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MASTER LEASE COMBINATION AMENDMENT AND AGREEMENT
BY AND AMONG
KINDRED HEALTHCARE, INC.
(f/k/a Vencor, Inc.),
KINDRED HEALTHCARE OPERATING, INC.
(f/k/a Vencor Operating, Inc.),
AND
VENTAS REALTY, LIMITED PARTNERSHIP
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MASTER LEASE COMBINATION AMENDMENT AND AGREEMENT
THIS MASTER LEASE COMBINATION AMENDMENT AND AGREEMENT (hereinafter this
"Agreement" ) is dated as of the 10th day of May, 2006 (the "Effective Date"),
and is by and among VENTAS REALTY, LIMITED PARTNERSHIP, a Delaware limited
partnership (together with its successors and assigns, "Lessor"), having an
office at 10350 Ormsby Park Place, Suite 300, Louisville, Kentucky 40223, and
KINDRED HEALTHCARE, INC., a Delaware corporation (f/k/a Vencor, Inc.)
("Kindred"), and KINDRED HEALTHCARE OPERATING, INC., a Delaware corporation
(f/k/a Vencor Operating, Inc.) ("Operator"; Operator, jointly and severally with
Kindred and permitted successors and assignees of Operator and Kindred,
"Tenant"), both having an office at 680 South 4th Avenue, Louisville, Kentucky
40202.
RECITALS
A. Lessor and Tenant entered into a certain Amended and Restated Master
Lease Agreement No. 1 dated as of April 20, 2001 (as the same may have been or
may hereafter be amended, amended and restated, supplemented, modified, severed,
renewed, extended or replaced, the "Lease"), demising to Tenant certain
properties.
B. Lessor and Tenant entered into a certain Master Lease Agreement dated as
of December 12, 2001 (as the same may have been or may hereafter be amended,
amended and restated, supplemented, modified, severed, renewed, extended or
replaced, the "CMBS Lease"), demising to Tenant certain properties. Lessor
assigned its interest in the CMBS Lease to Ventas Finance I, LLC, a Delaware
limited liability company, which entity in turn, prior to the date hereof, was
merged into Lessor, so that Lessor is the "Lessor" under the CMBS Lease.
C. Lessor and Tenant entered into a certain Master Lease Agreement No. 1A
dated as of September 8, 2004 (as the same may have been or may hereafter be
amended, amended and restated, supplemented, modified, severed, renewed,
extended or replaced, "Lease 1A"), demising to Tenant certain properties (the
Lease, the CMBS Lease and Lease 1A are sometimes referred to herein collectively
as the "Master Leases").
D. Each of the Lease, the CMBS Lease and Lease 1A includes provisions
providing for the combination of the Lease and the CMBS Lease and Lease 1A.
E. Lessor and Tenant desire to combine and merge the CMBS Lease and Lease
1A into the Lease in accordance with the provisions of such leases providing for
the combination thereof, on the terms set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereby amend each of the Master Leases and
agree as follows:
1. Capitalized Terms. All capitalized terms used herein and not defined
herein shall have the meaning ascribed thereto in the Lease.
2. Combination of Leases. Effective as of the Effective Date, each of the
CMBS Lease and Lease 1A shall be combined, and otherwise merged, into the Lease
in accordance with the terms of Section 40.18 of the Master Leases, with the
Lease being treated as the "Section 40.18 Lease" for purposes of such
combination and merger (such combination and merger is referred to in this
Agreement as the "Combination").
3. Base Rent and Current Rent Amendments. Relative to the definitions of
"Base Rent" and "Current Rent" contained in Section 2.1 of the Lease, Lessor and
Tenant agree that the Base Rent and Current Rent for the Leased Properties
demised under the Lease (after giving effect to the Combination) shall, for the
period from May 1, 2006 through April 30, 2007, be equal to Eighty Seven Million
Two Hundred Twenty-Eight Thousand One Hundred Sixteen and 55/100 Dollars
($87,228,116.55) per annum, and, for Rent Calculation Years thereafter, Base
Rent and Current Rent shall be determined as set forth in subsection (d) of the
definition of "Base Rent" or subsection (b) of the definition of "Current Rent",
as applicable, contained in such Section 2.1, in each case subject to the
provisions of Article XIX relative to the amount of the Base Rent and Current
Rent during Extended Terms. Notwithstanding the foregoing, (1) in the event
Lessor exercises the Reset Option referenced in Section 3.2 of the Lease, then,
for periods from and after the Reset Date, each of "Base Rent" and "Current
Rent" shall mean the Fair Market Rental applicable to such period, as determined
pursuant to Section 3.2 of the Lease and including any escalations that are part
of the Fair Market Rental as so determined, and (2) exercise of the Reset Option
shall not limit the applicability of Sections 19.2 and 19.3 of the Lease.
