<PAGE>
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1998
OR
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM __________ TO __________.
COMMISSION FILE NUMBER 1-10989
VENTAS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 61-1055020
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
3300 AEGON CENTER
400 WEST MARKET STREET
LOUISVILLE, KY 40202
(Address of principal executive offices) (Zip Code)
(502) 596-2000
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. YES X NO
----- -----
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
CLASS OF COMMON STOCK OUTSTANDING AT OCTOBER 31, 1998
--------------------- -------------------------------
Common stock, $.25 par value 67,848,837 shares
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1 of 23
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VENTAS, INC.
FORM 10-Q
INDEX
PAGE
----
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements:
Condensed Consolidated Statements of Income--for the quarter and
five months ended September 30, 1998............................. 3
Condensed Consolidated Balance Sheet--September 30, 1998........... 4
Condensed Consolidated Statement of Cash Flows--for the five months
ended September 30, 1998......................................... 5
Notes to Condensed Consolidated Financial Statements............... 6
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations.............................................. 14
Item 3. Quantitative and Qualitative Disclosures About Market Risk......... 21
PART II. OTHER INFORMATION
Item 1. Legal Proceedings.................................................. 21
Item 6. Exhibits and Reports on Form 8-K................................... 22
2
<PAGE>
VENTAS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
FOR THE QUARTER AND FIVE MONTHS ENDED SEPTEMBER 30, 1998
(UNAUDITED)
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
FIVE
QUARTER MONTHS
--------- ---------
<S> <C> <C>
Rental income..................................................... $56,168 $93,524
------- -------
General and administrative........................................ 1,889 3,508
Depreciation...................................................... 10,729 17,864
Interest expense.................................................. 22,649 38,028
------- -------
35,267 59,400
------- -------
Income before income taxes........................................ 20,901 34,124
Provision for income taxes........................................ 7,943 12,968
------- -------
Income from operations............................................ 12,958 21,156
Extraordinary loss on extinguishment of debt, net of income tax
benefit of $50 for the quarter and $4,935 for the five months.. (81) (8,051)
------- -------
Net income............................................... $12,877 $13,105
======= =======
Earnings per common share:
Basic:
Income from operations...................................... $ 0.19 $ 0.31
Extraordinary loss on extinguishment of debt................ - (0.12)
------- -------
Net income............................................... $ 0.19 $ 0.19
======= =======
Diluted:
Income from operations...................................... $ 0.19 $ 0.31
Extraordinary loss on extinguishment of debt................ - (0.12)
------- -------
Net income............................................... $ 0.19 $ 0.19
======= =======
Funds from operations............................................. $23,687 $39,020
Funds from operations per common share:
Basic.......................................................... $ 0.35 $ 0.58
Diluted........................................................ 0.35 0.58
Shares used in computing earnings and funds from operations
per common share:
Basic.......................................................... 67,822 67,802
Diluted........................................................ 67,853 67,848
</TABLE>
See accompanying notes.
3
<PAGE>
VENTAS, INC.
CONDENSED CONSOLIDATED BALANCE SHEET
SEPTEMBER 30, 1998
(UNAUDITED)
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
ASSETS
<S> <C>
Real estate properties:
Land............................................................................ $ 120,890
Buildings and improvements...................................................... 1,071,501
----------
1,192,391
Accumulated depreciation........................................................ (250,631)
----------
941,760
Cash and cash equivalents.......................................................... 2,373
Deferred financing costs........................................................... 10,138
Advances to employees.............................................................. 3,890
Due from Vencor, Inc............................................................... 1,592
Other.............................................................................. 250
----------
$ 960,003
==========
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
Liabilities:
Bank credit facility and other debt............................................. $ 961,549
Accrued salaries, wages and other compensation.................................. 355
Accrued interest................................................................ 4,024
Income taxes payable............................................................ 1,525
Other accrued liabilities....................................................... 1,022
Deferred income taxes........................................................... 15,700
----------
984,175
Commitments and contingencies
Stockholders' equity (deficit):
Common stock, $0.25 par value; authorized 180,000 shares; issued 73,608 shares.. 18,402
Capital in excess of par value.................................................. 140,078
Unearned compensation on restricted stock....................................... (2,101)
Accumulated deficit............................................................. (24,660)
----------
131,719
Treasury stock; 5,759 shares..................................................... (155,891)
-----------
(24,172)
----------
$ 960,003
==========
</TABLE>
See accompanying notes.
4
<PAGE>
VENTAS, INC.
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
FOR THE FIVE MONTHS ENDED SEPTEMBER 30, 1998
(UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
FIVE MONTHS
ENDED
SEPTEMBER 30, 1998
-------------------
<S> <C>
Cash flows from operating activities:
Net income............................................................................... $ 13,105
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation.......................................................................... 17,864
Extraordinary loss on extinguishment of debt.......................................... 12,986
Provision for deferred income taxes................................................... (207)
Increase in other assets.............................................................. (250)
Increase in accounts payable and accrued liabilities.................................. 5,358
Increase in income taxes payable...................................................... 1,525
Increase in amount due from Vencor, Inc............................................... (75)
Amortization of deferred financing costs.............................................. 2,004
Other................................................................................. 230
-----------
Net cash provided by operating activities....................................... 52,540
-----------
Cash flows from investing activities:
Purchase of real estate properties....................................................... (7,403)
Advances to employees.................................................................... (3,890)
Sale of Vencor, Inc. preferred stock in connection with the reorganization transactions.. 17,700
-----------
Net cash provided by investing activities....................................... 6,407
-----------
Cash flows from financing activities:
Net change in borrowings under revolving line of credit.................................. 35,000
Issuance of long-term debt............................................................... 950,000
Repayment of long-term debt.............................................................. (29,540)
Repayment of long-term debt in connection with the reorganization transactions........... (1,000,171)
Payment of deferred financing costs...................................................... (12,017)
Issuances of common stock................................................................ 154
-----------
Net cash used in financing activities........................................... (56,574)
-----------
Change in cash and cash equivalents......................................................... 2,373
Cash and cash equivalents at beginning of period............................................ -
-----------
Cash and cash equivalents at end of period.................................................. $ 2,373
===========
Supplemental information:
Interest payments........................................................................ $ 32,074
Income tax payments...................................................................... 6,714
</TABLE>
See accompanying notes.
5
<PAGE>
VENTAS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 1--REPORTING ENTITY
Ventas, Inc. (the "Company"), formerly named Vencor, Inc., is a real estate
company which owns 219 nursing centers, 46 hospitals and eight personal care
facilities in 36 states as of October 15, 1998. The Company anticipates that it
will qualify as a real estate investment trust ("REIT") for Federal income tax
purposes on January 1, 1999.
On April 30, 1998, the Company changed its name to Ventas, Inc. and refinanced
substantially all of its long-term debt in connection with the spin off of its
healthcare operations through the distribution of the common stock of a new
entity (which assumed its former name), Vencor, Inc. ("Vencor") to stockholders
of record as of April 27, 1998 (the "Reorganization Transactions"). The
distribution was effected on May 1, 1998 (the "Distribution Date"). For
financial reporting periods subsequent to the Distribution Date, the historical
financial statements of the Company were assumed by Vencor and the Company is
deemed to have commenced operations on May 1, 1998. Accordingly, the Company
does not have comparable financial results for prior periods.
NOTE 2--BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements have
been prepared in accordance with generally accepted accounting principles and
include amounts based upon the estimates and judgments of management. Actual
amounts may differ from these estimates. Management believes that the financial
information included herein reflects all adjustments necessary for a fair
presentation of interim results, and except for the costs described in Note 4
and $304,000 of one-time public company application expenses, all such
adjustments are of a normal and recurring nature.
Beginning in May 1998, the Company adopted the provisions of Statement of
Financial Accounting Standards ("SFAS") No. 130 ("SFAS 130"), "Reporting
Comprehensive Income," which established new rules for the reporting of
comprehensive income and its components. SFAS 130 requires, among other things,
unrealized gains or losses on available-for-sale securities to be disclosed as
other comprehensive income. The adoption of SFAS 130 had no impact on the
Company's net income or stockholders' equity for the five months ended September
30, 1998.
In June 1997, the Financial Accounting Standards Board (the "FASB") issued
SFAS No. 131 ("SFAS 131"), "Disclosures about Segments of an Enterprise and
Related Information," which will become effective in December 1998 and requires
interim disclosures beginning in 1999. SFAS 131 requires public companies to
report certain information about operating segments, products and services, the
geographic areas in which they operate and major customers. The operating
segments are to be based on the structure of the enterprise's internal
organization whose operating results are regularly reviewed by senior
management. Management has determined that the Company operates in a single
business segment. Accordingly, the adoption of SFAS 131 will have no effect on
the consolidated financial statement disclosures.
In June 1998, the FASB issued SFAS No. 133 ("SFAS 133"), "Accounting for
Derivative Instruments and Hedging Activities," which is required to be adopted
in years beginning after June 15, 1999. SFAS 133 permits early adoption as of
the beginning of any fiscal quarter after its issuance. The Company expects to
adopt SFAS 133 effective January 1, 2000. SFAS 133 will require the Company to
recognize all derivatives on the balance sheet at fair value. Derivatives that
are not hedges must be adjusted to fair value through income. If the derivative
is a hedge, depending on the nature of the hedge, changes in the fair value of
derivatives will either be offset against the change in fair value of the hedged
assets, liabilities, or firm commitments through earnings or recognized in other
comprehensive income until the hedged item is recognized in earnings. The
ineffective portion of a derivative's change in fair value will be recognized
immediately in earnings. Based on the Company's derivative positions and their
related fair values at September 30, 1998, the Company estimates that upon
adoption it will report a reduction in other comprehensive income of $52.4
million (assuming that the Company has qualified as a REIT for Federal income
tax purposes).
6
<PAGE>
VENTAS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
NOTE 3--EARNINGS PER SHARE
A computation of earnings per common share for the quarter and five months
ended September 30, 1998 follows (in thousands, except per share amounts):
<TABLE>
<CAPTION>
QUARTER FIVE MONTHS
--------- -----------
<S> <C> <C>
Income from operations......................................... $12,958 $21,156
Extraordinary loss on extinguishment of debt................... (81) (8,051)
------- -------
Net income............................................ $12,877 $13,105
======= =======
Shares used in the computation:
Weighted average shares outstanding--basic
computation................................................ 67,822 67,802
Dilutive effect of outstanding stock options................ 31 46
------- -------
Adjusted weighted average shares outstanding--diluted
computation............................................ 67,853 67,848
======= =======
Earnings per common share:
Basic:
Income from operations................................... $ 0.19 $ 0.31
Extraordinary loss on extinguishment of debt............. - (0.12)
------- -------
Net income............................................ $ 0.19 $ 0.19
======= =======
Diluted:
Income from operations................................... $ 0.19 $ 0.31
Extraordinary loss on extinguishment of debt............. - (0.12)
------- -------
Net income............................................ $ 0.19 $ 0.19
======= =======
</TABLE>
NOTE 4--LONG-TERM DEBT
In connection with the Reorganization Transactions, the Company refinanced
substantially all of its long-term debt. As a result, the Company incurred an
after tax extraordinary loss on extinguishment of debt of $8.1 million for the
five months ended September 30, 1998.
On April 30, 1998, the Company consummated a $1.2 billion bank credit
agreement (the "Bank Credit Agreement") and retained approximately $6.0 million
of prior debt obligations. The Bank Credit Agreement comprises (i) a three year
$250 million revolving credit facility (the "Revolving Credit Facility") priced
at the London Interbank Offered Rate ("LIBOR") plus 2 to 2 1/2%, (ii) a $200
million Term A Loan (the "Term A Loan") payable in various installments over
three years priced at LIBOR plus 2 1/4 to 2 1/2%, (iii) a $350 million Term B
Loan (the "Term B Loan") payable in various installments over five years priced
at LIBOR plus 2 3/4 to 3%, and (iv) a $400 million loan due October 30, 1999 and
priced at LIBOR plus 2 3/4 to 3%.
In connection with the Reorganization Transactions, the Company entered into
an interest rate swap agreement to eliminate the impact of changes in interest
rates on $1 billion of floating rate debt. The agreement expires in varying
amounts through December 2006 and provides for the Company to pay a fixed rate
at 5.985% and receive LIBOR (floating rate). The fair value of the swap
agreement is not recognized in the condensed consolidated financial statements.
See Note 2.
NOTE 5--TRANSACTIONS WITH VENCOR
For the purpose of governing certain of the ongoing relationships between the
Company and Vencor after the Reorganization Transactions and to provide
mechanisms for an orderly transition, the Company and Vencor have entered into
various agreements. The Company believes that the agreements contain terms
which generally are comparable to those which would have been reached in arm's
length negotiations with unaffiliated parties. The most significant agreements
are as follows:
7
<PAGE>
VENTAS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
NOTE 5--TRANSACTIONS WITH VENCOR (CONTINUED)
MASTER LEASE AGREEMENTS
The Company retained substantially all of its real property, buildings and
other improvements (primarily long-term care hospitals and nursing centers) and
leased these to Vencor under four master lease agreements, which set forth the
material terms governing each of the leased properties (individually, a "Master
Lease" and collectively, the "Master Leases").
The leased properties include land, buildings, structures, easements,
improvements on the land and permanently affixed equipment, machinery and other
fixtures relating to the operation of the facilities.
There are multiple bundles of leased properties under each Master Lease with
each bundle containing seven to twelve leased properties. All leased properties
within a bundle have the same base terms, ranging from 10 to 15 years. At the
option of Vencor, all, but not less than all, of the leased properties in a
bundle may be extended for one five-year renewal term beyond the base term at
the then existing rental rate plus 2% per annum if certain lessee revenue
parameters are obtained. At the option of Vencor, all, but not less than all,
of the leased properties in a bundle may be extended for two additional five-
year renewal terms thereafter at the then fair market value rental rate. The
base and renewal terms of each leased property are subject to termination upon
default by either party and certain other conditions described in the Master
Leases.
Except as noted below, upon the occurrence of an event of default under a
Master Lease, the Company may, at its option, exercise the remedies under the
Master Lease on all facilities included within that Master Lease. The remedies
which may be exercised under the Master Lease by the Company, at its option,
include, without limitation, the following: (1) After not less than ten (10)
days' notice to Vencor, terminate the Master Lease, repossess the leased
property and relet the leased property to a third party. If the Company pursues
this remedy, Vencor and/or any other tenant or sublessee or assignee under the
Master Lease (collectively, the "Tenant") must pay to the Company, as liquidated
damages, the net present value of the rent for the balance of the term,
discounted at the prime rate; (2) without terminating the Master Lease,
repossess the leased property and relet the leased property with the Tenant
remaining liable under the Master Lease for all obligations to be performed by
the Tenant thereunder, including the difference, if any, between the rent under
the Master Lease and the rent payable as a result of the reletting of the leased
property; (3) demand that the Tenant purchase either the leased property which
is the subject of the default or all of the leased properties included within
that Master Lease, at the Company's option, for the higher of the fair market
value or the minimum repurchase price, both as defined in the Master Lease; and
(4) any and all other rights and remedies available at law or in equity.
The remedies under the Master Lease may be exercised only with respect to the
facility that is the subject of the default upon the occurrence of any one of
the following events of default: (1) the occurrence of a final non-appealable
revocation of the Tenant's license to operate a facility; (2) the revocation of
certification of a facility for reimbursement under Medicare; or (3) the Tenant
becomes subject to regulatory sanctions at a facility and Tenant fails to cure
such regulatory sanctions within the applicable cure period. Upon the
occurrence of the fifth such event of default under a Master Lease, the Company
is permitted, at its option, to exercise the rights and remedies under the
Master Lease on all facilities included within that Master Lease.
The occurrence of any one of the following events of default constitute an
event of default under all Master Leases permitting the Company, at its option,
to exercise the rights and remedies under the Master Leases simultaneously: (1)
the occurrence of an event of default under the Agreement of Indemnity--Third
Party Leases, (2) the liquidation or dissolution of the Tenant, (3) if the
Tenant files a petition of bankruptcy or a petition for reorganization or
arrangement under the Federal bankruptcy laws, and (4) a petition is filed
against the Tenant under Federal bankruptcy laws and same is not dismissed
within ninety (90) days of its institution.
8
<PAGE>
VENTAS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
NOTE 5--TRANSACTIONS WITH VENCOR (CONTINUED)
MASTER LEASE AGREEMENTS (CONTINUED)
Any notice of the occurrence of an event of default under the Master Lease
which the Company sends to the Tenant must be sent simultaneously to Tenant's
leasehold mortgagee (the "Leasehold Mortgagee"). Prior to terminating a Master
Lease for all or any part of the leased property covered thereunder, the Company
must give the Leasehold Mortgagee thirty (30) days prior written notice.
The Tenant may, with the prior written approval of the Company, sell, assign
or sublet its interest in all or any portion of the leased property under a
Master Lease. The Company may not unreasonably withhold its approval to any
such transfer provided (1) the assignee is creditworthy, (2) the assignee has at
least four years of operational experience, (3) the assignee has a favorable
business and operational reputation, (4) the assignee assumes the Master Lease
in writing, (5) the sublease is subject and subordinate to the terms of the
Master Lease and (6) the Tenant and any guarantor remains primarily liable under
the Master Lease.
The Master Leases are structured as triple-net leases. In addition to the
base annual rent of approximately $222.1 million, plus 2% per annum if certain
lessee revenue parameters are obtained, the Tenant is required to pay all
insurance, taxes, utilities and maintenance related to the leased properties.
DEVELOPMENT AGREEMENT
Under the terms of the Development Agreement, Vencor, if it so desires, will
complete the construction of certain development properties substantially in
accordance with the existing plans and specifications for each such property.
Upon completion of each such development property, the Company has the option to
purchase the development property from Vencor at a purchase price equal to the
amount of Vencor's actual costs in acquiring, developing and improving such
development property prior to the purchase date. If the Company purchases the
development property, Vencor will lease the development property from the
Company. The annual base rent under such a lease will be ten percent (10%) of
the actual costs incurred by Vencor in acquiring and developing the development
property. The other terms of the lease for the development property will be
substantially similar to those set forth in the Master Leases. As of September
30, 1998, the Company had acquired one skilled nursing center under the
Development Agreement for $6.2 million.
PARTICIPATION AGREEMENT
Under the terms and conditions of the Participation Agreement, Vencor has a
right of first offer to become the lessee of any real property acquired or
developed by the Company which is to be operated as a hospital, nursing center
or other healthcare facility, provided that Vencor and the Company negotiate a
mutually satisfactory lease arrangement.
The Participation Agreement also provides, subject to certain terms, that the
Company has a right of first offer to purchase or finance any healthcare related
real property that Vencor determines to sell or mortgage to a third party,
provided that Vencor and the Company negotiate mutually satisfactory terms for
such purchase or mortgage.
The Participation Agreement has a three year term. The Company and Vencor
each have the right to terminate the Participation Agreement in the event of a
change of control.
TRANSITION SERVICES AGREEMENT
The Transition Services Agreement provides that Vencor will provide the
Company with transitional administrative and support services, including but not
limited to finance and accounting, human resources, risk management, legal, and
information systems support through December 31, 1998. The Company pays Vencor
$200,000 per month for services provided under the Transition Services
Agreement.
9
<PAGE>
VENTAS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
NOTE 5--TRANSACTIONS WITH VENCOR (CONTINUED)
TAX ALLOCATION AGREEMENT
The Tax Allocation Agreement provides that the Company will be liable for
taxes of the Company's consolidated group attributable to periods prior to the
Distribution Date with respect to the portion of such taxes attributable to the
property held by the Company after the Distribution Date and Vencor will be
liable for such pre-distribution taxes with respect to the portion of such taxes
attributable to the property held by Vencor after the Distribution Date. The
Tax Allocation Agreement further provides that the Company will be liable for
any taxes attributable to the Reorganization Transactions except that Vencor
will be liable for any such taxes to the extent that Vencor derives certain
future tax benefits as a result of the payment of such taxes. The Company and
its subsidiaries are liable for taxes payable with respect to periods after the
Reorganization Transactions that are attributable to the Company's operations
and Vencor and its subsidiaries are liable for taxes payable with respect to
periods after the Reorganization Transactions that are attributable to Vencor's
operations. If, in connection with a tax audit or filing of an amended return,
a taxing authority adjusts the Company's or Vencor's tax liability with respect
to taxes for which the other party was liable under the Tax Allocation
Agreement, such other party would be liable for the resulting tax assessment or
would be entitled to the resulting tax refund.
AGREEMENT OF INDEMNITY--THIRD PARTY LEASES
In connection with the Reorganization Transactions, the Company assigned its
former third party lease obligations to Vencor. The Company remains primarily
liable on substantially all of the third party lease obligations assigned to
Vencor. Under the terms of the Agreement of Indemnity--Third Party Leases,
Vencor and its subsidiaries have agreed to indemnify and hold the Company
harmless from and against all claims against the Company arising out of the
third party lease obligations assigned by the Company to Vencor. If Vencor is
unable to satisfy the obligations under any third party lease assigned by the
Company to Vencor, then the Company will be liable for the payment and
performance of the obligations under any such third party lease. These leases
have remaining terms ranging from 1 to 29 years. The total aggregate remaining
minimum rental payments under these leases are approximately $201 million.
NOTE 6--RELATED PARTY TRANSACTIONS
The Company loaned, with interest provisions, approximately $3.9 million to
certain executive officers of the Company to finance the income taxes payable by
them as a result of the Reorganization Transactions. The loans are payable over
a ten year period.
NOTE 7--LITIGATION
The following litigation and other matters arose from the Company's operations
prior to the Reorganization Transactions. In connection with the Reorganization
Transactions, Vencor agreed to indemnify the Company against any losses,
including any costs or expenses, it may incur arising out of or in connection
with such legal proceedings and other actions. The indemnification provided by
Vencor also covers losses, including costs and expenses, which may arise from
any future claims asserted against the Company based on the Company's former
healthcare operations. There can be no assurances, however, that Vencor will
have sufficient assets, income and access to financing to enable it to satisfy
its obligations incurred in connection with the Reorganization Transactions. In
connection with its indemnification obligation, Vencor has assumed the defense
of various legal proceedings and other actions. The nursing centers which are
the subject of the legal proceedings and actions described below are now
operated by Vencor.
On April 7, 1998, the Circuit Court of the Thirteenth Judicial Circuit for
Hillsborough County, Florida, issued a temporary injunction order against the
nursing center in Tampa, Florida, previously operated by the Company, which
ordered the nursing center to cease notifying and requiring the discharge of any
resident. The Company discontinued requiring the discharge of any resident
from its Tampa nursing center on April 7, 1998. Following the
10
<PAGE>
VENTAS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
NOTE 7--LITIGATION (CONTINUED)
conduct of a complaint survey at the facility, the State of Florida Agency for
Health Care Administration ("AHCA") imposed a fine of $270,000 for related
regulatory violations. In addition, the Health Care Financing Administration
("HCFA") imposed a fine of $113,000. The Company appealed both the AHCA and
HCFA fines and has settled both appeals. The Company promptly submitted an
acceptable plan of correction at the Tampa nursing center and has been informed
by AHCA that "immediate jeopardy" no longer existed. Threatened termination of
the Tampa nursing center's Medicare provider agreement was reversed.
The Tampa Prosecuting Attorney's office has indicated to the Company that it
is conducting an independent criminal investigation into the circumstances
surrounding the Tampa resident discharges. The Company is cooperating fully
with this investigation.
The Company received notice in June 1998 that the State of Georgia found
regulatory violations with respect to patient discharges, among other things, at
the nursing center in Savannah, Georgia, previously operated by the Company.
The state recommended a Federal fine for these violations of approximately
$510,000 which HCFA has imposed. The Company has appealed this fine.
The HCFA Administrator of the Medicare and Medicaid programs indicated in
April 1998 that facilities previously operated by the Company in other states
also are being monitored. There can be no assurance that HCFA or other
regulators in other jurisdictions will not initiate investigations relating to
these matters or other circumstances, and there can be no assurance that the
results of any such investigation would not have a material adverse effect on
Vencor and, consequently, the Company.
On April 9, 1998, a class action lawsuit captioned Mongiovi et al. v. Vencor,
Inc., et al., Case No. 98-769-CIV-T24E, was filed in the United States District
Court for the Middle District of Florida on behalf of a purported class
consisting of certain residents of the nursing center in Tampa, Florida,
previously operated by the Company, and other residents in the nursing centers
nationwide which were previously operated by the Company. The complaint alleges
various breaches of contract, and statutory and regulatory violations including
violations of Federal and state RICO statutes. The original complaint has been
amended to delineate several purported subclasses. The plaintiffs seek class
certification, unspecified damages, attorneys' fees and costs. The Company is
defending this action vigorously.
A class action lawsuit entitled A. Carl Helwig v. Vencor, Inc., et al., was
filed on December 24, 1997 in the United States District Court for the Western
District of Kentucky (Civil Action No. 3-97CV-8354). The class action claims
were brought by an alleged stockholder of the Company against the Company and
certain executive officers and directors of the Company. The complaint alleges
that the Company and certain current and former executive officers of the
Company during a specified time frame violated Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), by, among
other things, issuing to the investing public a series of false and misleading
statements concerning the Company's current operations and the inherent value of
the Company's common stock. The complaint further alleges that as a result of
these purported false and misleading statements concerning the Company's
revenues and successful acquisitions, the price of the Company's common stock
was artificially inflated. In particular, the complaint alleges that the
Company issued false and misleading financial statements during the first,
second and third calendar quarters of 1997 which misrepresented and understated
the impact that changes in Medicare reimbursement policies would have on the
Company's core services and profitability. The complaint further alleges that
the Company issued a series of materially false statements concerning the
purportedly successful integration of its recent acquisitions and prospective
earnings per share for 1997 and 1998 which the Company knew lacked any
reasonable basis and were not being achieved. The suit seeks damages in an
amount to be proven at trial, pre-judgment and post-judgment interest,
reasonable attorneys' fees, expert witness fees and other costs, and any
extraordinary equitable and/or injunctive relief permitted by law or equity to
assure that the plaintiff has an effective remedy. The Company believes that
the allegations in the complaint are without merit and is defending this action
vigorously.
11
<PAGE>
VENTAS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
NOTE 7--LITIGATION (CONTINUED)
A shareholder derivative suit entitled Thomas G. White on behalf of Vencor,
Inc. and Ventas, Inc. v. W. Bruce Lunsford, et al., Case No. 98CI03669 was filed
in June 1998 in the Jefferson County, Kentucky, Circuit Court. The suit was
brought on behalf of the Company and Vencor against certain current and former
executive officers and directors of the Company and Vencor. The complaint
alleges that the defendants damaged the Company and Vencor by engaging in
violations of the securities laws, engaging in insider trading, fraud and
securities fraud and damaging the reputation of the Company and Vencor. The
plaintiff asserts that such actions were taken deliberately, in bad faith and
constitute breaches of the defendants' duties of loyalty and due care. The
complaint is based on substantially similar assertions to those made in the
class action lawsuit entitled A. Carl Helwig v. Vencor, Inc., et al., discussed
above. The suit seeks unspecified damages, interest, punitive damages,
reasonable attorneys' fees, expert witness fees and other costs, and any
extraordinary equitable and/or injunctive relief permitted by law or equity to
assure that the Company and Vencor have an effective remedy. The Company
believes that the allegations in the complaint are without merit and intends to
defend this action vigorously.
As previously reported in the Company's Form 10-K, a class action lawsuit was
filed on June 19, 1997 in the United States District Court for the District of
Nevada on behalf of a class consisting of all persons who sold shares of
Transitional Hospitals Corporation ("Transitional") common stock during the
period from February 26, 1997 through May 4, 1997, inclusive. The complaint
alleges that Transitional purchased shares of its common stock from members of
the investing public after it had received a written offer to acquire all of
Transitional's common stock and without disclosing that such an offer had been
made. The complaint further alleges that defendants disclosed that there were
"expressions of interest" in acquiring Transitional when, in fact, at that time,
the negotiations had reached an advanced stage with actual firm offers at
substantial premiums to the trading price of Transitional's stock having been
made which were actively being considered by Transitional's Board of Directors.
The complaint asserts claims pursuant to Sections 10(b), 14(e) and 20(a) of the
Exchange Act, and common law principles of negligent misrepresentation and names
as defendants Transitional as well as certain former senior executives and
directors of Transitional. The plaintiff seeks class certification, unspecified
damages, attorneys' fees and costs. On June 18, 1998, the court granted the
Company's motion to dismiss with leave to amend the Section 10(b) claim and the
state law claims for misrepresentation. The court denied the Company's motion to
dismiss the Section 14(e) and Section 20(a) claims. The Company has filed a
motion for reconsideration and intends to defend vigorously this action.
The Company's former subsidiary, American X-Rays, Inc. ("AXR"), is the
defendant in a qui tam lawsuit which was filed in the United States District
Court for the Eastern District of Arkansas and served on the Company on July 7,
1997. The United States Department of Justice has intervened in the suit which
was brought under the Federal Civil False Claims Act. AXR provided portable X-
ray services to nursing facilities (including those operated by the Company) and
other healthcare providers. The Company acquired an interest in AXR when The
Hillhaven Corporation was merged into the Company in September 1995 and
purchased the remaining interest in AXR in February 1996. The suit alleges that
AXR submitted false claims to the Medicare and Medicaid programs. The suit seeks
damages in an amount of not less than $1,000,000, treble damages and civil
penalties. In conjunction with the qui tam action, the United States Attorney's
Office for the Eastern District of Arkansas also is conducting a criminal
investigation into the allegations contained in the qui tam complaint and has
indicted four former employees of AXR. AXR has been informed that it is not a
target of the investigation. The Company is cooperating fully in the
investigation.
12
<PAGE>
VENTAS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
NOTE 7--LITIGATION (CONTINUED)
On June 6, 1997, Transitional announced that it had been advised that it was
the target of a Federal grand jury investigation being conducted by the United
States Attorney's Office for the District of Massachusetts (the "USAO") arising
from activities of Transitional's formerly owned dialysis business. The
investigation involves an alleged illegal arrangement in the form of a
partnership which existed from June 1987 to June 1992 between Damon Corporation
and Transitional. Transitional spun off its dialysis business, now called Vivra
Incorporated, on September 1, 1989. In January 1998, the Company was informed
that no criminal charges would be filed against the Company. The Company has
been added as a defendant to a previously pending qui tam lawsuit against the
other partners related to the partnership's former Medicare billing practices.
The Company intends to defend vigorously the action.
The Company's former subsidiary, TheraTx, Incorporated ("TheraTx"), is a
defendant and counterclaimant in an action pending in state court in
Jacksonville, Florida entitled Highland Pines Nursing Center, Inc., et al. v.
TheraTx, Incorporated, et al. The plaintiffs claim that they are entitled to up
to $40 million in earnout compensation from TheraTx's purchase of several
businesses from the plaintiffs in 1995 and to damages from related tort claims.
TheraTx has asserted fraud counterclaims against the plaintiffs relating to the
original purchase. The trial for this case is scheduled to begin in March 1999.
TheraTx is defending the action vigorously.
The Company has been informed by the U.S. Department of Justice that it is the
subject of ongoing investigations into various aspects of its Medicare billing
practices associated with the Company's former healthcare operations. The
Company is cooperating fully in the investigations.
13
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
BACKGROUND INFORMATION
The Company is a real estate company which owns 219 nursing centers, 46
hospitals and eight personal care facilities in 36 states as of October 15,
1998. The Company anticipates that it will qualify as a REIT for Federal income
tax purposes on January 1, 1999.
On April 30, 1998, the Company changed its name to Ventas, Inc. and refinanced
substantially all of its long-term debt in connection with the spin off of its
healthcare operations through the distribution of the common stock of a new
entity named Vencor in the Reorganization Transactions. The distribution was
effected on May 1, 1998. For financial reporting periods subsequent to the
Reorganization Transactions, the historical financial statements of the Company
were assumed by Vencor and the Company is deemed to have commenced operations on
May 1, 1998. Accordingly, the Company does not have comparable financial
results for prior periods.
RESULTS OF OPERATIONS
Rental income for the quarter was $56.2 million, of which $55.5 million
resulted from leases with Vencor. Income from operations was $13.0 million, or
$0.19 per diluted share. The Company incurred an extraordinary loss for the
third quarter of $81,000, net of income taxes, related to the extinguishment of
debt during the period. Net income for the quarter was $12.9 million, or $0.19
per share.
Funds from operations ("FFO") for the quarter totaled $23.7 million, or $0.35
per diluted share. FFO was computed by adding back depreciation on real estate
assets ($10.7 million) to income from operations. FFO is calculated pursuant to
the definition generally described by the National Association of Real Estate
Investment Trusts.
Rental income for the five month period was $93.5 million, of which $92.4
million was received from Vencor. Income from operations was $21.2 million, or
$0.31 per diluted share. The Company incurred an extraordinary loss for the
period of $8.1 million, net of income taxes, primarily related to the
extinguishment of debt in connection with the Reorganization Transactions. Net
income for the period was $13.1 million, or $0.19 per share. FFO for the period
totaled $39.0 million, or $0.58 per diluted share.
For the five month period, the Company incurred $304,000 for one-time expenses
related to initial application fees as a public company.
On a pro forma basis, excluding the provision for income taxes based upon the
assumption that the Company qualified to be taxed as a REIT on May 1, 1998, FFO
for the quarter would have totaled $31.6 million, or $0.47 per diluted share.
Pro forma income from operations would have been $20.9 million, or $0.31 per
diluted share. Pro forma net income would have been $20.8 million, or $0.31 per
diluted share. For the five month period, pro forma FFO would have totaled
$52.0 million, or $0.77 per diluted share. Pro forma income from operations
would have been $34.1 million, or $0.50 per diluted share. Pro forma net income
would have been $21.1 million, or $0.31 per diluted share. Rental income would
not have changed on a pro forma basis for either the quarter or five month
period.
LIQUIDITY
Cash provided by operations totaled $52.5 million for the five months ended
September 30, 1998.
In connection with the Reorganization Transactions, the Company refinanced
substantially all of its long-term debt. In connection with the refinancing
arrangements, the Company consummated the $1.2 billion Bank Credit Agreement and
retained approximately $6.0 million of prior debt obligations. The Bank Credit
Agreement comprises (i) a three year $250 million Revolving Credit Facility
priced at LIBOR plus 2 to 2 1/2%, (ii) a $200 million Term A Loan payable in
various installments over three years priced at LIBOR plus 2 1/4 to 2 1/2%,
(iii) a
14
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS (CONTINUED)
LIQUIDITY (CONTINUED)
$350 million Term B Loan payable in various installments over five years priced
at LIBOR plus 2 3/4 to 3%, and (iv) a $400 million loan due on October 30, 1999
priced at LIBOR plus 2 3/4 to 3%. The Company intends to refinance the $400
million loan due October 30, 1999, prior to its maturity. For the five months
ended September 30, 1998, the Company paid $12.0 million in financing fees
related to establishing the Bank Credit Agreement.
Management believes that cash flows from operations and available borrowings
under the Revolving Credit Facility are sufficient to meet the expected
liquidity needs of the Company for 1998. Management expects to refinance the
$400 million loan due October 30, 1999 through cash flows from operations,
available borrowings under the Revolving Credit Facility, the issuance of public
or private debt or equity and asset sales, or a combination of the foregoing.
Outstanding debt aggregated $961.5 million at September 30, 1998, of which $27.7
million is payable within the next twelve months. These payments will be paid
primarily from operating cash flows and/or borrowings on the Revolving Credit
Facility. Since the Reorganization Transactions, the Company has repaid
approximately $41 million of debt, primarily from operating cash flows. At
September 30, 1998, available borrowings under the Revolving Credit Facility
approximated $215 million.
In connection with the Reorganization Transactions, the Company entered into
an interest rate swap agreement to eliminate the impact of changes in interest
rates on $1 billion of floating rate debt. The agreement expires in varying
amounts through December 2006 and provides for the Company to pay a fixed rate
at 5.985% and receive LIBOR (floating rate). The fair value of the swap
agreement is not recognized in the condensed consolidated financial statements.
See Note 2 of the Notes to Condensed Consolidated Financial Statements.
In connection with the Reorganization Transactions, the Company sought to
obtain necessary consents to assign its former third party lease obligations to
Vencor. The Company has not and does not expect to receive consents for
assignments on one long-term care hospital and 16 nursing centers. The Company
remains primarily liable on substantially all lease obligations assigned to
Vencor. Vencor has contractually indemnified the Company for these leases. See
Note 5 of the Notes to Condensed Consolidated Financial Statements.
The Company loaned, with interest provisions, approximately $3.9 million to
certain executive officers of the Company to finance the income taxes payable by
them as a result of the Reorganization Transactions. The loans are payable over
a ten year period.
In connection with the Reorganization Transactions, the Company received newly
issued Vencor Series A Non-Voting Convertible Preferred Stock. In connection
with the Reorganization Transactions, the Company sold the preferred stock to
its employees for $17.7 million and used the proceeds to refinance long-term
debt.
In order to qualify as a REIT, the Company must make annual distributions to
its stockholders of at least 95% of its taxable income. Under certain
circumstances, the Company may be required to make distributions in excess of
FFO in order to meet such distribution requirements. In such event, the Company
presently would expect to borrow funds, or to sell assets for cash, to the
extent necessary to obtain cash sufficient to make the distributions required to
retain its qualification as a REIT for Federal income tax purposes. Although
the Company is currently expected to qualify as a REIT on January 1, 1999, it is
possible that future economic, market, legal, tax or other considerations may
cause the Company to fail to qualify as a REIT.
15
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS (CONTINUED)
CAPITAL RESOURCES
Capital expenditures to maintain and improve the leased properties generally
will be incurred by the tenants. Accordingly, the Company does not believe that
it will incur any major expenditures in connection with the leased properties.
After the terms of the leases expire, or in the event that the tenants are
unable to meet their obligations under the leases, the Company anticipates that
any expenditures for which it may become responsible to maintain the leased
properties will be funded by cash flows from operations and, in the case of
major expenditures, through additional borrowings or issuances of equity. To
the extent that unanticipated expenditures or significant borrowings are
required, the Company's liquidity may be affected adversely.
The Company has invested $14.5 million through October 15, 1998 to acquire
healthcare-related properties. The properties purchased include two skilled
nursing centers and eight personal care facilities. One of the properties
acquired was a skilled nursing facility purchased from Vencor under the
Development Agreement for $6.2 million in the third quarter of 1998.
Available sources of capital to finance future growth will include available
borrowings under the Revolving Credit Facility, public or private debt and
equity. Availability and terms of any such issuance will depend upon the market
for such securities and other conditions at such time. There can be no
assurance that such additional financing or capital will be available on terms
acceptable to the Company. The Company may, under certain circumstances, borrow
additional amounts in connection with the acquisition of additional properties,
and as necessary to meet certain distribution requirements imposed on REITs
under the Internal Revenue Code. The Company's liquidity requirements with
respect to future acquisitions may be reduced to the extent that it uses equity
as consideration for such purchases.
YEAR 2000
The year 2000 ("Y2K") issue is a result of computer programs and embedded
computer chips using two digits rather than four digits to define the applicable
year. Without corrective action, computer programs and embedded chips could
potentially recognize the date ending in "00" as the year 1900 rather than 2000,
causing many computer applications to fail or to create erroneous results.
Certain of Vencor's information technology systems ("IT") being used by the
Company and non-IT systems such as building infrastructure components (e.g.
alarm systems, HVAC, computer equipment and phone systems) are affected by the
Y2K issue.
The Company currently outsources all of its information systems support to
Vencor under its Transition Services Agreement through December 31, 1998.
Discussed in detail below is the Y2K program being implemented by Vencor. There
will be no incremental costs to the Company for this program. After 1998, the
Company may continue to outsource its information systems services to Vencor or
may convert to an information system platform that is or will be in compliance
with the Y2K operating requirements. Under the terms of its Master Lease
Agreement, Vencor is responsible for upgrading all building infrastructure
components to be Y2K compliant.
The following discussion describes the Y2K program instituted by Vencor. The
Company has not verified independently the activities of Vencor and there can be
no assurance that Vencor has provided the Company with complete and accurate
information in all instances.
In response to the Y2K issue, Vencor established five teams to address Y2K
issues in the following specific areas: (i) IT software and hardware; (ii)
third party relationships; (iii) facility components; (iv) medical equipment;
and (v) telephone systems. Each team is responsible for all phases of Vencor's
Y2K compliance program for both IT and non-IT systems in its designated area.
16
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS (CONTINUED)
YEAR 2000 (CONTINUED)
Vencor's Y2K compliance program consists of five phases: (i) business
assessment; (ii) inventory and assessment; (iii) remediation and testing; (iv)
implementation and rollout and (v) post-implementation. The business assessment
phase identified potential Y2K issues confronting Vencor. The inventory and
assessment phase consists of a company-wide assessment of all facility systems,
medical devices, and IT software and hardware. During the remediation and
testing phase, Vencor is repairing, upgrading or replacing any non-compliant IT
and non-IT systems. Additionally, Vencor is performing verification and
validation testing of IT and non-IT systems that have been remediated and those
Vencor believes are Y2K compliant. For IT and non-IT systems that are
internally developed, Vencor verifies compliance status directly with the
development staff and performs validation testing to confirm its status. For IT
and non-IT systems that are purchased from third party vendors, Vencor is
requesting written assurances of compliance directly from the vendors. When a
non-compliant system is identified, Vencor will either replace, upgrade or
remediate the system. The implementation and rollout phase involves the
installation of systems and hardware that have been tested and remediated to
Vencor's corporate office and its facilities. The final phase, post-
implementation, involves finalizing the documentation of the Y2K program and any
corrective efforts surrounding date issues associated with the year 2000 being a
leap year. Vencor has employed and will continue to employ external consultants
to assist it through each of the phases.
Vencor has indicated that all phases of the compliance program are on schedule
to meet target completion dates. The following chart depicts Vencor's target
completion dates and the status of each phase as of September 30, 1998:
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
APPROXIMATE PERCENTAGE
PHASE TARGET COMPLETION DATE COMPLETED
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Business Assessment May 1998 100%
- -------------------------------------------------------------------------------------------------------------
Inventory and Assessment December 1998 65%
- -------------------------------------------------------------------------------------------------------------
Remediation and Testing June 1999 30%
- -------------------------------------------------------------------------------------------------------------
Implementation and Rollout November 1999 20%
- -------------------------------------------------------------------------------------------------------------
Post-implementation April 2000 0%
- -------------------------------------------------------------------------------------------------------------
</TABLE>
Vencor's implementation and rollout phase will involve the installation of
Vencor's new financial information and patient accounting systems beginning in
the first quarter of 1999. Substantially all of Vencor's current systems are
being remediated in the event of unanticipated delays in the implementation of
the new systems.
The following chart depicts, by designated area, the percentage of Vencor's IT
and non-IT systems that have been tested and verified Y2K compliant as of
September 30, 1998:
<TABLE>
<CAPTION>
APPROXIMATE PERCENTAGES
DESIGNATED AREA TESTED Y2K COMPLIANT
- -----------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------
<S> <C>
IT Software and Hardware 40%
- -----------------------------------------------------------------------------------------------
Third Party Relationships Assessment in process
- -----------------------------------------------------------------------------------------------
Facility Components Assessment in process
- -----------------------------------------------------------------------------------------------
Medical Equipment 40%
- -----------------------------------------------------------------------------------------------
Telephone Systems 75%
- -----------------------------------------------------------------------------------------------
</TABLE>
For Y2K issues involving third parties, Vencor has separated these issues
between significant business partners (e.g. financial intermediaries and
insurance companies) and Vencor's significant suppliers and vendors (e.g.
medical supplies, utilities, food, etc.). Vencor anticipates that its
assessment of third party compliance will be completed by year end. Vencor also
is developing guidelines for facilities to determine the Y2K compliance status
of local business partners and suppliers.
17
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS (CONTINUED)
YEAR 2000 (CONTINUED)
Vencor has identified three critical risks caused by the Y2K issue: (i)
unanticipated delays in the implementation and rollout of the new financial
information and patient accounting systems; (ii) unanticipated system failures
by third party reimbursement sources including government payers and
intermediaries; and (iii) unanticipated system failures by third party suppliers
and vendors which could affect patient care.
The failure by Vencor to achieve the target completion dates of its compliance
program could cause a business interruption in its financial information and
patient accounting systems. Vencor has instituted a plan to replace
substantially all of its financial information and patient accounting systems
before the year 2000. The new systems configuration and development efforts are
scheduled to be completed during the first quarter of 1999. At that point,
Vencor will begin installing the new systems in its facilities and plans to
complete the installation by November 1999. If the rollout of the new systems
experiences unanticipated delays, Vencor plans to deploy additional
implementation teams to accelerate the process through the use of internal and,
if necessary, external personnel.
Vencor derives a substantial portion of its revenue from the Medicare and
Medicaid programs. Vencor relies on these entities for accurate and timely
reimbursement of claims, often through the use of electronic data interfaces.
Vencor is contacting all of its significant reimbursement sources to determine
their Y2K compliance status in order to make a determination of this potential
risk. Vencor has not received assurance that systems used by Medicare and
Medicaid will be Y2K compliant. The failure of information systems of Federal
and state governmental agencies and other third party payors could impact
negatively Vencor's cash flows, liquidity and financial condition which could
impair its ability to meet the rental payments under the Master Leases.
Vencor also has initiated communications with its critical suppliers and
vendors. Vencor is evaluating information provided by third party vendors and
is conducting independent testing of critical systems and applications. In most
cases, Vencor is relying on information being provided to it by such third
parties. While Vencor is attempting to evaluate the information provided, there
can be no assurance that in all instances accurate information is being
provided.
Vencor is developing contingency plans to address the most critical risks
raised by the Y2K issue. These contingency plans will cover all IT and non-IT
systems for each of the five designated areas. Substantially all critical
financial information and patient accounting systems currently in place are
being remediated to be Y2K compliant in the event of an unanticipated delay in
the implementation of Vencor's new systems. As Vencor contacts third party
reimbursement sources, it is developing contingency plans to receive temporary
reimbursement in the event of system failures by these entities.
Vencor has indicated that its contingency plans also cover failures by
suppliers and vendors. Vencor's data network employs a variety of techniques
such as alternative routing, redundant equipment and dual backup to avoid system
failures. Each Vencor facility has a facility-specific emergency preparedness
manual to handle emergency situations such as a loss of utility services or
supplies. Local emergency plans also are being updated as Y2K related risks
associated with the facilities are identified.
As previously noted, the Company does not expect to incur any incremental
costs as a result of Vencor's Y2K program. The Company estimates the total cost
it will incur to install a new financial system once the Transition Services
Agreement is terminated is less than $100,000.
18
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS (CONTINUED)
YEAR 2000 (CONTINUED)
Management's analysis of the Y2K issues affecting the Company is based on
information currently available and information provided from Vencor. Due to
the inherent uncertainties related to Y2K compliance, there can be no assurance
that the Company has accurately or timely assessed all Y2K issues or that the
estimated costs to remediate the Y2K issues will not be exceeded. If Vencor
is unable to meet its Y2K compliance schedules or incurs costs substantially
higher that its current expectations, Vencor's ability to make rental payments
under the Master Leases could be impaired thereby impacting negatively the
Company's liquidity and results of operations. These and other unforeseen
factors could have a material adverse effect on the Company's financial
condition and results of operations.
OTHER INFORMATION
Various lawsuits and claims arising in the ordinary course of the Company's
prior healthcare business are pending against the Company. In connection with
the Reorganization Transactions, Vencor agreed to indemnify the Company against
any losses from such lawsuits and claims. Resolution of litigation and other
loss contingencies are not expected to have a material adverse effect on the
Company's liquidity, financial position or results of operations. See Note 7 of
the Notes to Condensed Consolidated Financial Statements.
The Bank Credit Agreement contains customary covenants which require, among
other things, maintenance of certain financial ratios and limit amounts of
additional debt and repurchases of common stock. The Company was in compliance
with all such covenants at September 30, 1998.
Beginning in May 1998, the Company adopted the provisions of SFAS 130 which
established new rules for the reporting of comprehensive income and its
components. SFAS 130 requires, among other things, unrealized gains or losses
on available-for-sale securities to be disclosed as other comprehensive income.
The adoption of SFAS 130 had no impact on the Company's net income or
stockholders' equity for the five months ended September 30, 1998.
In June 1997, the FASB issued SFAS 131 which will become effective in December
1998 and requires interim disclosures beginning in 1999. SFAS 131 requires
public companies to report certain information about operating segments,
products and services, the geographic areas in which they operate and major
customers. The operating segments are to be based on the structure of the
enterprise's internal organization whose operating results are reviewed
regularly by senior management. Management has determined that the Company
operates in a single business segment. Accordingly, the adoption of SFAS 131
will have no effect on the consolidated financial statement disclosures.
In June 1998, the FASB issued SFAS 133 which is required to be adopted in
years beginning after June 15, 1999. SFAS 133 permits early adoption as of the
beginning of any fiscal quarter after its issuance. The Company expects to
adopt SFAS 133 effective January 1, 2000. SFAS 133 will require the Company to
recognize all derivatives on the balance sheet at fair value. Derivatives that
are not hedges must be adjusted to fair value through income. If the derivative
is a hedge, depending on the nature of the hedge, changes in the fair value of
derivatives either will be offset against the change in fair value of the hedged
assets, liabilities, or firm commitments through earnings or recognized in other
comprehensive income until the hedged item is recognized in earnings. The
ineffective portion of a derivative's change in fair value will be recognized
immediately in earnings. Based on the Company's derivative positions and their
related fair values at September 30, 1998, the Company estimates that upon
adoption it will report a reduction in other comprehensive income of $52.4
million (assuming that the Company has qualified as a REIT for Federal income
tax purposes).
19
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS (CONTINUED)
OTHER INFORMATION (CONTINUED)
Certain statements contained in this Form 10-Q, including, without limitation,
statements containing the words "believes," "anticipates," "estimates,"
"expects," "will," "may," "might," and words of similar import, and statements
regarding business strategy and plans constitute forward-looking statements
within the meaning of the Private Securities Litigation Perform Act of 1995.
Such forward-looking statements are based on management's current expectations
and involve known and unknown risks, uncertainties and other factors, many of
which the Company is unable to predict or control, that may cause the Company's
actual results or performance to be materially different from any future results
or performance expressed or implied by such forward-looking statements. Such
factors include, among others, the following: general economic and business
conditions; existing laws and governmental regulations and changes in laws and
governmental regulations; legislative proposals for healthcare reform; changes
in Medicare and Medicaid payment levels for its primary tenant; liability and
other claims asserted against the Company; competition; the Company's ability to
implement its business strategy and development plans; the ability to attract or
retain qualified personnel; the Company's significant indebtedness including,
without limitation, its ability to refinance such indebtedness; the Company's
ability to qualify as a REIT for Federal income tax purposes; the availability
of suitable acquisition opportunities and the length of time it takes to
accomplish acquisitions; the availability and terms of capital to fund the
expansion of the Company's business, including the acquisition of additional
facilities; the impact of Y2K issues; and other factors referenced in the
Company's other filings with the Securities and Exchange Commission. The
Company cautions investors that any forward-looking statements made by the
Company are not guarantees of future performance. The Company disclaims any
obligation to update any such factors or to publicly announce the results of any
revisions to any of the forward-looking statements contained herein to reflect
future events or developments.
20
<PAGE>
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Not applicable.
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The following litigation and other matters arose from the Company's operations
prior to the Reorganization Transactions. In connection with the Reorganization
Transactions, Vencor agreed to indemnify the Company against any losses,
including any costs or expenses, it may incur arising out of or in connection
with such legal proceedings and other actions. The indemnification provided by
Vencor also covers losses, including costs and expenses, which may arise from
any future claims asserted against the Company based on the Company's former
healthcare operations. There can be no assurances, however, that Vencor will
have sufficient assets, income and access to financing to enable it to satisfy
its obligations incurred in connection with the Reorganization Transactions. In
connection with its indemnification obligation, Vencor has assumed the defense
of various legal proceedings and other actions. The nursing centers which are
the subject of the legal proceedings and actions described below are now
operated by Vencor.
As previously reported, the Circuit Court of the Thirteenth Judicial Circuit
for Hillsborough County, Florida, issued a temporary injunction order on April
7, 1998 against the nursing center in Tampa, Florida previously operated by the
Company which ordered the nursing center to cease notifying and requiring the
discharge of any resident. The Company discontinued requiring the discharge of
any resident from its Tampa nursing center on April 7, 1998. Following the
conduct of a complaint survey at the facility, AHCA imposed a fine of $270,000
for related regulatory violations. In addition, HCFA imposed a fine of
$113,000. The Company appealed both the AHCA and HCFA fines and has settled
both appeals. The Company promptly submitted an acceptable plan of correction
at the Tampa nursing center and has been informed by AHCA that "immediate
jeopardy" no longer existed. Threatened termination of the Tampa nursing
center's Medicare provider agreement was reversed.
As previously reported, Transitional announced that it had been advised that
it was the target of a Federal grand jury investigation being conducted by the
USAO arising from activities of Transitional's formerly owned dialysis business
on June 6, 1997. The investigation involves an alleged illegal arrangement in
the form of a partnership which existed from June 1987 to June 1992 between
Damon Corporation and Transitional. Transitional spun off its dialysis business,
now called Vivra Incorporated, on September 1, 1989. In January 1998, the
Company was informed that no criminal charges would be filed against the
Company. The Company has been added as a defendant to a previously pending qui
tam lawsuit against the other partners related to the partnership's former
Medicare billing practices. The Company intends to defend vigorously the action.
The Company's former subsidiary, TheraTx, is a defendant and counterclaimant
in an action pending in state court in Jacksonville, Florida entitled Highland
Pines Nursing Center, Inc., et al. v. TheraTx, Incorporated, et al. The
plaintiffs claim that they are entitled to up to $40 million in earnout
compensation from TheraTx's purchase of several businesses from the plaintiffs
in 1995 and to damages from related tort claims. TheraTx has asserted fraud
counterclaims against the plaintiffs relating to the original purchase. The
trial for this case is scheduled to begin in March 1999. TheraTx is defending
the action vigorously.
The Company has been informed by the U.S. Department of Justice that it is the
subject of ongoing investigations into various aspects of its Medicare billing
practices associated with the Company's former healthcare operations. The
Company is cooperating fully in the investigations.
21
<PAGE>
PART II. OTHER INFORMATION (CONTINUED)
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) EXHIBITS:
10.1 Credit Agreement dated as of April 29, 1998 (including exhibits),
among the Ventas Realty, Limited Partnership, NationsBank, N.A., as
Administrative Agent, Morgan Guaranty Trust Company of New York, as
Documentation Agent, the Senior Managing Agents, the Managing Agents
and Co-Agents party thereto, the Banks listed therein, and JP Morgan
Securities, Inc. and NationsBanc Montgomery Securities LLC, as Co-
Arrangers.
