EXHIBIT 10.53
TRI-PARTY AGREEMENT
This TRI-PARTY AGREEMENT (this "Agreement") dated as of December 4, 2003
made by and among SNH ALT Mortgaged Properties Trust, a Maryland real estate
investment trust ("SNH Mortgagee"); SNH ALT Leased Properties Trust, a Maryland
real estate investment trust ("SNH Lessor," and together with SNH Mortgagee,
collectively, the "SNH Parties"); FIT-ALT SNH Loan LLC, a Delaware limited
liability company ("FIT"); Pomacy Corporation, a Delaware corporation
("Pomacy"); AHC Trailside, Inc., a Delaware corporation ("Trailside"); and
Alterra Healthcare Corporation, a Delaware corporation ("Alterra," and together
with Pomacy and Trailside, collectively, the "Alterra Parties").
WHEREAS, SNH Mortgagee made a Loan to Pomacy on February 28, 2003 in the
original principal amount of $6,900,000 (the "Loan"), which Loan is evidenced by
the Loan Agreement and the Promissory Note and secured by the Security
Instruments, as such agreements are described and defined in Exhibit A attached
hereto (collectively, the "Loan Documents");
WHEREAS, SNH Lessor leases certain properties to Trailside pursuant to a
Lease Agreement dated February 28, 2003 (the "Lease");
WHEREAS, pursuant to a Guaranty Agreement in favor of SNH Lessor dated
February 28, 2003 (the "Pomacy Guaranty"), Pomacy has guaranteed the obligations
of Trailside under the Lease, which Pomacy Guaranty is secured by certain of the
Pomacy Security Instruments (as defined in Exhibit A);
WHEREAS, pursuant to a Guaranty Agreement in favor of SNH Mortgagee dated
February 28, 2003 (the "Trailside Guaranty"), Trailside has guaranteed the
obligations of Pomacy under the Loan Documents, which Trailside Guaranty is
secured by the Trailside Security Instruments (as defined in Exhibit A);
WHEREAS, in connection with the Order entered November 26, 2003
confirming the Plan of Reorganization (the "Plan of Reorganization") in
Alterra's Chapter 11 Case No. 03-10254 in the Untied States Bankruptcy Court for
the District of Delaware, SNH Mortgagee has agreed to sell, and FIT has agreed
to purchase, the Loan on the terms and conditions set forth herein;
WHEREAS, to facilitate the sale of the Loan to FIT, the parties to the
Loan Documents wish to eliminate the cross-collateralization and
cross-defaulting between the Loan Documents and the Lease by terminating and/or
releasing the Pomacy Guaranty, the Trailside Guaranty, the Trailside Security
Instruments and the Alterra Second Security Agreement (as defined in Exhibit A)
and by modifying the remaining Loan Documents (to the extent applicable) to
delete the cross-collateralizing and cross-defaulting provisions.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
1. Sale of the Loan. Subject to the terms and conditions of this
Agreement, effective on the Effective Date of the Plan of
Reorganization (the "Effective Date") and receipt of the Purchase
Price (as hereinafter defined), (a) SNH Mortgagee hereby sells,
transfers and assigns to FIT all right, title and interest of SNH
Mortgagee in, to and under the Loan, the Promissory Note and the
Loan Agreement, as amended hereby, and (b) SNH Mortgagee and SNH
Lessor hereby sell, assign and transfer to FIT all their respective
right, title and interest in, to and under (i) each of the Pomacy
Security Instruments, as amended hereby and by the assignment and
modification agreements executed and delivered in connection
herewith, and (ii) all stock certificates, related stock powers,
opinions, title policies and any other agreements and documents
delivered by Pomacy and/or Alterra in connection with the Loan (the
rights, title and interests assigned pursuant to clauses (a) and (b)
are collectively referred to herein as the "Assigned Rights"), in
each case to the extent assignable.
2. Purchase Price. In consideration for the sale, transfer and
assignment by SNH Mortgagee and SNH Lessor to FIT of the Assigned
Rights, FIT will pay to SNH Mortgagee an amount equal to the
outstanding principal balance of the Loan plus accrued and unpaid
interest thereon as of the Effective Date. FIT shall pay the
Purchase Price on the Effective Date by wire transfer of immediately
available federal funds to the account designated by SNH Mortgagee.
