Exhibit 99.12
CONFIRMATION OF GUARANTEES AND
CONFIRMATION OF AND AMENDMENT TO SECURITY AGREEMENTS
THIS CONFIRMATION OF GUARANTEES AND CONFIRMATION OF AND AMENDMENT TO SECURITY AGREEMENTS (this “Confirmation”) is made as of May 1, 2011 by and among FIVE STAR QUALITY CARE, INC., a Maryland corporation (“Guarantor”), FIVE STAR QUALITY CARE TRUST, a Maryland business trust, FIVE STAR QUALITY CARE — NS TENANT, LLC, a Maryland limited liability company, FS TENANT HOLDING COMPANY TRUST, a Maryland business trust (jointly and severally, “Tenant”), each of the parties identified on the signature page hereof as a subtenant (collectively, “Subtenants”) and each of the parties identified on the signature page hereof as a landlord (collectively, “Landlord”).
W I T N E S S E T H :
WHEREAS, pursuant to the terms of that certain Amended and Restated Master Lease Agreement (Lease No. 4), dated as of August 4, 2009 (as the same may be amended, restated or otherwise modified from time to time, “Amended Lease No. 4”), Landlord leases to Tenant, and Tenant leases from Landlord, certain property, all as more particularly described in Amended Lease No. 4; and
WHEREAS, the payment and performance of all of the obligations of Tenant with respect to Amended Lease No. 4 are guaranteed by that certain Amended and Restated Guaranty Agreement (Lease No. 4), dated as of August 4, 2009, made by Guarantor for the benefit of Landlord (as the same may be amended, restated or otherwise modified from time to time, the “Parent Guarantee”) and that certain Amended and Restated Subtenant Guaranty Agreement (Lease No. 4), dated as of August 4, 2009, made by Subtenants for the benefit of Landlord (as the same may be amended, restated or otherwise modified from time to time, the “Subtenant Guarantee”; and, together with the Parent Guarantee, collectively, the “Guarantees”); and
WHEREAS, the payment and performance of all of the obligations of Tenant with respect to Amended Lease No. 4 are further secured by (i) that certain Amended and Restated Subtenant Security Agreement (Lease No. 4), dated as of August 4, 2009, by and among Subtenants and Landlord (as the same may be amended, restated or otherwise modified or confirmed from time to time, the “Subtenant Security Agreement”); and (ii) that certain Amended and Restated Security Agreement (Lease No. 4), dated as of August 4, 2009, by and among Tenant and Landlord (as the same may be amended, restated or otherwise modified or confirmed from time to time, the “Tenant Security Agreement”;
and together with the Subtenant Security Agreement, collectively, the “Security Agreements”); and
WHEREAS, pursuant to that certain Partial Termination of and Second Amendment to Amended and Restated Master Lease Agreement (Lease No. 4), dated as of the date hereof (the “Second Amendment”), Amended Lease No. 4 is being terminated with respect to the properties known as (i) the Southland Care Center located at 606 Simmons Street, Dublin, Georgia (the “Southland Property”) and (ii) the Autumn Breeze Healthcare Center located at 1480 Sandtown Road, Marietta, Georgia (the “Autumn Breeze Property”), all as more particularly described in the Second Amendment; and
WHEREAS, in connection with the partial termination of Amended Lease No. 4 with respect to the Southland Property and the Autumn Breeze Property pursuant to the Second Amendment, Five Star Quality Care Trust and Five Star Quality Care-GA, LLC are entering into that certain Partial Termination of Second Amended and Restated Sublease Agreement to reflect the termination of their sublease with respect to the Southland Property and the Autumn Breeze Property; and
WHEREAS, in connection with the foregoing, and as a condition precedent to the execution of the Second Amendment by Landlord, Landlord has required that the parties hereto confirm that the Guarantees and the Security Agreements remain in full force and effect and apply to Amended Lease No. 4 as amended by the Second Amendment;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the mutual receipt and legal sufficiency of which are hereby acknowledged, the parties hereto hereby agree, effective as of the date hereof, as follows:
1. Amendment of Subtenant Security Agreement. The Subtenant Security Agreement is hereby amended by (a) replacing Exhibit A attached thereto with Schedule 1 attached hereto; and (b) replacing Schedule 2 attached thereto with Schedule 2 attached hereto.
