EXHIBIT 10.57
SECOND STANDSTILL AGREEMENT
---------------------------
This Agreement dated April 12, 1999 is made and entered into between
Vencor, Inc., a corporation organized under the laws of Delaware, for and on
behalf of itself and its various subsidiaries and affiliates, including, without
limitation, Vencor Operating, Inc. (collectively, "Vencor") and Ventas, Inc., a
corporation organized under the laws of Delaware, for and on behalf of itself
and its various subsidiaries and affiliates, including, without limitation,
Ventas Realty, Limited Partnership (collectively, "Ventas").
WHEREAS, Vencor and Ventas entered into an Agreement And Plan Of
Reorganization, dated as of April 30, 1998 (the "Reorganization Agreement"), and
other Ancillary Agreements (as defined in the Reorganization Agreement),
including four Master Lease Agreements, dated as of April 30, 1998 (the "Master
Leases");
WHEREAS, Vencor Nursing Centers Limited Partnership (an affiliate of
Vencor) and Ventas Realty, Limited Partnership (an affiliate of Ventas) entered
into a Lease Agreement dated as of August 7, 1998, concerning a facility
commonly known as the Corydon, Indiana Skilled Nursing Center (the "Indiana
Lease," and, collectively with the Master Leases, the "Five Leases");
WHEREAS, on March 18, 1999, Vencor sent a letter to Ventas, invoking
the dispute resolution provisions of Section 6.01 of the Reorganization
Agreement and seeking, inter alia, to negotiate a settlement concerning various
disputes;
WHEREAS, on March 22, 1999, Ventas sent a letter to Vencor, inter
alia, denying the allegations in Vencor's March 18, 1999 letter but agreeing to
engage in a constructive dialogue with Vencor regarding the issues raised in
Vencor's letter;
WHEREAS, Vencor and Ventas entered into a Standstill Agreement dated
March 31, 1999 (the "First Standstill Agreement"), in which the parties agreed
not to take certain actions or to exercise certain rights or remedies against
one another during a period through and including April 12, 1999;
WHEREAS, the parties desire to continue negotiations and, in
connection therewith, to enter into certain arrangements more particularly
identified herein, including, without limitation, certain arrangements for the
payment in full of the rent due to Ventas under the Five Leases for the month of
April 1999, for the tolling or suspending of limitations or repose periods
applicable to certain alleged claims arising out of the Reorganization
Agreement, the Ancillary Agreements or the transactions contemplated by or in
those agreements, and for other matters;
NOW, THEREFORE, in consideration of the premises and the agreements
and undertakings of the parties contained herein, the parties agree as follows:
1. Except as explicitly set forth in the Tolling Agreement, neither
this Second Standstill Agreement, the Tolling Agreement by and between Ventas
and Vencor of even date herewith, the four Second Amendment to Master Lease
Agreements by and between Ventas and Vencor (and the other related parties to
the Master Lease Agreements) of even date herewith, nor the First Amendment to
Corydon, Indiana Lease Agreement by and between Ventas Realty, Limited
Partnership and Vencor Nursing Centers Limited Partnership of even date herewith
(the "Contemporaneous Agreements"), nor any discussions in pursuance hereof or
thereof, shall constitute a waiver by either party of any claim or defense that
may be asserted against the other party (including, without limitation, any
claim or defense with respect to the legality, validity, or
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enforceability of the Master Leases), an admission of liability by either party
or an admission by either party of the propriety or validity of any claims or
defenses asserted by either other party, and neither this Second Standstill
Agreement nor the Tolling Agreement shall be offered or received in evidence in
any arbitration or litigation between or among the parties except to enforce the
terms of such agreements or, where the intent of the parties is clearly stated
in such agreements, to demonstrate the intent of the parties.
2. Any modifications to this Second Standstill Agreement shall be in
writing and signed by both parties hereto.
3. Each of the undersigned represents that he or she has the
authority to execute this Agreement on behalf of the party for whom it is
executed.
4. Simultaneously with the execution and delivery of this Second
Standstill Agreement, the parties shall execute and deliver the following
additional agreements: the Tolling Agreement set forth at Exhibit A hereto, the
four Second Amendment to Master Lease Agreements set forth at Exhibit B hereto,
and the First Amendment to Corydon, Indiana Lease Agreement set forth at Exhibit
C hereto. This Agreement shall not become effective prior to the execution and
delivery of all of the foregoing agreements.
5. During the period from the date hereof through and including the
earlier of (a) the commencement by or against Vencor, as debtor, of a voluntary
or involuntary bankruptcy case under Title 11 of the United States Code, or (b)
5:00 p.m. Eastern Daylight Savings Time on May 5, 1999 (such period being
referred to herein as the "Second Standstill Period"), neither Vencor nor Ventas
will file, commence, serve, or otherwise initiate any civil action, arbitration
proceeding, or other similar action, litigation, case, or proceeding of any
kind, character, or
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nature whatsoever (an "Action") against the other or any third party, including,
without limitation, any of Vencor's or Ventas' current or former officers,
directors, or employees, arising from or relating to the Reorganization
Agreement, any Ancillary Agreement, or any of the Five Leases, or with respect
to the various disputes identified in Vencor's March 18, 1999 letter; nor shall
Ventas exercise any rights or remedies it may have against Vencor under any of
the Five Leases based on Vencor's late payment of the rent due under the Five
Leases for the month of April 1999, based on Vencor's late payment of rent due
under the Five Leases for the month of May 1999, or based on any default arising
from or related to the disclosures made by Vencor to Ventas commencing on or
about March 30 and March 31, 1999 and continuing to the date hereof.
