Exhibit 10.39
PORTFOLIO DIVESTITURE AGREEMENT
This Portfolio Divestiture Agreement ("Agreement") is made effective as
of March 20, 2001 by and among the following:
o HARLINGEN RETIREMENT, LC, a limited liability company
organized under the laws of the State of Texas ("Harlingen"); and
o RESIDENTIAL HEALTHCARE PROPERTIES OF TEXAS, INC., a
corporation organized under the laws of the State of Texas ("RHP of Texas"); and
o ROSWELL RETIREMENT, LTD. Co., a limited liability company
organized under the laws of the State of New Mexico ("Roswell"); and
o VILLA RESIDENTIAL CARE HOMES-OAK PARK, L.P., a limited
partnership organized under the laws of the State of Texas ("Villa" and with
Harlingen, RHP of Texas and Roswell, sometimes referred to herein, individually
and collectively, as "Obligor"); and
o GREENBRIAR CORPORATION, INC., a corporation organized under
the laws of the State of Nevada ("Greenbriar"); and
o kellway corporation, a corporation organized under the laws
of the State of Texas ("Kellway"); and
o RESIDENTIAL HEALTHCARE PROPERTIES, INC., a corporation
organized under the laws of the State of Nevada ("RHP"); and
o VILLA RESIDENTIAL CARE HOMES, INC., a corporation organized
under the laws of the State of Texas ("VRCH"); and
o WEDGWOOD RETIREMENT INNS, INC., a corporation organized
under the laws of the State of Washington ("Wedgwood" and with Greenbriar,
Kellway, RHP and VRCH sometimes referred to herein, individually and
collectively, as "Guarantor"), each of the above having its chief executive
office at 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000; and
o HEALTH CARE REIT, INC., a corporation organized under the
laws of the State of Delaware ("HCN"); and
o HCRI Texas Properties, Ltd., a limited partnership organized
under the laws of the State of Texas ("HCRI Texas" and, individually and
collectively with HCN "HCRI"), each of HCN and HCRI Texas having its chief
executive office at Xxx XxxXxxx, Xxxxx 0000, X.X. Xxx 0000, Xxxxxx, Xxxx
00000-0000.
RECITALS
A. HCRI and certain of the Obligors entered into a certain
Loan Agreement and certain Lease Agreements as identified on Exhibit A hereto
("Financing Agreements"). Under the terms of the Financing Agreements, HCRI
granted to Obligor loan or lease financing for the properties (the "Financed
Properties") as identified on Exhibit A hereto. For purposes hereof, those
Financed Properties that are subject to a Lease Agreement are sometimes referred
to herein as "Leased Properties" and the Financed Property that is subject to a
Loan Agreement is sometimes referred to herein as "Mortgaged Property". For
purposes hereof, "Financing Documents" means, collectively, the "Loan Documents"
and "Lease Documents" as defined in the Financing Agreements.
B. Each Obligor is currently an Affiliate of Greenbriar.
C. Any capitalized term that is not defined herein shall have
the meaning set forth in the respective Loan Agreement or Lease Agreement, as
applicable.
D. Each Guarantor has guaranteed the obligations of each
Obligor under each Loan Agreement and Lease Agreement pursuant to one or more
Unconditional and Continuing Guaranties (individually and collectively, the
"Guaranty").
E. HCRI and Obligor, with the consent of Guarantor, have
reached an agreement pursuant to which HCRI agreed to the divestiture by Obligor
of the Financed Properties under certain circumstances.
F. HCRI and Obligor, with the consent of Guarantor, desire to
enter this Agreement in order to implement the divestiture agreement.
NOW, THEREFORE, in consideration of the agreements set forth herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by all parties, and intending to be legally bound, each
party agrees as follows:
1. Right to Prepay. Subject to the terms of this Agreement,
Obligor may prepay its obligations to HCRI under the Financing Agreements (the
"Prepayable Obligations") during the period from the date hereof until and
including December 31, 2001 (the "Prepayment Period").
