EXHIBIT 2.5
PURCHASE AND SALE AGREEMENT
by and among
ALS-VENTURE II, INC.
and
WYNWOOD OF CHAPEL HILL, LLC,
as the Sellers,
and
SNH ALT LEASED PROPERTIES TRUST,
as the Purchaser
February 28, 2003
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT is made and entered into as of February
28, 2003, by and among ALS-VENTURE II, INC., a Delaware corporation ("ALS"), and
WYNWOOD OF CHAPEL HILL, LLC, a North Carolina limited liability company
("Wynwood" and, together with ALS, collectively, the "Sellers"), as sellers, and
SNH ALT LEASED PROPERTIES TRUST, a Maryland real estate investment trust (the
"Purchaser"), as purchaser.
WITNESSETH:
WHEREAS, the Sellers are the owners of all of the Properties (all
capitalized terms used and not otherwise defined herein having the meanings
ascribed to such terms in Section 1); and
WHEREAS, the Sellers are willing to sell all of the Properties to the
Purchaser, and the Purchaser is willing to purchase all of the Properties from
the Sellers, subject to and upon the terms and conditions hereinafter set forth;
and
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, the mutual receipt and legal
sufficiency of which are hereby acknowledged, the Sellers and the Purchaser
hereby agree as follows:
SECTION 1. DEFINITIONS. Capitalized terms used in this Agreement shall
have the meanings set forth below or in the Section of this Agreement referred
to below:
1.1. "ACCEPTABLE TITLE MATTERS" shall mean the matters shown on the
Title Commitments or Surveys which are not Outstanding Title Matters.
1.2. "AGREEMENT" shall mean this Purchase and Sale Agreement,
together with Exhibits A through F attached hereto, as it and they may be
amended from time to time as herein provided.
1.3. "ALS" shall have the meaning given such term in the preambles
to this Agreement.
1.4. "ALTERRA" shall mean Alterra Healthcare Corporation, a Delaware
corporation, and its permitted
successors and assigns under the Lease Documents and the Loan Documents to which
it is a party.
1.5. "ASSETS" shall mean, with respect to any Facility,
collectively, all of the Real Property, the FF&E, the Contracts, the Documents,
the Improvements, the Intangible Property and the Tenant Leases owned by either
of the Sellers in connection with or relating to such Facility, but expressly
excluding the Excluded Assets.
1.6. "BANKRUPTCY COURT ORDER" shall mean the order of the Bankruptcy
Court under Title 11 of the United States Code required by the Letter, dated
January __, 2003.
1.7. "BORROWER" shall mean Pomacy Corporation, a Delaware
corporation, and its permitted successors and assigns under the Loan Documents
and the Lease Documents to which it is a party.
1.8. "BUSINESS DAY" shall mean any day other than a Saturday, Sunday
or any other day on which banking institutions in The Commonwealth of
Massachusetts are authorized by law or executive action to close.
1.9. "CLOSING" shall have the meaning given such term in Section
4.1.
1.10. "CLOSING DATE" shall have the meaning given such term in
Section 4.1.
1.11. "CONTRACTS" shall mean, with respect to any Property,
collectively, all resident and management agreements, licensing agreements and
other service contracts, equipment leases, booking agreements and other
arrangements or agreements to which either of the Sellers is a party affecting
the ownership, repair, maintenance, management, leasing or operation of such
Property, but only to the extent the Sellers' interest therein is assignable or
transferable, and expressly excluding any agreements, contracts, leases or other
arrangements or agreements relating exclusively to the Excluded Assets.
1.12. "CORRECTED TITLE MATTERS" shall mean, collectively, (a) any
Outstanding Title Matters for which Sellers obtain the required revisions,
estoppels or certificates as set forth on Exhibit F attached hereto and (b) any
Outstanding Title Matters which otherwise become Corrected Title Matters in
accordance with the definition of "Permitted Encumbrances" set forth in this
Agreement.
- 2 -
1.13. "DILIGENCE DATE" shall mean the relevant date of the items and
information listed on Exhibit A attached hereto with respect to each item of Due
Diligence Information thereon.
1.14. "DOCUMENTS" shall mean, with respect to any Property,
collectively, all books, records and files relating to the leasing, maintenance,
management or operation of such Property.
1.15. "DUE DILIGENCE INFORMATION" shall mean the items and
information delivered to the Purchaser with respect to the Properties listed on
Exhibit A attached hereto.
1.16. "EXCLUDED ASSETS" shall mean, collectively, all (a) vehicles,
(b) computers, copiers, fax machines, employee cell phones and pagers and other
similar equipment subject to purchase money financing, all of which are listed
on Exhibit B attached hereto, and (c) proprietary materials and software and
trademarks, and tradenames.
1.17. "FACILITY" shall mean, with respect to any Property, the
assisted living/special care facility currently being operated on such Property.
1.18. "FF&E" shall mean, with respect to any Property, collectively,
all appliances, machinery, devices, fixtures, appurtenances, equipment,
furniture, furnishings and articles of tangible personal property of every kind
and nature whatsoever owned by any of the Sellers and located in or at, or used
in connection with the ownership, operation or maintenance of such Property, but
expressly excluding the Excluded Assets.
1.19. "GUARANTY AGREEMENT" shall mean that certain Guaranty
Agreement, dated as of the date hereof, between Alterra and the Purchaser, with
respect to this Agreement and the Lease.
1.20. "IMPROVEMENTS" shall mean, with respect to any Property,
collectively, all buildings, fixtures, walls, fences, landscaping and other
structures and improvements situated on, affixed or appurtenant to the Real
Property with respect to such Property.
1.21. "INTANGIBLE PROPERTY" shall mean, with respect to any
Property, collectively, all transferable or assignable permits, certificates of
occupancy, operating permits, sign permits, development rights and approvals,
certificates, licenses, warranties and guarantees, the
- 3 -
Contracts, telephone exchange numbers identified with such Property held by
either of the Sellers and all other transferable intangible property,
miscellaneous rights, benefits and privileges of any kind or character with
respect to such Property held by either of the Sellers, but expressly excluding
the Excluded Assets.
