VENTAS REALTY, LIMITED PARTNERSHIP VENTAS CAPITAL CORPORATION $700,000,000 4.750% Senior Notes due 2021 UNDERWRITING AGREEMENT Dated May 10, 2011 Barclays Capital Inc. Citigroup Global Markets Inc. Deutsche Bank Securities Inc. Goldman, Sachs & Co.
Exhibit 1.1
VENTAS REALTY, LIMITED PARTNERSHIP
VENTAS CAPITAL CORPORATION
VENTAS CAPITAL CORPORATION
$700,000,000 4.750% Senior Notes due 2021
UNDERWRITING AGREEMENT
Dated May 10, 2011
Dated May 10, 2011
Barclays Capital Inc.
Citigroup Global Markets Inc.
Deutsche Bank Securities Inc.
Xxxxxxx, Xxxxx & Co.
Citigroup Global Markets Inc.
Deutsche Bank Securities Inc.
Xxxxxxx, Xxxxx & Co.
May 10, 2011
Barclays Capital Inc.
Citigroup Global Markets Inc.
Deutsche Bank Securities Inc.
Xxxxxxx, Xxxxx & Co.
Credit Agricole Securities (USA) Inc.
KeyBanc Capital Markets Inc.
Banco Bilbao Vizcaya Argentaria, S.A.
RBC Capital Markets, LLC
c/o
BARCLAYS CAPITAL INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Citigroup Global Markets Inc.
Deutsche Bank Securities Inc.
Xxxxxxx, Xxxxx & Co.
Credit Agricole Securities (USA) Inc.
KeyBanc Capital Markets Inc.
Banco Bilbao Vizcaya Argentaria, S.A.
RBC Capital Markets, LLC
c/o
BARCLAYS CAPITAL INC.
000 Xxxxxxx 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 Citigroup Global Markets Inc., Barclays Capital Inc., Deutsche Bank Securities Inc. and
Xxxxxxx, Xxxxx & Co. 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 $700,000,000 aggregate principal
amount of 4.750% Senior Notes due 2021 (the “Notes”). The Notes will be issued under an
indenture dated as of September 19, 2006, as supplemented by a fourth 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.
(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. 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 (collectively, 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
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defined herein), did not and
will not 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, under 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
5:01 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 in Section 6(b) 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.
(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 of its obligations under the Guarantee. A “Material Adverse
Effect” means any material adverse effect on the business, condition (financial or
otherwise), 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 described 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, 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 at 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 the Financial Industry Regulatory Authority, Inc. (“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 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
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.
(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 the 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.
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(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 March 31, 2011, neither
Ventas nor any Subsidiary had incurred any material liabilities or obligations, direct or
contingent, that were not set forth in Ventas’ consolidated balance sheet as of March 31,
2011, 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 Xxxxxx 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 Exchange
Act 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,
the 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 otherwise) 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 registered public accounting firm with respect to Ventas, as required by the
Securities Act 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 related notes thereto included in the Base Prospectus, the Disclosure Package and the
Prospectus have been
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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 Form 10-K/A filed on March 1, 2011 (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 Xxxxxx’s Proxy Statement for the
2011 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 or the Exchange Act, 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., Nationwide Health Properties,
Inc. (“NHP”) 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 “Atria 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 Atria Merger Agreement.
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(xliii) NHP Representations and Warranties. To the knowledge of the Ventas
Entities, all of the representations and warranties made by NHP in Article IV of the
Agreement and Plan of Merger dated as of February 27, 2011 by and among Ventas, NHP and the
other parties thereto (the “NHP Merger Agreement”) are true and correct (without
giving effect to any limitation as to “materiality” or “Company 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 “Company 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 NHP Merger
Agreement.
(xliv) 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.
(xlv) 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.
(xlvi) No Conflict with OFAC Laws. None of the 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.
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(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.
(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
May 17, 2011, 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 98.482% of the principal amount thereof, plus accrued and unpaid
interest, if any, from May 17, 2011 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 as the Representatives, in their sole judgment, have determined is advisable and
practicable.
(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.
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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.
(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;
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(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;
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
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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.
(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).
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(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.
(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.
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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.
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(i) Since March 31, 2011, 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 March 31, 2011 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 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 and the Exchange Act, 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 have been any event
or development in respect of the business or condition (financial or otherwise) 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
15c3-1(c)(2)(vi)(F) under the Exchange 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
-22-
(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 the Closing Time, and a 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.
(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 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) Accountant’s Comfort Letter — NHP. 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 NHP and its subsidiaries and certain financial information
contained in the Disclosure Package.
-23-
(j) 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 (including any pro forma
presentation) 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 the Closing Time.
(k) 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 the Closing Time.
(l) Bring-down Comfort Letter — NHP. 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(i) hereof, except
that (i) it shall cover the financial information in the Prospectus relating to NHP 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
the Closing Time.
(m) 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.
(n) Notes and Indenture. The Notes and the Indenture shall be executed by each Ventas
Entity in substantially the form previously delivered to the Underwriters.
