Exhibit 4.3
EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
Dated as of April 17, 2002
By and Among
Ventas Realty, Limited Partnership and Ventas Capital Corporation
as Issuers,
The Guarantors listed on Schedule A hereto
and
UBS WARBURG LLC
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
BANC OF AMERICA SECURITIES LLC
J.P. MORGAN SECURITIES INC.
CREDIT LYONNAIS SECURITIES (USA) INC.
CIBC WORLD MARKETS CORP.
U.S. BANCORP PIPER JAFFRAY INC.
as Initial Purchasers
8 3/4% Senior Notes due 2009
9% Senior Notes due 2012
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated
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as of April 17, 2002, by and among Ventas Realty, Limited Partnership and Ventas
Capital Corporation (collectively, the "Issuers"), the entities listed on
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Schedule A attached hereto (the "Guarantors"), and UBS WARBURG LLC, MERRILL
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LYNCH, PIERCE, FENNER & SMITH INCORPORATED, BANC OF AMERICA SECURITIES LLC, J.P.
MORGAN SECURITIES INC., CREDIT LYONNAIS SECURITIES (USA) INC., CIBC WORLD
MARKETS CORP. and U.S. BANCORP PIPER JAFFRAY INC. (the "Initial Purchasers").
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This Agreement is entered into in connection with the Purchase
Agreement, dated as of April 12, 2002, by and among the Issuers, the Guarantors
and the Initial Purchasers (the "Purchase Agreement"), relating to the offering
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of $175,000,000 aggregate principal amount of the Issuers' 8 3/4% Senior Notes
due 2009 (the "2009 Notes") and $225,000,000 aggregate principal amount of 9%
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Senior Notes due 2012 (the "2012 Notes" and, together with the 2009 Notes, the
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"Notes"). The execution and delivery of this Agreement is a condition to the
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Initial Purchasers' obligation to purchase the Notes under the Purchase
Agreement.
The parties hereby agree as follows:
Section 1. Definitions
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As used in this Agreement, the following terms shall have the
following meanings:
"action" shall have the meaning set forth in Section 7(c)
hereof.
"Advice" shall have the meaning set forth in Section 5 hereof.
"Agreement" shall have the meaning set forth in the first
introductory paragraph hereto.
"Applicable Period" shall have the meaning set forth in
Section 2(b) hereof.
"Board of Directors" shall have the meaning set forth in
Section 5 hereof.
"Business Day" shall mean a day that is not a Legal Holiday.
"Commission" shall mean the Securities and Exchange
Commission.
"Day" shall mean a calendar day.
"Damages Payment Date" shall have the meaning set forth in
Section 4(b) hereof.
"Delay Period" shall have the meaning set forth in Section 5
hereof.
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"Effectiveness Period" shall have the meaning set forth in
Section 3(b) hereof.
"Effectiveness Target Date" shall have the meaning set forth
in Section 4(a) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Notes" shall have the meaning set forth in Section
2(a) hereof.
"Exchange Offer" shall have the meaning set forth in Section
2(a) hereof.
"Exchange Offer Registration Statement" shall have the meaning
set forth in Section 2(a) hereof.
"Guarantors" shall have the meaning set forth in the
introductory paragraph hereto.
"Holder" shall mean any Person who owns Transfer Restricted
Securities.
"Indentures" shall mean the 2009 Note Indenture and the 2012
Note Indenture.
"Initial Purchasers" shall have the meaning set forth in the
first introductory paragraph hereof.
"Inspectors" shall have the meaning set forth in Section 5(n)
hereof.
"Issue Date" shall mean April 17, 2002, the date of original
issuance of the Notes.
"Issuers" shall have the meaning set forth in the introductory
paragraph hereto and shall also include the Issuers' permitted successors and
assigns.
"Legal Holiday" shall mean a Saturday, a Sunday or a day on
which banking institutions in New York, New York are required by law, regulation
or executive order to remain closed.
"Liquidated Damages" shall have the meaning set forth in
Section 4(a) hereof.
"Losses" shall have the meaning set forth in Section 7(a)
hereof.
"NASD" shall have the meaning set forth in Section 5(s)
hereof.
"Notes" shall have the meaning set forth in the second
introductory paragraph hereto.
"Participant" shall have the meaning set forth in Section 7(a)
hereof.
"Participating Broker-Dealer" shall have the meaning set forth
in Section 2(b) hereof.
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"Person" shall mean an individual, corporation, partnership,
joint venture association, joint stock company, trust, unincorporated limited
liability company, government or any agency or political subdivision thereof or
any other entity.
"Private Exchange" shall have the meaning set forth in Section
2(b) hereof.
"Private Exchange Notes" shall have the meaning set forth in
Section 2(b) hereof.
"Prospectus" shall mean the prospectus included in any
Registration Statement (including, without limitation, any prospectus subject to
completion and a prospectus that includes any information previously omitted
from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A promulgated under the Securities Act), as amended or
supplemented by any prospectus supplement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
"Purchase Agreement" shall have the meaning set forth in the
second introductory paragraph hereof.
"Records" shall have the meaning set forth in Section 5(n)
hereof.
"Registration Default" shall have the meaning set forth in
Section 4(a) hereof.
"Registration Statement" shall mean any appropriate
registration statement of the Issuer covering any of the Transfer Restricted
Securities filed with the Commission under the Securities Act, and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Requesting Participating Broker-Dealer" shall have the
meaning set forth in Section 2(b) hereof.
"Rule 144" shall mean Rule 144 promulgated under the
Securities Act, as such Rule may be amended from time to time, or any similar
rule (other than Rule 144A) or regulation hereafter adopted by the Commission
providing for offers and sales of securities made in compliance therewith
resulting in offers and sales by subsequent holders that are not affiliates of
an issuer of such securities being free of the registration and prospectus
delivery requirements of the Securities Act.
"Rule 144A" shall mean Rule 144A promulgated under the
Securities Act, as such Rule may be amended from time to time, or any similar
rule (other than Rule 144) or regulation hereafter adopted by the Commission.
"Rule 415" shall mean Rule 415 promulgated under the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission.
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"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Shelf Filing Event" shall have the meaning set forth in
Section 2(c) hereof.
"Shelf Registration" shall have the meaning set forth in
Section 3(a) hereof.
"Shelf Registration Statement" shall mean a Registration
Statement filed in connection with a Shelf Registration.
"TIA" shall mean the Trust Indenture Act of 1939, as amended.
"Transfer Restricted Securities" shall mean each Note upon its
original issuance and at all times subsequent thereto, each Exchange Note as to
which Section 2(c)(iii) hereof is applicable upon original issuance and at all
times subsequent thereto and each Private Exchange Note upon original issuance
thereof and at all times subsequent thereto, in each case until (i) the date on
which such Note has been exchanged by a Person other than a broker-dealer for an
Exchange Note in the Exchange Offer, (ii) following the exchange by a
broker-dealer in the Exchange Offer of a Note for an Exchange Note, the date on
which such Exchange Note is sold to a purchaser who receives from such
broker-dealer on or prior to the date of such sale a copy of the prospectus
contained in the Exchange Offer Registration Statement, (iii) the date on which
such Note has been effectively registered under the Securities Act and disposed
of in accordance with the Shelf Registration Statement, or (iv) the date on
which such Note is distributed to the public pursuant to Rule 144 under the
Securities Act or is eligible for resale pursuant to Rule 144(k).
"Trustees" shall mean the 2009 Note Trustee and the 2012 Note
Trustee.
"2009 Note Indenture" shall mean the indenture, dated as of
April 17, 2002 by and among the Issuers, the Guarantors and U.S. Bank National
Association, as trustee, pursuant to which the 2009 Notes are being issued, as
amended or supplemented from time to time in accordance with the terms thereof.
"2012 Note Indenture" shall mean the indenture, dated as of
April 17, 2002 by and among the Issuers, the Guarantors and U.S. Bank National
Association, as trustee, pursuant to which the 2012 Notes are being issued, as
amended or supplemented from time to time in accordance with the terms thereof.
