AGREEMENT FOR SALE OF REAL ESTATE AND MASTER LEASE AMENDMENTS

EXHIBIT 10.78

 

AGREEMENT FOR SALE OF REAL ESTATE

AND MASTER LEASE AMENDMENTS

 

BETWEEN

 

VENTAS REALTY, LIMITED PARTNERSHIP

 

AND

 

KINDRED HEALTHCARE, INC.

 

AND

 

KINDRED HEALTHCARE OPERATING, INC.

 

November 5, 2003

 

AGREEMENT FOR SALE OF REAL ESTATE

AND MASTER LEASE AMENDMENTS

 

This AGREEMENT FOR SALE OF REAL ESTATE AND MASTER LEASE AMENDMENTS ( “Agreement” ) is made on November 5, 2003 between VENTAS REALTY, LIMITED PARTNERSHIP , a Delaware limited partnership ( “Seller” ) and KINDRED HEALTHCARE OPERATING, INC., a Delaware corporation (“Kindred”) and KINDRED HEALTHCARE, INC., a Delaware corporation (together with Kindred, collectively, “Purchaser” ).

 

1. Purchase and Sale; Master Lease Amendments . Seller agrees to sell, or, in the case of Westridge (as defined in Section 5(c) below), to cause Ventas Finance I, LLC to sell to Purchaser, and Purchaser agrees to purchase from Seller (or, in the case of Westridge, Ventas Finance I, LLC), the Property, as hereinafter defined, for the Purchase Price, as hereinafter defined, and subject to the terms and conditions set forth in this Agreement, and Seller and Purchaser further agree to amend (and Seller agrees to cause Ventas Finance I, LLC to amend in the case of the CMBS Master Lease (as defined in Section 5(c) below)) those certain master leases (herein, the “ Master Leases ”) identified in the Master Lease Amendments, as hereinafter defined, on the terms set forth in the Master Lease Amendments, subject to the terms and conditions set forth in this Agreement.

 

2. Purchase Price .

 

(a) The purchase price (the “ Purchase Price ”) for the Property shall be Seventy Nine Million and No/100 Dollars ($79,000,000.00).

 

(b) Each individual property listed on Exhibit A shall be allocated such portion of the Purchase Price as is set forth opposite the common name of such property on Exhibit B .

 

3. Property . “ Property ” means all of Seller’s (or, in the case of Westridge, Ventas Finance I, LLC’s) right, title and interest, if any, in (a) the land described on Exhibit A (the “ Land ”); (b) all easements and other related rights appurtenant to the Land (collectively, “ Appurtenances ”); and (c) all of the buildings, structures, fixtures and other improvements located on the Land (collectively, “ Improvements ”).

 

4. Earnest Money Deposit . Contemporaneously with the execution and delivery of this Agreement by Purchaser and Seller, Purchaser shall deposit One Million Five Hundred Thousand and No/100 Dollars ($1,500,000.00) (the “ Earnest Money ”) with Seller by federally insured wire transfer pursuant to wire transfer instructions provided to Purchaser by Seller. The Earnest Money may be commingled with other funds of Seller, and Seller shall not be obligated to hold the Earnest Money in an interest bearing account. The Earnest Money shall be non-

 

refundable for any reason other than as expressly provided in, and subject to the terms of, Section 12(b)(i)(x) below.

 

5. Certain Covenants and Conditions .

 

(a) [ Intentionally Omitted ]

 

(b) Lender Approval . It shall be a condition precedent to Purchaser’s obligation to proceed to Closing hereunder that Purchaser shall have obtained the approval of its lenders (the “ Lenders ”, and such approval shall be called “ Lender Approval ”) to the transactions contemplated by this Agreement, including, without limitation, the Master Lease Amendments (as hereinafter defined) and the Termination Agreements (as hereinafter defined) (collectively, the “ Transactions ”). If, as of November 30, 2003 (the “ Approval Date ”), Purchaser has not received Lender Approval, Purchaser may terminate this Agreement by delivery of written notice to Seller not later than 5:00 p.m. (Chicago time) on the Approval Date, which notice shall state the grounds of such termination. Upon timely delivery of such notice of termination by Purchaser, this Agreement shall immediately terminate, the Earnest Money shall be retained by Seller, Purchaser shall, simultaneously with delivery of such notice of termination, pay to Seller an additional Three Million Five Hundred Thousand and No/100 Dollars ($3,500,000.00) (the “ Break-Up Fee ”), and neither Purchaser nor Seller shall have any further obligations or liabilities hereunder except for those obligations and liabilities that expressly survive termination. In the event that Purchaser does not deliver to Seller a timely notice of termination pursuant to the terms of this Section 5(b) , Purchaser shall be deemed to have obtained Lender Approval and to have forever waived the condition precedent described in this Section 5(b) , and Purchaser shall be obligated to proceed to Closing hereunder. Purchaser covenants and agrees to notify Seller in writing immediately following its receipt of Lender Approval (the “ Lender Approval Notice ”).

 

(c) Westridge Approval . It shall be a condition precedent to Seller’s obligation to cause to be conveyed to Kindred (or its affiliate) that property identified on Exhibit B hereof as “Westridge Healthcare Center” (“ Westridge ”), which property is subject to the terms of the CMBS Master Lease described hereinafter and certain financing documents associated therewith (the “ CMBS Loan Documents ”), that, on or prior to Closing, Seller and Ventas Finance I, LLC, an affiliate of Seller and the Lessor under that certain Master Lease dated December 12, 2001 by and between Purchaser and Ventas Finance I, LLC (the “ CMBS Master Lease ”), shall have obtained the necessary consents, approvals, and releases (collectively, the “ Westridge Releases ”) to release the liens under the CMBS Loan Documents and convey Westridge to Purchaser. If, as of the Closing Date, Seller and Ventas Finance I, LLC shall not have obtained the Westridge Releases, then Purchaser and Seller shall nevertheless proceed to Closing, but (i) at Closing, Seller and Ventas Finance I, LLC shall not convey Westridge to Purchaser, (ii) at Closing, Seller, Ventas Finance I, LLC and Purchaser shall not execute and deliver the Termination Agreement, the MOL Termination, the Master Lease Amendment or the Releases (as hereinafter defined) with respect to Westridge, (iii) at Closing, the Purchase Price shall be reduced by the amount allocated to Westridge as set forth on Exhibit B (the “ Westridge Purchase Price ”), and (iv) following Closing, this Agreement shall remain in full force and effect with respect to Westridge and thereafter, upon not less than five (5) business days’ prior

 

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written notice from Seller to Purchaser, Seller (and Ventas Finance I, LLC) and Purchaser shall consummate the purchase and sale of Westridge on the date specified in such notice, which date shall be no later than December 29, 2003 (the “ Westridge Closing ”); provided, however, that, if Seller has not delivered such notice to Purchaser as of December 22, 2003, then either Seller or Purchaser may terminate this Agreement with respect to Westridge by written notice to the other party, upon delivery of which notice, this Agreement shall terminate with respect to Westridge and neither party shall have any further obligations or liabilities to the other hereunder with respect to Westridge, except for those obligations and liabilities with respect to Westridge that expressly survive termination. At the Westridge Closing, if applicable, Purchaser shall pay to, or as directed by, Seller, the Westridge Purchase Price, and Purchaser and Seller shall execute, or cause to be executed, and deliver, or cause to be delivered, all of the documents and other items that would have been required to be executed and/or delivered at Closing had the Westridge Releases been received prior to the Closing Date.

 

6. Certain Representations and Warranties by Seller . Seller hereby represents and warrants to Purchaser that (a) this Agreement has been duly authorized, executed and delivered by Seller and is the legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, (b) the execution and delivery of this Agreement by Seller does not violate any provision of any agreement or judicial order to which Seller is a party or to which Seller or, to the best of Seller’s knowledge, the Property is subject, (c) all the documents to be delivered by Seller at Closing will, at Closing, be duly authorized, executed and delivered by Seller (and/or, if applicable, its affiliates), will be the legal, valid and binding obligations of Seller (and/or, if applicable, its affiliates), and be enforceable against Seller (and/or, if applicable, its affiliates) in accordance with their respective terms, and the execution and delivery thereof will not violate any provision of any agreement or judicial order to which Seller (and/or, if applicable, its affiliates) is a party or, to the best of Seller’s knowledge, to which the Property is subject, (d) Seller has not entered into any agreement to sell all or any portion of the Property (other than to Purchaser, in certain limited circumstances as described in the Master Leases), (e) to the best of Seller’s knowledge, and except as otherwise expressly provided herein, Seller is not required to obtain the consent of any ground lessor, lender or other person or entity to the Transactions hereby contemplated, (f) within the past 125 days, no lienable repair, alteration, improvement, work, brokerage or service of any kind has been performed or materials supplied for or to the Property at Seller’s (or, in the case of Westridge, Ventas Finance I, LLC’s) direction, except for such lienable repairs, alterations improvements, work, brokerage or services as have been paid for by Seller or Ventas Finance I, LLC or for which, by the terms of the Master Leases, Purchaser is obligated to reimburse Seller or Ventas Finance I, LLC, and (g) there exists no judgment against Seller that is a lien against the Property (other than any such judgment as to which by the terms of the Master Leases or the 1998 Plan of Reorganization referenced therein or documents executed pursuant to such plan, Seller or Ventas Finance I, LLC is entitled to be indemnified by Purchaser); provided, however, that, relative to, and in limitation of, the foregoing representations and warranties, Purchaser acknowledges that (i) the Lender Approval is required, and that, as of the date hereof, the Lender Approval has not been obtained and (ii) with respect to the conveyance of Westridge, the Westridge Releases are required, and that, as of the date hereof, the Westridge Releases have not been obtained. All representations and warranties made by Seller in this Section 6 shall be true and correct on the date made and their continued

 

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validity as to any material fact as of the Closing Date shall be a condition precedent to Purchaser’s obligation to close the Transactions hereby contemplated, and at the Closing, Seller shall execute and deliver to Purchaser a certification that its representations and warranties contained in this Section 6 remain true and correct in all material respects as of the Closing Date, except insofar as any such representation or warranty is no longer true or correct due to the acts or omissions of Purchaser or to the obtaining, after the date hereof, of knowledge not known to Seller as of the date hereof.

