EXHIBIT 10.84
EXECUTION COPY
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SECOND SPECIFIC PROPERTY LEASE AMENDMENT
BY AND AMONG
KINDRED HEALTHCARE, INC.,
KINDRED HEALTHCARE OPERATING, INC., AND
VENTAS REALTY, LIMITED PARTNERSHIP
Master Lease No.: 1
Facility No.: MA #985
Property Address: 000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx
Index No.: 1-54
This Specific Property Lease Amendment (this "Amendment") is made and
entered into as of the 19th day of December, 2002, by and between Ventas Realty,
Limited Partnership, a Delaware limited partnership (together with its
successors and assigns, "Lessor") having an office at 0000 Xxxxxxxxxx Xxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, and Kindred Healthcare, Inc., a Delaware
corporation formerly known as Vencor, Inc., and Kindred Healthcare Operating,
Inc., a Delaware corporation formerly known as Vencor Operating, Inc.
("Operator")(Operator, jointly and severally with Kindred Healthcare, Inc. and
their permitted successors and assignees, "Tenant"), both having an office at
000 Xxxxx 0xx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
W I T N E S S E T H:
A. WHEREAS, Lessor and Tenant have heretofore entered into a certain Amended
and Restated Master Lease Agreement No. 1 dated as of April 20, 2001 (as
the same may have heretofore been, is hereby, or may hereafter be amended,
amended and restated, supplemented, modified, renewed, extended or
replaced, the "Lease") demising to Tenant, among other properties, the real
property described in Exhibit A attached hereto and made a part hereof and
commonly known as Xxxxxxxxxx House Nursing and Rehabilitation Center,
together with the improvements thereon (the "Existing Leased Premises").
B. WHEREAS, as of the date hereof, Lessor, with the consent of Tenant, will
subject certain contiguous parcels of real property located in Walpole,
Massachusetts, including the Existing Leased Premises, to a condominium
form of ownership to be known as the New Pond Village Condominium (the
"Condominium") and to be governed by a Master Deed (the "Master Deed"),
Unit Deeds (the "Unit Deeds"), a Declaration of Trust (the "Declaration of
Trust"), Condominium Bylaws (the "Bylaws"), and Rules and Regulations (the
"Rules and Regulations"; and together with the Master Deed, the Unit Deeds,
the Declaration of Trust, the Bylaws and any other document governing the
Condominium, each as amended from time to time, the "Condominium
Documents") by the recording of the Master Deed, Units Deeds, and
Declaration of Trust dated as of the date hereof.
C. WHEREAS, the Condominium shall contain a Nursing Home Unit (consisting of
certain portions of the Existing Leased Premises) and an
Independent/Assisted Living Facility Unit, and certain general and limited
common elements appurtenant thereto, all as described in the Condominium
Documents.
D. WHEREAS, Lessor and Tenant desire to amend the Lease, as it relates to the
Existing Leased Premises, on the terms described in this Amendment.
E. WHEREAS, capitalized terms not defined herein shall have the meanings given
to them in the Condominium Documents.
NOW, THEREFORE, in consideration of the covenants set forth herein, the
payment of One Dollar ($1.00), and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Lessor and Tenant
hereby mutually covenant and agree as follows:
1. As of the date hereof, the Lease, as it applies to the Existing Leased
Premises, is amended: (a) to confirm and adopt the amended legal description
that is attached hereto and made a part hereof as Exhibit B (the "Revised Leased
Premises") in substitution for the Existing Leased Premises for all purposes
under the Lease, and (b) to confirm Tenant's agreement to treat the Condominium
Documents as "Permitted Encumbrances," as defined in, and for all purposes of,
the Lease, and to subordinate the Lease to the Condominium Documents.
