EXHIBIT 10.26
AMENDED AND RESTATED HRP SHARES
PLEDGE AGREEMENT
THIS AMENDED AND RESTATED HRP SHARES PLEDGE AGREEMENT made as of June
30, 1992, (this "Agreement") between AMS PROPERTIES, INC., a Delaware
corporation having its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (the, "Pledgor") and HEALTH AND REHABILITATION
PROPERTIES TRUST, a Maryland real estate investment trust having a principal
address at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("HRP"), as pledgee
(in such capacity, together with its successors and assigns, the "Pledgee").
WITNESSETH:
WHEREAS, pursuant to an Acquisition Agreement, Agreement to Lease and
Mortgage Loan Agreement dated as of December 28, 1990 (as the same may be
amended, modified or supplemented from time to time, the "AMS Acquisition
Agreement") among American medical Services, Inc. ("AMS'), AMS Holding Co.,
GranCare, Inc. (f/k/a HostMasters, Inc.) ("GranCare"), the Pledgor and the
Pledgee, the Pledgee made a loan to the Pledgor in the sum of Fifteen Million
Dollars ($15,000,000) which loan is evidenced by a promissory note dated as of
December 28, 1990 (as the same may be amended, modified or supplemented from
time to time, the "Note") made by the Pledgor and payable to the order of the
Pledgee;
WHEREAS, pursuant to the AMS Acquisition Agreement, the Pledgee
acquired from AMS certain real and personal property more particularly described
therein (hereinafter, the "AMS Leased Properties") and, pursuant to a master
lease agreement dated as of December 28, 1990 by and between the Pledgor, as
tenant, and the Pledgee, as landlord, and the facility leases thereunder (such
master lease agreement and facility leases, as the same may be amended,
modified, or supplemented from time to time, collectively, the "AMS Lease"), the
Pledgee leased the AMS Leased Properties back to the Pledgor;
WHEREAS, in connection with the execution of the AMS Acquisition
Agreement, the Pledgor pledged One Million (1,000,000) common shares of
beneficial interest, $.0l par value, of HRP registered in the name of the
Pledgor with HRPT Advisors, Inc., a Delaware corporation ("Advisors") in trust
pursuant to the terms and conditions of that certain Voting Trust Agreement
dated as of December 28, 1990, (the "Original Voting Trust Agreement") to the
Pledgee pursuant to that certain HRP Shares Pledge Agreement dated as of
December 28, 1990 (the "Original HRP Shares Pledge Agreement"); and the Pledgor
further agreed, pursuant to the terms and conditions of the Original Voting
Trust Agreement, to deposit with Advisors in trust certain additional shares of
capital stock
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of HRP, or securities convertible into or exchangeable for capital stock of HRP,
acquired by it after the date thereof as provided therein;
WHEREAS, pursuant to a letter agreement dated April 10, 1992 (the
"Letter Agreement"), between GranCare and the Pledgee, the Pledgee agreed to
enter into a long-term lease with GCI Health Care Centers, Inc. ("GCI"), a
Delaware corporation and wholly owned subsidiary of GranCare, with respect to
certain real property, and the related improvements and personal property,
located in Arizona, California and South Dakota and more particularly described
therein pursuant to leases of even date herewith, each of which incorporates by
reference a master lease document of even date herewith by and between the
Pledgee, as landlord and GCI, as tenant (as such leases may be amended, modified
or supplemented from time to time, the "GCI Lease", and together with the AMS
Lease, the "Leases");
WHEREAS, the Pledgee has agreed to enter into the GCI Lease provided
that the Pledgor, which company is under common control with GCI and has
heretofore entered into sale-leaseback, mortgage financing and/or leasing
transactions with the Pledgee, agrees to guarantee payment and performance of
GCI's obligations to the Pledgee and to certain cross collateralization and
cross default provisions set forth in that certain Guaranty, Cross Default and
Cross Collateralization Agreement of even date herewith (the "Cross Guaranty") ;
WHEREAS, the Pledgor will materially benefit from the consummation of
the transaction described in the Letter Agreement and in furtherance thereof the
Pledgor has determined that it is in its best interests and in pursuant of its
business purposes that it induce HRP to enter into the GCI Lease by executing
and delivering this Agreement;
WHEREAS, GCI has agreed to guarantee payment and performance of the
obligations of the Pledgor to the Pledgee and to the cross collateralization and
cross default provisions of the Cross Guaranty;
WHEREAS, in furtherance of the Cross Guaranty and to induce the Pledgee
to enter into the GCI Lease, the Pledgor has agreed to amend and restate the
Original HRP Shares Pledge Agreement as provided herein to further secure the
obligations of GCI to the Pledgee; and
WHEREAS, in furtherance of the foregoing, the Pledgor and Advisors have
executed and delivered an Amended and Restated Voting Trust Agreement of even
date herewith (the Original Voting Trust Agreement, as so amended and restated,
and as the same may be further amended, modified or supplemented from time to
time,. the "Voting Trust Agreement") to provide for the incorporation by
reference of the terms and provisions of this Agreement;
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NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree that the Original HRP
Shares Pledge Agreement shall be amended and restated as follows:
1. Defined Terms. (a) Unless otherwise defined herein, for all purposes
of this Agreement the terms defined in this section shall have the following
meanings:
"AMS Transaction Documents" shall mean the "Transaction
Documents" as such term is defined in the AMS Acquisition Agreement.
