Exhibit 10.2
SEVENTH AMENDMENT TO CREDIT AND SECURITY
AGREEMENT
THIS SEVENTH AMENDMENT TO CREDIT AND
SECURITY AGREEMENT (this “ Amendment ”) dated as
of August 4, 2009 by and among FIVE STAR QUALITY CARE, INC.
(the “ Borrower ”), each of the parties
identified as “Guarantor” on the signature
pages hereto (each a “ Guarantor ”), and
WACHOVIA BANK, NATIONAL ASSOCIATION, as Lender (the “
Lender ”).
WHEREAS, the Borrower and the Lender
have entered into that certain Credit and Security Agreement dated
as of May 9, 2005 (as amended and in effect immediately
prior to the date hereof, the “ Credit Agreement
”);
WHEREAS, the Borrower has informed
the Lender that Senior Housing Properties Trust (“ SNH
”) intends to enter into certain financing (the “
SNH Financing ”) with Citibank, N.A. (with its
successors and assigns, the “ SNH Lender
”). Pursuant to the SNH Financing, the New Landlord (as
hereinafter defined) will grant mortgages encumbering each of the
properties listed on Schedule 1.1(c) attached hereto
(each an “ Affected Property ” and collectively
the “ Affected Properties ”) in favor of the SNH
Lender;
WHEREAS, concurrently with the SNH
Financing, title to the Affected Properties (except for the
Affected Property known as “ Heartlands at Ellicott
City ”) will be transferred from the current owners of
such Affected Properties to SNH FM Financing LLC (“
Financing LLC ”) or its immediate parent, SNH FM
Financing Trust (“ Financing Trust ”), each a
wholly owned subsidiary of SNH. Financing LLC, Financing
Trust and Ellicott City Land I, LLC, a wholly owned subsidiary of
SNH and the owner of the Affected Property known as
“Heartlands at Ellicott City” (with Financing LLC and
Financing Trust, collectively, the “ New Landlord
”) will lease each of the Affected Properties to FVE FM
Financing, Inc., a wholly owned subsidiary of the Borrower
(the “ New Tenant ”), who will sublease each
Affected Property to the applicable Provider that currently
operates such Affected Property, as such Providers are listed on
Schedule 1.1(d) attached hereto (“ Relevant
Existing Providers ”), and to each Released Guarantor
(defined below);
WHEREAS, in connection with the SNH
Financing, the Borrower requests that the Lender release each
Provider listed on Schedule 1.1(e) attached hereto from
the Liens granted in favor of the Lender and from its respective
obligations under the Guaranty (each a “ Released
Guarantor ” and collectively the “ Released
Guarantors ”);
WHEREAS, as a condition to the SNH
Financing, among others, the SNH Lender requires that the New
Tenant and each Relevant Existing Provider and each Released
Guarantor execute a subordination, assignment and security
agreement (each an “ SASA ” and collectively the
“ SASAs ”) for each Affected Property in favor
of the SNH Lender. Further, the SNH Lender requires that, on
or after the closing of the SNH Financing, the Relevant Existing
Providers transfer all licenses, permits and other operating assets
relating to each Affected Property to one
or more separate, single purpose, wholly owned
Subsidiaries of the Borrower (each, a “ New Operator
”); and
WHEREAS, the Borrower and the Lender
desire to amend certain provisions of the Credit Agreement on the
terms and conditions contained herein.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, the parties hereto
hereby agree as follows:
Section 1. Specific
Amendments to Credit Agreement . The parties hereto agree
that the Credit Agreement is amended as follows:
(a)
The Credit Agreement is amended
inserting the following new definitions into
Section 1.1:
“ Affected Account
” means an Account of a Relevant Existing Provider or a
Released Guarantor that is generated by, and only by, the operation
of an Affected Property by such Relevant Existing Provider or
Released Guarantor, as applicable.
“ Affected Property
” means each of the Properties listed on
Schedule 1.1(c) attached hereto that will be encumbered
by mortgages in favor of the SNH Lender to secure the SNH
Financing.
“ New Landlord ”
means, collectively, SNH FM Financing LLC, its immediate parent,
SNH FM Financing Trust, and Ellicott City Land I, LLC, each a
wholly owned subsidiary of SNH.
“ New Operator ”
means, for each Affected Property, the wholly owned, single purpose
subsidiary of the Borrower to which the Relevant Existing Provider
or Released Guarantor that operates such Affected Property will, on
or after the consummation of the SNH Financing, transfer all of
such Person’s licenses, permits and other operating assets
relating to such Affected Property.
“ New Tenant ”
means FVE FM Financing, Inc., a wholly owned Subsidiary of the
Borrower to whom the New Landlord has, as of the Seventh Amendment
Date, leased each Affected Property in connection with the SNH
Financing.
“ Released Guarantors
” means each Provider listed on Schedule 1.1(e)
attached hereto.
“ Relevant Existing
Provider ” means each Provider listed on Schedule
1.1(d) attached hereto.
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“ SASA ” means
each subordination, assignment and security agreement relating to
the SNH Financing and executed by a Relevant Existing Provider, a
Released Guarantor or a New Operator for each Affected Property
that such Person operates.
“ Seventh Amendment
Date ” means August 4, 2009.
“ SNH Credit Agreement
” means that certain Master Credit Facility Agreement dated
as of August 4, 2009 by and among the SNH Lender and SNH, as
borrower, as amended from time to time in accordance with
Section 10.7.