2. Tenant hereby accepts and ratifies the provisions of the Condominium
Documents, and agrees that all such provisions are and shall be deemed to be
covenants running with the land which bind Tenant and its successors in interest
as if such provisions were recited or stipulated at length herein. Tenant agrees
that the Lease, as it relates to the Revised Leased Premises, is and shall
remain subordinate in every respect to the Condominium Documents and to Chapter
183A of the Massachusetts General Laws, in each case as amended from time to
time. As long as Tenant is a tenant of the Nursing Home Unit, and there is not
then continuing an Event of Default (as such term is defined in the Lease) of
Tenant, Tenant shall be permitted, but not required (unless any such step
represents a duty, liability or obligation of Tenant by virtue of the
Condominium Documents being deemed "Permitted Encumbrances" for purposes of the
Lease), to take such steps as are reasonably necessary to cure, on behalf of
Lessor, any default under the Condominium Documents that results from a failure
by Lessor to perform any duty or satisfy any liability or obligation under the
Condominium Documents.
3. Lessor hereby covenants that, as long as Tenant is a tenant of the Nursing
Home Unit, and there is not then continuing an Event of Default (as such term is
defined in the Lease) of Tenant, in addition to any other obligations of Lessor
under the Lease, Lessor shall:
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(a) Pay to (or credit to the account of) Tenant (i) any amounts refunded
to Lessor or otherwise credited, as a refund, to the account of
Lessor, as the Nursing Home Unit Owner, in respect of Common Expenses
previously paid directly or indirectly by Tenant, and (ii) any amounts
paid to Lessor or otherwise credited back to the account of Lessor, as
the Nursing Home Unit Owner, pursuant to the last sentence of Section
7(d) of the Bylaws, but only if the casualty damage to which such
proceeds relate is fully repaired and restored; Lessor agreeing that
Lessor shall take any commercially reasonable steps available to
Lessor under the Condominium Documents which are reasonably requested
by Tenant to ensure that any repair or restoration of the General
Common Elements that is to be undertaken by the Condominium Trust is
completed to the standard and within the time frame provided in the
Condominium Documents. As used in this Amendment, references to
amounts "indirectly paid" by Tenant mean amounts paid by Tenant to
Lessor specifically in respect of amounts owed by Lessor to the
Condominium Trust;
(b) Fund the Reserves required to be funded pursuant to Section 3(c) of
the Bylaws; provided that Tenant shall reimburse Lessor on demand for
the Nursing Home Unit's share of any amounts drawn down by the
Condominium Trust from such Reserves to the extent such draw down is
utilized to pay for expenditures for which Tenant (and not Lessor) is
responsible under the Lease and this Amendment;
(c) Upon written request of Tenant, make all requisite arrangements on
Tenant's behalf to permit Tenant to obtain access to all reports,
documents, and information to which Lessor is entitled as a Unit Owner
of the Condominium or provide certified and complete copies of all of
the foregoing received by Lessor in its capacity as the Nursing Home
Unit Owner; and
(d) (i) Upon the written request of Tenant, cause any of Tenant's
Leasehold Mortgagees (as defined in the Lease) with an interest in the
Revised Leased Premises (including, as of the date hereof, JPMorgan
Chase Bank (f/k/a The Chase Manhattan Bank, successor by merger to
Xxxxxx Guaranty Trust Company of New York), as senior collateral agent
and as second priority collateral agent (in such capacity, "XX Xxxxxx
Chase Bank") to be added as a "Listed Mortgagee" for all purposes
under the Condominium Documents, and (ii) cause Tenant to be added as
a "Listed Mortgagee" solely for purposes of Section 7(b) of the
Bylaws.
