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ASSIGNMENT OF LEASES AND RENTS
from
VENTAS REALTY, LIMITED PARTNERSHIP,
Assignor
to
BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT,
Assignee
Dated: As of January 31, 2000
Property:
Facility Number 111
Rolling Hills Health Care Center
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▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
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ASSIGNMENT OF LEASES AND RENTS (said Assignment, as the same may be
amended, amended and restated, supplemented or otherwise modified, renewed or
replaced from time to time, the "Assignment") dated as of January 31, 2000, from
VENTAS REALTY, LIMITED PARTNERSHIP, a Delaware Limited Partnership having its
principal office at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as assignor hereunder ("Assignor"), to BANK OF
AMERICA, N.A., a national banking association having an office at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, in its capacity as
Administrative Agent for the benefit of the Secured Parties ("Assignee").
Preliminary Statement
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WHEREAS, Ventas Realty, Limited Partnership, as "Borrower", is justly
indebted to the Lenders in the aggregate principal sum of up to NINE HUNDRED AND
NINETY EIGHT MILLION, THREE HUNDRED SIXTY SEVEN THOUSAND AND NINE HUNDRED
DOLLARS ($998,367,900.00), together with interest thereon and other amounts,
payable in accordance with and pursuant to (i) that certain Amended and Restated
Credit, Security, Guaranty and Pledge Agreement dated as of April 29, 1998, as
amended and restated as of January 31, 2000 among the Borrower, the Guarantors
referred to therein, the lenders from time to time party thereto (said lenders,
their respective successors and assigns, and any other persons that may
thereafter become parties thereto as lenders, being collectively referred to
herein as the "Lenders"), Bank of America, N.A., as Administrative Agent and
Issuing Bank and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Documentation
Agent (said Credit Agreement, as the same may be amended, amended and restated,
supplemented or otherwise modified, renewed or replaced from time to time, the
"Credit Agreement") and (ii) certain other loan documents executed and delivered
by the Borrower, any of its subsidiaries and the Guarantors pursuant to or in
connection with the Credit Agreement; and
WHEREAS, in this Assignment, any reference to "Secured Indebtedness" shall
mean the total indebtedness, obligations and liabilities to be secured by this
Assignment consisting of the sum of the following:
(i) the aggregate principal of all Loans and other advances made and to be
made by the Lenders under the Credit Agreement, the outstanding amount of
which shall not exceed NINE HUNDRED AND NINETY EIGHT MILLION, THREE HUNDRED
SIXTY SEVEN THOUSAND AND NINE HUNDRED DOLLARS ($998,367,900.00) at any
time; plus
(ii) interest on the principal amount of all Loans made and to be made by
the Lenders under the Credit Agreement, as provided in the Credit
Agreement; plus
(iii) all other amounts payable under the Credit Agreement, the Mortgage
and any other Fundamental Document which relates to the Credit Agreement,
or any of the
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security therefor, in each case as the same may be amended, amended and
restated, modified or supplemented from time to time (including advances to
protect the collateral and all costs of enforcement), or as the maturities
thereof may be extended or renewed from time to time; plus
(iv) any and all Hedging Obligations payable by Borrower to the Hedging
Banks or any amounts payable to Bank of America, N.A. or any other Lender
in connection with any bank account maintained by the Borrower or any other
Credit Party (as defined in the Credit Agreement) with Bank of America,
N.A. or any other Lender or any other banking services provided to the
Borrower or with any other Credit Party by Bank of America, N.A., ▇▇▇▇▇▇
Guaranty Trust Company of New York or any other Lender with respect to, or
in any way related to, any of the Fundamental Documents; plus
(v) any other Obligations (as defined in the Credit Agreement) of the
Borrower; and
WHEREAS, the final maturity of the Secured Indebtedness is December 31,
2007 ("Maturity Date");
WHEREAS, Grantor is required to execute and deliver this Assignment
pursuant to the terms of the Credit Agreement;
WHEREAS, in furtherance of the foregoing, Assignor has executed and
delivered to Assignee a Mortgage, Open-End Mortgage, Deed of Trust, Trust Deed,
Deed to Secure Debt, Credit Line Deed of Trust, Assignment of Leases and Rents,
Security Agreement and Financing Statement, dated of even date herewith (the
"Mortgage") on inter alia, all of Assignor's right, title and interest in and to
the land more particularly described in Schedule A attached hereto and made a
part hereof (the "Land") and any and all buildings and improvements now or
hereafter located or erected on the Land (collectively, the "Improvements"). The
Land and the Improvements, together with certain other properties and rights
described in the Mortgage, are hereinafter referred to collectively as the
"Mortgaged Property"; and,
WHEREAS, the Lenders require that the Assignor execute and deliver this
absolute Assignment of Leases and Rents to provide an additional source of
repayment for and to further secure the prompt and punctual payment of the
Secured Indebtedness. Accordingly, Assignor has duly authorized the execution
and delivery of this Assignment of Leases and Rents, and all actions required by
law and all actions of Assignor required therefor have been duly taken.
