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 June 30, 2018  
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.  
 
 
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 August 8, 2018 :   50,582,844 .  
 
 
 
 
 



FIVE STAR SENIOR LIVING INC.
FORM 10-Q
JUNE 30, 2018
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)
 
 
June 30, 2018
 
December 31, 2017
ASSETS
 
 
 
 
Current assets:
 
 
 
 
Cash and cash equivalents
 
$
22,137

 
$
26,255

Accounts receivable, net of allowance of $4,570 and $3,572 at June 30, 2018 and December 31, 2017, respectively
 
35,849

 
38,673

Due from related persons
 
6,502

 
4,774

Investments, of which $10,716 and $7,310 are restricted at June 30, 2018 and December 31, 2017, respectively
 
19,556

 
22,524

Restricted cash
 
19,842

 
20,747

Prepaid expenses and other current assets
 
20,677

 
25,132

Assets held for sale
 
—

 
59,080

Total current assets
 
124,563

 
197,185

 
 
 
 
 
Property and equipment, net
 
247,628

 
251,504

Equity investment of an investee
 
8,158

 
8,185

Restricted cash
 
1,841

 
1,476

Restricted investments
 
11,024

 
10,758

Other long term assets
 
6,145

 
6,800

Total assets
 
$
399,359

 
$
475,908

 
 
 
 
 
LIABILITIES AND SHAREHOLDERS’ EQUITY
 
 
 
 
Current liabilities:
 
 
 
 
Revolving credit facility
 
$
—

 
$
—

Accounts payable and accrued expenses
 
62,968

 
74,734

Accrued compensation and benefits
 
40,635

 
37,893

Due to related persons
 
18,567

 
18,683

Mortgage notes payable
 
327

 
316

Accrued real estate taxes
 
11,536

 
11,801

Security deposits and current portion of continuing care contracts
 
3,760

 
4,073

Other current liabilities
 
35,332

 
36,361

Liabilities held for sale
 
—

 
34,781

Total current liabilities
 
173,125

 
218,642

 
 
 
 
 
Long term liabilities:
 
 
 
 
Mortgage notes payable
 
7,705

 
7,872

Accrued self insurance obligations
 
34,656

 
33,082

Deferred gain on sale and leaseback transaction
 
62,782

 
66,087

Other long term liabilities
 
4,905

 
5,231

Total long term liabilities
 
110,048

 
112,272

 
 
 
 
 
Commitments and contingencies
 

 

 
 
 
 
 
Shareholders’ equity:
 
 
 
 
Common stock, par value $.01: 75,000,000 shares authorized, 50,585,604 and 50,524,424 shares issued and outstanding at June 30, 2018 and December 31, 2017, respectively
 
506

 
505

Additional paid in capital
 
361,432

 
360,942

Accumulated deficit
 
(247,385
)
 
(220,489
)
Accumulated other comprehensive income
 
1,633

 
4,036

Total shareholders’ equity
 
116,186

 
144,994

 
 
$
399,359

 
$
475,908

See accompanying notes.

1

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


 
 
Three Months Ended June 30,
 
Six Months Ended June 30,
 
 
2018
 
2017
 
2018
 
2017
Revenues:
 
 
 
 
 
 
 
 
Senior living revenue
 
$
270,882

 
$
280,852

 
$
545,407

 
$
563,284

Management fee revenue
 
3,777

 
3,554

 
7,399

 
7,117

Reimbursed costs incurred on behalf of managed communities
 
68,439

 
65,619

 
135,809

 
130,313

Total revenues
 
343,098

 
350,025

 
688,615

 
700,714

 
 
 
 
 
 
 
 
 
Operating expenses:
 
 
 
 
 
 
 
 
Senior living wages and benefits
 
140,713

 
136,610

 
276,882

 
274,941

Other senior living operating expenses
 
75,764

 
74,573

 
149,541

 
147,842

Costs incurred on behalf of managed communities
 
68,439

 
65,619

 
135,809

 
130,313

Rent expense
 
52,113

 
51,514

 
104,358

 
102,745

General and administrative expenses
 
18,477

 
19,345

 
38,440

 
38,882

Depreciation and amortization expense
 
8,977

 
9,801

 
17,837

 
19,287

Gain on sale of senior living communities
 
(1,509
)
 
—

 
(7,193
)
 
—

Long lived asset impairment
 
365

 
176

 
365

 
386

Total operating expenses
 
363,339

 
357,638

 
716,039

 
714,396

 
 
 
 
 
 
 
 
 
Operating loss
 
(20,241
)
 
(7,613
)
 
(27,424
)
 
(13,682
)
 
 
 
 
 
 
 
 
 
Interest, dividend and other income
 
218

 
208

 
385

 
392

Interest and other expense
 
(604
)
 
(1,083
)
 
(1,307
)
 
(2,061
)
Unrealized gain (loss) on equity investments
 
44

 
—

 
(6
)
 
—

Realized (loss) gain on sale of debt and equity investments, net of tax
 
(42
)
 
242

 
(10
)
 
281

 
 
 
 
 
 
 
 
 
Loss before income taxes and equity in earnings of an investee
 
(20,625
)
 
(8,246
)
 
(28,362
)
 
(15,070
)
(Provision) benefit for income taxes
 
(281
)
 
1,366

 
(537
)
 
1,275

Equity in earnings of an investee, net of tax
 
12

 
374

 
56

 
502

Net loss
 
$
(20,894
)
 
$
(6,506
)
 
$
(28,843
)
 
$
(13,293
)
 
 
 
 
 
 
 
 
 
Weighted average shares outstanding—basic and diluted
 
49,653

 
49,192

 
49,624

 
49,177

 
 
 
 
 
 
 
 
 
Net loss per share—basic and diluted
 
$
(0.42
)
 
$
(0.13
)
 
$
(0.58
)
 
$
(0.27
)
 
See accompanying notes.


2

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


 
Three Months Ended
June 30,
 
Six Months Ended
June 30,
 
2018
 
2017
 
2018
 
2017
 
 
 
 
 
 
 
 
Net loss
$
(20,894
)
 
$
(6,506
)
 
$
(28,843
)
 
$
(13,293
)
Other comprehensive income:
 
 
 
 
 
 
 
Unrealized (loss) gain on investments, net of tax
(43
)
 
87

 
(440
)
 
359

Equity in unrealized gain (loss) of an investee, net of tax
10

 
58

 
(83
)
 
180

Realized loss (gain) on investments reclassified and included in net loss, net of tax
70

 
(242
)
 
67

 
(281
)
Other comprehensive income
37

 
(97
)
 
(456
)
 
258

Comprehensive loss
$
(20,857
)
 
$
(6,603
)
 
$
(29,299
)
 
$
(13,035
)
See accompanying notes.


3

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


 
 
Six Months Ended June 30,
 
 
2018
 
2017
Cash flows from operating activities:
 
 
 
 
Net loss
 
$
(28,843
)
 
$
(13,293
)
Adjustments to reconcile net loss to cash provided by (used in) operating activities:
 
 
 
 
Depreciation and amortization expense
 
17,837

 
19,287

Gain on sale of senior living communities
 
(7,193
)
 
—

Unrealized loss on equity investments
 
6

 
—

Realized loss (gain) on sale of debt and equity investments
 
10

 
(281
)
Loss on disposal of property and equipment
 
209

 
113

Long lived asset impairment
 
365

 
386

Equity in earnings of an investee
 
(56
)
 
(502
)
Stock based compensation
 
491

 
558

Provision for losses on receivables
 
2,637

 
2,418

Amortization of deferred gain on sale and leaseback transaction
 
(3,305
)
 
(3,304
)
Other noncash expense (income) adjustments, net
 
96

 
265

Changes in assets and liabilities:
 
 
 
 

Accounts receivable
 
187

 
(3,343
)
Prepaid expenses and other assets
 
4,766

 
559

Accounts payable and accrued expenses
 
(11,165
)
 
(1,299
)
Accrued compensation and benefits
 
2,742

 
3,680

Due from related persons, net
 
(1,798
)
 
6,938

Other current and long term liabilities
 
(302
)
 
(609
)
Cash (used in) provided by operating activities
 
(23,316
)
 
11,573

 
 
 
 
 
Cash flows from investing activities:
 
 
 
 
Acquisition of property and equipment
 
(23,680
)
 
(38,012
)
Purchases of investments
 
(2,682
)
 
(9,389
)
Proceeds from sale of property and equipment
 
8,529

 
19,308

Proceeds from sale of communities
 
31,853

 
—

Proceeds from sale of investments
 
4,981

 
12,791

Cash provided by (used in) investing activities
 
19,001

 
(15,302
)
 
 
 
 
 
Cash flows from financing activities:
 
 
 
 
Proceeds from borrowings on revolving credit facility
 
5,000

 
35,000

Repayments of borrowings on revolving credit facility
 
(5,000
)
 
(35,000
)
Repayments of mortgage notes payable
 
(343
)
 
(672
)
Payment of deferred financing fees
 
—

 
(1,898
)
Cash used in financing activities
 
(343
)
 
(2,570
)
 
 
 
 
 
Cash flows from discontinued operations:
 
 
 
 
Net cash provided by operating activities
 
—

 
1,003

Net cash flows provided by discontinued operations
 
—

 
1,003

 
 
 
 
 
Change in cash and cash equivalents and restricted cash
 
(4,658
)
 
(5,296
)
Cash and cash equivalents and restricted cash at beginning of period
 
48,478

 
33,576

Cash and cash equivalents and restricted cash at end of period
 
$
43,820

 
$
28,280

 
 
 
 
 
Reconciliation of cash and cash equivalents and restricted cash:
 
 
 
 
Cash and cash equivalents
 
$
22,137

 
$
7,200

Restricted cash
 
21,683

 
21,080

Cash and cash equivalents and restricted cash at end of period
 
$
43,820

 
$
28,280

 
 
 
 
 
Supplemental cash flow information:
 
 
 
 
Cash paid for interest
 
$
1,002

 
$
1,914

Cash paid for income taxes, net
 
$
348

 
$
198

 
 
 
 
 
Non-cash activities:
 
 
 
 
Real estate sale
 
$
33,364

 
$
—

Mortgage notes assumed by purchaser in real estate sale
 
$
33,364

 
$
—

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

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, 2017 , 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 June 30, 2018 , we operated 283   senior living communities located in 32 states with 31,800 living units, including 254 primarily independent and assisted living communities with 29,295 living units and 29 SNFs with 2,505 living units. As of June 30, 2018 , we owned and operated 20 of these senior living communities ( 2,108 living units), we leased and operated 188 of these senior living communities ( 20,182 living units) and we managed 75 of these senior living communities ( 9,510 living units). Our 283 senior living communities, as of June 30, 2018 , included 10,741 independent living apartments, 16,287 assisted living suites and 4,772 SNF units. The foregoing numbers exclude living units categorized as out of service.  

Segment Information

We have two operating segments: (i) senior living community and (ii) rehabilitation and wellness. In the senior living community 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 therapy services, including physical, occupational, speech and other specialized therapy 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, professional and general liability and certain automobile insurance programs.

Note 2. Summary of Significant Accounting Policies

Revenue Recognition

On January 1, 2018, we adopted FASB ASC Topic 606, Revenue from Contracts with Customers, or ASC Topic 606, under the modified retrospective approach applied to certain contracts which were not completed as of December 31, 2017 using the practical expedient in paragraph 606-10-10-4 that allows for the use of a portfolio approach, because we have determined that the effect of applying the guidance to our portfolios of contracts within the scope of ASC Topic 606 on our consolidated financial statements would not differ materially from applying the guidance to each individual contract within the respective portfolio or our performance obligations within that portfolio. This approach will also be used for future contract modifications, if any. The five step model defined by ASC Topic 606 requires us to (1) identify our contracts with customers, (2) identify our performance obligations under those contracts, (3) determine the transaction prices of those contracts, (4) allocate the transaction prices to our performance obligations in those contracts and (5) recognize revenue when each performance obligation under those contracts is satisfied. Revenue is recognized when promised goods or services are transferred to the customer in an amount that reflects the consideration expected in exchange for those goods or services. Our adoption of ASC Topic 606 did not result in an adjustment to our retained earnings and did not have a material impact on the amount and timing of our revenue recognition for the three and six months ended June 30, 2018.


5

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


A substantial portion of our revenue relates to contracts with residents for housing services that are generally short term in nature and fall under FASB ASC Topic 840, Leases , or ASC Topic 840, which are specifically excluded from the scope of ASC Topic 606. Our contracts with residents and other customers that are within the scope of ASC Topic 606 are also generally short term in nature. We have determined that services performed under those contracts are considered one performance obligation in accordance with ASC Topic 606 as such services are regarded a series of distinct events with the same timing and pattern of transfer to the resident or customer. Revenue is recognized for those contracts when our performance obligation is satisfied by transferring control of the service provided to the resident or customer, which is generally when the services are provided over time.

Senior Living Revenue. Resident fees at our independent living and assisted living communities consist of regular monthly charges for basic housing and support services and fees for additional requested services, such as assisted living services, personalized health services and ancillary services. Fees are specified in our agreements with residents, which are generally short term ( 30 days to one year ), with regular monthly charges billed in advance. Funds received from residents in advance of services being provided are not material to our consolidated financial statements. Some of our senior living communities require payment of an entrance fee in advance of a resident moving into the community; substantially all of these community fees are non-refundable and are initially recorded as deferred revenue and included in other current liabilities in our consolidated balance sheets. These deferred amounts then are amortized on a straight line basis into revenue over the term of the resident agreement. Revenue recorded and deferred in connection with community fees is not material to our consolidated financial statements. A substantial portion of our senior living revenue related to housing services falls under ASC Topic 840, and is recorded on a straight line basis over the term of the resident agreement. Revenue for additional requested services is recognized in accordance with ASC Topic 606 and measured based on the consideration specified in the resident agreement and is recorded when the services are provided.

In our SNFs and certain of our independent and assisted living communities where we provide SNF services, we are paid fixed daily rates from governmental and contracted third party payers, and we charge a predetermined fixed daily rate for private pay residents. These fixed daily rates and certain other fees are billed monthly in arrears. Although there are complex regulatory compliance rules governing fixed daily rates, we have no episodic payments or capitation arrangements. We currently use the “most likely amount” technique to estimate revenue in accordance with ASC Topic 606, although rates are generally known and considered fixed prior to services being performed, whether included in the resident agreement or contracted with governmental or third party payers. Rate adjustments from Medicare or Medicaid are recorded when known (without regard to when the assessment is paid or withheld), and subsequent adjustments to these amounts are recorded in revenues when known. Billings under certain of these programs are subject to audit and possible retroactive adjustment, and related revenue is recorded at the amount we ultimately expect to receive, which is inclusive of the estimated retroactive adjustments or refunds, if any, under reimbursement programs. Retroactive adjustments are recorded on an estimated basis in the period the related services are rendered and adjusted in future periods or as final settlements are determined. Revenue is recognized when performance obligations are satisfied by transferring control of the service provided to the resident, which is generally when services are provided over the duration of care. We derived approximately 22.8% and 23.0% of our senior living revenues for the three months ended June 30, 2018 and 2017, respectively, and 23.2% and 23.1% for the six months ended June 30, 2018 and 2017, respectively, from payments under Medicare and Medicaid programs.

Management Fee Revenue and Reimbursed Costs Incurred on Behalf of Managed Communities. We manage senior living communities for the account of Senior Housing Properties Trust, or, together with its subsidiaries, SNH, pursuant to long term management agreements which provide for periodic management fee payments to us and reimbursement for our direct costs and expenses related to such communities. Management fees are determined by an agreed upon percentage of gross revenues (as defined) and recognized in accordance with ASC Topic 606 in the same period that we provide the management services to SNH, generally monthly. FASB Accounting Standards Update, or ASU, No. 2016-08, Revenue from Contracts with Customers (Topic 606): Principal versus Agent Considerations (Reporting Revenue Gross versus Net) , which we adopted effective January 1, 2018, 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. Where we are the primary obligor and therefore control the transfer of the goods and services with respect to any such operating expenses incurred in connection with the management of these communities, we recognize revenue when the goods have been delivered or the service has been rendered and we are due to be reimbursed from SNH. Such revenue is included in reimbursed costs incurred on behalf of managed communities in our consolidated statements of operations. The related costs are included in costs incurred on behalf of managed communities in our consolidated statements of operations. Amounts due from SNH related to management fees and reimbursed costs incurred on behalf of managed communities are included in due from related persons in our consolidated balance sheets.

6

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



The following table presents revenue disaggregated by type of contract and payer:

 
 
Three Months Ended
June 30, 2018
 
Six Months Ended
June 30, 2018
Leasing revenue (1)
 
161,778

 
323,882

Revenue from contracts with customers:
 
 
 
 
Medicare and Medicaid programs (1)
 
61,824

 
126,427

Additional requested services, and private pay and other third party payer SNF services (1)
 
47,280

 
95,098

Management fee revenue
 
3,777

 
7,399

Reimbursed costs incurred on behalf of managed communities
 
68,439

 
135,809

 
 
181,320

 
364,733

Total revenues
 
343,098

 
688,615


(1)
Included in senior living revenue in our consolidated statements of operations.

Recent Accounting Pronouncements

On January 1, 2018, we adopted FASB 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. Prior to our adoption of this ASU, we recorded changes in the fair value of our equity investments through other comprehensive income. Pursuant to this ASU, these changes will now be recorded through earnings. We adopted this ASU using the cumulative effect adjustment method and recorded an adjustment of $1,107 on January 1, 2018 to accumulated other comprehensive income and accumulated deficit in our consolidated balance sheets. Affiliates Insurance Company, or AIC, a private company in which we have an equity investment, chose to early adopt this ASU during the second quarter of 2018, and therefore we recorded a cumulative effect adjustment of $840 to accumulated other comprehensive income and accumulated deficit in our consolidated balance sheets to reflect our share of AIC's adjustment to its equity investments. See Note 11 for more information regarding our arrangements with AIC.

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. 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 No. 2014-09, as amended by ASU No. 2017-05, Other Income - Gains and Losses from the Derecognition of Nonfinancial Assets . Under these ASUs, income recognition for real estate sales is primarily based on the transfer of control of the real estate rather than the continuing involvement in the real estate under the current guidance. As a result, more of our transactions may qualify as real estate sales and we may be required to recognize gains or losses sooner. We adopted these ASUs on January 1, 2018 using the modified retrospective approach. The adoption of these ASUs did not result in any adjustment to our initial retained earnings and did not result in any significant change to the amount and timing of our revenue recognition. The adoption of these ASUs did result in expanded disclosures related to the nature, amount, timing and uncertainty of our revenue and cash flows arising from our contracts with customers that are included within the scope of these ASUs. See also the discussion above under “Revenue Recognition” for more information regarding the impact of these ASUs on our consolidated financial statements.

On January 1, 2018, we adopted FASB ASU No. 2016-15, Statement of Cash Flows (Topic 230): Classification of Certain Cash Receipts and Cash Payments , which clarifies how entities present and classify certain cash receipts and cash payments in the statement of cash flows. The adoption of this ASU did not have a material impact on our consolidated financial statements.