1.1 General. Subject to the terms hereof, on or
before April 30, 2001, Obligor shall on the same day [i] purchase from HCRI The
Palm House and Oak Park Retirement Center; and [ii] prepay to HCRI the loan
secured by the Mortgaged Property, being all of the Financed Properties in
Tranche 1. Subject to the terms hereof, any Obligor may, during the Prepayment
Period, on the same day purchase from HCRI both of the Leased Properties (the
whole of each Leased Property, but not any part of a Leased Property) in Tranche
2, provided that all of the Financed Properties in Tranche 1 shall be refinanced
or prepaid prior to any of the Financed Properties in Tranche 2. Obligor shall
make a good faith effort to prepay all of the Prepayable Obligations on or
before the end of the Prepayment Period.
1.2 Tranche 1 Extension. In the event all of the
Financed Properties in Tranche 1 are not closed by April 30, 2001, Obligor can
elect to [i] terminate this Agreement or [ii] pay to HCRI the sum of Fifty
Thousand Dollars ($50,000.00) ("Extension Payment") to extend the closing date
for the Tranche 1 Financed Properties to May 31, 2001. If Obligor pays to HCRI
the Extension Payment to extend the closing date for the Tranche 1 Financed
Properties to May 31, 2001, and then does not close all of the Tranche 1
Financed Properties by May 31, 2001, HCRI or Obligor has the right to terminate
this Agreement. If this Agreement is so terminated, HCRI shall retain the
Extension Payment and the Deposit, as hereinafter defined, as liquidated
damages.
1.3 Harlingen Restriction. Obligor acknowledges that
Camelot Retirement of Harlingen ("Camelot Retirement") and Greenbriar at Camelot
("Camelot Assisted Living") are integrated facilities. Obligor agrees that one
of the conditions to HCRI's consent to refinance Camelot Retirement prior to
Camelot Assisted Living is the agreement of Obligor that Obligor shall not sell
Camelot Retirement without HCRI's prior written consent until after Obligor has
acquired Camelot Assisted Living. HCRI agrees that it's consent shall be
dependant upon Obligor [i] demonstrating to HCRI that Camelot Assisted Living
can operate independently of Camelot Retirement and [ii] delivering to HCRI a
Letter of Credit, which complies with the terms and conditions for Letters of
Credit set forth in the Financing Agreements, in the amount equal to fifty
percent (50%) of the sale proceeds from the sale of Camelot Retirement. At the
time of the prepayment of the loan serviced by the Mortgaged Property, Obligor
shall grant HCRI a lien on the Mortgaged Property to secure Obligor's
obligations under this ss.1.3, said Deed of Trust to contain terms and
conditions mutually agreeable to Obligor and HCRI.
1.4 Conditions Precedent to Right to Prepay.
Obligor's right to prepay the Prepayable Obligations is subject to satisfaction
of the following conditions on or before the Closing, as hereinafter defined, of
any such prepayment.
(a) Notice. HCRI must receive from Obligor a
written notice of its intent to prepay the Prepayable Obligations at least 15
days prior to the closing date for either Tranche or the expiration of the
Prepayment Period. Notwithstanding the foregoing, for a prepayment to occur
after December 15, 2001, Obligor may give such notice at any time during
December 2001. Obligor shall use its best efforts to maximize the length of any
notice given in December 2001.
(b) Sequence of Prepayment. The sequence of
prepayment is specifically set forth herein. In the event Obligor proposes a
different sequence, HCRI shall, within its absolute and sole discretion,
determine the sequence of prepayment, based upon its evaluation of the remaining
Financed Properties, including debt service coverage and census, but in no event
shall the Financed Property identified on Exhibit A as Oak Park Retirement
Center be purchased prior to the Obligor having [i] purchased the Financed
Property identified on Exhibit A as The Palm House and [ii] prepaid the loan
secured by the Mortgaged Property.