“ SNH Financing ”
means that certain Term Loan made by the SNH Lender in the original
principal amount of $512,934,000 pursuant to the SNH Credit
Agreement.
“ SNH Lender ”
means Citibank, N.A., and its successors and assigns.
“ SNH Loan Documents
” means the SNH Credit Agreement, each SASA, each mortgage
encumbering an Affected Property and each other agreement, document
and instrument executed and delivered in connection therewith, each
as amended from time to time in accordance with
Section 10.7.
(b)
The Credit Agreement is further
amended by adding the following new clause (i) to the end of
the definition of “Permitted Liens” set forth in
Section 1.1:
“(i)
the Liens created by the SASAs
executed and delivered by each Relevant Existing Provider, each
Released Guarantor and each New Operator.”
(c)
The Credit Agreement is further
amended by deleting each reference to “Agreement Date”
in Sections 7.1(b) and 7.1(cc) and substituting in its place a
reference to “Seventh Amendment Date”, and by deleting
the reference to “Agreement Date” in the last sentence
of Section 7.1(f) and substituting in its place a
reference to “Seventh Amendment Date.”
(d)
The Credit Agreement is further
amended by inserting the following at the end of
Section 8.16:
“Notwithstanding the
foregoing, a Relevant Existing Provider shall not be required to
execute and deliver a collateral assignment of a Lease of an
Affected Property entered into by such Relevant Existing Provider
and the New Tenant.”
(e)
The Credit Agreement is further
amended by deleting the “.” following clause
(f) of Section 10.3, replacing it with a “;
and” and inserting the following new clause (g) into
Section 10.3 in appropriate alphabetical order:
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“(g)
The SNH Financing.”
(f)
The Credit Agreement is further
amended by deleting the reference to “Schedule 7.1.(f)”
in clause (ii) of Section 10.4(a) and substituting
in its place a reference to “Schedule
10.4(a)”.
(g)
The Credit Agreement is further
amended by deleting the “.” following clause
(c) of Section 10.5, replacing it with a “;
and” and inserting the following new clause (d) into
Section 10.5 in appropriate alphabetical order:
“(d)
Subject to compliance with
Section 5.3., a wholly owned Subsidiary of the Borrower may
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution) so long as (i) if the liquidating or dissolving
Subsidiary is a Loan Party, any and all assets of such Subsidiary
are transferred to a Loan Party or such Person that shall become a
Guarantor if required under Section 8.12 at the time of the
effectiveness of such transfer, (iii) immediately prior to
such liquidation or dissolution, and immediately thereafter and
after giving effect thereto, no Default or Event of Default is or
would be in existence, and (iv) if the liquidating or
dissolving Subsidiary is a Loan Party, the Borrower shall give the
Lender notice of any such liquidation or dissolution promptly
following the effectiveness thereof.”
(h)
The Credit Agreement is further
amended by restating the last sentence of Section 10.5 in its
entirety and substituting in its place the following:
“Notwithstanding the
foregoing, no Loan Party shall sell, transfer or otherwise convey
any of its right, title or interest in, to or under any of the
Collateral of such Loan Party; provided, however, that each
Relevant Existing Provider and each Released Guarantor may transfer
to the New Operators such Relevant Existing Provider’s and
such Released Guarantor’s licenses, permits and other
operating assets that relate to, and only relate to, each Affected
Property that such Relevant Existing Provider or such Released
Guarantor operates.”
(i)
The Credit Agreement is further
amended by deleting Section 10.7 in its entirety and
substituting in its place the following:
“ Section 10.7
Modification of Organizational Documents, Shared Services Agreement
and SNH Loan Documents.
The Borrower shall not, and shall
not permit any Subsidiary or other Loan Party to, amend,
supplement, restate or otherwise modify its articles or certificate
of incorporation, by-laws, operating agreement, declaration of
trust, partnership agreement or other applicable organizational
document if such amendment, supplement, restatement or other
modification could reasonably be expected to have a Material
Adverse Effect. Notwithstanding the foregoing, no Trust shall
amend the provisions of its declaration of trust relating to SPC
Debt. The
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Borrower shall not amend,
supplement, restate or otherwise modify the Shared Services
Agreement if such amendment, supplement, restatement or other
modification could reasonably be expected to have a Material
Adverse Effect. The Borrower shall not, and shall not permit
any Subsidiary or other Loan Party to, amend, supplement, restate
or otherwise modify any of the SNH Loan Documents if (a) a
Relevant Existing Operator is in any way obligated under the SNH
Loan Documents and (b)such amendment, supplement, restatement or
other modification is materially adverse to the rights and
interests of the Lender hereunder.”
(j)
The Credit Agreement is further
amended by deleting Section 10.10(a) in its entirety and
substituting in its place the following:
“(a)
Deposit
Accounts and Lockboxes for Account Collections
. The
Borrower shall not, and shall not permit any Provider to, establish
any lockbox or deposit account into which any Proceeds of Accounts
will be deposited, or cause or permit to be deposited, any cash,
checks, drafts or similar items representing Proceeds of Accounts
in any deposit accounts, other than the Government Lockboxes, the
Provider Accounts and the Borrower Accounts or direct or permit any
Account Debtor to remit payments on the Accounts other than to the
applicable Provider Account, Government Lockbox or Borrower
Account. Except as otherwise expressly permitted under
Section 8.13., the Borrower Accounts and Provider Accounts
shall be subject to an Account Control Agreement at all
times. Notwithstanding the foregoing, the Relevant Existing
Providers and the Released Guarantors may deposit and may cause to
be deposited the proceeds of Affected Accounts, and only of
Affected Accounts, into lockboxes or deposit accounts other than
the Government Lockboxes, the Provider Accounts or the Borrower
Accounts.”
