EXHIBIT 10.22
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Agreement") is entered into as of this
25th day of October, 2002, by and among (i) each of the parties identified on
the signature page hereof as the Subtenants (collectively, the "Subtenants"),
and the party identified on the signature page hereof as the Secured Party (the
"Secured Party").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Lease Agreement, dated as of October
25, 2002 (together with all amendments, modifications and supplements thereto,
collectively, the "Lease"), the Secured Party leased to FVE-CHS LLC, a Delaware
limited liability company (the "Tenant"), and the Tenant leased from the Secured
Party, certain premises as more particularly described in the Lease, subject to
and upon the terms and conditions set forth in the Lease; and
WHEREAS, pursuant to various Sublease Agreements as further described
on Exhibit A attached hereto (collectively, the "Subleases"), the Tenant has
subleased the premises demised under the Lease to the subtenants identified on
said Exhibit A (collectively, the "Subtenants"), subject to and upon the terms
and conditions set forth in the Subleases; and
WHEREAS, the Lease provides that any assignment or transfer of the
Tenant's interest under the Lease shall be subject to such assignee's or
transferee's execution of a security agreement granting the Secured Party a
security interest in all of such assignee's or transferee's right, title and
interest in and to any personal property, intangibles and fixtures (other than
accounts receivable) with respect to any Leased Property which is affected by
any such assignment or transfer to secure Tenant's obligations under the Lease
and the Incidental Documents (collectively, the "Obligations"), which security
agreement shall be in form and substance satisfactory to the Secured Party in
its sole discretion; and
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, and in accordance with the above described provisions
of the Lease, the Subtenants hereby agree as follows:
Section 1. Definitions. As used in this Agreement, the following terms
shall have the meanings specified below. Except as otherwise defined, terms
defined in the Uniform Commercial
Code and used herein without definition shall have the meanings given such terms
in the Uniform Commercial Code.
"Affiliated Person" shall have the meaning given such term in the
Lease.
"Business Day" shall have the meaning given such term in the Lease.
"Collateral" shall mean all of each Subtenant's right, title and
interest in and under or arising out of all and any personal property,
intangibles and fixtures of any type or description (other than Excluded
Collateral), wherever located and now existing or hereafter arising, or which
constitute or arise from the operation, maintenance or repair of its Subleased
Properties or any portion thereof, together with any and all additions and
accessions thereto and replacements, products, proceeds (including, without
limitation, proceeds of insurance) and supporting obligations thereof,
including, but not limited to, the following:
(a) all goods, including, without limitation, all Equipment; and
(b) all General Intangibles; and
(c) all other personal property or fixtures of any nature
whatsoever which relate to the operation, maintenance or
repair of each Subleased Property, or any portion thereof, and
all property from time to time described in any financing
statement signed by the Tenant naming the Secured Party as
Secured Party; and
(d) all claims, rights, powers or privileges and remedies relating
to the foregoing or arising in connection therewith,
including, without limitation, all Licenses and Permits which
Tenant legally may grant a security interest in, rights to
make determinations, to exercise any election (including, but
not limited to, election of remedies) or option or to give or
receive any notice, consent, waiver or approval; all liens,
security, guaranties, endorsements, warranties and indemnities
and all insurance, eminent domain and condemnation awards and
claims therefor relating thereto or arising in connection
therewith; all rights to property forming the subject matter
of any of the foregoing, including, without limitation, rights
to stoppage in transit and rights to returned or
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repossessed property; all writings relating to the foregoing
or arising in connection therewith; and
(e) all contract rights, general intangibles and other property
rights of any nature whatsoever arising out of or in
connection with any of the foregoing (other than Excluded
Collateral), including, without limitation, payments due or to
become due, whether as repayments, reimbursements, contractual
obligations, indemnities, damages or otherwise.
"Equipment" shall mean all buildings, structures, improvements,
fixtures and items of machinery, equipment and other tangible personal property
which constitute, arise from or relate to the operation, maintenance or repair
of each Subtenant's Subleased Properties or any portion thereof, together with
all repairs, replacements, improvements, substitutions, extensions or renewals
thereof or additions thereto, all parts, additions and accessories incorporated
therein or affixed thereto, and all "equipment" as such term is defined in the
Uniform Commercial Code, and all cash and non-cash proceeds therefrom.
"Event of Default" shall have the meaning given such term in Section 6.
"Excluded Collateral" shall mean Accounts or Chattel Paper, Support
Obligations, General Intangibles or Deposit Accounts relating to such Accounts
or Chattel Paper, Instruments or Investment Property evidencing or arising from
such Accounts or Chattel Paper, any documents, books, records or other
information (including, without limitation, computer programs, tapes, discs,
punch cards, data processing software and related property and rights)
maintained with respect to any of the foregoing or any Proceeds of any of the
foregoing.
