EXHIBIT 2.2
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Amendment"),
dated as of March 8, 2001, 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"), MEDITRUST OF
CALIFORNIA, INC., a Delaware corporation ("Meditrust-California") and THCI MT,
LLC, a Delaware limited liability company (the "Purchaser").
Reference is made to that certain Purchase and Sale Agreement, dated as
of December 20, 2000, by and among Meditrust, MHC, Meditrust-MA,
Meditrust-Bedford, the Fresno Partnership, MMI, New Meditrust-LLC and the
Purchaser (the "Purchase and Sale Agreement"). Capitalized terms used herein and
not otherwise defined herein shall have the same meanings ascribed to such terms
in the Purchase and Sale Agreement.
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Meditrust Parties, the Subsidiaries and the
Purchaser hereby agree as follows:
1. Article 1 of the Purchase and Sale Agreement is hereby amended as
follows:
A. By adding the following definition immediately before the term
"Additional Interest":
"ADDITIONAL DISCLOSED OBLIGATIONS" shall mean all of the obligations
of New Meditrust-LLC disclosed in the Disclosure Letter.
B. By adding the following definitions immediately after the term
"Bradenton P&S":
"BRIDGE LOAN" shall have the meaning ascribed to such term in
Section 3.4(x).
"BRIDGE LOAN DEED OF TRUST" shall have the meaning ascribed to
such term in Section 3.4(x).
C. By adding the following definition after the term "Camden, NJ
Leased Property":
"CAPITAL ADDITION DISCLOSURE LIST" shall have the meaning
ascribed to such term in Section 7.2(d)(9).
D. By deleting the following definition of the "Closing Date" in its
entirety and restating it to read as follows:
"CLOSING DATE" shall mean March 28, 2001, as such date may be
extended in accordance with Section 3.4 (g), Section 6.1(c), Section
6.2(d) and/or Article 10.
E. By amending the definition of Controlling Parties to include
▇▇▇▇▇▇▇ Capital Group.
F. By adding the following definition after the term "Corporations":
"CORRECTION NOTICE" shall mean that certain e-mail message sent
from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ on February 8, 2001,
a copy of which is attached to the First Amendment as EXHIBIT 4.
G. By deleting definition "Deposit" in its entirety and restating it
to read as follows:
"DEPOSIT" shall mean collectively the Initial Deposit, the
First Extension
Deposit and the Second Extension Deposit and all interest that
has accrued thereon.
H. By adding the following definition after the term "Deposit Pledge
Agreements":
"DISCLOSURE LETTER" shall mean that certain letter dated February
23, 2001 from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, a copy of
which (excluding all enclosures referred to therein) is attached as
EXHIBIT 7 to the First Amendment.
I. By adding the following definitions after the term "Environmental
Laws":
"ENVIRONMENTAL LIST" shall mean that certain list of Land Parcels
attached to the First Amendment as EXHIBIT 6.
"ENVIRONMENTAL MATTER" shall have the meaning ascribed to such
term in Section 4.2.
"ENVIRONMENTAL NOTICE" shall have the meaning ascribed to such
term in Section 4.2.
2
J. By adding the following definitions immediately after the term
"Financing Statements":
"FIRST AMENDMENT" shall mean that certain First Amendment to
Purchase and Sale Agreement, dated as of March 8, 2001, by and among
the Meditrust Parties, the Subsidiaries and the Purchaser.
"FIRST EXTENSION DEPOSIT" shall have the meaning ascribed to such
term in Section 3.4(g).
K. By adding the following definition immediately after the term
"Hazardous Materials":
"HAZARDOUS SUBSTANCES" 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 Substances Control
Act (15 U.S.C. Section 2601 ET SEQ.); (iv) gasoline, diesel
fuel or other petroleum hydrocarbons; and (v) 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).
L. By adding the following definition immediately after the term
"Individual Casualty Threshold":
"INITIAL DEPOSIT" shall have the meaning ascribed to such term in
Section 2.3.
3
M. By adding the following definition immediately after the term
"Limitation Threshold":
"LIMITED ENVIRONMENTAL INDEMNIFICATION" shall have the meaning
ascribed to such term in Section 4.2.
N. By deleting the definition of the "Meditrust Entities" in its
entirety and restating such definition as follows:
"MEDITRUST ENTITIES" shall mean collectively the Meditrust
Parties and the Subsidiaries.
O. By deleting the definitions of the "MMI Collateral" and the "MMI
Loan" in their entirety and restating such definitions as follows:
"MMI COLLATERAL" shall mean all of the equity interests in the
Purchaser.
