VENTAS REALTY, LIMITED PARTNERSHIP VENTAS CAPITAL CORPORATION $400,000,000 3.125% Senior Notes due 2015 UNDERWRITING AGREEMENT Dated November 8, 2010 Merrill Lynch, Pierce, Fenner & Smith Incorporated Barclays Capital Inc. Citigroup Global Markets Inc.
Exhibit 1.1
EXECUTION VERSION
VENTAS REALTY, LIMITED PARTNERSHIP
VENTAS CAPITAL CORPORATION
VENTAS CAPITAL CORPORATION
$400,000,000 3.125% Senior Notes due 2015
UNDERWRITING AGREEMENT
Dated November 8, 2010
Dated November 8, 2010
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Barclays Capital Inc.
Citigroup Global Markets Inc.
Barclays Capital Inc.
Citigroup Global Markets Inc.
November 8, 2010
BARCLAYS CAPITAL INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
CITIGROUP GLOBAL MARKETS INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Ventas Realty, Limited Partnership, a Delaware limited partnership (the “Operating
Partnership”), Ventas Capital Corporation, a Delaware corporation and a wholly owned subsidiary
of the Operating Partnership (“Capital Corp.,” and, together with the Operating
Partnership, the “Issuers”), and Ventas, Inc., a Delaware corporation (“Ventas”),
agree with the underwriters listed in Schedule A hereto (the “Underwriters”), for
whom Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Barclays Capital Inc. and Citigroup Global
Markets Inc. are acting as representatives (together, the “Representatives”) as set forth
herein. The Operating Partnership is wholly-owned, directly and indirectly through Ventas LP
Realty, L.L.C., a Delaware limited liability company, by Ventas. The Operating Partnership,
Capital Corp. and Ventas are referred to herein sometimes individually as a “Ventas Entity”
and collectively as the “Ventas Entities.”
The Issuers propose to issue and sell to the Underwriters $400,000,000 aggregate principal
amount of 3.125% Senior Notes due 2015 (the “Notes”). The Notes will be issued under an
indenture dated as of September 19, 2006, as supplemented by a third supplemental indenture (the
“Indenture”), among the Issuers, Ventas and U.S. Bank National Association, as trustee (the
“Trustee”). The Issuers’ obligations under the Notes and the Indenture will be fully and
unconditionally guaranteed (the “Guarantee”) at the Closing Time (as defined in Section
2(b) hereof) by Ventas (the “Guarantor”). All references herein to the Notes include the
related Guarantee, unless the context otherwise requires.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Ventas Entities. The Ventas Entities, jointly and
severally, represent and warrant to each Underwriter as of the date hereof, as of the
Applicable Time referred to in Section 1(a)(iv) hereof and as of the Closing Time referred to
in Section 2(b) hereof and agree with each Underwriter, as follows:
(i) Registration Statement. The Ventas Entities have prepared and filed with
the Securities and Exchange Commission (the “Commission”) a registration statement
on Form S-3 (File No. 333-158424), which contains a base prospectus (the “Base
Prospectus”), to be used in connection with the public offering and sale of the Notes.
Such registration statement, as amended, including the financial statements, exhibits and
schedules thereto, at each time of effectiveness under the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder (collectively, the
“Securities Act”), including any required information deemed to be a part thereof at
the time of effectiveness pursuant to Rule 430B under the Securities Act, is called the
“Registration Statement.” Any preliminary prospectus supplement that describes the
Notes and the offering thereof and is used prior to the filing of the Prospectus is
hereafter called, together with the Base Prospectus, a “preliminary prospectus.”
The term “Prospectus” shall mean the final prospectus supplement relating to the
Notes that is first filed pursuant to Rule 424(b) after the date and time that this
Agreement is executed and delivered by the parties hereto (the “Execution Time”),
together with the Base Prospectus. Any reference herein to the Registration Statement, the
Base Prospectus, any preliminary prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act; any reference to any amendment or supplement to the Registration
Statement, the Base Prospectus, any preliminary prospectus or the Prospectus shall be deemed
to refer to and include any documents filed after the date of such Registration Statement,
such Base Prospectus, any preliminary prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder (collectively, the “Exchange Act”), and incorporated by reference in such
Registration Statement, such Base Prospectus, any preliminary prospectus or Prospectus, as
the case may be.
(ii) Compliance with Registration Requirements. The Registration Statement has
become effective upon filing with the Commission under the Securities Act. No stop order
suspending the effectiveness of the Registration Statement is in effect, the Commission has
not issued any order or notice preventing or suspending the use of the Registration
Statement, any preliminary prospectus or the Prospectus and no proceedings for such purpose
have been instituted or are pending or, to the knowledge of the Ventas Entities, are
contemplated or threatened by the Commission.
Each of the preliminary prospectus and the Prospectus when filed complied in all
material respects with the Securities Act and the rules thereunder. Each of the
Registration Statement and any post-effective amendment thereto, at each time of
effectiveness and at the date hereof, complied and will comply in all material respects with
the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission promulgated thereunder (the “Trust Indenture Act”),
and did not and will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements
therein not misleading. The Indenture when filed complied in all material respects with the
Trust Indenture Act
and was duly qualified as an indenture under the Trust Indenture Act. The Prospectus,
as amended or supplemented, as of its date, at the date hereof, at the time of any filing
pursuant to Rule 424(b) and, at the Closing Time (as defined herein), did not and will not
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contain any untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading. The representations and warranties set forth in the two
immediately preceding sentences do not apply to statements in or omissions from the
Registration Statement or any post-effective amendment thereto, or the Prospectus, or any
amendments or supplements thereto, made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Ventas Entities in writing by the
Representatives expressly for use therein, it being understood and agreed that the only such
information furnished by the Representatives consists of the Underwriter Information
described as such in Section 6(b) hereof. There is no contract or other document required
to be described in the Prospectus or to be filed as an exhibit to the Registration Statement
that has not been described or filed as required.
The documents incorporated by reference in the Prospectus, when they became effective
or were filed with the Commission, as the case may be, conformed in all material respects to
the requirements of the Securities Act or the Exchange Act, as applicable,. Any further
documents so filed and incorporated by reference in the Prospectus or any further amendment
or supplement thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable.
(iii) Well-Known Seasoned Issuer. (i) At the time of filing the Registration
Statement, (ii) at the time of the most recent amendment thereto, if applicable, for the
purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d)
of the Exchange Act or form of prospectus) or determining compliance under Rule 405 of the
Securities Act, and (iii) at the time Ventas or any person acting on its behalf (within the
meaning, for this clause only, of Rule 163(c) of the Securities Act) made any offer relating
to the Notes in reliance on the exemption of Rule 163 of the Securities Act, Ventas was and
is a “well-known seasoned issuer” as defined in Rule 405 of the Securities Act. The
Registration Statement is an “automatic shelf registration statement,” as defined in Rule
405 of the Securities Act, and Ventas has not received from the Commission any notice
pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf
registration statement form.
(iv) Disclosure Package. The term “Disclosure Package” shall mean (i)
the Base Prospectus and the preliminary prospectus, if any, as amended or supplemented, (ii)
any issuer free writing prospectuses as defined in Rule 433 of the Securities Act (each, an
“Issuer Free Writing Prospectus”), if any, identified in Schedule B hereto,
(iii) any other free writing prospectus that the parties hereto shall hereafter expressly
agree in writing to treat as part of the Disclosure Package and (iv) the Final Term Sheet
(as defined herein), which also shall be identified in Schedule B hereto. As of
2:45 p.m. (New York City time) on the date of this Agreement (the “Applicable
Time”), the Disclosure Package did
not contain any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The preceding sentence does not apply to statements
in or omissions from the Disclosure Package made in reliance upon and in conformity with
information relating to any Underwriter furnished to Ventas in writing by the
Representatives expressly for use therein, it being understood and agreed that the only such
information furnished by the Representatives consists of the Underwriter Information (as
defined below).
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(v) Issuers Not Ineligible Issuers. (i) At the earliest time after the filing
of the Registration Statement relating to the Notes that the Issuers or another offering
participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Securities
Act) and (ii) at the time of the most recent amendment thereto, if applicable, for the
purposes of (whether such amendment was by post-effective amendment, incorporated report
filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus) determining
compliance under Rule 405 of the Securities Act, the Issuers were not and neither are an
Ineligible Issuer (as defined in Rule 405 of the Securities Act), without taking account of
any determination by the Commission pursuant to Rule 405 of the Securities Act that it is
not necessary that either Issuer be considered an Ineligible Issuer.
(vi) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as
of its issue date and at all subsequent times through the completion of the offering of
Notes under this Agreement or until any earlier date that Ventas notified or notifies the
Representatives as described in the next sentence, did not, does not and will not include
any information that conflicted, conflicts or will conflict with the information contained
in the Registration Statement. If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a result of which such Issuer
Free Writing Prospectus conflicted or would conflict with the information contained in the
Registration Statement, Ventas has promptly notified and shall promptly notify the
Representatives and has promptly amended or supplemented or shall promptly amend or
supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct
such conflict. The foregoing two sentences do not apply to statements in or omissions from
any Issuer Free Writing Prospectus made in reliance upon and in conformity with information
relating to any Underwriter furnished in writing to Ventas by the Representatives expressly
for use therein, it being understood and agreed that the only such information furnished by
the Representatives consists of the Underwriter Information.
(vii) Distribution of Offering Material by Ventas. Ventas has not distributed
and will not distribute, prior to the later of the Closing Time (as defined below) and the
completion of the Underwriters’ distribution of the Notes, any offering material in
connection with the offering and sale of the Notes other than the preliminary prospectus,
the Prospectus, the Disclosure Package, and any Issuer Free Writing Prospectus reviewed and
consented to by the Representatives or included in Schedule B hereto or the
Registration Statement.
(viii) No Applicable Registration or Other Similar Rights. There are no
persons with registration or other similar rights to have any equity or debt securities
registered for sale under the Registration Statement or included in the offering
contemplated by this Agreement, except for such rights as have been duly waived.
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(ix) Capitalization. Ventas has an authorized capitalization of 300,000,000
shares of common stock, $0.25 par value (the “Common Stock”), and 10,000,000 shares
of preferred stock, $1.00 par value. All of the issued and outstanding shares of capital
stock or other equity interests of Ventas have been duly authorized and validly issued, are
fully paid and nonassessable and were not issued in violation of any preemptive or similar
right. All of the issued and outstanding shares of capital stock or other equity interests
of each Subsidiary of Ventas have been duly and validly authorized and issued, are fully
paid and (except in the case of general partnership interests) nonassessable, were not
issued in violation of any preemptive or similar right and, except as set forth in each of
the Disclosure Package and the Prospectus, are owned by Ventas, directly or indirectly
through one or more Subsidiaries, free and clear of all Liens other than Liens (i) that will
be discharged at or prior to the Closing Time or (ii) that are described in each of the
Disclosure Package and the Prospectus and secure indebtedness described in each of the
Disclosure Package and the Prospectus. There are no outstanding options, warrants or other
rights to acquire or purchase, or instruments convertible into or exchangeable for, any
shares of capital stock of any of the Significant Subsidiaries. For purposes of this
Agreement, “Significant Subsidiary” means any Subsidiary whose total assets or
annualized revenues (when aggregated with those of its Subsidiaries) as of the date of this
Agreement exceed 10% of the consolidated total assets or consolidated annualized revenues of
Ventas and the Subsidiaries as of the date of this Agreement. “Lien” means, with
respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance
of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected
under applicable law, including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction.
(x) Authorization of Indenture. The Indenture has been duly authorized by the
Issuers and the Guarantor and, at the Closing Time, will have been duly executed and
delivered by the Issuers and the Guarantor and will be a legally binding and valid
obligation of the Issuers and the Guarantor (assuming the due authorization, execution and
delivery thereof by the Trustee), enforceable against the Issuers and the Guarantor in
accordance with its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or similar laws affecting the
enforcement of creditors’ rights generally and by general principles of equity and the
discretion of the court before which any proceedings therefor may be brought.
(xi) Authorization of the Notes. The Notes to be purchased by the Underwriters
from the Issuers are in the form contemplated by the Indenture, have been duly authorized by
the Issuers for issuance and sale pursuant to this Agreement and the Indenture, and at the
Closing Time, will have been duly executed by the Issuers and, when authenticated
in the manner provided for in the Indenture and delivered by the Issuers
against payment by the Underwriters in accordance with the terms of this Agreement, will be
legally binding and valid obligations of the Issuers (assuming the due authorization,
execution and delivery of the Indenture by the Trustee and the due authorization and
delivery of the Notes by the Trustee in accordance with the Indenture), entitled to the
benefits of the Indenture and enforceable against the Issuers in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar laws affecting the enforcement
of creditors’ rights generally and by general principles of equity and the discretion of the
court before which any proceedings therefor may be brought.
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(xii) Authorization of the Guarantee. The Guarantee is in the form
contemplated by the Indenture, has been duly authorized by the Guarantor and, at the Closing
Time, will have been executed by the Guarantor and, when the Notes are authenticated in the
manner provided for in the Indenture and delivered by the Issuers against payment by the
Underwriters in accordance with the terms of this Agreement and the Indenture, will be a
legally binding and valid obligation of the Guarantor (assuming the due authorization,
execution and delivery of the Indenture by the Trustee and the due authorization and
delivery of the Notes by the Trustee in accordance with the Indenture), enforceable against
the Guarantor in accordance with its terms, except that enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
similar laws affecting the enforcement of creditors’ rights generally and by general
principles of equity and the discretion of the court before which any proceedings therefor
may be brought.