"Facilities" shall have the meaning given such term in the Lease.
"General Intangibles" shall mean all present and future general
intangibles and contract rights (other than Excluded Collateral) which
constitute, arise from or relate to the operation, maintenance or repair of each
Subtenant's Subleased Properties, or any portion thereof, including, but not
limited to, all causes of action, corporate or business records, inventions,
designs, patents, patent applications, trademarks, trademark registrations and
applications therefor, goodwill, trade names, trade secrets, trade processes,
copyrights, copyright registrations and applications therefor, franchises,
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customer lists, computer programs, claims under guaranties, tax refund claims,
rights and claims against carriers and shippers, leases, claims under insurance
policies, all rights to indemnification and all other intangible personal
property of every kind and nature which constitutes, arises from or relates to
the operation, maintenance or repair of such Subleased Properties, or any
portion thereof.
"Incidental Documents" shall have the meaning given such term in the
Lease.
"Instrument" shall have the meaning given such term in Article 9 of the
Uniform Commercial Code.
"Lease" shall have the meaning given such term in the preambles to this
Agreement.
"Leased Property" shall have the meaning given such term in the Lease.
"Licenses" shall mean all certificates of need (if any), licenses,
permits, rights of use, covenants or rights otherwise benefiting or permitting
the use and operation of each Subtenant's Subleased Properties or any part
thereof pertaining to the operation, maintenance or repair of such Subleased
Property or any portion thereof.
"Obligations" shall have the meaning given such term in the preambles
to this Agreement.
"Overdue Rate" shall have the meaning given such term in the Lease.
"Permits" shall mean all permits, approvals, consents, waivers,
exemptions, variances, franchises, orders, authorizations, rights and licenses
obtained or hereafter obtained from any federal, state or other governmental
authority or agency relating to the operation, maintenance or repair, of each
Subtenant's Subleased Properties, or any portion thereof.
"Person" shall have the meaning given such term in the Lease.
"Property" shall have the meaning given such term in the Lease.
"Rent" shall have the meaning given such term in the Lease.
"Subleased Properties" shall have the meaning given such term in the
Subleases.
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"Subleases" shall have the meaning given such term in the preamble to
this Agreement.
"Subtenant" shall have the meaning given such term in the preamble to
this Agreement.
"Tenant" shall have the meaning given such term in the preamble to this
Agreement.
"Uniform Commercial Code" means Article 9 of the Uniform Commercial
Code as in effect in the Commonwealth of Massachusetts from time to time.
Section 2. Security Interest. As security for the prompt payment and
performance of all the Obligations, each Subtenant hereby grants, pledges,
transfers and assigns to the Secured Party, its successors and assigns and all
other holders from time to time of the Obligations, a continuing security
interest under the Uniform Commercial Code from time to time in effect in the
jurisdiction in which any of the Collateral is located in and a continuing lien
upon all of such Subtenant's right, title and interest in the Collateral,
together with any and all additions thereto and replacements, products and
proceeds thereof, whether now existing or hereafter arising or acquired and
wherever located.
Section 3. General Representations, Warranties and Covenants. Each
Subtenant represents, warrants and covenants, which representations, warranties
and covenants shall survive execution and delivery of this Agreement, as
follows:
(a) Each of the warranties and representations of such Subtenant
contained herein or in any other document executed in connection herewith are
true and correct on the date hereof.
(b) Except for the lien granted to the Secured Party pursuant to
this Security Agreement and any liens permitted under the Lease, such Subtenant
is, and as to the Collateral acquired from time to time after the date hereof
such Subtenant will be, the owner of all the Collateral free from any lien,
security interest, encumbrance or other right, title or interest of any Person,
except for the security interest of the Secured Party therein, and the
Subtenants shall defend the Collateral against all claims and demands of all
Persons at any time claiming the same or any interest therein adverse to the
Secured Party. The lien granted in this Agreement by such Subtenant to the
Secured Party in the Collateral is not prohibited by and does not constitute a
default under any agreements or other
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instruments constituting a part of the Collateral, and no consent is required of
any Person to effect such lien which has not been obtained.
(c) Except as permitted under the Lease, there is no financing
statement (or similar statement or instrument of registration under the law of
any jurisdiction) now on file or registered in any public office covering any
interest of any kind in the Collateral, or intended so to be, which has not been
terminated, and so long as this Agreement remains in effect or any of the
Obligations or any obligations of any Affiliated Person of such Subtenant to the
Secured Party remain unpaid, such Subtenant will not execute and there will not
be on file in any public office any financing statement (or similar statement or
instrument of registration under the law of any jurisdiction) or statements
relating to the Collateral, except financing statements filed or to be filed in
respect of and covering the security interest of the Secured Party.
