Exhibit 10.9
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "AGREEMENT") is entered into as of this
31st day of December, 2001, by and among (i) FIVE STAR QUALITY CARE TRUST, a
Maryland business trust (the "TENANT"), and (ii) each of the other parties
identified on the signature page hereof (collectively, the "SECURED PARTIES").
W I T N E S S E T H:
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WHEREAS, pursuant to that certain Master Lease Agreement, dated as of
the date hereof (as amended from time to time, the "MASTER LEASE"), the Secured
Parties leased to the Tenant and the Tenant leased from the Secured Parties,
certain premises as more particularly described in the Master Lease, subject to
and upon the terms and conditions set forth in the Master Lease; and
WHEREAS, as security for the payment and performance of each and every
obligation and liability of the Tenant to the Secured Parties, whether now
existing or hereafter arising, under the Master Lease or any other document or
agreement executed and delivered pursuant thereto, including, without
limitation, the payment of the Rent (this and other capitalized terms used and
not otherwise defined herein having the meanings ascribed to such terms in
SECTION 1), and the payment and performance of each and every other obligation
of the Tenant to the Secured Parties, whether now existing or hereafter arising,
whether direct or indirect, absolute or contingent, due or to become due
(collectively, the "OBLIGATIONS"), the Tenant has agreed to grant to the Secured
Parties a first and perfected lien and security interest in the Collateral;
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 parties hereto hereby
agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the following terms
shall have the meanings specified below. Except as otherwise defined, terms
defined in the Uniform Commercial Code and used herein without definition shall
have the meanings given such terms in the Uniform Commercial Code.
"AFFILIATED PERSON" shall have the meaning given such term in the
Master Lease.
"BUSINESS DAY" shall have the meaning given such term in the Master
Lease.
"COLLATERAL" shall mean all of the Tenant's right, title and interest
in and under or arising out of all and any personal property, intangibles and
fixtures of any type or description (other than Excluded Collateral), wherever
located and now existing or hereafter arising, or which constitute or arise from
the operation, maintenance or repair of the Leased Property or any portion
thereof, together with any and all additions and accessions thereto and
replacements, products, proceeds (including, without limitation, proceeds of
insurance) and supporting obligations thereof, including, but not limited to,
the following:
(a) all goods, including, without limitation, all Equipment; and
(b) all General Intangibles; and
(c) all other personal property or fixtures of any nature
whatsoever which relate to the operation, maintenance or
repair of the Leased Property, or any portion thereof, and all
property from time to time described in any financing
statement signed by the Tenant naming the Secured Parties as
Secured Parties; and
(d) all claims, rights, powers or privileges and remedies relating
to the foregoing or arising in connection therewith,
including, without limitation, all Licenses and Permits which
Tenant legally may grant a security interest in, rights to
make determinations, to exercise any election (including, but
not limited to, election of remedies) or option or to give or
receive any notice, consent, waiver or approval; all liens,
security, guaranties, endorsements, warranties and indemnities
and all insurance, eminent domain and condemnation awards and
claims therefor relating thereto or arising in connection
therewith; all rights to property forming the subject matter
of any of the foregoing, including, without limitation, rights
to stoppage in transit and rights to returned or repossessed
property; all writings relating to the foregoing or arising in
connection therewith; and
(e) all contract rights, general intangibles and other property
rights of any nature whatsoever arising out of or in
connection with any of the foregoing (other than Excluded
Collateral), including, without
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limitation, payments due or to become due, whether as
repayments, reimbursements, contractual obligations,
indemnities, damages or otherwise.
"EQUIPMENT" shall mean all buildings, structures, improvements,
fixtures and items of machinery, equipment and other tangible personal property
which constitute, arise from or relate to the operation, maintenance or repair
of the Leased Property or any portion thereof, together with all repairs,
replacements, improvements, substitutions, extensions or renewals thereof or
additions thereto, all parts, additions and accessories incorporated therein or
affixed thereto, and all "equipment" as such term is defined in the Uniform
Commercial Code, and all cash and non-cash proceeds therefrom.
"EVENT OF DEFAULT" shall have the meaning given such term in SECTION 6.
"EXCLUDED COLLATERAL" shall mean Accounts or Chattel Paper, Support
Obligations, General Intangibles or Deposit Accounts relating to such Accounts
or Chattel Paper, Instruments or Investment Property evidencing or arising from
such Accounts or Chattel Paper, any documents, books, records or other
information (including, without limitation, computer programs, tapes, discs,
punch cards, data processing software and related property and rights)
maintained with respect to any of the foregoing or any Proceeds of any of the
foregoing.
"FACILITIES" shall have the meaning given such term in the Master
Lease.
"GENERAL INTANGIBLES" shall mean all present and future general
intangibles and contract rights (other than Excluded Collateral) which
constitute, arise from or relate to the operation, maintenance or repair of the
Leased Property, or any portion thereof, including, but not limited to, all
causes of action, corporate or business records, inventions, designs, patents,
patent applications, trademarks, trademark registrations and applications
therefor, goodwill, trade names, trade secrets, trade processes, copyrights,
copyright registrations and applications therefor, franchises, customer lists,
computer programs, claims under guaranties, tax refund claims, rights and claims
against carriers and shippers, leases, claims under insurance policies, all
rights to indemnification and all other intangible personal property of every
kind and nature which constitutes, arises from or relates to the operation,
maintenance or repair of the Leased Property, or any portion thereof.