1.22. "LEASE" shall mean that certain Lease Agreement, dated as of
the date hereof, between the Purchaser, as landlord, and Tenant, as tenant, with
respect to the Properties, as it may be amended, modified or supplemented from
time to time.
1.23. "LEASE DOCUMENTS" shall have the meaning given such term in
the Lease.
1.24. "LOAN AGREEMENT" shall mean that certain Loan Agreement, dated
as of the date hereof, between SNH ALT Mortgaged Properties Trust, as lender,
and Borrower, as borrower, as it may be amended, modified or supplemented from
time to time.
1.25. "LOAN DOCUMENTS" shall have the meaning given such term in the
Loan Agreement.
1.26. "MATERIAL ADVERSE CHANGE" shall mean (a) a decrease in the
aggregate occupancy of the Pooled Facilities of more than ten percent (10%) in
the aggregate since the relevant Diligence Date, (b) any change in the condition
of any single Pooled Property, or any Pooled Facility located thereon
(including, without limitation, any casualty, condemnation (or threat thereof),
any environmental, structural, mechanical or title defect or violation of law),
that results in, or is reasonably likely to result in, a cost to remedy or
repair in excess of $500,000, which change first occurs after the Diligence Date
related to the relevant Due Diligence Information with respect thereto or (c)
any change or changes in the condition of any or all of the Pooled Properties,
or any or all of the Pooled Facilities located thereon (including, without
limitation, any casualty, condemnation (or threat thereof), any environmental,
structural, mechanical or title defect or violation of law), that result in, or
are reasonably likely to result in, an aggregate cost to remedy or repair in
excess of $3,000,000, which change or changes first occur after the Diligence
Date related to the relevant Due Diligence Information with respect thereto.
- 4 -
1.27. "OUTSTANDING TITLE MATTERS" shall mean, collectively, all
matters shown on the Title Commitments or Surveys for which Purchaser has
required Sellers to obtain the revisions, estoppels and certificates set forth
on Exhibit F attached hereto.
1.28. "PERMITTED ENCUMBRANCES" shall mean, with respect to any
Property, (a) liens for taxes, assessments and governmental charges with respect
to such Property not yet due and payable or due and payable but not yet
delinquent; (b) applicable zoning regulations and ordinances in effect on or
prior to the relevant Diligence Date related to the Due Diligence Items for such
Property, together with applicable zoning regulations and ordinances promulgated
or enacted after such relevant Diligence Date to the extent same do not
constitute a Material Adverse Change; (c) UCC financing statements which would
be permitted pursuant to the terms of Section 21.9 of the Lease or which are in
effect with respect to the Excluded Assets as of the relevant Diligence Dates;
(d) all Acceptable Title Matters and all Corrected Title Matters; provided,
however, if the Sellers do not so obtain the required revisions, estoppels or
certificates with respect to any Outstanding Title Matters, then the Permitted
Exceptions shall include such Outstanding Title Matters in the event that
Purchaser elects to proceed with the Closing, in which event such Outstanding
Title Matters shall be included within the definition of "Corrected Title
Matters" hereunder; and (e) such other nonmonetary encumbrances with respect to
such Property first arising after the relevant Diligence Date which do not
constitute a Material Adverse Change.
1.29. "POOLED FACILITIES" shall mean, collectively, the Facilities
and the facilities that are subject to the Loan Documents.
1.30. "POOLED PROPERTIES" shall mean, collectively, the Properties
and the properties that are subject to the Loan Documents.
1.31. "PROPERTIES" shall mean, collectively, all of the Assets
relating to the properties identified on Exhibit C attached hereto.
1.32. "PURCHASE PRICE" shall mean an amount equal to Sixty-One
Million Dollars ($61,000,000).
1.33. "REAL PROPERTY shall mean, with respect to any Property, the
real property described in the applicable
- 5 -
Exhibits D-1 through D-[ ] attached hereto, together with all easements, rights
of way, privileges, licenses and appurtenances which the Sellers may own with
respect thereto.
1.34. "SELLERS" shall have the meaning given such term in the
preamble to this Agreement.
1.35. "PURCHASER" shall have the meaning give such term in the
preamble to this Agreement.
1.36. "SURVEYS" shall have the meaning given such term in Section
3.2.
1.37. "TENANT" shall mean AHC Trailside, Inc. and its permitted
successors and assigns under the Lease Documents and the Loan Documents to which
it is a party.
1.38. "TENANT LEASES" shall mean, with respect to any Property, all
leases, rental agreements or other agreements (including all amendments or
modifications thereto) which entitle any person to have rights with respect to
the use or occupancy of any portion of such Property.
1.39. "TITLE COMMITMENTS" shall have the meaning given such term in
Section 3.2.
1.40. "TITLE COMPANY" shall mean Chicago Title Insurance Company, or
such other title insurance company as shall have been selected by the Sellers
and approved by the Purchaser, which approval shall not be unreasonably
withheld, delayed or conditioned.
1.41. "WYNWOOD" shall have the meaning given such term in the
preambles to this Agreement.
SECTION 2. PURCHASE AND SALE
2.1. PURCHASE AND SALE. In consideration of the mutual covenants
herein contained, the Purchaser hereby agrees to purchase from the Sellers and
the Sellers hereby agree to sell to the Purchaser, all of the Sellers' right,
title and interest in and to the Properties for the Purchase Price, subject to
and in accordance with the terms and conditions of this Agreement.
2.2. PURCHASE PRICE.
- 6 -
(a) At the Closing, the Purchaser shall pay to the Sellers, for the
Properties, the Purchase Price, subject to adjustment as provided in Article 10.
(b) The Purchase Price shall be payable by wire transfer of
immediately available funds to an account or accounts to be designated by the
Sellers prior to the Closing.
SECTION 3. DILIGENCE
3.1. DILIGENCE INSPECTIONS. Prior to the execution of this
Agreement, the Sellers have permitted the Purchaser and its representatives to
inspect the Properties, to perform due diligence, soil analysis and
environmental investigations, and to examine the books of account and records of
the Sellers with respect to the Properties, and make copies thereof. In
connection with such investigations, the Purchaser has identified certain
actions to be taken with respect to the environmental condition of the
Properties prior to Closing as set forth in Exhibit E attached hereto.
