EXHIBIT 2.5
PURCHASE AND SALE AGREEMENT
BY AND AMONG
THE PURCHASERS LISTED UPON THE SIGNATURE PAGE HEREOF,
AS PURCHASERS,
and
THE SELLERS LISTED UPON THE SIGNATURE PAGE HEREOF,
AS SELLERS
November 19, 2004
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT is made as of the 19th day of November,
2004, by and among (i) each of the parties identified on the signature page
hereof as purchaser, as purchasers (each a "PURCHASER" and, collectively, the
"PURCHASERS"), and (ii) each of the parties identified on the signature page
hereof as seller, as sellers (each a "SELLER" and, collectively, the "SELLERS").
WITNESSETH:
WHEREAS, each Seller (this and other capitalized terms used and not
otherwise defined herein shall have the meanings given such terms in SECTION 1),
is the owner of the Property of such Seller as more fully set forth herein; and
WHEREAS, the Purchasers desire to purchase all of the Properties from the
Sellers, and the Sellers are willing to sell all of the Properties to the
Purchasers, subject to and upon the terms and conditions hereof;
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, the mutual receipt and legal
sufficiency of which are hereby acknowledged, each Seller and Purchaser hereby
agree as follows:
SECTION I DEFINITIONS
Capitalized terms used in this Agreement shall have the meanings set forth
below or in the section of this Agreement referred to below:
1.1 "AFFILIATE" shall mean, with respect to any Person, any Person
directly or indirectly controlling, controlled by, or under common control with
such Person.
1.2 "AGREEMENT" shall mean this Purchase and Sale Agreement, together with
EXHIBITS A-D attached hereto, as it and they may be amended from time to time as
herein provided.
1.3 "BUSINESS DAY" shall mean any day other than a Saturday, Sunday or any
other day on which banking institutions in The Commonwealth of Massachusetts are
authorized by law or executive action to close.
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1.4 "CLOSING" shall have the meaning given such term in SECTION 2.2.
1.5 "CLOSING DATE" shall have the meaning given such term in SECTION 2.2.
1.6 "CONTRACTS" shall mean, with respect to any Property, collectively,
all contracts and agreements to which the Seller is a party (or which otherwise
relate to any Property) relating to the ownership (as opposed to the operation)
of such Property; provided, however, in no event shall the Contracts include any
Resident Agreements.
1.7 "DEBT DOCUMENTS" shall mean each and every document, instrument and
other agreement relating to the financings described in EXHIBIT B, in an
aggregate original principal amount not to exceed $36,540,000.
1.8 "EFFECTIVE TIME" shall have the meaning given such term in the Merger
Agreement.
1.9 "FACILITY" shall mean, with respect to any Property, the independent
and/or assisted living facility currently being operated on such Property.
1.10 "FIVE STAR" shall mean Five Star Quality Care, Inc., a Maryland
corporation, together with its permitted successors and assigns.
1.11 "FURNISHINGS, FIXTURES AND EQUIPMENT" shall mean, with respect to any
Property, collectively, all furniture, artwork, furnishings, fixtures and
equipment owned by the Seller.
1.12 "IMPROVEMENTS" shall mean, with respect to any Property, the existing
buildings, fixtures and other improvements situated on, or affixed to, the Land
with respect to such Property.
1.13 "INTANGIBLE PROPERTY" shall mean, with respect to any Property,
collectively, the Contracts, Warranties and transferable licenses relating to
the ownership (as opposed to the operation) of such Property.
1.14 "LAND" shall mean the parcel or parcels of land described in EXHIBITS
A-1-A-16, together with easements, rights of way, licenses and appurtenances
which the Sellers may now own or hereafter acquire with respect thereto.
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1.15 "LEASE" shall mean that certain Lease, substantially in the form
attached hereto as EXHIBIT C, which is to be executed by and among the
Purchasers and Sellers as of the date hereof, as the same may hereafter be
further amended, restated, supplemented or otherwise modified from time to time.
