Intercreditor Agreement




 

INTERCREDITOR
AGREEMENT

 

THIS
INTERCREDITOR
AGREEMENT (“Agreement”)
is entered into effective as of the 3rd day of March, 2005 by and between
HEALTH
CARE REIT, INC., a
Delaware corporation (“HCN”), and HEALTHCARE
REALTY TRUST INCORPORATED, a
Maryland corporation (“HRT”).

 

RECITALS

 

A. HCN and
certain HCN Affiliates, as hereinafter defined, lease to Emeritus Corporation, a
Washington corporation, (“Emeritus”) the real property identified on Exhibit “A”
attached hereto and made a part hereof (“ML Leased Property”) pursuant to an
Amended and Restated Master Lease Agreement dated September 30, 2003 (“Master
Lease”).

 

B. HCN has
made a loan to Emeritus in the principal amount of $25,800,000 (“Loan”) pursuant
to an Amended and Restated Loan Agreement dated September 30, 2003 (“Loan
Agreement”) as evidenced by an Amended and Restated Note dated September 30,
2003 (“Note”). The Loan is secured by an Amended and Restated Leasehold
Mortgage/Deed of Trust, Security Agreement, Assignment of Lease and Rents,
Financing Statement and Fixture Filing granted by Emeritus to HCN dated
effective as of September 30, 2003 with respect to the ML Leased Property (“ML
Leasehold Mortgage”) granting HCN an interest in the leasehold estate of
Emeritus arising under the Master Lease.

 

C. HCN has
agreed to sell and HRT has agreed to purchase the Note and take an assignment of
the Loan Documents, as defined below.

 

D. In
connection with the sale of the Note, HCN and HRT have agreed to enter into this
Agreement to clarify their respective rights.

 

NOW
THEREFORE, to induce HCN to sell the Note and assign the Loan Documents to HRT,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:

 

1. Definitions. As used
in this Intercreditor Agreement (this “Agreement”), the following terms shall
have the following meanings (with terms defined above having the meanings
indicated):

 

“Affiliate” means
HCRI Mississippi Properties, Inc., a Mississippi corporation; HCRI Massachusetts
Properties Trust II, a Massachusetts business trust; and HCRI Texas Properties,
Ltd., a Texas limited partnership.

 

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

 

“HRT
Collateral” means
the leasehold estate of Emeritus arising under the Lease in the Leased Property,
and any other property of Emeritus located upon or held in connection with the
Leased Property in which HRT has a security interest, however created as of the
date hereof.

 

“HRT
Debt” means
those obligations, liabilities and indebtedness arising under the Loan
Documents, as amended from time to time.

 

“Indefeasibly
Satisfied” means
receipt of payment in full in cash followed by the passage of a period of 91
days from such payment in which no challenge to such payment as a preference or
other impermissible payment has been made by any person, or upon the dismissal,
withdrawal or final ruling against such a challenge, together with the
termination of all further commitments of Landlord or HRT, as the case may be,
to lend money to Emeritus in connection with the Leased Property.

 

“Insolvency
Event” means
the following:

 

[1] Emeritus
commences any case, proceeding or other action (i) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, conservatorship or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to adjudicate it
as bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding up, liquidation, dissolution, composition or other relief with respect
to it or its debts, or (ii) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or Emeritus making a general assignment for the
benefit of its creditors; or

 

[2] there is
commenced against Emeritus any case, proceeding or other action of a nature
referred to in clause [1] above that (i) results in the entry of an order for
relief or any such adjudication or appointment or (ii) remains undismissed,
undischarged or unbonded for a period of 60 days; or

 

[3] there is
commenced against Emeritus any case, proceeding or other action seeking issuance
of a warrant of attachment, execution, distraint or similar process against all
or any substantial part of its assets which results in the entry of an order for
any such relief and which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry of such order;
or

 

[a] Emeritus
takes any action in furtherance of, or indicating its consent to, approval of,
or acquiescence in, any of the acts set forth in any of clauses [1], [2] or [3]
above; or

 

[b] Emeritus
generally is not paying, or is unable to pay, or admits in writing its inability
to pay, its debts as they become due.

 

“Landlord” means
HCN and each Affiliate, jointly and severally.

