EX-10.1






(Local Currency—Single Jurisdiction)



ISDA®




International Swap Dealers Association, Inc.




MASTER AGREEMENT




dated as of December 20, 2007

National City Bank and G&E Healthcare REIT Chesterfield Rehab Hospital, LLC




have entered and/or anticipate entering into one or more transactions (each a “Transaction”)
that are or will be governed by this Master Agreement, which includes the schedule (the
“Schedule”), and the documents and other confirming evidence (each a “Confirmation”) exchanged
between the parties confirming those Transactions.



Accordingly, the parties agree as follows: —



1. Interpretation



(a) Definitions. The terms defined in Section 12 and in the Schedule will have the meanings therein
specified for the purpose of this Master Agreement.



(b) Inconsistency. In the event of any inconsistency between the provisions of the Schedule and the
other provisions of this Master Agreement, the Schedule will prevail. In the event of any
inconsistency between the provisions of any Confirmation and this Master Agreement (including the
Schedule), such Confirmation will prevail for the purpose of the relevant Transaction.



(c) Single Agreement. All Transactions are entered into in reliance on the fact that this Master
Agreement and all Confirmations form a single agreement between the parties (collectively referred
to as this “Agreement”), and the parties would not otherwise enter into any Transactions.



2. Obligations



(a) General Conditions.




(i) Each party will make each payment or delivery specified in each Confirmation
to be made by it, subject to the other provisions of this Agreement.




(ii) Payments under this Agreement will be made on the due date for value on
that date in the place of the account specified in the relevant Confirmation or otherwise
pursuant to this Agreement, in freely transferable funds and in the manner customary for
payments in the required currency. Where settlement is by delivery (that is, other than by
payment), such delivery will be made for receipt on the due date in the manner customary for
the relevant obligation unless otherwise specified in the relevant Confirmation or elsewhere
in this Agreement.




(iii) Each obligation of each party under Section 2(a)(i) is subject to (1) the condition
precedent that no Event of Default or Potential Event of Default with respect to the other
party has occurred and is continuing, (2) the condition precedent that no Early Termination
Date in respect of the relevant Transaction has occurred or been effectively designated and
(3) each other applicable condition precedent specified in this Agreement.



1




(b) Change of Account. Either party may change its account for receiving a payment or
delivery by giving notice to the other party at least five Local Business Days prior to the
scheduled date for the payment or delivery to which such change applies unless such other party
gives timely notice of a reasonable objection to such change.



(c) Netting. If on any date amounts would otherwise be payable: —




(i) in the same currency; and




(ii) in respect of the same Transaction,



by each party to the other, then, on such date, each party’s obligation to make payment of any such
amount will be automatically satisfied and discharged and, if the aggregate amount that would
otherwise have been payable by one party exceeds the aggregate amount that would otherwise have
been payable by the other party, replaced by an obligation upon the party by whom the larger
aggregate amount would have been payable to pay to the other party the excess of the larger
aggregate amount over the smaller aggregate amount.



The parties may elect in respect of two or more Transactions that a net amount will be determined
in respect of all amounts payable on the same date in the same currency in respect of such
Transactions, regardless of whether such amounts are payable in respect of the same Transaction.
The election may be made in the Schedule or a Confirmation by specifying that subparagraph (ii)
above will not apply to the Transactions identified as being subject to the election, together with
the starting date (in which case subparagraph (ii) above will not, or will cease to, apply to such
Transactions from such date). This election may be made separately for different groups of
Transactions and will apply separately to each pairing of branches or offices through which the
parties make and receive payments or deliveries.



(d) Default Interest; Other Amounts. Prior to the occurrence or effective designation of an Early
Termination Date in respect of the relevant Transaction, a party that defaults in the performance
of any payment obligation will, to the extent permitted by law and subject to Section 6(c), be
required to pay interest (before as well as after judgment) on the overdue amount to the other
party on demand in the same currency as such overdue amount, for the period from (and including)
the original due date for payment to (but excluding) the date of actual payment, at the Default
Rate. Such interest will be calculated on the basis of daily compounding and the actual number of
days elapsed. If, prior to the occurrence or effective designation of an Early Termination Date in
respect of the relevant Transaction, a party defaults in the performance of any obligation required
to be settled by delivery, it will compensate the other party on demand if and to the extent
provided for in the relevant Confirmation or elsewhere in this Agreement.



3. Representations



Each party represents to the other party (which representations will be deemed to be repeated by
each party on each date on which a Transaction is entered into) that:—



(a) Basic Representations.




(i) Status. It is duly organised and validly existing under the laws of the jurisdiction of
its organisation or incorporation and, if relevant under such laws, in good standing;




(ii) Powers. It has the power to execute this Agreement and any other documentation relating
to this Agreement to which it is a party, to deliver this Agreement and any other
documentation relating to this Agreement that it is required by this Agreement to deliver
and to perform its obligations under this Agreement and any obligations it has under any
Credit Support Document to which it is a party and has taken all necessary action to
authorise such execution, delivery and performance;




(iii) No Violation or Conflict. Such execution, delivery and performance do not violate or
conflict with any law applicable to it, any provision of its constitutional documents, any
order or judgment of any court or other agency of government applicable to it or any of its
assets or any contractual restriction binding on or affecting it or any of its assets;





2





(iv) Consents. All governmental and other consents that are required to have been
obtained by it with respect to this Agreement or any Credit Support Document to which it is
a party have been obtained and are in full force and effect and all conditions of any such
consents have been complied with; and




(v) Obligations Binding. Its obligations under this Agreement and any Credit Support
Document to which it is a party constitute its legal, valid and binding obligations,
enforceable in accordance with their respective terms (subject to applicable bankruptcy,
reorganisation, insolvency, moratorium or similar laws affecting creditors’ rights generally
and subject, as to enforceability, to equitable principles of general application
(regardless of whether enforcement is sought in a proceeding in equity or at law)).



(b) Absence of Certain Events. No Event of Default or Potential Event of Default or, to its
knowledge, Termination Event with respect to it has occurred and is continuing and no such event or
circumstance would occur as a result of its entering into or performing its obligations under this
Agreement or any Credit Support Document to which it is a party.



(c) Absence of Litigation. There is not pending or, to its knowledge, threatened against it or any
of its Affiliates any action, suit or proceeding at law or in equity or before any court, tribunal,
governmental body, agency or official or any arbitrator that is likely to affect the legality,
validity or enforceability against it of this Agreement or any Credit Support Document to which it
is a party or its ability to perform its obligations under this Agreement or such Credit Support
Document.



(d) Accuracy of Specified information. All applicable information that is furnished in writing by
or on behalf of it to the other party and is identified for the purpose of this Section 3(d) in the
Schedule is, as of the date of the information, true, accurate and complete in every material
respect.