10.2 Form of Employment Agreement dated as of July 31, 1998 between
Ventas, Inc. and each of W. Bruce Lunsford and Thomas T. Ladt.
10.3 Employment Agreement dated as of September 21, 1998 between Ventas,
Inc. and Steven T. Downey.
10.4 Employment Agreement dated as of July 31, 1998 between Ventas, Inc.
and T. Richard Riney.
27 Financial Data Schedule (included only in filings submitted under the
Electronic Data Gathering, Analysis, and Retrieval system).
(b) REPORTS ON FORM 8-K:
No reports on Form 8-K were filed during the quarter ended September 30, 1998.
22
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
VENTAS, INC.
Date: November 13, 1998 /s/ W. BRUCE LUNSFORD
- -------------------------- ---------------------------------
W. Bruce Lunsford
Chairman of the Board
and Chief Executive Officer
Date: November 13, 1998 /s/ STEVEN T. DOWNEY
- -------------------------- ---------------------------------
Steven T. Downey
Vice President and Chief
Financial Officer (Principal
Financial Officer)
23
<PAGE>
EXHIBIT 10.1
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
CREDIT AGREEMENT
dated as of April 29, 1998
among
VENTAS REALTY, LIMITED PARTNERSHIP,
NATIONSBANK, N.A.,
as a Bank and as Administrative Agent for the Banks,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as a Bank and as Documentation Agent for the Banks,
BANQUE PARIBAS,
THE BANK OF NOVA SCOTIA,
CREDIT LYONNAIS NEW YORK BRANCH,
CREDIT SUISSE FIRST BOSTON,
FLEET NATIONAL BANK,
THE INDUSTRIAL BANK OF JAPAN, LIMITED, NEW YORK BRANCH,
PNC BANK, NATIONAL ASSOCIATION,
SOCIETE GENERALE,
THE TORONTO-DOMINION BANK,
WACHOVIA BANK, N.A.,
each as a Bank and as a Senior Managing Agent,
ABN AMRO BANK N.V.,
BANK ONE, KENTUCKY, N.A.,
COMERICA BANK,
DEUTSCHE BANK AG, NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH,
NATIONAL CITY BANK OF KENTUCKY,
each as a Bank and as a Managing Agent,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
THE BANK OF NEW YORK,
THE FIRST NATIONAL BANK OF CHICAGO,
U.S. BANK,
UNION BANK OF CALIFORNIA,
each as a Bank and as a Co-Agent
and
THE BANKS LISTED HEREIN,
and
JP MORGAN SECURITIES INC.
AND
NATIONSBANC MONTGOMERY SECURITIES LLC,
as Co-Arrangers
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of April 29, 1998, among VENTAS REALTY, LIMITED
PARTNERSHIP (the "Borrower"), NATIONSBANK, N.A., as a Bank and as Administrative
Agent for the Banks, MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as a Bank and as
Documentation Agent for the Banks, the SENIOR MANAGING AGENTS listed on the
cover page hereof, the MANAGING AGENTS listed on the cover page hereof, the CO-
AGENTS listed on the cover page hereof, the BANKS listed on the signature pages
hereof (the "Banks"), and JP MORGAN SECURITIES INC. and NATIONSBANC MONTGOMERY
SECURITIES LLC as Co-Arrangers.
W I T N E S S E T H:
- - - - - - - - - - -
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. The following terms, as used herein, have
the following meanings:
"Administrative Agent" means NationsBank, N.A. in its capacity as
Administrative Agent for the Banks hereunder, and its successors in such
capacity.
"Administrative Questionnaire" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent (with a copy to the Borrower) duly
completed by such Bank.
"Affiliate" means any Person (other than a Subsidiary) directly or
indirectly controlling, controlled by or under common control with Borrower;
provided, however, that during the period following the spin-off of Vencor,
Inc., common share ownership between Guarantor and Vencor, Inc. shall not be
deemed to make either entity an Affiliate of the other. As used in this
definition, the term "control" means possession, directly or indirectly, of the
power to vote 10% or more of any class of voting securities of a Person or to
direct or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.
<PAGE>
"Agents" means the Administrative Agent and the Documentation Agent.
"Agreement" means this Credit Agreement as the same may from time to time
hereafter be modified, supplemented or amended.
"Annual EBITDA" means, measured as of the last day of each calendar
quarter, an amount equal to (i) total revenues relating to the Guarantor and its
Consolidated Subsidiaries for the previous four consecutive calendar quarters
including the quarter then ended, on an accrual basis with adjustments to remove
the effect of the straight-lining of rents, plus (ii) interest and other income
of the Guarantor and its Consolidated Subsidiaries, including, without
limitation, real estate service revenues, for such period, less (iii) total
operating expenses and other expenses relating to Real Property Assets for such
period (other than interest, taxes, depreciation, amortization, and other non-
cash items), less (iv) total corporate operating expenses (including general
overhead expenses) and other expenses of the Guarantor and its Consolidated
Subsidiaries (other than interest, taxes, depreciation, amortization and other
non-cash items), for such period.
"Applicable Interest Rate" means the lesser of (x) the rate at which the
interest rate applicable to any floating rate Debt could be fixed, at the time
of calculation, by the Borrower entering into an interest rate swap agreement,
and (y) the rate at which the interest rate applicable to such floating rate
Debt is actually capped, at the time of calculation, if the Borrower has entered
into an interest rate cap agreement with respect thereto or if the documentation
for such Debt contains a cap.
"Applicable Lending Office" means, with respect to any Bank, (i) in the
case of its Base Rate Loans, its Domestic Lending Office, and (ii) in the case
of its Euro-Dollar Loans, its Euro-Dollar Lending Office.
"Applicable Margin" means, with respect to each Euro-Dollar Loan and each
Base Rate Loan, the respective percentages per annum determined, at any time,
based on the range into which the Maximum Total Debt Ratio then falls, in
accordance with the table set forth below. Any change in the Maximum Total Debt
Ratio shall occur on the date on which the Guarantor delivers, or was required
to have delivered, the certificate pursuant to Section 5.1(e) hereof, whichever
is earlier, and shall be effective as of the date on which the Maximum Total
Debt Ratio is calculated.
<PAGE>
<TABLE>
<CAPTION>
================================================================================================
Maximum Total Debt Maximum Total Debt Maximum Total Debt
Ratio less than 40%. Ratio equal to or Ratio greater than
greater than 40% but 50%.
less than or equal
to 50%.
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Applicable Base Rate Tranche A: 1.75% Tranche A: 1.75% Tranche A: 2.00%
Margin Tranche B: 1.00% Tranche B: 1.25% Tranche B: 1.50%
Tranche C: 1.25% Tranche C: 1.25% Tranche C: 1.50%
Tranche D: 1.75% Tranche D: 1.75% Tranche D: 2.00%
- ------------------------------------------------------------------------------------------------
Applicable Tranche A: 2.75% Tranche A: 2.75% Tranche A: 3.00%
Euro-Dollar Margin Tranche B: 2.00% Tranche B: 2.25% Tranche B: 2.50%
Tranche C: 2.25% Tranche C: 2.25% Tranche C: 2.50%
Tranche D: 2.75% Tranche D: 2.75% Tranche D: 3.00%
================================================================================================
</TABLE>
"Assignee" has the meaning set forth in Section 9.6(c).
"Bank" means each bank listed on the signature pages hereof, each Assignee
which becomes a Bank pursuant to Section 9.6(c), and their respective
successors.
"Bankruptcy Code" means Title 11 of the United States Code, entitled
"Bankruptcy", as amended from time to time, and any successor statute or
statutes.
"Base Rate" means, for any day, a rate per annum equal to the higher of (i)
the Prime Rate for such day and (ii) the sum of the Federal Funds Rate plus
.50%.
"Base Rate Borrowing" means a Borrowing comprised of Base Rate Loans.
"Base Rate Loan" means a Loan to be made by a Bank as a Base Rate Loan in
accordance with the applicable Notice of Borrowing, Notice of Interest Rate
Election or pursuant to Article VIII.
"Benefit Arrangement" means at any time an employee benefit plan within the
meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and
which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Borrower" means Ventas Realty, Limited Partnership, a Delaware limited
partnership, and its successors.
<PAGE>
"Borrowing" has the meaning set forth in Section 1.3.
"Cash or Cash Equivalents" means (i) cash, (ii) direct obligations of the
United States Government, including, without limitation, treasury bills, notes
and bonds, (iii) interest bearing or discounted obligations of Federal agencies
and Government sponsored entities or pools of such instruments offered by banks
rated AA or better by S&P or Aa2 by Moody's and dealers, including, without
limitation, Federal Home Loan Mortgage Corporation participation sale
certificates, Government National Mortgage Association modified pass-through
certificates, Federal National Mortgage Association bonds and notes, Federal
Farm Credit System securities, (iv) time deposits, domestic and Eurodollar
certificates of deposit, bankers acceptances, commercial paper rated at least A-
1 by S&P and P-1 by Moody's, and/or guaranteed by an entity having an Aa rating
by Moody's, an AA rating by S&P, or better rated credit, floating rate notes,
other money market instruments and letters of credit each issued by banks which
have a long-term debt rating of at least AA by S&P or Aa2 by Moody's, (v)
obligations of domestic corporations, including, without limitation, commercial
paper, bonds, debentures, and loan participations, each of which is rated at
least AA by S&P, and/or Aa2 by Moody's, and/or unconditionally guaranteed by an
AA rating by S&P, an Aa2 rating by Moody's, or better rated credit, (vi)
obligations issued by states and local governments or their agencies, rated at
least MIG-1 by Moody's and/or SP-1 by S&P and/or guaranteed by an irrevocable
letter of credit of a bank with a long-term debt rating of at least AA by S&P or
Aa2 by Moody's, (vii) repurchase agreements with major banks and primary
government securities dealers fully secured by U.S. Government or agency
collateral equal to or exceeding the principal amount on a daily basis and held
in safekeeping, (viii) real estate loan pool participations, guaranteed by an
entity with an AA rating given by S&P or an Aa2 rating given by Moody's, or
better rated credit, and (ix) shares of any mutual fund that has its assets
primarily invested in the types of investments referred to in clauses (i)
through (viii).
"Closing Date" means the date on which the Documentation Agent shall have
received the documents specified in or pursuant to Section 3.1.
"Commitment" means, with respect to each Bank, the amount committed by such
Bank pursuant to this Agreement with respect to any Loans as set forth on the
signature pages hereof, as such amount may be reduced from time to time pursuant
to Sections 2.9 and 2.10.
<PAGE>
"Consolidated Subsidiary" means at any date any Subsidiary or other entity
which is consolidated with the Guarantor or Borrower, as applicable, in
accordance with GAAP.
"Consolidated Tangible Net Worth" means at any date the consolidated
stockholders' equity of the Guarantor (determined on a book basis) less its
consolidated Intangible Assets, all determined as of such date. For purposes of
this definition "Intangible Assets" means with respect to any such intangible
assets, the amount (to the extent reflected in determining such consolidated
stockholders' equity) of (i) all write-ups subsequent to the Closing Date in the
book value of any asset owned by the Borrower or a Consolidated Subsidiary and
(ii) goodwill, patents, trademarks, service marks, trade names, anticipated
future benefit of tax loss carry forwards, copyrights, organization or
developmental expenses and other intangible assets.
"Contingent Obligation" as to any Person means, without duplication, (i)
any contingent obligation of such Person required to be shown on such Person's
balance sheet in accordance with GAAP, and (ii) any obligation required to be
disclosed in the footnotes to such Person's financial statements, guaranteeing
partially or in whole any non-recourse Debt, dividend or other obligation,
exclusive of contractual indemnities (including, without limitation, any
indemnity or price-adjustment provision relating to the purchase or sale of
securities or other assets) and guarantees of non-monetary obligations (other
than guarantees of completion) which have not yet been called on or quantified,
of such Person or of any other Person. "Contingent Obligations" shall not
include those Contingent Obligations set forth on Schedule 5.8 hereof for which
there exists an indemnification by a third party in favor of Guarantor.
"Debt" of any Person means, without duplication, (A) as shown on such
Person's consolidated balance sheet (i) all indebtedness of such Person for
borrowed money or for the deferred purchase price of property and, (ii) all
indebtedness of such Person evidenced by a note, bond, debenture or similar
instrument (whether or not disbursed in full in the case of a construction
loan), (B) the face amount of all letters of credit issued for the account of
such Person and, without duplication, all unreimbursed amounts drawn thereunder,
(C) all Contingent Obligations of such Person, and (D) all payment obligations
of such Person under any interest rate protection agreement (including, without
limitation, any interest rate swaps, caps, floors, collars and similar
agreements) and currency swaps and similar agreements which were not entered
into specifically in connection with Debt set forth in clauses (A), (B) or (C)
hereof. For purposes of this Agreement, Debt (other than Contingent
Obligations) of the Borrower or Guarantor shall be deemed to include only the
Borrower's or Guar-
<PAGE>
antor's pro rata share (such share being based upon the Borrower's or
Guarantor's percentage ownership interest as shown on the Borrower's or
Guarantor's annual audited financial statements) of the Debt of any Person in
which the Borrower or Guarantor, directly or indirectly, owns an interest,
provided that such Debt is nonrecourse, both directly and indirectly, to the
Borrower or Guarantor, as applicable. Notwithstanding anything contained herein
to the contrary, in no event shall "Debt" be deemed to include debt evidenced by
bonds issued by Guarantor to tenants of residential units of New Pond Village in
Walpole, Massachusetts evidencing the obligation to repay at the end of their
tenancies amounts paid by them at the beginning of their tenancies, provided
that the aggregate outstanding principal amount of all bonds referred to in this
clause shall not at any time exceed $35,000,000.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Documentation Agent" means Morgan Guaranty Trust Company of New York, in
its capacity as Documentation Agent for the Banks hereunder, and its successors
in such capacity.
"Domestic Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in New York City and Los Angeles are authorized by
law to close.
"Domestic Lending Office" means, as to each Bank, its office located within
the United States at its address set forth in its Administrative Questionnaire
(or identified in its Administrative Questionnaire as its Domestic Lending
Office) or such other office within the United States as such Bank may hereafter
designate as its Domestic Lending Office by notice to the Borrower and the
Administrative Agent; provided that no Bank shall be permitted to change its
Domestic Lending Office if at the time of such change either (i) pursuant to the
provisions of Section 8.1 or Section 8.2, Borrower would be unable to maintain
any Loans as Euro-Dollar Loans; or (ii) Borrower would be required to make any
payment to such Bank pursuant to the provisions of Section 8.3 or Section 8.4.
"Environmental Affiliate" means any partnership, or joint venture, trust or
corporation in which either a controlling equity interest is owned by the
Borrower, either directly or indirectly or an equity interest is owned by the
Borrower either di-
<PAGE>
rectly or indirectly, of such a nature that the Borrower could be found to be
liable under applicable Environmental Laws.
"Environmental Approvals" means any permit, license, approval, ruling,
variance, exemption or other authorization required under applicable
Environmental Laws.
"Environmental Claim" means, with respect to any Person, any notice, claim,
demand or similar communication (written or oral) by any other Person alleging
potential liability for investigatory costs, cleanup costs, governmental
response costs, natural resources damage, property damage, personal injuries,
fines or penalties arising out of, based on or resulting from (i) the presence,
or release into the environment, of any Material of Environmental Concern at any
location, whether or not owned by such Person or (ii) circumstances forming the
basis of any violation, or alleged violation, of any Environmental Law, in each
case as to which could reasonably be expected to have a Material Adverse Effect.
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to the
environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Material of Environmental
Concern or hazardous wastes into the environment including, without limitation,
ambient air, surface water, ground water, or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, Material of Environmental
Concern or hazardous wastes or the clean-up or other remediation thereof.
"Environmental Report" has the meaning set forth in Section 4.7.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Borrower, the Guarantor, any Subsidiary and all
members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower or any Subsidiary, are treated as a single employer under Section 414
of the Internal Revenue Code.
<PAGE>
"Euro-Dollar Borrowing" has the meaning set forth in Section 1.3.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office, branch or
affiliate located at its address set forth in its Administrative Questionnaire
(or identified in its Administrative Questionnaire as its Euro-Dollar Lending
Office) or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Euro-Dollar Lending Office by notice to the Borrower
and the Administrative Agent; provided that no Bank shall be permitted to change
its Euro-Dollar Lending Office if at the time of such change either (i) pursuant
to the provisions of Section 8.1 or Section 8.2, Borrower would be unable to
maintain any Loans as Euro-Dollar Loans; or (ii) Borrower would be required make
any payment to such Bank pursuant to the provisions of Sections 8.3 or Section
8.4.
"Euro-Dollar Loan" means a Loan to be made by a Bank as a Euro-Dollar Loan
in accordance with the applicable Notice of Borrowing or notice pursuant to
Section 2.2(b) or Notice of Interest Rate Election.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
2.7(b).
"Event of Default" has the meaning set forth in Section 6.1.
"Existing Affiliate Agreements" means those agreements between the
Guarantor and its Affiliates listed on Schedule 5.22 hereof.
"Existing Credit Agreements" means credit agreements relating to (A) 10-
1/8% Senior Subordinate Hillhaven Notes in the remaining amount of $3,300,000,
(B) BGM Enterprises mortgage loan in amount of $1.2 million, (C) Versnick
mortgage in amount of $60,000, and (D) the Pro Data unsecured loan in amount of
$1,500,000.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day;
<PAGE>
provided that (i) if such day is not a Domestic Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the next preceding
Domestic Business Day as so published on the next succeeding Domestic Business
Day, and (ii) if no such rate is so published on such next succeeding Domestic
Business Day, the Federal Funds Rate for such day shall be the average rate
quoted to the Administrative Agent on such day on such transactions as
determined by the Administrative Agent.
"FFO" means "funds from operations," defined to mean net income (or loss)
(computed in accordance with GAAP), excluding gains (or losses) from debt
restructurings and sales of properties, plus depreciation and amortization.
"Federal Reserve Board" means the Board of Governors of the Federal Reserve
System as constituted from time to time.
"FMV Cap Rate" means 10.75%.
"Fronting Bank" shall mean NationsBank, N.A., PNC Bank, National
Association, National City Bank of Kentucky, Bank of America National Trust &
Savings Association and Bank of Nova Scotia or such other Bank which Borrower,
such Bank and the Administrative Agent agree may be a Fronting Bank and which is
designated by Borrower in its Notice of Borrowing as the Bank which shall issue
a Letter of Credit with respect to such Notice of Borrowing.
"G&A Percentage" means the percentage equal to the percentage that general
overhead and administrative expenses of the Guarantor and its Consolidated
Subsidiaries bears to the total revenues of Guarantor and its Consolidated
Subsidiaries, which initially shall be deemed to be 5%, and from and after
September 30, 1999 shall be calculated based upon the preceding four (4) fiscal
quarters.
"GAAP" means generally accepted accounting principles recognized as such in
the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination.
"Governmental Authority" means any Federal, state or local government or
any other political subdivision thereof or agency exercising executive,
legislative, ju-
<PAGE>
dicial, regulatory or administrative functions having jurisdiction over the
Borrower or the Guarantor.
"Group of Loans" means, at any time, a group of Loans consisting of (i) all
Loans which are Base Rate Loans at such time, or (ii) all Loans which are Euro-
Dollar Loans having the same Interest Period at such time; provided that, if a
Loan of any particular Bank is converted to or made as a Base Rate Loan pursuant
to Section 8.2 or 8.4, such Loan shall be included in the same Group or Groups
of Loans from time to time as it would have been in if it had not been so
converted or made.
"Guarantor" means Ventas, Inc., a Delaware corporation and the sole general
partner of the Borrower, and its successors.
"Guaranty" means the Guaranty of Payment, dated as of even date herewith,
by the Guarantor and the Vencor Subsidiaries for the benefit of the
Documentation Agent on behalf of the Banks.
"Indemnitee" has the meaning set forth in Section 9.3(b).
"Interest Period" means: (1) with respect to each Euro-Dollar Borrowing,
the period commencing on the date of such Borrowing or the date of any
conversion or continuation as specified in any Notice of Interest Election with
respect to such Borrowing and ending one, two, three or six months thereafter,
as the Borrower may elect in the applicable Notice of Borrowing or Notice of
Interest Election; provided that:
(a) any Interest Period which would otherwise end on a day which is not
a Euro-Dollar Business Day shall be extended to the next succeeding Euro-
Dollar Business Day unless such Euro-Dollar Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period that would otherwise end after the Maturity
Date shall end on the Maturity Date.
<PAGE>
In addition, if, within thirty (30) days of the date on which an Interest Period
ends, there is a Required Amortization Payment or Tranche D Amortization Payment
due hereunder, then Borrower may elect for that portion of such Euro-Dollar Loan
that will be paid down by such Required Amortization Payment or Tranche D
Amortization Payment, in the applicable Notice of Interest Election, an Interest
Period shorter than one month but in no case less than seven (7) days.
(ii) with respect to each Base Rate Borrowing, the period commencing on
the date of such Borrowing or Notice of Interest Rate Election and ending on the
date on which another Notice of Interest Rate Election is delivered with respect
thereto.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"Investment Grade Rating" means a rating for a Person's senior long-term
unsecured debt of BBB- or better from S&P, and a rating of Baa3 or better from
Moody's, if ratings from both Rating Agencies are obtained.
"Letter(s) of Credit" has the meaning provided in Section 2.2(c).
"Letter of Credit Collateral" has the meaning provided in Section 6.4.
"Letter of Credit Collateral Account" has the meaning provided in Section
6.4.
"Letter of Credit Documents" has the meaning provided in Section 2.17.
"Letter of Credit Usage" means at any time the sum of (i) the aggregate
maximum amount available to be drawn under the Letters of Credit then
outstanding, assuming compliance with all requirements for drawing referred to
therein, and (ii) the aggregate amount of the Borrower's unpaid reimbursement
obligations under this Agreement in respect of the Letters of Credit.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind. For the purposes of this
Agreement, each of the Borrower and any Subsidiary shall be deemed to own
subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
<PAGE>
"Loan" means a loan made by a Bank pursuant to Section 2.1; provided that,
if any such loan or loans (or portions thereof) are combined or subdivided
pursuant to a Notice of Interest Rate Election, the term "Loan" shall refer to
the combined principal amount resulting from such combination or to each of the
separate principal amounts resulting from such subdivision, as the case may be.
"Loan Documents" means this Agreement, the Notes, the Guaranty, the Pledge,
the Letter(s) of Credit, the Letter of Credit Documents, any Subsidiary guaranty
or pledge executed pursuant to Section 5.24 hereof and any related documents.
"London Interbank Offered Rate" has the meaning set forth in Section
2.7(b).
"Margin Stock" shall have the meaning provided such term in Regulation U of
the Federal Reserve Board.
"Master Lease" has the meaning set forth in Section 5.23 hereof.
"Material Adverse Effect" means a material adverse effect upon (i) the
business, operations, properties or assets of the Borrower, the Guarantor and
their Subsidiaries taken as a whole or (ii) the ability of the Borrower, the
Guarantor and their Subsidiaries taken as a whole to perform their obligations
hereunder or under the Guaranty in all material respects, including to pay
interest and principal.
"Material Lease" means, with respect to any Real Property Asset, any lease
entered into by Borrower or any Subsidiary with a third party for more than
15,000 square feet of space affecting such Real Property Asset.
"Material of Environmental Concern" means and includes pollutants,
contaminants, hazardous wastes, and toxic, radioactive, caustic or otherwise
hazardous substances, including petroleum, its derivatives, by-products and
other hydrocarbons, or any substance having any constituent elements displaying
any of the foregoing characteristics.
"Material Plan" means at any time a Plan having aggregate Unfunded
Liabilities in excess of $5,000,000.
"Maturity Date" has the meaning set forth in Section 2.9.
<PAGE>
"Maximum Total Debt Ratio" means the ratio, as of the date of
determination, of (i) the Debt of the Borrower, the Guarantor and their
Consolidated Subsidiaries to (ii) Tangible FMV.
"Minority Holdings" means partnerships, limited liability companies and
corporations held or owned by the Borrower which are not consolidated with the
Borrower on its financial statements.
"Moody's" means Moody's Investors Service, Inc. or any successor thereto.
"Morgan" means Morgan Guaranty Trust Company of New York, in its individual
capacity.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"NationsBank" means NationsBank, N.A., in its individual capacity.
"Net Offering Proceeds" means all cash received by the Borrower or the
Guarantor as a result of the sale of common shares of beneficial interest,
preferred shares of beneficial interest, partnership interests, limited
liability company interests, or other ownership or equity interests in the
Borrower or the Guarantor (or evidence of indebtedness of the Borrower or the
Guarantor convertible into any of the foregoing) less customary costs and
discounts of issuance paid by the Borrower or the Guarantor.
"Net Operating Cash Flow" means, as of any date of determination with
respect to all Real Property Assets, Property Income with respect thereto for
the previous four (4) consecutive quarters, including the quarter then ended,
but less (x) Property Expenses with respect thereto for the previous four (4)
consecutive quarters, including the quarter then ended.
"New Subsidiary" has the meaning set forth in Section 5.24.
"Non-Recourse Debt" means Debt of the Borrower, the Guarantor or any of
their Subsidiaries on a consolidated basis for which the right of recovery of
the obli-
<PAGE>
gee thereof is limited to recourse against the Real Property Assets securing
such Debt (subject to such limited exceptions to the non-recourse nature of such
Debt such as fraud, misappropriation, misapplication and environmental
indemnities, as are usual and customary in like transactions at the time of the
incurrence of such Debt).
"Notes" means, collectively, the promissory notes of the Borrower
evidencing the obligation of the Borrower to repay the Tranche A Loan, the
Tranche B Loans, the Tranche C Loan, and the Tranche D Loan (each substantially
in the form of Exhibit A-1 attached hereto, and in the case of Swing Loans, the
promissory note of the Borrower evidencing the obligation of the Borrower to
repay the Swing Loans (substantially in the form of Exhibit A-2 hereto), and
"Note" means any one of such promissory notes issued hereunder.
"Notice of Borrowing" has the meaning set forth in Section 2.2.
"Notice of Interest Election" has the meaning set forth in Section 2.15(a).
"Obligations" means all obligations, liabilities and indebtedness of every
nature of the Borrower from time to time owing to any Bank under or in
connection with this Agreement or any other Loan Document, including, without
limitation, (i) the outstanding principal amount of the Loans at such time, plus
(ii) the Letter of Credit Usage at such time.
"Outstanding Balance" means the sum of (i) the aggregate outstanding and
unpaid principal balance of all Loans and (ii) the Letter of Credit Usage.
"Parent" means, with respect to any Bank, any Person controlling such Bank.
"Participant" has the meaning set forth in Section 9.6(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Liens" means (a) Liens to secure the performance of statutory
obligations, surety or appeal bonds, performance bonds, completion bonds,
government contracts or other obligations of a like nature, including Liens in
connection with workers' compensation, unemployment insurance and other types of
statutory obligations or to secure the performance of tenders, bids, leases,
contracts (other than for the repayment of Debt) and other similar obligations
incurred in the ordinary course of
<PAGE>
business; (b) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded; provided,
that any reserve or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor; (c) Liens on property of the
Borrower or any Subsidiary thereof in favor of the Federal or any state
government to secure certain payments pursuant to any contract, statute or
regulation; (d) easements (including, without limitation, reciprocal easement
agreements and utility agreements), rights of way, covenants, consents,
reservations, encroachments, variations and zoning and other restrictions,
charges or encumbrances (whether or not recorded), which do not interfere
materially with the ordinary conduct of the business of the Borrower or any
Subsidiary thereof or any lessee under a Material Lease and which do not
materially detract from the value of the property to which they attach or
materially impair the use thereof by the Borrower or any Subsidiary thereof or
any lessee under a Material Lease; (e) statutory Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen or other Liens
imposed by law and arising in the ordinary course of business, for sums not then
due and payable (or which, if due and payable, are being contested in good faith
and with respect to which adequate reserves are being maintained to the extent
required by GAAP); and (f) the interests of lessees and lessors under leases of
real or personal property made in the ordinary course of business which would
not have a Material Adverse Effect.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Pledge" means that certain Pledge and Security Agreement dated as of the
date hereof by the Guarantor and the Borrower in favor of the Documentation
Agent.
<PAGE>
"Prime Rate" means the rate of interest per annum established from time to
time by NationsBank in Charlotte, North Carolina as its prime rate, which rate
may not be the lowest rate of interest charged by NationsBank to its customers.
"Pro Forma Debt Service" means, for any period, the amount determined by
applying a twenty-five (25) year mortgage amortization schedule to the amount of
Loans outstanding under my tranche during the applicable measuring period, using
an assumed annual interest rate equal to the greater of (x) the then-applicable
interest rate for such Loans, or (y) the then-applicable Treasury Rate plus
2.50%, determined on an annualized basis for the applicable measuring period.
"Property Expenses" means, when used with respect to any Real Property
Asset, the costs of maintaining such Real Property Asset which are the
responsibility of the owner thereof and that are not paid directly by the tenant
thereof, including, without limitation, taxes, insurance, repairs and
maintenance, but provided that if such tenant is more than 90 days in arrears in
the payment of base or fixed rent, then such costs will also constitute
"Property Expenses", but excluding depreciation, amortization and interest
costs.
"Property Income" means, when used with respect to any Real Property Asset,
cash rents and other cash revenues received in the ordinary course therefrom,
including, without limitation, revenues from any parking leases and lease
termination fees amortized over the remaining term of the lease for which such
termination fee was received (other than the paid rents and revenues and
security deposits except to the extent applied in satisfaction of tenants'
obligations for rent).
"Proxy Statement" means that certain proxy statement of Guarantor filed
with the Securities and Exchange Commission on March 25, 1998.
"Purchasing Banks" has the meaning set forth in Section 8.6 hereof.
"Qualified Development Property Leases" means leases by Borrower or any of
its Consolidated Subsidiaries to Vencor Operating, Inc. or any of its
Subsidiaries covering the Real Property Assets listed on Exhibit C attached
hereto and made a part hereof, which Real Property Assets Borrower or any of its
Consolidated Subsidiaries will have purchased for no more than 115% of the
purchase price for each such Real Property Asset set forth on Exhibit C, and
which leases provide for (i) a minimum term of at least 12 years, (ii) an annual
rental not less than 90% of the annual rentals set forth on Exhibit C with
respect to the applicable Real Property Assets, (iii) "triple
<PAGE>
net" lease terms with respect to all property related expenses, and (iv)
liquidated damages equal to the net present value (discounted at a factor no
greater than the Prime Rate) of the remaining rent thereunder through the stated
maturity date (without any stated obligation on the part of the landlord to
mitigate damages) in the event of a termination of the lease.
"Real Property Assets" means as of any time, the real property assets owned
directly or indirectly by the Guarantor, the Borrower or their Consolidated
Subsidiaries at such time.
"Recourse Debt" shall mean Debt of the Borrower, the Guarantor or any
Subsidiary that is not Non-Recourse Debt.
"Reference Bank" means the principal London offices of NationsBank.
"Refunded Swing Loan" has the meaning set forth in Section 2.1(e)(ii).
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Release" means any release, spill, emission, leaking, pumping, pouring,
dumping, emptying, deposit, discharge, leaching or migration.
"Required Amortization Payment" has the meaning set forth in Section
2.10(b) hereof.
"Required Banks" means, at any time, Banks having at least fifty-one
percent (51%) of the aggregate amount of the Commitments or, if the Commitments
shall have been terminated, holding Notes evidencing at least fifty-one percent
(51%) of the aggregate unpaid principal amount of the Loans.
"Requirements" means all present and future laws, statutes, codes,
ordinances, orders, judgments, decrees, injunctions, rules, regulations and
requirements of every Governmental Authority having jurisdiction over any Real
Property Asset and all restrictive covenants applicable to any Real Property
Asset.
"Secured Debt" means Debt of a Person which is secured by a Lien.
"Selling Bank" has the meaning set forth in Section 8.6 hereof.
<PAGE>
"Senior Officer" means, with respect to the Guarantor, such entity's
president, vice president, chief financial officer, chief accounting officer,
secretary or treasurer.
"Solvent" means, with respect to any Person, that the fair saleable value
of such Person's assets exceeds the Debts of such Person.
"Subsidiary" means any corporation or other entity of which securities or
other ownership interests representing either (i) ordinary voting power to elect
a majority of the board of directors or other persons performing similar
functions or (ii) a majority of the economic interest therein, are at the time
directly or indirectly owned by the Borrower or Guarantor, as applicable.
"Super-Majority Banks" means, at any time, Banks having at least seventy-
five percent (75%) of the aggregate amount of the Commitments or, if the
Commitments shall have been terminated, holding Notes evidencing at least
seventy-five percent (75%) of the aggregate unpaid principal amount of the
Loans.
"Swing Lender" means NationsBank, N.A., in its capacity as the Swing Lender
under the Swing Loan facility described in Section 2.1(e), and its successors in
such capacity.
"Swing Loan" means a Loan made by the Swing Lender pursuant to Section
2.1(e).
"Swing Loan Commitment" means the lesser of (a) $5,000,000 and (b) the
aggregate amount of the unused Tranche B Commitments, as such amount may be
reduced from time to time pursuant to Section 2.11.
"Swing Loan Refund Amount" has the meaning set forth in Section 2.1(e)(ii).
"S&P" means Standard & Poor's Ratings Services, a division of The McGraw-
Hill Companies, Inc., or any successor thereof.
"Tangible FMV" means the sum of (x) (A) initially, the aggregate value of
the Real Property Assets of the Borrower, Guarantor and their Consolidated
Subsidiaries, as determined by Cushman & Wakefield pursuant to the valuations
thereof dated March 13, 1998, and (B) commencing as of June 30, 1998 through
June 30, 1999, the lesser of (1) the sum of (x) the aggregate value of the Real
Property Assets owned by
<PAGE>
the Borrower, Guarantor and their Consolidated Subsidiaries as of the Closing
Date, as determined by Cushman & Wakefield pursuant to the valuations thereof
dated March 13, 1998, and (y) with respect to all Real Property Assets acquired
by the Borrower, Guarantor and their Consolidated Subsidiaries after the Closing
Date, the quotient of (i) the Net Operating Cash Flow with respect thereto on an
annualized basis, less an amount equal to the product of the G&A Percentage and
such Net Operating Cash Flow, and (ii) the FMV Cap Rate, and (2) the quotient of
Annual EBITDA from the period commencing on the Closing Date through the date of
determination, on an annualized basis, and the FMV Cap Rate, and (C) commencing
as of September 30, 1999, with respect to the sum of (i) those Real Property
Assets owned by the Borrower, Guarantor and their Consolidated Subsidiaries for
a period of not less than four (4) fiscal quarters, the quotient of the Annual
EBITDA with respect thereto, and the FMV Cap Rate, and (ii) with respect to
those Real Property Assets owned by the Borrower, Guarantor and their
Consolidated Subsidiaries for a period of less than four (4) fiscal quarters, an
amount equal to the quotient of (1) the Net Operating Cash Flow with respect
thereto, on an annualized basis, less an amount equal to the product of the G&A
Percentage and such Net Operating Cash Flow, and (2) the FMV Cap Rate, and (y)
Cash or Cash Equivalents of Borrower, Guarantor and their Consolidated
Subsidiaries as of the date of determination.
"Term" has the meaning set forth in Section 2.9.
"Title Company" means a title insurance company of recognized national
standing.
"Title Commitment" means, for each Unencumbered Asset Pool Property, an
ALTA fee or leasehold title commitment or title policy issued by the Title
Company at the time of acquisition by the Borrower, the Guarantor or, if
applicable, a Subsidiary of either.
"Total Debt Service" means, as of the last day of each calendar quarter, an
amount equal to interest (whether accrued, paid or capitalized) actually payable
by Guarantor, Borrower or its Consolidated Subsidiaries on its Debt for the
previous four consecutive quarters including the quarter then ended (or
determined on an annualized basis in the case of Debt outstanding for less than
four quarters).
"Tranche A Bank" means any Bank that has committed to fund a portion of the
Tranche A Loan.
<PAGE>
"Tranche A Loan Commitment" means, with respect to each Bank, the amount
committed by such Bank pursuant to this Agreement with respect to the Tranche A
Loan as set forth on the signature pages hereto, as such amount may be reduced
from time to time pursuant to Sections 2.10 and 2.11.
"Tranche A Loan" means the bridge loan to be made to Borrower for the
purposes set forth in Section 5.16 hereof.
"Tranche A Loan Amount" has the meaning set forth in Section 2.1.
"Tranche A Notes" means the promissory notes of Borrower, each
substantially in the form of Exhibit A-1 hereto, evidencing the obligation of
Borrower to repay the Tranche A Loan, and "Tranche A Note" means any one of such
promissory notes issued hereunder.
"Tranche B Bank" means any Bank that has committed to fund a portion of the
Tranche B Loan.
"Tranche B Loan Commitment" means, with respect to each Bank, the amount
committed by such Bank pursuant to this Agreement with respect to the Tranche B
Loan as set forth on the signature pages hereto, as such amount may be reduced
from time to time pursuant to Sections 2.10 and 2.11.
"Tranche B Loan" means the revolving credit loan or loans to be made to
Borrower for the purposes set forth in Section 5.16 hereof.
"Tranche B Loan Amount" has the meaning set forth in Section 2.1.
"Tranche B Notes" means the promissory notes of Borrower, each
substantially in the form of Exhibit A-1 hereto, evidencing the obligation of
Borrower to repay the Tranche B Loan, and "Tranche B Note" means any one of such
promissory notes issued hereunder.
"Tranche C Bank" means any Bank that has committed to fund a portion of the
Tranche C Loan.
"Tranche C Loan Commitment" means, with respect to each Bank, the amount
committed by such Bank pursuant to this Agreement with respect to the Tranche C
<PAGE>
Loan as set forth on the signature pages hereto, as such amount may be reduced
from time to time pursuant to Sections 2.10 and 2.11.
"Tranche C Loan" means the term loan to be made to Borrower for the
purposes set forth in Section 5.16 hereof.
"Tranche C Loan Amount" has the meaning set forth in Section 2.1.
"Tranche C Notes" means the promissory notes of Borrower, each
substantially in the form of Exhibit A-1 hereto, evidencing the obligation of
Borrower to repay the Tranche C Loan, and "Tranche C Note" means any one of such
promissory notes issued hereunder.
"Tranche D Amortization Payment" has the meaning set forth in Section
2.10(c).
"Tranche D Bank" means any Bank that has committed to fund a portion of the
Tranche D Loan.
"Tranche D Loan Commitment" means, with respect to each Bank, the amount
committed by such Bank pursuant to this Agreement with respect to the Tranche D
Loan as set forth on the signature pages hereto, as such amount may be reduced
from time to time pursuant to Sections 2.10 and 2.11.
"Tranche D Loan" means the term loan to be made to Borrower for the
purposes set forth in Section 5.16 hereof.
"Tranche D Loan Amount" has the meaning set forth in Section 2.1.
"Tranche D Notes" means the promissory notes of Borrower, each
substantially in the form of Exhibit A-1 hereto, evidencing the obligation of
Borrower to repay the Tranche D Loan, and "Tranche D Note" means any one of such
promissory notes issued hereunder.
"Treasury Rate" means, as of any date, a rate equal to the annual yield to
maturity on the U.S. Treasury Constant Maturity Series with a ten (10) year
maturity, as such yield is reported in Federal Reserve Statistical Release H.15
- -- Selected Interest Rates, published most recently prior to the date the
applicable Treasury Rate is being determined. Such yield shall be determined by
straight line linear interpolation be-
<PAGE>
tween the yields reported in Release H.15, if necessary. In the event Release
H.15 is no longer published, the Administrative Agent shall select, in its
reasonable discretion, an alternate basis for the determination of Treasury
yield for U.S. Treasury Constant Maturity Series with ten (10) year maturities.
"Unencumbered Asset Pool Net Operating Cash Flow" means, as of any date of
determination with respect to the Unencumbered Asset Pool Properties, Property
Income with respect thereto for the previous four (4) consecutive quarters,
including the quarter then ended, but less (x) Property Expenses with respect
thereto for the previous four (4) consecutive quarters, including the quarter
then ended (determined on an annualized basis for the applicable measuring
period in the case of Unencumbered Asset Pool Properties owned by the Borrower
or Guarantor or any of their Consolidated Subsidiaries for less than four (4)
consecutive quarters).
"Unencumbered Asset Pool Properties" means, as of any date, the Real
Property Assets listed in Exhibit B attached hereto and made a part hereof, each
of which is open for business and operating and each of which is 100% owned in
fee (or leasehold in the case of assets listed as such on Exhibit B) by the
Borrower or Guarantor or any of their Consolidated Subsidiaries and each of
which is not subject to any Lien (other than Permitted Liens), subject to
adjustment as set forth herein, together with all Real Property Assets which
have become part of the Unencumbered Asset Pool Properties as of such date in
accordance herewith.
"Unencumbered Asset Pool Properties Value" means:
(i) as of the Closing Date, an amount equal to the aggregate value
thereof, as determined by Cushman & Wakefield pursuant to the valuations
thereof, dated March 13, 1998;
(ii) for the period commencing as of June 30, 1998 and ending as of June
30, 1999, an amount equal to the sum of (I) with respect to those
Unencumbered Asset Pool Properties set forth on Exhibit B hereto, an amount
equal to the lesser of (x) the aggregate value thereof, as determined by
Cushman & Wakefield pursuant to the valuations thereof, dated March 13,
1998, and (y) an amount equal to the quotient of (A) Net Operating Cash
Flow with respect to each Unencumbered Asset Pool Property, less an amount
equal to the product of the G&A Percentage and such Net Operating Cash
Flow, and (B) the FMV Cap Rate, and (II) with respect to those Unencumbered
Asset Pool Properties acquired by the Borrower or Guarantor and their
Consolidated
<PAGE>
Subsidiaries after the Closing Date, an amount equal to the quotient of (A)
Net Operating Cash Flow with respect to each Unencumbered Asset Pool
Property, less an amount equal to the product of the G&A Percentage and
such Net Operating Cash Flow, and (B) the FMV Cap Rate; and
(iii) thereafter, (A) with respect to the Unencumbered Asset Pool
Properties owned by the Borrower or Guarantor or any of their Consolidated
Subsidiaries for a period of at least four (4) fiscal quarters, the
quotient of (x) the Unencumbered Asset Pool Net Operating Cash Flow with
respect to each Unencumbered Asset Pool Property less an amount equal to
the product of the G&A Percentage and such Unencumbered Asset Pool Net
Operating Cash Flow and (y) the FMV Cap Rate, and (B) with respect to
Unencumbered Asset Pool Properties owned by the Borrower or Guarantor or
any of their Consolidated Subsidiaries for a period of less than four (4)
fiscal quarters, the quotient of (x) Unencumbered Asset Pool Net Operating
Cash Flow with respect to each Unencumbered Asset Pool Property, on an
annualized basis based upon the Unencumbered Asset Pool Net Operating Cash
Flow for the period of such Person's ownership of the Unencumbered Asset
Pool Property in question less an amount equal to the product of the G&A
Percentage and such Unencumbered Asset Pool Net Operating Cash Flow, and
(y) the FMV Cap Rate.
"Unencumbered Debt Service Coverage Ratio" means, as of any date of
determination, the ratio of Unencumbered Asset Pool Net Operating Cash Flow to
Pro Forma Debt Service.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"United States" means the United States of America, including the States
and the District of Columbia, but excluding its territories and possessions.
<PAGE>
"Unsecured Debt" means Debt not secured by a Lien on any Real Property
Asset.
"Unsecured Debt Ratio" means, as of any date of determination, the ratio of
the aggregate amount of Unsecured Debt of the Borrower, the Guarantor and their
Consolidated Subsidiaries outstanding as of such date of determination, to the
Unencumbered Asset Pool Properties Value as of the date of determination.
"Vencor Subsidiaries" means First Healthcare Corporation, Nationwide Care,
Inc., Vencor Hospitals Illinois, Inc., Vencor Hospitals East, Inc., PersonaCare
of Rhode Island, Inc., Care Venture Partners, L.P., Health Haven Associates,
L.P., Oak Hill Nursing Associates, L.P., Hillhaven/Indiana Partnership, San
Marcos Nursing Home Partnership, St. George Nursing Home L.P., New Pond Village
Associates, Hahnemann Hospital, Inc., and Northwest Healthcare, Inc. and "Vencor
Subsidiary" means any one of the foregoing entities.
Section 1.2 Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with GAAP,
applied on a basis consistent (except for changes concurred in by the Borrower's
independent public accountants) with the most recent audited consolidated
financial statements of the Borrower or Guarantor delivered to the
Administrative Agent and the Banks; provided that, if the Borrower notifies the
Administrative Agent and the Banks that the Borrower wishes to amend any
covenant in Article V to eliminate the effect of any change in GAAP on the
operation of such covenant (or if the Administrative Agent notifies the Borrower
that the Required Banks wish to amend Article V for such purpose), then the
Borrower's compliance with such covenant shall be determined on the basis of
GAAP in effect immediately before the relevant change in GAAP became effective,
until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Banks.
Section 1.3 Types of Borrowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to the Borrower pursuant to
Article II (or a Swing Loan made solely by the Swing Lender) on the same date,
all of which Loans are of the same type (subject to Article VIII) and, except in
the case of Base Rate Loans, have the same Interest Period. Borrowings are
classified for purposes of this Agreement either by reference to the pricing of
Loans comprising such Borrowing (e.g., a "Euro-Dollar Borrowing" is a Borrowing
comprised of Euro-Dollar Loans)
<PAGE>
or by reference to the provisions of Article II under which participation
therein is determined (i.e., a "Borrowing" is a Borrowing under Section 2.1 in
which all Banks participate in proportion to their Commitments, and a Borrowing
is a Swing Borrowing if such Loans are Swing Loans).
ARTICLE II
THE CREDITS
Section 2.1. Commitments to Lend.
(a) Tranche A Loan. Each Tranche A Bank severally agrees, on the
terms and conditions set forth in this Agreement, to make the Tranche A Loan on
the Closing Date to Borrower in an amount such that the aggregate principal
amount of the Tranche A Loan by such Bank at any one time outstanding shall not
exceed the amount of its Tranche A Loan Commitment. The aggregate amount of the
Tranche A Loan to be made hereunder shall not exceed Four Hundred Milli on
Dollars ($400,000,000) (the "Tranche A Loan Amount");
(b) Tranche B Loans. Each Tranche B Bank severally agrees, on the
terms and conditions set forth in this Agreement, to make Tranche B Loans to
Borrower and participate in Letters of Credit issued by the Fronting Bank on
behalf of Borrower pursuant to this Section 2.1(b) from time to time during the
Term in amounts such that the aggregate principal amount of Tranche B Loans by
such Bank at any one time outstanding together with such Bank's pro rata share
of Letter of Credit Usage with respect to Borrower shall not exceed the amount
of its Tranche B Commitment. The aggregate amount of Tranche B Loans to be made
hereunder together with the Letter of Credit Usage with respect to Borrower
shall not exceed at any one time Two Hundred Fifty Million Dollars
($250,000,000) (the "Tranche B Loan Amount"). Each Euro-Dollar Borrowing under
this subsection (b) shall be in an aggregate principal amount of at least
$5,000,000, or an integral multiple of $1,000,000 in excess thereof, and each
Base Rate Borrowing under this subsection (b) shall be in an aggregate principal
amount of at least $1,000,000, or an integral multiple of $100,000 in excess
thereof, and in each case shall be made from the several Banks ratably in
proportion to their respective Tranche B Commitments. Subject to the
limitations set forth herein, any Tranche B Loan amounts repaid may be
reborrowed.
<PAGE>
(c) Tranche C Loan. Each Tranche C Bank severally agrees, on the
terms and conditions set forth in this Agreement, to make the Tranche C Loan on
the Closing Date to Borrower in an amount such that the aggregate principal
amount of the Tranche C Loan by such Bank at any one time outstanding shall not
exceed the amount of its Tranche C Commitment. The aggregate amount of Tranche C
Loans to be made hereunder shall not exceed Two Hundred Million Dollars
($200,000,000) (the "Tranche C Loan Amount").
(d) Tranche D Loan. Each Tranche D Bank severally agrees, on the
terms and conditions set forth in this Agreement, to make the Tranche D Loan on
the Closing Date to Borrower during the Term in an amount such that the
aggregate principal amount of Tranche D Loans by such Bank at any one time
outstanding shall not exceed the amount of its Tranche D Commitment. The
aggregate amount of Tranche D Loans to be made hereunder shall not exceed Three
Hundred Fifty Million Dollars ($350,000,000) (the "Tranche D Loan Amount").
(e) Swing Loans.
(i) Subject to the satisfaction of the conditions
precedent set forth in Section 3.2 hereof, during the Term, the Swing Lender
agrees, on the terms and conditions set forth in this Agreement, to make loans
to the Borrower pursuant to this Section 2.1(e)(i) from time to time in amounts
such that the aggregate principal amount of Swing Loans does not at any time
exceed the Swing Loan Commitment. Each Borrowing under this Section 2.1(e)(i)
shall be in an aggregate principal amount of $1,000,000 or any larger multiple
of $100,000 (except that any such Borrowing may be in the aggregate available
amount of Swing Loans determined in accordance with the immediately preceding
sentence). Within the foregoing limits, the Borrower may borrow under this
Section 2.1(e)(i), repay or, to the extent permitted by Section 2.11, prepay
Swing Loans and reborrow at any time during the Term under this Section
2.1(e)(i).
(ii) Conversion of Swing Loans to Tranche B Loans. The
Swing Lender shall, on behalf of the Borrower (which hereby irrevocably directs
the Swing Lender to act on its behalf), on notice given by the Swing Lender no
later than 1:00 P.M. (Eastern time), on the Domestic Business Day immediately
following the funding of any Swing Loan, request each Tranche B Bank to make,
and each Tranche B Bank hereby agrees to make, a Base Rate Loan, in an amount
(with respect to each Tranche B Bank, its "Swing Loan Refund Amount") equal
to such Tranche B Bank's ratable share of the aggregate Tranche B Commitments
with respect to the aggregate
<PAGE>
principal amount of the Swing Loans (the "Refunded Swing Loans") outstanding on
the date of such notice, to repay the Swing Lender. Unless any of the events
described in clause (f) or (g) of Section 6.1 with respect to the Borrower shall
have occurred and be continuing (in which case the procedures of Section
2.1(e)(iii) shall apply), each Tranche B Bank shall make such Base Rate Loan
available to the Administrative Agent at its address specified in or pursuant to
Section 9.1 in immediately available funds, not later than 1:00 P.M. (Eastern
time), on the Domestic Business Day immediately following the date of such
notice. The Administrative Agent shall pay the proceeds of such Base Rate Loans
to the Swing Lender, which shall immediately apply such proceeds to repay
Refunded Swing Loans. Effective on the day such Base Rate Loans are made, the
portion of the Swing Loans so paid shall no longer be outstanding as Swing
Loans, shall no longer be due as Swing Loans under the Note held by the Swing
Lender, and shall be due as Base Rate Loans under the respective Notes issued to
the Tranche B Banks (including the Swing Lender) in accordance with their
ratable share of the aggregate Commitments. The Borrower authorizes the Swing
Lender to charge the Borrower's accounts with the Administrative Agent (up to
the amount available in each such account) in order to immediately pay the
amount of such Refunded Swing Loans to the extent amounts received from the
Tranche B Banks are not sufficient to repay in full such Refunded Swing Loans.
(iii) Purchase of Participations in Swing Loans. If,
prior to the time Loans would have otherwise been made pursuant to Section
2.1(e)(ii), one of the events described in clause (f) or (g) of Section 6.1 with
respect to the Borrower shall have occurred and be continuing, each Tranche B
Bank shall, on the date such Loans were to have been made pursuant to the notice
referred to in Section 2.1(a)(ii) (the "Refunding Date"), purchase an undivided
participating interest in the Swing Loans in an amount equal to such Tranche B
Bank's Swing Loan Refund Amount. On the Refunding Date, each Tranche B Bank
shall transfer to the Swing Lender, in immediately available funds, such Tranche
B Bank's Swing Loan Refund Amount, and upon receipt thereof the Swing Lender
shall deliver to such Tranche B Bank a Swing Loan participation certificate
dated the date of the Swing Lender's receipt of such funds and in the Swing Loan
Refund Amount of such Tranche B Bank.
(iv) Payments on Participated Swing Loans. Whenever,
at any time after the Swing Lender has received from any Tranche B Bank such
Tranche B Bank's Swing Loan Refund Amount pursuant to Section 2.1(a)(iii), the
Swing Lender receives any payment on account of the Swing Loans in which the
Tranche B Banks have purchased participations pursuant to Section 2.1(a)(iii),
the Swing Lender will promptly distribute to each such Tranche B Bank its
ratable share (determined on
<PAGE>
the basis of the Swing Loan Refund Amounts of all of the Tranche B Banks) of
such payment (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Tranche B Bank's participating
interest was outstanding and funded); provided, however, that in the event that
such payment received by the Swing Lender is required to be returned, such
Tranche B Bank will return to the Swing Lender any portion thereof previously
distributed to it by the Swing Lender.
(v) Obligations to Refund or Purchase Participations in
Swing Loans Absolute. Each Tranche B Bank's obligation to transfer the amount of
a Loan to the Swing Lender as provided in Section 2.1(a)(ii) or to purchase a
participating interest pursuant to Section 2.1(a)(iii) shall be absolute and
unconditional and shall not be affected by any circumstance, including, without
limitation, (i) any set-off, counterclaim, recoupment, defense or other right
which such Tranche B Bank, the Borrower or any other Person may have against the
Swing Lender or any other Person, other than the Swing Lender's gross negligence
or willful misconduct in connection with making any such Swing Loan, (ii) the
occurrence or continuance of a Default or an Event of Default at the time of
such transfer or purchase or the termination or reduction of the Tranche B
Commitments, provided, however, that if the Swing Lender has knowledge of the
continuance of a Default or Event of Default pursuant to receiving a notice of
the occurrence thereof pursuant to Section 6.3 hereof at the time the Swing
Lender makes the Swing Loan, then no Tranche B Bank shall be obligated to
transfer the amount of a Loan to the Swing Lender as provided in Section
2.1(a)(ii) or to purchase a participating interest pursuant to Section
2.1(a)(iii), (iii) any adverse change in the condition (financial or otherwise)
of the Borrower or any other Person, (iv) any breach of this Agreement by the
Borrower, any other Tranche B Bank or any other Person, or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
Section 2.2. Notice of Borrowing. With respect to Tranche B Loans,
the Borrower shall give the Administrative Agent notice (a "Notice of
Borrowing") not later than (A) 12:00 Noon (Eastern Time) (x) on the date of each
Base Rate Borrowing or (y) the third Euro-Dollar Business Day before each Euro-
Dollar Borrowing, or (B) 2:00 P.M. (Eastern Time) on the date of each Borrowing
of a Swing Loan, specifying:
(1) the date of such Borrowing, which shall be a Domestic Business Day
in the case of a Domestic Borrowing or a Euro-Dollar Business Day in the
case of a Euro-Dollar Borrowing,
<PAGE>
(2) the aggregate amount of such Borrowing,
(3) whether the Loans comprising such Borrowing are to be Base Rate
Loans, Swing Loans, or Euro-Dollar Loans,
(4) whether the Loans comprising the Borrowing are to be project loans
and/or acquisition loans,
(5) in the case of a Euro-Dollar Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period,
(6) the portion of such Borrowing that is intended to be used for
working capital purposes, together with the aggregate amount of
Borrowings to date that have been used for working capital purposes, and
(7) that both before and after giving effect to the proposed
Borrowing, no Default or Event of Default has occurred or is continuing.