1.16 "MERGER AGREEMENT" shall mean the Agreement and Plan of Merger, dated
September 23, 2004, among Five Star, FVE Acquisition Inc., LTA Holdings, Inc.,
and Senior Housing Properties Trust.
1.17 "OTHER PROPERTY" shall mean, with respect to any Property, the
Furnishings, Fixtures and Equipment and Intangible Property with respect to such
Property, if any.
1.18 "PERSON" shall mean an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization.
1.19 "PERMITTED LIENS" shall have the meaning given such term in the Merger
Agreement.
1.20 "PROPERTY" shall mean, collectively, the Land, the Improvements and
the Other Property.
1.21 "PURCHASE PRICE" shall have the meaning given such term in
SECTION 2.3.
1.22 "PURCHASERS" shall have the meaning given such term in the preambles
to this Agreement, together with their permitted successors and assigns.
1.23 "RESIDENT AGREEMENTS" shall mean all resident agreements and other
agreements or arrangements for the use or occupancy of any units, beds or other
facilities provided, meals served, goods sold or services provided, in each
case, on or at the Property, or any portion thereof, or in connection with the
operation of the Facility.
1.24 "SELLERS" shall have the meaning given such term in the preambles to
this Agreement, together with their permitted successors and assigns.
1.25 "TITLE COMPANY" shall mean Lawyers Title Insurance Corporation.
1.26 "WARRANTIES" shall mean, with respect to any Property, collectively,
all assignable warranties or guaranties,
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if any, presently in effect from contractors, suppliers or manufacturers of
Furnishings, Fixtures and Equipment installed in, or used in connection with,
any of the Improvements with respect to such Property.
SECTION II PURCHASE AND SALE; CLOSING
2.1 PURCHASE AND SALE. In consideration of the payment of the Purchase
Price by the Purchasers to the Sellers and for other good and valuable
consideration, the Sellers hereby agree to sell to the Purchasers, and the
Purchasers hereby agree to purchase from the Sellers, the Properties for the
Purchase Price, subject to and in accordance with the terms and conditions of
this Agreement.
2.2 CLOSING. The purchase and sale of the Properties shall be consummated
at a closing (the "CLOSING") to be held at the offices of ▇▇▇▇▇▇▇▇ & Worcester
LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, or at such other location as
the Sellers and the Purchasers may agree, at 10:00 a.m., local time, on the date
(the "CLOSING DATE") which is one (1) Business Day after the Effective Time.
2.3 PURCHASE PRICE.
(a) The purchase price to be paid for the Properties (the "PURCHASE
PRICE") shall be Sixty-Seven Million Three Hundred Seventy Nine Thousand Dollars
($67,379,000). The Purchase Price shall be paid as follows:
(i) The Purchasers shall assume the Debt Documents, including the
aggregate principal amount not to exceed $36,540,000 at the Closing;
and
(ii) The balance shall be paid by the Purchasers to or at the direction
of the Sellers at the Closing.
(b) The Purchase Price shall be payable in immediately available federal
funds by wire transfer to an account or accounts to be designated by the
Sellers.
SECTION III CONDITIONS TO THE PURCHASER'S OBLIGATION TO CLOSE
The obligation of the Purchasers to acquire the Properties shall be subject
to the satisfaction of the following conditions precedent on and as of the
Closing Date:
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3.1 CLOSING DOCUMENTS. Each Seller shall have delivered to the proper
Purchaser the following with respect to its Property:
(a) A good and sufficient deed with covenants against grantor's acts, in
proper statutory form for recording, duly executed and acknowledged by such
Seller, conveying title to such Property, free from all liens and encumbrances
other than the Permitted Liens with respect to such Property;
(b) A ▇▇▇▇ of sale and assignment and assumption agreement, in form and
substance reasonably satisfactory to such Seller and Purchaser, duly executed
and acknowledged by such Seller and Purchaser, with respect to the assignment
and assumption of all of such Seller's right, title and interest in, to and
under the Intangible Property, the Debt Documents with respect to such Property,
and any of such Seller's Furnishings, Fixtures and Equipment with respect to
such Property (it being understood and agreed that no portion of the Purchase
Price is allocated to Furnishings, Fixtures and Equipment);
(c) To the extent the same are in any Seller's possession or control,
original, fully executed copies of all material documents and agreements, plans
and specifications and contracts, licenses and permits pertaining to such
Property;
(d) The Lease;
(e) An estoppel certificate, substantially in the form attached hereto as
EXHIBIT D, dated within thirty (30) days prior to the Closing Date, executed by
the lender and such other parties to the Debt Documents as such Purchaser may
reasonably require;
(f) An affidavit dated as of the Closing Date, in respect of Section 1445
of the Internal Revenue Code of 1986, as amended, sufficient to provide one
exemption under subdivision (b) thereof; and
(g) A parties in possession affidavit, mechanic's lien affidavit, a gap
indemnity and such other conveyance documents, certificates, deeds and other
instruments as such Purchaser or the Title Company may reasonably require.
