AGREEMENT FOR SALE OF REAL ESTATE
AND MASTER LEASE AMENDMENTS
BETWEEN
VENTAS REALTY, LIMITED PARTNERSHIP
AND
KINDRED HEALTHCARE, INC.
AND
KINDRED HEALTHCARE OPERATING, INC.
November 5, 2003
AGREEMENT FOR SALE OF REAL ESTATE
AND MASTER LEASE AMENDMENTS
---------------------------
This AGREEMENT FOR SALE OF REAL ESTATE AND MASTER LEASE AMENDMENTS
("Agreement") is made on November 5, 2003 between VENTAS REALTY, LIMITED
PARTNERSHIP, a Delaware limited partnership ("Seller") and KINDRED HEALTHCARE
OPERATING, INC., a Delaware corporation ("Kindred") and KINDRED HEALTHCARE,
INC., a Delaware corporation (together with Kindred, collectively, "Purchaser").
1. Purchase and Sale; Master Lease Amendments. Seller agrees to sell, or,
in the case of Westridge (as defined in Section 5(c) below), to cause Ventas
Finance I, LLC to sell to Purchaser, and Purchaser agrees to purchase from
Seller (or, in the case of Westridge, Ventas Finance I, LLC), the Property, as
hereinafter defined, for the Purchase Price, as hereinafter defined, and subject
to the terms and conditions set forth in this Agreement, and Seller and
Purchaser further agree to amend (and Seller agrees to cause Ventas Finance I,
LLC to amend in the case of the CMBS Master Lease (as defined in Section 5(c)
below)) those certain master leases (herein, the "Master Leases") identified in
the Master Lease Amendments, as hereinafter defined, on the terms set forth in
the Master Lease Amendments, subject to the terms and conditions set forth in
this Agreement.
2. Purchase Price.
(a) The purchase price (the "Purchase Price") for the Property shall be
Seventy Nine Million and No/100 Dollars ($79,000,000.00).
(b) Each individual property listed on Exhibit A shall be allocated such
portion of the Purchase Price as is set forth opposite the common name of such
property on Exhibit B.
3. Property. "Property" means all of Seller's (or, in the case of
Westridge, Ventas Finance I, LLC's) right, title and interest, if any, in (a)
the land described on Exhibit A (the "Land"); (b) all easements and other
related rights appurtenant to the Land (collectively, "Appurtenances"); and (c)
all of the buildings, structures, fixtures and other improvements located on the
Land (collectively, "Improvements").
4. Xxxxxxx Money Deposit. Contemporaneously with the execution and delivery
of this Agreement by Purchaser and Seller, Purchaser shall deposit One Million
Five Hundred Thousand and No/100 Dollars ($1,500,000.00) (the "Xxxxxxx Money")
with Seller by federally insured wire transfer pursuant to wire transfer
instructions provided to Purchaser by Seller. The Xxxxxxx Money may be
commingled with other funds of Seller, and Seller shall not be obligated to hold
the Xxxxxxx Money in an interest bearing account. The Xxxxxxx Money shall be
non-refundable for any reason other than as expressly provided in, and subject
to the terms of, Section 12(b)(i)(x) below.
5. Certain Covenants and Conditions.
(a) [Intentionally Omitted]
(b) Lender Approval. It shall be a condition precedent to Purchaser's
obligation to proceed to Closing hereunder that Purchaser shall have obtained
the approval of its lenders (the "Lenders", and such approval shall be called
"Lender Approval") to the transactions contemplated by this Agreement,
including, without limitation, the Master Lease Amendments (as hereinafter
defined) and the Termination Agreements (as hereinafter defined) (collectively,
the "Transactions"). If, as of November 30, 2003 (the "Approval Date"),
Purchaser has not received Lender Approval, Purchaser may terminate this
Agreement by delivery of written notice to Seller not later than 5:00 p.m.
(Chicago time) on the Approval Date, which notice shall state the grounds of
such termination. Upon timely delivery of such notice of termination by
Purchaser, this Agreement shall immediately terminate, the Xxxxxxx Money shall
be retained by Seller, Purchaser shall, simultaneously with delivery of such
notice of termination, pay to Seller an additional Three Million Five Hundred
Thousand and No/100 Dollars ($3,500,000.00) (the "Break-Up Fee"), and neither
Purchaser nor Seller shall have any further obligations or liabilities hereunder
except for those obligations and liabilities that expressly survive termination.
In the event that Purchaser does not deliver to Seller a timely notice of
termination pursuant to the terms of this Section 5(b), Purchaser shall be
deemed to have obtained Lender Approval and to have forever waived the condition
precedent described in this Section 5(b), and Purchaser shall be obligated to
proceed to Closing hereunder. Purchaser covenants and agrees to notify Seller in
writing immediately following its receipt of Lender Approval (the "Lender
Approval Notice").