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"INSTRUMENT" shall have the meaning give such term in Article 9 of the
Uniform Commercial Code.
"MASTER LEASE" shall have the meaning given such term in the preambles
to this Agreement.
"LEASED PROPERTY" shall have the meaning given such term in the Master
Lease.
"LICENSES" shall mean all certificates of need, licenses, permits,
rights of use, covenants or rights otherwise benefiting or permitting the use
and operation of each applicable Property or any part thereof pertaining to the
operation, maintenance or repair of such Property or any portion thereof.
"OBLIGATIONS" shall have the meaning given such term in the preambles
to this Agreement.
"OVERDUE RATE" shall have the meaning given such term in the Master
Lease.
"PERMITS" shall mean all permits, approvals, consents, waivers,
exemptions, variances, franchises, orders, authorizations, rights and licenses
obtained or hereafter obtained from any federal, state or other governmental
authority or agency relating to the operation, maintenance or repair, each
applicable Property, or any portion thereof.
"PERSON" shall have the meaning given such term in the Master Lease.
"PROPERTY" shall have the meaning given such term in the Master Lease.
"RENT" shall have the meaning given such term in the Master Lease.
"UNIFORM COMMERCIAL CODE" means Article 9 of the Uniform Commercial
Code as in effect in the Commonwealth of Massachusetts from time to time.
SECTION 2. SECURITY INTEREST. As security for the prompt payment and
performance of all the Obligations, the Tenant hereby grants, pledges, transfers
and assigns to the Secured Parties, their successors and assigns and all other
holders from time to time of the Obligations, a continuing security interest
under the Uniform Commercial Code from time to time in effect in the
jurisdiction in which any of the Collateral is located in and a continuing lien
upon all of the Tenant's right, title and
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interest in the Collateral, together with any and all additions thereto and
replacements, products and proceeds thereof, whether now existing or hereafter
arising or acquired and wherever located.
SECTION 3. GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. The
Tenant represents, warrants and covenants, which representations, warranties and
covenants shall survive execution and delivery of this Agreement, as follows:
(a) Each of the warranties and representations of the Tenant
contained herein, in the Master Lease or in any other document executed in
connection herewith or therewith are true and correct on the date hereof.
(b) Except for the lien granted to the Secured Parties
pursuant to this Security Agreement and any liens permitted under the Master
Lease, the Tenant is, and as to the Collateral acquired from time to time after
the date hereof the Tenant will be, the owner of all the Collateral free from
any lien, security interest, encumbrance or other right, title or interest of
any Person, except for the security interest of the Secured Parties therein, and
the Tenant shall defend the Collateral against all claims and demands of all
Persons at any time claiming the same or any interest therein adverse to the
Secured Parties. The lien granted in this Agreement by the Tenant to the Secured
Parties in the Collateral is not prohibited by and does not constitute a default
under any agreements or other instruments constituting a part of the Collateral,
and no consent is required of any Person to effect such lien which has not been
obtained.
(c) Except as permitted under the Master Lease, there is no
financing statement (or similar statement or instrument of registration under
the law of any jurisdiction) now on file or registered in any public office
covering any interest of any kind in the Collateral, or intended so to be, which
has not been terminated, and so long as this Agreement remains in effect or any
of the Obligations or any obligations of any Affiliated Person of the Tenant to
the Secured Parties remain unpaid, the Tenant will not execute and there will
not be on file in any public office any financing statement (or similar
statement or instrument of registration under the law of any jurisdiction) or
statements relating to the Collateral, except financing statements filed or to
be filed in respect of and covering the security interest of the Secured
Parties.
(d) The chief executive office and the principal place of
business of the Tenant are as set forth in SCHEDULE 1
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and the Tenant will not move its chief executive office or establish any other
principal place of business except to such new location as the Tenant may
establish in accordance with this SECTION 3(D). The location of each Facility
comprising a portion of the Leased Property is as set forth in SCHEDULE 2. The
originals of all documents evidencing Collateral and the only original books of
account and records of the Tenant relating thereto are, and will continue to be,
kept at such chief executive office or the applicable Facility, as the case may
be, or at such new location as the Tenant may establish in accordance with this
SECTION 3(D). The Tenant shall not move its chief executive office or establish
any other principal place of business until (i) the Tenant shall have given to
the Secured Parties not less than ten (10) days' prior written notice of its
intention to do so, which notice shall clearly describe such new location and
provide such other information in connection therewith as the Secured Parties
may reasonably request, and (ii) with respect to such new location, the Tenant
shall have taken such action, satisfactory to the Secured Parties (including,
without limitation, all action required by SECTION 5), to maintain the security
interest of the Secured Parties in the Collateral.
(e) All tangible personal property owned on the date hereof by
the Tenant to be used in connection with the operation or maintenance of the
Leased Property, or any portion thereof, is located at each applicable Property
or is in transit to such Property from the vendor thereof. The Tenant agrees
that (i) all such property held by the Tenant on the date hereof, once at each
applicable Property, shall remain at such Property and (ii) all such property
subsequently acquired by the Tenant shall immediately upon acquisition be
transferred to and remain at the applicable Property.
(f) The Tenant's corporate name and organizational
identification number are as set forth on the signature page hereto. The name
under which each of the Facilities is operated is set forth on SCHEDULE 2. The
Tenant shall not (i) change such names without providing the Secured Parties
with thirty (30) days' prior written notice and making all filings and taking
all such other actions as the Secured Parties determines are necessary or
appropriate to continue or perfect the security interest granted hereunder, (ii)
change its corporate organizational number, nor (iii) conduct its business in
any other name or take title to any Collateral in any other name while this
Agreement remains in effect. Except as otherwise set forth on SCHEDULE 1, the
Tenant has not ever had any other name nor conducted business in any other name
in any jurisdiction.