"MMI LOAN" shall mean the loan in the amount of THIRTY-FIVE
MILLION DOLLARS ($35,000,000) to be made by MMI (or, at MMI's
option, by any other subsidiary wholly-owned, directly or
indirectly, by Meditrust other than any of the Subsidiaries) to the
Purchaser at the Closing in accordance with the terms and conditions
of the Term Sheet and Section 3.4(t) hereof.
P. By adding the following definition immediately after the term
"New Haven, IN Leased Property":
"NEW LLCS" shall have the meaning ascribed to such term in
Section 3.4(z).
Q. By adding the following definition immediately after the term
"Sarasota, FL Leased Property":
"SECOND EXTENSION DEPOSIT " shall have the meaning ascribed to
such term in Section 3.4(g).
R. By deleting the definition of the "Term Sheet" in its entirety
and restating such definition as follows:
"TERM SHEET" shall mean that certain Amended and Restated Letter
Agreement, dated as of March 8, 2001 by and between MMI and the
Purchaser relating to the MMI Loan.
4
S. By adding the following definition immediately after the term
"UCC Assignments":
"UNASSUMED LIABILITIES" shall mean any and all liabilities (of
every nature, character, type and description) of the Meditrust
Entities other than (i) those associated with the owner's right,
title and interest in the Leased Properties (other than the Marlton,
NJ Leased Property and the Wethersfield, CT Leased Property), (ii)
those associated with the lessee's right, title and interest under
the Ground Leases, (iii) those associated with the landlord's right,
title and interest in the Lease Documents, (iv) those associated
with the lessee's obligations under the Marlton Access Agreement,
(v) those associated with the lender's right, title and interest
under the Loan Documents, and (vi) those expressly assumed by the
Purchaser under this Agreement and/or the Purchaser's Documents.
T. By deleting the definition of "Unlimited Indemnified Claim" in
its entirety and restating it as follows:
"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, (iii)
Section 3.4 (q)(iii) that relates to any of the Additional Disclosed
Obligations, (iv) Section 3.4(q)(iv) or (v) Section 3.4(q)(v).
2. The first two sentences of Section 2.2 of the Purchase and Sale
Agreement are hereby deleted in their entirety and are restated as follows:
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 FIFTY-TWO MILLION DOLLARS ($452,000,000) (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 SEVENTEEN
MILLION DOLLARS ($417,000,000) 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.
3. The first sentence of Section 2.3 of the Purchase and Sale Agreement
is hereby deleted in its entirety and is restated as follows:
Unless the Purchaser has terminated this Agreement pursuant to
Section 4.2 hereof, the Purchaser shall deposit a deposit with the
Escrow Agent in the amount of TEN MILLION DOLLARS ($10,000,000) (the
"Initial Deposit") prior to 3 P.M. East Coast time on March 8, 2001.
5
4. Section 3.4(c) of the Purchase and Sale Agreement is hereby amended
by adding the following paragraph at the conclusion thereof:
Notwithstanding anything to the contrary set forth herein,
prior to the submission of any materials to the HUD Mortgagee in
connection with their obligation hereunder to use their best efforts to
obtain the HUD Consents, the Meditrust Entities shall provide copies of
such materials to the Purchaser so that the Purchaser can review the
same and the Meditrust Entities shall incorporate any reasonable
comments made by the Purchaser, including, without limitation, any
comments made by the Purchaser to address any matters formally or
informally disclosed to or discussed with the Purchaser.
5. Section 3.4(g) of the Purchase and Sale Agreement is hereby amended
by adding the following paragraphs at the conclusion thereof:
The Purchaser shall use its best efforts to obtain the
Connecticut Consents and shall update the Meditrust Entities from time
to time (as often as the Meditrust Entities may reasonably request)
concerning the Purchaser's progress in seeking to obtain the
Connecticut Consents. The Purchaser agrees to consult with the
Meditrust Entities concerning their efforts to obtain the Connecticut
Consents and to allow the Meditrust Entities to review and comment on
any further notices to be sent to and/or filings to be made with the
appropriate governmental authorities in Connecticut regarding the
Connecticut Consents before the same are sent and/or filed. The
Purchaser further agrees to allow the Meditrust Entities to participate
along with the Purchaser and/or its representatives in any meetings
and/or discussions with the governmental authorities in Connecticut
regarding the Connecticut Consents. Notwithstanding the preceding two
(2) sentences, the Purchaser shall solely control the prosecution and
settlement of the Connecticut Consents. The Purchaser agrees to give
the Meditrust Entities no less than twenty- four (24) hours' notice of
any scheduled meeting with Governmental Authorities regarding the
Connecticut Consents (but the foregoing shall not be deemed to apply to
telephone or other informal conversations with the applicable
Governmental Authorities unless the Meditrust Entities expressly
request to participate in any specific call or conversation). The
Purchaser shall have no obligation to reschedule or move any such
meeting to accommodate the Meditrust Entities' desire to attend or
participate in any such meeting. The Meditrust Entities' failure to
attend or participate in any meeting for which they have received such
notice shall be deemed to be a waiver by the Meditrust Entities of
their right to attend or participate in such meeting. The Purchaser
shall deliver to the Meditrust Entities for the Meditrust Entities'
comments any further notices or filings with respect to the Connecticut
Consent no later than two (2) days prior to the Purchaser's submission
of any such materials to the relevant Governmental Authority. The
Meditrust Entities' failure to respond to any such submission within a
two (2) day period after their receipt of such materials shall be
deemed the Meditrust Entities' approval of such materials.