To the extent that, in connection with any such investigations, the
Purchaser or its agents, representatives or contractors shall have damaged or
disturbed any of the Real Property, the Improvements or FF&E located thereon,
the Purchaser shall, at its expense, return the same to substantially the same
condition which existed immediately prior to such damage or disturbance. The
Purchaser shall indemnify, defend and hold harmless the Sellers from and against
any and all expense, loss or damage which the Sellers may incur as a result of
any act or omission of the Purchaser or its representatives, agents or
contractors in connection with such examinations and inspections, other than to
the extent that any expense, loss or damage arises from any negligence or
misconduct of the Sellers. The provisions of this Section 3.1 shall survive the
termination of this Agreement and the Closing.
3.2. TITLE AND SURVEY MATTERS. Prior to the execution of this
Agreement, the Sellers have obtained from the Title Company a preliminary title
commitment or title commitments for an ALTA extended owner's policy or policies
of title insurance (collectively, the "Title Commitments") and an ALTA survey
(collectively, the "Surveys") with respect to each of the Properties and the
Purchaser has identified the Outstanding Title Matters to be satisfied or cured
by the Sellers, and revisions required to be made to the Title Commitments and
Surveys, prior to Closing, as set forth in Exhibit F.
- 7 -
3.3. OTHER DILIGENCE MATERIALS. Prior to the execution of this
Agreement, the Sellers have permitted the Purchaser and its representatives to
review and examine all environmental assessment reports, building evaluations,
financial data and other investigations and materials pertaining to the
Properties as are in the possession of the Seller and have permitted the
Purchaser to make copies of any such materials as the Purchaser or its
representatives have requested. In the event that the Closing does not take
place as herein contemplated for any reason, the Purchaser shall return all such
copies to the Seller.
SECTION 4. CLOSING
4.1. CLOSING. The transactions contemplated hereby shall be
consummated at a closing (the "Closing") to be held at the offices of Xxxxxxxx &
Worcester LLP, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, or at such other
location as the Sellers and the Purchaser may agree, at 10:00 a.m. local time,
on the date that is five (5) Business Days after the satisfaction or waiver of
the conditions set forth in Article 5 and the date that the Bankruptcy Court
Order shall be final (or if not final, but subject to appeal or collateral
attack, subject only to appeal or attack with respect to such matters as shall
not, in the Purchaser's sole discretion, adversely affect the enforcement of the
transaction contemplated by the Letter, dated January __, 2003, this Agreement,
the Lease Documents and the Loan Documents (the "Closing Date"). In the event
that the Closing shall not have occurred by 11:59 pm EST on March 7, 2003, the
Purchaser shall have the right, by the giving of written notice to the Sellers,
to terminate this Agreement; provided, however, that the reason for the delay in
Closing was not due to an action or failure to act by the Purchaser. Each of the
Sellers and the Purchaser agree that time is of the essence with respect to this
Agreement.
SECTION 5. CONDITIONS TO THE PURCHASER'S OBLIGATION TO CLOSE
The obligation of the Purchaser to acquire each of the Properties on
the Closing Date shall be subject to the satisfaction of the following
conditions precedent on and as of the Closing Date:
5.1. SELLER'S CLOSING DOCUMENTS. The Sellers shall have delivered
(or shall have caused to be delivered) to the Purchaser the following:
- 8 -
(a) With respect to each Property, a good and sufficient limited or
special warranty deed with covenants against grantor's acts, or its local
equivalent, in proper statutory form for recording, duly executed and
acknowledged by the Sellers, conveying good and marketable title to the
Properties, free from all liens and encumbrances other than the Permitted
Encumbrances;
(b) With respect to each Property, a xxxx of sale and assignment
agreement, in form and substance reasonably satisfactory to the Sellers and the
Purchaser, duly executed and acknowledged by the Sellers, with respect to all of
the Sellers' right, title and interest in, to and under the FF&E, the Contracts,
the Documents, the Intangible Property and the Tenant Leases with respect to the
Properties and the Sellers' rights under all builder's warranties with respect
to the Properties;
(c) With respect to each Property, a copy of the final duly issued
certificate of occupancy for such Property;
(d) Duly executed counterparts of all of the Lease Documents and all
other documents and sums required to be executed or delivered by the Tenant
pursuant to the Lease Documents;
(e) Duly executed counterparts of all of the Loan Documents and all
other documents and sums required to be executed or delivered by the Borrower
pursuant to the Loan Documents;
(f) Certified copies of all charter documents, applicable corporate
resolutions and certificates of incumbency with respect to the Sellers, the
Tenant, the Borrower and Alterra;
(g) Alterra shall have joined in the execution hereof and shall have
delivered a duly executed counterpart of the Guaranty; and
(h) Such other conveyance documents, certificates, deeds, affidavits
and other instruments as the Purchaser or the Title Company may reasonably
require to effectuate the transactions contemplated by this Agreement.
5.2. CONDITION OF THE PROPERTIES.
- 9 -
(a) No Material Adverse Change shall have occurred between January
21, 2003 (or, if sooner, the relevant Diligence Dates) and the Closing;
(b) No action shall be pending or threatened for the condemnation or
taking by power of eminent domain which would constitute a Material Adverse
Change;
(c) The actions to be taken and the requirements to be satisfied
with respect to the environmental condition of the Properties as identified by
the and set forth on Exhibit E shall have been taken or satisfied;
(d) The actions to be taken and the requirements to be satisfied
with respect to the Outstanding Title Matters shall have been taken or
satisfied;
(e) The Sellers shall have paid and discharged in full all monetary
encumbrances affecting the Properties, including, without limitation, mechanics'
liens and other liens for labor, materials or supplies, judgement liens,
mortgages, deeds of trust and other financing liens, and other liens, in each
case of a liquidated sum affecting any of the Properties, or such liens and
encumbrances shall be paid in full at Closing; and
(f) No Default or Event of Default (as defined therein) shall have
occurred and be continuing under the Lease Documents or the Loan Documents.
5.3. TITLE POLICIES. The Title Company shall be prepared, subject
only to payment of the applicable premium and endorsement fees and delivery of
all conveyance documents in recordable form, to issue title insurance policies
to the Purchaser with respect to each of the Properties, in form and substance
consistent with the Title Commitments (after giving effect to the satisfaction
of the conditions contained in Sections 5.2(d) and (e)), subject only to the
Permitted Exceptions.
