Exhibit
10.55.9
Recorded by and after
recording return to:
Property: Meadow
Lodge
Loan No.:
4000029618
ASSUMPTION AGREEMENT
This
ASSUMPTION AGREEMENT (this
“Agreement”) is made to be effective as of
September 29, 2003, by and between EMERITUS
PROPERTIES IX, LLC , a Washington limited liability
company (“Original Borrower ” or “Operating
Lessee”), whose address is c/o Emeritus Corporation,
3131 Elliott Avenue, Suite 500, Seattle, WA 98121, Attn.:
William Shorten, HCRI DRUM HILL PROPERTIES, LLC ,
a Delaware limited liability company (“New Borrower”),
whose address is c/o Health Care REIT, Inc., One SeaGate,
Suite 1500, Toledo, Ohio 43604, and JPMORGAN CHASE
BANK (FORMERLY KNOWN AS THE CHASE MANHATTAN BANK), TRUSTEE FOR THE
REGISTERED CERTIFICATE HOLDERS OF CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP. COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2000-PS4 (“Lender”), as
established under the Pooling and Servicing Agreement (as
hereinafter defined) dated as of June 16, 2000, whose address
is c/o GMAC Commercial Mortgage Corporation, 245 Peachtree Center
Avenue, N.E., Suite 1800, Atlanta, GA 30303-1231 Attn.:
Portfolio Manager - CSFBMSC, Series 2000-PS4.
R E C I T A L S:
A.
AMRESCO Capital, L.P., a Delaware limited partnership
(“Original Lender”), made a loan (the
“Loan”) in the original principal amount of TEN MILLION
THREE HUNDRED NINETY-FIVE THOUSAND AND NO/100 DOLLARS
($10,395,000.00) to Original Borrower.
B. To
evidence the Loan, Original Borrower executed and delivered to
Original Lender that certain Fixed Rate Note dated
September 29, 1999 (the “Note ” ), payable to the order of
Original Lender in the original principal sum of TEN MILLION THREE
HUNDRED NINETY-FIVE THOUSAND AND NO/100 DOLLARS ($10,395,000.00),
bearing interest and being payable as therein provided.
C.
Payment of the Note is secured by, among other instruments,
that certain Mortgage and Security Agreement of even date therewith
(the “Mortgage”), executed by Original Borrower for the
benefit of Original Lender, encumbering, among other property, that
certain parcel of real property located in Middlesex County,
Massachusetts, which is more particularly described on Exhibit A
attached hereto and incorporated herein for all purposes (the
“Property”).
D. The
Mortgage is recorded in Deed Book 10436, Page 268 of the Registry
of Deeds of Middlesex County, Massachusetts (the
“Records”), said Mortgage and the record thereof being
incorporated herein for all purposes.
E.
Payment of the Note is further secured by certain other
instruments, including specifically, without limitation, that
certain Assignment of Leases and Rents of even date with the Note
(the “Assignment of Leases”), recorded in Deed Book
10437, Page 1 of the Records.
F.
Original Borrower also executed an Environmental Liabilities
Agreement (the “Environmental Indemnity”) with respect
to the Loan and Emeritus Corporation, a Washington corporation
(“Emeritus”) executed a Guaranty (herein so called)
guarantying Original Borrower’s obligations under the
Environmental Indemnity as well as those matters commonly known as
“non-recourse carveouts” set forth in the Note.
G.
Original Borrower, Emeritus and Original Lender also entered
into a Cash Management Agreement (herein so called) with respect to
the Loan.
H.
Original Borrower also executed a Payment and Performance
Guaranty (herein so called) of even date with the Note, whereby
Original Borrower guaranteed the obligations of certain of its
affiliates.
I.