NOW THEREFORE, in consideration of the foregoing and in consideration of
good and valuable consideration paid by Assignee to Assignor, the receipt and
sufficiency of which is hereby acknowledged, and in order to further secure the
prompt and punctual payment of the Secured Indebtedness and the performance of
the Assignor of the covenants and agreements contained in the Credit Agreement,
the Mortgage and the other Fundamental Documents, Assignor by these presents
does hereby unconditionally, absolutely and presently bargain, sell,
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assign and set over unto Assignee all right, title and interest of Assignor in
and to any and all existing or future leases (including without limitation,
those leases more particularly described on Schedule B attached hereto and made
a part hereof), lettings, tenancies, subleases, franchises, concessions, or any
other agreements which may now or hereafter be entered into in respect of the
Mortgaged Property, or upon or covering use or occupancy of all or any part of
the Mortgaged Property as the same may be hereafter amended, modified, restated,
extended, renewed, replaced or consolidated and any and all guaranties of any
lessee's obligations under any provisions thereof and all rights relating
thereto and under any and all extensions and renewals thereof (any such leases
or lease agreements and tenancies being hereinafter referred to individually as
a "Lease" and collectively as "Leases" and any lessee thereunder is hereinafter
referred to individually as a "Lessee" and collectively as "Lessees");
TOGETHER with the immediate and continuing right to collect and receive all
the rents, income, receipts, revenues and other benefits, issues and profits and
all cash collateral now due or which may become due or to which Assignor may now
or shall hereafter (including the period of redemption, if any) become entitled
or may demand or claim, arising or issuing from or out of the Leases or from or
out of the Premises or any part thereof, including, but not by way of
limitation: minimum rents, additional rents, escalation rents, percentage rents,
parking income, tax and insurance contributions, deficiency rents and liquidated
damages following default, the premium payable by any Lessee upon the exercise
of a cancellation privilege provided in any Lease, all income from any licenses,
franchises or any other agreements and all proceeds payable under any
condemnation awards or settlements, policies of insurance or settlements thereof
covering loss of rents resulting from untenantability caused by destruction or
damage to the Mortgaged Property or any part thereof together with any and all
rights and claims of any kind which Assignor may have against any Lessee or any
subtenants or occupants of the Mortgaged Property, additional charges,
royalties, insurance proceeds, condemnation awards and other payments, tenders
and security deposits payable to or receivable by Assignor under the Leases, all
damages or other amounts payable in the event of any expiration or termination
of the Leases pursuant to the terms thereof, by operation of law or otherwise,
any indemnification against or reimbursement for sums paid and costs and
expenses incurred by Assignor under the Leases or otherwise, and any awards in
the event of the bankruptcy of any tenant or guarantor of a Lease (all such
monies, rights and claims described in this paragraph being called "Rents").
TOGETHER with all claims, rights, powers, privileges and remedies of
Assignor, whether provided for in the Leases or arising by statute or at law or
in equity or otherwise, consequent on any failure on the part of any tenant to
perform or comply with any terms of the Leases; all rights to take all action
upon the happening of a default under the Leases as shall be permitted by the
Leases or by law, including without limitation, the commencement, conduct and
consummation of proceedings at law or in equity; and the full power and
authority, in the name of Assignor or otherwise, to enforce, collect, receive
and receipt for any and all of the foregoing and to do any and all other acts
and things whatsoever which Assignor or any landlord is or may be entitled to do
under the Leases.
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TO HAVE AND TO HOLD unto the Assignee, its successors and assigns, forever.
