SECOND
AMENDED AND RESTATED








MASTER
LEASE AGREEMENT








BETWEEN








HEALTH
CARE REIT, INC.








HCRI
COLD SPRING PROPERTIES, LLC








HCRI
LOUISIANA PROPERTIES, L.P.








AND








EMERITUS
CORPORATION

















OCTOBER 17,
2008








TABLE OF
CONTENTS





SECTION
            
            PAGEARTICLE
      1:
            LEASED
      PROPERTY, TERM AND DEFINITIONS
            21.1
            Leased
      Property
            21.2
            Indivisible
      Lease.
            21.3
            Term
            21.4
            Definitions
            31.5
            Landlord
      As Agent
            131.6
            Rocky
      Hill Ground Lease
            131.6.1
            General
            131.6.2
            Landlord
      Acceptance of Rocky Hill Ground Lease Obligations
            131.6.3
            Compliance
      with Rocky Hill Ground Lease; Rent Payments Thereunder
            131.6.4
            Termination
      or Expiration of Rocky Hill Ground Lease
            141.6.5
            Remedies
            141.7
            Termination
      of the Summerville Lease
            14ARTICLE
      2:
            RENT
            142.1
            Base
      Rent
            142.2
            Base
      Rent Adjustments.
            152.2.1
            Base
      Rent Adjustments - Additional Investment Advances
            152.3
            Additional
      Rent
            152.3.1
            General
      Additional Rent
            152.4
            Place
      of Payment of Rent
            152.5
            Net
      Lease
            152.6
            No
      Termination, Abatement, Etc
            152.7
            Transaction
      Fee
            16ARTICLE
      3:
            IMPOSITIONS
      AND UTILITIES
            163.1
            Payment
      of Impositions
            163.2
            Definition
      of Impositions
            173.3
            Escrow
      of Impositions
            173.4
            Utilities
            183.5
            Discontinuance
      of Utilities
            183.6
            Business
      Expenses
            183.7
            Permitted
      Contests
            18ARTICLE
      4:
            INSURANCE
            194.1
            Property
      Insurance
            194.2
            Liability
      Insurance
            204.3
            Builder's
      Risk Insurance
            204.4
            Insurance
      Requirements
            214.5
            Replacement
      Value
            214.6
            Blanket
      Policy
            21











SECTION
            
            PAGE4.7
            No
      Separate Insurance
            224.8
            Waiver
      of Subrogation
            224.9
            Mortgages
            224.10
            Escrows
            22ARTICLE
      5:
            INDEMNITY
            225.1
            Tenant's
      Indemnification
            225.1.1
            Notice
      of Claim
            235.1.2
            Survival
      of Covenants
            235.1.3
            Reimbursement
      of Expenses
            235.2
            Environmental
      Indemnity; Audits
            235.3
            Limitation
      of Landlord's Liability
            24ARTICLE
      6:
            USE
      AND ACCEPTANCE OF PREMISES
            246.1
            Use
      of Leased Property
            246.2
            Acceptance
      of Leased Property
            246.3
            Conditions
      of Use and Occupancy
            256.4
            Tenant
      Solely Responsible
            256.5
            Opportunity
      to Inspect
            25ARTICLE
      7:
            MAINTENANCE
      AND MECHANICS' LIENS
            257.1
            Maintenance
            257.2
            Required
      Alterations
            267.3
            Mechanic's
      Liens
            267.4
            Replacements
      of Fixtures and Landlord's Personal Property
            26ARTICLE
      8:
            DEFAULTS
      AND REMEDIES
            278.1
            Events
      of Default
            278.2
            Remedies
            298.3
            Right
      of Set?Off
            328.4
            Performance
      of Tenant's Covenants
            328.5
            Late
      Payment Charge
            328.6
            Default
      Rent
            338.7
            Attorneys'
      Fees
            338.8
            Escrows
      and Application of Payments
            338.9
            Remedies
      Cumulative
            338.10
            Waivers
            348.11
            Obligations
      Under the Bankruptcy Code
            348.12
            California
      Remedies
            348.12.1
            Remedies
            348.12.2
            Damages
            35ARTICLE
      9:
            DAMAGE
      AND DESTRUCTION
            369.1
            Notice
      of Casualty
            369.2
            Substantial
      Destruction
            369.3
            Partial
      Destruction
            379.4
            Restoration
            37





(ii)





SECTION
            
            PAGE9.5
            Insufficient
      Proceeds
            389.6
            Not
      Trust Funds
            389.7
            Landlord's
      Inspection
            389.8
            Landlord's
      Costs
            389.9
            No
      Rent Abatement
            38ARTICLE
      10:
            CONDEMNATION
            3910.1
            Total
      Taking
            3910.2
            Partial
      Taking
            3910.3
            Condemnation
      Proceeds Not Trust Funds
            39ARTICLE
      11:
            TENANT'S
      PROPERTY
            4011
            Tenant's
      Property
            4011
            Requirements
      for Tenant's Property
            40ARTICLE
      12:
            RENEWAL
      OPTIONS
            4112.1
            Renewal
      Options
            4112.2
            Effect
      of Renewal
            41ARTICLE
      13:
            RIGHT
      OF FIRST OPPORTUNITY AND OPTION TO PURCHASE
            4213.1
            Right
      of First Opportunity
            4213.1.1
            Fair
      Market Value
            4313.2
            Option
      to Purchase
            4513.2.1
            Option
      Price
            4513.2.2
            Summerville
      Fair Market Value
            4613.2.3
            Closing
            4713.2.4
            Failure
      to Close Option
            4713.2.5
            Failure
      to Exercise Option to Purchase
            4713.2.6
            Early
      Option to Purchase Dayton Facility
            47ARTICLE
      14:
            NEGATIVE
      COVENANTS
            4714.1
            No
      Debt
            4714.2
            No
      Liens
            4714.3
            No
      Guaranties
            4814.4
            No
      Transfer
            4814.5
            No
      Dissolution
            4814.6
            Subordination
      of Payments to Affiliates
            4814.7
            Change
      of Location or Name
            48ARTICLE
      15:
            AFFIRMATIVE
      COVENANTS
            4915.1
            Perform
      Obligations
            4915.2
            Proceedings
      to Enjoin or Prevent Construction
            4915.3
            Documents
      and Information
            4915.3.1
            Furnish
      Documents
            4915.3.2
            Furnish
      Information
            4915.3.3
            Further
      Assurances and Information
            50





(iii)





SECTION
            
            PAGE15.3.4
            Material
      Communications
            5015.3.5
            Requirements
      for Financial Statements
            5015.4
            Compliance
      With Laws
            5015.5
            Broker's
      Commission
            5115.6
            Existence
      and Change in Ownership
            5115.7
            Financial
      Covenants
            5115.7.1
            Definitions
            5115.7.2
            Coverage
      Ratio
            5115.8
            Facility
      Licensure and Certification
            5215.8.1
            Notice
      of Inspection
            5215.8.2
            Material
      Deficiencies
            5215.9
            Transfer
      of License and Facility Operations
            5215.9.1
            Licensure
            5215.9.2
            Facility
      Operations
            5215.10
            Bed
      Operating Rights
            5315.11
            Power
      of Attorney
            53ARTICLE
      16:
            ALTERATIONS,
      CAPITAL IMPROVEMENTS, AND SIGNS
            5416.1
            Prohibition
      on Alterations and Improvements
            5416.2
            Approval
      of Alterations
            5416.3
            Permitted
      Alterations
            5416.4
            Requirements
      for Permitted Alterations
            5416.5
            Ownership
      and Removal of Permitted Alterations
            5516.6
            Minimum
      Qualified Capital Expenditures
            5516.7
            Signs
            55ARTICLE
      17:
            CONTINGENT
      PAYMENT
            5617.1
            Contingent
      Payment
            56ARTICLE
      18:
            ASSIGNMENT
      AND SALE OF LEASED PROPERTY
            5618.1
            Prohibition
      on Assignment and Subletting
            5618.2
            Requests
      for Landlord's Consent to Assignment, Sublease or Management
      Agreement
            5618.3
            Agreements
      with Residents
            5718.4
            Sale
      of Leased Property
            5718.5
            Assignment
      by Landlord
            58ARTICLE
      19:
            HOLDOVER
      AND SURRENDER
            5819.1
            Holding
      Over
            5819.2
            Surrender
            5819.3
            Indemnity
            58ARTICLE
      20:
            [RESERVED]
            59ARTICLE
      21:
            QUIET
      ENJOYMENT, SUBORDINATION, ATTORNMENT AND ESTOPPEL
    CERTIFICATES
            5921.1
            Quiet
      Enjoyment
            59





(iv)





SECTION
            
            PAGE21.2
            Subordination
            5921.3
            Attornment
            5921.4
            Estoppel
      Certificates
            60ARTICLE
      22:
            REPRESENTATIONS
      AND WARRANTIES
            6022.1
            Organization
      and Good Standing
            6022.2
            Power
      and Authority
            6122.3
            Enforceability
            6122.4
            Government
      Authorizations
            6122.5
            Reserved
            6122.6
            Condition
      of Facility
            6122.7
            Compliance
      with Laws
            6122.8
            No
      Litigation
            6122.9
            Consents
            6222.10
            No
      Violation
            6222.11
            Reports
      and Statements
            6222.12
            ERISA
            6222.13
            Chief
      Executive Office
            6322.14
            Other
      Name or Entities
            6322.15
            Parties
      in Possession
            6322.16
            Access
            6322.17
            Utilities
            6322.18
            Condemnation
      and Assessments
            6322.19
            Zoning
            6322.20
            Pro
      Forma Statement
            6422.21
            Environmental
      Matters
            6422.22
            Leases
      and Contracts
            6422.23
            No
      Default
            6422.24
            Tax
      Status
            65ARTICLE
      23:
            RESERVED
            65ARTICLE
      24:
            SECURITY
      INTEREST
            6524.1
            Collateral
            6524.2
            Additional
      Documents
            6624.3
            Notice
      of Sale
            6624.4
            Recharacterization
            66ARTICLE
      25:
            MISCELLANEOUS
            6625.1
            Notices
            6625.2
            Advertisement
      of Leased Property
            6625.3
            Entire
      Agreement
            6725.4
            Severability
            6725.5
            Captions
      and Headings
            6725.6
            Governing
      Law
            6725.7
            Memorandum
      of Lease
            6725.8
            Waiver
            67





(v)







SECTION
            
            PAGE25.9
            Binding
      Effect
            6725.10
            No
      Offer
            6725.11
            Modification
            6725.12
            Landlord's
      Modification
            6825.13
            No
      Merger
            6825.14
            Laches
            6825.15
            Limitation
      on Tenant's Recourse
            6825.16
            Construction
      of Lease
            6825.17
            Counterparts
            6825.18
            Custody
      of Escrow Funds
            6925.19
            Landlord's
      Status as a REIT
            6925.20
            Exhibits
            6925.21
            WAIVER
      OF JURY TRIAL
            6925.22
            CONSENT
      TO JURISDICTION
            6925.23
            Attorney's
      Fees and Expenses
            7025.24
            Survival
            7025.25
            Time
            7025.26
            Subtenant
            70







SCHEDULE 1:
            INITIAL
      RENT SCHEDULE




SCHEDULE 2:
            TRANCHE 2
      FACILITIES




EXHIBIT A:
            LEGAL
      DESCRIPTIONS




EXHIBIT B:
            PERMITTED
      EXCEPTIONS




EXHIBIT C:
            FACILITY
      INFORMATION




EXHIBIT D:
            LANDLORD’S
      PERSONAL PROPERTY




EXHIBIT E:
            DOCUMENTS
      TO BE DELIVERED




EXHIBIT F:
            TENANT’S
      CERTIFICATE AND FACILITY FINANCIAL
REPORTS




EXHIBIT G:
            GOVERNMENT
      AUTHORIZATIONS TO BE OBTAINED; ZONING
PERMITS




EXHIBIT H:
            PENDING
      LITIGATION




EXHIBIT I:
            LIST
      OF LEASES AND CONTRACTS




EXHIBIT J:
            WIRE
      TRANSFER INSTRUCTIONS




(vi)


SECOND
AMENDED AND RESTATED MASTER LEASE AGREEMENT








This Second Amended and Restated Master
Lease Agreement (“Lease”) is made effective as of October 17, 2008 (the
“Amended Effective Date”) by and among Health Care REIT, Inc., a
corporation organized under the laws of the State of Delaware (“HCRI” and a
“Landlord” as further defined in §1.4 below), having its principal office
located at One SeaGate, Suite 1500, P.O. Box 1475, Toledo,
Ohio 43603-1475, HCRI Cold Spring Properties,
LLC, a limited liability company organized under the laws of the State of
Delaware (“HCRI-Cold Spring” and a “Landlord” as further defined in §1.4 below),
having its principal office located at One SeaGate, Suite 1500, P.O.
Box 1475, Toledo, Ohio 43603-1475, HCRI Louisiana Properties,
L.P., a limited partnership organized under the laws of the State of
Delaware (“HCRI-LA” and a “Landlord” as further defined in §1.4 below), having
its principal office located at One SeaGate, Suite 1500, P.O.
Box 1475, Toledo, Ohio 43603-1475, and Emeritus Corporation, a
corporation organized under the laws of the State of Washington (“Tenant”),
having its chief executive office located at 3131 Elliott Avenue,
Suite 500, Seattle, Washington 98121.




R
E C I T A L S




A.  Effective
as of March 28, 2002, HCRI and HCRI Mississippi, LLC, as landlord, and
Tenant entered into a certain Master Lease Agreement (“Master
Lease”).




B.  Effective
as of September 30, 2003, HCRI, HCRI Mississippi, LLC, HCRI Massachusetts
Trust II, and HCRI Texas Properties, Ltd., as Landlord, and Tenant entered into
a certain Amended and Restated Master Lease Agreement (as amended, the “Amended
and Restated Master Lease”) as amended by a certain First Amendment to Amended
and Restated Master Lease Agreement (“First Amendment”) dated as of
June 22, 2005, as further amended by a certain Amendment of Master Lease
and Termination of Memorandum of Lease (“Second Amendment”) dated as of
August 2, 2007, which removed the Fort Myers, Florida facility, which was
sold to Tenant, as further amended by a certain Third Amendment to Amended and
Restated Master Lease Agreement (“Third Amendment”) dated as of June 30,
2008, which, among other things, [i] removed eighteen facilities known as
the Tranche I Facilities, as defined in and pursuant to a certain Asset
Purchase Agreement (“Asset Purchase Agreement”) by and among HCRI and certain
affiliates (collectively, “Seller”) and Tenant dated as of June 9, 2008,
and [ii] added two facilities pursuant to a certain Master Lease Roll Up
Agreement dated on or about June 30, 2003.




C.  Effective
as of March 1, 2007, HCRI, HCRI-LA and Senior Living Properties, LLC,
entered into a certain Amended and Restated Master Lease Agreement (“Summerville
Lease”) for the Summerville Facilities (hereinafter defined).




D.  Pursuant
to the Asset Purchase Agreement, Seller agreed to convey to Tenant certain
facilities, including those listed in Schedule 2 hereto (the
“Tranche 2 Facilities”), at a closing (“Tranche 2 Closing”) to occur
no earlier than October 1, 2008, and no later than December 31,
2008.  Upon the Tranche 2 Closing, the Tranche 2 Facilities
are to be removed from the Lease.







E.  Pursuant
to the Third Amendment, Landlord and Tenant agreed to amend the Lease to add the
Summerville Facilities to the Lease at the time of the Tranche 2
Closing.




F.  The
Tranche 2 Closing occurred as of October 17, 2008.




G.  Landlord
and Tenant desire to amend the Amended and Restated Master Lease [i] to
remove the Tranche 2 Facilities, [ii] to add the three Summerville
Facilities pursuant to the Third Amendment, and [iii] to reflect the
changes made in the First Amendment, Second Amendment and Third
Amendment.  This Lease amends, restates and replaces the Amended and
Restated Master Lease in its entirety.




H.  Landlord
desires to lease the Leased Property, as hereinafter defined, to Tenant and
Tenant desires to lease the Leased Property from Landlord upon the terms set
forth in this Lease.




NOW, THEREFORE, Landlord and Tenant
agree as follows:




ARTICLE
1:  LEASED PROPERTY, TERM AND DEFINITIONS




1.1           Leased
Property.  Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord the Leased Property, subject, however, to the Permitted
Exceptions and subject to the terms and conditions of this Lease.




1.2           Indivisible
Lease.  This Lease constitutes one indivisible lease of the
entire Leased Property.  The Leased Property constitutes one economic
unit and the Base Rent and all other provisions, including, but not limited to,
the provisions concerning the Contingent Payment Advance, have been negotiated
and agreed to based on a lease of all of the Leased Property as a single,
composite, inseparable transaction and would have been materially different had
separate leases or a divisible lease been intended.  Except as
expressly provided herein for specific, isolated purposes (and then only to the
extent expressly otherwise stated), all provisions of this Lease shall apply
equally and uniformly to all the Leased Property as one unit and any Event of
Default under this Lease is an Event of Default as to the entire Leased
Property.  The parties intend that the provisions of this Lease shall
at all times be construed, interpreted and applied so as to carry out their
mutual objective to create a single indivisible lease of all the Leased Property
and, in particular but without limitation, that for purposes of any assumption,
rejection or assignment of this Lease under the Bankruptcy Code, this is one
indivisible and non-severable lease and executory contract dealing with one
legal and economic unit which must be assumed, rejected or assigned as a whole
with respect to all (and only all) the Leased Property covered
hereby.  The parties agree that the existence of more than one
Landlord under this Lease does not affect the indivisible, non-severable nature
of this Lease. The parties may amend this Lease from time to time to include one
or more additional Facility Properties as part of the Leased Property and such
future addition to the Leased Property shall not in any way change the
indivisible and non-severable nature of this Lease and all of the foregoing
provisions shall continue to apply in full force.




1.3           Term.  The
initial term (“Initial Term”) of this Lease commenced on the Effective Date and
expires at 12:00 Midnight Eastern Time on September 30, 2018
(the




2


“Expiration
Date”); provided, however, that Tenant has an option to renew the Lease pursuant
to Article 12.




1.4           Definitions.  Except
as otherwise expressly provided, [i] the terms defined in this section have
the meanings assigned to them in this section and include the plural as well as
the singular; [ii] all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted accounting
principles as of the time applicable; and [iii] the words “herein”,
“hereof”, and “hereunder” and similar words refer to this Lease as a whole and
not to any particular section.




“ADA” means the federal statute
entitled Americans with Disabilities Act, 42 U.S.C. §12101, et seq.




“Affiliate”
means any person, corporation, partnership, limited liability company, trust, or
other legal entity that, directly or indirectly, controls, or is controlled by,
or is under common control with Tenant.  “Control” (and the
correlative meanings of the terms “controlled by” and “under common control
with”) means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such entity.  An
Affiliate of Tenant shall specifically exclude [i] Saratoga
Partners IV, L.P. (“Saratoga”); [ii] Daniel R. Baty;
[iii] Columbia Pacific Management, Inc.; [iv] Apollo Advisors, Inc.;
and [v] any Affiliate of any of the entities listed in clauses [i]
through [iv].




“Affiliate
Lease” means each lease now or hereafter made between Landlord or any Landlord
Affiliate and Tenant or any Affiliate (except this Lease), as amended, modified,
extended or renewed from time to time.




“Affiliate Tenant” means each tenant
under an Affiliate Lease.




“Amended
Commencement Date” means the Amended Effective Date if such date is the first
day of a month, and if it is not, the first day of the first month following the
Amended Effective Date.




“Amended Effective Date” means the date
of this Lease.




“Amended Effective Date Landlord” means
individually or collectively HCRI, HCRI-Cold Spring and HCRI-LA.




“Annual Company Budget” means Company’s
projection of its financial statement for the next fiscal year (or the 12-month
rolling forward period, if applicable), which shall include the balance sheet,
statement of income, statement of cash flows, statement of shareholders’ equity
and statement of capital expenditures for the applicable period.




“Annual Facility Budget” means Tenant’s
projection of the Facility Financial Statement for the next fiscal year (or the
12-month rolling forward period, if applicable).




“Annual Financial Statements” means
[i] for Tenant, an audited balance sheet, statement of income, and
statement of cash flows for the most recent fiscal year on an
individual




3


facility
and consolidated basis and [ii] for each Facility, an unaudited Facility
Financial Statement for the most recent fiscal year.




“Average Daily Census” means the number
determined by dividing the total resident days for a Facility during a specific
month by the actual number of days contained in that month.




“Bankruptcy Code” means the United
States Bankruptcy Code set forth in 11 U.S.C. §101 et. seq., as
amended from time to time.




“Base Price” means an amount equal to
the greater of [i] Total Investment Amount; or [ii] the sum of
[a] the Total Investment Amount plus [b] 50% of the difference between
the Fair Market Value at the time of the option exercise and the sum of
[I] the Investment Amount and [II] $25,800,000.00 less any Contingent
Payment Advance.




“Base Rent” has the meaning set forth
in §2.1, as increased from time to time pursuant to §2.2.




“Business Day” means any day other than
a Saturday, Sunday, or national holiday.




“CERCLA” means the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended from
time to time.




“Closing” means the closing of the
lease of the Leased Property to Tenant.




“Collateral” has the meaning set forth
in §24.1.




“Commencement Date” means April 1,
2002.




“Commitment” means the Commitment
Letter for the Lease dated August 15, 2003 as modified by the Amended and
Restated Project Approval Letter dated April 27, 2005.




“Company” means Tenant.




“Contingent Payment Advance” means any
advance of funds by Landlord to Tenant pursuant to Article 17.




“Contingent Payment Amount” means any
payment by Landlord pursuant to the terms of this Lease.




“CPI” means the United States
Department of Labor, Bureau of Labor Statistics Revised Consumer Price Index for
All Urban Consumers (1982-1984=100), U.S. City Average, All Items, or, if that
index is not available at the time in question, the index designated by such
Department as the successor to such index, and if there is no index so
designated, an index for an area in the United States that most closely
corresponds to the entire United States, published by such Department, or if
none, by any other instrumentality of the United States.




4







“Dayton Facility” means Summerville at
Dayton in Dayton, Ohio.




“Default Rent” has the meaning set
forth in §8.6.




“Disbursing Agreement” means any
Construction Disbursing Agreement between Landlord and Tenant setting forth the
terms and conditions pursuant to which Landlord shall make Contingent Payments
to or for the benefit of Tenant for certain Project Improvements and any
amendments thereto or substitutions and replacements therefore.




“Early Option” has the meaning set
forth in §13.2.6.




“Early Option Price” has the meaning
set forth in §13.2.6.




“Effective Date” means March 28,
2002.




“Environmental Laws” means all federal,
state, and local laws, ordinances and policies the purpose of which is to
protect human health and the environment, as amended from time to time,
including, but not limited to, [i] CERCLA; [ii] the Resource
Conservation and Recovery Act; [iii] the Hazardous Materials Transportation
Act; [iv] the Clean Air Act; [v] Clean Water Act; [vi] the Toxic
Substances Control Act; [vii] the Occupational Safety and Health Act;
[viii] the Safe Drinking Water Act; and [ix] analogous state laws and
regulations.




“Event of Default” has the meaning set
forth in §8.1.




“Expiration Date” has the meaning set
forth in §1.3.




“Facility” means each facility located
on a portion of the Land, including the Facility Property associated with such
Facility.  References in this Lease to “the Facility” shall mean each
Facility individually unless expressly stated otherwise.




“Facility Financial Statement” means a
financial statement for each Facility which shall include the balance sheet,
statement of income, statement of cash flows, statement of shareholders’ equity,
occupancy census data (including payor mix), statement of capital expenditures
and a comparison of the actual financial data versus the Annual Facility Budget
for the applicable period.




“Facility Name” means the name under
which a Facility has done business during the Term.  The Facility Name
in use by each Facility on the Amended Effective Date is set forth on the
attached Exhibit C.




“Facility Property” means the portion
of the Land on which a Facility is located, the legal description of which is
set forth beneath the applicable Facility Name on Exhibit A, the
Improvements on such portion of the Land, the Related Rights with respect to
such portion of the Land, and Landlord’s Personal Property with respect to such
Facility.




“Facility State” means the State in
which a respective Facility is located.









5


“Facility
States” means, collectively, the States in which the Leased Property is
located.




“Facility Uses” means the uses relating
to the operation of a Facility as a facility of the type and operating the
number of beds and units set forth on Exhibit C with respect to such
Facility.




“Fair Market Value” has the meaning set
forth in §13.1.1.




“Financial Statements” means
[i] the annual, quarterly and year to date financial statements of Tenant;
and [ii] any operating statements that were submitted to Landlord prior to
the Amended Effective Date.




“Fixtures” means all permanently
affixed equipment, machinery, fixtures and other items of real and/or personal
property (excluding Landlord’s Personal Property), including all components
thereof, now and hereafter located in, on or used in connection with, and
permanently affixed to or incorporated into the Improvements, including, without
limitation, all furnaces, boilers, heaters, electrical equipment, heating,
plumbing, lighting, ventilating, refrigerating, incineration, air and water
pollution control, waste disposal, air-cooling and air-conditioning systems and
apparatus, sprinkler systems and fire and theft protection equipment, built-in
oxygen and vacuum systems, towers and other devices for the transmission of
radio, television and other signals, all of which, to the greatest extent
permitted by law, are hereby deemed by the parties hereto to constitute real
estate, together with all replacements, modifications, alterations and additions
thereto.




“General Additional Rent” has the
meaning set forth in §2.3.1.




“Government Authorizations” means all
permits, licenses, approvals, consents, and authorizations required to comply
with all Legal Requirements, including, but not limited to, [i] zoning
permits, variances, exceptions, special use permits, conditional use permits,
and consents; [ii] the permits, licenses, provider agreements and approvals
required for licensure and operation of each Facility in accordance with its
respective Facility Uses and, if applicable, certified as a provider under the
federal Medicare and state Medicaid programs; [iii] environmental,
ecological, coastal, wetlands, air, and water permits, licenses, and consents;
[iv] curb cut, subdivision, land use, and planning permits, licenses,
approvals and consents; [v] building, sign, fire, health, and safety
permits, licenses, approvals, and consents; and [vi] architectural reviews,
approvals, and consents required under restrictive covenants.




“Guarantor” means Summerville at
Kenner, L.L.C., Summerville at Dayton LLC, and Summerville at Outlook Manor LLC,
individually and collectively.




“Guaranty” means the Unconditional and
Continuing Lease Guaranty dated as of October 17, 2008, executed by
Summerville Senior Living, Inc., Summerville at Kenner, L.L.C., Summerville at
Dayton LLC, and Summerville at Outlook Manor LLC, as guarantor, in favor of the
Amended Effective Date Landlord, to guarantee payment and performance of the
Lease Obligations and any amendments thereto or substitutions or replacements
therefor.




6


“Hazardous Materials” means any
substance [i] the presence of which poses a hazard to the health or safety
of persons on or about the Land, including, but not limited to, asbestos
containing materials; [ii] which requires removal or remediation under any
Environmental Law, including, without limitation, any substance which is toxic,
explosive, flammable, radioactive, or otherwise hazardous; or [iii] which
is regulated under or classified under any Environmental Law as hazardous or
toxic, including, but not limited to, any substance within the meaning of
“hazardous substance”, “hazardous material”, “hazardous waste”, “toxic
substance”, “regulated substance”, “solid waste”, or “pollutant” as defined in
any Environmental Law.




“HCRI” means Health Care REIT, Inc., a
corporation organized under the laws of the State of Delaware.