(k)
The Credit Agreement is further
amended by inserting the new Schedules 1.1(c), 1.1(d),
1.1(e) and 10.4(a) attached hereto in appropriate
numerical and alphabetical order.
(l)
The Credit Agreement is further
amended by deleting Schedules 1.1(b), 7.1(b), 7.1(f) and
7.1(cc) in their entireties and substituting in their place
Schedules 1.1(b), 7.1(b), 7.1(f) and 7.1(cc), respectively,
each of which is attached hereto.
Section 2. Release of
Certain Guarantors; Excluded Subsidiaries . Subject to
the satisfaction of the conditions set forth in Section 4
below, the Lender hereby releases each of the Released Guarantors
from its obligations under Article XII of the Credit Agreement
and the Lender further hereby releases its Lien on such Released
Guarantor’s Collateral. In addition, subject to the
satisfaction of the conditions set forth in Section 4 hereof,
each of the New Tenant, each New Operator and each Released
Guarantor shall be deemed to be an Excluded Subsidiary; provided,
however, (i) the New Tenant shall not be deemed to be an
Excluded Subsidiary if it leases Properties other than Affected
Properties, (ii) no New Operator shall be deemed to be an
Excluded Subsidiary if it operates a Property other than an
Affected Property and (iii) a Released
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Guarantor shall not be deemed to be Excluded
Subsidiary if such Released Guarantor is a Provider with respect to
a Property other than an Affected Property. Subject to the
satisfaction of the conditions set forth in Section 4 below,
the Lender hereby authorizes each Released Guarantor to file a
termination statement with respect to each existing UCC-1 financing
statement, which termination shall be in form and substance
satisfactory to the Lender, showing such Released Guarantor as
debtor and the Lender as Secured Party.
Section 3. Release of
Lien . Subject to the satisfaction of the conditions set
forth in Section 4 below, the Lender releases its Lien on all
right, title and interest of each Relevant Existing Provider
(collectively, the “ Relevant Released Collateral
” of such Relevant Existing Provider) to the following
property:
(a)
all Affected Accounts;
(b)
deposit account number 2000049281642
at Wachovia Bank, N.A., in which is deposited all revenue generated
by, and only by, the operation of an Affected Property by the
Relevant Existing Providers;
(c)
all Chattel Paper of such Relevant
Existing Provider but only to the extent generated by, and only by,
the operation of an Affected Property by such Relevant Existing
Provider;
(d)
all Supporting Obligations relating
to any of the foregoing;
(e)
all books and records pertaining to
any of the foregoing (including without limitation, customer lists,
credit files, computer programs, printouts and other computer
materials and records);
(f)
all Leases entered into by any
Relevant Existing Providers with respect to, and only to, the
Affected Properties; and
(g)
all accessions to, substitutions
for, and all replacements, products and proceeds of the foregoing
(including without limitation, proceeds of insurance policies
insuring any of the foregoing).
The Lender does not release any other Collateral
of any Relevant Existing Providers from the Lender’s Lien in
the Collateral of the Relevant Existing Providers, and each
Relevant Existing Provider reaffirms its grant of its Lien to the
Lender in such other Collateral. Subject to the satisfaction
of the conditions set forth in Section 4 below, the Lender
hereby authorizes each Relevant Existing Provider to file an
amendment to each existing UCC-1 financing statement, which
amendment shall be in form and substance satisfactory to the
Lender, describing the assets covered by security interests granted
by such Relevant Existing Provider to the Lender to reflect the
release of the Relevant Released Collateral.
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Section 4. Conditions
Precedent . The effectiveness of this Amendment is
subject to receipt by the Lender of each of the following, each in
form and substance satisfactory to the Lender:
(a)
A counterpart of this Amendment duly
executed by the Borrower and each Guarantor;
(b)
An Amended and Restated Collateral
Assignment of Lease (Lease No. 1) duly executed by each
“Assignor” party thereto, and a Release and Consent
(Lease No. 1) duly executed by each “Landlord”
party thereto, in each case in substantially the forms attached
hereto as Exhibits A-1 and A-2;
(c)
An Amended and Restated Collateral
Assignment of Lease (Lease No. 2) duly executed by each
“Assignor” party thereto, and a Release and Consent
(Lease No. 2) duly executed by each “Landlord”
party thereto, in each case in substantially the forms attached
hereto as Exhibits B-1 and B-2;
(d)
A Collateral Assignment of Lease
(Lease No. 4) duly executed by each “Assignor”
party thereto, and a Release and Consent (Lease No. 4) duly
executed by each “Landlord” party thereto, in each case
in substantially the forms attached hereto as Exhibits C-1 and
C-2;
(e)
Each of the items required by
Section 8.12(a) of the Credit Agreement with respect to
each Subsidiary listed on Exhibit D attached hereto in order
to cause such Subsidiary to become a Guarantor under the Credit
Agreement;
(f)
Executed copies of the SNH Loan
Documents certified by a Responsible Officer to be true, correct
and complete;
(g)
Executed copies of (i) the
Amended and Restated Master Lease Agreement (Lease No. 1)
dated as of August 4, 2009 by and among certain affiliates of
SNH, as Landlord, and Five Star Quality Care Trust, as Tenant,
(ii) the Amended and Restated Master Lease Agreement (Lease
No. 2) dated as of August 4, 2009 by and among certain
affiliates of SNH, as Landlord, and Five Star Quality Care Trust,
FS Commonwealth LLC, FS Patriot LLC and FS Tenant Holding Company
Trust, as Tenants, and (iii) the Amended and Restated] Master
Lease Agreement (Lease No. 4) dated as of August 4, 2009
by and among certain affiliates of SNH, as Landlord, and Five Star
Quality Care Trust, Five Star Quality Care — NS Tenant, LLC
and FS Tenant Holding Company Trust, as Tenants; and
(h)
Such other documents, instruments
and agreements as the Lender may reasonably request.