(o) Additional Documents. At the 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.
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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;
(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.
-25-
(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 indemnified parties
shall be selected by Ventas, 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 of Section 6(b)), representing the indemnified parties who
-26-
are parties to such action) or (ii) the indemnifying party shall not have employed counsel reasonably 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.
(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.
-27-
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.
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.
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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 the 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 otherwise), 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 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, 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.
-29-
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.
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.
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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 Barclays Capital Inc., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, fax: (000) 000-0000, attention: Syndicate Registration,
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.
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.
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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 Securities 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 Securities 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.
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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/ X. Xxxxxxx Xxxxx | |||
Name: | X. Xxxxxxx Xxxxx | |||
Title: | Executive Vice President, Chief Administrative Officer, General Counsel and Secretary |
|||
VENTAS REALTY, LIMITED PARTNERSHIP |
||||
By: | Ventas, Inc., its General Partner |
By: | /s/ X. Xxxxxxx Xxxxx | |||
Name: | X. Xxxxxxx Xxxxx | |||
Title: | Executive Vice President, Chief Administrative Officer, General Counsel and Secretary |
VENTAS CAPITAL CORPORATION |
||||
By: | /s/ X. Xxxxxxx Xxxxx | |||
Name: | X. Xxxxxxx Xxxxx | |||
Title: | Executive Vice President, Chief Administrative Officer, General Counsel and Secretary |
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CONFIRMED AND ACCEPTED, as of the date first above written: |
||||
CITIGROUP GLOBAL MARKETS INC. BARCLAYS CAPITAL INC. DEUTSCHE BANK SECURITIES INC. XXXXXXX, XXXXX & CO. |
||||
For themselves and on behalf of the several Underwriters |
||||
By:
|
CITIGROUP GLOBAL MARKETS INC. | |||
By:
|
/s/ Xxxxx Xxxx
|
|||
Title: Vice President | ||||
By:
|
BARCLAYS CAPITAL INC. | |||
By:
|
/s/ Xxxxxx Xxxxxxx | |||
Name: Xxxxxx Xxxxxxx | ||||
Title: Director | ||||
By:
|
DEUTSCHE BANK SECURITIES INC. | |||
By:
|
/s/ Xxxxx Xxxxxxxx | |||
Name: Xxxxx Xxxxxxxx | ||||
Title: Director | ||||
By:
|
/s/ Xxxx X. XxXxxx | |||
Name: Xxxx X. XxXxxx | ||||
Title: Director | ||||
By:
|
XXXXXXX, XXXXX & CO. | |||
By:
|
/s/ Xxxxxxx, Xxxxx & Co. | |||
Xxxxxxx, Xxxxx & Co. |
-34-
SCHEDULE A
PRINCIPAL | ||||
AMOUNT OF | ||||
UNDERWRITERS | NOTES | |||
Barclays Capital Inc. |
$ | 140,000,000 | ||
Citigroup Global Markets Inc. |
$ | 140,000,000 | ||
Deutsche Bank Securities Inc. |
$ | 140,000,000 | ||
Xxxxxxx, Xxxxx & Co. |
$ | 140,000,000 | ||
Credit Agricole Securities (USA) Inc. |
$ | 56,000,000 | ||
KeyBanc Capital Markets Inc. |
$ | 56,000,000 | ||
Banco Bilbao Vizcaya Argentaria, S.A. |
$ | 14,000,000 | ||
RBC Capital Markets, LLC |
$ | 14,000,000 | ||
Total |
$ | 700,000,000 |
Sch A-1
SCHEDULE B
Issuer Free Writing Prospectus
Schedule of Free Writing Prospectuses included in the Disclosure Package:
Final Term Sheet dated May 10, 2011:
Sch B-1
Exhibit A-1
FORM OF OPINION OF THE VENTAS ENTITIES’ GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(d)(i)1
TO BE DELIVERED PURSUANT TO
SECTION 5(d)(i)1
1 | To be substantially consistent with the opinion delivered on November 16, 2010. |
A-1-1
Exhibit A-2
FORM OF OPINION OF THE VENTAS ENTITIES’ COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(d)(ii)2
TO BE DELIVERED PURSUANT TO
SECTION 5(d)(ii)2
2 | To be substantially consistent with the opinion delivered on November 16, 2010. |
A-2-1
Exhibit A-3
FORM OF TAX OPINION OF THE VENTAS ENTITIES’ COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(d)(ii)3
TO BE DELIVERED PURSUANT TO
SECTION 5(d)(ii)3
3 | To be substantially consistent with the opinion delivered on November 16, 2010. |
A-3-1
Exhibit A-4
FORM OF OPINION OF XXXXXXXXX XXXXXXX LLP
TO BE DELIVERED PURSUANT TO
SECTION 5(d)(iii)4
TO BE DELIVERED PURSUANT TO
SECTION 5(d)(iii)4
4 | To be substantially consistent with the opinion delivered on November 16, 2010. |
A-4-1