“HCRI Landlord” means HCRI-Cold
Spring and HCRI-LA.




“HIPDB” means the Healthcare Integrity
and Protection Data Bank maintained by the Department of Health and Human
Services.




“Impositions” has the meaning set forth
in §3.2.




“Improvements” means all buildings,
structures, Fixtures and other improvements of every kind on any portion of the
Land, including, but not limited to, alleys, sidewalks, utility pipes, conduits
and lines (on-site and off-site), parking areas and roadways appurtenant to such
buildings and structures, now or hereafter situated upon any portion of the
Land.




“Initial Term” has the meaning set
forth in §1.3.




“Investment Advance” means any advance
of funds by Landlord to Tenant pursuant to the terms of this Lease.




“Investment Advance Amount” means the
amount of any Investment Advance.




“Investment Amount” is an aggregate
concept and means the sum of the Investment Advance Amounts outstanding at the
applicable time.  As of the Amended Effective Date, the Investment
Amount is as indicated on the Rent Schedule attached as Schedule 1
hereto.




“Land” means the real property
described in Exhibit A attached hereto.




“Landlord” means each Amended Effective
Date Landlord during the time period that such entity is the fee owner of any
portion of the Land or, in the case of the Rocky Hill Facility, during the time
period that such entity is the tenant under the Rocky Hill Ground Lease and is
the fee owner of the improvements located on the Rocky Hill Land.  If
an Amended Effective Date Landlord is no longer a fee owner of the Land or a
tenant under the Rocky Hill Ground Lease, as applicable, then from and after
that date, that entity will no longer be a Landlord under the terms hereof and
its successor (whether by assignment or by operation of law) will be a Landlord
under the terms hereof without the need for any amendment to this
document.




7


“Landlord Affiliate” means any person,
corporation, partnership, limited liability company, trust, or other legal
entity that, directly or indirectly, controls, or is controlled by, or is under
common control with Landlord.  “Control” (and the correlative meanings
of the terms “controlled by” and “under common control with”) means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such entity.




“Landlord’s Personal Property” means
all Personal Property owned by Landlord on the Amended Effective Date and
located at the Facility, including, without limitation, all personal property
listed on the attached Exhibit D, together with any and all replacements
thereof, and all Personal Property that pursuant to the terms of this Lease
becomes the property of Landlord during the Term.




“Lease” means this Second Amended and
Restated Master Lease Agreement, as further amended and/or restated from time to
time.




“Lease Documents” means this Lease and
all documents executed by Landlord and Tenant relating to this Lease or the
Facility.




“Lease Payments” means the sum of the
Base Rent payments (as increased from time to time) for the applicable
period.




“Lease Year” means each consecutive
period of 365 or 366 days throughout the Term.  The first Lease
Year commences on the Commencement Date and expires on the day before the first
anniversary of the Commencement Date.




“Leased Property” means all of the
Land, Improvements, Related Rights and Landlord’s Personal
Property.




“Legal Requirements” means all laws,
regulations, rules, orders, writs, injunctions, decrees, certificates,
requirements, agreements, conditions of participation and standards of any
federal, state, county, municipal or other governmental entity, administrative
agency, insurance underwriting board, architectural control board, private
third-party payor, accreditation organization, or any restrictive covenants
applicable to the development, construction, condition and operation of the
Facility by Tenant for the Facility Uses, including, but not limited to,
[i] zoning, building, fire, health, safety, sign, and subdivision
regulations and codes; [ii] certificate of need laws (if applicable);
[iii] licensure to operate as each Facility in accordance with its
respective Facility Uses; [iv] Medicare and Medicaid certification
requirements (if applicable); [v] the ADA; [vi] any Environmental
Laws; and [vii] requirements, conditions and standards for participation in
third-party payor insurance programs (if applicable).




“Louisiana Facility” means Summerville
at Kenner in Kenner, Louisiana.




“Material Obligation” means
[i] any indebtedness with respect to any critical care equipment and for
all other equipment any indebtedness in excess of $250,000.00 at the Facility
secured by a security interest in or a lien, deed of trust or mortgage on any of
the Leased Property (or any part thereof, including any Personal Property) and
any agreement relating thereto; [ii] any obligation or agreement that is
material to the construction or operation of the Facility or that is material to
Tenant’s business or financial condition and where a breach




8


thereunder,
if not cured within any applicable cure period, would have a material adverse
affect on the financial condition of Tenant or the results of operations at the
Facility; [iii] any unsecured indebtedness or lease of Tenant or Subtenant
that has an outstanding principal balance or obligation of at least
$1,000,000.00 and any agreement relating thereto; and [iv] any indebtedness
or lease of Subtenant or of any other party that has been guaranteed by
Subtenant, other than this Lease, that has an outstanding principal balance or
obligation of at least $250,000.00.




“Modified Offer” has the meaning set
forth in §13.1.




“Modified Opportunity Notice” has the
meaning set forth in §13.1.




“Negotiation Period” has the meaning
set forth in §13.1.1.1.




“Net Operating Income” means the
pre-tax net income of Tenant or Subtenant plus [i] the amount of the
provision for depreciation and amortization; plus [ii] the amount of the
provision for interest and lease payments, if any; plus [iii] the amount of
the provision for Rent payments; plus [iv] the amount of the provision for
management fees.




“Obligor Group Obligations” means all
payment and performance obligations of Tenant and Subtenant to Landlord or any
Landlord Affiliate, including, but not limited to, all obligations under this
Lease, any loans extended to Tenant or Subtenant by Landlord or any Landlord
Affiliate and all documents executed by Tenant or Subtenant in favor of Landlord
or any Landlord Affiliate in connection with this Lease, any loan or any other
obligation.




“Offer” has the meaning set forth in
§13.1.




“Opportunity Notice” has the meaning
set forth in §13.1.




“Opportunity Transaction” has the
meaning set forth in §13.1.




“Option Price” has the meaning set
forth in §13.2.1.




“Option to Purchase” has the meaning
set forth in §13.2.




“Organization State” means the State in
which an entity is organized.




“Organizational Documents” means
[i] for a corporation, its Articles of Incorporation certified by the
Secretary of State of the Organization State, as amended to date, and its Bylaws
certified by such entity, as amended to date; [ii] for a partnership, its
Partnership Agreement certified by such entity, as amended to date, and the
Partnership Certificate, certified by the appropriate authority (if applicable),
as amended to date; and [iii] for a limited liability company, its Articles
of Organization certified by the Secretary of State of the Organization State,
as amended to date, and its Operating Agreement certified by such entity, as
amended to date.




9


“Periodic Financial Statements” means
[i] for Tenant, an unaudited balance sheet and statement of income for the
most recent quarter; and [ii] for the Facility, an unaudited Facility
Financial Statement for the most recent month.




“Permitted Exceptions” means all
easements, liens, encumbrances, restrictions, agreements and other title matters
existing as of the Amended Effective Date, including, without limitation, the
exceptions to title set forth on Exhibit B attached hereto, and any
sublease of any portion of the Leased Property made in complete accordance with
Article 18.




“Permitted Liens” means [i] liens
granted to Landlord; [ii] liens customarily incurred by Tenant or Subtenant
in the ordinary course of business for items not delinquent, including
mechanic’s liens and deposits and charges under worker’s compensation laws;
[iii] liens for taxes and assessments not yet due and payable;
[iv] any lien, charge, or encumbrance which is being contested in good
faith pursuant to this Lease; [v] the Permitted Exceptions; and
[vi] purchase money financing and capitalized equipment leases for the
acquisition of personal property provided, however, that Landlord obtains a
nondisturbance agreement from the purchase money lender or equipment lessor in
form and substance as may be satisfactory to Landlord if the original cost of
the equipment exceeds $250,000.00 per Facility.




“Personal Property” means all
machinery, equipment, furniture, furnishings, movable walls or partitions,
computers (and all associated software), trade fixtures and other personal
property (but excluding consumable inventory and supplies owned by Tenant) used
in connection with the Leased Property, together with all replacements and
alterations thereof and additions thereto, except items, if any, included within
the definition of Fixtures or Improvements.




“Portfolio Cash Flow” has the meaning
set forth in §15.7.1.




“Portfolio Coverage Ratio” has the
meaning set forth in §15.7.1.




“Pro Forma Statement” means a financial
forecast for the Facility for the next five-year period prepared in accordance
with the standards for forecasts established by the American Institute of
Certified Public Accountants.




“Purchase Notice” has the meaning set
forth in §13.2.




“Qualified Capital Expenditures” means
the expenditures capitalized on the books of Tenant or Subtenant for any of the
following:  replacement of furniture, fixtures and equipment,
including refrigerators, ranges, major appliances, bathroom fixtures, doors
(exterior and interior), central air conditioning and heating systems (including
cooling towers, water chilling units, furnaces, boilers and fuel storage tanks)
and replacement of siding; roof replacements, including replacements of gutters,
downspouts, eaves and soffits; repairs and replacements of plumbing and sanitary
systems; overhaul of elevator systems; repaving, resurfacing and sealcoating of
sidewalks, parking lots and driveways; repainting of entire building exterior
and normal maintenance and repairs needed to maintain the quality and condition
of the Facility in the market in which it operates, but excluding
Alterations.




10


“Receivables” means [i] all of
Tenant’s or Subtenant’s rights to receive payment for providing resident care
and services at the Facility as set forth in any accounts, contract rights, and
instruments, and [ii] those documents, chattel paper, inventory proceeds,
provider agreements, participation agreements, ledger sheets, files, records,
computer programs, tapes, and agreements relating to Tenant’s or Subtenant’s
rights to receive payment for providing resident care services at the
Facility.




“Related Rights” means all easements,
rights (including bed operating rights) and appurtenances relating to the Land
and the Improvements.




“Renewal Date” means the first day of
each Renewal Term.




“Renewal Option” has the meaning set
forth in §12.1.




“Renewal Term” has the meaning set
forth in §12.1.




“Rent” means Base Rent, General
Additional Rent and Default Rent.




“Rent Schedule” means the schedule
issued by Landlord to Tenant showing the Base Rent to be paid by Tenant pursuant
to the terms of this Lease, as such schedule is amended from time to time by
Landlord.  The Rent Schedule as of the Amended Effective Date,
reflecting the Base Rent that has been due and payable under the Lease since the
Commencement Date, is attached hereto as Schedule 1.




“Replacement Operator” has the meaning
set forth in §15.9.1.




“Right of First Opportunity Event” has
the meaning set forth in §13.1.




“Right of First Refusal Event” has the
meaning set forth in §13.1.




“Right of First Refusal Notice” has the
meaning set forth in §13.1.




“Rocky Hill Facility” means that
certain facility located in Rocky Hill, Connecticut.




“Rocky Hill Ground Lease” means that
certain ground lease dated as of February 26, 1996, for the Rocky Hill Land
by and between LM Rocky Hill Land Holding Limited Partnership, as landlord,
and HCRI-Cold Spring, as tenant, as successor in interest to Tenant, as
successor in interest to LM Rocky Hill Assisted Living Limited Partnership
(“LM Assisted”), as amended pursuant to the Addendum to Ground Lease dated as of
December 31, 1997 and, as further amended pursuant to the Amendment to
Ground Lease dated as of June 30, 2003, and identified as a “Permitted
Exception” on Exhibit B-3 hereto.




“Rocky Hill Lease” means that certain
Amended and Restated Lease Agreement dated as of February 26, 1996, between
HCRI-Cold Spring, as lessor/sublessor, as successor in interest by assignment to
LM Assisted, and Tenant, as lessee/sublessee, as amended.




11


“Rocky Hill Land” means the portion of
the Land on which the Rocky Hill Facility is located.




“Secured Party” has the meaning set
forth in §24.1.




“Seller” means each person or entity
that conveyed title to a Facility to Landlord.




“Sublease” means, individually and
collectively, the sublease with respect to each Facility between Tenant and
Subtenant, as the same may be amended or modified from time to time with the
consent of Landlord.  References in this Lease to “Sublease” shall
mean each sublease individually and shall relate to the respective Facility to
which such sublease relates unless expressly stated otherwise.




“Subtenant” means the entity identified
on Exhibit C that subleases the Facility from Tenant and is the licensed
operator of its respective Facility as shown on Exhibit C, individually and
collectively.  References in this Lease to “Subtenant” shall mean each
Subtenant individually and shall relate to such Subtenant’s respective Facility
unless expressly stated otherwise.




“Summerville Facilities” means
[i] Summerville at Kenner in Kenner, Louisiana, Summerville at Outlook
Manor in Westerville, Ohio and Summerville at Dayton, in Dayton, Ohio prior to
the exercise of the Early Option and the closing of the purchase of the
Summerville at Dayton facility pursuant to the terms thereof and
[ii] Summerville at Kenner in Kenner, Louisiana and Summerville at Outlook
Manor in Westerville, Ohio after the exercise of the Early Option and the
closing of the purchase of the Summerville at Dayton facility pursuant to the
terms thereof.




“Summerville Fair Market Value” has the
meaning set forth in §13.2.2.




“Summerville Investment Amount” is an
aggregate concept and means the sum of the Investment Advance Amounts based on
the Summerville Facilities.  As of the Amended Effective Date, the
Summerville Investment Amount is $27,019,834.76.  If Tenant exercises
its Early Option, the Summerville Investment Amount will decrease by the amount
of the Early Option Price.




“Summerville Loan Amount” means
$12,864,874.24.




“Tenant” has the meaning set forth in
the introductory paragraph of this Lease.




“Term” means the Initial Term and each
Renewal Term.




“Third-Party Sale” has the meaning set
forth in §13.2.6.




“Total Investment Amount” means the
Investment Amount plus any Contingent Payment Advance.




“Transaction Documents” has the meaning
set forth in §13.1.




12


1.5           Landlord As
Agent.  With respect to its respective Facility, each HCRI
Landlord appoints HCRI as the agent and lawful attorney-in-fact of such HCRI
Landlord to act for such HCRI Landlord for all purposes and actions of Landlord
under this Lease and the other Lease Documents.  All notices,
consents, waivers and all other documents and instruments executed by HCRI
pursuant to the Lease Documents from time to time and all other actions of HCRI
as Landlord under the Lease Documents shall be binding upon such HCRI
Landlord.  All Rent payable under this Lease shall be paid to
HCRI.




1.6           Rocky Hill Ground
Lease.




1.6.1                      General.  Notwithstanding
any other provision hereof to the contrary, Tenant acknowledges that Landlord
does not possess a fee simple interest in the Rocky Hill
Land.  Instead, Landlord’s interest in the Rocky Hill Land consists of
a tenant’s interest under the Rocky Hill Ground Lease.  Therefore,
unless and until Landlord exercises the Option (as defined in the Rocky Hill
Ground Lease), Tenant’s interest in the Rocky Hill Land shall be in the nature
of a sublease, rather than a lease.  Except as expressly set forth
herein, the terms of this Lease shall apply to the sublease (or lease, in the
event of the exercise by Landlord of the Option) of the Rocky Hill Land to
Tenant.  Tenant acknowledges receipt of a copy of the Rocky Hill
Ground Lease.  Tenant acknowledges that Landlord has made no
representation to Tenant with respect to the terms of the Rocky Hill Ground
Lease and that Tenant is relying solely on its own review of the Rocky Hill
Ground Lease with respect to the terms, provisions and status of the Rocky Hill
Ground Lease.




1.6.2                      Landlord Acceptance of Rocky
Hill Ground Lease Obligations.  Tenant acknowledges and agrees
that Landlord previously accepted an assignment of the Rocky Hill Ground Lease
only as an accommodation to Tenant and that, therefore, Tenant agrees to
undertake the performance of all obligations under the Rocky Hill Ground Lease
other than those obligations, if any, which are personal to Landlord and cannot
be delegated to Tenant.  Landlord’s agreement to continue to be
obligated under the Rocky Hill Ground Lease is being made in reliance upon the
provisions hereof.




1.6.3                      Compliance with Rocky Hill
Ground Lease; Rent Payments Thereunder.




(a)  Tenant’s
Obligations.  In addition to its other obligations under this
Lease, Tenant hereby agrees to timely comply with each and every term applicable
to the tenant under the Rocky Hill Ground Lease without notice or demand
therefore by Landlord or the landlord under the Rocky Hill Ground Lease other
than those obligations, if any, which are personal to Landlord and cannot be
delegated to Tenant.  Without limiting the foregoing, Tenant
acknowledges and agrees that any and all amounts payable by the tenant under the
terms of the Rocky Hill Ground Lease, including rent, shall be the sole
responsibility of Tenant and shall be deemed included in the definition of
“Impositions” as set forth in this Lease.  Such amounts shall be in
addition to all amounts payable under this Lease.  Tenant shall
deposit with Landlord the amount of the rent required under the Rocky Hill
Ground Lease.  Such sum shall be used by Landlord for the timely
payment of the rent due under the Rocky Hill Ground Lease.  Tenant, on
demand, shall pay to Landlord any additional funds necessary to pay and
discharge the obligations arising under the Rocky Hill Ground Lease, except to
the extent such obligations




13


arise
from a breach of the Rocky Hill Ground Lease which results from the acts or
omissions of Landlord.




(b)  Landlord’s
Obligations.  Landlord covenants, agrees and warrants to Tenant
that Landlord will [i] not take any actions or fail to take any actions
that Tenant is unable to take for Landlord, that would cause a default under the
Rocky Hill Ground Lease; and [ii] promptly deliver to Tenant copies of all
notices and other documents received or given by the lessor under the Rocky Hill
Ground Lease relating to a failure to comply with the terms of the Rocky Hill
Ground Lease.




1.6.4                      Termination or Expiration of
Rocky Hill Ground Lease.  If Landlord’s rights to the Rocky
Hill Land are terminated under the Rocky Hill Ground Lease, then the Rocky Hill
Facility shall be deemed removed from this Lease.  Nothing in this
§1.6.4 shall cause the Base Rent payable hereunder to be reduced nor the
Investment Amount to be deemed reduced unless either [i] the termination of
the Rocky Hill Ground Lease is due to the acts or omissions of Landlord, in
which case the Base Rent shall be reduced by the Investment Amount applicable to
the Rocky Hill Facility multiplied by the then applicable Rent Rate of Return as
set forth in Schedule 1 or [ii] the termination of the Rocky Hill
Ground Lease is as a result of damage to or destruction or a taking of the Rocky
Hill Land and Landlord is compensated for its investment in the Rocky Hill
Facility as a result thereof, in which case the Base Rent shall be reduced by
the reduction in the Investment Amount resulting therefrom multiplied by the
then applicable Rent Rate of Return as set forth in
Schedule 1.




1.6.5                      Remedies.  In
addition to the remedies provided for in §8.2 hereof, Landlord shall have the
right, upon the occurrence of an Event of Default under this Lease or any Lease
Document, to accelerate the payment of any or all amounts then or thereafter
payable by the tenant under the terms of the Rocky Hill Ground Lease, including
rent.




1.7           Termination of the
Summerville Lease.  As of the Amended Effective Date, the
Summerville Lease shall be and hereby is terminated, and HCRI, HCRI-LA and
Senior Living Properties, LLC shall execute and record memoranda of termination
of the Summerville Lease to reflect the termination of the Summerville Lease,
and Tenant and the Amended Effective Date Landlord shall execute and record
memoranda of lease to evidence the lease of the Summerville Facilities under
this Lease.




ARTICLE
2:  RENT




2.1           Base
Rent.  Tenant shall pay Landlord base rent (“Base Rent”) in
advance in consecutive monthly installments payable on the first day of each
month during the Term commencing on the Amended Commencement Date.  If
the Amended Effective Date is not the first day of a month, Tenant shall pay
Landlord Base Rent on the Amended Effective Date for the partial month, i.e.,
for the period commencing on the Amended Effective Date and ending on the day
before the Amended Commencement Date.  The Base Rent payable for the
Initial Term is as shown on the Rent Schedule.  The Base Rent for each
Renewal Term will be determined in accordance with §12.2.




14


2.2           Base Rent
Adjustments.




2.2.1                      Base Rent Adjustments –
Additional Investment Advances.  If Landlord makes an
Investment Advance after the Amended Effective Date, the Base Rent will be
increased effective on the Investment Advance Date based upon the applicable
rate of return in effect on the Investment Advance Date as set forth on
Schedule 1.  Until Tenant receives a revised Rent Schedule from
Landlord, Tenant shall for each month [i] continue to make installments of
Base Rent according to the Rent Schedule in effect on the day before the
Investment Advance Date; and [ii] within 10 days following Landlord’s
issuance of an invoice, pay the difference between the installment of Base Rent
that Tenant paid to Landlord for such month and the installment of Base Rent
actually due to Landlord for such month as a result of the Investment
Advance.  On the first day of the month following receipt of the
revised Rent Schedule, Tenant shall pay the monthly installment of Base Rent
specified in the revised Rent Schedule.




2.3           Additional
Rent.




2.3.1                      General Additional
Rent.  In addition to Base Rent, Tenant shall pay all other
amounts, liabilities, obligations and Impositions which Tenant assumes or agrees
to pay under this Lease including any fine, penalty, interest, charge and cost
which may be added for nonpayment or late payment of such items (collectively
the “General Additional Rent”).




2.4           Place of Payment of
Rent.  Tenant shall make all payments of Rent to Landlord by
electronic wire transfer in accordance with the wiring instructions set forth in
Exhibit J attached hereto, subject to change in accordance with other
written instructions provided by Landlord from time to time.




2.5           Net
Lease.  This Lease shall be deemed and construed to be an
“absolute net lease”, and Tenant shall pay all Rent and other charges and
expenses in connection with the Leased Property throughout the Term, without
abatement, deduction, recoupment or set-off.  Landlord shall have all
legal, equitable and contractual rights, powers and remedies provided either in
this Lease or by statute or otherwise in the case of nonpayment of the
Rent.




2.6           No Termination, Abatement,
Etc. Except as otherwise specifically provided in this Lease, Tenant
shall remain bound by this Lease in accordance with its terms.  Tenant
shall not, without the consent of Landlord, modify, surrender or terminate the
Lease, nor seek nor be entitled to any abatement, deduction, deferment or
reduction of Rent, or set-off or recoupment against the Rent.  Except
as expressly provided in this Lease, the obligations of Landlord and Tenant
shall not be affected by reason of [i] any damage to, or destruction of,
the Leased Property or any part thereof from whatever cause or any Taking (as
hereinafter defined) of the Leased Property or any part thereof; [ii] the
lawful or unlawful prohibition of, or restriction upon, Tenant’s use of the
Leased Property, or any part thereof, the interference with such use by any
person, corporation, partnership or other entity, or by reason of eviction by
paramount title; [iii] any claim which Tenant has or might have against
Landlord or by reason of any default or breach of any warranty by Landlord under
this Lease or any other agreement between Landlord and Tenant, or to which
Landlord and Tenant are parties; [iv] any bankruptcy, insolvency,
reorganization, composition, readjustment, liquidation, dissolution, winding up
or




15


other
proceeding affecting Landlord or any assignee or transferee of Landlord; or
[v] any other cause, whether similar or dissimilar to any of the foregoing,
other than a discharge of Tenant from any such obligations as a matter of
law.  Except as otherwise specifically provided in this Lease, Tenant
hereby specifically waives all rights, arising from any occurrence whatsoever,
which may now or hereafter be conferred upon it by law [a] to modify,
surrender or terminate this Lease or quit or surrender the Leased Property or
any portion thereof; or [b] entitling Tenant to any abatement, reduction,
suspension or deferment of the Rent or other sums payable by Tenant
hereunder.  The obligations of Landlord and Tenant hereunder shall be
separate and independent covenants and agreements and the Rent and all other
sums payable by Tenant hereunder shall continue to be payable in all events
unless the obligations to pay the same shall be terminated pursuant to the
express provisions of this Lease or by termination of this Lease other than by
reason of an Event of Default.  Nothing in this §2.6 shall be
construed to limit any right which Tenant may have to bring a separate action
against Landlord for any claim which Tenant may have or allege to have against
Landlord.




2.7           Transaction
Fee.  Tenant has paid transaction fees as required by Landlord
prior to the Amended Effective Date.  There is no transaction fee
payable as of the Amended Effective Date.




ARTICLE
3:  IMPOSITIONS AND UTILITIES




3.1           Payment of
Impositions.  Tenant shall pay, as Additional Rent, all
Impositions that may be levied or become a lien on the Leased Property or any
part thereof at any time (whether prior to or during the Term), without regard
to prior ownership of said Leased Property, before any fine, penalty, interest,
or cost is incurred; provided, however, Tenant may contest any Imposition in
accordance with §3.7.  Tenant shall deliver to Landlord [i] not
more than five days after the due date of each Imposition, copies of the invoice
for such Imposition and the check delivered for payment thereof; and
[ii] not more than 30 days after the due date of each Imposition, a
copy of the official receipt evidencing such payment or other proof of payment
satisfactory to Landlord.  Tenant’s obligation to pay such Impositions
shall be deemed absolutely fixed upon the date such Impositions become a lien
upon the Leased Property or any part thereof.  Tenant, at its expense,
shall prepare and file all tax returns and reports in respect of any Imposition
as may be required by governmental authorities.  Tenant shall be
entitled to any refund due from any taxing authority if no Event of Default
shall have occurred hereunder and be continuing and if Tenant shall have paid
all Impositions due and payable as of the date of the
refund.  Landlord shall be entitled to any refund from any taxing
authority if an Event of Default has occurred and is continuing.  Any
refunds retained by Landlord due to an Event of Default shall be applied as
provided in §8.8.  Landlord and Tenant shall, upon request of the
other, provide such data as is maintained by the party to whom the request is
made with respect to the Leased Property as may be necessary to prepare any
required returns and reports.  In the event governmental authorities
classify any property covered by this Lease as personal property, Tenant shall
file all personal property tax returns in such jurisdictions where it may
legally so file.  Landlord, to the extent it possesses the same, and
Tenant, to the extent it possesses the same, will provide the other party, upon
request, with cost and depreciation records necessary for filing returns for any
property so classified as personal property.  Where Landlord is
legally required to file personal property tax returns, Tenant will be provided
with copies of assessment notices indicating a value in excess of the reported
value in sufficient time for Tenant to file a




16


protest.  Tenant
may, at Tenant’s option and at Tenant’s sole cost and expense, protest, appeal
or institute such other proceedings as Tenant may deem appropriate to effect a
reduction of real estate or personal property assessments and Landlord, at
Tenant’s expense as aforesaid, shall fully cooperate with Tenant in such
protest, appeal, or other action.  Tenant shall reimburse Landlord for
all personal property taxes paid by Landlord within 30 days after receipt
of billings accompanied by copies of a bill therefore and payments thereof which
identify the personal property with respect to which such payments are
made.  Impositions imposed in respect to the tax-fiscal period during
which the Term terminates shall be adjusted and prorated between Landlord and
Tenant as of the termination date, whether or not such Imposition is imposed
before or after such termination, and Tenant’s obligation to pay its prorated
share thereof shall survive such termination.