(xiii) Good Standing of Ventas and Its Subsidiaries; Power and Authority. Each
of Ventas and its (a) Significant Subsidiaries is a corporation, partnership, limited
liability company or real estate investment trust duly organized and validly existing under
the laws of the jurisdiction of its organization, (b) Subsidiaries has all requisite
corporate, partnership, limited liability company or trust power and authority, and has all
governmental licenses, authorizations, consents and approvals, necessary to own its property
and carry on its business as now being conducted, except where the failure to obtain any
such license, authorization, consent and approval is not reasonably likely, individually or
in the aggregate, to have a Material Adverse Effect (as defined below) and (c) Subsidiaries
is qualified to do business and is in good standing in all jurisdictions in which the nature
of the business conducted by it makes such qualification necessary except where failure to
be so qualified and in good standing is not reasonably likely, individually or in the
aggregate, to have a Material Adverse Effect (as defined below). Each Ventas Entity has all
requisite corporate, partnership, limited liability company or trust power and authority to
execute, deliver and perform all of its obligations under this Agreement, the Notes and the
Indenture (collectively, the “Note Documents”) to which it is a party and to
consummate the transactions contemplated thereby to be consummated on its part, including,
without limitation, the authority to issue, sell and deliver the Notes and to execute,
deliver and perform all its obligations under the Guarantee. A “Material Adverse
Effect” means any material adverse effect on the business, condition (financial or
other),
results of operations, performance or properties of Ventas and the Subsidiaries, taken
as a whole.
(xiv) Authorization of this Agreement. This Agreement has been duly and
validly authorized, executed and delivered by each of the Ventas Entities.
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(xv) Absence of Defaults and Conflicts. Neither Ventas nor any Subsidiary is
in violation of its charter, bylaws or other constitutive documents. Except as described in
each of the Disclosure Package and the Prospectus, none of Ventas or any Subsidiary is (A)
in default (or, with notice or lapse of time or both, would be in default) in the
performance or observance of any obligation, agreement, covenant or condition contained in
any bond, debenture, note, indenture, mortgage, deed of trust, loan or credit agreement,
lease, license, franchise agreement, authorization, permit, certificate or other agreement
or instrument to which any of them is a party or by which any of them is bound or to which
any of their assets or properties is subject (collectively, “Agreements and
Instruments”) or (B) in violation of any law, statute, rule, regulation, judgment, order
or decree of any domestic or foreign court with jurisdiction over any of them or any of
their assets or properties or other governmental or regulatory authority, agency or other
body, which, in the case of clauses (A) and (B), individually or in the aggregate, is
reasonably likely to have a Material Adverse Effect. There exists no condition that, with
notice, the passage of time or otherwise, would constitute a default by Ventas or any
Subsidiary under any such document or instrument or result in the imposition of any penalty
or the acceleration of any indebtedness, other than penalties, defaults or conditions that,
individually or in the aggregate, are not reasonably likely to have a Material Adverse
Effect.
(xvi) Absence of Defaults and Conflicts upon Consummation of Offering. None of
the issuance, offer and sale of the Notes by the Issuers, the execution, delivery and
performance of the Note Documents by the Ventas Entities or the consummation by the Ventas
Entities of the transactions contemplated by the Note Documents and in each of the
Disclosure Package and the Prospectus violate or will violate, conflict with or constitute a
breach of any of the terms or provisions of or a default under (or an event that with notice
or the lapse of time, or both, would constitute a default), or results in the creation or
imposition of a lien, charge, or encumbrance on any property or assets of Ventas or any
Subsidiary pursuant to, (i) the charter, bylaws or other constitutive documents of Ventas or
any Subsidiary, (ii) any law, statute, rule or regulation applicable to Ventas or any
Subsidiary or their respective assets or properties, (iii) any judgment, order or decree of
any domestic or foreign court or governmental agency or authority having jurisdiction over
Ventas or any Subsidiary or their respective assets or properties or (iv) any Agreements or
Instruments and except in the case of clauses (ii) and (iv), for such violations, conflicts,
breaches, defaults, liens, charges or encumbrances that, individually or in the aggregate,
are not reasonably likely to have a Material Adverse Effect. No consent, approval,
authorization or order of, or filing, registration, qualification, license or permit of or
with, any court or governmental agency, body or administrative agency, domestic or foreign,
is required to be obtained or made by Ventas or any Subsidiary for the execution, delivery
and performance by the Ventas Entities of the Note Documents to which they are a party,
including the consummation of any of the transactions contemplated
thereby, except such as have been or will be obtained or made on or prior to the
Closing Time, including, without limitation, such as may be required by the Securities Act,
state securities laws, blue sky laws and FINRA.
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(xvii) Absence of Proceedings. Except as set forth in each of the Disclosure
Package and the Prospectus, there is no action, suit or proceeding before or by any court,
arbitrator or governmental agency, body or official, domestic or foreign, now pending or, to
the knowledge of any of the Ventas Entities, threatened or contemplated, to which any of
Ventas or any Subsidiary is or may be a party or to which the business, assets or property
of such person is or may be subject, that is, individually or in the aggregate, reasonably
likely (i) to have a Material Adverse Effect, or (ii) to interfere with or adversely affect
the issuance of the Notes in any jurisdiction or adversely affect the consummation of the
transactions contemplated by any of the Note Documents and each of the Disclosure Package
and the Prospectus. Except as set forth in each of the Disclosure Package and the
Prospectus, there is (A) no statute, rule, regulation or order that has been enacted,
adopted or issued or, to the knowledge of any Ventas Entity, that has been proposed by any
governmental body or agency, domestic or foreign and (B) no injunction, restraining order or
order of any nature by a federal or state court or foreign court of competent jurisdiction
to which Ventas or any Subsidiary is or may be subject that in the case of clauses (A) and
(B), is, individually or in the aggregate, (x) reasonably likely to have a Material Adverse
Effect, or (y) reasonably likely to interfere with or adversely affect the issuance of the
Notes in any jurisdiction or adversely affect the consummation of the transactions
contemplated by any of the Note Documents. Every request of any securities authority or
agency of any jurisdiction for additional information with respect to the Notes that has
been received by Ventas or any Subsidiary or their counsel prior to the date hereof has
been, or will prior to the Closing Time be, complied with in all material respects.
(xviii) Exchange Act Compliance. Ventas is subject to and in compliance in all
material respects with the reporting requirements of Section 13 or 15(d) of the Exchange
Act.
(xix) Absence of Labor Dispute. Except as is not reasonably likely to have a
Material Adverse Effect, no labor disturbance by the employees of Ventas or any Subsidiary
exists or, to the knowledge of any Ventas Entity, is imminent. None of the Ventas Entities
is aware of any existing or imminent labor disturbance by the employees of Kindred
Healthcare, Inc. which may reasonably be expected to result in a Material Adverse Effect.
(xx) Environmental Laws. Except as described in each of the Disclosure Package
and the Prospectus, Ventas and each Subsidiary (A) is in compliance with, or not subject to
costs or liabilities under, laws, regulations, rules of common law, orders and decrees, as
in effect as of the date hereof, and any present judgments and injunctions issued or
promulgated thereunder relating to pollution or protection of public and employee health and
safety, the environment or hazardous or toxic substances or wastes, pollutants or
contaminants applicable to it or its business or operations or ownership or use of its
property (“Environmental Laws”), other than noncompliance or such costs or
liabilities that are not, individually or in the aggregate, reasonably likely to have a
Material Adverse Effect, and (B) possesses all permits, licenses or other approvals required
under applicable Environmental Laws, except where the failure to possess any such permit,
license or other approval is not, individually or in the aggregate, reasonably likely to
have a Material Adverse Effect. All currently pending and, to the knowledge of any of the
Ventas Entities, threatened proceedings, notices of violation, demands, notices of potential
responsibility or liability, suits and existing environmental conditions by any governmental
authority to which any of the Ventas Entities is subject that are reasonably likely to
result in a Material Adverse Effect are fully and accurately described in all material
respects in each of the Disclosure Package and the Prospectus.
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(xxi) Possession of Licenses and Permits. Ventas and each Subsidiary has (A)
all licenses, certificates, permits, authorizations, approvals, franchises and other rights
from, and has made all declarations and filings with, all applicable authorities, all
self-regulatory authorities and all courts and other tribunals (each, an
“Authorization”) necessary to engage in the business conducted by it in the manner
described in each of the Disclosure Package and the Prospectus, except where failure to hold
such Authorizations is not, individually or in the aggregate, reasonably likely to have a
Material Adverse Effect and (B) no knowledge that any governmental body or agency, domestic
or foreign, is considering limiting, suspending or revoking any such Authorization, except
where any such limitations, suspensions or revocations are not, individually or in the
aggregate, reasonably likely to have a Material Adverse Effect. All such Authorizations are
valid and in full force and effect, and Xxxxxx and each Subsidiary is in compliance with the
terms and conditions of all such Authorizations and with the rules and regulations of the
regulatory authorities having jurisdiction with respect to such Authorizations, except for
any invalidity, failure to be in full force and effect or noncompliance with any
Authorization that is not, individually or in the aggregate, reasonably likely to have a
Material Adverse Effect.
(xxii) Title to Property. Ventas and each Subsidiary has good and marketable
title in fee simple or a ground leasehold interest in all items of real property and good
and marketable title to all personal property owned by each of them, in each case free and
clear of all Liens, except (i) for Liens described in each of the Disclosure Package and the
Prospectus and (ii) to the extent that the failure to have such title or the presence of
such Liens is not, individually or in the aggregate, reasonably likely to result in a
Material Adverse Effect. Any real property and buildings held under lease by Ventas or any
Subsidiary are held under valid, subsisting and enforceable leases, except to the extent
that the failure to so hold such real property and buildings is not, individually or in the
aggregate, reasonably likely to result in a Material Adverse Effect.
(xxiii) Authorization, etc. of Leases. Each of Ventas’ and the Subsidiaries’
leases, including the Master Leases (as defined below) has been duly authorized by one or
more of Ventas and its Subsidiaries, as applicable, and is a valid and binding agreement of
Ventas and/or any such Subsidiary, and, to the knowledge of Ventas and/or any such
Subsidiary, each other party thereto, enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or similar laws affecting the enforcement of creditors’
rights generally and by general principles of equity and the discretion of the court before
which any proceedings therefor may be brought and except, with respect to Ventas’ and the
Subsidiaries’ leases (other than the Master Leases), as would not individually or in the
aggregate, be reasonably likely to have a Material Adverse Effect. To the knowledge
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of any
of the Ventas Entities, no lessee or sublessee of any portion of any of the properties owned
or leased by Ventas and/or any Subsidiary is in default under its respective lease and there
is no event which, but for the passage of time or the giving of notice or both, would
constitute a default under any such lease, except as described in each of the Disclosure
Package and the Prospectus and except for such defaults that are not, individually or in the
aggregate, reasonably likely to have a Material Adverse Effect. The term “Master
Leases” refers to the four second amended and restated master lease agreements, dated as
of April 27, 2007, by and among the Operating Partnership and Kindred Healthcare Inc. and
Kindred Healthcare Operating, Inc.
(xxiv) Qualification as a REIT. Commencing with Xxxxxx’ taxable year ended
December 31, 1999, Ventas has been organized and has operated in conformity with the
requirements for qualification and taxation as a real estate investment trust
(“REIT”) under the Internal Revenue Code of 1986, as amended (the “Code”),
and Ventas’ current and proposed method of operation will enable Ventas to continue to meet
the requirements for qualification and taxation as a REIT under the Code.
(xxv) Possession of Intellectual Property. Each of Ventas and each Significant
Subsidiary owns, possesses or has the right to employ all patents, patent rights, licenses,
inventions, copyrights, know-how, trademarks, service marks, trade names and other
intellectual property (collectively, the “Intellectual Property”) necessary to
conduct the businesses operated by it as described in each of the Disclosure Package and the
Prospectus, except where the failure to own, possess or have the right to employ such
Intellectual Property is not reasonably likely to have a Material Adverse Effect. None of
Ventas or any Subsidiary has received any notice of infringement of or conflict with (and
neither knows of any such infringement or a conflict with) asserted rights of others with
respect to any of the foregoing that, if such assertion of infringement or conflict were
sustained, is reasonably likely to have a Material Adverse Effect. To the knowledge of each
of the Ventas Entities, the use of the Intellectual Property in connection with the business
and operations of Ventas and the Subsidiaries does not infringe on the rights of any person,
except for such infringement as is not reasonably likely to have a Material Adverse Effect,
and neither Ventas nor any Subsidiary has received any notice of, and otherwise has no
knowledge of, any threatened or existing action, suit, proceeding or claim by any person
challenging use of the Intellectual Property by Ventas and the Subsidiaries.
(xxvi) Tax Returns and Payment of Taxes. (A) All tax returns required to be
filed by Ventas and each Subsidiary have been timely filed in all jurisdictions where such
returns are required to be filed; (B) Ventas and each Subsidiary have paid all taxes,
including, but not limited to, income, value added, property and franchise taxes, penalties
and interest, assessments, fees and other charges due or claimed to be due from such entities
or that are due and payable, other than those being contested in good faith and
for which reserves have been provided in accordance with generally accepted accounting
principles (“GAAP”) or those currently payable without penalty or interest; and (C)
Ventas and each Subsidiary has complied with all withholding tax obligations except, in the
case of any of clause (A), (B) or (C), where the failure to make such required filings,
payments or withholdings is not, individually or in the aggregate, reasonably likely to have
a Material Adverse Effect. Except as described in each of the Disclosure Package and the
Prospectus, none of Ventas or any Subsidiary has knowledge of any material proposed
additional tax assessments against Ventas or any of the Subsidiaries or their assets or
property.
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(xxvii) Certain ERISA Matters. None of Ventas or any of the Subsidiaries has
any liability for any prohibited transaction or accumulated funding deficiency (within the
meaning of Section 412 of the Code) or any complete or partial withdrawal liability with
respect to any pension, profit sharing or other plan which is subject to the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), to which Ventas or any
Subsidiary makes or ever has made a contribution and in which any employee of Ventas or any
Subsidiary is or has ever been a participant. With respect to such plans, Ventas and each
Subsidiary is in compliance in all material respects with all applicable provisions of
ERISA.