"2009 Note Trustee" shall mean the trustee under the 2009 Note
Indenture and the trustee (if any) under any indenture governing the Exchange
Notes and Private Exchange Notes.
"2012 Note Trustee" shall mean the trustee under the 2012 Note
Indenture and the trustee (if any) under any indenture governing the Exchange
Notes and Private Exchange Notes.
"2009 Series" shall have the meaning set forth in Section 2(b)
hereof.
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"2012 Series" shall have the meaning set forth in Section 2(b)
hereof.
"Underwritten registration or underwritten offering" shall
mean a registration in which securities of the Issuers are sold to an
underwriter for reoffering to the public.
Section 2. Exchange Offer
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(a) The Issuers and the Guarantors shall (i) file a
Registration Statement (the "Exchange Offer Registration Statement") within 45
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days after the Issue Date with the Commission on an appropriate registration
form with respect to a registered offer (the "Exchange Offer") to exchange
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Transfer Restricted Securities for a like aggregate principal amount of Notes
(the "Exchange Notes") that are identical in all material respects to the Notes
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(except that the Exchange Notes shall not contain terms with respect to transfer
restrictions or Liquidated Damages upon a Registration Default), (ii) use their
respective commercially reasonable efforts to cause the Exchange Offer
Registration Statement to be declared effective under the Securities Act within
180 days after the Issue Date and (iii) use their respective best efforts to
consummate the Exchange Offer within 30 Business Days, or longer, if required by
the federal securities laws, after the date on which the Exchange Offer
Registration Statement is declared effective by the Commission. Upon the
Exchange Offer Registration Statement being declared effective by the
Commission, the Issuers and the Guarantors will offer the Exchange Notes in
exchange for surrender of the Notes. The Issuers and Guarantors shall keep the
Exchange Offer open for not less than 20 Business Days (or longer if required by
applicable law) after the date notice of the Exchange Offer is mailed to
Holders.
Each Holder that participates in the Exchange Offer will be
required to represent to the Issuers and the Guarantors in writing that (i) any
Exchange Notes to be received by it will be acquired in the ordinary course of
its business, (ii) it has no arrangement or understanding with any Person to
participate in the distribution (within the meaning of the Securities Act) of
the Exchange Notes in violation of the provisions of the Securities Act or, if
it is an affiliate, it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable, (iii) if such
Holder is not a broker-dealer, it is not engaged in, and does not intend to
engage in, a distribution of Exchange Notes, (iv) if such Holder is a
broker-dealer that will receive Exchange Notes for its own account in exchange
for Notes that were acquired as a result of market-making or other trading
activities, it will deliver a prospectus in connection with any resale of such
Exchange Notes and (v) such Holder has full power and authority to transfer the
Notes in exchange for the Exchange Notes and that the Issuers and the Guarantors
will acquire good and unencumbered title thereto free and clear of any liens,
restrictions, charges or encumbrances and not subject to any adverse claims.
(b) The Issuers, the Guarantors and the Initial Purchasers
acknowledge that the Commission has taken the position that any broker-dealer
that elects to exchange Notes that were acquired by such broker-dealer for its
own account as a result of market-making or other trading activities for
Exchange Notes in the Exchange Offer (a "Participating Broker-Dealer") may be
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deemed to be an "underwriter" within the meaning of the Securities Act and must
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Notes (other than a resale of an
unsold allotment resulting from the original offering of the Notes).
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The Issuers, the Guarantors and the Initial Purchasers also
acknowledge that the Commission has taken the position that if the Prospectus
contained in the Exchange Offer Registration Statement includes a plan of
distribution containing a statement to the above effect and the means by which
Participating Broker-Dealers may resell the Exchange Notes, without naming the
Participating Broker-Dealers or specifying the amount of Exchange Notes owned by
them, such Prospectus may be delivered by Participating Broker-Dealers to
satisfy their prospectus delivery obligations under the Securities Act in
connection with resales of Exchange Notes for their own accounts, so long as the
Prospectus otherwise meets the requirements of the Securities Act.
In light of the foregoing, if requested by a Participating
Broker-Dealer (a "Requesting Participating Broker-Dealer"), the Issuers and the
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Guarantors agree to use their respective commercially reasonable efforts to keep
the Exchange Offer Registration Statement continuously effective for a period
not to exceed 30 days after the date on which the Exchange Registration
Statement is declared effective, or such longer period if extended pursuant to
the last paragraph of Section 5 hereof (such period, the "Applicable Period"),
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or such earlier date as all Requesting Participating Broker-Dealers shall have
notified the Issuers in writing that such Requesting Participating
Broker-Dealers have resold all Exchange Notes acquired in the Exchange Offer.
The Issuers and the Guarantors shall include a plan of distribution in such
Exchange Offer Registration Statement that meets the requirements set forth in
the preceding paragraph.
If, prior to consummation of the Exchange Offer, the Initial
Purchasers or any Holder, as the case may be, holds any Notes acquired by it
that have, or that are reasonably likely to be determined to have, the status of
an unsold allotment in an initial distribution, or if any Holder is not entitled
to participate in the Exchange Offer, the Issuers and the Guarantors upon the
request of the Initial Purchasers or any such Holder, as the case may be, shall
simultaneously with the delivery of the Exchange Notes in the Exchange Offer,
issue and deliver to the Initial Purchasers or any such Holder, as the case may
be, in exchange (the "Private Exchange") for such Notes held by the Initial
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Purchasers or any such Holder, as the case may be, a like principal amount of
notes (the "Private Exchange Notes") of the Issuers that are identical in all
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material respects to the Exchange Notes except that the Private Exchange Notes
may be subject to restrictions on transfer and bear a legend to such effect. The
Private Exchange Notes shall be issued pursuant to the same indenture as the
Exchange Notes and bear the same CUSIP number as the Exchange Notes.
For each Note surrendered in the Exchange Offer, the Holder
will receive an Exchange Note having a principal amount equal to that of the
surrendered Note. Interest on each Exchange Note and Private Exchange Note
issued pursuant to the Exchange Offer and in the Private Exchange will accrue
from the last interest payment date on which interest was paid on the Notes
surrendered in exchange therefor or, if no interest has been paid on the Notes,
from the Issue Date.
Upon consummation of the Exchange Offer in accordance with
this Section 2, the Issuers and the Guarantors shall have no further
registration obligations other than their continuing registration obligations
with respect to (i) Private Exchange Notes, (ii) Exchange Notes held by
Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which
clause (c)(iii) of this Section 2 applies.
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In connection with the Exchange Offer, the Issuers and the
Guarantors shall:
(1) mail or cause to be mailed to each Holder entitled to
participate in the Exchange Offer a copy of the Prospectus
forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and related
documents;
(2) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of
New York;
(3) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York time, on the last
Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all
applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer
and the Private Exchange, if any, the Issuers and the Guarantors shall:
(1) accept for exchange all Notes validly tendered and not
validly withdrawn by the Holders pursuant to the Exchange Offer
and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for
cancellation all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to
each such Holder of Notes, Exchange Notes or Private Exchange
Notes, as the case may be, equal in principal amount to the
Transfer Restricted Securities of such Holder so accepted for
exchange.
The Exchange Offer and the Private Exchange shall not be
subject to any conditions, other than that (i) the Exchange Offer or Private
Exchange, as the case may be, does not violate applicable law or any applicable
interpretation of the Commission, (ii) no action or proceeding shall have been
instituted or threatened in any court or by any governmental agency which might
materially impair the ability of the Issuers and the Guarantors to proceed with
the Exchange Offer or the Private Exchange, and no material adverse development
shall have occurred in any existing action or proceeding with respect to the
Issuers or the Guarantors and (iii) all governmental approvals shall have been
obtained, which approvals the Issuers and the Guarantors deem necessary for the
consummation of the Exchange Offer or Private Exchange.