 

7. Certain Representations and Warranties of Purchaser . Purchaser hereby represents and warrants to Seller as follows:

 

(a) (i) This Agreement has been duly authorized, executed and delivered by Purchaser and is the legal, valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms, (ii) the execution and delivery of this Agreement by Purchaser does not violate any provision of any agreement or judicial order to which Purchaser is a party or to which Purchaser or, to the best of Purchaser’s knowledge, the Property is subject, (iii) all the documents to be delivered by Purchaser at closing will, at closing, be duly authorized, executed and delivered by Purchaser (and/or, if applicable, its affiliates), will be the legal, valid and binding obligations of Purchaser (and/or, if applicable, its affiliates), and be enforceable against Purchaser (and/or, if applicable, its affiliates) in accordance with their respective terms, and the execution and delivery thereof will not violate any provision of any agreement or judicial order to which Purchaser (and/or, if applicable, its affiliates) is a party or, to the best of Purchaser’s knowledge, to which the Property is subject, and (iv) to the best of Purchaser’s knowledge, and except as otherwise expressly provided herein, Purchaser is not required to obtain the consent of any ground lessor, lender or other person or entity to the Transactions hereby contemplated; provided, however, that, relative to, and in limitation of, the foregoing representations and warranties, Seller acknowledges that the Lender Approval is required, and that, as of the date hereof, the Lender Approval has not been obtained.

 

(b) Upon Closing of the Transactions, Purchaser intends to hold the healthcare facilities comprising the Property for the purpose of disposing of them, and only until they are disposed of, in one or more sale transactions, in a manner consistent with that certain letter, dated as of October 29, 2003, sent on behalf of Purchaser to Michael B. Verne, Esq. of the Federal Trade Commission relative to the Transactions, which letter is attached hereto as Exhibit N . During the interim period prior to completion of such disposition(s), Purchaser will (i) continue to operate such healthcare facilities and/or (ii) lease such healthcare facilities to a third party that will operate them.

 

All representations and warranties made by Purchaser in this Section 7 shall be true and correct on the date made and their continued validity as to any material fact as of the Closing Date shall be a condition precedent to Seller’s obligation to close the Transactions hereby contemplated, and at the Closing Purchaser shall execute and deliver to Seller a certification that its representations and warranties contained in this Section 7 remain true and correct in all material respects as of the Closing Date, except insofar as any such representation or warranty is

 

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no longer true or correct due to the acts or omissions of Seller or to the obtaining, after the date hereof, of knowledge not known to Purchaser as of the date hereof.

 

8. [ Intentionally Omitted ].

 

9. Closing . Subject to the terms of Section 5(c) with respect to Westridge, the closing of the sale of the Property and the amendment of the Master Leases pursuant to the Master Lease Amendments (“ Closing ”) shall take place at 10:00 a.m. (New York time) at the office of Cleary Gottlieb Steen & Hamilton at One Liberty Plaza, New York, New York or at another place mutually agreed upon by the parties, on a date (“ Closing Date ”) not later than December 10, 2003; provided, however, that, notwithstanding the foregoing or anything to the contrary contained in this Agreement, and subject to the terms of Section 5(c) with respect to Westridge, in the event the Closing has not occurred by December 10, 2003, Seller or Purchaser may, at its option, provided and on the condition that the failure of such Closing to occur by such date is not due to a default by it in the performance of its obligations under this Agreement, elect to terminate this Agreement by delivery of written notice of termination to the other party, upon which delivery, this Agreement shall immediately terminate, the Earnest Money shall be retained by Seller, Purchaser shall pay to Seller, not later than December 11, 2003, the Break-Up Fee, and neither Purchaser nor Seller shall have any further obligations or liabilities hereunder except for those obligations and liabilities that expressly survive termination; provided, however, that, if the failure of the Closing to occur by December 10, 2003 is due to a default by Seller in the performance of its obligations under this Agreement, the Earnest Money shall be returned to Purchaser and Purchaser shall have no liability to Seller for the Break-Up Fee. Notwithstanding the foregoing, the parties need not attend the Closing in person and shall have the right to close the transaction contemplated by this Agreement pursuant to written closing escrow instructions, so long as such instructions are consistent with the terms hereof.

 

(a) Seller Closing Documents . At the Closing, Seller shall, subject to the terms of Section 5(c) , execute and deliver, or cause to be executed and delivered, to Purchaser the following documents:

 

(i) With respect to each of the properties described on Exhibit A that is located in Massachusetts, a deed in the form of Exhibit C (collectively, the “ Massachusetts Deeds ”) in favor of Kindred or, at the written request of Purchaser, in favor of an affiliate of Kindred;

 

(ii) With respect to the property described on Exhibit A that is located in Michigan, a deed in the form of Exhibit D (the “ Michigan Deed ”) in favor of Kindred or, at the written request of Purchaser, in favor of an affiliate of Kindred;

 

(iii) With respect to the property described on Exhibit A that is located in Minnesota, a deed in the form of Exhibit E (the “ Minnesota Deed ”) in favor of Kindred or, at the written request of Purchaser, in favor of an affiliate of Kindred;

 

(iv) With respect to each of the properties described on Exhibit A that is located in Connecticut, a deed in the form of Exhibit F (collectively, the “ Connecticut

 

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Deeds ”) in favor of Kindred or, at the written request of Purchaser, in favor of an affiliate of Kindred;

 

(v) With respect to the property described on Exhibit A that is located in Kentucky, a deed in the form of Exhibit G (the “ Kentucky Deed ”) in favor of Kindred or, at the written request of Purchaser, in favor of an affiliate of Kindred;

 

(vi) With respect to the property described on Exhibit A that is located in Wisconsin, a deed in the form of Exhibit H (the “ Wisconsin Deed ”, and together with the Massachusetts Deeds, the Michigan Deed, the Minnesota Deed, the Connecticut Deeds, and the Kentucky Deed, collectively, the “ Deeds ”) in favor of Kindred or, at the written request of Purchaser, in favor of an affiliate of Kindred;

 

(vii) A certification of non-foreign status in the form of Exhibit I ;

 

(viii) Partial Lease Termination Agreements in the form of Exhibits J-1 , J-2 , J-3 , and J-4 (collectively, the “ Termination Agreements ”), executed in counterpart by Seller, or, in the case of the Termination Agreement regarding the CMBS Master Lease, by Ventas Finance I, LLC;

 

(ix) A Termination of Memorandum of Lease with respect to each of the properties listed on Exhibit A , in substantially the form of Exhibit K (collectively, the “ MOL Terminations ”), executed in counterpart by Seller or, in the case of the MOL Termination in respect of Westridge, by Ventas Finance I, LLC;

 

(x) Amendments to each of the Master Leases in the form of Exhibits L-1 , L-2 , L-3 , L-4 , and L-5 (collectively, the “ Master Lease Amendments ”), executed in counterpart by Seller, or in the case of the Master Lease Amendment of the CMBS Master Lease, by Ventas Finance I, LLC;

 

(xi) With respect to each of the properties described on Exhibit A , a Bill of Sale and Assignment in the form of Exhibit M , in favor of Kindred, or, at the written request of Purchaser, in favor of one or more affiliates of Kindred and, if and to the extent Seller or Ventas Finance I, LLC owns and possesses any of the “Personal Property” referenced therein, Seller or Ventas Finance I, LLC shall deliver (or cause the delivery of) the same to Kindred or such affiliate(s);

 

(xii) A legal opinion executed by Seller’s internal counsel, in form and substance reasonably acceptable to Purchaser, opining that this Agreement and the documents executed and delivered by Seller and, if applicable, its affiliates pursuant to the terms of this Agreement have been duly authorized, executed and delivered by, and are legal, valid and binding obligations of, such signatory(ies); and

 

(xiii) (x) Duly executed (as applicable) releases of any mortgages, financing statements and other instruments recorded with respect to the Property and that secure borrowed indebtedness of Seller or Ventas Finance I, LLC under (a) that certain Second

 

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Amended and Restated Credit, Security and Guaranty Agreement, dated as of April 17, 2002, by and among Seller, Bank of America, N.A., as Administrative Agent, and certain lenders and guarantors listed therein or (b) that certain CMBS Loan Agreement, dated as of December 12, 2001, by and between Ventas Finance I, LLC and Merrill Lynch Mortgage Lending, Inc. (collectively, the “ Releases ”) or (y) evidence reasonably satisfactory to Purchaser that, upon payment of the Purchase Price in the manner directed by Seller, the Releases shall be delivered by the lender thereunder or an escrowee on its behalf to Purchaser.

 

(b) Purchaser Closing Documents . At the Closing, Purchaser shall, subject to the terms of Section 5(c) , execute and deliver, or cause to be executed and delivered, to Seller the following documents:

 

(i) the Termination Agreements, executed in counterpart by Purchaser and consented to, in counterpart, by each of Purchaser’s Lenders;

 

(ii) the MOL Terminations, executed in counterpart by Purchaser;

 

(iii) the Master Lease Amendments, executed in counterpart by Purchaser and consented to, in counterpart, by each of Purchaser’s Lenders; and

 

(iv) a legal opinion executed by Purchaser’s internal counsel, in form and substance reasonably acceptable to Seller, opining that this Agreement and the documents executed and delivered by Purchaser and, if applicable, its affiliates pursuant to the terms of this Agreement have been duly authorized, executed and delivered by, and are legal, valid and binding obligations of, such signatory(ies).

 

(c) Amounts to be Paid at Closing . At the Closing, Purchaser shall pay to, or as directed by, Seller, by federally insured wire transfer, the total amount of the Purchase Price minus the amount of the Earnest Money, which Earnest Money shall be credited against the Purchase Price and retained by Seller. In addition to the Purchase Price, and as a condition to Seller’s obligation to close, Purchaser shall pay to, or as directed by, Seller the lease termination fees required to be paid by Purchaser pursuant to the terms of the Termination Agreements.