Notwithstanding the foregoing, the Second Standstill Period shall immediately
terminate, and Vencor and Ventas may proceed to file such Actions as either may
choose, and Ventas may proceed to exercise such rights or remedies as it may
choose under any of the Five Leases in the event that:
(i) prior to 5:00 p.m. Eastern Daylight Savings Time on April 13, 1999,
Vencor has not paid to Ventas, in immediately available funds, the sum
of $8,022,426.00, representing thirteen-thirtieths (13/30) of the rent
due to Ventas under the Five Leases for the month of April 1999; or
(ii) prior to 5:00 p.m. Eastern Daylight Savings Time on April 20, 1999,
Vencor has not paid to Ventas, in immediately available funds, an
additional sum of $4,319,767.85, representing seven-thirtieths (7/30)
of the rent due to Ventas under the Five Leases; or
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(iii) prior to 5:00 p.m. Eastern Daylight Savings Time on April 27, 1999,
Vencor has not paid to Ventas, in immediately available funds, an
additional sum of $4,319,767.85, representing seven-thirtieths (7/30)
of the rent due to Ventas under the Five Leases; or
(iv) prior to 5:00 p.m. Eastern Daylight Savings Time on April 30, 1999,
Vencor has not paid to Ventas, in immediately available funds, an
additional sum of $1,851,329.07, representing three-thirtieths (3/30)
of the rent due to Ventas under the Five Leases.
6. Notwithstanding anything contained in this Second Standstill
Agreement to the contrary, Vencor, subsequent to 5:00 p.m. Eastern Daylight
Savings Time on April 26, 1999, may commence an Action against those of the
three individuals who are identified in the letter from counsel for Ventas to
counsel for Vencor of even date herewith and who, prior to 5:00 p.m. Eastern
Daylight Savings Time on April 26, 1999, fail to execute and deliver a tolling
agreement with Vencor covering claims of each against the other that is
reasonably satisfactory in form and substance to Vencor and to such individuals.
7. This Second Standstill Agreement is binding upon the undersigned
parties and on any representatives, successors, heirs, and assigns of the
parties hereto.
8. This Second Standstill Agreement may be executed in one or more
counterparts and by facsimile, each of which counterparts shall be deemed an
original hereof, but all of which together shall constitute one agreement.
9. This Second Standstill Agreement shall be construed pursuant to
the laws of the State of New York, without giving effect to the choice-of-law
rules of New York law.
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10. Payments of funds due from Vencor to Ventas hereunder, including
payment of rent due under the Five Leases, shall be made by wire transfer to
Ventas through the following wire instructions:
SunTrust Bank, Nashville
ABA Routing No.: 000000000
Account: 7020226622
Credit Ventas Realty, Limited Partnership
CONFIRMED AND AGREED TO AS OF THE DATE FIRST ABOVE WRITTEN BY:
VENCOR, INC. VENTAS, INC.
By: By:
------------------------------- --------------------------------
Name: Name:
Title: Title:
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EXHIBIT A
TOLLING AGREEMENT
-----------------
This Agreement dated April 12, 1999 is made and entered into between
Vencor, Inc., a corporation organized under the laws of Delaware, for and on
behalf of itself and its various subsidiaries and affiliates, including, without
limitation, Vencor Operating, Inc., and for and on behalf of any of their
respective successors including, without limitation, any debtor or debtor-in-
possession in a bankruptcy case commenced under Title 11 of the United States
Code (the "Bankruptcy Code") or any trustee appointed in any such case
(collectively, "Vencor"), and Ventas, Inc., a corporation organized under the
laws of Delaware for and on behalf of itself and its various subsidiaries and
affiliates, including, without limitation, Ventas Realty, Limited Partnership,
and for and on behalf of any of their respective successors including, without
limitation, any debtor or debtor-in-possession in a bankruptcy case commenced
under the Bankruptcy Code or any trustee appointed in any such case
(collectively, "Ventas").
WHEREAS, the parties to this Agreement are in the process of
attempting to resolve any and all existing and potential claims that Vencor has
asserted or might in the future assert against Ventas (the "Vencor Claims"), the
validity of which Ventas has disputed, and any and all existing and potential
claims that Ventas has asserted or might in the future assert against Vencor
(the "Ventas Claims"), the validity of which Vencor has disputed (the Vencor
Claims and the Ventas Claims are collectively referred to herein as the
"Claims"); and
WHEREAS, the parties desire to toll or suspend the limitations or
repose periods applicable to the Claims for the Tolling Period (defined below).
