NINTH AMENDMENT TO MASTER LEASE AND SECURITY AGREEMENT

1. Recitals.  The foregoing recitals are adopted by Lessor and Lessee as true and correct and, by this reference, are incorporated herein as if set forth herein in full.

2. Elizabethtown.

(a) Lessee’s Representations and Warranties.  Lessee hereby represents and warrants to Lessor that, with respect to the Elizabethtown Addition, Lessee has delivered to Lessor the materials and documentation required pursuant to Section 3(a) of the Seventh Amendment and that, to Lessee’s knowledge, (i) all such materials and documentation were true, correct and complete at the time delivered and (ii) there have been no changes affecting any such materials or documentation or any information disclosed thereby, that would interfere with or materially adversely affect the consummation of the transactions contemplated hereby, that have not been previously disclosed by Lessee to Lessor in writing.

(b) Additional Property. The Master Lease is hereby amended to modify the “Land” to add the Elizabethtown Addition to the Elizabethtown Property (the consolidated parcel hereinafter being referred to as the “Elizabethtown Consolidated Property”). Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, as part of the Leased Property, all of Lessor’s right, title and interest in and to the Elizabethtown Consolidated Property, including any improvements currently and to be located thereon, subject to all of the terms, conditions and provisions of the Master Lease (specifically including, but not limited to, Sections 7.1 and 23.1 and Article XXXVII thereof) as it is hereby, and may be hereafter, amended, supplemented, restated or otherwise modified.

3. Construction of Arden Courts of Old Orchard Facility.

(a) Construction.  Lessee shall construct the Arden Courts of Old Orchard Facility in accordance with the requirements for Capital Additions set forth in the Master Lease, including, without limitation, the requirements of Article X thereof, and the terms of this Amendment.  Lessee shall be responsible to arrange, supervise, coordinate and carry out all services necessary for the construction of the Arden Courts of Old Orchard Facility and Lessee hereby undertakes and accepts such responsibility.  Notwithstanding anything to the contrary contained in the Master Lease, Lessor hereby reserves the right to select a project manager before the commencement of construction to oversee construction of the Arden Courts of Old Orchard Facility, with the reasonable approval of Lessee, at Lessee’s sole cost and expense.    In addition to the requirements set forth in the Master Lease for construction of Capital Additions, prior to the commencement of construction of the Arden Courts of Old Orchard Facility, Lessee shall (i) provide Lessor with a copy of the budget showing a detailed cost breakdown of the construction costs for the Arden Courts of Old Orchard Facility, and (ii) at its sole cost and expense conduct and complete its due diligence with respect to the suitability of the Arden Land for construction of the Arden Courts of Old Orchard Facility,  Lessee’s ability to obtain all necessary permits, licenses and approvals for construction of the Arden Courts of Old Orchard Facility, and any other reasonable due diligence

as Lessee may determine necessary in connection with construction of the Arden Courts of Old Orchard Facility.  Upon Lessee’s commencement of construction of the Arden Courts of Old Orchard Facility, all such due diligence shall be deemed waived by Lessee and Lessee shall be deemed to have accepted the Arden Land “as-is” and “with-all-faults” for all purposes.    Additionally, Lessor has approved the general contractor, architect and engineers selected by Lessee in connection with the design, construction and or performance of the Arden Courts of Old Orchard Facility.    

(b) Failure to Construct.  Without limiting any other right or remedy of Lessor under the Master Lease, if for any reason after Lessee commences construction of the Arden Courts of Old Orchard Facility, Lessee abandons construction of the Arden Courts of Old Orchard Facility or fails to complete construction of the Arden Courts of Old Orchard Facility within eighteen  (18)  months of commencement of construction substantially in accordance with the terms of the Master Lease and this Amendment, at Lessor’s option, Lessor shall have the right to complete construction of the Arden Courts of Old Orchard Facility in accordance with the approved plans and specifications and expend such sums as Lessor reasonably deems proper in order so to complete construction of the Arden Courts of Old Orchard Facility. The amount of any and all expenditures made by Lessor pursuant to this clause (b) shall be immediately due and payable by Lessee to Lessor as an Additional Charge, together with interest thereon from the date of such expenditure to the date paid by Lessee at the Overdue Rate (but in no event greater than the maximum rate of interest then permitted by law).  Said interest shall accrue on a daily basis.  Upon any assumption by Lessor of the obligation to complete construction of the Arden Courts of Old Orchard Facility as provided herein, Lessee shall forthwith surrender and deliver to Lessor, or Lessor’s designee, all records, plans, specifications, permits and other governmental approvals, purchase agreements, contracts, receipts for deposits, unpaid bills and all other records, papers and documents in the possession of Lessee relating to the construction of the Arden Courts of Old Orchard Facility. 