 

(d) Further Assurances . Seller and Purchaser shall (and, in the case of Westridge, Seller shall cause Ventas Finance I, LLC to), at the Closing, and from time to time thereafter, upon request, execute such additional documents as are reasonably necessary in order to convey, assign and transfer the Property pursuant to this Agreement and otherwise complete the Transactions contemplated by this Agreement, provided that such documents are consistent with the terms of this Agreement, and do not increase Seller’s (or Ventas Finance I, LLC’s) or Purchaser’s obligations hereunder or subject Seller (or Ventas Finance I, LLC) or Purchaser to additional liability not otherwise contemplated by this Agreement. Additionally, if this Agreement is terminated, either party may request from time to time thereafter confirmation of such termination from the other party, upon which request, the non-requesting party shall promptly confirm to the requesting party in writing (by a recordable instrument if requested by the requesting party) that this Agreement has been terminated.

 

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(e) Cooperation . Purchaser has informed Seller that, after the Closing, Purchaser intends to attempt to sell or lease the Property to one or more third parties (any such third party, a “ Subsequent Purchaser/Lessee ”). Seller agrees (and, in the case of Westridge, Seller agrees to cause Ventas Finance I, LLC) to provide reasonable cooperation to Purchaser with respect to the foregoing transactions, provided and on the conditions that any such cooperation shall (i) be at no cost or expense to Seller or Ventas Finance I, LLC, (ii) not expand or increase Seller’s (or Ventas Finance I, LLC’s) covenants, representations, warranties, indemnities, obligations, duties or liabilities under this Agreement or any document delivered hereunder, (iii) not subject Seller or Ventas Finance I, LLC to additional liability, covenants, representations, warranties, indemnities, obligations or duties not otherwise contemplated hereby, (iv) not require Seller or Ventas Finance I, LLC to make any representation, warranty, covenant, agreement or indemnity that is inconsistent with, or broader in scope than, the representations, warranties, covenants, agreements and indemnities contained in this Agreement or the exhibits hereto, (v) not delay the Closing Date, and (vi) be subject to the understanding and agreement of Purchaser, which understanding and agreement is hereby acknowledged by Purchaser, that Seller’s and Ventas Finance I, LLC’s cooperation (x) shall not prejudice any rights Seller, Ventas Finance I, LLC, or Purchaser may have under the Master Leases, including, without limitation, in the case of Seller and Ventas Finance I, LLC, any rights Seller or Ventas Finance I, LLC may have under the Master Leases to disapprove of, or take other steps to oppose or prevent the consummation of, any sublease transaction(s) that Purchaser may desire to enter into with any of the Subsequent Purchaser/Lessees, and (y) shall not be used by Purchaser as evidence in any dispute between Seller or Ventas Finance I, LLC and Purchaser involving any proposed sublease transaction(s) with any of the Subsequent Purchaser/Lessees. Any instrument or document that Seller or Ventas Finance I, LLC may be asked to execute and/or deliver under this Section 9(e) shall be in such form as Seller and Ventas Finance I, LLC shall deem appropriate, in its sole and absolute discretion.

 

10. Prorations and Adjustments .

 

Purchaser and Seller hereby acknowledge and agree that there shall be no prorations or adjustments at Closing to the Purchase Price or to any amounts required to be paid at the Closing pursuant to the Termination Agreements.

 

11. Closing Costs .

 

(a) Seller shall be responsible for the payment of the fees and costs of Seller’s counsel and investment advisors representing it in connection with the Transactions.

 

(b) Purchaser shall be responsible for the payment of (i) the fees and costs of Purchaser’s counsel and investment advisors representing it in connection with the Transactions, and (ii) subject to subsection (a) above, all recording fees, transfer taxes, intangible taxes, documentary stamp taxes and title insurance costs, and all other fees, costs and expenses, incurred by either Seller (or Ventas Finance I, LLC) or Purchaser in connection with the Transactions. At Seller’s request, Purchaser shall pay at Closing all of the fees, taxes, costs and expenses referenced in Section 11(b)(ii) hereof.

 

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12. Remedies .

 

(a) Purchaser Default .

 

(i) If Purchaser fails to perform any of its obligations under this Agreement which are required to be performed at or prior to the Closing (including, without limitation, the payment of the balance of the Purchase Price and the payment of any amounts required to be paid by the terms of the Termination Agreements) (“ Purchaser Default ”), then Seller shall have the right, as its sole and exclusive remedy for such failure, to terminate this Agreement by delivering written notice thereof to Purchaser, in which event, the Earnest Money shall be retained by, and the Break-Up Fee shall be immediately paid by Purchaser to, Seller as liquidated damages. SELLER AND PURCHASER AGREE THAT SELLER’S ACTUAL DAMAGES IN THE EVENT OF A PURCHASER DEFAULT ARE UNCERTAIN AND DIFFICULT TO ASCERTAIN, AND THAT THE EARNEST MONEY, TOGETHER WITH THE BREAK-UP FEE, IS A REASONABLE ESTIMATE OF SELLER’S DAMAGES.

 

SELLER’S INITIALS: TRR PURCHASER’S INITIALS: JLL

 

(ii) Notwithstanding the foregoing, in the event the Closing hereunder occurs and Purchaser fails to perform an obligation under this Agreement (arising either before or after the Closing) and such obligation expressly survives the Closing pursuant to the terms hereof, then Seller shall have all rights and remedies at law, in equity or under this Agreement, including, without limitation, the right to sue for damages (excluding, however, special, punitive or consequential damages).

 

(b) Seller Default .

 

(i) If Seller fails to perform any of its obligations under this Agreement which are required to be performed at or prior to the Closing (including, without limitation, the delivery of the Deeds), then Purchaser shall have the right, as its sole and exclusive remedy for such failure, to either (x) terminate this Agreement by delivering written notice thereof to Seller, in which event the Earnest Money shall be promptly returned to Purchaser and neither party shall have any further obligations or liabilities hereunder except for those liabilities and obligations that expressly survive termination, or (y) specifically enforce the terms of this Agreement.

 

(ii) Notwithstanding the foregoing, in the event the Closing hereunder occurs and Seller fails to perform an obligation under this Agreement (arising either before or after the Closing) and such obligation expressly survives the Closing pursuant to the terms hereof, then Purchaser shall have all rights and remedies available at law, in equity or under this Agreement, including, without limitation, the right to sue for damages (excluding, however, special, punitive or consequential damages).

 

(c) Collection Costs . If any legal action, arbitration or other similar proceeding is commenced to enforce or interpret any provision of this Agreement, the prevailing

 

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party shall be entitled to an award of its attorneys’ fees and expenses. The phrase “prevailing party” shall include a party who receives substantially the relief desired whether by dismissal, summary judgment, judgment or otherwise. In the event that Seller is entitled to an award of its attorneys’ fees and expenses pursuant to the terms of this Section 12(c) , such award shall be in addition to the liquidated damages to which Seller may be entitled pursuant to the terms of Section 12(a) above.

 

(d) Survival .

 

(i) Closing . None of the terms and conditions of this Agreement shall survive the Closing, except Sections 2(b) , 4 , 6 , 7 , 9(d), 9(e), 10, 11, 12, 13, 14, 15 and 16 .

 

(ii) Termination . None of the terms and conditions of this Agreement shall survive the termination of this Agreement, except Sections 4, the third sentence of 5(b), 6, 7, 9(d), 9(e), 11 , 12 , 13 , 15(b) and 16 .

 

(e) Relation to Master Leases . Without limitation of Section 15 below, Seller and Purchaser agree that the remedies described in this Agreement, including, without limitation, the liquidated damages remedies referenced above, (i) constitute remedies of the parties under this Agreement only in their respective capacities as Seller and Purchaser hereunder, (ii) shall not constitute, or be deemed to constitute, remedies under any of the Master Leases, (iii) shall not preclude any party to any of the Master Leases from exercising any right or remedy available to it under any of the Master Leases (even if remedies are enforced or collected upon under this Agreement), and (iv) shall not limit the damage remedies or other rights or remedies of any party to any of the Master Leases under any of the Master Leases (even if remedies are enforced or collected upon under this Agreement) and that the determination by Seller or Purchaser of whether or not, based upon the occurrence of certain events or the existence of certain circumstances, a default by the other party has occurred under this Agreement shall be made independently of, and have no bearing or impact upon, the determination by a party to one of the Master Leases of whether or not, based upon the same events or circumstances, a default by another party to such Master Lease has occurred under such Master Lease.

 

13. Brokers . Each of Seller and Purchaser represents to the other that it has not engaged or dealt with any broker, finder or investment advisor in connection with the sale of the Property or the other Transactions contemplated by this Agreement other than investment advisor(s) retained by it and covenants to pay any fees or other amounts owing to its investment advisor(s) on account of this Agreement or the Transactions. Seller and Purchaser shall indemnify, hold harmless and defend the other, its affiliates, and its and their officers, directors, affiliates, agents and employees, against and from all claims, demands, causes of action, judgments, and liabilities (including, without limitation, reasonable attorneys’ fees and costs) which arise from a breach of such parties’ respective representations and covenants set forth in this Section 13 .

 

14. Casualty and Condemnation . If, prior to Closing, any of the Improvements are damaged or destroyed, or a condemnation proceeding is commenced against any part of the Property (“ Casualty or Condemnation ”), then at the Closing, Seller shall pay (or, in the case of

 

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Westridge, cause Ventas Finance I, LLC to pay) to Purchaser all insurance proceeds and condemnation awards, if any, paid to Seller (or, in the case of Westridge, Ventas Finance I, LLC) in connection with such Casualty or Condemnation which have not been used to restore the Property, and Seller (or, in the case of Westridge, Ventas Finance I, LLC) shall assign to Purchaser all of its right, title and interest in any insurance proceeds or condemnation awards to be paid to it in connection with the Casualty or Condemnation.

 

15. Certain Warranties; Disclaimer and Release .

 

(a) Notwithstanding anything to the contrary contained in this Section 15 , the purchase, sale and conveyance of the Property shall be made with the limited warranties to Purchaser contained in the Deeds.

