Exhibit 10.10


    Exhibit
      10.10

    


    [Boynton
      Beach, Florida]

    [Delray,
      Florida]

    [Jacksonville,
      Florida]

    [Cleveland,
      Ohio]

    [Houston,
      Texas]

    [San
      Antonio, Texas]

    [Victoria,
      Texas]

     

     

    


    FIFTH
      AMENDMENT TO MASTER LEASE

     

    (Phase
      I)

     

    THIS
      FIFTH AMENDMENT TO MASTER LEASE (PHASE I) (this “Amendment”)
      is
      made and entered into as of this 30th day of June, 2005 (the “Effective
      Date”),
      by
      and between HEALTH CARE PROPERTY INVESTORS, INC., a Maryland corporation
      (“HCP”)
      and
      TEXAS HCP HOLDING, L.P., a Delaware limited partnership (collectively, as their
      interests may appear, “Lessor”),
      on
      the one hand, and ARC
      RICHMOND HEIGHTS, LLC, a Tennessee limited liability company, ARC BOYNTON BEACH,
      LLC, a Tennessee limited liability company, ARC DELRAY BEACH, LLC, a Tennessee
      limited liability company, ARC VICTORIA, L.P., a Tennessee limited partnership,
      ARC CARRIAGE CLUB OF JACKSONVILLE, INC., a Tennessee corporation, ARC SHAVANO,
      L.P., a Tennessee limited partnership and ARC POST OAK, L.P., a Tennessee
      limited partnership (collectively and jointly and severally, “Lessee”),
      on
      the other hand.

     

    RECITALS

     

    A. Lessor
      is
      the “Lessor” and Lessee is the current “Lessee” pursuant to that certain Master
      Lease dated March 29, 2002 (the “Original
      Lease”),
      as
      amended by that certain First Amendment to Lease dated September 30, 2002 (the
      “First
      Amendment”),
      that
      certain Second Amendment to Lease (Phase I) dated February 28, 2003 (the
“Second
      Amendment”),
      that
      certain Third Amendment to Lease (Phase I) dated September 23, 2003 (the
“Third
      Amendment”)
      and
      that certain Fourth Amendment to Master Lease (Phase I) dated July 15, 2004
      (the
“Fourth
      Amendment”).
      The
      Original Lease, as amended by the First Amendment, Second Amendment, Third
      Amendment and Fourth Amendment shall be referred to herein, collectively, as
      the
“Lease.”

     

    B. The
      Lessee’s obligations under the Lease are guaranteed by (i) ARCPI Holdings, Inc.,
      a Delaware corporation (“ARCPI”)
      pursuant to a written Guaranty of Obligations dated as of March 29, 2002, as
      amended by that certain First Amendment to Guaranty of Obligations dated as
      of
      February 28, 2003 (the “First
      Amendment to ARCPI Guaranty”),
      and
      that certain Second Amendment to Guaranty of Obligations of even date herewith
      (the “Second
      Amendment to ARCPI Guaranty”)
      (as the same may be further amended and reaffirmed from time to time in
      accordance with the terms thereof, the “ARCPI
      Guaranty”),
      and
      (ii) American Retirement Corporation, a Tennessee corporation (“ARC”),
      pursuant to that certain written Guaranty of Obligations (Phase I) of even
      date
      herewith (as the same may be further amended and reaffirmed from time to time
      in
      accordance with the terms thereof, the “ARC
      Guaranty”).
      ARCPI
      and ARC shall sometimes be referred to herein and in the Lease, collectively,
      as
“Guarantors,”
      and
      individually as a “Guarantor,”
      and
      the ARCPI Guaranty and the ARC Guaranty shall sometimes be referred to herein
      and in the Lease, collectively, as “Guaranties,”
      and
      individually as a “Guaranty.”

     

    
      
        
          
          

        

        
          -1-

          
            

          

        

        
          
          

        

      

    

    C. The
      Lease
      covers the “Leased
      Property”
      of four
      (4) separate assisted living facilities located in Cleveland, Ohio, Delray,
      Florida, Boynton Beach, Florida and San Antonio, Texas, two (2) separate
      congregate care facilities located in Houston, Texas, and Jacksonville, Florida,
      and one (1) mixed congregate care and assisted living facility located in
      Victoria, Texas, all as more particularly described in the Lease. 

     

    D. Lessor
      and Lessee desire to amend the Lease, but only on the terms and conditions
      set
      forth herein.

     

    E. Capitalized
      terms used herein and not defined herein shall have the meanings given such
      terms in the Lease.