(c) Westridge Approval. It shall be a condition precedent to Seller's
obligation to cause to be conveyed to Kindred (or its affiliate) that property
identified on Exhibit B hereof as "Westridge Healthcare Center" ("Westridge"),
which property is subject to the terms of the CMBS Master Lease described
hereinafter and certain financing documents associated therewith (the "CMBS Loan
Documents"), that, on or prior to Closing, Seller and Ventas Finance I, LLC, an
affiliate of Seller and the Lessor under that certain Master Lease dated
December 12, 2001 by and between Purchaser and Ventas Finance I, LLC (the "CMBS
Master Lease"), shall have obtained the necessary consents, approvals, and
releases (collectively, the "Westridge Releases") to release the liens under the
CMBS Loan Documents and convey Westridge to Purchaser. If, as of the Closing
Date, Seller and Ventas Finance I, LLC shall not have obtained the Westridge
Releases, then Purchaser and Seller shall nevertheless proceed to Closing, but
(i) at Closing, Seller and Ventas Finance I, LLC shall not convey Westridge to
Purchaser, (ii) at Closing, Seller, Ventas Finance I, LLC and Purchaser shall
not execute and deliver the Termination Agreement, the MOL Termination, the
Master Lease Amendment or the Releases (as hereinafter defined) with respect to
Westridge, (iii) at Closing, the Purchase Price shall be reduced by the amount
allocated to Westridge as set forth on Exhibit B (the "Westridge Purchase
Price"), and (iv) following Closing, this Agreement shall remain in full force
and effect with respect to Westridge and thereafter, upon not less than five (5)
business days' prior written notice from Seller to Purchaser, Seller (and Ventas
Finance I, LLC) and Purchaser shall consummate the purchase and sale of
Westridge on the date specified in such notice, which date shall be no later
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than December 29, 2003 (the "Westridge Closing"); provided, however, that, if
Seller has not delivered such notice to Purchaser as of December 22, 2003, then
either Seller or Purchaser may terminate this Agreement with respect to
Westridge by written notice to the other party, upon delivery of which notice,
this Agreement shall terminate with respect to Westridge and neither party shall
have any further obligations or liabilities to the other hereunder with respect
to Westridge, except for those obligations and liabilities with respect to
Westridge that expressly survive termination. At the Westridge Closing, if
applicable, Purchaser shall pay to, or as directed by, Seller, the Westridge
Purchase Price, and Purchaser and Seller shall execute, or cause to be executed,
and deliver, or cause to be delivered, all of the documents and other items that
would have been required to be executed and/or delivered at Closing had the
Westridge Releases been received prior to the Closing Date.
6. Certain Representations and Warranties by Seller. Seller hereby
represents and warrants to Purchaser that (a) this Agreement has been duly
authorized, executed and delivered by Seller and is the legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with its terms,
(b) the execution and delivery of this Agreement by Seller does not violate any
provision of any agreement or judicial order to which Seller is a party or to
which Seller or, to the best of Seller's knowledge, the Property is subject, (c)
all the documents to be delivered by Seller at Closing will, at Closing, be duly
authorized, executed and delivered by Seller (and/or, if applicable, its
affiliates), will be the legal, valid and binding obligations of Seller (and/or,
if applicable, its affiliates), and be enforceable against Seller (and/or, if
applicable, its affiliates) in accordance with their respective terms, and the
execution and delivery thereof will not violate any provision of any agreement
or judicial order to which Seller (and/or, if applicable, its affiliates) is a
party or, to the best of Seller's knowledge, to which the Property is subject,
(d) Seller has not entered into any agreement to sell all or any portion of the
Property (other than to Purchaser, in certain limited circumstances as described
in the Master Leases), (e) to the best of Seller's knowledge, and except as
otherwise expressly provided herein, Seller is not required to obtain the
consent of any ground lessor, lender or other person or entity to the
Transactions hereby contemplated, (f) within the past 125 days, no lienable
repair, alteration, improvement, work, brokerage or service of any kind has been
performed or materials supplied for or to the Property at Seller's (or, in the
case of Westridge, Ventas Finance I, LLC's) direction, except for such lienable
repairs, alterations improvements, work, brokerage or services as have been paid
for by Seller or Ventas Finance I, LLC or for which, by the terms of the Master
Leases, Purchaser is obligated to reimburse Seller or Ventas Finance I, LLC, and
(g) there exists no judgment against Seller that is a lien against the Property
(other than any such judgment as to which by the terms of the Master Leases or
the 1998 Plan of Reorganization referenced therein or documents executed
pursuant to such plan, Seller or Ventas Finance I, LLC is entitled to be
indemnified by Purchaser); provided, however, that, relative to, and in
limitation of, the foregoing representations and warranties, Purchaser
acknowledges that (i) the Lender Approval is required, and that, as of the date
hereof, the Lender Approval has not been obtained and (ii) with respect to the
conveyance of Westridge, the Westridge Releases are required, and that, as of
the date hereof, the Westridge Releases have not been obtained. All
representations and warranties made by Seller in this Section 6 shall be true
and correct on the date made and their continued validity as to any material
fact as of the Closing Date shall be a condition precedent to Purchaser's
obligation to close the Transactions hereby contemplated, and at the Closing,
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Seller shall execute and deliver to Purchaser a certification that its
representations and warranties contained in this Section 6 remain true and
correct in all material respects as of the Closing Date, except insofar as any
such representation or warranty is no longer true or correct due to the acts or
omissions of Purchaser or to the obtaining, after the date hereof, of knowledge
not known to Seller as of the date hereof.
