.
(1) LEASES AND OTHER EXECUTORY CONTRACTS WITH THIRD PARTIES. As of the
date hereof, other than as set forth in (i) the ▇▇▇▇▇▇ Guaranty Documents
(which will be released prior to or as of the Closing Date in accordance
with the terms of Section 3.4(h)), (ii) the Intercompany Notes (which will
be canceled prior to or as of the Closing Date in accordance with the terms
of Section 3.4(v)), (iii) the Bank of Tokyo Loan Documents (which will be
released prior to or as of the Closing Date in accordance with the terms of
Section 3.4(h)), (iv) the Other Lease Documents (which shall be assigned to
an entity owned or controlled in accordance with the terms of Section 3.4
(p)), (v) the Meditrust Assignment and Assumption Agreements, (vi) the
Lease Documents and the Ground Leases, (vii) the Organizational Documents,
(viii) the HUD Financing Documents, (ix) the Intercreditor Agreements, (x)
the Nondisturbance Agreements, (xi) the Concord Management Agreement, (xii)
the Concord Option Agreement, (xiii) the Stamford, CT P&S, (xiv) the
Alabaster, AL Purchase Option, (xv) the Permitted Exceptions, (xvi) the
Permits, (xvii) the Contracts and (xviii) the Marlton Access Agreement,
none of the Subsidiaries is a party to or bound by any agreement, whether
written or oral, of any kind or nature with any Person. As of the Closing
Date, none of the Subsidiaries will be parties to or bound by any
agreement, whether written or oral, of any kind or nature with any Person,
other than (1) the Meditrust Assignment and Assumption Agreements, (2) the
Lease Documents and the Ground Leases, (3) the Organizational Documents,
(4) the HUD Financing Documents, (3) the Intercreditor Agreements, (4) the
Nondisturbance Agreements, (5) the Concord Management Agreement, (6) the
Concord Option Agreement, (7) the Stamford, CT P&S, (8) the Alabaster, AL
Purchase Option, (9) the Permitted Exceptions, (10) the Permits, (11) the
Contracts and (12) the Marlton Access Agreement.
(2) TAX MATTERS. Except as disclosed on EXHIBIT EEE attached hereto,
(i) all federal, state and local tax returns and tax reports with respect
to the Subsidiaries required to be filed by any Subsidiary have been filed
with the appropriate Governmental Authorities in all jurisdictions in which
such returns and reports are required to be filed; (ii) all federal, state
and local income, profits, franchise, sales, use, occupation, property,
excise and
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other taxes (including interest and penalties) due from any Subsidiary have
been fully paid and (iii) to the best of the Meditrust Parties' knowledge,
no issues have been raised (or are currently pending) by the Internal
Revenue Service, any state taxing authority, or any other taxing authority
in connection with any of the returns or reports referred to in preceding
sentence, and no waivers of statutes of limitation have been given or
requested with respect to any Subsidiary.
(3) EMPLOYMENT CONTRACTS AND PLANS. Without limiting the
representations set forth in Section 7.2(b)(1), none of the Subsidiaries
currently has, has ever had or as of the Closing Date shall have any
employees and none of the Subsidiaries, is now, was ever or as of the
Closing Date shall be a party to:
(i) Any union, collective bargaining or similar agreement;
(ii) Any profit-sharing, deferred compensation, bonus, stock
option, stock purchase, pension, post-retirement health or life
benefit plan or practice, retainer, consulting, retirement, welfare or
incentive plan or agreement, hospitalization or other medical, dental,
life or other insurance plan or other employee benefit plan;
(iii) Any plan providing for "fringe benefits" to its employees,
including but not limited to vacation, sick leave, medical,
hospitalization, life insurance and other insurance plans or related
benefits; or
(iv) Any employment agreement.
(c) MATTERS RELATING TO THE ASSETS AND THE REAL PROPERTIES.
(1) OWNERSHIP. The Subsidiaries are the sole owners and have good and
marketable title [fee simple title in the case of the Land Parcels (other
than the Marlton, NJ Land and the Wethersfield, CT Land) that are included
within the definition of the Leased Properties] to all of the Leased
Properties. The Leased Properties that are owned by New Meditrust-LLC are
identified on EXHIBIT JJ attached hereto. As of the Closing Date, the only
assets that will be owned by New Meditrust-LLC will be (a) the Leased
Properties identified on EXHIBIT JJ, (b) the Meditrust-Bedford Shares, (c)
the Meditrust-California Shares and (d) the Meditrust-MA Shares. The
Bedford, NH Leased Property is the only Leased Property and the only asset
that is owned by Meditrust-Bedford. The Leased Properties that are owned by
Meditrust-MA are listed on EXHIBIT KK attached hereto and are the only
assets owned by Meditrust-MA. The Kentfield, CA Leased Property is the only
Leased Property owned by Meditrust-California. The Kentfield, CA Leased
Property and the Fresno Partnership Interests are the only assets owned by
Meditrust-California. MHC owns all right, title and interest in the
Membership Interest, free and clear of all Encumbrances other than the
Permitted Exceptions and the ▇▇▇▇▇▇ Guaranty Liens. At the Closing, (i) the
Subsidiaries
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shall hold good and marketable fee title to the Land Parcels that
constitute the Leased Properties (other than the Marlton, NJ Land and the
Wethersfield, CT Land) free and clear of any Encumbrances other than the
Permitted Exceptions, (ii) New Meditrust-LLC shall hold good and marketable
leasehold interest in the Marlton, NJ Land pursuant to the Marlton Ground
Lease, free and clear of any Encumbrance other than the Permitted
Exceptions, (iii) New Meditrust-LLC shall hold good and marketable
leasehold interest in the Wethersfield Ground Lease, free and clear of any
Encumbrance other than the Permitted Exceptions, (iv) the Subsidiaries
shall hold their respective interest in any Permits, Contracts, Personal
Property and Intangible Property, free and clear of any Encumbrance other
than the Permitted Exceptions, (v) the Subsidiaries shall hold the lessor's
interest in all of the Lease Documents, free and clear of any Encumbrance
other than Permitted Exceptions, (vi) MHC shall hold and transfer to the
Purchaser the Membership Interest, free and clear of all Encumbrances other
than the Permitted Exceptions, (vii) New Meditrust-LLC shall own the
Meditrust-Bedford Shares, the Meditrust-California Shares and the
Meditrust-MA Shares free and clear of all Encumbrances other than the
Permitted Exceptions and (viii) MMI shall hold and transfer to the
Purchaser the lender's interest in the Loan Documents, free and clear of
all Encumbrances other than the Permitted Exceptions. After the Closing,
the Meditrust Parties will not own or have any interest in any properties,
assets or rights which are necessary to carry on the business of the
Facilities located on the Properties, as presently conducted.
(2) NOTICE OF DEFECTS, ETC.. From and after January 1, 2000, other
than (a) the Inspection Surveys which are identified on EXHIBIT LL attached
hereto and (b) any other matters disclosed on EXHIBIT LL, the Meditrust
Entities have not received any notice from (i) any insurance company
alleging any default, violation, delinquency or deficiency in payment or
termination under any insurance policy relating to any of the Properties or
pertaining to any litigation relating to any Property or any Subsidiary,
(ii) any Governmental Authority alleging any violation of or under any
Legal Requirement or Permit relating to any Tenant, any Borrower, any
Guarantor, any Subsidiary and/or any Asset, (iii) any Third Party Payor
alleging any Facility has failed to comply in any material respect with the
applicable requirements relating to such Facility under the applicable
Third Party Payor Program and/or any Facility has been declared ineligible
to participate in such Third Party Payor Program or (iv) any Person
regarding a default under any of the Permitted Exceptions that remains
outstanding as of the date hereof.
(3) CONTRACTS. Meditrust and MHC have not committed themselves in any
manner whatsoever to any Contract. Except as disclosed on EXHIBIT MM
attached hereto, MMI and the Subsidiaries have not committed themselves in
any manner whatsoever to any Contract.
(4) PERMITS. Except as disclosed on EXHIBIT NN attached hereto, other
than such Permits as have been issued to any of the Subsidiaries (a) in
connection with the construction of any Improvements included within the
definition of the Leased Properties or (b) in the ordinary course of and as
a consequence of the ownership of any of the Leased Properties, to the best
of the Meditrust Parties' knowledge, the Meditrust Entities do not hold are
not subject to any Permits.
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(5) UNRECORDED OR EQUITABLE INTERESTS. Except (a) for the security
interests in the Securities created by the ▇▇▇▇▇▇ Guaranty Documents, (b)
as disclosed on EXHIBIT OO attached hereto or (c) as otherwise expressly
disclosed in this Agreement in Section 7.2(c)(8) and Section 7.2(c)(9),
there are no unrecorded or undisclosed legal or equitable ownership
interests in any of the Assets, any of the Subsidiaries or any of the
Properties or rights to enter any lease in any of the Properties owned or
claimed by any party.
(6) CASUALTY. To the best of the Meditrust Parties' knowledge, no
casualty has occurred since January 1, 1999 with respect to any of the
Properties causing any damage to such Property in excess of ten (10%)
percent of the value of such Property which has not been repaired and for
which any insurance claims have not been fully resolved.
(7) CONDEMNATION. To the best of the Meditrust Parties' knowledge,
there are no condemnation proceedings pending, proposed or threatened
against any of the Properties.
