INDEMNIFICATION AGREEMENT
Exhibit 99.9
EXECUTION COPY
This INDEMNIFICATION AGREEMENT (this “Agreement”) is effective as of May 12, 2011, by
and among Ventas, Inc., a Delaware corporation (“Acquiror”), Ventas SL I, LLC (“Merger
Sub A”), a Delaware limited liability company and a direct, wholly-owned subsidiary of
Acquiror, Ventas XX XX, LLC, a Delaware limited liability company and a direct, wholly-owned
subsidiary of Acquiror (“Merger Sub O”), Ventas SL III, LLC, a Delaware limited liability
company and a direct, wholly-owned subsidiary of Acquiror (“Merger Sub C”), Prometheus
Senior Quarters LLC, a Delaware limited liability company (“Prometheus”), Lazard Senior
Housing Partners LP, a Delaware limited partnership (“Senior Housing LP”), LSHP
Coinvestment Partnership I LP, a Delaware limited partnership (“Coinvestment LP” and,
together with Prometheus and Senior Housing LP, the “Stockholders”), Atria Senior Living
Group, Inc., a Delaware corporation (“Existing Guarantor”), One Lantern Senior Living Inc,
a Delaware corporation (“OLSL”), LSHP Coinvestment I Inc, a Delaware corporation
(“Coinvestment Inc”), Ventas Senior Housing, LLC, a Delaware limited liability company
(“Ventas SH”), Ventas AOC Operating Holdings, Inc., a Delaware corporation (the
“TRS”) and ASL Operating Company, LLC, a Delaware limited liability company
(“Management Holdco”).
RECITALS
WHEREAS, Acquiror, Merger Sub A, Merger Sub O, Merger Sub C, Prometheus (as successor by
assignment to Atria Holdings LLC), Senior Housing LP, Coinvestment LP, Existing Guarantor, OLSL and
Coinvestment Inc are parties to that certain Merger Agreement, dated as of October 21, 2010 (as
amended, the “Merger Agreement”);
WHEREAS, concurrent with the closing of the mergers provided for in the Merger Agreement, the
Stockholders have agreed to place certain shares of common stock of Acquiror (“Acquiror
Shares”) into escrow with XX Xxxxxx Xxxxx Bank N.A., as escrow agent (“Escrow Agent”),
to be held by Escrow Agent pursuant to the terms of a separate Escrow Agreement, dated the date of
the Closing (the “Escrow Agreement”);
WHEREAS, pursuant to the Merger Agreement and contemporaneously with the consummation of the
transactions under the Merger Agreement, Ventas SH, the TRS, Management Holdco and certain other
parties are entering into a certain Master Agreement (the “Master Agreement”) dated as of
the date hereof;
WHEREAS, in connection with the closing of the transactions contemplated by the Merger
Agreement, certain of the parties hereto or their affiliates are parties to (i) that certain
Assignment and Assumption (“Assignment and Assumption”), dated as of the date hereof, by
ARVIM, Inc., a California corporation (“ARVIM”), ARV Assisted Living, Inc., a Delaware
corporation (“ARV”), Atria Lynnbrooke (Irvine), L.P., a Delaware limited partnership
(“Atria Lynnbrooke”), Atria Meridian, LLC, a Delaware limited liability company (“Atria
Meridian” and together with ARVIM, ARV and Atria Lynnbrooke, each, an “Existing Lessee”
and, collectively, the “Existing Lessees”), as assignors, and Atria Lynnbrooke, Atria
Meridian, Atria Northgate Park, LLC, a Delaware limited liability company (“Atria Northgate”), Atria Shorehaven,
LLC, a
Delaware limited liability company (“Atria Shorehaven”), Atria Xxxxxxx Park, LLC, a
Delaware limited liability company (“Atria Xxxxxxx”), and Atria Vista del Rio, LLC, a
Delaware limited liability company (“Atria del
Rio”, and together with Atria Lynnbrooke,
Atria Meridian, Atria Northgate, Atria Shorehaven and Atria Xxxxxxx, the “New Lessees”), as
assignees, pursuant to which the Existing Lessees have assigned all of their right, title and
interest, and the New Lessees have agreed, jointly and severally, to assume all of the obligations
of the Existing Lessees, whether accruing prior to or subsequent to the date thereof, under that
certain Amended and Restated Master Lease and Security Agreement (the “Lease”), dated as of
July 28, 2006, between the Existing Lessees and HCP, Inc. (f/k/a Health Care Property Investors,
Inc.), a Maryland corporation (“HCP”), Texas HCP Holding, L.P., a Delaware limited
partnership (“Texas HCP”), and HCP Woodbridge, LLC, a Delaware limited liability company
(“HCP Woodbridge,” and together with HCP and Texas HCP, as their interests may appear,
“Lessor”), (ii) that certain Guaranty of Obligations (the “Guaranty”), dated as of
the date hereof, by LFSRI II-CADIM Alternative Partnership L.P., a Delaware limited partnership, LF
Strategic Realty Investors II L.P., a Delaware limited partnership and LFSRI II Alternative
Partnership L.P., a Delaware limited partnership (LFSRI II-CADIM Alternative Partnership L.P., LF
Strategic Realty Investors II L.P., LFSRI II Alternative Partnership L.P., Prometheus, Senior
Housing LP and Coinvestment LP, collectively, the “Replacement Guarantors”), as guarantors,
for the benefit of Lessor, and (iii) that certain Consent and Lease Modification Agreement, dated
as of May 9, 2011, by and among Lessor, ARV, ARVIM, Atria Lynnbrooke, Atria Meridian, Existing
Guarantor, Atria Northgate, Atria Shorehaven, Atria Xxxxxxx, Atria del Rio and the Replacement
Guarantors (the “Consent Agreement”, and, collectively with the Guaranty and the
“Transaction Documents” (as defined in the Guaranty), the “HCP Transaction Documents”); and
WHEREAS, in connection with the consummation of the transactions under the Merger Agreement,
the parties desire to enter into this Agreement.
