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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 28, 2000
VENTAS, INC.
(Exact name of registrant as specified in charter)
Delaware 1-10989 61-1055020
(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification No.)
incorporation)
4360 Brownsboro Road, Suite 115, Louisville, Kentucky 40207-1642
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (502) 357-9000
Not Applicable
(Former name or former address, if changed from last report)
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Item 5. Other Events
On February 28, 2000, Ventas, Inc. (the "Company") completed the
post-closing requirements set forth in its Amended and Restated Credit,
Security, Guaranty and Pledge Agreement, dated as of January 31, 2000 (the
"Amended Credit Agreement"), by and among Ventas Realty, Limited Partnership, a
Delaware limited partnership, as borrower thereunder, each of the Company and
Ventas LP Realty, L.L.C., a Delaware limited liability company, as guarantors,
each of the Lenders therein named, Bank of America, N.A., as Administrative
Agent and Morgan Guaranty Trust Company of New York, as Documentation Agent.
Under the terms of the Amended Credit Agreement, Ventas and its subsidiaries
were required to execute and deliver to the Lenders, by no later than February
28, 2000, mortgages, deeds of trust, assignments, and other related
documentation granting liens and security interests in substantially all of
their real property assets and in other related assets. In its announcement, the
Company indicated that agreements and documents satisfying the requirements of
the Amended Credit Agreement had been so delivered. Under the terms of the
Amended Credit Agreement, certain mortgages, assignments and other related
documentation will be held in escrow pending receipt of third party consents
and/or resolutions of certain other matters.
The Company also announced that Steven T. Downey has resigned as its Chief
Financial Officer to pursue other business opportunities. President and CEO
Debra A. Cafaro will continue to be responsible for the Company's financial
reporting and audit obligations. The Company and Mr. Downey have entered into a
Separation and Release Agreement, dated February 29, 2000. The Company is
searching for a new Chief Financial Officer.
This Form 8-K includes forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended (the "Securities Act"),
and Section 21E of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). All statements regarding the Company's expected future
financial position, results of operations, cash flows, financing plans, business
strategy, expected lease income, plans and objectives of management for future
operations and statements that include words such as "anticipate," "believe,"
"plan," "would," "will," "should," "estimate," "expect," "intend," "may," and
other similar expressions are forward-looking statements. Such forward-looking
statements are inherently uncertain, and stockholders must recognize that actual
results may differ from the Company's expectations. The Company does not
undertake any duty to update such forward-looking statements.
Factors that may affect the plans or results of the Company include,
without limitation, (1) the treatment of the Company's claims in the Chapter 11
proceedings of Vencor, Inc. ("Vencor") (OTC: VCRI), the Company's principal
tenant, and the ability of Vencor to successfully reorganize under its Chapter
11 proceedings, (2) the ability of Vencor and the Company's other operators to
maintain the financial strength and liquidity necessary to satisfy their
obligations and duties under leases and other agreements with the Company and
their existing credit agreements, (3) the extent of future healthcare reform and
regulations, including cost containment measures and changes in reimbursement
policies and procedures, (4) increases in the cost of borrowing for the Company,
(5) the ability of the Company to pay, refinance, restructure and/or extend its
indebtedness as it becomes due, (6) the results of the ongoing settlement
discussions pertaining to the billing disputes and other civil claims against
the
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Company and Vencor by the U.S. Department of Justice and other litigation
affecting Ventas, (7) the ability of the Company to meet the minimum
distribution requirements to maintain REIT status, and (8) the success of the
Company in implementing its business strategy and the nature and extent of
future competition. Many of such factors are beyond the control of Ventas and
its management.
Copies of a representative Mortgage, a representative Assignment of Leases
and Rents, the Separation and Release Agreement, and the press release issued by
the Company on February 29, 2000 are included as exhibits to this filing and are
incorporated herein by reference.
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Item 7. Financial Statements and Exhibits.
(a) Financial Statements of Business Acquired.
Not applicable.
(b) Pro Forma Financial Information.
Not applicable.
(c) Exhibits.
10.1.1 Assignment of Leases and Rents, dated as of January 31, 2000,
from Ventas Realty, Limited Partnership, Assignor, to Bank of
America, N.A., as Administrative Agent, Assignee, with respect to
Facility no. 111 located at Rolling Hills Health Care Center,
36255 St. Joseph Road, New Albany, Indiana (Floyd County).
10.1.2 Mortgage, Open End Mortgage, Deed of Trust, Trust Deed, Deed to
Secure Debt, Credit Line Deed of Trust, Assignment of Leases and
Rents, Security Agreement and Financing Statement, dated as of
January 31, 2000, between Ventas Realty, Limited Partnership,
Mortgagor/Trustor/Grantor/Debtor, to Bank of America, N.A., as
Administrative Agent, Mortgagee/Beneficiary/ Grantee/Secured
Party, with respect to Facility no. 111 located at Rolling Hills
Health Care Center, 36255 St. Joseph Road, New Albany, Indiana
(Floyd County).
10.1.3 Schedule of Agreements Substantially Identical in all Material
Respects to Agreements filed as Exhibits 10.1.1 and 10.1.2 to
this filing, pursuant to Instruction 2 to Item 601 of Regulation
S-K.
10.2 Separation and Release Agreement, dated February 29, 2000,
between Ventas, Inc. and Steven T. Downey.
99.1 Press Release dated February 29, 2000.
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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 hereunto duly authorized.
Dated: March 8, 2000
VENTAS, INC.
By: /s/ T. Richard Riney
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Name: T. Richard Riney
Title: Executive Vice President
and General Counsel
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ASSIGNMENT OF LEASES AND RENTS
from
VENTAS REALTY, LIMITED PARTNERSHIP,
Assignor
to
BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT,
Assignee
Dated: As of January 31, 2000
Property:
Facility Number 111
Rolling Hills Health Care Center
36255 St. Joseph Road
New Albany, Floyd County, IN
================================================================================
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ASSIGNMENT OF LEASES AND RENTS (said Assignment, as the same may be
amended, amended and restated, supplemented or otherwise modified, renewed or
replaced from time to time, the "Assignment") dated as of January 31, 2000, from
VENTAS REALTY, LIMITED PARTNERSHIP, a Delaware Limited Partnership having its
principal office at 4360 Brownsboro Road, Suite 115, Jefferson County,
Louisville, Kentucky 40207, as assignor hereunder ("Assignor"), to BANK OF
AMERICA, N.A., a national banking association having an office at 901 Main
Street, TX1-492-66-01, Dallas County, Dallas, TX 75202, in its capacity as
Administrative Agent for the benefit of the Secured Parties ("Assignee").
Preliminary Statement
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WHEREAS, Ventas Realty, Limited Partnership, as "Borrower", is justly
indebted to the Lenders in the aggregate principal sum of up to NINE HUNDRED AND
NINETY EIGHT MILLION, THREE HUNDRED SIXTY SEVEN THOUSAND AND NINE HUNDRED
DOLLARS ($998,367,900.00), together with interest thereon and other amounts,
payable in accordance with and pursuant to (i) that certain Amended and Restated
Credit, Security, Guaranty and Pledge Agreement dated as of April 29, 1998, as
amended and restated as of January 31, 2000 among the Borrower, the Guarantors
referred to therein, the lenders from time to time party thereto (said lenders,
their respective successors and assigns, and any other persons that may
thereafter become parties thereto as lenders, being collectively referred to
herein as the "Lenders"), Bank of America, N.A., as Administrative Agent and
Issuing Bank and Morgan Guaranty Trust Company of New York, as Documentation
Agent (said Credit Agreement, as the same may be amended, amended and restated,
supplemented or otherwise modified, renewed or replaced from time to time, the
"Credit Agreement") and (ii) certain other loan documents executed and delivered
by the Borrower, any of its subsidiaries and the Guarantors pursuant to or in
connection with the Credit Agreement; and
WHEREAS, in this Assignment, any reference to "Secured Indebtedness" shall
mean the total indebtedness, obligations and liabilities to be secured by this
Assignment consisting of the sum of the following:
(i) the aggregate principal of all Loans and other advances made and to be
made by the Lenders under the Credit Agreement, the outstanding amount of
which shall not exceed NINE HUNDRED AND NINETY EIGHT MILLION, THREE HUNDRED
SIXTY SEVEN THOUSAND AND NINE HUNDRED DOLLARS ($998,367,900.00) at any
time; plus
(ii) interest on the principal amount of all Loans made and to be made by
the Lenders under the Credit Agreement, as provided in the Credit
Agreement; plus
(iii) all other amounts payable under the Credit Agreement, the Mortgage
and any other Fundamental Document which relates to the Credit Agreement,
or any of the
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security therefor, in each case as the same may be amended, amended and
restated, modified or supplemented from time to time (including advances to
protect the collateral and all costs of enforcement), or as the maturities
thereof may be extended or renewed from time to time; plus
(iv) any and all Hedging Obligations payable by Borrower to the Hedging
Banks or any amounts payable to Bank of America, N.A. or any other Lender
in connection with any bank account maintained by the Borrower or any other
Credit Party (as defined in the Credit Agreement) with Bank of America,
N.A. or any other Lender or any other banking services provided to the
Borrower or with any other Credit Party by Bank of America, N.A., Morgan
Guaranty Trust Company of New York or any other Lender with respect to, or
in any way related to, any of the Fundamental Documents; plus
(v) any other Obligations (as defined in the Credit Agreement) of the
Borrower; and
WHEREAS, the final maturity of the Secured Indebtedness is December 31,
2007 ("Maturity Date");
WHEREAS, Grantor is required to execute and deliver this Assignment
pursuant to the terms of the Credit Agreement;
WHEREAS, in furtherance of the foregoing, Assignor has executed and
delivered to Assignee a Mortgage, Open-End Mortgage, Deed of Trust, Trust Deed,
Deed to Secure Debt, Credit Line Deed of Trust, Assignment of Leases and Rents,
Security Agreement and Financing Statement, dated of even date herewith (the
"Mortgage") on inter alia, all of Assignor's right, title and interest in and to
the land more particularly described in Schedule A attached hereto and made a
part hereof (the "Land") and any and all buildings and improvements now or
hereafter located or erected on the Land (collectively, the "Improvements"). The
Land and the Improvements, together with certain other properties and rights
described in the Mortgage, are hereinafter referred to collectively as the
"Mortgaged Property"; and,
WHEREAS, the Lenders require that the Assignor execute and deliver this
absolute Assignment of Leases and Rents to provide an additional source of
repayment for and to further secure the prompt and punctual payment of the
Secured Indebtedness. Accordingly, Assignor has duly authorized the execution
and delivery of this Assignment of Leases and Rents, and all actions required by
law and all actions of Assignor required therefor have been duly taken.
NOW THEREFORE, in consideration of the foregoing and in consideration of
good and valuable consideration paid by Assignee to Assignor, the receipt and
sufficiency of which is hereby acknowledged, and in order to further secure the
prompt and punctual payment of the Secured Indebtedness and the performance of
the Assignor of the covenants and agreements contained in the Credit Agreement,
the Mortgage and the other Fundamental Documents, Assignor by these presents
does hereby unconditionally, absolutely and presently bargain, sell,
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assign and set over unto Assignee all right, title and interest of Assignor in
and to any and all existing or future leases (including without limitation,
those leases more particularly described on Schedule B attached hereto and made
a part hereof), lettings, tenancies, subleases, franchises, concessions, or any
other agreements which may now or hereafter be entered into in respect of the
Mortgaged Property, or upon or covering use or occupancy of all or any part of
the Mortgaged Property as the same may be hereafter amended, modified, restated,
extended, renewed, replaced or consolidated and any and all guaranties of any
lessee's obligations under any provisions thereof and all rights relating
thereto and under any and all extensions and renewals thereof (any such leases
or lease agreements and tenancies being hereinafter referred to individually as
a "Lease" and collectively as "Leases" and any lessee thereunder is hereinafter
referred to individually as a "Lessee" and collectively as "Lessees");
TOGETHER with the immediate and continuing right to collect and receive all
the rents, income, receipts, revenues and other benefits, issues and profits and
all cash collateral now due or which may become due or to which Assignor may now
or shall hereafter (including the period of redemption, if any) become entitled
or may demand or claim, arising or issuing from or out of the Leases or from or
out of the Premises or any part thereof, including, but not by way of
limitation: minimum rents, additional rents, escalation rents, percentage rents,
parking income, tax and insurance contributions, deficiency rents and liquidated
damages following default, the premium payable by any Lessee upon the exercise
of a cancellation privilege provided in any Lease, all income from any licenses,
franchises or any other agreements and all proceeds payable under any
condemnation awards or settlements, policies of insurance or settlements thereof
covering loss of rents resulting from untenantability caused by destruction or
damage to the Mortgaged Property or any part thereof together with any and all
rights and claims of any kind which Assignor may have against any Lessee or any
subtenants or occupants of the Mortgaged Property, additional charges,
royalties, insurance proceeds, condemnation awards and other payments, tenders
and security deposits payable to or receivable by Assignor under the Leases, all
damages or other amounts payable in the event of any expiration or termination
of the Leases pursuant to the terms thereof, by operation of law or otherwise,
any indemnification against or reimbursement for sums paid and costs and
expenses incurred by Assignor under the Leases or otherwise, and any awards in
the event of the bankruptcy of any tenant or guarantor of a Lease (all such
monies, rights and claims described in this paragraph being called "Rents").
TOGETHER with all claims, rights, powers, privileges and remedies of
Assignor, whether provided for in the Leases or arising by statute or at law or
in equity or otherwise, consequent on any failure on the part of any tenant to
perform or comply with any terms of the Leases; all rights to take all action
upon the happening of a default under the Leases as shall be permitted by the
Leases or by law, including without limitation, the commencement, conduct and
consummation of proceedings at law or in equity; and the full power and
authority, in the name of Assignor or otherwise, to enforce, collect, receive
and receipt for any and all of the foregoing and to do any and all other acts
and things whatsoever which Assignor or any landlord is or may be entitled to do
under the Leases.
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TO HAVE AND TO HOLD unto the Assignee, its successors and assigns, forever.
This Assignment is intended to be an absolute assignment from Assignor to
Assignee and not merely the passing of a security interest, Assignor reserving,
however, a license to collect, except as hereinafter provided, the Rents, as
they respectively become due, but not more than one month in advance, and to
enforce the Leases, so long as no Event of Default (as such term is defined in
the Credit Agreement) shall have occurred. Said license shall terminate and be
revoked automatically upon the occurrence of an Event of Default and all Rents
and other sums then held or thereafter received by Assignor from the ownership
and operation of the Mortgaged Property shall be held by Assignor in trust for
the benefit of Assignee and Assignor shall forthwith remit same in their
entirety to Assignee or its designee and Assignee (or a Receiver appointed
pursuant to the provisions of Paragraph 8 of this Assignment) may to the fullest
extent permitted by the Leases: (i) exercise any of Assignor's rights under the
Leases; (ii) enforce the Leases; (iii) demand, collect, sue for, attach, levy,
recover, receive, compromise and adjust, and make, execute and deliver receipts
and releases for all Rents, and for all other payments that may then be or may
thereafter become due, owing or payable with respect to the Leases; and (iv)
generally, do, execute and perform any other act, deed, matter or thing
whatsoever that ought to be done, executed and performed in and about or with
respect to the Leases, as fully as allowed or authorized by this Assignment.
Upon the occurrence of such Event of Default, Assignee shall not be required to
take any action whatsoever, including, without limitation, instituting legal
proceedings of any kind, to terminate Assignor's license to collect Rents or
enforce any of the other provisions or remedies contained in the Assignment.
Assignor hereby covenants and agrees as follows:
1. Definitions. In this Assignment, all words and terms not defined herein
shall have the respective meanings set forth in the Credit Agreement.
2. Intentionally Omitted.
3. Rights and Remedies. Assignor agrees that upon the occurrence of an
Event of Default, the license reserved herein by Assignor shall cease and
terminate, and Assignee is hereby authorized to enter and take possession of the
Mortgaged Property, or any part thereof, and to perform all acts necessary for
the operations and maintenance of the Mortgaged Property in the same manner and
to the same extent that Assignor might reasonably so act. It is the intention of
the parties that Assignee's right to collect the Rents due and owing may be
exercised without electing to exercise Assignee's right to enter, take over and
assume the management, operation and maintenance of the Mortgaged Property. In
furtherance thereof and not by way of limitation, Assignee is empowered, but
shall be under no obligation, to collect the Rents, to enforce payment thereof
and the performance of any and all other terms and provisions of the Leases, to
exercise all the rights and privileges of Assignor thereunder, including the
right to fix or modify Rents, to bring or defend any suits in connection with
the possession of the Mortgaged Property or any part thereof in its own name or
Assignor's name, to relet the Mortgaged Property
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or any part thereof and to collect the Rents under any new Lease. Assignee shall
from time to time apply the net amount of income after payment of all proper
costs and charges, including loss or damage referred to hereinafter in Paragraph
7, and reasonable attorneys' fees, costs, expenses and charges through all
appeals, to the Secured Indebtedness. The manner of the application of such net
income, the reasonableness of the costs and charges to which such net income is
applied and the item or items which shall be credited thereby shall be within
the sole and absolute discretion of Assignee. Such entry and taking possession
of the Mortgaged Property, or any part thereof, may be made by actual entry and
possession, or by written notice to Assignor, as Assignee may elect, and no
further authorization shall be required. Assignee shall only be accountable for
money actually received by it pursuant to this Assignment. Notwithstanding any
action taken by Assignee pursuant to this Paragraph 3 or otherwise in this
Assignment, neither the assignment made pursuant hereto or any such action shall
constitute Assignee as a "mortgagee in possession."
4. Termination of Assignment. This Assignment shall be void and of no
effect upon the Bank Credit Termination Date or upon the discharge and release
of the Mortgage in accordance with its terms or the requirements of the Credit
Agreement.
5. Consent to Payment of Rents. Assignor irrevocably consents that the
Lessees, upon demand and notice from Assignee of an Event of Default, shall pay
the Rents to Assignee without liability of the Lessees for the determination of
the actual existence of any such Event of Default claimed by Assignee. Assignor
hereby irrevocably authorizes and directs the Lessees, upon receipt of any
notice from Assignee of an Event of Default, to pay to the Assignee the Rents
due and to become due under the Leases. Assignor agrees that the Lessees shall
have the right to rely upon any such notices of Assignee and that the Lessees
shall pay such Rents to Assignee, without any obligation and without any right
to inquire as to whether such Event of Default actually exists, notwithstanding
any claim of Assignor to the contrary. Assignor shall have no claim against any
Lessee for any Rents paid by any Lessee to Assignee. Upon the curing of the
Event of Default, Assignee shall give written notice thereof to Lessees, and
thereafter, until further notice from Assignee, Lessees shall pay the Rents to
Assignor.
6. Right to Further Assignment. Assignee shall have the right to assign
Assignor's right, title, and interest in the Leases to any subsequent holder of
the Mortgage and to any person acquiring title to the Mortgaged Property through
foreclosure or otherwise. The receipt by Assignee of any Rents pursuant to this
Assignment after the institution of foreclosure proceedings under the Mortgage
shall not cure such default nor affect such proceedings or any sale pursuant
thereto. After Assignor shall have been barred and foreclosed of all right,
title, interest, and equity of redemption in the Mortgaged Property, no assignee
of Assignor's interest in the Leases shall be liable to account to Assignor for
the Rents thereafter accruing.
7. Indemnity. Assignor hereby agrees to indemnify and hold Assignee
harmless from and against any and all costs and expenses, liability, loss, or
damage (including, without limitation reasonable attorneys' fees, costs,
expenses and charges through all appeals but
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excluding any such costs and expenses, liability, loss or damage to the extent
incurred (x) by reason of the gross negligence or willful misconduct, as
determined by a final order or judgment of a court of competent jurisdiction, of
Assignee, or (y) in any litigation in which Assignee and Assignor are adverse to
each other, and in which the Assignor prevails on its claims and the Assignee
does not prevail on its defenses or its counterclaims interposed in such
litigation) which Assignee may incur (a) under any of the Leases, (b) by reason
of this Assignment, (c) arising from any action taken by Assignee pursuant to
this Assignment, (d) as a result of any claims or demands which may be asserted
against Assignee by reason of any alleged obligation or undertaking to be
performed or discharged by Assignee under any of the Leases or this Assignment,
or (e) the enforcement (or attempted enforcement) of this indemnity. Nothing
herein contained shall be construed to bind Assignee to the performance of any
of the terms and provisions contained in any of the Leases, or otherwise to
impose any obligation on Assignee until such time as Assignee shall have
succeeded to the interests of Assignor under the Leases through foreclosure of
the Mortgage, the acceptance of a deed in lieu of foreclosure, or otherwise.
Prior to actual entry and taking possession of the Mortgaged Property by
Assignee, this Assignment shall not operate to place responsibility for the
control, care, management, or repair of the Mortgaged Property upon Assignee or
for the carrying out of any of the terms and provisions of any Lease. Should
Assignee incur any liability by reason of actual entry and taking possession or
for any other reason or occurrence or sustain loss or damage under any Lease or
under or by reason of this Assignment or in the defense of any such claims or
demands, Assignee shall within fifteen (15) days after demand therefor from
Assignee, reimburse Assignee for the amount thereof, including interest at the
rate set forth in Section 2.9 (a)(iii) of the Credit Agreement, or the highest
rate permitted by law, whichever is lesser, together with all costs and expenses
(including without limitation reasonable attorneys' fees, costs, expenses and
charges), and may retain possession and collect the Rents and, from time to
time, apply them in or toward satisfaction of or reimbursement for said loss or
damage. The indemnity obligations of Assignor set forth in this Paragraph 7 are
in addition to and not in limitation of any indemnity obligations provided in
the Credit Agreement and shall survive (on an unsecured basis) the Bank Credit
Termination Date, the termination of the Credit Agreement, the discharge and
release of the Mortgage, and/or the termination of this Assignment.
8. Receiver. Without limiting any other provision of this Assignment, upon
the occurrence of an Event of Default, Assignee shall be entitled to the
appointment of a receiver, supervisor, trustee, liquidator, conservator or other
custodian (a "Receiver") of the Mortgaged Property, without notice to the
Assignor, to the fullest extent permitted by law, as a matter of right and
without regard to or the necessity to disprove the adequacy of the security for
the Secured Indebtedness or the solvency of the Assignor or any other obligor,
and the Assignor hereby, to the fullest extent permitted by Applicable Law,
irrevocably waives such necessity and consents to such appointment, without
notice, said appointee to be vested with the fullest powers permitted under
Applicable Law. Any funds received by Assignee or such Receiver hereunder, after
payment of all proper costs and charges, shall be applied to the Secured
Indebtedness in accordance with the provisions of the Credit Agreement and the
Mortgage. Assignee shall be accountable to Assignor only for monies actually
received by Assignee or such Receiver pursuant
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to this Assignment. The collection of said funds and the application thereof as
aforesaid shall not cure or waive any default or waive, modify or affect any
notice of default hereunder or under the Mortgage or invalidate any act done
pursuant to such notice. Nothing contained herein shall operate or be construed
to: (a) obligate Assignee, or a Receiver to perform any of the terms, covenants
or conditions contained in the Leases or otherwise to impose any obligation upon
Assignee or such Receiver with respect to the Leases; or (b) place upon Assignee
or such Receiver any responsibility for the operation, control, care, management
or repair of the Mortgaged Property.
9. Lease Enforcement. Assignor at its expense will enforce all material
provisions of the Leases in accordance with their terms. Neither this Assignment
nor any action or inaction on the part of Assignee shall release (i) any Lessee,
(ii) any guarantor of any Lease or (iii) Assignor from any of their respective
obligations under the Leases or constitute an assumption of any such obligation
on the part of Assignee. No action or failure to act on the part of Assignor
shall adversely affect or limit the rights of Assignee under this Assignment or,
through this Assignment, under the Leases.
10. Further Assurances. Assignor will, from time to time, upon request of
Assignee or a Receiver, execute all instruments and further assurances and all
supplemental instruments and take all such action as Assignee from time to time
may reasonably request in order to perfect, preserve and protect the interests
intended to be assigned to Assignee hereby.
11. Assignor's Lease Covenants. Assignor and Assignee agree that the Leases
shall remain in full force and effect irrespective of any merger of the
interests of the lessor and any Lessee thereunder. All rights, powers and
privileges of Assignee herein set forth are coupled with an interest and are
irrevocable. If the Leases shall be amended as permitted by the terms of the
Credit Agreement, they shall continue to be subject to the provisions hereof
without the necessity of any further act by any of the parties hereto.
