EXHIBIT 2.1
PURCHASE AGREEMENT
between
HEALTH AND RETIREMENT PROPERTIES TRUST
and
BANQUE PARIBAS, AS AGENT
Dated as of April 29, 1998
TABLE OF CONTENTS
ARTICLE 1 PURCHASE AND SALE................................................2
Section 1.1. Agreement to Purchase..............................2
Section 1.2. Purchase Price.....................................2
Section 1.3. Closing Documents and Deliveries...................3
Section 1.4. Purchaser's Default................................4
Section 1.5. Seller's Default...................................5
Section 1.6. Escrow Agent.......................................5
Section 1.7. Transfer and Recordation Taxes;
Responsibility for Recording...................5
Section 1.8. Closing Expenses...................................5
Section 1.9. Condition Precedent to Seller's
Obligations....................................6
Section 1.10. Conditions Precedent to Purchaser's
Obligations. .................................6
ARTICLE 2 REPRESENTATIONS, WARRANTIES AND COVENANTS........................6
Section 2.1. Representations and Warranties of
Each Lender. ..................................6
Section 2.2. Representations and Warranties of
Purchaser. ....................................8
ARTICLE 3 MISCELLANEOUS...................................................10
Section 3.1. Notices...........................................10
Section 3.2. Inspection by Seller..............................11
Section 3.3. Meaning of Certain Terms..........................11
Section 3.4. Purchaser's Indemnification
Covenants.............................11
Section 3.5. Broker............................................11
Section 3.6. Confidentiality; Publicity........................12
Section 3.7. Severability of Provisions........................13
Section 3.8. Further Assurances................................13
Section 3.9. Captions; Internal References;
Exhibits..............................13
Section 3.10. Successors and Assigns............................13
Section 3.11. Governing Law.....................................13
Section 3.12. Waiver of Trial by Jury...........................14
Section 3.13. Execution in Counterpart..........................14
Section 3.14. No Recording......................................14
Section 3.15. Miscellaneous. ...................................14
Section 3.16. Non-liability of Trustees. .......................14
Section 3.17. Loan Administration And Certain
Other Matters During Executory
Period........................................14
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THIS PURCHASE AGREEMENT (this "Agreement"), dated as of April 29, 1998,
between BANQUE PARIBAS, a French banking corporation, acting through its New
York Branch, as Agent (in such capacity, "Agent") for a group of lenders (each
lender being, individually, a "Lender" and all Lenders being, collectively, the
"Seller") set forth on Exhibit A, having an office at The Equitable Tower, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and HEALTH AND RETIREMENT PROPERTIES
TRUST ("Purchaser"), a Maryland real estate investment trust, having an address
at 000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000.
W I T N E S S E T H:
WHEREAS, Purchaser has agreed to purchase from Seller, and Seller has
agreed to sell to Purchaser, that certain loan (the "Loan") evidenced by that
certain Construction Loan Mortgage Note (the "Note"), dated May 25, 1998, made
by Nine Penn Center Associates, L.P. ("Borrower"), as borrower, in favor of
Agent in the original principal amount of Two Hundred Eighty-Five Million
Dollars ($285,000,000), made pursuant to that Construction Loan Agreement among
Borrower, Agent and Seller dated May 25, 1988 and amended by that certain First
Amendment to Construction Loan Agreement dated as of February 27, 1990 (such
agreement, as so amended, being the "Loan Agreement"), and secured, among other
things, by that certain Construction Loan Mortgage, Assignment of Leases and
Rents and Security Agreement (the "Mortgage") made as of May 25, 1988 by and
among Borrower, the Lenders, and Agent; including without limitation, all of
Seller's right, title and interest in (i) the Mortgage, covering certain real
property located at Nine Penn Center, Philadelphia, Pennsylvania and the
building and other improvements situated thereon (collectively, the "Mortgaged
Property"), the land on which the same is situated (the "Land") being more
particularly described in Exhibit B; (ii) that certain Assignment of Leases and
Rents dated as of May 25, 1988 (the "Assignment of Leases"), made by Borrower in
favor of Seller; (iii) that certain Guarantee of Interest, Taxes and Operating
Expenses, made as of May 25, 1988, given by The Equitable Life Assurance Society
of the United States ("Equitable") and Xxxxxx Xxxxx ("Xxxxx"; Equitable and
Xxxxx, being, collectively, the "Guarantors") in favor of Seller; (iv) that
certain Guarantee of Completion and Performance made as of May 25, 1988, given
by the Guarantors in favor of Seller; (v) that certain Security Agreement made
as of May 25, 1988 between Borrower and Seller; and (vi) that certain Servicing
Agreement (the "Servicing Agreement") made as of May 25, 1998 between Borrower
and Agent (the documents described in items (i)-(vi) above, collectively, the
"Loan Documents").
