UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549  
FORM 10-Q
☒  QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
 
For the quarterly period ended September 30, 2017  
or
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
 
Commission File Number 1-16817
FIVE STAR SENIOR LIVING INC.
(Exact Name of Registrant as Specified in Its Charter)
 
 
Maryland
04-3516029
(State or Other Jurisdiction of Incorporation or Organization)
(IRS Employer Identification No.)
400 Centre Street, Newton, Massachusetts 02458
(Address of Principal Executive Offices) (Zip Code) 

(Registrant’s Telephone Number, Including Area Code): 617-796-8387
 
Indicate by check mark whether the registrant:  (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.     
Yes  ☒ No  ☐

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).     
Yes  ☒ No  ☐

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company.  See the definitions of “large accelerated filer,” “accelerated filer”, “smaller reporting company” and "emerging growth company" in Rule 12b-2 of the Exchange Act.  (Check one):  
 
 
Large accelerated filer ☐
Accelerated filer ☐
Non-accelerated filer ☐
Smaller reporting company ☒
(Do not check if a smaller reporting company)
Emerging growth company ☐
 
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.☐

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act)
Yes  ☐ No  ☒
 
Number of registrant’s shares of common stock, $.01 par value, outstanding as of November 8, 2017 :   50,049,312 .  
 
 
 
 
 




FIVE STAR SENIOR LIVING INC.
FORM 10-Q
SEPTEMBER 30, 2017
INDEX
 
Page
 
 
 
 
 
 
 
 
References in this Quarterly Report on Form 10-Q to the Company, Five Star, we, us or our include Five Star Senior Living Inc. and its consolidated subsidiaries unless otherwise expressly stated or the context indicates   otherwise .





PART I.   Financial Information
Item 1.  Condensed Consolidated Financial Statements

FIVE STAR SENIOR LIVING INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(in thousands, except share data)
(unaudited)
 
 
September 30, 2017
 
December 31, 2016
ASSETS
 
 
 
 
Current assets:
 
 
 
 
Cash and cash equivalents
 
$
8,706

 
$
16,608

Accounts receivable, net of allowance of $4,693 and $3,191 at September 30, 2017 and December 31, 2016, respectively
 
37,489

 
38,324

Due from related persons
 
8,149

 
17,010

Investments in available for sale securities, of which $12,340 and $9,659 are restricted at September 30, 2017 and December 31, 2016, respectively
 
24,307

 
24,081

Restricted cash
 
19,776

 
15,059

Prepaid expenses and other current assets
 
25,829

 
17,295

Assets of discontinued operations
 

 
1,010

Total current assets
 
124,256

 
129,387

 
 
 
 
 
Property and equipment, net
 
346,845

 
351,929

Equity investment of an investee
 
7,945

 
7,116

Restricted cash
 
1,316

 
1,909

Restricted investments in available for sale securities
 
12,220

 
16,589

Other long term assets
 
4,474

 
2,804

Total assets
 
$
497,056

 
$
509,734

 
 
 
 
 
LIABILITIES AND SHAREHOLDERS’ EQUITY
 
 
 
 
Current liabilities:
 
 
 
 
Revolving credit facility
 
$
5,000

 
$

Accounts payable and accrued expenses
 
73,866

 
68,453

Accrued compensation and benefits
 
44,552

 
35,939

Due to related persons
 
18,600

 
18,378

Mortgage notes payable
 
1,329

 
1,903

Accrued real estate taxes
 
17,170

 
12,784

Security deposits and current portion of continuing care contracts
 
4,492

 
5,099

Other current liabilities
 
37,747

 
30,430

Liabilities of discontinued operations
 

 
7

Total current liabilities
 
202,756

 
172,993

 
 
 
 
 
Long term liabilities:
 
 
 
 
Mortgage notes payable
 
44,269

 
58,494

Accrued self insurance obligations
 
32,138

 
36,637

Deferred gain on sale and leaseback transaction with Senior Housing Properties Trust
 
67,739

 
72,695

Other long term liabilities
 
4,551

 
4,649

Total long term liabilities
 
148,697

 
172,475

 
 
 
 
 
Commitments and contingencies
 

 

 
 
 
 
 
Shareholders’ equity:
 
 
 
 
Common stock, par value $.01: 75,000,000 shares authorized, 50,049,312 and 49,995,932 shares issued and outstanding at September 30, 2017 and December 31, 2016, respectively
 
500

 
500

Additional paid in capital
 
360,637

 
359,853

Accumulated deficit
 
(219,417
)
 
(199,521
)
Accumulated other comprehensive income
 
3,883

 
3,434

Total shareholders’ equity
 
145,603

 
164,266

 
 
$
497,056

 
$
509,734

See accompanying notes.

1


FIVE STAR SENIOR LIVING INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per share data)
(unaudited)


 
 
Three Months Ended September 30,
 
Nine Months Ended September 30,
 
 
2017
 
2016
 
2017
 
2016
Revenues:
 
 
 
 
 
 
 
 
Senior living revenue
 
$
279,654

 
$
279,276

 
$
842,938

 
$
842,278

Management fee revenue
 
3,414

 
3,336

 
10,531

 
8,955

Reimbursed costs incurred on behalf of managed communities
 
64,033

 
62,099

 
194,346

 
180,623

Total revenues
 
347,101

 
344,711

 
1,047,815

 
1,031,856

 
 
 
 
 
 
 
 
 
Operating expenses:
 
 
 
 
 
 
 
 
Senior living wages and benefits
 
138,235

 
139,056

 
413,137

 
414,641

Other senior living operating expenses
 
71,238

 
70,890

 
219,119

 
212,565

Costs incurred on behalf of managed communities
 
64,033

 
62,099

 
194,346

 
180,623

Rent expense
 
51,779

 
50,625

 
154,524

 
150,837

General and administrative expenses
 
17,851

 
18,542

 
56,733

 
54,218

Depreciation and amortization expense
 
9,753

 
9,398

 
29,040

 
28,847

Long lived asset impairment
 
142

 
196

 
528

 
502

Total operating expenses
 
353,031

 
350,806

 
1,067,427

 
1,042,233

 
 
 
 
 
 
 
 
 
Operating loss
 
(5,930
)
 
(6,095
)
 
(19,612
)
 
(10,377
)
 
 
 
 
 
 
 
 
 
Interest, dividend and other income
 
167

 
237

 
559

 
766

Interest and other expense
 
(1,139
)
 
(945
)
 
(3,200
)
 
(3,957
)
Gain on early extinguishment of debt
 
143

 

 
143

 

Gain on sale of available for sale securities reclassified from accumulated other comprehensive income, net of tax
 
70

 
12

 
351

 
247

 
 
 
 
 
 
 
 
 
Loss from continuing operations before income taxes and equity in earnings of an investee
 
(6,689
)
 
(6,791
)
 
(21,759
)
 
(13,321
)
Benefit (provision) for income taxes
 
55

 
934

 
1,330

 
(2,841
)
Equity in earnings of an investee, net of tax
 
31

 
13

 
533

 
107

Loss from continuing operations
 
(6,603
)
 
(5,844
)
 
(19,896
)
 
(16,055
)
Loss from discontinued operations
 

 
(53
)
 

 
(131
)
 
 
 
 
 
 
 
 
 
Net loss
 
$
(6,603
)
 
$
(5,897
)
 
$
(19,896
)
 
$
(16,186
)
 
 
 
 
 
 
 
 
 
Weighted average shares outstanding—basic and diluted
 
49,242

 
48,846

 
49,199

 
48,817

 
 
 
 
 
 
 
 
 
Basic and diluted loss per share from:
 
 

 
 

 
 

 
 

Continuing operations
 
$
(0.13
)
 
$
(0.12
)
 
$
(0.40
)
 
$
(0.33
)
Discontinued operations
 

 

 

 

Net loss per share—basic and diluted
 
$
(0.13
)
 
$
(0.12
)
 
$
(0.40
)
 
$
(0.33
)
 
See accompanying notes.


2


FIVE STAR SENIOR LIVING INC.
CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE LOSS
(in thousands)
(unaudited)


 
Three Months Ended September 30,
 
Nine Months Ended September 30,
 
2017
 
2016
 
2017
 
2016
 
 
 
 
 
 
 
 
Net loss
$
(6,603
)
 
$
(5,897
)
 
$
(19,896
)
 
$
(16,186
)
Other comprehensive income:
 

 
 

 
 

 
 

Unrealized gain on investments in available for sale securities, net of tax
145

 
321

 
504

 
1,147

Equity in unrealized gain of an investee, net of tax
116

 
80

 
296

 
175

Realized gain on investments in available for sale securities reclassified and included in net loss, net of tax
(70
)
 
(12
)
 
(351
)
 
(247
)
Other comprehensive income
191

 
389

 
449

 
1,075

Comprehensive loss
$
(6,412
)
 
$
(5,508
)
 
$
(19,447
)
 
$
(15,111
)
See accompanying notes.


3


FIVE STAR SENIOR LIVING INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
(unaudited)


 
 
Nine Months Ended September 30,
 
 
2017
 
2016
Cash flows from operating activities:
 
 
 
 
Net loss
 
$
(19,896
)
 
$
(16,186
)
Adjustments to reconcile net loss to cash provided by (used in) operating activities:
 
 
 
 
Depreciation and amortization expense
 
29,040

 
28,847

Gain on early extinguishment of debt
 
(298
)
 

Loss from discontinued operations
 

 
131

Gain on sale of available for sale securities reclassified from accumulated other comprehensive income, net of tax
 
(351
)
 
(247
)
Loss on disposal of property and equipment
 
202

 
70

Long lived asset impairment
 
528

 
502

Equity in earnings of an investee, net of tax
 
(533
)
 
(107
)
Stock based compensation
 
784

 
749

Provision for losses on receivables
 
3,632

 
2,598

Amortization of deferred gain on sale and leaseback transaction with Senior Housing Properties Trust
 
(4,956
)
 
(1,688
)
Other noncash expense (income) adjustments, net
 
325

 
(375
)
Changes in assets and liabilities:
 
 
 
 

Accounts receivable
 
(2,797
)
 
(2,809
)
Prepaid expenses and other assets
 
(8,853
)
 
(2,314
)
Accounts payable and accrued expenses
 
3,821

 
(22,297
)
Accrued compensation and benefits
 
8,613

 
8,641

Due from related persons, net
 
9,131

 
222

Other current and long term liabilities
 
6,642

 
(2,716
)
Cash provided by (used in) operating activities
 
25,034

 
(6,979
)
 
 
 
 
 
Cash flows from investing activities:
 
 
 
 
Increase in restricted cash and investment accounts, net
 
(4,124
)
 
(6,833
)
Acquisition of property and equipment
 
(55,049
)
 
(40,825
)
Purchases of available for sale securities
 
(10,895
)
 
(6,780
)
Proceeds from sale of property and equipment to Senior Housing Properties Trust
 
30,698

 
15,180

Proceeds from sale of land to Senior Housing Properties Trust
 
750

 

Proceeds from sale and leaseback transaction with Senior Housing Properties Trust
 

 
112,350

Proceeds from sale of available for sale securities
 
15,681

 
13,508

Cash (used in) provided by investing activities
 
(22,939
)
 
86,600

 
 
 
 
 
Cash flows from financing activities:
 
 
 
 
Proceeds from borrowings on revolving credit facility
 
40,000

 
25,000

Repayments of borrowings on revolving credit facility
 
(35,000
)
 
(75,000
)
Repayments of mortgage notes payable
 
(14,111
)
 
(934
)
Payment of deferred financing fees
 
(1,889
)
 
(300
)
Cash used in financing activities
 
(11,000
)
 
(51,234
)
 
 
 
 
 
Cash flows from discontinued operations:
 
 
 
 
Net cash provided by operating activities
 
1,003

 
130

Net cash used in investing activities
 

 
(15
)
Net cash flows provided by discontinued operations
 
1,003

 
115

 
 
 
 
 
Change in cash and cash equivalents
 
(7,902
)
 
28,502

Cash and cash equivalents at beginning of period
 
16,608

 
14,672

Cash and cash equivalents at end of period
 
$
8,706

 
$
43,174

 
 
 
 
 
Supplemental cash flow information:
 
 
 
 
Cash paid for interest
 
$
2,913

 
$
3,920

Cash paid for income taxes, net
 
$
275

 
$
2,657

See accompanying notes.

4


FIVE STAR SENIOR LIVING INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(dollar amounts in thousands, except per share amounts)
(unaudited)



Note 1.  Basis of Presentation and Organization
General
Effective March 3, 2017, we changed our name from "Five Star Quality Care, Inc." to "Five Star Senior Living Inc." The accompanying condensed consolidated financial statements of Five Star Senior Living Inc. and its subsidiaries, or we, us or our, are unaudited.  Certain information and disclosures required by U.S. generally accepted accounting principles, or GAAP, for complete financial statements have been condensed or omitted.  We believe the disclosures made are adequate to make the information presented not misleading.  However, the accompanying financial statements should be read in conjunction with the financial statements and notes contained in our Annual Report on Form 10-K for the year ended December 31, 2016 , or our Annual Report.  In the opinion of our management, all adjustments, which include only normal recurring adjustments, considered necessary for a fair presentation have been included.  All intercompany transactions and balances with or among our consolidated subsidiaries have been eliminated.  Our operating results for interim periods are not necessarily indicative of the results that may be expected for the full year. Certain reclassifications have been made to the prior years’ condensed consolidated financial statements to conform to the current year’s presentation.
We operate senior living communities, including independent living communities, assisted living communities and skilled nursing facilities, or SNFs.  As of September 30, 2017 , we operated 283   senior living communities located in 32 states with 31,812 living units, including 253 primarily independent and assisted living communities with 29,210 living units and 30 SNFs with 2,602 living units.  As of September 30, 2017 , we owned and operated 26 communities ( 2,703 living units), we leased and operated 189 communities ( 20,302 living units) and we managed 68 communities ( 8,807 living units).  Our 283 senior living communities, as of September 30, 2017 , included 10,765 independent living apartments, 16,167 assisted living suites and 4,880 SNF units. The foregoing numbers exclude living units categorized as out of service.  
Segment Information
We have two operating segments: (i) senior living communities and (ii) rehabilitation and wellness. In the senior living communities segment, we operate for our own account or manage for the account of others independent living communities, assisted living communities and SNFs that are subject to centralized oversight and provide housing and services to elderly residents. In the rehabilitation and wellness operating segment, we provide services in the inpatient setting and in outpatient clinics. We have determined that our two operating segments meet the aggregation criteria as prescribed under Financial Accounting Standards Board, or FASB, Accounting Standards Codification TM , or ASC, Topic 280, Segment Reporting , and we have therefore determined that our business is comprised of one reportable segment, senior living. All of our operations and assets are located in the United States, except for the operations of our Cayman Islands organized captive insurance company subsidiary, which participates in our workers’ compensation and professional and general liability insurance programs.

Note 2. Recent Accounting Pronouncements

On January 1, 2017, we adopted FASB Accounting Standards Update, or ASU, No. 2016-09, Compensation-Stock Compensation (Topic 718) , which identifies areas for simplification involving several aspects of accounting for share based payment transactions, including the income tax consequences, classification of awards as either equity or liabilities, an option to recognize gross stock compensation expense with actual forfeitures recognized as they occur, as well as certain classifications on the statement of cash flows. This ASU requires prospective recognition of excess tax benefits and deficiencies resulting from share based compensation award vesting and exercises be recognized in our consolidated statements of operations. Previously, these amounts were recognized in additional paid in capital, and were not material to our consolidated financial statements. Excess tax benefits from share based compensation awards will continue to be reported as an operating activity, and cash paid on employees’ behalf related to shares withheld for tax purposes will continue to be classified as a financing activity, in the statement of cash flows. In addition, forfeitures will be recognized as they occur as permitted by this ASU. The implementation of this ASU did not have a material impact on our consolidated financial statements.

In January 2016, the FASB issued ASU No. 2016-01, Recognition and Measurement of Financial Assets and Financial Liabilities, which changes how entities measure certain equity investments and present changes in the fair value of financial liabilities measured under the fair value option that are attributable to their own credit. This ASU is effective for interim and annual periods beginning after December 15, 2017, with early adoption permitted subject to certain conditions. Currently, changes in fair value of these investments are recorded through other comprehensive income. Under this ASU, these changes will be recorded through earnings. We are currently assessing this ASU, but we expect the implementation of this ASU will affect how we record changes in fair value of the available for sale securities that we hold.

5


FIVE STAR SENIOR LIVING INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(dollar amounts in thousands, except per share amounts)
(unaudited)



In February 2016, the FASB issued ASU No. 2016-02, Leases (Topic 842) , which sets out the principles for the recognition, measurement, presentation and disclosure of leases for both parties to a contract (i.e., lessees and lessors). ASU No. 2016-02 requires lessees to apply a dual approach, classifying leases as either finance or operating leases based on the principle of whether or not the lease is effectively a financed purchase of the leased asset by the lessee. This classification will determine whether the lease expense is recognized based on an effective interest method or on a straight line basis over the term of the lease. A lessee is also required to record a right of use asset and a lease liability for all leases with a term of greater than 12 months regardless of their classification. Leases with a term of 12 months or less will be accounted for similar to existing guidance for operating leases today. This ASU requires lessors to account for leases using an approach that is substantially equivalent to existing guidance for sales type leases, direct financing leases and operating leases. ASU No. 2016-02 is effective for reporting periods beginning after December 15, 2018, with early adoption permitted. While we are continuing to assess the impact adopting this ASU may have on our consolidated financial statements, we believe the adoption of this ASU will have a material impact on our consolidated balance sheets due to the recognition of the lease rights and obligations as assets and liabilities. While the adoption will have no effect on the cash rent we pay, we expect amounts within our statements of operations and comprehensive (loss) income to change materially.
 
In May 2014, the FASB issued ASU No. 2014-09, Revenue from Contracts with Customers (Topic 606) , which outlines a comprehensive model for entities to use in accounting for revenue arising from contracts with customers.  This ASU clarifies the principles for recognizing revenue by, among other things, removing inconsistencies in revenue requirements, improving comparability of revenue recognition practices across entities and industries and providing improved disclosure requirements. In July 2015, the FASB approved a one year deferral of the effective date for this ASU to interim and annual reporting periods beginning after December 15, 2017, with early adoption permitted. In March 2016, the FASB issued ASU No. 2016-08, Revenue from Contracts with Customers (Topic 606): Principal versus Agent Considerations (Reporting Revenue Gross versus Net), which clarifies how an entity should identify the unit of accounting for the principal versus agent evaluation and how it should apply the control principle to certain types of arrangements, such as service transactions. Additionally, real estate sales are within the scope of ASU 2014-09, as amended by ASU 2017-05, Other Income - Gains and Losses from the Derecognition of Nonfinancial Assets . Under the new ASUs, the income recognition for real estate sales is largely based on the transfer of control versus continuing involvement under the current guidance. As a result, more transactions may qualify as sales of real estate and gains or losses may be recognized sooner. These ASUs may be applied retrospectively to each prior period (full retrospective) or retrospectively with the cumulative effect recognized as of the date of initial application (modified retrospective). We will adopt these ASUs as required effective January 1, 2018 and currently expect to apply the modified retrospective approach. While we are continuing to assess the impact adopting these ASUs (and related clarifying guidance issued by the FASB) will have on our consolidated financial statements, we believe its adoption will not have a material impact on the timing of our revenue recognition. We do expect the adoption will result in expanded disclosures related to the nature, amount, timing and uncertainty of revenue and cash flows arising from our contracts with customers that are included in the scope of these ASUs. A substantial portion of our revenue relates to contracts with residents that are generally short term in nature and fall under ASC Topic 840, Leases , which are specifically excluded from the scope of ASU No. 2014-09. Our contracts with residents and other customers that are included in the scope of these ASUs are also generally short term in nature and revenue is recognized when services are provided. Upon the adoption of these ASUs, we anticipate being required to separately disclose the components of our senior living revenue between lease revenue accounted for under the existing lease guidance and service revenue accounted for under the new ASUs, including non-lease components, such as certain services embedded in our base leasing fees. As we complete our evaluation of these ASUs, new information may arise that could change our current understanding of the impact to revenue recognized. Additionally, we will continue to monitor industry activities and any additional guidance provided by regulators, standards setters and the accounting profession and will adjust our assessment and implementation plans accordingly.
 
In June 2016, the FASB issued ASU No. 2016-13, Financial Instruments-Credit Losses (Topic 326) , which requires a financial asset or a group of financial assets measured at amortized cost basis, to be presented at the net amount expected to be collected. This ASU eliminates the probable initial recognition threshold and instead reflects an entity’s current estimate of all expected credit losses. In addition, this ASU amends the current available for sale security other-than-temporary impairment model for debt securities. The length of time that the fair value of an available for sale debt security has been below the amortized cost will no longer impact the determination of whether a credit loss exists and credit losses will now be limited to the difference between a security’s amortized cost basis and its fair value. This ASU is effective for reporting periods beginning after December 15, 2019. We are currently assessing the potential impact the adoption of this ASU will have on our consolidated financial statements.


6


FIVE STAR SENIOR LIVING INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(dollar amounts in thousands, except per share amounts)
(unaudited)


In August 2016, the FASB issued ASU No. 2016-15, Statement of Cash Flows (Topic 230): Classification of Certain Cash Receipts and Cash Payments , which clarifies how companies present and classify certain cash receipts and cash payments in the statement of cash flows. ASU No. 2016-15 is effective for reporting periods beginning after December 15, 2017. We are currently assessing the potential impact the adoption of this ASU will have on our consolidated financial statements.

In November 2016, the FASB issued ASU No. 2016-18, Statement of Cash Flows (Topic 230): Restricted Cash , which requires that the reconciliation of the beginning-of-period and end-of-period amounts shown in the statement of cash flows include restricted cash and restricted cash equivalents. In the event restricted cash is presented separately from cash and cash equivalents on the balance sheet, companies will be required to reconcile the amounts presented on the statement of cash flows to the amounts on the balance sheet and disclose information about the nature of the restrictions. ASU No. 2016-18 is effective for reporting periods beginning after December 15, 2017. Upon the adoption of ASU No. 2016-18, we will reconcile both cash and cash equivalents and restricted cash and restricted cash equivalents, whereas under the current guidance we explain the changes during the period for cash and cash equivalents only.

In January 2017, the FASB issued ASU No. 2017-01,  Business Combinations (Topic 805) , which clarifies the definition of a business to assist entities with evaluating whether transactions should be accounted for as acquisitions (or disposals) of assets or of businesses. The amendments in this ASU provide a screen to determine when an acquired set of activities is not a business. The screen requires that when substantially all of the fair value of the gross assets acquired (or disposed of) is concentrated in a single identifiable asset or a group of similar identifiable assets, the assets are not a business. This ASU is effective for reporting periods beginning after December 15, 2017, with early adoption permitted. We are currently assessing the impact adopting this ASU will have on our consolidated financial statements, but we expect that most future acquisitions, if completed with terms similar to historical transactions, will be treated as acquisitions of assets rather than as business combinations, as substantially all of the fair value of the assets we typically acquire is concentrated in real estate. In an acquisition of assets, certain acquisition costs are capitalized as opposed to expensed under business combination guidance.

In March 2017, the FASB issued ASU No. 2017-08, Receivables-Nonrefundable Fees and Other Costs (Subtopic 310-20) , which shortens the amortization period for certain callable debt securities held at a premium. Specifically, this ASU requires the premium to be amortized to the earliest call date. This ASU does not require an accounting change for securities held at a discount; the discount continues to be amortized to maturity. This ASU is effective for reporting periods beginning after December 15, 2018, with early adoption permitted. We are currently assessing the potential impact the adoption of this ASU will have on our consolidated financial statements.

In May 2017, the FASB issued ASU No. 2017-09, Compensation-Stock Compensation (Topic 718) , which provides additional guidance on which changes to the terms and conditions of a share-based payment award require an entity to apply modification accounting. This ASU is effective for reporting periods beginning after December 15, 2017. We are continuing to evaluate ASU No. 2017-09; however, we do not expect its adoption to have a material impact on our condensed consolidated financial statements.

Note 3. Property and Equipment

Property and equipment consists of the following:
 
 
September 30, 2017
 
December 31, 2016
Land
 
$
21,499

 
$
22,261

Buildings and improvements
 
306,848

 
304,044

Furniture, fixtures and equipment
 
211,543

 
193,286

Property and equipment, at cost
 
539,890

 
519,591

Accumulated depreciation
 
(193,045
)
 
(167,662
)
Property and equipment, net
 
$
346,845

 
$
351,929

 
We recorded depreciation expense relating to our property and equipment of $ 9,732 and $ 9,147 for the three months ended September 30, 2017 and 2016 , respectively, and $ 28,863 and $ 27,290 for the nine months ended September 30, 2017 and 2016 , respectively.
 

7


FIVE STAR SENIOR LIVING INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(dollar amounts in thousands, except per share amounts)
(unaudited)


We review the carrying value of long lived assets for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. If there is an indication that the carrying value of an asset is not recoverable, we determine the amount of impairment loss, if any, by comparing the historical carrying value of the asset to its estimated fair value. We determine estimated fair value based on input from market participants, our experience selling and buying similar assets, market conditions and internally developed cash flow models that our assets or asset groups are expected to generate, and we consider these estimates to be a Level 3 fair value measurement. As a result of our long lived assets impairment review, we recorded $142 and $196 of impairment charges to certain of our long lived assets in continuing operations for the three months ended September 30, 2017 and 2016 , respectively, and $528 and $502 for the nine months ended September 30, 2017 and 2016 , respectively.
 
As of September 30, 2017 , we had $2,583 of assets related to our leased senior living communities included in our property and equipment that we expect to request Senior Housing Properties Trust, or, together with its subsidiaries, SNH, to purchase from us for an increase in future rent; however, SNH is not obligated to purchase such amounts. See Note 10 for further information regarding our leases and other arrangements with SNH.

Note 4. Accumulated Other Comprehensive Income

The following table details the changes in accumulated other comprehensive income, net of tax, for the nine months ended September 30, 2017 :
 
 
Equity
Investment of an
Investee
 
Investments in
Available for Sale
Securities
 
Accumulated
Other
Comprehensive
Income
Balance at January 1, 2017
 
$
182

 
$
3,252

 
$
3,434

Unrealized gain on investments, net of tax
 

 
504

 
504

Equity in unrealized gain of an investee, net of tax
 
296

 

 
296

Reclassification adjustment:
 
 
 
 
 
 
Realized gain on investments, net of tax
 

 
(351
)
 
(351
)
Balance at September 30, 2017
 
$
478

 
$
3,405

 
$
3,883

 
Accumulated other comprehensive income represents the unrealized gains and losses of our investments, net of tax, and our share of other comprehensive income of Affiliates Insurance Company, or AIC. See Note 12 for further information regarding our arrangements with AIC.

Note 5.  Income Taxes

We recognized a benefit for income taxes from continuing operations of $55 and $1,330 for the three and nine months ended September 30, 2017, respectively. We recognized a benefit for income taxes from continuing operations of $934 for the three months ended September 30, 2016 and a provision for income taxes from continuing operations of  $2,841 for the nine months ended September 30, 2016. The benefit for income taxes from continuing operations for the three months ended September 30, 2017 is due primarily to intra-period tax allocation benefits related to the unrealized gains on our available for sale securities, and the benefit for income taxes for the nine months ended September 30, 2017 is due primarily to monetizing alternative minimum tax credits in the second quarter of 2017. The benefit for income taxes for the three months ended September 30, 2016 is due primarily to a reduction of previously accrued estimated state tax expense resulting from the June 2016 sale and leaseback transaction, and the provision for income taxes for the nine months ended September 30, 2016 is due primarily to the June 2016 sale and leaseback transaction. We did not recognize any income tax expense or benefit from our discontinued operations in the three or nine months ended September 30, 2017 or 2016.

We previously determined it was more likely than not that our net deferred tax assets would not be realized and concluded that a full valuation allowance was required, which eliminated the amount of our net deferred tax assets recorded in our consolidated balance sheets.  In the future, if we believe that we will more likely than not realize the benefit of these deferred tax assets, we will adjust our valuation allowance and recognize an income tax benefit, which may affect our results of operations.


8


FIVE STAR SENIOR LIVING INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(dollar amounts in thousands, except per share amounts)
(unaudited)


Note 6.  Earnings Per Share

We calculated basic earnings per common share, or EPS, for the three and nine months ended September 30, 2017 and 2016 using the weighted average number of shares of our common stock, $.01 par value per share, or our common shares, outstanding during the periods.  When applicable, diluted EPS reflects the more dilutive earnings per common share amount calculated using the two class method or the treasury stock method. The three months ended September 30, 2017 and 2016 had 1,053,305 and 821,180 , respectively, and the nine months ended September 30, 2017 and 2016 had 1,031,793 and 898,009 , respectively, of potentially dilutive restricted unvested common shares that were not included in the calculation of diluted EPS because to do so would have been antidilutive. 

Note 7.  Fair Values of Assets and Liabilities

Our assets recorded at fair value have been categorized based upon a fair value hierarchy in accordance with FASB ASC Topic 820, Fair Value Measurements and Disclosures . We apply the following fair value hierarchy, which prioritizes the inputs used to measure fair value into three levels.
 
Level 1 inputs are quoted prices (unadjusted) in active markets for identical assets or liabilities that we have the ability to access at the measurement date.
 
Level 2 inputs are inputs other than quoted prices included within Level 1 that are observable for the asset or liability, either directly or indirectly. Level 2 inputs include quoted prices for similar assets and liabilities in active markets and quoted prices in inactive markets.
 
Level 3 inputs are unobservable inputs for the asset or liability in which there is little, if any, market activity for the asset or liability at the measurement date.


9


FIVE STAR SENIOR LIVING INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(dollar amounts in thousands, except per share amounts)
(unaudited)


Recurring Fair Value Measures

The tables below present the assets measured at fair value at September 30, 2017 and December 31, 2016 categorized by the level of inputs used in the valuation of each asset.
 
 
As of September 30, 2017
 
 
 
 
Quoted Prices in
Active Markets
for Identical
 Assets
 
Significant 
Other
Observable
 Inputs
 
Significant
Unobservable 
Inputs
Description
 
Total
 
(Level 1)
 
(Level 2)
 
(Level 3)
Cash equivalents (1)
 
$
21,902

 
$
21,902

 
$

 
$

Available for sale securities: (2)
 
 
 
 
 
 
 
 
Equity securities
 
 
 
 
 
 
 
 
Financial services industry
 
2,244

 
2,244

 

 

REIT industry
 
146

 
146

 

 

Other
 
3,945

 
3,945

 

 

Total equity securities
 
6,335

 
6,335

 

 

Debt securities
 
 
 
 
 
 
 
 
International bond fund (3)
 
2,512

 

 
2,512

 

High yield fund (4)
 
2,719

 

 
2,719

 

Industrial bonds
 
3,436

 

 
3,436

 

Technology bonds
 
2,803

 

 
2,803

 

Government bonds
 
11,914

 
11,292

 
622

 

Energy bonds
 
1,543

 

 
1,543

 

Financial bonds
 
1,445

 

 
1,445

 

Other
 
3,820

 

 
3,820

 

Total debt securities
 
30,192

 
11,292

 
18,900

 

Total available for sale securities
 
36,527

 
17,627

 
18,900

 

Total
 
$
58,429

 
$
39,529

 
$
18,900

 
$

 

10


FIVE STAR SENIOR LIVING INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(dollar amounts in thousands, except per share amounts)
(unaudited)


 
 
As of December 31, 2016
 
 
 
 
Quoted Prices in
Active Markets
for Identical
Assets
 
Significant 
Other
Observable
Inputs
 
Significant
  Unobservable
Inputs
Description
 
Total
 
(Level 1)
 
(Level 2)
 
(Level 3)
Cash equivalents (1)
 
17,702

 
17,702

 
 
 
 
Available for sale securities: (2)
 
 
 
 
 
 
 
 
Equity securities
 
 
 
 
 
 
 
 
Financial services industry
 
2,149

 
2,149

 

 

REIT industry
 
393

 
393

 

 

Other
 
3,901

 
3,901

 

 

Total equity securities
 
6,443

 
6,443

 

 

Debt securities
 
 
 
 
 
 
 
 
International bond fund (3)
 
2,452

 

 
2,452

 

High yield fund (4)
 
2,587

 

 
2,587

 

Industrial bonds
 
5,394

 

 
5,394

 

Technology bonds
 
4,956

 

 
4,956

 

Government bonds
 
10,403

 
6,326

 
4,077

 

Energy bonds
 
2,360

 

 
2,360

 

Financial bonds
 
1,754

 

 
1,754

 

Other
 
4,321

 

 
4,321

 

Total debt securities
 
34,227

 
6,326

 
27,901

 

Total available for sale securities
 
40,670

 
12,769

 
27,901

 

Total
 
$
58,372

 
$
30,471

 
$
27,901

 
$

 
 
(1)
Cash equivalents consist of short term, highly liquid investments and money market funds held principally for obligations arising from our self insurance programs. Cash equivalents are reported in our condensed consolidated balance sheets as cash and cash equivalents and current and long term restricted cash.  Cash equivalents include $ 19,091 and $ 14,638 of balances that are restricted at September 30, 2017 and December 31, 2016 , respectively.
 
(2)
As of September 30, 2017 , our investments in available for sale securities had a fair value of $ 36,527 with an amortized cost of $ 34,060 ; the difference between the fair value and amortized cost amounts resulted from unrealized gains of $ 2,608 , net of unrealized losses of $ 141 . As of December 31, 2016 , our investments in available for sale securities had a fair value of $ 40,670 with an amortized cost of $ 38,537 ; the difference between the fair value and amortized cost amounts resulted from unrealized gains of $ 2,430 , net of unrealized losses of $ 297 . At September 30, 2017 , 32 of the securities we hold, with a fair value of $ 9,288 , have been in a loss position for less than 12 months and eight of the securities we hold, with a fair value of $ 2,032 , have been in a loss position for greater than 12 months . We do not believe these securities are impaired primarily because they have not been in a loss position for an extended period of time, the financial conditions of the issuers of these securities remain strong with solid fundamentals, or we intend to hold these securities until recovery, and other factors that support our conclusion that the loss is temporary. During the nine months ended September 30, 2017 and 2016 , we received gross proceeds of $ 15,681 and $ 13,508 , respectively, in connection with the sales of available for sale securities and recorded gross realized gains totaling $ 528 and $ 423 , respectively, and gross realized losses totaling $ 177 and $ 176 , respectively. We record gains and losses on the sales of our available for sale securities using the specific identification method.

(3)
The investment strategy of this fund is to invest principally in fixed income securities issued by non-U.S. issuers. The fund invests in such securities or investment vehicles as it considers appropriate to achieve the fund’s investment objective, which is to provide an above average rate of total return while attempting to limit investment risk by investing in a diversified portfolio of U.S. dollar investment grade fixed income securities. There are no unfunded commitments and the investment can be redeemed weekly.
 
(4)
The investment strategy of this fund is to invest principally in fixed income securities. The fund invests in such securities or investment vehicles as it considers appropriate to achieve the fund’s investment objective, which is to provide an above average rate of total return while attempting to limit investment risk by investing in a diversified portfolio of primarily fixed income securities issued by companies with below investment grade ratings. There are no unfunded commitments and the investment can be redeemed weekly.
 
During the nine months ended September 30, 2017 , we did not change the type of inputs used to determine the fair value of any of our assets and liabilities that we measure at fair value.  Accordingly, there were no transfers of assets or liabilities between levels of the fair value hierarchy during the nine months ended September 30, 2017 .
 
The carrying value of accounts receivable and accounts payable approximates fair value as of September 30, 2017 and December 31, 2016 .  The carrying value and fair value of our mortgage notes payable were $ 45,598 and $ 49,941 , respectively, as of September 30, 2017 and $ 60,397 and $ 64,905 , respectively, as of December 31, 2016 , and are categorized in Level 3 of

11


FIVE STAR SENIOR LIVING INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(dollar amounts in thousands, except per share amounts)
(unaudited)


the fair value hierarchy in their entirety.  We estimate the fair values of our mortgage notes payable by using discounted cash flow analyses and currently prevailing market terms as of the measurement date. 

Non-Recurring Fair Value Measures
 
We review the carrying value of our long lived assets, including our property and equipment and other intangible assets for impairment whenever events or changes in circumstances indicate that the carrying value of an asset or asset group may not be recoverable. See Note 3 for further information regarding fair value measurements related to impairments of our long lived assets we recorded in continuing operations.

The fair value of assets held for sale is determined based on the use of appraisals, input from market participants, our experience selling similar assets and/or internally developed cash flow models, all of which are considered to be Level 3 fair value measurements. We recorded long lived asset impairment charges of $112 for the nine months ended September 30, 2016 to reduce the carrying value of an assisted living community we classified as held for sale and in discontinued operations to its estimated fair value less costs to sell.
 
Note 8.  Indebtedness

We previously had a $100,000 secured revolving credit facility, or our prior credit facility, which was scheduled to mature in April 2017. In February 2017, we replaced our prior credit facility with our current $100,000 secured revolving credit facility, or our credit facility, with terms substantially similar to those of our prior credit facility. We paid fees of $1,889 in connection with the closing of our credit facility, which fees were deferred and will be amortized over the initial term of our credit facility. Our credit facility is available for general business purposes, including acquisitions, provides for issuance of letters of credit and matures in February 2020. Subject to our payment of extension fees and meeting other conditions, we have options to extend the stated maturity date of our credit facility for two , one year periods. We are required to pay interest at the rate based on, at our option, LIBOR or a base rate, plus a premium, or 3.73% and 5.75% , respectively, per annum as of September 30, 2017 , on outstanding borrowings under our credit facility. We are also required to pay a quarterly commitment fee of 0.35% per annum on the unused part of the available borrowings under our credit facility. We can borrow, repay and re-borrow funds available until maturity, and no principal repayment is due until maturity. The weighted average annual interest rate for borrowings under our credit facility was 5.61% for the nine months ended September 30, 2017 . We had no borrowings outstanding under our prior credit facility during the nine months ended September 30, 2017. As of September 30, 2017 , we had letters of credit issued under our credit facility in an aggregate amount of $2,724 and $92,276 available for borrowing under our credit facility. We incurred aggregate interest expense and other associated costs related to our credit facilities of $358 and $ 144 for the three months ended September 30, 2017 and 2016 , respectively, and $848 and $1,476 for the nine months ended September 30, 2017 and 2016 , respectively.

Certain of our subsidiaries guarantee our obligations under our credit facility, which is secured by real estate mortgages on 10 senior living communities with a combined 1,219 living units owned by our guarantor subsidiaries and our guarantor subsidiaries’ accounts receivable and related collateral. The amount of available borrowings under our credit facility is subject to our having qualified collateral, which is primarily based on the value of the communities securing our obligations under our credit facility. Accordingly, the maximum availability of borrowings under our credit facility at any time may be less than $100,000 . Our credit facility provides for acceleration of payment of all amounts outstanding under our credit facility upon the occurrence and continuation of certain events of default, including a change of control of us, as defined.  The agreement that governs our credit facility contains a number of financial and other covenants, including covenants that restrict our ability to incur indebtedness or to pay dividends or make other distributions to our stockholders in certain circumstances, and requires us to maintain financial ratios and a minimum net worth.

We also previously had a $ 25,000 secured revolving line of credit that matured on March 18, 2016, that we did not extend or replace. We had no borrowings outstanding under this line of credit during the nine months ended September 30, 2016 . We incurred associated costs of $ 0 and $ 45 related to this line of credit for the three and nine months ended September 30, 2016 , respectively.
 
In September 2017, we entered a new letter of credit for $1,500 under our credit facility which is used as security for our purchasing cards we utilize at certain senior living communities we operate. This letter of credit matures in October 2018. In June 2017, we increased our so-called “step up” letter of credit, which is used as security for our workers’ compensation insurance program and is collateralized by approximately $16,725 in cash equivalents and $2,618 in debt securities, from

12


FIVE STAR SENIOR LIVING INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(dollar amounts in thousands, except per share amounts)
(unaudited)


$11,700 to $17,800 . This letter of credit matures in June 2018 when we expect to be required to renew it and the required amount to be adjusted.  We are required to increase the cash collateral under this letter of credit quarterly so that the stated amount of $17,800 is met by March 2018.  At September 30, 2017, the cash equivalent collateral is classified as short term restricted cash, which amount includes accumulated interest, and the debt securities collateral is classified as short term investments in available for sale securities, in our condensed consolidated balance sheet. At September 30, 2017, we had six other irrevocable standby letters of credit outstanding, totaling $1,224 , which secure certain of our other obligations; these letters of credit currently mature between April 2018 and September 2018 and are required to be renewed annually. Our obligations under these letters of credit are issued under our credit facility.

At September 30, 2017 , five of our senior living communities were encumbered by mortgages with a carrying value of $ 45,598 : (i) one community was encumbered by a Federal National Mortgage Association, or FNMA, mortgage; (ii) two of our communities were encumbered by Federal Home Loan Mortgage Corporation, or FMCC, mortgages; and (iii) two of our communities were encumbered by a mortgage from a commercial lender.  These mortgages contain standard mortgage covenants.  We recorded mortgage discounts or premiums in connection with the assumption of certain of these mortgage debts as part of our acquisitions of the encumbered communities in order to record the assumed mortgage debts at their respective estimated fair value. We are amortizing the mortgage discounts or premiums as an increase or reduction of interest expense until the maturity of the respective mortgage debt.  The weighted average annual interest rate on these mortgage debts was 6.20% as of September 30, 2017 . Payments of principal and interest are due monthly under these mortgage debts until their respective maturities at varying dates ranging from October 2022 to September 2032.  We incurred mortgage interest expense, net of discount or premium amortization, of $ 781 and $ 806 for the three months ended September 30, 2017 and 2016 , respectively, and $ 2,352 and $ 2,425 for the nine months ended September 30, 2017 and 2016 , respectively. Our mortgage debts require monthly payments into escrows for taxes, insurance and property replacement funds; certain withdrawals from escrows for our FNMA and FMCC mortgages require applicable FNMA and FMCC approval.
In September 2017, we prepaid one of our FNMA mortgage notes that had a principal balance of $13,105 and required interest at the contracted rate of 6.47% per annum. In connection with this prepayment, we recorded a gain of $143 on early extinguishment of debt, net of unamortized premiums and a prepayment penalty equal to 1% of the principal prepaid.

As of September 30, 2017 , we believe we were in compliance with all applicable covenants under our credit facility and mortgage debts.
 
Note 9. Off Balance Sheet Arrangements

Certain of our assets, related to our operation of 17 communities we lease from SNH, were pledged as collateral for SNH’s borrowings from its lender, FNMA. On April 28, 2017, SNH prepaid those borrowings and, as a result, our assets are no longer pledged as collateral. As of September 30, 2017 , we had no off balance sheet arrangements that have had or that we expect would be reasonably likely to have a future material effect on our financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources.

Note 10. Leases and Management Agreements with SNH
    
Senior Living Communities Leased from SNH . We are SNH’s largest tenant and SNH is our largest landlord. As of September 30, 2017 and 2016 , we leased 185 and 183 senior living communities from SNH, respectively. We lease senior living communities from SNH pursuant to five leases with SNH. Our total annual rent payable to SNH as of September 30, 2017 and 2016 was $206,297  and $ 202,253 , respectively, excluding percentage rent based on increases in gross revenues at certain communities. Our total rent expense under all of our leases with SNH, net of lease inducement amortization and the amortization of the deferred gain associated with the sale and leaseback transaction with SNH in June 2016 described below, was $51,056 and $49,904 for the three months ended September 30, 2017 and 2016 , respectively, and $152,358 and $148,675 for the nine months ended September 30, 2017 and 2016 , respectively, which amounts included estimated percentage rent of $1,353 and $1,364 for the three months ended September 30, 2017 and 2016 , respectively, and $4,190 and $4,219 for the nine months ended September 30, 2017 and 2016 , respectively. As of September 30, 2017 and December 31, 2016, we had outstanding rent due and payable to SNH of $18,473 and $18,338 , respectively, which are included in due to related persons in our condensed consolidated balance sheets.

Pursuant to the terms of our leases with SNH, for the nine months ended September 30, 2017 and 2016 , we sold to SNH $30,698 and $ 15,180 , respectively, of improvements to communities leased from SNH. As a result, the annual rent payable by

13


FIVE STAR SENIOR LIVING INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(dollar amounts in thousands, except per share amounts)
(unaudited)


us to SNH increased by approximately $2,464 and $1,219 , respectively. As of September 30, 2017 , our property and equipment included $2,583 for similar improvements to communities leased from SNH that we expect to request SNH to purchase from us for an increase in future rent; however, SNH is not obligated to purchase these improvements.

In August 2017, we sold to SNH a land parcel adjacent to a senior living community located in Delaware that we lease from SNH for $750 , excluding closing costs. This land parcel was added to the applicable lease and our annual rent payable to SNH increased by $33 in accordance with the terms of that lease.

During the quarter ended June 30, 2017, we and SNH agreed to amend the applicable lease for certain construction, expansion and development projects at two senior living communities we lease from SNH. If and when we request SNH to purchase improvements related to these specific projects from us, our annual rent payable to SNH will increase by an amount equal to the interest rate then applicable to SNH’s borrowings under its revolving credit facility plus 2% per annum of the amount SNH purchased. This amount of increased rent will apply until 12 months after a certificate of occupancy is issued with respect to the project; thereafter, our annual rent payable to SNH will be revised to equal the amount determined pursuant to the capital improvement formula specified in the applicable lease.

On June 29, 2016, we sold seven senior living communities to SNH for an aggregate purchase price of $112,350 and SNH simultaneously leased these communities back to us under a new long term lease agreement. Under the new lease, we are required to pay SNH initial annual rent of $8,426 , plus percentage rent beginning in 2018.

In accordance with FASB ASC Topic 840, Leases , the June 2016 sale and leaseback transaction qualifies for sale-leaseback accounting. Accordingly, the gain generated from the sale of $82,644 was deferred and is being amortized as a reduction of rent expense over the initial term of the lease. As of September 30, 2017 and December 31, 2016, the short term part of the deferred gain of $6,609 is included in other current liabilities and the long term part of the deferred gain is included separately in our condensed consolidated balance sheets. We incurred transaction costs of $750 in connection with the sale of the senior living communities to SNH, which amount was expensed in full during the three months ended June 30, 2016.