This Assignment is intended to be an absolute assignment from Assignor to
Assignee and not merely the passing of a security interest, Assignor reserving,
however, a license to collect, except as hereinafter provided, the Rents, as
they respectively become due, but not more than one month in advance, and to
enforce the Leases, so long as no Event of Default (as such term is defined in
the Credit Agreement) shall have occurred. Said license shall terminate and be
revoked automatically upon the occurrence of an Event of Default and all Rents
and other sums then held or thereafter received by Assignor from the ownership
and operation of the Mortgaged Property shall be held by Assignor in trust for
the benefit of Assignee and Assignor shall forthwith remit same in their
entirety to Assignee or its designee and Assignee (or a Receiver appointed
pursuant to the provisions of Paragraph 8 of this Assignment) may to the fullest
extent permitted by the Leases: (i) exercise any of Assignor's rights under the
Leases; (ii) enforce the Leases; (iii) demand, collect, ▇▇▇ for, attach, levy,
recover, receive, compromise and adjust, and make, execute and deliver receipts
and releases for all Rents, and for all other payments that may then be or may
thereafter become due, owing or payable with respect to the Leases; and (iv)
generally, do, execute and perform any other act, deed, matter or thing
whatsoever that ought to be done, executed and performed in and about or with
respect to the Leases, as fully as allowed or authorized by this Assignment.
Upon the occurrence of such Event of Default, Assignee shall not be required to
take any action whatsoever, including, without limitation, instituting legal
proceedings of any kind, to terminate Assignor's license to collect Rents or
enforce any of the other provisions or remedies contained in the Assignment.
Assignor hereby covenants and agrees as follows:
1. Definitions. In this Assignment, all words and terms not defined herein
shall have the respective meanings set forth in the Credit Agreement.
2. Intentionally Omitted.
3. Rights and Remedies. Assignor agrees that upon the occurrence of an
Event of Default, the license reserved herein by Assignor shall cease and
terminate, and Assignee is hereby authorized to enter and take possession of the
Mortgaged Property, or any part thereof, and to perform all acts necessary for
the operations and maintenance of the Mortgaged Property in the same manner and
to the same extent that Assignor might reasonably so act. It is the intention of
the parties that Assignee's right to collect the Rents due and owing may be
exercised without electing to exercise Assignee's right to enter, take over and
assume the management, operation and maintenance of the Mortgaged Property. In
furtherance thereof and not by way of limitation, Assignee is empowered, but
shall be under no obligation, to collect the Rents, to enforce payment thereof
and the performance of any and all other terms and provisions of the Leases, to
exercise all the rights and privileges of Assignor thereunder, including the
right to fix or modify Rents, to bring or defend any suits in connection with
the possession of the Mortgaged Property or any part thereof in its own name or
Assignor's name, to relet the Mortgaged Property
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or any part thereof and to collect the Rents under any new Lease. Assignee shall
from time to time apply the net amount of income after payment of all proper
costs and charges, including loss or damage referred to hereinafter in Paragraph
7, and reasonable attorneys' fees, costs, expenses and charges through all
appeals, to the Secured Indebtedness. The manner of the application of such net
income, the reasonableness of the costs and charges to which such net income is
applied and the item or items which shall be credited thereby shall be within
the sole and absolute discretion of Assignee. Such entry and taking possession
of the Mortgaged Property, or any part thereof, may be made by actual entry and
possession, or by written notice to Assignor, as Assignee may elect, and no
further authorization shall be required. Assignee shall only be accountable for
money actually received by it pursuant to this Assignment. Notwithstanding any
action taken by Assignee pursuant to this Paragraph 3 or otherwise in this
Assignment, neither the assignment made pursuant hereto or any such action shall
constitute Assignee as a "mortgagee in possession."
4. Termination of Assignment. This Assignment shall be void and of no
effect upon the Bank Credit Termination Date or upon the discharge and release
of the Mortgage in accordance with its terms or the requirements of the Credit
Agreement.
5. Consent to Payment of Rents. Assignor irrevocably consents that the
Lessees, upon demand and notice from Assignee of an Event of Default, shall pay
the Rents to Assignee without liability of the Lessees for the determination of
the actual existence of any such Event of Default claimed by Assignee. Assignor
hereby irrevocably authorizes and directs the Lessees, upon receipt of any
notice from Assignee of an Event of Default, to pay to the Assignee the Rents
due and to become due under the Leases. Assignor agrees that the Lessees shall
have the right to rely upon any such notices of Assignee and that the Lessees
shall pay such Rents to Assignee, without any obligation and without any right
to inquire as to whether such Event of Default actually exists, notwithstanding
any claim of Assignor to the contrary. Assignor shall have no claim against any
Lessee for any Rents paid by any Lessee to Assignee. Upon the curing of the
Event of Default, Assignee shall give written notice thereof to Lessees, and
thereafter, until further notice from Assignee, Lessees shall pay the Rents to
Assignor.