4. Lessor and Tenant agree that, with respect to the Tenant
Consent/Approval/Agreement Matters defined in Section 5 below:
(a) Whenever the consent, approval or agreement of Lessor, as owner
of the Nursing Home Unit (Lessor or any successor-in-interest of
Lessor under
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the Condominium Documents, in such capacity, the "Nursing Home
Unit Owner"), or the Trustee appointed by the Nursing Home Unit
Owner ("Nursing Home Unit Trustee") is required before an action
with respect to a Tenant Consent/Approval/Agreement Matter may be
taken, continued or terminated, Lessor shall notify Tenant (with
a copy to any party added as a "Listed Mortgagee" pursuant to
Section 3(d)(i) above) in writing thereof (a
"Consent/Approval/Agreement Notice"), and such notification shall
be sent to Tenant as quickly as is commercially reasonable
(taking into account Lessor's obligation to include in such
Consent/Approval/Agreement Notice certain information as more
fully provided in Section 4(d) below) after Lessor learns that
such action is of the type covered by this Section 4 and, in any
event, prior to any such action's being taken, continued or
terminated;
(b) Within ten (10) days following Tenant's receipt of a
Consent/Approval/Agreement Notice (or, if the Nursing Home Unit
Owner or the Nursing Home Unit Trustee, as applicable, is
required to take action with respect to such matter within a
shorter period of time, within the shorter of (x) three (3)
business days following Tenant's receipt of the Consent/Approval/
Agreement Notice and (y) an amount of time following Tenant's
receipt of the Consent/Approval/Agreement Notice equal to
three-quarters (3/4) of the time available under the Condominium
Documents to the Nursing Home Unit Owner or the Nursing Home Unit
Trustee, as applicable, to make such decision) (such time period,
the "Decision Period"), Tenant shall notify Lessor (with a copy
to any party added as a "Listed Mortgagee" pursuant to Section
3(d)(i) above) in writing (a "Tenant Response Notice") as to
whether it wishes to grant its consent, approval or agreement to
the proposed Consent/Approval/Agreement Matter or to withhold its
consent, approval or agreement to such proposed matter (it being
agreed by Tenant and Lessor that, if Tenant shall not so respond
to Lessor within the Decision Period, Tenant shall be deemed to
have granted its consent, approval and agreement to whatever
action the Nursing Home Unit Owner or the Nursing Home Unit
Trustee, as the case may be, shall choose to take with respect to
such matter)
(c) If, pursuant to subparagraph (b) above, a Tenant Response Notice
notifies Lessor of Tenant's decision to withhold its consent,
approval or agreement with respect to a particular Tenant
Consent/Approval/Agreement Matter, such Tenant Response Notice
must also specify either (i) the reason or reasons for Tenant's
withholding such consent, approval or agreement, or (ii) as
described in subparagraph (d) below, that Tenant is not required
to provide any such reason;
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(d) In granting or withholding its consent, approval or agreement to
any proposed action described in a Consent/Approval/Agreement
Notice, Tenant shall be required to adhere to the same decision
making standard as is required of the Nursing Home Unit Owner or
the Nursing Home Unit Trustee, as applicable, by the terms, or
legal effect, of the Condominium Documents (and Lessor agrees (x)
to use its best efforts to identify the applicable standard in
the Consent/Approval/Agreement Notice and (y) upon request of
Tenant, to confer with Tenant in connection with its
identification of the applicable standard for purposes of
complying with the terms of this sentence). For example, (i) if
the Condominium Documents provide that the Nursing Home Unit
Owner or Nursing Home Unit Trustee, as applicable, may grant or
withhold its consent, approval or agreement to a particular
Tenant Consent/Approval/Agreement Matter in its sole discretion,
then Tenant may grant or withhold its consent, approval or
agreement thereto in its sole discretion, and in such case Tenant
may specify in its Tenant Response Notice that it is permitted to
take such action in its sole discretion and is not otherwise
required to provide a reason for such granting or withholding,
and (ii) if the Condominium Documents provide that the Nursing
Home Unit Owner or the Nursing Home Unit Trustee, as applicable,
may withhold its consent, approval or agreement to a particular
Tenant Consent/Approval/Agreement Matter only for a reasonable
reason or reasons, then Tenant must adhere to such standard, and
in such case, Tenant must specify in its Tenant Response Notice a
reasonable reason or reasons for its decision contained therein;
