Exhibit 10.8
PLEDGE OF SHARES OF BENEFICIAL INTEREST AGREEMENT
THIS PLEDGE OF SHARES OF BENEFICIAL INTEREST AGREEMENT (this
"AGREEMENT") is made and given as of December 31, 2001 by FIVE STAR QUALITY
CARE, INC., a Maryland corporation (the "PLEDGOR"), for the benefit of each of
the other parties identified on the signature page hereof (together with their
respective successors and assigns, collectively, the "SECURED PARTIES").
W I T N E S S E T H:
WHEREAS, pursuant to a Master Lease Agreement, dated as of the date
hereof (the "MASTER LEASE"), the Secured Parties leased to Five Star Quality
Care Trust, a Maryland business trust (the "TENANT"), and the Tenant leased from
the Secured Parties, certain premises as more particularly described in the
Master Lease, subject to and upon the terms and conditions set forth therein;
and
WHEREAS, pursuant to a Guaranty Agreement, dated as of the date hereof
(the "GUARANTY"), Five Star Quality Care, Inc., a Maryland corporation (the
"GUARANTOR"), guaranteed to the Secured Parties the payment and performance of
all of the obligations of the Tenant to the Secured Parties with respect to the
Master Lease and other related documents, subject to and upon the terms and
conditions set forth therein; and
WHEREAS, the Pledgor owns all of the outstanding shares of beneficial
interest in the Tenant and is a wholly-owned subsidiary of the Guarantor; and
WHEREAS, the Pledgor shall derive direct substantial benefit from the
transactions contemplated by the Master Lease and the Guaranty; and
WHEREAS, it is a condition precedent to the Secured Parties' entering
into the Master Lease and accepting the Guaranty that the Pledgor pledge all of
the shares of beneficial interest in the Tenant to the Secured Parties as
security for the payment and performance of (i) all of the obligations of the
Tenant to the Secured Parties with respect to the Master Lease and other related
documents and (ii) all of the obligations of the Guarantor to the Secured
Parties with respect to the Guaranty and other related documents;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the mutual receipt and
legal sufficiency of which are hereby acknowledged, the Pledgor hereby agrees as
follows:
SECTION 1. CERTAIN TERMS. Capitalized terms used and not otherwise
defined in this Agreement shall have the meanings ascribed to such terms in the
Master Lease. The Master Lease, the Incidental Documents and the Guaranty are
herein collectively referred to as the "TRANSACTION DOCUMENTS."
SECTION 2. PLEDGE. The Pledgor hereby pledges to the Secured Parties
all of the shares of beneficial interest in the Tenant (the "PLEDGED SHARES")
listed in EXHIBIT A attached hereto and all other shares of beneficial interest
in the Tenant in which the Pledgor may have rights from time to time and any
other securities or other investment property and other collateral of the
Pledgor now owned or hereafter acquired which under this Agreement are required
to be pledged to the Secured Parties, and in each case, all certificates
representing such Pledged Shares or other investment property or collateral, and
all rights, options, warrants, stock or other securities or other property which
may hereafter be received, receivable or distributed in respect of the Pledged
Shares, together with all proceeds of the foregoing, including, without
limitation, all dividends, cash, notes, securities or other property from time
to time acquired, receivable or otherwise distributed in respect of, or in
exchange for, the foregoing, (the Pledged Shares and any additional securities
or collateral pledged hereunder, collectively, the "PLEDGED COLLATERAL"), and
the Pledgor hereby grants to the Secured Parties a security interest in all of
the Pledged Collateral and the proceeds thereof as security for the due and
punctual payment and performance of the Secured Obligations (as hereinafter
defined).
The Pledgor has delivered to and deposited with the Secured Parties any
and all certificates or other instruments representing the Pledged Collateral
and undated trust share powers endorsed in blank, as security for the payment
and performance of all of the Secured Obligations. If in the future the Pledgor
possesses or controls any other certificates or other instruments representing
the Pledged Collateral, the Pledgor shall immediately and without notice deliver
the same to the Secured Parties together with undated trust share powers
endorsed in blank, as security for the payment and performance of all of the
Secured Obligations.
