Exhibit 10.10


 


AMENDED
AND RESTATED PLEDGE OF SHARES OF BENEFICIAL INTEREST AGREEMENT


(LEASE
NO. 2)


 


THIS AMENDED AND RESTATED PLEDGE
OF SHARES OF BENEFICIAL INTEREST AGREEMENT (this “Agreement”) is made and given as of June 30,
2008 by FSQ, INC., a Delaware
corporation and FS TENANT HOLDING COMPANY
TRUST, a Maryland business trust (collectively, the “Pledgors”),
for the benefit of CCC FINANCING I TRUST,
a Maryland business trust, CCC OF KENTUCKY
TRUST, a Maryland business trust, CCC
OHIO HEALTHCARE TRUST, a Maryland business trust, CCC PUEBLO NORTE TRUST, a Maryland business
trust, CCC INVESTMENTS I, L.L.C.,
a Delaware limited liability company, CCCP
SENIOR LIVING LLC, a Delaware limited liability company, CCDE SENIOR LIVING LLC, a Delaware limited
liability company, CCFL SENIOR LIVING LLC,
a Delaware limited liability company, CCOP
SENIOR LIVING LLC, a Delaware limited liability company, CCSL SENIOR LIVING LLC, a Delaware limited
liability company, LTJ SENIOR COMMUNITIES LLC,
a Delaware limited liability company, CCC
FINANCING LIMITED, L.P., a Delaware limited partnership, CCC RETIREMENT COMMUNITIES II, L.P., a
Delaware partnership, HRES1 PROPERTIES TRUST,
a Maryland real estate investment trust, LEISURE
PARK VENTURE LIMITED PARTNERSHIP, a Delaware limited partnership,
and PANTHER HOLDINGS LEVEL I, L.P.,
a Delaware limited partnership (together with its respective successors and
assigns, collectively, the “Secured Parties”).


 


W  I  T  N  E
S  S  E  T  H:


 


WHEREAS, FS Tenant Holding Company Trust, a Maryland business trust,  and  FS Tenant Pool III
Trust, a Maryland business trust (collectively, “Sunrise Tenant”),
and certain Entities comprising the Secured Parties, are parties to that
certain Amended Master Lease Agreement, dated as of January 11, 2002, as
the same has been amended to date (as so amended, the “Original Sunrise
Lease”); and


 


WHEREAS, the Pledgors and certain Entities comprising the Secured Parties are
parties to that certain Pledge of Shares of Beneficial Interest Agreement,
dated as of January 11, 2002 (the “Original Sunrise Pledge Agreement”),
executed in connection with the Original
Sunrise Lease; and


 


WHEREAS, FS Commonwealth LLC, a Maryland limited
liability company, and FS Patriot LLC, a Maryland limited liability company (collectively, “Rehab Tenant”, and
together with Sunrise Tenant, collectively, “Tenant”), and HRES1 Properties Trust


 

















 


(“HRES1”), are
parties to that certain Amended and Restated Master Lease Agreement, dated as
of October 1, 2006, as the same has been amended to date (as so amended,
the “Original Rehabilitation Hospital Lease”, and together with the Original Sunrise Lease, collectively, the “Original
Leases”).


 


WHEREAS, FSQ, Inc. and HRES1 are parties to that certain Amended and
Restated Pledge Agreement, dated as of October 1, 2006 (the “Original
Rehab Pledge Agreement”, and together with the Original Sunrise Pledge
Agreement, collectively, the “Original Pledge Agreements”), executed in
connection with the Original
Rehabilitation Hospital Lease; and


 


WHEREAS, the Secured
Parties and Tenant are amending, restating and consolidating the Original
Leases into a single lease which shall be named the Amended and Restated Master Lease
Agreement (Lease No. 2), (the “Amended Lease No. 2”);


 


WHEREAS, the Pledgors currently own all of the
outstanding shares of beneficial interest in Tenant and are wholly-owned
subsidiaries of Five Star Quality Care, Inc. (the “Guarantor”); and


 


WHEREAS, the Pledgors and the Secured Parties
wish to amend, restate and consolidate the Original Pledge Agreements, subject
to and upon the terms and conditions herein set forth;


 


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
Pledgors and the Secured Parties agree that the Original Pledge Agreements are
hereby amended, restated and consolidated, effective as of the date hereof, to
read as follows:


 


Section 1. 
Certain Terms.  Capitalized
terms used and not otherwise defined in this Agreement shall have the meanings
ascribed to such terms in the Amended Lease No. 2.  The Amended Lease No. 2 and the other
Incidental Documents are herein collectively referred to as the “Transaction
Documents”.