     

    AMENDMENT

     

    IN
      CONSIDERATION OF the foregoing recitals, the mutual promises contained herein,
      and other good and valuable consideration, the receipt and adequacy of which
      are
      hereby acknowledged, Lessor and Lessee hereby agree as follows:

     

    1.            
      Addition
      of ARC Guaranty.
      Notwithstanding anything to the contrary in the Lease, as hereby amended,
      including the prior release of ARC as a “Guarantor”
      pursuant to the First Amendment, from and after the Effective Date ARC is hereby
      added as a “Guarantor”
      under
      the Lease, as hereby amended, pursuant to the ARC Guaranty, and the definitions
      of “Guarantor”
      and
“Guaranty”
      appearing in Article II of the Original Lease shall include, respectively,
      (i)
      ARCPI and ARC and (ii) the ARCPI Guaranty and the ARC
      Guaranty.

     

    2.            
      Release
      of Letter of Credit and Provisions Relating to Cash Security Deposit.


     

    
    

    (a) Effective
      as of the Effective Date, the provisions of Article XXI of the Original Lease
      shall have no further force or effect and Lessor shall promptly return to Lessor
      the letters of credit currently being held by Lessor pursuant to such Article
      XXI. Additionally, the Lease shall be further amended in the following
      particulars:

     

    (i) The
      definitions of “Letter
      of Credit Amount,”“Victoria
      Letter of Credit Amount”
      and
“Letter
      of Credit Date”
      shall
      be deleted from Article II of the Original Lease, as amended by the Second
      Amendment, and the following new definitions shall be added to such Article
      II:

     

    “Cash
      Security Deposit:
      A cash
      security deposit with Lessor in the amount of the Cash Security Deposit Amount,
      as may be required pursuant to the provisions of this Lease”

     

    “Cash
      Security Deposit Amount:
      The sum
      of Five Million Dollars ($5,000,000.00).”

     

    (ii) The
      phrase “Lessee shall fail to obtain a letter of credit as required by
      Article XXI” appearing in Section 16.1(d) of the Original Lease is hereby
      amended to read “Lessee shall fail to deposit with Lessor any Cash Security
      Deposit required by this Lease.”

     

    
      
        
          
          

        

        
          -2-

          
            

          

        

        
          
          

        

      

    

    (iii) Section
      31.2.5 of the Original Lease is hereby amended to read, in its entirety, as
      follows:

     

    “31.2.5  Lessee’s
      obligation to provide any Cash Security Deposit pursuant to any provision of
      this Lease shall be segregated so that (a) the applicable Lessee shall be
      required to provide a Cash Security Deposit (if any) pursuant to the New Lease,
      on the same terms and conditions as set forth in this Lease, except that “Cash
      Security Deposit Amount” under the New Lease shall mean an amount equal to the
      then existing Cash Security Deposit Amount under this Lease (prior to the
      amendment contemplated in Section 31.2.2 above), times a fraction, the numerator
      of which is the then existing annual Allocated Minimum Rent for the Separated
      Propert(ies), and the denominator of which is the then existing total annual
      Minimum Rent payable for all Facilities (including the Separated Propert(ies)),
      and (b) the “Cash Security Deposit Amount” under this Lease (as amended) shall
      be reduced by the “Cash Security Deposit Amount” for the New Lease determined in
      accordance with subsection (a) above.”

     

    (iv) Exhibit
      D
      to the
      Original Lease is hereby deleted.

     

    (v) Section
      4
      of the Second Amendment shall have no further force or effect.  

     

    (b) Quarterly
      Cash Flow Coverage; Cash Security Deposit and Impound Accounts for Added
      Facilities. 

     