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The Tenant is organized as a Maryland business trust. Subject to the terms and
conditions of the Master Lease, the Tenant shall not change its organizational
structure or jurisdiction of organization without giving at least thirty (30)
days' prior written notice thereof to the Secured Parties.
(g) The Secured Parties are authorized (but are under no obligation) to
make, upon ten (10) Business Days' notice to the Tenant (except in the case of
exigent circumstances, in which circumstances upon such notice, if any, as may
then be reasonably practical), any payments which in the Secured Parties'
opinion are necessary to:
(i) discharge any liens which have or may take priority
over the lien hereof; and
(ii) pay all premiums payable on the insurance policies
referred to in the Master Lease or any other document
or agreement executed in connection therewith or
herewith, upon the failure of the Tenant to make such
payments within the time permitted therein.
The Tenant shall have no claim against the Secured Parties by reason of its
decision not to make any payments or perform such obligations permitted under
this SECTION 3(G). The Tenant shall repay to the Secured Parties any sums paid
by the Secured Parties upon demand. Any sums paid and expenses incurred by the
Secured Parties pursuant to this paragraph shall bear interest at the Overdue
Rate.
(h) If any of the Collateral at any time becomes evidenced by
an Instrument, the Tenant shall promptly deliver such Instrument to the Secured
Parties, appropriately endorsed to the order of the Secured Parties, to be held
pursuant to this Agreement.
(i) The Tenant shall not sell, transfer, change the
registration, if any, of, dispose of, attempt to dispose of, or substantially
modify or abandon the Collateral or any material part thereof, other than as
permitted under the Master Lease, without the prior written consent of the
Secured Parties. Except as permitted under the Master Lease, the Tenant shall
not create, incur, assume or suffer to exist any lien upon any of the Collateral
without the prior written consent of the Secured Parties.
(j) The Tenant shall not assert against the Secured Parties
any claim or defense which the Tenant may have against
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any seller of the Collateral or any part thereof or against any Person with
respect to the Collateral or any part thereof.
(k) The Tenant shall, upon demand, pay to the Secured Parties
the amount of any and all reasonable expenses, including the reasonable fees and
expenses of its counsel and of any experts and agents, which the Secured Parties
may incur in connection with (i) the administration of this Agreement, (ii) the
custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Collateral, (iii) the exercise or enforcement of
any of the rights of the Secured Parties hereunder and under such other
agreements or (iv) the failure by the Tenant to perform or observe any of the
provisions hereof.
(l) The Tenant shall indemnify and hold harmless the Secured
Parties from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever which may be imposed on, incurred by or asserted
against the Secured Parties in any way relating to or arising out of this
Agreement or arising out of the Tenant's obligations under any other documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or the enforcement of any of the terms hereof or
of any such other documents.
SECTION 4. SPECIAL PROVISIONS CONCERNING EQUIPMENT. The Tenant shall
not impair the rights of the Secured Parties in the Equipment. Regardless of the
manner of the affixation of any Equipment to real property, the Equipment so
attached shall at all times constitute and remain personal property. The Tenant
retains all liability and responsibility in connection with the Equipment and
the liability of the Tenant to pay the Obligations shall in no way be affected
or diminished by reason of the fact that such Equipment may be lost, destroyed,
stolen or damaged or for any reason whatsoever have become unavailable to the
Tenant. Upon the request of the Secured Parties, the Tenant shall provide to the
Secured Parties a current list of Equipment.
SECTION 5. FINANCING STATEMENTS; DOCUMENTARY STAMP TAXES.
(a) The Tenant shall, at its own expense, make, execute,
endorse, acknowledge, file and/or deliver to the Secured Parties from time to
time such lists, descriptions and designations of inventory, warehouse receipts,
bills of lading, documents of title, vouchers, invoices, schedules, confirmatory
assignments, conveyances, financing statements, transfer endorsements, powers of
attorney, certificates, reports and
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other assurances or instruments and take such further steps relating to the
Collateral and other property or rights covered by the security interest hereby
granted, which the Secured Parties reasonably deem appropriate or advisable to
perfect, preserve or protect their security interest in the Collateral. The
Tenant authorizes the Secured Parties to file any such financing statements
without the signature of the Tenant and the Tenant will pay all applicable
filing fees and related expenses. To the extent permitted by law, a carbon,
photographic or other reproduction of this Agreement or a financing statement
shall be sufficient as a financing statement.
(b) The Tenant shall procure, pay for, affix to any and all
documents and cancel any documentary tax stamps required by and in accordance
with, applicable law, and the Tenant shall indemnify and hold harmless the
Secured Parties from and against any liability (including interest and
penalties) in respect of such documentary stamp taxes.
SECTION 6. EVENT OF DEFAULT. For purposes of this Agreement, the term
"EVENT OF DEFAULT" shall mean (a) the occurrence of an Event of Default under
the Master Lease or any document or agreement executed in connection therewith;
(b) the failure of the Tenant to comply with any of its covenants or obligations
under this Agreement and the continuance thereof for a period of ten (10)
Business Days after written notice thereof; (c) any representation or warranty
contained herein or made by the Tenant in connection herewith shall prove to
have been false or misleading in any material respect when made; or (d) the
occurrence of any default or event of default under any document, instrument or
agreement evidencing the Obligations.