 

(b) Disclaimer . Purchaser agrees that Purchaser is purchasing the Property in “AS IS”, “WHERE IS”, “WITH ALL FAULTS” condition, and, subject to Section 6 above and to Section 15(a) above, without any warranties, representations or guarantees, either express or implied, of any kind, nature, or type whatsoever from, or on behalf of, Seller. Without in any way limiting the generality of the immediately preceding sentence, Purchaser further acknowledges and agrees that, in entering into this Agreement and closing the Transactions hereunder, subject to Section 6 above and to Section 15(a) above:

 

(i) Each of Seller and its affiliates, and its and their officers, directors, employees and agents, expressly disclaims, has not made, will not, and does not, make, any warranties or representations, express or implied, with respect to the Property or any portion thereof, the physical condition or repair or disrepair thereof, the value, profitability or marketability thereof or the title thereto, or of any of the appurtenances, facilities or equipment thereon;

 

(ii) Each of Seller and its affiliates, and its and their officers, directors, employees and agents, expressly disclaims, has not made, will not, and does not, make, any warranties, express or implied, of merchantability, habitability or fitness for a particular use;

 

(iii) As the tenant at the Property, Purchaser has had complete and sole possession of the Property since, at the latest, May 1, 1998, and has accordingly had the opportunity to perform a full investigation of the Property prior to the date hereof, and Purchaser is fully satisfied with its opportunity to investigate the Property prior to the date hereof;

 

(iv) Purchaser has not relied upon any statement or representation by or on behalf of Seller unless such statement or representation is specifically set forth in this Agreement; and

 

(v) As of the date hereof, Purchaser has made such legal, factual and other inquiries and investigations as Purchaser has deemed necessary, desirable or appropriate with respect to the Property and the value and marketability thereof and of the appurtenances, facilities and equipment thereof. Such inquiries and investigations of Purchaser are hereby deemed to include, without limitation, the physical components of all portions of the

 

11

Improvements, the condition of repair of the Property or any portion thereof, such state of facts as a current title report and/or an accurate survey would show or disclose, and the present and future zoning, ordinances, resolutions and regulations of the city, county and state where the Improvements are located.

 

(c) Release . Without in any way limiting the generality of the preceding Section 15(b) , Purchaser specifically acknowledges and agrees that it hereby waives, releases and discharges any claim it has, might have had, or may have, against each of Seller and its affiliates, and its and their officers, directors, employees and agents, relating to, arising out of or with respect to (i) the condition of the Property, either patent or latent, (ii) Purchaser’s ability, or inability, to obtain or maintain temporary or final certificates of occupancy or other licenses for the use or operation of the Improvements, and/or certificates of compliance for the Improvements, (iii) the actual or potential income, or profits, to be derived from the Property, (iv) the real estate, or other, taxes or special assessments, now or hereafter payable on account of, or with respect to, the Property, (v) Purchaser’s ability or inability to demolish the Improvements or otherwise develop the Property, (vi) the environmental condition of the Property, (vii) any default or alleged default by Seller or its affiliates with respect to the Property under any of the leases pursuant to which Seller or Ventas Finance I, LLC leased the Property to Purchaser, including without limitation, any default or alleged default regarding the granting or withholding of Seller’s or Ventas Finance I, LLC’s consent to any proposed sublease(s) with respect to all or any portion of the Property or the obtaining of any required governmental licenses, permits or approvals in connection with any such proposed sublease(s), or (viii) any other matter relating to the Property.

 

16. General Provisions .

 

(a) Entire Agreement . This Agreement and exhibits hereto constitute the entire agreement of Seller and Purchaser with respect to sale of the Property and amendment of the Master Leases pursuant to the Master Lease Amendments and supersede all prior or contemporaneous written or oral agreements, whether express or implied, related to the subject matter hereof.

 

(b) Amendments . This Agreement may be amended only by a written agreement executed and delivered by Seller and Purchaser.

 

(c) Waivers . No waiver of any provision or condition of, or default under, this Agreement by any party shall be valid unless in writing signed by such party. No such waiver shall be taken as a waiver of any other or similar provision or of any future event, act, or default.

 

(d) Time . Time is of the essence of this Agreement. In the computation of any period of time provided for in this Agreement or by law, the day of the act or event from which the period of time runs shall be excluded, and the last day of such period shall be included, unless it is not a Business Day, in which case it shall run to the next day which is a Business Day. For the purpose of this Agreement, the term “ Business Day ” means any day other than (i)

 

12

Saturday, (ii) Sunday, or (iii) any other day when federally insured banks in Chicago, Illinois or New York, New York are required or authorized to be closed.

 

(e) Unenforceability . In the event that any provision of this Agreement shall be unenforceable in whole or in part, such provision shall be limited to the extent necessary to render the same valid, or shall be excised from this Agreement, as circumstances require, and this Agreement shall be construed as if said provision had been incorporated herein as so limited, or as if said provision has not been included herein, as the case may be.

 

(f) Assignment . This Agreement may not be assigned by Purchaser or Seller without the prior express written consent of the other party, which consent may be given or withheld in such party’s sole and absolute discretion.

 

(g) Notices . Any notices or other communications permitted or required to be given hereunder shall be in writing, shall be delivered personally, by reputable overnight delivery service, or by fax (provided a hard copy is delivered on the next Business Day by personal delivery or reputable overnight delivery service), and shall be addressed to the respective party as set forth in this Section 16(g) . All notices and communications shall be deemed given and effective upon receipt thereof.

 

 

13

 

(h) Governing Law . This Agreement shall be governed in all respects by the internal laws of the Commonwealth of Kentucky without regard to the laws regarding conflicts of laws.

 

(i) Counterparts . This Agreement may be executed in any number of identical counterparts, any or all of which may contain the signatures of less than all of the parties, and all of which shall be construed together as a single instrument.

 

(j) Construction . Seller and Purchaser agree that each party and its counsel have reviewed and approved this Agreement, and that any rules of construction that provide that ambiguities be resolved against the drafting party shall not be used in the interpretation of this Agreement or any amendments or exhibits hereto. The words “include”, “including”, “includes” and any other derivation of “include” means “including, but not limited to” unless specifically set forth to the contrary. As used in this Agreement, the neuter shall include the feminine and masculine, the singular shall include the plural, and the plural shall include the singular, except where expressly provided to the contrary. The words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, subsection or other subdivision. Headings of sections herein are for convenience of reference only, and shall not be construed as a part of this Agreement. Except to the extent expressly provided otherwise in this Agreement, references to “sections” or “subsections” in this

 

14

Agreement shall refer to sections and subsections of this Agreement, and references to “exhibits” in this Agreement shall mean exhibits attached to this Agreement.

 

(k) No Recording . Purchaser shall not, and shall not cause or permit any other person to, record this Agreement or any memorandum or other evidence thereof in any public records. If Purchaser violates the terms of this Section 16(k) , then this Agreement shall be deemed ipso facto terminated and the Earnest Money shall be retained by Seller, and Purchaser shall immediately pay to Seller the Break-Up Fee.

 

(l) Obligations Joint and Several . Purchaser acknowledges that each entity constituting Purchaser shall be jointly and severally liable for any and all obligations of Purchaser hereunder or under any instrument executed by Purchaser pursuant hereto.

 

(m) Public Announcement . Seller and Purchaser agree to cooperate with each other to make joint and/or coordinated public announcements disclosing this Agreement and the Transactions contemplated hereby.

 

(n) Form of Payment . All amounts required to be paid by Purchaser to, or as directed by, Seller pursuant to the terms hereof (including, without limitation, if applicable, the Break-Up Fee) shall, unless otherwise directed by Seller in writing, be paid by federally insured wire transfer of immediately available funds. Payments required by the terms hereof to be made on a particular date shall be deemed to have been timely made if Seller (or any alternate payee designated by Seller) receives such payment in the account specified in the wire transfer instructions, to be provided to Purchaser by Seller, not later than 5:00 p.m. Chicago time on the date specified for such payment.

 

[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]

 

15

IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first above written.

 

 

 

 

S-1

EXHIBIT A

 

LAND

 

A-1

Facility # 565

 

CT

 

SCHEDULE A

THE LAND

 

A certain piece or parcel of land with all buildings and improvements thereon situated in the Town of Norwich, County of New London and State of Connecticut, more particularly described as follows:

 

Beginning at a point on the southerly line of Hamilton Avenue. In Said Town of Norwich and a concrete Monument set by the Highway Department, and from said point,

 

thence running S 32° 31° E 130. 3 feet to a drill hole in a wall;

 

thence S 45° 14° W 183 feet to a monument, the last two lines bounded southwesterly and northwesterly by land N/F of Vera C. Edwards,

 

thence S 57° 52° W 54.2 feet to a monument, this line bounded northwesterly on land N/F of Everest A. and Eve R. Higgins.

 

thence S 65° 04 E 412.57 feet;

 

thence running Northeasterly in a straight line,

 

400 feet more or less to land N/F of Faith R. Jennings at a point which is 426.58 feet south of the southerly line of Corning Road is measured along the easterly side of the premises herein described:

 

thence W 26° 07° W 166.1 feet;

 

thence N 27° 12° W 130.6 feet;

 

thence northwesterly 129.88 feet to a drill hole in a boulder on the southerly line of Corning Road, the last three lines bounding north-easterly on land N/F of Faith R. Jennings;

 

thence S 77° 04 W 85.25 feet to a Connecticut Highway Department Stone, this line following along the southerly line of Corning Road;

 

thence S 57° 59° W 181.52 feet to a concrete monument act by the Connecticut Highway Department:

 

thence S 59° 23° W 181.33 feet to the point of beginning: the last 2 lines following along the South line of Hamilton Avenue.

 

Together with a right of way as set forth in a deed from Quinting F. Larangeire and Lucy Marie Larangeire to Israel M. Resnikoff dated February 28, 1967 and recorded in Volume 342, Page 99 of the Norwich Land Records.

 

Together with a right of way as set forth in a deed from James M. Young to Albert F. Myers dated July 5, 1921 and recorded in Volume 163, Page 205 of the Norwich Land Records.