3. Modification of Loan Documents. Effective upon sale of the Loan
pursuant to Section 1 of this Agreement, the following Loan
Documents are modified as follows:
a. Loan Agreement.
i. Section 1.32 of the Loan Agreement is amended by
deleting the word "Tenant" from the definition of
"Guarantor."
ii. Section 6.1.1 of the Loan Agreement is amended by
deleting the words "or any payment of Minimum Rent or
Additional Rent (as such terms are defined in the Lease)
under the Lease" from clause (a) thereof and by deleting
the words "or the Lease Documents" from clause (b)
thereof.
iii. Section 6.1.6 of the Loan Agreement is amended by
deleting the words "or any Lease Document" from both the
second line and the fourth line thereof.
iv. Section 8.1(c) of the Loan Agreement is amended by
deleting the notice address for Senior Housing
Properties Trust and its counsel and by substituting
therefor as the address for Lender:
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c/o Fortress Investment Group LLC
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Sidley Xxxxxx Xxxxx & Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
b. Stock Pledge Agreement (Pomacy Corporation).
i. Section 3 of the Stock Pledge Agreement (Pomacy
Corporation) is amended by deleting clauses (ii), (iii)
and (v) thereof and renumbering the remaining clauses in
numerical order.
ii. Section 8 of the Stock Pledge Agreement (Pomacy
Corporation) is amended by deleting the words "the
Purchase Agreement or the Lease" from clause (a) thereof
and by deleting the words "or the Landlord Guaranty"
from clause (b) thereof.
iii. Section 15(c) of the Stock Pledge Agreement (Pomacy
Corporation) is amended by deleting the notice address
for Senior Housing Properties Trust and its counsel and
by substituting therefor:
Fortress Investment Group LLC
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xx.
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Sidley Xxxxxx Xxxxx & Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
c. Assignment of Contracts, Licenses and Permits.
i. Section 1 of each Assignment of Contracts, Licenses and
Permits is amended by deleting the words "or in the
Pomacy Guaranty" from the first paragraph thereof.
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ii. Section 2 of each Assignment of Contracts, Licenses and
Permits is amended by deleting the words "or the Pomacy
Guaranty" from both paragraphs thereof.
iii. Section 5 of each Assignment of Contracts, Licenses and
Permits is amended by deleting the language of clause
(d) thereof and substituting the words "Intentionally
omitted."
4. Closing Documents. On the Effective Date, the following documents
shall be executed and delivered to FIT by the party indicated:
a. SNH Lessor shall deliver a termination of the Pomacy Guaranty;
b. SNH Mortgagee shall deliver a termination of the Trailside
Guaranty, the Trailside Security Instruments and the Alterra
Second Security Agreement;
c. SNH Mortgagee shall deliver the original Promissory Note,
endorsed by SNH Mortgagee in the following form: pay to the
order of FIT-ALT SNH Loan, LLC, its successors and assigns,
without recourse or warranty except as set forth in the
Tri-Party Agreement dated as of December ___, 2003 among SNH
ALT Mortgaged Properties Trust, SNH ALT Leased Properties
Trust, FIT-ALT SNH Loan LLC, Pomacy Corporation, AHC
Trailside, Inc. and Alterra Healthcare Corporation.
d. SNH Mortgagee and SNH Lessor shall deliver the originals of
all Loan Documents in their respective possession;
e. SNH Mortgagee, SNH Lessor and Pomacy shall deliver an
Assignment and Amendment in the form of Exhibit B attached
hereto with respect to each Mortgage listed in Exhibit A, duly
executed and in proper form for recording;
f. SNH Mortgagee, SNH Lessor and Pomacy shall deliver an
Assignment and Amendment in the form of Exhibit C attached
hereto with respect to each Assignment Leases and Rents listed
in Exhibit A, duly executed and in proper form for recording;
g. SNH Mortgagee and SNH Lessor shall deliver assignments to FIT
of the Uniform Commercial Code Financing Statements listed in
Exhibit A, and SNH Mortgagee shall deliver terminations of all
Uniform Commercial Code Financing Statements filed by SNH
Mortgagee, as secured party against Trailside and/or Alterra,
as debtor;
h. SNH Mortgagee and SNH Lessor shall deliver the original Title
Policy issued with respect to each Mortgage (to the extent
that such Title Policies have been delivered to SNH Mortgagee
and
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SNH Lessor) or the original Commitment for title insurance
marked and initialed by Chicago Title Insurance Company (to
the extent that such Title Policies have not been delivered to
SNH Mortgagee and SNH Lessor);
i. SNH Mortgagee shall deliver the original stock certificate(s)
of Pomacy Corporation and related Stock Powers and copies of
all other certificates, opinions and other agreements and
documents delivered in connection with closing of the Loan;