The Exchange Notes and the Private Exchange Notes shall be
issued under (i) either the 2009 Note Indenture or the 2012 Note Indenture, as
applicable, or (ii) an indenture identical in all material respects to the
Indentures (in either case, with such changes as are necessary to comply with
any requirements of the Commission to effect or maintain the qualification
thereof under the TIA) and which, in either case, has been qualified under the
TIA and shall provide that (a) the Exchange Notes shall not be subject to the
transfer restrictions set forth in the Indentures and (b) the Private Exchange
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Notes shall be subject to the transfer restrictions set forth in the Indentures.
The Indentures or such indentures shall provide that the 2009 Notes, and the
Exchange Notes and the Private Exchange Notes with respect thereto (the "2009
Series") shall each vote and consent together on all matters as one class and
the 2012 Notes, and the Exchange Notes and Private Exchange Notes with respect
thereto (the "2012 Series") shall each vote and consent together on all matters
as one class and that the Exchange Notes, the Private Exchange Notes or the
Notes forming part of the 2009 Series and the 2012 Series, respectively, will
have the right to vote or consent as separate classes on any matter.
(c) In the event that (i) the Issuers and the Guarantors are
not required to file the Exchange Offer Registration Statement, (ii) the Issuers
and the Guarantors are not permitted to consummate the Exchange Offer because
the Exchange Offer is not permitted by applicable law or Commission policy,
(iii) any Holder notifies the Issuers prior to the 20th day following
consummation of the Exchange Offer that (x) it is prohibited by law or the
applicable interpretations of the Commission from participating in the Exchange
Offer, (y) that it may not resell the Exchange Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus and the prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales, or (z) that it is a broker -dealer and owns Notes
acquired directly from the Issuers or an affiliate of the Issuers (each such
event referred to in clauses (i) through (iii) of this sentence, a "Shelf Filing
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Event"), then the Issuers and the Guarantors shall file a Shelf Registration
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pursuant to Section 3 hereof.
Section 3. Shelf Registration
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If at any time a Shelf Filing Event shall occur, then:
(a) Shelf Registration. The Issuers and the Guarantors shall
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file with the Commission a Registration Statement for an offering to be made on
a continuous basis pursuant to Rule 415 covering all of the Transfer Restricted
Securities not permitted to be exchanged in the Exchange Offer, Private Exchange
Notes and Exchange Notes as to which Section 2(c)(iii) is applicable (the "Shelf
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Registration"). The Issuers and the Guarantors shall use their respective best
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efforts to file with the Commission the Shelf Registration on or prior to 45
days after such filing obligation arises. The Shelf Registration shall be on
Form S-1 or another appropriate form permitting registration of such Transfer
Restricted Securities for resale by Holders in the manner or manners designated
by them (including, without limitation, one or more underwritten offerings). The
Issuers and the Guarantors shall not permit any securities other than Transfer
Restricted Securities to be included in the Shelf Registration.
(b) The Issuers and the Guarantors shall use their respective
commercially reasonable efforts (x) to cause the Shelf Registration to be
declared effective under the Securities Act on or prior to 180 calendar days
after the obligation to file the Shelf Registration arises and (y) to keep the
Shelf Registration continuously effective under the Securities Act for the
period ending on the earlier of the date which is two years from the Issue Date,
subject to extension pursuant to the penultimate paragraph of Section 5 hereof,
and such shorter period ending when all Transfer Restricted Securities covered
by the Shelf Registration have been sold in the manner set forth and as
contemplated in the Shelf Registration or when there are no more Transfer
Restricted Securities (the "Effectiveness Period"); provided, however, that (i)
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the Effectiveness Period in respect of the Shelf Registration shall be extended
to the extent required to permit dealers to comply with the applicable
prospectus delivery
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requirements of Rule 174 under the Securities Act and as otherwise provided
herein and (ii) the Issuers and the Guarantors may suspend the effectiveness of
the Shelf Registration Statement by written notice to the Holders solely as a
result of the filing of a post-effective amendment to the Shelf Registration
Statement to incorporate annual audited financial information with respect to
the Issuers where such post-effective amendment is not yet effective and needs
to be declared effective to permit Holders to use the related Prospectus.
(c) Supplements and Amendments. The Issuers and the Guarantors
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agree to supplement or make amendments to the Shelf Registration Statement as
and when required by the rules, regulations or instructions applicable to the
registration form used for such Shelf Registration Statement or by the
Securities Act or rules and regulations thereunder for shelf registration, or if
reasonably requested by the Holders of a majority in aggregate principal amount
of each series of Notes constituting Transfer Restricted Securities covered by
such Registration Statement or by any underwriter of such Transfer Restricted
Securities.
Section 4. Liquidated Damages
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(a) The Issuers, the Guarantors and the Initial Purchasers
agree that the Holders will suffer damages if the Issuers and the Guarantors
fail to fulfill their obligations under Section 2 or Section 3 hereof and that
it would not be feasible to ascertain the extent of such damages with precision.
Accordingly, the Issuers and the Guarantors agree that if:
(i) the Exchange Offer Registration Statement is not filed
with the Commission on or prior to the 45th day following the Issue Date
or, if that day is not a Business Day, the next day that is a Business Day,
or the Shelf Registration Statement is not filed with the Commission on or
prior to the 45/th/ day following the date that the filing obligation
arose, or, if that day is not a Business Day, the next day that is a
Business Day,
(ii) the Exchange Offer Registration Statement is not
declared effective on or prior to the 180th day following the Issue Date
or, if that day is not a Business Day, the next day that is a Business Day,
or the Shelf Registration Statement is not declared effective on or prior
to the 180/th/ day following the date that the filing obligation arose, or,
if that day is not a Business Day, the next day that is a Business Day (in
either case, the "Effectiveness Target Date"),
(iii) the Exchange Offer is not consummated on or prior to the
30th Business Day following the Effectiveness Target Date with respect to
the Exchange Offer Registration Statement; or
(iv) the Shelf Registration Statement or the Exchange Offer
Registration Statement is declared effective but thereafter ceases to be
effective or usable in connection with resales of Transfer Restricted
Securities during the periods specified hereto, except if the Shelf
Registration ceases to be effective or usable as specifically permitted by
the penultimate paragraph of Section 5 hereof
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(each such event referred to in clauses (i) through (iv) a "Registration
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Default"), liquidated damages in the form of additional cash interest
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("Liquidated Damages") will accrue on the affected Notes and the affected
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Exchange Notes, as applicable. The rate of Liquidated Damages will be $.05 per
week per $1,000 principal amount of Notes for the first 90-day period
immediately following the occurrence of a Registration Default, increasing by an
additional $.05 per week per $1,000 principal amount of Notes with respect to
each subsequent 90-day period up to a maximum amount of additional interest of
$.20 per week per $1,000 principal amount of Notes, from and including the date
on which any such Registration Default shall occur to, but excluding, the
earlier of (1) the date on which all Registration Defaults have been cured or
(2) the date on which all the Notes and Exchange Notes otherwise become freely
transferable by Holders other than affiliates of the Issuers and the Guarantors
without further registration under the Securities Act.
Notwithstanding the foregoing, (1) the amount of Liquidated Damages payable
shall not increase because more than one Registration Default has occurred and
is pending and (2) a Holder of Notes or Exchange Notes who is not entitled to
the benefits of the Shelf Registration Statement (i.e., such Holder has not
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elected to include information) shall not be entitled to Liquidated Damages with
respect to a Registration Default that pertains to the Shelf Registration
Statement.
(b) So long as Notes remain outstanding, the Issuers shall
notify the Trustee within five Business Days after each and every date on which
an event occurs in respect of which Liquidated Damages is required to be paid.