3.2 MERGER. The merger shall have been consummated in accordance with the
terms of the Merger Agreement.
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SECTION IV CONDITIONS TO SELLERS' OBLIGATION TO CLOSE
The obligation of each Seller to convey its Property to the corresponding
Purchaser is subject to the satisfaction of the following conditions precedent
on and as of the Closing Date:
4.1 PURCHASE PRICE. Such Purchaser shall deliver to such Seller the
Purchase Price payable hereunder.
4.2 CLOSING DOCUMENTS. Such Purchaser shall have delivered to such Seller
duly executed and acknowledged counterparts of the documents described in
SECTION 4.1, where applicable.
4.3 MERGER. The merger shall have been consummated in accordance with the
terms of the Merger Agreement.
4.4 REPRESENTATIONS. All representations and warranties of such Purchaser
herein shall be true, correct and complete in all material respects on and as of
the Closing Date and such Purchaser shall have performed all covenants and
obligations required to be performed thereby on or before the Closing Date.
SECTION V REPRESENTATIONS AND WARRANTIES OF SELLER
5.1 SELLERS' REPRESENTATIONS. To induce the Purchasers to enter into this
Agreement, each Seller represents and warrants to the Purchaser of its Property
as follows:
(a) STATUS AND AUTHORITY OF THE SELLERS, ETC. Each Seller is a limited
liability company duly organized, validly existing and in good standing under
the laws of its state of formation, and has all requisite power and authority
under the laws of such state and its charter documents to enter into and perform
its obligations under this Agreement and to consummate the transactions
contemplated hereby.
(b) ACTION OF THE SELLERS, ETC. Each Seller has taken all necessary action
to authorize the execution, delivery and performance of this Agreement, and upon
the execution and delivery of any document to be delivered by such Seller on or
prior to the Closing Date, this Agreement and such document shall constitute the
valid and binding obligation and agreement of such Seller, enforceable against
such Seller in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws of
general application affecting the rights and remedies of creditors.
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(c) NO VIOLATIONS OF AGREEMENTS. Neither the execution, delivery or
performance of this Agreement by any of the Sellers, nor compliance with the
terms and provisions hereof, will result in any breach of the terms, conditions
or provisions of, or conflict with or constitute a default under, or result in
the creation of any lien, charge or encumbrance upon any of the Properties
pursuant to the terms of any indenture, mortgage, deed of trust, note, evidence
of indebtedness or any other agreement or instrument by which any of the Sellers
is bound.
(d) LITIGATION. No investigation, action or proceeding is pending and, to
the Sellers' knowledge, no action or proceeding is threatened and no
investigation looking toward such an action or proceeding has begun, which (i)
questions the validity of this Agreement or any action taken or to be taken
pursuant hereto, (ii) will result in any material adverse change in the
business, operation, affairs or condition of any of the Properties, (iii)
results in or subjects any of the Properties to a material liability, or (iv)
involves condemnation or eminent domain proceedings against any part of the
Properties.