1.5 Prepayment Amount.
(a) General. The amount of the Prepayable
Obligations for each Financed Property (the "Prepayment Amount") shall equal:
(i) With respect to each Leased
Property, (a) the applicable amount set forth on Exhibit B as of the date
specified for each of the Leased Properties ("Base Amount"), plus (b) any Lease
Advances made by HCRI after the date hereof, plus (c) accrued and unpaid Rent,
plus (d) Termination Fee, as defined in ss.1.5(b), plus (e) HCRI's
"out-of-pocket expenses" as defined in ss.1.5(d).
(ii) With respect to the Mortgaged
Property, (a) the applicable amount set forth on Exhibit B as of the date
specified for the Mortgaged Property, plus (b) any Loan Advances made by HCRI
after the date hereof, plus (c) accrued and unpaid interest, plus (d) HCRI's
"out-of-pocket expenses" as defined in ss.1.5(d), less (e) any previously paid
Paydown Amount (as defined in ss.1.5(e) below).
(b) Termination Fee. Obligor shall pay a
termination fee ("Termination Fee") as set forth below upon the exercise of an
option to purchase a Leased Property and prepay the Prepayable Obligation in the
following amount:
(i) With respect to each Financed
Property in Tranche 1, as identified on Exhibit A, an amount equal to one
percent (1%) of the Base Amount if the Prepayment Amount is paid on or before
March 31, 2001, an amount equal to one and one-half percent (1 1/2%) of the Base
Amount if the Prepayment Amount is paid after March 31, 2001 but on or before
April 30, 2001, an amount equal to two percent (2%) of the Base Amount if the
Prepayment Amount is paid after April 30, 2001 but on or before June 30, 2001,
and an amount equal to three percent (3%) of the Base Amount if the Prepayment
Amount is paid after June 30, 2001 but on or before December 31, 2001.
(ii) With respect to each Financed
Property in Tranche 2, as identified on Exhibit A, an amount equal to two
percent (2%) of the Base Amount if the Prepayment Amount is paid after January
1, 2001 but on or before June 30, 2001, and an amount equal to three percent
(3%) of the Base Amount if the Prepayment Amount is paid after June 30, 2001 but
on or before December 31, 2001.
(c) Other Closing Expenses. Obligor shall
pay all reasonable out-of-pocket costs in connection with this Agreement and the
arrangements outlined herein, including but not limited to legal fees and all
closing costs (including transfer taxes and conveyance fees) in connection with
the refinancing or purchase of the Financed Properties. Without limiting the
foregoing, it is agreed that HCRI shall not be responsible for any closing costs
and expenses in connection with the prepayment of the applicable Prepayable
Obligations or, as applicable, the sale of the applicable Leased Property from
HCRI to Obligor or the release of HCRI's security interest in the applicable
Mortgaged Property. HCRI shall cooperate with Obligor to minimize Obligor's
out-of-pocket costs and expenses. The legal fees of HCRI with respect to this
Agreement, but not including any subsequent transactions contemplated herein,
shall not exceed Twenty-five Thousand Dollars ($25,000.00).
(d) Out-of-Pocket Costs. Without limiting
any other provision hereof, for the purposes of this Agreement, HCRI's
"out-of-pocket expenses" shall mean HCRI's reasonable attorney fees and any
travel expenses reasonably incurred by HCRI in connection with the closing of
the purchase or refinancing of any of the Financed Properties.
(e) Paydown. Provided HCRI has agreed to the
sequence, at the time of the purchase or paydown of any one but not all of the
Financed Properties in Tranche 1, Obligor shall in addition to the Prepayment
Amount pay an additional amount equal to ten percent (10%) of the then
outstanding Lease Amount for all Financed Properties ("Paydown Amount"). The
Paydown Amount shall be applied by HCRI to the then outstanding Lease or Loan
Amounts in HCRI's sole discretion.
(f) Deposit. Obligor has on deposit with
HCRI Fifty Thousand Dollars ($50,000.00) ("Deposit"). In addition to the rights
set forth in ss.1.2, if Obligor fails to purchase or prepay all of the Financed
Properties in each of the Tranches as set forth herein, HCRI shall be entitled
to the Deposit. At the time of the sale of the last Financed Property, the
Deposit and the Extension Payment shall be applied to the Prepayment Amount.