3.2           Definition of
Impositions.  “Impositions” means, collectively, [i] taxes
(including, without limitation, all capital stock and franchise taxes of
Landlord imposed by the Facility State or any governmental entity in the
Facility State due to this lease transaction or Landlord’s ownership of the
Leased Property and the income arising therefrom, or due to Landlord being
considered as doing business in the Facility State because of Landlord’s
ownership of the Leased Property or lease thereof to Tenant), all real estate
and personal property ad valorem, sales and use, business or occupation, single
business, gross receipts, transaction privilege, rent or similar taxes;
[ii] assessments (including, without limitation, all assessments for public
improvements or benefits, whether or not commenced or completed prior to the
date hereof and whether or not to be completed with the Term); [iii] ground
rents, water, sewer or other rents and charges, excises, tax levies, and fees
(including, without limitation, license, permit, inspection, authorization and
similar fees); [iv] all taxes imposed on Tenant’s operations of the Leased
Property, including, without limitation, employee withholding taxes, income
taxes and intangible taxes; [v] all taxes imposed by the Facility State or
any governmental entity in the Facility State with respect to the conveyance of
the Leased Property by Landlord to Tenant or Tenant’s designee, including,
without limitation, conveyance taxes; and [vi] all other governmental
charges, in each case whether general or special, ordinary or extraordinary, or
foreseen or unforeseen, of every character in respect of the Leased Property or
any part thereof and/or the Rent (including all interest and penalties thereon
due to any failure in payment by Tenant), which at any time prior to, during or
in respect of the Term hereof may be assessed or imposed on or in respect of or
be a lien upon [a] Landlord or Landlord’s interest in the Leased Property
or any part thereof; [b] the Leased Property or any part thereof or any
rent therefrom or any estate, right, title or interest therein; or [c] any
occupancy, operation, use or possession of, or sales from, or activity conducted
on, or in connection with the Leased Property or the leasing or use by Tenant of
the Leased Property or any part thereof.  Tenant shall not, however,
be required to pay any capital gains tax or any tax based on net income imposed
on Landlord by any governmental entity other than the capital stock and
franchise taxes described in clause [i] above.




3.3           Escrow of
Impositions.  Tenant shall deposit with Landlord on the first
day of each month a sum equal to 1/12th of the Impositions assessed against the
Leased Property for the preceding tax year for real estate taxes, which sums
shall be used by Landlord toward payment of such Impositions.  In
addition, if an Event of Default occurs and while it remains uncured, Tenant
shall, at Landlord’s election, deposit with Landlord on the first day of each
month a sum equal to 1/12th of the Impositions assessed against the Leased
Property for the




17


preceding
tax year other than real estate taxes, which sums shall be used by Landlord
toward payment of such Impositions.  Tenant, on demand, shall pay to
Landlord any additional funds necessary to pay and discharge the obligations of
Tenant pursuant to the provisions of this section.  The receipt by
Landlord of the payment of such Impositions by and from Tenant shall only be as
an accommodation to Tenant, the mortgagees, and the taxing authorities, and
shall not be construed as rent or income to Landlord, Landlord serving, if at
all, only as a conduit for delivery purposes.




3.4           Utilities.  Tenant
shall pay, as Additional Rent, all taxes, assessments, charges, deposits, and
bills for utilities, including, without limitation, charges for water, gas, oil,
sanitary and storm sewer, electricity, telephone service, and trash collection,
which may be charged against the occupant of the Improvements during the
Term.  If an Event of Default occurs and while it remains uncured,
Tenant shall, at Landlord’s election, deposit with Landlord on the first day of
each month a sum equal to 1/12th of the amount of the annual utility expenses
for the preceding Lease Year, which sums shall be used by Landlord to pay such
utilities.  Tenant shall, on demand, pay to Landlord any additional
amount needed to pay such utilities.  Landlord’s receipt of such
payments shall only be an accommodation to Tenant and the utility companies and
shall not constitute rent or income to Landlord.  Absent circumstances
beyond Tenant’s reasonable control, Tenant shall at all times maintain that
amount of heat necessary to ensure against the freezing of water
lines.  Tenant hereby agrees to indemnify and hold Landlord harmless
from and against any liability or damages to the utility systems and the Leased
Property that may result from Tenant’s failure to maintain sufficient heat in
the Improvements absent circumstances beyond Tenant’s reasonable
control.




3.5           Discontinuance of
Utilities.  Landlord will not be liable for damages to person
or property or for injury to, or interruption of, business for any
discontinuance of utilities nor will such discontinuance in any way be construed
as an eviction of Tenant or cause an abatement of rent or operate to release
Tenant from any of Tenant’s obligations under this Lease.




3.6           Business
Expenses.  Tenant shall promptly pay all expenses and costs
incurred in connection with the operation of the Facility on the Leased
Property, including, without limitation, employee benefits, employee vacation
and sick pay, consulting fees, and expenses for inventory and
supplies.




3.7           Permitted
Contests.  Tenant, on its own or on Landlord’s behalf (or in
Landlord’s name), but at Tenant’s expense, may contest, by appropriate legal
proceedings conducted in good faith and with due diligence, the amount or
validity or application, in whole or in part, of any Imposition or any Legal
Requirement or insurance requirement or any lien, attachment, levy, encumbrance,
charge or claim provided that [i] in the case of an unpaid Imposition,
lien, attachment, levy, encumbrance, charge or claim, the commencement and
continuation of such proceedings shall suspend the collection thereof from
Landlord and from the Leased Property; [ii] neither the Leased Property nor
any Rent therefrom nor any part thereof or interest therein would be in any
immediate danger of being sold, forfeited, attached or lost; [iii] in the
case of a Legal Requirement, Landlord would not be in any immediate danger of
civil or criminal liability for failure to comply therewith pending the outcome
of such proceedings; [iv] in the event that any such contest shall involve
a sum of money or potential loss in excess of $50,000.00, Tenant shall deliver
to Landlord and its counsel an opinion of Tenant’s counsel to




18


the
effect set forth in clauses [i], [ii] and [iii], to the extent applicable;
[v] in the case of a Legal Requirement and/or an Imposition, lien,
encumbrance or charge, Tenant shall give such reasonable security as may be
demanded by Landlord to insure ultimate payment of the same and to prevent any
sale or forfeiture of the affected Leased Property or the Rent by reason of such
nonpayment or noncompliance; provided, however, the provisions of this section
shall not be construed to permit Tenant to contest the payment of Rent (except
as to contests concerning the method of computation or the basis of levy of any
Imposition or the basis for the assertion of any other claim) or any other sums
payable by Tenant to Landlord hereunder; [vi] in the case of an insurance
requirement, the coverage required by Article 4 shall be maintained; and
[vii] if such contest be finally resolved against Landlord or Tenant,
Tenant shall, as Additional Rent due hereunder, promptly pay the amount required
to be paid, together with all interest and penalties accrued thereon, or comply
with the applicable Legal Requirement or insurance
requirement.  Landlord, at Tenant’s expense, shall execute and deliver
to Tenant such authorizations and other documents as may be reasonably required
in any such contest, and, if reasonably requested by Tenant or if Landlord so
desires, Landlord shall join as a party therein.  Tenant hereby agrees
to indemnify and save Landlord harmless from and against any liability, cost or
expense of any kind that may be imposed upon Landlord in connection with any
such contest and any loss resulting therefrom.




ARTICLE
4:  INSURANCE




4.1           Property
Insurance.  At Tenant’s expense, Tenant shall maintain in full
force and effect a property insurance policy or policies insuring the Leased
Property against the following:




(a)  Loss or
damage commonly covered by a “Special Form” or “All Risk” policy insuring
against physical loss or damage to the Improvements and Personal Property,
including, but not limited to, risk of loss from fire and other hazards,
collapse, transit coverage, vandalism, malicious mischief, theft, earthquake (if
the Leased Property is in earthquake zone 1 or 2) and sinkholes (if usually
recommended in the area of the Leased Property).  The policy shall be
in the amount of the full replacement value (as defined in §4.5) of the
Improvements and Personal Property and shall contain a deductible amount
acceptable to Landlord.  Landlord shall be named as an additional
insured.  The policy shall include a stipulated value endorsement or
agreed amount endorsement and endorsements for contingent liability for
operations of building laws, demolition costs, and increased cost of
construction.




(b)  If
applicable, loss or damage by explosion of steam boilers, pressure vessels, or
similar apparatus, now or hereafter installed on the Leased Property, in
commercially reasonable amounts acceptable to Landlord.




(c)  Consequential
loss of rents and income coverage insuring against all “All Risk” or “Special
Form” risk of physical loss or damage with limits and deductible amounts
acceptable to Landlord covering risk of loss during the first nine months of
reconstruction, and containing an endorsement for extended period of indemnity
of at least 90 days, and shall be written with a stipulated amount of
coverage if available at a reasonable premium.




19


(d)  If the
Leased Property is located, in whole or in part, in a federally designated
100-year flood plain area, flood insurance for the Improvements in an amount
equal to the lesser of [i] the full replacement value of the Improvements;
or [ii] the maximum amount of insurance available for the Improvements
under all federal and private flood insurance programs.




(e)  Loss or
damage caused by the breakage of plate glass in commercially reasonable amounts
acceptable to Landlord.




(f)  Loss or
damage commonly covered by blanket crime insurance, including employee
dishonesty, loss of money orders or paper currency, depositor’s forgery, and
loss of property of patients accepted by Tenant for safekeeping, in commercially
reasonable amounts acceptable to Landlord.




4.2           Liability
Insurance.  At Tenant’s expense, Tenant shall maintain
liability insurance against the following:




(a)  Claims
for personal injury or property damage commonly covered by comprehensive general
liability insurance with endorsements for incidental malpractice, contractual,
personal injury, owner’s protective liability, voluntary medical payments,
products and completed operations, broad form property damage, and extended
bodily injury, with commercially reasonable amounts for bodily injury, property
damage, and voluntary medical payments acceptable to Landlord, but with a
combined single limit of not less than $5,000,000.00 per
occurrence.




(b)  Claims
for personal injury and property damage commonly covered by comprehensive
automobile liability insurance, covering all owned and non-owned automobiles,
with commercially reasonable amounts for bodily injury, property damage, and for
automobile medical payments acceptable to Landlord, but with a combined single
limit of not less than $5,000,000.00 per occurrence.




(c)  Claims
for personal injury commonly covered by medical malpractice insurance in
commercially reasonable amounts acceptable to Landlord.




(d)  Claims
commonly covered by worker’s compensation insurance for all persons employed by
Tenant on the Leased Property.  Such worker’s compensation insurance
shall be in accordance with the requirements of all applicable local, state, and
federal law.




4.3           Builder’s Risk
Insurance.  In connection with any construction, Tenant shall
maintain in full force and effect a builder’s completed value risk coverage
(“Builder’s Risk Coverage”) of insurance in a nonreporting form insuring against
all “All Risk” or “Special Form” risk of physical loss or damage to the
Improvements, including, but not limited to, risk of loss from fire and other
hazards, collapse, transit coverage, vandalism, malicious mischief, theft,
earthquake (if Leased Property is in earthquake zone 1 or 2) and sinkholes
(if usually recommended in the area of the Leased Property).  The
Builder’s Risk Coverage shall include endorsements providing coverage for
building materials and supplies and temporary premises.  The Builder’s
Risk Coverage shall be in the amount of the full replacement value of the
Improvements and shall contain a deductible amount acceptable to
Landlord.  Landlord shall be




20


named as
an additional insured.  The Builder’s Risk Coverage shall include an
endorsement permitting initial occupancy.




4.4           Insurance
Requirements.  The following provisions shall apply to all
insurance coverages required hereunder:




(a)  The form
and substance of all policies shall be subject to the approval of Landlord,
which approval will not be unreasonably withheld.




(b)  The
carriers of all policies shall have a Best’s Rating of “A” or better and a
Best’s Financial Category of XII or higher and shall be authorized to do
insurance business in the Facility State.




(c)  Tenant
shall be the “named insured” and Landlord shall be an “additional insured” on
each policy.




(d)  Tenant
shall deliver to Landlord certificates or policies showing the required
coverages and endorsements.  The policies of insurance shall provide
that the policy may not be canceled or not renewed, and no material change or
reduction in coverage may be made, without at least 30 days’ prior written
notice to Landlord.




(e)  The
policies shall contain a severability of interest and/or cross-liability
endorsement, provide that the acts or omissions of Tenant or Landlord will not
invalidate the coverage of the other party, and provide that Landlord shall not
be responsible for payment of premiums.




(f)  All loss
adjustment shall require the written consent of Landlord and Tenant, as their
interests may appear.




(g)  At least
30 days prior to the expiration of each insurance policy, Tenant shall
deliver to Landlord a certificate showing renewal of such policy and payment of
the annual premium therefor and a current Certificate of Compliance (in the form
delivered at the time of Closing) completed and signed by Tenant’s insurance
agent.




4.5           Replacement
Value.  The term “full replacement value” means the actual
replacement cost thereof from time to time, including increased cost of
construction endorsement, with no reductions or deductions.  Tenant
shall, in connection with each annual policy renewal, deliver to Landlord a
redetermination of the full replacement value by the insurer or an endorsement
indicating that the Leased Property is insured for its full replacement
value.  If Tenant makes any Permitted Alterations (as hereinafter
defined) to the Leased Property, Landlord may have such full replacement value
redetermined at any time after such Permitted Alterations are made, regardless
of when the full replacement value was last determined.




4.6           Blanket
Policy.  Notwithstanding anything to the contrary contained in
this Article 4, Tenant may carry the insurance required by this Article
under a blanket policy of insurance, provided that the coverage afforded Tenant
will not be reduced or diminished or otherwise be different from that which
would exist under a separate policy meeting all of the requirements of this
Lease.




21


4.7           No Separate
Insurance.  Tenant shall not take out separate insurance
concurrent in form or contributing in the event of loss with that required in
this Article, or increase the amounts of any then existing insurance, by
securing an additional policy or additional policies, unless all parties having
an insurable interest in the subject matter of the insurance, including Landlord
and any mortgagees, are included therein as additional insureds or loss payees,
the loss is payable under said insurance in the same manner as losses are
payable under this Lease, and such additional insurance is not prohibited by the
existing policies of insurance.  Tenant shall immediately notify
Landlord of the taking out of such separate insurance or the increasing of any
of the amounts of the existing insurance by securing an additional policy or
additional policies.




4.8           Waiver of
Subrogation.  Each party hereto hereby waives any and every
claim which arises or may arise in its favor and against the other party hereto
during the Term for any and all loss of, or damage to, any of its property
located within or upon, or constituting a part of, the Leased Property, which
loss or damage is covered by valid and collectible insurance policies, to the
extent that such loss or damage is recoverable under such
policies.  Said mutual waiver shall be in addition to, and not in
limitation or derogation of, any other waiver or release contained in this Lease
with respect to any loss or damage to property of the parties
hereto.  Inasmuch as the said waivers will preclude the assignment of
any aforesaid claim by way of subrogation (or otherwise) to an insurance company
(or any other person), each party hereto agrees immediately to give each
insurance company which has issued to it policies of insurance, written notice
of the terms of said mutual waivers, and to have such insurance policies
properly endorsed, if necessary, to prevent the invalidation of said insurance
coverage by reason of said waivers, so long as such endorsement is available at
a reasonable cost.




4.9           Mortgages.  The
following provisions shall apply if Landlord now or hereafter places a mortgage
on the Leased Property or any part thereof:  [i] Tenant shall
obtain a standard form of lender’s loss payable clause insuring the interest of
the mortgagee; [ii] Tenant shall deliver evidence of insurance to such
mortgagee; [iii] loss adjustment shall require the consent of the
mortgagee; and [iv] Tenant shall provide such other information and
documents as may be required by the mortgagee.




4.10           Escrows.  After
an Event of Default occurs hereunder, Tenant shall make such periodic payments
of insurance premiums in accordance with Landlord’s requirements after receipt
of notice thereof from Landlord.




ARTICLE
5:  INDEMNITY




5.1           Tenant’s
Indemnification.  Tenant hereby indemnifies and agrees to hold
harmless Landlord, any successors or assigns of Landlord, and Landlord’s and
such successor’s and assign’s directors, officers, employees and agents from and
against any and all demands, claims, causes of action, fines, penalties, damages
(including consequential damages), losses, liabilities (including strict
liability), judgments, and expenses (including, without limitation, reasonable
attorneys’ fees, court costs, and the costs set forth in §8.7) incurred in
connection with or arising from:  [i] the use or occupancy of the
Leased Property by Tenant or any persons claiming under Tenant; [ii] any
activity, work, or thing done, or permitted or suffered by Tenant in or about
the Leased Property; [iii] any acts, omissions, or negligence of Tenant or
any person




22


claiming
under Tenant, or the contractors, agents, employees, invitees, or visitors of
Tenant or any such person; [iv] any breach, violation, or nonperformance by
Tenant or any person claiming under Tenant or the employees, agents,
contractors, invitees, or visitors of Tenant or of any such person, of any term,
covenant, or provision of this Lease or any law, ordinance, or governmental
requirement of any kind, including, without limitation, any failure to comply
with any applicable requirements under the ADA; [v] any injury or damage to
the person, property or business of Tenant, its employees, agents, contractors,
invitees, visitors, or any other person entering upon the Leased Property;
[vi] any construction, alterations, changes or demolition of the Facility
performed by or contracted for by Tenant or its employees, agents or
contractors; and [vii] any obligations, costs or expenses arising under any
Permitted Exceptions.  If any action or proceeding is brought against
Landlord, its employees, or agents by reason of any such claim, Tenant, upon
notice from Landlord, will defend the claim at Tenant’s expense with counsel
reasonably satisfactory to Landlord.  All amounts payable to Landlord
under this section shall be payable on written demand and any such amounts which
are not paid within 10 days after demand therefor by Landlord shall bear
interest at Landlord’s rate of return as provided in the
Commitment.  In case any action, suit or proceeding is brought against
Tenant by reason of any such occurrence, Tenant shall use its commercially
reasonable efforts to defend such action, suit or proceeding.  Nothing
in this §5.1 shall be construed as requiring Tenant to indemnify Landlord with
respect to Landlord’s own gross negligence or willful misconduct.




5.1.1                      Notice of
Claim.  Landlord shall notify Tenant in writing of any claim or
action brought against Landlord in which indemnity may be sought against Tenant
pursuant to this section.  Such notice shall be given in sufficient
time to allow Tenant to defend or participate in such claim or action, but the
failure to give such notice in sufficient time shall not constitute a defense
hereunder nor in any way impair the obligations of Tenant under this section
unless the failure to give such notice precludes Tenant’s defense of any such
action.




5.1.2                      Survival of
Covenants.  The covenants of Tenant contained in this section
shall remain in full force and effect after the termination of this Lease until
the expiration of the period stated in the applicable statute of limitations
during which a claim or cause of action may be brought and payment in full or
the satisfaction of such claim or cause of action and of all expenses and
charges incurred by Landlord relating to the enforcement of the provisions
herein specified.




5.1.3                      Reimbursement of
Expenses.  Unless prohibited by law, Tenant hereby agrees to
pay to Landlord all of the reasonable fees, charges and reasonable out-of-pocket
expenses related to the Facility and required hereby, or incurred by Landlord in
enforcing the provisions of this Lease.




5.2           Environmental Indemnity;
Audits.  Tenant hereby indemnifies and agrees to hold harmless
Landlord, any successors to Landlord’s interest in this Lease, and Landlord’s
and such successors’ directors, officers, employees and agents from and against
any losses, claims, damages (including consequential damages), penalties, fines,
liabilities (including strict liability), costs (including cleanup and recovery
costs), and expenses (including expenses of litigation and reasonable
consultants’ and attorneys’ fees) incurred by Landlord or any other indemnitee
or assessed against any portion of the Leased Property by virtue of any claim or
lien by any governmental or quasi-governmental unit, body, or agency, or any
third party, for cleanup




23


costs or
other costs pursuant to any Environmental Law.  Tenant’s indemnity
shall survive the termination of this Lease.  Provided, however,
Tenant shall have no indemnity obligation with respect to [i] Hazardous
Materials first introduced to the Leased Property subsequent to the date that
Tenant’s occupancy of the Leased Property shall have fully terminated; or
[ii] Hazardous Materials introduced to the Leased Property by Landlord, its
agent, employees, successors or assigns.  If at any time during the
Term of this Lease any governmental authority notifies Landlord or Tenant of a
violation of any Environmental Law or Landlord reasonably believes that a
Facility may violate any Environmental Law, Landlord may require one or more
environmental audits of such portion of the Leased Property, in such form, scope
and substance as specified by Landlord, at Tenant’s expense.  Tenant
shall, within 30 days after receipt of an invoice from Landlord, reimburse
Landlord for all costs and expenses incurred in reviewing any environmental
audit, including, without limitation, reasonable attorneys’ fees and
costs.




5.3           Limitation of Landlord’s
Liability.  Landlord, its agents, and employees, will not be
liable for any loss, injury, death, or damage (including consequential damages)
to persons, property, or Tenant’s business occasioned by theft, act of God,
public enemy, injunction, riot, strike, insurrection, war, court order,
requisition, order of governmental body or authority, fire, explosion, falling
objects, steam, water, rain or snow, leak or flow of water (including water from
the elevator system), rain or snow from the Leased Property or into the Leased
Property or from the roof, street, subsurface or from any other place, or by
dampness or from the breakage, leakage, obstruction, or other defects of the
pipes, sprinklers, wires, appliances, plumbing, air conditioning, or lighting
fixtures of the Leased Property, or from construction, repair, or alteration of
the Leased Property or from any acts or omissions of any other occupant or
visitor of the Leased Property, or from any other cause beyond Landlord’s
control.




ARTICLE
6:  USE AND ACCEPTANCE OF PREMISES




6.1           Use of Leased
Property.  Tenant shall use and occupy the Leased Property
exclusively for the Facility Uses specified for each Facility and for all lawful
and licensed ancillary uses, including the operation of an Alzheimer’s Memory
Loss Unit, provided Tenant complies with all applicable Legal Requirements, and
for no other purpose without the prior written consent of
Landlord.  Tenant or Subtenant, as the case may be, shall obtain and
maintain all approvals, licenses, and consents needed to use and operate the
Leased Property as herein permitted.  Landlord agrees that in the
event Tenant or Subtenant, as the case may be, has not obtained a license to
operate the Facility on the Amended Effective Date, Tenant shall be in
compliance with this section provided (i) Tenant has entered into a
contractual arrangement with the licenseholder, which contractual arrangement is
in compliance with all Legal Requirements, authorizing Tenant to operate the
Facility; and (ii) Tenant proceeds in a diligent manner to obtain a license
to operate the Facility.  Tenant shall deliver to Landlord complete
copies of surveys, examinations, certification and licensure inspections,
compliance certificates, and other similar reports issued to Tenant by any
governmental agency within 10 Business Days after Tenant’s receipt of each
item.




6.2           Acceptance of Leased
Property.  Tenant acknowledges that [i] Tenant and its
agents have had an opportunity to inspect the Leased Property; [ii] Tenant
has found the Leased Property fit for Tenant’s use; [iii] Landlord will
deliver the Leased Property to Tenant in




24


“as-is”
condition; [iv] Landlord is not obligated to make any improvements or
repairs to the Leased Property; and [v] the roof, walls, foundation,
heating, ventilating, air conditioning, telephone, sewer, electrical,
mechanical, elevator, utility, plumbing, and other portions of the Leased
Property are in good working order.  Tenant waives any claim or action
against Landlord with respect to the condition of the Leased
Property.  LANDLORD MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR
IMPLIED, IN RESPECT OF THE LEASED PROPERTY OR ANY PART THEREOF, EITHER AS TO ITS
FITNESS FOR USE, DESIGN OR CONDITION FOR ANY PARTICULAR USE OR PURPOSE OR
OTHERWISE, OR AS TO QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, LATENT OR
PATENT, IT BEING AGREED THAT ALL SUCH RISKS ARE TO BE BORNE BY
TENANT.




6.3           Conditions of Use and
Occupancy.  Tenant agrees that during the Term it shall use and
keep the Leased Property in a careful, safe and proper manner; not commit or
suffer waste thereon; not use or occupy the Leased Property for any unlawful
purposes; not use or occupy the Leased Property or permit the same to be used or
occupied, for any purpose or business deemed extrahazardous on account of fire
or otherwise; keep the Leased Property in such repair and condition as may be
required by the Board of Health, or other city, state or federal authorities,
free of all cost to Landlord; not permit any acts to be done which will cause
the cancellation, invalidation, or suspension of any insurance policy; and
permit Landlord and its agents to enter upon the Leased Property at all
reasonable times to examine the condition thereof.  Landlord shall
have the right to have an annual inspection of the Leased Property performed and
Tenant shall pay an inspection fee of the lesser of $1,500.00 per Facility or
Landlord’s reasonable out-of-pocket expenses within 30 days after receipt
of Landlord’s invoice.




6.4           Tenant Solely
Responsible.  Tenant specifically acknowledges that it is
solely responsible for the operation and maintenance of the Louisiana Facility,
and that Landlord, its agents and employees, have no responsibility
therefor.




6.5           Opportunity to
Inspect.  TENANT ACKNOWLEDGES THAT IT HAS HAD
THE OPPORTUNITY TO INSPECT THE PREMISES OF THE LOUISIANA FACILITY AND, IN
ACCORDANCE WITH THE PROVISIONS OF LA. C.C. ARTICLE 2699, HEREBY
SPECIFICALLY WAIVES ANY AND ALL WARRANTIES PROVIDED BY THE PROVISIONS OF THE
LOUISIANA CIVIL CODE TO THE FULLEST EXTENT PERMITTED BY LAW.




ARTICLE
7:  MAINTENANCE AND MECHANICS’ LIENS




7.1           Maintenance.  Tenant
shall maintain, repair, and replace the Leased Property, including, without
limitation, all structural and nonstructural repairs and replacements to the
roof, foundations, exterior walls, HVAC systems, equipment, parking areas,
sidewalks, water, sewer and gas connections, pipes and mains.  Tenant
shall pay, as Additional Rent, the full cost of maintenance, repairs, and
replacements.  Tenant shall maintain all drives, sidewalks, parking
areas, and lawns on or about the Leased Property in a clean and orderly
condition, free of accumulations of dirt, rubbish, snow and
ice.  Tenant shall at all times maintain, operate and otherwise manage
the Leased Property on a basis and in a manner consistent with the standards
currently maintained by Tenant at the Leased Property.  All repairs
shall, to the extent reasonably




25


achievable,
be at least equivalent in quality to the original work or the property to be
repaired shall be replaced.  Tenant will not take or omit to take any
action the taking or omission of which might materially impair the value or the
usefulness of the Leased Property or any parts thereof for the Facility
Uses.  Tenant shall permit Landlord to inspect the Leased Property at
all reasonable times and on reasonable advance notice, and if Landlord has a
reasonable basis to believe that there are maintenance problem areas and gives
Tenant written notice thereof setting forth its concerns in reasonable detail,
Tenant shall deliver to Landlord a plan of correction within 10 Business
Days after receipt of the notice.  Tenant shall diligently pursue
correction of all problem areas within 60 days after receipt of the notice
or such longer period as may be necessary for reasons beyond its reasonable
control such as shortage of materials or delays in securing necessary permits,
but not caused by lack of diligence by Tenant, and, upon expiration of the
60-day period, shall deliver evidence of completion to Landlord or an interim
report evidencing Tenant’s diligent progress towards completion and, at the end
of the next 60-day period, evidence of satisfactory completion.  Upon
completion, Landlord shall have the right to re-inspect the Facility and Tenant
shall pay a re-inspection fee of $750.00 per Facility plus Landlord’s reasonable
out-of-pocket expenses within 30 days after receipt of Landlord’s
invoice.  At each inspection of the Leased Property by Landlord, the
Facility employee in charge of maintenance shall be available to tour the
Facility with Landlord and answer questions.