Section 5.
Effectiveness . Upon satisfaction of the conditions
precedent contained in Section 4, this Amendment shall be
deemed to be effective as of the date hereof.
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Section 6.
Representations . The Borrower represents and warrants
to the Lender that:
(a)
Authorization
. The Borrower has the right
and power, and has taken all necessary action to authorize it, to
execute and deliver this Amendment and to perform its obligations
hereunder and under the Credit Agreement, each as amended by this
Amendment, in accordance with their respective terms. This
Amendment has been duly executed and delivered by a duly authorized
officer of the Borrower and this Amendment, the Credit Agreement,
each as amended by this Amendment, is a legal, valid and binding
obligation of the Borrower enforceable against the Borrower in
accordance with its respective terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors rights generally and (ii) the
availability of equitable remedies may be limited by equitable
principles of general applicability.
(b)
Compliance with Laws,
etc . The execution
and delivery by the Borrower of this Amendment and the performance
by the Borrower of this Amendment and the Credit Agreement, each as
amended by this Amendment, in accordance with their respective
terms, do not and will not, by the passage of time, the giving of
notice or otherwise: (i) require any Governmental
Approval or violate any Applicable Law relating to any Loan Party;
(ii) conflict with, result in a breach of or constitute a
default under the organizational documents of any Loan Party, or
any indenture, agreement or other instrument to which any Loan
Party is a party or by which it or any of its respective properties
may be bound; or (iii) result in or require the creation or
imposition of any Lien upon or with respect to any property now
owned or hereafter acquired by any Loan Party.
(c)
No Default
. No Default or Event of
Default has occurred and is continuing as of the date hereof nor
will exist immediately after giving effect to this
Amendment.
Section 7.
Reaffirmation of Representations by Borrower . The
Borrower hereby repeats and reaffirms all representations and
warranties made by the Borrower to the Lender in the Credit
Agreement and the other Loan Documents to which it is a party on
and as of the date hereof and after giving effect to this Amendment
with the same force and effect as if such representations and
warranties were set forth in this Amendment in full.
Section 8.
Reaffirmation of Guaranty by Guarantors . Each
Guarantor (other than a Released Guarantor) hereby reaffirms its
continuing obligations to the Lender under Article XII of the
Credit Agreement and agrees that the transactions contemplated by
this Amendment shall not in any way affect the validity and
enforceability of its obligations under Article XII of the
Credit Agreement, or reduce, impair or discharge the obligations of
such Guarantor thereunder.
Section 9. Certain
References . Each reference to the Credit Agreement in
any of the Loan Documents shall be deemed to be a reference to the
Credit Agreement, as amended by this Amendment.
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Section 10.
Expenses . The Borrower shall reimburse the Lender
upon demand for all costs and expenses (including attorneys’
fees) incurred by the Lender in connection with the preparation,
negotiation and execution of this Amendment and the other
agreements and documents executed and delivered in connection
herewith.
Section 11.
Benefits . This Amendment shall be binding upon and
shall inure to the benefit of the parties hereto and their
respective successors and assigns.
Section 12. GOVERNING
LAW . THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH
STATE.
Section 13. Effect
. Except as expressly herein amended, the terms and
conditions of the Credit Agreement and the other Loan Documents
remain in full force and effect. The amendments contained
herein shall be deemed to have prospective application only, unless
otherwise specifically stated herein.
Section 14.
Counterparts . This Amendment may be executed in any
number of counterparts, each of which shall be deemed to be an
original and shall be binding upon all parties, their successors
and assigns.
Section 15.
Definitions . All capitalized terms not otherwise
defined herein are used herein with the respective definitions
given them in the Credit Agreement.
[Signatures on Next Page]
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IN WITNESS WHEREOF, the parties
hereto have caused this Seventh Amendment to Credit and Security
Agreement to be executed as of the date first above
written.
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THE BORROWER:
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FIVE STAR QUALITY CARE,
INC.
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By:
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/s/ Bruce J.
Mackey Jr.
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Name:
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Bruce J. Mackey Jr.
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Title:
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President
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THE LENDER:
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WACHOVIA BANK, NATIONAL
ASSOCIATION
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By:
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/s/ Matthew Ricketts
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Name:
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Matthew Ricketts
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Title:
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Director
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[Signatures Continued on Next Page]
[Signature Page to Seventh
Amendment to Credit and Security Agreement
with Five Star Quality
Care, Inc.]
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THE GUARANTORS:
ALLIANCE PHARMACY SERVICES,
LLC
FIVE STAR QUALITY CARE-CA,
INC.
FIVE STAR QUALITY CARE-IA,
INC.