5.4. OPINIONS OF COUNSEL. The Purchaser shall have received a
written opinion from counsel to the Sellers, which counsel shall be reasonably
acceptable to the Purchaser, in form and substance reasonably satisfactory to
the Purchaser, regarding the organization and authority of the Sellers, the
Tenant, the Borrower and Alterra, the enforceability of this Agreement and the
documents to be delivered by the Sellers hereunder, the enforceability of Lease
Documents and the
- 10 -
enforceability of the Loan Documents and such other matters with respect to the
transactions contemplated by this Agreement as the Purchaser may reasonably
require.
5.5. ADDITIONAL DOCUMENTS. Each of the Sellers shall have executed
and delivered at the Closing such additional agreements, certificates and other
documents as are reasonably required to carry out the transactions contemplated
hereby.
5.6. REPRESENTATIONS AND WARRANTIES; COVENANTS. All representations
and warranties of the Sellers herein shall be true, correct and complete in all
material respects on and as of the Closing Date and the Sellers shall have
performed all material covenants and obligations required to be performed by the
Sellers on or before the Closing Date.
SECTION 6. CONDITIONS TO SELLERS' OBLIGATION TO CLOSE
The obligation of the Sellers to convey the Properties on the
Closing Date to the Purchaser is subject to the satisfaction of the following
conditions precedent on and as of the Closing Date:
6.1. PURCHASE PRICE. The Purchaser shall deliver to the Sellers the
Purchase Price as provided in Section 2.2.
6.2. CLOSING DOCUMENTS. The Purchaser shall have delivered to the
Sellers:
(a) Duly executed and acknowledged counterparts of the documents
described in Section 5.1, where applicable; and
(b) Certified copies of all charter documents, applicable
resolutions and certificates of incumbency with respect to the Purchaser.
6.3. REPRESENTATIONS AND WARRANTIES; COVENANTS. All representations
and warranties of the Purchaser herein shall be true, correct and complete in
all material respects on and as of the Closing Date and the Purchaser shall have
performed all material covenants and obligations required to be performed by the
Purchaser on or before the Closing Date.
SECTION 7. REPRESENTATIONS AND WARRANTIES OF SELLERS
To induce the Purchaser to enter into this Agreement, each of the Sellers
represents and warrants to the Purchaser as follows:
- 11 -
7.1. STATUS AND AUTHORITY OF THE SELLERS. ALS is a corporation duly
organized, validly existing and in good standing under the laws of its state of
incorporation. Wynwood is a limited liability company duly formed, validly
existing and in good standing under the laws of its state of formation. Each
Seller has all requisite power and authority under the laws of such state and
its respective charter documents to enter into and perform its obligations under
this Agreement and to consummate the transactions contemplated hereby. Each
Seller has duly qualified to transact business in each jurisdiction in which the
nature of the business conducted by it requires such qualification, except where
failure to do so could not reasonably be expected to have a material adverse
effect.
7.2. ACTION OF THE SELLERS. Each Seller has taken all necessary
action to authorize the execution, delivery and performance of this Agreement,
and upon the execution and delivery of any document to be delivered by it on or
prior to the Closing Date, such document shall constitute its valid and binding
obligation and agreement, enforceable against such Seller in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws of general application affecting the
rights and remedies of creditors.
7.3. OTHER AUTHORIZATIONS. No consent, approval, order or
authorization of, or registration, declaration of filing with, or giving notice
to, or obtaining of any license or permit from, or taking of any other action
with respect to, any Federal, state or local government or public body,
authority or agency or any other person, is required in connection with the
valid authorization, execution, delivery and performance by the Sellers of this
Agreement or the consummation of any of the transactions contemplated hereby,
except that, with respect to certain of the Properties, the Sellers are required
to give notice to the applicable healthcare licensing agencies of the transfer
of the fee interest in such Properties as contemplated hereby, which notices
have been, or shall be given by the Sellers as and when required by applicable
law.
7.4. NO VIOLATIONS OF AGREEMENTS. Neither the execution, delivery or
performance of this Agreement, nor compliance with the terms and provisions
hereof, will result in any breach of the terms, conditions or provisions of, or
conflict with or constitute a default under, or result in the creation of any
lien, charge or encumbrance upon the Properties pursuant to the terms of any
indenture, mortgage, deed of trust, note, evidence of indebtedness or any other
agreement or
- 12 -
instrument by which it is bound, other than the liens and encumbrances created
by the Lease Documents and the Loan Documents.
7.5. FINANCIAL STATEMENTS. The financial statements relating to the
Pooled Facilities previously furnished to the Purchaser fairly present the
financial condition of each of the Pooled Facilities as of the end of and for
the reporting periods covered thereby. There has been no Material Adverse Change
since the date of such financial statements.
7.6. LITIGATION. None of the Sellers have received any written
notice of and, to their knowledge, no action or proceeding is pending or
threatened and no investigation looking toward such an action or proceeding has
begun, which (a) questions the validity of this Agreement or any action taken or
to be taken pursuant hereto or (b) will result in any Material Adverse Change.
7.7. EXISTING LEASES, AGREEMENTS, ETC. Other than any agreements
previously provided to the Purchaser and the Permitted Exceptions, there are no
other material agreements affecting any of the Properties which will be binding
on the Purchaser subsequent to the Closing Date which the Purchaser cannot
terminate on sixty (60) days' notice without payment of premium or penalty.
7.8. DISCLOSURE. To each Seller's knowledge, neither this Agreement
nor any other document, certificate or statement furnished to the Purchaser, by
or on behalf of the Sellers in connection with the transactions contemplated
hereby, contains any untrue statement of a material fact or omission to state a
material fact necessary in order to make the statements contained herein or
therein not misleading. To each Seller's knowledge, there is no fact or
condition or set of facts or conditions that constitutes a Material Adverse
Change which has not been set forth in the Due Diligence Information, this
Agreement or in the other documents, certificates or statements furnished to the
Purchaser in connection with the transactions contemplated hereby.