7.2           Required
Alterations.  Tenant shall, at Tenant’s sole cost and expense,
make any additions, changes, improvements or alterations to the Leased Property,
including structural alterations, which may be required by any governmental
authorities, including those required to maintain licensure or certification
under the Medicare and Medicaid programs (if so certified), whether such changes
are required by Tenant’s use, changes in the law, ordinances, or governmental
regulations, defects existing as of the date of this Lease, or any other cause
whatsoever.  All such additions, changes, improvements or alterations
shall be deemed to be Permitted Alterations and shall comply with all laws
requiring such alterations and with the provisions of §16.4.




7.3           Mechanic’s
Liens.  Tenant shall have no authority to permit or create a
lien against Landlord’s interest in the Leased Property, and Tenant shall post
notices or file such documents as may be required to protect Landlord’s interest
in the Leased Property against liens.  Tenant hereby agrees to defend,
indemnify, and hold Landlord harmless from and against any mechanic’s liens
against the Leased Property by reason of work, labor, services or materials
supplied or claimed to have been supplied on or to the Leased
Property.  Subject to Tenant’s right to contest the same in accordance
with the terms of this Lease, Tenant shall remove, bond-off, or otherwise obtain
the release of any mechanic’s lien filed against the Leased Property within
10 days after notice of the filing thereof.  Tenant shall pay all
expenses in connection therewith, including, without limitation, damages,
interest, court costs and reasonable attorneys’ fees.




7.4           Replacements of Fixtures and
Landlord’s Personal Property.  Tenant shall not remove Fixtures
and Landlord’s Personal Property from the Leased Property except to replace the
Fixtures and Landlord’s Personal Property with other similar items of equal
quality and value.  Items being replaced by Tenant may be removed and
shall become the property of Tenant and items replacing the same shall be and
remain the property of Landlord.  Tenant shall execute, upon written
request from Landlord, any and all documents necessary to evidence




26


Landlord’s
ownership of Landlord’s Personal Property and replacements
therefor.  Tenant may finance replacements for the Fixtures and
Landlord’s Personal Property by equipment lease or by a security agreement and
financing statement if, with respect to any financing of critical care equipment
and with respect to any other Personal Property having a value per Facility in
excess of $250,000.00, [i] Landlord has consented to the terms and
conditions of the equipment lease or security agreement; and [ii] the
equipment lessor or lender has entered into a nondisturbance agreement with
Landlord upon terms and conditions reasonably acceptable to Landlord, including,
without limitation, the following:  [a] Landlord shall have the
right (but not the obligation) to assume such security agreement or equipment
lease upon the occurrence of an Event of Default under this Lease; [b] the
equipment lessor or lender shall notify Landlord of any default by Tenant under
the equipment lease or security agreement and give Landlord a reasonable
opportunity to cure such default; and [c] Landlord shall have the right to
assign its rights under the equipment lease, security agreement, or
nondisturbance agreement.  Tenant shall, within 30 days after
receipt of an invoice from Landlord, reimburse Landlord for all costs and
expenses incurred in reviewing and approving the equipment lease, security
agreement, and nondisturbance agreement, including, without limitation,
reasonable attorneys’ fees and costs.




ARTICLE
8:  DEFAULTS AND REMEDIES




8.1           Events of
Default.  The occurrence of any one or more of the following
shall be an event of default (“Event of Default”) hereunder without any advance
notice to Tenant unless specified herein:




(a)  Tenant
fails to pay in full any installment of Base Rent, any Additional Rent or any
other monetary obligation payable by Tenant under this Lease within 10 days
after such payment is due.




(b)  Tenant,
Subtenant or Guarantor (where applicable) fails to comply with any covenant set
forth in Article 14, §§15.6, 15.7 or 15.8 of this Lease.




(c)  Tenant
fails to observe and perform any other covenant, condition or agreement under
this Lease to be performed by Tenant and [i] such failure continues for a
period of 30 days after written notice thereof is given to Tenant by
Landlord; or [ii] if, by reason of the nature of such default it cannot be
remedied within 30 days, Tenant fails to proceed with diligence reasonably
satisfactory to Landlord after receipt of the notice to cure the default or, in
any event, fails to cure such default within 60 days after receipt of the
notice.  The foregoing notice and cure provisions do not apply to any
Event of Default otherwise specifically described in any other subsection of
§8.1.




(d)  Tenant or
Subtenant abandons or vacates (except during a period of repair or
reconstruction after damage, destruction or a Taking) any Facility Property or
any material part thereof, ceases to operate any Facility, ceases to do business
or ceases to exist for any reason for any one or more days.




(e)  [i] The
filing by Tenant or Subtenant of a petition under the Bankruptcy Code or the
commencement of a bankruptcy or similar proceeding by Tenant, Subtenant or
Guarantor; [ii] the failure by Tenant, Subtenant or Guarantor within
60 days to




27


dismiss
an involuntary bankruptcy petition or other commencement of a bankruptcy,
reorganization or similar proceeding against such party, or to lift or stay any
execution, garnishment or attachment of such consequence as will impair its
ability to carry on its operation at the Leased Property; [iii] the entry
of an order for relief under the Bankruptcy Code in respect of Tenant, Subtenant
or Guarantor; [iv] any assignment by Tenant, Subtenant or Guarantor for the
benefit of its creditors; [v] the entry by Tenant, Subtenant or Guarantor
into an agreement of composition with its creditors; [vi] the approval by a
court of competent jurisdiction of a petition applicable to Tenant, Subtenant or
Guarantor in any proceeding for its reorganization instituted under the
provisions of any state or federal bankruptcy, insolvency, or similar laws;
[vii] appointment by final order, judgment, or decree of a court of
competent jurisdiction of a receiver of the whole or any substantial part of the
properties of Tenant, Subtenant or Guarantor (provided such receiver shall not
have been removed or discharged within 60 days of the date of his
qualification).




(f)  [i] Any
receiver, administrator, custodian or other person takes possession or control
of any of the Leased Property and continues in possession for 60 days;
[ii] any writ against any of the Leased Property is not released within
60 days; [iii] any judgment is rendered or proceedings are instituted
against the Leased Property, Tenant or Subtenant which adversely affect the
Leased Property or any part thereof, which is not dismissed for 60 days
(except as otherwise provided in this section); [iv] all or a substantial
part of the assets of Tenant, Subtenant or Guarantor are attached, seized,
subjected to a writ or distress warrant, or are levied upon, or come into the
possession of any receiver, trustee, custodian, or assignee for the benefit of
creditors; [v] Tenant or Subtenant is enjoined, restrained, or in any way
prevented by court order, or any proceeding is filed or commenced seeking to
enjoin, restrain or in any way prevent Tenant, Subtenant or Guarantor from
conducting all or a substantial part of its business or affairs; or
[vi] except as otherwise permitted hereunder, a final notice of lien, levy
or assessment is filed of record with respect to all or any part of the Leased
Property or any property of Tenant or Subtenant located at the Leased Property
and is not dismissed, discharged, or bonded-off within
30 days.




(g)  Any
representation or warranty made by Tenant, Subtenant or Guarantor in this Lease
or any other document executed in connection with this Lease, any guaranty of or
other security for this Lease, or any report, certificate, application,
financial statement or other instrument furnished by Tenant, Subtenant or
Guarantor pursuant hereto or thereto shall prove to be false, misleading or
incorrect in any material respect as of the date made.




(h)  Tenant,
any Subtenant or any Affiliate defaults on any indebtedness or obligation to
Landlord or any Landlord Affiliate, any Obligor Group or any agreement with
Landlord or any Landlord Affiliate, including, without limitation, any lease
with Landlord or any Landlord Affiliate, or the occurrence of a default under
any Material Obligation and any applicable grace or cure period with respect to
default under such indebtedness or obligation expires without such default
having been cured.  This provision applies to all such indebtedness,
obligations and agreements as they may be amended, modified, extended, or
renewed from time to time.




28


(i)  Any
guarantor of this Lease dissolves, terminates, is adjudicated incompetent, files
a petition in bankruptcy, or is adjudicated insolvent under the Bankruptcy Code
or any other insolvency law, or fails to comply with any covenant or requirement
of such guarantor set forth in this Lease or in the guaranty of such guarantor,
which is not cured within any applicable cure period.




(j)  The
license for the Facility or any other Government Authorization is canceled,
suspended, reduced to provisional or temporary, or otherwise invalidated, or
license revocation or decertification proceedings are commenced against Tenant
or Subtenant and, in each instance, such action is not stayed pending appeal,
or, as a result of the acts or omissions of Tenant or Subtenant, any reduction
of more than 5% occurs in the number of licensed beds or units at the Facility,
or an admissions ban is issued for the Facility and remains in effect for a
period of more than 45 days.




8.2           Remedies.  Upon
the occurrence of an Event of Default under this Lease or any Lease Document,
and at any time thereafter until Landlord waives the default in writing or
acknowledges cure of the default in writing, at Landlord’s option, without
declaration, notice of nonperformance, protest, notice of protest, notice of
default, notice to quit or any other notice or demand of any kind, Landlord may
exercise any and all rights and remedies provided in this Lease or any Lease
Document or otherwise provided under law or in equity, including, without
limitation, any one or more of the following remedies:




(a)  Landlord
may re-enter and take possession of the Leased Property or any portion thereof
without terminating this Lease, and lease such Leased Property for the account
of Tenant, holding Tenant liable for all costs of Landlord in reletting such
Leased Property and for the difference in the amount received by such reletting
and the amounts payable by Tenant under the Lease.




(b)  Landlord
may terminate this Lease with respect to all or any portion of the Leased
Property by written notice to Tenant, exclude Tenant from possession of such
Leased Property and use commercially reasonable efforts to lease such Leased
Property to others, holding Tenant liable for the difference in the amounts
received from such reletting and the amounts payable by Tenant under this
Lease.




(c)  Landlord
may re-enter the Leased Property or any portion thereof and have, repossess and
enjoy such Leased Property as if this Lease had not been made, and in such
event, Tenant and its successors and assigns shall remain liable for any
contingent or unliquidated obligations or sums owing at the time of such
repossession.




(d)  Landlord
may have access to and inspect, examine and make copies of the books and records
and any and all accounts, data and income tax and other returns of Tenant
insofar as they pertain to the Leased Property subject to Landlord’s obligation
to maintain the confidentiality of any patient or employee information in
accordance with the requirements of applicable State or federal
law.




29


(e)  Landlord
may accelerate all of the unpaid Rent hereunder based on the then current Rent
Schedule so that the aggregate Rent for the unexpired term of this Lease becomes
immediately due and payable.




(f)  Landlord
may take whatever action at law or in equity as may appear necessary or
desirable to collect the Rent and other amounts payable under this Lease then
due and thereafter to become due, or to enforce performance and observance of
any obligations, agreements or covenants of Tenant under this
Lease.




(g)  With
respect to the Collateral or any portion thereof and Secured Party’s security
interest therein, Secured Party may exercise all of its rights as secured party
under Article 9 of the Uniform Commercial Code.  Secured Party
may sell the Collateral by public or private sale upon five days notice to
Tenant or Subtenant.  Tenant and Subtenant agree that a commercially
reasonable manner of disposition of the Collateral shall include, without
limitation and at the option of Secured Party, a sale of the Collateral, in
whole or in part, concurrently with the sale of the Leased
Property.




(h)  Secured
Party may obtain control over and collect the Receivables and apply the proceeds
of the collections to satisfaction of the Obligor Group Obligations unless
prohibited by law.  Tenant and Subtenant appoint HCRI or its designee
as attorney for Tenant and Subtenant, respectively, with powers [i] to
receive, to endorse, to sign and/or to deliver, in Tenant’s or Subtenant’s name
or Secured Party’s name, any and all checks, drafts, and other instruments for
the payment of money relating to the Receivables, and to waive demand,
presentment, notice of dishonor, protest, and any other notice with respect to
any such instrument; [ii] to sign Tenant’s or Subtenant’s name on any
invoice or bill of lading relating to any Receivable, drafts against account
debtors, assignments and verifications of Receivables, and notices to account
debtors; [iii] to send verifications of Receivables to any account debtor;
and [iv] to do all other acts and things necessary to carry out this
Lease.  Absent gross negligence or willful misconduct of Secured
Party, Secured Party shall not be liable for any omissions, commissions, errors
of judgment, or mistakes in fact or law made in the exercise of any such
powers.  At Secured Party’s option, Tenant and Subtenant shall
[i] provide Secured Party a full accounting of all amounts received on
account of Receivables with such frequency and in such form as Secured Party may
require, either with or without applying all collections on Receivables in
payment of the Obligor Group Obligations or [ii] deliver to Secured Party
on the day of receipt all such collections in the form received and duly
endorsed by Tenant or Subtenant, as applicable.  At Secured Party’s
request, Tenant and Subtenant shall institute any action or enter into any
settlement determined by Secured Party to be necessary to obtain recovery or
redress from any account debtor in default of Receivables.  Secured
Party may give notice of its security interest in the Receivables to any or all
account debtors with instructions to make all payments on Receivables directly
to Secured Party, thereby terminating Tenant’s and Subtenant’s authority to
collect Receivables.  After terminating Tenant’s and Subtenant’s
authority to enforce or collect Receivables, Secured Party shall have the right
to take possession of any or all Receivables and records thereof and is hereby
authorized to do so, and only Secured Party shall have the right to collect and
enforce the Receivables.  Prior to the occurrence and during the
continuance of an Event of Default, at Tenant’s and Subtenant’s cost and
expense, but on behalf of Secured Party and for Secured Party’s account, Tenant
and Subtenant shall collect or otherwise enforce all amounts unpaid on
Receivables and hold all such collections in trust for




30


Secured
Party, but Tenant and Subtenant may commingle such collections with Tenant’s and
Subtenant’s own funds, until Tenant’s and Subtenant’s authority to do so has
been terminated, which may be done only after an Event of
Default.  Notwithstanding any other provision hereof, Secured Party
does not assume any of Tenant’s or Subtenant’s obligations under any Receivable,
and Secured Party shall not be responsible in any way for the performance of any
of the terms and conditions thereof by Tenant or Subtenant.




(i)  Without
waiving any prior or subsequent Event of Default, Landlord may waive any Event
of Default or, with or without waiving any Event of Default, remedy any
default.




(j)  Landlord
may terminate its obligation, if any, to disburse Investment
Advances.




(k)  Landlord
may enter and take possession of the Land or any portion thereof and any one or
more Facilities without terminating this Lease and complete construction and
renovation of the Improvements (or any part thereof) and perform the obligations
of Tenant under the Lease Documents.  Without limiting the generality
of the foregoing and for the purposes aforesaid, Tenant hereby appoints HCRI its
lawful attorney-in-fact with full power to do any of the
following:  [i] complete construction, renovation and equipping
of the Improvements in the name of Tenant; [ii] use unadvanced funds
remaining under the Investment Amount, or funds that may be reserved, escrowed,
or set aside for any purposes hereunder at any time, or to advance funds in
excess of the Investment Amount, to complete the Improvements; [iii] make
changes in the plans and specifications that shall be necessary or desirable to
complete the Improvements in substantially the manner contemplated by the plans
and specifications; [iv] retain or employ new general contractors,
subcontractors, architects, engineers, and inspectors as shall be required for
said purposes; [v] pay, settle, or compromise all existing bills and
claims, which may be liens or security interests, or to avoid such bills and
claims becoming liens against the Facility or security interest against fixtures
or equipment, or as may be necessary or desirable for the completion of the
construction and equipping of the Improvements or for the clearance of title;
[vi] execute all applications and certificates, in the name of Tenant, that
may be required in connection with any construction; [vii] do any and every
act that Tenant might do in its own behalf, to prosecute and defend all actions
or proceedings in connection with the Improvements; and [viii] to execute,
deliver and file all applications and other documents and take any and all
actions necessary to transfer the operations of the Facility to Secured Party or
Secured Party’s designee.  This power of attorney is a power coupled
with an interest and cannot be revoked.




(l)  Landlord
may apply, with or without notice to Tenant, for the appointment of a receiver
(“Receiver”) for Tenant or Tenant’s business or for the Leased Property;
provided, however, in the case of an Event of Default which relates to less than
all of the Leased Property, such Receiver’s power and authority shall be limited
to the affected Facility.  Unless prohibited by law, such appointment
may be made either before or after termination of Tenant’s possession of the
Leased Property, without notice, without regard to the solvency or insolvency of
Tenant at the time of application for such Receiver and without regard to the
then value of the Leased Property, and Secured Party may be appointed as
Receiver.  After the occurrence and during the continuance of an Event
of Default, Landlord shall be entitled to




31


appointment
of a receiver as a matter of right and without the need to make any showing
other than the existence of an Event of Default.  The Receiver shall
have the power to collect the rents, income, profits and Receivables of the
Leased Property during the pendency of the receivership and all other powers
which may be necessary or are usual in such cases for the protection,
possession, control, management and operation of the Leased Property during the
whole of said proceeding.  All sums of money received by the Receiver
from such rents and income, after deducting therefrom the reasonable charges and
expenses paid or incurred in connection with the collection and disbursement
thereof, shall be applied to the payment of the Rent or any other monetary
obligation of Tenant under this Lease, including, without limitation, any losses
or damages incurred by Landlord under this Lease.  Tenant, if
requested to do so, will consent to the appointment of any such Receiver as
aforesaid.




(m)  Landlord
may terminate any management agreement with respect to any of the Leased
Property and shall have the right to retain one or more managers for the Leased
Property at the expense of Tenant, such manager(s) to serve for such term and at
such compensation as Landlord reasonably determines is necessary under the
circumstances.




8.3           Right of
Set-Off.  Landlord may, and is hereby authorized by Tenant to,
at any time and from time to time without advance notice to Tenant (any such
notice being expressly waived by Tenant), set-off or recoup and apply any and
all sums held by Landlord, any indebtedness of Landlord to Tenant, and any
claims by Tenant against Landlord, against any obligations of Tenant hereunder
and against any claims by Landlord against Tenant, whether or not such
obligations or claims of Tenant are matured and whether or not Landlord has
exercised any other remedies hereunder.  The rights of Landlord under
this section are in addition to any other rights and remedies Landlord may have
against Tenant.




8.4           Performance of Tenant’s
Covenants.  Landlord may perform any obligation of Tenant which
Tenant has failed to perform within five days after Landlord has sent a written
notice to Tenant informing it of its specific failure.  Tenant shall
reimburse Landlord on demand, as General Additional Rent, for any expenditures
thus incurred by Landlord and shall pay interest thereon at Landlord’s rate of
return as provided in the Commitment.




8.5           Late Payment
Charge.




(a)  Rent.  Tenant
acknowledges that any default in the payment of any installment of Rent payable
hereunder will result in loss and additional expense to Landlord in servicing
any indebtedness of Landlord secured by the Leased Property, handling such
delinquent payments, and meeting its other financial obligations, and because
such loss and additional expense is extremely difficult and impractical to
ascertain, Tenant agrees that in the event any Rent payable to Landlord
hereunder is not paid within 10 days after the due date, Tenant shall pay a
late charge of 5% of the amount of the overdue payment as a reasonable estimate
of such loss and expenses, unless applicable law requires a lesser charge, in
which event the maximum rate permitted by such law may be charged by
Landlord.  The 10-day period set forth in this section shall run
concurrently with the 10-day period contemplated under §8.1(a) and shall not
otherwise extend the time for payment of Rent or the period for curing any
default or constitute a waiver of such default.




32


(b)  Non-Rent
Obligations.  With respect to Non-Rent obligations, Tenant
acknowledges that any default in the payment of any amount payable by Tenant to
Landlord under this Lease will result in loss and additional expense to Landlord
in servicing any indebtedness of Landlord secured by the Leased Property,
handling such delinquent payments, and meeting its other financial obligations,
and because such loss and additional expense is extremely difficult and
impractical to ascertain, Tenant agrees that in the event such amount is not
paid within 10 days after the due date or within 10 days after receipt
of any invoice from Landlord (if Landlord is obligated under the terms of the
Lease to provide an invoice), Tenant shall pay a late charge of 5% of the amount
of the overdue payment as a reasonable estimate of such loss and expenses,
unless applicable law requires a lesser charge, in which event the maximum rate
permitted by such law may be charged by Landlord.  The 10-day period
set forth in this section shall run concurrently with the 10-day period
contemplated under §8.1(a) and shall not otherwise extend the time for payment
of the invoice or the period for curing any default or constitute a waiver of
such default.




8.6           Default
Rent.  At Landlord’s option at any time after the occurrence of
an Event of Default and while such Event of Default remains uncured, the Base
Rent payable under this Lease shall be increased to reflect Landlord’s rate of
return of 18.5% per annum on the Investment Amount (“Default Rent”); provided,
however, that if a court of competent jurisdiction determines that any other
amounts payable under this Lease are deemed to be interest, the Default Rent
shall be adjusted to ensure that the aggregate interest payable under this Lease
does not accrue at a rate in excess of the maximum legal rate.




8.7           Attorneys’
Fees.  Tenant shall pay all reasonable costs and expenses
incurred by Landlord in enforcing or preserving Landlord’s rights under this
Lease, whether or not an Event of Default has actually occurred or has been
declared and thereafter cured, including, without limitation, [i] the fees,
expenses, and costs of any litigation, appellate, receivership, administrative,
bankruptcy, insolvency or other similar proceeding; [ii] reasonable
attorney, paralegal, consulting and witness fees and disbursements; and
[iii] the expenses, including, without limitation, lodging, meals, and
transportation, of Landlord and its employees, agents, attorneys, and witnesses
in preparing for litigation, administrative, bankruptcy, insolvency or other
similar proceedings and attendance at hearings, depositions, and trials in
connection therewith.  All such reasonable costs, expenses, charges
and fees payable by Tenant shall be deemed to be General Additional Rent under
this Lease.




8.8           Escrows and Application of
Payments.  As security for the performance of the Obligor Group
Obligations, Tenant hereby assigns to Landlord all its right, title, and
interest in and to all monies escrowed with Landlord under this Lease and all
deposits with utility companies, taxing authorities and insurance companies;
provided, however, that Landlord shall not exercise its rights hereunder until
an Event of Default has occurred.  Any payments received by Landlord
under any provisions of this Lease during the existence or continuance of an
Event of Default shall be applied to the Obligor Group Obligations in the order
which Landlord may determine.




8.9           Remedies
Cumulative.  The remedies of Landlord herein are cumulative to
and not in lieu of any other remedies available to Landlord at law or in
equity.  The use of any one remedy shall not be taken to exclude or
waive the right to use any other remedy.




33


8.10           Waivers.  Tenant
waives [i] any notice required by statute or other law as a condition to
bringing an action for possession of, or eviction from, any of the Leased
Property, [ii] any right of re-entry or repossession, [iii] any right
to a trial by jury in any action or proceeding arising out of or relating to
this Lease, [iv] any right of redemption whether pursuant to statute, at
law or in equity, [v] all presentments, demands for performance, notices of
nonperformance, protest, notices of protest, notices of dishonor, notices to
quit and any other notice or demand of any kind (other than those specifically
provided for in this Lease, and [vi] all notices of the existence, creation
or incurring of any obligation or advance under this Lease before or after this
date.




8.11           Obligations Under the
Bankruptcy Code.  Upon filing of a petition by or against
Tenant under the Bankruptcy Code, Tenant, as debtor and as debtor-in-possession,
and any trustee who may be appointed with respect to the assets of or estate in
bankruptcy of Tenant, agree to pay monthly in advance on the first day of each
month, as reasonable compensation for the use and occupancy of the Leased
Property, an amount equal to all Rent due pursuant to this
Lease.  Included within and in addition to any other conditions or
obligations imposed upon Tenant or its successor in the event of the assumption
and/or assignment of this Lease are the following:  [i] the cure
of any monetary defaults and reimbursement of pecuniary loss within not more
than five Business Days of assumption and/or assignment; [ii] the deposit
of an additional amount equal to not less than three months’ Base Rent, which
amount is agreed to be a necessary and appropriate deposit to adequately assure
the future performance under this Lease of the Tenant or its assignee; and
[iii] the continued use of the Leased Property for the Facility
Uses.  Nothing herein shall be construed as an agreement by Landlord
to any assignment of this Lease or a waiver of Landlord’s right to seek adequate
assurance of future performance in addition to that set forth hereinabove in
connection with any proposed assumption and/or assignment of this
Lease.




8.12           California
Remedies.  In addition to the provisions set forth above, for
each Facility located in the State of California, the following provisions shall
apply and shall supersede any provision in violation of the laws of the State of
California:




8.12.1                      Remedies.  On
the occurrence of an Event of Default, Landlord may at any time thereafter and
prior to the cure of such Event of Default, upon giving written notice to Tenant
but without limiting Landlord in the exercise of a right or remedy which
Landlord may have by reason of an Event of Default, do any of the
following:




(a)  Landlord
may elect to continue the term of this Lease in full force and effect and not
terminate Tenant’s right to possession of the Leased Property, in which event
Landlord shall have the right to enforce any rights and remedies granted by this
Lease or by law against Tenant, including, without limitation, the right to
collect when due Rent and other sums payable hereunder.  Landlord
shall not be deemed to have elected to terminate this Lease unless Landlord
gives Tenant written notice of such election to terminate.  Landlord’s
acts of maintenance or preservation of the Leased Property or efforts to relet
the Leased Property shall not terminate this Lease.




(b)  Landlord
may elect immediately upon written notice to Tenant to terminate this Lease at
any time prior to Tenant’s cure of an Event of Default and in such
event




34


Landlord
may, at Landlord’s option, declare this Lease and Tenant’s right to possession
of the Leased Property terminated, reenter the Leased Property, remove Tenant’s
Property therefrom and dispose of it in any manner whatsoever allowed by law at
Tenant’s expense or store it for Tenant’s account and at Tenant’s risk and
expense (but Landlord shall not be required to effect such removal), eject all
persons from the Leased Property and recover damages from Tenant as hereinafter
provided.  Any such reentry shall be permitted by Tenant without
hindrance.  Landlord shall not thereby be liable in damages for such
reentry or be guilty of trespass, forcible entry or unlawful
detainer.  If Landlord so terminates this Lease and Tenant’s right to
possession, such termination shall cancel all Tenant’s options, if any, to
extend or renew the term of this Lease.




(c)  Landlord
may at its sole discretion elect to notify any Subtenant (or assignee) of the
Leased Property of the existence of an Event of Default by Tenant in writing and
thereafter all Rent and other amounts due from any Subtenant of the Leased
Property shall be paid to Landlord and Landlord shall apply such Rent and other
amounts in payment of the amounts due from Tenant under this
Lease.  The delivery of such notice to any Subtenant and the
collection of such Rent and other amounts by Landlord shall not terminate this
Lease.  Upon Tenant’s cure of the Event of Default and receipt by
Landlord of all Rent and other amounts due from Tenant, Landlord shall notify
Subtenant (or assignee) to make payments as provided in its sublease or
lease.




8.12.2                      Damages.  In
the event Landlord elects to terminate this Lease and Tenant’s right to
possession in accordance with §8.12.1(b), or the same are terminated by
operation of law due to an Event of Default, Landlord may recover as damages
from Tenant the following:




(a)  The worth
at the time of award of the unpaid Rent and other sums due hereunder which had
been earned at the time of termination of the Lease;




(b)  The worth
at the time of award of the amount by which the unpaid Rent and other sums due
hereunder which would have been earned after the date of termination of this
Lease until the time of award exceeds the amount of such loss of Rent and other
sums due that Tenant proves could have been reasonably avoided;




(c)  The worth
at the time of the award of the amount by which the unpaid Rent and other sums
due hereunder for the balance of the term after the time of award exceeds the
amount of the loss of such Rent and other sums that Tenant proves could be
reasonably avoided;




(d)  Any other
amount, including but not limited to reasonable attorneys’ fees and court costs,
leasing commissions and all costs and expenses incurred by Landlord in reletting
the Leased Property or preparing, altering or remodeling the Leased Property for
such reletting.  Landlord shall also recover any amount which is
necessary to compensate Landlord for all detriment proximately caused by
Tenant’s act of default or which in the ordinary course of things would be
likely to result therefrom; and




35


(e)  At
Landlord’s election, such other amounts in addition to or in lieu of the
foregoing as may be permitted from time to time by applicable law.