SECTION 7. REMEDIES.
(a) Upon the occurrence and during the continuance of an Event
of Default, in addition to any rights and remedies now or hereafter granted
under applicable law, under the Master Lease or under any other documents or
agreements entered into in connection herewith or therewith, and not by way of
limitation of any such rights and remedies, the Secured Parties shall have all
of the rights and remedies of a secured party under the Uniform Commercial Code
as enacted in any applicable jurisdiction, and the right, without notice to, or
assent by, the Tenant, in the name of the Tenant or in the name of the Secured
Parties or otherwise:
(i) with respect to the General Intangibles to ask for,
demand, collect, receive, compound and give
acquittance therefor or any part thereof, to
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extend the time of payment of, compromise or settle
for cash, credit or otherwise, and upon any terms and
conditions, any thereof, to exercise and enforce any
rights and remedies in respect thereof, and to file
any claims, commence, maintain or discontinue any
actions, suits or other proceedings deemed by the
Secured Parties necessary or advisable for the
purpose of collecting or enforcing payment and
performance thereof;
(ii) to take possession of any or all of the Collateral
and to use, hold, store, operate, merge and/or
control the same and to exclude the Tenant and all
Persons claiming under it wholly or partly therefrom,
and, for that purpose, to enter, with the aid and
assistance of any Person or Persons and with or
without legal process, any premises where the
Collateral, or any part thereof, are, or may be,
placed or assembled, and to remove any such
Collateral;
(iii) from time to time, at the expense of the Tenant, to
make all such repairs, replacements, alterations,
additions and improvements to and of the Collateral
as the Secured Parties may reasonably deem proper; to
carry on the business and to exercise all rights and
powers of the Tenant in respect to the Collateral, as
the Secured Parties shall deem best, including the
right to enter into any and all such agreements with
respect to the leasing, management and/or operation
of the Collateral or any part thereof as the Secured
Parties may see fit; to collect and receive all
rents, issues, profits, fees, revenues and other
income of the same and every part thereof which
rents, issues, profits, fees, revenues and other
income may be applied to pay the expenses of holding
and operating the Collateral and of conducting the
business thereof, and of all maintenance, repairs,
replacements, alterations, additions and
improvements, and to make all payments which the
Secured Parties may be required or may elect to make,
if any, for taxes, assessments, insurance and other
charges upon the Collateral or any part thereof, and
all other payments which the Secured Parties may be
required or authorized to
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make under any provision of this Agreement
(including, without limitation, reasonable legal
costs and attorneys' fees);
(iv) to execute any instrument and do all other things
necessary and proper to protect and preserve and
realize upon the Collateral and the other rights
contemplated hereby;
(v) upon notice to such effect, to require the Tenant to
deliver, at the Tenant's expense, any or all
Collateral which is reasonably movable to the Secured
Parties at a place designated by the Secured Parties,
and after delivery thereof the Tenant shall have no
further claim to or interest in the Collateral; and
(vi) without obligation to resort to other security, at
any time and from time to time, to sell, re-sell,
assign and deliver all or any of the Collateral, in
one or more parcels at the same or different times,
and all right, title and interest, claim and demand
therein and right of redemption thereof, at public or
private sale, for cash, upon credit or for future
delivery, and at such price or prices and on such
terms as the Secured Parties may determine, with the
amounts realized from any such sale to be applied to
the Secured Obligations in the manner determined by
the Secured Parties.
The Tenant hereby agrees that all of the foregoing may be effected without
demand, advertisement or notice (except as hereinafter provided or as may be
required by law), all of which (except as hereinafter provided) are hereby
expressly waived, to the maximum extent permitted by law. The Secured Parties
shall not be obligated to do any of the acts hereinabove authorized and in the
event that the Secured Parties elects to do any such act, the Secured Parties
shall not be responsible to the Tenant.
(b) Upon the occurrence and during the continuance of an Event
of Default, the Secured Parties may take legal proceedings for the appointment
of a receiver or receivers (to which the Secured Parties shall be entitled as a
matter of right) to take possession of the Collateral pending the sale thereof
pursuant either to the powers of sale granted by this Agreement or to a
judgment, order or decree made in any judicial proceeding for the foreclosure or
involving the enforcement of this Agreement. If, after the exercise of any or
all of such
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rights and remedies, any of the Obligations shall remain unpaid or unsatisfied,
the Tenant shall remain liable for any deficiency or performance thereof, as
applicable.