AGREEMENT
NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
ARTICLE I
INDEMNIFICATION
INDEMNIFICATION
Section 1.1 Indemnification. Following the Closing, Management Holdco and each of the
Stockholders agree, jointly and severally, to indemnify and hold harmless Acquiror and its
Affiliates (including, without limitation, the Existing Lessees and the Existing Guarantor, which
shall become Affiliates of Acquiror upon consummation of the Mergers) and their respective
directors, officers, employees, agents, successors and permitted assigns (each, an “Indemnified
Person” and, collectively, the “Indemnified Persons”) from and against all Damages
actually imposed upon or incurred or suffered by any such Indemnified Person pursuant to or in
connection with any of the Retained Guaranty, the Lease or the HCP Transaction Documents or caused
by any breach or violation of any thereof at any time prior to, at or subsequent to Closing.
Indemnified Persons are intended third-party beneficiaries, but may only seek to enforce the
provisions of this Section 1.1 through Acquiror and not directly.
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Section 1.2 Limitations; Termination of Indemnification by Stockholders.
(a) The Stockholders agree that the Escrow Fund shall serve as security for the Stockholders’
indemnification obligations under Section 1.1 (as well as under the Merger Agreement).
Acquiror, for itself and all other Indemnified Persons, confirms and agrees that (1) the sole and
exclusive remedy of Acquiror and any other Indemnified Person against any Stockholder for any
Damages incurred or alleged to have been incurred and for any other claim pursuant to this
Agreement or in respect of any of the matters covered by the indemnification provided in
Section 1.1 shall be recovery of actual Damages from the Escrow Fund in accordance with
this Agreement and, to the extent applicable, the Merger Agreement, (2) in no case will any
Stockholder have any personal liability pursuant to this Agreement (except to the extent of its
interest in the Escrow Fund) and (3) at such time as all Shares (and cash, if any) held in the
Escrow Fund in respect of obligations pursuant to this Agreement have either been applied toward
payment in respect of Third Party Claims or returned or are required to be returned to the
Stockholders as provided herein, the Stockholders automatically shall be released from any
liability under this Agreement. Additionally, on the Survival End Date, if the Escrow Release Date
(as defined below) has not yet occurred, the Escrow Agent shall retain, from Shares it otherwise
would have been required to release and deliver to the Stockholders, a number of Shares equal to
37,500,000 divided by the Value Per Share or, if fewer shares then remain in the Escrow Fund, all
of the Shares that otherwise would have been released to the Stockholders, it being understood that
the Stockholders will not be required to contribute any additional Shares to the Escrow Fund. The
parties further agree that at any time following the Survival End Date the Stockholders may, at
their option, arrange for the sale of all or any portion of the Shares so retained in the Escrow
Fund so long as (A) in connection with and immediately upon closing of any such sale, the
Stockholders either deliver, or have directed the purchasers or the selling agent(s) in writing, in
form and substance satisfactory to Acquiror, to deliver, cash (from proceeds of such sale or
otherwise) equal to the product of the number of Shares sold multiplied by the Value Per Share and
(B) if the sale is to an affiliate of the Stockholders, other than Lazard Capital Markets or
another registered broker-dealer, the sale is a bona fide sale, on arm’s-length terms. The
Acquiror agrees, and agrees to cause its Affiliates, to take such actions as are reasonably
requested by the Stockholders, including providing joint instructions to the Escrow Agent, as
necessary to cause the Shares proposed for sale to be released from the Escrow Fund and delivered
to the purchasers free and clear of any lien or other encumbrance. The Shares (and any cash
delivered in substitution therefor) to be held by the Escrow Agent from and after the Survival End
Date pursuant to this Section 1.2(a) shall serve as security for the Stockholders’
indemnification obligations under this Agreement (the “New Escrow Fund”) in accordance with
the applicable terms of this Agreement and the Escrow Agreement. The parties agree that any claim
paid from the New Escrow Fund in satisfaction of the indemnification obligation in Section
1.1 will be satisfied first from cash in the New Escrow Fund, if and to the extent the New
Escrow Fund includes cash, and thereafter from Shares valued at the Value Per Share. In addition,
during the period that any Shares are held in the New Escrow Fund, all dividends and distributions
made with respect to the Shares will be paid directly to the Stockholders, for allocation among
them as they specify to Escrow Agent in writing, and will not be considered to be part of the
Escrow Fund or the New Escrow Fund.