(xxviii) Investment Company Act. No Ventas Entity is, nor upon the issuance
and sale of the Notes as herein contemplated and any application of the net proceeds
therefrom as described in each of the Disclosure Package and the Prospectus will be, an
“investment company” or a company “controlled” by an “investment company” as such terms are
defined in the Investment Company Act of 1940, as amended (the “1940 Act”).
(xxix) Insurance for Properties. Each of Ventas and each Subsidiary maintains
or causes to be maintained by the lessee under the leases for its properties or by the
manager of its properties insurance covering its properties (including title to its
properties), assets, operations, personnel and businesses, and such insurance is of such
type and in such amounts in accordance with customary industry practice and in Ventas’
reasonable judgment sufficient to protect Ventas and the Subsidiaries and their businesses.
(xxx) Accounting and Other Controls. Ventas maintains effective internal
control over financial reporting as defined in the Exchange Act. Each of Ventas and each
Subsidiary maintains a system of internal accounting controls sufficient to provide
reasonable assurance that: (A) transactions are executed in accordance with management’s
general or specific authorizations; (B) transactions are recorded as necessary to permit
preparation of its financial statements in conformity with GAAP and to maintain
accountability for assets; (C) access to assets is permitted only in accordance with
management’s general or specific authorization; and (D) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(xxxi) No Material Weakness in Internal Controls. Except as disclosed in each
of the Disclosure Package and the Prospectus or in any document incorporated by reference
therein, since the end of Ventas’ most recent audited fiscal year, there has been (i) no
material weakness in Ventas’ internal control over financial reporting (whether or not
remediated) and (ii) no change in Ventas’ internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect, Ventas’ internal control
over financial reporting.
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(xxxii) No Material Adverse Change in Business. As of September 30, 2010,
neither Ventas nor any Subsidiary has incurred any material liabilities or obligations,
direct or contingent, that were not set forth in Ventas’ consolidated balance sheet as of
September 30, 2010, or in the notes thereto, incorporated by reference in each of the
Disclosure Package and the Prospectus, or otherwise described therein, other than the
performance by Ventas and each Subsidiary of their respective obligations under ordinary
course executory contracts that are not in default, that would not reasonably be expected to
have a Material Adverse Effect and that are not required by GAAP, as modified by the
Securities Act and the rules and regulations of the Commission thereunder (the
“Securities Act Regulations”), the Exchange Act and the rules and regulations of the
Commission thereunder (the “Exchange Act Regulations”), to be disclosed on a
regularly prepared balance sheet or in the notes thereto. Since the respective dates as of
which information is given in each of the Registration Statement, Disclosure Package and the
Prospectus, except as otherwise stated therein, (a) none of Ventas or any Subsidiary has (1)
incurred any liability or obligation, direct or contingent, that is, individually or in the
aggregate, reasonably likely to have a Material Adverse Effect, or (2) entered into any
material transaction not in the ordinary course of business, (b) there has not been any
event or development in respect of the business or condition (financial or other) of Ventas
and the Subsidiaries that, individually or in the aggregate, is reasonably likely to have a
Material Adverse Effect and (c) there has not been any change in the long-term debt of
Ventas or any of the Subsidiaries or in the authorized capitalization of Ventas.
(xxxiii) Section 7 of the Exchange Act or Regulations T, U, X. Neither Ventas
nor any Subsidiary (or any agent thereof acting on its behalf other than the Underwriters,
as to whom Xxxxxx makes no representation or warranty) has taken, and none of them will
take, any action that would cause this Agreement or the issuance or sale of the Notes to
violate Section 7 of the Exchange Act or Regulations T, U or X of the Board of Governors of
the Federal Reserve System, as in effect, or as the same may hereafter be in effect, at the
Closing Time.
(xxxiv) Independent Accountants and Financial Statements. Ernst & Young LLP is
an independent public accountant with respect to Ventas, as required by the Securities Act,
the Securities Act Regulations and the Exchange Act. The historical financial statements,
together with the related financial schedules and notes thereto, included or incorporated by
reference in each of the Base Prospectus, the Disclosure Package and the Prospectus that
relate to Ventas and the Subsidiaries present fairly in all material respects the
consolidated financial position and results of operations of Ventas and the Subsidiaries at
the respective dates and for the respective periods indicated. Such historical
financial statements have been prepared in accordance with GAAP applied on a
consistent basis throughout the periods presented (except as disclosed in each of the Base
Prospectus, the Disclosure Package and the Prospectus). The supporting schedules of Ventas
and the Subsidiaries, if any, included or incorporated by reference in each of the Base
Prospectus, the Disclosure Package and the Prospectus that relate to Ventas and the
Subsidiaries present fairly in all material respects in accordance with GAAP the information
required to be stated therein and comply as to form in all material respects with the
applicable accounting requirements of the Securities Act. The pro forma financial
statements and the
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related notes thereto included in the Base Prospectus, the Disclosure
Package and the Prospectus have been prepared on a basis consistent with such historical
financial statements, and the assumptions used in the preparation thereof are reasonable and
the adjustments used therein are appropriate to give effect to the transactions and
circumstances referred to therein. All disclosures contained in the Base Prospectus, the
Disclosure Package and the Prospectus regarding “non-GAAP financial measures” (as such term
is defined by the rules and regulations of the Commission) comply in all material respects
with Regulation G under the Exchange Act and Item 10 of Regulation S-K under the Securities
Act, to the extent applicable. The other financial and statistical information and data
included or incorporated by reference in each of the Base Prospectus, the Disclosure Package
and the Prospectus relating to Ventas and the Subsidiaries are accurately presented in all
material respects and prepared on a basis consistent with the financial statements and the
books and records of Ventas and the Subsidiaries. Other than the financial statements or
supporting schedules included or incorporated by reference in the Base Prospectus, the
Disclosure Package and the Prospectus, no other financial statements or supporting schedules
are required to be included or incorporated by reference in the Base Prospectus, the
Disclosure Package and the Prospectus.
(xxxv) Solvency. Each of the Ventas Entities is and will be, immediately
following the issuance of the Notes at the Closing Time, Solvent (as defined below). None
of the Ventas Entities is contemplating either the filing of a petition by it under any
bankruptcy or insolvency laws or the liquidating of all or a substantial portion of its
property, and none of the Ventas Entities has knowledge of any person contemplating the
filing of any such petition against any of the Ventas Entities. As used herein,
“Solvent” shall mean, for any person on a particular date, that on such date (a) the
fair value of the property of such person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such person, (b) the present fair
salable value of the assets of such person is not less than the amount that will be required
to pay the probable liability of such person on its debts as they become absolute and
matured, (c) such person does not intend to, and does not believe that it will, incur debts
and liabilities beyond such person’s ability to pay as such debts and liabilities mature,
(d) such person is not engaged in a business or a transaction, and is not about to engage in
a business or a transaction, for which such person’s property would constitute an
unreasonably small capital and (e) such person is able to pay its debts as they become due
and payable.
(xxxvi) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement, the Disclosure Package and the
Prospectus, including, but not limited to, the most recent Annual Report of Ventas on
Form 10-K filed with the Commission, as amended by the Current Report on Form 8-K filed
on November 8, 2010 (the “Annual Report”), and each quarterly report of Ventas on
Form 10-Q and each other Current Report of Ventas on Form 8-K, in each case filed with the
Commission since the end of the fiscal year to which the Annual Report relates, and Ventas’
Proxy Statement for the 2010 Annual Meeting of Stockholders, prior to the Execution Time,
when they became effective or at the time they were or hereafter are filed with the
Commission (the “Incorporated Documents”), complied or will comply in all material
respects with the requirements of the Securities Act and the Securities Act Regulations or
the Exchange Act and Exchange Act Regulations, as applicable, and, when read together with
the other information in each of the Disclosure Package and the Prospectus, at the
Applicable Time and at the Closing Time, do not and will not contain an untrue statement of
a material fact or omit to state a material fact necessary to make the statements therein
not misleading.
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(xxxvii) No Stabilization or Manipulation. None of Ventas or any Subsidiary
or, to the best of its knowledge, any of their directors, officers or affiliates has taken
or will take, directly or indirectly, any action designed to, or that would be reasonably be
expected to, cause or result in stabilization or manipulation of the price of the Notes to
facilitate the sale or resale of the Notes.
(xxxviii) Distribution. Except as described in the section of the preliminary
prospectus and Prospectus entitled “Underwriting,” there are no contracts, agreements or
understandings between Ventas or any Significant Subsidiary and any other person that would
give rise to a valid claim against Ventas, any Significant Subsidiary or the Underwriters
for a brokerage commission, finder’s fee or like payment in connection with the issuance,
purchase and sale of the Notes.
(xxxix) Statistical and Other Data. All (A) statistical and market-related
data and (B) data (including financial information) with respect to Kindred Healthcare Inc.,
Brookdale Senior Living Inc., Sunrise Senior Living, Inc. or Atria Senior Living Group, Inc.
and One Lantern Senior Living Inc. (together, “Atria”) included in each of the
Disclosure Package and the Prospectus are based on or derived from sources that the Ventas
Entities reasonably believe to be accurate in all material respects or represent the Ventas
Entities’ good faith estimates that are made on the basis of data derived from sources the
Ventas Entities reasonably believe to be reliable and accurate in all material respects.
(xl) No Default Under Note Documents, Etc. As of the Closing Time there will
exist no event or condition which would constitute a default or an event of default under
any of the Note Documents. The Note Documents will conform in all material respects to the
respective statements relating thereto contained in each of the Disclosure Package and the
Prospectus.
(xli) Xxxxxxxx-Xxxxx Compliance. Ventas is in compliance in all material
respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002.
(xlii) Atria Representations and Warranties. To the knowledge of the Ventas
Entities, all of the representations and warranties made by Atria in Section 4(a) of the
Merger Agreement dated as of October 21, 2010 by and among Ventas, Atria and the other
parties thereto (the “Merger Agreement”), are true and correct (without giving
effect to any limitation as to “materiality” or “Material Adverse Effect” set forth
therein), except that any representations and warranties that expressly speak as of a
particular date, were true and correct (without giving effect to any limitation as to
“materiality” or “Material Adverse Effect” set forth therein) as of such particular date,
except, in each case, where the failure to be so true and correct would not, individually or
in the aggregate, reasonably be expected to result in a Material Adverse Effect assuming the
consummation of the transactions contemplated by the Merger Agreement.
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(xliii) No Unlawful Payments. None of the Ventas Entities nor, to the
knowledge of the Ventas Entities, any director, officer, agent or employee of the Ventas
Entities is aware of or has taken any action, directly or indirectly, that would result in a
violation by such persons of the FCPA, including, without limitation, making use of the
mails or any means or instrumentality of interstate commerce corruptly in furtherance of an
offer, payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give or authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the FCPA) or any foreign political party or
official thereof or any candidate for foreign political office, in contravention of the
FCPA, and the Ventas Entities and, to the knowledge of the Ventas Entities, their affiliates
have conducted their business in compliance in all material respects with the FCPA.
“FCPA” means the Foreign Corrupt Practices Act of 1977, as amended, and the rules
and regulations thereunder.
(xliv) No Conflict with Money Laundering Laws. The operations of the Ventas
Entities and their Subsidiaries are in compliance in all material respects with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of all applicable
jurisdictions, the rules and regulations thereunder and any related or similar rules,
regulations or guidelines issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or
before any court or governmental agency, authority or body or any arbitrator involving the
Ventas Entities and their Subsidiaries with respect to the Money Laundering Laws is pending
or, to the best knowledge of the Ventas Entities, threatened.
(xlv) No Conflict with OFAC Laws. None of Ventas Entities or their
Subsidiaries nor, to the knowledge of the Ventas Entities, any director, officer, agent,
employee or affiliate of the Ventas Entities or any of their Subsidiaries is currently
subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the
U.S. Treasury Department (“OFAC”); and the Ventas Entities will not directly or
indirectly use the proceeds of the offering, or lend, contribute or otherwise make available
such proceeds to any subsidiary, joint venture partner or other person or entity, for the
purpose of financing the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
(b) Officer’s Certificates. Any certificate signed by any officer of any Ventas Entity or any
Subsidiary addressed and delivered to the Underwriters or to counsel for the Underwriters shall be
deemed a representation and warranty by the Ventas Entities to the Underwriters as to the matters
covered thereby. The Ventas Entities acknowledge that the Underwriters and, for purposes of the
opinions to be delivered to the Underwriters pursuant to Section 5 hereof, counsel to the Ventas
Entities and counsel to the Underwriters will rely upon the accuracy of the foregoing
representations, and the Ventas Entities hereby consent to such reliance.
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SECTION 2. Sale and Delivery to the Underwriters; Closing; Representations and
Warranties and Covenants of the Underwriters.
(a) Purchase and Sale. Delivery of the Notes to be purchased by the Underwriters and payment
therefor shall be made at the offices of Xxxxxx Xxxxxx & Xxxxxxx llp (or such other place
as may be agreed to by the Ventas Entities and the Representatives) at 9:00 a.m. New York time, on
November 16, 2010, or such other time and date, as the Representatives and the Ventas Entities
shall agree (the time and date of such closing are called the “Closing Time”). On the
basis of the representations, warranties and agreements herein contained, and upon the terms but
subject to the conditions herein set forth, the Underwriters agree, severally and not jointly, to
purchase from the Issuers the respective aggregate principal amount of Notes set forth opposite
their names on Schedule A. The purchase price per Note to be paid by the several
Underwriters to the Company shall be equal to 98.928% of the principal amount thereof, plus accrued
and unpaid interest, if any, from November 8, 2010 to the Closing Time.