 

Facility # 1226

 

CT

 

SCHEDULE A

THE LAND

 

All that certain tract, piece or parcel of land situate, lying and being in the City of Stamford, County of Fairfield and State of Connecticut, said parcel of land being more particularly bounded and described as follows:

 

Beginning at a point on the westerly street line of Glenbrook Road, where the same is intersected by the division line between the parcel herein described and land now or formerly of Zion Lutheran Church U.A.C., and being the southeasterly corner of the premises herein described, then running along land of said Zion Lutheran Church the following courses:

 

       North 84-41-20 West, a distance of 242.04 feet;

 

       North 74-21-30 West, a distance of 70.00 feet;

 

       North 12-18-30 East, a distance of 45.03 feet;

 

and North 81-18-10 West, a distance of 25.05 feet;

 

then turning and continuing along land of said Zion Lutheran Church, to and along land now or formerly of Francis Ferro Et Al, North 12-18-30 East; a distance of 50.00 feet to land of various owners; then turning and running along land of said various owners North 88-06-35 East, a distance of 352.25 feet to the westerly street line of Glenbrook Road; then turning and running along Glenbrook Road, South 5-16-40 West, a distance of 66.71 feet; then along a circular curve to the right having a radius of 153.86 feet, and arc-distance of 48.467 feet; then on another circular curve to the right, having a radius of 177.533 feet, an arc-distance of 42.115 feet, to the point or place of beginning, containing 1.0032 Acres, more or less.

 

Facility # 783

KY

 

SCHEDULE A

THE LAND

 

BEING all of Lot No. 6 of the Storey Business Subdivision to the City of Lexington, as shown by plat of record in Plat Cabinet C, Slide 499 in the Fayette County Clerk’s Office; the improvements being known as 353 Waller Avenue.

 

BEING the same property conveyed to NHE/KENTUCKY, INC., a Kentucky corporation by deed dated August 25, 1972, of record in Deed Book 1057, Page 462, in the Fayette County Court Clerk’s Office, and further conveyed to First Healthcare Corporation, a Delaware corporation by deed dated August 23, 1993 of record in Deed Book 1691, Page 87, in the Fayette County Clerk’s Office.

 

MA523

 

SCHEDULE A

THE LAND

 

Property: 1100 VFW Parkway, W. Roxbury, MA

Facility Name: Star of David Nursing Center

Facility Number: 523

 

TRACT I

 

PARCEL I

 

That certain parcel of registered land situated in that Part of Boston, formerly West Roxbury, in the County of Suffolk and Commonwealth of Massachusetts, bounded and described as follows:

 

WESTERLY by the easterly line of Veterans of Foreign Wars Parkway, (the Commonwealth of Massachusetts, M.D.C.), ten (10) feet;

 

SOUTHERLY by the northerly line of said Veterans of Foreign Wars Parkway, fifty-three and 05/100 (53.05) feet;

 

WESTERLY by the easterly of said Veterans of Foreign Wars Parkway, two hundred forty-seven and 82/100 (247.82) feet;

 

NORTHERLY by the southerly side of Farragut Street and Ellswood Street, one hundred ninety-one and 41/100 (191.41) feet;

 

EASTERLY by land now or formerly of Sturdy Oak Homes, Inc., one hundred fifteen and 88/100 (115.88) feet;

 

NORTHERLY by land of sundry adjoining owners, four hundred thirteen and 44/100 (413.44) feet;

 

EASTERLY by the westerly line of Baker Street, twenty and 86/100 (20.86) feet;

 

SOUTHERLY by land of sundry adjoining owners, four hundred two and 02/100 (402.02) feet;

 

EASTERLY by land now or formerly of Charles A. Hoar et al, eighty-six (86) feet; and

 

SOUTHERLY by the northerly line of Durant Street, one hundred sixty and 18/100 (160.18) feet.

 

Facility # 523

 

SCHEDULE A

THE LAND

 

TRACT II

 

Two certain parcels of unregistered land.

 

PARCEL I

 

A certain parcel of unregistered land situated in that part of Boston, formerly West Roxbury, Suffolk County, Massachusetts, bounded and described as follows:

 

NORTHERLY by Ellswood street, 41.15 feet;

 

EASTERLY by Lot 110 as shown on the plan hereinafter described, 109.57 feet;

 

SOUTHERLY on land formerly of the Town of Brookline, now 1100 Corporation, 28.93 feet;

 

SOUTHWESTERLY by said last mentioned land, 56 feet; and

 

WESTERLY by said last mentioned land, 59.88 feet.

 

Said lot 131 is shown on a plan entitled “West Roxbury Plateau, August 29,1894, by Charles D. Elliot, Engineer, Somerville, Massachusetts” duly recorded with said Suffolk County Registry of Deeds at the end of Book 2224.

 

PARCEL II

 

A certain parcel of land situated in that part of Boston, formerly West Roxbury, Suffolk County, Massachusetts, bounded and described as follows:

 

SOUTHEASTERLY by Farragut Street, 40.25 feet;

 

NORTHEASTERLY by Lot 50 as shown on the plan hereinafter described, 90.45 feet;

 

NORTHWESTERLY by land of owners unknown, 40 feet; and

 

SOUTHWESTERLY by Lot 148 on said plan, 85 feet.

 

Said lot 149 is shown on a plan entitled “West Roxbury Plateau, August 29, 1894, by Charles D. Elliot, Engineer, Somervilla, Massachusetts”, duly recorded with Suffolk County Registry of Deeds at the end of Book 2224.

 

MA527

 

SCHEDULE A

THE LAND

 

Property: 150 Lincoln Street, Needham, MA

Facility Name: Briarwood Health Care Nursing Center

Facility Number: 527

 

The land situated in Needham, Norfolk County, Massachusetts, bounded and described as follows:

 

 

 

EXHIBIT A

 

The land shown on a plan of land entitled “Plan of Land in Marlborough, Mass, owned by Paul-Mark Management Corp.”, December 10, 1962, Nashoba. Survey Co., Inc., Marlborough, Mass., “123,465” recorded with the Middlesex South District Registry of Deeds, Book 10181, Page 61, bounded and described as follows:

 

BEGINNING at a point on the Northerly side of Northborough (Northboro) Road at the Southwest corner of the parcel to be conveyed and at other land of Paul-Mark Management Corp;

 

THENCE by a curve to the left in a Northwesterly direction with a radius of 32.43 feet and a distance along the course of 52.30 feet to a point of tangency;

 

THENCE North 40 degrees 90 minutes 22 seconds West a distance of 469,465 feet;

 

THENCE North 44 degrees 39 minutes 53 seconds East a distance of 193.77 feet; all three courses are by other land of Paul-Mark Management Corp.;

 

THENCE North 10 degrees 05 minutes 19 seconds East a distance of 319.70 feet by land of Malcola E. Wallace;

 

THENCE South 32 degrees 16 minutes 49 seconds East a distance of 234.47 feet by land of Basil and Jannie Carvary;

 

THENCE South 32 degrees 07 minutes 22 seconds East a distance of 196.5 feet;

 

THENCE South 21 degrees 32 minutes 31 seconds West a distance of 216.77 feet;

 

THENCE South 46 degrees 22 minutes 25 seconds East a distance of 55.45 feet to the Northerly line of Northborough Road, the last three courses are by land of Arthur and Alice Bastian;

 

THENCE South 60 degrees 57 minutes 54 seconds West a distance of 115.71 feet;

 

THENCE South 73 degrees 33 minutes 44 seconds West a distance of 7.35 feet;

 

THENCE South 51 degrees 22 minutes 52 seconds West a distance of 37.22 feet;

 

THENCE South 52 degrees 15 minutes 21 seconds West a distance of 40.315 feet to the point of beginning, the last four courses are by the Northerly line of Northborough Road.

 

PIN # 78-3A

 

MA - 538

 

EXHIBIT A

 

Lots 127, 128, 151, 152, and 153

 

the land in the West Roxbury District of Boston, Massachusetts, Suffolk County, being five certain lots all shown on a plan of land made by Charles E. Elliot, Engr., dated August 29, 1894, recorded with Suffolk

 

XXXXXXXXXXXXXXXXXXXX

 

Deeds Book 2224, Page is at the end of Book, to which plan reference is made for a more particular description to the following lots;

 

 

Lots 129 and 130

 

A certain parcel of land situated in that part of Boston called West Roxbury in the County of Suffolk and Commonwealth of Massachusetts and being lots numbered 129 and 130 as shown on a plan of land called ‘West Roxbury Pintoau’ by C. D. Elliott, Engineer, and recorded with the Suffolk County Registry of Deeds, Book 5016, page 31_, dated June 30, 1920, and bounded and described as follows:

 

 

Containing 8626.9 square feet, more or less.

 

MA - 538, cont.

 

EXHIBIT A

 

Lot 150

 

A certain parcel of vacant land containing about thirty-seven hundred twenty seven (3727) square feet of land on the northwesterly side of Farragut Street, adjoining an estate now or formerly of Albert C. Smith, being lot one hundred and fifty (150) Charles D. Elliot plan dated August 29, 1894, recorded with Suffolk Deeds at end of Book 2224, situated in Block 98 A1, in the West Roxbury District.

 

Lots 154, 155 and 156

 

the following described parcels of land in Boston, Suffolk County, Massachusetts

 

DESCRIPTION:

 

Parcel No. 1

 

About four thousand thirty (4030) square feet of land on the northerly side of Farragut Street, adjoining another estate now or formerly of said Giorgio and others, being Lot one hundred fifty-four (154), Charles, D. Elliot plan, dated August 29, 1894, recorded with Suffolk Deeds, at End of Book 2224.

 

Parcel No. 2

 

About four thousand ten (4010) square feet of land on the north side of Farragut Street, adjoining another estate now or formerly of said Giorgio and others, being Lot one hundred fifty-five (155), Charles D. Elliot plan, dated August 29, 1894, recorded with Suffolk Deeds, at End of Book 2224.

 

Parcel No. 3

 

About thirty-nine hundred ninety (3990) square feet of land on the northerly side of Farragut Street, adjoining another estate now or formerly of said Giorgio and others, being Lot one hundred fifty-six (156), Charles D. Elliot, Engineer, plan, dated August 29, 1894 recorded with Suffolk Deeds, at End of Book 2224.