1.6 Closing. Any prepayment of Prepayable Obligations
hereunder by Obligor shall close prior to expiration of the Prepayment Period
and on a date agreed to by HCRI and Obligor ("Closing"). At the Closing, Obligor
shall pay the Prepayment Amount, and all closing costs in immediately available
funds and HCRI shall, as applicable [i] convey title to the applicable Leased
Property to Obligor by a transferable and recordable limited or special warranty
deed and xxxx of sale; or [ii] release its security interest in the applicable
Mortgaged Property. Obligor acknowledges that the Leased Properties will be
acquired "AS IS" without any representations or warranties. Except as otherwise
provided herein, the terms and conditions set forth in the Financing Agreements
relating to the acquisition of a Leased Property shall be applicable to each
acquisition under this Agreement. If there are any discrepancies between the
applicable Financing Agreement and this Agreement, the terms and conditions of
this Agreement shall prevail.
1.7 Failure to Exercise Right to Prepay. If Obligor
for any reason does not exercise its right to prepay the Prepayable Obligations
in accordance with the terms and conditions hereof, Obligor shall be deemed to
have forfeited all right to make any such prepayment under the terms hereof and
Obligor shall pay to HCRI within 10 days following the expiration of the
Prepayment Period an amount equal to five percent (5%) of the then outstanding
Loan Amount and Lease Amount, unless this Agreement has been terminated by
Obligor pursuant to ss.1.2. Obligor acknowledges and agrees that the right to
prepay the Prepayable Obligations hereunder automatically expires at the end of
the Prepayment Period.
1.8 Financing Agreements. While this Agreement
remains in effect, the provisions of this ss.1 supersede and amend all
conflicting provisions in the Financing Agreements related to the payoff or
purchase of any of the Financed Properties. In the event all of the Financed
Properties have not been purchased or refinanced during the Prepayment Period,
the provisions of the Financing Agreements related to the payoff or purchase of
any Financed Properties shall be reinstated as if they were never superseded or
amended by this Agreement.
2. Application of Excess Funding Amounts. Obligor intends to
prepay the Prepayable Obligations in conjunction with the sale or refinancing of
the Financed Properties. To the extent there are any sale or refinancing
proceeds with respect to any Financed Property (net of closing costs) in excess
of the Prepayable Obligations with respect to such Financed Property (the
"Excess Funds"), Obligor shall, at the Closing, deliver to HCRI a Letter of
Credit equal to one-third (1/3) of such Excess Funds ("Excess Funds Letter of
Credit"). In the event all of the Financed Properties within a Tranche, as
identified on Exhibit A, have been purchased or refinanced during the Prepayment
Period, HCRI shall deliver to Obligor the Excess Funds Letter of Credit relating
to the Financed Properties in that Tranche. In the event all of the Financed
Properties within a Tranche, as identified on Exhibit A, have not been purchased
or refinanced during the Prepayment Period, HCRI shall be entitled to draw the
full amount under the Excess Funds Letter of Credit relating to the Financed
Properties in the Tranche. The Excess Funds Letter of Credit shall comply with
the terms and conditions applicable to letters of credit set forth in the
Financing Agreements.
3. Letters of Credit.
3.1 Increases upon Certain Prepayments. The amount of
each Letter of Credit (as defined in the Financing Agreements) shall be
increased or decreased from time to time upon any payment of any Prepayable
Obligations so as to equal in the aggregate ten percent (10%) of the then
outstanding Loan Amount or Lease Amount, as applicable. Upon the repayment in
full of all Prepayable Obligations with respect to any Financing Agreement, the
Letter of Credit as defined in such Financing Agreement, shall be released by
HCRI. The Letters of Credit equal to the aggregate of ten percent (10%) shall be
delivered at the time of Closing of a Financed Property.
4. Monetary Obligations. All monetary obligations of Obligor
under this Agreement are deemed to be monetary obligations under the respective
Financing Agreement.
5. Reaffirmation. Each Obligor reaffirms the Financing
Agreements and all other Financing Documents as amended hereby. Each Guarantor
hereby reaffirms its obligations under its respective Guaranty.
