EXHIBIT 10.5.4.1
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into by and
between VENTAS TRS, LLC, a Delaware limited liability company ("Seller") and
GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation ("Purchaser") this
27th day of December, 2002 (the "Closing Date").
RECITALS:
WHEREAS, Ventas Realty, Limited Partnership, a Delaware limited partnership
("Ventas"), has made a certain loan (the "Loan") to those entities listed on
Schedule I attached hereto, each a Delaware limited liability company (each, a
"Borrower" and collectively, the "Borrowers"), pursuant to that certain Loan
Agreement dated as of November 1, 2002 between Ventas and the Borrowers (as
amended, restated, replaced, supplemented or otherwise modified from time to
time, the "Loan Agreement").
WHEREAS, the Loan is evidenced by a certain Promissory Note dated as of
November 1, 2002 made by the Borrowers to Ventas (as amended, restated,
replaced, supplemented or otherwise modified from time to time, the "Note").
WHEREAS, the Note is secured by those certain liens and security interests
evidenced by (i) the Mortgages as defined in the Loan Agreement (as amended,
restated, replaced, supplemented or otherwise modified from time to time,
collectively, the "Security Instruments"), which encumber the real properties
described therein (collectively, the "Properties") and (ii) the Assignments of
Leases and Rents as defined in the Loan Agreement (as amended, restated,
replaced, supplemented or otherwise modified from time to time, collectively,
the "Assignments of Leases and Rents").
WHEREAS, the Loan Agreement, the Note, the Security Instruments and the
Assignments of Leases and Rents, together with all other documents and
instruments securing or otherwise evidencing the Loan are collectively referred
to as the "Loan Documents."
WHEREAS, the Loan Documents and the Loan were assigned by Ventas to Seller
pursuant to (i) that certain Note Allonge dated as of December 1, 2002 and (ii)
that certain General Assignment, dated as of December 1, 2002.
NOW, THEREFORE, in consideration of the payment of the Purchase Price (as
defined below), the terms and conditions contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby covenant and agree as follows:
1. Purchase of Loan. In consideration of the payment by Purchaser to
Seller by wire transfer to Seller's account on the Closing Date in immediately
available funds the sum set forth on the closing statement set forth on Schedule
II hereof (the "Purchase Price") and satisfaction of all of the terms and
conditions set forth herein, Seller shall sell, assign and transfer on an as-is,
where-is basis, without recourse, representation or warranty, expressed or
implied, except the representations and warranties expressly made by Seller in
favor of Purchaser herein and in the documents executed and delivered to
Purchaser in connection herewith (collectively,
the "Express Warranties"), all of Seller's right, title and interest in and to
the Loan and the Loan Documents. On and prior to the Closing Date, all payments,
penalties or credits received by or for the account of Seller in connection with
the Loan which are due and payable on or prior to the Closing Date shall be the
property of Seller without adjustment to the Purchase Price. All payments,
penalties or credits received by Seller in connection with the Loan after the
Closing Date, except for the receipt by Seller of the Purchase Price from
Purchaser, shall be held by Seller in trust for Purchaser and promptly remitted
to Purchaser in the form received by Seller, except that, with respect to all
checks, drafts or other instruments, Seller shall provide all necessary
endorsements, without representation, warranty or recourse, to enable Purchaser
to negotiate the same.
2. Closing. The closing shall take place at the offices of Seller's
counsel on the Closing Date.