(c) Upon any sale of any of the Collateral, whether made under
the power of sale hereby given or under judgment, order or decree in any
judicial proceeding for the foreclosure or involving the enforcement of this
Agreement:
(i) the Secured Parties may bid for and purchase the
property being sold and, upon compliance with the
terms of sale, may hold, retain and possess and
dispose of such property in its own absolute right
without further accountability, and may, in paying
the purchase money therefor, deliver any instruments
evidencing the Obligations or agree to the
satisfaction of all or a portion of the Obligations
in lieu of cash in payment of the amount which shall
be payable thereon, and such instruments, in case the
amounts so payable thereon shall be less than the
amount due thereon, shall be returned to the Secured
Parties after being appropriately stamped to show
partial payment;
(ii) the Secured Parties may make and deliver to the
purchaser or purchasers a good and sufficient deed,
xxxx of sale and instrument of assignment and
transfer of the property sold;
(iii) all right, title, interest, claim and demand
whatsoever, either at law or in equity or otherwise,
of the Tenant of, in and to the property so sold
shall be divested; such sale shall be a perpetual bar
both at law and in equity against the Tenant, its
successors and assigns, and against any and all
Persons claiming or who may claim the property sold
or any part thereof from, through or under the
Tenant, its successors or assigns;
(iv) the receipt of the Secured Parties or of the officers
thereof making such sale shall be a sufficient
discharge to the purchaser or purchasers at such sale
for his or their purchase money, and such purchaser
or purchasers, and his or their assigns or personal
representatives, shall not, after paying such
purchase money and receiving such receipt of the
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Secured Parties or of such officer therefor, be
obliged to see to the application of such purchase
money or be in any way answerable for any loss,
misapplication or nonapplication thereof; and
(v) to the extent that it may lawfully do so, the Tenant
agrees that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take
advantage of, any appraisement, valuation, stay,
extension or redemption laws, or any law permitting
it to direct the order in which the Collateral or any
part thereof shall be sold, now or at any time
hereafter in force, which may delay, prevent or
otherwise affect the performance or enforcement of
this Agreement or any other document, the Master
Lease or any other document or agreement entered into
in connection herewith or therewith, and the Tenant
hereby expressly waives all benefit or advantage of
any such laws and covenants that it will not hinder,
delay or impede the execution of any power granted or
delegated to the Secured Parties in this Agreement,
but will suffer and permit the execution of every
such power as though no such laws were in force.
In the event of any sale of Collateral pursuant to this SECTION 7, the Secured
Parties shall, at least ten (10) days before such sale, give the Tenant written
notice of its intention to sell, except that, if the Secured Parties shall
determine in its reasonable discretion that any of the Collateral threatens to
decline in value, any such sale may be made upon three (3) days' written notice
to the Tenant, which time periods the Tenant hereby agrees are reasonable.
(d) The Secured Parties are hereby irrevocably appointed the
true and lawful attorney-in-fact of the Tenant in its name and stead, to make
all necessary deeds, bills of sale and instruments of assignment and transfer of
the property sold pursuant to this SECTION 7 and for such other purposes as are
necessary or desirable to effectuate the provisions of this Agreement, and for
that purpose it may execute and deliver all necessary deeds, bills of sale and
instruments of assignment and transfer, and may substitute one or more Persons
with like power, the Tenant hereby ratifying and confirming all that its said
attorney, or such substitute or substitutes, shall lawfully
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do by virtue hereof. If so requested by the Secured Parties or by any purchaser,
the Tenant shall ratify and confirm any such sale or transfer by executing and
delivering to the Secured Parties or to such purchaser all property, deeds,
bills of sale, instruments or assignment and transfer and releases as may be
designated in any such request.
SECTION 8. APPLICATION OF MONEYS. All moneys which the Secured Parties
shall receive pursuant hereto shall first be applied (to the extent thereof) to
the payment of all reasonable costs and expenses incurred in connection with the
administration and enforcement of, or the preservation of any rights under, this
Agreement or any of without limitation, the reasonable fees and disbursements of
its counsel and agents), and the balance, if any, shall be applied first to
accrued and unpaid interest, charges and fees on, and then to outstanding
principal of, any Obligations of the Tenant (or its affiliates) to the Secured
Parties, and then to any other amounts outstanding on any such Obligations and
then as required by law to any other parties having an interest therein.
SECTION 9. WAIVERS, ETC. The Tenant, on its own behalf and on behalf of
its successors and assigns, hereby waives presentment, demand, notice, protest
and, except as is otherwise specifically provided herein, all other demands and
notices in connection with this Agreement or the enforcement of the rights of
the Secured Parties hereunder or in connection with any Obligations or any
Collateral; waives all rights to require a marshaling of assets by the Secured
Parties; consents to and waives notice of (i) the substitution, release or
surrender of any Collateral, (ii) the addition or release of Persons primarily
or secondarily liable on any Obligation or on any Collateral, (iii) the
acceptance of partial payments on any Collateral and/or the settlement or
compromise thereof, (iv) any requirement of diligence or promptness on the part
of the Secured Parties in the enforcement of any rights in respect of any
Collateral or any other agreement or instrument directly or indirectly relating
thereto, and (v) any enforcement of any present or future agreement or
instrument relating directly or indirectly to the Collateral. No delay or
omission on the part of the Secured Parties or any holder of Obligations in
exercising any right hereunder shall operate as a waiver of such right or of any
other right hereunder. No waiver of any such right on any one occasion shall be
construed as a bar to or waiver of any such right on any future occasion. No
course of dealing between the Tenant and the Secured Parties or any holder of
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Obligations, nor any failure to exercise, nor any delay in exercising, on the
part of the Secured Parties or any holder of Obligations, any right, power or
privilege hereunder or under any of the Obligations, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or thereunder preclude any other or further exercise
thereof, or the exercise of any other right, power or privilege.
The Tenant further waives any right it may have under the constitution
of any state or commonwealth in which any of the Collateral may be located, or
under the Constitution of the United States of America, to notice (except for
notice specifically required hereby) or to a judicial hearing prior to the
exercise of any right or remedy provided by this Agreement to the Secured
Parties, and waives its rights, if any, to set aside or invalidate any sale duly
consummated in accordance with the foregoing provisions hereof on the grounds
(if such be the case) that the sale was consummated without a prior judicial
hearing. THE TENANT'S WAIVERS UNDER THIS SECTION 9 HAVE BEEN MADE VOLUNTARILY,
INTELLIGENTLY AND KNOWINGLY AND AFTER THE TENANT HAS BEEN APPRISED AND COUNSELED
BY ITS ATTORNEYS AS TO THE NATURE THEREOF AND ITS POSSIBLE ALTERNATIVE RIGHTS.