NOW THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the receipt and sufficiency of which is hereby
acknowledged by the parties, the parties hereto agree as follows:
ARTICLE 1
PURCHASE AND SALE
Section 1.1. Agreement to Purchase.
(a) Seller agrees to sell, and Purchaser agrees to purchase,
all of Seller's right, title and interest in and to, each of the Loan Documents
(said right, title and interest being, hereinafter, the "Asset").
(b) The closing for the purchase and sale (the "Closing")
shall take place at the offices of Carb, Luria, Xxxx & Xxxxxx LLP at 000 Xxxxx
Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 a.m. on the second business day
(the "Closing Date") following the giving of the Acceptance Notice (as defined
in Section 1.9), time being of the essence with respect to the obligations of
Purchaser. Seller shall have the right to adjourn the Closing for up to five (5)
business days by giving written notice thereof to Purchaser not less than three
(3) business days prior to the Closing Date. Seller shall also have the right to
adjourn the Closing for up to two (2) business days by giving written notice
thereof to Purchaser at closing; provided that, in such event, notwithstanding
anything to the contrary contained herein, all interest accrued on the Deposit
shall be paid to Purchaser at Closing; provided, however, that (x) in no event
shall the aggregate extensions hereunder exceed five (5) business days and (y)
in no event shall the Closing occur later than May 24, 1998.
(c) The Escrow Agent shall hold this Agreement until receipt
of the Deposit, whereupon, Escrow Agent shall deliver this Agreement to Agent
and Purchaser. In the event the Deposit shall not have been received by the
Escrow Agent as provided below, this Agreement shall automatically terminate and
be null and void and of no further effect, except that any portion of the
Deposit received by Escrow Agent shall be paid to Seller.
Section 1.2. Purchase Price.
(a) The purchase price for the Asset (the "Purchase Price")
shall be Two Hundred Twenty-Six Million Dollars ($226,000,000), to be paid as
follows:
(i) A deposit in the amount of Five Million Dollars
($5,000,000) will be paid by Purchaser by the wiring of immediately
available funds to an account designated by the Escrow Agent (as
defined in Section 1.6) on April 29, 1998.
(ii) An additional deposit (such amount and the deposit
paid pursuant to clause (i) above, the "Deposit") in the amount of
Seventeen Million Six Hundred Thousand Dollars ($17,600,000) will be
paid by Purchaser by the wiring of immediately available funds to an
account designated by the Escrow Agent on April 30, 1998.
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(iii) On the Closing Date, Purchaser will pay the balance
of the Purchase Price (i.e., $203,400,000) in immediately available
funds to Agent in accordance with wiring instructions to be provided by
Agent.
(b) Except for any prepayments of principal, the aggregate
amount of which shall be credited against the Purchase Price, there shall be no
adjustments to the Purchase Price, it being understood and agreed that all
amounts (other than payments of principal) collected with respect to the Loan
prior to the Closing Date shall be retained by Seller and all amounts collected
with respect to the Loan on and after the Closing Date shall be paid over to and
retained by Purchaser; provided, however, that (x) any interest payment received
prior to maturity of the Loan shall be prorated between Purchaser and Seller and
(y) if Purchaser shall, at any time, during the period expiring two (2) years
after the Closing Date, collect interest payments expressly designated as
attributable to periods prior to maturity, such interest payments shall be
prorated between Purchaser and Seller.
Section 1.3. Closing Documents and Deliveries.
(a) On the Closing Date, the following documents shall be
executed and delivered by the parties as stated below:
(i) Seller shall deliver to Purchaser the original Note
together with an assignment of the Note to Purchaser by allonge in the
form of Exhibit C;
(ii) An assignment and assumption agreement (the
"Assignment") in recordable form, in the form of Exhibit D, containing
an assignment by Seller to Purchaser of Seller's right, title and
interest under the Loan Documents (other than the Note and the
Servicing Agreement) and an assumption by Purchaser of the obligations
of Seller's arising and accruing under those agreements and under the
Note on and after the Closing Date;
(iii) An assignment and assumption agreement in the form
of Exhibit E containing an assignment of Agent's rights, if any,
thereafter arising or accruing pursuant to the Servicing Agreement, and
an assumption by Purchaser of the obligations of Agent arising and
accruing under the Servicing Agreement on and after the Closing Date;
(iv) UCC-3 Financing Statements signed by Seller or by
Agent as agent for Seller giving notice of the assignment by Seller to
Purchaser with respect to each of the three (3) presently existing UCC
Financing Statements on file with respect to the Loan;
(v) A certificate (the "Lender Certificate"), dated as of
the Closing Date, from each Lender in the form of Exhibit F, and a
certificate from Agent (the "Agent Certificate") from Agent in the form
of Exhibit G;
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(vi) A letter from Agent to Borrower notifying Borrower of
the sale and assignment of the Loan pursuant to this Agreement, the
name and address of Purchaser and the assignment of Agent's rights
under the Servicing Agreement to Purchaser; and
(vii) Such letters, affidavits and indemnities as
Purchaser's title companies may reasonably require as a condition
precedent to insuring Purchaser's interest with respect to the Loan and
which are customary in a transaction of this nature.