(8) LEASES AND OTHER OCCUPANCY AGREEMENTS. The Marlton Ground Lease,
the Wethersfield Ground Lease, the Leases and the Nondisturbance Agreements
are the only leases or other agreements to which any Subsidiary is a party
granting occupancy rights affecting any of the Real Properties. None of the
Meditrust Parties is a party to any lease or other agreement granting
occupancy rights affecting any of the Real Properties. The Nondisturbance
Agreements that exist are identified on EXHIBIT PP.
(9) RIGHTS OF FIRST REFUSAL, OPTIONS TO PURCHASE AND OTHER CONTRACTS
OF SALE. Except (a) as set forth in the pledges of the Securities under the
▇▇▇▇▇▇ Guaranty Documents and (b) as disclosed on EXHIBIT QQ attached
hereto, the Meditrust Entities are not party to any agreement of any kind
or nature whatsoever to sell, lease, grant, assign, convey or otherwise
transfer all or any portion of the Assets, all or any interest in any
Subsidiary or all or any portion of any of the Properties to any party
other than (i) the Purchaser pursuant to this Agreement, (ii) the
applicable Tenants pursuant to the Rights of First Refusal and (iii) the
applicable Tenants pursuant to the Purchase Options. Except as disclosed in
the immediately preceding sentence, the respective interests of the
Meditrust Entities in the Assets, the Subsidiaries and the Properties are
not subject to any rights of first refusal or options to purchase.
(10) PENDING OR THREATENED ACTIONS. To the best of the Meditrust
Parties' knowledge, except as disclosed on ▇▇▇▇▇▇▇ ▇▇-▇ attached hereto,
there are no actions, suits or proceedings pending or threatened
(including, without limitation any bankruptcy, insolvency, rearrangement or
similar proceedings) against or affecting any of the Tenants, the Borrowers
or the Guarantors that is material and is not covered by any insurance
policy other than the Bankruptcy Proceedings (including, without
limitation, all motions, actions, suits, proceedings and matters pending or
threatened in the Bankruptcy Proceedings).
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(11) MARLTON GROUND LEASE. To the best of the Meditrust Parties'
knowledge, the Marlton Ground Lease is in full force and effect, is valid
and enforceable in accordance with its terms and has not been terminated.
Other than any Permitted Exceptions relating to the Marlton, NJ Leased
Property, the Marlton Ground Lease and the Marlton Access Agreement
constitute the only agreements of any kind or nature between the Marlton
Ground Lessor and any Meditrust Entity or by which the lessee under the
Marlton Ground Lease may be bound. New Meditrust-LLC is the current holder
of all right, title and interest of the lessee under the Marlton Ground
Lease and is only Meditrust Entity bound by the Marlton Ground Lease and
the Marlton Access Agreement. A true and correct copy of the Marlton Ground
Lease and the Marlton Access Agreement is included in the Due Diligence
Materials. To the best of the Meditrust Parties' knowledge, except as
disclosed on EXHIBIT Y-2 attached hereto, there is no default by the
Marlton Ground Lessor now existing under the Marlton Ground Lease or the
Marlton Access Agreement, nor have any notices of default been sent to the
Marlton Ground Lessor by New Meditrust-LLC nor received from the Marlton
Ground Lessor by New Meditrust-LLC relating to any default under the
Marlton Ground Lease or the Marlton Access Agreement which, as of the date
hereof, remains uncured or has not been waived in writing. Other than rent
due for the month in which this Agreement has been executed, no rent has
been paid in advance under the Marlton Ground Lease, and New Meditrust-LLC
has no claim against the Marlton Ground Lessor for any deposits or prepaid
expenses of any type. New Meditrust-LLC has not been given any free rent,
partial rent, rebates, rent abatements or rent concessions of any kind by
the Marlton Ground Lessor. The Marlton Ground Lessor is not holding a
security deposit or any other escrow fund under the Marlton Ground Lease.
To the best of the Meditrust Parties' knowledge, the Marlton Ground Lessor
has not (i) sought or consented to the appointment of a receiver or trustee
for itself or for the Marlton, NJ Land, (ii) filed a petition seeking
relief under the bankruptcy or other similar laws of the United States or
the state of New Jersey or (iii) made a general assignment for the benefit
of creditors.
(12) WETHERSFIELD GROUND LEASE. To the best of the Meditrust Parties'
knowledge, the Wethersfield Ground Lease is in full force and effect, is
valid and enforceable in accordance with its terms and has not been
terminated. Other than any Permitted Exceptions relating to the
Wethersfield, CT Leased Property, the Wethersfield Ground Lease constitutes
the only agreement of any kind or nature between the Wethersfield Ground
Lessor and any Meditrust Entity or by which the lessee under the
Wethersfield Ground Lease may be bound. Meditrust previously held the
tenant's interest under the Wethersfield Ground Lease and was not ever
released from its liability thereunder. Meditrust assigned the tenant's
interest under the Wethersfield Ground Lease to New Meditrust-LLC. New
Meditrust-LLC currently holds the tenant's interest under the Wethersfield
Ground Lease. A true and correct copy of the Wethersfield Ground Lease is
included in the Due Diligence Materials. To the best of the Meditrust
Parties' knowledge, except as disclosed on EXHIBIT FF-2 attached hereto,
there is
95
no default by the Wethersfield Ground Lessor now existing under the
Wethersfield Ground Lease, nor have any notices of default been sent to the
Wethersfield Ground Lessor by Meditrust or New Meditrust-LLC nor received
from the Wethersfield Ground Lessor by Meditrust or New Meditrust-LLC
relating to any default under the Wethersfield Ground Lease which, as of
the date hereof, remains uncured or has not been waived in writing. Other
than rent due for the month in which this Agreement has been executed, no
rent has been paid in advance under the Wethersfield Ground Lease, and
neither Meditrust nor New Meditrust-LLC has any claim against the
Wethersfield Ground Lessor for any deposits or prepaid expenses of any
type. New Meditrust-LLC has not been given any free rent, partial rent,
rebates, rent abatements or rent concessions of any kind by the
Wethersfield Ground Lessor. The Wethersfield Ground Lessor is not holding a
security deposit or any other escrow fund under the Wethersfield Ground
Lease. To best of the Meditrust Parties' knowledge, the Wethersfield Ground
Lessor has not (i) sought or consented to the appointment of a receiver or
trustee for itself or for the Wethersfield, CT Land, (ii) filed a petition
seeking relief under the bankruptcy or other similar laws of the United
States or the State of Connecticut or (iii) made a general assignment for
the benefit of creditors. The consent of the Wethersfield Ground Lessor is
not required under the Wethersfield Ground Lease for the assignment to the
Purchaser of Membership Interest.
(13) HUD FINANCING DOCUMENTS. To the best of the Meditrust Parties'
knowledge, except as disclosed on EXHIBIT SS attached hereto, there is no
default by the HUD Mortgagee now existing under the HUD Financing
Documents, nor have any notices of default been sent to the HUD Mortgagee
by Meditrust-Bedford nor received from the HUD Mortgagee by
Meditrust-Bedford relating to any default under the HUD Financing Documents
which, as of the date hereof, remains uncured or has not been waived in
writing.
(14) FINANCIAL STATEMENTS. Attached hereto as EXHIBIT TT, is a true
and correct list of the most recent financial statements that any Meditrust
Entity has received relating to (a) any Tenant, (b) any Borrower, (c) any
Guarantor and/or (d) any Real Property (collectively, the "Existing
Financial Statements"). True and complete copies of such Existing Financial
Statements received by any Meditrust Entity have been delivered to the
Purchaser. Notwithstanding the foregoing, the Meditrust Parties make no
representation or warranty with respect to the accuracy or completeness of
the information set forth in the Existing Financial Statements, but rather
only represent that they have provided to the Purchaser accurate copies of
the materials constituting Existing Financial Statements that were received
by the Meditrust Entities.
(15) PATIENT FUNDS AND PERSONAL PROPERTY. Neither MMI nor any of the
Subsidiaries has acted as a bailee, safekeeper, or otherwise maintained any
records with respect to any funds and personal property belonging to any
patient of any Facility. MMI does not own any Personal Property.
96
(d) LEASE DOCUMENT, LOAN DOCUMENT AND INTERCREDITOR AGREEMENT MATTERS.
(1) LEASE DOCUMENTS. The Lease Documents listed on the Lease Documents
Schedule (i) contain all material obligations of (x) the Tenants or any
other parties to the Subsidiaries with respect to the transactions
contemplated by the Leases and (y) the Subsidiaries to the Tenants or any
other parties with respect to the transactions contemplated by the Leases
and (ii) create all of the Encumbrances held by the Subsidiaries to secure
the obligations of the Tenants under the Leases; PROVIDED, HOWEVER, that
the Lease Documents Schedule does not include a list of all of the
Financing Statements included within the definition of Lease Documents. To
the best of the Meditrust Parties' knowledge, except as set forth on
EXHIBIT YY-3 attached hereto, the Subsidiaries have not entered into any
express written agreement waiving, in any material respect, any material
obligation of any Tenant or any Guarantor under any of the Lease Documents
that would pertain to any period from and after the date hereof. To the
best of the Meditrust Parties' knowledge, none of the Subsidiaries is in
default under any of the Lease Documents in any material respect. The Lease
Documents listed on the Lease Documents Schedule have not been modified or
amended, by written or express verbal agreement, except as expressly set
forth on the Lease Documents Schedule. True and correct copies of the Lease
Documents will be made available to the Purchaser for its review during the
entire Study Period and thereafter until the Closing Date. No Rent
(including, without limitation, Additional Rent) under any of the Leases
has been paid in advance other than as set forth on EXHIBIT YY-2 attached
hereto. Except as disclosed in the Lease Documents identified in the Lease
Document Schedule or as set forth on EXHIBIT YY-3, none of the Tenants have
been given any free rent, partial rent, rebates, rent abatements or rent
concessions of any kind (including, without limitation, any waiver of any
such Tenant's agreement to fulfill its payment obligations under its Lease)
that would pertain to any period from and after the Closing Date. The rent
due and payable per annum currently payable under the Leases and the
formula for computing Additional Rent thereunder is set forth on EXHIBIT
YY-1 attached hereto. The Subsidiaries are the only Meditrust Entities that
are parties to, are bound by or hold any interest in any of the Lease
Documents.