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(b) The remainder of the New Escrow Fund shall be released to the Stockholders promptly after
the close of business on the earlier of (i) November 12, 2015 and (ii) the Termination Date (such
earlier date, the “Escrow Release Date”); provided, that, subject to Section
1.2(c), if, at the Escrow Release Date, any duly delivered notice of claim for indemnification
hereunder (a “Notice of Claim”) remains outstanding (and has not rendered moot by the
release described in the definition of “Termination Date” below), then the Escrow Agent shall
retain a portion of the New Escrow Fund (the “Retained Amount”) with a value equal to the
aggregate dollar amount of all outstanding claims then the subject of all Notices of Claim that
have not been resolved (to be satisfied first with retention of cash and thereafter with retention
of the requisite number of Shares, valued at the Value Per Share), and shall only transfer to
Stockholders the portion of the New Escrow Fund, if any, with a value in excess of the Retained
Amount. As used herein, the “Termination Date” means the business day following the date
on which Existing Guarantor, ARV and ARVIM have been released in writing by Lessor from all
liabilities and obligations pursuant to the Retained Guaranty and the Lease in form and substance
acceptable to Acquiror acting reasonably. The parties confirm that on the Termination Date this
Agreement and all of the obligations of the Stockholders and Management Holdco hereunder
automatically will terminate and be of no further force or effect.
(c) The obligations of the Stockholders hereunder to indemnify the Acquiror and the other
Indemnified Persons shall terminate at midnight on the Escrow Release Date; provided that the
Stockholders’ obligations pursuant to Section 1.1 shall survive beyond that date with
respect to any specific claim for indemnification hereunder as to which the Acquiror shall have
delivered a written Notice of Claim setting forth the nature of the claim, in reasonable detail,
before midnight on the Escrow Release Date and any such claim so made shall expire on the earlier
of (i) the date on which the parties resolve the dispute between them and (ii) the ninetieth (90th)
day following the receipt by Stockholders of a written notice unless the Acquiror shall have filed
a legal action in a court of competent jurisdiction in respect of that claim on or prior to the
expiry of such ninetieth (90th) day (in which case the claim for indemnification shall expire upon
the final non-appealable resolution of that legal action).
(d) For certainty, the release of collateral, termination and other provisions of this
Section 1.2 shall apply only to the obligations of the Stockholders and shall have no
applicability whatsoever to the indemnification obligations of Management Holdco.
Section 1.3 Indemnification Procedures. The procedures for, provisions of and
limitations upon indemnification set forth in Section 6(f) (excluding subdivision (iv) thereof) of
the Merger Agreement shall apply to claims for indemnification pursuant to Section 1.1 as
if Management Holdco and the Stockholders were the “Indemnifying Party” for purposes of such
Section and except that:
(a) the terms of Section 6(e) of the Merger Agreement shall not pertain to any such claims;
(b) the Acquiror (directly or on behalf of any Indemnified Person) may participate in the
defense of any Third-Party Claim at the Acquiror’s option and, if the Acquiror elects to so
participate, (i) the Acquiror shall be entitled to employ one separate counsel of its choice to
advise the Indemnified Persons in connection with the defense against the Third-Party Claim,
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and the Indemnifying Parties agree to be liable for the reasonable fees of such one separate
counsel incurred by Acquiror in connection with the defense against such Third-Party Claim, and
(ii) the Indemnifying Party shall consult with such Indemnified Person on any material decisions
and developments in the conduct of the applicable litigation; and
(c) the Stockholders and Management Holdco shall not settle, compromise or discharge any
Third-Party Claim without the Acquiror’s consent (which consent will not be unreasonably withheld,
conditioned or delayed) unless the settlement satisfies the conditions described in clauses (A),
(B) and (C) of Section 6(f)(iii) of the Merger Agreement, it being understood that so long as those
conditions are satisfied the Indemnifying Parties will be entitled to settle and compromise any
Third Party Claim on such terms as they deem appropriate.