(e) EXISTING DEBT, ETC. Other than the Debt Documents described in EXHIBIT
B, no Seller has entered into any contract or agreement with respect to the
financing of any of the Properties which will be binding on such Purchaser after
the Closing. The copies of the Debt Documents heretofore delivered by each
Seller to such Purchaser are true, correct and complete copies thereof; the Debt
Documents have not been amended except as evidenced by amendments similarly
delivered and constitute the entire agreement between the Seller and the parties
thereto. Except as otherwise set forth in EXHIBIT B: (i) to the Sellers'
knowledge, each of the Debt Documents is in full force and effect on the terms
set forth therein, there are no defaults or circumstances which with the giving
of notice, the passage of time or both would constitute a default; and (ii) no
party thereto has asserted in writing any defense to, offsets or claims against
its obligations thereunder.
(f) UTILITIES, ETC. To the Sellers' knowledge, all utilities and services
necessary for the use and operation of the Properties (including, without
limitation, road access, gas, water, electricity and telephone) are available
thereto. To the Sellers' knowledge, no fact, condition or proceeding exists
which would result in the termination or impairment of the furnishing of such
utilities to any of the Properties.
(g) COMPLIANCE WITH LAW. To the Sellers' knowledge, (i) none of the
Properties violates in any material respect any
▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ and other governmental statutes, ordinances,
by-laws, rules, regulations or any other legal requirements, including, without
limitation, those relating to construction, occupancy, zoning, adequacy of
parking, environmental protection, occupational health and safety and fire
safety applicable thereto; and (ii) there are presently in effect all material
licenses, permits and other authorizations necessary for the current use,
occupancy and operation thereof. None of the Sellers has received written notice
of any threatened request, application, proceeding, plan or study which would
materially adversely affect the present use or zoning of any of the Properties
or which would modify or realign any adjacent street or highway.
(h) TAXES. To the Sellers' knowledge, other than the amounts disclosed by
tax bills, no taxes or special assessments of any kind (special, bond or
otherwise) are or have been levied with respect to any of the Properties, or any
portion thereof, which are outstanding or unpaid, other than amounts not yet due
and payable or, if due and payable, not yet delinquent, and, to the Sellers'
knowledge, no such levies are pending or threatened.
(i) HAZARDOUS SUBSTANCES. To the Sellers' knowledge, none of the Sellers
nor any tenant or other occupant or user of any of the Properties, or any
portion thereof, has stored or disposed of (or engaged in the business of
storing or disposing of) or has released or caused the release of any hazardous
waste, contaminants, oil, radioactive or other material on the any of the
Properties, or any portion thereof, in violation of any applicable Federal,
state or local statutes, laws, ordinances, rules or regulations, and, to the
Sellers' knowledge, except as so disclosed to such Purchaser, the Properties are
free from any such hazardous waste, contaminants, oil, radioactive and other
materials, except any such materials maintained in accordance with applicable
law.
(j) NOT A FOREIGN PERSON. None of the Sellers is a "foreign person"
within the meaning of Section 1445 of the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder.
5.2 SURVIVAL OF SELLERS' REPRESENTATIONS. The representations and
warranties made in this Agreement by each of the Sellers shall be continuing and
shall be deemed remade by each of the Sellers as of the Closing Date, with the
same force and effect as if made on, and as of, such date, subject to each
Seller's right to update such representations and warranties by written notice
to the Purchaser of its Property. All representations and warranties made in
this Agreement by the Sellers shall survive the Closing for a period of one (1)
year.
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SECTION VI REPRESENTATIONS AND WARRANTIES OF PURCHASER
6.1 PURCHASERS' REPRESENTATIONS. To induce the Sellers to enter in this
Agreement, each Purchaser represents and warrants to the Seller of the Property
to be acquired by such Purchaser hereunder as follows:
(a) STATUS AND AUTHORITY OF THE PURCHASERS. Each Purchaser is a limited
liability company duly organized and validly existing under the laws of the
State of its formation and has all requisite power and authority under its
charter documents to enter into and perform its obligations under this Agreement
and to consummate the transactions contemplated hereby.