 

“Landlord
Collateral” means
the following described property located at a Leased Property, or arising in
connection with the operation of the Leased Property, whether now owned or
hereafter acquired by Tenant or Subtenant to secure the payment and performance
of the Landlord Obligations:

 

[1] 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.

 

[2] 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.

 

[3] 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.

 

[4] 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.

 

[5] 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 there under, 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 there under
whether or not the same was deposited to secure performance by the subtenants,
occupants, licensees and concessionaires of their obligations there under,
including the right to receive and collect the rents, revenues, and other
charges there under.

 

[6] All
ledger sheets, files, records, computer programs, tapes, other electronic data
processing materials, and other documentation.

 

[7] The
products and proceeds of the preceding listed property, including, without
limitation, cash and non cash proceeds, proceeds of proceeds, and insurance
proceeds.

 

“Landlord
Obligations” means
all obligations, liabilities and indebtedness of every nature of Emeritus from
time to time owed to Landlord under the Lease, whether now existing or hereafter
incurred or created, and all fees, costs and expenses, whether primary,
secondary, direct, contingent, fixed or otherwise, heretofore, now and from time
to time hereafter owing, due or payable, whether before or after the
commencement of an Insolvency Event (including, without limitation, interest or
rent accruing thereon after the commencement of an Insolvency Event, without
regard to whether or not such interest is an allowed claim.

 

“Lease” means
the Master Lease, as the same may be hereafter modified, supplemented, amended,
restated, extended, renewed or increased.

 

“Leased
Property” means
individually and collectively each ML Leased Property.

 

“Loan
Documents” means
collectively the Note, the ML Leasehold Mortgage, and the Loan Agreement, as the
same may be hereafter modified, supplemented, amended, restated, extended,
renewed or increased.

 

“Subtenant” means
each of Texas ESC Lubbock, L.P., a Washington limited partnership; and Painted
Post Properties, Inc., a Washington corporation.

 

“Tenant” means
Emeritus Corporation, a Washington corporation.

 


	
      2.
	
      Subordination
      of Payments.




 

(a) HRT
hereby agrees that the HRT Debt shall be subordinated to the Landlord
Obligations. Except as provided in 2(b), no payment shall be made by or on
behalf of Emeritus for or on account of the HRT Debt, and HRT shall not take or
receive from Emeritus, directly or indirectly, in cash or other property or by
setoff or in any other manner, payment of all or any of the HRT Debt, if any, so
long as any sums in respect to the Landlord Obligations shall then be due and
payable. If there is any conflict between the Lease and the Loan Documents, the
terms of the Lease shall govern.

 

(b) Notwithstanding
any provision contained herein, as long as no monetary Event of Default has
occurred and is continuing under the Lease, HRT may (i) receive all payments as
and when due on the HRT Debt pursuant to the HRT Documents, including without
limitation, the final payment due at maturity, (ii) allow Emeritus to prepay the
Note in full provided the funds for the prepayment are not Landlord Collateral,
and (iii) may bring legal proceedings against Emeritus under the Note, but shall
not pursue or prosecute any right or remedy which HRT may have as a secured
party or otherwise under the ML Leasehold Mortgage.

 

3. Subordination
of Liens on Landlord Collateral. HRT
hereby agrees that all of its rights with respect to the Landlord Collateral
shall be in all respects subject and subordinate to the rights of Landlord with
respect to such Landlord Collateral in connection with and on account of the
Landlord Obligations. HRT agrees to refrain from challenging the validity,
enforceability, priority or perfection of Landlord’s security interests and
liens in the Landlord Collateral. The foregoing subordination shall be effective
irrespective of: (a) the time, order, manner or method of creation, attachment
or perfection of the respective security interests, liens and/or other rights
granted to HRT or Landlord, or any lapse of perfection or attachment; (b) the
time or manner of the filing of their respective financing statements; (c)
whether HRT or Landlord or any bailee or agent of either party holds possession
of any or all of the property or assets of Emeritus; (d) the dating, execution
or delivery of any agreement, document or instrument granting HRT or Landlord
security interests and/or liens in or on any or all of the property or assets of
Emeritus; (e) any amendment, modification, restatement, extension, renewal or
increase to the Landlord Obligations or Lease or the creation of any new
indebtedness which becomes a part of the Landlord Obligations or secured or
evidenced by the Lease; and (f) any provision of the UCC or any other applicable
law to the contrary.