4. Agreements



Each party agrees with the other that, so long as either party has or may have any obligation under
this Agreement or under any Credit Support Document to which it is a party:—



(a) Furnish Specified Information. It will deliver to the other party any forms, documents or
certificates specified in the Schedule or any Confirmation by the date specified in the Schedule or
such Confirmation or, if none is specified, as soon as reasonably practicable.



(b) Maintain Authorisations. It will use all reasonable efforts to maintain in full force and
effect all consents of any governmental or other authority that are required to be obtained by it
with respect to this Agreement or any Credit Support Document to which it is a party and will use
all reasonable efforts to obtain any that may become necessary in the future.



(c) Comply with Laws. It will comply in all material respects with all applicable laws and orders
to which it may be subject if failure so to comply would materially impair its ability to perform
its obligations under this Agreement or any Credit Support Document to which it is a party.



5. Events of Default and Termination Events



(a) Events of Default. The occurrence at any time with respect to a party or, if applicable, any
Credit Support Provider of such party or any Specified Entity of such party of any of the following
events constitutes an event of default (an “Event of Default”) with respect to such party:—




(i) Failure to Pay or Deliver. Failure by the party to make, when due, any payment under
this Agreement or delivery under Section 2(a)(i) or 2(d) required to be made by it if such
failure is not remedied on or before the third Local Business Day after notice of such
failure is given to the party;




(ii) Breach of Agreement. Failure by the party to comply with or perform any agreement or
obligation (other than an obligation to make any payment under this Agreement or delivery
under Section 2(a)(i) or 2(d) or to give notice of a Termination Event) to be complied with
or performed



3




by the party in accordance with this Agreement if such failure is not remedied on or before
the thirtieth day after notice of such failure is given to the party;




(iii) Credit Support Default.




(1) Failure by the party or any Credit Support Provider of such party to comply with
or perform any agreement or obligation to be complied with or performed by it in
accordance with any Credit Support Document if such failure is continuing after any
applicable grace period has elapsed;




(2) the expiration or termination of such Credit Support Document or the failing or
ceasing of such Credit Support Document to be in full force and effect for the
purpose of this Agreement (in either case other than in accordance with its terms)
prior to the satisfaction of all obligations of such party under each Transaction to
which such Credit Support Document relates without the written consent of the other
party; or




(3) the party or such Credit Support Provider disaffirms, disclaims, repudiates or
rejects, in whole or in part, or challenges the validity of, such Credit Support
Document;




(iv) Misrepresentation . A representation made or repeated or deemed to have been made or
repeated by the party or any Credit Support Provider of such party in this Agreement or any
Credit Support Document proves to have been incorrect or misleading in any material respect
when made or repeated or deemed to have been made or repeated;




(v) Default under Specified Transaction. The party, any Credit Support Provider of such
party or any applicable Specified Entity of such party (1) defaults under a Specified
Transaction and, after giving effect to any applicable notice requirement or grace period,
there occurs a liquidation of, an acceleration of obligations under, or an early termination
of, that Specified Transaction, (2) defaults, after giving effect to any applicable notice
requirement or grace period, in making any payment or delivery due on the last payment,
delivery or exchange date of, or any payment on early termination of, a Specified
Transaction (or such default continues for at least three Local Business Days if there is no
applicable notice requirement or grace period) or (3) disaffirms, disclaims, repudiates or
rejects, in whole or in part, a Specified Transaction (or such action is taken by any person
or entity appointed or empowered to operate it or act on its behalf);




(vi) Cross Default. If “Cross Default” is specified in the Schedule as applying to the
party, the occurrence or existence of (1) a default, event of default or other similar
condition or event (however described) in respect of such party, any Credit Support Provider
of such party or any applicable Specified Entity of such party under one or more agreements
or instruments relating to Specified Indebtedness of any of them (individually or
collectively) in an aggregate amount of not less than the applicable Threshold Amount (as
specified in the Schedule) which has resulted in such Specified Indebtedness becoming, or
becoming capable at such time of being declared, due and payable under such agreements or
instruments, before it would otherwise have been due and payable or (2) a default by such
party, such Credit Support Provider or such Specified Entity (individually or collectively)
in making one or more payments on the due date thereof in an aggregate amount of not less
than the applicable Threshold Amount under such agreements or instruments (after giving
effect to any applicable notice requirement or grace period);




(vii) Bankruptcy. The party, any Credit Support Provider of such party or any applicable
Specified Entity of such party:—




(1) is dissolved (other than pursuant to a consolidation, amalgamation or merger);
(2) becomes insolvent or is unable to pay its debts or fails or admits in writing
its inability generally to pay its debts as they become due; (3) makes a general
assignment, arrangement or composition with or for the benefit of its creditors; (4)
institutes or has instituted against it a proceeding seeking a judgment of
insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law
or other similar law affecting creditors’ rights, or a petition is presented for its



4





winding-up or liquidation, and, in the case of any such proceeding or petition
instituted or presented against it, such proceeding or petition (A) results in a
judgment of insolvency or bankruptcy or the entry of an order for relief or the making
of an order for its winding-up or liquidation or (B) is not dismissed, discharged,
stayed or restrained in each case within 30 days of the institution or presentation
thereof; (5) has a resolution passed for its winding-up, official management or
liquidation (other than pursuant to a consolidation, amalgamation or merger); (6)
seeks or becomes subject to the appointment of an administrator, provisional
liquidator, conservator, receiver, trustee, custodian or other similar official for it
or for all or substantially all its assets; (7) has a secured party take possession of
all or substantially all its assets or has a distress, execution, attachment,
sequestration or other legal process levied, enforced or sued on or against all or
substantially all its assets and such secured party maintains possession, or any such
process is not dismissed, discharged, stayed or restrained, in each case within 30
days thereafter; (8) causes or is subject to any event with respect to it which, under
the applicable laws of any jurisdiction, has an analogous effect to any of the events
specified in clauses (1) to (7) (inclusive); or (9) takes any action in furtherance
of, or indicating its consent to, approval of, or acquiescence in, any of the
foregoing acts; or




(viii) Merger Without Assumption. The party or any Credit Support Provider of such party
consolidates or amalgamates with, or merges with or into, or transfers all or substantially
all its assets to, another entity and, at the time of such consolidation, amalgamation,
merger or transfer:




(1) the resulting, surviving or transferee entity fails to assume all the
obligations of such party or such Credit Support Provider under this Agreement or
any Credit Support Document to which it or its predecessor was a party by operation
of law or pursuant to an agreement reasonably satisfactory to the other party to
this Agreement; or




(2) the benefits of any Credit Support Document fail to extend (without the consent
of the other party) to the performance by such resulting, surviving or transferee
entity of its obligations under this Agreement.