7.9. UTILITIES, ETC. To each Seller's knowledge, as of the relevant
Diligence Date, all utilities and services necessary for the use and operation
of each of the Properties (including, without limitation, road access, gas,
water, electricity and telephone) were available thereto and were of sufficient
capacity to meet adequately all needs and requirements necessary for the current
use and operation of each
- 13 -
of the Properties, and, to each Seller's knowledge, no fact, condition or
proceeding exists which would result in a Material Adverse Change with respect
to the furnishing of such utilities.
7.10. COMPLIANCE WITH LAW. To each Seller's knowledge, except as
disclosed to the Purchaser in writing, (a) as of the relevant Diligence Date,
each of the Properties and the use and operation thereof did not violate any
material Federal, state, municipal and other governmental statutes, ordinances,
by-laws, rules, regulations or any other legal requirements, including, without
limitation, those relating to construction, occupancy, zoning, adequacy of
parking, environmental protection, occupational health and safety and fire
safety applicable thereto; and (b) at the time of the Closing there will be in
effect all material licenses, permits and other authorizations necessary for the
current use, occupancy and operation thereof. Except as disclosed to the
Purchaser in the Due Diligence Information, as of the relevant Diligence Date,
none of the Sellers has received written notice of any threatened request,
application, proceeding, plan, study or effort which would result in a Material
Adverse Change, and there has been no Material Adverse Change with respect to
the foregoing since the relevant Diligence Date.
7.11. TAXES. To each Seller's knowledge, other than the amounts
disclosed by tax bills, no taxes or special assessments of any kind (special,
bond or otherwise) are or have been levied with respect to any of the
Properties, or any portion thereof, which are outstanding or unpaid, other than
amounts being paid at the Closing or amounts not yet due and payable or, if due
and payable, not yet delinquent.
7.12. NOT A FOREIGN PERSON. None of the Sellers is a "foreign
person" within the meaning of Section 1445 of the United States Internal Revenue
Code of 1986, as amended, and the treasury regulations promulgated thereunder.
7.13. HAZARDOUS SUBSTANCES. Except as disclosed to the Purchaser in
the Due Diligence Information, as of the relevant Diligence Dates, and except
with respect to matters arising subsequent thereto which do not constitute a
Material Adverse Change, to each Seller's knowledge, neither it nor any tenant
or other occupant or user of any of the Properties, or any portion thereof, has
stored or disposed of (or engaged in the business of storing or disposing of) or
has released or caused the release of any hazardous waste, contaminants, oil,
radioactive or other material on any of the Properties, or any portion thereof,
the removal of which is required or the
- 14 -
maintenance of which is prohibited or penalized by any applicable Federal, state
or local statutes, laws, ordinances, rules or regulations, and, to each Seller's
knowledge, except as disclosed to the Purchaser in the Due Diligence Information
as of the relevant Diligence Dates, and, except with respect to matters arising
subsequent thereto which do not constitute a Material Adverse Change, each of
the Properties is free from any such hazardous waste, contaminants, oil,
radioactive and other materials, except any such materials maintained in
accordance with applicable law.
7.14. INSURANCE. None of the Sellers have received written notice
from any insurance carrier of defects or inadequacies in any of the Properties
which, if uncorrected, would result in the Sellers' failure to have in place at
Closing the insurance coverage required under the terms of the Lease, or result
in a material increase in the premiums charged therefor.
7.15. OWNERSHIP OF SELLERS. Alterra is the sole owner, directly or
indirectly, of all of the issued and outstanding capital stock of ALS and all of
the issued and outstanding membership interests of Wynwood and the transactions
contemplated by this Agreement are of direct material benefit to Alterra.
7.16. CONDITION OF PROPERTIES. To each Seller's knowledge, all of
the Properties are in good working order and repair, mechanically and
structurally sound, free from material defects in materials and workmanship,
other than the items set forth in the Due Diligence Information as of the
relevant Diligence Dates, except with respect to matters arising subsequent to
the relevant Diligence Dates which do not constitute a Material Adverse Change.
The representations and warranties made in this Agreement by the Sellers
are made as of the date hereof and shall be deemed remade by the Sellers as of
the Closing Date, with the same force and effect as if made on, and as of, such
date; provided, however, that, the Sellers shall, from time to time prior to the
Closing Date, modify the representations and warranties by notice to the
Purchaser and, in the event that any such modification shall disclose a Material
Adverse Change, the Purchaser may elect (a) to terminate this Agreement in whole
but not in part, whereupon this Agreement shall be of no further force and
effect or (b) to consummate the transactions contemplated hereby,
notwithstanding such modification, without any abatement or reduction in the
Purchase Price on account thereof. All representations and warranties made in
this
- 15 -
Agreement by the Sellers shall survive the Closing for a period of one (1) year
thereafter.
Except as otherwise expressly provided in this Agreement or any documents
to be delivered to the Purchaser at the Closing, the Sellers disclaim the making
of any representations or warranties, express or implied, regarding the
Properties or matters affecting the Properties, whether made by the Sellers, on
the Sellers' behalf or otherwise, including, without limitation, the physical
condition of the Properties, title to or the boundaries of the Real Property,
pest control matters, soil conditions, the presence, existence or absence of
hazardous wastes, toxic substances or other environmental matters, compliance
with building, health, safety, land use and zoning laws, regulations and orders,
structural and other engineering characteristics, traffic patterns, market data,
economic conditions or projections, and any other information pertaining to the
Properties or the market and physical environments in which they are located.
The Purchaser acknowledges (i) that the Purchaser has entered into this
Agreement with the intention of making and relying upon its own investigation or
that of third parties with respect to the physical, environmental, economic and
legal condition of each Property and (ii) that the Purchaser is not relying upon
any statements, representations or warranties of any kind, other than those
specifically set forth in this Agreement or in any document to be delivered to
the Purchaser at the Closing, made by the Sellers or anyone acting on the
Sellers' behalf. The Purchaser further acknowledges that it has not received
from or on behalf of the Sellers any accounting, tax, legal, property management
or other advice with respect to this transaction and is relying solely upon the
advice of third party accounting, tax, legal, property management and other
advisors. Subject to the provisions of this Agreement, the Purchaser shall
purchase the Properties in their "as is" condition on the Closing Date.