The
“worth at the time of award” of the amounts referred to in §8.12.2(a) and (b)
above, is computed by allowing interest at the maximum legal rate of
interest.  The “worth at the time of award” of the amount referred to
in §8.12.2(c) above, is computed by discounting such amount at the discount rate
of Federal Reserve Bank of San Francisco at the time of award plus
1%.




ARTICLE
9:  DAMAGE AND DESTRUCTION




9.1           Notice of
Casualty.  If the Leased Property shall be destroyed, in whole
or in part, or damaged by fire, flood, windstorm or other casualty in excess of
$150,000.00 (a “Casualty”), Tenant shall give written notice thereof to Landlord
within two Business Days after the occurrence of the Casualty.  Within
15 days after the occurrence of the Casualty or as soon thereafter as such
information is reasonably available to Tenant, Tenant shall provide the
following information to Landlord:  [i] the date of the Casualty;
[ii] the nature of the Casualty; [iii] a description of the damage or
destruction caused by the Casualty, including the type of Leased Property
damaged and the area of the Improvements damaged; [iv] a preliminary
estimate of the cost to repair, rebuild, restore or replace the Leased Property;
[v] a preliminary estimate of the schedule to complete the repair,
rebuilding, restoration or replacement of the Leased Property; [vi] a
description of the anticipated property insurance claim, including the name of
the insurer, the insurance coverage limits, the deductible amount, the expected
settlement amount, and the expected settlement date; and [vii] a
description of the business interruption claim, including the name of the
insurer, the insurance coverage limits, the deductible amount, the expected
settlement amount, and the expected settlement date.  Within five days
after request from Landlord, Tenant will provide Landlord with copies of all
correspondence to the insurer and any other information reasonably requested by
Landlord.




9.2           Substantial
Destruction.




9.2.1                      If
any Facility’s Improvements are substantially destroyed at any time other than
during the final 18 months of the Initial Term or any Renewal Term, Tenant
shall promptly rebuild and restore such Improvements in accordance with §9.4 and
Landlord shall make the insurance proceeds available to Tenant for such
restoration.  The term “substantially destroyed” means any casualty
resulting in the loss of use of 50% or more of the licensed beds at any one
Facility.




9.2.2                      If
any Facility’s Improvements are substantially destroyed during the final
18 months of the Initial Term or any Renewal Term, Landlord may elect to
terminate this Lease with respect to the entire Leased Property and retain the
insurance proceeds unless Tenant exercises its option to renew as set forth in
§9.2.3.  If Landlord elects to terminate, Landlord shall give notice
(“Termination Notice”) of its election to terminate this Lease within
30 days after receipt of Tenant’s notice of the damage.  If
Tenant does not exercise its option to renew under §9.2.3 within 15 days
after delivery of the Termination Notice, this Lease shall terminate on the
15th day
after delivery of the Termination Notice.  If this Lease is so
terminated, Tenant shall be liable to Landlord for all Rent and all other
obligations accrued under this Lease through the effective date of
termination.




36


9.2.3                      If
any Facility’s Improvements are substantially destroyed during the final
18 months of the Initial Term or the Renewal Term and Landlord gives the
Termination Notice, Tenant shall have the option to renew this Lease with
respect to the entire Leased Property (but not any part
thereof).  Tenant shall give Landlord irrevocable notice of Tenant’s
election to renew within 15 days after delivery of the Termination
Notice.  If Tenant elects to renew, the Renewal Term will be in effect
for the balance of the then current Term plus a 15-year period.  The
Renewal Term will commence on the third day following Landlord’s receipt of
Tenant’s notice of renewal.  All other terms of this Lease for the
Renewal Term shall be in accordance with Article 12.  The
Improvements will be restored by Tenant in accordance with the provisions of
this Article 9 regarding partial destruction.




9.3           Partial
Destruction.  If any Facility’s Improvements are not
substantially destroyed, then Tenant shall comply with the provisions of §9.4
and Landlord shall make the insurance proceeds available to Tenant for such
restoration.




9.4           Restoration.  Subject
to any limitations imposed by law with respect to the rebuilding of the Leased
Premises, Tenant shall promptly repair, rebuild, or restore the damaged Leased
Property, at Tenant’s expense, so as to make the Leased Property at least equal
in value to the Leased Property existing immediately prior to such occurrence
and as nearly similar to it in character as is practicable and
reasonable.  Before beginning such repairs or rebuilding, or letting
any contracts in connection with such repairs or rebuilding with respect to any
Casualty, Tenant will submit for Landlord’s approval, which approval Landlord
will not unreasonably withhold or delay, plans and specifications meeting the
requirements of §16.2 for such repairs or rebuilding.  Promptly after
receiving Landlord’s approval of the plans and specifications, Tenant will begin
such repairs or rebuilding and will prosecute the repairs and rebuilding to
completion with diligence, subject, however, to strikes, lockouts, acts of God,
embargoes, governmental restrictions, and other causes beyond Tenant’s
reasonable control.  Landlord will make available to Tenant the net
proceeds of any fire or other casualty insurance paid to Landlord for such
repair or rebuilding as the same progresses, after deduction of any costs of
collection, including reasonable attorneys’ fees.  Payments will be
made against properly certified vouchers of a competent architect in charge of
the work and approved by Landlord.  Payments for deposits for the
repairing or rebuilding or delivery of materials to the Facility will be made
upon Landlord’s receipt of evidence satisfactory to Landlord that such payments
are required in advance.  With respect to any Casualty, prior to
commencing the repairing or rebuilding, Tenant shall deliver to Landlord for
Landlord’s approval a schedule setting forth the estimated monthly draws for
such work.  Landlord will contribute to such payments out of the
insurance proceeds an amount equal to the proportion that the total net amount
received by Landlord from insurers bears to the total estimated cost of the
rebuilding or repairing, multiplied by the payment by Tenant on account of such
work.  Landlord may, however, withhold 10% from each payment until the
work is completed and proof has been furnished to Landlord that no lien or
liability has attached or will attach to the Leased Property or to Landlord in
connection with such repairing or rebuilding.  Upon the completion of
rebuilding and the furnishing of such proof, the balance of the net proceeds of
such insurance payable to Tenant on account of such repairing or rebuilding will
be paid to Tenant.  If required by law as a result of the nature or
extent of the damage, Tenant will obtain and deliver to Landlord a temporary or
final certificate of occupancy before the damaged Leased Property is reoccupied
for any purpose.  Tenant shall complete such repairs or rebuilding
free and clear of mechanic’s or other liens, and in accordance with the building
codes and all




37


applicable
laws, ordinances, regulations, or orders of any state, municipal, or other
public authority affecting the repairs or rebuilding, and also in accordance
with all requirements of the insurance rating organization, or similar
body.  Any remaining proceeds of insurance after such restoration will
be Tenant’s property.




9.5           Insufficient
Proceeds.  If the proceeds of any insurance settlement are not
sufficient to pay the costs of Tenant’s repair, rebuilding or restoration under
§9.4 in full, Tenant shall deposit with Landlord at Landlord’s option, and
within 10 days of Landlord’s request, an amount sufficient in Landlord’s
reasonable judgment to complete such repair, rebuilding or restoration or shall
provide Landlord with evidence reasonably satisfactory to Landlord that Tenant
has available the funds needed to complete such repair, rebuilding or
restoration.  Tenant shall not, by reason of the deposit or payment,
be entitled to any reimbursement from Landlord or diminution in or postponement
of the payment of the Rent.




9.6           Not Trust
Funds.  Notwithstanding anything herein or at law or equity to
the contrary, none of the insurance proceeds paid to Landlord as herein provided
shall be deemed trust funds, and Landlord shall be entitled to dispose of such
proceeds as provided in this Article 9.  Tenant expressly assumes
all risk of loss, including a decrease in the use, enjoyment or value, of the
Leased Property from any casualty whatsoever, whether or not insurable or
insured against.




9.7           Landlord’s
Inspection.  During the progress of such repairs or rebuilding,
Landlord and its architects and engineers may, from time to time, inspect the
Leased Property and will be furnished, if required by them, with copies of all
plans, shop drawings, and specifications relating to such repairs or
rebuilding.  Tenant will keep all plans, shop drawings, and
specifications at the building, and Landlord and its architects and engineers
may examine them at all reasonable times and on reasonable
notice.  If, during such repairs or rebuilding, Landlord and its
architects and engineers determine that the repairs or rebuilding are not being
done in accordance with the approved plans and specifications, Landlord will
give prompt notice in writing to Tenant, specifying in detail the particular
deficiency, omission, or other respect in which Landlord claims such repairs or
rebuilding do not accord with the approved plans and
specifications.  Upon the receipt of any such notice, Tenant will
cause corrections to be made to any deficiencies, omissions, or such other
respect.  Tenant’s obligations to supply insurance, according to
Article 4, will be applicable to any repairs or rebuilding under this
section.




9.8           Landlord’s
Costs.  Tenant shall, within 30 days after receipt of an
invoice from Landlord, pay the costs, expenses, and fees of any architect or
engineer employed by Landlord to review any plans and specifications and to
supervise and approve any construction, or for any services rendered by such
architect or engineer to Landlord as contemplated by any of the provisions of
this Lease, or for any services performed by Landlord’s attorneys in connection
therewith.




9.9           No Rent
Abatement.  Rent will not abate pending the repairs or
rebuilding of the Leased Property.




38


ARTICLE
10:  CONDEMNATION




10.1           Total
Taking.  If, by exercise of the right of eminent domain or by
conveyance made in response to the threat of the exercise of such right
(“Taking”), any entire Facility Property is taken, or so much of any Facility
Property is taken that the number of licensed beds/units at the Facility
Property is reduced by more than 25% as a result of such Taking, then this Lease
will end with respect to such Facility Property only on the earlier of the
vesting of title to the Facility Property in the condemning authority or the
taking of possession of the Facility Property by the condemning
authority.  Upon such termination, the Investment Amount shall be
reduced by the amount received by Landlord as a result of the Taking unless
there is only one Facility Property subject to this Lease in which case the
Lease will terminate.  The removal from this Lease of one Facility
Property due to a taking is the result of circumstances beyond the control of
Landlord and Tenant and the parties affirm that, except for such isolated
situation or as otherwise specifically provided elsewhere in this Lease for the
removal of one or more of the Facility under certain defined circumstances, this
Lease is intended to be a single indivisible Lease.  All damages
awarded for such Taking under the power of eminent domain shall be the property
of Landlord, whether such damages shall be awarded as compensation for
diminution in value of the leasehold or the fee of the Facility Property;
provided, however, nothing herein shall preclude Tenant from pursuing a separate
award for the Taking of its Tenant’s Property (as defined below) or for
relocation costs or expenses.




10.2           Partial
Taking.  If, after a Taking, so much of the Facility Property
remains that the Facility Property can be used for substantially the same
purposes for which it was used immediately before the Taking, then [i] this
Lease will end as to the part taken on the earlier of the vesting of title to
such Leased Property in the condemning authority or the taking of possession of
such Leased Property by the condemning authority and the Rent will be adjusted
accordingly; [ii] at its cost, Tenant shall restore so much of the Facility
Property as remains to a sound architectural unit substantially suitable for the
purposes for which it was used immediately before the Taking, using good
workmanship and new, first-class materials; [iii] upon completion of the
restoration, Landlord will pay Tenant the lesser of the net award made to
Landlord on the account of the Taking (after deducting from the total award,
reasonable attorneys’, appraisers’, and other fees and costs incurred in
connection with the obtaining of the award and amounts paid to the holders of
mortgages secured by the Facility Property), or Tenant’s actual out-of-pocket
costs of restoring the Facility Property; and [iv] Landlord shall be
entitled to the balance of the net award except to the extent specifically
allocated to the value of Tenant’s Property or any relocation costs or expenses
incurred by Tenant as a result of such Partial Taking.  The
restoration shall be completed in accordance with §§9.4, 9.5, 9.7, 9.8 and 9.9
with such provisions deemed to apply to condemnation instead of
casualty.




10.3           Condemnation Proceeds Not
Trust Funds.  Notwithstanding anything in this Lease or at law
or equity to the contrary, none of the condemnation award paid to Landlord shall
be deemed trust funds, and Landlord shall be entitled to dispose of such
proceeds as provided in this Article 10.  Tenant expressly
assumes all risk of loss, including a decrease in the use, enjoyment, or value,
of the Leased Property from any Condemnation.




39


ARTICLE
11:  TENANT’S PROPERTY




11.1           Tenant’s
Property.  Tenant shall have the right to install, place, and
use on the Leased Property such fixtures, furniture, equipment, inventory and
other personal property in addition to Landlord’s Personal Property as may be
required or as Tenant may, from time to time, deem necessary or useful to
operate the Leased Property for its permitted purposes.  All fixtures,
furniture, equipment, inventory, and other personal property installed, placed,
or used on the Leased Property which is owned by Tenant or leased by Tenant from
third parties is hereinafter referred to as “Tenant’s Property”.




11.2           Requirements for Tenant’s
Property.  Tenant shall comply with all of the following
requirements in connection with Tenant’s Property:




(a)  Tenant
shall, at Tenant’s sole cost and expense, maintain, repair, and replace Tenant’s
Property.




(b)  Tenant
shall, at Tenant’s sole cost and expense, keep Tenant’s Property insured against
loss or damage by fire, vandalism and malicious mischief, sprinkler leakage,
earthquake, and other physical loss perils commonly covered by fire and extended
coverage, boiler and machinery, and difference in conditions insurance in an
amount not less than 90% of the then full replacement cost
thereof.  Tenant shall use the proceeds from any such policy for the
repair and replacement of Tenant’s Property.  The insurance shall meet
the requirements of §4.3.




(c)  Tenant
shall pay all taxes applicable to Tenant’s Property.




(d)  If
Tenant’s Property is damaged or destroyed by fire or any other cause, Tenant
shall have the right, but not the obligation, to repair or replace Tenant’s
Property (unless the same is required for the operation of the Leased Property
in compliance with applicable Legal Requirements, in which case Tenant shall be
required to promptly repair or replace the same) unless Landlord elects to
terminate this Lease pursuant to §9.2.2.




(e)  Unless an
Event of Default or any event which, with the giving of notice or lapse of time,
or both, would constitute an Event of Default has occurred, Tenant may remove
Tenant’s Property from the Leased Property from time to time provided that
[i] the items removed are not required to operate the Leased Property for
the Facility Uses (unless such items are being replaced by Tenant); and
[ii] Tenant repairs any damage to the Leased Property resulting from the
removal of Tenant’s Property.




(f)  Tenant
shall not, without the prior written consent of Landlord or as otherwise
provided in this Lease, remove any Tenant’s Property or Leased
Property.  Tenant shall, at Landlord’s option, remove Tenant’s
Property upon the termination or expiration of this Lease and shall repair any
damage to the Leased Property resulting from the removal of Tenant’s
Property.  If Tenant fails to remove Tenant’s Property within
30 days after request by Landlord, then Tenant shall be deemed to have
abandoned Tenant’s Property, Tenant’s Property shall become the property of
Landlord, and Landlord may remove, store and dispose of Tenant’s
Property.  In such event, Tenant shall have no claim or right against
Landlord for such property or the value thereof regardless of the disposition
thereof by Landlord.  Tenant shall pay




40


Landlord,
upon demand, all expenses incurred by Landlord in removing, storing, and
disposing of Tenant’s Property and repairing any damage caused by such
removal.  Tenant’s obligations hereunder shall survive the termination
or expiration of this Lease.




(g)  Tenant
shall perform its obligations under any equipment lease or security agreement
for Tenant’s Property.  For equipment loans or leases for critical
care equipment and for all other equipment having an original cost in excess of
$250,000.00 per Facility, Tenant shall cause such equipment lessor or lender to
enter into a nondisturbance agreement with Landlord upon terms and conditions
acceptable to Landlord, including, without limitation, the
following:  [i] Landlord shall have the right (but not the
obligation) to assume such equipment lease or security agreement upon the
occurrence of an Event of Default by Tenant hereunder; [ii] such equipment
lessor or lender shall notify Landlord of any default by Tenant under the
equipment lease or security agreement and give Landlord a reasonable opportunity
to cure such default; and [iii] Landlord shall have the right to assign its
interest in the equipment lease or security agreement and nondisturbance
agreement.  Tenant shall, within 30 days after receipt of an
invoice from Landlord, reimburse Landlord for all costs and expenses incurred in
reviewing and approving the equipment lease, security agreement and
nondisturbance agreement, including, without limitation, reasonable attorneys’
fees and costs.




ARTICLE
12:  RENEWAL OPTIONS




12.1           Renewal
Options.  Tenant has the option to renew (“Renewal Option”)
this Lease for one 15-year renewal term (“Renewal Term”).  Tenant can
exercise the Renewal Option only upon satisfaction of the following
conditions:




(a)  There
shall be no uncured Event of Default, or any event which with the passage of
time or giving of notice would constitute an Event of Default, at the time
Tenant exercises its Renewal Option nor on the date the Renewal Term is to
commence.




(b)  Tenant
shall give Landlord irrevocable written notice of renewal no later than the date
which is [i] 90 days prior to the expiration date of the then current
Term; or [ii] 15 days after Landlord’s delivery of the Termination
Notice as set forth in §9.2.3.




12.2           Effect of
Renewal.  The following terms and conditions will be applicable
if Tenant renews the Lease:




(a)  Effective
Date.  Except as otherwise provided in §9.2.3, the effective
date of any Renewal Term will be the first day after the expiration date of the
then current Term.  The first day of each Renewal Term is also
referred to as the Renewal Date.




(b)  Investment
Amount.  Effective as of the Renewal Date, a single Investment
Amount will be computed by summing all Investment Advance Amounts.




(c)  Rent
Adjustment.  Effective as of the Renewal Date, Landlord shall
calculate Base Rent for the Renewal Term in accordance with §2.1(c)(2) of the
Commitment and shall issue a new Rent Schedule reflecting the Base
Rent.  Until Tenant receives a revised Rent Schedule from Landlord,
Tenant shall for each month [i] continue to make installments of Base Rent
according to the Rent Schedule in effect on the day before the Renewal Date;
and




41


[ii] within
10 days following Landlord’s issuance of an invoice, pay the difference
between the installment of Base Rent paid to Landlord for such month and the
installment of Base Rent actually due for such month as a result of the renewal
of the Lease.




(d)  Other Terms and
Conditions.  Except for the modifications set forth in this
§12.2, all other terms and conditions of the Lease will remain the same for the
Renewal Term.




ARTICLE
13:  RIGHT OF FIRST OPPORTUNITY AND OPTION TO PURCHASE




13.1           Right of First
Opportunity.  In the event at any time during the Term either
[i] Landlord elects to seek a purchaser of the Leased Property (the “Right
of First Opportunity Event”) or [ii] Landlord receives a bona fide offer
from a third party (the “Offer”) setting forth the terms and conditions upon
which it proposes to purchase the Leased Property which it is interested in
accepting, but in no event shall Landlord be obligated to accept (the “Right of
First Refusal Event”), the following provisions shall apply:




(a)  In the
event of the occurrence of the Right of First Opportunity Event, Landlord shall
provide Tenant with written notice of its intent to sell the Leased Property and
its proposed terms with respect thereto (the “Opportunity
Notice”).  Landlord and Tenant shall have a period of 30 days
after Tenant’s receipt of the Opportunity Notice (the “Protected Period”) to
negotiate in good faith with respect to the terms and conditions under which
such transaction shall occur provided that in no event shall the purchase price
be less than the Base Price and shall occur on the terms and conditions set
forth in the Transaction Documents (as defined below) (the “Opportunity
Transaction”).  In the event Landlord and Tenant are unable to reach
agreement within the Protected Period with respect to the terms of the
Opportunity Transaction, then Landlord shall be free to enter into negotiations
with respect to the Opportunity Transaction with any other person or entity;
provided, however, that Landlord shall not be permitted to consummate a
transaction with any other person or entity on terms which are less favorable to
Landlord than those offered to Tenant during the Protected Period without first
offering Tenant the opportunity on written notice setting forth such terms to
consummate the Opportunity Transaction on such alternative terms and conditions
(the “Modified Opportunity Notice”); provided, however, that Tenant shall be
deemed to have waived its right to proceed with such revised Opportunity
Transaction in the event it does not advise Landlord of its election to proceed
within 10 days after its receipt of the Modified Opportunity
Notice.




(b)  In the
event of the occurrence of a Right of First Refusal Event, Landlord shall
provide Tenant with a true and correct copy of the Offer (the “Right of First
Refusal Notice”).  Tenant shall have 20 days from its receipt of
the Right of First Refusal Notice to advise Landlord in writing whether it is
prepared to purchase the Leased Property on the same terms and conditions as set
forth in the Offer.  Tenant’s failure to so advise Landlord within
such 20 day period shall be deemed to be a determination by Tenant not to
exercise the right of first refusal provided for herein, at which time Landlord
shall be free to consummate the transaction which was the subject of the Offer;
provided, however, that Landlord shall not be permitted to modify the terms
specified in the Offer in an manner more favorable to the third party than those
reflected in the original Offer (the “Modified Offer”) without first again
offering Tenant the opportunity to consummate a transaction on the terms set
forth in the Modified Offer; provided,




42


however,
that Tenant shall be deemed to have waived its right to proceed with such a
transaction in the event it does not advise Landlord of its election to proceed
within 10 days after its receipt of the Modified Offer.




(c)  In the
event Landlord does not consummate a transaction on the terms provided for in
the Offer or the Modified Offer, as applicable, within 90 days after the
date thereof, Landlord shall not be permitted to sell the Leased Property to the
Offeror or to any other party, whether on the terms set forth in the Offer or
the Modified Offer, as applicable, or pursuant to a new Offer without again
first offering Tenant an option to consummate a transaction on the terms
specified in the Offer, the Modified Offer or any new Offer, as applicable;
provided, however, that Tenant shall be deemed to have waived its rights
hereunder in the event it does not advise Landlord of its election to proceed
within 10 days after its receipt of another copy of the Offer or of the
Modified Offer or the new Offer, as applicable.




(d)  In the
event Tenant exercises its right of first refusal or right of first opportunity
provided for herein, Tenant and Landlord shall have a period of 30 days in
which to enter into one or more written agreements outlining the terms and
conditions, in addition to those set forth in the Offer or Modified Offer, if
applicable, on which the sale will occur (the “Transaction
Documents”).  In the event Landlord and Tenant fail to execute the
Transaction Documents within said 30 day period, then Tenant shall be
deemed to have forfeited its rights hereunder with respect to such transaction;
provided, however, that Landlord shall not be permitted to sell the Leased
Property to any other person or entity on terms which are less favorable to
Landlord than those offered to Tenant during the Protected Period or beyond the
expiration of the 90 day period provided for in clause (c), without
first complying with the terms of this §13.1 unless Landlord and Tenant failed
to execute the Transaction Documents as a result of Tenant’s bad faith in the
negotiation of the terms of such Transaction Documents, in which case Landlord
shall be permitted to sell the Leased Property to any other person or entity
regardless of the terms of such transaction.




(e)  Any sale
of the Leased Property by Landlord pursuant to this §13, other than to Tenant,
shall be subject to the rights of Tenant under this Lease, including, but not
limited to, its rights under this §13.




(f)  Any
closing pursuant to, and the consequences to Tenant of failing to close after
exercising its rights under §13.1 shall be in accordance with the terms set
forth in the Offer or Modified Offer and in the Transaction Documents executed
pursuant to the terms of this Article 13.




13.1.1                      Fair Market
Value.  The fair market value (the “Fair Market Value”) of the
Leased Property shall be determined as follows.




13.1.1.1                      The
parties shall attempt to determine the Fair Market Value by mutual agreement
within 15 days after giving the purchase notice (the “Negotiation
Period”).  However, if the parties do not agree on the Fair Market
Value during the Negotiation Period, the following provisions shall
apply.




43


13.1.1.2                      Landlord
and Tenant shall each give the other party notice of the name of an acceptable
appraiser five Business Days after the end of the Negotiation
Period.  The two appraisers will then select a third appraiser within
an additional five days.  Each appraiser must demonstrate to the
reasonable satisfaction of both Landlord and Tenant that it has significant
experience in appraising properties similar to the Leased
Property.  Within five days after designation, each appraiser shall
submit a resume to Landlord and Tenant setting forth such appraiser’s
qualifications, including education and experience with similar
properties.  A notice of objections to the qualifications of any
appraiser shall be given within 10 days after receipt of such
resume.  If a party fails to timely object to the qualifications of an
appraiser, then the appraiser shall be conclusively deemed
satisfactory.  If a party gives a timely notice of objection to the
qualifications of an appraiser, then the disqualified appraiser shall be
replaced by an appraiser selected by the qualified appraisers or, if all
appraisers are disqualified, then by an appraiser selected by a commercial
arbitrator acceptable to Landlord and Tenant.




13.1.1.3                      The
Fair Market Value shall be determined by the appraisers within 60 days
thereafter as follows.  Each of the appraisers shall be instructed to
prepare an appraisal of the Leased Property in accordance with the following
instructions:




The
Leased Property is to be valued upon the three conventional approaches to
estimate value known as the Income, Sales Comparison and Cost
Approaches.  Once the approaches are completed, the appraiser
correlates the individual approaches into a final value conclusion.




The three
approaches to estimate value are summarized as follows:




Income
Approach:  This valuation approach recognizes that the value of
the operating tangible and intangible assets can be represented by the expected
economic viability of the business giving returns on and of the
assets.




Sales Comparison
Approach:  This valuation approach is based upon the principle
of substitution.  When a facility is replaceable in the market, the
market approach assumes that value tends to be set at the price of acquiring an
equally desirable substitute facility.  Since healthcare market
conditions change and frequently are subject to regulatory and financing
environments, adjustments need to be considered.  These adjustments
also consider the operating differences such as services and
demographics.




Cost Approach:  This
valuation approach estimates the value of the tangible assets
only.  Value is represented by the market value of the land plus the
depreciated reproduction cost of all improvements and equipment.




In
general, the Income and Sales Comparison Approaches are considered the best
representation of value because they cover both tangible and intangible assets,
consider the operating




44


characteristics
of the business and have the most significant influence on attracting potential
investors.




The
appraised values submitted by the three appraisers shall be ranked from highest
value to middle value to lowest value, the appraised value (highest or lowest)
which is furthest from the middle appraised value shall be discarded, and the
remaining two appraised values shall be averaged to arrive at the Fair Market
Value.




13.1.1.4                      Tenant
shall pay, or reimburse Landlord for, all costs and expenses in connection with
the appraisals.




13.2           Option to
Purchase.  In consideration of rolling the Summerville
Facilities into this Lease, Landlord hereby grants to Tenant an option to
purchase (“Option to Purchase”) all of the Summerville Facilities (but not any
part thereof except as specifically permitted in this §13.2) in accordance with
the terms and conditions of this §13.2.  Tenant may exercise its
Option to Purchase only by giving an irrevocable notice of Tenant’s election to
purchase the Summerville Facilities (“Purchase Notice”) in accordance with the
following:




(a)  During
the Initial Term or any Renewal Term, Tenant must give a Purchase Notice no
earlier than the date which is 180 days, and no later than the date which
is 90 days, prior to the expiration date of the then current Term of this
Lease.