FIVE STAR QUALITY CARE-NE,
INC.
FIVE STAR QUALITY CARE-AZ,
LLC
FIVE STAR QUALITY CARE-CA,
LLC
FIVE STAR QUALITY CARE-COLORADO,
LLC
FIVE STAR QUALITY CARE-CT,
LLC
FIVE STAR QUALITY CARE-GA,
LLC
FIVE STAR QUALITY CARE-IA,
LLC
FIVE STAR QUALITY CARE-MO,
LLC
FIVE STAR QUALITY CARE-NE,
LLC
FIVE STAR QUALITY CARE-WI,
LLC
FIVE STAR QUALITY CARE-WY,
LLC
FIVE STAR QUALITY CARE-FL,
LLC
FIVE STAR QUALITY CARE-KS,
LLC
FIVE STAR QUALITY CARE-MD,
LLC
FIVE STAR QUALITY CARE-NC,
LLC
FIVE STAR QUALITY CARE-VA,
LLC
FS LAFAYETTE TENANT TRUST
FS LEISURE PARK TENANT
TRUST
FS LEXINGTON TENANT TRUST
FS TENANT POOL I TRUST
FS TENANT POOL II TRUST
FS TENANT POOL III TRUST
FS TENANT POOL IV TRUST
MORNINGSIDE OF BELMONT,
LLC
MORNINGSIDE OF GALLATIN,
LLC
MORNINGSIDE OF SPRINGFIELD,
LLC
FSQC FUNDING CO., LLC
FIVE STAR QUALITY CARE-CA II,
LLC
FIVE STAR QUALITY CARE
TRUST
FS TENANT HOLDING COMPANY
TRUST
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By:
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/s/ Bruce J. Mackey Jr.
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Name:
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Bruce J. Mackey Jr.
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Title:
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President
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[Signatures Continued on Next
Page]
[Signature Page to Seventh
Amendment to Credit and Security Agreement
with Five Star Quality
Care, Inc.]
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THE GUARANTORS (cont.):
MORNINGSIDE OF ALABAMA,
L.P.
MORNINGSIDE OF ANDERSON,
L.P.
MORNINGSIDE OF ATHENS, LIMITED
PARTNERSHIP
MORNINGSIDE OF COLUMBUS,
L.P.
MORNINGSIDE OF DALTON, LIMITED
PARTNERSHIP
MORNINGSIDE OF DECATUR,
L.P.
MORNINGSIDE OF EVANS, LIMITED
PARTNERSHIP
MORNINGSIDE OF GREENWOOD,
L.P.
MORNINGSIDE OF KENTUCKY, LIMITED
PARTNERSHIP
By: LIFETRUST
AMERICA, INC., its General Partner
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By:
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/s/ Bruce J. Mackey Jr.
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Name:
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Bruce J. Mackey Jr.
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Title:
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President
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ANNAPOLIS HERITAGE PARTNERS, LLC
COLUMBIA HERITAGE PARTNERS, LLC
ENCINITAS HERITAGE PARTNERS, LLC
FIVE STAR QUALITY CARE - SAVANNAH,
LLC
FREDERICK HERITAGE PARTNERS, LLC
FSQ PHARMACY HOLDINGS LLC
HAGERSTOWN HERITAGE PARTNERS, LLC
NEWARK HERITAGE PARTNERS I, LLC
NEWARK HERITAGE PARTNERS II, LLC
REDLANDS HERITAGE PARTNERS, LLC
STOCKTON HERITAGE PARTNERS, LLC,
each a Delaware limited liability
company
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By:
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/s/ Bruce J. Mackey Jr.
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Bruce
J. Mackey Jr.
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President
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[Signature Page to Seventh
Amendment to Credit and Security Agreement
with Five Star Quality
Care, Inc.]
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THE GUARANTORS (cont.):
FIVE STAR QUALITY CARE - GHV,
LLC
FIVE STAR QUALITY CARE - IL,
LLC
FIVE STAR QUALITY CARE - IN,
LLC
FIVE STAR QUALITY CARE - MN,
LLC
FIVE STAR QUALITY CARE - MS,
LLC
FIVE STAR QUALITY CARE - NJ,
LLC
FIVE STAR QUALITY CARE - NS
OPERATOR, LLC
FIVE STAR QUALITY CARE - NS OWNER,
LLC
FIVE STAR QUALITY CARE - NS TENANT,
LLC
FIVE STAR QUALITY CARE - OBX
OPERATOR, LLC
FIVE STAR QUALITY CARE - OBX OWNER,
LLC
FIVE STAR QUALITY CARE - TX,
LLC
FS COMMONWEALTH LLC
FS PATRIOT LLC
FSQC-AL, LLC,
each a Maryland limited
liability company
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By:
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/s/ Bruce J. Mackey Jr.
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Bruce
J. Mackey Jr.
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President
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MORNINGSIDE OF CONCORD, LLC
MORNINGSIDE OF GASTONIA, LLC
MORNINGSIDE OF GREENSBORO, LLC
MORNINGSIDE OF RALEIGH, LLC
MORNINGSIDE OF WILLIAMSBURG, LLC,
each a Delaware limited liability
company
By: LIFETRUST AMERICA, INC., its sole
member
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By:
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/s/ Bruce J. Mackey Jr.
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Bruce
J. Mackey Jr.
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President
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[Signature Page to Seventh
Amendment to Credit and Security Agreement
with Five Star Quality
Care, Inc.]