The Secured Parties shall not be required to marshal any present or
future security for (including without limitation this Agreement and the
Collateral pledged hereunder), or guaranties of, the Obligations or any of them,
or to resort to such security or guaranties in any particular order; and all of
the rights hereunder and in respect of such securities and guaranties shall be
cumulative and in addition to all other rights, however existing or arising. To
the maximum extent permitted by applicable law, the Tenant hereby agrees that it
will not invoke any law relating to the marshalling of collateral which, might
cause delay in or impede the enforcement of the Secured Parties' rights under
this Agreement or under any other instrument evidencing any of the Obligations
or under which any of the Obligations is outstanding or by which any of the
Obligations is secured or guaranteed, and, to the maximum extent permitted by
applicable law, the Tenant hereby irrevocably waives the benefits of all such
laws.
SECTION 10. FURTHER ASSURANCES AS TO COLLATERAL; ATTORNEY-IN-FACT. From
time to time hereafter, the Tenant will execute and deliver, or will cause to be
executed and delivered, such additional instruments, certificates or documents
(including, without limitation, financing statements, renewal statements,
mortgages, collateral assignments and other security documents), and will take
all such actions as the Secured Parties may reasonably request, for the purposes
of implementing or
-15-
effectuating the provisions of this Agreement or of more fully perfecting or
renewing the Secured Parties' rights with respect to the Collateral (or with
respect to any additions thereto or replacements or proceeds thereof or with
respect to any other property or assets hereafter acquired by the Tenant which
may be deemed to be a part of the Collateral) pursuant hereto and thereto. The
Secured Parties are hereby appointed the attorney-in-fact, with full power of
substitution, of the Tenant for the purpose of carrying out the provisions of
this Agreement and taking any action, including, without limitation, executing,
delivering and filing applications, certificates, instruments and other
documents and papers with governmental authorities, and executing any
instruments, including without limitation financing or continuation statements,
deeds to secure debt, mortgages, assignments, conveyances, assignments and
transfers which are required to be taken or executed by the Tenant under this
Agreement, on its behalf and in its name which appointment is coupled with an
interest, is irrevocable and durable and shall survive the subsequent
dissolution, disability or incapacity of the Tenant.
SECTION 11. ARBITRATION. The Secured Parties or the Tenant may elect to
submit any dispute hereunder that has an amount in controversy in excess of
$250,000 to arbitration hereunder. Any such dispute shall be resolved in
accordance with the Commercial Arbitration Rules of the American Association
then pertaining and the decision of the arbitrators with respect to such dispute
shall be binding, final and conclusive on the parties.
In the event the Secured Parties or the Tenant shall elect to submit
any such dispute to arbitration hereunder, the Secured Parties and the Tenant
shall each appoint and pay all fees of a fit and impartial person as arbitrator
with at least ten (10) years' recent professional experience in the general
subject matter of the dispute. Notice of such appointment shall be sent in
writing by each party to the other, and the arbitrators so appointed, in the
event of their failure to agree within thirty (30) days after the appointment of
the second arbitrator upon the matter so submitted, shall appoint a third
arbitrator. If either the Secured Parties or the Tenant shall fail to appoint an
arbitrator, as aforesaid, for a period of twenty (20) days after written notice
from the other party to make such appointment, then the arbitrator appointed by
the party having made such appointment shall appoint a second arbitrator and the
two (2) so appointed shall, in the event of their failure to agree upon any
decision within thirty (30) days thereafter, appoint a third arbitrator. If such
arbitrators fail to agree
-16-
upon a third arbitrator within forty five (45) days after the appointment of the
second arbitrator, then such third arbitrator shall be appointed by the American
Arbitration Association from its qualified panel of arbitrators, and shall be a
person having at least ten (10) years' recent professional experience as to the
subject matter in question. The fees of the third arbitrator and the expenses
incident to the proceedings shall be borne equally between the Secured Parties
and the Tenant, unless the arbitrators decide otherwise. The fees of respective
counsel engaged by the parties, and the fees of expert witnesses and other
witnesses called for the parties, shall be paid by the respective party engaging
such counsel or calling or engaging such witnesses.
The decision of the arbitrators shall be rendered within thirty (30)
days after appointment of the third arbitrator. Such decision shall be in
writing and in duplicate, one counterpart thereof to be delivered to the Secured
Parties and one to the Tenant. A judgment of a court of competent jurisdiction
may be entered upon the award of the arbitrators in accordance with the rules
and statutes applicable thereto then obtaining.
The Secured Parties and the Tenant acknowledge and agree that, to the
extent any such dispute shall involve any Manager and be subject to arbitration
pursuant to such Manager's Management Agreement, the Secured Parties and the
Tenant shall cooperate to consolidate any such arbitration hereunder and under
such Management Agreement into a single proceeding.
SECTION 12. APPOINTMENT OF AGENT FOR SECURED PARTIES. Each of the
Secured Parties hereby appoints SPTMNR Properties Trust as its agent for the
following purposes under this Agreement (including, without limitation, the full
power and authority to act of the Secured Parties' behalf for such purposes):
(i) to give or receive notices, demands, claims and other communications on
behalf of the Secured Parties under this Agreement and (ii) to receive and hold
any and all Collateral which is to be delivered from time to time by the Tenant
to the Secured Parties in accordance with the terms and conditions of this
Agreement.