    (i) Without
      in any way limiting Lessee’s obligations under Section 25.1.2 of the Original
      Lease, within thirty (30) days of the end of each Quarter during the Term for
      each Facility commencing with the first Quarter following the Effective Date
      of
      this Amendment, Lessee shall provide such information to Lessor as necessary
      for
      Lessor to ascertain Lessee’s Cash Flow Coverage for such Quarter. If for any two
      (2) consecutive Quarters following the Effective Date, the average Cash Flow
      Coverage for all Facilities is less than 1.1 or upon the occurrence of any
      monetary Event of Default (i.e., following any applicable notice and cure
      period)(in either case, a “Triggering
      Event”),
      then
      Lessee shall deposit with Lessor the Cash Security Deposit as additional
      security for Lessee’s obligations under the Lease, as hereby amended, in the
      Cash Security Deposit Amount; provided, however, that at Lessee’s option, Lessee
      shall be entitled to fund such Cash Security Deposit in ten (10) equal monthly
      installments commencing upon the first (1st)
      day of
      the first calendar month following such Triggering Event and continuing
      thereafter on the first (1st)
      day of
      each month until funded in its entirety. Lessor shall either keep the Cash
      Security Deposit in a separate interest-bearing account as may be selected
      by
      Lessor from time to time, or may commingle the Cash Security Deposit with its
      general funds so long as Lessor credits and adds to the Cash Security Deposit
      each month an amount equal to the interest that would have been earned on the
      Cash Security Deposit had Lessor invested the same in an interest-bearing
      account, as reasonably determined by Lessor. In either case, all earned interest
      or deemed interest on such Cash Security Deposit shall be added to and become
      part of the Cash Security Deposit and held and applied by Lessor in accordance
      with the provisions of this Section 2(b). All interest or deemed interest earned
      on the Cash Security Deposit shall be for the account of Lessee and Lessee
      shall
      promptly deliver to Lessor upon request any Internal Revenue Service Form W-9
      or
      such other certification as Lessor may reasonably request in connection with
      the
      investment of such Cash Security Deposit. No notice to Lessee shall be required
      to enable Lessor to draw upon or apply such Cash Security Deposit. In the event
      of a transfer of Lessor’s interest in the Leased Property, Lessor shall transfer
      the Cash Security Deposit to the transferee and thereupon shall, without any
      further agreement between the parties, be released by Lessee from all liability
      therefor, and it is agreed that the provisions hereof shall apply to every
      transfer or assignment of such Cash Security Deposit to a new Lessor.


     

    
      
        
          
          

        

        
          -3-

          
            

          

        

        
          
          

        

      

    

    (ii) If,
      at
      any time after a Triggering Event, no further monetary Event of Default exists
      and the average Cash Flow Coverage for all Facilities for three (3) consecutive
      Quarters is greater than 1.1, then Lessor shall release to Lessee the Cash
      Security Deposit. Any subsequent Triggering Event shall, however, entitle Lessor
      to require that Lessee again fund such Cash Security Deposit in accordance
      with
      the provisions of this Section 2(b).

     

    (iii) Lessor
      shall have the right to apply all or any portion of the Cash Security Deposit
      up
      to its full amount, as applicable, whenever (A) an Event of Default hereunder
      has occurred, (B) an event of default beyond applicable periods of notice and
      cure under any other lease or agreement between Lessor or an Affiliate of Lessor
      and Lessee or an Affiliate of Lessee or under any other letter of credit,
      guaranty, mortgage, deed of trust, or other instrument now or hereafter executed
      by Lessee or an Affiliate of Lessee in favor of Lessor or an Affiliate of Lessor
      has occurred or (C) an event or circumstance has occurred which with notice
      or
      passage of time, or both, would constitute an Event of Default hereunder or
      an
      event of default under any such other lease, agreement, letter of credit,
      guaranty, mortgage, deed of trust or other instrument, notwithstanding that
      transmittal of any such notice may be barred by applicable law. No such
      application of the Cash Security Deposit shall (1) cure or constitute a waiver
      of an Event of Default, (2) be deemed to fix or determine the amounts to which
      Lessor is entitled to recover under the Lease, as hereby amended, or otherwise,
      or (3) be deemed to limit or waive Lessor’s right to pursue any remedies
      provided for in the Lease, as hereby amended. If any portion of the Cash
      Security Deposit is applied by Lessor, Lessee shall, within two (2) business
      days after demand by Lessor, cause an amount equal to the amount of Cash
      Security Deposit previously applied to be paid to Lessor in order to replenish
      the Cash Security Deposit to the full required amount.

     

    (iv) LESSEE
      WAIVES THE PROVISIONS OF ANY APPLICABLE LAWS NOW IN FORCE OR THAT BECOME IN
      FORCE AFTER THE EFFECTIVE DATE HEREOF, THAT PROVIDE IN SUBSTANCE THAT LESSOR
      MAY
      CLAIM FROM A CASH SECURITY DEPOSIT ONLY THOSE SUMS REASONABLY NECESSARY TO
      REMEDY DEFAULTS IN THE PAYMENT OF RENT, TO REPAIR DAMAGE CAUSED BY LESSEE,
      OR TO
      CLEAN THE LEASED PROPERTY. LESSOR AND LESSEE AGREE THAT LESSOR MAY, IN ADDITION,
      CLAIM THOSE SUMS NECESSARY TO COMPENSATE LESSOR FOR ANY OTHER FORESEEABLE OR
      UNFORESEEABLE ACTUAL LOSS OR DAMAGE CAUSED BY THE ACT OR OMISSION OF LESSEE
      OR
      LESSEE’S OFFICERS, AGENTS, EMPLOYEES, INDEPENDENT CONTRACTORS, OR INVITEES,
      INCLUDING, BUT NOT LIMITED TO THOSE DAMAGES TO WHICH LESSOR IS ENTITLED PURSUANT
      TO ARTICLE XVI OF THE LEASE.