(2) LEASE DOCUMENTS DEFAULTS. EXHIBIT UU attached hereto lists all
monetary defaults existing under any of the Lease Documents as of the date
of the execution of this Agreement.
(3) LOAN DOCUMENTS. The Loan Documents listed on the Loan Documents
Schedule (i) contain all material obligations of (x) the Borrowers or any
other parties to MMI with respect to the Loans and (y) MMI to the Borrowers
or any other parties with respect to the Loans and (ii) create all of the
Encumbrances held by MMI to secure the Loans; PROVIDED, HOWEVER, that the
Loan Documents Schedule does not include a list of all of the Financing
Statements included within the definition of the Loan Documents. To the
best of the Meditrust Parties' knowledge, except as set forth on EXHIBIT
ZZ-3 attached hereto, MMI has not entered into any express written
agreement, waiving in any material respect, any material obligation of any
Borrower or any Guarantor under any of the Loan Documents that would
pertain to any period from and after the date hereof. MMI has not waived
(by express written
97
or verbal agreement), in any material respect, the Borrowers' binding
commitments to fulfill their respective payment obligations under such Loan
Documents. The Loan Documents listed on the Loan Documents Schedule have
not been modified or amended, by written or express verbal agreement,
except as expressly set forth on the Loan Documents Schedule. To the best
of the Meditrust Parties' knowledge, MMI is not in default under any of the
Loan Documents. True and correct copies of the Loan Documents listed on the
Loan Documents Schedule will be made available to the Purchaser for its
review during the Study Period and thereafter until the Closing Date. No
interest (including, without limitation, Additional Interest) has been paid
in advance under the Loans other than as set forth on EXHIBIT ZZ-2 attached
hereto. The outstanding principal amount of each Loan as of the date hereof
and the current interest rate and the formula for computing Additional
Interest thereunder is set forth on EXHIBIT ZZ-1 attached hereto. Except as
disclosed in the Loan Documents identified on the Loan Document Schedule or
as set forth on EXHIBIT ZZ-3, none of the Borrowers have been given any
concessions regarding the principal and/or interest payable under the Loan
Documents (including, without limitation, any waiver of such Borrower's
agreement to fulfill its payment obligations under the Loan Documents) that
would pertain to any period from and after the Closing Date. MMI is the
only Meditrust Entity that is a party to any of the Loan Documents, is
bound by or holds any interest in any of the Loan Documents. Without
limiting the foregoing, MMI holds all right, title and interest of the
lender under the Loan Documents.
(4) LOAN DOCUMENTS DEFAULTS. EXHIBIT VV attached hereto lists all
monetary defaults existing under any of the Loan Documents as of the date
of the execution of this Agreement.
(5) COLLATERAL. The Stock, the Letters of Credit and the Cash
Collateral constitute the only Collateral in the possession of MMI and the
Subsidiaries. The Cash Collateral is the only cash or cash equivalent held
by MMI and the Subsidiaries under any escrow arrangement established under
any of the Lease Documents or Loan Documents. MMI and the Subsidiaries are
not holding any Escrowed Funds or Security Deposits. As disclosed in the
Cash Conversion Letters, MMI and the Subsidiaries have applied all amounts
previously held in escrow under the applicable Lease Documents and/or Loan
Documents identified in the Cash Conversion Letters toward the obligations
of the applicable Borrowers or Tenants secured under such applicable Lease
Documents and/or Loan Documents. The "Cash Collateral" as defined under
each of the foregoing agreements has not been replenished. Other than as
set forth in the Cash Conversion Letters, MMI and the Subsidiaries have not
applied any Cash Collateral, Security Deposits or Escrowed Funds held in
escrow by MMI or the Subsidiaries under the Lease Documents or the Loan
Documents toward any of the applicable Tenants' and/or Borrowers'
respective obligations under any of the Lease Documents and/or Loan
Documents.
(6) RELEASED PARTIES. The Released Harborside Borrowers have been
released from all of their obligations under the Harborside Loan Documents.
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(7) INTERCREDITOR AGREEMENTS. The Intercreditor Agreements contain all
material obligations of any Working Capital Lender with respect to the
transactions contemplated thereunder. Except as disclosed on EXHIBIT W-3
attached hereto, MMI and the Subsidiaries have not waived in any material
respect the binding commitments of any of the Working Capital Lenders to
fulfill their respective obligations thereunder. The Intercreditor
Agreements have not been modified or amended, by written or express verbal
agreement, except as expressly set forth on EXHIBIT W-1 attached hereto.
Except as set forth on EXHIBIT W-2 attached hereto, (i) MMI and the
Subsidiaries have not received any notices of default from any Working
Capital Lender, nor sent any notices of default to any Working Capital
Lender and (ii) to the best of the Meditrust Parties' knowledge, there are
no monetary defaults that exist thereunder as of the date hereof.
(8) OPERATING EXPENSES. All obligations to pay the Operating Expenses
payable by any Subsidiary with respect to the Leased Properties have been
passed through to the Tenants under the Leases. As the holder of the
Mortgages encumbering the Mortgaged Properties, MMI is not obligated to pay
any Operating Expenses relating to the Mortgaged Properties.
(e) HEALTHCARE AND OPERATIONS MATTERS.
(1) COMPLIANCE WITH LAW.
(A) To the best of the Meditrust Parties' knowledge, (i) none of
the Subsidiaries is the subject of any investigation relating to any
of the Other Properties, the Leased Properties or the Lease Documents
and MMI is not the subject of any investigation relating to the
Mortgaged Properties or the Loan Documents, nor (ii) has any
investigation, prosecution or other action pertaining to any of the
Assets been threatened by any Governmental Authority or any Person
against any of the Meditrust Entities regarding non-compliance of any
of the Assets, any of the Subsidiaries or any of the Properties with
any Legal Requirement which is reasonably likely to have a material
adverse effect on the Assets, the Subsidiaries or the Properties and
no basis exists for any such investigation.
(B) To the best of the Meditrust Parties' knowledge, there is no
pending or threatened recoupment or penalty action or proceeding
against MMI or any Subsidiary under any Third Party Payor Program; it
being understood that the Meditrust Parties make no representation as
to whether there is any pending or threatened recoupment or penalty
action against any of the Properties, any Borrower, any Tenant or any
Guarantor.
(C) To the best of the Meditrust Parties' knowledge, neither MMI
nor any of the Subsidiaries nor any director, officer or employee of
the any of the foregoing acting for or on behalf of any of the
foregoing, has paid or caused to be paid, directly or indirectly, in
connection with the business of MMI or any Subsidiary (i) any bribe,
kickback or other similar payment to any Governmental Authority or any
agent of any supplier or customer or (ii) any
99
contribution to any political party or candidate (other than from
personal funds of directors, officers or employees not reimbursed by
their respective employers or in compliance with applicable law).
(f) COPIES COMPLETE. To the best of the Meditrust Parties' knowledge, all
copies of any Due Diligence Materials delivered or made available by the
Meditrust Entities or the Sellers Parties pursuant to this Agreement are true
and complete copies of all such materials that constitute Due Diligence
Materials that are in the possession of the Meditrust Entities or the Seller
Parties. Without limiting the foregoing, the Meditrust Parties represent and
warrant that true and correct copies of the Lease Documents, the Loan Documents,
the Organizational Documents, the Meditrust Assignment and Assumption
Agreements, the Ground Leases, the Brookline Ground Lease, the ▇▇▇▇▇▇ Guaranty
Credit Agreement, the ▇▇▇▇▇▇ Guaranty Documents, the Alabaster, AL Purchase
Option, the Concord Option Agreement, the Concord Management Agreement, the Cash
Conversion Letters, the Existing Title Policies and the Intercreditor Agreements
are included in the Due Diligence Materials. Except as otherwise expressly
provided in the immediately preceding sentence and in the other Express
Representations and Warranties, the Meditrust Parties make no representation or
warranty whatsoever concerning the truth, accuracy or completeness of any of the
Due Diligence Materials (i.e., whether (x) any material fact or statement is
omitted therefrom which would be necessary in order to prevent the statements
contained therein from being misleading or (y) such materials, if prepared by
any party other than the Meditrust Entities or the Seller Parties, are in and of
themselves complete). The Meditrust Parties represent and warrant that the
Meditrust Entities have not willfully or knowingly destroyed, withheld,
discarded or otherwise disposed of (or instructed any of the Seller Parties to
discard, withhold, destroy or otherwise dispose of) any of the materials in any
of their respective files relating to any of the Assets, any of the
Subsidiaries, any of the Properties, any Borrower, any Tenant and/or any
Guarantor other than those matters that are subject to attorney-client
privilege.