(d) The chief executive office and the principal place of business
of such Subtenant are as set forth on Schedule 1 and such Subtenant will not
move its chief executive office nor establish any other principal place of
business except to such new location as such Subtenant may establish in
accordance with this Section 3(d). The location of each Facility comprising a
portion of such Subtenant's Subleased Properties are as set forth in Schedule 2.
The originals of all documents evidencing Collateral and the only original books
of account and records of such Subtenant relating thereto are, and will continue
to be, kept at such chief executive office or the applicable Facility, as the
case may be, or at such new location as the Subtenants may establish in
accordance with this Section 3(d). No Subtenant shall move its chief executive
office or establish any other principal place of business until (i) such
Subtenant shall have given to the Secured Party not less than ten (10) days'
prior written notice of its intention to do so, which notice shall clearly
describe such new location and provide such other information in connection
therewith as the Secured Party may reasonably request, and (ii) with respect to
such new location, such Subtenant shall have taken such action, satisfactory to
the Secured Party (including, without limitation, all action required by Section
5), to maintain the security interest of the Secured Party in the Collateral.
(e) All tangible personal property owned on the date hereof by
such Subtenant to be used in connection with the operation or maintenance of
each Subleased Property of such Subtenant, or any portion thereof, is located at
each applicable
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Subleased Property or is in transit to such Subleased Property from the vendor
thereof. Each Subtenant agrees that (i) all such property held by such Subtenant
on the date hereof, once at each applicable Subleased Property, shall remain at
such Subleased Property and (ii) all such property subsequently acquired by such
Subtenant shall immediately upon acquisition be transferred to and remain at the
applicable Subleased Property.
(f) Such Subtenant's corporate name and organizational
identification number are as set forth on Schedule 1. The name under which each
of the Facilities is operated is set forth on Schedule 2. Each Subtenant agrees
that it shall not (i) change such name without providing the Secured Party 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, (ii) change its
corporate organizational number, nor (iii) conduct its business in any other
name or take title to any Collateral in any other name while this Agreement
remains in effect. Except as otherwise set forth on Schedule 1, no Subtenant has
ever had any other name or conducted business in any other name in any
jurisdiction. Each Subtenant's organizational structure is as set forth on
Schedule 1. Subject to the terms and conditions of the Lease and its Sublease,
no Subtenant shall change its organizational structure or jurisdiction of
organization without giving at least thirty (30) days' prior written notice
thereof to the Secured Party.
(g) The Secured Party is authorized (but is under no obligation)
to make, upon ten (10) Business Days' notice to any applicable Subtenant (except
in the case of exigent circumstances, in which circumstances upon such notice,
if any, as may then be reasonably practical), any payments which in the Secured
Party's opinion are necessary to:
(i) discharge any liens which have or may take priority over
the lien hereof; and
(ii) pay all premiums payable on the insurance policies referred
to in the Lease or any other document or agreement executed
in connection therewith or herewith, upon the failure of
the Tenant to make such payments within the time permitted
therein.
No Subtenant shall have any claim against the Secured Party by reason of its
decision not to make any payments or perform such obligations permitted under
this Section 3(g). Each Subtenant
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shall repay to the Secured Party any sums paid by the Secured Party upon demand.
Any sums paid and expenses incurred by the Secured Party pursuant to this
paragraph shall bear interest at the Overdue Rate.
(h) If any of the Collateral at any time becomes evidenced by an
Instrument, the Subtenant which owns such Collateral shall promptly deliver such
Instrument to the Secured Party, appropriately endorsed to the order of the
Secured Party, to be held pursuant to this Agreement.
(i) No Subtenant shall sell, transfer, change the registration, if
any, of, dispose of, attempt to dispose of, or substantially modify or abandon
the Collateral or any material part thereof, other than as permitted under the
Lease, without the prior written consent of the Secured Party. Except as
permitted under the Lease, no Subtenant shall create, incur, assume or suffer to
exist any lien upon any of the Collateral without the prior written consent of
the Secured Party.
(j) No Subtenant shall assert against the Secured Party any claim
or defense which such Subtenant may have against any seller of the Collateral or
any part thereof or against any Person with respect to the Collateral or any
part thereof.
(k) Each Subtenant shall, upon demand, pay to the Secured Party
the amount of any and all reasonable expenses, including the reasonable fees and
expenses of its counsel and of any experts and agents, which the Secured Party
may incur in connection with (i) the administration of this Agreement, (ii) the
custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Collateral, (iii) the exercise or enforcement of
any of the rights of the Secured Party hereunder and under such other agreements
or (iv) the failure by such Subtenant to perform or observe any of the
provisions hereof.