(b) At Closing, the following documents shall be delivered by
Seller to Purchaser to the extent not previously delivered:
(i) If in the possession of Seller, an ink signed original
of each Loan Document, and a photocopy of any Loan Document for which
an original is not in Seller's possession;
(ii) If in the possession of Seller, an original (copy if
original is not available) of the title insurance policy insuring the
Loan issued by Chicago Title Insurance Company and all endorsements
thereto, and all reinsurance agreements pertaining thereto, together
with a non-recourse assignment of said policy;
(iii) If in the possession of Seller, the survey, if any,
referred to in the above referenced title insurance commitment made in
connection with origination of the Loan (original if available); and
(iv) If in the possession of Seller, copies of the UCC-1
financing statements filed in favor of Seller as secured party in
connection with the Loan and any related continuation statements or
subsequent UCC-1 financing statements filed in connection therewith.
Section 1.4. Purchaser's Default. In the event of a default by
Purchaser under this Agreement, the Deposit shall be paid to Seller as
liquidated damages and shall constitute Seller's sole and exclusive remedy with
regard to any such default, either at law or in equity. The parties acknowledge
that it would be difficult to ascertain actual damages in the event of a default
by Purchaser in its obligations to close hereunder and agree that they have
determined that the Deposit constitutes a fair and reasonable estimate of the
amount of such damages. Upon Seller's exercise of such remedy, this Agreement
shall be of no further force and effect and no party hereto shall have any
further rights or obligations hereunder or any claims against the other at law
or in equity, without the need to execute any general releases in favor of any
party.
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Section 1.5. Seller's Default. The parties hereby agree that if Seller
defaults hereunder, Purchaser's sole and exclusive remedy shall be to elect
within ten (10) business days thereafter, either (i) to terminate this
Agreement, in which event the Deposit shall be refunded to Purchaser, or (ii) to
institute an action for specific performance.
Section 1.6. Escrow Agent. The law firm of Carb, Luria, Xxxx & Xxxxxx
LLP shall act as escrow agent (the "Escrow Agent") hereunder. The Escrow Agent
will hold the Deposit in an interest-bearing account pursuant to the terms and
provisions of that certain escrow agreement, dated as of the date hereof, among
Purchaser, Seller and Escrow Agent. In the event of any dispute regarding the
Deposit, the Escrow Agent shall have the right to pay the Deposit into a federal
or state court and, upon doing so, will have no further liability regarding its
role as Escrow Agent. In the event the Closing shall not occur, interest and
income on the Deposit, if any, shall be paid to the party entitled to receive
the Deposit. If the Closing shall occur, interest on the Deposit, if any, shall
be paid to Seller and shall not be credited against the Purchase Price.
Purchaser acknowledges that the Escrow Agent is acting as counsel to
Seller in connection with the transaction herein and agrees that the Escrow
Agent may represent Seller, adversely to Purchaser, in connection with any
disputes hereunder, including, without limitation, disputes arising in
connection with the Deposit.
Section 1.7. Transfer and Recordation Taxes; Responsibility for
Recording. Purchaser shall be responsible for, and shall pay when due and
payable, all transfer, filing and recording fees and taxes, and any state or
county documentary taxes, if any, with respect to the filing or recording of any
document or instrument contemplated hereby if Purchaser elects to record the
same. Purchaser shall bear sole responsibility for recording all mortgages,
assignments, instruments or other documents delivered to Purchaser at the
Closing or thereafter. Purchaser shall indemnify, save and keep Seller, and its
successor and assigns, harmless against and from any and all liabilities,
demands, claims, actions or causes of action, assessments, losses, fines,
penalties, costs, damages and expenses, including without limitation, reasonable
attorneys fees and disbursements, sustained or incurred by Seller or its
successors and assigns, as a result of or arising out of Purchaser's failure to
pay such fees or taxes.
Section 1.8. Closing Expenses. Purchaser and Seller shall each be
responsible for the payment of its own closing expenses and its expenses in
negotiating and carrying out its obligations under this Agreement, including,
without limitation, the costs of its counsel, and in the case of Purchaser, all
of the costs of title insurance, if required by Purchaser, and all of the other
expenses of Purchaser set forth in Section 1.7, or otherwise.