 


Section 2. 
Pledge.  The Pledgors hereby pledge to the Secured
Parties all of the shares of beneficial interests in each of the Entities
comprising Tenant (the “Pledged Interests”) and all other shares of
beneficial interest in each of the Entities comprising Tenant in which the
Pledgors may have rights from time to time and any other securities or other
investment property and other collateral of the Pledgors now owned or hereafter
acquired which under this Agreement are required to be 


 


2

















 


pledged to the Secured Parties, and in each case, all
certificates representing such Pledged Interests or other investment property
or collateral, and all rights, options, warrants, stock or other securities or
other property which may hereafter be received, receivable or distributed in
respect of the Pledged Interests, together with all proceeds of the foregoing,
including, without limitation, all dividends, cash, notes, securities or other
property from time to time acquired, receivable or otherwise distributed in
respect of, or in exchange for, the foregoing, (the Pledged Interests and any
additional securities or collateral pledged hereunder, collectively, the “Pledged
Collateral”), and the Pledgors hereby grant to the Secured Parties a
security interest in all of the Pledged Collateral and the proceeds thereof as
security for the due and punctual payment and performance of the Secured
Obligations (as hereinafter defined).


 


The
Pledgors have delivered to and deposited with the Secured Parties any and all
certificates or other instruments representing the Pledged Collateral and
undated trust share powers endorsed in blank, as security for the payment and
performance of all of the Secured Obligations. 
If in the future any Pledgor possesses or controls any other
certificates or other instruments representing the Pledged Collateral, such
Pledgor shall immediately and without notice deliver the same to the Secured
Parties together with undated trust share powers endorsed in blank, as security
for the payment and performance of all of the Secured Obligations.


 


Section 3. 
Secured Obligations.  For purposes
of this Agreement, the term “Secured Obligations” shall mean the payment
and performance of each and every obligation of Tenant and the Guarantor under
the Transaction Documents or relating thereto, whether now existing or
hereafter arising, and including, without limitation, the payment of the full
amount of the Rent payable under the Amended Lease No. 2.


 


Section 4. 
Representations of the Pledgors.  Each Pledgor
covenants that the Pledged Interests are duly and validly pledged to the
Secured Parties in accordance with law and such Pledgor shall warrant and
defend the Secured Parties’ right, title and security interest in and to the
Pledged Interests against the claims and demands of all persons whomsoever.
Each Pledgor represents and warrants to the Secured Parties that such Pledgor
has good and marketable title to all the Pledged Interests pledged by it
hereunder, free and clear of all claims, mortgages, pledges, liens, security
interests and other encumbrances of every nature whatsoever; that the Pledged 


 


3

















 


Interests are not subject to any restriction on
transfer contained in the Declarations of Trust, Certificates of Formation,
Limited Liability Company Agreements or any other charter documents of any of
the Entities comprising Tenant or in any agreement or instrument to which any
of the Entities comprising Tenant or such Pledgor is a party or by which any of
the Entities comprising Tenant or such Pledgor is bound which would prohibit or
restrict the pledge of the Pledged Interests hereunder or the disposition
thereof upon default hereunder; that all of the Pledged Interests have been
duly and validly issued and are fully paid for and nonassessable; and that the
Pledged Interests constitute all of the presently issued and outstanding shares
of the beneficial interests of each of the Entities comprising Tenant.


 


Section 5. 
Covenants of the Pledgors.  Each Pledgor
hereby covenants and agrees that it shall not sell, convey or otherwise dispose
of any of the Pledged Collateral nor create, incur or permit to exist any
pledge, mortgage, lien, charge, encumbrance or any security interest whatsoever
with respect to any of the Pledged Collateral or the proceeds thereof, other
than the liens on and security interests in the Pledged Collateral created
hereby.  Each Pledgor further covenants
and agrees that it shall not consent to or approve the admission of any new
member in any of the Entities comprising Tenant.  Each Pledgor further covenants and agrees
that, until the Secured Obligations are paid in full, such Pledgor shall not
change the state of its organization or its name without providing the Secured
Parties with thirty (30) days’ prior written notice and making all filings and
taking all such other actions as the Secured Parties determine are necessary or
appropriate to continue or perfect the security interest granted hereunder.