(b) Termination Events. The occurrence at any time with respect to a party or, if applicable, any
Credit Support Provider of such party or any Specified Entity of such party of any event specified
below constitutes an Illegality if the event is specified in (i) below, and, if specified to be
applicable, a Credit Event Upon Merger if the event is specified pursuant to (ii) below or an
Additional Termination Event if the event is specified pursuant to (iii) below:—




(i) Illegality. Due to the adoption of, or any change in, any applicable law after the date
on which a Transaction is entered into, or due to the promulgation of, or any change in, the
interpretation by any court, tribunal or regulatory authority with competent jurisdiction of
any applicable law after such date, it becomes unlawful (other than as a result of a breach
by the party of Section 4(b)) for such party (which will be the Affected Party):—




(1) to perform any absolute or contingent obligation to make a payment or delivery or
to receive a payment or delivery in respect of such Transaction or to comply with any
other material provision of this Agreement relating to such Transaction; or




(2) to perform, or for any Credit Support Provider of such party to perform, any
contingent or other obligation which the party (or such Credit Support Provider) has
under any Credit Support Document relating to such Transaction;




(ii) Credit Event Upon Merger. If “Credit Event Upon Merger” is specified in the Schedule
as applying to the party, such party (“X”), any Credit Support Provider of X or any
applicable Specified Entity of X consolidates or amalgamates with, or merges with or into,
or transfers all or substantially all its assets to, another entity and such action does
not constitute an event described in Section 5(a)(viii) but the creditworthiness of the
resulting, surviving or transferee entity is materially weaker than that of X, such Credit
Support Provider or such Specified Entity, as the case may be, immediately prior to such
action (and, in such event, X or its successor or transferee, as appropriate, will be the
Affected Party); or



5





(iii) Additional Termination Event. If any “Additional Termination Event” is
specified in the Schedule or any Confirmation as applying, the occurrence of such event
(and, in such event, the Affected Party or Affected Parties shall be as specified for such
Additional Termination Event in the Schedule or such Confirmation).



(c) Event of Default and Illegality. If an event or circumstance which would otherwise constitute
or give rise to an Event of Default also constitutes an Illegality, it will be treated as an
Illegality and will not constitute an Event of Default.



6. Early Termination



(a) Right to Terminate Following Event of Default. If at any time an Event of Default with respect
to a party (the “Defaulting Party”) has occurred and is then continuing, the other party (the
“Non-defaulting Party”) may, by not more than 20 days notice to the Defaulting Party specifying the
relevant Event of Default, designate a day not earlier than the day such notice is effective as an
Early Termination Date in respect of all outstanding Transactions. If, however, “Automatic Early
Termination” is specified in the Schedule as applying to a party, then an Early Termination Date in
respect of all outstanding Transactions will occur immediately upon the occurrence with respect to
such party of an Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6) or, to the
extent analogous thereto, (8), and as of the time immediately preceding the institution of the
relevant proceeding or the presentation of the relevant petition upon the occurrence with respect
to such party of an Event of Default specified in Section 5(a)(vii)(4) or, to the extent analogous
thereto, (8).



(b) Right to Terminate Following Termination Event.




(i) Notice. If a Termination Event occurs, an Affected Party will, promptly upon becoming
aware of it, notify the other party, specifying the nature of that Termination Event and
each Affected Transaction and will also give such other information about that Termination
Event as the other party may reasonably require.




(ii) Two Affected Parties. If an Illegality under Section 5(b)(i)(1) occurs and there are
two Affected Parties, each party will use all reasonable efforts to reach agreement within
30 days after notice thereof is given under Section 6(b)(i) on action to avoid that
Termination Event.




(iii) Right to Terminate. If: —




(1) an agreement under Section 6(b)(ii) has not been effected with respect to all
Affected Transactions within 30 days after an Affected Party gives notice under
Section 6(b)(i); or




(2) an Illegality other than that referred to in Section 6(b)(ii), a Credit Event
Upon Merger or an Additional Termination Event occurs,




either party in the case of an Illegality, any Affected Party in the case of an Additional
Termination Event if there is more than one Affected Party, or the party which is not the
Affected Party in the case of a Credit Event Upon Merger or an Additional Termination Event
if there is only one Affected Party may, by not more than 20 days notice to the other party
and provided that the relevant Termination Event is then continuing, designate a day not
earlier than the day such notice is effective as an Early Termination Date in respect of all
Affected Transactions.



(c) Effect of Designation.




(i) If notice designating an Early Termination Date is given under Section 6(a) or (b), the
Early Termination Date will occur on the date so designated, whether or not the relevant
Event of Default or Termination Event is then continuing.





6





(ii) Upon the occurrence or effective designation of an Early Termination Date, no
further payments or deliveries under Section 2(a)(i) or 2(d) in respect of the Terminated
Transactions will be required to be made, but without prejudice to the other provisions of
this Agreement. The amount, if any, payable in respect of an Early Termination Date shall be
determined pursuant to Section 6(e).



(d) Calculations.




(i) Statement. On or as soon as reasonably practicable following the occurrence of an Early
Termination Date, each party will make the calculations on its part, if any, contemplated by
Section 6(e) and will provide to the other party a statement (1) showing, in reasonable
detail, such calculations (including all relevant quotations and specifying any amount
payable under Section 6(e)) and (2) giving details of the relevant account to which any
amount payable to it is to be paid. In the absence of written confirmation from the source
of a quotation obtained in determining a Market Quotation, the records of the party
obtaining such quotation will be conclusive evidence of the existence and accuracy of such
quotation.




(ii) Payment Date. An amount calculated as being due in respect of any Early Termination
Date under Section 6(e) will be payable on the day that notice of the amount payable is
effective (in the case of an Early Termination Date which is designated or occurs as a
result of an Event of Default) and on the day which is two Local Business Days after the day
on which notice of the amount payable is effective (in the case of an Early Termination Date
which is designated as a result of a Termination Event). Such amount will be paid together
with (to the extent permitted under applicable law) interest thereon (before as well as
after judgment), from (and including) the relevant Early Termination Date to (but excluding)
the date such amount is paid, at the Applicable Rate. Such interest will be calculated on
the basis of daily compounding and the actual number of days elapsed.




(e) Payments on Early Termination. If an Early Termination Date occurs, the following provisions
shall apply based on the parties’ election in the Schedule of a payment measure, either “Market
Quotation” or “Loss”, and a payment method, either the “First Method” or the “Second Method”. If
the parties fail to designate a payment measure or payment method in the Schedule, it will be
deemed that “Market Quotation” or the “Second Method”, as the case may be, shall apply. The
amount, if any, payable in respect of an Early Termination Date and determined pursuant to this
Section will be subject to any Set-off.




(i) Events of Default. If the Early Termination Date results from an Event of Default:—




(1) First Method and Market Quotation. If the First Method and Market Quotation
apply, the Defaulting Party will pay to the Non-defaulting Party the excess, if a
positive number, of


(A) the sum of the Settlement Amount (determined by the Non-defaulting Party) in
respect of the Terminated Transactions and the Unpaid Amounts owing to the
Non-defaulting Party over


(B) the Unpaid Amounts owing to the Defaulting Party.