Original Lender sold and transferred certain mortgage loans
including the Loan to Credit Suisse First Boston Mortgage Capital
LLC (“CSFBMC”) who in turn sold them to the trust fund
formed pursuant to the Pooling and Servicing Agreement dated
June 16, 2000, by and between Credit Suisse First Boston
Mortgage Securities Corp., as depositor, Lender, as lender,
CapMark Services, L.P.
(predecessor-in-interest to GMAC Commercial Mortgage Corporation)
as master servicer and Lend Lease Asset Management, L.P.
(predecessor-in-interest to GMAC Commercial Mortgage Corporation)
and National Consumer Cooperative Bank, both as special servicers
(the “Pooling and Servicing Agreement”).
J.
Original Borrower desires to sell, convey and transfer the
Property to New Borrower subject to New Borrower’s assumption
of the Note, the Mortgage, the Environmental Indemnity, the
Assignment of Leases, the Payment and Performance Guaranty, the
Cash Management Agreement and all other instruments evidencing or
securing the indebtedness (collectively, the “Loan
Documents”) and Original Borrower and New Borrower have
requested Lender’s consent to such transfer and
assumption.
K.
Simultaneously with the transfer and assumption, Original
Borrower and New Borrower will enter into a Lease Agreement (the
“Operating Lease”) whereby Original Borrower (herein
“Operating Lessee” in such context) will lease the
Property back from New Borrower and, in addition to seeking
Lender’s consent to the transfer and assumption, Original
Borrower and New Borrower have requested Lender’s consent to
New Borrower’s lease of the Property to Original Borrower as
Operating Lessee pursuant to the Operating Lease.
L.
Lender desires to grant its consent to the transfer and
assumption and the lease transaction subject to the terms and
conditions as more specifically provided hereinbelow. Capitalized
terms used but not defined herein shall have the meaning ascribed
to them in the Mortgage.
NOW THEREFORE, in
consideration of the mutual covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Original
Borrower, New Borrower and Lender hereby agree as follows:
1.
Transfer. Original Borrower agrees to sell, grant
and convey to New Borrower all right, title and interest in and to
the Property and shall lease the Property back from New Borrower,
subject to the liens and encumbrances of the Loan Documents and to
the terms and provisions of this Agreement (collectively, the
“Transfer”). Notwithstanding any implication to the
contrary herein, the parties recognize and agree that Original
Borrower is not transferring to New Borrower any of the following:
(a) any leases between Original Borrower and any resident of the
Assisted Living Facility or any lease for the operation of ongoing
retail businesses such as news stands, barbershops, beauty salons,
physician’s offices, pharmacies and specialty shops
(b)licenses, permits, certificates, approvals and other intangible
personal property of every kind and nature whatsoever owned by
Original Borrower as of the date hereof and related to the
operation of the Assisted Living Facility (including those within
the defined terms “Licenses” and
“Intangibles” under the Mortgage), (c) cash (on hand or
in banks) and accounts, notes, interest and other receivables
arising from the operation of the Assisted Living Facility prior to
the date hereof or hereafter accruing, (d) all inventories of every
kind and nature whatsoever (specifically including, but not limited
to, all pharmacy supplies, medical supplies, office supplies and
foodstuffs) owned by Original Borrower as of the date
hereof and relating to the Assisted Living
Facility, (e) all rights to the telephone numbers of the Assisted
Living Facility and its sequential numbers, and (f) medical
records, administrative records, manuals, and other books and
records relating directly to the operation of the Assisted Living
Facility. The parties further recognize and agree that any such
items shall continue to be owned by Operating Lessee who will lease
the Assisted Living Facility back from New Borrower, that such
items of collateral are and will continue to be pledged as
collateral to secure Operating Lessee’s obligations under the
Operating Lease for the benefit of New Borrower and, in turn, also
for the benefit of Lender under the Assignment of Leases.
2.