 

LESS AND EXCEPT LOTS 127, 128 AND 129 as were conveyed by Deed to Archdale Construction Corp. dated September 23, 1997 and recorded with the Suffolk County Registry of Deeds at Book 21759, Page 250.

 

Facility # 4677

MI

 

SCHEDULE A

THE LAND

 

HOSPITAL PARCEL:

 

Lots 5 and 6, including adjoining vacated public alley of “Ferdinand Morrel’s Subdivision”, as recorded in Liber 4 of Plats, Page 22, Wayne County Records; Lots 1 through 8 inclusive, together with adjoining vacated public alley of the “Subdivision of Lots 33, 34, 35, 39, and 40 of Johnson Subdivision”, as recorded in Liber 1 of Plats, Page 270, Wayne County Records; Lot 1, the North 13.2 feet of Lot 2 and the North 25.2 feet of Lots 5, 6, and 7, including adjoining vacated public alleys of “Neuman’s Subdivision” as recorded in Liber 7 of Plats, Page 9, Wayne County Records; Lots 86 through 93, inclusive, Lots 52 through 59, inclusive, and the North 40.00 feet of Lot 51, including adjoining vacated Humboldt Avenue (60 feet wide), also including vacated public alleys in the rear thereof of “Brandish and Hubbard’s Subdivision”, as recorded in Liber 1 of Plats , Page 133, Wayne County Records; the North 26 feet of Lots 1 through 5, inclusive, including, vacated Humboldt Avenue (60 feet wide) lying Westerly thereof, and that portion of the adjoining vacated public alleys lying Northerly and Easterly thereof of the “Subdivision of Lots 94 and 95 of Bradish and Hubbard’s Subdivision”, as recorded in Liber 12 of Plats, Page 37, Wayne County Records; Lot 51, Block 3, and Lots 33 through 44 inclusive, Block 3, including adjoining vacated public alley Westerly thereof of the “Plat of Weitzel Resubdivision”, as recorded in Liber 5 of Plats, Page 18, Wayne County Records; and Lot 58 of “Weitzel’s Plat”, as recorded in Liber 1 of Plats, Page 204, Wayne County Records, all being located in the City of Detroit, Wayne County, Michigan, and being more particularly described as follows:

 

Begining at the intersection of the Southerly line of Magnolia Street (50 feet wide) with the Westerly line of Eighteenth Street (60 feet wide), said point being also the Northeasterly, corner of Lot 58 of said “Weitzel’s Plat”, (Liber 1 of Plats, Page 204, Wayne County Records) and proceeding thence from said point of begining South 2 degrees 55 minutes 17 seconds East, along the Westerly line of said Eighteenth Street, said line being also the Easterly line of said Lot 58 and the Easterly line of Lots 44 through 35 inclusive, Block 3, the Easterly line of Lot 51, Block 3, and the Easterly line of Lots 34 and 33, Block 3, of said “Plat of Weitzel Resubdivision”, (Liber 5 of Plats, Page 18, Wayne County Records), a distance of 461.15 feet to the Southeasterly corner of said Lot 33; thence south 67 degrees 19 minutes 28 seconds West, along the Southerly line of said Lot 33, a distance of 145.00 feet to the Southwesterly corner of said Lot; thence South 22 degrees 55 minutes 17 seconds East, along part of the Westerly line of Lot 32, Block 3, of said “Plat of Weitzel Resubdivision”, a distance of 11.00 feet to a point on the Northerly line of Martin Luther King Jr. Boulevard (124 feet wide, as now established); thence South 67 degrees 26 minutes 04 seconds West, along the Northerly line of said Martin Luther King Jr. Boulevard, as now established, a measured distance of 646.85 feet (described 646.72 feet) to the point of intersection of said Street line with the Easterly line of Lawton Avenue (60 feet wide); thence North 23 degrees 09 minutes 27 seconds West, along the Easterly line of said Lawton Avenue, said line being also part of the Westerly line of Lot 2 and the Westerly line of Lot 1 of said “Neumann’s Subdivision” (Liber 7 of Plats, Page 9, Wayne County Records), the Westerly line of Lots 8 through 2 inclusive of the “Subdivision of Lots No. 33,34, 35, 39 and 40 of Johnston Subdivision”, (Liber 1 of Plats, Page 270, Wayne County Records) and the Westerly line of Lot 5 of said “Ferdinand Morrel’s Subdivision”, (Liber 4 of Plats, Page 22, Wayne County Records), a measured distance of 471.52 feet (described 470.85 feet) to the point of intersection of said Street line with the Southerly of said Magnolia Street; thence North 67 degrees 13 minutes 58 seconds East, along the Southerly line of said Magnolia Street, said line being also the Northerly line of Lots 5 and 6 of said “Ferdinand Morrel’s Subdivision”, the Northerly end of a vacated alley (20 feet wide) and the Northerly line of Lot 59 of said “Bradish and Hubbard’s Subdivision”, (Liber 1 of Plats, Page 133, Wayne County Records), a measured distance of 401.73 feet (recorded 401.28 feet) to the Northeasterly corner of said Lot 59; thence North 67 degrees 41 minutes 11 seconds East, continuing along the Southerly line of said Magnolia Street, said line being also the Northerly end of vacated Humboldt Avenue (60 feet wide), a distance of 60.00 feet to an angle point in said Street line; thence continuing along the Southerly line of said Magnolia Street, North 67 degrees 28 minutes 25 seconds East, said line being also the Northerly line of Lot 86 of said “Bradish and Hubbard’s Subdivision”, the Northerly end of a vacated alley (20 feet wide) and the Northerly line of said Lot 58 of said “Weitzel’s Plat”, a measured distance of 332.06 feet (recorded 330.78 feet) to the point of beginning.

 

SCHEDULE A

THE LAND

 

# 4677

 

PARKING LOT PARCEL:

 

Lots 492 through 508, Inclusive, part of Lot 491 including the vacated alley (20 foot wide) lying adjacent to said lots of the “Subdivision of Part of The Stanton Farm, Private Claim 473”, City of Detroit, Wayne County, Michigan as recorded in Liber 1 of Plats, Page 255, Wayne County Records, and being more particularly described as follows: Beginning at the intersection of the Southerly line of Magnolia Street (50 feet wide) with the Easterly line of Eighteenth Street (60 feet wide), said point being also the Northwesterly corner of Lot 500 of said “Subdivision of Part of The Stanton Farm, Private Claim 473”, (Liber 1 of Plats, Page 255, Wayne County Records), proceeding thence from said point of beginning North 67 degrees 24 minutes 22 seconds East, along the Southerly line of said Magnolia Street, said line being also the Northerly line of Lot 500, the Northerly end of a vacated alley (20 feet wide) and the Northerly line of Lot 501 of said subdivision, a distance of 323.10 feet to the point of intersection of said street line with the Westerly line of Seventeenth Street (60 feet wide), said point being also the Northeasterly corner of said Lot 501; thence South 22 degrees 50 minutes 07 seconds East, along the Westerly line of said Seventeenth Street, said line being also the Easterly line of Lots 501 through 508 inclusive of said Subdivision, a distance of 396.00 feet to the Southeasterly corner of said Lot 508; thence South 67 degrees 24 minutes 22 seconds West, along the Southerly line of said Lot 508 and its Westerly extension across the Southerly end of said vacated alley, a distance of 170.81 feet to the Northeasterly corner of Lot 492 of said Subdivision; thence South 22 degrees 59 minutes 15 seconds East, along the Westerly line of a public alley (20 feet wide), said line being also the Easterly line of Lot 492 and part of the Easterly line of Lot 491 of said Subdivision, a distance of 99.33 feet to the point of intersection of said alley line with the Northerly line of Martin Luther King Jr. Boulevard (124 feet wide) as now established; thence South 70 degrees 38 minutes 46 seconds West, along the Northerly line of said Martin Luther King Jr. Boulevard, as now established, a distance of 152.10 feet to the point of intersection of said Street line with the Easterly line of said Eighteenth Street; thence North 22 degrees 55 minutes 17 seconds West, along the Easterly line of said Eighteenth Street, said line being also part of the Westerly line of said Lot 491 and all of the Westerly line of Lots 492 through 500 inclusive of said Subdivision, a measured distance of 485.74 feet (described 486.06 feet) to the point of beginning.

 

SCHEDULE A

 

4659

MN

 

County of Hennepin, State of Minnesota

 

PARCEL 1:

 

Lot 6, Block 6, Hidden Lakes PUD No. 74, Hennepin County, Minnesota.

 

PARCEL 2:

 

Non-exclusive easements for roadway, ingress and egress, and signage over and across portions of Outlet A, Hidden Lakes PUD No. 74, as set forth in Easement Agreement dated August 11, 1997, filed February 13, 1998, as Document Number 2887297, Office of Registrar of Titles, Hennepin County, Minnesota.

 

(Tax Parcel No. for Parcel 1: 18-029-24-44-0015)

 

Facility # 772

WI

 

SCHEDULE A

THE LAND

 

Lots 16 through 22 inclusive, in Block 1, and all of Block 2, Riverhaven Subdivision, City of Wisconsin Rapids, Wood County, Wisconsin, according to the recorded plat;

 

AND

 

All that portion of South Strawberry Lane in Said Riverhaven Subdivision lying between the Easterly extension line of Lot 18, in Block 1, and the Westerly extension line of Lot 22, in Block 1, in said Subdivision, which portion of said roadway has been vacated by the City of Wisconsin Rapids, Wood County, Wisconsin.