(b) The Borrower shall give the Administrative Agent notice not later
than 12:00 Noon (Eastern Time) (x) one Domestic Business Day before the Closing
Date or (y) the third Euro-Dollar Business Day before the Closing Date,
specifying:
(1) whether the Loans comprising the Tranche A Borrowing, the
Tranche C Borrowing and the Tranche D Borrowing are to be Base Rate Loans or
Euro-Dollar Loans,
(2) whether the Loans comprising the Tranche A Borrowing, the
Tranche C Borrowing and the Tranche D Borrowing are to be project loans and/or
acquisition loans,
(3) in the case of a Euro-Dollar Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the definition
of Interest Period, and
(4) that no Default or Event of Default has occurred or is
continuing.
(c) Borrower shall give the Administrative Agent, and the designated
Fronting Bank, written notice in the event that it desires to have Letters of
Credit
<PAGE>
(each, a "Letter of Credit") issued hereunder no later than 10:00 a.m., Eastern
Time, at least four (4) Domestic Business Days prior to the date of such
issuance. Each such notice shall specify (i) the designated Fronting Bank, (ii)
the aggregate amount of the requested Letters of Credit, (iii) the individual
amount of each requested Letter of Credit and the number of Letters of Credit to
be issued, (iv) the date of such issuance (which shall be a Domestic Business
Day), (v) the name and address of the beneficiary, (vi) the expiration date of
the Letter of Credit (which in no event shall be later than twelve (12) months
after the issuance of such Letter of Credit or five Domestic Business Days prior
to the Maturity Date of the Tranche B Loan, whichever is earlier), (vii) the
purpose and circumstances for which such Letter of Credit is being issued,
(viii) the terms upon which each such Letter of Credit may be drawn down (which
terms shall not leave any discretion to Fronting Bank) and (ix) the aggregate
amount of all Letters of Credit then outstanding. Each such notice may be
revoked telephonically by the Borrower to the applicable Fronting Bank and the
Administrative Agent any time prior to the date of issuance of the Letter of
Credit by the applicable Fronting Bank, provided such revocation is confirmed in
writing by the Borrower to the Fronting Bank and the Administrative Agent within
one (1) Domestic Business Day by facsimile. No later than 10:00 a.m., Eastern
Time, on the date that is four (4) Domestic Business Days prior to the date of
issuance, the Borrower shall specify a precise description of the documents and
the verbatim text of any certificate to be presented by the beneficiary of such
Letter of Credit, which if presented by such beneficiary prior to the expiration
date of the Letter of Credit would require the Fronting Bank to make a payment
under the Letter of Credit; provided, that the Fronting Bank may, in its
reasonable judgment, require changes in any such documents and certificates only
in conformity with changes in customary and commercially reasonable practice or
law and, provided further, that no Letter of Credit shall require payment
against a conforming draft to be made thereunder on the following Domestic
Business Day that such draft is presented if such presentation is made later
than 10:00 A.M. Eastern Time (except that if the beneficiary of any Letter of
Credit requests at the time of the issuance of its Letter of Credit that payment
be made on the same Domestic Business Day against a conforming draft, such
beneficiary shall be entitled to such a same day draw, provided such draft is
presented to the applicable Fronting Bank no later than 10:00 A.M. Eastern Time
and provided further the Borrower shall have requested to the Fronting Bank and
the Administrative Agent that such beneficiary shall be entitled to a same day
draw). In determining whether to pay on such Letter of Credit, the Fronting Bank
shall be responsible only to determine that the documents and certificates
required to be delivered under the Letter of Credit have been delivered and that
they comply on their face with the requirements of that Letter of Credit.
<PAGE>
Section 2.3. Intentionally Omitted
Section 2.4. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the Administrative
Agent shall promptly notify each Bank of the contents thereof and of such Bank's
share of such Borrowing and such Notice of Borrowing shall not thereafter be
revocable by the Borrower.
(b) Not later than (i) 2:00 P.M. (Eastern Time) on the date of
each Base Rate Borrowing (including, without limitation, each Swing Borrowing)
and (ii) 1:00 P.M. (Eastern Time) on the date of each Euro-Dollar Borrowing,
each Bank (or, in the case of a Swing Loan, the Swing Lender) shall make
available its share of such Borrowing, in Federal or other funds immediately
available in Charlotte, North Carolina, to the Administrative Agent at its
address referred to in Section 9.1. The Administrative Agent will make the funds
so received from the Banks available to the Borrower at the Administrative
Agent's aforesaid address. If the Borrower has requested the issuance of a
Letter of Credit, no later than 12:00 Noon (Eastern Time) on the date of such
issuance as indicated in the notice delivered pursuant to Section 2.2(b), the
Fronting Bank shall issue such Letter of Credit in the amount so requested and
deliver the same to the Borrower with a copy thereof to the Administrative
Agent. Immediately upon the issuance of each Letter of Credit by the Fronting
Bank, such Fronting Bank shall be deemed to have sold and transferred to each
other Bank, and each such other Bank shall be deemed, and hereby agrees, to have
irrevocably and unconditionally purchased and received from the Fronting Bank,
without recourse or warranty, an undivided interest and a participation in such
Letter of Credit, any drawing thereunder, and the obligations of the Borrower
hereunder with respect thereto, and any security therefor or guaranty pertaining
thereto, in an amount equal to such Bank's ratable share thereof (based upon the
ratio its Tranche B Commitment bears to the aggregate of all Tranche B
Commitments). Upon any change in any of the Commitments in accordance herewith,
there shall be an automatic adjustment to such participations to reflect such
changed shares. The Fronting Bank shall have the primary obligation to fund any
and all draws made with respect to such Letter of Credit notwithstanding any
failure of a participating Bank to fund its ratable share of any such draw. The
Administrative Agent will instruct the Fronting Bank to make such Letter of
Credit available to the Borrower and the Fronting Bank shall make such Letter of
Credit available to the Borrower at the Borrower's aforesaid address or
<PAGE>
at such address in the United States as Borrower shall request on the date of
the Borrowing.
(c) Unless the Administrative Agent shall have received notice
from a Bank prior to the date of any Borrowing that such Bank will not make
available to the Administrative Agent such Bank's share of such Borrowing, the
Administrative Agent may assume that such Bank has made such share available to
the Administrative Agent on the date of such Borrowing in accordance with
subsection (b) of this Section 2.4 and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so made
such share available to the Administrative Agent, such Bank and the Borrower
severally agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent, (provided, however, that in the case of any
Swing Loan Borrowing, with respect to the Borrower only, interest thereon shall
commence to accrue only from the date which is one (1) Domestic Business Day
after the date on which the Administrative Agent shall inform the Borrower that
any such Tranche B Bank shall have failed to fund its Swing Loan Refund Amount)
at (i) in the case of the Borrower, a rate per annum equal to the higher of the
Federal Funds Rate and the interest rate applicable thereto pursuant to Section
2.7 and (ii) in the case of such Bank, the Federal Funds Rate. If such Bank
shall repay to the Administrative Agent such corresponding amount, such amount
so repaid shall constitute such Bank's Tranche B Loan included in such Borrowing
for purposes of this Agreement.
Section 2.5. Notes.
(a) The Loans shall be evidenced by the Notes, each of which
shall be payable to the order of each Bank for the account of its Applicable
Lending Office in an amount equal to each such Bank's Commitments.
<PAGE>
(b) Each Bank may, by notice to the Borrower and the
Administrative Agent, request that its Loans of a particular type, including
Swing Loans, be evidenced by a separate Note in an amount equal to the aggregate
unpaid principal amount of such Loans. Each such Note shall be in substantially
the form of Exhibit A-1 hereto, as applicable, and with respect to the Swing
Lender, in the form of Exhibit A-2 hereto, with appropriate modifications to
reflect the fact that it evidences solely Loans of the relevant type. Each
reference in this Agreement to the "Note" of such Bank shall be deemed to refer
to and include any or all of such Notes, as the context may require.
(c) Upon receipt of each Bank's Note, the Administrative Agent
shall forward such Note to such Bank. Each Bank shall record the date, amount,
type and maturity of each Loan made by it and the date and amount of each
payment of principal made by the Borrower with respect thereto, and may, if such
Bank so elects in connection with any transfer or enforcement of its Note,
endorse on the schedule forming a part thereof appropriate notations to evidence
the foregoing information with respect to each such Loan then outstanding;
provided that the failure of any Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Notes. Each Bank is hereby irrevocably authorized by the Borrower so to
endorse its Note and to attach to and make a part of its Note a continuation of
any such schedule as and when required.
(d) There shall be no more than fifteen (15) Euro-Dollar
Borrowings outstanding at any one time pursuant to this Agreement.
Section 2.6. Maturity of Loans. Each Loan shall mature, and the
principal amount thereof shall be due and payable, on the Maturity Date
applicable thereto.
Section 2.7. Interest Rates.
(a) Each Base Rate Loan with respect to each Tranche A Borrowing,
Tranche B Borrowing, Tranche C Borrowing or Tranche D Borrowing, as applicable,
shall bear interest on the outstanding principal amount thereof, for each day
from the date such Loan is made until it is repaid, at a rate per annum equal to
the sum of the Applicable Margin plus the Base Rate for such day. Such interest
shall be payable for each Interest Period on the last day of each calendar month
during such Interest Period.
<PAGE>
(b) Each Swing Loan shall bear interest on the outstanding
principal amount thereof at the rate applicable to Base Rate Loans, and in the
case of any amount of overdue Swing Loan, overdue interest thereon at a rate per
annum for each day equal to the sum of two percent (2%) plus the rate applicable
to Base Rate Loans for such day and shall be payable on the last day of each
calendar month.
(c) Each Euro-Dollar Loan with respect to each Tranche A
Borrowing, Tranche B Borrowing, Tranche C Borrowing or Tranche D Borrowing, as
applicable, shall bear interest on the outstanding principal amount thereof, for
each day during the Interest Period applicable thereto, at a rate per annum
equal to the sum of the Applicable Margin plus the London Interbank Offered Rate
for such day. Such interest shall be payable for each Interest Period on the
last day thereof and, if such Interest Period is longer than three months, at
intervals of three months after the first day thereof.
"London Interbank Offered Rate" means, with respect to any Euro-Dollar Loan
for the Interest Period applicable thereto, the rate of interest per annum
(rounded upwards, if necessary to the nearest 1/100 of 1%) appearing on Telerate
Page 3750 (or any successor page) as the London interbank offered rate for
deposits in Dollars at approximately 11:00 A.M. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to such
Interest Period; provided, however, if more than one rate is specified on
Telerate Page 3750, the applicable rate shall be the arithmetic mean of all such
rates. If, for any reason, such rate is not available, the term "London
Interbank Offered Rate" shall mean, with respect to any Euro-Dollar Loan for the
Interest Period applicable thereto, the rate of interest per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen
LIBO Page as the London interbank offered rate for deposits in Dollars at
approximately 11:00 A.M. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period; provided,
however, if more than one rate is specified on Reuters Screen LIBO Page, the
applicable rate shall be the arithmetic mean of all such rates.
<PAGE>
(d) For so long as any Bank maintains reserves against
"Eurocurrency liabilities" (or any other category of liabilities which includes
deposits by reference to which the interest rate on Euro-Dollar Loans is
determined or any category of extensions of credit or other assets which
includes loans by a non-United States office of such Bank to United States
residents), and as a result the cost to such Bank (or its Euro-Dollar Lending
Office) of making or maintaining its Euro-Dollar Loans is increased, then such
Bank may require Borrower to pay, contemporaneously with each payment of
interest on the Euro-Dollar Loans, additional interest on the related Euro-
Dollar Loan of such Bank at a rate per annum up to but not exceeding the amount
by which (x) (A) the applicable London Interbank Offered Rate divided by (B) one
minus the Euro-Dollar Reserve Percentage exceeds (y) the applicable London
Interbank Offered Rate. Any Bank wishing to require payment of such additional
interest (i) shall so notify Borrower and the Administrative Agent, in which
case such additional interest on the Euro-Dollar Loans of such Bank shall be
payable to such Bank at the place indicated in such notice with respect to each
Interest Period commencing at least three Euro-Dollar Business Days after such
notice is given and (ii) shall furnish to Borrower, at least five (5) Euro-
Dollar Business Days prior to each date on which interest is payable on the
Euro-Dollar Loans, an officer's certificate setting forth the amount to which
such Bank is then entitled under this Section.
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member bank of
the Federal Reserve System in New York City with deposits exceeding five billion
dollars in respect of "Eurocurrency liabilities" (or in respect of any other
category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
any Bank to United States residents). The London Interbank Offered Rate shall
be adjusted automatically on and as of the effective date of any change in the
Euro-Dollar Reserve Percentage.
<PAGE>
(e) In the event that, and for so long as, any Event of Default
shall have occurred and be continuing, the outstanding principal amount of the
Loans, and, to the extent permitted by law, overdue interest in respect of all
Loans as well as other amounts not paid when due hereunder, shall bear interest
at the annual rate equal to the sum of two percent (2%) plus the rate applicable
to Base Rate Loans payable on demand; provided, however, that if an Event of
Default is waived by the applicable Banks in accordance with the terms of this
Credit Agreement then the provisions of this subsection (e) shall be deemed
waived as well.
(f) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall give prompt
notice to the Borrower and the Banks of each rate of interest so determined, and
its determination thereof shall be conclusive in the absence of manifest error.
(g) The Reference Bank agrees to use its best efforts to furnish
quotations to the Administrative Agent as contemplated by this Section. If the
Reference Bank does not furnish a timely quotation, the provisions of Section
8.1 shall apply.
Section 2.8. Fees.
(a) Commitment Fee. During the Term, the Borrower shall pay to
the Administrative Agent for the account of the Tranche B Banks ratably in
proportion to their respective Tranche B Commitments, in arrears on each March
31, June 30, September 30 and December 31 during the Term and on the date any
such commitment is terminated, a commitment fee on the daily average undrawn and
uncancelled Tranche B Commitments less an amount equal to the daily average
outstanding Letter of Credit Usage in any given quarter at the respective
percentages per annum based upon the range into which the Maximum Total Debt
Ratio then falls in accordance with the following table:
- -------------------------------------------------------------------------------
Maximum Total Debt Ratio Applicable Commitment Fee (% per annum)
- -------------------------------------------------------------------------------
less than 40% 0.30%
- -------------------------------------------------------------------------------
equal to or greater than 0.375%
40% but equal
to or less than 50%
- -------------------------------------------------------------------------------
greater than 50% 0.50%
- -------------------------------------------------------------------------------
<PAGE>
(b) Letter of Credit Fee. During the Term, the Borrower shall
pay to the Administrative Agent, for the account of the Tranche B Banks in
proportion to their interests in respective undrawn issued Letters of Credit, a
fee (a "Letter of Credit Fee") in an amount, provided that no Event of Default
shall have occurred and be continuing, equal to a rate per annum equal to the
Applicable Margin with respect to Tranche B Euro-Dollar Loans on the daily
average of such issued and undrawn Letters of Credit, which fee shall be
payable, in arrears, on each December 31, March 31, June 30 and September 30
during the Term. From the occurrence, and during the continuance, of an Event of
Default, such fee shall be increased to be equal to two percent (2%) per annum
plus the Applicable Margin on the daily average of such issued and undrawn
Letters of Credit; provided, however, that if an Event of Default is waived by
the applicable Banks in accordance with the terms of this Credit Agreement then
the provisions of this subsection (b) permitting an increase in the Letter of
Credit Fee shall be deemed waived as well.
(c) Fronting Bank Fee. The Borrower shall pay any Fronting Bank,
for its own account, a fee (a "Fronting Bank Fee") at a rate per annum to be
agreed upon with the applicable Fronting Bank, which fee shall be in addition to
and not in lieu of, the Letter of Credit Fee. The Fronting Bank Fee shall be
payable in arrears on each March 31, June 30, September 30 and December 31
during the Term.
(d) Fees Non-Refundable. All fees set forth in this Section 2.8
shall be non-refundable. The obligation of the Borrower to pay such fees in
accordance with the provisions hereof shall be binding upon the Borrower and
shall inure to the benefit of the Administrative Agent, the Fronting Bank and
the Tranche B Banks regardless of whether any Loans are actually made.
Section 2.9. Mandatory Termination. The term (the "Term") of the
Commitments and the Swing Loan Commitment and Loans hereunder shall terminate
and expire, and the Borrower shall return or cause to be returned all Letters of
Credit to the Fronting Bank and repay all Loans hereunder, as follows (in each
case, the "Maturity Date"):
Loan Maturity Date
Tranche A Loan October 30, 1999
Tranche B Loans/
Letters of Credit/
Swing Loans April 30, 2001
<PAGE>
Tranche C Loan April 30, 2001
Tranche D Loan April 30, 2003
Section 2.10. Mandatory Prepayment.
(a) In the event that an Unencumbered Asset Pool Property is sold,
transferred or released from the restrictions of Section 5.17 hereof, the
Borrower shall, simultaneously with such sale or transfer, prepay the Loans in
such amount as shall be required for the Borrower to remain in compliance with
this Agreement. Notwithstanding the foregoing, a simultaneous like-kind
exchange under Section 1031 of the Internal Revenue Code will not be subject to
the provisions of this Section 2.10(a), provided that the exchanged property has
qualified as an Unencumbered Asset Pool Property. Sale of an Unencumbered Asset
Pool Property in violation of this Section 2.10(a) shall constitute an Event of
Default. Prepayments made under this Section 2.10(a) shall be applied to the
amounts outstanding under the Tranche B Loan and, in the event there are no
amounts outstanding thereunder, then such prepayments shall be applied pro rata
to amounts outstanding under the Tranche A Loan, the Tranche C Loan and the
Tranche D Loan.
(b) In addition to the payments of interest required to be made
hereunder for each Tranche C Loan and Tranche D Loan, Borrower shall pay to the
Administrative Agent for the benefit of the Tranche C Banks and the Tranche D
Banks, an amount equal to (1) $5,000,000 on June 30, 1998, (2) $20,000,000 on
September 30, 1998, and (3) $25,000,000 on December 31, 1998 (each, a "Required
Amortization Payment") in partial prepayment of the Tranche C Loan and the
Tranche D Loan. The Required Amortization Payments shall be applied pro rata to
prepayment of the amounts outstanding under each of the Tranche C Loan and the
Tranche D Loan. Any individual Tranche D Bank may waive application of its pro
rata share of the Required Amortization Payment to the Tranche D Loan by
notifying the Administrative Agent at least thirty (30) days prior to the date
of such Required Amortization Payment, in which event, any such payment shall be
applied by the Administrative Agent to prepayment, pro rata, of amounts
outstanding under the Tranche C Loan.
(c) Commencing January 1, 1999, in addition to the payments of
interest required to be made hereunder with respect to the Tranche D Loan and
the payments required under Section 2.10(b), Borrower shall pay annually to the
Administrative Agent for the benefit of the Tranche D Banks, an amount equal to
one percent (1%) of the original principal amount of the Tranche D Loan Amount
(each, a "Tranche D Amortization Payment"), payment of which amount shall be
made in
<PAGE>
equal quarterly amounts, on the first Business Day of each calendar quarter, on
each January 1, April 1, July 1 and October 1 during the Term, in partial
prepayment of the Tranche D Loan.
(d) In the event the Borrower issues commercial mortgage backed
securities as described in the Proxy Statement with respect to those Real
Property Assets demised under that certain Master Lease identified on Schedule
5.23 hereof, the proceeds of such transaction shall be applied to amounts
outstanding under the Tranche A Loan as of the date of the closing of such
transaction. In the event further prepayments are required under Section 2.10(a)
as a result of such transaction, then such prepayments shall be applied as set
forth in Section 2.10(a) hereof .
Section 2.11. Optional Prepayments.
(a) The Borrower may, upon notice to the Administrative Agent or Swing
Lender, as applicable, not later than 12:00 Noon (Eastern Time) on the date of
prepayment (which notice shall specify whether the Loans so being prepaid
constitute a part of a Tranche A Borrowing, a Tranche B Borrowing, a Tranche C
Borrowing or a Tranche D Borrowing and whether such Loans are acquisition and/or
project Loans), prepay to the Administrative Agent for the account of the
applicable Banks, or the Swing Lender, as applicable, any Base Rate Borrowing or
Swing Loan Borrowing in whole at any time, or from time to time in part in
amounts aggregating One Million Dollars ($1,000,000), or an integral multiple of
One Hundred Thousand Dollars ($100,000) in excess thereof or, if less, the
outstanding principal balance, by paying the principal amount to be prepaid
together with (except in the case of Base Rate Loans and Swing Loans which shall
be paid in accordance with Section 2.7(a)) accrued interest thereon to the date
of prepayment. Each such optional prepayment shall be applied to prepay ratably
the Loans of the applicable several Banks included in such Borrowing.
<PAGE>
(b) Except as provided in Section 8.2, the Borrower may not prepay all
or any portion of the principal amount of any Euro-Dollar Loan prior to the
maturity thereof unless the Borrower shall also pay any applicable expenses
pursuant to Section 2.13. Any such prepayment shall be upon at least three (3)
Euro-Dollar Business Days' notice to the Administrative Agent. Any notice of
prepayment delivered pursuant to this Section 2.11(b) shall set forth the amount
of such prepayment which is applicable to any Loan made for working capital
purposes, as well as whether the Loans so being prepaid constitute a part of a
Tranche A Borrowing, a Tranche B Borrowing, a Tranche C Borrowing or a Tranche D
Borrowing). Each such optional prepayment shall be in amounts aggregating Five
Million Dollars ($5,000,000), or an integral multiple of One Million Dollars
($1,000,000) in excess thereof, or, if less, the outstanding principal balance.
Each such optional prepayment shall be applied to prepay ratably the Loans of
the applicable Banks included.
(c) In the event that any Loans being prepaid in accordance with
Section 2.11(a) or (b) above constitute a Tranche D Loan, then any such
prepayment (i) during the period from the Closing Date through the first
anniversary thereof, shall be in an amount which is equal to 102% of the amount
of such Tranche D Loan being prepaid, in addition to any other amounts which may
then be owing, including pursuant to Section 2.13, (ii) during the period after
the first anniversary of the Closing Date through the date which is the
eighteenth (18th) month anniversary of the Closing Date, shall be in an amount
which is equal to 101% of the amount of such Tranche D Loan being prepaid, in
addition to any other amounts which may then be owing, including pursuant to
Section 2.13, and (iii) during the period from the date which is the eighteen
(18) month anniversary of the Closing Date and thereafter, shall be in an amount
which is equal to 100% of the amount of such Tranche D Loan being repaid, in
addition to any other amounts which may then be owing, including pursuant to
Section 2.13. Notwithstanding anything contained herein to the contrary,
Borrower may, in accordance with the notice provisions set forth in
subparagraphs (a) and (b) above, prepay any Tranche D Loans in whole, or in
part, in the event that Borrower has requested from the Super-Majority Banks and
has been denied a waiver from the restrictions contained in Section 5.14 hereof.
(d) The Borrower may at any time return any undrawn Letter of Credit
to the Fronting Bank in whole, but not in part, and the Fronting Bank shall give
the Administrative Agent and each of the Banks notice of such return.
<PAGE>
(e) The Borrower may at any time and from time to time cancel all or
any part of the Tranche B Commitments in amounts aggregating Ten Million Dollars
($10,000,000), or an integral multiple of One Million Dollars ($1,000,000) in
excess thereof, or Swing Loan Commitments in amounts aggregating $1,000,000, or
an integral multiple of $1,000,000 in excess thereof, by the delivery to the
Administrative Agent and the Banks of a notice of cancellation upon at least
three (3) Domestic Business Days' notice to Administrative Agent, the Banks and
the Swing Lender, whereupon, all or such portion of the Tranche B Commitments
shall terminate as to the Banks, pro rata on the date set forth in such notice
of cancellation (or, in the case of the Swing Loan Commitment, all or such
portion of the Swing Loan Commitment shall terminate as to the Swing Lender on
the date set forth in such notice of cancellation), and, if there are any Loans
or Swing Loans then outstanding in an aggregate amount which exceeds the
aggregate Commitments or Swing Loan Commitment (after giving effect to any such
reduction), the Borrower shall prepay to the Administrative Agent, for the
account of the Banks or the Swing Lender, as applicable, all or such portion of
the Tranche B Loans or Swing Loans outstanding on such date in accordance with
the requirements of Sections 2.11(a) and (b). In no event shall the Borrower be
permitted to cancel Tranche B Commitments for which a Letter of Credit has been
issued and is outstanding unless the Borrower returns (or causes to be returned)
such Letter of Credit to the Fronting Bank. The Borrower shall be permitted to
designate in its notice of cancellation which Loans, if any, are to be prepaid.
(f) Upon receipt of a notice of prepayment or cancellation or a return
of a Letter of Credit pursuant to this Section, the Administrative Agent shall
promptly, and in any event within one (1) Domestic Business Day, notify each
Bank of the contents thereof and of such Bank's ratable share (if any) of such
prepayment or cancellation and such notice shall not thereafter be revocable by
the Borrower.
(g) Any amounts so prepaid pursuant to this Section 2.11 and
attributable to Tranche B Loans may be reborrowed subject to the other terms of
this Agreement. In the event that the Borrower elects to cancel all or any
portion of the Tranche B Commitments pursuant to Section 2.11(f) hereof, such
amounts may not be reborrowed. Any amounts so prepaid pursuant to this Section
2.11 and attributable to Tranche A Loans, Tranche C Loans or Tranche D Loans may
not be reborrowed.
<PAGE>
Section 2.12. General Provisions as to Payments .
(a) The Borrower shall make each payment of principal of, and interest
on, the Loans and of fees hereunder, not later than 1:00 p.m. (Eastern Time) on
the date when due, without regard to any rights of setoff or counterclaim,
recoupment or other deduction, in Federal or other funds immediately available
in Charlotte, North Carolina, to the Administrative Agent at its address
referred to in Section 9.1. The Administrative Agent will distribute to each
Bank its ratable share of each such payment received by the Administrative Agent
and attributable to such Bank's Loans for the account of the Banks on the same
day as received by the Administrative Agent if received by the Administrative
Agent by 2:00 p.m. (Eastern Time), or, if received by the Administrative Agent
after 2:00 p.m. (Eastern Time), on the immediately following Domestic Business
Day. If the Administrative Agent shall fail to distribute to a Bank its ratable
share of a payment on the same day it is received or the immediately following
Domestic Business Day, as applicable in accordance with the immediately
preceding sentence, the Administrative Agent shall pay to such Bank the interest
accrued on such payment at the Federal Funds Rate, commencing on the day the
Administrative Agent should have made the payment to such Bank and ending on the
day prior to the date payment is actually made. Whenever any payment of
principal of, or interest on, the Base Rate Loans or of fees shall be due on a
day which is not a Domestic Business Day, the date for payment thereof shall be
extended to the next succeeding Domestic Business Day. Whenever any payment of
principal of, or interest on, the Euro-Dollar Loans shall be due on a day which
is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case the date for payment
thereof shall be the next preceding Euro-Dollar Business Day. If the date for
any payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
<PAGE>
(b) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Banks
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent that
the Borrower shall not have so made such payment, each Bank shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Bank
together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Administrative Agent, at the Federal Funds Rate.
Section 2.13. Funding Losses. (a) If the Borrower makes any payment
of principal with respect to any Euro-Dollar Loan (pursuant to Article II, VI or
VIII or otherwise, and specifically including any payments made pursuant to
Sections 2.10 or 2.11) on any day other than the last day of the Interest Period
applicable thereto, or if the Borrower fails to borrow, prepay, convert or
continue any Euro-Dollar Loans, after notice has been given to any Bank in
accordance with Section 2.4(a), the Borrower shall reimburse each applicable
Bank for any resulting loss or expense incurred by it (or by an existing
Participant in the related Loan; provided that no Participant shall be entitled
to receive more than the Bank with respect to which such Participant is a
Participant would be entitled to receive under this Section 2.13), including
(without limitation) any loss incurred in obtaining, liquidating or employing
deposits from third parties, but excluding loss of margin for the period after
any such payment or failure to borrow, convert or prepay.
(b) Each Bank wishing to demand compensation pursuant to this Section
shall, within fifteen Domestic Business Days after the relevant payment or
conversion or failure to borrow, prepay, convert or continue occurs, notify the
Administrative Agent that it demands such compensation and deliver to the
Administrative Agent a certificate as to the amount of compensation which such
Bank is entitled to receive pursuant to subsection (a) of this Section, showing
the calculation thereof in reasonable detail. Such certificate shall be
conclusive in the absence of manifest error. Promptly after the end of such
period of fifteen Domestic Business Days, the Administrative Agent shall notify
Borrower of all demands for such compensation received by it during such period
and deliver to Borrower copies of the supporting certificates received by it
from the Banks. Within 15 days thereafter, Borrower shall pay to the
Administrative Agent the aggregate amount properly demanded by the
<PAGE>
Banks pursuant to this Section and, upon receipt thereof, the Administrative
Agent shall distribute such amount to the Banks entitled thereto.
Section 2.14. Computation of Interest and Fees. Interest based on the
Prime Rate and all commitment fees hereunder shall be computed on the basis of a
year of 365 days (or 366 days in a leap year) and paid for the actual number of
days elapsed (including the first day but excluding the last day). All other
interest and Letter of Credit Fees shall be computed on the basis of a year of
360 days and paid for the actual number of days elapsed (including the first day
but excluding the last day).
Section 2.15. Method of Electing Interest Rates.
(a) The Loans included in each Borrowing shall bear interest initially
at the type of rate specified by the Borrower in the applicable Notice of
Borrowing or notice delivered pursuant to Section 2.2(b). Thereafter, the
Borrower may from time to time elect to change or continue the type of interest
rate borne by each Group of Loans (subject in each case to the provisions of
Article VIII and except for any Swing Loans), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect
to convert such Loans to Euro-Dollar Loans as of any Euro-Dollar
Business Day;
(ii) if such Loans are Euro-Dollar Loans, the Borrower may elect
to convert such Loans to Base Rate Loans or elect to continue such
Loans as Euro-Dollar Loans for an additional Interest Period, in each
case effective on the last day of the then current Interest Period
applicable to such Loans.
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Administrative Agent not later than 12:00 Noon (Eastern
Time) at least three (3) Euro-Dollar Business Days before the conversion or
continuation selected in such notice is to be effective (unless the relevant
Loans are to be continued as Base Rate Loans, in which case such notice shall be
delivered to the Administrative Agent no later than 12:00 Noon (Eastern Time) on
the Domestic Business Day on which such continuation is to be effective). A
Notice of Interest Rate Election may, if it so specifies, apply to only a
portion of the aggregate principal amount of the relevant Group of Loans;
provided that (i) such portion is allocated ratably among the Loans comprising
such Group, (ii) the portion to which such notice applies, and the
<PAGE>
remaining portion to which it does not apply, are each $5,000,000 or any larger
multiple of $1,000,000 (if such portion is comprised of Euro-Dollar Loans) or at
least $1,000,000 or any larger multiple of $100,000 (if such portion is
comprised on Base Rate Loans), (iii) there shall be no more than fifteen (15)
Borrowings comprised of Euro-Dollar Loans outstanding at any time under this
Agreement, (iv) no Loan may be continued as, or converted into, a Euro-Dollar
Loan when any Event of Default has occurred and is continuing, and (v) no
Interest Period shall extend beyond the applicable Maturity Date.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such
notice applies;
(ii) the date on which the conversion or continuation selected
in such notice is to be effective, which shall comply with the applicable
clause of subsection (a) above;
(iii) if the Loans comprising such Group are to be converted, the
new type of Loans and, if such new Loans are Euro-Dollar Loans, the
duration of the initial Interest Period applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans for
an additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Administrative Agent shall notify
each Bank on the same day as it receives such Notice of Interest Rate Election
of the contents thereof and such notice shall not thereafter be revocable by the
Borrower. If the Borrower fails to deliver a timely Notice of Interest Rate
Election to the Administrative Agent for any Group of Euro-Dollar Loans, such
Loans shall be converted into Base Rate Loans on the last day of the then
current Interest Period applicable thereto.
Section 2.16. Letters of Credit. (a) Subject to the terms contained in
this Agreement and the other Loan Documents, upon the receipt of a notice in
accordance
<PAGE>
with Section 2.2(c) requesting the issuance of a Letter of Credit, the Fronting
Bank shall issue a Letter of Credit or Letters of Credit in such form as is
reasonably acceptable to the Borrower and in an amount or amounts equal to the
amount or amounts requested by the Borrower.
(b) The Letter of Credit Usage shall be no more than Twenty-Five
Million Dollars ($25,000,000) at any one time.
(c) In the event of any request for a drawing under any Letter of
Credit by the beneficiary thereunder, the Fronting Bank shall endeavor to notify
the Borrower and the Administrative Agent (and the Administrative Agent shall
endeavor to notify each Bank thereof) on or before the date on which the
Fronting Bank intends to honor such drawing, and, except as provided in this
subsection (c), the Borrower shall reimburse the Fronting Bank, in an amount
equal to the amount of such drawing, in immediately available funds, before 3:00
P.M. (Eastern Time) (x) if such Fronting Bank notifies Borrower of such drawing
before 11:00 A.M. (Eastern Time) on such date or (y) on the date such notice is
given, if such notice is given after the date of such drawing; provided that any
notice given to Borrower after 11:00 A.M. (Eastern Time) on any day shall be
deemed for purposes of the foregoing clause (y) to have been given on the next
succeeding Domestic Business Day. Notwithstanding anything contained herein to
the contrary, however, unless the Borrower shall have notified the
Administrative Agent, and the Fronting Bank prior to 11:00 a.m. (Eastern Time)
on the Domestic Business Day immediately prior to the date of such drawing that
the Borrower intends to reimburse the Fronting Bank for the amount of such
drawing with funds other than the proceeds of the Loans, the Borrower shall be
deemed to have timely given a Notice of Borrowing pursuant to Section 2.2 to the
Administrative Agent, requesting a Borrowing of Base Rate Loans on the date on
which such drawing is honored and in an amount equal to the amount of such
drawing. Each Bank (other than the Fronting Bank) shall, in accordance with
Section 2.4(b), make available its share of such Borrowing to the Administrative
Agent, the proceeds of which shall be applied directly by the Administrative
Agent to reimburse the Fronting Bank for the amount of such draw. In the event
that any such Bank fails to make available to the Fronting Bank the amount of
such Bank's participation on the date of a drawing, the Fronting Bank shall be
entitled to recover such amount on demand from such Bank together with interest
at the Federal Funds Rate commencing on the date such drawing is honored.
(d) If, after the date hereof, any change in any law or regulation or
in the interpretation the reof by any court or administrative or governmental
authority
<PAGE>
charged with the administration thereof shall either (i) impose, modify or deem
applicable any reserve, special deposit or similar requirement against letters
of credit issued by, or assets held by, or deposits in or for the account of, or
participations in any letter of credit, upon any Bank (including the Fronting
Bank) or (ii) impose on any Bank any other condition regarding this Agreement or
such Bank (including the Fronting Bank) as it pertains to the Letters of Credit
or any participation therein and the result of any event referred to in the
preceding clause (i) or (ii) shall be to increase, by an amount deemed by the
Fronting Bank or such Bank to be material, the cost to the Fronting Bank or any
Bank of issuing or maintaining any Letter of Credit or participating therein
then the Borrower shall pay to the Fronting Bank or such Bank, within 15 days
after written demand by such Bank (with a copy to the Administrative Agent),
which demand shall be accompanied by a certificate showing, in reasonable
detail, the calculation of such amount or amounts, such additional amounts as
shall be required to compensate the Fronting Bank or such Bank for such
increased costs or reduction in amounts received or receivable hereunder.
(e) The Borrower hereby agrees to protect, indemnify, pay and save
the Fronting Bank and the Banks harmless from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and expenses (including
reasonable attorneys' fees and disbursements) which the Fronting Bank or the
Banks may incur or be subject to as a result of (i) the issuance of the Letters
of Credit, other than as a result of the gross negligence or willful misconduct
of the Fronting Bank or (ii) the failure of the Fronting Bank to honor a drawing
under any Letter of Credit as a result of any act or omission, whether rightful
or wrongful, of any present or future de jure or de facto government or
Governmental Authority (collectively, "Governmental Acts"), other than as a
result of the gross negligence or willful misconduct of the Fronting Bank. As
between the Borrower, the Fronting Bank and the Banks, the Borrower assumes all
risks of the acts and omissions of, or misuses of, the Letters of Credit issued
by the Fronting Bank, by the beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, the Fronting Bank shall not
be responsible (i) for the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any party in connection with the
application for and issuance of such Letters of Credit, even if it should in
fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) for the validity or insufficiency of any instrument
transferring or assigning or purporting to transfer or assign any such Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason; (iii) for
failure of the beneficiary of any such Letter of Credit to comply fully with
conditions required in order to draw upon such Letter of Credit; (iv) for
errors,
<PAGE>
omissions, interruptions or delays in transmission or delivery of any message,
by mail, cable, telegraph, telex, facsimile transmission, or otherwise; (v) for
errors in interpretation of any technical terms; (vi) for any loss or delay in
the transmission or otherwise of any documents required in order to make a
drawing under any such Letter of Credit or of the proceeds thereof; (vii) for
the misapplication by the beneficiary of any such Letter of Credit of the
proceeds of such Letter of Credit; and (viii) for any consequence arising from
causes beyond the control of the Fronting Bank, including any Government Acts,
in each case other than as a result of the gross negligence or willful
misconduct of the Fronting Bank. None of the above shall affect, impair or
prevent the vesting of the Fronting Bank's rights and powers hereunder.
(f) If the Fronting Bank or the Administrative Agent is required at
any time, pursuant to any bankruptcy, insolvency, liquidation or reorganization
law or otherwise, to return to the Borrower any reimbursement by the Borrower of
any drawing under any Letter of Credit, each Bank shall pay to the Fronting Bank
or the Administrative Agent, as the case may be, its share of such payment, but
without interest thereon unless the Fronting Bank or the Administrative Agent is
required to pay interest on such amounts to the person recovering such payment,
in which case with interest thereon, computed at the same rate, and on the same
basis, as the interest that the Fronting Bank or the Administrative Agent is
required to pay.
(g) The Fronting Bank shall furnish to the Administrative Agent upon
request such information as the Administrative Agent shall reasonably request in
order to calculate (i) Letter of Credit Usage existing from time to time and
(ii) the amount of any fee payable for the account of the Banks under Section
2.08(b).
Section 2.17. Letter of Credit Usage Absolute. The obligations of the
Borrower under this Agreement in respect of any Letter of Credit shall be
unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement (as the same may be amended from time to time) and any
Letter of Credit Documents (as hereinafter defined) under all circumstances,
including, without limitation, to the extent permitted by law, the following
circumstances:
(a) any lack of validity or enforceability of any Letter of Credit or
any other agreement or instrument relating thereto (collectively, the "Letter of
Credit Documents") or any Loan Document;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the obligations of the Borrower in respect of the
Letters of
<PAGE>
Credit or any other amendment or waiver of or any consent by the Borrower to
departure from all or any of the Letter of Credit Documents or any Loan
Document; provided, that the Fronting Bank shall not consent to any such change
or amendment unless previously consented to in writing by the Borrower;
(c) any exchange, release or non-perfection of any collateral, or any
release or amendment or waiver of or consent to departure from any guaranty, for
all or any of the obligations of the Borrower in respect of the Letters of
Credit;
(d) the existence of any claim, set-off, defense or other right that
the Borrower may have at any time against any beneficiary or any transferee of a
Letter of Credit (or any Persons for whom any such beneficiary or any such
transferee may be acting), the Administrative Agent, the Fronting Bank or any
Bank (other than a defense based on the gross negligence or willful misconduct
of the Administrative Agent, the Fronting Bank or such Bank) or any other
Person, whether in connection with the Loan Documents, the transactions
contemplated hereby or by the Letters of Credit Documents or any unrelated
transaction;
(e) any draft or any other document presented under or in connection
with any Letter of Credit or other Loan Document proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect; provided, that payment by the
Fronting Bank under such Letter of Credit against presentation of such draft or
document shall not have constituted gross negligence or willful misconduct of
the Fronting Bank;
(f) payment by the Fronting Bank against presentation of a draft or
certificate that does not comply with the terms of the Letter of Credit;
provided, that such payment shall not have constituted gross negligence or
willful misconduct of the Fronting Bank; and
(g) any other circumstance or happening whatsoever other than the
payment in full of all obligations hereunder in respect of any Letter of Credit
or any agreement or instrument relating to any Letter of Credit, whether or not
similar to any of the foregoing, that might otherwise constitute a defense
available to, or a discharge of, the Borrower; provided, that such other
circumstance or happening shall not have been the result of gross negligence or
willful misconduct of the Fronting Bank.
<PAGE>
ARTICLE III
CONDITIONS
Section 3.1. Closing. The closing hereunder shall occur on the date (the
"Closing Date") when each of the following conditions is satisfied, each
document to be dated the Closing Date unless otherwise indicated:
(a) the Borrower shall have executed and delivered to the
Documentation Agent a Tranche A Note for the account of each Tranche A Bank
dated on or before the Closing Date complying with the provisions of Section
2.5;
(b) the Borrower shall have executed and delivered to the
Documentation Agent a Tranche B Note for the account of each Tranche B Bank
dated on or before the Closing Date complying with the provisions of Section
2.5;
(c) the Borrower shall have executed and delivered to the
Documentation Agent a Tranche C Note for the account of each Tranche C Bank
dated on or before the Closing Date complying with the provisions of Section
2.5;
(d) the Borrower shall have executed and delivered to the
Documentation Agent a Tranche D Note for the account of each Tranche D Bank
dated on or before the Closing Date complying with the provisions of Section
2.5;
(e) the Borrower shall have executed and delivered to the
Documentation Agent a duly executed original of this Agreement;
(f) the Guarantor and all parties named in the Guaranty
shall have executed and delivered to the Documentation Agent a duly executed
original of the Guaranty;
(g) The Guarantor and the Borrower shall have executed and
delivered to the Documentation Agent a duly executed original of the Pledge;
(h) the Documentation Agent shall have received an opinion
of Sullivan & Cromwell, counsel for the Borrower acceptable to the
Administrative Agent, the Banks and their counsel;
<PAGE>
(i) the Documentation Agent shall have received all
documents the Documentation Agent may reasonably request relating to the
existence of the Borrower and the Guarantor, the authority for and the validity
of this Agreement and the other Loan Documents, and any other matters relevant
hereto, all in form and substance reasonably satisfactory to the Documentation
Agent. Such documentation shall include, without limitation, the articles of
incorporation and by-laws of the Borrower, as amended, modified or supplemented
to the Closing Date, each certified to be true, correct and complete by a senior
officer of the Guarantor as of a date not more than forty-five (45) days prior
to the Closing Date, together with a good standing certificate from the
Secretary of State (or the equivalent thereof) of the State of Delaware with
respect to the Borrower and the State of Delaware with respect to the Guarantor,
and a good standing certificate from the Secretary of State (or the equivalent
thereof) of each other State in which the Borrower or the Guarantor is required
to be qualified to transact business and where failure to be so qualified could
be reasonably expected to have a Material Adverse Effect, each to be dated not
more than forty-five (45) days prior to the Closing Date;
(j) the Documentation Agent shall have received all
certificates, agreements and other documents and papers referred to in this
Section 3.1 and Section 3.2, unless otherwise specified, in sufficient
counterparts, satisfactory in form and substance to the Documentation Agent in
its sole discretion;
(k) the Borrower and the Guarantor each shall have taken
all actions required to authorize the execution and delivery of this Agreement
and the other Loan Documents and the performance thereof by the Borrower;
(l) the Documentation Agent shall have received the Proxy
Statement, which such Proxy Statement shall include an unaudited pro forma
consolidated balance sheet and income statement of the Guarantor and its
Consolidated Subsidiaries for the fiscal year ended December 31, 1997;
(m) the Documentation Agent shall have received wire
transfer instructions in connection with the Loans to be made on the Closing
Date;
(n) the Documentation Agent shall have received, for its
and any other Bank's account, all fees due and payable pursuant to Section 2.8
hereof on or before the Closing Date;
<PAGE>
(o) except for those consents, licenses and approvals more
particularly described on Schedule 3.1 hereto, the Documentation Agent shall
have received copies of all consents, licenses and approvals, if any, required
in connection with the execution, delivery and performance by the Borrower and
the Guarantor, and the validity and enforceability against the Borrower, of the
Loan Documents, or in connection with any of the transactions contemplated
thereby to occur on or prior to the Closing Date and such consents, licenses and
approvals shall be in full force and effect;
(p) the Documentation Agent shall have received certified
copies of each Material Lease and all guaranties executed in connection
therewith, in form and substance satisfactory to the Banks;
(q) the representations and warranties of the Borrower
contained in this Agreement shall be true and correct in all material respects
on and as of the Closing Date both before and after giving effect to the making
of any Loans;
(r) receipt by the Documentation Agent and the Banks of a
certificate of a Senior Officer of the Borrower certifying that the Borrower is
in compliance with all covenants of the Borrower contained in this Agreement,
which certificate shall include pro forma calculations, as of the Closing Date,
indicating compliance with the covenants set forth Section 5.8;
(s) all credit agreements of the Borrower and the Guarantor
for borrowed money other than the Existing Credit Agreements shall have been
terminated and all amounts outstanding thereunder repaid in full;
(t) the Documentation Agent (i) shall have completed all
due diligence investigations and examinations, including review of the Master
Leases and verification of the representations and warranties contained herein,
(ii) shall be satisfied with the terms of the spin-off of Vencor, Inc., and
(iii) shall have confirmed the successful tender of the Guarantor's 8 5/8%
senior subordinated notes; and
(u) all conditions set forth in Section 3.1 of the
$1,000,000,000 Credit Agreement dated of even date herewith among Vencor
Operating, Inc., Vencor, Inc., the Lenders, Swingline Bank, LC Issuing Banks,
Senior Managing Agents, Managing Agents and Co-Agents named therein, the
Documentation Agent and the Administrative Agent shall have been satisfied or
waived.
<PAGE>
The Documentation Agent shall promptly notify the Borrower and the Banks of
the Closing Date, and such notice shall be conclusive and binding on all parties
hereto.
Section 3.2. Borrowings. The obligation of any Bank to make a Loan,
other than a Refunded Swing Loan, on the occasion of any Borrowing or to
participate in any Letter of Credit issued by the Fronting Bank and the
obligation of the Fronting Bank to issue, extend or renew a Letter of Credit is
subject to the satisfaction of the following conditions:
(a) the Closing Date shall have occurred on or prior to May 15, 1998;
(b) receipt by the Administrative Agent of a Notice of Borrowing as
required by Section 2.2, 2.4 or 2.5;
(c) immediately after such Borrowing or issuance, extension or
renewal of any Letter of Credit, the Outstanding Balance will not exceed the
aggregate amount of the Commitments and with respect to each Bank, such Bank's
pro rata portion of the Loans and Letter of Credit Usage will not exceed such
Bank's Commitment;
(d) immediately before and after such Borrowing or issuance,
extension or renewal of any Letter of Credit, no Default or Event of Default
shall have occurred and be continuing both before and after giving effect to the
making of such Loans or issuing, extending or renewing any Letter of Credit;
(e) the representations and warranties of the Borrower, the
Guarantor and their Subsidiaries contained in this Agreement and the other Loan
Documents (other than representations and warranties which speak as of a
specific date, which representations and warranties shall have been true as of
such date) shall be true and correct in all material respects on and as of the
date of such Borrowing or issuance, extension or renewal of any Letter of
Credit, both before and after giving effect to the making of such Loans or
issuing, extending or renewing any Letter of Credit;
(f) no law or regulation shall have been adopted, no order, judgment
or decree of any governmental authority shall have been issued, and no
litigation shall be pending or threatened, which does or, with respect to any
threatened litigation, seeks to enjoin, prohibit or restrain, the making or
repayment of the Loans,
<PAGE>
the issuance of any Letter of Credit or any participations therein or
the consummation of the transactions contemplated hereby; and
(g) no event, act or condition shall have occurred after the Closing
Date which, in the reasonable judgment of the Required Banks of Tranche B, has
had or is likely to have a Material Adverse Effect.
Each Borrowing or issuance, extension or renewal of any Letter of Credit
hereunder shall be deemed to be a representation and warranty by the Borrower on
the date of such Borrowing or issuance, extension or renewal of any Letter of
Credit, as to the facts specified in clauses (c) through (g) of this Section
(except that with respect to clause (f), such representation and warranty shall
be deemed to be limited to laws, regulations, orders, judgments, decrees and
litigation affecting the Borrower and not solely the Banks).
Section 3.3. Additional Real Property Assets.
(a) Any Real Property Asset other than those set forth on
Exhibits B and C hereto desired by the Borrower to be included as an
Unencumbered Asset Pool Property will require the approval of the Super-Majority
Banks. The Borrower shall submit to the Administrative Agent the materials set
forth below (the "Due Diligence Package") relating to each Real Property Asset
that the Borrower desires to be added to the Unencumbered Asset Pool Properties.
The Due Diligence Package shall include (i) a description of the Real Property
Asset, (ii) two (2) years of historical cash flow operating statements, if
available, (iii) five (5) years of cash flow projections of the Borrower's
interest in the Real Property Asset (including capital expenditures), (iv) a map
and site plan, if available, (v) to the extent obtained by the Borrower, the
Guarantor or, as applicable, a Subsidiary of either, evidence of zoning
compliance (which evidence can include a "lawyer's letter" from a local counsel
engaged by Borrower, the Guarantor or, as applicable, a Subsidiary of either at
the time of acquisition), (vi) a copy of any engineer's inspection report
obtained by the Borrower, the Guarantor or, if applicable, a Subsidiary of
either in connection with the Real Property Asset, (vii) a copy of the Title
Commitment obtained by the Borrower, the Guarantor or, if applicable, a
Subsidiary that owns or leases (or will own or lease) such Real Property Asset,
(viii) a copy of an environmental report for such Real Property Asset indicating
that such Real Property Asset and the use thereof each complies in all material
respects with all applicable Environmental Laws and is free from contamination
by any Material of Environmental Concern or, if the environmental report
indicates that any remediation or other environmental work is recom-
<PAGE>
mended or required, and, in the case of asbestos containing materials, such
materials are friable or are not otherwise encapsulated, the Borrower shall
either (A) obtain a guaranty as to the completion of such remediation or work
from a Person (other than the Borrower, the Guarantor and their Affiliates)
having an Investment Grade Rating or, if such a rating is unavailable, having a
regional or national reputation, or (B) furnish to the Documentation Agent Cash
or Cash Equivalents (or other security satisfactory to the Administrative Agent)
in an amount equal to 100% of the reasonably estimated cost of completing such
remediation or other work, (ix) copies of the lease agreements for each of the
tenants of such Real Property Asset, together with an abstract or summary of
each lease for any tenant which occupies more than 15% of such Real Property
Asset or accounts for more than 15% of the base rentals of such Real Property
Asset and (x) such additional information with respect to each Real Property
Asset, the tenants of such Real Property Asset and, if applicable, the
Subsidiary that owns or leases such Real Property Asset, as the Documentation
Agent or any Bank shall reasonably request.
(b) The Borrower shall distribute a copy of each item
constituting the Due Diligence Package by overnight mail to the Administrative
Agent, with sufficient copies for each of the Banks for review and approval by
the Super-Majority Banks, which approval shall not be unreasonably withheld.
Failure to respond to the Administrative Agent in writing by any Bank within ten
(10) Domestic Business Days after receipt of the Due Diligence Package, shall be
deemed to be an approval by such Bank of such Real Property Asset for inclusion
as a Unencumbered Asset Pool Property.
(c) The Borrower and the Guarantor shall permit (and shall
cause their respective Subsidiaries to permit) the Documentation Agent at all
reasonable times and upon reasonable prior notice to the Guarantor and its
Subsidiaries and the operator of the facility to make an inspection of any Real
Property Asset.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and each of the other Banks
which are or may become a party to this Agreement to make the Loans, the
Borrower makes the following representations and warranties as of the date
hereof. Such representations and warranties shall survive the effectiveness of
this Agreement, the execution and delivery of the other Loan Documents and the
making of the Loans.
<PAGE>
Section 4.1. Existence and Power. Each of the Borrower and the Guarantor
is duly organized, validly existing and in good standing as a limited
partnership or corporation, as applicable, under the laws of the State of
Delaware and has all powers and all material governmental licenses,
authorizations, consents and approvals required to own its property and assets
and carry on its business as now conducted or as it presently proposes to
conduct and has been duly qualified and is in good standing in every
jurisdiction in which the failure to be so qualified and/or in good standing is
likely to have a Material Adverse Effect.
Section 4.2. Power and Authority. Each of the Borrower, the Guarantor and
their Subsidiaries has the partnership or corporate power and authority, as
applicable, to execute, deliver and carry out the terms and provisions of each
of the Loan Documents to which it is a party and has taken all necessary action
to authorize the execution and delivery on behalf of the Borrower, the Guarantor
or such Subsidiary and the performance by the Borrower, the Guarantor and their
Subsidiaries of such Loan Documents. Each of the Borrower, the Guarantor and
their Subsidiaries has duly executed and delivered each Loan Document to which
it is a party, and each such Loan Document constitutes the legal, valid and
binding obligation of the Borrower, the Guarantor and their Subsidiaries a party
thereto, enforceable in accordance with its terms, except as enforceability may
be limited by applicable insolvency, bankruptcy or other laws affecting
creditors rights generally, or general principles of equity, whether such
enforceability is considered in a proceeding in equity or at law.