(e) (i) If, in a Tenant Response Notice, Tenant has withheld its
consent, approval or agreement to any Tenant
Consent/Approval/Agreement Matter, then Lessor, as the Nursing
Home Unit Owner, shall, or shall require the Nursing Home Unit
Trustee to, as applicable, withhold its consent, approval or
agreement to such Tenant Consent/Approval/Agreement Matter; and
(ii) If, in a Tenant Response Notice, Tenant has granted (or been
deemed to have granted) its consent, approval or agreement
to a particular Tenant Consent/Approval/Agreement Matter,
then:
(1) if such matter is one of the Tenant Consent/Approval/
Agreement Matters described in any of Sections 5(a)
through (e) and 5(i) below, Lessor, as the Nursing Home
Unit Owner, shall, or shall instruct the Nursing Home
Unit Trustee to, as applicable, grant its consent,
approval or agreement to such Tenant Consent/
Approval/Agreement Matter unless it has a reasonable
reason or reasons for withholding the same, and
(2) if such matter is one of the Tenant Consent/Approval/
Agreement Matters described in any of Sections 5(f)
through (h) or Sections 5(j) through (l) below, Lessor,
as the Nursing Home Unit Owner,
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may, or may instruct the Nursing Home Unit Trustee to, as
applicable, grant or withhold its consent, approval or agreement
to such Tenant Consent/Approval/Agreement Matter in its sole
discretion; provided that, if in a Tenant Response Notice, Tenant
has expressly granted its consent, approval or agreement to a
particular Tenant Consent/Approval/Agreement Matter, Lessor, as
the Nursing Home Unit Owner, shall, or shall require the Nursing
Home Unit Trustee to, as applicable, grant its consent, approval
or agreement to such Tenant Consent/Approval/Agreement Matter if
(A) such matter is a Tenant Consent/Approval/Agreement Matter
described in Section 5(j) and also relates solely to a matter to
which Tenant would have been permitted under the Lease to grant
its consent, approval or agreement without further input from or
action on the part of Lessor before the Leased Premises were
subject to a condominium regime, and (B) the proposed allocation
of Common Expenses would cause the Nursing Home Unit Owner's
allocated Common Expenses at all times to be lower than they are
at the time the relevant Consent/Approval/Agreement Notice is
sent; and (C) either (I) the granting of a consent, approval or
agreement to the relevant Consent/Approval/Agreement Matter will
not otherwise adversely affect Lessor or the Nursing Home Unit
(as determined by the Lessor in its reasonable discretion), or
(II) the consent, approval or agreement will be revocable by
Lessor in its sole discretion at the termination of the Lease
such that Lessor will not be bound by the reallocation after the
termination of the Lease.
5. The "Tenant Consent/Approval/Agreement Matters" are limited to the following:
(a) the adjustment of any casualty or condemnation losses affecting the
General Common Elements;
(b) the granting of permission to allow the Nursing Home Unit, the Nursing
Home Unit Limited Common Elements, the General Common Elements, or
utilities serving the Nursing Home Unit, the Nursing Home Unit Limited
Common Elements, or the General Common Elements to be obstructed or
otherwise cut off during construction by the Board of Trustees or any Unit
Owner (or their tenant(s));
(c) any action pursuant to which parking, other paved facilities or other
improvements in the General Common Elements would be materially expanded;
(d) the appointment of a new Managing Agent of the Condominium;
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(e) the amendment, rescission, or waiver of any material provision of any
management agreement;
(f) any decisions with respect to the General Common Elements (including
adopting Budgets) which will result in costs to or other obligations of
Tenant which are materially higher than the costs to and obligations of
Tenant immediately prior to such decision;
(g) the termination and/or partition of the Condominium to the extent such
action would cause adverse regulatory consequences (e.g., licensure or
zoning violations or violations of the Permitting Decisions) to Tenant;
(h) the amendment, rescission, or waiver of any material provision of the
Condominium Documents in a manner that would materially increase Tenant's
direct or indirect obligations or liabilities under the Condominium
Documents;
(i) a decision not to restore the General Common Elements following a
casualty or condemnation;
(j) the allocation of any Common Expense in a manner other than based on
Percentage Interests and/or Beneficial Interests;
(k) the adjustment or amendment of the Percentage Interests or Beneficial
Interest of any Unit Owner; or
(l) any material amendment to the permitted uses of all or any portion of
the Condominium property.