 

Tax Key No. 34-05015

 

EXHIBIT B

 

PURCHASE PRICE ALLOCATION

 

 

B-1

EXHIBIT C

 

MASSACHUSETTS DEEDS

 

C-1

QUITCLAIM DEED WITH LIMITED WARRANTY

 

[Ventas Realty, Limited Partnership, a limited partnership] [Ventas Finance I, LLC, a limited liability company] duly established under the laws of the State of Delaware (“ Grantor ”) and having its usual place of business at: 4360 Brownsboro Road, Suite 115, Louisville, Kentucky 40207, for consideration paid, and in full consideration of $              , grants to                      , a                      duly established under the laws of the State of Delaware (“ Grantee ”) and having its usual place of business at                      , with no warranty covenants of any kind, except as specifically set forth below, the real estate described below:

 

[See Exhibit A attached hereto and made a part hereof]

 

Grantor does hereby warrant to Grantee that, as of the date of this conveyance, Grantor owned fee simple title to the subject real estate free and clear of any mortgage or other lien securing borrowed indebtedness of Grantor.

 

[Signature Page Follows]

 

In witness whereof, the said Grantor has caused these presents to be signed, acknowledged and delivered in its name and behalf by Ventas, Inc., a corporation duly incorporated in the State of Delaware, and the sole general partner of Grantor, this              day of              , 2003.

 

WITNESSES :						[ VENTAS REALTY, LIMITED PARTNERSHIP, a Delaware limited partnership
By:						By: Ventas, Inc., a Delaware corporation, its sole general partner]
						[ VENTAS FINANCE I, LLC, a Delaware limited liability company
						By:		Ventas Finance I, Inc., its sole member]
Printed Name:

 

						By:
By:						Name:
Printed Name:						Its:

 

The Commonwealth of Massachusetts

 

State of                                 

 

County of                             

 

Then personally appeared the above named              , the              of [Ventas, Inc.] [Ventas Finance I, Inc.], a Delaware corporation and the [general partner of Ventas Realty, Limited Partnership, a Delaware limited partnership] [sole member of Ventas Finance I, LLC, a Delaware limited liability company], and acknowledged the foregoing instrument to be the free act and deed of said corporation on behalf of said limited [partnership] [liability company] before me,

 

 

My commission expires                                          20     

 

EXHIBIT D

 

MICHIGAN DEED

 

D-1

COVENANT DEED

 

KNOW ALL MEN BY THESE PRESENTS THAT THE UNDERSIGNED, VENTAS REALTY LIMITED PARTNERSHIP, a Delaware limited partnership, whose post office address is 4360 Brownsboro Road, Suite 115, Louisville, Kentucky 40207, hereinafter called the Grantor, for and in consideration of the sum of Ten and no/100 Dollars ($10.00) and other valuable considerations, receipt which of is hereby fully acknowledged and confessed, has GRANTED, BARGAINED, SOLD and CONVEYED and by these presents does GRANT, BARGAIN, SELL and CONVEY unto                      , a                      , whose post office address is                      , hereafter called the Grantee, without warranty covenant (except as expressly provided below), all of Grantor’s right, title and interest, if any, in that certain land, situate in                      County, State of Michigan, described on Exhibit “A” attached hereto and made a part hereof, together with all the tenements, hereditaments and appurtenances thereto belonging or in anywise appertaining.

 

This deed is executed and delivered by the Grantor on a quitclaim basis and with no warranty of any kind or nature, except that the Grantor does hereby warrant to the Grantee that, at the time of this conveyance, the Grantor owned fee simple title to the subject property, free and clear of any mortgage or other lien securing borrowed indebtedness of the Grantor.

 

[SIGNATURE PAGE TO FOLLOW]

 

In witness whereof, the said Grantor has signed and sealed these presents the day and year first above written.

 

WITNESSES:

GRANTOR:

VENTAS REALTY, LIMITED PARTNERSHIP, a Delaware limited partnership

By:

Name:

(Witness name must be printed in black ink.)

By:

Name:

By:

Title:

Name:

(Witness name must be printed in black ink.)

 

Acknowledgments

 

STATE OF __________________		)
		)
COUNTY OF ________________		)

 

This instrument was acknowledged before me on              , 2003, by T. Richard Riney, Executive Vice President, General Counsel and Secretary of Ventas, Inc., a Delaware corporation, in its capacity as the general partner of Ventas Realty, Limited Partnership, a Delaware limited partnership, on behalf of the corporation, in its capacity as the general partner and on behalf of the aforesaid limited partnership.

 

 

[Seal, if any, of notarial officer]

My commission expires:

 

 

 

EXHIBIT E

 

MINNESOTA DEED

 

E-1

QUITCLAIM DEED WITH LIMITED WARRANTY

Corporation or Partnership or Limited Liability Company to

Corporation or Partnership or Limited Liability Company

 

 

FOR VALUABLE CONSIDERATION, VENTAS REALTY, LIMITED PARTNERSHIP, a limited partnership existing under and by virtue of the laws of the State of Delaware, Grantor, hereby conveys to              , a              existing under the laws of the State of Delaware, Grantee, real property in                      County, Minnesota, described as follows:

 

See Exhibit A attached hereto and made a part hereof.

 

[Address]

[parcel id number]

[parcel id number]

 

Together with all hereditaments and appurtenances belonging thereto, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and all of the estate, right, title, interest, claim or demand whatsoever, of the Grantor, either in law or equity, of, in and to the above described premises, with the hereditaments and appurtenances, without warranty of any kind except that Grantor does hereby warrant to Grantee that, at the time of this conveyance, Grantor owned fee simple title to the described real property free and clear of any mortgage or other lien securing borrowed indebtedness of Grantor: TO HAVE AND TO HOLD the said premises as above described, with the appurtenances, unto the Grantee, its heirs and assigns forever.

 

[signature page follows]

 

				VENTAS REALTY, LIMITED PARTNERSHIP , a Delaware limited partnership
				By:		Ventas, Inc., a Delaware corporation and its sole general partner
Affix Deed Tax Stamps Here						By:
						Name:
						Its:

 

2

 

The foregoing was acknowledged before me this      day of              , 2003, by                      , the                                  of Ventas, Inc., a Delaware corporation and the sole general partner of Ventas Realty, Limited Partnership, a Delaware limited partnership.

 

 

3

EXHIBIT A

 

LEGAL DESCRIPTION

 

ADDRESS:

 

TAX PARCEL NO.:

 

EXHIBIT F

 

CONNECTICUT DEEDS

 

F-1

Quitclaim Deed With Limited Warranty

 

Know all men by these presents:

 

That for the consideration of $              received, Ventas Realty, Limited Partnership, a Delaware limited partnership (hereinafter “Releasor”), does hereby remise, release and forever quitclaim unto              (hereinafter “Releasee”), its heirs, successors, and assigns, all right and title Releasor has in or to:

 

[See Exhibit A attached hereto and made a part hereof]

 

To have and to hold the premises, unto              , the said Releasee, and to the successors, heirs and assigns of Releasee, to the only use and behoof of the said Releasee, its successors, heirs and assigns forever, so that neither Ventas Realty, Limited Partnership, the said Releasor, nor any other person or persons in Releasor’s name and behalf shall or will hereafter claim or demand any right or title to the premises or any part thereof, but they and every one of them shall by these presents be excluded and forever barred. Releasor hereby warrants to Releasee that, as of the date of this instrument, Releasor owned fee simple title to the described premises free and clear of any mortgage or other lien securing borrowed indebtedness of Releasor.

 

In witness whereof, Releasor has hereunto set its hand this              day of              , 2003.

 

Witnessed by :				Releasor :
				VENTAS REALTY, LIMITED PARTNERSHIP, a Delaware limited partnership
				By: Ventas, Inc., a Delaware corporation, its general partner
Printed Name:
						By:
Printed Name:						Name:
						Its:

 

State of                     

 

County of                 

 

Personally appeared              , signer of the foregoing instrument, and the              of Ventas, Inc., the general partner of Ventas Realty, Limited Partnership, and acknowledged this instrument to be the free act and deed of said corporation on behalf of said limited partnership, before me.

 

 

 

EXHIBIT G

 

KENTUCKY DEED

 

G-1

Quitclaim Deed With Limited Warranty

 

This deed made this              day of              , 2003, by and between Ventas Realty, Limited Partnership, a Delaware limited partnership (“Grantor”) with an address of 4360 Brownsboro Road, Suite 115, Louisville, Kentucky 40207 and                                                                                                            (“Grantee”) with an address of                                                                                                                                                         .

 

Witnesseth:

 

That for valuable consideration in the total amount of                          ($              ) paid in cash, the receipt of which is hereby acknowledged, Grantor does hereby convey, without warranty, except for the limited warranty set forth below, unto Grantee, the following described real estate situated in              County, Kentucky, and being more particularly described as follows:

 

[See Exhibit A attached hereto]

 

Grantor does hereby warrant to Grantee that, at the time of this conveyance, Grantor owned fee simple title to the subject property free and clear of any mortgage or other lien securing borrowed indebtedness of Grantor.

 

[Signature Page Follows]

 

In testimony whereof, witness the signature of Grantor the date and year first above written.

 

VENTAS REALTY, LIMITED PARTNERSHIP, a Delaware limited partnership
By:		Ventas, Inc., a Delaware corporation, its general partner
		By:
		Name:
		Title:

 

State of Kentucky

County of                     

 

The foregoing instrument was

acknowledged before me this              day

of              , 2003.

 

Notary Public, State of
My commission expires:

 

Consideration Certificate

 

We, Ventas Realty, Limited Partnership, Grantor, and              , Grantee, do hereby certify, pursuant to KRS Chapter 382, that the above-stated consideration in the amount of $              , is the true, correct and full consideration paid for the property herein conveyed.

 

State of Kentucky County of						GRANTOR:
						VENTAS REALTY, LIMITED PARTNERSHIP, a Delaware limited partnership
The foregoing instrument was acknowledged before me this      day of            , 2003.						By:		Ventas, Inc., a Delaware corporation, its general partner
Notary Public, State of								By:
								Name:
								Title:
My commission expires:

 

State of Kentucky County of						GRANTEE:
The foregoing instrument was acknowledged before me this      day of            , 2003.								By:
								Name:
								Its:
Notary Public, State of
My commission expires:

 

Prepared By:

 

Joseph D. Lambert, Esq.