 

4. Adding
and Removing Facilities from the Master Lease.
Landlord may amend the Master Lease to include additional facilities without
HRT’s consent, provided that Landlord has consented to Tenant amending the ML
Leasehold Mortgage to include such additional facilities. Additionally, in the
event Landlord desires to amend the Lease to remove a facility from the Master
Lease, HRT shall release such facility upon payment by Emeritus of an amount
mutually agreed to by HRT and Emeritus or a prorated amount of the then
outstanding HRT Debt on a site by site basis, i.e. the release amount shall be
equal to then outstanding HRT Debt divided by the number of facilities then in
the Master Lease. Landlord shall provide HRT with a copy of any amendment to the
Master Lease within five days of execution.

 

5. Default
Under Loan Documents. In the
event of a default under the Loan Documents, HRT shall not have the right to
accelerate the Loan and demand payment in full unless HRT has given Landlord
notice of the default and Landlord has failed to cure such default as set forth
in §8 hereof. If there is a conflict between the terms of the Lease and of the
Loan Documents, the Lease shall prevail. Furthermore, provided Emeritus is
paying all sums due under the Note, no Event of Default shall be deemed to exist
under the Loan Documents so long as HCN has not provided notice of an Event of
Default under the Lease.

 

6. Default
Under Lease. If an
Event of Default, as defined in the Lease, exists under the Lease, Landlord
shall have all remedies available in accordance with and under the terms of the
Lease, but only after Landlord has given HRT notice of the default and HRT has
failed to cure such default as set forth in §8 hereof.

 


	
      7.
	
      Default
      Notices.




 

(a) HRT will
furnish Landlord with a copy of any default notice sent to Emeritus in respect
of the HRT Debt simultaneously with giving such notice to Emeritus.

 

(b) Landlord
will furnish HRT with a copy of any default notice sent to Tenant in respect of
the Landlord Obligations simultaneously with giving such notice to
Emeritus.

 

(c) The
failure of either HRT or Landlord to deliver any notice of default to the other
party shall not impair the notices given to Emeritus/Tenant, however, each party
retains all rights under this Agreement including its respective right to cure
an event of default upon receipt of notice.

 

8. Right
to Cure and Assumption of Lease. Upon
receipt of a notice pursuant to §7, each party shall have 10 days to cure a
monetary default after any applicable cure or grace period has expired and 30
days to cure any other default on behalf of Emeritus, provided such default is
curable. HRT and Landlord shall not exercise any right or remedy under the Loan
Documents or Lease, respectively, and shall not foreclose on the interest of
Emeritus in the Lease or exercise Landlord remedies under the Lease,
respectively, until written notice of default has been given by the party
declaring the default to the other party hereto and the cure period has expired
without such default having been cured. Without limitation, in the event of a
monetary default by Tenant under the Lease which does not require written notice
of default from Landlord to Tenant under the terms of the Lease, Landlord must
still give HRT written notice of such default and at least 10 days within which
to cure such monetary default before Landlord may exercise any right or remedy
under the Lease for such monetary default.

 

If HRT
cures an Emeritus monetary default under the Lease in accordance with this §8,
HRT shall have the right to assume the Lease provided that (i) HRT remains
primarily liable under the Lease, and (ii) HRT’s credit rating at the time of
the assumption has not deteriorated from the effective date of this Agreement.
If HRT elects to assume the Lease, HRT must notify HCN in writing of the
election within 15 business days of receipt of notice of a default from HCN.
Failure to so notify HCN shall be deemed to be a waiver of the right to assume
the Lease, but only with respect to the specific default set forth in the
notice.