SECTION 3. SECURED OBLIGATIONS. For purposes of this Agreement, the
term "SECURED OBLIGATIONS" shall mean the payment and performance of each and
every obligation of the Tenant and
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the Guarantor under the Transaction Documents or relating thereto, whether now
existing or hereafter arising, and including, without limitation, the payment of
the full amount of the Rent payable under the Master Lease.
SECTION 4. REPRESENTATIONS OF THE PLEDGOR. The Pledgor covenants that
the Pledged Shares are duly and validly pledged to the Secured Parties in
accordance with law and the Pledgor shall warrant and defend the Secured
Parties' right, title and security interest in and to the Pledged Shares against
the claims and demands of all persons whomsoever. The Pledgor represents and
warrants to the Secured Parties that the Pledgor has good and marketable title
to all the Pledged Shares, free and clear of all claims, mortgages, pledges,
liens, security interests and other encumbrances of every nature whatsoever;
that the Pledged Shares are not subject to any restriction on transfer contained
in the Declaration of Trust or any other charter documents of the Tenant or in
any agreement or instrument to which the Tenant or the Pledgor is a party or by
which the Tenant or the Pledgor is bound which would prohibit or restrict the
pledge of the Pledged Shares hereunder or the disposition thereof upon default
hereunder; that all of the Pledged Shares have been duly and validly issued and
are fully paid for and nonassessable; and that the Pledged Shares constitute all
of the presently issued and outstanding shares of the beneficial interests of
the Tenant.
SECTION 5. COVENANTS OF THE PLEDGOR. The Pledgor hereby covenants and
agrees that it shall not sell, convey or otherwise dispose of any of the Pledged
Collateral nor create, incur or permit to exist any pledge, mortgage, lien,
charge, encumbrance or any security interest whatsoever with respect to any of
the Pledged Collateral or the proceeds thereof, other than the liens on and
security interests in the Pledged Collateral created hereby. The Pledgor further
covenants and agrees that it shall not consent to or approve the issuance of any
additional shares of beneficial interest in the Tenant. The Pledgor further
covenants and agrees that, until the Secured Obligations are paid in full, the
Pledgor shall not change the state of its incorporation or its corporate name
without providing the Secured Parties with thirty (30) days' prior written
notice and making all filings and taking all such other actions as the Secured
Party determines are necessary or appropriate to continue or perfect the
security interest granted hereunder.
SECTION 6. FILING OF FINANCING STATEMENTS ETC. The Pledgor authorizes
the Secured Parties to file from time to time one or more financing statements
describing the Pledged
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Collateral. The Pledgor will cooperate with the Secured Parties at their request
from time to time in obtaining control agreements in form and substance
reasonably satisfactory to the Secured Parties with respect to any collateral
investment property, deposit accounts, or other Pledged Collateral as to which
the Secured Parties determine such agreements are necessary or appropriate to
perfect the security interest granted hereunder.
SECTION 7. DISTRIBUTIONS, ETC. Upon the dissolution, winding up,
liquidation or reorganization of the Tenant, whether in bankruptcy, insolvency
or receivership proceedings or upon an assignment for the benefit of creditors
or any other marshalling of the assets and liabilities of the Tenant, if any sum
shall be paid or any property shall be distributed upon or with respect to any
of the Pledged Collateral, such sum shall be paid over to the Secured Parties,
to be held as collateral security for the Secured Obligations. If any dividend
shall be declared on any of the Pledged Collateral (excluding cash dividends),
or any share of beneficial interest or fraction thereof shall be issued pursuant
to any split of beneficial interests involving any of the Pledged Collateral, or
any distribution of capital shall be made on any of the Pledged Collateral, or
any property shall be distributed upon or with respect to the Pledged Collateral
pursuant to recapitalization or reclassification of the capital of the Tenant,
the shares or other property so distributed shall be delivered to the Secured
Parties to be held as collateral security for the Secured Obligations.