On January 1, 2018, we adopted FASB 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 presented in the statement of cash flows include restricted cash and restricted cash equivalents. We adopted this ASU retrospectively to all periods presented in our consolidated statement of cash flows. Pursuant to this ASU, in the event restricted cash is presented separately from cash and cash equivalents in the balance sheets, entities are required to reconcile the amounts presented in the statement of cash flows to

7

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


the amounts presented in the balance sheet and to disclose information about the nature of the restrictions. We have presented our consolidated statement of cash flows to reconcile both cash and cash equivalents and restricted cash and restricted cash equivalents and have provided a reconciliation to the amounts presented in our consolidated statements of cash flows to the amounts presented in our consolidated balance sheets.

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). This ASU 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. 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. This ASU is effective for reporting periods beginning after December 15, 2018, with early adoption permitted. In July 2018, the FASB issued ASU No. 2018-11, Leases (Topic 842): Targeted Improvements , which works to improve on certain aspects of ASU No. 2016-02 identified by stakeholders as problematic or difficult to implement, including the adoption method. Currently, entities are required to adopt this ASU using a modified retrospective transition method. Under that transition method, an entity initially applies this ASU at the beginning of the earliest period presented in its financial statements. ASU No. 2018-11 provides another adoption method, which allows entities to initially apply ASU No. 2016-02 at the adoption date and recognize a cumulative effect adjustment to the opening balance of retained earnings in the period of adoption. ASU No. 2018-11 also provides lessors with a practical expedient, by class of underlying asset, not to separate non-lease components from the associated lease component if certain conditions are met. In addition, ASU No. 2018-11 clarifies which ASC Topic (Topic 842 or Topic 606) applies for the combined component. Specifically, if the non-lease components associated with the lease component are the predominant component of the combined component, an entity should account for the combined component in accordance with ASC Topic 606. Otherwise, the entity should account for the combined component as an operating lease in accordance with ASC Topic 842. While we are continuing to assess the potential impact that the adoption of ASU No. 2016-02 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 lease rights and obligations as assets and liabilities. While the adoption of this ASU will not affect the rent we pay, we expect the amounts presented in our consolidated statements of operations and comprehensive loss to change materially.
 
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 requires reflection of 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 that the adoption of this ASU will have on our consolidated financial statements.

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 that the adoption of this ASU will have on our consolidated financial statements.

In February 2018, the FASB issued ASU No. 2018-02, Income Statement—Reporting Comprehensive Income (Topic 220) , which permits an entity to reclassify the tax effects that remain recorded within other comprehensive income to retained earnings as a result of tax reform legislation that became effective in December 2017. This ASU is effective for reporting periods beginning after December 15, 2018. We are currently assessing the potential impact that the adoption of this ASU will have on our consolidated financial statements.

In June 2018, the FASB issued ASU No. 2018-07, Compensation—Stock Compensation (Topic 718) , which expands the scope of Topic 718 to include share based payment transactions for acquiring goods and services from non-employees. This ASU is

8

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


effective for reporting periods beginning after December 15, 2019. We are currently assessing the potential impact that the adoption of this ASU will have on our consolidated financial statements.

Note 3. Property and Equipment

Property and equipment consists of the following:
 
 
June 30, 2018
 
December 31, 2017
Land
 
$
16,383

 
$
16,383

Buildings and improvements
 
208,079

 
211,812

Furniture, fixtures and equipment
 
225,395

 
208,262

Property and equipment, at cost
 
449,857

 
436,457

Accumulated depreciation
 
(202,229
)
 
(184,953
)
Property and equipment, net
 
$
247,628

 
$
251,504

 
We recorded depreciation expense relating to our property and equipment of $ 8,957 and $ 9,729 for the three months ended June 30, 2018 and 2017 , respectively, and $ 17,797 and $ 19,131 for the six months ended June 30, 2018 and 2017 , respectively.
 
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 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 impairment charges to certain of our long lived assets of $365 for each of the three and six months ended June 30, 2018 and $176 and $386 for the three and six months ended June 30, 2017 , respectively.

As of June 30, 2018 and December 31, 2017 , we had $0 and $59,080 , respectively, of net property and equipment classified as held for sale and presented separately in our consolidated balance sheets. See Note 9 for more information regarding our communities that we had classified as held for sale.
 
As of June 30, 2018 , we had $2,561 of assets related to our leased senior living communities included in our property and equipment that we expect to request SNH to purchase from us for an increase in future rent; however, SNH is not obligated to purchase such amounts. See Note 9 for more 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 six months ended June 30, 2018 :
 
 
Equity
Investment of an
Investee
 
Investments
 
Accumulated
Other
Comprehensive
Income
Balance at January 1, 2018
 
$
642

 
$
3,394

 
$
4,036

Cumulative effect of reclassification of unrealized gain on equity investments in connection with the adoption of FASB ASU No. 2016-01
 
(840
)
 
(1,107
)
 
(1,947
)
Unrealized loss on investments, net of tax
 
—

 
(440
)
 
(440
)
Equity in unrealized loss of an investee, net of tax
 
(83
)
 
—

 
(83
)
Realized loss on investments reclassified and included in net loss, net of tax
 
—

 
67

 
67

Balance at June 30, 2018
 
$
(281
)
 
$
1,914

 
$
1,633

 
Accumulated other comprehensive income represents the unrealized gains and losses of our debt investments, net of tax, and our share of other comprehensive income of AIC. See Note 11 for more information regarding our arrangements with AIC.

9

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



Note 5.  Income Taxes

We recognized a provision for income taxes of $281 and $537 for the three and six months ended June 30, 2018, respectively. We recognized a benefit for income taxes of $1,366 and $1,275 for the three and six months ended June 30, 2017 , respectively. The provision for income taxes for the three and six months ended June 30, 2018 relates to our state income taxes. The benefit for income taxes for the three and six months ended June 30, 2017 is due primarily to our monetization of alternative minimum tax credits during the second quarter of 2017.

We previously determined it was more likely than not that a majority of our net deferred tax assets would not be realized and concluded that a valuation allowance was required, which eliminated the majority 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.

Note 6.  Earnings Per Share

We calculated basic earnings per common share, or EPS, for the three and six months ended June 30, 2018 and 2017 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 June 30, 2018 and 2017 had 1,245,186 and 1,097,605 , respectively, and the six months ended June 30, 2018 and 2017 had 1,255,478 and 1,021,037 , 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 on 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.


10

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 June 30, 2018 and December 31, 2017 categorized by the level of inputs used in the valuation of each asset.
 
 
As of June 30, 2018
 
 
 
 
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)
 
$
24,137

 
$
24,137

 
$
—

 
$
—

Investments:
 
 
 
 
 
 
 
 
Equity investments (2)
 
 
 
 
 
 
 
 
Financial services industry
 
1,935

 
1,935

 
—

 
—

REIT industry
 
123

 
123

 
—

 
—

Other
 
4,036

 
4,036

 
—

 
—

Total equity investments
 
6,094

 
6,094

 
—

 
—

Debt investments: (3)
 
 
 
 
 
 
 
 
International bond fund (4)
 
2,492

 
—

 
2,492

 
—

High yield fund (5)
 
2,755

 
—

 
2,755

 
—

Industrial bonds
 
2,049

 
—

 
2,049

 
—

Technology bonds
 
2,617

 
—

 
2,617

 
—

Government bonds
 
10,509

 
10,509

 
—

 
—

Energy bonds
 
592

 
—

 
592

 
—

Financial bonds
 
1,460

 
—

 
1,460

 
—

Other
 
2,012

 
—

 
2,012

 
—

Total debt investments
 
24,486

 
10,509

 
13,977

 
—

Total investments
 
30,580

 
16,603

 
13,977

 
—

Total
 
$
54,717

 
$
40,740

 
$
13,977

 
$
—

 

11

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


 
 
As of December 31, 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)
 
$
23,578

 
$
23,578

 
 
 
 
Investments:
 
 
 
 
 
 
 
 
Equity investments (2)
 
 
 
 
 
 
 
 
Financial services industry
 
2,199

 
2,199

 
—

 
—

REIT industry
 
145

 
145

 
—

 
—

Other
 
4,094

 
4,094

 
—

 
—

Total equity investments
 
6,438

 
6,438

 
—

 
—

Debt investments (3)
 
 
 
 
 
 
 
 
International bond fund (4)
 
2,511

 
—

 
2,511

 
—

High yield fund (5)
 
2,744

 
—

 
2,744

 
—

Industrial bonds
 
2,017

 
—

 
2,017

 
—

Technology bonds
 
2,972

 
—

 
2,972

 
—

Government bonds
 
10,707

 
10,610

 
97

 
—

Energy bonds
 
1,216

 
—

 
1,216

 
—

Financial bonds
 
1,423

 
—

 
1,423

 
—

Other
 
3,254

 
—

 
3,254

 
—

Total debt investments
 
26,844

 
10,610

 
16,234

 
—

Total investments
 
33,282

 
17,048

 
16,234

 
—

Total
 
$
56,860

 
$
40,626

 
$
16,234

 
$
—

 
 
(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 $ 20,518 and $ 20,316 of balances that are restricted at June 30, 2018 and December 31, 2017 , respectively.
(2)
The fair value of our equity investments is readily determinable. During the six months ended June 30, 2018 and 2017 , we received gross proceeds of $561 and $ 2,772 , respectively, in connection with the sales of equity investments and recorded gross realized gains totaling $65 and $313 , respectively, and gross realized losses totaling $4 and $142 , respectively.
 
(3)
As of June 30, 2018 , our debt investments, which are classified as available for sale, had a fair value of $ 24,486 with an amortized cost of $ 23,601 ; the difference between the fair value and amortized cost amounts resulted from unrealized gains of $ 1,296 , net of unrealized losses of $ 411 . As of December 31, 2017 , our debt investments had a fair value of $ 26,844 with an amortized cost of $ 25,589 ; the difference between the fair value and amortized cost amounts resulted from unrealized gains of $ 1,401 , net of unrealized losses of $ 146 . Debt investments include $15,616 and $18,068 of balances that are restricted as of June 30, 2018 and December 31, 2017, respectively. At June 30, 2018 , 53 of the securities we hold, with a fair value of $ 15,226 , have been in a loss position for less than 12 months and eight of the investments we hold, with a fair value of $ 1,824 , have been in a loss position for greater than 12 months . We do not believe these investments 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 investments remain strong with solid fundamentals, or we intend to hold these investments until recovery, and other factors that support our conclusion that the loss is temporary. During the six months ended June 30, 2018 and 2017 , we received gross proceeds of $ 4,420 and $ 10,019 , respectively, in connection with the sales of debt investments and recorded gross realized gains totaling $ 9 and $ 139 , respectively, and gross realized losses totaling $ 80 and $ 29 , respectively. We record gains and losses on the sales of these investments using the specific identification method.

(4)
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.
 
(5)
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 six months ended June 30, 2018 , 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 six months ended June 30, 2018 .

12

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


 
The carrying value of accounts receivable and accounts payable approximates fair value as of June 30, 2018 and December 31, 2017 .  The carrying value and fair value of our mortgage notes payable were $ 8,032 and $ 9,150 , respectively, as of June 30, 2018 and $ 8,188 and $ 9,617 , respectively, as of December 31, 2017 , and are categorized in Level 3 of 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. The carrying value and fair value of our mortgage notes payable as of December 31, 2017 excludes $34,781 of mortgage notes payable categorized as held for sale and presented separately in our condensed consolidated balance sheets. See Note 9 for more information regarding our communities classified as held for sale.

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 more information regarding fair value measurements related to impairments of our long lived assets we recorded.
 
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 a new $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 2017 in connection with the closing of our credit facility, which fees were deferred and are being 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 a rate based on, at our option, LIBOR or a base rate, plus a premium, or 4.50% and 6.50% , respectively, per annum as of June 30, 2018 , 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 6.50% and 5.44% for the six months ended June 30, 2018 and 2017 , respectively. We incurred aggregate interest expense and other associated costs related to our credit facilities of $270 and $305 for the three months ended June 30, 2018 and 2017 , respectively, and $535 and $490 for the six months ended June 30, 2018 and 2017 , respectively.

Our credit facility is secured by real estate mortgages on 10 senior living communities with a combined 1,219 living units owned by certain of our subsidiaries that guarantee our obligations under our credit facility. Our credit facility is also secured by these 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 governing our credit facility, or our credit agreement, 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.

The lenders under our credit facility have waived for the period of six fiscal quarters commencing with the quarter ended March 31, 2018 and ending with the quarter ending June 30, 2019, or the waiver period, any default resulting from our non-compliance with the leverage and fixed charge coverage ratio covenants contained in our credit agreement. In connection with this waiver, we agreed that, if at any time during the waiver period we are in non-compliance with either the leverage covenant or the fixed charge coverage ratio covenant (before giving effect to the waiver), the maximum amount available to be drawn under our credit facility (giving effect to applicable borrowing base conditions) less the aggregate outstanding extensions of credit under the credit facility will not be less than approximately $33,333 . We have also agreed not to declare or pay any dividends, purchase, redeem, retire, defease or otherwise acquire for value any shares of our capital stock, return any capital to our stockholders or distribute any obligations, securities or other assets to our stockholders if we are not in compliance with the leverage covenant or the fixed charge coverage ratio covenant (before giving effect to the waiver) at the time of such action.
 

13

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


At June 30, 2018 , we had eight irrevocable standby letters of credit outstanding, totaling $25,424 . In June 2018, we increased, from $17,800 to $22,700 , one of these letters of credit which secures our workers' compensation insurance program, and this letter of credit is currently collateralized by approximately $17,910 of cash equivalents and $6,124 of debt and equity investments. This letter of credit currently matures in June 2019, at which time we expect to renew it for an amount then required for our workers' compensation insurance program. At June 30, 2018, the cash equivalents collateralizing this letter of credit, including accumulated interest, were classified as short term restricted cash in our condensed consolidated balance sheets, and the debt and equity investments collateralizing this letter of credit are classified as short term investments in our condensed consolidated balance sheets. The remaining seven irrevocable standby letters of credit outstanding at June 30, 2018 , totaling $2,724 , secure certain of our other obligations. These letters of credit currently mature between September 2018 and May 2019 and are required to be renewed annually. Our obligations under these seven letters of credit are issued under our credit facility. As of June 30, 2018 , we had these seven letters of credit, totaling $2,724 , issued and outstanding under our credit facility, and, after giving effect to the waiver described above, $60,934 available for borrowing under our credit facility.

At June 30, 2018 , one of our senior living communities was encumbered by a mortgage. This mortgage contains standard mortgage covenants. We recorded a mortgage discount in connection with the assumption of this mortgage as part of our acquisition of the community secured by this mortgage in order to record this mortgage at its estimated fair value. We amortize this mortgage discount as an increase in interest expense until the maturity of this mortgage. This mortgage requires payments of principal and interest monthly until maturity. The following table is a summary of this mortgage as of June 30, 2018:
Balance as of
 
Contractual Stated
 
Effective
 
 
 
Monthly
 
 
June 30, 2018
 
Interest Rate
 
Interest Rate
 
Maturity Date
 
Payment
 
Lender Type
 
 
 
 
 
 
 
 
 
 
 
$
8,324
 
(1)  
6.20
%
 
6.70
%
 
September 2032
 
$
72
 
 
Federal Home Loan Mortgage Corporation

(1)
Contractual principal payment excluding unamortized discount and debt issuance costs of $292 .

We incurred mortgage interest expense, net of discount amortization, of $334 and $778 for the three months ended June 30, 2018 and 2017 , respectively, and $772 and $1,571 for the six months ended June 30, 2018 and 2017 , respectively. This mortgage requires monthly payments into escrows for taxes, insurance and property replacement funds; certain withdrawals from these escrows require Federal Home Loan Mortgage Corporation approval.
In February 2018, in connection with the sale of one of our senior living communities to SNH, SNH assumed a Federal National Mortgage Association mortgage that had a principal balance of $16,776 and required interest at the contracted rate of 6.64% per annum. In connection with SNH's assumption of this debt, we recorded a gain of $543 , which amount is included in gain on sale of senior living communities in our condensed consolidated statements of operations.

In June 2018, in connection with the sale of two of our senior living communities to SNH, SNH assumed a commercial lender mortgage that had a principal balance of $16,588 and required interest at the contracted rate of 5.75% per annum. In connection with SNH's assumption of this debt, we recorded a gain of $638 , which amount is included in gain on sale of senior living communities in our condensed consolidated statements of operations.

As of June 30, 2018 , we believe we were in compliance with all applicable covenants under our mortgage debt and, giving effect to the waiver discussed above, our credit facility.
 
Note 9. 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 June 30, 2018 and 2017 , we leased 184 and 185 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 June 30, 2018 and 2017 was $207,007  and $ 205,370 , 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 $51,391 and $50,792 for the three months ended June 30, 2018 and 2017 , respectively, and $102,913 and $101,302 for the six months ended June 30, 2018 and 2017 , respectively, which amounts included estimated percentage rent of $1,290 and $1,391 for the three months ended June 30, 2018 and 2017 , respectively, and $2,681 and $2,835 for the six months ended June 30, 2018 and 2017 , respectively. As of June 30, 2018 and December 31, 2017 , we had outstanding rent due and payable to

14

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


SNH of $18,488 and $18,555 , respectively, which amounts are included in due to related persons in our condensed consolidated balance sheets.

Pursuant to the terms of our leases with SNH, for the six months ended June 30, 2018 and 2017 , we sold to SNH $8,529 and $19,308 , respectively, of improvements to communities leased from SNH. As a result, the annual rent payable by us to SNH increased by approximately $680 and $1,547 as of June 30, 2018 and 2017, respectively. As of June 30, 2018 , our property and equipment included $2,561 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 June 2016, we entered an agreement with SNH pursuant to which, 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 June 30, 2018 and December 31, 2017 , the short term portion of the deferred gain in the amount of $6,609 is presented in other current liabilities in our condensed consolidated balance sheets, and the long term portion is presented separately in our condensed consolidated balance sheets.

In June 2018, we and SNH sold to a third party one SNF, which was previously leased to us, located in California with 97 living units for a sales price of approximately $6,500 , excluding closing costs. We recorded a loss of $40 for the three months ended June 30, 2018 as a result of this sale which loss is included in gain on sale of senior living communities in our condensed consolidated statements of operations. This community, while leased by us, generated a loss from operations before income taxes of $238 and $59 for the three months ended June 30, 2018 and 2017, respectively, and $259 and $102 for the six months ended June 30, 2018 and 2017 , respectively, excluding the loss on sale of the community. Pursuant to the terms of our lease with SNH, as a result of this sale, our annual rent payable to SNH decreased by 10% of the net proceeds that SNH received from this sale, in accordance with the terms of the applicable lease.

Also in June 2018, SNH acquired an additional living unit at a senior living community we lease from SNH located in Florida which was added to the lease for that senior living community, and, as a result of this acquisition, our annual rent payable to SNH increased by $14 in accordance with the terms of such lease.

Senior Living Communities Managed for the Account of SNH and its Related Entities . As of June 30, 2018 and 2017 , we managed 75 and 68 senior living communities, respectively, for the account of SNH. We earned base management fees of $3,465 and $3,276 from the senior living communities we managed for the account of SNH for the three months ended June 30, 2018 and 2017 , respectively, and $6,888 and $6,509 for the six months ended June 30, 2018 and 2017, respectively. In addition, we earned fees for our management of capital expenditure projects at the communities we managed for the account of SNH of $243 and $236 for the three months ended June 30, 2018 and 2017 , respectively, and $371 and $500 for the six months ended June 30, 2018 and 2017 , respectively. These amounts are included in management fee revenue in our condensed consolidated statements of operations.