(l) Each Subtenant shall indemnify and hold harmless the Secured
Party from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever which may be imposed on, incurred by or asserted
against the Secured Party in any way relating to or arising out of this
Agreement or arising out of such Subtenant's obligations under any other
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or the enforcement of any of the terms hereof or
of any such other documents.
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Section 4. Special Provisions Concerning Equipment. No Subtenant shall
impair the rights of the Secured Party in the Equipment. Regardless of the
manner of the affixation of any Equipment to real property, the Equipment so
attached shall at all times constitute and remain personal property. Each
Subtenant retains all liability and responsibility in connection with its
Equipment and the liability of the Subtenant to pay the Obligations shall in no
way be affected or diminished by reason of the fact that such Equipment may be
lost, destroyed, stolen or damaged or for any reason whatsoever have become
unavailable to such Subtenant. Upon the request of the Secured Party, any
Subtenant shall provide to the Secured Party a current list its Equipment.
Section 5. Financing Statements; Documentary Stamp Taxes.
(a) Each Subtenant shall, at its own expense, make, execute,
endorse, acknowledge, file and/or deliver to the Secured Party from time to time
such lists, descriptions and designations of inventory, warehouse receipts,
bills of lading, documents of title, vouchers, invoices, schedules, confirmatory
assignments, conveyances, financing statements, transfer endorsements, powers of
attorney, certificates, reports and other assurances or instruments and take
such further steps relating to the Collateral and other property or rights
covered by the security interest hereby granted, which the Secured Party
reasonably deems appropriate or advisable to perfect, preserve or protect its
security interest in the Collateral. Each Subtenant authorizes the Secured Party
to file any such financing statements without the signature of the Tenant and
the Tenant will pay all applicable filing fees and related expenses. To the
extent permitted by law, a carbon, photographic or other reproduction of this
Agreement or a financing statement shall be sufficient as a financing statement.
(b) Each Subtenant shall procure, pay for, affix to any and all
documents and cancel any documentary tax stamps required by and in accordance
with, applicable law with respect to its Collateral, and the Subtenants shall
indemnify and hold harmless the Secured Party from and against any liability
(including interest and penalties) in respect of such documentary stamp taxes.
Section 6. 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 Lease or any document or agreement executed in connection therewith; (b) the
failure of any Subtenant to comply with any of its covenants or obligations
under this Agreement and the continuance thereof for
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a period of ten (10) Business Days after written notice thereof; (c) any
representation or warranty contained herein or made by any Subtenant in
connection herewith shall prove to have been false or misleading in any material
respect when made; or (d) the occurrence of any default or event of default
under any document, instrument or agreement evidencing the Obligations.
Section 7. Remedies.
(a) Upon the occurrence and during the continuance of an Event of
Default, in addition to any rights and remedies now or hereafter granted under
applicable law, under the Lease or under any other documents or agreements
entered into in connection herewith or therewith, and not by way of limitation
of any such rights and remedies, the Secured Party shall have all of the rights
and remedies of a secured party under the Uniform Commercial Code as enacted in
any applicable jurisdiction, and the right, without notice to, or assent by, any
Subtenant, in the name of such Subtenant or in the name of the Secured Party or
otherwise:
(i) with respect to the General Intangibles to ask for, demand,
collect, receive, compound and give acquittance therefor or
any part thereof, to extend the time of payment of,
compromise or settle for cash, credit or otherwise, and
upon any terms and conditions, any thereof, to exercise and
enforce any rights and remedies in respect thereof, and to
file any claims, commence, maintain or discontinue any
actions, suits or other proceedings deemed by the Secured
Party necessary or advisable for the purpose of collecting
or enforcing payment and performance thereof;
(ii) to take possession of any or all of the Collateral and to
use, hold, store, operate, merge and/or control the same
and to exclude such Subtenant and all Persons claiming
under it wholly or partly therefrom, and, for that purpose,
to enter, with the aid and assistance of any Person or
Persons and with or without legal process, any premises
where the Collateral, or any part thereof, are, or may be,
placed or assembled, and to remove any such Collateral;
(iii) from time to time, at the expense of such Subtenant, to
make all such repairs,
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replacements, alterations, additions and improvements to
and of the Collateral as the Secured Party may reasonably
deem proper; to carry on the business and to exercise all
rights and powers of such Subtenant in respect to the
Collateral, as the Secured Party shall deem best, including
the right to enter into any and all such agreements with
respect to the leasing, management and/or operation of the
Collateral or any part thereof as the Secured Party may see
fit; to collect and receive all rents, issues, profits,
fees, revenues and other income of the same and every part
thereof which rents, issues, profits, fees, revenues and
other income may be applied to pay the expenses of holding