(2) First Method and Loss. If the First Method and Loss apply, the Defaulting Party
will pay to the Non-defaulting Party, if a positive number, the Non-defaulting
Party’s Loss in respect of this Agreement.




(3) Second Method and Market Quotation. If the Second Method and Market Quotation
apply, an amount will be payable equal to (A) the sum of the Settlement Amount
(determined by the Non-defaulting Party) in respect of the Terminated Transactions
and the Unpaid Amounts owing to the Non-defaulting Party less (B) the Unpaid Amounts
owing to the Defaulting Party. If that amount is a positive number, the Defaulting
Party will pay it to the Non-defaulting Party; if it is a negative number, the
Non-defaulting Party will pay the absolute value of that amount to the Defaulting
Party.




(4) Second Method and Loss. If the Second Method and Loss apply, an amount will be
payable equal to the Non-defaulting Party’s Loss in respect of this Agreement. If
that amount is a positive number, the Defaulting Party will pay it to the
Non-defaulting Party; if it is a negative



7





number, the Non-defaulting Party will pay the absolute value of that amount to
the Defaulting Party.




(ii) Termination Events. If the Early Termination Date results from a Termination Event:—




(1) One Affected Party. If there is one Affected Party, the amount payable will be
determined in accordance with Section 6(e)(i)(3), if Market Quotation applies, or
Section 6(e)(i)(4), if Loss applies, except that, in either case, references to the
Defaulting Party and to the Non-defaulting Party will be deemed to be references to
the Affected Party and the party which is not the Affected Party, respectively, and,
if Loss applies and fewer than all the Transactions are being terminated, Loss shall
be calculated in respect of all Terminated Transactions.




(2) Two Affected Parties. If there are two Affected Parties:—




(A) if Market Quotation applies, each party will determine a Settlement
Amount in respect of the Terminated Transactions, and an amount will be
payable equal to (I) the sum of (a) one-half of the difference between the
Settlement Amount of the party with the higher Settlement Amount (“X”) and
the Settlement Amount of the party with the lower Settlement Amount (“Y”)
and (b) the Unpaid Amounts owing to X less (II) the Unpaid Amounts owing to
Y; and




(B) if Loss applies, each party will determine its Loss in respect of this
Agreement (or, if fewer than all the Transactions are being terminated, in
respect of all Terminated Transactions) and an amount will be payable equal
to one-half of the difference between the Loss of the party with the higher
Loss (“X”) and the Loss of the party with the lower Loss (“Y”).




If the amount payable is a positive number, Y will pay it to X; if it is a negative
number, X will pay the absolute value of that amount to Y.




(iii) Adjustment for Bankruptcy. In circumstances where an Early Termination Date occurs
because “Automatic Early Termination” applies in respect of a party, the amount determined
under this Section 6(e) will be subject to such adjustments as are appropriate and permitted
by law to reflect any payments or deliveries made by one party to the other under this
Agreement (and retained by such other party) during the period from the relevant Early
Termination Date to the date for payment determined under Section 6(d)(ii).




(iv) Pre -Estimate. The parties agree that if Market Quotation applies an amount recoverable
under this Section 6(e) is a reasonable pre-estimate of loss and not a penalty. Such amount
is payable for the loss of bargain and the loss of protection against future risks and
except as otherwise provided in this Agreement neither party will be entitled to recover any
additional damages as a consequence of such losses.



7. Transfer



Neither this Agreement nor any interest or obligation in or under this Agreement may be transferred
(whether by way of security or otherwise) by either party without the prior written consent of the
other party, except that:—



(a) a party may make such a transfer of this Agreement pursuant to a consolidation amalgamation
with, or merger with or into, or transfer of all or substantially all its assets to, another entity
(but without prejudice to any other right or remedy under this Agreement); and



(b) a party may make such a transfer of all or any part of its interest in any amount payable to it
from


a Defaulting Party under Section 6(e).



Any purported transfer that is not in compliance with this Section will be void





8





8. Miscellaneous



(a) Entire Agreement. This Agreement constitutes the entire agreement and understanding of the
parties with respect to its subject matter and supersedes all oral communication and prior writings
with respect thereto.



(b) Amendments. No amendment, modification or waiver in respect of this Agreement will be effective
unless in writing (including a writing evidenced by a facsimile transmission) and executed by each
of the parties or confirmed by an exchange of telexes or electronic messages on an electronic
messaging system.



(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and 6(c)(ii), the obligations
of the parties under this Agreement will survive the termination of any Transaction.



(d) Remedies Cumulative. Except as provided in this Agreement, the rights, powers, remedies and
privileges provided in this Agreement are cumulative and not exclusive of any rights, powers,
remedies and privileges provided by law.



(e) Counterparts and Confirmations.




(i) This Agreement (and each amendment, modification and waiver in respect of it) may be
executed and delivered in counterparts (including by facsimile transmission), each of which
will be deemed an original.




(ii) The parties intend that they are legally bound by the terms of each Transaction from
the moment they agree to those terms (whether orally or otherwise). A Confirmation shall be
entered into as soon as practicable and may be executed and delivered in counterparts
(including by facsimile transmission) or be created by an exchange of telexes or by an
exchange of electronic messages on an electronic messaging system, which in each case will
be sufficient for all purposes to evidence a binding supplement to this Agreement. The
parties will specify therein or through another effective means that any such counterpart,
telex or electronic message constitutes a Confirmation.



(f) No Waiver of Rights. A failure or delay in exercising any right, power or privilege in respect
of this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of
any right, power or privilege will not be presumed to preclude any subsequent or further exercise,
of that right, power or privilege or the exercise of any other right, power or privilege.



(g) Headings. The headings used in this Agreement are for convenience of reference only and are not
to affect the construction of or to be taken into consideration in interpreting this Agreement.



9. Expenses



A Defaulting Party will, on demand, indemnify and hold harmless the other party for and against all
reasonable out-of-pocket expenses, including legal fees, incurred by such other party by reason of
the enforcement and protection of its rights under this Agreement or any Credit Support Document to
which the Defaulting Party is a party or by reason of the early termination of any Transaction,
including, but not limited to, costs of collection.



10. Notices



(a) Effectiveness. Any notice or other communication in respect of this Agreement may be given in
any manner set forth below (except that a notice or other communication under Section 5 or 6 may
not be given by facsimile transmission or electronic messaging system) to the address or number or
in accordance with the electronic messaging system details provided (see the Schedule) and will be
deemed effective as indicated:—




(i) if in writing and delivered in person or by courier, on the date it is delivered;




(ii) if sent by telex, on the date the recipient’s answerback is received;





9





(iii) if sent by facsimile transmission, on the date that transmission is received by
a responsible employee of the recipient in legible form (it being agreed that the burden of
proving receipt will be on the sender and will not be met by a transmission report generated
by the sender’s facsimile machine);




(iv) if sent by certified or registered mail (airmail, if overseas) or the equivalent
(return receipt requested), on the date that mail is delivered or its delivery is attempted;
or




(v) if sent by electronic messaging system, on the date that electronic message is received,



unless the date of that delivery (or attempted delivery) or that receipt, as applicable, is not a
Local Business Day or that communication is delivered (or attempted) or received, as applicable,
after the close of business on a Local Business Day, in which case that communication shall be
deemed given and effective on the first following day that is a Local Business Day.