In November 2017, we entered a transaction agreement with SNH, or the transaction agreement, pursuant to which we agreed to sell six senior living communities to SNH and, as we sold these communities, enter new management agreements with SNH for us to manage such communities for SNH, with the new management agreements being combined pursuant to two new pooling agreements between us and SNH.

In December 2017, January 2018, February 2018 and June 2018 we sold to, and began managing for the account of, SNH these  six  senior living communities and, concurrently with those sales, we and SNH entered management agreements for each of these senior living communities and  two  new pooling agreements. Pursuant to the terms of the management and pooling agreements for five of the senior living communities subject to the transaction agreement, 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 other senior living community subject to the transaction agreement is subject to an ongoing construction, expansion and development project. The terms of the management and pooling agreements for this community are substantially

15

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


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 SNH's borrowings under its revolving credit facility plus 2% per annum. This determination of annual minimum return for this senior living community will apply until the earlier of 12 months after a certificate of occupancy is issued with respect to the project or January 2021; 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 for these 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, or ASC 360, these six senior living communities met the conditions to be classified as held for sale in November 2017. These six senior living communities, while owned by us, generated income (loss) from operations before income taxes of $(52) and $693 for the three months ended June 30, 2018 and 2017 , respectively, and $151 and $ 1,269 for the six months ended June 30, 2018 and 2017 , respectively, excluding the gain on sale of the communities. These amounts are included in our condensed consolidated statements of operations.

In December 2017, we sold two of the six senior living communities described above for an aggregate sales price of $39,150 . These two senior living communities had an aggregate carrying value of $ 29,444 , net of mortgage debt and discount of $2,303 . In accordance with ASC 360, these two transactions qualify as real estate sales and the gains on these transactions were recognized immediately in accordance with the full accrual method as a result of our lack of continuing involvement in the ownership of the senior living communities after completing these sales. The carrying value of these senior living communities was not included in our condensed consolidated balance sheet as of December 31, 2017.

In January and February 2018, we sold two additional senior living communities described above for an aggregate sales price of $41,917 . These two senior living communities had an aggregate carrying value of $19,425 , net of mortgage debt and premiums of $17,356 , of which the principal amount of $16,776 was assumed by SNH. These transactions are accounted for in accordance with ASU No. 2014-09, in particular ASC Topic 610 and related ASUs, effective with the adoption of these new ASUs on January 1, 2018. Under these new ASUs, the income recognition for real estate sales is largely based on the transfer of control rather than continuing involvement in the ownership of the real estate. We recorded a gain of $5,684 for the three months ended March 31, 2018 as a result of the sale of these two senior living communities, which gain is presented separately in our condensed consolidated statements of operations.

In June 2018, we sold the remaining two senior living communities described above for an aggregate sales price of  $23,300 . These  two  senior living communities had an aggregate carrying value of $5,163 , net of mortgage debt and premiums of $17,226 , of which the principal amount of $16,588 was assumed by SNH. These transactions are accounted for in accordance with ASU No. 2014-09, in particular ASC Topic 610 and related ASUs, effective with our adoption of these new ASUs on January 1, 2018. We recorded a gain of $1,549 for the three months ended June 30, 2018 as a result of the sale of these two senior living communities, which gain is included in gain on sale of senior living communities in our condensed consolidated statements of operations.

In June 2018, we began managing for SNH a senior living community located in California with 98 living units pursuant to a management agreement and our existing Pooling Agreement No. 12 with SNH, which we and SNH concurrently amended and restated to include that senior living community. Pursuant to the terms of the management agreement for this senior living community and our Amended and Restated Pooling Agreement No. 12 with SNH, we will earn a management fee equal to 5% of the gross revenues realized at this community plus reimbursement for our direct costs and expenses related to our operation of this community, as well as an annual incentive fee equal to 20% of the annual net operating income of this community remaining after SNH realizes an annual minimum return of $1,000 plus 7% of its invested capital for this community in excess of $500 made after the date we began managing this community, and that SNH’s annual minimum return for this community will not be used in determining whether or not there is a priority return shortfall, as defined, under the Amended and Restated Pooling Agreement No. 12 until 2019.

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

16

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


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 $1,660 and $1,886 for the three months ended June 30, 2018 and 2017 , respectively, and $3,359 and $3,868 for the six months ended June 30, 2018 and 2017 , 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 statements of operations.

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. As of June 30, 2018, D&R Yonkers LLC was owned by our Executive Vice President, Chief Financial Officer and Treasurer and by SNH’s former 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 $69 and $42 for the three months ended June 30, 2018 and 2017 , respectively, and $140 and $108 for the six months ended June 30, 2018 and 2017 , respectively, under this management arrangement with D&R Yonkers LLC, which amounts are included in management fee revenue in our condensed consolidated statements of operations.

Note 10. 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 $2,257 and $2,286 for the three months ended June 30, 2018 and 2017 , respectively, and $4,514 and $4,553 for the six months ended June 30, 2018 and 2017 , respectively. In addition, we are responsible for our share of RMR LLC’s costs for providing our internal audit function. The amounts recognized as expense for internal audit costs were $54 and $67 for the three months ended June 30, 2018 and 2017 , respectively, and $123 and $134 for the six months ended June 30, 2018 and 2017 , respectively, which amounts are included in general and administrative expenses in our condensed consolidated statements of operations.

Note 11. 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 or its subsidiaries provide 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 June 30, 2018 , 4,235,000 of our common shares, or approximately 8.4% 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 and Adam D. Portnoy, one of our Managing Directors, also serves as a managing trustee of SNH. See Notes 9 and 10 for more information regarding our relationships, agreements and transactions with SNH and certain parties related to it and us.

RMR LLC. We have an agreement with RMR LLC to provide management services to us. See Note 10 for more information regarding our management agreement with RMR LLC.

ABP Trust. A subsidiary of ABP Trust is our largest stockholder, owning, as of June 30, 2018 , 17,999,999 of our common shares, or approximately 35.6% of our outstanding common shares. Adam D. Portnoy, one of our Managing Directors, is the sole trustee, an officer and the controlling shareholder of ABP Trust, which is the controlling shareholder of The RMR Group Inc., or RMR Inc.; RMR Inc. is the managing member of RMR LLC. 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 $415 and $423 for the three months ended June 30, 2018 and 2017 , respectively, and $879 and $796 for the six months ended June 30, 2018 and 2017 , 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, as of June 30, 2018, aggregate annual premiums, including taxes and fees, of approximately  $2,944  in connection with this insurance program for the policy year ending June 30, 2019, which amount may be adjusted from time to time as we acquire and dispose of properties that are included in this insurance program.

17

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



As of June 30, 2018 and December 31, 2017, our investment in AIC had a carrying value of $8,158 and $8,185 , 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 that are owned by AIC related to our investment in AIC.

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

Note 12.  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 Topic 450. Under ASC Topic 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. A minimum or best estimate amount may be increased or decreased when events result in a changed expectation.

As previously disclosed, 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 issues 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. We submitted supplemental disclosures to the OIG in December 2017 and March 2018. At December 31, 2017, we accrued an estimated revenue reserve of $888 for historical Medicare payments we received and expect to repay as a result of these deficiencies, which amount we reduced to $759 in March 2018. The entire $759 reserve remained accrued and unpaid at June 30, 2018. In addition, at December 31, 2017, we recorded an aggregate $ 658 expense for additional costs we incurred as a result of this matter, including estimated OIG imposed penalties, which amount we reduced to $594 in March 2018, and thereafter recorded an additional expense of $55 and $20 for further costs related to this matter for the three months ended March 31, 2018 and June 30, 2018 , respectively. Our total expense for costs incurred related to this matter at June 30, 2018 was $669 , $636 of which remained accrued and unpaid at June 30, 2018 .

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.
    
Despite this trend, future economic downturns, softness in the U.S. housing market, higher levels of unemployment among our residents' and 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, although there are indications that the rate of newly started development has recently declined. The development activity has increased competitive pressures on us, particularly in certain geographic markets where we own, lease and manage senior living communities, and we expect these competitive challenges to continue for at least the next few years. 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 12 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.


19

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



RESULTS OF OPERATIONS

We have two operating segments: (i) senior living community and (ii) rehabilitation and wellness. In the senior living community 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 therapy services, including physical, occupational, speech and other specialized therapy 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, professional and general liability and certain automobile insurance programs.
In November 2017, we entered the transaction agreement with SNH pursuant to which we agreed to sell six senior living communities to SNH for $104.4 million, including SNH’s assumption of approximately $33.5 million of mortgage debt principal secured by certain of these senior living communities, and excluding closing costs. In December 2017, January 2018, February 2018 and June 2018, we sold to, and began managing for the account of, SNH two of these senior living communities located in Alabama and Indiana, one of these senior living communities located in Tennessee, one of these senior living communities located in Arizona and two of these senior living communities located in Tennessee, respectively, and concurrently with those sales, we and SNH entered management agreements for each of these senior living communities and two new pooling arrangements with SNH. For more information regarding our leases and management agreements and other transactions with SNH, see Note 9 to our condensed consolidated financial statements included in Part I, Item 1 of this Quarterly Report.

20

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



Key Statistical Data For the Three Months Ended June 30, 2018 and 2017 :
The following tables present a summary of our operations for the three months ended June 30, 2018 and 2017 :
 
 
Three Months Ended June 30,
 
(dollars in thousands, except average monthly rate)
 
2018
 
2017
 
Change
 
%/bps
Change
 
Senior living revenue
 
$
270,882

 
$
280,852

 
$
(9,970
)
 
(3.5
)%
 
Management fee revenue
 
3,777

 
3,554

 
223

 
6.3
 %
 
Reimbursed costs incurred on behalf of managed communities
 
68,439

 
65,619

 
2,820

 
4.3
 %
 
Total revenues
 
343,098

 
350,025

 
(6,927
)
 
(2.0
)%
 
Senior living wages and benefits
 
(140,713
)
 
(136,610
)
 
4,103

 
3.0
 %
 
Other senior living operating expenses
 
(75,764
)
 
(74,573
)
 
1,191

 
1.6
 %
 
Costs incurred on behalf of managed communities
 
(68,439
)
 
(65,619
)
 
2,820

 
4.3
 %
 
Rent expense
 
(52,113
)
 
(51,514
)
 
599

 
1.2
 %
 
General and administrative expenses
 
(18,477
)
 
(19,345
)
 
(868
)
 
(4.5
)%
 
Depreciation and amortization expense
 
(8,977
)
 
(9,801
)
 
(824
)
 
(8.4
)%
 
Gain on sale of senior living communities
 
1,509

 
—

 
1,509

 
100.0
 %
 
Long lived asset impairment
 
(365
)
 
(176
)
 
189

 
107.4
 %
 
Interest, dividend and other income
 
218

 
208

 
10

 
4.8
 %
 
Interest and other expense
 
(604
)
 
(1,083
)
 
(479
)
 
(44.2
)%
 
Unrealized gain on equity investments
 
44

 
—

 
44

 
100.0
 %
 
Realized (loss) gain on sale of debt and equity investment, net of tax
 
(42
)
 
242

 
(284
)
 
(117.4
)%
 
(Provision) benefit for income taxes
 
(281
)
 
1,366

 
1,647

 
120.6
 %
 
Equity in earnings of an investee, net of tax
 
12

 
374

 
(362
)
 
(96.8
)%
 
Net loss
 
$
(20,894
)
 
$
(6,506
)
 
$
(14,388
)
 
(221.1
)%
 
Total number of communities (end of period):
 
 
 
 
 
 
 
 
 
Owned and leased communities
 
208

 
215

 
(7
)
 
(3.3
)%
 
Managed communities
 
75

 
68

 
7

 
10.3
 %
 
Number of total communities
 
283

 
283

 
—

 
—
 %
 
Total number of living units (end of period):
 
 
 
 
 
 
 
 
 
Owned and leased living units (1)
 
22,290

 
23,014

 
(724
)
 
(3.1
)%
 
Managed living units (1)
 
9,510

 
8,806

 
704

 
8.0
 %
 
Number of total living units (1)
 
31,800

 
31,820

 
(20
)
 
(0.1
)%
 
Owned and leased communities:
 
 
 
 
 
 
 
 
 
Occupancy % (1)
 
81.4
%
 
83.1
%
 
n/a 

 
(170
)
bps
Average monthly rate (2)
 
$
4,709

 
$
4,715

 
$
(6
)
 
(0.1
)%
 
Percent of senior living revenue from Medicaid
 
12.2
%
 
11.6
%
 
n/a 

 
60

bps
Percent of senior living revenue from Medicare
 
10.6
%
 
11.4
%
 
n/a 

 
(80
)
bps
Percent of senior living revenue from private and other sources
 
77.2
%
 
77.0
%
 
n/a 

 
20

bps
 
 
(1) Includes only living units categorized as in service. As a result, the number of living units may change from period to period for reasons other than the acquisition or disposition of senior living communities.
(2) 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.

21

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



Comparable communities (senior living communities that we have operated continuously since April 1, 2017):
 
 
Three Months Ended June 30,
 
(dollars in thousands, except average monthly rate)
 
2018
 
2017
 
Change
 
%/bps
Change
 
Senior living revenue
 
$
268,851

 
$
273,594

 
$
(4,743
)
 
(1.7
)%
 
Management fee revenue
 
3,316

 
3,318

 
(2
)
 
(0.1
)%
 
Senior living wages and benefits
 
(139,478
)
 
(133,532
)
 
5,946

 
4.5
 %
 
Other senior living operating expenses
 
(74,866
)
 
(72,691
)
 
2,175

 
3.0
 %
 
Total number of communities (end of period):
 
 
 
 
 
 
 
 
 
Owned and leased communities
 
208

 
208

 
—

 
—
 %
 
Managed communities
 
68

 
68

 
—

 
—
 %
 
Number of total communities
 
276

 
276

 
—

 
—
 %
 
Total number of living units (end of period):
 
 
 
 
 
 
 
 
 
Owned and leased living units (1)
 
22,290

 
22,322

 
(32
)
 
(0.1
)%
 
Managed living units (1)
 
8,817

 
8,806

 
11

 
0.1
 %
 
Number of total living units (1)
 
31,107

 
31,128

 
(21
)
 
(0.1
)%
 
Owned and leased communities (1) :
 
 
 
 
 
 
 
 
 
Occupancy % (1)
 
81.4
%
 
82.9
%
 
n/a 

 
(150
)
bps
Average monthly rate (2)
 
$
4,719

 
$
4,744

 
$
(25
)
 
(0.5
)%
 
Percent of senior living revenue from Medicaid
 
12.2
%
 
11.6
%
 
n/a 

 
60

bps
Percent of senior living revenue from Medicare
 
11.0
%
 
11.4
%
 
n/a 

 
(40
)
bps
Percent of senior living revenue from private and other sources
 
76.8
%
 
77.0
%
 
n/a 

 
(20
)
bps
 
 

(1) Includes only living units categorized as in service. As a result, the number of living units may change from period to period for reasons other than the acquisition or disposition of senior living communities.
(2) 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 June 30, 2018 Compared to Three Months Ended June 30, 2017
The following is a discussion of our operating results for the three months ended June 30, 2018 compared to the three months ended June 30, 2017 .

Senior living revenue. Senior living revenue for the three months ended June 30, 2018 decreased approximately 3.5% compared to the same period in 2017 primarily due to the sale of two senior living communities during the fourth quarter of 2017 and two senior living communities during the first quarter of 2018 and a decrease in occupancy. The 1.7% decrease in senior living revenue at the communities that we have operated continuously since April 1, 2017 was primarily due to a decrease in occupancy.
 
Management fee revenue. Management fee revenue increased by 6.3% for the three months ended June 30, 2018 compared to the same period in 2017 primarily due to an increase in the number of managed communities from 68 to 75 .

Reimbursed costs incurred on behalf of managed communities. Reimbursed costs incurred on behalf of managed communities increased by 4.3% for the three months ended June 30, 2018 compared to the same period in 2017 primarily due to an increase in the number of managed communities from 68 to 75 .
 
Senior living wages and benefits. Senior living wages and benefits increased by 3.0% for the three months ended June 30, 2018 compared to the same period in 2017 primarily due to an increase in employee health insurance expense, overtime expenses and annual wage increases, partially offset by the sale of two senior living communities during the fourth quarter of 2017 and two senior living communities during the first quarter of 2018. The 4.5% increase in senior living wages and benefits at the communities that we have operated continuously since April 1, 2017 was primarily due to an increase in employee health insurance expense, overtime expenses and annual wage increases.
 
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 1.6% for the three months ended June 30, 2018 compared to the same period in 2017 primarily due to an increase in repairs and maintenance, housekeeping and certain consulting and other purchased services expenses, partially offset by the sale of two senior living communities during the fourth quarter of 2017 and two senior living communities during the first quarter of 2018. The 3.0% increase in other senior

22

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



living operating expenses at the communities that we have operated continuously since April 1, 2017 was primarily due to an increase in repairs and maintenance, housekeeping and certain consulting and other purchased services expenses.

Rent expense. Rent expense increased by 1.2% for the three months ended June 30, 2018 compared to the same period in 2017 primarily due to additional rent related to senior living community capital improvements we sold to SNH since January 1, 2017 pursuant to our leases with SNH. 

General and administrative expenses. General and administrative expenses decreased by 4.5% for the three months ended June 30, 2018 compared to the same period in 2017 primarily due to a decrease in marketing expenses, professional fees and travel related costs during the second quarter of 2018.
 
Depreciation and amortization expense. Depreciation and amortization expense decreased by 8.4% for the three months ended June 30, 2018 compared to the same period in 2017 primarily due to the sale of two senior living communities during the fourth quarter of 2017 and two senior living communities during the first quarter of 2018, partially offset by capital expenditures we made at our owned and leased communities (net of our sales of capital improvements to SNH at our leased communities).

Gain on sale of senior living communities. A gain on sale of senior living communities of $1.5 million was recorded primarily in connection with our sale of two senior living communities to SNH in June 2018 pursuant to the transaction agreement.

Long lived asset impairment. For the three months ended June 30, 2018 and 2017 , we recorded non-cash charges for long lived asset impairment of $0.4 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 increased by 4.8% for the three months ended June 30, 2018 compared to the same period in 2017 primarily due to higher investable cash and cash equivalents balances.
 
Interest and other expense. Interest and other expense decreased by 44.2% for the three months ended June 30, 2018 compared to the same period in 2017 primarily due to the prepayment of one mortgage note in September 2017 and another mortgage note in December 2017 and SNH's assumption of one mortgage note in February 2018 in connection with our sale of one senior living community to SNH pursuant to the transaction agreement.
 
Unrealized gain on equity investments. Unrealized gain on equity investments represents our unrealized gain on our equity investments held at June 30, 2018 in accordance with new GAAP standards effective January 1, 2018.

Realized (loss) gain on sale of debt and equity investments, net of tax. Realized (loss) gain on sale of debt and equity investments represents our realized (loss) gain on investments, net of applicable taxes. 

(Provision) benefit for income taxes. For the three months ended June 30, 2018 and 2017 , we recognized a provision for income taxes of $0.3 million and a benefit of $1.4 million , respectively. The provision for income taxes for the three months ended June 30, 2018 is related to our state income taxes. The benefit for income taxes for the three months ended June 30, 2017 is primarily due to our monetization of alternative minimum tax credits during the second quarter of 2017 .
 