6. Tenant hereby covenants that, as long as Tenant is a tenant of the Nursing
Home Unit, Tenant shall:
(a) provide prompt notice to Lessor of any written notice it receives of:
(i) any violation of any Legal Requirements (as defined in the
Condominium Documents) affecting the Revised Leased Premises or the
Condominium; and
(ii) any change in its insurance coverage relating to the Revised
Leased Premises.
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(b) operate the Nursing Home Unit in a manner which is consistent with, and
will not cause a default under, the Condominium Documents.
7. Each of Lessor and Tenant agrees that a breach by it under this Amendment
shall also constitute a breach of a Permitted Encumbrance by it under the Lease,
subject in all respects to the terms and conditions of the Lease, including,
without limitation, the limitations set forth in clauses (a) through (c) of
Section 8.3.1 of the Lease, the notice and cure rights afforded to Tenant under
Section 8.3 of the Lease, and the indemnification obligations of Tenant under
Section 24.1 of the Lease.
8. This Amendment is being executed to amend the Lease as it applies to the
Revised Leased Premises, and is not intended to amend the Lease in any respect
other than as expressly provided herein. Without limitation of the foregoing,
Lessor and Tenant acknowledge and agree that the Lease relates to the Revised
Leased Premises and multiple other properties and that, as provided in the
Lease, the Lease demises all of such properties as a unified commercial
operating lease and Lessor is not obligated, and may not be required, to lease
less than all of such properties pursuant to the Lease. As amended hereby, the
Lease remains in full force and effect and shall bind and inure to the benefit
of Lessor and Tenant and their respective successors and assigns and all those
claiming by, through or under them.
9. This Amendment may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
instrument, with the same effect as if the signatures thereto were upon the same
instrument.
10. Notwithstanding anything to the contrary contained in the Lease, unless a
cost (i) is incurred as a result of an act or omission by Tenant in
contravention of the Lease, or (ii) is otherwise the obligation of Tenant
pursuant to Section 24.1 of the Lease, or (iii) is incurred at the request of
Tenant, Lessor hereby agrees that Tenant shall not be responsible for paying the
following amounts relating to the Condominium:
(a) any cost or expenses incidental to (i) fidelity bonds or (ii) fidelity
insurance coverage, in each case, purchased and maintained by the
Trustees pursuant to the Condominium Documents;
(b) the cost or expense of any compensation paid to the Trustees pursuant
to the second paragraph of Section 3(n) of the Declaration of Trust;
(c) any costs or expense arising in connection with the Indemnity of the
Trustees set forth in Section 3(o) of the Declaration of Trust;
(d) the cost of (i) any collection, suit, foreclosure or other action
undertaken in connection with a default by the Nursing Home Unit Owner
under the Condominium Documents (including any action to enjoin, xxxxx
or remedy such default), (ii) any cure of a default by the Nursing
Home Unit Owner under the Condominium Documents, or (iii) any default
interest payable by the Nursing
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Home Unit Owner in connection with the foregoing items (i) and (ii),
in each case if and to the extent such cost is owed to the Board of
Trustees, the Managing Agent or the Unit Owner of the
Independent/Assisted Living Unit pursuant to the Condominium Documents
(including, without limitation, Section 17(b)(i), (b)(ii) or (b)(iii)
of the Bylaws); and
(e) any liability under the indemnity provision set forth in clause (i) of
the second paragraph of Section 8(a) of the Master Deed.
11. Provided that the same is executed and delivered to Tenant by each
counterparty thereto, Tenant hereby agrees to execute, deliver and perform a
letter agreement in the form attached hereto as Exhibit C, whereby Tenant will
agree, pursuant to the terms set forth in said letter agreement, to provide
priority placement in its facility located on the Revised Leased Premises for
the residents of the ILF/ALF Facility (as such term is defined in such Exhibit
C), and the owner of the ILF/ALF Facility will agree, pursuant to the terms set
forth in said letter agreement, to provide priority placement in the ILF/ALF
Facility to the residents of Tenant's facility located on the Revised Leased
Premises.