7. Certain Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants to Seller as follows:
(a) (i) This Agreement has been duly authorized, executed and delivered by
Purchaser and is the legal, valid and binding obligation of Purchaser,
enforceable against Purchaser in accordance with its terms, (ii) the execution
and delivery of this Agreement by Purchaser does not violate any provision of
any agreement or judicial order to which Purchaser is a party or to which
Purchaser or, to the best of Purchaser's knowledge, the Property is subject,
(iii) all the documents to be delivered by Purchaser at closing will, at
closing, be duly authorized, executed and delivered by Purchaser (and/or, if
applicable, its affiliates), will be the legal, valid and binding obligations of
Purchaser (and/or, if applicable, its affiliates), and be enforceable against
Purchaser (and/or, if applicable, its affiliates) in accordance with their
respective terms, and the execution and delivery thereof will not violate any
provision of any agreement or judicial order to which Purchaser (and/or, if
applicable, its affiliates) is a party or, to the best of Purchaser's knowledge,
to which the Property is subject, and (iv) to the best of Purchaser's knowledge,
and except as otherwise expressly provided herein, Purchaser is not required to
obtain the consent of any ground lessor, lender or other person or entity to the
Transactions hereby contemplated; provided, however, that, relative to, and in
limitation of, the foregoing representations and warranties, Seller acknowledges
that the Lender Approval is required, and that, as of the date hereof, the
Lender Approval has not been obtained.
(b) [Upon Closing of the Transactions, Purchaser intends to hold the
healthcare facilities comprising the Property for the purpose of disposing of
them, and only until they are disposed of, in one or more sale transactions, in
a manner consistent with that certain letter, dated as of October 29, 2003, sent
on behalf of Purchaser to Xxxxxxx X. Xxxxx, Esq. of the Federal Trade Commission
relative to the Transactions, which letter is attached hereto as Exhibit N.
During the interim period prior to completion of such disposition(s), Purchaser
will (i) continue to operate such healthcare facilities and/or (ii) lease such
healthcare facilities to a third party that will operate them.]
All representations and warranties made by Purchaser in this Section 7
shall be true and correct on the date made and their continued validity as to
any material fact as of the Closing Date shall be a condition precedent to
Seller's obligation to close the Transactions hereby contemplated, and at the
Closing Purchaser shall execute and deliver to Seller a certification that its
representations and warranties contained in this Section 7 remain true and
correct in all material respects as of the Closing Date, except insofar as any
such representation or warranty is no longer true or correct due to the acts or
omissions of Seller or to the obtaining, after the date hereof, of knowledge not
known to Purchaser as of the date hereof.
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8. [Intentionally Omitted].
9. Closing. Subject to the terms of Section 5(c) with respect to Westridge,
the closing of the sale of the Property and the amendment of the Master Leases
pursuant to the Master Lease Amendments ("Closing") shall take place at 10:00
a.m. (New York time) at the office of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx at Xxx
Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx or at another place mutually agreed upon by
the parties, on a date ("Closing Date") not later than December 10, 2003;
provided, however, that, notwithstanding the foregoing or anything to the
contrary contained in this Agreement, and subject to the terms of Section 5(c)
with respect to Westridge, in the event the Closing has not occurred by December
10, 2003, Seller or Purchaser may, at its option, provided and on the condition
that the failure of such Closing to occur by such date is not due to a default
by it in the performance of its obligations under this Agreement, elect to
terminate this Agreement by delivery of written notice of termination to the
other party, upon which delivery, this Agreement shall immediately terminate,
the Xxxxxxx Money shall be retained by Seller, Purchaser shall pay to Seller,
not later than December 11, 2003, the Break-Up Fee, and neither Purchaser nor
Seller shall have any further obligations or liabilities hereunder except for
those obligations and liabilities that expressly survive termination; provided,
however, that, if the failure of the Closing to occur by December 10, 2003 is
due to a default by Seller in the performance of its obligations under this
Agreement, the Xxxxxxx Money shall be returned to Purchaser and Purchaser shall
have no liability to Seller for the Break-Up Fee. Notwithstanding the foregoing,
the parties need not attend the Closing in person and shall have the right to
close the transaction contemplated by this Agreement pursuant to written closing
escrow instructions, so long as such instructions are consistent with the terms
hereof.