SECTION 8. EVENT OF DEFAULT. For purposes of this Agreement, the term
"EVENT OF DEFAULT" shall mean (a) the occurrence of an Event of Default under
the Transaction Documents; (b) the failure of the Guarantor to comply with any
of its covenants or obligations under the Guaranty and the continuation thereof
for a period of ten (10) Business Days after written notice thereof; (c) the
failure of the Pledgor to comply with any of its covenants or obligations under
this Agreement and the continuation thereof for a period of ten (10) Business
Days after written notice thereof; or (d) any representation or warranty
contained herein or made by the Pledgor in connection herewith shall prove to
have been false or misleading in any material respect when made.
SECTION 9. REMEDIES. (a) Upon the occurrence and during the continuance
of an Event of Default, the Secured Parties may cause all or any of the Pledged
Collateral to be transferred into its name or into the name of its nominee or
nominees,
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subject to the provisions of the Uniform Commercial Code or other applicable
law.
(b) Upon the occurrence and during the continuance of an Event of
Default, the Secured Parties shall be entitled to exercise the voting power with
respect to the Pledged Collateral, to receive and retain, as collateral security
for the Secured Obligations, any and all dividends or other distributions at any
time and from time to time declared or made upon any of the Pledged Collateral,
and to exercise any and all such rights of payment, conversion, exchange,
subscription or any other rights, privileges or options pertaining to the
Pledged Collateral as if it were the absolute owner thereof, including, without
limitation, all such rights under the Declaration of Trust or any other charter
document of the Tenant, and further including, without limitation, the right to
exchange, at its discretion, any and all of the Pledged Collateral upon the
merger, consolidation, reorganization, recapitalization or other readjustment of
the Tenant, upon the exercise of any such right, privilege or option pertaining
to the Pledged Collateral, and in connection therewith, to deposit and deliver
any and all of the Pledged Collateral with any committee, depositary, transfer
agent, registrar or other designated agency upon such terms and conditions as
the Secured Parties may determine.
(c) Upon the occurrence and during the continuance of an Event of
Default, the Secured Parties shall have all of the rights and remedies of a
secured party under the Uniform Commercial Code or other applicable law and
shall have the right to sell, resell, assign and deliver all or any of the
Pledged Collateral in one or more parcels at any exchange or broker's board or
at public or private sale. The Secured Parties shall give the Pledgor at least
ten (10) days' prior written notice of the time and place of any public sale
thereof or of the time after which any private sale or any other intended
disposition thereof is to be made. Any such notice shall be deemed to meet any
requirement hereunder or under any applicable law (including the Uniform
Commercial Code) that reasonable notification be given of the time and place of
such sale or other disposition. Such notice may be given without any demand of
performance or other demand, all such demands being hereby expressly waived by
the Pledgor to the extent permitted by applicable law. All such sales shall be
at such commercially reasonable price or prices as the Secured Parties shall
deem best and either for cash or on credit or for future delivery (without
assuming any responsibility for credit risk). At any such sale or sales, the
Secured Parties may purchase any or all of the Pledged
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Collateral to be sold thereat upon such terms as the Secured Parties may deem
best. Upon any such sale or sales, the Pledged Collateral so purchased shall be
held by the purchaser absolutely free from any claims or rights of any kind or
nature of the Pledgor, including any equity of redemption and any similar
rights, all such equity of redemption and any similar rights being hereby
expressly waived and released by the Pledgor to the extent permitted by
applicable law. In the event any consent, approval or authorization of any
governmental agency will be necessary to effectuate any such sale or sales, the
Pledgor shall execute, and hereby agrees to cause the Tenant to execute, all
such applications or other instruments as may be required. The proceeds of any
such sale or sales, together with any other additional collateral security at
the time received and held hereunder, shall be received and applied: FIRST, to
the payment of all costs and expenses of such sale, including attorneys' fees;
and SECOND, to the payment of the Secured Obligations in such order of priority
as the Secured Parties shall determine; and any surplus thereafter remaining
shall be paid to the Pledgor or to whomever may be legally entitled thereto
(including, if applicable, any subordinated creditor of the Pledgor).