6
In the event that on or before the Closing Date, the Purchaser
used its best efforts to obtain the Connecticut Consents but has not
obtained the Connecticut Consents, the Purchaser may elect to extend
the Closing Date for up to thirty (30) days by delivering (i) written
notice to the Meditrust Entities and (ii) an additional deposit in the
amount of TEN MILLION DOLLARS ($10,000,000) to the Escrow Agent (the
"First Extension Deposit"), each on the original date for performance
hereunder and prior to 2:00 PM East Coast Time. In the event that the
Purchaser elects to extend the Closing Date in accordance with the
foregoing sentence and notwithstanding such extension, on or before the
Closing Date, the Purchaser used its best efforts to obtain the
Connecticut Consents but has not obtained the Connecticut Consents, the
Purchaser may elect to extend the Closing Date for up to an additional
thirty (30) days by delivering (i) written notice to the Meditrust
Entities and (ii) an additional deposit in the amount of TEN MILLION
DOLLARS ($10,000,000) to the Escrow Agent (the "Second Extension
Deposit"), each on the extended date for performance hereunder and
prior to 2:00 PM East Coast Time.
6. Section 3.4(q)(i) through and including Section 3.4(q)(iii) of the
Purchase and Sale Agreement are hereby amended by deleting all references to
"Subsidiaries" therein and replacing such references with "Meditrust Entities".
7. Section 3.4(q)(iv) through and including Section 3.4(q)(viii) are
hereby deleted in their entirety and replaced with the following provisions:
(iv) any and all Unassumed Liabilities;
(v) 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, incurred,
accrued and/or occurring, for debts, liabilities, contractual
obligations, violations, torts, acts and/or omissions relating to any
of the Other Assets;
(vi) the release from escrow and the use by the Subsidiaries
or MMI of the Cash Collateral, Security Deposits and/or other Escrowed
Funds disclosed by the Cash Conversion Letters;
(vii) the consummation of the transaction contemplated by this
Agreement constituting a default by any of the Subsidiaries under any
of the Leases;
(viii) the Pending Litigation; and
(ix) all reasonable costs and expenses (including, without
limitation, reasonable attorney's fees, interest, and penalties)
incurred by the Purchaser in
7
connection with any action, suit, proceeding, demand, assessment or
judgment incident to any of the matters indemnified against.
8. Section 3.4(r)(i) is hereby deleted in its entirety and restated to
read as follows:
(i) any and all liabilities and obligations of the
Subsidiaries for (x) federal, state or local taxes incurred, arising or
accrued for any period from (and including) the Closing Date and
thereafter and (y) the tax obligations that the Purchaser has agreed to
pay pursuant to Section 3.4(z) without, however, limiting the
obligations, representations, warranties or indemnifications of the
Meditrust Parties to the Purchaser under the Agreement for tax matters
that would exist or be imposed without regard to the Meditrust Parties'
actions under Section 3.4(z).
9. Section 3.4(t) of the Purchase and Sale Agreement is hereby deleted
in its entirety and restated as follows:
(t) MMI LOAN. MMI and the Purchaser have entered into the Term
Sheet. MMI and the Purchaser shall use their best efforts to negotiate
and agree upon the forms of the MMI Loan Documents as promptly as
possible. Such forms shall be commercially reasonable based upon the
size, nature and scope of the transaction contemplated hereunder.