and operating the Collateral and of conducting the business
thereof, and of all maintenance, repairs, replacements,
alterations, additions and improvements, and to make all
payments which the Secured Party may be required or may
elect to make, if any, for taxes, assessments, insurance
and other charges upon the Collateral or any part thereof,
and all other payments which the Secured Party may be
required or authorized to make under any provision of this
Agreement (including, without limitation, reasonable legal
costs and attorneys' fees);
(iv) to execute any instrument and do all other things necessary
and proper to protect and preserve and realize upon the
Collateral and the other rights contemplated hereby;
(v) upon notice to such effect, to require any Subtenant to
deliver, at such Subtenant's expense, any or all Collateral
which is reasonably movable to the Secured Party at a place
designated by the Secured Party, and after delivery thereof
the Tenant shall have no further claim to or interest in
the Collateral; and
(vi) without obligation to resort to other security, at any time
and from time to time, to sell, re-sell, assign and deliver
all or any of the Collateral, in one or more parcels at the
same or different times, and all right, title and interest,
claim and demand therein and right of
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redemption thereof, at public or private sale, for cash,
upon credit or for future delivery, and at such price or
prices and on such terms as the Secured Party may
determine, with the amounts realized from any such sale to
be applied to the Secured Obligations in the manner
determined by the Secured Party.
Each Subtenant hereby agrees that all of the foregoing may be effected without
demand, advertisement or notice (except as hereinafter provided or as may be
required by law), all of which (except as hereinafter provided) are hereby
expressly waived, to the maximum extent permitted by law. The Secured Party
shall not be obligated to do any of the acts hereinabove authorized and in the
event that the Secured Party elects to do any such act, the Secured Party shall
not be responsible to any Subtenant.
(b) Upon the occurrence and during the continuance of an Event of
Default, the Secured Party may take legal proceedings for the appointment of a
receiver or receivers (to which the Secured Party shall be entitled as a matter
of right) to take possession of the Collateral pending the sale thereof pursuant
either to the powers of sale granted by this Agreement or to a judgment, order
or decree made in any judicial proceeding for the foreclosure or involving the
enforcement of this Agreement. If, after the exercise of any or all of such
rights and remedies, any of the Obligations shall remain unpaid or unsatisfied,
such Subtenant shall remain liable for any deficiency or performance thereof, as
applicable.
(c) Upon any sale of any of the Collateral, whether made under the
power of sale hereby given or under judgment, order or decree in any judicial
proceeding for the foreclosure or involving the enforcement of this Agreement:
(i) the Secured Party may bid for and purchase the property
being sold and, upon compliance with the terms of sale, may
hold, retain and possess and dispose of such property in
its own absolute right without further accountability, and
may, in paying the purchase money therefor, deliver any
instruments evidencing the Obligations or agree to the
satisfaction of all or a portion of the Obligations in lieu
of cash in payment of the amount which shall be payable
thereon, and such instruments, in case the amounts so
payable thereon shall be less than the amount due thereon,
shall be returned to the Secured Party after being
appropriately stamped to show partial payment;
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(ii) the Secured Party may make and deliver to the purchaser or
purchasers a good and sufficient deed, xxxx of sale and
instrument of assignment and transfer of the property sold;
(iii) all right, title, interest, claim and demand whatsoever,
either at law or in equity or otherwise, of any Subtenant
of, in and to the property so sold shall be divested; such
sale shall be a perpetual bar both at law and in equity
against such Subtenant, its successors and assigns, and
against any and all Persons claiming or who may claim the
property sold or any part thereof from, through or under
such Subtenant, its successors or assigns;
(iv) the receipt of the Secured Party or of the officers thereof
making such sale shall be a sufficient discharge to the
purchaser or purchasers at such sale for his or their
purchase money, and such purchaser or purchasers, and his
or their assigns or personal representatives, shall not,
after paying such purchase money and receiving such receipt
of the Secured Party or of such officer therefor, be
obliged to see to the application of such purchase money or
be in any way answerable for any loss, misapplication or
nonapplication thereof; and
(v) to the extent that it may lawfully do so, each Subtenant
agrees that it will not at any time insist upon, or plead,
or in any manner whatsoever claim or take advantage of, any
appraisement, valuation, stay, extension or redemption
laws, or any law permitting it to direct the order in which
the Collateral or any part thereof shall be sold, now or at
any time hereafter in force, which may delay, prevent or
otherwise affect the performance or enforcement of this
Agreement or any other document, the Lease or any other
document or agreement entered into in connection herewith
or therewith, and each Subtenant hereby expressly waives
all benefit or advantage of any such laws and covenants
that it will not hinder, delay or
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impede the execution of any power granted or delegated to
the Secured Party in this Agreement, but will suffer and
permit the execution of every such power as though no such
laws were in force.