Senior Living Communities Managed for the Account of SNH and its Related Entities . As of September 30, 2017 and 2016 , we managed 68 and 63 senior living communities, respectively, for the account of SNH. We earned management fees of $3,199 and $3,005 from the senior living communities we managed for the account of SNH for the three months ended September 30, 2017 and 2016 , respectively, and $9,708 and $8,495 for the nine months ended September 30, 2017 and 2016 , respectively. In addition, we earned fees for our supervision of capital expenditure projects at the communities we managed for the account of SNH of $128 and $266 for the three months ended September 30, 2017 and 2016, respectively, and $628 and $266 for the nine months ended September 30, 2017 and 2016, respectively. These amounts are included in management fee revenue in our condensed consolidated statement of operations for those periods.
In addition to management services, we also provide certain other services to residents at some of the senior living communities we manage for SNH, such as rehabilitation services. At senior living communities we manage for the account of SNH where we provide rehabilitation services on an outpatient basis, the residents, third party payers or government programs pay us for those rehabilitation services. At senior living communities we manage for the account of SNH where we provide both inpatient and outpatient rehabilitation services, SNH generally pays us for these services and charges for such services are included in amounts charged to residents, third party payers or government programs. We earned revenues of $1,884 and $1,866 for the three months ended September 30, 2017 and 2016, respectively, and $5,713 and $5,755 for the nine months ended September 30, 2017 and 2016, respectively, for rehabilitation services we provided at senior living communities we manage for the account of SNH and that are payable by SNH. These amounts are included in senior living revenue in our condensed consolidated statement of operations for those periods.
In November 2017, we entered a transaction agreement with SNH pursuant to which we agreed to sell six senior living communities we own to SNH. We will enter management and pooling agreements with SNH as we sell these communities to manage these senior living communities. The aggregate sales price for these six senior living communities is approximately $104,000 , including, as of September 30, 2017, $2,413 of mortgage debt that will be prepaid at closing with proceeds from the sale and SNH's assumption of approximately $33,696 of mortgage debt securing certain of these senior living communities and excluding closing costs. These sales are subject to conditions, including SNH’s assumption of certain applicable mortgage debt and receipt of any applicable regulatory approvals. We expect to complete these sales as third party approvals are received between now and the end of the first quarter of 2018; however, the conditions to our sales of these senior living communities may not be met and some or all of these sales and related management and pooling arrangements may not occur, may be delayed or the terms may change.


14


FIVE STAR SENIOR LIVING INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(dollar amounts in thousands, except per share amounts)
(unaudited)


The management agreements we and SNH will enter in connection with our sales of these senior living communities will be combined pursuant to two new pooling agreements to be entered between us and SNH. The first new pooling agreement will combine the management agreements for five of these senior living communities. Pursuant to the terms of the management and pooling agreements to be entered for these five senior living communities, SNH will pay us a management fee equal to 5% of the gross revenues realized at these communities plus reimbursement for our direct costs and expenses related to our operation of these communities, as well as an annual incentive fee equal to 20% of the annual net operating income of such communities remaining after SNH realizes an annual minimum return equal to 7% of its invested capital for these senior living communities. The second new pooling agreement will include one management agreement for a senior living community that is subject to an ongoing construction, expansion and development project. The terms of the management and pooling agreements to be entered for this senior living community will be substantially the same as the terms of the management and pooling agreements for the other five senior living communities, except that SNH’s annual minimum return on invested capital related to the ongoing construction, expansion and development project at this community will be an amount equal to the interest rate then applicable to its borrowings under its revolving credit facility plus 2% per annum. This amount of minimum return will apply until the earlier of 12 months after a certificate of occupancy is issued with respect to the project and the third anniversary of our sale of this community; thereafter, the amount of annual minimum return on invested capital related to this project will be 7% of SNH’s invested capital. Also pursuant to the terms of the management and pooling agreements to be entered for these six senior living communities, SNH will pay us a fee for our management of capital expenditure projects at these senior living communities equal to 3% of amounts funded by SNH. The terms of these management and pooling agreements will expire in 2041 and will be subject to automatic renewals, unless earlier terminated or timely notices of nonrenewal are delivered.

In accordance with FASB ASC Topic 360, Property, Plant and Equipment , the six senior living communities we have agreed to sell to, and manage for, SNH, as described in the preceding paragraphs, will meet the conditions to be classified as held for sale in reporting periods subsequent to our entry into the transaction agreement; however, as of September 30, 2017, we have not classified these communities as held for sale. As of September 30, 2017, the carrying value of these senior living communities of $54,644 consists primarily of property, plant and equipment, net of mortgage notes payable, net of mortgage discounts or premiums, of $37,334 , $1,018 of which is currently classified as short term, and all of which, as discussed above, is expected to be either prepaid at closing or assumed by SNH in connection with these sales. These six senior living communities generated income (loss) from continuing operations before income taxes of $806 and $2,075 for the three and nine months ended September 30, 2017, respectively, and $109 and $(616) for the three and nine months ended September 30, 2016, respectively.

Also in November 2017, we amended our preexisting pooling agreements with SNH, among other things, to provide that, with respect to SNH's right to terminate all of the management agreements covered by a preexisting pooling agreement if it does not receive its annual minimum return under such agreement in each of three consecutive years, the commencement year for the measurement period for determining whether the specified annual minimum return under the applicable pooling agreement has been achieved will be 2017.

During the quarter ended June 30, 2017, we and SNH agreed to amend the applicable management and pooling agreements for a construction, expansion and development project at a senior living community that SNH owns and we manage. SNH’s annual minimum return on invested capital for this specific project will increase by an amount equal to the interest rate then applicable to its borrowings under its revolving credit facility plus 2% per annum. This amount of increased minimum return will apply until 12 months after a certificate of occupancy is issued with respect to the project; thereafter, the amount of annual minimum return on invested capital will be revised to equal the amount determined pursuant to the applicable management and pooling agreements. We and SNH also agreed that the commencement of the measurement period for determining whether the specified annual minimum return under the applicable management and pooling agreements has been achieved will be deferred until 12 months after a certificate of occupancy is issued with respect to the expansion and development project.
Simultaneously with the June 2016 sale and leaseback transaction, we and SNH terminated three of our four then existing pooling agreements and entered 10 new pooling agreements that combine our management agreements with SNH for senior living communities that include assisted living units or SNF units. Pursuant to these management agreements and the new pooling agreements, we receive from SNH management fees equal to either 3% or 5% of the gross revenues realized at the applicable communities, reimbursement for our direct costs and expenses related to such communities, annual incentive fees if certain operating results at those communities are achieved and fees for our supervision of capital expenditure projects at those communities equal to 3% of amounts funded by SNH. Under these new pooling agreements, the calculations of our fees and of SNH’s annual minimum return related to management agreements that include assisted living units that became effective before May 2015 and had been pooled under one of the previously existing pooling agreements are generally the same as they were under the previously existing pooling agreements. However, for certain communities, the new pooling agreements reduced the annual minimum returns that must be realized by SNH before we earn incentive fees, and, with respect to 10 communities, reset such annual minimum returns to specified amounts. For those management agreements that include assisted living units or SNF units that became effective from and after May 2015, these new pooling agreements increased our management fees from

15


FIVE STAR SENIOR LIVING INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(dollar amounts in thousands, except per share amounts)
(unaudited)


3% to 5% of the gross revenues realized at the applicable communities, and changed our annual incentive fees from 35% to 20% of the annual net operating income of the applicable communities remaining after SNH realizes the requisite annual minimum returns.

In order to accommodate certain requirements of New York healthcare licensing laws, a part of the senior living community SNH owns, and we manage, located in Yonkers, New York is subleased by a subsidiary of SNH to D&R Yonkers LLC. D&R Yonkers LLC is owned by our Chief Financial Officer and Treasurer and by SNH’s president and chief operating officer. We count the part of this senior living community that we manage for D&R Yonkers LLC and the part of this senior living community that we manage for the account of SNH as one senior living community. We earned management fees of $87 and $65 for the three months ended September 30, 2017 and 2016 , respectively, and $195 and $194 for the nine months ended September 30, 2017 and 2016 , respectively, under this management arrangement with D&R Yonkers LLC. These amounts are in addition to the management fees we earn and report for the senior living communities we manage for the account of SNH and are included in management fee revenue in our condensed consolidated statements of operations.

Note 11. Business Management Agreement with RMR LLC

The RMR Group LLC, or RMR LLC, provides us certain services that we require to operate our business and which relate to various aspects of our business. RMR LLC provides these services pursuant to a business management agreement.

Pursuant to our business management agreement with RMR LLC, we recognized business management fees of $2,264 and $2,229 for the three months ended September 30, 2017 and 2016 , respectively, and $6,817 and $6,715 for the nine months ended September 30, 2017 and 2016 , respectively. In addition, we incurred internal audit costs of $72 and $34 for the three months ended September 30, 2017 and 2016, respectively, and $207 and $168 for the nine months ended September 30, 2017 and 2016 , respectively, which we reimburse to RMR LLC pursuant to our business management agreement. These amounts are included in general and administrative expenses in our condensed consolidated statements of operations.

Note 12. Related Person Transactions

We have relationships and historical and continuing transactions with SNH, RMR LLC, ABP Trust, AIC and others related to them, including other companies to which RMR LLC provides management services and which have trustees, directors and officers who are also our Directors or officers.
SNH . SNH is currently one of our largest stockholders, owning, as of September 30, 2017 , 4,235,000 of our common shares, or 8.5% of our outstanding common shares. We lease from, and manage for the account of, SNH a majority of the senior living communities we operate. RMR LLC provides management services to both us and SNH. See Notes 10, 11 and 13 for further information regarding our relationships, agreements and transactions with SNH and certain parties related to it and us.

RMR LLC. See Note 11 for further information regarding our management agreement with RMR LLC.

ABP Trust. A subsidiary of ABP Trust, which is the indirect controlling shareholder of RMR LLC and which is owned by one of our Managing Directors and his son, is currently our largest stockholder, owning, as of September 30, 2017 , 17,999,999 of our common shares, or 36.0% of our outstanding common shares.

We lease our headquarters from another subsidiary of ABP Trust. Our rent expense for our headquarters, including utilities and real estate taxes that we pay as additional rent, was $416 and $420 for the three months ended September 30, 2017 and 2016 , respectively, and $1,212 and $1,372 for the nine months ended September 30, 2017 and 2016 , respectively.

AIC. We, ABP Trust, SNH and four other companies to which RMR LLC provides management services currently own AIC, an Indiana insurance company, in equal amounts. We and the other AIC shareholders participate in a combined property insurance program arranged and reinsured in part by AIC. We currently expect to pay aggregate premiums, including taxes and fees of approximately $4,329 in conjunction with this insurance program for the policy year ending June 30, 2018 which amount may be adjusted from time to time as we acquire and dispose of properties that are included in this insurance program.

As of September 30, 2017 and December 31, 2016, our investment in AIC had a carrying value of $7,945 and $7,116 , respectively. These amounts are presented as equity investment of an investee in our condensed consolidated balance sheets. We recognized income related to our investment in AIC, which amounts are presented as equity in earnings of an investee in our condensed consolidated statements of operations. Our other comprehensive income includes our proportionate part of unrealized gains (losses) on securities which are owned and held for sale by AIC.

16


FIVE STAR SENIOR LIVING INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(dollar amounts in thousands, except per share amounts)
(unaudited)



For further information about these and other such relationships and certain other related person transactions, please refer to our Annual Report.

Note 13.  Acquisitions and Dispositions

Dispositions. In November 2017, we entered an agreement to sell six senior living communities we own to SNH, and we expect to enter management and pooling agreements with SNH to manage these senior living communities. See Notes 10 and 12 for further information regarding this and other transactions with SNH.

In August 2017, we sold to, and simultaneously leased back from, SNH a land parcel adjacent to a senior living community we lease from SNH. See Notes 10 and 12 for further information regarding this and other transactions with SNH.

In September 2016, we sold an assisted living community we owned which was classified as held for sale.

In June 2016, we sold seven senior living communities to SNH and SNH simultaneously leased these communities back to us under a new long term lease agreement. See Notes 10 and 12 for further information regarding the June 2016 sale and leaseback and other transactions with SNH.
 
Note 14.  Legal Proceedings and Claims

We have been, are currently, and expect in the future to be involved in claims, lawsuits, and regulatory and other government audits, investigations and proceedings arising in the ordinary course of our business, some of which may involve material amounts. Also, the defense and resolution of these claims, lawsuits, and regulatory and other government audits, investigations and proceedings may require us to incur significant expense. We account for claims and litigation losses in accordance with FASB ASC Topic 450, Contingencies , or ASC 450. Under ASC 450, loss contingency provisions are recorded for probable and estimable losses at our best estimate of a loss or, when a best estimate cannot be made, at our estimate of the minimum loss. These estimates are often developed prior to knowing the amount of the ultimate loss, require the application of considerable judgment and are refined as additional information becomes known. Accordingly, we are often initially unable to develop a best estimate of loss and therefore the estimated minimum loss amount, which could be zero , is recorded; then, as information becomes known, the minimum loss amount is updated, as appropriate. Minimum or best estimate amounts may be increased or decreased when events result in changed expectations.

In July 2017, as a result of our compliance program to review records related to our Medicare billing practices, we became aware of certain potential inadequate documentation and other possible failures to comply with appropriate policies at one of our leased SNFs. This compliance review was not initiated in response to any specific complaint or allegation, but was a review of the type that we periodically undertake to test our compliance with applicable Medicare billing rules. As a result of these discoveries, we have made a voluntary disclosure of deficiencies to the U.S. Department of Health and Human Services Office of the Inspector General, or the OIG, pursuant to the OIG's Provider Self-Disclosure Protocol. While our assessment of these matters is ongoing, we have informed the OIG that we expect our assessment to be completed by December 2017. We have determined that a loss in connection with this matter is possible, but cannot be reasonably estimated at this time; accordingly, we have not recorded any loss for this matter. However, such loss could have a material adverse impact on our business, financial condition and results of operations.

Further, as previously disclosed and also as a result of our compliance program to review medical records related to our Medicare billing practices, during 2014 we discovered potentially inadequate documentation and other issues at one of our leased SNFs. As a result of these discoveries, in February 2015, we made a voluntary disclosure of deficiencies to the OIG pursuant to the OIG’s Provider Self-Disclosure Protocol. We completed our investigation and assessment of these matters and submitted a final supplemental disclosure to the OIG in May 2015. In June 2016, we settled this matter with the OIG and agreed to pay approximately $8,600 in exchange for a customary release but did not admit any liability. We previously accrued a total liability of $10,100 related to this matter, all of which was accrued at December 31, 2015.  As a result of the accrued liability exceeding the final settlement amount, we recorded an increase to earnings in our results of operations for the nine months ended September 30, 2016 of approximately $1,500 .  Of the total increase to earnings, $1,000 was recorded as an increase to senior living revenue and $500 as a decrease to other senior living operating expenses in our condensed consolidated statements of operations consistent with the classification of the original charges.


17


FIVE STAR SENIOR LIVING INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(dollar amounts in thousands, except per share amounts)
(unaudited)


We were defendants in a lawsuit filed in the Superior Court of Maricopa County, Arizona by the estate of a former resident of a senior living community operated by us. The complaint asserted claims against us for pain and suffering as a result of improper treatment constituting violations of the Arizona Adult Protective Services Act and wrongful death. In May 2015, the jury rendered a decision in our favor on the wrongful death claim, and against us on the remaining claims, returning verdicts awarding damages of approximately $19,200 , which consisted of $2,500 for pain and suffering and the remainder in punitive damages. In March 2016, pursuant to a settlement agreement we entered with the plaintiff, $7,250 was paid to the plaintiff, of which $3,021 was paid by our then liability insurer and the balance by us. We recorded a $4,229 charge for the year ended December 31, 2015 for the net settlement amount we paid. In September 2017, pursuant to an agreement we entered with our former liability insurer to settle litigation we had commenced against it, our former liability insurer paid us an additional $800 related to our settlement of the Arizona litigation matter and we recorded a decrease to other senior living operating expenses in our condensed consolidated statements of operations consistent with the classification of the original charge.

18



Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations

The following discussion should be read in conjunction with the condensed consolidated financial statements and related notes included elsewhere in this Quarterly Report on Form 10-Q, or this Quarterly Report, and with our Annual Report.

GENERAL INDUSTRY TRENDS

We believe that the primary market for senior living services is individuals age 75 and older, and, according to U.S. Census data, that group is projected to be among the fastest growing age cohort in the United States over the next 20 years. Also, as a result of medical advances, seniors are living longer. Due to these demographic trends, we expect the demand for senior living services to increase for the foreseeable future, although demand may fluctuate and could decline over certain periods and may vary among different types of senior living services.
    
Despite this trend, future economic downturns, softness in the U.S. housing market, higher levels of unemployment among our potential residents' family members, lower levels of consumer confidence, stock market volatility and/or changes in demographics could adversely affect the ability of seniors to afford our resident charges. Prospective residents who plan to use the proceeds from the sale of their homes to cover the cost of senior living services seem to be especially affected by cyclical factors affecting the housing market. In recent years, economic indicators reflect an improving housing market; however, it is unclear how sustainable the improvements will be and whether any such improvements will result in any increased demand for our services. Although many of the services that we provide to residents are needs driven, some prospective residents may be deferring decisions to relocate to senior living communities in light of economic circumstances, among other reasons.

For the past few years, low capital costs appear to have encouraged increased senior living development, particularly in areas where existing senior living communities have historically experienced high occupancies. This has resulted in a significant number of new senior living communities being developed in recent years. This development activity has increased competitive pressures on us, particularly in certain geographic markets where we own, lease and manage senior living communities, including Arizona, Georgia and Texas. As recently developed senior living communities begin operations, we expect to have continuing challenges to maintain or increase occupancies and charges at our senior living communities. These challenges are currently negatively impacting our revenues, cash flows and results from operations and we expect these competitive challenges to continue for at least the next few years.

Another factor which appears to be negatively affecting us and our industry is that the same medical advances which are extending lives and periods of occupancy at senior living communities are also allowing some potential residents to defer the time when they require the special services available at our communities. We do not currently believe that the increased stays which will result from medical advances will be completely offset by deferred entry, but we think this factor may be contributing to occupancy declines at this time.

The senior living and healthcare industries are subject to extensive and frequently changing federal, state and local laws and regulations. These laws and regulations vary by jurisdiction but may address, among other things, licensure, personnel training, staffing ratios, types and quality of medical care, physical facility requirements, government healthcare program participation, the definition of "fraud and abuse", payment rates for resident services and confidentiality of patient records. We incur significant costs to comply with these laws and regulations and these laws and regulations may result in our having to repay payments we received for services we provided and to pay penalties, fines and interest, which amounts can be significant. See Note 14 to our condensed consolidated financial statements included in Part I, Item 1 of this Quarterly Report. For further information regarding government regulations and reimbursements, including possible changes and related legislative and other reform efforts, see "—Our Revenues" in Part I, Item 2 of this Quarterly Report.

RESULTS OF OPERATIONS

We have two operating segments: (i) senior living communities and (ii) rehabilitation and wellness. In the senior living communities segment, we operate for our own account or manage for the account of others independent living communities, assisted living communities and SNFs that are subject to centralized oversight and provide housing and services to elderly residents. In the rehabilitation and wellness operating segment, we provide services in the inpatient setting and in outpatient clinics. We have determined that our two operating segments meet the aggregation criteria as prescribed under FASB ASC Topic 280, Segment Reporting, and we have therefore determined that our business is comprised of one reportable segment, senior living. All of our operations and assets are located in the United States, except for the operations of our Cayman Islands organized captive insurance company subsidiary, which participates in our workers’ compensation and professional and general liability insurance programs.

19


Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations



On June 29, 2016, we sold seven senior living communities to SNH for an aggregate purchase price of $112.4 million and SNH simultaneously leased these communities back to us under a new long term lease agreement. Simultaneously with the June 2016 sale and leaseback transaction, we and SNH terminated three of our four then existing pooling agreements and entered 10 new pooling agreements that combine our management agreements with SNH for senior living communities that include assisted living units. Pursuant to these management agreements and the new pooling agreements, changes to the management fees we receive from SNH were made. For further information regarding these transactions, see Note 10 to our condensed consolidated financial statements included in Part I, Item 1 and "—Our Leases and Management Agreements with SNH" in Part I, Item 2 of this Quarterly Report.
Key Statistical Data For the Three Months Ended September 30, 2017 and 2016 :
The following tables present a summary of our operations for the three months ended September 30, 2017 and 2016 :
 
 
Three Months Ended September 30,
 
(dollars in thousands, except average monthly rate)
 
2017
 
2016
 
Change
 
%/bps
Change
 
Senior living revenue
 
$
279,654

 
$
279,276

 
$
378

 
0.1
 %
 
Management fee revenue
 
3,414

 
3,336

 
78

 
2.3
 %
 
Reimbursed costs incurred on behalf of managed communities
 
64,033

 
62,099

 
1,934

 
3.1
 %
 
Total revenues
 
347,101

 
344,711

 
2,390

 
0.7
 %
 
Senior living wages and benefits
 
(138,235
)
 
(139,056
)
 
821

 
(0.6
)%
 
Other senior living operating expenses
 
(71,238
)
 
(70,890
)
 
(348
)
 
0.5
 %
 
Costs incurred on behalf of managed communities
 
(64,033
)
 
(62,099
)
 
(1,934
)
 
3.1
 %
 
Rent expense
 
(51,779
)
 
(50,625
)
 
(1,154
)
 
2.3
 %
 
General and administrative expenses
 
(17,851
)
 
(18,542
)
 
691

 
(3.7
)%
 
Depreciation and amortization expense
 
(9,753
)
 
(9,398
)
 
(355
)
 
3.8
 %
 
Long lived asset impairment
 
(142
)
 
(196
)
 
54

 
(27.6
)%
 
Interest, dividend and other income
 
167

 
237

 
(70
)
 
(29.5
)%
 
Interest and other expense
 
(1,139
)
 
(945
)
 
(194
)
 
20.5
 %
 
Gain on early extinguishment of debt
 
143

 

 
143

 
100.0
 %
 
Gain on sale of available for sale securities reclassified from accumulated other comprehensive income, net of tax
 
70

 
12

 
58

 
483.3
 %
 
Benefit (provision) for income taxes
 
55

 
934

 
(879
)
 
(94.1
)%
 
Equity in earnings of an investee, net of tax
 
31

 
13

 
18

 
138.5
 %
 
Loss from continuing operations
 
$
(6,603
)
 
$
(5,844
)
 
$
(759
)
 
13.0
 %
 
Total number of communities (end of period):
 
 
 
 
 
 
 
 
 
Owned and leased communities (1)
 
215

 
213

 
2

 
0.9
 %
 
Managed communities
 
68

 
63

 
5

 
7.9
 %
 
Number of total communities (1)
 
283

 
276

 
7

 
2.5
 %
 
Total number of living units (end of period):
 
 
 
 
 
 
 
 
 
Owned and leased living units (1)(2)
 
23,005

 
22,947

 
58

 
0.3
 %
 
Managed living units (2)
 
8,807

 
8,402

 
405

 
4.8
 %
 
Number of total living units (1)(2)
 
31,812

 
31,349

 
463

 
1.5
 %
 
Owned and leased communities (1) :
 
 
 
 
 
 
 
 
 
Occupancy % (2)
 
83.0
%
 
83.8
%
 
n/a 

 
(80
)
bps
Average monthly rate (3)
 
$
4,648

 
$
4,608

 
$
40

 
0.9
 %
 
Percent of senior living revenue from Medicaid
 
12.7
%
 
11.5
%
 
n/a 

 
120

bps
Percent of senior living revenue from Medicare
 
9.2
%
 
9.9
%
 
n/a 

 
(70
)
bps
Percent of senior living revenue from private and other sources
 
78.1
%
 
78.6
%
 
n/a 

 
(50
)
bps
 
 
(1) Excludes those senior living communities that we had classified as discontinued operations.
(2) The calculation of occupancy includes only living units categorized as in service and as a result, the number of living units may change from period to period.
(3) Average monthly rate is calculated by taking the average daily rate, which is defined as total operating revenues for senior living services divided by occupied units during the period, and multiplying it by 30 days.

20


Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations



Comparable communities (senior living communities that we have owned, leased or managed and operated continuously since July 1, 2016):
 
 
Three Months Ended September 30,
 
(dollars in thousands, except average monthly rate)
 
2017
 
2016
 
Change
 
%/bps
Change
 
Senior living revenue
 
$
278,556

 
$
279,270

 
$
(714
)
 
(0.3
)%
 
Management fee revenue
 
3,010

 
3,028

 
(18
)
 
(0.6
)%
 
Senior living wages and benefits
 
137,783

 
139,051

 
(1,268
)
 
(0.9
)%
 
Other senior living operating expenses
 
70,913

 
70,927

 
(14
)
 
 %
 
Total number of communities (end of period):
 
 
 
 
 
 
 
 
 
Owned and leased communities (1)
 
213

 
213

 

 
 %
 
Managed communities
 
62

 
62

 

 
 %
 
Number of total communities (1)
 
275

 
275

 

 
 %
 
Total number of living units (end of period):
 
 
 
 
 
 
 
 
 
Owned and leased living units (1)(2)
 
22,879

 
22,947

 
(68
)
 
(0.3
)%
 
Managed living units (2)
 
8,242

 
8,239

 
3

 
 %
 
Number of total living units (1)(2)
 
31,121

 
31,186

 
(65
)
 
(0.2
)%
 
Owned and leased communities (1) :
 
 
 
 
 
 
 
 
 
Occupancy % (2)
 
82.9
%
 
83.8
%
 
n/a 

 
(90
)
bps
Average monthly rate (3)
 
$
4,658

 
$
4,608

 
$
63

 
1.4
 %
 
Percent of senior living revenue from Medicaid
 
12.7
%
 
11.5
%
 
n/a 

 
120

bps
Percent of senior living revenue from Medicare
 
9.2
%
 
9.9
%
 
n/a 

 
(70
)
bps
Percent of senior living revenue from private and other sources
 
78.1
%
 
78.6
%
 
n/a 

 
(50
)
bps
 
 

(1) Excludes those senior living communities that we had classified as discontinued operations.
(2) The calculation of occupancy includes only living units categorized as in service and as a result, the number of living units may change from period to period.
(3) Average monthly rate is calculated by taking the average daily rate, which is defined as total operating revenues for senior living services divided by occupied units during the period, and multiplying it by 30 days.
Three Months Ended September 30, 2017 Compared to Three Months Ended September 30, 2016
The following is a discussion of our operating results for all of our senior living communities during the three months ended September 30, 2017 compared to the three months ended September 30, 2016. We do not present a separate discussion of our operating results for our comparable communities for these periods because we do not believe it would be meaningfully different.
Senior living revenue. Senior living revenue for the three months ended September 30, 2017 increased approximately 0.1% compared to the same period in 2016 primarily due to an increase in average monthly rates to residents who pay privately for services and our leasing of two additional communities from SNH beginning in the fourth quarter of 2016, partially offset by a decrease in occupancy.
 
Management fee revenue. Management fee revenue increased by 2.3% for the three months ended September 30, 2017 compared to the same period in 2016 primarily due to an increase in the number of managed communities from 63 to 68 .

Reimbursed costs incurred on behalf of managed communities. Reimbursed costs incurred on behalf of managed communities increased by 3.1% for the three months ended September 30, 2017 compared to the same period in 2016 primarily due to an increase in the number of managed communities from 63 to 68 .
 
Senior living wages and benefits. Senior living wages and benefits decreased by 0.6% for the three months ended September 30, 2017 compared to the same period in 2016 primarily due to a decrease in employee health insurance and workers' compensation insurance costs, partially offset by annual wage increases and our leasing of two additional communities from SNH beginning in the fourth quarter of 2016.
 
Other senior living operating expenses. Other senior living operating expenses, which include utilities, housekeeping, dietary, repairs and maintenance, insurance and community level administrative costs, increased by 0.5% for the three months ended September 30, 2017 compared to the same period in 2016 primarily due to an increase in food related costs and professional and general liability insurance expenses, partially offset by a decrease in utility costs and a $0.8 million payment we received from our former liability insurer related to the settlement of our Arizona litigation matter. For further information regarding this

21


Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations



payment and litigation settlement, see Note 14 to our condensed consolidated financial statements included in Part I, Item 1 of this Quarterly Report.

Rent expense. Rent expense increased by 2.3% for the three months ended September 30, 2017 compared to the same period in 2016 primarily due to additional rent related to senior living community capital improvements we sold to SNH since July 1, 2016 pursuant to our leases with SNH and our leasing of two additional communities from SNH beginning in the fourth quarter of 2016. 

General and administrative expenses. General and administrative expenses decreased by 3.7% for the three months ended September 30, 2017 compared to the same period in 2016 primarily due to professional fees and transaction costs we incurred in the three months ended September 30, 2016 relating to our 2016 acquisition and disposition activities that we did not incur in the same period in 2017, partially offset by increases in certain corporate wages and benefits and purchased services.
 
Depreciation and amortization expense. Depreciation and amortization expense increased by 3.8% for the three months ended September 30, 2017 compared to the same period in 2016 primarily due to capital expenditures we made at our owned and leased communities (net of our sales of capital improvements to SNH at our leased communities) since July 1, 2016.

Long lived asset impairment. For the three months ended September 30, 2017 and 2016, we recorded non-cash charges for long lived asset impairment of $0.1 million and $0.2 million, respectively, to reduce the carrying value of certain of our long lived assets to their estimated fair values.
 
Interest, dividend and other income. Interest, dividend and other income decreased by 29.5% for the three months ended September 30, 2017 compared to the same period in 2016 primarily due to lower investable cash and cash equivalents balances.
 
Interest and other expense. Interest and other expense increased by 20.5% for the three months ended September 30, 2017 compared to the same period in 2016 primarily due to increased borrowings under our credit facilities.
 
Gain on early extinguishment of debt. In September 2017, we prepaid a mortgage note and recorded a gain of $0.1 million , net of unamortized premiums and a prepayment penalty equal to 1% of the principal prepaid.

Gain on available for sale securities reclassified from accumulated other comprehensive income, net of tax. Gain on sale of available for sale securities reclassified from accumulated other comprehensive income represents our realized gain on investments. 

Benefit for income taxes. For the three months ended September 30, 2017 and 2016 , we recognized a benefit for income taxes from continuing operations of $0.1 million and $0.9 million , respectively. The benefit for income taxes for the three months ended September 30, 2017 is due primarily to intra-period tax allocation benefits related to the unrealized gains on our available for sale securities, and the benefit for income taxes for the same period in 2016 is primarily due to a reduction of previously accrued estimated state tax expense resulting from the June 2016 sale and leaseback transaction.
 
Equity in earnings of an investee, net of tax. Equity in earnings of an investee represents our proportionate share of earnings from AIC.

Discontinued operations:

We recorded a loss from discontinued operations for the three months ended September 30, 2016 of $0.1 million . The loss from discontinued operations was primarily due to losses incurred at the senior living community that we sold in September 2016 which was classified as held for sale.


22


Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations



Key Statistical Data For the Nine Months Ended September 30, 2017 and 2016 :

The following tables present a summary of our operations for the nine months ended September 30, 2017 and 2016 :
 
 
Nine Months Ended September 30,
 
(dollars in thousands, except average monthly rate)
 
2017
 
2016
 
Change
 
%/bps
Change
 
Senior living revenue
 
$
842,938

 
$
842,278

 
$
660

 
0.1
 %
 
Management fee revenue
 
10,531

 
8,955

 
1,576

 
17.6
 %
 
Reimbursed costs incurred on behalf of managed communities
 
194,346

 
180,623

 
13,723

 
7.6
 %
 
Total revenues
 
1,047,815

 
1,031,856

 
15,959

 
1.5
 %
 
Senior living wages and benefits
 
(413,137
)
 
(414,641
)
 
1,504

 
(0.4
)%
 
Other senior living operating expenses
 
(219,119
)
 
(212,565
)
 
(6,554
)
 
3.1
 %
 
Costs incurred on behalf of managed communities
 
(194,346
)
 
(180,623
)
 
(13,723
)
 
7.6
 %
 
Rent expense
 
(154,524
)
 
(150,837
)
 
(3,687
)
 
2.4
 %
 
General and administrative expenses
 
(56,733
)
 
(54,218
)
 
(2,515
)
 
4.6
 %
 
Depreciation and amortization expense
 
(29,040
)
 
(28,847
)
 
(193
)
 
0.7
 %
 
Long lived asset impairment
 
(528
)
 
(502
)
 
(26
)
 
5.2
 %
 
Interest, dividend and other income
 
559

 
766

 
(207
)
 
(27.0
)%
 
Interest and other expense
 
(3,200
)
 
(3,957
)
 
757

 
(19.1
)%
 
Gain on early extinguishment of debt
 
143

 

 
143

 
100.0
 %
 
Gain on sale of available for sale securities reclassified from accumulated other comprehensive income, net of tax
 
351

 
247

 
104

 
42.1
 %
 
Benefit (provision) for income taxes
 
1,330

 
(2,841
)
 
4,171

 
(146.8
)%
 
Equity in earnings of an investee, net of tax
 
533

 
107

 
426

 
398.1
 %
 
Loss from continuing operations
 
$
(19,896
)
 
$
(16,055
)
 
$
(3,841
)
 
23.9
 %
 
Total number of communities (end of period):
 
 
 
 
 
 
 
 
 
Owned and leased communities (1)
 
215

 
213

 
2

 
0.9
 %
 
Managed communities
 
68

 
63

 
5

 
7.9
 %
 
Number of total communities (1)
 
283

 
276

 
7

 
2.5
 %
 
Total number of living units (end of period):
 
 
 
 
 
 
 
 
 
Owned and leased living units (1)(2)
 
23,005

 
22,947

 
58

 
0.3
 %
 
Managed living units (2)
 
8,807

 
8,402

 
405

 
4.8
 %
 
Number of total living units (1)(2)
 
31,812

 
31,349

 
463

 
1.5
 %
 
Owned and leased communities (1) :
 
 
 
 
 
 
 
 
 
Occupancy % (2)
 
83.2
%
 
84.4
%
 
n/a 

 
(120
)
bps
Average monthly rate (3)
 
$
4,706

 
$
4,640

 
$
66

 
1.4
 %
 
Percent of senior living revenue from Medicaid
 
12.0
%
 
11.5
%
 
n/a 

 
50

bps
Percent of senior living revenue from Medicare
 
10.2
%
 
10.1
%
 
n/a 

 
10

bps
Percent of senior living revenue from private and other sources
 
77.8
%
 
78.4
%
 
n/a 

 
(60
)
bps
 
 
(1) Excludes those senior living communities that we had classified as discontinued operations.
(2) The calculation of occupancy includes only living units categorized as in service and as a result, the number of living units may change from period to period.
(3) Average monthly rate is calculated by taking the average daily rate, which is defined as total operating revenues for senior living services divided by occupied units during the period, and multiplying it by 30 days.

23


Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations



Comparable communities (senior living communities that we have owned, leased or managed and operated continuously since January 1, 2016):
 
 
Nine Months Ended September 30,
 
(dollars in thousands, except average monthly rate)
 
2017
 
2016
 
Change
 
%/bps
Change
 
Senior living revenue
 
$
839,532

 
$
840,865

 
$
(1,333
)
 
(0.2
)%
 
Management fee revenue
 
8,873

 
8,551

 
322

 
3.8
 %
 
Senior living wages and benefits
 
411,723

 
413,308

 
(1,585
)
 
(0.4
)%
 
Other senior living operating expenses
 
218,124

 
211,561

 
6,563

 
3.1
 %
 
Total number of communities (end of period):
 
 
 
 
 
 
 
 
 
Owned and leased communities (1)
 
213

 
213

 

 
 %
 
Managed communities
 
60

 
60

 

 
 %
 
Number of total communities (1)
 
273

 
273

 

 
 %
 
Total number of living units (end of period):
 
 
 
 
 
 
 
 
 
Owned and leased living units (1)(2)
 
22,879

 
22,947

 
(68
)
 
(0.3
)%
 
Managed living units (2)
 
8,104

 
8,101

 
3

 
 %
 
Number of total living units (1)(2)
 
30,983

 
31,048

 
(65
)
 
(0.2
)%
 
Owned and leased communities (1) :
 
 
 
 
 
 
 
 
 
Occupancy % (2)
 
83.1
%
 
84.4
%
 
n/a 

 
(130
)
bps
Average monthly rate (3)
 
$
4,716

 
$
4,632

 
$
63

 
1.4
 %
 
Percent of senior living revenue from Medicaid
 
12.1
%
 
11.4
%
 
n/a 

 
70

bps
Percent of senior living revenue from Medicare
 
10.2
%
 
10.1
%
 
n/a 

 
10

bps
Percent of senior living revenue from private and other sources
 
77.7
%
 
78.5
%
 
n/a 

 
(80
)
bps
 
 

(1) Excludes those senior living communities that we had classified as discontinued operations.
(2) The calculation of occupancy includes only living units categorized as in service and as a result, the number of living units may change from period to period.
(3) Average monthly rate is calculated by taking the average daily rate, which is defined as total operating revenues for senior living services divided by occupied units during the period, and multiplying it by 30 days.
Nine Months Ended September 30, 2017 Compared to Nine Months Ended September 30, 2016
The following is a discussion of our operating results for all of our senior living communities during the nine months ended September 30, 2017 compared to the nine months ended September 30, 2016. We do not present a separate discussion of our operating results for our comparable communities for these periods because we do not believe it would be meaningfully different.
Senior living revenue. Senior living revenue for the nine months ended September 30, 2017 increased approximately 0.1% compared to the same period in 2016 primarily due to an increase in average monthly rates to residents who pay privately for services and our leasing of two additional communities from SNH beginning in the fourth quarter of 2016, partially offset by a decrease in occupancy and a $1.0 million reversal in revenue reserves in 2016 as a result of the final settlement amount of the Medicare compliance assessment at one of our SNFs, or the Compliance Assessment, being less than the previously estimated amount. For further information regarding the Compliance Assessment, see Note 14 to our condensed consolidated financial statements included in Part I, Item 1 of this Quarterly Report.

Management fee revenue. Management fee revenue increased by 17.6% for the nine months ended September 30, 2017 compared to the same period in 2016 primarily due to an increase in the number of managed communities from 63 to 68 as well as an increase in the base management fee to 5% from 3% under our management agreements with SNH for certain communities and additional fees for our supervision of capital expenditure projects by us at the communities we manage for the account of SNH, both of which became effective on July 1, 2016.

Reimbursed costs incurred on behalf of managed communities. Reimbursed costs incurred on behalf of managed communities increased by 7.6% for the nine months ended September 30, 2017 compared to the same period in 2016 primarily due to an increase in the number of managed communities from 63 to 68 .
 
Senior living wages and benefits. Senior living wages and benefits decreased by 0.4% for the nine months ended September 30, 2017 compared to the same period in 2016 primarily due to a decrease in employee health insurance and workers' compensation insurance costs, partially offset by annual wage increases and our leasing of two additional communities from SNH beginning in the fourth quarter of 2016.
 

24


Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations



Other senior living operating expenses. Other senior living operating expenses, which include utilities, housekeeping, dietary, repairs and maintenance, insurance and community level administrative costs, increased by 3.1% for the nine months ended September 30, 2017 compared to the same period in 2016 primarily due to an increase in repairs and maintenance expenses, professional and general liability insurance expenses, a $0.5 million reversal in accrued liability in 2016 for estimated penalties related to the Compliance Assessment and our leasing of two additional communities from SNH beginning in the fourth quarter of 2016, partially offset by a $0.8 million payment we received from our former liability insurer related to the settlement of our Arizona litigation matter.

Rent expense. Rent expense increased by 2.4% for the nine months ended September 30, 2017 compared to the same period in 2016 primarily due to additional rent related to senior living community capital improvements we sold to SNH since January 1, 2016 pursuant to our leases with SNH, an increase in the number of leased communities due to the June 2016 sale and leaseback transaction and our leasing of two additional communities from SNH beginning in the fourth quarter of 2016, partially offset by amortization of the deferred gain we realized from the June 2016 sale and leaseback transaction.
 
General and administrative expenses. General and administrative expenses increased by 4.6% for the nine months ended September 30, 2017 compared to the same period in 2016 primarily due to increases in corporate wages and benefits, purchased services and marketing expenses, partially offset by a decrease in professional fees and transaction costs we incurred in the three months ended September 30, 2016 relating to our 2016 acquisition and disposition activities that we did not incur in the same period in 2017.
 
Depreciation and amortization expense. Depreciation and amortization expense increased by 0.7% for the nine months ended September 30, 2017 compared to the same period in 2016 primarily due to capital expenditures at our owned and leased communities (net of our sales of capital improvements to SNH at our leased communities) since January 1, 2016, partially offset by our sale of seven senior living communities to SNH as part of the June 2016 sale and leaseback transaction.

Long lived asset impairment. For each of the nine months ended September 30, 2017 and 2016 , we recorded non-cash charges for long lived asset impairment of $0.5 million to reduce the carrying value of certain of our long lived assets to their estimated fair values.
 
Interest, dividend and other income. Interest, dividend and other income decreased by 27.0% for the nine months ended September 30, 2017 compared to the same period in 2016 primarily due to lower investable cash and cash equivalents balances.

Interest and other expense. Interest and other expense decreased by 19.1% for the nine months ended September 30, 2017 compared to the same period in 2016 primarily due to decreased borrowings under our credit facilities.

Gain on early extinguishment of debt. In September 2017, we prepaid a mortgage note and recorded a gain of $0.1 million , net of unamortized premiums and a prepayment penalty equal to 1% of the principal prepaid.

Gain on available for sale securities reclassified from accumulated other comprehensive income, net of tax. Gain on sale of available for sale securities reclassified from accumulated other comprehensive income represents our realized gain on investments.
 
Benefit (provision) for income taxes. For the nine months ended September 30, 2017 and 2016 , we recognized a benefit for income taxes from continuing operations of $1.3 million and a provision for income taxes from continuing operations of $2.8 million , respectively. The benefit for income taxes for the nine months ended September 30, 2017 is due primarily to monetizing alternative minimum tax credits in the second quarter of 2017. The provision for income taxes for the nine months ended September 30, 2016 is due primarily to the June 2016 sale and leaseback transaction.
 
Equity in earnings of an investee, net of tax. Equity in earnings of an investee represents our proportionate share of earnings from AIC.

Discontinued operations:

We recorded a loss from discontinued operations for the nine months ended September 30, 2016 of $0.1 million . The loss from discontinued operations was primarily due to impairment charges, partially offset by a gain to increase the carrying value of the senior living community we sold in September 2016 which was classified as held for sale.


25


Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations



LIQUIDITY AND CAPITAL RESOURCES

As of September 30, 2017 , we had $8.7 million of unrestricted cash and cash equivalents and $92.3 million available for borrowing under our credit facility.

Our principal sources of funds to meet operating and capital expenses and debt service obligations are cash flows from operating activities, unrestricted cash balances, borrowings under our credit facility and proceeds from our sales to SNH of qualified capital improvements we may make to communities that we lease from SNH for increased rent pursuant to our leases. We believe that these sources will be sufficient to meet our operating and capital expenses and debt service obligations for the next 12 months and for the foreseeable future thereafter.
Our future cash flows from operating activities will depend primarily upon our ability to maintain or increase the occupancy of, and the rental rates at, our senior living communities and our ability to control operating expenses at our senior living communities. If occupancy at our senior living communities continues to decline, the rates we receive from residents who pay for our services with private resources decline, government reimbursement rates are reduced or if we are unable to generate positive cash flows for an extended period for these or other reasons, we expect that we would explore various alternatives to fund our operations. Such alternatives may include further reducing our costs, incurring debt under or in addition to our credit facility, engaging in sale and leaseback or sale and manageback transactions, mortgage financing our owned senior living communities and issuing other debt or equity securities. We believe these alternatives will be available to us, but we cannot be sure that they will be.

Assets and Liabilities

At September 30, 2017 , we had $8.7 million of unrestricted cash and cash equivalents compared to $16.6 million at December 31, 2016 . Our total current and long term assets were $124.3 million and $372.8 million , respectively, at September 30, 2017 , compared to $129.4 million and $380.3 million , respectively, at December 31, 2016 .  Our total current and long term liabilities were $202.8 million and $148.7 million , respectively, at September 30, 2017 , compared to $173.0 million and $172.5 million , respectively, at December 31, 2016 . The decrease in total current assets primarily relates to a decrease in due from related persons because of timing differences in when payments were received and a decrease in cash and cash equivalents, partially offset by an increase in restricted cash to collateralize the "step up" letter of credit used as security for our workers’ compensation insurance program and an increase in prepaid and other current assets due to timing differences in when our various insurance policies are renewed. The increase in total current liabilities primarily relates to an increase in other current liabilities due to an increase in the short term portion of accrued self insurance obligations, an increase in accrued compensation and benefits due to timing differences in when the pay dates prior to the end of each period occurred, an increase in accrued real estate taxes due to timing differences in when real taxes bills are assessed and paid and borrowings under our credit facility. The decrease in our total long term liabilities primarily relates to the prepayment of one of our mortgage notes in September 2017 and the amortization of the deferred gain associated with the June 2016 sale and leaseback transaction.

We had cash flows provided by operating activities of $25.0 million for the nine months ended September 30, 2017 , compared to cash flows used in operating activities of $7.0 million for the same period in 2016 . The increase in cash flows provided by operating activities for the nine months ended September 30, 2017 compared to the same period in 2016 relates to the timing of payments made by us for payables and other accrued expenses, amounts received by us from related persons, a payment by us related to the settlement of our Arizona litigation matter during the nine months ended September 30, 2016, a payment by us made to the OIG in connection with the settlement of the Compliance Assessment during the nine months ended September 30, 2016 and a $0.8 million payment we received from our former liability insurer related to the settlement of our Arizona litigation matter during the nine months ended September 30, 2017. The foregoing was partially offset by lower operating income before non-cash items during the nine months ended September 30, 2017 compared to the same period in 2016.

We had cash flows used in investing activities of $22.9 million for the nine months ended September 30, 2017 , compared to cash flows provided by investing activities of $86.6 million for the same period in 2016 , respectively. The decrease in cash flows from investing activities was primarily due to the $112.4 million of net proceeds received from the June 2016 sale and leaseback transaction. Acquisitions of property and equipment, net of sales of qualified improvements we made to SNH pursuant to our leases with SNH, were $24.4 million and $25.6 million for the nine months ended September 30, 2017 and 2016 , respectively. 

We had cash flows used in financing activities of $11.0 million and $51.2 million for the nine months ended September 30, 2017 and 2016, respectively. The decrease in cash flows used in financing activities for the nine months ended September 30, 2017 was due to the repayment during the nine months ended September 30, 2016 of $75.0 million of outstanding borrowings

26


Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations



under our prior credit facility with part of the proceeds from the June 2016 sale and leaseback transaction, partially offset by the prepayment of a $13.1 million mortgage note in September 2017.

Our Leases and Management Agreements with SNH
 
As of September 30, 2017 , we leased 185 senior living communities from SNH under five leases.  Our total annual rent payable to SNH as of September 30, 2017 was $206.3 million , excluding percentage rent based on increases in gross revenues at certain communities.  Our total rent expense under all of our leases with SNH, net of lease inducement amortization and the amortization of the deferred gain associated with the June 2016 sale and leaseback transaction, was $51.1 million and $49.9 million for the three months ended September 30, 2017 and 2016 , respectively, and $152.4 million and $148.7 million for the nine months ended September 30, 2017 and 2016 , respectively, which included approximately $1.4 million in estimated percentage rent due to SNH for each of the three months ended September 30, 2017 and 2016 and $4.2 million for each of the nine months ended September 30, 2017 and 2016 .

On June 29, 2016, we sold seven senior living communities to SNH for an aggregate purchase price of $112.4 million and SNH simultaneously leased these communities back to us under a new long term lease agreement. Under the new lease, we are required to pay SNH initial annual rent of $8.4 million, plus percentage rent beginning in 2018.