NOW, THEREFORE, for good cause and adequate consideration, including
forbearance by both Vencor and Ventas from pursuing certain remedies at this
time, the parties
hereto agree as follows:
1. Any Vencor Claims, including, without limitation, those arising
or available under the Bankruptcy Avoidance Provisions (defined below) that
Vencor could otherwise assert against Ventas if Vencor were a debtor in a case
under the Bankruptcy Code commenced on the date hereof, and whether arising
under the Bankruptcy Code or under other applicable federal or state law, shall
not be prejudiced, impaired, or waived by Vencor's failure to commence such a
bankruptcy case, and any and all statutes of limitations, repose, or other legal
or equitable constraints on the time by which such a bankruptcy case or pleading
initiating any Vencor Claim must be filed to assert such a Vencor Claim
(including, without limitation, a cause of action under (S) 548 of the
Bankruptcy Code) shall be tolled during the period of time from the date hereof
to and including the earlier of (i) 5:00 p.m. Eastern Daylight Savings Time on
May 5, 1999, or (ii) the earlier time and date on which the Second Standstill
Period (as defined in the Second Standstill Agreement) shall automatically and
immediately terminate as a result of Vencor's nonpayment of rent (as provided in
paragraph 5 of the Second Standstill Agreement, the provisions of which are
hereby incorporated by reference) (the "Tolling Period"). For all purposes
herein, both the first and the last day of the Tolling Period shall be deemed to
be contained in the Tolling Period.
2. Without limiting the generality of the foregoing, Ventas shall
not assert against any Vencor Claim brought by Vencor any statute of
limitations, laches, or other time-related defense or claim, including, but not
limited to the defense or claim that the limitations periods or other time
periods set forth in 11 U.S.C. (S)(S) 544, 546, 547, 548, 550, 551 or 553 (the
"Bankruptcy Avoidance Provisions") or Section 10(b) of the Securities Exchange
Act of 1934
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have expired, to the extent that such defenses or claims depend on the passage
of time during the Tolling Period. Additionally, for purposes of any action
pursuant to the Bankruptcy Avoidance Provisions, Vencor shall be deemed to have
commenced its bankruptcy case on the date that is calculated by going back in
time from the date it actually commenced such case by the number of days
contained in the Tolling Period.
3. Any Ventas Claims, including, without limitation, those arising
or available under the Bankruptcy Avoidance Provisions (defined below) that
Ventas could otherwise assert against Vencor if Ventas were a debtor in a case
under the Bankruptcy Code commenced on the date hereof, and whether arising
under the Bankruptcy Code or under other applicable federal or state law, shall
not be prejudiced, impaired, or waived by Ventas' failure to commence such a
bankruptcy case, and any and all statutes of limitations, repose, or other legal
or equitable constraints on the time by which such a bankruptcy case or pleading
initiating any Ventas Claim must be filed to assert such a Ventas Claim
(including, without limitation, a cause of action under (S) 548 of the
Bankruptcy Code) shall be tolled during the Tolling Period.
4. Without limiting the generality of the foregoing, Vencor shall
not assert against any Ventas Claim brought by Ventas any statute of
limitations, laches, or other time-related defense or claim, including, but not
limited to the defense or claim that the limitations periods or other time
periods set forth in the Bankruptcy Avoidance Provisions or Section 10(b) of the
Securities Exchange Act of 1934 have expired, to the extent that such defenses
or claims depend on the passage of time during the Tolling Period.
Additionally, for purposes of any action pursuant to the Bankruptcy Avoidance
Provisions, Ventas shall be deemed to have commenced its bankruptcy case on the
date that is calculated by going back in time from the date
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it actually commenced such case by the number of days contained in the Tolling
Period.
5. For purposes of facilitating aspects of the foregoing, Ventas and
Vencor agree and stipulate that this Agreement shall create claims in favor of
Vencor, the substantive elements of which and the case law applicable to which
are in all respects identical to the Vencor Claims that would have arisen under
the Bankruptcy Avoidance Provisions had Vencor been a debtor in a bankruptcy
case commenced under the Bankruptcy Code on April 29, 1999. Any such claim may
be asserted by Vencor only in connection with and subsequent to a bankruptcy
case commenced by or against it, as debtor, under the Bankruptcy Code on or
before the date established by taking April 29, 1999 and adding to it the actual
number of days contained in the Tolling Period. For purposes of each such claim
created in this paragraph, Vencor shall be conclusively and irrebuttably
presumed to have commenced its bankruptcy case within one year of April 29,
1998, if such case is, in fact, commenced on or before the date established by
taking April 29, 1999 and adding to it the actual number of days contained in
the Tolling Period.
6. For purposes of facilitating aspects of the foregoing, Ventas and
Vencor agree and stipulate that this Agreement shall create claims in favor of
Ventas, the substantive elements of which and the case law applicable to which
are in all respects identical to the Ventas Claims that would have arisen under
the Bankruptcy Avoidance Provisions had Ventas been a debtor in a bankruptcy
case commenced under the Bankruptcy Code on April 29, 1999. Any such claim may
be asserted by Ventas only in connection with and subsequent to a bankruptcy
case commenced by or against it, as debtor, under the Bankruptcy Code on or
before the date established by taking April 29, 1999 and adding to it the actual
number of days contained in the Tolling Period. For purposes of each such claim
created in this paragraph, Ventas shall be
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conclusively and irrebuttably presumed to have commenced its bankruptcy case
within one year of April 29, 1998, if such case is, in fact, commenced on or
before the date established by taking April 29, 1999 and adding to it the actual
number of days contained in the Tolling Period.
7. Ventas and Vencor agree that the stipulations in this Agreement
are binding and irrevocable, and either party shall have the right to introduce
a copy of this Agreement into evidence to enforce such stipulations in any
litigation or arbitration proceeding between Ventas and Vencor. Ventas
acknowledges that Vencor's forbearance from commencing a bankruptcy case prior
to April 29, 1999, will serve as sound, adequate, fair and sufficient
consideration for the foregoing agreements and stipulations. Vencor
acknowledges that Ventas' forbearance from commencing a bankruptcy case prior to
April 29, 1999, will serve as sound, adequate, fair and sufficient consideration
for the foregoing agreements and stipulations.