Equity in earnings of an investee, net of tax. Equity in earnings of an investee represents our proportionate share of earnings from AIC.


23

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



Key Statistical Data For the Six Months Ended June 30, 2018 and 2017 :
The following tables present a summary of our operations for the six months ended June 30, 2018 and 2017 :
 
 
Six Months Ended June 30,
 
(dollars in thousands, except average monthly rate)
 
2018
 
2017
 
Change
 
%/bps
Change
 
Senior living revenue
 
$
545,407

 
$
563,284

 
$
(17,877
)
 
(3.2
)%
 
Management fee revenue
 
7,399

 
7,117

 
282

 
4.0
 %
 
Reimbursed costs incurred on behalf of managed communities
 
135,809

 
130,313

 
5,496

 
4.2
 %
 
Total revenues
 
688,615

 
700,714

 
(12,099
)
 
(1.7
)%
 
Senior living wages and benefits
 
(276,882
)
 
(274,941
)
 
1,941

 
0.7
 %
 
Other senior living operating expenses
 
(149,541
)
 
(147,842
)
 
1,699

 
1.1
 %
 
Costs incurred on behalf of managed communities
 
(135,809
)
 
(130,313
)
 
5,496

 
4.2
 %
 
Rent expense
 
(104,358
)
 
(102,745
)
 
1,613

 
1.6
 %
 
General and administrative expenses
 
(38,440
)
 
(38,882
)
 
(442
)
 
(1.1
)%
 
Depreciation and amortization expense
 
(17,837
)
 
(19,287
)
 
(1,450
)
 
(7.5
)%
 
Gain on sale of senior living communities
 
7,193

 
—

 
7,193

 
100.0
 %
 
Long lived asset impairment
 
(365
)
 
(386
)
 
(21
)
 
(5.4
)%
 
Interest, dividend and other income
 
385

 
392

 
(7
)
 
(1.8
)%
 
Interest and other expense
 
(1,307
)
 
(2,061
)
 
(754
)
 
(36.6
)%
 
Unrealized loss on equity investments
 
(6
)
 
—

 
(6
)
 
(100.0
)%
 
Realized (loss) gain on sale of debt and equity investment, net of tax
 
(10
)
 
281

 
(291
)
 
(103.6
)%
 
(Provision) benefit for income taxes
 
(537
)
 
1,275

 
1,812

 
142.1
 %
 
Equity in earnings of an investee, net of tax
 
56

 
502

 
(446
)
 
(88.8
)%
 
Net loss
 
$
(28,843
)
 
$
(13,293
)
 
$
(15,550
)
 
(117.0
)%
 
Total number of communities (end of period):
 
 
 
 
 
 
 
 
 
Owned and leased communities
 
208

 
215

 
(7
)
 
(3.3
)%
 
Managed communities
 
75

 
68

 
7

 
10.3
 %
 
Number of total communities
 
283

 
283

 
—

 
—
 %
 
Total number of living units (end of period):
 
 
 
 
 
 
 
 
 
Owned and leased living units (1)
 
22,290

 
23,014

 
(724
)
 
(3.1
)%
 
Managed living units (1)
 
9,510

 
8,806

 
704

 
8.0
 %
 
Number of total living units (1)
 
31,800

 
31,820

 
(20
)
 
(0.1
)%
 
Owned and leased communities:
 
 
 
 
 
 
 
 
 
Occupancy % (1)
 
81.5
%
 
83.3
%
 
n/a 

 
(180
)
bps
Average monthly rate (2)
 
$
4,752

 
$
4,735

 
$
17

 
0.4
 %
 
Percent of senior living revenue from Medicaid
 
12.2
%
 
11.4
%
 
n/a 

 
80

bps
Percent of senior living revenue from Medicare
 
11.0
%
 
11.7
%
 
n/a 

 
(70
)
bps
Percent of senior living revenue from private and other sources
 
76.8
%
 
76.9
%
 
n/a 

 
(10
)
bps
 
 
(1) Includes only living units categorized as in service. As a result, the number of living units may change from period to period for reasons other than the acquisition or disposition of senior living communities.
(2) 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.

24

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



Comparable communities (senior living communities that we have operated continuously since January 1, 2017):
 
 
Six Months Ended June 30,
 
(dollars in thousands, except average monthly rate)
 
2018
 
2017
 
Change
 
%/bps
Change
 
Senior living revenue
 
$
539,866

 
$
548,719

 
$
(8,853
)
 
(1.6
)%
 
Management fee revenue
 
6,626

 
6,617

 
9

 
0.1
 %
 
Senior living wages and benefits
 
(273,927
)
 
(268,743
)
 
5,184

 
1.9
 %
 
Other senior living operating expenses
 
(147,450
)
 
(143,988
)
 
3,462

 
2.4
 %
 
Total number of communities (end of period):
 
 
 
 
 
 
 
 
 
Owned and leased communities
 
208

 
208

 
—

 
—
 %
 
Managed communities
 
68

 
68

 
—

 
—
 %
 
Number of total communities
 
276

 
276

 
—

 
—
 %
 
Total number of living units (end of period):
 
 
 
 
 
 
 
 
 
Owned and leased living units (1)
 
22,290

 
22,322

 
(32
)
 
(0.1
)%
 
Managed living units (1)
 
8,817

 
8,806

 
11

 
0.1
 %
 
Number of total living units (1)
 
31,107

 
31,128

 
(21
)
 
(0.1
)%
 
Owned and leased communities (1) :
 
 
 
 
 
 
 
 
 
Occupancy % (1)
 
81.5
%
 
83.1
%
 
n/a 

 
(160
)
bps
Average monthly rate (2)
 
$
4,759

 
$
4,764

 
$
(5
)
 
(0.1
)%
 
Percent of senior living revenue from Medicaid
 
11.9
%
 
11.3
%
 
n/a 

 
60

bps
Percent of senior living revenue from Medicare
 
11.0
%
 
11.7
%
 
n/a 

 
(70
)
bps
Percent of senior living revenue from private and other sources
 
77.1
%
 
77.0
%
 
n/a 

 
10

bps
 
 

(1) Includes only living units categorized as in service. As a result, the number of living units may change from period to period for reasons other than the acquisition or disposition of senior living communities.
(2) 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.
Six Months Ended June 30, 2018 Compared to Six Months Ended June 30, 2017
The following is a discussion of our operating results for the six months ended June 30, 2018 compared to the six months ended June 30, 2017 .

Senior living revenue. Senior living revenue for the six months ended June 30, 2018 decreased approximately 3.2% compared to the same period in 2017 primarily due to the sale of two senior living communities during the fourth quarter of 2017 and two senior living communities during the first quarter of 2018 and a decrease in occupancy. The 1.6% decrease in senior living revenue at the communities that we have operated continuously since January 1, 2017 was primarily due to a decrease in occupancy.
 
Management fee revenue. Management fee revenue increased by 4.0% for the six months ended June 30, 2018 compared to the same period in 2017 primarily due to an increase in the number of managed communities from 68 to 75 .

Reimbursed costs incurred on behalf of managed communities. Reimbursed costs incurred on behalf of managed communities increased by 4.2% for the six months ended June 30, 2018 compared to the same period in 2017 primarily due to an increase in the number of managed communities from 68 to 75 .
 
Senior living wages and benefits. Senior living wages and benefits increased by 0.7% for the six months ended June 30, 2018 compared to the same period in 2017 primarily due to an increase in employee health insurance expense and annual wage increases, partially offset by the sale of two senior living communities during the fourth quarter of 2017 and two senior living communities during the first quarter of 2018. The 1.9% increase in senior living wages and benefits at the communities that we have operated continuously since January 1, 2017 was primarily due to an increase in employee health insurance expense and annual wage increases.
 
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 1.1% for the six months ended June 30, 2018 compared to the same period in 2017 primarily due to an increase in repairs and maintenance, housekeeping and certain consulting and other purchased services expenses, partially offset by the sale of two senior living communities during the fourth quarter of 2017, two senior living communities during the first quarter of 2018 and a decrease in professional and general liability insurance expenses. The 2.4% increase in other senior living operating expenses at the communities that we

25

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



have operated continuously since January 1, 2017 was primarily due to an increase in repairs and maintenance, housekeeping and certain consulting and other purchased services expenses, partially offset by a decrease in professional and general liability insurance expenses.

Rent expense. Rent expense increased by 1.6% for the six months ended June 30, 2018 compared to the same period in 2017 primarily due to additional rent related to senior living community capital improvements we sold to SNH since January 1, 2017 pursuant to our leases with SNH. 

General and administrative expenses. General and administrative expenses decreased by 1.1% for the six months ended June 30, 2018 compared to the same period in 2017 primarily due to a decrease in marketing expenses, professional fees and related costs during the second quarter of 2018.
 
Depreciation and amortization expense. Depreciation and amortization expense decreased by 7.5% for the six months ended June 30, 2018 compared to the same period in 2017 primarily due to the sale of two senior living communities during the fourth quarter of 2017 and two senior living communities during the first quarter of 2018, partially offset by capital expenditures we made at our owned and leased communities (net of our sales of capital improvements to SNH at our leased communities).

Gain on sale of senior living communities. A gain on sale of senior living communities of $7.2 million was recorded primarily in connection with our sale of four senior living communities to SNH in January, February and June 2018 pursuant to the transaction agreement.

Long lived asset impairment. For each of the six months ended June 30, 2018 and 2017, we recorded non-cash charges for long lived asset impairment of $0.4 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 1.8% for the six months ended June 30, 2018 compared to the same period in 2017 primarily due to lower investable cash and cash equivalents balances.
 
Interest and other expense. Interest and other expense decreased by 36.6% for the six months ended June 30, 2018 compared to the same period in 2017 primarily due to the prepayment of one mortgage note in September 2017 and another mortgage note in December 2017 and SNH's assumption of one mortgage note in February 2018 in connection with our sale of one senior living community to SNH pursuant to the transaction agreement.
 
Unrealized loss on equity investments. Unrealized loss on equity investments represents our unrealized losses on our equity investments held at June 30, 2018 in accordance with new GAAP standards effective January 1, 2018.

Realized (loss) gain on sale of debt and equity investments, net of tax. Realized (loss) gain on sale of debt and equity investments represents our realized (loss) gain on investments, net of applicable taxes. 

(Provision) benefit for income taxes. For the six months ended June 30, 2018 and 2017 , we recognized a provision for income taxes of $0.5 million and a benefit of $1.3 million , respectively. The provision for income taxes for the six months ended June 30, 2018 is related to our state income taxes. The benefit for income taxes for the six months ended June 30, 2017 is primarily due to our monetization of alternative minimum tax credits during the second quarter of 2017.
 
Equity in earnings of an investee, net of tax. Equity in earnings of an investee represents our proportionate share of earnings from AIC.

LIQUIDITY AND CAPITAL RESOURCES

As of June 30, 2018 , we had $22.1 million of unrestricted cash and cash equivalents and $60.9 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.

26

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



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, our operating expenses increase 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 seeking to reduce our costs, incurring debt under or in addition to our credit facility, engaging in sale and leaseback or manageback transactions, mortgage financing our owned senior living communities and issuing other debt or equity securities. Although we believe these alternatives will be available to us, we cannot be sure that they will be.

Assets and Liabilities

At June 30, 2018 , we had $22.1 million of unrestricted cash and cash equivalents compared to $26.3 million at December 31, 2017 . Our total current and long term assets were $124.6 million and $274.8 million , respectively, at June 30, 2018 compared to $197.2 million and $278.7 million , respectively, at December 31, 2017 .  Our total current and long term liabilities were $173.1 million and $110.0 million , respectively, at June 30, 2018 compared to $218.6 million and $112.3 million , respectively, at December 31, 2017 . The decrease in total current assets primarily relates to a decrease in assets held for sale as a result of the sale of four senior living communities to SNH during the first half of 2018, partially offset by an increase in due from related persons because of timing differences in when payments were received. The decrease in total current liabilities primarily relates to a decrease in liabilities held for sale as a result of SNH's assumption of mortgage debt in connection with the sale of three senior living communities to SNH during the first half of 2018 and a decrease in accounts payable and accrued expenses due to timing differences in when payments were made, partially offset by an increase in accrued compensation and benefits due to timing differences in when the pay dates prior to the end of each period occurred.

We had cash flows used in operating activities of $23.3 million for the six months ended June 30, 2018 compared to cash flows provided by operating activities of $11.6 million for the same period in 2017 . The increase in cash flows used in operating activities for the six months ended June 30, 2018 compared to the same period in 2017 relates to the timing of payments made by us for payables and other accrued expenses, amounts received by us from related persons and lower operating income before non-cash items during the six months ended June 30, 2018 compared to the same period in 2017.

We had cash flows provided by investing activities of $19.0 million for the six months ended June 30, 2018 compared to cash flows used in investing activities of $15.3 million for the same period in 2017 . The increase in cash flows provided by investing activities was primarily due to the $31.9 million of net proceeds received from the sale of four senior living communities to SNH during the first half of 2018. Acquisitions of property and equipment, net of sales of qualified improvements we made to SNH pursuant to our leases with SNH, were $15.2 million and $18.7 million for the six months ended June 30, 2018 and 2017 , respectively. 

We had cash flows used in financing activities of $0.3 million and $2.6 million for the six months ended June 30, 2018 and 2017 , respectively. The decrease in cash flows used in financing activities for the six months ended June 30, 2018 was primarily due to fees paid in 2017 in connection with the closing of our credit facility.

Our Leases and Management Agreements with SNH
 
As of June 30, 2018 , we leased 184 senior living communities from SNH under five leases.  Our total annual rent payable to SNH as of June 30, 2018 was $207.0 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 $51.4 million and $50.8 million for the three months ended June 30, 2018 and 2017 , respectively, and $102.9 million and $101.3 million for the six months ended June 30, 2018 and 2017 , respectively, which included approximately $1.3 million and $1.4 million in estimated percentage rent due to SNH for the three months ended June 30, 2018 and 2017 , respectively, and $2.7 million and $2.8 million for the six months ended June 30, 2018 and 2017 , respectively.

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 six months ended June 30, 2018 , we sold to SNH $8.5 million of improvements made at the communities we lease from SNH. As a result, the annual rent payable by us to SNH increased by approximately $0.7 million . 


27

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



As of June 30, 2018, we managed 75 senior living communities for the account of SNH and its related entities 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. We earned management fees of $3.8 million and $3.6 million for the three months ended June 30, 2018 and 2017 , respectively, and $7.4 million and $7.1 million for the six months ended June 30, 2018 and 2017 , respectively, from the senior living communities we manage for the account of SNH and its related entities. Included in these amounts were fees we earned for our management of capital expenditure projects at the communities we managed for the account of SNH of $0.2 million for each of the three months ended June 30, 2018 and 2017 and $0.4 million and $0.5 million for the six months ended June 30, 2018 and 2017 , respectively.

In November 2017, we entered the transaction agreement with SNH pursuant to which we agreed to sell six senior living communities to SNH and, as we sold these communities, enter new management agreements with SNH for us to manage the sold communities for SNH, with the new management agreements being combined pursuant to two new pooling agreements between us and SNH. In December 2017, January 2018, February 2018 and June 2018, we sold to, and began managing for the account of, SNH these six senior living communities, and, concurrently with those sales, we and SNH entered management agreements for each of these senior living communities and two new pooling agreements.

For more information regarding our leases and management agreements and other transactions with SNH, see Notes 9 and 11 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
 
We account for revenue in accordance with ASC Topic 606, Revenue from Contracts with Customers , which we adopted on January 1, 2018. The adoption of ASC Topic 606 did not result in an adjustment to our beginning retained earnings and did not result in a significant change to the amount and timing of our revenue recognition.

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.

The general trends impacting our industry are affecting our business and revenues. For more information about those trends, see "—General Industry Trends" in Part I, Item 2 of this Quarterly Report.

At some of our senior living communities (principally our SNFs) and our rehabilitation and wellness clinics, Medicare and Medicaid programs provide operating revenues for skilled nursing and rehabilitation and wellness services. We derived approximately 23.2% and 23.1% of our consolidated revenues from these government funded programs during the six months ended June 30, 2018 and 2017 , respectively. Our net Medicare revenues totaled $60.1 million and $65.9 million during the six months ended June 30, 2018 and 2017 , respectively. Our net Medicaid revenues totaled $66.3 million and $64.0 million during the six months ended June 30, 2018 and 2017 , respectively. 

On June 19, 2018, the U.S. Department of Labor released a final rule expanding the availability of association health plans by broadening the criteria for determining when and how small businesses and other groups may form associations to sponsor group health coverage. Further, qualifying association health plans will be regulated on the large group health insurance market and will not be required to comply with the essential health benefit and other requirements under the Patient Protection and Affordable Care Act, or the ACA, applicable to plans on the small group market. The final rule will take effect in three phases beginning September 1, 2018. It is unclear what impact, if any, these changes will have on health insurance markets or our revenues.

On July 13, 2018, the Centers for Medicare and Medicaid Services, or CMS, released a proposed rule that contained proposed modifications to the payment policies under the Medicare Physician Fee Schedule to which our Medicare outpatient therapy rates are tied. The proposed rule also contained other proposed policy changes, including proposals to implement certain provisions of the Bipartisan Budget Act of 2018. CMS also proposed updates to the Quality Payment Program, a program established under the Medicare Access and CHIP Reauthorization Act of 2015, including changes intended to reduce clinician burden and increase flexibility in satisfying program requirements.

On July 31, 2018, CMS issued the latest SNF prospective payment system final rule, which CMS estimates will increase Medicare payments to SNFs by approximately $820 million for federal fiscal year 2019, compared to federal fiscal year 2018. CMS also finalized its proposal to replace the existing case-mix classification methodology, the Resource Utilization Groups, Version IV, model, with a revised case-mix methodology called the Patient-Driven Payment Model effective October 1, 2019.

28

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



In addition, CMS finalized revisions to the regulation that describes a beneficiary’s SNF “resident” status under the consolidated billing provision and the required content of the SNF level of care certification, as well as changes to the SNF Quality Reporting Program, including adopting a new quality measure removal factor and codifying in the regulations a number of requirements.

Further, beginning October 1, 2018, CMS will reduce the adjusted federal per diem rate by 2%, and adjust the resulting rate by the value-based incentive payment amount earned by the SNF for that federal fiscal year under the Skilled Nursing Facility Value-Based Purchasing Program, or SNF VBP program. CMS estimates that the federal fiscal year 2019 changes to the SNF VBP program will decrease payments to SNFs by an aggregate of approximately $211 million, compared to federal fiscal year 2018. CMS also finalized changes to requirements for the SNF VBP program, including performance and baseline periods for the federal fiscal year 2021 SNF VBP program year, an adjustment to the SNF VBP scoring methodology, and an Extraordinary Circumstances Exception policy for the SNF VBP program.

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 of operations.

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 “ — Our Revenues” in Part I, Item 2 of our Quarterly Report on Form 10-Q for the quarter ended March 31, 2018.