and
5. Conditions to Closing.
a. Conditions to FIT's Obligation to Close. FIT's obligation to
consummate the transactions contemplated hereunder is subject
to satisfaction by SNH and the Alterra Parties, or waiver by
FIT, of the following conditions:
i. SNH shall have complied in all material respects with
all terms and conditions of this Agreement required to
be performed by SNH on or before the Effective Date.
ii. On or before the Effective Date, FIT shall have received
the documents and instruments required to be executed,
endorsed or delivered by the SNH Parties and the Alterra
Parties pursuant to Section 4 above, in accordance with
the requirements of Section 4 above.
iii. The representations and warranties of the SNH Parties
and the Alterra Parties shall be true and correct in all
material respects as of the Effective Date.
iv. SNH Lessor and Trailside shall have entered into the
First Amendment of Lease in the form of Exhibit E
hereto.
b. Conditions to SNH's Obligation to Close. SNH's obligation to
consummate the transactions contemplated hereunder and for the
Effective Date to occur is subject to satisfaction by FIT and
the Alterra Parties, or waiver by SNH, of the following
conditions:
i. FIT and the Alterra Parties shall have complied in all
material respects with all terms and conditions of this
Agreement required to be performed by FIT and the
Alterra Parties on or before the Effective Date,
including, without limitation, payment of the amounts
required to be paid on or prior to the Effective Date
under Sections 2 and 5 hereof.
ii. On or before the Effective Date, SNH shall have received
the documents to be executed and delivered by FIT and
the Alterra Parties pursuant to Sections 4 and 5 hereof
and all other documents that need to be executed in
connection with this
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Agreement, including, without limitation, all amendments
to those documents that secure Trailside's payment and
performance obligations under the Lease.
iii. The representations and warranties of FIT shall be true
and correct in all material respects as of the Effective
Date.
iv. On or before the Effective Date, Alterra shall have
delivered to SNH Lessor the amount of $1,000,000 (the
"Payment Amount") in immediately available federal
funds, which Payment Amount is solely in
consideration of the parties' agreements contained
herein and is not a credit against amounts now or
hereafter owed by Trailside to SNH Lessor or any
Affiliated Person (as defined in the Lease) of SNH
Lessor under the Lease or any other Lease Document (as
defined in the Lease), and Alterra expressly
acknowledges and agrees that it does not elect, and
hereby expressly waives any right it may have to elect,
to convey the so-called "Fon-du-lac residence" to SNH
Lessor in lieu of payment of the Payment Amount.
v. On or before the Effective Date, Alterra shall have
delivered to SNH the amount of $2,500,000 in immediately
available federal funds, which amount shall be in
satisfaction of the Allowed Administrative Claim that
SNH has against Alterra.
6. Recording Fees and Transfer Fees; Costs and Expenses. Each party
shall be responsible for the payment of its legal and other costs
and expenses for preparing, negotiating, executing and implementing
this Agreement and any related documents and consummating the
transactions contemplated hereunder. Any filing, recording or
transfer fees or taxes shall be paid by FIT or the Alterra Parties.