The Pledgor recognizes that the Secured Parties may be unable to effect
a public sale of all or a part of the Pledged Collateral by reason of certain
prohibitions contained in the Securities Act of 1933, and may be compelled to
resort to one or more private sales to a restricted group of purchasers who will
be obliged to agree, among other things, to acquire such Pledged Collateral for
their own accounts, for investment and not with a view to the distribution or
resale thereof. The Pledgor agrees that private sales so made may be at prices
and upon other terms less favorable to the seller than if such Pledged
Collateral were sold at public sales, and that the Secured Parties shall have no
obligation to delay sale of any such Pledged Collateral for the period of time
necessary to permit such Pledged Collateral to be registered for public sale
under the Securities Act of 1933. The Pledgor agrees that private sales made
under the foregoing circumstances may be deemed to have been made in a
commercially reasonable manner. Nothing herein shall be deemed to require the
Pledgor to effect a registration of the Pledged Collateral under the Securities
Act of 1933.
(d) Upon the occurrence and during the continuance of any Event of
Default, the Secured Parties, in their discretion, may demand, ▇▇▇ for and/or
collect any money or property at any time due, payable or receivable, to which
it may be entitled hereunder, on account of or in exchange for any of the
Pledged
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Collateral. Upon the occurrence and during the continuance of any Event of
Default, the Secured Parties shall further have the right, for and in the name,
place and stead of the Pledgor, to execute endorsements, assignments, or other
instruments of conveyance or transfer with respect to all or any of the Pledged
Collateral.
(e) The Secured Parties shall not be obligated to do any of the acts
hereinabove authorized and in the event that the Secured Parties elect to do any
such act, the Secured Parties shall not be responsible to the Pledgor, other
than for gross negligence or willful misconduct.
(f) The Secured Parties shall have no obligation to marshal any assets
in favor of the Pledgor, or against or in payment of the Secured Obligations or
any other obligation owed to the Secured Parties by the Pledgor or any other
person.
SECTION 10. RIGHTS OF SECURED PARTIES. No course of dealing between the
Pledgor and the Secured Parties nor any failure to exercise, nor any delay in
exercising, on the part of the Secured Parties, any right, power or privilege
hereunder or under any of the Secured Obligations, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or thereunder preclude any other or further exercise thereof
or the exercise of any other right, power or privilege. The rights and remedies
herein provided and provided under any of the Secured Obligations are cumulative
and are in addition to, and not exclusive of, any rights or remedies provided by
law, including, without limitation, the rights and remedies of a Secured Parties
under the Uniform Commercial Code.
SECTION 11. ASSIGNMENT, ETC. No waiver by the Secured Parties or by any
other holder of Secured Obligations of any default shall be effective unless in
writing nor operate as a waiver of any other default or of the same default on a
future occasion. In the event of a sale or assignment by any Secured Party of
its interest under the Transaction Documents, such Secured Party may assign or
transfer its rights and interest under this Agreement in whole or in part to the
purchaser or assignee of such interest, whereupon such purchaser or purchasers
shall become vested with all of the powers and rights given to such Secured
Party hereunder, and such Secured Party shall thereafter be forever released and
fully discharged from any liability or responsibility thereafter arising
hereunder with respect to the rights and interests so assigned.
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SECTION 12. DUTY OF SECURED PARTIES. Beyond the exercise of reasonable
care to assure the safe custody of the Pledged Collateral while held hereunder,
the Secured Parties shall have no duty or liability to collect any sums due in
respect thereof or to protect or preserve rights pertaining thereto, and shall
be relieved of all responsibility for the Pledged Collateral upon surrendering
the same to the Pledgor.