Any amounts of Liquidated Damages due pursuant to clauses (a)(i), (a)(ii),
(a)(iii) or (a)(iv) of this Section 4 will be payable in cash semi-annually on
each Interest Payment Date (each a "Damages Payment Date"), commencing with the
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first such date occurring after any such Liquidated Damages commence to accrue,
to Holders to whom regular interest is payable on such Damages Payment Date with
respect to Notes that are Transfer Restricted Securities with respect to a
Registration Default arising out of the Exchange Offer Registration Statement,
or Holders of Notes described in Section 2(c)(iii) with respect to a
Registration Default arising out of a Shelf Registration Statement.
Section 5. Registration Procedures
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In connection with the filing of any Registration Statement
pursuant to Section 2 or 3 hereof, the Issuers and the Guarantors shall effect
such registrations to permit the sale of the securities covered thereby in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto and in connection with any Registration Statement filed by the
Issuers hereunder, the Issuers and the Guarantors shall:
(a) Prepare and file with the Commission the Registration
Statement or Registration Statements prescribed by Section 2 or 3 hereof,
and use their respective commercially reasonable efforts with respect to
the Exchange Offer Registration Statement and their respective best efforts
with respect to the Shelf Registration Statement, to cause each such
Registration Statement to become effective and remain effective as provided
herein; provided, however, that if (1) such filing is pursuant to Section 3
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hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Ex-
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change Notes during the Applicable Period relating thereto, then solely
before filing any Registration Statement or Prospectus or any amendments or
supplements thereto (other than any filing of any periodic report under the
Securities Exchange Act of 1934, as amended, which shall not be deemed to
be an amendment or supplement thereto for purposes of this Section 5(a)),
the Issuers and the Guarantors shall furnish to and afford the Holders of
Transfer Restricted Securities covered by such Registration Statement or
each such Participating Broker-Dealer, as the case may be, its counsel (if
such counsel is known to the Issuers) and the managing underwriters, if
any, in each case subject to compliance with applicable law and subject to
customary confidentiality arrangements, a reasonable opportunity to review
copies of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to be
filed (in each case at least five Business Days prior to such filing or
such later date as is reasonable under the circumstances). Neither the
Issuers nor any Guarantor shall file any Registration Statement or
Prospectus or any amendments or supplements thereto if the Holders of a
majority in aggregate principal amount of each series of Notes constituting
Transfer Restricted Securities covered by such Registration Statement, or
any such Participating Broker-Dealer, as the case may be, its counsel, or
the managing underwriters, if any, shall reasonably object on a timely
basis.
(b) Prepare and file with the Commission such amendments and
post-effective amendments to each Shelf Registration Statement or Exchange
Offer Registration Statement, as the case may be, as may be necessary to
keep such Registration Statement continuously effective for the
Effectiveness Period or the Applicable Period, as the case may be; cause
the related Prospectus to be supplemented by any Prospectus supplement
required by applicable law, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in force) promulgated under the
Securities Act; and comply with the provisions of the Securities Act and
the Exchange Act applicable to it with respect to the disposition of all
securities covered by such Registration Statement as so amended or in such
Prospectus as so supplemented and with respect to the subsequent resale of
any securities being sold by a Participating Broker-Dealer covered by any
such Prospectus, in each case, in accordance with the intended methods of
distribution set forth in such Registration Statement or Prospectus, as so
amended.
(c) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period relating thereto from whom
the Issuers have received written notice that such Broker-Dealer will be a
Participating Broker-Dealer in the applicable Exchange Offer, notify the
selling Holders, or each such Participating Broker-Dealer, as the case may
be, their counsel and the managing underwriters, if any, as promptly as
possible, and, if requested by any such Person, confirm such notice in
writing, (i) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same has
become effective under the Securities Act (including in such notice a
written statement that any Holder may, upon request, obtain, at the sole
expense of the Issuers, one conformed copy of such Registration Statement
or post-effective amendment including financial statements and schedules,
documents incorporated or deemed to be incorporated by reference
-12-
and exhibits), (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus or the
initiation of any proceedings for that purpose, (iii) if at any time when a
Prospectus is required by the Securities Act to be delivered in connection
with sales of Transfer Restricted Securities or resales of Exchange Notes
by Participating Broker-Dealers the representations and warranties of the
Issuers and the Guarantors contained in any agreement (including any
underwriting agreement) contemplated by Section 5(m)(i) hereof cease to be
true and correct in all material respects, (iv) of the receipt by the
Issuers of any notification with respect to the suspension of the
qualification or exemption from qualification of a Registration Statement
or any of the Transfer Restricted Securities or the Exchange Notes for
offer or sale in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose, (v) of the happening of any event, the
existence of any condition or any information becoming known to the Issuers
or the Guarantors that makes any statement made in such Registration
Statement or related Prospectus or any document incorporated or deemed to
be incorporated therein by reference untrue in any material respect or that
requires the making of any changes in or amendments or supplements to such
Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
that in the case of the Prospectus, it will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and (vi)
of the Issuers' and the Guarantors' determination that a post-effective
amendment to a Registration Statement would be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, use their respective
reasonable best efforts to prevent the issuance of any order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of a Prospectus or suspending the qualification (or
exemption from qualification) of any of the Transfer Restricted Securities
or the Exchange Notes, as the case may be, for sale in any jurisdiction,
and, if any such order is issued, to use their respective reasonable best
efforts to obtain the withdrawal of any such order at the earliest
practicable moment.
(e) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period and if reasonably
requested by the managing underwriter or underwriters (if any), the Holders
of a majority in aggregate principal amount of each series of Notes
constituting Transfer Restricted Securities covered by such Registration
Statement or any Participating Broker-Dealer, as the case may be, (i)
promptly incorporate in such Registration Statement or Prospectus a
prospectus supplement or post-effective amendment such information as the
managing underwriter or underwriters (if any), such Holders or any
Participating Broker-Dealer, as the case may be (based upon advice
-13-
of counsel), determine is reasonably necessary to be included therein and
(ii) make all required filings of such prospectus supplement or such
post-effective amendment as soon as practicable after the Issuers have
received notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment; provided, however, that neither the
-------- -------
Issuers nor any Guarantor shall be required to take any action hereunder
that would, in the written opinion of counsel for the Issuers and the
Guarantors, violate applicable laws.
(f) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, furnish to each selling
Holder of Transfer Restricted Securities or each such Participating
Broker-Dealer, as the case may be, who so requests, its counsel and each
managing underwriter, if any, at the sole expense of the Issuers, one
conformed copy of the Registration Statement or Registration Statements and
each post-effective amendment thereto, including financial statements and
schedules, and, if requested, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, deliver to each selling
Holder of Transfer Restricted Securities or each such Participating
Broker-Dealer, as the case may be, its respective counsel, and the
underwriters, if any, at the sole expense of the Issuers, as many copies of
the Prospectus or Prospectuses (including each form of preliminary
prospectus) and each amendment or supplement thereto and any documents
incorporated by reference therein as such Persons may reasonably request;
and, subject to the last two paragraphs of this Section 5, each of the
Issuers and the Guarantors hereby consents to the use of such Prospectus
and each amendment or supplement thereto by each of the selling Holders of
Transfer Restricted Securities or each such Participating Broker-Dealer, as
the case may be, and the underwriters or agents, if any, and dealers (if
any), in connection with the offering and sale of Transfer Restricted
Securities covered by, or the sale by Participating Broker-Dealers of the
Exchange Notes pursuant to, such Prospectus and any amendment or supplement
thereto.