Section 4.3. No Violation; Government Approvals; Licenses. Except as set
forth on Schedule 4.3 hereof, neither the execution, delivery or performance by
or on behalf of the Borrower, the Guarantor or any Subsidiary of either of the
Loan Documents, nor compliance by the Borrower, the Guarantor or any of their
Subsidiaries with the terms and provisions thereof nor the consummation of the
transactions contemplated by the Loan Documents, (i) will contravene any
applicable provision of any law, statute, rule, regulation, order, writ,
injunction or decree of any court or governmental instrumentality applicable to
Borrower, Guarantor or any of their Subsidiaries, (ii) will conflict with or
result in any breach of, any of the terms, covenants, conditions or provisions
of, or constitute a default under, or result in the creation or imposition of
(or the obligation to create or impose) any Lien upon any of the property or
assets of the Borrower, the Guarantor or any of their Subsidiaries pursuant to
the terms of any material indenture, mortgage, deed of trust, or other agreement
or other instrument to which the Borrower, the Guarantor or any of their
Subsidiaries (or of any partnership of which the Borrower, the Guarantor or any
of their Subsidiaries is a
<PAGE>
partner) is a party or by which it or any of its property or assets is bound or
to which it is subject, (iii) will cause a default by the Borrower or the
Guarantor under any organizational document of either of them or any of their
Subsidiaries, or (iv) will require any order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any governmental or public body or authority, or any subdivision
thereof, to authorize delivery and performance of any Loan Document or the
consummation of any of the transactions contemplated thereby other than those
that have already been duly made or obtained and remain in full force and
effect. The Borrower, the Guarantor and each of their Subsidiaries has obtained
and holds in full force and effect, all franchises, licenses, permits,
certificates, including certificates of need, authorizations, qualifications,
accreditations, easements, rights of way and other consents and approvals which
are necessary for the operation of its businesses as presently conducted, the
absence of which is likely (to the extent that the Borrower, the Guarantor and
each Subsidiary can now reasonably foresee) to have a Material Adverse Effect.
Section 4.4. Financial Information.
(a) The unaudited pro forma consolidated balance sheet of the
Guarantor and its Consolidated Subsidiaries as of December 31, 1997, as
delivered in the Proxy Statement fairly present, in conformity with GAAP, the
consolidated pro forma financial position of the Guarantor and its Consolidated
Subsidiaries as of such date and their pro forma consolidated results of
operations for such fiscal year.
(b) Since December 31, 1997, on a pro forma basis (i) there has
been no material adverse change in the business, financial position or results
of operations of the Guarantor and its Consolidated Subsidiaries and (ii) except
as previously disclosed to the Documentation Agent and each Bank, the Guarantor
and its Consolidated Subsidiaries have not incurred any material indebtedness or
guaranty.
Section 4.5. Litigation.
(a) Except as identified on Schedule 4.5, there is no action,
suit or proceeding pending against, or to the knowledge of the Borrower or the
Guarantor, threatened against or affecting, (i) the Borrower, the Guarantor or
any of their Subsidiaries, (ii) the Loan Documents or any of the transactions
contemplated by the Loan Documents or (iii) any of their assets, in any case
before any court or arbitrator or any governmental body, agency or official
which could reasonably be expected to
<PAGE>
have a Material Adverse Effect or which in any manner draws into question the
validity of this Agreement or the other Loan Documents.
(b) There are no final nonappealable judgments or decrees in an
aggregate amount of Five Million Dollars ($5,000,000) or more entered by a court
or courts of competent jurisdiction against the Borrower, the Guarantor or any
of their Subsidiaries holding Unencumbered Asset Pool Properties which remain
unpaid and there are no final nonappealable judgments or decrees against any
Subsidiaries other than those holding Unencumbered Asset Pool Properties which
would have a Material Adverse Effect (in each case, other than any judgment as
to which, and only to the extent, a reputable insurance company has acknowledged
coverage of such claim in writing).
Section 4.6. Compliance with ERISA.
(a) Except as previously disclosed to the Documentation Agent in
writing, each member of the ERISA Group has fulfilled its obligations under the
minimum funding standards of ERISA and the Internal Revenue Code with respect to
each Plan and is in compliance in all material respects with the presently
applicable provisions of ERISA and the Internal Revenue Code with respect to
each Plan. No member of the ERISA Group has (i) sought a waiver of the minimum
funding standard under Section 412 of the Internal Revenue Code in respect of
any Plan, (ii) failed to make any contribution or payment to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement, or made any
amendment to any Plan or Benefit Arrangement, which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security under
ERISA or the Internal Revenue Code or (iii) incurred any liability under Title
IV of ERISA other than a liability to the PBGC for premiums under Section 4007
of ERISA.
(b) Except for each "employee benefit plan" (as such term is
defined in Section 3(3) of ERISA) that is maintained, or contributed to, by one
or more members of the ERISA Group, no member of the ERISA Group is a "party in
interest" (as such term is defined in Section 3(14) of ERISA or a "disqualified
person" (as such term is defined in Section 4975(e)(2) of the Internal Revenue
Code) with respect to any funded employee benefit plan and none of the assets of
any such plans have been invested in a manner that would cause the transactions
contemplated by the Loan Documents to constitute a nonexempt prohibited
transaction (as such term is defined in Section 4975 of the Internal Revenue
Code or Section 406 of ERISA).
<PAGE>
Section 4.7. Environmental Compliance. To the best of Borrower's
knowledge, (i) there are in effect all Environmental Approvals which are
required to be obtained under all Environmental Laws with respect to the
Property, except for such Environmental Approvals the absence of which would not
have a Material Adverse Effect, (ii) the Borrower and each Subsidiary is in
compliance in all material respects with the terms and conditions of all such
Environmental Approvals, and is also in compliance in all material respects with
all other Environmental Laws or any plan, order, decree, judgment, injunction,
notice or demand letter issued, entered or approved thereunder, except to the
extent failure to comply would not have a Material Adverse Effect.
Except as set forth in the Environmental Reports or otherwise
disclosed to the Documentation Agent as of the Closing Date, to Borrower's
actual knowledge:
(i) There are no Environmental Claims or investigations
pending or threatened by any Governmental Authority with respect to any
alleged failure by the Borrower or its Subsidiaries to have any
Environmental Approval required in connection with the conduct of the
business of the Borrower or its Subsidiaries on any of the Unencumbered
Asset Pool Properties, or with respect to any generation, treatment,
storage, recycling, transportation, Release or disposal of any Material of
Environmental Concern generated by the Borrower or its Subsidiaries or any
lessee on any of the Unencumbered Asset Pool Properties;
(ii) No Material of Environmental Concern has been Released at
the Property to an extent that it may reasonably be expected to have a
Material Adverse Effect;
(iii) No Environmental Claims have been filed with a
Governmental Authority with respect to any of the Unencumbered Asset Pool
Properties, and none of the Unencumbered Asset Pool Properties is listed or
proposed for listing on the National Priority List promulgated pursuant to
CERCLA, on CERCLIS or on any similar state list of sites requiring
investigation or clean-up;
(iv) There are no Liens arising under or pursuant to any
Environmental Laws on any of the Unencumbered Asset Pool Properties, and
<PAGE>
no government actions have been taken or are in process which could subject
any of the Unencumbered Asset Pool Properties to such Liens; and;
(v) There have been no environmental investigations, studies,
audits, tests, reviews or other analyses conducted by, or which are in the
possession of, the Borrower or its Subsidiaries in relation to any of the
Unencumbered Asset Pool Properties which have not been made available to
the Documentation Agent at the Guarantor's principal place of business.
Section 4.8. Taxes. The initial tax year of the Borrower for federal
income tax purposes is 1998. The Borrower, the Guarantor and their Subsidiaries
have filed all United States Federal income tax returns or extensions thereto
and all other material tax returns which are required to be filed by them and
have paid all taxes due pursuant to such returns or pursuant to any assessment
received by the Borrower, the Guarantor or any of their Subsidiaries except
those being contested in good faith. The charges, accruals and reserves on the
books of the Borrower, the Guarantor and their Subsidiaries in respect of taxes
or other governmental charges are, in the opinion of the Borrower, adequate.
Section 4.9. Full Disclosure. All information heretofore furnished by the
Borrower or the Guarantor to the Documentation Agent or any Bank for purposes of
or in connection with this Agreement or any transaction contemplated hereby is
true and accurate in all material respects on the date as of which such
information is stated or certified. The Borrower and the Guarantor have
disclosed to the Banks in writing any and all facts known to the Borrower or the
Guarantor which materially and adversely affect or are likely to materially and
adversely affect (to the extent the Borrower or the Guarantor can now reasonably
foresee), the business, operations or financial condition of the Borrower, the
Guarantor and their Subsidiaries considered as one enterprise or the ability of
the Borrower, the Guarantor and their Subsidiaries to perform its obligations
under this Agreement or the other Loan Documents.
Section 4.10. Solvency. On the Closing Date and after giving effect to
the transactions contemplated by the Loan Documents occurring on the Closing
Date, the Borrower is Solvent.
<PAGE>
Section 4.11. Use of Proceeds; Margin Regulations. All proceeds of the
Loans will be used by the Borrower only in accordance with the provisions
hereof. No part of the proceeds of any Loan will be used by the Borrower or any
Subsidiaries to purchase or carry any Margin Stock or to extend credit to others
for the purpose of purchasing or carrying any Margin Stock. Neither the making
of any Loan nor the use of the proceeds thereof will violate or be inconsistent
with the provisions of Regulations T, U or X of the Federal Reserve Board.
Section 4.12. Investment Company Act; Public Utility Holding Company Act.
Neither the Borrower, the Guarantor nor any of their Subsidiaries are (x) an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended, (y) a
"holding company" or a "subsidiary company" of a "holding company" or an
"affiliate" of either a "holding company" or a "subsidiary company" within the
meaning of the Public Utility Holding Company Act of 1935, as amended, or (z)
subject to any other federal or state law or regulation which purports to
restrict or regulate its ability to borrow money.
Section 4.13. Closing Date Transactions. On the Closing Date and
immediately prior to or concurrently with the making of the Loans, the
transactions (other than the making of the Loans) intended to be consummated on
the Closing Date pursuant to this Agreement and described in the Proxy Statement
will have been consummated in accordance with all applicable laws.
Section 4.14. Representations and Warranties in Loan Documents. All
representations and warranties made by the Borrower, the Guarantor and their
Subsidiaries in the Loan Documents are true and correct in all material
respects.
Section 4.15. Patents, Trademarks, etc The Borrower and each of its
Subsidiaries has obtained and holds in full force and effect all patents,
trademarks, service marks, trade names, copyrights and other such rights, free
from burdensome restrictions, which are necessary for the operation of its
business as presently conducted, the impairment of which is likely to have a
Material Adverse Effect. To the Borrower's knowledge, no material product,
process, method, substance, part or other material presently sold by or employed
by the Borrower in connection with such business infringes any patent,
trademark, service mark, trade name, copyright, license or other such right
owned by any other Person. There is not pending or, to the Borrower's
knowledge, threatened any claim or litigation against or affecting the Borrower
or any
<PAGE>
of its Subsidiaries contesting its right to sell or use any such product,
process, method, substance, part or other material.
Section 4.16. No Default. No Default or Event of Default exists under or
with respect to any Loan Document. The Borrower is not in default in any
material respect beyond any applicable grace period under or with respect to any
other material agreement, instrument or undertaking to which it is a party or by
which it or any of its property is bound in any respect, the existence of which
default is likely (to the extent that the Borrower can now reasonably foresee)
to result in a Material Adverse Effect.
Section 4.17. Compliance With Law. The Borrower, the Guarantor and their
Subsidiaries are in compliance with all laws, rules, regulations, orders,
judgments, writs and decrees, including, without limitation, all building and
zoning ordinances and codes, the failure to comply with which is likely (to the
extent that the Borrower can now reasonably foresee) to have a Material Adverse
Effect.
Section 4.18. Brokers' Fees. Except as otherwise disclosed in the Proxy
Statement, the Borrower has not dealt with any broker or finder with respect to
the transactions contemplated by the Loan Documents (except with respect to the
acquisition or disposition of Real Property Assets) or otherwise in connection
with this Agreement, and the Borrower has not done any acts, had any
negotiations or conversation, or made any agreements or promises which will in
any way create or give rise to any obligation or liability for the payment by
the Borrower of any brokerage fee, charge, commission or other compensation to
any party with respect to the transactions contemplated by the Loan Documents
(except with respect to the acquisition or disposition of Real Property Assets),
other than the fees payable hereunder.
Section 4.19. Labor Matters. Except as set forth on Schedule 4.19
attached hereto and made a part hereof, there are no collective bargaining
agreements or Multiemployer Plans covering the employees of the Borrower and the
Borrower has not suffered any strikes, walkouts, work stoppages or other
material labor difficulty within the last five (5) years.
Section 4.20. Organizational Documents. The documents delivered pursuant
to Section 3.1(i) constitute, as of the Closing Date, all of the organizational
documents (together with all amendments and modifications thereof) of the
Borrower. The Borrower represents that it has delivered to the Documentation
Agent true, correct and complete copies of each of the documents set forth in
this Section 4.20.
<PAGE>
Section 4.21. Principal Offices. The principal office, chief executive
office and principal place of business of the Borrower is 3300 Aegon Center, 400
West Market Street, Louisville, Kentucky 40202.
Section 4.22. Ownership of Property. The Borrower owns, directly or
indirectly, fee simple title (or leasehold title if so designated on Schedule
4.22 hereto) to each of the Real Property Assets, as more particularly set forth
on Schedule 4.22 hereto, which schedule also sets forth the owner/lessee of each
Real Property Asset.
Section 4.23. Insurance. The Borrower currently maintains, or causes to
be maintained pursuant to the provisions of each Material Lease, insurance at
100% replacement cost insurance coverage in respect of each of the Real Property
Assets, as well as comprehensive general liability insurance against claims for
personal, and bodily injury and/or death, to one or more persons, or property
damage, as well as workers' compensation insurance, in each case with respect to
the Real Property Assets with insurers having an A.M. Best policyholders' rating
of not less than A-V, or an S&P rating of A or the equivalent thereto, in
amounts that prudent owner of assets such as the Real Property Assets would
maintain.
Section 4.24. "Year 2000" Compliance. The Borrower and Guarantor have
(i) initiated a review and assessment of all areas within their and each of
their Subsidiaries' business and operations (including those affected by
suppliers and vendors) that could be adversely affected by the "Year 2000
Problem" (that is, the risk that computer applications used by the Borrower or
Guarantor or any of their Subsidiaries (or their suppliers and vendors) may be
unable to recognize and perform properly date-sensitive functions involving
certain dates prior to and any date after December 31, 1999), (ii) developed a
plan and timeline for addressing the Year 2000 Problem on a timely basis, and
(iii) to date, implemented that plan in accordance with that timetable. The
Borrower and Guarantor reasonably believe that all computer applications
(including those of their suppliers and vendors) that are material to their or
any of their Subsidiaries' business and operations will, on a timely basis, be
able to perform properly date-sensitive functions for all dates before and after
January 1, 2000 (that is, be "Year 2000 compliant"), except to the extent that a
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
Section 4.25. REIT Status. From and after January 1, 1999, the
Guarantor will qualify and intends to continue thereafter to qualify as a real
estate investment trust under the Internal Revenue Code.
<PAGE>
ARTICLE V
AFFIRMATIVE AND NEGATIVE COVENANTS
The Borrower covenants and agrees that, so long as any Bank has any
Commitment hereunder or any Obligations remain unpaid:
Section 5.1. Information. The Borrower will, subject to the final
paragraph of this Section 5.1, deliver to the Administrative Agent sufficient
copies for each of the Banks (if requested by the Administrative Agent) of the
following information which the Administrative Agent shall promptly forward to
the Banks:
(a) as soon as available and in any event within 90 days after the
end of each fiscal year of the Guarantor and its Consolidated Subsidiaries, an
audited consolidated balance sheet of the Guarantor and its Consolidated
Subsidiaries as of the end of such fiscal year and the related consolidated
statements of cash flow and operations for such fiscal year, setting forth in
each case in comparative form the figures for the previous fiscal year, if
available, audited by Ernst & Young LLP or other independent public accountants
of similar standing;
(b) to the extent prepared by Borrower, and in such event within 90
days after the end of each fiscal year of the Borrower, an audited consolidated
balance sheet of the Borrower (or unaudited, if no audited balance sheet is
prepared) as of the end of such fiscal year and the related consolidated
statements of cash flow and operations for such fiscal year, setting forth in
each case in comparative form the figures for the previous fiscal year, if
available, audited by Ernst & Young LLP or other independent public accountants
of similar standing;
(c) as soon as available and in any event within 45 days after the
end of each quarter of each fiscal year (other than the last quarter in any
fiscal year) of the Guarantor and its Consolidated Subsidiaries a statement of
the Guarantor and its Consolidated Subsidiaries prepared in accordance with GAAP
setting forth the operating income and operating expenses of the Guarantor and
its Consolidated Subsidiaries, as well as the related statements of cash flow
and operations for such quarter, and a balance sheet relating to such quarter,
all in sufficient detail so as to calculate Unencumbered Asset Pool Net
Operating Cash Flow of the Guarantor and its Consolidated Subsidiaries for the
immediately preceding quarter;
<PAGE>
(d) commencing June 30, 1998 and thereafter as soon as available and
in any event within 90 days after the end of each quarter of each fiscal year
(other than the last quarter in any fiscal year) of the Borrower, a statement of
the Borrower, prepared in accordance with GAAP, setting forth the operating
income and operating expenses of the Borrower and a consolidated balance sheet
of the Borrower as of the end of such fiscal quarter and the related
consolidated statements of cash flow and operations for such fiscal quarter;
(e) simultaneously with the delivery of each set of financial
statements referred to in clauses (a), (b), (c) and (d) above, a certificate of
a Senior Officer of the Guarantor (i) setting forth in reasonable detail the
calculations required to establish whether the Borrower was in compliance with
the requirements of Section 5.8 on the date of such financial statements; (ii)
stating whether any Default exists on the date of such certificate and, if any
Default then exists, setting forth the details thereof and the action which the
Borrower is taking or proposes to take with respect thereto; and (iii)
certifying (x) that such financial statements fairly present the financial
condition and the results of operations of the Guarantor and its Consolidated
Subsidiaries as of the dates and for the periods indicated, in accordance with
GAAP, subject, in the case of interim financial statements, to normal year-end
adjustments, and (y) that such officer has reviewed the terms of the Loan
Documents and has made, or caused to be made under his or her supervision, a
review in reasonable detail of the business and condition of the Borrower during
the period beginning on the date through which the last such review was made
pursuant to this Section 5.1(c) and ending on a date not more than ten (10)
Domestic Business Days prior to the date of such delivery and that on the basis
of such review of the Loan Documents and the business and condition of the
Borrower, to the best knowledge of such officer, no Default or Event of Default
under any other provision of Section 6.1 occurred or, if any such Default or
Event of Default has occurred, specifying the nature and extent thereof and, if
continuing, the action the Borrower proposes to take in respect thereof;
(f) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a letter from the firm of
independent public accountants that reported on such statements stating (i)
whether anything has come to their attention in the course of their normal audit
procedures to cause them to believe that any Default or Event of Default existed
on the date of such financial statements and (ii) whether in their opinion the
calculations set forth in the officer's certificate delivered pursuant to clause
(e) above, to the extent derived from data contained in the accounting records
of Guarantor and its Consolidated Subsidiaries, have been determined in
accordance with the relevant provisions of this Agreement;
<PAGE>
(g) within five (5) days after the president, chief financial
officer, treasurer, controller or other executive officer of the Borrower
obtains knowledge of any Default, if such Default is then continuing, a
certificate of the chief financial officer or the president of the Borrower
setting forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto; (ii) promptly and in any event within ten
(10) days after the Borrower obtains knowledge thereof, notice of (x) any
litigation or governmental proceeding pending or threatened against the Borrower
which is likely to individually or in the aggregate, result in a Material
Adverse Effect, and (y) any other event, act or condition which is likely to
result in a Material Adverse Effect;
(h) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security, a
certificate of the chief financial officer or the chief accounting officer of
the Borrower setting forth details as to such occurrence and action, if any,
which the Borrower or applicable member of the ERISA Group is required or
proposes to take;
(i) promptly and in any event within five (5) Domestic Business Days
after the Borrower obtains actual knowledge of any of the following events, a
certificate of the Borrower executed by an officer of the Borrower specifying
the na-
<PAGE>
ture of such condition and the Borrower's, if the Borrower has actual knowledge
thereof, or the Environmental Affiliate's proposed initial response thereto: (i)
the receipt by the Borrower, or, if the Borrower has actual knowledge thereof,
any of the Environmental Affiliates, of any communication (written or oral),
whether from a governmental authority, citizens group, employee or otherwise,
that alleges that the Borrower, or, if the Borrower has actual knowledge
thereof, any of the Environmental Affiliates, is not in compliance with
applicable Environmental Laws, and such noncompliance is likely to have a
Material Adverse Effect, (ii) the Borrower shall obtain actual knowledge that
there exists any Environmental Claim which is likely to have a Material Adverse
Effect pending or threatened against the Borrower or any Environmental Affiliate
or (iii) the Borrower obtains actual knowledge of any release, emission,
discharge or disposal of any Material of Environmental Concern that is likely to
form the basis of any Environmental Claim against the Borrower or any
Environmental Affiliate, and such Environmental Claim is likely to have a
Material Adverse Effect;
(j) promptly and in any event within five (5) Domestic Business Days
after receipt of any material notices or correspondence from any company or
agent for any company providing insurance coverage to the Borrower relating to
any material loss or loss of the Borrower with respect to any of the
Unencumbered Asset Pool Properties, copies of such notices and correspondence;
and
(k) promptly upon the mailing thereof to the shareholders of the
Guarantor, copies of all financial statements, reports and proxy statement so
mailed;
(l) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) which the Borrower or the Guarantor shall have filed with the
Securities and Exchange Commission;
(m) immediately upon knowledge thereof, notice of any material
default by the tenant under any Material Lease;
(n) simultaneously with delivery of the information required by
Sections 5.1(a) and (b), a statement of Unencumbered Asset Pool Net Operating
Cash Flow with respect to each Unencumbered Asset Pool Property or each group
thereof and a list of all Unencumbered Asset Pool Properties; and
<PAGE>
(o) from time to time such additional information regarding the
financial position or business of the Borrower as the Administrative Agent, at
the request of any Bank, may reasonably request.
Information required to be delivered pursuant to clauses (a), (b), (c) or
(d) of this Section shall be deemed to have been delivered on the date on which
Borrower provides notice to the Administrative Agent (which the Administrative
Agent shall promptly forward to the Banks) that such information has been posted
on Borrower's website on the Internet at the website address listed on the
signature pages hereof, at sec.gov/edaux/searches.htm or at another website
identified in such notice and accessible by the Banks without charge; provided
that (i) such notice may be included in a certificate delivered pursuant to
subsection (e) hereof and (ii) Borrower shall deliver paper copies of the
information referred to in subsection (a), (b), (c) and (d) of this Section to
any Bank which requests such delivery.
Section 5.2. Payment of Obligations. The Borrower will, and shall cause
its Subsidiaries to, pay and discharge, at or before maturity, all its material
obligations and liabilities including, without limitation, any obligation
pursuant to any agreement by which it or any of its properties is bound and any
tax liabilities, in any case, where failure to do so will likely result in a
Material Adverse Effect except (i) such tax liabilities may be contested in good
faith by appropriate proceedings, and will maintain in accordance with GAAP,
appropriate reserves for the accrual of any of the same; or (ii) such obligation
or liability as may be contested in good faith by appropriate proceedings.
Section 5.3. Maintenance of Property; Insurance.
(a) The Borrower will, and will cause its Subsidiaries to, keep, or
cause to be kept, each of its Real Property Assets in good repair, working order
and condition, subject to ordinary wear and tear.
<PAGE>
(b) The Borrower shall, and will cause its Subsidiaries to, (a)
maintain, or cause to be maintained, insurance as specified in Section 4.23
hereof with insurers meeting the qualifications described therein, which
insurance shall in any event not provide for materially less coverage than the
insurance in effect on the Closing Date, and (b) furnish to the Administrative
Agent from time to time, upon written request, copies of the policies under
which such insurance is issued, certificates of insurance and such other
information relating to such insurance as such Bank may reasonably request. The
Borrower will, and will cause its Subsidiaries to, deliver to the Banks (i) upon
request of any Bank through the Administrative Agent from time to time, full
information as to the insurance carried, (ii) within five (5) days of receipt of
notice from any insurer, a copy of any notice of cancellation or material change
in coverage from that existing on the date of this Agreement and (iii)
forthwith, notice of any cancellation or nonrenewal of coverage by the Borrower
or any Subsidiary.
Section 5.4. Conduct of Business. The Borrower's primary business will
continue to be acquiring, owning, developing (to the extent permitted in this
Agreement), and leasing healthcare related properties.
Section 5.5. Compliance with Laws. Except with respect to those matters
set forth on Schedule 4.3, the Borrower will, and will cause its Subsidiaries
to, comply in all material respects with all applicable laws, ordinances, rules,
regulations, and requirements of governmental authorities (including, without
limitation, Environmental Laws, all zoning and building codes and ERISA and the
rules and regulations thereunder) except where the necessity of compliance
therewith is contested in good faith by appropriate proceedings.
Section 5.6. Inspection of Property, Books and Records. The Borrower
will, and will cause its Subsidiaries to, keep proper books of record and
account in which full, true and correct entries shall be made of all dealings
and transactions in relation to its business and activities; and will permit
representatives of any Bank at such Bank's expense to visit and inspect any of
its properties to examine and make abstracts from any of its books and records
and to discuss its affairs, finances and accounts with its officers and
employees, all at such reasonable times, upon reasonable notice, and as often as
may reasonably be desired.
Section 5.7. Existence.
(a) The Borrower shall, and shall cause its Subsidiaries holding
Unencumbered Asset Pool Properties to, do or cause to be done all things
necessary to
<PAGE>
preserve and keep in full force and effect its partnership or corporate
existence, as applicable.
(b) The Borrower shall, and shall cause its Subsidiaries to, do or
cause to be done all things necessary to preserve and keep in full force and
effect its patents, trademarks, servicemarks, trade names, copyrights,
franchises, licenses, permits, certificates, including certificates of need,
authorizations, qualifications, accreditations, easements, rights of way and
other rights, consents and approvals the nonexistence of which is likely to have
a Material Adverse Effect.
Section 5.8. Financial Covenants.
(a) Total Debt to Tangible FMV. As of June 30, 1998 and the last day
of each of the four (4) full calendar quarters following the Closing Date, the
Maximum Total Debt Ratio will not be greater than 55%. As of the last day of
each calendar quarter thereafter, the Maximum Total Debt Ratio will not be
greater than 50%
(b) EBITDA Interest Coverage. As of the last day of each calendar
quarter, the ratio of (i) Annual EBITDA to (ii) Total Debt Service, will not be
less than 2.25:1.
<PAGE>
(c) EBITDA Debt Service Coverage. As of June 30, 1998 and the last
day of each of the four (4) full calendar quarters following the Closing Date,
the ratio of (x) Annual EBITDA (on an annualized basis in the case of the
Closing Date and the first three such calendar quarters), to (y) the sum of (i)
Total Debt Service on an annualized basis, (ii) scheduled payments of principal
on any Debt (as described in clause (A) of the definition thereof) of the
Guarantor, the Borrower or any Consolidated Subsidiary, whether or not paid by
the Guarantor, Borrower or any such Consolidated Subsidiary (excluding balloon
payments) on an annualized basis, provided, however, that in the case of
scheduled payments of principal pursuant to this Agreement, the actual principal
amounts scheduled to be paid hereunder, rather than annualized amounts shall be
included for purposes of this clause, for the previous four consecutive quarters
including the quarter then ended, plus the Borrower's pro rata share of
scheduled payments of principal on any Debt of any Minority Holding, whether or
not paid by the Borrower (excluding balloon payments) for the previous four
consecutive quarters including the quarter then ended, and (iii) dividends or
other payments payable by the Guarantor with respect to any preferred stock
issued by the Guarantor and distributions or other payments payable by the
Borrower with respect to any preferred partnership units of the Borrower, will
not be less than 1.50:1. As of the last day of each calendar quarter thereafter,
such ratio will be not less than 2.00:1.
(d) Unencumbered Debt Service Coverage Ratio. As of June 30, 1998 and
the last day of the each of the four (4) full calendar quarters following the
Closing Date, the Unencumbered Debt Service Coverage Ratio will not be less than
2.15:1. Thereafter, the Unencumbered Debt Service Coverage Ratio, as of the last
day of each calendar quarter, shall not be less than 2.20:1.
(e) Unsecured Debt Ratio.
(i) As of June 30, 1998, the last day of each of the four (4)
full calendar quarters following the Closing Date, the Unsecured Debt Ratio,
expressed as a percentage, shall not exceed 55%;
(ii) As of the last day of each calendar quarter thereafter,
for the period beginning with the fifth (5th) full calendar quarter from the
Closing Date and ending on the last day of the last calendar quarter in 1999,
the Unsecured Debt Ratio expressed as a percentage shall not exceed 50%; and
(iii) Thereafter, as of the last day of each calendar quarter,
the Unsecured Debt Ratio expressed as a percentage shall not exceed 45%.
<PAGE>
(f) Limitation on Secured Debt. Secured Debt of the Borrower and
its Consolidated Subsidiaries shall at no time exceed twenty-five percent (25%)
of Tangible FMV.
(g) Dividends. The Borrower will not, as determined on an aggregate
basis for each fiscal year, make any distributions in excess of 90% of its
consolidated FFO for such year, except to the extent required so that the
Guarantor shall have sufficient cash so as to permit it to pay such dividends as
shall be required to maintain its status as a real estate investment trust. Upon
the occurrence and during the continuance of an Event of Default, the Borrower
will not make any distributions except as shall be required to maintain its
status as a real estate investment trust.
(h) Minimum Consolidated Tangible Net Worth. The Consolidated
Tangible Net Worth will at no time be less than the sum of (i) ($110,000,000)
plus (ii) 90% of all Net Offering Proceeds.
(i) Limitation on Recourse Debt. Neither the Borrower, the Guarantor
nor any Subsidiary of either shall, at any time, create, incur, assume,
guaranty, suffer to exist or otherwise become or remain directly or indirectly
liable with respect to any Recourse Debt (other than the Obligations) exclusive
of (A) Interest Rate Hedges with respect to floating rate Debt (as set forth in
clause (A) of the definition thereof) of the Borrower, (B) intercompany Debt
between Guarantor or the Borrower and their Consolidated Subsidiaries, (C)
secured Recourse Debt existing with respect to any Real Property Assets at the
time of acquisition by any Subsidiary of Borrower provided that such Recourse
Debt shall be nonrecourse with respect to the Borrower and the Guarantor and not
incurred in contemplation of any such acquisition, (D) Recourse Debt incurred in
connection with equipment leasing provided that the annual aggregate rent
payments thereunder shall not exceed $500,000, (E) Debt outstanding under the
Existing Credit Agreements, and (F) Contingent Obligations as set forth on
Schedule 5.8 hereof.
<PAGE>
Section 5.9. Restriction on Fundamental Changes; Operation and Control.
(a) Guarantor shall carry on its business operations through Borrower
and its Subsidiaries. Neither the Guarantor, the Borrower nor any Subsidiary of
either holding Unencumbered Asset Pool Properties shall enter into any merger or
consolidation, unless the Guarantor or the Borrower or another Subsidiary of
either Borrower or Guarantor which holds Unencumbered Asset Pool Properties, as
the case may be, is the surviving entity, or liquidate, wind-up or dissolve (or
suffer any liquidation or dissolution), discontinue its business or convey,
lease, sell, transfer or otherwise dispose of, in one transaction or series of
transactions, all or any substantial part of its business or property, whether
now or hereafter acquired, hold an interest in any subsidiary which is not
controlled by Borrower or Guarantor, without the prior written consent of the
Required Banks, except for joint ventures in which Borrower's aggregate
ownership interest shall be less than 15% of the fair market value of the Real
Property Assets owned by Borrower as of the date hereof. For purposes hereof,
"fair market value" shall mean the quotient of (x) Net Operating Cash Flow with
respect to the Real Property Assets as of the date hereof (on an annualized
basis in the case of Real Property Assets that have been owned by Borrower or
Guarantor or their Consolidated Subsidiaries for a period of less than four (4)
fiscal quarters) less an amount equal to the product of the G&A Percentage and
such Net Operating Income, and (y) the FMV Cap Rate.
(b) The Borrower shall not amend its articles of limited partnership
in any material respect, without the consent of the Required Banks, which shall
not be unreasonably withheld or delayed; provided, however, that the Borrower
may amend its agreement of limited partnership in connection with the admission
of additional limited partners in connection with the acquisition of additional
Real Property Assets without the prior consent of the Required Banks. The
failure of any Bank to respond to any request for consent as set forth above
within ten (10) Domestic Business Days after receipt of the request for such
consent, shall be deemed to be an approval by such Bank of such amendment to the
Borrower's articles of limited partnership.
Section 5.10. Fiscal Year; Fiscal Quarter. The Borrower shall not, nor
shall it permit any Subsidiary to, change its fiscal year or any of its fiscal
quarters without the consent of the Required Banks, which shall not be
unreasonably withheld or delayed.
<PAGE>
Section 5.11. Margin Stock. None of the proceeds of the Loan will be
used, directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of buying or carrying any Margin Stock.
Section 5.12. Development Activities. The Borrower shall not, nor shall
it permit any Subsidiary to, engage in any development activities except for
development in connection with the expansion and/or repositioning or restoration
following a casualty or condemnation of existing improvements on Real Property
Assets. Notwithstanding the foregoing, the Borrower may, and may allow its
Subsidiaries to, engage in all other development activities where there is
construction completion risk provided that in no event shall the value at
completion (determined in accordance with the book value thereof, in accordance
with GAAP) of the Real Property Assets under such other type of development
exceed ten percent (10%) of the Tangible FMV.
Section 5.13. Interest Rate Protection. The Borrower shall maintain
Interest Rate Hedges on a notional amount of the Debt referred to in clause
(A)(i) and (ii) of the definition of "Debt", of the Borrower and its
Subsidiaries which, when added to the aggregate principal amount of the Debt of
the Borrower and its Subsidiaries which bears interest at a fixed rate, equals
or exceeds 75% of the aggregate principal amount of all Debt referred to in
clause (A)(i) of the definition of such term, of the Borrower and its
Subsidiaries. "Interest Rate Hedges" shall mean interest rate exchange, collar,
cap, swap, adjustable strike cap, adjustable strike corridor or similar
agreements having terms, conditions and tenors reasonably acceptable to the
Documentation Agent entered into by the Borrower and/or its Subsidiaries in
order to provide protection to, or minimize the impact upon, the Borrower and/or
its Subsidiaries of increasing floating rates of interest applicable to Debt.
Section 5.14. Investments in Non-Healthcare Related Assets. The aggregate
amount of the investments of the Borrower and its Consolidated Subsidiaries in
any non-healthcare related assets will at no time exceed five percent (5%) of
the Tangible FMV.
Section 5.15. Investments in Minority Holdings". The quotient of the Net
Operating Cash Flow attributable to the Borrower's interest in all Minority
Holdings, and the FMV Cap Rate, will at no time exceed $25,000,000.
<PAGE>
Section 5.16. Use of Proceeds. (a) The Borrower shall use the proceeds
of the Loans for the purposes of financing acquisitions of additional Real
Property Assets or equity interests in entities owning Real Property Assets,
refinancing outstanding Debt in connection with such other acquisitions and/or
refinancing Debt incurred for any of the foregoing purposes and for other
general corporate purposes of the Borrower and its Subsidiaries (including
acquiring mortgages on Real Property Assets which are healthcare facilities),
and for their working capital requirements (including payment of distributions),
provided, however, that the aggregate amount of the Loans that may be used for
working capital purposes shall not exceed $50,000,000 in the aggregate.
(b) Provided that the Borrower shall have given the Administrative
Agent notice at the time of a Tranche B Loan prepayment pursuant to Section
2.11(a) hereof, that the Borrower intends to reborrow all or a portion of the
amount so prepaid by the end of the quarter during which such prepayment was
made in order to make distributions to its partners, the Borrower shall be
permitted to reborrow such amounts prior to the end of the next succeeding
quarter for the purpose of making distributions relating to such quarter without
the same being deemed to be an advance for working capital purposes. If the
Borrower fails to reborrow such amounts prior to the end of the quarter
following which the Borrower made such prepayments, the Borrower shall not have
the right to reborrow such funds for the purpose of making distributions without
it being deemed for working capital purposes.
(c) Until such time as all Unencumbered Asset Pool Properties set
forth on Exhibit B hereto are owned in fee (or leasehold in the case of the
Unencumbered Asset Pool Properties described as such in Exhibit B) by the
Borrower, the Borrower may loan or distribute proceeds of the Loans to Guarantor
or any Vencor Subsidiary for use by such entities as set forth in subsection (a)
above.
Section 5.17. Sale of Unencumbered Asset Pool Properties. Prior to the
sale or transfer of any Unencumbered Asset Pool Property, the Borrower shall (i)
deliver prior written notice to the Administrative Agent and the Banks, (ii)
deliver to the Administrative Agent and the Banks a certificate from a Senior
Officer certifying that at the time of such sale or other disposal (based on
pro-forma calculations for the previous period assuming that such Unencumbered
Asset Pool Property was not an Unencumbered Asset Pool Property for the relevant
period) all of the covenants contained in Sections 5.8 through 5.14 and 5.16
through 5.21 are and after giving effect to the transaction shall continue to be
true and accurate in all respects, and (iii) pay to
<PAGE>
the Administrative Agent an amount equal to that required pursuant to Section
2.10(a).
Section 5.18. Limitations On Subsidiary Debt. Any Subsidiary which owns
any of the Real Property Assets in the Unencumbered Asset Pool shall not at any
time incur any Debt, and except as contemplated hereby, the Borrower shall not
pledge its interest in such Subsidiary nor shall the Borrower or such Subsidiary
enter into any negative pledge with respect thereto. Notwithstanding the
foregoing, any such Subsidiary may (i) incur Debt from either the Borrower or
Guarantor, provided that such intercompany Debt is, by its terms, subordinate in
right of payment to repayment of the Obligations, and (ii) incur Debt and enter
into negative pledges in connection with equipment leasing to the extent
otherwise permitted hereunder provided that the annual aggregate rent payments
thereunder shall not exceed $500,000 and the negative pledge applies only to the
equipment leased.
Section 5.19. Restrictions on Pledge. The Borrower will not, nor will
it permit any of its Subsidiaries or the Guarantor to, enter into any agreement
(other than this Agreement and the other Loan Documents) prohibiting the
creation or assumption of any Lien upon their properties or interests under the
Master Leases (other than with respect to any mortgage on a particular
property), revenues or assets, whether now owned or hereafter acquired, or
restricting the ability of the Borrower to amend or modify this Agreement or any
other Loan Document. In addition, the Borrower will not, nor will it permit any
of its Subsidiaries or the Guarantor to (other than this Agreement and the other
Loan Documents) enter into any agreement prohibiting an agreement prohibiting
the creation or assumption of any Lien upon their properties (other than with
respect to any mortgage on a particular property), revenues or assets, whether
now owned or hereafter acquired, or restricting the ability of the Borrower to
amend or modify this Agreement or any other Loan Document. The restrictions of
this Section 5.19 shall not apply to a pledge by the Borrower, Guarantor or any
Subsidiary of either thereof entered into in connection with the issuance of
commercial mortgage backed securities as contemplated and more particularly
described in the Proxy Statement or in connection with the secured purchase
money financing of personal property.
Section 5.20. Release of Properties. Borrower or Guarantor or their
Consolidated Subsidiaries may obtain a release of any Unencumbered Asset Pool
Property from the terms of this Agreement provided that prior to or
simultaneously with such release (i) the Borrower shall deliver to the
Administrative Agent and the Banks a certificate from a Senior Officer
certifying that at the time of such release (based on
<PAGE>
pro-forma calculations for the previous period assuming that such Unencumbered
Asset Pool Property was not an Unencumbered Asset Pool Property for the relevant
period) all of the covenants contained in Sections 5.8 through 5.14 and 5.16
through 5.21 are and after giving effect to the release shall continue to be
true and accurate in all respects, (ii) the Borrower or Guarantor or their
Consolidated Subsidiaries shall pay to the Administrative Agent any amounts due
pursuant to Section 2.10, and (iii) no Default or Event of Default has occurred
and is then continuing or will occur as a result thereof.
Section 5.21. REIT Status. (i) The Guarantor shall elect status as a
self-directed and self-administered real estate investment trust under the
Internal Revenue Code as of January 1, 1999, and (ii) at all times thereafter,
Guarantor shall (x) maintain its status as a self-directed and self-administered
real estate investment trust under the Internal Revenue Code, and (y) remain a
publicly traded company listed on the New York Stock Exchange.
Section 5.22. Affiliate Transactions. The Borrower will not, nor will it
permit any Subsidiary to, enter into any transaction with or make any payment to
any Affiliates. Notwithstanding the foregoing, the Borrower or any Subsidiary
may enter into transactions with Affiliates (other than purchases or sales of
real property, or loan transactions) which involve (i) underwriting or placement
agent agreements as to which no amounts are payable by the Borrower other than
expenses payable to third parties or indemnity obligations, in each case not
less favorable to the Borrower or any Subsidiary than those which are generally
available in the market, (ii) collective insurance agreements, (iii) investments
in Minority Holdings (subject to Section 5.15 hereof), (iv) customary employment
and compensation agreements, (v) the Existing Affiliate Agreements, and (vi) any
other contract which contains terms that are not less favorable to the Borrower
or Guarantor or any of their Subsidiaries than those which are generally
available in the market.
Section 5.23. Leases. (a) Except for the Master Leases and Qualified
Development Property Leases, the Borrower shall not, nor shall the Borrower
permit any Subsidiary to, enter into any lease, management agreement, or
guaranty of either thereof, or option or participation agreements relating to
any Unencumbered Asset Pool Property which does not provide for (i) a minimum
term of at least twelve (12) years, (ii) a market rate rent, (iii) "triple net"
terms with respect to all property related expenses, and (iv) liquidated damages
equal to the net present value (discounted at a factor no greater than the Prime
Rate) of the remaining rent thereunder through the stated maturity date (without
any stated obligation on the part of the landlord to miti-
<PAGE>
gate damages) in the event of a termination of the lease, without the prior
consent of the Administrative Agent and Documentation Agent, which consent shall
be given in such Agents' sole discretion.
(b) Except as permitted in subsection (c) below, the Borrower shall
not, nor shall the Borrower permit any Subsidiary to, amend, modify or
supplement any lease of any Unencumbered Asset Pool Properties, including,
without limitation, the four (4) leases existing as of the date hereof (each, a
"Master Lease") and the Qualified Development Property Leases, management
agreement, or guaranty relating to either thereof, where such amendment,
modification or supplement (i) substitutes or deletes the description of Real
Property Asset(s) subject to such lease or management agreement (other than to
add a parcel thereto) which are Unencumbered Asset Pool Properties (provided
that Borrower or Guarantor may, and may permit their Subsidiaries to, without
the requirement for consent under this Section 5.23(b), exchange, replace or
substitute Real Property Assets subject to any lease or management agreement
which are Unencumbered Asset Pool Properties, provided, however, that (A) in the
case of adding Unencumbered Asset Pool Properties to a lease, such Unencumbered
Asset Pool Properties are being transferred from any Vencor Subsidiaries to
Borrower and are set forth on Exhibit B hereto, and (B) in all cases other than
as set forth in the preceding clause (A), Borrower or such Subsidiary complies
with the provisions of Section 3.3 hereof), or (ii) materially adversely affects
the provisions for rent or other fees or charges payable thereunder, timing
provisions, the term, assignment and subletting provisions, triple net
provisions, personal property buy-back provisions, and license transfer
provisions, without the prior consent of the Administrative Agent and the
Documentation Agent; provided, however that where any of the foregoing
restrictions contained in clause (i) above relate to a Master Lease or Qualified
Development Property Lease, the prior consent required hereunder shall be that
of 100% of the Banks, not to be unreasonably withheld, and provided, further,
that where any of the foregoing restrictions contained in clause (ii) above
relate to a Master Lease or Qualified Development Property Lease, the prior
consent required hereunder shall be that of the Super-Majority Banks, not to be
unreasonably withheld. The Borrower shall not, nor permit any party thereto, to
terminate any Master Lease covering any Unencumbered Asset Pool Property
(including in the case of a default thereunder) without the prior consent of
100% of the Banks. Any deviation from the provisions of this Section 5.23 shall
require the consent of the Super-Majority Banks except where such deviation
concerns a matter hereunder requiring the consent of 100% of the Banks in which
event such deviation shall require the consent of 100% of the Banks.
<PAGE>
(c) Prior to the date of the issuance of commercial mortgage backed
securities as contemplated by and more particularly described in the Proxy
Statement, Unencumbered Asset Pool Properties with an aggregate value of at
least Forty Million Dollars ($40,000,000), as determined by Cushman & Wakefield
pursuant to the valuations thereof, dated March 13, 1998, shall be (or shall
have been) released from the Master Lease with the underlying Real Property
Assets that are subject to the mortgage loans that are so securitized, and the
other three Master Leases shall be amended to demise such Real Property Assets,
provided, that (i) at least Twenty Million Dollars ($20,000,000) in value, as
calculated above, of such Real Property Assets shall consist of nursing home
properties, (ii) such Real Property Assets shall be approved by the
Administrative Agent and the Documentation Agent, and (iii) the determination of
which of such Real Property Assets shall be demised under which of the three (3)
Master Leases shall be approved by the Administrative Agent and the
Documentation Agent.
(d) The Borrower shall only enter into a transaction involving the
issuance of commercial mortgage backed securities with respect to those Real
Property Assets demised under that certain Master Lease identified on Schedule
5.23 hereof and no other Master Lease without the prior consent of 100% of the
Banks.
(e) If the consent of the Borrower, Guarantor or any Vencor
Subsidiary is required under either Section 25.1 or Section 22.6 of any Master
Lease with respect to any assignment (whether in connection with a foreclosure
of a leasehold mortgage, assignment or transfer in lieu thereof, or an
assignment by the tenant thereunder, including as a result of a change of
control) of such Master Lease or subletting of any portion of the premises
demised under such Master Lease, the Borrower shall not consent thereto without
the prior consent of 100% of the Banks hereunder, which consent shall not be
unreasonably withheld provided that the proposed assignee or sublessee, as
applicable, meets the criteria set forth in Section 22.6(b) or Section 25.1.2 of
the Master Lease, as applicable.
Section 5.24. New Subsidiaries. Borrower covenants and agrees that upon
the formation of any corporation, partnership or other entity that is a
Subsidiary of the Borrower, or upon the acquisition of any stock, partnership or
other equity interests in any corporation, partnership or other entity, as
applicable, which would render such entity a Subsidiary of the Borrower, which
in either case owns or leases Unencumbered Asset Pool Properties or upon the
acquisition, or upon the acquisition or leasing by any existing Subsidiary of
any Unencumbered Asset Pool Properties (in each case, a "New Subsidiary"), then
Borrower shall promptly deliver to the Documentation
<PAGE>
Agent (i) a duly executed pledge of Borrower's interest in such New Subsidiary
in form substantially similar to the Pledge, but providing for the release of
such New Subsidiary from the terms of such pledge in the event such New
Subsidiary no longer owns or leases any Unencumbered Asset Pool Properties, (ii)
a duly executed guaranty by such Subsidiary in form substantially similar to the
Guaranty, (iii) if such New Subsidiary is a corporation, the original stock
certificates accompanied by stock powers duly executed in blank, and (iv) an
opinion of counsel of the Borrower with respect to the due authorization and
execution of the guaranty and the pledge agreement and the creation of a valid,
perfected security interest in the Borrower's interest in such New Subsidiary.
Section 5.25. Borrower's Restructuring. The Borrower and the Guarantor
will exercise all reasonable efforts to cause the Vencor Subsidiaries to obtain
all necessary governmental and other consents and to be merged or consolidated
in accordance with applicable statutory provisions therefor into or with
Guarantor and immediately thereafter to transfer all Real Property Assets owned
by such entities to the Borrower (or, in the case of leased Real Property
Assets, the leases therefor to be assigned to the Borrower) by July 1, 1998,
except to the extent that failures to obtain such consents and approvals could
not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
ARTICLE VI
DEFAULTS
Section 6.1. Events of Default. Each of the following shall constitute
an event of default under this Agreement (an "Event of Default"):
(a) the Borrower shall fail to pay when due any principal of any
Loan, or shall fail to reimburse the Fronting Bank for a drawing under a Letter
of Credit for which Borrower has, pursuant to Section 2.16(c) hereof, notified
the Administrative Agent and the Fronting Bank that it intends to reimburse the
Fronting Bank, or the Borrower shall fail to pay within three (3) Domestic
Business Days after the same is due any interest on any Loan or any fees or
other amounts payable hereunder;
(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.8 to 5.23, inclusive, subject to any applicable grace
periods set forth therein;
<PAGE>
(c) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause (a) or
(b) above) for 30 days after written notice thereof has been given to the
Borrower by the Administrative Agent;
(d) any representation, warranty, certification or statement made by
the Borrower or the Guarantor in this Agreement or in any certificate, financial
statement or other document delivered pursuant to this Agreement, or by the
Guarantor in the Guaranty, shall prove to have been incorrect in any material
respect when made (or deemed made);
(e) the Borrower, the Guarantor or any Subsidiary of either owning
Unencumbered Asset Pool Properties shall default in the payment when due
(whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise) of any amount owing in respect of any Debt or Debt guaranteed by the
Borrower, the Guarantor, or any Subsidiary owning Unencumbered Asset Pool
Properties (other than the Obligations) individually or in aggregate in an
outstanding principal amount in excess of $10,000,000, or with respect to any
Secured Debt of any Subsidiary other than one owning Unencumbered Asset Pool
Properties in excess of $25,000,000, and such default shall continue beyond the
giving of any required notice and the expiration of any applicable grace period
(as the same may be extended by the applicable lender) and such default shall
not be waived by the applicable lender (which waiver shall serve to reinstate
the applicable loan), or the Borrower or Guarantor shall default in the
performance or observance of any obligation or condition with respect to any
such Debt or any other event shall occur or condition exist beyond the giving of
any required notice and the expiration of any applicable grace period (as the
same may be extended by the applicable lender), if in any such case as a result
of such default, event or condition, the lender thereof shall accelerate the
maturity of any such Debt or shall permit (without any further requirement of
notice or lapse of time) the holder or holders thereof, or any trustee or agent
for such holders, to accelerate the maturity of any such Debt and such default
shall not be waived by the applicable lender (which waiver shall serve to
reinstate the applicable loan), or any such Debt shall become or be declared to
be due and payable prior to its stated maturity other than as a result of a
regularly scheduled payment;
(f) the Borrower, the Guarantor or any Subsidiary of either that owns
any Unencumbered Asset Pool Properties shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect to
it-
<PAGE>
self or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, or shall consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment for the
benefit of creditors, or shall fail generally to pay its debts as they become
due, or shall take any corporate action to authorize any of the foregoing;
(g) an involuntary case or other proceeding shall be commenced
against the Borrower, the Guarantor or any Subsidiary of either that owns any
Unencumbered Asset Pool Properties, seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against the Borrower, the Guarantor or any Subsidiary of
either that owns any Unencumbered Asset Pool Properties, under the federal
bankruptcy laws as now or hereafter in effect;
(h) the Borrower shall default in its obligations under any Loan
Document other than this Agreement beyond any applicable notice and grace
periods;
(i) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $1,000,000 which it shall have become
liable to pay under Title IV of ERISA, or notice of intent to terminate a
Material Plan shall be filed under Title IV of ERISA by any member of the ERISA
Group, any plan administrator or any combination of the foregoing, or the PBGC
shall institute proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or to cause a trustee to be appointed to administer any Material Plan, or a
condition shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be terminated, or there shall
occur a complete or partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans
which could cause one or more members of the ERISA Group to incur a current
payment obligation in excess of $1,000,000;
(j) one or more final nonappealable judgments or decrees in an
aggregate amount exceeding Five Million Dollars ($5,000,000) shall be entered by
a court or courts of competent jurisdiction against the Borrower or the
Guarantor (other
<PAGE>
than any judgment as to which, and only to the extent, a reputable insurance
company has acknowledged coverage of such claim in writing or related to those
obligations identified on Schedule 5.8 hereof as to which Vencor, Inc. has
assumed liability as primary obligor and as to which it has indemnified the
Borrower) and (i) any such judgments or decrees shall not be stayed, discharged,
paid, bonded or vacated within thirty (30) days (or bonded, vacated or satisfied
within thirty (30) after any stay is lifted) or (ii) enforcement proceedings
shall be commenced by any creditor on any such judgments or decrees;
(k) any Environmental Claim shall have been asserted against the
Borrower or any Environmental Affiliate and the same shall have been found to be
accurate, if such Environmental Claim is contested by Borrower or any
Environmental Affiliate, (ii) any release, emission, discharge or disposal of
any Material of Environmental Concern shall have occurred, and such event is
reasonably likely to form the basis of an Environmental Claim against the
Borrower or any Environmental Affiliate, or (iii) the Borrower or the
Environmental Affiliates shall have failed to obtain any Environmental Approval
necessary for the ownership, or operation of its business, property or assets or
any such Environmental Approval shall be revoked, terminated, or otherwise cease
to be in full force and effect, in the case of clauses (i), (ii) or (iii) above,
if the existence of such condition has had or is reasonably likely to have a
Material Adverse Effect;
(l) a Person or an Affiliated group of Persons shall acquire fifteen
percent (15%) or more of any class of the voting stock of the Guarantor and the
Borrower shall not have repaid the Loans in full, returned any outstanding
Letters of Credit and terminated this Agreement within forty-five (45) days
after such Person or group of Persons shall have acquired such percentage of
such stock;
(m) the Guarantor shall cease to be the sole general partner of the
Borrower or shall cease to own 90% or more of the equity interests in the
Borrower;
(n) an "Event of Default" (as defined in the Pledge) shall occur
under the Pledge;
(o) any representation, warranty, certification or statement made by
the Guarantor or any party identified as a guarantor under the Guaranty shall
prove to have been incorrect in any material respect when made (or deemed made);
and
<PAGE>
(p) at any time, for any reason the Borrower, the Guarantor or any
Subsidiary seeks to repudiate its obligations under any Loan Document.