12. Notices. Notices and other communications provided for herein shall be
in writing and shall be delivered or mailed (or if by facsimile communications
equipment, delivered by such equipment) addressed, (a) if to Assignee, to it at
901 Main Street, 66th floor, TX1-492-66-01, Dallas, TX 75202, Attn: Jay Wampler,
Facsimile No.: 214-209-3533 with a copy to Bank of America, N.A., 101 North
Tryon, Charlotte, NC 28255, NC1-001-1504, Attn: Credit Services, Facsimile No.:
704-409-0023, with a courtesy copy to Morgan, Lewis & Bockius LLP, 101 Park
Avenue, New York, NY 10178, Attn: Margot B. Schonholtz, Esq., Facsimile No.:
212-309-6273, or (b) if to Assignor, to it at 4360 Brownsboro Road, Suite 115,
Louisville, Kentucky 40207-1642, Attn: General Counsel, Facsimile No.:
502-357-9001, with a courtesy copy to Maurice M. Lefkort, Esq., Willkie Farr &
Gallagher, 787 Seventh Avenue, New York, NY 10019-6099, Facsimile No.:
212-728-8111, or (c) such other address as such party may from time to time
designate by giving written notice to the other parties hereunder. Any failure
of any Person giving notice pursuant to this Section to provide a courtesy copy
to a party as provided herein shall not affect the validity of such notice. All
notices and other communications given to
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any party hereto in accordance with the provisions of this Assignment shall be
deemed to have been given (x) on the date of receipt, when sent by registered or
certified mail, postage prepaid, return receipt requested, if by mail, (y) when
delivered, if delivered by hand or overnight courier service or (z) when receipt
is acknowledged, if by facsimile communications equipment, in each case
addressed to such party as provided in this Section or in accordance with the
latest unrevoked written direction from such party. No notice to or demand on
Assignor shall entitle Assignor to any other or further notice or demand in the
same, similar or other circumstances.
13. Governing Law; Severability. THIS ASSIGNMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE IN WHICH THE REAL
PROPERTY IS LOCATED. WHENEVER POSSIBLE, EACH PROVISION OF THIS ASSIGNMENT SHALL
BE INTERPRETED IN SUCH MANNER AS TO BE EFFECTIVE AND VALID UNDER APPLICABLE LAW,
BUT IF ANY PROVISION OF THIS ASSIGNMENT SHALL BE PROHIBITED BY OR INVALID UNDER
APPLICABLE LAW, SUCH PROVISION SHALL BE INEFFECTIVE TO THE EXTENT OF SUCH
PROHIBITION OR INVALIDITY, WITHOUT INVALIDATING THE REMAINING PROVISIONS OF THIS
ASSIGNMENT.
14. Recording. Assignor shall pay all recording and filing fees in respect
to this Assignment and any agreements, instruments and documents made pursuant
to the terms hereof or ancillary hereto, as well as any and all taxes and fees
which may be due and payable on the recording of this Assignment and any taxes
and fees hereafter imposed on this Assignment. Should Assignor fail to pay the
same, all such recording and filing fees and taxes may be paid by Assignee on
behalf of Assignor and the amount thereof, together with interest at the rate
set forth in Section 2.9 (a)(iii) of the Credit Agreement, shall be payable by
Assignor to Assignee within fifteen (15) days after demand therefor from
Assignee, or at the option of Assignee, Assignee may reimburse itself therefor
out of the Rents collected by Assignee. Assignor agrees that any such charge
shall not be deemed to be additional interest or a penalty, but shall be deemed
to be liquidated damages because of the difficulty in computing the actual
amount of damages in advance; provided, however, that any sums collected by
Assignee as liquidated damages, as aforesaid, which are held to be interest in
excess of the maximum rate permitted by law, shall be deemed a payment in
reduction of the principal sum then outstanding under the Credit Agreement and
shall be so applied.
15. Rights Cumulative; No Waiver. The rights and remedies herein expressed
to be vested in or conferred upon the Assignee shall be cumulative and shall be
in addition to and not in substitution for or in derogation of the rights and
remedies set forth in the Credit Agreement, the Mortgage and other Fundamental
Documents or conferred by any Applicable Law. The failure, at any one or more
times, of the Assignee to exercise any right under any covenant or stipulation
herein contained shall not in any way affect this Assignment nor the rights of
the Assignee hereunder, nor operate as a release from any personal liability of
the Assignor under the Credit Agreement and/or the other Fundamental Documents,
nor under any covenant or stipulation therein contained.
9
<PAGE>
16. Miscellaneous. The headings of the sections, paragraphs and
subdivisions of this Assignment are for the convenience of reference only, are
not to be considered a part hereof and shall not limit or otherwise affect any
of the terms hereof. Whenever in this Assignment one of the parties hereto is
named or referred to, the heirs, legal representatives, successors and assigns
of such party shall be included and all covenants and agreements contained in
this Assignment by or on behalf of Assignor or by or on behalf of Assignee shall
bind and inure to the benefit of their respective heirs, legal representatives,
successors and assigns, whether so expressed or not. Whenever the singular or
plural number, masculine or feminine or neuter gender is used herein, it shall
equally include the other. No change, amendment, modification, abridgement,
cancellation or discharge hereof or of any part hereof, shall be valid unless
consented to in writing by Assignee.
17. Conflict. In case of any conflict or inconsistency between any
provision of this Assignment and the Credit Agreement, the provisions of the
Credit Agreement shall control.
[Signature Page Follows]
10
<PAGE>
IN WITNESS WHEREOF, Assignor has executed this Assignment as of the day and
year first above written.
Attest: Ventas Realty, Limited Partnership,
a Delaware Limited Partnership
/s/ John C. Thompson By: Ventas, Inc., a Delaware
- -------------------------------- corporation, General Partner
John C. Thompson, Vice President
Signed and Acknowledged in By: /s/ T. Richard Riney
the Presence of: ------------------------------
T. Richard Riney, Executive Vice-
President, General Counsel and
/s/ Dean Zucchero Secretary
- --------------------------------
Dean Zucchero Address: 4360 Brownsboro Road,
Suite 115, Jefferson County,
/s/ Camille Inocelda Louisville, Kentucky 40207-1642
- ---------------------------------
Camille Inocelda
This instrument was prepared by
and recorded counterparts should
be returned to:
Mario J. Suarez, Esq.
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, New York 10178
11
<PAGE>
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
Before me, a Notary Public in and for said County and State, personally
appeared T. Richard Riney, the Vice President of Ventas Inc., a Delaware
corporation, in its capacity, as general partner of Ventas Realty, Limited
Partnership, a Delaware limited partnership, who acknowledged execution of the
foregoing instrument for and on behalf of said corporation, and who, having been
duly sworn, stated that the representations therein contained are true.
/s/ Demetra V. Versocki
------------------------------
Notary Public
<PAGE>
Facility #111
IN
Schedule A
THE LAND
THAT PORTION OF LAND SITUATE IN LOT NUMBER 84 OF THE ILLINOIS GRANT IN FLOYD
COUNTY, INDIANA, NEW ALBANY TOWNSHIP, AND BEING DESCRIBED AS FOLLOWS:
CONSIDERING THE SOUTHEASTERLY LINE OF LOT NUMBER 84 OF THE ILLINOIS GRANT IN
FLOYD COUNTY AS BEARING NORTH 54 DEGREES 35 MINUTES 00 SECONDS EAST WITH ALL
OTHER BEARINGS HEREIN CONTAINED RELATIVE THERETO: BEGINNING AT A FOUND STONE ON
THE SOUTHEASTERLY LINE OF LOT NO. 84 OF THE ILLINOIS GRANT AT THE COMMON CORNERS
OF LOTS NUMBER 62 AND 63 OF THE ILLINOIS GRANT AS ESTABLISHED BY A LEGAL SURVEY
AS RECORDED IN SURVEY RECORD BOOK, PAGES 224 AND 225 IN THE FLOYD COUNTY,
INDIANA SURVEYOR'S OFFICE: THENCE ON AND ALONG THE SOUTHEASTERLY LINE OF LOT
NUMBER 84 AND THE NORTHWESTERLY LINE OF LOT NUMBER 63 54 DEGREES 35 MINUTES 00
SECONDS EAST 2366.30 FEET DEED AND MEASURED TO A FOUND 1 1/8" STEEL BAR ON THE
CENTERLINE OF THE ST. JOSEPH ROAD; THENCE ON AND ALONG SAID CENTERLINE NORTH 29
DEGREES 58 MINUTES 22 SECONDS WEST 957.70 FEET DEED AND MEASURED TO A SET PK
NAIL ON THE SOUTHEASTERLY LINE OF THE LAND DESCRIBED IN DEED DRAWER 11 PAGE
2618; THENCE ON AND ALONG SAID SOUTHEASTERLY LINE SOUTH 60 DEGREES 01 MINUTES 38
SECONDS WEST 30.00 FEET TO A SET REBAR ON THE SOUTHWESTERLY RIGHT OF WAY LINE
FOR ST JOSEPH ROAD BEING THE TRUE PLACE OF BEGINNING; THENCE CONTINUING ON AND
ALONG SAID SOUTHEASTERLY LINE SOUTH 60 DEGREES 01 MINUTES 38 SECONDS WEST 714.50
FEET TO A FOUND REBAR ON THE WESTERLY LINE OF SAID DEED: THENCE ON AND ALONG
SAID WESTERLY LINE NORTH 35 DEGREES 57 MINUTES
12 SECONDS WEST 538.05 FEET DEED AND MEASURED TO A FOUND REBAR ON THE NORTHERLY
LINE OF SAID DEED RECORD; THENCE ON AND ALONG SAID NORTHERLY LINE NORTH 55
DEGREES 38 MINUTES 46 SECONDS EAST 261.77 FEET TO A FOUND REBAR; THENCE
CONTINUING ON AND ALONG SAID NORTHERLY LINE NORTH 56 DEGREES 34 MINUTES 03
SECONDS EAST 510.54 FEET TO A SET REBAR ON THE SOUTHWESTERLY RIGHT-OF-WAY LINE
FOR THE ST. JOSEPH ROAD; THENCE ON AND ALONG SAID LINE SOUTH 29 DEGREES 58
MINUTES 22 SECONDS EAST 585.00 FEET TO THE PLACE OF BEGINNING.
<PAGE>
Schedule B
----------
THE LEASES
----------
Master Lease Agreement General Terms and Conditions dated as of April 30,
1998 between Ventas, Inc. (formerly known as Vencor, Inc.), First Healthcare
Corporation, Nationwide Care, Inc., Northwest, Healthcare, Inc., Hillhaven of
Central Florida, Inc., Hillhaven/Indiana Partnership, St. George Nursing Home
Limited Partnership, Vencor Hospitals East, Inc., Hahnemann Hospital, Inc.,
Vencor Hospitals Illinois, Inc., Carolwood Care Center, Windsor Woods Nursing
Home Partnership, San Marcos Nursing Home Partnership, New Pond Village
Associates, Health Haven Associates, L.P., Oak Hill Nursing Associates, L.P.,
and Ventas Realty, Limited Partnership, as lessors, and Vencor Healthcare, Inc.
and Vencor Operating, Inc., as tenant, as amended, modified, restated, extended,
supplemented, renewed or consolidated from time to time.
<PAGE>
MORTGAGE, OPEN END MORTGAGE, DEED OF TRUST, TRUST DEED, DEED TO
SECURE DEBT, CREDIT LINE DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FINANCING STATEMENT
Dated: As of January 31, 2000
VENTAS REALTY, LIMITED PARTNERSHIP,
Mortgagor/Trustor/Grantor/Debtor
-TO-
BANK OF AMERICA, N.A., as Administrative Agent,
Mortgagee/Beneficiary/Grantee/Secured Party
- --------------------------------------------------------------------------------
This instrument is a Mortgage, Open End Mortgage, Deed of Trust, Trust Deed,
Deed to Secure Debt, Credit Line Deed of Trust, Assignment of Leases and Rents,
Security Agreement and Financing Statement of both real and personal property,
including fixtures. Notwithstanding anything to the contrary herein contained,
(a) as to any property located in the States of Arizona, California, Colorado,
Idaho, Missouri, Montana, Nebraska, North Carolina, Nevada, Tennessee, Texas,
and Washington, this instrument is, among other things, a Deed of Trust; (b) as
to any property located in the States of Alabama, Florida, Illinois, Indiana,
Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, New Mexico,
Oklahoma, Pennsylvania, Vermont, Wisconsin, and Wyoming, this instrument is,
among other things, a Mortgage; (c) as to any property located in the State of
Georgia, this instrument is, among other things, a Deed to Secure Debt; (d) as
to any property located in the State of Oregon or Utah this instrument is, among
other things, a Trust Deed; (e) as to property located in the State of Virginia,
this instrument is, among other things, a Credit Line Deed of Trust as defined
in Section 55-58.2 of the Code of Virginia; (f) as to any property located in
the State of New Hampshire, this instrument is, among other things, a Mortgage
Deed; and (g) as to any property located in the State of Rhode Island, this
instrument is, among other things, an Open-End Mortgage to Secure Present and
Future Loans under Chapter 25 of Title 34 of the General Laws. For purposes of
Sections 49-2(c) and 49-4B(a) of the Connecticut General statutes, Section
5301.232 of the Ohio Revised Code and Section 42 Pa. C.S. Sections 8143-8144, et
seq, this instrument is, among other things, an Open-End Mortgage. THIS
INSTRUMENT SECURES, AMONG OTHER THINGS, FUTURE ADVANCES AND FUTURE OBLIGATIONS,
AND THE PARTIES INTEND THAT THIS INSTRUMENT SECURE FUTURE ADVANCES. As to any
property located in Missouri, future advances shall be governed by Section
443.055 RSMO. This instrument contains after-acquired property provisions and
secures obligations containing provisions for changes in interest rates,
extensions of time for payment and other modifications in the terms of the
obligations.
- --------------------------------------------------------------------------------
Property:
Facility Number 111
Rolling Hills Health Care Center
36255 St. Joseph Road
New Albany, Floyd County, IN
<PAGE>
MORTGAGE, OPEN END MORTGAGE, DEED OF TRUST, TRUST DEED, DEED TO SECURE
DEBT, CREDIT LINE DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY
AGREEMENT AND FINANCING STATEMENT (said instrument, as the same may be amended,
amended and restated, supplemented or otherwise modified, renewed or replaced
from time to time, the "Mortgage") dated as of January 31, 2000, from VENTAS
REALTY, LIMITED PARTNERSHIP, a Delaware Limited Partnership having its principal
office at 4360 Brownsboro Road, Suite 115, Jefferson County, Louisville,
Kentucky 40207-1642, as mortgagor, trustor and grantor hereunder ("Grantor") to
BANK OF AMERICA, N.A., a national banking association having an office at 901
Main Street, TX1-492-66-01, Dallas County, Dallas, TX 75202, in its capacity as
Administrative Agent for the benefit of the Secured Parties, as mortgagee
hereunder to the extent that this Mortgage operates as a mortgage, mortgage
deed, or an open end mortgage, and as grantee hereunder to the extent that this
Mortgage operates as a deed to secure debt (Bank of America, N.A., in its
capacity as Administrative Agent, whether as mortgagee, beneficiary or grantee
hereunder, is referred to herein as "Mortgagee").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Ventas Realty, Limited Partnership, as borrower (the "Borrower"),
is justly indebted to the Lenders in the aggregate principal sum of up to NINE
HUNDRED AND NINETY EIGHT MILLION, THREE HUNDRED SIXTY SEVEN THOUSAND AND NINE
HUNDRED DOLLARS ($998,367,900.00), together with interest thereon and other
amounts, payable in accordance with and pursuant to (i) that certain Amended and
Restated Credit, Security, Guaranty and Pledge Agreement dated as of April 29,
1998, as amended and restated as of January 31, 2000 among the Borrower, the
Guarantors referred to therein, the lenders from time to time party thereto
(said lenders, their respective successors and assigns, and any other persons
that may thereafter become parties thereto as lenders, being collectively
referred to herein as the "Lenders"), Bank of America, N.A., as Administrative
Agent and Issuing Bank and Morgan Guaranty Trust Company of New York, as
Documentation Agent (said Credit Agreement, as the same may be amended, amended
and restated, supplemented or otherwise modified, renewed or replaced from time
to time, the "Credit Agreement") and (ii) certain other loan documents executed
and delivered by the Borrower, any of its subsidiaries and the Guarantors
pursuant to or in connection with the Credit Agreement; and
WHEREAS, in this Mortgage, any reference to "Secured Indebtedness" shall
mean the total indebtedness, obligations and liabilities to be secured by this
Mortgage consisting of the sum of the following:
(i) the aggregate principal of all Loans and other advances made and to be
made by the Lenders under the Credit Agreement, the outstanding amount of
which shall not exceed NINE HUNDRED AND NINETY EIGHT MILLION, THREE HUNDRED
-2-
<PAGE>
SIXTY SEVEN THOUSAND AND NINE HUNDRED DOLLARS ($998,367,900.00) ("Mortgage
Amount") at any time; plus
(ii) interest on the principal amount of all Loans made and to be made by
the Lenders under the Credit Agreement, as provided in the Credit
Agreement; plus
(iii) all other amounts payable under the Credit Agreement, this Mortgage
and any other Fundamental Document (as defined herein) which relate to the
Credit Agreement, or any of the security therefor, in each case as the same
may be amended, amended and restated, modified or supplemented from time to
time (including advances to protect the collateral and all costs of
enforcement), or as the maturities thereof may be extended or renewed from
time to time; plus
(iv) any and all Hedging Obligations payable by Borrower to the Hedging
Banks or any amounts payable to Bank of America, N.A. or any other Lender
in connection with any bank account maintained by the Borrower or any other
Credit Party (as defined in the Credit Agreement) with Bank of America,
N.A. or any other Lender or any other banking services provided to the
Borrower or with any other Credit Party by Bank of America, N.A., Morgan
Guaranty Trust Company of New York or any other Lender with respect to, or
in any way related to, any of the Fundamental Documents; plus
(v) any other Obligations (as defined in the Credit Agreement) of the
Borrower; and
WHEREAS, the final maturity of the Secured Indebtedness is December 31,
2007 ("Maturity Date"); and
WHEREAS, Grantor is required to execute and deliver this Mortgage pursuant
to the terms of the Credit Agreement;
NOW, THEREFORE, for and in consideration of Ten Dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by Grantor, to ratably secure the punctual payment by Grantor when
due, whether at stated maturity, by acceleration or otherwise, of the Secured
Indebtedness and the performance and observance of all other covenants,
obligations and liabilities of Grantor under the Credit Agreement, this Mortgage
or any other document referred to as a Fundamental Document under the Credit
Agreement (the Credit Agreement, this Mortgage and such other documents being
herein collectively called the "Fundamental Documents"), Grantor does hereby
grant, bargain and sell, give, mortgage, warrant, convey, alien, remise,
release, assign, transfer, grant a security interest in, set over, deliver and
confirm unto Trustee in trust and to Mortgagee, as applicable, and their
respective successors and assigns forever, upon the terms and conditions of this
Mortgage, with power of sale and right of entry and possession (to the extent
permitted by Applicable Law), each and all of the real property, and further
grants to Trustee and to Mortgagee, as applicable, and
-3-
<PAGE>
their successors and assigns forever, a security interest in and to all other
property, described in the Granting Clauses set forth below.
Notwithstanding anything to the contrary herein contained,
1. to the extent the Mortgaged Property (as hereinafter defined) is located in
any of the following States, this Mortgage shall be deemed to be and shall be
enforceable as a mortgage, assignment of leases and rents, security agreement
and financing statement: Alabama, Florida, Illinois, Indiana, Kentucky,
Louisiana, Maine, Massachusetts, Michigan, Minnesota, New Mexico, Oklahoma,
Pennsylvania, Vermont, Wisconsin, and Wyoming;
2. to the extent the Mortgaged Property is located in any of the following
States, this Mortgage shall be deemed to be and shall be enforceable as a deed
of trust, assignment of leases and rents, security agreement and financing
statement: Arizona, California, Colorado, Idaho, Missouri, Montana, Nebraska,
North Carolina, Nevada, Tennessee, Texas and Washington;
3. to the extent the Mortgaged Property is located in any of the following
States, this Mortgage shall be deemed to be and shall be enforceable as an open
end mortgage, assignment of leases and rents, security agreement and fixture
financing statement: Connecticut, Ohio and Rhode Island;
4. to the extent the Mortgaged Property is located in Georgia this Mortgage
shall be deemed to be and shall be enforceable as a deed to secure debt,
assignment of leases and rents, security agreement and financing statement;
5. to the extent the Mortgaged Property is located in Virginia, this Mortgage
shall be deemed to be and shall be enforceable as a credit line deed of trust,
assignment of leases and rents, security agreement and financing statement;
6. to the extent that the Mortgaged Property is located in Oregon or Utah, this
Mortgage shall be deemed to be and shall be enforceable as a trust deed,
assignment of leases and rents, security agreement and financing statement; and,
7. to the extent that the Mortgaged Property is located in the State of New
Hampshire, this Mortgage shall be deemed to be and shall be enforceable as a
mortgage deed, assignment of leases and rents, security agreement and financing
statement.
Wherever herein contained, the phrase "Trustee and Mortgagee, as
applicable" or any similar phrase
a. shall be deemed to refer to "Trustee for the benefit of Mortgagee,
as beneficiary," to the extent the Mortgaged Property is located in any of
the States listed in subsections 2, 5, and 6 above, other than Missouri;
-4-
<PAGE>
b. shall be deemed to refer to "Mortgagee" to the extent the Mortgaged
Property is located in any of the States listed in subsection 1, 3 or 7 and
in such States Trustee shall have no rights, powers or obligations and all
references herein to Trustee and Beneficiary shall be deemed deleted; and
c. shall be deemed to refer to "Grantee" to the extent the Mortgaged
Property is located in any of the States listed in subsection 4; and
d. to the extent the Mortgaged Property is located in Missouri, shall
be deemed to refer (i) to Trustee for the benefit of Mortgagee in relation
to the grant of a lien on real property, to the habendum clause and to the
provisions relating to power of sale, (ii) to both Trustee and Mortgagee in
relation to the grant of a security interest in personal property and
fixtures and rights related thereto, and (iii) to Mortgagee in all other
instances, provided that nothing contained in this Mortgage shall be
construed to give Trustee the authority to exercise any rights or remedies
granted in this Mortgage without prior written authorization by Mortgagee
or the right or obligation to receive any payment of rents or other amounts
except in connection with the exercise of the power of sale.
To the extent the Mortgaged Property is located in any of the States listed
in subsections 2 or 5 above, references to Mortgagee shall, if the context so
requires, be deemed to be references to Mortgagee, as beneficiary.
To the extent the Mortgaged Property is located in any of the following
States, the term "Mortgaged Property," whenever used in this Mortgage, shall be
deemed to be references to "Trust Property": Arizona, California, Colorado,
Idaho, Missouri, Montana, Nebraska, North Carolina, Nevada, Oregon, Utah,
Tennessee, Texas and Washington.
Notwithstanding anything to the contrary herein contained, to the extent
the Mortgaged Property is located in the State of Pennsylvania, this Mortgage
shall not be deemed to be a purchase money mortgage.
Notwithstanding anything to the contrary herein contained, to the extent
the Mortgaged Property is located in the State of Illinois, for purposes of Ill.
Rev. Stat. ch. 110, paragraph 15-1302, all monies advanced to Grantor pursuant
to the terms of the Credit Agreement or other Fundamental Document subsequent to
the recording date of this Mortgage shall be deemed to be in furtherance of the
terms of this Mortgage and the Credit Agreement secured by this Mortgage.