 


Section 6. 
Filing of Financing Statements, Etc. 
Each Pledgor authorizes the Secured Parties to file from time to time
one or more financing statements describing the Pledged Collateral. Each
Pledgor will cooperate with the Secured Parties at their request from time to
time in obtaining control agreements in form and substance reasonably
satisfactory to the Secured Parties with respect to any collateral investment
property, deposit accounts, or other Pledged Collateral as to which the Secured
Parties determine such agreements are necessary or appropriate to perfect the
security interest granted hereunder.


 


Section 7. 
Distributions, Etc.  Upon the
dissolution, winding up, liquidation or reorganization of any Entity comprising
Tenant, whether in bankruptcy, insolvency or 


 


4

















 


receivership proceedings or upon an assignment for the
benefit of creditors or any other marshalling of the assets and liabilities of
any Entity comprising Tenant, if any sum shall be paid or any property shall be
distributed upon or with respect to any of the Pledged Collateral, such sum
shall be paid over to the Secured Parties, to be held as collateral security
for the Secured Obligations.  If any
dividend shall be declared on any of the Pledged Collateral (excluding cash
dividends), or any share of beneficial interest or fraction thereof shall be
issued pursuant to any split of beneficial interests involving any of the
Pledged Collateral, or any distribution of capital shall be made on any of the
Pledged Collateral, or any property shall be distributed upon or with respect
to the Pledged Collateral pursuant to recapitalization or reclassification of
the capital of any Entity comprising Tenant, the shares or other property so
distributed shall be delivered to the Secured Parties to be held as collateral
security for the Secured Obligations.


 


Section 8. 
Event of Default.  For purposes
of this Agreement, the term “Event of Default” shall mean (a) the
occurrence of an Event of Default under the Transaction Documents; (b) the
failure of the Guarantor to comply with any of its covenants or obligations
under any Guaranty and the continuation thereof for a period of ten (10) Business
Days after written notice thereof; (c) the failure of any Pledgor to
comply with any of its covenants or obligations under this Agreement and the
continuation thereof for a period of ten (10) Business Days after written
notice thereof; or (d) any representation or warranty contained herein or
made by any Pledgor in connection herewith shall prove to have been false or
misleading in any material respect when made.


 


Section 9. 
Remedies.  (a) Upon
the occurrence and during the continuance of an Event of Default, the Secured
Parties may cause all or any of the Pledged Collateral to be transferred into
its name or into the name of its nominee or nominees, subject to the provisions
of the Uniform Commercial Code or other applicable law.


 


(b)           Upon
the occurrence and during the continuance of an Event of Default, the Secured
Parties shall be entitled to exercise the voting power with respect to the
Pledged Collateral, to receive and retain, as collateral security for the
Secured Obligations, any and all dividends or other distributions at any time
and from time to time declared or made upon any of the Pledged Collateral, and
to exercise any and all such rights of payment, conversion, exchange,
subscription or any other rights, privileges or options pertaining to the 


 


5

















 


Pledged Collateral as if it were the absolute owner
thereof, including, without limitation, all such rights under the Declarations
of Trust, Certificates of Formation, Limited Liability Company Agreements or
any other charter documents of any Entity comprising Tenant, and further
including, without limitation, the right to exchange, at its discretion, any
and all of the Pledged Collateral upon the merger, consolidation,
reorganization, recapitalization or other readjustment of such Entity, upon the
exercise of any such right, privilege or option pertaining to the Pledged Collateral,
and in connection therewith, to deposit and deliver any and all of the Pledged
Collateral with any committee, depositary, transfer agent, registrar or other
designated agency upon such terms and conditions as the Secured Parties may
determine.