Insurance

Increases over time in the costs of insurance, in particular professional and general liability insurance, workers’ compensation insurance and employee health insurance, have had an adverse impact on our results of operations. Although we self insure a large portion of these costs, our costs have increased as a result of the higher costs that we incur to settle claims and to purchase insurance for claims in excess of the self insurance amounts. These increased costs may continue in the future. We, ABP Trust and other companies to which RMR LLC provides management services are the shareholders of an insurance company which has designed and reinsured in part a combined property insurance program in which we and the other shareholders participate. For more information about our existing insurance see the section captioned “Business—Insurance” in Part I, Item I of our Annual Report.

Debt Financings and Covenants

We maintain a $100.0 million secured revolving credit facility, which is available for general business purposes, including acquisitions. Our credit facility 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 4.50% and 6.50% , respectively, per annum as of June 30, 2018 , 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. Our credit agreement 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.

The lenders under our credit facility have waived for the period of six fiscal quarters commencing with the quarter ended March 31, 2018 and ending with the quarter ending June 30, 2019, any default resulting from our non-compliance with the leverage and fixed charge coverage ratio covenants contained in our credit agreement. In connection with this waiver, we agreed that, if at any time during the waiver period we are in non-compliance with either the leverage covenant or the fixed charge coverage ratio covenant (before giving effect to the waiver), the maximum amount available to be drawn under our credit facility (giving effect to applicable borrowing base conditions) less the aggregate outstanding extensions of credit under the credit facility will not be less than approximately $33.3 million. We have also agreed not to declare or pay any dividends, purchase, redeem, retire, defease or otherwise acquire for value any shares of our capital stock, return any capital to our stockholders or distribute any obligations, securities or other assets to our stockholders if we are not in compliance with the leverage covenant or the fixed charge coverage ratio covenant (before giving effect to the waiver) at the time of such action.

29

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




As of June 30, 2018 , we had no outstanding borrowings under our credit facility, $2.7 million in letters of credit issued under our credit facility and approximately $8.0 million of outstanding mortgage debt. As of June 30, 2018 , we believe we were in compliance with all applicable covenants under these agreements.

For more 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 a significant stockholder of us; 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 Executive Vice President, Chief Financial Officer and Treasurer and our Executive Vice President and General Counsel; subsidiaries of ABP Trust, which is controlled by Adam D. Portnoy, who is the sole trustee, an officer and controlling shareholder of ABP Trust and one of our Managing Directors, are our largest stockholder and the landlord for our headquarters; and ABP Trust is the controlling shareholder of 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 or its subsidiaries provide 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 Executive Vice President, Chief Financial Officer and Treasurer and SNH’s former president and chief operating officer as of June 30, 2018 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 insures or reinsures in part a combined property insurance program for us and its six other shareholders.
For more information about these and other such relationships and related person transactions, see Notes 9, 10 and 11 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 2018 Annual Meeting of Stockholders and our other filings with the Securities and Exchange Commission, or SEC. In addition, see the section captioned “Risk Factors” 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, our lease and other agreements with subsidiaries of ABP Trust 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 subsidiaries 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 decreased occupancies, increased costs or discharges to hospitals. As a result of these and other factors, these operations sometimes produce greater earnings in the second and third quarters of a calendar year and lesser earnings 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
Not applicable.

Item 4. Controls and Procedures

As of the end of the period covered by this Quarterly Report on Form 10-Q, our management carried out an evaluation, under the supervision and with the participation of our President and Chief Executive Officer and our Executive Vice President, 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 Executive Vice President, 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 June 30, 2018 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,
•
THE FUTURE AVAILABILITY OF BORROWINGS UNDER OUR CREDIT FACILITY,
•
OUR ABILITY TO RAISE DEBT OR EQUITY CAPITAL,
 
•
OUR ABILITY TO INCREASE THE NUMBER OF SENIOR LIVING COMMUNITIES AND RESIDENTS WE SERVE AND TO GROW OUR OTHER SOURCES OF REVENUES, INCLUDING REHABILITATION AND WELLNESS SERVICES AND OTHER SERVICES WE MAY PROVIDE,

•
OUR ABILITY TO COMPETE FOR ACQUISITIONS EFFECTIVELY,

•
OUR ABILITY TO SELL COMMUNITIES WE OFFER FOR SALE,
•
OUR EXPECTATION THAT WE BENEFIT FROM OUR OWNERSHIP INTEREST IN AND OTHER RELATIONSHIPS WITH AIC AND FROM OUR PARTICIPATION IN INSURANCE PROGRAMS ARRANGED BY AIC,
 
•
THE IMPACT OF THE ACA, OR THE POSSIBLE FUTURE REPEAL, REPLACEMENT OR MODIFICATION OF 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 ACA, OR THE POSSIBLE FUTURE REPEAL, REPLACEMENT OR MODIFICATION OF 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 AND OTHER HEALTHCARE RELATED SERVICES BUSINESSES,
•
INCREASES IN TORT AND INSURANCE LIABILITY COSTS,

32



•
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,
•
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 OR MANAGEMENT ARRANGEMENTS WITH SNH,
•
OUR ABILITY TO OPERATE 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,
•
OUR MARKETING INITIATIVES MAY NOT SUCCEED IN INCREASING OUR OCCUPANCY AND REVENUES, AND THEY MAY COST MORE THAN ANY INCREASED REVENUES THEY MAY GENERATE,
•
AT JUNE 30, 2018, WE HAD $22.1  MILLION OF UNRESTRICTED CASH AND CASH EQUIVALENTS AND $60.9 MILLION AVAILABLE FOR BORROWING UNDER OUR CREDIT FACILITY. IN ADDITION, WE HAVE SOLD IMPROVEMENTS TO SNH IN THE PAST AND EXPECT IN THE FUTURE 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. IN ADDITION, WE MAY FAIL TO COMPLY WITH COVENANTS OR OTHER CONDITIONS TO OUR BORROWING AMOUNTS UNDER OUR CREDIT FACILITY. 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, WEAKENING HOUSING MARKET CONDITIONS, HIGHER LEVELS OF UNEMPLOYMENT AMONG OUR RESIDENTS' OR POTENTIAL RESIDENTS' FAMILY MEMBERS, LOWER LEVELS OF CONSUMER CONFIDENCE, STOCK MARKET

33



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,
•
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 LENDERS UNDER OUR CREDIT FACILITY HAVE WAIVED FOR THE WAIVER PERIOD ANY DEFAULT RESULTING FROM OUR NON-COMPLIANCE WITH THE LEVERAGE AND FIXED CHARGE COVERAGE RATIO COVENANTS CONTAINED IN OUR CREDIT AGREEMENT, WHICH MAY IMPLY THAT WE WILL BE IN COMPLIANCE WITH THOSE COVENANTS AS OF OR PRIOR TO THE END OF THE WAIVER PERIOD. HOWEVER, WE CANNOT BE SURE THAT WE WILL BE IN COMPLIANCE WITH THOSE COVENANTS BY THE END OF THE WAIVER PERIOD OR THAT OUR LENDERS WOULD GRANT US ANY FURTHER WAIVER OF ANY DEFAULT BEYOND THE END OF THE WAIVER PERIOD IF WE ARE NOT IN COMPLIANCE WITH THOSE COVENANTS AS OF THAT TIME,
•
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,
•
IN DECEMBER 2017, WE SUBMITTED A FINAL SUPPLEMENTAL DISCLOSURE TO THE OIG, REGARDING OUR VOLUNTARY DISCLOSURE OF CERTAIN DOCUMENTATION DEFICIENCIES RELATED TO MEDICARE RECORDS AND OTHER MATTERS AT ONE OF OUR SKILLED NURSING FACILITIES. ALTHOUGH WE HAVE ACCRUED AN ESTIMATED REVENUE RESERVE FOR HISTORICAL MEDICARE PAYMENTS WE EXPECT TO REPAY AND WE HAVE ACCRUED AN ESTIMATED RESERVE FOR ADDITIONAL ASSOCIATED COSTS WE HAVE INCURRED OR EXPECT TO INCUR, INCLUDING OIG IMPOSED PENALTIES, WE CANNOT BE SURE THAT OUR RESERVES WILL BE ADEQUATE TO COVER THE FINAL REPAYMENT OBLIGATIONS WE ARE FINALLY DETERMINED TO OWE OR ANY ADDITIONAL ASSOCIATED COSTS. ALSO, OTHER DEFICIENCIES MAY BE DISCOVERED THAT COULD INCREASE OUR LIABILITY TO THE OIG AND THE ASSOCIATED COSTS,
•
OUR ACTIONS AND APPROACH TO MANAGING OUR INSURANCE COSTS, INCLUDING OUR OPERATING AN OFFSHORE CAPTIVE INSURANCE COMPANY AND SELF INSURING WITH RESPECT TO CERTAIN LIABILITY MATTERS, MAY NOT BE SUCCESSFUL AND COULD RESULT IN OUR INCURRING SIGNIFICANT COSTS AND LIABILITIES THAT WE WILL BE RESPONSIBLE FOR FUNDING,
•
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 LEASES, MANAGEMENT OR POOLING ARRANGEMENTS WE MAY EXPECT TO ENTER MAY NOT OCCUR, MAY BE DELAYED OR THE TERMS OF SUCH TRANSACTIONS OR ARRANGEMENTS MAY CHANGE,
•
WE MAY NOT BE ABLE TO SELL PROPERTIES THAT WE MAY SEEK TO SELL ON TERMS ACCEPTABLE TO US OR OTHERWISE,

34



•
WE MAY FAIL TO SATISFY THE LISTING STANDARDS OF THE NASDAQ STOCK MARKET LLC, OR NASDAQ, WHICH COULD RESULT IN THE DELISTING OF OUR COMMON SHARES FROM NASDAQ,
•
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.

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.


35



PART II.  Other Information

Item 1. Legal Proceedings
 
We are defendants in two lawsuits filed by former employees in California. The first lawsuit, Lefevre v. Five Star Quality Care, Inc. was filed in San Bernardino County Superior Court in May 2015 and the second lawsuit, Mandviwala v. Five Star Quality Care, Inc. d/b/a Five Star Quality Care - CA, Inc. and FVE Managers, Inc. was filed in Orange County Superior Court in July 2015. The claims asserted against us in the similar, though not identical, complaints include: (i) failure to pay all wages due, (ii) failure to pay overtime, (iii) failure to provide meal and rest breaks, (iv) failure to provide itemized, printed wage statements, (v) failure to keep accurate payroll records and (vi) failure to reimburse business expenses. Both plaintiffs assert causes of action on behalf of themselves and on behalf of other similarly situated employees, including causes of action pursuant to the California Labor Code Private Attorney General Act. We believe that the claims against us are without merit and intend to vigorously defend against them. The risks of litigation are uncertain, and litigation is usually expensive and can be distracting to management. We can provide no assurance as to the outcome of these lawsuits. Our costs related to this litigation were $0.4 million in 2017. We incurred an additional $0.2 million and $0.6 million of costs related to this litigation during the three and six months ended June 30, 2018.

Procedurally, both matters were removed to the U.S. District Court for the Central District of California, or the District Court, where we filed motions to compel arbitration in each matter. In December 2015, our motions to compel arbitration in both cases were denied and we appealed each to the U.S. Court of Appeals for the Ninth Circuit, or the Ninth Circuit. In Lefevre, the Ninth Circuit affirmed the District Court’s decision. In Mandviwala, the Ninth Circuit affirmed the District Court’s decision in part and reversed the District Court’s decision in part. We filed petitions for writ of certiorari seeking review by the U.S. Supreme Court in both cases. In June 2018, the U.S. Supreme Court denied our petition for writ of certiorari in Mandviwala and, as a result, the merits of Mandviwala will be decided in litigation in the District Court. The U.S. Supreme Court has not yet made a decision regarding Lefevre.    
In addition, from time to time, we become involved in litigation matters incidental to the ordinary course of our business. Although we are unable to predict with certainty the eventual outcome of any litigation, we do not believe any of our currently pending litigation is likely to have a material adverse effect on our business.

Item 1A. Risk Factors

There have been no material changes to the risk factors from those we previously disclosed in our Annual Report.  

Item 6. Exhibits

Exhibit
Number
Description
3.1
3.2
3.3
3.4
4.1
4.2
10.1
10.2
10.3

36



10.4
10.5
31.1
31.2
32.1
99.1
99.2
99.3
101.1
The following materials from the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2018 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.)

37




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: August 9, 2018
 
 
 
 
 
/s/ Richard A. Doyle
 
Richard A. Doyle
 
Executive Vice President, Chief Financial Officer and Treasurer
 
(Principal Financial and Accounting Officer)
 
Dated: August 9, 2018


38

Exhibit 10.3

 
FIVE STAR SENIOR LIVING INC.
FORM OF [AMENDED AND RESTATED] INDEMNIFICATION AGREEMENT
 
THIS [AMENDED AND RESTATED] INDEMNIFICATION AGREEMENT (this “ Agreement ”), effective as of [ DATE ] (the “ Effective Date ”), by and between Five Star Senior Living Inc., a Maryland corporation (the “ Company ”), and [ DIRECTOR/OFFICER ] (“ Indemnitee ”).
 
WHEREAS, Indemnitee currently serves as a director and/or officer of the Company and may, in connection therewith, be subjected to claims, suits or proceedings arising from such service; and
 
WHEREAS, as an inducement to Indemnitee to continue to serve as such, the Company has agreed to indemnify and to advance expenses and costs incurred by Indemnitee in connection with any such claims, suits or proceedings, to the maximum extent permitted by law as hereinafter provided; and
 
WHEREAS, the parties [are currently parties to an Indemnification Agreement dated as of [ DATE ] (the “ Prior Indemnification Agreement ”) and] desire to [amend and restate the Prior Indemnification Agreement and] set forth their agreement regarding indemnification and advancement of expenses [as reflected herein];
 
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant and agree as follows:
 
Section 1.      Definitions .  For purposes of this Agreement:
 
(a)
“ Board ” means the board of directors of the Company.
 
(b)    “ Bylaws ” means the bylaws of the Company, as they may be amended from time to time.
 
(c)      “ Change in Control ” means a change in control of the Company occurring after the Effective Date of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or in response to any similar item on any similar schedule or form) promulgated under the Securities Exchange Act of 1934, as amended (the “ Act ”), whether or not the Company is then subject to such reporting requirement; provided, however, that, without limitation, such a Change in Control shall be deemed to have occurred if after the Effective Date:
 
(i)      any “person” (as such term is used in Sections 13(d) and 14(d) of the Act) is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Act), directly or indirectly, of securities of the Company representing 10% or more of the combined voting power of all the Company’s then outstanding securities entitled to vote generally in the election of directors without the prior approval of at least two-thirds of the members of the Board in office immediately prior to such person attaining such percentage interest;
 
(ii)      there occurs a proxy contest, or the Company is a party to a merger, consolidation, sale of assets, plan of liquidation or other reorganization not approved by at least two-thirds of the members of the Board then in office, as a consequence of which members of the Board in office immediately prior to such transaction or event constitute less than a majority of the Board thereafter; or
 
(iii)      during any period of two consecutive years, other than as a result of an event described in clause (a)(ii) of this Section 1 , individuals who at the beginning of such period constituted the Board (including for this purpose any new director whose election or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of such period) cease for any reason to constitute at least a majority of the Board.
 



(d) “ Charter ” means the charter (as defined in the MGCL), of the Company, as it may be in effect from time to time.

(e)    “ Company Status ” means the status of a Person who is or was a director, trustee, manager, officer, partner, employee, agent or fiduciary of the Company or any predecessor of the Company or any of their majority owned subsidiaries and the status of a Person who, while a director, trustee, manager, officer, partner, employee, agent or fiduciary of the Company or any predecessor of the Company or any of their majority owned subsidiaries, is or was serving at the request of the Company or any predecessor of the Company or any of their majority owned subsidiaries as a director, trustee, manager, officer, partner, employee, agent or fiduciary of another corporation, real estate investment trust, partnership, limited liability company, joint venture, trust, employee benefit plan or any other Enterprise.
 
(f)      “ control ” of an entity, shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities, by contract or otherwise.
 
(g)      “ Disinterested Director ” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification or advance of Expenses is sought by Indemnitee.
 
(h)      “ Enterprise ” shall mean the Company and any other corporation, real estate investment trust, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise that Indemnitee is or was serving at the express written request of the Company as a director, trustee, manager, officer, partner, employee, agent or fiduciary.
 
(i)      “ Expenses ”  means all expenses, including, but not limited to, all attorneys’ fees and costs, retainers, court or arbitration costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, participating, or being or preparing to be a witness in a Proceeding, or responding to, or objecting to, a request to provide discovery in any Proceeding.  Expenses also shall include Expenses incurred in connection with any appeal resulting from any Proceeding, including without limitation the premium, security for, and other costs relating to any cost bond or other appeal bond or its equivalent.
 
(j)      “ Independent Counsel ” means a law firm, or a member of a law firm, selected by the Company and acceptable to Indemnitee, that is experienced in matters of business law.  If, within twenty (20) days after submission by Indemnitee of a written demand for indemnification pursuant to Section 7(a) hereof, no Independent Counsel shall have been selected and agreed to by Indemnitee, either the Company or Indemnitee may petition a Chosen Court (as defined in Section 18 ) for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designate, and the person so appointed shall act as Independent Counsel hereunder.
 
(k)      “ MGCL ” means the Maryland General Corporation Law.
  
(l)      “ Person ” means an individual, a corporation, a general or limited partnership, an association, a limited liability company, a governmental entity, a trust, a joint venture, a joint stock company or another entity or organization.
 
(m)      “ Proceeding ” means any threatened, pending or completed claim, demand, action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other proceeding, whether civil, criminal, administrative or investigative (including on appeal), whether or not by or in the right of the Company, except one initiated by an Indemnitee pursuant to Section 9 .
 
Section 2.      Indemnification - General .  The Company shall indemnify, and advance Expenses to, Indemnitee (a) as provided in this Agreement and (b) otherwise to the maximum extent permitted by Maryland law in effect on the Effective Date and as amended from time to time; provided, however , that no change in Maryland law shall

2


have the effect of reducing the benefits available to Indemnitee hereunder based on Maryland law as in effect on the Effective Date.  The rights of Indemnitee provided in this Section 2 shall include, without limitation, the rights set forth in the other sections of this Agreement, including any additional indemnification permitted by Section 2-418(g) of the MGCL, the Charter or the Bylaws.
 
Section 3.      Proceedings Other Than Derivative Proceedings by or in the Right of the Company .  Indemnitee shall be entitled to the rights of indemnification provided in this Section 3 if, by reason of Indemnitee’s Company Status, Indemnitee is, or is threatened to be, made a party to any Proceeding, other than a derivative Proceeding by or in the right of the Company (or, if applicable, such other Enterprise at which Indemnitee is or was serving at the request of the Company or a predecessor of the Company or any of their majority owned subsidiaries).  Pursuant to this Section 3 , Indemnitee shall be indemnified against all judgments, penalties, fines and amounts paid in settlement and all Expenses incurred by Indemnitee or on Indemnitee’s behalf in connection with a Proceeding by reason of Indemnitee’s Company Status unless it is finally determined that such indemnification is not permitted by the MGCL, the Charter or the Bylaws.
 