Section 1.4 Exclusive Remedy; Other Limitations.
(a) The Acquiror confirms, for itself and all Indemnified Persons, that the indemnification
provisions of this Agreement and, to the extent applicable (but without duplication), the Merger
Agreement, are the sole and exclusive remedy available to Indemnified Persons against the
Stockholders for any claims or Damages for which the Indemnified Persons are indemnified under
Section 1.1, and waives, to the fullest extent permitted under applicable law, any and all
other rights, claims and causes of action (other than with respect to fraud) that any such person
or entity may have against any Stockholder arising out of the Lease, the Existing Guaranty or the
Consent Agreement or the transactions contemplated therein, whether at law, in equity or otherwise.
(b) Any liability for indemnification pursuant to this Agreement shall be determined without
duplication of recovery due to the facts (i) giving rise to such liability constituting a breach of
one or more representations, warranties, covenants or other agreements or (ii) otherwise taken into
account in determining any adjustment to consideration payable pursuant to the Merger Agreement,
the Master Agreement and/or any Management Agreement (as defined in the Master Agreement), and no
Indemnified Person shall be entitled to recovery hereunder in respect of any Damages if and to the
extent that such Indemnified Person received credit or other compensation for such Damages in the
adjustments, if any, made pursuant to the terms of the Merger Agreement, the Master Agreement
and/or any Management Agreement.
(c) Acquiror shall, and shall cause the other Indemnified Persons to, take reasonable action
to mitigate the damages that are the subject of any claim for indemnification hereunder. None of
the Stockholders or Management Holdco shall have any liability pursuant to this Agreement for any
punitive, consequential, special or indirect Damages, including business interruption, loss of
future revenue, profits or income or loss of business reputation or opportunity, except to the
extent such Damages are awarded against an Indemnified Person by a court of competent jurisdiction
in respect of a Third-Party Claim.
Section 1.5 No Claim for Reimbursement. Each Stockholder and Management Holdco agrees
that, except to the extent described in the proviso below (with respect to which the Stockholders
and Management Holdco reserve all rights and claims), from and after Closing it will not be
entitled to bring, it will not pursue, and it hereby waives and releases, any claim against
Existing Guarantor, ARV, ARVIM or any of their respective
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Affiliates (a “Released Claim”), (x) for reimbursement of any indemnification payments
owing by any Stockholder or Management Holdco pursuant to this Agreement, despite the fact that
Existing Guarantor, ARV and ARVIM were the parties to the Retained Guaranty and the Lease prior to
the date hereof, or (y) otherwise arising pursuant to or in connection with the Lease, the Retained
Guaranty or the HCP Transaction Documents; provided, that with respect to the release of
claims made in this clause (y), (A) the Stockholders and Management Holdco do not release, and the
foregoing shall not, and shall not be construed to, prevent, restrict or impair in any manner, any
right or ability of any Stockholder or Management Holdco to assert any Released Claim or, for the
avoidance of doubt, any other matter as a defense to any claim made by any Indemnified Person to
the fullest extent permitted by law or in equity and (B) for the avoidance of doubt, none of the
Stockholders or Management Holdco releases, and each specifically reserves, the right to enforce
this Agreement (specifically including Section 1.8), the Merger Agreement and any of the
other agreements entered into pursuant to or in connection with the Merger Agreement (other than
the HCP Transaction Documents), in each case in accordance with its terms, and no such agreement
shall be deemed to be entered “in connection with” the Lease, the Retained Guaranty or the HCP
Transaction Documents for purposes of this Section 1.5.
Section 1.6 No Duplication. It is agreed and understood that, to the extent that any
of the Stockholders or Management Holdco makes an indemnification payment owing hereunder, no
Indemnified Person shall make or be entitled to make an indemnification claim pursuant to Section
6(a)(vi) of the Merger Agreement with respect to the facts specifically giving rise to such payment
hereunder.