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Section 1.9. Condition Precedent to Seller's Obligations. This
Agreement and the obligations of Seller hereunder are conditioned in their
entirety upon approval of this Agreement by each of the Lenders on or before May
14, 1998. Agent shall give written notice to Purchaser of the approval of this
Agreement by the Lenders (the "Acceptance Notice") or its failure to obtain the
same prior to expiration of such period. If Agent shall fail to give such notice
within such period, this Agreement shall be deemed disapproved. If Agent shall
fail to give the Acceptance Notice or any notice of disapproval within such
period, the Deposit shall be returned to Purchaser, whereupon, this Agreement
shall be of no further force or effect and neither Seller nor Purchaser shall
have any further rights or obligations within respect to the other hereunder or
any claims against the other at law or in equity without the need to execute
general releases or any other writing in favor of such other party.
Section 1.10. Conditions Precedent to Purchaser's Obligations. The
obligations of Purchaser hereunder are also conditioned upon (i) the assignment
of the Asset by Seller to Purchaser as of the Closing Date free and clear of any
liens with respect to Seller's interest in and to the Asset and (ii) the
representations and warranties of Seller contained in each Lender's Certificate
and Agent's Certificate being true and correct in all material respects as of
the Closing Date. If either condition is not satisfied as of the Closing Date,
unless the same shall be waived in writing by Purchaser on or before the Closing
Date, the Deposit shall be returned to Purchaser. Upon such delivery of the
Deposit to Purchaser, this Agreement shall be of no further force or effect and
neither Seller nor Purchaser shall have any further rights or obligations with
respect to the other hereunder or any claims against the other at law or in
equity, without the need to execute general releases or any other writing in
favor of such other party. If Purchaser shall waive any such condition to
Closing, there shall be no abatement in the Purchase Price and Seller shall have
no liability whatsoever to Purchaser with respect thereto either at or
subsequent to Closing.
ARTICLE 2
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.1. Representations and Warranties of Each Lender. As of the
Closing, and subject to the approval of this Agreement by the Lenders as
provided in Section 1.9, each Lender severally shall make the following
representations and warranties to Purchaser, as of the Closing Date:
(a) Such Lender has full and corporate power, authority and
legal right to sell, assign and transfer its interest in the Asset to Purchaser
and to execute and deliver, engage in the transactions contemplated by, and
perform and observe the terms and conditions of this Agreement, the Assignment
and any certificates delivered by such Lender pursuant to this Agreement.
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(b) Such Lender has duly and validly authorized, executed and
delivered each of the following documents to which it is a signatory: the
Assignment and the Lender's Certificate.
(c) Such Lender has the full right, power and authority to
transfer its interest in the Loan, free of any liens or encumbrances thereon,
and without the need for any consent to such transfer, except such consents as
it has heretofore received and such Lender's interest in the Loan is accurately
set forth in Exhibit A.
(d) Such Lender knows of no amendment or modification to any
of the Loan Documents, or of any other agreement which may have a material
effect upon the rights and obligations of the parties pursuant to the Loan
Documents.
(e) As of the Closing Date, the outstanding principal amount
due with respect to such Lender's interest in the Loan is amount set forth for
such Lender on Exhibit A.
Agent further represents and warrants as follows:
(a) That, as of the Closing Date, there are no escrow accounts
held by Seller pursuant to the terms of the Loan Documents.
(b) As of the date of this Agreement and for the two year
period preceding the date hereof, Agent has received no written notice of
default by Agent or the Lenders under the Loan Documents.
(c) Agent has duly and validly authorized, executed and
delivered the Allonge, the Agent's Certificate and the UCC-3 Financing
Statements.
Except as set forth in this Section 2.1 and Section 3.5, Seller makes
no other representations, warranties or covenants to Purchaser with respect to
the Asset.
It is expressly agreed that neither Agent nor any Lender shall be
responsible for the accuracy of any representations or warranties or the
performance of any covenants of any other Lender under any provisions of this
Agreement or under any documents delivered at Closing pursuant to this
Agreement, each Lender being solely and severally liable to Purchase for its own
warranties, representations and covenants. It is agreed that Agent may, but
shall not be obligated to make any such warranties or representation on behalf
of any Lender(s), or to perform any such covenants on behalf of any Lender(s),
provided that Agent shall expressly acknowledge that it is taking such action on
behalf of such Lender(s). Purchaser agrees that, in any such event, Agent shall
have no liability to Purchaser with respect thereto, except if Agent's
representation that it was so authorized to take such action shall be untrue,
Purchaser having recourse against the representing Lender as to the substance of
the applicable
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certificate. All representations and warranties made by the Lenders and Agent
pursuant to any certificates shall survive only for the period set forth in the
applicable certificates, and thereafter shall be null and void and of no further
force and effect.