(c) Costs and Expenses.  Unless expressly provided otherwise herein, Lessee shall pay all costs and expenses relating to the construction of the Arden Courts of Old Orchard Facility, including, without limitation, all costs and expenses relating to (i) its due diligence performed under Section 3(a) hereof or otherwise in connection with the construction of the Arden Courts of Old Orchard Facility, or determining the feasibility thereof, (ii) all Capital Addition Costs in connection with the Arden Courts of Old Orchard Facility, (iii) the planning, designing and construction of the Arden Courts of Old Orchard Facility, (iv) acquiring and maintaining any permits, licenses and approvals necessary in connection with the construction and operation of the Arden Courts of Old Orchard Facility and (v) Lessor’s review of the plans and specifications and other documents and materials relating to the construction of the Arden Courts of Old Orchard Facility as set forth herein.

(d) Indemnification.  Without in any way limiting any other indemnification obligation of Lessee under the Master Lease, and notwithstanding the existence and without regard to the policy limits of any insurance required to be maintained or the amount of any bond required pursuant to the Master Lease, Lessee shall protect, defend, indemnify and hold harmless Lessor from and against, and reimburse Lessor for, any and all actions, causes of action, obligations, damages, penalties, suits, debts, losses, costs, expenses, liabilities, claims or demands whatsoever, at law or in equity (including reasonable attorneys’ fees, expenses and disbursements and Environmental Costs) imposed on, incurred by or asserted against Lessor in connection with or with respect to the construction or the performance of the construction of the Arden Courts of Old Orchard Facility and any permanent loss in value of or title to the Old Orchard Facility resulting therefrom, including arising from:

(i) any misstatements or inaccuracies made by or on behalf of Lessee contained within or other matters arising out of any applications for building, foundation, grading or other permits, licenses and/or authorizations necessary for the construction of the Arden Courts of Old Orchard Facility, including those

required for the use and operation of the New Arden Court Facility for its Primary Intended Use, whether filed or submitted to the applicable Governmental Authority in the name of Lessor or Lessee;  and/or

(ii) any act or omission of Lessee, the architect, the engineer, the general contractor, or any other contractor, subcontractor or supplier of materials or other Person in connection with the construction of the Arden Courts of Old Orchard Facility,  occurring prior to the closing of the Purchase Transaction or the Closing Date,  each as defined in Section 4(a) hereof.

4. Purchase of Arden Courts of Old Orchard Facility.

(a) The Purchase Transaction.  Notwithstanding anything to the contrary contained in the Master Lease, including, without limitation, Section 6.3 thereof, on or before the 360th day following “Substantial Completion” (as hereinafter defined) of construction of the Arden Courts of Old Orchard Facility,  Lessee will sell the Arden Courts of Old Orchard Facility to Lessor and Lessor will purchase the Arden Courts of Old Orchard Facility from Lessee (the “Purchase Transaction”).   Lessee will determine the specific date of the closing of the Purchase Transaction (the “Closing Date”), which shall be within such 360 day period following Substantial Completion, by providing at least thirty (30) days prior written notice to Lessor within three hundred (300) days after Substantial Completion.  If Lessee does not provide such written notice to Lessor within three hundred (300)  days after Substantial Completion, then Lessor shall have the right to determine the Closing Date, which shall be within such 360 day period following Substantial Completion, by providing written notice to Lessee.  As used herein, “Substantial Completion” means the date on which Lessor has received from Lessee an Officer's Certificate stating the following:  (i) Lessee has received a  copy of the certificate of occupancy for the Arden Courts of Old Orchard Facility from the applicable Governmental Authority;  (ii)  Lessee has received copies of all necessary permits, approvals, healthcare licenses and Medicare certifications necessary for the operation of the Arden Courts of Old Orchard Facility;  (iii)  Lessee has received copies of lien releases from all parties that provided labor or materials for construction of the Arden Courts of Old Orchard Facility;  (iv)   the Arden Courts of Old Orchard Facility has commenced regular business operations; and (v)  construction of the Arden Courts of Old Orchard Facility has been substantially completed in accordance with the plans and specifications and the applicable provisions of this Amendment and the Master Lease, except for punch-list items that remain to be completed.    