7. FIT's Representations. FIT hereby represents, warrants, and
acknowledges as of the Effective Date:
a. FIT has the legal capacity and authority to enter into and
perform its obligations under this Agreement.
b. The execution and delivery by FIT of this Agreement, and the
other agreements and instruments to be executed by FIT as
contemplated hereby and the performance and compliance by FIT
with the terms hereof and thereof, are within FIT's power and
authority; this Agreement, assuming due authorization,
execution and delivery by the other parties hereto,
constitutes, and the other agreements and instruments to be
executed by FIT as contemplated hereby will constitute legal,
valid and binding obligations of FIT, enforceable against FIT
in accordance with their respective terms.
c. The execution and delivery of this Agreement and the
performance of FIT's obligations hereunder by FIT will not
conflict with any provision of any law, regulation, or order
to which FIT is subject,
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or conflict with or result in a breach of or constitute a
default under any of the material terms, conditions, or
provisions of any material agreement or instrument to which
FIT is a party or by which FIT is bound.
d. No license, consent, approval, authorization or order of, or
registration or filing with, or notice to any court or
governmental authority, is required for the execution,
delivery or performance by FIT of this Agreement and the other
agreements and instruments to be executed by FIT as
contemplated hereby.
e. FIT is (i) an entity which is in the business of buying,
entering into, or originating loans of the type being
purchased pursuant to this Agreement, or which otherwise deals
in such instruments in the ordinary course of its business; or
(ii) an entity which is defined as an "accredited investor"
under the Securities Act of 1933, 15 U.S.C Section 77a et
seq., and the rules and regulations promulgated thereunder
(the "33 Act").
f. FIT understands that none of the Loan Documents have been
registered under the 33 Act or the securities laws of any
state. Without characterizing any of the Loan Documents as a
"security" with the meaning of applicable securities laws, FIT
is not purchasing the Assigned Rights with a view towards a
sale or redistribution in violation of the 33 Act; provided
that FIT may resell the Assigned Rights or any portion thereof
if such resale does not violate the 33 Act.
The representations and warranties set forth in this Section 7 shall
survive the execution, delivery, performance and closing of this Agreement for a
period of six (6) months from and after the Effective Date. Except as expressly
set forth in this Section 7, FIT makes no representations or warranties, express
or implied.
8. SNH Mortgagee Representations. SNH Mortgagee hereby represents,
warrants, and acknowledges as of the Effective Date:
a. SNH Mortgagee has the legal capacity and authority to enter
into and perform its obligations under this Agreement.
b. The execution and delivery by SNH Mortgagee of this Agreement,
and the other agreements and instruments to be executed by SNH
Mortgagee as contemplated hereby and the performance and
compliance by SNH Mortgagee with the terms hereof and thereof,
are within the power and authority of SNH Mortgagee; this
Agreement, assuming due authorization, execution and delivery
by the other parties hereto, constitutes, and the other
agreements and instruments to be executed by SNH Mortgagee as
contemplated hereby constitute legal, valid and binding
obligations of SNH Mortgagee, enforceable against SNH
Mortgagee in accordance with their respective terms.
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c. The execution and delivery of this Agreement and the
performance by SNH Mortgagee of its obligations hereunder will
not conflict with any provision of any law, regulation, or
order to which SNH Mortgagee is subject, or conflict with or
result in a breach of or constitute a default under any of the
material terms, conditions, or provisions of any material
agreement or instrument to which SNH Mortgagee is a party or
by which SNH Mortgagee is bound.
d. No license, consent, approval, authorization or order of, or
registration or filing with, or notice to any court or
governmental authority, is required for the execution,
delivery or performance by SNH Mortgagee of this Agreement and
the other agreements and instruments to be executed by SNH
Mortgagee as contemplated hereby.
e. The outstanding principal amount of, and accrued and unpaid
interest on, the Loan as of December 4, 2003 is Six Million
Fifty Six Thousand Five Hundred Ninety Two Dollars and Seventy
Six Cents ($6,056,592.76). Interest accrues at $1,344.71 per
diem.
f. The Promissory Note delivered pursuant to Section 4 is an
original instrument, and the Loan Documents have not been
modified or amended except as provided in this Agreement or as
contemplated hereby.
g. The Assigned Rights have not been assigned or pledged by SNH
Mortgagee.
h. All taxes due or required to be paid by SNH Mortgagee on or
prior to the Effective Date with respect to the Promissory
Note have been paid.
The representations and warranties set forth in this Section 8 shall
survive the execution, delivery, performance and closing of this Agreement for a
period of six (6) months from and after the Effective Date. Except as expressly
set forth in this Section 8, SNH Mortgagee makes no representations or
warranties, express or implied.