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THE GUARANTORS (cont.):
MORNINGSIDE OF FAYETTE,
L.P.
MORNINGSIDE OF PARIS,
L.P.,
each a Delaware limited
partnership
By: LIFETRUST AMERICA, INC.,
its general partner
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By:
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/s/ Bruce J. Mackey Jr.
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Bruce J. Mackey Jr.
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President
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FRESNO HERITAGE PARTNERS, A CALIFORNIA LIMITED
PARTNERSHIP
ROSEVILLE HERITAGE PARTNERS, A CALIFORNIA
LIMITED PARTNERSHIP
By: SOMERFORD PLACE LLC, its general
partner
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By:
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/s/ Bruce J. Mackey Jr.
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Bruce J. Mackey Jr.
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President
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SCHEDULE 1.1(b)
MATERIAL PROVIDERS
Five Star Quality Care-AZ,
LLC (Delaware)
Five Star Quality Care-CA,
LLC (Delaware)
Five Star Quality
Care-Colorado, LLC (Delaware)
Five Star Quality Care-FL,
LLC (Delaware)
Five Star Quality Care-GA,
LLC (Delaware)
Five Star Quality Care -
GHV, LLC (Maryland)
Five Star Quality
Care-IA, Inc. (Delaware)
Five Star Quality Care-IA,
LLC (Delaware)
Five Star Quality Care - IN,
LLC (Maryland)
Five Star Quality Care - KS,
LLC (Delaware)
Five Star Quality Care - MN,
LLC (Maryland)
Five Star Quality Care-MO,
LLC (Delaware)
Five Star Quality
Care-NE, Inc. (Delaware)
Five Star Quality Care-NE,
LLC (Delaware)
Five Star Quality Care - NJ,
LLC (Maryland)
Five Star Quality Care - NS
Operator, LLC (Maryland)
Five Star Quality Care
— OBX Operator, LLC (Maryland)
Five Star Quality Care-WI,
LLC (Delaware)
Five Star Quality Care-WY,
LLC (Delaware)
FS Commonwealth LLC
(Maryland)
FS Lafayette Tenant Trust
(Maryland)
FS Leisure Park Tenant Trust
(Maryland)
FS Lexington Tenant Trust
(Maryland)
FS Patriot LLC
(Maryland)
FSQ Pharmacy Holdings LLC
(Delaware)
FS Tenant Pool I Trust
(Maryland)
FS Tenant Pool II Trust
(Maryland)
FS Tenant Pool III Trust
(Maryland)
SCHEDULE 1.1(c)
AFFECTED
PROPERTIES
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Affected Properties
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Existing Operator
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New Operator
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The facility known as Foulk Manor North and
located at 1212 Foulk Road, Wilmington, Delaware
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FS Tenant Pool I Trust, a Maryland business
trust (“ FVE Pool I Trust ”)
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Five Star Foulk Manor North LLC
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The facility known as Park Summit at Coral
Springs and located at 8500 Royal Palm Boulevard, Coral Springs,
Florida.
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FVE Pool I Trust
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Five Star Coral Springs LLC
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The facility known as Montebello and located at
10500 Academy Road, Albuquerque, New Mexico.
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FVE Pool I Trust
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Five Star Montebello LLC
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The facility known as Forum at Lincoln Heights
and located at 311 West Nottingham Road, San Antonio,
Texas
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FVE Pool I Trust
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Five Star Lincoln Heights LLC
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The facility known as Remington Club I and II
and located at 16925 and 16916 Hierba Drive, San Diego,
California.
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FS Tenant Pool II Trust, a Maryland business
trust (“ FVE Pool II Trust ”)
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Five Star Remington Club LLC
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The facility known as Coral Oaks and located at
900 West Lake Road, Palm Harbor, Florida
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FVE Pool II Trust
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Five Star Coral Oaks LLC
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The facility known as Forum at the Crossing and
located at 8505 Woodfield Crossing Boulevard, Indianapolis,
Indiana
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FVE Pool II Trust
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Five Star Crossing LLC
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The facility known as Gables at Winchester and
located at 299 Cambridge Street, Winchester,
Massachusetts
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FVE Pool II Trust
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Five Star Gables LLC
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The facility known as Forum at Woodlands and
located at 5055 West Panther Creek Drive, The Woodlands,
Texas.
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FVE Pool II Trust
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Five Star Woodlands LLC
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|
Affected Properties
|
|
Existing Operator
|
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New Operator
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The facility known as Forum at Desert Harbor and
located at 13840 North Desert Harbor Drive, Peoria,
Arizona.
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FS Tenant Pool III Trust, a Maryland business
trust (“ FVE Pool III Trust ”)
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Five Star Desert Harbor LLC
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The facility known as Forum of Tucson and
located at 2500 N. Rosemont Boulevard, Tucson, Arizona
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FVE Pool III Trust
|
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Five Star Tucson Forum LLC
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The facility known as Forum at Overland Park and
located at
3501 West 95th Street, Overland
Park, Kansas.
|
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FVE Pool III Trust
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Five Star Overland Park LLC
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The facility known as Forum at Brookside and
located at 200 Brookside Drive, Louisville, Kentucky.
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FVE Pool III Trust
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Five Star Brookside LLC
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The facility known as Forum at Knightsbridge and
located at 4590 and 4625 Knightsbridge Boulevard, Columbus,
Ohio.