Barack Ferrazzano Kirschbaum Perlman & Nagelberg LLC

333 West Wacker Drive, Suite 2700

Chicago, Illinois 60606

(312) 629-5125

 

EXHIBIT H

 

WISCONSIN DEED

 

H-1

THIS INSTRUMENT PREPARED BY:

 

Joseph D. Lambert

Barack Ferrazzano Kirschbaum

Perlman & Nagelberg LLC

333 West Wacker Drive, Suite 2700

Chicago, Illinois 60606

 

AFTER RECORDING, RETURN TO:

 

 

QUITCLAIM DEED WITH LIMITED WARRANTY

 

BY

 

VENTAS REALTY, LIMITED PARTNERSHIP

 

TO

 

 

 

 

________________				STATE BAR OF WISCONSIN FORM 3 – 2000 QUIT CLAIM DEED
Document Number				WITH LIMITED WARRANTY

 

This Deed , made between Ventas Realty, Limited Partnership, Grantor, and                      , Grantee.

 

Grantor quit claims to Grantee with the limited warranty set forth below, the following described real estate in                  County, State of Wisconsin (if more space is needed, please attach addendum):

 

[See Exhibit A attached hereto]

 

Together with all appurtenant rights, title and interests.

 

This deed is executed and delivered by the Grantor on a quitclaim basis and with no warranty of any kind or nature, except that the Grantor does hereby warrant to the Grantee that, at the time of this conveyance, the Grantor owned fee simple title to the subject property, free and clear of any mortgage or other lien securing borrowed indebtedness of the Grantor.

 

 

Date this      day of              , 2003.

 

 

 

 

 

EXHIBIT I

 

FIRPTA AFFIDAVIT

 

CERTIFICATION OF NONFOREIGN STATUS

 

Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person. To inform the transferee that withholding of tax is not required upon the disposition of a U.S. real property interest by Ventas Realty, Limited Partnership (“ Seller ”), Seller hereby certifies the following:

 

1.

Seller is a “United States Person” and is not a “foreign person” in accordance with and for the purpose of the provisions of Sections 7701 and 1445 (as may be amended) of the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder.

 

2.

Seller’s U. S. Employer Identification Number is 61-1324573.

 

3.

Seller’s office address is: c/o Ventas, Inc.

                      4360 Brownsboro Road

                      Suite 115

                      Louisville, Kentucky 40207-1642

 

The undersigned understands that this certification may be disclosed to the Internal Revenue Service by transferee and that any false statement contained herein could be punished by fine, imprisonment, or both.

 

Dated:                      , 2003.

 

 

I-1

EXHIBIT J-1

 

PARTIAL LEASE TERMINATION OF MASTER LEASE NO. 1

 

J-1-1

 

MASTER LEASE NO. 1 PARTIAL LEASE TERMINATION AGREEMENT

 

BY AND AMONG

 

KINDRED HEALTHCARE, INC.

(f/k/a Vencor, Inc.),

 

KINDRED HEALTHCARE OPERATING, INC.

(f/k/a Vencor Operating, Inc.),

 

AND

 

VENTAS REALTY, LIMITED PARTNERSHIP

 

MASTER LEASE NO. 1 PARTIAL LEASE TERMINATION AGREEMENT

 

THIS MASTER LEASE NO. 1 PARTIAL LEASE TERMINATION AGREEMENT (hereinafter this “ Agreement ” ) is dated as of the              day of                      , 2003, and is by and among VENTAS REALTY, LIMITED PARTNERSHIP , a Delaware limited partnership (together with its successors and assigns, “ Lessor ”), having an office at 4360 Brownsboro Road, Suite 115, Louisville, Kentucky 40207, and KINDRED HEALTHCARE, INC. , a Delaware corporation (f/k/a Vencor, Inc.) (“ Kindred ”), and KINDRED HEALTHCARE OPERATING, INC ., a Delaware corporation (f/k/a Vencor Operating, Inc.) (“ Operator ”; Operator, jointly and severally with Kindred and permitted successors and assignees of Operator and Kindred, “ Tenant ”), both having an office at 680 South 4 ^th Avenue, Louisville, Kentucky 40202.

 

RECITALS

 

A. Lessor and Tenant entered into a certain Amended and Restated Master Lease Agreement No. 1 dated as of April 20, 2001 (as the same may have been or may hereafter be amended, amended and restated, supplemented, modified, severed, renewed, extended or replaced, the “ Lease ”), demising to Tenant certain properties.

 

B. Lessor and Tenant entered into an Agreement for Sale of Real Estate and Master Lease Amendments dated                      , 2003 (as the same may have been heretofore amended, amended and restated, supplemented, modified, renewed, extended or replaced, the “ Sale/Amendment Agreement ”).

 

C. Pursuant to the Sale/Amendment Agreement, Lessor and Tenant desire to terminate the Lease as it applies to certain of the Leased Properties demised pursuant to the Lease, on the terms set forth in this Agreement.

 

NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the parties hereby agree as follows:

 

1. Capitalized Terms . All capitalized terms used herein and not defined herein shall have the meaning ascribed thereto in the Lease.

 

2. Partial Lease Termination . Effective as of the date hereof, the Lease shall terminate with respect to the Leased Properties described on Exhibit A attached to and made a part of this Agreement in accordance with the terms of Section 40.16 of the Lease, and Tenant shall remain obligated to perform all of its indemnification obligations and other liabilities and obligations under the Lease that survive such termination in accordance with the terms of such Section 40.16 , Section 24.1 of the Lease and any other applicable provisions of the Lease.

 

3. Termination Fee . Simultaneously with Lessor’s and Tenant’s entry into this Agreement, Tenant shall pay to Lessor, by wire transfer of immediately available funds to such wire transfer account(s) as Lessor may specify in writing, the sum of Two Million Seven Hundred Sixty Five Thousand Eight Hundred Sixty One and No/100 Dollars ($2,765,861.00)

 

in consideration of Lessor’s agreement to terminate the Lease as it applies to the Leased Properties referenced in Paragraph 2 above.

 

4. No Other Amendments . Except as provided in this Agreement, the Lease remains in full force and effect without modification.

 

5. Successors and Assigns . This Agreement and the covenants and agreements herein contained shall be binding upon and inure to the benefit of Lessor and Tenant and their respective heirs, devisees, successors and assigns.

 

6. Integrated Agreement; Modifications; Waivers . This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes any and all prior representations, understandings and agreements, whether written or oral. Each of the parties hereto acknowledges that it has not relied upon, in entering into this Agreement, any representation, warranty, promise or condition not specifically set forth in this Agreement. No supplement, modification or waiver of any provision of this Agreement shall be binding unless executed in writing by the party to be bound thereby. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.

 

7. Headings and Captions . The headings and captions of the paragraphs of this Agreement are for convenience of reference only and shall not affect the meaning or interpretation of this Agreement or any provision hereof.

 

8. Gender and Number . As used in this Agreement, the neuter shall include the feminine and masculine, the singular shall include the plural, and the plural shall include the singular, except where expressly provided to the contrary.

 

9. Severability . In the event that any paragraph, section, sentence, clause or phrase contained in this Agreement becomes or is held by any court of competent jurisdiction to be illegal, null or void or against public policy, the remaining paragraphs, sections, sentences, clauses or phrases contained in this Agreement shall not be affected thereby.

 

10. Counterparts . This Agreement and any amendment to this Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto were upon the same instrument.

 

[Signature Page Follows]

 

2

IN WITNESS WHEREOF, the parties hereto have executed these presents the day and year first above written.

 

 

 

 

3

Acknowledgments

 

STATE OF __________________		)
		)
COUNTY OF ________________		)

 

This              day of                      , 2003, personally came before me                      , a Notary Public in and for said County and State,                      , who being by me duly sworn, says that he is the                      of KINDRED HEALTHCARE, INC., a Delaware corporation, and that the seal affixed to the foregoing instrument in writing is the corporate seal of said corporation, and that said writing was signed and sealed by him on behalf of such corporation by its authority duly given. And the said                      acknowledged the said writing to be the act and deed of said corporation.

 

WITNESS my hand and notarial stamp/seal this              day of                      , 2003.

 

 

My Commission Expires:

[Notarial Stamp/Seal]

 

STATE OF __________________		)
		)
COUNTY OF ________________		)

 

This              day of                      , 2003, personally came before me                      , a Notary Public in and for said County and State,                      , who being by me duly sworn, says that he is the                      of KINDRED HEALTHCARE OPERATING, INC., a Delaware corporation, and that the seal affixed to the foregoing instrument in writing is the corporate seal of said corporation, and that said writing was signed and sealed by him on behalf of such corporation by its authority duly given. And the said                      acknowledged the said writing to be the act and deed of said corporation.

 

WITNESS my hand and notarial stamp/seal this              day of                      , 2003.

 

 

My Commission Expires:

[Notarial Stamp/Seal]

 

4

STATE OF __________________		)
		)
COUNTY OF ________________		)

 

This              day of                      , 2003, personally came before me                      , a Notary Public in and for said County and State, T. Richard Riney, who being by me duly sworn, says that he is the Executive Vice President, General Counsel and Secretary of VENTAS, INC., a Delaware corporation, in its capacity as the general partner of VENTAS REALTY, LIMITED PARTNERSHIP, a Delaware limited partnership, and that the seal affixed to the foregoing instrument in writing is the corporate seal of said corporation, and that said writing was signed and sealed by him on behalf of such corporation by its authority duly given, in its aforesaid general partner capacity on behalf of the aforesaid limited partnership. And the said Executive Vice President, General Counsel and Secretary acknowledged the said writing to be the act and deed of said corporation, acting in such general partner capacity.

 

WITNESS my hand and notarial stamp/seal this              day of                      , 2003.

 

 

My Commission Expires:

[Notarial Stamp/Seal]

 

5

CONSENT

 

The undersigned hereby consents to the terms of the foregoing instrument.

 

JPMORGAN CHASE BANK (formerly THE CHASE MANHATTAN BANK, successor by merger to MORGAN GUARANTY TRUST COMPANY OF NEW YORK), as administrative agent and Collateral Agent under that certain $120,000,000 credit agreement, dated as of April 20, 2001, as amended, and as administrative agent and Collateral Agent under that certain $300,000,000 credit agreement, dated as of April 20, 2001, as amended

 

By:
Name:
Title:

 

STATE OF __________________		)