3. Representations and Warranties.
3.1. Each of Seller and Ventas hereby represents and warrants to
Purchaser as follows:
(a) Attached hereto as Exhibit A is a true, correct and
complete listing of all of the Loan Documents as of the Closing Date. The
Loan Documents have not been materially amended except pursuant to that
certain Re-Sizing and First Amendment to Loan Documents dated as of the
date hereof among Seller, Borrowers, Trans Healthcare, Inc. ("THI") and the
Subsidiary Guarantors named therein (the "Re-Sizing Agreement"). To
Seller's knowledge, there currently exists no default or event which, with
the giving of notice or the lapse of time, or both, or at the option of
Seller, would constitute a material default under any of the Loan
Documents, except for (i) the potential failure of the Borrowers to
complete all of the items in that certain Post Closing Obligations
Agreement dated as of November 1, 2002 between the Borrowers, Ventas and
THI (the "Post-Closing Obligations Agreement") by the dates required
thereby (as such dates have been extended pursuant to the Re-Sizing
Agreement) and (ii) the failure of the Borrowers to comply with the
insurance requirements set forth in the Loan Agreement. Seller has not
received any written notice as to any casualty or condemnation occurring
with respect to any of the Properties.
(b) Seller is, and as of the Closing Date will be, the
holder of the Loan and the Loan Documents, free and clear of any lien,
security interest, option or other charge or encumbrance.
(c) As of the Closing Date, the Loan and the related Loan
Documents will not be pledged or hypothecated or subject to a security
interest in favor of any other person.
(d) As of the Closing Date, the outstanding principal
balance of the Note is $49,952,682.70.
3.2. Seller hereby represents and warrants to Purchaser as
follows:
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(a) Seller (i) is a limited liability company duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has all requisite authority to own,
lease and operate its properties and to carry on its business as now being
conducted and (iii) is duly qualified or licensed and otherwise authorized
to transact business in each jurisdiction in which the properties owned,
leased or operated by it or the nature of the business conducted by it
makes such qualification or license necessary.
(b) Seller has the requisite power and authority to
execute and deliver this Agreement, to perform its obligations hereunder
and to consummate the transactions contemplated hereunder. The execution
and delivery of this Agreement by Seller, the performance by it of its
obligations hereunder and the consummation by it of the transactions
contemplated hereunder have been duly and validly authorized. This
Agreement has been duly and validly executed and delivered by it and
constitutes the valid and binding agreement of it, enforceable against it
in accordance with its terms except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally
and (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies.
(c) Neither the negotiation, execution or delivery of this
Agreement by Seller nor the performance by Seller of its obligations
hereunder nor the consummation by such entity of the transactions
contemplated hereunder has or will (i) constitute a breach or violation
under Seller's constituent documents, (ii) constitute a breach, violation
or default (or be an event which, with notice or lapse of time or both,
would constitute a default) under, or result in the termination of, or
result in the creation of any lien upon any of Seller's properties or
assets under, any material note, bond, mortgage, indenture, deed of trust,
license, lease, agreement or other instrument to which Seller is a party or
by which any of its properties or assets are bound or (iii) constitute a
violation of any order, writ, injunction, decree, statute, rule or
regulation of any court or governmental authority applicable to it or any
of its properties or assets, in each case except for such breaches,
violations, defaults, terminations or liens that could not reasonably be
expected to have a material adverse effect on the ability of Seller to
perform its obligations hereunder.
(d) No authorization, consent or approval of, or filing
with, any court or any public body or authority and no consent or approval
of any third party or parties is necessary for the consummation by Seller
of the transactions contemplated by this Agreement.
(e) There are no actions or proceedings against, or
investigations of, the Seller pending, or, to the knowledge of the Seller,
threatened, before any court, arbitrator, administrative agency or other
tribunal (i) asserting the invalidity of this Agreement or (ii) seeking to
prevent the sale of the Loan or the consummation of the transaction
contemplated by this Agreement by the Seller.
(f) Seller is duly authorized to enter into this Agreement
and to sell the Loan and the Loan Documents to Purchaser as contemplated
herein.