(b) ACTION OF THE PURCHASERS. Each Purchaser has taken all necessary
action to authorize the execution, delivery and performance of this Agreement,
and upon the execution and delivery of any document to be delivered by such
Purchaser on or prior to the Closing Date, this Agreement and such document
shall constitute the valid and binding obligation and agreement of such
Purchaser, enforceable against such Purchaser in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws of general application affecting the
rights and remedies of creditors.
(c) NO VIOLATIONS OF AGREEMENTS. Neither the execution, delivery or
performance of this Agreement by such Purchaser, nor compliance with the terms
and provisions hereof, will result in any breach of the terms, conditions or
provisions of, or conflict with or constitute a default under, or result in the
creation of any lien, charge or encumbrance upon any property or assets of such
Purchaser pursuant to the terms of any indenture, mortgage, deed of trust, note,
evidence of indebtedness or any other agreement or instrument by which such
Purchaser is bound.
(d) LITIGATION. No investigation, action or proceeding is pending and, to
such Purchaser's knowledge, no action or proceeding is threatened and no
investigation looking toward such an action or proceeding has begun, which
questions the validity of this Agreement or any action taken or to be taken
pursuant hereto.
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6.2 SURVIVAL OF PURCHASERS' REPRESENTATIONS. The representations and
warranties made in this Agreement by the Purchasers shall be continuing and
shall be deemed remade by each Purchaser as of the Closing Date with the same
force and effect as if made on, and as of, such date. All representations and
warranties made in this Agreement by the Purchasers shall survive the Closing
for a period of one (1) year.
SECTION VII APPORTIONMENTS
7.1 APPORTIONMENTS. There shall be no apportionments of any items of
income or expense with respect to the Properties on the Closing Date, if being
acknowledged and agreed that the Sellers shall be responsible for the payment of
all such items as the owner of the Properties prior to the Closing Date and as
the tenant under the Lease after the Closing Date.
7.2 CLOSING COSTS. The Sellers shall pay all costs incurred in connection
with the transactions contemplated by this Agreement (including, without
limitation, all title and survey charges, transfer taxes, recording fees and
attorney and consultant fees).
SECTION VIII DEFAULT
8.1 DEFAULT BY ANY SELLER. If any of the Sellers shall have made any
representation or warranty herein which shall be untrue or misleading in any
material respect, or if any of the Sellers shall fail to perform any of the
material covenants and agreements contained herein to be performed by any of the
Sellers, the Purchaser of such Seller's Property shall have all remedies
available to it in law or in equity.
8.2 DEFAULT BY ANY PURCHASER. If any of the Purchasers shall have made any
representation or warranty herein which shall be untrue or misleading in any
material respect, or if any of the Purchasers shall fail to perform any of the
covenants and agreements contained herein to be performed by it, the Seller of
the Property to be acquired by such Purchaser hereunder shall have all remedies
available to them in law or in equity.
SECTION IX MISCELLANEOUS
9.1 BROKERS. Each of the parties hereto represents to the other parties
that it dealt with no broker, finder or like agent in connection with this
Agreement or the transactions contemplated hereby. Each party shall indemnify
and hold harmless each other party and their respective legal representatives,
heirs, successors and assigns from and against any loss, liability or expense,
including, reasonable attorneys' fees, arising out of any claim or claims for
commissions or other compensation for bringing about this Agreement or the
transactions contemplated hereby made by any other broker, finder or like agent,
if such claim or claims are based in whole or in part on dealings with the
indemnifying party.
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9.2 PUBLICITY. The parties agree that no party shall, with respect to this
Agreement and the transactions contemplated hereby, contact or conduct
negotiations with public officials, make any public pronouncements, issue press
releases or otherwise furnish information regarding this Agreement or the
transactions contemplated to any third party without the consent of the other
parties, which consent shall not be unreasonably withheld. No party shall trade
in the securities of another party or any Affiliate thereof until a public
announcement of the transactions contemplated by this Agreement has been made.