SECTION 13. WAIVERS, ETC. To the extent permitted by applicable law,
the Pledgor, on its own behalf and on behalf of its successors and assigns,
hereby waives presentment, demand, payment, notice of dishonor, protest and,
except as otherwise provided herein, all other demands and notices in connection
with this Agreement or the enforcement of the rights of the Secured Parties
hereunder or in connection with any Secured Obligations. The Secured Parties may
release, supersede, exchange or modify any collateral security it may from time
to time hold and release, surrender or modify the liability of any third party
without giving notice hereunder to the Pledgor. The Secured Parties shall be
under no duty to exhaust its rights against any such collateral security or any
such third party before realizing on the Pledged Collateral. Such modifications,
changes, renewals, releases or other actions shall in no way affect the
Pledgor's obligations hereunder.
The Pledgor further waives any right it may have under the Constitution
of the Commonwealth of Massachusetts (or under the constitution of any other
state in which the any of the Pledged Collateral may be located), or under the
Constitution of the United States of America, to notice (except for notice
specifically required hereby) or to a judicial hearing prior to the exercise of
any right or remedy provided by this Agreement to the Secured Parties, and
waives its rights, if any, to set aside or invalidate any sale duly consummated
in accordance with the foregoing provisions hereof on the grounds (if such be
the case) that the sale was consummated without a prior judicial hearing. THE
PLEDGOR'S WAIVERS UNDER THIS SECTION 13 HAVE BEEN MADE VOLUNTARILY,
INTELLIGENTLY AND KNOWINGLY AND AFTER THE PLEDGOR HAS BEEN APPRISED AND
COUNSELED BY ITS ATTORNEYS AS TO THE NATURE THEREOF AND ITS POSSIBLE ALTERNATIVE
RIGHTS.
SECTION 14. FURTHER ASSURANCES AS TO COLLATERAL; ATTORNEY-IN-FACT. From
time to time hereafter, the Pledgor shall execute and deliver, or will cause to
be executed and delivered, such additional instruments, certificates or
documents (including, without limitation, financing statements, renewal
statements, collateral assignments and other security documents), and shall take
all such actions, as the Secured Parties may reasonably
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request, for the purposes of implementing or effectuating the provisions of this
Agreement or of more fully perfecting or renewing the Secured Parties' rights
with respect to the Pledged Collateral (or with respect to any additions thereto
or replacements or proceeds thereof or with respect to any other property or
assets hereafter acquired by the Pledgor which may be deemed to be a part of the
Pledged Collateral) pursuant hereto and thereto. The Secured Parties are 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 and taking any
action, including, without limitation, executing, delivering and filing
applications, certificates, instruments and other documents and papers with
governmental authorities, and executing any instruments, including without
limitation, assignments, conveyances and transfers which are required to be
taken or executed by the Pledgor under this Agreement, on its behalf and in its
name which appointment is coupled with an interest, is irrevocable and durable
and shall survive the subsequent dissolution, disability or incapacity of the
Pledgor.
SECTION 15. NOTICES. (a) Any and all notices, demands, consents,
approvals, offers, elections and other communications required or permitted
under this Agreement 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).
(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
electronic confirmation of 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.
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(c) All such notices shall be addressed,
if to the Secured Parties to:
c/o Senior Housing Properties Trust
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
[Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇]
if to the Pledgor to:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
[Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇]
(d) By notice given as herein provided, the parties hereto and their
respective successor 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 or to such other address as the party to whom such notice is directed
may have designated in writing to the other parties hereto.
SECTION 16. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, and the term "Secured Parties" shall be deemed to
include any other holder or holders of any of the Secured Obligations. Where the
context so permits or requires, terms defined herein in the singular number
shall include the plural, and in the plural number, the singular. This Agreement
may be executed in any number of counterparts and by the different parties on
separate counterparts, each of which, when so executed and delivered, shall be
an original and all of which shall together constitute one and the same
agreement.
