EXHIBIT 4.14
ENVIRONMENTAL INDEMNITY AGREEMENT
THIS ENVIRONMENTAL INDEMNITY AGREEMENT (this "Agreement"), made as of
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December 12, 2001, by VENTAS FINANCE I, LLC, a Delaware limited liability
company ("Borrower"), and VENTAS, INC., a Delaware corporation ("Guarantor";
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together with the Borrower, collectively, the "Indemnitors"; and each,
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individually, an "Indemnitor"), each having an office at c/o Ventas, Inc., 4360
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Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000-0000 in favor of XXXXXXX
XXXXX MORTGAGE LENDING, INC., a Delaware corporation, having an office c/o
Merrill Xxxxx & Co., One World Financial Center, North Tower, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (together with and its successors, transferees and
assigns, "Lender").
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RECITALS:
WHEREAS, the Borrower owns fee simple interests in and to those
properties described on Exhibit A attached hereto (said properties, together
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with all structures, buildings and improvements now or hereafter located
thereon, collectively, the "Properties", and each individually a "Property");
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WHEREAS, Lender is prepared to make a loan (the "Loan") to the
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Borrower in the principal amount of $225,000,000 pursuant to a Loan and Security
Agreement, dated of even date herewith (as amended, modified or restated, the
"Loan Agreement"), between the Borrower and Lender, which Loan shall be
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evidenced by a Promissory Note, dated of even date herewith (as amended,
modified, or restated and any replacements or substitutes therefor, the "Note"),
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of even principal amount given by the Borrower to Lender, and secured by, among
other things, the Mortgages (as defined in the Loan Agreement), from the
Borrower to Lender encumbering the Properties. The Loan Agreement, the Note, the
Mortgages, this Agreement and any other agreement or instrument now or hereafter
evidencing or securing the Loan are hereinafter collectively called the "Loan
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Documents";
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WHEREAS, Guarantor will derive substantial benefits from Lender's
making the Loan to the Borrower;
WHEREAS, as a condition to making the Loan to the Borrower, Lender
requires the Indemnitors to provide certain indemnities concerning Hazardous
Materials (as hereinafter defined); and
WHEREAS, to induce Lender to consummate the above described
transaction, the Indemnitors have agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Indemnitors hereby represent and warrant to, and covenant
with, Lender as follows:
1. Each of the Indemnitors represents and warrants that to its knowledge (as
hereinafter defined), except as may be set forth in the Environmental
Reports (as defined in the Loan Agreement) and except for materials
customarily used or stored in connection with the
operation and maintenance of properties similar to the Properties,
which materials at the Properties exist only in reasonable quantities
and are stored, contained, transported, used, released and disposed of
reasonably and without material violation of Hazardous Material Laws:
(a) no Hazardous Materials are or were stored or located, and no
underground storage tanks or surface impoundments used for storing
Hazardous Materials are or were located on any of the Properties or on
adjacent parcels of real property, and (b) no part of such real
property or such adjacent parcels of real property, including
groundwater located therein or thereunder, is presently contaminated by
Hazardous Materials. Any and all references in this Agreement to
"knowledge" of any Indemnitor shall have the same meaning herein as
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provided in the Loan Agreement.
2. (a) Borrower shall at all times comply, and shall exercise its rights
under the Master Lease to cause Lessee to at all times comply, in all
material respects with all applicable Hazardous Materials Laws.
Borrower shall not and shall use reasonable efforts to exercise its
rights under the Master Lease to ensure that Lessee shall not: (i)
violate any applicable Hazardous Materials Law in any material respect;
or (ii) generate, use, transport, handle, store, release or dispose of
any Hazardous Material in or into, on or onto, or from any Property
(except in accordance with applicable law); or (iii) permit any Lien
imposed pursuant to any Hazardous Materials Law to be imposed or to
remain on any Property (except to the extent same is being contested in
accordance with Section 5.3(B) of the Loan Agreement).
(b) Upon obtaining knowledge of the presence, storage, use,
disposal, transportation, active or passive migration, release or discharge of
any Hazardous Materials on, under or about any Property in violation of any
Hazardous Materials Laws, Borrower shall, at its sole cost and expense, promptly
provide to Lender such reports, certificates, engineering studies or other
written material or data as Lender may reasonably require, and promptly take and
diligently prosecute, or cause Lessee to promptly take and diligently prosecute,
any and all remedial actions required under applicable Hazardous Materials Laws.