6. Events of Default. The failure of any Obligor or any
Guarantor to perform any covenant or to conform to any warranty or
representation under this Agreement, and such failure continues for more than 10
days after written notice thereof is given to Obligor by HCRI, or the occurrence
of an "Event of Default" (after taking into account any applicable notice or
cure periods) as defined in any of the Financing Documents or any Guaranty (as
any of the same may be modified by this Agreement), will constitute an immediate
event of default under this Agreement and each Financing Agreement ("Event of
Default"). The occurrence of any Event of Default (after taking into account
applicable notice or cure periods as provided for above) shall constitute an
immediate default and any additional applicable notice, grace or cure period
provided in the respective Financing Document or Guaranty is hereby waived by
Obligor and each Guarantor.
7. Cumulative Rights and Remedies. Upon the occurrence of any
Event of Default as defined herein and at any time thereafter until HCRI waives
the default in writing or acknowledges cure of the default in writing, at HCRI's
option, without declaration, notice of dishonor, protest, noting for protest, or
any other notice, or demand of any kind (all of which Obligor hereby waives),
HCRI may exercise any and all rights and remedies provided in any Financing
Agreement, any Financing Document or any Guaranty.
8. Construction of Rights and Remedies. This Section applies
to all rights and remedies of HCRI under this Agreement, any Financing
Agreement, any Financing Document or Guaranty or arising at law or in equity.
8.1 Cumulative. All rights and remedies are
cumulative to each other.
8.2 Consent to Remedies. Each Obligor and each
Guarantor consent to all rights and remedies of HCRI.
8.3 No Waivers. No waiver of any of HCRI's rights and
remedies under this Agreement, any Financing Document or any Guaranty shall be
effective against HCRI unless the waiver is in writing and signed by HCRI. No
delay or omission by HCRI in exercising any right or remedy shall operate as a
waiver of the right or remedy or any other right or remedy. A waiver on any one
occasion shall not be construed as a bar to or a waiver of any right or remedy
on any other occasion. Each right and remedy of HCRI may be exercised
individually or concurrently with others and as often and in such order as HCRI
may choose.
8.4 No Obligation to Exercise Remedies. HCRI is not
required to commence any action or proceeding or to pursue any remedy against
any Obligor, Guarantor or any successor in interest.
8.5 No Marshaling. HCRI may proceed, at its election,
against all security for the Prepayable Obligations or against any item or items
of such security from time to time, and no action against any item or items of
security shall bar subsequent actions against any item or items of security.
9. Release of HCRI. As additional consideration for HCRI's
entering into this Agreement, each Obligor and Guarantor jointly and severally
releases and forever discharges HCRI and any of HCRI's officers, directors,
agents, employees, accountants, attorneys and representatives, as well as the
respective heirs, personal representatives, successors, and assigns of any or
all of them (collectively called the "HCRI Group") from any and all claims,
demands, debts, actions, causes of action, suits, contracts, agreements,
obligations, accounts, defenses, offsets and liabilities of any kind or
character whatsoever, known or unknown, suspected or unsuspected, in contract or
in tort, at law or in equity, including without limitation, such claims and
defenses as fraud, mistake, duress, and usury, any Obligor or Guarantor ever
had, now have, or might hereafter have (to the extent relating to periods prior
to the date hereof) against the HCRI Group, jointly or severally, for or by
reason of any matter, cause or thing whatsoever which relates to or arises from,
in whole or in part, directly or indirectly, [i] the Prepayable Obligations;
[ii] any Financing Agreement; [iii] any Guaranty; and [iv] any other agreement,
document or instrument relating to or securing any of the foregoing. Each
Obligor and Guarantor agrees that none of them shall commence, join, prosecute,
or participate in any suit or other proceeding in a position that is adverse to
the HCRI Group arising directly or indirectly from any of the foregoing matters.
The provisions of this paragraph shall survive the termination of this
Agreement.