Upon our request, SNH may purchase capital improvements made at the communities we lease from SNH and increase our rent pursuant to contractual formulas; however, we are not required to offer these improvements for sale to SNH and SNH is not obligated to purchase these improvements from us. During the nine months ended September 30, 2017 , we sold to SNH $30.7 million of capital improvements made at the communities we lease from SNH and these purchases resulted in our annual rent being increased by approximately $2.5 million

During the quarter ended June 30, 2017, we and SNH agreed to amend the applicable lease for certain construction, expansion and development projects at two senior living communities we lease from SNH. If and when we request SNH to purchase improvements related to these specific projects from us, our annual rent payable to SNH will increase by an amount equal to the interest rate then applicable to SNH’s borrowings under its revolving credit facility plus 2% per annum of the amount SNH purchased. This amount of increased rent will apply until 12 months after a certificate of occupancy is issued with respect to the project; thereafter, our annual rent payable to SNH will be revised to equal the amount determined pursuant to the capital improvement formula specified in the applicable lease.
 
We managed 68 senior living communities for the account of SNH and its related entities as of September 30, 2017 , pursuant to long term management agreements and pooling agreements that combine various calculations of revenues and expenses from the operations of the communities covered by the applicable pooling agreements. Simultaneously with the June 2016 sale and leaseback transaction, we and SNH terminated three of our four then existing pooling agreements and entered 10 new pooling agreements that combine our management agreements with SNH for senior living communities that include assisted living units. Pursuant to these management agreements and the new pooling agreements, we receive from SNH management fees equal to either 3% or 5% of the gross revenues realized at the applicable communities, reimbursement for our direct costs and expenses related to such communities, annual incentive fees if certain operating results at those communities are achieved and fees for our supervision of capital expenditure projects at those communities equal to 3% of amounts funded by SNH.

We earned management fees of $3.4 million and $3.3 million from the senior living communities we manage for the account of SNH and its related entities for the three months ended September 30, 2017 and 2016 , respectively, and $10.5 million and $9.0 million for the nine months ended September 30, 2017 and 2016 , respectively. Included in these amounts were fees we earned for our supervision of capital expenditure projects at the communities we managed for the account of SNH of $0.1 million and $0.3 million for the three months ended September 30, 2017 and 2016 , respectively, and $0.6 million and $0.3 million for the nine months ended September 30, 2017 and 2016 , respectively.

In November 2017, we entered a transaction agreement with SNH pursuant to which we agreed to sell six senior living communities we own to SNH. We will enter management and pooling agreements with SNH as we sell these communities to manage these senior living communities. The aggregate sales price for these six senior living communities is approximately $104.0 million , including, as of September 30, 2017, $2.4 million of mortgage debt that will be prepaid at closing with proceeds from the sale and SNH's assumption of approximately $33.7 million of mortgage debt securing certain of these senior living communities and excluding closing costs. These sales are subject to conditions, including SNH’s assumption of certain applicable mortgage debt and receipt of any applicable regulatory approvals. We expect to complete these sales as third party approvals are received between now and the end of the first quarter of 2018; however, the conditions to our sales of these senior living communities may not be met and some or all of these sales and related management and pooling arrangements may not occur, may be delayed or the terms may change.

27


Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations




The management agreements we and SNH will enter in connection with our sales of these senior living communities will be combined pursuant to two new pooling agreements to be entered between us and SNH. The first new pooling agreement will combine the management agreements for five of these senior living communities. Pursuant to the terms of the management and pooling agreements to be entered for these five senior living communities, SNH will pay us a management fee equal to 5% of the gross revenues realized at these communities plus reimbursement for our direct costs and expenses related to our operation of these communities, as well as an annual incentive fee equal to 20% of the annual net operating income of such communities remaining after SNH realizes an annual minimum return equal to 7% of its invested capital for these senior living communities. The second new pooling agreement will include one management agreement for a senior living community that is subject to an ongoing construction, expansion and development project. The terms of the management and pooling agreements to be entered for this senior living community will be substantially the same as the terms of the management and pooling agreements for the other five senior living communities, except that SNH’s annual minimum return on invested capital related to the ongoing construction, expansion and development project at this community will be an amount equal to the interest rate then applicable to its borrowings under its revolving credit facility plus 2% per annum. This amount of minimum return will apply until the earlier of 12 months after a certificate of occupancy is issued with respect to the project and the third anniversary of our sale of this community; thereafter, the amount of annual minimum return on invested capital related to this project will be 7% of SNH’s invested capital. Also pursuant to the terms of the management and pooling agreements to be entered for these six senior living communities, SNH will pay us a fee for our management of capital expenditure projects at these senior living communities equal to 3% of amounts funded by SNH. The terms of these management and pooling agreements will expire in 2041 and will be subject to automatic renewals, unless earlier terminated or timely notices of nonrenewal are delivered.

Also in November 2017, we amended our preexisting pooling agreements with SNH, among other things, to provide that, with respect to SNH's right to terminate all of the management agreements covered by a preexisting pooling agreement if it does not receive its annual minimum return under such agreement in each of three consecutive years, the commencement year for the measurement period for determining whether the specified annual minimum return under the applicable pooling agreement has been achieved will be 2017.

During the quarter ended June 30, 2017, we and SNH agreed to amend the applicable management and pooling agreements for a construction, expansion and development project at a senior living community that SNH owns and we manage. SNH’s annual minimum return of invested capital for this specific project will increase by an amount equal to the interest rate then applicable to its borrowings under its revolving credit facility plus 2% per annum. This amount of increased minimum return will apply until 12 months after a certificate of occupancy is issued with respect to the project; thereafter, the amount of annual minimum return of invested capital will be revised to equal the amount determined pursuant to the applicable management and pooling agreements. We and SNH also agreed that the commencement of the measurement period for determining whether the specified annual minimum return under the applicable management and pooling agreements has been achieved will be deferred until 12 months after a certificate of occupancy is issued with respect to the project.

For further information regarding our leases and management agreements and other transactions with SNH, see Notes 10, 12 and 13 to our condensed consolidated financial statements included in Part I, Item 1 of this Quarterly Report, and Notes 9, 11, 13 and 16 to our consolidated financial statements included in Part IV, Item 15 of our Annual Report.

Our Revenues
 
Our revenues from services to residents at our senior living communities are our primary source of cash to fund our operating expenses, including rent, capital expenditures (net of capital improvements that we sell to SNH for increased rent pursuant to our leases with SNH) and principal and interest payments on our debt.

Certain industry trends have negatively affected our revenues and business, and may continue to do so. See "—General Industry Trends" in Part I, Item 2 of this Quarterly Report for further information regarding general industry trends.

The majority of our senior living revenue comes from residents who pay privately for our services. However, some of our senior living communities (principally our SNFs) and our outpatient rehabilitation clinics, Medicare and Medicaid programs provide operating revenues for skilled nursing and rehabilitation services. We derived approximately 22.2% and 21.6% of our consolidated revenues from continuing operations from these government funded programs during the nine months ended September 30, 2017 and 2016 , respectively. Our net Medicare revenues from services to senior living community residents from continuing operations totaled $83.5 million and $83.2 million during the nine months ended September 30, 2017 and 2016 , respectively. Our net Medicaid revenues from services to senior living community residents from continuing operations totaled $98.4 million and $93.9 million during the nine months ended September 30, 2017 and 2016 , respectively. 


28


Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations



On September 13, 2017, members of the U.S. Congress introduced the Graham-Cassidy-Heller-Johnson bill, or GCHJ, with the announced intention to repeal and replace major provisions of the Patient Protection and Affordable Care Act, or the ACA. Although it is unclear whether GCHJ will ultimately become law, attempts to repeal or to repeal and replace the ACA will likely continue. In addition, on October 12, 2017, President Trump signed an executive order directing federal agencies to reduce limits on association health plans and temporary insurance plans, allowing more widespread offerings of plans that do not adhere to all of the ACA’s mandates, and to permit workers to use funds from tax advantaged accounts to pay for their own coverage. On the same day, the Trump Administration also announced that it would stop paying what are known as cost sharing reduction subsidies to issuers of qualified health plans under the ACA. It is unclear what the result of any of these legislative, executive and regulatory reform efforts may be or the effect they may have on us, if any.

On September 20, 2017, the Centers for Medicare & Medicaid Services, or CMS, through its Innovation Center, issued a request for information seeking reactions from stakeholders regarding new approaches to promote patient centered care and test market driven reforms intended to empower Medicare and Medicaid beneficiaries as consumers, provide price transparency, increase choices and competition to improve quality, reduce cost and improve outcomes. In particular, CMS indicated that the Innovation Center is interested in testing models in eight focus areas, including increased participation in advanced alternative payment models; consumer directed care and market based innovation models; state based and local innovation, including Medicaid focused models; and program integrity models. CMS is accepting responses to its information request through November 20, 2017.

On August 24, 2017, the OIG issued an early alert regarding preliminary results of its ongoing review of potential abuse or neglect of Medicare beneficiaries in SNFs. As a result of the review, which is part of the ongoing efforts of the OIG to detect and combat elder abuse, the OIG concluded that CMS has inadequate procedures to ensure that incidents of potential abuse or neglect of beneficiaries residing in SNFs are identified and reported. The OIG provided suggestions for immediate actions that CMS can take to ensure better protection of beneficiaries. It is unclear what policy changes or oversight efforts CMS will undertake as a result of this early alert.

Because of shifting policy priorities, the current and projected federal budget deficit, other federal spending priorities and challenging fiscal conditions in some states, there have been numerous recent legislative and regulatory actions or proposed actions with respect to federal Medicare rates, state Medicaid rates and federal payments to states for Medicaid programs. We cannot currently predict the type and magnitude of the potential Medicare and Medicaid policy changes, rate changes or other changes that may be implemented, but we believe that some of these changes will cause these government funded healthcare programs to fail to provide rates that match our increasing expenses, and that such changes may be material and adverse to our operations and to our future financial results.

For further information regarding the government healthcare funding and regulation of our business, see the sections captioned “Business—Government Regulation and Reimbursement” in Part I, Item I and “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Our Revenues” in Part II, Item 7 of our Annual Report and the section captioned “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Our Revenues” in Part I, Item 2 of our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2017 and June 30, 2017.

Off Balance Sheet Arrangements

Certain of our assets, related to our operation of 17 communities we lease from SNH, were pledged as collateral for SNH’s borrowings from its lender, FNMA. On April 28, 2017, SNH prepaid those borrowings and, as a result, our assets are no longer pledged as collateral. As of September 30, 2017 , we had no off balance sheet arrangements that have had or that we expect would be reasonably likely to have a future material effect on our financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources.

Debt Financings and Covenants

In February 2017, we replaced our prior $100.0 million secured revolving credit facility, which was scheduled to mature in April 2017, with our current $100.0 million secured revolving credit facility. The terms of our credit facility are substantially similar to those of our prior credit facility. We are required to pay interest at the rate based on, at our option, LIBOR or a base rate, plus a premium, or 3.73% and 5.75%, respectively, per annum as of September 30, 2017 , on outstanding borrowings under our credit facility. We are also required to pay a quarterly commitment fee of 0.35% per annum on the unused part of the available borrowings under our credit facility. As of September 30, 2017 , we had $5.0 million of borrowings outstanding, letters of credit issued under our credit facility in an aggregate amount of $2.7 million and  $45.6 million in aggregate principal amount of outstanding mortgage debts. As of September 30, 2017 , we believe we were in compliance with all applicable

29


Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations



covenants under our debt agreements. As of November 8, 2017 , we had $15.0 million of borrowings outstanding, letters of credit issued under our credit facility in an aggregate amount of $2.7 million and $82.3 million available for borrowing under our credit facility. In November 2017, we entered an agreement to sell six senior living communities to SNH for an aggregate sales price of approximately $104.0 million , including $2.4 million of mortgage debt that will be prepaid at closing with proceeds from the sale and SNH's assumption of approximately $33.7 million of mortgage debt securing certain of these senior living communities. These sales are subject to conditions, including mortgagee approvals and licensing; accordingly, we may not sell these senior living communities, these sales may be delayed beyond the first quarter of 2018 or the terms may change. For further information regarding this agreement and transactions, see Note 10 to our condensed consolidated financial statements included in Part I, Item 1 of this Quarterly Report and elsewhere in Part I, Item 2 of this Quarterly Report, including "—Our Leases and Management Agreements with SNH".

For further information regarding our debt financings and covenants, see Note 8 to our condensed consolidated financial statements in Part I, Item 1 of this Quarterly Report.

Related Person Transactions

We have relationships and historical and continuing transactions with SNH, RMR LLC, ABP Trust, AIC and others related to them. For example: SNH is our former parent company, our largest landlord, the owner of the senior living communities that we manage and the owner of 8.5% of our outstanding common shares; various services we require to operate our business are provided to us by RMR LLC pursuant to our business management agreement with RMR LLC and RMR LLC also provides management services to SNH; RMR LLC employs our President and Chief Executive Officer, our Chief Financial Officer and Treasurer and our Senior Vice President and General Counsel; one of our Managing Directors, Barry Portnoy, and his son, Adam Portnoy, in aggregate beneficially own, directly and indirectly, 36.7% of our common shares, and a subsidiary of ABP Trust, an entity owned by them, is the landlord for our headquarters; and ABP Trust is the controlling shareholder of The RMR Group Inc., or RMR Inc., which is the managing member of RMR LLC. We also have relationships and historical and continuing transactions with other companies to which RMR LLC provides management services and which may have directors, trustees and officers who are also directors, trustees or officers of us, SNH, RMR LLC or RMR Inc., including: D&R Yonkers LLC, which is owned by our Chief Financial Officer and Treasurer and SNH’s president and chief operating officer and to which we provide management services; and AIC, of which we, ABP Trust, SNH and four other companies to which RMR LLC provides management services each own 14.3% and which arranges and reinsures in part a combined property insurance program for us and its six other shareholders. 

For further information about these and other such relationships and related person transactions, see Notes 10, 11, 12 and 13 to our condensed consolidated financial statements included in Part I, Item 1 of this Quarterly Report, our Annual Report, our definitive Proxy Statement for our 2017 Annual Meeting of Stockholders and our other filings with the Securities and Exchange Commission, or SEC. In addition, see the section captioned “Risk Factors” in Part I, Item 1A of our Annual Report for a description of risks that may arise as a result of these and other related person transactions and relationships. Our filings with the SEC and copies of certain of our agreements with these related persons, including our business management agreement with RMR LLC, our various agreements with SNH and our shareholders agreement with AIC and its six other shareholders, are available as exhibits to our filings with the SEC and accessible at the SEC’s website, www.sec.gov . We may engage in additional transactions with related persons, including businesses to which RMR LLC or its affiliates provide management services.  

Seasonality

Our senior living business is subject to modest effects of seasonality. During the calendar fourth quarter holiday periods, residents at our senior living communities are sometimes discharged to spend time with family and admission decisions are often deferred. The first quarter of each calendar year usually coincides with increased illness among residents which can result in increased costs or discharges to hospitals. As a result of these and other factors, our senior living communities sometimes produce better operating results in the second and third quarters of a calendar year and worse operating results in the fourth and first calendar quarters. We do not expect these seasonal differences to cause fluctuations in our revenues or operating cash flows to such an extent that we will have difficulty paying our expenses, including rent, which do not fluctuate seasonally.

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Item 3.  Quantitative and Qualitative Disclosures About Market Risk
For quantitative and qualitative disclosures about market risk affecting us, see the section captioned “Quantitative and Qualitative Disclosures About Market Risk” in Part II, Item 7A of our Annual Report.  Our exposure to market risks has not changed materially from that set forth in our Annual Report.

Item 4. Controls and Procedures

As of the end of the period covered by this report, our management carried out an evaluation, under the supervision and with the participation of our President and Chief Executive Officer and our Chief Financial Officer and Treasurer, of the effectiveness of our disclosure controls and procedures pursuant to Rules 13a-15 and 15d-15 under the Securities Exchange Act of 1934, as amended.  Based upon that evaluation, our management, including our President and Chief Executive Officer and our Chief Financial Officer and Treasurer, concluded that our disclosure controls and procedures are effective.
 
There have been no changes in our internal control over financial reporting during the quarter ended September 30, 2017 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

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WARNING CONCERNING FORWARD LOOKING STATEMENTS
 
THIS QUARTERLY REPORT CONTAINS STATEMENTS THAT CONSTITUTE FORWARD LOOKING STATEMENTS WITHIN THE MEANING OF THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995 AND OTHER SECURITIES LAWS.  ALSO, WHENEVER WE USE WORDS SUCH AS “BELIEVE”, “EXPECT”, “ANTICIPATE”, “INTEND”, “PLAN”, “ESTIMATE”, “WILL”, “MAY” AND NEGATIVES OR DERIVATIVES OF THESE OR SIMILAR EXPRESSIONS, WE ARE MAKING FORWARD LOOKING STATEMENTS.  THESE FORWARD LOOKING STATEMENTS ARE BASED UPON OUR PRESENT INTENT, BELIEFS OR EXPECTATIONS, BUT FORWARD LOOKING STATEMENTS ARE NOT GUARANTEED TO OCCUR AND MAY NOT OCCUR.  FORWARD LOOKING STATEMENTS IN THIS REPORT RELATE TO VARIOUS ASPECTS OF OUR BUSINESS, INCLUDING:
 
OUR ABILITY TO OPERATE OUR SENIOR LIVING COMMUNITIES PROFITABLY,
OUR ABILITY TO COMPLY AND TO REMAIN IN COMPLIANCE WITH APPLICABLE MEDICARE, MEDICAID AND OTHER FEDERAL AND STATE REGULATORY, RULE MAKING AND RATE SETTING REQUIREMENTS,
OUR ABILITY TO MEET OUR RENT AND DEBT OBLIGATIONS,
OUR ABILITY TO RAISE EQUITY OR DEBT CAPITAL,
 
OUR ABILITY TO EFFECTIVELY COMPETE FOR ACQUISITIONS AND TO OPERATE ADDITIONAL OWNED, LEASED OR MANAGED SENIOR LIVING COMMUNITIES,

OUR ABILITY TO SELL COMMUNITIES WE OFFER FOR SALE,
 
THE FUTURE AVAILABILITY OF BORROWINGS UNDER OUR CREDIT FACILITY,
OUR EXPECTATION THAT WE BENEFIT FROM OUR OWNERSHIP OF AIC AND FROM OUR PARTICIPATION IN INSURANCE PROGRAMS ARRANGED BY AIC,
 
THE IMPACT OF THE ACA, INCLUDING CURRENT PROPOSALS TO REPEAL OR TO REPEAL AND REPLACE THE ACA, AND OTHER EXISTING OR PROPOSED LEGISLATION OR REGULATIONS ON US, AND
OTHER MATTERS.
 
OUR ACTUAL RESULTS MAY DIFFER MATERIALLY FROM THOSE CONTAINED IN OR IMPLIED BY OUR FORWARD LOOKING STATEMENTS AS A RESULT OF VARIOUS FACTORS. FACTORS THAT COULD HAVE A MATERIAL ADVERSE EFFECT ON OUR FORWARD LOOKING STATEMENTS AND UPON OUR BUSINESS, RESULTS OF OPERATIONS, FINANCIAL CONDITION, CASH FLOWS, LIQUIDITY AND PROSPECTS INCLUDE, BUT ARE NOT LIMITED TO:
 
CHANGES IN MEDICARE OR MEDICAID POLICIES, INCLUDING THOSE THAT MAY RESULT FROM THE IMPACT OF THE ACA, INCLUDING CURRENT PROPOSALS TO REPEAL OR TO REPEAL AND REPLACE THE ACA, AND OTHER EXISTING OR PROPOSED LEGISLATION OR REGULATIONS, WHICH COULD RESULT IN REDUCED MEDICARE OR MEDICAID RATES OR A FAILURE OF SUCH RATES TO COVER OUR COSTS OR LIMIT THE SCOPE OR FUNDING OF EITHER OR BOTH PROGRAMS,
THE IMPACT OF CONDITIONS AND CHANGES IN THE ECONOMY AND THE CAPITAL MARKETS ON US AND OUR RESIDENTS AND OTHER CUSTOMERS,
COMPETITION WITHIN THE SENIOR LIVING SERVICES BUSINESS,
INCREASES IN TORT AND INSURANCE LIABILITY COSTS,
INCREASES IN OUR LABOR COSTS OR IN COSTS WE PAY FOR GOODS AND SERVICES,
ACTUAL AND POTENTIAL CONFLICTS OF INTEREST WITH OUR RELATED PARTIES, INCLUDING OUR MANAGING DIRECTORS, SNH, RMR LLC, ABP TRUST, AIC AND OTHERS AFFILIATED WITH THEM,

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DELAYS OR NONPAYMENTS OF GOVERNMENT PAYMENTS TO US THAT COULD RESULT FROM GOVERNMENT SHUTDOWNS OR OTHER CIRCUMSTANCES,
COMPLIANCE WITH, AND CHANGES TO, FEDERAL, STATE AND LOCAL LAWS AND REGULATIONS THAT COULD AFFECT OUR SERVICES OR IMPOSE REQUIREMENTS, COSTS AND ADMINISTRATIVE BURDENS THAT MAY REDUCE OUR ABILITY TO PROFITABLY OPERATE OUR BUSINESS, AND
ACTS OF TERRORISM, OUTBREAKS OF SO CALLED PANDEMICS OR OTHER MANMADE OR NATURAL DISASTERS BEYOND OUR CONTROL.

FOR EXAMPLE:
THE VARIOUS FEDERAL AND STATE GOVERNMENT AGENCIES WHICH PAY US FOR THE SERVICES WE PROVIDE TO SOME OF OUR RESIDENTS ARE CURRENTLY EXPERIENCING BUDGETARY CONSTRAINTS AND MAY LOWER THE MEDICARE, MEDICAID AND OTHER RATES THEY PAY US. BECAUSE WE OFTEN CANNOT LOWER THE QUALITY OF THE SERVICES WE PROVIDE TO MATCH THE AVAILABLE MEDICARE, MEDICAID AND OTHER RATES WE ARE PAID, WE MAY EXPERIENCE LOSSES AND SUCH LOSSES MAY BE MATERIAL,
WE EXPECT TO ENTER ADDITIONAL LEASE OR MANAGEMENT ARRANGEMENTS WITH SNH FOR ADDITIONAL SENIOR LIVING COMMUNITIES THAT SNH OWNS OR MAY ACQUIRE IN THE FUTURE. HOWEVER, WE CANNOT BE SURE THAT WE WILL ENTER ANY ADDITIONAL LEASES, MANAGEMENT ARRANGEMENTS OR OTHER TRANSACTIONS WITH SNH,
OUR ABILITY TO OPERATE NEW SENIOR LIVING COMMUNITIES PROFITABLY DEPENDS UPON MANY FACTORS, INCLUDING OUR ABILITY TO INTEGRATE NEW COMMUNITIES INTO OUR EXISTING OPERATIONS, AS WELL AS SOME FACTORS WHICH ARE BEYOND OUR CONTROL SUCH AS THE DEMAND FOR OUR SERVICES ARISING FROM ECONOMIC CONDITIONS GENERALLY AND COMPETITION FROM OTHER PROVIDERS OF SENIOR LIVING SERVICES. WE MAY NOT BE ABLE TO SUCCESSFULLY INTEGRATE, OPERATE, COMPETE AND PROFITABLY MANAGE NEW COMMUNITIES,
OUR BELIEF THAT THE AGING OF THE U.S. POPULATION AND INCREASING LIFE SPANS OF SENIORS WILL INCREASE DEMAND FOR SENIOR LIVING COMMUNITIES AND SERVICES MAY NOT BE REALIZED OR MAY NOT RESULT IN INCREASED DEMAND FOR OUR SERVICES,
AT SEPTEMBER 30, 2017, WE HAD $8.7  MILLION OF UNRESTRICTED CASH AND CASH EQUIVALENTS AND $92.3 MILLION AVAILABLE FOR BORROWING UNDER OUR CREDIT FACILITY. IN ADDITION, WE HAVE SOLD IMPROVEMENTS TO SNH IN THE PAST AND EXPECT TO REQUEST TO SELL ADDITIONAL IMPROVEMENTS TO SNH FOR INCREASED RENT PURSUANT TO OUR LEASES WITH SNH. THESE STATEMENTS MAY IMPLY THAT WE HAVE SUFFICIENT CASH LIQUIDITY. HOWEVER, OUR OPERATIONS AND BUSINESS REQUIRE SIGNIFICANT AMOUNTS OF WORKING CASH AND REQUIRE US TO MAKE SIGNIFICANT CAPITAL EXPENDITURES TO MAINTAIN OUR COMPETITIVENESS. FURTHER, SNH IS NOT OBLIGATED TO PURCHASE IMPROVEMENTS WE MAY MAKE TO THE LEASED COMMUNITIES. ACCORDINGLY, WE MAY NOT HAVE SUFFICIENT CASH LIQUIDITY,

CIRCUMSTANCES THAT ADVERSELY AFFECT THE ABILITY OF SENIORS OR THEIR FAMILIES TO PAY FOR OUR SERVICES, SUCH AS ECONOMIC DOWNTURNS, WEAK HOUSING MARKET CONDITIONS, HIGHER LEVELS OF UNEMPLOYMENT AMONG OUR RESIDENTS' OR POTENTIAL RESIDENTS' FAMILY MEMBERS, LOWER LEVELS OF CONSUMER CONFIDENCE, STOCK MARKET VOLATILITY AND/OR CHANGES IN DEMOGRAPHICS GENERALLY COULD AFFECT THE PROFITABILITY OF OUR SENIOR LIVING COMMUNITIES,
RESIDENTS WHO PAY FOR OUR SERVICES WITH THEIR PRIVATE RESOURCES MAY BECOME UNABLE TO AFFORD OUR SERVICES, RESULTING IN DECREASED OCCUPANCY AND DECREASED REVENUES AT OUR SENIOR LIVING COMMUNITIES AND OUR INCREASED RELIANCE ON LOWER RATES FROM GOVERNMENT AGENCIES AND OTHER PAYERS,
WE MAY BE UNABLE TO REPAY OUR DEBT OBLIGATIONS WHEN THEY BECOME DUE,

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THE OPTIONS TO EXTEND THE MATURITY DATE OF OUR CREDIT FACILITY ARE SUBJECT TO OUR PAYMENT OF EXTENSION FEES AND MEETING OTHER CONDITIONS, BUT THE APPLICABLE CONDITIONS MAY NOT BE MET,
ACTUAL COSTS UNDER OUR CREDIT FACILITY WILL BE HIGHER THAN LIBOR PLUS A PREMIUM BECAUSE OF OTHER FEES AND EXPENSES ASSOCIATED WITH OUR CREDIT FACILITY,
THE AMOUNT OF AVAILABLE BORROWINGS UNDER OUR CREDIT FACILITY IS SUBJECT TO OUR HAVING QUALIFIED COLLATERAL, WHICH IS PRIMARILY BASED ON THE VALUE OF THE ASSETS SECURING OUR OBLIGATIONS UNDER OUR CREDIT FACILITY. ACCORDINGLY, THE MAXIMUM AVAILABILITY OF BORROWINGS UNDER OUR CREDIT FACILITY AT ANY TIME MAY BE LESS THAN $100.0 MILLION.  ALSO, THE AVAILABILITY OF BORROWINGS UNDER OUR CREDIT FACILITY IS SUBJECT TO OUR SATISFYING CERTAIN FINANCIAL COVENANTS AND OTHER CONDITIONS THAT WE MAY BE UNABLE TO SATISFY,
WE HAVE VOLUNTARILY DISCLOSED CERTAIN MEDICARE BILLING DEFICIENCIES RELATED TO DOCUMENTATION AND OTHER MATTERS AT ONE OF OUR SNFs TO THE OIG AND WE HAVE INFORMED THE OIG THAT WE EXPECT OUR INVESTIGATION AND ASSESSMENT OF THESE MATTERS TO BE COMPLETED BY DECEMBER 2017; HOWEVER, WE CANNOT BE SURE THAT OUR INVESTIGATION AND ASSESSMENT OF THESE MATTERS WILL BE COMPLETED BY THAT DATE. FURTHER, WE HAVE DETERMINED THAT A LOSS IN CONNECTION WITH THIS MATTER IS POSSIBLE, BUT CANNOT BE REASONABLY ESTIMATED AT THIS TIME. SUCH LOSS COULD HAVE A MATERIAL ADVERSE IMPACT ON OUR BUSINESS, FINANCIAL CONDITION AND RESULTS OF OPERATIONS. ALSO, DURING OUR ONGOING INVESTIGATION AND ASSESSMENT OF THESE MATTERS WE MAY LEARN OF ADDITIONAL COMPLIANCE DEFICIENCIES THAT COULD RESULT IN ADDITIONAL PAYMENT OBLIGATIONS THAT WE OWE,
CONTINGENCIES IN OUR AND SNH’S APPLICABLE ACQUISITION AND SALE AGREEMENTS MAY NOT BE SATISFIED AND OUR AND SNH'S APPLICABLE PENDING ACQUISITIONS AND SALES AND ANY RELATED LEASE OR MANAGEMENT AGREEMENTS WE MAY EXPECT TO ENTER MAY NOT OCCUR, MAY BE DELAYED OR THE TERMS OF SUCH TRANSACTIONS OR ARRANGEMENTS MAY CHANGE,
WE HAVE ENTERED AN AGREEMENT TO SELL SIX SENIOR LIVING COMMUNITIES TO SNH FOR APPROXIMATELY $104.0 MILLION, INCLUDING $2.4 MILLION OF MORTGAGE DEBT THAT WILL BE PREPAID AT CLOSING WITH PROCEEDS FROM THE SALE AND SNH'S ASSUMPTION OF APPROXIMATELY $33.7 MILLION OF MORTGAGE DEBT AND EXCLUDING CLOSING COSTS, AND WE EXPECT TO ENTER MANAGEMENT AND POOLING ARRANGEMENTS WITH SNH TO MANAGE THESE SENIOR LIVING COMMUNITIES. THESE SALES ARE SUBJECT TO CONDITIONS. THESE CONDITIONS MAY NOT BE MET AND THESE SALES AND RELATED MANAGEMENT AND POOLING ARRANGEMENTS MAY NOT OCCUR, MAY BE DELAYED BEYOND THE FIRST QUARTER OF 2018 OR THEIR TERMS MAY CHANGE,
WE MAY NOT BE ABLE TO SELL PROPERTIES THAT WE MAY SEEK TO SELL ON TERMS ACCEPTABLE TO US OR OTHERWISE,
WE BELIEVE THAT OUR RELATIONSHIPS WITH OUR RELATED PARTIES, INCLUDING SNH, RMR LLC, ABP TRUST, AIC AND OTHERS AFFILIATED WITH THEM MAY BENEFIT US AND PROVIDE US WITH COMPETITIVE ADVANTAGES IN OPERATING AND GROWING OUR BUSINESS. HOWEVER, THE ADVANTAGES WE BELIEVE WE MAY REALIZE FROM THESE RELATIONSHIPS MAY NOT MATERIALIZE, AND
OUR SENIOR LIVING COMMUNITIES ARE SUBJECT TO EXTENSIVE GOVERNMENT REGULATION, LICENSURE AND OVERSIGHT. WE SOMETIMES EXPERIENCE DEFICIENCIES IN THE OPERATION OF OUR SENIOR LIVING COMMUNITIES, AND SOME OF OUR COMMUNITIES MAY BE PROHIBITED FROM ADMITTING NEW RESIDENTS, OR OUR LICENSE TO CONTINUE OPERATIONS AT A COMMUNITY MAY BE REVOKED. ALSO, OPERATING DEFICIENCIES OR A LICENSE REVOCATION AT ONE OR MORE OF OUR SENIOR LIVING COMMUNITIES MAY HAVE AN ADVERSE IMPACT ON OUR ABILITY TO OBTAIN LICENSES FOR, OR ATTRACT RESIDENTS TO, OUR OTHER COMMUNITIES.

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CURRENTLY UNEXPECTED RESULTS COULD OCCUR DUE TO MANY DIFFERENT CIRCUMSTANCES, SOME OF WHICH ARE BEYOND OUR CONTROL, SUCH AS ACTS OF TERRORISM, NATURAL DISASTERS, CHANGED MEDICARE OR MEDICAID RATES, NEW LEGISLATION, REGULATIONS OR RULE MAKING AFFECTING OUR BUSINESS, OR CHANGES IN CAPITAL MARKETS OR THE ECONOMY GENERALLY.
 
THE INFORMATION CONTAINED ELSEWHERE IN THIS QUARTERLY REPORT AND IN OUR ANNUAL REPORT OR IN OUR OTHER FILINGS WITH THE SEC, INCLUDING UNDER THE CAPTION “RISK FACTORS”, OR INCORPORATED HEREIN OR THEREIN, IDENTIFIES OTHER IMPORTANT FACTORS THAT COULD CAUSE DIFFERENCES FROM OUR FORWARD LOOKING STATEMENTS. OUR FILINGS WITH THE SEC ARE AVAILABLE ON THE SEC’S WEBSITE AT WWW.SEC.GOV.
 
YOU SHOULD NOT PLACE UNDUE RELIANCE UPON OUR FORWARD LOOKING STATEMENTS.

EXCEPT AS REQUIRED BY LAW, WE DO NOT INTEND TO UPDATE OR CHANGE ANY FORWARD LOOKING STATEMENTS AS A RESULT OF NEW INFORMATION, FUTURE EVENTS OR OTHERWISE.


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PART II.  Other Information

Item 1. Legal Proceedings
 
There have been no material developments in our legal proceedings from those disclosed in our Annual Report.

Item 1A. Risk Factors

There have been no material changes to the risk factors from those we previously disclosed in our Annual Report except as follows:

Our business is subject to extensive regulation which increases our costs and may result in losses.

Licensing and Medicare and Medicaid laws require operators of senior living communities and rehabilitation and wellness clinics to comply with extensive standards governing operations and physical environments. Federal and state laws also prohibit fraud and abuse by senior living providers and rehabilitation and wellness clinic operators, including civil and criminal laws that prohibit false claims and regulate patient referrals in Medicare, Medicaid and other payer programs. In recent years, federal and state governments have devoted increased resources to monitoring the quality of care at senior living communities and to anti‑fraud investigations in healthcare generally. CMS contractors are expanding the retroactive audits of Medicare claims submitted by SNFs and other providers, and recouping alleged overpayments for services determined by auditors not to have been medically necessary or not to meet Medicare coverage criteria as billed. State Medicaid programs and other third party payers are conducting similar medical necessity and compliance audits. When federal or state agencies identify violations of anti‑fraud, false claims, anti‑kickback and physician referral laws, they may impose or seek civil or criminal penalties, treble damages and other government sanctions, and may revoke the community’s license or make conditional or exclude the community from Medicare or Medicaid participation. The ACA amended the federal Anti‑Kickback Statute and the False Claims Act, making it easier for government agencies and private plaintiffs to prevail in lawsuits brought against healthcare providers, and for severe fines and penalties to be imposed on healthcare providers that violate applicable laws and regulations. In addition, when these agencies determine that there has been quality of care deficiencies or improper billing, they may impose or seek various remedies or sanctions, including denial of new admissions, exclusion from Medicare or Medicaid program participation, monetary penalties, restitution of overpayments, government oversight, temporary management, loss of licensure and criminal penalties. Current state laws and regulations allow enforcement officials to make determinations as to whether the care provided at our communities exceeds the level of care for which a particular community is licensed. A finding that a community is delivering care beyond the scope of its license could result in closure of the facility and the immediate discharge and transfer of residents. Certain states and the federal government may determine that citations relating to one community affect other communities operated by the same entity or related entities, which may negatively impact an operator’s ability to maintain or renew other licenses or Medicare or Medicaid certifications or to secure new licenses or certifications. In addition, revocation of a license or certification at one community could impact our ability to obtain new licenses or certifications or to maintain or renew existing licenses and certifications at other communities, and trigger defaults under our leases, our management agreements with SNH and our new credit facility, or adversely affect our ability to operate or obtain financing in the future.

Our communities incur sanctions and penalties from time to time. As a result of the healthcare industry’s extensive regulatory system and increasing enforcement initiatives, we have experienced increased costs for monitoring quality of care compliance, billing procedures and compliance with referral laws and other laws that apply to us, and we expect these costs may continue to increase. For example, as disclosed elsewhere in this Quarterly Report, as a result of our compliance program to review records related to our Medicare billing practices, during 2017 we became aware of certain potential inadequate documentation and other possible failures to comply with appropriate policies at one of our leased SNFs. This compliance review was not initiated in response to any specific complaint or allegation, but was a review of the type that we periodically undertake to test our own compliance with applicable Medicare billing rules. As a result of these discoveries, we have made a voluntary disclosure of deficiencies to the OIG pursuant to the OIG's Provider Self-Disclosure Protocol. While our assessment of these matters is ongoing, we have informed the OIG that we expect our assessment to be completed by December 2017. We have determined that a loss in connection with this matter is possible, but cannot be reasonably estimated at this time.

The revenues we receive from Medicare and Medicaid may be subject to statutory and regulatory changes, retroactive rate adjustments, recovery of program overpayments or set offs, administrative rulings and policy interpretations, and payment delays. If we become subject to additional regulatory sanctions or repayment obligations at any of our existing communities (or at any of our newly acquired communities with prior deficiencies that we are unable to correct or resolve), our business may be adversely affected, and we might experience financial losses. Any adverse determination concerning any of our licenses or eligibility for Medicare or Medicaid reimbursement or any penalties, repayments, or sanctions, and the increasing costs of

36




required compliance with applicable federal and state laws, may adversely affect our ability to meet our financial obligations and negatively affect our financial condition and results of operations.  

Item 5. Other Information

On November 8, 2017, we entered a transaction agreement with SNH pursuant to which we agreed to sell six senior living communities we own to SNH. We will enter management and pooling agreements with SNH as we sell these communities to manage these senior living communities. The aggregate sales price for these six senior living communities is approximately $104.0 million , including, as of September 30, 2017, $2.4 million of mortgage debt that will be prepaid at closing with proceeds from the sale and SNH’s assumption of approximately $33.7 million of mortgage debt securing certain of these senior living communities and excluding closing costs. The transaction agreement includes certain conditions to our sales of these senior living communities, including receipt of any applicable lender and regulatory approvals. We expect to complete these sales as third party approvals are received between now and the end of the first quarter of 2018; however, the conditions to our sales of these senior living communities may not be met and some or all of these sales and related management and pooling arrangements may not occur, may be delayed or the terms may change.

The management agreements we and SNH will enter in connection with our sales of these senior living communities will be combined pursuant to two new pooling agreements to be entered between us and SNH. The first new pooling agreement will combine the management agreements for five of these senior living communities. Pursuant to the terms of the management and pooling agreements to be entered for these five senior living communities, SNH will pay us a management fee equal to 5% of the gross revenues realized at these communities plus reimbursement for our direct costs and expenses related to our operation of these communities, as well as an annual incentive fee equal to 20% of the annual net operating income of these communities remaining after SNH realizes an annual minimum return equal to 7% of its invested capital for these senior living communities. The second new pooling agreement will include one management agreement for a senior living community that is subject to an ongoing construction, expansion and development project. The terms of the management and pooling agreements to be entered for this senior living community will be substantially the same as the terms of the management and pooling agreements for the other five senior living communities, except that SNH’s annual minimum return on invested capital related to the ongoing construction, expansaion and development project at this community will be an amount equal to the interest rate then applicable to its borrowings under its revolving credit facility plus 2% per annum. This amount of minimum return will apply until the earlier of 12 months after a certificate of occupancy is issued with respect to the project and the third anniversary of our sale of this community; thereafter, the amount of annual minimum return on invested capital related to this project will be 7% of SNH’s invested capital. Also pursuant to the terms of the management and pooling agreements to be entered for these six senior living communities, SNH will pay us a fee for our management of capital expenditure projects at these senior living communities equal to 3% of amounts funded by SNH. The terms of these management and pooling agreements will expire in 2041 and will be subject to automatic renewals, unless earlier terminated or timely notices of nonrenewal are delivered.

Also on November 8, 2017, we entered an amendment to our preexisting pooling agreements with SNH, among other things, to provide that, with respect to SNH's right to terminate all of the management agreements covered by a preexisting pooling agreement if it does not receive its annual minimum return under such agreement in each of three consecutive years, the commencement year for the measurement period for determining whether the specified annual minimum return under the applicable pooling agreement has been achieved will be 2017.

The foregoing descriptions of the transaction agreement and the amendment to our preexisting pooling agreements with SNH are not complete and are qualified in their entirety by reference to the full text of those documents and all exhibits and schedules thereto, copies of which are filed with this Quarterly Report as Exhibits 10.1 and 10.2.

We have relationships and historical and continuing transactions with SNH. For information regarding these relationships and transactions, see Notes 10, 11, 12 and 13 to our condensed consolidated financial statements included in Part I, Item 1 of this Quarterly Report, our Annual Report, our definitive Proxy Statement for our 2017 Annual Meeting of Stockholders and our other filings with the SEC. In addition, see the section captioned “Risk Factors” in Part I, Item 1A of our Annual Report for a description of risks that may arise as a result of these and other related person transactions and relationships. Our filings with the SEC and copies of certain of our agreements with these related persons, including our various agreements with SNH, are available as exhibits to our filings with the SEC and accessible at the SEC’s website, www.sec.gov.


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Item 6. Exhibits

Exhibit
Number
Description
3.1
3.2
3.3
3.4
4.1
4.2
10.1
10.2
31.1
31.2
32.1
101.1
The following materials from the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2017 formatted in XBRL (eXtensible Business Reporting Language): (i) the Condensed Consolidated Balance Sheets, (ii) the Condensed Consolidated Statements of Operations, (iii) the Condensed Consolidated Statements of Comprehensive Loss, (iv) the Condensed Consolidated Statements of Cash Flows and (v) related notes to these financial statements, tagged as blocks of text and in detail. (Filed herewith.)

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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
 
 
 
FIVE STAR SENIOR LIVING INC.
 
/s/ Bruce J. Mackey Jr.
 
Bruce J. Mackey Jr.
 
President and Chief Executive Officer
 
Dated: November 9, 2017
 
 
 
 
 
/s/ Richard A. Doyle
 
Richard A. Doyle
 
Chief Financial Officer and Treasurer
 
(Principal Financial and Accounting Officer)
 
Dated: November 9, 2017


39


Exhibit 10.1

    









TRANSACTION AGREEMENT
by and between
FIVE STAR SENIOR LIVING INC.
and
SENIOR HOUSING PROPERTIES TRUST
NOVEMBER 8, 2017














 
TABLE OF CONTENTS
Page

SECTION 1 DEFINITIONS
1

1.1
Definitions .
1

SECTION 2 TRANSACTIONS
5

2.1
Purchase and Sale of Properties .
5

2.2
TRS Lease .
5

2.3
Manageback of Properties .
5

2.4
Pooling Agreements .
5

SECTION 3 CONDITIONS TO TRANSACTIONS
5

3.1
Transaction Documents .    
5

3.2
Representations .
6

3.3
Title Policy .
6

3.4
Licensing Approval .
6

3.5
Lender Consents / Payoffs .
6

3.6
Condition of Property .
6

3.7
No Material Adverse Change .
6

3.8
Closing on Granite Gate Facility and Granite Gate Lands .
7

SECTION 4 REPRESENTATIONS AND WARRANTIES
7

4.1
FVE Representations and Warranties .
7

4.2
SNH Representations and Warranties .
8

SECTION 5 ADDITIONAL AGREEMENTS
9

5.1
Operation and Maintenance .
9

5.2
Notices .
10

5.3
Employees .
10

5.4
Cooperation .
10

5.5
Access and Information .
10

5.6
Tellico Village Construction Work .
10

5.7
Agreements Related to the Pooling Agreements and Management Agreements .
11

SECTION 6 MISCELLANEOUS
12

6.1
Disputes .
12

6.2
Confidentiality .
14

6.3
Publicity .
15

6.4
Notices .
15

6.5
Waivers, Etc.
16

6.6
Assignment, Successors and Assigns; Third Party Beneficiaries .
16

6.7
Severability .
16

6.8
Counterparts, Etc.
17

6.9
Governing Law .
17

6.10
Expenses .
17

6.11
Section and Other Headings; Interpretation .
17

6.12
SNH NON-LIABILITY OF TRUSTEES .
17

6.13
Entire Agreement .
18

6.14
Survival .
18



i

    
        


Exhibit and Schedule List

Exhibit A-1    – Form of AL Purchase Agreement
Exhibit A-2     – Form of Granite Gate Lands Property Purchase Agreement
Exhibit B    – Form of Management Agreement
Exhibit C-1     – Form of Pooling Agreement Amendment
Exhibit C-2     – Form of Pooling Agreement

Schedule 1 – Properties
Schedule 2 – FVE Sellers, SNH Purchasers, Purchase Prices and Loan Status
Schedule 3 – FVE Disclosure Schedule
Schedule 4 – SNH Disclosure Schedule

ii



TRANSACTION AGREEMENT
THIS TRANSACTION AGREEMENT is made as of November 8, 2017, by and between Five Star Senior Living Inc., a Maryland corporation (“FVE”), on behalf of itself and its subsidiaries, and Senior Housing Properties Trust, a Maryland real estate investment trust (“SNH”), on behalf of itself and its subsidiaries.
PRELIMINARY STATEMENTS
FVE, through its subsidiaries, owns the real properties and improvements thereon comprising the Properties (as defined below), which it currently operates through its subsidiaries as senior living communities.
SNH and FVE wish to enter into a sale and manageback transaction with respect to the Properties and to enter into various agreements with respect to the Properties.
NOW, THEREFORE, it is agreed:
SECTION 1
DEFINITIONS

1.1      Definitions . Capitalized terms used in this Agreement shall have the meanings set forth below:
(1)      AAA ”: the meaning given in Section 6.1.
(2)      Agreement ”: this Transaction Agreement, together with the Schedules and Exhibits hereto, as amended in accordance with the terms hereof.
(3)      AL Property ”: a Property other than the Granite Gate Lands.
(4)      AL Purchase Agreement ”: the meaning given in Section 2.1.
(5)      Arbitration Award ”: the meaning given in Section 6.1.
(6)      Assumed Loan ”: a Loan to be assumed by the applicable SNH Purchaser at the Closing for the Property as identified on Schedule 2 .
(7)      Business Day ”: any day other than Saturday, Sunday, or any other day on which banking institutions in The Commonwealth of Massachusetts are authorized by Law or executive action to close.
(8)      Closing ”: with respect to a Property, the “Closing” as defined in the Purchase Agreement for such Property.
(9)      Closing Date ”: with respect to a Property, the date mutually acceptable to each of FVE and SNH on or after the date that all conditions to the obligations of the



    
        

parties to consummate the purchase and sale of such Property have been satisfied or waived by the party entitled thereto (other than any conditions which by their terms are to be satisfied on the Closing Date), provided , in no event will a Closing Date be later than March 31, 2018.
(10)      Community ”: a senior living community operated on a Property.
(11)      Contracts ”: all contracts and other third party agreements related to the ownership, operation, maintenance, repair, construction or development of a Property, excluding any management agreement previously entered into by a FVE Seller as the owner of a Property.
(12)      Discharged Loan ”: a Loan to be paid off at the Closing for the Property subject to such Loan as identified on Schedule 2 .
(13)      Disputes ”: the meaning given in Section 6.1.
(14)      Entity ”: any corporation, general or limited partnership, limited liability company or partnership, stock company or association, joint venture, association, company, trust, bank, trust company, land trust, business trust, real estate investment trust, cooperative, any government or agency, authority or political subdivision thereof or any other entity.
(15)      Existing Pooling Agreements ”: Pooling Agreements Nos. 1 through 11 among FVE Managers and various subsidiaries of SNH each as in effect as of the date hereof.
(16)      FVE’s Knowledge ”: the actual knowledge of Bruce J. Mackey Jr., Richard A. Doyle, Jr., R. Scott Herzig, Stephen McCray and Katherine E. Potter.
(17)      FVE ”: the meaning given in the preamble to this Agreement.
(18)      FVE Managers ”: FVE Managers, Inc., a Maryland corporation.
(19)      FVE Parties ”: FVE, FVE Managers, the FVE Sellers and any other subsidiaries of FVE that are a party to a Transaction Document.
(20)      FVE Sellers ”: the subsidiaries of FVE listed on Schedule 2 as a FVE Seller.
(21)      Granite Gate Facility ”: the Property identified as the “Granite Gate Facility” on Schedule 1 .
(22)      Granite Gate Lands ”: the Property identified as the “Granite Gate Lands” on Schedule 1 .