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3.3. The Loan is being sold in an "AS IS" condition, on a "WHERE
IS" basis and "WITH ALL FAULTS" as of the Closing Date. Except for the Express
Warranties, Seller makes no warranties or representations of any type, kind,
character or nature, whether expressed or implied, statutory or otherwise (the
warranties provided for in the applicable Uniform Commercial Code being
specifically negated), in fact or in law, or any warranties of merchantability
or fitness for a particular purpose with respect to any term or condition of the
Note, any Security Instrument or any of the other Loan Documents, the Loan, or
with respect to any of the Properties. Without in any way limiting the
generality of the foregoing, except for the Express Warranties, Seller has not
made, does not make or undertake, and expressly disclaims any representation,
warranty or obligation, expressed or implied, as to any characteristic or other
matter affecting or related to any of the Properties. Purchaser hereby waives
any such representation, warranty or obligation, expressed or implied, related
to any such characteristic or matter. Without in any way limiting the generality
of the foregoing, except for the Express Warranties, Seller makes no
representation or warranty, whether expressed or implied, and assumes no
responsibility with respect to (i) the collectability of the Note or the value
of the Loan, (ii) the creditworthiness or financial condition of any Borrower or
the ability of any Borrower to perform its obligations under the Loan Documents,
(iii) the due execution, validity, sufficiency, or the perfection or priority of
any liens or security interests securing or appearing to secure or relating to
the Loan or with respect to any property or collateral covered by such liens,
(iv) the condition of the Loan or the value or income potential of the Loan or
any collateral included in the Loan Documents, (v) rights of offset, deductions,
negotiability, or holder in due course status, the accuracy or completeness of
the matters disclosed, represented or warranted by any party in any of the Loan
Documents, (vi) the performance of the obligations of any party under any of the
Loan Documents, (vii) the adequacy of the collateral described in the Loan
Documents, or (viii) the existence or nonexistence of any default or event of
default under any of the Loan Documents. Seller shall have no responsibility for
the financial condition of any Borrower or the ability of any Borrower to
perform its obligations under the Loan Documents. After the Closing Date,
Purchaser shall have no recourse against Seller arising out of this Agreement,
the Loan, the Loan Documents, any of the Properties or the transactions
contemplated hereby or thereby, except for breaches of the Express Warranties
and obligations under this Agreement to be performed after the Closing Date.
Seller shall not under any circumstances have any duty to repurchase any Loan or
rescind any transaction contemplated by this Agreement.
3.4. Purchaser represents and warrants to Seller as follows:
(a) Purchaser (i) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (ii) has all requisite authority to own, lease and operate
its properties and to carry on its business as now being conducted and
(iii) is duly qualified or licensed and otherwise authorized to transact
business in each jurisdiction in which the properties owned, leased or
operated by it or the nature of the business conducted by it makes such
qualification or license necessary.
(b) Purchaser has the requisite power and authority to
execute and deliver this Agreement, to perform its obligations hereunder
and to consummate the transactions contemplated hereunder. The execution
and delivery of this Agreement by
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Purchaser, the performance by it of its obligations hereunder and the
consummation by it of the transactions contemplated hereunder have been
duly and validly authorized. This Agreement has been duly and validly
executed and delivered by it and constitutes the valid and binding
agreement of it, enforceable against it in accordance with its terms except
(i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws of general application affecting enforcement of
creditors' rights generally and (ii) as limited by laws relating to the
availability of specific performance, injunctive relief or other equitable
remedies.
(c) Neither the negotiation, execution or delivery of this
Agreement by Purchaser nor the performance by Purchaser of its obligations
hereunder nor the consummation by such entity of the transactions
contemplated hereunder has or will (i) constitute a breach or violation
under Purchaser's constituent documents, (ii) constitute a breach,
violation or default (or be an event which, with notice or lapse of time or
both, would constitute a default) under, or result in the termination of,
or result in the creation of any lien upon any of Purchaser's properties or
assets under, any material note, bond, mortgage, indenture, deed of trust,
license, lease, agreement or other instrument to which Purchaser is a party
or by which any of its properties or assets are bound or (iii) constitute a
violation of any order, writ, injunction, decree, statute, rule or
regulation of any court or governmental authority applicable to it or any
of its properties or assets, in each case except for such breaches,
violations, defaults, terminations or liens that could not reasonably be
expected to have a material adverse effect on the ability of Purchaser to
perform its obligations hereunder.