SECTION 8. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
To induce the Sellers to enter in this Agreement, the Purchaser represents
and warrants to the Sellers as follows:
8.1. STATUS AND AUTHORITY OF THE PURCHASER. The Purchaser is a
Maryland real estate investment trust duly organized, validly existing and in
trust good standing under the laws of the State of Maryland, and has all
requisite power and authority under the laws of such state and under its charter
documents to enter into and perform its obligations under this Agreement and to
consummate the transactions contemplated
- 16 -
hereby. The Purchaser has duly qualified and is in good standing as a trust or
unincorporated business association in each jurisdiction in which the nature of
the business conducted by it requires such qualification, except where the
failure to do so could not reasonably be expected to have a material adverse
effect.
8.2. ACTION OF THE PURCHASER. The Purchaser has taken all necessary
action to authorize the execution, delivery and performance of this Agreement,
and upon the execution and delivery of any document to be delivered by the
Purchaser on or prior to the Closing Date such document shall constitute the
valid and binding obligation and agreement of the Purchaser, enforceable against
the Purchaser in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws of
general application affecting the rights and remedies of creditors.
8.3. NO VIOLATIONS OF AGREEMENTS. Neither the execution, delivery or
performance of this Agreement by the Purchaser, nor compliance with the terms
and provisions hereof, will result in any breach of the terms, conditions or
provisions of, or conflict with or constitute a default under, or result in the
creation of any lien, charge or encumbrance upon any property or assets of the
Purchaser pursuant to the terms of any indenture, mortgage, deed of trust, note,
evidence of indebtedness or any other agreement or instrument by which the
Purchaser is bound.
8.4. LITIGATION. No investigation, action or proceeding is pending
and, to the Purchaser's knowledge, no action or proceeding is threatened and no
investigation looking toward such an action or proceeding has begun, which
questions the validity of this Agreement or any action taken or to be taken
pursuant hereto.
The representations and warranties made in this Agreement by the Purchaser
shall be continuing and shall be deemed remade by the Purchaser as of the
Closing Date with the same force and effect as if made on, and as of, such date.
The Purchaser's liability with respect to all representations and warranties
made in this Agreement by the Purchaser shall survive the Closing for a period
of one (1) year thereafter.
- 17 -
SECTION 9. COVENANTS OF THE SELLERS
The Sellers hereby covenant with the Purchaser until the Closing Date, as
follows:
9.1. COMPLIANCE WITH LAWS, ETC. To comply or to cause compliance in
all material respects with (a) all applicable laws, regulations and other
requirements from time to time of every governmental body having jurisdiction
over the Properties or the use or occupancy of the Improvements located on the
Real Property and (b) all terms, covenants and conditions of all instruments of
record and other agreements affecting the Properties.
9.2. APPROVAL OF AGREEMENTS. Except as otherwise authorized by this
Agreement or in the ordinary course of business, not to enter into, modify,
amend or terminate any other agreement with respect to the Properties which
would encumber or be binding upon any of the Properties from and after the
Closing Date without in each instance obtaining the prior written consent of the
Purchaser, which consent shall not be unreasonably withheld, delayed or
conditioned.
9.3. NOTICE OF MATERIAL CHANGES OR UNTRUE REPRESENTATIONS. Upon
learning of any material change in any condition with respect to any of the
Properties or of any event or circumstance which makes any representation or
warranty of the Sellers to the Purchaser under this Agreement untrue or
misleading in any material respect, promptly to notify the Purchaser thereof
(the Purchaser agreeing, on learning of any such fact or condition, promptly to
notify the Sellers thereof).
9.4. FINANCIAL INFORMATION. To provide to the Purchaser, promptly
upon request at the Sellers' sole cost and expense, such unaudited financial and
other information with respect to the Sellers and the Properties as the
Purchaser may from time to time reasonably request and certifications and copies
of audited financials for Alterra in order to comply with any applicable
securities laws and/or any rules, regulations or requirements of the Securities
and Exchange Commission and, if required or requested, to permit the Purchaser
to incorporate by reference any information included in filings made by Alterra
with the Securities and Exchange Commission. The Sellers shall not be required
to provide, pursuant to this Agreement, audited financial information with
respect to individual Properties or ALS or Wynwood.
- 18 -
9.5. OPERATION OF THE PROPERTIES. To continue to operate the
Properties in a good and businesslike fashion consistent with past practices and
to maintain the Properties in good working order and condition in a manner
consistent with past practice.
9.6. INSURANCE. To maintain "all risk" property insurance on a
replacement cost basis with respect to the Improvements.
SECTION 10. APPORTIONMENTS
10.1. REAL PROPERTY APPORTIONMENTS.
Representatives of the Purchaser and the Sellers shall perform any and all of
the adjustments and apportionments which are appropriate and usual for a
transaction of this nature, it being understood and agreed that all items of
income and expense with respect to the Properties (a) shall be the
responsibility of the Sellers, prior to the Closing, as owners of the Properties
and (b) shall be the responsibility of Tenant, from and after the Closing, as
tenant of the Properties under and pursuant to the terms of the Lease.
10.2. CLOSING COSTS. The Sellers shall pay all costs and expenses
associated with the transactions contemplated hereby, including, without
limitation, recording costs, title insurance premiums, the costs and expenses of
preparing environmental reports, market studies and appraisals and the
reasonable costs and expenses of legal counsel retained by the Purchaser.
The obligations of the parties under this Section 10 shall survive the
Closing.
SECTION 11. DEFAULT
11.1. DEFAULT BY THE SELLERS. If the Sellers or any Affiliated
Person as to either of them shall have made any representation or warranty
herein or in any of the other Lease Documents or the Loan Documents which shall
be untrue or misleading in any material respect, or if the Sellers shall fail to
perform any of the material covenants and agreements contained herein to be
performed by the Sellers and such failure continues for a period of ten (10)
days after notice thereof from the Purchaser or if the Sellers or any Affiliated
Person as to either of them shall fail to perform any of the material covenants
and agreements contained in any of the Lease Documents or the Loan Documents to
be performed by any of them and such
- 19 -
failure continues beyond the expiration of any applicable cure period, the
Purchaser may terminate this Agreement in whole but not in part and/or the
Purchaser may pursue any and all remedies available to it at law or in equity,
including, but not limited to, a suit for specific performance or other
equitable relief.