(h) Prior to any public offering of Transfer Restricted
Securities or Exchange Notes or any delivery of a Prospectus contained in
the Exchange Offer Registration Statement by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, use their respective reasonable best efforts to register or
qualify, and to cooperate with the selling Holders of Transfer Restricted
Securities or each such Participating Broker-Dealer, as the case may be,
the managing underwriter or underwriters, if any, and its respective
counsel in connection with the registration or qualification (or exemption
from such registration or qualification) of such Transfer Restricted
Securities or Exchange Notes, as the case may be, for offer and sale under
the securities or Blue Sky laws of such jurisdictions within the United
States as any selling Holder, Participating Broker-Dealer, or the managing
underwriter or underwriters reasonably request; provided, however, that
-------- -------
where Exchange Notes or Transfer Re-
-14-
stricted Securities are offered other than through an underwritten
offering, the Issuers and the Guarantors agree to use their respective
reasonable best efforts to cause counsel for the Issuers and the Guarantors
to perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section 5(h); keep
each such registration or qualification (or exemption therefrom) effective
during the period such Registration Statement is required to be kept
effective and do any and all other acts or things reasonably necessary or
advisable to enable the disposition in such jurisdictions of such Exchange
Notes or Transfer Restricted Securities covered by the applicable
Registration Statement; provided, however, that neither the Issuers nor any
-------- -------
Guarantor shall be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any action that
would subject it to general service of process in any such jurisdiction
where it is not then so subject or (C) subject itself to taxation in excess
of a nominal dollar amount in any such jurisdiction where it is not then so
subject.
(i) If a Shelf Registration is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Transfer Restricted
Securities and the managing underwriter or underwriters, if any, to
facilitate the timely preparation and delivery of certificates representing
Transfer Restricted Securities to be sold, which certificates shall not
bear any restrictive legends and shall be in a form eligible for deposit
with The Depository Trust Company and enable such Transfer Restricted
Securities to be in such denominations and registered in such names as the
managing underwriter or underwriters, if any, or selling Holders may
request at least three Business Days prior to any sale of such Transfer
Restricted Securities or Exchange Notes.
(j) Use their respective reasonable best efforts to cause the
Transfer Restricted Securities or Exchange Notes covered by any
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be reasonably necessary to
enable the seller or sellers thereof or the underwriter or underwriters, if
any, to consummate the disposition of such Transfer Restricted Securities
or Exchange Notes, except as may be required solely as a consequence of the
nature of such selling Holder's business, in which case the Issuers and the
Guarantors will cooperate in all reasonable respects with the filing of
such Registration Statement and the granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, upon the occurrence of
any event contemplated by Section 5(c)(v) or 5(c)(vi) hereof, as promptly
as practicable prepare and (subject to Section 5(a) and the penultimate
paragraph of this Section 5) file with the Commission, at the sole expense
of the Issuers, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference, or
file any other required document so that, as thereafter delivered to the
purchasers of the Transfer Restricted Securities being sold thereunder or
to the purchasers of the Exchange Notes to whom such Prospectus will be
delivered by a Participating Broker-Dealer, any such Prospectus will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or nec-
-15-
essary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(l) Prior to the effective date of the first Registration
Statement relating to the Transfer Restricted Securities, (i) provide the
Trustee with certificates for the Transfer Restricted Securities in a form
eligible for deposit with The Depository Trust Company and (ii) provide a
CUSIP number for the Transfer Restricted Securities.
(m) In connection with any underwritten offering of Transfer
Restricted Securities pursuant to a Shelf Registration, enter into an
underwriting agreement as is customary in underwritten offerings of debt
securities similar to the Notes and take all such other actions as are
reasonably requested by the managing underwriter or underwriters in order
to expedite or facilitate the registration or the disposition of such
Transfer Restricted Securities and, in such connection, (i) make such
representations and warranties to, and covenant with, the underwriters with
respect to the business of the Issuers, the Guarantors and their respective
subsidiaries, as then conducted (including any acquired business,
properties or entity, if applicable), and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be incorporated
by reference therein, in each case, as are customarily made by issuers to
underwriters in underwritten offerings of debt securities similar to the
Notes, and confirm the same in writing if and when requested; (ii) use
their respective reasonable best efforts to obtain the written opinions of
counsel for the Issuers and the Guarantors and written updates thereof in
form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters, addressed to the underwriters covering the
matters customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by the managing
underwriter or underwriters; (iii) use their respective reasonable best
efforts to obtain "cold comfort" letters and updates thereof in form, scope
and substance reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public accountants for the
Issuers and the Guarantors (and, if necessary, any other independent
certified public accountants of any subsidiary of the Issuers or of any
business acquired by the Issuers for which financial statements and
financial data are, or are required to be, included or incorporated by
reference in the Registration Statement), addressed to each of the
underwriters, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection with
underwritten offerings; and (iv) if an underwriting agreement is entered
into, the same shall contain indemnification provisions and procedures no
less favorable than those set forth in Section 7 hereof (or such other
provisions and procedures acceptable to Holders of a majority in aggregate
principal amount of Transfer Restricted Securities covered by such
Registration Statement and the managing underwriter or underwriters or
agents) with respect to all parties to be indemnified pursuant to said
Section; provided that neither the Issuers nor any Guarantor shall be
--------
required to provide indemnification to any underwriter selected in
accordance with the provisions of Section 9 hereof with respect to
information relating to such underwriter furnished in writing to the
Issuers by or on behalf of such underwriter expressly for inclusion in such
Registration Statement. The above shall be done at each closing under such
underwriting agreement, or as and to the extent required thereunder.
-16-
(n) If (1) a Shelf Registration is filed pursuant to Section 3 hereof
or (2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, make available for inspection
by any selling Holder of such Transfer Restricted Securities being sold or
each such Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Transfer Restricted Securities, if
any, and any attorney, accountant or other agent retained by any such
selling Holder or each such Participating Broker-Dealer, as the case may
be, or underwriter (collectively, the "Inspectors"), at the offices where
----------
normally kept, during reasonable business hours, all financial and other
records, pertinent corporate documents and instruments of the Issuers, the
Guarantors and their subsidiaries (collectively, the "Records") as shall be
-------
reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the officers, directors and employees
of the Issuers and the Guarantors and subsidiaries to supply all
information reasonably requested by any such Inspector in connection with
such Registration Statement and Prospectus. Each Inspector shall agree in
writing that it will keep the Records confidential and that it will not
disclose, or use in connection with any market transactions in violation of
any applicable securities laws, any Records that each of the Issuers and
the Guarantors determines, in good faith, to be confidential and that it
notifies the Inspectors in writing are confidential unless (i) the
disclosure of such Records is necessary to avoid or correct a misstatement
or omission in such Registration Statement or Prospectus, (ii) the release
of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction, (iii) disclosure of such information is
necessary or advisable in the opinion of counsel for an Inspector in
connection with any action, claim, suit or proceeding, directly or
indirectly, involving or potentially involving such Inspector and arising
out of, based upon, relating to, or involving this Agreement or the
Purchase Agreement, or any transactions contemplated hereby or thereby or
arising hereunder or thereunder, or (iv) the information in such Records
has been made generally available to the public, other than by the
Inspectors; provided, however, that (i) each Inspector shall agree to use
-------- -------
reasonable best efforts to provide notice to the Issuers and the Guarantors
of the potential disclosure of any information by such Inspector pursuant
to clause (i), (ii) or (iii) of this sentence to permit such Issuer or such
Guarantor to obtain a protective order (or waive the provisions of this
paragraph (n)) and (ii) each such Inspector shall take such actions as are
reasonably necessary to protect the confidentiality of such information (if
practicable) to the extent such action is otherwise not inconsistent with,
an impairment of or in derogation of the rights and interests of the Holder
or any Inspector.
(o) Provide an indenture trustee for the Transfer Restricted
Securities or the Exchange Notes, as the case may be, and cause the
applicable Indenture or the trust indenture provided for in Section 2(a)
hereof to be qualified under the TIA not later than the effective date of
the Exchange Offer or the first Registration Statement relating to the
Transfer Restricted Securities; and in connection therewith, cooperate with
the trustee under any such indenture and the Holders of Transfer Restricted
Securities or Exchange Notes, as applicable, to effect such changes to such
indenture as may be required for such indenture to be so qualified in
accordance with the terms of the TIA; and execute, and use their respective
reasonable best efforts to cause such trustee to execute, all documents as
may be required to effect such
-17-
changes, and all other forms and documents required to be filed with the
Commission to enable such indenture to be so qualified in a timely manner.