-5-
<PAGE>
GRANTING CLAUSES
----------------
ALL of the estate, right, title and interest of the Grantor in and to all
of those certain lot(s), piece(s) or parcel(s) of land described on Schedule "A"
attached hereto and made a part hereof for all purposes, and all tenements,
hereditaments, servitudes, appurtenances, rights, privileges, and immunities
belonging or appertaining thereto (the foregoing is collectively referred to as
the "Land"); and
TOGETHER WITH, all of the estate, right, title and interest of the Grantor,
as lessor, both at law and in equity, under each lease identified on Schedule B
attached hereto, as the same may be hereafter amended, modified, restated,
extended, supplemented, renewed or consolidated, and all other leases which may
now or hereafter be entered into in respect of the Mortgaged Property, as the
same may be hereafter amended, modified, restated, extended, supplemented,
renewed or consolidated and all subleases, licenses, occupancy agreements or
concessions whereby any Person has agreed to pay money or any consideration to
the Grantor for the use, possession or occupancy of the Mortgaged Property or
any part thereof, and all rents, income, profits, benefits, avails, advantages
and claims against guarantors under any thereof (each of the foregoing is
referred to as a "Lease" and collectively are referred to as the "Leases") and
all rights in and to any deposits of cash, securities or other property which
may be held at any time and from time to time by Grantor as the lessor under the
Leases to secure the performance of the covenants, conditions and agreements to
be performed by any lessee thereunder;
TOGETHER WITH, all of the estate, right, title and interest of the Grantor,
as lessee, both at law and in equity, under each lease identified on Schedule B
attached hereto, as the same may be hereafter amended, modified, restated,
extended, supplemented, renewed or consolidated, and all other leases which may
now or hereafter be entered into by Grantor as lessee in respect of the
Mortgaged Property, as the same may be hereafter amended, modified, restated,
extended, supplemented, renewed or consolidated (each of the foregoing is
referred to as a "Ground Lease" and collectively are referred to as the "Ground
Leases") and all rights in and to any deposits of cash, securities or other
property which may be held at any time and from time to time by any lessor under
a Ground Lease to secure the performance of the covenants, conditions and
agreements to be performed by Grantor as lessee thereunder and any option or
right of first refusal to purchase the fee simple title to the Land, or any
greater interest therein that Grantor now owns; and
TOGETHER WITH, all right, title and interest of Grantor in and to all
structures, buildings, facilities and other improvements thereto or thereon
situate heretofore or hereafter erected or placed on the Land, and in and to all
building materials, equipment and fixtures of every kind and nature now or
hereafter located on the Land (the foregoing is collectively referred to as the
"Improvements"); and
TOGETHER WITH, all right, title and interest of Grantor in and to all
tenements, hereditaments, rights, rights-of-way, easements, privileges,
liberties, riparian rights and
-6-
<PAGE>
appurtenances thereunto belonging, or in any way appertaining to the Real
Property (as such term is defined herein) (including, without limitation, all
rights relating to storm and sanitary sewer, water, gas, electric, railway and
telephone services); all right, title and interest, if any, of the Grantor in
and to all gas, oil, minerals, coal and other substances of any kind or
character underlying such Real Property; all estate, claim, demand, right, title
or interest, if any, of the Grantor in and to any street, road, highway, or
alley (vacated or otherwise) adjoining said Real Property or any part thereof
(the foregoing is collectively referred to as the "Appurtenances"); and
TOGETHER WITH, all right, title and interest of Grantor in and to all
machinery, equipment, fixtures, furniture, fittings, inventory, appliances,
tools, accessories, building or construction materials and other property of
every kind whatsoever owned by Grantor (and, with respect to a lease of any of
the foregoing, to the extent of Grantor's rights as a lessee thereunder), or in
which Grantor has any right, title or interest, now or hereafter attached to, or
located in or upon, or used in connection with, the Real Property, together with
any and all additions thereto, substitutions therefor, and repairs,
replacements, improvements, and restorations thereof (including, without
limitation, all elevators, escalators, utility installations, plumbing, boilers,
heating, lighting, ventilation, air conditioning equipment, roof tanks, motors,
steam piping, sprinkler systems, cleaning equipment, spare parts of any kind
whatsoever, and other installations and fixtures of every kind whatsoever), and
all cash and non-cash proceeds thereof, all of which shall be deemed to be and
remain and form a part of the realty (to the maximum extent permitted by law)
and are covered by the lien of this Mortgage (the foregoing is collectively
referred to as the "Equipment"); and
TOGETHER WITH, all right, title and interest of Grantor in and to all
contracts, agreements, options, rights of first refusal or rights of first offer
and other agreements, understandings or arrangements relating to the ownership,
construction, maintenance, repair, operation, occupancy, sale or financing of
the Real Property or any part thereof, and all income, profits, benefits,
avails, advantages and claims against guarantors under any of them (the
foregoing is collectively referred to as the "Contracts"); and
TOGETHER WITH, all right, title and interest of Grantor in and to all
licenses, permits, certificates of occupancy and other governmental approvals
relating to construction, completion, occupancy, use or operation of the Real
Property or any part thereof, (all of the foregoing is collectively referred to
as the "Permits"); and
TOGETHER WITH, all right, title and interest of Grantor in and to all
drawings, plans, specifications and similar or related items relating to the
Real Property (the foregoing is collectively referred to as the "Plans"); and
TOGETHER WITH, all right, title and interest of Grantor in and to any and
all awards, damages, payment and other compensation, and any and all claims
therefor and rights thereto, which may result from taking or injury by virtue of
the exercise of the power of eminent
-7-
<PAGE>
domain, or any damage, injury or destruction in any manner caused to the Real
Property or the improvements thereon, or any part thereof (the foregoing is
collectively referred to as the "Condemnation Awards"); and
TOGETHER WITH, all right, title and interest of Grantor in and to the
insurance policies required to be maintained by the Grantor pursuant to the
Credit Agreement or this Mortgage ( the foregoing is collectively referred to as
the "Insurance Policies") and any and all proceeds of insurance policies of
every kind whatsoever, including title insurance (and all unearned premiums
thereon), now or hereafter payable by reason of any damage or destruction to the
Real Property, whether payable under the Insurance Policies or otherwise, and
all interest thereon (the foregoing is collectively referred to as the
"Insurance Policies and Proceeds"); and
TOGETHER WITH, all right, title and interest of the Grantor in and to all
other proceeds of the foregoing (the foregoing is collectively referred to as
the "Proceeds"). (In this Mortgage, the Land, the Leases, the Ground Leases, the
Appurtenances, the Improvements, and the Equipment are collectively referred to
as the "Real Property"; provided, however, that where the context would require
reference to tangible real property, the term "Real Property" shall mean the
Land, the Improvements, the Appurtenances and the Equipment and the other items
of tangible property which are referred to in the granting clauses hereinabove
set forth. The Real Property and all the other rights, interests, benefits and
properties described in the foregoing granting clauses is collectively referred
to as the "Mortgaged Property").
TO HAVE AND TO HOLD the above granted, conveyed, mortgaged and warranted
Mortgaged Property unto the Mortgagee, its successors, heirs and assigns, to its
and their own proper use, benefit and behoove forever,
PROVIDED THAT this Mortgage shall be discharged at the expense of Grantor
upon the Bank Credit Termination Date; or, if the Credit Agreement provides for
a discharge or release of the lien of this Mortgage or the reconveyance of the
Mortgaged Property to Grantor upon the payment to Mortgagee of a specified sum
other than the entire Secured Indebtedness (herein referred to as the "Release
Price"), upon payment in full of the Release Price to Mortgagee; or as otherwise
expressly provided in the Credit Agreement.
ARTICLE I
---------
GRANTOR REPRESENTS, WARRANTS, COVENANTS AND AGREES WITH
TRUSTEE AND MORTGAGEE AS FOLLOWS:
Section 1. Definitions. In this Mortgage, all words and terms not defined
herein shall have the respective meanings and be construed herein as provided in
the Credit Agreement. Any reference to a provision of the Credit Agreement shall
be deemed to incorporate that
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provision as a part hereof in the same manner and with the same effect as if the
same were fully set forth herein. In this Mortgage, unless otherwise specified,
references to this "Mortgage" or to "Lease(s)," "Credit Agreement," or
"Fundamental Document(s)" shall include all renewals, modifications, amendments,
restatements, supplements, extensions, consolidations, substitutions, spreaders
and replacements thereof, in whole or in part.
Section 2. Beneficiaries. Nothing herein expressed or implied is intended
or shall be construed to confer upon, or to give to, any person other than the
Grantor, the Trustee and the Mortgagee any right, remedy or claim under, or by
reason hereof. All covenants, stipulations and agreements herein contained by
and on behalf of the Grantor shall be for the sole and exclusive benefit of the
Trustee on behalf of the Mortgagee, and the Mortgagee, as agent for the Secured
Parties.
Section 3. No Credit for Taxes Paid. Grantor shall not be entitled to any
credit against payments due hereunder by reason of the payment of any taxes,
assessments, water or sewer rent or other governmental charges levied against
the Mortgaged Property.
Section 4. Representations; Seisin and Warranty. Grantor represents and
warrants that the Grantor is the owner of a good, valid and subsisting ownership
interest in the Real Property (except for trade fixtures and other improvements
and property owned by tenants under any Lease) free and clear of all liens other
than liens which are Permitted Encumbrances. As and to the extent required under
the provisions of Section 5.10 of the Credit Agreement, Grantor shall warrant,
defend and preserve such title and the rights granted by this Mortgage against
all claims of all Persons and shall maintain the Real Property free and clear of
all liens other than liens which are Permitted Encumbrances. Grantor further
warrants that it has the absolute right to grant this Mortgage without the
necessity of obtaining the consent of any Person. This Mortgage constitutes a
valid, binding and enforceable first lien on the Mortgaged Property, subject
only to the Permitted Encumbrances (as said term is defined in the Credit
Agreement). Grantor shall cause the representation and warranties in this
Section 4 to continue to be true in each and every respect.
Section 5. Preservation, Maintenance and Repair. Subject to the provisions
of Section 5.3 of the Credit Agreement, all buildings, structures and other
improvements which are presently erected or in the future are to be erected upon
the Real Property, shall be kept and maintained or caused to be kept and
maintained in good and substantial repair, working order and condition. All of
Grantor's right, title and interest in and to all alterations, replacements,
renewals or additions made pursuant to this Section shall automatically become
and constitute a part of the Mortgaged Property and shall be covered by the lien
of this Mortgage.
Section 6. No Additional Liens. Subject to the provisions of Section 6.8 of
the Credit Agreement, Grantor shall not, without the prior express written
consent of the Mortgagee, remove or suffer to be removed from the Mortgaged
Property any fixtures subject to the lien hereof (as the term "fixtures" is
defined by the law in the State in which the Real Property is
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located) and including all personal property owned by Grantor located on and
used in connection with the Real Property, presently or in the future to be
incorporated into, installed in, annexed or affixed to the Mortgaged Property
(unless such fixtures and property have been replaced with similar fixtures of
equal or greater value; are removed by a tenant in accordance with the rights of
such tenant under its Lease; or are sold, disposed of or removed in accordance
with the terms of the Credit Agreement); nor, except as expressly provided or
permitted pursuant to the Credit Agreement, will the Grantor execute or cause to
be executed any security interest upon any such fixtures, additions to,
substitutions or replacements thereof or upon any fixtures in the future to be
installed in, annexed or affixed to the Mortgaged Property, without the prior
express written consent of the Mortgagee.
Section 7. Secured Indebtedness; Performance. Grantor shall duly and
punctually pay when due the Secured Indebtedness. Grantor will perform and
observe all of its obligations under the Credit Agreement and the other
Fundamental Documents to which it is a party. Grantor shall duly perform and
abide by the terms and covenants herein.
Section 8. Waiver. The acceptance by the Trustee or Mortgagee of any
payments hereunder, after Default, or the failure of the Trustee or Mortgagee,
in any one or more instances to insist upon strict performance by the Grantor of
any terms and covenants of this Mortgage or to exercise any option or election
herein conferred, shall not be deemed to be a waiver or relinquishment for the
future of any such terms, covenants, elections or options.
Section 9. Mortgage as Security Agreement. This Mortgage constitutes a
security agreement under the Uniform Commercial Code of the State in which the
Real Property is situated, and the Grantor hereby grants to the Mortgagee a
security interest in all of Grantor's right, title and interest in and to all
goods, inventory, furniture, fixtures and equipment, and all other machinery,
appliances, furnishings, tools, personal property and building materials, now
owned or hereafter acquired by the Grantor, and installed or to be installed in
or on the Mortgaged Property, or used or to be used in the business, management
or operation of the Mortgaged Property, and all substitutions, replacements,
additions and accessions thereto (provided that any such substitutions,
replacements, additions and accessions thereto shall be of equal or greater
value), together with all cash and non-cash proceeds thereof. The names and
mailing addresses of Grantor (Debtor), Mortgagee (Secured Party) and Trustee
appear at the beginning hereof. The Grantor shall execute, deliver, file and
refile any financing statements, or continuation statements that the Trustee or
Mortgagee may reasonably require from time to time to perfect or confirm the
lien of this Mortgage with respect to such property. Without limiting the
foregoing, Grantor hereby irrevocably authorizes the Mortgagee to file UCC
financing statements and any amendments thereto or continuations thereof, and
any other appropriate security documents or instruments and to give any notices
necessary or desirable to perfect or confirm the lien of this Mortgage with
respect to such property, in all cases without the signature of Grantor or to
execute such items as attorney-in-fact for Grantor; provided, that Mortgagee
shall provide copies of any such documents or instruments to Grantor.
Notwithstanding any release of any or all of that property included in the
Mortgaged Property which is deemed "real property," and
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proceedings to foreclose this Mortgage or its satisfaction of record, the terms
hereof shall survive as a security agreement with respect to the security
interest created hereby and referred to above until the Bank Credit Termination
Date or until this Mortgage is otherwise discharged or released in accordance
with the terms of the Credit Agreement. This instrument shall be deemed a
fixture financing statement under the Uniform Commercial Code of the State in
which the Real Property is situated.
Section 10. No Assignment. Unless otherwise expressly provided or permitted
in the Credit Agreement, this Mortgage shall not be assigned by the Grantor
without the prior express written consent of the Mortgagee.
Section 11. Date of Mortgage. The date of this Mortgage shall be for
identification purposes only and shall not be construed to imply that this
Mortgage was executed on any date other than the respective dates of the
acknowledgments of the parties hereto. This Mortgage shall become effective upon
its delivery.
Section 12. Taxes; Recording Taxes and Fees. (a) Subject to the provisions
of Section 5.9 and Section 6.2 (g) of the Credit Agreement, Grantor shall
promptly pay and discharge or cause to be promptly paid and discharged all
taxes, assessments, municipal or governmental rates, charges, impositions, liens
and water and sewer rents or any part thereof (each an "Imposition",
collectively the "Impositions"), heretofore or hereafter imposed upon the
Mortgaged Property, Grantor or in respect of this Mortgage. Within fifteen (15)
Business Days of a written request by Trustee or Mortgagee, Grantor shall submit
or cause to be submitted to Mortgagee receipted bills or other evidence showing
payment of the Impositions or that the same are being contested on the terms set
forth in Section 5.9 or 6.2 (g) of the Credit Agreement.
(b) Grantor will pay all filing, registration or recording fees, and all
reasonable expenses incident to the execution and acknowledgment of this
Mortgage, any mortgage supplemental hereto, any assignments of leases and rents,
profits and leases, any security instrument with respect to any equipment, any
subordination, non-disturbance and attornment agreement in connection with any
Lease, and any instrument of further assurance, and all federal, state, county
and municipal stamp taxes, mortgage recording taxes, and other taxes, duties,
imposts, assessments and charges arising out of or in connection with the
execution and delivery of this Mortgage, any mortgage supplemental hereto, any
security instrument with respect to any equipment or any instrument of further
assurance.
Section 13. Change in Laws. During the term of this Mortgage, in the event
of the passage of any law or regulation which changes in any way the laws now in
force for the taxation of mortgages, or debts secured thereby, for state or
local purposes, or the manner of the operation of any such taxes, so as to
affect the interest of the Trustee, Mortgagee, Secured Parties or the Lenders,
then and in such event, the Grantor shall bear and pay the full amount of such
taxes; provided however, that Grantor shall not be responsible for the payment
of any income or franchise taxes of the Trustee, Mortgagee, Secured Parties or
the Lenders.
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Section 14. Insurance. Grantor shall maintain in full force and effect or
cause to be maintained in full force and effect Insurance Policies during the
life of this Mortgage, insuring the Mortgaged Property against fire, extended
coverage and other insurable hazards, casualties and contingencies as required
under Section 3.30 and Section 5.5 of the Credit Agreement.
Section 15. Damage and Destruction. If the Mortgaged Property, or any
material part thereof, shall be destroyed or damaged by fire or any other
casualty, whether insured or uninsured, Grantor shall give notice thereof to
Mortgagee within thirty (30) days after the occurrence of such casualty.
Notwithstanding anything to the contrary contained herein or in any other
provision of Applicable Law, the proceeds of Insurance Policies coming into the
possession of Trustee or Mortgagee shall not be deemed trust funds and such
proceeds shall be held, applied, and disbursed in accordance with Section 2.8(e)
of the Credit Agreement, without affecting the lien of the Mortgage for the full
amount secured hereby before such payment took place.
Section 16. Condemnation/Eminent Domain. Promptly upon obtaining knowledge
of the institution of any proceedings for the condemnation of the Mortgaged
Property, or any portion thereof which would result in Condemnation Proceeds of
$300,000 or more, Grantor will notify Mortgagee in writing of the pendency of
such proceedings. Grantor shall, at its sole expense, diligently prosecute any
such proceeding. All Condemnation Awards shall be held, applied, and disbursed
in accordance with Section 2.8(f) of the Credit Agreement.
Section 17. Compliance with Laws. Grantor agrees to comply or cause
compliance with all Applicable Laws relating to the Mortgaged Property as and to
the extent required by the terms of the Credit Agreement. Without limiting any
other provision of this Mortgage, the Grantor shall not initiate, consent to or
affirmatively support any change in applicable zoning which would materially and
adversely affect the value of the lien created by this Mortgage or seek any
zoning variance or permission which would materially and adversely affect the
value of the lien created by this Mortgage, in either case without the consent
of Mortgagee, which consent shall not be unreasonably withheld, or except to the
extent Grantor is required to take any of such actions, or to cooperate
therewith pursuant to the terms of any Lease.
Section 18. Environmental Laws. Grantor shall comply or cause compliance
with all of the terms, conditions and provisions of the Credit Agreement
relating to compliance with Environmental Laws; notification requirements with
respect to violations or potential violations thereof; testing, sampling and
investigation requirements; and all other requirements and obligations with
respect to Environmental Laws, in each case as and to the extent required in the
Credit Agreement. Nothing herein, in the Credit Agreement or other Fundamental
Documents shall be construed as devolving control of the Real Property or
imposing "owner or operator" status upon Trustee or Mortgagee prior to any
purchase of the Real Property by Mortgagee at foreclosure or the taking of a
deed in lieu of foreclosure.
Section 19. Indemnification. If any action or proceeding arising out of or
relating to the Mortgaged Property, this Mortgage or any of the transactions
contemplated herein shall be
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commenced, to which action or proceeding the holder of this Mortgage is made a
party, or in which it becomes necessary to defend or uphold the lien of this
Mortgage, the expense of any litigation to prosecute or defend the rights and
lien created by this Mortgage (including reasonable attorneys' fees, charges and
disbursements through all appeals but excluding any such expenses to the extent
incurred (x) by reason of the gross negligence or willful misconduct, as
determined by a final order or judgment of a court of competent jurisdiction, of
Mortgagee, or (y) in any litigation in which Mortgagee and Grantor are adverse
to each other, and in which the Grantor prevails on its claims and the Mortgagee
does not prevail on its defenses or its counterclaims interposed in such
litigation), shall be paid by the Grantor, and until so paid, any such sum and
the interest thereon shall be a lien on the Mortgaged Property, prior to any
right, or title to, interest in or claim upon the Mortgaged Property attaching
or accruing subsequent to the lien of this Mortgage, and shall be deemed to be
secured by this Mortgage. In any action or proceeding to foreclose this
Mortgage, or to recover or collect the debt secured hereby, the provisions of
law respecting the recovery of costs, disbursements and allowances shall prevail
unaffected by this covenant. The indemnity obligations of Grantor set forth in
this Section 19 are in addition to and not in limitation of any indemnity
obligations provided in the Credit Agreement and shall survive (on an unsecured
basis) the Bank Credit Termination Date, the termination of the Credit Agreement
and/or the discharge and release of this Mortgage.
Section 20. Assignment of Leases and Rents. The Grantor hereby assigns to
the Mortgagee all Leases, rents, issues and profits (collectively the "Rents")
relating to or arising out of or from the Mortgaged Property as further security
for the payment of the Secured Indebtedness secured hereby, and the Grantor
grants to the Trustee and Mortgagee the right to enter upon and to take
possession of the Mortgaged Property for the purpose of collecting the Rents and
to let the Mortgaged Property or any part thereof, and to apply the Rents after
payment of all necessary charges and expenses, on account of the Secured
Indebtedness. The assignments of the Leases and Rents are and shall be present,
absolute and irrevocable assignments and not merely the passing of a security
interest and such assignments shall continue in effect until the Bank Credit
Termination Date or until this Mortgage is otherwise discharged and released in
accordance with the terms of the Credit Agreement; provided however, for so long
as no Event of Default exists, the Trustee and Mortgagee hereby waive the right
to enter upon and to take possession of the Mortgaged Property for the purpose
of collecting the Rents and further grant to Grantor a revocable license to
collect the Rents. Said license shall terminate and be revoked automatically
upon the occurrence of an Event of Default. Grantor shall not, without the
written consent of the Mortgagee (i) receive or collect rent from any tenant of
the Mortgaged Property or any part thereof for a period of more than one month
in advance, (excluding any security deposits as provided in leases expressly
approved by the Mortgagee or otherwise permitted by the Credit Agreement); and
(ii) except as expressly permitted by the Credit Agreement, assign or attempt to
assign the Leases or the Rents to any Person other than Mortgagee. Upon the
occurrence of any Event of Default, Grantor shall pay the Rents or cause the
Rents to be paid to the Mortgagee, or to any receiver appointed to receive the
Rents.
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Section 21. Mortgagee's Performance of Grantor's Obligations. Subject to
the restrictions on the following actions contained in any Lease and Grantor's
ability to enforce the Leases in a commercially reasonable manner, if Grantor
shall fail to do any act or thing which it has covenanted to do hereunder, under
the Credit Agreement or other Fundamental Document, or any representation or
warranty of Grantor shall be breached, Mortgagee or Trustee may (but shall not
be obligated to) do the same or cause it to be done or remedy any such breach,
and there shall be added to the debt secured by this Mortgage until paid, the
costs and expenses incurred by Mortgagee or Trustee in so doing (including
without limitation reasonable attorneys' fees, charges and disbursements through
all appeals), and any and all amounts expended by Mortgagee or Trustee in taking
any such action shall be repayable upon demand therefor and shall bear interest
at a rate per annum set forth in Section 2.9(a)(iii) of the Credit Agreement
from time to time in effect from the date advanced to the date of repayment. Any
such sums and the interest thereon shall be a lien on the Mortgaged Property
prior to any other lien attaching to or accruing subsequent to the lien of this
Mortgage to the fullest extent permitted by law.
Section 22. No Waiver of Existing or Future Rights. No other security
previously or hereafter granted by Grantor to Trustee or Mortgagee to secure
payment of the amount secured by this Mortgage shall be impaired or affected by
this Mortgage; and no security subsequently taken by Trustee or Mortgagee to
secure payment of the amount secured by this Mortgage shall affect or impair the
lien of this Mortgage, but all such additional security shall be deemed
cumulative. Trustee or Mortgagee may resort for payment of the amount secured by
this Mortgage to any security held by Trustee or Mortgagee, in such order and
manner as Mortgagee, in its sole discretion, may elect.
Section 23. Permitted Exceptions. Except as permitted pursuant to the
Credit Agreement, at no time throughout the term of this Mortgage shall the
Grantor create, incur, assume or suffer to exist any mortgage, deed of trust,
pledge, lien, security interest or encumbrance on or with respect to any of the
Mortgaged Property.
Section 24. Lease Provisions. Grantor covenants and agrees specifically
with respect to each Lease, and the leasehold estate created thereunder that:
(a) In case any proceeds of insurance upon the Land, the Mortgaged Property
or any part thereof are deposited with any person other than the Mortgagee
pursuant to the requirements of the Lease, Grantor will promptly notify the
Mortgagee in writing of the name and address of the person with whom such
proceeds have been deposited and the amount so deposited.
(b) Grantor will promptly notify the Mortgagee in writing of any request
made by either party to a Material Lease to the other party thereto for
arbitration or appraisal proceedings pursuant to such Lease, and of the
institution of any arbitration or appraisal proceedings and promptly deliver to
Mortgagee a copy of the determination of the arbitrators or appraisers in each
such proceeding.