 

If no
default exists under the Lease, but HRT declares an event of default under the
Note, HRT shall also have the right to assume the Lease provided (i) HRT
complies with the above provisions (ii) the term of the assumption shall
terminate on the date that all monetary obligations under the Second Amended and
Restated Note made by Emeritus payable to the order of HRT of even date herewith
(“2nd A &
R Note”) have been satisfied in full, at which time HRT shall assign the Lease
back to Emeritus provided Emeritus is then the subtenant or manager of the
Leased Property, and (iii) unless otherwise consented to by HCN, HRT subleases
each of the facilities to Emeritus or an Emeritus affiliate or enters into a
management agreement with Emeritus or an Emeritus affiliate for each of the
facilities as long as EBITDARM coverage is not less than 1.0 to 1.0 at the time
of the assumption. If EBITDARM coverage is less than 1.0 to 1.0 for a period of
three consecutive months following the assumption, then HRT shall have the right
to terminate the Emeritus subleases or management agreements and sublease to or
enter into a management agreement with a new qualified operator, acceptable to
HCN. HCN’s evaluation of the new qualified operator may include, but is not
limited to, an evaluation of the financial history and quality control issues,
whether the operator negatively impacts on concentration issues applicable to
HCN or other matters that impact on HCN’s capital market
activities.

 

In no
event shall HRT’s assumption of the Lease release Emeritus or any of its
affiliates from any liability or obligation under the Lease to HCN.

 

Notwithstanding
anything to the contrary herein, if HRT has the right to assume the Lease, but
an Insolvency Event has occurred, then HRT’s notice of the election to assume
the Lease must be provided to HCN in writing at least 15 days after receipt of
written notice of the Insolvency Event from HCN. Failure to so notify HCN shall
be deemed to be a waiver of the right to assume the Lease.

 

9. Standstill. Until
such time as all Landlord Obligations are Indefeasibly Satisfied, HRT will not
ask, demand, sue for, pursue, take, accept or receive from Emeritus any of the
Landlord Collateral, or pursue or prosecute any right or remedy which HRT may
have against any property included in the Landlord Collateral or as a secured
party or otherwise under the ML Leasehold Mortgage. Notwithstanding the
foregoing, HRT shall have the right to file an action against Emeritus under the
Note, but only to the extent permitted under §2 hereof.

 

10. Modification
of Lease.
Landlord shall have the right, without the consent of HRT, to amend the Lease,
provided that no amendment shall be permitted to create a term which terminates
prior to the Maturity Date, as defined in the 2nd A &R
Note, to materially alter the casualty or condemnation provisions in the Lease,
or to increase the rent payments without any increase in the investment by HCN.
HCN shall provide HRT with copies of all amendments to the Lease within five
days of execution.

 

11. Modification
of Loan Documents/Sale of Loan. HRT
shall not increase the amount of the Loan, increase the scheduled payments due
under the Loan or the maturity date of the Loan without the prior written
consent of HCN, which consent may be withheld in its reasonable discretion.
Notwithstanding anything above to the contrary, HCN consents to an additional
advance by HRT to Emeritus in the amount of One Million Eight Hundred Twenty Two
Thousand One Hundred Fifty-one Dollars ($1,822,151.00), plus all closing costs
incurred by Emeritus in connection with the sale of the Loan to HRT as evidenced
by the 2nd A&R
Note. HRT shall provide HCN with copies of all amendments to the Loan within
five days of execution. Additionally, HRT may not assign, transfer, pledge or
sell the Loan or any Loan Document without the prior written consent of HCN,
which consent may be withheld in HCN’s reasonable discretion.

 

12. Payments
Held in Trust. Until
such time as the Landlord Obligations are Indefeasibly Satisfied, if HRT
receives any proceeds that are included within the meaning of “Landlord
Collateral” or if HRT receives any payments contrary to the terms of this
Agreement, HRT agrees to segregate and hold such payment in trust for the
benefit of Landlord and agrees to immediately deliver the payment to Landlord in
precisely the same form received (but with the endorsement of HRT receiving the
same where necessary) for application on account of the Landlord Obligations,
and HRT agrees that until so delivered, the payment shall be held as the
property of Landlord.

 

13. Exchange
of Collateral. Subject
to the terms of this Agreement and without affecting the rights of Landlord
under this Agreement, HRT agrees and consents that any collateral for the
Landlord Obligations, in whole or in part, may be exchanged, sold or surrendered
by Landlord for other collateral as it may deem advisable, and that any balance
or balances of funds with Landlord at any time outstanding to the credit of
Emeritus may, from time to time, in whole or in part, be surrendered or released
by Landlord as it may deem advisable, subject, however, to the terms of the
Landlord Obligations, HRT’s subordinated security interest in the Landlord
Collateral and the terms of this Agreement.