(b)  If any of
the Summerville Facilities’ Improvements are substantially destroyed during the
final 18 months of the Initial Term or any Renewal Term, Tenant (and each
Affiliate Tenant if required by Landlord) must give a Purchase Notice within
15 days after Landlord gives the Termination Notice pursuant to
§9.2.3.




(c)  If there
is a Taking of any of the Summerville Facilities during the final 18 months
of the Initial Term or any Renewal Term by exercise of the right of eminent
domain or by conveyance made in response to the threat of the exercise of such
right and this Lease is terminated as to the affected Summerville Facility as a
result thereof, Tenant must give a Purchase Notice within 30 days after
termination pursuant to §10.1.




Tenant
shall have no right to exercise the Option to Purchase other than in accordance
with the terms of this §13.2.




13.2.1                      Option
Price.  The option price (“Option Price”) will be an amount
equal to the sum of [a] the Summerville Investment Amount plus [b] 50%
of the amount by which the Summerville Fair Market Value at the time of the
option exercise exceeds the sum of the Summerville Investment Amount and the
Summerville Loan Amount.  In addition to the Option Price, Tenant
shall pay all reasonable closing costs and expenses in connection with the
transfer of the Leased Property to Tenant, including, but not limited to, the
following:  [a] real property conveyance or transfer fees or deed
stamps; [b] reasonable title search fees, title insurance commitment fees,
and title insurance premiums; [c] reasonable survey fees;
[d] reasonable environmental assessment fees; [e] recording fees;
[f] reasonable attorneys’ fees of Landlord’s counsel; and
[g] reasonable fees of any escrow agent.  Tenant shall also pay
all reasonable amounts, costs, expenses, charges, Rent and other items payable
by Tenant to Landlord, including, but not limited to, enforcement costs as set
forth in §8.7.




45


13.2.2                      Summerville Fair Market
Value.  The fair market value of the Summerville Facilities
(the “Summerville Fair Market Value”) shall be determined as
follows:




13.2.2.1                      The
parties shall attempt to determine the Summerville Fair Market Value by mutual
agreement within 15 days after the receipt of the Purchase
Notice.  However, if the parties do not agree on the Summerville Fair
Market Value within such 15-day period, the following provisions shall
apply.




13.2.2.2                      Landlord
and Tenant shall each give the other party notice of the name of an acceptable
appraiser 15 days after the receipt of the Purchase Notice.  The
two appraisers will then select a third appraiser within an additional five
days.  Each appraiser must demonstrate to the reasonable satisfaction
of both Landlord and Tenant that it has significant experience in appraising
properties similar to the Summerville Facilities.  Within five days
after designation, each appraiser shall submit a resume to Landlord and Tenant
setting forth such appraiser’s qualifications, including education and
experience with similar properties.  A notice of objections to the
qualifications of any appraiser shall be given within 10 days after receipt
of such resume.  If a party fails to timely object to the
qualifications of an appraiser, then the appraiser shall be conclusively deemed
satisfactory.  If a party gives a timely notice of objection to the
qualifications of an appraiser, then the disqualified appraiser shall be
replaced by an appraiser selected by the qualified appraisers or, if all
appraisers are disqualified, then by an appraiser selected by a commercial
arbitrator acceptable to Landlord and Tenant.




13.2.2.3                      The
Summerville Fair Market Value shall be determined by the appraisers within
60 days thereafter as follows.  Each of the appraisers shall be
instructed to prepare an appraisal of the Summerville Facilities in accordance
with the following instructions:




The
Summerville Facilities are to be valued upon the three conventional approaches
to estimate value known as the Income, Sales Comparison and Cost Approaches as
defined in §13.1.1.3.  Once the approaches are completed, the
appraiser correlates the individual approaches into a final value
conclusion.




The
appraised values submitted by the three appraisers shall be ranked from highest
value to middle value to lowest value, the appraised value (highest or lowest)
which is furthest from the middle appraised value shall be discarded, and the
remaining two appraised values shall be averaged to arrive at the Summerville
Fair Market Value.




13.2.2.4                      In
the event of any condemnation, similar taking or threat thereof with respect to
any part of the Summerville Facilities or any insured or partially insured
casualty loss to any part of the Summerville Facilities after Tenant has
exercised an Option to Purchase, but before settlement, the Summerville Fair
Market Value shall be redetermined as provided in this §13.2.2 to give effect to
such condemnation, taking or loss and shall take into account all available
condemnation awards and insurance proceeds.




13.2.2.5                      Tenant
shall pay, or reimburse Landlord for, all costs and expenses in connection with
the appraisals.




46


13.2.3                      Closing.  The
purchase of the Summerville Facilities by Tenant shall close on a date agreed to
by Landlord and Tenant which shall be not less than 60 days after
Landlord’s receipt of the Purchase Notice and not more than 60 days after
the Summerville Fair Market Value has been determined.  At the
closing, Tenant shall pay the Option Price and all amounts payable under §13.2.1
in immediately available funds and Landlord shall convey title to the
Summerville Facilities to Tenant by one or more transferable and recordable
limited warranty deeds and limited warranty bills of sale.




13.2.4                      Failure to Close
Option.  If Tenant for any reason fails to purchase the
Summerville Facilities after Tenant has given the Purchase Notice, then Tenant
shall pay Landlord all costs and expenses actually incurred by Landlord as a
result of the failure to close, including costs of unwinding swap transactions
or other interest rate protection devices and preparing for the
closing.  Tenant shall continue to be obligated as lessee hereunder
for the remainder of the Term.




13.2.5                      Failure to Exercise Option
to Purchase.  If Tenant for any reason does not exercise its
Option to Purchase in accordance with the terms and conditions of this Lease
before the expiration of the Term, Tenant shall be deemed to have forfeited all
of Tenant’s rights to exercise the Option to Purchase.




13.2.6                      Early Option to Purchase
Dayton Facility.  Notwithstanding any provision to the contrary
contained in this §13.2, Tenant may exercise the Option to Purchase the Dayton
Facility prior to the end of the Lease Term (“Early Option”) subject to the same
terms and conditions of this §13.2 except that [i] the required Purchase
Notice must be given by June 30, 2009; [ii] at the time that the
Purchase Notice is given or in no event later than June 30, 2009, Tenant
shall deliver to Landlord a signed letter of intent from an unaffiliated third
party to purchase the Dayton Facility from Tenant (“Third-Party Sale”);
[iii] the Early Option Price shall be $4,695,390.84; [iv] at the time
the Purchase Notice for the Early Option is given, no Event of Default has
occurred and is continuing; and [v] the purchase of the Dayton Property
shall close on a date agreed to by Landlord and Tenant which shall be not later
than 90 days after Landlord’s receipt of the Purchase Notice.




ARTICLE
14:  NEGATIVE COVENANTS




Until the Obligor Group Obligations
shall have been performed in full, Tenant and Subtenant covenant and agree that
Tenant and Subtenant (and Guarantor where applicable) shall not do any of the
following without the prior written consent of Landlord:




14.1           No
Debt.  Tenant and Subtenant shall not create, incur, assume, or
permit to exist any indebtedness with respect to the Leased Property other than
[i] trade debt incurred in the ordinary course of business;
[ii] indebtedness for Facility working capital purposes; and
[iii] indebtedness that is secured by any Permitted Lien.




14.2           No
Liens.  Tenant and Subtenant shall not create, incur, or permit
to exist any lien, charge, encumbrance, easement or restriction upon the Leased
Property or any lien upon or pledge of any interest in Subtenant, except for
Permitted Liens.




47


14.3           No
Guaranties.  Tenant and Subtenant shall not create, incur,
assume, or permit to exist any guarantee of any loan or other indebtedness with
respect to the operation of the Leased Property except for the endorsement of
negotiable instruments for collection in the ordinary course of
business.




14.4           No
Transfer.  Tenant and Subtenant shall not sell, lease,
sublease, mortgage, convey, assign or otherwise transfer any legal or equitable
interest in the Leased Property or any part thereof, except for transfers made
in connection with any Permitted Lien or leases to the residents of the Leased
Property or commercial leases with respect to a portion of the Leased Property
comprising in the aggregate less than 2,500 square feet provided such
commercial leases shall be for services that are an integral part of the
Facility.




14.5           No
Dissolution.  Tenant or Subtenant shall not dissolve,
liquidate, merge, consolidate or terminate its existence or sell, other than in
a sale/leaseback or sale/manage back transaction, assign, lease, or otherwise
transfer (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired)
unless, in the case of a merger or consolidation by Tenant, the surviving entity
in such merger or consolidation has a net worth immediately after the merger or
consolidation at least equal to that of the Tenant immediately prior thereto;
provided, however, nothing herein shall preclude a merger or consolidation of
Subtenant into Tenant or dissolution of Subtenant in the event of the
termination of the Sublease at such time as Tenant is licensed to operate the
Facilities subleased to Subtenant.




14.6           Subordination of Payments to
Affiliates.




(a)  Except as
otherwise provided in §14.6(b) below, after the occurrence of an Event of
Default and until such Event of Default is cured or waived in writing, Tenant
and Subtenant shall not make any payments or distributions (including, without
limitation, salary, bonuses, fees, principal, interest, dividends, liquidating
distributions, management fees, cash flow distributions or lease payments) to
any Affiliate or any shareholder, member or partner of Tenant, Subtenant or any
Affiliate.




(b)  Notwithstanding
the provisions of §14.6(a) or any other provision to the contrary contained in
this Lease, [1] whether or not there is outstanding an Event of Default,
the following shall be expressly permitted:  [A] salaries paid to
employees of the Facilities or employees of Tenant and Subtenant in the ordinary
course of business; [B] equity contributions and inter-company loans from
Tenant to its direct and indirect subsidiaries made in the ordinary course of
business; and [C] with respect to Subtenant, (i) distributions,
dividends and repayments of inter-company loans to Tenant made in the ordinary
course of business and (ii) payments to Tenant under the Sublease covering
the Summerville Facilities and provided that any such payments will be held in
trust by Tenant for the sole purpose of paying Rent to Landlord; and [2] so
long as there is no Event of Default under §8.1(a) of this Lease, Tenant may pay
cash dividends to any preferred shareholder of Tenant who is not an Affiliate of
Tenant.




14.7           Change of Location or
Name.  Tenant and Subtenant shall not, without providing
Landlord with 30 days prior notice thereof, change any of the
following:  [i] the location of the principal place of business
or chief executive office of Tenant or Subtenant, or




48


any
office where any of Tenant’s or Subtenant’s books and records are maintained;
[ii] the name under which Tenant or Subtenant conducts any of its business
or operations; or [iii] reorganize or otherwise change its respective
Organization State.




ARTICLE
15:  AFFIRMATIVE COVENANTS




15.1           Perform
Obligations.  Tenant and Subtenant shall each perform all of
its obligations under this Lease, the Government Authorizations, the Permitted
Exceptions, and all Legal Requirements.  If applicable, Tenant and
each Subtenant shall take all necessary action to obtain all Government
Authorizations required for the operation of the Facility as soon as possible
after the Amended Effective Date.




15.2           Proceedings to Enjoin or
Prevent Construction.  If any proceedings are filed seeking to
enjoin or otherwise prevent or declare invalid or unlawful Tenant’s
construction, occupancy, maintenance, or operation of the Facility or any
portion thereof, Tenant will cause such proceedings to be vigorously contested
in good faith, and in the event of an adverse ruling or decision, prosecute all
allowable appeals therefrom, and will, without limiting the generality of the
foregoing, resist the entry or seek the stay of any temporary or permanent
injunction that may be entered, and use its best commercially reasonable efforts
to bring about a favorable and speedy disposition of all such proceedings and
any other proceedings.




15.3           Documents and
Information.




15.3.1                      Furnish
Documents.  Tenant and each Subtenant shall periodically during
the term of the Lease deliver to Landlord the Annual Financial Statements,
Periodic Financial Statements, Annual Facility Budget, Annual Company Budget and
all other documents, reports, schedules and copies described on Exhibit E
within the specified time periods.  With each delivery of Annual
Financial Statements and Periodic Financial Statements (other than the monthly
Facility Financial Statement) to Landlord, Tenant and each Subtenant shall also
deliver to Landlord a certificate signed by the Chief Financial Officer, general
partner or managing member (as applicable) of Tenant and each Subtenant, an
Annual Facility Financial Report or Quarterly Facility Financial Report, as
applicable, and a Quarterly Facility Accounts Receivable Aging Report all in the
form of Exhibit F.  In addition, Tenant and each Subtenant shall
deliver to Landlord the applicable Annual Facility Financial Report and the
applicable Quarterly Facility Accounts Receivable Aging Report (based upon
internal financial statements) within 60 days after the end of each fiscal
year.  After the occurrence of an Event of Default and receipt of
Landlord’s written request, Tenant shall deliver to Landlord an updated Annual
Facility Budget and Annual Company Budget (based on a 12-month rolling forward
period) within 10 Business Days after receipt of Landlord’s
request.




15.3.2                      Furnish
Information.  Tenant and each Subtenant shall [i] promptly
supply Landlord with such information concerning its financial condition,
affairs and property, as Landlord may reasonably request from time to time
hereafter; [ii] promptly notify Landlord in writing of any condition or
event that constitutes a breach or event of default of any term, condition,
warranty, representation, or provisions of this Lease or any other agreement,
and of any material adverse change in its financial condition;
[iii] maintain a standard and modern system of accounting; [iv] permit
Landlord or any of its agent or representatives to have access




49


to and to
examine all of its books and records regarding the financial condition of the
Facility at any time or times hereafter during business hours and after
reasonable oral or written notice; and [v] permit Landlord to copy and make
abstracts from any and all of said books and records subject to any limitations
imposed by State or federal law with respect to the confidentiality of patient
and employee records.




15.3.3                      Further Assurances and
Information.  Tenant shall, on request of Landlord from time to
time, execute, deliver, and furnish documents as may be necessary to fully
consummate the transactions contemplated under this Lease.  Within
15 days after a request from Landlord, Tenant and each Subtenant shall
provide to Landlord such additional information regarding Tenant, Tenant’s
financial condition, Subtenant, each Subtenant’s financial condition or the
Facility as Landlord, or any existing or proposed creditor of Landlord, or any
auditor or underwriter of Landlord, may reasonably require from time to time,
including, without limitation, a current Tenant’s Certificate and Facility
Financial Report in the form of Exhibit F.  From and after and
during the continuance of an Event of Default, Landlord shall have the right to
require Tenant to provide to Landlord, at Tenant’s expense, an appraisal
prepared by an MAI appraiser setting forth the current fair market value of the
Leased Property.




15.3.4                      Material
Communications.  Tenant and each Subtenant shall transmit to
Landlord, within five days after receipt thereof, any material communication
affecting a Facility, this Lease, the Legal Requirements or the Government
Authorizations, and Tenant and each Subtenant will promptly respond to
Landlord’s inquiry with respect to such information.  Tenant and each
Subtenant shall notify Landlord in writing within five days after Tenant or any
Subtenant has knowledge of any potential, threatened or existing litigation or
proceeding against, or investigation of, Tenant, Subtenant, Guarantor or the
Facility that would reasonably be expected to adversely affect the right to
operate the Facility or Landlord’s title to the Facility or Tenant’s interest
therein.




15.3.5                      Requirements for Financial
Statements.  Tenant shall meet the following requirements in
connection with the preparation of the financial
statements:  [i] all audited financial statements shall be
prepared in accordance with general accepted accounting principles consistently
applied; [ii] all unaudited financial statements shall be prepared in a
manner substantially consistent with prior audited and unaudited financial
statements submitted to Landlord; [iii] all financial statements shall
fairly present the financial condition and performance for the relevant period
in all material respects; [iv] the audited financial statements shall
include all notes to the financial statements and a complete schedule of
contingent liabilities and transactions with Affiliates; and [v] the
audited financial statements shall contain an unqualified opinion; provided,
however, this subsection [v] shall not be deemed violated if the opinions
provided for fiscal year 2000 contain a going concern
qualification.




15.4           Compliance With
Laws.  Tenant and each Subtenant shall comply with all Legal
Requirements and keep all Government Authorizations in full force and
effect.  Subject to Tenant’s right to contest the same in accordance
with the terms of this Lease, Tenant and each Subtenant shall pay when due all
taxes and governmental charges of every kind and nature that are assessed or
imposed upon Tenant and each Subtenant, respectively, at any time during the
term of the Lease, including, without limitation, all income, franchise, capital
stock, property, sales and use, business, intangible, employee withholding, and
all taxes and charges relating to




50


Tenant’s
and each Subtenant’s respective business and operations at the Leased
Property.  Tenant and each Subtenant shall be solely responsible for
compliance with all Legal Requirements, including the ADA, and Landlord shall
have no responsibility for such compliance.




15.5           Broker’s
Commission.  Tenant shall indemnify Landlord from claims of
brokers arising by the execution hereof or the consummation of the transactions
contemplated hereby and from expenses incurred by Landlord in connection with
any such claims (including reasonable attorneys’ fees).




15.6           Existence and Change in
Ownership.  Except as otherwise specifically provided herein,
Tenant, Subtenant and Guarantor shall maintain its existence throughout the term
of this Lease and any change in the ownership of Tenant, Subtenant or Guarantor,
directly or indirectly, shall require Landlord’s prior written
consent.




15.7           Financial
Covenants.  The defined terms used in this section are defined
in §15.7.1.  The method of valuing assets shall be consistent with the
Financial Statements.  The following financial covenants shall be met
throughout the term of this Lease:




15.7.1                      Definitions.




(a)  “Portfolio
Cash Flow” means the aggregate net income arising from all Facilities under this
Lease as reflected on the Facility Financial Statement of each Facility plus
[i] the amount of the provision for depreciation and amortization; plus
[ii] the amount of the provision for management fees; plus [iii] the
amount of the provision for income taxes; plus [iv] the amount of the
provision for Base Rent payments and interest and equipment lease payments, if
any, relating to the Facilities; minus [v] an imputed management fee equal
to 5% of gross revenues of the Facilities (net of contractual allowances); and
minus [vi] an imputed replacement reserve of $250.00 per unit at the
Facilities, per year.




(b)  “Portfolio
Coverage Ratio” is the ratio of [i] Portfolio Cash Flow for each applicable
period; to [ii] the Base Rent payments under this Lease and all other debt
service and equipment lease payments relating to the Facilities for the
applicable period.




15.7.2                      Coverage
Ratio.  Tenant shall maintain for each Fiscal Quarter listed
below a Portfolio Coverage Ratio in the amount set forth below; provided,
however, that for purposes of calculating the Portfolio Coverage Ratio the
facility located in Dayton, Ohio shall at all times be excluded from the
calculation:




Fiscal Quarter
            Required
      Portfolio Coverage
    Ratio4th Quarter
      2008
            1.00:1.001st Quarter
      2009
            1.00:1.002nd Quarter
      2009
            1.00:1.003rd Quarter
      2009
            1.10:1.004th Quarter
      2009
            1.10:1.00


51





Fiscal Quarter
            Required
      Portfolio Coverage
    Ratio1st Quarter
      2010
            1.10:1.002nd Quarter
      2010
            1.10:1.003rd Quarter
      2010 and thereafter
            1.20:1.00





15.8           Facility Licensure and
Certification.




15.8.1                      Notice of
Inspection.  Tenant and Subtenant, as applicable, shall
[i] give written notice to Landlord within five days after an inspection of
the Facility with respect to health care licensure or certification has
occurred; and [ii] deliver to Landlord copies of each of the reports,
notices, correspondence and all other items and documents listed under item
no. 18 of Exhibit E within five days after receipt
thereof.  Tenant and Subtenant acknowledge that each has reviewed
Exhibit E and agrees to the foregoing obligation.




15.8.2                      Material
Deficiencies.  If Tenant or Subtenant receives a Facility
survey or inspection report with material deficiencies that threatens a loss of
licensure or, if applicable, certification of the Facility or the imposition of
a ban on admissions to the Facility (the “Material Deficiencies”) or notice of
failure to comply with a previously submitted plan of correction or an HIPDB
adverse action report related to any Material Deficiencies, Tenant and Subtenant
shall cure all of the Material Deficiencies and implement all corrective actions
with respect thereto by the date required by the regulatory authority and shall
deliver evidence of same to Landlord.




15.9           Transfer of License and
Facility Operations.  If this Lease is terminated due to
expiration of the Term, pursuant to an Event of Default or for any reason other
than Tenant’s purchase of the Leased Property, or if Tenant or Subtenant vacates
the Leased Property (or any part thereof) without termination of this Lease
(other than during periods of repair or reconstruction after damage, destruction
or a Taking, the following provisions shall be immediately
effective:




15.9.1                      Licensure.  Tenant
and each Subtenant shall execute, deliver and file all documents and statements
requested by Landlord to effect the transfer of the Facility license and
Government Authorizations to a replacement operator designated by Landlord
(“Replacement Operator”), subject to any required approval of governmental
regulatory authorities, and Tenant and each Subtenant shall provide to Landlord
all information and records required by Landlord in connection with the transfer
of the license and Government Authorizations.




15.9.2                      Facility
Operations.  In order to facilitate a responsible and efficient
transfer of the operations of the Facility, Tenant and Subtenant shall, if and
to the extent requested by Landlord, [i] deliver to Landlord the most
recent updated reports, notices, schedules and documents listed under item
nos. 17, 18, 19, 20 and 21 of Exhibit E; [ii] assuming Tenant or
Subtenant has not already vacated the Leased Property, continue and maintain the
operation of the Facility in the ordinary course of business, including using
its commercially reasonable efforts to retain the residents at the Facility to
the fullest extent practicable and consistent with applicable laws and
regulations, until transfer of the Facility operations to the
Replacement




52


Operator
is completed; [iii] enter into such management agreements, operations
transfer agreements and other types of agreements that may be reasonably
requested by Landlord or the Replacement Operator; provided, however, in no
event shall Tenant or Subtenant be required to permit the Replacement Operator
to operate the Leased Property under their licenses unless they receive
confirmation that doing so will not violate applicable Legal Requirements and
they get appropriate indemnities from the Replacement Operator in form and
substance reasonably acceptable to Tenant and Subtenant; and [iv] provide
reasonable access during normal business hours and on reasonable advance notice
for Landlord and its agents to show the Facility to potential replacement
operators.  Tenant and Subtenant consent to the distribution by
Landlord to potential replacement operators of Facility financial statements,
licensure reports, financial and property due diligence materials and other
documents, materials and information relating to the Facility.  The
provisions of this section do not create or establish any rights in Tenant,
Subtenant or any third party and Landlord reserves all rights and remedies
relating to termination of this Lease.




15.10                      Bed Operating
Rights.  Tenant and Subtenant acknowledge and agree that the
rights to operate the beds located at the Facility as set forth on
Exhibit C under the law of the Facility State, to relocate such bed
operating rights to another location or locations, and to transfer such bed
operating rights to third parties, are property of the Landlord and are an
integral part of the real and personal property that constitutes the Leased
Property.  Tenant and Subtenant have only the right to use of such
rights during the term of this Lease and subject to its terms and
conditions.  All operating rights shall automatically revert to
Landlord or Landlord’s designee upon the expiration or termination of this Lease
for any reason whatsoever (other than Tenant’s purchase of the Leased Property)
without any requirement of a transfer or the payment of additional
consideration.




15.11                      Power of
Attorney.  Effective upon [i] the occurrence and during
the continuance of an Event of Default, or [ii] termination of this Lease
for any reason other than Tenant’s purchase of the Leased Property, Tenant and
Subtenant hereby irrevocably and unconditionally appoint Landlord, or Landlord’s
authorized officer, agent, employee or designee, as Tenant’s and Subtenant’s
true and lawful attorney-in-fact, to act for Tenant and Subtenant in Tenant’s
and Subtenant’s respective name, place, and stead, to execute, deliver and file
all applications and any and all other necessary documents and statements to
effect the issuance, transfer, reinstatement, renewal and/or extension of the
Facility license and all Governmental Authorizations issued to Tenant and
Subtenant or applied for by Tenant and Subtenant in connection with Tenant’s and
Subtenant’s operation of the Facility, to permit any designee of Landlord or any
other transferee to operate the Facility under the Governmental Authorizations,
and to do any and all other acts incidental to any of the foregoing but only in
the event Tenant or Subtenant fail to take such actions or execute such
documents after a request from Landlord.  Tenant and Subtenant
irrevocably and unconditionally grant to Landlord as their respective
attorney-in-fact full power and authority to do and perform every act necessary
and proper to be done in the exercise of any of the foregoing powers as fully as
Tenant and Subtenant might or could do if personally present or acting, with
full power of substitution, hereby ratifying and confirming all that said
attorney shall lawfully do or cause to be done by virtue hereof.  This
power of attorney is coupled with an interest and is irrevocable prior to
Tenant’s purchase of the Leased Property.  Landlord shall provide
Tenant and Subtenant with copies of any documents filed and/or with a summary of
any actions taken pursuant to this power of attorney.




53


ARTICLE
16:  ALTERATIONS, CAPITAL IMPROVEMENTS, AND SIGNS




16.1           Prohibition on Alterations
and Improvements.  Except for Permitted Alterations (as
hereinafter defined), Tenant shall not make any structural or nonstructural
changes, alterations, additions and/or improvements (hereinafter collectively
referred to as “Alterations”) to the Leased Property.




16.2           Approval of
Alterations.  If Tenant desires to perform any Permitted
Alterations, Tenant shall deliver to Landlord plans, specifications, drawings,
and such other information as may be reasonably requested by Landlord
(collectively the “Plans and Specifications”) showing in reasonable detail the
scope and nature of the Alterations that Tenant desires to
perform.  It is the intent of the parties hereto that the level of
detail shall be comparable to that which is referred to in the architectural
profession as “design development drawings” as opposed to working or biddable
drawings.  Landlord agrees not to unreasonably delay its review of the
Plans and Specifications.  Within 30 days after receipt of an
invoice, Tenant shall reimburse Landlord for all costs and expenses incurred by
Landlord in reviewing and, if required, approving or disapproving the Plans and
Specifications, inspecting the Leased Property, and otherwise monitoring
compliance with the terms of this Article 16.  Tenant shall
comply with the requirements of §16.4 in making any Permitted
Alterations.




16.3           Permitted
Alterations.  Permitted Alterations means any one of the
following:  [i] Alterations approved by Landlord;
[ii] Alterations required under §7.2; [iii] Alterations affecting the
structure of the Leased Property and having a total cost of less than
$250,000.00 individually or in the aggregate; [iv] repairs, rebuilding and
restoration required or undertaken pursuant to §9.4; or [v] non-structural
Alterations such as painting, landscaping, wallpapering, installing new floor
coverings, etc. without regard to the cost thereof.




16.4           Requirements for Permitted
Alterations.  Tenant shall comply with all of the following
requirements in connection with any Permitted Alterations:




(a)  The
Permitted Alterations shall be made in accordance with the approved Plans and
Specifications.




(b)  The
Permitted Alterations and the installation thereof shall comply with all
applicable legal requirements and insurance requirements.




(c)  The
Permitted Alterations shall be done in a good and workmanlike manner, shall not
impair the value or the structural integrity of the Leased Property, and shall
be free and clear of all mechanic’s liens.