8. Neither this Agreement nor the circumstances leading to its
execution shall be construed to vitiate or waive (a) any statute of limitations,
laches, or other time-related defenses that are available prior to or after the
Tolling Period, provided that the passage of time during the Tolling Period is
not taken into account, or (b) any non-time-related defenses to any Vencor
Claim, Ventas Claim, or claim created by paragraph 5 or 6 of this Agreement.
9. Each of the undersigned represents that he or she has the
authority to execute this Agreement on behalf of the party or parties for whom
it is executed.
10. Any modifications to this Tolling Agreement shall be in writing
and signed by both parties hereto.
11. Simultaneously with the execution and delivery of this Agreement,
the parties shall execute and deliver that certain Second Standstill Agreement,
those four certain
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Second Amendment to Master Lease Agreements, and that certain First Amendment to
Corydon, Indiana Lease Agreement (collectively, the "Contemporaneous
Agreements"). This Agreement shall not become effective prior to the execution
and delivery of each of the foregoing Contemporaneous Agreements.
12. Paragraphs 1, 2, and 5 of this Agreement shall be void and
without effect in the event Vencor commences a voluntary bankruptcy case under
the Bankruptcy Code prior to April 29, 1999, and paragraphs 3, 4, and 6 of this
Agreement shall be void and without effect in the event Ventas commences a
voluntary bankruptcy case under the Bankruptcy Code prior to April 29, 1999.
13. This Agreement is binding on the undersigned parties and on the
representatives, successors, heirs, and assigns of the parties hereto.
14. This Agreement may be executed in one or more counterparts and by
facsimile, each of which counterparts shall be deemed an original hereof, but
all of which together shall constitute one agreement.
15. This Tolling Agreement shall be construed pursuant to the laws of
the State of New York, without giving effect to the choice-of-law rules of New
York law.
[INTENTIONALLY LEFT BLANK]
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CONFIRMED AND AGREED TO AS OF THE DATE FIRST ABOVE WRITTEN BY:
VENCOR, INC. VENTAS, INC.
By: By:
----------------------- -----------------------------
Name: Name:
Title: Title:
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EXHIBIT B
SECOND AMENDMENT TO MASTER LEASE AGREEMENT NO. 1
------------------------------------------------
THIS SECOND AMENDMENT TO MASTER LEASE AGREEMENT NO. 1, dated April 12,
1999 (the "Amendment"), is entered into by and among Ventas, Inc., formerly
known as Vencor, Inc., a Delaware corporation ("Ventas") and Ventas Realty,
Limited Partnership, a Delaware limited partnership ("Ventas LP", and together
with Ventas, "Lessor") and Vencor Operating, Inc. ("Current Tenant"), a Delaware
corporation and Vencor, Inc., formerly known as Vencor Healthcare, Inc., a
Delaware corporation ("Vencor").
WHEREAS, First Healthcare Corporation, a Delaware corporation,
Nationwide Care, Inc., an Indiana corporation, Northwest Health Care, Inc., an
Idaho corporation, Hillhaven of Central Florida, Inc., a Delaware corporation,
Vencor Hospitals East, Inc., a Delaware corporation, Hahnemann Hospital, Inc., a
Delaware corporation, Hillhaven/Indiana Partnership, a Washington general
partnership, Carrollwood Care Center, a Tennessee general partnership, New Pond
Village Associates, a Massachusetts general partnership, St. Xxxxxx Nursing Home
Limited Partnership, an Oregon limited partnership, San Marcos Nursing Home
Partnership, a California general partnership, Vencor Hospitals Illinois, Inc.,
a Delaware corporation, Windsor Xxxxx Nursing Home Partnership, a Washington
general partnership, Health Haven Associates, L.P., a Rhode Island limited
partnership, Oak Hill Nursing Associates, L.P., a Rhode Island limited
partnership (collectively, the "Subsidiaries") and Lessor (the Subsidiaries
together with Lessor referred to herein as "Original Lessor"), as lessor, and
Vencor, together with its permitted assigns, including Current Tenant (Vencor
together with Current Tenant referred to herein as "Original Tenant"), as
tenant, entered into that certain Master Lease Agreement, dated April 30, 1998,
and commonly known as Master Lease No. 1 (the "Master Lease Agreement") pursuant
to
which, inter alia, Original Lessor leased to Original Tenant and Original Tenant
leased from Original Lessor the Leased Properties (as defined in the Master
Lease Agreement) (capitalized terms used herein but not defined herein shall
have the meanings assigned to them in the Master Lease Agreement); and
WHEREAS, Ventas claims that pursuant to that certain Assignment and
Assumption of Master Lease, dated April 30, 1998, by and between Vencor, as
assignor, and Current Tenant, as assignee, Vencor assigned all of its right,
title, and interest in, to, and under the Master Lease Agreement to Current
Tenant; and
WHEREAS, Ventas claims that it is the successor by merger to each of
the Subsidiaries, and Ventas LP now has title to the Leased Properties; and
WHEREAS, Ventas claims that Vencor and Current Tenant executed and
delivered that certain Guaranty of Lease, dated as of April 30, 1998; and
WHEREAS, Ventas claims that it, Ventas LP, Current Tenant, and Vencor
entered into that certain First Amendment to Master Lease Agreement, dated as of
December 31, 1998 but effective as of April 30, 1998, pursuant to which the
Master Lease Agreement was amended in several respects; and
WHEREAS, simultaneously with the execution of this Amendment, Ventas
and Vencor shall execute and deliver that certain Second Standstill Agreement;
that certain Tolling Agreement; and Amendments to the other Master Leases and to
the Lease Agreement for the facility commonly known as the Corydon, Indiana
Skilled Nursing Center, each containing substantive terms identical to the terms
of this Amendment (collectively, the "Contemporaneous Agreements"); and
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WHEREAS, the parties hereto desire to further amend the Master Lease
Agreement;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree to amend the aforementioned Master Lease
Agreement as follows:
1. Section 16.4, entitled "Tenant's Obligation to Purchase," is
hereby deleted from the Master Lease Agreement, as of April 30, 1998, as fully
as if such Section had never been contained in such Master Lease Agreement.