12. Lessor hereby agrees to indemnify Tenant and any mortgagee of Tenant and
hold Tenant and any mortgagee of Tenant harmless from and against the following:
(a) any loss, damage or other cost (including, without limitation,
reasonable out-of-pocket attorneys' fees) sustained by such party if,
as a result of the submission of the property to the Condominium, any
part of the Revised Leased Premises is held to be (i) a subdivision
under Massachusetts law, or (ii) in violation of applicable zoning
rules and regulations (including, without limitation, the Permitting
Decisions);
(b) any loss, damage or other cost (including, without limitation,
reasonable out-of-pocket attorneys' fees) sustained by such party
resulting from Lessor's default under the Condominium Documents as the
Nursing Home Unit Owner; provided that no such loss, damage or other
cost (i) is incurred as a result of an act or omission by Tenant in
contravention of the Lease, or (ii) is otherwise the obligation of
Tenant pursuant to the Lease, including, without limitation, Section
24.1 thereof, or (iii) is incurred at the request of Tenant.
13. Lessor hereby covenants that Lessor shall send written notice to all parties
to the Condominium Documents within five (5) business days of the date hereof
(and, in the case of any management agreement relating to any Managing Agent,
Lessor shall send written notice to all parties to such agreement within five
(5) business days of the date such agreement is executed if so permitted
therein), which notice shall state that, for so long as Tenant is the tenant of
the Nursing Home Unit, copies of all notices delivered to Lessor pursuant to
such agreements shall also be delivered to the following at the following
addresses (or to such other addresses as may, from time to time, be supplied to
Lessor by Tenant):
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Kindred Healthcare, Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxxxx, Xx.
e-mail: Xxxxx_Xxxxxxxxxxx@xxxxxxxxxxxxxxxxx.xxx
Telephone: 000-000-0000
With a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
e-mail: xxxxxxxxx@xxxx.xxx
Telephone: (000) 000-0000
14. Lessor and Tenant hereby acknowledge that, as between Lessor and Tenant, the
provisions of the Lease relating to the use and disposition of insurance and
condemnation proceeds, including without limitation, the provisions of Section
14.1 thereof, continue in full force and effect, and, to the extent that such
provisions of the Lease require that such proceeds of insurance or condemnation
proceeds are to be paid or are payable to Tenant, but Lessor, as the Nursing
Home Unit Owner, instead receives or is entitled to receive such proceeds in
accordance with the terms of the Condominium Documents, then Lessor hereby (a)
absolutely and unconditionally assigns such proceeds to Tenant, to be held or
applied by Tenant in a manner consistent with the provisions of the Lease, and
(b) further agrees that, if Lessor receives any insurance or condemnation
proceeds assigned to Tenant pursuant to the foregoing clause (a), Lessor shall
be deemed to be holding the same in trust for the benefit of Tenant and shall
immediately cause such proceeds to be paid to Tenant. Lessor agrees that the
assignment provided for in this Section 14 constitutes a present, outright,
immediate, continuing and absolute assignment. Lessor further agrees that such
assignment shall not be construed to impose any obligation upon Tenant other
than the obligations otherwise applicable to Tenant under the Lease.
15. The easements, rights and appurtenances benefiting the Nursing Home Unit
under the Condominium Documents shall be deemed to be "easements, rights and
appurtenances relating to the Land and the Leased Improvements" for purposes of
Section 1.1(iii) of the Lease.
16. As provided in the Bylaws, the Lease shall be subject in every respect to
Chapter 183A, the Master Deed, the Declaration of Trust, and the Bylaws and
Rules and Regulations, in each case as amended from time to time.
17. Notwithstanding anything to the contrary contained herein, no action taken
by Tenant (and no failure to act on the part of Tenant), to the extent expressly
permitted under the terms of this Amendment, shall be deemed to violate Tenant's
obligations under Section 8.3 of the Lease, nor shall any such action (or
failure to act), even if leading to a default under the Condominium Documents,
constitute a default under the Lease.