Section 4.      Derivative Proceedings by or in the Right of the Company .  Indemnitee shall be entitled to the rights of indemnification provided in this Section 4 if, by reason of Indemnitee’s Company Status, Indemnitee is, or is threatened to be, made a party to any derivative Proceeding brought by or in the right of the Company (or, if applicable, such other Enterprise at which Indemnitee is or was serving at the request of the Company or a predecessor of the Company or any of their majority owned subsidiaries).  Pursuant to this Section 4 , Indemnitee shall be indemnified against all judgments, penalties, fines and amounts paid in settlement and all Expenses incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding unless it is finally determined that such indemnification is not permitted by the MGCL, the Charter or the Bylaws.
 
Section 5.      Indemnification for Expenses of a Party Who is Partly Successful .  Without limitation on Section 3 or Section 4 , if Indemnitee is not wholly successful in any Proceeding covered by this Agreement, but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee under this Section 5 for all Expenses incurred by Indemnitee or on Indemnitee’s behalf in connection with each successfully resolved claim, issue or matter, allocated on a reasonable and proportionate basis.  For purposes of this Section 5 and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
 
Section 6.      Advancement of Expenses .  The Company, without requiring a preliminary determination of Indemnitee’s ultimate entitlement to indemnification hereunder, shall advance all Expenses incurred by or on behalf of Indemnitee in connection with any Proceeding in which Indemnitee may be involved, or is threatened to be involved, including as a party, a witness or otherwise, by reason of Indemnitee’s Company Status, within ten (10) days after the receipt by the Company of a statement or statements from Indemnitee requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding.  Such statement or statements shall reasonably evidence the Expenses incurred by Indemnitee and shall be preceded or accompanied by a written affirmation by Indemnitee of Indemnitee’s good faith belief that the standard of conduct necessary for indemnification by the Company as authorized by the MGCL, the Charter and the Bylaws has been met and a written undertaking by or on behalf of Indemnitee, in substantially the form of Exhibit A hereto or in such other form as may be required under applicable law as in effect at the time of the execution thereof, to reimburse the portion of any Expenses advanced to Indemnitee relating to any claims, issues or matters in the Proceeding as to which it shall be finally determined that the standard of conduct has not been met and which have not been successfully resolved as described in Section 5 .  For the avoidance of doubt, the Company shall advance Expenses incurred by Indemnitee or on Indemnitee’s behalf in connection with such a Proceeding pursuant to this Section 6 until it is finally determined that Indemnitee is not entitled to indemnification under the MGCL, the Charter or the Bylaws in respect of such Proceeding.  To the extent that Expenses advanced to Indemnitee do not relate to a specific claim, issue or matter in the Proceeding, such Expenses shall be allocated on a reasonable and proportionate basis.  The undertaking required by this Section 6 shall be an unlimited general obligation by or on behalf of Indemnitee and shall be accepted without reference to Indemnitee’s financial ability to repay such advanced Expenses and without any requirement to post security therefor.  At Indemnitee’s request, advancement of any such Expense shall be made by the Company’s direct payment of such Expense instead of reimbursement of Indemnitee’s payment of such Expense.

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Section 7.      Procedure for Determination of Entitlement to Indemnification .

(a)      To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written demand therefor.  The Secretary of the Company shall, promptly upon receipt of such a demand for indemnification, provide copies of the demand to the Board.
 
(b)      Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 7(a) , a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall promptly be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred or if, after a Change in Control, Indemnitee shall so request, (A) by the Board (or a duly authorized committee thereof) by a majority vote of a quorum consisting of Disinterested Directors, or (B) if a quorum of the Board consisting of Disinterested Directors is not obtainable or, even if obtainable, such quorum of Disinterested Directors so directs, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, or (C) if so directed by a majority of the members of the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination.  Any Independent Counsel, member of the Board or stockholder of the Company shall act reasonably and in good faith in making a determination regarding Indemnitee’s entitlement to indemnification under this Agreement.
 
(c)    The Company shall pay the fees and expenses of Independent Counsel, if one is appointed, and shall agree to fully indemnify such Independent Counsel against any and all expenses, claims, liabilities and damages arising out of or relating to this Agreement or the Independent Counsel’s engagement as such pursuant hereto.
 
Section 8.      Presumptions and Effect of Certain Proceedings .
 
(a)      In making a determination with respect to entitlement to indemnification hereunder, the Person or Persons making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement.  Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
 
(b)      It shall be presumed that Indemnitee has at all times acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company.  Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.  Without limitation of the foregoing, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise.  In addition, the knowledge or actions, or failure to act, of any director, trustee, manager, officer, partner, employee, agent or fiduciary of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.
 
(c)      Neither the failure to make a determination pursuant to Section 7(b) as to whether indemnification is proper in the circumstances because Indemnitee has met any particular standard of conduct, nor an actual determination by the Company (including by the Board or Independent Counsel) pursuant to Section 7(b) that Indemnitee has not met such standard of conduct, shall be a defense to Indemnitee’s claim that indemnification is proper in the circumstances or create a presumption that Indemnitee has not met any particular standard of conduct. 


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(d)      The termination of any Proceeding by judgment, order, settlement, conviction, a plea of nolo contendere or its equivalent, or an entry of an order of probation prior to judgment, shall not in and of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not meet the standard of conduct required for indemnification.  The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty.  In the event that any Proceeding to which Indemnitee is a party is resolved in any manner other than by adverse judgment against Indemnitee (including, without limitation, settlement of such action, claim or proceeding with or without payment of money or other consideration), it shall be presumed that Indemnitee has been successful on the merits or otherwise in such Proceeding.  Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
 
Section 9.     Remedies of Indemnitee .
 
(a)      If (i) a determination is made pursuant to Section 7(b) that Indemnitee is not entitled to indemnification under this Agreement, (ii) advance of Expenses is not timely made pursuant to Section 6 , (iii) no determination of entitlement to indemnification shall have been made pursuant to Section 7(b) within thirty (30) days after receipt by the Company of the request for indemnification, (iv) payment of indemnification is not made pursuant to Section 5 within ten (10) days after receipt by the Company of a written request therefor, or (v) payment of indemnification is not made within ten (10) days after a determination has been made that Indemnitee is entitled to indemnification, Indemnitee shall (A) unless the Company demands arbitration as provided by Section 17 , be entitled to an adjudication in a Chosen Court or (B) be entitled to seek an award in arbitration as provided by Section 17 , in each case of Indemnitee’s entitlement to such indemnification or advance of Expenses.
 
(b)      In any judicial proceeding or arbitration commenced pursuant to this Section 9 , the Company shall have the burden of proving that Indemnitee is not entitled to indemnification or advance of Expenses, as the case may be.  In the event that a determination shall have been made pursuant to Section 7(b) that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 9 shall be conducted in all respects as a de novo trial on the merits, and Indemnitee shall not be prejudiced by reason of the adverse determination under Section 7(b) .
 
(c)      If a determination shall have been made pursuant to Section 7(b) that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 9 , absent a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the demand for indemnification.
 
(d)      In the event that Indemnitee, pursuant to this Section 9 , seeks a judicial adjudication of or an award in arbitration as provided by Section 17 to enforce Indemnitee’s rights under, or to recover damages for breach of, this Agreement by the Company, or to recover under any directors’ and officers’ liability insurance policies maintained by the Company, the Company shall indemnify Indemnitee against any and all Expenses incurred by Indemnitee in such judicial adjudication or arbitration and, if requested by Indemnitee, the Company shall (within ten (10) days after receipt by the Company of a written demand therefor) advance, to the extent not prohibited by law, the Charter or the Bylaws, any and all such Expenses.
 
(e)      The Company shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 9 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such judicial proceeding or arbitration that the Company is bound by all the provisions of this Agreement.
 
(f)      To the extent requested by Indemnitee and approved by the Board, the Company may at any time and from time to time provide security to Indemnitee for the Company’s obligations hereunder through an irrevocable bank line of credit, funded trust or other collateral.  Any such security, once provided to Indemnitee, may not be revoked or released without the prior written consent of Indemnitee.
 

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(g)      Interest shall be paid by the Company to Indemnitee at the maximum rate allowed to be charged for judgments under the Courts and Judicial Proceedings Article of the Annotated Code of Maryland for amounts which the Company pays or is obligated to pay for the period (i) commencing with either the tenth (10th) day after the date on which the Company was requested to advance Expenses in accordance with Section 6 of this Agreement or the thirtieth (30th) day after the date on which the Company was requested to make the determination of entitlement to indemnification under Section 7(b) of this Agreement, as applicable, and (ii) ending on the date such payment is made to Indemnitee by the Company.
 
Section 10.      Defense of the Underlying Proceeding .
 
(a)      Indemnitee shall notify the Company promptly upon being served with or receiving any summons, citation, subpoena, complaint, indictment, information, notice, request or other document relating to any Proceeding which may result in the right to indemnification or the advance of Expenses hereunder; provided , however , that the failure to give any such notice shall not disqualify Indemnitee from the right, or otherwise affect in any manner any right of Indemnitee, to indemnification or the advance of Expenses under this Agreement unless the Company’s ability to defend in such Proceeding or to obtain proceeds under any insurance policy is materially and adversely prejudiced thereby, and then only to the extent the Company is thereby actually so prejudiced.
 
(b)      Subject to the provisions of the last sentence of this Section 10(b) and of Section 10(c) below, the Company shall have the right to defend Indemnitee in any Proceeding which may give rise to indemnification hereunder; provided , however , that the Company shall notify Indemnitee of any such decision to defend within fifteen (15) days following receipt of notice of any such Proceeding under Section 10(a) above, and the counsel selected by the Company shall be reasonably satisfactory to Indemnitee.  The Company shall not, without the prior written consent of Indemnitee, consent to the entry of any judgment against Indemnitee or enter into any settlement or compromise which (i) includes an admission of fault of Indemnitee, (ii) does not include, as an unconditional term thereof, the full release of Indemnitee from all liability in respect of such Proceeding, which release shall be in form and substance reasonably satisfactory to Indemnitee or (iii) has the actual or purported effect of extinguishing, limiting or impairing Indemnitee’s rights hereunder.  This Section 10(b) shall not apply to a Proceeding brought by Indemnitee under Section 9 above or Section 15 .
 
(c)      Notwithstanding the provisions of Section 10(b) , if in a Proceeding to which Indemnitee is a party by reason of Indemnitee’s Company Status, (i) Indemnitee reasonably concludes, based upon an opinion of counsel approved by the Company, which approval shall not be unreasonably withheld, that Indemnitee may have separate defenses or counterclaims to assert with respect to any issue which may not be consistent with other defendants in such Proceeding, (ii) Indemnitee reasonably concludes, based upon an opinion of counsel approved by the Company, which approval shall not be unreasonably withheld, that an actual or apparent conflict of interest or potential conflict of interest exists between Indemnitee and the Company, or (iii) the Company fails to assume the defense of such Proceeding in a timely manner, Indemnitee shall be entitled to be represented by separate legal counsel of Indemnitee’s choice, subject to the prior approval of the Company, which shall not be unreasonably withheld, at the expense of the Company.  In addition, if the Company fails to comply with any of its obligations under this Agreement or in the event that the Company or any other Person takes any action to declare this Agreement void or unenforceable, or institutes any Proceeding to deny or to recover from Indemnitee the benefits intended to be provided to Indemnitee hereunder, Indemnitee shall have the right to retain counsel of Indemnitee’s choice, at the expense of the Company (subject to Section 9(d) ), to represent Indemnitee in connection with any such matter.
 
Section 11.      Liability Insurance .
 
(a)      To the extent the Company maintains an insurance policy or policies providing liability insurance for any of its directors or officers, Indemnitee shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for any Company director or officer during Indemnitee’s tenure as a director or officer and, following a termination of Indemnitee’s service in connection with a Change in Control, for a period of six (6) years thereafter.
 
(b)      If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Company has directors’ and officers’ liability insurance in effect, the Company shall give prompt notice of the

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commencement of such proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policies.
 
(c)      In the event of any payment by the Company under this Agreement the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee with respect to any insurance policy.  Indemnitee shall take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
 
Section 12.      Non-Exclusivity; Survival of Rights .
 
(a)      The rights of indemnification and advance of Expenses as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Charter or the Bylaws, any agreement or a resolution of the stockholders entitled to vote generally in the election of directors or of the Board, or otherwise.  No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by Indemnitee in Indemnitee’s Company Status prior to such amendment, alteration or repeal.  To the extent that a change in the MGCL permits greater indemnification to Indemnitee than would be afforded currently under the MGCL, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change if permitted by the MGCL.  No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.
 
(b)      The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable or payable or reimbursable as Expenses hereunder if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.
 
Section 13.      Binding Effect .
 
(a)      The indemnification and advance of Expenses provided by, or granted pursuant to, this Agreement shall be binding upon and be enforceable by the parties hereto and their respective successors and assigns (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company), shall continue as to an Indemnitee who has ceased to be a director, trustee, manager, officer, partner, employee, agent or fiduciary of the Company or a director, trustee, manager, officer, partner, employee, agent or fiduciary of another Enterprise which such Person is or was serving at the request of the Company or a predecessor of the Company or any of their majority owned subsidiaries, and shall inure to the benefit of Indemnitee and Indemnitee’s spouse, assigns, heirs, devisees, executors and administrators and other legal representatives.
 
(b)      Any successor of the Company (whether direct or indirect by purchase, merger, consolidation or otherwise) to all, substantially all, or a substantial part of, the business or assets of the Company shall be automatically deemed to have assumed and agreed to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place, provided that no such assumption shall relieve the Company of its obligations hereunder.  To the extent required by applicable law to give effect to the foregoing sentence and to the extent requested by Indemnitee, the Company shall require and cause any such successor to expressly assume and agree to perform this Agreement by written agreement in form and substance satisfactory to Indemnitee.
 
Section 14.      Severability .  If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of any section of this Agreement containing any such provision held to be invalid, illegal or unenforceable that is not itself invalid, illegal or unenforceable) shall

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not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.
 
Section 15.      Limitation and Exception to Right of Indemnification or Advance of Expenses .  Notwithstanding any other provision of this Agreement, (a) any indemnification or advance of Expenses to which Indemnitee is otherwise entitled under the terms of this Agreement shall be made only to the extent such indemnification or advance of Expenses does not conflict with applicable Maryland law and (b) Indemnitee shall not be entitled to indemnification or advance of Expenses under this Agreement with respect to any Proceeding brought by Indemnitee, unless (i) the Proceeding is brought to enforce rights under this Agreement, the Charter, the Bylaws, liability insurance policy or policies, if any, or otherwise or (ii) the Charter, the Bylaws, a resolution of the stockholders entitled to vote generally in the election of directors or of the Board or an agreement approved by the Board to which the Company is a party expressly provides otherwise.  Notwithstanding any other provision of this Agreement, a court of appropriate jurisdiction, upon application of Indemnitee and such notice as the court shall require, may order indemnification of Indemnitee by the Company in the following circumstances:  (a) if such court determines that Indemnitee is entitled to reimbursement under Section 2-418(d)(1) of the MGCL, the court shall order indemnification, in which case Indemnitee shall be entitled to recover the Expenses of securing such reimbursement; or (b) if such court determines that Indemnitee is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, whether or not Indemnitee (i) has met the standard of conduct set forth in Section 2-418(b) of the MGCL or (ii) has been adjudged liable for receipt of an improper personal benefit under Section 2-418(c) of the MGCL, the court may order such indemnification as the court shall deem proper without regard to any limitation on such court-ordered indemnification contemplated by Section 2-418(d)(2)(ii) of the MGCL.
 
Section 16.      Specific Performance, Etc .  The parties hereto recognize that if any provision of this Agreement is violated by the Company, Indemnitee may be without an adequate remedy at law.  Accordingly, in the event of any such violation, Indemnitee shall be entitled, if Indemnitee so elects, to institute proceedings, either in law or at equity, to obtain damages, to enforce specific performance, to enjoin such violation, or to obtain any relief or any combination of the foregoing as Indemnitee may elect to pursue.
 
Section 17.      Arbitration .
 
(a)      Any disputes, claims or controversies regarding Indemnitee’s entitlement to indemnification or advancement of Expenses hereunder or otherwise arising out of or relating to this Agreement, including any disputes, claims or controversies brought by or on behalf of a party hereto or any holder of equity interests (which, for purposes of this Section 17 , shall mean any holder of record or any beneficial owner of equity interests or any former holder of record or beneficial owner of equity interests) of a party, either on his, her or its own behalf, on behalf of a party or on behalf of any series or class of equity interests of a party or holders of equity interests of a party against a party or any of their respective trustees, directors, members, officers, managers, agents or employees, including any disputes, claims or controversies relating to the meaning, interpretation, effect, validity, performance or enforcement of this Agreement, including this Section 17 or the governing documents of a party (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 or Disputes, 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 17 .  For the avoidance of doubt, and not as a limitation, Disputes are intended to include derivative actions against the trustees, directors, officers or managers of a party and class actions by a holder of equity interests against those individuals or entities and a 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 17 , the term “equity interest” shall mean (i) in respect of the Company, shares of beneficial interest of the Company, (ii) shares of “membership interests” in an entity that is a limited liability company, (iii) general partnership interests in an entity that is a partnership, (iv) shares of capital stock of an entity that is a corporation and (v) similar equity ownership interests in other entities.
 
(b)      There shall be three (3) arbitrators.  If there are only two (2) parties to the Dispute, each party shall select one (1) arbitrator within fifteen (15) days after receipt by respondent of a copy of the demand for

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arbitration.  The arbitrators may be affiliated or interested persons of the 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 select, by the vote of a majority of the claimants or the respondents, as the case may be, one (1) arbitrator within fifteen (15) days after receipt of the demand for arbitration. The 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(s) to timely select an arbitrator then the party (or parties) who has selected an arbitrator may request 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 AAA provides the list to select one (1) of the three (3) arbitrators proposed by AAA.  If the party (or parties) fail(s) to select the second (2nd) arbitrator by that time, the party (or parties) who have appointed the first (1st) arbitrator shall then have ten (10) days to select one (1) of the three (3) arbitrators proposed by AAA to be the second (2nd) arbitrator; and, if he/they should fail to select the second (2nd) arbitrator by such time, AAA shall select, within fifteen (15) days thereafter, one (1) of the three (3) arbitrators it had proposed as the second (2nd) arbitrator.  The two (2) arbitrators so appointed shall jointly appoint the third (3rd) and presiding arbitrator (who shall be neutral, impartial and unaffiliated with any party) within fifteen (15) days of the appointment of the second (2nd) arbitrator.  If the third (3rd) arbitrator has not been appointed within the time limit specified herein, then AAA shall provide a list of proposed arbitrators in accordance with the Rules, and the arbitrator shall be appointed by 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 (an “ Award ”), the arbitrators shall be required to follow the laws of the State of Maryland without regard to principles of conflicts of law.  Any arbitration proceedings or award rendered hereunder and the validity, effect and interpretation of this arbitration agreement shall be governed by the Federal Arbitration Act, 9 U.S.C. §1 et seq.  An Award shall be in writing and shall 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 17(g) , 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 the Award may provide.
 
(f)      Except to the extent expressly provided by this Agreement or as otherwise agreed by the parties hereto, each party and each Person acting or seeking to act in a representative capacity (such Person, a “ Named Representative ”) 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 its attorneys, a Named Representative or any attorney of a Named Representative.  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 (3rd) appointed arbitrator.
 