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(23)      Granite Gate Lands Purchase Agreement ”: the meaning given in Section 2.1.
(24)      Governmental Authority ”: any court, agency, authority, board (including environmental protection, planning and zoning), bureau, commission, department, office or instrumentality of any nature whatsoever of any governmental or quasi-governmental unit of the United States or any state or any county or any political subdivision of any of the foregoing, whether now or hereafter in existence, having jurisdiction over any SNH Party or FVE Party or any Property, or any portion thereof or the business conducted thereon.
(25)      Laws ”: all laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of any Governmental Authority.
(26)      Lender Consents ”: the meaning given in Section 3.5.
(27)      Licenses and Permits ”: all licenses, permits, consents, authorizations, approvals, registrations and certificates issued by any Governmental Authority with respect to a Property or the construction, development, use, operation, or occupancy of a Property (or any portion thereof).
(28)      Loan ”: any loan, indebtedness or mortgage encumbering any Property.
(29)      Normalized Return Date ”: the earlier to occur of (a) the first anniversary of the first day of the month during which all certificates of occupancy have been issued for the Tellico Village Construction Work or (b) the third anniversary of the Closing Date for the Tellico Village Property.
(30)      Management Agreement ”: the meaning given in Section 2.3.
(31)      Permitted Exceptions ”: with respect to a Property, the “Permitted Exceptions” as defined in the Purchase Agreement for such Property.
(32)      Person ”: any individual or Entity, and the heirs, executors, administrators, legal representatives, successors and assigns of such Person where the context so admits.
(33)      Pooling Agreement ”: the meaning given in Section 2.4.
(34)      Pooling Agreement Amendment ”: the meaning given in Section 2.4.
(35)      Pooling Agreement No. 12 ”: the meaning given in Section 2.4.
(36)      Pooling Agreement No. 13 ”: the meaning given in Section 2.4.

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(37)      Properties ”: collectively, the real properties identified on Schedule 1 , all easements, rights of way, licenses and appurtenances thereto and all buildings, fixtures and other improvements thereon, together with such other assets to be conveyed to the applicable SNH Purchaser as contemplated by the Purchase Agreements.
(38)      Purchase Agreements ”: collectively, the AL Purchase Agreements and the Granite Gate Lands Purchase Agreement.
(39)      Purchase Price ”: with respect to a Property, the amount set forth on Schedule 2 for such Property, subject to such adjustments and prorations as may be provided in the applicable Purchase Agreement for such Property.
(40)      Required Licenses ”: the meaning given in Section 3.4.
(41)      Rules ”: the meaning given in Section 6.1.
(42)      SNH ”: the meaning given in the preamble to this Agreement.
(43)      SNH Parties ”: SNH, the SNH Purchasers and any other subsidiaries of SNH that are a party to a Transaction Document.
(44)      SNH Purchasers ”: the subsidiaries of SNH identified on Schedule 2 as the SNH Purchasers.
(45)      Tellico Village Construction Amount ”: the sum of (1) a portion of the Purchase Price for the Tellico Village Property equal to $1,900,000 plus (2) all costs and expenses of the Tellico Village Construction Work funded by an SNH Party (including (and for the avoidance of doubt, in addition to the amount set forth in clause (1) of this definition) such costs and expenses reimbursed to the applicable FVE Seller as part of the Purchase Price for the Tellico Village Property).
(46)      Tellico Village Construction Contracts ”: (1) that certain AIA Document A102-2007 dated as of May 31, 2017 by and between FSQC Tellico Village LLC and Messer Construction Co., as amended by that certain GMP Amendment dated as November 3, 2017, and (2) that certain AIA Document B103-2007 dated as of November 3, 2014 by and between FSQC Tellico Village LLC and Luckett & Farley Architects, Engineers and Construction Managers, Inc.
(47)      Tellico Village Construction Work ”: the meaning given in Section 5.6.
(48)      Tellico Village Property ”: the Property identified as the “Neighborhood at Tellico Village” on Schedule 1 .
(49)      Transaction Documents ”: this Agreement, the Purchase Agreements, the Pooling Agreements, the Management Agreements, the Pooling Agreement Amendment and all other documents executed in connection therewith or at a Closing.

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(50)      TRS ”: the meaning given in Section 2.2.
(51)      TRS Lease ”: the meaning given in Section 2.2.
SECTION 2
TRANSACTIONS
2.1      Purchase and Sale of Properties . On the terms and conditions of this Agreement and the other Transaction Documents, in consideration of the payment by the applicable SNH Purchaser of the Purchase Price for such Property, on the applicable Closing Date, SNH shall cause the applicable SNH Purchaser to purchase, and FVE will cause the applicable FVE Seller to sell, such Property to such SNH Purchaser. The SNH Purchaser, the FVE Seller and the Purchase Price for each Property are as set forth on Schedule 2 . Contemporaneously with the execution of this Agreement, the applicable SNH Purchaser and FVE Seller will enter into a purchase agreement for the purchase and sale of each AL Property in the form of Exhibit A-1 (each an “AL Purchase Agreement”) and a purchase agreement for the Granite Gate Lands in the form of Exhibit A-2 (the “Granite Gate Lands Purchase Agreement”).
2.2      TRS Lease . The parties acknowledge that upon conveyance of each Property to the applicable SNH Purchaser, such SNH Purchaser intends to enter into a lease of such Property with a subsidiary of SNH (such subsidiary, a “TRS” and such lease, a “TRS Lease”).
2.3      Manageback of Properties . At the Closing for a Property, FVE Managers and the applicable TRS will enter into a management agreement for such Property in the form of Exhibit B (a “Management Agreement”).
2.4      Pooling Agreements . Contemporaneously herewith, the applicable SNH Parties and FVE Managers will execute and deliver a First Amendment to Pooling Agreements with respect to the Existing Pooling Agreements in the form of Exhibit C-1 (the “Pooling Agreement Amendment”). Contemporaneously with the execution of a Management Agreement, such Management Agreement and the applicable Property will be made subject to a pooling agreement in the form of Exhibit C-2 (a “Pooling Agreement”) with all Properties other than the Tellico Village Property under one Pooling Agreement (“Pooling Agreement No. 12”) and the Tellico Village Property under a separate Pooling Agreement (“Pooling Agreement No. 13”). To the extent necessary, each SNH Purchaser and TRS, and FVE Managers will execute and deliver the applicable Pooling Agreement or amendments thereto necessary to reflect the addition of such Management Agreement and Property to such Pooling Agreement on the applicable Closing Date.
SECTION 3
CONDITIONS TO TRANSACTIONS
The obligation of the parties to consummate the purchase and sale of a Property as described in Section 2.1 is subject to the satisfaction of the following conditions on the Closing Date for such Property:

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3.1      Transaction Documents . All Transaction Documents required to have been entered into as of such Closing Date with respect to such Property shall have been entered into and any applicable conditions therein to the consummation of the transactions described in Section 2 with respect to such Property shall have been satisfied or waived by the party entitled to do so thereunder.
3.2      Representations . With respect to the FVE Parties, all representations and warranties of the SNH Parties in this Agreement and in each other Transaction Document entered into, or to be entered into at such Closing, with respect to such Property shall be true, correct and complete in all material respects (or in all respects to the extent qualified by materiality) on and as of such Closing Date, and the SNH Parties shall have performed in all material respects all covenants and obligations required to be performed by them under this Agreement and such Transaction Documents on or before such Closing Date; and, with respect to the SNH Parties, all representations and warranties of the FVE Parties in this Agreement and in each other Transaction Document entered into, or to be entered into at such Closing, with respect to such Property shall be true, correct and complete in all material respects (or in all respects to the extent qualified by materiality) on and as of such Closing Date, and the FVE Parties shall have performed in all material respects all covenants and obligations required to be performed by them under this Agreement and such Transaction Documents on or before such Closing Date.
3.3      Title Policy . With respect to the SNH Parties, the applicable SNH Purchaser shall have received a title policy, or an irrevocable commitment to issue upon payment of the applicable premiums therefor, a title policy, for such Property from Stewart Title Company, insuring fee simple title to such Property is vested in such SNH Purchaser, subject only to the Permitted Exceptions for such Property, with such endorsements as may be reasonably required by SNH and available in the state in which such Property is located.
3.4      Licensing Approval . The applicable SNH Purchaser or TRS shall have obtained all Licenses and Permits from all applicable Governmental Authorities that are required to operate the Community on such Property as currently operated (the “Required Licenses”) or such assurances as may be satisfactory to SNH in its discretion that the Required Licenses will be issued by the applicable Governmental Authority on, or retroactively to, the Closing Date for such Property, which Required Licenses shall be satisfactory to SNH in its reasonable discretion.
3.5      Lender Consents / Payoffs . With respect to a Property subject to an Assumed Loan, all required consents of the applicable lender to the transfer of such Property to the applicable SNH Purchaser and the assumption by such SNH Purchaser of the Assumed Loan shall have been obtained on terms and conditions reasonably satisfactory to SNH (the “Lender Consents”). With respect to a Property subject to a Discharged Loan, the applicable SNH Purchaser shall have received a pay off letter as of the applicable Closing Date from the lender for such Discharged Loan in form and substance reasonably acceptable to SNH and FVE and the applicable FVE Seller shall apply the Purchase Price received by it to the repayment of such Discharged Loan at the applicable Closing.
3.6      Condition of Property . With respect to the SNH Parties, such Property shall be in substantially the same physical condition as it was in on the date of this Agreement, ordinary

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wear and tear, and in the case of the Tellico Village Property, the Tellico Village Construction Work, excepted.
3.7      No Material Adverse Change . With respect to the SNH Parties, no material adverse change shall have occurred at such Property or in the operation of the Community operated at such Property since the date of this Agreement.
3.8      Closing on Granite Gate Facility and Granite Gate Lands . Notwithstanding anything contained in this Agreement or another Transaction Document to the contrary, the Closings for the Granite Gate Facility and the Granite Gate Lands shall occur simultaneously.
SECTION 4
REPRESENTATIONS AND WARRANTIES
4.1      FVE Representations and Warranties . FVE represents and warrants to SNH that:
(1)      Organization . Each FVE Party is duly organized, validly existing and in good standing under the Laws of the state of its jurisdiction of organization or formation and has the requisite power and authority under the laws of such state and its organization documents to conduct its business as now being conducted, to own, operate and lease its properties and assets, and to enter into and perform its obligations under the Transaction Documents to which it is a party and consummate the transactions contemplated by the Transaction Documents.
(2)      Authorization . The execution and delivery by the FVE Parties of the Transaction Documents and the consummation of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary trust, corporate or limited liability company, as applicable, action on the part of the FVE Parties. Each of the Transaction Documents, upon execution and delivery by a FVE Party, will be duly and validly executed by such FVE Party and will constitute its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as such enforcement may be subject to (a) bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar Laws relating to creditors’ rights generally, (b) general principles of equity (whether applied in a proceeding at Law or in equity) and (c) any implied covenant of good faith and fair dealing.
(3)      No Violation . The execution and delivery of the Transaction Documents by the FVE Parties does not, and the consummation of the transactions contemplated by the Transaction Documents will not (a) conflict with, or result in any violation of or default under, any provision of any FVE Party’s organizational documents, (b) conflict with or result in any violation of or default under, any Law or judgment applicable to any FVE Party, or to which any of their properties or assets are subject, or (c) conflict with, or, with or without notice or the lapse of time, result in a breach, termination (or right of termination) or violation of or default under the terms of any agreement, contract, indenture or other instrument to which any FVE Party is a party or subject, or to which any of their properties are subject, except, with respect to the foregoing clauses (b) and

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(c), as set forth in Section 4.1(3) of Schedule 3 or as would not have a material adverse effect on any FVE Party or Property or impair or delay the consummation of any of the transactions contemplated by the Transaction Documents.
(4)      Approvals . The execution and delivery by the FVE Parties of the Transaction Documents and the consummation of the transactions contemplated by the Transaction Documents do not require the consent, approval, order or authorization of any Person under any agreement, contract, indenture or other instrument or applicable Laws to which any FVE Party is a party or to which any FVE Party or any of their properties or assets are subject, except (a) as set forth in Section 4.1(4) of Schedule 3 , (b) filings required under securities Laws, and (c) those the failure of which to receive would not have a material adverse effect on any FVE Party or Property or impair or delay the consummation of any of the transactions contemplated by the Transaction Documents. No declaration, filing or registration with any Governmental Authority is required by any FVE Party in connection with the execution and delivery by the FVE Parties of the Transaction Documents or the consummation of the transactions contemplated by the Transaction Documents, except (a) as set forth in Section 4.1(4) of Schedule 3 , (b) filings required under securities Laws, and (c) those the failure of which to make or file would not have a material adverse effect on any FVE Party or Property or impair or delay the consummation of any of the transactions contemplated by the Transaction Documents.
(5)      Litigation . No investigation, action or proceeding is pending and, to FVE’s Knowledge, no action or proceeding is threatened and no investigation looking toward such an action or proceeding has begun, in respect of FVE or any of its subsidiaries which (a) questions the validity of any of the Transaction Documents or any action taken or to be taken pursuant thereto, (b) will result in any material adverse change in the business, operation, affairs or condition of any FVE Party or any Property, (c) will result in or subject any FVE Party or any Property to a material liability, or (d) involves condemnation or eminent domain proceedings against any Property.
4.2      SNH Representations and Warranties . SNH represents and warrants to FVE that:
(1)      Organization . Each SNH Party is (or will be as of the applicable Closing Date) duly organized, validly existing and in good standing under the Laws of the state of its jurisdiction of organization and with requisite power and authority under the Laws of such state and its organization documents to conduct its business as it is now being conducted and to own, operate or lease its properties and assets and to execute and deliver the Transaction Documents to which it is a party and to perform its obligations thereunder and consummate the transactions contemplated by the Transaction Documents.
(2)      Authorization . The execution and delivery by the SNH Parties of the Transaction Documents and the consummation of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary trust, corporate or limited liability company, as applicable, action. Each of the Transaction Documents, upon execution and delivery by an SNH Party, will be duly and validly executed by such

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SNH Party and will constitute its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as such enforcement may be subject to (a) bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar Laws relating to creditors’ rights generally, (b) general principles of equity (whether applied in a proceeding at Law or in equity) and (c) any implied covenant of good faith and fair dealing.
(3)      No Violation . The execution and delivery of the Transaction Documents by the SNH Parties does not, and the consummation of the transactions contemplated by the Transaction Documents will not (a) conflict with, or result in any violation of or default under, any provision of any SNH Party’s organizational documents, (b) conflict with, or result in any violation of or default under, any Law or judgment applicable to any SNH Party or to which any of their properties are subject, or (c) conflict with, or, with or without notice or the lapse of time, result in a breach, termination (or right of termination) or violation of or default under the terms of any agreement, contract, indenture or other instrument to which any SNH Party is a party or subject or to which any of their properties or assets are subject, except, with respect to the foregoing clauses (b) and (c), as would not have a material adverse effect on any SNH Party or impair or delay the consummation of the transactions contemplated by the Transaction Documents.
(4)      Approvals . The execution and delivery by the SNH Parties of the Transaction Documents and the consummation of the transactions contemplated by the Transaction Documents do not require the consent, approval, order or authorization of any Person under any agreement, contract, indenture or other instrument or applicable Laws to which any SNH Party is a party or which any SNH Party or any of their properties or assets are subject, except (a) as set forth in Section 4.2(4) of Schedule 4 , (b) filings required under securities Laws, and (c) those the failure of which to receive would not have a material adverse effect on any SNH Party or impair or delay the consummation of the transactions contemplated by the Transaction Documents. No declaration, filing or registration with any Governmental Authority is required by any SNH Party in connection with the execution and delivery of the Transaction Documents by the SNH Parties and the consummation of the transactions contemplated by the Transaction Documents except (a) as set forth in Section 4.2(4) of Schedule 4 , (b) filings required under securities Laws, and (c) those the failure of which to make or file would not have a material adverse effect on any SNH Party or impair or delay the consummation of the transactions contemplated by the Transaction Documents.
(5)      Litigation . No investigation, action or proceeding is pending and, to SNH’s knowledge, no action or proceeding is threatened and no investigation looking toward such an action or proceeding has begun, in respect of SNH or any of its subsidiaries which questions the validity of the Transaction Documents or any action taken or to be taken pursuant thereto.

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SECTION 5
ADDITIONAL AGREEMENTS
5.1      Operation and Maintenance . From and after the date of this Agreement until the Closing Date for a Property, the FVE Parties shall (a) operate each Property in a manner consistent with past practices, (b) maintain each Property in good working order and condition in a manner consistent with past practices (subject, in the case of the Tellico Village Property, to the Tellico Village Construction Work), and (c) maintain insurance coverages on each Property of the types, in the amounts and with the deductibles as in effect as of the date of this Agreement (including, in the case of the Tellico Village Property, such commercially reasonable insurance as is customarily carried by owners of property undergoing construction similar in scope to the Tellico Village Construction Work).
5.2      Notices . FVE will promptly notify SNH of (a) any material change in any condition with respect to any Property or of any event or circumstance which could reasonably be expected to make any representation or warranty of any FVE Party under a Transaction Document untrue or misleading in any material respect; and (b) any survey, inspection, audit or other investigation of any Property commenced or threatened by any Governmental Authority.
5.3      Employees . No SNH Party will have any obligation to hire any Person employed by any FVE Party at any Community nor is any SNH Party assuming any liability or obligation for, or expense (except for expense reimbursements expressly contemplated by a Management Agreement) with respect to, and the FVE Parties shall indemnify, defend and hold harmless the SNH Parties from and against, any wages, severance or other employment related obligations, benefits or claims with respect to any employee or former employee of any FVE Party related to, or arising out of, any such person’s employment at a Property prior to the Closing Date with respect to such Property.
5.4      Cooperation . The FVE Parties shall reasonably cooperate with the SNH Parties in connection with obtaining any Required Licenses, the Lender Consents and any other third party consent requested by an SNH Party.
5.5      Access and Information . The FVE Parties shall make available to SNH upon request copies of all files and records relating to the Properties and their operation in their possession or control, including, to the extent permitted by applicable Law, employee, tenant and resident records, Licenses and Permits, title commitments, title reports, title policies and exception documents, surveys, environmental reports or assessments, and tax bills. The FVE Parties shall permit the SNH Parties and their representatives to inspect and perform due diligence with respect to all aspects of the Properties, including, without limitation, inspection of roofs, electrical, mechanical and structural elements, and HVAC systems and soil analysis and environmental investigations; provided, the SNH Parties shall not conduct any invasive or destructive testing without FVE’s prior written consent. Any such inspections shall be performed during normal business hours, with at least one business day’s prior notice, and so as not to unreasonably interfere with the operations of the applicable Communities. FVE or a representative of FVE may accompany the SNH Parties and their representatives during any on site inspection of the Properties. To the extent that an SNH Party or its representatives damage

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any Property during any such on site inspections, such SNH Party shall return such Property to substantially the same condition that it was in immediately prior to such damage. FVE may require an SNH Party to provide evidence of commercial general liability insurance in amounts acceptable to FVE prior to any entry by an SNH Party onto any Property and to require FVE and any other FVE Party to be named as an additional insured on such insurance policy.
5.6      Tellico Village Construction Work . FVE shall use commercially reasonable efforts to cause all activities undertaken and all construction work performed in connection with the construction and development of 91 independent living units in a new three-story building at the Tellico Village Property on the previously undeveloped land adjacent to the existing assisted living and memory care community located on the Tellico Village Property (the “ Tellico Village Construction Work ”) to be performed in accordance with the Tellico Village Construction Contracts and in all material respects with all applicable laws. Without limiting the foregoing, the Tellico Village Construction Work shall be performed in all material respects in accordance with the budget, plans and specifications that were previously delivered to the SNH Parties or as amended with the consent of the SNH Parties.
5.7      Agreements Related to the Pooling Agreements and Management Agreements .
(1)      Capitalized terms used in this Section 5.7 and not otherwise defined in this Agreement are used with the meanings given in the applicable Pooling Agreement and / or Management Agreement.
(2)      Notwithstanding anything in the applicable Management Agreement or Pooling Agreement to the contrary, the out of pocket transaction costs and expenses paid by SNH pursuant to Section 6.10 shall not be included in Invested Capital under a Management Agreement or Aggregate Invested Capital under a Pooling Agreement.
(3)      Notwithstanding anything in the applicable Management Agreement or Pooling Agreement No. 12 to the contrary, with respect to any Management Agreement for a Property that is to be made subject to Pooling Agreement No. 12, if such Management Agreement is entered into after January 1, 2018, the SNH TRS Priority Return due under such Management Agreement for such Property for 2018 shall be pro rated for the actual number of days in 2018 that such Property was subject to such Management Agreement and the Aggregate TRS Priority Return under Pooling Agreement No. 12 due for 2018 shall be determined by including the pro rated amount. For example, if the full year SNH TRS Priority Return for a Property made subject to a Management Agreement on March 31, 2018 were $100, the SNH TRS Priority Return due under the Management Agreement for 2018 would be $75, and $75 would be included in determining the Aggregate TRS Priority Return due under Pooling Agreement No. 12 for 2018.
(4)      Notwithstanding anything in the applicable Management Agreement or Pooling Agreement No. 13 to the contrary,

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(A)      the percentage applicable for determining the SNH TRS Priority Return payable under the Management Agreement for the Tellico Village Property on Invested Capital represented by the Tellico Village Construction Amount shall be the annual interest rate payable by SNH under its revolving credit facility as of the date such amount was paid by the applicable TRS or SNH plus two hundred (200) basis points and for periods commencing on or after the Normalized Return Date, seven percent (7%). The percentage applicable for determining the SNH TRS Priority Return on all other Invested Capital with respect the Tellico Village Property shall be seven percent (7%) as provided in the applicable Management Agreement;
(B)      the first calendar year that may be considered for purposes of determining whether there is a Priority Return Shortfall under of Section 5.01 of Pooling Agreement No. 13 shall be the calendar year commencing on the January 1 st following the Normalized Return Date; and
(C)      the first calendar year that may be considered for the purposes of determining whether FVE Managers has the right to designate the Tellico Village Property as a Non-Economic Facility under Section 5.02 of the Pooling Agreement shall be the calendar year commencing on the January 1 st following the Normalized Return Date.
SECTION 6
MISCELLANEOUS
6.1      Disputes .
(1)      Disputes . Any disputes, claims or controversies between the parties (a) arising out of or relating to the Transaction Documents or the transactions contemplated thereby, or (b) brought by or on behalf of any shareholder of any party or a direct or indirect parent of a party (which, for purposes of this Section 6.1, shall mean any shareholder of record or any beneficial owner of shares of any party, or any former shareholder of record or beneficial owner of shares of any party), either on his, her or its own behalf, on behalf of any party or on behalf of any series or class of shares of any party or shareholders of any party against any party or any member, trustee, director, officer, manager (including The RMR Group LLC or its successor), agent or employee of any party, including disputes, claims or controversies relating to the meaning, interpretation, effect, validity, performance or enforcement of the Transaction Documents, including this arbitration provision, or the declarations of trust, limited liability company agreements, charters, bylaws or other governing documents of any party hereto (all of which are referred to as “Disputes”), or relating in any way to such a Dispute or Disputes shall, on the demand of any party to such Dispute be resolved through binding and final arbitration in accordance with the Commercial Arbitration Rules (the “Rules”) of the American Arbitration Association (“AAA”) then in effect, except as those Rules may be modified in this Section 6.1. For the avoidance of doubt, and not as a limitation, Disputes are intended to include derivative actions against

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trustees, directors, officers or managers of any party and class actions by a shareholder against those individuals or entities and any party. For the avoidance of doubt, a Dispute shall include a Dispute made derivatively on behalf of one party against another party. For purposes of this Section 6.1, the term “party” shall include any direct or indirect parent of a party.
(2)      Selection of Arbitrators . There shall be three (3) arbitrators. If there are only two (2) parties to the Dispute, each party shall select one arbitrator within fifteen (15) days after receipt of a demand for arbitration. Such arbitrators may be affiliated or interested persons of such parties. If there are more than two (2) parties to the Dispute, all claimants, on the one hand, and all respondents, on the other hand, shall each select, by the vote of a majority of the claimants or the respondents, as the case may be, one arbitrator within fifteen (15) days after receipt of a demand for arbitration. Such arbitrators may be affiliated or interested persons of the claimants or the respondents, as the case may be. If either a claimant (or all claimants) or a respondent (or all respondents) fail to timely select an arbitrator then the party (or parties) who has selected an arbitrator may request the AAA to provide a list of three (3) proposed arbitrators in accordance with the Rules (each of whom shall be neutral, impartial and unaffiliated with any party) and the party (or parties) that failed to timely appoint an arbitrator shall have ten (10) days from the date the AAA provides such list to select one of the three (3) arbitrators proposed by AAA. If such party (or parties) fail to select such arbitrator by such time, the party (or parties) who have appointed the first arbitrator shall then have ten (10) days to select one of the three (3) arbitrators proposed by AAA to be the second arbitrator; and, if he/they should fail to select such arbitrator by such time, the AAA shall select, within fifteen (15) days thereafter, one of the three (3) arbitrators it had proposed as the second arbitrator. The two (2) arbitrators so appointed shall jointly appoint the third and presiding arbitrator (who shall be neutral, impartial and unaffiliated with any party) within fifteen (15) days of the appointment of the second arbitrator. If the third arbitrator has not been appointed within the time limit specified herein, then the AAA shall provide a list of proposed arbitrators in accordance with the Rules, and the arbitrator shall be appointed by the AAA in accordance with a listing, striking and ranking procedure, with each party having a limited number of strikes, excluding strikes for cause.
(3)      Location of Arbitration . The place of arbitration shall be Boston, Massachusetts unless otherwise agreed by the parties.
(4)      Scope of Discovery . There shall be only limited documentary discovery of documents directly related to the issues in dispute, as may be ordered by the arbitrators. For the avoidance of doubt, it is intended that there shall be no depositions and no other discovery other than limited documentary discovery as described in the preceding sentence.
(5)      Arbitration Award . In rendering an award or decision (the “Arbitration Award”), the arbitrators shall be required to follow the Laws of the State of Maryland.

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Any arbitration proceedings or Arbitration Award rendered hereunder and the validity, effect and interpretation of this arbitration provision shall be governed by the Federal Arbitration Act, 9 U.S.C. §1 et seq. The Arbitration Award shall be in writing and may, but shall not be required to, briefly state the findings of fact and conclusions of Law on which it is based. Any monetary Arbitration Award shall be made and payable in U.S. dollars free of any tax, deduction or offset. Subject to Section 6.1(7), each party against which an Arbitration Award assesses a monetary obligation shall pay that obligation on or before the thirtieth (30th) day following the date of such Arbitration Award or such other date as such Arbitration Award may provide.
(6)      Costs . Except to the extent expressly provided by this Agreement or as otherwise agreed by the parties, to the maximum extent permitted by Maryland law, each party involved in a Dispute shall bear its own costs and expenses (including attorneys’ fees), and the arbitrators shall not render an Arbitration Award that would include shifting of any such costs or expenses (including attorneys’ fees) or, in a derivative case or class action, award any portion of a party’s Arbitration Award to the claimant or the claimant’s attorneys. Each party (or, if there are more than two (2) parties to the Dispute, all claimants, on the one hand, and all respondents, on the other hand, respectively) shall bear the costs and expenses of its (or their) selected arbitrator and the parties (or, if there are more than two (2) parties to the Dispute, all claimants, on the one hand, and all respondents, on the other hand) shall equally bear the costs and expenses of the third (3 rd ) appointed arbitrator.
(7)      Appeals . Notwithstanding any language to the contrary in this Agreement, any Arbitration Award, including but not limited to any interim Arbitration Award, may be appealed pursuant to the AAA’s Optional Appellate Arbitration Rules (“Appellate Rules”). An Arbitration Award shall not be considered final until after the time for filing the notice of appeal pursuant to the Appellate Rules has expired. Appeals must be initiated within thirty (30) days of receipt of an Arbitration Award by filing a notice of appeal with any AAA office. Following the appeal process, the decision rendered by the appeal tribunal may be entered in any court having jurisdiction thereof. For the avoidance of doubt, and despite any contrary provision of the Appellate Rules, the above paragraph relating to costs and expenses shall apply to any appeal pursuant to this Section 6.1 and the appeal tribunal shall not render an Arbitration Award that would include shifting of any costs or expenses (including attorneys’ fees) of any party.
(8)      Final Judgment . Following the expiration of the time for filing the notice of appeal, or the conclusion of the appeal process set forth in Section 6.1(7), an Arbitration Award shall be final and binding upon the parties thereto and shall be the sole and exclusive remedy between those parties relating to the Dispute, including any claims, counterclaims, issues or accounting presented to the arbitrators. Judgment upon an Arbitration Award may be entered in any court having jurisdiction. To the fullest extent permitted by law, no application or appeal to any court of competent jurisdiction may be made in connection with any question of law arising in the course of arbitration or with respect to any Arbitration Award made, except for actions relating to enforcement of this

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Section 6.1 or any arbitral award issued hereunder, and except for actions seeking interim or other provisional relief in aid of arbitration proceedings in any court of competent jurisdiction.
(9)      Intended Beneficiaries . This Section 6.1 is intended to benefit and be enforceable by the parties and their respective shareholders, members, direct and indirect parents, trustees, directors, officers, managers (including The RMR Group Inc. and The RMR Group LLC), agents or employees of any party and their respective successors and assigns and shall be binding on the shareholders of any party and the parties, as applicable, and shall be in addition to, and not in substitution for, any other rights to indemnification or contribution that such individuals or entities may have by contract or otherwise.
6.2      Confidentiality . Each party shall use commercially reasonable efforts to maintain the confidentiality of any information concerning the parties or any subsidiary of another party provided to or discovered by it or its representatives as a result of the transaction contemplated by the Transaction Documents and which is not otherwise available on a nonconfidential basis to such party and shall not (except as may otherwise be appropriate or required under applicable Law or the rules and regulations of the National Association of Securities Dealers Automated Quotations System or The Nasdaq Stock Market LLC) disclose such information, subject to the provisions of this Section, to anyone other those persons who have a need to know such information in connection with the conduct of such party’s business, including its attorneys, accountants and other representatives and agents or during the course of or in connection with any litigation or other action, arbitration, investigation or other proceeding based upon or in connection with the subject matter of this Agreement or the transactions contemplated hereby.
6.3      Publicity . The parties agree that, except as may be appropriate or required under applicable Law (including, without limitation, the rules and regulations of the National Association of Securities Dealers, The Nasdaq Stock Market LLC), no party shall, with respect to this Agreement and the transactions contemplated hereby, contact or conduct negotiations with public officials, make any public pronouncements, issue press releases or otherwise furnish information regarding this Agreement or the transactions contemplated hereby to any third party without the consent of the other party, which consent shall not be unreasonably withheld or delayed. No FVE Party shall trade in the securities of any SNH Party or any of their affiliates, and no SNH Party shall trade in the securities of any FVE Party or any of their affiliates, until a public announcement of the transactions contemplated by this Agreement has been made. No party shall record this Agreement or any notice thereof.
6.4      Notices .
(1)      All notices required or permitted to be sent hereunder shall be deemed to have been given for all purposes of this Agreement upon the date of electronic confirmation of delivery sent by the sender’s machine or computer, in the case of a notice by telecopier or electronic mail, and, in all other cases, upon the date of receipt or refusal, except that whenever under this Agreement a notice is either received on a day which is not a Business Day or is required to be delivered on or before a specific day which is not

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a Business Day, the day of receipt or required delivery shall automatically be extended to the next Business Day.
(2)      All such notices shall be addressed,
if to any FVE Party, to:
Five Star Senior Living Inc.
400 Centre Street
Newton, Massachusetts 02458
Attn: Mr. Bruce J. Mackey Jr.
Telecopier No. (617) 796-8385
E-Mail:
bmackey@5ssl.com
with a copy to:
Ropes & Gray LLP
1211 Avenue of the Americas
New York, New York 10036-8704
Attn: David C. Djaha
Telecopier No. (646) 728-2936
E-Mail:
david.djaha@ropesgray.com

If to any SNH Party, to:
Senior Housing Properties Trust
Two Newton Place, Suite 300
255 Washington Street

Newton, Massachusetts 02458
Attn: Mr. David J. Hegarty
Telecopier No. (617) 796-8349
E-Mail:
dhegarty@rmrgroup.com
with a copy to:
Sullivan & Worcester LLP
One Post Office Square
Boston, Massachusetts 02109
Attn: Nicole Rives
Telecopier No. (617) 338-2880
E-Mail:
nrives@sandw.com
(3)      By notice given as herein provided, the parties and their respective successors and assigns shall have the right from time to time and at any time during the term of this Agreement to change their respective addresses effective upon receipt by the other Parties of such notice.

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6.5      Waivers, Etc. No provision of this Agreement may be waived except by a written instrument signed by the party waiving compliance. No waiver by any party hereto of any of the requirements hereof or of any of such party’s rights hereunder shall release the other parties from full performance of their remaining obligations stated herein. No failure to exercise or delay in exercising on the part of any party hereto any right, power or privilege of such party shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege by such party. This Agreement may not be amended, nor shall any waiver, change, modification, consent or discharge be effected, except by an instrument in writing executed by or on behalf of the party against whom enforcement of any amendment, waiver, change, modification, consent or discharge is sought.
6.6      Assignment, Successors and Assigns; Third Party Beneficiaries . This Agreement and all rights and obligations hereunder shall not be assignable by any party without the written consent of the other parties, except to a successor to such party by merger or consolidation or an assignee of substantially all of the assets of such party. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement is not intended and shall not be construed to create any rights in or to be enforceable in any part by any other Person.
6.7      Severability . If any provision of this Agreement shall be held or deemed to be, or shall in fact be, invalid, inoperative or unenforceable as applied to any particular case in any jurisdiction or jurisdictions, or in all jurisdictions or in all cases, because of the conflict of any provision with any constitution or statute or rule of public policy or for any other reason, such circumstance shall not have the effect of rendering the provision or provisions in question invalid, inoperative or unenforceable in any other jurisdiction or in any other case or circumstance or of rendering any other provision or provisions herein contained invalid, inoperative or unenforceable to the extent that such other provisions are not themselves actually in conflict with such constitution, statute or rule of public policy, but this Agreement shall be reformed and construed in any such jurisdiction or case as if such invalid, inoperative or unenforceable provision had never been contained herein and such provision reformed so that it would be valid, operative and enforceable to the maximum extent permitted in such jurisdiction or in such case.
6.8      Counterparts, Etc. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
6.9      Governing Law . This Agreement shall be interpreted, construed, applied and enforced in accordance with the Laws of The Commonwealth of Massachusetts applicable to contracts between residents of Massachusetts which are to be performed entirely within Massachusetts subject to the provisions of Section 6.1.
6.10      Expenses . Except as otherwise set forth in this Section 6.10, the SNH Parties shall be responsible for all out of pocket costs and expenses incurred in connection with the consummation of the transactions contemplated by this Agreement, including, without limitation,

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all title and survey charges, transfer taxes, recording fees and consultant fees (including, without limitation, all appraisal costs and other costs incurred in connection with conducting due diligence with respect to the Properties), in an amount not to exceed $850,000, and the FVE Parties shall be responsible for all such out of pocket costs and expenses in excess of $850,000. Notwithstanding the foregoing, the SNH Parties and the FVE Parties shall each bear their own attorneys’ fees incurred by any of them in connection with the Transaction Documents and the consummation of the transactions contemplated thereby.
6.11      Section and Other Headings; Interpretation . The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement; and Section, subsection, Schedule and Exhibit references are to this Agreement, unless otherwise specified. The singular and plural use of a defined term shall have the correlative meaning. The words “including” and “include” shall be deemed to be followed by the words “without limitation.”
6.12      SNH NON-LIABILITY OF TRUSTEES . THE AMENDED AND RESTATED DECLARATION OF TRUST ESTABLISHING SNH, DATED SEPTEMBER 20, 1999, AS AMENDED AND SUPPLEMENTED, AS FILED WITH THE STATE DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND, PROVIDES THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF SNH SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, SNH. ALL PERSONS DEALING WITH SNH IN ANY WAY SHALL LOOK ONLY TO THE ASSETS OF SNH FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
6.13      Entire Agreement . This Agreement and the other Transaction Documents constitute the entire agreement of the parties hereto with respect to the subject matter hereof and thereof and supersede all previous contracts and understandings between the parties with respect to the subject matter hereof and thereof.
6.14      Survival . The provisions of Section 3, Section 5, and this Section 6 shall survive each Closing (provided, Section 3 and Sections 5.1 and 5.2 shall only apply to Properties as to which the Closing has not occurred). The representations of FVE in Sections 4.1(1) and 4.1(2) and of SNH in Section 4.2(1) and 4.2(2) and the indemnity set forth in Section 5.3 and Section 5.5 shall survive indefinitely and all other representations and warranties of the parties set forth in a Transaction Document shall survive the final Closing Date for a period of one (1) year unless a longer period for survival is otherwise specified in the applicable Transaction Document.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]


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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as a sealed instrument as of the date first above written.
SNH PARTIES:
SENIOR HOUSING PROPERTIES TRUST, on behalf of itself and its subsidiaries
By:     /s/ David J. Hegarty                
    David J. Hegarty
    President
FVE PARTIES:
FIVE STAR SENIOR LIVING INC., on behalf of itself and its subsidiaries
By:     /s/ Bruce J. Mackey Jr.                
    Bruce J. Mackey Jr.
President







EXHIBIT A-1
FORM OF AL PURCHASE AGREEMENT















PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
[INSERT SNH PURCHASER],
AS PURCHASER,
and
[INSERT FVE SELLER],
AS SELLER
___________________________
NOVEMBER 8, 2017









PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT is made as of November 8, 2017, by and between [●] , a [●], as purchaser (the “ Purchaser ”), and [●] , a [●], as seller (the “ Seller ”).
WITNESSETH :
WHEREAS, the Seller owns and operates certain real property and related property comprising the senior living community known as [INSERT COMMUNITY NAME] and having an address at [INSERT COMMUNITY ADDRESS] (the “ Community ”); and
WHEREAS, the Purchaser desires to purchase the Community and the other Property (as defined below) from the Seller, and the Seller desires to sell the Property (including, without limitation, the Community) to the Purchaser, subject to and upon the terms and conditions hereinafter set forth;
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, the Purchaser and the Seller hereby agree as follows:
SECTION I
DEFINITIONS
Capitalized terms used in this Agreement shall have the meanings set forth below or in the section of this Agreement referred to below:
1.1      Agreement ”: this Purchase and Sale Agreement, together with all of the Exhibits and Schedules attached hereto, as it and they may be amended from time to time as herein provided. All references to a Schedule or an Exhibit are references to a Schedule or an Exhibit attached to this Agreement unless otherwise indicated.
1.2      Business Day ”: any day other than a Saturday, Sunday or any other day on which banking institutions in The Commonwealth of Massachusetts are authorized by law or executive action to close.
1.3      Closing ”: the meaning given in Section 2.2 .
1.4      Closing Conditions ”: the conditions to closing with respect to the Property as set forth in the Transaction Agreement.
1.5      Closing Date ”: a date mutually acceptable to the Purchaser and the Seller on or after the date that all Closing Conditions have been satisfied, provided, in no event will the Closing Date be later than March 31, 2018.
1.6      Community ”: the meaning given such term in the recitals to this Agreement.





1.7      Contracts ”: collectively, all of the Seller’s right, title and interest in and to all contracts and other third party agreements related to the construction, development, ownership, operation, maintenance or repair of the Community, excluding any management agreement previously entered into by the Seller as owner of the Community. [For the avoidance of doubt, the Contracts include the Tellico Village Construction Contracts.]
1.8      Governmental Authority ”: any court, agency, authority, board (including environmental protection, planning and zoning), bureau, commission, department, office or instrumentality of any nature whatsoever of any governmental or quasi-governmental unit of the United States or any state or any county or any political subdivision of any of the foregoing, whether now or hereafter in existence, having jurisdiction over the Seller or the Property, or any portion thereof or the business conducted thereon.
1.9      Improvements ”: the buildings, fixtures and other improvements situated on, or affixed to, the Land.
1.10      Intangible Property ”: collectively, all of the Seller’s right, title and interest in and to the intangible property related to the Community, excluding the Contracts, the Licenses and Permits, [the Loan Documents,] the Resident Agreements and the Warranties.
1.11      Land ”: the parcel or parcels of land described on Exhibit A , together with all easements, rights of way, licenses and appurtenances which the Seller may now own or hereafter acquire with respect thereto.
1.12      Laws ”: all laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of any Governmental Authority.
1.13      [“ Lender ”: [●], the current lender under the Loan Documents.]
1.14      Licenses and Permits ”: collectively, all of the Seller’s right, title and interest in and to all licenses, permits, consents, authorizations, approvals, registrations and certificates issued by any Governmental Authority with respect to the Property, including, without limitation, all such licenses, permits, consents, authorizations, approvals, registrations and certificates issued by any Governmental Authority necessary for the construction, development, use, operation, or occupancy of the Property (or any portion thereof) or the Community.
1.15      [“ Loan Documents ”: those certain agreements, documents and other instruments evidencing or securing the Loan and further described on Exhibit B .]
1.16      [“ Loan ”: that certain loan in the original principal amount of $[●], which was made by the Lender (or its predecessor) to the Seller (or its predecessor) on or about [●].]
1.17      Permitted Exceptions ”: collectively, (a) rights of Residents, as residents only, with no purchase options or rights of first refusal, under Resident Agreements, (b) liens for taxes,

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assessments and governmental charges not yet due and payable or due and payable but not yet delinquent, and (c) the liens, encumbrances and other matters identified on Exhibit [B/C] .
1.18      Personal Property ”: collectively, all of the Seller’s right, title and interest in and to all furniture, fixtures, equipment, books, files, records, inventories, stocks, supplies, machinery, tools, appliances and other tangible personal property owned by the Seller, located at the Community and used in connection with the Community.
1.19      Property ”: collectively, the Real Property, the Personal Property, the Contracts, the Licenses and Permits to the extent transferable, [the Loan Documents,] the Resident Agreements, the Resident Deposits (if any), the Warranties and the Intangible Property.
1.20      Purchase Price ”: [●] and 00/100 Dollars ($[●].00)[, plus any costs and expenses paid for by Seller in connection with the Tellico Village Construction Work from and after September 1, 2017 through the Closing Date in accordance with Section 5.6 of the Transaction Agreement].
1.21      Purchaser ”: the meaning given in the preamble to this Agreement, together with its permitted successors and assigns.
1.22      Real Property ”: collectively, the Land and the Improvements.
1.23      Resident ”: any individual residing at the Community.
1.24      Resident Agreements ”: collectively, all resident agreements, tenant leases and other agreements or arrangements for the use or occupancy of any units, beds or other facilities provided, meals served, goods sold or services provided, in each case, on or at the Community, or any portion thereof, or in connection with the operation of the Community.
1.25      Resident Deposit ”: any refundable deposit or other refundable security provided to the Seller by a Resident or a prospective resident of the Community.
1.26      Seller’s Knowledge ”: the actual knowledge of Bruce J. Mackey Jr., Richard A. Doyle, Jr., R. Scott Herzig, Stephen McCray and Katherine E. Potter.
1.27      Seller ”: the meaning given in the preamble to this Agreement, together with its permitted successors and assigns.
1.28      [“ Tellico Village Construction Contracts ”: the meaning given in the Transaction Agreement.]
1.29      [“ Tellico Village Construction Work ”: the meaning given in the Transaction Agreement.]
1.30      Title Company ”: Stewart Title Guaranty Company.