2. The parties hereto intend that this Amendment shall become
effective simultaneously with the execution and delivery of the Contemporaneous
Agreements.
3. Except to the extent expressly modified herein, all other terms,
covenants, and conditions of the Master Lease Agreement shall remain unchanged.
4. Each of the undersigned represents that he or she has the
authority to execute this Amendment on behalf of the party or parties for whom
it is executed.
5. This Amendment may be executed in one or more counterparts and by
facsimile, each of which counterparts shall be deemed an original hereof, but
all of which together shall constitute one agreement.
-3-
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and their respective corporate seals to be hereunto affixed and
attested by their respective officers hereunto duly authorized.
LESSOR:
------
WITNESS VENTAS, INC.
-------------------------- By:
Name ---------------------------------
Name:
-------------------------- Title:
Name
VENTAS REALTY, LIMITED PARTNERSHIP
WITNESS By: Ventas, Inc., its general partner
-------------------------- By:
Name ---------------------------------
Name:
-------------------------- Title:
Name
ORIGINAL TENANT:
---------------
WITNESS VENCOR, INC.
-------------------------- By:
Name ---------------------------------
Name:
-------------------------- Title:
Name
WITNESS VENCOR OPERATING, INC.
-------------------------- By:
Name ---------------------------------
Name:
-------------------------- Title:
Name
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SECOND AMENDMENT TO MASTER LEASE AGREEMENT NO. 2
------------------------------------------------
THIS SECOND AMENDMENT TO MASTER LEASE AGREEMENT NO. 2, dated April 12,
1999 (the "Amendment"), is entered into by and among Ventas, Inc., formerly
known as Vencor, Inc., a Delaware corporation ("Ventas") and Ventas Realty,
Limited Partnership, a Delaware limited partnership ("Ventas LP", and together
with Ventas, "Lessor") and Vencor Operating, Inc. ("Current Tenant"), a Delaware
corporation and Vencor, Inc., formerly known as Vencor Healthcare, Inc., a
Delaware corporation ("Vencor").
WHEREAS, First Healthcare Corporation, a Delaware corporation,
Nationwide Care, Inc., an Indiana corporation, Northwest Health Care, Inc., an
Idaho corporation, Hillhaven of Central Florida, Inc., a Delaware corporation,
Vencor Hospitals East, Inc., a Delaware corporation, Hahnemann Hospital, Inc., a
Delaware corporation, Hillhaven/Indiana Partnership, a Washington general
partnership, Carrollwood Care Center, a Tennessee general partnership, New Pond
Village Associates, a Massachusetts general partnership, St. Xxxxxx Nursing Home
Limited Partnership, an Oregon limited partnership, San Marcos Nursing Home
Partnership, a California general partnership, Vencor Hospitals Illinois, Inc.,
a Delaware corporation, Windsor Xxxxx Nursing Home Partnership, a Washington
general partnership, Health Haven Associates, L.P., a Rhode Island limited
partnership, Oak Hill Nursing Associates, L.P., a Rhode Island limited
partnership (collectively, the "Subsidiaries") and Lessor (the Subsidiaries
together with Lessor referred to herein as "Original Lessor"), as lessor, and
Vencor, together with its permitted assigns, including Current Tenant (Vencor
together with Current Tenant referred to herein as "Original Tenant"), as
tenant, entered into that certain Master Lease Agreement, dated April 30, 1998,
and commonly known as Master Lease No. 2 (the "Master Lease Agreement") pursuant
to
which, inter alia, Original Lessor leased to Original Tenant and Original Tenant
leased from Original Lessor the Leased Properties (as defined in the Master
Lease Agreement) (capitalized terms used herein but not defined herein shall
have the meanings assigned to them in the Master Lease Agreement); and
WHEREAS, Ventas claims that pursuant to that certain Assignment and
Assumption of Master Lease, dated April 30, 1998, by and between Vencor, as
assignor, and Current Tenant, as assignee, Vencor assigned all of its right,
title, and interest in, to, and under the Master Lease Agreement to Current
Tenant; and
WHEREAS, Ventas claims that it is the successor by merger to each of
the Subsidiaries, and Ventas LP now has title to the Leased Properties; and
WHEREAS, Ventas claims that Vencor and Current Tenant executed and
delivered that certain Guaranty of Lease, dated as of April 30, 1998; and
WHEREAS, Ventas claims that it, Ventas LP, Current Tenant, and Vencor
entered into that certain First Amendment to Master Lease Agreement, dated as of
December 31, 1998 but effective as of April 30, 1998, pursuant to which the
Master Lease Agreement was amended in several respects; and
WHEREAS, simultaneously with the execution of this Amendment, Ventas
and Vencor shall execute and deliver that certain Second Standstill Agreement;
that certain Tolling Agreement; and Amendments to the other Master Leases and to
the Lease Agreement for the facility commonly known as the Corydon, Indiana
Skilled Nursing Center, each containing substantive terms identical to the terms
of this Amendment (collectively, the "Contemporaneous Agreements"); and
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WHEREAS, the parties hereto desire to further amend the Master Lease
Agreement;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree to amend the aforementioned Master Lease
Agreement as follows:
1. Section 16.4, entitled "Tenant's Obligation to Purchase," is
hereby deleted from the Master Lease Agreement, as of April 30, 1998, as fully
as if such Section had never been contained in such Master Lease Agreement.