(a) Seller Closing Documents. At the Closing, Seller shall, subject to the
terms of Section 5(c), execute and deliver, or cause to be executed and
delivered, to Purchaser the following documents:
(i) With respect to each of the properties described on Exhibit A that
is located in Massachusetts, a deed in the form of Exhibit C (collectively,
the "Massachusetts Deeds") in favor of Kindred or, at the written request
of Purchaser, in favor of an affiliate of Kindred;
(ii) With respect to the property described on Exhibit A that is
located in Michigan, a deed in the form of Exhibit D (the "Michigan Deed")
in favor of Kindred or, at the written request of Purchaser, in favor of an
affiliate of Kindred;
(iii) With respect to the property described on Exhibit A that is
located in Minnesota, a deed in the form of Exhibit E (the "Minnesota
Deed") in favor of Kindred or, at the written request of Purchaser, in
favor of an affiliate of Kindred;
(iv) With respect to each of the properties described on Exhibit A
that is located in Connecticut, a deed in the form of Exhibit F
(collectively, the "Connecticut Deeds") in favor of Kindred or, at the
written request of Purchaser, in favor of an affiliate of Kindred;
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(v) With respect to the property described on Exhibit A that is
located in Kentucky, a deed in the form of Exhibit G (the "Kentucky Deed")
in favor of Kindred or, at the written request of Purchaser, in favor of an
affiliate of Kindred;
(vi) With respect to the property described on Exhibit A that is
located in Wisconsin, a deed in the form of Exhibit H (the "Wisconsin
Deed", and together with the Massachusetts Deeds, the Michigan Deed, the
Minnesota Deed, the Connecticut Deeds, and the Kentucky Deed, collectively,
the "Deeds") in favor of Kindred or, at the written request of Purchaser,
in favor of an affiliate of Kindred;
(vii) A certification of non-foreign status in the form of Exhibit I;
(viii) Partial Lease Termination Agreements in the form of Exhibits
X-0, X-0, X-0, xxx X-0 (collectively, the "Termination Agreements"),
executed in counterpart by Seller, or, in the case of the Termination
Agreement regarding the CMBS Master Lease, by Ventas Finance I, LLC;
(ix) A Termination of Memorandum of Lease with respect to each of the
properties listed on Exhibit A, in substantially the form of Exhibit K
(collectively, the "MOL Terminations"), executed in counterpart by Seller
or, in the case of the MOL Termination in respect of Westridge, by Ventas
Finance I, LLC;
(x) Amendments to each of the Master Leases in the form of Xxxxxxxx
X-0, X-0, X-0, X-0, xxx X-0 (collectively, the "Master Lease Amendments"),
executed in counterpart by Seller, or in the case of the Master Lease
Amendment of the CMBS Master Lease, by Ventas Finance I, LLC;
(xi) With respect to each of the properties described on Exhibit A, a
Xxxx of Sale and Assignment in the form of Exhibit M, in favor of Kindred,
or, at the written request of Purchaser, in favor of one or more affiliates
of Kindred and, if and to the extent Seller or Ventas Finance I, LLC owns
and possesses any of the "Personal Property" referenced therein, Seller or
Ventas Finance I, LLC shall deliver (or cause the delivery of) the same to
Kindred or such affiliate(s);
(xii) A legal opinion executed by Seller's internal counsel, in form
and substance reasonably acceptable to Purchaser, opining that this
Agreement and the documents executed and delivered by Seller and, if
applicable, its affiliates pursuant to the terms of this Agreement have
been duly authorized, executed and delivered by, and are legal, valid and
binding obligations of, such signatory(ies); and
(xiii) (x) Duly executed (as applicable) releases of any mortgages,
financing statements and other instruments recorded with respect to the
Property and that secure borrowed indebtedness of Seller or Ventas Finance
I, LLC under (a) that certain Second Amended and Restated Credit, Security
and Guaranty Agreement, dated as of April 17, 2002, by and among Seller,
Bank of America, N.A., as Administrative Agent, and certain lenders and
guarantors listed therein or (b) that certain CMBS Loan Agreement, dated as
of December 12, 2001, by and between Ventas Finance I, LLC and Xxxxxxx
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Xxxxx Mortgage Lending, Inc. (collectively, the "Releases") or (y) evidence
reasonably satisfactory to Purchaser that, upon payment of the Purchase
Price in the manner directed by Seller, the Releases shall be delivered by
the lender thereunder or an escrowee on its behalf to Purchaser.
(b) Purchaser Closing Documents. At the Closing, Purchaser shall, subject
to the terms of Section 5(c), execute and deliver, or cause to be executed and
delivered, to Seller the following documents:
(i) the Termination Agreements, executed in counterpart by Purchaser
and consented to, in counterpart, by each of Purchaser's Lenders;
(ii) the MOL Terminations, executed in counterpart by Purchaser;
(iii) the Master Lease Amendments, executed in counterpart by
Purchaser and consented to, in counterpart, by each of Purchaser's Lenders;
and
(iv) a legal opinion executed by Purchaser's internal counsel, in form
and substance reasonably acceptable to Seller, opining that this Agreement
and the documents executed and delivered by Purchaser and, if applicable,
its affiliates pursuant to the terms of this Agreement have been duly
authorized, executed and delivered by, and are legal, valid and binding
obligations of, such signatory(ies).