(b) Public Offering of the Notes. The Representatives hereby advise the Ventas Entities that
the Underwriters intend to offer for sale to the public, as described in the Disclosure Package and
the Prospectus, their respective portions of the Notes as soon after this Agreement has been
executed, and the Representatives, in their sole judgment, have determined is advisable and
practicable.
(c) Payment for the Notes. Payment for the Notes shall be made at the Closing Time by wire
transfer of immediately available funds to the order of the Ventas Entities. It is understood that
the Representatives have been authorized, for their own account and the accounts of the several
Underwriters, to accept delivery of and receipt for, and make payment of the purchase price for,
the Notes.
(d) Delivery of the Notes. Delivery of the Notes shall be made through the facilities of The
Depository Trust Company (“DTC”) unless the Representatives shall otherwise instruct.
(e) Delivery of Prospectus to the Underwriters. Not later than 10:00 a.m. on the second
business day following the date the Notes are first released by the Underwriters for sale to the
public, to the extent required, the Ventas Entities shall deliver or cause to be delivered, copies
of the Prospectus in such quantities and at such places as the Representatives shall reasonably
request.
SECTION 3. Covenants of the Ventas Entities and of the Underwriters. The Ventas
Entities, jointly and severally, covenant with the Underwriters and, as applicable, the
Underwriters covenant with the Ventas Entities as follows:
(a) Representatives’ Review of Proposed Amendments and Supplements. During the period
beginning on the Applicable Time and ending on the later of the Closing Time or such date,
as in the opinion of counsel for the Underwriters, the Prospectus is no longer required by
law to be delivered in connection with sales by an Underwriter or dealer, including in
circumstances where such requirement may be satisfied pursuant to
Rule 172 (the “Prospectus Delivery Period”), prior to amending or supplementing
the Registration Statement, the Disclosure Package or the Prospectus, the Ventas Entities
shall furnish to the Representatives for review a copy of each such proposed amendment or
supplement, and the Ventas Entities shall not file or use any such proposed amendment or
supplement to which the Representatives reasonably object within a reasonable time.
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(b) Securities Act Compliance. After the date of this Agreement, the Ventas Entities
shall promptly advise the Representatives in writing (i) when the Registration Statement, if
not effective at the Execution Time, shall have become effective, (ii) of the receipt of any
comments of, or requests for additional or supplemental information from, the Commission,
(iii) of the time and date of any filing of any post-effective amendment to the Registration
Statement or any amendment or supplement to any preliminary prospectus or the Prospectus,
(iv) of the time and date that any post-effective amendment to the Registration Statement
becomes effective, and (v) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or of any order or notice preventing or
suspending the use of the Registration Statement, any preliminary prospectus or the
Prospectus, or of any receipt by the Ventas Entities of any notification with respect to the
suspension of the qualification of the Notes for sale in any jurisdiction or of the
threatening or initiation of any proceedings for any of such purposes. The Ventas Entities
shall use commercially reasonable efforts to prevent the issuance of any such stop order or
notice of prevention or suspension of such use. If the Commission shall enter any such stop
order or issue any such notice at any time, the Ventas Entities will use commercially
reasonable efforts to obtain the lifting or reversal of such order or notice at the earliest
practicable moment, or, subject to Section 3(a) hereof, will file an amendment to the
Registration Statement or will file a new registration statement and use its reasonable best
efforts to have such amendment or new registration statement declared effective as soon as
practicable. Additionally, the Ventas Entities agree that they shall comply with the
provisions of Rules 424(b) and 430B, as applicable, under the Securities Act, including with
respect to the timely filing of documents thereunder.
(c) Exchange Act Compliance. During the Prospectus Delivery Period, the Ventas
Entities will file all documents required to be filed with the Commission pursuant to
Section 13, 14 or 15 of the Exchange Act in the manner and within the time periods required
by the Exchange Act;
(d) Final Term Sheet. The Ventas Entities will prepare a final term sheet containing
solely a description of the Notes, including the price at which the Notes are to be sold to
the public, in a form attached hereto, and will file such term sheet pursuant to Rule 433(d)
under the Securities Act within the time required by such rule (such term sheet, the
“Final Term Sheet”).
(e) Permitted Free Writing Prospectuses. The Ventas Entities represent, jointly and
severally, that they have not made, and agree that, unless they obtain the prior written
consent of the Representatives, they will not make, any offer relating to the Notes that
constitutes or would constitute an Issuer Free Writing Prospectus or that otherwise
constitutes or would constitute a “free writing prospectus” (as defined in Rule 405 of the
Securities Act) or a portion thereof required to be filed by the Ventas Entities with
the Commission or retained by the Ventas Entities under Rule 433 of the Securities Act;
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provided that the prior written consent of the Representatives hereto shall be
deemed to have been given in respect of the Issuer Free Writing Prospectuses included in
Schedule B hereto and any electronic road show. Any such free writing prospectus
consented to by the Representatives is hereinafter referred to as a “Permitted Free
Writing Prospectus.” The Ventas Entities agree that (i) they have treated and will
treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus, and (ii) they have complied and will comply, as the case may be, with the
requirements of Rules 164 and 433 of the Securities Act applicable to any Permitted Free
Writing Prospectus, including in respect of timely filing with the Commission, legending and
record keeping. The Ventas Entities consent to the use by any Underwriter of a free writing
prospectus that (a) is not an “issuer free writing prospectus” as defined in Rule 433, and
(b) contains only (i) information describing the preliminary terms of the Notes or their
offering, (ii) information that describes the final terms of the Notes or their offering and
that is included in the Final Term Sheet of the Ventas Entities contemplated in Section
1(iv) hereof, or (iii) information permitted under Rule 134 under the Securities Act;
provided that each Underwriter severally covenants with the Ventas Entities not to
take any action without the Ventas Entities’ consent (which consent shall be confirmed in
writing) that would result in the Ventas Entities being required to file with the Commission
under Rule 433(d) under the Securities Act a free writing prospectus prepared by or on
behalf of such Underwriter that otherwise would not be required to be filed by the Ventas
Entities thereunder, but for the action of the Underwriter.
(f) Amendments and Supplements to the Registration Statement, Disclosure Package and
Prospectus and Other Securities Act Matters. If, during the Prospectus Delivery Period, any
event or development shall occur or condition exist as a result of which the Disclosure
Package or the Prospectus as then amended or supplemented would include any untrue statement
of a material fact or omit to state any material fact necessary in order to make the
statements therein in the light of the circumstances under which they were made or then
prevailing, as the case may be, not misleading, or if it shall be necessary to amend or
supplement the Disclosure Package or the Prospectus, or to file under the Exchange Act any
document incorporated by reference in the Disclosure Package or the Prospectus, in order to
make the statements therein, in the light of the circumstances under which they were made or
then prevailing, as the case may be, not misleading, or if in the reasonable judgment of the
Ventas Entities or their counsel it is otherwise necessary to amend or supplement the
Registration Statement, the Disclosure Package or the Prospectus, or to file under the
Exchange Act any document incorporated by reference in the Disclosure Package or the
Prospectus, or to file a new registration statement containing the Prospectus, in order to
comply with applicable law, including in connection with the delivery of the Prospectus, the
Ventas Entities agree to (i) notify the Representatives of any such event or condition and
(ii) upon reasonable notice to the Representatives, promptly prepare (subject to Section
3(a) and 3(e) hereof), file with the Commission (and use their reasonable best efforts to
have any amendment to the Registration Statement or any new registration statement to be
declared effective) and furnish at their own expense to the Underwriters and to dealers,
amendments or supplements to the Registration
Statement, the Disclosure Package or the Prospectus, or any new registration statement,
necessary in order to make the statements in the Disclosure Package or the Prospectus as so
amended or supplemented, in the light of the circumstances under which they were made or
then prevailing, as the case may be, not misleading or so that the Registration Statement,
the Disclosure Package or the Prospectus, as amended or supplemented, will comply with
applicable law.
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(g) Copies of the Registration Statements and the Prospectus. The Ventas Entities will
furnish to the Representatives and counsel for the Underwriters signed copies of the
Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus
by an Underwriter or dealer may be required by the Securities Act, as many copies of each
preliminary prospectus, the Prospectus and any amendments and supplements thereto (including
any documents incorporated or deemed incorporated by reference therein) and the Disclosure
Package as the Representatives may reasonably request.
(h) Blue Sky Qualifications. The Ventas Entities agree to use their reasonable best
efforts, in cooperation with the Underwriters, to qualify the Notes for offering and sale
under the applicable securities laws of such states and other jurisdictions (domestic or
foreign) as the Underwriters may designate and to maintain such qualifications in effect so
long as required for the distribution of the Notes; provided, however, that
the Ventas Entities shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in
which they are not so qualified or to subject themselves to taxation in respect of doing
business in any jurisdiction in which they are not otherwise so subject. In each
jurisdiction in which the Notes have been so qualified, the Ventas Entities will file such
statements and reports as may be required by the laws of such jurisdiction to continue such
qualification in effect so long as required for the distribution of the Notes.
(i) Clear Market. Without the prior written consent of the Representatives, the Ventas
Entities will not, during the period starting on the date hereof and ending on the Closing
Date, offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to purchase,
lend or otherwise transfer or dispose of, directly or indirectly, any non-convertible debt
securities of the Ventas Entities or any Subsidiary (other than as contemplated by this
Agreement).
(j) Use of Proceeds. The Issuers will use the net proceeds from the sale of the Notes
in the manner described in each of the Disclosure Package and the Prospectus under “Use of
Proceeds.”
(k) Periodic Reporting Obligations. During the Prospectus Delivery Period Ventas shall
file, on a timely basis, with the Commission and the New York Stock Exchange all reports and
documents required to be filed under the Exchange Act.
(l) Filing Fees. The Ventas Entities agree to pay the required Commission filing fees
relating to the Notes within the time required by Rule 456(b)(1) of the Securities
Act without regard to the proviso therein and otherwise in accordance with Rules
456(b) and 457(r) of the Securities Act.
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(m) DTC. The Ventas Entities will use their reasonable best efforts to obtain the
approval of the Notes by DTC for “book-entry” transfer and agree to comply with all of their
agreements set forth in its representation letters relating to the approval of the Notes by
DTC for “book-entry” transfer.
(n) Indenture. The Indenture shall have been executed and delivered by the Ventas
Entities, and the Underwriters shall have received copies, conformed as executed, thereof.
(o) Delivery of Note Documents. The Ventas Entities shall deliver to the Underwriters
a true and correct copy of each of the Note Documents, together with all related agreements
and all schedules and exhibits thereto.
SECTION 4. Payment of Expenses.
(a) Expenses. The Ventas Entities, jointly and severally, will pay all costs, fees and
expenses incident to the performance of their obligations under this Agreement, including (i) the
preparation, notarization (if necessary), and delivery to the Underwriters of the Note Documents,
and such other documents as may be reasonably required in connection with the offering, purchase,
sale, issuance or delivery of the Notes, (ii) the issuance, transfer and delivery of the Notes and
the Guarantee to the Underwriters, including any transfer taxes and any stamp or other duties
payable upon the sale, issuance or delivery of the Notes to the Underwriters, (iii) the fees and
disbursements of the Ventas Entities’ counsel, accountants and other advisors, (iv) the
qualification of the Notes under securities laws in accordance with the provisions of Section 3(h)
hereof, including filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of the Blue Sky Survey
and any supplements thereto (provided that the Ventas Entities will only be responsible for
paying costs, fees and expenses incurred under this clause (iv) in an aggregate amount not to
exceed $5,000), (v) the preparation, printing and delivery to the Underwriters of such copies of
the Disclosure Package and Prospectus (including financial statements and exhibits) and any
amendments or supplements thereto, as may be reasonably requested for use in connection with the
offering, (vi) the preparation, printing and delivery to the Underwriters of a reasonable number of
copies of the Blue Sky Survey and any supplement thereto (not to exceed $10,000), (vii) the fees
and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee in
connection with the Indenture and the Notes, (viii) the approval of the Notes by DTC for
“book-entry” transfer, (ix) the rating of the Notes by rating agencies, (x) the performance by the
Ventas Entities of their other obligations under the Note Documents (xi) all other fees, costs and
expenses referred to in Item 14 of Part II of the Registration Statement.
(b) Termination of Agreement. If this Agreement is terminated by the Underwriters in
accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the Ventas Entities agree to
reimburse the Underwriters for all of their reasonable out-of-pocket costs and expenses (including
the reasonable fees and disbursements of counsel) for the Underwriters in connection with this
Agreement and the offering contemplated hereby.
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SECTION 5. Conditions of the Underwriters’ Obligations. The obligations of the
Underwriters hereunder are subject to the accuracy of the representations and warranties of the
Ventas Entities contained in Section 1 hereof and in certificates of any officer of any Ventas
Entity or any Subsidiary delivered pursuant to the provisions hereof, to the performance by the
Ventas Entities of their covenants and other obligations hereunder, and to the following further
conditions:
(a) Compliance with Registration Requirements; No Stop Order. For the period from and
after effectiveness of this Agreement and prior to the Closing Time and, with respect to the
Notes:
(i) Ventas shall have filed the Prospectus with the Commission (including the
information required by Rule 430A under the Securities Act) in the manner and within
the time period required by Rule 424(b) under the Securities Act;
(ii) The Final Term Sheet, and any other material required to be filed by
Ventas pursuant to Rule 433(d) under the Securities Act, shall have been filed with
the Commission within the applicable time periods prescribed for such filings under
such Rule 433;
(iii) No stop order suspending the effectiveness of the Registration Statement,
or any post-effective amendment to the Registration Statement, shall be in effect
and no proceedings for such purpose shall have been instituted or threatened by the
Commission; and Ventas shall not have received from the Commission any notice
pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic
shelf registration statement form; and
(b) No Proceedings. No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental agency or authority
that would, as of the Closing Time, prevent the issuance of the Notes; except as disclosed
in each of the Disclosure Package and Prospectus, no action, suit or proceeding shall have
been commenced and be pending against or affecting or, to the knowledge of the Ventas
Entities, threatened against any Ventas Entity before any court or arbitrator or any
governmental body, agency or official that is reasonably likely to have a Material Adverse
Effect or to interfere with or adversely affect the issuance of the Notes or the Guarantee
in any jurisdiction or adversely affect the consummation of the transactions contemplated by
any of the Note Documents; and no stop order preventing the use of the Registration
Statement, the Disclosure Package, the Prospectus, or any amendment or supplement thereto
shall be in effect.