(d) No authorization, consent or approval of, or filing
with, any court or any public body or authority and no consent or approval
of any third party or parties is necessary for the consummation by
Purchaser of the transactions contemplated by this Agreement.
(e) There are no actions or proceedings against, or
investigations of, the Purchaser pending, or, to the knowledge of the
Purchaser, threatened, before any court, arbitrator, administrative agency
or other tribunal (i) asserting the invalidity of this Agreement or (ii)
seeking to prevent the purchase of the Loan or the consummation of the
transaction contemplated by this Agreement by the Purchaser.
(f) Purchaser has such knowledge and experience in
financial and relevant business matters so as to be capable of evaluating
the merits and risks of purchasing the Loan. Purchaser is financially able
to hold the Loan for long-term investment, believes that the nature of the
Loan is consistent with its overall investment program and financial
position, and recognizes that there are substantial risks involved in the
purchase of the Loan. Purchaser is able to bear the economic risk of an
investment in the Loan and is able to afford a complete loss of such
investment. Purchaser, together with its own professional advisors, has
performed its own due diligence with respect to the Loan, has reviewed the
Loan Documents and the additional information supplied by Seller with
respect to such Loan, and requested such additional information and
undertook such additional investigations and evaluations with respect to
the Loan, tax,
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legal and other issues and any other matters, as it has deemed necessary or
appropriate to make an informed investment decision to enter into this
Agreement.
(g) Purchaser has available to it financial resources
sufficient to pay the Purchase Price in cash on the Closing Date.
All representations and warranties made by the parties in this Section
shall survive the closing of this transaction and/or any termination of this
Agreement.
4. Title Insurance Policies. The priority of the lien of the
Security Instruments, as of the date of issuance of the policies, is as insured
by the title proforma policies (the "Title Policies") described on Exhibit B
attached hereto. Purchaser shall bear full responsibility for and shall pay all
costs associated with transferring and obtaining any endorsements to the Title
Policies in connection with this transaction, if available.
5. Payment of the Purchase Price. On or prior to the Closing
Date, Purchaser shall pay the Purchase Price to Seller by wire transfer of
immediately available funds to an account specified by Seller.
6. Closing; Execution of Documents of Transfer. On the Closing
Date, simultaneously with the Purchase Price in accordance with Section 5
hereof:
(a) Seller shall attach to the Note an allonge (the
"Allonge") executed by Seller as follows:
"Pay to the order of General Electric Capital Corporation
without recourse, representation or warranty, except as
specifically provided in that certain Purchase and Sale
Agreement, dated as of December 27th, 2002 by and between
Ventas TRS, LLC and General Electric Capital Corporation."
(b) Seller shall deliver to Purchaser the executed
original Note (or, if not available, lost note affidavit), attached to
which shall be the Allonge.
(c) Seller shall execute and deliver to Purchaser a
general assignment of the Loan Documents in the form attached hereto as
Exhibit D.
(d) Seller shall deliver to Purchaser the original
executed Loan Documents, other than the Loan Documents which were sent for
recording and/or filing which have not been returned by the applicable
recording and/or filing office (collectively, the "Recorded Documents").
Seller shall deliver to Purchaser true and correct copies of the Recorded
Documents. After the Closing Date, Seller agrees to deliver, or cause to be
delivered to Purchaser, the Recorded Documents upon receipt of same from
the applicable recording and/or filing office. Seller reserves the right to
retain copies of the Loan Documents and the Due Diligence Items (as
hereinafter defined).
(e) Seller shall deliver to Purchaser UCC-3 Financing
Statements (or similar instruments) assigning the UCC-1 Financing
Statements related to the Loan to Purchaser as secured party.
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(f) Seller shall deliver to Purchaser (i) notice letters
to be sent by Purchaser to the Cash Management Bank (as defined in the Loan
Agreement) and the Collection Account Bank (as defined in the Loan
Agreement), notifying the Cash Management Bank and the Collection Account
Bank of the assignment of the Loan from Seller to Purchaser (ii) notice
letters to be sent by Purchaser to Borrowers and the property manager,
notifying the Borrowers and the property manager of the transfer of the
Loan and (iii) notice letters to be sent by Purchaser to the Counterparty
(as defined in that certain Collateral Assignment of Interest Rate Cap
dated as on November 1, 2002) and SMBC Capital Markets, Inc. notifying such
parties of the transfer of the Loan.