Section 6.2. Rights and Remedies. Upon the occurrence of any Event of
Default described in Sections 6.1(f) or (g), the unpaid principal amount of, and
any and all accrued interest on, the Loans and any and all accrued fees and
other Obligations hereunder shall automatically become immediately due and
payable, with all additional interest from time to time accrued thereon and
without presentation, demand, or protest or other requirements of any kind
(including, without limitation, valuation and appraisement, diligence,
presentment, notice of intent to demand or accelerate and notice of
acceleration), all of which are hereby expressly waived by the Borrower and
Guarantor; and upon the occurrence and during the continuance of any other Event
of Default, the Documentation Agent may (and, upon the instructions of the
Required Banks, shall) exercise any of its rights and remedies hereunder and by
written notice to the Borrower, terminate the Tranche B Commitments, declare the
unpaid principal amount of and any and all accrued and unpaid interest on the
Loans and any and all accrued fees and other Obligations hereunder to be, and
the same shall thereupon be, immediately due and payable with all additional
interest from time to time accrued thereon and without presentation, demand, or
protest or other requirements of any kind other than as provided in the Loan
Documents (including, without limitation, valuation and appraisement, diligence,
presentment, and notice of intent to demand or accelerate), all of which are
hereby expressly waived by the Borrower.
Section 6.3. Notice of Default. Upon the occurrence of a Default or an
Event of Default, the Documentation Agent shall promptly give notice thereof to
the Banks and the Swing Lender. If the Documentation Agent shall not already
have given any notice to the Borrower under Section 6.1, the Documentation Agent
shall give notice to the Borrower under Section 6.1 promptly upon being
requested to do so by the Required Banks and shall thereupon notify all the
Banks thereof.
<PAGE>
Section 6.4. Actions in Respect of Letters of Credit. (a) If, at any
time and from time to time, any Letter of Credit shall have been issued
hereunder and an Event of Default shall have occurred and be continuing, then,
upon the occurrence and during the continuation thereof, the Documentation Agent
may, whether in addition to the taking by the Documentation Agent of any of the
actions described in this Article or otherwise, make a demand upon the Borrower
to, and forthwith upon such demand (but in any event within ten (10) days after
such demand) the Borrower shall, pay to the Documentation Agent, on behalf of
the Banks, in same day funds at the Documentation Agent's office designated in
such demand, for deposit in a special cash collateral account (the "Letter of
Credit Collateral Account") to be maintained in the name of the Documentation
Agent (on behalf of the Banks) and under its sole dominion and control at such
place as shall be designated by the Documentation Agent, an amount equal to the
amount of the Letter of Credit Usage under the Letters of Credit. Interest shall
accrue on the Letter of Credit Collateral Account at a rate equal to the rate on
overnight funds.
(b) The Borrower hereby pledges, assigns and grants to the
Documentation Agent, as agent for its benefit and the ratable benefit of the
Banks a lien on and a security interest in, the following collateral (the
"Letter of Credit Collateral"):
(i) the Letter of Credit Collateral Account, all cash
deposited therein and all certificates and instruments, if any, from time
to time representing or evidencing the Letter of Credit Collateral Account;
(ii) all notes, certificates of deposit and other instruments
from time to time hereafter delivered to or otherwise possessed by the
Administrative Agent or the Documentation Agent for or on behalf of the
Borrower in substitution for or in respect of any or all of the then
existing Letter of Credit Collateral;
(iii) all interest, dividends, cash, instruments and other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the then existing Letter of
Credit Collateral; and
(iv) to the extent not covered by the above clauses, all
proceeds of any or all of the foregoing Letter of Credit Collateral.
<PAGE>
The lien and security interest granted hereby secures the payment of all
obligations of the Borrower now or hereafter existing hereunder and under any
other Loan Document.
(c) The Borrower hereby authorizes the Documentation Agent for the
ratable benefit of the Banks to apply, from time to time after funds are
deposited in the Letter of Credit Collateral Account, funds then held in the
Letter of Credit Collateral Account to the payment of any amounts, in such order
as the Documentation Agent may elect, as shall have become due and payable by
the Borrower to the Banks in respect of the Letters of Credit.
(d) Neither the Borrower nor any Person claiming or acting on behalf
of or through the Borrower shall have any right to withdraw any of the funds
held in the Letter of Credit Collateral Account, except as provided in Section
6.4(h) hereof.
(e) The Borrower agrees that it will not (i) sell or otherwise
dispose of any interest in the Letter of Credit Collateral or (ii) create or
permit to exist any lien, security interest or other charge or encumbrance upon
or with respect to any of the Letter of Credit Collateral, except for the
security interest created by this Section 6.4.
(f) If any Event of Default shall have occurred and be continuing:
(i) The Documentation Agent may, in its sole discretion,
without notice to the Borrower except as required by law and at any
time from time to time, charge, set off or otherwise apply all or any
part of first, (x) amounts previously drawn on any Letter of Credit
that have not been reimbursed by the Borrower and (y) any Letter of
Credit Usage described in clause (ii) of the definition thereof that
are then due and payable and second, any other unpaid Obligations then
due and payable against the Letter of Credit Collateral Account or any
part thereof, in such order as the Documentation Agent shall elect.
The rights of the Documentation Agent under this Section 6.4 are in
addition to any rights and remedies which any Bank may have.
(ii) The Documentation Agent may also exercise, in its sole
discretion, in respect of the Letter of Credit Collateral Account, in
addition to the other rights and remedies provided herein or otherwise
available to it, all the rights and remedies of a secured party upon
de-
<PAGE>
fault under the Uniform Commercial Code in effect in the State of New
York at that time.
(g) The Documentation Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Letter of Credit
Collateral if the Letter of Credit Collateral is accorded treatment
substantially equal to that which the Documentation Agent accords its own
property, it being understood that, assuming such treatment, the Documentation
Agent shall not have any responsibility or liability with respect thereto.
(h) At such time as all Events of Default have been cured or waived
in writing, all amounts remaining in the Letter of Credit Collateral Account
shall be promptly returned to the Borrower. Absent such cure or written waiver,
any surplus of the funds held in the Letter of Credit Collateral Account and
remaining after payment in full of all of the Obligations of the Borrower
hereunder and under any other Loan Document after the Maturity Date shall be
paid to the Borrower or to whomsoever may be lawfully entitled to receive such
surplus.
ARTICLE VII
THE AGENTS
Section 7.1. Appointment and Authorization. (a) Each Bank irrevocably
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to the Administrative Agent by the terms hereof or
thereof, together with all such powers as are reasonably incidental thereto.
(b) Each Bank irrevocably appoints and authorizes the Documentation
Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement and the other Loan Documents as are delegated to the
Documentation Agent by the terms hereof or thereof, together with all such
powers as are reasonably incidental thereto.
<PAGE>
Section 7.2. Agent and Affiliates. NationsBank and Morgan shall have the
same rights and powers under this Agreement as any other Bank and may exercise
or refrain from exercising the same as though it were not the Administrative
Agent or Documentation Agent, respectively, and NationsBank and Morgan and their
affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with the Borrower or any subsidiary or affiliate of the
Borrower as if it were not the Administrative Agent or Documentation Agent,
respectively, hereunder, and the term "Bank" and "Banks" shall include each of
NationsBank and Morgan in their individual capacity.
Section 7.3. Action by Agents. The obligations of the Agents hereunder
are only those expressly set forth herein. Without limiting the generality of
the foregoing, the Agents shall not be required to take any action with respect
to any Default, except as expressly provided in Article VI.
Section 7.4. Consultation with Experts. The Agents may consult with
legal counsel (who may be counsel for the Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
Section 7.5. Liability of Agents. Neither the Agents nor any of their
affiliates nor any of their respective directors, officers, agents or employees
shall be liable for any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Required Banks or, where required
by the terms of this Agreement, all of the Banks, or (ii) in the absence of its
own gross negligence or willful misconduct. Neither the Agents nor any of their
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into or verify (i) any statement, warranty or
representation made in connection with this Agreement or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of the Borrower; (iii) the satisfaction of any condition specified in
Article III, except receipt of items required to be delivered to the Agents; or
(iv) the validity, effectiveness or genuineness of this Agreement, the other
Loan Documents or any other instrument or writing furnished in connection
herewith. The Agents shall not incur any liability by acting in reliance upon
any notice, consent, certificate, statement, or other writing (which may be a
bank wire, telex or similar writing) believed by it in good faith to be genuine
or to be signed by the proper party or parties.
<PAGE>
Section 7.6. Indemnification. Each Bank shall, ratably in accordance
with its Commitment (or, if the Commitments have expired, in accordance with
such Bank's outstanding Loans), indemnify each Agent, its affiliates and its
directors, officers, agents and employees (to the extent not reimbursed by the
Borrower) against any cost, expense (including counsel fees and disbursements),
claim, demand, action, loss or liability (except such as result from such
indemnitee's gross negligence or willful misconduct) that such indemnitees may
suffer or incur in connection with this Agreement, the other Loan Documents or
any action taken or omitted by such indemnitees hereunder.
Section 7.7. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agents or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agents or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
Section 7.8. Successor Agents. The Agents may resign at any time upon
thirty (30) days prior written notice by giving notice thereof to the Banks and
the Borrower. Upon any such resignation, the Required Banks shall have the
right to appoint successor Agents with the consent of the Borrower provided that
no Event of Default shall have occurred and be continuing. If no successor
Agent shall have been so appointed by the Required Banks, and shall have
accepted such appointment, within 30 days after the retiring Agent gives notice
of resignation, then the retiring Agent may, on behalf of the Banks, appoint a
successor Agent, which shall be a commercial bank organized or licensed under
the laws of the United States of America or of any State thereof and having a
combined capital and surplus of at least $50,000,000. Upon the acceptance of
its appointment as an Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations hereunder first accruing or arising after the effective date of
such retirement. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was the Agent.
<PAGE>
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
Section 8.1. Basis for Determining Interest Rate Inadequate or Unfair.
If on or prior to the first day of any Interest Period for any Euro-Dollar
Borrowing:
(a) the Administrative Agent is advised by the Reference Bank that
deposits in dollars (in the applicable amounts) are not being offered to the
Reference Bank in the relevant market for such Interest Period, or
(b) Banks having 50% or more of the aggregate amount of the affected
Loans advise the Administrative Agent that the London Interbank Offered Rate as
determined by the Administrative Agent will not adequately and fairly reflect
the cost to such Banks of funding their Euro-Dollar Loans for such Interest
Period, the Administrative Agent shall forthwith give notice thereof to the
Borrower and the Banks, whereupon until the Administrative Agent notifies the
Borrower that the circumstances giving rise to such suspension no longer exist,
the obligations of the Banks to make Euro-Dollar Loans, or to continue or
convert outstanding Loans as or into Euro-Dollar Loans, as the case may be,
shall be suspended, and each outstanding Euro-Dollar Loan shall be converted
into a Base Rate Loan on the last day of the then current Interest Period
applicable thereto. Unless the Borrower notifies the Administrative Agent at
least two (2) Domestic Business Days before the date of any Euro-Dollar
Borrowing for which a Notice of Borrowing has previously been given that it
elects not to borrow on such date, such Borrowing shall instead be made as a
Base Rate Borrowing.
Section 8.2. Illegality. If, after the date of this Agreement, the
adoption of any applicable law, rule or regulation, or any change in any
existing applicable law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Bank (or its Euro-Dollar Lending Office) with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency shall make it unlawful or impossible for any
Bank (or its Euro-Dollar Lending Office) to make, maintain or fund its Euro-
Dollar Loans or to participate in any Letter of Credit issued by the Fronting
Bank, or, with respect to the Fronting Bank, to issue any Letter of Credit, and
such Bank shall so notify the Administrative Agent, the Administrative Agent
shall forthwith give notice thereof to the other Banks and the Borrower,
whereupon
<PAGE>
until such Bank notifies the Borrower and the Administrative Agent that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Bank to make or convert Euro-Dollar Loans or to participate in any Letter
of Credit issued by the Fronting Bank or, with respect to the Fronting Bank, to
issue any Letter of Credit, shall be suspended. Before giving any notice to the
Administrative Agent pursuant to this Section, such Bank shall designate a
different Euro-Dollar Lending Office if such designation will avoid the need for
giving such notice and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. If such Bank shall determine that it may not
lawfully continue to maintain and fund any of its outstanding Euro-Dollar Loans
to maturity and shall so specify in such notice, the Borrower shall immediately
prepay in full the then outstanding principal amount of each such Euro-Dollar
Loan, together with accrued interest thereon. Concurrently with prepaying each
such Euro-Dollar Loan, the Borrower shall borrow a Base Rate Loan in an equal
principal amount from such Bank (on which interest and principal shall be
payable contemporaneously with the related Euro-Dollar Loans of the other
Banks), and such Bank shall make such a Base Rate Loan.
Section 8.3. Increased Cost and Reduced Return.
(a) If, after the date hereof, in the case of any Loan or any
obligation to make Loans the adoption of any applicable law, rule or regulation,
or any change in any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Bank (or its Applicable Lending Office) with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall impose, modify or deem
applicable any reserve (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System (but excluding
with respect to any Euro-Dollar Loan any such requirement reflected in an
applicable Euro-Dollar Reserve Percentage)), special deposit, insurance
assessment or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Bank (or its Applicable Lending Office)
or shall impose on any Bank (or its Applicable Lending Office) or on the London
interbank market any other condition affecting its Euro-Dollar Loans, its Note,
or its obligation to make Euro-Dollar Loans, and the result of any of the
foregoing is to increase the cost to such Bank (or its Applicable Lending
Office) of making or maintaining any Euro-Dollar Loan, or to reduce the amount
of any sum received or receivable by such Bank (or its Applicable Lending
Office) under this Agreement or under its Note with respect thereto, by an
amount deemed by such Bank to be material, then, within 15 days
<PAGE>
after demand by such Bank (with a copy to the Administrative Agent), which
demand shall be accompanied by a certificate showing, in reasonable detail, the
calculation of such amount or amounts, the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such increased
cost or reduction.
(b) If any Bank shall have determined that, after the date hereof,
the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any such law, rule or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on capital of such Bank (or its Parent) as a consequence of such Bank's
obligations hereunder to a level below that which such Bank (or its Parent)
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time, within 15 days after
demand by such Bank (with a copy to the Administrative Agent), which demand
shall be accompanied by a certificate showing, in reasonable detail, the
calculation of such amount or amounts, the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank (or its Parent) for
such reduction; provided that Borrower shall not be liable to any Bank in
respect of any such increased cost or reduction with respect to any period of
time more than three (3) months before Borrower receives the notice required by
the first sentence of Section 8.3(c) or more than six months before Borrower
receives the relevant certificate referred to in the second sentence of Section
8.3(c).
(c) Each Bank will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Bank to compensation pursuant to this
Section and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the judgment of such Bank, be otherwise disadvantageous to such
Bank. A certificate of any Bank claiming compensation under this Section and
setting forth the additional amount or amounts to be paid to it hereunder shall
be conclusive in the absence of manifest error. In determining such amount, such
Bank may use any reasonable averaging and attribution methods.
Section 8.4. Taxes.
<PAGE>
(a) Any and all payments by the Borrower to or for the account of any
Bank or the Administrative Agent hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any and all present or
future taxes, duties, levies, imposts, deductions, charges or withholdings, and
all liabilities with respect thereto, excluding, in the case of each Bank and
the Administrative Agent, taxes imposed on its net income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such Bank or the
Administrative Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Bank, taxes imposed on its income,
and franchise or similar taxes imposed on it, by the jurisdiction of such Bank's
Applicable Lending Office or any political subdivision thereof (and, if
different from the jurisdiction of such Bank's Applicable Lending Office, the
jurisdiction of the domicile of its Loans either established by the Bank
pursuant to Section 9.12 or determined by the applicable taxing authorities)(all
such non-excluded taxes, duties, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes"). If the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note or Letter of Credit or participation
therein to any Bank or the Administrative Agent, (i) the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 8.4) such
Bank, the Fronting Bank or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law and (iv) the Borrower shall
furnish to the Administrative Agent, at its address referred to in Section 9.1,
the original or a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes and any other excise or property taxes, or charges or
similar levies which arise from any payment made hereunder or under any Note or
Letter of Credit or participation therein or from the execution or delivery of,
or otherwise with respect to, this Agreement or any Note or Letter of Credit or
participation therein (hereinafter referred to as "Other Taxes").
(c) The Borrower agrees to indemnify each Bank, the Fronting Bank and
the Administrative Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section 8.4) paid by such Bank, the
Fronting Bank or
<PAGE>
the Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto. Any
payment required under this indemnification shall be made within 15 days from
the date such Bank, the Fronting Bank or the Administrative Agent (as the case
may be) makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and on
or prior to the date on which it becomes a Bank in the case of each other Bank,
and from time to time thereafter if requested in writing by the Borrower (but
only so long as such Bank remains lawfully able to do so), shall provide the
Borrower with (i) Internal Revenue Service form 1001 or 4224, as appropriate, or
any successor form prescribed by the Internal Revenue Service, certifying that
such Bank is entitled to benefits under an income tax treaty to which the United
States is a party which reduces the rate of withholding tax on payments of
interest under the Loan Documents or certifying that the income receivable
pursuant to the Loan Documents is effectively connected with the conduct of a
trade or business in the United States or (ii) if such Bank is not a "bank"
within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code,
Internal Revenue Service form W-8 or any successor form prescribed by the
Internal Revenue Service claiming complete exemption from, or a reduced rate of,
withholding tax on payments of interest under the Loan Documents. If the form
provided by a Bank at the time such Bank first became a party to this Agreement
or at any time thereafter (other than solely by reason of a change in United
States law or a change in the terms of any treaty to which the United States is
a party after the date hereof) indicates a United States interest withholding
tax rate in excess of zero (or would have indicated such a withholding tax rate
if such form had been submitted and completed accurately and completely and
either was not submitted or was not completed accurately and completely), or if
a Bank otherwise is subject to United States interest withholding tax at a rate
in excess of zero at any time for any reason (other than solely by reason of a
change in United States law or regulation or a change in any treaty to which the
United States is a party after the date hereof), withholding tax at such rate
shall be considered excluded from "Taxes" as defined in Section 8.4(a). In
addition, any amount that otherwise would be considered "Taxes" or "Other Taxes"
for purposes of this Section 8.4 shall be excluded therefrom if the Bank either
has transferred the domicile of its Loans pursuant to Section 9.12 or changed
the Applicable Lending Office with respect to such Loans and such amount would
not have been incurred had such transfer or change not been made.
<PAGE>
(e) For any period with respect to which a Bank has failed to provide
the Borrower with the appropriate form pursuant to Section 8.4(d) (unless such
failure is due to a change in treaty, law or regulation occurring subsequent to
the date on which a form originally was required to be provided), such Bank
shall not be entitled to indemnification under Section 8.4(a) with respect to
Taxes imposed by the United States; provided, however, that should a Bank, which
is otherwise exempt from or subject to a reduced rate of withholding tax, become
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrower shall take such steps as such Bank shall reasonably request to
assist such Bank to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for
the account of any Bank pursuant to this Section 8.4, then such Bank will change
the jurisdiction of its Applicable Lending Office so as to eliminate or reduce
any such additional payment which may thereafter accrue if such change, in the
judgment of such Bank, is not otherwise disadvantageous to such Bank.
(g) Without prejudice to the survival of any other agreement of
Borrower hereunder, the agreements and obligations of Borrower contained in this
Section 8.04 shall survive the payment in full of the principal of and interest
on the Loans.
Section 8.5. Base Rate Loans Substituted for Affected Euro-Dollar Loans.
(a) If (i) the obligation of any Bank to make, or convert outstanding Loans to,
Euro-Dollar Loans has been suspended pursuant to Sections 8.1 or 8.2 or (ii) any
Bank has demanded compensation under Section 8.3 or 8.4 with respect to its
Euro-Dollar Loans and the Borrower shall, by at least five Euro-Dollar Business
Days' prior notice to such Bank through the Administrative Agent, have elected
that the provisions of this Section shall apply to such Bank, then, unless and
until such Bank notifies the Borrower that the circumstances giving rise to such
suspension or demand for compensation no longer exist, all Loans which would
otherwise be made by such Bank as Euro-Dollar Loans shall be made instead as
Base Rate Loans (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Banks), and
after each of its Euro-Dollar Loans has been repaid, all payments of principal
which would otherwise be applied to repay such Euro-Dollar Loans shall be
applied to repay its Base Rate Loans instead.
(b) If any Bank notifies Borrower that the circumstances giving rise
to the notice referred to in paragraph (a) above no longer apply, the principal
amount of each such Base Rate Loan shall be converted into a Euro-Dollar Loan on
<PAGE>
the first day of the next succeeding Interest Period applicable to the related
Euro-Dollar Loans of the other Banks.
Section 8.6. Substitution of Banks. (a) If any Bank (a "Selling Bank")
gives notice pursuant to Section 8.2 that it is unlawful or impossible for such
Bank to make, maintain or fund its Euro-Dollar Loans or demands compensation
under Section 8.3 or 8.4, Borrower shall have the right, with the assistance of
the Documentation Agent and the Administrative Agent, to seek one or more banks
or other institutions (collectively, the "Purchasing Banks") willing to purchase
the outstanding Loans of the Selling Bank and its participation in any
outstanding Letters of Credit and to assume the Selling Bank's Commitment and
its participation in any outstanding Letters of Credit on the terms specified in
this Section 8.6; provided that any such purchase and assumption by a Purchasing
Bank that is not already a Bank shall be subject to the consent of the
Administrative Agent and each Fronting Bank (which consents shall not be
unreasonably withheld). The Selling Bank shall be obligated to sell its
outstanding Loans and its participation in any outstanding Letters of Credit to
such Purchasing Bank or Banks (which may include one or more of the Banks)
within fifteen (15) days after receiving notice from Borrower requiring it to do
so, at an aggregate price equal to the outstanding principal amount thereof plus
unpaid interest accrued thereon up to but excluding the date of sale.
(b) In connection with any such sale, and as a condition thereof,
Borrower shall pay to the Selling Bank all facility fees and letter of credit
fees accrued for its account hereunder to but excluding the date of such sale,
plus, if demanded by the Selling Bank at least two (2) Domestic Business Days
prior to such sale, (i) the amount of any compensation which would be due to the
Selling Bank under Section 2.13 if Borrower had prepaid the outstanding Euro-
Dollar Loans of the Selling Bank on the date of such sale and (ii) any
additional compensation accrued for its account under Section 2.13 to but
excluding said date.
(c) Upon any such sale, the Purchasing Bank or Banks shall assume the
Selling Bank's Commitment and its participation in any outstanding Letters of
Credit, and the Selling Bank shall be released from its obligations hereunder to
a corresponding extent. The Selling Bank, as assignor, such Purchasing Bank, as
assignee, the Administrative Agent and each Fronting Bank shall enter into an
appropriate assignment and assumption agreement, whereupon (x) if such
Purchasing Bank is already one of the Banks, its Commitment shall be increased
by an amount equal to its ratable share of the Selling Bank's Commitment and its
participations in the outstanding Letters of Credit shall be increased by its
ratable share of the Selling Bank's
<PAGE>
participations therein or (y) if such Purchasing Bank is not already one of the
Banks, it shall become a Bank party to this Agreement, shall be deemed to be an
Assignee hereunder and shall have all the rights and obligations of a Bank with
a Commitment equal to its ratable share of the Selling Bank's Commitment and
with a participation in the outstanding Letters of Credit equal to its ratable
share of the Selling Bank's participation in such Letters of Credit.
(d) Upon the consummation of any sale pursuant to this Section 8.6,
the Selling Bank, the Administrative Agent and Borrower shall make appropriate
arrangements so that, if required, each Purchasing Bank receives new Notes
complying with the provisions of Section 2.5 hereof.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, telex, facsimile
transmission or similar writing) and shall be given to such party: (x) in the
case of the Borrower or the Administrative Agent, at its address or telecopy
number set forth on the signature pages hereof, together with copies thereof, in
the case of the Borrower, to Sullivan & Cromwell, 125 Broad Street, New York,
New York 10004; Attention: Erik Lindauer, Esq.; Telephone: (212) 558-3548,
Telecopy: (212) 58-3588, and in the case of the Administrative Agent, to
Skadden, Arps, Slate, Meagher & Flom LLP, 919 Third Avenue, New York, New York
10022, Attention: Martha Feltenstein, Esq., Telephone: (212) 735-2272, Telecopy:
(212) 735-2000, (y) in the case of any Bank, at its address or telecopy number
set forth on the signature pages hereof or in its Administrative Questionnaire
or (z) in the case of any party, such other address or telecopy number as such
party may hereafter specify for the purpose by notice to the Administrative
Agent, the Banks and the Borrower. Each such notice, request or other
communication shall be effective (i) if given by telecopy, when such telecopy is
transmitted to the telecopy number specified in this Section, (ii) if given by
mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid or (iii) if given by any other
means, when delivered at the address specified in this Section; provided that
notices to the Administrative Agent under Article II or Article VIII shall not
be effective until received.
Section 9.2 No Waivers. No failure or delay by the Administrative
Agent, Documentation Agent or any Bank in exercising any right, power or
privilege here-
<PAGE>
under or under any Note shall operate as a waiver thereof nor shall any single
or partial exercise thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 9.3. Expenses; Indemnification.
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses
of the Administrative Agent and the Documentation Agent (including, without
limitation, reasonable fees and disbursements of special counsel Skadden, Arps,
Slate, Meagher & Flom LLP), in connection with the preparation and
administration of this Agreement, the Loan Documents and the documents and
instruments referred to therein, the syndication of the Loans, any waiver or
consent hereunder or any amendment or modification hereof or any Default or
alleged Default hereunder and (ii) if an Event of Default occurs, all out-of-
pocket expenses incurred by the Administrative Agent, the Documentation Agent
and each Bank, including, without limitation, reasonable fees and disbursements
of counsel (including, without limitation, the allocated costs and expenses of
internal counsel) for the Administrative Agent and the Documentation Agent, in
connection with the enforcement (including any "workout") of the Loan Documents
and the instruments referred to therein and such Event of Default and
collection, bankruptcy, insolvency and other enforcement proceedings resulting
therefrom.
(b) The Borrower agrees to indemnify the Administrative Agent, the
Documentation Agent and each Bank, their respective affiliates and the
respective directors, officers, agents and employees of the foregoing (each an
"Indemnitee") and hold each Indemnitee harmless from and against any and all
liabilities, losses, damages, costs and expenses of any kind, including, without
limitation, the reasonable fees and disbursements of counsel and settlements and
settlement costs, which may be incurred by such Indemnitee in connection with
any investigative, administrative or judicial proceeding (whether or not such
Indemnitee shall be designated a party thereto) that may at any time (including,
without limitation, at any time following the payment of the Obligations) be
imposed on, asserted against or incurred by any Indemnitee as a result of, or
arising out of, or in any way related to or by reason of, (i) any of the
transactions contemplated by the Loan Documents or the execution, delivery or
performance of any Loan Document (including, without limitation, the Borrower's
actual or proposed use of proceeds of the Loans, whether or not in compliance
with the provisions hereof), (ii) any violation by the Borrower or the
Environmental Affiliates of any applicable Environmental Law, (iii) any
Environmental Claim aris-
<PAGE>
ing out of the management, use, control, ownership or operation of property or
assets by the Borrower or any of the Environmental Affiliates, including,
without limitation, all on-site and off-site activities involving Material of
Environmental Concern, (iv) the breach of any environmental representation or
warranty set forth herein, (v) the grant to the Administrative Agent, the
Documentation Agent and the Banks of any Lien in any property or assets of the
Borrower or any stock or other equity interest in the Borrower, and (vi) the
exercise by the Administrative Agent, the Documentation Agent and the Banks of
their rights and remedies (including, without limitation, foreclosure) under any
agreements creating any such Lien (but excluding, as to any Indemnitee, any such
losses, liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements incurred solely by reason of (i) the
gross negligence or willful misconduct of such Indemnitee as finally determined
by a court of competent jurisdiction or (ii) any investigative, administrative
or judicial proceeding imposed or asserted against any Indemnitee by any bank
regulatory agency or by any equity holder of such Indemnitee). The Borrower's
obligations under this Section shall survive the termination of this Agreement
and the payment of the Obligations.
(c) The Borrower shall pay, and hold the Administrative Agent, the
Documentation Agent and each of the Banks harmless from and against, any and all
present and future U.S. stamp, recording, transfer and other similar foreclosure
related taxes with respect to the foregoing matters and hold the Administrative
Agent, the Documentation Agent and each Bank harmless from and against any and
all liabilities with respect to or resulting from any delay or omission (other
than to the extent attributable to such Bank) to pay such taxes.
Section 9.4. Sharing of Set-Offs. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the continuance of
any Event of Default, each Bank is hereby authorized at any time or from time to
time, without presentment, demand, protest or other notice of any kind to the
Borrower or to any other Person, any such notice being hereby expressly waived,
to set off and to appropriate and apply any and all deposits (general or
special, time or demand, provisional or final), other than deposits held for the
benefit of third parties, and any other indebtedness at any time held or owing
by such Bank (including, without limitation, by branches and agencies of such
Bank wherever located) to or for the credit or the account of the Borrower
against and on account of the Obligations of the Borrower then due and payable
to such Bank under this Agreement or under any of the other Loan Documents,
including, without limitation, all interests in Obligations purchased by such
Bank. Each
<PAGE>
Bank agrees that if it shall, by exercising any right of set-off or counterclaim
or otherwise, receive payment of a proportion of the aggregate amount of
principal and interest due with respect to any Note held by it or Letter of
Credit participated in by it, or, in the case of the Fronting Bank, Letter of
Credit issued by it, which is greater than the proportion received by any other
Bank or Letter of Credit issued or participated in by such other Bank, in
respect of the aggregate amount of principal and interest due with respect to
any Note held by such other Bank, the Bank receiving such proportionately
greater payment shall purchase such participations in the Notes held by the
other Banks or Letter of Credit issued or participated in by such other Bank,
and such other adjustments shall be made, as may be required so that all such
payments of principal and interest with respect to the Notes held by the Banks
or Letter of Credit issued or participate din by such other Banks shall be
shared by the Banks pro rata; provided that nothing in this Section shall impair
the right of any Bank to exercise any right of set-off or counterclaim it may
have and to apply the amount subject to such exercise to the payment of
indebtedness of the Borrower other than its indebtedness under the Notes or the
Letters of Credit. The Borrower agrees, to the fullest extent that it may
effectively do so under applicable law, that any holder of a participation in a
Note, whether or not acquired pursuant to the foregoing arrangements, may
exercise rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of the Borrower in the amount of such participation.
Section 9.5. Amendments and Waivers. Any provision of this Agreement
(including any of the financial covenants given by the Borrower pursuant to
Section 5.8), the Notes, the Letters of Credit or other Loan Documents may be
amended or waived if, but only if, such amendment or waiver is in writing and is
signed by the Borrower and the Required Banks (and, if the rights or duties of
the Administrative Agent are affected thereby, by the Administrative Agent);
provided that if such amendment or waiver affects only the Banks of any single
tranche, then only the Required Banks within that tranche shall be required to
sign such amendment or waiver; provided, further that no such amendment or
waiver shall (i) increase or decrease the Commitment of any Bank (except for a
ratable decrease in the Commitments of all Banks) or subject any Bank to any
additional obligation, without the prior written consent of each Bank affected
thereby, (ii) reduce the principal of or rate of interest on any Loan or any
fees specified herein without the prior written consent of each Bank affected
thereby, (iii) postpone the date fixed for any payment of principal of or
interest on any Loan or any fees hereunder or for any reduction or termination
of any Commitment, without the prior written consent of each Bank affected
thereby, (iv) increase any of the Tranche A Loan Amount, the Tranche B Loan
Amount, the
<PAGE>
Tranche C Loan Amount or the Tranche D Loan Amount unless signed by all the
Banks in the affected tranche, (v) release the Guarantor or any Subsidiary a
party to the Guaranty from its obligations under the Guaranty or otherwise
release any other collateral unless signed by all the Banks, (vi) change the
percentage of the Commitments or of the aggregate unpaid principal amount of the
Notes, or the number of Banks which shall be required for the Banks or any of
them to take any action under this Section or any other provisions of this
Agreement, (vii) amend or modify the provisions of Section 5.23 hereof or this
Section 9.5, or (viii) amend the definition of "Required Banks" or "Super-
Majority Banks", unless signed by all the Banks. In addition, no such amendment
or waiver shall, unless signed by the Swing Lender and each other Bank affected
thereby, increase the Swing Loan Commitment, postpone the date fixed for the
termination of the Swing Loan Commitment or otherwise affect any of its rights
or obligations hereunder relating to the Swing Loan Commitment or the Swing
Loans.
Section 9.6. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns, except that the Borrower may not assign or otherwise transfer any of
its rights under this Agreement or the other Loan Documents without the prior
written consent of all Banks. Any purported or attempted assignment or transfer
in contravention of the preceding sentence shall be null and void.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to the
Borrower and the Administrative Agent, such Bank shall remain responsible for
the performance of its obligations hereunder, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Bank
in connection with such Bank's rights and obligations under this Agreement. Any
agreement pursuant to which any Bank may grant such a participating interest
shall provide that such Bank shall retain the sole right and responsibility to
enforce the obligations of the Borrower hereunder including, without limitation,
the right to approve any amendment, modification or waiver of any provision of
this Agreement; provided that such participation agreement may provide that such
Bank will not agree to any modification, amendment or waiver of this Agreement
described in clause (i), (ii), (iii) or (iv) of Section 9.5 without the consent
of the Participant. The Borrower agrees that each Participant shall, to the
extent provided in
<PAGE>
its participation agreement, be entitled to the benefits of Article VIII with
respect to its participating interest. An assignment or other transfer which is
not permitted by subsection (c) or (d) below shall be given effect for purposes
of this Agreement only to the extent of a participating interest granted in
accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part of all (in the
case of each Assignee, equivalent to an initial Commitment of not less than Five
Million Dollars ($5,000,000) or such lesser amount as shall equal any Bank's
entire Commitment), of its rights and obligations under this Agreement as they
relate to any one or more tranches, the Notes and the other Loan Documents, and
such Assignee shall assume such rights and obligations, pursuant to an
Assignment and Assumption Agreement in substantially the form of Exhibit D
attached hereto executed by such Assignee and such transferor Bank, with (and
subject to) the subscribed consent of the Documentation Agent and the
Administrative Agent, which consent shall not be unreasonably withheld, and,
provided no Event of Default shall have occurred and be continuing, the
Borrower, which consent shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing, however, no consent shall be required in
connection with any assignment of rights and obligations hereunder as they
relate to any one or more tranches to a Person that is already a Bank hereunder,
to an affiliate of the assignor. Upon execution, delivery and recordation in the
Register of such instrument and payment by such Assignee to such transferor Bank
of an amount equal to the purchase price agreed between such transferor Bank and
such Assignee, such Assignee shall be a Bank party to this Agreement and shall
have all the rights and obligations of a Bank with a Commitment relating to the
tranche under which Assignee's Commitment was assigned as set forth in such
instrument of assumption, and the transferor Bank shall be released from its
obligations hereunder as they relate to the assigned tranche to a corresponding
extent, and no further consent or action by any party shall be required. Upon
the consummation of any assignment pursuant to this subsection (c), the
transferor Bank, the Administrative Agent and the Borrower shall make
appropriate arrangements so that, if required, a new Note or Notes are issued to
the Assignee. In connection with any such assignment, the transferor Bank shall
pay to the Administrative Agent an administrative fee for processing such
assignment in the amount of $2,500. If the Assignee is not incorporated under
the laws of the United States of America or a state thereof, it shall deliver to
the Borrower and the Administrative Agent certification as to exemption from
deduction or withholding of any United States federal income taxes in accordance
with Section 8.4.
<PAGE>
(d) The Administrative Agent (acting, for this purpose only, as agent
for the Borrower) shall maintain at its address at which notices are to be given
to it pursuant to the terms of Section 9.1 hereof a copy of each instrument of
assignment delivered to it pursuant to subsection (c) of this Section and a
register for the recordation of the names and addresses of the Banks, their
respective Commitments and principal amounts of their respective Loans
outstanding from time to time (the "Register"). The entries in the Register
shall be conclusive, in the absence of manifest error, and the Borrower, the
Guarantor, the Agents and the Banks may treat each person whose name is recorded
in the Register as a Bank for all purposes of this Agreement. The Register shall
be available for inspection by the Borrower or any Bank at any reasonable time
and from time to time upon reasonable prior notice.
(e) Any Bank may at any time assign all or any portion of its Loans
or its Note as security to a Federal Reserve Bank. Any Tranche C Bank or Tranche
D Bank may pledge any of its Tranche C Loans or Tranche D Loans, as applicable,
or its Note to any trustee with respect to a pool of collateralized loan
obligations which includes such Tranche C Loans or Tranche D Loans; provided
that any foreclosure or similar action by such trustee shall be subject to the
provisions of this Section concerning assignments and shall be void unless it
complies with such provisions. No such assignment or pledge shall release the
transferor Bank from its obligations hereunder.
(f) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Note and the Letter(s) of Credit participated in by
such Bank or, in the case of the Fronting Bank, issued by it, to a Federal
Reserve Bank. No such assignment shall release the transferor Bank from its
obligations hereunder.
(g) No Assignee, Participant or other transferee of any Bank's rights
shall be entitled to receive any greater payment under Section 8.3 or 8.4 than
such Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Borrower's prior written
consent or by reason of the provisions of Section 8.2, 8.3 or 8.4 requiring such
Bank to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
<PAGE>
Section 9.7. Governing Law; Submission to Jurisdiction.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
(b) Any legal action or proceeding with respect to this Agreement or
any other Loan Document and any action for enforcement of any judgment in
respect thereof may be brought in the courts of the State of New York or of the
United States of America for the Southern District of New York, and, by
execution and delivery of this Agreement, the Borrower hereby accepts for itself
and in respect of its property, generally and unconditionally, the non-exclusive
jurisdiction of the aforesaid courts and appellate courts from any thereof. The
Borrower irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the hand delivery, or
mailing of copies thereof by registered or certified mail, postage prepaid, to
the Borrower at its address set forth below. The Borrower hereby irrevocably
waives any objection which it may now or hereafter have to the laying of venue
of any of the aforesaid actions or proceedings arising out of or in connection
with this Agreement or any other Loan Document brought in the courts referred to
above and hereby further irrevocably waives and agrees not to plead or claim in
any such court that any such action or proceeding brought in any such court has
been brought in an inconvenient forum. Nothing herein shall affect the right of
the Administrative Agent, any Bank or any holder of a Note to serve process in
any other manner permitted by law or to commence legal proceedings or otherwise
proceed against the Borrower in any other jurisdiction.
Section 9.8. Marshaling; Recapture. Neither the Administrative Agent nor
any Bank shall be under any obligation to marshal any assets in favor of the
Borrower or any other party or against or in payment of any or all of the
Obligations. To the extent any Bank receives any payment by or on behalf of the
Borrower, which payment or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid to
the Borrower or its estate, trustee, receiver, custodian or any other party
under any bankruptcy law, state or federal law, common law or equitable cause,
then to the extent of such payment or repayment, the Obligation or part thereof
which has been paid, reduced or satisfied by the amount so repaid shall be
reinstated by the amount so repaid and shall be included within the
<PAGE>
liabilities of the Borrower to such Bank as of the date such initial payment,
reduction or satisfaction occurred.
Section 9.9. Counterparts; Integration; Effectiveness. This Agreement
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof. This
Agreement shall become effective upon receipt by the Documentation Agent of
counterparts hereof signed by each of the parties hereto (or, in the case of any
party as to which an executed counterpart shall not have been received, receipt
by the Documentation Agent in form satisfactory to it of telegraphic, telex or
other written confirmation from such party of execution of a counterpart hereof
by such party).
Section 9.10. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 9.11. Survival. All indemnities set forth herein shall survive
the execution and delivery of this Agreement and the other Loan Documents and
the making and repayment of the Loans hereunder.
Section 9.12. Domicile of Loans. Subject to the provisions of Article
VIII, each Bank may transfer and carry its Loans at, to or for the account of
any domestic or foreign branch office, subsidiary or affiliate of such Bank.
Section 9.13. Limitation of Liability. No claim may be made by the
Borrower or any other Person against the Administrative Agent, the Documentation
Agent or any Bank or the affiliates, directors, officers, employees, attorneys
or agent of any of them for any consequential or punitive damages in respect of
any claim for breach of contract or any other theory of liability arising out of
or related to the transactions contemplated by this Agreement or by the other
Loan Documents, or any act, omission or event occurring in connection therewith;
and the Borrower hereby waives, releases and agrees not to sue upon any claim
for any such damages, whether or not accrued and whether or not known or
suspected to exist in its favor.
<PAGE>
Section 9.14. Confidentiality Each Bank agrees to keep the information
contained herein and any other non-public information delivered or made
available by Borrower to it confidential and to use such information only for
the purpose of evaluating, approving, structuring and administering the Loans
and Letters of Credit; provided that nothing herein shall prevent any Bank from
disclosing such information (i) to persons employed or retained by such Bank who
are engaged or expected to be engaged in evaluating, approving, structuring or
administering the Loans and Letters of Credit, (ii) to any other person if
reasonably incidental to the administration of the Loans or Letters of
Credit,(iii) to any other Bank, (iv) pursuant to any subpoena or express
direction of any court or other authorized government agency or as otherwise
required by law, (v) upon the request or demand of any bank regulatory agency,
bank examiner or comparable authority, (vi) which has theretofore been publicly
disclosed or is otherwise available to such Bank on a non-confidential basis
from a source that is not, to its knowledge, subject to a confidentiality
agreement with Borrower, (vii) in connection with any litigation to which any
Bank or its subsidiaries or Parent may be a party, (viii) to the extent
necessary in connection with the exercise of any remedy hereunder, (ix) to such
Bank's affiliates, legal counsel and independent auditors and (x) to any actual
or proposed Participant or Assignee that has signed a written agreement
containing provisions substantially similar to this Section 9.14. Any Bank that
discloses confidential information to other Persons as contemplated by clause
(i), (ii) or (ix) of the foregoing proviso shall inform such other Persons of
the confidential nature of such information and shall instruct them to keep such
information confidential (except for disclosures permitted by the foregoing
proviso). Before any Bank discloses confidential information pursuant to clause
(iv) or (vii) of the foregoing proviso, such Bank shall use its best efforts ,
to the extent permitted by law, to advise Borrower of such proposed disclosure
so that Borrower may, in its discretion, and at its sole expense, seek an
appropriate protective order.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
VENTAS REALTY, LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Ventas, Inc., a Delaware corporation,
its general partner
By: /s/ Thomas T. Ladt
----------------------------------------
Name: Thomas T. Ladt
Title: President
Commitments
$[specify Tranches] MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as a Bank and as
Documentation Agent
By:
----------------------------------------
Name:
Title:
<PAGE>
Tranche A: $30,000,000 NATIONSBANK, N.A., as a Bank,
Tranche B: $18,750,000 Administrative Agent, and as
Tranche C: $15,000,000 Swing Lender
Tranche D: $258,125,000.00
By:
-----------------------------------
Name:
Title:
Domestic and Euro-Currency Lending
Office:
NationsBank, N.A.
101 North Tryon Street
NC1-001-15-04
Charlotte, NC 28255
Attention: Carol Lindsay
Telephone number: (704) 386-9372
Telecopy number: (704) 386-9923
<PAGE>
EXHIBIT A-1
TRANCHE ___ NOTE
$______________ New York, New York
_________, 19__
For value received, VENTAS REALTY, LIMITED PARTNERSHIP, a Delaware
limited partnership (the "Borrower") promises to pay to the order of
_______________ (the "Bank"), for the account of its Applicable Lending Office,
the unpaid principal amount of each Loan made by the Bank to the Borrower
pursuant to the Credit Agreement referred to below on the Maturity Date. The
Borrower promises to pay interest on the unpaid principal amount of each such
Loan on the dates and at the rate or rates provided for in the Credit Agreement.
All such payments of principal and interest shall be made in lawful money of the
United States in Federal or other immediately available funds at the office of
Administrative Agent under the Credit Agreement (as defined below).
All Loans made by the Bank, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Bank and, if the Bank so elects in connection with any transfer or enforcement
hereof, appropriate notations to evidence the foregoing information with respect
to each such Loan then outstanding may be endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Bank to make any such recordation
or endorsement shall not affect the obligations of the Borrower hereunder or
under the Credit Agreement.
This Note is one of the Notes referred to in the Credit Agreement,
dated as of April __, 1998, among the Borrower, the Banks party thereto, Morgan
Guaranty Trust Company of New York, as Documentation Agent, NationsBank, N.A.,
as Administrative Agent, the Senior Managing Agents identified therein, the
Managing Agents identified therein, and the Co-Agents identified therein (as the
same may be amended from time to time, the "Credit Agreement"). Terms defined
in the Credit Agreement are used herein with the same meanings. Reference is
made to the Credit Agreement for provisions for the prepayment hereof and the
acceleration of the maturity hereof.
<PAGE>
VENTAS REALTY, LIMITED PARTNERSHIP, a Delaware limited
partnership
By: Ventas, Inc., its general partner
By: _____________________
Name:
Title:
<PAGE>
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
______________________________________________________________________________
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
<PAGE>
EXHIBIT A-1
SWING NOTE
$______________ New York, New York
_________, 19__
For value received, VENTAS REALTY, LIMITED PARTNERSHIP, a Delaware
limited partnership (the "Borrower") promises to pay to the order of
NATIONSBANK, N.A. (the "Bank"), for the account of its Applicable Lending
Office, the unpaid principal amount of each Loan made by the Bank to the
Borrower pursuant to the Credit Agreement referred to below on the Maturity
Date. The Borrower promises to pay interest on the unpaid principal amount of
each such Loan on the dates and at the rate or rates provided for in the Credit
Agreement. All such payments of principal and interest shall be made in lawful
money of the United States in Federal or other immediately available funds at
the office of Administrative Agent under the Credit Agreement (as defined
below).
All Loans made by the Bank, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Bank and, if the Bank so elects in connection with any transfer or enforcement
hereof, appropriate notations to evidence the foregoing information with respect
to each such Loan then outstanding may be endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Bank to make any such recordation
or endorsement shall not affect the obligations of the Borrower hereunder or
under the Credit Agreement.
This Note is one of the Notes referred to in the Credit Agreement,
dated as of April __, 1998, among the Borrower, the Banks party thereto, Morgan
Guaranty Trust Company of New York, as Documentation Agent, NationsBank, N.A.,
as Administrative Agent, the Senior Managing Agents identified therein, the
Managing Agents identified therein, and the Co-Agents identified therein (as the
same may be amended from time to time, the "Credit Agreement"). Terms defined
in the Credit Agreement are used herein with the same meanings. Reference is
made to the
<PAGE>
Credit Agreement for provisions for the prepayment hereof and the acceleration
of the maturity hereof.