In the event of any sale of Collateral pursuant to this Section 7, the Secured
Party shall, at least ten (10) days before such sale, give the Subtenant written
notice of its intention to sell, except that, if the Secured Party shall
determine in its reasonable discretion that any such Collateral threatens to
decline in value, any such sale may be made upon three (3) days' written notice
to the applicable Subtenant, which time periods each Subtenant hereby agrees are
reasonable.
(d) The Secured Party is hereby irrevocably appointed the true and
lawful attorney-in-fact of each Subtenant in its name and stead, to make all
necessary deeds, bills of sale and instruments of assignment and transfer of the
property sold pursuant to this Section 7 and for such other purposes as are
necessary or desirable to effectuate the provisions of this Agreement, and for
that purpose it may execute and deliver all necessary deeds, bills of sale and
instruments of assignment and transfer, and may substitute one or more Persons
with like power, each Subtenant hereby ratifying and confirming all that its
said attorney, or such substitute or substitutes, shall lawfully do by virtue
hereof. If so requested by the Secured Party or by any purchaser, each Subtenant
shall ratify and confirm any such sale or transfer by executing and delivering
to the Secured Party or to such purchaser all property, deeds, bills of sale,
instruments or assignment and transfer and releases as may be designated in any
such request.
Section 8. Application of Moneys. All moneys which the Secured Party
shall receive pursuant hereto shall first be applied (to the extent thereof) to
the payment of all reasonable costs and expenses incurred in connection with the
administration and enforcement of, or the preservation of any rights under, this
Agreement or any of without limitation, the reasonable fees and disbursements of
its counsel and agents), and the balance, if any, shall be applied first to
accrued and unpaid interest, charges and fees on, and then to outstanding
principal of, any Obligations or any other obligations of the Tenant or the
Subtenants (or their affiliates) to the Secured Party, and then to any other
amounts outstanding on any such Obligations and then as required by law to any
other parties having an interest therein.
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Section 9. Waivers, Etc. Each Subtenant, on its own behalf and on
behalf of its successors and assigns, hereby waives presentment, demand, notice,
protest and, except as is otherwise specifically provided herein, all other
demands and notices in connection with this Agreement or the enforcement of the
rights of the Secured Party hereunder or in connection with any Obligations or
any Collateral; waives all rights to require a marshaling of assets by the
Secured Party; consents to and waives notice of (i) the substitution, release or
surrender of any Collateral, (ii) the addition or release of Persons primarily
or secondarily liable on any Obligation or on any Collateral, (iii) the
acceptance of partial payments on any Collateral and/or the settlement or
compromise thereof, (iv) any requirement of diligence or promptness on the part
of the Secured Party in the enforcement of any rights in respect of any
Collateral or any other agreement or instrument directly or indirectly relating
thereto, and (v) any enforcement of any present or future agreement or
instrument relating directly or indirectly to the Collateral. No delay or
omission on the part of the Secured Party or any holder of Obligations in
exercising any right hereunder shall operate as a waiver of such right or of any
other right hereunder. No waiver of any such right on any one occasion shall be
construed as a bar to or waiver of any such right on any future occasion. No
course of dealing between any Subtenant and the Secured Party or any holder of
Obligations, nor any failure to exercise, nor any delay in exercising, on the
part of the Secured Party or any holder of Obligations, any right, power or
privilege hereunder or under any of the 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.
Each Subtenant further waives any right it may have under the
constitution of any state or commonwealth in which any of the 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
Party, 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. EACH SUBTENANT'S WAIVERS UNDER THIS SECTION 9 HAVE BEEN MADE
VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY AND AFTER SUCH SUBTENANT HAS BEEN
APPRISED AND COUNSELED BY ITS ATTORNEYS AS TO THE NATURE THEREOF AND ITS
POSSIBLE ALTERNATIVE RIGHTS.
-15-
The Secured Party shall not be required to marshal any present or
future security for (including without limitation this Agreement and the
Collateral pledged hereunder), or guaranties of, the Obligations or any of them,
or to resort to such security or guaranties in any particular order; and all of
the rights hereunder and in respect of such securities and guaranties shall be
cumulative and in addition to all other rights, however existing or arising. To
the maximum extent permitted by applicable law, each Subtenant hereby agrees
that it will not invoke any law relating to the marshalling of collateral which,
might cause delay in or impede the enforcement of the Secured Party's rights
under this Agreement or under any other instrument evidencing any of the
Obligations or under which any of the Obligations is outstanding or by which any
of the Obligations is secured or guaranteed, and, to the maximum extent
permitted by applicable law, each Subtenant hereby irrevocably waives the
benefits of all such laws.