(g)      Notwithstanding any language to the contrary in this Agreement, an Award, including but not limited to any interim Award, may be appealed pursuant to the AAA’s Optional Appellate Arbitration Rules (the “ 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, Section 17(f) shall apply to any appeal pursuant to this Section 17 and the appeal tribunal shall not render an Award that would include shifting of any costs or expenses (including attorneys’ fees) of any party or Named

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Representative or the payment of such costs and expenses, and all costs and expenses of a party or Named Representative shall be its sole responsibility.
 
(h)      Following the expiration of the time for filing the notice of appeal, or the conclusion of the appeal process set forth in Section 17(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 agreement to arbitrate 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 17 is intended to benefit and be enforceable by the parties hereto and their respective holders of equity interests, trustees, directors, officers, managers, agents or employees, and their respective successors and assigns, and shall be binding upon all such parties and their respective holders of equity interests, and 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 18.      Venue .  Each party hereto agrees that it shall bring any Proceeding in respect of any claim arising out of or related to this Agreement exclusively in the courts of the State of Maryland and the Federal courts of the United States, in each case, located in the City of Baltimore (the “ Chosen Courts ”).  Solely in connection with claims arising under this Agreement, each party irrevocably and unconditionally (i) submits to the exclusive jurisdiction of the Chosen Courts, (ii) agrees not to commence any such Proceeding except in such courts, (iii) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any such Proceeding in the Chosen Courts, (iv) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such Proceeding, (v) agrees that service of process upon such party in any such Proceeding shall be effective if notice is given in accordance with Section 24 and (vi) agrees to request and/or consent to the assignment of any dispute arising out of this Agreement or the transactions contemplated by this Agreement to the Chosen Courts’ Business and Technology Case Management Program, or similar program.  Nothing in this Agreement will affect the right of any party hereto to serve process in any other manner permitted by law.  A final judgment in any such Proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.  EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS.  Notwithstanding anything herein to the contrary, if a demand for arbitration of a Dispute is made pursuant to Section 17 , this Section 18 shall not preempt resolution of the Dispute pursuant to Section 17 .
 
Section 19.      Adverse Settlement .  The Company shall not seek, nor shall it agree to or support, or agree not to contest any settlement or other resolution of any matter that has the actual or purported effect of extinguishing, limiting or impairing Indemnitee’s rights hereunder, including without limitation the entry of any bar order or other order, decree or stipulation, pursuant to 15 U.S.C. § 78u-4 (the Private Securities Litigation Reform Act), or any similar foreign, federal or state statute, regulation, rule or law.
 
Section 20.       Period of Limitations .  To the fullest extent permitted by law, no legal action shall be brought, and no cause of action shall be asserted, by or on behalf of the Company or any controlled affiliate of the Company against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company or its controlled affiliate shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however , if any shorter period of limitations is otherwise applicable to any such cause of action, such shorter period shall govern.
 
Section 21.      Counterparts .  This Agreement may be executed in any number of counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the parties hereto and delivered to the other party (including via facsimile or other electronic transmission), it being understood that each party hereto need not sign the same counterpart.

10



Section 22.      Delivery by Electronic Transmission .  This Agreement and any signed agreement or instrument entered into in connection with this Agreement or contemplated hereby, and any amendments hereto or thereto, to the extent signed and delivered by means of an electronic transmission, including by a facsimile machine or via email, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.  At the request of any party hereto or to any such agreement or instrument, each other party hereto or thereto shall re-execute original forms thereof and deliver them to the other parties.  No party hereto or to any such agreement or instrument shall raise the use of electronic transmission by a facsimile machine or via email to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through electronic transmission as a defense to the formation of a contract and each such party forever waives any such defense.
 
Section 23.      Modification and Waiver .  No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto.  No waiver of any of the provisions of this Agreement shall be deemed to, or shall, constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
 
Section 24.      Notices .  Any notice, report or other communication required or permitted to be given hereunder shall be in writing unless some other method of giving such notice, report or other communication is accepted by the party to whom it is given, and shall be given by being delivered at the following addresses to the parties hereto:
 
(a)
If to Indemnitee, to:  The address set forth on the signature page hereto.
 
(b)
If to the Company to:
 
Five Star Senior Living Inc.
400 Centre Street
Newton, Massachusetts 02458-2094
Attn: Secretary
 
or to such other address as may have been furnished to Indemnitee by the Company or to the Company by Indemnitee, as the case may be.
 
Section 25.      Governing Law .  The provisions of this Agreement and any Dispute, whether in contract, tort or otherwise, shall be governed by and construed in accordance with the laws of the State of Maryland without regard to its conflicts of laws rules.
 
Section 26.      Interpretation .
 
(a)      Generally .  Unless the context otherwise requires, as used in this Agreement: (a) words defined in the singular have the parallel meaning in the plural and vice versa; (b) “Articles,” “Sections,” and “Exhibits” refer to Articles, Sections and Exhibits of this Agreement unless otherwise specified; and (c) “hereto” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.
 
(b)      Additional Interpretive Provisions .  The headings in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.  Any capitalized term used in any Exhibit to this Agreement, but not otherwise defined therein, shall have the meaning as defined in this Agreement.  References to any statute shall be deemed to refer to such statute as amended from time to time and to any rules or regulations promulgated thereunder and any successor statute or statutory provision.  References to any agreement are to that agreement as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof.  References to any Person include the successors and permitted assigns of that Person.  Reference to any agreement, document or instrument means the agreement, document or instrument as amended or otherwise modified from time to time in accordance with the terms thereof, and if applicable hereof.

11



(c) [ Expansion of Indemnification . This amendment and restatement of the Prior Indemnification Agreement is intended to expand, and not to limit, the scope of indemnification provided to Indemnitee under the Prior Indemnification Agreement, and this Agreement shall be interpreted consistent with such intent.]

 
[Signature Page Follows]
 


12


 
IN WITNESS WHEREOF, the undersigned have executed or caused to be executed on their behalf this Agreement as of the date first written above.
 
 
Inf
FIVE STAR SENIOR LIVING INC.
 
 
 
By:
 
 
Name:
 
Title:
 
 
 
 
 
[INDEMNITEE]
 
 
 
 
 
 
 
Indemnitee’s Address:
 
 
 
[ ]
 
[Signature Page to [Amended and Restated] Indemnification Agreement]
 





 
EXHIBIT A
 
FORM OF AFFIRMATION AND
UNDERTAKING TO REPAY EXPENSES ADVANCED
 
To the Board of Directors of Five Star Senior Living Inc.:
 
This affirmation and undertaking is being provided pursuant to that certain [Amended and Restated] Indemnification Agreement dated                                 , 20   (the “ Indemnification Agreement ”), by and between Five Star Senior Living Inc., a Maryland corporation (the “ Company ”), and the undersigned Indemnitee, pursuant to which Indemnitee is entitled to advancement of expenses in connection with [Description of Claims/Proceeding] (together, the “ Claims ”).  Terms used, and not otherwise defined, herein shall have the meanings specified in the Indemnification Agreement.
 
Indemnitee is subject to the Claims by reason of Indemnitee’s Company Status or by reason of alleged actions or omissions by Indemnitee in such capacity.
 
Indemnitee hereby affirms Indemnitee’s good faith belief that the standard of conduct necessary for Indemnitee’s indemnification has been met.
 
In consideration of the advancement of Expenses by the Company for attorneys’ fees and related expenses incurred by Indemnitee in connection with the Claims (the “ Advanced Expenses ”), Indemnitee hereby agrees that if, in connection with a proceeding regarding the Claim, it is ultimately determined that Indemnitee is not entitled to indemnification under law, the Charter, the Bylaws or the Indemnification Agreement with respect to an act or omission by Indemnitee, then Indemnitee shall promptly reimburse the portion of the Advanced Expenses relating to the Claim(s) as to which the foregoing findings have been established and which have not been successfully resolved as described in Section 5 of the Indemnification Agreement.  To the extent that Advanced Expenses do not relate to specific Claims, Indemnitee agrees that such Advanced Expenses may be allocated on a reasonable and proportionate basis.
 
IN WITNESS WHEREOF, the undersigned Indemnitee has executed this Affirmation and Undertaking to Repay Expenses Advanced on                      ,      .
 
WITNESS:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Print name of witness
 
Print name of Indemnitee
 







Schedule to Exhibit 10.3

The following directors and executive officers of Five Star Senior Living Inc., or FVE, are parties to Indemnification Agreements with FVE which are substantially identical in all material respects to the representative Indemnification Agreement filed herewith and are dated as of the respective dates listed below. The other Indemnification Agreements are omitted pursuant to Instruction 2 to Item 601 of Regulation S-K.

Name of Signatory
Date
Richard A. Doyle
May 17, 2018
Donna D. Fraiche
May 17, 2018
Bruce M. Gans
May 17, 2018
Barbara D. Gilmore
May 17, 2018
R. Scott Herzig
May 17, 2018
Bruce J. Mackey Jr.
May 17, 2018
Gerard M. Martin
May 17, 2018
Adam D. Portnoy
May 17, 2018
Katherine E. Potter
May 17, 2018


Exhibit 10.4

ELEVENTH AMENDMENT TO
AMENDED AND RESTATED MASTER LEASE AGREEMENT
(LEASE NO. 2)
THIS ELEVENTH AMENDMENT TO AMENDED AND RESTATED MASTER LEASE AGREEMENT (LEASE NO. 2) (this “ Amendment ”) is made and entered into as of July 31, 2018, by and among each of the parties identified on the signature pages hereof as a landlord (collectively, “ Landlord ”) and each of the parties identified on the signature pages hereof as a tenant (jointly and severally, “ Tenant ”).
W I T N E S S E T H :
WHEREAS , pursuant to the terms of that certain Amended and Restated Master Lease Agreement (Lease No. 2), dated as of August 4, 2009, as amended by that certain Partial Termination of and First Amendment to Amended and Restated Master Lease Agreement (Lease No. 2), dated as of November 1, 2009, that certain Partial Termination of and Second Amendment to Amended and Restated Master Lease Agreement (Lease No. 2), dated as of August 1, 2010, that certain Third Amendment to Amended and Restated Master Lease Agreement (Lease No. 2), dated as of June 20, 2011, that certain Fourth Amendment to Amended and Restated Master Lease Agreement (Lease No. 2), dated as of July 22, 2011, that certain Fifth Amendment to Amended and Restated Master Lease Agreement (Lease No. 2), dated as of August 31, 2012, that certain Partial Termination of and Sixth Amendment to Amended and Restated Master Lease Agreement (Lease No. 2), dated as of September 19, 2013, that certain Partial Termination of and Seventh Amendment to Amended and Restated Master Lease Agreement (Lease No. 2), dated as of June 1, 2014, that certain Partial Termination of and Eighth Amendment to Amended and Restated Master Lease Agreement (Lease No. 2), dated as of July 20, 2015, that certain Partial Termination of and Ninth Amendment to Amended and Restated Master Lease Agreement (Lease No. 2), dated as of September 30, 2016, and that certain Tenth Amendment to Amended and Restated Master Lease Agreement (Lease No. 2), dated as of August 1, 2017 (as so amended, “ Master Lease No. 2 ”), Landlord leases to Tenant, and Tenant leases from Landlord, the Leased Property (this and other capitalized terms used but not otherwise defined herein having the meanings given such terms in Master Lease No. 2), all as more particularly described in Master Lease No. 2;
WHEREAS , one of the Facilities leased pursuant to Master Lease No. 2 is the senior living facility known as Palms at St. Lucie West and located at 501 N.W. Cashmere Boulevard, Port St. Lucie, Florida (the “ Palms at St. Lucie Property ”), which is comprised of an assisted living building and individual villas and independent living units that are part of a condominium; and
WHEREAS , SNH/LTA Properties Trust, a Maryland real estate investment trust (“ SNH/LTA ”), has acquired the remaining condominium units comprising the villas and independent living units associated with the Palms at St. Lucie Property and has dissolved the condominium; and

- 1 -

WHEREAS , SNH/LTA and the other entities comprising Landlord, and FSQC Trust and the other entities comprising Tenant, wish to amend Master Lease No. 2 to reflect the acquisition of the remaining condominium units and the dissolution of the condominium relating to the Palms at St. Lucie Property;
NOW, THEREFORE , in consideration of the mutual covenants herein contained and other good and valuable consideration, the mutual receipt and legal sufficiency of which are hereby acknowledged, Landlord and Tenant hereby agree, effective as of the date hereof, as follows:
1.     Minimum Rent . For the avoidance of doubt, the current Minimum Rent (after taking into consideration the acquisition of the remaining condominium units comprising the villas and independent living units associated with the Palms at St. Lucie Property) is Sixty Six Million Seven Hundred Twenty Eight Thousand Eight Hundred Forty and 34/100 Dollars ($66,728,840.34) per annum.
2.     Exhibit A . Exhibit A to Master Lease No. 2 is amended by deleting Exhibit A-52 therefrom in its entirety and replacing it with Exhibit A-52 attached hereto.
3.     Ratification . As amended hereby, Master Lease No. 2 is ratified and confirmed.

[ Remainder of page intentionally left blank; signature pages follow ]


- 2 -

IN WITNESS WHEREOF , the parties have caused this Amendment to be duly executed as a sealed instrument as of the date first above written.

LANDLORD:
CCC FINANCING I TRUST,
CCC INVESTMENTS I, L.L.C.,
CCC OF KENTUCKY TRUST,
CCC PUEBLO NORTE TRUST,
CCDE SENIOR LIVING LLC,
CCOP SENIOR LIVING LLC,
O.F.C. CORPORATION,
SNH CHS PROPERTIES TRUST,
SNH/LTA PROPERTIES GA LLC,
SNH/LTA PROPERTIES TRUST,
SNH SOMERFORD PROPERTIES TRUST,
SPTIHS PROPERTIES TRUST, and
SPTMNR PROPERTIES TRUST


By: /s/ Jennifer F. Francis                
Jennifer F. Francis
President of each of the foregoing entities

CCC FINANCING LIMITED, L.P.

By:    CCC Retirement Trust,
its General Partner

By: /s/ Jennifer F. Francis            
Jennifer F. Francis
President

CCC RETIREMENT COMMUNITIES II, L.P.

By:    Crestline Ventures LLC,
its General Partner

By: /s/ Jennifer F. Francis            
Jennifer F. Francis
President





- 3 -


LEISURE PARK VENTURE LIMITED PARTNERSHIP

By:
CCC Leisure Park Corporation,
its General Partner

By: /s/ Jennifer F. Francis            
Jennifer F. Francis
President


- 4 -

TENANT:
FIVE STAR QUALITY CARE TRUST


By: /s/ Richard A. Doyle                
Richard A. Doyle
Treasurer


FS TENANT HOLDING COMPANY TRUST


By: /s/ Richard A. Doyle                
Richard A. Doyle
Treasurer



- 5 -


EXHIBIT A-52

Palms at St Lucie West
501 N.W. Cashmere Boulevard
Port St. Lucie, Florida


LEGAL DESCRIPTION


Assisted Living :
Lot 1, of ST. LUCIE WEST PLAT NO. 137, according to the Plat thereof, recorded in Plat Book 39, pages 26 and 26A, of the Public Records of St. Lucie County, Florida

and

Villas and Independent Living :
All of Lot 2, ST. LUCIE WEST PLAT NO. 149, according to the Plat thereof, as recorded in Plat Book 40, at Pages 17 and 17A, of the Public Records of St. Lucie County Florida.



Exhibit 10.5

PARTIAL TERMINATION OF AND SIXTEENTH AMENDMENT TO
AMENDED AND RESTATED MASTER LEASE AGREEMENT
(LEASE NO. 1)
THIS PARTIAL TERMINATION OF AND SIXTEENTH AMENDMENT TO AMENDED AND RESTATED MASTER LEASE AGREEMENT (LEASE NO. 1) (this " Amendment ") is made and entered into as of June 1, 2018 by and among each of the parties identified on the signature pages hereof as a landlord (collectively, " Landlord ") and each of the parties identified on the signature pages hereof as a tenant (jointly and severally, " Tenant ").
W I T N E S S E T H :
WHEREAS , pursuant to the terms of that certain Amended and Restated Master Lease Agreement (Lease No. 1), dated as of August 4, 2009, as amended by that certain Partial Termination of and First Amendment to Amended and Restated Master Lease Agreement (Lease No. 1), dated as of October 1, 2009, that certain Second Amendment to Amended and Restated Master Lease Agreement (Lease No. 1), dated as of November 17, 2009, that certain Third Amendment to Amended and Restated Master Lease Agreement (Lease No. 1), dated as of December 10, 2009, that certain Partial Termination of and Fourth Amendment to Amended and Restated Master Lease Agreement (Lease No. 1), dated as of August 1, 2010, that certain Fifth Amendment to Amended and Restated Master Lease Agreement (Lease No. 1), dated as of May 1, 2011, that certain Partial Termination of and Sixth Amendment to Amended and Restated Master Lease Agreement (Lease No. 1), dated as of June 1, 2011, that certain Seventh Amendment to Amended and Restated Master Lease Agreement (Lease No. 1), dated as of June 20, 2011, that certain Eighth Amendment to Amended and Restated Master Lease Agreement (Lease No. 1), dated as of August 31, 2012, that certain Partial Termination of and Ninth Amendment to Amended and Restated Master Lease Agreement (Lease No. 1), dated as of August 1, 2013, that certain Partial Termination of and Tenth Amendment to Amended and Restated Master Lease Agreement (Lease No. 1), dated as of January 22, 2014, that certain Partial Termination of and Eleventh Amendment to Amended and Restated Master Lease Agreement (Lease No. 1), dated as of October 1, 2014, that certain Partial Termination of and Twelfth Amendment to Amended and Restated Master Lease Agreement (Lease No. 1), dated as of October 31, 2014, that certain Partial Termination of and Thirteenth Amendment to Amended and Restated Master Lease Agreement (Lease No. 1), dated as of February 17, 2015, that certain Partial Termination of and Fourteenth Amendment to Amended and Restated Master Lease Agreement (Lease No. 1), dated as of August 1, 2015, and that certain Partial Termination of and Fifteenth Amendment to Amended and Restated Master Lease Agreement (Lease No. 1), dated as of December 29, 2015 (as so amended, " Amended Lease No. 1 "), Landlord leases to Tenant, and Tenant leases from Landlord, the Leased Property (this and other capitalized terms used but not otherwise defined herein having the meanings given such terms in Amended Lease No. 1), all as more particularly described in Amended Lease No. 1; and
WHEREAS , simultaneously herewith, SPTMNR Properties Trust is selling the Property consisting of the real property and related improvements known as Lancaster Healthcare Center and located at 1642 West Avenue J, Lancaster, California, as more particularly described on Exhibit A-5 to Amended Lease No. 1 (the “ Lancaster Property ”); and


WHEREAS, in connection with the foregoing, SPTMNR Properties Trust and the other entities comprising Landlord and Five Star Quality Care Trust and the other entities comprising Tenant wish to amend Amended Lease No. 1 to terminate Amended Lease No. 1 with respect to the Lancaster Property;
NOW, THEREFORE , in consideration of the mutual covenants herein contained and other good and valuable consideration, the mutual receipt and legal sufficiency of which are hereby acknowledged, Landlord and Tenant hereby agree that, effective as of the date hereof, Amended Lease No. 1 is hereby amended as follows:
1.     Partial Termination of Amended Lease No. 1 . Amended Lease No. 1 is terminated with respect to the Lancaster Property and neither Landlord nor Tenant shall have any further rights or liabilities thereunder with respect to the Lancaster Property from and after the date hereof, except for those rights and liabilities which by their terms survive the termination of Amended Lease No. 1.
2.      Definition of Minimum Rent . The defined term "Minimum Rent" set forth in Section 1.68 of Amended Lease No. 1 is deleted in its entirety and replaced with the following:
" Minimum Rent " shall mean the sum of Fifty-Nine Million Twenty Thousand Five Hundred Three and 42/100 Dollars ($59,020,503.42) per annum.
3.      Schedule 1 . Schedule 1 to Amended Lease No. 1 is deleted in its entirety and replaced with Schedule 1 attached hereto.
4.      Exhibit A . Exhibit A to Amended Lease No. 1 is amended by deleting the text of Exhibit A-5 attached thereto in their entirety and replacing it with “Intentionally Deleted”.
5.      Ratification . As amended hereby, Amended Lease No. 1 is hereby ratified and confirmed.