SECTION 7.3. MEDITRUST PARTIES' KNOWLEDGE; PURCHASER'S KNOWLEDGE. Whenever
a representation is qualified by the phrase "to the best of the Meditrust
Parties' knowledge", or by words of similar import, the accuracy of such
representation shall be based solely on the actual (as opposed to constructive
or imputed) knowledge of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ with due inquiry (PROVIDED, THAT, such due inquiry shall not be
deemed to require the Meditrust Parties to (a) make specific inquiry of any
Tenant, any Borrower, any Guarantor, any insurance company, any Third Party
Payor, any Governmental Authority and/or any of the other Seller Parties or (b)
investigate any of the Properties). Whenever a representation is qualified by
the phrase "to the best of the Purchaser's knowledge", or by words of similar
import, the accuracy of such representation shall be based solely on the actual
(as opposed to constructive or imputed) knowledge of ▇▇▇▇▇ ▇. ▇▇▇▇▇ with due
inquiry.
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ARTICLE 8
CLOSING
SECTION 8.1. CLOSING. The Closing shall occur at 10:00 A.M. Eastern Time on
the Closing Date at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., One
Financial Center, Boston, Massachusetts or, at the Purchaser's option
(exercisable upon written notice to the Sellers) at such other place as is
designated by the Purchaser, or at such other place as is otherwise agreed to in
writing by the parties hereto. In the event that the Purchaser requests that the
Closing Date be accelerated, the Sellers shall use reasonable efforts to attempt
to accommodate such request.
SECTION 8.2. SELLERS' DELIVERIES. At the Closing, subject to the provisions
of Section 10.2, the Sellers shall deliver or cause to be delivered to the
Purchaser, at such Seller's sole expense, each of the following items (and such
delivery shall be deemed satisfied if the Sellers shall have delivered such
items to the Title Company at the Closing with escrow instructions satisfactory
to the Purchaser and the Title Company in their reasonable discretion):
(a) The Assignment of Limited Liability Company Membership Interest
executed by MHC;
(b) An Assignment and Assumption of Loan Documents for each Mortgaged
Property, where the applicable Borrower is not a party to any of the Bankruptcy
Proceedings, executed by MMI.
(c) An Assignment and Assumption of Loan Documents Relating to Loans
Subject to Bankruptcy Proceedings for each Mortgaged Property where the
applicable Borrower is a party to any of the Bankruptcy Proceedings, executed by
MMI.
(d) UCC Assignments executed by MMI.
(e) A Notice to Tenant for each Tenant and a Notice to Subtenant for each
Recognized Subtenant.
(f) A Notice to Borrower for each Borrower, executed by MMI.
(g) A Notice to Lender for each Working Capital Lender, executed by MMI.
(h) A Notice to Law Firm for each law firm that rendered a Restricted
Opinion.
(i) The Stock.
(j) The Letters of Credit and the applicable Transfer Notices executed by
MMI.
(k) Any other Collateral in the Meditrust Entities' possession or control.
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(l) Subject to Section 3.4 and Section 4.2, the Marlton Ground Lessor's
Estoppel Certificate executed by the Marlton Ground Lessor.
(m) Subject to Section 3.4 and Section 4.2, the Wethersfield Ground
Lessor's Estoppel Certificate executed by the Wethersfield Ground Lessor.
(n) Subject to Section 3.4(c), the HUD Consents and HUD Estoppel
Certificate executed by the HUD Mortgagee.
(o) Subject to Section 3.4 and Section 4.2, Tenant Estoppel Certificates
from each Tenant that is not the subject of a Bankruptcy Proceeding as of the
Closing Date and any obtainable Tenant Estoppel Certificates executed by any
applicable Tenants that are the subject of any Bankruptcy Proceedings as of the
Closing Date.
(p) Subject to Section 3.4 and Section 4.2, Borrower Estoppel Certificates
from each Borrower that is not the subject of a Bankruptcy Proceeding as of the
Closing Date and any obtainable Borrower Estoppel Certificates executed by the
applicable Borrowers that are the subject of any Bankruptcy Proceedings as of
the Closing Date.
(q) All keys, if any, in the possession or control of any of the Meditrust
Entities to all locks on the Improvements.
(r) A 6(d) Certificate for each of the Concord Condominium Units from the
Trustee of the Concord Condominium Trust, executed by New Meditrust-LLC.
(s) Municipal Lien Certificates relating to each of the Leased Properties
located in Massachusetts.
(t) Such evidence or documents as may be reasonably required by the Title
Company in order to delete pre-printed exceptions relating to: (i) mechanics' or
materialmen's liens; (ii) parties in possession; (iii) the status and capacity
of the Sellers and the authority of the Person or Persons who are executing the
various documents on behalf of the Sellers in connection with the sale of the
Assets and/or (iv) the legal existence of the Subsidiaries; PROVIDED, HOWEVER,
that with respect to (x) parties in possession, the Meditrust Parties shall only
be obligated to identify the Leases that have been entered into (or assumed) by
any Subsidiary, the Recognized Subleases and any Subleases consented to by any
Subsidiary (or any of their respective predecessors-in-interest that were owned
and controlled, either directly or indirectly, by Meditrust or Meditrust-BT) and
(y) mechanic's or materialman's liens, the Meditrust Parties shall only be
obligated to deliver an indemnity relating to Mechanic's Liens, but shall make
no representation nor provide any indemnity relating to any mechanic's or
materialman's lien that any Tenant or any Borrower is required to satisfy or
release pursuant to any of the Lease Documents and/or any of the Loan Documents.
102
(u) All Permits, plans, specifications, guaranties and warranties, if any,
relating to the Leased Properties and in the possession or control of any of the
Meditrust Entities.
(v) The Closing Statement executed by the Sellers.
(w) Such additional documents to be executed by the Sellers as may be
reasonably requested by the Purchaser in order to effectuate the transaction
contemplated hereby (including, without limitation, any other documents required
under applicable Legal Requirements to convey the Assets to the Purchaser or to
record any conveyancing document).
(x) Originals of the Lease Documents, the Loan Documents (including,
without limitation, all promissory notes included within the definition of Loan
Documents endorsed to the Purchaser pursuant to an Allonge) and the Contracts.
(y) Originals of the opinions rendered to any of the Meditrust Entities in
connection with the execution and delivery of the Lease Documents and/or the
Loan Documents.
(z) The Meditrust Parties' Closing Certification, certifying that, subject
to Section 7.2, all of the representations and warranties made by the Sellers in
this Agreement are true and correct as of the Closing Date.
(aa) Discharges of any Encumbrances held by MMI relating to any of the Sun
Leased Properties.
(bb) The Existing Title Insurance Policies.
(cc) To the extent not otherwise identified above, the Consents.
(dd) Subject to Section 3.4(c), certificates representing the
Meditrust-Bedford Shares and the Meditrust-California Shares.
(ee) Subject to Section 3.4(c), the corporate/organizational record books,
corporate seals, stock books, stock ledgers and the like of the Subsidiaries.
(ff) Duly executed resignations, dated as of the Closing Date, from all of
the directors, officers, managers and trustees, as applicable, of the
Subsidiaries.
(gg) Secretary's certificates and such certificates from public officials
relating to the legal existence and good standing of the Subsidiaries and the
Organizational Documents as the Purchaser may reasonably request.
(hh) The MMI Loan Documents to which MMI is a party, executed by MMI.
(ii) The ▇▇▇▇▇▇ Guaranty Releases.
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(jj) The Assignment of Claims, executed by MMI.
(kk) The Bradenton P&S, executed by Meditrust.
Notwithstanding anything to the contrary set forth herein, if the Sellers
do not have in their possession originals of any of the documents referenced in
(u), (x), (y) or (bb), other than promissory notes included within the
definition of Loan Documents, the Sellers shall satisfy their obligations
hereunder by delivering true and correct copies of such items to the Purchaser.
SECTION 8.3. PURCHASER'S DELIVERIES. At the Closing, the Purchaser shall
deliver to the Sellers the following items (and such delivery shall be deemed
satisfied if the Purchaser shall have delivered such items to the Title Company
at Closing with escrow instructions satisfactory to the Sellers and the Title
Company in their reasonable discretion):
(a) Immediately available federal funds sufficient to pay the Purchase
Price (less the Deposit and the original principal amount of the MMI Loan) and
the Purchaser's share of all escrow costs and closing expenses.
(b) The MMI Loan Documents.
(c) The opinions, title insurance and other due diligence materials
relating to the MMI Loan.
(d) The Assignment of Limited Liability Company Membership Interest
executed by the Purchaser.
(e) An Assignment and Assumption of Loan Documents for each Mortgaged
Property, where the applicable Borrower is not a party to any of the Bankruptcy
Proceedings, executed by the Purchaser.
(f) An Assignment and Assumption of Loan Documents Relating to Loans
Subject to Bankruptcy Proceeding for each Leased Property, where the applicable
Borrower is a party to any of the Bankruptcy Proceedings, executed by the
Purchaser.
(g) The Closing Statement, executed by the Purchaser.
(h) Such additional documents to be executed by the Purchaser as may be
reasonably requested by the Sellers in order to effectuate the transaction
contemplated hereby.
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(i) The Purchaser's Closing Certification, certifying that, subject to
Section 7.1, all of the representations and warranties made by the Purchaser in
this Agreement are true and correct as of the Closing Date.
(j) The Bradenton P&S, executed by the Purchaser.
SECTION 8.4. COSTS, PRORATIONS AND POST-CLOSING TAX OBLIGATIONS.