10. Section 3.4 of the Purchase and Sale Agreement is hereby
amended by adding the following subsections (x), (y) and (z):
(x) BANK OF TOKYO LOAN. On or before March 15, 2001, MMI agrees to
provide a bridge loan to the Fresno Partnership (the "Bridge Loan") to
refinance the Bank of Tokyo Loan. The Bridge Loan shall be made in
accordance with the terms of the Fresno Partnership Agreement and shall
be secured by a deed of trust encumbering the Fresno, CA Leased
Property (the "Bridge Loan Deed of Trust"). The principal amount of the
Bridge Loan shall be equal to (and, in no event exceed) the amount
required to refinance the Bank of Tokyo Loan. On or before March 16,
2001, MMI shall provide the Purchaser with copies of the loan documents
evidencing the Bridge Loan. At the Purchaser's option, exercisable by
written notice to MMI no less than seven (7) days prior to the Closing,
the Purchaser may elect to require MMI to assign (for no additional
consideration) the Bridge Loan and all documents evidencing the Bridge
Loan (including, without limitation, the Bridge Loan Deed of Trust) to
the Purchaser (or any nominee) at the Closing and, in such event,
simultaneous with such assignment to the Purchaser (or its nominee),
the Fresno Partnership shall release MMI from all obligations and
claims thereunder. Such assignment shall be made without recourse to
MMI and the only representations to be made by MMI in connection with
such assignment shall be representations (i) that MMI holds,
unencumbered, all right, title and interest of the lender under the
Bridge Loan and (ii) the outstanding principal and interest under the
Bridge Loan.
8
(y) RELEASE OF PARTIES FROM THE LOAN DOCUMENTS. All rights held by
MMI against any parties under any of the Loan Documents shall be
assigned to the Purchaser in accordance with the terms hereof and from
and after the Closing, MMI shall not have any rights against any
parties or any properties which are cross-collateralized with any of
the Loans or the Mortgaged Properties. Upon the reasonable request of
the Purchaser, MMI shall provide the Purchaser with copies of any
releases relating to the Loan Documents previously executed by MMI and
agrees to execute any document reasonably requested by the Purchaser to
confirm such release and the matters set forth in the immediately
preceding sentence.
(z) FUTURE CORPORATE RESTRUCTURING. The Purchaser has requested
that and the Meditrust Entities have agreed to take all such steps as
may reasonably be required to merge Meditrust-MA, Meditrust-California
and Meditrust-Bedford into newly-formed limited liability companies
(collectively, the "New LLCs") immediately prior to the Closing,
PROVIDED, THAT, (i) subject to the prior review and approval (as to
form, content and timing) by the Meditrust Entities, the Purchaser
shall prepare and file all documentation necessary to create the New
LLCs and effectuate the mergers, (ii) any state transfer or other tax
liability arising solely as a consequence of such mergers shall be paid
the Purchaser and (iii) in no event shall any such merger take place
involving Meditrust-Bedford unless and until the HUD Consents have been
obtained. The obligations of the Purchaser set forth in the foregoing
clause (ii) shall not, however, limit the obligations, representations,
warranties or indemnifications of the Meditrust Parties to the
Purchaser under the Agreement for tax matters that would exist or be
imposed without regard to the Meditrust Parties' actions under this
Section 3.4(z).
11. The first four (4) words of sentence of Section 4.1 of the Purchase
and Sale Agreement (i.e., "During the Study Period") are hereby deleted and
replaced with the following words:
From and after the date hereof until the Closing Date
12. Section 4.2 of the Purchase and Sale Agreement is hereby amended by
(i) deleting the last sentence of the first paragraph thereof and (ii) adding
the following paragraphs at the conclusion thereof:
The Meditrust Entities acknowledge that the applicable
Meditrust Entities hold title to many of the Leased Properties by
virtue of various "off-record" mergers and/or other corporate
restructurings involving a subsidiary that is (or was) owned and
controlled, directly or indirectly, by Meditrust or Meditrust-BT and
agree that to the extent that any predecessor in interest to any of the
Meditrust Entities was a subsidiary that is (or was) owned and
controlled, directly or indirectly, by Meditrust or Meditrust-BT, the
Meditrust Entities shall provide the Title Company with any evidence
reasonably requested by the Title Company to evidence such off-record
9
mergers and restructurings to confirm that the applicable Meditrust
Entity is the successor to the current record title holder of each
Leased Property in accordance with the Express Representations and
Warranties. Such requests need not be identified in the Title Objection
Notice; PROVIDED, HOWEVER, that the Purchaser agrees to cause the Title
Company to provide the Meditrust Entities with any requests for the
evidence described in the foregoing sentence promptly after the
expiration of the Study Period and in no event later than March 12,
2001. The waiver set forth in clause (b) of the third paragraph of
Section 4.2 hereof shall not be deemed to include any objection to the
state of the title of any of the Leased Properties if such objection
relates solely to any failure by the Meditrust Entities to provide the
Title Company with any evidence reasonably requested by the Title
Company in accordance with the terms hereof to evidence such off-record
transactions and conclude that the applicable Meditrust Entities hold
good title to the Leased Properties in accordance with the Express
Representations and Warranties.