10. Voluntary Agreement. Each Obligor and Guarantor represents
and warrants that [i] each is represented by legal counsel (or has knowingly
declined legal counsel) in regard to the transactions provided for by this
Agreement and that such counsel has explained to each of them the significance
of the terms, and the meaning and effect of this Agreement and all other related
documents; [ii] each is fully aware and clearly understands all of the terms and
provisions contained in this Agreement and in all other related documents; [iii]
each has voluntarily, with full knowledge and without coercion or duress of any
kind entered into this Agreement and the documents executed in connection with
this Agreement; [iv] each is not relying on any representations either written
or oral, express or implied, made to any of them by HCRI other than as set forth
in this Agreement; [v] this Agreement essentially reflects a proposal each
Obligor made to HCRI on its own initiative; and [vi] the consideration received
by each Obligor and Guarantor to enter into this Agreement and the arrangement
contemplated by this Agreement has been actual and sufficient.
11. Bankruptcy Proceedings. If any Obligor files a petition in
bankruptcy or is the subject of any petition under Title 11 of the U.S. Code as
amended, such Obligor shall assume or reject its respective Financing
Agreement(s) within 60 days of the petition date.
12. Waivers. Obligor waives [i] any notice required by statute
or other law as a condition to bringing an action for possession of, or eviction
from, any of the Financed Property; [ii] any right of re-entry or repossession
with respect to the Financed Property; [iii] any right to a trial by jury in any
action or proceeding arising out of or relating to this Agreement, any Financing
Agreement, any Financing Document or any Guaranty; [iv] any objections,
defenses, claims or rights with respect to the exercise by HCRI of any rights or
remedies under this Agreement, any Financing Agreement, any Financing Document
or any Guaranty; [v] all presentments, demands for performance, notices of
nonperformance, protest, notices of protest, notices of dishonor and any other
notice or demand of any kind arising under or relating to this Agreement, any
Financing Agreement, any Financing Document or any Guaranty; and [vi] all
notices of the existence, creation or incurring of any obligation or advance
under this Agreement, any Financing Agreement, any Financing Document or any
Guaranty before or after this date.
13. Miscellaneous.
13.1 Performance Obligations. Each Obligor and
Guarantor shall perform their respective obligations and conform to all
representations and warranties under the Financing Agreements, the Financing
Documents, the Guaranties and this Agreement (collectively, the "Obligations").
13.2 Term of Agreement. Unless otherwise terminated
by a writing signed by all parties, this Agreement shall continue in full force
and effect until the Obligations have been paid or satisfied in full.
13.3 Governing Law. The laws of the State of Ohio
shall govern the construction of this Agreement and the rights and duties of the
parties hereunder. If any provision of this Agreement, or the application
thereof to anyone or any circumstances, shall be adjudged invalid or
unenforceable to any extent, the application of the remainder of the provisions
of this Agreement shall not be affected thereby. Each provision of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
13.4 Time is of the Essence. Time is of the essence
in the performance of this Agreement.
13.5 Amendment. This Agreement may be amended only by
a writing signed by all parties.
13.6 Waivers Concerning Obligor and Guarantors. None
of the following will be a course of dealing, estoppel, waiver, or implied
amendment on which any party to this Agreement, a Financing Agreement, Guaranty
or any Financing Document may rely: [i] HCRI's acceptance of one or more late
payments or partial performance of this Agreement, a Financing Agreement,
Guaranty or any Financing Document; [ii] HCRI's current forbearance from
exercising any right or remedy under this Agreement, a Financing Agreement,
Guaranty or any Financing Document; or [iii] HCRI's forbearance from exercising
any right or remedy under this Agreement, a Financing Agreement, Guaranty or any
Financing Document on any one or more occasions.
Obligor and Guarantors [i] warrant that each has received good
and valuable consideration for executing this Agreement; and [ii] warrant that
none has executed this Agreement in reliance upon the existence of the security
for or guaranty or promise of the performance of this Agreement or any financial
information or valuation information supplied by HCRI.