(b) Change of Addresses. Either party may by notice to the other change the address, telex or
facsimile number or electronic messaging system details at which notices or other communications
are to be given to it.



11. Governing Law and Jurisdiction



(a) Governing Law. This Agreement will be governed by and construed in accordance with the law
specified in the Schedule.



(b) Jurisdiction. With respect to any suit, action or proceedings relating to this Agreement
(“Proceedings”), each party irrevocably: —




(i) submits to the jurisdiction of the English courts, if this Agreement is expressed to be
governed by English law, or to the non-exclusive jurisdiction of the courts of the State of
New York and the United States District Court located in the Borough of Manhattan in New
York City, if this Agreement is expressed to be governed by the laws of the State of New
York; and




(ii) waives any objection which it may have at any time to the laying of venue of any
Proceedings brought in any such court, waives any claim that such Proceedings have been
brought in an inconvenient forum and further waives the right to object, with respect to
such Proceedings, that such court does not have any jurisdiction over such party.



Nothing in this Agreement precludes either party from bringing Proceedings in any other
jurisdiction (outside, if this Agreement is expressed to be governed by English law, the
Contracting States, as defined in Section 1(3) of the Civil Jurisdiction and Judgments Act 1982 or
any modification, extension or re-enactment thereof for the time being in force) nor will the
bringing of Proceedings in any one or more jurisdictions preclude the bringing of Proceedings in
any other jurisdiction.



(c) Waiver of Immunities. Each party irrevocably waives, to the fullest extent permitted by
applicable law, with respect to itself and its revenues and assets (irrespective of their use or
intended use), all immunity on the grounds of sovereignty or other similar grounds from (i) suit,
(ii) jurisdiction of any court, (iii) relief by way of injunction, order for specific performance
or for recovery of property, (iv) attachment of its assets (whether before or after judgment) and
(v) execution or enforcement of any judgment to which it or its revenues or assets might otherwise
be entitled in any Proceedings in the courts of any jurisdiction and irrevocably agrees, to the
extent permitted by applicable law, that it will not claim any such immunity in any Proceedings.



12. Definitions



As used in this Agreement:—



“Additional Termination Event” has the meaning specified in Section 5(b).



“Affected Party” has the meaning specified in Section 5(b).





10





“Affected Transactions” means (a) with respect to any Termination Event consisting of an
Illegality, all Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.



“Affiliate” means, subject to the Schedule, in relation to any person, any entity controlled,
directly or indirectly, by the person, any entity that controls, directly or indirectly, the person
or any entity directly or indirectly under common control with the person. For this purpose,
“control” of any entity or person means ownership of a majority of the voting power of the entity
or person.



“Applicable Rate” means:—



(a) in respect of obligations payable or deliverable (or which would have been but for Section
2(a)(iii)) by a Defaulting Party, the Default Rate;



(b) in respect of an obligation to pay an amount under Section 6(e) of either party from and after
the date (determined in accordance with Section 6(d)(ii)) on which that amount is payable, the
Default Rate;



(c) in respect of all other obligations payable or deliverable (or which would have been but for
Section 2(a)(iii)) by a Non-defaulting Party, the Non-default Rate; and



(d) in all other cases, the Termination Rate.



“consent” includes a consent, approval, action, authorisation, exemption, notice, filing,
registration or exchange control consent.



“Credit Event Upon Merger” has the meaning specified in Section 5(b).



“Credit Support Document” means any agreement or instrument that is specified as such in this
Agreement.



“Credit Support Provider” has the meaning specified in the Schedule.



“Default Rate” means a rate per annum equal to the cost (without proof or evidence of any actual
cost) to the relevant payee (as certified by it) if it were to fund or of funding the relevant
amount plus 1 % per annum.



“Defaulting Party” has the meaning specified in Section 6(a).



“Early Termination Date” means the date determined in accordance with Section 6(a) or 6(b)(iii).



“Event of Default” has the meaning specified in Section 5(a) and, if applicable, in the Schedule.



“Illegality” has the meaning specified in Section 5(b).



“law” includes any treaty, law, rule or regulation and “lawful” and “unlawful” will be construed
accordingly.



“Local Business Day” means, subject to the Schedule, a day on which commercial banks are open for
business (including dealings in foreign exchange and foreign currency deposits) (a) in relation to
any obligation under Section 2(a)(i), in the place(s) specified in the relevant Confirmation or, if
not so specified, as otherwise agreed by the parties in writing or determined pursuant to
provisions contained, or incorporated by reference, in this Agreement, (b) in relation to any other
payment, in the place where the relevant account is located, (c) in relation to any notice or other
communication, including notice contemplated under Section 5(a)(i), in the city specified in the
address for notice provided by the recipient and, in the case of a notice contemplated by Section
2(b), in the place where the relevant new account is to be located and (d) in relation to Section
5(a)(v)(2), in the relevant locations for performance with respect to such Specified Transaction.



“Loss” means, with respect to this Agreement or one or more Terminated Transactions, as the case
may be, and a party, an amount that party reasonably determines in good faith to be its total
losses and costs (or gain, in which case expressed as a negative number) in connection with this
Agreement or that Terminated Transaction or group of Terminated Transactions, as the case may be,
including any loss of bargain, cost of funding or, at the election of such party but without
duplication, loss or cost incurred as a result of its terminating, liquidating, obtaining or
reestablishing any hedge or related trading position ( or any gain





11





resulting from any of them). Loss includes losses and costs (or gains) in respect of any
payment or delivery required to have been made (assuming satisfaction of each applicable condition
precedent) on or before the relevant Early Termination Date and not made, except, so as to avoid
duplication, if Section 6(e)(i)(1) or (3) or 6(e)(ii)(2)(A) applies. Loss does not include a
party’s legal fees and out-of-pocket expenses referred to under Section 9. A party will determine
its Loss as of the relevant Early Termination Date, or, if that is not reasonably practicable, as
of the earliest date thereafter as is reasonably practicable. A party may (but need not) determine
its Loss by reference to quotations of relevant rates or prices from one or more leading dealers in
the relevant markets.