(c) Amounts to be Paid at Closing. At the Closing, Purchaser shall pay to,
or as directed by, Seller, by federally insured wire transfer, the total amount
of the Purchase Price minus the amount of the Xxxxxxx Money, which Xxxxxxx Money
shall be credited against the Purchase Price and retained by Seller. In addition
to the Purchase Price, and as a condition to Seller's obligation to close,
Purchaser shall pay to, or as directed by, Seller the lease termination fees
required to be paid by Purchaser pursuant to the terms of the Termination
Agreements.
(d) Further Assurances. Seller and Purchaser shall (and, in the case of
Westridge, Seller shall cause Ventas Finance I, LLC to), at the Closing, and
from time to time thereafter, upon request, execute such additional documents as
are reasonably necessary in order to convey, assign and transfer the Property
pursuant to this Agreement and otherwise complete the Transactions contemplated
by this Agreement, provided that such documents are consistent with the terms of
this Agreement, and do not increase Seller's (or Ventas Finance I, LLC's) or
Purchaser's obligations hereunder or subject Seller (or Ventas Finance I, LLC)
or Purchaser to additional liability not otherwise contemplated by this
Agreement. Additionally, if this Agreement is terminated, either party may
request from time to time thereafter confirmation of such termination from the
other party, upon which request, the non-requesting party shall promptly confirm
to the requesting party in writing (by a recordable instrument if requested by
the requesting party) that this Agreement has been terminated.
(e) Cooperation. Purchaser has informed Seller that, after the Closing,
Purchaser intends to attempt to sell or lease the Property to one or more third
parties (any such third party, a "Subsequent Purchaser/Lessee"). Seller agrees
(and, in the case of Westridge, Seller agrees to cause Ventas Finance I, LLC) to
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provide reasonable cooperation to Purchaser with respect to the foregoing
transactions, provided and on the conditions that any such cooperation shall (i)
be at no cost or expense to Seller or Ventas Finance I, LLC, (ii) not expand or
increase Seller's (or Ventas Finance I, LLC's) covenants, representations,
warranties, indemnities, obligations, duties or liabilities under this Agreement
or any document delivered hereunder, (iii) not subject Seller or Ventas Finance
I, LLC to additional liability, covenants, representations, warranties,
indemnities, obligations or duties not otherwise contemplated hereby, (iv) not
require Seller or Ventas Finance I, LLC to make any representation, warranty,
covenant, agreement or indemnity that is inconsistent with, or broader in scope
than, the representations, warranties, covenants, agreements and indemnities
contained in this Agreement or the exhibits hereto, (v) not delay the Closing
Date, and (vi) be subject to the understanding and agreement of Purchaser, which
understanding and agreement is hereby acknowledged by Purchaser, that Seller's
and Ventas Finance I, LLC's cooperation (x) shall not prejudice any rights
Seller, Ventas Finance I, LLC, or Purchaser may have under the Master Leases,
including, without limitation, in the case of Seller and Ventas Finance I, LLC,
any rights Seller or Ventas Finance I, LLC may have under the Master Leases to
disapprove of, or take other steps to oppose or prevent the consummation of, any
sublease transaction(s) that Purchaser may desire to enter into with any of the
Subsequent Purchaser/Lessees, and (y) shall not be used by Purchaser as evidence
in any dispute between Seller or Ventas Finance I, LLC and Purchaser involving
any proposed sublease transaction(s) with any of the Subsequent
Purchaser/Lessees. Any instrument or document that Seller or Ventas Finance I,
LLC may be asked to execute and/or deliver under this Section 9(e) shall be in
such form as Seller and Ventas Finance I, LLC shall deem appropriate, in its
sole and absolute discretion.
10. Prorations and Adjustments.
Purchaser and Seller hereby acknowledge and agree that there shall be no
prorations or adjustments at Closing to the Purchase Price or to any amounts
required to be paid at the Closing pursuant to the Termination Agreements.
11. Closing Costs.
(a) Seller shall be responsible for the payment of the fees and costs of
Seller's counsel and investment advisors representing it in connection with the
Transactions.
(b) Purchaser shall be responsible for the payment of (i) the fees and
costs of Purchaser's counsel and investment advisors representing it in
connection with the Transactions, and (ii) subject to subsection (a) above, all
recording fees, transfer taxes, intangible taxes, documentary stamp taxes and
title insurance costs, and all other fees, costs and expenses, incurred by
either Seller (or Ventas Finance I, LLC) or Purchaser in connection with the
Transactions. At Seller's request, Purchaser shall pay at Closing all of the
fees, taxes, costs and expenses referenced in Section 11(b)(ii) hereof.
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12. Remedies.
(a) Purchaser Default.
(i) If Purchaser fails to perform any of its obligations under this
Agreement which are required to be performed at or prior to the Closing
(including, without limitation, the payment of the balance of the Purchase
Price and the payment of any amounts required to be paid by the terms of
the Termination Agreements) ("Purchaser Default"), then Seller shall have
the right, as its sole and exclusive remedy for such failure, to terminate
this Agreement by delivering written notice thereof to Purchaser, in which
event, the Xxxxxxx Money shall be retained by, and the Break-Up Fee shall
be immediately paid by Purchaser to, Seller as liquidated damages. SELLER
AND PURCHASER AGREE THAT SELLER'S ACTUAL DAMAGES IN THE EVENT OF A
PURCHASER DEFAULT ARE UNCERTAIN AND DIFFICULT TO ASCERTAIN, AND THAT THE
XXXXXXX MONEY, TOGETHER WITH THE BREAK-UP FEE, IS A REASONABLE ESTIMATE OF
SELLER'S DAMAGES.