11.2. DEFAULT BY THE PURCHASER. If the Purchaser shall have made any
representation or warranty herein which shall be untrue or misleading in any
material respect, or if the Purchaser shall fail to perform any of the material
covenants and agreements contained herein to be performed by it and such failure
shall continue for a period of ten (10) days after notice thereof from any of
the Sellers, the Sellers may terminate this Agreement in whole but not in part
and/or the Sellers may pursue any and all remedies available to them at law or
in equity, including, but not limited to, a suit for specific performance or
other equitable relief.
SECTION 12. MISCELLANEOUS
12.1. AGREEMENT TO INDEMNIFY.
(a) Subject to any express provisions of this Agreement to the
contrary, (i) the Sellers shall indemnify and hold harmless the Purchaser from
and against any and all obligations, claims, losses, damages, liabilities, and
expenses (including, without limitation, reasonable attorneys' and accountants'
fees and disbursements) arising out of (x) events, contractual obligations, acts
or omissions of the Sellers that occurred in connection with the ownership or
operation of any of the Properties prior to the Closing or (y) any damage to
property of others or injury to or death of any person or any claims for any
debts or obligations occurring on or about or in connection with any of the
Properties or any portion thereof at any time or times prior to the Closing, and
(ii) subject to the terms of the Lease, the Purchaser shall indemnify and hold
harmless the Sellers from and against any and all obligations, claims, losses,
damages, liabilities and expenses (including, without limitation, reasonable
attorneys' and accountants' fees and disbursements) arising out of (x) events,
contractual obligations, acts or omissions of the Purchaser that occur in
connection with the ownership or operation of any of the Properties on or after
the Closing, or (y) any damage to property of others or injury to or death of
any person or any claims for any debts or obligations occurring on or about any
of the Properties or any portion thereof at any time or times after the Closing.
- 20 -
(b) Whenever it is provided in this Agreement that an obligation of
the Sellers will be assumed by the Purchaser on or after the Closing, then,
subject to the terms of the Lease, the Purchaser shall be deemed to have also
agreed to indemnify and hold harmless the Sellers and their respective
successors and assigns from and against all claims, losses, damages,
liabilities, costs, and expenses (including, without limitation, reasonable
attorneys' and accountants' fees and expenses) arising from any failure of the
Purchaser to perform the obligation so assumed on or after the Closing.
(c) Whenever any party shall learn through the filing of a claim or
the commencement of a proceeding or otherwise of the existence of any liability
for which the other party is or may be responsible under this Agreement, the
party learning of such liability shall notify the other party promptly and
furnish such copies of documents (and make originals thereof available) and such
other information as such party may have that may be used or useful in the
defense of such claims and shall afford said other party full opportunity to
defend the same in the name of such party and shall generally cooperate with
said other party in the defense of any such claim.
(d) The provisions of this Section 12.1 shall survive the Closing
and the termination of this Agreement.
12.2. BROKERAGE COMMISSIONS. Each of the parties hereto represents
to the other parties that, it has dealt with no broker, finder or like agent in
connection with this Agreement or the transactions contemplated hereby. The
Sellers shall be solely responsible for and shall indemnify and hold harmless
the Purchaser and its respective legal representatives, heirs, successors and
assigns from and against any loss, liability or expense, including, reasonable
attorneys' fees, arising out of any claim or claims for commissions or other
compensation for bringing about this Agreement or the transactions contemplated
hereby made by any broker, finder or like agent other than such loss, liability
or expense arising from the Purchaser's breach of its representation made in
this Section 12.2. The provisions of this Section 12.2 shall survive the Closing
and any termination of this Agreement.
12.3. PUBLICITY. The parties agree that no party shall, with respect
to this Agreement and the transactions contemplated hereby, contact or conduct
negotiations with public officials, make any public pronouncements, issue press
releases or otherwise furnish information regarding this Agreement or the
transactions contemplated to any third party without the consent
- 21 -
of the other parties, which consent shall not be unreasonably withheld, delayed
or conditioned, except as required by law or unless such action is taken based
on advice of counsel given in good faith. No party, or any of its employees
having knowledge of this transaction, shall trade in the securities of any
parent or affiliate of the Sellers or of the Purchaser until a public
announcement of the transactions contemplated by this Agreement has been made.
No party shall record this Agreement or any notice thereof, except as required
by law or unless such action is taken based on advice of counsel given in good
faith.
12.4. 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
acknowledged receipt, in the case of a notice by telecopier, and, in all other
cases, upon the date of receipt or refusal, except that whenever under this
Agreement a notice is either received on a day which is not a Business Day or is
required to be delivered on or before a specific day which is not a Business
Day, the day of receipt or required delivery shall automatically be extended to
the next Business Day.
(c) All such notices shall be addressed,
if to the Sellers to:
c/o Alterra Healthcare Corporation
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxxxxx
Telecopier No. (000) 000-0000
- 22 -
With a copy to:
Xxxxxx & Xxxxxx LLP
2700 International Tower
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxx, Esq.
Telecopier No. (000) 000-0000
If to the Purchaser, to:
c/o Senior Housing Properties Trust
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxxx
Telecopier No. (000) 000-0000
with a copy to:
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Esq.
Telecopier No. (000) 000-0000
(d) By notice given as herein provided, the parties hereto and their
respective successors and assigns shall have the right from time to time and at
any time during the term of this Agreement to change their respective addresses
effective upon receipt by the other parties of such notice and each shall have
the right to specify as its address any other address within the United States
of America.
12.5. WAIVERS, ETC. Any waiver of any term or condition of this
Agreement, or of the breach of any covenant, representation or warranty
contained herein, in any one instance, shall not operate as or be deemed to be
or construed as a further or continuing waiver of any other breach of such term,
condition, covenant, representation or warranty or any other term, condition,
covenant, representation or warranty, nor shall any failure at any time or times
to enforce or require performance of any provision hereof operate as a waiver of
or affect in any manner such party's right at a later time to enforce or require
performance of such provision or any other provision hereof. This Agreement may
not be amended, nor shall any waiver, change, modification, consent or discharge
be effected, except by an instrument in writing executed by or on
- 23 -
behalf of the party against whom enforcement of any amendment, waiver, change,
modification, consent or discharge is sought.