"Collateral" shall mean, at any time, all of the Pledged
Shares, and all proceeds, income, profits, dividends, interest and
other payments or distributions now or hereafter made upon or with
respect thereto, including without limitation, all securities and
properties that are required to be pledged to the Pledgee pursuant to
Sections 6 and 14 hereof.
"Default" means any Event of Default and any condition or
event that with the giving of notice or lapse of time or both would
become an Event of Default.
"Event of Default" shall mean the occurrence of any one of the
following events:
(a) the Pledgor shall fail to make any payment of any
amount payable hereunder for more than ten (10) days after the
date when due; or
(b) any material representation or warranty made by
the Pledgor herein, or in any document or instrument delivered
pursuant hereto, shall prove to have been false or misleading
in any material respect when made; or
(c) the Pledgor shall default in the due observance
or performance of any of the terms, covenants or agreements
contained in Sections 4, 5, and 6 hereof; or
(d) the Pledgor shall default in the due observance
or performance of any of the terms, covenants or agreements
contained herein to be performed or observed by it relating to
other than the payment of money and not otherwise referred to
in this definition, and such default shall remain unremedied
for ten (10) days after written notice thereof from the
Pledgee; provided, however, that if such default is
susceptible of cure, but such cure cannot be accomplished with
due diligence within such period of time, and if in addition
the Pledgor commences to cure such default within ten (10)
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days after written notice thereof from the Pledgee, and
thereafter prosecutes the curing of such default with all due
diligence, such period of time shall be extended to such
period of time (not to exceed an additional fifty (50) days as
may be necessary to cure such default with all due diligence;
or
(e) the Pledgor shall have failed to extend the term
of the Voting Trust Agreement in accordance with Section 12
thereof prior to two years before the end of the then term of
such Voting Trust Agreement; or
(f) any Event of Default, as defined in any
Transaction Document, shall have occurred.
"GCI Transaction Documents" shall mean the "Transaction
Documents" as such term is defined in the GCI Acquisition Agreement.
"Lien" shall mean, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in
respect of such asset.
"Net Income" shall mean, for any period during which the
amount thereof is to be determined for a specified Person, the net
income (or net deficit, if a negative figure) of such Person for such
period (taken as a cumulative whole, if such period shall include more
than one fiscal period, with deficits netted against net income)
determined in accordance with generally accepted accounting principles
consistently applied, exclusive of the write-up of any assets.
"Obligations" shall mean the payment and performance of each
and every obligation, joint or several, now existing or hereafter
incurred, and whether contingent, non-contingent, liquidated,
unliquidated, matured or unmatured, or otherwise, of each of the
Pledgor and GCI to the Pledgee, under any and all documents, agreements
and instruments by, between or among any such entity with, to or for
the benefit of the Pledgee, whether now existing or hereafter arising,
and, including, without limitation, (a) payment and performance of the
Original Obligations, (b) payment and performance of each and every
obligation and liability of the Pledgor to the Pledgee under this
Agreement, (c) payment and performance of each and every obligation and
liability of GCI to the Pledgee under the GCI Lease, including, without
limitation, the payment of Minimum Rent, Additional Rent and Additional
Charges (as such terms are defined in the GCI Lease), (d) payment and
performance of each and every obligation and liability of GranCare in
respect of the Leases and under each and every other Transaction
Document to which it is a party or by which it is bound, and (d)
payment and performance of each and every other obligation of the
Pledgor or GCI to the Pledgee under any Transaction Document.