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18. Lessor hereby covenants that if, following a substantial casualty or
condemnation involving the Nursing Home Unit and the Limited Common Element
appurtenant thereto, Tenant offers to acquire the same from Lessor pursuant to
Section 14.2.1(B) of the Lease, and such offer is made within the 120-day period
immediately following such casualty or condemnation, then Lessor shall accept or
reject such offer within sixty (60) days of Lessor's receipt of such offer from
Tenant (Lessor agreeing that any failure to so accept or reject such offer
within such time period shall be deemed to be a rejection thereof for all
purposes under the Lease).
19. Except as amended hereby, the Lease remains in full force and effect and
shall bind and inure to the benefit of Lessor and Tenant as provided therein.
[Signatures appear on the following page.]
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IN WITNESS WHEREOF, the parties hereto have executed this Specific Property
Lease Amendment the day and year first above written.
TENANT:
[Seal] KINDRED HEALTHCARE, INC., a Delaware corporation
By: /s/ Xxxxx Xxxxxxxxxxx
--------------------------------------------
Xxxxx Xxxxxxxxxxx, Senior Vice President -
Planning and Development
By: /s/ Xxxx Xxxxxxxx
--------------------------------------------
Xxxx Xxxxxxxx, Assistant Treasurer
[Seal] KINDRED HEALTHCARE OPERATING, INC., a
Delaware corporation
By: /s/ Xxxxx Xxxxxxxxxxx
---------------------------------------------
Xxxxx Xxxxxxxxxxx, Senior Vice President -
Planning and Development
By: /s/ Xxxx Xxxxxxxx
---------------------------------------------
Xxxx Xxxxxxxx, Assistant Treasurer
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State / Commonwealth of Kentucky
County of Jefferson December 18, 2002
On this 18 day of December, 2002, before me appeared Xxxxx Xxxxxxxxxxx, Senior
Vice President - Planning and Development of Kindred Healthcare, Inc. and
Kindred Healthcare Operating, Inc., each a Delaware corporation, who
acknowledged the foregoing to be his free act and deed, and the free act and
deed of each of Kindred Healthcare, Inc. and Kindred Healthcare Operating, Inc.
before me.
/s/ Xxxx X. Xxxxxx
------------------------------------
Notary Public
My commission expires: Apr 23, 0000
Xxxxx / Xxxxxxxxxxxx xx Xxxxxxxx
Xxxxxx of Jefferson December 18, 2002
On this 18 day of December, 2002, before me appeared Xxxx Xxxxxxxx, Assistant
Treasurer of Kindred Healthcare, Inc. and Kindred Healthcare Operating, Inc.,
each a Delaware corporation, who acknowledged the foregoing to be his free act
and deed, and the free act and deed of each of Kindred Healthcare, Inc. and
Kindred Healthcare Operating, Inc. before me.
/s/ Xxxx X. Xxxxxx
------------------------------------
Notary Public
My commission expires: Apr. 23, 2006
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LESSOR:
[Seal] VENTAS REALTY, LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Ventas, Inc., a Delaware
corporation, its general partner
By: /s/ T. Xxxxxxx Xxxxx
---------------------------------
T. Xxxxxxx Xxxxx, Executive
Vice President
State / Commonwealth of Kentucky
County of Jefferson December 11, 2002
On this 11th day of December, 2002, before me appeared T. Xxxxxxx Xxxxx,
Executive Vice President of Ventas, Inc., a Delaware corporation, general
partner of Ventas Realty, Limited Partnership, a Delaware limited partnership,
who acknowledged the foregoing to be his free act and deed, and the free act and
deed of Ventas Realty, Limited Partnership, before me.
/s/ Xxxx X. Xxxxx
------------------------------------
Notary Public
My commission expires: 3/28/05
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The foregoing Amendment is consented to and agreed to by Tenant's Leasehold
Mortgagee, JPMorgan Chase Bank (f/k/a The Chase Manhattan Bank, successor by
merger to Xxxxxx Guaranty Trust Company of New York), as senior collateral agent
and as second priority collateral agent.