[Remainder of page intentionally left blank; signature pages follow]




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

LANDLORD:
SNH SOMERFORD PROPERTIES TRUST
SPTMNR PROPERTIES TRUST
SNH/LTA PROPERTIES TRUST
SPTIHS PROPERTIES TRUST
SNH CHS PROPERTIES TRUST
SNH/LTA PROPERTIES GA LLC
SNH/LTA SE WILSON LLC

By:     /s/ Jennifer F. Francis                
Jennifer F. Francis
President and Chief Operating Officer of each of the foregoing entities


TENANT:
FIVE STAR QUALITY CARE TRUST
MORNINGSIDE OF KNOXVILLE, LLC
MORNINGSIDE OF FRANKLIN, LLC
FVE SE WILSON LLC
By:     /s/ Bruce J. Mackey Jr.                
Bruce J. Mackey Jr.
President and Chief Executive Officer of each of the foregoing entities

MORNINGSIDE OF MACON, LLC
MORNINGSIDE OF SENECA, L.P.
MORNINGSIDE OF HOPKINSVILLE, LIMITED PARTNERSHIP

By:
LIFETRUST AMERICA, INC.,
a Tennessee corporation, its General Partner/Member (as applicable)


By:     /s/ Bruce J. Mackey Jr.            
Bruce J. Mackey Jr.
President and Chief Executive Officer


[Signature Page: Partial Termination of and Sixteenth Amendment to Amended and Restated Master Lease Agreement (Lease No. 1)]


MORNINGSIDE OF BEAUFORT, LLC
MORNINGSIDE OF CAMDEN, LLC
MORNINGSIDE OF HARTSVILLE, LLC
MORNINGSIDE OF LEXINGTON, LLC
MORNINGSIDE OF ORANGEBURG, LLC

By:
MORNINGSIDE OF SOUTH CAROLINA, L.P., a Delaware limited partnership, its Sole Member

By:
LIFETRUST AMERICA, INC.,
a Tennessee corporation, its General Partner


By:
/s/ Bruce J. Mackey Jr.        
Bruce J. Mackey Jr.
President and Chief Executive Officer


MORNINGSIDE OF CULLMAN, LLC
MORNINGSIDE OF MADISON, LLC
MORNINGSIDE OF SHEFFIELD, LLC

By:
MORNINGSIDE OF ALABAMA, L.P., a Delaware limited partnership, its Sole Member

By:
LIFETRUST AMERICA, INC.,
a Tennessee corporation, its General Partner


By:
/s/ Bruce J. Mackey Jr.__ _______
Bruce J. Mackey Jr.
President and Chief Executive Officer










[Signature Page: Partial Termination of and Sixteenth Amendment to Amended and Restated Master Lease Agreement (Lease No. 1)]

MORNINGSIDE OF BOWLING GREEN, LLC
MORNINGSIDE OF PADUCAH, LLC

By:
MORNINGSIDE OF KENTUCKY, LIMITED PARTNERSHIP, a Delaware limited partnership, its Sole Member

By:
LIFETRUST AMERICA, INC.,
a Tennessee corporation, its General Partner


By:
/s/ Bruce J. Mackey Jr.        
Bruce J. Mackey Jr.
President and Chief Executive Officer

MORNINGSIDE OF CONYERS, LLC
MORNINGSIDE OF GAINESVILLE, LLC

By:
MORNINGSIDE OF GEORGIA, L.P., a Delaware limited partnership, its Sole Member

By:
LIFETRUST AMERICA, INC.,
a Tennessee corporation, its General Partner


By:
/s/ Bruce J. Mackey Jr.        
Bruce J. Mackey Jr.
President and Chief Executive Officer

MORNINGSIDE OF CLEVELAND, LLC
MORNINGSIDE OF COOKEVILLE, LLC
MORNINGSIDE OF JACKSON, LLC

By:
MORNINGSIDE OF TENNESSEE, LLC, a Delaware limited liability company, its Sole Member


By:
/s/ Bruce J. Mackey Jr.            
Bruce J. Mackey Jr.
President and Chief Executive Officer


[Signature Page: Partial Termination of and Sixteenth Amendment to Amended and Restated Master Lease Agreement (Lease No. 1)]


SCHEDULE 1

PROPERTY-SPECIFIC INFORMATION


Exhibit
Property Address
Base Gross Revenues
(Calendar Year)
Base Gross Revenues
(Dollar Amount)
Commencement
Date
Interest Rate
A-1
Intentionally Deleted.

N/A
N/A
N/A
N/A
A-2
Intentionally Deleted.

N/A
N/A
N/A
N/A
A-3
Somerford Place - Encinitas
1350 South El Camino Real
Encinitas, CA 92024
2009
$3,092,467
03/31/2008
8%
A-4
Somerford Place - Fresno
6075 North Marks Avenue
Fresno, CA 93711
2009
$3,424,896
03/31/2008
8%
A-5
Intentionally Deleted.
N/A
N/A
N/A
N/A
A-6
Somerford Place – Redlands
1319 Brookside Avenue
Redlands, CA 92373
2009
$3,065,084
03/31/2008
8%
A-7
Somerford Place - Roseville
110 Sterling Court
Roseville, CA 95661
2009
$2,802,082
03/31/2008
8%
A-8
Leisure Pointe
1371 Parkside Drive
San Bernardino, CA 92404
2007
$1,936,220
09/01/2006
8.25%
A-9
Van Nuys Health Care Center
6835 Hazeltine Street
Van Nuys, CA 91405
2005
$3,626,353
12/31/2001
10%
A-10
Mantey Heights
Rehabilitation & Care Center
2825 Patterson Road
Grand Junction, CO 81506
2005
$5,564,949
12/31/2001
10%
A-11
Cherrelyn Healthcare Center
5555 South Elati Street
Littleton, CO 80120
2005
$12,574,200
12/31/2001
10%
A-12
Somerford House and Somerford Place – Newark I & II
501 South Harmony Road and
4175 Ogletown Road
Newark, DE 19713
2009
$6,341,636
03/31/2008
8%
A-13
Tuscany Villa Of Naples
(aka Buena Vida)
8901 Tamiami Trail East
Naples, FL 34113
2008
$2,157,675
09/01/2006
8.25%
A-14
Intentionally Deleted.

N/A
N/A
N/A
N/A
A-15
Morningside of Columbus
7100 South Stadium Drive
Columbus, GA 31909
2006
$1,381,462
11/19/2004
9%




Exhibit
Property Address
Base Gross Revenues
(Calendar Year)
Base Gross Revenues
(Dollar Amount)
Commencement
Date
Interest Rate
A-16
Morningside of Dalton
2470 Dug Gap Road
Dalton, GA 30720
2006
$1,196,357
11/19/2004
9%
A-17
Morningside of Evans
353 North Belair Road
Evans, GA 30809
2006
$1,433,421
11/19/2004
9%
A-18
Vacant Land Adjacent to Morningside of Macon
6191 Peake Road
Macon, GA 31220
2006
N/A
11/19/2004
9%
A-19
Intentionally Deleted.
N/A
N/A
N/A
N/A

A-20
Union Park Health Services
2401 East 8 th  Street
Des Moines, IA 50316
2005
$4,404,678
12/31/2001
10%
A-21
Intentionally Deleted.
N/A
N/A
N/A
N/A

A-22
Prairie Ridge Care & Rehabilitation
608 Prairie Street
Mediapolis, IA 52637
2005
$3,234,505
12/31/2001
10%
A-23
Ashwood Place
102 Leonardwood
Frankfort, KY 40601
2007
$1,769,726
09/01/2006
8.25%
A-24
Somerford Place - Annapolis
2717 Riva Road
Annapolis, MD 21401
2009
$3,917,902
03/31/2008
8%
A-25
Somerford Place - Columbia
8220 Snowden River Parkway
Columbia, MD 21045
2009
$3,221,426
03/31/2008
8%
A-26
Somerford Place - Frederick
2100 Whittier Drive
Frederick, MD 21702
2009
$5,088,592
03/31/2008
8%
A-27
Somerford Place - Hagerstown
10114 & 10116 Sharpsburg Pike
Hagerstown, MD 21740
2009
$4,066,761
03/31/2008
8%
A-28
The Wellstead of Rogers
20500 and 20600
   South Diamond Lake Road
Rogers, MN 55374
2009
$12,646,616
03/01/2008
8%
A-29
Intentionally Deleted.
N/A
N/A
N/A
N/A

A-30
Hermitage Gardens of Oxford
1488 Belk Boulevard
Oxford, MS 38655
2007
$1,816,315
10/01/2006
8.25%
A-31
Hermitage Gardens of Southaven
108 Clarington Drive
Southaven, MS 38671
2007
$1,527,068
10/01/2006
8.25%
A-32
Ashland Care Center
1700 Furnace Street
Ashland, NE 68003
2005
$4,513,891
12/31/2001
10%




Exhibit
Property Address
Base Gross Revenues
(Calendar Year)
Base Gross Revenues
(Dollar Amount)
Commencement
Date
Interest Rate
A-33
Blue Hill Care Center
414 North Wilson Street
Blue Hill, NE 68930
2005
$2,284,065
12/31/2001
10%
A-34
Central City Care Center
2720 South 17 th  Avenue
Central City, NE 68462
2005
$2,005,732
12/31/2001
10%
A-35
Intentionally Deleted.

N/A
N/A
N/A
N/A

A-36
Gretna Community Living Center
700 South Highway 6
Gretna, NE 68028
2005
$3,380,356
12/31/2001
10%
A-37
Sutherland Care Center
333 Maple Street
Sutherland, NE 69165
2005
$2,537,340
12/31/2001
10%
A-38
Waverly Care Center
11041 North 137 th  Street
Waverly, NE 68462
2005
$3,066,135
12/31/2001
10%
A-39
Intentionally Deleted.

N/A
N/A
N/A
N/A

A-40
Intentionally Deleted.
N/A
N/A
N/A
N/A

A-41
Mount Vernon of South Park
1400 Riggs Road
South Park, PA 15129
2006
$2,718,057
10/31/2005
9%
A-42
Morningside of Gallatin
1085 Hartsville Pike
Gallatin, TN 37066
2006
$1,343,801
11/19/2004
9%
A-43
Walking Horse Meadows
207 Uffelman Drive
Clarksville, TN 37043
2007
$1,471,410
01/01/2007
8.25%
A-44
Morningside of Belmont
1710 Magnolia Boulevard
Nashville, TN 37212
2006
$3,131,648
06/03/2005
9%
A-45
Dominion Village at Chesapeake
2856 Forehand Drive
Chesapeake, VA 23323
2005
$1,416,951
05/30/2003
10%
A-46
Dominion Village at Williamsburg
4132 Longhill Road
Williamsburg, VA 23188
2005
$1,692,753
05/30/2003
10%
A-47
Intentionally Deleted.
N/A
N/A
N/A
N/A

A-48
Brookfield Rehabilitation and Specialty Care (aka Woodland Healthcare Center)
18741 West Bluemound Road
Brookfield, WI 53045
2005
$13,028,846
12/31/2001
10%
A-49
Meadowmere -  
   Southport Assisted Living
8350 and 8351 Sheridan Road
Kenosha, WI 53143
2009
$2,170,645
01/04/2008
8%




Exhibit
Property Address
Base Gross Revenues
(Calendar Year)
Base Gross Revenues
(Dollar Amount)
Commencement
Date
Interest Rate
A-50
Meadowmere -  
   Madison Assisted Living
5601 Burke Road
Madison, WI 53718
2009
$2,136,654
01/04/2008
8%
A-51
Intentionally Deleted.
N/A
N/A
N/A
N/A
A-52
Mitchell Manor Senior Living
5301 West Lincoln Avenue
West Allis, WI 53219
2009
$12,348,104
01/04/2008
8%
A-53
Laramie Care Center
503 South 18 th  Street
Laramie, WY 82070
2005
$4,473,949
12/31/2001
10%
A-54
Haven in Highland Creek
5920 McChesney Drive
Charlotte, NC 28269

Laurels in Highland Creek   
6101 Clark Creek Parkway
Charlotte, NC 28269
2010
$6,454,157
11/17/2009
8.75%
A-55
Haven in the Village  
   at Carolina Place
13150 Dorman Road
Pineville, NC 28134

Laurels in the Village
   at Carolina Place
13180 Dorman Road
Pineville, NC 28134
2010
$7,052,425
11/17/2009
8.75%
A-56
Haven in the Summit
3 Summit Terrace
Columbia, SC 29229
2010
$2,308,737
11/17/2009
8.75%
A-57
Haven in the Village at Chanticleer
355 Berkmans Lane
Greenville, SC 29605
2010
$2,197,919
11/17/2009
8.75%
A-58
Intentionally Deleted
N/A
N/A
N/A
N/A

A-59
Haven in Stone Oak
511 Knights Cross Drive
San Antonio, TX 78258

Laurels in Stone Oak
575 Knights Cross Drive San Antonio, TX 78258
2010
$6,584,027
11/17/2009
8.75%
A-60
Eastside Gardens
2078 Scenic Highway North
Snellville, GA 30078
2010
$1,766,628
12/10/2009
8.75%
A-61
Crimson Pointe
7130 Crimson Ridge Drive
Rockford, IL 61107
2012
$2,568,827
05/01/2011
8%
A-62
Talbot Park
6311 Granby Street
Norfolk, VA 23305
2012
$3,866,871
06/20/2011
7.5%




Exhibit
Property Address
Base Gross Revenues
(Calendar Year)
Base Gross Revenues
(Dollar Amount)
Commencement
Date
Interest Rate
A-63
The Landing at Parkwood Village
1720 Parkwood Boulevard
Wilson, NC 27893
2012
$4,318,990
06/20/2011
7.5%
A-64
Aspenwood
14400 Homecrest Road Silver Spring, MD 20906
2005
$4,470,354
10/25/2002
10%
A-65
HeartFields at Easton
700 Port Street
Easton, MD 21601
2005
$2,545,887
10/25/2002
10%
A-66
Morningside of Macon
6191 Peake Road
Macon, GA 31220
2006
$1,298,541
11/19/2004
9%
A-67
Morningside of Beaufort
109 Old Salem Road
Beaufort, SC 29902
2006
$1,337,453
11/19/2004
9%
A-68
Morningside of Camden
719 Kershaw Highway
Camden, SC 29020
2006
$1,595,035
11/19/2004
9%
A-69
Morningside of Hartsville
1901 West Carolina Avenue
Hartsville, SC 29550
2006
$1,507,131
11/19/2004
9%
A-70
Morningside of Lexington
218 Old Chapin Road
Lexington, SC 29072
2006
$1,638,422
11/19/2004
9%
A-71
Morningside of Orangeburg
2306 Riverbank Drive
Orangeburg, SC 29118
2006
$1,129,764
11/19/2004
9%
A-72
Morningside of Seneca
15855 Wells Highway
Seneca, SC 29678
2006
$1,684,477
11/19/2004
9%
A-73
Morningside of Cullman
2021 Dahlke Dr. NE
Cullman, AL 32058
2006
$1,413,633
11/19/2004
9%
A-74
Morningside of Madison
49 Hughes Road
Madison, AL 35758
2006
$1,531,206
11/19/2004
9%
A-75
Morningside of Sheffield
413 D. D. Cox Boulevard
Sheffield, AL 35660
2006
$1,495,038
11/19/2004
9%
A-76
Morningside of Bowling Green
981 Campbell Lane
Bowling Green, KY 42104
2006
$1,458,781
11/19/2004
9%
A-77
Morningside of Paducah
1700 Elmdale Road
Paducah, KY 42003
2006
$2,012,245
11/19/2004
9%




Exhibit
Property Address
Base Gross Revenues
(Calendar Year)
Base Gross Revenues
(Dollar Amount)
Commencement
Date
Interest Rate
A-78
Morningside of Conyers
1352 Wellbrook Circle
Conyers, GA 30012
2006
$1,646,910
11/19/2004
9%
A-79
Morningside of Gainesville
2435 Limestone Parkway
Gainesville, GA 30501
2006
$1,453,250
11/19/2004
9%
A-80
Morningside of Cleveland
2900 Westside Drive, N.W.
Cleveland, TN 37312
2006
$1,212,846
11/19/2004
9%
A-81
Morningside of Cookeville
1010 East Spring Street
Cookeville, TN 38501
2006
$1,513,932
11/19/2004
9%
A-82
Morningside of Jackson
1200 North Parkway
Jackson, TN 38305
2006
$1,787,155
11/19/2004
9%
A-83
Williamsburg Villas
A Morningside Community
3020 Heatherton Way
Knoxville, TN 37920
2006
$2,728,841
11/19/2004
9%
A-84
Morningside of Franklin
105 Sunrise Circle
Franklin, TN 37067
2006
$1,582,509
11/19/2004
9%
A-85
Morningside of Hopkinsville
4190 Lafayette Road
Hopkinsville, KY 42240
2006
$1,444,246
11/19/2004
9%
A-86
Parkwood Village
1730 Parkwood Boulevard
Wilson, NC 27893
2012
$4,318,990
06/23/2011
7.5%





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: August 9, 2018
/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: August 9, 2018
/s/ Richard A. Doyle
 
Richard A. Doyle
 
Executive Vice President, 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 June 30, 2018 (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
 
Executive Vice President, Chief Financial Officer and Treasurer
 
 
Date: August 9, 2018




Exhibit 99.3


POOLING AGREEMENT No. 13
THIS POOLING AGREEMENT No. 13 (this “ Agreement ”) is made as of January 19, 2018 (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.
“ 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.
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 -
 

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, twenty percent (20%) to Manager and eighty percent (80%) 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, 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

- 3 -
 

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.
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

- 4 -
 

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.
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 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-

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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 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

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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:
(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.

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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 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

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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.
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.

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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 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:
/s/ Richard A. Doyle                
Richard A. Doyle
Chief Financial Officer and Treasurer
SNH TELLICO TENANT LLC
By:
/s/ Richard W. Siedel, Jr.            
Richard W. Siedel, Jr.
President and Treasurer



[Signature Page to Pooling Agreement No. 13]



Schedule A
TRSes


SNH Tellico Tenant LLC





Schedule B

Facilities

SNH Tellico Tenant LLC

The Neighborhood at Tellico Village
100 Chatuga Drive West
Loudon, Tennessee 37774






Schedule C
Management Agreements

1.
Management Agreement dated as of January 19, 2018 between FVE Managers, Inc. and SNH Tellico Tenant LLC (The Neighborhood at Tellico Village).