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"Original Obligations" shall mean the payment and performance
of each and every obligation and liability (i) of the Pledgor to the
Pledgee under this Agreement, (ii) of the Pledgor to the Pledgee, under
the AMS Note, the AMS Lease or under any of the other AMS Transaction
Documents, including, without limitation, payment of the principal of
the AMS Note, the Prepayment Fee (as defined in the AMS Note) and all
interest (including Minimum Interest and Additional Interest, as such
terms are defined in the AMS Note) under the AMS Note, and the payment
of Minimum Rent, Additional Rent and Additional Charges (as such terms
are defined in the AMS Lease) under the Lease, and (iii) of all other
obligations of the Pledgor, GCI or GranCare to the Pledgee, whether now
existing or hereafter arising, whether direct or indirect, absolute or
contingent, due or to become due.
"Operating Cash Flow" shall mean, for any period during which
the amount thereof is to be determined for a specified Person, the Net
Income of such Person for such period, plus, to the extent deducted in
determining Net Income for such fiscal period, the sum of (a)
depreciation and amortization, (b) all interest on Indebtedness of the
Pledgor (including, for AMS, all amounts payable as Minimum Interest
and Additional Interest under the AMS Note) and all rent payable under
any leases of real or personal property (including all amounts payable
as Minimum Rent and Additional Rent under the applicable Leases) and
(c) provisions for taxes based upon or measured by income.
"Person" shall mean an individual, a corporation, a general or
limited partnership, a stock company or association, a joint venture,
an unincorporated association, a company, a trust, a bank, a trust
company, a land trust, a business trust, or any other entity, and any
government, agency, or political subdivision thereof.
"Pledged Shares" shall mean the One Million (1,000,000) common
shares of beneficial interest, $.0l par value, of HRP registered in the
name of the Pledgor, and any other evidence of ownership thereof,
including, without limitation, any and all Voting Trust Certificates
issued to the Pledgor under the Voting Trust Agreement and representing
the beneficial interest in such shares.
"Transaction Documents" shall mean, collectively, the AMS
Transaction Documuments.
"UCC" shall mean the Uniform Commercial Code as from time to
time in effect in The Commonwealth of Massachusetts; provided, that if
by reason of mandatory provisions of law, the perfection or the effect
of perfection or nonperfection of any security interest created
hereunder is governed by the Uniform Commercial Code as in effect in a
jurisdiction other
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than The Commonwealth of Massachusetts, "UCC" shall mean the Uniform
Commercial Code as in effect in such other jurisdiction for purposes of
the provisions hereof relating to such perfection or effect of
perfection or nonperfection.
(b) References in this Agreement to "herein," "hereof" and "hereunder"
shall be deemed to refer to this Agreement and shall not be limited to the
particular text or Section in which such words appear. References in this
Agreement to the Pledgee's attorneys shall be deemed to include, without
limitation, special counsel and local counsel for the Pledgee. The use of any
gender shall include all genders and the singular number shall include the
plural and vice versa as the context may require.
2. Voting Trust Agreement. The Pledgor and the Pledgee hereby
acknowledge that the Pledged Shares have heretofore been deposited by the
Pledgor, in trust, with Advisors pursuant to the terms and conditions of the
Voting Trust Agreement; that the Pledged Shares have been registered in the name
of Advisors, as Trustee under the Voting Trust Agreement; that Advisors, as
Trustee, has issued Voting Trust Certificates to the Pledgor representing the
beneficial interest in the Pledged Shares; and that upon the occurrence or an
Event of Default the Pledgee has the right to deliver to Advisors, as Trustee
under the Voting Trust Agreement, any and all Voting Trust Certificates held by
it in pledge hereunder and to receive from Advisors stock certificates for
shares held by Advisors in an amount equal to the number of shares the
beneficial interest in which is represented by the Voting Trust Certificates
surrendered.