JPMORGAN CHASE BANK (f/k/a The
Chase Manhattan Bank, successor
by merger to Xxxxxx Guaranty
Trust Company of New York), as
senior collateral agent and as
second priority collateral agent:
By: /s/ Xxxx Xxx Xxx
Name: Xxxx Xxx Xxx
Title: Vice President
State / Commonwealth of New York
County of New York December 11, 2002
On this 13th day of December, 2002, before me appeared Xxxx Xxx Xxx, Vice
President of JPMorgan Chase Bank, a New York banking corporation, in its
capacity as senior collateral agent and as second priority collateral agent, who
acknowledged the foregoing to be his free act and deed, and the free act and
deed of JPMOrgan Chase Bank, before me.
/s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Notary Public
My commission expires:
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EXHIBIT A
EXISTING LEASED PREMISES
That certain parcel of land shown as "Lot 2, Area 425,606 S.F., 9.77 Ac." on a
plan entitled "Plan of Land in Walpole, Mass." dated March 20, 1986 by Xxxxxxx
Engineering Co., Inc., as recorded with the Norfolk County Registry of Deeds in
Plan Book 372 and Plan No. 1024 of 1988.
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EXHIBIT B
REVISED LEASE PREMISES
(DESCRIPTION OF NURSING HOME UNIT)
The Nursing Home Unit of New Pond Village Condominium, together with all
appurtenant easements and an undivided percentage of the common elements as
established by Master Deed executed by Ventas Realty, Limited Partnership, dated
____________________, 2002, and recorded with the Norfolk County Registry of
Deeds in Book _____, Page _____.
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EXHIBIT C
FORM OF LETTER AGREEMENT
VENTAS REALTY, LIMITED PARTNERSHIP
0000 Xxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
___________________, 2002
New Pond Village Associates
c/o Atria, Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Re: New Pond Village Condominium
Ladies and Gentlemen:
This letter agreement shall serve to acknowledge our respective ownership
of the Nursing Home Unit and the Independent/Assisted Living Unit in the above
referenced Condominium and confirm our understanding with respect to (i) the
admission of residents of the independent and/or assisted living facility (the
"ILF/ALF Facility") operated at the Independent/Assisted Living Facility Unit to
the nursing home/health care facility (the "Nursing Facility") operated at the
Nursing Home Unit and (ii) the admission of the residents of the Nursing
Facility to the ILF/ALF Facility.
For so long as the Ventas Realty, Limited Partnership, or any of its
affiliates, owns the Nursing Home Unit, it shall admit or shall cause the tenant
thereof to admit to the Nursing Facility, on a priority basis, to the extent
allowable by law, any resident of ILF/ALF Facility, provided that such resident
is seeking admission to the Nursing Facility and meets the then applicable
criteria of the Nursing Facility for admission.
For so long as the New Pond Village, LLC or any of its affiliates, owns the
ILF/ALF Facility, it shall admit or shall cause the tenant thereof to admit to
the ILF/ALF Facility, on a priority basis, to the extent allowable by law, any
resident of Nursing Facility, provided that such resident is seeking admission
to the ILF/ALF Facility and meets the then applicable criteria of the ILF/ALF
Facility for admission, purchases the requisite Mortgage Bond and enters into
the then applicable Residency Agreement.
Very truly yours,
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NURSING HOME UNIT OWNER
VENTAS REALTY, LIMITED PARTNERSHIP, a
Delaware limited partnership
By: Ventas, Inc., a Delaware corporation,
its general partner
By:
---------------------------------------
T. Xxxxxxx Xxxxx, Executive Vice
President
AGREED TO:
NEW POND VILLAGE, LLC, a Delaware limited liability company
By: Atria, Inc., a Delaware corporation, its sole Member
By:
----------------------------------------------------
Xxxxxx Xxxxxxxxxxx, Senior Vice President
AGREED TO:
KINDRED HEALTHCARE, INC., a Delaware corporation
By:
----------------------------------------------------
Xxxxx Xxxxxxxxxxx, Senior Vice President - Planning
and Development
KINDRED HEALTHCARE OPERATING, INC., a Delaware corporation
By:
----------------------------------------------------
Xxxxx Xxxxxxxxxxx, Senior Vice President - Planning
and Development
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