(g) Seller shall deliver to Purchaser originals (or
copies, if originals are not available) of the Title Policies; surveys;
zoning reports; environmental reports; engineering reports; legal opinions;
insurance policies and/or certificates; UCC searches; organizational
documents, good standing certificates and other customary due diligence
items delivered by the Borrowers in connection with the Loan including all
material documents delivered at the Closing of the Loan by the Borrowers to
Ventas (collectively, the "Due Diligence Items") and copies of all notices
given by Borrowers, Ventas, or Seller since the closing date of the Loan.
(h) Seller shall deliver to Purchaser true and correct
copies of the assignments of the Recorded Documents from Ventas to Seller
and shall execute and deliver to Purchaser assignments of the Recorded
Documents from Seller to Purchaser, which shall be in recordable form in
the applicable jurisdictions.
(i) Seller shall use commercially reasonable efforts to
obtain and deliver an estoppel certificate from Borrowers and an estoppel
certificate from Guarantors in the form agreed to by the parties.
(j) Purchaser is responsible for having itself substituted
as loss payee on, or obtaining any additional or substitute coverage for,
any risk insurance policy related to the Loan in which Seller currently is
listed as a loss payee. Notwithstanding the foregoing, Purchaser shall not
obtain any additional or substitute coverage which is in violation of the
terms and provisions of the Intercreditor Agreement dated as of the date
hereof between Ventas and Purchaser (the "Intercreditor Agreement"). Seller
agrees to reasonably cooperate with Purchaser to effect such substitution.
(k) Purchaser shall deliver to Seller a receipt for all of
the items delivered pursuant to this Section.
(1) Each of Seller and Purchaser shall execute and deliver
to the other a release of claims in the form negotiated by the parties.
(m) Each of Seller and Purchaser shall execute and deliver
to the other a closing statement in the form negotiated by the parties.
7. Escrows; Loan Assumption; Indemnification. Seller holds
escrows at the Cash Management Bank for the payment of real estate taxes,
insurance premiums, capital expenditures, operating expenses and other expenses
in the amounts set forth on Exhibit C.
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These escrow amounts do not include funds held in any account or reserve to be
applied to pay amounts due on the Loan. On the Closing Date, Seller shall
deliver to Purchaser a letter to be delivered to the Cash Management Bank
notifying the Cash Management Bank of the transfer of the Loan and directing the
Cash Management Bank to register all of Seller's right, title and interest in
and to such escrows in the name of the Purchaser. Seller hereby assigns all
rights, responsibilities and obligations with respect to the Loan and the Loan
Documents to Purchaser, and Purchaser hereby expressly assumes all
responsibilities and obligations with respect to the Loan arising on and after
the Closing Date. Purchaser shall indemnify Seller, and its attorneys,
successors and assigns, servicers and sub-servicers, parent, subsidiary and/or
affiliated companies and the shareholders, trustees, officers, directors,
partners, members, employees, agents, representatives and attorneys of all of
the foregoing and their respective heirs, executors, administrators, attorneys,
successors, legal representatives and assigns against, and hold them harmless
from, any loss, liability, claim, damage or expense (including reasonable legal
fees and expenses) suffered or incurred by any such indemnified party to the
extent attributable to or arising out of the duties, responsibilities, or
obligations of the "Lender" under the Loan Documents existing on or arising
after the Closing Date. Each of Purchaser's obligations under this Section shall
survive the closing of this transaction and/or any termination of this
Agreement. Seller shall indemnify Purchaser, and its attorneys, successors and
assigns, servicers and sub-servicers, parent, subsidiary and/or affiliated
companies and the shareholders, trustees, officers, directors, partners,
members, employees, agents, representatives and attorneys of all of the
foregoing and their respective heirs, executors, administrators, attorneys,
successors, legal representatives and assigns against, and hold them harmless
from, any loss, liability, claim, damage or expense (including reasonable legal
fees and expenses) suffered or incurred by any such indemnified party to the
extent attributable to or arising out of the duties, responsibilities, or
obligations of the "Lender" under the Loan Documents existing or arising prior
to the Closing Date. Seller's obligations under this Section shall survive the
closing of this transaction and/or any termination of this Agreement. By its
signature below Ventas hereby agrees to guaranty the indemnification obligations
of Seller under this Section.