2. Amendment of Tenant Security Agreement. The Tenant Security Agreement is hereby amended by replacing Schedule 2 attached thereto with Schedule 3 attached hereto.
3. Confirmation of Guarantees and Security Agreements. Each of the parties to the Guarantees and the Security Agreements hereby confirms that all references in the Guarantees
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and the Security Agreements to “Amended Lease No. 4” shall refer to Amended Lease No. 4 as amended by the Second Amendment, and the Guarantees and the Security Agreements, as amended and confirmed hereby, are hereby ratified and confirmed in all respects.
4. No Impairment, Etc. The obligations, covenants, agreements and duties of the parties under the Guarantees and Security Agreements shall not be impaired in any manner by the execution and delivery of the Second Amendment, and in no event shall any ratification or confirmation of such Guarantees or such Security Agreements, or the obligations, covenants, agreements and the duties of the parties under the Guarantees or the Security Agreements, including, without limitation, this Confirmation, be required in connection with any such amendment, change or modification.
[Remainder of page left intentionally blank.]
[Signature pages follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this Confirmation to be duly executed, as a sealed instrument, as of the date first set forth above.
| GUARANTOR: |
| |
| FIVE STAR QUALITY CARE, INC. |
| |
| |
| By: | /s/ Bruce J. Mackey Jr. |
| | Bruce J. Mackey Jr. |
| | President |
| |
| |
| TENANT: |
| |
| FIVE STAR QUALITY CARE – |
| NS TENANT, LLC, |
| FIVE STAR QUALITY CARE TRUST, and |
| FS TENANT HOLDING COMPANY TRUST |
| |
| |
| By: | /s/ Bruce J. Mackey Jr. |
| | Bruce J. Mackey Jr. |
| | President of each of the
foregoing entities |
| SUBTENANTS: |
| |
| FIVE STAR QUALITY CARE-COLORADO, LLC, |
| FIVE STAR QUALITY CARE-FL, LLC, |
| FIVE STAR QUALITY CARE-GA, LLC, |
| FIVE STAR QUALITY CARE-GHV, LLC, |
| FIVE STAR QUALITY CARE-IA, LLC, |
| FIVE STAR QUALITY CARE-IL, LLC, |
| FIVE STAR QUALITY CARE-KS, LLC, |
| FIVE STAR QUALITY CARE-NE, LLC, |
| FIVE STAR QUALITY CARE-NJ, LLC, |
| FIVE STAR QUALITY CARE-VA, LLC, |
| FIVE STAR QUALITY CARE-WY, LLC, |
| FS TENANT POOL I TRUST, and |
| STOCKTON HERITAGE PARTNERS, LLC |
| |
| |
| By: | /s/ Bruce J. Mackey Jr. |
| | Bruce J. Mackey Jr. |
| | President of each of the |
| | foregoing entities |
| | |
| MORNINGSIDE OF GREENWOOD, L.P., and MORNINGSIDE OF KENTUCKY, LIMITED PARTNERSHIP |
| |
| By: | LifeTrust America, Inc., |
| | General Partner of each of
the foregoing entities |
| | |
| | |
| | By: | /s/ Bruce J. Mackey Jr. |
| | | Bruce J. Mackey Jr. |
| | | President |
| | | |
| MORNINGSIDE OF SKIPWITH-RICHMOND, LLC |
| |
| By: | LifeTrust America, Inc., |
| | Its Member |
| | |
| | |
| | By: | /s/ Bruce J. Mackey Jr. |
| | | Bruce J. Mackey Jr. |
| | | President |
| | | | |
| LANDLORD: |
| |
| CCOP SENIOR LIVING LLC, |
| SNH CHS PROPERTIES TRUST, |
| SNH NS PROPERTIES TRUST, |
| SNH SOMERFORD PROPERTIES TRUST, |
| SNH/LTA PROPERTIES GA LLC, |
| SNH/LTA PROPERTIES TRUST, and |
| SPTIHS PROPERTIES TRUST |
| |
| |
| By: | /s/ David J. Hegarty |
| | David J. Hegarty |
| | President of each of the foregoing entities |
SCHEDULE 1
EXHIBIT A
SUBLEASES
1. Sublease Agreement, dated December 31, 2001, by and between Five Star Quality Care Trust, a Maryland business trust, as sublandlord, and Five Star Quality Care-Colorado, LLC, Delaware limited liability company, as subtenant, as amended by that certain Letter Agreement dated March 1, 2004 by and among Five Star Quality Care Trust, as sublandlord, and Certain Affiliates of Five Star Quality Care, Inc., as subtenants, as further amended by that certain Letter Agreement dated as of June 30, 2008, by and among Five Star Quality Care Trust, as sublandlord, and Certain Affiliates of Five Star Quality Care, Inc., as subtenants, as further amended by that certain Letter Agreement dated August 4, 2009 by and among Five Star Quality Care Trust, as sublandlord, and Certain Affiliates of Five Star Quality Care, Inc., as subtenants.