Section 1.7 Representations. Each of the Stockholders and Management Holdco hereby
represents and warrants to Acquiror, the Existing Lessees and Existing Guarantor that: (i) the
Consent Agreement (including without limitation the release set forth in Section 1(b) thereof) is
in full force and effect, with all conditions to such effectiveness having been satisfied in full;
(ii) each of the representations and warranties made by the Existing Lessees, Existing Guarantor,
the New Lessees and the Replacement Guarantors in Paragraph 5 of the Consent Agreement is true and
correct in all material respects; and (iii) the “Consent Effective Date” (as defined in the Consent
Agreement) has occurred under the Consent Agreement. For certainty, the parties agree that none of
the Stockholders or Management Holdco shall have any liability to Acquiror, the Existing Lessees or
Existing Guarantor in respect of any breach of the representations and warranties in this
Section 1.7 unless, and then only to the extent, that the breach has resulted in Damages
for which they have provided indemnification pursuant to Section 1.1, that any claim in
respect of such Damages will be subject to the provisions of Section 1.3 and that the
obligations of the Stockholders in respect of any such Damages is limited as provided in
Section 1.2.
Section 1.8 Covenant of Acquiror. Acquiror covenants and agrees for the
benefit of the Stockholders and Management Holdco that none of Existing Guarantor, ARV, ARVIM or
any entity directly or indirectly controlling or controlled by any of the foregoing (including
without limitation Acquiror), or any agent or representative of any of the foregoing acting on such
entity’s behalf, shall take any affirmative action relating to the Lease, the Existing Guaranty or
the Transaction Documents that increases, and that Acquiror knows or reasonably should have known
will increase, Management Holdco’s or the Stockholders’’ liability under
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Section 1.1 (i.e., result in liability that exceeds the liability that otherwise would
have been incurred by the Stockholders and/or Management Holdco if that affirmative action had not
occurred), other than (x) actions specifically approved in advance by the Stockholders in writing,
such approval not to be unreasonably withheld or delayed (it being agreed that it will be
reasonable for the Stockholders to withhold consent if they determine in their judgment that the
proposed action will, or reasonably could be expected to, result in any additional cost or expense
to the Stockholders or Management Holdco under this Agreement or otherwise), (y) responses made to,
or defenses asserted against, Lessor relating to the Lease, the Existing Guaranty or the
Transaction Documents and made in response to, or failure to respond to, claims or assertions made
by the Lessor against Existing Guarantor, ARV or ARVIM pursuant to the Lease, the Existing Guaranty
or the Transaction Documents, which responses or defenses are made or asserted in compliance with
the provisions of Section 1.3, or (z) as required by applicable law or stock exchange or
other applicable regulations.
ARTICLE II
MISCELLANEOUS
MISCELLANEOUS
Section 2.1 Definitions. Capitalized terms used herein without definition shall have
the meanings ascribed to such terms in the Merger Agreement.
Section 2.2 Assignment. Except as otherwise expressly set forth herein, this
Agreement and the rights hereunder are not assignable or transferable except with the prior written
consent of the Acquiror and the Stockholders, which consent may be withheld in such Party’s sole
discretion. Any purported assignment made in violation of this Section 2.2 shall be null
and void.
Section 2.3 Amendments and Waivers. No amendment hereto will be effective unless it
is in writing and signed by Acquiror, each of the Stockholders and Management Holdco. Any
provision of this Agreement may be waived if, but only if, such waiver is in writing and is signed
by the Party against whom the waiver is to be effective. Any waiver of any term or condition shall
not be construed as a waiver of any subsequent breach or a subsequent waiver of the same term or
condition, or a waiver of any other term or condition of this Agreement. No failure or delay by
any party hereto in exercising any right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise thereof, preclude any other or further exercise thereof or the exercise
of any other right.