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(c) As further security for the Secured Indebtedness, Grantor hereby agrees
to deposit with the Mortgagee a fully executed counterpart of the Lease and all
supplements thereto and amendments thereof, in each case if and to the extent
Grantor possesses such documents, to be retained by the Mortgagee until the Bank
Credit Termination Date or until this Mortgage is otherwise discharged and
released in accordance with the terms of the Credit Agreement.
(d) As to any Material Lease relating to all or any portion of the
Mortgaged Property, Grantor shall (i) as and to the extent required under the
provisions of Section 5.8 of the Credit Agreement, appear in and defend any
action or proceeding arising under or in any manner connected with such Lease or
the obligations of Grantor as lessor thereunder; (ii) exercise, within ten (10)
days after a request by Mortgagee, any right to request from the lessee a
certificate with respect to the status thereof; (iii) deliver to Mortgagee upon
Mortgagee's request, a written statement, certified by Grantor as being true,
correct and complete, to the best of Grantor's knowledge, containing the names
of all lessees under Material Leases affecting the Mortgaged Property, the terms
of all such Leases and the spaces occupied and rentals payable thereunder, and a
list of all Material Leases which are then in default, including the nature and
magnitude of such default.
(e) All Leases entered into by Grantor after the date hereof shall provide
that all rights of any lessees thereunder shall be subject and subordinate in
all respects to the lien and provisions of this Mortgage unless Mortgagee shall
otherwise elect in writing. With respect to such Leases, Grantor shall use all
commercially reasonable efforts to deliver to Mortgagee as soon as reasonably
practicable after the effective date of such Leases, executed and acknowledged
subordination, non-disturbance and attornment agreements and estoppel
certificates, in form and substance reasonably satisfactory to Mortgagee and
Grantor; provided, that commercially reasonable efforts shall not be construed
as requiring payment of any consent fee or other consideration for any third
party's execution and delivery of any such agreement.
Section 25. Ground Lease Provisions. (a) Grantor covenants and agrees
specifically with respect to each Ground Lease and the leasehold estate created
thereunder that, subject to the restrictions on any of the following actions
contained in any Lease and the Grantor's ability to enforce the Leases in a
commercially reasonable manner, Grantor shall maintain the Ground Lease in full
force and effect and not take or allow to be taken any action that would
terminate or cancel, or permit the termination or cancellation of, the Ground
Lease without the prior written consent of Mortgagee and the Required Lenders,
which consents shall not be unreasonably withheld. Notwithstanding the
foregoing, the obligation of Grantor to perform the covenants and agreements set
forth in this Section 25(a) shall be no greater than the obligations of Grantor
set forth in the Credit Agreement.
(b) Grantor shall pay on or before the due dates thereof all rents and
other amounts payable under the provisions of the Ground Lease (subject to the
expiration of any cure period applicable thereto) and subject to the
restrictions on the following actions contained in any Lease and Grantor's
ability to enforce the Leases in a commercially reasonable manner, will timely
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and fully observe and perform all of the terms, covenants, agreements and
conditions of the Ground Lease required therein to be observed and performed by
Grantor as lessee; provided however, that the obligation of Grantor to perform
the covenants and agreements set forth in this sentence shall be no greater than
the obligations of Grantor set forth in Section 5.8 of the Credit Agreement.
Grantor shall upon written request, furnish to Mortgagee satisfactory evidence
of payment evidencing the payment of all rents due thereunder, which evidence
shall be furnished to Mortgagee semiannually for the preceding months of such
semiannual period. Grantor will not do or permit anything to be done, the doing
of which or refrain from doing anything, the omission of which, will terminate
or impair or tend to impair the security of this Mortgage or will be grounds for
terminating the Ground Lease or declaring a forfeiture thereof; provided
however, that the obligation of Grantor to perform the covenants and agreements
set forth in this sentence shall be no greater than the obligations of Grantor
set forth in Section 5.8 of the Credit Agreement.
(c) Grantor agrees that in the event of the acquisition by Grantor at any
time of the fee estate in the Land described in Schedule "A" attached hereto, or
any part thereof, there shall be no merger of such fee estate with the leasehold
estate created and existing by virtue of the Ground Lease, and the Ground Lease
shall remain in full force and effect in accordance with its terms as a separate
and distinct estate in the land.
(d) If an Event of Default has occurred and is continuing, at Mortgagee's
election, Mortgagee may make any payments or do any act or thing required to be
paid or done by the Grantor as lessee under the Ground Lease. Thereupon
Mortgagee shall in addition to all other remedies of Mortgagee available herein,
in the Credit Agreement or other Fundamental Documents, be fully subrogated to
any and all rights of Grantor, as lessee, under the terms and provisions of the
Ground Lease arising from or relating to such payment or performance.
(e) Grantor will not surrender the leasehold estate created by the Ground
Lease, nor terminate or cancel the Ground Lease, in each case without the
consent of the Mortgagee and the Required Lenders, which consents shall not be
unreasonably withheld, and Grantor will not modify, change, supplement, alter,
or amend the Ground Lease either orally or in writing other than as permitted by
Section 6.21 of the Credit Agreement.
(f) No release or forbearance of any obligations under the Ground Lease,
pursuant to the Ground Lease or otherwise, shall release Grantor from any of its
obligations under this Mortgage.
(g) Grantor will promptly notify Mortgagee in writing of the commencement
of a proceeding under the federal bankruptcy laws by or against the lessor under
a Ground Lease.
(h) If any of the Secured Indebtedness secured hereby remains unpaid at the
time when notice may be given by the lessee under the Ground Lease of the
exercise of any right to renew or extend the term of the Ground Lease, Grantor
will properly and timely exercise such right
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of extension or renewal and promptly give notice to the lessor of the exercise
of such right of extension or renewal, provided that Grantor shall not be
obligated to exercise any right to renew or extend the term of the Ground Lease
unless the property which is the subject of such Ground Lease has been subleased
by the Grantor pursuant to a Material Lease, and the term of the Ground Lease
will expire prior to the expiration of such sublease if such renewal or
extension right is not exercised by Grantor.
(i) In case any proceeds of insurance upon the Land, the Mortgaged Property
or any part thereof are deposited with any person other than Mortgagee pursuant
to the requirements of the Ground Lease, Grantor will promptly notify Mortgagee
in writing of the name and address of the person with whom such proceeds have
been deposited and the amount so deposited.
(j) Grantor will promptly notify Mortgagee in writing of any request made
by either party to the Ground Lease to the other party thereto for arbitration
or appraisal proceedings pursuant to the Ground Lease, and of the institution of
any arbitration or appraisal proceedings and promptly deliver to Mortgagee a
copy of the determination of the arbitrators or appraisers in each such
proceeding.
(k) As further security for the Secured Indebtedness, Grantor hereby agrees
to deposit with the Mortgagee a fully executed counterpart of the Ground Lease
and all supplements thereto and amendments thereof, to be retained by the
Mortgagee until the Secured Indebtedness secured hereby is fully paid, in each
case if and to the extent Grantor possesses such documents.
(l) For purposes of Section 4 of Article 1, the term "ownership interest in
the Real Property" shall mean "leasehold estate in the Real Property."
Section 26. Transfer of Mortgaged Property. Except as permitted pursuant to
the provisions of Section 6.8 of the Credit Agreement, Grantor shall not sell,
transfer, convey or assign all or any portion of, or any interest in the
Mortgaged Property, whether legal or equitable, by outright sale, deed,
installment sale contract, land contract, contract for deed, leasehold interest,
lease option, contract or any other method of conveyance of real property
interests.
Section 27. Future Advances. This Mortgage shall secure the payment of all
loans, monies, credit and other Secured Indebtedness advanced under the Credit
Agreement and the other Fundamental Documents and/or this Mortgage or otherwise,
whether the entire amount shall have been advanced at the date hereof or at a
later date, or having been advanced, shall have been repaid in part and further
advances made at a later date, and whether or not related to the original
advances, together with the specified interest thereon. It is understood that,
at any time before the cancellation and release of this Mortgage, the Credit
Agreement and the other Fundamental Documents and/or this Mortgage or other
document related to any Secured Indebtedness, including the terms of repayment,
may from time to time be modified or amended in writing thereon by the parties
liable thereon and the holder thereof to include any future advance or advances
for any purpose made by the holder, at its option, to or for said parties liable
thereon.
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Section 28. Application of Payments and Repayments. So long as the balance
of the Loans exceeds the portion of the Secured Indebtedness secured by this
Mortgage, any payments and repayments of the Loans by Borrower shall not be
deemed to be applied against, or to reduce, the portion of the Secured
Indebtedness secured by this Mortgage. Such payments shall instead be deemed to
reduce only such portions of the Secured Indebtedness as are secured by
mortgages and deeds of trust encumbering real property located outside the State
in which the Real Property is located, which mortgages and deeds of trust also
secure in part the Secured Indebtedness (except to the extent, if any, that
specific mortgages and deeds of trust in such states contain specific
limitations on the amount secured).
Section 29. Other Security. Trustee or Mortgagee may resort to any other
security held by Trustee or Mortgagee for the payment of the Secured
Indebtedness or the performance of the Obligations in such order and manner as
Mortgagee may elect; provided however, that Trustee or Mortgagee may resort to
the sale of any other security held by Trustee or Mortgagee for the payment of
the Secured Indebtedness or the performance of the Obligations to the extent
that the sale of any such other security is, in the reasonable judgment of
Mortgagee, necessary for the payment of the Secured Indebtedness or the
performance of the Obligations and no such action by Trustee or Mortgagee shall
operate to modify or terminate any of the rights, powers or remedies contained
in the Credit Agreement or other Fundamental Documents.
Section 30. No Exhaustion of Remedies Required. Notwithstanding anything
contained herein to the contrary, neither Trustee nor Mortgagee shall be under
any duty to Grantor, any Affiliate, or others, including, without limitation,
the holder of any junior, senior or subordinate mortgage on the Mortgaged
Property or any part thereof or on any other security held by Trustee or
Mortgagee, to exercise or exhaust all or any of the rights, powers and remedies
available to Trustee or Mortgagee, whether under this Mortgage or any other
document evidencing or securing the payment of the Secured Indebtedness or the
performance of the Obligations prior to the sale of the Mortgaged Property.
Section 31. No Merger of Estates. If the Real Property consists of a
leasehold estate, then so long as the Secured Indebtedness shall remain unpaid,
unless Mortgagee shall otherwise consent, the fee title to any leasehold estate
in the Real Property created by the Lease shall not merge but shall always be
kept separate and distinct, notwithstanding the union of such estates either in
the lessor or in the lessee under the Lease or in a third party, by purchase or
otherwise. Grantor further covenants and agrees that, in case it shall acquire
the fee title, or any other estate, title or interest in the Real Property, or
any part thereof, covered by the Lease or this Mortgage, this Mortgage shall
attach to and cover and be a lien upon such other estate so acquired, and such
other estate so acquired by Grantor shall be mortgaged to Mortgagee and the lien
hereof spread to cover such estate with the same force and effect as though
specifically herein mortgaged. Grantor shall, upon demand, execute such further
instruments to facilitate the intent of this Section as Trustee or Mortgagee
shall reasonably request.
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Section 32. Revolving Credit Loans. The Obligations secured by this
Mortgage include Revolving Credit Loans made, and Obligations relating to
Letters of Credit issued or extended under the Credit Agreement which are
advanced, paid and readvanced from time to time. Notwithstanding the amount
outstanding at any particular time, this Mortgage secures the total amount of
Obligations (except to the extent, if any, that the amount secured by this
Mortgage is limited to fixed amounts in certain states specified in this
Mortgage). The unpaid balance of the Revolving Credit Loans and the Obligations
relating to Letters of Credit issued or extended under the Credit Agreement may
at certain times be, or be reduced to, zero. A zero balance, by itself, does not
affect any Issuing Bank's obligation to issue or extend Letters of Credit or to
make payments upon draws under Letters of Credit or any Lender's obligation to
advance Revolving Credit Loans or to participate in Letters of Credit subject to
the conditions stated in the Credit Agreement. Each of the security interest of
the Trustee or Mortgagee hereunder and the priority of the lien of this Mortgage
will remain in full force and effect with respect to all of the Obligations
notwithstanding such a zero balance of the Revolving Credit Loans, and
obligations with respect to Letters of Credit and the lien of this Mortgage will
not be extinguished, terminated or released except as expressly provided in this
Mortgage or the Credit Agreement.
ARTICLE II
----------
THE OCCURRENCE OF ANY OF THE FOLLOWING EVENTS SHALL BE AN
EVENT OF DEFAULT UNDER THIS MORTGAGE:
Section 1. Event of Default Under the Fundamental Documents. The occurrence
of any Event of Default under the Credit Agreement or other Fundamental
Documents.
Section 2. Transfers. If the Mortgaged Property, any part thereof, any
interest therein, or any interest in Grantor shall be transferred, conveyed,
sold, assigned or encumbered, except as expressly permitted by this Mortgage,
the Credit Agreement or other Fundamental Documents.
Section 3. Breach of Covenants. Grantor shall have failed to perform any of
the terms, covenants, conditions or undertakings contained in this Mortgage, and
such default shall continue unremedied for thirty (30) days after a Grantor
receives notice thereof from Mortgagee.
ARTICLE III
-----------
SHOULD ANY EVENT OF DEFAULT BE MADE BY THE GRANTOR, THE
TRUSTEE OR THE MORTGAGEE MAY TAKE ANY OR ALL OF THE
FOLLOWING ACTIONS, AT THE SAME OR AT DIFFERENT TIMES:
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Section 1. Acceleration. The Trustee or Mortgagee may declare the entire
Secured Indebtedness to be due and payable immediately, and upon any such
declaration, the entire unpaid balance of the Secured Indebtedness shall be
immediately due and payable without presentment, demand, protest or further
notice of any kind, all of which are expressly waived by Grantor, anything
herein or in any other Fundamental Documents notwithstanding.
Section 2. Possession. The Trustee or Mortgagee shall have the right
forthwith after any such Event of Default to enter upon, and take possession of,
the Mortgaged Property, and to lease and let the said Mortgaged Property, and to
receive all the Rents thereof which are overdue, due or to become due, and to
apply the same, after payment of all necessary charges and expenses, on account
of the amounts hereby secured, and the holder of this Mortgage is given and
granted full power and authority to do any act or thing which the Grantor or the
successors or assigns of the Grantor who may then own the Mortgaged Property
might or could do in connection with the management and operation of the
Mortgaged Property (including, without limitation, complete the construction of
the Improvements and, in the course of such completion, make such changes as
Mortgagee deems advisable). This remedy shall be effective either with or
without any action brought to foreclose this Mortgage and without applying at
any time for a receiver of such rents. Costs and expenses (including, without
limitation, all reasonable attorneys' fees, expenses and charges through all
appeals) incurred by the Trustee and Mortgagee under this Section shall become
part of the Secured Indebtedness secured hereunder.
Section 3. Foreclosure. (a) The Trustee or Mortgagee may institute an
action of mortgage foreclosure, or take other action as the law may allow, at
law or in equity, for the enforcement of this Mortgage, and proceed thereon to
final judgment and execution of the entire amount secured hereby including costs
of suit, interest and reasonable attorneys' fees. In case of any sale of the
Mortgaged Property by virtue of judicial proceedings, the Mortgaged Property may
be sold in one parcel and as an entirety or in such parcels, manner or order as
the Mortgagee in its sole discretion may elect. The failure to make any tenant a
party defendant to a foreclosure proceeding and to foreclose its rights will not
be asserted by the Grantor as a defense in any proceeding instituted by the
Trustee or Mortgagee to collect the Obligations secured hereby or any deficiency
remaining unpaid after the foreclosure sale of the Mortgaged Property. Costs and
expenses incurred by the Mortgagee or Trustee (including, without limitation,
all reasonable attorneys' fees, expenses and charges through all appeals) under
this Section shall become part of the Secured Indebtedness secured hereby.
Proceeds realized from a foreclosure of this Mortgage shall be applied in
accordance with the provisions of Section 5 of this Article 3.
(b) If Mortgagee elects to have foreclosure by exercise of the power of
sale granted herein:
(i) Upon such election, Trustee or Mortgagee shall give such notice of
an Event of Default and election to sell as may then be required by
Applicable Law, and shall advertise the sale in the manner prescribed by
Applicable Law.
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Upon the expiration of such time following the advertisement of sale, and
the giving of such notice of sale as may then be required by Applicable
Law, and without the necessity of any demand on Grantor, the Trustee or the
Mortgagee as applicable, at the time and place specified in the notice and
advertisement of sale, shall sell the Mortgaged Property, upon such terms
and conditions as shall be required under Applicable Law. The Trustee or
the Mortgagee, as applicable, may from time to time postpone any sale by
public announcement at the time and place noticed therefor. Any person,
including Grantor, Trustee or Mortgagee, may purchase at any sale.
(ii) Upon any sale, the Trustee or Mortgagee, as applicable, Trustee
shall execute and deliver to the purchaser a deed conveying the Mortgaged
Property, with special warranty, and the purchaser shall be let into
immediate possession. If Grantor, or its heir, executor, administrator,
successor or assign, occupies the Mortgaged Property at the time of its
sale: (x) each and all shall immediately become the tenant of the
purchaser, under a tenancy from day to day, terminable at the will of
either tenant or landlord, at a reasonable rent per day based upon the
value of the Mortgaged Property, such rent to be due daily to the
purchaser; (y) an action in unlawful detainer shall lie if the tenant holds
over after a demand in writing for possession of the Mortgaged Property;
and (z) this agreement and the deed delivered by the Trustee or Mortgagee,
as applicable, shall constitute the agreement under which any such tenant's
possession arose and continued. The recitals in any deed delivered by
Trustee of facts, such as the occurrence of an Event of Default, the giving
of notice of default and notice of sale, demand that such sale be made,
postponement of sale, terms of sale, sale, purchase, payment of purchase
money and other facts affecting the regularity or validity of such sale or
disposition, shall be prima facie proof of the truth of such facts.
(iii) The Trustee or the Mortgagee, as applicable, is hereby
irrevocably appointed the true and lawful attorney-in-fact of Grantor to
make all necessary conveyances, assignments, transfers and deliveries of
the Mortgaged Property and rights so-sold and to execute all necessary
instruments of conveyance, assignment and transfer. The Trustee or the
Mortgagee, as applicable, may substitute one or more Persons with like
power. Grantor hereby ratifies and confirms all that Trustee or Mortgagee,
or any substitute of either of them, shall lawfully do by virtue-hereof.
Nevertheless, upon request by Trustee or Mortgagee, Grantor shall ratify
and confirm any sale by executing and delivering to Trustee , Mortgagee or
the purchaser all instruments requested by Trustee or Mortgagee.
(c) Upon any sale made under this Mortgage, whether made under or by virtue
of the power of sale herein granted, judicial proceedings or a judgment or
decree of foreclosure and sale, Mortgagee (on its behalf or on behalf of the
Secured Parties) and any Secured Party may
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bid for and acquire the Mortgaged Property or any part thereof, and Mortgagee
and any Secured Party in lieu of paying cash therefor may make settlement for
the sales price by crediting against the sales price some or all of the Secured
Indebtedness owing to such Secured Party (or, in the case of Mortgagee, owing to
all Secured Parties) after deducting therefrom the expenses of the sale and the
costs of the action and any other sums which Trustee or Mortgagee is authorized
to deduct.
(d) Any sale made under this Mortgage, whether made under or by virtue of
the power of sale herein granted, judicial proceedings or a judgment or decree
of foreclosure and sale, shall operate to divest all of the estate, right,
title, interest, claim and demand whatsoever, whether at law or in equity, of
Grantor in and to the Mortgaged Property and rights so sold, and shall be a
perpetual bar, both at law and in equity, against Grantor and all Persons who
may at any time claim the same, or any part thereof, from, through or under
Grantor. Grantor hereby expressly waives any right to direct the order in which
the Mortgaged Property shall be sold pursuant hereto.
(e) To the fullest extent permitted by law, Grantor will not at any time
insist upon, plead, or in any manner whatsoever claim, take or insist upon any
benefit or advantage of any stay, extension or moratorium law; any law
pertaining to the marshaling of assets or the administration of estates or
decedents; any exemption from execution or sale (including, but not limited to,
any exemption of homestead); any law providing for valuation or appraisal prior
to any sale pursuant to this Mortgage, or any decree, judgment or order of any
court of competent jurisdiction; any law allowing redemption of Mortgaged
Property sold; or any law, now or at any time hereafter in force, which may
affect the covenants and terms or performance of this Mortgage; and Grantor (for
itself and all who claim under it) hereby expressly waives all benefit or
advantage of such laws, and covenants not to hinder, delay or impede the
execution of any power herein granted or delegated to Trustee or Mortgagee, but
to suffer and permit the execution of every power as though no such laws had
been made or enacted.
(f) Grantor hereby requests that a copy of any Notice of Default and a copy
of any Notice of Sale under this Mortgage be mailed to Grantor at Grantor's
address for Notices as set forth in Section 2 of Article IV.
Section 4. Sale. The Trustee or Mortgagee may, either with or without entry
or taking possession of the Mortgaged Property as provided in this Mortgage or
otherwise, personally or by its agents, and without prejudice to the right to
bring an action for foreclosure of this Mortgage, sell the Mortgaged Property or
any part thereof pursuant to any procedures provided by Applicable Law and all
estate, right, title, interest, claim and demand therein, and right of
redemption thereof, at one or more sales as an entirety or in parcels, and at
such time and place, and upon such terms and after such notice as may be
required or permitted by Applicable Law.
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Section 5. Application of Proceeds; Excess Monies. The proceeds of any sale
made under or by virtue of this Article, whether made under the power of sale
herein granted or under or by virtue of judicial proceedings or of a judgment or
decree of foreclosure and sale, together with any other sums which may then be
held by Trustee or Mortgagee pursuant to this Mortgage, whether under the
provisions of this Article or otherwise, shall be applied in accordance with
Applicable Law, and to the extent not inconsistent, as follows:
(a) first, to Mortgagee for payment of the costs and expenses (including,
without limitation, all reasonable attorneys' fees, expenses and charges through
all appeals) of such sale and of all expenses, liabilities and advances made or
incurred by Trustee or Mortgagee under this Mortgage, and all taxes and
assessments due upon the Mortgaged Property at the time of such sale, except any
taxes or assessments subject to which the Mortgaged Property shall have been
sold;
(b) second, to the payment of whatever may then remain unpaid on account of
the Secured Indebtedness with interest thereon from the date such sums were
required to be paid in accordance with the terms of the Credit Agreement, the
Fundamental Documents or other documents related to any Secured Indebtedness;
and,
(c) the balance to whomsoever may be lawfully entitled to receive the same.
Section 6. Deficiency Decree. If, at any foreclosure proceeding, the
Mortgaged Property shall be sold for a sum less than the total amount of
indebtedness for which judgment is therein given, the judgment creditor shall be
entitled to the entry of a deficiency decree against Grantor and against the
property of Grantor for the amount of such deficiency; and Grantor does hereby
irrevocably consent to the appointment of a receiver for the Mortgaged Property
and the property of Grantor and of the Rents thereof after such sale and until
such deficiency decree is satisfied in full.
Section 7. Appointment of Receiver. The Trustee or Mortgagee may have a
receiver of the Rents of the Mortgaged Property appointed without the necessity
of proving either the depreciation or the inadequacy of the value of the
security or the insolvency of the Grantor or any person who may be legally or
equitably liable to pay monies secured hereby, and the Grantor and each such
person waive such proof and consent to the appointment of a receiver.