Section 10. Further Assurances as to Collateral; Attorney-in-Fact. From
time to time hereafter, each Subtenant will execute and deliver, or will cause
to be executed and delivered, such additional instruments, certificates or
documents (including, without limitation, financing statements, renewal
statements, mortgages, collateral assignments and other security documents), and
will take all such actions as the Secured Party may reasonably request, for the
purposes of implementing or effectuating the provisions of this Agreement or of
more fully perfecting or renewing the Secured Party's rights with respect to the
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
such Subtenant which may be deemed to be a part of the Collateral) pursuant
hereto and thereto. The Secured Party is hereby appointed the attorney-in-fact,
with full power of substitution, of the Subtenants 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 financing or
continuation statements, deeds to secure debt, mortgages, assignments,
conveyances, assignments and transfers which are required to be taken or
executed by any Subtenant 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 such
Subtenant.
-16-
Section 11. Arbitration. The Secured Party or any Subtenant 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 Party or any Subtenant shall elect to submit
any such dispute to arbitration hereunder, the Secured Party and such Subtenant
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 Party or such Subtenant 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 Party and the Subtenants, 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
Party and one to the Tenant. A judgment of a court of competent jurisdiction may
be entered upon the award of the arbitrators in accordance with the rules and
statutes applicable thereto then obtaining.
-17-
Section 12. 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.
(c) All such notices shall be addressed,
if to the Secured Party to:
c/o Senior Housing Properties Trust
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxxx
[Telecopier No. (000) 000-0000]
if to any Subtenant to:
c/o Five Star Quality Care, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx
[Telecopier No. (000) 000-0000]
(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
notice 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.
-18-
Section 13. Miscellaneous.
(a) Each Subtenant agrees that its obligations and the rights of
the Secured Party hereunder and in respect of the Obligations may be enforced by
specific performance hereof and thereof and by temporary, preliminary and/or
final injunctive relief relating hereto and thereto, without necessity for proof
by the Secured Party or any holder of the Obligations that it would otherwise
suffer irreparable harm, and each Subtenant hereby consents to the issuance of
such specific and injunctive relief.
(b) None of the terms and conditions of this Agreement may be
changed, waived, modified or varied in any manner whatsoever unless in writing
duly signed by the Subtenants and the Secured Party. No notice to or demand on
any Subtenant in any case shall entitle any Subtenant to any other or further
notice or demand in similar or other circumstances or constitute a waiver of any
of the rights of the Secured Party to any other or further action in any
circumstances without notice or demand.
(c) The obligations of each Subtenant hereunder shall remain in
full force and effect without regard to, and shall not be impaired by, (i) any
bankruptcy, insolvency, reorganization, arrangement, readjustment, composition,
liquidation or the like of the Tenant; (ii) any exercise or non-exercise, or any
waiver of, any right, remedy, power or privilege under or in respect of this
Agreement, the Lease or any document or agreement executed in connection
herewith or therewith, the Obligations or any security for any of the
Obligations; or (iii) any amendment to or modification of any of the Lease or
any document or agreement executed in connection herewith or therewith, the
Obligations or any security for any of the Obligations; whether or not such
Subtenant shall have notice or knowledge of any of the foregoing. The rights and
remedies of the Secured Party herein provided for are cumulative and not
exclusive of any rights or remedies which the Secured Party would otherwise
have, including, without limitation, under the Lease or any document or
agreement executed in connection herewith or therewith. This Agreement is
intended as a supplement for and is not intended to supersede in any respect the
Lease or any document or agreement executed in connection herewith or therewith.
(d) This Agreement shall be binding upon each Subtenant and its
successors and assigns and shall inure to the benefit of the Secured Party, and
its respective successors and assigns. All agreements, representations and
warranties made herein shall survive the execution and delivery of this
Agreement.
-19-
(e) The descriptive headings of the several sections of this
Agreement are inserted for convenience only and shall not in any way affect the
meaning or construction of any provision of this Agreement.
(f) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibitions or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
(g) This Agreement 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 this Agreement
is executed or delivered; or (ii) where any payment or other performance
required by this Agreement is made or required to be made; or (iii) where any
breach of any provision of this Agreement 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, principle 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. Notwithstanding the foregoing, to the extent that
matters of title, or creation, perfection and priority of the security interests
created hereby, or procedural issues of foreclosures are required to be governed
by the laws of the state in which the Collateral, or relevant part thereof, is
located, the laws of such State shall apply.