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1.31      Transaction Agreement ”: that certain Transaction Agreement, dated as of the date hereof, between Senior Housing Properties Trust and Five Star Senior Living Inc.
1.32      Warranties ”: collectively, all assignable warranties or guaranties, if any, presently in effect from contractors, suppliers or manufacturers of Improvements and Personal Property installed in, or used in connection with the Community.
SECTION II
PURCHASE AND SALE; CLOSING
2.1      Purchase and Sale . In consideration of the payment of the Purchase Price by the Purchaser to the Seller and for other good and valuable consideration, the Seller hereby agrees to sell to the Purchaser, and the Purchaser hereby agrees to purchase from the Seller, the Property for the Purchase Price, subject to and in accordance with the terms and conditions of this Agreement.
2.2      Closing . The purchase and sale of the Property shall be consummated at a closing (the “ Closing ”) to be held at the offices of Sullivan & Worcester LLP, One Post Office Square, Boston, Massachusetts, or at such other location as the Seller and the Purchaser may agree, at 10:00 a.m., local time, on the Closing Date.
2.3      Purchase Price .
(a)      The purchase price to be paid for the Property shall be the Purchase Price. The Purchase Price shall be paid by the Purchaser to or at the direction of the Seller at the Closing.
(b)      The Purchase Price shall be payable in immediately available federal funds by wire transfer to an account or accounts to be designated by the Seller.
SECTION III
CLOSING DELIVERABLES
3.1      Seller’s Closing Deliverables . At the Closing, the Seller shall deliver to the Purchaser the following:
(a)      A deed, in substantially the same form as the deed by which the Seller took title to the Real Property, duly executed and acknowledged by the Seller, conveying title to the Real Property, free from all liens and encumbrances other than Permitted Exceptions;
(b)      One or more bills of sale and assignment and assumption agreements, in the form of Exhibit [C/D] , duly executed and acknowledged by the Seller, with respect to the assignment and assumption of all of the Personal Property, the Contracts, the Licenses and Permits (to the extent transferable), [the Loan Documents,] the Resident Agreements, the Warranties and the Intangible Property (it being understood and agreed that no portion of the Purchase Price is allocated to any of the foregoing) (the “ Assignment Agreements ”);

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(c)      [A loan assumption agreement and such other documents reasonably required by Lender to evidence the assumption of the Loan by the Purchaser, each duly executed and acknowledged by the Seller;]
(d)      A notice addressed to the Residents concerning the sale of the Community and directing that future rents be paid to the Purchaser, which notice shall be in a form mutually acceptable to the Seller and the Purchaser; provided , however , this notice shall be provided prior to Closing if required by applicable law;
(e)      A settlement statement, duly executed and acknowledged by the Seller, setting forth all of the adjustments and prorations with respect to the Purchase Price as described in Section V ;
(f)      To the extent the same are in the Seller’s possession or control, original, fully executed copies of all Contracts, Licenses and Permits, [Loan Documents,] Resident Agreements and all other material documents and agreements, plans and specifications pertaining to such Property;
(g)      An affidavit dated as of the Closing Date, in respect of Section 1445 of the Internal Revenue Code of 1986, as amended, sufficient to provide an exemption under subdivision (b) thereof; and
(h)      A parties in possession affidavit, mechanic’s lien affidavit, a gap indemnity and such other affidavits, conveyance documents, certificates, deeds and other instruments as the Purchaser or the Title Company may reasonably require.
3.2      Purchaser’s Closing Deliverables . At the Closing, the Purchaser shall deliver to the Seller the Purchase Price payable hereunder and counterparts of the Assignment Agreements and any other applicable closing documents to be delivered by the Seller pursuant to Section 3.1 , each duly executed and acknowledged by the Purchaser.
SECTION IV
REPRESENTATIONS AND WARRANTIES OF SELLER
4.1      Seller’s Representations . To induce the Purchaser to enter into this Agreement, the Seller represents and warrants to the Purchaser as follows:
(a)      Compliance With Law and Permitted Exceptions . To Seller’s Knowledge, the Property and the operation thereof complies in all material respects with all applicable Laws and all Permitted Exceptions, including, without limitation, any applicable licensing requirements related thereto. The Seller has not received, within the last three (3) years prior to the date of this Agreement, any written notice of any violation of any Law with respect to the Property or Permitted Exception which has not been corrected, or of any threatened request, application, proceeding, plan or study in writing which would reasonably be expected to materially and adversely affect the use or zoning of the Property or which would modify or

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realign any street or highway adjacent to the Property in a way which materially and adversely affect the Property.
(b)      Licenses and Permits . The Seller possesses all Licenses and Permits necessary for the operation of the Property as currently operated. Each of such Licenses and Permits is in full force and effect and in good standing and to Seller’s Knowledge, no action or omission has occurred which would reasonably be expected to jeopardize the effectiveness or good standing of any of such Licenses and Permits. To the Seller’s Knowledge, there are no unresolved material complaints, surveys or audit deficiencies or code violations raised or compliance actions taken by any Governmental Authority with regard to the Property or any Licenses and Permits relating to the Property or the operation thereof.
(c)      Loan Documents . The Seller has delivered to the Purchaser true and complete (in all material respects) copies of the Loan Documents. The Loan Documents are all of the agreements, instruments or other documents evidencing, securing or governing the terms and conditions of the Loan. To Seller’s Knowledge, each Loan Document is in full force and effect on the terms set forth therein, and there are no defaults or circumstances (other than the proposed sale of the Property subject thereto) which, with the giving of notice, the passage of time or both, would constitute a default by the Seller under any such Loan Document and the Seller has received any written notice from Lender alleging any default under any Loan Document.
(d)      Other Agreements, Etc. Other than the Resident Agreements, the Contracts, the Loan Documents and the Permitted Exceptions, there are no other material agreements, contracts or other instruments with respect to or otherwise affecting the Property that will be binding on the Purchaser after the Closing.
(e)      Utilities, Etc. To Seller’s Knowledge, all utilities and services necessary for the current [and proposed] use and operation of the Property (including, without limitation, road access, gas, water, electricity and telephone) are available thereto. To Seller’s Knowledge, no fact, condition or proceeding exists which would result in the termination or impairment of the furnishing of such utilities to the Property.
(f)      Taxes . To Seller’s Knowledge, other than the amounts disclosed by tax bills, no taxes or special assessments of any kind (special, bond or otherwise) are or have been levied with respect to the Property, or any portion thereof, which are outstanding or unpaid, other than amounts not yet due and payable or, if due and payable, not yet delinquent, and, to Seller’s Knowledge, no such levies are pending or threatened in writing.
(g)      Hazardous Substances . To Seller’s Knowledge, none of the Seller nor any tenant or other occupant or user of any of the Property, or any portion thereof, has stored or disposed of (or engaged in the business of storing or disposing of) or has released or caused the release of any hazardous waste, contaminants, oil, radioactive or other material on the Property, or any portion thereof, in violation of any applicable Federal, state or local statutes, laws, ordinances, rules or regulations, and, to Seller’s Knowledge, except as disclosed in writing to the

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Purchaser, the Property is free from any such hazardous waste, contaminants, oil, radioactive and other materials, except any such materials maintained in accordance with applicable law.
(h)      Not a Foreign Person . The Seller is not a “foreign person” within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder.
(i)      [ Construction Project . The Seller has received all required final certificates of occupancy from the appropriate Governmental Authorities for all alterations and improvements related to the assisted living and memory care units at the Community. The Tellico Village Construction Contracts are the only agreements or contracts entered into by the Seller with respect to the Tellico Village Construction Work. The Seller has delivered to the Purchaser true and complete (in all material respects) copies of the budget and construction documents and plans related to the Tellico Village Construction Work (including, without limitation, the Tellico Village Construction Contracts).]
4.2      Survival of Seller’s Representations . All representations and warranties made in this Agreement by the Seller shall survive the Closing for a period of one (1) year.
4.3      AS-IS . Except as otherwise expressly provided in this Agreement (including any exhibit or schedule) or in any other documents executed and delivered at or before the Closing, the Seller has not made (and the Purchaser has not relied upon), any promise, representation or warranty, express or implied, regarding the Property, whether made by the Seller, on the Seller’s behalf or otherwise. The Purchaser acknowledges that, except as otherwise expressly provided in this Agreement or in any documents executed and delivered at or before the Closing, the Purchaser (a) has entered into this Agreement with the intention of making and relying upon its own investigation or that of third parties with respect to the physical, environmental, economic and legal condition of the Property and (b) is not relying upon any statements, representations or warranties of any kind by the Seller or anyone acting or claiming to act on the Seller’s behalf.
SECTION V
APPORTIONMENTS
5.1      Apportionments.
(a)      Closing Apportionments . The following items shall be apportioned at the Closing as of 12:01 a.m., local time at the Property, on the Closing Date, such that all items of income and expense for the Property prior to the Closing Date shall be for the account of the Seller and all items of income and expense for the Property from and after the Closing Date shall be for the account of the Purchaser:
(i) rents and all other fixed and unfixed charges payable under the Resident Agreements to the extent the same have been collected;
(ii)      fuel, electric, water and other utility costs;

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(iii)      real estate taxes and assessments and personal property taxes which have accrued with respect to the Property (regardless of when such taxes or assessments are due and payable);
(iv)      amounts paid or payable under Contracts being assumed by the Purchaser and/or Permitted Exceptions; [provided, however, (X) there shall be no proration hereunder with respect to the Tellico Village Construction Contracts for costs incurred thereunder prior to September 1, 2017, (Y) any amounts paid by the Seller under the Tellico Village Construction Contracts from and after September 1, 2017 through the Closing Date shall be paid for by the Purchaser as part of the Purchase Price and (Z) the Purchaser shall assume and be responsible for any amounts incurred under the Tellico Village Construction Contracts from and after September 1, 2017 and not paid for by the Seller as of the Closing Date;] and
(v)      all other items of income and expense normally apportioned in sales of property in similar situations in the areas in which the Property is located.
If any of the foregoing cannot be apportioned at the Closing because of the unavailability of the amounts which are to be apportioned, such items shall be apportioned on the basis of good faith estimates by the parties and reconciled as soon as practicable after the Closing Date but, in any event, no later than one (1) year after the Closing Date, which obligation shall survive the Closing.
(b)      Past Due Rents . If, on the Closing Date, there are any rents or any other charges which are then due and payable by any Resident under any Resident Agreement (collectively, “ Past Due Rents ”), then any rents thereafter collected by the Purchaser from any Resident owing Past Due Rents shall be applied to rents due to the Purchaser for the period from and after the Closing Date and, thereafter to any additional Past Due Rents in inverse order of maturity.
(c)      Resident Deposits . At the Closing, the Purchaser shall receive a credit for the amount of all Resident Deposits (if any).
(d)      [ Loan . At the Closing, the Purchaser shall receive a credit in an amount equal to the outstanding principal balance under the Loan and any interest and other charges accrued thereon which have not been paid as of the Closing Date and which relate to any period of time prior to the Closing Date (regardless of when such payment is due), as such amounts shall be determined by a written statement of Lender or such other evidence reasonably satisfactory to the Purchaser, and the Seller shall receive a credit in the amount of any outstanding escrow balances held by Lender to the extent transferred to the Purchaser.]
(e)      Allocation of Closing Apportionments . As between the Purchaser and any affiliate of the Purchaser who leases the Community from the Purchaser, all of the items of income and expense which are apportioned under this Section 5.1 [, other than the loan balance under Section 5.1(d) ,] shall be for the account of such affiliate of the Purchaser who leases the Community from the Purchaser.

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SECTION VI
MISCELLANEOUS
6.1      Allocation of Liability . It is expressly understood and agreed that the Seller shall be liable to third parties for, and shall indemnify, defend and hold harmless the Purchaser from and against, any and all obligations, claims, losses, damages, liabilities and expenses arising out of events, contractual obligations, acts, or omissions of the Seller that occurred in connection with the ownership or operation of, or conduct of business on, the Property prior to the Closing.
6.2      Brokers . Each of the parties hereto represents to the other party that it dealt with no broker, finder or like agent in connection with this Agreement or the transactions contemplated hereby. Each party shall indemnify and hold harmless the other party and their respective legal representatives, heirs, successors and assigns from and against any loss, liability or expense, including, reasonable attorneys’ fees, arising out of any claim or claims for commissions or other compensation for bringing about this Agreement or the transactions contemplated hereby made by any other broker, finder or like agent, if such claim or claims are based in whole or in part on dealings with the indemnifying party.
6.3      Financials . The Seller shall provide the Purchaser with access to the books and records of the Seller for the purpose of preparing audited financial statements for the Property with respect to the last three (3) calendar years immediately preceding the Closing Date and the stub period for the calendar year in which the Closing Date occurs, such financial statements to be prepared at the Purchaser’s sole cost and expense. The Seller shall provide the Purchaser and its accountants with such certifications with respect to such financials as they shall from time to time reasonably require.
6.4      Notices . All notices required or permitted to be sent hereunder shall be deemed to have been given for all purposes of this Agreement upon the date of electronic confirmation of delivery sent by the sender’s machine or computer, in the case of a notice by telecopier or electronic mail, and, in all other cases, upon the date of receipt or refusal, except that whenever under this Agreement a notice is either received on a day which is not a Business Day or is required to be delivered on or before a specific day which is not a Business Day, the day of receipt or required delivery shall automatically be extended to the next Business Day.
All such notices shall be addressed,
if to the Seller, to:
c/o Five Star Senior Living Inc.
400 Centre Street
Newton, Massachusetts 02458
Attn: Mr. Bruce J. Mackey Jr.
Telecopier No. (617) 796-8385
E-Mail:
bmackey@5ssl.com

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with a copy to:
Ropes & Gray LLP
1211 Avenue of the Americas
New York, New York 10036-8704
Attn: David C. Djaha
Telecopier No. (646) 728-2936
E-Mail:
david.djaha@ropesgray.com
If to the Purchaser, to:
c/o Senior Housing Properties Trust
Two Newton Place, Suite 300
255 Washington Street
Newton, Massachusetts 02458
Attn: Mr. David J. Hegarty
Telecopier No. (617) 796-8349
E-Mail:
dhegarty@rmrgroup.com
with a copy to:
Sullivan & Worcester LLP
One Post Office Square
Boston, Massachusetts 02109
Attn: Nicole Rives
Telecopier No. (617) 338-2880
E-Mail:
nrives@sandw.com
By notice given as herein provided, the parties and their respective successors and assigns shall have the right from time to time and at any time during the term of this Agreement to change their respective addresses effective upon receipt by the other party of such notice.
6.5      Waivers, Etc. Any waiver of any term or condition of this Agreement, or of the breach of any covenant, representation or warranty contained herein, in any one instance, shall not operate as or be deemed to be or construed as a further or continuing waiver of any other breach of such term, condition, covenant, representation or warranty or any other term, condition, covenant, representation or warranty, nor shall any failure at any time or times to enforce or require performance of any provision hereof operate as a waiver of or affect in any manner such party’s right at a later time to enforce or require performance of such provision or any other provision hereof. This Agreement may not be amended, nor shall any waiver, change, modification, consent or discharge be effected, except by an instrument in writing executed by or on behalf of the party against whom enforcement of any amendment, waiver, change, modification, consent or discharge is sought.
6.6      Assignment; Successors and Assigns . This Agreement and all rights and obligations hereunder shall not be assignable (a) by the Seller without the written consent of the

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Purchaser; or (b) by the Purchaser without the written consent of the Seller, except that the Purchaser may assign this Agreement, in whole or in part, to one or more entities wholly owned, directly or indirectly, by the Purchaser or the ultimate parent of the Purchaser; provided , however , that, in the event this Agreement shall be assigned to one or more entities wholly owned, directly or indirectly, by the Purchaser or the ultimate parent of the Purchaser, the Purchaser named herein shall remain liable for the obligations of the “Purchaser” hereunder. In addition, the Purchaser, without the consent of the Seller but after having given written notice to the Seller, may elect to vest title in certain assets comprising the Property to one or more designees of the Purchaser, which election shall not be deemed an assignment and the Purchaser shall remain liable for the obligations of the “Purchaser” hereunder; provided , however , that all such designees shall be affiliates or subsidiaries of the Purchaser. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective legal representatives, successors and permitted assigns.
6.7      Severability . If any provision of this Agreement shall be held or deemed to be, or shall in fact be, invalid, inoperative or unenforceable as applied to any particular case in any jurisdiction or jurisdictions, or in all jurisdictions or in all cases, because of the conflict of any provision with any constitution or statute or rule of public policy or for any other reason, such circumstance shall not have the effect of rendering the provision or provisions in question invalid, inoperative or unenforceable in any other jurisdiction or in any other case or circumstance or of rendering any other provision or provisions herein contained invalid, inoperative or unenforceable to the extent that such other provisions are not themselves actually in conflict with such constitution, statute or rule of public policy, but this Agreement shall be reformed and construed in any such jurisdiction or case as if such invalid, inoperative or unenforceable provision had never been contained herein and such provision reformed so that it would be valid, operative and enforceable to the maximum extent permitted in such jurisdiction or in such case.
6.8      Counterparts, Etc. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
6.9      Performance on Business Days . In the event the date on which performance or payment of any obligation of a party required hereunder is other than a Business Day, the time for payment or performance shall automatically be extended to the first Business Day following such date.
6.10      Section and Other Headings . The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
6.11      Time of Essence . Time shall be of the essence with respect to the performance of each and every covenant and obligation, and the giving of all notices, under this Agreement.
6.12      Governing Law . This Agreement shall be governed by, and construed in accordance with, the laws of The Commonwealth of Massachusetts and the parties hereby

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consent to the jurisdiction of the courts of The Commonwealth of Massachusetts with respect to any disagreement as between the parties hereto, subject to the provisions of the Transaction Agreement.
6.13      [NO TRUSTEE LIABILITY . THE DECLARATION OF TRUST ESTABLISHING THE PURCHASER, DATED SEPTEMBER 15, 2017, AS AMENDED AND SUPPLEMENTED, AS FILED WITH THE STATE DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND, PROVIDES THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF THE PURCHASER SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE PURCHASER. ALL PERSONS DEALING WITH THE PURCHASER IN ANY WAY SHALL LOOK ONLY TO THE ASSETS OF THE PURCHASER FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.]
6.14      Survival . The provisions of this Section VI shall survive the Closing under this Agreement or the earlier termination of this Agreement.

[Signature Page Follows.]


- 12 -



IN WITNESS WHEREOF , the parties have caused this Agreement to be executed as a sealed instrument as of the date first above written.
SELLER:
[●],
a [●]


By:                                     
Bruce J. Mackey Jr.
President
PURCHASER:
[●],
a [●]

By:                                     
David J. Hegarty
President







EXHIBIT A
THE LAND

[See attached copy.]







[ EXHIBIT B ]
[LOAN DOCUMENTS]






EXHIBIT [B/C]
PERMITTED EXCEPTIONS

[See attached copy.]






EXHIBIT [C/D]
FORM OF ASSIGNMENT AGREEMENT

[See attached copy.]






GENERAL BILL OF SALE AND
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS GENERAL BILL OF SALE AND ASSIGNMENT AND ASSUMPTION AGREEMENT (this “ Agreement ”) is made and entered into as of [●], [2017/2018], by and between [●], a [●] (the “ Grantor ”), and [●] , a [●] (the “ Grantee ”).
W I T N E S S E T H:
WHEREAS, the Grantor and the Grantee are parties to that certain Purchase and Sale Agreement dated as of November 8, 2017 (the “ Purchase Agreement ”) with respect to the senior living Community known as ___________________ and having an address at ______________________________ (the “ Community ”); and
NOW, THEREFORE, for and 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, the Grantor and the Grantee hereby agree as follows:
1. All capitalized terms used but not otherwise defined in this Agreement shall have the meanings given such terms in the Purchase Agreement.
2. The Grantor does hereby grant, bargain, sell, assign, transfer, deliver and convey unto the Grantee, all of the Grantor’s right, title and interest in and to the Personal Property, the Contracts, the Licenses and Permits to the extent transferable, [the Loan Documents,] the Resident Agreements, the Resident Deposits (if any), the Warranties and the Intangible Property. (collectively, the “ Transferred Assets ”).
3. The Grantee hereby assumes and agrees to observe and perform all of the covenants, conditions and agreements to be performed on the part of the Grantor under or with respect to the Transferred Assets on and after the date hereof.
4. The Grantor agrees to indemnify and hold harmless the Grantee from and against any and all obligations, claims, losses, damages, liabilities, and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) directly or indirectly arising out of or related to any of the Transferred Assets prior to the date hereof.
5. The Grantee agrees to indemnify and hold harmless the Grantor from and against any and all obligations, claims, losses, damages, liabilities, and expenses (including, without limitation, reasonable attorneys’ and accountants’ fees and disbursements) directly or indirectly arising out of or related to any of the Transferred Assets on and after the date hereof.
6. Notwithstanding anything contained in this Agreement to the contrary, the Grantee shall assume and be responsible for any amounts incurred under the Tellico Village Construction Contracts from and after September 1, 2017 and not paid for by the Grantor as of the Closing Date.








7. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective legal representatives, successors and permitted assigns.
8. This Agreement shall be interpreted, construed, applied and enforced in accordance with the laws of The Commonwealth of Massachusetts.
9. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
10. [THE DECLARATION OF TRUST ESTABLISHING THE GRANTEE, DATED [●], AS AMENDED AND SUPPLEMENTED, AS FILED WITH THE STATE DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND, PROVIDES THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF THE GRANTEE SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE GRANTEE. ALL PERSONS DEALING WITH THE GRANTEE IN ANY WAY SHALL LOOK ONLY TO THE ASSETS OF THE GRANTEE FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.]



[Remainder of page intentionally left blank.]








IN WITNESS WHEREOF, the Grantor and the Grantee have caused this Agreement to be duly executed under seal as of the date first written above.
GRANTOR:
[●],
a [●]
By:                             
Bruce J. Mackey Jr.
President
GRANTEE:
[●],
a [●]
By:                             
David J. Hegarty
President









EXHIBIT A-2
FORM OF GRANITE GATE LANDS PURCHASE AGREEMENT













PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
SNH GRANITE GATE LANDS TRUST,
AS PURCHASER,

AND
FIVE STAR QUALITY CARE – OBX OWNER, LLC,
AS SELLER
___________________________
NOVEMBER 8, 2017







PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT is made as of November 8, 2017, by and between SNH GRANITE GATE LANDS TRUST, a Maryland real estate investment trust, as purchaser (the “ Purchaser ”), and FIVE STAR QUALITY CARE – OBX OWNER, LLC, a Maryland limited liability company, as seller (the “ Seller ”).
WITNESSETH:
WHEREAS, the Seller owns certain vacant land and other real property adjacent to the senior living community known as Granite Gate and having an address at 3850 North US Highway 89, Prescott, Arizona 86301 (the “ Granite Gate Community ”); and
WHEREAS, the Purchaser desires to purchase the Property (as defined below) from the Seller, and the Seller desires to sell the Property to the Purchaser, subject to and upon the terms and conditions hereinafter set forth;
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, the Purchaser and the Seller hereby agree as follows:
SECTION I
DEFINITIONS
Capitalized terms used in this Agreement shall have the meanings set forth below or in the section of this Agreement referred to below:
1.1      Agreement ”: this Purchase and Sale Agreement, together with all of the Exhibits and Schedules attached hereto, as it and they may be amended from time to time as herein provided. All references to a Schedule or an Exhibit are references to a Schedule or an Exhibit attached to this Agreement unless otherwise indicated.
1.2      Business Day ”: any day other than a Saturday, Sunday or any other day on which banking institutions in The Commonwealth of Massachusetts are authorized by law or executive action to close.
1.3      Closing ”: the meaning given in Section 2.2 .
1.4      Closing Date ”: the meaning given such term in the Granite Gate Community Purchase Agreement.
1.5      Governmental Authority ”: any court, agency, authority, board (including environmental protection, planning and zoning), bureau, commission, department, office or instrumentality of any nature whatsoever of any governmental or quasi-governmental unit of the United States or any state or any county or any political subdivision of any of the foregoing, whether now or hereafter in existence, having jurisdiction over Seller or the Property, or any portion thereof or the business conducted thereon.








1.6      Granite Gate Community ”: the meaning given such term in the recitals to this Agreement.
1.7      Granite Gate Community Purchase Agreement ”: the Purchase and Sale Agreement, dated as of the date hereof, between Five Star Quality Care – Granite Gate, LLC and SNH Granite Gate Inc. for the Granite Gate Community, as it may be amended from time to time.
1.8      Improvements ”: the improvements situated on, or affixed to, the Land.
1.9      Intangible Property ”: collectively, all of the Seller’s right, title and interest in and to the intangible property related to the Real Property, if any.
1.10      Land ”: the parcel or parcels of land described on Exhibit A , together with all easements, rights of way, licenses and appurtenances which the Seller may now own or hereafter acquire with respect thereto.
1.11      Laws ”: all laws, ordinances, statutes, codes, rules, regulations, agreements, judgments, orders and decrees now or hereafter enacted, promulgated, or amended, of any Governmental Authority.
1.12      Permitted Exceptions ”: collectively, (a) liens for taxes, assessments and governmental charges not yet due and payable or due and payable but not yet delinquent, and (b) the liens, encumbrances and other matters identified on Exhibit B .
1.13      Personal Property ”: collectively, all of the Seller’s right, title and interest in and to all personal property related to the Real Property, if any.
1.14      Property ”: collectively, the Real Property, the Personal Property and the Intangible Property.
1.15      Purchase Price ”: Two Million One Hundred Fifty Thousand and 00/100 Dollars ($2,150,000.00).
1.16      Purchaser ”: the meaning given in the preamble to this Agreement, together with its permitted successors and assigns.
1.17      Real Property ”: collectively, the Land and the Improvements.
1.18      Seller’s Knowledge ”: the actual knowledge of Bruce J. Mackey Jr., Richard A. Doyle, Jr., R. Scott Herzig, Stephen McCray and Katherine E. Potter.
1.19      Seller ”: the meaning given in the preamble to this Agreement, together with its permitted successors and assigns.
1.20      Title Company ”: Stewart Title Guaranty Company.

2






SECTION II
PURCHASE AND SALE; CLOSING
2.1      Purchase and Sale . In consideration of the payment of the Purchase Price by the Purchaser to the Seller and for other good and valuable consideration, the Seller hereby agrees to sell to the Purchaser, and the Purchaser hereby agrees to purchase from the Seller, the Property for the Purchase Price, subject to and in accordance with the terms and conditions of this Agreement.
2.2      Closing . The purchase and sale of the Property shall be consummated at a closing (the “ Closing ”) to be held at the offices of Sullivan & Worcester LLP, One Post Office Square, Boston, Massachusetts, or at such other location as the Seller and the Purchaser may agree, at 10:00 a.m., local time, on the Closing Date.
2.3      Purchase Price .
(a)      The purchase price to be paid for the Property shall be the Purchase Price. The Purchase Price shall be paid by the Purchaser to or at the direction of the Seller at the Closing.
(b)      The Purchase Price shall be payable in immediately available federal funds by wire transfer to an account or accounts to be designated by the Seller.
SECTION III
CLOSING DELIVERABLES
3.1      Seller’s Closing Deliverables . At the Closing, the Seller shall deliver to the Purchaser the following:
(a)      A deed, in substantially the same form as the deed by which the Seller took title to the Real Property, duly executed and acknowledged by the Seller, conveying title to the Real Property, free from all liens and encumbrances other than Permitted Exceptions;
(b)      A bill of sale and assignment agreement, in the form of Exhibit C , duly executed and acknowledged by the Seller, with respect to the assignment of all of the Personal Property and the Intangible Property (it being understood and agreed that no portion of the Purchase Price is allocated to any of the foregoing) (the “ Assignment Agreements ”);
(c)      A settlement statement, duly executed and acknowledged by the Seller, setting forth all of the adjustments and prorations with respect to the Purchase Price as described in Section V ;
(d)      An affidavit dated as of the Closing Date, in respect of Section 1445 of the Internal Revenue Code of 1986, as amended, sufficient to provide an exemption under subdivision (b) thereof; and

3






(e)      A parties in possession affidavit, mechanic’s lien affidavit, a gap indemnity and such other affidavits, conveyance documents, certificates, deeds and other instruments as the Purchaser or the Title Company may reasonably require.
3.2      Purchaser’s Closing Deliverables . At the Closing, the Purchaser shall deliver to the Seller the Purchase Price payable hereunder and a counterpart of the settlement statement, duly executed and acknowledged by the Purchaser.
SECTION IV
REPRESENTATIONS AND WARRANTIES OF SELLER
4.1      Seller’s Representations . To induce the Purchaser to enter into this Agreement, the Seller represents and warrants to the Purchaser as follows:
(a)      Compliance With Law and Permitted Exceptions . To Seller’s Knowledge, the Property and the operation thereof complies in all material respects with all applicable Laws and all Permitted Exceptions, including, without limitation, any applicable licensing requirements related thereto. The Seller has not received, within the last three (3) years prior to the date of this Agreement, any written notice of any violation of any Law with respect to the Property or Permitted Exception which has not been corrected, or of any threatened request, application, proceeding, plan or study in writing which would reasonably be expected to materially and adversely affect the use or zoning of the Property or which would modify or realign any street or highway adjacent to the Property in a way which materially and adversely affect the Property.
(b)      No Licenses and Permits . The Seller does not hold any licenses, permits or other governmental approvals with respect to the Property.
(c)      Other Agreements, Etc. Other than the Permitted Exceptions, there are no other material agreements, contracts or other instruments with respect to or otherwise affecting the Property that will be binding on the Purchaser after the Closing.
(d)      Taxes . To Seller’s Knowledge, other than the amounts disclosed by tax bills, no taxes or special assessments of any kind (special, bond or otherwise) are or have been levied with respect to the Property, or any portion thereof, which are outstanding or unpaid, other than amounts not yet due and payable or, if due and payable, not yet delinquent, and, to Seller’s Knowledge, no such levies are pending or threatened in writing.
(e)      Hazardous Substances . To Seller’s Knowledge, none of the Seller nor any tenant or other occupant or user of any of the Property, or any portion thereof, has stored or disposed of (or engaged in the business of storing or disposing of) or has released or caused the release of any hazardous waste, contaminants, oil, radioactive or other material on the Property, or any portion thereof, in violation of any applicable Federal, state or local statutes, laws, ordinances, rules or regulations, and, to Seller’s Knowledge, except as disclosed in writing to the Purchaser, the Property is free from any such

4






hazardous waste, contaminants, oil, radioactive and other materials, except any such materials maintained in accordance with applicable law.
(f)      Not a Foreign Person . The Seller is not a “foreign person” within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder.
4.2      Survival of Seller’s Representations . All representations and warranties made in this Agreement by the Seller shall survive the Closing for a period of one (1) year.
4.3      AS-IS . EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT (INCLUDING ANY EXHIBIT OR SCHEDULE) OR IN ANY OTHER DOCUMENTS EXECUTED AND DELIVERED AT OR BEFORE THE CLOSING, THE SELLER HAS NOT MADE (AND THE PURCHASER HAS NOT RELIED UPON), ANY PROMISE, REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING THE PROPERTY, WHETHER MADE BY THE SELLER, ON THE SELLER’S BEHALF OR OTHERWISE. THE PURCHASER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY DOCUMENTS EXECUTED AND DELIVERED AT OR BEFORE THE CLOSING, THE PURCHASER (A) HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OR THAT OF THIRD PARTIES WITH RESPECT TO THE PHYSICAL, ENVIRONMENTAL, ECONOMIC AND LEGAL CONDITION OF THE PROPERTY AND (B) IS NOT RELYING UPON ANY STATEMENTS, REPRESENTATIONS OR WARRANTIES OF ANY KIND BY THE SELLER OR ANYONE ACTING OR CLAIMING TO ACT ON THE SELLER’S BEHALF.

SECTION V
APPORTIONMENTS
5.1      Apportionments .
(a)      Closing Apportionments . The following items shall be apportioned at the Closing as of 12:01 a.m., local time at the Property, on the Closing Date, such that all items of income and expense for the Property prior to the Closing Date shall be for the account of the Seller and all items of income and expense for the Property from and after the Closing Date shall be for the account of the Purchaser:
(i)      real estate taxes and assessments and personal property taxes which have accrued with respect to the Property (regardless of when such taxes or assessments are due and payable);
(ii)      amounts paid or payable under Permitted Exceptions; and
(iii)      all other items of income and expense normally apportioned in sales of property in similar situations in the areas in which the Property is located.

5






If any of the foregoing cannot be apportioned at the Closing because of the unavailability of the amounts which are to be apportioned, such items shall be apportioned on the basis of good faith estimates by the parties and reconciled as soon as practicable after the Closing Date but, in any event, no later than one (1) year after the Closing Date, which obligation shall survive the Closing.
SECTION VI
MISCELLANEOUS
6.1      Allocation of Liability . It is expressly understood and agreed that the Seller shall be liable to third parties for, and shall indemnify, defend and hold harmless the Purchaser from and against, any and all obligations, claims, losses, damages, liabilities and expenses arising out of events, contractual obligations, acts, or omissions of the Seller that occurred in connection with the ownership or operation of the Property prior to the Closing.
6.2      Brokers . Each of the parties hereto represents to the other party that it dealt with no broker, finder or like agent in connection with this Agreement or the transactions contemplated hereby. Each party shall indemnify and hold harmless the other party and their respective legal representatives, heirs, successors and assigns from and against any loss, liability or expense, including, reasonable attorneys’ fees, arising out of any claim or claims for commissions or other compensation for bringing about this Agreement or the transactions contemplated hereby made by any other broker, finder or like agent, if such claim or claims are based in whole or in part on dealings with the indemnifying party.
6.3      Notices . All notices required or permitted to be sent hereunder shall be deemed to have been given for all purposes of this Agreement upon the date of electronic confirmation of delivery sent by the sender’s machine or computer, in the case of a notice by telecopier or electronic mail, and, in all other cases, upon the date of receipt or refusal, except that whenever under this Agreement a notice is either received on a day which is not a Business Day or is required to be delivered on or before a specific day which is not a Business Day, the day of receipt or required delivery shall automatically be extended to the next Business Day.
All such notices shall be addressed,
if to the Seller, to:
c/o Five Star Senior Living Inc.
400 Centre Street
Newton, Massachusetts 02458
Attn: Mr. Bruce J. Mackey Jr.
Telecopier No. (617) 796-8385
E-Mail:
bmackey@5ssl.com

6






with a copy to:
Ropes & Gray LLP
1211 Avenue of the Americas
New York, New York 10036-8704
Attn: David C. Djaha
Telecopier No. (646) 728-2936
E-Mail: david.djaha@ropesgray.com
If to the Purchaser, to:
c/o Senior Housing Properties Trust
Two Newton Place, Suite 300
255 Washington Street
Newton, Massachusetts 02458
Attn: Mr. David J. Hegarty
Telecopier No. (617) 796-8349
E-Mail:
dhegarty@rmrgroup.com
with a copy to:
Sullivan & Worcester LLP
One Post Office Square
Boston, Massachusetts 02109
Attn: Nicole Rives
Telecopier No. (617) 338-2880
E-Mail:
nrives@sandw.com
By notice given as herein provided, the parties and their respective successors and assigns shall have the right from time to time and at any time during the term of this Agreement to change their respective addresses effective upon receipt by the other party of such notice.
6.4      Waivers, Etc. Any waiver of any term or condition of this Agreement, or of the breach of any covenant, representation or warranty contained herein, in any one instance, shall not operate as or be deemed to be or construed as a further or continuing waiver of any other breach of such term, condition, covenant, representation or warranty or any other term, condition, covenant, representation or warranty, nor shall any failure at any time or times to enforce or require performance of any provision hereof operate as a waiver of or affect in any manner such party’s right at a later time to enforce or require performance of such provision or any other provision hereof. This Agreement may not be amended, nor shall any waiver, change, modification, consent or discharge be effected, except by an instrument in writing executed by or on behalf of the party against whom enforcement of any amendment, waiver, change, modification, consent or discharge is sought.
6.5      Assignment; Successors and Assigns . This Agreement and all rights and obligations hereunder shall not be assignable (a) by the Seller without the written consent of the

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Purchaser; or (b) by the Purchaser without the written consent of the Seller, except that the Purchaser may assign this Agreement, in whole or in part, to one or more entities wholly owned, directly or indirectly, by the Purchaser or the ultimate parent of the Purchaser; provided , however , that, in the event this Agreement shall be assigned to one or more entities wholly owned, directly or indirectly, by the Purchaser or the ultimate parent of the Purchaser, the Purchaser named herein shall remain liable for the obligations of the “Purchaser” hereunder. In addition, the Purchaser, without the consent of the Seller but after having given written notice to the Seller, may elect to vest title in certain assets comprising the Property to one or more designees of the Purchaser, which election shall not be deemed an assignment and the Purchaser shall remain liable for the obligations of the “Purchaser” hereunder; provided , however , that all such designees shall be affiliates or subsidiaries of the Purchaser. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective legal representatives, successors and permitted assigns.
6.6      Severability . If any provision of this Agreement shall be held or deemed to be, or shall in fact be, invalid, inoperative or unenforceable as applied to any particular case in any jurisdiction or jurisdictions, or in all jurisdictions or in all cases, because of the conflict of any provision with any constitution or statute or rule of public policy or for any other reason, such circumstance shall not have the effect of rendering the provision or provisions in question invalid, inoperative or unenforceable in any other jurisdiction or in any other case or circumstance or of rendering any other provision or provisions herein contained invalid, inoperative or unenforceable to the extent that such other provisions are not themselves actually in conflict with such constitution, statute or rule of public policy, but this Agreement shall be reformed and construed in any such jurisdiction or case as if such invalid, inoperative or unenforceable provision had never been contained herein and such provision reformed so that it would be valid, operative and enforceable to the maximum extent permitted in such jurisdiction or in such case.
6.7      Counterparts, Etc. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
6.8      Performance on Business Days . In the event the date on which performance or payment of any obligation of a party required hereunder is other than a Business Day, the time for payment or performance shall automatically be extended to the first Business Day following such date.
6.9      Section and Other Headings . The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
6.10      Time of Essence . Time shall be of the essence with respect to the performance of each and every covenant and obligation, and the giving of all notices, under this Agreement.
6.11      Governing Law . This Agreement shall be governed by, and construed in accordance with, the laws of The Commonwealth of Massachusetts and the parties hereby

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consent to the jurisdiction of the courts of The Commonwealth of Massachusetts with respect to any disagreement as between the parties hereto, , subject to the provisions of the Transaction Agreement, dated as of the date hereof, between Senior Housing Properties Trust and Five Star Senior Living Inc.
6.12      NO LIABILITY OF TRUSTEES . THE DECLARATION OF TRUST ESTABLISHING THE PURCHASER, DATED SEPTEMBER 15, 2017, AS AMENDED AND SUPPLEMENTED, AS FILED WITH THE STATE DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND, PROVIDES THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF THE PURCHASER SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE PURCHASER. ALL PERSONS DEALING WITH THE PURCHASER IN ANY WAY SHALL LOOK ONLY TO THE ASSETS OF THE PURCHASER FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
6.13      Survival . The provisions of this Section VI shall survive the Closing under this Agreement or the earlier termination of this Agreement.

[Signature Page Follows.]


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IN WITNESS WHEREOF , the parties have caused this Agreement to be executed as a sealed instrument as of the date first above written.
SELLER:
FIVE STAR QUALITY CARE - OBX OWNER, LLC ,
a Maryland limited liability company


By:                                     
Bruce J. Mackey Jr.
    President


PURCHASER:
SNH GRANITE GATE LANDS TRUST ,
a Maryland real estate investment trust

By:    
                                
David J. Hegarty
President









EXHIBIT A
THE LAND

[See attached copy.]









EXHIBIT B
PERMITTED EXCEPTIONS

[See attached copy.]









EXHIBIT C
FORM OF ASSIGNMENT AGREEMENT
[See attached copy.]









GENERAL BILL OF SALE
AND ASSIGNMENT AGREEMENT
THIS GENERAL BILL OF SALE AND ASSIGNMENT AGREEMENT (this “ Agreement ”) is made and entered into as of [●], [2017/2018], by FIVE STAR QUALITY CARE – OBX OWNER, LLC, a Maryland limited liability company (the “ Grantor ”), to and for the benefit of SNH GRANITE GATE LANDS TRUST, a Maryland real estate investment trust (the “ Grantee ”).
W I T N E S S E T H:
WHEREAS, the Grantor and the Grantee are parties to that certain Purchase and Sale Agreement dated as of November 8, 2017 (the “ Purchase Agreement ”) with respect to certain real property located adjacent to the assisted living community known as Granite Gate and having an address at 3850 North US Highway 89, Prescott, Arizona 86301; and
NOW, THEREFORE, for and 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, the Grantor and the Grantee hereby agree as follows:
1.    The Grantor does hereby grant, bargain, sell, assign, transfer, deliver and convey unto the Grantee, all of the Grantor’s right, title and interest in and to the Personal Property and the Intangible Property (as such terms are defined in the Purchase Agreement).
2.    This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective legal representatives, successors and permitted assigns.
3.    This Agreement shall be interpreted, construed, applied and enforced in accordance with the laws of The Commonwealth of Massachusetts.
4.    This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
[Remainder of page intentionally left blank.]







IN WITNESS WHEREOF, the Grantor has caused this Agreement to be duly executed under seal as of the date first written above.
GRANTOR:
FIVE STAR QUALITY CARE - OBX OWNER, LLC ,
a Maryland limited liability company


By:                                     
Bruce J. Mackey Jr.
    President






EXHIBIT B
FORM OF MANAGEMENT AGREEMENT

















MANAGEMENT AGREEMENT
FOR
[__________________]

[ l ] [ l ], 201 [ l ]









MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (“ Agreement ”) is entered into as of [ l ] [ l ], 201[ l ], by and between FVE Managers, Inc., a Maryland corporation (“ Manager ”), and [TRS] a Maryland corporation (“ SNH TRS ”).
RECITALS:
WHEREAS, [Owner] (“ Owner ”) owns certain real property and improvements thereon described in Exhibit A attached hereto (collectively, the “ Facility ”), which Owner leases to SNH TRS and which is [adjacent to a property owned by an Affiliate of Owner and] operated as an [independent / assisted] living facility; and
WHEREAS, SNH TRS wishes to appoint Manager as manager of the Facility and Manager desires to accept such appointment and manage the Facility, all on the terms and conditions herein provided;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following terms shall have the following meanings when used in this Agreement:
Section 1.01      AAA ” is defined in Section 15.02(a).
Section 1.02      Accountants ” means RSM US LLP or such other firm of independent certified public accountants as may be approved by SNH TRS and Manager.
Section 1.03      Adverse Regulatory Event ” is defined in Section 8.04(b).
Section 1.04      Affiliate ” means with respect to any Person, (i) any Person who directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with a Person or (ii) any Person of which a Person is the beneficial owner of a twenty-five percent (25%) or greater interest or (iii) any Person who acquires all or substantially all of the assets of a Person. A Person shall be deemed to control another Person if such Person, directly or indirectly, has the power to direct the management, operations or business of such Person. The term “beneficial owner” for this and other definitions, having the meaning given such term in Rule 13d-3 under the Securities Exchange Act of 1934, as amended.
Section 1.05      Agreement ” means this Management Agreement between SNH TRS and Manager, and any amendments hereto.
Section 1.06      Annual Operating Budget ” is defined in Section 7.01.
Section 1.07      Appellate Rules ” is defined in Section 15.02(g).








Section 1.08      Approved Budget ” is defined in Section 7.01.
Section 1.09      Award ” is defined in Section 15.02(e)
Section 1.10      Bankruptcy ” means, with reference to either party:
(a)      the filing by a party of a voluntary petition in bankruptcy or insolvency or a petition for reorganization under any bankruptcy law, or the admission by a party that it is unable to pay its debts as they become due, or the institution of any proceeding by a party for its dissolution;
(b)      the consent by a party to an involuntary petition in bankruptcy or the party’s failure to vacate, within ninety (90) days from the date of entry thereof, any order approving an involuntary petition with respect to such party; or
(c)      the entering of an order, judgment or decree by any court of competent jurisdiction, on the application of a creditor, adjudicating a party as bankrupt or insolvent or approving a petition seeking reorganization or appointing a receiver, trustee, or liquidator of all or a substantial part of a party’s assets, and such order, judgment or decree’s continuing unstayed and in effect for an aggregate of sixty (60) days (whether or not consecutive) in any 12 month period.
Section 1.11      Base Fee ” is defined in Section 3.01.
Section 1.12      Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks in the Commonwealth of Massachusetts are authorized to close.
Section 1.13      Capital Replacements ” means replacements and renewals of FF&E at the Facility and such repairs, maintenance, alterations, improvements, renewals and replacements to the Facility building and its mechanical systems which are classified as capital expenditures under GAAP.
Section 1.14      Change in Control ” means (a) the acquisition by any Person, or two or more Persons acting in concert, of beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission) of 9.8% or more, or rights, options or warrants to acquire 9.8% or more, of the outstanding shares of voting stock or other voting interests of Manager or SNH TRS, as the case may be (either, a “ Relevant Person ”) or of any direct or indirect parent of a Relevant Person (“ Parent ”), or the power to direct the management and policies of a Relevant Person or Parent, directly or indirectly, (b) the merger or consolidation of a Relevant Person or Parent with and into any Person or the merger or consolidation of any Person with and into a Relevant Person or any Parent (other than the merger or consolidation of any Person into a Relevant Person or Parent that does not result in a Change in Control of a Relevant Person or Parent under clauses (a), (c), (d), (e) or (f) of this definition), (c) any one or more sales, conveyances, dividends or distributions to any Person of all or any material portion of the assets (including capital stock or other equity interests) or business of a Relevant Person or Parent, whether or not otherwise a Change in Control, (d) the cessation, for any reason, of the individuals who at the beginning of any twenty-four (24) consecutive month period (commencing on the date hereof) constituted the board of directors of a Relevant Person or any Parent (together with any new directors whose election by such board or

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whose nomination for election by the shareholders of a Relevant Person or any Parent was approved by a vote of a majority of the directors then still in office who were either directors at the beginning of any such period or whose election or nomination for election was previously so approved, but excluding any individual whose initial nomination for, or assumption of, office as a member of such board of directors occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any Person other than a solicitation for the election of one or more directors by or on behalf of the board of directors) to constitute a majority of the board of directors of a Relevant Person or any Parent then in office, or (e) the adoption of any proposal (other than a precatory proposal) by a Relevant Person or any Parent not approved by vote of a majority of the directors of a Relevant Person or any Parent, as the case may be, in office immediately prior to the making of such proposal, or (f) the election to the board of directors of a Relevant Person or any Parent of any individual not nominated or appointed by vote of a majority of the directors of a Relevant Person or any Parent in office immediately prior to the nomination or appointment of such individual.
Section 1.15      Code ” means the Internal Revenue Code of 1986, as amended.
Section 1.16      Condemnation ” means a taking by Governmental Authority in an eminent domain, condemnation, compulsory acquisition or similar proceeding for any public or quasi-public use or purpose.
Section 1.17      Construction Supervision Fee ” means an amount equal to three percent (3%) of the amount funded by SNH TRS for Capital Replacements which SNH TRS is required to fund pursuant to Section 3.03 less the amount of any construction supervision (or similar) fees paid to any third party in connection with such Capital Replacements which are funded by SNH TRS.
Section 1.18      Discount Rate ” means the yield reported as of 10:00 A.M. on the Business Day prior to the date of termination of this Agreement on the display designated as “Page PX1” (or such other display as may replace Page PX1 on Bloomberg Financial Markets (“Bloomberg”) or, if Page PX1 (or its successor screen on Bloomberg) is unavailable, the Telerate Access Service screen which corresponds most closely to Page PX1) for the most recently issued actively traded U.S. Treasury securities having a maturity equal to the number of years between the date of termination and the scheduled expiration date of the Term (including any extension of the Term, but not in excess of twenty (20) years in any event), plus 300 basis points, or if such yields shall not be reported as of such time or the yields reported as of such time shall not be ascertainable (including by way of interpolation), the Treasury Constant Maturity Series Yields reported for the latest day for which such yields shall have been so reported as of the Business Day prior to the date of termination of this Agreement in Federal Reserve Statistical Release H.15 (519) (or any comparable successor publication) for actively traded U.S. Treasury securities having the same maturity, plus 300 basis points. If necessary, U.S. Treasury bill quotations shall be converted to bond equivalent yields in accordance with accepted financial practice and interpolating linearly between reported yields.
Section 1.19      Disputes ” is defined in Section 15.02(a).