2. Sublease Agreement, dated December 31, 2001, by and between Five Star Quality Care Trust, a Maryland business trust, as sublandlord, and Five Star Quality Care-WY, LLC, a Delaware limited liability company, as subtenant, as amended by that certain Letter Agreement dated March 1, 2004 by and among Five Star Quality Care Trust, as sublandlord, and Certain Affiliates of Five Star Quality Care, Inc., as subtenants, as further amended by that certain Letter Agreement dated June 30, 2008, by and among Five Star Quality Care Trust, as sublandlord, and Certain Affiliates of Five Star Quality Care, Inc., as subtenants, as further amended by that certain Letter Agreement dated August 4, 2009 by and among Five Star Quality Care Trust, as sublandlord, and Certain Affiliates of Five Star Quality Care, Inc., as subtenants.
3. Sublease Agreement, dated November 19, 2004, by and between Five Star Quality Care Trust, a Maryland business trust, as sublandlord, and Morningside of Skipwith-Richmond, LLC, a Delaware limited liability company, as subtenant, as amended by that certain Letter Agreement dated June 30, 2008 by and among Five Star Quality Care Trust, as sublandlord, and Certain Affiliates of Five Star Quality Care, Inc., as subtenants, as further amended by that certain Letter Agreement dated August 4, 2009 by and among Five Star Quality Care Trust, as sublandlord, and Certain Affiliates of Five Star Quality Care, Inc., as subtenants.
4. Sublease Agreement, dated June 3, 2005, by and between Five Star Quality Care Trust, a Maryland business trust, as sublandlord, and Morningside of Greenwood, L.P., a Delaware limited partnership, as subtenant, as amended by that certain Letter Agreement dated June 30, 2008 by and among Five Star Quality Care Trust, as sublandlord, and Certain Affiliates of Five Star Quality Care, Inc., as subtenants, as further amended by that certain Letter Agreement dated August 4, 2009 by and among Five Star Quality Care Trust, as sublandlord, and Certain Affiliates of Five Star Quality Care, Inc., as subtenants.
5. Sublease Agreement, dated September 1, 2006, by and between Five Star Quality Care Trust, a Maryland business trust, as Sublandlord, and Five Star Quality Care-FL, LLC, a Delaware limited liability company, as Subtenant, as amended by that certain Letter Agreement dated June 30, 2008 by and among Five Star Quality Care Trust, as sublandlord, and Certain Affiliates of Five Star Quality Care, Inc., as subtenants, as further amended by that certain Letter Agreement dated August 4, 2009 by and among Five Star Quality Care Trust, as sublandlord, and Certain Affiliates of Five Star Quality Care, Inc., as subtenants.
6. Sublease Agreement, dated September 1, 2006, by and between Five Star Quality Care Trust, a Maryland business trust, as Sublandlord, and Five Star Quality Care-IL, LLC, a Maryland limited liability company, as Subtenant, as amended by that certain Letter Agreement dated June 30, 2008 by and among Five Star Quality Care Trust, as sublandlord, and Certain Affiliates of Five Star Quality Care, Inc., as subtenants, as further amended by that certain Letter Agreement dated August 4, 2009 by and among Five Star Quality Care Trust, as sublandlord, and Certain Affiliates of Five Star Quality Care, Inc., as subtenants.