 

14. Insolvency
Event. The
provisions of this Agreement shall continue in full force and effect
notwithstanding the occurrence of any Insolvency Event. Without limiting the
foregoing, following the commencement of an Insolvency Event involving Emeritus,
the provisions of this Agreement shall continue to govern the relative rights
and priorities of Landlord and HRT even if all or part of their respective liens
or security interests are subordinated, set aside, avoided, invalidated or
disallowed in connection with any such Insolvency Event.

 

15. Liquidation. In the
event of the liquidation or sale of the assets of Emeritus, by reason of
dissolution or bankruptcy, or by appointment of a receiver, or by other legal
proceeding, all amounts received by any person from the liquidation of the
Landlord Collateral shall first be paid to Landlord to be applied to the
Landlord Obligations.

 

16. Waivers. HRT
hereby waives any rights it may have under applicable law to assert the doctrine
of marshaling or to otherwise require Landlord to marshal any property of
Emeritus for the benefit of HRT. HRT also hereby waives, to the extent permitted
by applicable law, any rights which it may have to enjoin or otherwise obtain a
judicial or administrative order preventing Landlord from taking, or refraining
from taking, any action with respect to all or any part of the Landlord
Collateral. Without limiting the foregoing, HRT hereby agrees (a) that it has no
right to direct or object to the manner in which Landlord applies the proceeds
of the Landlord Collateral resulting from the exercise by Landlord of rights and
remedies under the Lease to the Landlord Obligations and (b) that Landlord has
not assumed any obligation to act as the agent for HRT with respect to the
Landlord Collateral. 

 

17. Subrogation. To the
extent HRT pays any of the Landlord Obligations, upon such obligation being
Indefeasibly Satisfied, HRT shall be subrogated to the fullest extent allowable
at law or equity to the claims under the Lease formerly held by HCN with respect
to such obligations and may enforce such claims against Emeritus to the fullest
extent allowed. To the extent HCN pays any of the HRT Debt, upon such obligation
being Indefeasibly Satisfied, HCN shall be subrogated to the fullest extent
allowable at law or equity to the claims under the Loan Documents formerly held
by HRT with respect to such obligations and may enforce such claims against
Emeritus to the fullest extent allowed. These rights of subrogation shall
survive the bankruptcy of Emeritus.

 

18. Amendments
in Writing. No
waiver shall be deemed to have been made by any party to this Agreement of any
of its rights under this Agreement unless the same shall be in writing and duly
signed by its duly authorized officers, and each waiver, if any, shall be a
waiver only with respect to the specific instance involved and shall in no way
impair the rights of any party to this Agreement in any other respect at any
time.

 

19. Binding
Effect. This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
and their respective successors and assigns, provided that each permitted assign
agrees to assume the obligations set forth herein.

 

20. Authority. HCN,
Tenant and HRT each represent and warrant that they have full authority to
execute this Agreement and that this Agreement is binding upon each of them in
accordance with its terms. Each person signing on behalf of a party to this
Agreement represents and warrants that he/she has full authority to execute this
Agreement on behalf of such party.

 

21. Enforceability. If any
provision of this Agreement or the application thereof shall be adjudged invalid
or unenforceable to any extent, the application of the remainder of the
provision, the application of the provision to other parties or circumstances,
and the application of the remainder of this Agreement shall not be affected.
Each provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.

 

22. Amendment. This
Agreement may not be amended except in a writing signed by HRT and Landlord. All
references to this Agreement, whether in this Agreement or any other document or
instrument, shall be deemed to incorporate all amendments, modifications,
renewals and extensions of this Agreement and all substitutions therefor made
after the date hereof.