The Purchaser has notified the Meditrust Entities that the
Purchaser has engaged qualified environmental consultants to conduct
soil sampling tests on the Land Parcels identified on the Environmental
List, in order to determine whether there has been a release of
Hazardous Substances from any storage tanks now or formerly located on
or under such Land Parcels or, with respect to the Boston, MA Land,
from any prior use of such Land Parcel as a gas station. Such tests
shall be conducted as soon as possible and in any event by the end of
the day on March 19, 2001. In the event that the results of such
testing reveal the presence of any Hazardous Substances on any such
Land Parcel in violation of any applicable Environmental Laws (in each
instance, such presence to be referred to as an "Environmental
Matter"), the Purchaser shall provide written notice to the Meditrust
Parties (the "Environmental Notice") of the results of such testing
(which notice shall include a copy of the results of such testing and
the conclusions drawn and recommendations made by the Purchaser's
environmental consultants in connection therewith) on or before March
23, 2001. If the Purchaser provides the Meditrust Parties with an
Environmental Notice in accordance with the terms hereof, (a) the
Meditrust Parties shall and hereby agree (jointly and severally) to
indemnify the Purchaser (and any subsidiaries wholly-owned, directly or
indirectly, by the Purchaser) from and against all reasonable
out-of-pocket costs and expenses (including reasonable attorneys' and
consultants' fees and expenses) reasonably incurred by the Purchaser in
connection with any required clean- up, containment, remediation,
removal and/or restoration relating to the Environmental Matters up to
a maximum aggregate amount of FIVE MILLION DOLLARS ($5,000,000) (the
"Limited Environmental Indemnification"), (b) the Purchaser shall
remain obligated to consummate the transaction contemplated by this
Agreement in accordance with the terms hereof and (c) except as
expressly set forth herein with respect to the Limited Environmental
Indemnification, the Meditrust Parties shall have no further
obligations, at law or in equity, to the Purchaser (or any subsidiary
wholly-owned directly or indirectly by the Purchaser) related to the
Environmental Matters or any other environmental condition relating to
any of the Properties. The procedures for asserting any claim under the
Limited Environmental
10
Indemnification shall be the same as set forth under Section 3.4(s)
(excluding Section 3.4(s)(iv), MUTATIS, MUTANDIS.
Prior to exercising any rights against any of the Meditrust
Parties under the Limited Environmental Indemnification with respect to
any Environmental Matter (other than serving a notice of claim), the
Purchaser (or its applicable direct or indirect wholly-owned
subsidiary) shall enforce all of the applicable Tenant's and
Guarantor's obligations under the applicable Lease Documents (or the
applicable Borrower's obligations under the applicable Loan Documents)
relating to such Environmental Matter until such time, if any, that the
applicable Tenant's obligations under the applicable Lease Documents
(or the applicable Borrower's obligations under the applicable Loan
Documents) are rejected or otherwise released in any applicable
Bankruptcy Proceeding. In the event that the Meditrust Parties pay a
claim asserted in accordance with the terms hereof under the Limited
Environmental Indemnification, THEN, simultaneously with such payment,
the Purchaser (or its applicable direct or indirect wholly- owned
subsidiary) shall assign to the Meditrust Parties any and all claims
relating to such Environmental Matter arising under the applicable
Lease Documents against any Tenant and/or any Guarantor.
13. The first sentence of Section 7.2(b)(1) of the Purchase and Sale
Agreement is hereby amended by deleting the phrase "(xvii) the Contracts and
(xviii) the Marlton Access Agreement" in its entirety and restating such phrase
as follows:
(xvii) the Contracts, (xviii) the Marlton Access Agreement and
(xvix) the Additional Disclosed Obligations
14. The last sentence of Section 7.2(b)(1) of the Purchase and Sale
Agreement is hereby amended by deleting the phrase "(11) the Contracts and (12)
the Marlton Access Agreement" in its entirety and restating such phrase as
follows:
(11) the Contracts, (12) the Marlton Access Agreement and (13) the
Additional Disclosed Obligations
15. Section 7.2(b)(2) of the Purchase and Sale Agreement is hereby
amended by adding the following sentence:
Neither New Meditrust - LLC nor the Fresno Partnership is, or
has ever been in the past, taxable as a corporation for
federal income tax purposes. Since its organization, each of
Meditrust - MA, Meditrust - Bedford and Meditrust - California
has qualified (and been treated) as a "qualified REIT
subsidiary" under I.R.C. ss.856(i).