8. Status of Loan. Purchaser acknowledges that except for the
Express Warranties (i) there may be certain issues and/or risks with respect to
the Loan or the transactions related thereto that may not be disclosed by, or
apparent in, the Loan Documents, (ii) Purchaser assumes the risk that adverse
matters may not have been revealed by Seller or by Purchaser's inspections and
investigations, (iii) Seller is not obligated to provide any documents or
information to Purchaser except as set forth in Section 6, (iv) certain
documents and information may exist and may not have been provided to Purchaser,
including without limitation, certain documents which pertain to the certain
internal correspondence, electronic mail, internal analysis, internal memoranda,
general regulatory reports required to be filed by Seller and internal
assessments of valuation, and that Seller makes no representations or warranties
that these documents and information do not include significant and material
information which, if made known to Purchaser, could have a material,
significant, direct or indirect impact upon perceived, apparent or actual value
of the Loan, (v) Purchaser has been given the opportunity to inspect the Loan
and Loan Documents to Purchaser's complete satisfaction, and Purchaser is
relying solely on Purchaser's own investigation and not on any information of
any kind provided by Seller or any officer, agent or representative of Seller,
(vi) Purchaser has reviewed all of the financial or other information that
Purchaser believes to be necessary to enable Purchaser to make an independent,
informed judgment with respect to the
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creditworthiness of the Borrowers, the value and extent of the collateral for
the Loan and the desirability of purchasing the Loan and (vii) Seller has no
responsibility or liability for the authenticity, validity, accuracy or
completeness of any financial or other information received by Purchaser
concerning any Borrower or the collateral for the Loan.
9. Payment of Expenses. Each party shall pay its respective
fees, costs, expenses and disbursements relating to the transactions
contemplated hereby. Purchaser shall bear the cost of all recordation fees
and/or taxes associated with purchasing the Loan, including, without limitation,
recording assignments of the Security Instruments, assignment of any financing
statements, and any fees and/or taxes associated with other transfer documents
which the parties determine are to be recorded in connection with the
transactions contemplated hereby.
10. Further Assurances. Purchaser, Seller and Ventas hereby
agree to execute and deliver, both at and after the Closing Date, such
instruments and take such further actions as another party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement. Without limiting the generality of the foregoing,
Seller agrees that following the Closing Date, Seller shall execute any notice
or instrument of transfer, assignment or conveyance reasonably requested by the
Purchaser (which request is accompanied by the form of instrument sufficient to
satisfy Purchaser's request) to more fully confirm or effect the transfer of the
Loan. Purchaser shall pay any costs or expenses incurred by Seller in connection
with this Section, other than Seller's attorneys' fees.
11. Notices. Any notice required or permitted by or in
connection with the Agreement, without implying the obligation to provide any
such notice, shall be in writing at the appropriate addresses set forth below or
to such other addresses as may be hereafter specified by written notice by
Seller or Purchaser. Any such notice shall be deemed to be effective one (1) day
after dispatch if sent by overnight delivery, express mail or Federal Express or
three (3) days after mailing if sent by first class mail with postage prepaid.
All notices shall be considered to be effective upon receipt if accomplished by
hand delivery or by facsimile (with answer back confirmation).
If to Seller:
Ventas TRS, LLC
c/o Ventas, Inc.