 

23. Notices. Any
notice or other communication required or permitted under this Agreement shall
be in writing and personally delivered, mailed by registered or certified mail
(return receipt requested and postage prepaid), sent by facsimile (with a
confirming copy sent by regular mail), or sent by prepaid overnight courier
service, and addressed to the relevant party at its address set forth below, or
at such other address as such party may, by written notice, designate as its
address for purposes of such notice:

 

If to
HRT, at:  Healthcare
Realty Trust Incorporated

Attention:
John M. Bryant, Jr., 

Senior
Vice President and General Counsel

3310 West
End Avenue, Suite 700

Nashville,
TN 37201

Telephone:
615/269-8175

Telecopier:
615/463-7739




If to
Emeritus, at: Emeritus
Corporation

Attention:
William M. Shorten

3131
Elliott Avenue, Suite 500

Seattle,
WA 98121

Telephone:
800/429-4828

Telecopier:
206/301-4500




If to
Landlord, at: Heath
Care REIT, Inc.

Attention:
Erin C. Ibele, Vice President and Corporate Secretary

One
SeaGate, Suite 1500

P.O. Box
1475

Toledo,
OH 43603-1475

Telephone:
419/247-2800

Telecopier:
419/247-2826

 

If
mailed, notice shall be deemed to be given five days after being sent, and if
sent by personal delivery, telecopier or prepaid courier, notice shall be deemed
to be given when delivered.

 

24. HCN
as Agent. Each
Affiliate appoints HCN as the agent and lawful attorney in fact of such
Affiliate to act for such Affiliate for all purposes and actions of Affiliate
under this Agreement. All notices, consents, waivers and all other documents and
instruments executed by HCN pursuant to this Agreement from time to time and all
other actions of HCN as Landlord under the Lease Documents and under this
Agreement shall be binding upon such Affiliate. Each Affiliate is joining in
this Agreement to evidence this appointment of HCN as agent and lawful attorney
in fact of each Affiliate.

 

25. Miscellaneous. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Ohio, and shall be binding upon the undersigned and the respective
successors and assigns of the undersigned. The parties hereto hereby consent to
the jurisdiction of the state and federal courts located within the State of
Ohio and for any dispute arising out of this Agreement. There are no third party
beneficiaries to this Agreement. Each of the parties to this Agreement hereby
waives any right to have a jury participate in resolving any dispute, whether
sounding in contract, tort or otherwise arising out of, connected with, related
to or in connection with this Agreement. Instead, any dispute resolved in court
will be resolved in a bench trial without a jury. No finding of invalidity of
any provision of this Agreement shall affect the continuing validity of all
other provisions of this Agreement. This Agreement may be executed in one or
more counterparts, each of which for all purposes shall be deemed an original.
This Agreement shall not be construed against any party by reason of such party
having drafted this Agreement.

 

26. Permitted
Indebtedness. The
Loan and the Loan Documents as assigned to HRT and as subsequently amended,
restated or modified with HCN’s written consent shall not constitute any breach
or default under the Lease.

 

27. Personal
Property. In the
event HRT exercises its right in accordance with the terms of this Agreement to
assume the Lease, then HRT shall have the right to continue using all personal
property then located at the facility constituting Landlord Collateral so long
as HRT satisfies all obligations as tenant under the Lease.

 

28. Other
Agreements with Emeritus. The
parties hereto acknowledge that the terms of this Agreement shall be binding
only upon the rights and obligations of HCN, HRT and Emeritus arising under the
Master Lease and the Loan Documents and applicable only to the ML Leased
Properties. To the extent that HCN or HRT have other agreements with Emeritus
which are not related to the ML Leased Properties, those agreements shall not be
limited by the terms hereof.

 

IN
WITNESS WHEREOF, the parties have executed or caused this Agreement to be
executed as an instrument under seal by their respective officers, thereunto
duly authorized, as of the day and year first above written.




HRT:




HEALTHCARE
REALTY TRUST INCORPORATED, a
Maryland corporation






By:
/s/
John M. Brant, Jr.

Name:
John M. Bryant, Jr.

Title:
Senior Vice President and General C

Counsel







HCN:




HEALTH
CARE REIT, INC., a
Delaware corporation







By:
/s/
Erin C. Ibele

Name:
Erin C. Ibele

Title:
Vice President and Corporate Secretary




 

APPROVED
AND CONSENTED TO: EMERITUS:




EMERITUS
CORPORATION, a
Washington corporation







By:
/s
William M. Shorten

Name:
William M. Shorten

Title:
Director of Real Estate Finance




 




 










 

1092317.5























 

JOINDER
AGREEMENT

 

The
undersigned Affiliates are signing this Joinder Agreement for the purpose of
evidencing their agreement to the Appointment of Health Care REIT, Inc. to act
as their agent and attorney in fact as set forth in this Intercreditor
Agreement.