No obligations of any party to this Agreement shall be
affected by [i] any default in any Financing Agreement, Financing Document or
Guaranty; [ii] the unenforceability of or defect in any Financing Agreement,
Financing Document or Guaranty; [iii] any decline in the value of any interest
in any property which is the subject of this Agreement or any Financing
Agreement, Financing Document or Guaranty; or [iv] the death, incompetence,
insolvency, dissolution, liquidation or winding up of affairs of any party to
this Agreement or any Financing Agreement, Financing Document or Guaranty or the
start of insolvency proceedings by or against any such party. Each party to this
Agreement, each Financing Agreement, each Financing Document, and each Guaranty
waives all suretyship and other similar defenses. Obligor and Guarantors waive
all rights of subrogation arising out of this Agreement or any Financing
Agreement, Financing Document or Guaranty, and no other party to any Financing
Agreement or Financing Document may enforce any right of subrogation or
contribution unless and until all obligations of Obligor to HCRI are paid in
full.
Obligor and Guarantor [i] waive notice of all advances against
the loans and leases made subject to the Financing Agreements before this date;
and [ii] waive protest and all other notices relating to any default in any
Financing Agreement or Financing Document.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be executed as of the date set forth at the beginning.
Signed and acknowledged in the
presence of: HARLINGEN RETIREMENT, LC
By: Wedgwood Retirement Inns, Inc.
Managing Member
Signature /s/ Xxxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxxxx
-------------------------- --------------------------------
Print Name Xxxxxx Xxxxxx
------------------------
Title: President
------------------------
Signature /s/ Xxxxxx Xxxx
--------------------------
Print Name Xxxxxx Xxxx
-------------------------
RESIDENTIAL HEALTHCARE
PROPERTIES OF TEXAS, INC.
Signature /s/ Xxxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxxxx
-------------------------- --------------------------------
Print Name Xxxxxx Xxxxxx
------------------------
Title: President
------------------------
Signature /s/ Xxxxxx Xxxx
--------------------------
Print Name Xxxxxx Xxxx
-------------------------
ROSWELL RETIREMENT, LTD. CO.
By: Wedgwood Retirement Inns, Inc.
Managing Member
Signature /s/ Xxxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxxxx
-------------------------- --------------------------------
Print Name Xxxxxx Xxxxxx
------------------------
Title: President
------------------------
Signature /s/ Xxxxxx Xxxx
--------------------------
Print Name Xxxxxx Xxxx
-------------------------
VILLA RESIDENTIAL CARE
HOMES-OAK PARK, L.P.
By: Kellway Corporation
Managing General Partner
Signature /s/ Xxxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxxxx
-------------------------- --------------------------------
Print Name Xxxxxx Xxxxxx
------------------------
Title: President
------------------------
Signature /s/ Xxxxxx Xxxx
--------------------------
Print Name Xxxxxx Xxxx
-------------------------
HEALTH CARE REIT, INC.
Signature /s/ Xxxx X. Xxxxx By: /s/ Xxxxxx Xxxxxxx
-------------------------- --------------------------------
Print Name Xxxx X. Xxxxx
-------------------------
Title: Chairman, CEO & President
--------------------------
Signature /s/ Xxxxxxxx X. Xxxxxxxx
--------------------------
Print Name Xxxxxxxx X. Xxxxxxxx
-------------------------
HCRI TEXAS PROPERTIES, LTD.
By: Health Care REIT, Inc.
General Partner
Signature /s/ Xxxx X. Xxxxx By: /s/ Xxxxxx Xxxxxxx
-------------------------- --------------------------------
Print Name Xxxx X. Xxxxx
-------------------------
Title: Chairman, CEO & President
-------------------------
Signature /s/ Xxxxxxxx X. Xxxxxxxx
--------------------------
Print Name Xxxxxxxx X. Xxxxxxxx
-------------------------
ACKNOWLEDGMENT OF GUARANTORS
The undersigned Guarantors hereby [i] consent to the foregoing
Portfolio Divestiture Agreement and Amendment of Lease and Loan Documents
("Agreement"); [ii] agree to be bound by the terms and provisions of the
Agreement to the extent applicable to Guarantor; [iii] affirm each Guaranty of
each Guarantor in favor of HCRI which shall remain in full force and effect; and
[iv] waive any suretyship defenses arising in connection with the Agreement,
effective as of the date first set forth above.