(c) No Material Liabilities, Events.
(i) Since September 30, 2010, none of Ventas or any Subsidiary shall have had
any material liabilities or obligations, direct or, contingent, that were not set
forth in Ventas’ consolidated balance sheet as of September 30, 2010 or in the notes
thereto, incorporated by reference in the Base Prospectus, the preliminary
prospectus and the Prospectus or otherwise described in the Disclosure Package
and the Prospectus, other than the performance by Ventas of its obligations under
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ordinary course executory contracts that are not in default, that could not
reasonably be expected to have a Material Adverse Effect and that are not required
by GAAP, as modified by the Securities Act, Securities Act Regulations, the Exchange
Act and Exchange Act Regulations, to be disclosed on a regularly prepared balance
sheet or in the notes thereto. Since the respective dates as of which information
is given in each of the Disclosure Package and the Prospectus, except as otherwise
stated therein, (a) none of Ventas or any Subsidiary shall have (1) incurred any
liability or obligation, direct or contingent, that is, individually or in the
aggregate, reasonably likely to have a Material Adverse Effect, or (2) entered into
any material transaction not in the ordinary course of business, (b) there shall not
been any event or development in respect of the business or condition (financial or
other) of Ventas and the Subsidiaries that, individually or in the aggregate, is
reasonably likely to have a Material Adverse Effect and (c) there shall not have
been any change in the long-term debt of Ventas or any of the Subsidiaries or in the
authorized capitalization of Ventas; and
(ii) There shall not have occurred any downgrading, nor shall any notice have
been given of (x) any intended or potential downgrading or (y) of any review for a
possible change that does not indicate the direction of the possible change, in each
case, in the rating accorded any securities of Ventas or any of its Subsidiaries by
any “nationally recognized statistical rating organization” as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act.
(d) Opinion of Counsel for Company. At Closing Time, the Underwriters shall have
received the favorable opinion, dated as of Closing Time, of:
(i) X. Xxxxxxx Xxxxx, general counsel for the Ventas Entities, in form and
substance reasonably satisfactory to counsel for the Underwriters to the effect set
forth in Exhibit A-1 hereto and to such further effect as counsel to the
Underwriters may reasonably request;
(ii) Xxxxxxx Xxxx & Xxxxxxxxx LLP, as counsel for the Ventas Entities, in form
and substance reasonably satisfactory to counsel for the Underwriters to the effect
set forth in Exhibits A-2 and A-3 hereto and to such further effect as counsel to
the Underwriters may reasonably request; and
(iii) Xxxxxxxxx Xxxxxxx, LLP, as regulatory counsel for the Ventas Entities, in
form and substance reasonably satisfactory to counsel for the Underwriters to the
effect set forth in Exhibit A-4 hereto and to such further effect as counsel to the
Underwriters may reasonably request.
(e) Opinion of Counsel for the Underwriters. At the Closing Time, the Underwriters
shall have received the favorable opinion, dated as of Closing Time, and negative assurance
letter, dated as of the Closing Time, of Xxxxxx Xxxxxx & Xxxxxxx LLP,
counsel for the Underwriters in form and substance reasonably satisfactory to the
Underwriters.
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(f) Officers’ Certificate. At the Closing Time, there shall not have been, since the
date hereof or since the respective dates as of which information is given in the
Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus, the
Prospectus and any amendment or supplement thereto, any material adverse change in the
business, condition, financial or otherwise, results of operations, performance or
properties of Ventas and the Subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Underwriters shall have received a
certificate of the Chief Executive Officer and President of Ventas and the Chief Financial
Officer or Chief Accounting Officer of Ventas, dated as of the Closing Time, to the effect
that (i) there has been no such material adverse change, (ii) the representations and
warranties of the Ventas Entities in Section 1(a) hereof and the provisions in Sections
5(a)(i)-(iii) and, to the knowledge of the Ventas Entities, 5(c)(ii) hereof are true and
correct with the same force and effect as though expressly made at and as of Closing Time,
and (iii) the Ventas Entities have complied with all agreements and satisfied all conditions
on their part to be performed or satisfied at or prior to Closing Time.
(g) Accountant’s Comfort Letter — Ventas. At the Applicable Time, the Underwriters
shall have received from Ernst & Young LLP, a letter, dated such date, in form and substance
reasonably satisfactory to the Underwriters containing statements and information of the
type ordinarily included in accountants’ “comfort letters” to underwriters with respect to
the financial statements of Ventas and the Subsidiaries and certain financial information
contained in the Disclosure Package.
(h) Accountant’s Comfort Letter — Atria. At the Applicable Time, the Underwriters
shall have received from Deloitte & Touche LLP, a letter, dated such date, in form and
substance reasonably satisfactory to the Underwriters containing statements and information
of the type ordinarily included in accountants’ “comfort letters” to underwriters with
respect to the financial statements of Atria and its subsidiaries and certain financial
information contained in the Disclosure Package.
(i) Bring-down Comfort Letter — Ventas. At the Closing Time, the Underwriters shall
have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that
they reaffirm the statements made in the letter furnished pursuant to Section 5(g) hereof,
except that (i) it shall cover the financial information in the Prospectus relating to
Ventas and its Subsidiaries and any amendment or supplement to the Disclosure Package or the
Prospectus and (ii) the specified date referred to shall be a date not more than three
business days prior to Closing Time.
(j) Bring-down Comfort Letter — Atria. At the Closing Time, the Underwriters shall
have received from Deloitte & Touche LLP a letter, dated as of Closing Time, to the effect
that they reaffirm the statements made in the letter furnished pursuant to Section 5(h)
hereof, except that (i) it shall cover the financial information in the Prospectus relating
to Atria and any amendment or supplement to the Disclosure Package or the
Prospectus related thereto and (ii) the specified date referred to shall be a date not
more than three business days prior to Closing Time.
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(k) Good Standing. The Representatives shall have received on and as of the Closing
Time satisfactory evidence of the good standing of the Ventas Entities in their respective
jurisdictions of organization, in each case in writing or any standard form of
telecommunication, from the appropriate governmental authorities of such jurisdictions.
(l) Notes and Indenture. The Notes and the Indenture shall be executed by each Ventas
Entity in substantially the form previously delivered to the Underwriters.
(m) Additional Documents. At Closing Time, counsel for the Underwriters shall have
been furnished with such documents and opinions as they may reasonably require for the
purpose of enabling them to pass upon the issuance and sale of the Notes as herein
contemplated, or in order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Ventas Entities in connection with the issuance and sale of the
Notes as herein contemplated shall be reasonably satisfactory in form and substance to the
Underwriters and counsel for the Underwriters.
(n) Termination of Agreement. If any condition specified in this Section 5(n) shall
not have been fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Underwriters by notice to the Ventas Entities at any time at or prior to
Closing Time, and such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof and except that Sections 1, 6, 7 and 8 hereof
shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of the Underwriters by the Ventas Entities. Each of the Ventas Entities,
jointly and severally, agrees to indemnify and hold harmless the Underwriters and each person, if
any, who controls the Underwriters 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 the
Underwriters and the agents, employees, officers and directors of any such controlling person as
follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of (a) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, or any amendment thereto, including any
information deemed to be a part thereof pursuant to Rule 430B or 430C under the Securities
Act, or the omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading; or (b) any untrue
statement or alleged untrue statement of a material fact contained in the Disclosure
Package, any Issuer Free Writing Prospectus, any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission or alleged omission therefrom of a
material fact, in each case, necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
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(ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section 6(c) below)
any such settlement is effected with the written consent of Ventas; and
(iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by the Underwriters), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made therein in reliance upon and in conformity with the
Underwriter Information. This indemnity agreement will be in addition to any liability that the
Ventas Entities may otherwise have, including, but not limited to, liability under this Agreement.
(b) Indemnification of Ventas Entities, Directors and Officers. Each Underwriter, severally
and not jointly, agrees to indemnify and hold harmless the Ventas Entities, each person, if any,
who controls any Ventas Entity within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act and each of their respective agents, employees, officers and directors
and the agents, employees, officers and directors of any such controlling person against any and
all loss, liability, claim, damage and expense described in the indemnity contained in Section 6(a)
hereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions relating to such Underwriter, made in the Registration Statement, any
Issuer Free Writing Prospectus, any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with the information furnished by such
Underwriter through the Representatives expressly for use in the Registration Statement, any Issuer
Free Writing Prospectus, any preliminary prospectus or the Prospectus; provided that, with
respect to the preceding sentence, the Ventas Entities acknowledge that the only information
furnished in writing by the Underwriters through the Representatives expressly for use in the
Registration Statement, any Issuer Free Writing Prospectus, any preliminary prospectus or the
Prospectus is the statements contained in the fourth paragraph and the eighth paragraph under the
caption “Underwriting” in the Prospectus (the “Underwriter Information”).
(c) [reserved.]
(d) Actions Against Parties; Notification. Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party
shall not relieve such indemnifying party from any liability hereunder, except to the extent it is
materially prejudiced as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In the case of parties
indemnified pursuant to Section 6(a) hereof, counsel to the
indemnified parties shall be
selected by the Representatives, subject to the reasonable approval of the indemnifying party,
and, in the case of parties indemnified pursuant to Section 6(b)
hereof, counsel to the
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indemnified
parties shall be selected by Xxxxxx, subject to the reasonable approval of the indemnifying party.
An indemnifying party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party; provided
further, if the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded that a conflict may
arise between the positions of the indemnifying party and the indemnified party in conducting the
defense of any such action or that there may be legal defenses available to it and/or other
indemnified parties that are different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select separate counsel to assume
such legal defenses and to otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of such indemnifying party’s election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 6 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the indemnified party
shall have employed separate counsel in accordance with the proviso to the preceding sentence (it
being understood, however, that the indemnifying party shall not be liable for the expenses of more
than one separate counsel (other than local counsel), reasonably approved by the indemnifying party
(or by the Representatives in the case this Section 6), representing the indemnified parties who
are parties to such action) or (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action, in each of which cases the fees and expenses of counsel
shall be at the expense of the indemnifying party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one action or separate
but similar or related actions in the same jurisdiction arising out of the same general allegations
or circumstances. No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any judgment with respect to
any litigation, or any investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or contribution could
reasonably be sought under this Section 6 or Section 7 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(e) Settlement Without Consent if Failure to Reimburse. If at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature
contemplated by Section 6(a)(ii) hereof effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such request prior
to the date of such settlement; provided, that an indemnifying party shall not be liable
for any such settlement effected without its consent if such indemnifying party (1) reimburses such
indemnified party in accordance with such request to the extent it considers such request to be
reasonable and (2) provides written notice to the indemnified party substantiating the unpaid
balance as unreasonable, in each case prior to the date of such settlement.
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(f) Other Agreements With Respect to Indemnification. The provisions of this Section 6 shall
not affect any agreement between the Ventas Entities with respect to indemnification.
SECTION 7. Contribution. If the indemnification provided for in Section 6 hereof is
for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of
any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and
expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate
to reflect the relative benefits received by the Ventas Entities on the one hand and the
Underwriters on the other hand from the offering of the Notes pursuant to this Agreement or (ii) if
the allocation provided by clause (i) 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 the Ventas Entities on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Ventas Entities on the one hand and the Underwriters on
the other hand in connection with the offering of the Notes pursuant to this Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from the offering of the
Notes pursuant to this Agreement (before deducting expenses) received by the Issuers and the total
discount received by the Underwriters, in each case as set forth in this Agreement, bear to the
aggregate initial offering price of the Notes as set forth on the cover of the Prospectus.
The relative fault of the Ventas Entities, on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether any such untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a material fact
relates to information supplied by the Ventas Entities or the Underwriter Information and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Ventas Entities and the Underwriters 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 which does not take account of the equitable considerations referred to above
in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
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Notwithstanding the provisions of this Section 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Notes purchased
by it and distributed to the public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission. The Underwriters’ obligations to contribute
pursuant to this Section 7 shall be several in proportion to their respective purchase obligations
hereunder and not joint.
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.
For purposes of this Section 7, each officer and director of each of the Underwriters, and
each person, if any, who controls the Underwriters within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act shall have the same rights to contribution as
the Underwriters, and each officer and director of any Ventas Entity, and each person, if any, who
controls any Ventas Entity within the meaning of Section 15 of the Securities Act or Section 20(a)
of the Exchange Act shall have the same rights to contribution as such Ventas Entity.
The provisions of this Section 7 shall not affect any agreement among the Ventas Entities with
respect to contribution.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement or in certificates of
officers of the Ventas Entities or any of the Subsidiaries submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any investigation made by or on behalf of the
Underwriters or controlling person, or by or on behalf of Ventas, and shall survive delivery of the
Notes to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Underwriters may terminate this Agreement, by notice to Ventas,
at any time at or prior to Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the Registration
Statement, any Issuer Free Writing Prospectus, any preliminary prospectus or Prospectus (exclusive
of any amendment or supplement thereto), any material adverse change in the business, condition
(financial or other), results of operations, performance, properties or business prospects of
Ventas and the Subsidiaries considered as one enterprise, whether or not arising in the ordinary
course of business, or (ii) if there has occurred any material adverse change in the financial
markets in the United States or in the international financial markets, any outbreak of hostilities
or escalation thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the Underwriters,
impracticable or inadvisable to market the Notes in the manner and on the terms described in the
Prospectus or to enforce contracts for the sale of the Notes, or (iii) if trading in any securities
of the Ventas Entities has been suspended or materially limited by the Commission or the New York
Stock Exchange, or if trading generally on the American Stock Exchange or the New York
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Stock Exchange or in the Nasdaq National Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the Commission, FINRA or any
other governmental authority, or a material disruption has occurred in commercial banking or
securities settlement or clearance services in the United States, or (iv) if a banking moratorium
has been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section 9(b), such
termination shall be without liability of any party to any other party except as provided in
Section 6 hereof, and provided further that Sections 1, 6, 7 and 8 hereof shall survive such
termination and remain in full force and effect.