HCRI
MISSISSIPPI PROPERTIES, INC.




By:
/s/
Erin C. Ibele




Title:
Vice President and Corporate Secretary




HCRI
MASSACHUSETTS PROPERTIES TRUST II




By: HCRI
Massachusetts Properties, Inc., as Trustee, and not individually, and subject to
the provisions of the Declaration of HCRI Massachusetts Properties Trust II
filed with the Secretary of the Commonwealth of Massachusetts and the City Clerk
of Boston




By:
/s/
Erin C. Ibele




Title:
Vice President and Corporate Secretary







HCRI
TEXAS PROPERTIES, LTD.




By: Health
Care REIT, Inc., General Partner



By:
/s/
Erin C. Ibele




Title:
Vice President and Corporate Secretary




 

 










 

1092317.5























 

EXHIBIT
A: LIST OF MASTER LEASE FACILITIES





	
      Facility
      Name

      Licensed
      Operator
	
      Street
      Address

      County
	
      Facility
      Type (per license)

      Beds/Units

	
      Loyalton
      at Rancho Solano

       

      (“Fairfield
      Facility”)Fairfield 

       

      Retirement
      Center, LLC
	
      3350
      Cherry Hills Street

      Fairfield,
      CA 94533

      County:
      Solano
	
      Residential
      Care Facility for the Elderly

      250
      licensed beds

      172
      units

	
      Creston
      Village

       

      (“Paso
      Robles Facility”)

       

      Emeritus
      Corporation
	
      1919
      Creston Road

      Paso
      Robles, CA 93446

      County:
      San Louis Obispo
	
      Residential
      Care Facility for the Elderly/Dementia

      115
      licensed beds

      100
      units

	
      Canterbury
      Ridge

       

      (“Urbana
      Facility”)

       

      Emeritus
      Corporation
	
      1706
      East Amber Lane

      Urbana,
      IL 61802

      County:
      Champaign
	
      Retirement

      89
      units

	
      Loyalton
      of Hattiesburg

       

      (“Hattiesburg
      Facility”)

       

      Emeritus
      Corporation
	
      103
      Fox Chase Street

      Hattiesburg,
      MS 39402

      County:
      Forrest
	
      Institution
      for the Aged or Infirmed

      83
      licensed beds

      82
      units

	
      Loyalton
      of Flagstaff

       

      (“Flagstaff
      Facility”)

       

      Emeritus
      Corporation
	
      2100
      N. Woodlands Village Blvd.

      Flagstaff,
      AZ 86001

      County:
      Coconino
	
      Assisted
      Living

      67
      licensed beds

      61
      units

	
      Loyalton
      of Phoenix

       

      (“Phoenix
      Facility”)

       

      Emeritus
      Corporation
	
      4050
      Bluefield Ave.

      Phoenix,
      AZ 85032

      County:
      Maricopa
	
      Assisted
      Living

      101
      licensed beds

      101
      units

	
      Park
      Club of Brandon

       

      (“Brandon
      Facility”)

       

      Emeritus
      Corporation
	
      700
      S. Kings Ave.

      Brandon,
      FL 33511

      County:
      Hillsborough
	
      Assisted
      Living

      100
      licensed beds

      89
      units

	
      Park
      Club of Fort Myers

       

      (“Fort
      Myers Facility”)

       

      Emeritus
      Corporation
	
      1896
      Park Meadows Dr.

      Fort
      Myers, FL 33907

      County:
      Lee
	
      Assisted
      Living

      116
      beds

      74
      units

	
      Park
      Club of Oakbridge

       

      (“Lakeland
      Facility”)

       

      Emeritus
      Corporation
	
      3110
      Oakbridge Blvd. East

      Lakeland,
      FL 33803

      County:
      Polk
	
      Assisted
      Living

      110
      licensed beds

      87
      units

	
      Colonial
      Park Club

       