9. SNH Lessor Representations. SNH Lessor hereby represents, warrants,
and acknowledges as of the Effective Date:
a. SNH Lessor has the legal capacity and authority to enter into
and perform its obligations under this Agreement.
b. The execution and delivery by SNH Lessor of this Agreement,
and the other agreements and instruments to be executed by SNH
Lessor as contemplated hereby and the performance and
compliance by SNH Lessor with the terms hereof and thereof,
are within the power and authority of SNH Lessor; this
Agreement, assuming due authorization, execution and delivery
by the other
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parties hereto, constitutes, and the other agreements and
instruments to be executed by SNH Lessor as contemplated
hereby constitute legal, valid and binding obligations of SNH
Lessor, enforceable against SNH Lessor or in accordance with
their respective terms.
c. The execution and delivery of this Agreement and the
performance by SNH Lessor of its obligations hereunder will
not conflict with any provision of any law, regulation, or
order to which SNH Lessor is subject, or conflict with or
result in a breach of or constitute a default under any of the
material terms, conditions, or provisions of any material
agreement or instrument to which SNH Lessor is a party or by
which SNH Lessor is bound.
d. No license, consent, approval, authorization or order of, or
registration or filing with, or notice to any court or
governmental authority, is required for the execution,
delivery or performance by SNH Lessor of this Agreement and
the other agreements and instruments to be executed by SNH
Lessor as contemplated hereby.
e. The Assigned Rights have not been assigned or pledged by SNH
Lessor.
The representations and warranties set forth in this Section 9 shall
survive the execution, delivery, performance and closing of this Agreement for a
period of six (6) months from and after the Effective Date. Except as expressly
set forth in this Section 9, SNH Lessor makes no representations or warranties,
express or implied.
10. Alterra Parties' Representations. The Alterra Parties hereby
represent, warrant, and acknowledge as of the Effective Date:
a. The Alterra Parties have the legal capacity and authority to
enter into and perform their respective obligations under this
Agreement.
b. The execution and delivery by the Alterra Parties of this
Agreement, and the other agreements and instruments to be
executed by the Alterra Parties as contemplated hereby and the
performance and compliance by the Alterra Parties with the
terms hereof and thereof, are within the power and authority
of the Alterra Parties; this Agreement, assuming due
authorization, execution and delivery by the other parties
hereto, constitutes, and the other agreements and instruments
to be executed by the Alterra Parties (or any of them) as
contemplated hereby constitute legal, valid and binding
obligations of such Alterra Party, enforceable against such
Alterra Party in accordance with their respective terms.
c. The execution and delivery of this Agreement and the
performance by the Alterra Parties of their obligations
hereunder will not conflict with any provision of any law,
regulation, or order to
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which any Alterra Party is subject, or conflict with or result
in a breach of or constitute a default under any of the
material terms, conditions, or provisions of any material
agreement or instrument to which any Alterra Party is a party
or by which any Alterra Party is bound.
d. No license, consent, approval, authorization or order of, or
registration or filing with, or notice to any court or
governmental authority, is required for the execution,
delivery or performance by any Alterra Party of this Agreement
and the other agreements and instruments to be executed by any
Alterra Party as contemplated hereby.
e. The outstanding principal amount of, and accrued interest on,
the Loan as of December 4, 2003 is Six Million Fifty Six
Thousand Five Hundred Ninety Two Dollars and Seventy Six Cents
($6,056,592.76). Interest accrues at $1,344.71 per diem.
f. The Loan Documents have not been modified or amended except as
provided in this Agreement or as contemplated hereby.
The representations and warranties set forth in this Section 10 shall
survive the execution, delivery, performance and closing of this Agreement for a
period of six (6) months from and after the Effective Date. Except as expressly
set forth in this Section 10, the Alterra Parties make no representations or
warranties, express or implied.
11. Governing Law. This Agreement shall be governed by the laws of the
State of Delaware without regard to conflicts of law principles.
12. Miscellaneous.
a. Each of the parties hereto shall execute and deliver all such
documents and perform all such acts as reasonably requested by
any other party hereto from time to time, after the date
hereof, to carry out the matters contemplated by this
Agreement.
b. The provisions of this Agreement run to the benefit of the
parties hereto and their respective successors and assigns.
c. This Agreement constitutes the entire agreement of the parties
hereto with regard to the Loan, and this Agreement may be
amended only by a writing executed by all parties hereto.