Section 8. Waivers of Right. Along with any and all agreements, waivers and
relinquishments made by Grantor under this Mortgage and the other Fundamental
Documents, Grantor waives (i) the benefit of all Applicable Laws now existing or
that hereafter may be enacted providing for any appraisement before sale of any
portion of the Mortgaged Property; and (ii) the benefit of all Applicable Laws
that may be hereafter enacted in any way extending the time for enforcing
collection of the Secured Indebtedness, or creating or extending a period of
redemption from any sale made in collecting the Secured Indebtedness. Grantor
acknowledges and agrees that the Real Property Assets are located in more than
one State and therefor Grantor
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waives and relinquishes any and all rights it may have, whether at law or
equity, to require Trustee or Mortgagee to proceed to enforce or exercise any
rights, powers and remedies they may have in any particular manner, in any
particular order, or in any particular State or other jurisdiction. Grantor
further agrees that any particular proceeding, including without limitation
foreclosure through court action (in a state or federal court) or power of sale,
may be brought and prosecuted in the local or federal courts of any one or more
States as to all or any part of the Real Property, wherever located, without
regard to the fact that any one or more prior or contemporaneous proceedings
have been situated elsewhere with respect to any other part of the Real
Property. To the fullest extent that Grantor may do so, Grantor agrees that
Grantor will not at any time insist upon, plead, claim or take the benefit or
advantage of any law now or hereafter in force providing for any redemption,
valuation, appraisement, stay of execution or extension, and Grantor, for
Grantor, Grantors' heirs, devisees, representatives, successors and assigns, and
for any and all persons ever claiming any interest in the Mortgaged Property, to
the extent permitted by law, hereby waives and releases all rights of
redemption, valuation, appraisement, marshaling, stay of execution, extension,
and notice of election to mature or declare due the whole of the Secured
Indebtedness in the event of foreclosure of the liens hereby created. Grantor
further agrees that if any law referred to in this Section and now in force, of
which Grantor, Grantor's heirs, devisees, representatives, successors and
assigns or other person might take advantage despite this Section, shall
hereafter be repealed or cease to be in force, such law shall not thereafter be
deemed to preclude the application of this Section. Grantor expressly waives and
relinquishes any and all rights and remedies that Grantor may have or be able to
assert by reason of the laws of the State of jurisdiction pertaining to the
rights and remedies of sureties. Grantor makes these agreements, waivers and
relinquishments knowingly after consulting with and considering the advice of
independent legal counsel selected by Grantor.
Section 9. Other Remedies. In an Event of Default, the Trustee or Mortgagee
may also exercise any and all remedies available to it in law or in equity or in
the Credit Agreement or in the other Fundamental Documents or otherwise without
regard as to any particular order of remedy exercised. Without limiting the
foregoing, Trustee or Mortgagee shall be entitled to enforce payment and
performance of the Secured Indebtedness or the Obligations and to exercise all
rights and powers under this Mortgage or under any Fundamental Document or other
agreement or any laws now or hereafter in force, notwithstanding that some or
all of the Secured Indebtedness and the Obligations may now or hereafter be
otherwise secured, whether by mortgage, deed of trust, pledge, lien, assignment
or otherwise. Neither the acceptance of this Mortgage nor its enforcement,
whether by court action or pursuant to the power of sale or other powers herein
contained, shall prejudice or in any manner affect Trustee's or Mortgagee's
right to realize upon or enforce any other security now or hereafter held by
Trustee or Mortgagee, it being agreed that Trustee and Mortgagee, and each of
them, shall be entitled to enforce this Mortgage and any other security now or
hereafter held by Trustee or Mortgagee in such order and manner as they or
either of them may in their absolute discretion determine. No right or remedy
herein conferred upon or reserved to Trustee or Mortgagee is intended to be
exclusive of any other remedy herein or by law provided or permitted, but each
shall be cumulative and shall be in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in
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equity or by statute. Every power or remedy given by any of the Fundamental
Documents to Trustee or Mortgagee, or to which Trustee or Mortgagee may be
otherwise entitled, may be exercised concurrently or independently, from time to
time and as often as may be deemed expedient by Trustee or Mortgagee and either
of them may pursue inconsistent remedies.
Section 10. Multisite Collateral. If (a) the Real Property shall consist of
one or more parcels, whether or not contiguous and whether or not located in the
same county or city, or (b) in addition to this Mortgage, Trustee or Mortgagee
shall now or hereafter hold or be the mortgagee or beneficiary of one or more
additional mortgages, liens, deeds of trust or other security (directly or
indirectly) securing the Secured Indebtedness upon other property in the State
in which the Real Property is located (whether or not such property is owned by
Grantor or by others) or (c) both the circumstances described in clauses (a) and
(b) shall be true, then to the fullest extent permitted by law, Trustee or
Mortgagee may, at its election, commence or consolidate in a single trustee's
sale or foreclosure action all trustee's sale or foreclosure proceedings against
all such collateral securing the Secured Indebtedness (including the Mortgaged
Property), which action may be brought or consolidated in the courts of, or sale
conducted in, any county or city in which any of such collateral is located.
Grantor acknowledges that the right to maintain a consolidated trustee's sale or
foreclosure action is a specific inducement to Mortgagee to extend the Secured
Indebtedness, and Grantor expressly and irrevocably waives any objections to the
commencement or consolidation of the foreclosure proceedings in a single action
and any objections to the laying of venue or based on the grounds of forum non
conveniens which it may now or hereafter have. Grantor further agrees that if
Trustee or Mortgagee shall be prosecuting one or more foreclosure or other
proceedings against a portion of the Mortgaged Property or against any
collateral other than the Mortgaged Property, which collateral directly or
indirectly secures the Secured Indebtedness, or if Trustee or Mortgagee shall
have obtained a judgment of foreclosure and sale or similar judgment against
such collateral (or, in the case of a trustee's sale, shall have met the
statutory requirements therefor with respect to such collateral), then, whether
or not such proceedings are being maintained or judgments were obtained in or
outside the State in which the Real Property is located, Trustee or Mortgagee
may commence or continue any trustee's sale or foreclosure proceedings and
exercise its other remedies granted in this Mortgage against all or any part of
the Mortgaged Property and Grantor waives any objections to the commencement or
continuation of a foreclosure of this Mortgage or exercise of any other remedies
hereunder based on such other proceedings or judgments, and waives any right to
seek to dismiss, stay, remove, transfer or consolidate either any action under
this Mortgage or such other proceedings on such basis. The commencement or
continuation of proceedings to sell the Mortgaged Property in a trustee's sale,
to foreclose this Mortgage or the exercise of any other rights hereunder or the
recovery of any judgment by Trustee or Mortgagee or the occurrence of any sale
by the Trustee or Mortgagee in any such proceedings shall not prejudice, limit
or preclude Trustee's or Mortgagee's right to commence or continue one or more
trustee's sales, foreclosure or other proceedings or obtain a judgment against
(or, in the case of a trustee's sale, to meet the statutory requirements for any
such sale of) any other collateral (either in or outside the State in which the
Real Property is located) which directly or indirectly secures the Secured
Indebtedness, and Grantor expressly
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waives any objections to the commencement of, continuation of, or entry of a
judgment in such other sales or proceedings or exercise of any remedies in such
sales or proceedings based upon any action or judgment connected to this
Mortgage, and Grantor also waives any right to seek to dismiss, stay, remove,
transfer or consolidate either such other sales or proceedings or any sale or
action under this Mortgage on such basis. It is expressly understood and agreed
that, to the fullest extent permitted by law, Trustee or Mortgagee may, at its
election, cause the sale of all collateral which is the subject of a single
trustee's sale or foreclosure action at either a single sale or at multiple
sales conducted simultaneously and take such other measures as are appropriate
in order to effect the agreement of the parties to dispose of and administer all
collateral securing the Secured Indebtedness (directly or indirectly) in the
most economical and least time-consuming manner.
Section 11. JURY WAIVER. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW,
WHICH CANNOT BE WAIVED, IT IS MUTUALLY AGREED BY AND BETWEEN GRANTOR, TRUSTEE
AND MORTGAGEE THAT THE RESPECTIVE PARTIES WAIVE TRIAL BY JURY IN ANY ACTION,
CLAIM, SUIT, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES AGAINST
THE OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH
THIS MORTGAGE AND/OR THE CONDUCT OF THE RELATIONSHIP BETWEEN GRANTOR, TRUSTEE
AND MORTGAGEE.
Section 12. Service of Process. In the event the Trustee or Mortgagee
brings any action or commences any proceeding to enforce the provisions of this
Mortgage, service of copies of the summons and complaint and any other process
which may be served in any such action or proceeding may be made in accordance
with Section 13.13 of the Credit Agreement. Nothing in this Section shall affect
the right of the Trustee or Mortgagee to serve legal process in any other manner
permitted by law.
Section 13. Invalidity of Certain Provisions. If the lien of this Mortgage
is invalid or unenforceable as to any part of the Secured Indebtedness, or if
the lien is invalid or unenforceable as to any part of the Mortgaged Property,
the unsecured or partially secured portion of the Secured Indebtedness shall be
completely paid prior to the payment of the remaining and secured or partially
secured portion of the Secured Indebtedness, and all payments made on the
Secured Indebtedness, whether voluntary or under foreclosure or other
enforcement action or procedure, shall be considered to have been first paid on
and applied to the full payment of that portion of the Secured Indebtedness that
is not secured or fully secured by the lien of this Mortgaged Property.
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ARTICLE IV
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MISCELLANEOUS
Section 1. Cumulative Rights. The rights and remedies herein expressed to
be vested in or conferred upon the Trustee and Mortgagee shall be cumulative and
shall be in addition to and not in substitution for or in derogation of the
rights and remedies conferred by any Applicable Law. The failure, at any one or
more times, of the Trustee or Mortgagee to assert the right to declare the
Secured Indebtedness due or the granting of any extension or extensions of time
of payment of the Secured Indebtedness either to the maker or to any other
person, or taking of other or additional security for the payment thereof, or
releasing any security, or changing any of the terms of this Mortgage, the
Credit Agreement, the other Fundamental Documents or other obligations
accompanying this Mortgage, or waiver of or failure to exercise any right under
any covenant or stipulation herein contained shall not in any way affect this
Mortgage nor the rights of the Trustee or Mortgagee hereunder, nor operate as a
release from any personal liability upon the Credit Agreement and the other
Fundamental Documents or obligation accompanying this Mortgage, nor under any
covenant or stipulation therein contained, nor under any agreement assuming the
payment of said obligation.
Section 2. Notices. Notices and other communications provided for herein
shall be in writing and shall be delivered or mailed (or if by facsimile
communications equipment, delivered by such equipment) addressed, (a) if to the
Mortgagee, to it at 901 Main Street, 66th floor, TX1-492-66-01, Dallas, TX
75202, Attn: Jay Wampler, Facsimile No.: 214-209-3533 with a copy to Bank of
America, N.A., 101 North Tryon, Charlotte, NC 28255, NC1-001-1504, Attn: Credit
Services, Facsimile No.: 704-409-0023, with a courtesy copy to Morgan, Lewis &
Bockius LLP, 101 Park Avenue, New York, NY 10178, Attn: Margot B. Schonholtz,
Esq., Facsimile No.: 212-309-6273, or (b) if to Grantor, to it at 4360
Brownsboro Road, Suite 115, Louisville, Kentucky 40207-1642, Attn: General
Counsel, Facsimile No.: 502-357-9001, with a courtesy copy to Maurice M.
Lefkort, Esq., Willkie Farr & Gallagher, 787 Seventh Avenue, New York, NY
10019-6099, Facsimile No.: 212-728-8111, or (c) such other address as such party
may from time to time designate by giving written notice to the other parties
hereunder. Any failure of any Person giving notice pursuant to this Section to
provide a courtesy copy to a party as provided herein shall not affect the
validity of such notice. All notices and other communications given to any party
hereto in accordance with the provisions of this Mortgage shall be deemed to
have been given (x) on the date of receipt, when sent by registered or certified
mail, postage prepaid, return receipt requested, if by mail, (y) when delivered,
if delivered by hand or overnight courier service or (z) when receipt is
acknowledged, if by facsimile communications equipment, in each case addressed
to such party as provided in this Section or in accordance with the latest
unrevoked written direction from such party. No notice to or demand on Grantor
shall entitle Grantor to any other or further notice or demand in the same,
similar or other circumstances.
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Section 3. Trustee. (a) Trustee, by its acceptance hereof, covenants
faithfully to perform and fulfill the trusts herein created, being liable,
however, only for gross negligence or willful misconduct, and hereby waives any
statutory fee and agrees to accept reasonable compensation in lieu thereof for
any services rendered by it in accordance with the terms hereof.
(b) Grantor shall pay all costs, fees and expenses of Trustee, its agents
and counsel, in connection with the performance of its duties hereunder.
(c) Trustee may resign at any time upon giving thirty (30) days' notice in
writing to Grantor and to Mortgagee.
(d) In the event of Trustee's death, removal, resignation, refusal to act,
or inability to act or, in the sole discretion of Mortgagee for any reason
whatsoever, Mortgagee may, at any time or from time to time without notice and
without specifying any reason therefor and without applying to any court, select
and appoint a successor Trustee by written instrument duly recorded in the
county where the Mortgaged Property is located. All powers, rights, duties and
authority of Trustee shall immediately become vested in any successor so
appointed without conveyance from the predecessor Trustee. No substitute Trustee
shall be required to give bond for the performance of his duties unless required
by Mortgagee. The appointment may be executed by Mortgagee or any authorized
agent of Mortgagee and shall be conclusively presumed to have been executed with
authority and shall be valid and sufficient without proof of any action by the
Board of Directors or any superior officer of Mortgagee. Grantor hereby ratifies
and confirms any and all acts which the herein named Trustee, or its successor
or successors in this trust, shall do lawfully by virtue hereof. Grantor hereby
agrees on behalf of itself, and its heirs, executors, administrators and
assigns, that the recitals contained in any deed executed in due form by Trustee
or any substitute Trustee, acting under the provisions of this Mortgage, shall
be prima facie evidence of the facts recited, and that it shall not be necessary
to prove in any court, other than by such recitals, the existence of any facts
essential to authorize the execution and delivery of any such deed and the
passing of title thereby.
(e) Trustee may act upon any instrument which Trustee in good faith
believes to be genuine and signed by the proper party(s) and Trustee shall not
be liable for any action taken or suffered in reliance thereon.
(f) Upon written request of Mortgagee, Trustee shall reconvey, without
warranty, the Mortgaged Property then held hereunder. The recitals in such
reconveyance of any matters or facts shall be prima facie proof of the
truthfulness thereof. The grantee in such reconveyance may be described as "the
person or persons legally entitled thereto."
Section 4. Successors and Assigns. This Mortgage and all its terms,
covenants, conditions, and provisions are intended and shall be held to be real
covenants running with the Land and shall bind Grantor and Grantor's heirs,
legal representatives, successors, assigns, and any and all subsequent owners,
successors in title, encumbrancers, and tenants of the Real
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Property and shall inure to the benefit of Trustee and Mortgagee and Trustee's
and Mortgagee's successors, assigns and legal representatives and all subsequent
holders of this Mortgage.
Section 5. Gender. When such interpretation is appropriate, any word
denoting gender used herein shall include all persons, natural or artificial,
and words used in the singular shall include the plural.
Section 6. Severability. If any court determines that any provision of this
Mortgage is void or unenforceable, the Mortgage shall remain in effect in
accordance with its terms excluding the provision declared void or
unenforceable, unless Mortgagee (in Mortgagee's exclusive discretion) determines
that the entire Mortgage should be terminated. Whenever possible, each provision
of this Mortgage shall be interpreted in such manner as to be effective and
valid under Applicable Law, but if any provision of this Mortgage shall be
prohibited by or invalid under Applicable Law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remaining provisions of this Mortgage.
Section 7. Amendment. This Mortgage may not be changed or terminated, or
any term or provision thereof waived or discharged, except in writing signed by
the party against whom such change, termination, waiver or discharge is sought.
Schedules "A" and "B" and the Rider annexed hereto are made a part of this
Mortgage as though fully set forth herein.
SECTION 8. GOVERNING LAW. THIS MORTGAGE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE IN WHICH THE REAL PROPERTY IS
LOCATED.
Section 9. Limitation of Interest. It is the intent of Grantor, Trustee and
Mortgagee in the execution of this Mortgage and all other Fundamental Documents
to contract in strict compliance with the usury laws governing the Secured
Indebtedness evidenced by the Credit Agreement and the other Fundamental
Documents. In furtherance thereof, Grantor, Trustee and Mortgagee stipulate and
agree that none of the terms and provisions contained in the Fundamental
Documents shall ever be construed to create a contract for the use, forbearance
or detention of money requiring payment of interest at a rate in excess of the
maximum interest rate permitted to be charged by the laws governing the Loan
evidenced by the Credit Agreement and the other Fundamental Documents. Grantor
or any Guarantor, endorser or other party now or hereafter becoming liable for
the payment of the Secured Indebtedness shall never be required to pay interest
on the Secured Indebtedness at a rate in excess of the maximum interest that may
be lawfully charged under the laws governing the Loans evidenced by the Credit
Agreement and the other Fundamental Documents, and the provisions of this
Section shall control over all other provisions of the Credit Agreement and the
other Fundamental Documents and any other instrument executed in connection
herewith which may be in apparent conflict herewith. In the event any holder of
the Secured Indebtedness shall collect monies that are deemed to constitute
interest and that would otherwise increase the effective interest rate on the
Secured Indebtedness to a rate in excess of that permitted to be charged by the
laws governing the Loan evidenced by
-29-
<PAGE>
the Credit Agreement and the other Fundamental Documents, all such sums deemed
to constitute interest in excess of the legal rate shall be applied to the
unpaid principal balance of the Secured Indebtedness and, if in excess of such
balance, shall be immediately returned to Grantor upon such determination.
Section 10. Conflict. In case of any conflict or inconsistency between any
provision of this Mortgage and the Credit Agreement, the provisions of the
Credit Agreement shall control.
[Signature page follows on the next page.]
-30-
<PAGE>
THE GRANTOR HEREBY DECLARES THAT THE GRANTOR HAS READ THIS MORTGAGE, HAS
SIGNED THIS MORTGAGE AS OF THE DATE AT THE TOP OF THE FIRST PAGE AND THE GRANTOR
ACKNOWLEDGES THAT IT HAS RECEIVED A TRUE AND COMPLETE COPY OF THIS MORTGAGE.
IN WITNESS WHEREOF, the Grantor has duly caused this Mortgage to be duly
executed and delivered as of the day and year first above written.
Attest: VENTAS REALTY, LIMITED PARTNERSHIP,
a Delaware Limited Partnership
/s/ John C. Thompson By: VENTAS, INC., a Delaware
- -------------------------------- corporation, General Partner
John C. Thompson, Vice President
[CORPORATE SEAL]
Signed and Acknowledged in By: /s/ T. Richard Riney
the Presence of: ------------------------------
T. Richard Riney, Executive Vice
President, General Counsel and
/s/ Dean Zucchero Secretary
- --------------------------------
Dean Zucchero Address: 4360 Brownsboro Road,
Suite 115, Jefferson County,
/s/ Camille Inocelda Louisville, Kentucky 40207-1642
- ---------------------------------
Camille Inocelda
This instrument was prepared by
and recorded counterparts should
be returned to:
Mario J. Suarez, Esq.
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, NY 10178
-31-
<PAGE>
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
Before me, a Notary Public in and for said County and State, personally
appeared T. Richard Riney, the Vice President of Ventas Inc., a Delaware
corporation, in its capacity, as general partner of Ventas Realty, Limited
Partnership, a Delaware limited partnership, who acknowledged execution of the
foregoing instrument for and on behalf of said corporation, and who, having been
duly sworn, stated that the representations therein contained are true.
/s/ Shannon Scott
------------------------------
Notary Public
-32-
<PAGE>
RIDER ANNEXED TO AND FORMING
A PART OF MORTGAGE, DATED AS OF JANUARY 31,2000,
BY AND BETWEEN VENTAS REALTY, LIMITED PARTNERSHIP, GRANTOR AND
BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT, MORTGAGEE
THIS RIDER CONTAINS PROVISIONS APPLICABLE TO THE LAWS AND CUSTOMS OF THE STATE
OF INDIANA WHICH, TO THE EXTENT PROVIDED HEREIN, MODIFY, SUPPLEMENT AND
SUPERSEDE THE MORTGAGE TO WHICH THIS RIDER IS ANNEXED. IF AND TO THE EXTENT THAT
ANY OF THE PROVISIONS OF THIS RIDER CONFLICT WITH, OR ARE OTHERWISE INCONSISTENT
WITH, ANY OF THE PROVISIONS OF THE MORTGAGE, WHETHER OR NOT SUCH INCONSISTENCY
IS EXPRESSLY NOTED IN THIS RIDER, THE PROVISIONS OF THIS RIDER SHALL PREVAIL.
1. Definitions of Terms. Except as herein otherwise expressly provided, all
capitalized terms used herein shall have the same definition as in the Mortgage.
In case of any conflict or inconsistency between any provision of this Rider and
the Credit Agreement, the provisions of the Credit Agreement shall control.
2. The following language shall be added at the second Whereas entitled
"SECURED INDEBTEDNESS" after the phrase "secured by this Mortgage":
", which Secured Obligations, after the date hereof, provide for
loans, letters of credit and other extensions of credit in the maximum
principal amount outstanding at any time of the Mortgage Amount with a
stated maturity date of the Maturity Date."
3. In accordance with IC 32-8-11-9, this Mortgage shall secure all future
modifications, extensions and renewals of the Secured Indebtedness, and any
future advances and obligations made or incurred pursuant to the terms of the
Credit Agreement or under or in respect of any one or more of the other
Fundamental Documents, whether for principal, interest, expenses,
indemnification or otherwise, and the term "Secured Indebtedness" shall include
all such future modifications, extensions, renewals, advances and obligations.
Such future advances to be made in an aggregate outstanding principal amount not
to exceed the Mortgage Amount.
4. In the event Mortgagee commences suit to foreclose the lien of this
Mortgage following the occurrence, and during the continuance, of an Event of
Default, Mortgagor hereby consents to the appointment of a receiver to take
possession of and to operate, maintain, develop and manage the Mortgaged
Property or any part thereof.
-33-
<PAGE>
-34-
<PAGE>
Facility #111
IN
SCHEDULE A
THE LAND
THAT PORTION OF LAND SITUATE IN LOT NUMBER 84 OF THE ILLINOIS GRANT IN FLOYD
COUNTY, INDIANA, NEW ALBANY TOWNSHIP, AND BEING DESCRIBED AS FOLLOWS:
CONSIDERING THE SOUTHEASTERLY LINE OF LOT NUMBER 84 OF THE ILLINOIS GRANT IN
FLOYD COUNTY AS BEARING NORTH 54 DEGREES 35 MINUTES 00 SECONDS EAST WITH ALL
OTHER BEARINGS HEREIN CONTAINED RELATIVE THERETO: BEGINNING AT A FOUND STONE ON
THE SOUTHEASTERLY LINE OF LOT NO. 84 OF THE ILLINOIS GRANT AT THE COMMON CORNERS
OF LOTS NUMBER 62 AND 63 OF THE ILLINOIS GRANT AS ESTABLISHED BY A LEGAL SURVEY
AS RECORDED IN SURVEY RECORD BOOK, PAGES 224 AND 225 IN THE FLOYD COUNTY,
INDIANA SURVEYOR'S OFFICE: THENCE ON AND ALONG THE SOUTHEASTERLY LINE OF LOT
NUMBER 84 AND THE NORTHWESTERLY LINE OF LOT NUMBER 63 54 DEGREES 35 MINUTES 00
SECONDS EAST 2366.30 FEET DEED AND MEASURED TO A FOUND 1 1/8" STEEL BAR ON THE
CENTERLINE OF THE ST. JOSEPH ROAD; THENCE ON AND ALONG SAID CENTERLINE NORTH 29
DEGREES 58 MINUTES 22 SECONDS WEST 957.70 FEET DEED AND MEASURED TO A SET PK
NAIL ON THE SOUTHEASTERLY LINE OF THE LAND DESCRIBED IN DEED DRAWER 11 PAGE
2618; THENCE ON AND ALONG SAID SOUTHEASTERLY LINE SOUTH 60 DEGREES 01 MINUTES 38
SECONDS WEST 30.00 FEET TO A SET REBAR ON THE SOUTHWESTERLY RIGHT OF WAY LINE
FOR ST JOSEPH ROAD BEING THE TRUE PLACE OF BEGINNING; THENCE CONTINUING ON AND
ALONG SAID SOUTHEASTERLY LINE SOUTH 60 DEGREES 01 MINUTES 38 SECONDS WEST 714.50
FEET TO A FOUND REBAR ON THE WESTERLY LINE OF SAID DEED: THENCE ON AND ALONG
SAID WESTERLY LINE NORTH 35 DEGREES 57 MINUTES
12 SECONDS WEST 538.05 FEET DEED AND MEASURED TO A FOUND REBAR ON THE NORTHERLY
LINE OF SAID DEED RECORD; THENCE ON AND ALONG SAID NORTHERLY LINE NORTH 55
DEGREES 38 MINUTES 46 SECONDS EAST 261.77 FEET TO A FOUND REBAR; THENCE
CONTINUING ON AND ALONG SAID NORTHERLY LINE NORTH 56 DEGREES 34 MINUTES 03
SECONDS EAST 510.54 FEET TO A SET REBAR ON THE SOUTHWESTERLY RIGHT-OF-WAY LINE
FOR THE ST. JOSEPH ROAD; THENCE ON AND ALONG SAID LINE SOUTH 29 DEGREES 58
MINUTES 22 SECONDS EAST 585.00 FEET TO THE PLACE OF BEGINNING.