(p) Comply with all applicable rules and regulations of the
Commission and make generally available to the Ventas, Inc.'s'
securityholders earnings statements satisfying the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after the end
of any 12-month period (or 90 days after the end of any 12-month period if
such period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Transfer Restricted Securities or Exchange Notes are sold
to underwriters in a firm commitment or best efforts underwritten offering
and (ii) if not sold to underwriters in such an offering, commencing on the
first day of the first fiscal quarter of the Ventas, Inc. after the
effective date of a Registration Statement, which statements shall cover
said 12-month periods consistent with the requirements of Rule 158.
(q) Upon the request of a Holder, upon consummation of the Exchange
Offer or a Private Exchange, use their respective reasonable best efforts
to obtain an opinion of counsel for the Issuers and the Guarantors
addressed to the Trustee for the benefit of all Holders of Transfer
Restricted Securities participating in the Exchange Offer or the Private
Exchange, as the case may be, that the Exchange Notes or Private Exchange
Notes, as the case may be, and the related indenture constitute legal,
valid and binding obligations of the Issuers and the Guarantors,
enforceable against each of the Issuers and the Guarantors in accordance
with its respective terms, subject to customary exceptions and
qualifications.
(r) If the Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Transfer Restricted Securities by Holders to the
Issuers (or to such other Person as directed by the Issuers) in exchange
for the Exchange Notes or the Private Exchange Notes, as the case may be,
mark, or cause to be marked, on such Transfer Restricted Securities that
such Transfer Restricted Securities are being cancelled in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may be; provided
--------
that in no event shall such Transfer Restricted Securities be marked as
paid or otherwise satisfied.
(s) Cooperate with each seller of Transfer Restricted Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Transfer Restricted Securities and
their respective counsel in connection with any filings required to be made
with the National Association of Securities Dealers, Inc. (the "NASD").
(t) Use their respective reasonable best efforts to take all other
steps reasonably necessary or advisable to effect the registration of the
Exchange Notes and/or Transfer Restricted Securities covered by a
Registration Statement contemplated hereby.
The Issuers and the Guarantors may require each seller of Transfer
Restricted Securities or Exchange Notes as to which any registration is being
effected to furnish to the Issuers and the Guarantors such information regarding
such seller and the distribution of such Transfer Restricted Securities or
Exchange Notes as the Issuers and the Guarantors may, from time to time,
reasonably re-
-18-
quest. The Issuers and the Guarantors may exclude from such registration the
Transfer Restricted Securities of any seller so long as such seller fails to
furnish such information within a reasonable time after receiving such request
and in the event of such an exclusion, neither Issuers nor any Guarantor shall
have any further obligation under this Agreement (including, without limitation,
the obligations under Section 4) with respect to such seller or any subsequent
Holder of such Transfer Restricted Securities. Each seller as to which any Shelf
Registration is being effected agrees to furnish promptly to the Issuers and the
Guarantors all information required to be disclosed in order to make any
information previously furnished to the Issuers and the Guarantors by such
seller not materially misleading.
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Issuers, then such Holder shall
have the right to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such Holder, to the effect that the holding
by such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the securities covered thereby and that
such holding does not imply that such Holder will assist in meeting any future
financial requirements of the Issuers, or (ii) in the event that such reference
to such Holder by name or otherwise is not required by the Securities Act or any
similar federal statute then in force, the deletion of the reference to such
Holder in any amendment or supplement to the applicable Registration Statement
filed or prepared subsequent to the time that such reference ceases to be
required.
Each Holder of Transfer Restricted Securities and each Participating
Broker-Dealer agrees by acquisition of such Transfer Restricted Securities or
Exchange Notes that, upon actual receipt of any notice from the Issuers (x) of
the happening of any event of the kind described in Section 5(c)(ii), 5(c)(iii),
5(c)(iv), 5(c)(v) or 5(c)(vi) hereof, or (y) that the Board of Directors of
Ventas, Inc. (the "Board of Directors") has resolved that the Ventas Inc. and
------------------
its subsidiaries have a bona fide business purpose for doing so, then the
Issuers and the Guarantors may delay the filing or the effectiveness of the
Exchange Offer Registration Statement or the Shelf Registration Statement (if
not then filed or effective, as applicable) and shall not be required to
maintain the effectiveness thereof or amend or supplement the Exchange Offer
Registration Statement or the Shelf Registration, in all cases, for a period (a
"Delay Period") expiring upon the earlier to occur of (i) in the case of the
------------
immediately preceding clause (x), such Holder's or Participating Broker-Dealer's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 5(k) hereof or until it is advised in writing (the "Advice") by the
------
Issuers and the Guarantors that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or supplements thereto or
(ii) in the case of the immediately preceding clause (y), the date which is the
earlier of (A) the date on which such business purpose ceases to interfere with
the Ventas, Inc.'s or its subsidiaries' obligations to file or maintain the
effectiveness of any such Registration Statement pursuant to this Agreement or
(B) 60 days after the Issuers and Guarantors notify the Holders of such good
faith determination. There shall not be more than 60 days of Delay Periods
during any 12-month period. Each of the Effectiveness Period and the Applicable
Period, if applicable, shall be extended by the number of days during any Delay
Period. Any Delay Period will not alter the obligations of the Issuers and
Guarantors to pay Liquidated Damages under the circumstances set forth in
Section 4 hereof.
In the event of any Delay Period pursuant to clause (y) of the
preceding paragraph, notice shall be given as soon as practicable after the
Board of Directors makes such a determination of
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the need for a Delay Period and shall state, to the extent practicable, an
estimate of the duration of such Delay Period and shall advise the recipient
thereof of the agreement of such Holder provided in the next succeeding
sentence. Each Holder, by his acceptance of Transfer Restricted Securities,
agrees that during any Delay Period, each Holder will discontinue disposition of
such Notes or Exchange Notes covered by such Registration Statement or
Prospectus or Exchange Notes to be sold by such Holder or Participating
Broker-Dealer, as the case may be.
Section 6. Registration Expenses
---------------------
All fees and expenses incident to the Issuers' and the Guarantors'
performance of or compliance with this Agreement (other than any underwriting
discounts or commissions) shall be borne by the Issuers, whether or not the
Exchange Offer Registration Statement or the Shelf Registration is filed or
becomes effective or the Exchange Offer is consummated, including, without
limitation, (i) all registration and filing fees (including, without limitation,
(A) fees with respect to filings required to be made with the NASD in connection
with an underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Transfer Restricted Securities or Exchange Notes and determination of the
eligibility of the Transfer Restricted Securities or Exchange Notes for
investment under the laws of such jurisdictions (x) where the holders of
Transfer Restricted Securities are located, in the case of an Exchange Offer, or
(y) as provided in Section 5(h) hereof, in the case of a Shelf Registration or
in the case of Exchange Notes to be sold by a Participating Broker-Dealer during
the Applicable Period)), (ii) printing expenses, including, without limitation,
expenses of printing certificates for Transfer Restricted Securities or Exchange
Notes in a form eligible for deposit with The Depository Trust Company and of
printing prospectuses if the printing of prospectuses is requested by the
managing underwriter or underwriters, if any, or by the Holders of a majority in
aggregate principal amount each series of Notes constituting Transfer Restricted
Securities included in any Registration Statement or in respect of Exchange
Notes to be sold by any Participating Broker-Dealer during the Applicable
Period, as the case may be, (iii) messenger, telephone and delivery expenses,
(iv) fees and disbursements of counsel for the Issuers and the Guarantors and,
in the case of a Shelf Registration Statement, reasonable fees and disbursements
of one special counsel for all of the sellers of Transfer Restricted Securities
(exclusive of any counsel retained pursuant to Section 7 hereof), not to exceed
$50,000 in the aggregate (v) fees and disbursements of all independent certified
public accountants referred to in Section 5(m)(iii) hereof (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (vi) Securities Act liability
insurance, if the Issuers desire such insurance, (vii) fees and expenses of all
other Persons retained by the Issuers and the Guarantors, (viii) internal
expenses of the Issuers and the Guarantors (including, without limitation, all
salaries and expenses of their respective officers and employees performing
legal or accounting duties), (ix) the expense of any annual audit, (x) the fees
and expenses incurred in connection with the listing of the securities to be
registered on any securities exchange, and the obtaining of a rating of the
securities, in each case, if applicable, and (xi) the expenses relating to
printing, word processing and distributing all Registration Statements,
underwriting agreements, indentures and any other documents necessary in order
to comply with this Agreement. Notwithstanding the foregoing or anything to the
contrary, each Holder shall pay all underwriting discounts and commissions of
any underwriters with respect to any Transfer Restricted Securities sold by or
on behalf of it.