“Market Quotation” means, with respect to one or more Terminated Transactions and a party making
the determination, an amount determined on the basis of quotations from Reference Market-makers.
Each quotation will be for an amount, if any, that would be paid to such party (expressed as a
negative number) or by such party (expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support Document with respect to the
obligations of such party) and the quoting Reference Market-maker to enter into a transaction (the
“Replacement Transaction”) that would have the effect of preserving for such party the economic
equivalent of any payment or delivery (whether the underlying obligation was absolute or contingent
and assuming the satisfaction of each applicable condition precedent) by the parties under Section
2(a)(i) in respect of such Terminated Transaction or group of Terminated Transactions that would,
but for the occurrence of the relevant Early Termination Date, have been required after that date.
For this purpose, Unpaid Amounts in respect of the Terminated Transaction or group of Terminated
Transactions are to be excluded but, without limitation, any payment or delivery that would, but
for the relevant Early Termination Date, have been required (assuming satisfaction of each
applicable condition precedent) after that Early Termination Date is to be included. The
Replacement Transaction would be subject to such documentation as such party and the Reference
Market-maker may, in good faith, agree. The party making the determination (or its agent) will
request each Reference Market-maker to provide its quotation to the extent reasonably practicable
as of the same day and time (without regard to different time zones) on or as soon as reasonably
practicable after the relevant Early Termination Date. The day and time as of which those
quotations are to be obtained will be selected in good faith by the party obliged to make a
determination under Section 6(e), and, if each party is so obliged, after consultation with the
other. If more than three quotations are provided, the Market Quotation will be the arithmetic mean
of the quotations, without regard to the quotations having the highest and lowest values. If
exactly three such quotations are provided, the Market Quotation will be the quotation remaining
after disregarding the highest and lowest quotations. For this purpose, if more than one quotation
has the same highest value or lowest value, then one of such quotations shall be disregarded. If
fewer than three quotations are provided, it will be deemed that the Market Quotation in respect of
such Terminated Transaction or group of Terminated Transactions cannot be determined.



“Non-default Rate” means a rate per annum equal to the cost (without proof or evidence of any
actual cost) to the Non-defaulting Party (as certified by it) if it were to fund the relevant
amount.



“Non-defaulting Party” has the meaning specified in Section 6(a).



“Potential Event of Default” means any event which, with the giving of notice or the lapse of time
or both, would constitute an Event of Default.



“Reference Market-makers” means four leading dealers in the relevant market selected by the party
determining a Market Quotation in good faith (a) from among dealers of the highest credit standing
which satisfy all the criteria that such party applies generally at the time in deciding whether to
offer or to make an extension of credit and (b) to the extent practicable, from among such dealers
having an office in the same


city.



“Scheduled Payment Date” means a date on which a payment or delivery is to be made under Section
2(a)(i) with respect to a Transaction.



“Set-off” means set-off, offset, combination of accounts, right of retention or withholding or
similar right or requirement to which the payer of an amount under Section 6 is entitled or subject
(whether arising under





12





this Agreement, another contract, applicable law or otherwise) that is exercised by, or
imposed on, such payer.



“Settlement Amount” means, with respect to a party and any Early Termination Date, the sum of:—



(a) the Market Quotations (whether positive or negative) for each Terminated Transaction or group
of Terminated Transactions for which a Market Quotation is determined; and



(b) such party’s Loss (whether positive or negative and without reference to any Unpaid Amounts)
for each Terminated Transaction or group of Terminated Transactions for which a Market Quotation
cannot be determined or would not (in the reasonable belief of the party making the determination)
produce a commercially reasonable result.



“Specified Entity” has the meaning specified in the Schedule.



“Specified Indebtedness” means, subject to the Schedule, any obligation (whether present or future,
contingent or otherwise, as principal or surety or otherwise) in respect of borrowed money.



“Specified Transaction” means, subject to the Schedule, (a) any transaction (including an agreement
with respect thereto) now existing or hereafter entered into between one party to this Agreement
(or any Credit Support Provider of such party or any applicable Specified Entity of such party) and
the other party to this Agreement (or any Credit Support Provider of such other party or any
applicable Specified Entity of such other party) which is a rate swap transaction, basis swap,
forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or
equity index option, bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including any option with
respect to any of these transactions), (b) any combination of these transactions and (c) any other
transaction identified as a Specified Transaction in this Agreement or the relevant confirmation.



“Terminated Transactions” means with respect to any Early Termination Date (a) if resulting from a
Termination Event, all Affected Transactions and (b) if resulting from an Event of Default, all
Transactions (in either case) in effect immediately before the effectiveness of the notice
designating that Early Termination Date (or, if “Automatic Early Termination” applies, immediately
before that Early Termination Date).



“Termination Event” means an Illegality or, if specified to be applicable, a Credit Event Upon
Merger or an Additional Termination Event.



“Termination Rate” means a rate per annum equal to the arithmetic mean of the cost (without proof
or evidence of any actual cost) to each party (as certified by such party) if it were to fund or of
funding such amounts.



“Unpaid Amounts” owing to any party means, with respect to an Early Termination Date, the aggregate
of (a) in respect of all Terminated Transactions, the amounts that became payable (or that would
have become payable but for Section 2(a)(iii)) to such party under Section 2(a)(i) on or prior to
such Early Termination Date and which remain unpaid as at such Early Termination Date and (b) in
respect of each Terminated Transaction, for each obligation under Section 2(a)(i) which was (or
would have been but for Section 2(a)(iii)) required to be settled by delivery to such party on or
prior to such Early Termination Date and which has not been so settled as at such Early Termination
Date, an amount equal to the fair market value of that which was (or would have been) required to
be delivered as of the originally scheduled date for delivery, in each case together with (to the
extent permitted under applicable law) interest, in the currency of such amounts, from (and
including) the date such amounts or obligations were or would have been required to have been paid
or performed to (but excluding) such Early Termination Date, at the Applicable Rate. Such amounts
of interest will be calculated on the basis of daily compounding and the actual number of days
elapsed. The fair market value of any obligation referred to in clause (b) above shall be
reasonably determined



13





by the party obliged to make the determination under Section 6(e) or, if each party is so
obliged, it shall be the average of the fair market values reasonably determined by both parties.




IN WITNESS WHEREOF the parties have executed this document on the respective dates specified below
with effect from the date specified on the first page of this document.



	 	 	 
	NATIONAL CITY BANK

	 	G&E HEALTHCARE REIT CHESTERFIELD

REHAB HOSPITAL, LLC
	By: /s/ J. Andrew Dunham

Name: J. Andrew Dunham

Title: Senior Vice President

	 	By: /s/ Shannon K S Johnson

Name: Shannon K S Johnson

Title: Authorized Signatory

January 28, 2008






14




ISDA®




International Swaps and Derivatives Association, Inc.




SCHEDULE

to the

Master Agreement

dated as of December 20, 2007




Between National City Bank (“Party A”) and G & E Healthcare REIT Chesterfield Rehab Hospital,

LLC

(“Party B”).