<PAGE>
SCHEDULE "B"
------------
THE LEASES AND GROUND LEASES
----------------------------
Master Lease Agreement General Terms and Conditions dated as of April 30,
1998 between Ventas, Inc. (formerly known as Vencor, Inc.), First Healthcare
Corporation, Nationwide Care, Inc., Northwest, Healthcare, Inc., Hillhaven of
Central Florida, Inc., Hillhaven/Indiana Partnership, St. George Nursing Home
Limited Partnership, Vencor Hospitals East, Inc., Hahnemann Hospital, Inc.,
Vencor Hospitals Illinois, Inc., Carolwood Care Center, Windsor Woods Nursing
Home Partnership, San Marcos Nursing Home Partnership, New Pond Village
Associates, Health Haven Associates, L.P., Oak Hill Nursing Associates, L.P.,
and Ventas Realty, Limited Partnership, as lessors, and Vencor Healthcare, Inc.
and Vencor Operating, Inc., as tenant, as amended, modified, restated, extended,
supplemented, renewed or consolidated from time to time.
<PAGE>
EXHIBIT 10.1.3: SCHEDULE
PURSUANT TO INSTRUCTION 2 TO ITEM 601 OF REGULATION S-K
In addition to the agreements filed as Exhibits 10.1.1 and 10.2.2 to this
filing, Ventas Realty, Limited Partnership1 has executed and delivered:
(I) a Mortgage, Open End Mortgage, Deed of Trust, Trust Deed, Deed to
Secure Debt, Credit Line Deed of Trust, Assignment of Leases and
Rents, Security Agreement and Financing Statement (or similarly titled
document), dated as of January 31, 2000, between Ventas Realty,
Limited Partnership2, Mortgagor/Trustor/Grantor/Debtor, to Bank of
America, N.A., as Administrative Agent,
Mortgagee/Beneficiary/Grantee/Secured Party, and
(II) an Assignment of Leases and Rents, dated as of January 31, 2000, from
Ventas Realty, Limited Partnership3, Assignor, to Bank of America,
N.A., as Administrative Agent, Assignee,
with respect to each of the properties listed in the schedule below. Such
agreements are substantially identical in all material respects with the
respective agreements filed as Exhibit 10.1.1 or 10.1.2 to this filing, as
applicable, except for immaterial differences relating to recording, mortgage
and other similar taxes, notary acknowledgments, attestation requirements,
corporate seal requirements, and other similar items and relating to site or
state-specific legal requirements, remedies and other matters.
<TABLE>
<CAPTION>
- --------------- ----------------------------------------------------------------------------------------------------------------
FACILITY
NO. FACILITY NAME AND ADDRESS
- --------------- ----------------------------------------------------------------------------------------------------------------
<S> <C>
791 Rehab and Healthcare Ctr of Huntsville, 105 Teakwood Drive, Huntsville, Alabama (Madison County)
- --------------- ----------------------------------------------------------------------------------------------------------------
804(4) Rehab & Healthcare Ctr. of Birmingham, 2728 Tenth Avenue South , Birmingham, Alabama 35205
- --------------- ----------------------------------------------------------------------------------------------------------------
824(4) Rehab & Healthcare Ctr. of Mobile, 1758 Spring Hill Avenue, Mobile, Alabama 36607
- --------------- ----------------------------------------------------------------------------------------------------------------
436(4) Valley Healthcare & Rehab Center, 5545 East Lee Street, Tucson, Arizona (Pima County)
- --------------- ----------------------------------------------------------------------------------------------------------------
742 Sonoran Rehab and Care Center, 4202 North 20th Avenue, Phoenix, Arizona (Maricopa County)
- --------------- ----------------------------------------------------------------------------------------------------------------
743 Desert Life Rehab and Care Center, 1919 W. Medical Street, Tucson, Arizona (Pima County)
- --------------- ----------------------------------------------------------------------------------------------------------------
851 Villa Campana Health Center, 6651 East Carondelet Drive, Tucson, Arizona (Pima County)
- --------------- ----------------------------------------------------------------------------------------------------------------
853(4) Kachina Point Health Care and Rehab, 505 Jacks Canyon Road, Sedona, Arizona (Yavapal County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4656 Vencor Hospital-Phoenix, 40 East Indianola Avenue, Phoenix, Arizona (Maricopa County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4658 Vencor Hospital-Tucson, 355 North Wilmot Road, Tucson, Arizona (Pima County)
- --------------- ----------------------------------------------------------------------------------------------------------------
150 Nob Hill Healthcare Center, 1359 Pine Street, San Francisco, California (San Francisco County)
- --------------- ----------------------------------------------------------------------------------------------------------------
167 Canyonwood Nursing & Rehab Ctr., 2120 Benton Drive, Redding, California (Shasta County)
- --------------- ----------------------------------------------------------------------------------------------------------------
210 Californian Care Center, 2211 Mt. Vernon Avenue, Bakersfield, California (Kern County)
- --------------- ----------------------------------------------------------------------------------------------------------------
320 Magnolia Gardens Care Center, 1609 Trousdale Drive, Burlingame, California (San Mateo County)
- --------------- ----------------------------------------------------------------------------------------------------------------
- ----------
1 The Agreements described in clauses (I) and (II) with respect to Facility
nos. 4614 and 4619 were also executed by Ventas, Inc.
2 See footnote 1.
3 See footnote 1.
4 These properties are being held in escrow by Morgan Lewis & Bockius LLP
pending the receipt of third party consents and/or resolution of certain
other matters.
<PAGE>
- --------------- ----------------------------------------------------------------------------------------------------------------
FACILITY
NO. FACILITY NAME AND ADDRESS
- --------------- ----------------------------------------------------------------------------------------------------------------
335 Lawton Healthcare Center, 1575 - 7th Avenue, San Francisco, California (San Francisco County)
- --------------- ----------------------------------------------------------------------------------------------------------------
350 Valley Gardens Healthcare & Rehab, 1517 East Knickerbocker Dr., Stockton, California (San Joaquin County)
- --------------- ----------------------------------------------------------------------------------------------------------------
411 Alta Vista Healthcare Center, 9020 Garfield Avenue, Riverside, California (Riverside County)
- --------------- ----------------------------------------------------------------------------------------------------------------
420 Maywood Acres Healthcare Center, 2641 South C. Street, Oxnard, California (Ventura County)
- --------------- ----------------------------------------------------------------------------------------------------------------
525(4) LaVeta Healthcare Center, 920 West La Veta, Orange, California 92868
- --------------- ----------------------------------------------------------------------------------------------------------------
738 Bay View Nursing and Rehab Center, 516 Willow Street, Alameda, California (Alemada County)
- --------------- ----------------------------------------------------------------------------------------------------------------
982 Village Square Nsg. And Rehab Center, 1586 West San Marcos Blvd., San Marcos, California (San Diego County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4607 Vencor Hospital Ontario, 550 North Monterey Avenue, Ontario, California (San Bernadino County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4622 Vencor Hospital-San Leandro, 2800 Benedict Drive, San Leandro, California (Alameda County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4642 Vencor Hospital Orange County, 200 Hospital Circle, Westminster, California (Orange County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4644 THC-Orange County, 875 North Brea Blvd., Brea, California (Orange County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4648 Vencor Hospital-San Diego, 1940 El Cajon Blvd., San Diego, California (San Diego County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4693 Recovery Inn of Menlo Park , 570 Willow Road, Menlo Park, California (San Mateo County)
- --------------- ----------------------------------------------------------------------------------------------------------------
744 Cherry Hills Health Care Center, 3575 South Washington Street, Englewood, Colorado (Arapahoe County)
- --------------- ----------------------------------------------------------------------------------------------------------------
745 Aurora Care Center, 10201 East Third Avenue, Aurora, Colorado (Arapahoe County)
- --------------- ----------------------------------------------------------------------------------------------------------------
859 Castle Garden Care Center, 401 Malley Drive, Northglenn, Colorado (Adams County)
- --------------- ----------------------------------------------------------------------------------------------------------------
873 Brighton Care Center, 2025 East Egbert Street, Brighton, Colorado (Adams County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4665 Vencor Hospital-Denver, 1920 High Street, Denver, Colorado (Denver County)
- --------------- ----------------------------------------------------------------------------------------------------------------
562 Andrew House Healthcare, 66 Clinic Drive, New Britain, Connecticut (Hartford County)
- --------------- ----------------------------------------------------------------------------------------------------------------
563 Camelot Nursing & Rehab Center, 89 Viets Street, New London, Connecticut (New London County)
- --------------- ----------------------------------------------------------------------------------------------------------------
565 Hamilton Rehab & Healthcare Center, 50 Palmer Street, Norwich, Connecticut (New London County)
- --------------- ----------------------------------------------------------------------------------------------------------------
566 Windsor Rehab & Healthcare Center, 581 Poquonock Avenue, Windsor, Connecticut (Hartford County)
- --------------- ----------------------------------------------------------------------------------------------------------------
567 Nutmeg Pavilion Healthcare, 78 Viets Street Extension, New London, Connecticut (New London County)
- --------------- ----------------------------------------------------------------------------------------------------------------
568 Parkway Pavilion Healthcare, 1157 Enfield Street, Enfield, Connecticut (Hartford County)
- --------------- ----------------------------------------------------------------------------------------------------------------
1221 Courtland Gardens Health Center, 53 Courtland Avenue, Stamford, Connecticut (Fairfield County)
- --------------- ----------------------------------------------------------------------------------------------------------------
1226 Homestead Health Center, 160 Glenbrook Road, Stamford, Connecticut (Fairfield County)
- --------------- ----------------------------------------------------------------------------------------------------------------
117 East Manor Medical Care Center, 1524 East Avenue South, Sarasota, Florida (Sarasota County)
- --------------- ----------------------------------------------------------------------------------------------------------------
124 Healthcare & Rehab Ctr. Of Sanford, 950 Mellonville Avenue, Sanford, Florida (Seminole County)
- --------------- ----------------------------------------------------------------------------------------------------------------
125 Titusville Rehab & Nursing Center, 1705 Jess Parrish Court, Titusville, Florida (Brevard County)
- --------------- ----------------------------------------------------------------------------------------------------------------
245 Bay Pointe Nursing Pavilion, 4201 31st Street South, St. Petersburg, Florida (Pinellas County)
- --------------- ----------------------------------------------------------------------------------------------------------------
268 Colonial Oaks Rehab Ctr.-Ft. Myers, 3250 Winkler Avenue Exten, Ft. Myers, Florida (Lee County)
- --------------- ----------------------------------------------------------------------------------------------------------------
372 Carrollwood Care Center, 15002 Hutchinson Road, Tampa, Florida (Hillsborough County)
- --------------- ----------------------------------------------------------------------------------------------------------------
637 Evergreen Woods Health & Rehab, 7045 Evergreen Woods Tr., Springhill, Florida (Hernando County)
- --------------- ----------------------------------------------------------------------------------------------------------------
836 Rehab and Healthcare Ctr. of Tampa, 4411 North Habana Avenue, Tampa, Florida (Hillsborough County)
- --------------- ----------------------------------------------------------------------------------------------------------------
-2-
<PAGE>
- --------------- ----------------------------------------------------------------------------------------------------------------
FACILITY
NO. FACILITY NAME AND ADDRESS
- --------------- ----------------------------------------------------------------------------------------------------------------
837 Rehab and Health Ctr. of Cape Coral, 2629 Del Prado Blvd., Cape Coral, Florida (Lee County)
- --------------- ----------------------------------------------------------------------------------------------------------------
922 Windsor Woods Convalescent Ctr., 13719 Dallas Drive, Hudson, Florida (Pasco County)
- --------------- ----------------------------------------------------------------------------------------------------------------
1217(4) Casa Mora Rehab & Extended Care, 1902 49th Street West, Bradenton, Florida 34209
- --------------- ----------------------------------------------------------------------------------------------------------------
1218 North Broward Rehab. And Nsg. Ctr., 402 East Sample Road, Pompano Beach, Florida (Broward County)
- --------------- ----------------------------------------------------------------------------------------------------------------
1220 Highland Pines Rehab Center, 111 South Highland Avenue, Clearwater, Florida (Pinellas County)
- --------------- ----------------------------------------------------------------------------------------------------------------
1232 Pompano Rehab/Nursing Ctr., 51 West Sample Road, Pompano Beach, Florida (Broward County)
- --------------- ----------------------------------------------------------------------------------------------------------------
1233 Abbey Rehab and Nsg. Center, 7101 9th Street, North, St. Petersburg, Florida (Pinellas County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4602 Vencor Hospital-Coral Gables, 5190 Southwest 8th Street, Coral Gables, Florida (Dade County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4611 Vencor Hospital-St. Petersburg, 303 Sixth Street, St. Petersburg, Florida (Pinellas County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4645 Vencor Hospital-Fort Lauderdale, 1516 East Las Olas Blvd., Ft. Lauderdale, Florida (Broward County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4652 Vencor Hospital-North Florida, 801 Oak Street, Green Cove Springs, Florida (Clay County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4674 Vencor Hospital-Central Tampa, 4801 North Howard Avenue, Tampa, Florida (Hillsborough County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4676 Vencor Hospital-Hollywood, 1859 Van Buren Street, Hollywood, Florida (Broward County)
- --------------- ----------------------------------------------------------------------------------------------------------------
155 Savannah Rehab & Nursing Center, 815 East 63rd Street, Savannah, Georgia (Chatham County)
- --------------- ----------------------------------------------------------------------------------------------------------------
645 Specialty Care of Marietta, 26 Tower Road, Marietta, Georgia (Cobb County)
- --------------- ----------------------------------------------------------------------------------------------------------------
660 Savannah Specialty Care Center, 11800 Abercorn Street, Savannah, Georgia (Chatham County)
- --------------- ----------------------------------------------------------------------------------------------------------------
1228 Lafayette Nursing and Rehab Ctr., 110 Brandywine Blvd., Fayetteville, Georgia (Fayette County)
- --------------- ----------------------------------------------------------------------------------------------------------------
1238 Tucker Nursing Center, 2165 Idlewood Road, Tucker, Georgia (Dekalb County)
- --------------- ----------------------------------------------------------------------------------------------------------------
216 Hillcrest Rehabilitation Care Center, 1001 S. Hilton, Boise, Idaho (Ada County)
- --------------- ----------------------------------------------------------------------------------------------------------------
218 Cascade Care Center, 2814 S. Indiana Avenue South, Caldwell, Idaho (Canyon County)
- --------------- ----------------------------------------------------------------------------------------------------------------
219 Emmett Rehabilitation and Healthcare, 714 North Butte Avenue, Emmett, Idaho (Gem County)
- --------------- ----------------------------------------------------------------------------------------------------------------
221 Lewiston Rehabilitation and Care Center, 3315 8th Street, Lewiston, Idaho (Ney Perce County)
- --------------- ----------------------------------------------------------------------------------------------------------------
222 Nampa Care Center, 404 Horton, Nampa, Idaho (Boise County)
- --------------- ----------------------------------------------------------------------------------------------------------------
223 Weiser Rehabilitation and Care Center, 331 East Park, Weiser, Idaho (Washington County)
- --------------- ----------------------------------------------------------------------------------------------------------------
225 Moscow Care Center, 420 Rowe Road, Moscow, Idaho (Latah County)
- --------------- ----------------------------------------------------------------------------------------------------------------
409 Mountain Valley Care & Rehabilitation, 601 West Cameron Avenue, Kellogg, Idaho (Shoshone County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4615 Vencor Hospital-Sycamore, 225 Edward Street, Sycamore, Illinois (De Kalb County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4637 Vencor Hospital-Chicago North, 2544 West Montrose Avenue, Chicago, Illinois (Cook County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4671 Vencor Hospital-Lakeshore, 6130 North Sheridan Road, Chicago, Illinois (Cook County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4690 Vencor Hospital-Northlake, 365 East North Avenue, Northlake, Illinois (Cook County)
- --------------- ----------------------------------------------------------------------------------------------------------------
112 Royal Oaks Healthcare & Rehab Ctr., 3500 Maple Avenue, Terre Haute, Indiana (Vigo County)
- --------------- ----------------------------------------------------------------------------------------------------------------
113 Southwood Health & Rehab Ctr., 2222 Margaret Road, Terre Haute, Indiana (Vigo County)
- --------------- ----------------------------------------------------------------------------------------------------------------
131 Vencor Corydon Nursing Center, 150 Beechmont Drive, Corydon, Indiana 47112
- --------------- ----------------------------------------------------------------------------------------------------------------
209 Valley View Health Care Center, 333 West Mishawaka Road, Elkhart, Indiana (Elkart County)
- --------------- ----------------------------------------------------------------------------------------------------------------
-3-
<PAGE>
- --------------- ----------------------------------------------------------------------------------------------------------------
FACILITY
NO. FACILITY NAME AND ADDRESS
- --------------- ----------------------------------------------------------------------------------------------------------------
213 Wildwood Healthcare Center, 7301 East 16th Street, Indianapolis, Indiana (Marion County)
- --------------- ----------------------------------------------------------------------------------------------------------------
269 Meadowvale Health & Rehab Center, 1529 West Lancaster Street, Bluffton, Indiana (Wells County)
- --------------- ----------------------------------------------------------------------------------------------------------------
286 Columbia Healthcare Facility, 621 West Columbia Street, Evansville, Indiana (Vanderburgh County)
- --------------- ----------------------------------------------------------------------------------------------------------------
290 Bremen Health Care Center, 316 Woodies Lane, Bremen, Indiana (Marshall County)
- --------------- ----------------------------------------------------------------------------------------------------------------
294 Windsor Estates Health & Rehab Ctr, 429 West Lincoln Road, Kokomo, Indiana (Howard County)
- --------------- ----------------------------------------------------------------------------------------------------------------
406 Muncie Health Care & Rehab, 4301 North Walnut, Muncie, Indiana (Delaware County)
- --------------- ----------------------------------------------------------------------------------------------------------------
407 Parkwood Health Care Center, 1001 North Grant Street, Lebanon, Indiana (Boone County)
- --------------- ----------------------------------------------------------------------------------------------------------------
694 Wedgewood Healthcare Center, 101 Potters Lane, Clarksville, Indiana (Clark County)
- --------------- ----------------------------------------------------------------------------------------------------------------
779 Westview Nursing and Rehab Center, 1510 Clinic Drive, Bedford, Indiana (Lawrence County)
- --------------- ----------------------------------------------------------------------------------------------------------------
780 Columbus Health and Rehab Center, 2100 Midway, Columbus, Indiana (Bartholomew County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4620 Vencor Hospital-LaGrange, 207 North Towline Road, LaGrange, Indiana (LaGrange County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4638 Vencor Hospital-Indianapolis, 1700 West 10th Street, Indianapolis, Indiana (Marion County)
- --------------- ----------------------------------------------------------------------------------------------------------------
277 Rosewood Health Care Center, 550 High Street, Bowling Green, Kentucky (Warren County)
- --------------- ----------------------------------------------------------------------------------------------------------------
278 Oakview Nursing & Rehab Center, 10456 U.S. Hwy. 62, Calvert City, Kentucky (Marshall County)
- --------------- ----------------------------------------------------------------------------------------------------------------
279 Cedars of Lebanon Nursing Center, 337 South Harrison Street, Lebanon, Kentucky (Marion County)
- --------------- ----------------------------------------------------------------------------------------------------------------
280 Winchester Centre for Health/Rehab., 200 Glenway Road, Winchester, Kentucky (Clark County)
- --------------- ----------------------------------------------------------------------------------------------------------------
281 Riverside Manor Health Care, Hwy. 136 - Box 39, Calhoun, Kentucky (McLean County)
- --------------- ----------------------------------------------------------------------------------------------------------------
282 Maple Manor Healthcare Center, 515 Greene Drive, Greenville, Kentucky (Muhlenberg County)
- --------------- ----------------------------------------------------------------------------------------------------------------
782 Danville Centre for Health and Rehab, 642 North 3rd Street, Danville, Kentucky (Boyle County)
- --------------- ----------------------------------------------------------------------------------------------------------------
783 Lexington Centre for Health and Rehabilitation, 353 Waller Avenue, Lexington, Kentucky (Fayette County)
- --------------- ----------------------------------------------------------------------------------------------------------------
784 North Centre for Health and Rehab, 6000 Hunting Road, Louisville, Kentucky (Jefferson County)
- --------------- ----------------------------------------------------------------------------------------------------------------
785 Hillcrest Health Care Center, 3740 Old Hartford Road, Owensboro, Kentucky (Daviess County)
- --------------- ----------------------------------------------------------------------------------------------------------------
787 Woodland Terrace Health Care Facility, 1117 Woodland Drive, Elizabethtown, Kentucky (Hardin County)
- --------------- ----------------------------------------------------------------------------------------------------------------
864 Harrodsburg Health Care Center, 853 Lexington Road, Harrodsburg, Kentucky (Mercer County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4633 Vencor Hospital-Louisville, 1313 St. Anthony Place, Louisville, Kentucky (Jefferson County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4666 Vencor Hospital-New Orleans, 3601 Coliseum Street, New Orleans, Louisiana
- --------------- ----------------------------------------------------------------------------------------------------------------
327 Laurel Ridge Rehab & Nursing Center, 174 Forrest Hill Street, Jamaica Plain, Massachusetts (W. Roxbury County)
- --------------- ----------------------------------------------------------------------------------------------------------------
501 Blue Hills Alzheimer's Care Center, 1044 Park Street, Stoughton, Massachusetts (Stoughton County)
- --------------- ----------------------------------------------------------------------------------------------------------------
503 Brigham Manor Nursing & Rehab Center, 77 High Street, Newburyport, Massachusetts (Suffolk County)
- --------------- ----------------------------------------------------------------------------------------------------------------
506 Presentation Nursing & Rehab Center, 10 Bellamy Street, Brighton, Massachusetts (Suffolk County)
- --------------- ----------------------------------------------------------------------------------------------------------------
507 Country Manor Rehab & Nsg Center, 180 Low Street, Newburyport, Massachusetts (Essex County)
- --------------- ----------------------------------------------------------------------------------------------------------------
508 Crawford Skilled Nsg. & Rehab. Ctr., 273 Oak Grove Avenue, Fall River, Massachusetts (Bristol County)
- --------------- ----------------------------------------------------------------------------------------------------------------
513 Hallmark Nursing & Rehab Center, 1123 Rockdale Avenue, New Bedford, Massachusetts (Bristol County)
- --------------- ----------------------------------------------------------------------------------------------------------------
514 Sachem Skilled Nursing & Rehab Ctr., 66 Central Street, East Bridgewater, Massachusetts (Plymouth County)
- --------------- ----------------------------------------------------------------------------------------------------------------
-4-
<PAGE>
- --------------- ----------------------------------------------------------------------------------------------------------------
FACILITY
NO. FACILITY NAME AND ADDRESS
- --------------- ----------------------------------------------------------------------------------------------------------------
516 Hammersmith House Nsg. Care Ctr., 73 Chestnut Street, Saugus, Massachusetts (Essex County)
- --------------- ----------------------------------------------------------------------------------------------------------------
517 Oakwood Rehab & Nursing Center, 11 Pontiac Avenue, Webster, Massachusetts (Worcester County)
- --------------- ----------------------------------------------------------------------------------------------------------------
518 Timberlyn Heights Nsg. & Alz. Ctr., 320 Maple Avenue, Great Barrington, Massachusetts (Berkshire County)
- --------------- ----------------------------------------------------------------------------------------------------------------
523 Star of David Nursing & Rehab/Alz. Ctr., 1100 VFW Parkway, West Roxbury, Massachusetts (Suffolk County)
- --------------- ----------------------------------------------------------------------------------------------------------------
526 Brittany Healthcare Center, 168 West Central Street, Natick, Massachusetts (Middlesex County)
- --------------- ----------------------------------------------------------------------------------------------------------------
527 Briarwood Health Care Nursing Center, 150 Lincoln Street, Needham, Massachusetts (Norfolk County)
- --------------- ----------------------------------------------------------------------------------------------------------------
528 Westridge Healthcare Center, 121 Northboro Road, Marlborough, Massachusetts (Middlesex County)
- --------------- ----------------------------------------------------------------------------------------------------------------
529 Bolton Manor Nursing Home, 400 Bolton Street, Marlborough, Massachusetts (Middlesex County)
- --------------- ----------------------------------------------------------------------------------------------------------------
532 Hillcrest Nursing Home, 94 Summer Street, Fitchburg, Massachusetts (Worcester County)
- --------------- ----------------------------------------------------------------------------------------------------------------
534 Country Gardens Skilled Nursing & Rehab Center, 2045 Grand Army Highway, Swansea, Massachusetts (Essex County)
- --------------- ----------------------------------------------------------------------------------------------------------------
537 Quincy Rehab. & Nursing Center, 11 McGrath Highway, Quincy, Massachusetts (Norfolk County)
- --------------- ----------------------------------------------------------------------------------------------------------------
538 West Roxbury Manor, 5060 Washington Street, West Roxbury, Massachusetts (Suffolk County)
- --------------- ----------------------------------------------------------------------------------------------------------------
539 Newton & Wellesley Alzheimer Ctr., 694 Worcester Street, Wellesley, Massachusetts (Norfolk County)
- --------------- ----------------------------------------------------------------------------------------------------------------
542(4) Den-Mar Rehab & Nursing Center, 44 South Street, Rockport, Massachusetts 01966
- --------------- ----------------------------------------------------------------------------------------------------------------
573 Eagle Pond Rehabilitation and Living Center, One Love Lane, South Dennis, Massachusetts (Barnstable County)