 


(c)           Upon
the occurrence and during the continuance of an Event of Default, the Secured
Parties shall have all of the rights and remedies of a secured party under the
Uniform Commercial Code or other applicable law and shall have the right to
sell, resell, assign and deliver all or any of the Pledged Collateral in one or
more parcels at any exchange or broker’s board or at public or private
sale.  The Secured Parties shall give the
Pledgors at least ten (10) days’ prior written notice of the time and
place of any public sale thereof or of the time after which any private sale or
any other intended disposition thereof is to be made.  Any such notice shall be deemed to meet any
requirement hereunder or under any applicable law (including the Uniform
Commercial Code) that reasonable notification be given of the time and place of
such sale or other disposition.  Such
notice may be given without any demand of performance or other demand, all such
demands being hereby expressly waived by the Pledgors to the extent permitted
by applicable law.  All such sales shall
be at such commercially reasonable price or prices as the Secured Parties shall
deem best and either for cash or on credit or for future delivery (without
assuming any responsibility for credit risk). 
At any such sale or sales, the Secured Parties may purchase any or all
of the Pledged Collateral to be sold thereat upon such terms as the Secured
Parties may deem best.  Upon any such
sale or sales, the Pledged Collateral so purchased shall be held by the purchaser
absolutely free from any claims or rights of any kind or nature of any Pledgor,
including any equity of redemption and any similar rights, all such equity of
redemption and any similar rights being hereby expressly waived and released by
such Pledgor to the extent permitted by applicable law.  In the event any consent, approval or
authorization of any governmental agency will be necessary to effectuate any
such sale or sales, such Pledgor shall execute, and hereby agree to cause the 


 


6

















 


applicable Entity comprising Tenant to execute, all
such applications or other instruments as may be required.  The proceeds of any such sale or sales,
together with any other additional collateral security at the time received and
held hereunder, shall be received and applied: 
first, to the payment of all costs and expenses of such sale,
including attorneys’ fees; and second, to the payment of the Secured
Obligations in such order of priority as the Secured Parties shall determine;
and any surplus thereafter remaining shall be paid to such Pledgor or to
whomever may be legally entitled thereto (including, if applicable, any
subordinated creditor of such Pledgor).


 


Each
Pledgor recognize that the Secured Parties may be unable to effect a public
sale of all or a part of the Pledged Collateral by reason of certain
prohibitions contained in the Securities Act of 1933, and may be compelled to
resort to one or more private sales to a restricted group of purchasers who
will be obliged to agree, among other things, to acquire such Pledged
Collateral for their own accounts, for investment and not with a view to the
distribution or resale thereof.  Each
Pledgor agrees that private sales so made may be at prices and upon other terms
less favorable to the seller than if such Pledged Collateral were sold at
public sales, and that the Secured Parties shall have no obligation to delay
sale of any such Pledged Collateral for the period of time necessary to permit
such Pledged Collateral to be registered for public sale under the Securities
Act of 1933. Each Pledgor agrees that private sales made under the foregoing
circumstances may be deemed to have been made in a commercially reasonable
manner.  Nothing herein shall be deemed
to require any Pledgor to effect a registration of the Pledged Collateral under
the Securities Act of 1933.


 


(d)           Upon
the occurrence and during the continuance of any Event of Default, the Secured
Parties, in their discretion, may demand, sue for and/or collect any money or
property at any time due, payable or receivable, to which it may be entitled
hereunder, on account of or in exchange for any of the Pledged Collateral.  Upon the occurrence and during the
continuance of any Event of Default, the Secured Parties shall further have the
right, for and in the name, place and stead of each Pledgor, to execute
endorsements, assignments, or other instruments of conveyance or transfer with
respect to all or any of the Pledged Collateral.


 


(e)           The
Secured Parties shall not be obligated to do any of the acts hereinabove
authorized and in the event that the Secured Parties elect to do any such act,
the Secured Parties 


 


7

















 


shall not be responsible to any Pledgor, other than
for gross negligence or willful misconduct.


 


(f)            The Secured Parties shall have no obligation to
marshal any assets in favor of any Pledgor, or against or in payment of the
Secured Obligations or any other obligation owed to the Secured Parties by any
Pledgor or any other person.


 


Section 10. 
Rights of Secured Parties.  No course of
dealing between any Pledgor and the Secured Parties nor any failure to
exercise, nor any delay in exercising, on the part of the Secured Parties, any
right, power or privilege hereunder or under any of the Secured Obligations,
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, power or privilege hereunder or thereunder preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege.  The rights and remedies
herein provided and provided under any of the Secured Obligations are
cumulative and are in addition to, and not exclusive of, any rights or remedies
provided by law, including, without limitation, the rights and remedies of the
Secured Parties under the Uniform Commercial Code.