7. Second Amended and Restated Sublease Agreement, dated November 1, 2006, by and between Five Star Quality Care Trust, a Maryland business trust, as sublandlord, and Five Star Quality Care-GA, LLC, a Delaware limited liability company, as subtenant, as amended by that certain Letter Agreement dated June 30, 2008, by and among Five Star Quality Care Trust, as sublandlord, and Certain Affiliates of Five Star Quality Care, Inc., as subtenants, as amended by that certain Letter Agreement dated August 4, 2009 by and among Five Star Quality Care Trust, as sublandlord, and Certain Affiliates of Five Star Quality Care, Inc., as subtenants, as further amended by that certain Partial Termination of Second Amended and Restated Sublease Agreement, dated as of May 1, 2011, by and among Five Star
Quality Care Trust, as sublandlord, and Five Star Quality Care-GA, LLC, as subtenant.
8. Second Amended and Restated Sublease Agreement, dated November 6, 2006, by and between Five Star Quality Care Trust, a Maryland business trust, as Sublandlord, and Morningside of Kentucky, Limited Partnership, a Delaware limited partnership, as Subtenant, as amended by that certain Letter Agreement dated June 30, 2008 by and among Five Star Quality Care Trust, as sublandlord, and Certain Affiliates of Five Star Quality Care, Inc., as subtenants, as further amended by that certain Letter Agreement dated August 4, 2009 by and among Five Star Quality Care Trust, as sublandlord, and Certain Affiliates of Five Star Quality Care, Inc., as subtenants.
9. Sublease Agreement, dated March 31, 2008, by and between Five Star Quality Care Trust, a Maryland business trust, as sublandlord, and Stockton Heritage Partners, LLC, a Delaware limited liability company, as subtenant, as amended by that certain Letter Agreement dated June 30, 2008, by and among Five Star Quality Care Trust, as sublandlord, and Certain Affiliates of Five Star Quality Care, Inc., as subtenants, as further amended by that certain Letter Agreement dated August 4, 2009 by and among Five Star Quality Care Trust, as sublandlord, and Certain Affiliates of Five Star Quality Care, Inc., as subtenants.
10. Sublease Agreement, dated as of July 1, 2008, by and between Five Star Quality Care-NS Tenant, LLC, a Maryland limited liability company, as sublandlord, and Five Star Quality Care-GHV, LLC, a Maryland limited liability company, as subtenant, as amended by that certain Letter Agreement dated August 4, 2009 by and among Five Star Quality Care-NS Tenant, LLC, as sublandlord, and Certain Affiliates of Five Star Quality Care, Inc., as subtenants.
11. Sublease Agreement, dated as of July 1, 2008, by and between Five Star Quality Care-NS Tenant, LLC, a Maryland limited liability company, as sublandlord, and Five Star Quality Care-NJ, LLC, a Maryland limited liability company, as subtenant as amended by that certain Letter Agreement dated August 4, 2009 by and among Five Star Quality Care-NS Tenant, LLC, as sublandlord, and Certain Affiliates of Five Star Quality Care, Inc., as subtenants.
12. Amended and Restated Sublease Agreement, dated as of August 4, 2009, by and between Five Star Quality Care Trust, a Maryland business trust, as sublandlord, and Five Star
Quality Care-VA, LLC, a Delaware limited liability company, as subtenant.
13. Amended and Restated Sublease Agreement, dated as of August 4, 2009, by and between FS Tenant Holding Company Trust, a Maryland business trust, as sublandlord and FS Tenant Pool I Trust, a Maryland business trust, as subtenant.
14. Amended and Restated Sublease Agreement, dated as of October 1, 2009, by and between Five Star Quality Care Trust, a Maryland business trust, as sublandlord, and Five Star Quality Care-KS, LLC, a Delaware limited liability company, as subtenant.
15. Amended and Restated Sublease Agreement, dated August 1, 2010, but effective as of October 1, 2009, by and between Five Star Quality Care Trust, a Maryland business trust, as sublandlord, and Five Star Quality Care-IA, LLC, a Delaware limited liability company, as subtenant.