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Section 1.20      Event of Default ” is defined in Section 14.01, as to Manager, and in Section 14.02, as to SNH TRS.
Section 1.21      Facility ” is defined in the recitals to this Agreement.
Section 1.22      Facility Expenses ” means all costs and expenses related to the maintenance, operation, repair, renovation, replacement and staffing of the Facility that are normally charged as operating expense under GAAP, including: (a) costs of inventory and supplies (including Household Replacements) used in the operation of the Facility; (b) amounts payable to third parties or expenses otherwise incurred with respect to the marketing, advertising, leasing, use, repair or maintenance of the Facility and any expense incurred in order to obtain or maintain any operating permits, licenses, approvals or certifications, including any licensing or registration fees and expenses associated therewith; (c) amounts payable to third parties for billing and collections of amounts due for goods and services provided to patients and Residents, including for the collection of delinquent rentals and other costs required in connection with the enforcement of any lease or resident agreement; (d) amounts payable to third parties under service contracts; (e) amounts payable to third parties for auditing (including any audits that may be required pursuant to Section 6.02), tax preparation, accounting and risk management services and legal fees; (f) all Personnel Costs incurred by Manager for all personnel employed, and independent contractors who provide services, at the Facility or whose services are entirely allocable to the Facility (or a pro rata share of such Personnel Costs in the case of services provided by a regional business manager or a Shared Employee (defined below)); (g) costs of all utilities serving the Facility; (h) costs of insurance premiums for insurance at the Facility; (i) the Base Fee payable to Manager; (j) costs incurred by Manager for electronic data processing equipment, systems, software or services used at the Facility; (k) all Impositions and all related costs (subject to the requirements of Section 5.05); (l) all expenses, including settlement payments, penalties, fines, repayments, consultant or legal fees and any other costs incurred, related to audits, investigations, inquiries or reviews of the Facility or SNH TRS or Owner by a Governmental Authority, accreditation body or a contractor of a Governmental Authority; (m) any other recoupments, repayments, adjustments, reconciliations or other payments made or returned to Residents or third party payors of the Facility and any related consultant and legal fees; (n) costs payable to prevent, cure or correct any violation of Legal Requirements with respect to the Facility or SNH TRS or Owner; and (o) costs incurred to litigate, negotiate and/or settle any civil claim, action or litigation, including any amounts payable pursuant to a settlement, judgment or damages award and related legal fees.
If any Facility Expenses (e.g., advertising, information technology, reporting and other systems for the operation of the Facility and personnel training), but not including Personnel Costs, are shared with other senior housing facilities managed or operated by Manager or its Affiliates (the “Shared Expenses”), whether owned by SNH TRS or its Affiliates or other parties, Manager shall identify such Shared Expenses in the Annual Operating Budget and the basis for allocation. In addition, Manager may allocate as a Facility Expense a pro rata share of the Personnel Costs Manager incurs with respect to any employee or independent contractor, including for Home Office Personnel to the extent allowed by Section 4.03, who provides services at the Facility and at other senior housing facilities managed or operated by Manager (a “Shared Employee”) in accordance

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with an allocation formula approved by SNH TRS, which approval shall not be unreasonably withheld, conditioned or delayed.
Facility Expenses shall not include, unless otherwise approved by SNH TRS: costs for Home Office Personnel (except as allowed by Section 4.03), costs for Manager’s in-house accounting and reporting systems, software or services to the extent used exclusively at Manager’s home office, other home office and corporate level expenses and travel expenses of personnel assigned to work exclusively at the Facility, except for such Facility related travel expenses as are generally reimbursed or paid pursuant to the Facility’s policies and procedures.
Section 1.23      FF&E ” means furniture, fixtures, furnishings, soft goods, case goods, vehicles, systems and equipment.
Section 1.24      GAAP ” means generally accepted accounting principles as adopted by the American Institute of Certified Public Accountants.
Section 1.25      Governmental Authority ” means any United States federal, state or local government or political subdivision thereof, or any court, administrative agency or commission or other quasi-governmental authority or instrumentality or any subdivision thereof.
Section 1.26      [“ Granite Gate Facility ” means the independent living facility owned by an Affiliate of Owner and managed by Manager which is adjacent to the Facility.]
Section 1.27      [“ Granite Gate Facility Management Agreement ” means the Management Agreement dated [●], 2017 by and between Manager and SNH Granite Gate Tenant LLC pursuant to which Manager manages the Granite Gate Facility.]
Section 1.28      [“ Granite Gate Lands ” means the real property located adjacent to the Facility which is owned by an Affiliate of Owner and managed by Manager.]
Section 1.29      Gross Revenues ” means all revenues derived from operating the Facility, determined in accordance with GAAP, including: income (from both cash and credit transactions, net of any fee therefor and net of any contractual allowances granted to third party payors) from community fees, monthly occupancy fees, health care fees, third party reimbursement or payments and any and all other fees and payments received from or on behalf of Residents; income from food and beverage and catering sales; income from vending machines, and proceeds, if any, from business interruption insurance and all other revenues from the operation of the Facility; provided that, Gross Revenues shall not include: (i) gratuities to employees at the Facility, (ii) federal, state or municipal excise, sales or use taxes or similar taxes imposed at the point of sale and collected directly from Residents or guests of the Facility or included as part of the sales price of any goods or services, (iii) proceeds from the sale of FF&E and any other capital asset, (iv) interest received or accrued with respect to the monies in any accounts referred to in Section 5.04, (v) proceeds of any financing or refinancing of the Facility, (vi) proceeds of any insurance policy (except business interruption insurance) or condemnation or other taking, (vii) any cash refunds, rebates or discounts to Residents of the Facility, cash discounts and credits of a similar nature, given, paid or returned in the course of obtaining Gross Revenues or components thereof to the extent not reflected in contractual

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allowances, (viii) proceeds from any sale of the Facility or any other capital transaction, (ix) Resident funds on deposit or security deposits until such time and to the extent as the same are applied to current fees due for services rendered, (x) awards of damages, settlement proceeds and other payments received by SNH TRS in respect of any litigation other than litigation to collect fees due for services rendered at the Facility and (xi) payments under any policy of title insurance. Any community fees or deposits that are refunded to a Resident shall be deducted from Gross Revenues during the month in which such refunds are made, if previously included in Gross Revenues.
Section 1.30      Home Office Personnel ” is defined in Section 4.03.
Section 1.31      Household Replacements ” means supply items including linen, china, glassware, silver, uniforms, and similar items.
Section 1.32      Impositions ” means all levies, assessments and similar charges, including: all water, sewer or similar fees, rents, rates, charges, excises or levies, vault license fees or rentals; license and regulatory approval fees; inspection fees and other authorization fees and other governmental charges of any kind or nature whatsoever (and all interest and penalties thereon), which at any time during or in respect of the Term may be assessed, levied, confirmed or imposed on the Facility, SNH TRS or Manager with respect to the Facility or the operation thereof, or otherwise in respect of or be a lien upon the Facility (including, on any of the inventories or Household Replacements now or hereafter located therein). Impositions shall not include (i) any income or franchise taxes payable by SNH TRS or Manager or (ii) any franchise, corporate, capital levy or transfer tax imposed on SNH TRS or Manager.
Section 1.33      Incentive Fee ” is defined in Section 5.01.
Section 1.34      Intellectual Property ” means (i) all software developed and owned by Manager or an Affiliate of Manager; and (ii) all written manuals, instructions, policies, procedures and directives issued by Manager to its employees at the Facility regarding the procedures and techniques to be used in operation of the Facility.
Section 1.35      Interest Rate ” means an annual rate of 8%, but not higher than the highest rate permitted by law.
Section 1.36      Invested Capital ” means an amount equal to the purchase price of the Facility paid by Owner (including acquisition expenses and the principal amount of any indebtedness secured by a Mortgage and any refinancing thereof), increased by any amounts paid by SNH TRS, or Owner, for Capital Replacements (and excluding amounts funded by SNH TRS for Working Capital) as reflected on the books and records of Owner and SNH TRS, less any amounts representing proceeds from the sale of Capital Replacements or any other capital asset, and in all events, subject to adjustment based on any audit conducted pursuant to Section 6.03(b).
Section 1.37      Lease ” is defined in Section 8.02(a).
Section 1.38      Legal Requirements ” means any permit, license, certificate, law, code, rule, ordinance, regulation or order of any Governmental Authority, Board of Fire Underwriters or any

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body similar to any of the foregoing having jurisdiction over the business or operation of the Facility or the matters which are the subject of this Agreement, including any Resident care or health care, building, zoning or use laws, ordinances, regulations or orders, environmental protection laws and fire department rules.
Section 1.39      Manager ” is defined in the initial paragraph of this Agreement.
Section 1.40      Management Fees ” means the Base Fee and the Incentive Fee.
Section 1.41      Mortgage ” means any mortgage or deed of trust recorded against the Facility.
Section 1.42      Owner ” is defined in the Recitals to this Agreement.
Section 1.43      Person ” means any natural person, corporation, limited liability company, trust, joint venture, partnership, Governmental Authority or other entity.    
Section 1.44      Personnel Costs ” means total cash compensation, costs of training programs, hiring expenses, severance payments, payroll taxes, workers’ compensation, travel expenses, incentive programs (e.g., workers’ compensation and risk management related incentive programs) and employee fringe benefits payable to such personnel.
Section 1.45      Proprietary Marks ” means all trademarks, trade names, symbols, logos, slogans, designs, insignia, emblems, devices and service marks which are used by Manager to identify the Facility, whether they are now or hereafter owned by Manager or any of its Affiliates, and whether or not they are registered under the laws of the United States.
Section 1.46      Residents ” means the individuals residing at the Facility.
Section 1.47      Rules ” is defined in Section 15.02(a).
Section 1.48      SNH TRS ” is defined in the initial paragraph to this Agreement.
Section 1.49      SNH TRS Priority Return ” means an annual amount equal to seven percent (7%) of Invested Capital.
Section 1.50      State ” means the state in which the Facility is located and any regulatory agencies within the State with overview authority or other authority over the Facility, and any other state that asserts regulatory authority over the Facility or with respect to its Residents, to the extent thereof.
Section 1.51      Term ” is defined in Section 12.01.
Section 1.52      Termination Fee ” means an amount equal to the present value of the payments that would have been made to Manager between the date of termination and the scheduled expiration date of the Term (including any extension of the Term, but not for a period in excess of twenty (20) years in any event) as Management Fees if this Agreement had not been terminated,

7







calculated based upon the average of the Management Fees earned in each of the three (3) calendar years ended prior to the Termination Date, discounted at an annual rate equal to the Discount Rate.
Section 1.53      Unsuitable for Use ” means, as a result of damage, destruction or partial Condemnation, the Facility cannot be reasonably expected to be restored to its prior condition within nine (9) months and/or, in the good faith judgment of Manager, after restoration or partial Condemnation the Facility cannot be operated on a commercially practicable basis.
Section 1.54      Working Capital ” means funds used in the day-to-day operation of the Facility.
ARTICLE II
APPOINTMENT OF MANAGER

Section 2.01      Appointment of Manager . SNH TRS hereby appoints Manager as the sole and exclusive Manager for the daily operation and management of the Facility. Manager accepts such appointment and further agrees to:
(a)      perform the duties of Manager under this Agreement in compliance with this Agreement, including Section 4.06;
(b)      (i) supervise and direct the management and operation of the Facility in a financially sound, cost-effective and efficient manner; and (ii) establish and maintain programs to promote the most effective utilization of the Facility’s services and maximize occupancy and Gross Revenues;
(c)      provide quality services to Residents in a manner complying with all Legal Requirements and the form of resident agreement in use at the Facility;
(d)      establish appropriate marketing programs;
(e)      maintain well trained, quality staff, in sufficient number, at the Facility;
(f)      institute (i) a sound financial accounting system for the Facility, (ii) adequate internal fiscal controls through proper budgeting, accountant procedures and timely financial performance and (iii) sound billing and collection procedures and methods; and
(g)      diligently monitor and assure physical plant maintenance and housekeeping consistent with a first class independent or assisted living facility (or such other type of senior living facility as the Facility may then be operated as).
ARTICLE III
PAYMENTS TO MANAGER; WORKING CAPITAL; CAPITAL REPLACEMENTS; INSUFFICIENT FUNDS
Section 3.01      Management Fees . As compensation for the services to be rendered by Manager under this Agreement, Manager shall receive a management fee (“ Base Fee ”) during the

8







Term equal to five percent (5%) of the Gross Revenues of the Facility and, if applicable, the Incentive Fee. No amount paid hereunder is intended to be, nor shall it be construed to be, an inducement or payment for referral of patients by either party or any of its Affiliates to the other party or any of its Affiliates. The compensation being paid constitutes the fair market value of the services being provided in light of the costs being incurred and the time, energy, training, expertise and skills required therefor, and is consistent with amounts that would result from arm’s-length negotiations between unrelated parties.
Section 3.02      Working Capital . Upon execution of this Agreement, SNH TRS will advance to Manager, as Working Capital, an amount equal to $1,500, multiplied by the number of units at the Facility. Manager may, from time to time, request SNH TRS to fund additional amounts as Working Capital to pay Facility Expenses and if the parties do not agree on such additional amounts, the matter shall be referred to arbitration.
Section 3.03      Capital Replacements . The cost of all Capital Replacements in an Approved Budget shall be funded by SNH TRS. Funding will be made by SNH TRS from time to time, after receipt by SNH TRS of such information from Manager regarding the acquisition, initiation or implementation of any Capital Replacements and the progress and performance thereof as SNH TRS may reasonably require. In consideration of Manager’s management of Capital Replacements, SNH TRS shall pay Manager a Construction Supervision Fee for any Capital Replacements required to be made or approved by SNH TRS hereunder. Manager shall include the Construction Supervision Fee in the budget for the Capital Replacement for approval by SNH TRS. The Construction Supervision Fee will be paid monthly in arrears based on Capital Replacements made in such month.
Section 3.04      Insufficient Funds . If at any time available Working Capital is insufficient to pay Facility Expenses and SNH TRS has not timely funded additional amounts for such purpose or SNH TRS has not timely funded Capital Replacements, Manager shall have no obligation to advance its own funds therefor and is relieved of any obligation to pay Facility Expenses or the cost of Capital Replacements to such extent. If Manager does advance its own funds, at such time as SNH TRS advances funds to reimburse Manager, whether by agreement or pursuant to an Award, SNH TRS shall pay Manager interest on such amounts at the Interest Rate from the date of Manager’s advance of funds to the date of reimbursement. If the Award includes interest, SNH TRS shall be entitled to offset such interest against its obligation under this Section 3.04.
ARTICLE IV
MANAGEMENT SERVICES
Section 4.01      Authority of Manager and Management Services . Subject to the terms of this Agreement, Manager shall have discretion and control, free from interference, interruption or disturbance from SNH TRS or those claiming by, through or under SNH TRS, in all matters relating to the day-to-day management and operation of the Facility. Such discretion and control shall include the authority to negotiate and execute contracts in its own name, in the name of and on behalf of SNH TRS and/or the Facility, in each case, subject to the terms of this Agreement. Manager shall implement all aspects of the operation of the Facility in accordance with the terms of this Agreement, and shall have responsibility and commensurate authority for all such activities. Without

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limiting the generality of the foregoing, in addition to any other services set forth in this Agreement, Manager shall, consistent with the Approved Budget:
(a)      enter into all contracts, leases and agreements required in the ordinary course of business for the supply, operation, maintenance of and provision of services to the Facility (including food procurement, building services (including cleaning, trash removal, snow plowing, landscaping, carpet cleaning and pest control), utilities and licenses and concessions for commercial space in the Facility); provided that, unless specifically set forth in the Approved Budget, Manager shall obtain the written consent of SNH TRS before entering into any contract, lease or agreement not terminable on ninety (90) days notice without payment of premium or penalty, which consent shall not be unreasonably withheld, conditioned or delayed;
(b)      purchase such inventories, provisions, food, supplies, Household Replacements and other expendable items as are necessary to operate and maintain the Facility in the manner required pursuant to this Agreement;
(c)      provide care to Residents in compliance with the resident agreements in use at the Facility and set all Resident fees and charges including those for accommodation, food services and care services;
(d)      in its own name and on behalf of and, with the consent of SNH TRS, in the name of SNH TRS, which consent shall not be unreasonably withheld, conditioned or delayed, to institute and/or defend, as the case may be, any and all legal actions or proceedings relating to the management and operation of the Facility;
(e)      prepare a marketing plan and direct all the marketing efforts; and
(f)      oversee, manage and direct all day-to-day operations.
Section 4.02      Hiring and Training of Staff . Manager shall have in its employ or under contract at all times a sufficient number of capable employees or independent contractors meeting all Legal Requirements, to enable it to properly, adequately, safely and economically manage, operate, maintain and account for the Facility. All matters pertaining to the retention, employment, supervision, compensation, training, promotion and discharge of such employees or independent contractors are the responsibility of Manager. All such individuals shall be employees or independent contractors of Manager. Manager shall comply with all applicable Legal Requirements having to do with employers including, worker’s compensation, unemployment insurance, hours of labor, wages, working conditions and withholding of taxes from employee wages. Manager shall have the power to hire, dismiss or transfer the executive director at the Facility, provided Manager shall keep SNH TRS informed with respect to Manager’s intentions to transfer or terminate the executive director and shall consult with SNH TRS with respect to the hiring of a replacement, it being understood that any final decision shall be made by Manager. If SNH TRS becomes dissatisfied with the performance of the executive director, SNH TRS shall have the right to confer with representatives of Manager to discuss the replacement of the executive director or other action, which shall be within the discretion of Manager.

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Section 4.03      Manager’s Home Office Personnel . Manager may, in its discretion, provide its services under this Agreement through its Home Office Personnel, provided that the Personnel Costs for such Home Office Personnel shall not be a Facility Expense unless agreed to in advance by SNH TRS. Manager shall further make its Home Office Personnel available for consultation and advice related to the Facility without charge other than its Management Fee. If SNH TRS requests a type, form or level of service from Manager’s Home Office Personnel of a nature that would otherwise be a Facility Expense, Manager shall provide such services by Home Office Personnel for an additional cost to be agreed to in advance by Manager and SNH TRS, which shall be a Facility Expense. The term “ Home Office Personnel ” shall include Manager’s home office staff with experience in areas such as accounting, budgeting, finance, legal, human resources, construction, development, marketing, food service and purchasing, among other areas.
Section 4.04      Resident Agreements . Manager shall submit any forms of resident agreements or other occupancy agreements used in conjunction with the Facility for SNH TRS’s approval before they are used. Manager shall act as an authorized representative of SNH TRS in executing resident agreements and occupancy agreements, but Manager shall not enter into such agreements for a duration of more than one year without the prior consent of SNH TRS, which consent shall not be unreasonably withheld, conditioned or delayed.
Section 4.05      Contracts with Affiliates . Except for those Affiliates listed on Schedule 4.05, Manager shall not engage or pay any compensation to any Affiliate of Manager for the provision of services in connection with this Agreement unless (a) such party is fully qualified and experienced to provide the required services, (b) both the scope of services and the compensation payable to such Affiliate for the services are consistent with then current market standards or comparable arm’s-length transactions, and (c) Manager discloses such engagement to SNH TRS as a transaction with an Affiliate of Manager.
Section 4.06      Legal Requirements .
(a)      Subject to SNH TRS’s discharge of its obligations under Section 4.06(b), Manager shall obtain and maintain on behalf of and in the name of the Facility and/or SNH TRS (as applicable) all permits, licenses and certificates required by any Governmental Authority for the use, operation or management of the Facility as a licensed independent or assistant living facility (or such other type of senior living facility as the Facility may then be operated as) providing personal care services in the State.
(b)      SNH TRS agrees: (i) to sign promptly all applications for permits, licenses, and certificates necessary for the use, operation and management of the Facility required by any Governmental Authority and all cost reports and other submissions for reimbursement or other payments related to the goods and services furnished to patients and Residents at the Facility and (ii) to provide promptly such information and perform such acts as are required in order for Manager to complete any such application and/or obtain and/or maintain any such permits, licenses, or certificates and/or prepare, complete and/or file any such cost reports or other submissions for payments related to the goods and services furnished to patients and Residents at the Facility.

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(c)      Manager shall cause all things to be done in and about the Facility as may be reasonably necessary to comply with all applicable Legal Requirements respecting the use, operation and management of the Facility. Manager shall keep its corporate organization in good standing in the State and shall maintain all corporate permits and licenses required by the State.
(d)      If either party receives any written notice, report or other correspondence from a Governmental Authority which asserts a deficiency relating to the operation of the Facility or otherwise relates to the actual or threatened suspension, revocation, or any other action adverse to any permit, license or certificate required or necessary to use, operate or maintain the Facility, such party shall give the other party prompt notice thereof and not later than three (3) Business Days after receipt.
ARTICLE V
COLLECTIONS AND PAYMENTS
Section 5.01      Collection and Priorities for Distribution of Gross Revenues . Manager shall collect all Gross Revenues and shall apply the Gross Revenues in the following order of priority:
(1)     First, to pay all Facility Expenses (excluding the Base Fee),
(2)     Second, to Manager, to pay the Base Fee and any interest that may have accrued pursuant to Section 5.02,
(3)     Third, to SNH TRS, to pay an amount equal to the SNH TRS Priority Return, and
(4)     Fourth, of the balance, to pay twenty percent (20%) (the “ Incentive Fee ”) to Manager and eighty percent (80%) to SNH TRS.
Section 5.02      Timing of Payments . Payment of the Facility Expenses, excluding the Base Fee, shall be made in the ordinary course of business to the extent of available Gross Revenues and Working Capital. The Base Fee and accrued interest, if any, shall be paid on the first Business Day of each calendar month, in advance, based upon Manager’s then estimate of the prior month’s Gross Revenues. The SNH TRS Priority Return and accrued interest, if any, shall be paid on the first Business Day of each calendar month, in advance in approximately equal monthly installments, based upon Invested Capital most recently reported to Manager by SNH TRS. The Base Fee and SNH TRS Priority Return shall be subject to adjustment by increasing or decreasing the payment due in the following month based upon the Gross Revenues reflected in the monthly financial statements and increases or decreases in Invested Capital reported to Manager by SNH TRS, as the case may be. If the Base Fee is not paid in full for any calendar year, the unpaid amount shall bear interest at the Interest Rate and such unpaid amount and accrued interest shall continue to be payable pursuant to clause (2) of Section 5.01 in subsequent years until paid in full. If the SNH TRS Priority Return is not paid in full for any calendar year, the unpaid amount shall not continue to be payable pursuant to clause (3) of Section 5.01 in subsequent years. Amounts payable pursuant to clause (4) of Section 5.01 shall be paid on the last Business Day of the January following the end of each calendar year, in

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arrears, and shall be based upon SNH TRS’s annual financial statement for such calendar year. Additional adjustments to all payments will be made on an annual basis based upon any audits conducted pursuant to Section 6.03.
Section 5.03      Credits and Collections . Manager shall adopt credit and collection policies and procedures. Manager shall institute monthly billing by the Facility and take all steps necessary to collect accounts and monies owed to the Facility, which may include the institution of legal proceedings.
Section 5.04      Depositories for Funds . Manager shall maintain one or more accounts in the name of SNH TRS in one or more banks selected by Manager and approved by SNH TRS and may deposit therein all Gross Revenues and other funds collected or received by Manager and due to SNH TRS as owner of the Facility. Manager shall be authorized to access the accounts without the approval of SNH TRS, subject to any limitation on the maximum amount of any check, if any, established between Manager and SNH TRS as part of the Annual Operating Budget. SNH TRS shall be a signatory on all accounts maintained with respect to the Facility, and SNH TRS shall have the right to require that SNH TRS’s signature be required on all checks/withdrawals after the occurrence of an Event of Default by Manager under this Agreement. SNH TRS shall provide such instructions to the applicable bank(s) as are necessary to permit Manager to implement Manager’s rights and obligations under this Agreement, provided the failure of SNH TRS to provide such instructions shall relieve Manager of its obligations hereunder until such time as such failure is cured.
Section 5.05      Impositions . All Impositions which accrue during the Term (or are properly allocable to such Term under GAAP) shall be paid by Manager before any fine, penalty or interest is added thereto or lien placed upon the Facility or this Agreement, unless payment thereof is stayed. SNH TRS shall within five (5) Business Days after the receipt of any invoice, bill, assessment, notice or other correspondence relating to any Imposition, furnish Manager with a copy thereof. Either SNH TRS or Manager may initiate proceedings to contest any Imposition (in which case each party agrees to sign the required applications and otherwise cooperate with the other party in expediting the matter). Unless part of an Approved Budget, incurrence of all costs by Manager of any negotiations or proceedings with respect to any such contest shall be subject to SNH TRS’s prior consent, which shall not be unreasonably withheld, conditioned or delayed. Nothing in this Agreement is intended to modify the respective responsibility that the parties would otherwise have to pay such Impositions as may be due and payable.
ARTICLE VI
ACCOUNTING; FINANCIAL STATEMENTS; AUDIT
Section 6.01      Accounting . Manager shall establish and administer accounting procedures and controls and systems for the development, preparation and safekeeping of records and books of accounting relating to the business and financial affairs of the Facility, including payroll, accounts receivable and accounts payable.
Section 6.02      Financial Statements and Reports . Not later than ten (10) Business Days after the end of each calendar month, Manager shall prepare and deliver to SNH TRS a balance

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sheet and related statement of income and expense for such calendar month and for the then current calendar year to date, certified by Manager’s Controller on a monthly basis and by Manager’s Chief Financial Officer on a quarterly basis as being true and correct to the best of his/her knowledge, with a comparison to the Approved Budget.
The monthly financial statements shall be in such format as SNH TRS may reasonably require. Manager shall provide such other financial statements as SNH TRS may from time to time reasonably request. In addition, at the request of SNH TRS, any or all of the financial statements shall be audited by the Accountants as soon as practicable after such request.
Upon request, Manager shall also provide SNH TRS with information relating to the Facility, Manager and its Affiliates that (i) may be required in order for SNH TRS or its Affiliates to prepare financial statements and to comply with any applicable tax and securities laws and regulations, (ii) may be required for SNH TRS or any of its Affiliates to prepare federal, state, provincial or local tax returns or (iii) is of the type that Manager customarily prepares for other owners of facilities it manages, and such other or special reports as Manager may from time to time determine are necessary or as SNH TRS may reasonably request.
Section 6.03      Audit Rights .
(a)      SNH TRS and its representatives shall have the right at all reasonable times during usual business hours to audit, examine, and make copies of books of account (including copying any records contained in electronic media) maintained by Manager with respect to the Facility, which audit or examination may cover any time period during the Term at SNH TRS’s discretion. Such right may be exercised through any agent or employee designated by SNH TRS or by an independent public accountant designated by SNH TRS.
(b)      Manager and its representatives shall have the right at all reasonable times during usual business hours to audit, examine, and make copies of books of account (including copying any records contained in electronic media) maintained by SNH TRS with respect to the Invested Capital and Capital Requirements, which audit or examination may cover any time period during the Term at Manager’s discretion. Such right may be exercised through any agent or employee designated by Manager or by an independent public accountant designated by Manager.
ARTICLE VII
ANNUAL OPERATING BUDGET
Section 7.01      Annual Operating Budget . Manager shall, on or before December 20 in each calendar year during the Term, deliver to SNH TRS for SNH TRS’s approval, an annual operating budget for the Facility for the next calendar year (the “ Annual Operating Budget ”) which shall include separate line items for Capital Replacements and set forth an estimate, on a monthly basis, of Gross Revenues and Facility Expenses, together with an explanation of anticipated changes to Resident charges, payroll rates and positions, non-wage cost increases, the proposed methodology and formula employed by Manager in allocating shared Facility Expenses, and all other factors differing from the then current calendar year. The Annual Operating Budget shall be accompanied

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by a narrative description of operating objectives and assumptions. If SNH TRS does not approve an Annual Operating Budget or any portion thereof, it shall do so, to the extent practicable, on a line item basis. Manager and SNH TRS shall cooperate to resolve disputed items, provided if the Annual Operating Budget is not approved by SNH TRS within thirty (30) days of SNH TRS’s receipt, Manager shall operate under the expired Annual Operating Budget until a new Annual Operating Budget is approved, provided that line items for Impositions, insurance premiums and utilities shall be the amounts actually incurred for such items. If agreement on the Annual Operating Budget cannot be reached within forty-five (45) days of SNH TRS’s receipt (which time may be extended upon mutual agreement of the parties), the matter shall be resolved by arbitration. The Annual Operating Budget as approved by SNH TRS, or as resolved by arbitration, will be the “ Approved Budget ” for the applicable calendar year. Manager will obtain SNH TRS’s prior approval for any expenditure which will, or is reasonably expected to, result in a variance of five percent (5%) or more of any Approved Budget. For that portion of the Term ending December 31, [2017], except as otherwise agreed by SNH TRS and Manager, the Approved Budget will be the budget of the prior manager of the Facility, a copy of which has been previously provided to Manager.
ARTICLE VIII
TAX MATTERS; REIT QUALIFICATION
Section 8.01      Tax Matters . Manager shall use commercially reasonable efforts to operate the Facility in a manner to best assure that SNH TRS and the Facility receive all benefits of applicable tax exemptions and/or credits available thereto from any Governmental Authority. Manager will prepare or cause to be prepared all tax returns required in the operation of the Facility, which include payroll, sales and use tax returns, personal property tax returns and business, professional and occupational license tax returns. Manager shall timely file or cause to be filed such returns as required by the State; provided that, SNH TRS shall promptly provide all relevant information to Manager upon request, and any late fees or penalties resulting from delays caused by SNH TRS shall be borne by SNH TRS. Manager shall not be responsible for the preparation of SNH TRS’s federal or state income tax returns, provided Manager shall cooperate fully with SNH TRS as may be necessary to enable SNH TRS to file such federal or state income tax returns, including by preparing data reasonably requested by SNH TRS and submitting it to SNH TRS as soon as reasonably practicable following such request.
Section 8.02      REIT Qualification .
(a)      Manager shall take all commercially reasonable actions reasonably requested by SNH TRS or Owner for the purpose of qualifying Owner’s rental income from SNH TRS under the lease between Owner and SNH TRS for the Facility (“ Lease ”) as “rents from real property” pursuant to Sections 856(d)(2), 856(d)(8)(B) and 856(d)(9) of the Code. Manager shall not be liable if such reasonably requested actions, once implemented, fail to have the desired result of qualifying Owner’s rental income from SNH TRS under the Lease as “rents from real property” pursuant to Sections 856(d)(2), 856(d)(8)(B) and 856(d)(9) of the Code. This Section 8.02 shall not apply in situations where an Adverse Regulatory Event has occurred; instead, Section 8.04 shall apply.

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(b)      If SNH TRS or Owner wish to invoke the terms of Section 8.02(a), SNH TRS or Owner (as appropriate) shall contact Manager and the parties shall meet with each other to discuss the relevant issues and to develop a mutually-agreed upon plan for implementing such reasonably requested actions.
(c)      Any additional out-of-pocket costs or expenses incurred by Manager in complying with such a request shall be borne by SNH TRS (and shall not be a Facility Expense). SNH TRS shall reimburse Manager for such expense or cost promptly, but not later than five (5) Business Days after such expense or cost is incurred.
Section 8.03      Further Compliance with Section 856(d) of the Code . Commencing with the date of this Agreement and continuing throughout the Term, Manager intends to qualify as an “eligible independent contractor” as defined in Section 856(d)(9)(A) of the Code, and:
(a)      Manager shall use commercially reasonable efforts not to cause the Facility to fail to qualify as “qualified health care property” as defined in Section 856(e)(6)(D)(i) for purposes of Section 856(d)(8)(B) and Section 856(d)(9) of the Code;
(b)      Manager shall not own, directly or indirectly or constructively (within the meaning of Section 856(d)(5) of the Code), more than thirty-five percent (35%) of the shares of Senior Housing Properties Trust, a Maryland real estate investment trust, whether by vote, value or number of shares, and Manager shall otherwise comply with any regulations or other administrative or judicial guidance existing under said Section 856(d)(5) of the Code with respect to such ownership limits; Manager shall cause its ultimate parent, Five Star Senior Living Inc. to enforce the restrictions in its charter documents regarding five percent (5%) or greater owners;
(c)      Manager shall be actively engaged (or shall, within the meaning of Section 856(d)(9)(F) of the Code, be related to a person that is so actively engaged) in the trade or business of operating “qualified health care property” (defined below) for a person who is not a “related person” within the meaning of Section 856(d)(9)(F) of the Code with respect to Owner or SNH TRS. For these purposes, the parties agree that the activities, as of the date of this Agreement, of Manager’s affiliate, FSQ, Inc., a Delaware corporation and a related person as to Manager within the meaning of Section 856(d)(9)(F) of the Code, including in particular the management contracts pursuant to which FSQ, Inc. has been and is formally engaged as manager by other affiliates (but not subsidiaries) of Manager, render Manager in compliance with the previous sentence. Manager, without the prior consent of SNH TRS, shall not permit or suffer FSQ, Inc.’s level of management activity in respect of “qualified health care properties” to be materially less than its level of such activity on the date of this Agreement;
(d)      A “qualified health care property” is defined by reference to Section 856(e)(6)(D)(i) of the Code and means any real property, and any personal property incident to such real property, which is a “health care facility” described in Section 856(e)(6)(D)(ii) or is necessary or incidental to the use of a health care facility. A “health care facility” means: a hospital; a nursing facility; an assisted living facility; a congregate care facility; a qualified continuing care facility; or another licensed facility which extends medical or nursing or

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ancillary services to patients and which is operated by a provider of such services eligible for participation in the Medicare program under title XVIII of the Social Security Act with respect to such facility; and
(e)      Manager, without the prior consent of SNH TRS, which consent shall not be unreasonably withheld, conditioned or delayed, shall not permit or suffer:
(i)      Manager to fail to continue as a corporation under state law and taxable under the Code as an association;
(ii)      Manager’s affiliate, FSQ, Inc., a Delaware corporation, to fail to be a corporation under state law and taxable under the Code as an association; or
(iii)      for so long as Owner or SNH TRS or any Affiliate of Owner or SNH TRS shall seek to qualify as a “real estate investment trust” under the Code, Manager to be reorganized, restructured, combined, merged or amalgamated with any Affiliate (as to Manager) in such manner that any such Affiliate would, or could, be expected to adversely affect (including, e.g., by application of any Person’s actual “disregarded entity” status under the Code) the status that Manager has as a Code Section 856(d)(9)(A) “eligible independent contractor” at a “qualified health care property” owned or leased by Owner or SNH TRS.
Section 8.04      Adverse Regulatory Event .
(a)      In the event of an Adverse Regulatory Event arising from or in connection with this Agreement, SNH TRS and Manager shall work together in good faith to amend this Agreement to eliminate the impact of such Adverse Regulatory Event; provided, however, Manager shall have no obligation to materially reduce its rights or materially increase its obligations under this Agreement, all taken as a whole, or to bear any out-of-pocket costs or expenses under this Section 8.04. Manager shall not be liable if any such amendment, once operative, fails to have the desired result of eliminating the impact of an Adverse Regulatory Event.
(b)      For purposes of this Agreement, the term “Adverse Regulatory Event” means any time that a new law, statute, ordinance, code, rule, regulation or an administrative or judicial ruling imposes, or could impose in Owner’s or SNH TRS’s reasonable opinion, any material threat to Senior Housing Properties Trust’s qualification for taxation as a “real estate investment trust” under the Code or to the treatment of amounts paid to Owner under the Lease as “rents from real property” under Section 856(d) of the Code.
(c)      SNH TRS shall promptly inform Manager of any Adverse Regulatory Event of which it is aware and which it believes likely to impair compliance with respect to Section 856(d) of the Code.


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ARTICLE IX
FINANCING; INSPECTION
Section 9.01      Financing of the Facility . Manager shall cooperate with Owner and SNH TRS in connection with any financing by Owner of the Facility.
Section 9.02      SNH TRS’s Right To Inspect . SNH TRS or its employees, representatives, lenders or agents shall have access to the Facility and the files, books, accounts, and records of Manager related to the Facility at any and all reasonable times during usual business hours for the purpose of inspection or showing the Facility to prospective purchasers, investors, Residents or mortgagees.
ARTICLE X
REPAIRS AND MAINTENANCE
Section 10.01      Repairs, Maintenance and Capital Replacements . Manager shall maintain the Facility in good, orderly, clean and safe repair and condition consistent with a first class independent or assistant living facility (or such other type of senior living facility as the Facility may then be operated as), and in conformity with Legal Requirements. Manager shall make such routine and preventive maintenance, repairs and minor alterations, the cost of which can be expensed under GAAP, as it, from time to time, deems necessary for such purposes, consistent with the Approved Budget. The cost of such maintenance, repairs and alterations shall be paid from Gross Revenues. Manager shall make such Capital Replacements as are contemplated by the Approved Budget and funded by SNH TRS. The cost of such Capital Replacements shall be funded by SNH TRS.
Section 10.02      Emergency Repairs . If either party has actual knowledge of, or receives a written order or notice from a Governmental Authority, pertaining to a violation or potential violation of any Legal Requirement relating to the physical condition of the Facility or the continued safe operation of the Facility, such party shall give the other party prompt notice thereof and not later than three (3) Business Days after obtaining such knowledge or in the case of an order or notice from a Governmental Authority, receipt. Manager shall recommend appropriate remedial action to SNH TRS and subject to SNH TRS’s consent (which shall not be unreasonably withheld, conditioned or delayed), take such remedial action, provided Manager shall be authorized to take appropriate remedial action consisting of repairs or maintenance to the Facility without receiving SNH TRS’s prior consent: (a) in an emergency threatening the safety of such Facility or its Residents, invitees or employees or imminent material physical damage to the Facility, or (b) if the continuation of the given condition will subject Manager and/or SNH TRS to regulatory, civil, or criminal liability or result in the suspension or revocation of a material permit, license or certificate. Any disagreement regarding the necessity of taking such remedial action and/or the funding of the cost thereof that is not resolved by the parties within ten (10) Business Days shall be resolved by arbitration.
Section 10.03      Liens . Manager shall use commercially reasonable efforts to prevent any liens from being filed against the Facility which arise from any maintenance, repairs, alterations, improvements, renewals or replacements in or to the Facility. Manager shall not file any lien against the Facility.

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Section 10.04      Ownership . All repairs, replacements, alterations and additions shall be the property of Owner or SNH TRS, as may be provided in the lease of the Facility.
Section 10.05      Casualty or Condemnation . If, during the Term, the Facility is (a) totally destroyed by fire or other casualty or there is a Condemnation or (b) partially destroyed by fire or other casualty or there is a partial Condemnation and as a result the Facility is Unsuitable for Use, either Manager or SNH TRS may terminate this Agreement by sixty (60) days written notice to the other and SNH TRS and/or Owner shall be entitled to retain the insurance proceeds or Condemnation award, as the case may be.
If, as a result of partial destruction or partial Condemnation, the Facility is not rendered Unsuitable for Use, SNH TRS shall (or shall cause the Owner to) make the insurance proceeds or award received by SNH TRS and/or Owner available to Manager as necessary to repair or restore the destroyed or untaken portion of the Facility to the same condition as existed previously, provided Manager shall have the right to discontinue operating all or a portion of the Facility pending completion of the repairs or restoration as necessary to comply with Legal Requirements or for the safe and orderly operation of the Facility.
If the cost of repair or restoration is less than the insurance proceeds or award received by SNH TRS and/or Owner, SNH TRS shall (or shall cause the Owner to) make available the funds necessary to permit the Facility or the untaken portion to be repaired and restored. If the cost of the repair or restoration exceeds the amount of insurance proceeds or award, Manager shall give notice to SNH TRS and Owner setting forth in reasonable detail the nature of such deficiency, and SNH TRS and Owner shall promptly advise Manager whether SNH TRS and/or Owner will fund the deficiency. If neither SNH TRS nor Owner elect to fund the deficiency, Manager may terminate this Agreement by notice to SNH TRS.
Any obligation of SNH TRS and/or Owner to make funds available to Manager to repair or restore the Facility is subject to the requirements of any Mortgage.
Notwithstanding any provisions of this Section 10.05 to the contrary, if partial destruction or a partial Condemnation occurs during the last twelve (12) months of the Term (including any renewal) and if full repair and restoration would not reasonably be expected to be completed prior to the date that is nine (9) months prior to the end of the Term (including any renewal), the provisions of this Section 10.05 shall apply as if the Facility had been rendered Unsuitable for Use.
ARTICLE XI
INSURANCE
Section 11.01      General Insurance Requirements . Manager shall, at all times during the Term, keep (or cause to be kept) the Facility and all property located therein or thereon, insured against the risks and in such amounts as is against such risks and in such amounts as SNH TRS shall reasonably require and as may be commercially reasonable. Any disputes regarding such matters not resolved by the parties within ten (10) Business Days (which period may be extended upon mutual agreement of the parties) shall be resolved by arbitration.

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Section 11.02      Waiver of Subrogation . SNH TRS and Manager agree that (insofar as and to the extent that such agreement may be effective without invalidating or making it impossible to secure insurance coverage from responsible insurance companies doing business in the State) with respect to any property loss which is covered by insurance then being carried by SNH TRS or Manager, the party carrying such insurance and suffering said loss releases the others of and from any and all claims with respect to such loss; and they further agree that their respective insurance companies (and, if SNH TRS or Manager shall self insure in accordance with the terms hereof, SNH TRS or Manager, as the case may be) shall have no right of subrogation against the other on account thereof, even though extra premium may result therefrom. If any extra premium is payable by Manager as a result of this provision, SNH TRS shall not be liable for reimbursement to Manager for such extra premium.
Section 11.03      Risk Management . Manager shall be responsible for the provision of risk management oversight at the Facility.

ARTICLE XII
TERM AND TERMINATION
Section 12.01      Term . The Term of this Agreement shall begin on the date hereof and end December 31, 2040 (“ Term ”); provided the Term will be automatically extended for two consecutive periods of fifteen (15) years each unless notice of non-renewal is given by Manager at least twenty-four (24) months prior to the end of the then current Term, unless sooner terminated as provided in this Agreement. [Notwithstanding the foregoing, this Agreement shall terminate contemporaneously with the termination of the Granite Gate Facility Agreement.]

ARTICLE XIII
TRANSITION ON TERMINATION

Section 13.01      Termination . Upon any termination of this Agreement, except as otherwise provided in Section 14.04, Manager shall be compensated for its services only through the date of termination and all amounts remaining in any accounts maintained by Manager pursuant to Section 5.04, after payment of such amounts as may be due to Manager hereunder, shall be distributed to SNH TRS. In the event of any termination, both parties shall fully cooperate with one another to ensure a smooth transition of management. Upon termination, Manager will deliver to SNH TRS the following:
(a)      a final accounting, reflecting the balance of income and expenses of the Facility as of the date of termination, to be delivered as soon as reasonably possible but not later than sixty (60) days after such termination,
(b)      after payment of any amounts as may be due to Manager hereunder, any balance of monies of SNH TRS or Resident deposits, or both, held by Manager with respect to the Facility, to be delivered as soon as reasonably possible, but not later than sixty (60) days after such termination,

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(c)      all records, contracts, leases, resident agreements, tenant correspondence, files, receipts for deposits, unpaid bills and other papers, documents or computer disks or information which pertain in any way to the Facility to be delivered as soon as reasonably possible, but not later than sixty (60) days after such termination, and
(d)      Manager shall cooperate reasonably in all respects to achieve a transfer of any license and/or certificate (or to obtain a new license and/or certificate, if necessary) required in connection with the operation of the Facility, but shall not be required to incur any monetary expenditures in connection therewith (unless SNH TRS agrees to reimburse Manager therefor).
ARTICLE XIV
DEFAULTS
Section 14.01      Default by Manager . An Event of Default with respect to Manager shall occur in the event of any of the following:
(a)      the Bankruptcy of Manager,
(b)      the gross negligence or willful misconduct of Manager with respect to its duties and obligations under this Agreement,
(c)      the permit(s), license(s) or certificate(s) required for use, operation or management of the Facility are at any time suspended, terminated or revoked and not reinstated within the applicable appeal period, if any, for any reason due solely to the acts or omissions of Manager,
(d)      Manager’s failure to keep, observe or perform any material covenant, agreement, term or provision of this Agreement to be kept, observed or performed by Manager, which failure shall continue (i) for a period of five (5) Business Days after Manager receives notice from SNH TRS in case of monetary defaults or (ii) for a period of twenty (20) Business Days after Manager receives notice from SNH TRS in the case of non-monetary defaults, in each case, specifying the default; provided, however, that if such non-monetary default cannot be cured within such twenty (20) Business Day period, then Manager shall be entitled to such additional time as shall be reasonable, provided the default is curable and Manager has promptly proceeded to commence cure of such default within said period, and thereafter diligently prosecutes the cure to completion; provided, however, that in no event shall such additional time exceed ninety (90) days,
(e)      a Change in Control of Manager to which SNH TRS does not consent, and
(f)      a default by Manager or any Affiliate of Manager under any other agreement between Manager or an Affiliate of Manager and SNH TRS or an Affiliate of SNH TRS, which continues beyond any applicable notice and cure period.
Section 14.02      Default by SNH TRS . An Event of Default with respect to SNH TRS shall occur in the event of any of the following:

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(a)      the Bankruptcy of SNH TRS,
(b)      the gross negligence or willful misconduct of SNH TRS with respect to its obligations under this Agreement,
(c)      the permit(s), license(s) or certificate(s) required for use, operation or management of the Facility are at any time suspended, terminated or revoked and not reinstated within the applicable appeal period, if any, for any reason due solely to the acts or omissions of SNH TRS or one of its Affiliates, and
(d)      SNH TRS shall fail to (i) timely fund Working Capital or to fund Capital Replacements pursuant to an Approved Budget and such failure shall continue for a period of ten (10) Business Days after notice thereof by Manager or (ii) keep, observe or perform any other material covenant, agreement, term or provision of this Agreement to be kept, observed or performed by SNH TRS and such failure shall continue (x) for a period of five (5) Business Days after SNH TRS receives notice from Manager in case of monetary defaults or (y) for a period of twenty (20) Business Days after SNH TRS receives notice from Manager in the case of non-monetary defaults, in each case specifying the default; provided, however, if such default cannot be cured within such twenty (20) Business Day period, then SNH TRS shall be entitled to such additional time as shall be reasonable, provided the default is curable, SNH TRS has promptly proceeded to commence cure of such non-monetary default within said period, and thereafter diligently prosecutes the cure to completion; provided, however, that in no event shall such additional time to cure non-monetary defaults exceed ninety (90) days.
Section 14.03      Remedies of SNH TRS . Upon the occurrence of an Event of Default by Manager, SNH TRS may terminate this Agreement immediately upon notice and shall be entitled to exercise any other rights at law or in equity.
Section 14.04      Remedies of Manager . Upon the occurrence of an Event of Default by SNH TRS, Manager may terminate this Agreement on thirty (30) days notice and SNH TRS shall pay Manager the Termination Fee within thirty (30) days of the effective date of termination, as liquidated damages and in lieu of any other remedy of Manager at law or in equity, as well as any accrued but unpaid fees owed to Manager pursuant to Section 5.01.
Section 14.05      No Waiver of Default . The failure by SNH TRS or Manager to insist upon the strict performance of any one of the terms or conditions of this Agreement or to exercise any right, remedy or election herein contained or permitted by law shall not constitute or be construed as a waiver or relinquishment for the future of such term, condition, right, remedy or election, but the same shall continue and remain in full force and effect. All rights and remedies that SNH TRS or Manager may have at law, in equity or otherwise for any breach of any term or condition of this Agreement shall be distinct, separate and cumulative rights and remedies and no one of them, whether or not exercised by SNH TRS or Manager, shall be deemed to be in exclusion of any right or remedy of SNH TRS or Manager.