Section 2.4 Notices. All notices or other communications required or permitted to be
given hereunder shall be in writing and shall be delivered by hand, sent by telecopy or sent,
postage prepaid, by United States registered, certified or express mail, or reputable overnight
courier service and shall be deemed given, if delivered by hand, when so delivered, or if sent by
telecopy, when received, or if sent by mail, three (3) Business Days after mailing (two (2)
Business Days in the case of express mail), or if sent by overnight courier service, one (1)
Business Day after delivery to such service, as follows:
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(i)
|
if to Acquiror, to | |
| Ventas, Inc. | ||
| 00000 Xxxxxx Xxxx Xxxxx, Xxxxx 000 | ||
| Xxxxxxxxxx, XX 00000 | ||
| Attention: T. Xxxxxxx Xxxxx | ||
| Facsimile (000) 000-0000 | ||
| with a copy to: | ||
| Wachtell, Lipton, Xxxxx & Xxxx | ||
| 00 Xxxx 00xx Xxxxxx | ||
| Xxx Xxxx Xxx Xxxx 00000 | ||
| Attention: Xxxxx Xxxxxxx | ||
| Facsimile No.: (000) 000-0000 | ||
(ii)
|
if to Merger Sub A, to | |
| Ventas SL I, LLC | ||
| c/o Ventas, Inc. | ||
| 00000 Xxxxxx Xxxx Xxxxx, Xxxxx 000 | ||
| Xxxxxxxxxx, XX 00000 | ||
| Attention: T. Xxxxxxx Xxxxx | ||
| Facsimile (000) 000-0000 | ||
| with a copy to: | ||
| Wachtell, Lipton, Xxxxx & Xxxx | ||
| 00 Xxxx 00xx Xxxxxx | ||
| Xxx Xxxx Xxx Xxxx 00000 | ||
| Attention: Xxxxx Xxxxxxx | ||
| Facsimile No.: (000) 000-0000 | ||
(iii)
|
if to Merger Sub O, to | |
| Ventas XX XX, LLC | ||
| c/o Ventas, Inc. | ||
| 00000 Xxxxxx Xxxx Xxxxx, Xxxxx 000 | ||
| Xxxxxxxxxx, XX 00000 | ||
| Attention: T. Xxxxxxx Xxxxx | ||
| Facsimile (000) 000-0000 | ||
| with a copy to: | ||
| Wachtell, Lipton, Xxxxx & Xxxx | ||
| 00 Xxxx 00xx Xxxxxx | ||
| Xxx Xxxx Xxx Xxxx 00000 | ||
| Attention: Xxxxx Xxxxxxx | ||
| Facsimile No.: (000) 000-0000 |
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(iv)
|
if to Merger Sub C, to | |
| Ventas SL III, LLC | ||
| c/o Ventas, Inc. | ||
| 00000 Xxxxxx Xxxx Xxxxx, Xxxxx 000 | ||
| Xxxxxxxxxx, XX 00000 | ||
| Attention: T. Xxxxxxx Xxxxx | ||
| Facsimile (000) 000-0000 | ||
| with a copy to: | ||
| Wachtell, Lipton, Xxxxx & Xxxx | ||
| 00 Xxxx 00xx Xxxxxx | ||
| Xxx Xxxx Xxx Xxxx 00000 | ||
| Attention: Xxxxx Xxxxxxx | ||
| Facsimile No.: (000) 000-0000 | ||
(v)
|
if to Prometheus, to | |
| Prometheus Senior Quarters LLC | ||
| c/o Lazard Frères Real Estate Investors L.L.C. | ||
| 00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Xxxxxxx X. Xxxxxx and General Counsel | ||
| Facsimile No.: (000) 000-0000 and (000) 000-0000 | ||
| with a copy to: | ||
| Xxxxxxxx & Xxxxxxxx LLP | ||
| 000 Xxxxx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Xxxxxxxx X. Xxxxx | ||
| Facsimile No.: (000) 000-0000 | ||
(vi)
|
if to Senior Housing LP, to | |
| Lazard Senior Housing Partners LP | ||
| c/o Lazard Real Estate Partners LLC | ||
| 00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Xxxxxxx X. Xxxxxx and General Counsel | ||
| Facsimile No.: (000) 000-0000 and (000) 000-0000 |
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| with a copy to: | ||
| Xxxxxxxx & Xxxxxxxx LLP | ||
| 000 Xxxxx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Xxxxxxxx X. Xxxxx | ||
| Facsimile No.: (000) 000-0000 | ||
(vii)
|
if to Coinvestment LP, to | |
| LSHP Coinvestment Partnership I LP | ||
| c/o Lazard Real Estate Partners LLC | ||
| 00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Xxxxxxx X. Xxxxxx and General Counsel | ||
| Facsimile No.: (000) 000-0000 and (000) 000-0000 | ||
| with a copy to: | ||
| Xxxxxxxx & Xxxxxxxx LLP | ||
| 000 Xxxxx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Xxxxxxxx X. Xxxxx | ||
| Facsimile No.: (000) 000-0000 | ||
(viii)
|
if to Existing Guarantor, to | |
| Ventas XX XX, LLC | ||
| c/o Ventas, Inc. | ||
| 00000 Xxxxxx Xxxx Xxxxx, Xxxxx 000 | ||