6. Right to Further Assignment. Assignee shall have the right to assign
Assignor's right, title, and interest in the Leases to any subsequent holder of
the Mortgage and to any person acquiring title to the Mortgaged Property through
foreclosure or otherwise. The receipt by Assignee of any Rents pursuant to this
Assignment after the institution of foreclosure proceedings under the Mortgage
shall not cure such default nor affect such proceedings or any sale pursuant
thereto. After Assignor shall have been barred and foreclosed of all right,
title, interest, and equity of redemption in the Mortgaged Property, no assignee
of Assignor's interest in the Leases shall be liable to account to Assignor for
the Rents thereafter accruing.
7. Indemnity. Assignor hereby agrees to indemnify and hold Assignee
harmless from and against any and all costs and expenses, liability, loss, or
damage (including, without limitation reasonable attorneys' fees, costs,
expenses and charges through all appeals but
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excluding any such costs and expenses, liability, loss or damage to the extent
incurred (x) by reason of the gross negligence or willful misconduct, as
determined by a final order or judgment of a court of competent jurisdiction, of
Assignee, or (y) in any litigation in which Assignee and Assignor are adverse to
each other, and in which the Assignor prevails on its claims and the Assignee
does not prevail on its defenses or its counterclaims interposed in such
litigation) which Assignee may incur (a) under any of the Leases, (b) by reason
of this Assignment, (c) arising from any action taken by Assignee pursuant to
this Assignment, (d) as a result of any claims or demands which may be asserted
against Assignee by reason of any alleged obligation or undertaking to be
performed or discharged by Assignee under any of the Leases or this Assignment,
or (e) the enforcement (or attempted enforcement) of this indemnity. Nothing
herein contained shall be construed to bind Assignee to the performance of any
of the terms and provisions contained in any of the Leases, or otherwise to
impose any obligation on Assignee until such time as Assignee shall have
succeeded to the interests of Assignor under the Leases through foreclosure of
the Mortgage, the acceptance of a deed in lieu of foreclosure, or otherwise.
Prior to actual entry and taking possession of the Mortgaged Property by
Assignee, this Assignment shall not operate to place responsibility for the
control, care, management, or repair of the Mortgaged Property upon Assignee or
for the carrying out of any of the terms and provisions of any Lease. Should
Assignee incur any liability by reason of actual entry and taking possession or
for any other reason or occurrence or sustain loss or damage under any Lease or
under or by reason of this Assignment or in the defense of any such claims or
demands, Assignee shall within fifteen (15) days after demand therefor from
Assignee, reimburse Assignee for the amount thereof, including interest at the
rate set forth in Section 2.9 (a)(iii) of the Credit Agreement, or the highest
rate permitted by law, whichever is lesser, together with all costs and expenses
(including without limitation reasonable attorneys' fees, costs, expenses and
charges), and may retain possession and collect the Rents and, from time to
time, apply them in or toward satisfaction of or reimbursement for said loss or
damage. The indemnity obligations of Assignor set forth in this Paragraph 7 are
in addition to and not in limitation of any indemnity obligations provided in
the Credit Agreement and shall survive (on an unsecured basis) the Bank Credit
Termination Date, the termination of the Credit Agreement, the discharge and
release of the Mortgage, and/or the termination of this Assignment.