SECTION 10. Default of One or More of the Several Underwriters. If any one or more of
the several Underwriters shall fail or refuse to purchase Notes that it or they have agreed to
purchase hereunder at the Closing Time, and the aggregate principal amount of Notes which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not exceed 10%
of the aggregate principal amount of the Notes to be purchased on such date, the other Underwriters
shall be obligated, severally, in the proportions that the principal amount of Notes set forth
opposite their respective names on Schedule A bears to the aggregate principal amount of
Notes set forth opposite the names of all such non-defaulting Underwriters, or in such other
proportions as may be specified by the Underwriters with the consent of the non-defaulting
Underwriters, to purchase the Notes which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date. If any one or more of the Underwriters shall fail or
refuse to purchase Notes and the aggregate principal amount of Notes with respect to which such
default occurs exceeds 10% of the aggregate principal amount of Notes to be purchased at the
Closing Time, and arrangements satisfactory to the Underwriters and the Issuers for the purchase of
such Notes are not made within 48 hours after such default, this Agreement shall terminate without
liability of any party to any other party (other than defaulting Underwriters) except that the
provisions of Sections 3, 4, 6 and 7 hereof shall at all times be effective and shall survive such
termination. In any such case, either the Underwriters or the Issuers shall have the right to
postpone the Closing Time, as the case may be, but in no event for longer than seven days in order
that the required changes, if any, to the Disclosure Package or Prospectus or any other documents
or arrangements may be effected.
As used in this Agreement, the term “Underwriter” shall be deemed to include any person
substituted for a defaulting Underwriter under this Section 10. Any action taken under this
Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
SECTION 11. No Advisory or Fiduciary Responsibility. Each of the Ventas Entities
acknowledges and agrees on its behalf that: (i) the purchase and sale of the Notes pursuant to
this Agreement, including the determination of the offering price of the Notes and any related
discounts and commissions, is an arm’s-length commercial transaction between the Ventas Entities,
on the one hand, and the Underwriters, on the other hand, and the Ventas Entities are capable of
evaluating and understanding and understand and accept the terms, risks and conditions of the
transactions contemplated by this Agreement; (ii) in connection with each transaction
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contemplated hereby the Underwriters are and have been acting solely as principals and are not
the agents or fiduciaries of the Ventas Entities or their respective affiliates, stockholders,
creditors or employees or any other party; (iii) the Underwriters have not assumed and will not
assume an advisory or fiduciary responsibility in favor of the Ventas Entities with respect to any
of the transactions contemplated hereby (irrespective of whether the Underwriters have advised or
are currently advising the Ventas Entities on other matters) or any other obligation to the Ventas
Entities with respect to such transactions except the obligations expressly set forth in this
Agreement; (iv) the Underwriters and their respective affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Ventas Entities; and (v) the
Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the
offering contemplated hereby and the Ventas Entities have consulted their own legal, accounting,
regulatory and tax advisors to the extent they deemed appropriate.
This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Ventas Entities and the Underwriters, or any of them, with respect to the subject
matter hereof. The Ventas Entities hereby waive and release, to the fullest extent permitted by
law, any claims that the Ventas Entities may have against the Underwriters with respect to any
breach or alleged breach of fiduciary duty in connection with the transactions contemplated hereby.
SECTION 12. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by any standard form
of telecommunication. Notices to the Underwriters shall be directed to Xxxxxxx Lynch, Xxxxxx,
Xxxxxx & Xxxxx Incorporated, Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, fax: (000) 000-0000,
attention: Legal Department, Barclays Capital Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
fax: (000) 000-0000, attention: Syndicate Registration, and Citigroup Global Markets Inc., at 000
Xxxxxxxxx Xx., Xxx Xxxx, Xxx Xxxx 00000, attention: General Counsel, with a copy to Xxxxxx Xxxxxx &
Xxxxxxx LLP, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention: Xxxxxxx Xxxxxxxx and
Xxx Xxxxxx; and notices to the Ventas Entities shall be directed to Ventas at 00000 Xxxxxx Xxxx
Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, attention: X. Xxxxxxx Xxxxx, General Counsel, with a
copy to Xxxxxxx Xxxx & Xxxxxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, attention: Xxxxx
Xxxxxx.
SECTION 13. Parties. This Agreement shall each inure to the benefit of and be binding
upon the Underwriters and the Ventas Entities and their respective successors. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters and the Ventas Entities and their respective successors
and the controlling persons and officers and directors referred to in Sections 6 and 7 hereof and
their heirs and legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters and the
Ventas Entities and their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no other person, firm
or corporation. No purchaser of Notes from the Underwriters shall be deemed to be a successor by
reason merely of such purchase.
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SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED IN SUCH STATE. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO
NEW YORK CITY TIME.
SECTION 15. Submission to Jurisdiction. Any legal suit, action or proceeding arising
out of or based upon this Agreement or the transactions contemplated hereby (“Related
Proceedings”) may be instituted in the federal courts of the United States of America located
in the City and County of New York or the courts of the State of New York in each case located in
the City and County of New York (collectively, the “Specified Courts”), and each party
irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding.
Service of any process, summons, notice or document by mail to such party’s address set forth above
shall be effective service of process for any suit, action or other proceeding brought in any such
court. The parties irrevocably and unconditionally waive any objection to the laying of venue of
any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally
waive and agree not to plead or claim in any such court that any such suit, action or other
proceeding brought in any such court has been brought in an inconvenient forum. The Ventas
Entities hereby irrevocably waive, to the fullest extent permitted by applicable law, any and all
right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
SECTION 16. Effect of Headings. The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
SECTION 17. Certain Defined Terms. For purposes of this Agreement, (a) except where
otherwise expressly provided, the term “affiliate” has the meaning set forth in Rule 405
under the 1933 Act; (b) the term “business day” means any day other than a day on which
banks are permitted or required to be closed in New York City; and (c) the term
“Subsidiary” has the meaning set forth in Rule 405 under the 1933 Act.
SECTION 18. Authority of the Representatives. Any action by the Underwriters
hereunder may be taken by the Representatives on behalf of the Underwriters, and any such action
taken by the Representatives shall be binding upon the Underwriters.
SECTION 19. Counterparts. This Agreement may be signed in counterparts (which may
include counterparts delivered by any standard form of telecommunication), each of which shall be
an original and all of which together shall constitute one and the same instrument.
SECTION 20. Amendments or Waivers. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective
unless the same shall be in writing and signed by the parties hereto.
SECTION 21. Patriot Act. In accordance with the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to
obtain, verify and record information that identifies their respective clients, including the
Ventas Entities, which information may include the name and address of their respective clients, as
well as other information that will allow the Underwriters to properly identify their respective
clients.
-31-
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to Ventas a counterpart hereof, whereupon this instrument, along with all counterparts
(including via facsimile), will become a binding agreement between the Underwriters and the Ventas
Entities in accordance with its terms.
Very truly yours, VENTAS, INC. |
||||
By: | /s/ Xxxxxxx X. Xxxxxxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxxxxxx | |||
Title: Executive Vice President and Chief Financial Officer |
||||
VENTAS REALTY, LIMITED PARTNERSHIP | ||||
By: | Ventas, Inc., its General Partner | |||
By: | /s/ Xxxxxxx X. Xxxxxxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxxxxxx | |||
Title: Executive Vice President and Chief Financial Officer |
||||
VENTAS CAPITAL CORPORATION |
|||||
By: | /s/ Xxxxxxx X. Xxxxxxxxxxx | ||||
Name: | Xxxxxxx X. Xxxxxxxxxxx | ||||
Title: Executive Vice President and Chief Financial Officer |
-32-
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED
BARCLAYS CAPITAL INC.
CITIGROUP GLOBAL MARKETS INC.
BARCLAYS CAPITAL INC.
CITIGROUP GLOBAL MARKETS INC.
For themselves and on behalf of the
several Underwriters
several Underwriters
By: | XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX INCORPORATED |
By: | /s/ Xxxx Xxxxxx | |||
Name: | Xxxx Xxxxxx | |||
Title: Managing Director | ||||
By: | BARCLAYS CAPITAL INC. | |||
By: | /s/ Xxxxxx Xxxxxxx | |||
Name: | Xxxxxx Xxxxxxx | |||
Title: Director | ||||
By: | CITIGROUP GLOBAL MARKETS INC. | |||
By: | /s/ Xxxxxx Xxxxx | |||
Name: | Xxxxxx Xxxxx | |||
Title: Vice President |
-33-
SCHEDULE A
PRINCIPAL | ||||
AMOUNT OF | ||||
UNDERWRITERS | NOTES | |||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated |
$ | 100,000,000 | ||
Barclays Capital Inc. |
$ | 100,000,000 | ||
Citigroup Global Markets, Inc. |
$ | 100,000,000 | ||
Credit Agricole Securities (USA) Inc. |
$ | 28,000,000 | ||
BMO Capital Markets Corp. |
$ | 12,000,000 | ||
Deutsche Bank Securities Inc. |
$ | 12,000,000 | ||
Xxxxxxx, Xxxxx & Co. |
$ | 12,000,000 | ||
KeyBanc Capital Markets Inc. |
$ | 12,000,000 | ||
RBC Capital Markets, LLC. |
$ | 12,000,000 | ||
UBS Securities LLC |
$ | 12,000,000 | ||
Total |
$ | 400,000,000 |
Sch A-1
SCHEDULE B
Issuer Free Writing Prospectus
Schedule of Free Writing Prospectuses included in the Disclosure Package:
Final Term Sheet dated November 8, 2010:
Sch D-1
Exhibit A-1
FORM OF OPINION OF THE VENTAS ENTITIES’ GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(d)(i)
TO BE DELIVERED PURSUANT TO
SECTION 5(d)(i)
The opinion of X. Xxxxxxx Xxxxx, Esq., the General Counsel of the Ventas Entities (capitalized
terms not otherwise defined herein shall have the meanings provided in the Underwriting Agreement,
to which this is an Exhibit), to be delivered pursuant to Section 5(d)(i) of the Underwriting
Agreement shall be to the effect that:
I am executive vice president and general counsel to Ventas, Inc. (“Ventas”). This letter is
being delivered to you pursuant to Section 5(d)(i) of the Underwriting Agreement (the “Underwriting
Agreement”), dated November 8, 2010, by and among you, Ventas, Ventas Realty, Limited Partnership
(the “Operating Partnership”) and Ventas Capital Corporation (“Capital Corp.,” and together with
the Operating Partnership, the “Issuers”), on the one hand, and the Underwriters on the other.
Capitalized terms not otherwise defined in this opinion are used as defined in the Underwriting
Agreement.
In connection with this opinion, I have examined the Registration Statement, any Issuer Free
Writing Prospectus, if any, the preliminary prospectus and Prospectus and any supplement thereto
and executed copies of (a) the Underwriting Agreement, (b) the Indenture, (c) the Notes, (d) the
Guarantee and (e) the Master Leases.
I have also examined original, reproduced or certified copies of such records of Ventas and
the Subsidiaries as I have deemed necessary or appropriate as a basis for the opinions hereinafter
expressed. As to various questions of fact material to this letter, I have relied upon the
representations set forth in the Underwriting Agreement, the Indenture, and the Master Leases and
certifications by officers or other representatives of Ventas and the Subsidiaries. I have assumed
the accuracy of all factual matters contained therein and have made no independent investigation or
other effort to confirm the accuracy of such factual matters.