16. Amended and Restated Sublease Agreement, dated August 1, 2010, by and between Five Star Quality Care Trust, a Maryland business trust, as sublandlord, and Five Star Quality Care-NE, LLC, a Delaware limited liability company, as subtenant.
SCHEDULE 2
SCHEDULE 2
The Facilities
State | | Facility | | Subtenant |
| | | | |
CALIFORNIA: | | SOMERFORD PLACE — STOCKTON 3530 Deer Park Drive Stockton, California 95219 | | Stockton Heritage Partners, LLC |
| | | | |
COLORADO: | | LA VILLA GRANDE CARE CENTER 2501 Little Bookcliff Drive Grand Junction, Colorado 81501 | | Five Star Quality Care-Colorado, LLC |
| | | | |
FLORIDA: | | COURT AT PALM AIRE 2701 North Course Drive Pompano Beach, Florida 33069 | | Five Star Quality Care-FL, LLC |
| | | | |
GEORGIA: | | NORTHLAKE GARDENS 1300 Montreal Road Tucker, Georgia 30084 | | Five Star Quality Care-GA, LLC |
| | | | |
IOWA: | | WESTRIDGE QUALITY CARE & REHABILITATION 600 Manor Drive Clarinda, Iowa 51632 | | Five Star Quality Care-IA, LLC |
| | | | |
ILLINOIS`: | | BRENDEN GARDENS 900 Southwind Road Springfield, Illinois 62703 | | Five Star Quality Care-IL, LLC |
| | | | |
KANSAS: | | BRANDON WOODS AT ALVAMAR 1501 Inverness Drive Lawrence, Kansas 66047 | | Five Star Quality Care-KS, LLC |
| | | | |
| | OVERLAND PARK PLACE 6555 West 75th Street Overland Park, Kansas 66204 | | Five Star Quality Care-KS, LLC |
State | | Facility | | Subtenant |
| | | | |
KENTUCKY: | | MORNINGSIDE OF MAYFIELD 1517 West Broadway Mayfield, Kentucky 42066 | | Morningside of Kentucky, Limited Partnership |
| | | | |
| | THE NEIGHBORHOOD OF SOMERSET 100 Neighborly Drive Somerset, Kentucky 42503 | | Morningside of Kentucky, Limited Partnership |
| | | | |
NEBRASKA: | | CENTENNIAL PARK RETIREMENT VILLAGE 510 Centennial Circle North Platte, Nebraska 69101 | | Five Star Quality Care-NE, LLC |
| | | | |
| | WESTGATE ASSISTED LIVING 3030 South 80th Street Omaha, Nebraska 68124 | | Five Star Quality Care-NE, LLC |
| | | | |
NEW JERSEY: | | NEWSEASONS AT CHERRY HILL 490 Cooper Landing Road Cherry Hill, New Jersey 08002 | | Five Star Quality Care-NJ, LLC |
| | | | |
| | NEWSEASONS AT MOUNT ARLINGTON 2 Hillside Drive Mount Arlington, New Jersey 07856 | | Five Star Quality Care-NJ, LLC |
| | | | |
PENNSYLVANIA: | | NEWSEASONS AT NEW BRITAIN 800 Manor Drive Chalfont, Pennsylvania 18914 | | Five Star Quality Care-GHV, LLC |
| | | | |
| | NEWSEASONS AT CLARKS SUMMIT 950 Morgan Highway Clarks Summit, Pennsylvania 18411 | | Five Star Quality Care-GHV, LLC |
| | | | |
| | NEWSEASONS AT EXTON 600 North Pottstown Pike Exton, Pennsylvania 19341 | | Five Star Quality Care-GHV, LLC |
State | | Facility | | Subtenant |
| | | | |
| | NEWSEASONS AT GLEN MILLS (CONCORDVILLE) 242 Baltimore Pike Glen Mills, Pennsylvania 19342 | | Five Star Quality Care-GHV, LLC |