8. Receiver. Without limiting any other provision of this Assignment, upon
the occurrence of an Event of Default, Assignee shall be entitled to the
appointment of a receiver, supervisor, trustee, liquidator, conservator or other
custodian (a "Receiver") of the Mortgaged Property, without notice to the
Assignor, to the fullest extent permitted by law, as a matter of right and
without regard to or the necessity to disprove the adequacy of the security for
the Secured Indebtedness or the solvency of the Assignor or any other obligor,
and the Assignor hereby, to the fullest extent permitted by Applicable Law,
irrevocably waives such necessity and consents to such appointment, without
notice, said appointee to be vested with the fullest powers permitted under
Applicable Law. Any funds received by Assignee or such Receiver hereunder, after
payment of all proper costs and charges, shall be applied to the Secured
Indebtedness in accordance with the provisions of the Credit Agreement and the
Mortgage. Assignee shall be accountable to Assignor only for monies actually
received by Assignee or such Receiver pursuant
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to this Assignment. The collection of said funds and the application thereof as
aforesaid shall not cure or waive any default or waive, modify or affect any
notice of default hereunder or under the Mortgage or invalidate any act done
pursuant to such notice. Nothing contained herein shall operate or be construed
to: (a) obligate Assignee, or a Receiver to perform any of the terms, covenants
or conditions contained in the Leases or otherwise to impose any obligation upon
Assignee or such Receiver with respect to the Leases; or (b) place upon Assignee
or such Receiver any responsibility for the operation, control, care, management
or repair of the Mortgaged Property.
9. Lease Enforcement. Assignor at its expense will enforce all material
provisions of the Leases in accordance with their terms. Neither this Assignment
nor any action or inaction on the part of Assignee shall release (i) any Lessee,
(ii) any guarantor of any Lease or (iii) Assignor from any of their respective
obligations under the Leases or constitute an assumption of any such obligation
on the part of Assignee. No action or failure to act on the part of Assignor
shall adversely affect or limit the rights of Assignee under this Assignment or,
through this Assignment, under the Leases.
10. Further Assurances. Assignor will, from time to time, upon request of
Assignee or a Receiver, execute all instruments and further assurances and all
supplemental instruments and take all such action as Assignee from time to time
may reasonably request in order to perfect, preserve and protect the interests
intended to be assigned to Assignee hereby.
11. Assignor's Lease Covenants. Assignor and Assignee agree that the Leases
shall remain in full force and effect irrespective of any merger of the
interests of the lessor and any Lessee thereunder. All rights, powers and
privileges of Assignee herein set forth are coupled with an interest and are
irrevocable. If the Leases shall be amended as permitted by the terms of the
Credit Agreement, they shall continue to be subject to the provisions hereof
without the necessity of any further act by any of the parties hereto.
12. Notices. Notices and other communications provided for herein shall be
in writing and shall be delivered or mailed (or if by facsimile communications
equipment, delivered by such equipment) addressed, (a) if to Assignee, to it at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 66th floor, TX1-492-66-01, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇ ▇▇▇▇▇▇▇,
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇ with a copy to Bank of America, N.A., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, NC1-001-1504, Attn: Credit Services, Facsimile No.:
704-409-0023, with a courtesy copy to ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq., Facsimile No.:
▇▇▇-▇▇▇-▇▇▇▇, or (b) if to Assignor, to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attn: General Counsel, Facsimile No.:
▇▇▇-▇▇▇-▇▇▇▇, with a courtesy copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., ▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Facsimile No.:
▇▇▇-▇▇▇-▇▇▇▇, or (c) such other address as such party may from time to time
designate by giving written notice to the other parties hereunder. Any failure
of any Person giving notice pursuant to this Section to provide a courtesy copy
to a party as provided herein shall not affect the validity of such notice. All
notices and other communications given to
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any party hereto in accordance with the provisions of this Assignment shall be
deemed to have been given (x) on the date of receipt, when sent by registered or
certified mail, postage prepaid, return receipt requested, if by mail, (y) when
delivered, if delivered by hand or overnight courier service or (z) when receipt
is acknowledged, if by facsimile communications equipment, in each case
addressed to such party as provided in this Section or in accordance with the
latest unrevoked written direction from such party. No notice to or demand on
Assignor shall entitle Assignor to any other or further notice or demand in the
same, similar or other circumstances.
13. Governing Law; Severability. THIS ASSIGNMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE IN WHICH THE REAL
PROPERTY IS LOCATED. WHENEVER POSSIBLE, EACH PROVISION OF THIS ASSIGNMENT SHALL
BE INTERPRETED IN SUCH MANNER AS TO BE EFFECTIVE AND VALID UNDER APPLICABLE LAW,
BUT IF ANY PROVISION OF THIS ASSIGNMENT SHALL BE PROHIBITED BY OR INVALID UNDER
APPLICABLE LAW, SUCH PROVISION SHALL BE INEFFECTIVE TO THE EXTENT OF SUCH
PROHIBITION OR INVALIDITY, WITHOUT INVALIDATING THE REMAINING PROVISIONS OF THIS
ASSIGNMENT.