VENTAS REALTY, LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Ventas, Inc., its general partner
By:
-------------------------------------
Name:
Title:
<PAGE>
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
______________________________________________________________________________
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT B TO CREDIT AGREEMENT
- ------------------------------------------------------------------------------------------------------------------------------------
UNENCUMBERED PROPERTY-NURSING HOMES
- ------------------------------------------------------------------------------------------------------------------------------------
FAC. FACILITY
- ------------------------------------------------------------------------------------------------------------------------------------
NO. NAME ADDRESS CITY STATE ZIP
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C>
111 Rolling Hills Health Care Center 36255 St. Joseph Road New Albany IN 47150
- ------------------------------------------------------------------------------------------------------------------------------------
112 Royal Oaks Healthcare & Rehab Ctr. 3500 Maple Avenue Terre Haute IN 47804
- ------------------------------------------------------------------------------------------------------------------------------------
113 Southwood Health & Rehab Center 2222 Margaret Avenue Terre Haute IN 47802
- ------------------------------------------------------------------------------------------------------------------------------------
114 Arden Rehabilitation & Healthcare Ctr. 16357 Aurora Avenue North Seattle WA 98133
- ------------------------------------------------------------------------------------------------------------------------------------
116 Pettigrew Rehab. & Healthcare Ctr. 1515 West Pettigrew Street Durham NC 27705
- ------------------------------------------------------------------------------------------------------------------------------------
117 East Manor Medical Care Center 1524 East Avenue South Sarasota FL 34239
- ------------------------------------------------------------------------------------------------------------------------------------
124 Healthcare & Rehab Ctr of Sanford 950 Mellonville Avenue Sanford FL 32771
- ------------------------------------------------------------------------------------------------------------------------------------
125 Titusville Rehab. & Nursing Center 1705 Jess Parrish Court Titusville FL 32796
- ------------------------------------------------------------------------------------------------------------------------------------
127 Northwest Continuum Care Center 128 Beacon Hill Drive Longview WA 98632
- ------------------------------------------------------------------------------------------------------------------------------------
132 Madison Healthcare & Rehab Center 431 Larkin Springs Road Madison TN 37115
- ------------------------------------------------------------------------------------------------------------------------------------
136 LaSalle Healthcare Center 411 South LaSalle Street Durham NC 27705
- ------------------------------------------------------------------------------------------------------------------------------------
137 Sunnybrook Alzheimer's & HC Spec. 25 Sunnybrook Road Raleigh NC 27610
- ------------------------------------------------------------------------------------------------------------------------------------
138 Blue Ridge Rehab. & Healthcare Ctr. 91 Victoria Road Asheville NC 28801
- ------------------------------------------------------------------------------------------------------------------------------------
140 Wasatch Care Center 3430 Harrison Boulevard Ogden UT 84403
- ------------------------------------------------------------------------------------------------------------------------------------
143 Raleigh Rehab. & Healthcare Center 616 Wade Avenue Raleigh NC 27605
- ------------------------------------------------------------------------------------------------------------------------------------
146 Rose Manor Health Care Center 4230 North Roxboro Road Durham NC 27704
- ------------------------------------------------------------------------------------------------------------------------------------
150 Nob Hill Healthcare Center 1359 Pine Street San Francisco CA 94109
- ------------------------------------------------------------------------------------------------------------------------------------
155 Savannah Rehab. & Nursing Center 815 East 63rd Street Savannah GA 31405
- ------------------------------------------------------------------------------------------------------------------------------------
158 Bellingham Health Care & Rehab Svc 1200 Birchwood Avenue Bellingham WA 98225
- ------------------------------------------------------------------------------------------------------------------------------------
165 Rainier Vista Care Center 920 12th Ave., S.E. Puyallup WA 98372
- ------------------------------------------------------------------------------------------------------------------------------------
167 Canyonwood Nursing & Rehab. Ctr. 2120 Benton Drive Redding CA 96003
- ------------------------------------------------------------------------------------------------------------------------------------
168 Lakewood Healthcare Center 11411 Bridgeport Way S.W. Lakewood WA 98499
- ------------------------------------------------------------------------------------------------------------------------------------
180 Vencor of Vancouver HC & Rehab 400 East 33rd Street Vancouver WA 98663
- ------------------------------------------------------------------------------------------------------------------------------------
182 Cordova Rehab. & Nursing Center 955 Germantown Parkway Cordova TN 38018
- ------------------------------------------------------------------------------------------------------------------------------------
185 Heritage Health & Rehab. Center 3605 Y Street Vancouver WA 98663
- ------------------------------------------------------------------------------------------------------------------------------------
188 Cypress Pointe Rehab & HC Center 2006 South 16th Street Wilmington NC 28401
- ------------------------------------------------------------------------------------------------------------------------------------
190 Winston-Salem Rehab & HC Center 1900 West First Street Winston-Salem NC 27104
- ------------------------------------------------------------------------------------------------------------------------------------
191 Silas Creek Manor 3350 Silas Creek Parkway Winston-Salem NC 27103
- ------------------------------------------------------------------------------------------------------------------------------------
209 Valley View Health Care Center 333 West Mishawaka Road Elkhart IN 46517
- ------------------------------------------------------------------------------------------------------------------------------------
210 Californian Care Center 2211 Mt. Vernon Avenue Bakersfield CA 93306
- ------------------------------------------------------------------------------------------------------------------------------------
213 Wildwood Healthcare Center 7301 East 16th Street Indianapolis IN 46219
- ------------------------------------------------------------------------------------------------------------------------------------
216 Hillcrest Rehab. Care Center 1001 S. Hilton Boise ID 83705
- ------------------------------------------------------------------------------------------------------------------------------------
218 Cascade Care Center 2814 S. Indiana Avenue South Caldwell ID 83605
- ------------------------------------------------------------------------------------------------------------------------------------
219 Emmett Rehabilitation and Healthcare 714 North Butte Avenue Emmett ID 83617
- ------------------------------------------------------------------------------------------------------------------------------------
221 Lewiston Rehabilitation and Care Center 3315 8th Street Lewiston ID 83501
- ------------------------------------------------------------------------------------------------------------------------------------
222 Nampa Care Center 404 Horton Nampa ID 83651
- ------------------------------------------------------------------------------------------------------------------------------------
223 Weiser Rehabilitation and Care Center 331 East Park Weiser ID 83672
- ------------------------------------------------------------------------------------------------------------------------------------
225 Moscow Care Center 420 Rowe Road Moscow ID 83843
- ------------------------------------------------------------------------------------------------------------------------------------
230 Crossland Rehab. & Health Care Center 575 East 11000 South Sandy UT 84070
- ------------------------------------------------------------------------------------------------------------------------------------
245 Bay Pointe Nursing Pavilion 4201 31st Street South St. Petersburg FL 33712
- ------------------------------------------------------------------------------------------------------------------------------------
247 St. George Care and Rehab. Center 1032 East 100th South St. George UT 84770
- ------------------------------------------------------------------------------------------------------------------------------------
268 Colonial Oaks Rehab. Ctr-Ft. Myers 3250 Winkler Avenue Exten Ft. Myers FL 33916
- ------------------------------------------------------------------------------------------------------------------------------------
269 Meadowvale Health & Rehab. Center 1529 West Lancaster Street Bluffton IN 46714
- ------------------------------------------------------------------------------------------------------------------------------------
277 Rosewood Health Care Center 550 High Street Bowling Green KY 42101
- ------------------------------------------------------------------------------------------------------------------------------------
278 Oakview Nursing & Rehab. Center 10456 U.S. Highway 62 Calvert City KY 42029
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 1
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
FAC. FACILITY
- ------------------------------------------------------------------------------------------------------------------------------------
NO. NAME ADDRESS CITY STATE ZIP
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C>
279 Cedars of Lebanon Nursing Center 337 South Harrison Street Lebanon KY 40033
- ------------------------------------------------------------------------------------------------------------------------------------
280 Winchester Centre for Health/Rehab. 200 Glenway Road Winchester KY 40391
- ------------------------------------------------------------------------------------------------------------------------------------
281 Riverside Manor Health Care Highway 136 - Box 39 Calhoun KY 42327
- ------------------------------------------------------------------------------------------------------------------------------------
282 Maple Manor Healthcare Center 515 Greene Drive Greenville KY 42345
- ------------------------------------------------------------------------------------------------------------------------------------
286 Columbia Healthcare Facility 621 West Columbia Street Evansville IN 47710
- ------------------------------------------------------------------------------------------------------------------------------------
289 San Luis Medical & Rehab Center 2305 San Luis Place Green Bay WI 54204
- ------------------------------------------------------------------------------------------------------------------------------------
290 Bremen Health Care Center 316 Woodies Lane Bremen IN 46506
- ------------------------------------------------------------------------------------------------------------------------------------
294 Windsor Estates Health & Rehab. Ctr. 429 West Lincoln Road Kokomo IN 46902
- ------------------------------------------------------------------------------------------------------------------------------------
297 Marigarde-Sylvania Nursing Home Toledo OH
- ------------------------------------------------------------------------------------------------------------------------------------
(Owned facility leased to third party)
- ------------------------------------------------------------------------------------------------------------------------------------
302 Birchwood Care Center Marne MI
- ------------------------------------------------------------------------------------------------------------------------------------
(Owned facility leased to third party)
- ------------------------------------------------------------------------------------------------------------------------------------
307 Lincoln Nursing Center 1410 East Gaston Street Lincolnton NC 28092
- ------------------------------------------------------------------------------------------------------------------------------------
(Improvements owned under ground lease)
- ------------------------------------------------------------------------------------------------------------------------------------
320 Magnolia Gardens Care Center 1609 Trousdale Drive Burlingame CA 94010
- ------------------------------------------------------------------------------------------------------------------------------------
327 Laurel Ridge Rehab. & Nursing Center 174 Forrest Hill Street Jamaica Plain MA 02130
- ------------------------------------------------------------------------------------------------------------------------------------
335 Lawton Healthcare Center 1575 - 7th Avenue San Francisco CA 94122
- ------------------------------------------------------------------------------------------------------------------------------------
350 Valley Gardens Healthcare & Rehab. 1517 East Knickerbocker Drive Stockton CA 95210
- ------------------------------------------------------------------------------------------------------------------------------------
372 Carrollwood Care Center 15002 Hutchinson Road Tampa FL 33625
- ------------------------------------------------------------------------------------------------------------------------------------
406 Muncie Health Care & Rehab. 4301 North Walnut Muncie IN 47305
- ------------------------------------------------------------------------------------------------------------------------------------
407 Parkwood Health Care Center 1001 North Grant Street Lebanon IN 46052
- ------------------------------------------------------------------------------------------------------------------------------------
409 Mountain Valley Care and Rehab. 601 West Cameron Avenue Kellogg ID 83837
- ------------------------------------------------------------------------------------------------------------------------------------
411 Alta Vista Healthcare Center 9020 Garfield Avenue Riverside CA 92503
- ------------------------------------------------------------------------------------------------------------------------------------
416 Park Place Health Care Center 1500 32nd Street South Great Falls MT 59403
- ------------------------------------------------------------------------------------------------------------------------------------
420 Maywood Acres Healthcare Center 2641 South C. Street Oxnard CA 93033
- ------------------------------------------------------------------------------------------------------------------------------------
433 Parkview Acres Care & Rehab Center 200 Oregon Street Dillon MT 59725
- ------------------------------------------------------------------------------------------------------------------------------------
436 Valley Healthcare & Rehab. Center 5545 East Lee Street Tucson AZ 85712
- ------------------------------------------------------------------------------------------------------------------------------------
441 Mountain Towers Healthcare & Rehab. 3128 Boxeider Drive Cheyenne WY 82001
- ------------------------------------------------------------------------------------------------------------------------------------
452 Sunnyside Care Center 4515 Sunnyside Road, S.E. Salem OR 97302
- ------------------------------------------------------------------------------------------------------------------------------------
453 Medford Rehab. & Healthcare Center 625 Stevens Street Medford OR 97504
- ------------------------------------------------------------------------------------------------------------------------------------
461 Edmonds Rehab. & Healthcare Center 21008 76th Avenue West Edmonds WA 98026
- ------------------------------------------------------------------------------------------------------------------------------------
462 Queen Anne Healthcare 2717 Dexter Avenue North Seattle WA 98109
- ------------------------------------------------------------------------------------------------------------------------------------
481 South Central Wyoming Healthcare & Rehab 542 - 16th Street Rawlins WY 82301
- ------------------------------------------------------------------------------------------------------------------------------------
482 Wind River Healthcare & Rehab. Center 1002 Forest Drive Riverton WY 82501
- ------------------------------------------------------------------------------------------------------------------------------------
483 Sage View Care Center 1325 Sage Street Rock Springs WY 82901
- ------------------------------------------------------------------------------------------------------------------------------------
501 Blue Hills Alzheimer's Care Center 1044 Park Street Stoughton MA 02072
- ------------------------------------------------------------------------------------------------------------------------------------
503 Brigham Manor Nursing & Rehab. Center 77 High Street Newburyport MA 01950
- ------------------------------------------------------------------------------------------------------------------------------------
506 Presentation Nursing & Rehab. Center 10 Bellamy Street Brighton MA 02135
- ------------------------------------------------------------------------------------------------------------------------------------
507 Country Manor Rehab. & Nursing Center 180 Low Street Newburyport MA 01950
- ------------------------------------------------------------------------------------------------------------------------------------
508 Crawford Skilled Nursing & Rehab. Center 273 Oak Grove Avenue Fall River MA 02723
- ------------------------------------------------------------------------------------------------------------------------------------
513 Hallmark Nursing & Rehab. Center 1123 Rockdale Avenue New Bedord MA 02740
- ------------------------------------------------------------------------------------------------------------------------------------
514 Sachem Nursing & Rehab. Center 66 Central Street East Bridgewater MA 02333
- ------------------------------------------------------------------------------------------------------------------------------------
516 Hammersmith House Nursing Care Center 73 Chestnut Street Saugus MA 01906
- ------------------------------------------------------------------------------------------------------------------------------------
517 Oakwood Rehab. & Nursing Center 11 Pontiac Avenue Webster MA 01570
- ------------------------------------------------------------------------------------------------------------------------------------
518 Timberlyn Heights Nursing & Alz. Center 320 Maple Avenue Great Barrington MA 01230
- ------------------------------------------------------------------------------------------------------------------------------------
523 Star of David Nursing & Rehab/Alz Center 1100 VFW Parkway West Roxbury MA 02132
- ------------------------------------------------------------------------------------------------------------------------------------
525 La Veta Healthcare Center 920 West La Veta Orange CA 92868
- ------------------------------------------------------------------------------------------------------------------------------------
(improvements owned under ground lease)
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 2
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
FAC. FACILITY
- ------------------------------------------------------------------------------------------------------------------------------------
NO. NAME ADDRESS CITY STATE ZIP
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
526 Brittany Healthcare Center 168 West Central Street Natick MA 01760
- ------------------------------------------------------------------------------------------------------------------------------------
527 Briarwood Health Care Nursing Center 150 Lincoln Street Needham MA 02192
- ------------------------------------------------------------------------------------------------------------------------------------
528 Westridge Healthcare Center 121 Northboro Road Marlborough MA 01752
- ------------------------------------------------------------------------------------------------------------------------------------
529 Bolton Manor Nursing Home 400 Bolton Street Marborough MA 07152
- ------------------------------------------------------------------------------------------------------------------------------------
532 Hillcrest Nursing Home 94 Summer Street Fitchburg MA 01420
- ------------------------------------------------------------------------------------------------------------------------------------
534 Country Gardens Sk. Nursing & Rehab. 2045 Grand Army Highway Swansea MA 02777
- ------------------------------------------------------------------------------------------------------------------------------------
537 Qunicy Rehab. & Nursing Center 11 McGrath Highway Quincy MA 02169
- ------------------------------------------------------------------------------------------------------------------------------------
538 West Roxbury Manor 5060 Washington Street West Roxbury MA 02132
- ------------------------------------------------------------------------------------------------------------------------------------
539 Newton and Wellesley Alzheimer Center 694 Worcester Street Wellesley MA 02181
- ------------------------------------------------------------------------------------------------------------------------------------
542 Den-Mar Rehab. & Nursing Center 44 South Street Rockport MA 01966
- ------------------------------------------------------------------------------------------------------------------------------------
(improvements owned under ground lease)
- ------------------------------------------------------------------------------------------------------------------------------------
544 Augusta Rehabilitation Center 187 Eastern Avenue Augusta ME 04330
- ------------------------------------------------------------------------------------------------------------------------------------
545 Eastside Rehab. and Living Center 516 Mount Hope Avenue Bangor ME 04401
- ------------------------------------------------------------------------------------------------------------------------------------
546 Winship Green Nursing Center 51 Winship Street Bath ME 04530
- ------------------------------------------------------------------------------------------------------------------------------------
547 Brewer Rehabilitation & Living Center 74 Parkway South Brewer ME 04412
- ------------------------------------------------------------------------------------------------------------------------------------
549 Kennebunk Nursing Center 158 Ross Road Kennebunk ME 04043
- ------------------------------------------------------------------------------------------------------------------------------------
550 Norway Rehabilitation & Living Center 24 Marion Avenue Norway ME 04268
- ------------------------------------------------------------------------------------------------------------------------------------
552 Shore Village Rehab. & Nursing Center 201 Camden Street Rockland ME 04841
- ------------------------------------------------------------------------------------------------------------------------------------
554 Westgate Manor 750 Union Street Bangor ME 04401
- ------------------------------------------------------------------------------------------------------------------------------------
555 Brentwood Rehab. & Nursing Center 122 Portland Street Yarmouth ME 04096
- ------------------------------------------------------------------------------------------------------------------------------------
558 Fieldcrest Manor Nursing Home 126 Depot Street Waldoboro ME 04572
- ------------------------------------------------------------------------------------------------------------------------------------
559 Birchwood Terrace Healthcare 43 Starr Farm Road Burlington VT 05401
- ------------------------------------------------------------------------------------------------------------------------------------
(Improvements owned under ground lease)
- ------------------------------------------------------------------------------------------------------------------------------------
560 Franklin Woods Health Care Center 2770 Clime Road Columbus OH 42332
- ------------------------------------------------------------------------------------------------------------------------------------
562 Andrew House Healthcare 66 Clinic Drive New Britain CT 06051
- ------------------------------------------------------------------------------------------------------------------------------------
563 Camelot Nursing & Rehab. Center 89 Viets Street New London CT 06320
- ------------------------------------------------------------------------------------------------------------------------------------
565 Hamilton Rehab. & Healthcare Center 50 Palmer Street Norwich CT 06360
- ------------------------------------------------------------------------------------------------------------------------------------
566 Windsor Rehab. & Healthcare Center 581 Poquonock Avenue Windsor CT 06095
- ------------------------------------------------------------------------------------------------------------------------------------
567 Nutmeg Pavilion Healthcare 78 Viets Street Extension New London CT 06320
- ------------------------------------------------------------------------------------------------------------------------------------
568 Parkway Pavilion Healthcare 1157 Enfield Street Enfield CT 06082
- ------------------------------------------------------------------------------------------------------------------------------------
569 Chillicothe Nursing & Rehab. Center 60 Marietta Road Chillecothe OH 45601
- ------------------------------------------------------------------------------------------------------------------------------------
570 Pickerington Nursing & Rehab. Center 1300 Hill Road North Pickerington OH 43147
- ------------------------------------------------------------------------------------------------------------------------------------
571 Logan Health Care Center 300 Arlington Avenue Logan OH 43138
- ------------------------------------------------------------------------------------------------------------------------------------
572 Winchester Place Nsg. & Rehab. Center 36 Lehman Drive Canal Winchester OH 43110
- ------------------------------------------------------------------------------------------------------------------------------------
573 Eagle Pond Rehab. & Living Center One Love Lane South Dennis MA 02660
- ------------------------------------------------------------------------------------------------------------------------------------
577 Minerva Park Nursing & Rehab. Center 5460 Cleveland Avenue Columbus OH 43231
- ------------------------------------------------------------------------------------------------------------------------------------
578 West Lafayette Rehab & Nursing Center 620 East Main Street West Lafayette OH 43845
- ------------------------------------------------------------------------------------------------------------------------------------
581 Blueberry Hill Healthcare 75 Brimbal Avenue Beverly MA 01915
- ------------------------------------------------------------------------------------------------------------------------------------
582 Colony House Nursing & Rehab. Center 277 Washington Street Abington MA 02351
- ------------------------------------------------------------------------------------------------------------------------------------
583 Embassy House Sk. Nursing & Rehab. 2 Beaumont Avenue Brockton MA 02402
- ------------------------------------------------------------------------------------------------------------------------------------
584 Franklin Sk. Nursing & Rehab. Center 130 Chestnut Street Franklin MA 02038
- ------------------------------------------------------------------------------------------------------------------------------------
585 Great Barrington Rehab. & Nursing Ctr. 148 Maple Avenue Great Barrington MA 01230
- ------------------------------------------------------------------------------------------------------------------------------------
587 River Terrace 1675 Main Street Lancaster MA 01523
- ------------------------------------------------------------------------------------------------------------------------------------
588 Walden Rehab. & Nursing Center 785 Main Street Concord MA 01742
- ------------------------------------------------------------------------------------------------------------------------------------
591 Dover Rehab. & Living Center 307 Plaza Drive Dover NH 03820
- ------------------------------------------------------------------------------------------------------------------------------------
592 Greenbriar Terrace Healthcare 55 Harris Road Nashua NH 03062
- ------------------------------------------------------------------------------------------------------------------------------------
(Improvements owned under ground lease)
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 3
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
FAC. FACILITY
- ------------------------------------------------------------------------------------------------------------------------------------
NO. NAME ADDRESS CITY STATE ZIP
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
593 Hanover Terrace Healthcare 53 Lyme Road Hanover NH 03755
- ------------------------------------------------------------------------------------------------------------------------------------
634 Cambridge Health & Rehab. Center 1471 Wills Creek Valley Drive Cambridge OH 43725
- ------------------------------------------------------------------------------------------------------------------------------------
635 Coshocton Health & Rehab. Center 100 South Whitewoman Street Coshocton OH 43812
- ------------------------------------------------------------------------------------------------------------------------------------
637 Evergreen Woods Health & Rehab. 7045 Evergreen Woods Tr. Springhill FL 34608
- ------------------------------------------------------------------------------------------------------------------------------------
640 Las Vegas Healthcare & Rehab. Center 2832 South Maryland Parkway Las Vegas NV 89109
- ------------------------------------------------------------------------------------------------------------------------------------
641 Torrey Pines Care Center 1701 South Torrey Pines Drive Las Vegas NV 89012
- ------------------------------------------------------------------------------------------------------------------------------------
642 Hillhaven Convalescent Center Las Vegas NV
- ------------------------------------------------------------------------------------------------------------------------------------
(Owned facility leased to third party)
- ------------------------------------------------------------------------------------------------------------------------------------
645 Specialty Care of Marietta 26 Tower Road Marietta GA 30060
- ------------------------------------------------------------------------------------------------------------------------------------
655 Federal Heights Rehab. & Nsg. Center 41 South Ninth Street Salt Lake City UT 84102
- ------------------------------------------------------------------------------------------------------------------------------------
660 Savannah Specialty Care Center 11800 Abercom Street Savannah GA 31419
- ------------------------------------------------------------------------------------------------------------------------------------
690 Wasatch Valley Rehabilitation 2200 East 3300 South Salt Lake City UT 84109
- ------------------------------------------------------------------------------------------------------------------------------------
694 Wedgewood Healthcare Center 101 Potters Lane Clarksville IN 47129
- ------------------------------------------------------------------------------------------------------------------------------------
695 Grayling Health Care Center Grayling MI
- ------------------------------------------------------------------------------------------------------------------------------------
(Owned facility leased to third party)
- ------------------------------------------------------------------------------------------------------------------------------------
704 Guardian Care of Roanoke Rapids 305 Fourteenth Street Roanoke Rapids NC 27870
- ------------------------------------------------------------------------------------------------------------------------------------
706 Guardian Care of Henderson 280 South Beckford Drive Henderson NC 27536
- ------------------------------------------------------------------------------------------------------------------------------------
707 Rehab. & Nursing Center of Monroe 1212 Sunset Drive East Monroe NC 28112
- ------------------------------------------------------------------------------------------------------------------------------------
711 Guardian Care of Kinston 907 Cunningham Road Kinston NC 28501
- ------------------------------------------------------------------------------------------------------------------------------------
713 Guardian Care of Zebulon 509 West Gannon Avenue Zebulon NC 27597
- ------------------------------------------------------------------------------------------------------------------------------------
723 Guardian Care of Rocky Mount 160 Winstead Avenue Rocky Mount NC 27804
- ------------------------------------------------------------------------------------------------------------------------------------
(Improvements owned under ground lease)
- ------------------------------------------------------------------------------------------------------------------------------------
724 Rehab. & Health Care of Gastonia 416 North Highland Avenue Gastonia NC 28052
- ------------------------------------------------------------------------------------------------------------------------------------
726 Guardian Care of Elizabeth City 901 Halstead Boulevard Elizabeth City NC 17909
- ------------------------------------------------------------------------------------------------------------------------------------
738 Bay View Nursing & Rehab. Center 516 Willow Street Alameda CA 94501
- ------------------------------------------------------------------------------------------------------------------------------------
742 Sonoran Rehab. & Care Center 4202 North 20th Avenue Phoenix AZ 85015
- ------------------------------------------------------------------------------------------------------------------------------------
743 Desert Life Rehab. & Care Center 1919 W. Medical Street Tucson AZ 85704
- ------------------------------------------------------------------------------------------------------------------------------------
744 Cherry Hills Health Care Center 3575 South Washington Street Englewood CO 80110
- ------------------------------------------------------------------------------------------------------------------------------------
745 Aurora Care Center 10201 East Third Avenue Aurora CO 80010
- ------------------------------------------------------------------------------------------------------------------------------------
746 Homestead Health Care & Rehab. Center 4735 South 54th Street Lincoln NE 68516
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
LEASED FACILITY
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
764 Woodside Convalescent Center 501 8th Avenue Southeast Rochester MN 55904
- ------------------------------------------------------------------------------------------------------------------------------------
(Owned property leased to thrid party)
- ------------------------------------------------------------------------------------------------------------------------------------
765 Eastview Mecial & Rehab. Center 729 Park Street Antigo WI 54409
- ------------------------------------------------------------------------------------------------------------------------------------
766 Colonial Manor Medical & Rehab Center 1010 East Wausau Avenue Wausau WI 54403
- ------------------------------------------------------------------------------------------------------------------------------------
767 Colony Oaks Care Center 601 Briarcliff Drive Appleton WI 54915
- ------------------------------------------------------------------------------------------------------------------------------------
769 North Ridge Med. & Rehab. Center 1445 North 7th Street Manitowoc WI 54220
- ------------------------------------------------------------------------------------------------------------------------------------
770 Vallhaven Care Center 125 Byrd Avenue Neenah WI 54956
- ------------------------------------------------------------------------------------------------------------------------------------
771 Kennedy Park Medical & Rehab. Center 6001 Alderson Street Schofield WI 54476
- ------------------------------------------------------------------------------------------------------------------------------------
772 Family Heritage Med. & Rehab. Center 130 Strawberry Lane Wisconsin Rapid WI 54494
- ------------------------------------------------------------------------------------------------------------------------------------
773 Mt. Carmel Medical & Rehab. Center 677 East State Street Burlington WI 53105
- ------------------------------------------------------------------------------------------------------------------------------------
774 Mt. Carmel Health & Rehab. Center 5700 West Layton Avenue Milwaukee WI 53220
- ------------------------------------------------------------------------------------------------------------------------------------
775 Sheridan Medical Complex 8400 Sheridan Road Kenosha WI 53140
- ------------------------------------------------------------------------------------------------------------------------------------
776 Woodstock Health & Rehab. Center 3415 Sheridan Road Kenosha WI 53140
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 4
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
FAC. FACILITY
- ------------------------------------------------------------------------------------------------------------------------------------
NO. NAME ADDRESS CITY STATE ZIP
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
777 Clara Barton Terrace Flint MI
- ------------------------------------------------------------------------------------------------------------------------------------
(Owned facility leased to third party)
- ------------------------------------------------------------------------------------------------------------------------------------
778 Mary Avenue Care Center Lansing MI
- ------------------------------------------------------------------------------------------------------------------------------------
(Owned facility leased to third party)
- ------------------------------------------------------------------------------------------------------------------------------------
779 Westview Nursing & Rehab. Center 1510 Clinic Drive Bedford IN 47421
- ------------------------------------------------------------------------------------------------------------------------------------
780 Columbus Health & Rehab. Center 2100 Midway Columbus IN 47201
- ------------------------------------------------------------------------------------------------------------------------------------
782 Danville Centre for Health & Rehab. 642 North 3rd Street Danville KY 40422
- ------------------------------------------------------------------------------------------------------------------------------------
783 Lexington Centre for Health & Rehab. 353 Waller Avenue Lexington KY 40504
- ------------------------------------------------------------------------------------------------------------------------------------
784 North Centre for Health & Rehab. 6000 Hunting Road Louisville KY 40222
- ------------------------------------------------------------------------------------------------------------------------------------
785 Hillcrest Health Care Center 3740 Old Hartford Road Owensboro KY 42303
- ------------------------------------------------------------------------------------------------------------------------------------
787 Woodland Terrace Health Care Fac. 1117 Woodland Drive Elizabethtown KY 42701
- ------------------------------------------------------------------------------------------------------------------------------------
791 Rehab. & Healthcare Ctr. of Huntsville 105 Teakwood Drive Huntsville AL 35801
- ------------------------------------------------------------------------------------------------------------------------------------
796 Hacienda Rehab. & Care Center 660 S. Coronado Drive Sierra Vista AZ 85635
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
LEASED FACILITY WITH HUD MORTGAGE BEING DEFEASED
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
802 Bridgepark Ctr. for Rehab. & Nsg. Sv. 145 Olive Street Akron OH 44310
- ------------------------------------------------------------------------------------------------------------------------------------
804 Rehab. & Healthc. Ctr. of Birmingham 2728 Tenth Avenue South Birmingham AL 35205
- ------------------------------------------------------------------------------------------------------------------------------------
(improvements owned under ground lease)
- ------------------------------------------------------------------------------------------------------------------------------------
806 Chapel Hill Rehab. & Healthcare Ctr. 1602 East Franklin Street Chapel Hill NC 27514
- ------------------------------------------------------------------------------------------------------------------------------------
822 Primacy Healthcare & Rehab. Ctr. 6025 Primacy Parkway Memphis TN 38119
- ------------------------------------------------------------------------------------------------------------------------------------
824 Rehab. & Healthcare Ctr. of Mobile 1758 Spring Hill Avenue Mobile AL 36607
- ------------------------------------------------------------------------------------------------------------------------------------
(Improvements owned under ground lease)
- ------------------------------------------------------------------------------------------------------------------------------------
825 Nansemond Pointe Rehab. & HC Ctr. 200 West Constance Road Suffolk VA 23434
- ------------------------------------------------------------------------------------------------------------------------------------
826 Harbour Pointe Med. & Rehab. Centre 1005 Hampton Boulevard Norfolk VA 23507
- ------------------------------------------------------------------------------------------------------------------------------------
829 River Pointe Rehab. & Healthcare Center 4142 Bonney Road Virginia Beach VA 23452
- ------------------------------------------------------------------------------------------------------------------------------------
836 Rehab. & Healthcare Ctr. of Tampa 4411 North Habana Avenue Tampa FL 33614
- ------------------------------------------------------------------------------------------------------------------------------------
837 Rehab. & Health Ctr. of Cape Coral 2629 Del Prado Boulevard Cape Coral FL 33904
- ------------------------------------------------------------------------------------------------------------------------------------
842 Bay Pointe Medical & Rehab. Centre 1148 First Colonial Road Virginia Beach VA 23454
- ------------------------------------------------------------------------------------------------------------------------------------
851 Villa Campana Health Center 6651 East Carondelet Drive Tucson AZ 85710
- ------------------------------------------------------------------------------------------------------------------------------------
853 Kachina Point Health Care & Rehab. 505 Jacks Canyon Road Sedona AZ 86351
- ------------------------------------------------------------------------------------------------------------------------------------
859 Castle Garden Care Center 401 Malley Drive Northglenn CO 80233
- ------------------------------------------------------------------------------------------------------------------------------------
864 Harrodsburg Health Care Center 853 Lexington Road Harrodsburg KY 40330
- ------------------------------------------------------------------------------------------------------------------------------------
868 Lebanon Country Manor 700 Monroe Road Lebanon OH 45036
- ------------------------------------------------------------------------------------------------------------------------------------
873 Brighton Care Center 2025 East Egbert Street Brighton CO 80601
- ------------------------------------------------------------------------------------------------------------------------------------
884 Masters Health Care Center 278 Dry Valley Road Algood TN 38506
- ------------------------------------------------------------------------------------------------------------------------------------
922 Windsor Woods Convalescent Ctr. 13719 Dallas Drive Hudson FL 34667
- ------------------------------------------------------------------------------------------------------------------------------------
982 Village Square Nsg. & Rehab. Center 1586 West San Marcos Boulevard San Marcos CA 92069
- ------------------------------------------------------------------------------------------------------------------------------------
920 Marietta Convalescent Center Marietta OH
- ------------------------------------------------------------------------------------------------------------------------------------
(3636) (Owned facility leased to third party)
- ------------------------------------------------------------------------------------------------------------------------------------
985 Harrington House Nsg. & Rehab. Center 160 Main Street Walpole MA 02081
- ------------------------------------------------------------------------------------------------------------------------------------
1217 Casa Mora Rehab. & Extended Care 1902 49th Street West Bradenton FL 34209
- ------------------------------------------------------------------------------------------------------------------------------------
(Improvements owned under ground lease)
- ------------------------------------------------------------------------------------------------------------------------------------
421 North Broward Rehab. & Nsg. Center 402 East Sample Road Pompano Beach FL 33064
- ------------------------------------------------------------------------------------------------------------------------------------
(1218)
- ------------------------------------------------------------------------------------------------------------------------------------
511 Highland Pines Rehab. Center 111 South Highland Avenue Clearwater FL 34616
- ------------------------------------------------------------------------------------------------------------------------------------
(1220)
- ------------------------------------------------------------------------------------------------------------------------------------
1221 Courtland Gardens Health Center, Inc. 53 Courtland Avenue Stamford CT 06902
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 5
<PAGE>
<TABLE>
<CAPTION>
FAC. FACILITY
- ------------------------------------------------------------------------------------------------------------------------------------
NO. NAME ADDRESS CITY STATE ZIP
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
1224 Health Havens Nursing & Rehab. Center 100 Wampanoag Trail E. Providence RI 02915
- ------------------------------------------------------------------------------------------------------------------------------------
1226 Homestead Health Care 160 Glenbrook Road Stamford CT 06902
- ------------------------------------------------------------------------------------------------------------------------------------
422 Lafayette Nursing & Rehab. Center 110 Brandywine Boulevard Fayetteville GA 30214
- ------------------------------------------------------------------------------------------------------------------------------------
(1228)
- ------------------------------------------------------------------------------------------------------------------------------------
1231 Oak Hill Nursing & Rehab. Center 544 Pleasant Street Pawtucket RI 02860
- ------------------------------------------------------------------------------------------------------------------------------------
423 Pompano Rehab/Nursing Center 51 West Sample Road Pompano Beach FL 33064
- ------------------------------------------------------------------------------------------------------------------------------------
(1232)
- ------------------------------------------------------------------------------------------------------------------------------------
424 Abbey Rehab. & Nursing Center 7101 9th Street, North St. Petersburg FL 33702
- ------------------------------------------------------------------------------------------------------------------------------------
(1233)
- ------------------------------------------------------------------------------------------------------------------------------------
425 San Pedro Manor 515 W. Ashby Place San Antonio TX 78212
- ------------------------------------------------------------------------------------------------------------------------------------
(1234)
- ------------------------------------------------------------------------------------------------------------------------------------
426 Wyomissing Nursing & Rehab. Center 1000 E. Wyomissing Boulevard Reading PA 19611
- ------------------------------------------------------------------------------------------------------------------------------------
(1237)
- ------------------------------------------------------------------------------------------------------------------------------------
1238 Tucker Nursing Center 2165 Idlewood Road Tucker GA 30084
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
UNENCUMBERED PROPERTY - HOSPITALS
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
647 Vencor Hospital - Las Vegas 5100 West Sahara Avenue Las Vegas NV 89102
- ------------------------------------------------------------------------------------------------------------------------------------
641 Vencor Hospital Las Vegas West 1701 South Torrey Pines Las Vegas NV 89102
- ------------------------------------------------------------------------------------------------------------------------------------
644 THC - Orange County 875 North Brea Boulevard Brea CA 92821
- ------------------------------------------------------------------------------------------------------------------------------------
664 Vencor Hospital - Albuquerque 700 High Street, N.W. Albuquerque NM 87102
- ------------------------------------------------------------------------------------------------------------------------------------
(Own Improvements Underground Lease)
- ------------------------------------------------------------------------------------------------------------------------------------
617 Vencor Hospital - Arlington, VA 601 South Carlin Springs Road Arlington VA 22204
- ------------------------------------------------------------------------------------------------------------------------------------
688 Vencor Hospital - Boston 1515 Commonwealth Avenue Boston MA 02135
- ------------------------------------------------------------------------------------------------------------------------------------
673 Vencor Hospital - Boston Northshore 15 King Street Peabody MA 01960
- ------------------------------------------------------------------------------------------------------------------------------------
674 Vencor Hospital - Central Tampa 4801 North Howard Avenue Tampa FL 33603
- ------------------------------------------------------------------------------------------------------------------------------------
628 Vencor Hospital - Chattanooga 709 Walnut Street Chattanooga TN 37402
- ------------------------------------------------------------------------------------------------------------------------------------
637 Vencor Hospital - Chicago North 2544 West Montrose Avenue Chicago IL 60618
- ------------------------------------------------------------------------------------------------------------------------------------
602 Vencor Hospital - Coral Gables 5190 Southwest 8th Street Coral Gables FL 33134
- ------------------------------------------------------------------------------------------------------------------------------------
665 Vencor Hospital - Denver 1920 High Street Denver CO 80218
- ------------------------------------------------------------------------------------------------------------------------------------
675 Vencor Hospital - Detroit 26400 West Outer Drive Lincoln Park MI 48146
- ------------------------------------------------------------------------------------------------------------------------------------
653 Vencor Hospital - Ft. Worth Southwest 7800 Oakmont Boulevard Ft. Worth TX 76132
- ------------------------------------------------------------------------------------------------------------------------------------
668 Vencor Hospital - Ft. Worth West 815 Eighth Avenue Ft. Worth TX 76104
- ------------------------------------------------------------------------------------------------------------------------------------
645 Vencor Hospital - Ft. Lauderdale 1516 East Las Olas Boulevard Ft. Lauderdale FL 33301
- ------------------------------------------------------------------------------------------------------------------------------------
662 Vencor Hospital - Greensboro 2401 Southside Boulevard Greensboro NC 02746
- ------------------------------------------------------------------------------------------------------------------------------------
676 Vencor Hospital - Hollywood 1859 Van Buren Street Hollywood FL 33020
- ------------------------------------------------------------------------------------------------------------------------------------
685 Vencor Hospital - Houston 6441 Main Street Houston TX 77030
- ------------------------------------------------------------------------------------------------------------------------------------
(Own Improvements Underground Lease)
- ------------------------------------------------------------------------------------------------------------------------------------
654 Vencor Hospital - Houston Northwest 11297 Fallbrook Drive Houston TX 77065
- ------------------------------------------------------------------------------------------------------------------------------------
638 Vencor Hospital - Indianapolis 1700 West 10th Street Indianapolis IN 46222
- ------------------------------------------------------------------------------------------------------------------------------------
612 Vencor Hospital - Kansas City 8701 Troost Kansas City MO 64131
- ------------------------------------------------------------------------------------------------------------------------------------
620 Vencor Hospital - LaGrange 207 North Towline Road LaGrange IN 46761
- ------------------------------------------------------------------------------------------------------------------------------------
633 Vencor Hospital - Louisville 1313 St. Anthony Place Louisville KY 40204
- ------------------------------------------------------------------------------------------------------------------------------------
660 Vencor Hospital - Mansfield 1802 Hwy. 157 North Mansfield TX 76063
- ------------------------------------------------------------------------------------------------------------------------------------
677 Vencor Hospital - Metro Detroit 700 M.L. King, Jr. Boulevard Detroit MI 48208
- ------------------------------------------------------------------------------------------------------------------------------------
659 Vencor Hospital - Minneapolis 4101 Golden Valley Road Golden Valley MN 55422
- ------------------------------------------------------------------------------------------------------------------------------------
631 Vencor Hospital - Mt. Carmel 5700 West Layton Avenue Milwaukee WI 53220
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 6
<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
FAC. FACILITY
- ------------------------------------------------------------------------------------------------------------------------------------
NO. NAME ADDRESS CITY STATE ZIP
- ------------------------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
666 Vencor Hospital - New Orleans 3601 Coliseum Street New Orleans LA 70115
- ------------------------------------------------------------------------------------------------------------------------------------
656 Vencor Hospital - Phoenix 40 East Indianola Avenue Phoenix AZ 85012
- ------------------------------------------------------------------------------------------------------------------------------------
658 Vencor Hospital - Tucson 355 North Wilmot Road Tucson AZ 85711
- ------------------------------------------------------------------------------------------------------------------------------------
607 Vencor Hospital - Ontario 550 North Monterey Avenue Ontario CA 91764
- ------------------------------------------------------------------------------------------------------------------------------------
622 Vencor Hospital - San Leandro 2600 Benedict Drive San Leandro CA 94577
- ------------------------------------------------------------------------------------------------------------------------------------
642 Vencor Hospital - Orange County 200 Hospital Circle Westminster CA 92683
- ------------------------------------------------------------------------------------------------------------------------------------
648 Vencor Hospital - San Diego 1940 El Cajon Boulevard San Diego CA 92104
- ------------------------------------------------------------------------------------------------------------------------------------
611 Vencor Hospital - St. Petersburg 303 Sixth Street St. Petersburg FL 33705
- ------------------------------------------------------------------------------------------------------------------------------------
652 Vencor Hospital - North Florida 801 Oak Street Green Cove Spr. FL 32043
- ------------------------------------------------------------------------------------------------------------------------------------
615 Vencor Hospital - Sycamore 225 Edward Street Sycamore IL 60178
- ------------------------------------------------------------------------------------------------------------------------------------
690 Vencor Hospital - Northlake 365 East North Avenue Northlake IL 60164
- ------------------------------------------------------------------------------------------------------------------------------------
680 Vencor Hospital - St. Louis 4930 Lindell Boulevard St. Louis MO 63108
- ------------------------------------------------------------------------------------------------------------------------------------
618 Vencor Hospital - Oklahoma City 1407 North Robinson Avenue Oklahoma City OK 73103
- ------------------------------------------------------------------------------------------------------------------------------------
614 Vencor Hospital - Philadelphia 6129 Palemetto Street Philadelphia PA 19111
- ------------------------------------------------------------------------------------------------------------------------------------
619 Vencor Hospital - Pittsburgh 7777 Steubenville Pike Oakdale PA 15071
- ------------------------------------------------------------------------------------------------------------------------------------
635 Vencor Hospital - San Antonio 3636 Medical Drive San Antonio TX 78229
- ------------------------------------------------------------------------------------------------------------------------------------
693 Recovery Inn of Menlo Park 570 Willow Road Menlo Park CA 94025
- ------------------------------------------------------------------------------------------------------------------------------------
671 Vencor Lakeshore 6130 North Sheridan Road Chicago IL 60660
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 7
<PAGE>
EXHIBIT C TO CREDIT AGREEMENT
PRE-APPROVED DEVELOPMENT PROPERTIES
HOSPITALS
LOCATION ANTICIPATED COSTS ANNUAL RENT
-------- ----------------- -----------
Cincinnati, OH $14,300,000 $1,430,000
Milwaukee, WI 13,550,000 1,355,000
San Antonio, TX 11,894,000 1,189,400
Burbank, CA 15,650,000 1,565,000
COMBINATION HOSPITALS AND NURSING CENTERS
LOCATION ANTICIPATED COSTS ANNUAL RENT
-------- ----------------- -----------
Dallas, TX $14,700,000 $1,470,000
Las Vegas, NV 18,517,000 1,851,700
East Mesa, AZ 15,800,000 1,580,000
NURSING CENTERS
LOCATION ANTICIPATED COSTS ANNUAL RENT
-------- ----------------- -----------
Corydon, IN $ 7,025,000 $ 702,500
Indianapolis, IN 4,410,000 441,000
Sellersburg, IN 7,238,000 723,800
San Antonio, TX 9,044,000 904,400
Grapevine, TX 8,537,000 853,700
Richardson, TX 9,029,000 902,900
Arlington, TX 8,600,000 860,000
Evansville, IN 4,410,000 441,000
Tucson, AZ 9,611,000 961,100
Las Vegas, NV 9,326,000 932,600
Ft. Collins, CO 9,400,000 940,000
West Palm Beach, FL 9,155,000 915,500
Tucson, AZ 8,840,000 884,000
Pittsburgh, PA 7,615,000 761,500
Fontana, CA 8,550,000 855,000
1
<PAGE>
EXHIBIT D
FORM OF ASSIGNMENT AND ASSUMPTION
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of __________, 199_ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), VENTAS REALTY, LIMITED PARTNERSHIP
(the "Borrower") and NATIONSBANK, N.A., as Administrative Agent (the "Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the "Assignment")
relates to the Credit Agreement dated as of ________ __, 199_ (the "Loan
Agreement") among the Borrower, Ventas, Inc., the Assignor and the other Banks
party thereto, as Banks, and the Agent;
WHEREAS, as provided under the Loan Agreement, the Assignor has a
Commitment to make [Tranche A Loans/Tranche B Loans/Tranche C Loans/Tranche D
Loans] to the Borrower in an aggregate principal amount at any time outstanding
not to exceed $__________;
WHEREAS, [Tranche A Loans/Tranche B Loans/Tranche C Loans/Tranche D
Loans] made to the Borrower by the Assignor under the Loan Agreement in the
aggregate principal amount of $___________ are outstanding at the date hereof;
and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Loan Agreement in respect of a portion of its
[Tranche A/Tranche B/Tranche C/Tranche D] Commitment thereunder in an amount
equal to $__________ (the "Assigned Amount"), together with a corresponding
portion of its outstanding [Tranche A Loans/Tranche B Loans/Tranche C
Loans/Tranche D Loans], and the Assignee proposes to accept assignment of such
rights and assume the corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Loan Agreement.
1
<PAGE>
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Loan Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under the
Loan Agreement to the extent of the Assigned Amount, including the purchase from
the Assignor of the corresponding portion of the principal amount of the Loans
made by the Assignor or Letters of Credit participated in by Assignor
outstanding at the date hereof. Upon the execution and delivery hereof by the
Assignor, the Assignee, the Borrower and the Agent and the payment of the
amounts specified in Section 3 required to be paid on the date hereof (i) the
Assignee shall, as of the date hereof, succeed to the rights and be obligated to
perform the obligations of a Bank under the Loan Agreement with a [Tranche
A/Tranche B/Tranche C/Tranche D] Commitment in an amount equal to the Assigned
Amount, and (ii) the [Tranche A/Tranche B/Tranche C/Tranche D] Commitment of the
Assignor shall, as of the date hereof, be reduced by a like amount and the
Assignor released from its obligations under the Loan Agreement to the extent
such obligations have been assumed by the Assignee. The assignment provided for
herein shall be without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them./1/ It is
understood that Commitment Fees accrued to the date hereof are for the account
of the Assignor and such fees accruing from and including the date hereof are
for the account of the Assignee. Each of the Assignor and the Assignee hereby
agrees that if it receives any amount under the Loan Agreement which is for the
account of the other party hereto, it shall receive the same for the account of
such other party to the extent of such other party's interest therein and shall
promptly pay the same to such other party.
SECTION 4. Consent of the Borrower and the Agent. This Agreement is
conditioned upon the written consent of the Borrower and the consent of the
Agent pursuant to section 9.6(c) of the Loan Agreement. The execution of this
Agreement by the Borrower and the Agent is evidence of the required consents.
Pursuant to Section 9.6(c) the Borrower agrees to execute
- --------------------
/1/ The amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee, net of any
portion of any upfront fee to be paid by the Assignor to the Assignee.
It may be preferable in an appropriate case to specify these amounts
generically or by formula rather than as a fixed sum.
2
<PAGE>
and deliver a Note payable to the order of the Assignee to evidence the
assignment and assumption provided for herein.
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the
Borrower, or the validity and enforceability of the obligations of the Borrower
in respect of the Loan Agreement or any Note. The Assignee acknowledges that it
has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Borrower.
SECTION 6. Governing Law. This Agreement shall be governed by and
construed in accordance with the external laws of the State of New York
SECTION 7. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
3
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By:
--------------------------
Name:
Title:
[ASSIGNEE]
By:
--------------------------
Name:
Title:
CONSENTED TO:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Documentation Agent
By:
--------------------------
Name:
Title:
NATIONSBANK, N.A., as Administrative Agent
By:
--------------------------
Name:
Title:
4
<PAGE>
VENTAS REALTY, LIMITED PARTNERSHIP
By: Ventas, Inc., its general partner
By:
--------------------------
Name:
Title:
5
<PAGE>
SCHEDULE 3.1
EXCEPTIONS TO SECTION 3.1
1. Hillhaven 10 1/8% Senior Subordinated Notes due 2001.
6
<PAGE>
SCHEDULE 4.3
EXCEPTIONS TO SECTION 4.3
1. Hillhaven 10 1/8% Senior Subordinated Notes due 2001.
<PAGE>
SCHEDULE 4.5
LITIGATION
Certain Legal Proceedings and Other Actions
The following is a description of the material legal proceedings and other
actions of Predecessor Company as of April 27, 1998. It is expected that
pursuant to the Reorganization Agreement, any liability arising from such legal
proceedings and such other actions would be assumed by the Guarantor and that
the Guarantor would indemnify Predecessor Company against any losses it may
incur arising out of or in connection with such legal proceedings and other
actions.
On April 7, 1998, the Circuit Court of the Thirteenth Judicial Circuit for
Hillsborough County, Florida, issued a temporary injunction order against
Predecessor Company's nursing center in Tampa, Florida which ordered the nursing
center to cease notifying and requiring the discharge of any resident.
Predecessor Company discontinued requiring the discharge of any resident from
its Tampa nursing center on April 7, 1998. Following the conduct of a complaint
survey at the facility, AHCA imposed a fine of $270,000 for related regulatory
violations. In addition, HCFA has imposed a fine of $10,000 per day, effective
from March 30, 1998 and continuing until the facility removes any "immediate
jeopardy" to patients, has terminated the nursing center's Medicare provider
agreement effective May 7, 1998 and has indicated that it will notify AHCA to
terminate Predecessor Company's Medicaid provider agreement. Predecessor
Company instituted a plan of correction at the Tampa nursing center to respond
to the findings of AHCA and HCFA and has been orally informed by AHCA that
"immediate jeopardy" no longer exists at the nursing center. AHCA also has
changed the rating of the nursing center's license to conditional. Predecessor
Company has not yet determined whether it will appeal these regulatory
sanctions. Predecessor Company believes that it has submitted an acceptable
plan of correction which will terminate the running of per day fines and reverse
the termination of the Tampa nursing center's Medicare provider agreement.
Predecessor Company is awaiting decisions from HCFA and AHCA and no assurance
can be given that the plan will be accepted.
The Florida Attorney General's office and the Tampa Prosecuting Attorney's
office have indicated to Predecessor Company that they are conducting
independent civil and criminal investigations into the circumstances surrounding
the Tampa resident discharges. Predecessor Company is cooperating fully with
the ongoing investigations.
In addition to its action with the nursing center in Tampa, Florida, the HCFA
Administrator of the Medicare and Medicaid programs recently indicated that
Predecessor Company facilities in other states also are being monitored.
Predecessor Company has not received notice that any other state has instituted
an investigation into any similar issues at another Predecessor Company
facility. However, there can be no assurance that HCFA or other
<PAGE>
regulators in other jurisdictions will not initiate investigations relating to
this matter or other circumstances, and there can be no assurance that results
of any such investigations would not have a material effect on the Company. See
"-Healthcare Industry Risks."
On April 9, 1998, a class action lawsuit captioned Mongiovi et al. v. Vencor,
Inc., et al. Case No. 98-769-CIV-T24E, was filed in the United States District
Court for the Middle District of Florida on behalf of a purported class
consisting of certain residents of the Tampa nursing center and other residents
in Predecessor Company's nursing centers nationwide. The complaint alleges
various breaches of contract, and statutory and regulatory violations including
violations of Federal and state RICO statutes. The plaintiffs seek class
certification, unspecified damages, attorneys' fees and costs. Predecessor
Company intends to defend vigorously this action.
A class action lawsuit entitled A. Carl Helwig v. Vencor, Inc., et al., was
filed on December 24, 1997 in the United States District Court for the Western
District of Kentucky (Civil Action No. 3-97CV-8354). The class action claims
were brought by an alleged stockholder of Predecessor Company against
Predecessor Company and certain executive officers and directors of Predecessor
Company, namely W. Bruce Lunsford, W. Earl Reed, III, Michael R. Barr, Thomas T.
Ladt, Jill L. Force and James H. Gillenwater, Jr. The complaint alleges that
Predecessor Company and certain executive officers of Predecessor Company during
a specified time frame violated Sections 10(b) and 20(a) of the Exchange Act,
by, among other things, issuing to the investing public a series of false and
misleading statements concerning Predecessor Company's current operations and
the inherent value of Predecessor Company common stock. The complaint further
alleges that as a result of these purported false and misleading statements
concerning Predecessor Company's revenues and successful acquisitions, the price
of Predecessor Company common stock was artificially inflated. In particular,
the complaint alleges that Predecessor Company issued false and misleading
financial statements during the first, second and third calendar quarters of
1997 which misrepresented and understated the impact that changes in Medicare
reimbursement policies would have on Predecessor Company's core services and
profitability. The complaint further alleges that Predecessor Company issued a
series of materially false statements concerning the purportedly successful
integration of its recent acquisitions and prospective earnings per share for
1997 and 1998 which Predecessor Company knew lacked any reasonable basis and
were not being achieved. The suit seeks damages in an amount to be proven at
trial, pre-judgment and post-judgment interest, reasonable attorneys' fees,
expert witness fees and other costs, and any extraordinary equitable and/or
injunctive relief permitted by law or equity to assure that the plaintiff has an
effective remedy. Predecessor Company believes that the allegations in the
complaint are without permit and intends to defend vigorously this action.
On June 19, 1997, a class action lawsuit was filed in the United States District
Court for the District of Nevada on behalf of a class consisting of all persons
who sold shares of Transitional common stock during the period from February 26,
1997 through May 4, 1997, inclusive. The complaint alleges that Transitional
purchased shares of its common stock from members of the investing public after
it had received a written offer to acquire all of Transitional's common stock
and without disclosing that such an offer had been made. The complaint further
alleges that defendants disclosed that there were "expressions of interest" in
acquiring Transitional
<PAGE>
when, in fact, at that time, the negotiations had reached an advanced stage with
actual firm offers at substantial premiums to the trading price of
Transitional's stock having been made which were actively being considered by
Transitional's Board of Directors. The complaint asserts claims pursuant to
Sections 10(b) and 20(a) of the Exchange Act and common law principles of
negligent misrepresentation and names as defendants Transitional as well as
certain senior executives and directors of Transitional. The plaintiff seeks
class certification, unspecified damages, attorneys' fees and costs. Predecessor
Company has filed a motion to dismiss and is awaiting the court's decision.
Predecessor Company is vigorously defending this action.
Predecessor Company's subsidiary, American X-Rays, Inc. ("AXR"), is the
defendant in a qui tam lawsuit which was filed in the United States District
Court for the Eastern District of Arkansas and served on Predecessor Company on
July 7, 1997. The United States Department of Justice intervened in the suit
which was brought under the Federal Civil False Claims Act. AXR provided
portable X-ray services to nursing facilities (including those operated by
Predecessor Company) and other healthcare providers. Predecessor Company
acquired an interest in AXR when Hillhaven was merged into Predecessor Company
in September 1995 and purchased the remaining interest in AXR in February 1996.
The suit alleges that AXR submitted false claims to the Medicare and Medicaid
programs. In conjunction with the qui tam action, the United States Attorney's
Office for the Eastern District of Arkansas also is conducting a criminal
investigation into the allegations contained in the qui tam complaint. The suit
seeks damages in an amount of not less than $1,000,000, treble damages and civil
penalties. Predecessor Company is cooperating fully in the investigation.
On June 6, 1997, Transitional announced that it had been advised that it is a
target of a Federal grand jury investigation being conducted by the United
States Attorney's Office for the District of Massachusetts (the "USAO") arising
from activities of Transitional's formerly owned dialysis business. The
investigation involves an alleged illegal arrangement in the form of a
partnership which existed from June 1987 to June 1992 between Damon Corporation
and Transitional. Transitional spun off its dialysis business, now called Vivra
Incorporated, on September 1, 1989. In January 1998, Predecessor Company was
informed that no criminal charges would be filed against Predecessor Company.
Predecessor Company has been informed that the USAO intends to file a civil
action against Transitional relating to the partnership's former business. If
such a suit is filed, Predecessor Company will vigorously defend the action.
As is typical in the healthcare industry, Predecessor Company is subject to
claims and legal actions by patients and other in the ordinary course of
business; and Predecessor Company believes that all such claims and legal
actions currently pending against it either are adequately covered by insurance
or would not have a material adverse effect on Predecessor Company if decided in
a manner unfavorable to Predecessor Company. In addition, Predecessor Company
is subject regularly to inquiries, investigations and audits by Federal and
state agencies that oversee various healthcare regulations and laws.