3. Pledge. The Pledgor hereby reaffirms and renews its pledge, grant of
a security interest in, assignment, transfer, delivery, set over and
confirmation unto the Pledgee of all of the Pledgor's right, title and interest
in and to the Collateral, together with the certificates representing or
evidencing the Pledged Shares, with stock powers attached duly endorsed in
blank, as security for the full and prompt payment and performance of the
Obligations.
4. Representations and Warranties. The Pledgor represents and warrants
(a) that there are no contractual restrictions upon the transfer of the
Collateral and that the Pledgor has good and valid title to the Pledged Shares
owned by such Pledgor free and clear of any Liens; (b) that this Agreement and
the delivery of the Pledged Shares to the Pledgee creates a valid and perfected
security interest in the Collateral, subject to no prior Lien; and (c) that no
consents or approvals of, or filings with any governmental body, agency or
official are required for the validity or enforceability of this Agreement
(except as may be required in connection with any disposition of the Collateral
by the Pledgee under laws affecting the offer and sale of securities generally)
or for the perfection of the security interests created under this Agreement in
the Collateral.
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5. Covenants. The Pledgor covenants and agrees that the Pledgor (i)
shall not, other than as contemplated under the Amended and Restated Voting
Trust Agreement, sell, assign, exchange, or otherwise transfer or grant any
option with respect to any of the Pledgor's rights to the Collateral, (ii) shall
not create or suffer to exist any Lien against, in or with respect to any of the
Collateral and the security interest thereon conveyed to the Pledgee by this
Agreement, and shall defend the Pledgee's interest in the collateral against the
claims of all Persons and (iii) shall not either knowingly or negligently (with
or without knowledge) take any action which would in any manner impair. the
value of the Collateral.
6. Stock Dividends; Reorqanizations. In the event of any one or more
reclassifications, changes, exchanges stock splits, stock dividends, stock
consolidations, or other subdivisions or combinations of the shares of any class
of HRP's capital stock or of any immediate or remote successor to substantially
all of HRP's business or assets pursuant to any one or more of the events
described in this sentence, or the consolidation of HRP or any such successor
with, or merger of HRP or any such successor into, other corporations, or other
recapitalizations or reorganizations affecting HRP or any such successor, or any
one or more sales or conveyances to another corporation of HRP's or any such
successor's property as an entirety or substantially as an entirety (a
"Reorqanization"), the Pledgor shall pledge as collateral hereunder all
securities and property which come to the Pledgor as a result of that and
subsequent Reorganizations, except for securities and property surrendered or
canceled pursuant to any of same, along with appropriate stock transfer powers
duly endorsed in blank, and all other instruments the Pledgee may deem necessary
or desirable to vest or confirm title to same or facilitate foreclosure,
assignment, sale or other transfer thereof. Such securities and property shall
stand pledged and assigned in the same manner as the property described in
Section 2 hereof and the term "Collateral" shall include such securities and
property.
7. Voting Power, Dividends, Etc. The Pledgor agrees that for so long as
this Agreement remains in effect (i) the Pledgee may, at any time in its
discretion, register the Pledged Shares in its own name or in the name of its
nominee; (ii) the Pledgee or its nominee shall have the right to vote and
exercise all consensual and other powers of ownership pertaining to the
Collateral in such manner as the Pledgee in its sole and absolute discretion may
deem necessary, appropriate or advisable, and, if the Pledgee so requests in
writing, the Pledgor shall execute and deliver to the Pledgee or its nominee
such additional authorizations, proxies, dividends and such other documents as
the Pledgee may reasonably request to secure to the Pledgee or its nominee the
rights, powers and authorities intended to be conferred upon Pledgee or such
nominee by this Section; and (iii) all dividends and other distributions on the
Collateral shall be paid directly to the Pledgee or its nominee and shall be
applied
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by the Pledgee, or such nominee following receipt thereof, to the payment of the
Obligations in such order as the Pledgee may, in its discretion, select.