| Xxxxxxxxxx, XX 00000 | ||
| Attention: T. Xxxxxxx Xxxxx | ||
| Facsimile (000) 000-0000 | ||
| with a copy to: | ||
| Wachtell, Lipton, Xxxxx & Xxxx | ||
| 00 Xxxx 00xx Xxxxxx | ||
| Xxx Xxxx Xxx Xxxx 00000 | ||
| Attention: Xxxxx Xxxxxxx | ||
| Facsimile No.: (000) 000-0000 |
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(ix)
|
if to OLSL, to | |
| c/o Ventas, Inc. | ||
| 00000 Xxxxxx Xxxx Xxxxx, Xxxxx 000 | ||
| Xxxxxxxxxx, XX 00000 | ||
| Attention: T. Xxxxxxx Xxxxx | ||
| Facsimile (000) 000-0000 | ||
| with a copy to: | ||
| Wachtell, Lipton, Xxxxx & Xxxx | ||
| 00 Xxxx 00xx Xxxxxx | ||
| Xxx Xxxx Xxx Xxxx 00000 | ||
| Attention: Xxxxx Xxxxxxx | ||
| Facsimile No.: (000) 000-0000 | ||
(x)
|
if to Coinvestment Inc, to | |
| c/o Ventas, Inc. | ||
| 00000 Xxxxxx Xxxx Xxxxx, Xxxxx 000 | ||
| Xxxxxxxxxx, XX 00000 | ||
| Attention: T. Xxxxxxx Xxxxx | ||
| Facsimile (000) 000-0000 | ||
| with a copy to: | ||
| Wachtell, Lipton, Xxxxx & Xxxx | ||
| 00 Xxxx 00xx Xxxxxx | ||
| Xxx Xxxx Xxx Xxxx 00000 | ||
| Attention: Xxxxx Xxxxxxx | ||
| Facsimile No.: (000) 000-0000 | ||
(xi)
|
if to Management Holdco, to | |
| c/o ASL Operating Company, Inc. | ||
| 000 Xxxxx 0xx Xxxxxx, Xxx. 0000 | ||
| Xxxxxxxxxx, XX 00000-0000 | ||
| Attention: General Counsel | ||
| Facsimile No.: (000) 000-0000 | ||
| with a copy to: | ||
| Xxxxxxxx & Xxxxxxxx LLP | ||
| 000 Xxxxx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Xxxxxxxx X. Xxxxx | ||
| Facsimile No.: (000) 000-0000 |
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(iv)
|
if to the TRS, to | |
| Ventas AOC Operating Holdings, Inc. | ||
| c/o Ventas, Inc. | ||
| 00000 Xxxxxx Xxxx Xxxxx, Xxxxx 000 | ||
| Xxxxxxxxxx, XX 00000 | ||
| Attention: T. Xxxxxxx Xxxxx | ||
| Facsimile (000) 000-0000 | ||
| with a copy to: | ||
| Wachtell, Lipton, Xxxxx & Xxxx | ||
| 00 Xxxx 00xx Xxxxxx | ||
| Xxx Xxxx Xxx Xxxx 00000 | ||
| Attention: Xxxxx Xxxxxxx | ||
| Facsimile No.: (000) 000-0000 | ||
(iv)
|
if to Ventas SH, to | |
| Ventas Senior Housing, LLC | ||
| c/o Ventas, Inc. | ||
| 00000 Xxxxxx Xxxx Xxxxx, Xxxxx 000 | ||
| Xxxxxxxxxx, XX 00000 | ||
| Attention: T. Xxxxxxx Xxxxx | ||
| Facsimile (000) 000-0000 | ||
| with a copy to: | ||
| Wachtell, Lipton, Xxxxx & Xxxx | ||
| 00 Xxxx 00xx Xxxxxx | ||
| Xxx Xxxx Xxx Xxxx 00000 | ||
| Attention: Xxxxx Xxxxxxx | ||
| Facsimile No.: (000) 000-0000 |
Any party may change the address to which notices and other communications are to be delivered
or sent to such party by giving the other parties notice in the manner herein set forth.
Section 2.5 Counterparts. This Agreement may be executed in multiple counterparts
(including by means of telecopied or emailed signature pages), all of which shall be considered one
and the same agreement, and shall become effective when counterparts have been signed by each of
the parties and delivered to the other parties.
Section 2.6 Entire Agreement. This Agreement, the Merger Agreement and the Escrow
Agreement contain the entire agreement and understanding between the Parties with respect to the
subject matter hereof and supersede all prior agreements and
understandings relating to such subject matter.
-12-
Section 2.7 Severability. Whenever possible, each provision of this Agreement shall
be interpreted in such a manner as to be effective and valid under applicable Law, but if any
provision of this Agreement is held to be prohibited by or invalid under applicable Law, such
provision shall be ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this Agreement.
Section 2.8 Governing Law. This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
Section 2.9 Waiver of Jury Trial. The
parties hereto expressly waive the right to a trial by jury in any action or proceeding brought by
or against any of them relating to this Agreement or the transactions contemplated herein.