2. The parties hereto intend that this Amendment shall become
effective simultaneously with the execution and delivery of the Contemporaneous
Agreements.
3. Except to the extent expressly modified herein, all other terms,
covenants, and conditions of the Master Lease Agreement shall remain unchanged.
4. Each of the undersigned represents that he or she has the
authority to execute this Amendment on behalf of the party or parties for whom
it is executed.
5. This Amendment may be executed in one or more counterparts and by
facsimile, each of which counterparts shall be deemed an original hereof, but
all of which together shall constitute one agreement.
-3-
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and their respective corporate seals to be hereunto affixed and
attested by their respective officers hereunto duly authorized.
LESSOR:
------
WITNESS VENTAS, INC.
-------------------------- By:
Name ---------------------------------
Name:
-------------------------- Title:
Name
VENTAS REALTY, LIMITED PARTNERSHIP
WITNESS By: Ventas, Inc., its general partner
-------------------------- By:
Name ---------------------------------
Name:
-------------------------- Title:
Name
ORIGINAL TENANT:
---------------
WITNESS VENCOR, INC.
-------------------------- By:
Name ---------------------------------
Name:
-------------------------- Title:
Name
WITNESS VENCOR OPERATING, INC.
-------------------------- By:
Name ---------------------------------
Name:
-------------------------- Title:
Name
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SECOND AMENDMENT TO MASTER LEASE AGREEMENT NO. 3
------------------------------------------------
THIS SECOND AMENDMENT TO MASTER LEASE AGREEMENT NO. 3, dated April 12,
1999 (the "Amendment"), is entered into by and among Ventas, Inc., formerly
known as Vencor, Inc., a Delaware corporation ("Ventas") and Ventas Realty,
Limited Partnership, a Delaware limited partnership ("Ventas LP", and together
with Ventas, "Lessor") and Vencor Operating, Inc. ("Current Tenant"), a Delaware
corporation and Vencor, Inc., formerly known as Vencor Healthcare, Inc., a
Delaware corporation ("Vencor").
WHEREAS, First Healthcare Corporation, a Delaware corporation,
Nationwide Care, Inc., an Indiana corporation, Northwest Health Care, Inc., an
Idaho corporation, Hillhaven of Central Florida, Inc., a Delaware corporation,
Vencor Hospitals East, Inc., a Delaware corporation, Hahnemann Hospital, Inc., a
Delaware corporation, Hillhaven/Indiana Partnership, a Washington general
partnership, Carrollwood Care Center, a Tennessee general partnership, New Pond
Village Associates, a Massachusetts general partnership, St. Xxxxxx Nursing Home
Limited Partnership, an Oregon limited partnership, San Marcos Nursing Home
Partnership, a California general partnership, Vencor Hospitals Illinois, Inc.,
a Delaware corporation, Windsor Xxxxx Nursing Home Partnership, a Washington
general partnership, Health Haven Associates, L.P., a Rhode Island limited
partnership, Oak Hill Nursing Associates, L.P., a Rhode Island limited
partnership (collectively, the "Subsidiaries") and Lessor (the Subsidiaries
together with Lessor referred to herein as "Original Lessor"), as lessor, and
Vencor, together with its permitted assigns, including Current Tenant (Vencor
together with Current Tenant referred to herein as "Original Tenant"), as
tenant, entered into that certain Master Lease Agreement, dated April 30, 1998,
and commonly known as Master Lease No. 3 (the "Master Lease Agreement") pursuant
to
which, inter alia, Original Lessor leased to Original Tenant and Original Tenant
leased from Original Lessor the Leased Properties (as defined in the Master
Lease Agreement) (capitalized terms used herein but not defined herein shall
have the meanings assigned to them in the Master Lease Agreement); and
WHEREAS, Ventas claims that pursuant to that certain Assignment and
Assumption of Master Lease, dated April 30, 1998, by and between Vencor, as
assignor, and Current Tenant, as assignee, Vencor assigned all of its right,
title, and interest in, to, and under the Master Lease Agreement to Current
Tenant; and
WHEREAS, Ventas claims that it is the successor by merger to each of
the Subsidiaries, and Ventas LP now has title to the Leased Properties; and
WHEREAS, Ventas claims that Vencor and Current Tenant executed and
delivered that certain Guaranty of Lease, dated as of April 30, 1998; and
WHEREAS, Ventas claims that it, Ventas LP, Current Tenant, and Vencor
entered into that certain First Amendment to Master Lease Agreement, dated as of
December 31, 1998 but effective as of April 30, 1998, pursuant to which the
Master Lease Agreement was amended in several respects; and
WHEREAS, simultaneously with the execution of this Amendment, Ventas
and Vencor shall execute and deliver that certain Second Standstill Agreement;
that certain Tolling Agreement; and Amendments to the other Master Leases and to
the Lease Agreement for the facility commonly known as the Corydon, Indiana
Skilled Nursing Center, each containing substantive terms identical to the terms
of this Amendment (collectively, the "Contemporaneous Agreements"); and
-2-
WHEREAS, the parties hereto desire to further amend the Master Lease
Agreement;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree to amend the aforementioned Master Lease
Agreement as follows:
1. Section 16.4, entitled "Tenant's Obligation to Purchase," is
hereby deleted from the Master Lease Agreement, as of April 30, 1998, as fully
as if such Section had never been contained in such Master Lease Agreement.