12.6. ASSIGNMENT; SUCCESSORS AND ASSIGNS. This Agreement and all
rights and obligations hereunder shall not be assignable by any party without
the written consent of the other parties, except that (x) the Purchaser may
assign this Agreement to any entity wholly owned, directly or indirectly, by the
Purchaser (provided, however, that, in the event this Agreement shall be
assigned to any entity wholly owned, directly or indirectly, by the Purchaser,
the Purchaser shall remain liable for its obligation as the Purchaser hereunder)
and (y) after the Closing, the Sellers may assign their surviving rights, if
any, under this Agreement to the Tenant. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective legal
representatives, successors and permitted assigns. This Agreement is not
intended and shall not be construed to create any rights in, or to be
enforceable in any part by, any other persons.
12.7. SEVERABILITY. If any provision of this Agreement shall be held
or deemed to be, or shall in fact be, invalid, inoperative or unenforceable as
applied to any particular case in any jurisdiction or jurisdictions, or in all
jurisdictions or in all cases, because of the conflict of any provision with any
constitution or statute or rule of public policy or for any other reason, such
circumstance shall not have the effect of rendering the provision or provisions
in question invalid, inoperative or unenforceable in any other jurisdiction or
in any other case or circumstance or of rendering any other provision or
provisions herein contained invalid, inoperative or unenforceable to the extent
that such other provisions are not themselves actually in conflict with such
constitution, statute or rule of public policy, but this Agreement shall be
reformed and construed in any such jurisdiction or case as if such invalid,
inoperative or unenforceable provision had never been contained herein and such
provision reformed so that it would be valid, operative and enforceable to the
maximum extent permitted in such jurisdiction or in such case.
12.8. COUNTERPARTS, ETC. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement and all
other documents and instruments executed and delivered simultaneously herewith
constitute the entire agreement of the parties hereto with respect to the
subject matter hereof and shall supersede and take the place of any other
instruments purporting to be an
- 24 -
agreement of the parties hereto relating to the subject matter hereof.
12.9. GOVERNING LAW. 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 (a) where this
Agreement is executed or delivered; or (b) where any payment or other
performance required by this Agreement is made or required to be made; or (c)
where any breach of any provision of this Agreement occurs, or any cause of
action otherwise accrues; or (d) where any action or other proceeding is
instituted or pending; or (e) the nationality, citizenship, domicile, principal
place of business, or jurisdiction of organization or domestication of any
party; or (f) whether the laws of the forum jurisdiction otherwise would apply
the laws of a jurisdiction other than The Commonwealth of Massachusetts; or (g)
any combination of the foregoing.
To the maximum extent permitted by applicable law, any action to enforce,
arising out of, or relating in any way to, any of the provisions of this
Agreement may be brought and prosecuted in such court or courts located in The
Commonwealth of Massachusetts as is provided by law; and the parties consent to
the jurisdiction of said court or courts located in The Commonwealth of
Massachusetts and to service of process by registered mail, return receipt
requested, or by any other manner provided by law.
12.10. PERFORMANCE ON BUSINESS DAYS. In the event the date on which
performance or payment of any obligation of a party required hereunder is other
than a Business Day, the time for payment or performance shall automatically be
extended to the first Business Day following such date.
12.11. ATTORNEYS' FEES. If any lawsuit or arbitration or other legal
proceeding arises in connection with the interpretation or enforcement of this
Agreement, the prevailing party therein shall be entitled to receive from the
other party the prevailing party's costs and expenses, including reasonable
attorneys' fees incurred in connection therewith, in preparation therefor and on
appeal therefrom, which amounts shall be included in any judgment therein.
12.12. SECTION AND OTHER HEADINGS. The headings contained in this
Agreement are for reference purposes only and
- 25 -
shall not in any way affect the meaning or interpretation of this Agreement.
12.13. NONLIABILITY OF TRUSTEES. THE DECLARATION OF TRUST
ESTABLISHING THE PURCHASER, 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 ALT LEASED
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 Purchaser SHALL BE HELD TO ANY PERSONAL
LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, the
Purchaser. ALL PERSONS DEALING WITH THE PURCHASER, IN ANY WAY, SHALL LOOK ONLY
TO THE ASSETS OF THE PURCHASER FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF
ANY OBLIGATION.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
- 26 -
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as a sealed instrument as of the date first above written.
THE SELLERS:
ALS VENTURE II, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------------
Xxxx X. Xxxxxxxxx
Vice President
WYNWOOD OF CHAPEL HILL, LLC,
a North Carolina limited liability company
By: Alterra Healthcare Corporation,
its general partner
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------------
Xxxx X. Xxxxxxxxx
Senior Vice President
THE PURCHASER:
SNH ALT LEASED PROPERTIES TRUST,
a Maryland real estate investment trust
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------
Xxxx X. Xxxxxxx
Treasurer
- 27 -
The undersigned expressly acknowledges and agrees that it is a condition
precedent to the Purchaser's entering into this Agreement that the undersigned
guarantee all of the payment and performance obligations of the Sellers
hereunder upon the terms and conditions of a Guaranty Agreement, of even date
herewith, between the undersigned and the Purchaser.
ALTERRA HEALTHCARE CORPORATION,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------------
Xxxx X. Xxxxxxxxx
Senior Vice President
- 28 -
EXHIBIT A
DUE DILIGENCE INFORMATION AND DILIGENCE DATES
[SEE ATTACHED COPIES.]
EXHIBIT B
EXCLUDED ASSETS
[SEE ATTACHED COPIES.]
EXHIBIT C
THE PROPERTIES
[SEE ATTACHED COPIES.]
EXHIBIT D-1 THROUGH D-__
LEGAL DESCRIPTIONS
[SEE ATTACHED COPIES.]
EXHIBIT E
REQUIRED ENVIRONMENTAL ACTIONS
[SEE ATTACHED COPIES.]
EXHIBIT F
OUTSTANDING TITLE MATTERS
[SEE ATTACHED COPIES.]