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FVE Pool III Trust
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Five Star Knightsbridge LLC
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The facility known as Forum at Memorial Woods
and located at 777 North Post Oak Road, Houston, Texas
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FVE Pool III Trust
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Five Star Memorial Woods LLC
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The facility known as HeartFields at Easton and
located at 700 Port Street, Easton, Maryland
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Five Star Quality Care—MD, LLC, a Delaware
limited liability company (“ FVE MD LLC
”)
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Five Star Easton Heartfields LLC
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The facility known as Heartlands at Severna Park
and located at 715 Benfield Road, Severna Park,
Maryland.
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FVE MD LLC
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Five Star Severna Park LLC
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The facility known as Aspenwood and located at
14400 Homecrest Road, Silver Springs, Maryland.
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FVE MD LLC
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Five Star Aspenwood LLC
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The facility known as Rio Las Palmas and located
at 877 East March Lane, Stockton, California.
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Five Star Quality Care—CA, LLC, a Delaware
limited liability company
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Five Star Rio Las Palmas LLC
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The facility known as HeartFields at Cary and
located at 1050 Crescent Green Drive, Cary, North
Carolina.
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Five Star Quality Care—NC, LLC, a Delaware
limited liability company
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Five Star Cary Heartfields LLC
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|
Affected Properties
|
|
Existing Operator
|
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New Operator
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The facility known as Savannah Square and
located at One Savannah Square Drive, Savannah, Georgia.
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Five Star Quality Care—Savannah, LLC, a
Delaware limited liability company
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Five Star Savannah Square LLC
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The facility known as HeartFields at
Fredericksburg and located at 20 HeartFields Lane, Fredericksburg,
Virginia.
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Five Star Quality Care—VA, LLC, a Delaware
limited liability company
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Five Star Frederick Heartfields LLC
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The facility known as Meadowmere —
Northshore Assisted Living and located at 10803 North Port
Washington Road, Mequon, Wisconsin.
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Five Star Quality Care—WI, LLC, a Delaware
limited liability company
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Five Star Northshore LLC
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The facility known as Morningside of Bellgrade
and located at 2800 Polo Parkway, Midlothian, Virginia.
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Morningside of Bellgrade, Richmond, LLC, a
Delaware limited liability company
|
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Five Star Morningside Bellgrade LLC
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The facility known as Morningside of
Charlottesville and located at 491 Crestwood Drive,
Charlottesville, Virginia.
|
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Morningside of Charlottesville, LLC, a Delaware
limited liability company
|
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Five Star Morningside Charlottesville
LLC
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The facility known as Morningside of Newport
News and located at 655 Denbigh Boulevard, Newport News,
Virginia.
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Morningside of Newport News, LLC, a Delaware
limited liability company
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Five Star Newport News LLC
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The facility known as Heartlands at Ellicott
City and located at 3004 North Ridge Road, Ellicott City,
Maryland.
|
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The Heartlands Retirement
Community—Ellicott City I, Inc., a Maryland
corporation
|
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Five Star Ellicott City LLC
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SCHEDULE 1.1(d)
RELEVANT EXISTING
PROVIDERS
Five Star Quality Care-MD, LLC
Five Star Quality Care-CA, LLC
Five Star Quality Care-VA, LLC
Five Star Quality Care-WI, LLC
FS Tenant Pool I Trust
FS Tenant Pool II Trust
FS Tenant Pool III Trust
SCHEDULE 1.1(e)
RELEASED
GUARANTORS
Five Star Quality Care-NC, LLC
Five Star Quality Care-Savannah, LLC
Morningside of Bellgrade, Richmond,
LLC
Morningside of Charlottesville, LLC
Morningside of Newport News, LLC
The Heartlands Retirement Community-Ellicott
City I, Inc.
SCHEDULE 7.1(b)
OWNERSHIP
STRUCTURE
See attached organizational chart
for equity interest holdings information.
|
Subsidiaries (Jurisdiction of Organization)
|
|
Provider/Material
Subsidiary and/or
Excluded
Subsidiary
|
|
Equity Interest
|
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Affiliates Insurers Limited (Bermuda)
|
|
Excluded Subsidiary
|
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Common Stock
|
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Alliance Pharmacy Services, LLC
(Delaware)
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Membership Interests
|
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Annapolis Heritage Partners, LLC
(Delaware)
|
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Provider
|
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Membership Interests
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CCC Boynton Beach, Inc.
(Delaware)
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Common Stock
|
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Columbia Heritage Partners, LLC
(Delaware)
|
|
Provider
|
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Membership Interests
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Emerson Management Holdings, LLC
(Delaware)
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Membership Interests
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Encinitas Heritage Partners, LLC
(Delaware)
|
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Provider
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Membership Interests
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Five Star Advertising, Inc.