No party shall record this Agreement or any notice thereof. Notwithstanding any
provision to the contrary contained herein, each party and any Affiliate thereof
may withhold its consent in its sole and absolute discretion to any mention of
its name in any public release or announcement.
9.3 FINANCIALS. Each Seller shall provide the Purchaser of its Property
with access to its books and records for the purpose of preparing audited
financial statements for each Property with respect to the 2001, 2002, 2003
calendar years and stub 2004 period, such financial statements to be prepared at
the Purchasers' sole cost and expense. Each Seller shall provide the Purchaser
of its Property and its accountants with such certifications with respect to
such financial statements as they shall from time to time reasonably require.
The provisions of this SECTION 9.3 shall survive the Closing hereunder.
9.4 NOTICES.
(a) Any and all notices, demands, consents, approvals, offers, elections
and other communications required or permitted under this Agreement may be given
by the attorneys of the parties and shall be deemed adequately given if in
writing and the same shall be delivered either in hand, by telecopier with
electronic confirmation of receipt, or by mail or Federal Express or similar
expedited commercial carrier, addressed to the recipient of the notice, postpaid
and registered or certified with return receipt requested (if by mail), or with
all freight charges prepaid (if by Federal Express or similar carrier).
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(b) All notices required or permitted to be sent hereunder shall be deemed
to have been given for all purposes of this Agreement upon the date of
acknowledged receipt, in the case of a notice by telecopier, and, in all other
cases, upon the date of receipt or refusal, except that whenever under this
Agreement a notice is either received on a day which is not a Business Day or is
required to be delivered on or before a specific day which is not a Business
Day, the day of receipt or required delivery shall automatically be extended to
the next Business Day.
(c) All such notices shall be addressed,
if to any of the Sellers, to:
Five Star Quality Care, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
[Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
if to any of the Purchasers, to:
Senior Housing Properties Trust
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
[Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇]
(d) By notice given as herein provided, the parties hereto and their
respective successors and assigns shall have the right from time to time and at
any time during the term of this Agreement to change their respective addresses
effective upon receipt by the other parties of such notice and each shall have
the right to specify as its address any other address within the United States
of America.
9.5 WAIVERS, ETC. Any waiver of any term or condition of this Agreement,
or of the breach of any covenant, representation or warranty contained herein,
in any one instance, shall not operate as or be deemed to be or construed as a
further or continuing waiver of any other breach of such term, condition,
covenant, representation or warranty or any other term, condition, covenant,
representation or warranty, nor shall any failure at any time or times to
enforce or require performance of any provision hereof operate as a waiver of or
affect in any manner such party's right at a later time to enforce or require
performance of such provision or any other provision hereof. This Agreement may
not be amended, nor shall any waiver, change, modification, consent or discharge
be effected, except by an instrument in writing executed by or on behalf of the
party against whom enforcement of any amendment, waiver, change, modification,
consent or discharge is sought.
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9.6 ASSIGNMENT; SUCCESSORS AND ASSIGNS. This Agreement and all rights and
obligations hereunder shall not be assignable (i) by any Seller without the
written consent of the intended Purchaser of such Seller's Property hereunder;
or (ii) by any Purchaser without the written consent of the proper Seller,
except that any Purchaser may assign this Agreement to an Affiliate thereof.
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective legal representatives, successors and
permitted assigns. This Agreement is not intended and shall not be construed to
create any rights in or to be enforceable in any part by any other persons.
9.7 SEVERABILITY. If any provision of this Agreement shall be held or
deemed to be, or shall in fact be, invalid, inoperative or unenforceable as
applied to any particular case in any jurisdiction or jurisdictions, or in all
jurisdictions or in all cases, because of the conflict of any provision with any
constitution or statute or rule of public policy or for any other reason, such
circumstance shall not have the effect of rendering the provision or provisions
in question invalid, inoperative or unenforceable in any other jurisdiction or
in any other case or circumstance or of rendering any other provision or
provisions herein contained invalid, inoperative or unenforceable to the extent
that such other provisions are not themselves actually in conflict with such
constitution, statute or rule of public policy, but this Agreement shall be
reformed and construed in any such jurisdiction or case as if such invalid,
inoperative or unenforceable provision had never been contained herein and such
provision reformed so that it would be valid, operative and enforceable to the
maximum extent permitted in such jurisdiction or in such case.