Excuse or waiver of the performance by any party of any
obligation under this Agreement shall only be effective if
evidenced by a written statement signed by the party so
waiving. No delay in exercising any right or remedy shall
constitute a waiver thereof, and no waiver by any party of the
breach of any covenant of this Agreement shall be construed as
a waiver of any preceding or
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succeeding breach of the same or any other covenant or
condition of this Agreement.
d. This Agreement shall not be construed as if it had been
prepared by one of the parties, but rather as if all of the
parties had prepared the same.
e. Except as otherwise expressly stated, nothing in this
Agreement shall affect, modify, release, limit or otherwise
impair any rights or obligations of any of the parties hereto
under the Lease, the Lease Documents (as defined in the
Lease), the Loan Agreement, the Loan Documents or any document
executed in connection therewith.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which counterparts shall be deemed to be an
original, and all of which counterparts shall constitute but one and
the same instrument. Signature pages may be detached and reattached
to physically form one instrument. Delivery of an executed
counterpart of a signature page to this Agreement via facsimile
transmission shall be effective as delivery of a manually executed
counterpart of this Agreement.
14. Notices. All notices, requests or other communications desired or
required to be given under this Agreement shall be in writing and
shall be sent by (a) certified or registered mail, return receipt
requested, postage prepaid, (b) national prepaid overnight delivery
service, (c) telecopy or other facsimile transmission (following
with hard copies to be sent by national prepaid overnight delivery
service) or (d) personal delivery with receipt acknowledged in
writing, as follows:
if to SNH:
c/o Senior Housing Properties Trust
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
if to FIT:
c/o Fortress Investment Group LLC
11
1251 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Sidley Xxxxxx Xxxxx & Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
if to Pomacy, Trailside or Alterra:
c/o Alterra Healthcare Corporation
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxx LLP
2700 International Tower
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
All notices and demands shall be deemed to have been given either at
the time of the delivery thereof to the party entitled to receive
such notices and demands at the address of such party for notices
hereunder, or on the third day after the mailing thereof to such
address, as the case may be.
[Signatures on following page.]
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IN WITNESS WHEREOF, the undersigned parties have executed this Agreement
to be effective as of the Effective Date.
SNH MORTGAGEE:
SNH ALT MORTGAGED PROPERTIES TRUST,
a Maryland real estate investment trust
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Treasurer
SNH LESSOR:
SNH ALT LEASED PROPERTIES TRUST,
a Maryland real estate investment trust
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Treasurer
[Signatures continued]
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FIT:
FIT-ALT SNH LOAN LLC, a Delaware limited
liability company
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
-----------------------------
Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: Vice President
[Signatures continued]
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POMACY:
POMACY CORPORATION, a Delaware
corporation
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
TRAILSIDE:
AHC TRAILSIDE, INC., a Delaware corporation
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
ALTERRA:
ALTERRA HEALTHCARE CORPORATION, a
Delaware corporation
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
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Exhibit A
"Loan Documents" shall mean the following, each dated February 28, 2003:
(a) Loan Agreement by and between Pomacy Corporation and SNH ALT
Mortgaged Properties Trust
(b) Promissory Note executed by Pomacy Corporation in favor of SNH ALT
Mortgaged Properties Trust in the original principal amount of
$6,900,000.00
(c) Security Instruments (as defined below)
"Security Instruments" shall mean the following, each dated February 28, 2003:
(a) Pomacy Security Instruments (as defined below)