<PAGE>
SCHEDULE 4.19
LABOR MATTERS
1. Country Gardens Nursing Home/District 1199, N.E. Health Care Employees
Union
2. Andrew House Healthcare/District 1199, N.E. Health Care Employees Union
3. Windsor Rehab & Healthcare Center/District 1199, N.E. Healthcare Employees
Union
4. Country Manor Rehabilitation and Nursing Center/SEIU, Local 285
5. East Bridgewater/SEIU, Local 285
6. Woodridge House Nursing and Rehab Center/SEIU
7. Winship Groen/International Association of Machinists, District Lodge 99
8. Vencor Hospital Detroit/SEIU, Local 79
9. Master Agreement/Hospital and Institutional Workers' Union Local 22, Health
Care Worker's Union, Local 250, and SEIU, Local 399 (7 Facilities)
10. Mountain Valley Care & Rehab Center/United Steelworkers of America, Local
9052
11. Las Vegas Healthcare and Rehab Center/Textile Processors Local 311
12. THC-Seattle/Washington State Nurses Association
13. Pasatiempo/Health Care Workers' Union, Local 250, SEIU (2 Facilities)
14. Hacienda/Health Care Workers' Union, Local 250, SEIU (1 Facility)
15. Santa Cruz/Health Care Workers' Union, Local 250, SEIU
16. California Multiple/Health Care Workers' Union, Local 250, SEIU (1
Facility)
17. San Leandro Hospital/International Union of Operating Engineers, Local 39
18. San Leandro Hospital/Local 250, SEIU
19. Talbot Healthcare Center/SEIU, Local 6
20. Omro Care Center/SEIU, Local 150
21. Eastview Medical and Rehab Center/SEIU, Local 150
22. Colonial Manor/SEIU, Local 150
23. Colony Oaks Care Center/SEIU, Local 150
24. North Ridge/SEIU, Local 150
25. Family Heritage/SEIU, Local 150
26. Mount Carmel Health and Rehab Center/SEIU, Local 150
27. THC-Chicago/International Union of Operating Engineers of Chicago, Local
399
Totals 4 Hospitals 29 Nursing Centers (plus two Centers where we have
lost elections and appeals are pending)
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------
SCHEDULE 4.22 TO CREDIT AGREEMENT
- ----------------------------------------------------------------------------------------------------------------------
OWNER OF FACILITY ON CLOSING DATE - NURSING HOMES
- ----------------------------------------------------------------------------------------------------------------------
FAC. FACILITY
- ----------------------------------------------------------------------------------------------------------------------
NO. NAME ADDRESS CITY STATE ZIP
- ----------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C>
111 Rolling Hills Health Care Center 36255 St. Joseph Road New Albany IN 47150
- --------------------------------------------------------------------------------------------------------------------
112 Royal Oaks Healthcare & Rehab Ctr. 3500 Maple Avenue Terre Haute IN 47804
- --------------------------------------------------------------------------------------------------------------------
113 Southwood Health & Rehab Center 2222 Margaret Avenue Terre Haute IN 47802
- ----------------------------------------------------------------------------------------------------------------------
114 Arden Rehabilitation & Healthcare Ctr. 16357 Aurora Avenue North Seattle WA 98133
- ----------------------------------------------------------------------------------------------------------------------
116 Pettigrew Rehab. & Healthcare Ctr. 1515 West Pettigrew Street Durham NC 27705
- ----------------------------------------------------------------------------------------------------------------------
117 East Manor Medical Care Center 1524 East Avenue South Sarasota FL 34239
- ----------------------------------------------------------------------------------------------------------------------
124 Healthcare & Rehab Ctr of Sanford 950 Mellonville Avenue Sanford FL 32771
- ----------------------------------------------------------------------------------------------------------------------
125 Titusville Rehab. & Nursing Center 1705 Jess Parrish Court Titusville FL 32796
- ----------------------------------------------------------------------------------------------------------------------
127 Northwest Continuum Care Center 128 Beacon Hill Drive Longview WA 98632
- ----------------------------------------------------------------------------------------------------------------------
132 Madison Healthcare & Rehab Center 431 Larkin Springs Road Madison TN 37115
- ----------------------------------------------------------------------------------------------------------------------
136 LaSalle Healthcare Center 411 South LaSalle Street Durham NC 27705
- ----------------------------------------------------------------------------------------------------------------------
137 Sunnybrook Alzheimer's & HC Spec. 25 Sunnybrook Road Raleigh NC 27610
- ----------------------------------------------------------------------------------------------------------------------
138 Blue Ridge Rehab. & Healthcare Ctr. 91 Victoria Road Asheville NC 28801
- ----------------------------------------------------------------------------------------------------------------------
140 Wasatch Care Center 3430 Harrison Boulevard Ogden UT 84403
- ----------------------------------------------------------------------------------------------------------------------
143 Raleigh Rehab. & Healthcare Center 616 Wade Avenue Raleigh NC 27605
- ----------------------------------------------------------------------------------------------------------------------
146 Rose Manor Health Care Center 4230 North Roxboro Road Durham NC 27704
- ----------------------------------------------------------------------------------------------------------------------
150 Nob Hill Healthcare Center 1359 Pine Street San Francisco CA 94109
- ----------------------------------------------------------------------------------------------------------------------
155 Savannah Rehab. & Nursing Center 815 East 63rd Street Savannah GA 31405
- ----------------------------------------------------------------------------------------------------------------------
158 Bellingham Health Care & Rehab Svc 1200 Birchwood Avenue Bellingham WA 98225
- ----------------------------------------------------------------------------------------------------------------------
165 Rainier Vista Care Center 920 12th Ave., S.E. Puyallup WA 98372
- ----------------------------------------------------------------------------------------------------------------------
167 Canyonwood Nursing & Rehab. Ctr. 2120 Benton Drive Redding CA 96003
- ----------------------------------------------------------------------------------------------------------------------
168 Lakewood Healthcare Center 11411 Bridgeport Way S.W. Lakewood WA 98499
- ----------------------------------------------------------------------------------------------------------------------
180 Vencor of Vancouver HC & Rehab 400 East 33rd Street Vancouver WA 98663
- ----------------------------------------------------------------------------------------------------------------------
182 Cordova Rehab. & Nursing Center 955 Germantown Parkway Cordova TN 38018
- ----------------------------------------------------------------------------------------------------------------------
185 Heritage Health & Rehab. Center 3605 Y Street Vancouver WA 98663
- ----------------------------------------------------------------------------------------------------------------------
188 Cypress Pointe Rehab & HC Center 2006 South 16th Street Wilmington NC 28401
- ----------------------------------------------------------------------------------------------------------------------
190 Winston-Salem Rehab & HC Center 1900 West First Street Winston-Salem NC 27104
- ----------------------------------------------------------------------------------------------------------------------
191 Silas Creek Manor 3350 Silas Creek Parkway Winston-Salem NC 27103
- ----------------------------------------------------------------------------------------------------------------------
209 Valley View Health Care Center 333 West Mishawaka Road Elkhart IN 46517
- ----------------------------------------------------------------------------------------------------------------------
210 Californian Care Center 2211 Mt. Vernon Avenue Bakersfield CA 93306
- ----------------------------------------------------------------------------------------------------------------------
213 Wildwood Healthcare Center 7301 East 16th Street Indianapolis IN 46219
- ----------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------
FAC. FACILITY
- -----------------------------------------------------------------------------------
NO. NAME Owner
- -----------------------------------------------------------------------------------
<C> <S> <C>
111 Rolling Hills Health Care Center Hillhaven/Indiana Partnership
- -----------------------------------------------------------------------------------
112 Royal Oaks Healthcare & Rehab Ctr. Hillhaven/Indiana Partnership
- -----------------------------------------------------------------------------------
113 Southwood Health & Rehab Center Hillhaven/Indiana Partnership
- -----------------------------------------------------------------------------------
114 Arden Rehabilitation & Healthcare Ctr. First Healthcare Corporation
- -----------------------------------------------------------------------------------
116 Pettigrew Rehab. & Healthcare Ctr. First Healthcare Corporation
- -----------------------------------------------------------------------------------
117 East Manor Medical Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
124 Healthcare & Rehab Ctr of Sanford First Healthcare Corporation
- -----------------------------------------------------------------------------------
125 Titusville Rehab. & Nursing Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
127 Northwest Continuum Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
132 Madison Healthcare & Rehab Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
136 LaSalle Healthcare Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
137 Sunnybrook Alzheimer's & HC Spec. First Healthcare Corporation
- -----------------------------------------------------------------------------------
138 Blue Ridge Rehab. & Healthcare Ctr. First Healthcare Corporation
- -----------------------------------------------------------------------------------
140 Wasatch Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
143 Raleigh Rehab. & Healthcare Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
146 Rose Manor Health Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
150 Nob Hill Healthcare Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
155 Savannah Rehab. & Nursing Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
158 Bellingham Health Care & Rehab Svc First Healthcare Corporation
- -----------------------------------------------------------------------------------
165 Rainier Vista Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
167 Canyonwood Nursing & Rehab. Ctr. First Healthcare Corporation
- -----------------------------------------------------------------------------------
168 Lakewood Healthcare Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
180 Vencor of Vancouver HC & Rehab First Healthcare Corporation
- -----------------------------------------------------------------------------------
182 Cordova Rehab. & Nursing Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
185 Heritage Health & Rehab. Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
188 Cypress Pointe Rehab & HC Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
190 Winston-Salem Rehab & HC Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
191 Silas Creek Manor First Healthcare Corporation
- -----------------------------------------------------------------------------------
209 Valley View Health Care Center Hillhaven/Indiana Partnership
- -----------------------------------------------------------------------------------
210 Californian Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
213 Wildwood Healthcare Center Hillhaven/Indiana Partnership
- -----------------------------------------------------------------------------------
</TABLE>
PAGE 1
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------
FAC. FACILITY
- ----------------------------------------------------------------------------------------------------------------------
NO. NAME ADDRESS CITY STATE ZIP
- ----------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C>
216 Hillcrest Rehab. Care Center 1001 S. Hilton Boise ID 83705
- ----------------------------------------------------------------------------------------------------------------------
218 Cascade Care Center 2814 S. Indiana Avenue South Caldwell ID 83605
- ----------------------------------------------------------------------------------------------------------------------
219 Emmett Rehabilitation and Healthcare 714 North Butte Avenue Emmett ID 83617
- ----------------------------------------------------------------------------------------------------------------------
221 Lewiston Rehabilitation and Care Center 3315 8th Street Lewiston ID 83501
- ----------------------------------------------------------------------------------------------------------------------
222 Nampa Care Center 404 Horton Nampa ID 83651
- ----------------------------------------------------------------------------------------------------------------------
223 Weiser Rehabilitation and Care Center 331 East Park Weiser ID 83672
- ----------------------------------------------------------------------------------------------------------------------
225 Moscow Care Center 420 Rowe Road Moscow ID 83843
- ----------------------------------------------------------------------------------------------------------------------
230 Crossland Rehab. & Health Care Center 575 East 11000 South Sandy UT 84070
- ----------------------------------------------------------------------------------------------------------------------
245 Bay Pointe Nursing Pavilion 4201 31st Street South St. Petersburg FL 33712
- ----------------------------------------------------------------------------------------------------------------------
247 St. George Care and Rehab. Center 1032 East 100th South St. George UT 84770
- ----------------------------------------------------------------------------------------------------------------------
268 Colonial Oaks Rehab. Ctr-Ft. Myers 3250 Winkler Avenue Exten Ft. Myers FL 33916
- ----------------------------------------------------------------------------------------------------------------------
269 Meadowvale Health & Rehab. Center 1529 West Lancaster Street Bluffton IN 46714
- ----------------------------------------------------------------------------------------------------------------------
277 Rosewood Health Care Center 550 High Street Bowling Green KY 42101
- ----------------------------------------------------------------------------------------------------------------------
278 Oakview Nursing & Rehab. Center 10456 U.S. Highway 62 Calvert City KY 42029
- ----------------------------------------------------------------------------------------------------------------------
279 Cedars of Lebanon Nursing Center 337 South Harrison Street Lebanon KY 40033
- ----------------------------------------------------------------------------------------------------------------------
280 Winchester Centre for Health/Rehab. 200 Glenway Road Winchester KY 40391
- ----------------------------------------------------------------------------------------------------------------------
281 Riverside Manor Health Care Highway 136 - Box 39 Calhoun KY 42327
- ----------------------------------------------------------------------------------------------------------------------
282 Maple Manor Healthcare Center 515 Greene Drive Greenville KY 42345
- ----------------------------------------------------------------------------------------------------------------------
286 Columbia Healthcare Facility 621 West Columbia Street Evansville IN 47710
- ----------------------------------------------------------------------------------------------------------------------
289 San Luis Medical & Rehab Center 2305 San Luis Place Green Bay WI 54204
- ----------------------------------------------------------------------------------------------------------------------
290 Bremen Health Care Center 316 Woodies Lane Bremen IN 46506
- ----------------------------------------------------------------------------------------------------------------------
294 Windsor Estates Health & Rehab. Ctr. 429 West Lincoln Road Kokomo IN 46902
- ----------------------------------------------------------------------------------------------------------------------
297 Marigarde-Sylvania Nursing Home Toledo OH
- ----------------------------------------------------------------------------------------------------------------------
302 Birchwood Care Center Marne MI
- ----------------------------------------------------------------------------------------------------------------------
307 Lincoln Nursing Center 1410 East Gaston Street Lincolnton NC 28092
- ----------------------------------------------------------------------------------------------------------------------
320 Magnolia Gardens Care Center 1609 Trousdale Drive Burlingame CA 94010
- ----------------------------------------------------------------------------------------------------------------------
327 Laurel Ridge Rehab. & Nursing Center 174 Forrest Hill Street Jamaica Plain MA 02130
- ----------------------------------------------------------------------------------------------------------------------
335 Lawton Healthcare Center 1575 - 7th Avenue San Francisco CA 94122
- ----------------------------------------------------------------------------------------------------------------------
350 Valley Gardens Healthcare & Rehab. 1517 East Knickerbocker Drive Stockton CA 95210
- ----------------------------------------------------------------------------------------------------------------------
372 Carrollwood Care Center 15002 Hutchinson Road Tampa FL 33625
- ----------------------------------------------------------------------------------------------------------------------
406 Muncie Health Care & Rehab. 4301 North Walnut Muncie IN 47305
- ----------------------------------------------------------------------------------------------------------------------
407 Parkwood Health Care Center 1001 North Grant Street Lebanon IN 46052
- ----------------------------------------------------------------------------------------------------------------------
409 Mountain Valley Care and Rehab. 601 West Cameron Avenue Kellogg ID 83837
- ----------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------
FAC. FACILITY
- -----------------------------------------------------------------------------------
NO. NAME Owner
- -----------------------------------------------------------------------------------
<C> <S> <C>
216 Hillcrest Rehab. Care Center Northwest Health Care, Inc.
- -----------------------------------------------------------------------------------
218 Cascade Care Center Northwest Health Care, Inc.
- -----------------------------------------------------------------------------------
219 Emmett Rehabilitation and Healthcare Northwest Health Care, Inc.
- -----------------------------------------------------------------------------------
221 Lewiston Rehabilitation and Care Center Northwest Health Care, Inc.
- -----------------------------------------------------------------------------------
222 Nampa Care Center Northwest Health Care, Inc.
- -----------------------------------------------------------------------------------
223 Weiser Rehabilitation and Care Center Northwest Health Care, Inc.
- -----------------------------------------------------------------------------------
225 Moscow Care Center Northwest Health Care, Inc.
- -----------------------------------------------------------------------------------
230 Crossland Rehab. & Health Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
245 Bay Pointe Nursing Pavilion First Healthcare Corporation
- -----------------------------------------------------------------------------------
247 St. George Care and Rehab. Center St. George Nsg. Hm Ltd Part.
- -----------------------------------------------------------------------------------
268 Colonial Oaks Rehab. Ctr-Ft. Myers Hillhaven/Indiana Partnership
- -----------------------------------------------------------------------------------
269 Meadowvale Health & Rehab. Center Hillhaven/Indiana Partnership
- -----------------------------------------------------------------------------------
277 Rosewood Health Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
278 Oakview Nursing & Rehab. Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
279 Cedars of Lebanon Nursing Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
280 Winchester Centre for Health/Rehab. First Healthcare Corporation
- -----------------------------------------------------------------------------------
281 Riverside Manor Health Care First Healthcare Corporation
- -----------------------------------------------------------------------------------
282 Maple Manor Healthcare Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
286 Columbia Healthcare Facility Hillhaven/Indiana Partnership
- -----------------------------------------------------------------------------------
289 San Luis Medical & Rehab Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
290 Bremen Health Care Center Hillhaven/Indiana Partnership
- -----------------------------------------------------------------------------------
294 Windsor Estates Health & Rehab. Ctr. Hillhaven/Indiana Partnership
- -----------------------------------------------------------------------------------
297 Marigarde-Sylvania Nursing Home First Healthcare Corporation
- -----------------------------------------------------------------------------------
302 Birchwood Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
307 Lincoln Nursing Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
320 Magnolia Gardens Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
327 Laurel Ridge Rehab. & Nursing Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
335 Lawton Healthcare Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
350 Valley Gardens Healthcare & Rehab. First Healthcare Corporation
- -----------------------------------------------------------------------------------
372 Carrollwood Care Center Carrollwood Care Center
- -----------------------------------------------------------------------------------
406 Muncie Health Care & Rehab. Hillhaven/Indiana Partnership
- -----------------------------------------------------------------------------------
407 Parkwood Health Care Center Hillhaven/Indiana Partnership
- -----------------------------------------------------------------------------------
409 Mountain Valley Care and Rehab. First Healthcare Corporation
- -----------------------------------------------------------------------------------
</TABLE>
PAGE 2
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------
FAC. FACILITY
- ----------------------------------------------------------------------------------------------------------------------
NO. NAME ADDRESS CITY STATE ZIP
- ----------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C>
411 Alta Vista Healthcare Center 9020 Garfield Avenue Riverside CA 92503
- ----------------------------------------------------------------------------------------------------------------------
416 Park Place Health Care Center 1500 32nd Street South Great Falls MT 59403
- ----------------------------------------------------------------------------------------------------------------------
420 Maywood Acres Healthcare Center 2641 South C. Street Oxnard CA 93033
- ----------------------------------------------------------------------------------------------------------------------
433 Parkview Acres Care & Rehab Center 200 Oregon Street Dillon MT 59725
- ----------------------------------------------------------------------------------------------------------------------
436 Valley Healthcare & Rehab. Center 5545 East Lee Street Tucson AZ 85712
- ----------------------------------------------------------------------------------------------------------------------
441 Mountain Towers Healthcare & Rehab. 3128 Boxeider Drive Cheyenne WY 82001
- ----------------------------------------------------------------------------------------------------------------------
452 Sunnyside Care Center 4515 Sunnyside Road, S.E. Salem OR 97302
- ----------------------------------------------------------------------------------------------------------------------
453 Medford Rehab. & Healthcare Center 625 Stevens Street Medford OR 97504
- ----------------------------------------------------------------------------------------------------------------------
461 Edmonds Rehab. & Healthcare Center 21008 76th Avenue West Edmonds WA 98026
- ----------------------------------------------------------------------------------------------------------------------
462 Queen Anne Healthcare 2717 Dexter Avenue North Seattle WA 98109
- ----------------------------------------------------------------------------------------------------------------------
481 South Central Wyoming Healthcare & Rehab 542 - 16th Street Rawlins WY 82301
- ----------------------------------------------------------------------------------------------------------------------
482 Wind River Healthcare & Rehab. Center 1002 Forest Drive Riverton WY 82501
- ----------------------------------------------------------------------------------------------------------------------
483 Sage View Care Center 1325 Sage Street Rock Springs WY 82901
- ----------------------------------------------------------------------------------------------------------------------
501 Blue Hills Alzheimer's Care Center 1044 Park Street Stoughton MA 02072
- ----------------------------------------------------------------------------------------------------------------------
503 Brigham Manor Nursing & Rehab. Center 77 High Street Newburyport MA 01950
- ----------------------------------------------------------------------------------------------------------------------
506 Presentation Nursing & Rehab. Center 10 Bellamy Street Brighton MA 02135
- ----------------------------------------------------------------------------------------------------------------------
507 Country Manor Rehab. & Nursing Center 180 Low Street Newburyport MA 01950
- ----------------------------------------------------------------------------------------------------------------------
508 Crawford Skilled Nursing & Rehab. Center 273 Oak Grove Avenue Fall River MA 02723
- ----------------------------------------------------------------------------------------------------------------------
513 Hallmark Nursing & Rehab. Center 1123 Rockdale Avenue New Bedord MA 02740
- ----------------------------------------------------------------------------------------------------------------------
514 Sachem Nursing & Rehab. Center 66 Central Street East Bridgewater MA 02333
- ----------------------------------------------------------------------------------------------------------------------
516 Hammersmith House Nursing Care Center 73 Chestnut Street Saugus MA 01906
- ----------------------------------------------------------------------------------------------------------------------
517 Oakwood Rehab. & Nursing Center 11 Pontiac Avenue Webster MA 01570
- ----------------------------------------------------------------------------------------------------------------------
518 Timberlyn Heights Nursing & Alz. Center 320 Maple Avenue Great Barrington MA 01230
- ----------------------------------------------------------------------------------------------------------------------
523 Star of David Nursing & Rehab/Alz Center 1100 VFW Parkway West Roxbury MA 02132
- ----------------------------------------------------------------------------------------------------------------------
525 La Veta Healthcare Center 920 West La Veta Orange CA 92868
- ----------------------------------------------------------------------------------------------------------------------
(improvements owned under ground lease)
- ----------------------------------------------------------------------------------------------------------------------
526 Brittany Healthcare Center 168 West Central Street Natick MA 01760
- ----------------------------------------------------------------------------------------------------------------------
527 Briarwood Health Care Nursing Center 150 Lincoln Street Needham MA 02192
- ----------------------------------------------------------------------------------------------------------------------
528 Westridge Healthcare Center 121 Northboro Road Marlborough MA 01752
- ----------------------------------------------------------------------------------------------------------------------
529 Bolton Manor Nursing Home 400 Bolton Street Marborough MA 07152
- ----------------------------------------------------------------------------------------------------------------------
532 Hillcrest Nursing Home 94 Summer Street Fitchburg MA 01420
- ----------------------------------------------------------------------------------------------------------------------
534 Country Gardens Sk. Nursing & Rehab. 2045 Grand Army Highway Swansea MA 02777
- ----------------------------------------------------------------------------------------------------------------------
537 Qunicy Rehab. & Nursing Center 11 McGrath Highway Quincy MA 02169
- ----------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------
FAC. FACILITY
- -----------------------------------------------------------------------------------
NO. NAME Owner
- -----------------------------------------------------------------------------------
<C> <S> <C>
411 Alta Vista Healthcare Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
416 Park Place Health Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
420 Maywood Acres Healthcare Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
433 Parkview Acres Care & Rehab Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
436 Valley Healthcare & Rehab. Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
441 Mountain Towers Healthcare & Rehab. First Healthcare Corporation
- -----------------------------------------------------------------------------------
452 Sunnyside Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
453 Medford Rehab. & Healthcare Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
461 Edmonds Rehab. & Healthcare Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
462 Queen Anne Healthcare First Healthcare Corporation
- -----------------------------------------------------------------------------------
481 South Central Wyoming Healthcare & Rehab First Healthcare Corporation
- -----------------------------------------------------------------------------------
482 Wind River Healthcare & Rehab. Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
483 Sage View Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
501 Blue Hills Alzheimer's Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
503 Brigham Manor Nursing & Rehab. Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
506 Presentation Nursing & Rehab. Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
507 Country Manor Rehab. & Nursing Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
508 Crawford Skilled Nursing & Rehab. Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
513 Hallmark Nursing & Rehab. Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
514 Sachem Nursing & Rehab. Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
516 Hammersmith House Nursing Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
517 Oakwood Rehab. & Nursing Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
518 Timberlyn Heights Nursing & Alz. Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
523 Star of David Nursing & Rehab/Alz Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
525 La Veta Healthcare Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
(improvements owned under ground lease)
- -----------------------------------------------------------------------------------
526 Brittany Healthcare Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
527 Briarwood Health Care Nursing Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
528 Westridge Healthcare Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
529 Bolton Manor Nursing Home First Healthcare Corporation
- -----------------------------------------------------------------------------------
532 Hillcrest Nursing Home First Healthcare Corporation
- -----------------------------------------------------------------------------------
534 Country Gardens Sk. Nursing & Rehab. First Healthcare Corporation
- -----------------------------------------------------------------------------------
537 Qunicy Rehab. & Nursing Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
</TABLE>
PAGE 3
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------
FAC. FACILITY
- ----------------------------------------------------------------------------------------------------------------------
NO. NAME ADDRESS CITY STATE ZIP
- ----------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C>
538 West Roxbury Manor 5060 Washington Street West Roxbury MA 02132
- ----------------------------------------------------------------------------------------------------------------------
539 Newton and Wellesley Alzheimer Center 694 Worcester Street Wellesley MA 02181
- ----------------------------------------------------------------------------------------------------------------------
542 Den-Mar Rehab. & Nursing Center 44 South Street Rockport MA 01966
- ----------------------------------------------------------------------------------------------------------------------
(improvements owned under ground lease)
- ----------------------------------------------------------------------------------------------------------------------
544 Augusta Rehabilitation Center 187 Eastern Avenue Augusta ME 04330
- ----------------------------------------------------------------------------------------------------------------------
545 Eastside Rehab. and Living Center 516 Mount Hope Avenue Bangor ME 04401
- ----------------------------------------------------------------------------------------------------------------------
546 Winship Green Nursing Center 51 Winship Street Bath ME 04530
- ----------------------------------------------------------------------------------------------------------------------
547 Brewer Rehabilitation & Living Center 74 Parkway South Brewer ME 04412
- ----------------------------------------------------------------------------------------------------------------------
549 Kennebunk Nursing Center 158 Ross Road Kennebunk ME 04043
- ----------------------------------------------------------------------------------------------------------------------
550 Norway Rehabilitation & Living Center 24 Marion Avenue Norway ME 04268
- ----------------------------------------------------------------------------------------------------------------------
552 Shore Village Rehab. & Nursing Center 201 Camden Street Rockland ME 04841
- ----------------------------------------------------------------------------------------------------------------------
554 Westgate Manor 750 Union Street Bangor ME 04401
- ----------------------------------------------------------------------------------------------------------------------
555 Brentwood Rehab. & Nursing Center 122 Portland Street Yarmouth ME 04096
- ----------------------------------------------------------------------------------------------------------------------
558 Fieldcrest Manor Nursing Home 126 Depot Street Waldoboro ME 04572
- ----------------------------------------------------------------------------------------------------------------------
559 Birchwood Terrace Healthcare 43 Starr Farm Road Burlington VT 05401
- ----------------------------------------------------------------------------------------------------------------------
(Improvements owned under ground lease)
- ----------------------------------------------------------------------------------------------------------------------
560 Franklin Woods Health Care Center 2770 Clime Road Columbus OH 42332
- ----------------------------------------------------------------------------------------------------------------------
562 Andrew House Healthcare 66 Clinic Drive New Britain CT 06051
- ----------------------------------------------------------------------------------------------------------------------
563 Camelot Nursing & Rehab. Center 89 Viets Street New London CT 06320
- ----------------------------------------------------------------------------------------------------------------------
565 Hamilton Rehab. & Healthcare Center 50 Palmer Street Norwich CT 06360
- ----------------------------------------------------------------------------------------------------------------------
566 Windsor Rehab. & Healthcare Center 581 Poquonock Avenue Windsor CT 06095
- ----------------------------------------------------------------------------------------------------------------------
567 Nutmeg Pavilion Healthcare 78 Viets Street Extension New London CT 06320
- ----------------------------------------------------------------------------------------------------------------------
568 Parkway Pavilion Healthcare 1157 Enfield Street Enfield CT 06082
- ----------------------------------------------------------------------------------------------------------------------
569 Chillicothe Nursing & Rehab. Center 60 Marietta Road Chillecothe OH 45601
- ----------------------------------------------------------------------------------------------------------------------
570 Pickerington Nursing & Rehab. Center 1300 Hill Road North Pickerington OH 43147
- ----------------------------------------------------------------------------------------------------------------------
571 Logan Health Care Center 300 Arlington Avenue Logan OH 43138
- ----------------------------------------------------------------------------------------------------------------------
572 Winchester Place Nsg. & Rehab. Center 36 Lehman Drive Canal Winchester OH 43110
- ----------------------------------------------------------------------------------------------------------------------
573 Eagle Pond Rehab. & Living Center One Love Lane South Dennis MA 02660
- ----------------------------------------------------------------------------------------------------------------------
577 Minerva Park Nursing & Rehab. Center 5460 Cleveland Avenue Columbus OH 43231
- ----------------------------------------------------------------------------------------------------------------------
578 West Lafayette Rehab & Nursing Center 620 East Main Street West Lafayette OH 43845
- ----------------------------------------------------------------------------------------------------------------------
581 Blueberry Hill Healthcare 75 Brimbal Avenue Beverly MA 01915
- ----------------------------------------------------------------------------------------------------------------------
582 Colony House Nursing & Rehab. Center 277 Washington Street Abington MA 02351
- ----------------------------------------------------------------------------------------------------------------------
583 Embassy House Sk. Nursing & Rehab. 2 Beaumont Avenue Brockton MA 02402
- ----------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------
FAC. FACILITY
- -----------------------------------------------------------------------------------
NO. NAME Owner
- -----------------------------------------------------------------------------------
<C> <S> <C>
538 West Roxbury Manor First Healthcare Corporation
- -----------------------------------------------------------------------------------
539 Newton and Wellesley Alzheimer Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
542 Den-Mar Rehab. & Nursing Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
(improvements owned under ground lease)
- -----------------------------------------------------------------------------------
544 Augusta Rehabilitation Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
545 Eastside Rehab. and Living Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
546 Winship Green Nursing Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
547 Brewer Rehabilitation & Living Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
549 Kennebunk Nursing Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
550 Norway Rehabilitation & Living Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
552 Shore Village Rehab. & Nursing Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
554 Westgate Manor First Healthcare Corporation
- -----------------------------------------------------------------------------------
555 Brentwood Rehab. & Nursing Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
558 Fieldcrest Manor Nursing Home First Healthcare Corporation
- -----------------------------------------------------------------------------------
559 Birchwood Terrace Healthcare First Healthcare Corporation
- -----------------------------------------------------------------------------------
(Improvements owned under ground lease)
- -----------------------------------------------------------------------------------
560 Franklin Woods Health Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
562 Andrew House Healthcare First Healthcare Corporation
- -----------------------------------------------------------------------------------
563 Camelot Nursing & Rehab. Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
565 Hamilton Rehab. & Healthcare Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
566 Windsor Rehab. & Healthcare Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
567 Nutmeg Pavilion Healthcare First Healthcare Corporation
- -----------------------------------------------------------------------------------
568 Parkway Pavilion Healthcare First Healthcare Corporation
- -----------------------------------------------------------------------------------
569 Chillicothe Nursing & Rehab. Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
570 Pickerington Nursing & Rehab. Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
571 Logan Health Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
572 Winchester Place Nsg. & Rehab. Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
573 Eagle Pond Rehab. & Living Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
577 Minerva Park Nursing & Rehab. Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
578 West Lafayette Rehab & Nursing Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
581 Blueberry Hill Healthcare First Healthcare Corporation
- -----------------------------------------------------------------------------------
582 Colony House Nursing & Rehab. Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
583 Embassy House Sk. Nursing & Rehab. First Healthcare Corporation
- -----------------------------------------------------------------------------------
</TABLE>
PAGE 4
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------
FAC. FACILITY
- ----------------------------------------------------------------------------------------------------------------------
NO. NAME ADDRESS CITY STATE ZIP
- ----------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C>
584 Franklin Sk. Nursing & Rehab. Center 130 Chestnut Street Franklin MA 02038
- ----------------------------------------------------------------------------------------------------------------------
585 Great Barrington Rehab. & Nursing Ctr. 148 Maple Avenue Great Barrington MA 01230
- ----------------------------------------------------------------------------------------------------------------------
587 River Terrace 1675 Main Street Lancaster MA 01523
- ----------------------------------------------------------------------------------------------------------------------
588 Walden Rehab. & Nursing Center 785 Main Street Concord MA 01742
- ----------------------------------------------------------------------------------------------------------------------
591 Dover Rehab. & Living Center 307 Plaza Drive Dover NH 03820
- ----------------------------------------------------------------------------------------------------------------------
592 Greenbriar Terrace Healthcare 55 Harris Road Nashua NH 03062
- ----------------------------------------------------------------------------------------------------------------------
(Improvements owned under ground lease)
- ----------------------------------------------------------------------------------------------------------------------
593 Hanover Terrace Healthcare 53 Lyme Road Hanover NH 03755
- ----------------------------------------------------------------------------------------------------------------------
634 Cambridge Health & Rehab. Center 1471 Wills Creek Valley Drive Cambridge OH 43725
- ----------------------------------------------------------------------------------------------------------------------
635 Coshocton Health & Rehab. Center 100 South Whitewoman Street Coshocton OH 43812
- ----------------------------------------------------------------------------------------------------------------------
637 Evergreen Woods Health & Rehab. 7045 Evergreen Woods Tr. Springhill FL 34608
- ----------------------------------------------------------------------------------------------------------------------
640 Las Vegas Healthcare & Rehab. Center 2832 South Maryland Parkway Las Vegas NV 89109
- ----------------------------------------------------------------------------------------------------------------------
641 Torrey Pines Care Center 1701 South Torrey Pines Drive Las Vegas NV 89012
- ----------------------------------------------------------------------------------------------------------------------
642 Hillhaven Convalescent Center Las Vegas NV
- ----------------------------------------------------------------------------------------------------------------------
645 Specialty Care of Marietta 26 Tower Road Marietta GA 30060
- ----------------------------------------------------------------------------------------------------------------------
655 Federal Heights Rehab. & Nsg. Center 41 South Ninth Street Salt Lake City UT 84102
- ----------------------------------------------------------------------------------------------------------------------
660 Savannah Specialty Care Center 11800 Abercom Street Savannah GA 31419
- ----------------------------------------------------------------------------------------------------------------------
690 Wasatch Valley Rehabilitation 2200 East 3300 South Salt Lake City UT 84109
- ----------------------------------------------------------------------------------------------------------------------
694 Wedgewood Healthcare Center 101 Potters Lane Clarksville IN 47129
- ----------------------------------------------------------------------------------------------------------------------
695 Grayling Health Care Center Grayling MI
- ----------------------------------------------------------------------------------------------------------------------
704 Guardian Care of Roanoke Rapids 305 Fourteenth Street Roanoke Rapids NC 27870
- ----------------------------------------------------------------------------------------------------------------------
706 Guardian Care of Henderson 280 South Beckford Drive Henderson NC 27536
- ----------------------------------------------------------------------------------------------------------------------
707 Rehab. & Nursing Center of Monroe 1212 Sunset Drive East Monroe NC 28112
- ----------------------------------------------------------------------------------------------------------------------
711 Guardian Care of Kinston 907 Cunningham Road Kinston NC 28501
- ----------------------------------------------------------------------------------------------------------------------
713 Guardian Care of Zebulon 509 West Gannon Avenue Zebulon NC 27597
- ----------------------------------------------------------------------------------------------------------------------
723 Guardian Care of Rocky Mount 160 Winstead Avenue Rocky Mount NC 27804
- ----------------------------------------------------------------------------------------------------------------------
(Improvements owned under ground lease)
- ----------------------------------------------------------------------------------------------------------------------
724 Rehab. & Health Care of Gastonia 416 North Highland Avenue Gastonia NC 28052
- ----------------------------------------------------------------------------------------------------------------------
726 Guardian Care of Elizabeth City 901 Halstead Boulevard Elizabeth City NC 17909
- ----------------------------------------------------------------------------------------------------------------------
738 Bay View Nursing & Rehab. Center 516 Willow Street Alameda CA 94501
- ----------------------------------------------------------------------------------------------------------------------
742 Sonoran Rehab. & Care Center 4202 North 20th Avenue Phoenix AZ 85015
- ----------------------------------------------------------------------------------------------------------------------
743 Desert Life Rehab. & Care Center 1919 W. Medical Street Tucson AZ 85704
- ----------------------------------------------------------------------------------------------------------------------
744 Cherry Hills Health Care Center 3575 South Washington Street Englewood CO 80110
- ----------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------
FAC. FACILITY
- -----------------------------------------------------------------------------------
NO. NAME Owner
- -----------------------------------------------------------------------------------
<C> <S> <C>
584 Franklin Sk. Nursing & Rehab. Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
585 Great Barrington Rehab. & Nursing Ctr. First Healthcare Corporation
- -----------------------------------------------------------------------------------
587 River Terrace First Healthcare Corporation
- -----------------------------------------------------------------------------------
588 Walden Rehab. & Nursing Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
591 Dover Rehab. & Living Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
592 Greenbriar Terrace Healthcare First Healthcare Corporation
- -----------------------------------------------------------------------------------
(Improvements owned under ground lease)
- -----------------------------------------------------------------------------------
593 Hanover Terrace Healthcare First Healthcare Corporation
- -----------------------------------------------------------------------------------
634 Cambridge Health & Rehab. Center Nationwide Care, Inc.
- -----------------------------------------------------------------------------------
635 Coshocton Health & Rehab. Center Nationwide Care, Inc.
- -----------------------------------------------------------------------------------
637 Evergreen Woods Health & Rehab. Nationwide Care, Inc.
- -----------------------------------------------------------------------------------
640 Las Vegas Healthcare & Rehab. Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
641 Torrey Pines Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
642 Hillhaven Convalescent Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
645 Specialty Care of Marietta First Healthcare Corporation
- -----------------------------------------------------------------------------------
655 Federal Heights Rehab. & Nsg. Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
660 Savannah Specialty Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
690 Wasatch Valley Rehabilitation First Healthcare Corporation
- -----------------------------------------------------------------------------------
694 Wedgewood Healthcare Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
695 Grayling Health Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
704 Guardian Care of Roanoke Rapids First Healthcare Corporation
- -----------------------------------------------------------------------------------
706 Guardian Care of Henderson First Healthcare Corporation
- -----------------------------------------------------------------------------------
707 Rehab. & Nursing Center of Monroe First Healthcare Corporation
- -----------------------------------------------------------------------------------
711 Guardian Care of Kinston First Healthcare Corporation
- -----------------------------------------------------------------------------------
713 Guardian Care of Zebulon First Healthcare Corporation
- -----------------------------------------------------------------------------------
723 Guardian Care of Rocky Mount First Healthcare Corporation
- -----------------------------------------------------------------------------------
(Improvements owned under ground lease)
- -----------------------------------------------------------------------------------
724 Rehab. & Health Care of Gastonia First Healthcare Corporation
- -----------------------------------------------------------------------------------
726 Guardian Care of Elizabeth City First Healthcare Corporation
- -----------------------------------------------------------------------------------
738 Bay View Nursing & Rehab. Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
742 Sonoran Rehab. & Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
743 Desert Life Rehab. & Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
744 Cherry Hills Health Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
</TABLE>
PAGE 5
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------
FAC. FACILITY
- ----------------------------------------------------------------------------------------------------------------------
NO. NAME ADDRESS CITY STATE ZIP
- ----------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C>
745 Aurora Care Center 10201 East Third Avenue Aurora CO 80010
- ----------------------------------------------------------------------------------------------------------------------
746 Homestead Health Care & Rehab. Center 4735 South 54th Street Lincoln NE 68516
- ----------------------------------------------------------------------------------------------------------------------
764 Woodside Convalescent Center 501 8th Avenue Southeast Rochester MN 55904
- ----------------------------------------------------------------------------------------------------------------------
765 Eastview Mecial & Rehab. Center 729 Park Street Antigo WI 54409
- ----------------------------------------------------------------------------------------------------------------------
766 Colonial Manor Medical & Rehab Center 1010 East Wausau Avenue Wausau WI 54403
- ----------------------------------------------------------------------------------------------------------------------
767 Colony Oaks Care Center 601 Briarcliff Drive Appleton WI 54915
- ----------------------------------------------------------------------------------------------------------------------
769 North Ridge Med. & Rehab. Center 1445 North 7th Street Manitowoc WI 54220
- ----------------------------------------------------------------------------------------------------------------------
770 Vallhaven Care Center 125 Byrd Avenue Neenah WI 54956
- ----------------------------------------------------------------------------------------------------------------------
771 Kennedy Park Medical & Rehab. Center 6001 Alderson Street Schofield WI 54476
- ----------------------------------------------------------------------------------------------------------------------
772 Family Heritage Med. & Rehab. Center 130 Strawberry Lane Wisconsin Rapid WI 54494
- ----------------------------------------------------------------------------------------------------------------------
773 Mt. Carmel Medical & Rehab. Center 677 East State Street Burlington WI 53105
- ----------------------------------------------------------------------------------------------------------------------
774 Mt. Carmel Health & Rehab. Center 5700 West Layton Avenue Milwaukee WI 53220
- ----------------------------------------------------------------------------------------------------------------------
775 Sheridan Medical Complex 8400 Sheridan Road Kenosha WI 53140
- ----------------------------------------------------------------------------------------------------------------------
776 Woodstock Health & Rehab. Center 3415 Sheridan Road Kenosha WI 53140
- ----------------------------------------------------------------------------------------------------------------------
777 Clara Barton Terrace Flint MI
- ----------------------------------------------------------------------------------------------------------------------
778 Mary Avenue Care Center Lansing MI
- ----------------------------------------------------------------------------------------------------------------------
779 Westview Nursing & Rehab. Center 1510 Clinic Drive Bedford IN 47421
- ----------------------------------------------------------------------------------------------------------------------
780 Columbus Health & Rehab. Center 2100 Midway Columbus IN 47201
- ----------------------------------------------------------------------------------------------------------------------
782 Danville Centre for Health & Rehab. 642 North 3rd Street Danville KY 40422
- ----------------------------------------------------------------------------------------------------------------------
783 Lexington Centre for Health & Rehab. 353 Waller Avenue Lexington KY 40504
- ----------------------------------------------------------------------------------------------------------------------
784 North Centre for Health & Rehab. 6000 Hunting Road Louisville KY 40222
- ----------------------------------------------------------------------------------------------------------------------
785 Hillcrest Health Care Center 3740 Old Hartford Road Owensboro KY 42303
- ----------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------
FAC. FACILITY
- -----------------------------------------------------------------------------------
NO. NAME Owner
- -----------------------------------------------------------------------------------
<C> <S> <C>
745 Aurora Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
746 Homestead Health Care & Rehab. Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
764 Woodside Convalescent Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
765 Eastview Mecial & Rehab. Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
766 Colonial Manor Medical & Rehab Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
767 Colony Oaks Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
769 North Ridge Med. & Rehab. Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
770 Vallhaven Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
771 Kennedy Park Medical & Rehab. Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
772 Family Heritage Med. & Rehab. Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
773 Mt. Carmel Medical & Rehab. Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
774 Mt. Carmel Health & Rehab. Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
775 Sheridan Medical Complex First Healthcare Corporation
- -----------------------------------------------------------------------------------
776 Woodstock Health & Rehab. Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
777 Clara Barton Terrace First Healthcare Corporation
- -----------------------------------------------------------------------------------
778 Mary Avenue Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
779 Westview Nursing & Rehab. Center Hillhaven/Indiana Partnership
- -----------------------------------------------------------------------------------
780 Columbus Health & Rehab. Center Hillhaven/Indiana Partnership
- -----------------------------------------------------------------------------------
782 Danville Centre for Health & Rehab. First Healthcare Corporation
- -----------------------------------------------------------------------------------
783 Lexington Centre for Health & Rehab. First Healthcare Corporation
- -----------------------------------------------------------------------------------
784 North Centre for Health & Rehab. First Healthcare Corporation
- -----------------------------------------------------------------------------------
785 Hillcrest Health Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
</TABLE>
PAGE 6
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------
FAC. FACILITY
- ----------------------------------------------------------------------------------------------------------------------
NO. NAME ADDRESS CITY STATE ZIP
- ----------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C>
787 Woodland Terrace Health Care Fac. 1117 Woodland Drive Elizabethtown KY 42701
- ----------------------------------------------------------------------------------------------------------------------
791 Rehab. & Healthcare Ctr. of Huntsville 105 Teakwood Drive Huntsville AL 35801
- ----------------------------------------------------------------------------------------------------------------------
796 Hacienda Rehab. & Care Center 660 S. Coronado Drive Sierra Vista AZ 85635
- ----------------------------------------------------------------------------------------------------------------------
802 Bridgepark Ctr. for Rehab. & Nsg. Sv. 145 Olive Street Akron OH 44310
- ----------------------------------------------------------------------------------------------------------------------
804 Rehab. & Healthc. Ctr. of Birmingham 2728 Tenth Avenue South Birmingham AL 35205
- ----------------------------------------------------------------------------------------------------------------------
(improvements owned under ground lease)
- ----------------------------------------------------------------------------------------------------------------------
806 Chapel Hill Rehab. & Healthcare Ctr. 1602 East Franklin Street Chapel Hill NC 27514
- ----------------------------------------------------------------------------------------------------------------------
822 Primacy Healthcare & Rehab. Ctr. 6025 Primacy Parkway Memphis TN 38119
- ----------------------------------------------------------------------------------------------------------------------
824 Rehab. & Healthcare Ctr. of Mobile 1758 Spring Hill Avenue Mobile AL 36607
- ----------------------------------------------------------------------------------------------------------------------
(Improvements owned under ground lease)
- ----------------------------------------------------------------------------------------------------------------------
825 Nansemond Pointe Rehab. & HC Ctr. 200 West Constance Road Suffolk VA 23434
- ----------------------------------------------------------------------------------------------------------------------
826 Harbour Pointe Med. & Rehab. Centre 1005 Hampton Boulevard Norfolk VA 23507
- ----------------------------------------------------------------------------------------------------------------------
829 River Pointe Rehab. & Healthcare Center 4142 Bonney Road Virginia Beach VA 23452
- ----------------------------------------------------------------------------------------------------------------------
836 Rehab. & Healthcare Ctr. of Tampa 4411 North Habana Avenue Tampa FL 33614
- ----------------------------------------------------------------------------------------------------------------------
837 Rehab. & Health Ctr. of Cape Coral 2629 Del Prado Boulevard Cape Coral FL 33904
- ----------------------------------------------------------------------------------------------------------------------
842 Bay Pointe Medical & Rehab. Centre 1148 First Colonial Road Virginia Beach VA 23454
- ----------------------------------------------------------------------------------------------------------------------
851 Villa Campana Health Center 6651 East Carondelet Drive Tucson AZ 85710
- ----------------------------------------------------------------------------------------------------------------------
853 Kachina Point Health Care & Rehab. 505 Jacks Canyon Road Sedona AZ 86351
- ----------------------------------------------------------------------------------------------------------------------
859 Castle Garden Care Center 401 Malley Drive Northglenn CO 80233
- ----------------------------------------------------------------------------------------------------------------------
864 Harrodsburg Health Care Center 853 Lexington Road Harrodsburg KY 40330
- ----------------------------------------------------------------------------------------------------------------------
868 Lebanon Country Manor 700 Monroe Road Lebanon OH 45036
- ----------------------------------------------------------------------------------------------------------------------
873 Brighton Care Center 2025 East Egbert Street Brighton CO 80601
- ----------------------------------------------------------------------------------------------------------------------
884 Masters Health Care Center 278 Dry Valley Road Algood TN 38506
- ----------------------------------------------------------------------------------------------------------------------
922 Windsor Woods Convalescent Ctr. 13719 Dallas Drive Hudson FL 34667
- ----------------------------------------------------------------------------------------------------------------------
982 Village Square Nsg. & Rehab. Center 1586 West San Marcos Boulevard San Marcos CA 92069
- ----------------------------------------------------------------------------------------------------------------------
920 Marietta Convalescent Center Marietta OH
- ----------------------------------------------------------------------------------------------------------------------
(3636)
- ----------------------------------------------------------------------------------------------------------------------
985 Harrington House Nsg. & Rehab. Center 160 Main Street Walpole MA 02081
- ----------------------------------------------------------------------------------------------------------------------
1217 Casa Mora Rehab. & Extended Care 1902 49th Street West Bradenton FL 34209
- ----------------------------------------------------------------------------------------------------------------------
(Improvements owned under ground lease)
- ----------------------------------------------------------------------------------------------------------------------
421 North Broward Rehab. & Nsg. Center 402 East Sample Road Pompano Beach FL 33064
- ----------------------------------------------------------------------------------------------------------------------
(1218)
- ----------------------------------------------------------------------------------------------------------------------
511 Highland Pines Rehab. Center 111 South Highland Avenue Clearwater FL 34616
- ----------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------
FAC. FACILITY
- -----------------------------------------------------------------------------------
NO. NAME Owner
- -----------------------------------------------------------------------------------
<C> <S> <C>
787 Woodland Terrace Health Care Fac. First Healthcare Corporation
- -----------------------------------------------------------------------------------
791 Rehab. & Healthcare Ctr. of Huntsville First Healthcare Corporation
- -----------------------------------------------------------------------------------
796 Hacienda Rehab. & Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
802 Bridgepark Ctr. for Rehab. & Nsg. Sv. First Healthcare Corporation
- -----------------------------------------------------------------------------------
804 Rehab. & Healthc. Ctr. of Birmingham First Healthcare Corporation
- -----------------------------------------------------------------------------------
(improvements owned under ground lease)
- -----------------------------------------------------------------------------------
806 Chapel Hill Rehab. & Healthcare Ctr. First Healthcare Corporation
- -----------------------------------------------------------------------------------
822 Primacy Healthcare & Rehab. Ctr. First Healthcare Corporation
- -----------------------------------------------------------------------------------
824 Rehab. & Healthcare Ctr. of Mobile First Healthcare Corporation
- -----------------------------------------------------------------------------------
(Improvements owned under ground lease)
- -----------------------------------------------------------------------------------
825 Nansemond Pointe Rehab. & HC Ctr. First Healthcare Corporation
- -----------------------------------------------------------------------------------
826 Harbour Pointe Med. & Rehab. Centre First Healthcare Corporation
- -----------------------------------------------------------------------------------
829 River Pointe Rehab. & Healthcare Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
836 Rehab. & Healthcare Ctr. of Tampa First Healthcare Corporation
- -----------------------------------------------------------------------------------
837 Rehab. & Health Ctr. of Cape Coral First Healthcare Corporation
- -----------------------------------------------------------------------------------
842 Bay Pointe Medical & Rehab. Centre First Healthcare Corporation
- -----------------------------------------------------------------------------------
851 Villa Campana Health Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
853 Kachina Point Health Care & Rehab. First Healthcare Corporation
- -----------------------------------------------------------------------------------
859 Castle Garden Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
864 Harrodsburg Health Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
868 Lebanon Country Manor First Healthcare Corporation
- -----------------------------------------------------------------------------------
873 Brighton Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
884 Masters Health Care Center First Healthcare Corporation
- -----------------------------------------------------------------------------------
922 Windsor Woods Convalescent Ctr. WindsorWoods Nsg.Hm.Prtnrs.
- -----------------------------------------------------------------------------------
982 Village Square Nsg. & Rehab. Center San Macros Nsg. Hm. Ptnrsh.
- -----------------------------------------------------------------------------------
920 Marietta Convalescent Center Nationwide Care, Inc.
- -----------------------------------------------------------------------------------
(3636)
- -----------------------------------------------------------------------------------
985 Harrington House Nsg. & Rehab. Center New Pond Village Associates
- -----------------------------------------------------------------------------------
1217 Casa Mora Rehab. & Extended Care Ventas, Inc.
- -----------------------------------------------------------------------------------
(Improvements owned under ground lease)
- -----------------------------------------------------------------------------------
421 North Broward Rehab. & Nsg. Center Ventas, Inc.
- -----------------------------------------------------------------------------------
(1218)
- -----------------------------------------------------------------------------------
511 Highland Pines Rehab. Center Ventas, Inc.
- -----------------------------------------------------------------------------------
</TABLE>
PAGE 7
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------
FAC. FACILITY
- ----------------------------------------------------------------------------------------------------------------------
NO. NAME ADDRESS CITY STATE ZIP
- ----------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C>
(1220)
- ----------------------------------------------------------------------------------------------------------------------
1221 Courtland Gardens Health Center, Inc. 53 Courtland Avenue Stamford CT 06902
- ----------------------------------------------------------------------------------------------------------------------
1224 Health Havens Nursing & Rehab. Center 100 Wampanoag Trail E. Providence RI 02915
- ----------------------------------------------------------------------------------------------------------------------
1226 Homestead Health Care 160 Glenbrook Road Stamford CT 06902
- ----------------------------------------------------------------------------------------------------------------------
422 Lafayette Nursing & Rehab. Center 110 Brandywine Boulevard Fayetteville GA 30214
- ----------------------------------------------------------------------------------------------------------------------
(1228)
- ----------------------------------------------------------------------------------------------------------------------
1231 Oak Hill Nursing & Rehab. Center 544 Pleasant Street Pawtucket RI 02860
- ----------------------------------------------------------------------------------------------------------------------
423 Pompano Rehab/Nursing Center 51 West Sample Road Pompano Beach FL 33064
- ----------------------------------------------------------------------------------------------------------------------
(1232)
- ----------------------------------------------------------------------------------------------------------------------
424 Abbey Rehab. & Nursing Center 7101 9th Street, North St. Petersburg FL 33702
- ----------------------------------------------------------------------------------------------------------------------
(1233)
- ----------------------------------------------------------------------------------------------------------------------
425 San Pedro Manor 515 W. Ashby Place San Antonio TX 78212
- ----------------------------------------------------------------------------------------------------------------------
(1234)
- ----------------------------------------------------------------------------------------------------------------------
426 Wyomissing Nursing & Rehab. Center 1000 E. Wyomissing Boulevard Reading PA 19611
- ----------------------------------------------------------------------------------------------------------------------
(1237)
- ----------------------------------------------------------------------------------------------------------------------
1238 Tucker Nursing Center 2165 Idlewood Road Tucker GA 30084
- ----------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------
FAC. FACILITY
- -----------------------------------------------------------------------------------
NO. NAME Owner
- -----------------------------------------------------------------------------------
<C> <S> <C>
(1220)
- -----------------------------------------------------------------------------------
1221 Courtland Gardens Health Center, Inc. Ventas, Inc.
- -----------------------------------------------------------------------------------
1224 Health Havens Nursing & Rehab. Center Health Haven Associates, L.P.
- -----------------------------------------------------------------------------------
1226 Homestead Health Care Ventas, Inc.
- -----------------------------------------------------------------------------------
422 Lafayette Nursing & Rehab. Center Ventas, Inc.
- -----------------------------------------------------------------------------------
(1228)
- -----------------------------------------------------------------------------------
1231 Oak Hill Nursing & Rehab. Center Oak Hill Nursing Ass., L.P.
- -----------------------------------------------------------------------------------
423 Pompano Rehab/Nursing Center Ventas, Inc.
- -----------------------------------------------------------------------------------
(1232)
- -----------------------------------------------------------------------------------
424 Abbey Rehab. & Nursing Center Ventas, Inc.
- -----------------------------------------------------------------------------------
(1233)
- -----------------------------------------------------------------------------------
425 San Pedro Manor Ventas, Inc.
- -----------------------------------------------------------------------------------
(1234)
- -----------------------------------------------------------------------------------
426 Wyomissing Nursing & Rehab. Center Ventas, Inc.
- -----------------------------------------------------------------------------------
(1237)
- -----------------------------------------------------------------------------------
1238 Tucker Nursing Center Ventas, Inc.
- -----------------------------------------------------------------------------------
</TABLE>
PAGE 8
<PAGE>
SCHEDULE 4.25 TO CREDIT AGREEMENT
OWNER OF FACILITY ON CLOSING DATE - HOSPITALS
<TABLE>
<CAPTION>
Facility.
No. Facility Name Address City ST Zip Owner
<S> <C> <C> <C> <C> <C> <C>
647 Vencor Hospital. 5100 West Sahara Avenue Las Vegas NV 89102 Ventas, Inc.
Las Vegas
641 Vencor Hospital. 1701 South Torrey Pines Las Vegas NV 89102 First Healthcare
Las Vegas West Corporation
(Hospital located within
Torrey Pines Care Center)
644 THC . Orange County 875 North Brea Blvd. Brea CA 92821 Ventas, Inc.
664 Vencor Hospital 700 High Street, N.W. Albuquerque NM 87102 Ventas, Inc.
.Albequerque
(OWN IMPROVEMENTS
UNDERGROUND LEASE)
617 Vencor Hospital. 601 South Carlin Springs Road Arlington VA 22204 Vencor Hospitals
Arlington, VA East, Inc.
688 Vencor Hospital. 1515 Commonwealth Avenue Boston MA 2135 Hahnemann
Boston Hospital, Inc.
673 Vencor Hospital. 15 King Street Peabody MA 1960 Ventas, Inc.
Boston Northshore
674 Vencor Hospital. 4801 North Howard Avenue Tampa FL 33603 Ventas, Inc.
Central Tampa
628 Vencor Hospital. 709 Walnut Street Chattanooga TN 37402 Ventas, Inc.
Chattanooga
0637 Vencor Hospital. 2544 West Montrose Avenue Chicago IL 60618 Vencor Hospitals
Chicago North Illinois, Inc.
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
602 Vencor Hospital. 5190 Southwest 8th Street Coral Gables FL 33134 Ventas, Inc.
Coral Gables
665 Vencor Hospital. 1920 High Street Denver CO 80218 Ventas, Inc.
Denver
675 Vencor Hospital. 26400 West Outer Drive Lincoln Park MI 48146 Ventas, Inc.
Detroit
653 Vencor Hospital. 7800 Oakmont Blvd. Ft. Worth TX 76132 Ventas, Inc.
Ft. Worth Southwest
668 Vencor Hospital. 815 Eighth Avenue Ft. Worth TX 76104 Ventas, Inc.
Ft. Worth West
645 Vencor Hospital. 1516 East Las Olas Blvd. Ft. Lauderdale FL 33301 Ventas, inc.
Ft. Lauderdale
662 Vencor Hospital. 2401 Southside Blvd. Greensboro NC 2746 Vencor Hospitals
Greensboro East, Inc.
676 Vencor Hospital. 1859 Van Buren Street Hollywood FL 33020 Ventas, Inc.
Hollywood
685 Vencor Hospital. 6441 Main Street Houston TX 77030 Ventas, Inc.
Houston
(OWN IMPROVEMENTS
UNDERGROUND LEASE)
654 Vencor Hospital. 11297 Fallbrook Drive Houston TX 77065 Ventas, Inc.
Houston Northwest
638 Vencor Hospital. 1700 West 10th Street Indianapolis IN 46222 Ventas, Inc.
Indianapolis
612 Vencor Hospital. 8701 Troost Kansas City MO 64131 Ventas, Inc.
Kansas City
620 Vencor Hospital. 207 North Towline Road LaGrange IN 46761 Ventas, Inc.
LaGrange
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
633 Vencor Hospital. 1313 St. Anthony Place Louisville KY 40204 Ventas, Inc.
Louisville
660 Vencor Hospital. 1802 Hwy. 157 North Mansfield TX 76063 Ventas, Inc.
Mansfield
677 Vencor Hospital. 700 M.L. King, Jr. Blvd. Detroit MI 48208 Ventas, Inc.
Metro Detroit
659 Vencor Hospital. 4101 Golden Valley Road Golden Valley MN 55422 Ventas, Inc.
Minneapolis
631 Vencor Hospital. 5700 West Layton Avenue Milwaukee WI 53220 Vencor Hospitals
Mt. Carmel East, Inc.
666 Vencor Hospital. 3601 Coliseum Street New Orleans LA 70115 Ventas, Inc.
New Orleans
656 Vencor Hospital. 40 East Indianola Avenue Phoenix AZ 85012 Ventas, Inc.
Phoenix
658 Vencor Hospital. 355 North Wilmot Road Tucson AZ 85711 Ventas, Inc.
Tucson
607 Vencor Hospital. 550 North Monterey Avenue Ontario CA 91764 Ventas, Inc.
Ontario
622 Vencor Hospital. 2800 Benedict Drive San Leandro CA 94577 Ventas, Inc.
San Leandro
642 Vencor Hospital. 200 Hospital Circle Westminster CA 92683 Ventas, Inc.
Orange County
648 Vencor Hospital. 1940 El Cajon Blvd. San Diego CA 92104 Ventas, Inc.
San Diego
611 Vencor Hospital. 303 Sixth Street St. Petersburg FL 33705 Ventas, Inc.
St. Petersburg
652 Vencor Hospital. 801 Oak Street Green Cove Spring FL 32043 Ventas, Inc.
North Florida
615 Vencor Hospital. 225 Edward Street Sycamore IL 60178 Vencor Hospitals
Sycamore Illinois, Inc.