Section 2.2. Representations and Warranties of Purchaser. Purchaser
hereby represents and warrants to Seller, each of which is true and correct as
of the date hereof and as of the Closing Date, as follows:
(a) Purchaser is duly organized, validly existing and in good
standing under the laws of the State of Maryland.
(b) Purchaser has the full power and authority to purchase the
Asset and to execute, deliver and perform, and to enter into and consummate all
the transactions contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, has duly executed and
delivered this Agreement.
(c) Purchaser expressly acknowledges that, except as otherwise
specifically set forth in this Agreement, neither Seller, nor any officer,
director, employee, agent, representative, accountant, advisor, attorney,
consultant or contractor of any of them has made any oral or written
representations or warranties, whether expressed or implied, by operation of law
or otherwise, with respect to the Mortgaged Property or the Asset or the
existence of any litigation with respect thereto, the zoning and other laws,
regulations and rules applicable thereto or the compliance by the Mortgaged
Property therewith, the revenues and expenses generated by or associated with
the Mortgaged Property, or any due diligence materials, or any statements or
information contained in connection with the Asset or related thereto. Purchaser
further acknowledges that all materials relating to the Mortgaged Property and
the Asset which have been provided by Seller have been provided without any
warranty or representation, expressed or implied as to their content,
suitability for any purpose, accuracy, truthfulness or completeness and
Purchaser shall not have any recourse against Seller, or its counsel, advisors,
agents, officers, directors or employees or the preparers of any information in
the event of any errors therein or omissions therefrom. Purchaser is acquiring
the Asset based solely on its own independent investigation and inspection of
the Mortgaged Property and the Asset (and such other due diligence that
Purchaser and Purchaser's counsel have deemed necessary) and not in reliance on
any information (whether written, oral or otherwise)provided by Seller, or any
of its officers, directors, employees, agents, representatives, accountants,
advisors, attorneys, consultants or contractors, except for the matters set
forth in each Lender's Certificate and Agent's Certificate.
(d) Purchaser acknowledges that Seller does not own the
Property and, accordingly, is making no representations or warranties with
respect to the Mortgaged Property. Purchaser
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acknowledges and agrees that, except for the matters set forth in each Lender's
Certificate and Agent's Certificate, Purchaser is purchasing the Asset "AS IS"
and "WITH ALL FAULTS," based upon the status of the Asset as of the Closing
Date. In amplification, and not in limitation of the foregoing, Seller does not
and will not make any oral or written representations, warranties, promises or
(e) guarantees whatsoever, whether express or implied,
concerning or with regard to, and expressly disclaims any liability or
obligation with respect to, concerning or relating to, any of the following:
(i) the collectability of the Loan;
(ii) the value or condition of the Mortgaged Property;
(iii) title or ownership to or of the Mortgaged Property or
any portion or part thereof or any materials, fixtures or
furnishings located therein or thereon;
(iv) Borrower's compliance with any environmental
protection, pollution or land use laws;
(v) the zoning and any other restrictions applicable to the
Mortgaged Property;
(vi) ownership of or obligations in respect of any air
rights, zoning bonuses, floor area ratio bonuses or entitlements
or other similar rights or benefits attributable to, burdening or
otherwise pertaining to the Mortgaged Property;
(vii) claims by Borrower or any Guarantor against Seller
under the Loan Documents or otherwise or claims by third parties
against Borrower or any Guarantor or the credit worthiness or
ability of Borrower to fulfill its respective obligations or pay
its respective debts as they mature;
(viii) pending, existing or projected approvals, commitments
or guarantees concerning or relating to, or rights of or from or
claims against or relating to, any governmental or
quasi-governmental entity regarding, assurances of assistance,
compliance with programs or benefits, real estate taxes, tax
reductions or benefits;
(ix) the existence, validity, enforceability, terms,
conditions or any other aspect of the leases affecting the
Property; or
(x) any other matter, fact or circumstance whatsoever.
(f) Purchaser expressly acknowledges that it is a
sophisticated investor and has been represented by and relied upon counsel in
connection with this Agreement and the transactions
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contemplated herein. Purchaser is acquiring the Asset for its own account and
not as an agent or nominee on behalf of others.
(g) Purchaser acknowledges that (x) the Note and other Loan
Documents are being assigned to Purchaser without recourse to Seller for amounts
payable thereunder and (y) each Lender's and Agent's liability hereunder and in
connection with the transaction contemplated hereby shall be limited to matters
arising in connection with breach of representation.