PART I

Termination Provisions




(a) “Specified Entity” means in relation to Party A for the purpose of:



Section 5(a)(v),
None


Section 5(a)(vi),
None


Section 5(a)(vii),
None


Section 5(b)(ii),
None




in relation to Party B for the purpose of:



Section 5(a)(v),
None


Section 5(a)(vi),
None


Section 5(a)(vii),
None


Section 5(b)(ii),
None



(b) "Specified Transaction” will have the meaning specified in Section 12 of this Agreement.



(c) The "Cross Default” provisions of Section 5(a)(vi) will apply to Party A and Party B, but shall
exclude any




payment default that results solely from wire transfer difficulties or an error or omission
of an administrative or operational nature (so long as sufficient funds are available to the
relevant party on the relevant date) but only if payment is made within three business days
after such transfer difficulties have been corrected or the error or omission has been
discovered.



(d) "Specified Indebtedness” will have the meaning specified in Section 12 of this Agreement.



(e) "Threshold Amount” means:



for Party A: $10,000,000 (Ten Million
Dollars).


for Party B: $10,000 (Ten Thousand
Dollars).



(f) The "Credit Event Upon Merger” provisions of Section 5(b)(ii) will apply to Party A and
Party B.



(g) The "Automatic Early Termination” provision of Section 6(a) will not apply to Party A or
Party B.



(h) Payments on Early Termination. For the purpose of Section 6(e) of this Agreement:




(i) Loss will apply




(ii) The Second Method will apply.




	(i)	 	Additional Termination Event will apply. Each of the following shall constitute an Additional
Termination Event: (a) payment in full of all Credit Obligations and termination of (i) all
commitments of Party A to extend credit to Party B and (ii) all letters of credit issued by
Party A for the benefit of or at the request of Party B, and (b) upon written election of
Party A, the occurrence and continuation of a default by Party B under any agreement or
instrument related to any of the Credit Obligations. As used herein, the term “Credit
Obligations” means any and all loans, advances, indebtedness and other obligations of Party B
owed to Party A or any affiliate of Party A (collectively, for the purposes of this paragraph
“Party A”) of every kind and description, whether now existing or hereafter arising (including
those owed by Party B to others and acquired by Party A by purchase, assignment or otherwise),
and whether direct or indirect, primary or a guarantor, surety, absolute or contingent,
liquidated or unliquidated, matured or unmatured, whether or not secured by additional
collateral, and including, without limitation, all obligations of Party B to Party A in
connection with any letters of credit now or hereafter issued by Party A for the benefit or at
the request of Party B. For the purpose of these Additional Termination Events, Party B will
be the Affected Party.





PART 2

Agreement to Deliver Documents




For the purpose of Section 4(a) of this Agreement, Party A and Party B agree to deliver the
following documents:




	(a)	 	A certificate of an authorized officer of Party B evidencing the necessary corporate
authorizations, resolutions and approvals with respect to the execution, delivery
and performance of this Agreement and certifying the names, true signatures and authority of
the officer(s) signing this Agreement and executing Transactions thereunder.





(b) Quarterly and annual financial statements when requested by Party A.



PART 3

Miscellaneous




(a) Addresses for Notices. For the purpose of Section 10(a) of this Agreement:




Address for notices or communications to Party A:



	 	 	 	 	 
	Address:	 	1900 East Ninth Street, Cleveland, Ohio 44114
	Attention:

Facsimile No.:

	 	Jane Szoke LOC 2217

(216) 420-9514
	 	

Telephone No.: (216) 222-8247







Address for notices or communications to Party B:




Address: c/o Triple Net Properties, LLC, 1551 N. Tustin Ave., Suite 200, Santa Ana, CA 92705



	 	 	 	 	 
	Attention:	 	Stefan Oh, Vice President, Health Care Properties
	Facsimile No.:

	 	714-667-6860
	 	Telephone No.: 714-667-8252 x295






(b) Calculation Agent. The Calculation Agent is Party A.



(c) Credit Support Document.




As regards Party A: None.




As regards Party B, the following documents as they may be amended, restated, supplemented,
modified, renewed, replaced, consolidated, substituted or extended from time to time: (i)
Deed of Trust, Security Agreement, Assignment of Leases and Rents, and Fixture Filing dated
as of December 20, 2007 granted by Party B for the benefit of Party A; and (ii) any other
document which by its terms secures, guarantees or otherwise supports Party B’s obligations
under this Agreement from time to time, whether or not this Agreement, any Transaction, or
any type of Transaction entered into hereunder is specifically referenced or described in
any such document.




The Credit Support Documents (as amended from time to time) are incorporated herein and form
a part of this Agreement.



(d) Credit Support Provider.



As regards Party A:
None.



As regards Party B:
None.




	(e)	 	Governing Law. This Agreement will be governed by and construed in accordance with the laws
of the State of New York, without reference to choice of law doctrine,





(f) Definitions. Section 12 is modified as follows:




	 	(i)	 	“Default Rate” means Prime + 2%. “Prime” means the fluctuating rate per
annum which is publicly announced from time to time by National City Bank as
being its so-called “prime rate” or “base rate” thereafter in effect, with each
change in the prime rate automatically, immediately, and without notice
changing the prime rate thereafter applicable hereunder, it being acknowledged
that the prime rate is not necessarily the lowest rate of interest then
available from National City Bank on fluctuating-rate loans.	 





(g) Payments. Party A will make/receive payments to/from Party B by credit/debit to the account of




Party B as specified in each Transaction.



PART 4

Other Provisions




(a) Event of Default. Each Party agrees to notify the other party of the occurrence of any Event of
Default or




Potential Event of Default immediately upon learning of the occurrence thereof.



(b) Right To Set-off. Section 6(f) is added to the Master Agreement reading as follows:




	 	(i)	 	Set-off. Any amount (the “Early Termination Amount”) payable to one
party (the “Payee’”) by the other party (the “Payer”) under Section 6(e), in
circumstances where there is a Defaulting Party or one Affected Party in the
case where a Termination Event under Section 5(b)(iii) has occurred, will, at
the option of the party (“X”) other than the Defaulting Party or the Affected
Party (and without prior notice to the Defaulting Party or Affected Party), be
reduced by its set-off against any amount(s) (the “Other Agreement Amount”)
payable by the Payee to the Payer under any other agreement(s) between the
Payee and the Payer or instrument(s) or undertaking(s) issued or executed by
one party to, or in favor of, the other party (and the Other Agreement Amount
shall be discharged promptly and in all respects to the extent it is so
set-off), X will give notice to the other party of any set-off effected. under
this Section 6(f).	 






	 	(A)	 	If a Defaulting Party has a right to receive payment
from X and is in default under its obligations to an Affiliate of X,
then any right of the Affiliate of X to receive payment from the
Defaulting Party may be assigned to X (an “Assignment of Rights”), in
which case the Defaulting Party hereby consents to any such assignment
of the benefit of its obligations. X shall give prompt written notice
to the Defaulting Party of any Assignments of Rights by the Affiliate
of X to X pursuant to this provision.	 