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ARTICLE XV
GOVERNING LAW, ARBITRATION, LIABILITY OF MANAGER AND INDEMNITY
Section 15.01      Governing Law, Etc . This Agreement shall be interpreted, construed, applied and enforced in accordance with the laws of the Commonwealth of Massachusetts applicable to contracts between residents of Massachusetts which are to be performed entirely within Massachusetts, regardless of (i) where this Agreement is executed or delivered; or (ii) where any payment or other performance required by this Agreement is made or required to be made; or (iii) where any breach of any provision of this Agreement occurs, or any cause of action otherwise accrues; or (iv) where any action or other proceeding is instituted or pending; or (v) the nationality, citizenship, domicile, principal place of business, or jurisdiction of organization or domestication of any party; or (vi) whether the laws of the forum jurisdiction otherwise would apply the laws of a jurisdiction other than Massachusetts; or (vii) any combination of the foregoing.
Section 15.02      Arbitration .
(a)      Any disputes, claims or controversies between the parties (i) arising out of or relating to this Agreement, or (ii) brought by or on behalf of any shareholder of any party or a direct or indirect parent of a party (which, for purposes of this Section 15.02, shall mean any shareholder of record or any beneficial owner of shares of any party, or any former shareholder of record or beneficial owner of shares of any party), either on his, her or its own behalf, on behalf of any party or on behalf of any series or class of shares of any party or shareholders of any party against any party or any member, trustee, director, officer, manager (including The RMR Group LLC or its successor), agent or employee of any party, including disputes, claims or controversies relating to the meaning, interpretation, effect, validity, performance or enforcement of this Agreement, including this arbitration provision, or the declarations of trust, limited liability company agreements, charters, bylaws or other governing documents of any party hereto (all of which are referred to as “ Disputes ”), or relating in any way to such a Dispute or Disputes shall, on the demand of any party to such Dispute be resolved through binding and final arbitration in accordance with the Commercial Arbitration Rules (the “ Rules ”) of the American Arbitration Association (“ AAA ”) then in effect, except as those Rules may be modified in this Section 15.02. For the avoidance of doubt, and not as a limitation, Disputes are intended to include derivative actions against trustees, directors, officers or managers of any party and class actions by a shareholder against those individuals or entities and any party. For the avoidance of doubt, a Dispute shall include a Dispute made derivatively on behalf of one party against another party. For purposes of this Section 15.02, the term “party” shall include any direct or indirect parent of a party.
(b)      There shall be three (3) arbitrators. If there are only two (2) parties to the Dispute, each party shall select one arbitrator within fifteen (15) days after receipt of a demand for arbitration. Such arbitrators may be affiliated or interested persons of such parties. If there are more than two (2) parties to the Dispute, all claimants, on the one hand, and all respondents, on the other hand, shall each select, by the vote of a majority of the claimants or the respondents, as the case may be, one arbitrator within fifteen (15) days after receipt of a demand for arbitration. Such arbitrators may be affiliated or interested persons of the claimants or the

23







respondents, as the case may be. If either a claimant (or all claimants) or a respondent (or all respondents) fail to timely select an arbitrator, then the party (or parties) who has selected an arbitrator may request the AAA to provide a list of three (3) proposed arbitrators in accordance with the Rules (each of whom shall be neutral, impartial and unaffiliated with any party) and the party (or parties) that failed to timely appoint an arbitrator shall have ten (10) days from the date the AAA provides such list to select one of the three (3) arbitrators proposed by AAA. If such party (or parties) fail to select such arbitrator by such time, the party (or parties) who have appointed the first arbitrator shall then have ten (10) days to select one of the three (3) arbitrators proposed by AAA to be the second arbitrator; and, if he/they should fail to select such arbitrator by such time, the AAA shall select, within fifteen (15) days thereafter, one of the three (3) arbitrators it had proposed as the second arbitrator. The two (2) arbitrators so appointed shall jointly appoint the third and presiding arbitrator (who shall be neutral, impartial and unaffiliated with any party) within fifteen (15) days of the appointment of the second arbitrator. If the third arbitrator has not been appointed within the time limit specified herein, then the AAA shall provide a list of proposed arbitrators in accordance with the Rules, and the arbitrator shall be appointed by the AAA in accordance with a listing, striking and ranking procedure, with each party having a limited number of strikes, excluding strikes for cause.
(c)      The place of arbitration shall be Boston, Massachusetts unless otherwise agreed by the parties.
(d)      There shall be only limited documentary discovery of documents directly related to the issues in dispute, as may be ordered by the arbitrators. For the avoidance of doubt, it is intended that there shall be no depositions and no other discovery other than limited documentary discovery as described in the preceding sentence.
(e)      In rendering an award or decision (the “ Award ”), the arbitrators shall be required to follow the laws of the State of Maryland. Any arbitration proceedings or Award rendered hereunder and the validity, effect and interpretation of this arbitration provision shall be governed by the Federal Arbitration Act, 9 U.S.C. §1 et seq. The Award shall be in writing and may, but shall not be required to, briefly state the findings of fact and conclusions of law on which it is based. Any monetary Award shall be made and payable in U.S. dollars free of any tax, deduction or offset. Subject to Section 15.02(h), each party against which an Award assesses a monetary obligation shall pay that obligation on or before the thirtieth (30th) day following the date of such Award or such other date as such Award may provide.
(f)      Except to the extent expressly provided by this Agreement or as otherwise agreed by the parties, to the maximum extent permitted by Maryland law, each party involved in a Dispute shall bear its own costs and expenses (including attorneys’ fees), and the arbitrators shall not render an Award that would include shifting of any such costs or expenses (including attorneys’ fees) or, in a derivative case or class action, award any portion of a party’s Award to the claimant or the claimant’s attorneys. Each party (or, if there are more than two (2) parties to the Dispute, all claimants, on the one hand, and all respondents, on the other hand, respectively) shall bear the costs and expenses of its (or their) selected arbitrator and the parties (or, if there are

24







more than two (2) parties to the Dispute, all claimants, on the one hand, and all respondents, on the other hand) shall equally bear the costs and expenses of the third (3 rd ) appointed arbitrator.
(g)      Notwithstanding any language to the contrary in this Agreement, any Award, including but not limited to any interim Award, may be appealed pursuant to the AAA’s Optional Appellate Arbitration Rules (“ Appellate Rules ”). An Award shall not be considered final until after the time for filing the notice of appeal pursuant to the Appellate Rules has expired. Appeals must be initiated within thirty (30) days of receipt of an Award by filing a notice of appeal with any AAA office. Following the appeal process, the decision rendered by the appeal tribunal may be entered in any court having jurisdiction thereof. For the avoidance of doubt, and despite any contrary provision of the Appellate Rules, the above paragraph relating to costs and expenses shall apply to any appeal pursuant to this Section 15.02(g) and the appeal tribunal shall not render an Award that would include shifting of any costs or expenses (including attorneys’ fees) of any party.
(h)      Following the expiration of the time for filing the notice of appeal, or the conclusion of the appeal process set forth in Section 15.02(g), an Award shall be final and binding upon the parties thereto and shall be the sole and exclusive remedy between those parties relating to the Dispute, including any claims, counterclaims, issues or accounting presented to the arbitrators. Judgment upon an Award may be entered in any court having jurisdiction. To the fullest extent permitted by law, no application or appeal to any court of competent jurisdiction may be made in connection with any question of law arising in the course of arbitration or with respect to any Award made, except for actions relating to enforcement of this Section 15.02 or any arbitral award issued hereunder, and except for actions seeking interim or other provisional relief in aid of arbitration proceedings in any court of competent jurisdiction.
(i)      This Section 15.02 is intended to benefit and be enforceable by the parties and their respective shareholders, members, direct and indirect parents, trustees, directors, officers, managers (including The RMR Group Inc. and The RMR Group LLC), agents or employees of any party and their respective successors and assigns and shall be binding on the shareholders of any party and the parties, as applicable, and shall be in addition to, and not in substitution for, any other rights to indemnification or contribution that such individuals or entities may have by contract or otherwise.
Section 15.03      Consent to Jurisdiction and Forum . This Section 15.03 is subject to, and shall not in any way limit the application of, Section 15.02; in case of any conflict between this Section 15.03 and Section 15.02, Section 15.02 shall govern. Notwithstanding anything to the contrary in Section 15.02, the exclusive jurisdiction and venue in any action brought by any party hereto pursuant to this Agreement shall lie in any federal or state court located in Boston, Massachusetts. By execution and delivery of this Agreement, each party hereto irrevocably submits to the jurisdiction of such courts for itself and in respect of its property with respect to such action. The parties irrevocably agree that venue would be proper in such court, and hereby waive any objection that such court is an improper or inconvenient forum for the resolution of such action. The parties further agree and consent to the service of any process required by any such court by delivery of a copy thereof in accordance with Section 17.01 and that any such delivery shall

25







constitute valid and lawful service of process against it, without necessity for service by any other means provided by statute or rule of court.
Section 15.04      Standard of Care . Manager shall discharge its duties in good faith, and agrees to exercise, with respect to all services provided by Manager under this Agreement, a standard of care, skill, prudence and diligence under the circumstances then existing as is consistent with the prevailing practices of institutional property managers that manage properties comparable to the Facility in the same market and in no event with less care, skill, prudence or diligence as Manager would customarily utilize in the conduct of its business, and as is necessary to comply with all Legal Requirements.
Section 15.05      Indemnity . In any action, proceeding or claim brought or asserted by a third party, Manager will defend, indemnify and hold SNH TRS (and any of its Affiliates, their respective directors, trustees, officers, shareholders, employees and agents) harmless from and against any claims, losses, expenses, costs, suits, actions, proceedings, demands or liabilities that are asserted against, or sustained or incurred by them because of Manager’s breach of any material term of this Agreement, or arising from Manager’s failure to act or not act in accordance with SNH TRS’s reasonable instructions or gross negligence, fraud, or willful misconduct, except to the extent caused by SNH TRS’s breach of any material term of this Agreement, gross negligence, fraud or willful misconduct. SNH TRS will defend, indemnify, and hold Manager (and any of its Affiliates, their respective directors, trustees, officers, shareholders, employees and agents) harmless, from and against any and all claims, expenses, costs, suits, actions, proceedings, demands, or liabilities that are asserted against, or sustained or incurred by them in connection with the performance of Manager’s duties under this Agreement or otherwise while acting within the scope of the agency established by the parties to this Agreement and in accordance with Section 15.04, or in the case of an action, proceeding or claim brought or asserted by a third party against any of them as a result of SNH TRS’s breach of any material term of this Agreement, violation of Legal Requirements, instructions to Manager to act or not act with respect to the relevant matter or gross negligence, fraud or willful misconduct, except to the extent caused by Manager’s breach of any material term of this Agreement, failure to act or not act in accordance with SNH TRS’s reasonable instructions, gross negligence, fraud or willful misconduct. The scope of the foregoing indemnities includes any and all costs and expenses properly incurred in connection with any proceedings to defend any indemnified claim, or to enforce the indemnity, or both. Recovery upon an indemnity contained in this Agreement shall be reduced dollar-for-dollar by any applicable insurance collected by the indemnified party with respect to the claims covered by such indemnity.
Section 15.06      Limitation of Liability . To the maximum extent permitted by applicable law, no shareholder, member, officer, director, trustee, employee or agent of any party to this Agreement (and of any Affiliate of such party that is not a party to this Agreement) shall have any personal liability with respect to the liabilities or obligations of such party under this Agreement or any document executed by such party pursuant to this Agreement.
 


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ARTICLE XVI
PROPRIETARY MARKS; INTELLECTUAL PROPERTY
Section 16.01      Proprietary Marks . During the Term of this Agreement, the Facility shall be known as a “Five Star Senior Living” community, with such additional identification as may be necessary and agreed to by SNH TRS and Manager to provide local identification or to comply with local licensing or consumer protection laws.
Section 16.02      Ownership of Proprietary Marks . The Proprietary Marks shall in all events remain the exclusive property of Manager, and except as expressly set forth in this Agreement, nothing contained herein shall confer on SNH TRS the right to use the Proprietary Marks. Except as provided below in this section, upon termination, any use of or right to use the Proprietary Marks by SNH TRS shall cease forthwith, and SNH TRS shall promptly remove, at Manager’s expense, from the Facility any signs or similar items that contain the Proprietary Marks. Upon termination, SNH TRS shall have the right to use any inventory or Household Replacement items marked with the Proprietary Marks exclusively in connection with the Facility until they are consumed.
Section 16.03      Intellectual Property . All Intellectual Property shall at all times be proprietary to Manager or its Affiliates, and shall be the exclusive property of Manager or its Affiliates. During the Term, Manager shall be entitled to take all reasonable steps to ensure that the Intellectual Property remains confidential. Upon termination, all Intellectual Property shall be removed from the Facility by Manager, without compensation to SNH TRS.
ARTICLE XVII
MISCELLANEOUS PROVISIONS
Section 17.01      Notices . All notices, demands, consents, approvals, and requests given by either party to the other hereunder shall be in writing and shall be deemed to have been duly given when delivered in person, upon confirmation of receipt when transmitted by facsimile transmission, or on the next business day if transmitted by nationally recognized overnight courier, to the parties at the following addresses:
[●]
c/o Senior Housing Properties Trust
Two Newton Place
255 Washington Street, Suite 300
Newton, Massachusetts 02458
Attn: David J. Hegarty
Telephone: (617) 796-8104
Facsimile: (617) 796-8349
FVE Managers, Inc.
400 Centre Street
Newton, Massachusetts 02458
Attn: Bruce J. Mackey Jr.
Telephone: (617) 796-8214

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Facsimile: (617) 796-8243
or to such other address and to the attention of such other person as either party may from time to time designate in writing. Notices properly given as described above shall be effective upon receipt.
Section 17.02      Severability . If any term or provision of this Agreement or the application thereof in any circumstance is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired, unless the provisions held invalid, illegal or unenforceable shall substantially impair the benefits of the remaining provisions hereof.
Section 17.03      Gender and Number . Whenever the context of this Agreement requires, the gender of all words herein shall include the masculine, feminine, and neuter, and the number of all words herein shall include the singular and plural.
Section 17.04      Headings and Interpretation . The descriptive headings in this Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement. References to “Section” in this Agreement shall be a reference to a Section of this Agreement unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this Agreement they shall be deemed to be followed by “without limitation.” The words “hereof,” “herein,” “hereby,” and “hereunder,” when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision unless otherwise indicated. The word “or” shall not be exclusive. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting.
Section 17.05      Estoppel Certificates . Each party to this Agreement shall at any time and from time to time, upon not less than thirty (30) day’s prior notice from the other party, execute, acknowledge and deliver to such other party, or to any third party specified by such other party, a statement in writing: (i) certifying that this Agreement is unmodified and in full force and effect (or if there have been modifications, that the same, as modified, is in full force and effect and stating the modifications); (ii) stating whether or not to the best knowledge of the certifying party: (x) there is a continuing default by the non-certifying party in the performance or observation of any covenant, agreement or condition contained in this Agreement; or (y) there shall have occurred any event which, with the giving of Notice or the passage of time or both, would become such a default, and, if so, specifying such default or occurrence of which the certifying party may have knowledge; and (iii) stating such other information as the non-certifying party may reasonably request. Such statement shall be binding upon the certifying party and may be relied upon by the non-certifying party and/or such third party specified by the non-certifying party as aforesaid. The obligations set forth in this Section 17.05 shall survive Termination (that is, each party shall, on request, within the time period described above, execute and deliver to the non-certifying party and to any such third party a statement certifying that this Agreement has been terminated).
Section 17.06      Confidentiality of Business Information . Manager and SNH TRS agree to keep confidential and not to use or to disclose to others, any of their respective secrets or confidential or proprietary information, customer lists, or trade secrets, or any matter or items relating to this Agreement, the management of the Facility or their association with each other except (a) to their

28







respective Affiliates, which may in turn disclose to any holder of a Mortgage, any prospective lender, purchaser or prospective purchaser of the Facility, (b) to any rating agencies, lenders, stock analysts, accountants, lawyers and other like professionals, (c) as expressly consented to in writing by the other party, (d) as required by law or the rules of any national securities exchange or automated quotation system to which SNH TRS or Manager, or any Affiliate of either, is or becomes subject, or (e) as required by law or the applicable regulators with respect to any initial, renewal or other required application for licensure, Medicare or Medicaid participation or other approval or certification of the Facility.
Section 17.07      Confidentiality of Patient Information . The parties shall only use or disclose patient information, including Protected Health Information (as such term is defined by the Standards for Privacy of Individually Identifiable Health Information, 45 C.F.R. Part 160 and Subparts A and E of Part 164, as promulgated from time to time by the Department of Health and Human Services (the “ Privacy Standards ”)), in compliance with the Privacy Standards and other applicable law. The parties shall further reasonably safeguard the confidentiality, integrity and availability of patient information, including Protected Health Information, as required by applicable law, including the Privacy Standards and the Security Standards (45 C.F.R. Part 160 and Subparts A and E of Part 164). In the event that patient information (including Protected Health Information) is disclosed by a party or its agents to the other party, its employees, contractors, subcontractors or agents, such other party agrees to take reasonable steps to maintain, and to require its employees, contractors, subcontractors and agents receiving such information to maintain, the privacy and confidentiality of such information consistent with applicable law. In connection with Manager’s services hereunder, the parties shall enter into a Business Associate Agreement in a form acceptable to both parties.
Section 17.08      Assignment . SNH TRS may assign this Agreement to any Affiliate (but only as such term is defined in Section 1.04(i) or (iii)) of SNH TRS without Manager’s consent. Manager shall not assign or transfer its interest in this Agreement without the prior written consent of SNH TRS which may be withheld in SNH TRS’s sole and absolute discretion. If SNH TRS consents to an assignment of this Agreement by Manager, no further assignment shall be made without the express consent in writing of SNH TRS.
Section 17.09      Amendment . This Agreement may not be modified, altered or amended in any manner except by an amendment in writing, duly executed by the parties hereto.
Section 17.10      Third Party Beneficiaries . The terms and conditions of this Agreement shall inure to the benefit of, and be binding upon, the respective successors, heirs, legal representatives or permitted assigns of each of the parties hereto and except for Owner, which is an intended third party beneficiary, and as otherwise provided in Section 15.05, no Person other than the parties hereto and their successors and permitted assigns is intended to be a beneficiary of this Agreement.
Section 17.11      Survival . The following provisions shall survive termination or expiration of this Agreement: Sections 11.02, 13.01, 14.03, 14.04 and 14.05, Article XV and Article XVII.
Section 17.12      Relationship Between the Parties . The relationship between SNH TRS and Manager pursuant to this Agreement shall not be one of general agency, but shall be that of an

29







independent contractor relationship, provided with respect to those specific and limited circumstances in which (a) Manager is holding funds for the account of SNH TRS or (b) Manager is required or authorized to act as authorized representative for SNH TRS with respect to agreements with Residents, filings with and applications to governmental bodies or pursuant to licenses or Legal Requirements, the relationship between SNH TRS and Manager shall be that of trustee and authorized representative (with limited agency), respectively. Neither this Agreement nor any agreements, instruments, documents or transactions contemplated hereby shall in any respect be interpreted, deemed or construed as making SNH TRS a partner or joint venturer with Manager or as creating any similar relationship or entity, and each party agrees that it will not make any contrary assertion, contention, claim or counterclaim in any action, suit or other legal proceeding involving the other.
Section 17.13      [Acknowledgement Regarding Operations . [SNH TRS and Manager acknowledge that as of the date hereof the Facility does not have any buildings and there are no Residents living at the Facility. As a result, certain provisions of this Agreement will not be currently applicable to the Facility.] SNH TRS and Manager [also] acknowledge that Owner and the owner of the Granite Gate [Facility / Lands] desire that the Granite Gate [Facility / Lands] and the Facility be operated as an integrated unit. At such time as no indebtedness encumbers the [Granite Gate] Facility, SNH TRS and Manager will cooperate with Owner and the owner of the Granite Gate [Facility / Lands] to combine the ownership and management of the Facility and the Granite Gate [Facility / Lands.]

[Signature Page Follows]


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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed under seal by their duly authorized officers, all as of the day and year first above written.
Manager:
FVE Managers, Inc.

By:                     
        Richard A. Doyle
        Chief Financial Officer and
    Treasurer

SNH TRS:
[TRS]

By:                     
        Richard W. Siedel, Jr.
        Chief Financial Officer and
    Treasurer







Exhibit A
Facility










Schedule 4.05








EXHIBIT C-1
FORM OF POOLING AGREEMENT AMENDMENT








FIRST AMENDMENT TO POOLING AGREEMENTS
(NOS. 1 THROUGH 11)
THIS FIRST AMENDMENT TO POOLING AGREEMENTS (this “ Amendment ”) is made as of November 8, 2017 by and among FVE Managers, Inc. (“ Manager ”) and the other parties listed on the signature pages hereto (each a “ TRS ” and collectively, “ TRSes ”).
RECITALS:
Manager and TRSes are parties to those certain Pooling Agreements identified with respect to such TRSes on the signature pages hereto (collectively, the “ Pooling Agreements ”). Capitalized terms used in this Amendment without definition have the meaning given therefor in the Pooling Agreements.
Manager and TRSes are entering into this Amendment pursuant to that certain Transaction Agreement dated November 8, 2017 by and between Senior Housing Properties Trust and Five Star Senior Living Inc.
NOW, THEREFORE, the parties agree as follows:
1.     Section 5.01 . Section 5.01 of each of the Pooling Agreements is amended and restated as follows:
“5.01     Shortfall . If in any period consisting of three (3) consecutive calendar years (commencing with calendar year 2017) the Aggregate TRS Priority Return for each of such three (3) years has not been paid in full (the aggregate amount of such shortfall, the “ Priority Return Shortfall ”), by notice given within sixty (60) days after receipt of the Aggregate Annual Statement for such third (3 rd ) year, TRSes may terminate all, but not less than all, of the Management Agreements identified on Schedule C. Prior to exercising the right to terminate, TRSes shall give Manager notice and, if within ten (10) days thereafter, Manager funds the Priority Return Shortfall together with interest accrued thereon at the Interest Rate (a “ Manager Shortfall Advance ”), TRSes shall not exercise the right to terminate, provided Manager may not exercise its right to fund the Priority Return Shortfall more frequently than once every four (4) years. Manager may recover any amounts paid by it as a Manager Shortfall Advance as provided in Section 3.01, provided that amounts not recovered during the four (4) calendar years following the year in which payment of a Manager Shortfall Advance was made shall be deemed waived and shall not be payable in any subsequent year.”
2.     Remainder of the Pooling Agreements Not Affected . The terms and provisions of each of the Pooling Agreements, as amended by this Amendment, remain in full force and effect without change.
[Signatures begin on the following page.]








IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement with the intention of creating an instrument under seal.
FVE MANAGERS, INC.
By:
                        
Bruce J. Mackey Jr.
President


With respect to Pooling Agreement No. 1 dated as of June 29, 2016 with an effective date of July 1, 2016:
SNH SE ASHLEY RIVER TENANT LLC
SNH SE KINGS MTN TENANT LLC
SNH SE TENANT TRS, INC.
By:                              
    Richard W. Siedel, Jr.
    President
With respect to Pooling Agreement No. 2 dated as of June 29, 2016 with an effective date of July 1, 2016:
SNH SE BURLINGTON TENANT LLC
SNH SE HABERSHAM SAVANNAH TENANT LLC
SNH SE HOLLY HILL TENANT LLC
SNH SE MOORESVILLE TENANT LLC
SNH SE N. MYRTLE BEACH TENANT LLC
SNH SE TENANT TRS, INC.
By:                              
    Richard W. Siedel, Jr.
    President









With respect to Pooling Agreement No. 3 dated as of June 29, 2016 (as amended to date) with an effective date of July 1, 2016:
SNH BRFL TENANT LLC
SNH CALI TENANT LLC
SNH CCMD TENANT LLC
SNH PLFL TENANT LLC
SNH SE BARRINGTON BOYNTON TENANT LLC
SNH SE TENANT TRS, INC.
By:                              
    Richard W. Siedel, Jr.
    President
With respect to Pooling Agreement No. 4 dated as of June 29, 2016 with an effective date of July 1, 2016:
SNH SE DANIEL ISLAND TENANT LLC
SNH SE SG TENANT LLC
SNH SE TENANT TRS, INC.
SNH TEANECK TENANT LLC


By:                              
    Richard W. Siedel, Jr.
    President
With respect to Pooling Agreement No. 5, Pooling Agreement No. 6, and Pooling Agreement No. 7 each dated as of June 29, 2016 with an effective date of July 1, 2016:
SNH SE TENANT TRS, INC.


By:                              
    Richard W. Siedel, Jr.
    President








With respect to Pooling Agreement No. 8 dated as of June 29, 2016 with an effective date of July 1, 2016:
SNH AL AIMO TENANT, INC.

By:                              
    Richard W. Siedel, Jr.
    President
With respect to Pooling Agreement No. 9 dated as of June 29, 2016 with an effective date of July 1, 2016:
SNH AL AIMO TENANT, INC.
SNH AL AIMO TENANT II, INC.
SNH AL TRS, INC.


By:                              
    Richard W. Siedel, Jr.
    President
With respect to Pooling Agreement No. 10 dated as of June 29, 2016 with an effective date of July 1, 2016:
SNH AL CRIMSON TENANT INC.
SNH AL TRS, INC.
SNH AL WILMINGTON TENANT INC.
SNH SE TENANT TRS, INC.
SNH AL CUMMING TENANT LLC


By:                              
    Richard W. Siedel, Jr.
    President








With respect to Pooling Agreement No. 11 with an effective date of December 15, 2016:

SNH AL GEORGIA TENANT LL C

By:                              
    Richard W. Siedel, Jr.
    President








EXHIBIT C-2
FORM OF POOLING AGREEMENT







POOLING AGREEMENT No. [●]
THIS POOLING AGREEMENT No. [●] (this “ Agreement ”) is made as of [●] [●], 201[ l ] with an effective date of [●] [●], 201[ l ] (the “ Effective Date ”), by and among FVE Managers, Inc. (“ Manager ”) and the parties listed on Schedule A (each a “ TRS ” and collectively, “ TRSes ”).
RECITALS:
Each TRS has entered into a Management Agreement with Manager (each a “ Management Agreement ” and collectively, the “ Management Agreements ”) with respect to each senior living facility or property set forth for such TRS on Schedule B (each a “ Facility ” and collectively, the “ Facilities ”), which Management Agreements are listed on Schedule C.
The parties desire that the working capital of each of the Facilities and all revenues from operation of each of the Facilities be pooled for purposes of paying the aggregate operating expenses of the Facilities, and fees and other amounts due to Manager and TRSes and to modify the amount of such fees and other amounts due to Manager and TRSes as set forth in this Agreement.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
DEFINED TERMS
1.01.      Definitions . Capitalized terms used, but not otherwise defined in this Agreement shall have the meanings given to such terms in the Management Agreements. The following capitalized terms as used in this Agreement shall have the meanings set forth below:
Additional Facility ” is defined in Section 7.01.
Additional Management Agreement ” is defined in Section 7.01.
Additional TRS ” is defined in Section 7.01.
Aggregate Annual Statement ” means the Aggregate Monthly Statement for the month of December in each calendar year.
Aggregate Base Fee ” means for any period, an amount equal to five percent (5%) of the Aggregate Gross Revenues for such period.  
Aggregate Facility Expenses ” means for any period, the sum of Facility Expenses of the Facilities for such period.
Aggregate Gross Revenues ” means for any period the sum of Gross Revenues of the Facilities for such period.



 

Aggregate Invested Capital ” means the sum of the Invested Capital for each of the Facilities at the time of determination.
Aggregate Monthly Statement ” is defined in Section 4.01(a).
Aggregate Net Operating Income ” means for any period an amount equal to Aggregate Gross Revenues for such period less Aggregate Facility Expenses for such period.
Aggregate TRS Priority Return ” means an annual amount equal to seven percent (7%) of Aggregate Invested Capital.
Agreement ” is defined in the Preamble.
Construction Supervision Fee ” means an amount equal to three percent (3%) of the amount funded by a TRS for Capital Replacements which such TRS is required to fund pursuant to Section 3.03 of its Management Agreement, if applicable, less the amount of any construction supervision (or similar) fees paid to any third party in connection with such Capital Replacements which are funded by such TRS.
Effective Date ” is defined in the Preamble.
[“ Granite Gate Facility ” means the Facility identified on Schedule B as the Granite Gate Facility.
Granite Gate Lands ” means the Facility identified on Schedule B as the Granite Gate Lands.]
Facility ” and “ Facilities ” is defined in the Recitals and such terms shall include any Additional Facility(ies).
Management Agreement ” and “ Management Agreements ” is defined in the Recitals.
Manager ” is defined in the Preamble.
Manager Shortfall Advance ” is defined in Section 5.01.
Non-Economic Facilities ” is defined in Section 5.02.
Other Requirement ” is defined in Section 9.01.
Priority Return Shortfall ” is defined in Section 5.01.
Transaction Agreement ” is defined in Section 9.04.
TRS ” is defined in the Preamble.

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ARTICLE II
GENERAL
2.01.      Pooling of Working Capital and Gross Revenues . The parties agree that so long as a Facility is subject to this Agreement, all Working Capital and all Gross Revenues of such Facility shall be pooled pursuant to this Agreement and disbursed to pay all Aggregate Facility Expenses, fees and other amounts due Manager and TRSes (not including amounts due pursuant to Section 15.05 of the Management Agreements) with respect to the Facilities and that the corresponding provisions of each Management Agreement shall be superseded as provided in Section 3.03. The parties further agree that if Manager gives a notice of non-renewal of the Term of any Management Agreement, it shall be deemed to be a notice of non-renewal of the Terms of all the Management Agreements.
2.02.      Construction Supervision Fee . In consideration of Manager’s management of Capital Replacements, each TRS shall pay Manager a Construction Supervision Fee for any Capital Replacements required to be made or approved by a TRS. Manager shall include the Construction Supervision Fee in the budget for the Capital Replacement for approval by the TRS. The Construction Supervision Fee will be paid monthly in arrears based on Capital Replacements made in such month.
ARTICLE III
PRIORITIES FOR DISTRIBUTION OF AGGREGATE GROSS REVENUES
3.01.      Priorities for Distribution of Aggregate Gross Revenues . Aggregate Gross Revenues shall be distributed in the following order of priority:
(1)      First, to pay Aggregate Facility Expenses (which shall not include the Aggregate Base Fee).
(2)      Second, to Manager, to pay the Aggregate Base Fee and any interest that may have accrued pursuant to Section 3.02.
(3)      Third, to TRSes, in an amount equal to the Aggregate TRS Priority Return.
(4)      Fourth, to Manager, to reimburse it for payment of any Manager Shortfall Advance, plus applicable interest calculated at the Interest Rate, subject to Section 5.01.
(5)      Fifth, of the balance, eighty percent (80%) to Manager and twenty percent (20%) to TRSes.
3.02.      Timing of Payments . Payment of the Aggregate Facility Expenses, excluding the Aggregate Base Fee, shall be made in the ordinary course of business. The Aggregate Base Fee and accrued interest, if any, shall be paid on the first Business Day of each calendar month, in advance, based upon Manager’s then estimate of the prior month’s Aggregate Gross Revenues. The Aggregate TRS Priority Return and accrued interest, if any, shall be paid on the first Business Day of each calendar month, in advance in approximately equal monthly installments,

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based upon Aggregate Invested Capital most recently reported to Manager by TRSes. The Aggregate Base Fee and Aggregate TRS Priority Return shall be subject to adjustment by increasing or decreasing the payment due in the following month based upon Aggregate Gross Revenues reflected in the Aggregate Monthly Financial Statements and increases or decreases in Aggregate Invested Capital reported to Manager by TRSes, as the case may be. If the Aggregate Base Fee is not paid in full for any calendar year, the unpaid amount shall bear interest at the Interest Rate and such unpaid amount and accrued interest shall continue to be payable pursuant to clause (2) of Section 3.01 in subsequent years until paid in full. If the Aggregate TRS Priority Return is not paid in full for any calendar year, the unpaid amount shall not continue to be payable pursuant to clause (3) of Section 3.01 in subsequent years, but shall continue to be due and bear interest at the Interest Rate for the purposes of Section 5.01. Amounts payable pursuant to clause (5) of Section 3.01 shall be paid on the last Business Day of the January following the end of each calendar year, in arrears, and shall be based upon the Aggregate Annual Statement for such calendar year. Additional adjustments to all payments will be made on an annual basis based upon any audits conducted pursuant to Section 6.03 of the Management Agreements. The Aggregate TRS Priority Return and payments to TRSes pursuant to clause (5) of Section 3.01 shall be allocated among TRSes as TRSes shall determine in their sole discretion, and Manager shall have no responsibility or liability in connection therewith.
3.03.      Relationship with Management Agreements . For as long as this Agreement is in effect with respect to a Facility, the provisions of Section 3.01 and 3.02 shall supersede Sections 5.01 and 5.02 of the Management Agreement then in effect for such Facility, and fees payable to Manager pursuant Sections 3.01 and 3.02 shall be in lieu of the fees payable under the first sentence of Section 3.01 of the Management Agreements.
ARTICLE IV
FINANCIAL STATEMENTS
4.01.      Pooling Agreement Financial Statements . Manager shall prepare and deliver the following financial statements to TRSes:
(a)      not later than ten (10) Business Days after the end of each calendar month, a consolidated balance sheet and related statement of income and expense of all of the Facilities for such calendar month and for the then current calendar year to date, certified by Manager’s Controller on a monthly basis and by Manager’s Chief Financial Officer on a quarterly basis as being true and correct to the best of his/her knowledge (“ Aggregate Monthly Statement ”).
(b)      Manager shall also prepare and deliver such other statements or reports as any TRS may, from time to time, reasonably request.
4.02.      Management Agreement Financial Statements . The financial statements delivered pursuant to this Article IV are in addition to any financial statements required to be prepared and delivered pursuant to the Management Agreements.

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ARTICLE V
SHORTFALL; NON-ECONOMIC FACILITIES
5.01.      Shortfall . If in any period consisting of three (3) consecutive calendar years (commencing with calendar year 2018) the Aggregate TRS Priority Return for each of such three (3) years has not been paid in full (the aggregate amount of such shortfall, the “ Priority Return Shortfall ”), by notice given within sixty (60) days after receipt of the Aggregate Annual Statement for such third (3 rd ) year, TRSes may terminate all, but not less than all, of the Management Agreements identified on Schedule C. Prior to exercising the right to terminate, TRSes shall give Manager notice and if within ten (10) days thereafter, Manager funds the Priority Return Shortfall together with interest accrued thereon at the Interest Rate (a “ Manager Shortfall Advance ”), TRSes shall not exercise the right to terminate, provided Manager may not exercise its right to fund the Priority Return Shortfall more frequently than once every four (4) years. Manager may recover any amounts paid by it as a Manager Shortfall Advance as provided in Section 3.01, provided that amounts not recovered during the four (4) calendar years following the year in which payment of a Manager Shortfall Advance was made shall be deemed waived and shall not be payable in any subsequent year.
5.01.      Non-Economic Facilities . If the Gross Revenues of any Facility are insufficient to pay all Facility Expenses and the Base Fee for such Facility in full during each of two (2) consecutive calendar years (commencing with calendar year 2018, or if later, the calendar year following the year in which such Facility is made subject to this Agreement), Manager shall be entitled, upon thirty (30) days notice to the relevant TRS, to designate such Facility as a “ Non-Economic Facility .” Notwithstanding the foregoing, Manager shall not be entitled, without the relevant Owner’s consent, to designate a Facility for which Invested Capital exceeds twenty percent (20%) of Aggregate Invested Capital as a Non-Economic Facility, nor shall Manager be entitled to designate a Facility as a Non-Economic Facility at any time that there are less than six (6) Facilities subject to this Agreement. For purposes of this Section 5.02 only, Aggregate Invested Capital shall be determined without giving effect to the termination of the Management Agreement for a Non-Economic Facility and without reduction for proceeds from the sale, or deemed sale, of any Non-Economic Facility. Manager may request an increase in the foregoing twenty percent (20%) threshold at any time, which the relevant Owner may accept or reject in its sole discretion.
Manager shall market a Facility designated as a Non-Economic Facility for sale and any costs incurred by Manager in connection with such marketing activities and the sale of such Facility shall be paid out of the net proceeds of such sale. The relevant TRS and Owner shall cooperate with Manager in compiling any relevant information, preparing marketing materials and otherwise in connection with the sale of a Non-Economic Facility.
[Notwithstanding the foregoing, the Granite Gate Lands may not be designated as a Non-Economic Facility separate from the Granite Gate Facility.]
5.02.      Sale Process . If a Non-Economic Facility is marketed for sale in accordance with Section 5.02 and Manager receives an offer therefor which it wishes to accept on behalf of the relevant TRS and Owner, Manager shall give the relevant TRS prompt notice thereof, which

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notice shall include a copy of the offer and any other information reasonably requested by such TRS. If the relevant TRS, on behalf of the relevant Owner, shall fail to accept or reject such offer within seven (7) Business Days after receipt of such notice and other information from Manager, such offer shall be deemed to be accepted. If the offer is rejected by the relevant TRS on behalf of the relevant Owner, and if Manager elects to continue marketing the Non-Economic Facility by providing written notice to the relevant TRS within seven (7) days of such rejection and Manager does not obtain another offer within ninety (90) days that is accepted by the relevant TRS, the Non-Economic Facility shall be deemed to have been sold to the relevant TRS on the date, at the price and on such other terms contained in the offer. If a Non-Economic Facility is sold to a third party or deemed to have been sold to the relevant Owner pursuant to such offer, effective as of the date of sale or deemed sale: (i) the Management Agreement shall terminate with respect to such Non-Economic Facility; (ii) Aggregate Invested Capital shall be reduced by an amount equal to the net proceeds of sale after reduction for the costs and expenses of the relevant TRS, the relevant Owner and/or Manager (or, in the case of a deemed sale, the net proceeds of sale determined by reference to such offer, after reduction for any amounts actually expended and any amounts which would reasonably have been expected to have been expended if the sale had been consummated by the relevant TRS, the relevant Owner and/or Manager). If the reduction in Aggregate Invested Capital is less than the Invested Capital of the Non-Economic Facility sold or deemed to have been sold, the difference shall be proportionately reallocated to the Invested Capital of the remaining Facilities.
ARTICLE VI
ACCOUNTS
All Working Capital and Gross Revenues of each of the Facilities may be pooled and deposited in one or more bank accounts in the name(s) of TRSes designated by Manager, which accounts may be commingled with accounts containing other funds owned by or managed by Manager. Manager shall be authorized to access the accounts without the approval of TRSes, subject to any limitation on the maximum amount of any check, if any, established between Manager and TRSes as part of the Annual Operating Budgets. One or more TRSes shall be a signatory on all accounts maintained with respect to the Facilities, and TRSes shall have the right to require that one or more TRS signatures be required on all checks/withdrawals after the occurrence of an Event of Default by Manager under this Agreement. Each TRS shall provide such instructions to the applicable bank(s) as are necessary to permit Manager to implement Manager’s rights and obligations under this Agreement. The failure of any TRS to provide such instructions shall relieve Manager of its obligations hereunder until such time as such failure is cured.
ARTICLE VII
ADDITION AND REMOVAL OF FACILITIES
7.01.      Addition of Facilities . At any time and from time to time, any TRS or any Affiliate of a TRS (an “ Additional TRS ”) which enters into a management agreement with Manager (an “ Additional Management Agreement ”) for the operation of an additional senior living facility (an “ Additional Facility ”), may, with the consent of Manager and TRSes become a

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party to this Agreement with respect to such Additional Facility by signing an accession agreement confirming the applicability of this Agreement to such Additional Facility. If an Additional Facility is made subject to this Agreement other than on the first day of a calendar month, the parties shall include such prorated amounts of the Gross Revenues and Facility Expenses (and such other amounts as may be necessary) applicable to such Additional Facility for such calendar month, as mutually agreed in their reasonable judgment, in the calculation of Aggregate Gross Revenues and Aggregate Facility Expenses (and such other amounts as may be necessary) for the calendar month in which the Additional Facility became subject to this Agreement and shall make any other prorations, adjustments, allocations and changes as may be required. Except as set forth in this Section 7.01, the Gross Revenues and Facility Expenses of the Additional Facility earned or incurred prior to the date that an Additional Facility was made subject to this Agreement will be excluded from Aggregate Gross Revenues and Aggregate Facility Expenses unless otherwise agreed by TRSes and Manager. Additionally, any amounts held as Working Capital or for Capital Replacements at such Additional Facility shall be held by Manager under this Agreement.
7.02.      Removal of Facilities . From and after the date of termination of any Management Agreement, the applicable Facility shall no longer be subject to this Agreement. If the termination occurs on a day other than the last day of a calendar month, the parties shall exclude such prorated amounts of the Gross Revenues and Facility Expenses (and such other amounts as may be necessary) applicable to such Facility for such calendar month, as mutually agreed in their reasonable judgment, in the calculation of Aggregate Gross Revenues and Aggregate Facility Expenses (and such other amounts as may be necessary) for the calendar month in which the termination occurred. Additionally, the relevant TRS and Manager, both acting reasonably, shall mutually agree to the portion of Working Capital and Aggregate Gross Revenues and any amounts being held by Manager for Capital Replacements allocable to the Facility being removed from this Agreement and the amount of Working Capital, Aggregate Gross Revenues and amounts being held by Manager for Capital Replacements, if any, so allocated shall be remitted to the relevant TRS and the relevant TRS and Manager shall make any other prorations, adjustments, allocations and changes as may be required.
ARTICLE VIII
TERM AND TERMINATION
8.01.      Term .
(a)      The Term of each Management Agreement shall end on December 31, 2041. .  
(b)      This Agreement shall continue and remain in effect indefinitely unless terminated pursuant to Section 8.02.
8.02.      Termination .
This Agreement may be terminated as follows:

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(a)      By the mutual consent of Manager and TRSes.
(b)      Automatically, if all Management Agreements terminate or expire for any reason.
(c)      By Manager, if any or all TRSes do not cure a material breach of this Agreement by any TRS or Owner within thirty (30) days of written notice of such breach from Manager, and if such breach is not cured, it shall be an Event of Default under the Management Agreements.
(d)      By TRSes, if Manager does not cure a material breach of this Agreement by Manager within thirty (30) days of written notice of such breach from any TRS.
8.03.      Effect of Termination . Upon the termination of this Agreement, except as otherwise provided in Section 14.04 of the Management Agreements, Manager shall be compensated for its services only through the date of termination and all amounts remaining in any accounts maintained by Manager pursuant to Article VI, after payment of such amounts as may be due to Manager hereunder, shall be distributed to TRSes. Notwithstanding the foregoing, upon the termination of any Management Agreement, pooled funds shall be allocated as described in Section 7.02.
8.04.      Survival . The following Sections of this Agreement shall survive the termination of this Agreement: 8.03 and Article IX.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.01.      Conflicts with Loan Documentation . The terms and conditions of this Agreement are subject to the requirements set forth in any Mortgage or other loan documentation applicable to any Facility and to applicable law (collectively, “ Other Requirements ”). To the extent there is any conflict between the terms and conditions of this Agreement and any Other Requirements, the provisions of the Other Requirements shall control with respect to the applicable Facility and Management Agreement and neither Manager nor any TRS or Owner shall take, or be required to take as a result of this Agreement, any action that would cause Manager or the relevant TRS or Owner to be in breach of such Other Requirement. TRS will provide Manager with notice of any loan documents applicable to a Facility, which notice will be given prior to such loan documents becoming applicable to the extent practicable.
9.02.      Adjustments and Contributions . If, as a result of an Other Requirement, any Gross Revenues of a Facility are not available to be held and applied as contemplated by Sections 3.01 and 3.02 of this Agreement: (i) the Gross Revenues and Facility Expenses of, and the Invested Capital related to, such Facility shall nonetheless be taken into account in determining the amounts required to be paid pursuant to Sections 3.01 and 3.02; (ii) any payments by or to a TRS pursuant to the Management Agreement related to such Facility shall offset any payments required to be made pursuant to Sections 3.01 and 3.02; and (iii) any direct or indirect parent of such TRS shall permit distributions of Gross Revenues of such Facility

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received by it to be held and applied as Gross Revenues under this Agreement. Any distributions so provided by a direct or indirect parent shall be accounted for between such parent and TRSes as determined by them. Notwithstanding the foregoing, in no event shall the fees paid to Manager and the TRSes pursuant to this Agreement and the Management Agreements exceed in the aggregate the amounts required to be paid pursuant to this Agreement.
9.03.      Notices . All notices, demands, consents, approvals, and requests given by any party to another party hereunder shall be in writing and shall be deemed to have been duly given when delivered in person, upon confirmation of receipt when transmitted by facsimile transmission, or on the next business day if transmitted by nationally recognized overnight courier, to the parties at the following addresses:
To TRS :

Two Newton Place
255 Washington Street, Suite 300
Newton, Massachusetts 02458-1634
Attn: David J. Hegarty
Telephone: (617) 796-8104
Facsimile: (617) 796-8349
To Manager :

FVE Managers, Inc.
400 Centre Street
Newton, Massachusetts 02458
Attn: Bruce J. Mackey
Telephone: (617) 796-8214
Facsimile: (617) 796-8243
9.04.      Applicable Law; Arbitration . This Agreement shall be interpreted, construed, applied and enforced in accordance with the laws of the Commonwealth of Massachusetts, with regard to its “ choice of law ” rules. Any “ Dispute ” (as such term is defined in the that certain Transaction Agreement dated November 8, 2017 by and between Senior Housing Properties Trust and Five Star Senior Living Inc. (the “ Transaction Agreement ”) under this Agreement shall be resolved through final and binding arbitration conducted in accordance with the procedures and with the effect of, arbitration as provided for in the Transaction Agreement.
9.05.      Severability . If any term or provision of this Agreement or the application thereof in any circumstance is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired, unless the provisions held invalid, illegal or unenforceable shall substantially impair the benefits of the remaining provisions hereof.