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Section 7. Indemnification
---------------
(a) The Issuers and the Guarantors agree to indemnify and hold
harmless each Holder of Transfer Restricted Securities and each Participating
Broker-Dealer selling Exchange Notes during the Applicable Period, each Person,
if any, who controls any such Person within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, the agents, employees,
officers and directors of each Holder and each such Participating Broker-Dealer
and the agents, employees, officers and directors of any such controlling Person
(each, a "Participant") from and against any and all losses, liabilities,
-----------
claims, damages and expenses (including, but not limited to, reasonable
attorneys' fees and any and all reasonable out-of-pocket expenses actually
incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever, and any and all reasonable
amounts paid in settlement of any claim or litigation (in the manner set forth
in clause (c) below)) (collectively, "Losses") to which they or any of them may
------
become subject under the Securities Act, the Exchange Act or otherwise insofar
as such Losses (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement (or any amendment thereto) or Prospectus (as amended
or supplemented if either the Issuers or the Guarantors shall have furnished any
amendments or supplements thereto) or any preliminary prospectus, or caused by,
arising out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the case of the Prospectus, in the light of the circumstances under
which they were made, not misleading, provided that (i) the foregoing indemnity
--------
shall not be available to any Participant insofar as such Losses are caused by
any untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to such Participant
furnished to the Issuers in writing by or on behalf of such Participant
expressly for use therein, and (ii) that the foregoing indemnity with respect to
any preliminary prospectus shall not inure to the benefit of any Participant
from whom the Person asserting such Losses purchased Transfer Restricted
Securities if (x) it is decided in a final judgment in the related proceeding
that such Participant failed to send or give a copy of the Prospectus (as
amended or supplemented if such amendment or supplement was furnished to such
Participant prior to the written confirmation of such sale) to such Person with
or prior to the written confirmation of such sale, if required by applicable
law, and (y) the untrue statement or omission or alleged untrue statement or
omission was completely corrected in the Prospectus (as amended or supplemented
if amended or supplemented as aforesaid) and such Prospectus does not contain
any other untrue statement or omission or alleged untrue statement or omission
that was the subject matter of the related proceeding. This indemnity agreement
will be in addition to any liability that the Issuers and the Guarantors may
otherwise have, including, but not limited to, liability under this Agreement.
(b) Each Participant agrees, severally and not jointly, to indemnify
and hold harmless the Issuers and the Guarantors, and each Person, if any, who
controls the Issuers or the Guarantors within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, and each of its agents,
employees, officers and directors and the agents, employees, officers and
directors of any such controlling Person from and against any Losses to which
they or any of them may become subject under the Securities Act, the Exchange
Act or otherwise insofar as such Losses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (or any amendment thereto)
or Prospectus (as
-21-
amended or supplemented if either the Issuers or the Guarantors shall have
furnished any amendments or supplements thereto) or any preliminary prospectus,
or caused by, arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in the case of the Prospectus, in the light of the
circumstances under which they were made, not misleading, in each case to the
extent, but only to the extent, that any such Loss arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information relating to
such Participant furnished in writing to the Issuers by or on behalf of such
Participant expressly for use therein.
(c) Promptly after receipt by an indemnified party under subsection
7(a) or 7(b) above of notice of the commencement of any action, suit or
proceeding (collectively, an "action"), such indemnified party shall, if a claim
------
in respect thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to be sought in
writing of the commencement of such action (but the failure so to notify an
indemnifying party shall not relieve such indemnifying party from any liability
that it may have under this Section 7 except to the extent that it has been
prejudiced in any material respect by such failure). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement of such action, the indemnifying party will be entitled to
participate in such action, and to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense of such action with counsel
reasonably satisfactory to such indemnified party. Notwithstanding the
foregoing, the indemnified party or parties shall have the right to employ its
or their own counsel in any such action, but the reasonable fees and expenses of
such counsel shall be at the expense of such indemnified party or parties unless
(i) the employment of such counsel shall have been authorized in writing by the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) the named parties to such action (including any impleaded
parties) include such indemnified party and the indemnifying party or parties
(or such indemnifying parties have assumed the defense of such action), and such
indemnified party or parties shall have reasonably concluded, that there may be
defenses available to it or them that are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such reasonable fees and expenses of counsel shall be borne by the indemnifying
parties. In no event shall the indemnifying party be liable for the fees and
expenses of more than one counsel (together with appropriate local counsel) at
any time for all indemnified parties in connection with any one action or
separate but substantially similar or related actions arising in the same
jurisdiction out of the same general allegations or circumstances. Any such
separate firm for the Participants shall be designated in writing by
Participants who sold a majority in interest of Transfer Restricted Securities
sold by all such Participants and shall be reasonably acceptable to the Issuers
and the Guarantors, and when the Issuers and Guarantors are the indemnified
party, any such separate firm for the Issuers and the Guarantors, their
respective affiliates, officers, directors, representatives, employees and
agents and such control Person of the Issuers or the Guarantors shall be
designated in writing by the Issuers and shall be reasonable acceptable to the
Holders. An indemnifying party shall not be liable for any settlement of any
claim or action effected without its written consent, which consent may not be
unreasonably withheld. No indemnifying party shall, without the prior written
consent of the indemni-
-22-
fied party, effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(d) In order to provide for contribution in circumstances in which
the indemnification provided for in this Section 7 is for any reason held to be
unavailable from the indemnifying party, or is insufficient to hold harmless a
party indemnified under this Section 7, each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of such
aggregate Losses (i) in such proportion as is appropriate to reflect the
relative benefits received by each indemnifying party, on the one hand, and each
indemnified party, on the other hand, from the sale of the Notes to the Initial
Purchasers or the resale of the Transfer Restricted Securities by such Holder,
as applicable, or (ii) if such allocation is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of each indemnified
party, on the one hand, and each indemnifying party, on the other hand, in
connection with the statements or omissions that resulted in such Losses, as
well as any other relevant equitable considerations. The relative benefits
received by the Issuers and the Guarantors, on the one hand, and each
Participant, on the other hand, shall be deemed to be in the same proportion as
(x) the total proceeds from the sale of the Notes to the Initial Purchasers (net
of discounts and commissions but before deducting expenses) received by the
Issuers and the Guarantors are to (y) the total net profit received by such
Participant in connection with the sale of the Transfer Restricted Securities.
The relative fault of the parties shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Issuers and the Guarantors or such Participant and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission or alleged statement or
omission.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation that does not take into account the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 7, (i) in no case shall any Participant be required to contribute
any amount in excess of the amount by which the net profit received by such
Participant in connection with the sale of the Transfer Restricted Securities
exceeds the amount of any damages that such Participant has otherwise been
required to pay by reason of any untrue or alleged untrue statement or omission
or alleged omission and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action against such party in respect of
which a claim for contribution may be made against another party or parties
under this Section 7, notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any obligation it
or they may have under this Section 7 or otherwise, except to the extent that it
has been prejudiced in any material respect by such failure; provided, however,
-------- -------
that no additional notice shall be required with respect to any action for which
notice has been given under this Section 7 for purposes of indemnification.