(d)  For any
Permitted Alterations having a total cost of $100,000.00 or more, Tenant shall
deliver to Landlord a payment and performance bond, with a surety acceptable to
Landlord, in an amount equal to the estimated cost of the Permitted Alterations,
guaranteeing the completion of the work free and clear of liens and in
accordance with the approved Plans and Specifications, and naming Landlord and
any mortgagee of Landlord as joint obligees on such bond.




54


(e)  Tenant
shall, at Tenant’s expense, obtain a builder’s completed value risk policy of
insurance insuring against all risks of physical loss, including collapse and
transit coverage, in a nonreporting form, covering the total value of the work
performed, and equipment, supplies, and materials, and insuring initial
occupancy.  Landlord and any mortgagee of Landlord shall be additional
insureds of such policy.  Landlord shall have the right to approve the
form and substance of such policy.




(f)  Tenant
shall pay the premiums required to increase the amount of the insurance
coverages required by Article 4 to reflect the increased value of the
Improvements resulting from installation of the Permitted Alterations, and shall
deliver to Landlord a certificate evidencing the increase in
coverage.




(g)  Tenant
shall, not later than 60 days after completion of the Permitted
Alterations, deliver to Landlord a revised “as-built” survey of the respective
Facility if the Permitted Alterations altered the Land or “footprint” of the
Improvements and an “as-built” set of Plans and Specifications for the Permitted
Alterations in form and substance satisfactory to Landlord.




(h)  Tenant
shall, not later than 30 days after Landlord sends an invoice, reimburse
Landlord for any reasonable costs and expenses, including attorneys’ fees and
architects’ and engineers’ fees, incurred in connection with reviewing and
approving the Permitted Alterations and ensuring Tenant’s compliance with the
requirements of this section.  The daily fee for Landlord’s consulting
engineer is $750.00.




16.5           Ownership and Removal of
Permitted Alterations.  The Permitted Alterations shall become
a part of the Leased Property, owned by Landlord, and leased to Tenant subject
to the terms and conditions of this Lease.  Tenant shall not be
required or permitted to remove any Permitted Alterations.




16.6           Minimum Qualified Capital
Expenditures.  During each calendar year of the Term, Tenant
shall expend at least $300.00 per unit for Qualified Capital Expenditures to
improve the Facilities (provided that as to any Facility with respect to which a
certificate of occupancy was not issued prior to the end of the first calendar
year, the minimum qualified capital expenditures required by this section shall
be waived until the calendar year immediately following the year in which such
certificate of occupancy is issued).  Thereafter throughout the Term,
Tenant shall expend such amount each calendar year, increased annually in
proportion to increases in the CPI.  Landlord and Tenant acknowledge
and agree that as of the Amended Effective Date the amount which Tenant is
required to expend for Qualified Capital Expenditures is $380.00 per
unit.  At least annually, at the request of Landlord, Landlord and
Tenant shall review capital expenditures budgets and agree on modifications, if
any, required by changed circumstances and the changed conditions of the Leased
Property.




16.7           Signs.  Tenant
may, at its own expense, erect and maintain identification signs at the Leased
Property, provided such signs comply with all laws, ordinances, and
regulations.  Upon the termination or expiration of this Lease (other
than as a result of the exercise by Tenant of its purchase option), Tenant
shall, within 30 days after notice from Landlord, remove the signs and
restore the Leased Property to its original condition.




55


ARTICLE
17:  CONTINGENT PAYMENT




17.1           Contingent
Payment.  Landlord has no current commitment to make a
Contingent Payment Advance.




ARTICLE
18:  ASSIGNMENT AND SALE OF LEASED PROPERTY




18.1           Prohibition on Assignment
and Subletting.  Tenant acknowledges that Landlord has entered
into this Lease in reliance on the personal services and business expertise of
Tenant.  Tenant may not assign, sublet, mortgage, hypothecate, pledge,
grant a right of first refusal or transfer any interest in this Lease, or in the
Leased Property, in whole or in part, without the prior written consent of
Landlord, which Landlord may withhold in its sole and absolute
discretion.  The following transactions will be deemed an assignment
or sublease requiring Landlord’s prior written consent:  [i] an
assignment by operation of law; [ii] an imposition (whether or not
consensual) of a lien, mortgage, or encumbrance upon Tenant’s interest in the
Lease; [iii] except as otherwise permitted by §§14.4 and 18.3, an
arrangement (including, but not limited to, management agreements, concessions,
licenses, and easements) which allows the use or occupancy of all or part of the
Leased Property by anyone other than Tenant; and [iv] a material change of
ownership of Tenant other than changes resulting from the trading of Tenant’s
stock on a national stock exchange.  Landlord’s consent to any
assignment, right of first refusal or sublease will not release Tenant (or any
guarantor) from its payment and performance obligations under this Lease, but
rather Tenant, any guarantor, and Tenant’s assignee or sublessee will be jointly
and severally liable for such payment and performance.  An assignment,
right of first refusal or sublease without the prior written consent of Landlord
will be void at Landlord’s option.  Landlord’s consent to one
assignment, right of first refusal or sublease will not waive the requirement of
its consent to any subsequent assignment or sublease.  Notwithstanding
the foregoing, Tenant may enter into a Sublease with each Subtenant for each
Facility provided that each Sublease complies with §18.2 and Tenant may enter
into any interim sublease and management agreement required to comply with
licensure requirements until such time as the license to operate the Facility is
issued in Tenant’s name.




18.2           Requests for Landlord’s
Consent to Assignment, Sublease or Management Agreement.  If
Tenant is required to obtain Landlord’s consent to a specific assignment,
sublease, or management agreement, Tenant shall give Landlord [i] the name
and address of the proposed assignee, subtenant or manager; [ii] a copy of
the proposed assignment, sublease or management agreement; [iii] reasonably
satisfactory information about the nature, business and business history of the
proposed assignee, subtenant, or manager and its proposed use of the Leased
Property; and [iv] banking, financial, and other credit information, and
references about the proposed assignee, subtenant or manager sufficient to
enable Landlord to determine the financial responsibility and character of the
proposed assignee, subtenant or manager.  Any assignment, sublease or
management agreement shall contain provisions to the effect that [a] such
assignment, sublease or management agreement is subject and subordinate to all
of the terms and provisions of this Lease and to the rights of Landlord and that
the assignee, subtenant or manager shall comply with all applicable provisions
of this Lease; [b] such assignment, sublease or management agreement may
not be modified without the prior written consent of Landlord not to be
unreasonably withheld or delayed; [c] if this Lease shall terminate before
the expiration of such assignment, sublease or management agreement, the
assignee, subtenant or




56


manager
thereunder will, solely at Landlord’s option and only upon the express written
notice of attornment from Landlord, attorn to Landlord and waive any right the
assignee, subtenant or manager may have to terminate the assignment, sublease or
management agreement or surrender possession thereunder as a result of the
termination of this Lease; and [d] if the assignee, subtenant or manager
receives a written notice from Landlord stating that Tenant is in default under
this Lease, the assignee, subtenant or manager shall thereafter pay all rentals
or payments under the assignment, sublease or management agreement directly to
Landlord until such default has been cured.  Any attempt or offer by
an assignee, subtenant or manager to attorn to Landlord shall not be binding or
effective without the express written consent of Landlord.  Tenant
hereby collaterally assigns to Landlord, as security for the performance of its
obligations hereunder, all of Tenant’s right, title, and interest in and to any
assignment, sublease or management agreement now or hereafter existing for all
or part of the Leased Property.  Tenant shall, at the request of
Landlord, execute such other instruments or documents as Landlord may request to
evidence this collateral assignment.  If Landlord, in its sole and
absolute discretion, consents to such assignment, sublease, or management
agreement, such consent shall not be effective until [i] a fully executed
copy of the instrument of assignment, sublease or management agreement has been
delivered to Landlord; [ii] in the case of an assignment, Landlord has
received a written instrument in which the assignee has assumed and agreed to
perform all of Tenant’s obligations under the Lease; and [iii] Tenant has
paid to Landlord a fee in the amount equal to the lesser of Landlord’s actual
out-of-pocket costs and expenses and $2,500.00 (applies only to consent requests
after the Closing); and [iv] Landlord has received reimbursement from
Tenant or the assignee for all attorneys’ fees and expenses and all other
reasonable out-of-pocket expenses incurred in connection with determining
whether to give its consent, giving its consent and all matters relating to the
assignment (applies only to consent requests after the Closing).




18.3           Agreements with
Residents.  Notwithstanding §18.1, Tenant and Subtenant may
enter into an occupancy agreement with residents of the Leased Property without
the prior written consent of Landlord provided that [i] the agreement does
not provide for lifecare services; [ii] the agreement does not contain any
type of rate lock provision or rate guaranty for more than one calendar year;
[iii] the agreement does not provide for any rent reduction or waiver other
than for an introductory period not to exceed six months; [iv] Tenant and
Subtenant may not collect rent for more than one month in advance, other than
one month of rent collected to be held as security for the performance of the
resident’s obligation to Tenant and Subtenant; and [v] all residents of the
Leased Property are accurately shown in accounting records for the
Facility.  Without the prior written consent of Landlord, Tenant and
Subtenant shall not materially change the form of resident occupancy agreement
that was submitted to Landlord prior to the Amended Effective Date.




18.4           Sale of Leased
Property.  If Landlord or any subsequent owner of the Leased
Property sells the Leased Property, its liability for the performance of its
agreements in this Lease will end on the date of the sale of the Leased
Property, and Tenant will look solely to the purchaser for the performance of
those agreements.  For purposes of this section, any holder of a
mortgage or security agreement which affects the Leased Property at any time,
and any landlord under any lease to which this Lease is subordinate at any time,
will be a subsequent owner of the Leased Property when it succeeds to the
interest of Landlord or any subsequent owner of the Leased
Property.




57


18.5           Assignment by
Landlord.  Landlord may transfer, assign, mortgage,
collaterally assign, or otherwise dispose of Landlord’s interest in this Lease
or the Leased Property.




ARTICLE
19:  HOLDOVER AND SURRENDER




19.1           Holding
Over.  If Tenant, with or without the express or implied
consent of Landlord, continues to hold and occupy the Leased Property (or any
part thereof) after the expiration of the Term or earlier termination of this
Lease (other than pursuant to Tenant’s purchase of the Leased Property), such
holding over beyond the Term and the acceptance or collection of Rent in the
amount specified below by Landlord shall operate and be construed as creating a
tenancy from month to month and not for any other term
whatsoever.  Said month-to-month tenancy may be terminated by Landlord
by giving Tenant five days written notice, and at any time thereafter Landlord
may re-enter and take possession of the Leased Property.  If, without
Landlord’s consent or at Landlord’s request, Tenant continues after the
expiration of the Term or earlier termination of this Lease to hold and occupy
the Leased Property whether as a month-to-month tenant or a tenant at sufferance
or otherwise, Tenant shall pay Rent for each month in an amount equal to the sum
of [i] one and one-half (1-1/2) times the Base Rent payable during the
month in which such expiration or termination occurs, plus [ii] all General
Additional Rent accruing during the month, plus [iii] any and all other
sums payable by Tenant pursuant to this Lease.  During any continued
tenancy after the expiration of the Term or earlier termination of this Lease,
Tenant shall be obligated to perform and observe all of the terms, covenants and
conditions of this Lease, but shall have no rights hereunder other than the
right, to the extent given by applicable law, to continue its occupancy and use
of the Leased Property until the tenancy is terminated.  Nothing
contained herein shall constitute the consent, express or implied, of Landlord
to the holding over of Tenant after the expiration or earlier termination of
this Lease.




19.2           Surrender.  Except
for [i] Permitted Alterations; [ii] normal and reasonable wear and
tear (subject to the obligation of Tenant to maintain the Leased Property in
good order and repair during the Term); and [iii] damage and destruction
not required to be repaired by Tenant, Tenant shall surrender and deliver up
each Facility which is then subject to this Lease at the expiration or
termination of the Term in as good order and condition as of the date that
Facility was added to the Lease.  The provisions of this §19.2 shall
not apply in the event of the termination of the Lease upon the exercise by
Tenant of the rights set forth in Article 13.




19.3           Indemnity.  If
Tenant fails to surrender the entire Leased Property or any part thereof upon
the expiration or termination of this Lease in a timely manner and in accordance
with the provisions of this Lease, in addition to any other liabilities to
Landlord accruing therefrom, Tenant shall defend, indemnify and hold Landlord,
its principals, officers, directors, agents, and employees harmless from loss or
liability resulting from such failure, including, without limiting the
generality of the foregoing, loss of rental with respect to any new lease in
which the rental payable thereunder exceeds the Rent collected by Landlord
pursuant to this Lease during Tenant’s hold-over and any claims by any proposed
new tenant founded on Tenant’s failure to surrender the Leased
Property.  The provisions of this Article 19 shall survive the
expiration or termination of this Lease.  The provisions of this §19.3
shall not apply




58


in the
event of the termination of this Lease upon the exercise by Tenant of the rights
set forth in Article 13.




ARTICLE
20:  [RESERVED]




ARTICLE
21:  QUIET ENJOYMENT, SUBORDINATION, ATTORNMENT AND ESTOPPEL
CERTIFICATES




21.1           Quiet
Enjoyment.  So long as Tenant performs all of its obligations
under this Lease, Tenant’s possession of the Leased Property will not be
disturbed by Landlord or any party claiming by, through or under
Landlord.




21.2           Subordination.  Subject
to the terms and conditions of this section, this Lease and Tenant’s rights
under this Lease are subordinate to any ground lease or underlying lease, first
mortgage, first deed of trust, or other first lien against the Leased Property,
together with any renewal, consolidation, extension, modification or replacement
thereof, which now or at any subsequent time affects the Leased Property or any
interest of Landlord in the Leased Property, except to the extent that any such
instrument expressly provides that this Lease is superior.  The
foregoing subordination provision is expressly conditioned upon any lessor or
mortgagee being obligated and bound to recognize Tenant as the tenant under this
Lease, and such lessor or mortgagee shall have no right to disturb Tenant’s
possession, use and occupancy of the Leased Property or Tenant’s enjoyment of
its rights under this Lease unless and until an Event of Default occurs
hereunder.  Any foreclosure action or proceeding by any mortgagee with
respect to the Leased Property shall not affect Tenant’s rights under this Lease
and shall not terminate this Lease unless and until an Event of Default occurs
hereunder.  The foregoing provisions will be self-operative, and no
further instrument will be required in order to effect them.  However,
Tenant shall execute, acknowledge and deliver to Landlord, at any time and from
time to time upon demand by Landlord, such documents as may be requested by
Landlord or any mortgagee or any holder of any mortgage or other instrument
described in this section, to confirm or effect any such subordination, provided
that any such document shall include a nondisturbance provision as set forth in
this section satisfactory to Tenant.  Any mortgagee of the Leased
Property shall be deemed to be bound by the nondisturbance provision set forth
in this section.  If Tenant fails or refuses to execute, acknowledge,
and deliver any such document within 20 days after written demand, Landlord
may execute acknowledge and deliver any such document on behalf of Tenant as
Tenant’s attorney-in-fact.  Tenant hereby constitutes and irrevocably
appoints Landlord, its successors and assigns, as Tenant’s attorney-in-fact to
execute, acknowledge, and deliver on behalf of Tenant any documents described in
this section.  This power of attorney is coupled with an interest and
is irrevocable.




21.3           Attornment.  If
any holder of any mortgage, indenture, deed of trust, or other similar
instrument described in §21.2 succeeds to Landlord’s interest in the Leased
Property, Tenant will pay to such holder all Rent subsequently payable under
this Lease.  Tenant shall, upon request of anyone succeeding to the
interest of Landlord, automatically become the tenant of, and attorn to, such
successor in interest without changing this Lease.  The successor in
interest will not be bound by [i] any payment of Rent for more than one
month in advance unless actually received by such successor; [ii] any
amendment or modification of this Lease thereafter made without its consent as
provided in this Lease; [iii] any claim against Landlord arising
prior




59


to the
date on which the successor succeeded to Landlord’s interest; or [iv] any
claim or offset of Rent against Landlord.  Upon request by Landlord or
such successor in interest and without cost to Landlord or such successor in
interest, Tenant will execute, acknowledge and deliver an instrument or
instruments confirming the attornment.  If Tenant fails or refuses to
execute, acknowledge, and deliver any such instrument within 20 days after
written demand, then Landlord or such successor in interest will be entitled to
execute, acknowledge, and deliver any document on behalf of Tenant as Tenant’s
attorney-in-fact.  Tenant hereby constitutes and irrevocably appoints
Landlord, its successors and assigns, as Tenant’s attorney-in-fact to execute,
acknowledge, and deliver on behalf of Tenant any such document.  This
power of attorney is coupled with an interest and is irrevocable.




21.4           Estoppel
Certificates.  At the request of Landlord or any mortgagee or
purchaser of the Leased Property, Tenant shall execute, acknowledge, and deliver
an estoppel certificate, in recordable form, in favor of Landlord or any
mortgagee or purchaser of the Leased Property certifying the
following:  [i] that the Lease is unmodified and in full force
and effect, or if there have been modifications that the same is in full force
and effect as modified and stating the modifications; [ii] the date to
which Rent and other charges have been paid; [iii] whether Tenant or
Landlord is in default or whether there is any fact or condition known to
Landlord or Tenant which, with notice or lapse of time, or both, would
constitute a default, and specifying any existing default, if any;
[iv] that Tenant has accepted and occupies the Leased Property;
[v] that Tenant has no defenses, set-offs, deductions, credits, or
counterclaims against Landlord, if that be the case, or specifying such that
exist; and [vi] such other information as may reasonably be requested by
Landlord or any mortgagee or purchaser.  Any purchaser or mortgagee
may rely on this estoppel certificate.  If Tenant fails to deliver the
estoppel certificates to Landlord within 10 days after the request of
Landlord, then Tenant shall be deemed to have certified that [a] the Lease
is in full force and effect and has not been modified, or that the Lease has
been modified as set forth in the certificate delivered to Tenant;
[b] Tenant has not prepaid any Rent or other charges except for the current
month; [c] Tenant has accepted and occupies the Leased Property;
[d] neither Tenant nor Landlord is in default nor is there any fact or
condition which, with notice or lapse of time, or both, would constitute a
default; and [e] Tenant has no defenses, set-offs, deductions, credits, or
counterclaims against Landlord.  Tenant hereby irrevocably appoints
Landlord as Tenant’s attorney-in-fact to execute, acknowledge, and deliver on
Tenant’s behalf any estoppel certificate to which Tenant does not object within
10 days after Landlord sends the certificate to Tenant.  This
power of attorney is coupled with an interest and is irrevocable.




ARTICLE
22:  REPRESENTATIONS AND WARRANTIES




Tenant and Subtenant hereby make the
following representations and warranties, as of the Amended Effective Date, to
Landlord and acknowledge that Landlord is granting the Lease in reliance upon
such representations and warranties.  Tenant’s and Subtenant’s
representations and warranties shall survive the Closing and, except to the
extent made as of a specific date, shall continue in full force and effect until
the Obligor Group Obligations have been performed in full.




22.1           Organization and Good
Standing.  Tenant is a corporation, duly organized, validly
existing and in good standing under the laws of its Organization State.
Subtenant is a




60


limited
liability company, duly organized, validly existing and in good standing under
the laws of its Organization State.  Tenant is qualified to do
business in and is in good standing under the laws of the Facility
States.  Subtenant is qualified to do business and is in good standing
under the laws of its Facility State.




22.2           Power and
Authority.  Tenant and Subtenant have the power and authority
to execute, deliver and perform this Lease.  Tenant and Subtenant have
taken all requisite action necessary to authorize the execution, delivery and
performance of their respective obligations under this Lease.




22.3           Enforceability.  This
Lease constitutes a legal, valid, and binding obligation of Tenant and
Subtenant, as applicable, enforceable in accordance with its terms except as
such enforceability may be limited by creditors rights laws and general
principles of equity.




22.4           Government
Authorizations.  The Facility is in compliance with all Legal
Requirements.  All Government Authorizations are in full force and
effect.  Except as otherwise noted in Exhibit G, Tenant or the
respective Subtenant holds all Government Authorizations necessary for the
operation of the Facility in accordance with the Facility Uses.  No
prior notice to or approval from any licensure authority is required in
connection with the execution of this Lease by Landlord or Tenant other than
those notices which have been given or approvals which have been obtained prior
to the Amended Commencement Date.




22.5           Reserved.




22.6           Condition of
Facility.  To the best of Tenant’s and Subtenant’s knowledge
and except as otherwise disclosed in writing by Tenant to Landlord prior to the
Amended Effective Date, all of the mechanical and electrical systems, heating
and air-conditioning systems, plumbing, water and sewer systems, and all other
items of mechanical equipment or appliances are in good working order, condition
and repair, are of sufficient size and capacity to service the Facility for the
Facility Uses and conform with all applicable ordinances and regulations, and
with all building, zoning, fire, safety, and other codes, laws and
orders.  The Improvements, including the roof and foundation, are
structurally sound and free from leaks and other defects.




22.7           Compliance with
Laws.  To the best of Tenant’s and Subtenant’s knowledge, there
is no violation of, or noncompliance with, [i] any laws, orders, rules or
regulations, ordinances or codes of any kind or nature whatsoever relating to
the Facility or the ownership or operation thereof (including, without
limitation, building, fire, health, occupational safety and health, zoning and
land use, planning and environmental laws, orders, rules and regulations);
[ii] any covenants, conditions, restrictions or agreements affecting or
relating to the ownership, use or occupancy of the Facility; or [iii] any
order, writ, regulation or decree relating to any matter referred to in [i] or
[ii] above.




22.8           No
Litigation.  As of the Amended Effective Date and except as
disclosed on Exhibit H, [i] there are no actions or suits, or any
proceedings or investigations by any governmental agency or regulatory body
pending against Tenant or Subtenant with respect to its




61


operation
at the Facility or against the Facility; [ii] no HIPDB adverse action
reports have been issued to Tenant or Subtenant with respect to its operations
at the Facility or against the Facility; [iii] neither Tenant nor Subtenant
has received notice of any threatened actions, suits, proceedings or
investigations against Tenant or Subtenant with respect to its operations at the
Facility or against the Facility at law or in equity, or before any governmental
board, agency or authority which, if determined adversely to Tenant or
Subtenant, would materially and adversely affect the Facility or title to the
Facility (or any part thereof), the right to operate the Facility as presently
operated, or the financial condition of Tenant or Subtenant; [iv] there are
no unsatisfied or outstanding judgments against Tenant or Subtenant with respect
to its operations at the Facility or against the Facility; [v] there is no
labor dispute materially and adversely affecting the operation or business
conducted by Tenant or Subtenant at the Facility; and [vi] Tenant does not
have knowledge of any facts or circumstances which might reasonably form the
basis for any such action, suit, or proceeding.




22.9           Consents.  The
execution, delivery and performance of this Lease will not require any consent,
approval, authorization, order, or declaration of, or any filing or registration
with, any court, any federal, state, or local governmental or regulatory
authority, or any other person or entity, the absence of which would materially
impair the ability of Tenant or Subtenant to operate the Facility for the
Facility Uses except for the post-acquisition filing for licensure of the
Facility.




22.10                      No
Violation.  The execution, delivery and performance of this
Lease [i] do not and will not conflict with, and do not and will not result
in a breach of Tenant’s or Subtenant’s Organizational Documents; [ii] do
not and will not conflict with, and do not and will not result in a breach of,
and do not and will not constitute a default under (or an event which, with or
without notice or lapse of time, or both, would constitute a default under), any
of the terms, conditions or provisions of any agreement or other instrument or
obligation to which Tenant or Subtenant is a party or by which its assets are
bound; and [iii] do not and will not violate any order, writ, injunction,
decree, statute, rule or regulation applicable to Tenant, Subtenant or the
Facility.




22.11                      Reports and
Statements.  All reports, statements, certificates and other
data furnished by or on behalf of Tenant or Guarantor to Landlord in connection
with this Lease, and all representations and warranties made herein or in any
certificate or other instrument delivered in connection herewith and therewith,
are true and correct in all material respects and do not omit to state any
material fact or circumstance necessary to make the statements contained herein
or therein, in light of the circumstances under which they are made, not
misleading as of the date of such report, statement, certificate or other
data.  The copies of all agreements and instruments submitted to
Landlord, including, without limitation, all agreements relating to management
of the Facility and Tenant’s working capital are true, correct and complete
copies in all material respects and include all material amendments and
modifications of such agreements.




22.12                      ERISA.  All
plans (as defined in §4021(a) of the Employee Retirement Income Security Act of
1974, as amended or supplemented from time to time (“ERISA”)) for which Tenant
or Subtenant is an “employer” or a “substantial employer” (as defined in §§3(5)
and 4001(a)(2) of ERISA, respectively) are in compliance with ERISA and the
regulations and published interpretations thereunder.  To the extent
Tenant or Subtenant maintains a qualified




62


defined
benefit pension plan:  [i] there exists no accumulated funding
deficiency; [ii] no reportable event and no prohibited transaction has
occurred; [iii] no lien has been filed or threatened to be filed by the
Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title
IV of ERISA; and [iv] Tenant and Subtenant have not been deemed to be a
substantial employer.




22.13                      Chief Executive
Office.  Tenant and Subtenant each maintain its respective
chief executive office and its books and records at Tenant’s address set forth
in the introductory paragraph of this Lease.  Tenant and Subtenant do
not conduct any business or operations other than at Tenant’s chief executive
office and at the Facility.




22.14                      Other Name or
Entities.  Except as disclosed herein, none of Tenant’s or
Subtenant’s business at the Leased Property is conducted through any subsidiary,
unincorporated association or other entity and neither Tenant nor Subtenant have
in connection with its operations at the Leased Property, within the six years
preceding the date of this Lease [i] changed its name, [ii] used any
name other than the name stated at the beginning of this agreement, or
[iii] merged or consolidated with, or acquired any of the assets of, any
corporation or other business.




22.15                      Parties in
Possession.  Except as disclosed on Exhibit B and except
for each Subtenant, there are no parties in possession of any Leased Property or
any portion thereof as managers, lessees, tenants at sufferance, or
trespassers.




22.16                      Access.  Except
as otherwise disclosed in writing by Tenant to Landlord prior to the Amended
Effective Date, access to the Land is directly from a dedicated public
right-of-way without any easement.  To the knowledge of Tenant and
Subtenant, there is no fact or condition which would result in the termination
or reduction of the current access to and from the Land to such
right-of-way.




22.17                      Utilities.  There
are available at the Land gas, municipal water, and sanitary sewer lines, storm
sewers, electrical and telephone services in operating condition which are
adequate for the operation of the Facility at a reasonable
cost.  Except as otherwise disclosed in writing by Tenant to Landlord
prior to the Amended Effective Date, the Land has direct access to utility lines
located in a dedicated public right-of-way without any easement.  As
of the Amended Effective Date, there is no pending or, to the knowledge of
Tenant or Subtenant, threatened governmental or third party proceeding which
would impair or result in the termination of such utility
availability.




22.18                      Condemnation and
Assessments.  As of the Amended Effective Date, neither Tenant
nor Subtenant has received notice of, and there are no pending or, to the best
of Tenant’s and Subtenant’s knowledge, threatened, condemnation, assessment
(other than as disclosed in writing by Tenant to Landlord prior to the Amended
Effective Date) or similar proceedings affecting or relating to the Facility, or
any portion thereof, or any utilities, sewers, roadways or other public
improvements serving the Facility.