9.8 COUNTERPARTS, ETC. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement
constitutes the entire agreement of the parties hereto with respect to the
subject matter hereof and shall supersede and take the place of any other
instruments purporting to be an agreement of the parties hereto relating to the
subject matter hereof.
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9.9 PERFORMANCE ON BUSINESS DAYS. In the event the date on which
performance or payment of any obligation of a party required hereunder is other
than a Business Day, the time for payment or performance shall automatically be
extended to the first Business Day following such date.
9.10 ATTORNEYS FEES. Notwithstanding anything contained herein to the
contrary, if any lawsuit or arbitration or other legal proceeding arises in
connection with the interpretation or enforcement of this Agreement, the
prevailing party therein shall be entitled to receive from the other party the
prevailing party's costs and expenses, including reasonable attorneys' fees
incurred in connection therewith, in preparation therefor and on appeal
therefrom, which amounts shall be included in any judgment therein.
9.11 SECTION AND OTHER HEADINGS. The headings contained in this Agreement
are for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
9.12 TIME OF ESSENCE. Time shall be of the essence with respect to the
performance of each and every covenant and obligation, and the giving of all
notices, under this Agreement.
9.13 GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of The Commonwealth of Massachusetts and the parties
hereby consent to the jurisdiction of the courts of The Commonwealth of
Massachusetts with respect to any disagreement as between the parties hereto.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as a sealed instrument as of the date first above written.
SELLERS:
MORNINGSIDE OF MACON, LLC,
a Delaware limited liability company
By: GBH/LTA, LLC, a Tennessee limited
liability company, its Sole Member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Manager
MORNINGSIDE OF BEAUFORT, LLC,
a Delaware limited liability company
By: MORNINGSIDE OF SOUTH CAROLINA,
L.P., a Delaware limited
partnership, its Sole Member
By: LIFETRUST AMERICA, INC.,
a Tennessee Corporation, its
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
Treasurer and Chief
Financial Officer
16
MORNINGSIDE OF CAMDEN, LLC,
a Delaware limited liability company
By: MORNINGSIDE OF SOUTH CAROLINA,
L.P., a Delaware limited
partnership, its Sole Member
By: LIFETRUST AMERICA, INC.,
a Tennessee Corporation, its
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
-------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
Treasurer and Chief
Financial Officer
MORNINGSIDE OF HARTSVILLE, LLC,
a Delaware limited liability company
By: MORNINGSIDE OF SOUTH CAROLINA,
L.P., a Delaware limited
partnership, its Sole Member
By: LIFETRUST AMERICA, INC.,
a Tennessee Corporation, its
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
Treasurer and Chief
Financial Officer
17
MORNINGSIDE OF LEXINGTON, LLC,
a Delaware limited liability company
By: MORNINGSIDE OF SOUTH CAROLINA,
L.P., a Delaware limited
partnership, its Sole Member
By: LIFETRUST AMERICA, INC.,
a Tennessee Corporation, its
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
Treasurer and Chief
Financial Officer
MORNINGSIDE OF ORANGEBURG, LLC,
a Delaware limited liability company
By: MORNINGSIDE OF SOUTH CAROLINA,
L.P., a Delaware limited
partnership, its Sole Member
By: LIFETRUST AMERICA, INC.,
a Tennessee Corporation, its
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
Treasurer and Chief
Financial Officer
MORNINGSIDE OF SENECA, L.P.,
a Delaware limited partnership
By: LIFETRUST AMERICA, INC.,
a Tennessee Corporation, its