In the event Borrower undertakes any remedial action with respect to any
Hazardous Materials on, under or about any Property, Borrower shall conduct and
complete such remedial action in material compliance with all applicable
Hazardous Materials Laws, and materially in accordance with the applicable
policies, orders and directives of all federal, state and local governmental
authorities.
(c) If Lender at any time has a reasonable basis to believe that
a violation of any Hazardous Materials Law related to any Property has occurred
and is continuing or that any basis for an Environmental Claim affecting
Borrower or Lessee or related to any Property exists, then Borrower agrees,
promptly after written request from Lender, to provide Lender with such reports,
certificates, engineering studies or other written material or data as Lender
may reasonably require so as to satisfy Lender that Borrower, Lessee and such
Property are in material compliance with all applicable Hazardous Materials Laws
(unless any such reports, certificates, studies or materials disclose any
violation of Hazardous Materials Laws in which event the provisions of Section
5.7(B) of the Loan Agreement shall apply).
3. Each of the Indemnitors covenants and agrees at its sole cost and
expense, to protect, defend, indemnify and hold Lender, its directors,
officers, shareholders, employees, agents, successors and assigns
harmless from and against any and all losses, liabilities,
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obligations, claims, damages, penalties, causes of action, fines,
costs and expenses including, without limitation, reasonable
attorneys' fees, expenses and litigation costs, sums paid in
settlement of claims and any costs and expenses incurred in enforcing
this Agreement or collecting any sums due hereunder, other than those
arising solely from the gross negligence or willful misconduct of
Lender (collectively, the "Indemnified Claims"), directly or
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indirectly imposed upon or incurred by or asserted against Lender, its
directors, officers, shareholders, employees, agents, successors and
assigns (collectively, "Indemnified Parties"), arising out of or in
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connection with (1) any violation of Hazardous Materials Law relating
to any Property; (2) any lawsuit brought or threatened, settlement
reached, or government order relating to any Hazardous Materials on,
in, under or affecting any Property; (3) the use, generation,
refining, manufacture, transportation, transfer, production,
processing, storage, handling, or treatment of any Hazardous Materials
on, under, from, or affecting any Property or any other property
affecting the Properties; (4) the presence, disposal, dumping, escape,
seepage, leakage, spillage, discharge, emission, pumping, emptying,
injecting, leaching, pouring, release, or threatened release of any
Hazardous Materials on, under, from, or affecting any Property or any
other property affecting the Properties; (5) any remedial action, or
imposition of standards of conduct, including the clean-up,
encapsulation, treatment, abatement, removal and/or disposal of any
Hazardous Materials on, under, from or affecting any Property or any
other property affecting the Properties to the extent required by any
Hazardous Materials Law; (6) any personal injury (including wrongful
death) or property damage (real or personal) arising out of or related
to such Hazardous Materials; or (7) a material misrepresentation or
material inaccuracy in any representation or warranty contained in
this Agreement or in Section 4.16 of the Loan Agreement; or (8) a
material breach of or failure to perform any covenant made by any
Indemnitor in this Agreement; provided, however, that the Indemnitors
shall be relieved of their obligations to an Indemnified Party under
this subsection with respect to any Indemnified Claim arising from (x)
the gross negligence or willful misconduct of such Indemnified Party
as determined by a court of competent jurisdiction or (y) any of the
matters set forth in clauses (1) through (6) above occurring after the
date of transfer of title to such Property to any Indemnified Party or
third party by the foreclosure of the related Mortgage, deed-in-lieu
thereof, the exercise of any power of sale or otherwise (the "Transfer
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Date") and provided that, in the case of clause (y) above, the
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Indemnitors can prove that such Indemnified Claim did not arise from
any Hazardous Materials which existed on, in, under or affecting such
Property prior to the Transfer Date.
Each Indemnitor understands and agrees that its liability to Lender
shall arise upon the earlier to occur of (1) the discovery of the
presence of any Hazardous Materials on, under or about any Property,
whether or not the Environmental Protection Agency, any other federal
agency or any state or local environmental or other agency or
political subdivision or any court, administrative panel or tribunal
has taken or threatened any action in connection with the presence of
any Hazardous Materials or (2) the institution of any Indemnified
Claims, and not upon the realization of loss or damage.