(h) On the Closing Date, Purchaser covenants and agrees to and
does hereby release Seller's attorneys and the Broker from all claims, actions,
suits or proceedings relating to this Agreement and in connection with the
transaction contemplated hereby other than those arising from the gross
negligence or willful misconduct of the released party.
(i) Purchaser acknowledges that it is aware that Section 5.15
of the Mortgage contains, among other things, a provision to the effect that the
mortgagee will not become a "party in interest" (within the meaning of the
Employee Retirement Income Security Act of 1974, as now or hereafter amended) to
any pension or profit sharing plan which at any time has assets allocated to the
Prime Property Fund of Equitable and prohibiting the sale conveyance or transfer
of the Mortgage to a person or entity which would be such a "party in interest."
Purchaser represents and warrants to Seller and Agent that the sale of
the Assets to Purchaser pursuant to this Agreement will not result in a
violation of the provisions of said Section 5.15 of the Mortgage.
ARTICLE 3
MISCELLANEOUS
Section 3.1. Notices. All demands, notices and communications hereunder
shall be in writing and given by personal delivery, recognized overnight courier
or transmitted by telecopy, if to Seller, addressed to Banque Paribas, New York
Branch, The Equitable Tower, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx X. Xxxxxx, Director, Fax number (000) 000-0000, Telephone
number (000) 000-0000, with a copy sent by like manner to Carb, Luria, Xxxx &
Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx
Xxxxxxx, Esq., Fax number (000) 000-0000, Telephone number (000) 000-0000, or to
such other address as Seller may designate in writing to Purchaser; and if to
Purchaser, addressed to Health and Retirement Properties Trust, 000 Xxxxxx
Xxxxxx, Xxxxxx, XX 00000, Attention: Xx. Xxxxx X. Xxxxxxx, Fax number (617)
000-0000, Telephone number (000) 000-0000, with a copy sent by like manner to
Xxxxxxxx & Worcester LLP, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx, XX 00000, Attention:
Xxxxxxxx X. Xxxxx, Esq., Fax number (000) 000-0000, Telephone number (617)
000-0000, or to such other address as Purchaser may designate in writing to
Seller. A copy of any notices given by telecopy shall also be sent by
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recognized overnight courier. Notices shall be deemed given upon receipt or
refusal thereof.
Section 3.2. Inspection by Seller. Seller shall be entitled to retain
copies of the Loan Documents for its file. After the transfer of documents or
files to Purchaser pursuant to the terms of this Agreement, Purchaser agrees
that Seller, at Seller's expense, shall have the continuing right to use,
inspect, and make extracts from or copies of any such documents or records, upon
reasonable notice to Purchaser at the place where such documents are maintained
by Purchaser. Purchaser further agrees to allow Seller, at Seller's expense, to
review original documents for any lawful purpose and upon reasonable terms and
conditions and upon reasonable notice to Purchaser. The provisions of this
Section 3.2 shall survive the Closing.
Section 3.3. Meaning of Certain Terms. (a) The use of the terms
"herein," "hereunder," and "hereof" and terms of like import shall refer to this
Agreement in its entirety and not to any particular Article, Section or other
subdivision of this Agreement unless indicated to the contrary.
(b) The term "business day" shall mean any day on which the
New York Stock Exchange is open for business.
Section 3.4. Purchaser's Indemnification Covenants. Purchaser shall
indemnify, save and keep Seller and Agent, and its successors and assigns,
harmless against and from all liabilities, demands, claims, actions or causes of
action, assessments, losses, fines, penalties, costs, damages and expenses
(including, without limitation, reasonable attorneys' fees and disbursements)
sustained or incurred by Seller or Agent or its successors and assigns, as a
result of or arising out of or by virtue of:
(a) The inaccuracy of any representation or warranty
made by Purchaser to Seller herein;
(b) The breach by Purchaser of any of the covenants
of this Agreement to be performed by it; and
(c) The breach by Purchaser of any of the obligations
under the Loan Documents assumed by Purchaser.
The provisions of this Section shall survive the Closing or any other
termination of this Agreement.
Section 3.5. Broker. Purchaser, Agent and each Lender severally hereby
warrants and represents to the others that it has not dealt with any broker in
connection with this transaction except LaSalle Partners Corporate and Financial
Services, Inc. (the "Broker"). Seller is responsible for any fee due to Broker
with respect to the transactions contemplated in this Agreement pursuant to a
separate written agreement. Further, each of Purchaser, Agent and each Lender,
severally (each of the foregoing, in such capacity, the "Indemnifying Party"),
agrees to indemnify and
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hold harmless the others from any loss, cost or expense which any such
non-indemnifying party or parties may incur as a result of any inaccuracy in the
Indemnifying Party's warranties and representations as set forth in the prior
sentence. Notwithstanding anything to the contrary set forth in this Agreement,
the provisions of this Section 3.5 shall survive the Closing or any other
termination of this Agreement or voidance of this Agreement.