 


Section 11. 
Assignment, Etc.  No waiver by
the Secured Parties or by any other holder of Secured Obligations of any
default shall be effective unless in writing nor operate as a waiver of any
other default or of the same default on a future occasion.  In the event of a sale or assignment by the
Secured Parties of its interests under the Transaction Documents, the Secured
Parties may assign or transfer its rights and interests under this Agreement in
whole or in part to the purchaser or assignee of such interests, whereupon such
purchaser or purchasers shall become vested with all of the powers and rights
given to the Secured Parties hereunder, and the Secured Parties shall thereafter
be forever released and fully discharged from any liability or responsibility
thereafter arising hereunder with respect to the rights and interests so
assigned.


 


Section 12. 
Duty of Secured Parties.  Beyond the
exercise of reasonable care to assure the safe custody of the Pledged
Collateral while held hereunder, the Secured Parties shall have no duty or
liability to collect any sums due in respect thereof or to protect or preserve
rights pertaining thereto, and shall be relieved of all responsibility for the
Pledged Collateral upon surrendering the same to the Pledgors.


 


Section 13. 
Waivers, Etc.  To the extent
permitted by applicable law, each Pledgor, on its own behalf and on behalf of 


 


8

















 


its successors and assigns, hereby waive presentment,
demand, payment, notice of dishonor, protest and, except as otherwise provided
herein, all other demands and notices in connection with this Agreement or the
enforcement of the rights of the Secured Parties hereunder or in connection
with any Secured Obligations.  The
Secured Parties may release, supersede, exchange or modify any collateral
security it may from time to time hold and release, surrender or modify the
liability of any third party without giving notice hereunder to the
Pledgors.  The Secured Parties shall be
under no duty to exhaust their rights against any such collateral security or
any such third party before realizing on the Pledged Collateral.  Such modifications, changes, renewals,
releases or other actions shall in no way affect any Pledgor’s obligations
hereunder.


 


Each
Pledgor further waive any right it may have under the Constitution of the
Commonwealth of Massachusetts (or under the constitution of any other state in
which any of the Pledged Collateral may be located), or under the Constitution
of the United States of America, to notice (except for notice specifically
required hereby) or to a judicial hearing prior to the exercise of any right or
remedy provided by this Agreement to the Secured Parties, and waives its
rights, if any, to set aside or invalidate any sale duly consummated in
accordance with the foregoing provisions hereof on the grounds (if such be the
case) that the sale was consummated without a prior judicial hearing. EACH
PLEDGOR’S WAIVERS UNDER THIS SECTION 13 HAVE BEEN MADE VOLUNTARILY,
INTELLIGENTLY AND KNOWINGLY AND AFTER SUCH PLEDGOR HAS BEEN APPRISED AND
COUNSELED BY ITS ATTORNEYS AS TO THE NATURE THEREOF AND ITS POSSIBLE
ALTERNATIVE RIGHTS.


 


Section 14. 
Further Assurances as to Collateral; Attorney-in-Fact. 
From time to time hereafter, each Pledgor shall execute and deliver, or
will cause to be executed and delivered, such additional instruments,
certificates or documents (including, without limitation, financing statements,
renewal statements, collateral assignments and other security documents), and
shall take all such actions, as the Secured Parties may reasonably request, for
the purposes of implementing or effectuating the provisions of this Agreement
or of more fully perfecting or renewing the Secured Parties’ rights with
respect to the Pledged Collateral (or with respect to any additions thereto or
replacements or proceeds thereof or with respect to any other property or
assets hereafter acquired by such Pledgor which may be deemed to be a part of
the Pledged Collateral) pursuant hereto and thereto.  The Secured Parties are hereby appointed the
attorney-in-fact, with full power of substitution, of each Pledgor for the
purpose of carrying out 


 


9

















 


the provisions of this Agreement and taking any
action, including, without limitation, executing, delivering and filing
applications, certificates, instruments and other documents and papers with
governmental authorities, and executing any instruments, including without
limitation, assignments, conveyances and transfers which are required to be
taken or executed by such Pledgor under this Agreement, on its behalf and in
its name which appointment is coupled with an interest, is irrevocable and
durable and shall survive the subsequent dissolution, disability or incapacity
of such Pledgor.