     

    
      
        
          
          

        

        
          -4-

          
            

          

        

        
          
          

        

      

    

     

    Lessee’s
      Initials:   

     

    (v) If
      Lessee
      shall fully and faithfully perform every provision of the Lease, as hereby
      amended, to be performed by Lessee, upon the expiration of the Term of the
      Lease, as hereby amended, with respect to the last Facility the Cash Security
      Deposit shall be applied against any amounts owed by Lessee to Lessor and any
      balance thereof shall be returned to Lessee (or at Lessor's option, to the
      last
      permitted assignee of Lessee’s interest under the Lease, as hereby amended)
      within ninety (90) days after the expiration of such Term.

     

                                 
      3. Reaffirmation of Master Lease. Lessor and Lessee hereby
      acknowledge, agree and reaffirm that the Lease, as hereby amended, is and the
      parties intend the same for all purposes to be treated as a single, integrated
      and indivisible agreement.

     

             
      4. Governing
      Law. THIS AMENDMENT WAS NEGOTIATED IN THE STATE OF CALIFORNIA, WHICH STATE
      THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE
      UNDERLYING TRANSACTION EMBODIED HEREBY. ACCORDINGLY, IN ALL RESPECTS THIS
      AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
      THE INTERNAL LAWS OF THE STATE OF CALIFORNIA (WITHOUT REGARD OF PRINCIPLES
      OR
      CONFLICTS OF LAW) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
      AMERICA.

     

                             
      5. Full
      Force and Effect; Counterparts; Facsimile Signatures.
      Except
      as hereby amended, the Lease shall remain in full force and effect. This
      Amendment may be executed in any number of counterparts, all of which shall
      constitute one and the same instrument. Telecopied signatures may be used in
      place of original signatures on this Amendment, and Lessor and Lessee both
      intend to be bound by the signatures of the telecopied document.

     

     

    [SIGNATURE
      PAGE FOLLOWS]

     

    
      
        
          
          

        

        
          -5-

          
            

          

        

        
          
          

        

      

    

    


     

    IN
      WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
      day
      and year first above written.

     

    
      	
              WITNESS

            	
              “Lessor”

            
	 	 
	
               

                                                                         
                

              Witness

               

                                                                         
                

              Witness

            	
              HEALTH
                CARE PROPERTY INVESTORS, INC., a Maryland corporation

               

               

              By:                       
                

              Title:                       
                

            
	 	 
	
               

               

                                                                        
                

              Witness

               

                                                                        
                

              Witness

            	
              TEXAS
                HCP HOLDING, L.P., a Delaware limited partnership

               

              By: Texas
                HCP G.P., INC., a Delaware 

              corporation,
                its sole General Partner

               

               

              By:                       
                

              Title:
                                                   
                

            
	
               

               

               

               

              [Signature
                pages continue]

            


    

    
 

     

    
      
        
        

      

      
        -6-

        
          

        

      

      
        
        

      

    

    
 

    


    
      	
              WITNESS

            	
              “Lessee”

            
	 	 
	
               

               

                                      

              Witness

               

               

                                              
                

              Witness

            	
              ARC
                RICHMOND HEIGHTS, LLC, 

              a
                Tennessee limited liability company

              ARC
                DELRAY BEACH, LLC,

              a
                Tennessee limited liability company

              ARC
                BOYNTON BEACH, LLC, 

              a
                Tennessee limited liability company

              ARC
                CARRIAGE CLUB OF JACKSONVILLE,

              INC.,
                a Tennessee corporation

               

              By:                         
                

              Title:                           
                

            
	
               

               

                                              
                

              Witness

               

                                              
                

              Witness

            	
              ARC
                VICTORIA, L.P., a Tennessee limited partnership

               

              By: ARC
                Homewood Victoria, Inc., a Tennessee corporation, its general
                partner

               

              
                By:                         
                  

                Title:                           
                  

              

            
	
               

               

                                              
                

              Witness

               

                                              
                

              Witness

            	
              ARC
                POST OAK L.P., a Tennessee limited partnership

               

              By: ARC
                Hampton Post Oak, Inc., a Tennessee corporation, its general
                partner

               

               

              By:                         
                

              Title:                            
                

            
	
               

               

                                              
                

              Witness

               

                                              
                

              Witness

            	
               

              ARC
                SHAVANO, L.P., a Tennessee limited partnership

               

              By: ARC
                Shavano Park, Inc., a Tennessee corporation, its general
                partner

               

              By:                              
                

              Title: