Exhibit 10.15


    Exhibit
      10.15

    
 

    FIRST
      AMENDMENT
      TO LEASE AGREEMENT

     

    THIS
      FIRST AMENDMENT TO LEASE AGREEMENT
      (“Amendment”)
      is
      entered into as of June 29, 2005 (“Effective
      Date”),
      by
      and between CNL
      RETIREMENT DSL1 ALABAMA, LP,
      a
      Delaware limited partnership (“Landlord”)
      and
ALABAMA
      SOMERBY, LLC,
      a
      Delaware limited liability company (“Tenant”).

     

    W
      I T N E S S E T H
      :

     

    WHEREAS,
      Landlord, as landlord, and Tenant, as tenant, entered in to that certain Lease
      Agreement dated August 25, 2003 (the “Lease”),
      whereby Landlord leased to Tenant certain real property and improvements
      commonly known as “Jones Farm” and located in Madison County, Alabama, as more
      particularly described in Exhibit “A” of the Lease (the “Property”);
      and


     

    WHEREAS,
      Landlord, Tenant and certain of their affiliates also entered into an Earn
      Out
      Agreement dated as of August 25, 2003 (the “Earn
      Out Agreement”);
      and

     

    WHEREAS,
      the Earn
      Out Agreement entitles Daniel Senior Living, L.L.C. (“Daniel”)
      and
      American Retirement Corporation (“ARC”
      and,
      together with Daniel, the “Beneficiaries”)
      to
      receive additional funds from Landlord upon the meeting of certain conditions,
      which have been met; and

     

    WHEREAS,
      simultaneously with the execution hereof, Landlord is making a payment to the
      Beneficiaries as required under the Earn Out Agreement; and

     

    WHEREAS,
      pursuant to paragraph 4(b) of the Earn Out Agreement, upon such payment to
      the
      Beneficiaries, Landlord and Tenant are to amend the Lease to provide for an
      additional rental payment reimbursing Landlord for amounts advanced under the
      Earn Out Agreement.

     

    NOW,
      THEREFORE,
      in
      consideration of the mutual covenants herein contained and other good and
      valuable consideration, the mutual receipt and legal sufficiency of which are
      hereby acknowledged, Landlord and Tenant hereby agree as follows:

     

    13.  Recitals.
      The
      above recitals are true and correct and their terms and provisions are
      incorporated herein for all purposes.

     

    14.  The
      following definitions are hereby added to the Lease:

     

    “First
      Earn Out Payment Rent”
      shall
      mean an amount equal to Four Hundred Forty-Nine Thousand Four Hundred Eighty-Two
      and 32/100 ($449,482.32) per year, payable in monthly installments pursuant
      to
      Section 3.13.

     

    15.  Landlord’s
      Adjusted Investment Amount.
      For
      purposes of determining the amount of Landlord’s Adjusted Investment Amount, as
      defined in the Lease, Six Million and No/100 Dollars ($6,000,000.00) of the
      amount funded as of the Effective Date pursuant to the Earn Out Agreement is
      hereby allocated to the Property.

     

    
      
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    16.  The
      following provision shall be added to the Lease as Section 3.13:

     

    First
      Earn Out Rent After First Earn Out Payment.
      Upon
      the funding of the First Earn Out Payment (as defined in the Earn Out Agreement)
      and continuing through the end of the ninth Accounting Year of the Initial
      Term
      (but not thereafter), First Earn Out Payment Rent shall be due at the same
      time
      and under the same terms as Minimum Rent is due under the Lease (except as
      otherwise expressly provided herein).

     

    17.  The
      following provision shall be added to the Lease as Section 3.14:

     

    Escalation
      of First Earn Out Payment Rent.
      Commencing on the first day of the Fourth Accounting Year and on the first
      day
      of each Accounting Year thereafter (through and including the first day of
      the
      ninth Accounting Year, but not thereafter), First Earn Out Payment Rent shall
      escalate at a rate of two and one half percent (2.5%) per annum.

     

    18.  The
      following provision shall be added to the Lease as Section 3.15: 

     

    Imputed
      Interest.
      In the
      event that any payments of First Earn Out Payment Rent hereunder include or
      are
      deemed to include any unstated or imputed interest, the rate for determining
      the
      amount of such payments that will constitute such unstated or imputed interest
      will be the "short-term federal rate" (as such term is defined in Section
      1274(d) of the Code and the regulations, rulings and pronouncements promulgated
      thereunder) as of the date hereof which the parties hereto acknowledge is
      (1.21%), and the parties hereto shall prepare and file all tax returns to be
      filed with any taxing authority in a manner consistent with the foregoing and
      shall take no position inconsistent therewith in any tax return, in any
      discussion with or proceeding before any taxing authority, or
      otherwise.

     

    19.  Second
      CMC Mortgage Loan.
      The
      definition of “Mortgage” set forth in Section 19.4 of the Lease shall be deemed
      to refer to both the first mortgage loan advanced as of the date of the Lease
      and the second mortgage loan being used to fund the payment being made pursuant
      to the Earn Out Agreement as of the Effective Date and all of the provisions
      of
      Section 19.4 applying to the first mortgage shall also apply to the second
      mortgage.

     

    20.  Property
      Expenses.
      The
      following paragraph is hereby added at the end of Exhibit “H”:

     

    Notwithstanding
      anything contained in the foregoing, in no event shall costs and expenses
      relating to the hiring or termination of any corporate-level personnel of the
      Tenant or Manager who are not direct employees of the Facility, including but
      not limited to the executive director of the Facility, be paid as a Property
      Expense payable from Total Facility Revenue, but rather shall be a cost borne
      by
      Tenant or Manager independently.

     

    21.  Assignment
      of Daniel interests in
      Tenant to ARC.
      Landlord consents to the assignment by Daniel to ARC of all of its membership
      interests in and to the Tenant.

     

    22.  Full
      Force and Effect.
      Except
      as herein provided, all other terms, conditions and provisions of the Lease
      shall remain in full force and effect and cannot be modified unless said
      modification is reduced to writing and signed by all parties.

     

    23.  Successors
      and Assigns.
      This
      Amendment is binding upon and shall inure to the benefit of the parties hereto
      and their respective successors and assigns as may be permitted under the
      Lease.

     

    24.  Counterparts.
      This
      Amendment may be executed in one or more counterparts, any one of which need
      not
      contain the signature of more than one party and all of which taken together
      shall constitute one and the same agreement.

     

    [SIGNATURES
      ON FOLLOWING PAGE]

     

    
      
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        IN
          WITNESS WHEREOF,
          the
          parties have executed this Amendment as of the date above first
          written.

      

       

      
        	 	
                LANDLORD:

                 

                CNL
                  RETIREMENT DSL1 ALABAMA, LP,
                  a
                  Delaware limited
                  partnership

                 

                By:
                  CNL
                  Retirement DSL1 GP, LLC,
                  a

                Delaware
                  limited liability company, 

                its
                  sole general partner

                 

                 

                By:
                  ___________________________

                Name:
                  _________________________

                Title:
                  __________________________

                 

              


      

    

    


    
      	 	
              TENANT:

               

              ALABAMA
                SOMERBY, LLC, a
                Delaware limited liability company

              By:
                ARC Somerby Holdings, Inc., a Tennessee 

              corporation,
                Managing Member

               

               

              By:
                __________________________

              Name:
                ________________________

              Title:
                _________________________

               

            


    

    


     

    
      
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