(b) Trailside Security Instruments (as defined below)
(c) Alterra Second Security Agreement (as defined below)
"Pomacy Security Instruments" shall mean the following, each dated February 28,
2003:
(a) Guaranty Agreement made by Alterra Healthcare Corporation for the
benefit of SNH ALT Mortgaged Properties Trust
(b) Environmental Indemnity by Alterra Healthcare Corporation and Pomacy
Corporation for the benefit of SNH ALT Mortgaged Properties Trust
and SNH ALT Leased Properties Trust
(c) Stock Pledge Agreement (Pomacy Corporation) by Alterra Healthcare
Corporation for the benefit of SNH ALT Mortgaged Properties Trust
and SNH ALT Leased Properties Trust
(d) The following mortgages or deeds of trusts, each dated February 28,
2003 (the "Mortgages"):
(i) Mortgage, Assignment of Leases and Rents, Security Agreement
and Financing Statement from Pomacy Corporation to SNH ALT
Mortgaged Properties Trust and SNH ALT Leased Properties Trust
(Oviedo, Florida)
(ii) Mortgage, Assignment of Leases and Rents, Security Agreement
and Financing Statement from Pomacy Corporation to SNH ALT
Mortgaged Properties Trust and SNH ALT Leased Properties Trust
(Brandon, Florida)
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(iii) Mortgage, Assignment of Leases and Rents, Security Agreement
and Financing Statement from Pomacy Corporation to SNH ALT
Mortgaged Properties Trust and SNH ALT Leased Properties Trust
(Battle Creek, Michigan)
(e) the following Assignment of Leases and Rents, each dated February
28, 2003 (the "Assignments of Leases and Rents"):
(i) Assignment of Leases and Rents from Pomacy Corporation to SNH
ALT Mortgaged Properties Trust and SNH ALT Leased Properties
Trust (Oviedo, Florida)
(ii) Assignment of Leases and Rents from Pomacy Corporation to SNH
ALT Mortgaged Properties Trust and SNH ALT Leased Properties
Trust (Brandon, Florida)
(iii) Assignment of Leases and Rents from Pomacy Corporation to SNH
ALT Mortgaged Properties Trust and SNH ALT Leased Properties
Trust (Battle Creek, Michigan)
(f) the following Subordination of Management Agreements, each dated
February 28, 2003:
(i) Subordination of Management Agreement by Alterra Healthcare
Corporation in favor of SNH ALT Mortgaged Properties Trust
(Oviedo, Florida)
(ii) Subordination of Management Agreement by Alterra Healthcare
Corporation in favor of SNH ALT Mortgaged Properties Trust
(Brandon, Florida)
(iii) Subordination of Management Agreement by Alterra Healthcare
Corporation in favor of SNH ALT Mortgaged Properties Trust
(Battle Creek, Michigan)
(g) the following Assignment of Contracts, Licenses and Permits, each
dated February 28, 2003 (the "Assignment of Licenses, Contracts and
Permits"):
(i) Assignment of Contracts, Licenses and Permits by Pomacy
Corporation to SNH ALT Mortgaged Properties Trust and SNH ALT
Leased Properties Trust (Oviedo, Florida)
(ii) Assignment of Contracts, Licenses and Permits by Pomacy
Corporation to SNH ALT Mortgaged Properties Trust and SNH ALT
Leased Properties Trust (Brandon, Florida)
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(iii) Assignment of Contracts, Licenses and Permits by Pomacy
Corporation to SNH ALT Mortgaged Properties Trust and SNH ALT
Leased Properties Trust (Battle Creek, Michigan)
(h) the following Uniform Commercial Code Financing Statements, each
delivered as of February 28, 2003 (the "UCC's"):
(i) UCC Financing Statement filed for record March 5, 2003,
recorded in Book 04732, Page 1280, Clerk's Xx.
0000000000, Xxxxxxxx Xxxxxx, Xxxxxxx (Oviedo, Florida)
(ii) UCC Financing Statement filed for record March 5, 2003,
recorded in Official Book 12407, Page 1282, Hillsborough
County, Florida (Brandon, Florida)
(iii) UCC Financing Statement filed for record March 8, 2003,
recorded in Liber 2596, Page 000, Xxxxxxx Xxxxxx,
Xxxxxxxx (Xxxxxx Xxxxx, Xxxxxxxx)
(iv) UCC Financing Statement filed for record March 4, 2003,
Initial Filing Number 3051809 5, Delaware Department of
State UCC Filing Section
"Trailside Security Instruments" shall mean the following, each dated February
28, 2003:
(a) Second Assignment of Sublease and Rents by and between AHC
Trailside, Inc. and SNH ALT Mortgaged Properties Trust
(b) Second Security Agreement by and between AHC Trailside, Inc. and SNH
ALT Mortgaged Properties Trust
"Alterra Second Security Agreement" shall mean the following, dated February 28,
2003:
(a) Second Security Agreement by and between Alterra Healthcare
Corporation and SNH ALT Mortgaged Properties
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