Notwithstanding the foregoing, the presence at any Property of any
Hazardous Materials that are typically used or stored in the operation
of buildings similar to the building located on such Property, which
materials at such Property exist only in reasonable
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quantities and are stored in enclosed containers and used, released and
disposed of in compliance in all material respects with Hazardous
Materials Laws and that pose no material threat to the surrounding
environment, shall not in and of itself be deemed to be the release of
Hazardous Materials on such Property.
4. The following terms shall have the following meanings as used herein:
"Hazardous Materials" means all or any of the following: (i)
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substances, materials, compounds, wastes, products, emissions and
vapors that are defined or listed in, regulated by, or otherwise
classified pursuant to, any applicable Hazardous Materials Law as
"hazardous substances", "hazardous materials", "hazardous wastes",
"toxic substances", "pollutants", "contaminants", or any other
formulation intended to regulate, define, list or classify substances
by reason of deleterious, harmful or dangerous properties; (ii) waste
oil, oil, petroleum or petroleum derived substances; (iii) any
flammable substances or explosives or any radioactive materials; (iv)
asbestos or asbestos containing materials in any form; (v) electrical
or hydraulic equipment which contains any oil or dielectric fluid
containing polychlorinated biphenyls; (vi) radon; (vii) urea
formaldehyde; or (viii) medical waste.
"Hazardous Materials Law" means any federal, state, or local law,
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ordinance or regulation or any court judgment or order of any federal,
state or local agency or regulatory body applicable to the Borrower or
to any Property relating to industrial hygiene, human health or safety
or environmental conditions including, but not limited to, those
relating to the generation, manufacture, storage, handling,
transportation, disposal, release, emission or discharge of Hazardous
Materials, and those relating to the atmosphere, soil, surface and
ground water, wetlands, stream sediments and vegetation on, under, in
or about any Property. "Hazardous Materials Law" also shall include,
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but not be limited to, the Comprehensive Environmental Response,
Compensation and Liability Act, the Hazardous Materials Transportation
Act, the Resource Conservation and Recovery Act, the Solid Waste
Disposal Act, the Clean Water Act, the Clean Air Act, the Toxic
Substance Control Act, the Safe Drinking Water Act and the Occupational
Safety and Health Act (but only as it relates to Hazardous Materials in
the environment), and all regulations adopted in respect to the
foregoing laws.
5. This Agreement, the payment of all sums due hereunder and the
performance and discharge of each and every obligation, covenant and
agreement of the Borrower contained herein, are, and shall be deemed to
be, secured by the Mortgages.
6. The liability of the Indemnitors under this Agreement shall in no way
be limited or impaired by, and each Indemnitor hereby consents to and
agrees to be bound by, any amendment or modification of the provisions
of the Note, the Loan Agreement, the Mortgages or any other document
which evidences, secures or guarantees all or any portion of the Loan
(the "Other Security Documents"). In addition, the liability of the
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Indemnitors under this Agreement shall in no way be limited or impaired
by (i) any extensions of time for performance required by the Note, the
Mortgages or any of the Other Security Documents, (ii) any sale or
transfer of all or part of any Property (except as expressly provided
in Section 3(a) hereof), (iii) any exculpatory provision in the Note,
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the Loan Agreement, the Mortgages, or any of the Other Security
Documents limiting Lender's recourse to the Properties or other
property encumbered by the Mortgages or to any other security, or
limiting Lender's rights to a deficiency judgment against the Borrower,
(iv) the accuracy or inaccuracy of the representations and warranties
made by the Borrower under the Note, the Loan Agreement, the Mortgages
or any of the Other Security Documents or herein, (v) the release of
the Borrower or any other person from performance or observance of any
of the agreements, covenants, terms or conditions contained in any of
the Other Security Documents by operation of law, Lender's voluntary
act, or otherwise, (vi) the release or substitution in whole or in part
of any security for the Note, (vii) Lender's failure to record the
Mortgages or file any UCC financing statements (or Lender's improper
recording or filing of any thereof) or to otherwise perfect, protect,
secure or insure any security interest or lien given as security for
the Note, or (viii) the limitations on recourse as provided in Article
XII of the Loan Agreement; and, in any such case, whether with or
without notice to the Indemnitors and with or without consideration.
7. Lender may enforce the obligations of the Indemnitors without first
resorting to or exhausting any security or collateral or without first
having recourse to the Note, the Loan Agreement, the Mortgages, or any
Other Security Documents or any of the Properties, through foreclosure
proceedings or otherwise, provided, however, that nothing herein shall
inhibit or prevent Lender from suing on the Note, foreclosing, or
exercising any power of sale under, the Mortgages, or exercising any
other rights and remedies thereunder.