(a) GENERAL. For purposes of the prorations and adjustments to be made
pursuant to this Section 8.4, the Purchaser shall be deemed to own the
Membership Interest and therefore be entitled to any revenues and be responsible
for any expenses for the entire day upon which the Closing is completed. Any
apportionments and prorations which are not expressly provided for in this
Agreement shall be made in accordance with customary practice. The Sellers and
the Purchaser shall jointly prepare a schedule of adjustments (the "Closing
Statement") to be executed on the Closing Date. Any net adjustment in favor of
the Purchaser shall be credited against the Purchase Price at the Closing. Any
net adjustment in favor of the Sellers shall be added to the Purchase Price at
the Closing. A copy of a Closing Statement agreed upon by each Seller and the
Purchaser shall be executed by each Seller and the Purchaser and delivered to
the Escrow Agent at the Closing.
(b) TAXES AND ASSESSMENTS.
(i) TAXES. To the extent that any Real Estate Taxes assessed against
any Leased Property is to be prorated between the Sellers and the Purchaser
hereunder such proration shall be made on an accrual basis, based upon the
actual current ▇▇▇▇; PROVIDED, HOWEVER, that in the event that any Real
Estate Taxes may be paid in installments the same shall be prorated over
the longest period of time payments are permitted by law. If the most
recent ▇▇▇▇ received by any Meditrust Entity before the Closing Date is not
the actual current tax ▇▇▇▇, then the Sellers and the Purchaser shall
initially prorate the applicable Real Estate Taxes at the Closing by
applying one hundred percent (100%) of the tax rate for the period covered
by the most current available tax ▇▇▇▇ to the latest assessed valuation,
and shall reprorate the Real Estate Taxes retroactively promptly after the
actual current tax ▇▇▇▇ is then available. All Real Estate Taxes assessed
against any Leased Property that is not subject to a Lease as of the
Closing Date (PROVIDED, THAT, such Leased Property is not then subject to a
management arrangement with the Purchaser or any of its Affiliates) and
accruing before the Closing Date shall be the obligation of the Sellers and
all Real Estate Taxes assessed against any such Leased Property accruing on
and after the Closing Date shall be the obligation of the Purchaser. There
shall be no proration as to Real Estate Taxes assessed against any Leased
Property that is subject to a Lease as of the Closing Date; PROVIDED,
HOWEVER, that notwithstanding the foregoing, the Sellers shall pay any Real
Estate Taxes outstanding as of the Closing Date that relate to any such
Leased Property to the extent that such Real Estate Taxes were due and
payable thirty (30) days prior to the Closing. In the event that any
Meditrust Entity has prepaid any Real Estate Taxes to the municipality in
which any Property is located, the Sellers shall be entitled to a credit
from the Purchaser therefor at the Closing.
105
(ii) POST-CLOSING SUPPLEMENTAL REAL ESTATE TAXES. In no event shall
the Sellers be charged with or responsible for any increase in Real Estate
Taxes resulting from any improvements made or leases entered into on or
after the Closing.
(iii) POST-CLOSING REFUNDS OF REAL ESTATE TAXES. Any refunds of Real
Estate Taxes made after the Closing shall be held in trust and shall first
be applied to reasonable unreimbursed third-party costs incurred in
obtaining the refund, then prorated and paid to (x) the Sellers (for the
period ending prior to the Closing Date), if such Real Estate Taxes were
paid by MMI or any Subsidiary with respect to any Real Property that is not
mortgaged or leased by any Borrower or Tenant that is the subject of any
Bankruptcy Proceeding as of the Closing Date, (y) subject to the terms of
the applicable Lease Documents and Loan Documents, the applicable Tenant or
Borrower that leases or owns the applicable Real Property, if such Real
Estate Taxes were paid by such Tenant or such Borrower and (z) in all other
instances, the Purchaser.
(iv) PENDING REAL ESTATE TAX PROCEEDINGS. If any proceeding to
determine the assessed value of any Leased Property or the Real Estate
Taxes payable with respect to any Leased Property for any period ending
prior to the Closing Date has been commenced before the date hereof and
shall be continuing as of the Closing Date, (x) in the event that the
applicable Tenant of such Leased Property is not the subject of any
Bankruptcy Proceeding as of the Closing Date and the applicable Subsidiary
(rather than the applicable Tenant) has paid the Real Estate Taxes in
question for such period ending prior to the Closing, the Sellers shall be
authorized to continue to prosecute such proceeding on behalf of such
Subsidiary, the Sellers shall be entitled to any abatement proceeds
therefrom allocable to any such period ending before the Closing Date and
the Purchaser agrees to cooperate with the Sellers and to execute any and
all documents reasonably requested by the Sellers in furtherance of the
foregoing, PROVIDED, HOWEVER, THAT, the Sellers shall not enter into any
agreement in the settlement of such a proceeding to the extent the same
would be binding on any Subsidiary or the Purchaser with respect to any
period after the Closing and (y) in all other instances, (1) the Subsidiary
may continue to prosecute such proceeding on its own behalf, (2) the
Purchaser shall be entitled to any abatement proceeds therefrom allocable
to any period ending before the Closing Date (together with the obligation
to pay over any applicable refund amounts to the Tenants entitled to the
same under the Leases) and (3) the Sellers agree to cooperate with the
Purchaser and to execute any and all documents reasonably requested by the
Purchaser in furtherance of the foregoing.
(c) RENTS, INTEREST AND OTHER AMOUNTS UNDER THE LOAN AND LEASE DOCUMENTS.
(i) Rents under the Lease Documents (whether collected or uncollected)
with respect to the month in which the Closing occurs, as well as unpaid
interest accruing under any
106
Loan Documents executed by any Borrower that is not the subject of any
Bankruptcy Proceeding for the month in which the Closing Date occurs shall
be prorated between the Sellers and the Purchaser as of the Closing Date;
PROVIDED, HOWEVER, that (x) such uncollected Rents shall only be adjusted
as between the Purchaser and the Seller when and only to the extent that
any such payment is actually made by the applicable Tenant and (y) the
Purchaser has no obligation to attempt to collect any such payment. Any
adjustments to be made between the Purchaser and the Seller shall be made
promptly afer receipt of any payment and in no event later than ten (10)
days after receipt of such payment.
(ii) All prepaid last month's rent, Cash Collateral, Security Deposits
and Escrowed Funds (including, without limitation, with regard to each of
the foregoing, unpaid interest thereon), if any, held or required to be
held (unless such amounts were (x) applied by the Meditrust Entities
pursuant to the Cash Conversion Letters and were never replenished or (y)
never delivered to any Meditrust Entity), under any of the Leases or any of
the Loan Documents shall be paid to the Purchaser or credited against the
Purchase Price.
(iii) Subject to the terms of the Section 8.4(c)(i) and Section
8.4(c)(v), uncollected rents under the Leases attributable to the period
prior to the Closing Date shall be paid to (or retained by) the Purchaser.
No adjustment shall be made to the Purchase Price for such uncollected
rents and the Sellers shall have no obligations with regard to such
uncollected rents other than to forward to the Purchaser such amounts, if
any, that are paid to the Sellers after the Closing Date. The Sellers shall
make available to the Purchaser upon request the Sellers' records regarding
any uncollected rents attributable to the period prior to the Closing Date.
(iv) The Sellers shall have no right to collect directly from the
Tenants under the Leases any uncollected amounts referred to in Section
8.4(c)(i) or Section 8.4(c)(v). The Purchaser shall use reasonable efforts
to collect such uncollected rents and the Purchaser shall make available to
the Sellers, upon request, the Purchaser's records regarding the collection
of any of the uncollected amounts described in Section 8.4(c)(i) and
8.4(c)(v).
(v) Notwithstanding anything to the contrary set forth herein, (x)
Additional Rent and (y) Additional Interest (with respect to each Loan made
to any Borrower that is not the subject of any Bankruptcy Proceeding), in
each instance, for the quarter in which the Closing occurs shall be
prorated between the Purchaser and the Sellers, but only when and to the
extent that any such payment is actually made by the applicable Tenant or
applicable Borrower. Any adjustments to be made between the Purchaser and
the Seller shall be made promptly after receipt of any payment and in no
event later than ten (10) days after receipt of such payment.
(d) OPERATING EXPENSES. Based upon the Sellers' representation and warranty
that all Operating Expenses are payable by the Borrowers and the Tenants
pursuant to the Loan Documents or the Lease Documents, there shall be no
adjustment at the Closing for Operating Expenses.
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(e) INCOME TAXES. The Sellers shall remain fully responsible for all
federal, state and local income tax liabilities of the Subsidiaries accrued,
incurred or arising for the period prior to the Closing Date. The Sellers shall
prepare and file, or cause to be prepared and filed, all federal, state and
local income tax returns of the Subsidiaries for the stub taxable period
commencing on January 1, 2001 and ending on the day immediately before the
Closing Date (the "Sellers' Returns"). The Purchaser shall prepare and file or
cause to be filed all federal, state and local income tax returns of the
Subsidiaries for the stub taxable period commencing on the Closing Date and
ending on December 31, 2001 (the "Purchaser's Returns"). The Sellers shall pay
the taxes shown on the Seller's Returns, and the Purchaser shall pay the taxes
shown on the Purchaser's Returns.
(f) CLOSING COSTS. The Purchaser and the Sellers shall each pay their own
legal fees related to the preparation of this Agreement and all documents
required to settle the transaction contemplated hereby. The Sellers shall pay
all transfer taxes, recording costs and documentary stamp charges. The Purchaser
shall pay all costs associated with its due diligence, including, without
limitation, the cost of appraisals, architectural, engineering, credit and
environmental reports; PROVIDED, HOWEVER, that notwithstanding the foregoing (i)
the Purchaser and the Sellers shall each pay one-half (1/2) of the filing fees
due in connection with the Filing of a Notification and Report Form required
under the HSR Act and (ii) if the Closing is consummated, the Purchaser shall be
entitled to a credit to the Purchase Price in the aggregate amount of the title
insurance premiums and charges, title examination costs and survey costs
incurred by the Purchaser and/or any of Purchaser's Agents in connection with
the consummation of the transaction contemplated hereunder up to a maximum
amount of SEVEN HUNDRED FIFTY THOUSAND DOLLARS ($750,000). All other customary
purchase and sale closing costs shall be paid by the Sellers or the Purchaser in
accordance with applicable customary practice.
(g) REDUCTIONS TO PURCHASER PRICE RELATING TO REJECTED FACILITIES.
Notwithstanding anything to the contrary set forth in this Agreement, reductions
to the Purchase Price at the Closing as a consequence of any Rejected Facility
shall be made to proportionately reduce the cash portion of the Purchase Price
and the original principal amount of the MMI Loan.
(h) USE OF MONEY TO CLEAR TITLE. To enable the Sellers to comply with their
obligations hereunder, on the Closing Date, the Sellers may use the Purchase
Price or any portion thereof to clear title to any of the Assets, the Securities
and/or the Properties provided that all instruments evidencing the clearing
thereof are delivered at Closing; EXCEPT THAT, in the case of a mortgage held by
an institutional lender and provided the Title Company accepts the same in lieu
of an actual discharge or lien release, the Sellers may deliver a "pay-off"
letter satisfactory to the Title Company and shall promptly thereafter obtain
and record a discharge.
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ARTICLE 9
BROKER'S COMMISSION
The Meditrust Parties represent and warrant to the Purchaser and the
Purchaser represents and warrants to each of the Meditrust Parties that it has
dealt with no broker or other Person who would be entitled to be paid a
commission or other fee in connection with the transaction which are the subject
of this Agreement and the Meditrust Parties agree to indemnify the Purchaser and
the Purchaser agrees to indemnify the Meditrust Parties from and against any
loss, cost, damage or expense arising out of the breach by the indemnifying
party of the foregoing representation and warranty. The provisions of this
Section shall survive the Closing or termination of this Agreement.
ARTICLE 10
EXTENSION
SECTION 10. 1. EXTENSION TO CURE. Subject to the provisions of Section 10.2
hereof, if, on the Closing Date (a) the Sellers shall be unable to give title or
to make conveyance, or to deliver possession of the Assets, the Securities and
the Properties all as herein stipulated, in any material respect, (b) the
Assets, the Subsidiaries, the Securities and/or the Properties do not conform
with the provisions hereof, in any material respect, or (c) if all of the
Closing Conditions have not been satisfied in any material respect (or waived in
writing), THEN, (i) the Purchaser shall so notify the Sellers and the Escrow
Agent on or, if reasonably possible, before the Closing Date or (ii) with
respect to any Closing Condition that is a condition precedent to the Sellers'
obligations to consummate the Closing, the Sellers shall so notify the Purchaser
and the Escrow Agent on or, if reasonably possible, before the Closing Date;
whereupon, at the Sellers' option (exercisable in the Sellers' sole and absolute
discretion on or before the Closing Date), the Closing Date shall be extended up
to thirty (30) days to allow the Closing Conditions to be satisfied.
The Purchaser shall have the election, at either the original or extended
time for performance, to accept such title as the Sellers can deliver to the
Assets, the Securities and the Properties (in their then condition) and/or to
waive any unsatisfied Closing Conditions and to pay the Purchase Price for the
Assets without deduction (except as otherwise expressly provided in Section
10.2), in which case, the Sellers shall convey such title to the Assets,
PROVIDED, HOWEVER, that in the event of such conveyance in accord with the
provisions of this Section 10.1, if any portion of any (x) Property shall be
damaged by fire or other insured casualty, THEN subject to the terms of the
applicable Lease Documents and/or Loan Documents, the Sellers shall pay over to
the Purchaser at Closing all amounts recovered on account of any applicable
insurance policies and, to the extent that any such damaged Property is a
Mortgaged Property, MMI shall assign to the Purchaser all of its rights
(including amounts recoverable) under any applicable insurance policies and (y)
Property has been taken or condemned by any
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action of a Governmental Authority or quasi-governmental authority or damaged by
action of any Governmental Authority, THEN, subject to the terms of the
applicable Lease Documents and/or Loan Documents, the Sellers shall pay over to
the Purchaser at Closing all damage awards recovered for such condemnation or
damage and, to the extent that any such condemned or damaged Property is a
Mortgaged Property, MMI shall assign to the Purchaser all of its rights
(including all awards recoverable) with respect to such condemnation or damage.
If on the Closing Date, as it may be extended hereunder, the Sellers are unable
to cure said title defects or make the Assets or the Properties conform to the
requirements hereof or the Closing Conditions are not satisfied, as the case may
be, THEN, subject to Section 10.2 hereof, the Purchaser shall have the option of
terminating this Agreement on the Closing Date, exercisable by written notice to
the Meditrust Entities and the Escrow Agent. In the event that the Purchaser
exercises such option to terminate this Agreement in accordance with the terms
hereof the Deposit shall be promptly refunded to the Purchaser, whereupon this
Agreement shall terminate and none of the parties hereto shall have any further
rights or remedies hereunder, except as otherwise specifically provided herein
to survive the termination of this Agreement.
SECTION 10.2. REJECTED FACILITIES. Subject to Section 4.2 hereof, in the
event that, at the original or extended time for performance (a) the Sellers
shall be unable to give title or to make conveyance, or to deliver possession of
any of the Assets, all as herein stipulated in any material respect, (b) any
Facility (or any of the Assets relating thereto) does not conform with the
provisions hereof, in any material respect or (c) if any of the Closing
Conditions pertaining to any Facility (or any of the Assets relating thereto)
have not been satisfied in any material respect (or, subject to Section 3.1
hereof, waived in writing by the Purchaser) (in each case, a "Reason for
Rejection"), THEN, the applicable Facility (together with any other Facility
which is encumbered by a Mortgage securing the same Loan as the applicable
Facility without regard to any so-called cross-collateralization provisions)
described in clauses (a), (b) or (c) shall be deemed a "Rejected Facility" and
notwithstanding the foregoing, as long as (i) the Purchaser does not have the
right or has elected not to exercise its right to terminate this Agreement
pursuant to Section 11.5 or (ii) the Sellers do not have the right or have
elected not to exercise their right to terminate this Agreement pursuant to
Section 11.6, the Purchaser and the Sellers shall remain obligated to perform
their obligations hereunder (subject to the other terms and conditions of this
Agreement), PROVIDED, HOWEVER, THAT (1) the Purchaser shall have no further
obligations or liabilities with respect to each Rejected Facility (and the
Property and Lease Documents or Loan Documents relating thereto) hereunder, (2)
on or prior to the Closing Date, if such Rejected Facility is included within
the definition of the Leased Properties, the applicable Subsidiary that owns
each Rejected Facility shall transfer such Rejected Facility (and the Property
and the Lease Documents relating thereto) to another entity owned or controlled
by Meditrust other than any other Subsidiary, unless such Rejected Facility is
the Fresno, CA Facility; in which event, Meditrust-CA shall transfer the Fresno
Partnership Interests to another entity owned or controlled by Meditrust other
than any Subsidiary and (3) the Purchaser shall be entitled to a credit toward
the Purchase Price for each Rejected Facility in an amount equal to (x) the
Allocated Value for such Rejected Facility unless the Reason for Rejection
relating to
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such Rejected Facility relates to a failure to obtain any of the Consents or (y)
if the Reason for Rejection relating to such Rejected Facility relates to the
failure to obtain any of the Consents, an amount equal to one hundred fifteen
percent (115%) of the Allocated Value for such Rejected Facility BUT, ONLY,
until the aggregate sum of such credits to the Purchase Price equals FIFTY SEVEN
MILLION FIVE HUNDRED THOUSAND DOLLARS ($57,500,000) and after the aggregate sum
of such credits to the Purchase Price equals FIFTY SEVEN MILLION FIVE HUNDRED
THOUSAND DOLLARS ($57,500,000), any credit to the Purchase Price given for any
Rejected Facility shall equal the Allocated Value of such Facility.
SECTION 10.3. EXTENSION DUE TO AN INJUNCTION. In the event that, as of the
Closing Date (as the same may have been extended), the Meditrust Entities are
unable to perform their obligations hereunder as a result of any Injunction,
THEN, the Closing shall be postponed and the Meditrust Entities shall use their
best efforts to obtain a dissolution, revocation, cancellation or rescission of
such Injunction which will enable to the Closing to occur. The parties hereto
shall consummate the Closing as soon as is reasonably practical after such
dissolution, revocation, cancellation or rescission has been obtained, BUT, in
no event, more than thirty (30) days thereafter. If the Meditrust Entities do
not obtain such dissolution, revocation, cancellation or rescission within six
(6) months after the Closing Date (as the same may have been extended), the
Deposit shall promptly be returned to the Purchaser and this Agreement shall
terminate and the parties shall have no further obligation to each other except
for matters specifically surviving the termination of this Agreement.
ARTICLE 11
TERMINATION AND DEFAULT
SECTION 11.1. TERMINATION WITHOUT DEFAULT. If the sale of the Assets is not
consummated because of the failure of any condition precedent to the Purchaser's
obligations expressly set forth in this Agreement or for any other reason except
(i) a default by the Purchaser in its obligation to purchase the Assets in
accordance with the provisions of this Agreement or (ii) as otherwise provided
in Sections 11.2 and 11.3, the Deposit shall promptly be returned to the
Purchaser and this Agreement shall terminate and the parties shall have no
further obligation to each other except for matters specifically surviving the
termination of this Agreement.
SECTION 11.2. PURCHASER'S DEFAULT. If the Meditrust Entities shall have
performed or tendered performance of all of their material obligations under
this Agreement and if the sale contemplated hereby is not consummated because of
a default by the Purchaser in its obligation to purchase the Assets in
accordance with the terms of this Agreement, THEN (a) this Agreement shall
terminate; (b) the Deposit shall be promptly paid to and retained by the Sellers
as liquidated damages; and (c) except for (i) the indemnification set forth in
Section 4.1 and Article 9 hereof and (ii) compliance with the provisions of
Section 4.3 hereof, the Sellers and the Purchaser shall have no further
obligations to each other. THE PURCHASER AND THE SELLERS ACKNOWLEDGE THAT THE
DAMAGES TO THE SELLERS IN THE EVENT
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OF A BREACH OF THIS AGREEMENT BY THE PURCHASER WOULD BE DIFFICULT OR IMPOSSIBLE
TO DETERMINE, THAT THE AMOUNT OF THE DEPOSIT REPRESENTS THE PARTIES' BEST AND
MOST ACCURATE ESTIMATE OF THE DAMAGES THAT WOULD BE SUFFERED BY THE SELLERS IF
THE TRANSACTION SHOULD FAIL TO CLOSE AND THAT SUCH ESTIMATE IS REASONABLE UNDER
THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT AND UNDER THE
CIRCUMSTANCES THAT THE SELLERS AND THE PURCHASER REASONABLY ANTICIPATE WOULD
EXIST AT THE TIME OF SUCH BREACH. THE PURCHASER AND THE SELLERS AGREE THAT
EXCEPT FOR (i) MATTERS SPECIFICALLY SURVIVING THE CLOSING OR ANY EARLIER
TERMINATION OF THIS AGREEMENT (OTHER THAN REPRESENTATIONS AND WARRANTIES) AND
(ii) THE OBLIGATIONS OF THE PURCHASER SET FORTH IN THE PURCHASER'S DOCUMENTS,
THE SELLERS' RIGHT TO RETAIN THE DEPOSIT SHALL BE THE SELLERS' SOLE REMEDY, AT
LAW AND IN EQUITY, FOR ANY BREACH BY THE PURCHASER OF THE TERMS OF THIS
AGREEMENT.
Notwithstanding the foregoing, but only in the event that the Deposit is
never paid to the Escrow Agent, the Purchaser shall be liable for any direct and
actual damages resulting from any breach by Purchaser of the express
representations and warranties by the Purchaser set forth herein.
SECTION 11.3. SELLERS' DEFAULT. If, as of the Closing Date, subject to the
provisions of Section 7.2 and Section 11.4, the Express Representations and
Warranties contained herein are untrue, in any material respect, or if the
Meditrust Entities shall have failed to perform, in any material respect, any of
the covenants and agreements contained in this Agreement which are to be
performed by the Meditrust Entities, THEN, in addition to all other rights and
remedies available to the Purchaser at law or in equity, the Purchaser may:
(a) without waiving any such default, take any and all legal actions
necessary to compel the Meditrust Entities' specific performance hereunder (it
being acknowledged that damages at law would be an inadequate remedy) and to
consummate the transaction contemplated by this Agreement in accordance with the
provisions of this Agreement; or
(b) without waiving any such default, terminate this Agreement by notice to
the Meditrust Entities and the Escrow Agent in which event the Deposit shall be
promptly returned to the Purchaser;
PROVIDED, HOWEVER, it is acknowledged and agreed that, except as expressly
provided in Section 10.2 hereof, in no event shall the Meditrust Entities be
liable for any damages incurred by the Purchaser as a consequence of any failure
to satisfy any Closing Condition that is not solely within the control of the
Meditrust Entities.
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SECTION 11.4. BREACH OF REPRESENTATIONS. Subject to the provisions of
Section 7.2, the Meditrust Parties agree that the Meditrust Parties shall be
liable for any direct and actual damages resulting from any breach, in any
material respect, of any of the Express Representations and Warranties, BUT,
only to the extent that the aggregate of all such damages incurred by the
Purchaser is greater than the Limitation Threshold and in the event that the
aggregate of all such damages exceeds the Limitation Threshold, the Meditrust
Parties shall be liable for the entire amount of the damages incurred by the
Purchaser.
The Express Representations and Warranties shall survive the Closing for a
period of two (2) years, and no action or proceeding thereon shall be valid or
enforceable, at law or in equity, if a legal proceeding is not commenced within
that time. Notwithstanding the foregoing, any willful and intentional
misrepresentation by any Meditrust Party shall survive the Closing without
regard to the two (2) year limitation set forth in the immediately preceding
sentence. Notwithstanding anything to the contrary set forth herein, none of the
representations or warranties of the Purchaser set forth herein shall survive
the Closing.
SECTION 11.5. TERMINATION UPON ACHIEVEMENT OF THE TERMINATION THRESHOLD FOR
THE PURCHASER. In the event that as of the Closing Date, a Reason for Rejection
exists for two or more Facilities, THEN, if the aggregate sum of the applicable
amounts of the credits to the Purchase Price that the Purchaser would be
entitled to receive under Section 10.2 hereof shall exceed the Termination
Threshold for the Purchaser, the Purchaser shall be entitled to terminate this
Agreement by written notice to the Seller and the Escrow Agent on or prior to
the Closing Date and thereupon (a) the Deposit shall promptly be returned to the
Purchaser, (b) this Agreement shall terminate and (c) the parties shall have no
further obligation to each other except for matters specifically surviving the
termination of this Agreement.
SECTION 11.6. TERMINATION UPON ACHIEVEMENT OF THE TERMINATION THRESHOLD FOR
THE MEDITRUST ENTITIES. In the event that as of the Closing Date, a Reason for
Rejection exists for two or more Facilities, THEN, if the aggregate sum of the
applicable amounts of the credits to the Purchase Price that the Purchaser would
be entitled to receive under Section 10.2 hereof shall exceed the Termination
Threshold for the Meditrust Entities, the Meditrust Entities shall be entitled
to terminate this Agreement by written notice to the Purchaser and the Escrow
Agent and thereupon (a) the Deposit shall promptly be returned to the Purchaser,
(b) this Agreement shall terminate and (c) the parties shall have no further
obligation to each other except for matters specifically surviving the
termination of this Agreement.
ARTICLE 12
MISCELLANEOUS
SECTION 12.1. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto with respect to the transaction
contemplated herein, and it supersedes all prior discussions, understandings or
agreements between the parties. All Exhibits attached hereto are a part of this
Agreement and are incorporated herein by reference.
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SECTION 12.2. BINDING ON SUCCESSORS AND ASSIGNS. Subject to Section 12.3,
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
SECTION 12.3. ASSIGNMENT BY THE PURCHASER. The Purchaser may not assign its
rights under this Agreement without the Sellers' prior written consent, which
consent shall not be unreasonably withheld, conditioned or delayed. The
foregoing notwithstanding, the Purchaser shall have the right to assign this
Agreement without the Sellers' consent to any entity which controls, is
controlled by, or is under common control with any of the Purchaser, The Baupost
Group, L.L.C., AG Special Situations Corp., ▇▇▇▇▇▇ Capital Group and/or ▇▇▇▇▇ ▇.
▇▇▇▇▇ (or any of their respective Affiliates).
SECTION 12.4. WAIVER. The excuse or waiver of the performance by a party of
any obligation of the other party under this Agreement shall only be effective
if evidenced by a written statement signed by the party so excusing or waiving.
No delay in exercising any right or remedy shall constitute a waiver thereof,
and no waiver by the Meditrust Entities or the Purchaser of the breach of any
covenant of this Agreement shall be construed as a waiver of any preceding or
succeeding breach of the same or any other covenant or condition of this
Agreement.
SECTION 12.5. GOVERNING LAW.
(a) This Agreement shall be construed and the rights and obligations of the
Meditrust Entities and the Purchaser hereunder determined in accordance with the
internal laws of the State of New York.
(b) For the purposes of any suit, action or proceeding involving this
Agreement, the parties hereto hereby expressly submit to the jurisdiction of all
federal and state courts sitting in the State of New York and consent that any
order, process, notice of motion or other application to or by any such court or
judge thereof may be served within or without such court's jurisdiction by
registered mail or by personal service, provided that a reasonable time for
appearance is allowed, and the parties hereto agree that such courts shall have
exclusive jurisdiction over any such suit, action or proceeding commenced by
either or both of said parties. In furtherance of such agreement, each of the
parties hereto agrees upon the request of any other party hereto to discontinue
(or agree to the discontinuance of) any such suit, action or proceeding pending
in any other jurisdiction.
(c) Each of the parties hereto hereby irrevocably waives any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement brought in any federal
or state court sitting in the State of New York and hereby further irrevocably
waives any claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum.
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(d) In recognition of the benefits of having any disputes with respect to
this Agreement resolved by an experienced and expert person, the parties hereto
hereby agree that any suit, action, or proceeding, whether claim or
counterclaim, brought or instituted by any party hereto on or with respect to
this Agreement or which in any way relates, directly or indirectly, to this
Agreement or any event, transaction, or occurrence arising out of or in any way
connected with this Agreement or any Property, or the dealings of the parties
with respect thereto, shall be tried only by a court and not by a jury. EACH
PARTY HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT,
ACTION, OR PROCEEDING.
SECTION 12.6. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and it shall be sufficient that the original or facsimile signature
of each party appear on one or more such counterparts. All counterparts shall
collectively constitute a single agreement.
SECTION 12.7. NOTICES. All notices or other communications required or
provided to be sent by either party shall be in writing and shall be sent by:
(a) United States Postal Service, certified mail, return receipt requested, (b)
any nationally known overnight delivery service for next day delivery, (c)
delivery in person or (d) facsimile. All notices shall be deemed to have been
given upon receipt or refusal of delivery, whichever first occurs. All notices
shall be addressed to the parties at the addresses below:
To the Meditrust Entities: c/o Meditrust Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
c/o Meditrust Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
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with a copy to: ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish, LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
To the Purchaser: THCI MT, LLC
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇ Capital Group
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
To the Escrow Agent: Chicago Title Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
Any address or name specified above may be changed by notice given by the
party requesting such change to the other parties hereto in accordance with this
Section 12.7. The inability to deliver notice because of a changed address of
which no notice was given as provided above, or because of rejection or other
refusal to accept any notice, shall be deemed to be the receipt of the notice as
of the date of such inability to deliver or rejection or refusal to accept. Any
notice to be given by any party hereto may be given by the counsel for such
party.
SECTION 12.8. THIRD PARTIES. Nothing in this Agreement, whether express or
implied is intended to confer any rights or remedies under or by reason of this
Agreement on any Persons other than the parties hereto and their respective
legal representatives, successors and permitted assigns. No Person, other than
the Purchaser, the Meditrust Entities and the Escrow Agent may rely hereon or
derive any benefit hereby as a third party beneficiary or otherwise.
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SECTION 12.9. TIME PERIODS. Any reference in this Agreement to the time for
the performance of obligations or elapsed time shall mean consecutive calendar
days, months, or years, as applicable. In the event the time for performance of
any obligation hereunder expires on a day that is not a Business Day, the time
for performance shall be extended to the next Business Day.
SECTION 12.10. MODIFICATION OF AGREEMENT. No modification of this Agreement
shall be deemed effective unless in writing and signed by the Meditrust Entities
and the Purchaser and acknowledged by the Escrow Agent; and the parties hereto
waive all rights to claim that this Agreement has been modified as a consequence
of any oral understanding or any course of conduct.
SECTION 12.11. FURTHER ASSURANCES. From time to time before or after the
Closing, at no additional consideration, the parties hereto each agree that they
will promptly, upon the request of any other party hereto, (a) execute and
deliver (to any other party hereto or to the Escrow Agent, as may be
appropriate) all further instruments and (b) perform (or cause the performance
of) any other acts, in each instance, that may reasonably requested or
appropriate to evidence or give effect to the provisions of this Agreement and
which are consistent with the provisions of this Agreement (including, without
limitation, providing each other with such access to their books and records as
may be necessary to prepare and file the Returns). The provisions of this
Section 12.11 shall survive the Closing.
SECTION 12.12. DESCRIPTIVE HEADINGS; WORD MEANING. The descriptive headings
of the paragraphs of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any provisions of this
Agreement. Words such as "herein", "hereinafter", "hereof" and "hereunder" when
used in reference to this Agreement, refer to this Agreement as a whole and not
merely to a subdivision in which such words appear, unless the context otherwise
requires. The singular shall include the plural and the masculine gender shall
include the feminine and neuter, and vice versa, unless the context otherwise
requires. The word "including" shall not be restrictive and shall be interpreted
as if followed by the words "without limitation."
The term "material" when used in reference to any quantifiable and
measurable obligation, liability, expense, asset, property, debt, claim or
right, means an obligation, liability, expense, asset, property, debt, claim or
right having a value, impact or likely impact in excess of ONE HUNDRED THOUSAND
DOLLARS ($100,000) or any aggregation of the foregoing having a value in excess
of ONE MILLION DOLLARS ($1,000,000).
References in this Agreement to the Closing Date shall be deemed, in each
instance, to refer to the Closing Date as the same may be extended hereunder.
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SECTION 12.13. TIME OF THE ESSENCE. Time is of the essence of this
Agreement and all covenants and deadlines hereunder. Without limiting the
foregoing, the Purchaser and the Meditrust Entities hereby confirm their
intention and agreement that time shall be of the essence of each and every
provision of this Agreement, notwithstanding any subsequent modification or
extension of any date or time period that is provided for under this Agreement.
The agreement of the Purchaser and the Meditrust Entities that time is of the
essence of each and every provision of this Agreement shall not be waived or
modified by any conduct of the parties and may only be modified or waived by the
express written agreement of the Purchaser and the Meditrust Entities.
SECTION 12.14. CONSTRUCTION OF AGREEMENT. This Agreement shall not be
construed more strictly against one party than against the other merely by
virtue of the fact that it may have been prepared primarily by counsel for one
of the parties, it being recognized that both the Purchaser and the Sellers have
contributed substantially and materially to the preparation of this Agreement.
SECTION 12.15. JOINT AND SEVERAL LIABILITY OF THE MEDITRUST PARTIES.
Notwithstanding anything to the contrary in this Agreement, (a) the Purchaser's
recourse against the Meditrust Parties under this Agreement or any agreement,
document, certificate or instrument delivered by any Meditrust Party hereunder,
or under any law, rule or regulation relating to the Properties, shall be a
joint and several liability of the Meditrust Parties and (b) in no event shall
any of the Seller Parties have any personal liability hereunder except to the
extent any Seller Party actually receives any proceeds of such sale. The
acceptance of the Meditrust Documents shall constitute full performance of all
of the Meditrust Parties' obligations hereunder other than those obligations of
the Meditrust Parties that, by the express terms hereof, are to survive the
Closing.
SECTION 12.16. SEVERABILITY. The parties hereto intend and believe that
each provision in this Agreement comports with all applicable local, state and
federal laws and judicial decisions. If, however, any provision in this
Agreement is found by a court of law to be in violation of any applicable local,
state, or federal law, statute, ordinance, administrative or judicial decision,
or public policy, or if in any other respect such a court declares any such
provision to be illegal, invalid, unlawful, void or unenforceable as written,
then it is the intent of all parties hereto that, consistent with and with a
view towards preserving the economic and legal arrangements among the parties
hereto as expressed in this Agreement, such provision shall be given force and
effect to the fullest possible extent, and that the remainder of this Agreement
shall be construed as if such illegal, invalid, unlawful, void, or unenforceable
provision were not contained herein, and that the rights, obligations, and
interests of the parties under the remainder of this Agreement shall continue in
full force and effect.
SECTION 12.17. NO RECORDING. Neither the Purchaser nor its agents or
representatives shall record or file this Agreement or any notice or memorandum
hereof in any public records.
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If the Purchaser breaches the foregoing provision, this Agreement shall, at the
Sellers' election, terminate, and the Sellers shall retain the Deposit in
accordance with Section 11.2. The Purchaser hereby irrevocably appoints each
Seller as its true and lawful attorney-in-fact, coupled with an interest, solely
for the purpose of executing and recording such documents and performing such
other acts as may be necessary to terminate any recording or filing of this
Agreement in violation of this Section.
SECTION 12.18. NO IMPLIED AGREEMENT. Neither the Meditrust Entities nor the
Purchaser shall have any obligations in connection with the transaction
contemplated by this Agreement unless the Meditrust Entities and the Purchaser,
each acting in its sole discretion, elect to execute and deliver this Agreement
to the other party. No correspondence, course of dealing or submission of drafts
or final versions of this Agreement between the Meditrust Entities and the
Purchaser shall be deemed to create any binding obligations in connection with
the transaction contemplated hereby, and no contract or obligation on the part
of the Meditrust Entities or the Purchaser shall arise unless and until this
Agreement is fully executed by both the Meditrust Entities and the Purchaser.
Once executed and delivered by the Meditrust Entities and the Purchaser, this
Agreement shall be binding upon them notwithstanding the failure of Escrow Agent
to execute this Agreement.
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IN WITNESS WHEREOF, the Meditrust Entities and the Purchaser hereto have
executed this Agreement as of the date first written above.
MEDITRUST ENTITIES:
MEDITRUST CORPORATION, a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Operating Officer
MEDITRUST HEALTHCARE CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Operating Officer
MEDITRUST OF MASSACHUSETTS,
a Massachusetts business trust
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Operating Officer
MEDITRUST OF BEDFORD, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Operating Officer
SAN ▇▇▇▇▇▇▇ HEALTH CARE ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited partnership
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By: MEDITRUST OF CALIFORNIA, INC., a Delaware
corporation, its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Operating Officer
MEDITRUST MORTGAGE INVESTMENTS, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Operating Officer
NEW MEDITRUST COMPANY LLC, a Delaware
limited liability company
By: MEDITRUST HEALTHCARE CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Operating Officer
PURCHASER:
THCI MT, LLC, a Delaware limited liability
company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Signatory
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RECEIPT BY THE ESCROW AGENT
This Agreement, fully executed by both the Meditrust Entities and the
Purchaser, has been received by the Escrow Agent this ____ day of December, 2000
and by execution hereof, Escrow Agent hereby covenants and agrees to be bound by
the terms of this Agreement that are applicable to it
ESCROW AGENT
CHICAGO TITLE INSURANCE COMPANY
By:
-----------------------------------------
Name:
Title:
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