14. Recording. Assignor shall pay all recording and filing fees in respect
to this Assignment and any agreements, instruments and documents made pursuant
to the terms hereof or ancillary hereto, as well as any and all taxes and fees
which may be due and payable on the recording of this Assignment and any taxes
and fees hereafter imposed on this Assignment. Should Assignor fail to pay the
same, all such recording and filing fees and taxes may be paid by Assignee on
behalf of Assignor and the amount thereof, together with interest at the rate
set forth in Section 2.9 (a)(iii) of the Credit Agreement, shall be payable by
Assignor to Assignee within fifteen (15) days after demand therefor from
Assignee, or at the option of Assignee, Assignee may reimburse itself therefor
out of the Rents collected by Assignee. Assignor agrees that any such charge
shall not be deemed to be additional interest or a penalty, but shall be deemed
to be liquidated damages because of the difficulty in computing the actual
amount of damages in advance; provided, however, that any sums collected by
Assignee as liquidated damages, as aforesaid, which are held to be interest in
excess of the maximum rate permitted by law, shall be deemed a payment in
reduction of the principal sum then outstanding under the Credit Agreement and
shall be so applied.
15. Rights Cumulative; No Waiver. The rights and remedies herein expressed
to be vested in or conferred upon the Assignee shall be cumulative and shall be
in addition to and not in substitution for or in derogation of the rights and
remedies set forth in the Credit Agreement, the Mortgage and other Fundamental
Documents or conferred by any Applicable Law. The failure, at any one or more
times, of the Assignee to exercise any right under any covenant or stipulation
herein contained shall not in any way affect this Assignment nor the rights of
the Assignee hereunder, nor operate as a release from any personal liability of
the Assignor under the Credit Agreement and/or the other Fundamental Documents,
nor under any covenant or stipulation therein contained.
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16. Miscellaneous. The headings of the sections, paragraphs and
subdivisions of this Assignment are for the convenience of reference only, are
not to be considered a part hereof and shall not limit or otherwise affect any
of the terms hereof. Whenever in this Assignment one of the parties hereto is
named or referred to, the heirs, legal representatives, successors and assigns
of such party shall be included and all covenants and agreements contained in
this Assignment by or on behalf of Assignor or by or on behalf of Assignee shall
bind and inure to the benefit of their respective heirs, legal representatives,
successors and assigns, whether so expressed or not. Whenever the singular or
plural number, masculine or feminine or neuter gender is used herein, it shall
equally include the other. No change, amendment, modification, abridgement,
cancellation or discharge hereof or of any part hereof, shall be valid unless
consented to in writing by Assignee.
17. Conflict. In case of any conflict or inconsistency between any
provision of this Assignment and the Credit Agreement, the provisions of the
Credit Agreement shall control.
[Signature Page Follows]
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IN WITNESS WHEREOF, Assignor has executed this Assignment as of the day and
year first above written.
Attest: Ventas Realty, Limited Partnership,
a Delaware Limited Partnership
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: Ventas, Inc., a Delaware
-------------------------------- corporation, General Partner
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President
Signed and Acknowledged in By: /s/ T. ▇▇▇▇▇▇▇ ▇▇▇▇▇
the Presence of: ------------------------------
T. ▇▇▇▇▇▇▇ ▇▇▇▇▇, Executive Vice-
President, General Counsel and