22.19                      Zoning.  As
of the Amended Effective Date, [i] the use and operation of the Facility
for the Facility Uses is a permitted use under the applicable zoning code;
[ii] except




63


as
disclosed on Exhibit G hereto, no special use permits, conditional use
permits, variances, or exceptions have been granted or are needed for such use
of the Facility; [iii] the Land is not located in any special districts
such as historical districts or overlay districts; and [iv] the Facility
has been constructed in accordance with and complies with all zoning laws in
effect at the time of its construction, including, but not limited to,
dimensional, parking, setback, screening, landscaping, sign and curb cut
requirements or the Facility obtained required waivers or variances from such
requirements.




22.20                      Pro Forma
Statement.  Reserved.




22.21                      Environmental
Matters.  During the period of Tenant’s or Subtenant’s
ownership or possession of the Leased Property and, to the best of Tenant’s and
Subtenant’s knowledge after diligent inquiry, for the period prior to Tenant’s
and Subtenant’s ownership or possession of the Leased Property, [i] the
Leased Property is in compliance with all Environmental Laws; [ii] there
were no releases or threatened releases of Hazardous Materials on, from, or
under the Leased Property, except in compliance with all Environmental Laws;
[iii] no Hazardous Materials have been, are or will be used, generated,
stored, or disposed of at the Leased Property, except in compliance with all
Environmental Laws; [iv] asbestos has not been and will not be used in the
construction of any Improvements; [v] no permit is or has been required
from the Environmental Protection Agency or any similar agency or department of
any state or local government for the use or maintenance of any Improvements;
[vi] underground storage tanks on or under the Land, if any, have been and
currently are being operated in compliance with all applicable Environmental
Laws; [vii] any closure, abandonment in place or removal of an underground
storage tank on or from the Land was performed in compliance with applicable
Environmental Laws and any such tank had no release contaminating the Leased
Property or, if there had been a release, the release was remediated in
compliance with applicable Environmental Laws to the satisfaction of regulatory
authorities; [viii] no summons, citation or inquiry has been made by any
such environmental unit, body or agency or a third party demanding any right of
recovery for payment or reimbursement for costs incurred under CERCLA or any
other Environmental Laws and the Land is not subject to the lien of any such
agency; and [ix] to the best of Tenant’s and Subtenant’s knowledge, the
environmental assessment of the Facility (and all follow-up reports, supplements
and amendments) that was delivered to Landlord by Tenant in connection with the
closing of this Lease is true, complete and accurate.  “Disposal” and
“release” shall have the meanings set forth in CERCLA.




22.22                      Leases and
Contracts.  As of the Amended Effective Date and except as
disclosed on Exhibit I, there are no leases or contracts (including, but
not limited to, insurance contracts, maintenance contracts, construction
contracts, employee benefit plans, employment contracts, equipment leases,
security agreements, architect agreements, and management contracts) to which
Tenant, Subtenant or Guarantor is a party relating to any part of the ownership,
operation, possession, construction, management or administration of the Land or
the Facility which individually or in the aggregate with respect to any Facility
require payments in excess of $20,000 per year.




22.23                      No
Default.  As of the Amended Effective Date, [i] there is
no existing Event of Default under this Lease; and [ii] no event has
occurred which, with the giving of notice or the passage of time, or both, would
constitute or result in such an Event of Default.




64


22.24                      Tax
Status.  If Tenant or Subtenant is a partnership or limited
liability company, it is taxable as a partnership under the Internal Revenue
Code and all applicable facility state tax laws.




ARTICLE
23:  RESERVED




ARTICLE
24:  SECURITY INTEREST




24.1           Collateral.  Tenant,
Subtenant and Guarantor hereby grant to each Landlord and HCRI (if not a
Landlord) (individually and collectively called “Secured Party”) a security
interest in the following described property located at a Leased Property,
whether now owned or hereafter acquired by Tenant, Subtenant and Guarantor (the
“Collateral”), to secure the payment and performance of the Obligor Group
Obligations:




(a)  All
machinery, furniture, equipment, trade fixtures, appliances, inventory and all
other goods (as “equipment”, “inventory” and “goods” are defined for purposes of
Article 9 (“Article 9”) of the Uniform Commercial Code as adopted in
Ohio) and any leasehold interest of Tenant or any Subtenant in any of the
foregoing, including, without limitation, those items which are to become
fixtures or which are building supplies and materials to be incorporated into
any improvement or fixture.




(b)  All
accounts, contract rights, general intangibles, instruments, documents, and
chattel paper [as “accounts”, “contract rights”, “general intangibles”,
“instruments”, “documents”, and “chattel paper”, are defined for purposes of
Article 9] now or hereafter arising.




(c)  All
franchises, permits, licenses, operating rights, certifications, approvals,
consents, authorizations and other general intangibles, including, without
limitation, certificates of need, state health care facility licenses, and
Medicare and Medicaid provider agreements, to the extent permitted by
law.




(d)  Unless
expressly prohibited by the terms thereof, all contracts, agreements, contract
rights and materials relating to the design, construction, operation or
management of any improvements, including, but not limited to, plans,
specifications, drawings, blueprints, models, mock-ups, brochures, flyers,
advertising and promotional materials and mailing lists.




(e)  All
subleases, occupancy agreements, license agreements and concession agreements,
written or unwritten, of any nature, now or hereafter entered into, and all
right, title and interest of Tenant thereunder, including, without limitation,
those certain Subleases dated as of the Effective Date, by and between Tenant,
as Sublandlord, and each Subtenant, as Subtenant; and including, without
limitation, Tenant’s right, if any, to cash or securities deposited thereunder
whether or not the same was deposited to secure performance by the subtenants,
occupants, licensees and concessionaires of their obligations thereunder,
including the right to receive and collect the rents, revenues, and other
charges thereunder.




(f)  All
ledger sheets, files, records, computer programs, tapes, other electronic data
processing materials, and other documentation.




65


(g)  The
products and proceeds of the preceding listed property, including, without
limitation, cash and non-cash proceeds, proceeds of proceeds, and insurance
proceeds.




24.2           Additional
Documents.  At the request of Landlord, Tenant and each
Subtenant shall execute additional security agreements, financing statements,
and such other documents as may be requested by Landlord to maintain and perfect
such security interest.  Tenant and each Subtenant hereby irrevocably
appoint Landlord, its successors and assigns, as Tenant’s or Subtenant’s
attorney-in-fact to execute, acknowledge, deliver and file such documents on
behalf of Tenant or such Subtenant.  This power of attorney is coupled
with an interest and is irrevocable.




24.3           Notice of
Sale.  With respect to any sale or other disposition of any of
the Collateral after the occurrence of an Event of Default, Landlord, Tenant and
each Subtenant agree that the giving of five days’ notice by Landlord, sent by
overnight delivery, postage prepaid, to Tenant’s or Subtenant’s notice address
designating the time and place of any public sale or the time after which any
private sale or other intended disposition of such Collateral is to be made,
shall be deemed to be reasonable notice thereof and Tenant and each Subtenant
waive any other notice with respect thereto.




24.4           Recharacterization.  Landlord
and Tenant intend this Lease to be a true lease.  However, if despite
the parties’ intent, it is determined or adjudged by a court for any reason that
this Lease is not a true lease or if this Lease is recharacterized as a
financing arrangement, then this Lease shall be considered a secured financing
agreement and Landlord’s title to the Leased Property shall constitute a
perfected first priority lien in Landlord’s favor on the Leased Property to
secure the payment and performance of all the Obligor Group
Obligations.




ARTICLE
25:  MISCELLANEOUS




25.1           Notices.  Landlord,
Tenant and Subtenant hereby agree that all notices, demands, requests, and
consents (hereinafter “notices”) required to be given pursuant to the terms of
this Lease shall be in writing, shall be addressed to the addresses set forth in
the introductory paragraph of this Lease, and shall be served by
[i] personal delivery; [ii] certified mail, return receipt requested,
postage prepaid; or [iii] nationally recognized overnight
courier.  Notices to any Subtenant should be sent c/o Tenant at
Tenant’s address set forth in the introductory paragraph.  All notices
shall be deemed to be given upon the earlier of actual receipt or three Business
Days after mailing, or one Business Day after deposit with the overnight
courier.  Any notices meeting the requirements of this section shall
be effective, regardless of whether or not actually
received.  Landlord or Tenant may change its notice address at any
time by giving the other party notice of such change.




25.2           Advertisement of Leased
Property.  In the event the Tenant fails to exercise its option
to renew within the time period set forth in §12.1, then Landlord or its agent
shall have the right to enter the Leased Property at all reasonable times for
the purpose of exhibiting the Leased Property to others and to place upon the
Leased Property for and during the period commencing 120 days prior to the
expiration of this Lease, “for sale” or “for rent” notices or
signs.




66


25.3           Entire
Agreement.  This Lease contains the entire agreement between
Landlord and Tenant with respect to the subject matter hereof.  No
representations, warranties, and agreements have been made by Landlord except as
set forth in this Lease.  No oral agreements or understandings between
Landlord and Tenant shall survive execution of this Lease.




25.4           Severability.  If
any term or provision of this Lease is held or deemed by Landlord to be invalid
or unenforceable, such holding shall not affect the remainder of this Lease and
the same shall remain in full force and effect, unless such holding
substantially deprives Tenant of the use of the Leased Property or Landlord of
the rents herein reserved, in which event this Lease shall forthwith terminate
as if by expiration of the Term.




25.5           Captions and
Headings.  The captions and headings are inserted only as a
matter of convenience and for reference and in no way define, limit or describe
the scope of this Lease or the intent of any provision hereof.




25.6           Governing
Law.  This Lease shall be governed by and construed in
accordance with the laws of the State of Ohio, except as to matters under which
the laws of a State in which a respective Facility is located, or under
applicable procedural conflicts of laws rules, require the application of laws
of such other State, in which case the laws or conflicts of laws rules, as the
case may be, of such State shall govern to the extent required.




25.7           Memorandum of
Lease.  Tenant shall not record this Lease.  Tenant
shall, however, record a memorandum of lease approved by Landlord upon
Landlord’s request.




25.8           Waiver.  No
waiver by Landlord of any condition or covenant herein contained, or of any
breach of any such condition or covenant, shall be held or taken to be a waiver
of any subsequent breach of such covenant or condition, or to permit or excuse
its continuance or any future breach thereof or of any condition or covenant,
nor shall the acceptance of Rent by Landlord at any time when Tenant or
Subtenant is in default in the performance or observance of any condition or
covenant herein be construed as a waiver of such default, or of Landlord’s right
to terminate this Lease or exercise any other remedy granted herein on account
of such existing default.




25.9           Binding
Effect.  This Lease will be binding upon and inure to the
benefit of the heirs, successors, personal representatives, and permitted
assigns of Landlord, Tenant and Subtenant.




25.10                      No
Offer.  Landlord’s submission of this Lease to Tenant is not an
offer to lease the Leased Property, or an agreement by Landlord to reserve the
Leased Property for Tenant.  Landlord will not be bound to Tenant
until Tenant has duly executed and delivered duplicate original leases to
Landlord, and Landlord has duly executed and delivered one of these duplicate
original leases to Tenant.




25.11                      Modification.  This
Lease may only be modified by a writing signed by both Landlord and
Tenant.  All references to this Lease, whether in this Lease or in any
other document or instrument, shall be deemed to incorporate all amendments,
modifications and renewals of this Lease, made after the date
hereof.  If Tenant requests Landlord’s consent to any




67


change in
ownership, merger or consolidation of Tenant or Guarantor, any assumption of the
Lease, or any modification of the Lease, Tenant shall provide Landlord all
relevant information and documents sufficient to enable Landlord to evaluate the
request.  In connection with any such request, Tenant shall pay to
Landlord a fee in an amount equal to the lesser of $2,500.00 and Landlord’s
actual reasonable attorney’s fees and expenses and other reasonable
out-of-pocket expenses incurred in connection with Landlord’s evaluation of
Tenant’s request, the preparation of any documents and amendments, the
subsequent amendment of any documents between Landlord and its collateral pool
lenders (if applicable), and all related matters.




25.12                      Landlord’s
Modification.  Tenant acknowledges that Landlord may mortgage
the Leased Property or use the Leased Property as collateral for a
collateralized mortgage obligations or Real Estate Mortgage Investment Companies
(REMICS).  If any mortgage lender of Landlord desires any modification
of this Lease, Tenant agrees to consider such modification in good faith and to
execute an amendment of this Lease if Tenant finds such modification
acceptable.  Landlord shall not do anything in connection with its
financing of the Leased Property which would limit the rights granted to Tenant
or Subtenant hereunder.




25.13                      No
Merger.  The surrender of this Lease by Tenant or the
cancellation of this Lease by agreement of Tenant and Landlord or the
termination of this Lease on account of Tenant’s default will not work a merger,
and will, at Landlord’s option, terminate any subleases or operate as an
assignment to Landlord of any subleases.  Landlord’s option under this
paragraph will be exercised by notice to Tenant and all known subtenants of the
Leased Property.




25.14                      Laches.  No
delay or omission by either party hereto to exercise any right or power accruing
upon any noncompliance or default by the other party with respect to any of the
terms hereof shall impair any such right or power or be construed to be a waiver
thereof.




25.15                      Limitation on Tenant’s
Recourse.  Tenant’s sole recourse against Landlord, and any
successor to the interest of Landlord in the Leased Property, is to the interest
of Landlord, and any such successor, in the Leased Property.  Tenant
will not have any right to satisfy any judgment which it may have against
Landlord, or any such successor, from any other assets of Landlord, or any such
successor.  In this section, the terms “Landlord” and “successor”
include the shareholders, venturers, and partners of “Landlord” and “successor”
and the officers, directors, and employees of the same.  The
provisions of this section are not intended to limit Tenant’s right to seek
injunctive relief or specific performance.




25.16                      Construction of
Lease.  This Lease has been prepared by Landlord and its
professional advisors and reviewed by Tenant and its professional
advisors.  Landlord, Tenant, and their advisors believe that this
Lease is the product of all their efforts, that it expresses their agreement,
and agree that it shall not be interpreted in favor of either Landlord or Tenant
or against either Landlord or Tenant merely because of their efforts in
preparing it.




25.17                      Counterparts.  This
Lease may be executed in multiple counterparts, each of which shall be deemed an
original hereof.




68


25.18                      Custody of Escrow
Funds.  Any funds paid to Landlord in escrow hereunder may be
held by Landlord or, at Landlord’s election, by a financial institution, the
deposits or accounts of which are insured or guaranteed by a federal or state
agency.  The funds shall not be deemed to be held in trust, may be
commingled with the general funds of Landlord or such other institution, and
shall not bear interest.




25.19                      Landlord’s Status as a
REIT.  Tenant acknowledges that Landlord (or a Landlord
Affiliate) has elected and may hereafter elect to be taxed as a real estate
investment trust (“REIT”) under the Internal Revenue Code.




25.20                      Exhibits.  All
of the exhibits referenced in this Lease are attached hereto and incorporated
herein.




25.21                      WAIVER OF JURY
TRIAL.  LANDLORD, TENANT AND SUBTENANT WAIVE TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY OF THEM AGAINST THE OTHER
ON ALL MATTERS ARISING OUT OF THIS LEASE OR THE USE AND OCCUPANCY OF THE LEASED
PROPERTY (EXCEPT CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE).  IF
LANDLORD COMMENCES ANY SUMMARY PROCEEDING FOR NONPAYMENT OF RENT, TENANT AND
SUBTENANT WILL NOT INTERPOSE, AND WAIVES THE RIGHT TO INTERPOSE, ANY
COUNTERCLAIM IN ANY SUCH PROCEEDING.




25.22                      CONSENT TO
JURISDICTION.  TENANT AND SUBTENANT HEREBY IRREVOCABLY SUBMIT
AND CONSENT TO THE NONEXCLUSIVE JURISDICTION AND VENUE OF ANY STATE OR FEDERAL
COURT HAVING JURISDICTION OVER LUCAS COUNTY, OHIO OR ANY COUNTY IN WHICH A
FACILITY IS LOCATED FOR ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY MATTER
ARISING FROM OR RELATED TO [I] THE COMMITMENT; [II] THIS LEASE; OR
[III] ANY DOCUMENT EXECUTED BY TENANT OR SUBTENANT IN CONNECTION WITH THIS
LEASE.  TENANT AND SUBTENANT HEREBY IRREVOCABLY WAIVE, TO THE FULLEST
EXTENT TENANT AND SUBTENANT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF ANY SUCH ACTION OR
PROCEEDING.  TENANT AND SUBTENANT AGREE THAT A FINAL JUDGMENT IN ANY
SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER
JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
LAW.




TENANT AND SUBTENANT AGREE NOT TO
INSTITUTE ANY LEGAL ACTION OR PROCEEDING AGAINST LANDLORD OR ANY DIRECTOR,
OFFICER, EMPLOYEE, AGENT OR PROPERTY OF LANDLORD, CONCERNING ANY MATTER ARISING
OUT OF OR RELATING TO THE COMMITMENT, THIS LEASE OR ANY RELATED DOCUMENT IN ANY
COURT OTHER THAN A STATE OR FEDERAL COURT HAVING JURISDICTION OVER LUCAS COUNTY,
OHIO UNLESS SUCH COURT LACKS IN PERSONAM OR SUBJECT MATTER JURISDICTION IN WHICH
CASE




69


TENANT
AND SUBTENANT SHALL HAVE THE RIGHT TO INSTITUTE SUCH ACTION OR PROCEEDING BEFORE
ANY COURT HAVING SUCH JURISDICTION.




TENANT AND SUBTENANT HEREBY CONSENT TO
SERVICE OF PROCESS BY LANDLORD IN ANY MANNER AND IN ANY JURISDICTION PERMITTED
BY LAW.  NOTHING HEREIN SHALL AFFECT OR IMPAIR LANDLORD’S RIGHT TO
SERVE LEGAL PROCESS IN ANY MANNER PERMITTED BY LAW, OR LANDLORD’S RIGHT TO BRING
ANY ACTION OR PROCEEDING AGAINST TENANT, SUBTENANT OR THE PROPERTY OF TENANT OR
SUBTENANT IN THE COURTS OF ANY OTHER JURISDICTION.




25.23                      Attorney’s Fees and
Expenses.  Tenant shall pay to Landlord all reasonable costs
and expenses incurred by Landlord in administering this Lease and the security
for this Lease, enforcing or preserving Landlord’s rights under this Lease and
the security for this Lease, and in all matters of collection, whether or not an
Event of Default has actually occurred or has been declared and thereafter
cured, including, but not limited to, [a] reasonable attorney’s and
paralegal’s fees and disbursements; [b] the fees and expenses of any
litigation, administrative, bankruptcy, insolvency, receivership and any other
similar proceeding; [c] court costs; [d] the expenses of Landlord, its
employees, agents, attorneys and witnesses in preparing for litigation,
administrative, bankruptcy, insolvency and other proceedings and for lodging,
travel, and attendance at meetings, hearings, depositions, and trials; and
[e] consulting and witness fees and expenses incurred by Landlord in
connection with any litigation or other proceeding; provided, however,
Landlord’s internal bookkeeping and routine lease servicing costs are not
payable by Tenant.




25.24                      Survival.  The
following provisions shall survive termination of the
Lease:  Article 8 (Defaults and Remedies); Article 9 (Damage
and Destruction); Article 10 (Condemnation); §15.3.6 (Confidentiality);
§15.9 (Transfer of License and Facility Operations); §15.10 (Bed Operating
Rights); §18.2 (Assignment or Sublease); Article 19 (Holdover and
Surrender); Article 24 (Security Interest) and §25.24
(Survival).




25.25                      Time.  Time
is of the essence in the performance of this Lease.




25.26                      Subtenant.  Each
Subtenant has joined in the execution of this Lease to acknowledge that it is
subject to and bound by the terms of the Lease applicable to such Subtenant,
including, without limitation, the grant of a security interest under
Article 24.




[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]









70


IN WITNESS WHEREOF, the parties hereto
have executed this Lease or caused the same to be executed by their respective
duly authorized officers as of the date first set forth above.




Signed
      and acknowledged in the presence of:
              
              Signature
      /s/Rita J. Rogge
              Print
      Name Rita
      Rogge
              
              Signature
      /s/ Donna J.
      Lunsford
              Print
      Name Donna
      Lunsford
            HEALTH
      CARE REIT, INC.
              
              By:
      /s/ Erin C
      Ibele
              
              Title: Senior Vice President
      Administration
              and
      Corporate
      SecretarySignature
      /s/Rita J.
      Rogge
              Print
      Name Rita
      Rogge
              
              Signature
      /s/ Donna J.
      Lunsford
              Print
      Name Donna
      Lunsford
            HCRI COLD
      SPRING PROPERTIES, LLC
              
              By:Health
      Care REIT, Inc., its Sole Member
              
              By: /s/ Erin C
      Ibele
              
              Title: Senior Vice President
      Administration
              and
      Corporate
      SecretarySignature
      s/Rita J.
      Rogge
              Print
      Name Rita
      Rogge
              
              Signature/s/
      Donna J.
      Lunsford
              Print
      Name Donna
      Lunsford
            HCRI
      LOUISIANA PROPERTIES, L.P.
              
              By:HCRI
      Southern Investments I, Inc., General Partner
              
              By:
      /s/ Erin C Ibele
              
              Title: Senior Vice President
      Administration
              and
      Corporate Secretary _Signature
      /s/ Marrji
      Padden
              Print
      Name Marrji
      Padden
              
              Signature
      /s/ Melanie
      Pennington
              Print
      Name Melanie
      Pennington
            EMERITUS
      CORPORATION
              
              By:
      /s/ Eric
      Mendelsohn
              
              Title: SVP Corporate
      Development
              
              Tax
      I.D.
      No.:


S
- 1





Signature
      /s/ Marrji
      Padden
              Print
      Name Marrji
      Padden
              
              Signature
      /s/ Melanie
      Pennington
              Print
      Name Melanie
      Pennington
            SUMMERVILLE
      AT KENNER, L.L.C.
              
              By:
      /s/ Eric
      Mendelsohn
              
              Title: SVP Corporate
      Development
              
              Tax
      I.D.
      No.:Signature
      /s/ Marrji
      Padden
              Print
      Name Marrji
      Padden
              
              Signature
      /s/ Melanie
      Pennington
              Print
      Name Melanie Pennington
            SUMMERVILLE
      AT DAYTON LLC
              
              By:
      /s/ Eric
      Mendelsohn
              
              Title: SVP Corporate
      Development
              
              Tax
      I.D.
      No.:Signature/s/
      Marrji
      Padden
              Print
      Name Marrji
      Padden
              
              Signature
      /s/ Melanie
      Pennington
              Print
      Name Melanie
      Pennington
            SUMMERVILLE
      AT OUTLOOK MANOR LLC
              
              By:
      /s/ Eric
      Mendelsohn
              
              Title: SVP Corporate
      Development
              
              Tax
      I.D.
      No.:Signature
      /s/ Marrji
      Padden
              Print
      Name Marrji
      Padden
              
              Signature
      /s/ Melanie
      Pennington
              Print
      Name Melanie
      Pennington
            SENIOR
      LIVING PROPERTIES, LLC (solely for purposes of confirming the termination
      of the Summerville Lease in accordance with §1.7.)
              
              By:
      /s/ Eric
      Mendelsohn
              
              Title: SVP Corporate
      Development
              
              Tax
      I.D.
      No.:





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STATE
      OF
      OHIO                                           )
              ) SS:
              COUNTY
      OF
      LUCAS                                                      )
              
              The foregoing instrument was
      acknowledged before me this 13th day of January, 2009 by Erin C.
      Ibele, the Senior Vice President Administration and Corporate Secretary of
      Health Care REIT, Inc., a Delaware corporation, on behalf of the
      corporation.
              
              /s/ Rita J. Rogge
              Notary Public
              
              My
      Commission Expires:08-26-2010 [SEAL]STATE
      OF
      OHIO                                           )
              ) SS:
              COUNTY
      OF
      LUCAS                                                      )
              
              The foregoing instrument was
      acknowledged before me this 13th day of January, 2009 by Erin C.
      Ibele, Senior Vice President Administration and Corporate Secretary of
      Health Care REIT, Inc., a Delaware corporation and the sole member of
      HCRI Cold Spring Properties, LLC, a limited liability company
      organized under the laws of the State of Delaware, on behalf of the
      limited liability company.
              
              /s/ Rita J.
      Rogge
              Notary
      Public
              
              My
      Commission Expires:08-26-2010                                                                                                                                           [SEAL]STATE
      OF
      OHIO                                                      )
              ) SS:
              COUNTY
      OF
      LUCAS                                                      )
              
              The foregoing instrument was
      acknowledged before me this 13th day of January, 2009 by Erin C. Ibele,
      the Senior Vice President Administration and Corporate Secretary of
      HCRI Southern Investments I, Inc., a Delaware corporation and
      the General Partner of HCRI Louisiana Properties, L.P., a Delaware
      limited partnership, on behalf of the limited partnership.
              
              /s/ Rita J.
      Rogge
              Notary
      Public
              
              My
      Commission Expires: 08-26-2010                                                                                                                                           [SEAL]


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STATE
      OF
      WASHINGTON                                                                )
              ) SS:
              COUNTY
      OF
      KING                                                )
              
              The foregoing instrument was
      acknowledged before me this 14th day of January, 2009 by Eric
      Mendelsohn, the SVP Corporate Development of Emeritus Corporation, a
      Washington corporation, on behalf of the corporation.
              
              /s/ Melanie
      Pennington
              Notary Public
              
              My
      Commission
      Expires:07-09-2011                                                                                                                                           [SEAL]STATE
      OF
      WASHINGTON                                                                )
              ) SS:
              COUNTY
      OF
      KING                                                )
              
              The foregoing instrument was
      acknowledged before me this 14th day of January, 200__ by Eric
      Mendelsohn, the SVP Corporate Development of Summerville at Kenner,
      L.L.C., a Delaware limited liability company, on behalf of the
      company.
              /s/ Melanie
      Pennington
              Notary Public
              
              My
      Commission Expires: 07-09-2011 [SEAL]STATE
      OF
      WASHINGTON                                                                )
              ) SS:
              COUNTY
      OF
      KING                                                )
              
              The foregoing instrument was
      acknowledged before me this 14th day of January, 2009 by Eric
      Mendelsohn, the SVP Corporate Development of Summerville at Dayton LLC, a
      Delaware limited liability company, on behalf of the company.
              
              /s/ Melanie
      Pennington
              Notary Public
              
              My
      Commission Expires: 07-09-2011 [SEAL]


S
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STATE
      OF
      WASHINGTON                                                                )
              ) SS:
              COUNTY
      OF
      KING                                                )
              
              The foregoing instrument was
      acknowledged before me this 14th day of January, 2009 by Eric Mendelsohn,
      the SVP Corporate Development of Summerville at Outlook Manor LLC, a
      Delaware  limited liability company, on behalf of the
      company.
              
              /s/ Melanie
      Pennington
              Notary Public
              
              My
      Commission Expires: 07-09-2011 [SEAL]STATE
      OF
      WASHINGTON                                                                )
              ) SS:
              COUNTY
      OF KING)
              The foregoing instrument was
      acknowledged before me this 14th day of January, 2009 by Eric Mendelsohn,
      the SVP Corporate Development of Senior Living Properties, LLC, a
      Delaware  limited liability company, on behalf of the
      company.
              /s/ Melanie
      Pennington
              Notary Public
              My
      Commission Expires:
07-09-2011 [SEAL]








THIS
INSTRUMENT PREPARED BY:





Cheryl K.
Slotterbeck, Esq.


Shumaker,
Loop & Kendrick, LLP


1000 Jackson
Street


Toledo,
Ohio  43604-5573





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