8. Sale of Collateral After an Event of Default. Upon the occurrence of
any Event of Default, then, at the Pledgee's option, the Pledgee may apply the
cash, if any, then held by it as collateral hereunder, for the purposes and in
the manner provided in Section 9 hereof, or if there shall be no such cash or
the cash so applied shall be insufficient to make in full all payments provided
in subsections (a) and (b) of Section 9 hereof, the Pledgee may, in addition to
any rights and remedies the Pledgee may otherwise have as a secured party under
the UCC or otherwise, and without further demand, advertisement or notice
(except as expressly provided for in subsection (a) of this Section 8), and in
any manner necessary to comply with the applicable requirements of the Internal
Revenue Code concerning real estate investment trusts:
(a) elect to sell the Collateral, or any part thereof, in one
or more sales, at public or private sale, conducted by any officer or
agent of, or auctioneer or attorney for, the Pledgee, at the Pledgee's
place of business or elsewhere, for cash or on credit, and at such
reasonable price or prices as the Pledgee shall determine, and the
Pledgee may be the purchaser of any or all of the Collateral so sold.
The Pledgee may, in its reasonable discretion, at any such sale
restrict the prospective bidders or purchasers as to their number,
nature of business and investment intention, including, without
limitation, a requirement that the Persons making such purchases
represent and agree to the satisfaction of the Pledgee that they are
purchasing the Collateral for their account, for investment, and not
with a view to the distribution or resale of any thereof. Upon any such
sale the Pledgee shall have the right to deliver, assign and transfer
the Collateral so sold directly to the purchaser thereof. Each
purchaser (including the Pledgee) at any such sale shall hold the
Collateral so sold, absolutely free from any claim or right of whatever
kind, including, without limitation, any equity or right of redemption,
of the Pledgor, which the Pledgor hereby specifically waives, to the
extent the Pledgor may lawfully do so, and all rights of redemption,
stay or appraisal which the Pledgor has or may have under any rule of
law or statute now existing or hereafter adopted. The Pledgee shall
give the Pledgor at least ten (10) days' written notice (which shall
constitute reasonable notice) of any public or private sale and shall
state the time and place fixed for such sale. Any such public sale
shall be held at such time or times within ordinary business hours as
the Pledgee shall fix in the notice of such sale. At any such sale the
Collateral may-be sold in one lot as an entirety or in separate lots.
The Pledgee shall not be obligated to make any sale pursuant to any
such notice. The Pledgee, without notice or publication,
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may adjourn any public or private sale from time to time by
announcement at the time and place fixed for such sale, or any
adjournment thereof, and any such sale may be made at any time or place
to which the same may be so adjourned without further notice or
publication. In case of any sale of all or any part of the Collateral
on credit, the Collateral so sold may be retained by the Pledgee until
the selling price is paid by the purchaser thereof, but the Pledgee
shall not incur any liability in case of the failure of such purchaser
to take up and pay for the Collateral so sold, and in case of any such
failure, such Collateral may again be sold under and pursuant to the
provisions hereof; or
(b) proceed by a suit or suits at law or in equity to
foreclose upon the pledge created under this Agreement and sell the
Collateral, or any portion thereof, under a judgment or decree of a
court or courts of competent jurisdiction.
The Pledgee, as attorney in fact pursuant to Section 11 hereof may, in
the name and stead of the Pledgor, make and execute all conveyances, assignments
and transfers of the Collateral sold pursuant to subsection (a) or (b) of this
Section 8. If so requested by the Pledgee, the Pledgor shall ratify and confirm
any sale or sales by executing and delivering to the Pledgee or to such
purchaser or purchasers, all such instruments as may, in the judgment of the
Pledgee, be reasonably necessary or appropriate for such purpose.
The receipt of the Pledgee for the purchase money paid at any such sale
made by it shall be a sufficient discharge therefor to any purchaser of the
Collateral, or any portion thereof, sold as aforesaid; and no such purchaser (or
his or its representatives or assigns), after paying such purchase money and
receiving such receipt, shall be bound to see to the application of such
purchase money or any part thereof or in any manner whatsoever be answerable for
any loss, misapplication or nonapplication of any such purchase money, or any
part thereof, or be bound to inquire as to the authorization, necessity,
expediency or regularity of any such sale.
9. Application of Proceeds. The proceeds of any sale, or of collection,
of all or any part of the Collateral shall be applied by the Pledgee, without
any marshaling of assets, towards payment of the items immediately set forth
below in the following order:
(a) all costs and expenses of such sale, including, without
limitation, reason able compe nsation to the Pledge e and its agents,
attorne ys and counse l, and all other reason able expens es, liabiliti
es and advanc es made or incurre d by the Pledge e in connec tion
therewi th; and
(b) the Obligations (in such order as the Pledgee shall
determine); after which, any surplus from such proceeds shall
be paid to the Pledgor or to whomever may be lawfully entitled to
receive the same or as a court of competent jurisdiction may direct.