A. | Based on the foregoing, and subject to the qualifications and assumptions set forth below, I am of the opinion that: |
(i) | Each of the Ventas Entities (a) has been duly incorporated or duly formed and is a corporation or partnership duly organized and validly existing under the laws of the jurisdiction of its organization, (b) has all requisite corporate or partnership power and authority necessary to own its property and carry on its business as now being conducted and, to the extent a party thereto, to execute, deliver and perform all of its obligations under the Underwriting Agreement, and to consummate the transactions contemplated thereby to be consummated on its part. |
A-1-1
(ii) | To my knowledge, except as set forth in each of the Registration Statement, the Disclosure Package and the Prospectus and any supplement thereto or as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or to interfere with or adversely affect the issuance and sale of the Notes or Guarantee or the consummation of the transactions contemplated by the Underwriting Agreement, there is no (A) action, suit or proceeding before or by any court, arbitrator or governmental agency, body or official, domestic, or foreign, now pending or threatened or contemplated, to which Ventas or any Subsidiary is or may be a party or to which the business, assets or property of such person is or may be subject, (B) statute, rule, regulation or order relating to or affecting Ventas or any Subsidiary that has been enacted, adopted, issued or proposed by any governmental body or agency or (C) injunction, restraining order or order of any nature by a federal or state court or foreign court of competent jurisdiction to which Ventas or any Subsidiary is or may be subject. | ||
(iii) | To my knowledge, except as described in each of the Disclosure Package and Prospectus, none of Ventas or the Issuers is in violation of its charter, bylaws or other constitutive documents and, other than as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, no default by Ventas or any Subsidiary exists in the due performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument that is described or referred to in each of the Disclosure Package and Prospectus to which Ventas or any of its Subsidiaries are a party or filed or incorporated by reference as an exhibit to any of the filings incorporated by reference into the Disclosure Package and Prospectus. | ||
(iv) | The shares of issued and outstanding capital stock, limited partnership interests or other similar ownership interests of each of the Issuers have been duly authorized and validly issued and are fully paid and non-assessable. Ventas’ authorized equity capitalization is as set forth in the documents incorporated by reference into the Disclosure Package and the Prospectus. The authorized, issued and outstanding capital stock of Ventas conforms to the descriptions thereof set forth or incorporated by reference in the Disclosure Package and the Prospectus. Except as otherwise disclosed in each of the Disclosure Package and Prospectus, based solely on a review of the applicable limited partnership agreements and corporate stock transfer ledgers, all of the issued and outstanding capital stock of each Ventas Entity (other than Ventas) that is a corporation and all of the issued and outstanding partnership interests of each Ventas Entity that is a partnership, is owned by Ventas, directly or through Subsidiaries. | ||
(v) | Each of the Master Leases has been duly authorized by one or more of Ventas and its Subsidiaries, as applicable, and is a valid and binding agreement of Ventas and/or such Subsidiaries, as the case may be, enforceable in accordance with its terms, except as such enforceability, may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting creditor’s rights generally or general equitable principles. |
A-1-2
(vi) | The Registration Statement, the preliminary prospectus, the Prospectus and each amendment or supplement to the Registration Statement, the preliminary prospectus and the Prospectus, as of their respective effective or issue dates (other than the financial statements and supporting schedules included therein or in exhibits to or excluded from the Registration Statement, as to which no opinion need be rendered) comply as to form in all material respects with the applicable requirements of the Securities Act. | ||
(vii) | The information in Ventas’ Form 10-K for the year ended December 31, 2009 and under the caption “Legal Proceedings”; and the information in Ventas’ 10-K for the year ended December 31, 2009 under the caption “Business — Significant Tenants and Operators” and “Risk Factors — Risks Arising From Our Business — We have only limited rights to terminate our management agreements with Sunrise, and we may be unable to replace Sunrise if our management agreements are terminated or not renewed” and in Ventas’ 10-Q for the quarter ended September 30, 2010 under the caption “Risk Factors - Our ownership of certain properties subject to ground lease, air rights or other restrictive agreements exposes us to the loss of such properties upon breach or termination of such agreements and limits our uses of these properties and restricts our ability to sell or otherwise transfer such properties”, insofar as such statements constitute a summary of legal matters, contracts, documents or proceedings referred to therein, fairly present in all material respects such legal matters, contracts, documents and proceedings. | ||
(viii) | The issuance, offer and sale of the Notes by the Issuers, the execution, delivery and performance of the Note Documents and the consummation by the Ventas Entities of the transactions contemplated by the Underwriting Agreement, does not and will not violate, conflict with or constitute a breach of any of the terms or provisions of or a default under (or an event that with notice or the lapse of time, or both, would constitute a default), or require consent under, or result in the creation or imposition of a lien, charge or encumbrance on any property or assets of any of Ventas or the Subsidiaries pursuant to any of the agreements that are described or referred to in each of the Disclosure Package and Prospectus to which Ventas or any of its Subsidiaries are a party or that are filed, or incorporated by reference as an exhibit to any of Ventas’ filings incorporated by reference into the Registration Statement, Disclosure Package and Prospectus, other than such violations, conflicts, breaches, defaults, failure to obtain consents or liens, charges or encumbrances not reasonably likely to result in a Material Adverse Effect. |
B. | To my knowledge, there are no contracts or other documents which are required to be described in the Prospectus or filed as exhibits to the Registration Statement by the Securities Act which have not been described or filed as exhibits to the Registration Statement or incorporated therein by reference as permitted by the Securities Act. | |
C. | The foregoing opinions are subject to the following qualifications: |
A-1-3
(i) | I am a member of the bar of the Commonwealth of Kentucky, and I do not express any opinion as to any matters governed by any laws other than the laws of the Commonwealth of Kentucky, the General Corporation Law of the State of Delaware, Limited Liability Company Act of the State of Delaware, Revised Uniform Partnership Act of the State of Delaware and the federal laws of the United States as in effect on the date of this opinion. |
D. | In addition to the matters set forth above, based upon my participation in the preparation of the Registration Statement, the Disclosure Package, the Prospectus and any supplements or amendments thereto, including the documents incorporated therein by reference, and my review and discussion of the content thereof with other representatives of Ventas and the Subsidiaries and with the independent accountants who examined the consolidated financial statements of Ventas included in the Registration Statement, the Prospectus and any documents that constitute part of the Disclosure Package including the documents incorporated by reference therein, but without having undertaken to verify, check or independently determine the accuracy or completeness or fairness (except to the extent set forth in paragraph (vii) above) of the statements of fact contained therein, no facts have come to my attention that cause me to believe that (i) either the Registration Statement or any amendments thereto, at the time the Registration Statement or such amendments became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; (ii) the Disclosure Package (except for financial statements, the notes thereto and supporting schedules and other financial data included therein included or incorporated by reference therein or omitted therefrom, as to which I need make no statement), as of the Applicable Time contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (iii) the Prospectus, as of its date or at the Closing Time, included or includes an untrue statement of a material fact, or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. |
No person or entity other than you may rely or claim reliance upon this opinion letter. This
opinion letter may not be quoted, distributed or disclosed, except to your counsel or auditors or
as required by law, without my prior written consent.
This letter speaks only as of the date hereof and is limited to the matters stated herein. I
undertake no responsibility to update or supplement this letter after the date hereof.
Very truly yours,
A-1-4
Exhibit A-2
FORM OF OPINION OF THE VENTAS ENTITIES’ COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(d)(ii)
TO BE DELIVERED PURSUANT TO
SECTION 5(d)(ii)
The opinion of Xxxxxxx Xxxx & Xxxxxxxxx LLP, counsel for the Ventas Entities (capitalized
terms not otherwise defined herein shall have the meanings provided in the Underwriting Agreement,
to which this is an Exhibit), to be delivered pursuant to Section 5(d)(ii) of the Underwriting
Agreement shall be to the effect that:
We have acted as special counsel to Ventas, Inc., a Delaware corporation (“Ventas”), in
connection with the Underwriting Agreement (the “Underwriting Agreement”), dated November 8, 2010,
by and among you, Ventas, Ventas Realty, Limited Partnership, a Delaware limited partnership (the
“Operating Partnership”) and Ventas Capital Corporation, a Delaware corporation (“Ventas Capital”
and together with the Operating Partnership, the “Issuers”), on the one hand, and the Underwriters
on the other. The Operating Partnership, Ventas Capital and Ventas are referred to herein
sometimes individually as a “Ventas Entity” and collectively as the “Ventas Entities.” This
opinion is being delivered to you pursuant to Section 5(d)(ii) of the Underwriting Agreement.
Capitalized terms not otherwise defined in this opinion are used as defined in the Underwriting
Agreement.
In connection with this opinion, we have examined (i) executed copies of: (a) the
Underwriting Agreement, (b) the Indenture, (c) the Notes, and (d) the Guarantee (collectively, the
“Operative Documents”), (ii) the Registration Statement, (iii) any Issuer Free Writing Prospectus,
(iv) the preliminary prospectus and (v) the Prospectus and any amendments or supplements thereto.
The Operative Documents are referred to herein sometimes collectively as the “Note Documents.”
We have also examined original, reproduced or certified copies of such records of the Ventas
Entities as we have deemed necessary or appropriate as a basis for the opinions hereinafter
expressed. In our examination and in rendering our opinion, we have assumed (i) the genuineness of
all signatures of all parties other than the Ventas Entities; (ii) the authenticity of all
corporate records, agreements, documents, instruments and certificates of the Ventas Entities
submitted to us as originals, the conformity to original documents and agreements of all documents
and agreements submitted to us as conformed, certified or photostatic copies thereof and the
authenticity of the originals of such conformed, certified or photostatic copies; (iii) the due
authorization, execution and delivery of all documents and agreements (including the Operative
Documents) by all parties thereto (other than the Ventas Entities to the extent party thereto) and
the binding effect of such documents and agreements (including the Operative Documents) on all
parties thereto (other than (a) the Ventas Entities to the extent party thereto and (b) for
purposes of the opinions set forth in paragraphs (v), (vii) and (viii) of Part A with respect to
enforceability against the Guarantor of the Indenture, and the Guarantee under the laws of the
State of New York, the Guarantor); (iv) the legal right and power of all parties (other than the
Ventas Entities to the extent party thereto) under all applicable laws and regulations to enter
into, execute and
deliver such agreements and documents; and (v) the capacity of natural persons. As to all
questions of fact material to such opinions, we have relied without independent check or
verification upon representations contained in the Operative Documents; the certificates of Ventas
and its officers, employees, agents and representatives; and certificates of public officials. We
have not independently investigated or verified the matters set forth therein.
A-2-1
A. | Based on the foregoing, and subject to the qualifications and assumptions set forth below, we are of the opinion that: |
(i) | Each of Ventas and Ventas Capital (a) is a corporation validly existing and in good standing under the laws of the State of Delaware, and (b) has all requisite corporate power and authority necessary to own its property and carry on its business as now being conducted and to execute, deliver and perform all of its obligations under the Note Documents, and to consummate the transactions contemplated thereby to be consummated on its part. | ||
(ii) | The Operating Partnership (a) is a limited partnership in good standing under the laws of the State of Delaware, and (b) has all partnership power and authority necessary to own its property and carry on its business as now being conducted, and to execute, deliver and perform all of its obligations under the Note Documents and to consummate the transactions contemplated thereby to be consummated on its part. | ||
(iii) | Each of the Issuers has duly authorized the Notes for issuance and sale pursuant to the Underwriting Agreement and the Indenture. | ||
(iv) | Each of the Ventas Entities has duly authorized the execution, delivery and performance of the Note Documents to which it is a party, and has duly executed and delivered each Note Document to which it is a party. | ||
(v) | The Indenture is the legally valid and binding obligation of the Ventas Entities, enforceable against each of them in accordance with its terms, and has been duly qualified as an indenture under the Trust Indenture Act. | ||
(vi) | The Notes are in the form contemplated by the Indenture and, when issued and delivered by the Issuers against payment by the Underwriters in accordance with the terms of the Underwriting Agreement and the Indenture and authenticated and delivered by the Trustee in accordance with the terms of the Indenture, will be the legally valid and binding obligations of the Issuers, entitled to the benefits of the Indenture and enforceable against the Issuers in accordance with their terms. | ||
(vii) | The Guarantee is in the form contemplated by the Indenture and, when the Notes are issued, authenticated and delivered in accordance with the terms of the Underwriting Agreement and the Indenture, will be the legally valid and binding obligations of the Guarantor, enforceable against the Gaurantor in accordance with its terms. |
A-2-2
(viii) | The execution, delivery and performance by the Ventas Entities of the Note Documents, as applicable, including the consummation of the transactions contemplated in the Underwriting Agreement and in each of the Disclosure Package and the Prospectus (including the issuance and sale of the Notes and the use of the proceeds from the sale of the Notes as described in each of the preliminary prospectus and Prospectus under the caption “Use of Proceeds”), does not and will not violate, conflict with or constitute a breach of any of the terms or provisions of or a default under (or an event that with notice or the lapse of time, or both, would constitute a default), or require consent under, or result in the creation or imposition of a lien, charge or encumbrance on any property or assets of any of the Ventas Entities, pursuant to, (a) the charter, bylaws or other constitutive documents of the Ventas Entities, (b) any federal or New York law, statute, rule or regulation applicable to any of the Ventas Entities or their respective assets or properties, or any provision of the General Corporation Law of the State of Delaware or Revised Uniform Partnership Act of the State of Delaware applicable to the Ventas Entities, (c) any judgment, order or decree of any domestic or foreign court or governmental agency or authority having jurisdiction over any of the Ventas Entities or their respective assets or properties and known to us, except such consents as have been or will be obtained or made on or prior to the Applicable Time or (d) any material agreement or instrument governing the terms of the Issuers’ indebtedness, which material agreement or instrument has been filed by Ventas as an exhibit to its most recent Annual Report on Form 10-K or any subsequent Form 10-Q, if applicable. | ||
(ix) | No consent, approval, authorization or order of, or filing, registration, qualification, license or permit of or with, any federal or New York court or governmental agency, body or administrative agency, is required to be obtained or made by any of the Ventas Entities for the execution, delivery and performance by Ventas of the Note Documents to which they are party, including the consummation of any of the transactions contemplated thereby and in the Registration Statement, the Disclosure Package or the Prospectus, including the offering, issuance, sale or delivery of the Notes, except (a) such as have been or will be obtained or made on or prior to the Applicable Time, (b) such as may be required under the Securities Act, applicable state securities laws, blue sky laws of any jurisdiction and from FINRA in connection with the purchase and distribution of the Notes by the Underwriters (as to which we express no opinion). | ||