- --------------- ----------------------------------------------------------------------------------------------------------------
581 Blueberry Hill Healthcare, 75 Brimbal Avenue, Beverly, Massachusetts (Essex County)
- --------------- ----------------------------------------------------------------------------------------------------------------
582 Colony House Nsg. & Rehab Ctr., 277 Washington Street, Abington, Massachusetts (Plymouth County)
- --------------- ----------------------------------------------------------------------------------------------------------------
583 Embassy House Skilled Nursing & Rehab Center, 2 Beaumont Avenue, Brockton, Massachusetts (Plymouth County)
- --------------- ----------------------------------------------------------------------------------------------------------------
584 Franklin Sk. Nsg. & Rehab Center, 130 Chestnut Street, Franklin, Massachusetts (Franklin County)
- --------------- ----------------------------------------------------------------------------------------------------------------
585 Great Barrington Rehab & Nsg. Center, 148 Maple Avenue, Great Barrington, Massachusetts (Berkshire County)
- --------------- ----------------------------------------------------------------------------------------------------------------
587 River Terrace, 1675 Main Street, Lancaster, Massachusetts (Worcester County)
- --------------- ----------------------------------------------------------------------------------------------------------------
588 Walden Rehab & Nursing Center, 785 Main Street, Concord, Massachusetts (Middlesex County)
- --------------- ----------------------------------------------------------------------------------------------------------------
985(4) Harrington House Nsg. And Rehab. Ctr., 160 Main Street, Walpole, Massachusetts (Norfolk County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4673 Vencor Hospital-Boston Northshore, 15 King Street, Peabody, Massachusetts (Essex County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4688 Vencor Hospital-Boston, 1515 Commonwealth Avenue, Boston, Massachusetts
- --------------- ----------------------------------------------------------------------------------------------------------------
544 Augusta Rehabilitation Center, 187 Eastern Avenue, Augusta, Maine (Kennebec County)
- --------------- ----------------------------------------------------------------------------------------------------------------
545 Eastside Rehab and Living Center, 516 Mount Hope Avenue, Bangor, Maine (Penobscot County)
- --------------- ----------------------------------------------------------------------------------------------------------------
546 Winship Green Nursing Center, 51 Winship Street, Bath, Maine (Sagadahoc County)
- --------------- ----------------------------------------------------------------------------------------------------------------
547 Brewer Rehabilitation & Living Center, 74 Parkway South, Brewer, Maine (Penobscot County)
- --------------- ----------------------------------------------------------------------------------------------------------------
549 Kennebunk Nursing Center, 158 Ross road, Kennebunk, Maine (York County)
- --------------- ----------------------------------------------------------------------------------------------------------------
550 Norway Rehabilitation & Living Ctr., 24 Marion Avenue, Norway, Maine (Oxford County)
- --------------- ----------------------------------------------------------------------------------------------------------------
552 Shore Village Rehab & Nursing Center, 201 Camden Avenue, Rockland, Maine (Knox County)
- --------------- ----------------------------------------------------------------------------------------------------------------
-5-
<PAGE>
- --------------- ----------------------------------------------------------------------------------------------------------------
FACILITY
NO. FACILITY NAME AND ADDRESS
- --------------- ----------------------------------------------------------------------------------------------------------------
554 Westgate Manor, 750 Union Street, Bangor, Maine (Penobscot County)
- --------------- ----------------------------------------------------------------------------------------------------------------
555 Brentwood Rehab & Nsg. Center, 122 Portland Street, Yarmouth, Maine (Penobscot County)
- --------------- ----------------------------------------------------------------------------------------------------------------
558 Fieldcrest Manor Nursing Home, 126 Depot Street, Waldoboro, Maine (Lincoln County)
- --------------- ----------------------------------------------------------------------------------------------------------------
3302 Birchwood Care Center, 15140 16th Avenue, Mame, Michigan (Ottawa County)
- --------------- ----------------------------------------------------------------------------------------------------------------
3695 Grayling Health Care Center, 331 Meadows Drive, Grayling, Michigan 49738-2005 (Crawford County)
- --------------- ----------------------------------------------------------------------------------------------------------------
3777 Clara Barton Terrace, 1801 E. Atherton Road, Flint, Michigan (Genesee County)
- --------------- ----------------------------------------------------------------------------------------------------------------
3778 Mary Avenue Care Center, 1313 Mary Avenue, Lansing, Michigan 48910 (Ingham County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4675 Vencor Hospital-Detroit, 26400 West Outer Drive, Lincoln Park, Michigan (Wayne County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4677 Vencor Hospital-Metro Detroit, 700 MLK Jr. Blvd., Detroit, Michigan (Wayne County)
- --------------- ----------------------------------------------------------------------------------------------------------------
3764 Bear Creek Care & Rehabilitation Center (formerly known as Woodside Convalescent Center), 501 8th Avenue
Southeast, Rochester, Minnesota (Olmsted County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4659 Vencor Hospital-Minneapolis, 4101 Golden Valley Road, Golden Valley, Minnesota (Hennepin County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4612 Vencor Hospital-Kansas City, 8701 Troost, Kansas City, Missouri (Jackson County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4680 Vencor Hospital-St. Louis, 4930 Lindell Blvd., St. Louis, Missouri (St. Louis County)
- --------------- ----------------------------------------------------------------------------------------------------------------
416 Park Place Health Care Center, 1500 32nd Street South, Great Falls, Montana (Cascade County)
- --------------- ----------------------------------------------------------------------------------------------------------------
433 Parkview Acres Care & Rehab Center, 200 Oregon Street, Dillon, Montana (Beaverhead County)
- --------------- ----------------------------------------------------------------------------------------------------------------
116 Pettigrew Rehab & Healthcare Ctr., 1515 West Pettigrew Street, Durham, North Carolina (Durham County)
- --------------- ----------------------------------------------------------------------------------------------------------------
136 LaSalle Healthcare Center, 411 South LaSalle Street, Durham, North Carolina (Durham County)
- --------------- ----------------------------------------------------------------------------------------------------------------
137 Sunnybrook Alzheimer's & Healthcare Specialists, 25 Sunnybrook Road, Raleigh, North Carolina (Wake County)
- --------------- ----------------------------------------------------------------------------------------------------------------
138 Blue Ridge Rehab & Healthcare Ctr., 91 Victoria Road, Asheville, North Carolina (Buncombe County)
- --------------- ----------------------------------------------------------------------------------------------------------------
143 Raleigh Rehab & Healthcare Center, 616 Wade Avenue, Raleigh, North Carolina (Wake County)
- --------------- ----------------------------------------------------------------------------------------------------------------
146 Rose Manor Health Care Center, 4230 North Roxboro Road, Durham, North Carolina (Durham County)
- --------------- ----------------------------------------------------------------------------------------------------------------
188 Cypress Pointe Rehab & HC Center, 2006 South 16th Street, Wilmington, North Carolina (New Hanover County)
- --------------- ----------------------------------------------------------------------------------------------------------------
190 Winston-Salem Rehab & HC Center, 1900 West First Street, Winston-Salem, North Carolina (Forsyth County)
- --------------- ----------------------------------------------------------------------------------------------------------------
191 Silas Creek Manor, 3350 Silas Creek Parkway, Winston-Salem, North Carolina (Forsyth County)
- --------------- ----------------------------------------------------------------------------------------------------------------
307(4) Lincoln Nursing Center, 1410 East Gaston Street, Lincoln, North Carolina
- --------------- ----------------------------------------------------------------------------------------------------------------
704 Guardian Care of Roanoke Rapids, 305 Fourteenth Street, Roanoke Rapids, North Carolina (Halifax County)
- --------------- ----------------------------------------------------------------------------------------------------------------
706 Guardian Care of Henderson, 280 South Beckford Drive, Henderson, North Carolina (Vance County)
- --------------- ----------------------------------------------------------------------------------------------------------------
707 Rehab and Nursing Center of Monroe, 1212 Sunset Drive East, Monroe, North Carolina (Union County)
- --------------- ----------------------------------------------------------------------------------------------------------------
711 Guardian Care of Kinston, 907 Cunningham Road, Kinston, North Carolina (Lenoir County)
- --------------- ----------------------------------------------------------------------------------------------------------------
713 Guardian Care of Zebulon, 509 West Gannon Avenue, Zebulon, North Carolina (Wake County)
- --------------- ----------------------------------------------------------------------------------------------------------------
723(4) Guardian Care of Rocky Mount, 160 Winstead Avenue, Rocky Mount, North Carolina 27804
- --------------- ----------------------------------------------------------------------------------------------------------------
724 Rehab and Health Center of Gastonia, 416 North Highland Avenue, Gastonia, North Carolina (Gaston County)
- --------------- ----------------------------------------------------------------------------------------------------------------
726(4) Guardian Care of Elizabeth Center, 901 Halstead Blvd., Elizabeth City, North Carolina (Pasquotank County)
- --------------- ----------------------------------------------------------------------------------------------------------------
-6-
<PAGE>
- --------------- ----------------------------------------------------------------------------------------------------------------
FACILITY
NO. FACILITY NAME AND ADDRESS
- --------------- ----------------------------------------------------------------------------------------------------------------
806 Chapel Hill Rehab and Healthcare Ctr., 1602 East Franklin Street, Chapel Hill, North Carolina (Orange County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4662 Vencor Hospital-Greensboro, 2401 Southside Blvd., Greensboro, North Carolina (Guilford County)
- --------------- ----------------------------------------------------------------------------------------------------------------
746 Homestead Health Care and Rehab Ctr., 4735 S. 54th Street, Lincoln, Nebraska (Lancaster County)
- --------------- ----------------------------------------------------------------------------------------------------------------
591 Dover Rehab & Living Center, 307 Plaza Drive, Dover, New Hampshire (Strafford County)
- --------------- ----------------------------------------------------------------------------------------------------------------
592(4) Greenbriar Terrace Healthcare, 55 Harris Road, Nashua, New Hampshire 03062
- --------------- ----------------------------------------------------------------------------------------------------------------
593 Hanover Terrace Healthcare, 53 Lyme Road, Hanover, New Hampshire (Grafton County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4664(4) Vencor Hospital-Albuquerque, 700 High Street, N.W., Albuquerque, New Mexico 87102
- --------------- ----------------------------------------------------------------------------------------------------------------
640 Las Vegas Healthcare & Rehab Ctr., 2832 South Maryland Parkway, Las Vegas, Nevada (Clark County)
- --------------- ----------------------------------------------------------------------------------------------------------------
641 Torrey Pines Care Center, 1701 South Torrey Pine Drive, Las Vegas, Nevada (Clark County)
- --------------- ----------------------------------------------------------------------------------------------------------------
3642 Shadow Mountain Nursing Home (f/k/a Hillhaven Convalescent Center), 5659 Duncan Drive, Las Vegas, Nevada
(Clark County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4647 THC-Las Vegas Hospital, 5100 West Sahara Avenue, Las Vegas, Nevada (Clark County
- --------------- ----------------------------------------------------------------------------------------------------------------
560 Franklin Woods Health Care Center, 2770 Clime Road, Columbus, Ohio (Franklin County)
- --------------- ----------------------------------------------------------------------------------------------------------------
569 Chillicothe Nursing & Rehab. Center, 60 Marietta Road, Chillecothe, Ohio (Ross County)
- --------------- ----------------------------------------------------------------------------------------------------------------
570 Pickerington Nursing & Rehab Ctr., 1300 Hill Road North, Pickerington, Ohio (Fairfield County)
- --------------- ----------------------------------------------------------------------------------------------------------------
571 Logan Health Care Center, 300 Arlington Avenue, Logan, Ohio (Hocking County)
- --------------- ----------------------------------------------------------------------------------------------------------------
572 Winchester Place Nsg. & Rehab. Ctr., 36 Lehman Drive, Canal Winchester, Ohio (Franklin County)
- --------------- ----------------------------------------------------------------------------------------------------------------
577 Minerva Park Nursing & Rehab Ctr., 5460 Cleveland Avenue, Columbus, Ohio (Franklin County)
- --------------- ----------------------------------------------------------------------------------------------------------------
578 West Lafayette Rehab & Nsg. Center, 620 East Main Street, West Lafayette, Ohio (Coshocton County)
- --------------- ----------------------------------------------------------------------------------------------------------------
634 Cambridge Health & Rehab Center, 1471 Wills Creek Valley Drive, Cambridge, Ohio (Guernsey County)
- --------------- ----------------------------------------------------------------------------------------------------------------
635 Coshocton Health & Rehab Center, 100 South Whitewoman Street, Coshocton, Ohio (Coshocton County)
- --------------- ----------------------------------------------------------------------------------------------------------------
802 Bridgepark Ctr. For Rehab and Nsg. Sv., 145 Olive Street, Akron, Ohio (Summit County)
- --------------- ----------------------------------------------------------------------------------------------------------------
868 Lebanon Country Manor, 700 Monroe Road, Lebanon, Ohio (Warren County)
- --------------- ----------------------------------------------------------------------------------------------------------------
3297 Autumnwood of Sylvania (f/k/a Marigarde-Sylvania Nursing Home), 4111 Holand-Sylvania Road, Toledo, Ohio (Lucas
County)
- --------------- ----------------------------------------------------------------------------------------------------------------
3920 Marietta Center for Health and Rehabilitation, 117 Bartlett Street, Marietta, Ohio (Washington County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4618 Vencor Hospital-Oklahoma City, 1407 North Robinson Avenue, Oklahoma City, Oklahoma (Oklahoma County)
- --------------- ----------------------------------------------------------------------------------------------------------------
452 Sunnyside Care Center, 4515 Sunnyside Road, S.E., Salem, Oregon (Marion County)
- --------------- ----------------------------------------------------------------------------------------------------------------
453 Medford Rehab & Healthcare Center, 625 Stevens Street, Medford, Oregon (Jackson County)
- --------------- ----------------------------------------------------------------------------------------------------------------
1237 Wyomissing Nsg. And Rehab. Ctr., 1000 E. Wyomissing Blvd., Reading, Pennsylvania (Berks County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4614(5) Vencor Hospital-Philadelphia, 6129 Palmetto Street, Philadelphia, Pennsylvania (Philadelphia County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4619(6) Vencor Hospital-Pittsburgh, 7777 Steubenville Pike, Oakdale, Pennsylvania (Allegheny County)
- --------------- ----------------------------------------------------------------------------------------------------------------
- ----------
5 Also executed and delivered by Ventas, Inc.
6 Also executed and delivered by Ventas, Inc.
-7-
<PAGE>
- --------------- ----------------------------------------------------------------------------------------------------------------
FACILITY
NO. FACILITY NAME AND ADDRESS
- --------------- ----------------------------------------------------------------------------------------------------------------
1224 Health Havens Nursing and Rehab, 100 Wampanoag Trail, East Providence, Rhode Island (Providence County)
- --------------- ----------------------------------------------------------------------------------------------------------------
1231 Oak Hill Nursing and Rehab Ctr., 544 Pleasant Street, Pawtucket, Rhode Island (Providence County)
- --------------- ----------------------------------------------------------------------------------------------------------------
132 Madison Healthcare & Rehab Ctr., 431 Larkin Springs Road, Madison, Tennessee (Davidson County)
- --------------- ----------------------------------------------------------------------------------------------------------------
182 Cordova Rehab & Nursing Center, 955 Germantown Parkway, Cordova, Tennessee (Shelby County)
- --------------- ----------------------------------------------------------------------------------------------------------------
822 Primacy Healthcare and Rehabilitation Center, 6025 Primacy Parkway, Memphis, Tennessee (Shelby County)
- --------------- ----------------------------------------------------------------------------------------------------------------
884 Masters Health Care Center, 278 Dry Valley Road, Algood, Tennessee (Putnam County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4628 Vencor Hospital-Chattanooga, 709 Walnut Street, Chattanooga, Tennessee (Hamilton County)
- --------------- ----------------------------------------------------------------------------------------------------------------
3721 Tangram, 500 Tangram Ranch Road, Seguin, Texas
- --------------- ----------------------------------------------------------------------------------------------------------------
3722 Tangram, 201 Tangram Mesquite Road, Seguin, Texas
- --------------- ----------------------------------------------------------------------------------------------------------------
3723 Tangram, 3015 Old Lehman Road, Seguin, Texas
- --------------- ----------------------------------------------------------------------------------------------------------------
3724 Tangram, 5309 Tangram Nursery Road, Maxwell, Texas
- --------------- ----------------------------------------------------------------------------------------------------------------
3725 Tangram, 5301 Tangram Nursery Road, Maxwell, Texas
- --------------- ----------------------------------------------------------------------------------------------------------------
3726 Tangram, 301 Tangram Road, Seguin, Texas (Guadalupe County)
- --------------- ----------------------------------------------------------------------------------------------------------------
3727 Tangram, 2385 FM 1984, Maxwell, Texas
- --------------- ----------------------------------------------------------------------------------------------------------------
3728 Tangram, 5225 Airport Highway 21, San Marcos, Texas (Hays County)
- --------------- ----------------------------------------------------------------------------------------------------------------
3718 Tangram, 220/222 Hutchinson Street, San Marcos, Texas (Hays County)
- --------------- ----------------------------------------------------------------------------------------------------------------
3719 Tangram, 618 West Hutchinson Street, San Marcos, Texas (Hays County)
- --------------- ----------------------------------------------------------------------------------------------------------------
1234 San Pedro Manor, 515 W. Ashby Place, San Antonio, Texas (Bexar County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4635 Vencor Hospital-San Antonio, 3636 Medical Drive, San Antonio, Texas (Bexar County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4653(4) Vencor Hospital-Ft. Worth Southwest, 7800 Oakmont Blvd., Ft. Worth, Texas (Tarrant County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4654 Vencor Hospital-Houston Northwest, 11297 Fallbrook Drive, Houston, Texas (Harris County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4660 Vencor Hospital-Mansfield, 1802 Hwy. 157 North, Mansfield, Texas (Tarrant County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4668 Vencor Hospital-Ft. Worth West, 815 Eighth Avenue, Ft. Worth, Texas (Tarrant County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4685(4) Vencor Hospital-Houston, 6441 Main Street, Houston, Texas 77030
- --------------- ----------------------------------------------------------------------------------------------------------------
140 Wasatch Care Center, 3430 Harrison Boulevard, Ogden, Utah (Weber County)
- --------------- ----------------------------------------------------------------------------------------------------------------
230 Crosslands Rehab & Health Care Ctr., 575 East 11000 South, Sandy, Utah (Salt Lake County)
- --------------- ----------------------------------------------------------------------------------------------------------------
247 St. George Care and Rehab Center, 1032 East 100th Street, St. George, Utah (Washington County)
- --------------- ----------------------------------------------------------------------------------------------------------------
655 Federal Heights Rehab. & Nsg. Ctr., 41 South Ninth Street, Salt Lake City, Utah (Salt Lake County)
- --------------- ----------------------------------------------------------------------------------------------------------------
690 Wasatch Valley Rehabilitation, 2200 East 3300 South, Salt Lake City, Utah (Salt Lake County)
- --------------- ----------------------------------------------------------------------------------------------------------------
559(4) Birchwood Terrace Healthcare, 43 Starr Farm Road, Burlington, Vermont 05401
- --------------- ----------------------------------------------------------------------------------------------------------------
825 Nansemand Pointe Rehab and HC Ctr., 200 West Constance Road, Suffolk, Virginia (Suffolk City County)
- --------------- ----------------------------------------------------------------------------------------------------------------
826 Harbour Pointe Med. And Rehab Centre, 1005 Hampton Blvd., Norfolk, Virginia (Norfolk City County)
- --------------- ----------------------------------------------------------------------------------------------------------------
829 River Pointe Rehab. And Healthcare Ctr., 4142 Bonney Road, Virginia Beach, Virginia (Virginia Beach City
County)
- --------------- ----------------------------------------------------------------------------------------------------------------
-8-
<PAGE>
- --------------- ----------------------------------------------------------------------------------------------------------------
FACILITY
NO. FACILITY NAME AND ADDRESS
- --------------- ----------------------------------------------------------------------------------------------------------------
842 Bay Pointe Medical and Rehab. Centre, 1148 First Colonial Road, Virginia Beach, Virginia (Virginia Beach City
County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4617 Vencor Hospital-Arlington, 601 South Carlin Springs Road, Arlington, Virginia (Arlington County)
- --------------- ----------------------------------------------------------------------------------------------------------------
114 Arden Rehabilitation & Healthcare Center, 16357 Aurora Avenue North, Seattle, Washington (King County)
- --------------- ----------------------------------------------------------------------------------------------------------------
127 Northwest Continuum Care, 128 Beacon Hill Drive, Longview, Washington (Cowlitz County)
- --------------- ----------------------------------------------------------------------------------------------------------------
158 Bellingham Care Center, 1200 Birchwood Avenue, Bellingham, Washington (Whatcom County)
- --------------- ----------------------------------------------------------------------------------------------------------------
165 Rainier Vista Care Center, 920 12th Avenue, S.E., Puyallup, Washington (Pierce County)
- --------------- ----------------------------------------------------------------------------------------------------------------
168 Lakewood Healthcare Center, 11411 Bridgeport Way S.W., Lakewood, Washington (Pierce County)
- --------------- ----------------------------------------------------------------------------------------------------------------
180 Vencor of Vancouver HC Center, 400 East 33rd Street, Vancouver, Washington (Clark County)
- --------------- ----------------------------------------------------------------------------------------------------------------
185 Heritage Health & Rehab Center, 3605 Y Street, Vancouver, Washington (Clark County)
- --------------- ----------------------------------------------------------------------------------------------------------------
461 Edmonds Rehab & Healthcare Center, 21008 76th Avenue West, Edmonds, Washington (Snohomish County)
- --------------- ----------------------------------------------------------------------------------------------------------------
462 Queen Anne Healthcare, 2717 Dexter Avenue North, Seattle, Washington (King County)
- --------------- ----------------------------------------------------------------------------------------------------------------
289 San Luis Medical and Rehabilitation Center, 2305 San Luis Place, Green Bay, Wisconsin (Brown County)
- --------------- ----------------------------------------------------------------------------------------------------------------
765 Eastview Medical and Rehabilitation Center, 729 Park Street, Antigo, Wisconsin (Langlade County)
- --------------- ----------------------------------------------------------------------------------------------------------------
766 Colonial Manor Medical and Rehab Center, 1010 East Wausau Avenue, Wausau, Wisconsin (Marathon County)
- --------------- ----------------------------------------------------------------------------------------------------------------
767 Colony Oaks Care Center, 601 Briarcliff Drive, Appleton, Wisconsin (Outagamie County)
- --------------- ----------------------------------------------------------------------------------------------------------------
769 North Ridge Medical and Rehab Center, 1445 North 7th Street, Manitowoc, Wisconsin (Manitowoc County)
- --------------- ----------------------------------------------------------------------------------------------------------------
770 Vallhaven Care Center, 125 Byrd Avenue, Neenah Wisconsin (Winnebago County)
- --------------- ----------------------------------------------------------------------------------------------------------------
771 Kennedy Park Medical and Rehab Ctr., 6001 Alderson Street, Schofield, Wisconsin (Marathon County)
- --------------- ----------------------------------------------------------------------------------------------------------------
772 Family Heritage Med. And Rehab Ctr., 130 Strawberry Lane, Wisconsin Rapids, Wisconsin (Wood County)
- --------------- ----------------------------------------------------------------------------------------------------------------
773 Mount Carmel Medical and Rehab Center, 677 East State Street, Burlington, Wisconsin (Racine County)
- --------------- ----------------------------------------------------------------------------------------------------------------
774 Mt. Carmel Health and Rehab Ctr., 5700 West Layton Avenue, Milwaukee, Wisconsin (Milwaukee County)
- --------------- ----------------------------------------------------------------------------------------------------------------
775 Sheridan Medical Complex, 8400 Sheridan Road, Kenosha, Wisconsin (Kenosha County)
- --------------- ----------------------------------------------------------------------------------------------------------------
776 Woodstock Health and Rehab Ctr., 3415 Sheridan Road, Kenosha, Wisconsin (Kenosha County)
- --------------- ----------------------------------------------------------------------------------------------------------------
4631 Vencor Hospital-Mount Carmel, 5700 West Layton Avenue, Milwaukee, Wisconsin (Milwaukee County)
- --------------- ----------------------------------------------------------------------------------------------------------------
441 Mountain Towers Healthcare & Rehab, 3128 Boxelder Drive, Cheyenne, Wyoming (Laramie County)
- --------------- ----------------------------------------------------------------------------------------------------------------
481 South Central Wyoming HC & Rehab, 542 - 16th Street, Rawlins, Wyoming (Carbon County)
- --------------- ----------------------------------------------------------------------------------------------------------------
482 Wind River Healthcare & Rehab. Center, 1002 Forest Drive, Riverton, Wyoming (Fremont County)
- --------------- ----------------------------------------------------------------------------------------------------------------
483 Sage View Care Center, 1325 Sage Street, Rock Springs, Wyoming (Sweetwater County)
- --------------- ----------------------------------------------------------------------------------------------------------------
</TABLE>
-9-
<PAGE>
SEPARATION AND RELEASE AGREEMENT
This Separation and Release Agreement ("Agreement") is made by and between
Ventas, Inc. ("Company") and Steven T. Downey ("Employee"). Employee has been
employed by Company as its Executive Vice President and Chief Financial Officer.