10. Obligations with Respect to Collateral. Except as specifically
provided herein in the Amended and Restated Voting Trust Agreement, the Pledgee
shall have no duty as to the collection or protection of the Collateral or any
income thereon, nor as to the preservation of any rights pertaining thereto
beyond the safe custody thereof. The Pledgee may exercise its rights with
respect to the Collateral without resorting or regard to other security or
sources of reimbursement.
11. The Pledgee Appointed Attorney in Fact; Indemnity. The Pledgee is
hereby appointed the attorney-in-fact, with full power of substitution, of the
Pledgor for the purpose of carrying out the provisions of this Agreement (incl
the provisions of Section 8 hereof) and taking any action and executing any
instruments which such attorney-in-fact may deem necessary or advisable to
accomplish the purposes hereof. This power of attorney, being coupled with an
interest, shall be irrevocable until all of the Obligations have been fully paid
and performed. The power of attorney conferred on the Pledgee pursuant to the
provisions of this Section 11 is provided solely to protect the interests of the
Pledgee and shall not impose any duty on the Pledgee to exercise any such power,
and neither the Pledgee nor such attorney-in-fact shall be liable for any act,
omission, error in judgment or mistake of law, except as the same may result
from its gross negligence or willful misconduct. The Pledgor shall and hereby
agrees to indemnify and save harmless Pledgee for, from and against any and all
liability or damage which it may incur, in good faith and without gross
negligence or willful misconduct, in the exercise and performance of any of the
Pledgee's powers and duties specifically set forth herein.
12. No Waiver; Cumulative Remedies. The Pledgee shall not by any act
(except t)y a written instrument in accordance with Section 16 hereof), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default or in any
breach of any of the terms and conditions hereof. No failure to exercise, nor
any delay in exercising, on the part of the Pledgee, any right, power or
privilege hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
A waiver by the Pledgee of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which the Pledgee would
otherwise have on any future occasion. The rights and remedies herein provided
are cumulative, may be exercised singly or concurrently and are not exclusive of
any rights or remedies provided by law.
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13. Termination of Pledge. This Agreement and the pledge made hereby
shall remain in effect until all of the Obligations have been paid and satisfied
in full, and all terms and conditions of the Transaction Documents have been
satisfied in full and shall have expired by their terms. The Pledgee shall
thereupon assign, transfer and deliver to the Pledgor without representation,
warranty or recourse, against appropriate receipts, all the Collateral, if any,
then held by it in pledge hereunder.
14. Partial Release; Re-pledge.
(a) Subject to the provisions of paragraph (b) below, the Pledgee
agrees to release to the Pledgor fifty percent (50%) of the Pledged Shares from
the lien created by this Agreement at the written request (and at the expense)
of the Pledgor, without recourse, representation or warranty of any kind,
following the occurrence of the Release Date (as hereinafter defined). The term
"Release Date" shall mean the date on which all of the following conditions
exist:
(1) for the most recently completed fiscal year of the
Pledgor, the Operating Cash Flow of the Pledgor shall have been greater
than Two Hundred Percent (200%) of the sum of (a) all rent payable
under the AMS Lease (including amounts payable as Minimum Rent and
Additional Rent thereunder) during such fiscal year and (b) all
payments of principal and interest under the AMS Note (including
amounts payable as Minimum Interest and Additional Interest thereunder)
during such fiscal year, as shown in the financial statements and
accompanying certificates of AMS required to be delivered pursuant to
the AMS Acquisition Agreement;
(2) for the most recently completed fiscal year of GCI, GCI
shall have achieved a ratio of Operating Cash Flow to rent payable
under the GCI Lease (including amounts payable as Minimum Rent and
Additional Rent thereunder) of 2 to 1, as shown in the Consolidated
Financials and accompanying certificates of GCI required to be
delivered pursuant to Section 18.2(b) of the GCI Lease;
(3) no Default or Event of Default shall have occurred and be
continuing;
(4) the Pledgee shall have received a certificate signed by a
Responsible Officer of the Pledgor certifying that the conditions
described in clauses (91) and (3) above have been met; and
(5) the Pledgee shall have received a certificate signed by a
Responsible Officer of GCI certifying that the conditions described in
clauses (2) and (3) above have been met.