SECTION 17. APPOINTMENT OF AGENT FOR SECURED PARTIES. Each of the
Secured Parties hereby appoints SPTMNR Properties Trust as its agent for the
following purposes under this Agreement (including, without limitation, the full
power and authority to act of the Secured Parties' behalf for such purposes):
(i) to give or receive notices, demands, claims and other communications on
behalf of the Secured Parties under this Agreement and (ii) to receive and hold
any and all certificates
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or other instruments representing the Pledged Collateral which are to be
delivered from time to time by the Pledgor to the Secured Parties in accordance
with the terms and conditions of this Agreement.
SECTION 18. REINSTATEMENT. This Agreement shall continue to be
effective, or be reinstated, as the case may be, if at any time any amount
received by the Secured Parties in respect of the Pledged Collateral is
rescinded or must otherwise be restored or returned by the Secured Parties upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Pledgor or upon the appointment of any intervenor or conservator of, or trustee
or similar official for the Pledgor or any substantial part of its or property,
or otherwise, all as though such payments had not been made.
SECTION 19. RESTRICTIONS ON TRANSFER. To the extent that any
restrictions imposed by the Declaration of Trust or any other charter documents
of the Tenant or any other document or instrument would in any way affect or
impair the pledge of the Pledged Collateral hereunder or the exercise by the
Secured Parties of any right granted hereunder including, without limitation,
the right of the Secured Parties to dispose of the Pledged Collateral upon the
occurrence of any Event of Default, the Pledgor hereby waives such restrictions,
and the Pledgor hereby agrees that it will take any action which the Secured
Parties may reasonably request in order that the Secured Parties may obtain and
enjoy the full rights and benefits granted to the Secured Parties by this
Agreement free of any such restrictions.
SECTION 20. APPLICABLE LAW. This Agreement and any other instruments
executed and delivered to evidence, complete or perfect the transactions
contemplated hereby and thereby shall be interpreted, construed, applied and
enforced in accordance with the laws of the Commonwealth of Massachusetts
applicable to contracts between residents of Massachusetts which are to be
performed entirely within Massachusetts regardless of (i) where any such
instrument is executed or delivered; or (ii) where any payment or other
performance required by any such instrument is made or required to be made; or
(iii) where any breach of any provision of any such instrument occurs, or any
cause of action otherwise accrues; or (iv) where any action or other proceeding
is instituted or pending; or (v) the nationality, citizenship, domicile,
principal place of business, or jurisdiction of organization or domestication of
any party; or (vi) whether the laws of the forum jurisdiction otherwise would
apply the laws of a jurisdiction other than the Commonwealth of Massachusetts;
or (vii) any combination of the foregoing.
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SECTION 21. ARBITRATION. The Secured Parties or the Pledgor may elect
to submit any dispute hereunder that has an amount in controversy in excess of
$250,000 to arbitration hereunder. Any such dispute shall be resolved in
accordance with the Commercial Arbitration Rules of the American Association
then pertaining and the decision of the arbitrators with respect to such dispute
shall be binding, final and conclusive on the parties.
In the event the Secured Parties or the Pledgor shall elect to submit
any such dispute to arbitration hereunder, the Secured Parties and the Pledgor
shall each appoint and pay all fees of a fit and impartial person as arbitrator
with at least ten (10) years' recent professional experience in the general
subject matter of the dispute. Notice of such appointment shall be sent in
writing by each party to the other, and the arbitrators so appointed, in the
event of their failure to agree within thirty (30) days after the appointment of
the second arbitrator upon the matter so submitted, shall appoint a third
arbitrator. If either the Secured Parties or the Pledgor shall fail to appoint
an arbitrator, as aforesaid, for a period of twenty (20) days after written
notice from the other party to make such appointment, then the arbitrator
appointed by the party having made such appointment shall appoint a second
arbitrator and the two (2) so appointed shall, in the event of their failure to
agree upon any decision within thirty (30) days thereafter, appoint a third
arbitrator. If such arbitrators fail to agree upon a third arbitrator within
forty five (45) days after the appointment of the second arbitrator, then such
third arbitrator shall be appointed by the American Arbitration Association from
its qualified panel of arbitrators, and shall be a person having at least ten
(10) years' recent professional experience as to the subject matter in question.