8. The obligations and liabilities of the Indemnitors under this
Agreement shall survive for a period of three (3) years following
payment in full of the Obligations in accordance with the terms of the
Loan Documents, provided, however, in the event that (i) any
obligations or liabilities of the Indemnitors under this Agreement
shall have arisen from any Hazardous Materials which existed on, in,
under or affecting any Property prior to the expiration of such period
or (ii) if, prior to payment in full of the Loan, Lender shall have
exercised any rights or remedies after an Event of Default or any of
the Loan Documents shall have been modified or amended or any provision
thereof waived pursuant to any workout or restructuring of the Loan
(and if, as a consequence thereof, at any time after the expiration of
such three (3) year period, Lender shall be unable to avail itself of
any exemption from liability available to lenders under any applicable
Hazardous Material Law or shall be required to defend any claim or
action relating to any Hazardous Materials), then in any such event the
foregoing three (3) year period shall not apply and the obligations and
liabilities of the Indemnitors hereunder shall survive. In addition,
the foregoing three (3) year period shall not apply if Lender or any of
its agents, successors or assigns or any third party acquire title to
any Property by the foreclosure of the related Mortgage, deed-in-lieu
thereof, the exercise of any power of sale or otherwise, in which event
the Indemnitors shall be relieved of their obligations under this
Agreement with respect any Indemnified Claim relating to such Property
arising from occurrences after the Transfer Date as and to the extent
provided in the last sentence of Section 3(a) above.
9. Any amounts payable to Lender under this Agreement shall become
immediately due and payable on demand and, if not paid within ten (10)
days of written demand therefor, shall
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bear interest at the Default Rate provided under the Note, or the
maximum rate permitted by law from the date of demand, until paid.
10. Each Indemnitor hereby waives (i) any right or claim of right to
cause a marshalling of the Borrower's assets or to cause Lender to
proceed against any of the security for the Loan before proceeding
under this Agreement against any Indemnitor; (ii) and relinquishes all
rights and remedies accorded by applicable law to borrowers or
guarantors; (iii) the right to assert a counterclaim, other than a
mandatory or compulsory counterclaim, in any action or proceeding
brought against or by Lender; (iv) notice of acceptance hereof and of
any action taken or omitted in reliance hereon; (v) presentment for
payment, demand of payment, protest or notice of nonpayment or failure
to perform or observe, or other proof, or notice or demand; and (vi)
all homestead exemption rights against the obligations hereunder and
the benefits of any statutes of limitations or repose. Notwithstanding
anything to the contrary contained herein, each Indemnitor agrees that
it shall not exercise or attempt to exercise any rights of subrogation
which it may have with respect to any collateral securing the Loan
unless and until the Loan shall have been paid in full.
11. The Indemnitors shall reasonably take any and all reasonable actions,
including institution of legal action against third-parties, necessary
or appropriate to obtain reimbursement, payment or compensation from
such persons responsible for the presence of any Hazardous Materials
at, in, on, under or near any Property or otherwise obligated by law to
bear any costs therefor. Lender shall be and hereby is subrogated to
all of the Indemnitors' rights now or hereafter in such claims.
12. Subject to the rights of tenants, the Indemnitors shall reasonably
cooperate with Lender, at Lender's sole cost and expense (except during
the continuance of an Event of Default or in the event Lender
reasonably believes that a violation of any Hazardous Materials Law
related to any Property has occurred and is continuing), and provide
reasonable access to Lender and any professionals engaged by Lender,
upon Lender's request, to conduct, contract for, evaluate or interpret
any environmental assessments, audits, investigations, testing,
sampling, analysis and similar procedures on any Property.