 


Section 15. 
Notices.  (a) Any
and all notices, demands, consents, approvals, offers, elections and other
communications required or permitted under this Agreement shall be deemed
adequately given if in writing and the same shall be delivered either in hand,
by telecopier with electronic confirmation of receipt, or by mail or Federal
Express or similar expedited commercial carrier, addressed to the recipient of
the notice, postpaid and registered or certified with return receipt requested
(if by mail), or with all freight charges prepaid (if by Federal Express or
similar carrier).


 


(b)           All notices required or permitted to be sent hereunder
shall be deemed to have been given for all purposes of this Agreement upon the
date of electronic confirmation of receipt, in the case of a notice by
telecopier, and, in all other cases, upon the date of receipt or refusal,
except that whenever under this Agreement a notice is either received on a day
which is not a Business Day or is required to be delivered on or before a
specific day which is not a Business Day, the day of receipt or required
delivery shall automatically be extended to the next Business Day.


 


(c)           All such notices shall be addressed,


 


if to
the Secured Parties to:


 


c/o
Senior Housing Properties Trust


400
Centre Street


Newton,
Massachusetts  02458


Attn:  Mr. David J. Hegarty


[Telecopier No. (617)
796-8349]


 


10

















 


if to
the Pledgors to:


 


c/o
Five Star Quality Care, Inc.


400
Centre Street


Newton,
Massachusetts  02458


Attn:  Mr. Bruce J. Mackey Jr.


[Telecopier No. (617)
796-8385]


 


(d)           By notice given as herein provided, the parties hereto
and their respective successors and assigns shall have the right from time to
time and at any time during the term of this Agreement to change their
respective addresses effective upon receipt by the other parties of such notice
and each shall have the right to specify as its address any other address
within the United States of America or to such other address as the party to
whom such notice is directed may have designated in writing to the other
parties hereto.


 


Section 16. 
Successors and Assigns.  This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, and the term “Secured Parties”
shall be deemed to include any other holder or holders of any of the Secured
Obligations.  Where the context so
permits or requires, terms defined herein in the singular number shall include
the plural, and in the plural number, the singular.  This Agreement may be executed in any number
of counterparts and by the different parties on separate counterparts, each of
which, when so executed and delivered, shall be an original and all of which
shall together constitute one and the same agreement.


 


Section 17. 
Appointment of Agent for Secured Parties.  Each of the Secured Parties hereby appoints CCC
Financing I Trust as its agent for the following purposes under this Agreement
(including, without limitation, the full power and authority to act of the
Secured Parties’ behalf for such purposes): (i) to give or receive
notices, demands, claims and other communications on behalf of the Secured
Parties under this Agreement and (ii) to receive and hold any and all
certificates or other instruments representing the Pledged Collateral which are
to be delivered from time to time by the Pledgors to the Secured Parties in
accordance with the terms and conditions of this Agreement.


 


Section 18. 
Reinstatement.  This
Agreement shall continue to be effective, or be reinstated, as the case may be,
if at any time any amount received by the Secured Parties in respect of the
Pledged Collateral is rescinded or must otherwise be 


 


11

















 


restored or returned by the Secured Parties upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of any
Pledgors or upon the appointment of any intervenor or conservator of, or
trustee or similar official for any Pledgor or any substantial part of its or
property, or otherwise, all as though such payments had not been made.


 


Section 19. 
Restrictions on Transfer.  To the extent
that any restrictions imposed by the Declarations of Trust, Certificates of
Formation, Limited Liability Company Agreements or any other charter documents
of any Entity comprising Tenant or any other document or instrument would in
any way affect or impair the pledge of the Pledged Collateral hereunder or the
exercise by the Secured Parties of any right granted hereunder including,
without limitation, the right of the Secured Parties to dispose of the Pledged
Collateral upon the occurrence of any Event of Default, each Pledgor hereby
waives such restrictions, and each Pledgor hereby agrees that it will take any
action which the Secured Parties may reasonably request in order that the
Secured Parties may obtain and enjoy the full rights and benefits granted to
the Secured Parties by this Agreement free of any such restrictions.