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
Treasurer and Chief Financial
Officer
18
MORNINGSIDE OF CULLMAN, LLC,
a Delaware limited liability company
By: MORNINGSIDE OF ALABAMA, L.P., a
Delaware limited partnership, its
Sole Member
By: LIFETRUST AMERICA, INC.,
a Tennessee Corporation, its
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
Treasurer and Chief
Financial Officer
MORNINGSIDE OF MADISON, LLC,
a Delaware limited liability company
By: MORNINGSIDE OF ALABAMA, L.P., a
Delaware limited partnership, its
Sole Member
By: LIFETRUST AMERICA, INC.,
a Tennessee Corporation, its
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
Treasurer and Chief Financial Officer
19
MORNINGSIDE OF SHEFFIELD, LLC,
a Delaware limited liability company
By: MORNINGSIDE OF ALABAMA, L.P., a
Delaware limited partnership, its
Sole Member
By: LIFETRUST AMERICA, INC.,
a Tennessee Corporation, its
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
Treasurer and Chief
Financial Officer
MORNINGSIDE OF BOWLING GREEN, LLC,
a Delaware limited liability company
By: MORNINGSIDE OF KENTUCKY, L.P., a
Delaware limited partnership, its
Sole Member
By: LIFETRUST AMERICA, INC.,
a Tennessee Corporation, its
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
Treasurer and Chief
Financial Officer
20
MORNINGSIDE OF PADUCAH, LLC,
a Delaware limited liability company
By: MORNINGSIDE OF KENTUCKY, L.P., a
Delaware limited partnership, its
Sole Member
By: LIFETRUST AMERICA, INC.,
a Tennessee Corporation, its
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
Treasurer and Chief
Financial Officer
MORNINGSIDE OF ▇▇▇▇▇▇▇, LLC,
a Delaware limited liability company
By: MORNINGSIDE OF GEORGIA, L.P., a
Delaware limited partnership, its
Sole Member
By: LIFETRUST AMERICA, INC.,
a Tennessee Corporation, its
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
Treasurer and Chief
Financial Officer
21
MORNINGSIDE OF GAINESVILLE, LLC,
a Delaware limited liability company
By: MORNINGSIDE OF GEORGIA, L.P., a
Delaware limited partnership, its
Sole Member
By: LIFETRUST AMERICA, INC.,
a Tennessee Corporation, its
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
Treasurer and Chief
Financial Officer
MORNINGSIDE OF CLEVELAND, LLC,
a Delaware limited liability company
By: MORNINGSIDE OF TENNESSEE, LLC, a
Delaware limited liability
company, its Sole Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
Treasurer and Chief Financial
Officer
MORNINGSIDE OF COOKEVILLE, LLC,
a Delaware limited liability company
By: MORNINGSIDE OF TENNESSEE, LLC, a
Delaware limited liability
company, its Sole Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
-------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
Treasurer and Chief Financial
Officer
22
PURCHASERS:
MSD - MACON, LLC
MSD - BEAUFORT, LLC
MSD - CAMDEN, LLC
MSD - HARTSVILLE, LLC
MSD - LEXINGTON, LLC
MSD - ORANGEBURG, LLC
MSD - SENECA, LLC
MSD - CULLMAN, LLC
MSD - MADISON, LLC
MSD - SHEFFIELD, LLC
MSD - BOWLING GREEN, LLC
MSD - PADUCAH, LLC
MSD - ▇▇▇▇▇▇▇, LLC
MSD - GAINESVILLE, LLC
MSD - CLEVELAND, LLC
MSD - COOKEVILLE, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Treasurer of each of the foregoing
entities
23
EXHIBITS A-1-A-16
THE LAND
[These exhibits have been omitted and will be supplementally furnished
to the Securities and Exchange Commission upon request.]
24
EXHIBIT B
DEBT DOCUMENTS
[This exhibit has been omitted and will be supplementally furnished
to the Securities and Exchange Commission upon request.]
25
EXHIBIT C
FORM OF LEASE
[This exhibit has been omitted and will be supplementally
furnished to the Securities and Exchange Commission upon request.]
26
EXHIBIT D
LENDER ESTOPPEL
[This exhibit has been omitted and will be supplementally
furnished to the Securities and Exchange Commission upon request.]
27