      (“Sarasota
      Facility”)

       

      Emeritus
      Corporation
	
      4730
      Bee Ridge Rd.

      Sarasota,
      FL 34231

      County:
      Sarasota
	
      Assisted
      Living

      110
      licensed beds

      86
      units

	
      Ridgewind

       

      (“Chubbuck
      Facility”)

       

      Emeritus
      Corporation
	
      4080
      Hawthorne Rd.

      Chubbuck,
      ID 83202

      County:
      Bannock
	
      Assisted
      Living

      109
      licensed beds

      79
      units

	
      Loyalton
      of Coeur D’Alene

       

      (“Coeur
      D’Alene Facility”)

       

      Emeritus
      Corporation
	
      205
      E. Anton

      Coeur
      D’Alene, ID 83815

      County:
      Kootenai
	
      Assisted
      Living

      96
      licensed beds

      50
      units

	
      Highland
      Hills

       

      Pocatello
      Facility”)

       

      Emeritus
      Corporation
	
      1501
      Baldy

      Pocatello,
      ID 83201

      County:
      Bannock
	
      Assisted
      Living

      57
      licensed beds

      47
      units

	
      Loyalton
      of Hagerstown

       

      “Hagerstown
      Facility”)

       

      Emeritus
      Corporation
	
      20009
      Rosebank Way

      Hagerstown,
      MD 

      21742County:
      Washington
	
      Assisted
      Living

      110
      licensed beds

      100
      units

	
      Pines
      of Tewksbury

       

      “Tewksbury
      Facility”)

       

      Emeritus
      Corporation
	
      2580
      Main St.

      Tewksbury,
      MA 01876

      County:
      Middlesex
	
      Assisted
      Living

      69
      licensed beds

      49
      units

	
      Loyalton
      of Lakewood

       

      “Lakewood
      Facility”)

       

      Emeritus
      Corporation
	
      220
      Southwestern Dr.

      Lakewood,
      NY 14750

      County:
      Chautauqua
	
      Enriched
      Housing Program

      100
      licensed beds

      78
      units

	
      Meadowbrook

       

      (“Ontario
      Facility”)

       

      Emeritus
      Corporation
	
      1372
      Southwest 8th Ave.

      Ontario,
      OR 97914

      County:
      Malheur
	
      Assisted
      Living

      82
      beds

      53
      units

	
      Anderson
      Place

       

      (“Anderson
      Facility”)

       

      Emeritus
      Corporation
	
      311
      Simpson Rd.

      Anderson,
      SC 29621

      County:
      Anderson
	
      Assisted
      Living and Nursing Home

      84
      beds

      127
      units

      75
      independent cottages

	
      Elmbrook
      Estates

       

      (“Lubbock
      Facility”)

       

      Texas-ESC-Lubbock,
      L.P.
	
      5301
      66th
      St.

      Lubbock,
      TX 79424

      County:
      Lubbock
	
      Assisted
      Living

      100
      licensed beds

      80
      units

	
      Loyalton
      of Staunton

       

      (“Staunton
      Facility”)

       

      Emeritus
      Corporation
	
      1900
      Hillsmere Lane

      Staunton,
      VA 24401

      County:
      Augusta
	
      Assisted
      Living

      144
      licensed beds

      101
      units

	
      Fairhaven
      Estates

       

      (“Bellingham
      Facility”)

       

      Emeritus
      Corporation
	
      2600
      Old Fairhaven Pkwy.

      Bellingham,
      WA 98225

      County:
      Whatcom
	
      Boarding
      Home

      60
      licensed beds

      50
      units

	
      Evergreen
      Lodge

       

      (“Federal
      Way Facility”)

       

      Emeritus
      Corporation
	
      31002
      14th Avenue South

      Federal
      Way, WA 98003

      County:
      King
	
      Boarding
      Home

      105
      beds

      98
      units

	
      Hearthstone
      Inn

       

      (“Moses
      Lake Facility”)

       

      Emeritus
      Corporation
	
      905
      S. Pioneer Way

      Moses
      Lake, WA 98837

      County:
      Grant
	
      Boarding
      Home

      92
      licensed beds

      83
      units