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Any Pledged Shares released as provided above shall be subject to
re-pledging upon the terms set forth in paragraph (b) below.
(b) If at any time subsequent to the Release Date,
(i) the Operating Cash Flow of the Pledgor for any fiscal
quarter of the Pledgor ending after the Release Date shall be less than
One Hundred Fifty percent (150%) of the sum of (a) all rent payable
under the AMS Lease (including amounts payable as Minimum Rent and
Additional Rent thereunder but excluding amounts payable as Additional
Charges thereunder) during such fiscal quarter and (b) all payments of
principal and interest under the AMS Note (including amounts payable as
Minimum Interest and Additional Interest thereunder) during such fiscal
quarter;
(ii) the Operating Cash Flow of the Pledgor for any fiscal
year of the Pledgor ending after the Release Date shall be less than
Two Hundred percent (200%) of the sum of (a) all rent payable under the
AMS Lease (including amounts payable as Minimum Rent and Additional
Rent thereunder but excluding amounts payable as Additional Charges
thereunder) during such fiscal year and (b) all payments of principal
and interest under the AMS Note (including amounts payable as Minimum
Interest and Additional Interest thereunder but excluding amounts
payable as Additional Charges thereunder) during such fiscal year;
(iii) the Operating Cash Flow of GCI for any fiscal quarter of
GCI ending after the Release Date shall be less than One Hundred Fifty
percent (150%) of all rent payable under the GCI Lease (including
amounts payable as Minimum Rent and Additional Rent thereunder but
excluding amounts payable as Additional Charges thereunder) during such
fiscal quarter; or
(iv) the Operating Cash Flow of GCI for any fiscal year of GCI
ending after the Release Date shall be less than Two Hundred percent
(200%) of all rent payable under the GCI Lease (including amounts
payable as Minimum Rent and Additional Rent thereunder but excluding
amounts payable as Additional Charges thereunder) during such fiscal
year;
in each case as reflected in the audited financial statements and
accompanying certificates of AMS or GCI, as the case may be, required
to be delivered pursuant to the applicable Transaction Documents,
the Pledgor (or, if the released Pledged Shares shall have been transferred in
accordance with paragraph (b) hereof, the then , owner of such Pledged Shares)
shall, within ten (10) business days following the request of the Pledgee,
either (x) pledge to the Pledgee, as collateral hereunder, free and clear of all
Liens of
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any kind, the Pledged Shares that were released pursuant to paragraph (b) above,
along with appropriate stock transfer powers duly endorsed in blank and all
other instruments the Pledgee may deem necessary or desirable to effect and
perfect such pledge (which Pledged Shares shall stand pledged and assigned in
the same manner as the property described in Section 2 hereof and the terms
"Collateral" and "Pledged Shares" it shall include such Pledged Shares) or (y)
pay-5-,000,000 to the Pledgee to be held by it as collateral for the Obligations
pursuant to the terms of a cash collateral agreement executed by the Pledgor (or
such then owner of the Pledged Shares) in form and substance acceptable to the
Pledgee.
14. Further Assurances. At any time and from time to time, upon request
by the Pledgee, the Pledgor shall promptly make, execute and deliver, or cause
to be made, executed and delivered, to the Pledgee and, where appropriate, cause
to be recorded and/or filed (and from time to time thereafter to be rerecorded
and/or refiled) at such time and in such offices and places as shall be deemed
necessary or desirable by the Pledgee, in its discretion, any and all such other
and further amendments, assignments, instruments of further assurance,
certificates and other documents as the Pledgee may, in its discretion, deem
necessary or desirable to (i) enable the Pledgee to negotiate the AMS Note and
to assign the AMS Lease, the GCI Lease or the other Transaction Documents,
and/or (ii) effectuate, complete, or perfect, or to continue and preserve the
obligations of the Pledgor under this Agreement.