SECTION 13. MISCELLANEOUS.
(a) The Tenant agrees that its obligations and the rights of
the Secured Parties hereunder and in respect of the Obligations may be enforced
by specific performance hereof and thereof and by temporary, preliminary and/or
final injunctive relief relating hereto and thereto, without necessity for proof
-17-
by the Secured Parties or any holder of the Obligations that it would otherwise
suffer irreparable harm, and the Tenant hereby consents to the issuance of such
specific and injunctive relief.
(b) Any notice or demand upon the Tenant or the Secured
Parties shall be deemed to have been sufficiently given when given in accordance
with the provisions of the Master Lease.
(c) None of the terms and conditions of this Agreement may be
changed, waived, modified or varied in any manner whatsoever unless in writing
duly signed by the Tenant and the Secured Parties. No notice to or demand on the
Tenant in any case shall entitle the Tenant to any other or further notice or
demand in similar or other circumstances or constitute a waiver of any of the
rights of the Secured Parties to any other or further action in any
circumstances without notice or demand.
(d) The obligations of the Tenant hereunder shall remain in
full force and effect without regard to, and shall not be impaired by, (i) any
bankruptcy, insolvency, reorganization, arrangement, readjustment, composition,
liquidation or the like of the Tenant; (ii) any exercise or non-exercise, or any
waiver of, any right, remedy, power or privilege under or in respect of this
Agreement, the Master Lease or any document or agreement executed in connection
herewith or therewith, the Obligations or any security for any of the
Obligations; or (iii) any amendment to or modification of any of the Master
Lease or any document or agreement executed in connection herewith or therewith,
the Obligations or any security for any of the Obligations; whether or not the
Tenant shall have notice or knowledge of any of the foregoing. The rights and
remedies of the Secured Parties herein provided for are cumulative and not
exclusive of any rights or remedies which the Secured Parties would otherwise
have, including, without limitation, under the Master Lease or any document or
agreement executed in connection herewith or therewith. This Agreement is
intended as a supplement for and is not intended to supersede in any respect the
Master Lease or any document or agreement executed in connection herewith or
therewith.
(e) This Agreement shall be binding upon the Tenant and its
successors and assigns and shall inure to the benefit of the Secured Parties,
and its respective successors and assigns. All agreements, representations and
warranties made herein shall survive the execution and delivery of this
Agreement.
-18-
(f) The descriptive headings of the several sections of this
Agreement are inserted for convenience only and shall not in any way affect the
meaning or construction of any provision of this Agreement.
(g) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibitions or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
(h) This Agreement shall be interpreted, construed, applied
and enforced in accordance with the laws of the Commonwealth of Massachusetts
applicable to contracts between residents of Massachusetts which are to be
performed entirely within Massachusetts, regardless of (i) where this Agreement
is executed or delivered; or (ii) where any payment or other performance
required by this Agreement is made or required to be made; or (iii) where any
breach of any provision of this Agreement occurs, or any cause of action
otherwise accrues; or (iv) where any action or other proceeding is instituted or
pending; or (v) the nationality, citizenship, domicile, principle place of
business, or jurisdiction of organization or domestication of any party; or (vi)
whether the laws of the forum jurisdiction otherwise would apply the laws of a
jurisdiction other than the Commonwealth of Massachusetts; or (vii) any
combination of the foregoing. Notwithstanding the foregoing, to the extent that
matters of title, or creation, perfection and priority of the security interests
created hereby, or procedural issues of foreclosures are required to be governed
by the laws of the state in which the Collateral, or relevant part thereof, is
located, the laws of such State shall apply.
SECTION 12. NONLIABILITY OF TRUSTEES. THE DECLARATIONS OF TRUST
ESTABLISHING THE SECURED PARTIES, COPIES OF WHICH, TOGETHER WITH ALL AMENDMENTS
THERETO (THE "DECLARATIONS"), ARE DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS
AND TAXATION OF THE STATE OF MARYLAND, PROVIDE THAT THE NAMES "HRES2 PROPERTIES
TRUST," "SPTIHS PROPERTIES TRUST," "SPT-MICHIGAN TRUST" AND "SPTMNR PROPERTIES
TRUST" REFER TO THE TRUSTEES UNDER EACH DECLARATION COLLECTIVELY AS TRUSTEES,
BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER,
EMPLOYEE OR AGENT OF THE SECURED PARTIES SHALL BE HELD TO ANY PERSONAL
LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF OR CLAIM AGAINST, THE
SECURED PARTIES. ALL PERSONS DEALING WITH THE
-19-
SECURED PARTIES, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF THE SECURED
PARTIES FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
-20-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal as of the date first above written.
TENANT:
FIVE STAR QUALITY CARE TRUST
By: /s/ Xxxxx X. Xxxxxx Xx.