	 	(B)	 	If X has a right to receive payment from the Defaulting
Party and the Defaulting Party has funds on deposit with, or otherwise
in the possession of an Affiliate of X {the “Deposit Funds”), then the
Defaulting Party consents to payment over to X. by the Affiliate of X
all of such Deposit Funds in an amount not to exceed the payment due
from Defaulting Party to X under this Agreement. The payment of Deposit
Funds pursuant to this provision shall be immediately paid upon notice
by X to the Affiliate of X that a payment is due under this provision
and the amount of such payment. X shall give prompt written notice to
the Defaulting Party of any payment to X by an Affiliate of X pursuant
to this provision.	 





If the Early Termination Amount and/or Other Agreement Amount has been
applied under clause (i) above to reduce or eliminate the obligations of the
Defaulting Party to the Affiliate of X, such application shall reduce or
eliminate the Early Termination Amount and/or Other Agreement Amount. If the
Deposit Funds have been applied under clause (ii) above to reduce or
eliminate the obligations of the Defaulting Party to X, such application
shall reduce or eliminate the Early Termination Amount and/or Other
Agreement Amount



If an obligation is unascertained, X may in good faith estimate that
obligation and set-off in respect of the estimate, subject to the relevant
party accounting to the other when the obligation is ascertained.



Nothing in this Section 6(f) shall be effective to create a charge or other
security interest. This Section 6(f) shall be without prejudice and in
addition to any right of set-off, combination of accounts, lien or other
right to which any party is at any time otherwise entitled (whether by
operation of law, contract or otherwise).




	(c)	 	Disclaimer: In entering into this agreement, Party B understands that there is no assurance
as to the direction in which interest rates in financial markets may move in the future and
that Party A makes no covenant, representation, or warranty in this regard or in regard to the
suitability of the terms of the Agreement or any Transaction to the particular needs and
financial situation of Party B. Party B represents, which representation shall be deemed
repeated with respect to and at the time of each Transaction, that it has had the opportunity,
independently of Party A and Party A’s affiliates, officers, employees, and agents, to consult
its own financial advisors and has determined that it is in Party B’s interest to enter into
the Agreement and any Transaction.






	(d)	 	Recording of Conversations. Each party to this Agreement acknowledges and agrees to the tape
recording of conversations between trading and marketing personnel of the parties to this
Agreement whether by one or other or both of the parties or their agents, and that any such
tape recordings may be submitted in evidence in any proceedings relating to this Agreement.






	(e)	 	Pari Passu: It is the intent of the parties hereto that the obligations arising pursuant to
the Transaction shall be treated pari passu with all senior indebtedness, liabilities and
obligations of each such party.






	(f)	 	Additional Representations and Warranties. The specified party represents and warrants to the
other party (which representations and warranties will be deemed to be repeated on each date
on which a Transaction is entered into) as follows:






	 	(i)	 	In the case of Party A, Party A is a national banking association duly
organized and validly existing under the federal laws of the United States of America.






	 	(ii)	 	In the case of each party:






	 	(A)	 	It qualifies as an “eligible swap participant” under 17 C.F.R.
§ 35.1.






	 	(B)	 	Such party is entering into this Agreement, including all
Transactions hereunder, in connection with a line of its business.






(iii) In the case of each party:




	 	(A)	 	It is acting for its own account, and it has made its own
independent decisions to enter into this Agreement and each Transaction and as
to whether this Agreement and each Transaction is appropriate or proper for it
based upon its own judgment and upon advice from such advisers as it has deemed
necessary. it is not relying on any communication (written or oral) of the
other party as investment advice or as a recommendation to enter into this
Agreement or any Transaction; it being understood that information and
explanations related to the terms and conditions of this Agreement or any
Transaction shall not be considered investment advice or a recommendation to
enter into this Agreement or such Transaction. No communication (written or
oral) received from the other party shall be deemed to be an assurance or
guarantee as to the expected results of this Agreement or any Transaction.






	 	(B)	 	It is capable of assessing the merits of and understanding (on
its own behalf or through independent professional advice), and understands and
accepts, the terms, conditions and risks of this Agreement and each
Transaction. It is also capable of assuming, and assumes, the risks of this
Agreement and each Transaction.






	 	(C)	 	The other party is not acting as a fiduciary for or an adviser
to it in respect of this Agreement or any Transaction.






	 	(iv)	 	In the case of each party, such party intends and acknowledges that this
Agreement, including all Transactions hereunder, shall be commercial transactions and
shall not be transactions in “securities” for purposes of any securities law (including
without limitation the Securities Exchange Act of 1934, as amended, and the Securities
Act of 1933, as amended).






	 	(v)	 	Party B represents to Party A (which representation is deemed to be repeated by
Party B on each date on which a Transaction is entered into) that it is entering into
the Transaction in connection with the conduct of its business or to manage the risk of
an asset owned or incurred, or reasonably likely to be owned or incurred in the conduct
of its business.






	(g)	 	Incorporation by Reference of Terms of Credit Support Documents. The covenants, terms and
provisions, including all representations and warranties of Party B, contained in the Credit
Support Documents, as in effect as of the date of this Agreement, are hereby incorporated by
reference in, and made a part of, this Agreement to the same extent as if such covenants,
terms and provisions were set forth in full herein. Party B hereby agrees that, during the
period commencing with the date of this Agreement through and including such date on which all
of Party B’s obligations under this Agreement are fully performed, Party B will: (i) observe,
perform and fulfill each and every such covenant, term and provision applicable to Party B, as
such covenants, terms and provisions may be amended from time to time after the date of this
Agreement and (ii) deliver to Party A at the address for notices to Party A provided in Part 3
each notice, document, certificate or other writing as Party B is obligated to furnish to any
other party to the Credit Support Documents. In the event the Credit Support Documents
terminate or become no longer binding on Party B prior to the termination of this Agreement,
such covenants, terms and provisions (other than those requiring payments in respect of
amounts owed under the Credit Support Documents) will remain in full force and effect for
purposes of this Agreement as though set forth in full herein until the date on which all of
Party B’s obligations under this Agreement are fully performed and this Agreement is
terminated.






	(h)	 	Waiver of Right to Trial by Jury. Each party hereby irrevocably waives, to the fullest
extent permitted by applicable law, any right it may have to a trial by jury in respect of
any suit, action or legal proceeding arising out of or relating to this Agreement or any
transaction contemplated hereby.	 





	 	 	 
	 	 	G&E HEALTHCARE REIT CHESTERFIELD REHAB HOSPITAL, LLC
	NATIONAL CITY BANK

By: /s/ J. Andrew Dunham

J. Andrew Dunham

Sr. Vice President

	 	By: /s/ Shannon K S Johnson

Shannon K S Johnson

Authorized Signatory

Date: January 28, 2008







15