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
690 Vencor Hospital. 365 East North Avenue Northlake IL 60164 Vencor Hospitals
Northlake Illinois, Inc.
680 Vencor Hospital. 4930 Lindell Blvd. St. Louis MO 63108 Ventas, Inc.
St. Louis
618 Vencor Hospital. 1407 North Robinson Avenue Oklahoma City OK 73103 Ventas, Inc.
Oklahoma City
614 Vencor Hospital. 6129 Palmetto Street Philadelphia PA 19111 Vencor Hospitals
Philadelphia East, Inc.
619 Vencor Hospital. 7777 Steubenville Pike Oakdale PA 15071 Vencor Hospitals
Pittsburgh East, Inc.
635 Vencor Hospital. 3636 Medical Drive San Antonio TX 78229 Ventas, Inc.
San Antonio
693 Recovery Inn of Menlo 570 Willow Road Menlo Park CA 94025 Ventas, Inc.
Park
671 Vencor . Lakeshore 6130 North Sheridan Road Chicago IL 60660 Ventas, Inc.
</TABLE>
<PAGE>
SCHEDULE 5.8
INDEMNIFIED CONTINGENT OBLIGATIONS
Obligation Amount Indemnity From:
- ---------- ------ ---------------
($ in millions)
949 - Ledgewood Health Care 1.8 Vencor Operating, Inc.
983 - Clark House 3.3 Vencor Operating, Inc.
995 - Starr Farm 2.1 Vencor Operating, Inc.
920 - Jackson Browne 0.8
227 - leased IRB 0.4 Vencor Operating, Inc.
3440/7188 - New Pond Village 34 Atria Communities, Inc.
Omega Healthcare 0.3 Vencor Operating, Inc.
Tenet Guarantee Reimb. Agmt --- Vencor Operating, Inc.
390 - Carmel Mountain 5.4 Sun Healthcare Group, Inc.
<PAGE>
SCHEDULE 5.22
EXISTING AFFILIATE AGREEMENTS
1. Amended and Restated Guarantee Reimbursement Agreement dated as of April
29, 1998, among Vencor, Inc., Vencor Healthcare Inc. and Tenet Healthcare
Corporation, Inc.
1. Management Agreements dated as of January 31, 1990 between Tenet Healthcare
Corporation (formerly named National Medical Enterprises, Inc.) and Vencor
(as successor by merger to The Hillhaven Corporation) relating to the
following facilities:
Fac. No. Facility Name
-------- -------------
902 Alvarado Convalescent, San Diego, California
974 J.D. French Center, Los Alamitos, California
169 Menorah House, Palm Beach, Florida
815 Del Ray Beach, Del Ray Beach, Florida
98 Northshore Living Center, Slidell, Louisiana
993 Brookhaven Nursing Center, Carrollton, Texas
990 Jo Ellen Smith, New Orleans, Louisiana
1. Tax Sharing Agreement dated as of January 31, 1990 between Tenet Healthcare
Corporation (formerly named National Medical Enterprises, Inc.) and Vencor
(as successor by merger to The Hillhaven Corporation).
1. Insurance Agreement dated as of January 31, 1990 between Tenet Healthcare
Corporation (formerly named National Medical Enterprises, Inc.) and Vencor
(as successor by merger to The Hillhaven Corporation).
1. Agreement dated as of August 22, 1995, among Vencor (as successor by merger
to The Hillhaven Corporation), Vencor and Tenet Healthcare Corporation.
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I DEFINITIONS 1
Section 1.1. Definitions 1
Section 1.2. Accounting Terms and Determinations 27
Section 1.3. Types of Borrowings 27
ARTICLE II THE CREDITS 28
Section 2.1. Commitments to Lend 28
Section 2.2. Notice of Borrowing 32
Section 2.3. Intentionally Omitted. 34
Section 2.4. Notice to Banks; Funding of Loans 35
Section 2.5. Notes 36
Section 2.6. Maturity of Loans 37
Section 2.7. Interest Rates 37
Section 2.8. Fees 40
Section 2.9. Mandatory Termination 41
Section 2.10. Mandatory Prepayment 42
Section 2.11. Optional Prepayments 43
Section 2.12. General Provisions as to Payments 46
Section 2.13. Funding Losses 47
Section 2.14. Computation of Interest and Fees 48
Section 2.15. Method of Electing Interest Rates 48
Section 2.16. Letters of Credit 50
Section 2.17. Letter of Credit Usage Absolute 54
ARTICLE III CONDITIONS 55
Section 3.1. Closing 55
Section 3.2. Borrowings 58
Section 3.3. Additional Real Property Assets. 60
ARTICLE IV REPRESENTATIONS AND WARRANTIES 62
i
<PAGE>
Page
----
Section 4.1. Existence and Power 62
Section 4.2. Power and Authority 62
Section 4.3. No Violation; Government Approvals; Licenses 63
Section 4.4. Financial Information 64
Section 4.5. Litigation 64
Section 4.6. Compliance with ERISA 65
Section 4.7. Environmental Compliance 65
Section 4.8. Taxes 67
Section 4.9. Full Disclosure 67
Section 4.10. Solvency 67
Section 4.11. Use of Proceeds; Margin Regulations 67
Section 4.12. Investment Company Act; Public Utility
Holding Company Act 68
Section 4.13. Closing Date Transactions 68
Section 4.14. Representations and Warranties in Loan Documents 68
Section 4.15. Patents, Trademarks, etc. 68
Section 4.16. No Default 69
Section 4.17. Compliance With Law 69
Section 4.18. Brokers' Fees 69
Section 4.19. Labor Matters 69
Section 4.20. Organizational Documents 70
Section 4.21. Principal Offices 70
Section 4.22. Ownership of Property 70
Section 4.23. Insurance 70
Section 4.24. "Year 2000" Compliance 70
Section 4.25. REIT Status 71
ARTICLE V AFFIRMATIVE AND NEGATIVE COVENANTS 71
Section 5.1. Information 71
Section 5.2. Payment of Obligations 76
Section 5.3. Maintenance of Property; Insurance 76
Section 5.4. Conduct of Business 77
Section 5.5. Compliance with Laws 77
Section 5.6. Inspection of Property, Books and Records 77
Section 5.7. Existence 78
Section 5.8. Financial Covenants 78
Section 5.9. Restriction on Fundamental Changes;
ii
<PAGE>
Page
----
Operation and Control 80
Section 5.10. Fiscal Year; Fiscal Quarter 81
Section 5.11. Margin Stock 82
Section 5.12. Development Activities 82
Section 5.13. Interest Rate Protection 82
Section 5.14. Investments in Non-Healthcare Related Assets 82
Section 5.15. Investments in Minority Holdings 83
Section 5.16. Use of Proceeds 83
Section 5.17. Sale of Unencumbered Asset Pool Properties. 84
Section 5.18. Limitations On Subsidiary Debt 84
Section 5.19. Restrictions on Pledge 84
Section 5.20. Release of Properties. 85
Section 5.21. REIT Status 85
Section 5.22. Affiliate Transactions. 86
Section 5.23. Leases. 86
Section 5.24. New Subsidiaries. 89
Section 5.25. Borrower's Restructuring 89
ARTICLE VI DEFAULTS 90
Section 6.1. Events of Default 90
Section 6.2. Rights and Remedies 94
Section 6.3. Notice of Default 94
Section 6.4. Actions in Respect of Letters of Credit 95
ARTICLE VII THE AGENTS 98
Section 7.1. Appointment and Authorization 98
Section 7.2. Agent and Affiliates 98
Section 7.3. Action by Agents 98
Section 7.4. Consultation with Experts 98
Section 7.5. Liability of Agents 99
Section 7.6. Indemnification 99
Section 7.7. Credit Decision 99
Section 7.8. Successor Agents 100
ARTICLE VIII CHANGE IN CIRCUMSTANCES 101
iii
<PAGE>
Page
----
Section 8.1. Basis for Determining Interest Rate
Inadequate or Unfair 101
Section 8.2. Illegality 101
Section 8.3. Increased Cost and Reduced Return 102
Section 8.4. Taxes 104
Section 8.5. Base Rate Loans Substituted for Affected
Euro-Dollar Loans 107
Section 8.6. Substitution of Banks 108
iv
<PAGE>
Page
----
ARTICLE IX MISCELLANEOUS 110
Section 9.1. Notices 110
Section 9.2. No Waivers 110
Section 9.3. Expenses; Indemnification 111
Section 9.4. Sharing of Set-Offs 112
Section 9.5. Amendments and Waivers 114
Section 9.6. Successors and Assigns 115
Section 9.7. Governing Law; Submission to Jurisdiction 118
Section 9.8. Marshaling; Recapture 119
Section 9.9. Counterparts; Integration; Effectiveness 119
Section 9.10. WAIVER OF JURY TRIAL 119
Section 9.11. Survival 119
Section 9.12. Domicile of Loans 120
Section 9.13. Limitation of Liability 120
Exhibit A-1 Form of Note A-1
Exhibit A-2 Form of Swing Note A-1
Exhibit B Unencumbered Asset Pool Properties B-1
Exhibit C Preapproved Development Properties C-1
Exhibit D Assignment and Assumption Agreement D-1
Schedule 3.1 - Exceptions to Section 3.1
Schedule 4.3 - Exceptions to Section 4.3
Schedule 4.5 - Litigation
Schedule 4.19 - Labor Matters
Schedule 4.22 - Real Property Assets
Schedule 5.8 - Indemnified Contingent Obligations
Schedule 5.22 - Existing Affiliate Agreements
<PAGE>
Exhibit 10.2
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is made as of the 31st day of July, 1998
(the "Effective Date"), by and between Ventas, Inc., a Delaware corporation (the
"Company"), and ______________________ (the "Executive").
W I T N E S S E T H:
WHEREAS, the Executive is employed by the Company and the parties
hereto desire to provide for Executive's continued employment by the Company;
and
WHEREAS, the Board of Directors of the Company (the "Board") have
determined that it is in the best interests of the Company to enter into this
Agreement.
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements contained herein, and intending to be legally bound
hereby, the Company and Executive agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ Executive and
Executive hereby agrees to be employed by the Company on the terms and
conditions herein set forth. The initial term of this Agreement shall be for a
one-year period commencing on the Effective Date. The Term shall be
automatically extended by one additional day for each day beyond the Effective
Date that the Executive remains employed by the Company until such time as the
Company elects to cease such extension by giving written notice of such election
to the Executive. In such event, the Agreement shall terminate on the first
anniversary of the effective date of such election notice.
2. DUTIES. Executive is engaged by the Company in an executive
capacity.
3. EXTENT OF SERVICES. Executive, subject to the direction and
control of the Board, shall have the power and authority commensurate with his
executive status and necessary to perform his duties hereunder. During the
term, Executive shall devote his working time, attention, labor, skill and
energies to the business of the Company, and shall not, without the consent of
the Company, be actively engaged in any other business activity, whether or not
such business activity is pursued for gain, profit or other pecuniary advantage,
except for Executive's responsibilities as Chairman of the Board, Chief
Executive Officer and President of Vencor, Inc.
4. COMPENSATION. As compensation for services hereunder rendered,
Executive shall receive during the Term:
(a) A base salary ("Base Salary") of not less than [See Annex A] per
year payable in equal installments in accordance with the Company's normal
payroll procedures. Executive may receive increases in his Base Salary
from time to time, as approved by the Board.
(b) In addition to Base Salary, Executive may be eligible to receive
such other bonuses or incentive compensation as the Board may approve from
time to time.
<PAGE>
5. BENEFITS.
(a) Executive shall be entitled to participate in any and all
Executive pension benefit, welfare benefit (including, without limitation,
medical, dental, disability and group life insurance coverages) and fringe
benefit plans from time to time in effect for Executives of the Company and
its affiliates.
(b) Executive shall be entitled to participate in such bonus, stock
option, or other incentive compensation plans of the Company and its
affiliates in effect from time to time for executives of the Company.
(c) Executive shall be entitled to four weeks of paid vacation each
year. The Executive shall schedule the timing of such vacations in a
reasonable manner. The Executive may also be entitled to such other leave,
with or without compensation, as shall be mutually agreed by the Company
and Executive.
(d) Executive may incur reasonable expenses for promoting the
Company's business, including expenses for entertainment, travel and
similar items. The Company shall reimburse Executive for all such
reasonable expenses in accordance with the Company's reimbursement policies
and procedures.
6. TERMINATION OF EMPLOYMENT.
(a) DEATH OR DISABILITY. Executive's employment shall terminate
automatically upon Executive's death during the Term. If the Company
determines in good faith that the Disability of Executive has occurred
during the Term (pursuant to the definition of Disability set forth below),
it may give to Executive written notice of its intention to terminate
Executive's employment. In such event, Executive's employment with the
Company shall terminate effective on the 30th day after receipt of such
notice by Executive (the "Disability Effective Date"), provided that,
within the 30 days after such receipt, Executive shall not have returned to
full-time performance of Executive's duties. For purposes of this
Agreement, "Disability" shall mean Executive's absence from his full-time
duties hereunder for a period of 90 days.
(b) CAUSE. The Company may terminate Executive's employment during
the Term for Cause. For purposes of this Agreement, "Cause" shall mean the
Executive's (i) conviction of or plea of nolo contendere to a crime
involving moral turpitude; or (ii) willful and material breach by Executive
of his duties and responsibilities, which is committed in bad faith or
without reasonable belief that such breaching conduct is in the best
interests of the Company and its affiliates, but with respect to (ii) only
if the Board adopts a resolution by a vote of at least 75% of its members
so finding after giving the Executive and his attorney an opportunity to be
heard by the Board. Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board or based upon advice of
counsel for the Company shall be conclusively presumed to be done, or
omitted to be done, by Executive in good faith and in the best interests of
the Company.
(c) GOOD REASON. Executive's employment may be terminated by
Executive for
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Good Reason. "Good Reason" shall exist upon the occurrence, without
Executive's express written consent, of any of the following events:
(i) the Company shall assign to Executive duties of a
substantially non-executive or non-managerial nature;
(ii) an adverse change in Executive's status or position as an
executive officer of the Company, including, without limitation, an
adverse change in Executive's status or position as a result of a
diminution in Executive's duties and responsibilities (other than any
such change directly attributable to the fact that the Company is no
longer publicly owned);
(iii) the Company shall (A) materially reduce the Base Salary or
bonus opportunity of Executive, or (B) materially reduce his benefits
and perquisites (other than pursuant to a uniform reduction applicable
to all similarly situated executives of the Company);
(iv) the Company shall require Executive to relocate Executive's
principal business office more than 30 miles from its location on the
Effective Date; or
(v) the failure of the Company to obtain the assumption of this
Agreement as contemplated by Section 11(c).
For purposes of this Agreement, "Good Reason" shall not exist until after
Executive has given the Company notice of the applicable event within 90
days of such event and which is not remedied within 30 days after receipt
of written notice from Executive specifically delineating such claimed
event and setting forth Executive's intention to terminate employment if
not remedied; provided, that if the specified event cannot reasonably be
remedied within such 30-day period and the Company commences reasonable
steps within such 30-day period to remedy such event and diligently
continues such steps thereafter until a remedy is effected, such event
shall not constitute "Good Reason" provided that such event is remedied
within 60 days after receipt of such written notice.
(d) NOTICE OF TERMINATION. Any termination by the Company for Cause,
or by Executive for Good Reason, shall be communicated by Notice of
Termination given in accordance with this Agreement. For purposes of this
Agreement, a "Notice of Termination" means a written notice which (i)
indicates the specific termination provision in this Agreement relied upon,
(ii) sets forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the
provision so indicated, and (iii) specifies the intended termination date
(which date, in the case of a termination for Good Reason, shall be not
more than thirty days after the giving of such notice). The failure by
Executive or the Company to set forth in the Notice of Termination any fact
or circumstance which contributes to a showing of Good Reason or Cause
shall not waive any right of Executive or the Company, respectively,
hereunder or preclude Executive or the Company, respectively, from
asserting such fact or circumstance in enforcing Executive's or the
Company's rights hereunder.
(e) DATE OF TERMINATION. "Date of Termination" means (i) if
Executive's
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employment is terminated by the Company for Cause, or by Executive for Good
Reason, the later of the date specified in the Notice of Termination or the
date that is one day after the last day of any applicable cure period, (ii)
if Executive's employment is terminated by the Company other than for Cause
or Disability, or Executive resigns without Good Reason, the Date of
Termination shall be the date on which the Company or Executive notified
Executive or the Company, respectively, of such termination and (iii) if
Executive's employment is terminated by reason of death or Disability, the
Date of Termination shall be the date of death of Executive or the
Disability Effective Date, as the case may be.
7. OBLIGATIONS OF THE COMPANY UPON TERMINATION. Following any
termination of Executive's employment hereunder, the Company shall pay Executive
his Base Salary through the Date of Termination and any amounts owed to
Executive pursuant to the terms and conditions of the Executive benefit plans
and programs of the Company at the time such payments are due. In addition,
subject to Executive's execution of a general release of claims in form
satisfactory to the Company, Executive shall be entitled to the following
additional payments:
(a) DEATH OR DISABILITY. If, during the Term, Executive's employment
shall terminate by reason of Executive's death or Disability, the Company
shall pay to Executive (or his designated beneficiary or estate, as the
case may be) the prorated portion of any Target Bonus (as defined below)
Executive would have received for the year of termination of employment.
Such amount shall be paid within 30 days of the date when such amounts
would otherwise have been payable to the Executive if Executive's
employment had not terminated.
(b) GOOD REASON; OTHER THAN FOR CAUSE. If, during the Term, the
Company shall terminate Executive's employment other than for Cause (but
not for Disability), or the Executive shall terminate his employment for
Good Reason:
(1) Within fourteen (14) days of Executive's Date of Termination,
the Company shall pay to Executive (i) the prorated portion of the
Target Bonus for Executive for the year in which the Date of
Termination occurs, plus (ii) an amount equal to two (2) times the
Executive's Base Salary and Target Bonus as of the Date of
Termination.
For purposes of this Agreement: "Target Bonus" shall mean the
full amount of bonuses and/or performance compensation (other than
Base Salary and awards under the Company's 1997 Incentive Compensation
Plan) that would be payable to the Executive, assuming all performance
criteria on which such bonus and/or performance compensation are based
were deemed to be satisfied, in respect of services for the calendar
year in which the date in question occurs.
(2) For a period of two (2) years following the Date of
Termination, the Executive shall be treated as if he or she had
continued to be an Executive for all purposes under the Company's
Health Insurance Plan and Dental Insurance Plan; or if the Company has
not yet established its own Health Insurance Plan and/or Dental Plan
or the Executive is prohibited from participating in such plan, the
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Company shall, at its sole cost and expense, provide health and dental
insurance coverage for Executive which is equivalent to the coverage
provided to Executive as of the Date of Termination. Following this
continuation period, the Executive shall be entitled to receive
continuation coverage under Part 6 of Title I or ERISA ("COBRA
Benefits") treating the end of this period as a termination of the
Executive's employment if allowed by law.
(3) For a period of two (2) years following the Date of
Termination, Company shall maintain in force, at its expense, the
Executive's life insurance being provided by the Company as of the
Date of Termination.
(4) For a period of two (2) years following the Executive's Date
of Termination, the Company shall provide short-term and long-term
disability insurance benefits to Executive equivalent to the coverage
that the Executive would have had he remained employed under the
disability insurance plans applicable to Executive on the Date of
Termination. Should Executive become disabled during such period,
Executive shall be entitled to receive such benefits, and for such
duration, as the applicable plan provides.
(5) To the extent not already vested pursuant to the terms of
such plan, the Executive's interests under the Vencor, Inc. Retirement
Savings Plan and any Retirement Savings Plan of the Company shall be
automatically fully (i.e., 100%) vested, without regard to otherwise
applicable percentages for the vesting of employer matching
contributions based upon the Executive's years of service with the
Company.
(6) The Company shall adopt such amendments to its Executive
benefit plans, if any, as are necessary to effectuate the provisions
of this Agreement.
(7) The Company shall take such action as is required to cause
the promissory note (the "Tax Loan") entered into in respect of the
loan to Executive, dated in June of 1998 in an original principal
amount of $3,750,000 (the "Tax Loan") to be amended to provide that if
the Company shall terminate Executive's employment other than for
Cause or the Executive shall terminate his employment for Good Reason,
the Tax Loan and any payments scheduled to be made in respect thereof
shall continue to be paid in equal annual installments with a final
maturity date of ten (10) years from the date of the Tax Loan, and
interest thereon shall be forgiven annually.
(8) Executive shall be credited with an additional two (2) years
of vesting for purposes of all restricted stock awards and Executive
will have an additional two (2) years in which to exercise all
outstanding stock option awards.
(c) CAUSE; OTHER THAN FOR GOOD REASON. If Executive's employment
shall be terminated for Cause or Executive terminates employment without
Good Reason (and other than due to such Executive's death) during the Term,
this Agreement shall terminate without further additional obligations to
Executive under this Agreement.
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(d) DEATH AFTER TERMINATION. In the event of the death of Executive
during the period Executive is receiving payments pursuant to this
Agreement, Executive's designated beneficiary shall be entitled to receive
the balance of the payments; or in the event of no designated beneficiary,
the remaining payments shall be made to Executive's estate.
8. DISPUTES. Any dispute or controversy arising under, out of, or in
connection with this Agreement shall, at the election and upon written demand of
either party, be finally determined and settled by binding arbitration in the
City of Louisville, Kentucky, in accordance with the Labor Arbitration rules and
procedures of the American Arbitration Association, and judgment upon the award
may be entered in any court having jurisdiction thereof. The Company shall pay
all costs of the arbitration and all reasonable attorneys' and accountants' fees
of the Executive in connection therewith, including any litigation to enforce
any arbitration award.
9. SUCCESSORS.
(a) This Agreement is personal to Executive and without the prior
written consent of the Company shall not be assignable by Executive
otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(c) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, or any
business of the Company for which Executive's services are principally
performed, to assume expressly and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company as herein before defined and
any successor to its business and/or assets as aforesaid which assumes and
agrees to perform this Agreement by operation of law, or otherwise.
10. OTHER SEVERANCE BENEFITS. Executive hereby agrees that in
consideration for the payments to be received under this Agreement, Executive
waives any and all rights to any payments or benefits under any plans, programs,
contracts or arrangements of the Company or their respective affiliates that
provide for severance payments or benefits upon a termination of employment,
other than the Change in Control Severance Agreement between the Company and
Executive (the "Severance Agreement"); provided that any payments payable to
Executive hereunder shall be offset by any payments payable under the Severance
Agreement.
11. WITHHOLDING. All payments to be made to Executive hereunder will
be subject to all applicable required withholding of taxes.
12. NO MITIGATION. Executive shall have no duty to mitigate his
damages by seeking other employment and, should Executive actually receive
compensation from any such other employment, the payments required hereunder
shall not be reduced or offset by any such
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compensation. Further, the Company's obligations to make any payments hereunder
shall not be subject to or affected by any setoff, counterclaims or defenses
which the Company may have against Executive or others.
13. NOTICES. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been duly given when
delivered or sent by telephone facsimile transmission, personal or overnight
couriers, or registered mail with confirmation of receipt, addressed as follows:
If to Executive:
------------------
------------------
------------------
If to Company:
Ventas, Inc.
400 West Market Street, Suite 3300
Louisville, KY 40202
Attn: General Counsel
14. WAIVER OF BREACH AND SEVERABILITY. The waiver by either party of
a breach of any provision of this Agreement by the other party shall not operate
or be construed as a waiver of any subsequent breach by either party. In the
event any provision of this Agreement is found to be invalid or unenforceable,
it may be severed from the Agreement and the remaining provisions of the
Agreement shall continue to be binding and effective.
15. ENTIRE AGREEMENT; AMENDMENT. This instrument contains the entire
agreement of the parties with respect to the subject matter hereof and
supersedes all prior agreements, promises, covenants, arrangements,
communications, representations and warranties between them, whether written or
oral, with respect to the subject matter hereof. No provisions of this
Agreement may be modified, waived or discharged unless such modification, waiver
or discharge is agreed to in writing signed by Executive and such officer of the
Company specifically designated by the Board.
16. GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the laws of the State of Delaware.
17. HEADINGS. The headings in this Agreement are for convenience
only and shall not be used to interpret or construe its provisions.
18. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
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VENTAS, INC.
By:
Title:
----------------------------
Executive
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ANNEX A
W. Bruce Lunsford $350,000
Thomas T. Ladt $335,000
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Exhibit 10.3
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is made as of the 21st day of September,
1998 (the "Effective Date"), by and between Ventas, Inc., a Delaware corporation
(the "Company"), and STEVEN T. DOWNEY (the "Executive").
W I T N E S S E T H:
WHEREAS, the Executive is employed by the Company and the parties
hereto desire to provide for Executive's continued employment by the Company;
and
WHEREAS, the Board of Directors of the Company (the "Board") have
determined that it is in the best interests of the Company to enter into this
Agreement.
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements contained herein, and intending to be legally bound
hereby, the Company and Executive agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ Executive and
Executive hereby agrees to be employed by the Company on the terms and
conditions herein set forth. The initial term of this Agreement shall be for a
one-year period commencing on the Effective Date. The Term shall be
automatically extended by one additional day for each day beyond the Effective
Date that the Executive remains employed by the Company until such time as the
Company elects to cease such extension by giving written notice of such election
to the Executive. In such event, the Agreement shall terminate on the first
anniversary of the effective date of such election notice.
2. DUTIES. Executive is engaged by the Company in an executive
capacity.
3. EXTENT OF SERVICES. Executive, subject to the direction and
control of the Board, shall have the power and authority commensurate with his
executive status and necessary to perform his duties hereunder. During the
term, Executive shall devote his entire working time, attention, labor, skill
and energies to the business of the Company, and shall not, without the consent
of the Company, be actively engaged in any other business activity, whether or
not such business activity is pursued for gain, profit or other pecuniary
advantage.
4. COMPENSATION. As compensation for services hereunder rendered,
Executive shall receive during the Term:
(a) A base salary ("Base Salary") of not less than $200,000 per year
payable in equal installments in accordance with the Company's normal
payroll procedures. Executive may receive increases in his Base Salary
from time to time, as approved by the Board.
(b) In addition to Base Salary, Executive may be eligible to receive
such other incentive compensation as the Board may approve from time to
time.
5. BENEFITS.
<PAGE>
(a) Executive shall be entitled to participate in any and all
Executive pension benefit, welfare benefit (including, without limitation,
medical, dental, disability and group life insurance coverages) and fringe
benefit plans from time to time in effect for Executives of the Company and
its affiliates.
(b) Executive shall be entitled to participate in such bonus, stock
option, or other incentive compensation plans of the Company and its
affiliates in effect from time to time for executives of the Company.
(c) Executive shall be entitled to four weeks of paid vacation each
year. The Executive shall schedule the timing of such vacation in a
reasonable manner. The Executive may also be entitled to such other leave,
with or without compensation, as shall be mutually agreed by the Company
and Executive.
(d) Executive may incur reasonable expenses for promoting the
Company's business, including expenses for entertainment, travel and
similar items. The Company shall reimburse Executive for all such
reasonable expenses in accordance with the Company's reimbursement policies
and procedures.
6. TERMINATION OF EMPLOYMENT.
(a) DEATH OR DISABILITY. Executive's employment shall terminate
automatically upon Executive's death during the Term. If the Company
determines in good faith that the Disability of Executive has occurred
during the Term (pursuant to the definition of Disability set forth below),
it may give to Executive written notice of its intention to terminate
Executive's employment. In such event, Executive's employment with the
Company shall terminate effective on the 30th day after receipt of such
notice by Executive (the "Disability Effective Date"), provided that,
within the 30 days after such receipt, Executive shall not have returned to
full-time performance of Executive's duties. For purposes of this
Agreement, "Disability" shall mean Executive's absence from his full-time
duties hereunder for a period of 90 days.
(b) CAUSE. The Company may terminate Executive's employment during
the Term for Cause. For purposes of this Agreement, "Cause" shall mean the
Executive's (i) conviction of or plea of nolo contendere to a crime
involving moral turpitude; or (ii) willful and material breach by Executive
of his duties and responsibilities, which is committed in bad faith or
without reasonable belief that such breaching conduct is in the best
interests of the Company and its affiliates, but with respect to (ii) only
if the Board adopts a resolution by a vote of at least 75% of its members
so finding after giving the Executive and his attorney an opportunity to be
heard by the Board. Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board or based upon advice of
counsel for the Company shall be conclusively presumed to be done, or
omitted to be done, by Executive in good faith and in the best interests of
the Company.
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(c) GOOD REASON. Executive's employment may be terminated by Executive
for Good Reason. "Good Reason" shall exist upon the occurrence, without
Executive's express written consent, of any of the following events:
(i) the Company shall assign to Executive duties of a
substantially nonexecutive or nonmanagerial nature;
(ii) an adverse change in Executive's status or position as an
executive officer of the Company, including, without limitation, an
adverse change in Executive's status or position as a result of a
diminution in Executive's duties and responsibilities (other than any
such change directly attributable to the fact that the Company is no
longer publicly owned);
(iii) the Company shall (A) materially reduce the Base Salary or
bonus opportunity of Executive, or (B) materially reduce his benefits
and perquisites (other than pursuant to a uniform reduction applicable
to all similarly situated executives of the Company);
(iv) the Company shall require Executive to relocate Executive's
principal business office more than 30 miles from its location on the
Effective Date; or
(v) the failure of the Company to obtain the assumption of this
Agreement as contemplated by Section 11(c).
For purposes of this Agreement, "Good Reason" shall not exist until after
Executive has given the Company notice of the applicable event within 90
days of such event and which is not remedied within 30 days after receipt
of written notice from Executive specifically delineating such claimed
event and setting forth Executive's intention to terminate employment if
not remedied; provided that if the specified event cannot reasonably be
remedied within such 30-day period and the Company commences reasonable
steps within such 30-day period to remedy such event and diligently
continues such steps thereafter until a remedy is effected, such event
shall not constitute "Good Reason" provided that such event is remedied
within 60 days after receipt of such written notice.
(d) NOTICE OF TERMINATION. Any termination by the Company for Cause,
or by Executive for Good Reason, shall be communicated by Notice of
Termination given in accordance with this Agreement. For purposes of this
Agreement, a "Notice of Termination" means a written notice which (i)
indicates the specific termination provision in this Agreement relied upon,
(ii) sets forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the
provision so indicated and (iii) specifies the intended termination date
(which date, in the case of a termination for Good Reason, shall be not
more than thirty days after the giving of such notice). The failure by
Executive or the Company to set forth in the Notice of Termination any fact
or circumstance which contributes to a showing of Good Reason or Cause
shall not waive any right of Executive or the Company, respectively,
hereunder or preclude Executive or the Company, respectively, from
asserting such fact
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<PAGE>
or circumstance in enforcing Executive's or the Company's rights hereunder.
(e) DATE OF TERMINATION. "Date of Termination" means (i) if
Executive's employment is terminated by the Company for Cause, or by
Executive for Good Reason, the later of the date specified in the Notice of
Termination or the date that is one day after the last day of any
applicable cure period, (ii) if Executive's employment is terminated by the
Company other than for Cause or Disability, or Executive resigns without
Good Reason, the Date of Termination shall be the date on which the Company
or Executive notified Executive or the Company, respectively, of such
termination, and (iii) if Executive's employment is terminated by reason of
death or Disability, the Date of Termination shall be the date of death of
Executive or the Disability Effective Date, as the case may be.
7. OBLIGATIONS OF THE COMPANY UPON TERMINATION. Following any
termination of Executive's employment hereunder, the Company shall pay Executive
his Base Salary through the Date of Termination and any amounts owed to
Executive pursuant to the terms and conditions of the Executive benefit plans
and programs of the Company at the time such payments are due. In addition,
subject to Executive's execution of a general release of claims in form
satisfactory to the Company, Executive shall be entitled to the following
additional payments:
(a) DEATH OR DISABILITY. If, during the Term, Executive's employment
shall terminate by reason of Executive's death or Disability, the Company
shall pay to Executive (or his designated beneficiary or estate, as the
case may be) the prorated portion of any Target Bonus (as defined below)
Executive would have received for the year of termination of employment.
Such amount shall be paid within 30 days of the date when such amounts
would otherwise have been payable to the Executive if Executive's
employment had not terminated.
(b) GOOD REASON; OTHER THAN FOR CAUSE. If, during the Term, the
Company shall terminate Executive's employment other than for Cause (but
not for Disability), or the Executive shall terminate his employment for
Good Reason:
(1) Within fourteen (14) days of Executive's Date of Termination,
the Company shall pay to Executive (i) the prorated portion of the
Target Bonus for Executive for the year in which the Date of
Termination occurs, plus (ii) an amount equal to the Executive's Base
Salary and Target Bonus as of the Date of Termination.
For purposes of this Agreement: "Target Bonus" shall mean the
full amount of bonuses and/or performance compensation (other than
Base Salary and awards under the Company's 1997 Incentive Compensation
Plan) that would be payable to the Executive, assuming all performance
criteria on which such bonus and/or performance compensation are based
were deemed to be satisfied, in respect of services for the calendar
year in which the date in question occurs.
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(2) For a period of one year following the Date of Termination,
the Executive shall be treated as if he or she had continued to be an
Executive for all purposes under the Company's Health Insurance Plan
and Dental Insurance Plan; or if the Company has not yet established
its own Health Insurance Plan and/or Dental Plan or the Executive is
prohibited from participating in such plan, the Company shall, at its
sole cost and expense, provide health and dental insurance coverage
for Executive which is equivalent to the coverage provided to
Executive as of the Date of Termination. Following this continuation
period, the Executive shall be entitled to receive continuation
coverage under Part 6 of Title I or ERISA ("COBRA Benefits") treating
the end of this period as a termination of the Executive's employment
if allowed by law.
(3) For a period of one year following the Date of Termination,
Company shall maintain in force, at its expense, the Executive's life
insurance being provided by the Company as of the Date of Termination.
(4) For a period of one year following the Executive's Date of
Termination, the Company shall provide short-term and long-term
disability insurance benefits to Executive equivalent to the coverage
that the Executive would have had he remained employed under the
disability insurance plans applicable to Executive on the Date of
Termination. Should Executive become disabled during such period,
Executive shall be entitled to receive such benefits, and for such
duration, as the applicable plan provides.
(5) To the extent not already vested pursuant to the terms of
such plan, the Executive's interests under the Retirement Savings Plan
and any Retirement Savings Plan of the Company shall be automatically
fully (i.e., 100%) vested, without regard to otherwise applicable
percentages for the vesting of employer matching contributions based
upon the Executive's years of service with the Company.
(6) The Company shall adopt such amendments to its Executive
benefit plans, if any, as are necessary to effectuate the provisions
of this Agreement.
(7) Executive shall be credited with an additional one year of
vesting for purposes of all restricted stock awards and Executive will
have an additional one year in which to exercise all outstanding stock
option awards.
(c) CAUSE; OTHER THAN FOR GOOD REASON. If Executive's employment
shall be terminated for Cause or Executive terminates employment without
Good Reason (and other than due to such Executive's death) during the Term,
this Agreement shall terminate without further additional obligations to
Executive under this Agreement.
(d) DEATH AFTER TERMINATION. In the event of the death of Executive
during the period Executive is receiving payments pursuant to this
Agreement, Executive's designated beneficiary shall be entitled to receive
the balance of the payments; or in the
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event of no designated beneficiary, the remaining payments shall be made to
Executive's estate.
8. DISPUTES. Any dispute or controversy arising under, out of, or in
connection with this Agreement shall, at the election and upon written demand of
either party, be finally determined and settled by binding arbitration in the
City of Louisville, Kentucky, in accordance with the Labor Arbitration rules and
procedures of the American Arbitration Association, and judgment upon the award
may be entered in any court having jurisdiction thereof. The Company shall pay
all costs of the arbitration and all reasonable attorneys' and accountants' fees
of the Executive in connection therewith, including any litigation to enforce
any arbitration award.
9. SUCCESSORS.
(a) This Agreement is personal to Executive and without the prior
written consent of the Company shall not be assignable by Executive
otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(c) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, or any
business of the Company for which Executive's services are principally
performed, to assume expressly and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company as herein before defined and
any successor to its business and/or assets as aforesaid which assumes and
agrees to perform this Agreement by operation of law, or otherwise.
10. OTHER SEVERANCE BENEFITS. Executive hereby agrees that in
consideration for the payments to be received under this Agreement, Executive
waives any and all rights to any payments or benefits under any plans, programs,
contracts or arrangements of the Company or their respective affiliates that
provide for severance payments or benefits upon a termination of employment,
other than the Change in Control Severance Agreement between the Company and
Executive (the "Severance Agreement"); provided that any payments payable to
Executive hereunder shall be offset by any payments payable under the Severance
Agreement.
11. WITHHOLDING. All payments to be made to Executive hereunder will
be subject to all applicable required withholding of taxes.
12. NO MITIGATION. Executive shall have no duty to mitigate his
damages by seeking other employment and, should Executive actually receive
compensation from any such other employment, the payments required hereunder
shall not be reduced or offset by any such compensation. Further, the Company's
obligations to make any payments hereunder shall not be
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subject to or affected by any setoff, counterclaims or defenses which the
Company may have against Executive or others.
13. NOTICES. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been duly given when
delivered or sent by telephone facsimile transmission, personal or overnight
couriers, or registered mail with confirmation of receipt, addressed as follows:
If to Executive:
Steven T. Downey
--------------------------
Louisville, KY
----
If to Company:
Ventas, Inc.
400 West Market Street, Suite 3300
Louisville, KY 40202
Attn: President
14. WAIVER OF BREACH AND SEVERABILITY. The waiver by either party of
a breach of any provision of this Agreement by the other party shall not operate
or be construed as a waiver of any subsequent breach by either party. In the
event any provision of this Agreement is found to be invalid or unenforceable,
it may be severed from the Agreement and the remaining provisions of the
Agreement shall continue to be binding and effective.
15. ENTIRE AGREEMENT; AMENDMENT. This instrument contains the entire
agreement of the parties with respect to the subject matter hereof and
supersedes all prior agreements, promises, covenants, arrangements,
communications, representations and warranties between them, whether written or
oral, with respect to the subject matter hereof. No provisions of this
Agreement may be modified, waived or discharged unless such modification, waiver
or discharge is agreed to in writing signed by Executive and such officer of the
Company specifically designated by the Board.
16. GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the laws of the State of Delaware.
17. HEADINGS. The headings in this Agreement are for convenience
only and shall not be used to interpret or construe its provisions.
18. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
7
<PAGE>
VENTAS, INC.
By: /s/ Thomas T. Ladt
Thomas T. Ladt
President and Chief Operating Officer
/s/ Steven T. Downey
Steven T. Downey
8
<PAGE>
Exhibit 10.4
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is made as of the 31st day of July, 1998
(the "Effective Date"), by and between Ventas, Inc., a Delaware corporation (the
"Company"), and T. RICHARD RINEY (the "Executive").
W I T N E S S E T H:
WHEREAS, the Executive is employed by the Company and the parties
hereto desire to provide for Executive's continued employment by the Company;
and
WHEREAS, the Board of Directors of the Company (the "Board") have
determined that it is in the best interests of the Company to enter into this
Agreement.
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements contained herein, and intending to be legally bound
hereby, the Company and Executive agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ Executive and
Executive hereby agrees to be employed by the Company on the terms and
conditions herein set forth. The initial term of this Agreement shall be for a
one-year period commencing on the Effective Date. The Term shall be
automatically extended by one additional day for each day beyond the Effective
Date that the Executive remains employed by the Company until such time as the
Company elects to cease such extension by giving written notice of such election
to the Executive. In such event, the Agreement shall terminate on the first
anniversary of the effective date of such election notice.
2. DUTIES. Executive is engaged by the Company in an executive
capacity.
3. EXTENT OF SERVICES. Executive, subject to the direction and
control of the Board, shall have the power and authority commensurate with his
executive status and necessary to perform his duties hereunder. During the
term, Executive shall devote his entire working time, attention, labor, skill
and energies to the business of the Company, and shall not, without the consent
of the Company, be actively engaged in any other business activity, whether or
not such business activity is pursued for gain, profit or other pecuniary
advantage.
4. COMPENSATION. As compensation for services hereunder rendered,
Executive shall receive during the Term:
(a) A base salary ("Base Salary") of not less than $137,000 per year
payable in equal installments in accordance with the Company's normal
payroll procedures. Executive may receive increases in his Base Salary
from time to time, as approved by the Board.
(b) In addition to Base Salary, Executive may be eligible to receive
such other bonuses or incentive compensation as the Board may approve from
time to time.
5. BENEFITS.
(a) Executive shall be entitled to participate in any and all
Executive pension benefit, welfare benefit (including, without limitation,
medical, dental, disability and group life insurance coverages) and fringe
benefit plans from time to time in effect for
<PAGE>
Executives of the Company and its affiliates.
(b) Executive shall be entitled to participate in such bonus, stock
option, or other incentive compensation plans of the Company and its
affiliates in effect from time to time for executives of the Company.
(c) Executive shall be entitled to four weeks of paid vacation each
year. The Executive shall schedule the timing of such vacation in a
reasonable manner. The Executive may also be entitled to such other leave,
with or without compensation, as shall be mutually agreed by the Company
and Executive.
(d) Executive may incur reasonable expenses for promoting the
Company's business, including expenses for entertainment, travel and
similar items. The Company shall reimburse Executive for all such
reasonable expenses in accordance with the Company's reimbursement policies
and procedures.
6. TERMINATION OF EMPLOYMENT.
(a) DEATH OR DISABILITY. Executive's employment shall terminate
automatically upon Executive's death during the Term. If the Company
determines in good faith that the Disability of Executive has occurred
during the Term (pursuant to the definition of Disability set forth below),
it may give to Executive written notice of its intention to terminate
Executive's employment. In such event, Executive's employment with the
Company shall terminate effective on the 30th day after receipt of such
notice by Executive (the "Disability Effective Date"), provided that,
within the 30 days after such receipt, Executive shall not have returned to
full-time performance of Executive's duties. For purposes of this
Agreement, "Disability" shall mean Executive's absence from his full-time
duties hereunder for a period of 90 days.
(b) CAUSE. The Company may terminate Executive's employment during
the Term for Cause. For purposes of this Agreement, "Cause" shall mean the
Executive's (i) conviction of or plea of nolo contendere to a crime
involving moral turpitude; or (ii) willful and material breach by Executive
of his duties and responsibilities, which is committed in bad faith or
without reasonable belief that such breaching conduct is in the best
interests of the Company and its affiliates, but with respect to (ii) only
if the Board adopts a resolution by a vote of at least 75% of its members
so finding after giving the Executive and his attorney an opportunity to be
heard by the Board. Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board or based upon advice of
counsel for the Company shall be conclusively presumed to be done, or
omitted to be done, by Executive in good faith and in the best interests of
the Company.
(c) GOOD REASON. Executive's employment may be terminated by Executive
for Good Reason. "Good Reason" shall exist upon the occurrence, without
Executive's express written consent, of any of the following events:
(i) the Company shall assign to Executive duties of a
substantially nonexecutive or nonmanagerial nature;
2
<PAGE>
(ii) an adverse change in Executive's status or position as an
executive officer of the Company, including, without limitation, an
adverse change in Executive's status or position as a result of a
diminution in Executive's duties and responsibilities (other than any
such change directly attributable to the fact that the Company is no
longer publicly owned);
(iii) the Company shall (A) materially reduce the Base Salary or
bonus opportunity of Executive, or (B) materially reduce his benefits
and perquisites (other than pursuant to a uniform reduction applicable
to all similarly situated executives of the Company);
(iv) the Company shall require Executive to relocate Executive's
principal business office more than 30 miles from its location on the
Effective Date; or
(v) the failure of the Company to obtain the assumption of this
Agreement as contemplated by Section 11(c).
For purposes of this Agreement, "Good Reason" shall not exist until after
Executive has given the Company notice of the applicable event within 90
days of such event and which is not remedied within 30 days after receipt
of written notice from Executive specifically delineating such claimed
event and setting forth Executive's intention to terminate employment if
not remedied; provided that if the specified event cannot reasonably be
remedied within such 30-day period and the Company commences reasonable
steps within such 30-day period to remedy such event and diligently
continues such steps thereafter until a remedy is effected, such event
shall not constitute "Good Reason" provided that such event is remedied
within 60 days after receipt of such written notice.
(d) NOTICE OF TERMINATION. Any termination by the Company for Cause,
or by Executive for Good Reason, shall be communicated by Notice of
Termination given in accordance with this Agreement. For purposes of this
Agreement, a "Notice of Termination" means a written notice which (i)
indicates the specific termination provision in this Agreement relied upon,
(ii) sets forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the
provision so indicated and (iii) specifies the intended termination date
(which date, in the case of a termination for Good Reason, shall be not
more than thirty days after the giving of such notice). The failure by
Executive or the Company to set forth in the Notice of Termination any fact
or circumstance which contributes to a showing of Good Reason or Cause
shall not waive any right of Executive or the Company, respectively,
hereunder or preclude Executive or the Company, respectively, from
asserting such fact or circumstance in enforcing Executive's or the
Company's rights hereunder.
(e) DATE OF TERMINATION. "Date of Termination" means (i) if
Executive's employment is terminated by the Company for Cause, or by
Executive for Good Reason, the later of the date specified in the Notice of
Termination or the date that is one day after the last day of any
applicable cure period, (ii) if Executive's employment is terminated by the
Company other than for Cause or Disability, or Executive resigns without
Good Reason, the Date of Termination shall be the date on which the Company
or Executive notified Executive or the Company, respectively, of such
termination, and (iii) if Executive's employment is terminated by reason of
death or Disability, the Date of
3
<PAGE>
Termination shall be the date of death of Executive or the Disability
Effective Date, as the case may be.
7. OBLIGATIONS OF THE COMPANY UPON TERMINATION. Following any
termination of Executive's employment hereunder, the Company shall pay Executive
his Base Salary through the Date of Termination and any amounts owed to
Executive pursuant to the terms and conditions of the Executive benefit plans
and programs of the Company at the time such payments are due. In addition,
subject to Executive's execution of a general release of claims in form
satisfactory to the Company, Executive shall be entitled to the following
additional payments:
(a) DEATH OR DISABILITY. If, during the Term, Executive's employment
shall terminate by reason of Executive's death or Disability, the Company
shall pay to Executive (or his designated beneficiary or estate, as the
case may be) the prorated portion of any Target Bonus (as defined below)
Executive would have received for the year of termination of employment.
Such amount shall be paid within 30 days of the date when such amounts
would otherwise have been payable to the Executive if Executive's
employment had not terminated.
(b) GOOD REASON; OTHER THAN FOR CAUSE. If, during the Term, the
Company shall terminate Executive's employment other than for Cause (but
not for Disability), or the Executive shall terminate his employment for
Good Reason:
(1) Within fourteen (14) days of Executive's Date of Termination,
the Company shall pay to Executive (i) the prorated portion of the
Target Bonus for Executive for the year in which the Date of
Termination occurs, plus (ii) an amount equal to the Executive's Base
Salary and Target Bonus as of the Date of Termination.
For purposes of this Agreement: "Target Bonus" shall mean the
full amount of bonuses and/or performance compensation (other than
Base Salary and awards under the Company's 1997 Incentive Compensation
Plan) that would be payable to the Executive, assuming all performance
criteria on which such bonus and/or performance compensation are based
were deemed to be satisfied, in respect of services for the calendar
year in which the date in question occurs.
(2) For a period of one year following the Date of Termination,
the Executive shall be treated as if he or she had continued to be an
Executive for all purposes under the Company's Health Insurance Plan
and Dental Insurance Plan; or if the Company has not yet established
its own Health Insurance Plan and/or Dental Plan or the Executive is
prohibited from participating in such plan, the Company shall, at its
sole cost and expense, provide health and dental insurance coverage
for Executive which is equivalent to the coverage provided to
Executive as of the Date of Termination. Following this continuation
period, the Executive shall be entitled to receive continuation
coverage under Part 6 of Title I or ERISA ("COBRA Benefits") treating
the end of this period as a termination of the Executive's employment
if allowed by law.
(3) For a period of one year following the Date of Termination,
Company
4
<PAGE>
shall maintain in force, at its expense, the Executive's life
insurance being provided by the Company as of the Date of Termination.
(4) For a period of one year following the Executive's Date of
Termination, the Company shall provide short-term and long-term
disability insurance benefits to Executive equivalent to the coverage
that the Executive would have had he remained employed under the
disability insurance plans applicable to Executive on the Date of
Termination. Should Executive become disabled during such period,
Executive shall be entitled to receive such benefits, and for such
duration, as the applicable plan provides.
(5) To the extent not already vested pursuant to the terms of
such plan, the Executive's interests under the Vencor, Inc. Retirement
Savings Plan and any Retirement Savings Plan of the Company shall be
automatically fully (i.e., 100%) vested, without regard to otherwise
applicable percentages for the vesting of employer matching
contributions based upon the Executive's years of service with the
Company.
(6) The Company shall adopt such amendments to its Executive
benefit plans, if any, as are necessary to effectuate the provisions
of this Agreement.
(7) Executive shall be credited with an additional one year of
vesting for purposes of all restricted stock awards and Executive will
have an additional one year in which to exercise all outstanding stock
option awards.
(c) CAUSE; OTHER THAN FOR GOOD REASON. If Executive's employment
shall be terminated for Cause or Executive terminates employment without
Good Reason (and other than due to such Executive's death) during the Term,
this Agreement shall terminate without further additional obligations to
Executive under this Agreement.
(d) DEATH AFTER TERMINATION. In the event of the death of Executive
during the period Executive is receiving payments pursuant to this
Agreement, Executive's designated beneficiary shall be entitled to receive
the balance of the payments; or in the event of no designated beneficiary,
the remaining payments shall be made to Executive's estate.
8. DISPUTES. Any dispute or controversy arising under, out of, or in
connection with this Agreement shall, at the election and upon written demand of
either party, be finally determined and settled by binding arbitration in the
City of Louisville, Kentucky, in accordance with the Labor Arbitration rules and
procedures of the American Arbitration Association, and judgment upon the award
may be entered in any court having jurisdiction thereof. The Company shall pay
all costs of the arbitration and all reasonable attorneys' and accountants' fees
of the Executive in connection therewith, including any litigation to enforce
any arbitration award.
9. SUCCESSORS.
(a) This Agreement is personal to Executive and without the prior
written consent of the Company shall not be assignable by Executive
otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable
5
<PAGE>
by Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(c) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, or any
business of the Company for which Executive's services are principally
performed, to assume expressly and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company as herein before defined and
any successor to its business and/or assets as aforesaid which assumes and
agrees to perform this Agreement by operation of law, or otherwise.
10. OTHER SEVERANCE BENEFITS. Executive hereby agrees that in
consideration for the payments to be received under this Agreement, Executive
waives any and all rights to any payments or benefits under any plans, programs,
contracts or arrangements of the Company or their respective affiliates that
provide for severance payments or benefits upon a termination of employment,
other than the Change in Control Severance Agreement between the Company and
Executive (the "Severance Agreement"); provided that any payments payable to
Executive hereunder shall be offset by any payments payable under the Severance
Agreement.
11. WITHHOLDING. All payments to be made to Executive hereunder will
be subject to all applicable required withholding of taxes.
12. NO MITIGATION. Executive shall have no duty to mitigate his
damages by seeking other employment and, should Executive actually receive
compensation from any such other employment, the payments required hereunder
shall not be reduced or offset by any such compensation. Further, the Company's
obligations to make any payments hereunder shall not be subject to or affected
by any setoff, counterclaims or defenses which the Company may have against
Executive or others.
13. NOTICES. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been duly given when
delivered or sent by telephone facsimile transmission, personal or overnight
couriers, or registered mail with confirmation of receipt, addressed as follows:
If to Executive:
T. Richard Riney
If to Company:
Ventas, Inc.
400 West Market Street, Suite 3300
Louisville, KY 40202
Attn: President
6
<PAGE>
14. WAIVER OF BREACH AND SEVERABILITY. The waiver by either party of
a breach of any provision of this Agreement by the other party shall not operate
or be construed as a waiver of any subsequent breach by either party. In the
event any provision of this Agreement is found to be invalid or unenforceable,
it may be severed from the Agreement and the remaining provisions of the
Agreement shall continue to be binding and effective.
15. ENTIRE AGREEMENT; AMENDMENT. This instrument contains the entire
agreement of the parties with respect to the subject matter hereof and
supersedes all prior agreements, promises, covenants, arrangements,
communications, representations and warranties between them, whether written or
oral, with respect to the subject matter hereof. No provisions of this
Agreement may be modified, waived or discharged unless such modification, waiver
or discharge is agreed to in writing signed by Executive and such officer of the
Company specifically designated by the Board.
16. GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the laws of the State of Delaware.
17. HEADINGS. The headings in this Agreement are for convenience
only and shall not be used to interpret or construe its provisions.
18. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
VENTAS, INC.
By: /s/ Thomas T. Ladt
Thomas T. Ladt
President and Chief Operating Officer
/s/ T. Richard Riney
T. Richard Riney
7
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY INFORMATION EXTRACTED FROM VENTAS, INC.'S
CONDENSED CONSOLIDATED FINANCIAL STATEMENTS FOR THE FIVE MONTHS ENDED SEPTEMBER
30, 1998 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 5-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> SEP-30-1998
<CASH> 2,373
<SECURITIES> 0
<RECEIVABLES> 72
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 1,770
<PP&E> 1,192,391
<DEPRECIATION> (250,631)
<TOTAL-ASSETS> 960,003
<CURRENT-LIABILITIES> 34,552
<BONDS> 933,894
0
0
<COMMON> 18,402
<OTHER-SE> (42,574)
<TOTAL-LIABILITY-AND-EQUITY> 960,003
<SALES> 0
<TOTAL-REVENUES> 93,524
<CGS> 0
<TOTAL-COSTS> 951
<OTHER-EXPENSES> 2,557
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 38,028
<INCOME-PRETAX> 34,124
<INCOME-TAX> 12,968
<INCOME-CONTINUING> 21,156
<DISCONTINUED> 0
<EXTRAORDINARY> (8,051)
<CHANGES> 0
<NET-INCOME> 13,105
<EPS-PRIMARY> 0.19
<EPS-DILUTED> 0.19
</TABLE>