Section 2.10 Exclusive Jurisdiction. Each of the parties hereto submits to the jurisdiction of any
state or federal court sitting in New York City, New York, in any action or proceeding arising out
of or relating to this Agreement and agrees that all claims in respect of the action or proceeding
may be heard and determined in any such court. Each party hereto also agrees not to bring any
action or proceeding arising out of or relating to this Agreement in any other court. Each of the
parties hereto waives any defense of inconvenient forum to the maintenance of any action or
proceeding so brought and waives any bond, surety or other security that might be required of any
other party with respect hereto.
Section 2.11 Remedies. Notwithstanding any provision
herein to the contrary, any alleged breach by Acquiror or its Affiliates under Section 1.8 or
the other provisions hereof may give rise to a claim thereunder, but shall not give rise to a
set off right under Section 1.1 or excuse compliance by the Stockholders or Management
Holdco with, or reduce the obligations of the Stockholders or Management Holdco under, Section
1.1.
[signature pages follow]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the
date first written above.
| VENTAS, INC., a Delaware corporation |
||||
| By: | /s/ T. Xxxxxxx Xxxxx | |||
| Name: | T. Xxxxxxx Xxxxx | |||
| Title: | Executive Vice President, Chief Administrative Officer and General Counsel | |||
| VENTAS SL I, LLC, a Delaware
limited liability company |
||||
| By: | Ventas, Inc., | |||
| its Sole Member | ||||
| By: | /s/ T. Xxxxxxx Xxxxx | |||
| Name: | T. Xxxxxxx Xxxxx | |||
| Title: | Executive Vice President, Chief Administrative Officer and General Counsel | |||
| VENTAS XX XX, LLC, a Delaware
limited liability company |
||||
| By: | Ventas, Inc., | |||
| its Sole Member | ||||
| By: | /s/ T. Xxxxxxx Xxxxx | |||
| Name: | T. Xxxxxxx Xxxxx | |||
| Title: | Executive Vice President, Chief Administrative Officer and General Counsel | |||
| VENTAS SL III, LLC, a Delaware
limited liability company |
||||
| By: | Ventas, Inc., | |||
| its Sole Member | ||||
| By: | /s/ T. Xxxxxxx Xxxxx | |||
| Name: | T. Xxxxxxx Xxxxx | |||
| Title: | Executive Vice President, Chief Administrative Officer and General Counsel | |||
| VENTAS SENIOR HOUSING,
LLC, a Delaware limited liability company |
||||
| By: | /s/ T. Xxxxxxx Xxxxx | |||
| Name: | T. Xxxxxxx Xxxxx | |||
| Title: | Executive Vice President, Chief Administrative Officer and General Counsel | |||
| VENTAS AOC OPERATING
HOLDINGS, INC., a Delaware corporation |
||||
| By: | /s/ T. Xxxxxxx Xxxxx | |||
| Name: | T. Xxxxxxx Xxxxx | |||
| Title: | Executive Vice President, Chief Administrative Officer and General Counsel | |||
| PROMETHEUS SENIOR QUARTERS LLC, a Delaware limited liability company |
||||
| By: | LF Strategic Realty Investors II L.P., | |||
| LFSRI II Alternative Partnership L.P. and LFSRI | ||||
| II-CADIM Alternative Partnership L.P., its Managing Members |
||||
| By: | Lazard Frères Real Estate Investors L.L.C., | |||
| their General Partner | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Managing Principal | |||
| LAZARD SENIOR HOUSING PARTNERS LP, a Delaware limited partnership |
||||
| By: | Lazard Senior Housing Partners GP LLC, | |||
| its General Partner | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Managing Principal and Chief Executive Officer | |||
| LSHP COINVESTMENT PARTNERSHIP I LP, a Delaware
limited partnership |
||||
| By: | LSHP Coinvestment I GP LLC, | |||
| its General Partner | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Managing Principal and Chief Executive Officer | |||
| ATRIA SENIOR LIVING
GROUP, INC., a Delaware
corporation |
|||||
| By: | /s/ Xxxx X. Xxxxx | ||||
| Name: Xxxx X. Xxxxx | |||||
| Title: | Chief Executive Officer | ||||
| ONE LANTERN SENIOR LIVING
INC, a Delaware
corporation |
|||||
| By: | /s/ Xxxxxxx X. Xxxxxx | ||||
| Name: | Xxxxxxx X. Xxxxxx | ||||
| Title: | President | ||||
| LSHP COINVESTMENT I INC,
a Delaware corporation |
|||||
| By: | /s/ Xxxxxxx X. Xxxxxx | ||||
| Name: | Xxxxxxx X. Xxxxxx | ||||
| Title: | President | ||||
| ASL OPERATING COMPANY,
LLC, a Delaware limited
liability company |
|||||
| By: | /s/ Xxxx X. Xxxxx | ||||
| Name: Xxxx X. Xxxxx | |||||
| Title: | Chief Executive Officer | ||||