The parties hereby agree to the separation from that employment and from any
office or position held in any affiliates of Company upon the following terms:
1. TERMINATION DATE. Employee's separation from the Company's employment
will be effective February 9, 2000 (the "Termination Date"). As of the
Termination Date, Employee shall be relieved of all duties. Employee hereby
resigns from any and all capacities and positions with the Company and all its
affiliates effective as of February 9, 2000, and the Company hereby accepts such
resignation effective as of such date, on behalf of the Company and all of its
affiliates.
2. CONSIDERATION. In exchange for the mutual promises and releases set out
in this Agreement, Company agrees that unless the Agreement is revoked pursuant
to Paragraph 6, it will:
(a) pay Employee the gross amount of four hundred twenty thousand dollars
($420,000), minus all applicable taxes and withholding, two hundred thousand
dollars ($200,000) of which includes 1999 bonus and all accrued vacation.
Company will pay this severance pay in a lump sum no later than ten business
days following Company's receipt of this Agreement executed by Employee.
Employee agrees this amount includes all vacation pay he has accrued;
<PAGE>
(b) continue to provide, at Company expense, for one year following the
Termination Date, health insurance to Employee with the same coverage as other
Company executives. When this coverage ends, employee will be entitled to COBRA;
(c) continue to provide, at Company expense for one year following the
Termination Date, Employee's life insurance being provided by the Company as of
Termination Date;
(d) continue to provide, at Company expense for one year following the
Termination Date, long-term disability insurance benefits to Employee equivalent
to the coverage that the Employee would have had he remained employed by the
Company;
(e) credit Employee with one additional year of vesting for purposes of the
restricted stock awards granted as of September 21, 1998 and January 13, 1999.
The parties acknowledge that (i) the granting of such additional vesting results
in a total of 12,500 shares of the restricted stock award granted as of
September 21, 1998 being vested and 12,500 shares of such restricted stock award
being forfeited and reconveyed to the Company by Employee without additional
consideration and (ii) the granting of such additional vesting results in a
total of 10,000 shares of the restricted stock award granted as of January 13,
1999 being vested and 10,000 shares of such restricted stock award being
forfeited and reconveyed to the Company by Employee without additional
consideration. Notwithstanding the preceding sentences, no additional shares
shall be treated as vested until Employee has provided the Company with or
reimbursed the Company for applicable tax withholding on the vesting, including
prior vesting, of all shares of restricted stock. The parties acknowledge that
Employee made an 83(b) election on the September 21, 1998 grant of stock and
that the Company withheld taxes on that grant of stock;
Page -2- of -12-
<PAGE>
(f) subject to the terms of the Ventas, Inc. 1997 Incentive Compensation
Plan, Employee shall have the right to exercise options for up to 18,750 shares
through May 9, 2001 pursuant to the nonqualified stock option agreement dated
September 21, 1998. The parties acknowledge that options for the remaining
56,250 shares pursuant to the nonqualified stock option agreement dated
September 21, 1998 as well as options for the full 50,000 shares pursuant to the
nonqualified stock option agreement dated May 13, 1999 are forfeited and
canceled;
(g) extinguish the promissory note dated October 22, 1998 in the aggregate
principal sum of one hundred thirty six thousand eight hundred fifty five
dollars and sixty-eight cents ($136,855.68) and forgive the unpaid principal
balance. The amount of said forgiveness will be included in Employee's February
2000 wage and earnings statement as compensation. The Company will withhold and
pay to the appropriate taxing authorities at the highest applicable rate an
amount equal to all taxes required on the amount of forgiveness and will, in
addition, include the taxes required on the gross-up and will withhold and pay
to the appropriate taxing authorities at the highest applicable rate an amount
equal to all taxes required on the gross-up such that all income and withholding
equals two hundred seventy-two thousand one hundred seventy-eight dollars and
sixteen cents ($272,178.16); and
(h) any reimburseable business expenses incurred by Employee in the regular
course of his duties, provided that Employee submits documentation acceptable to
the Company of the amount and purpose of the expenses.
3. OFFSET. The Company may offset any amounts otherwise due to Employee
pursuant to Paragraph 2 to the extent that Employees owes Company any money,
including, for example only, and not as a limit to such monies owed, personal
expenses of Employee paid by the Company or any taxes due on vested restricted
stock.
Page -3- of -12-
<PAGE>
4. INDEMNIFICATION. Employee shall indemnify Company and hold it harmless
for and from any liability, claim, demand, cost, penalties, interest, expenses,
or attorneys' fees incurred by it as a result of any assertion by the Internal
Revenue Service or any state or local taxation authority that the payments made
to Employee under this Agreement are subject to withholding tax under the
provisions of federal, state or local law. Upon receipt of any notice, inquiry,
demand, or threat of assertion of liability with respect to the settlement
payment made to Employee, Company will give Employee written notice within
fifteen (15) days by mailing such notice to his last known address.
5. RELEASE. In consideration for the promises made by the parties and the
payments to be made by Company under this Agreement, the receipt and sufficiency
of which are hereby acknowledged:
(a) Employee hereby releases and forever discharges the Company and its
affiliates and their respective shareholders, directors, officers, agents,
representatives, and employees, past and present, from any and all claims,
demands, causes of action or liabilities, which Employee ever had or now has
against the Company or its officers or directors, including, without limitation,
any such claim, demand, cause of action or liability arising out of or in any
way connected with his employment by and/or separation from the Company
(exclusive of this Agreement). Without limiting the generality of the foregoing,
this release applies to all contracts and agreements (exclusive of this
Agreement) between Employee and Company, including without limitation, the
Change of Control and Severance Agreement and the Employment Agreement, both
entered into between Company and Employee on or about September 28, 1998, and to
any right which Employee has or may have to commence or maintain a charge or
action alleging discrimination under any federal, state or local statute
(whether before a court or an
Page -4- of -12-
<PAGE>
administrative agency), including, but not limited to, the Age Discrimination in
Employment Act of 1967, Title VII of the Civil Rights Act of 1964, the Employee
Retirement Income Security Act of 1974, the Americans with Disabilities Act, the
Family and Medical Leave Act, the Fair Labor Standards Act, the Kentucky Civil
Rights Act, all as amended from time to time, and to any right which Employee
has or may have to commence or maintain a claim for attorneys' fees, wrongful
discharge, estoppel, breach of contract, damage to personal or professional
reputation, misrepresentation, and/or intentional or negligent infliction of
emotional distress.
Employee warrants and represents he has not directly or indirectly
transferred or assigned rights or causes of action against Company. Employee
agrees not to make, assert or maintain any charge, claim, demand or action which
would be covered by this release.
Employee further agrees that this Agreement replaces the Change of Control
Agreement and the Employment Agreement, each entered into between Company and
Employee on or about September 21, 1998, and terminates any rights or
obligations either Company or Employee had under the Change of Control Agreement
and the Employment Agreement.
(b) The Company has no knowledge at this time of any claims it may have
against Employee.
(c) The parties agree that Employee will be covered by the Company's
Directors and Officers Liability Insurance for acts he undertook as an employee
of the Company prior to the Termination Date to the extent that other officers
of the Company are covered.
6. ADEA WAIVER. Employee acknowledges that this Agreement includes a waiver
of any rights and claims arising under the Age Discrimination in Employment Act.
Employee understands he is not waiving rights or claims that may arise after the
date this Agreement is executed. Employee acknowledges that the consideration he
is receiving in
Page -5- of -12-
<PAGE>
exchange for his waiver of the rights and claims specified herein exceeds
anything of value to which he already is entitled. Employee acknowledges that he
was advised in writing to consult with an attorney prior to executing this
Agreement. Employee represents and agrees that he fully understands his right to
discuss all aspects of this Agreement with legal counsel and, to the extent he
deems appropriate, he has fully availed himself of this right. Employee
acknowledges that he has entered into this Agreement knowingly and voluntarily
with full understanding of its terms and after having had the opportunity to
seek and receive advice and counsel from his attorney. Employee acknowledges
that he has been given a period of at least twenty-one (21) days within which to
consider this Agreement. Employee understands that he may revoke this Agreement
during the seven (7) days following the execution of this Agreement and that
this paragraph of the Agreement will not become effective until that seven-day
revocation period has expired.
7. NON-LIABILITY. This Agreement is not intended to constitute and should
not be construed as constituting an admission of fault, wrongdoing or liability
by either party, but rather reflects the desire of the parties to resolve fairly
and amicably any past, present, or future disputes or claims.
8. NON-DISPARAGEMENT. The parties agree that they will not, directly or
indirectly, individually or in concert with others, engage in any conduct or
make any statement that is calculated or likely to have the effect of
undermining, disparaging or otherwise reflecting poorly upon the other,
including upon the reputation of the Company or its good will, products,
officers, directors, or business opportunities or that is in any manner
detrimental to Company and/or its officers, directors, agents, representatives,
or employees, past or present. Employee specifically agrees that he will not at
any time speak with the press or any other media about his
Page -6- of -12-
<PAGE>
employment with Company, the separation of that employment, his duties with the
Company, or the Company's business or affairs.
9. COOPERATION. Employee agrees to make himself available at reasonable
times to Company and its accountants, counsel, officers and employees for the
purpose of assisting the Company with the transition of his duties, answering
any questions, signing any documents, and resolving any problems. Employee
agrees to cooperate with Company as reasonably directed by it by responding to
questions, depositions, administrative proceedings and court hearings, executing
documents, and cooperating with Company and its accountants and legal counsel
with respect to business or financial issues, and/or claims and litigation of
which he has personal or corporate knowledge. Employee also shall make himself
available at reasonable times to answer questions or provide other information
within his possession and requested by Company relating to Company or its
operations in order to facilitate the smooth transition of Employee's duties to
his successor. Company will pay Employee one hundred fifty dollars ($150) per
hour for time he spends on such matters.
Employee specifically agrees that he will cooperate fully with the Company
to transfer his responsibility for bank accounts and investments to
Company-designated representatives and that he will take no action after the
Termination Date with respect to any Company bank account or investment.
10. CONFIDENTIALITY OF TERMS OF AGREEMENT. The parties agree that the terms
of this Agreement are confidential, and they promise not to disclose any of the
terms hereof to any third party, except that they may disclose it to their
respective financial and/or legal counsel, as required by the terms of a court
order or other legal process, or, in the Company's case, as required by business
necessity or as may be required by applicable law. If
Page -7- of -12-
<PAGE>
any party is required to reveal this information pursuant to a court order or
other legal process, that party agrees to provide the other party with written
notice of the requirement and a copy of the court order or legal process within
two business days of receipt of the court order or legal process and prior to
any disclosure pursuant to such requirement and agrees to cooperate with the
other party in any efforts by that party to limit the scope of disclosure of the
information and to obtain confidential treatment of any material disclosed.
Company hereby notifies Employee that it will disclose the terms of this
Agreement with its filings of Form 10-K statements with the United States
Securities and Exchange Commission. Employee agrees that Company may issue a
press release announcing his departure from the Company to pursue other
opportunities and that such press release will not breach the provisions of this
Paragraph.
11. COMPANY PROPERTY. Employee agrees that he will return to the Company
(in its current form and substance) no later than 2 business days after the
Termination Date any and all property of the Company and the Company's
Confidential Information (as defined below) which came into his possession, or
which he prepared or helped prepare, in connection with or during his employment
with the Company (including, but not limited to any and all copies of financial
statements, auditors reports and letters, records, ledgers, spreadsheets,
writings, materials, memoranda and other tangible manifestations of and/or
pertaining to such Confidential Information, regardless of for whom the same
were prepared). Employee further agrees that he has not retained and will not
retain any copies, duplicates, reproductions, or excerpts thereof. This
obligation specifically applies to any Company computer files Employee may have
in any other location other than at the Company, including in his home and the
laptop computer Employee was allowed to use in the performance of his duties.
Employee specifically
Page -8- of -12-
<PAGE>
agrees that effective immediately, he will not use and will immediately return
all Company keys, credit cards, calling cards, limousine cards and vouchers,
computers, and the like.
12. CONFIDENTIAL COMPANY INFORMATION. The Company's Confidential
Information (as defined below) is the property of the Company, and its use,
misappropriation or disclosure will constitute a breach of trust and cause
irreparable injury or harm to the Company and to its strategic and competitive
position. It is essential to the protection of the Company's business and good
will and to the maintenance of the Company's strategic and competitive position
that the Confidential Information be kept secret and confidential and that
Employee not disclose the Confidential Information to any other person or entity
or use the Confidential Information to his own advantage or the advantage to
others.
Employee agrees that he will not, without the prior written consent of the
Board, disclose or make available to anyone for use outside the Company's
organization at any time any of the Company's Confidential Information, whether
or not developed by the him, except to the extent that such information (i) is
or becomes generally available to the public other than as a result of a
disclosure by Employee in violation of this Agreement, (ii) was available to
Employee on a non-confidential basis prior to the date hereof, or (iii) is
required to be disclosed pursuant to a court order or other legal process
(provided Employee gives the Company notice of such obligation when he receives
notice of such obligation and prior to any disclosure pursuant to such
obligation affords the Company the opportunity and cooperates with the Company
in any efforts by the Company to limit the scope of such obligation and/or to
obtain confidential treatment of any material disclosed pursuant to such
obligation).
For purposes of this Agreement, the term "Confidential Information"
includes information of any nature and in any form which at the time or times
concerned is not generally
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<PAGE>
known to those persons engaged in a business similar to that conducted or
contemplated by the Company and which relates to any one or more of the aspects
of the Company's business, actual or potential products of the Company, or the
Company's strategies or potential liabilities, including, but not limited to,
information protected by the Company's attorney/client, work product, or tax
advisor/audit privilege; tax matters and information; negotiations with third
parties; methods, policies, processes, formulas, techniques, know-how and other
knowledge; trade practices, trade secrets, or financial matters; customers,
lists of customers or customers' purchases; lists of suppliers, manufacturers,
representatives, or other distributors; requirements for systems, programs,
machines, or other equipment; information regarding Company's bank accounts,
credit agreement, or financial projections information; and information
regarding its directors or officers or their personal affairs.
13. NON-COMPETE. Employee agrees that, for a period of two years following
the Termination Date (the "Restricted Period"), he shall not directly or
indirectly become employed by or engage or participate in Vencor, Inc. or any of
its parent, sister, subsidiary, or affiliated entities in any manner, including,
without limitation, as an owner, principal, partner, officer, director,
stockholder, employee, consultant, contractor, agent, broker, representative or
otherwise. The parties agree that Employee will not be in breach of this
Paragraph if, as part of a restructuring of Vencor in which Ventas stock holders
receive Vencor stock, he becomes a shareholder in Vencor.
14. NO SOLICITATION OF EMPLOYEES. Employee agrees that, during the
Restricted Period, he will not, either directly or indirectly, on his own or in
the service or on behalf of others solicit, divert or hire, any person employed
by the Company at any time from the Termination Date through the expiration of
the Restricted Period.
Page -10- of -12-
<PAGE>
15. INJUNCTIVE RELIEF. Employee agrees that it would be difficult to
compensate the Company fully for damages for any violation of the provisions of
this Agreement, including without limitation the provisions of Paragraphs 10
through 14. Accordingly, Employee specifically agrees that the Company shall be
entitled to temporary and permanent injunctive relief for violations of the
provisions of this Agreement.
16. BREACH OF THE AGREEMENT. In the event Employee is in material breach of
any provision of this Agreement, it shall be deemed to constitute a failure of
consideration and the Company shall be relieved of all its obligations
hereunder. Employee agrees to indemnify the Company from and against all
liability, costs and expenses, including reasonable attorneys' fees, arising out
of a breach of this Agreement.
17. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties concerning the subject matter hereof and supersedes all
prior and contemporaneous agreements, if any, between the parties relating to
the subject matter hereof. The Agreement may be modified or amended only by a
supplemental written agreement signed by Employee and the Company.
18. ASSIGNMENT. This Agreement shall inure to the benefit of the Company
and its successors and assigns. In view of the personal nature of Employee's
obligations under this Agreement, he shall not have the right to assign or
transfer any of his rights, obligations, or benefits under this Agreement
without first obtaining the written consent of the Company.
19. ACKNOWLEDGMENT. EMPLOYEE REPRESENTS AND AGREES THAT HE FULLY
UNDERSTANDS HIS RIGHT TO DISCUSS ALL ASPECTS OF THIS AGREEMENT WITH LEGAL
COUNSEL AND, TO THE EXTENT HE DEEMS APPROPRIATE, HE HAS FULLY AVAILED HIMSELF OF
THIS RIGHT, AND HE HAS
Page -11- of -12-
<PAGE>
CAREFULLY READ AND FULLY UNDERSTANDS ALL THE PROVISIONS OF THIS AGREEMENT AND IS
VOLUNTARILY ENTERING INTO THEM.
20. CHOICE OF LAWS. The provisions of this Agreement shall be construed in
accordance with the internal laws, but not the laws of conflicts, applicable to
agreements made in the Commonwealth of Kentucky.
21. COUNTERPARTS. This Agreement may be signed in single or separate
counterparts, each of which shall constitute an original.
VENTAS, INC. STEVEN T. DOWNEY
By: /s/ Debra A. Cafaro /s/ Steven T. Downey
------------------------------ ------------------------------
Debra A. Cafaro
President
Dated: 2/29/00 Dated: 2/29/00
<PAGE>
Contact: Debra A. Cafaro
President and CEO
(502) 357-9010
FOR IMMEDIATE RELEASE
- ---------------------
VENTAS COMPLETES SECOND PHASE CLOSING OF LONG TERM CREDIT FACILITY
LOUISVILLE, KY - (Feb. 29, 2000) - Ventas, Inc. (NYSE:VTR) announced today that
as part of its recently completed amended long-term senior credit facility, it
has executed and delivered to its lenders mortgages, assignments, and other
related documentation granting liens and security interests in substantially all
its real property assets and in other related assets by the date required under
the loan agreement.
"Successfully completing this phase of our loan agreement by the February
28 deadline is another positive and important step," President and CEO Debra A.
Cafaro said. "Our energies are now entirely focused on our continuing work to
finalize Vencor's plan of reorganization and with it, a settlement of the
government investigations of Ventas and Vencor." Vencor, Inc. (OTC/BB: VCRI) is
the Company's principal tenant.
As previously announced, Ventas entered into an amended long-term senior
credit facility with its existing senior lenders on January 31, 2000, which
restructured approximately $973 million of debt. Bank of America and J.P. Morgan
are co-agents under the amended credit facility.
ANNUAL MEETING
Ventas announced that its Board of Directors has set March 28, 2000 as the
record date for its annual meeting, which will be held on May 23, 2000 at The
Olmstead in Louisville, Kentucky.
DIVIDEND
Ventas also said today that, consistent with its previously announced
position, it will not declare or pay a dividend at this time. The Company
intends to maintain a strong cash position pending developments in Vencor's
bankruptcy proceedings. Currently, the Company has approximately $120 million in
cash and cash equivalents.
Vencor filed for bankruptcy court protection in mid-September 1999. It has
the exclusive right to file a plan of reorganization until March 13, 2000 and
has recently announced that it intends to extend the expiration date for its
Debtor-in-Possession financing until June 30, 2000 (subject to bankruptcy court
approval). There can be no assurances that Vencor's plan of reorganization, when
filed, will be on the terms previously announced or otherwise be acceptable to
Ventas and its creditors.
Ventas intends to qualify as a real estate investment trust for the year
ended December 31, 1999 and expects to make the required distribution for 1999
no later than September 15, 2000. The terms of the Company's amended long-term
senior credit facility specifically permit the Company to pay as
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distributions to shareholders all dividends necessary to qualify as a REIT. The
required dividend distribution for 1999 equals 95 percent of the Company's 1999
taxable income, less amounts that were paid as a dividend in February 1999.
SEARCH FOR NEW CFO UNDERWAY
Ventas announced that Steven T. Downey has resigned as its Chief Financial
Officer to pursue other business opportunities. Ms. Cafaro will continue to be
responsible for the Company's financial reporting and audit obligations. A
search for a new Chief Financial Officer is underway.
Ventas, Inc. is a real estate company whose properties include 45
hospitals, 218 nursing centers and eight personal care facilities operating in
36 states.
This press release includes forward-looking statements within the meaning
of Section 27A of the Securities Act of 1933, as amended (the "Securities Act"),
and Section 21E of the Securities and Exchange Act of 1934, as amended (the
"Exchange Act"). All statements regarding Ventas' expected future financial
position, results of operations, cash flows, financing plans, business strategy,
expected lease income, plans and objectives of management for future operations
and statements that include words such as "anticipate," "believe," "plan,"
"would," "will," "should," "estimate," expect," "intend," "may," and other
similar expressions are forward-looking statements. Such forward-looking
statements are inherently uncertain, and stockholders must recognize that actual
results may differ from Ventas' expectations. Ventas does not undertake any duty
to update such forward-looking statements.
Factors that may affect the plans or results of Ventas include, without
limitation, (1) the treatment of Ventas' claims in the Chapter 11 proceedings of
Vencor and the ability of Vencor to successfully reorganize under its Chapter 11
proceedings, (2) the ability of Vencor and Ventas' other operators to maintain
the financial strength and liquidity necessary to satisfy their obligations and
duties under leases and other agreements with Ventas and their existing credit
agreements, (3) the extent of future healthcare reform and regulations,
including cost containment measures and changes in reimbursement policies and
procedures, (4) increases in the cost of borrowing for Ventas, (5) the ability
of Ventas to pay, refinance, restructure and/or extend its indebtedness as it
becomes due, (6) the results of the ongoing settlement discussions pertaining to
the billing disputes and other civil claims against Ventas and Vencor by the
U.S. Department of Justice and other litigation affecting Ventas, (7) the
ability of Ventas to meet the minimum distribution requirements to maintain REIT
status, and (8) success of Ventas in implementing its business strategy and the
nature and extent of future competition. Many of such factors are beyond the
control of Ventas and its management.
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