Section 14. Nonliability of Trustees. THE DECLARATION OF TRUST
ESTABLISHING THE SECURED PARTY, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS
THERETO (THE "DECLARATION"), IS DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS
AND TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT THE NAME "SNH CHS
PROPERTIES TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS
TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER,
SHAREHOLDER, EMPLOYEE OR AGENT OF THE SECURED PARTY SHALL BE HELD TO ANY
PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM
AGAINST, THE SECURED
-20-
PARTY. ALL PERSONS DEALING WITH THE SECURED PARTY, IN ANY
WAY, SHALL LOOK ONLY TO THE ASSETS OF THE SECURED PARTY FOR THE PAYMENT OF ANY
SUM OR THE PERFORMANCE OF ANY OBLIGATION.
[Remainder of page intentionally left blank.]
-21-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal as of the date first above written.
SUBTENANTS:
FIVE STAR QUALITY CARE-MD, LLC,
a Delaware limited liability company
By: /s/ Xxxxx X. Xxxxxx Xx.
--------------------------------------
Xxxxx X. Xxxxxx Xx.
Its: Treasurer and Chief Financial Officer
FIVE STAR QUALITY CARE-NC, LLC,
a Delaware limited liability company
By: /s/ Xxxxx X. Xxxxxx Xx.
--------------------------------------
Xxxxx X. Xxxxxx Xx.
Its: Treasurer and Chief Financial Officer
FIVE STAR QUALITY CARE-VA, LLC,
a Delaware limited liability company
By: /s/ Xxxxx X. Xxxxxx Xx.
--------------------------------------
Xxxxx X. Xxxxxx Xx.
Its: Treasurer and Chief Financial Officer
SECURED PARTY:
SNH CHS PROPERTIES TRUST,
a Maryland real estate investment trust
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------
Xxxx X. Xxxxxxx
Its: Treasurer
EXHIBIT A
SUBLEASES
1. Sublease Agreement, dated October 25, 2002, by and between FVE-CHS LLC, a
Delaware limited liability company, and Five Star Quality Care-MD, LLC, a
Delaware limited liability company.
2. Sublease Agreement, dated October 25, 2002, by and between FVE-CHS LLC, a
Delaware limited liability company, and Five Star Quality Care-NC, LLC, a
Delaware limited liability company.
3. Sublease Agreement, dated October 25, 2002, by and between FVE-CHS LLC, a
Delaware limited liability company, and Five Star Quality Care-VA, LLC, a
Delaware limited liability company.
-23-
SCHEDULE 1
----------------------------------------------------------------------------------------------
Subtenant Name, Organizational Structure Chief Executive Office & Other Names
& Corporate Identification Number: Principal Place of Business:
----------------------------------------------------------------------------------------------
Five Star Quality Care-MD, LLC 000 Xxxxxx Xxxxxx Xxxx
a Delaware limited liability company Xxxxxx, XX 00000
No: 3561210
----------------------------------------------------------------------------------------------
Five Star Quality Care-NC, LLC 000 Xxxxxx Xxxxxx Xxxx
a Delaware limited liability company Xxxxxx, XX 00000
No: 3561212
----------------------------------------------------------------------------------------------
Five Star Quality Care-VA, LLC 000 Xxxxxx Xxxxxx Xxxx
a Delaware limited liability company Xxxxxx, XX 00000
No: 3561214
----------------------------------------------------------------------------------------------
SCHEDULE 2
MARYLAND:
FIVE STAR QUALITY CARE-MD, LLC
ASPENWOOD
00000 Xxxxxxxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000
HEARTFIELDS AT BOWIE
0000 Xxxxxx Xxxxx Xxxx
Xxxxx, XX 00000
HEARTFIELDS AT EASTON
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
HEARTFIELDS AT FREDERICK (Dearbought Community)
0000 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
HEARTLANDS AT SEVERNA PARK
000 Xxxxxxxx Xxxx
Xxxxxxx Xxxx, XX 00000
NORTH CAROLINA:
FIVE STAR QUALITY CARE-NC, LLC
HEARTFIELDS AT XXXX
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxx, XX 00000
VIRGINIA:
FIVE STAR QUALITY CARE-VA, LLC
HEARTFIELDS AT FREDERICKSBURG
00 XxxxxxXxxxx Xxxx
Xxxxxxxxxxxxxx, XX 00000
HEARTSFIELD AT RICHMOND
000 Xxxxx Xxxxx Xxxxxx
(Corner of Grace)
Xxxxxxxx, XX 00000