 


Section 20.  Applicable Law.  This
Agreement and any other instruments executed and delivered to evidence,
complete or perfect the transactions contemplated hereby and thereby shall be
interpreted, construed, applied and enforced in accordance with the laws of the
Commonwealth of Massachusetts applicable to contracts between residents of
Massachusetts which are to be performed entirely within Massachusetts
regardless of (i) where any such instrument is executed or delivered; or (ii) where
any payment or other performance required by any such instrument is made or
required to be made; or (iii) where any breach of any provision of any
such instrument occurs, or any cause of action otherwise accrues; or (iv) where
any action or other proceeding is instituted or pending; or (v) the
nationality, citizenship, domicile, principal place of business, or
jurisdiction of organization or domestication of any party; or (vi) whether the
laws of the forum jurisdiction otherwise would apply the laws of a jurisdiction
other than the Commonwealth of Massachusetts; or (vii) any combination of
the foregoing.


 


Section 21. 
Arbitration.  The Secured
Parties or any Pledgor may elect to submit any dispute hereunder that has an
amount in controversy in excess of $250,000 to arbitration hereunder.  Any such arbitration shall be conducted in
Boston, Massachusetts in accordance with the Commercial Arbitration Rules of
the American Association then pertaining and the 


 


12

















 


decision of the arbitrators with respect to such
dispute shall be binding, final and conclusive on the parties.


 


In the
event the Secured Parties or any Pledgor shall elect to submit any such dispute
to arbitration hereunder, the Secured Parties and such Pledgor shall each
appoint and pay all fees of a fit and impartial person as arbitrator with at
least ten (10) years’ recent professional experience in the general
subject matter of the dispute.  Notice of
such appointment shall be sent in writing by each party to the other, and the
arbitrators so appointed, in the event of their failure to agree within thirty
(30) days after the appointment of the second arbitrator upon the matter so
submitted, shall appoint a third arbitrator. 
If either the Secured Parties or any Pledgor shall fail to appoint an
arbitrator, as aforesaid, for a period of twenty (20) days after written notice
from the other party to make such appointment, then the arbitrator appointed by
the party having made such appointment shall appoint a second arbitrator and
the two (2) so appointed shall, in the event of their failure to agree upon any
decision within thirty (30) days thereafter, appoint a third arbitrator.  If such arbitrators fail to agree upon a
third arbitrator within forty five (45) days after the appointment of the
second arbitrator, then such third arbitrator shall be appointed by the
American Arbitration Association from its qualified panel of arbitrators, and
shall be a person having at least ten (10) years’ recent professional
experience as to the subject matter in question.  The fees of the third arbitrator and the
expenses incident to the proceedings shall be borne equally between the Secured
Parties and the Pledgor, unless the arbitrators decide otherwise.  The fees of respective counsel engaged by the
parties, and the fees of expert witnesses and other witnesses called for the
parties, shall be paid by the respective party engaging such counsel or calling
or engaging such witnesses.


 


The
decision of the arbitrators shall be rendered within thirty (30) days after
appointment of the third arbitrator. 
Such decision shall be in writing and in duplicate, one counterpart
thereof to be delivered to the Secured Parties and one to the Pledgor.  A judgment of a court of competent
jurisdiction may be entered upon the award of the arbitrators in accordance
with the rules and statutes applicable thereto then obtaining.


 


The
Secured Parties and each Pledgor acknowledge and agree that, to the extent any
such dispute shall involve any Manager and be subject to arbitration pursuant
to such Manager’s Management Agreement, the Secured Parties and such Pledgor
shall 


 


13

















 


cooperate to consolidate any such arbitration hereunder
and under such Management Agreement into a single proceeding.


 


Section 22. 
Severability.  In case any
one or more of the provisions contained in this Agreement should be invalid,
illegal or unenforceable in any respect, the validity, legality and enforceability
of the remaining provisions contained herein shall not in any way be affected
or impaired thereby, but this Agreement shall be reformed and construed and
enforced to the maximum extent permitted by applicable law.


 


Section 23. 
Entire Contract.  This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and shall supersede and take the place of
any other instruments purporting to be an agreement of the parties hereto
relating to the subject matter hereof.


 


Section 24. 
Headings; Counterparts.  Headings in
this Agreement are for purposes of reference only and shall not limit or
otherwise affect the meaning hereof. 
This Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute one
instrument, and in pleading or proving any provision of this Agreement, it
shall not be necessary to produce more than one of such counterparts.