Assumption. New Borrower hereby assumes liability
for and agrees to pay and perform any and all of the indebtedness
which Original Borrower may now be, or which New Borrower hereafter
becomes, obligated to pay under or in connection with the Note, the
Mortgage, the Assignment of Leases, the Payment and Performance
Guaranty, the Cash Management Agreement and any of the other Loan
Documents, and any and all other obligations which Original
Borrower may now or hereafter be obligated to perform under or in
connection with the Note, the Mortgage, the Assignment of Leases,
the Payment and Performance Guaranty, the Cash Management Agreement
and any of the other Loan Documents, without reservation or
exception, to the same extent as though New Borrower were the
original obligor, subject, however, to any limitations set forth in
the Loan Documents with respect to recourse against the Original
Borrower in the event of a default. New Borrower acknowledges that
the Property shall remain subject to the Mortgage and that nothing
in this Agreement shall affect the priority of the lien of the
Mortgage over other liens and encumbrances against the Property.
The outstanding obligations of Original Borrower under the Loan
Documents set forth in Schedule 1 attached hereto are incorporated
herein.
3.
Acknowledgment of Personal Liability. Without
limitation, New Borrower acknowledges its full, personal liability
for those matters, commonly known as “non-recourse
carveouts,” set forth in the Note, for the obligations of
Original Borrower as “Guarantor” under the Payment and
Performance Guaranty and for any representations, warranties,
covenants and indemnities contained in any of the Loan Documents
relating to environmental matters (the non-recourse carveouts, the
obligations under the Payment and Performance Guaranty, and the
environmental representations, warranties, covenants and
indemnities being herein referred to as “New Borrower’s
Recourse Obligations”).
4.
Release of Original Borrower. Lender hereby
releases Original Borrower from liability under the Note, the
Mortgage and the other Loan Documents for matters occurring after
the effective date of this Agreement except (i) as otherwise
expressly set forth herein, (ii) for Original Borrower’s
continuing obligations under the Cash Management Agreement which it
hereby expressly recognizes and consents to, or (iii) for its
obligations and covenants under the Subordination and Standstill
Agreement, in all cases in its capacity as Operating Lessee.
Notwithstanding the foregoing, Original Borrower agrees that its
liability to Lender for acts or omissions arising out of its
duties
and obligations under the Note, the Mortgage
and the other Loan Documents shall not be impaired, prejudiced or
affected in any way whatsoever for matters arising or occurring
prior to the effective date of this Agreement, whether known or
unknown at this time. Original Borrower agrees that Lender may,
without notice to Original Borrower and without releasing Original
Borrower from liability, accept collections directly from New
Borrower and otherwise deal with New Borrower in all matters
relating to the Note, the Mortgage, the Assignment of Leases and
any of the other Loan Documents without notice to Original Borrower
to the same extent as though Original Borrower were not jointly and
severally liable with New Borrower, and that the obligations of
Original Borrower shall not be released, waived or affected
in any way notwithstanding
any agreements, arrangements, releases, compromises, acceptances of
late payments, novations or any other dealings whatsoever between
Lender and New Borrower or any other party concerning the Note, the
Mortgage, the Assignment of Leases, the Payment and Performance
Guaranty and any of the other Loan Documents or the property
secured thereby. Original Borrower agrees that Lender may, without
notice to Original Borrower and without releasing Original Borrower
from Original Borrower’s liability, elect any remedy and
compromise or release any debt or grant extensions of time for
payment all on terms satisfactory to Lender.
5.
Consent to Transfer. Lender hereby consents to the
Transfer and agrees that this Transfer shall not constitute a
default under the Mortgage or any of the other Loan Documents.
However, Lender does not waive any other default, whether now in
existence or occurring hereafter, whether known or unknown. This
waiver applies only to this particular Transfer and not to any
future transfer or sale. New Borrower and Original Borrower agree
that they will not sell or attempt to sell or transfer or otherwise
dispose of the property covered by the Loan Documents (other than
the sale of inventory in the ordinary course of business and the
sale or disposal of worn out equipment which is replaced with new
equipment of similar function) and without the written consent of
Lender, its successors or assigns, except for the Transfer referred
to herein. Without intending to limit to any degree the provisions
of the Mortgage or the other Loan Documents that will bind New
Borrower from and after the date hereof, Lender and New Borrower
specifically acknowledge that the provisions of Section 12 of the
Mortgage are enforceable by Lender and New Borrower provided that
the one-time sale referred to in Section 12(c) shall be deemed
exhausted by the Transfer.
