ASSUMPTION OF
OBLIGATIONS OF GUARANTOR
This
ASSUMPTION OF OBLIGATIONS OF GUARANTOR (this
“Agreement”) is made and entered into as of September
29, 2003, by and among HEALTH CARE REIT, INC. , a
Delaware corporation (the “Assuming Guarantor”),
EMERITUS CORPORATION , a Washington corporation
(the “Original Guarantor”), 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 (the
“Lender”).
Recitals
A.
Emeritus Properties IX, LLC, a Washington limited liability
company (the “Original Borrower” or “Operating
Lessee”), is indebted to the Lender with respect to 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).
B. The
Loan is evidenced by that certain Fixed Rate Note dated September
29, 1999 (the “Note”), made by the Original Borrower,
in the original principal amount of $10,395,000.00, payable to the
order of AMRESCO Capital, L.P. (the “Original
Lender”).
C. The
Note is secured by, inter alia, that certain Mortgage and Security
Agreement dated of even date with the Note (the
“Mortgage”), executed by the Original Borrower to the
Original Lender, which Mortgage was recorded in Deed Book 10436,
Page 268 in the Registry of Deeds of Middlesex County,
Massachusetts (the “Records”), and by that certain
Assignment of Leases and Rents dated of even date with the Note
(the “Assignment of Rents”) recorded in Deed Book
10437, Page 1 in the Records. Capitalized terms used but not
defined herein shall
have the meanings ascribed to them in the Mortgage.
D. The
Note, the Mortgage, the Assignment of Rents, the Guaranty
(hereinafter defined) and that certain Environmental Liabilities
Agreement dated of even date with the Note and executed by Original
Borrower in favor of Lender (the “Environmental
Indemnity”), together with any other instruments,
certificates, assignments, opinions, and other documents and
instruments of writing evidencing, guaranteeing, securing or
pertaining to the Loan, are sometimes hereinafter collectively
referred to as the “Loan Documents.”
E. In
connection with the execution and delivery of the Loan Documents,
the Original Guarantor represented to the Original Lender that it
was an affiliate of the Original Borrower and that it would derive
substantial economic benefit from the Original Lender making the
Loan to the Original Borrower, and, as the Original Guarantor, it
undertook certain obligations and agreements and assumed certain
liabilities under, pursuant to, and in accordance
with the Loan Documents, including those set
forth in that certain Guaranty dated of even date with the Note
(the “Guaranty”), by the Original Guarantor in favor of
the Original Lender.
F. The
Original Guarantor, by its execution hereof, hereby acknowledges,
ratifies and re-affirms its obligation to pay and perform each and
all of the obligations, agreements and liabilities of Guarantor
under, pursuant to, and in accordance with the Guaranty as fully
and completely as if it were re-executing and re-delivering the
Guaranty as of the date of this Agreement. Original Guarantor
acknowledges and agrees that notwithstanding the assumption of
Original Guarantor’s obligations under the Guaranty by New
Guarantor as set forth in this Agreement, Original Guarantor is in
no way released from Original Guarantor’s obligations as set
forth in the Guaranty whether now existing or hereafter arising,
but is and shall continue to be firmly bound to pay and perform all
indebtedness and obligations as required by the terms of the
Guaranty, until payment in full of all indebtedness secured by the
Mortgage. The obligations of Original Guarantor and New Guarantor
shall be joint and several.
G.
Lender is the current holder of all of the Original
Lender’s interest in the Loan and Loan Documents.
H.
Original Borrower has agreed to sell and HCRI Drum Hill
Properties, LLC, a Delaware limited liability company (the
“New Borrower”) has agreed to purchase, that certain
real property more particularly described on Exhibit A
attached to the Mortgage, together with all other property
encumbered by the Mortgage or the other Loan Documents except as
set forth below (collectively, the “Property”).
Notwithstanding the foregoing, the parties recognize and agree that
Original Borrower is not transferring to New Borrower any of the
following: (a) 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, (b) 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, (c) 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, (d) all rights to the
telephone numbers of the Assisted Living Facility and its
sequential numbers, and (e) 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 of excluded property shall
continue to be owned by Original Borrower who, as Operating Lessee,
will lease the Assisted Living Facility back from New Borrower,
that such items are pledged as collateral to secure Operating
Lessee’s obligations under the Operating Lease (hereinafter
defined) for the benefit of New Borrower and, in turn, also for the
benefit of Lender under the Assignment of Rents.
I.
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.
J. The
Original Borrower and the New Borrower have requested that the
Lender consent to the transfer and the lease, subject to the
Mortgage, the Assignment of Rents and the other Loan Documents, and
subject to the assumption by the New Borrower of the Loan and the
obligations of the Original Borrower under the Loan Documents
(collectively hereinafter, the “Transfer and
Assumption”). The Lender has required, among other things, as
a condition of its consent to the Transfer and Assumption, that the
Assuming Guarantor, effective from and after the date hereof,
become obligated and responsible for the performance of each and
all of the obligations and agreements of the Original Guarantor
under the Guaranty, and that the Assuming Guarantor, effective from
and after the date hereof, become liable and responsible for each
and all of the liabilities of the Original Guarantor thereunder, as
fully and completely as if the Assuming Guarantor had originally
executed and delivered the Guara