 


Section 25. 
NONLIABILITY OF TRUSTEES.  THE
DECLARATIONS OF TRUST ESTABLISHING CERTAIN ENTITIES COMPRISING THE SECURED
PARTIES, COPIES OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (COLLECTIVELY,
THE “DECLARATIONS”), ARE DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS
AND TAXATION OF THE STATE OF MARYLAND, PROVIDE THAT THE NAMES OF SUCH ENTITIES
REFER TO THE TRUSTEES UNDER SUCH DECLARATIONS COLLECTIVELY AS TRUSTEES, BUT NOT
INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE
OR AGENT OF SUCH ENTITIES SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR
SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, SUCH ENTITIES.  ALL PERSONS DEALING WITH SUCH ENTITIES, IN
ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF SUCH ENTITIES FOR THE PAYMENT OF ANY
SUM OR THE PERFORMANCE OF ANY OBLIGATION.


 


Section 26. 
Original Pledge Agreements.  The Pledgors and the Secured Parties
acknowledge and agree that this Agreement amends and restates the Original
Pledge Agreements in their entirety with respect to the Pledged Collateral and
that this Agreement shall govern the rights and obligations of the Pledgors and
the Secured Parties with respect to the Pledged Collateral from and after the
date of this Agreement.  


 


14

















 


Notwithstanding the
foregoing, the Original Pledge Agreements shall continue to govern the rights
and obligations of the Pledgors and the Secured Parties with respect to the
Pledged Collateral prior to the date of this Agreement.


 


[Remainder of page intentionally
blank.]


 


15

















 


WITNESS
the execution hereof under seal as of the date above first written.


 


 


	
   

  	
  PLEDGOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  FSQ, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Travis K. Smith

  
	
   

  	
   

  	
  Travis K. Smith

  
	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FS
  TENANT HOLDING COMPANY TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Travis K.
  Smith

  
	
   

  	
   

  	
  Travis
  K. Smith

  
	
   

  	
   

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECURED PARTIES:

  
	
   

  	
   

  	
   

  
	
   

  	
  CCC FINANCING I TRUST,

  
	
   

  	
  CCC OF KENTUCKY TRUST,

  
	
   

  	
  CCC OHIO HEALTHCARE TRUST,

  
	
   

  	
  CCC PUEBLO NORTE TRUST

  
	
   

  	
  CCC INVESTMENTS I, L.L.C.,

  
	
   

  	
  CCCP SENIOR LIVING LLC,

  
	
   

  	
  CCDE SENIOR LIVING LLC,

  
	
   

  	
  CCFL SENIOR LIVING LLC,

  
	
   

  	
  CCOP SENIOR LIVING LLC,

  
	
   

  	
  CCSL SENIOR LIVING LLC,

  
	
   

  	
  LTJ SENIOR COMMUNITIES LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard A. Doyle

  
	
   

  	
   

  	
  Richard A. Doyle

  
	
   

  	
   

  	
  Treasurer and Chief
  Financial

  Officer of each of the foregoing

  entities

  



 

















 


	
   

  	
  CCC FINANCING LIMITED, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  CCC RETIREMENT TRUST,

  
	
   

  	
   

  	
  its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Richard A. Doyle

  
	
   

  	
   

  	
   

  	
  Richard A. Doyle

  
	
   

  	
   

  	
   

  	
  Treasurer and Chief
  Financial

  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CCC RETIREMENT COMMUNITIES II,
  L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  CRESTLINE VENTURES LLC,

  
	
   

  	
   

  	
  its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Richard A. Doyle

  
	
   

  	
   

  	
   

  	
  Richard A. Doyle

  
	
   

  	
   

  	
   

  	
  Treasurer and Chief
  Financial

  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HRES1 PROPERTIES TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard A. Doyle

  
	
   

  	
   

  	
  Richard A. Doyle

  
	
   

  	
   

  	
  Treasurer and Chief
  Financial

  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LEISURE PARK VENTURE LIMITED

  PARTNERSHIP

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  CCC LEISURE PARK
  CORPORATION,

  
	
   

  	
   

  	
  its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Richard A. Doyle

  
	
   

  	
   

  	
   

  	
  Richard A. Doyle

  
	
   

  	
   

  	
   

  	
  Treasurer and Chief
  Financial

  Officer

  



 

















 


	
   

  	
  PANTHER HOLDINGS LEVEL I, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  PANTHER GENPAR TRUST,

  
	
   

  	
   

  	
  its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Richard A. Doyle

  
	
   

  	
   

  	
   

  	
  Richard A. Doyle

  
	
   

  	
   

  	
   

  	
  Treasurer and Chief
  Financial

  Officer