GREENBRIAR CORPORATION, INC.
By: /s/Xxxx X. Xxxxxxxx
------------------------------------
Title: Executive Vice President
----------------------------
KELLWAY CORPORATION
By: /s/Xxxx X. Xxxxxxxx
------------------------------------
Title: President
----------------------------
RESIDENTIAL HEALTHCARE PROPERTIES, INC.
By: /s/Xxxx X. Xxxxxxxx
------------------------------------
Title: President
----------------------------
VILLA RESIDENTIAL CARE HOMES, INC.
By: /s/Xxxx X. Xxxxxxxx
------------------------------------
Title: President
----------------------------
WEDGWOOD RETIREMENT INNS, INC.
By: /s/Xxxx X. Xxxxxxxx
------------------------------------
Title: President
----------------------------
EXHIBIT A
DESCRIPTION OF FINANCING AGREEMENTS
AND FINANCED PROPERTIES
---------------------------------------------------------------------------------------------------------
TRANCHE 1
---------------------------------------------------------------------------------------------------------
LANDLORD TENANT/MORTGAGOR TRANSACTION TYPE FINANCED PROPERTY
--------------------------- ---------------------------- ---------------- -------------------------------
HCRI Texas Properties, Ltd. Residential Healthcare Lease The Palm House
Properties of Texas, Inc. 0000 Xxxxxx Xxxx.
Xxxx Xxxxx, XX
County: Tarrant
--------------------------- ---------------------------- ---------------- -------------------------------
HCRI Texas Properties, Ltd. Harlingen Retirement, LC Loan Camelot Retirement of Harlingen
0000 Xxxxxxx Xx.
Xxxxxxxxx, XX
County: Cameron
--------------------------- ---------------------------- ---------------- -------------------------------
HCRI Texas Properties, Ltd. Villa Residential Care Lease Oak Park Retirement Center
Homes-Oak Park, L.P. 0000 Xxxxxx Xxxxx Xx.
Xxxxxxxx, XX
County: Tarrant
--------------------------- ---------------------------- ---------------- -------------------------------
TRANCHE 2
---------------------------------------------------------------------------------------------------------
LANDLORD TENANT/MORTGAGOR TRANSACTION TYPE FINANCED PROPERTY
--------------------------- ---------------------------- ---------------- -------------------------------
Health Care REIT, Inc. Roswell Retirement, Ltd. Co. Lease La Villa
0000 X. Xxxxxxxxxxxx Xxx.
Xxxxxxx, XX
Xxxxxx: Xxxxxx
--------------------------- ---------------------------- ---------------- -------------------------------
HCRI Texas Properties, Ltd. Harlingen Retirement, LC Lease Greenbriar at Camelot
000 Xxxxxxx Xx.
Xxxxxxxxx, XX
County: Cameron
---------------------------------------------------------------------------------------------------------
EXHIBIT B
BASE AMOUNTS
--------------------------------------------------------------------------------
FACILITY 1ST QUARTER 2ND QUARTER 3RD QUARTER 4TH QUARTER
2001 2001 2001 2001
------------------------------- ----------- ------------ ----------- -----------
Oak Park Retirement Center 8,035,032 7,988,808 7,942,582 7,896,357
------------------------------- ----------- ------------ ----------- -----------
La Villa 5,306,651 5,278,254 5,249,858 5,221,461
------------------------------- ----------- ------------ ----------- -----------
The Palm House 4,045,770 4,017,321 3,988,872 3,960,423
------------------------------- ----------- ------------ ----------- -----------
Camelot Retirement of Harlingen 4,402,429 4,390,679 4,378,592 4,366,157
------------------------------- ----------- ------------ ----------- -----------
Greenbriar at Camelot 5,728,024 5,700,608 5,673,193 5,645,777
--------------------------------------------------------------------------------
(g)