16. Section 7.2(d) of the Purchase and Sale Agreement is hereby amended
by adding the following subsection (9):
11
To the best of the Meditrust Parties' knowledge, the only
"Capital Additions" made by any of the applicable Tenants (or their
predecessors in interest under the applicable Leases) to any of the
Leased Properties are described on EXHIBIT 5 to the First Amendment
(the "Capital Addition Disclosure List"). As used in the foregoing
sentence, the term "Capital Addition" with respect to all Leases except
the Integrated Leases shall have the meaning ascribed to such term
under the applicable Lease affecting the applicable Leased Property on
which such Capital Addition was made and shall with respect to the
Integrated Leases, relying on the Omnibus Integrated Lease Amendment,
have the meaning ascribed to such term under the Grand Banc, MI Lease.
17. Section 7.3 of the Purchase and Sale Agreement is hereby amended by
adding the following sentence at the conclusion thereof:
Notwithstanding anything to contrary set forth herein, (i)
prior to the delivery of EXHIBIT RR-2, the Meditrust Parties did not
make any independent review or investigation of any public records
relating to any Tenant, Borrower or Guarantor and/or any public filings
made by any Tenant, Borrower or Guarantor (including copies of any
public filings that may have been delivered to or obtained by any of
the Meditrust Entities by any Tenant, Borrower or Guarantor) and (ii)
the Purchaser acknowledges that the Meditrust Entities had no
obligation to review any such public records and/or public filings and
in no event shall the Meditrust Parties be imputed to have any
knowledge of the information set forth therein.
18. Section 8.2(t) of the Purchase and Sale Agreement is hereby amended
by adding the following sentence at the conclusion thereof:
The obligation set forth in the foregoing clauses (i) and (ii) shall be
satisfied by the delivery of affidavits in the form attached to the
First Amendment as EXHIBIT 1A. In addition, but without limiting the
foregoing, to the extent requested by the Title Company, the Meditrust
Parties shall execute a so-called "non-imputation affidavit" in the
form attached to the First Amendment as EXHIBIT 1B. In addition, if
requested by the Title Company, the Meditrust Parties shall provide an
affidavit to the Title Company setting forth the same representations
regarding the outstanding liabilities of the Subsidiaries as are set
forth in the Purchase and Sale Agreement. Except as expressly provided
in this paragraph, the Meditrust Parties shall have no obligations
hereunder to deliver any other affidavits or indemnity agreements to
the Title Company other than such affidavits or indemnity agreements
that the Meditrust Parties may elect to provide to satisfy the Sellers'
obligations to cure the Purchaser Title Objections in accordance with
the terms of Section 4.2 hereof. Nothing set forth in the immediately
preceding sentence shall be deemed to limit or modify the Sellers'
obligations to cure the Purchaser Title Objections in accordance with
the terms of Section 4.2.
12
19. The first paragraph of Section 11.2 of the Purchase and Sale
Agreement is hereby deleted in its entirety and restated to read as follows:
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
other than its failure to obtain the Connecticut Consents, 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. 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 solely as a result of its
failure to obtain the Connecticut Consents, THEN (a) this Agreement
shall terminate; (b) Five Million Dollars ($5,000,000) of the Deposit
shall be promptly paid to and retained by the Sellers as liquidated
damages and the balance of the Deposit shall be paid to the Purchaser;
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 OF A BREACH OF THIS AGREEMENT BY
THE PURCHASER WOULD BE DIFFICULT OR IMPOSSIBLE TO DETERMINE, THAT THE
AMOUNTS SET FORTH HEREIN REPRESENT 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.
20. Exhibit A-1 to the Purchase and Sale Agreement is hereby deleted in
its entirety and restated in the form attached hereto as EXHIBIT 2.
13
21. Exhibit H-12 to the Purchase and Sale Agreement is hereby deleted
in its entirety and restated in the form attached hereto as EXHIBIT H-12 and
Exhibit H-17 to the Purchase and Sale Agreement is hereby deleted in its
entirety and restated in the form attached hereto as EXHIBIT H-17.
22. Exhibit I-5 to the Purchase and Sale Agreement is hereby deleted in
its entirety and restated in the form attached hereto as EXHIBIT I-5 and Exhibit
L-1 to the Purchase and Sale Agreement is hereby deleted in its entirety and
restated in the form attached hereto as EXHIBIT L-1.
23. Exhibit N-11 to the Purchase and Sale Agreement is hereby deleted
in its entirety and restated in the form attached hereto as EXHIBIT N-11 and
Exhibit N-17 to the Purchase and Sale Agreements is hereby deleted in its
entirety and restated in the form attached hereto as EXHIBIT N-17.