(b) The purchase price for the Purchase Transaction shall be Fifteen Million Dollars ($15,000,000.00) (the “Purchase Price”) and shall be payable by Lessor to Lessee on the Closing Date.  For the avoidance of doubt, the Purchase Transaction remains subject to the remaining terms of Section 6.3 of the Master Lease that are not in conflict with the terms of Section 4(a) hereof or this Section 4(b), including, without limitation, that on the Closing Date Lessee shall transfer the Arden Courts of Old Orchard Facility to Lessor free of any encumbrance (including, without limitation, any liens or claims for liens for material supplied and for labor or services performed in connection with the construction of the Arden Courts of Old Orchard Facility)  and Lessee shall execute all documents and take any actions reasonably necessary to evidence the transfer of such ownership and discharge any encumbrance thereon.  Additionally, on or before the Closing Date, Lessee shall supply or cause to be supplied to Lessor all documents and information pertaining to the construction of the Arden Courts of Old Orchard Facility as Lessor shall reasonably request (including, without limitation, any and all plans and specifications and all building, foundation, grading or other permits and/or authorizations necessary for the construction of the Arden Courts of Old Orchard Facility, and copies of the certificate of occupancy for the Arden Courts of Old Orchard Facility, copies of all necessary permits, approvals, healthcare licenses and Medicare certifications necessary for the operation of the Arden Courts of Old Orchard Facility)  and Lessee shall also assign to Lessor each construction contract to which Lessee is a party and all guaranties and warranties relating thereto.

(c) Amendments to Master Lease on Closing Date.  

(i) Upon the closing of the Purchase Transaction on the Closing Date, the Master Lease is hereby automatically amended to add the following definitions to Section 2.1 thereof:

(1) Arden Courts of Old Orchard Facility:  As defined in the Ninth Amendment to this Lease.

(2) Arden Courts of Old Orchard Facility Lease Year:    Each period of twelve (12) full calendar months from and after the “Closing Date” (as defined in the Ninth Amendment to this Lease), unless such date is a day other than April 1, in which case the first Arden Courts of Old Orchard Facility Lease Year shall be the period commencing on the Closing Date and ending on March 31 immediately following the Closing Date, and each subsequent Arden Courts of Old Orchard Facility Lease Year shall be each period of twelve (12) full calendar months after the last day of the prior Lease Year.

(3) Ninth Amendment to this Lease:  That certain Ninth Amendment to Master Lease and Security Agreement, dated September 30, 2014, between Lessor and Lessee.

(ii) Upon the closing of the Purchase Transaction on the Closing Date, the Master Lease is hereby automatically amended to add the Arden Courts of Old Orchard Facility to Exhibit A-3 of the Master Lease as a “Pool 3 Facility” with the following information:

(1) Facility:  Arden Courts of Old Orchard,  ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, as such may be amended by written notice to the Lessor;

(2) Facility Owner/Lessor:  HCP Properties, LP;

(3) Facility Description and Primary Intended Use:  Assisted living facility consisting of 64 beds;

(4) Initial Monthly Allocated Minimum Rent: Shall be equal to the Purchase Price multiplied by:

(a) the greater of 6.50% and the rate of a 10-year Treasury note as of the Closing Date plus 350 basis points, if the Closing Date occurs on or before the 180th day following Substantial Completion;

(b) the greater of 6.50% and the rate of a 10-year Treasury note as of the Closing Date plus 375 basis points, if the Closing Date occurs on the 181st through 270th day following Substantial Completion; or

(c) the greater of 6.50% and the rate of a 10-year Treasury note as of the Closing Date plus 400 basis points, if the Closing Date occurs on the 271st through 360th day following Substantial Completion;

(5) Allocated Initial Investment: $15,000,000.00;

(6) Fixed Term:  16 years;

(7) Extended Term:  19 years;

(8) HCP ID:  2235.