Section 3.6. Confidentiality; Publicity.
(a) As used in this Agreement, "Confidential Information"
shall mean any of the terms and conditions of this Agreement and the
transactions contemplated thereby. During the term of this Agreement, and for a
period ending at the first to occur of (i) Closing, or (ii) one year after the
end of the term of this Agreement by any other means, Purchaser shall treat any
Confidential Information disclosed by or otherwise obtained from Seller or
Seller's affiliates under this Agreement or in connection therewith as
confidential and proprietary and Purchaser shall not disclose such Confidential
Information to any third party (other than its consultants and counsel who shall
be instructed to preserve such confidentiality). Purchaser shall use the same
care to keep Confidential Information confidential as Purchaser uses to preserve
the confidentiality of its own confidential information having a high degree of
competitive significance and shall take appropriate measures to ensure that its
employees are bound to the same degree that Purchaser is under this Agreement.
This obligation of confidentiality does not apply to any Confidential
Information which: (i) is already known to Purchaser, (ii) is or becomes
publicly known, (iii) is lawfully obtained by Purchaser from a third party on a
non-confidential basis, (iv) if and to the extent that a judicial or
governmental authority having jurisdiction over Purchaser orders or requires
disclosure, or (v), if and to the extent, is disclosed in documents which are
recorded and evidence the transfer and assignment of the Loan or are submitted
to a judicial or governmental authority having jurisdiction over Purchaser in
compliance with any applicable laws, rules or regulations pertaining to
Purchaser. The provisions of this Section shall survive the Closing or any other
termination of this Agreement.
(b) The parties agree that no party shall, with respect to
this Agreement and the transactions contemplated hereby, make any public
pronouncements or issue any press release regarding this Agreement or the
transactions contemplated hereby without the consent of the other party, which
consent shall not be unreasonably withheld, delayed or conditioned; provided,
however, that Purchaser acknowledges that no press release or other publicity
shall refer by name to Agent or any of the Lenders without the express written
consent of Agent or such Lender, as the case may be. Seller acknowledges that
Purchaser's shares are publicly traded on the New York Stock Exchange.
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Section 3.7. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement which is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement which is prohibited or unenforceable or is held to be void 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 prohibition or unenforceability in any
jurisdiction as to the Asset shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
Section 3.8. Further Assurances. Seller agrees, at no expense to
Seller, to execute and deliver such instruments and take such actions as
Purchaser may reasonably request in order to effectuate the purpose and to carry
out the terms of this Agreement, provided that the same are consistent with the
non-recourse, "as is" nature of the transaction and, except as set forth in each
Lender's Certificate and the Agent's Certificate, the absence of representations
or warranties on behalf of Seller and Agent.
Section 3.9. Captions; Internal References; Exhibits. The Article,
Section and Exhibit headings herein are for convenience only and shall not limit
or otherwise affect the construction hereof. References to Articles, Sections,
Subsections, Exhibits or other subdivisions contained herein are to the
respective Articles, Sections, Subsections, Exhibits or other subdivisions of
the Agreement unless stated to the contrary. All Exhibits annexed hereto are
made a part hereof.
Section 3.10. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns. Except as expressly permitted by the terms hereof, this
Agreement cannot be assigned, pledged or hypothecated by any Purchaser without
the written consent of the Agent; provided, however, that Purchaser may assign
its rights under this Agreement to any affiliate of Purchaser, provided that (i)
no such assignment shall relieve Purchaser of its obligations hereunder or under
the instruments contemplated to be executed by Purchaser pursuant to this
Agreement including, without limitation, the Assignment, (ii) as a condition to
such assignment, the assignee shall assume all of the obligations of Purchaser
hereunder, by a writing reasonably acceptable to Agent, and (iii) no such
assignment shall be effective, and the assignee shall have no rights hereunder,
unless and until a copy of said written agreement, duly executed by Purchaser
and the assignee, shall have been delivered to Agent.
Section 3.11. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
13
WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS. The parties acknowledge that this Agreement was prepared and
negotiated in New York, that the Agent is located in New York, that the closing
is to occur in New York and that there is a substantial nexus with respect to
this Agreement to the State of New York.
Section 3.12. Waiver of Trial by Jury. PURCHASER AND SELLER EACH HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE (TO THE EXTENT PERMITTED BY
APPLICABLE LAW) ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE
ARISING UNDER OR RELATING TO THIS AGREEMENT.