24. Exhibit YY-1 to the Purchase and Sale Agreement is amended to
reflect the correction disclosed in Item 1 of the Correction Notice.
25. Exhibit RR-1 to the Purchase and Sale Agreement is amended to
reflect the correction disclosed in Item 2 of the Correction Notice.
26. The footnote on ▇▇▇▇▇▇▇ ▇▇-▇ of the Purchase and Sale Agreement is
hereby deleted in its entirety.
27. Exhibit DD to the Purchase and Sale Agreement is amended to reflect
the correction disclosed in Item 3 of the Correction Notice.
28. The Purchaser acknowledges and agrees that (i) the Study Period
expired on February 26, 2001, (ii) the Purchaser's right to terminate the
Purchase and Sale Agreement in accordance with the terms of Section 4.2 of the
Purchase and Sale Agreement has expired (without the Purchaser exercising such
right), (iii) the Purchaser did not identify any other Consents prior to the
expiration of the Study Period, (iv) the Purchaser has received a Borrower
Estoppel Certificate from the Borrower under the Tustin, CA Loan and Tenant
Estoppel Certificates from the Tenants under the Harborside Leases and the
Lakeview Leases (all in satisfactory form), and the Meditrust Entities have no
further obligations under the Purchase and Sale Agreement to attempt to obtain
or deliver any Borrower Estoppel Certificates or Tenant Estoppel Certificates to
the Purchaser, (v) all Closing Conditions relating to Borrower Estoppel
Certificates and Tenant Estoppel Certificates have been satisfied, (vi) the
Purchaser has received the Marlton Consent (in satisfactory form) and all
Closing Conditions relating to the Marlton Consent have been satisfied, (vii)
the Purchaser has received the Marlton Ground Lessor's Estoppel Certificate and,
except as expressly set forth below, all Closing Conditions relating to the
Marlton Ground Lessor's Estoppel Certificate have been satisfied, (viii) the
Purchaser has received the Brookline Ground Lessor's Estoppel Certificate (in
satisfactory form) and the Meditrust Entities have no further obligations under
the Purchase and Sale Agreement relating to
14
the Brookline Ground Lessor's Estoppel Certificate and (IX) the Purchaser has
received the Wethersfield Ground Lessor's Estoppel Certificate (in satisfactory
form) executed by one of the parties comprising the Wethersfield Ground Lessor
and, except as expressly set forth below, all Closing Conditions relating to the
Wethersfield Ground Lessor's Estoppel Certificate have been satisfied.
Notwithstanding the foregoing and notwithstanding anything to the contrary set
forth in the Purchase and Sale Agreement, the Sellers acknowledge and agree that
the Sellers (1) shall deliver to the Purchaser a written acknowledgment from the
Marlton Ground Lessor that the monetary defaults identified by the Marlton
Ground Lessor on Exhibit D attached to the Marlton Ground Lessor's Estoppel
Certificate have been cured (or any other satisfactory evidence demonstrating
payment thereof) and (2) shall use their best efforts to obtain and deliver to
the Purchaser evidence of the probate of the estate of ▇▇▇▇ ▇▇▇▇▇▇▇ and the
identity of her beneficiaries thereunder and a revised Wethersfield Ground
Lessor's Estoppel Certificate revised to correctly identify the beneficiaries of
the estate of ▇▇▇▇ ▇▇▇▇▇▇▇ and executed by all parties comprising the
Wethersfield Ground Lessor.
29. If requested by the Purchaser, the Meditrust Entities shall use
their best efforts to obtain a joinder by the Wethersfield Ground Lessor in any
mortgage to be granted by New Meditrust-LLC (or its successor in interest)
subsequent to the Closing; PROVIDED, HOWEVER, that (i) any such joinder must be
consistent with the terms of the Wethersfield Ground Lease, (ii) the delivery of
any such joinder shall not be a Closing Condition and (iii) the Meditrust
Entities shall not be obligated to file any litigation seeking to compel the
Wethersfield Ground Lessor to deliver such joinder.
30. All of the parties hereto (including, without limitation,
Meditrust-California) acknowledge and agree that Meditrust-California is hereby
added as a signatory to the Purchase and Sale Agreement.
31. The Allocated Value Schedule is hereby amended by multiplying each
Allocated Value listed thereon by a fraction the numerator of which is
452,000,000 and the denominator of which is 467,600,000.