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Facsimile No. (000)-000-0000
With a copy to:
Dechert
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Facsimile No. (000) 000-0000
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If to the Purchaser:
General Electric Capital Corporation
Loan No. 70004027
0 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxx 00000
Attention: Manager, Portfolio Management Group
Facsimile No. (000) 000-0000
With a copy to:
General Electric Capital Corporation
Loan No. 70004027
000 Xxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxxxxx, Vice President
and Chief Counsel, Senior Living Group
Facsimile No. (000) 000-0000
With a copy to:
General Electric Capital Corporation
Loan No. 70004027
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx XxXxxx, Senior Vice President
Facsimile No. (000) 000-0000
With a copy to:
Goldberg, Kohn, Bell, Black, Xxxxxxxxxx & Moritz, Ltd.
00 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
Facsimile No. (000) 000-0000
12. Choice of Law. The laws of the State of New York shall
govern the rights and obligations of the parties to this Agreement, and the
interpretation and construction and enforceability thereof, and any and all
issues relating to the transactions contemplated herein.
13. Broker Fees. Purchaser and Seller each represent and warrant
to the other that it has dealt with no broker, investment broker or agent in
connection with the purchase of the Loan and that no commission, finders fees or
other such payments are due any broker. Purchaser and Seller each hereby
indemnifies and agrees to hold the other harmless from and against any and all
loss, liability, cost or expense (including without limitation, court costs and
reasonable attorneys' fees and expenses) that the one may suffer or sustain
should the foregoing representations and warranties of the other prove
inaccurate. The foregoing indemnity shall survive the closing of this
transaction and/or any termination of this Agreement.
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14. Assignment. This Agreement may not be assigned by Purchaser
without the prior written consent of Seller, which consent may be granted or
withheld in Seller's sole and absolute discretion and any such assignment by
Purchaser without Seller's consent shall be null and void and of no effect. This
Agreement may be freely assigned by Seller without Purchaser's consent in
connection with a transfer of the Loan prior to the Closing Date.
15. Final Agreement. This Agreement (including the exhibits
hereto) constitutes the final and entire agreement and understanding of the
parties with respect to the purchase and sale of the Loan, and any terms and
conditions not set forth in this Agreement are not a part of this Agreement and
the understanding of the parties hereto may not be contradicted by evidence of
prior, contemporaneous or subsequent oral agreements of the parties. No
variation, modification, or changes hereof shall be binding on either party
hereto unless set forth in a document executed by both parties.
16. Severability. If any paragraph, section, sentence, clause or
phrase contained in this Agreement shall become illegal, null or void or against
public policy, for any reason, or shall be 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 to the extent that the intent of the parties
hereto can be carried out absent such provision.
17. Counterparts. This Agreement may be executed in separate
counterparts, each of which shall be an enforceable document, but all of which
together shall constitute one and the same document.
18. Time of the Essence. Time is of the essence in the execution
and performance of this Agreement.
19. Rule of Construction. The parties acknowledge that each
party and its counsel have reviewed this Agreement and the parties hereby agree
that the normal rule of construction to the effect that any ambiguities are to
be resolved against the drafting party shall not be employed in the
interpretation of this Agreement or any amendments or exhibits hereto.
[Signatures begin on following page]
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IN WITNESS WHEREOF, the parties have executed this Purchase and
Sale Agreement as of the date first written above.
SELLER:
VENTAS TRS, LLC,
a Delaware limited liability company
By: /s/ T. Xxxxxxx Xxxxx
----------------------------
Name: T. Xxxxxxx Xxxxx
Title: Executive Vice President and General
Counsel
Solely with respect to the representations
and warranties contained in Section 3.1, the
guaranty of the indemnification of Seller
contained in Section 7 and the further
assurances provisions contained in Section 10
VENTAS REALTY, LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Ventas, Inc.
a Delaware corporation,
its sole general partner
By: /s/ T. Xxxxxxx Xxxxx
----------------------------
T. Xxxxxxx Xxxxx
Executive Vice President/General
Counsel
PURCHASER:
GENERAL ELECTRIC CAPITAL CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: VP