(Delaware)
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Common Stock
|
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Five Star Aspenwood LLC (Delaware)
|
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Excluded Subsidiary
|
|
Membership Interests
|
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Five Star Brookside LLC (Delaware)
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|
Excluded Subsidiary
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|
Membership Interests
|
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Five Star Cary Heartfields LLC
(Delaware)
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|
Excluded Subsidiary
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Membership Interests
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Five Star Coral Oaks LLC (Delaware)
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|
Excluded Subsidiary
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Membership Interests
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Five Star Coral Springs LLC
(Delaware)
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|
Excluded Subsidiary
|
|
Membership Interests
|
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Five Star Crossing LLC (Delaware)
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Excluded Subsidiary
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|
Membership Interests
|
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Five Star Desert Harbor LLC
(Delaware)
|
|
Excluded Subsidiary
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|
Membership Interests
|
|
Subsidiaries (Jurisdiction of Organization)
|
|
Provider/Material
Subsidiary and/or
Excluded
Subsidiary
|
|
Equity Interest
|
|
|
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Five Star Easton Heartfields LLC
(Delaware)
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|
Excluded Subsidiary
|
|
Membership Interests
|
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Five Star Ellicott City LLC
(Delaware)
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|
Excluded Subsidiary
|
|
Membership Interests
|
|
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Five Star Foulk Manor North LLC
(Delaware)
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|
Excluded Subsidiary
|
|
Membership Interests
|
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Five Star Frederick Heartfields LLC
(Delaware)
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|
Excluded Subsidiary
|
|
Membership Interests
|
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Five Star Gables LLC (Delaware)
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|
Excluded Subsidiary
|
|
Membership Interests
|
|
|
|
|
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Five Star Insurance, Inc.
(Maryland)
|
|
Excluded Subsidiary
|
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Common Stock
|
|
|
|
|
|
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Five Star Lincoln Heights LLC
(Delaware)
|
|
Excluded Subsidiary
|
|
Membership Interests
|
|
|
|
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Five Star Knightsbridge LLC
(Delaware)
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|
Excluded Subsidiary
|
|
Membership Interests
|
|
|
|
|
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Five Star MD Homes LLC (Delaware)
|
|
|
|
Membership Interests
|
|
|
|
|
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Five Star Memorial Woods LLC
(Delaware)
|
|
Excluded Subsidiary
|
|
Membership Interests
|
|
|
|
|
|
|
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Five Star Montebello LLC (Delaware)
|
|
Excluded Subsidiary
|
|
Membership Interests
|
|
|
|
|
|
|
|
Five Star Morningside Bellgrade LLC
(Delaware)
|
|
Excluded Subsidiary
|
|
Membership Interests
|
|
|
|
|
|
|
|
Five Star Morningside Charlottesville LLC
(Delaware)
|
|
Excluded Subsidiary
|
|
Membership Interests
|
|
|
|
|
|
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Five Star Newport News LLC (Delaware)
|
|
Excluded Subsidiary
|
|
Membership Interests
|
|
|
|
|
|
|
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Five Star Northshore LLC (Delaware)
|
|
Excluded Subsidiary
|
|
Membership Interests
|
|
|
|
|
|
|
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Five Star Overland Park LLC
(Delaware)
|
|
Excluded Subsidiary
|
|
Membership Interests
|
|
Subsidiaries (Jurisdiction of Organization)
|
|
Provider/Material
Subsidiary and/or
Excluded
Subsidiary
|
|
Equity Interest
|
|
|
|
|
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|
|
Five Star Procurement Group Trust
(Maryland)
|
|
|
|
Shares of Beneficial Interest
|
|
|
|
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|
|
Five Star Quality Care Trust
(Maryland)
|
|
|
|
Shares of Beneficial Interest
|
|
|
|
|
|
|
|
Five Star Quality Care-Ainsworth, LLC
(Delaware)
|
|
|
|
Membership Interests
|
|
|
|
|
|
|
|
Five Star Quality Care-Ashland, LLC
(Delaware)
|
|
|
|
Membership Interests
|
|
|
|
|
|
|
|
Five Star Quality Care-AZ, LLC
(Delaware)
|
|
Provider
|
|
Membership Interests
|
|
|
|
|
|
|
|
Five Star Quality Care-Blue Hill, LLC
(Delaware)
|
|
|
|
Membership Interests
|
|
|
|
|
|
|
|
Five Star Quality Care-CA II, Inc.
(Maryland)
|
|
|
|
Common Stock
|
|
|
|
|
|
|
|
Five Star Quality Care-CA II, LLC
(Delaware)
|
|
Provider
|
|
Membership Interests
|
|
|
|
|
|
|
|
Five Star Quality Care-CA, Inc.
(Delaware)
|
|
|
|
Common Stock
|
|
|
|
|
|
|
|
Five Star Quality Care-CA, LLC
(Delaware)
|
|
Provider, Material Subsidiary
|
|
Membership interest
|
|
|
|
|
|
|
|
Five Star Quality Care-Central City, LLC
(Delaware)
|
|
|
|
Membership Interests
|
|
|
|
|
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|
|
Five Star Quality Care-CO, Inc.
(Maryland)
|
|
|
|
Common Stock
|
|
|
|
|
|
|
|
Five Star Quality Care-Colorado, LLC
(Delaware)
|
|
Provider, Material Subsidiary
|
|
Membership Interests
|
|
|
|
|
|
|
|
Five Star Quality Care-Columbus, LLC
(Delaware)
|
|
|
|
Membership Interests
|
|
|
|
|
|
|
|
Five Star Quality Care-CT, LLC
(Delaware)
|
|
|
|
Membership Interests
|
|
|
|
|
|
|
|
Five Star Quality Care-Edgar, LLC
(Delaware)
|
|
|
|
Membership Interests
|
|
|
|
|
|
|
|
Five Star Quality Care-Exeter, LLC
(Delaware)
|
|
|
|
Membership Interests
|
|
|
|
|
|
|
|
Five Star Quality Care-Farmington, LLC
(Delaware)
|
|
Excluded Subsidiary
|
|
Membership Interests
|