2. The parties hereto intend that this Amendment shall become
effective simultaneously with the execution and delivery of the Contemporaneous
Agreements.
3. Except to the extent expressly modified herein, all other terms,
covenants, and conditions of the Master Lease Agreement shall remain unchanged.
4. Each of the undersigned represents that he or she has the
authority to execute this Amendment on behalf of the party or parties for whom
it is executed.
5. This Amendment may be executed in one or more counterparts and by
facsimile, each of which counterparts shall be deemed an original hereof, but
all of which together shall constitute one agreement.
-3-
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and their respective corporate seals to be hereunto affixed and
attested by their respective officers hereunto duly authorized.
LESSOR:
------
WITNESS VENTAS, INC.
-------------------------- By:
Name ---------------------------------
Name:
-------------------------- Title:
Name
VENTAS REALTY, LIMITED PARTNERSHIP
WITNESS By: Ventas, Inc., its general partner
-------------------------- By:
Name ---------------------------------
Name:
-------------------------- Title:
Name
ORIGINAL TENANT:
---------------
WITNESS VENCOR, INC.
-------------------------- By:
Name ---------------------------------
Name:
-------------------------- Title:
Name
WITNESS VENCOR OPERATING, INC.
-------------------------- By:
Name ---------------------------------
Name:
-------------------------- Title:
Name
-4-
SECOND AMENDMENT TO MASTER LEASE AGREEMENT NO. 4
------------------------------------------------
THIS SECOND AMENDMENT TO MASTER LEASE AGREEMENT NO. 4, dated April 12,
1999 (the "Amendment"), is entered into by and among Ventas, Inc., formerly
known as Vencor, Inc., a Delaware corporation ("Ventas") and Ventas Realty,
Limited Partnership, a Delaware limited partnership ("Ventas LP", and together
with Ventas, "Lessor") and Vencor Operating, Inc. ("Current Tenant"), a Delaware
corporation and Vencor, Inc., formerly known as Vencor Healthcare, Inc., a
Delaware corporation ("Vencor").
WHEREAS, First Healthcare Corporation, a Delaware corporation,
Nationwide Care, Inc., an Indiana corporation, Northwest Health Care, Inc., an
Idaho corporation, Hillhaven of Central Florida, Inc., a Delaware corporation,
Vencor Hospitals East, Inc., a Delaware corporation, Hahnemann Hospital, Inc., a
Delaware corporation, Hillhaven/Indiana Partnership, a Washington general
partnership, Carrollwood Care Center, a Tennessee general partnership, New Pond
Village Associates, a Massachusetts general partnership, St. Xxxxxx Nursing Home
Limited Partnership, an Oregon limited partnership, San Marcos Nursing Home
Partnership, a California general partnership, Vencor Hospitals Illinois, Inc.,
a Delaware corporation, Windsor Xxxxx Nursing Home Partnership, a Washington
general partnership, Health Haven Associates, L.P., a Rhode Island limited
partnership, Oak Hill Nursing Associates, L.P., a Rhode Island limited
partnership (collectively, the "Subsidiaries") and Lessor (the Subsidiaries
together with Lessor referred to herein as "Original Lessor"), as lessor, and
Vencor, together with its permitted assigns, including Current Tenant (Vencor
together with Current Tenant referred to herein as "Original Tenant"), as
tenant, entered into that certain Master Lease Agreement, dated April 30, 1998,
and commonly known as Master Lease No. 4 (the "Master Lease Agreement") pursuant
to
which, inter alia, Original Lessor leased to Original Tenant and Original Tenant
leased from Original Lessor the Leased Properties (as defined in the Master
Lease Agreement) (capitalized terms used herein but not defined herein shall
have the meanings assigned to them in the Master Lease Agreement); and
WHEREAS, Ventas claims that pursuant to that certain Assignment and
Assumption of Master Lease, dated April 30, 1998, by and between Vencor, as
assignor, and Current Tenant, as assignee, Vencor assigned all of its right,
title, and interest in, to, and under the Master Lease Agreement to Current
Tenant; and
WHEREAS, Ventas claims that it is the successor by merger to each of
the Subsidiaries, and Ventas LP now has title to the Leased Properties; and
WHEREAS, Ventas claims that Vencor and Current Tenant executed and
delivered that certain Guaranty of Lease, dated as of April 30, 1998; and
WHEREAS, Ventas claims that it, Ventas LP, Current Tenant, and Vencor
entered into that certain First Amendment to Master Lease Agreement, dated as of
December 31, 1998 but effective as of April 30, 1998, pursuant to which the
Master Lease Agreement was amended in several respects; and
WHEREAS, simultaneously with the execution of this Amendment, Ventas
and Vencor shall execute and deliver that certain Second Standstill Agreement;
that certain Tolling Agreement; and Amendments to the other Master Leases and to
the Lease Agreement for the facility commonly known as the Corydon, Indiana
Skilled Nursing Center, each containing substantive terms identical to the terms
of this Amendment (collectively, the "Contemporaneous Agreements"); and
-2-
WHEREAS, the parties hereto desire to further amend the Master Lease
Agreement;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree to amend the aforementioned Master Lease
Agreement as follows:
1. Section 16.4, entitled "Tenant's Obligation to Purchase," is
hereby deleted from the Master Lease Agreement, as of April 30, 1998, as fully
as if such Section had never been contained in such Master Lease Agreement.