---------------------------------
Treasurer and Chief Financial
Officer
Corporate Organizational Number:
-------------------------------------
SECURED PARTIES:
HRES2 PROPERTIES TRUST
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Its: President
----------------------------
SPTIHS PROPERTIES TRUST
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Its: President
----------------------------
SPT-MICHIGAN TRUST
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Its: President
----------------------------
SPTMNR PROPERTIES TRUST
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Its: President
----------------------------
-21-
SCHEDULE 1
CHIEF EXECUTIVE OFFICE:
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
PRINCIPAL PLACE OF BUSINESS:
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
SCHEDULE 2
THE FACILITIES
ARIZONA:
LA MESA HEALTHCARE CENTER
0000 X. Xxxxxxx Xxxxxx
Xxxx, Xxxxxxx 00000
SUNQUEST VILLAGE OF YUMA
000 X. 00xx Xxxxxx
Xxxx, Xxxxxxx 00000
VILLAGE GREEN HEALTHCARE CENTER
0000 X. 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
CALIFORNIA:
LANCASTER HEALTHCARE CENTER
0000 Xxxx Xxxxxx X
Xxxxxxxxx, Xxxxxxxxxx 00000
LA SALETTE HEALTH AND REHABILITATION CENTER
000 X. Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
THOUSAND OAKS HEALTH CARE CENTER
93 W. Avenida de Los Arboles
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
VALLEY VIEW
0000 Xxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
VAN NUYS HEALTH CARE CENTER
0000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
COLORADO:
CEDARS HEALTHCARE CENTER
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
CHERRELYN HEALTHCARE CENTER
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
LA VILLA GRANDE CARE CENTER
0000 Xxxxxx Xxxxxxxxx Xxxxx
Xxxxx Xxxxxxxx, Xxxxxxxx 00000
XXXXXX HEIGHTS REHABILITATION & CARE CENTER
0000 Xxxxxxxxx Xxxx
Xxxxx Xxxxxxxx, Xxxxxxxx 00000
SKYLINE RIDGE NURSING & REHABILITATION CENTER
000 Xxxxxxxx
Xxxxx Xxxx, Xxxxxxxx 00000
SPRINGS VILLAGE CARE CENTER
000 Xxxx Xxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
WILLOW TREE CARE CENTER
0000 Xxxxx Xxxx
Xxxxx, Xxxxxxxx 00000
CONNECTICUT:
XXXXXXX HOUSE REHABILITATION CENTER
000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxxx 00000
HEALTH CENTER OF GREATER WATERBURY
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
GEORGIA:
AUTUMN BREEZE HEALTHCARE CENTER
0000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
COLLEGE PARK HEALTHCARE CENTER
0000 Xxxxxx Xxxxxx
Xxxxxxx Xxxx, Xxxxxxx 00000
GLENWOOD CARE CENTER
000 Xxxxx Xxxxxx X.X.X. Xxx 000
Xxxxxxxx, Xxxxxxx 00000
SOUTHLAND CARE CENTER
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
IOWA:
NORTHCREST CARE & REHABILITATION
00 Xxxxxxxxxx Xxxxx
Xxxxxxx Xxxxxx, Xxxx 00000
PACIFIC PLACE
00000 Xxxxx Xxxxxxx 000
Xxxxxxx Xxxxxxxx, Xxxx 00000
PARK PLACE
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
PRAIRIE RIDGE CARE & REHABILITATION
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
UNION PARK HEALTH SERVICES
0000 Xxxx 0xx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
WEST BRIDGE CARE & REHABILITATION
0000 Xxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
WESTRIDGE QUALITY CARE & REHABILITATION
000 Xxxxx Xxxxx
Xxxxxxxx, Xxxx 00000
KANSAS:
WOODHAVEN CARE CENTER
000 X 0xx Xxxxxx
Xxxxxxxxx, Xxxxxx 00000
MICHIGAN:
FARMINGTON HEALTH CARE CENTER
00000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
XXXXXX CARE CENTER
0000 Xxxx Xxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
MISSOURI:
NORTHVIEW MANOR
000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
NEBRASKA:
XXXXXXXXX CARE CENTER
000 Xxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
ASHLAND CARE CENTER
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
BLUE HILL CARE CENTER
000 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxx 00000
CENTRAL CITY CARE CENTER
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx Xxxx, Xxxxxxxx 00000
CRESTVIEW HEALTHCARE CENTER
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
EXETER CARE CENTER
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
GRANDVIEW MANOR
Broad Street and Xxxxxxx 0
Xxxxxxxx, Xxxxxxxx 00000
GRETNA COMMUNITY CARE CENTER
000 Xxxxx Xxxxxxx 0
Xxxxxx, Xxxxxxxx 00000
XXXXX VALLEY MANOR
0000 Xxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
MORYS HAVEN
0000 00xx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
XXXX XXXXX CARE CENTER
Xxxxx 0 Xxx 00X
Xxxxx, Xxxxxxxx 00000
SUTHERLAND CARE CENTER
000 Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
UTICA COMMUNITY CARE CENTER
0000 Xxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
WAVERLY CARE CENTER
00000 Xxxxx 000xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
WEDGEWOOD CARE CENTER
000 Xxxxxxx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxx 00000
WISCONSIN:
XXXXXXXXXXX EAST HEALTH & REHABILITATION CENTER
0000 X. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
GREENTREE HEALTH & REHABILITATION CENTER
00 Xxxxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxxx 00000
PINE MANOR HEALTHCARE CENTER
Xxxxx 0, Xxx 000
Xxxxxxxxxxxx, Xxxxxxxxx 00000
RIVER HILLS WEST HEALTHCARE CENTER
000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxx 00000
SUNNY HILLS HEALTH CARE CENTER
0000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
THE VIRGINIA HEALTH & REHABILITATION CENTER
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxx 00000
WOODLAND HEALTHCARE CENTER
00000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
WYOMING:
LARAMIE CARE CENTER
000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
WORLAND HEALTHCARE & REHABILITATION CENTER
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