Section 3.13. Execution in Counterpart. This Agreement may be executed
in any number of counterparts, each of which so executed shall be deemed to be
an original, but all such counterparts shall together constitute but one and the
same instrument.
Section 3.14. No Recording. Neither this Agreement nor any memorandum
hereof shall be recorded by Purchaser. Any violation by Purchaser of this
section shall be deemed a material breach by Purchaser of its obligations under
this Agreement.
Section 3.15. Miscellaneous. This Agreement supersedes all prior
Agreements and understandings relating to the subject matter hereof. Neither
this Agreement nor any term hereof may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge or termination is
sought.
Section 3.16. Non-liability of Trustees. The Declaration of Trust of
Purchaser, a copy of which is duly filed with the Department of Assessments and
Taxation of the State of Maryland, provides that the name "Health and Retirement
Properties Trust" refers to the trustees under such Declaration of Trust
collectively as trustees, but not individually or personally, and that no
trustee, officer, shareholder, employee or agent of Purchaser shall be held to
any personal liability, jointly or severally, for any obligation of, or claim
against, Purchaser. All persons dealing with Purchaser, in any way shall look
only to the assets of Purchaser for the payment of any sum or the performance of
any obligation.
Section 3.17. Loan Administration And Certain Other Matters During
Executory Period.
(a) In the event that, after the date hereof, Seller takes any
of the following actions:
(i) Agrees to any modification or amendment of the Loan
Documents without Purchaser's prior written consent;
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(ii) Exercises any right or remedy of Seller under the Loan
Documents the effect of which is to accelerate payments due
without the prior written consent of Purchaser; or
(iii) Alienates, assigns, pledges or otherwise transfers any
interest in the Loan Documents to any person or entity other than
Purchaser;
then, in such event, Seller shall give Purchaser notice thereof
and Purchaser shall have the right to terminate this Agreement by
notice given within three (3) business days after receipt of
Seller's notice.
(b) From and after the date hereof, Agent covenants and agrees
with Purchaser that copies of all notices or communications sent to the Borrower
or Guarantors by Seller or received by Seller with to the Loan Documents shall
promptly be sent to Purchaser.
(c) Whether or not (i) Borrower or any Guarantor seeks relief,
or an involuntary proceeding is filled against any such party, under any
applicable Federal or state bankruptcy, insolvency, reorganization or similar
law, (ii) Borrower or any Guarantor institutes any litigation with respect to
the Loan, or otherwise, against Purchaser or Seller, or (iii) any casualty or
condemnation event occurs with respect to the Mortgaged Property, Purchaser
shall continue to be obligated to perform all of its obligations in accordance
with the terms of this Agreement.
(d) During the term of this Agreement, Agent and its
affiliates and representatives, including, without limitation, the Broker, shall
not solicit or accept proposals with respect to the sale or discounted pay-off
of the Loan from any party other than Purchaser. If this Agreement shall be
terminated pursuant to Section 1.9 and, during the sixty (60) day period after
the date of this Agreement, Agent shall transfer the Loan to any person or
entity or accept a discounted payoff for an amount in excess of the Purchase
Price, Agent shall pay such excess to Purchaser upon receipt thereof.
Notwithstanding anything to the contrary set forth in this Agreement, the
provisions of this paragraph shall survive any termination of this Agreement.
(e) Agent shall cooperate with the reasonable requests of
Purchaser, at Purchaser's expense, in connection with the defense by Purchaser
of any claims made by the Borrower or the Guarantors relating to actions by
Seller with respect to the Loan prior to the Closing Date. The provisions of
this paragraph (e) shall survive the Closing.
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IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed by their respective officers thereunto duly authorized as of the date
first above written.
SELLER:
BANQUE PARIBAS, AS AGENT
NEW YORK BRANCH
By:/s/_____________________________
Name:
Title:
PURCHASER:
HEALTH AND RETIREMENT
PROPERTIES TRUST
By:/s/_____________________________
Name:
Title:
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The following schedules and exhibits have been omitted and will be
provided to the Securities and Exchange Commission upon request:
EXHIBIT A
LIST OF LENDERS
EXHIBIT B
DESCRIPTION OF THE LAND
EXHIBIT C
FORM OF ALLONGE
EXHIBIT D
FORM OF ASSIGNMENT AND ASSUMPTION
OF MORTGAGE AND ASSIGNMENT OF RENTS
AND CERTAIN OTHER LOAN DOCUMENTS
EXHIBIT E
FORM OF ASSIGNMENT AND ASSUMPTION
FOR SERVICING AGREEMENT
EXHIBIT F
FORM OF LENDER'S CERTIFICATE
EXHIBIT G
FORM OF AGENT'S CERTIFICATE