Anything in this section to the contrary notwithstanding, no party shall be
liable for contribution with respect to any
-23-
action or claim settled without its written consent, provided, however, that
-------- -------
such written consent was not unreasonably withheld.
Section 8. Rules 144 and 144A
------------------
Each Issuer and each Guarantor covenants that it will file the reports
required, if any, to be filed by such Issuer or such Guarantor under the
Securities Act and the Exchange Act and the rules and regulations adopted by the
Commission thereunder in a timely manner in accordance with the requirements of
the Securities Act and the Exchange Act and, if at any time such Issuer or such
Guarantor is not required to file such reports, it will, upon the request of any
Holder or beneficial owner of Transfer Restricted Securities, make available
such information necessary to permit sales pursuant to Rule 144A under the
Securities Act. Each Issuer and each Guarantor further covenants that for so
long as any Transfer Restricted Securities remain outstanding it will take such
further action as any Holder of Transfer Restricted Securities may reasonably
request from time to time to enable such Holder to sell Transfer Restricted
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144(k) and Rule 144A under the Securities
Act, as such Rules may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the Commission.
Section 9. Underwritten Registrations
--------------------------
If any of the Transfer Restricted Securities covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will manage the offering will
be selected by the Holders of a majority in aggregate principal amount of such
Transfer Restricted Securities included in such offering and shall be reasonably
acceptable to the Issuers and the Guarantors.
No Holder of Transfer Restricted Securities may participate in any
underwritten registration hereunder if such Holder does not (a) agree to sell
such Holder's Transfer Restricted Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (b) complete and execute all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
Section 10. Miscellaneous
--------------
(a) No Inconsistent Agreements. Neither the Issuers nor any Guarantor
--------------------------
has, as of the date hereof, and shall have, after the date of this Agreement,
entered into any agreement with respect to any of its securities that is
inconsistent with the rights granted to the Holders of Transfer Restricted
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not conflict with and are not
inconsistent with, in any material respect, the rights granted to the holders of
any of the Issuers' and the Guarantors' other issued and outstanding securities
under any such agreements. Neither the Issuers nor any Guarantor has entered and
will enter into any agreement with respect to any of its securities which will
grant to any Person piggy-back registration rights with respect to any
Registration Statement.
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(b) Adjustments Affecting Transfer Restricted Securities. The
----------------------------------------------------
Issuers and the Guarantors shall not, directly or indirectly, take any action
with respect to the Transfer Restricted Securities as a class that would
adversely affect the ability of the Holders of Transfer Restricted Securities to
include such Transfer Restricted Securities in a registration undertaken
pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement
----------------------
may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given except pursuant to a
written agreement duly signed and delivered by (I) the Issuers and (II)(A) the
Holders of not less than a majority in aggregate principal amount of each series
of the then outstanding Transfer Restricted Securities and (B) in circumstances
that would adversely affect the Participating Broker-Dealers, the Participating
Broker-Dealers holding not less than a majority in aggregate principal amount of
each series of the Exchange Notes held by all Participating Broker-Dealers;
provided, however, that Section 7 and this Section 10(c) may not be amended,
- -------- -------
modified or supplemented except pursuant to a written agreement duly signed and
delivered by the Issuers, the Guarantors, each Holder and each Participating
Broker-Dealer (including any Person who was a Holder or Participating
Broker-Dealer of Transfer Restricted Securities or Exchange Notes, as the case
may be, disposed of pursuant to any Registration Statement) affected by any such
amendment, modification, supplement or waiver. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders of a series of Transfer
Restricted Securities whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect, impair, limit or
compromise the rights of Holders of another series of Transfer Restricted
Securities may be given by Holders of at least a majority in aggregate principal
amount of the series of Transfer Restricted Securities being sold pursuant to
such Registration Statement.
(d) Notices. All notices and other communications (including,
-------
without limitation, any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or telecopier:
(i) if to a Holder of Transfer Restricted Securities or any
Participating Broker-Dealer, at the most current address of such Holder
or Participating Broker-Dealer, as the case may be, set forth on the
records of the registrar under the 2009 Note Indenture or the 2012 Note
Indenture, as applicable.
(ii) if to the Issuers or the Guarantors, at the address as
follows:
Ventas, Inc.
4360 Brownsboro Road
Suite 115
Louisville, Kentucky 40207-1642
Telephone: (502) 357-9000
Fax: (502)357-9001
Attention: General Counsel
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(iii) if to the Initial Purchasers, at the address as follows:
UBS Warburg LLC,
299 Park Avenue
New York, New York 10171
Telephone: (212) 821-3000
Fax number: (212) 821-6890
Attention: Syndicate Department
With a copy to (which shall not constitute
notice):
UBS Warburg LLC,
677 Washington Boulevard
Stamford, Connecticut 06901
Telephone: (203) 719-3000
Fax number: (203) 719-7317
Attention: Legal Affairs (High Yield Group)
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by the recipient's telecopier machine, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address and in the manner specified in the 2009 Note Indenture or the 2012
Note Indenture, as applicable.
(e) Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of and be binding upon the successors and assigns of each of the parties
hereto, the Holders and the Participating Broker-Dealers; provided, however,
-------- -------
that this Agreement shall not inure to the benefit of or be binding upon a
successor or assign of a Holder unless and to the extent such successor or
assign holds Transfer Restricted Securities.
(f) Counterparts. This Agreement may be executed in any number
------------
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
--------
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK.
-26-
(i) Severability. If any term, provision, covenant or
------------
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Securities Held by the Issuers or Its Affiliates. Whenever
------------------------------------------------
the consent or approval of Holders of a specified percentage of each series of
Notes constituting Transfer Restricted Securities is required hereunder,
Transfer Restricted Securities held by the Issuers or any of its affiliates (as
such term is defined in Rule 405 under the Securities Act) shall not be counted
in determining whether such consent or approval was given by the Holders of such
required percentage.
(k) Third-Party Beneficiaries. Holders and beneficial owners
-------------------------
of Transfer Restricted Securities and Participating Broker-Dealers are intended
third-party beneficiaries of this Agreement, and this Agreement may be enforced
by such Persons. No other Person is intended to be, or shall be construed as, a
third-party beneficiary of this Agreement.
(l) Entire Agreement. This Agreement, together with the
----------------
Purchase Agreement and the Indentures, is intended by the parties as a final and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein and any and all prior
oral or written agreements, representations, or warranties, contracts,
understandings, correspondence, conversations and memoranda between the Holders
on the one hand and the Issuers and the Guarantors on the other, or between or
among any agents, representatives, parents, subsidiaries, affiliates,
predecessors in interest or successors in interest with respect to the subject
matter hereof and thereof are merged herein and replaced hereby.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
VENTAS REALTY, LIMITED PARTNERSHIP
By: VENTAS, INC.
Its: General Partner
By: /s/ John C. Thompson
-----------------------------------
Name: John C. Thompson
Title: Executive Vice President
VENTAS CAPITAL CORPORATION
By: /s/ John C. Thompson
-----------------------------------
Name: John C. Thompson
Title: Executive Vice President
VENTAS INC.
By: /s/ John C. Thompson
-----------------------------------
Name: John C. Thompson
Title: Executive Vice President
VENTAS LP REALTY, L.L.C.
By: VENTAS, INC.
Its: Sole Member
By: /s/ John C. Thompson
-----------------------------------
Name: John C. Thompson
Title: Executive Vice President
UBS WARBURG, LLC,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
BANC OF AMERICA SECURITIES LLC
J.P. MORGAN SECURITIES INC.
CREDIT LYONNAIS SECURITIES (USA) INC.
CIBC WORLD MARKETS CORP.
U.S. BANCORP PIPER JAFFRAY INC.
By: UBS Warburg LLC
/S/ Michael Leder
By: _______________________________
Name: Michael Leder
Title: Managing Director
Schedule A
GUARANTORS
Ventas, Inc.
Ventas LP Realty, L.L.C.