SELLER'S INITIALS: PURCHASER'S INITIALS:
---------- ----------
(ii) Notwithstanding the foregoing, in the event the Closing hereunder
occurs and Purchaser fails to perform an obligation under this Agreement
(arising either before or after the Closing) and such obligation expressly
survives the Closing pursuant to the terms hereof, then Seller shall have
all rights and remedies at law, in equity or under this Agreement,
including, without limitation, the right to xxx for damages (excluding,
however, special, punitive or consequential damages).
(b) Seller Default.
(i) If Seller fails to perform any of its obligations under this
Agreement which are required to be performed at or prior to the Closing
(including, without limitation, the delivery of the Deeds), then Purchaser
shall have the right, as its sole and exclusive remedy for such failure, to
either (x) terminate this Agreement by delivering written notice thereof to
Seller, in which event the Xxxxxxx Money shall be promptly returned to
Purchaser and neither party shall have any further obligations or
liabilities hereunder except for those liabilities and obligations that
expressly survive termination, or (y) specifically enforce the terms of
this Agreement.
(ii) Notwithstanding the foregoing, in the event the Closing hereunder
occurs and Seller fails to perform an obligation under this Agreement
(arising either before or after the Closing) and such obligation expressly
survives the Closing pursuant to the terms hereof, then Purchaser shall
have all rights and remedies available at law, in equity or under this
Agreement, including, without limitation, the right to xxx for damages
(excluding, however, special, punitive or consequential damages).
(c) Collection Costs. If any legal action, arbitration or other similar
proceeding is commenced to enforce or interpret any provision of this Agreement,
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the prevailing party shall be entitled to an award of its attorneys' fees and
expenses. The phrase "prevailing party" shall include a party who receives
substantially the relief desired whether by dismissal, summary judgment,
judgment or otherwise. In the event that Seller is entitled to an award of its
attorneys' fees and expenses pursuant to the terms of this Section 12(c), such
award shall be in addition to the liquidated damages to which Seller may be
entitled pursuant to the terms of Section 12(a) above.
(d) Survival.
(i) Closing. None of the terms and conditions of this Agreement shall
survive the Closing, except Sections 2(b), 4, 6, 7, 9(d), 9(e), 10, 11, 12,
13, 14, 15 and 16.
(ii) Termination. None of the terms and conditions of this Agreement
shall survive the termination of this Agreement, except Sections 4, the
third sentence of 5(b), 6, 7, 9(d), 9(e), 11, 12, 13, 15(b) and 16.
(e) Relation to Master Leases. Without limitation of Section 15 below,
Seller and Purchaser agree that the remedies described in this Agreement,
including, without limitation, the liquidated damages remedies referenced above,
(i) constitute remedies of the parties under this Agreement only in their
respective capacities as Seller and Purchaser hereunder, (ii) shall not
constitute, or be deemed to constitute, remedies under any of the Master Leases,
(iii) shall not preclude any party to any of the Master Leases from exercising
any right or remedy available to it under any of the Master Leases (even if
remedies are enforced or collected upon under this Agreement), and (iv) shall
not limit the damage remedies or other rights or remedies of any party to any of
the Master Leases under any of the Master Leases (even if remedies are enforced
or collected upon under this Agreement) and that the determination by Seller or
Purchaser of whether or not, based upon the occurrence of certain events or the
existence of certain circumstances, a default by the other party has occurred
under this Agreement shall be made independently of, and have no bearing or
impact upon, the determination by a party to one of the Master Leases of whether
or not, based upon the same events or circumstances, a default by another party
to such Master Lease has occurred under such Master Lease.
13. Brokers. Each of Seller and Purchaser represents to the other that it
has not engaged or dealt with any broker, finder or investment advisor in
connection with the sale of the Property or the other Transactions contemplated
by this Agreement other than investment advisor(s) retained by it and covenants
to pay any fees or other amounts owing to its investment advisor(s) on account
of this Agreement or the Transactions. Seller and Purchaser shall indemnify,
hold harmless and defend the other, its affiliates, and its and their officers,
directors, affiliates, agents and employees, against and from all claims,
demands, causes of action, judgments, and liabilities (including, without
limitation, reasonable attorneys' fees and costs) which arise from a breach of
such parties' respective representations and covenants set forth in this Section
13.