| | | | |
| | NEWSEASONS AT TIFFANY COURT 700 Northampton Street Kingston, Pennsylvania 18704 | | Five Star Quality Care-GHV, LLC |
| | | | |
SOUTH CAROLINA: | | MORNINGSIDE OF GREENWOOD 116 Enterprise Court Greenwood, South Carolina 29649 | | Morningside of Greenwood, L.P. |
| | | | |
TEXAS: | | MONTEVISTA AT CORONADO 1575 Belvidere El Paso, Texas 79912 | | FS Tenant Pool I Trust |
| | | | |
VIRGINIA: | | DOMINION VILLAGE OF POQUOSON 531 Wythe Creek Road Poquoson, Virginia 23662 | | Five Star Quality Care-VA, LLC |
| | | | |
| | MORNINGSIDE IN THE WEST END 3000 Skipwith Road Richmond, Virginia 23294 | | Morningside of Skipwith-Richmond, LLC |
| | | | |
WYOMING: | | WORLAND HEALTHCARE & REHABILITATION CENTER 1901 Howell Avenue Worland, Wyoming 82401 | | Five Star Quality Care-WY, LLC |
SCHEDULE 3
SCHEDULE 2
THE FACILITIES
CALIFORNIA:
SOMERFORD PLACE - STOCKTON
3530 Deer Park Drive
Stockton, California 95219
COLORADO:
LA VILLA GRANDE CARE CENTER
2501 Little Bookcliff Drive
Grand Junction, Colorado 81501
FLORIDA:
COURT AT PALM AIRE
2701 North Course Drive
Pompano Beach, Florida 33069
GEORGIA:
NORTHLAKE GARDENS
1300 Montreal Road
Tucker, Georgia 30084
IOWA:
WESTRIDGE QUALITY CARE & REHABILITATION
600 Manor Drive
Clarinda, Iowa 51632
ILLINOIS:
BRENDEN GARDENS
900 Southwind Road
Springfield, Illinois 62703
KANSAS:
BRANDON WOODS AT ALVAMAR
1501 Inverness Drive
Lawrence, Kansas 66047
OVERLAND PARK PLACE
6555 West 75th Street
Overland Park, Kansas 66204
KENTUCKY:
MORNINGSIDE OF MAYFIELD
1517 West Broadway
Mayfield, Kentucky 42066
THE NEIGHBORHOOD OF SOMERSET
100 Neighborly Drive
Somerset, Kentucky 42503
NEBRASKA:
CENTENNIAL PARK RETIREMENT VILLAGE
510 Centennial Circle
North Platte, Nebraska 69101
WESTGATE ASSISTED LIVING
3030 South 80th Street
Omaha, Nebraska 68124
NEW JERSEY:
NEWSEASONS AT CHERRY HILL
490 Cooper Landing Road
Cherry Hill, New Jersey 08002
NEWSEASONS AT MOUNT ARLINGTON
2 Hillside Drive
Mount Arlington, New Jersey 07856
PENNSYLVANIA:
NEWSEASONS AT NEW BRITAIN
800 Manor Drive
Chalfont, Pennsylvania 18914
NEWSEASONS AT CLARKS SUMMIT
950 Morgan Highway
Clarks Summit, Pennsylvania 18411
NEWSEASONS AT EXTON
600 North Pottstown Pike
Exton, Pennsylvania 19341
NEWSEASONS AT GLEN MILLS (CONCORDVILLE)
242 Baltimore Pike
Glen Mills, Pennsylvania 19342
NEWSEASONS AT TIFFANY COURT
700 Northampton Street
Kingston, Pennsylvania 18704
SOUTH CAROLINA:
MORNINGSIDE OF GREENWOOD
116 Enterprise Court
Greenwood, South Carolina 29649
TEXAS:
MONTEVISTA AT CORONADO
1575 Belvidere
El Paso, Texas 79912
VIRGINIA:
DOMINION VILLAGE OF POQUOSON
531 Wythe Creek Road
Poquoson, Virginia 23662
MORNINGSIDE IN THE WEST END
3000 Skipwith Road
Richmond, Virginia 23294
WYOMING:
WORLAND HEALTHCARE & REHABILITATION CENTER
1901 Howell Avenue
Worland, Wyoming 82401