2. The parties hereto intend that this Amendment shall become
effective simultaneously with the execution and delivery of the Contemporaneous
Agreements.
3. Except to the extent expressly modified herein, all other terms,
covenants, and conditions of the Master Lease Agreement shall remain unchanged.
4. Each of the undersigned represents that he or she has the
authority to execute this Amendment on behalf of the party or parties for whom
it is executed.
5. This Amendment may be executed in one or more counterparts and by
facsimile, each of which counterparts shall be deemed an original hereof, but
all of which together shall constitute one agreement.
-3-
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and their respective corporate seals to be hereunto affixed and
attested by their respective officers hereunto duly authorized.
LESSOR:
------
WITNESS VENTAS, INC.
-------------------------- By:
Name ---------------------------------
Name:
-------------------------- Title:
Name
VENTAS REALTY, LIMITED PARTNERSHIP
WITNESS By: Ventas, Inc., its general partner
-------------------------- By:
Name ---------------------------------
Name:
-------------------------- Title:
Name
ORIGINAL TENANT:
---------------
WITNESS VENCOR, INC.
-------------------------- By:
Name ---------------------------------
Name:
-------------------------- Title:
Name
WITNESS VENCOR OPERATING, INC.
-------------------------- By:
Name ---------------------------------
Name:
-------------------------- Title:
Name
-4-
EXHIBIT C
---------
FIRST AMENDMENT TO CORYDON, INDIANA LEASE AGREEMENT
---------------------------------------------------
THIS FIRST AMENDMENT TO CORYDON, INDIANA LEASE AGREEMENT, dated April
12, 1999 (the "Amendment"), is entered into by and between Ventas Realty,
Limited Partnership, a Delaware limited partnership ("Lessor"), and Vencor
Nursing Centers Limited Partnership, a Delaware limited partnership ("Tenant").
WHEREAS, Lessor and Tenant entered into that certain Lease Agreement,
dated as of August 7, 1998 (the "Corydon, Indiana Lease Agreement") pursuant to
which Lessor leased to Tenant and Tenant leased from Lessor a certain facility
commonly known as the Corydon, Indiana Skilled Nursing Center (capitalized terms
used herein but not defined herein shall have the meanings assigned to them in
the Corydon, Indiana Lease Agreement); and
WHEREAS, Ventas claims that Vencor, Inc. ("Vencor") and Vencor
Operating, Inc. executed and delivered that certain Guaranty of Lease, dated as
of August 7, 1998; and
WHEREAS, simultaneously with the execution of this Amendment, Ventas,
Inc. ("Ventas") and Vencor shall execute and deliver that certain Second
Standstill Agreement; that certain Tolling Agreement; and Amendments to those
four certain Master Leases dated as of April 30, 1998 between Ventas, Vencor,
and the other parties thereto, each containing substantive terms identical to
the terms of this Amendment (collectively, the "Contemporaneous Agreements");
and
WHEREAS, the parties hereto desire to amend the Corydon, Indiana Lease
Agreement;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree to amend the aforementioned Corydon,
Indiana Lease Agreement as follows:
1. Section 16.4, entitled "Tenant's Obligation to Purchase," is
hereby deleted from the Corydon, Indiana Lease Agreement, as of August 7, 1998,
as fully as if such Section had never been contained in such Corydon, Indiana
Lease Agreement.
2. The parties hereto intend that this Amendment shall become
effective simultaneously with the execution and delivery of the Contemporaneous
Agreements.
3. Except to the extent expressly modified herein, all other terms,
covenants, and conditions of the Corydon, Indiana Lease Agreement shall remain
unchanged.
4. Each of the undersigned represents that he or she has the
authority to execute this Amendment on behalf of the party or parties for whom
it is executed.
5. This Amendment may be executed in one or more counterparts and by
facsimile, each of which counterparts shall be deemed an original hereof, but
all of which together shall constitute one agreement.
[INTENTIONALLY LEFT BLANK]
-2-
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and their respective corporate seals to be hereunto affixed and
attested by their respective officers hereunto duly authorized.
LESSOR:
------
VENTAS REALTY, LIMITED PARTNERSHIP
WITNESS By: Ventas, Inc., its general partner
By:
--------------------- ---------------------
Name Name:
Title:
---------------------
Name
TENANT:
------
VENCOR NURSING CENTERS
LIMITED PARTNERSHIP
WITNESS By: Vencor Operating, Inc., its general partner
By:
--------------------- ---------------------
Name Name:
Title:
--------------------
Name
-3-