6.
No Release of Loan
Documents. All parties to this Agreement specifically
confirm and agree that nothing in this Agreement shall be
understood or construed to amount to a satisfaction or release in
whole or in part of the Note, the Mortgage, the Assignment of
Leases, the Payment and Performance Guaranty, the Cash Management
Agreement nor any of the other Loan Documents, or of the property
covered by the Mortgage from the effect thereof. All terms and
conditions of the Loan Documents, including any written amendments
or modifications heretofore agreed to by Lender, shall continue in
full force and effect except as otherwise provided herein.
7.
Conforming Modifications. The Note, the Mortgage,
the Assignment of Leases, the Payment and Performance Guaranty, the
Cash Management Agreement and any and all other Loan Documents are
hereby modified to reflect the Transfer provided for herein and all
references therein to Original Borrower as Borrower, Maker,
Trustor, Mortgagor, Grantor, Assignor, Pledgor, or Guarantor shall
be deemed to refer to New Borrower. Reference is hereby made to (a)
that certain Assumption of Obligations of Guarantor among Lender,
Health Care REIT, Inc. (“HC REIT”) and Emeritus, and
(b) that certain Subordination and Standstill Agreement between
Lender, HC RE1T, Emeritus, New Borrower and Original Borrower, both
of even date herewith, which, together with this Agreement, shall
hereinafter be included in the term “Loan Documents.”
The following general provision shall be incorporated into each of
the Loan Documents: ““Operating Lease” shall mean
that certain Lease Agreement (the “Operating Lease”)
between Emeritus Properties IX, LLC, as operating lessee
(“Operating Lessee”) and HCRI Drum Hill Properties, LLC
as lessor thereunder and as Borrower, Trustor, Mortgagor, Grantor,
Assignor, Pledgor or Guarantor, as applicable, hereunder.” In
addition, Subsections (a), (b) and (c) of Section 1.2 of the
Payment and Performance Guaranty and Subsections (A), (B) and (C)
of Subsection (iv) on page 2 of the Mortgage shall be replaced by
the following:
“(a) or (A)
indebtedness and other obligations of HCRI
KIRKLAND PROPERTIES, LLC, a Delaware limited liability company (as
assumptor of the obligations of EMERITUS PROPERTIES X, LLC, a
Washington limited liability company), evidenced by that Fixed Rate
Note dated September 29, 1999 in the original principal sum of FIVE
MILLION SIX HUNDRED NINETY THOUSAND AND NO/100 DOLLARS
($5,690,000.00) and any and all documents securing or governing
such note (together with any amendments, modifications, increases,
financings, renewals and extensions thereof);
(b) or (B)
indebtedness and other obligations of HCRI
FAIRMONT PROPERTIES, LLC, a Delaware limited liability company (as
assumptor of the obligations of EMERITUS PROPERTIES XII, LLC, a
Washington limited liability company), evidenced by that Fixed Rate
Note dated September 29, 1999 in the original principal sum of FOUR
MILLION THREE HUNDRED THIRTY THOUSAND AND NO/100 DOLLARS
($4,330,000.00) and any and all documents securing or governing
such note (together with any amendments, modifications, increases,
financings, renewals and extensions thereof); and
(c) or (C)
indebtedness and other obligations of HCRI
RIDGELAND POINTE PROPERTIES, LLC, a Delaware limited liability
company (as assumptor of the obligations of RIDGELAND ASSISTED
LIVING, LLC, a Washington limited liability company), evidenced by
that Fixed Rate Note dated September 29, 1999 in the original
principal sum of FIVE MILLION FIVE HUNDRED THOUSAND AND NO/100
DOLLARS ($5,500,000.00) and any and all documents securing or
governing such note (together with any
amendments, modifications, increases,
financings, renewals and extensions thereof).”