14. Casualty and Condemnation. If, prior to Closing, any of the
Improvements are damaged or destroyed, or a condemnation proceeding is commenced
against any part of the Property ("Casualty or Condemnation"), then at the
Closing, Seller shall pay (or, in the case of Westridge, cause Ventas Finance I,
10
LLC to pay) to Purchaser all insurance proceeds and condemnation awards, if any,
paid to Seller (or, in the case of Westridge, Ventas Finance I, LLC) in
connection with such Casualty or Condemnation which have not been used to
restore the Property, and Seller (or, in the case of Westridge, Ventas Finance
I, LLC) shall assign to Purchaser all of its right, title and interest in any
insurance proceeds or condemnation awards to be paid to it in connection with
the Casualty or Condemnation.
15. Certain Warranties; Disclaimer and Release.
(a) Notwithstanding anything to the contrary contained in this Section 15,
the purchase, sale and conveyance of the Property shall be made with the limited
warranties to Purchaser contained in the Deeds.
(b) Disclaimer. Purchaser agrees that Purchaser is purchasing the Property
in "AS IS", "WHERE IS", "WITH ALL FAULTS" condition, and, subject to Section 6
above and to Section 15(a) above, without any warranties, representations or
guarantees, either express or implied, of any kind, nature, or type whatsoever
from, or on behalf of, Seller. Without in any way limiting the generality of the
immediately preceding sentence, Purchaser further acknowledges and agrees that,
in entering into this Agreement and closing the Transactions hereunder, subject
to Section 6 above and to Section 15(a) above:
(i) Each of Seller and its affiliates, and its and their officers,
directors, employees and agents, expressly disclaims, has not made, will
not, and does not, make, any warranties or representations, express or
implied, with respect to the Property or any portion thereof, the physical
condition or repair or disrepair thereof, the value, profitability or
marketability thereof or the title thereto, or of any of the appurtenances,
facilities or equipment thereon;
(ii) Each of Seller and its affiliates, and its and their officers,
directors, employees and agents, expressly disclaims, has not made, will
not, and does not, make, any warranties, express or implied, of
merchantability, habitability or fitness for a particular use;
(iii) As the tenant at the Property, Purchaser has had complete and
sole possession of the Property since, at the latest, May 1, 1998, and has
accordingly had the opportunity to perform a full investigation of the
Property prior to the date hereof, and Purchaser is fully satisfied with
its opportunity to investigate the Property prior to the date hereof;
(iv) Purchaser has not relied upon any statement or representation by
or on behalf of Seller unless such statement or representation is
specifically set forth in this Agreement; and
(v) As of the date hereof, Purchaser has made such legal, factual and
other inquiries and investigations as Purchaser has deemed necessary,
desirable or appropriate with respect to the Property and the value and
marketability thereof and of the appurtenances, facilities and equipment
thereof. Such inquiries and investigations of Purchaser are hereby deemed
to include, without limitation, the physical components of all portions of
11
the Improvements, the condition of repair of the Property or any portion
thereof, such state of facts as a current title report and/or an accurate
survey would show or disclose, and the present and future zoning,
ordinances, resolutions and regulations of the city, county and state where
the Improvements are located.
(c) Release. Without in any way limiting the generality of the preceding
Section 15(b), Purchaser specifically acknowledges and agrees that it hereby
waives, releases and discharges any claim it has, might have had, or may have,
against each of Seller and its affiliates, and its and their officers,
directors, employees and agents, relating to, arising out of or with respect to
(i) the condition of the Property, either patent or latent, (ii) Purchaser's
ability, or inability, to obtain or maintain temporary or final certificates of
occupancy or other licenses for the use or operation of the Improvements, and/or
certificates of compliance for the Improvements, (iii) the actual or potential
income, or profits, to be derived from the Property, (iv) the real estate, or
other, taxes or special assessments, now or hereafter payable on account of, or
with respect to, the Property, (v) Purchaser's ability or inability to demolish
the Improvements or otherwise develop the Property, (vi) the environmental
condition of the Property, (vii) any default or alleged default by Seller or its
affiliates with respect to the Property under any of the leases pursuant to
which Seller or Ventas Finance I, LLC leased the Property to Purchaser,
including without limitation, any default or alleged default regarding the
granting or withholding of Seller's or Ventas Finance I, LLC's consent to any
proposed sublease(s) with respect to all or any portion of the Property or the
obtaining of any required governmental licenses, permits or approvals in
connection with any such proposed sublease(s), or (viii) any other matter
relating to the Property.
16. General Provisions.
(a) Entire Agreement. This Agreement and exhibits hereto constitute the
entire agreement of Seller and Purchaser with respect to sale of the Property
and amendment of the Master Leases pursuant to the Master Lease Amendments and
supersede all prior or contemporaneous written or oral agreements, whether
express or implied, related to the subject matter hereof.
(b) Amendments. This Agreement may be amended only by a written agreement
executed and delivered by Seller and Purchaser.
(c) Waivers. No waiver of any provision or condition of, or default under,
this Agreement by any party shall be valid unless in writing signed by such
party. No such waiver shall be taken as a waiver of any other or similar
provision or of any future event, act, or default.