15. Notices, Etc. Any notice, request, demand, statement or consent
desired or required to be given hereunder shall be in writing and shall be
delivered by hand, sent by certified mail, return receipt requested, sent by a
nationally recognized commercial overnight delivery service with provisions for
a receipt, postage or delivery charges prepaid, or sent by facsimile
transmission, and shall be deemed given (a) when actually delivered, if
delivered by hand, (b) upon receipt, if sent by certified mail, (c) the next
Business Day after being placed in the possession of an overnight delivery
service, if sent by an overnight delivery service or (d) if sent by facsimile
transmission, when electronic indication of receipt is received, and shall be
addressed as follows:
If to the Pledgor: AMS Properties, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
With a copy to: ▇▇▇▇▇▇▇ & ▇▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇, Esq.
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If to the Pledgee: Health and Rehabilitation Properties Trust
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
In each case
with copies to: ▇▇▇▇▇▇▇▇ & Worcester
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
or at such other place as any party hereto may from time to time hereafter
designate to the other in writing. Any notice given to the Pledgor from the
Pledgee shall not imply that such notice or any further or similar notice was or
is required.
16. Amendments and Modifications. This Agreement and the other
Transaction Documents set forth the entire agreement of the parties with respect
to the subject matter hereof and may not be amended, modified, revised or
terminated except by an agreement in writing signed by the party against whom
enforcement is sought. The provisions of this Agreement shall extend and be
applicable to all renewals, replacements, amendments, extensions, substitutions,
revisions, consolidations and modifications of the Transaction Documents, and
any and all references herein to any Transaction Document shall be deemed to
include any such renewals, replacements, amendments, substitutions, revisions,
extensions, consolidations or modifications thereof.
17. Invalidity. If any provision of this Agreement or the application
thereof to any Person or circumstance, for any reason and to any extent, shall
be held to be invalid or unenforceable, neither the remainder of this Agreement
nor the application of such provision to any other Person or circumstance shall
be affected thereby, but rather the same shall be enforced to the greatest
extent permitted by law.
18. Successors and Assigns. The provisions of this Agreement shall be
binding on the Pledgor and its respective heirs, executors, administrators,
legal representatives, successors and assigns and this Agreement and all of the
covenants herein contained shall inure to the benefit of the Pledgee and the
Pledgee's successors and assigns.
19. Captions and Headings. The captions and headings set forth in this
Agreement are included for convenience and reference only and the words
contained therein shall in no way be held or deemed to define, limit, describe,
explain, modify, amplify and/or add to the interpretation, construction or
meaning of, or the scope or intent of, this Agreement or any part hereof.
20. NONLIABILITY OF TRUSTEES. THE DECLARATION OF TRUST ESTABLISHING
PLEDGEE, DATED OCTOBER 9, 1986, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS
THERETO (THE "DECLARATION"), IS DULY
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FILED WITH THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND,
PROVIDES THAT THE NAME "HEALTH AND REHABILITATION PROPERTIES TRUST" REFERS TO
THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS TRUSTEES, BUT NOT
INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE
OR AGENT OF PLEDGEE SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR
SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, PLEDGEE. ALL PERSONS DEALING
WITH PLEDGEE, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF PLEDGEE FOR THE
PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
21. GOVERNING LAW. EXCEPT AS TO MATTERS REGARDING THE INTERNAL AFFAIRS OF HRP
AND ISSUES OF OR LIMITATIONS ON ANY PERSONAL LIABILITY OF THE SHAREHOLDERS AND
TRUSTEES OF HRP FOR OBLIGATIONS OF HRP, AS TO WHICH THE LAWS OF THE STATE OF
MARYLAND SHALL GOVERN, THIS AGREEMENT AND ANY OTHER INSTRUMENTS EXECUTED AND
DELIVERED TO EVIDENCE, COMPLETE, OR PERFECT THE TRANSACTIONS CONTEMPLATED HEREBY
WILL BE INTERPRETED, CONSTRUED, APPLIED AND ENFORCED IN ACCORDANCE WITH THE LAWS
(OTHER THAN THE LAWS GOVERNING CONFLICTS OF LAWS) OF THE COMMONWEALTH OF
MASSACHUSETTS.
[Intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal on the day and year first above written.
WITNESS: Pledgor: AMS PROPERTIES, INC.,
a Delaware corporation
/s/ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
WITNESS: Pledgee: HEALTH AND REHABILITATION
PROPERTIES TRUST,
a Maryland real estate
investment trust
/s/ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Treasurer
Signature page to Amended and Restated HRP Shares Pledge Agreement date as of
June 30, 1992.