(x) | To our knowledge, (a) there does not exist any judgment, order, injunction or other restraint issued or filed with respect to the transactions contemplated by the Underwriting Agreement or in the Disclosure Package or the Prospectus or the performance by the Ventas Entities of their respective obligations under the Note Documents, as applicable, and (b) there are no legal or governmental proceedings pending to which any of the Ventas Entities is a party or to which any of the properties of any of the Ventas Entities is subject other than proceedings described in each of the Disclosure Package or the Prospectus or that are not, individually or in the aggregate, reasonably likely to have a Material Adverse Effect. |
A-2-3
(xi) | None of Ventas, the Operating Partnership or Ventas Capital is, or after receipt of payment for the Notes will be, an “investment company” or a company “controlled” by an “investment company” incorporated in the United States within the meaning of the Investment Company Act of 1940, as amended. | ||
(xii) | Each of the Indenture, the Notes and the Guarantee conforms in all material respects to the description thereof contained in the preliminary prospectus and Prospectus. | ||
(xiii) | The statements in the preliminary prospectus and the Prospectus under the caption “Description of Notes” and “Description of the Debt Securities” insofar as such statements constitute a summary of applicable laws, rules or regulations, contracts or documents referred to therein, fairly present in all material respects such applicable laws, rules or regulations, contracts or documents. | ||
(xiv) | Each Ventas Entity is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction listed on Schedule I to this opinion. | ||
(xv) | The Registration Statement, the preliminary prospectus and the Prospectus, as of their respective effective or issue dates (other than the financial statements and supporting schedules included therein or in exhibits to or excluded from the Registration Statement, as to which we express no opinion) appear on their face to be responsive in all material respects to the requirements of the applicable forms under the Securities Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder. | ||
(xvi) | Each document filed pursuant to the Exchange Act (other than the financial statements, the notes thereto and supporting schedules included therein or omitted therefrom, as to which we express no opinion), and incorporated or deemed to be incorporated by reference in the Disclosure Package or the Prospectus, when they became effective or were filed with the Commission, as the case may be, appear on their face to be responsive in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. | ||
(xvii) | The discussion in each of the preliminary prospectus and Prospectus under the caption “Material United States Federal Income Tax Consequences” to the extent that it summarizes matters of federal income tax law, fairly summarizes such matters in all material respects. For purposes of this opinion (xviii), the terms “preliminary prospectus” and “Prospectus” does not include the documents incorporated by reference in the preliminary prospectus and the Prospectus. |
A-2-4
(xviii) | The Registration Statement has become effective under the Securities Act. To our knowledge, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment to the Registration Statement is in effect and no proceedings for such purpose have been instituted or are pending or are contemplated or threatened by the Commission and Ventas has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to use of the automatic shelf registration statement form. Any required filing of the preliminary prospectus and the Prospectus pursuant to Rule 424(b) under the Securities Act has been made in the manner and within the time period required by Rule 424(b) under the Securities Act. Any required filing of the Final Term Sheet and any other “issuer free writing prospectus” mutually expressly agreed by Ventas and you pursuant to Section 1(a)(vi) of the Underwriting Agreement to be used by Ventas and is known to us has been made pursuant to Rule 433 under the Securities Act and within the time period required by Rule 164(b) under the Securities Act. |
B. | The foregoing opinions are subject to the following assumptions, qualifications and exceptions: |
(i) | When used in this opinion, the phrases “to our knowledge” and “known to us” mean the actual knowledge of attorneys within our firm who have devoted substantive attention to matters on behalf of the Ventas Entities, as applicable. | ||
(ii) | The opinions expressed herein are limited to the laws of the State of New York, the General Corporation Law of the State of Delaware, the Revised Uniform Limited Partnership Act of the State of Delaware and the federal laws of the United States as in effect on the date of this opinion typically applicable to transactions of the type contemplated by the Operative Documents and to the specific legal matters expressly addressed herein, and no opinion is expressed or implied with respect to the laws of any other jurisdiction or any legal matter not expressly addressed herein. | ||
(iii) | The opinions expressed in paragraphs (i)(a), (ii)(a) and (xiv) of Part A as to the good standing or qualification to do business as a foreign corporation are based solely upon a review of certificates of government officials from applicable jurisdictions or of The Corporation Trust Company of a recent date certifying as to such matters. | ||
(iv) | The opinions in paragraphs (v) through (vii) of Part A as to enforceability are qualified (a) by the effects of applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws relating to or affecting the enforcement of creditors’ rights generally, (b) insofar as the remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any enforcement thereof may be brought, (c) insofar as proceedings therefore may be limited by general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity), including principles of commercial reasonableness and an implied covenant of good faith and fair dealing, and (d) insofar as the provisions therein providing for indemnification and contribution conflict with public policy considerations. |
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(v) | In rendering the opinions set forth in paragraph (xi) of Part A, we have not made any independent investigation of any domestic or foreign court, governmental or regulatory records to determine: (1) if there are any judgments, orders or decrees of any domestic or foreign court or governmental agency or authority having jurisdiction over any of the Ventas Entities or their respective assets or properties; (2) if there exists any judgment, order, injunction or other restraint issued or filed with respect to the transactions contemplated by the Underwriting Agreement or the Disclosure Package or the Prospectus or the performance by the Ventas Entities or their respective obligations under the Underwriting Agreement; or (3) if any action, suit, claim or proceeding has been filed or is pending to which any of the Ventas Entities is a party or to which any of the properties of any of the Ventas Entities is subject. | ||
(vi) | We express no opinion as to provisions of the Operative Documents insofar as such provisions relate to (a) the subject matter jurisdiction of a United States Federal court to adjudicate any controversy relating to the Operative Documents, (b) the waiver of inconvenient forum with respect to proceedings in any such United States Federal court, (c) the waiver of right to a jury trial, (d) the validity or enforceability under certain circumstances of provisions of the Operative Documents with respect to severability or any right of setoff, (e) limitations on the effectiveness of oral amendments, modifications, consents and waivers, or (f) the ability to enforce a Change of Control Offer (as defined in the Indenture) upon the adoption or implementation of a plan of liquidation or dissolution. |
C. | Because the primary purpose of our professional engagement was not to establish factual matters and because of the wholly or partially non-legal character of many of the determinations involved in the preparation of the Disclosure Package and the Prospectus, we are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness (except to the extent set forth in paragraphs A(xiii) and (xviii) above) of the statements contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and make no representation that we have independently verified the accuracy, completeness or fairness of such statements. However, in the course of our acting as counsel to Ventas in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus, we participated in conferences with officers and other representatives of Ventas, Xxxxxx Xxxxxx & Xxxxxxx llp, counsel for the Underwriters, Xxxxx & Young LLP, independent auditors of Ventas, Deloitte & Touche LLP, independent auditors of Atria, and the Underwriters, at which conferences the contents of the Registration Statement, the Disclosure Package, the Prospectus and any amendments and supplements thereto and the documents incorporated by reference thereto and related matters were discussed. Based upon the participation and discussions described above, however, no facts have come to our attention that cause us to believe that (i) the Registration Statement or any amendments thereto, as of its most recent effective date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; (ii) the Disclosure Package, taken together, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact |
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required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Prospectus, as of its date or at the date hereof, included or includes an untrue statement of a material fact, or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that, in the case of each of the foregoing, we have not been requested to and do not make any comment with respect to the financial statements, the notes thereto and supporting schedules included therein and the other financial and accounting data, and statistical data derived therefrom, included or incorporated by reference in the Registration Statement, the Disclosure Package or the Prospectus). |
No person or entity other than you may rely or claim reliance upon this opinion letter. This
opinion letter may not be quoted, distributed or disclosed, except to your counsel or auditors or
as required by law, without our prior written consent.
This letter speaks only as of the date hereof and is limited to present statutes, regulations
and administrative and judicial interpretations. We undertake no responsibility to update or
supplement this letter after the date hereof.
Very truly yours,
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Schedule I
Ventas Realty, | ||
Ventas, Inc. | Limited Partnership | |
Alabama Arizona California Colorado Florida Georgia Idaho Illinois Indiana Kentucky Massachusetts Maryland Michigan Minnesota Mississippi Missouri Montana Nebraska New Mexico North Carolina Ohio Oklahoma Oregon Pennsylvania South Carolina Tennessee Texas Utah Vermont Xxxxxxxx Xxxxxxxxxx Wisconsin Wyoming |
Alabama Arizona California Colorado Connecticut Florida Georgia Idaho Illinois Indiana Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Missouri Montana Nebraska New Hampshire Nevada New Mexico North Carolina Ohio Oklahoma Oregon Rhode Island South Carolina Tennessee Texas Utah Vermont Xxxxxxxx Xxxxxxxxxx Wisconsin Wyoming |
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Exhibit A-3
FORM OF TAX OPINION OF THE VENTAS ENTITIES’ COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(d)(ii)
TO BE DELIVERED PURSUANT TO
SECTION 5(d)(ii)
Commencing with Xxxxxx’ taxable year ended December 31, 1999, Ventas has been organized and has
operated in conformity with the requirements for qualification and taxation as a REIT under the
Code, and the Company’s current and proposed method of operation will en-able the Company to
continue to meet the requirements for qualification and taxation as a REIT under the Code.
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Exhibit A-4
Re: Ventas, Inc.
Ladies and Gentlemen:
We have acted as special regulatory counsel to Ventas, Inc., a Delaware corporation
(“Ventas”), in connection with the issuance and sale to the Underwriters of the Notes pursuant to
that certain Underwriting Agreement dated November 8, 2010 (the “Underwriting Agreement”) by and
among Ventas, Ventas Realty, Limited Partnership andVentas Capital Corporation, on the one hand,
and the Underwriters on the other. This letter is furnished pursuant to Section 5(d)(iv) of the
Underwriting Agreement. Capitalized terms defined in the Underwriting Agreement, used herein and
not otherwise defined herein, shall have the meanings given them in the Underwriting Agreement.
As special regulatory counsel, we have reviewed certain federal health care laws of the United
States, namely Titles XVIII and XIX of the Social Security Act (42 U.S.C. § 1395 et seq. and 42
U.S.C. § 1396 et seq., respectively), the Federal Anti-Kickback Statute (Social Security Act §
1128B(b), 42 U.S.C. § 1320a-7b(b)), the Anti-Self-Referral Law (Xxxxx Law) (Social Security Act §
1877, 42 U.S.C. § 1395nn, and as applied to the Medicaid Program by Social Security Act § 1903(s),
42 U.S.C. § 1396b(s)), the Civil False Claims Act (31 U.S.C. § 3729 et seq.) and the analogous
provisions of the Social Security Act (Social Security Act § 1128A(a), 42 U.S.C. § 1320a-7a(a)),
the Health Insurance Portability and Accountability Act of 1996 (Pub. L. No. 104-191), the Balanced
Budget Act of 1997 (Pub. L. No. 105-33), the Balanced Budget Refinement Act of 1999 (Pub. L. No.
106-113), the Medicare, Medicaid and SCHIP Benefits Improvement and Protection Act of 2000 (Pub. L.
No. 106-554), the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (Pub. L.
No. 108-173), the Deficit Reduction Act of 2005 (Pub. L. No. 109-171), the Tax Relief and Health
Care Act of 2006 (Pub. L. No. 109-432), Medicare, Medicaid and SCHIP Extension Act of 2007 (Pub. L.
No. 110-173), the Medicare Improvements for Patients and Providers Act of 2008 (Pub. L. No.
110-275), the American Recovery and Reinvestment Act of 2009 (Pub. L. No. 111-5), and regulations
promulgated thereunder (collectively, “Federal Health Care Laws”), each only as directly relevant
to certain statements set forth in (i) the Disclosure Package, (ii) the Prospectus, (iii) the
Registration Statement and (iv) Ventas’ Annual Report on Form 10-K for the fiscal year ended
December 31, 2009 (“Form 10-K”) under certain captions hereinafter set forth.
This opinion is limited to the Federal Health Care Laws, and we express no opinion with
respect to any other Federal laws, the laws of any other jurisdiction, any matters of municipal
law, or the laws of any local agencies within any state. Various issues concerning tax, corporate
and various other matters are addressed in the respective opinions of X. Xxxxxxx Xxxxx (Ventas’
Executive Vice President, Chief Administrative Officer, General Counsel and Secretary), and Xxxxxxx
Xxxx & Xxxxxxxxx LLP (general counsel and tax counsel for Ventas), which have been separately
provided to you, and we express no opinion with respect to any of those matters. Except as
specifically provided for herein, we express no opinion as to the accuracy, completeness or
fairness of the statements, including without limitation any statements regarding any financial
impact or effect of the Federal Health Care Laws contained in the Registration Statement, Disclosure
Package and Prospectus, Form 10-K, Underwriting Agreement, or any schedules, exhibits,
attachments or any other documents related thereto or otherwise incorporated therein by reference,
nor have we made any independent check or verification thereof.
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Subject to the foregoing and the other matters set forth herein, it is our opinion that:
The statements set forth in each of the “preliminary prospectus” (as such term is
defined in the Underwriting Agreement) and Prospectus under the captions “Risk
Factors—Risks Arising from Our Business—Our tenants, operators and managers, may be
adversely affected by increasing healthcare regulation and enforcement,” “—Changes in
the reimbursement rates or methods of payment from third-party payors, including the
Medicare and Medicaid programs, could have a material adverse effect on certain of our
tenants and operators,” and “—Our operators may be sued under a federal whistleblower
statute” (collectively, the “Statements”), insofar as such Statements purport to
constitute summaries of Federal Health Care Laws, are, as of the date of the
preliminary prospectus or the Prospectus, as the case may be, accurate in all material
respects with regard to the regulation of skilled nursing facilities and long-term
acute care hospitals.
The statements incorporated by reference into the Registration Statement, the
“preliminary prospectus” (as such term is defined in the Underwriting Agreement) and
the Prospectus and set forth in the Ventas’ Form 10-K under the captions
“Business—Governmental Regulation — Healthcare Regulation,” “Risk Factors — Risks
Arising from Our Business — Our tenants, operators and managers may be adversely
affected by increasing healthcare regulation and enforcement,” “—Changes in the
reimbursement rates or methods of payment from third-party payors, including the
Medicare and Medicaid programs, could have a material adverse effect on certain of our
tenants and operators,” and “—Our operators may be sued under a federal whistleblower
statute” (the “Form 10-K Statements”), insofar as such Form 10-K Statements purport to
constitute summaries of Federal Health Care Laws, are, as of the date the Form 10-K was
filed with the U.S. Securities and Exchange Commission, accurate in all material
respects with respect to the regulation of skilled nursing facilities and long-term
acute care hospitals.
Very truly yours,
Xxxxxxxxx Xxxxxxx, LLP
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