(d) Time. Time is of the essence of this Agreement. In the computation of
any period of time provided for in this Agreement or by law, the day of the act
or event from which the period of time runs shall be excluded, and the last day
of such period shall be included, unless it is not a Business Day, in which case
it shall run to the next day which is a Business Day. For the purpose of this
Agreement, the term "Business Day" means any day other than (i) Saturday, (ii)
12
Sunday, or (iii) any other day when federally insured banks in Chicago, Illinois
or New York, New York are required or authorized to be closed.
(e) Unenforceability. In the event that any provision of this Agreement
shall be unenforceable in whole or in part, such provision shall be limited to
the extent necessary to render the same valid, or shall be excised from this
Agreement, as circumstances require, and this Agreement shall be construed as if
said provision had been incorporated herein as so limited, or as if said
provision has not been included herein, as the case may be.
(f) Assignment. This Agreement may not be assigned by Purchaser or Seller
without the prior express written consent of the other party, which consent may
be given or withheld in such party's sole and absolute discretion.
(g) Notices. Any notices or other communications permitted or required to
be given hereunder shall be in writing, shall be delivered personally, by
reputable overnight delivery service, or by fax (provided a hard copy is
delivered on the next Business Day by personal delivery or reputable overnight
delivery service), and shall be addressed to the respective party as set forth
in this Section 16(g). All notices and communications shall be deemed given and
effective upon receipt thereof.
To Seller: Ventas Realty, Limited Partnership
c/o Ventas, Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: T. Xxxxxxx Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
With copies to: Ventas Realty, Limited Partnership
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
and
Barack Xxxxxxxxxx Xxxxxxxxxx
Xxxxxxx & Xxxxxxxxx LLC
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Page, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
13
To Purchaser: Kindred Healthcare, Inc. and
Kindred Healthcare Operating, Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
With copies to: Kindred Healthcare, Inc. and
Kindred Healthcare Operating, Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxx Xxxxxxxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
and
Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
(h) Governing Law. This Agreement shall be governed in all respects by the
internal laws of the Commonwealth of Kentucky without regard to the laws
regarding conflicts of laws.
(i) Counterparts. This Agreement may be executed in any number of identical
counterparts, any or all of which may contain the signatures of less than all of
the parties, and all of which shall be construed together as a single
instrument.
(j) Construction. Seller and Purchaser agree that each party and its
counsel have reviewed and approved this Agreement, and that any rules of
construction that provide that ambiguities be resolved against the drafting
party shall not be used in the interpretation of this Agreement or any
amendments or exhibits hereto. The words "include", "including", "includes" and
any other derivation of "include" means "including, but not limited to" unless
specifically set forth to the contrary. As used in this Agreement, the neuter
shall include the feminine and masculine, the singular shall include the plural,
and the plural shall include the singular, except where expressly provided to
the contrary. The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section, subsection or other subdivision. Headings of sections herein are for
convenience of reference only, and shall not be construed as a part of this
Agreement. Except to the extent expressly provided otherwise in this Agreement,
references to "sections" or "subsections" in this Agreement shall refer to
14
sections and subsections of this Agreement, and references to "exhibits" in this
Agreement shall mean exhibits attached to this Agreement.
(k) No Recording. Purchaser shall not, and shall not cause or permit any
other person to, record this Agreement or any memorandum or other evidence
thereof in any public records. If Purchaser violates the terms of this Section
16(k), then this Agreement shall be deemed ipso facto terminated and the Xxxxxxx
Money shall be retained by Seller, and Purchaser shall immediately pay to Seller
the Break-Up Fee.
(l) Obligations Joint and Several. Purchaser acknowledges that each entity
constituting Purchaser shall be jointly and severally liable for any and all
obligations of Purchaser hereunder or under any instrument executed by Purchaser
pursuant hereto.
(m) Public Announcement. Seller and Purchaser agree to cooperate with each
other to make joint and/or coordinated public announcements disclosing this
Agreement and the Transactions contemplated hereby.
(n) Form of Payment. All amounts required to be paid by Purchaser to, or as
directed by, Seller pursuant to the terms hereof (including, without limitation,
if applicable, the Break-Up Fee) shall, unless otherwise directed by Seller in
writing, be paid by federally insured wire transfer of immediately available
funds. Payments required by the terms hereof to be made on a particular date
shall be deemed to have been timely made if Seller (or any alternate payee
designated by Seller) receives such payment in the account specified in the wire
transfer instructions, to be provided to Purchaser by Seller, not later than
5:00 p.m. Chicago time on the date specified for such payment.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written.
PURCHASER:
KINDRED HEALTHCARE, INC., a Delaware
corporation
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
-------------------------------
Its: Senior Vice President, Chief
Financial Officer and Treasurer
-------------------------------
KINDRED HEALTHCARE OPERATING, INC., a
Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
-------------------------------
Its: Senior Vice President, Chief
Financial Officer and Treasurer
-------------------------------
SELLER:
VENTAS REALTY, LIMITED PARTNERSHIP, a
Delaware limited partnership
By: Ventas, Inc.
Its: Sole General Partner
By: /s/ T. Xxxxxxx Xxxxx
-------------------------
Name: T. Xxxxxxx Xxxxx
-------------------------
Its: Executive Vice President
and General Counsel
-------------------------
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