The fees of the third arbitrator and the expenses incident to the proceedings
shall be borne equally between the Secured Parties and the Pledgor, unless the
arbitrators decide otherwise. The fees of respective counsel engaged by the
parties, and the fees of expert witnesses and other witnesses called for the
parties, shall be paid by the respective party engaging such counsel or calling
or engaging such witnesses.
The decision of the arbitrators shall be rendered within thirty (30)
days after appointment of the third arbitrator. Such decision shall be in
writing and in duplicate, one counterpart thereof to be delivered to the Secured
Parties and one to the Pledgor. A judgment of a court of competent jurisdiction
may be entered upon the award of the arbitrators in
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accordance with the rules and statutes applicable thereto then obtaining.
The Secured Parties and the Pledgor acknowledge and agree that, to the
extent any such dispute shall involve any Manager and be subject to arbitration
pursuant to such Manager's Management Agreement, the Secured Parties and the
Pledgor shall cooperate to consolidate any such arbitration hereunder and under
such Management Agreement into a single proceeding.
SECTION 22. SEVERABILITY. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby, but this
Agreement shall be reformed and construed and enforced to the maximum extent
permitted by applicable law.
SECTION 23. ENTIRE CONTRACT. This Agreement constitutes the entire
agreement between 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.
SECTION 24. HEADINGS; COUNTERPARTS. Headings in this Agreement are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof. This Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute one
instrument, and in pleading or proving any provision of this Agreement, it shall
not be necessary to produce more than one of such counterparts.
SECTION 25. NONLIABILITY OF TRUSTEES. THE DECLARATIONS OF TRUST
ESTABLISHING THE SECURED PARTIES, COPIES OF WHICH, TOGETHER WITH ALL AMENDMENTS
THERETO (THE "DECLARATIONS"), ARE DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS
AND TAXATION OF THE STATE OF MARYLAND, PROVIDE THAT THE NAMES "HRES2 PROPERTIES
TRUST," "SPTIHS PROPERTIES TRUST," "SPT-MICHIGAN TRUST" AND "SPTMNR PROPERTIES
TRUST" REFER TO THE TRUSTEES UNDER EACH DECLARATION COLLECTIVELY AS TRUSTEES,
BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER,
EMPLOYEE OR AGENT OF THE SECURED PARTIES SHALL BE HELD TO ANY PERSONAL
LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF OR CLAIM AGAINST, THE
SECURED PARTIES. ALL PERSONS DEALING WITH THE SECURED PARTIES, IN ANY WAY, SHALL
LOOK ONLY TO THE ASSETS OF THE SECURED PARTIES FOR THE PAYMENT OF ANY SUM OR THE
PERFORMANCE OF ANY OBLIGATION.
-13-
WITNESS the execution hereof under seal as of the date above first
written.
PLEDGOR:
FIVE STAR QUALITY CARE, INC.,
a Maryland corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
-----------------------------
Treasurer and Chief Financial
Officer
SECURED PARTIES:
HRES2 PROPERTIES TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Its: President
-------------------------
SPTIHS PROPERTIES TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Its: President
-------------------------
SPT-MICHIGAN TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Its: President
-------------------------
SPTMNR PROPERTIES TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Its: President
-------------------------
-14-
Omitted Exhibits
The following exhibit to the Pledge of Shares of Beneficial Interest
Agreement has been omitted:
Exhibit Letter Exhibit Title
-------------- --------------
A Pledged Shares of Beneficial
Interest
The Registrant agrees to furnish supplementally a copy of the
foregoing omitted exhibit to the Securities and Exchange Commission upon
request.