(iii) Upon the closing of the Purchase Transaction on the Closing Date, all terms and conditions applicable to the Facilities under the Master Lease shall be applicable to the Arden Courts of Old Orchard Facility except: 

(1) The terms of Section 1(d) of Exhibit D attached to the Master Lease shall not apply to the Arden Courts of Old Orchard Facility for the first Extended Term, if any (and the Arden Courts of Old Orchard Facility shall not be subject to any Fair Market Rental adjustment for such first Extended Term, if any).  

(2) Exhibit D attached to the Master Lease is hereby automatically amended to add the following as a new paragraph (f) to the end of Section 1 thereof:  “(f)  Notwithstanding the foregoing paragraphs (b) and (c) above, for the Arden Courts of Old Orchard Facility, the Allocated Minimum Rent for such Facility shall be adjusted as follows:  (i) if the Closing Date is on a day other than April 1, for the period from the Closing Date through the immediately following March 31, current monthly Allocated Minimum Rent for the Arden Courts of Old Orchard Facility shall not be increased; (ii) for the first (1st) full Arden Courts of Old Orchard Facility Lease Year commencing as of April 1 on or following the Closing Date, current monthly Allocated Minimum Rent for the Arden Courts of Old Orchard Facility shall not be increased; (iii) commencing upon the expiration of the first (1st) full Arden Courts of Old Orchard Facility Lease Year, the then current monthly Allocated Minimum Rent for such Facility shall be increased by an amount equal to (A) three percent (3%), multiplied by (B) the fraction equal to (I) 12 plus the number of months in clause (i) above, divided by (II) 12 (for example, if the Closing Date occurs on September 1, the current Monthly Allocated Minimum Rent for the Arden Courts of Old Orchard Facility shall be increased by the product of ninetieth-twelfths (19/12) and three percent (3.0%)); (iv) commencing upon the expiration of each of the second (2nd) through fourth (4th) full Arden Courts of Old Orchard Facility Lease Years, the then current monthly Allocated Minimum Rent for such Facility shall be increased by three and one-half percent (3.50%); and (v) thereafter, the then current monthly Allocated Minimum Rent shall be increased in the same manner as the Allocated Minimum Rent for the other Pool 3 Facilities is increased (in accordance with the foregoing paragraphs (b) and (c) above, as applicable).”

(3) The Per Bed Minimum and Annual Minimum Capital Project Amount requirements shall not apply to the Arden Courts of Old Orchard Facility for the first (1st) twelve (12) calendar months following the Closing Date.

5. Costs and Expenses.  Lessee shall promptly pay all costs and expenses, including, without limitation, Lessor’s reasonable attorneys’ fees, expenses and disbursements, relating to this Amendment and the closing of the Purchase Transaction as set forth in Section 4 hereof.

6. Further Assurances. The parties agree to promptly sign all documents reasonably requested to give effect to the provisions of this Amendment.

7. Effect of Amendment.  All references in the Master Lease to the “Master Lease” shall be deemed to be references to the Master Lease as amended hereby.

8. Full Force and Effect; Acknowledgement.   In the event of any inconsistencies between the terms of this Amendment and the terms of the Master Lease, the terms of this Amendment shall govern and control. 

Except as provided for herein, all other terms and conditions of the Master Lease shall remain unchanged and continue in full force and effect and the parties hereby reaffirm the terms and conditions of the Master Lease.

9. Counterparts; Facsimile or Electronically Transmitted Signatures. This Amendment may be executed in any number of counterparts, all of which shall constitute one and the same instrument.  Signatures transmitted by facsimile or other electronic means may be used in place of original signatures on this Amendment, and Lessor and Lessee both intend to be bound by the signatures on the document transmitted by facsimile or such other electronic means.