13. Each Indemnitor represents and warrants that:
Such Indemnitor has the full corporate, partnership, trust or other
power and authority to execute and deliver this Agreement and to
perform its obligations hereunder; the execution, delivery and
performance of this Agreement by such Indemnitor has been duly and
validly authorized; and all requisite corporate, partnership, trust or
other action has been taken by such Indemnitor to make this Agreement
valid and binding upon such Indemnitor, enforceable in accordance with
its terms;
Such Indemnitor's execution of, and compliance with, this Agreement do
not and will not result in the breach of any term or provision of the
charter or by-laws, partnership agreement or other organizational
documents of such Indemnitor or result in the breach of any term or
provision of, or conflict with or constitute a default under or result
in the acceleration of any obligation under, any agreement, indenture
or loan or credit
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agreement or other instrument to which such Indemnitor or any Property
is subject, or result in the violation of any law, rule, regulation,
order, judgment or decree to which such Indemnitor or any Property is
subject;
No approval, authorization, order, license or consent of, or
registration or filing with, any governmental authority or other
person, and no approval, authorization or consent of any other party is
required in connection with this Agreement other than any which have
already been obtained; and
This Agreement constitutes a valid, legal and binding obligation of
such Indemnitor, enforceable against it in accordance with the terms
hereof.
14. No delay on Lender's part in exercising any right, power or privilege
under this Agreement shall operate as a waiver of any such privilege,
power or right.
15. The Indemnitors shall, within five (5) business days of receipt
thereof, give written notice to Lender of (i) any notice or advice from
any governmental agency or any source whatsoever with respect to the
violation of Hazardous Materials Law affecting any Property, and (ii)
any claim, suit or proceeding relating to Hazardous Materials, whether
administrative or judicial in nature, brought against such party or
instituted with respect to any Property, with respect to which any
Indemnitor may have liability under this Agreement.
16. All notices under this Agreement shall be given to the parties at the
addresses and in the manner provided in the Loan Agreement.
17. Capitalized terms used herein and not specifically defined herein shall
have the respective meanings ascribed to such terms in the Loan
Agreement.
18. This Agreement may be executed in several counterparts, each of which
counterparts shall be deemed an original instrument and all of which
together shall constitute a single Agreement. The failure of any party
hereto to execute this Agreement, or any counterpart hereof, shall not
relieve the other signatories from their obligations hereunder.
19. This Agreement may not be modified, amended, waived, extended, changed,
discharged or terminated orally or by any act or failure to act on the
part of Lender, but only by an agreement in writing signed by the party
against whom enforcement of any modification, amendment, waiver,
extension, change, discharge or termination is sought.
20. The terms, covenants and conditions of this Agreement shall be binding
upon each of the Indemnitors and their respective successors and
assigns and shall inure to the benefit of Lender and its successors and
assigns.
21. The obligations and liabilities of each of the Indemnitors hereunder
shall be joint and several.
22. Any one or more parties liable upon or in respect of this Agreement
may be released without affecting the liability of any party not so
released.
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23. The rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies which Lender has under the Note,
the Loan Agreement, the Mortgages, or the Other Security Documents or
would otherwise have at law or in equity.
24. If any term, condition or covenant of this Agreement shall be held to
be invalid, illegal or unenforceable in any respect, this Agreement
shall be construed without such provision.
25. This Agreement shall be governed and construed in accordance with the
laws of the internal laws of the State of New York, without regard to
conflicts of law principles.
26. EACH INDEMNITOR HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR
FEDERAL COURT LOCATED WITHIN THE COUNTY OF NEW YORK, STATE OF NEW YORK
OR WITHIN THE COUNTY AND STATE IN WHICH THE PROPERTY IS LOCATED AND
IRREVOCABLY AGREES THAT, SUBJECT TO LENDER'S ELECTION, ALL ACTIONS OR
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE
LITIGATED IN SUCH COURTS. EACH INDEMNITOR ACCEPTS FOR ITSELF AND IN
CONNECTION WITH THE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY
DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY
ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT.
NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF LENDER TO BRING
PROCEEDINGS AGAINST THE INDEMNITOR IN THE COURTS OF ANY OTHER
JURISDICTION.
27. EACH OF THE INDEMNITORS AND LENDER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING IN ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY
WAY CONNECTED WITH THIS AGREEMENT.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Agreement has been executed by the Indemnitors
and is effective as of the day and year first above written.
INDEMNITORS:
VENTAS FINANCE I, LLC,
a Delaware limited liability company
By: Ventas Finance I, Inc.,
a Delaware corporation,
its sole member
By: /s/ T. Xxxxxxx Xxxxx
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Name: T. Xxxxxxx Xxxxx
Title: Executive Vice President
VENTAS, INC.,
a Delaware corporation
By: /s/ T. Xxxxxxx Xxxxx
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Name: T. Xxxxxxx Xxxxx
Title: Executive Vice President
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