8.
Modification of Mortgage. Upon consummation of the
Transfer, the Assisted Living Facility will be owned by New
Borrower, operated by Operating Lessee and will continue to be
managed by Emeritus as “Manager” under the Management
Agreement. As a consequence of these new relationships, the
Mortgage is modified as follows:
(a) The
definition of “Leases” is hereby modified to expressly
include the Operating Lease and the definition of
“Rents” is hereby modified to expressly include all
sums due to New Borrower under the Operating Lease.
(b)
Section 3 is hereby modified to permit New Borrower, as
“Mortgagor,” to fulfill its obligations under such
Section by causing Operating Lessee to obtain, maintain and
deliver, at Operating Lessee’s and/or Mortgagor’s sole
cost and expense, all of the recited insurance coverage. In the
event that Operating Lessee obtains and maintains such coverage,
Mortgagor must also be named an additional insured on any liability
and property policies and, subject to Lender’s prior right to
insurance proceeds, a loss-payee on any property policy. If
Mortgagor elects to cause Operating Lessee to fulfill
Mortgagor’s obligations under this section, Mortgagor shall
not be relieved of its continuing obligation to ensure that all
provisions of Section 3 are fulfilled in the time and the manner
set forth in the Mortgage. If Mortgagor does not elect to cause
Operating Lessee to obtain and maintain insurance coverage required
hereunder, Operating Lessee shall also be named additional insured
on any liability policy. Business interruption and/or rental loss
insurance limits shall be in an amount no less than the Mortgaged
Property level Rents and income rather than the Rents due under the
Operating Lease.
(c)
Section 8(c) is modified to recognize that the Mortgagor is,
of even date herewith, entering into the Operating Lease with
Operating Lessee who owns and holds the Licenses instead of
Manager.
(d)
Section 8(e) is hereby modified to insert the words
“the Operating Lease and” after “other
than” at the end of the first line and beginning of the
second.
(e)
Section 8(q) is hereby modified to reflect that the address
for New Borrower set forth in the first paragraph of this Agreement
is Mortgagor’s principal place of business and mailing
address.
(f)
Section 8(r)(ii) and (iv) are hereby modified to insert
“, Operating Lessee, Manager” after
“Mortgagor” in the first line of each subsection. The
second to the last sentence of Section 8(r)(ii) is modified to
reflect that Operating
Lessee shall hold any Licenses on a going
forward basis and the final sentence of Section 8(r)(ii) is hereby
deleted.
(g)
Section 8(r)(vi) is hereby modified to insert “,
Operating Lessee, Manager” after the word
“Mortgagor” in the third line.
(h)
Section 8(r)(ix) is hereby modified to (i) change the word
“Mortgagor” in the second line to “Operating
Lessee” and (ii) to recognize that the Management Agreement
has been modified on or about the date of this Agreement by a
certain First Amendment to and Reinstatement of Management
Agreement.
(i)
Section 9(h) is amended to delete the following phrase
“, and Mortgagor will file its own tax returns.”
(j)
Section 12(b)(i)(F) is hereby modified to change the word
“Borrower” to “Mortgagor.”
(k) All
instances of the term “Mortgagor” in the Mortgage are
hereby changed to “Mortgagor”, all instances of the
term “Deed of Trust” in the Mortgage are hereby changed
to “Mortgage.”
(l) The
following Section 18(g) is added to the Mortgage:
“ (g) In addition to
Mortgagor’s obligations hereunder to report with respect to
its own operations, Mortgagor shall cause the Operating Lessee to
comply with each and every provision of this Section 18 including,
but not