4. Post-Combination Exhibits. By virtue of the Combination, effective as of
the Effective Date, the Exhibits to the Lease, the CMBS Lease and Lease 1A shall
be combined as set forth in Section 40.18 of the Master Leases (e.g., after the
Combination, Exhibit A to the Lease, as the Section 40.18 Lease, shall consist
of the legal descriptions that, prior to the Combination, constituted Exhibit A
to the Lease, the CMBS Lease and Lease 1A), and Lessor and Tenant agree and
confirm that, by virtue of the Combination, effective as of the Effective Date:
(a) Exhibit B to the Lease shall read as set forth in Attachment 1 to this
Agreement.
(b) Exhibit C to the Lease shall read as set forth in Attachment 2 to this
Agreement.
(c) Exhibit D to the Lease shall read as set forth in Attachment 3 to this
Agreement.
(d) Schedule 2.1A to the Lease shall read as set forth in Attachment 4 to
this Agreement.
(e) Schedule 16.1(m)A to the Lease shall read as set forth in Attachment 5
to this Agreement.
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(f) Schedule 16.1(m)B to the Lease shall read as set forth in Attachment 6
to this Agreement.
5. No Other Amendments. Except as provided in this Agreement, the Master
Leases remain in full force and effect without modification.
6. Successors and Assigns. This Agreement and the covenants and agreements
herein contained shall be binding upon and inure to the benefit of Lessor and
Tenant and their respective heirs, devisees, successors and assigns.
7. Integrated Agreement; Modifications; Waivers. This Agreement constitutes
the entire agreement between the parties hereto with respect to the subject
matter hereof and supersedes any and all prior representations, understandings
and agreements, whether written or oral, with respect to such subject matter.
Each of the parties hereto acknowledges that it has not relied upon, in entering
into this Agreement, any representation, warranty, promise or condition not
specifically set forth in this Agreement. No supplement, modification or waiver
of any provision of this Agreement shall be binding unless executed in writing
by the party to be bound thereby. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provision
hereof (whether or not similar), nor shall such waiver constitute a continuing
waiver unless otherwise expressly provided.
8. Headings and Captions. The headings and captions of the paragraphs of
this Agreement are for convenience of reference only and shall not affect the
meaning or interpretation of this Agreement or any provision hereof.
9. Gender and Number. As used in this Agreement, the neuter shall include
the feminine and masculine, the singular shall include the plural, and the
plural shall include the singular, except where expressly provided to the
contrary.
10. Severability. In the event that any paragraph, section, sentence,
clause or phrase contained in this Agreement becomes or is held by any court of
competent jurisdiction to be illegal, null or void or against public policy, the
remaining paragraphs, sections, sentences, clauses or phrases contained in this
Agreement shall not be affected thereby.
11. Counterparts. This Agreement and any amendment to this Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto were upon the same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed these presents the day
and year first above written.
TENANT:
KINDRED HEALTHCARE, INC., a Delaware
corporation formerly known as Vencor, Inc.
By: /s/ Douglas L. Curnutte
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Name: Douglas L. Curnutte
Title: Vice President of Facilities
and Real Estate Development
TENANT:
KINDRED HEALTHCARE OPERATING, INC., a
Delaware corporation formerly known as Vencor
Operating, Inc.
By: /s/ Douglas L. Curnutte
-----------------------------------------
Name: Douglas L. Curnutte
Title: Vice President of Facilities
and Real Estate Development
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LESSOR:
VENTAS REALTY, LIMITED PARTNERSHIP, a
Delaware limited partnership
By: Ventas, Inc., a Delaware corporation,
its general partner
By: /s/ T. Richard Riney
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T. Richard Riney, Executive Vice
President, General Counsel and
Secretary
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JOINDER
The undersigned, VENTAS, INC., a Delaware corporation, hereby joins in the
foregoing instrument (capitalized terms used in this Joinder shall have the same
meaning herein as in such instrument) solely for the purposes of (i) confirming
to Tenant that, to the best of its knowledge, except as described in subsection
(ii) below, title to the Leased Properties is held in the name of Lessor, rather
than in the name of the respective entities that were the lessor under the
"Original Master Lease" referenced in the Lease, and that, if it is determined
that title has not properly been transferred to Lessor, Ventas, Inc. shall cause
the conveyance of such title to Lessor, effective as of April 20, 2001, (ii)
confirming to Tenant that, to the best of its knowledge, title to the Leased
Property commonly known as Vencor Hospital - Pittsburgh (Facility No. 4619) is
held in the name of Ventas, Inc., and (iii) subject to Section 40.2 of the
Lease, joining with Ventas Realty, Limited Partnership, on a joint and several
basis, as Lessor under the Lease with respect to, and only with respect to, the
aforesaid Vencor Hospital -Pittsburgh Leased Property, and for no other
purposes. Notwithstanding anything to the contrary contained in the Lease,
Tenant acknowledges and agrees, by the acceptance of this Joinder, that, except
as provided in subsection (i) above, Ventas, Inc. shall have no liability or
obligations under the Lease, as lessor or otherwise, with respect to any Leased
Property other than the aforesaid Vencor Hospital -Pittsburgh Leased Property.
VENTAS, INC.
By: /s/ T. Richard Riney
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T. Richard Riney,
Title: Executive Vice President