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Secretary
--------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Louisville, Kentucky 40207-1642
---------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
This instrument was prepared by
and recorded counterparts should
be returned to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
11
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
Before me, a Notary Public in and for said County and State, personally
appeared T. ▇▇▇▇▇▇▇ ▇▇▇▇▇, the Vice President of Ventas Inc., a Delaware
corporation, in its capacity, as general partner of Ventas Realty, Limited
Partnership, a Delaware limited partnership, who acknowledged execution of the
foregoing instrument for and on behalf of said corporation, and who, having been
duly sworn, stated that the representations therein contained are true.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Notary Public
Facility #111
IN
Schedule A
THE LAND
THAT PORTION OF LAND SITUATE IN LOT NUMBER 84 OF THE ILLINOIS GRANT IN ▇▇▇▇▇
COUNTY, INDIANA, NEW ALBANY TOWNSHIP, AND BEING DESCRIBED AS FOLLOWS:
CONSIDERING THE SOUTHEASTERLY LINE OF LOT NUMBER 84 OF THE ILLINOIS GRANT IN
▇▇▇▇▇ COUNTY AS BEARING NORTH 54 DEGREES 35 MINUTES 00 SECONDS EAST WITH ALL
OTHER BEARINGS HEREIN CONTAINED RELATIVE THERETO: BEGINNING AT A FOUND STONE ON
THE SOUTHEASTERLY LINE OF LOT NO. 84 OF THE ILLINOIS GRANT AT THE COMMON CORNERS
OF LOTS NUMBER 62 AND 63 OF THE ILLINOIS GRANT AS ESTABLISHED BY A LEGAL SURVEY
AS RECORDED IN SURVEY RECORD BOOK, PAGES 224 AND 225 IN THE ▇▇▇▇▇ COUNTY,
INDIANA SURVEYOR'S OFFICE: THENCE ON AND ALONG THE SOUTHEASTERLY LINE OF LOT
NUMBER 84 AND THE NORTHWESTERLY LINE OF LOT NUMBER 63 54 DEGREES 35 MINUTES 00
SECONDS EAST 2366.30 FEET DEED AND MEASURED TO A FOUND 1 1/8" STEEL BAR ON THE
CENTERLINE OF THE ST. ▇▇▇▇▇▇ ROAD; THENCE ON AND ALONG SAID CENTERLINE NORTH 29
DEGREES 58 MINUTES 22 SECONDS WEST 957.70 FEET DEED AND MEASURED TO A SET PK
NAIL ON THE SOUTHEASTERLY LINE OF THE LAND DESCRIBED IN DEED DRAWER 11 PAGE
2618; THENCE ON AND ALONG SAID SOUTHEASTERLY LINE SOUTH 60 DEGREES 01 MINUTES 38
SECONDS WEST 30.00 FEET TO A SET REBAR ON THE SOUTHWESTERLY RIGHT OF WAY LINE
FOR ST ▇▇▇▇▇▇ ROAD BEING THE TRUE PLACE OF BEGINNING; THENCE CONTINUING ON AND
ALONG SAID SOUTHEASTERLY LINE SOUTH 60 DEGREES 01 MINUTES 38 SECONDS WEST 714.50
FEET TO A FOUND REBAR ON THE WESTERLY LINE OF SAID DEED: THENCE ON AND ALONG
SAID WESTERLY LINE NORTH 35 DEGREES 57 MINUTES
12 SECONDS WEST 538.05 FEET DEED AND MEASURED TO A FOUND REBAR ON THE NORTHERLY
LINE OF SAID DEED RECORD; THENCE ON AND ALONG SAID NORTHERLY LINE NORTH 55
DEGREES 38 MINUTES 46 SECONDS EAST 261.77 FEET TO A FOUND REBAR; THENCE
CONTINUING ON AND ALONG SAID NORTHERLY LINE NORTH 56 DEGREES 34 MINUTES 03
SECONDS EAST 510.54 FEET TO A SET REBAR ON THE SOUTHWESTERLY RIGHT-OF-WAY LINE
FOR THE ST. ▇▇▇▇▇▇ ROAD; THENCE ON AND ALONG SAID LINE SOUTH 29 DEGREES 58
MINUTES 22 SECONDS EAST 585.00 FEET TO THE PLACE OF BEGINNING.
Schedule B
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THE LEASES
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Master Lease Agreement General Terms and Conditions dated as of April 30,
1998 between Ventas, Inc. (formerly known as Vencor, Inc.), First Healthcare
Corporation, Nationwide Care, Inc., Northwest, Healthcare, Inc., Hillhaven of
Central Florida, Inc., Hillhaven/Indiana Partnership, St. ▇▇▇▇▇▇ Nursing Home
Limited Partnership, Vencor Hospitals East, Inc., Hahnemann Hospital, Inc.,
Vencor Hospitals Illinois, Inc., Carolwood Care Center, Windsor ▇▇▇▇▇ Nursing
Home Partnership, San Marcos Nursing Home Partnership, New Pond Village
Associates, Health Haven Associates, L.P., Oak Hill Nursing Associates, L.P.,
and Ventas Realty, Limited Partnership, as lessors, and Vencor Healthcare, Inc.
and Vencor Operating, Inc., as tenant, as amended, modified, restated, extended,
supplemented, renewed or consolidated from time to time.