32. The Meditrust Entities (a) acknowledge receipt of the Title
Objection Notice, a copy of which is attached hereto as EXHIBIT 3, (b) reserve
the right to contest whether the matter described in the Title Objection Notice
relating to the Erie, PA Leased Property constitutes a valid Purchaser Title
Objection and (c) waives the right to contest whether any other matters
described in the Title Objection Notice constitute valid Purchaser Title
Objections. The Purchaser acknowledges and agrees that notwithstanding anything
to the contrary that may be set forth in the Title Objection Notice, the
Purchaser waives all rights to object to any failure by any of the Meditrust
Entities to file or continue any Financing Statements. The Purchaser shall use
its best efforts to deliver, or cause the Title Company to deliver, to the
Sellers, on or before March 12, 2001, a list in such detail that is practically
available, setting forth the amount of Real Estate Taxes that, as of the latest
effective date of the title commitment for each of the Leased Properties, is due
and payable and remains unpaid. To the maximum extent possible, such list shall
show for each of the Leased
15
Properties the tax fiscal periods for which any Real Estate Taxes remain due and
payable, the due date thereof and the later date, if any, after which interest
and penalties begin to accrue. The Purchaser shall promptly provide to the
Sellers any other additional information relating to any past due and payable
Real Estate Taxes relating to the Leased Properties that the Purchaser may
receive from and after March 12, 2001. The Purchaser shall thereafter cause the
Title Company to deliver an updated list to the Sellers three (3) Business Days
prior to the scheduled Closing Date to set forth the status of the payment of
Real Estate Taxes affecting the Leased Properties through such scheduled Closing
Date. Nothing contained in this paragraph shall be deemed to limit or modify the
obligations set forth under Section 8.4 of the Purchase and Sale Agreement.
33. A copy of that certain e-mail message sent from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ on February 8, 2001 (which message is defined in the Purchase
and Sale Agreement as the Correction Notice) is attached hereto as EXHIBIT 4.
34. A copy of the Capital Addition Disclosure List (as defined under
the Purchase and Sale Agreement as of the execution and delivery of this
Amendment) is attached hereto as EXHIBIT 5.
35. A copy of the Environmental List (as defined under the Purchase and
Sale Agreement as of the execution and delivery of this Amendment) is attached
hereto as EXHIBIT 6.
36. A copy of that certain letter dated February 23, 2001 from ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, excluding all enclosures referred to therein
(which letter is defined in the Purchase and Sale Agreement as the Disclosure
letter), is attached hereto as EXHIBIT 7.
37. This Amendment shall be deemed to amend the Purchase and Sale
Agreement solely as expressly set forth herein and, as amended hereby, the
Purchase and Sale Agreement is hereby ratified, approved and confirmed in every
aspect and is valid, binding and in full force and effect.
38. This Amendment shall be binding upon the Meditrust Parties, the
Subsidiaries and the Purchaser and all of their respective successors and
assigns.
39. This Amendment shall be governed by and construed in accordance
with the laws of the State of New York.
40. This Amendment 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.
41. EXHIBITS 1A, 1B, 2 through 7, ▇-▇▇, ▇-▇▇, ▇-▇, ▇-▇, ▇-▇▇ and N-17
attached hereto are hereby incorporated herein as a material part hereof.
16
42. The notice information for the Escrow Agent set forth in Section
12.7 of the Purchase and Sale Agreement is hereby deleted in its entirety and
restated to read as follows:
Chicago Title Insurance Company
▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇)▇▇▇-▇▇▇▇
[Remainder of Page Intentionally Left Blank]
17
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
signed in their respective names as an instrument under seal by their respective
duly authorized officers on the date and in the year first above written.
MEDITRUST PARTIES:
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 MORTGAGE INVESTMENTS, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Operating Officer
SUBSIDIARIES:
MEDITRUST OF MASSACHUSETTS, a Massachusetts
business trust
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Operating Officer
18
MEDITRUST OF BEDFORD, INC., a Delaware
corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Operating Officer
SAN ▇▇▇▇▇▇▇ HEALTH CARE
ASSOCIATES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: MEDITRUST OF CALIFORNIA, INC.,
a Delaware corporation, its sole general
partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Operating Officer
MEDITRUST OF CALIFORNIA , 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:
19
RECEIPT BY THE ESCROW AGENT
This Amendment, fully executed by the Meditrust Parties, the
Subsidiaries and the Purchaser, has been received by the Escrow Agent this ____
day of March, 2001 and by execution hereof, Escrow Agent hereby covenants and
agrees to be bound by the terms of the Purchase and Sale Agreement (as amended
by this Amendment) that are applicable to it.
ESCROW AGENT
CHICAGO TITLE INSURANCE COMPANY
By:
------------------------------------------
Name:
Title:
20