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9.06.      Gender and Number . Whenever the context of this Agreement requires, the gender of all words herein shall include the masculine, feminine, and neuter, and the number of all words herein shall include the singular and plural.
9.07.      Headings and Interpretation . The descriptive headings in this Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement. References to “ Section ” in this Agreement shall be a reference to a Section of this Agreement unless otherwise indicated. Whenever the words “ include ”, “ includes ” or “ including ” are used in this Agreement they shall be deemed to be followed by “ without limitation .” The words “ hereof ,” “ herein ,” “ hereby ,” and “ hereunder ,” when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision unless otherwise indicated. The word “ or ” shall not be exclusive. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting.
9.08.      Confidentiality of Information . Any information exchanged between Manager and any TRS pursuant to the terms and conditions of this Agreement shall be subject to Sections 17.06 or 17.07 of the applicable Management Agreement and the Business Associate Agreement entered into between Manager and each TRS.
9.09.      Assignment . Neither Manager nor any TRS may assign its rights and obligations under this Agreement to any Person without the prior written consent of the other parties.
9.10.      Entire Agreement; Construction; Amendment .
(a)      With respect to the subject matter hereof, other than as set forth in the Transaction Agreement, the Agreement supersedes all previous contracts and understandings between the parties and constitutes the entire agreement between the parties with respect to the subject matter hereof. Accordingly, except as otherwise expressly provided herein or in the Transaction Agreement, in the event of any conflict between the provisions of this Agreement and the Management Agreements, the provisions of this Agreement shall control, and the provisions of the Management Agreements are deemed amended and modified, in each case as required to give effect to the intent of the parties in this Agreement. All other terms and conditions of the Management Agreements shall remain in full force and effect; provided that, to the extent that compliance with this Agreement shall cause a default, breach or other violation of the Management Agreement by one party, the other party waives any right of termination, indemnity, arbitration or otherwise under the applicable Management Agreement related to such specific default, breach or other violations, to the extent caused by compliance with this Agreement. This Agreement may not be modified, altered or amended in any manner except by an amendment in writing, duly executed by the parties hereto.
(b)      In the event of any conflict between the provisions of this Agreement or the Management Agreements on the one hand, and the provisions of the Transaction Agreement on the other hand, the provisions of the Transaction Agreement shall control, and the provisions of this Agreement or the Management Agreements, as applicable, are

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deemed amended and modified, in each case as required to give effect to the intent of the parties hereunder. All other terms and conditions of this Agreement and the Management Agreements, as applicable, shall remain in full force and effect.
9.11.      Third Party Beneficiaries . The terms and conditions of this Agreement shall inure to the benefit of, and be binding upon, the respective successors, heirs, legal representatives or permitted assigns of each of the parties hereto, and, except for Owners, which are intended third party beneficiaries, no Person other than the parties hereto and their successors and permitted assigns is intended to be a beneficiary of this Agreement.
[Signatures page follows]

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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement with the intention of creating an instrument under seal.
FVE MANAGERS, INC.
By:                              
    Richard A. Doyle
    Chief Financial Officer and Treasurer
[TRSes ]



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Schedule A
TRSes






 

Schedule B

Facilities












 

Schedule C
Management Agreements







SCHEDULE 1
PROPERTIES
1
Terrace at Grove Park
101 Tulip Lane
Dothan, Alabama 36305

For legal description see Schedule 1-A
 
2
Granite Gate Community – Parcel 2
3850 North US Highway 89
Prescott, AZ 86301

For legal description see Schedule 1-B
“Granite Gate Facility”
3
Granite Gate Community – Parcels 1 and 3 (Parking)
3850 North US Highway 89
Prescott, AZ 86301

For legal description see Schedule 1-C
“Granite Gate Lands”
4
Northwoods Commons
2501 Friendship Boulevard
Kokomo, Indiana 46227

For legal description see Schedule 1-D
 
5
5 Plex
Mallard Court
Kokomo, Indiana 46227
For legal description see Schedule 1-E
 
6
Park Place of Fountain City
3030 Holbrook Drive
5405 Colonial Circle
Knoxville, Tennessee 37918
For legal description see Schedule 1-F
 
7
Park Place of West Knoxville
10914 Kingston Pike
Knoxville, Tennessee 37934
For legal description see Schedule 1-G
 
8
The Neighborhood at Tellico Village
100 Chatuga Drive West
Loudon, Tennessee 37774
For legal description see Schedule 1-H
 






SCHEDULE 1-A
Terrace at Grove Park
101 Tulip Lane
Dothan, Alabama 36305

THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF HOUSTON, STATE OF ALABAMA, AND IS DESCRIBED AS FOLLOWS:
Parcel 1 (Fee Simple)
Lot 1 according to the Final Plat of The Terrace at Grove Park, as recorded in Plat Book 13, Page 99, on March 17, 2014 in the Office of the Judge of Probate of Houston County, Alabama.
The above-referenced property being the same property described in deed recorded May 14, 2014 in Deed Book 736, Page 641 in the Office of the Judge of Probate of Houston County, Alabama.
Parcel 2
Easement rights as set forth in Declaration of Easements recorded August 16, 2001 in Deed Book 580, Page 246, in the Probate Records of Houston County, Alabama.
Parcel 3
Easement rights as set forth in Non-Exclusive Easement for Ingress/Egress recorded May 23, 2006, in Deed Book 639, Page 799, in the Probate Records of Houston County, Alabama.
Parcel 4
Easement rights as set forth in Reciprocal Easement Agreement recorded June 14, 1990 in Deed Book 558, Page 216, in the Probate Records of Houston County, Alabama, and as amended by Amendment 1 to Reciprocal Easement Agreement recorded February 26, 2008 in Misc. Book 260, Page 287, in the Probate Records of Houston County, Alabama.

Parcel ID Nos.: 0904170000005004 and 0904170000005004A






SCHEDULE 1-B
Granite Gate Community
3850 North US Highway 89
Prescott, AZ 86301

Parcel 1
:
Intentionally omitted.
Parcel 2 :
That portion of Section 12, Township 14 North, Range 2 West of the Gila and Salt River Base and Meridian, Yavapai County, Arizona, being a portion of that parcel recorded in Book 4307 of Official Records, Page 613, formerly recorded in Book 2382 of Official Records, Page 95, and depicted on the Record of Survey recorded in Book 13 of Land Surveys, Page 68-69, records of Yavapai County, Arizona, described as follows:
COMMENCING at a found PK nail with tag “LS 17564” marking the Easterly most corner of said parcel;
Thence South 28 degrees, 35 minutes, 28 seconds West, a distance of 164.52 feet along the Westerly right of way of State Highway 89, to a nail and brass tag “LS 16921” (recorded South 28 degrees, 25 minutes, 40 seconds West);
Thence North 61 degrees, 06 minutes, 35 seconds West, a distance of 100.97 feet to a found nail and brass tag “LS 17353;
Thence North 79 degrees, 15 minutes, 28 seconds West, a distance of 290.91 feet to a found 1/2 inch rebar capped “LS 17353”;
Thence Northwesterly 416.61 feet along a curve to the right having a radius of 1085.82 feet and a chord of 413.87 feet, bearing North 88 degrees, 10 minutes, 54 seconds West, to a found nail and tag “LS 17353”;
Thence North 35 degrees, 35 minutes, 37 seconds East, a distance of 150.88 feet to a nail and tag “LS 16921”;
Thence North 53 degrees, 51 minutes, 51 seconds West, a distance of 60.60 feet parallel to an existing building to a nail and tag “LS 16921”;
Thence North 32 degrees, 04 minutes, 03 seconds East, a distance of 10.11 feet to a point on the face of an existing building;
Thence North 53 degrees, 51 minutes, 51 seconds West, a distance of 25.09 feet along the face of an existing building to a point;



 

Thence South 32 degrees, 04 minutes, 03 seconds West, a distance of 10.11 feet to a nail and tag “LS 16921”;
Thence North 53 degrees, 51 minutes, 51 seconds West, a distance of 8.88 feet to a 1/2 inch rebar capped “LS 16921”;
Thence South 80 degrees, 35 minutes, 30 seconds West, a distance of 10.79 feet to a 1/2 inch rebar capped “LS 16921”;
Thence North 53 degrees, 55 minutes, 57 seconds West, parallel to an existing building, a distance of 92.61 feet to a 1/2 inch rebar capped “LS 16921”;
Thence South 36 degrees, 16 minutes, 23 seconds West, a distance of 147.72 feet to a nail and brass tag “LS 16921”;
Thence North 53 degrees, 55 minutes, 57 seconds West, a distance of 142.84 feet to a point on the West boundary of said parcel, being the meander line of Willow Creek as shown on said Record of Survey;
Thence North 26 degrees, 38 minutes, 25 seconds East, a distance of 126.33 feet to a point (recorded as North 26 degrees, 24 minutes, 30 seconds East);
Thence North 22 degrees, 59 minutes, 24 seconds East, a distance of 223.65 feet to the Southerly right of way of Entrance Road, a nail and tag “LS 16921” (recorded as North 22 degrees, 45 minutes, 30 seconds East, a distance of 223.67 feet);
Thence South 69 degrees, 32 minutes, 06 seconds East, a distance of 71.18 feet along the Southerly right of way of Entrance Road to a 1/2 inch rebar capped “LS 16921” (recorded as South 69 degrees, 46 minutes, 22 seconds East, a distance of 71.18 feet);
Thence South 57 degrees, 04 minutes, 18 seconds East, a distance of 183.19 feet along the Southerly right of way of Entrance Road to a found 1/2 inch rebar tagged “LS 17564” (recorded as South 57 degrees, 18 minutes, 34 seconds East, a distance of 183.19 feet);
Thence South 64 degrees, 34 minutes, 05 seconds East, a distance of 46.76 feet along the Southerly right of way of Entrance Road to a found 1/2 inch rebar tagged “LS 17564” (recorded as South 64 degrees, 47 minutes, 53 seconds East, a distance of 46.73 feet);
Thence South 68 degrees, 42 minutes, 11 seconds East, a distance of 104.84 feet along the Southerly right of way of Entrance Road to a found rebar capped “LS 23383” (recorded as South 68 degrees, 53 minutes, 09 seconds East, a distance of 104.77 feet);
Thence South 87 degrees, 33 minutes, 54 seconds East, a distance of 102.24 feet along the Southerly right of way of Entrance Road to a found 1/2 inch rebar capped “LS 17564” (recorded as South 87 degrees, 50 minutes, 05 seconds East, a distance of 102.39 feet);



 

Thence South 75 degrees, 41 minutes, 11 seconds East, a distance of 95.50 feet along the Southerly right of way of Entrance Road to a found nail and brass tag “LS 17564” (recorded as South 75 degrees, 50 minutes, 50 seconds East, 95.41 feet);
Thence South 65 degrees, 54 minutes, 41 seconds East, a distance of 29.17 feet along the Southerly right of way of Entrance Road to a found 1/2 inch rebar tagged “LS 17564” (recorded as South 66 degrees, 16 minutes, 32 seconds East, a distance of 29.25 feet);
Thence South 60 degrees, 46 minutes, 18 seconds East, a distance of 346.02 feet along the Southerly right of way of Entrance Road to a found 1/2 inch rebar tagged “LS 17564” (recorded as South 60 degrees, 59 minutes, 30 seconds East, a distance of 345.97 feet );
Thence South 56 degrees, 37 minutes, 33 seconds East, a distance of 95.65 feet along the Southerly right of way of Entrance Road to a found Y2 inch rebar tagged “LS 17564” (recorded as South 56 degrees, 59 minutes, 07 seconds East, a distance of 95.68 feet);
Thence South 40 degrees, 18 minutes, 35 seconds East, a distance of 34.02 feet along the Southerly right of way of Entrance Road to a found nail and brass tag “LS 17564” (recorded as South 40 degrees, 09 minutes, 59 seconds East, a distance of 34.22 feet);
Thence South 39 degrees, 59 minutes, 32 seconds East, a distance of 21.82 feet along the Southerly right of way of Entrance Road to the POINT OF BEGINNING (recorded as South 40 degrees, 09 minutes, 59 seconds East, a distance of 21.88 feet)
(Also being Parcel 1 on Land Survey recorded in Book 176 of Land Surveys, Page 82 and as shown on Land Survey recorded in Book 178 of Land Surveys, Pages 66-67)
Parcel 3 :
Intentionally omitted.
Parcel 4 :
An Easement for ingress and egress for a Service Road, as described in Northern Service Road Easement Agreement recorded July 30, 1991 in Book 2382 of official Records, Page 110.
Parcel 5 :
An Easement for ingress and egress for utilities as described in Utility Easement Agreement recorded July 30, 1991 in Book 2382 of Official Records, Page 126.
Parcel 6 :
An Easement for containment of rock rip rap fill as described in Willow Creek Rip-Rap Easement Agreement recorded July 30, 1991 in Book 2382 of Official Records, Page 162.




 

Parcel 7 :
An Easement for ingress, egress and parking as described in that Cross-Access, Parking and Maintenance Easement Agreement recorded in Book 4594 of Official Records, Page 550.






SCHEDULE 1-C
Granite Gate Lands
3850 North US Highway 89
Prescott, AZ 86301
Parcel 1 :
That portion of Section 12, Township 14 North, Range 2 West of the Gila and Salt River Base and Meridian, Yavapai County, Arizona, being a portion of that parcel recorded in Book 4307 of Official Records, Page 613, formerly recorded in Book 2382 of Official Records, Page 95, and depicted on the Record of Survey recorded in Book 13 of Land Surveys, Page 68-69, records of Yavapai County, Arizona, described as follows:
COMMENCING at a found PK nail with tag “LS 17564” marking the Easterly most corner of said parcel;
Thence South 28 degrees, 35 minutes, 28 seconds West, a distance of 164.52 feet along the Westerly right of way of State Highway 89, to a nail and brass tag “LS 16921” (recorded South 28 degrees, 25 minutes, 40 seconds West );
Thence continuing South 28 degrees, 35 minutes, 28 seconds West, a distance of 510.09 feet along the Westerly right of way of State Highway 89, to a nail and brass tag “LS 16921” (recorded South 28 degrees, 25 minutes, 40 seconds West);
Thence along a highway spiral, concave to the Northeast, having an “a” value of 1-1/4 and a chord bearing South 28 degrees, 22 minutes, 19 seconds West, a distance of 25.01 feet to a found 1/2 inch rebar tagged “LS 17564”;
Thence leaving the right of way of State Highway 89, bearing North 84 degrees, 04 minutes, 32 seconds West, a distance of 822.95 feet to a mag nail and washer stamped “LS 16921” in the asphalt of Twisted Trail, a roadway of the Granite Park Subdivision recorded in Book 61 of Maps, Pages 39-47, Yavapai County Recorder’s Office, said point being the TRUE POINT OF BEGINNING (recorded as North 84 degrees, 10 minutes, 35 seconds West);
Thence North 84 degrees, 04 minutes, 32 seconds West, a distance of 101.61 feet to a point on the meander line of Willow Creek, as shown on said Record of Survey, a nail and tag “LS 16921” (recorded as North 84 degrees, 10 minutes, 35 seconds West);
Thence North 41 degrees, 42 minutes, 47 seconds East along the meander line of Willow Creek, a distance of 41.97 feet to a ½ inch rebar capped “LS 16921” (set 0.1 feet behind the Northerly curb line of said Twisted Trail) (recorded as North 41 degrees, 41 minutes, 09 seconds East, a distance of 41.99 feet);
Thence North 08 degrees, 30 minutes, 37 seconds West along the meander line of Willow Creek, a distance of 63.06 feet to a nail and tag “LS 16921” (recorded as North 8 degrees, 32 minutes, 30 seconds West, a distance of 63.03 feet);



 

Thence North 41 degrees, 31 minutes, 37 seconds East along the meander line of Willow Creek, a distance of 83.67 feet to a found 1/2 inch rebar tagged “LS 17564” (recorded as North 41 degrees, 29 minutes, 30 seconds East, a distance of 83.71 feet);
Thence North 16 degrees, 23 minutes, 52 seconds East along the meander line of Willow Creek, a distance of 101.94 feet to a found 1/2 inch rebar tagged “LS 17564” (recorded as North 16 degrees, 06 minutes, 00 seconds East, a distance of 101.94 feet;
Thence North 28 degrees, 56 minutes, 21 seconds West along the meander line of Willow Creek, a distance of 183.37 feet to a calculated point (recorded as North 29 degrees, 10 minutes, 00 seconds West, a distance of 183.38 feet);
Thence North 01 degrees, 31 minutes, 44 seconds West along the meander line of Willow Creek, a distance of 187.28 feet to a calculated point (recorded as North 01 degrees, 45 minutes, 30 seconds West, a distance of 187.30 feet);
Thence North 56 degrees, 59 minutes, 21 seconds East along the meander line of Willow Creek, a distance of 104.48 feet to a calculated point (recorded as North 56 degrees, 45 minutes, 16 seconds East, a distance of 104.49 feet);
Thence North 26 degrees, 38 minutes, 25 seconds East along the meander line of Willow Creek, a distance of 31.42 feet to a calculated point (recorded as North 26 degrees, 24 minutes, 30 seconds East);
Thence leaving the meander line of Willow Creek, South 53 degrees, 55 minutes, 57 seconds East, a distance of 142.84 feet to a nail and tag “LS 16921”;
Thence North 36 degrees, 16 minutes, 23 seconds East, a distance of 147.72 feet to a 1/2 inch rebar capped “LS 16921”;
Thence South 53 degrees, 55 minutes, 57 seconds East, parallel to the face of an existing building, a distance of 92.61 feet to a 1/2 inch rebar capped “LS 16921”;
Thence North 80 degrees, 35 minutes, 30 seconds East, a distance of 10.79 feet to a 1/2 inch rebar capped “LS 16921”;
Thence South 53 degrees, 51 minutes, 51 seconds East, a distance of 8.88 feet to a nail and tag “LS 16921”;
Thence North 32 degrees, 04 minutes, 03 seconds East, a distance of 10.11 feet to a calculated point on an existing building;
Thence South 53 degrees, 51 minutes, 51 seconds East, along an existing building, a distance of 25.09 feet to a calculated point on the building line;
Thence South 32 degrees, 04 minutes, 03 seconds West, leaving the building line, a distance of 10.11 feet to a nail and tag “LS 16921”;



 

Thence South 53 degrees, 51 minutes, 51 seconds East, parallel to an existing building, a distance of 60.60 feet to a nail and tag “LS 16921”;
Thence South 35 degrees, 35 minutes, 37 seconds West, a distance of 150.88 feet to a found nail and washer “LS 17353”;
Thence South 35 degrees, 35 minutes, 37 seconds West, a distance of 383.08 feet to a nail and tag “LS 16921”;
Thence South 18 degrees, 34 minutes, 29 seconds West, a distance of 200.00 feet to the TRUE POINT OF BEGINNING.
(Also being Parcel 3 on Land Survey recorded in Book 176 of Land Surveys, Page 82)
Parcel 2 :
Intentionally deleted.
Parcel 3 :
That portion of Section 12, Township 14 North, Range 2 West of the Gila and Salt River Base and Meridian, Yavapai County, Arizona, being a portion of that parcel recorded in Book 4307 of Official Records, Page 613, formerly recorded in Book 2382 of Official Records, Page 95 and depicted on the Record of Survey recorded in Book 13 of Land Surveys, Pages 68-69, records of Yavapai County, Arizona, described as follows:
COMMENCING at a found PK nail with tag “LS 17564” marking the Easterly most corner of said parcel;
Thence South 28 degrees, 35 minutes, 28 seconds West, a distance of 164.52 feet along the Westerly right of way of State Highway 89 to a nail and tag “LS 16921” said point being the TRUE POINT OF BEGINNING (recorded South 28 degrees, 25 minutes, 40 seconds West);
Thence continuing South 28 degrees, 35 minutes, 28 seconds West, a distance of 510.09 feet along the Westerly right of way of State Highway 89 to a nail and tag “LS 16921” (recorded South 28 degrees, 25 minutes, 40 seconds West);
Thence along a highway spiral, concave to the Northeast, having an “a” value of 1-1/4 and a chord bearing South 28 degrees, 22 minutes, 19 seconds West, a distance of 25.01 feet to a found 1/2 inch rebar tagged “LS 17564” (recorded South 28 degrees, 12 minutes, 34 seconds West, a distance of 25.09 feet);
Thence leaving the right of way of State Highway 89 bearing North 84 degrees, 04 minutes, 32 seconds West, a distance of 822.95 feet to a mag nail and washer stamped “LS 16921” in the asphalt of Twisted Trail, a roadway of the Granite Park subdivision recorded in Book 61 of Maps, Pages 39-47, Yavapai County Recorder’s Office (recorded North 84 degrees, 10 minutes, 35 seconds West);



 

Thence North 18 degrees, 34 minutes, 29 seconds East, a distance of 200.00 feet to a nail and tag “LS 16921”;
Thence North 35 degrees, 35 minutes, 37 seconds East, a distance of 383.08 feet to a found nail and washer “LS 17353”;
Thence along a non-tangential curve to the left having a radius of 1085.82 feet, a length of 416.41 feet and a chord bearing South 88 degrees, 10 minutes, 54 seconds East, a distance of 413.87 feet to a found 1/2 inch rebar capped “LS 17353”;
Thence South 79 degrees, 15 minutes, 28 seconds East, a distance of 290.91 feet to a found nail and washer “LS 17353”;
Thence South 61 degrees, 06 minutes, 35 seconds East, a distance of 100.97 feet to the Westerly right of way of State Highway 89 and the TRUE POINT OF BEGINNING.
(Also being Parcel 2 on Land Survey recorded in Book 176 of Land Surveys, Page 82)
Parcel 4 :
An Easement for ingress and egress for a Service Road, as described in Northern Service Road Easement Agreement recorded July 30, 1991 in Book 2382 of official Records, Page 110.
Parcel 5 :
An Easement for ingress and egress for utilities as described in Utility Easement Agreement recorded July 30, 1991 in Book 2382 of Official Records, Page 126.
Parcel 6 :
An Easement for containment of rock rip rap fill as described in Willow Creek Rip-Rap Easement Agreement recorded July 30, 1991 in Book 2382 of Official Records, Page 162.
Parcel 7 :
An Easement for ingress, egress and parking as described in that Cross-Access, Parking and Maintenance Easement Agreement recorded in Book 4594 of Official Records, Page 550.






SCHEDULE 1-D
Northwoods Commons
2501 Friendship Boulevard
Kokomo, Indiana 46227

Parcel 1
All that certain plot, piece or parcel of land, lying and situate in Center Township, City of Kokomo, County of Howard, State of Indiana, being more particularly described as follows:
Lot 1 in North Woods Commons Minor, Section One (1), recorded in Plat Book 10, page 301, an addition to Center Township, City of Kokomo, Howard County, Indiana, as amended by a Certificate of Correction recorded at Instrument No. 9934007439.
Parcel 2 (Easements)
Easements for a perpetual drainage easement and right to install and maintain said drain to Turtle Creek Management, Inc., dated January 14, 1997, recorded January 14, 1997 in Miscellaneous Record 87, page 39 and Miscellaneous Record 87, page 40 and Miscellaneous Record 87, page 41; all in the Office of the Recorder of Howard County, Indiana.







SCHEDULE 1-E
5 Plex
Mallard Court
Kokomo, Indiana 46227
Parcel 3
All that certain plot, piece or parcel of land, lying and situate in Center Township, City of Kokomo, County of Howard, State of Indiana, being more particularly described as follows:
Lot Number 2 in North Woods Commons Minor Subdivision, Section Two, an Addition to Center Township, City of Kokomo, Howard County, Indiana, as per plat thereof recorded as Instrument No. 0234001154.
Also described according to the Surveyor’s Affidavit of Scrivener’s Error dated August 31, 2011 and recorded October 5, 2011 as Instrument No. 1134017992, as follows:
Part of Tract A in Friendship Village P.U.D. Section 2, Replat, an addition to Center Township, Howard County, Indiana recorded in Plat Book 9, page 272, described as follows:
Beginning at the southeast corner of Lot 66 in North Woods Estates Subdivision, Section One, an addition to Center Township, city of Kokomo, Howard County, Indiana recorded in Plat Book 9, page 173 marked by a 5/8 inch diameter rebar with a yellow cap marked “S0302”; thence North 164.23 feet along the east line of said Lot and the east line of Lots 65 and 64 in North Woods Estates Subdivision, Section Two, an addition to Center Township, City of Kokomo, Howard County, Indiana recorded in Plat Book 10, page 309 to a 5/8 inch diameter rebar; thence N 88° 05’ 12” E 185.44 feet along the south line of Tract “C” in Friendship Village P.U.D., Section Two Replat, an addition to Center Township, Howard County; Indiana recorded in Plat Book 9, page 272 to the west right-of-way of a Vehicular Access and Utility Easement created by said Friendship Village P.U.D.; thence S 29° 32’ 10” W 200.94 feet along said west line; thence southwest, west and northwest 28.18 feet along a 20 foot radius curve to the right, the long chord of which bears S 69° 53’ 51” W 25.90 feet through a clockwise central angle of 80° 43’ 23”; thence northwest and west 63.60 feet along a 225 foot radius curve to the left, the long chord of which bears N 77° 52’ 00” W 63.39 feet to the point of beginning, containing 0.54 acres, more or less.
Parcel 4
TOGETHER WITH a beneficial easement for ingress and egress as described in the Declaration of Right of Way of Ingress and Egress for vehicular and pedestrian traffic, by Turtle Creek Management, Inc., dated May 14, 1993, recorded May 17, 1993 in Deed Record 257, page 1341.






SCHEDULE 1-F
Park Place of Fountain City
3030 Holbrook Drive
5405 Colonial Circle
Knoxville, Tennessee 37918


TRACT I: (5405 Colonial Circle)
SITUATED in District Seven (7) of Knox County, Tennessee, and within the 36th Ward of the City of Knoxville, Tennessee, and being known and designated as all of Lot 2, of the Resubdivision of Parkview, as shown by map recorded as Instrument No. 200306190118015, in the Register’s Office for Knox County, Tennessee; said lot being more particularly bounded and described by map aforesaid, to which map specific reference is hereby made for a more particular description.
TOGETHER WITH easements set forth in Declaration of Easements dated as of June 6, 2003, recorded as Instrument No. 200306190118016, in the Register’s Office for Knox County, Tennessee.
Parcel ID No.: 058FB-004
TRACT II: (3030 Holbrook Drive)
SITUATED in District No. Seven (7) of Knox County, Tennessee, and within the 36th Ward of the City of Knoxville, Tennessee, and being known and designated as all of Lot 1, of the Resubdivision of Parkview, as shown by map recorded as Instrument No. 200306190118015, in the Register’s Office for Knox County, Tennessee; said lot being more particularly bounded and described by map aforesaid, to which map specific reference is hereby made for a more particular description.
TOGETHER WITH easements set forth in Declaration of Easements dated as of June 6, 2003, recorded as Instrument No. 200306190118016, in the Register’s Office for Knox County, Tennessee.
Parcel ID No.: 058FB-003
BEING a portion of the same property conveyed to FVE Parkview Properties Inc., a Maryland corporation, by Special Warranty Deed from Parkview Independent Living, LLC, a Tennessee limited liability company, dated November 2, 2015 and recorded as Instrument No. 201511050028515, in the Register’s Office for Knox County, Tennessee.






SCHEDULE 1-G
Park Place of West Knoxville
10914 Kingston Pike
Knoxville, Tennessee 37934


SITUATED in District No. Six (6) of Knox County, Tennessee, being all of Lot 1R-1, of the Resubdivision of Lots I R, 2R-1 and 3R-1, H. R. Thornton Subdivision, as shown on the plat of record as Instrument No. 200809110017900, in the Register’s Office for Knox County, Tennessee; to which plat specific reference is hereby made for a more particular description.
TOGETHER WITH a permanent non-exclusive easement for ingress and egress over and across that certain strip of land 50 feet in width and 250 feet in length further described in deeds of record in Warranty Book 1942, page 135, Warranty Book 2059, page 864, Instrument No. 200610200034698 and Instrument No. 200612120048962 (as corrected).
TOGETHER WITH rights set forth in that Declaration of Easements and Maintenance Agreement dated October 12, 2007, of record as Instrument No. 200710180032528, in the Register’s Office for Knox County, Tennessee.
TOGETHER WITH all of their rights, title and interest in and to any real estate lying adjacent to the boundaries of the Premises, including, but not limited to, that real estate now or previously encumbered by the platted right of ways for Kingston Pike and Thornton Road.
TOGETHER WITH sewer easement as shown on plat of record as Instrument No. 200809110017900, in the Register’s Office for Knox County, Tennessee.
Parcel ID No.: 143HB-042
BEING a portion of the same property conveyed to FVE Parkview Properties Inc., a Maryland corporation, by Special Warranty Deed from Parkview Independent Living, LLC, a Tennessee limited liability company, dated November 2, 2015 and recorded as Instrument No. 201511050028515, in the Register’s Office for Knox County, Tennessee.






SCHEDULE 1-H
The Neighborhood at Tellico Village
100 Chatuga Drive West
Loudon, Tennessee 37774

A Parcel of land lying in the First Civil District of Loudon County, Tennessee, lying about 677 feet westerly of the Tellico Reservation property line and adjacent to the westerly right of way of the Tellico Parkway, now State Route 444, approximately one half mile northeast of the intersection of the state Route 444 and the State Route 72, being more particularly described as follows:
BEGINNING at a point 3,866.47 north and 576.01 feet west of TVA monument 52-51A, a metal marker (Tennessee State Plane coordinates of north 465,136 feet and east 2,510,195 feet) in the 820 foot (MSL) contour on the east shore of the Fork Creek Embayment of Tellico Reservoir; thence S. 01 deg. 01 min. 23 sec. E. 328.80 feet; thence, 16.50 feet along the arc of a 50.00 foot radius curve to the right, said arc having a chord of S. 08 deg. 25 min. 42 sec. W. 16.42 feet; thence S. 89 deg. 40 min. 48 sec. W. 643.85 feet; thence N. 00 deg. 13 min. 03 sec. W. 345.00 feet; thence N. 89 deg. 40 min. 48 sec. E, 641.69 feet to the point of BEGINNING, containing 5.10 acres more or less.
Prepared from a survey by Jimmy D. Ogle being titled "Tellico Senior Living, LLC" Job No. 3627, dated April 28, 1998, revised June 4, 1998, January 17, 2000, February 1, 2000, March 8, 2000 and October 19, 2000 signed by Jimmy D. Ogle, Tennessee Registered Land Surveyor No. 1371, 100 Chota Center, Loudon, TN 37774 on October 26, 2000.
Tract I

CONDOMINIUM PROPERTY :

The land ("Land") situated in District No. One (1) of Loudon County, Tennessee and being known and designated as all of the Tellico Senior Living Neighborhood at Tellico Village Condominiums and all common elements of the project, as shown on the Plat of said Condominiums of record in Plat Cabinet C, Page 85 in the Register's Office of Loudon County, Tennessee, a Horizontal Property Regime described in Master Deed of record in Deed Book 282, Page 433 et seq.; in Amended Master Deed recorded in Deed Book 284, Page 528 et seq., in the Register's Office for Loudon County, Tennessee; and as further amended by that certain Partial Termination of and Amendment to Amended Master Deed and Declaration of Condominium Regime for Tellico Senior Living Neighborhood at Tellico Village dated October 28, 2013 of record in the Register's Office for Loudon County , Tennessee in Deed Book 366, page 661, ("Partial Termination") and the easement for ingress and egress across the roadways shown on the Plat, less and except Units 13, 14, 15, 16, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 90, 91, 92, 93, 94, 99, 100 (collectively the "Sold Units") and the undivided interest appurtenant to such Sold Units, in the common elements of the project as described in the Master Deed and Amended Master Deed. The easements, restrictive covenants, conditions and regulations imposed upon and



 

relating to the property units, co-owners, and tenants of the aforesaid condominiums contained in the Master Deed of record in Deed Book 282, Page 433 et seq.; in the Amended Master Deed recorded in Deed Book 284, Page 528 et seq., and the Partial Termination are incorporated herein by reference and made a part hereof, the same as though copied herein. The Land is more particularly described as follows:

BEGINNING AT A SET IRON PIN LOCATED N22°35'15"W 162.26' FROM THE INTERSECTION OF CHATUGA DR. AND LINDEN LN.

THENCE; S12°20'07"E A DISTANCE OF 273.52' TO A CHISELED X IN THE SIDEWALK. THENCE; S74°56'12"W A DISTANCE OF 118.00' TO AN IRON PIN SET. THENCE; N67°40'18"W A DISTANCE OF 26.20' TO AN IRON PIN SET. THENCE; N08°55'38"W A DISTANCE OF 95.00' TO AN IRON PIN SET. THENCE; WITH A CURVE TO THE RIGHT WITH A RADIUS OF 539.99', A LENGTH OF 45.26', A COURSE OF S87°21'32"W, AND A CHORD OF 45.24' TO A POINT. THENCE; S89°45'35"W A DISTANCE OF 159.05' TO AN IRON PIN SET. THENCE; S00°01'57"W A DISTANCE OF 101.33' TO AN IRON PIN SET. THENCE; S58°09'17"W A DISTANCE OF 50.89' TO AN IRON PIN SET. THENCE; S00°06'03"W A DISTANCE OF 50.00' TO AN EXISTING IRON PIN. THENCE; S00°06'03"W A DISTANCE OF 45.46' TO AN IRON PIN SET. THENCE; S89°03'05"W A DISTANCE OF 114.23' TO AN IRON PIN SET. THENCE; S00°07'01"W A DISTANCE OF 84.47' TO A POINT. THENCE; WITH A CURVE TO THE RIGHT WITH A RADIUS OF 72.08', A LENGTH OF 52.31', A COURSE OF S20°54'07"W, AND A CHORD OF 51.17' TO AN IRON PIN SET. THENCE; S00°45'34"E A DISTANCE OF 130.93' TO AN IRON PIN SET. THENCE; N89°39'57"E A DISTANCE OF 60.98' TO AN IRON PIN SET. THENCE; S00°20'03"E A DISTANCE OF 94.92' TO AN IRON PIN SET. THENCE; S89°38'52"W A DISTANCE OF 296.25' TO A POINT. THENCE; WITH A CURVE TO THE RIGHT WITH A RADIUS OF 96.00', A LENGTH OF 90.31', A COURSE OF N63°24'13"W, AND A CHORD OF 87.01' TO AN IRON PIN SET. THENCE; N89°54'10"W A DISTANCE OF 174.87' TO AN IRON PIN SET. THENCE; N00°08'32"E A DISTANCE OF 627.67' TO AN EXISTING IRON PIN. THENCE; N31°09'21"W A DISTANCE OF 151.25' TO AN EXISTING IRON PIN. THENCE; S76°50'17"W A DISTANCE OF 117.06' TO AN EXISTING IRON PIN. THENCE; N01°18'33"W A DISTANCE OF 389.18' TO AN EXISTING IRON PIN. THENCE; N89°38'02"E A DISTANCE OF 56.16' TO A MAG NAIL SET. THENCE; S14°18'06"E A DISTANCE OF 51.49' TO AN IRON PIN SET. THENCE; N89°31'41"E A DISTANCE OF 51.49' TO AN IRON PIN SET. THENCE; S14°17'46"E A DISTANCE OF 293.11' TO AN EXISTING METAL PIPE. THENCE; S31°11'58"E A DISTANCE OF 140.19' TO AN EXISTING METAL PIPE. THENCE; N79°58'20"E A DISTANCE OF 199.06' TO AN EXISTING METAL PIPE. THENCE; N89°10'14"E A DISTANCE OF 396.57' TO AN EXISTING METAL PIPE. THENCE; N83°14'01"E A DISTANCE OF 288.74' TO AN EXISTING METAL PIPE. THENCE; N83°22'27"E A DISTANCE OF 15.50' TO THE POINT OF BEGINNING. CONTAINING 12.60 ACRES AS SURVEYED BY VISION ENGINEERING AND DEVELOPMENT SERVICES, INC., H. WADE LOVIN RLS#2151 ON SEPTEMBER 30, 2013.





 

LESS AND EXCEPTED FROM THIS TRACT ARE PREVIOUSLY PURCHASED PARCELS 13-16, 74-83, 90-94, 99, AND 100 OF TAX MAP 68G GROUP E RECORDED AT THE REGISTER'S OFFICE OF LOUDON COUNTY, TENNESSEE.


TRACT II

TRACT 1R

TRACT 1R AS SHOWN ON THE "RESUBDIVISION OF TELLICO SENIOR LIVING, LLC LOTS 1 AND 2, AND CONDO UNITS: 25-61, 86-89, AND 95-98 PLAT CABINET C PG 85. AND TRACT ONE PLAT CABINET C PG. 84" RECORDED WITH THE REGISTER'S OFFICE FOR LOUDON COUNTY, TENNESSEE IN PLAT CABINET I, SLIDES 166 AND 167.

TRACT III

LOT 2R

LOT 2R AS SHOWN ON THE "RESUBDIVISION OF TELLICO SENIOR LIVING, LLC LOTS 1 AND 2, AND CONDO UNITS: 25-61, 86-89, AND 95-98 PLAT CABINET C PG 85. AND TRACT ONE PLAT CABINET C PG. 84" RECORDED WITH THE REGISTER'S OFFICE FOR LOUDON COUNTY, TENNESSEE IN PLAT CABINET I, SLIDES 166 AND 167.

TRACT IV (EASEMENT)

TOGETHER WITH JOINT (NON-EXCLUSIVE) EASEMENT AND MAINTENANCE AGREEMENT DATED NOVEMBER 18, 2002 RECORDED WITH THE REGISTER'S OFFICE FOR LOUDON COUNTY, TENNESSEE IN TRUST BOOK 616, PAGE 259.

TOGETHER WITH RECIPROCAL EASEMENT AGREEMENT DATED OCTOBER 28, 2013, RECORDED WITH THE REGISTER'S OFFICE FOR LOUDON COUNTY, TENNESSEE IN DEED BOOK 366, PAGE 687.

TOGETHER WITH ALL RIGHTS AND EASEMENTS IN THE DECLARATION OF COVENANTS AND RESTRICTIONS DATED DECEMBER 16, 1985 AND RECORDED WITH THE REGISTER'S OFFICE FOR LOUDON COUNTY, TENNESSEE IN TRUST BOOK 209, PAGE 96, AS AMENDED OF RECORD.

TOGETHER WITH ALL RIGHTS AND EASEMENT IN THE AMENDED AND RESTATED MASTER DEED RECORDED WITH THE REGISTER'S OFFICE FOR LOUDON COUNTY, TENNESSEE IN DEED BOOK D284, PAGE 528 AS AMENDED OF RECORD.




 

BEING the same property conveyed to FSQC Tellico Village LLC by Special Warranty Deed dated December 20, 2013, of record in Deed Book 366, page 674, and by Quit Claim Deed dated December 20, 2013, of record in Deed Book 366, page 680, in the Register's Office for Loudon County, Tennessee.
 





SCHEDULE 2
FVE SELLERS, SNH PURCHASERS AND PURCHASE PRICES



 

Property
FVE Seller
SNH Purchaser
Purchase Price
Loan Status
Terrace at Grove Park
101 Tulip Lane
Dothan, Alabama 36305
Five Star Quality Care-Grove Park, LLC (MD)
SNH Grove Park Trust (MD)

$22,250,000
N/A
Granite Gate Community – Parcel 2
3850 North US Highway 89
Prescott, AZ 86301

Five Star Quality Care-Granite Gate, LLC (DE)
SNH Granite Gate Inc. (MD)


$20,100,000

Assume
Granite Gate Community – Parcels 1 and 3 (Parking)
3850 North US Highway 89
Prescott, AZ 86301

Five Star Quality Care - OBX Owner, LLC (MD)
SNH Granite Gate Lands Trust (MD)

$2,150,000
N/A
Northwoods Commons
2501 Friendship Boulevard
Kokomo, Indiana 46227
Five Star
Northwoods LLC (DE)
SNH Northwoods LLC (MD)

$16,900,000 (inclusive of 5 Plex)
Prepay
5 Plex
Mallard Court
Kokomo, Indiana 46227

Five Star Quality Care - OBX
Operator, LLC (MD)
SNH Northwoods LLC (MD)

(see above)
N/A
Park Place of Fountain City
3030 Holbrook Drive
5405 Colonial Circle
Knoxville, Tennessee 37918

FVE Parkview Properties Inc. (MD)
SNH Park Place I Inc. (MD)

$8,500,000
Assume
Park Place of West Knoxville
10914 Kingston Pike
Knoxville, Tennessee 37934

FVE Parkview Properties Inc. (MD)
SNH Park Place II Inc. (MD)

14,800,000
Assume
The Neighborhood at Tellico Village
100 Chatuga Drive West
Loudon, Tennessee 37774

FSQC Tellico Village LLC (MD)
SNH Tellico Trust (MD)
$19,300,000 (plus costs and expenses paid by Seller in connection with the Tellico Village Construction Work from and after September 1, 2017 and prior to Closing as set forth in the Purchase Agreement for the Tellico Village Property)

N/A







SCHEDULE 3
FVE DISCLOSURE SCHEDULE

Section 4.1(3): No Violations

Section 4.1 (4): Approvals
Alabama State Health Planning & Development Agency: Certificate of Need Change of Ownership Approval for The Terrace at Grove Park Specialty Care Assisted Living Facility
Alabama Department of Public Health: Licensing Change of Ownership Approval for The Terrace at Grove Park Specialty Care Assisted Living Facility
Alabama Department of Public Health: Licensing Change of Ownership Approval for The Terrace at Grove Park
Arizona Department of Health Services: Licensing Change of Ownership Approval for the Granite Gate Community
Tennessee Department of Health: Licensing Change of Ownership Approval for The Neighborhood at Tellico Village
The Lender Consents with respect to the Assumed Loans








SCHEDULE 4
SNH DISCLOSURE SCHEDULE
Section 4.2(4): Approvals
Alabama State Health Planning & Development Agency: Certificate of Need Change of Ownership Approval for The Terrace at Grove Park Specialty Care Assisted Living Facility
Alabama Department of Public Health: Licensing Change of Ownership Approval for The Terrace at Grove Park Specialty Care Assisted Living Facility
Alabama Department of Public Health: Licensing Change of Ownership Approval for The Terrace at Grove Park
Arizona Department of Health Services: Licensing Change of Ownership Approval for the Granite Gate Community
Tennessee Department of Health: Licensing Change of Ownership Approval for The Neighborhood at Tellico Village
The Lender Consents with respect to the Assumed Loans





Exhibit 10.2

FIRST AMENDMENT TO POOLING AGREEMENTS
(NOS. 1 THROUGH 11)
THIS FIRST AMENDMENT TO POOLING AGREEMENTS (this “ Amendment ”) is made as of November 8, 2017 by and among FVE Managers, Inc. (“ Manager ”) and the other parties listed on the signature pages hereto (each a “ TRS ” and collectively, “ TRSes ”).
RECITALS:
Manager and TRSes are parties to those certain Pooling Agreements identified with respect to such TRSes on the signature pages hereto (collectively, the “ Pooling Agreements ”). Capitalized terms used in this Amendment without definition have the meaning given therefor in the Pooling Agreements.
Manager and TRSes are entering into this Amendment pursuant to that certain Transaction Agreement dated November 8, 2017 by and between Senior Housing Properties Trust and Five Star Senior Living Inc.
NOW, THEREFORE, the parties agree as follows:
1. Section 5.01 . Section 5.01 of each of the Pooling Agreements is amended and restated as follows:
“5.01     Shortfall . If in any period consisting of three (3) consecutive calendar years (commencing with calendar year 2017) the Aggregate TRS Priority Return for each of such three (3) years has not been paid in full (the aggregate amount of such shortfall, the “ Priority Return Shortfall ”), by notice given within sixty (60) days after receipt of the Aggregate Annual Statement for such third (3 rd ) year, TRSes may terminate all, but not less than all, of the Management Agreements identified on Schedule C. Prior to exercising the right to terminate, TRSes shall give Manager notice and, if within ten (10) days thereafter, Manager funds the Priority Return Shortfall together with interest accrued thereon at the Interest Rate (a “ Manager Shortfall Advance ”), TRSes shall not exercise the right to terminate, provided Manager may not exercise its right to fund the Priority Return Shortfall more frequently than once every four (4) years. Manager may recover any amounts paid by it as a Manager Shortfall Advance as provided in Section 3.01, provided that amounts not recovered during the four (4) calendar years following the year in which payment of a Manager Shortfall Advance was made shall be deemed waived and shall not be payable in any subsequent year.”
2.      Remainder of the Pooling Agreements Not Affected . The terms and provisions of each of the Pooling Agreements, as amended by this Amendment, remain in full force and effect without change.
[Signatures begin on the following page.]



IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement with the intention of creating an instrument under seal.
FVE MANAGERS, INC.
By:
/s/ Bruce J. Mackey Jr.            
Bruce J. Mackey Jr.
President


With respect to Pooling Agreement No. 1 dated as of June 29, 2016 with an effective date of July 1, 2016:
SNH SE ASHLEY RIVER TENANT LLC
SNH SE KINGS MTN TENANT LLC

SNH SE TENANT TRS, INC.
By:
/s/ Richard W. Siedel, Jr.            
Richard W. Siedel, Jr.
President
With respect to Pooling Agreement No. 2 dated as of June 29, 2016 with an effective date of July 1, 2016:
SNH SE BURLINGTON TENANT LLC
SNH SE HABERSHAM SAVANNAH TENANT LLC
SNH SE HOLLY HILL TENANT LLC
SNH SE MOORESVILLE TENANT LLC
SNH SE N. MYRTLE BEACH TENANT LLC
SNH SE TENANT TRS, INC.
By:
/s/ Richard W. Siedel, Jr.            
Richard W. Siedel, Jr.
President


- 2 -


With respect to Pooling Agreement No. 3 dated as of June 29, 2016 (as amended to date) with an effective date of July 1, 2016:
SNH BRFL TENANT LLC
SNH CALI TENANT LLC
SNH CCMD TENANT LLC
SNH PLFL TENANT LLC
SNH SE BARRINGTON BOYNTON TENANT LLC
SNH SE TENANT TRS, INC.
By:
/s/ Richard W. Siedel, Jr.            
Richard W. Siedel, Jr.
President
With respect to Pooling Agreement No. 4 dated as of June 29, 2016 with an effective date of July 1, 2016:
SNH SE DANIEL ISLAND TENANT LLC
SNH SE SG TENANT LLC
SNH SE TENANT TRS, INC.
SNH TEANECK TENANT LLC


By:
/s/ Richard W. Siedel, Jr.            
Richard W. Siedel, Jr.
President
With respect to Pooling Agreement No. 5, Pooling Agreement No. 6, and Pooling Agreement No. 7 each dated as of June 29, 2016 with an effective date of July 1, 2016:
SNH SE TENANT TRS, INC.


By:
/s/ Richard W. Siedel, Jr.            
Richard W. Siedel, Jr.
President

- 3 -


With respect to Pooling Agreement No. 8 dated as of June 29, 2016 with an effective date of July 1, 2016:
SNH AL AIMO TENANT, INC.

By:
/s/ Richard W. Siedel, Jr.            
Richard W. Siedel, Jr.
President
With respect to Pooling Agreement No. 9 dated as of June 29, 2016 with an effective date of July 1, 2016:
SNH AL AIMO TENANT, INC.
SNH AL AIMO TENANT II, INC.
SNH AL TRS, INC.


By:
/s/ Richard W. Siedel, Jr.            
Richard W. Siedel, Jr.
President
With respect to Pooling Agreement No. 10 dated as of June 29, 2016 with an effective date of July 1, 2016:
SNH AL CRIMSON TENANT INC.
SNH AL TRS, INC.
SNH AL WILMINGTON TENANT INC.
SNH SE TENANT TRS, INC.
SNH AL CUMMING TENANT LLC


By:
/s/ Richard W. Siedel, Jr.            
Richard W. Siedel, Jr.
President

- 4 -


With respect to Pooling Agreement No. 11 with an effective date of December 15, 2016:

SNH AL GEORGIA TENANT LL C

By:
/s/ Richard W. Siedel, Jr.            
Richard W. Siedel, Jr.
President

- 5 -


Exhibit 31.1
CERTIFICATION PURSUANT TO EXCHANGE ACT RULES 13a-14(a) AND 15d-14(a)

I, Bruce J. Mackey Jr., certify that:
 
1.
I have reviewed this Quarterly Report on Form 10-Q of Five Star Senior Living Inc.;
 
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a.
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b.
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c.
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d.
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

a.
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b.
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. 
 
 
 
 
 
Date: November 9, 2017
/s/ Bruce J. Mackey Jr.
 
Bruce J. Mackey Jr.
 
President and Chief Executive Officer






Exhibit 31.2

CERTIFICATION PURSUANT TO EXCHANGE ACT RULES 13a-14(a) AND 15d-14(a)

I, Richard A. Doyle, certify that:

1.
I have reviewed this Quarterly Report on Form 10-Q of Five Star Senior Living Inc.;

2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
 
a.
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b.
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c.
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d.
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

a.
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b.
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. 

 
  
 
 
Date: November 9, 2017
/s/ Richard A. Doyle
 
Richard A. Doyle
 
Chief Financial Officer and Treasurer






Exhibit 32.1

CERTIFICATION PURSUANT TO 18 U.S.C. SEC. 1350




In connection with the filing by Five Star Senior Living Inc. (the “Company”) of the Quarterly Report on Form 10-Q for the quarter ended September 30, 2017 (the “Report”), each of the undersigned hereby certifies, to the best of his knowledge:

1.
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

2.
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.




 
 
/s/ Bruce J. Mackey Jr.
 
Bruce J. Mackey Jr.
 
President and Chief Executive Officer
 
 
/s/ Richard A. Doyle
 
Richard A. Doyle
 
Chief Financial Officer and Treasurer
 
 
Date: November 9, 2017